Shri. Rakesh S/O. Manohar Karwade vs Smt. Laxmi @ Kiran W/O. Rakesh ...
2017 Latest Caselaw 3351 Bom

FCA  69/16                                            1                             Judgment

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   NAGPUR BENCH, NAGPUR.
                   FAMILY COURT APPEAL No. 69/2016
Shri Rakesh S/o Manohar Karwade,
Aged about- 40 yrs., Occ.- Service,
R/o 767, Nagsenwan, Vinoba Bhave
Nagar, Nagpur.                                                                   APPELLANT

                                     .....VERSUS.....

Smt.Laxmi @ Kiran W/o Rakesh Karwade,
Aged about- 40 yrs., Occ.- Housewife,
R/o. Room No.47, C/o Bhau Wahane 
Lokvihar Park, Bhilgaon, Kamptee,
Tah. Kamptee, Dist. Nagpur.                                                       RESPONDENT

                      Shri N.R. Bhishikar, counsel for the appellant.
                       Shri R.P. Dhale, counsel for the respondent.


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

DATE : 20 TH JUNE, 2017.

ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)

By this family court appeal, the appellant-Husband challenges

the judgment of the Family Court, dated 30.11.2015 dismissing the

petition filed by him for a decree of divorce under Section 13(1)(ia) of

the Hindu Marriage Act.

2. Few facts giving rise to the appeal are stated thus:-

The appellant-Husband (hereinafter referred to as 'the

husband' for the sake of convenience) was married with the respondent-

Wife (hereinafter referred to as 'the wife') at Buddhabhoomi, Nagpur on

09.04.2001 as per rights and custom prevailing in their community. The

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marriage was a love marriage but the same was solemnized after securing

the consent of the parents of both the parties. After the marriage, the

parties started residing together at Kalyan, where the husband was

serving as a constable in Reserved Police Force. In the petition filed by

the husband for a decree of divorce on the ground of cruelty, it is pleaded

that the parties were residing at Kalyan and the other members of family

were residing at Nagpur. It is pleaded that the parties happily resided

together for only one year and thereafter, the wife started troubling the

husband both, physically and mentally. Two girls were born from the

said wedlock and Ku.Vidita and Nidhita were aged about eight years and

6 years at the time of filing of the petition. It is pleaded by the husband

that the wife always suspected his character. It is pleaded that she used

to confront him in respect of his suspected affairs and used to fight with

him in a very loud voice. It is pleaded that the wife used to call his

friends and his colleagues at the office so as to enquire about his

relationship with women. It is pleaded that the wife always did this with

a view to defame the husband. It is pleaded that the wife was in the habit

of checking the purse of the husband and used to always ask for money.

It is pleaded that the wife was very adamant and quarrelsome and did not

fulfill the wishes of the husband. It is pleaded that the wife refused to

have sexual relationship with the husband by stating that she was upset

because of his illicit relationship with other women. It is pleaded that the

husband felt very ashamed due to the behaviour of the wife and though

FCA 69/16 3 Judgment

he tried to give an understanding to the wife, the wife never changed her

ways. It is pleaded that in the year 2008, the wife started quarreling with

the husband in respect of his illicit relationship with the other women and

she had visited the office of the husband along with his daughters in the

school uniform. It is pleaded that in the year 2009, the parents and the

cousin sister of the husband came to Kalyan to stay with the parties but

the wife did not approve about the visit of the guests and created a scene.

It is pleaded that the wife did not do the household work and did not rise

early in the morning with a view to harass the husband. It is pleaded that

because of the behaviour of the wife, the husband was fed up and it was

not possible for him to stay with the wife under one roof. It is pleaded

that the wife used to abuse the husband and his family members in filthy

language. It is pleaded that the wife left the company of the husband at

the end of July-2011 and the parties are living separately since then. On

the aforesaid pleadings, the husband sought a decree of divorce on the

ground of cruelty.

3. The wife filed the written statement and denied the claim of

the husband. All the adverse allegations made by the husband against the

wife were denied by the wife. The wife pleaded that till the birth of both

the daughters, the husband and the wife were residing happily. It is

pleaded that the husband had bad vices. It is pleaded that the husband

was in the habit of drinking and in the intoxicated state, he used to beat

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the wife. It is pleaded that the wife was physically beaten by the husband

on a number of occasions, sometimes by the blows of fists and legs and

sometimes, he used to pull the wife by her hair. It is pleaded that the

wife became aware that the husband was interested in Meena Shinde,

who was a bar girl. The wife pleaded that the husband had an illicit

relationship with Yashoda Bhisikar after he was transferred to Nagpur in

the month of February-2012. The wife pleaded that the husband was

living with Yashoda Bhisikar who was his classmate till his matriculation.

The wife pleaded that the character of the husband was not good and that

he had told the wife that he would not break his ties with Yashoda. It is

pleaded that the wife had not levelled false or baseless allegations against

the husband and her allegations were true and correct. The wife stated

about the cruel behaviour of the husband in detail in her written

statement. The wife pleaded that the husband had treated the wife badly

and by filing the petition for a decree of divorce, he was taking advantage

of his own wrong. The wife sought for the dismissal of the petition filed

by the husband.

4. On the aforesaid pleadings of the parties, the Family Court

framed the issues and the parties tendered the evidence. The husband

examined himself and closed the evidence on his side. The wife also

examined herself and did not examine any other witness. On an

appreciation of the evidence tendered by the parties, the Family Court, by

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the judgment dated 30.11.2015, dismissed the petition filed by the

husband. The husband has challenged the judgment of the Family Court

in this appeal.

5. Shri Bhishikar, the learned counsel for the husband,

submitted that the Family Court was not justified in refusing to grant a

decree of divorce in favour of the husband. It is submitted that the wife

had levelled reckless allegations against the husband in respect of his

illicit relationship with the other women and had failed to prove the

same. It is submitted that levelling of reckless allegations pertaining to

the character of a spouse and failing to prove them would itself

tantamount to cruelty. It is submitted that merely because the husband

had admitted in the cross-examination that he was living in the house of

Yashoda Bhisikar, the Family Court could not have recorded a finding

that the allegations levelled by the wife against the husband were proved.

It is submitted that it cannot be gauged from the cross-examination of the

husband, in what capacity he was living with Yashoda in her house. It is

submitted that though a reference was made by the wife about the

relationship of the husband with Meena Shinde, a bar girl, the wife had

failed to prove the same. It is submitted that it is apparent from the

evidence of the wife that she was not ready to cohabit with the husband

as she had admitted that she had not filed any proceedings for restitution

of conjugal rights. It is submitted that the Family Court has not

FCA 69/16 6 Judgment

appreciated the evidence of the parties in the right perspective while

dismissing the petition filed by the husband for a decree of divorce. It is

submitted that the husband has treated his daughters with utmost love

and affection and that shows that the husband would have resided

happily with the wife if the wife had not suspected his character and not

ill-treated him. The learned counsel relied on the judgments reported in

(2013) 5 SCC 236 (K.Srinivas Rao Versus D.A. Deepa), (2005) 2 SCC 22

(A.Jayachandra Versus Aneel Kaur), AIR 2005 Bombay 180

(Mrs.Manisha Sandeep Gade Versus Sandeep Vinayak Gade) and (2012) 7

SCC 288 (Vishwanath Agrawal Versus Sarla Vishwanath Agrawal) to

substantiate his submission that levelling of false and baseless allegations

in respect of the character of the spouse in the written statement and

failing to prove the same would tantamount to cruelty.

6. Shri Dhale, the learned counsel for the wife, has supported

the judgment of the Family Court. It is submitted that the Family Court

has rightly appreciated the evidence of the parties to refuse a decree of

divorce. It is submitted that it is clear from the admissions of the husband

in his cross-examination that the husband had illicit relationship with

Yashoda, with whom he was staying from the year 2012 and even during

the pendency of the proceedings. It is submitted that the Family Court

has rightly held, on a proper appreciation of the evidence on record that

the wife had proved that the husband had treated her with cruelty and

FCA 69/16 7 Judgment

that he had developed illicit relationship with Yashoda. It is submitted

that all was going on well with the parties but, for the relationship of the

husband with the other women as a result of which, there was some

trouble and disharmony between the parties. It is submitted that in the

circumstances of the case, the Family Court has rightly rejected the prayer

made by the husband for a decree of divorce as he had committed a

wrong by maintaining relationship with the other women during the

subsistence of his marriage and that he could not be permitted to take

advantage of his own wrong. The learned counsel sought for the

dismissal of the family court appeal.

7. On hearing the learned counsel for the parties and on a

perusal of the Record & Proceedings, it appears that the following points

arise for determination in this family court appeal.

I) Whether the husband has proved that the wife has treated him with cruelty?

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

III) What order?

8. To answer the aforesaid points for determination, it would be

necessary to refer to the pleadings of the parties and the evidence

tendered by them. We have referred to the pleadings of the parties in

detail in the earlier part of the judgment and, therefore, it would not be

FCA 69/16 8 Judgment

necessary to reiterate the pleadings at this stage. The husband examined

himself and the wife examined herself. Both the parties did not examine

any other witness. The husband reiterated the facts pleaded by him in

the petition in his evidence on affidavit. The husband was cross-

examined on behalf of the wife. The husband admitted in his cross-

examination that he was residing in the house of his friend. The husband

admitted that his friend was his classmate up to 10 th standard and he was

residing in her house for past fifteen to sixteen months. He stated in his

cross-examination that the name of his friend was Yashoda Bhisikar and

that she was residing in her house with her son aged twelve years. The

husband admitted in his cross-examination that he did not reside with his

parents as he was expelled out of their house. He however denied that he

was expelled from the house because of his illicit relationship with

Yashoda. He admitted that Yashoda's husband was no more. The

husband stated that he was not aware whether the wife had filed any

complaint against him, pertaining to his illicit relationship with Yashoda.

The husband admitted in his cross-examination that Yashoda was a

guarantor to the loan which he had secured from the bank. He, however,

denied the suggestion that he was living with Yashoda in a live-in

relationship. The husband stated in his cross-examination that his

relationship with the wife was cordial for about two years and after two

years, the quarrel started as the wife suspected his character. He denied

the suggestion that he had a love affair with the bar girl. He denied the

FCA 69/16 9 Judgment

suggestion that once the wife had found a photograph of a girl in his

pocket. The husband admitted that he stopped maintaining physical

relationship with the wife as she used to harass him. The husband denied

that he was in a habit of maintaining illicit relationship with several

women. He also denied that the suggestion that he had levelled false

allegations against the wife.

9. The wife examined herself and reiterated the facts pleaded by

her in the written statement. In her cross-examination, the wife admitted

that the parties were separated before three years and she had not issued

any legal notice to the husband and had also not filed any proceedings

against him for restitution of conjugal rights. The wife, however, denied

the suggestion that she was not ready to join the company of the

husband. The wife admitted that there was a settlement between the

parties in the proceedings filed by her under the provisions of the

Protection of Women from Domestic Violence Act and that in view of the

settlement, she had received an amount of Rs.7,79,000/- from the

husband. The wife admitted that during her stay with the husband at

Kalyan, she had tried to lodge complaints to the higher authorities in the

office of the husband but, they had not accepted the complaints. The wife

admitted that she had not lodged any complaint against the husband in

the police station. The wife stated in her cross-examination that she had

not tried to find out the personal details of Meena Shinde and the name

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of the bar where she was working. The wife had denied the suggestion

that Meena Shinde was an imaginary name used by the wife to defame

the husband. The wife denied that she had levelled false allegations in

respect of the relationship of the husband with Yashoda. The wife

admitted that Yashoda was in government service and had a son aged

sixteen years. The wife denied that Yashoda had tried to convince the

wife that she did not have any illicit relationship with the husband. The

wife denied that she had levelled false allegations about the character of

the husband.

10. On a proper appreciation of the aforesaid evidence tendered

by the parties, the Family Court rightly held that there was some

substance in the allegations levelled by the wife in respect of the illicit

relationship of the husband with Yashoda. The wife had clearly pleaded

in the written statement that after the husband was transferred to Nagpur

in the year 2012, he started residing with Yashoda Bhisikar who was his

classmate in the school. The wife had pleaded in the written statement

that the husband had illicit relationship with Yashoda Bhisikar. The

Family Court rightly held that it was necessary for the husband to explain

in his evidence as to why and in what capacity, he was residing with

Yashoda Bhisikar in her house. Yashoda had lost her husband and was

living with her son in her house at Nagpur. As per the admission of the

husband he was also living with Yashoda for about seventeen to eighteen

FCA 69/16 11 Judgment

months. The Family Court rightly held that it was necessary to believe

the case of the wife that the husband had an illicit relationship with

Yashoda. Had it not been so, the husband would have explained his

relationship with Yashoda and the reason for him to reside in her house

along with her. Moreover, the old aged parents of the husband were alive

and were also living at Nagpur. The husband had admitted in his cross-

examination that he was driven out of the house by his parents. This

would clearly reflect on the character of the husband. If the character or

behaviour of the husband was good, we doubt as to why his parents

would drive him out of the house. Though the husband has denied that

he was driven out of the house in view of his illicit relationship with

Yashoda, the fact remains that the behaviour of the husband was such

that his parents were not ready to reside with him under one roof. Not

only was the husband living with Yashoda in her house for seventeen to

eighteen months after separating from the wife but, Yashoda who is a

government employee was also a guarantor to the loan which he had

secured from the bank. Yashoda and the husband appear to be living in

the house under one roof for about seventeen to eighteen months. The

wife had, therefore, a reason to suspect the character of the husband. A

man would surely not stay with his childhood friend in one house under

one roof after separating with his wife, before his marriage is dissolved.

If the husband was living with Yashoda in her house only as a friend or as

a tenant, he could have surely come up with such a case in his evidence,

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specially when the wife had clearly pleaded in her written statement that

the husband had an illicit relationship with Yashoda and that he was

living with her under one roof. The Family Court rightly held that there

was reason for the wife to suspect the character of the husband and in the

circumstances of the case, the husband could not have been permitted to

take advantage of his own wrong. In the circumstances of the case, it

cannot be said that the Family Court was not justified in refusing to grant

a decree of divorce in favour of the husband on the ground of cruelty.

The husband had utterly failed to prove that the wife had treated the

husband with cruelty. No doubt, there is irretrievable breakdown of the

marriage between the husband and the wife but since that cannot be a

ground under which a decree of divorce could be granted, the Family

Court rightly refused to grant a decree of divorce on that ground. Since

the husband had failed to prove that the wife had treated him with

cruelty and since the wife had been successful in partially proving the

allegations levelled by her against him, the Family Court held and rightly

so that a decree of divorce could not have been passed against the wife.

In the circumstances of the case, the judgments reported in (2013) 5

SCC 236 (K.Srinivas Rao Versus D.A. Deepa), (2005) 2 SCC 22

(A.Jayachandra Versus Aneel Kaur), AIR 2005 Bombay 180

(Mrs.Manisha Sandeep Gade Versus Sandeep Vinayak Gade) and (2012) 7

SCC 288 (Vishwanath Agrawal Versus Sarla Vishwanath Agrawal) and

relied on by the learned counsel for the husband, cannot be made

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applicable to the case in hand. In all those cases, serious allegations

pertaining to the moral character of the spouse were made in the written

statement and the party making the reckless allegations had failed to

prove the same. In the present case, the husband had pleaded that the

wife was suspecting his character and the wife had admitted that she was

sometimes suspecting his character as the husband was in the habit of

maintaining illicit relationship with other women. The wife had been

successful in proving her case. In view of the admissions of the husband

in his cross-examination, it cannot be said that the wife had failed to

prove the allegations made against the husband pertaining to his

character and that the allegations were false and reckless. The Family

Court had, on a correct appreciation of the material on record, refused to

grant a decree of divorce in favour of the husband. We are not inclined to

interfere with the findings recorded by the Family Court.

In the result, the Family Court Appeal fails and is dismissed

with no order as to costs.

               JUDGE                                              JUDGE
APTE