Prashant S/O Bhaskar Dekate vs Yamini W/O Prashant Dekate
2021 Latest Caselaw 4024 Bom

  FCA 31.2018.odt                              1



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

                   FAMILY COURT APPEAL NO. 31 OF 2018

  Pashant s/o Bhaskar Dekate,
  aged about 44 years, Occ. Service,
  R/o Vaibhav Nagar, Dighori, Nagpur.
                                                              ...APPELLANT

                    Versus

  Yamini w/o Prashant Dekate,
  aged about 38 years, Occ. Service,
  R/o C/o Ramkrushna Gedam,
  Plot No. 1, Amba palace, Near Sanjivani Hospital,
  Telephone Nagar, Dighori Chouk, Nagpur.
                                                ...RESPONDENT

  Shri B.W. Patil, Advocate for the appellant.
  Shri S.A. Sahu, Advocate for the respondent.
                          .....

                     CORAM : A.S. CHANDURKAR AND
                              PUSHPA V. GANEDIWALA, JJ.

ARGUMENTS WERE HEARD ON : FEBRUARY 25, 2021. JUDGMENT IS PRONOUNCED ON : MARCH 04, 2021.

JUDGMENT : (PER : PUSHPA V. GANEDIWALA, J.)

This is the husband's appeal under Section 19 of the

Family Courts Act, 1984 (hereafter "Act of 1984", for short)

challenging the judgment and decree dated 14/06/2017

passed by the Judge, Family Court - 4, Nagpur in Petition No.

A-226/2009, thereby dismissed the husband's petition for

divorce under Section 13(1)(i-a) of the Hindu Marriage Act,

1955 (hereafter "Act of 1955", for short) on the ground of

cruelty.

The facts leading to the filing of the present appeal

may be stated as under :

2. The marriage of the appellant/ husband with the

respondent/ wife was solemnized on 11/04/2006 at Nagpur.

The couple is blessed with one son, viz., Samyak, born on

29/08/2007, who is presently in the custody of the

respondent/ wife. After their marriage, the couple started

residing in a rented house at Nagpur. The parents of the

appellant/ husband were residing in their village. Both the

parties are in the profession of teaching.

3. It is the grievance of the appellant/ husband that

the respondent/ wife is of arrogant, whimsical and abnormal

behavior. He was not informed that she was suffering from the

disease Rheumatoid arthritis and hypothyroidism by her

parents. The appellant/ husband has referred to three incidents

which according to him caused mental cruelty to him. The first

was happened during communal program at Deekshabhoomi,

Nagpur. He has stated that when he was offering volunteer

service of serving water to the visitors, the respondent/ wife

insulted him in the presence of several people. The second

incident occurred in Chandrapur at his sister's house, wherein

the respondent/ wife insulted him in the presence of his sister

and her in-laws. And the third one, on the next day, when they

reached Nagpur and at late night, the respondent/ wife threw a

showcase of their house and broke it completely due to her

abnormal behavior.

4. It is further the case of the appellant/ husband that

on 01/01/2007, the respondent/ wife went to her parents'

house without informing him and stayed there for one and half

month.

5. The appellant/ husband has further stated that

during quarrel between them, many a times she demanded for

divorce. It is further alleged that the respondent/ wife also

intimidated him for committing suicide and involving him in a

false criminal case of dowry. Fed-up with her behavior, he filed

the petition for divorce on the ground of mental cruelty.

6. In response to the notice issued to the respondent/

wife, she appeared and filed her counter denying all the

adverse allegations with regard to cruelty and her abnormal

behaviour.

7. In her specific pleading, her main focus is on the

drinking habits of the appellant/ husband. She has stated that

although he was serving as a Lecturer at the Raosaheb Thaware

Junior College, Babulkheda, he was not sharing the household

expenses. With regard to her diseases, she has stated that the

appellant/ husband was informed about the same prior to their

marriage, and he never had any complaint as he used to visit

daily to her parents' house after their engagement.

8. With regard to the incident during communal

program at Deekshabhoomi, the respondent/ wife states as

under :

"After sometime when the respondent had requested the petitioner to come with her for further programme, at that time, the petitioner had got annoyed and had given all the glasses and jug of water to the respondent and ordered her to serve the same and had abused her in filthy language in presence of people and the family members of the respondent."

9. With regard to the incident at Chandrapur at his

sister's house, she states that there also, he drank heavily and

when the respondent/ wife wanted to stop him, he insulted her

in a filthy language in the presence of her sister-in-law and her

relatives.

10. She further states that they reached Nagpur on the

next day and during the night, he drank heavily and was not

able to stand and suddenly fell down on the nearby showcase,

due to which the showcase was completely broken. The

respondent/ wife also stated some incidents during which he

drank heavily.

11. She further specifically pleads that on 13/02/2007,

there was a meeting at her parents' house amongst their

relatives, and during the said meeting, the appellant/ husband

had admitted his mistakes, and gave assurance of good

behavior, and therefore, she came back with him, however, his

assurances lasted only for few days. She states that the

expenses for her delivery were born by her parents, and though

he had received reimbursement from his office, he never repaid

the same to her parents. That he never took care of her during

pregnancy and after delivery.

12. She admits that during January - 2007, she had

been to her parents' house. She explained that she was advised

complete rest as she had fallen down from a motorcycle while

she was pregnant, which was being driven by the appellant/

husband in an inebriated condition.

13. The respondent/ wife has also filed a petition under

Section 9 of the Act of 1955 bearing No. A-325/2009 for the

restitution of conjugal rights, and a petition bearing No. E -

174/2011 for maintenance under Section 125 of the Code of

Criminal Procedure. All these three petitions were tried

together and disposed of by a common judgment.

14. The trial Court framed necessary issues and

recorded evidence as adduced by the parties. Prior to that, the

trial Court made several attempts for reconciliation between

the parties through marriage counselors attached to the Court,

but all attempts turned futile. The appellant/ husband

examined himself as PW1, his landlord as PW2 (Nanda Arakh)

and one of his friends as PW3 (Siddharth Wani). The

respondent/ wife examined herself as DW1 and her father as

DW2 (Ramkrishna Gedam).

15. The Family Court, on the basis of evidence as led by

the parties, documents on record and the arguments on behalf

of both the sides, recorded the finding that the appellant/

husband has failed to prove the ground of cruelty under

Section 13(1)(i-a), and the ground of mental disorder as

contemplated for decree of divorce under Section 13(1)(iii) of

the Act of 1955. The Family Court also recorded the finding

that the respondent/ wife has failed to prove that without any

reasonable cause, the appellant/ husband has withdrawn

himself from her the society. With regard to maintenance, the

Family Court partly allowed the petition, and directed the

appellant/ husband to pay Rs.7,000/- (rupees seven thousand)

per month for the son Samyak towards maintenance. The claim

of maintenance of the respondent/ wife was rejected. The

appellant/ husband impugned this judgment before this Court.

16. We have heard Shri Patil, learned counsel for the

appellant, and Shri Sahu, learned counsel for the respondent.

We have also perused the record with the assistance of both the

learned counsel. The following point arise for consideration of

this Court :

"Whether the appellant/ husband could prove mental

cruelty as contemplated in law for the decree of divorce ?"

17. At the outset, before touching the evidence as led

by the parties, it would be expedient to have a glance at the

settled law on mental cruelty for the decree of divorce.

18. In Mayadevi (Smt) Vs. Jagdish Prasad, reported in

(2007) 3 SCC 136, the Hon'ble Apex Court relied on the

decision of Shobha Rani Vs. Madhukar Reddi, reported in

(1988) 1 SCC 105, and held that to constitute cruelty, the

conduct complained of should be 'grave and weighty' so as to

come to the conclusion that the petitioner 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'.

19. In Praveen Mehta Vs. Inderjit Mehta, reported in

AIR 2002 SC 2582, it has been held that mental cruelty is a

state of mind and feeling with one of the spouses due to the

behaviour or behavioral pattern by the other. Mental cruelty

cannot be established by direct evidence and it is necessarily a

matter of inference to be drawn from the facts and

circumstances of the case. A feeling of anguish,

disappointment, and frustration in one spouse caused by the

conduct of the other can only be appreciated on assessing the

attending facts and circumstances in which the two partners of

matrimonial life have been living. The facts and circumstances

are to be assessed emerging from the evidence on record and

thereafter, a fair inference has to be drawn whether the

petitioner in the divorce petition has been subjected to mental

cruelty due to conduct of the other.

20. Recently in Joydeep Majumdar Vs. Bharti Jaiswal

Majumdar (Civil Appeal Nos. 3786-3787/2020 decided on

26/02/2021), the Hon'ble Apex Court in para 10 has observed

as under :

"10. For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse. The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to

justify dissolution of marriage, at the instance of the wronged party."

21. Keeping the aforesaid broad parameters in mind,

now we proceed to examine the case of the appellant/

husband. First and foremost, with regard to the diseases

Rheumatoid arthritis and hypothyroidism, the respondent/

wife was suffering, admittedly, it is not the case of the

appellant/ husband that the same are venereal diseases in a

communicable form so as to entitle him for a decree of divorce,

in accordance with the law. Secondly, the appellant/ husband

has nowhere stated that because of such diseases, it is difficult

for him to cohabit with the respondent/ wife. Per contra, the

respondent/ wife has proved, through her evidence and her

father's evidence (DW2 Ramkrishna), that the appellant/

husband was already informed about those diseases, and the

same were in a mild form and curable. The appellant/ husband

has not taken any objection when he used to visit her house

daily after engagement. Furthermore, the appellant/ husband

has admitted that after their engagement, he was visiting her

house.

22. With regard to the other incidents of cruelty as

alleged by the appellant/ husband in his pleadings and

evidence, the respondent/ wife in clear and unequivocal terms

explained in her pleadings and evidence as to what exactly had

happened during these incidents, i.e., at Deekshabhoomi, at

Chandrapur and the incident of breakage of showcase, and her

version appears to be more reliable and probable. Interestingly,

there is no cross-examination of the respondent/ wife for her

specific pleadings with regard to these incidents. So, her case

with regard to these incidences went unshattered.

23. With regard to her threats of committing suicide

and involving the appellant/ husband in a false criminal case,

the appellant/ husband could not prove the same as he could

not bring on record any criminal case lodged by the

respondent/ wife against the appellant/ husband or his

relatives during the span of 15 years of their matrimonial life.

This belies the case of the appellant/ husband. The appellant/

husband also could not prove the abnormal, whimsical,

arrogant or rude behaviour of the respondent/ wife. These

allegations appears to be general and omnibus in nature. The

witnesses, i.e., PW2 Nanda and PW3 Siddharth, examined by

the appellant/ husband, also would not be of any help to him

as they have admitted that they didn't go to swear in the

affidavit before the public notary and the appellant/ husband

obtained their signatures at their places. The witness PW3

Siddharth, the friend of the appellant/ husband, was examined

on the incident at Deekshabhoomi. Even if it is assumed that

the respondent/ wife had insulted the appellant/ husband in

the presence of other persons, that itself cannot be held to so

grave and weighty so as to sever the sacred institution of

marriage between the parties.

24. The learned counsel for the appellant/ husband

Shri Patil read out the written statement of the respondent/

wife to the divorce petition, and emphatically submitted that a

perusal of the same would clearly show that the respondent/

wife has made absolutely false, scandalous, baseless and

unfounded allegations against the appellant/ husband which

itself is sufficient for a decree of divorce in favour of the

appellant/ husband. The learned counsel, in support of his

submissions, relied on the following authorities :

1. Ramesh Laxman Sonawane v/s Meenaxi Ramesh

Sonawane & Ors., reported in 2012(1) Mh.L.J. 43.

2. Vijay Kumar Ramchandra Bhate Vs. Neela Vijay

Kumar Bhate, reported in 2003 CJ(SC) 1351.

3. Smt. Nirmala Manohar Jagesha Vs. Manohar

Shivram Jagesha, reported in AIR 1991 Bombay 259.

25. On a careful perusal of her written statement and

her evidence, we do not find that any reckless or baseless

allegations she had made so as to entitle the appellant/

husband for a decree of divorce in the line of judgments in the

cases of Ramesh Sonawane and Vijay Bhate (supra). On the

contrary, she has mentioned several specific instances which

occurred due to his drinking habits which caused her mental

and physical cruelty, which went unshattered. Considering the

quality of evidence led by the respondent/ wife, the instances

as she spelt out in her pleadings and evidence, appear to be

more probable and reliable.

26. The learned counsel for the appellant/ husband

strenuously argued about several material admissions of the

respondent/ wife in her cross-examination. On a perusal of her

cross-examination, it astonishingly reveals that the learned

counsel for the appellant/ husband, for every allegations of

cruelty as alleged by her, asked for the documentary proof, to

which she denied. We could not understand as to how these

admissions would assist the appellant/ husband. There can

hardly be any documentary evidence for the nature of incidents

of harassment as alleged in her pleadings and evidence.

27. A perusal of her entire cross-examination, the

learned counsel for the appellant/ husband could not point out

any material admission on her part or unfounded and

unsubstantiated allegations on her part so as to prove the case

of mental cruelty in favour of the appellant/ husband. On the

contrary, a tenor of her pleadings and evidence would show

that she had to suffer a lot at the hands of appellant/ husband

due to his drinking habits.

28. We found substance in the submission of the

learned counsel for the respondent/ wife that the conduct of

the appellant/ husband, for not filing any petition for the

restitution of conjugal rights nor for the custody of the child,

would unerringly show that the appellant/ husband has lost

interest in his family, and anyhow wanted divorce on the basis

of his own wrong.

29. A cumulative reading of the evidence on record, in

our considered opinion, the appellant/ husband is more at fault

than the respondent/ wife. The wife's case with regard

to cruelty is more probable than the husband's case. The

appellant/ husband could not prove the case for the decree of

divorce, neither on the ground of mental cruelty nor on the

ground of mental disorder as contemplated under law.

30. Considering the specific facts and circumstances of

this case, the aforesaid authorities relied on by the learned

counsel for appellant/ husband would not be of any assistance

to him.

31. In the judgments of Ramesh Sonawane and

Vijaykumar Bhate (supra), the decree of divorce was granted to

the appellant/ husband mainly on the ground of unfounded

and unsubstantiated allegations of the respondent/ wife about

illicit relationship of the appellant/ husband with one lady.

The same is not the case here.

32. In the case of Nirmala Manohar (supra), the Single

Bench of this Court allowed the husband's petition for divorce

mainly on the ground of serious and scandalous allegations of

impotency and lack of manliness of the husband made by the

wife in her written statement.

33. 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 the social status of the

persons involved and their economic conditions and other

matters. In the case in hand, the parties are in the teaching

profession. There is no serious challenge to the liquor habits of

the appellant/ husband as alleged by the respondent/ wife. The

incidents of cruelty as alleged by the appellant/ husband

neither could be proved by him nor are they sufficient to

constitute cruelty so as to compel him to condone such conduct

and continue to live with his spouse. Considering the evidence

on record, we are of the firm view that the material which has

been brought on record by the appellant/ husband is not

sufficient to establish mental cruelty at the hands of the

respondent/ wife.

34. In the circumstances, a well reasoned judgment of

the trial Court can not be disturbed. The appellant/ husband

has failed to make out a case of mental cruelty for the decree of

divorce. The appeal is bereft of any merits and deserves to be

dismissed and the same is accordingly dismissed with costs.

                    JUDGE                               JUDGE

                                    ******
  Sumit