Sau. Kirti Satish Sakhare vs Satish Vinayakrao Sakhare
2021 Latest Caselaw 14152 Bom

   13FCA 61.2016                            1



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

                    FAMILY COURT APPEAL NO. 61 OF 2016

  Sau. Kirti Satish Sakhare,
  aged about 25 years, Occ. Household,
  R/o Maya Nagar, Amravati,
  Tq. & Dist. Amravati.
                                                             ...APPELLANT
                    Versus

  Satish Vinayakrao Sakhare,
  aged about 32 years, Occ. Labour,
  R/o Satnawri, Tq. & Dist. Nagpur.
                                                         ...RESPONDENT

  Shri A.D. Patil, Advocate for the appellant.
  Shri M.P. Kariya, Advocate for the respondent.
                      .....

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

ARGUMENTS WERE HEARD ON : SEPTEMBER 24, 2021. JUDGMENT IS PRONOUNCED ON : SEPTEMBER 30, 2021.

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

After hearing the learned counsel appearing on

behalf of both the parties, at their request, we tried to settle the

dispute between the parties in Chamber, however, both the

parties were adamant to their stand and were not ready to settle

the matter.

2. Before that, two attempts were made before the

Mediator for mediation at the instance of this Court, but they

were also failed.

3. Present is an Appeal filed by the appellant/ wife

under Section 19 of the Family Courts Act, 1984 assailing the

judgment and decree of divorce dated 04/12/2015 passed by

the Principal Judge, Family Court, Amravati in Petition No. A-

5/2014, whereby the marriage between the parties came to be

dissolved.

4. The facts, leading to filing of the present Appeal,

may be stated as under :

i. The marriage between the parties was solemnized

on 09/06/2009 as per the Hindu Rites and Rituals. Out of this

wedlock, they have one child, viz. Mohini, born on 15/07/2010.

The respondent/ husband filed a petition for divorce under

Section 13(a) of the Hindu Marriage Act, 1955 ("the Act of

1955") on the ground of cruelty, wherein he has stated that

after marriage, the appellant/ wife had started her matrimonial

life along with him in his house. That after some days, she

started saying that she does not like him. That he was under the

impression that she would amend her behaviour. He stated that

on 15/08/2009, when he had been to his duty, the appellant/

wife left her matrimonial house without informing anybody on

some pity issue, and stayed at her parents' house for 3-4

months. That on her insistence, he stayed with her at Amravati.

ii. In the meantime, the appellant/ wife delivered a

child. Thereafter, the respondent/ husband brought her to her

matrimonial house at Village Satnavari, District Nagpur. It is

alleged that again, the appellant/ wife left the matrimonial

house by leaving her small daughter immediately after 8-10

days of her coming.

iii. He has further stated that he lodged a report at the

Police Station. As against this, the appellant/ wife had also

lodged a report. There was an attempt of settlement between

the parties, however, she was not ready to stay with him.

iv. He has further stated that as the appellant/ wife was

staying separately from him since 2011, and as she has cleared

her stand of staying separate in a proceedings filed under

Section 125 of the Code of Criminal Procedure for grant of

maintenance, he filed a petition for divorce on the ground of

cruelty.

v. In response, the appellant/ wife, in her written

statement, admitted the fact of marriage and birth of child,

however, denied all the other adverse allegations against her. In

her specific pleading, she has stated that the respondent/

husband's mother used to give mental and physical harassment

to her and that he used to beat her. She referred to one incident

of quarrel for trivial reason and stated that the respondent/

husband and his mother snatched the daughter Mohini from her

and the respondent/ husband called his sisters and brothers-in-

law at his house and called her brother, police patil and

Sarpanch of Village Satnavari, and in the meeting, defamed her

in presence of all. He asked to leave the house with her articles.

There was no alternative before her except to leave the house of

the respondent/ husband. That on the insistence of the

respondent/ husband, she again went to stay at her matrimonial

house and tried her level best to stay there, considering the

future of her daughter, but again, due to mental and physical

harassment, she went to her parents' house.

vi. The appellant/ wife alleges that the respondent/

husband did not use to allow her to sleep and used to give

threats to kill her. Therefore, she left for her parents' house. She

has further stated that on the assurance of respondent/

husband's sister that they will not give ill-treatment to her, she

again came back to her matrimonial house. She has stated that

the respondent/ husband lodged a false report against her, and

was demanding Rs.20,000/- for paying installment of his bike.

When she refused, the respondent/ husband beat her. He

quarreled with her and snatched her gold ornaments from her

person. There was a conciliation before the Mahila Cell on the

promise that the respondent/ husband would return her gold

ornaments, however, he could not amend his behaviour and did

not return the same. He gave her Rs.200/- and driven her out of

the house and since then, she is residing at her parents' house.

vii. After hearing both the sides, learned Trial Court

framed the following issues :

"1. Whether the petitioner proves that after solemnization of his marriage with respondent, she treated him with cruelty?

2. Whether the petitioner is entitled for decree of dissolution of marriage on the ground of cruelty?"

viii. The respondent/ husband, to substantiate his stand,

examined himself below Exh.22. The appellant/ wife examined

herself below Exh.30. The Trial Court, on the basis of evidence

on record and the submissions on behalf of both the parties,

allowed the divorce petition on the ground of cruelty. This

judgment is impugned in this Appeal.

5. We have considered the submissions put forth on

behalf of both the sides and perused the record.

6. At the outset, there is no dispute with regard to the

fact of marriage between the parties. It is also not disputed that

out of the said wedlock, they have one child, presently residing

with the appellant/ wife. A careful perusal of the divorce

petition, filed by the respondent/ husband, except the ground

that the appellant/ wife was not residing with him and was

frequently leaving his house and staying with her parents, there

is absolutely not a single incident of cruelty as contemplated for

decree of divorce under the Act of 1955.

7. A perusal of the cross-examination of the

respondent/ husband, he has admitted that before the Mahila

Cell, he had given an undertaking that he will behave properly

with the appellant/ wife. He has admitted that the appellant/

wife has filed a complaint against him at the Police Station,

Kondhali, District Nagpur on 05/01/2012. On a query being put

to him as to if the appellant/ wife is ready to resume

cohabitation with him, will he be ready to cohabit with her, he

blatantly said no. He has also admitted that he has not paid any

amount towards maintenance for the appellant/ wife and their

small daughter, even there was an order of the Court. All other

suggestions, he has denied.

8. On the contrary, the appellant/ wife, in her cross-

examination, has stated that she lodged the report at the Police

Station as the respondent/ husband snatched her gold

ornaments. She has filed on record a copy of the report. All

other suggestions in the cross-examination, she has clearly

denied.

9. A cumulative reading of the pleadings and evidence

of the respondent/ husband, there is absolutely no case of

cruelty at the hands of the appellant/ wife warranting any

decree of divorce.

10. In this context, the Hon'ble Supreme Court in the

case of V. Bhagat Vs. D. Bhagat (MRS), (1994) 1 SCC 337 has

held that mental cruelty in Section 13(1)(i-a) can broadly be

defined as that conduct which inflicts upon the other party such

mental pain and suffering as would make it not possible for that

party to live with the other. In other words, mental cruelty must

be of such a nature that the parties cannot reasonably be

expected to live together. In the case of A. Jayachandra Vs.

Aneel Kaur, (2005) 2 SCC 22, the Hon'ble Supreme Court has

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. It must be something more serious than

"ordinary wear and tear of married life". The conduct, taking

into consideration the circumstances and background has to be

examined to reach the conclusion whether the conduct

complained of amounts to cruelty in the matrimonial law.

11. In the instant case, considering the overall

testimony of the parties, in our considered view, there was a

reason for the appellant/ wife to stay separately from the

respondent/ husband due to the harassment by him and his

mother. Before the Mahila Cell, he undertook to behave with

the appellant/ wife with respect. Even he has admitted that he

has not paid any amount of maintenance for the appellant/ wife

and daughter. We are at a loss to find out, from the impugned

judgment, as to what weighed the Trial Court to grant decree of

divorce in the absence of any ground made by the respondent/

husband as contemplated in law.

12. Shri Karia, learned counsel for the respondent/

husband, harped on the point that the appellant/ wife has

admitted, in the maintenance proceedings, that she is not ready

to cohabit with him. In our considered view, this is not a

sufficient ground to infer cruelty on part of the appellant/ wife.

On the contrary, the respondent/ husband, in his cross-

examination in the said proceedings, expressed his denial to

stay with the appellant/ wife, even if she is ready to stay with

him. Had the respondent/ husband desired to stay with the

appellant/ wife, then instead of filing a petition for divorce, he

would have filed a petition for restitution of conjugal rights. The

Trial Court, in the impugned judgment, has discussed the

pleadings and evidence of the appellant/ wife as if the petition

is filed by her, and that she was reluctant to join the company of

the respondent/ husband and that entire burden of proof is

casted upon the appellant/ wife. The Trial Court has not

considered the purport of the term "cruelty" as interpreted by

the Hon'ble Supreme Court so also by this Court in umpteen

number of cases.

13. In our considered view, the Trial Court has failed to

appreciate the evidence on record in its correct perspective, and

therefore, the impugned judgment and decree of divorce cannot

be sustained in law, and deserves to be set-aside. Hence, the

following order :

ORDER

i. The Appeal is allowed.

ii. The judgment and decree of divorce dated

04/12/2015 passed by the Principal Judge, Family Court,

Amravati in Petition No. A-5/2014, is quashed and set-aside.

iii. In the circumstances, Petition No. A-5/2014, filed

before the Court of Judge, Family Court, Amravati, stands

dismissed with costs.

                    JUDGE                                         JUDGE
                                          ******
  Sumit