Bombay High Court
Smt. Vandana Rajesh Mate vs Shri. Rajesh S/O. Shrinivas Mate on 18 February, 2021
Bench: A.S. Chandurkar, Nitin B. Suryawanshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FAMILY COURT APPEAL (FCA) NO.80 OF 2015
WITH
FAMILY COURT APPEAL (FCA) NO.81 OF 2015
WITH
CRIMINAL REVISION APPLICATION NO.120 OF 2015
FAMILY COURT APPEAL (FCA) NO.80 OF 2015
Smt. Vandana Rajesh Mate,
Aged about 44 years, Occ-Housewife,
R/o In the house of Roshan Meshram
C/o Lokchand Salve, Near Ramteke
Hotel, Balkrushna Mohalla, Indora,
Nagpur. (Org. Respondents
On R.A.)
... APPELLANT
// Versus //
Shri. Rajesh S/o Shrinivas Mate,
Aged about 47 years, Occ. Social
Welfare, R/o Nai Basti, Near
Mangalwari Garden, nagpur (Org. Petitioner
on R.A.)
... RESPONDENT
WITH
FAMILY COURT APPEAL (FCA) NO.81 OF 2015
Smt. Vandana Rajesh Mate,
Aged about 44 years, Occ-Housewife,
R/o In the house of Roshan Meshram
C/o Lokchand Salve, Near Ramteke
Hotel, Balkrushna Mohalla, Indora,
Nagpur. (Org. Petitioner
On R.A.)
... APPELLANT
// Versus //
::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:33 :::
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Shri. Rajesh S/o Shrinivas Mate,
Aged about 47 years, Occ. Social
Welfare, R/o Nai Basti, Near
Mangalwari Garden, nagpur (Org. Respondent
on R.A.)
... RESPONDENT
WITH
CRIMINAL REVISION APPLICATION NO.120 OF 2015
Smt. Vandana Rajesh Mate,
Aged about 44 years, Occ-Housewife,
R/o In the house of Roshan Meshram
C/o Lokchand Salve, Near Ramteke
Hotel, Balkrushna Mohalla, Indora,
Nagpur.
... Petitioner
// Versus //
Shri. Rajesh S/o Shrinivas Mate,
Aged about 47 years, Occ. Social
Welfare, R/o Nai Basti, Near
Mangalwari Garden, Nagpur
... RESPONDENT
-----------------------------------------------------------------------------------------
Shri. Y. B. Mandpe, Advocate for the appellant
Shri. C. G. Barapatre, Advocate for the respondent.
------------------------------------------------------------------------------------------------
CORAM : A. S. CHANDURKAR AND
N. B. SURYAWANSHI, JJ.
RESERVED ON : 18/01/2021
PRONOUNCED ON : 18/02/2021
JUDGMENT (Per :N. B. SURYAWANSHI, J.)
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The present appeals fled by the appellant wife
under Section 19 of the Family Courts Act, 1984 challenge the
common judgment passed by the Family Court, Nagpur in
Petition No.A-365 of 2012 fled by the respondent husband for
divorce. The appellant wife assailing the decision of the Family
Court in Petition No.A-111 of 2013, thereby refusing her petition
for restitution of conjugal rights and by fling Criminal Revision
Application challenge the quantum of maintenance awarded by
the Family Court in Petition No.E-382 of 2012. Since all these
three decisions are given in a matrimonial dispute between the
appellant and the respondent, they are being decided by this
common judgment.
2. Petition No.A-365 of 2012.
The respondent fled this Petition under Section
13(1) (i-a) (i-b) of the Hindu Marriage Act, 1955 (for short, "the
said Act") seeking divorce on the ground of cruelty and
desertion in short contending that, the marriage between the
parties was solemnized on 19.12.2010 as per Buddhist Rites at
Nagpur. On the day of marriage with the wife, husband was
having two daughters namely Susmita and Ishita aged about
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ten years and fve years and an ailing 80 year old Mother. The
husband was a Corporator of Nagpur Municipal Corporation at
the time of marriage. The wife was aware about these facts
prior to the marriage. After marriage, the wife started residing
with the husband at his house near Mangalwari Garaden at
Nagpur. Parents of the wife used to reside at Indora area at
Nagpur. While getting married, the husband was under
impression that the wife would take care of his daughters and
ailing mother, but the wife neglected and refused to do any
household duties towards them. She was in the habit of
frequently visiting her parent's house. Every day, she was
taunting the husband in flthy language. She was beating the
daughters without just and sufcient cause. She did not
provide meals to his daughters and ailing mother. In spite of
understanding given to her by the husband and the elders of
both the families at several times, the behavior of the wife did
not change, she used to threaten him that she will commit
suicide and put him behind the bars. She was having more
afection towards her parents. He was frustrated with the
behavior of the wife. The wife left matrimonial home on
01.09.2011 by giving threats to commit suicide and putting him
behind the bars.
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3. The wife denied all the allegations by fling a written
statement. She averred that she cohabited with the husband
till 14.04.2012. Due to his adamant behavior, the husband
created an unhealthy atmosphere. He was treating her just as
a maid servant, although she was discharging her household
duties. Because of this abnormal behavior, it became unsafe
for her to live with him. Her health deteriorated due to the
continuous ill treatment given to her by the husband and it
gave her mental stress. She was never taken to the Doctor.
The husband neglected her. The husband and his mother
quarreled with the wife and threatened her with life and limb.
Apprehending danger to her life, she had to leave the
matrimonial home on 01.09.2011 and since then, she was living
at the mercy of her parents. She claimed that she was ready to
cohabit with the husband and his divorce petition be dismissed.
Petition No.A-111 of 2013
The wife reiterated the above contentions in Petition
No.A-111 of 2013 fled for restitution of conjugal rights and in
Petition No.E-382 of 2012 fled for maintenance under Section
125 Code of Criminal Procedure, 1973. She further admitted in
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the maintenance petition that the husband used to beat her
mercilessly. Whenever he used to go on tour for his business,
he used to drop her at her parent's house. Due to threats of
life, the wife apprehending danger to her life, was required to
leave the matrimonial home. Since 14.04.2012, she was living
with her parents. She further averred that the husband was
two times Corporator of Nagpur Municipal Corporation and was
having a Kerosene dealership and he also worked as a
Contractor and earns Rs.75,000/- per month. She claimed that
she was unable to earn and it was the husband's responsibility
to maintain her. Hence, she demanded maintenance
@ Rs.30,000/- per month.
The husband has reiterated his pleadings in the
written statement fled in the maintenance Petition No.A-365 of
2012.
4. The learned Family Court after recording the
evidence, decreed the divorce petition fled by the husband by
dissolving the marriage between the husband and wife,
dismissed the petition for restitution of conjugal rights fled by
the wife. The interim order passed in the maintenance
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proceedings, thereby granting maintenance @ Rs.1500/- per
month was confrmed w.e.f. the date of the decision. Being
aggrieved, the appellant wife has fled the present appeals and
criminal revision application.
5. Heard the learned advocate for the appellant and
the respondent.
6. The learned advocate for the appellant submitted
that there is no evidence on record to prove cruelty and that
the Family Court has erred in granting decree of dissolution of
marriage on the ground of cruelty. The allegations of the
respondent that the appellant used to go her maternal home
frequently and she refused to provide food to her mother-in-
law, etc. are vague and of a general nature. There is no proof of
cruelty. There is no material to justify the grant of decree of
divorce in favour of the respondent and for rejecting the prayer
of the appellant for restitution of conjugal rights. He further
submitted that the meager amount of Rs.1500/- per month was
awarded by the Family Court towards maintenance without
considering the price index prevailing at that time. He
therefore urged that the appeals and revision deserve to be
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allowed and the decree of divorce be set aside, the restitution
of conjugal rights may be allowed in favour of the appellant and
maintenance @ Rs.30,000/- per month be granted to the
appellant.
7. In support of his submissions, the learned advocate
for the appellant placed reliance on the ratio in :
a) Kishor s/o. Shamrao Dongre ..Vrs.. Smt. Rohini W/o.
Kishor Dongre, 2018(4) ALL MR 667
b) Vishnu S/o. Babanrao Yadav ..Vrs.. Nalini W/o. Vishnu
Yadav, 2018(6) ALL MR 629
8. Per contra, the learned advocate for the respondent
strenuously supported the judgment of the Family Court by
contending that the behavior of the appellant spells out cruelty
and the learned Family Court was justifed in granting the
decree in favour of the respondent. Resultantly, the petition for
restitution of conjugal rights was required to be dismissed. He
further submitted that no evidence is brought on record by the
appellant to prove the income of the respondent. In view of
that matter, the Family Court was justifed in awarding
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maintenance @ Rs.1500/- per month to the appellant, which
was reasonable.
9. Heard learned advocate for the parties at length. We
have gone through the record. After hearing the rival
submissions, following points arise for determination :
i) Whether the order of the Family Court
granting divorce in favour of the respondent is
legally correct ?
ii) Whether the appellant is entitled for the
decree of restitution of conjugal rights ?
iii) Whether the quantum of maintenance
awarded by the Family Court to the appellant
requires interference ?
iv) What order ?
10. To decide the controversy, it is necessary to consider
the evidence on record.
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11. The wife fled her afdavit in lieu of evidence at Exh-
13 in maintenance petition and at Exh-17 petition for restitution
of conjugal rights. The wife did not lead separate evidence in
divorce petition and the husband did not lead separate
evidence in maintenance proceedings and in restitution of
conjugal rights petition. The learned Family Court, therefore,
passed an order to read the evidence adduced by both the
parties in all these three petitions.
12. The wife in her evidence deposed in terms of the
pleadings in restitution and maintenance proceedings. In cross-
examination except giving suggestions which she has denied
nothing damaging the case of the wife could be brought on
record by the husband. She denied that she was frequently
visiting her parent's house. She further admitted that once
when she was going to the parent's house by Auto, her golden
chain went missing. She did not lodge any complaint regarding
it as the husband did not allow her to lodge the complaint. She
admitted that, her old mother-in-law was always sick and
required medical expenses. Except this, there is nothing in
cross-examination of the wife, which would help the case of the
husband.
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13. In the maintenance proceedings, the wife fled
afdavit in lieu of evidence in terms of the contentions raised in
the maintenance petition. She was already cross-examined in
the restitution petition and also in respect of maintenance
proceedings.
14. The husband fled an afdavit of evidence at Exh-17
in terms of the pleadings in his divorce petition. In cross-
examination the husband admitted that, he did not send any
notice to the wife before fling the divorce petition. He did not
attempt to fetch his wife through any other institution. He
claimed that he was working with the building material supplier
Mr. Dhananjay Thakre as a supervisor and that he was in a
position to produce the document to that efect. He was called
upon to produce the document of his employment. According
to him, he was not required to go out of Nagpur when he was a
Corporator, but at the time of deposition, he used to go out of
Nagpur if there was some work. He further admitted that he
never reported the wife's cruelty towards him to the Police. He
also did not complain about the wife's behavior of not giving
medicine and food to his mother. He denied that he used to
harass the wife and he drove her out of the matrimonial home.
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He deposed that even if the wife was ready to cohabit with him,
he was not ready to take her along. He denied the rest of the
suggestions with respect to his income and about the property
held by him through benami transactions.
15. On careful scrutiny of the evidence brought on
record by the parties, it is clear that there is no evidence
presented by the respondent to prove the cruelty of the
appellant. The allegations of the respondent about the
behavior of the appellant are of general nature and vague. The
allegations that the appellant was in the habit of frequently
visiting her parent's house and that she was neglecting the
respondent's mother and daughters are not proved by the
respondent. The respondent has admitted that he did not issue
any notice to the appellant. He also did not attempt to fetch
her through any other institution, before fling of petition. He
admitted that he did not complain to anybody about the
behavior of the appellant of not giving food and medicine to his
ailing mother. His further admission that even if the appellant
is ready to cohabit with him, he was not willing to take her
along, shows his adamant and unreasonable approach. These
allegations apart from the fact that they are of general nature,
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they can be said to be outcome of normal wear and tear of the
married life, but they defnitely fall short of proving any cruelty
on the part of the appellant.
16. In Savitri Pandey ...Vrs... Prem Chandra Pandey, AIR
2002 SC 591, the Hon'ble Supreme Court held :
"Mental cruelty is the conduct of the other spouse
which causes mental sufering or fear to the
matrimonial life of the other. "Cruelty", therefore,
postulates of a treatment of the petitioner with such
cruelty as to cause a reasonable apprehension in his or
her mind that it would be harmful or injurious for the
petitioner to live with the other party. Cruelty, however,
has to be distinguished from the ordinary wear and tear
of family life. It cannot be decided on the basis of the
sensitivity of the petitioner and has to be adjudged on
the basis of the course of conduct which would, in
general, be dangerous for a spouse to live with the
other".
If we apply this ratio to the facts of the present
case, it is clear that there is no iota of evidence brought on
record by the respondent to prove cruelty as contemplated
under Section 13(1) (i-a) of the said Act. There is no
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material on record which spells out the cruelty on the part of
the appellant. The respondent failed to prove that the
conduct of the appellant for a long time caused feelings of
deep anguish, disappointment and frustration in the
respondent and her such conduct actually afected the
physical and mental health of the respondent. No evidence
was led by the respondent for proving these aspects
showing cruelty in the conduct of the appellant .
17. In Samar Ghosh ..Vrs.. Jaya Ghosh , (2007) SCC 511,
the Hon'ble Supreme Court explained the nature and scope
of mental cruelty as the ground for divorce by holding
that :
"101. No uniform standard can ever be
laid down for guidance, yet we deem it appropriate
to enumerate some instances of human behaviour
which may be relevant in dealing with the cases of
"mental cruelty". The instances indicated in the
succeeding paragraphs are only illustrative and not
exhaustive :
iv) Mental cruelty is a state of mind. The feeling
of deep anguish, disappointment, frustration in one
spouse caused by the conduct of other for a long
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time may lead to mental cruelty.
vi) Sustained unjustifable conduct and behavior
of one spouse actually afecting physical and
mental health of the other spouse. The treatment
complained of and the resultant danger or
apprehension must be very grave, substantial and
weighty."
Applying this ratio to the facts of the present case, it
is explicitly clear that the respondent has failed to make out a
specifc case that any particular conduct of the appellant
amounted to cruelty. No evidence was brought on record by
the respondent to show that the conduct of the appellant falls
within the instances enumerated in this decision.
18. The learned advocate for the appellant was justifed
in relying upon the ratio in Vishnu Babanrao Yadav (supra)
wherein it is held :
"18. From the perusal of entire evidence placed
on record, we are of the considered view that the
allegations made by the Appellant against
Respondent regarding cruelty are too vague and
general. A decree of divorce on the ground of
cruelty cannot be granted on the basis of general
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allegations levelled by the husband against the
wife, without clearly mentioning the manner in
which the wife has ill-treated the husband. General
allegations that the wife used to avoid the husband
and his family members and that she used to often
visit her parental house and was not preparing
food for the husband, was not opening the door of
the house after his return to home, cannot
constitute cruelty."
The above ratio is laid down in somewhat similar
facts and the same is squarely applicable to the facts of the
present case. The ratio in Kishor Shamrao Dongre (supra) also
supports the case of the appellant.
In the light of the observations of the Hon'ble
Supreme Court and this Court quoted herein above, in our
considered view, the respondent had failed to make out any
case for grant of decree of divorce in his favour on the ground
of cruelty. The allegations of the respondent about the conduct
of the appellant are of general nature and they at the most can
be termed as normal wear and tear of married life.
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19. The learned Family Court has recorded the following
fndings :
That, the appellant got fed up of maintaining the
husband, his ailing old mother and both the children and
therefore, she left the matrimonial home, that there does not
appear any cruelty on the husband's part towards the wife due
to which she was constrained to leave him, that the appellant
has not adduced evidence any to show that the respondent was
not allowing her to talk with the neighbor, that the appellant
has failed to bring on record any such business of the
respondent for which he used to go on business tours, that the
possibility cannot be ruled out that because of such lazy
behavior of the appellant, the respondent must have asked her
for the reasons (of losing chain) and then to avoid it, she left
her matrimonial home on 01.09.2011 and that the appellant
failed to discharge her duty towards the Family and hence, such
defciency can certainly entail sort cruelty to husband.
20. According to us, these fndings are contrary to the
evidence on record and based on surmises and conjectures.
Unwarranted inferences are drawn by the learned Family Court
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while recording the above fndings. These fndings are not
supported by proper reasons.
21. In absence of any evidence on record to prove the
cruelty of such a degree as contemplated by catena of the
decisions of this Court as well as of the Hon'ble Supreme Court,
the learned Family Court was not justifed in ignoring the said
law and the meaning of cruelty explained in them. Since the
fndings of the learned Family Court are contrary to the
evidence on record, they are unsustainable. In our considered
view, the learned Family Court has recorded perverse fndings
and the common impugned judgment of the learned Family
Court in Petition Nos.A-365/2012, E-382/2012 and A-111/2013 is
unsustainable and the same is liable to be set aside. The point
no. i, is answered accordingly.
22. For the aforestated reasons, since we have come to
the conclusion that the decree of divorce granted in favour of
the respondent is unsustainable, for the same reasons and
taking into consideration the fact that the appellant has shown
her willingness to go for cohabitation with the respondent, the
fact that before fling petition for divorce, the respondent did
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not make any attempts to fetch the appellant back, his
categorical admission that even if the appellant is ready to
cohabit with him, he is not ready to do so, he did not issue any
notice to her, the wife is entitled for releif. We are of the
considered view that the appellant has made out a case for
grant of decree for restitution of conjugal rights in her favour.
We answer the point no. ii accordingly.
23. So far as the maintenance proceedings is concerned,
the neglect and refusal on the part of the respondent is proved
by the appellant. The respondent has admitted in his evidence
that he was Corporator of Nagpur Municipal Corporation for two
terms. He claimed that he was working as a supervisor with
the building material supplier Mr. Dhananjay Thakre. Though
he was called upon to produce document in respect of his
employment, he has not fled the same, therefore, adverse
interference needs to be drawn against him. Since the said fact
was within special knowledge of the respondent, he was
expected to bring evidence on record about his income. Though
the appellant has claimed that the respondent is doing a
kerosene business, she could not bring any evidence on record
to prove the same. The learned Family Court has awarded
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maintenance @ Rs.1500/- per month from the date of order.
The interim maintenance at that rate was granted to the
appellant, according to us, the said amount is grossly
inadequate to maintain a lady. Taking into consideration the
rising price index, the status of the parties, we are of the
opinion that the appellant is entitled for maintenance @
Rs.5,000/- per month from the date of her maintenance
application i.e. from 18.09.2012. The learned Family Court
without assigning any reason has erroneously proceeded to
award maintenance to the appellant from the date of order.
There is nothing on record to show that the proceedings were
prolonged at the behest of the appellant. In that view the
Family Court ought to have allowed the maintenance to the
appellant from the date of application. We fnd that the said
decision is also contrary to the ratio of latest decision of the
Hon'ble Supreme Court in Rajnesh ..Vrs.. Neha and others,
2020(13) SCALE 29, wherein it has laid down the guidelines
to be followed in the matter of the maintenance and has
mandated that the maintenance should be awarded from the
date of fling of the application.
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24. For the aforestated reasons, we pass the following
order :
1) The Family Court Appeal No.80 of 2015 and Family
Court Appeal No.81 of 2015 are allowed.
2) The judgment and decree passed by the Family
Court in Petition No. A-111 of 2013 is set aside and the petition
fled by the wife seeking a decree of restitution of conjugal
rights is allowed and a decree of restitution of conjugal rights is
issued in her favour.
3) The judgment and decree passed by the Family
Court in Petition No.A-365 of 2012 is set aside and the petition
fled by the respondent is dismissed.
4) The Criminal Revision Application No.120 of 2015 is
allowed by modifying the judgment of the Family Court in
Petition No.E-382 of 2012 to the efect that the revision
petitioner wife is held entitled for maintenance @ Rs.5,000/-
per month which shall be paid to her from the date of fling of
maintenance petition i.e. from 13.04.2012.
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5) The arrears of maintenance shall be deposited by
the respondent within a period of eight weeks from today.
JUDGE JUDGE
TAMBE
