Bombay High Court
Sau. Hema W/O Mahesh @ Mahendra ... vs Mahendra @ Mahesh S/O Chintaman ... on 22 June, 2017
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FAMILY COURT APPEAL NO. 268 OF 2014
Sau. Hema w/o Mahesh @ Mahendra
Dhomne, Aged : 35 years,
Occupation : Nil, R/o C/o Sudhir Kawala,
Plot No.70, Vishwajit Layout,
Abhay Nagar, Nagpur. ..... APPELLANT
...V E R S U S...
Mahendra @ Mahesh s/o Chintaman Dhomne,
Aged : 38 years, Occupation : Service,
Resident of Defence Quarter,
Defence (Wadi), Nagpur.
AND ALSO
C/o Bhandre Wadi, Near Gajanan Mandir,
Lakdipul, Walkar Road, Nagpur. ... RESPONDENT
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Shri J. C. Shukla, Advocate for the appellant.
Shri A. K. Bhangde, Advocate for the respondent.
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CORAM:-
SMT. VASANTI A NAIK &
ARUN D. UPADHYE, JJ.
DATED :-
22/06/2017.
ORAL JUDGMENT : (Per Smt. Vasanti A Naik, J.)
By this Family Court Appeal, the appellant-wife
challenges the Judgment of the Family Court, Nagpur, dated 17 th May,
2013 rejecting the petition filed by the appellant for a decree of divorce
on the ground of cruelty.
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Few facts giving rise to the petition are stated thus :-
The appellant - wife (hereinafter referred to as the
'wife' for the sake of convenience) and the respondent - husband
(hereinafter referred to as the 'husband') were married at Nagpur on
13/03/2009 as per the Hindu Rites and Customs. After the marriage,
the parties initially resided together for about a month in Nagpur and
since the husband was working on the post of Technician in the
defence, they shifted to his quarter in Defence Colony, Wadi. It is
pleaded in the petition filed by the wife for a decree of divorce on the
ground of cruelty that within a few days of the marriage, the husband
started finding fault in each and every action of the wife. It is pleaded
that the husband started picking up quarrel with the wife on petty
matters. It is pleaded that the husband used to beat the wife in an
intoxicated state and used to abuse her in filthy language. The wife
pleaded that she was harassed physically as the husband used to
mercilessly beat her under the influence of liquor. It is pleaded that the
wife tried to give an understanding to the husband in respect of his
behaviour, but the husband did not change his ways. It is pleaded that
the husband not only used to beat and abuse the wife but also asked the
wife to get money from her parents. It is pleaded that when the wife
used to ask the husband for some money for her day-to-day expenses,
the husband used to say her that she should get the money from her
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father. The wife pleaded that the wife was mercilessly beaten in June,
2009 and was driven out of the matrimonial house. It is pleaded that
since then, the wife resided in the parental house. It is pleaded that the
wife joined the company of the husband in July, 2009 but she had to
leave her matrimonial home in October, 2009. It is pleaded that in
October, 2009, when the wife was busy in cooking food, the husband
threw the utensils on the person of the wife and asked her to leave the
matrimonial home. It is pleaded that in November, 2009, during Diwali,
the husband apologized and the wife again joined his company. The
wife pleaded that the husband used to change his ways only for few
days. It is pleaded that on 02/07/2010, on the say of the husband, the
father of the wife gave a sum of Rs.80,000/- to the husband on an
assurance that every month the husband would return a sum of
Rs.2,000/-. The wife pleaded that the assurance was only on paper and
the husband did not fulfill his promise. It is pleaded that on
22/09/2010, the husband drove the wife out of the matrimonial home
and since then, she was compelled to live in her parental house. It is
pleaded that the father of the wife suddenly expired on 11/01/2011
due to the bad behaviour and attitude of the husband. It is pleaded that
the husband received a sum of Rs.15,000/- per month as salary and the
wife would therefore be entitled to sum of Rs.7,000/- per month
towards maintenance. It is pleaded that the marriage between the
parties is irretrievably broken down and it was necessary to grant a
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decree of divorce on the ground of cruelty.
The husband denied the claim of the wife and denied
all the adverse allegations that were levelled against him. The husband
pleaded that he was taking good care of his wife while she resided in
the matrimonial home. It is pleaded that the wife had levelled vague
allegations against him in the petition for a decree of divorce. It is
pleaded that the wife used to join the company of the husband while
attending dinner or other programmes in the houses of his relatives or
friends. It is pleaded that after the marriage, he had visited his in-laws
about 50 - 60 times for breakfast, lunch and dinner. The husband
pleaded that he was suffering from Arthritis and spondylitis for the past
10 years. It is pleaded that he was asked by the wife as to whether he
was ready to become "Ghar Jamai" and stay in her father's house. The
husband denied that he used to beat the wife under the influence of
liquor or abuse her. It is pleaded that the wife was an adamant lady, but
if she desires, the parties could live under one roof. It is pleaded that
the wife had filed the petition only with a view to blackmail him. It is
pleaded that the petition was false and vexatious.
On the aforesaid pleadings of the parties, the Family
Court framed the issues. The parties tendered the evidence, both oral
and documentary. The wife examined herself and also examined Sudhir
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Kawala, her brother. The husband examined himself and closed the
evidence on his side. On an appreciation of the evidence on record, the
Family Court, by the Judgment dated 17/05/2013, dismissed the
petition filed by the wife. The wife has challenged the Judgment of the
Family Court in this appeal.
Shri Shukla, the learned counsel for the wife submitted
that the Family Court has failed to consider the unchallenged evidence
of the wife that the husband used to beat and abuse her under the
influence of liquor. It is submitted that the evidence of the wife that the
husband always asked the wife to get money from her parents has also
remained unchallenged. It is submitted that though the wife has
pleaded and proved about the ill-treatment meted out to her and there
is no cross-examination of the wife from the side of the husband on the
said aspect, the Family Court has failed to consider that the material
evidence tendered by the wife has gone unchallenged. It is submitted
that merely because the wife and the husband sometimes went out
together for purchasing household articles and sometimes accompanied
each other while attending functions and dinner at the house of their
relatives and friends, the case of the wife was not liable to be
disbelieved. It is submitted that the Family Court failed to appreciate
that her husband must have been abusing and beating the wife when he
was under the influence of liquor and was asking her to get money from
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her parents. It is submitted that the husband has admitted in his cross-
examination that he had requested the father of the wife and the wife
that he would stay as "Ghar Jamai" and that her father should give him
the First Floor of his house for the said purpose. It is submitted that
from the cross-examination of the husband and also from the query
posed to the wife in her cross-examination about the sum of Rs.25 lakhs
to Rs.30 lakhs received by her father as retiral benefits, it was clear that
the husband was interested in extracting money from the father of the
wife. It is submitted that the character of the husband was not good,
inasmuch as he was involved in two criminal cases, one under Section
506 of the Penal Code and the other under Section 394 thereof. It is
submitted that when the trial Court had noticed on the basis of the
documents that the husband had secured a sum of Rs.80,000/- from the
father of the wife, the Family Court ought to have held that the husband
was interested in extracting money from the parents of the wife. It is
submitted that it is apparent from the record that the wife belongs to a
well to do family and the husband was earning a meagre salary of
Rs.15,000/- at the time of separation, as a result of which the husband
was interested in extracting money from the parents of the wife. It is
submitted that the Family Court has not appreciated the evidence in the
right perspective while dismissing the petition filed by the wife. The
learned counsel for the wife sought for a decree of divorce for the wife
on the ground of cruelty. It is submitted that by referring to the
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documents that are produced on record that during the pendency of the
Family Court Appeal, the husband has re-married and a son is born to
the husband from the said marriage. It is submitted that since this Court
had directed the husband to pay a sum of Rs.3,000/- per month to the
wife towards maintenance, this Court may continue the order in terms
of the provisions of Section 25 of the Hindu Marriage Act and the wife
could withdraw all other proceedings filed by her against the husband
for grant of maintenance.
Shri Bhangde, the learned counsel for the husband
supported the Judgment of the Family Court. It is submitted that though
the wife had pleaded that she was driven out of the matrimonial home,
it is apparent from her cross-examination that she had left the
matrimonial home while the husband was on duty and this has falsified
the pleadings and her evidence. It is submitted that the Family Court
has rightly considered the admission of the wife that she used to
accompany her husband to the market for purchasing articles and
household items and also used to accompany him to the houses of his
relatives and friends for programmes and dinner. It is submitted that
the Family Court has rightly disbelieved the evidence tendered by the
wife and has held that the wife has failed to prove that the husband has
treated her with cruelty. It is submitted that the Judgment of the Family
Court is just and proper and calls for no interference.
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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 appeal :-
1) Whether the wife proves that the husband had
treated her with cruelty ?
2) Whether the wife is entitled to a decree of
divorce on the ground of cruelty ?
3) What order ?
To answer the aforesaid points for determination, it
would be necessary to consider the pleadings of the parties and the
evidence tendered by them. We have already narrated the pleadings of
the parties in the earlier part of the Judgment and it would therefore be
necessary to consider the evidence tendered by them. The wife had
reiterated the facts pleaded by her in the petition, in the evidence
tendered by her on affidavit. The wife was cross-examined on behalf of
the husband. The wife had admitted in the cross-examination that the
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husband has some problem to his leg and waist from the inception of
marriage. The wife admitted that the husband and the wife used to
sometimes go together for purchasing household articles. The wife
denied that she used to send her brother to follow the husband out of
the house to watch his activities. The wife admitted that she had
attended the dinner in the house of Ganesh Rakatshinge, the friend of
the husband on the occasion of Ganesh Festival. The wife admitted that
the husband and the wife used to go to her father's house for lunch and
dinner. The wife admitted that they had also visited the house of her
relative Ramesh Pogade. The wife had admitted that she had left the
house when the husband was out for his duties. The wife admitted that
she had carried all the household articles along with her while leaving
the matrimonial home. The wife stated that she was not aware that her
father had got Rs.25,00,000/- to Rs.30,00,000/- after his retirement.
The wife had admitted that when her father was admitted in the
hospital, the husband used to go to the hospital to meet him and had
also attended the last rites of her father. When the wife was asked
whether she was ready to cohabit with the husband, the wife answered
in the negative and stated that she had no faith in the husband.
The wife examined Sudhir Kawala, her brother in
support of her case. Sudhir Kawala stated in his evidence on affidavit
that time and again, the wife used to leave the matrimonial house due
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to the ill-treatment by the husband and after he apologized, she used to
again join his company. Sudhir stated in his evidence that the husband
had a whimsical nature and he used to abuse the wife and also beat her.
Sudhir admitted in the cross-examination that the husband used to
abuse the wife on telephone when she used to stay in her parental
home. Sudhir admitted that the husband used to go to the parental
home of the wife to apologize for his mistakes and take the wife to the
matrimonial home. There is nothing in the cross-examination of Sudhir
that would falsify his case in the examination-in-chief. In fact, the cross-
examination of Sudhir supports the evidence tendered by him in his
examination-in-chief.
The husband entered into the witness box and
reiterated the facts pleaded by him in the written statement. In his
cross-examination, the husband admitted that he had expressed to the
parents of the wife that he would become a "Ghar Jamai". The husband
admitted that the parents of the wife rejected his proposal in that
regard. The husband admitted that he had given a suggestion to the
parents of the wife that they should give him the First floor of their
house for residence but they denied the suggestion. The husband
admitted that he had faced trial in Criminal Case No.72/2002 and a
Summary Case was also pending against him. The husband denied the
suggestion that the father of the wife had given a sum of Rs.80,000/- to
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him with an understanding that he should return a sum of Rs.2,000/-
per month. The husband stated in his evidence that he is earning a
salary of Rs.15,000/- per month. The husband admitted that the wife
was not in service but denied the suggestion that he could pay
Rs.7,000/- to Rs.8,000/- per month to her.
On an appreciation of the evidence tendered by the
parties on record, it appears that the husband had treated the wife with
cruelty. The wife has categorically pleaded and also stated on affidavit
that the husband was in the habit of drinking and beating the wife
mercilessly when he was in an intoxicated state. The wife has stated
that when the husband was under the influence of liquor, he used to
abuse her in a very filthy language. The wife has clearly pleaded and
has also stated in her evidence that the husband used to always demand
money from her parents. Though these categorical statements find place
in the pleadings and also the evidence of the wife, it is surprising that
there is no suggestion to the wife in respect of the said evidence in her
cross-examination. There was no suggestion from the side of the
husband to the wife that she was not beaten up or that he never drinks
or that he had not abused her or that he had never demanded any
money from her parents. In the absence of any cross-examination on the
material facts on the basis of which the wife has sought a decree of
divorce on the ground of cruelty, it was necessary for the Family Court
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to hold that the evidence of the wife in this regard had gone
unchallenged. The Family Court however failed to consider this aspect
of the matter before holding that all was well between the husband and
the wife. For holding that all was well, the Family Court has mainly
relied on certain admissions of the wife in her cross-examination that
she used to accompany the husband to the market to buy household
articles and she had visited the house of her relatives and his friends
for functions or for meals. It is not necessary that a wife who is beaten
up by her husband when he is in an intoxicated state would refuse to
join his company when they are invited together for functions or for
dinner. In fact, till the marriage subsists, the parties always try to make
a show of their good relationship before the public. Normally, till the
marriage subsists, a spouse, mainly a wife who is ill-treated by her
husband joins the company of her husband when they are called for
family functions or lunch or dinner in the houses of their near relatives
or friends. Merely because a wife joins the company of her husband to
the functions in the houses of near relatives, it cannot be said that the
wife had joined the company of her husband as she was treated well by
him. Till the marriage subsists, in our view, several women would join
the company of their husband merely with a view to create an
impression that all is well between the couple, though they may be
treated with cruelty by the husband on several occasions. The wife may
also do so with a view to consider whether the husband could mend his
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ways. However, the Family Court ignored the unchallenged evidence of
the wife only by referring to her admission in her cross-examination
that she used to sometimes join the company of her husband for
purchasing the household articles and sometimes join him to the houses
of their relatives and friends for festivals and dinner. We do not find
that the Family Court was justified in recording so while discarding the
case of the wife that she was ill-treated by her husband. The Family
Court ought to have considered that the evidence of the wife had not
only gone unchallenged but was further supported by the evidence of
the husband in his cross-examination. Even according to the husband,
he was earing a sum of Rs.15,000/- per month towards the salary at the
time of tendering of the evidence. The husband had suggested and had
also pleaded that the father of the wife had received a sum of Rs.30
lakhs at the time of his retirement. The father of the wife had a two
storeyed house and the husband has admitted in his cross-examination
that he had requested the father of the wife to make him a "Ghar
Jamai" so that he can reside on the First Floor of the house owned by
the father of the wife. Normally, a husband would not ask the wife or
her parents that he would become "Ghar Jamai" in their house
immediately after the marriage, unless he is desirous of seeking some
benefits or favours from the parents of the wife. The husband has
admitted that he had visited the house of the parents of the wife in the
short span of time, on nearly 50 - 60 occasions for lunch and dinner.
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Though the husband had denied that a sum of Rs. 80,000/- was
financed by the father of the wife to him and he had assured to repay
the amount in small installments of Rs.2,000/- per month, the Family
Court has come to a conclusion and rightly so, that the wife has proved
her case in that regard. The Family Court has observed on the basis of
the receipts placed by the wife on record that the husband had indeed
accepted a Sum of Rs.80,000/- from the father of the wife. There is,
however nothing on record to show that he had repaid Rs.2,000/- per
month to the father of the wife till he was alive and thereafter to the
brother of the wife. The findings recorded by the Family Court in this
regard clearly show that the husband was demanding money from the
parents of the wife and was successful in securing sum of Rs.80,000/-. It
appears that the wife had left the matrimonial home on a number of
occasions as could be gathered from the evidence of the wife and her
brother and the wife used to return to the matrimonial home only after
the husband apologized for his mistakes. On a reading of the evidence
on record, it is apparent that the husband had treated the wife with
cruelty. The evidence of the wife and her brother has clearly
substantiated the case of the wife. The case of the wife is further
substantiated by the admission of the husband in his cross-examination
and also the documents in the form of receipts. The Family Court
however did not consider the evidence of the parties in the right
perspective and wrongly held that the wife had failed to prove that the
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husband had treated her with cruelty by mainly relying on her
admission that she used to accompany the husband on some occasions
for purchasing household articles and also used to attend the functions
in the house of his friends and her relatives. We have already observed
hereinabove that these admissions could not have falsified the case of
the wife that the husband had treated her with cruelty by beating her
under the influence of liquor, by abusing her in filthy language and by
demanding money from her parents. On an appreciation of the evidence
on record, it appears that the husband had treated the wife with cruelty
and the wife is entitled to a decree of divorce. While parting with the
Judgment, we are inclined to direct the husband to pay a sum of
Rs.3,000/- per month to the wife towards maintenance as prayed on
behalf of the wife. The prayer made on behalf of the wife that the
husband should pay a sum of Rs.3,000/- per month is extremely just
and reasonable. The husband is a physically challenged person, working
on a petty post in the defence services and has to look after his old
parents. In the circumstances of the case, we therefore, direct the
husband to regularly pay the sum of Rs.3,000/- per month to the wife
towards maintenance.
In the result, the Family Court Appeal is allowed. The
Judgment of the Family Court is set aside. The marriage solemnized
between the parties on 13/03/2009 is hereby dissolved by a decree of
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divorce on the ground of cruelty. The husband is directed to pay a sum
of Rs.3,000/- per month to the wife towards maintenance. No costs.
JUDGE JUDGE
Choulwar
