Bombay High Court
Bhushan Jageshwar Sakhare vs Smt. Vandana W/O Bhushan Sakhare on 6 March, 2017
Bench: V.A. Naik
fca49.15.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FAMILY COURT APPEAL NO.49/2015
WITH
FAMILY COURT APPEAL NO.16/2016
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FAMILY COURT APPEAL NO.49/2015
APPELLANT: Bhushan Jageshwar Sakhare,
aged about 33 years, Occupation : Service,
resident of 184, Balaji Nagar (Extn),
Manewada Road, Nagpur.
...VERSUS...
RESPONDENT : Smt. Vandana w/o Bhushan Sakhare,
aged about 29 years, occupation : service, resident
of Kalka Para, Ward no.8, Dongargarh,
District Rajnandgaon, Chattisgarh.
Also
Mecon Limited, P.O. Doranda, Ranchi - 834002,
Jharkhand.
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Shri P.A. Abhayankar, Advocate for appellant
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WITH
FAMILY COURT APPEAL NO.16/2016
APPELLANT: Bhushan Jageshwar Sakhare,
aged about 33 years, Occupation : Service,
resident of 184, Balaji Nagar (Extn),
Manewada Road, Nagpur.
...VERSUS...
::: Uploaded on - 15/03/2017 ::: Downloaded on - 27/08/2017 19:00:50 :::
fca49.15.odt
2
RESPONDENT : Smt. Vandana w/o Bhushan Sakhare,
aged about 29 years, occupation : service, resident
of Kalka Para, Ward no.8, Dongargarh,
District Rajnandgaon, Chattisgarh.
Also
Mecon Limited, P.O. Doranda, Ranchi - 834002,
Jharkhand.
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Shri P.A. Abhayankar, Advocate for appellant
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CORAM : SMT. VASANTI A NAIK, AND
V.M. DESHPANDE, JJ.
DATE : 06.03.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
Since the parties to these family court appeals are the same
and the facts involved in the same are also the same, they are heard
together and are decided by this common judgment.
2. Family Court Appeal No.16/2016 is filed by the appellant-
husband against the judgment passed by the Family Court dismissing a
petition filed by the appellant-husband for a decree of divorce on the
ground of cruelty. Family Court Appeal No.49/2015 is filed by the
husband against the judgment passed by the Family Court in a petition
filed by the husband for a decree of divorce on the ground of desertion.
fca49.15.odt
3. Few facts giving rise to the family court appeals are stated
thus :-
The appellant-husband and the respondent - wife were
married at Dongargarh on 26.5.2010. The appellant-husband was serving
at Bangalore at the time of the marriage as a Software Engineer in a
reputed company. The respondent-wife was serving at Ranchi at the time
of her marriage as a Design Engineer. It is the case of the appellant -
husband that before the marriage, it was decided between the parties that
after the marriage, the wife would get herself transferred to Bangalore
and reside with him in the matrimonial home. It is pleaded by the
husband in the petition filed by him in the year 2012 for a decree of
divorce on the ground of cruelty that the wife did not quit her job in
Ranchi and did not secure a job at Bangalore, with a view to reside with
the husband. It is pleaded in the petition filed by the husband in the year
2012 that when he was to go from Bangalore to Nagpur on 4.11.2010 for
Diwali festival and when he informed the said fact to the wife, the wife
was reluctant to join his company at Nagpur on the ground that she did
not have a reserved ticket for travelling to Nagpur. It is pleaded by the
husband in the petition that he arranged an e-ticket for the wife and she
then came to Nagpur. It is pleaded that the husband and the wife went to
the house of the parents of the wife at Dongargarh and again stayed
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together at Nagpur for about a week. It is pleaded that the wife did not
have any love and affection for the husband and his family members. It is
pleaded that the wife did not perform her matrimonial duties, woke-up
late in the morning and deliberately and intentionally disobeyed the
orders of the husband and his parents. It is pleaded that though the
husband gave all the comforts to the wife, she was not happy. It is
pleaded that when the wife had monthly periods on 10.11.2010 and
when the husband was not able to sleep in the bedroom because of the
extreme hot weather and the noise due to the marriage programme in the
neighbourhood, the wife became violent, lost her mental balance and
broke her Mangalsutra. It is pleaded that the wife threw the Mangalsutra
on the husband, packed her bags, called her cousin brother, named, Pintu
to drop her to the railway station so that she could go back to
Dongargarh. It is pleaded that after the husband and his parents
persuaded the wife, she locked herself in the bedroom, did not come out
of the same and even the food was served to her in the bedroom till her
mother and her other relatives came from Dongargarh to pick her up. It is
pleaded that the wife was arrogant and hot tempered and was very proud
that she was educated and had a good job. It is pleaded that on 7.11.2011
the sister of the wife had sent a false SMS on the mobile phone of the
husband that the wife had committed suicide and the husband's family
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had killed her. It is pleaded that the husband had suffered a mental shock
because of the conduct on the part of the sister of the wife of sending the
frightening SMS. It is pleaded by the husband that the parties went to
Kerala in the month of December, 2010 and after staying with the
husband for a few days at Bangalore the wife went back on 8.1.2011,
never to return to the matrimonial home or the house of the parents of
the husband at Nagpur. It is pleaded that the parties had filed a petition
for consent divorce in the Family Court in the District at Chhattisgarh on
17.8.2011 but the wife surreptitiously withdrew the said petition without
informing the husband. It is pleaded that on 25.12.2011, the wife and her
relatives tried to enter the house of the parents of the husband at Nagpur
on 25.12.2011 and on witnessing the behaviour of the wife and her
relatives, the husband was scared that they would cause harm to his and
his parents' life and limb. It is pleaded that the parties resided separately
for about a year and the wife did not have any intention to reside with the
husband.
4. The wife did not file a written statement in the proceedings
filed by the husband in the year 2012 for a decree of divorce on the
ground of cruelty. The matter proceeded ex parte and the Family Court on
an appreciation of the evidence on record by the judgment, dated
18.1.2014 dismissed the petition filed by the husband for a decree of
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divorce. The Family Court held that the husband had failed to prove that
the wife had treated him with cruelty. The Family Court framed the issue
whether the wife had deserted the husband and held that a decree of
divorce could not be granted on the ground of desertion as the parties
were not living separately from each other for a period of two years
before the date of filing of the petition. The Family Court answered the
issue of desertion against the husband on the technical ground that the
parties were not separated for a period of two years before filing of the
petition by the husband. The husband has challenged the judgment of the
Family Court dated 18.1.2014 in Family Court Appeal No.16/2016.
5. Since the Family Court had held in the judgment dated
18.1.2014 that the parties had not separated for a period of two years
before the date of filing of the petition, the husband filed a petition for a
decree of divorce on the ground of desertion on 24.3.2014 after ensuring
that the separation period was more than two years at the time of filing of
the petition, bearing Petition No.A.299 of 2014. The second proceedings
filed by the husband also proceeded ex parte against the wife. The wife
did not defend the matter despite service. The Family Court, by the
judgment, dated 10.4.2015 dismissed the petition filed by the husband on
the ground of desertion by applying the principles of res judicata, though
a specific reference is not made to the same, in the judgment. The Family
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Court observed that by the previous petition filed by the husband in the
year 2012, a decree of divorce on the ground of cruelty as well as
desertion was sought and since the Family Court had held that the wife
had not deserted the husband, the husband could not have filed the
second petition for a decree of divorce on the ground of desertion. The
Family Court observed that since the second petition for desertion was
not based on new facts, it was necessary to dismiss the petition filed by
the husband for a decree of divorce on the ground of desertion.
Consequently, by the judgment dated 10.4.2015, the petition filed by the
husband for a decree of divorce on the ground of desertion was also
dismissed. The judgment of the Family Court dated 10.4.2015 is
challenged by the appellant in Family Court Appeal No.49/2015.
6. Shri Abhyankar, the learned Counsel for the appellant -
husband submitted that the Family Court could have granted a decree of
divorce on the ground of cruelty in the matter filed by the husband in the
year 2012. It is submitted that though the wife had agreed to reside with
the husband at Bangalore as per the understanding between the parties
before the solemnization of the marriage, the wife did not seek a job in
Bangalore and never resided with the husband in the matrimonial home.
It is submitted that in the first Diwali also the wife was not ready to come
to Nagpur to the house of her in-laws on the ground that she did not have
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a reserved ticket and only when an e-ticket was sent to her, she came to
Nagpur for Diwali. It is stated that during her stay at Nagpur in Diwali,
the wife did not perform her matrimonial duties and behaved very
arrogantly with the appellant's parents. It is submitted that the wife used
to wake up very late in the morning and did not perform her household
duties. It is submitted that when during the stay of the parties at Nagpur
the wife had her monthly periods and the husband had to sleep in the hall
of the house at Nagpur in view of the noise due to the marriage in the
neighbourhood and as she was feeling very hot, the wife got very furious,
created a scene, broke her Mangalsutra and threw it on the husband. It is
submitted that the wife had packed her bags to leave for Dongargarh and
when the parents of the husband asked her not to do so, she did not come
out of the bedroom for the next few days till her mother and the other
relatives came to pick her up and even the food was served to her inside
the bedroom. It is submitted that the said acts on the part of the wife
caused great mental cruelty to the husband. It is submitted that the sister
of the wife had sent a shocking SMS in regard to the suicide by the wife
and the said act on the part of the sister of the wife caused great mental
agony to the husband. It is submitted that the wife was not ready to
reside in the matrimonial home and had hardly resided with the husband
for less than a month from the date of the marriage on 26.5.2010 till the
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parties separated on 8.1.2011. It is submitted that the act on the part of
the wife in not joining the company of the husband at Bangalore by
securing a job at Bangalore, as decided, has caused mental cruelty to the
husband.
7. It is submitted that in the first petition filed by the husband,
the husband had not sought a decree of divorce on the ground of
desertion. It is stated that the Family Court picked up some stray
statements from paragraph 14 of the said petition to frame an issue of
desertion though two years had not lapsed from the separation of the
parties till the filing of the petition, and held that the husband was not
entitled to a decree of divorce on the ground of desertion. It is submitted
that in the first petition filed by the husband, the issue of desertion
though wrongfully framed, was decided against the husband solely on the
technical ground that the husband had not filed the petition for divorce
on the ground of desertion, after waiting for a period of two years from
the date of the separation of the parties. It is submitted that even
assuming that in the first petition the husband had sought a decree of
divorce on the ground of desertion, still the finding of the Family Court in
the first judgment dated 18.1.2014 that the husband was not entitled to a
decree of divorce on the ground of desertion would not operate as res
judicata as the said issue was decided against the husband only on a
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technical ground that the petition was not filed after waiting for a period
of two years from the date of separation. It is submitted that if the first
petition filed by the husband was rejected by the Family Court by framing
the issue of desertion and deciding the same against the husband solely
on the technical ground, the second petition filed by the husband for a
decree of divorce on the ground of desertion could not have been said to
be barred by the principles of res judicata. It is submitted that it is
apparent from the conduct of the wife that she was not ready to reside
with the husband in the matrimonial home and that the wife did not have
any reasonable excuse for staying away from the husband after 8.1.2011.
It is submitted that in the absence of any written statement filed by the
wife, there is nothing on record to show that the wife had a reasonable
excuse to stay away from the husband after 8.1.2011.
8. It appears that though the notice was served on the wife in
Family Court Appeal No.16/2016 in the matter of condonation of delay in
filing the appeal, the wife did not appear and was not represented. The
delay was condoned and the family court appeal was admitted. After the
admission of the appeal, a notice was sought to be served on the
respondent-wife, however, the notice could not be served as the
respondent - wife was not present in the office at the time of service of
the notice and the colleagues of the respondent - wife in her office refused
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to accept the notice. The notice was then sought to be served on the
respondent - wife by speed post and registered post. Since it appeared
that the wife was trying to evade the service, the husband was permitted
to serve the wife by paper publication. The husband has served the wife
by paper publication after securing due permission of this Court. In
Family Court Appeal No.49/2015, the respondent - wife refused to accept
the notice and hence, it was observed that the notice was deemed to have
been served on the respondent - wife. None appears for the respondent-
wife in both the appeals, despite service of notice.
9. On hearing the learned Counsel for the appellant - husband
and on a perusal of the record and proceedings, it appears that the
following points arise for determination in these family court appeals :-
(i) Whether the appellant-husband proves
that the wife had treated him with cruelty ?
(ii) Whether the appellant-husband proves
that the wife had deserted him without any just and
reasonable excuse ?
(iii) Whether the appellant-husband is
entitled to a decree of divorce ?
(iv) What order ?
10. To answer the aforesaid points, it would be necessary to
consider the pleadings of the appellant - husband and the evidence
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tendered by him. The wife has not filed the written statement in both the
proceedings and has not defended the petitions filed by the husband. In
the first petition filed by the husband in the year 2012, the husband has
clearly pleaded that it was agreed between the parties before the
solemnization of the marriage that the wife would get herself transferred
to Bangalore and would secure a job at Bangalore after the solemnization
of the marriage as the husband was posted at Bangalore at the relevant
time. The husband has pleaded in the first petition that the wife was not
behaving properly with the husband or his family members and did not
intend to cohabit with the husband. It was pleaded that the wife was very
proud as she was highly educated and had a good job at Ranchi. It is
pleaded that during the first Diwali the wife had declined to come to
Nagpur in the house of her in-laws only because she did not have a
reservation. It is pleaded that the wife came to Nagpur to reside with the
husband for about seven days during the first Diwali and during her stay
at Nagpur she behaved very rudely with the husband and his family
members. It is pleaded that the wife used to wake up late in the morning,
did not do her household duties and always disobeyed the orders of her
in-laws without any rhyme or reason. It is pleaded that when the wife had
her monthly periods and the husband had slept in the hall of the house of
his parents at Nagpur, in view of the hot weather and there was a lot of
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noise near the bedroom of the parties due to the marriage in the
neighbourhood, the wife created a scene. The husband has pleaded that
the wife got extremely furious, shouted on the husband, broke her
Mangalsutra, threw it on the husband and packed her bags so as to go to
Dongargarh. It is stated that though the wife was asked to stay at Nagpur
by the parents of the husband, the wife locked herself in the bedroom and
even food was served to her in the bedroom. It is stated that such acts on
the part of the wife in the early days of the marriage caused great mental
agony to the husband. It is pleaded that the wife's sister had sent a false
SMS that the wife had committed suicide and the husband and his family
members were responsible for her death. It is pleaded that even after the
separation, the wife and her family members had come to the house of
the husband at Nagpur to create a scene in the year 2011 and the
husband and his family members got extremely scared that the relatives
of the wife would cause danger to the life and limb of the husband and
his family members. It is pleaded by the husband that the wife did not
mend her ways and behaved rudely with the husband when she resided at
Bangalore in the month of December, 2010. It is pleaded in the first
petition that the parties had separated for about a year and the wife did
not intend to cohabit with the husband. In the absence of any written
statement by the wife, it would have to be held that the facts pleaded by
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the husband are deemed to have been admitted. The husband has filed
the evidence on affidavit. The husband was however not cross-examined
on behalf of the wife as the matter proceeded ex parte against the wife.
The husband examined his mother in support of his case that the wife had
treated him with cruelty. Needless to say that the mother of the husband
was also not cross-examined on behalf of the wife. It would be necessary
to hold in the circumstances of the case that the wife had treated the
husband with cruelty. The case of the husband that there was an
agreement between the parties before the marriage that the wife would
quit her job at Ranchi, which is at a great distance from Bangalore and
secure a job at Bangalore so that she could cohabit with the husband has
gone unchallenged. The husband has led evidence on this aspect and
there is no cross-examination. The pleadings of the husband in this regard
have gone unchallenged in the absence of the written statement. Though
the husband has categorically pleaded that the wife had agreed to leave
her job at Ranchi and secure a job at Bangalore and reside with the
husband, the wife has not disputed the same. It is quite possible in the
facts of the case that the parties had decided even before the marriage
that the wife would transfer her job to Bangalore with a view to reside
with him at Bangalore. If one of the parties is serving at Ranchi and the
other party is serving at Bangalore, it is possible to believe that the parties
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would agree before the marriage that one of the parties would quit the
job and start residing with the other party. In the instant case when the
wife is also an Engineer and is in a position to secure a job in Bangalore
after giving up her job at Ranchi, the wife ought to have made at least
some attempts to secure a job at Bangalore. The wife however did not
quit her job at Ranchi or get her job transferred to Bangalore. It is not
possible for the parties to cohabit if one of the parties is serving at a place
which is at a great distance from the place where the other spouse is
residing. In the instant case, when the parties were serving at distant
places, it is quite natural that one of the parties would transfer the job
and start residing with the other party. If the wife would not quit her job,
would not get her job transferred to Bangalore then it was not possible for
the parties to cohabit with each other. During the period of about two
years from the date of solemnization of the marriage till the date of filing
of the first petition by the husband, the parties had hardly resided
together for a month or two in all and that too in intervals. This clearly
shows that there was no cohabitation between the parties for long, after
the marriage was solemnized. During the period of stay of the wife at
Bangalore and at Nagpur, it appears that the wife did not behave properly
with the husband and his family members. The Family Court was not
justified in holding that it was difficult to accept the husband's case in
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respect of breaking of the Mangalsutra by the wife and creating a scene
after the husband slept in the hall of the house as no reason is stated by
the husband for the wife to act in such a manner. The Family Court has
erroneously held that no prudent person would act in such a manner
unless there is a quarrel or dispute between the parties. The Family Court
wrongly held that merely because the wife was highly educated it was
difficult to accept the case of the husband that the wife created a scene
after he slept in the hall of the house at Nagpur. The Family Court also
committed a mistake in holding that an isolated incident would not
tantamount to cruelty. The reasons recorded by the Family Court for
disbelieving the case of the husband do not appear to be correct. The
husband had clearly stated that because the husband slept in the hall of
the house, the wife got violent and she broke her Mangalsutra, threw it
on his person and packed her bags. The husband had clearly pleaded and
also stated in his evidence that the wife had remained in the bedroom and
was even served food in the bedroom during the next few days. The
evidence of the husband is supported by the evidence of his mother. The
Family Court however did not accept the unchallenged evidence of the
husband and his mother by observing that a prudent person would not act
in such a manner. Surely the husband's case was that the wife was not
prudent and that did not behave like a normal wife. The husband had
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categorically pleaded and stated in his evidence that the wife did not
perform her matrimonial duties and also behaved very rudely with his
parents. It cannot be said that an incident like the incident of breaking
Mangalsutra, getting violent and packing the bags would not be an
incident that could result in holding that the wife had treated the
husband with cruelty. The Family Court erroneously held that a highly
educated working woman would not act in such a manner. There was no
reason for the Family Court to hold so when the wife had not disputed the
facts pleaded by the husband and the evidence of the husband and his
mother had gone unchallenged in the absence of any cross-examination.
The incident, dated 10.11.2010 would surely tantamount to cruelty, if it
is considered along with the behaviour of the wife on the said day and the
next few days. The wife became violent on 10.11.2010, lost her mental
balance, broke her Mangalsutra and threw it on the husband, packed her
bags and had called her cousin brother immediately so that she could be
dropped to the railway station to go to her parents' house. A girl who is
married just a couple of months before the said incident would not
behave in such a manner with the husband with whom she is meeting
after a 'long', time, specially when she has attended the house of her in-
laws for the first Diwali. The said incident, coupled with the arrogant and
rude behaviour of the wife and the refusal on the part of the wife to abide
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by the agreement between the parties before the solemnization of the
marriage that the wife would secure a job at Bangalore and start residing
with him at Bangalore and failing to do so would tantamount to cruelty.
The Family Court erroneously held that the allegations levelled by the
husband were of a general nature. The case of the husband that the sister
of the wife had sent a false and damaging SMS to him that the wife had
committed suicide and that the husband and his family members had
killed the wife, had caused mental agony to the husband is believable. It
further appears that the wife did not desire to cohabit with the husband
and the parties had filed a petition for seeking a divorce by mutual
consent in the Court at Chhattisgarh. The wife had however
surreptitiously withdrawn the said proceedings behind the back of the
husband. The very filing of the proceedings in the Court at Chhattisgarh
clearly shows that the parties had arrived at a decision that it was not
possible for them to reside together in the matrimonial home and the
marital ties were liable to be severed.
11. In the first petition filed by the husband, the husband had
clearly mentioned in the cause title that the husband had filed the same
for a decree of divorce on the ground of cruelty under Section 13 (1) (i-a)
of the Hindu Marriage Act. The Family Court however by referring to
some pleadings in paragraph 14 of the first petition erroneously framed
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an issue whether the wife had deserted the husband continuously for a
period of more than two years without reasonable excuse and decided the
same against the husband on a technical ground that two years had not
lapsed from the date of the separation of the parties till the date of filing
of the petition. In our view, the Family Court need not have framed the
issue of desertion and even if it was framed and decided against the
husband only on a technical ground, in the second petition filed by the
husband for a decree of divorce on the ground of desertion after the lapse
of more than two years from the date of separation, the Family Court
could not have dismissed the second petition by the judgment dated
10.4.2015 solely by applying the principles of res judicata. When the issue
in regard to desertion was answered against the husband only on
technical ground and not on merits, the second petition filed by the
husband could not have been barred by the principles of res judicata.
When a husband or wife files a petition for a decree of divorce on the
ground of desertion before the period of two years is completed and the
said petition is dismissed by the Family Court solely on the technical
ground, the second petition filed by the wife or the husband for a decree
of divorce on the ground of desertion after the statutory period of two
years of separation expires, cannot be dismissed by applying the
principles of res judicata. It would be necessary for the Court to consider
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in the second petition whether the husband or the wife, as the case may
be, has deserted the spouse that had filed the petition for a decree of
divorce on the ground of desertion. In the instant case, when the first
petition for desertion was rejected only on technical ground and a second
petition was filed by the husband after the separation period of two years,
the Family Court could not have dismissed the second petition by holding
that no new facts had emerged after the first petition filed by the husband
was dismissed and the second petition was filed by him. The aforesaid
observation of the Family Court is clearly illegal and cannot be upheld. In
the instant case, we find that the wife has left the company of the
husband without any just or reasonable excuse. There is a separation for a
period of more than two years at the time of filing of the petition by the
husband. The wife has not filed the written statement and has not
pleaded that there was a just or reasonable excuse to stay away from the
husband. It would be necessary for the spouse against whom desertion is
alleged to prove that he/she had not deserted the party who had filed the
petition and there was reasonable excuse to stay away from him/her. In
this case in the absence of the written statement, it cannot be gauged as
to why the wife was not residing with the husband after 8.1.2011. The
parties were admittedly residing separately continuously for a period of
more than two years before the filing of the second petition by the
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husband and they are residing separately for more than six years, as on
date. The wife has withdrawn the petition filed by the parties for a decree
of divorce by consent. The wife has not bothered to file a written
statement in both the petitions filed by the husband. The wife has not
bothered to attend this Court even after service of notice on her. This
clearly shows that the wife is not interested in cohabiting with the
husband. The factum of desertion as well as the factum of animus
deserendi is proved in this case. The Family Court ought to have
appreciated the said facts in the second petition filed by the husband and
ought to have granted a decree of divorce on the ground of desertion. We
find that the husband has clearly proved that he is entitled to a decree of
divorce on the ground of cruelty and desertion. In our view, the Family
Court, has not appreciated the evidence of the husband in the right
perspective while dismissing the petitions filed by him.
12. Hence, for the reasons aforesaid, the family court appeals
are allowed. The marriage solemnized between the parties on 26.5.2010
is dissolved by a decree of divorce on the ground of cruelty and desertion.
In the circumstances of the case, there would be no order as
to costs.
JUDGE JUDGE
Wadkar
