Bombay High Court
Nayan S/O Santoshrao Kamble vs Pranita W/O Nayan Kamble on 21 January, 2021
Bench: A.S. Chandurkar, Nitin B. Suryawanshi
1 FCA 17,18 & 22.20
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FAMILY COURT APPEAL NO.17 OF 2020
WITH
FAMILY COURT APPEAL NO.18 OF 2020
WITH
FAMILY COURT APPEAL NO.22 OF 2020
FAMILY COURT APPEAL NO.17 OF 2020
Nayan s/o Santoshrao Kamble,
Aged 36 years, Occupation-Service,
R/o. Plot No.54, Chandramani Nagar,
Nagpur. .. Appellant
.. Versus ..
Pranita w/o Nayan Kamble,
Aged about 27 years,
Occupation-Service,
R/o. C/o. Deopal Ganar,
Plot No.68, Milind Nagar,
Near Boudha Vihar, Khamla,
Nagpur. .. Respondent
..........
Shri Mahesh Rai, Advocate for the appellant,
Shri G.N. Khanzode, Advocate for the respondent.
..........
WITH
FAMILY COURT APPEAL NO.18 OF 2020
Nayan s/o Santoshrao Kamble,
Aged 36 years, Occupation-Service,
R/o. Plot No.54, Chandramani Nagar,
Nagpur. .. Appellant
::: Uploaded on - 21/01/2021 ::: Downloaded on - 08/02/2021 12:11:00 :::
2 FCA 17,18 & 22.20
.. Versus ..
Pranita w/o Nayan Kamble,
Aged about 27 years,
Occupation-Service,
R/o. C/o. Deopal Ganar,
Plot No.68, Milind Nagar,
Near Boudha Vihar, Khamla,
Nagpur. .. Respondent
..........
Shri Mahesh Rai, Advocate for the appellant,
Shri G.N. Khanzode, Advocate for the respondent.
..........
WITH
FAMILY COURT APPEAL NO.22 OF 2020
Pranita w/o Nayan Kamble,
Aged about 29 years,
Occupation-Service,
R/o. C/o. Deopal Ganar,
Plot No.68, Milind Nagar,
Near Bouddha Vihar, Khamla,
Nagpur. .. Appellant
.. Versus ..
Nayan s/o Santoshrao Kamble,
Aged 38 years, Occupation-Service,
R/o. Plot No.54, Chandramani Nagar,
Nagpur. .. Respondent
..........
Shri G.N. Khanzode, Advocate for the appellant,
Shri Mahesh Rai, Advocate for the respondent.
..........
CORAM : A.S. CHANDURKAR AND
N.B. SURYAWANSHI, JJ.
RESERVED ON : 22.12.2020.
PRONOUNCED ON : 21.01.2021.
3 FCA 17,18 & 22.20
JUDGMENT [PER : N.B. SURYAWANSHI, J.]
1. These three appeals take exception to the common
judgment passed by the Judge, Family Court No.2, Nagpur in
Petition No. A-1014/2016 filed by Nayan under Section 13 (1)(i-a)
of the Hindu Marriage Act, 1955 seeking divorce, Petition No. A-
276/2017 filed by Pranita under Section 9 of the Hindu Marriage
Act, 1955 for restitution of conjugal rights and Petition No. E-
395/2015 filed by Pranita under Section 125 of the Code of Criminal
Procedure, 1973 for grant of maintenance.
2. By the impugned common judgment, the Family Court
dismissed Nayan's petition for divorce, rejected Pranita's claim for
maintenance, however, decreed the petition of Pranita for restitution
of conjugal rights, hence these three appeals are being decided by
this common judgment.
Petition No.A-1014/2016
3. Nayan has filed this petition seeking divorce from Pranita
on the ground of cruelty. Marriage between Nayan and Pranita was
solemnized on 28.09.2014 at Nagpur. After the marriage, Pranita
cohabited with Nayan for near about five months. At the time of
4 FCA 17,18 & 22.20
marriage, Nayan was serving as Research Officer at Tribal
Development Department at Nandurbar. The parents of Nayan were
residing at Nagpur. After the marriage, Nayan went to Nandurbar
and Pranita stayed with her in-laws. Father of Nayan is a heart
patient and his mother is bed ridden. According to Nayan, Pranita
refused to take care of his parents though the ailments of his parents
were informed to Pranita's family prior to marriage. Nayan took
Pranita to Nandurbar, where he was residing with his friends in the
quarter. He stayed with Pranita in a separate room in that quarter,
but Pranita was not satisfied. She was insisting for separate room on
rent which he could not get. Pranita was not preparing tiffin for him
at his office time and she was not discharging matrimonial duties
towards Nayan. As Nayan was deputed for an inquiry at Aurangabad
between 22.12.2014 to 17.03.2015, he brought Pranita to Nagpur on
21.12.2014, however, she refused to stay with his parents and asked
him to leave her to her paternal house. According to Nayan, his
mother was unwell, however, Pranita did not take her care and she
neglected her in-laws. She was constantly quarreling with her in-laws
on instigation of her mother. On 18.02.2015, Pranita told her cousin
on phone that if her mother-in-law had been given a kick blow the
back, she would behave properly. Pranita also demanded divorce.
On 19.02.2015, her mother instigated her by saying that she should
5 FCA 17,18 & 22.20
behave in a rude and arrogant manner with in-laws. On 20.02.2015
her sister Manisha Balvir used bad words for Nayan and Pranita
called Nayan as 'Hijada' (eunuch).
4. Nayan has quoted conversation of Pranita on cell phone
wherein she said bad words for her mother-in-law. Conversations of
Pranita with her mother and her cousin sister dated 18.02.2015,
19.02.2015 and 22.02.2015 in vernacular are quoted in the
pleadings. On 11.04.2015 when mother-in-law was admitted in
Neuron Hospital for operation, Pranita did not visit the hospital,
though she was aware. Pranita used insulting words to his mother
that her mother-in-law is old and suffering from ailments, however,
she does not die early, she should die early and then only Pranita can
rule. She used to ask her mother to give such poison by which her
in-law would die at once. When father-in-law was admitted in
hospital for operation that time also Pranita never visited him.
Pranita used to insult father-in-law frequently. When father-in-law
asked Pranita to wash the vegetable clean and use less oil and chilly
powder while preparing it, Pranita arrogantly told father-in-law that
he may do it on his own and not to tell her to do any work.
Thereafter, she would not do any work and if anybody says
something to her, then by telling her sister, she would lock them up
6 FCA 17,18 & 22.20
in the Police Station, she also said that she is not their maid servant.
According to Nayan, he called her cousin (brother) and uncle and
they came, however, Pranita refused to listen to them. Pranita called
her mother and along with her by taking her belongings, ornaments
and clothes left the matrimonial home on 28.2.2015. This shows that
Pranita was not interested in cohabiting with Nayan. It is further
pleaded that Pranita's mother is serving in a hospital and she knows
about the poison. Pranita's mother assured her to bring poison for
mixing it in the meal and medicines of her in-laws. Pranita, with the
help of her mother, planned to kill in-laws by poisoning. Pranita
asked her mother to bring poison which would instantaneously kill
her in-laws. Even Pranita's cousin (sister) used to instigate her
against the in-laws. Even the conversation between Pranita and her
cousin was recorded. Pranita used to say to Nayan that she will not
do anything for her ailing in-laws and she wanted divorce from him.
Pranita was not taking care of his parents and was behaving with
them in insulting manner. Pranita adopted uncompromising and
adamant attitude and neglected Nayan and his old parents, who
were suffering from serious ailments. Pranita's mother and mediator
instigated her in doing so and also supported her maliciously with
malafide intention to mentally harass Nayan. He further pleaded
that due to rude, arrogant, proudy and insulting behaviour of
7 FCA 17,18 & 22.20
Pranita, Nayan had suffered great mental torture and agony, due to
which, Nayan had come to the conclusion that it will not be possible
for him to live a peaceful and happy married life with Pranita in
future. Nayan claimed to have lost confidence of faithfulness and
loyalty of Pranita towards him. Nayan was afraid of any untoward
incident and causing danger to his life and life of his parents
suffering from serious ailment at the instance of Pranita, as Pranita
with her mother had conspired to kill Nayan's old aged parents by
mixing poison in their milk, water or medicines. Pranita's mother
threatened Nayan on mobile that if he does not listen to Pranita, then
she will kill Nayan by sending 4-5 youths from her house. Nayan
claimed that Pranita had left matrimonial house on her own accord.
Because of the plan of Pranita to kill her in-laws by poisoning them,
the matrimonial relations between Nayan and Pranita became
strained and since then Pranita had been residing separately. Due to
the above narrated instances, Pranita has caused mental cruelty to
him and Nayan's life was in danger at the hands of Pranita. He,
therefore, claimed that there is no possibility of reunion and hence
he wants decree of divorce. He further claimed that Pranita had
lodged false complaints by levelling serious allegations upon him, she
also filed petition under Section 12 of the Protection of Women from
Domestic Violence Act, 2005 as well as proceedings under Section
8 FCA 17,18 & 22.20
125 of the Code of Criminal Procedure. Pranita and her mother
defamed Nayan in the society and, therefore, it is not possible for
him to continue his matrimonial relations with Pranita. He,
therefore, prayed for dissolution of marriage on the ground of
cruelty.
Pranita's case in short is as under :
5. Pranita, by filing written statement at Exh.14, resisted the
claim of Nayan. She denied all the allegations. According to her, at
the time of settlement of marriage, she was told that she would
reside with Nayan at the place of his work. As per the custom, after
marriage wife is supposed to stay with her husband, but she was
forced to stay with her in-laws, therefore, from the date of marriage,
Nayan was not performing his marital obligations. She was always
subjected to mental and physical cruelty, as she was not allowed to
stay with Nayan. According to her, after the solemnisation of
marriage on 28.9.2014, she was for the first time taken to Nandurbar
on 9.11.2014. At Nandurbar also Nayan did not take her care and he
used to stay out of the home till midnight, leaving her alone in the
strange and unknown town. After a brief stay of 10 days, she was
brought back to Nagpur on 21.11.2014 for the reason that her
father-in-law was not well. On coming to Nagpur, Pranita found her
9 FCA 17,18 & 22.20
father-in-law hale and hearty. On 22.11.2014 Nayan left Pranita
with in-laws and went back. When Pranita insisted that she should
accompany him, he told her that the marriage was performed by him
only to look after his parents. She was intentionally kept at Nagpur
to serve her in-laws. Pranita sincerely discharged her duties towards
in-laws. After the marriage, she was taken to Nandurbar only for
total period of 15 days and rest of the time she was always taking
care of her in-laws. Nayan used to beat her and under the influence
of liquor subjected her to mental and physical cruelty. The mother-
in-law always used to taunt her being unfertile and ill-omen lady.
On 28.2.2015, a meeting of the relatives was called in which her in-
laws behaved in adamant manner. Nayan slapped her in the
presence of all the relatives. According to her, calling of the meeting
was a plan of Nayan to drive her out of the matrimonial house. She
was driven out on 28.2.2015 and since then she is residing at the
mercy of her parents. In spite of repeated efforts, Nayan due to
instigation of his mother did not accept Pranita back. Even in the
notice/reply sent by Pranita, she called upon Nayan to take her back
within 7 days, as she was willing to join him, but he did not take her
back. Nayan has neglected and refused to maintain her in spite of
having sufficient means. Pranita was constrained to lodge report
against Nayan about ill-treatment. Though Nayan appeared at the
10 FCA 17,18 & 22.20
women cell in that behalf and assured to take Pranita back, he did
not do so. Nayan filed petition for judicial separation making false
allegations to avoid his duty to pay maintenance. Pranita therefore
claimed that Nayan and his parents have ill-treated and humiliated
her, which amounts to mental cruelty. Therefore, Nayan is not
entitled for decree of divorce on the ground of cruelty and therefore,
his petition may be dismissed.
Petition No.A-276 of 2017
6. Pranita, by pleading similar facts as noted above and
further contending that many efforts were made by her for
reconciliation and though in her notice-reply she called upon Nayan
to take her back for cohabitation within 7 days, he failed to do so.
She, therefore, sought relief of restitution of conjugal rights. Nayan,
in his reply, has denied the contents of Pranita and reiterated his
contentions in the divorce petition.
Petition No. E-395/2015
7. Pranita claimed maintenance under Section 125 of the
Code of Criminal Procedure by reproducing the facts in the written
statement filed by her in Petition No. A-1014/2016 and her
11 FCA 17,18 & 22.20
pleadings in Petition No. A-276/2017. She claimed that Nayan is
earning monthly income of more than Rs.50,000/- and his parents
are getting pension. Pranita claimed to be residing at the mercy of
her parents and hence she claimed maintenance at the rate of
Rs.25,000/- per month.
8. The learned Judge of Family Court rejected the divorce
petition filed by Nayan, so also maintenance petition filed by Pranita
and decreed Pranita's petition for restitution of conjugal rights.
Hence, the present Family Court Appeals filed by Nayan and Pranita
respectively challenging the decisions against them.
9. Heard the learned advocates for the parties. The learned
advocate for Nayan vehemently contended that Nayan has proved
cruelty on the part of Pranita and hence the Family Court ought to
have allowed the divorce petition. He further argued that from the
rival contentions and the evidence brought on record, it is clear that
the marriage is irretrievably broken down and on that ground also,
the trial court ought to have granted divorce. Further submission is
that the Family Court has committed an error in rejecting electronic
evidence of CD on the ground that Certificate u/s 65B of Evidence
Act is not filed and that Nayan has failed to prove the digital
12 FCA 17,18 & 22.20
evidence as required by law. According to him, the Family Court
has adopted hyper technical approach in rejecting the evidence of
CD. By placing reliance on Section 14 of the Family Courts Act, 1984
he submitted that the CD was admissible in evidence and it ought to
have been exhibited and considered by the Family Court while
deciding the matters. It is further urged that the Family Court erred
in holding that Nayan has failed to prove the conversation in the CD.
He further argued that in number of reports filed by Pranita against
the in-laws and Nayan, improvements are made from time to time.
The learned advocate for Nayan argued that documents at Exh.19 to
52 pertain to ailments of the parents of Nayan and they are relevant
documents. The denial on the part of Pranita about ailments of
in-laws itself amounts to cruelty. He further submitted that sister of
Pranita, who filed F.I.R. alleging offence under Section 354 of the
Indian Penal Code against Nayan and in-laws, was not examined
and, therefore, adverse inference should be drawn against Pranita.
He contended that the Family Court has failed to appreciate the
evidence led by the witnesses in the proper perspective. Nayan has
proved his case for divorce by leading cogent and reliable reasons
and by examining witnesses. He further submitted that filing of
various proceedings against Nayan by Pranita itself amounts to
cruelty and on that ground alone, Nayan is entitled for divorce.
13 FCA 17,18 & 22.20
In support of his contention, he relied upon the following
judgments :
(1) V. Bhagat .vs. D. Bhagat, 1994 SCC (1) 337.
(2) Samar Ghosh .vs. Jaya Ghosh, (2007) 4 SCC 511.
(3) Sameersingh Sureshsingh .vs. Savita Sameersingh
Suryawanshi, 2008 (1) MhLJ 13.
(4) Sau. Lilesh Agrawal w/o Vinod Agrawal .vs. Vinod
s/o Ramrichpal Agrawal, 2015 (6) Mh.L.J.
(5) Poonamchand Patil .vs. Smt. Shilpa Patil in Family
Court Appeal No.306-307/2014.
(6) Prajakta w/o Abhay Chandpurakar .vs. Abhay s/o
Baban Chandpurakar in Family Court Appeal
No.346/2014.
(7) Madhu Dhyade .vs. Sangmeshwar Dhyade in Family
Court Appeal No.134/2008.
(8) Sri Subhash Chandra Das Chowdhury .vs. Smt.
Sandhya Das Chowdhury in First Appeal
No.96/2000.
(9) Sri Kiran C. .vs. Smt. Latha T G. in Misc. First
Appeal No.6507/2015 (FC).
(10) Smt. Archana .vs. Dr. P.K. Tomar, 2003 (2) AWC
1119.
(11) Ramesh Jangid Alias Rameshwar .vs. Smt. Sunita,
RLW 2007 (4) Raj. 2726.
(12) Vivek .vs. Vanita, II (2204) DMC 362.
(13) K. Radha Raju .vs. K. Seetharama Raju, 2001 (6)
ALD 460, 2001 (6) ALT 350.
(14) Manpreet Kaur Malkiat Kaur .vs. Salwinder Singh,
FAO No.M-270/2013.
14 FCA 17,18 & 22.20
(15) Smt. Sadhana Srivastava Wife of .vs. Sri Arvind
Kumar Srivastava, AIR 2006 All 7, 2006 (1) AWC
177, II (2005) DMC 863.
(16) Smt. Lavanya .vs. Ragavendra Goud, Civil Misc.
Appeal No.1134/2019.
(17) Civil Revision Petition No.1849/2018 R. Premalatha
.vs. V. Nandagopal.
(18) Second Appeal No.0683/2014 Nilesh Bhagwan
Mahajan .vs. Shivpriya Nilesh Mahajan.
(19) Criminal Writ Petition No.210/2019 Premdeep s/o
Nishikant Matlane .vs. Mrs. Bhavana w/o Premdeep
Matlane.
10. Per contra, the learned advocate for Pranita submitted
that after marriage on 28.9.2014 within a short span of
approximately five months, Pranita was driven out of the
matrimonial house. During this period, Nayan was serving at
Nandurbar and only for a period between 14.11.2014 to 26.11.2014,
Pranita stayed along with Nayan at Nandurbar at railway quarter
wherein 4 friends of Nayan were staying. Pranita prepared meals for
all of them during her stay. On 27.11.2014, Pranita was brought
back to Nagpur on the pretext that father-in-law was ailing. Except
this period, Pranita was never taken to the place where Nayan was
serving. Pranita was all along with in-laws serving them and taking
care of them. He further submitted that during the period between
15 FCA 17,18 & 22.20
4.12.2014 to 21.12.2014 Nayan was at Aurangabad on deputation.
During this period, Nayan has alleged about conversation of Pranita
on phone allegedly talking bad things about in-laws and about killing
them by administering poison, however, there are neither specific
pleadings nor any details are given by Nayan, even cell number from
which the alleged conversation was made, the time of conversation,
who called all these details are missing from the pleadings. Thus
vague allegations are levelled by Nayan which cannot be taken into
consideration and the Family Court has rightly not relied on them.
It was further submitted that Petition No.A-476/2015 filed under
Section 12 of the Hindu Marriage Act by Nayan for judicial
separation was withdrawn by Nayan, however, this fact was not
disclosed in the present divorce petition, so also the same was also
not disclosed in the notice at Exh.14 given by Nayan to Pranita. In
the notice/reply, Pranita has specifically contended that she was
ready and willing to cohabit with Nayan. He further submitted that
there are no specific pleading and evidence about CD. The Family
Court, therefore, was justified in disallowing the evidence of CD by
giving cogent reasons. By taking us through the evidence of Nayan
and his witnesses, he submitted that the same does not prove cruelty
on the part of Pranita. The witnesses examined by Nayan are not
reliable and they do not in any manner help the case of Nayan.
16 FCA 17,18 & 22.20
Nayan and his father have admitted in cross-examination that they
stopped Pranita from entering the house. The learned advocate
supported the orders of Family Court to the extent it rejected decree
of divorce to Nayan and it granted decree of restitution of conjugal
rights in favour of Pranita.
11. In respect of maintenance, he submitted that interim
maintenance at the rate of Rs.8,000/- per month was granted during
the pendency of the proceedings before the Family Court and it was
reduced to Rs.6,500/- per month by this court. He submitted that
the Family Court has erred in rejecting the maintenance to Pranita.
The findings of the Family Court in that behalf are perverse. In
absence of Labour Officer having been examined, the certificate
issued by him could not have been relied upon by the Family Court.
The Family Court ought to have granted maintenance at the rate of
Rs.25,000/- per month to Pranita.
12. In view of above contentions, following points arise for
our consideration :
(i) Whether the Family Court was justified in
rejecting the decree of divorce to Nayan ?
(ii) Whether the Family Court was justified in
rejecting maintenance to the Pranita ?
17 FCA 17,18 & 22.20
(iii) Whether the Family Court was justified in
granting decree for restitution of conjugal rights
in favour of Pranita ?
(iv) What order ?
For consideration of rival contentions, it would be appropriate to
consider the evidence led by both the sides.
13. Nayan, in support of his case, examined himself by filing
an affidavit in lieu of evidence, which was reproduction of his
pleadings on the petition filed by him seeking divorce. In his cross-
examination, he admitted that he was staying in the railway quarter
at Nandurbar along with his friend Sunil, Sandip and one more boy
studying in 10th Standard. He did not avail separate accommodation
for him. At the time of his marriage, elder brother Aman alone was
staying along with his parents and there were matrimonial disputes
between Aman and his wife. Divorce took place between Aman and
his wife and Aman has paid Rs.7,00,000 (Rs. Seven Lacs only) as
permanent alimony to his wife in compromise. He admitted that
both his parents have retired, his mother was Headmistress in Zilla
Parishad High School, Wadi and his father retired as a teacher in
2007 and his parents were getting monthly pension. He also
18 FCA 17,18 & 22.20
admitted that he was working as Assistant Project Officer. He did
not have document to show that his parents were seriously ill during
the period 23.11.2014 to 26.11.2014. He went back alone on
26.11.2014 to Nandurbar. Pranita stayed back with his parents as
they were not keeping well and as there was no one, except Pranita
to take care of his parents. He further admitted that he did not have
any personal knowledge about events took place in his house at
Nagpur in his absence. He also stated that his parents have mobile
phone and he was in constant contact with his parents who were
giving him information. He admitted to have filed petition
no.A-476/2015 for judicial separation, which was filed within three
months of incident dated 28.2.2015. The same was withdrawn as he
wanted to file petition for divorce. Before filing of the said petition
he had issued notice to Pranita through his advocate. Pranita replied
the said notice by denying all the allegations and asking him to take
her back for cohabitation within seven days of the receipt of the
notice. He admitted that he had not taken Pranita for cohabitation
within seven days as asked by her. He further admitted that on
4.9.2016 Pranita along with her father, brother-in-law, her sister, her
maternal aunt and husband of maternal aunt had come to his house,
she brought her bag of clothes with her and he was at home at that
time. He further admitted that he stopped Pranita from entering the
19 FCA 17,18 & 22.20
house. He stated that his evidence affidavit Exh.16 was prepared by
his advocate as per his instructions. Before signing the affidavit, he
read the contents of it. In his evidence, marathi version of telephonic
conversation was mentioned in paras 4, 5, 6, 7, 8 and 10, however,
he did not mention the time of said phone call, cell number from
which the said conversation was done, as he wanted to file the
compact disc (CD) of the said conversation in his evidence. He also
admitted that at the time of filing of his evidence affidavit and
recording of further examination-in-chief, he had not filed the
compact disc of the said conversation. He denied the suggestion that
no such telephonic conversation had taken place and, therefore, he
has not mentioned the cell numbers and timing of the conversation
in his evidence affidavit. Though he claimed to have lodged report to
the Police Station alleging that Pranita tried to kill her in-laws by
slow poisoning them, till the date of recording of his evidence, he did
not file copy of the said report on the record of this file. He admitted
that on 4.9.2016 Pranita had lodged the report at Police Station, Ajni
against him and his mother alleging that they beat her and her
relatives. He also stated that he had decided to take divorce from
Pranita in any situation.
14. Friend of Nayan Shri Rajiv Zodape was examined as
PW-2, he stated in his evidence that he knows Nayan and Pranita
20 FCA 17,18 & 22.20
since last 15 to 20 years. Their marriage took place on 28.9.2014 as
per Bouddha rites. Pranita and her relatives were informed about
ailing parents of Nayan prior to the marriage. The marriage was
settled with intervention of Manisha Balvir, relative of Pranita. She
used to visit the house of Nayan at Nagpur. The mother of Nayan
used to tell him that Pranita is not behaving properly. She used to
tell about bad utterances by Pranita towards them. He stated that
Pranita was not taking care of in-laws and she used to abuse them in
filthy language. He stated that she wanted divorce.
In cross-examination, he admitted that whatever he has
stated in para 2 of his evidence/affidavit i.e. about behaviour of
Pranita with her in-laws is on the basis of information given by the
mother of Nayan and he has no personal knowledge of the same.
15. Father of Nayan namely Santosh Kamble was examined as
PW-3. He stated in his evidence that Pranita was not behaving
properly with them and she was not taking their care. Pranita used
to always taunt about their ailing condition, she was neglecting her
household duties. She used to always go to her maternal home. She
had left the matrimonial house on her own accord along with her
relatives on 28.2.2015.
21 FCA 17,18 & 22.20
In the cross-examination, he admitted that after marriage
Pranita started residing with in-laws, as Nayan was working at
Nandurbar. Nayan used to visit Nagpur at the time of weekly
holidays or on other holidays and Pranita stayed with in-laws at
Nagpur. At that time, Aman, brother of Nayan was also staying with
them. He admitted that on 9.11.2014 Nayan took Pranita to
Nandurbar first time after the marriage and as mother-in-law was not
keeping well, Nayan and Pranita returned to Nagpur on 21.11.2014
from Nandurbar as per the phone call made by him. He stated that it
is not true that during the period of stay of Pranita with them, she
used to do entire household work, such as cooking food, fetching
water etc. He stated that, in fact, they had hired a maid servant to
cook food and to wash clothes, utensils and to fetch water. He
denied that when Pranita was fetching the water, he scolded her as
she had dipped her fingers in the water. He stated that, in fact, he
gave understanding to her that she should not put her fingers inside
the pot while fetching water as there may be germs on her fingers.
He admitted that his elder son Aman took divorce from his wife in
January-2016 by way of settlement. He feigned ignorance about the
quantum of alimony paid by Aman to his wife. Aman married again
but he was staying separately. He also admitted that since 28.2.2015
Pranita was staying at her matrimonial house and they did not try to
22 FCA 17,18 & 22.20
bring her back, as they were not ready to take her back for
cohabitation. He also admitted that Nayan filed petition for judicial
separation which was withdrawn in the month of August. He
denied that after withdrawal of the said petition, on 4.9.2016 Pranita
along with her parents and elder sister came to their house and
requested them to allow her to stay in the matrimonial house. He
admitted that Pranita's maternal uncle and two other persons were
also present along with her and she tried to enter in the matrimonial
house, however, they prevented her from entering the house. He
also admitted that he has not mentioned about the date, time and
place of incident of meeting of the relatives for the conciliation
between Nayan and Pranita and of the incidents of Pranita saying
bad things to the in-laws. He also admitted in his evidence-affidavit
that he mentioned about the letter of the advocate of Pranita being
shown to them as order of the court, the same is not filed on record.
The date of incident is also not mentioned.
16. Sau. Yashodhara Nanvate, neighbour of Nayan who used
to stay in front of his house at Nagpur, was examined as PW-4. She
deposed that Pranita never behaved properly with her in-laws. She
was not taking their care and she used to quarrel on petty issues.
Pranita used to pressurise Nayan for staying separate from his
23 FCA 17,18 & 22.20
parents. She used to call her mother on mobile phone and her
mother used to quarrel by coming in front of the house of Nayan, she
used to abuse in filthy language, she used to ask Pranita to pack her
bags and leave the house of Nayan. Pranita left the matrimonial
house on 28.2.2015 after quarreling and since then she is residing at
her maternal house. On 4.9.2016 Pranita came along with her sister,
father, brother and brother-in-law by showing advocate's letter, they
told that it is a court order, they entered the house of Nayan and beat
him, his father shouted for help, the neighbour rushed and saved
them.
During cross-examination, she did not remember the
dates on which her two daughters got married. She admitted to have
acquaintance with Nayan's family from more than 20 to 25 years.
She further admitted that the family of Nayan helped her at the time
of marriage of her two daughters. She admitted that she had not
mentioned the dates of incident and it's timing as well as the name of
the witnesses in front of whom Pranita uttered abuses for her in-
laws. She also admitted that she did not mention the name of
disease which parents of Nayan are suffering from. She denied that
on 4.9.2016 Pranita was brought by her sister, brother, father and
brother-in-law to drop her at her matrimonial house and at that time
she was holding a bag in her hand. She further stated that it is not
24 FCA 17,18 & 22.20
true that on that day Pranita was not allowed to come inside the
matrimonial house by Nayan and his parents. She did not mention
the name of another neighbour who was present on the date of
incident dated 4.9.2016 in her affidavit of evidence. She admitted
that she had come to the court along with Nayan.
17. Pranita filed affidavit in lieu of evidence and reiterated
the contentions raised in the written statement as well as in the
petition filed for restitution of conjugal rights and in the petition for
maintenance. In her cross-examination, she denied the suggestion
that at the time of fixation of marriage they were made aware of the
fact that Nayan's mother was suffering from illness and she was
bedridden. She admitted to have gone to Goa for honeymoon on
5.10.2014 and returned home on 11.10.2014. She admitted to have
gone to Nandurbar along with Nayan on 9.11.2014 and they
returned back to Nagpur on 22.11.2014. She stayed along with her
in-laws thereafter, she admitted that there is no documentary proof
to show that she was mercilessly beaten at the hands of Nayan. She
denied the suggestion given on behalf of Nayan about not taking care
of his parents and abusing them. She denied that there was a maid
for cooking in matrimonial house. She further denied that she was
serving as a Computer Teacher with Pracharya Arunrao Kalode High
School and Junior College Khamla, Nagpur. She denied the
25 FCA 17,18 & 22.20
suggestion that at the railway quarter at Nandurbar where she was
living with Nayan, there were only three persons living in the
quarter. According to her, six persons including herself and Nayan
were staying in the quarter. She denied that during her stay at
Nandurbar, Nayan was taking proper care of her. She admitted that
on 7.12.2014 she along with Nayan went to Nandurbar for second
time and they lived there for six to seven days. She denied the
suggestion that while cohabiting she frequently used to call on cell
no.8421466613 from her cell no.7385533302. Pranita specifically
denied the conversations allegedly made by her on cell phone in
respect of her in-laws which were mentioned by Nayan in vernacular.
She further denied that she used to hatch a plan to give poison to her
in-laws in the food and other consumable things. She admitted that
her mother is serving in Lata Mangeshkar Hospital. She denied that
her mother had planned to provide poison to her in-laws with the
help of doctors. She also stated that on 4.9.2016, she carried a letter
of her advocate and stated it to be an order of court and tried to
enter the house of Nayan. She admitted that her sister Ashmita is a
lady Police Constable, but denied that due to her sister's influence
she got registered offence u/s 498-A of the Indian Penal Code
registered against Nayan and his parents. She further admitted that
during pendency of the proceedings before the Family Court, she was
26 FCA 17,18 & 22.20
working as a Computer Trainer at Pracharya Arunrao Karode
Vidhyalaya. She denied that she was getting salary of Rs.12,934/-.
She denied that she also joined in Lata Mangeshkar Hospital and was
getting salary of Rs.12,934/- there and that salary was deposited in
her account through the account of one Mr. Vilas Bhalekar. She
stated that said amount was credited in her account as a financial aid
to her education and this was not the amount of her salary. She
further stated that at that time she was taking training of C.T. Scan
and MRI and for that purpose she was being financially assisted. She
denied the suggestion that she was working in Meet X-Ray Clinic
with Mr. Pradeep Kesare. She was shown eight photographs filed in
Petition E-395/15 with list Exh.38. In photograph no.1, Pranita and
Mr. Pradeep Kesare were seen. She, however, denied that she was
serving and earning in Meet X-Ray Clinic and earning. She denied
the certificate issued by the Labour Officer that she was working and
earning.
18. Vanita Wasnik, maternal aunt of Pranita, was examined as
RW-2 by Pranita. She stated that Pranita started residing at
matrimonial house after marriage. Nayan left for Nandurbar to join
his duties, however, he did not take Pranita to Nandurbar. He said
before this witness that he had performed marriage only to serve his
27 FCA 17,18 & 22.20
parents and, therefore, Pranita would be staying with in-laws. She
narrated ill-treatment given to Pranita and that Pranita was driven
out of the matrimonial house on 28.2.2015. Her efforts of mediation
with Nayan failed. After withdrawal of petition bearing no.476/2015,
this witness along with Pranita, her sister, son-in-law, father and
brother went to the matrimonial house as Pranita wanted to stay
there. However, Pranita was not allowed to enter the house. She
along with her family members were abused in filthy language by
Nayan and were also subjected to beating. Nayan also manhandled
Pranita's sister Ashmita and outraged her modesty. She admitted
that on 28.2.2015 she was not present at the house of Nayan. She
denied other suggestions that Pranita did not take care of her in-laws
and she used to quarrel with them and she failed to perform her
duties towards her in-laws.
19. Maternal uncle of Pranita Shri Siddheshwar Dhole was
examined as RW-3. He reiterated the contentions of Pranita and
other witnesses. This witness has stated in cross-examination that he
did not know what incidents happened from the date of marriage till
28.2.2015 between the parties. He was not aware about the cases
pending between the parties. On 4.9.2016 he along with Pranita and
her relatives went to the matrimonial house of Pranita by his car. He
28 FCA 17,18 & 22.20
admitted that there was no order of court allowing them to go to the
matrimonial house of Pranita. He stated that Nayan and her in-laws
assaulted Pranita due to which blood started oozing from her nose
and her face was swollen. After the incident they went to the Police
Station. He admitted that the police did not take cognizance of the
complaint of Pranita.
20. Sau. Manisha Balvir, maternal aunt of Pranita, was
examined as RW-4, who was mediator along with one Asha Gaikwad
in the marriage between Nayan and Pranita. She deposed about ill-
treatment given to Pranita. In cross she denied that she used to
instigate Pranita not to reside with her in-laws. She has not stated
the date, day or month as to when Pranita was threatened. She
admitted that she was not present in the meeting dated 28.2.2015.
21. The learned Family Court, after assessing the evidence,
came to the conclusion that Nayan has failed to prove cruelty on the
part of Pranita and, therefore, held that Nayan is not entitled for
decree of divorce, it further held that Pranita has proved that Nayan
has withdrawn himself from her society without any reasonable
cause or excuse and, therefore, granted decree of restitution of
conjugal rights in favour of Pranita. The learned Family Court
29 FCA 17,18 & 22.20
though held that Nayan had sufficient means and has neglected and
refused to maintain Pranita, rejected the prayer of maintenance
holding that Pranita has every where made false statement on oath
about her income and ability to earn. The Family Court relied upon
the photograph in which Pranita and one Mr. Kesare were seen.
Therefore, it came to the conclusion that Pranita is able to maintain
herself and she had sufficient means to earn and that she has
suppressed vital facts from the court. Hence, the maintenance was
refused to her.
22. On careful scrutiny of evidence led by both the sides, it is
clear that Nayan has placed CD on record at belated stage. There are
no pleadings on record in respect of the CD. The learned advocate
for Nayan was justified in arguing that the Family Court has adopted
hyper technical approach in holding that since certificate u/s 65B of
Evidence Act is not produced along with CD, the CD is not admissible
in evidence and the CD could have been admitted in evidence in
terms of Section 14 of the Family Courts Act, 1984 however,
according to us, the Family Court was justified in not considering the
CD in absence of any transcription of the CD placed on record and
compared with it. Since the phone number from which the calls
were made or received and the time when the calls were made and
30 FCA 17,18 & 22.20
conversations took place coupled with the fact that the CD was not
produced at the first opportunity, so also when the affidavit of
evidence was filed by Nayan or even at the time of recording his
further examination-in-chief, the Family Court was right in not taking
the CD into consideration. We also agree with the finding recorded
by the Family Court that Nayan has failed to prove the conversations
of Pranita on mobile phone with her mother and with her cousin,
nothing is there to show as to when alleged conversations were made
by Pranita on 18.2.2015, 19.2.2015 and 22.2.2015, no time is given
as to when the conversations were made and from which cell
number. It appears from the record that Nayan was not present at
Nagpur when these alleged conversations were made by Pranita.
Then how and in what manner and who recorded the conversations
is not clear. Father-in-law, who was at Nagpur at the time of alleged
conversations, does not utter a single word about the conversations.
Therefore, it is clear that Nayan has failed to prove alleged
conversations, so also alleged conspiracy and plan of Pranita and her
mother to kill her in-laws by poisoning. There is absolutely no
evidence on record to prove these serious allegations. The learned
Family Court, according to us, was right in coming to the conclusion
that Nayan has failed to prove the conversations on mobile phone
and the alleged conspiracy to kill in-laws.
31 FCA 17,18 & 22.20
23. General allegations are levelled by Nayan against Pranita
that she was talking to his parents in rude and arrogant manner and
she was refusing to perform her duties as housewife and as daughter-
in-law. The admission given by Nayan in the cross-examination that
as his parents were not keeping well, Pranita had stayed with them
and as there was no one except Pranita to take care of his parents,
she stayed back with his parents, belies his allegations that Pranita
was not taking care of his parents and was not doing her household
duties. These vague and general allegations are unacceptable in view
of the fact that in his notice Nayan has not given any specific
instances, no day, date, month or year of the said behaviour is stated.
Admittedly, during five months of cohabitation, Pranita hardly stayed
with Nayan for about 14 days between 9.11.2014 to 22.11.2014 and,
thereafter, for 8 days between 7.12.2014 to 14.12.2014. Thus
barring this stay of Pranita with Nayan of about 22 days, for rest of
the period Pranita was staying with in-laws and taking care of them.
Father-in-law in his evidence has stated that when he advised Pranita
to wash and clean the vegetables and prepare it by adding less oil
and chilly powder, she arrogantly retorted to him, so also the
admission given by father-in-law that he gave understanding to
Pranita that while fetching water she should not dip her fingers in
32 FCA 17,18 & 22.20
the water as there may be germs in her fingers. Both these instances
show that Pranita was doing her household duties. Though father-in-
law has stated that they had hired a maid servant to cook food, the
same is not believable in view of the above two circumstances.
Father-in-law has admitted in cross-examination that he has not
given the date, time and place of incident of Pranita abusing them
and also of her threat to send them to lock up in Police Station. Thus,
the evidence of father-in-law is not of any help to Nayan's case.
24. PW-2 Rajiv Zodape's evidence is not reliable in view of his
admission that he was serving under Aman, the elder brother of
Nayan since last 14 years and he was friend of Aman since last 15
years. His evidence in respect of alleged bad behaviour of Pranita
with her in-laws is hearsay, in view of his admission that he has no
personal knowledge about the same and it was based on the
information given to him by Nayan's mother, therefore, the same is
not admissible in evidence. PW-4 Yashodharabai appears to be a
tutored witness in view of her admission that Nayan's family helped
her in her daughters marriage. She has admitted that she stays at 25
to 30 ft. distance in front of the house of Nayan. She has not
mentioned the dates and time of the incident and the names of
witnesses in front of whom Pranita uttered abuses for her in-laws.
33 FCA 17,18 & 22.20
Considering her admission that she was brought to the court by
Nayan, her evidence does not inspire confidence.
25. For the aforesaid reasons, we are of the view that vague
and general allegations are levelled against Pranita by Nayan and his
parents which are not substantiated by leading cogent evidence on
record. Considering the material on record, the learned Family Court
was justified in refusing decree of divorce on the ground of cruelty to
Nayan. We answer point no.(i) accordingly.
26. It is an admitted position on record that Pranita is staying
at her maternal house since 20.2.2015. Before filing the petition for
judicial separation, Nayan had issued notice to Pranita through his
Advocate. Pranita gave reply to the said notice and asked him to
take her for cohabitation within seven days of the receipt of the
notice-reply. Nayan did not take Pranita for cohabitation, on the
contrary, proceeded to file petition for judicial separation. After
withdrawal of the petition for judicial separation, on 4.9.2016
Pranita along with her father, brother-in-law, sister, maternal aunt,
etc. had come to Nayan's house. Nayan admitted that he stopped
Pranita from entering the house. Nayan has further admitted that he
decided to take divorce from Pranita in any situation. Admission on
34 FCA 17,18 & 22.20
the part of PW-3, father of Nayan, that they did not try to bring
Pranita back, though Pranita was staying at her maternal house since
20.02.2015, as they were not ready to take her back for cohabitation,
his further admission that when Pranita tried to enter their house on
4.9.2016, they prevented her from entering the house, in view of this
evience on record, we of the considered view that the learned Family
Court was justified in granting decree of restitution of conjugal rights
in favour of Pranita. We answer point no.(iii) accordingly.
27. The learned advocate for the appellant has heavily relied
upon the decision in V. Bhagat (supra), Samar Ghosh (supra),
Sameersingh (supra) in support of his contention that the marriage
between Nayan and Pranita is irretrievably breakdown. In all the
three cases, the Hon'ble Supreme Court considering the facts came
to the conclusion that the marriage between the parties was
irretrievably broken down and proceeded to grant decree of divorce
on that ground under Article 142 of the Constitution of India. In the
case in hand, there is no material on record to come to the
conclusion that the marriage between Nayan and Pranita was
irretrievably breakdown, therefore, these authorities would not help
the case of Nayan. In any event, no relief can be granted only on
that count.
35 FCA 17,18 & 22.20
In Sau. Lilesh (supra), this court had arrived at the
conclusion that wild and reckless allegations are made by the wife
against the husband and his family members and those were not
proved by the wife which amounted to cruelty. Therefore, this court
in the facts of that case upheld the decision of the Family Court of
granting decree of divorce in favour of the husband. In the case in
hand the facts are different and therefore this decision would not
help the appellant.
In Poonamchand Patil (supra), the learned Single Judge
of this Court at Nagpur Bench on facts held that the wife had treated
the husband with cruelty by filing false reports against him in the
police station in respect of the demand of dowry and also threatened
the husband that she would commit suicide if he did not accede to
her demands. In view of the settled legal position that levelling of
false allegations against the husband and his family members
pertaining to the demand of dowry and failing to prove the same
would tantamount to cruelty, this court granted decree of divorce in
favour of the husband. Such are not the facts of the case in hand
and, therefore, the said decision would not be of any help to the case
of appellant.
In Prajakta Chandpurakar (supra), the Division Bench of
this Court at Nagpur, taking into consideration the cross-examination
36 FCA 17,18 & 22.20
of wife wherein she admitted that she was not treated badly by the
husband and despite the aforesaid position, the wife made reckless
allegations against the husband in regard to the illegal demand of
dowry as well as in regard to the forcible termination of pregnancy,
which were not substantiated, upheld the decree of divorce granted
in favour of the husband on the ground of cruelty. Even facts of case
in hand are not similar and therefore this decision also would not
help the case of appellant.
The decision in Madhu Dhyade (supra) is also rendered in
the different facts and the same is not applicable to the present case.
It would be apt to refer observations of the Hon'ble Supreme Court in
V. Bhagat (supra) in para 21 is as under :
"21.Before parting with this case, we think it necessary to
append a clarification. Merely because there are allegations
and counter-allegations, a decree of divorce cannot follow.
Nor is mere delay in disposal of the divorce proceedings by
itself a ground. There must be really some extraordinary
features to warrant grant of divorce on the basis of pleadings
(and other admitted material) without a full trial.
Irretrievable breakdown of the marriage is not a ground by
itself. But while scrutinising the evidence on record to
determine whether the ground(s) alleged is/are made out
and in determining the relief to be granted, the said
circumstance can certainly be borne in mind. The unusual
step as the one taken by us herein can be resorted to only to
37 FCA 17,18 & 22.20
clear up an insoluble mess, when the court finds it in the
interest of both the parties".
If we apply the above ratio to the facts of the present case, there are
only allegations and counter allegations. No extraordinary features
and/or any admitted material is brought on record by Nayan to
prove the cruelty on the part of Pranita which would entitle him for
the decree of divorce under Section 13 (1) (i-a) of the Hindu
Marriage Act, 1955.
28. Though the Family Court has held that Nayan is able to
maintain Pranita and he has neglected and refused to maintain her,
maintenance was denied to Pranita. The Family Court took into
consideration the certificate Exh.46 issued by Govt. Labour Officer,
which states that Pranita was doing a work of X-ray in Meet X-ray
Clinic and when the Labour Officer visited Meet X-ray Clinic he
found Pranita working there and Pranita informed him that she was
getting salary of Rs.12,000/- per month in cash. Pranita, in her
cross-examination, has denied the fact that she was working in Meet
X-ray Clinic. The Family Court further took into consideration the
photograph placed on record wherein Pranita was seen along with
Mr. Kesare wearing apparel of medical profession. The Family Court
was of the view that prima facie the said photograph appears to be
38 FCA 17,18 & 22.20
taken in laboratory. The Family Court, therefore, held that Pranita,
in her affidavit of evidence, has failed to disclose the fact that she
was working and earning salary. It was also held that Pranita has
suppressed material facts about her earning from the court and
therefore came to the conclusion that Pranita is able to maintain
herself. According to us, the Family Court has taken into
consideration inadmissible evidence while denying maintenance to
Pranita. According to us, the Family Court has erred in coming to
the conclusion that there was no honesty in the conduct of Pranita
and she has every where made false statement on oath about her
income and ability to earn. We deem it appropriate to rely on the
ratio of the Hon'ble Supreme Court in Rajnesh .vs. Neha and others,
MANU/ SC/ 0833/ 2020 wherein guidelines to be followed in the
maintenance matters are laid down. In para 99, it is held that
affidavit of Disclosure of Assets and Liabilities annexed as Enclosures
I, II and III of this judgment, as may be applicable, shall be filed by
both parties in all maintenance proceedings, including pending
proceedings before the concerned Family Court/District
Court/Magistrates Court, as the case may be, throughout the country.
According to us, the material on record does not justify denial of
maintenance to Pranita and we do not agree with the reason given
by the Family Court while rejecting maintenance to Pranita. We are
39 FCA 17,18 & 22.20
therefore of the considered view that the impugned judgment passed
by the Family Court in Petition No. E-395/2015 is unsustainable in
the peculiar facts of the present case and the same needs to be set
aside and the matter is liable to be remanded back to the Family
Court for taking decision on the prayer for grant of maintenance
afresh by giving fair opportunity to both the parties to lead evidence
in accordance with the guidelines given by the Hon'ble Supreme
Court in Rajnesh (supra). We answer point no.(ii) accordingly.
29. For the aforesaid reasons, we pass the following
order :
(1) Family Court Appeal Nos.17/2020 and
18/2020 are dismissed.
(2) Family Court Appeal No.22/2020 is partly
allowed. The impugned judgment of the
Family Court, Nagpur in Petition No.E-
395/2015 is hereby quashed and set aside and
the matter is remanded back to the Family
Court for taking fresh decision on merit, after
giving opportunity to the parties to lead
evidence, in accordance with the guidelines in
Rajnesh (supra).
(3) The Family Court shall decide the proceeding as
expeditiously as possible and in any case within
40 FCA 17,18 & 22.20
a period of six months from the date of receipt
of this order. The parties shall cooperate for
decision within stipulated time.
(4) Parties to bear their own costs.
(N.B. Suryawanshi, J.) (A.S. Chandurkar, J.)
Gulande
