Bombay High Court
Anurag S/O Satyanarayanji ... vs Sarita W/O Anurag Bhalotia on 21 March, 2017
Bench: V.A. Naik
2103FAC206.14-Judgment 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO. 206 OF 2014
APPELLANT :- Anurag son of Satyanarayanji Bhalotia, Aged
(HUSBAND) about 45 years, Occupation Advocate,
Resident of 301, Ghatate Chambers,
Panchsheel Square, Nagpur-440012 15.
...VERSUS...
RESPONDENT :- Sarita wife of Anurag Bhalotia, Aged about
(ORIGINAL RES) 43 YEARS, Resident of Krishnachandji
Khetan, Juni Bhaji Mandi, Kamptee 441002.
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Mrs.U.A.Patil, counsel for the appellant.
None for the respondent.
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CORAM : SMT. VASANTI A NAIK &
V.M.DESHPANDE, JJ.
DATED : 21.03.2017
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
By this family court appeal, the appellant challenges the
judgment of the Family Court, dated 31.05.2011 dismissing a petition
filed by the appellant for a decree of divorce on the ground of cruelty
and desertion.
2103FAC206.14-Judgment 2/11
2. The parties to this appeal are hereinafter referred to as
Anurag and Sarita for the sake of convenience. The appellant-Anurag
got married with Sarita on 21.06.1995 at Nagpur and the parties started
residing together in the matrimonial home. A daughter-Palak was born
from the wedlock on 29.08.1996. In the petition filed by Anurag for a
decree of divorce on the ground of cruelty and desertion in the year
2006, it is pleaded by him that though he had treated Sarita lovingly
and caringly, Sarita did not respond to the same, in a similar fashion. It
is pleaded that Sarita used to pollute the mind of Palak, and used to
train her against Anurag. It is pleaded that though Anurag had an
opportunity to get the L.I.C. agency, he gave up the opportunity only
because of Sarita. It is pleaded that Sarita used to wear the ornaments
that were not gifted to her. It is pleaded that Sarita did not cover her
head with pallu of her saree only with a view to tease Anurag. It was
pleaded that Sarita sometimes removed her Mangalsutra and used to
wash the vermilion from her forehead though it was necessary for her
to retain it. It was pleaded that in view of the proceedings filed by
Sarita against him under section 125 of the Code of Criminal
Procedure, he was handcuffed by the police and was also sent to jail.
It was pleaded that on 02.10.2000, Sarita left the matrimonial home
along with Palak with a view to desert Anurag. It is pleaded that
despite the efforts of reconciliation, no reconciliation was possible in
view of the adamant behaviour of Sarita. On the aforesaid
2103FAC206.14-Judgment 3/11
pleadings Anurag sought a decree of divorce on the ground of
cruelty and desertion.
3. Sarita filed the written statement and denied the claim of
Anurag. Sarita admitted that she was living at Kamptee in her parental
home after 02.10.2000. Sarita denied that she used to remove the
Mangalsutra and the vermilion from her forehead with a view to tease
Anurag. Sarita denied all the adverse allegations that were levelled by
Anurag and pleaded that after some days of the marriage, Anurag had
demanded a sum of Rs.1,50,000/- from the parents of Sarita so that he
could leave his job at Saunsar and start a business in computers at
Nagpur. Sarita pleaded that since her family members could not fulfill
the demand, she was ill-treated by Anurag and Anurag used to abuse
her in a very filthy language. It is pleaded that ultimately Anurag left
his job at Saunsar and started residing in Nagpur. It is pleaded that
Anurag picked up quarrel with Sarita on 02.10.2000, dragged her to the
ground floor from the first floor and threatened her that she should not
return to the matrimonial home or else she would be killed. It is
pleaded by Sarita that though she was thrown out of the house, she
stood at the entrance of Ghatate building with a hope that Anurag
would take her to the matrimonial home. It is submitted that she did
not only wait at Ghatate building but she also phoned the relatives of
2103FAC206.14-Judgment 4/11
Anurag at Gandhinagar and Ramdaspeth but they did not come to
Panchasheel square to help her. It is pleaded that the husband of her
sister fetched her at 2.00 a.m. in the night and she started residing in
her parental home since then. It is pleaded that on 03.10.2000, she
again went to the matrimonial home with a view to reside with Anurag
but he did not permit her to enter into the house. Sarita pleaded that
she tried to reconcile the matter through various relatives that are
mentioned in the written statement but Anurag was not ready to reside
with her. Sarita sought for the dismissal of the family court appeal.
4. On the aforesaid pleadings of the parties, the Family Court
framed the issues. The parties tendered their oral evidence and
examined their witnesses. Certain documents were also produced by the
parties on record. On an appreciation of the evidence on record, the
Family Court dismissed the petition filed by Anurag. Anurag has
challenged the judgment of the Family Court in this appeal.
5. Mrs. Patil, the learned counsel for Anurag submitted that the
Family Court has not considered the evidence in the right perspective
while dismissing the petition filed by him. It is stated that Sarita used
to remove the vermilion from her forehead on some occasions and also
removed her Mangalsutra with a view to tease Anurag. It is submitted
2103FAC206.14-Judgment 5/11
that the aforesaid acts on the part of Sarita caused agony to Anurag. It
is submitted that after 02.10.2000, Sarita did not make any efforts to
reside with Anurag and this shows that Sarita desired to desert Anurag.
It is submitted that Sarita used to pollute the mind of Palak against
Anurag and the said act on the part of Sarita, has caused great pain and
agony to Anurag. It is however fairly stated that there is nothing else
either in the pleadings or the evidence of Anurag or any of his family
members or neighbours to show that Sarita had treated Anurag with
cruelty. It is submitted that in the circumstances of the case, when the
parties are residing separately for more than sixteen years, it would be
necessary to dissolve the marriage between the parties by a decree of
divorce. It is stated that it is not possible for the parties to reside
happily in the matrimonial home and, hence a decree of divorce should
be passed.
6. On hearing the learned counsel for Anurag and on a perusal
of the Record and Proceedings, it appears that the following points arise
for determination in this Family Court Appeal:-
I) Whether Sarita had treated Anurag with cruelty?
II) Whether Sarita had deserted Anurag?
III) Whether Anurag is entitled to a decree of divorce
on the ground of cruelty and desertion?
2103FAC206.14-Judgment 6/11
IV) What order?
7. We have already narrated the pleadings of the parties in the
earlier part of the judgment. Though the petition runs into several
pages, there is no other allegation in the petition filed by Anurag
against Sarita except the allegations that Sarita used to pollute the mind
of Palak against Anurag, that she never used to cover her head under
the pallu with a view to tease him and that she sometimes used to
remove the vermilion from her forehead and her Mangalsutra. A
general allegation that Sarita suffered from an ego problem is also made
in the petition. It is pleaded that Sarita had left the matrimonial home
on 02.10.2000 with a view to desert Anurag and she had not returned
to the matrimonial home. It is pleaded that despite the efforts by
Anurag for reconciliation, there was no reconciliation due to the
adamant behaviour of Sarita. Apart from this, there is no other pleading
in the petition filed by Anurag, seeking a decree of divorce on the
ground of cruelty and desertion. Even if we accept the statements made
by Anurag in his petition on their face value in respect of the acts of
cruelty by Sarita, it cannot be held by any stretch of imagination that
Sarita had treated Anurag with cruelty. In the 21 st century, a man
would not be entitled to seek a divorce solely on the ground that his
wife does not cover her head with the pallu of her saree and sometimes
2103FAC206.14-Judgment 7/11
removes the Mangalsutra and vermilion from her forehead. A woman
cannot be expected to cover her head with a pallu in this century. In
any case, that cannot be a ground for divorce. Merely because a woman
sometimes removes her Mangalsutra and the vermilion on her forehead,
a man cannot seek the severance of the matrimonial ties. Anurag has
no other serious complaint against Sarita except the above complaint.
It is not pleaded by Anurag that there were constant fights between
Anurag and Sarita and it was not possible for him to cohabit with Sarita
under one roof. It is not the case of Anurag that Sarita was short-
tempered or that she constantly fought with Anurag or nagged him. In
our view, as rightly held by the Family Court, the act of not covering the
head in a pallu and sometimes removing the vermilion from the
forehead or the Mangalsutra would not be the acts that would
constitute cruelty within the meaning of the term, under the provisions
of the Hindu Marriage Act. On a reading of the evidence of Anurag and
all the other witnesses examined on his behalf including his relatives
and neighbours, it appears that they have not levelled any serious
allegation against Sarita. In his evidence, Anurag has praised and
glorified himself and has tried to impress upon the Court as to how he is
a self-made man though he had no support from any of his family
members, his father having died when he was very young. Anurag has
praised himself in his evidence also. He has only tried to point out how
2103FAC206.14-Judgment 8/11
well he behaved with Sarita and Palak and how good a man he is.
However, there is nothing in the evidence of Anurag to show, much
less, any evidence narrating any incident that could show that Sarita
had treated Anurag with cruelty. Anurag has neither pleaded nor
proved, in what manner Sarita had polluted Palak's mind against
Anurag and hence the bald allegation made by him cannot be accepted.
The mother of Anurag entered into the witness box only to state that
Sarita used to like having the food outside the house on some occasions
and also loved outing. Unfortunately, this is not the pleading in the
petition filed by Anurag. Even if he had pleaded so, that cannot be an
act that would constitute cruelty as a young married girl would
sometimes like to go for an outing and would like to eat in a restaurant.
Though the evidence is enormous in volume, the same signifies nothing.
There is no serious allegation against Sarita either in the evidence of
Anurag or in the evidence of his witnesses. In the circumstances of the
case, it cannot be held that Sarita has treated Anurag with cruelty.
9. As regards desertion, it is necessary to note that though it
is the case of Anurag that Sarita has left the matrimonial home on
02.10.2000 without any just or reasonable excuse along with Palak, the
evidence of Sarita is otherwise. Sarita has pleaded and has also stated
in her evidence that she was dragged to the ground floor from the first
2103FAC206.14-Judgment 9/11
floor and was thrown out of the house by Anurag. She has categorically
pleaded and has also stated in her evidence that she waited for a long
time in the dead of the night near Ghatate building with a hope that
Anurag would take her back to the matrimonial home. She has further
stated that though she called up two of the relatives of Anurag to
inform them about the said incident, they did not come to help her.
She has stated that she left with her sister's husband at 2 O'clock in the
night as Anurag was not willing to take her back in the matrimonial
home. It is pleaded by Sarita and also stated in her evidence that on the
next day, i.e. on 03.10.2000, she went to the matrimonial home with a
view to reside with Anurag but, Anurag did not permit her to enter into
the matrimonial home. There is evidence on record to show that
meetings were held between the parties and their family members with
a view to reconcile the matter but, the same could not be reconciled.
We have perused the evidence of Anurag and Sarita in detail. We are
inclined to accept the evidence of Sarita that she was compelled to leave
the matrimonial home on 02.10.2000. It is not possible to believe the
case of Anurag that Sarita had deserted him on 02.10.2000 without any
just or reasonable excuse. It is not possible that a married woman
would simply leave the matrimonial home never to return without any
reason. Sarita has not only pleaded but has also proved by her evidence
that after she was thrown out of the matrimonial home on 02.10.2000,
2103FAC206.14-Judgment 10/11
she waited near Ghatate building during the night with a hope that
Anurag would take her back in the matrimonial home. It appears that
Anurag however did not do so and though she had requested some of
the relatives of Anurag to help her, in the hour of difficulty, they did not
help her to secure an entry in the matrimonial home or also did not take
her to their home. Sarita had to go to Kamptee to her parental home
along with her relatives on 02.10.2000. The family court has rightly
believed the evidence of Sarita to hold that Sarita did not leave the
matrimonial home on her own but she was compelled to leave the
matrimonial home on 02.10.2000. It is therefore rightly held by the
family court that Sarita had not deserted Anurag. The family court
observed that Sarita had never stated in the notices issued by her to
Anurag that she was not ready and willing to reside with Anurag in the
matrimonial home. The family court found that there was a quarrel
between the parties on 02.10.2000 as Sarita's parents could not fulfill
the demand of Anurag in respect of establishment of a business in
computers in Nagpur and hence Sarita was not permitted to reside in
the matrimonial home. The family court, on a consideration of the
evidence of Sarita and Anurag and some of his witnesses observed that
Sarita was out of the house in the midnight on 02.10.2000 but Anurag
did not allow her to enter into the matrimonial home. Though Sarita
belongs to a reputed family, she was compelled to stand out of the
2103FAC206.14-Judgment 11/11
house during midnight. The family court, apart from observing that
Sarita had no intention to leave the matrimonial home and that she had
not deserted Anurag, observed that Anurag had behaved irrationally
even during the pendency of the proceedings before the family court
and considering the nature of Anurag which was eccentric and
irrational, it was not possible to expect that Sarita would reside with
him. We find that the family court was justified in holding in the
circumstances of the case that Sarita had not treated Anurag with
cruelty and that she had not deserted him. Anurag would not be
entitled to a decree of divorce on the ground of cruelty and desertion.
Since there is no scope for interference with the judgment
of the family court, we dismiss the family court appeal with no order as
to costs.
JUDGE JUDGE
APTE/KHUNTE
