Bombay High Court
Laxmikant S/O Ramchandra Gajbe vs Smt. Yogita W/O Laxmikant Gajbe on 25 July, 2017
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FAMILY COURT APPEAL NO.165/2014
APPELLANT: Laxmikant s/o Ramchandra Gajbe
Aged about 36 years, Occu - Service,
R/o Plot No.70, SE Railway Colony,
Rana Pratap Nagar, Nagpur.
...VERSUS...
RESPONDENT: Smt. Yogita w/o Laxmikant Gajbe,
Aged about 28 years, Occu - household,
R/o 217, Reshimbagh, Opp. C.P. & Berar
College Ground, Reshimbagh, Nagpur.
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Shri J.D. Bastian, Counsel for the appellant
Shri N.N. Thengre, Counsel for the respondent
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CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 25.07.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
By this family court appeal, the appellant - husband
challenges the judgment of the Family Court, Nagpur dated 24/08/2011
dismissing a petition filed by the appellant for a decree of divorce on the
ground of cruelty.
The appellant-husband and the respondent-wife were
married at Nagpur on 06/05/2006 as per the customs prevailing in their
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community. The marriage was an arranged marriage. The wife started
residing with the husband after the solemnization of the marriage. It is
the case of the husband in the petition filed by him for a decree of divorce
on the ground of cruelty that the wife had started ill-treating the husband
after a few months of the marriage. It is pleaded that the wife used to
ill-treat the parents of the husband and used to abuse them and give
threats. It is pleaded that though the husband advised the wife to mend
her ways, the wife did not change her ways. It is pleaded that due to the
ill-treatment by the wife, the husband was mentally disturbed. It is
pleaded that instead of taking care of the husband and his family
members, the wife visited her friends and her parents and used to spend
more time with them. It is pleaded that the wife used to avoid her
responsibility and also avoid the husband and his parents. It is pleaded
that the husband is working as an assistant station master with the
Western Central Railways and he has to perform his job with great care
and caution. It is pleaded that if the husband is under mental stress due
to the acts on the part of the wife, he would not be able to perform his job
properly and the life of several travellers and passengers would be put to
danger. It is pleaded that the wife did not serve food properly to the
husband and some times the husband was required to bring food from
restaurants and canteens. It is pleaded that the wife used to spend more
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money and live in a style that did not match with the income of the
husband. The husband pleaded that the wife started residing in her
parental home since November 2006 and though she was requested to
join the company of the husband, the wife refused to join the same. The
husband, therefore, sought a decree of divorce on the ground of cruelty
under Section 13 (1) (i-a) of the Hindu Marriage Act.
The wife filed the written statement and denied every
adverse allegation that was levelled by the husband against her. The wife
denied that she was not willing to reside in the matrimonial home and
therefore she has started residing in her parental home since November,
2007. The wife pleaded that she was residing in her parental home since
27/5/2007 and though the husband visited her parental home on two-
three occasions, he did not take her to the matrimonial home. The wife
pleaded that the husband had filed a false case against her and the
petition was liable to be dismissed.
On the aforesaid pleadings of the parties, the Family Court
framed the issues. The husband tendered his evidence on affidavit. The
husband reiterated the facts stated by him in the petition, in his evidence
on affidavit. The husband was cross-examined on behalf of the wife. The
husband admitted that the wife used to take his consent before going to
the parental house. The husband however denied that the wife did not
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misbehave with him. The husband denied that the wife did not spend
more time in her parental home. The husband admitted that he had not
filed any police complaint against her pertaining to her conduct and
behaviour. The husband denied that he had falsely stated that the wife
did not prepare food and therefore he was required to bring food from
outside. The husband denied that the wife was ready to cohabit with him.
The husband denied that he had filed a false petition against the wife to
harass her.
The husband examined his father who had retired from
service. Ramchandra Gajbe, the father of the husband stated that the
husband was under constant mental tension and pressure due to the
disharmony in the matrimony. Ramchandra stated in his evidence on
affidavit that the wife and her family members used to always threaten
the husband and his parents. Ramchandra was cross-examined on behalf
of the wife. Ramchandra admitted in his cross-examination that no
incident of misbehaviour by the wife took place in his presence. He
however denied the suggestion that the parties were not having any
complaints against each other. Ramchandra admitted that he had not filed
any police complaint against the parents of the wife though they had
threatened to kill him. Ramchandra stated in his cross-examination that
though he had tried to advise the wife, the wife did not listen him.
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The husband examined his colleague who was also working
in the Railways. Rajeshkumar Kachi stated in his evidence that the wife
used to leave her matrimonial home and did not return to the
matrimonial home till the husband went to bring her back. Rajeshkumar
stated in his evidence that when he had visited the matrimonial house,
the wife was behaving badly with the husband. In the cross-examination,
Rajeshkumar stated that on an occasion he had suggested the husband to
solve his matrimonial problems. He admitted that for about three years,
the parties were residing separately. The witness however denied that the
husband was not under mental stress while he performed his duties in the
Railways.
The wife also filed her evidence on affidavit. She denied all
the adverse allegations made by the husband against her. In her cross-
examination, the wife admitted that they had gone for the honeymoon to
Manali and at Gurha she was residing with her husband and her mother-
in-law. The wife admitted that the sister of the husband was residing with
them for eight to ten days from the beginning of the matrimonial life. The
wife however denied that there was a big quarrel between herself and her
sister-in-law. The wife denied that she had called her mother for cooking
the food. The wife admitted that after the marriage she had continued to
take education. The wife denied that she had insisted that the husband
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and wife should come to Nagpur by keeping her mother-in-law at Gurha.
The wife denied that she used to avoid household work and cooking and
therefore they were required to go to the hotel. The wife stated that there
was no hotel at Gurha where they could go to have the food. The wife
denied that she was residing with her parents for some days after the
marriage. The wife admitted that she was residing separately in her
parental house for about three to three and half years. The wife denied
that she had not made any efforts for restitution after the separation. The
wife denied that she had inflicted mental and physical cruelty on the
husband.
The wife examined Manohar Gharat. He was acquainted
with the wife and her father. He stated in his evidence that the wife is a
good natured woman and is liked by everybody in their family. He stated
in his evidence on affidavit that he did not witness any disharmony
between the parties. He further stated that in 2007, without any rhyme or
reason, the husband dropped the wife to her parental home. In his cross-
examination, the witness stated that the distance between his house and
the matrimonial house is about 15 kilometers and the house of the
parents of the wife was about 2 kilometers. He denied the suggestion that
he had abused the husband and his father. He denied the suggestion that
he was deposing falsely.
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After appreciating the evidence of the parties, by the
judgment dated 24/8/2011 the Family Court dismissed the petition filed
by the husband after holding that the husband had failed to establish that
the wife had treated him with cruelty. The judgment of the Family Court
is challenged by the husband in this family court appeal.
Shri Bastian, the learned Counsel for the husband submitted
that the Family Court was not justified in dismissing the petition filed by
the husband. It is submitted that the wife was not cooking the food for the
husband and was not performing her matrimonial duties. It is pleaded
that the wife used to frequently visit her parental home and she did not
take care of the husband and his family members. It is pleaded that the
wife used to abuse the husband and threaten the husband and his parents.
It is stated that the wife used to avoid the husband and his family
members and always used to visit her friends and her relatives. It is
submitted that though the husband has clearly proved the allegations
levelled by him against the wife, the Family Court has erroneously
rejected the petition filed by the husband for a decree of divorce.
Shri Thengre, the learned Counsel for the wife supported the
judgment of the Family Court. It is submitted that since the allegations
levelled by the husband are extremely vague, the Family Court has rightly
rejected the petition filed by the husband for a decree of divorce. It is
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stated that it was necessary for the husband to have pleaded the specific
instances pertaining to the acts of cruelty by the wife while seeking a
decree of divorce. It is submitted that the Family Court has rightly
appreciated the evidence of the parties to dismiss the petition filed by the
husband. The learned Counsel sought for the dismissal of the family court
appeal.
On hearing the learned Counsel for the parties and on a
perusal of the record and proceedings, it appears that the following points
arise for determination in this family court appeal :-
(1) Whether the husband has proved that
the wife had treated him with cruelty ?
(2) Whether the husband is entitled to a
decree of divorce on the ground of cruelty ?
(3) What order ?
We have already narrated the pleadings of the parties and
the evidence tendered by them in the earlier part of this judgment. The
allegations levelled by the husband against the wife are as vague as they
could be. The husband has not given specific instances pertaining to the
allegations levelled by him against the wife. The husband has pleaded
that the wife used to behave badly with the husband and his parents. The
said statement is however not substantiated by the husband in the
pleadings by giving instances as to how the wife behaved badly with the
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husband and his family members. The husband has pleaded that the wife
used to give threats to the husband and his family members but it is not
pleaded as to what threats were given by the wife. General allegations are
levelled by the husband that the wife did not prepare food and the
husband was required to bring food from outside. The evidence of the
husband is not convincing. A decree of divorce on the ground of cruelty
cannot be granted on the basis of general allegations levelled by a spouse
against the other, without clearly mentioning the manner in which the
other spouse has ill-treated the spouse. It would be necessary for a party
approaching the Court for a decree of divorce on the ground of cruelty to
give specific instances of the acts of cruelty. General allegations that the
wife used to avoid the husband and his family members and that she used
to often visit her parental house and her friends cannot constitute cruelty.
Though the husband has levelled the allegation that the wife used to
often leave the matrimonial house and visit the parental home, the
husband has admitted in the cross-examination that the wife always
sought his permission before going to her parental home. If that is so, the
husband cannot make a grievance that the wife used to visit her parental
home frequently. Though the husband has pleaded that the wife did not
cook the food and he was required to bring the food from outside, that is,
from hotels and canteens, a suggestion is given to the wife in her
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cross-examination that the husband and the wife were required to go to
the hotels in Gurha as the wife did not cook the food. In the pleadings,
the husband has stated that he was required to bring the food from
outside, but a suggestion is given to the wife in her cross-examination that
the husband and the wife used to go to the hotels in Gurha. If the
husband and the wife used to go to the hotels in Gurha, it cannot be said
that the parties went to the hotel as the wife was not preparing the food.
It is necessary to note that the wife has voluntarily stated in her
cross-examination that there is no hotel in Gurha and the case of the
husband that they were required to go to the hotels in Gurha as the wife
did not prepare the food is incorrect. The father of the husband had
clearly admitted in his cross-examination that the wife had not ill-treated
the husband in his presence. The Family Court has rightly considered the
evidence on record to hold that the allegations levelled by the husband
against the wife do not constitute cruelty that would entitle the husband
to a decree of divorce under Section 13 (1) (i-a) of the Hindu Marriage
Act. The Family Court rightly came to a conclusion that the conduct of the
wife was not such that she had shown total disregard to the husband and
his parents. On an appreciation of the evidence on record, we find that
the husband has not established that the wife had treated him with
cruelty. Not only are the allegations levelled by the husband against the
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wife very vague and general but the said allegations are also not proved
by the husband. The wife has categorically pleaded and also stated that
she was desirous of joining the company of the husband but the husband
did not take her to the matrimonial home despite her efforts to reside
with the husband. The Family Court has rightly come to a conclusion that
the husband was not entitled to a decree of divorce on the ground of
cruelty.
In the result, the family court appeal fails and is dismissed
with no order as to costs.
JUDGE JUDGE
Khunte and
Wadkar
