Kishor S/O Shamrao Dongre vs Smt. Rohini W/O Kishor Dongre
2017 Latest Caselaw 4868 Bom

FCA  354/14                                           1                            Judgment

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR.
                  FAMILY COURT APPEAL No. 354/2014

Kishor S/o Shamrao Dongre,
aged About 40 years, Occu-Agent in
Sahara India, R/o Bhandar Mohalla,
Indora, Post Bazonbagh, behind
Nagsen School, Nagpur.                                                           APPELLANT

                                     .....VERSUS.....

Smt.Rohini W/o Kishor Dongre,
aged About 35 years, occu-Private Service,
R/o Bhandar Mohalla, Indora,
Post Bazonbagh, behind
Nagsen School, Nagpur.                                                          RESPONDENT

                       Shri J.D. Bastian, counsel for the appellant.
                       Shri S.D. Malke, counsel for the respondent.


                                      CORAM :SMT.VASANTI  A  NAIK AND
                                                    A.D. UPADHYE, JJ.                  

                                                                       ST
                                                                               JULY,      2017.

ORAL JUDGMENT (PER : A.D. UPADHYE, J.)

Being aggrieved by the judgment and decree, dated

10.10.2013 passed by the Family Court No.4, Nagpur in Petition No.A-4

of 2010, the appellant-original petitioner has preferred this appeal. The

respondent-Wife is the original respondent.

2. Brief facts of the case are stated as under:-

The appellant had filed a petition under Section 13-1(ia) of

the Hindu Marriage Act for dissolution of marriage before the Family

Court, Nagpur. The appellant had pleaded that the marriage between

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him and the respondent was solemnized on 06.07.1997 at Khairi

Bouddha Vihar, Nagpur as per Buddhist custom and rites. After

solemnization of the marriage, the respondent-Wife went to reside with

the appellant at her matrimonial house. It is pleaded that there is a

female issue, viz. Mithila born on 16.09.2001 from the wedlock. The

appellant further contended that the respondent is hot tempered lady and

quarrelsome one. She used to pick up quarrel on very petty matters. She

always used to torture her husband by not preparing food and not doing

other household work. It is further pleaded that he used to tolerate these

acts of the respondent with a hope that one or the other day, the

respondent would realize her fault and mend her attitude towards the

appellant and his old parents. According to him, the respondent used to

torture her father-in-law. She also did not take care of her daughter.

According to him, his father owned a two storeyed building. The

respondent used to say that she wants entire ground floor portion and the

same may be transferred in her name. According to him, on the first floor

of the building, one widow lady, viz. Chhaya Mendhe resided on rent and

she used to pay rent to his father. Said Chhaya Mendhe used to take care

of his father as well as daughter Mithila. According to him, the

respondent used to doubt about said Chhaya Mendhe regarding

relationship with him. According to him, said Chhaya Mendhe had a

daughter and she used to play together with his daughter and as such

developed good relations with the appellant's family. The appellant

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further contended that the respondent used to give threats that she would

commit suicide if they would not transfer the ownership rights of ground

floor portion in her name and had also attempted the same twice.

According to him, due to the said act, he himself and his parents became

very depressed and frightened. According to him, the respondent is

residing in the said house but they were not having relationship of

husband and wife since last more than six months. The appellant had

therefore filed the petition for decree of dissolution of marriage before the

Family Court.

3. The respondent-Wife appeared in the proceedings and filed

her written statement at Exhibit 18A and resisted the claim of the

petitioner. She admitted that her marriage was solemnized on

06.07.1997 at Khairi Bouddha Vihar, Nagpur as per Buddhist custom and

rites. She also admitted that the female issue Mithila was born on

16.09.2001 from the wedlock, however, she denied that she is hot

tempered and quarrelsome lady, as alleged. She also denied that the

appellant used to tolerate all the cruel acts of the respondent as

contended. She denied that she used to torture her father-in-law. She

admitted that the father of the appellant has constructed two storeyed

building at the above place, however, she denied that she used to say that

she want the entire ground floor to be transferred in her name. She

stated that on the first floor of the above building, one widow, viz.

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Chhaya Mendhe reside on rent and she used to pay rent to the father of

the appellant. However, she denied that said Chhaya Mendhe used to

take care of the father of the petitioner and her daughter Mithila.

According to her, the husband is having illicit relationship with Chhaya

Mendhe and therefore the appellant wants to get rid of the respondent

and treating her with cruelty. She denied that her daughter and the

daughter of Chhaya Mendhe used to play together and therefore a good

relationship is developed with the family of the husband. She denied that

she used to give threat to the appellant and his parents that she would

commit suicide if they would not transfer the ownership rights of the

ground floor portion of the house in her name. All other adverse

allegations are denied by her and lastly it is submitted that the petition

filed by the husband be dismissed.

4. After framing the necessary issues, recording of evidence in

the matter and hearing both the sides, the learned Family Court has

dismissed the petition filed by the husband by its judgment dated

10.10.2013. The said judgment and decree is assailed by the original

petitioner by way of instant family court appeal on the grounds

mentioned in the appeal memo.

5. We have heard Shri J.D. Bastian, Advocate for the appellant

and Shri S.D. Malke, Advocate for the respondent, at length.

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6. Shri J.D. Bastian, the learned counsel for the appellant, has

vehemently submitted that the learned Judge of the Family Court did not

consider the evidence on record in proper perspective and wrongly

dismissed the petition. The learned counsel has heavily relied upon

Exhibit 62 and submitted that the appellant is not the father of child,

whose mother is Chhaya Mendhe. He further submitted that the

appellant has no illicit relations with said Chhaya. He submitted that the

respondent has also not proved the said fact. He further submitted that

the appellant has proved the cruelty by adducing evidence in the matter

and prayed for a decree of divorce.

7. Shri Malke, the learned counsel for the respondent, supported

the judgment of the Family Court and sought for the dismissal of the

appeal.

8. From the aforesaid facts and circumstances of the case and on

hearing the learned counsel for the parties, it appears that the following

points arise for determination in this family court appeal:-

I) Whether the husband proves that the respondent has treated

him with cruelty?

II) Whether the husband is entitled to a decree of divorce on the

ground of cruelty?

IV)           What order?




 FCA  354/14                                         6                           Judgment

9. We have already mentioned the pleadings of the parties in the

above paragraphs. Therefore, the evidence adduced by the parties only

needs to be considered. The appellant has tendered his evidence by filing

affidavit in examination-in-chief and asserted the contents made in the

petition. He was cross-examined at length on behalf of the respondent-

Wife. In the cross-examination, he has stated that he has not specified

the instances of the quarrel picked up by the wife in the affidavit filed by

him. He denied that he has relations with Chhaya as husband and wife.

He also denied that on 17.06.2010, Chhaya begotten a son from him at

Mukherjee Nursing Home. He showed ignorance about the operation and

the delivery intimation given by the said nursing home to the Nagpur

Municipal Corporation, Nagpur. The birth extract, Exhibit 44, was

referred to him in the cross-examination, however, he denied the said

document. In the cross-examination, he has admitted that his wife has

filed complaint in Police Station Jaripatka in respect of the quarrel picked

up by him and his parents on 29.11.2009. He denied that his wife never

ill-treated him or misbehaved with him. He denied that he himself, his

parents and Chhaya ill-treated the respondent and tried to drove her out

of the house.

10. The respondent-Wife has also tendered her evidence by way

of affidavit and asserted the contents pleaded by her in the written

statement. In the cross-examination, she stated that her in-laws are

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residing at Indora, Nagpur so also her parents are residing in the same

locality. In the cross-examination, she stated that her mother-in-law is an

old lady and cannot do any work and her father-in-law is also 75 years

old, however, she denied the suggestion given to her that she is not

providing early meals to her in-laws. She denied the suggestion given by

the husband in respect of quarrel picked up by her. In the cross-

examination, she denied that she has levelled false allegations against her

husband about illicit relations with Chhaya. In the cross-examination, she

admitted that she has taken electric and water meter in her parents name

in the matrimonial house. She denied that she misbehaved with her

husband and her in-laws.

11. Besides her evidence, the respondent examined Dr.Shilpa

Shantanu Mukherjee, who runs the nursing home styled as Mukherjee

Nursing Home at Indora. In her evidence, the doctor has stated that on

17.06.2010, patient Chhaya Dongre was admitted in her hospital for

delivery by cesarean operation. She has also deposed that her husband

had consented in writing and after consent she performed the operation.

She was shown the birth certificate Exhibit 44 issued by the Nagpur

Municipal Corporation, Nagpur and she admitted that the place of birth of

the child is shown as Mukherjee Hospital and the name of mother is

Chhaya and father is Kishor. She was cross-examined by the petitioner.

In the cross-examination, Form No.1, Exhibit 62, was shown to her. She

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admitted that in Exhibit 62, the name of the father is shown as Sanjay

Ramrao Dongre as name of the father of the child and the name of the

mother is mentioned as Chhaya Sanjay Dongre. It was suggested to her

that she is deposing false at the instance of the respondent that the

appellant identified himself to be the husband of Chhaya at the time of

admission of Chhaya in the hospital, however, the doctor denied the said

suggestion.

12. On perusal of the oral as well as documentary evidence on

record, it appears that the appellant has made vague pleadings about

cruelty by the wife in the petition filed by him before the Family Court.

The evidence adduced by him is on the same line. No specific instances

are quoted by him in the pleadings. However, in the cross-examination of

the respondent-Wife, she was given a suggestion about the same, however

she denied it. There is no evidence on record to show that the wife has

ill-treated the husband. On the contrary, the allegation made by the wife

against the husband about the illicit relations with Chhaya are proved by

cogent evidence, the oral as well as documentary evidence. Admittedly,

Chhaya is residing on the first floor though as a tenant. The said fact is

not disputed by the husband. The respondent-Wife has clearly deposed

that Chhaya Dongre gave birth to a male child in the Mukherjee Nursing

Home. The husband has denied the said fact even when Exhibit 44, the

birth extract, was shown to him. Exhibit 44 is a public document issued

FCA 354/14 9 Judgment

by the Nagpur Municipal Corporation, Nagpur. A perusal of the same

reveals that the date of birth of Mayank is shown as 17.06.2010 and the

name of the father is shown as Kishor Shamrao Dongre and the name of

mother is shown as Chhaya. The said document being the public

document is having presumptive value and no formal proof is required for

proving the same. The said document can be read in evidence. The only

option left for the husband is to rebut the said document. The appellant

has heavily relied on the document Exhibit 62, i.e. Form No.1, sent by

Mukherjee Nursing Home to the Nagpur Municipal Corporation, Nagpur.

In the said document, though the name of the father is shown as Sanjay

Dongre and the name of mother is mentioned as Chhaya but this

document is not proved by the appellant-Husband. The author of the said

document is not examined. Moroever, Dr.Shilpa Mukherjee examined by

the respondent-Wife has clearly deposed before the Court that the

appellant-Husband is the person who had brought Chhaya in the hospital

and signed the consent form. The delivery being cesarean delivery, the

the person who brought the patient to the hospital for delivery needs to

sign the consent form. The evidence of the doctor is sufficient to prove

that the petitioner has brought Chhaya in the hospital and stated that he

is the husband of Chhaya. The document, Exhibit 44, corroborates the

oral testimony of the respondent as well as Dr.Shilpa Mukherjee. The

learned Family Court has considered the oral as well as the documentary

evidence in its proper perspective and rightly held that the respondent

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has proved the fact that the appellant-Husband has illicit relationship

with Chhaya Dongre. The husband, therefore, cannot take advantage of

his own wrong. Moreover, he has not proved the cruelty on the part of

the wife. The findings recorded by the Family Court are based on

relevant and admissible evidence and need to be confirmed. The appeal

filed by the appellant-Husband is devoid of any merit and is liable to be

dismissed. Hence, the following order is passed.

I)             The family court appeal is hereby dismissed.

II)            No order as to costs.

III.           A decree be drawn up accordingly.



               JUDGE                                          JUDGE



APTE