Mr. Sunesh Sudhakar Rele vs Mrs.Seema Sunesh Rele
2021 Latest Caselaw 6198 Bom

                                                   18-FCA-106-2012.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION


                 FAMILY COURT APPEAL NO. 106 OF 2012


Sunesh Sudhakar Rele
Age: 44 years, Occu: Nil,
R/o. 3, Sarla Sadan,
Haldankar Bridge,
Mumbai - 400007.                                     ... Appellant
                                                      (Orig. Petitioner).
       Versus

Seema Sunesh Rele
33 years, Occu: Service
R/o. Flat No.1, Building No. 2A,
Saptarshi CHS Ltd.,
Datta Mandir Road,
Virar (West), District: Thane,
Pin Code : 401 303.                                  ... Respondent
                                                   (Orig. Respondent).

                                     ...
Mr. V. Y. Sanglikar, for the Appellant.

None for the Respondent.
                                         ...


                                  CORAM : R. D. DHANUKA &

                                          V. G. BISHT, JJ.

                         Reserved on    : 26th February, 2021.

                         Pronounced on : 07th April, 2021

JUDGMENT (PER : V. G. BISHT, J.)

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The appellant-husband has filed this Family Court Appeal

against the Judgment and Order dated 2nd April, 2012 passed by

the Family Court in Petition No. A-22 of 2010 whereby this Petition

seeking divorce on the ground of cruelty as provided for under

Section 27(d) of the Special Marriage Act, 1954 ( for short, "the

act") has been dismissed.

2 The appellant-husband entered into the matrimonial alliance

with respondent-wife on 10th July, 2008 by registering the marriage

with the Registrar of Marriages, Old Custom House, Shahid

Bhagatsingh Marg, Fort, Mumbai No.1. Parties have no issue from

the wedlock.

3 It is the case of the appellant that from the day of their

marriage the respondent was not very happy and was not talking

with him and his family nicely. On the next day of the marriage

itself, the respondent informed the appellant and his parents that

her father had forced her into this marriage and had not allowed to

get married to the person she wanted to and she had no intention

to continue with this marriage and would do everything to break-

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up this marriage as she wanted a divorce.



4       The appellant-husband further alleged that after their

marriage, the respondent started cruel and rude behaviour with

him and his parents, who are senior citizens. She used to abuse his

parents for petty issues and also used to give bad words to them

and threatened to beat them on several occasions.

5 Appellant-husband then contends that the respondent

informed him of having an affair with some other boy, who was

very well known to her father but her father was against the said

relationship, he did not inform the same to the appellant and his

parents and concealed this material information and forced her to

marry him against her wish. This speaks volumes of mental cruelty

that the appellant and his parents had been a victim of. She also

expressed her intention of being not interested in the said marriage

and also said that she would continue to keep sexual relations with

the other men even after her marriage with him with the sole

intention of humiliating and spoiling him and his family name in

the society.

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6       According to appellant-husband, he was tolerating such cruel

behaviour of the respondent just to save his marital life but after

two months of the marriage in the month of September 2008, the

respondent picked up a quarrel and started abusing him for no

reason. Even she left the matrimonial home only to return after ten

days with an intention of divorce.

7 The appellant-husband further alleged that the respondent

used to avoid the physical relations and would tell that she was

getting sexual satisfaction from other men and did not need to keep

any sexual relations with him as he is of short height, not having

good physique and not having real hair and wears a wig.

8 Ultimately, the respondent left the matrimonial house on 23 rd

April, 2009 and took all her ornaments along with her. After

leaving the matrimonial home, the respondent even sent a legal

notice and claimed of having been pregnant, although she was not

pregnant and had no signs of any pregnancy when she left the

matrimonial home.

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9        The appellant-husband lastly states that the respondent had

made his life very miserable and it is very difficult to live together

and to enjoy marital life. It is against this backdrop, the appellant

instituted the Petition for divorce on the ground of cruelty.

10 The aforesaid Petition was resisted by the respondent-wife by

filing her written statement at Exh. 13. The allegations made in

the Petition were denied by the respondent. It is the case of

respondent that she never asked divorce from the petitioner and

rather, it was appellant who repeatedly asked for divorce as he

wanted to remarry again with other girl for sake of fun and

enjoyment. She denied that she ill-treated her in-laws and ever

assaulted them. It is her case that she had never any affairs with

another person before her marriage and as the appellant and his

father asked from her father dowry by way of moneys and flat and

as the same was refused, they have thrown mud on her clean

character. She also alleged that due to harassment and mental

torture by the appellant she suffered a miscarriage.

11       According to respondent-wife, she was always ready and still

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ready to stay with the appellant and lead a peaceful married life

and there being no merit in the Petition, the same is liable to be

dismissed with costs.

12 The learned trial Judge framed issues at Exh. 15. After

recording the evidence, the learned Judge came to the conclusion

that the appellant has failed to prove that the respondent treated

him with cruelty as contemplated under Section 27(d) of the Act.

The learned Judge accordingly dismissed the Petition of divorce.

13 Mr. Sanglikar, learned counsel appearing for the appellant-

husband submitted that the learned Judge of the Family Court has

gravely erred in dismissing the Petition. He submitted that the

learned Judge failed to appreciate Section 27(d) of the Act and

rather, after going through the said provisions, he ought to have

arrived at a conclusion that the appellant was entitled for decree

for divorce.

14 Stretching the submissions further, the learned counsel

contended that the learned Judge of the Family Court ought to

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have held that the respondent was very cruel in her behaviour

towards the appellant and his parents as she continuously

harassed, abused and assaulted the parents of the appellant.

15 Similarly, the respondent-wife was never interested in

continuation of the marriage with the appellant-husband and was

more interested in snatching and/or exploiting moneys from the

appellant and this fact is evidently clear from her illegal demand of

Rs.10 lakhs for giving consent for decree for divorce. Learned

counsel also invited our attention to the notice which contains not

only abusive words but also demand of Rs.10 lakhs. Since there

was total failure on the part of the learned Judge of the Family

Court in appreciating the evidence and material on record, the

impugned judgment and order deserves to be set aside by allowing

the Petition of appellant-husband, argued learned counsel.

Learned counsel also placed reliance in Suman Kapur Vs. Sudhir

Kapur1 in support of his submissions.

16       None appeared for the respondent-wife though served when


1 AIR 2009 SC 589

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the matter was called out.




17       We have gone through the evidence and the necessary

documents forming part of the compilation and the record and

proceeding during the course of argument.

18 The word "cruelty" has not been defined in the Act. Cruelty

can be of two kinds, one is physical cruelty and the other is mental

or by conduct. Casual and trivial matters arising between the

spouses do not amount to cruelty. The principle question which

requires for consideration in the instant case is as to whether from

the evidence on record, can it be inferred that the respondent-wife

has committed an act of cruelty towards the appellant-husband and

whether the marriage is required to be dissolved on the aforesaid

ground.

19 The appellant-husband in support of his case examined

himself and his father Sudhakar Surendranath Rele. On the other

hand, the respondent-wife examined herself and her father Jairam

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Savleram Mozad.

20 The appellant-husband has filed his affidavit which is at page

64 in the compilation. In his affidavit he deposed that on the next

day of the marriage itself, the respondent -wife informed him and

his parents that her father had forced her into the marriage and

had not allowed her to get married the person she wanted to and

she had no intention to continue with the marriage and that she

would do everything to break up this marriage and she wanted a

divorce. He further states that even on their honeymoon she was

abusing him daily and reminding him that her father had forced

her into this marriage. Even after returning back from their

honeymoon, the respondent -wife abused him and his parent daily.

His parents being senior citizens were subjected to daily abuses on

petty issues and she used to give bad words to them and threatened

to beat them on several occasions.

21 His evidence then shows that even the respondent-wife

informed him of having an affair with some other boy who was

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very well known to her father but as her father was against the said

relationship, he did not inform the same to him and his parents.

Respondent-wife's office timings were from 9-30 a.m. to 6-00 p.m.

but she always used to come home only after 9.00 p.m. daily.

When confronted, the respondent-wife would tell that she is doing

all this purposely as she was not at all interested in the said

marriage. Even she told that she would continue to keep sexual

relationship with other men even after her marriage with the sole

intention of humiliating and spoiling his and his family's name in

the society. She would return from the office after 9-00 p.m. and

would tell him how much she had enjoyed having sex with other

men that day and that she would continue to keep sexual

relationship with other men even after her marriage. She also used

to avoid physical relations with him by saying that he is short in

height, does not have good physique, have no real hair and wears a

wig. Because of all these harassment his parents shifted to their

native place at Pune in November 2008.

22 It is his further evidence that the respondent-wife always

used to abuse him and used to call him dirty words like, " gjkeh ".

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Even she used to call his father as "FksjMk" and corrupt person and

even attempted to assault him. Ultimately, she left the matrimonial

home on 23rd April, 2009 along with various gold ornaments and

also gave a writing to that effect (Exh.C).

23 At the time of leaving the matrimonial home although she

was not pregnant but in a notice dated 10 th June, 2009 served by

her lawyer she claimed the pregnancy from him. Vide notice

dated 26th October, 2009 she even claimed and demanded a sum of

Rs.10 lakhs for giving him a divorce. Thus, according to him, after

considering the various instances of cruelties to him and his family

members he prayed that the marriage solemnized between him and

the respondent-wife be dissolved by a decree of divorce.

24 In order to substantiate the case for the cruelty, various

instances are cited by the appellant-husband in his substantive

evidence which are as under:

i) That on the very next day of the marriage, the respondent-wife informed him and his parents

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that her father had forced her into the marriage and she had no intention to continue with the marriage and that she would do everything to break up the marriage as she wanted a divorce;

ii) That the appellant-husband and his parents were always subjected to abuses;

iii) That she would call him "gjkeh"(knavish) and his father as corrupt and "FksjMk" (used contemptuously to an old person);

iv) That she revealed of having an affair with a boy, a fact which was known to her father;

v) That she would continue to keep sexual relations with other men even after her marriage with the sole intention of humiliating him and spoiling him and his family's name in the society.

vi) That after returning home from the office after 9-00 p.m. she would tell appellant-husband how much she had enjoyed having sex with other men that day; and

vii) That she used to avoid to have physical relations and tell him that he is short in height, not having good physique and real hair and wears a wig.

25       It is apposite to note here that all the above instances have


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been simply denied, in the fashion of the denial in the form of

written statement and has been replicated by respondent-wife in

her examination-in-chief.

26 All the aforesaid instances are firmly established on record in

as much as, quite surprisingly, these instances are neither

controverted or assailed nor even remotely touched in the cross-

examination. Simply, the version of appellant-husband in

consonance and confluence with pleadings have gone unchallenged

in the cross-examination without being tested with any sincerity

and vigorousity by the respondent-wife.

27 We also note from the above instances with deep anguish that

relation between them was not marred by ordinary wear and tear

of matrimonial life. Respondent-wife's bursting out at regular

intervals as to tying of nuptial knot against her wish, having an

affair with other boy and her leading adulterous and a life of sexual

debauchery by all means can be termed as marital misconduct

constituting mental cruelty to the husband, to say the least.

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28       From the evidence of appellant-husband, it is apparent that

respondent-wife after leaving the matrimonial home used to send

him SMSs in a very filthy language. The typed copy of the list of

SMSs is annexed at Exh. 'J' and reads thus:

          Date            Time                        Message
                         3.08       Harami nich tu baap honar (gjkeh uhp rq cki gks.kkj)
                         3.09       Harami nich tu baap honar (gjkeh uhp rq cki gks.kkj)
                         3.12       Tujha nich harami thirdclass mul majha potat
          04.06.2009                ahe (rq> uhp gjkeh FkMZDykl eqy ekÖ;k iksVkr vkgs-)
                         7.24       Taklya tu baap honar (VdY;k rq cki gks.kkj-)
                         7.54       Harami taklya halkat tu baap honar ( gjkeh VdY;k
                                    gydV rq cki gks.kkj-)

Tula tuza mula baddal kahich apulki nahi. Kiti 05.06.2009 7.59 kamina, halkat, nich baap ahes tu aani tujha khandan (rqyk rq>k eqykcn~ny dkghp vkiqydh ukgh- dhrh dehuk] gydV] uhp cki vkgsl rq vkf.k rq> [kkunku-

4.27 Harami tu baap honar (gjkeh rq cki gks.kkj)

27.06.2009 4.33 Bhikari tu baap honar ( fHkdkjh rq cki gks.kkj) 5.04 Harami tujha paap potat gheun phirte ( gjkeh rq>k iki iksVkr ?ksoqu Qhjrs-)

29 The above SMSs are not again denied by the respondent-wife

nor its truthfulness is questioned in the cross-examination. The

above noted SMSs are definitely and simply in bad taste. This goes

to show respondent-wife's attitude, conduct and behaviour towards

appellant-husband not only indignant and rude but humiliating as

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well. She repeatedly addressed husband as "gjkeh"(knavish) over

and over again over a period of time. This perpetual nagging was

certainly and completely intolerable. There appears to be element

of truth when appellant-husband deposed that his life became

miserable because of rude and cruel behaviour of respondent-wife

as it constantly endangered of his mental peace because of

infliction of abusive words upon him.

30 The circumstances could not be considered as conducive to

congenial married life. Callous attitude of respondent-wife in this

behalf certainly amounts to cruelty. The incident so noted can not

be by any stretch of imagination be regarded as trivial matters in

the day-to-day married life and rather were very serious.

31 It is then seen from the evidence of appellant-husband that

the respondent-wife finally on her own left the matrimonial home

along with her parents and brother on 23/04/2009. She also took

her ornaments along with her as per the list and handed over the

house keys as she was leaving his house permanently with the

intention to never return. She also gave in writing the above noted

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facts. The said writing is at Exh. 'C'.

32 From a bare reading of Exh. 'C', it would appear that the

respondent-wife on her own volition left the matrimonial house on

23/04/2009 along with the ornaments as per the details and

description given therein. This evidence of appellant-husband is

also supported by appellant's father who also testified before the

Court. Appellant's father, namely, Sudhakar Surendranath Rele has

clearly stated in his evidence that when the respondent left the

house, she took all her jewellery. He was very much present and

tried to convince her but she did not listen. Even she executed a

writing (Exh.C) when she collected all her ornaments. This

evidence is nowhere assailed in the cross-examination by the

respondent-wife.

33 As against above, the respondent-wife stated in her evidence

that on 04/04/2009 she demanded gold jewellery from the

appellant and his parents as she wanted to attend her cousin's

marriage. However, they refused to give her ornaments, abused

and threatened her to throw out of their house. With the result to

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save her life, she was compelled to leave the in-laws house.

34 The evidence of respondent-wife is sharply at odds vis-a-vis

the writing at Exh. 'C' executed by her. On the contrary, Exh. 'C'

shows that she had no complaints about the ornaments. The said

writing even does not suggest remotely that she was compelled to

leave the house after handing over the keys of the house to the

appellant.

35 Since this Exh. 'C' was shown to the respondent-wife in the

cross-examination it was marked at Exh. 60. It appears from her

cross-examination that she and her father were forced to put their

respective signatures on Exh. 60. However, she and her father

admitted in their respective cross-examination that they did not file

any complaint before the police against the appellant-husband and

his father about her and her father's signatures being taken under

duress.

36       In the case of Suman Kapur Vs. Sudhir Kapur (Supra), the

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wife was a career-oriented lady wanting to pursue her professional

career to achieve success and thus was found constantly and

continuously avoiding staying with husband and preventing him to

have matrimonial relations. Further, letters written by her showing

that she was keen to live independent life and wanted that husband

should not bring her marital status preventing her from pursuing

her career, had lost interest in marriage and did not believe in

Indian Culture. She was further found to have called parents of

husband as "Ghosts" and had gone to extent of making serious

allegations that husband had married to an American woman. In

view of that findings the Hon'ble Apex Court termed conduct of

wife amounts to mental cruelty.

37 As far as the case in hand is concerned, we have not only

enumerated various instances vis-a-vis respondent-wife but have

also found her conduct and intention quite questionable.

38       The respondent-wife has also examined her father in support

of her case.            Her father Jairam Savleram Mozad states in his


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examination-in-chief that because of the harassment given by

husband and the parent-in-laws and fearing that something

untoward may happen to her life, her daughter left her

matrimonial house on 23/04/2009.

39 There is no satisfactory corroboration to the version of father

from the mouth of his daughter. Very surprisingly the suggestion

given to the appellant- husband in the cross-examination would

show that the respondent- wife was dragged and driven out of the

conjugal home which is out rightly denied by him. The suggestion

so given is neither borne out of the pleading nor gets support from

the testimonies of either respondent-wife or from her father.

Conflicting stands have been taken by the respondent-wife and her

father.

40 The evidence of appellant-husband then shows that when the

respondent-wife left the conjugal home she was not pregnant and

had no signs of pregnancy. But, she alleged and claimed the

pregnancy in her notice dated 10/06/2009 sent by her through her

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lawyer. On the other hand, it is the evidence of respondent-wife

that due to mental torture and frequent threatenings given by the

appellant-husband her child was not born and there was a

miscarriage. Owing to their strange behaviour she lost her child.

This was an irreparable loss to her and therefore, according to her,

the appellant-husband should pay her a sum of Rs.10 lakhs towards

the deterioration of her health.

41 We do not find any material on record to substantiate the

version of respondent-wife that because of some extraneous

reasons, like her disturbed mental condition catalysed by the

alleged behaviour of husband and parent-in-laws she suffered

miscarriage. Surprisingly, the learned trial Judge, at para 26 of the

impugned judgment observed that the child was aborted.

42 There is sea of difference between abortion and a

miscarriage. The evidence led by respondent-wife is that of

miscarriage and not abortion. In either case, again there is no

evidence on record to show that the fact of miscarriage was

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immediately informed to appellant-husband. If it was abortion, as

per the observation of the learned trial Judge, then certainly

respondent-wife denied the appellant- husband the joy of feeling of

fatherhood and his parents were also deprived of grand-parenthood

of a new arrival. It is also not the finding of the learned trial

Judge that the pregnancy was either aborted or terminated with

the knowledge or consent of appellant-husband. If, on the other

hand, it was a case of natural abortion or miscarriage then in that

eventuality also neither appellant-husband was kept in loop, leave

apart the absence of material substantiating the claim of

miscarriage suffered by respondent-wife.

43 One more disturbing aspect emerging from the record is that

respondent-wife was reluctant to stay with appellant-husband and

somehow wanted to achieve monetary gain. Her evidence shows

that because of alleged miscarriage her health was deteriorated and

therefore, she claimed Rs.10 lakhs from appellant-husband. This is

quite inconsistent with her own notice dated 16/10/2009 (Exh.

'H') addressed to the counsel of appellant-husband. In the said

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reply notice she categorically stated that she did not want to give

divorce to appellant-husband and if appellant-husband wanted a

divorce from her then he should shell out an amount of Rs.10

lakhs towards the compensation for giving consent for decree for

divorce. This questionable conduct of respondent-wife went

unnoticed from the sight of learned trial Judge.

44 Even otherwise, the crucial admission and contradiction

appearing in the evidence of respondent-wife and her father, as

pointed out by us herein-above, were also not taken in proper

perspective by learned trial Judge. Above all, the learned trial

Judge also lost sight of the fact that the testimony of appellant-

husband remained intact in the cross-examination. It is a case of

virtual no cross-examination of various instances as deposed to by

appellant-husband in his substantive evidence. In a sense, the

learned trial Judge recorded perverse findings which are not

consistent with the evidence on record. Therefore, the findings so

arrived at by learned trial Judge is not sustainable.

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45       Considering the evidence on record, in our view, the

appellant-husband has successfully made out a case for getting a

decree for divorce on the ground of cruelty.

46 In view of above, we pass the following order:

ORDER

Family Court Appeal No. 106 of 2012 stands allowed.

i) The impugned judgment and decree dated 2 nd April, 2012 passed by the learned Judge of the Family Court is quashed and set aside.

ii) Petition No. A-22 of 2010 stands decreed with costs.

iii) Marriage between appellant-husband and respondent-

wife, solemnized on 10th July, 2008 stands dissolved by a decree of divorce under Section 27(1)(d) of the Special Marriage Act, 1954.

iv) Decree be drawn accordingly.

              (V. G. BISHT, J.)               ( R. D. DHANUKA, J.)




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