Nitin S/O Narayanrao Bobade vs Pushpa Nitin Bobde
2021 Latest Caselaw 3277 Bom

                                      1
                                                             204FCA358.14.odt



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


                   FAMILY COURT APPEAL NO. 358 OF 2014


           Nitin s/o Narayanrao Bobade
           aged about 43 years, Occ. - Nil,
           R/o. Shubham Adarsha Colony,
           Akola, Tah. & Dist. Akola
                                                            .... APPELLANT
                                   VERSUS


           Pushpa Nitin Bobade
           Aged Major, Occ. Household,
           R/o. C/o Narayan Bhonkhade,
           Vilas Colony, Kathora Naka,
           V.M.V. Road, Amravati
                                                           ...RESPONDENT
  ___________________________________________________________
       Shri R.K. Thakkar, Advocate for the appellant.
       Shri A.B. Mirza, Advocate for the respondent.
  ___________________________________________________________

                              CORAM : A.S. CHANDURKAR AND
                                      PUSHPA V. GANEDIWALA, JJ.
     DATE WHEN ARGUMENTS WERE HEARD : FEBRUARY 15, 2021.
              DATE OF PRONOUNCEMENT : FEBRUARY 22, 2021.



  JUDGMENT (Per Pushpa V. Ganediwala, J.) :

This is the husband's appeal under Section 19 of

the Family Courts' Act, 1984 against the judgment and decree

dated 05/07/2011 in petition No. A-167/2009 passed by the

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Judge, Family Court, Akola whereby his petition for divorce

came to be dismissed.

2. The facts necessary to decide the present appeal are

as under :

i) The marriage between the parties was solemnized

on 18/12/2000 at Amravati. Out of this wedlock, they have

one son by name Lalit alias Rishikesh, born on 25/12/2001.

The appellant/husband had a joint family consisting of a

mother and a married brother.

ii) It is the case of the appellant/husband that when

the respondent/wife came back after delivery on 09/04/2002

from her parental home, he noticed her strange behavior just

like a mentally sick person. She would keep murmuring to

herself. She would throw utensils. She would not sleep in the

night and walk in the house. She would accuse the appellant /

husband of having illicit relationship with her sister. The

appellant/husband informed about her behavior to her parents,

and accordingly her father came on 13/04/2002, and took her

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back to Amravati, and since then, the respondent/wife is

residing with her parents.

iii) The appellant/husband further states that he went

to Amravati on 15/04/2002 to meet the respondent/wife and

their minor son, but the respondent/wife and her parents

quarreled with him, and she refused to cohabit with him. He

states two incidents; one is of 30/06/2003 when the

respondent /wife visited the office of his brother, and abused

him in his absence, and second is of 20/03/2007 when the

respondent/wife forcibly entered his house in his absence

thereby assaulted and abused his mother. Reports were lodged

accordingly. It is further the case of the appellant/husband

that he made numerous efforts to fetch the respondent/wife,

but all efforts are gone in vain. Lastly, he states that the

conduct and behavior of the respondent/wife was only to

harass him. Under the circumstances, he prayed for dissolution

of his marriage.

iv) The respondent/wife, in her written statement at

Exh. 12, denied all the adverse allegations with regard to

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harassment. However, she admitted that after delivery, she

went back to her matrimonial house on 09/04/2002. She

states that the appellant/husband did not allow her to live

peacefully. He used to pick up quarrels at the instigation of his

mother. He used to abuse and beat her on the issue of dowry.

Once the appellant/husband called her father, and quarreled

with him, and also demanded divorce. She also states one

incident of demand of Rs.2,00,000/- (Rs. Two lakhs) on the

pretext that her father received a handsome amount in lieu of

retiral benefits. Lastly, she states that their friends and

relatives tried to settle their dispute, however, the

appellant/husband was adamant and wanted divorce. Under

these circumstances she prayed for dismissal of the petition.

v) The learned trial Court framed necessary issues and

recorded evidence as adduced by the parties. The attempts

were also made to reconcile their dispute through mediation

process as well as through marriage counselor, but in vain. The

appellant/husband examined himself at Exh. 37, while the

respondent/wife examined herself at Exh. 52. The learned trial

Court, after hearing both the parties and on the basis of

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evidence on record, came to the conclusion that the appellant/

husband has failed to prove the case of divorce. This judgment

of the learned trial Court is impugned in this appeal.

3. We have heard Shri Thakkar, learned counsel for

the appellant and Shri Mirza, learned counsel for the

respondent. We have also perused the record with the

assistance of both the learned counsel.

4. The following point arose for determination of this

Court:

Is the appellant/husband entitled for decree of

divorce on the ground of cruelty or any other

ground?

5. At the outset, a perusal of the pleadings and the

evidence in support of the pleadings would reflect that there

isn't a single incident of discord or differences between the

couple since their marriage till she came back to her

matrimonial home after delivery on 09/04/2002. The date of

their marriage is 18/12/2000 and evidently, she left for

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delivery in November 2001. This shows that for around one

year, the couple lived peacefully, and there was no instance of

disharmony between the parties.

6. We have carefully perused the evidence led by the

parties. Undisputedly, the mental cruelty, as alleged by the

appellant/husband, was spread mainly over the period of four

days i.e. 09/04/2002 to 13/04/2002. During this period, he

states that her behavior was strange like a mentally sick

person. She would murmur to herself. She would throw

utensils. She would not sleep in the night. Apart from the bare

oral testimony of the appellant/husband with regard to this

behavior of respondent/wife, there is absolutely no other

supporting material. He does not state that she was taken to

the hospital for her mental problem. On the contrary, in his

cross-examination, he has admitted that during this period, she

was unwell and, therefore, she was sent to her parental home

with her father, and after she was feeling well, she kept calling

him to come and fetch her.

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7. More so, a perusal of the aforesaid instances during

the short period of four days, at once, are nothing but the bald,

omnibus and vague instances without further details.

Furthermore, a perusal of the legal notice dated 12/07/2006,

(Exh. 45) allegedly sent by him just prior to filing of the

present petition for divorce, also does not reflect any such

allegations with regard to the strange behavior of the

respondent/wife.

8. Apart from this, the alleged strange behavior was in

the month of April, 2002, and the divorce petition was filed in

December, 2007. This unnecessary and improper delay of

around five years has not been explained by the

appellant/husband. As per Section 23(1)(d) of the Hindu

Marriage Act, 1955, the Court shall decree such relief in the

Act, if the Court is satisfied that there has not been any

unnecessary or improper delay in instituting the proceedings.

In the interregnum period, the appellant/husband could not

prove that he made attempts to fetch the respondent/wife for

cohabitation. The suggestions which were put to the

respondent/wife in her cross examination about the husband's

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coming to her parental home to fetch her, she flatly refused and

volunteered that he never came to take her back. It is the

stand of the respondent/wife since beginning that she is willing

to cohabit with the appellant/husband if he undertakes to treat

her properly. This fact gets further support from the fact that

she filed a petition for restitution of conjugal rights in the

Court at Akola which later on came to be dismissed for want of

prosecution. Evidently, in the said petition, the appellant

/husband made his appearance and also filed his written

statement.

9. As against this, the evidence on record does not

support the case of the appellant/husband that he ever tried for

restitution of conjugal rights. With regard to other instances of

cruelty as alleged by the appellant/husband, i.e., incident in

the office of brother of the appellant/husband and the incident

of respondent/wife forcibly entered the house and gave beating

and threats to his mother, the appellant/husband neither

examined his brother nor his mother nor brought on record the

police complaints allegedly lodged of the said incidents.

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10. With regard to filing of matrimonial litigations i.e.

petition for maintenance and a petition for returning of

Stridhan under Sections 405 and 406 of the Indian Penal Code,

obviously are not filed to harass the appellant/husband. The

respondent/wife is claiming her rights as available to her in

law, and the appellant/husband could not point out any finding

of any of the Courts in the aforesaid proceedings that the same

have been false and frivolous at the instance of the

respondent/wife.

11. The allegation with regard to the doubt about illicit

relations of the appellant/husband with her sister, though

appears to be serious and wild in nature, however, considering

the quality of the other material with regard to cruelty as

alleged by the appellant/husband, we have a doubt about the

truthfulness of this allegation. It is very difficult to

comprehend as to how immediately after returning to her

matrimonial house after her delivery, in four days, the

respondent/wife was skeptical about the alleged relationship.

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12. With regard to ground of desertion under Section

13(1)(ib) and mental disorder under Section 13(1)(iii) of the

Hindu Marriage Act, 1955, though the learned trial Court

considered these grounds and recorded negative findings, we

do not find any specific pleadings and prayer with regard to

these grounds in the petition of the appellant/husband. A

perusal of the evidence in the context of these grounds, yet the

appellant/husband could not prove the animus deserendi, i.e.,

intention to stay separately without any reason, on the part of

the respondent/wife and mental disorder as contemplated in

law as a ground for decree of divorce. Evidently, since

beginning, she was inclined to resume cohabitation. There

were attempts on her part. On the contrary, the appellant/

husband has failed to prove even on the basis of preponderance

of probability any endeavor on his part to resume cohabitation.

Considering the conduct of the appellant/husband, a bare legal

notice, in the instance case, without any bona-fide intention

and actual attempts to resume cohabitation, would not be of

any help to the appellant/husband to prove that he tried to

resume cohabitation.

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13. Learned counsel could not point out this Court as to

how the appellant/husband suffered the mental cruelty as

contemplated in law at the hands of the respondent/wife on

the basis of evidence on record. The learned counsel laid much

emphasis on the point that it is not the case of four days

cruelty, the respondent/wife, by her act, was harassing the

appellant/husband persistently even while residing separately.

In order to buttress his argument that the cruelty the spouse

can cause even by residing separately, the learned counsel for

the appellant relied on the judgment of the Hon'ble Apex Court

in the case of K. Srinivas Rao Vs. D.A. Deepa reported in

(2013) 5 SCC 226 wherein in paragraph No. 19, it has been

held that "staying together under the same roof is not a pre-

condition for mental cruelty. Spouse can caused mental cruelty

by his or her conduct even while he or she is not staying under

the same roof. In a given case, while staying away, a spouse

can caused mental cruelty to the other spouse by sending

vulgar and defamatory letters or notices or filing complaints

containing indecent allegations or by initiating number of

judicial proceedings making the other spouse's life measurable.

This is what has happened in this case."

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14. There can hardly be any dispute with the aforesaid

proposition of law. However, in the case in hand, the

appellant/husband could not prove as to how the respondent/

wife, while residing separately, caused him mental cruelty. He

cited two incidents, i.e., one in the office of his brother in his

absence and the second one is forcible entry in his house and

beating and threats to his mother. However, as discussed

above, he could not prove these two instances, as he neither

examined his brother or any person from his office nor his

mother. Furthermore, filing of matrimonial litigations in the

nature of claiming maintenance, return of Stridhan and

restitution of Conjugal Rights, as discussed above, cannot be

stated to have been filed in order to harass the

appellant/husband. Admittedly, respondent/wife has not filed

any complaint under Section 498A of the Indian Penal Code

nor claimed other remedies under the Domestic Violence Act.

Instead of living a life of destitute, the law conferred her a

valuable right to claim maintenance and an obligation on the

husband to maintain his wife if she is unable to maintain

herself.

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15. Learned Family Court considered the law laid down

by the Hon'ble Apex Court in the cases of Praveen Mehta Vs.

Indrajeet Mehta reported in AIR 2002 SC 2582 and Savitri

Pandey Vs. Prem Chandra Pandey, reported in AIR 2002 SC 591

and concluded that the appellant/husband has failed to make

out a case of mental cruelty by establishing that the conduct on

the part of the respondent/wife was so negative and oppressive

and of such a magnitude that it was impossible for him to

reside with her and had caused a fear in his mind for his well

being.

16. The Hon'ble Apex Court in the case of Vinita

Saxena Vs. Pankaj Pandit reported in 2006 (3) SCC 778 has

held that each case depends on its own facts and must be

judged on these facts and the concept of cruelty has varied

from time to time, from place to place and from individual to

individual in its application according to social status of the

persons involved and their economic conditions and other

matters.

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17. In the case of Mayadevi Vs. Jagdishprasad reported

in 2007 (3) SCC 136 the Hon'ble Apex Court relying on the

decision of Shobharani Vs. Madhukar Reddy reported in 1988

(1) SCC 105 has held that to constitute cruelty, the conduct

complaint should be grave and weighty so as to come to the

conclusion that petitioner's spouse cannot be reasonably

expected to live with the other spouse and such conduct must

be something more serious than "ordinary wear and tear of

married life".

18. In the instant case, the husband failed to prove the

persistent act of mental cruelty on the part of the wife to make

the life of the appellant/husband miserable and to create

anguish and hatred in his mind. For the decree of divorce on

the ground of cruelty, the cruelty shall be of enduring, continuous

and profound in nature, that the other spouse feels that the

conduct is so negative and oppressive and of such a magnitude

that it is impossible for him or her to reside with her or him.

19. It is worthwhile to mention here that, during the

pendency of this appeal, the appellant/husband filed a Civil

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Application No. 400/2020 under Order 41 Rule 27 of the Code

of Civil Procedure for production of additional evidence

wherein it is stated that in order to prove mental sickness and

misbehavior on the part of respondent/wife and wild allegation

regarding relation with her sister, appellant/husband wants to

place on record a C.D. of the incident which had occurred

during the pendency of the present appeal.

20. In support of his contention the learned counsel

relied on the judgment of the Hon'ble Apex Court in the case of

Union of India Vs. Ibrahim Uddin and another reported in

(2012) 8 SCC 148 wherein in paragraph No. 36 of this

judgment it is held that "generally the appellate court could

not travel outside the record of the lower court and cannot

take any evidence in the appeal. However, as an exception,

Order 41 Rule 27 of the Code of Civil Procedure enables the

appellate court to take additional evidence in exceptional

circumstances. The appellate court may permit additional

evidence only and only if the conditions laid down in this Rule

are found to exist. The parties are not entitled, as of right, to

the admission of such evidence. Thus, the provision does not

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apply, when on the basis of the evidence on record, the

appellate court can pronounce a satisfactory judgment. The

matter is entirely within the discretion of the court and is to be

used sparingly. Such a discretion is only a judicial discretion

circumscribed by the limitation specified in the Rule itself."

21. In the instant case, the appellant/husband wants to

bring on record a C.D. of the conversation to show that the

respondent/wife had been to his house and abused his mother

and brother. The said conversation, he states, was recorded on

mobile phone. However, there are no details given when the

conversation was recorded. Generally, the subsequent events

occurred during the pendency of the appeal, if having material

bearing on the decision of the appeal, the Appellate Court does

take the same into consideration. In this case, as discussed

above, we have already concluded with regard to insufficient

evidence to make out a case of cruelty or desertion. We would

have certainly allowed the additional evidence if the same

would have been in the considered opinion of this Court

essential for adjudication of the dispute in hand. Unfortunately,

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the incident of bad behavior of the respondent/wife allegedly

recorded in the mobile phone with mother and brother of the

appellant/husband, in view of this Court, would not be a

determinative factor and, therefore, the prayer of the

appellant/husband to lead additional evidence, cannot be

accepted. Hence, discretion under provisions of Order 41 Rule

27(1)(b) of the Code is not exercised.

22. In this context, the Hon'ble Apex Court in the case

of Ramesh Kumar Vs. Kesho Ram reported in 1992 (Suppl. (2)

SCC 623) observed that wherever subsequent events of fact or

law which have a material bearing on the entitlement of the

parties to relief or on aspects which bear on the moulding of

the relief occur, the court is not precluded from taking a

'cautious cognizance' of the subsequent changes of fact and law

to mould the relief. This judgment is further relied with

approval in the case of Pratap Rai Tanwani and anr. Vs. Uttam

Chand and anr. reported in (2004) 8 SCC 490.

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23. In the circumstances, a well reasoned judgment of

the trial Court which was passed after considering the entire

evidence on record, we do not think any interference is called

for. The appellant/husband has failed to make out a case of

mental cruelty or any other ground for a decree of divorce. In

the circumstances appeal is bereft of any merits and deserves to

be dismissed and the same is accordingly dismissed with costs.

All the pending civil applications stand disposed of.

                               JUDGE                    JUDGE
  *DB