Smt.Sadhana W/O Hemant Walwatkar vs Shri Hemant S/Io Shalikramji ...
2021 Latest Caselaw 3205 Bom

                                                   1              Jg-FCA-89-2014.odt


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

      FAMILY COURT APPEAL (FCA) NO. 89 OF 2014

Smt. Sadhana w/o Hemant Walwatkar
aged about 30 years, Occu:- Houswife
R/o Near K.D.K. College c/o her father
Shri. Nagoraoji Hiwarkar Plot No.369
Darshan Colony, Nandanvan Nagpur
                                                                   ... Appellant
        // Versus //
Shri. Hemant s/o Shalikramji Walwatkar
Aged about 35 years, Occu :- Service
R/o Plot No. 6, Gorewada Road Utthan
Nagar, Nagpur
                                                             ... Respondent
-----------------------------------------------------------------------------------
Ms. Amruta Ghonge, Advocate for the appellant
Shri R. N. Sen, Advocate for the respondent-Sole
-------------------------------------------------------------------------------------------
                CORAM                   :        A. S. CHANDURKAR AND
                                                 N. B. SURYAWANSHI, JJ.

                RESERVED ON :                            14/01/2021

                PRONOUNCED ON :                          18/02/2021


JUDGMENT (Per : N. B. SURYAWANSHI, J.)

This appeal fled under Section 19(1) of the

Family Courts Act, 1984 by the appellant wife takes

exception to the judgment passed by the Family Court,

Nagpur in Hindu Marriage Petition No.A-410 of 2004,

thereby passing a decree of dissolution of marriage of the

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appellant wife and the respondent husband.

2. Facts, in brief, leading to this appeal are as follows:

The husband fled Petition No.A-410 of 2004

under Section 9 of the Hindu Marriage Act, 1955 for

restitution of conjugal rights in short contending that, the

marriage between the wife Sadhana and the husband

Hemant was solemnized on 15.07.1999 as per Hindu rites

and customs at Nagpur and out of the wedlock, son Piyush

was born on 25.05.2000. After the marriage, the wife came

for cohabitation at the house of the husband. However, she

insisted that the husband should stay separately from his

parents. After residing for about 21/2 months at matrimonial

home, the wife went to her maternal home along with her

father and returned back to matrimonial home after about a

month. After 15 days, the wife's father came back and took

her to the maternal home without informing the husband

and without his consent . The wife stayed at her maternal

home for about eight months. The husband therefore

approached Apad Grast Mahila Kendra, Koradi and lodged a

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complaint. After the intervention of elderly persons and

Apad Grast Mahila Kendra, the wife came back to the

husband's house after executing a Bond to live properly

with the husband on 26.08.2000. After a few days, the wife

again started demanding for living separately. The husband

agreed to that and started living separately in a rented

house, where they lived together for more than three years.

Because of the strange behavior of the wife, the husband

was required to change the rented premises 3 to 4 times.

The wife used to say that a particular rented house was not

good. The wife used to frequently go to her parent's house.

When the husband objected to that, the wife used to quarrel

with him. She used to quarrel with him on petty things. On

27.09.2001, the wife's father came at the rented premises

of the husband and told the wife that the rented

accommodation was not sufcient and asked her to shift to

his house along with the household goods. He also

threatened the husband to shift to his house along with the

household goods, else he will carry him and the household

goods by bringing 2 to 4 people. According to the husband,

he fell ill due to such harassment and was required to be

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admitted in Lata Mangeshkar Hospital, Nagpur on

03.09.2001. He lodged a report about the threats given by

the wife's father, which was registered for ofence

punishable under Section 506 of the Indian Penal Code. The

husband earlier also had lodged a complaint against the

wife for leaving his house without intimation and consent.

The husband had also lodged a complaint against the

brother of the wife namely Prakash Nagorao Hiwarkar and

her father for threatening him with dire consequences. On

18.02.2000, a complaint was also lodged against the father

and brother of the wife for assaulting the husband and

threatening and abusing him and his parents. It is further

contended that when the wife went to her parent's house on

22.12.1999, she took away all the gold ornaments i.e.

Mangalsutra, Golden chain, Finger ring, Ear ring and Cash of

Rs.5,000/-. Accordingly, the husband lodged a police report

in that behalf on 29.09.2001 at Gittikhadan Police Station.

The wife had developed a habit of leaving the house of the

husband as per her wish and lastly on 04.07.2004, she left

the house of the husband along with son Piyush and went to

her parent's house. On the next day, the husband went to

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the wife's maternal home and brought back son Piyush.

However, son Piyush was again taken back by the wife on

08.07.2004. Though the husband tried to bring back the

wife, she refused. Hence, the husband sent a legal notice

on 09.07.2004 and called upon the wife to come back within

10 days from the date of receipt of notice. The wife replied

the said notice levelling wild and false allegations of ill

treatment and demand of dowry against the husband and

claimed maintenance of Rs.1,500/- each for herself and for

son Piyush. On these pleadings, the husband prayed for

decree of restitution of conjugal rights.

3. During the pendency of the said petition, a

compromise was arrived at before the Lok Adalat and

compromise terms were fled at Exh-19, whereby the

husband and the wife decided to live together on

experimental basis. The consent terms were executed. In

terms of the compromise, the wife went for cohabitation to

the husband. During cohabitation, a girl child Janavi was

born on 23.06.2006.

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4. On 27.10.2005, the husband fled a pursis at

Exh-21 before the Family Court alleging therein that in view

of a settlement in Lok Adalat, he took the wife to his

residence for stay and cohabitation. However, there was no

change in the behavior of the wife. She was not

cooperating with the husband and his family members. She

was giving threats to all the family members including the

husband to implicate them in false criminal case. Due to

these circumstances, life of the husband and his family

members had become miserable.

5. Record further reveals that when the wife

conceived at the time of daughter, she was advised to go to

her parent's house for delivery. Accordingly, order to that

efect was passed by the Family Court on 13.04.2006 at

Exh-1. The husband agreed to pay an amount of Rs.750/-

per month for maintenance till the delivery and to pay an

amount of Rs.2,000/- for delivery expenses.

6. The husband moved an application Exh-25

seeking amendment to the petition alleging cruelty on the

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part of the wife. In the application, it was contended that

after the delivery of girl child, the wife came back to the

matrimonial home. Thereafter, she started harassing the

husband and his family members. She was provided two

rooms for her stay. She used to cook food for herself and

did not provide food to the husband. On 18.11.2006, the

wife went to the kitchen of her mother-in-law and opened

the connection of cooking gas and cut down the rubber pipe

of gas. After smelling the gas, the mother-in-law rushed to

the kitchen and put of the gas connection. A complaint to

that efect was lodged by the mother-in-law. The wife

quarreled with the husband and his mother on 30.12.2006

and had beaten both of them. Complaint in that behalf was

lodged by the husband on 30.12.2006. The wife went to her

parent's house on 31.12.2006 and since then was staying

with her parents without permission and consent of the

husband. The husband therefore claimed that due to the

cruel behavior and harassment on the part of the wife, it

had become difcult for him to stay with her and therefore

he wanted to amend the petition seeking decree of divorce

and dissolution of marriage.

8 Jg-FCA-89-2014.odt

7. The wife resisted the amendment application

Exh-25 by fling reply at Exh-28. She denied all the

contentions in the amendment application and stated that

though she was taken back after the settlement, she was

made to stay in two separate rooms, wherein there was no

ventilation and sun light. The family members of the

husband were practically practicing untouchability against

her. She was not given food, etc. She was treated like a

slave. Her son Piyush was not permitted to meet her. She

was not allowed to enter the family kitchen. The separate

room wherein she was required to cook food, was without

door panels. The husband wanted to get rid of the wife and

the girl child. The wife was humiliated, harassed and

subjected to domestic violence and she was driven out of

the house. When she gave complaint to the Police for

ofence punishable under Section 498-A of the Indian Penal

Code and when the Police were about to register ofence,

the petition for restitution of conjugal rights was fled by the

husband. The amendment sought by the husband was

totally changing the nature of the proceedings, and

therefore, the amendment ought not to be allowed in view

9 Jg-FCA-89-2014.odt

of bar under Order 6 Rule 17. The wife therefore strongly

opposed the amendment application and prayed for its

dismissal. The Family Court allowed the amendment

application vide order dated 27.02.2007, which reads thus :

                            "The    petitioner   only     wants         to
          substitute the prayer clause.          He is entitled to

make such prayer on same facts. Hence, the petitioner is allowed to amend his petition's prayer clause".

Accordingly, the husband amended the cause

title and the prayer clause.

8. The wife by fling an application at Exh-32 sought

permission to adopt the reply fled by her to the application

for amendment as the written statement to the amended

petition, which was allowed by the Family Court vide order

dated 06.07.2007.

9. The husband examined himself by fling afdavit

in lieu of his evidence which was a replica of his pleadings in

the petition. He also deposed that during the pendency of

the petition for restitution, a settlement was arrived in Lok

10 Jg-FCA-89-2014.odt

Nyayalaya on 09.07.2005 as per Exh-19. However, after

joining the company, the behavior of the wife did not

change. She used to quarrel with the husband and his

parents on one count or another and used to abuse in flthy

language. During the stay with the husband, the wife

conceived and delivered a girl child. The husband bore

delivery expenses and maintenance during the stay of the

wife with her parents. During her stay, the wife ignored

understanding given to her by the Family Court and she

continued her harassment and cruel treatment towards the

husband. Therefore, the husband had no option but to

amend the petition for seeking a decree of divorce. He

therefore sought a decree of divorce. He admitted in cross-

examination that soon after marriage, the wife and the

husband resided along with his parents for three months

and thereafter they lived separately in a rented house. He

admitted that since the beginning, the wife wanted to live

separately from his parents and she had no other demand.

He also admitted that he and the wife had diferences

before the settlement. He denied that even on the day of

deposition, they were having diferences. He stated that

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the wife was not behaving properly with him, his son and his

parents. She was not cooking properly as per his liking,

therefore the husband asked her to live separately in

another room. He stated that being his wife, she could live

in his house. He denied the suggestion that the wife never

harassed him and he drove her out of the house.

10. Suman Walwatkar mother of the husband was

examined by the husband, who deposed that after the

marriage, the wife and the husband lived with them for

about 2 to 3 months. She did not know where they were

staying after separation. They returned to her house after

four years. Even after her return, the wife's behavior was

not proper. The wife was abusing her in flthy language.

Her main grievance against the wife was that she was not

doing the household work properly. According to this witness

after returning back for about 15 days the wife behaved

properly, thereafter she started cooking for herself. In the

cross-examination she admitted that she had no knowledge

about the harassment or ill treatment to the husband from

the wife and since last three years, the wife had not

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interfered in her family. She also admitted that she never

interfered in the relations between the husband and the

wife and during the last three years, she did not enter their

room.

11. The husband also examined his father in support

of his case. He deposed about the frequent visits of the wife

to her parent's house and her staying there for months

together. That the behavior of the wife was bad. She used

to quarrel with his wife Suman and used to abuse her. The

wife was not doing any household work and she was

cooking food for herself and not for the family members.

His wife Suman was required to do all the household work.

The wife stayed with the husband during the pendency of

petition for restitution of conjugal rights and the girl child

was born on 23.06.2006. The husband bore all the medical

expenses of delivery. In the cross-examination he admitted

that the wife never misbehaved with him. He and his wife

never called the husband and the wife for living with them.

He admitted that the husband and the wife were living

separately in a room of his house along with daughter Janavi

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and son Piyush was living with him and his wife. He stated

that he did not keep the infant daughter with him because

of the wife's behavior. He further deposed that he had no

objection with the husband and the wife living in his house

provided they live properly.

12. The wife fled her afdavit in lieu of evidence

reiterating the contentions in her written statement. In the

cross-examination she deposed that after the marriage, she

lived with her in-laws for 5 to 6 months and thereafter she

went to her parent's house for delivery, where she stayed

for eight months. After the delivery, when the wife returned

back to her matrimonial home, she lived there for about 2 to

3 months and thereafter they started living separately from

her in-laws. She and her husband lived in a rented house

for about three years and thereafter again they started

living with in-laws. She denied that when they were living

separately, her relations with in-laws were good. According

to her, she returned to in-laws house with an intention to

live separately in their house so that she could spend the

house rent for the household expenses. She admitted that

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on 22.12.1999, her father had come to her matrimonial

home and she went along with him and she stayed there for

eight months. She admitted that the husband had lodged a

complaint with Apad Grast Mahila Kendra, Koradi and after

counselling, they both decided to live together. She

admitted the settlement memo (Exh-50). She admitted that

after settlement, she asked him to live separately from his

parents. She also admitted that before the settlement, she

had stayed with her parents for about one year. She denied

that the husband came to take her back on several

occasions. She stated that her uncle made an attempt to

reach her back. She denied that she had breached the said

settlement. She admitted the birth of daughter Janavi after

settlement. She also admitted that after a settlement for

some period, the husband and his parents treated her

nicely. She admitted that she was given understanding by

everybody that she should live happily with her in-laws and

that there was no change in her behavior. She volunteered

that her in-laws were not behaving in proper manner,

therefore, she had to behave like that. She further deposed

that at the time of deposition, she was living in two small

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rooms and the husband was residing with his parents. She

admitted that there had been no cohabitation between her

and the husband since 2005. She stated that there were

two doors and two windows to her block. She also admitted

that she had not fled any document in respect of her

complaint under Section 498-A of the Indian Penal Code.

She admitted that portion marked "A" in her afdavit of

evidence was incorrect. Similarly, she also admitted that

the statement in the afdavit portion marked "B" to the

efect that "her in-laws observed untouchability towards her

and that she was not allowed to enter in the kitchen, middle

room or the place where the deity was kept" was incorrect.

She also admitted that statement in her afdavit portion

marked "C" that "she lodged a complaint against the

husband and in-laws at Gittikhadan, Police Station under

Section 498-A, which was registered by the Police and when

the Police were about to arrest them, they assured the

Police that they will settle the matter and the wife would be

taken back" was incorrect. She also admitted that during

the pendency of the proceedings, she had given birth to a

female child and that she was advised to go to her parent's

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house for delivery and the husband was asked to pay

maintenance for two months. It was also admitted that in

spite of Court's directions, she did not go to her parent's

house for about one month. According to her, the husband

only paid her delivery expenses of Rs.2,000/-. She denied

the suggestion that inspite of understanding given to her,

her behavior did not change and she made false allegations

against the husband. She stated that the husband was not

providing medicines and clothes to her and she used to go

to her parent's house whenever she was sick. She had no

other alternative and she was staying in the husband's

house inspite of the fact that he was not providing her

anything. She stated that she was not ready to live with her

parents. She admitted that she had asked the husband to

pay her some amount and thereafter she would give him

divorce. She volunteered that she had said so because the

husband asked her to leave the house. She stated that

even if the husband was ready to pay her a reasonable

amount of permanent maintenance, she was not ready for

divorce. She also admitted that since the birth of their

daughter, they had no physical relations as husband and

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wife.

13. The wife's father Nagorao was examined in

support of her case, he stated that he was on visiting terms

with the husband prior to 2 to 3 years. The husband and his

parents used to quarrel with the wife. The husband wanted

that the wife should leave his house and therefore he used

to harass her. He could not tell the reason, why the

husband wanted to drive the wife out ? When he talked to

the husband and his parents, they pointed out mistakes of

the wife. In the year 2000, there was a quarrel between the

wife and the husband and his parents and the wife came to

him and she wanted to lodge a report. However, he did not

allow her and he personally lodged a report. Thereafter, he

did not know what happened to the said complaint. The

wife and the husband lived separately from the husband's

parents for about 5 to 6 years. Thereafter, they were living

in the same house. Since the beginning, the relations

between the wife and her in-laws were not normal. He

further stated that since the last three years, he was not

visiting the husband's house. He did not feel that the wife

18 Jg-FCA-89-2014.odt

and the husband should take divorce. In the cross, he

admitted that after their quarrels, the wife used to come to

his house and used to stay there for about a week. He

admitted that on 22.12.1999, the wife came to his house

and stayed there for eight months. He denied that he did

not make any eforts to reach the wife back during that

period. He admitted that the husband's parents and some

elderly persons had come to take the wife. According to

him, she had gone back with them. He denied that on

27.01.2001, she had gone to the husband's house and

picked up a quarrel with his parents and threatened them.

He admitted that on 04.07.2001, the wife had come to his

house, but denied that since then she was staying with him

till the date of fling of the petition. He admitted that the

husband paid Rs.2,000/- towards delivery expenses of the

wife. He stated that the husband did not pay maintenance

of Rs.750/- per month to the wife. He admitted that the wife

is living with her husband and he was maintaining her.

14. The Family Court after recording the evidence

allowed the petition fled by the husband on both the

19 Jg-FCA-89-2014.odt

grounds i.e. cruelty and desertion and dissolved the

marriage of the husband and the wife by granting decree of

divorce. Hence, the wife has fled the present appeal.

15. Heard the learned advocate for the appellant wife

and the learned advocate for the respondent husband.

16. The learned advocate for the appellant wife

submitted that the general allegations of cruelty were

leveled by the husband in the petition fled under Section 9

for restitution of conjugal rights. The said acts were

condoned in view of the settlement. Therefore, cruelty only

after resumption of cohabitation could have been taken into

consideration by the Family Court. It is submitted that only

cause title and the prayer was amended and the decree of

divorce was sought on the ground of cruelty. However, the

pleadings were not amended. In absence of pleadings and

the evidence of cruelty of the post cohabitation period after

the settlement, the Family Court was not justifed in

granting decree of divorce. There was no material on record

to justify the grant of decree of divorce. Further submission

20 Jg-FCA-89-2014.odt

is that the pursis at Exh-21 was fled by the husband on the

sly, no opportunity was given to the wife to rebut the said

allegations, even no question in that behalf was asked to

the wife in cross-examination. She urged that there is total

non application of mind on the part of the learned Family

Court in allowing the petition and granting divorce. Hence,

the impugned judgment and decree passed by the Family

Court is liable to be quashed and set aside. In support of

submissions, the learned advocate for the appellant has

placed reliance on the following judgments.

i) Uttara Pravin Thool...Vrs... Pravin Anurag Thool, 2014(2) Mh.L.J. 321

ii) Dr. N. G. Dastane ..Vrs.. N. Dastane, 1975(2) SCC

iii) Suman Singh ...vrs... Sanjay Singh, 2017(4) SCC

iv) J. ...Vrs.. JC, 2019 SCC online Del 7703

v) Anil Singh ...vrs... Arti Rani, 2013 SCC Online Del

17. On the other hand, the learned advocate for the

respondent husband supported the decision of the Family

21 Jg-FCA-89-2014.odt

Court contending that the respondent by leading cogent

evidence proved the cruelty of the wife and the Family Court

has passed a well reasoned order. He referred to the

evidence on record to urge that there was material on

record to indicate the cruel acts of the appellant. He

therefore contended that no case is made out by the wife to

interfere in the judgment of the Family Court, hence the

Family Court appeal deserves to be dismissed.

18. We have heard the submissions of the learned

advocates representing the parties at length and perused

the record. On hearing the rival contentions, following point

arises for adjudication :

Whether the decision of the learned Family Court in passing the decree of divorce in favour of the respondent on the ground of cruelty is legal and proper ?

19. Admittedly, after solemnization of marriage on

15.07.1999, son Piyush was born on 02.02.2000. Thereafter

diferences arose between the appellant and the

respondent. The respondent initially fled Petition No. A-410

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of 2004 on 27.07.2004 under Section 9 for restitution of

conjugal rights. During the pendency of the proceedings for

restitution of conjugal rights, a settlement (Exh-19) was

arrived, thereby the appellant and the respondent decided

to stay together on experimental basis. Accordingly, the

appellant and the respondent resided together and during

their cohabitation, daughter Janavi was born on 23.06.2006.

The delivery took place at the parental house of the

appellant under the orders of Court. The respondent, while

the appellant was staying with him after the settlement,

fled pursis Exh-21 on the sly, stating therein that there was

no change in the behavior of the appellant and she was not

cooperating with the respondent and his family members

and that she was threatening the family members to

implicate them in false case. It appears from the record

that the appellant was not given any opportunity to respond

to the pursis (Exh-21).

20. The respondent thereafter fled application Exh-

25 on 15.01.2007 seeking amendment to the pleadings and

prayer of his petition fled for restitution, thereby amending

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it to claim decree of divorce and dissolution of marriage.

The said application though was resisted by the appellant,

was allowed by the Family Court vide order dated

27.02.2007. In the order, it was specifcally recorded that

the respondent only wanted to substitute the prayer clause

and that he was entitled to make such prayer on same

facts. In pursuance of the orders, the respondent amended

the cause title viz : "PETITION UNDER SECTION 13(1) (i) OF

THE HINDU MARRIAGE ACT, 1955 FOR GRANT OF DECREE

OF DIVORCE" and the prayer clause was amended by

adding following prayer :

"It is therefore most respectfully prayed that this Hon'ble Court may be pleased to pass a decree of divorce in favour of the petitioner dissolving the marriage solemnized on 15.07.1999 between the petitioner and the respondent in the interest of justice."

It is pertinent to note here that the respondent

did not amend the pleadings of the petition fled for

restitution of conjugal rights and he prayed for decree of

divorce on the basis of the same pleadings, which were

made by him in the petition fled for restitution of conjugal

24 Jg-FCA-89-2014.odt

rights.

21. It is also an admitted fact on record that in terms

of settlement before the Lok Adalat, the appellant and the

respondent executed the settlement deed (Exh-19) and

started cohabitation. During the cohabitation, daughter

Janavi was born. In view of the cohabitation between the

appellant and the respondent in terms of settlement, the

respondent had condoned the acts of cruelty alleged by him

at the time of fling of petition for restitution of conjugal

rights, in terms of Section 23(1)(b) of the said Act. On the

point of the condonation, the learned advocate for the

appellant rightly relied upon the ratio in Uttara Praveen

Thool (supra). The said decision is authored by one of us

(Hon'ble Shri. A. S. Chandurkar, J.) wherein after taking into

consideration the provisions of Section 23(1)(b) of the said

Act and the ratio of the Hon'ble Apex Court in Dr. N. G.

Dastane (supra) and various High Courts, this Court held :

"22. Thus, to constitute condonation in terms of Section 23(1)(b) of the said Act, there must be forgiveness and restoration. The question, however, is whether for constituting condonation, the conduct

25 Jg-FCA-89-2014.odt

of only one of the parties is to be considered or whether the conduct of both parties is to be taken into account. In other words, whether the unilateral act of one of the parties is to be considered or whether the bilateral acts of both the parties are to be considered. If for constituting condonation, there must be forgiveness and restoration, it is obvious that bilateral acts of both parties will be required to be taken into account while considering the aspect of condonation. Forgiveness and restoration cannot be unilateral and for it to be efective and fruitful, it has to be bilateral. One party to the marital tie may be ready to forgive and restore the same. One of the modes could be by fling proceedings for restitution of conjugal rights. The other party may, however, not be ready to forgive and restore said tie. The proceedings fled by one party for restitution could be opposed by the other by refusing to rejoin the marital tie. The same would not result in condonation in as much as there would be no consensus between the parties for the purposes of forgiveness and restoration. It would remain one-sided. Hence, the aspect of condonation will have to be adjudicated after taking into account the bilateral acts of both parties. The ofer made by one party and the reciprocal conduct of the other will have to be viewed together while determining condonation in terms of Section 23(1)(b) of the Said Act.

26 Jg-FCA-89-2014.odt

What we can gather from the above precedents is that condonation implies knowledge to the husband of being wronged by wife, conscious election by him not to exercise the legal right fowing therefrom, to forgive the wife conditionally and the same resulting in the resumption of normal relationship between the couple. Thus, it is resumption of normal marital ties with mutual understanding which assumes signifcance. In matter like one at hand, where the desertion continues without even a day's break, the conditional forgiveness ofered by the husband is not reciprocated by the respondent wife. On the contrary, she refuses to take advantage of the opportunity available and persists in desertion. As such, condonation which technically is a bilateral act or decision, never occurred and insistence upon the said aspect by the appellant wife is misconceived and ill advised."

If we apply this ratio to the facts of the present

case, it is obvious that the respondent had forgiven the

appellant wife and resumed normal relationship and

cohabitation and during that period, daughter Janavi was

born. There are no pleadings to indicate any act of cruelty

after the birth of the second child on 23.06.2006.

Therefore, the ground of cruelty was not available to the

27 Jg-FCA-89-2014.odt

respondent, in absence of amendment in the pleadings

about the cruelty on the part of the appellant during the

period of cohabitation after settlement and proof of the

cruelty for that period.

22. The fndings recorded and the conclusions drawn

by the Family Court are not based on the pleadings and

evidence of the parties. The Family Court has observed that

"even after re-conciliation according to the respondent, the

appellant continued to live in separate room and continued

to quarrel with the respondent and his parents ." It was also

observed that "during the period of re-conciliation, both the

parties regularly attended the Court and the Family Court

had an opportunity to observe the respondent's (wife's)

attitude, nature and behavior, it will not be out of place to

mention here that, the diferences between the parties were

on account of respondent's adamant nature." It is further

observed that "even during re-conciliation, there were

diferences and disputes between the parties on account of

the appellant's behavior and she was not ready to change

the behavior." These observations of the Family Court

28 Jg-FCA-89-2014.odt

according to us are unwarranted and uncalled for. The

Family Court has recorded these fndings on the basis of

surmises and conjectures, assumptions and presumptions.

The learned Family Court has erred in recording the above

fndings without assigning cogent reasons in support of

them. The Family Court was expected to record the fndings

on the basis of pleadings adduced by the parties. The

Family Court has also placed reliance on pursis at Exh-21

ignoring the fact that no opportunity was given to the

appellant to reply the pursis at Exh-21.

23. The Family Court has failed to appreciate the

evidence before it in the proper perspective and has

erroneously proceeded to grant decree of divorce in favour

of the respondent without there being sufcient evidence on

record to spell out cruelty on the part of the appellant,

which would cause a feeling of deep anguish,

disappointment and frustration in the respondent caused by

the conduct of the appellant for a long time. The said

conduct had to be sustained and unjustifable and the

behavior of the appellant should actually be afecting the

29 Jg-FCA-89-2014.odt

physical and mental health of the respondent. The

treatment as complained of and the resultant danger or

apprehension of the respondent must be very grave

substantial and weighty. (Vide Samar Ghosh ..Vrs... Jaya

Ghosh, 2007(4) SCC, 511).

24. In the present case, absolutely no evidence was

adduced by the respondent to prove mental cruelty on the

part of the appellant. Whatever allegations he had levelled

in the pleadings of his petition fled for restitution of

conjugal rights, those alleged acts of cruelty were condoned

by the respondent by entering into a settlement and

cohabiting with the appellant during the pendency of the

trial. This aspect of condonation of the conduct of the

appellant by the respondent is totally ignored by the Family

Court. Thus, non application of mind and erroneous

appreciation of evidence on the part of the Family Court is

apparent on the face of the record. The allegations levelled

by the respondent and his witnesses against the appellant

could at the most be said to be an outcome of normal wear

and tear of life. Applying the aforestated ratios to the facts

30 Jg-FCA-89-2014.odt

of the present case, merely because the appellant wanted

to stay separately from her in-laws, this by itself cannot be a

ground to attribute the conduct causing the mental cruelty

by her to the respondent especially in the absence of any

evidence whatsoever. We therefore are of the considered

view that the fndings recorded and conclusions drawn by

the Family Court, since are not supported by the pleadings

and the evidence on record, they are not sustainable. The

Family Court was not justifed in granting decree of divorce

in favour of the respondent, in absence of the pleadings of

cruelty and the supporting evidence for proving it. We

therefore fnd that the impugned decision of the Family

Court is unsustainable in law and facts of the case and the

same is liable to be set aside. The point is answered

accordingly.

25. For the aforestated reasons, we pass the

following order :

i) Family Court Appeal No. 89 of 2014 is allowed.

ii)               The judgment and decree passed by the Family





                                               31           Jg-FCA-89-2014.odt

Court, Nagpur dated 30.06.2008 in Petition No. A-410 of

2004 is hereby set aside and the petition fled by the

respondent seeking divorce is dismissed.

    iii)               Parties to bear their own costs.




                                           JUDGE                     JUDGE
TAMBE