Murlidhar S/O Dattuji Thote vs Sau. Pushpa W/O Murlidhar Thote
2021 Latest Caselaw 1529 Bom

FCAs 37,64&65-15                              1            Common Judgment

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR.
                 FAMILY COURT APPEAL No. 37/2015
Murlidhar s/o Dattuji Thote,
aged about 46 years, Occ: Service,
R/o Mile No.1, Saoner, Tah. Saoner, Distt. Nagpur                 APPELLANT

                               .....VERSUS.....

Pushpa w/o Murlidhar Thote,
Aged about 45 years, Occ: Household,
R/o Galli No.4, Nandanwan Zopadpatti,
I/f Mate's House, Rajendra Chowk, Nagpur.                       RESPONDENT

                                       WITH
                  FAMILY COURT APPEAL NO. 64/2015
Murlidhar s/o Dattuji Thote,
aged about 46 years, Occ: Service,
R/o Mile No.1, Saoner, Tah. Saoner, Distt. Nagpur                 APPELLANT

                               .....VERSUS.....

Pushpa w/o Murlidhar Thote,
Aged about 45 years, Occ: Household,
R/o Galli No.4, Nandanwan Zopadpatti,
I/f Mate's House, Rajendra Chowk, Nagpur.                       RESPONDENT

                                WITH
                    FAMILY COURT APPEAL NO.65/2015

Murlidhar s/o Dattuji Thote,
aged about 46 years, Occ: Service,
R/o Mile No.1, Saoner, Distt. Nagpur                              APPELLANT

                               .....VERSUS.....

Pushpa w/o Murlidhar Thote,
Aged about 45 years, Occ: Household,
R/o Galli No.4, Nandanwan Zopadpatti,
I/f Mate's House, Rajendra Chowk, Nagpur.                       RESPONDENT


                Smt. M.N. Hiwase, counsel for the appellant.
                Shri R.R. Rathod, counsel for the respondent.
 FCAs 37,64&65-15                             2            Common Judgment

            CORAM : A.S. CHANDURKAR AND N.B. SURYAWANSHI, JJ.

DATE : 22ND JANUARY, 2021

ORAL JUDGMENT (PER : A.S. CHANDURKAR, J.)

All these appeals can be conveniently decided by this common

judgment especially in view of the fact that the Family Court by its

common judgment dated 26.12.2014 has decided the proceedings

together.

2. The facts giving rise to the present proceedings are that the

appellant and the respondent were married on 23.06.1989. According to

the appellant-Husband, the behaviour of the respondent-Wife was not

good and she was not performing her marital duties as required. She

used to leave the matrimonial house without informing her husband. It

was alleged that the wife used to go to the house of one Gangadhar

Dhoble by stating that he was her relative. The wife started maintaining

illicit relations with him and this fact was stated by the persons in the

vicinity of their house. Further according to the appellant, the character

of the wife was not good and he had heard that the people in the locality

were talking about his wife having illicit relations with a police constable.

On 24.05.1990 when the husband had come home without going for his

duty, he noticed that the wife and the said police constable were together

at their house. It was further the grievance of the husband that the wife

had deserted him since long and he could not live with her because of her FCAs 37,64&65-15 3 Common Judgment

adulterous life. Both of them were living separately from 24.06.1990.

Thus, on the ground that the marriage between the parties had broken

down and there was no hope of reconciliation the husband on 22.09.2009

filed petition bearing No.A746/2009 seeking dissolution of the marriage

under the provisions of Sections of 13(1)(ia)(ib) of the Hindu Marriage

Act (for short 'the said Act').

3. The wife in turn initiated proceedings bearing No.C-34/1993

for enhancement in the amount of maintenance while the husband filed

petition bearing No.C-103/2008 for cancelling the order granting

maintenance..

4. Before the Family Court, the parties completed their

pleadings after which they led evidence in respect of their stands as

taken. The learned Judge of the Family Court by his common judgment

dated 26.12.2014 recorded a finding that the husband had failed to prove

that the wife had treated him with cruelty after solemnization of the

marriage. He had also failed to prove that the wife had deserted him for a

period of not less than two years immediately before presentation of the

petition. Accordingly petition No.A-746/2009 came to be dismissed. This

adjudication was challenged in Family Court Appeal No.37/2015. In the

proceedings for enhancement in the amount of maintenance the Family FCAs 37,64&65-15 4 Common Judgment

Court directed payment of amount of Rs.5,000/- per month as

maintenance from the date of filing of the petition. This adjudication is

challenged in Family Court Appeal No.64/2015. Similarly, the

proceedings for cancelling the grant of maintenance came to be dismissed

and that adjudication has been challenged by the husband in Family

Court Appeal No.65/2015.

5. Smt. M.N. Hiwase, learned counsel for the husband submitted

that the husband had led sufficient evidence on record to prove that the

conduct of the wife was of such a nature that it resulted in cruelty to the

husband. It ws the specific case of the husband that the wife had illicit

relations with Gangadhar Dhoble and he had led evidence in that regard

to prove that on many occasions his wife and said Gangadhar Dhoble

were seen together. Similarly the allegations as made against the wife

and her illicit relations with the police constable had also been

substantiated. On 24.05.1990 the husband had returned home without

going for his duty when he had witnessed the presence of said police

constable at his residence along with his wife. It was submitted that

besides amounting to adultery such conduct also resulted in cruelty by the

wife. On that basis, the husband ought to have been granted a decree for

divorce on the ground of cruelty. The Family Court was not justified in

giving importance to the non-joinder of Gangadhar Dhoble or the police FCAs 37,64&65-15 5 Common Judgment

constable as respondents in the proceedings. Moreover, the husband had

taken steps to implead them as parties but for want of their correct

address they could not be served in the proceedings. It was then

submitted that from 24.06.1990 wife had been residing separately and

had deserted the husband. For a period of almost nineteen years, the

wife had not cohabited with the husband and on that ground also the

Family Court ought to have granted a decree of divorce on the ground of

desertion. The evidence on record was not appreciated in the proper

perspective thus causing prejudice to the case of the husband.

On the aspect of enhancement in the amount of maintenance

it was submitted that the husband was getting salary of about Rs.10,000/-

per month and therefore grant of maintenance at Rs.5,000/- was not

justified in the facts of the case. The Family Court had proceeded to

enhance the amount of maintenance without any justifiable reason. It

was submitted that by setting aside the impugned judgment, the decree

for divorce on both counts was liable to be passed and the amount of

maintenance as granted ought to be reduced.

6. On the other hand Shri R.R. Rathod, learned counsel for the

respondent-Wife submitted that the allegations as made in the

proceedings were not substantiated by the husband. The wife had

specifically stated that Gangadhar Dhoble was her maternal cousin and FCAs 37,64&65-15 6 Common Judgment

was thus related to her. There was no evidence on record to indicate any

illicit relations with the police constable. On the contrary, the wife on

24.05.1990 had filed a complaint with Police Station Saoner and the said

police constable was attached to that police station. In fact on

24.05.1990 the husband had been arrested by the police authorities and

on that count such wild allegations had been made against the wife. He

further submitted that the witness examined by the husband had clearly

admitted in his cross-examination that the contents of his affidavit were

dictated by the husband to his counsel. His evidence was therefore not

credible. He further submitted that it was on account of the conduct of

the husband that the wife was required to reside away from him.

Moreover the wife had brought on record substantial material to indicate

that the husband had contracted marriage with one Laxmibai and

thereafter with one Jaya. The husband could not be permitted to take

advantage of his own wrong and the Family Court therefore rightly held

that the allegations made were not proved. On the quantum of

maintenance the learned counsel submitted that there was no reason to

modify the amount of maintenance granted by the Family Court. It was

thus submitted that there was no reason to interfere with the impugned

judgment and the appeals were liable to be dismissed.

7. In the light of aforesaid submissions, the following points FCAs 37,64&65-15 7 Common Judgment

arise for determination:-

(a) Whether the appellant has proved that the respondent has treated him with cruelty?

(b) Whether the appellant has proved that the respondent had deserted him without any reasonable cause?

(c) Whether the respondent is entitled to claim maintenance from the appellant and whether quantum of maintenance deserves to be modified?

8. We have heard the learned counsel for the parties at length

and with their assistance we have also perused the records of the case.

Insofar as the prayer for grant of divorce on the ground of cruelty under

Section 13(1)(i-b) of the said Act is concerned, it was the specific case of

the husband that the wife was living an adulterous life by maintaining

illicit relations with one Gangadhar Dhoble and thereafter with a police

constable named Pali. It was further pleaded that on account of such

behaviour of the respondent the appellant underwent cruelty and hence

was entitled for a grant of decree of divorce. Perusal of the evidence led

by the appellant indicates that except for making these allegations, there

is no evidence brought on record to indicate that there was any basis in

the said allegations. In his cross-examination the appellant admitted that

Gangadhar was the maternal cousin of the respondent and that he was

married and had children. The appellant admitted that he had not

mentioned the names of his relatives and neighbours who had allegedly FCAs 37,64&65-15 8 Common Judgment

seen the respondent residing with Gangadhar as his wife. The appellant

examined one Prashant Chaudhari to substantiate his stand but the

said witness in his cross-examination admitted that the contents

of his affidavit were dictated by the appellant after which it was

reduced in writing. It is seen that the allegations as made by the

appellant with regard to the adulterous behaviour of the respondent

were vague and no details whatsoever were given of the same. On

the contrary, the respondent in her deposition stated that on

24.05.1990 the appellant was arrested by Saoner police station and

said Pali was attached to that police station. Since the appellant had

levelled allegations about the adulterous behaviour of the respondent

it was necessary for the appellant to have proved the same at least

on the touchstone of preponderance of probabilities. On considering

the entire material on record, the learned Judge of the Family Court

found that the same was insufficient to conclude that the appellant had

proved his case that on account of such behaviour of the respondent the

appellant had undergone cruelty. Moreover reference has been made to

the provisions of Section 23(1)(d) of the said Act in the light of the

pleadings of the appellant that the cause of action for seeking relief

according to the appellant arose on 24.06.1990 while the proceedings for

divorce had been filed after about nineteen years in the year 2009. We

do not find any reason to interfere with this finding recorded by the FCAs 37,64&65-15 9 Common Judgment

Family Court.

9. As regards the aspect of desertion it is the case of the

appellant that from June-1990, the respondent had left the

matrimonial home. In this regard if the evidence of the respondent is

perused the same indicates that on 24.05.1990 she had filed a

complaint against the appellant with Police Station Saoner after which

the appellant came to be arrested. It was further pleaded by the

respondent that the appellant used to suspect the character of the

respondent and the appellant had contracted marriage with three

different ladies. In his evidence the appellant was confronted with the

voters list of Ward No.2 at Exhibit 35 to indicate that in the said voters

list at Serial Nos.829 and 830 the names of appellant and his wife Aruna

were mentioned. Similarly he was also confronted with the marriage

invitation card of the appellant with one Laxmibai. Yet another document

at Exhibit 37 showing one Jaya as his wife was also brought on record.

Though it is true that the appellant denied the suggestion of having

contracted three marriages, this material on record is sufficient to infer

that the respondent did not desert the appellant on her own but it was

the appellant who was doubting the respondent because of her alleged

adulterous life which was not duly proved. On consideration of this

material on record it was found that the appellant was not entitled to a

decree for divorce on the ground of desertion. We do not find any reason FCAs 37,64&65-15 10 Common Judgment

to interfere with that finding.

10. Insofar as the direction to pay maintenance which was

thereafter enhanced to Rupees Five Thousand per month, it is found that

this order was passed on 26.12.2014. There is no exceptional reason

made out to set aside that order or to reduce the quantum of

maintenance. Though it was urged on behalf of the appellant that the

appellant had retired from service, it is found that the amount of

maintenance of Rupees Five Thousand per month as granted is not so

exorbitant to reduce the same. The points as framed are answered

accordingly.

11. As a result of the aforesaid discussion, the common judgment

of the Family Court dated 26.12.2014 in Petition No.A-746/2009,

Petition No.C-34/2013 and Petition No.C-103/2008 is confirmed. Family

Court Appeal Nos.37/2015, 64/2015 and 65/2015 accordingly stand

dismissed leaving the parties to bear their own costs.

          (N.B. SURYAWANSHI, J.)             (A.S. CHANDURKAR, J.)


APTE


Rohit             Digitally signed by
                  Rohit Apte

Apte              Date: 2021.01.28
                  15:45:27 +0530