Bombay High Court
Kanta Tejas Maun vs Dr. Tejas Knubhai Maun on 16 March, 2017
Bench: A.S. Oka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.95 OF 2009
WITH
CIVIL APPLICATION NO.135 OF 2010
WITH
CIVIL APPLICATION NO.136 OF 2010
IN
FAMILY COURT APPEAL NO.95 OF 2009
Wife ...Appellant/Applicant
Versus
Husband ...Respondent
WITH
FAMILY COURT APPEAL NO.149 OF 2009
WITH
CIVIL APPLICATION NO.201 OF 2009
WITH
CIVIL APPLICATION NO.200 OF 2009
IN
FAMILY COURT APPEAL NO.149 OF 2009
Husband ...Appellant/Applicant
Versus
wife ...Respondent
.....
Mr. Y.E. Mooman with Ms Manisha Gawade for the Appellant
in FCA/95/2009 and for the Applicant in CAM/135/2010,
CAM/136/2010 and for the Respondent in FCA/149/2009,
CAM/201/2009 and CAM/200/2009.
Mr. R.T. Lalwani with Mr. Prakash Mahadik for the
Respondent in FCA/95/2009, CAM/135/2010,
CAM/136/2010, for the Appellant in FCA/149/2009 and for
the Applicant in CAM/201/2009 and CAM/200/2009.
CORAM : A.S. OKA &
SMT. ANUJA PRABHUDESSAI, JJ.
DATED: 15th and 16th MARCH, 2017.
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ORAL JUDGMENT : (PER A.S.OKA,J.)
These two Appeals can be disposed of by a common
judgment as the challenge in these Appeals is to the same judgment
and decree.
2 Considering the nature of the dispute, we direct that the
names of the parties shall be masked in this judgment. We are
referring to the parties for the sake of convenience as the husband and
the wife. We are also directing that while reproducing the portions of
the pleadings and/or evidence in this judgment, the names appearing
therein shall be masked.
3 The marriage between the parties was solemnised on 19 th May,
1994. The husband initially filed a Petition claiming a decree of
divorce on the ground of cruelty under clause i (a) of Sub-Section (1)
of section 13 of the Hindu Marriage Act, 1955 (for short 'the said Act').
During the pendency of the Petition, by way of amendment, the ground
of desertion was added by invoking clause i(b) of Sub-Section of 13 of
the said Act. Apart from seeking a decree of divorce, a decree of
permanent injunction was claimed by the husband enjoining the wife
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to remove herself from Flat No. A 403, Padmavati, 3rd Cross Lane,
Swami Samarth Nagar, Andheri, Mumbai- 400 004 (described in the
Petition as ' the suit premises'). The third and the last prayer is for
substantive relief of injunction restraining the wife from harassing the
husband in any manner whatsoever. The written statement and the
additional written statement were filed by the wife. On the basis of the
pleadings of the parties, the learned Judge of the Family Court framed
the issues and additional issues, which read thus:-
Sr. No. Issues Findings
1 Does the petitioner prove that the
respondent has, after solemnization
of the marriage, treated the
petitioner with cruelty? In the affirmative
2 Does the petitioner prove that the
respondent deserted him two years
preceding the amendment of the
petition on 7.6.2006? In the affirmative
3 Is the petitioner entitled to a decree
of divorce on the ground of cruelty
u/s 13(1)(ia) and 13 (1) (ib) of the
Hindu Marriage Act? In the affirmative
3a Is the petitioner entitled to a
permanent injunction as prayed by
him in prayer clauses (b) & (c) of
the petitioner. As per final order
4 Is the respondent entitled to
permanent alimony? If yes, what In the affirmative @
amount? Rs.3,000/- p.m.
5 What order? As per final order
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Additional Issues Findings
1. Is the petition valued appropriately? In the affirmative
2. If not, what would be the proper valuation
of the petition? Accordingly what would be
additional Court fees to be affixed by the
petitioner? Does not survive.
4 In the light of the findings recorded by the learned Judge of
the Family Court on the issues, the Petition filed by the husband was
partly allowed by the impugned judgment and decree dated 31 st
March, 2009. The marriage between the parties was ordered to be
dissolved both on the grounds of cruelty and desertion. The wife was
restrained by an order of permanent injunction from harassing the
husband in any manner whatsoever. In addition, the learned Judge of
the Family Court passed a decree directing the husband to pay
maintenance at the rate of Rs.3,000/- p.m. from the date of the decree.
5 Family Court Appeal No.149 of 2009 is preferred by the
husband. He is aggrieved by that part of the impugned decree by
which the learned Judge of the Family Court declined to grant
mandatory injunction in terms of prayer clause (b) in relation to the
suit premises. The Husband is also aggrieved by a decree directing him
to pay maintenance at the rate of of Rs.3,000/- p.m to the wife from
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the date of the decree.
6 The Family Court Appeal No.95 of 2009 is preferred by the
wife for challenging the decree passed by the Family Court of divorce
and injunction. We may note here that on instructions of the wife, the
learned counsel for the wife has stated that she is not pressing Civil
Application Nos.135 of 2010 and 136 of 2010. With the assistance of
the learned counsel representing the husband and wife, we have gone
through the pleadings and notes of arguments and other documents on
record.
7 The learned counsel appearing for the wife while assailing
the decree of divorce has taken us through the findings recorded by the
learned Judge of the Family Court. He has submitted that there are no
findings recorded at all by the learned Judge and she has proceeded to
pass a decree on the ground of cruelty only on the basis of a finding
recorded in paragraph 83 on the ground that the wife has made false
allegations against the husband about his relationship with one woman
'J'. He invited our attention to various decisions. He firstly relied upon
a decision of the Division Bench of Calcutta High Court in the case of
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Anuradha Ghosh Moulick vs. Subir Krishna Ghosh Moulick 1. He
submitted that there is a difference between a finding that a party had
failed to prove allegations made by him and a finding that allegations
made by a party are false. He invited our attention to paragraph No.23
of the said decision of the Calcutta High Court. He submitted that by
no stretch of imagination, it can be said that the husband has proved
that the allegations made by the wife are false. He submitted that in
fact, the wife has not made any independent allegations against the
husband. The case of the wife is that it is the husband who himself
informed her about his relationship with said 'J'. In fact, one of the
submissions of the learned counsel for the wife is that as the
information regarding his relationship with 'J' was given by the
husband himself, there was no question of wife making allegations of
illicit relationship between the husband and said 'J'. He also relied
upon a decision of the Apex Court in the case of G.V.N. Kameswara
Rao Vs. G. Jabilli2. He also invited our attention to another decision
of the Apex court in the case of Ramchander Vs Ananta3. He relied
upon the observations made by the Apex Court in paragraph No.15
onwards. He submitted that even assuming that in the present case,
1 in F.A. No.270 of 2001 decided on 18th February, 2008
2 Appeal (Civil) No.140 of 2002 decided on 10.1.2002
3 2015(3) ALL MR 493 (S.C.)
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the wife has failed to prove her allegations as regards the relationship
of her husband with 'J', the mere failure to prove the allegations would
not entitle the husband to a decree of divorce. He has also pointed out
that after the Appeal preferred by the wife was dismissed on technical
grounds, within two days, the husband has admittedly performed a
second marriage. He has submitted that the wife has no source to
know whether he has married to the same woman. But in any event,
appropriate inference will have to be drawn on the basis of the conduct
of the husband of marrying within two days from the date on which
the appeal preferred by the wife was dismissed on technical grounds,
which was restored later on. He has submitted that the decree of
divorce on the ground of desertion could not have been passed in view
of the fact that admittedly the period of two years of desertion was not
completed on the date of presentation of the petition for divorce. He
submitted that the decree of injunction restraining the wife from
harassing the husband could not have been passed by the Family Court.
8 The learned counsel appearing for the husband pointed out
that apart from case made out by the wife that it was the husband who
allegedly informed her about his relationship with another woman,
there are specific allegations of scandalous nature made by the wife in
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her additional written statement. He invited our attention to certain
admissions given by the wife in her cross examination which prove that
allegations made by the wife regarding character of the husband were
established to be false. He placed reliance on various decisions of the
Apex Court and this Court in support of his contention that
unsubstantiated allegations made by the wife about the character of
the husband amount to causing mental cruelty to the husband. He has
submitted that unsubstantiated allegations about the character is not
the only ground. He urged that evidence on record shows the
consistent conduct of the wife, which amounts to cruelty and even the
said evidence has been considered by the learned Judge of the Family
Court. As far as the ground of desertion is concerned, he relied upon
the decision of the learned Single Judge of this Court in the case of
Suren Chandrakant Shah vs. Rita Suren Shah 4. He urged that the
ground of desertion will be available from the date on which the
amendment for incorporating the said ground was allowed by the
learned Judge of the Family Court. He also relied upon the
observations made by a Division Bench of this Court in the case of Mrs.
Manisha Sandeep Gade Vs. Sandeep Vinayak Gade5 in support of his
contention. As regards the decree of maintenance, he pointed out the
4 First Appeal No.260 of 1983, 1985 ALL India Hindu Law Reporter 690.
5 AIR 2005 Bom 180
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admitted position on record regarding her high educational
qualifications. He also pointed out from the cross examination of the
wife that the wife was in the employment. He submitted that
admittedly, the wife holds a Degree of Mumbai University and Master's
degree in Economics and Post Graduate Diploma in business
administration. He has submitted that in subsequent proceedings, it is
brought on record that the wife has been employed as a lecturer. As
regards the prayer for decree of mandatory injunction directing the
wife to remove herself from the suit premises, he pointed out various
acts of cruelty on the part of the wife. He submitted that there is
evidence on record to show that other premises are available to the
wife. He has submitted that even going by the case of the wife, the
husband has ½ share in the suit premises. He has submitted that as
regards the decree of injunction, which is already granted, the same
has been continuously operating during the pendency of Appeals. He
has submitted that this Court not only declined to grant stay to that
part of the decree, but warned the wife that if she fails to abide by the
said decree, the consequences would follow.
9 We have given careful consideration to the submissions.
The first issue which arises for consideration is whether the decree
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passed by the Family Court on the ground of desertion can be
sustained. The finding recorded by the learned Judge of the Family
Court on this aspect is in paragraphs 84 and 85 of the impugned
judgment. In fact a submission has been recorded in paragraph No.84
by the learned Judge of the Family Court which was canvassed by the
husband that when the Petition for divorce was filed by the husband,
the ground of desertion was not incorporated as on the date of filing of
the Petition, the statutory separation for a period of two years was not
completed. The submission of the husband specifically recorded is
that the desertion started from the year 2002. We may note here that
the Petition for divorce was filed by the husband in the Family Court on
17th September, 2003. The learned Judge observed that there are
several judgments of this Court under which this Court has allowed
amendment applications and allowed addition of the ground of
desertion to avoid multiplicity of proceedings. The learned counsel
appearing for the husband has relied upon the decision of the learned
Single Judge in the case of Suren Chandrakant Shah vs. Rita Suren
Shah (supra). This was a case where admittedly, on the date of
presentation of Petition for divorce, the prayer for grant of decree of
divorce on the ground of desertion was not maintainable as the
statutory period of desertion of two years immediately preceding the
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presentation of the Petition was not completed. In the Petition filed in
the year 1977, amendment was sought in the year 1980 alleging that
till the date of seeking amendment, the wife has not resumed
cohabitation. The decree of divorce passed by the City Civil Judge was
assailed before the learned Single Judge. A submission was sought to
be made by the learned counsel for the Respondent wife that the Trial
Court ought not to have granted amendment. While dealing with the
aspect of amendment, the learned Single Judge held thus:-
"I am not impressed by the submission advanced
on behalf of the respondent, because it is not in
dispute that the parties never cohabited after
September 12, 1976. In case the learned Judge
had not granted the amendment, that would have
led the petitioner to file another petition and
grant of amendment avoided multiplicity of
proceedings. Merely because the amendment was
granted during pendency of the petition it does
not relate back to the date of filing of the petition,
but the ground would become available to the
petitioner only from the date of grant of the
amendment. It is always open for the opposite
party to establish that inspite of availability of the
ground, the court may not pass the decree
because of certain circumstances transpired
during the interregnum, that is from the date of
filing the petition and grant of amendment. In
my judgment, it is therefore necessary to examine
whether the petitioner has established the ground
of desertion for seeking the relief of divorce."
10 Thus, the learned Single Judge proceeded on the footing
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that when by way of an amendment, the ground of desertion is
added, the same would become available to the Petitioner only from
the date of grant of amendment as the same cannot relate back to the
date of the institution of the Petition. The learned Judge, therefore,
observed that it is always open to consider the said ground of desertion
which was incorporated by way of amendment.
11 We respectfully disagree with the proposition of law laid
down by the learned Single Judge for more than one reasons. We may
advert clause (ib) of Sub section 1 of section 13 of the said Act:-
"13 Divorce.
(1) Any marriage solemnised, whether before or after
the commencement of this Act, may, on a petition
presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that the
other party
(i) has, after the solemnisation of the marriage, had
voluntary sexual intercourse with any person other
than his or her spouse; or
(ia) has, after the solemnisation of the marriage,
treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous
period of not less than two years immediately
preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another
religion; or
(iii) has been incurably of unsound mind, or has been
suffering continuously or intermittently from mental
disorder of such a kind and to such an extent that the
petitioner cannot reasonably be expected to live with
the respondent."
(underline added)
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12 It is well settled that a decree of divorce under the said Act can
be passed only on the grounds which are specified in the said Act.
secondly, in view of clause (a) of Sub section (1) of Section 23 of the
said Act, it is very clear that the Court is powerless to grant a decree of
divorce unless it is satisfied that any of the statutory grounds exist.
The condition precedent for grant of a decree of divorce on the ground
of desertion is that the Respondent in the Petition must have deserted
the Petitioner for a continuous period of not less than two years
immediately preceding the presentation of the Petition. If we read
clause (i)(b) to mean that the period of two years of desertion must be
completed immediately preceding the date on which the Petition is
amended, it will amount to making a violence to the express language
used by the said Act. As stated earlier, the condition precedent for
passing a decree of divorce on the ground incorporated in clause (i)
(b), the desertion has to be continuously for a period not less than two
years immediately preceding the presentation of the Petition for
divorce. The view taken by the learned Single Judge cannot be
countenanced for the simple reason that unless the condition under
clause (ib) of sub section 1 of section 13 is satisfied, the Court is
powerless to pass a decree of divorce.
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13 At this stage, we may make reference to the decision of a Division
Bench of this Court in the case of Uttara Praveen Thool vs. Praveen
s/o Bhanudas Thool6. The Division Bench had an occasion to consider
the aforesaid decision of the learned Single Judge in the case of Suren
Chandrakant Shah. In paragraph 14 of the said decision, the Division
Bench has specifically observed that the view taken by the learned
Single Judge in paragraph 4 of the said decision in the case of Suren
Chandrakant Shah is correct.
14 Considering the opinion which we have expressed in earlier
paragraph, in a normal course, it was necessary for this Bench to make
a reference to a Larger Bench as this Bench cannot take a view which is
different from the view taken by a co-ordinate Bench in the case of
Uttara Praveen Thool vs. Praveen s/o Bhanudas Thool. However, for the
reasons which we are recording hereafter, this issue will be academic as
we have come to the conclusion that even otherwise, there is no merit
in the decree passed on the ground of desertion. That is the reason
why we are not referring the issue to a larger Bench.
15 Since, we are on the issue of decree passed on the ground of
6 2014 (2) Mh.L.J.321
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desertion, it will be necessary to make a reference to the assertions in
the petition for divorce filed by the husband. Paragraph 31-b which
was added by way of amendment reads thus:
"(31-b) The petitioner states that in addition to causing
physical and mental harassment, torture and cruelty to him,
the Respondent is also guilty of deserting the petitioner. The
petitioner states that even since the respondent left the house
March 2002, there has been no co-habitation between the
petitioner and the respondent. Though the respondent broke
open the flat and returned in September 2003, it was with an
agenda to harass the petitioner and extract money from him.
After return, the Respondent has not been staying in the
house on regular basis. She frequently disappears for days
together. Whenever she is there, she harass the Petitioner.
There is absolutely no normalcy between the Petitioner and
the Respondent. The Respondent has failed to perform any of
her duties and responsibilities. The Respondent has thus
deserted the Petitioner since March 2002. The Petitioner is
therefore entitled to dissolution of his marriage even on the
ground of desertion u/s 13(1)(ib) of the Hindu Marriage
Act,1955."
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16 Thus, a case is made out in paragraph 31-b is that the wife
returned to the suit premises in September 2003 with the object of
harassing the husband and extract money from him. We may note here
paragraph 31-b was incorporated by way of amendment. In the
petition, as originally filed, it is not the case made out by the husband
that any time after March 2002 either he called upon the wife to
resume co-habitation or that he made any efforts for ensuring that the
wife resumes co-habitation. It is not the case of the husband either in
the unamended petition or in the amended petition that though the
wife was called upon by him to resume the co-habitation, she did not
resume the cohabitation. On the contrary, the petition filed on 7 th
Separation 2003 seeks a decree of divorce on the ground of cruelty. At
this stage, we may also note that in the original petition, there is a
prayer made for passing a decree of mandatory injunction directing
the wife to remove herself from the suit premises. Thus, on the one
hand, the husband approached the Family Court with a prayer to
virtually evict the wife from the suit premises which she was claiming
to be the matrimonial home and that the said prayer was persisted with
by the husband, and on the other hand, by adding only one paragraph
which is quoted above, a decree of divorce was sought on the ground
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of desertion. Going by the assertions made in the amended petition as
well as affidavit in lieu of examination-in-chief filed by the husband, it
is crystal clear that he never expressed a desire that wife should resume
co-habitation. As stated earlier, no efforts were made by him for
calling upon the wife to resume the cohabitation. In fact, the act of the
husband of seeking eviction of the wife from the suit premises will
itself come in the way of the husband claiming a decree on the ground
of desertion in the light of clause (b) of sub-section 1 of section 23 of
the said Act.
17 At this stage, it will be also necessary to make a reference to the
findings recorded by the learned Judge of the Family Court on the issue
No.2 dealing with the ground of desertion. Paragraphs 84 and 85 of
the Judgment are the only two paragraphs which contain cryptic
findings recorded by the learned Judge of the Family Court. Paragraph
84 refers to the legal position laid down in the case of Suren
Chandrakant Shah (supra) by the learned Single Judge. Paragraph
85 is the only relevant paragraph which reads thus:
"85 It can be said that both of them were residing together
in Padmavati, but from their evidence it can be said that they
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had no relations with each other. As per the counsel for the
respondent they are not having physical relations with each
other since 2005. As per the petitioner she left his house and
went to reside in Ankita Co-operative Housing and again
when he went to Tirupati she forcibly made entry in the
house. It can be said that though they are residing together
under one roof, but they have no relations as husband and
wife. Both of them have not stated before the Court that they
have physical relations with each other. In this petition, the
order of injunction was granted in his favour and she was
restrained to harass him in any manner. In such
circumstances, it can be said that it is the respondent who
compelled him to reside separate from her though they are
residing under one and the same roof. But, it can be said that
they have no relations as husband and wife and she has
deserted him with an intention to bring the cohabitation to
an end permanently. I, therefore, answer Issue No.2 in the
affirmative." .
18 The learned Judge was influenced by the fact that both husband
and wife did not come out with a case in their evidence that they were
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having any physical relationship since 2006. There is no finding
recorded by the learned Judge of the Family court that there was any
intention on the part of the wife to desert the husband. The learned
Judge of the Family Court seems to have oversimplified the whole
matter by coming to the conclusion that though the husband and the
wife were residing under the same roof, there was no relation between
them as husband and wife and therefore, the plea of desertion was
established.
19 We have already quoted paragraph 31-b of the petition for
divorce. Even taking the contents of the said paragraph as correct, it is
not possible to accept that the act of desertion on the part of the wife
was established. Therefore, we are of the view that the findings
recorded by the learned Judge on the issue of desertion cannot be
sustained at all. As observed earlier, as we are not accepting the
correctness of the findings of the learned Judge of the Family Court on
the ground of desertion, we are not going into the correctness of the
decisions in the case of the Suren Chandrakant Shah and Uttara
Praveen Thool.
20 Now we come to the decree passed on the ground of cruelty. We
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have carefully perused the discussion made by the learned Judge of the
Family Court on the Issue No.1 which is from paragraphs 39 to 83.
Perusal of paragraphs 39 to 77 show that the learned Judge has
referred therein to the evidence and arguments canvassed across the
bar. Paragraph 78 refers to various decisions cited by the parties.
Paragraph 83 is the only paragraph which records a finding. It reads
thus:
"83 I have already held that she has made false allegations
against him about his illegal relations with "J" and having a
child and certainly it amounts to mental cruelty to him.
Hence, I answer Issue No.1 in the affirmative."
21 Thus, in substance, the Court proceeded to pass a decree of
divorce on the ground of cruelty on the ground that the allegations
made by the wife against the husband as regards character of the
husband were found to be false. As we are dealing with an Appeal
against the said decree, in the light of the submissions canvassed across
the bar, we have independently examined the entire record of the case.
It will be necessary to make a reference to the additional written
statement filed by the wife in which offending allegations are found.
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There are two parts of the offending allegations in the additional
written statement which read thus:
"....Contrary to it is submitted it is the petitioner who has been
repeatedly stating before the respondent that he has indulged
into and performed a second marriage with a lady by name
"J"..."
"....It is submitted that the petitioner and the respondent were
in need of a maid servant to help the respondent in the
household chores and the petitioner taking advantage of this
situation introduced to the respondent his girl friend "J", to be
engaged as a maid servant in the house and she was
accordingly kept in the house for the household work and the
mention of which is made in the earlier paragraphs of her
statement. As days passed by the respondent observed that
the petitioner was too friendly and intimate towards the said
maid servant. At numerous occasions there used to be quarrel
between the respondent and the petitioner, with regards to
his behaviour with the maid servant. The respondent kept
explaining to the petitioner that being a doctor of repute such
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a behaviour does not suit him and he should mend his way as
soon as possible. But to the disappointment of the
respondent, the petitioner continued with his unwarranted
behaviour, which the respondent could not tolerate. The maid
servant and the petitioner continued getting all the more
friendlier so much so that they were spotted at public places
roaming with each other. The numerous gossips of the
intimacy between the two also came to the notice of the
respondent. As time passed by things became untolerable and
therefore the respondent gave an ultimatum to the petitioner
that if his behaviour persists then some action will have to be
taken by her. She had also to remove the said maid servant
from her house. At this juncture the petitioner spoke out,
revealed and disclosed to the respondent that he knew the
maid servant viz "J" since quite a long time and that she was
not merely a maid servant in the house as was tried to be
made out by him, but for a long time they were quite
intimate with each other and that she was in reality his ex-
friend. The petitioner further disclosed that they loved each
other and that more than her it was he who loved her most
and wanted to get married to her but due to the differences in
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family he was not in a position to tie a knot with her and that
ultimately due to family pressure both of them had to
separate and go apart in their own way. He further disclosed
that the said "J" got married and was settled abroad, she has
an issue from the said marriage. But the things could not go
well between herself and her husband and that she divorced
her husband and came down to India along with her minor
son and on coming down she contacted the petitioner and
narrated to him all that he had happened with her. The
petitioner further disclosed to the respondent that he could
not hold on to his emotions he had for the said "J" and
decided to support her and her child. The petitioner has
disclosed further saying that he had married the said "J" and
that he had embraced Islam. The petitioner went further to
state that now the respondent could do no harm to him as he
had got himself converted to Muslim and has a right to
remarry. The petitioner also stated from the said wedlock
with "J" he has a baby boy was 2 years of age and was with
the said "J" who started residing in the building namely Mota
Mahal situated at Lokhandwala Complex, near to the
matrimonial home and which was provided to her by him for
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her decent living with the child and which place would be
quite convenient for the petitioner to visit. The petitioner
further disclosed that the house in question was purchased by
him for the said lady and child and in case the lady was
removed from the house as a maid servant hardly it would
matter to him as he would go and reside alongwith her in the
nearby building as and when he desired and to be nearer to
her. As time passed by one the own admissions of the
petitioner as made to the respondent often the petitioner kept
on frequently visiting his second wife and the child and the
petitioner used to not to return home for days together
without even informing the respondent about his absence
from the home..."
22 On plain reading of the aforesaid allegations, it cannot be
disputed that the allegations are of very serious nature affecting the
character and reputation of the husband.
23 Before we go the question whether the wife has substantiated the
said allegations, it will be necessary to deal with another argument
canvassed by the learned counsel for the wife. The argument was that
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at no stage a case was made out by the husband that the aforesaid
allegations amount to causing mental cruelty to him. Therefore, we
must make a reference to the affidavit in lieu of examination-in-chief of
the husband. In paragraph 33, there is a reference to the employment
of `J'. Paragraph 34 refers to the allegations made by the wife against
the husband concerning `J'. What is material is paragraph 40 of
affidavit in lieu of examination-in-chief. Relevant part thereof reads
thus:
"...I deny having told the Respondent that I have a two year baby
boy from my alleged wedlock with "J" and that I had kept both of
them at a premises allegedly purchased by me at Lokhandwala
Complex. I say that there is not even a shred of truth in any of
these baseless and ridiculous allegations. I say that the
Respondent is under the mistaken belief that by falsely imputing
these allegations to me and is under mistaken belief that by
putting words in my mouth, she will escape the consequences of
her own actions whereby she has defamed and maligned me,
caused immense mental torture and trauma to me, adversely
affected my respect and repute and in turn spoiled my image,
career etc., by resorting to the false allegations against my
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character of having performed second marriage, producing a child
etc., which she has been spreading in the society amongst my
friends, colleagues, acquaintances, patients, relatives etc., and has
even resorted to lodging false police complaints against me based
on the aforesaid allegations, which are entirely concocted and
figments of Respondent's crocked imagination."
24 Thus, there is a specific case made out in the affidavit in lieu of
examination-in-chief of the husband that the allegations made by the
wife in her additional written statement caused immense mental
torture and trauma which affected the image and career of the
husband. We may also note here that in clause (iv) of paragraph 22 of
the examination-in-chief, the husband has referred to the fact that the
wife filed a NC complaint dated 12th February 2005 alleging that he
has remarried and is guilty of offence Bigamy. He has stated that in the
complaint, the wife has alleged that the husband has a child from the
said relationship. In the same paragraph, he has stated that rumours
were spread about the said conduct of the husband with the sole
intention of maligning him. He has stated that as some of his patients
were informed by the wife about the said allegations, he suffered
anguish and mental torture amounting to cruelty.
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25 It is not in dispute that the allegations made by the wife in the
additional written statement were not put in so many words to the
husband during his cross examination. An argument was sought to be
canvassed by the learned counsel for the wife that the allegations
regarding unchastity were not made by the wife in that sense. In fact,
her case is that it was the husband who disclosed his relationship with
the said `J' to the wife. We have already quoted what is stated in the
additional written statement. It contains not only what was allegedly
disclosed by the husband to her but also what she alleged against the
husband. Moreover, in the examination-in-chief of the husband, it is
brought on record that the wife filed a NC complaint making
allegations of bigamy against the husband.
26 We have also perused the affidavit in lieu of examination-in-chief
of the wife. She has denied the allegations made by the husband that
when the husband reached the police station, he was informed that the
wife has made complaint alleging bigamy. In the examination-in-chief
the wife has stated thus:
"I say that contrary to the allegation as made I submit that it
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was the petitioner who himself on his way from police station
to home rebuked me saying that I must be in the know-how of
the fact that he was not at any other place than at Mota
Mahal, enjoying his life with the other woman and that it was
no use for me to make any grievance about the same and
lodge any missing or other report with the police and that I
should not worry about the petitioner missing from the
matrimonial home even if it was so for months together. I say
that the conduct of the petitioner in the above respect is
nothing but merely mental cruelty but also amounts to an
offence within the meaning of section 498-A of IPC"
27 Another portion of evidence is also relevant which reads thus:
"...It is correct that I had also lodged another complaint with
the Oshiwara Police Station dated 22.9.2005, but it was for
the reason that the petitioner deliberately broke down the
bathroom door so as to deprive me to take bath in privacy and
also with a view to implement his threats which were being
advanced by him from time to time to the effect that he
would take out the nude video clippings and cassettes of
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mine. I say and deny that I have ever lodged my false and
bogus complaints with the Oshiwara Police or Social Service
Branch etc."
28 We may also advert to the cross examination of the wife made by
the Advocate for the husband in paragraph 67 to 71 of the cross
examination which are material:
"67 In the year 2003, I came to know about intimacy and
his affair with one "J". I never associated with that "J". I have
seen her. She was a maid servant in our house. She
approximately worked for nine months. I am not having any
information about background of "J". I am not having any
document to show that she worked in my house.
68 It is true to say that Mota Mahal is situated adjacent to
Padmavati CHS where I was residing with the petitioner in
the year 2003. I am not in a position to say the flat number
of the floor where "J" was residing. I went to Mota Mahal
building to make enquiry about her residence with my friend's
friend. I do not remember her name. I was informed that she
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was residing in Mota Mahal building. I did not make any
further inquiry about her residence. I did not take any further
steps for her residence in Mota Mahal.
69 I never saw them together roaming at Public places as
stated by me. He has not given any video clippings to me of
himself and "J".
70 As per me, the address of the petitioner and alleged "J"
is at Nala Sopara and no other address is known tome. A
copy of NC is shown tome by his Advocate filed by him. It is
filed by me. Hence, Ex.114 is given to it.
71 It is true to say that in my affidavit, I have not
mentioned about his love affair, marriage with "J" and also a
child. I am not having document to show about his marriage
with "J" and the child. It is not true to say that my allegation
about his relation and marriage with "J" and child is false. It
is not true to say that he never told that he converted himself
to Muslim and performed marriage with "J" and have a child.
It is not true to say that there was no maid servant in our
house by name "J". It is not true to say that I have made such
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allegation against him to malign his image and to implicate
him in false criminal case. It is not true to say that I have
filed further complaints in police station and other social
organization making allegation about his relations with Jyoti.
A copy of the complaint filed by me to Commissioner of
Police, is shown to me by his advocate who has produced it.
It is filed by me. Hence, Exh.115 is given to it. It is not true
to say that in Exh.114 and 115, I have not mentioned that he
informed me about his relations with Jyoti and child."
(Underline added)
29 Thus, the wife reiterated that in the year 2003, she came to
know about the intimacy and affair of the husband with `J'. Though
she accepts that the said `J' was a maid servant in their house for nine
months, she has stated that she was never associated with `J'. Though
a specific allegation was made by her that her husband had put her up
in Mota Mahal building which is adjacent to the suit premises, the wife
stated that she was unable to disclose the floor or flat where the said
`J' was residing. Though wife came out with a specific case she has
seen her husband and said "J" roaming at public places, in the cross
examination, she admitted that she never seen her husband roaming
in public places with the said "J". Though her specific case was that her
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husband has given objectionable video clippings, in fact, no such
clippings were given. She admitted that she was not having any
document to show that the husband has married with `J' and has a
child. She was also confronted with a copy of the complaint filed by
her at Exh.115 containing similar allegations. She denied that she has
not mentioned that the husband had informed her about relationship
with `J'.
30 There cannot be any dispute that the allegations which the wife
has made against the husband as regards her relationship with another
woman are the allegations affecting the character of the husband. The
allegations have been made not only in the additional written
statement but also in her affidavit in lieu of examination-in-chief. The
allegations are of unchastity and illicit relationship with another
woman. The allegations are of extra marital relationship. The
allegations constitute assault on the character and reputation of the
husband.
31 At this stage, we may make a useful reference to the decision of
the Apex Court in the case of Vijaykumar Ramchandra Bhate Vs. Neela
Vijaykumar Bhate7. The law on this aspect has been clearly laid down
7 2006, 3 SCC 334
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by the Apex Court. In paragraph 7 of the said decision, the Apex Court
has held thus:
"7 The question that requires to be answered first is as to
whether the averments accusations and character
assassination of the wife by the appellant husband in the
written statement constitutes mental cruelty for sustaining the
claim for divorce under Section 13 (1) (i-a) of the Act. The
position of law in this regard has come to be well settled and
declared that levelling disgusting accusations of unchastity
and indecent familiarity with a person outside wedlock and
allegations of extra marital relationship is a grave assault on
the character, honour, reputation, status as well as the health
of the wife. Such aspersions of perfidiousness attributed to
the wife, viewed in the context of an educated Indian wife and
judged by Indian conditions and standards would amount to
worst form of insult and cruelty, sufficient by itself to
substantiate cruelty in law, warranting the claim of the wife
being allowed. That such allegations made in the written
statement or suggested in the course of examination and by
way of cross-examination satisfy the requirement of law has
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also come to be firmly laid down by this Court. On going
through the relevant portions of such allegations, we find that
no exception could be taken to the findings recorded by the
Family Court as well as the High Court. We find that they are
of such quality, magnitude and consequence as to cause
mental pain, agony and suffering amounting to the
reformulated concept of cruelty in matrimonial law causing
profound and lasting disruption and driving the wife to feel
deeply hurt and reasonably apprehend that it would be
dangerous for her to live with a husband who was taunting
her like that and rendered the maintenance of matrimonial
home impossible."
(underline added)
32 We may also note a view taken by the Apex Court in the case of
K. Shriniwas Rao Vs. D.A.Deepa8. The said decision refers to another
well known decision of the Apex Court in the case of Samar Ghosh
wherein the Apex Court by way of illustration has set out several
grounds of cruelty on which a decree of divorce can be passed. By the
said decision in the case of K. Shriniwas Rao, the Apex Court has
added one more illustration. Paragraph 16 of the said decision reads
8 (2013) 5 SCC 226
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thus:
"16 Thus, to the instances illustrative of mental cruelty
noted in Samar Ghos, we could add a few more. Making
unfounded indecent defamatory allegations against the spouse
or his or her relatives in the pleadings, filing of complaints or
issuing notices or news items which may have adverse impact
on the business prospect or the job of the spouse and filing
repeated false complaints and cases in the court against the
spouse would, in the facts of a case, amount to causing mental
cruelty to the other spouse."
33 The learned counsel for the wife tried to argue that it is not
established that the allegations made by the wife are false. The
submission is that it was for the husband to prove that the said
allegations are false. In support of the said contention, he relied upon
the aforesaid decision of Calcutta High Court in the case of Anuradha
Ghosh Moulick wherein the Calcutta High Court has noted the
difference between the phrases "not proved" and "false". In the light of
the law laid down by the Apex Court, the question is whether the wife
had substantiated the allegations of serious nature made against the
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husband. On this aspect, it will be necessary to make a reference to the
decision of this Court in the case of Mrs.Manisha Sandeep Gade vs.
Sandeep Vinayak Gade (supra). Paragraph 31 of the said decision is
relevant which reads thus:
"31 In a matrimonial matter, one cannot apply the
standard of stricter evidence. Nothing prevented her from
establishing her allegations. The respondent could not have
established the negative by leading any further evidence that
the allegations made by the wife were false. The appellant
had made the allegations. The burden was on her. She had
failed to prove those allegations. Once she fails to prove those
allegations and if those allegations are not in consonance with
matrimonial relationship, and the husband complains that
they have caused him agony, the inference that they constitute
cruelty has to follow."
(underline added)
34 In the present case, wife has made no attempt to prove the
allegations made by her against husband affecting his character. She
has not chosen to examine any witness to prove the said allegations.
From the answers given by her in the cross examination, it is clear that
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even the allegation that the husband was residing with the said `J' in a
particular building could not be substantiated by her as she has not
disclosed the particulars of the premises in the said building.
Therefore, this is a case where there is a complete failure on her part to
prove the said allegations. The said allegations caused mental agony
and cruelty to the husband. Though the Family Court may not have
recorded elaborate finding, we concur with the with the ultimate
conclusion drawn by the Family Court on this aspect. The Family Court
was right in holding that there were unsubstantiated allegations made
by the wife against the husband affecting his character and reputation
which caused mental agony and cruelty to the husband. Therefore, the
decree of divorce will have to be confirmed only on this ground.
35 Now, the next issue canvassed by the husband is as regards
failure of the Family Court to pass a decree in terms of prayer clause
(b) of the petition which is a prayer for mandatory injunction directing
the wife to vacate the suit premises. Admittedly, the husband has not
claimed exclusive right, title and interest in respect of the suit premises.
On the contrary, admitted position seems to be that the suit premises
stand in the joint names of the parties. In view of this admitted
position, the husband was not entitled to seek a relief directing the
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wife to remove herself from the suit premises, as the wife had an
undivided share as well as right, title and interest in the suit premises.
The husband did not claim any declaration of exclusive ownership and
did not claim a relief of passing a decree of possession. Therefore,
there was absolutely no justification for seeking a drastic relief of
mandatory injunction against the wife of removing herself from the suit
premises especially when she was claiming that it was a matrimonial
home.
36 Then comes the challenge by the wife to that part of the decree
by which the learned Judge of the Family Court has granted a
permanent injunction restraining the wife from harassing the husband
in any manner whatsoever . The word harassment is a subjective term.
The Judgment is silent on the scope and meaning of the word
harassment. On plain reading of the said part of the decree, apart from
the fact that there is a serious doubt whether such a decree could have
been passed, the said decree is incapable of being enforced. The law
on this aspect is very well settled. No Court or Tribunal can grant relief
which is incapable of being enforced. One such decision in which the
law is reiterated by a Division Bench of this Court in the case of MRF.,
Ltd.Goa and Goa MRF Employees Union, Goa and another 9. Relevant
9 2003 (4) L.L.N.1182
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paragraph is paragraph 10 which reads thus:
"10...No Court or Tribunal will grant a relief if it is incapable
of enforcing it either by execution or otherwise. We have
earlier noted that the expression "incidental" would not
include an interim relief by way of preventive injunction. No
judgment of the Apex Court has been cited to show that the
matter has been concluded by any judgment. On the contrary
in Delhi Cloth and General Mills (vide supra), the Apex Court
has noted that the judgment of Management, Hotel Imperial
the question was posed but not answered. Therefore, even if
it was held that there was such a power to grant relief there is
no power or mechanism for the relief to be enforced. If there
be a power to grant relief there must also be power to enforce
the relief. In that context it must be held that no power is
conferred on the Tribunal or the other authorities under Chp.
II to grant relief of injunction."
Therefore, the said part of the decree cannot be sustained.
37 The Family Court has passed a decree of maintenance in the
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sum of Rs.3000/- per month from the date of the decree. The first
submission made by the learned counsel for the husband by relying
upon the deposition of the wife recorded on 6 th August 2016 in another
proceedings. His submission is that the said deposition shows that at
least from the year 2011, the wife has been employed. However, there
is no application made by the husband for leading additional evidence.
The copy of deposition has been tendered across the bar without
making a proper application. Moreover, if after passing of the
impugned decree, the wife has obtained an employment, the husband
has a remedy available under sub-section 2 of section 25 of the said Act
to apply for variation of the decree granting maintenance. We have
carefully perused the cross-examination of the wife made by the
husband on this aspect. In paragraphs 52 and 53 of the cross-
examination, it is stated by her that she was in the employment of a
Bank from September 2007 to June 2008. In the present case, as
narrated earlier, the maintenance is made payable from 31 st March
2009. There is nothing brought on record in the cross examination of
the wife and there is no evidence adduced to show that on the date of
the impugned decree, the wife had a source of livelihood or that she
had any income. We must note here that against the prayer of the wife
for grant of maintenance of Rs.35,000/- per month, the Trial Court has
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granted maintenance of Rs.3,000/- per month. There is finding
recorded that no evidence could be adduced by the husband to show
that the wife was earning. We find no error with the said finding.
While fixing the quantum of maintenance at Rs.3,000/- per month, the
learned Judge has taken into consideration the admitted fact that the
husband was doing medical practice at Charni Road and Kandivali,
Mumbai. Therefore, it is impossible to find fault with the finding of
the learned Judge that the wife was entitled to maintenance at the rate
of Rs.3,000/- from the date of the decree. As stated earlier, if there are
any subsequent events warranting exercise of power under sub-section
2 of section 25 of the said Act, it is always open for both the husband
and wife to take recourse of the remedy provided under sub-section 2
of section 25 of the said Act.
38 Accordingly, we dispose of the Appeals by passing the following
order:
(i) Family Court Appeal No.149 of 2009 filed by the husband is
dismissed;
(ii) Family Court Appeal No.95 of 2009 filed by the wife is partly
allowed. The decree passed by the Family Court on the ground of
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desertion under clause i(b) of Sub-section (1) of 13 of the Hindu
Marriage Act, 1955 is hereby set aside. However, the decree of
divorce on the ground of cruelty under clause i(b) of Sub-section (1)
section 13 of the said Act is hereby confirmed;
(iii) The Decree of injunction granted by the Family Court restraining
the wife from harassing the husband in any manner whatsoever is also
set aside;
(iv) Both the pending civil applications are disposed of as not pressed;
(v) Considering the status of both the parties, and the nature of
controversy, there will no order as to costs in both the Appeals;
(vi) At this stage, the learned counsel for the wife seeks continuation
of clause 5 of the order dated 15 th February 2016 passed by the Apex
Court in Civil Appeal No.1402 of 2016. We have upheld the decree of
the Trial Court by which prayer for mandatory injunction prayed by the
husband has been rejected. The order of injunction passed against the
wife has been set aside. The wife did not claim any relief in respect of
the suit premises by filing any counter claim. Therefore, there is no
reason to continue the direction contained in paragraph 5 of the order
dated 15th February 2016 of the Apex Court in Civil Appeal No.1402 of
2016;
(vii) We, however, make it clear that if there is any apprehension on
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the part of the wife that she will be dispossessed from the suit
premises, it will be open for her to adopt substantive proceedings in
accordance with law.
(ANUJA PRABHUDESSAI, J.) (A.S. OKA, J.)
