Mrs. Lourdmary W/O Arick Thomas vs Arick S/O Anthankidas Thomas
2021 Latest Caselaw 2876 Bom

                                                              217 fca 28-2017 with 27-2017.odt
                                                   1

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH AT NAGPUR


                         FAMILY COURT APPEAL NO. 28 OF 2017
                                       WITH
                         FAMILY COURT APPEAL NO. 27 OF 2017


              Mrs. Lourdmary W/o Arick Thomas,
              Aged about 32 years, Occ. Household,
              R/o. C/o. Rubin Daniel, Near Manavata
              High School, Rameshwari Road, Nagpur.                        .... APPELLANT

                                         // VERSUS //

              Arick S/o Anthanidas Thomas,
              Aged about 36 years, Occ. Private Service,
              R/o. Ramngar, Pandharabodi, Nagpur.                         .... RESPONDENT

     ----------------------------------------------------------------------------------------------
                       Shri. N.S. Deshpande, Advocate for appellant.
                       Shri Masood Shareef, Advocate for respondent.
     ----------------------------------------------------------------------------------------------

     CORAM       : A.S. CHANDURKAR AND PUSHPA V. GANEDIWALA, JJ.

Date on which the arguments were heard : 10th FEBRUARY, 2021. Date on which the judgment was pronounced : 12th FEBRUARY, 2021.

JUDGMENT: [PER: A.S. CHANDURKAR, J.]

Since both these appeals filed under Section 19 of the

Family Courts Act, 1984 take exception to the common judgment of

the Family Court dated 02/05/2017 thereby allowing the petition

for divorce filed by the respondent herein and dismissing the

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petition for restitution of conjugal rights filed by the appellant

herein they are being decided together by this common judgment.

2. The facts in brief that are relevant for adjudication of

these appeals are that on 24/10/2007 the respondent-husband

married the appellant-wife. Out of that wedlock a daughter was

born on 28/03/2009. It is the case of the husband that in the initial

period after marriage they resided together along with the mother of

the husband and his two younger brothers. The wife however was

not interested in living with the entire family and she used to

frequently visit her parents' house. On 22/07/2008 the wife filed a

false complaint with the police Authorities. At the intervention of the

Mahila Cell they started residing together. After the birth of the child

on 28/03/2009 the wife again returned to her parents' house and

despite efforts taken by the husband she was not willing to return.

Ultimately the husband through his counsel issued a legal notice to

the wife on 26/09/2009 calling her to resume cohabitation.

Thereafter with the intervention of his relatives the wife returned to

the matrimonial house on 14/04/2010. A Samzotapatra (Deed of

understanding) was prepared and signed by both the parties in

which they agreed to reside together. The wife further agreed that

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she would not leave the matrimonial house and would take care of

the husband and his family members. However, in view of the

reluctance of the wife to reside with other family members of the

husband he was required to make alternate arrangements for

residence. Despite that the wife continued quarreling with the

husband which resulted in mental and physical cruelty to the

husband. Hence on 27/01/2012 the husband filed the petition

under Section 10 (1)(x) of the Divorce Act, 1869 (for short "the Act

of 1869") seeking divorce on the ground of cruelty.

3. In the written statement filed by the wife she denied all

the allegations as made by the husband. On the contrary she

pleaded that it was the husband and his family members who were

illtreating her resulting in cruel treatment. Despite efforts taken by

her to reside happily with her husband the same was not possible.

According to the wife it was the husband who was not interested in

continuing to reside with her and he was interested in severing the

matrimonial ties.

4. In July 2013 the wife filed a petition under Section 32

of the Act of 1869 seeking restitution of conjugal rights. It was

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pleaded that despite her sincere effort to resume co-habitation the

husband was not interested in doing so.

The husband filed his written statement in those

proceedings and denied all adverse allegations. It was pleaded that

the wife had herself left the matrimonial house and she was

reluctant to reside with the husband. Considering the cruel

treatment inflicted by the wife the husband stated that the chances

of reconciliation were remote.

5. Both the aforesaid proceedings were tried together. The

parties led evidence with the husband examining himself and

another witness Vimalbai to substantiate his prayer for grant of

divorce. On the other hand the wife examined herself as well as her

mother to substantiate her stand. After considering the aforesaid

evidence the learned Judge of the Family Court recorded the finding

that the husband had proved that the wife had treated him with

cruelty. It held the husband entitled to grant of decree of divorce on

that count. Consequently the petition for restitution of conjugal

rights came to be dismissed. Being aggrieved the wife has preferred

the aforesaid two appeals.

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6. Shri N.S. Deshpande, learned counsel for the wife

submitted that the evidence on record brought by the husband was

insufficient to grant divorce on the ground of cruelty. The said

evidence was in general terms which reflected normal wear and tear

of marital life. Referring to the deposition of witnesses he sought to

urge that whenever the husband and wife resided separately from

other family members there were no quarrels amongst them. It was

only when they resided with other family members that some

disputes arose. There were no specific instance brought on record by

the husband to prove his allegation that the wife was treating him

with cruelty. According to him by filing proceedings for restitution of

conjugal rights the wife indicated her intention to continue living

with the husband and she was not interested in severing the marital

ties. Placing reliance on the decision in the case of Sanjana Sandip

Pednekar Vs. Sandip Sitaram Pednekar 2014 (3) Mh.L.J. 781 and

Shraddha w/o Prasad Ganu Vs. Prasad s/o Nilkanth Ganu 2018 (6)

Mh.L.J. 432, it was submitted that on the basis of the evidence on

record no decree for divorce on the ground of cruelty could have

been passed. He therefore submitted that while setting aside the

decree for divorce passed by the Family Court the petition for

restitution of conjugal rights was liable to be allowed.

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7. On the other hand Shri Masood Shareef, learned

counsel for the husband supported the impugned judgment.

According to him there was sufficient evidence on record to justify

the prayer for grant of divorce on the ground of cruelty. Since

inception it was the husband who was willing to reside with the wife

despite their differences but the wife was not interested in doing so.

When the wife left the matrimonial house initial notice dated

26/09/2009 was issued by the husband which is at Exhibit-19. It

was further submitted that again by executing the samzotapatra at

Exhibit-23 the parties decided to reside together but the wife after

some period did not abide by the statements made therein. He

referred to various complaints filed by the wife against the husband

and his family members which indicated that on one count or the

other the wife was merely interested in harassing the husband and

his family members. Despite attempts of reconciliation it was the

wife who saw to it that the same was not successful. He therefore

submitted that the learned Judge of the Family Court after

considering the entire evidence on record rightly found that the case

for grant of divorce had been made out. In support of his

submissions the learned counsel placed reliance on the decisions in

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the case of Smt. Mayadevi v. Jagdish Prasad AIR 2007 SC 1426 and

Vishwanath Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal AIR

2012 SC 2586. It was thus submitted that both the appeals were

liable to be dismissed.

8. We have heard the learned counsel for the parties. In

the light of the respective submissions the following points arise for

determination:

"A) Whether the husband has proved that he was entitled to grant of divorce on the ground of cruelty under Section 10(1)(x) of the Act of 1869?

B) Whether the wife has proved that the decree for restitution of conjugal rights ought to be passed?

and C) Whether the judgment of the Family Court deserves to be interfered with?"

9. The material on record indicates that after the parties

were married on 24/10/2007, within a short period disputes arose

amongst them especially in the light of the fact that the wife could

not continue residing with the husband and his family members.

She used to leave the matrimonial house time and again after which

the husband was required to bring her back. After the birth of the

daughter on 28/03/2009 the wife again left the matrimonial house.

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She returned back only in June 2009. Thereafter on 09/08/2009 she

again went back to her parents' house and hence on 26/09/2009 the

husband issued a legal notice at Exhibit-19 calling upon her to

resume cohabitation. Thereafter when she returned back on

14/04/2010 a mutual understanding document- Samzotapatra came

to be executed between the parties. The same is at Exhibit-23 and it

has been scribed in Hindi. Its perusal indicates that the wife

undertook to reside with the husband and his grand-mother and

take care of them. Similarly whenever she desired to visit her

parents' house she would do so after informing the husband. In her

cross-examination the wife admitted that after understanding the

contents of the deed at Exhibit-23 it was signed by her. The evidence

on record indicates that even thereafter when the parties started

residing separately there arose disputes and various complaints

were filed by the wife against the husband. One such complaint is at

Exhibit-77. It is also seen that thereafter on 08/03/2015 the parties

started residing in a rented premises but there too on account of

quarrels between them that place was required to be left. The Trial

Court has considered the evidence of Vimalbai at Exhibit-30 who

was residing near the husband's house. It has accepted that evidence

being one of an independent witness. It is after considering the

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entire evidence on record that the Family Court arrived at a

conclusion that the behaviour of the wife of constantly quarrelling

with her husband and lodging reports and complaints resulted in

causing mental harassment to her husband. She was also frequently

leaving the matrimonial house and the husband was required to

take efforts to bring her back.

10. On a re-appreciation of the entire material on record we

find that the evidence led by the parties does not indicate that the

discord between them was on account of normal wear and tear of

marital life. The behaviour of the wife was such that the husband

could not be reasonably accepted to continue to reside with her.

After examining the entire material on record in the light of the ratio

of the decisions relied upon by the learned counsel for both the

parties we find that the learned Judge of the Family Court was

justified in recording the finding that the behavior of the wife was of

such nature that the same resulted in causing mental cruelty to the

husband. The view as taken by the Family Court is after appreciation

of the entire evidence on record and the same cannot be said to be

perverse. That view is a reasonably possible view and we do not find

any justifiable reason to take a different view of the matter. On that

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count the decree for divorce has been rightly passed and

consequently the prayer for restitution of conjugal rights has been

refused. We therefore find that the impugned judgment does not call

for any interference. The points as framed are accordingly answered

by holding that the husband has proved that he is entitled for grant

of divorce on the ground of cruelty under Section 10(1)(x) of the

Act of 1869. Consequently decree for restitution of conjugal rights

cannot be passed.

11. As a result of aforesaid discussion the common

judgment of the Family Court dated 02/05/2017 in Petition No.A-

102 of 2012 and Petition No.A-720 of 2013 stands confirmed. Both

the Family Court Appeals stand dismissed leaving the parties to bear

their own costs.

                        JUDGE                              JUDGE


     R.S. Sahare