Shri Pradeep S/O Ganpatrao ... vs Sau. Jayashri @ Manisha W/O ...
2021 Latest Caselaw 611 Bom

                                                                    Judgment FAC 349-2014.odt
                                                   1

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

                        FAMILY COURT APPEAL NO. 349 OF 2014


              Shri Pradeep S/o Ganpatrao Bhanarkar,
              Aged about 40 yrs, Occ. Nil,
              R/o Plot No.22, Shriram Wadi,
              Behind Ingle Building,
              Near Sai Mandir, Ayodhya Nagar,
              Nagpur-440 024.                                             .... APPELLANT

                                         // VERSUS //

              Sau. Jayashri W/o Pradeep Bhanarkar,
              Aged about 41 yrs, Occ. Private,
              R/o C/o Laxmanrao Dange, 19,
              Chandra Nagar, Bhagwan Nagar, Nagpur                        .... RESPONDENT

     ----------------------------------------------------------------------------------------------
                       Smt. Pallavi Khaprikar, Advocate for appellant.
                       Smt. Smita P. Deshpande, Advocate for respondent.
     ----------------------------------------------------------------------------------------------

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

DATE : 12 JANUARY, 2021.

ORAL JUDGMENT: [PER: N.B. SURYAWANSHI, J.]

1. This appeal filed by the husband under Section 19 of

the Family Court Act, 1984 takes exception to the judgment and

decree passed by Family Court, Nagpur on 29th April, 2014 thereby

dismissing petition No. A-641/2011, filed by the husband for

divorce.

Judgment FAC 349-2014.odt

2. Husband-Pradeep filed petition under Section

13-1(i-a) and (i-b) of the Hindu Marriage Act seeking divorce from

wife-Jayashri on the ground of cruelty. As per his pleadings, his

marriage with Jayashri was solemnized on 18 th May 2010 at Nagpur

as per Hindu rites. At the time of marriage Jayashri was L.I.C. agent

and it was mutually decided that she would leave the business as

L.I.C. agent and lead the life as a housewife. After marriage Jayashri

used to frequently visit her mother's house and used to stay there

for doing L.I.C. business. When Pradeep used to object about her

stay at mother's place Jayashri used to quarrel with him. Jayashri

also used to take money from husband for doing the L.I.C. business

on the pretext that money given to her by the clients for paying

premium was spent by her and if the money is not deposited

towards premium clients will blame her and her business will be

ruined. Jayashri had gone to her mother's house on 11/06/2010 on

the occasion of Amaosya and stayed there for about 15-20 days.

Thereafter also she used to frequently leave her matrimonial house

and used to stay at her parents house on different pretexts like

religious ceremony, ill health of parents etc. She developed a habit

of staying with her parents for 10-15 days. Jayashri was given some

Judgment FAC 349-2014.odt

gold ornaments at the time of marriage but she melted those

ornaments and made new ornaments without knowledge and

permission of Praddp and his family. Jayashri used to demand keys

of the hotel of Pradeep as she wanted to take control of the

monitory transactions in her hands. Jayashri used to demand

Rs.200/- per day from him for herself. On being questioned she used

to quarrel with the Pradeep. Though Pradeep's marriage with

Jayashri was a second marriage and this fact of the first marriage

and divorce was intimated to Jayashri and her family prior their

marriage itself, afterwards Jayashri started abusing and insulting

Pradeep on that count. Jayashri's behaviour with Pradeep was not

proper. She used to quarrel with him daily and continuously. She

was psychologically pressurizing him on account of his first

marriage. Due to the same Pradeep's health was deteriorating day

by day. He was required to be hospitalized for two days. He was

advised certain tests, but his medical reports were normal. Still

Pradeep's health did not recover and hence his parents decided to

consult and give him medical treatment of psychiatrist Mr. Vivek

Kirpekar. On 15th December, 2010 Jayashri left matrimonial home

telling that she is going to attend religious function of Shri Gajanan

Judgment FAC 349-2014.odt

Maharaj at her maternal aunt's house, though Pradeep was ill at that

time. She locked the almirah and took keys with her. While leaving

she also quarreled with the in-laws. She blamed that Pradeep was a

mental person. On 25th December, 2011 Jayashri's brother visited

restaurant of Pradeep and threatened that Pradeep and his parents

will be implicated in different matrimonial proceedings and they

will be sent to jail. Pradeep therefore lodged complaint to the Police.

It was registered as Non Cognizable case on 26 th December, 2006 at

Hudkeshwar Police Station. Jayashri filed complaint in Women Cell

and in front of members of Women Cell she threatened Pradeep and

his parents. That Jayashri is residing separately from Pradeep since

15th December, 2010 without any reasonable cause. After going to

her parent's house she told everybody that Pradeep was suffering

from mental illness and thereby defamed Pradeep and his family. In

the legal notice issued by Jayashri through her advocate it is stated

that Pradeep is suffering from mental illness and that he was

earning Rs.5,000/- to 7,000/- per day. She also made false

allegations that Pradeep was in habit of drinking liquor and that

Jayashri was driven out of the matrimonial home for want of male

child. Pradeep claimed that due to ill health he is unable to attend

Judgment FAC 349-2014.odt

the family business of restaurant and therefore unable to earn his

livelihood. He claimed that the cause of his ill health was the

harassment by Jayashri and her family members and the same

amounts to mental cruelty. On these pleadings he claimed decree of

divorce on the ground of cruelty.

3. Jayashri in her reply to the petition for divorce denied

all the allegations of Pradeep. In short, she contended that Pradeep

at the time of settlement of marriage did not disclose about his first

marriage and divorce. Only after marriage Jayashri came to know

about his first marriage and divorce. Since the day of marriage

Pradeep's parents did not allow Pradeep and Jayashri to come close.

The marriage between her and Pradeep was not consummated.

They were not given separate bedroom. During her stay at Pradeep's

house Pradeep, Jayashri and Pradeep's mother used to sleep in

drawing room. Immediately after marriage gold ornaments of

Jayashri weighing nine Tolas were taken away by Pradeep's mother.

Though at the time of marriage Jayashri was working as L.I.C. agent

after marriage she was compelled by Pradeep and his family

members to stop working and ultimately her agency was

terminated by the L.I.C. The reason of illness of Pradeep was never

Judgment FAC 349-2014.odt

disclosed to her. Pradeep's parents used to take Pradeep to hospital

after sending Jayashri to her parents house for one reason or the

other. Whenever Pradeep's parents used to go outstation, they used

to compel Jayashri to go to her parent's house and Pradeep used to

stay alone in the house. Jayashri was prevented from talking to

tenants and neighbours by Pradeep and his parents. Jayashri further

pleaded that Pradeep runs a restaurant namely 'Maa Gayatri

Restaurant' on the Ring Road from which he earns Rs.13,000/- to

14,000/- per month. Pradeep has a specious house in Ayodhya

Nagar wherein two to three tenants reside and they give him

Rs.2,500/- each per month rent. Pradeep's father is a pensioner and

gets monthly pension of Rs.12,000/- to 13,000/-. In spite of having

sound financial position Pradeep never spent a single pai for

Jayashri. He always avoided Jayashri for the reasons best known to

him. The behaviour of Pradeep and his parents compelled Jayashri

to leave the matrimonial house.

4. Pradeep filed his affidavit in lieu of evidence reiterating

the pleadings made in the petition. In cross examination he

admitted that he has not mentioned the dates of visits of Jayashri to

her parental house in his petition. He denied the suggestion that he

Judgment FAC 349-2014.odt

was deposing false that he was suffering mental unrest due to

torture of Jayashri. He denied suggestion that marriage was not

consummated. He admitted that for the treatment of his mental

illness his parents used to accompany him to the Doctor. He denied

the suggestion that he never took Jayashri to the said Doctor with

him. He further stated that though Jayashri is ready to cohabit with

him he is not ready to cohabit with her.

5. Jayashri filed affidavit in lieu of evidence in terms of

the pleadings of written statement. In cross examination she

admitted that after marriage she came to know about the mental

illness of her husband. She admitted the Income Tax Return filed by

her in the years 2010-11, 2011-12, 2012-13 at Exhibits 52/1 to 52/3

which were filed in her maiden name. She however denied that she

was a regular income tax payer at that point of time. She further

stated that when she saw medical prescription of her husband, she

came to know that Doctor opined that the Pradeep was suffering

from psychological problem due to his financial crisis as well as

earlier divorce. She admitted to have filed case under Domestic

Violence Act during the pendancy of divorce proceeding.

Judgment FAC 349-2014.odt

6. Learned Family Court after appreciating the evidence

came to the conclusion that Pradeep has failed to prove that Jayashri

treated him with such a cruelty which entitles him for a decree of

divorce. It was also held that the allegations of Pradeep are nothing

but wear and tear of married life. Hence the Family Court refused

decree of divorce.

7. Heard learned advocate for the appellant and the

learned advocate for the respondent.

8. Learned advocate for the appellant-husband submitted

that the husband has proved his case by leading evidence and has

also produced documents on record. However, the Family Court has

failed to appreciate the same and has erred in rejecting the

husband's petition for divorce. Mental cruelty on the part of

wife/Jayashri caused to the husband/Pradeep is sufficiently

established on record therefore the Family Court Appeal deserves to

be allowed and decree of divorce needs to be granted in favour of

husband.

9. Per contra the learned advocate for the respondent-

Jayashri submitted that Pradeep has failed to prove cruelty on the

Judgment FAC 349-2014.odt

part of Jayashree and the Family Court was justified in denying

relief to Pradeep. She submitted that the reasoning given by the

Family Court is correct and no case is made out by the husband to

interfere in the findings recorded by the Family Court. She

therefore, prayed that the Family Court Appeal filed by the husband

may be dismissed with costs.

10. With the assistance of the learned advocate for the

parties, we have perused the record. After hearing rival submissions

following point arises for our consideration.

"Whether the Family Court was justified in denying relief of divorce to husband Pradeep ?"

11. Admittedly the marriage between Pradeep and Jayashri

was solemnized on 18th May, 2010 and since 15th December 2010

they both are staying separately. Thus only for period of

approximately seven months they were staying together. It appears

from the evidence on record that Pradeep was suffering from mental

illness prior to the marriage with Jayashri. He was undergoing

treatment of Psychiatrist for which his parents used to accompany

him. Jayashri was never allowed to accompany him while visiting

Psychiatrist. The evidence led by Pradeep is in the form of vague

Judgment FAC 349-2014.odt

and general allegations. Pradeep has failed to substantiate the

allegations of cruelty caused to him by Jayashri, which would entitle

him for a decree of divorce. In fact, the allegations in the divorce

petition itself are vague and even if taken at their face value they do

not constitute cruelty under Section 13(1) (i-a) of the Hindu

Marriage Act, 1955. Pradeep has admitted in his evidence that he

has not mentioned dates of frequent visits of Jayashri to her

maternal home. He further stated that though Jayashri is ready to

cohabit with him, he is not ready for the same. There is no evidence

on record to prove that due to the cruelty caused to him by Jayashri

he suffered mental illness.

12. After considering the evidence on record we are of the

considered view that the Family Court was justified in rejecting the

decree of divorce to Pradeep by recording a finding that allegations

of Pradeep are nothing but normal wear and tear of married life.

Finding of the Family Court is based on material available on record

and hence the same is acceptable. According to us a plausible view

of the matter on a rational basis and by applying the principle of

preponderance of probability has been taken by the Family Court

and we do not find any other material on record to disturb the

Judgment FAC 349-2014.odt

finding recorded by the Family Court. As a result of aforesaid

discussion we find that the impugned judgment of the Family Court

deserves to be confirmed. The point is answered accordingly. In the

result, the Family Court Appeal is dismissed leaving the parties to

bear their own costs.

13. Professional fees of Mrs. Smita P. Deshpande, learned

Advocate appointed through Legal Aid Committee is quantified at

Rs.3,000/-, which shall be paid to her within a period of one month

from today.

                               JUDGE                               JUDGE




     J.Pethe..