Bombay High Court
Mr. Sameer Arjun Waghmare vs Mrs. Sunita Sameer Waghmare on 6 September, 2023
Bench: Nitin W. Sambre, Sharmila U. Deshmukh
2023:BHC-AS:26019-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 176 OF 2014
WITH
FAMILY COURT APPEAL NO.177 OF 2014
WITH
INTERIM APPLICATION NO.1871 OF 2022
Mr. Sameer Arjun Waghmare
Aged 35 years, Hindu, Indian Inhabitant,
Occupation: Service, residing at
Flat No.002, Om Shree Sai Darshan Co-op.
Housing Society,
Sodawala Lane, Borivali (West),
Mumbai 400092 ... Appellant
Versus
Mrs. Sunita Sameer Waghmare,
Aged 32 years, Hindu, Indian Inhabitant,
Occupation: self employed, residing at
31, Nausha Compound, Welfare Society,
Pimpri Pada Malad (East),
Mumbai 400097 ... Respondent
----
Mr. Laxmikant M. Shukla alongwith Ms. Heena Lambate, Advocates
for the Appellant in both Appeals.
Mr. Shreesh Oak i/by S.C. Legal for Respondent Nos.1 and 2.
----
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CORAM : NITIN W. SAMBRE &
SHARMILA U. DESHMUKH, JJ.
DATE : September 06, 2023.
JUDGMENT : (Sharmila U. Deshmukh, J.):
1. Both the Family Court Appeals arises out of the common
judgment and decree dated 7th April, 2014 passed by Family Court,
Mumbai in Petition No.A-2722 of 2009 and Petition No.C-11 of 2011.
By the impugned common judgment and decree, the Family Court
dismissed the Petition No.A-2722 of 2009 filed by the Appellant
husband seeking dissolution of marriage and allowed the petition
No.C-11 of 2011, filed by the Respondent wife seeking maintenance.
The Appeals have been preferred by the Appellant husband. Both the
Appeals were heard together and is being decided by this common
judgment. The Appellant husband is referred to as Petitioner and the
Respondent wife is referred to as Respondent.
2. The marriage between the parties has been solemnized
on 24th January, 2007 according to Hindu Vedic Rites and there is no
issue born of the wedlock. Petition No.A-2722 of 2009 was instituted
by the petitioner-husband Sameer Waghmare seeking dissolution of
marriage under the provisions of Section 13 (1)(i-a)(i-b) of the Hindu
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Marriage Act, 1955. Petition No C-11 of 2011 was instituted by the
Respondent wife under the provisions of Section 18 (2)(a)(b) of the
Hindu Adoption and Maintenance Act, 1956 seeking monthly
maintenance of Rs.30,000/-, residence and litigation costs.
PLEADINGS:
3. The case of the Petitioner in Petition No.A-2722 of 2009
can be briefly summarised as under:
(a) Within few months of the marriage, disputes arose
between the parties and all attempts for reconciliation
between the parties failed.
(b) As the honeymoon was delayed till February-2007 due to
the Petitioner's educational course, the Respondent was
upset during the honeymoon and quarreled on petty
matters.
(c) Respondent was aware that she had to live in a joint
family, however, the Respondent started complaining and
wanted to stay separately.
(d) Respondent was talking till late night on mobile and
would not divulge with whom she was talking.
(e) If the Petitioner did not permit the Respondent to visit her
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parents' house, she used to become angry with the
Petitioner.
(f) Respondent did not respect the Petitioner's parents and
did not look after them.
(g) On 21st October, 2008, the Respondent had picked up
quarrel with the Petitioner and his parents, and after the
Petitioner left for his office, the Respondent quarrelled
with his parents and abused them and took her clothes
and ornaments and left the matrimonial house.
Thereafter, the Petitioner's parents removed him from the
matrimonial house and he is residing in the office.
(h) Respondent had flatly refused to come back to the
matrimonial house when the parents of the Petitioner and
his relatives tried to reconcile the matter. Subsequently,
legal notice was sent to the Respondent on 14 th
November, 2009 seeking divorce by mutual consent,
however, the same was denied by reply notice.
4. During the pendency of the proceedings, the pleadings
before the Family Court came to be amended to incorporate the
subsequent event of lodgment of criminal complaint by the
Respondent with Borivali Police Station on 24th September, 2013
leading to registration of FIR No.486 of 2013 on 22 nd October, 2013
for the offences under Sections 498-A, 406, 341, 323, 504, 506 Part-II
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read with 34 of the Indian Penal Code, 1860 against the Petitioner
and his parents. Anticipatory Bail Application No.500 of 2013 was
filed before the Sessions Court and interim bail was granted. It was
pleaded that filing of the criminal case against the Petitioner and his
parents have lowered the reputation before the public at large and
the allegations made which are contrary to the facts are baseless and
as such amounts to cruelty. There was no written statement filed by
the Respondent to the amended portion of the petition.
5. In the written statement, the case of the Respondent was
of denial and counter allegations briefly stated is as under:
(a) Petitioner wants to divorce the respondent so that the
Petitioner could remarry a Muslim-girl with whom the
Petitioner has an illicit relationship, as few days after the
marriage, the Petitioner's mother told the Respondent to
divorce the Petitioner as the Petitioner is having the
affair with the Muslim-girl. When she confronted the
Petitioner about this the Petitioner started quarreling and
abused her.
(b) During the honeymoon, the Petitioner was always busy
on the mobile phone and was not discussing freely with
the Respondent.
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(c) For two to three months, they were living a normal
married life and thereafter there restrictions imposed
upon the Respondent. The Petitioner become very
possessive about her and did not permit anybody talking
to her. Petitioner was extremely short tempered and
would loose control if the Respondent disagreed with
him. Petitioner is in habit of drinking and used to come
late at night and used to quarrel with her in most filthy
language. The mother of the Petitioner used to abuse the
Respondent by saying that she and her parents are
beggars.
(d) Her entire matrimonial life was nightmarish experience
for her and she never experienced such poor treatment
in her life nor had she met such mean-minded and
miserable persons as the Petitioner and his parents. She
was treated like a servant and while the Petitioner and
his family enjoyed watching TV, the Respondent used to
do all the house-work. The Petitioner and his family
members intentionally removed the maid servant from
the house which compelled the Respondent to do all the
house work. She was treated with inhuman cruelty like
slave.
(e) In the month of March 2009, the Petitioner and his
parents hatched a plan to remove the Respondent from
the matrimonial house and accordingly, the petitioner's
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parents went to Solapur and the Petitioner was alone
with the Respondent in the matrimonial house. On 7 th
March, 2009, the Petitioner picked-up a quarrel with the
Respondent and asked her to leave matrimonial home
immediately and forcibly took the respondent with him
and left her at her parents' place and since then i.e. from
7th March, 2009 the Respondent is staying with her
parents.
(f) On 15th April, 2009, the mother of the Petitioner visited
the respondent's parents house and created a big scene
by quarreling and abusing in most filthy language and
asked the respondent to divorce the Petitioner and that
the petitioner and his mother offered the Respondent
Rs.2 Crore and flat and good maintenance in exchange
of divorce.
6. In Petition No.C-11 of 2011, the Respondent has
reiterated the contents of the written statement. It was contended
that on 7th March, 2009, the Petitioner had forcibly removed the
respondent from the matrimonial house and dropped her to parents'
place by his own car. It was pleaded that the respondent-wife has
been treated with tremendous mental cruelty and that the Petitioner
is not ready to maintain the Respondent. As regards the income of the
Petitioner, the case of the Respondent was that the Petitioner is a
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qualified engineer and owner of M/s. Sameer Construction and a
partner with his brother Sunil in the firm named M/s.Sunil
Construction. The Petitioner and his parents are owners of Sulochana
Nursing Home and own hotel named Sairaj Resorts at Solapur and
agricultural land. The Petitioner is a trustee in Om Sai Super Specialty
Hospital situated at Borivali, Mumbai. The Respondent contended
that the income of the Petitioner and his family is about Rs.5,00,000/-
per month, apart from the other income from the landed properties in
Solapur whereas the Respondent is not employed and has no source
of income to maintain herself.
7. In the written statement filed in Petition No.C-11 of 2011,
after denying the contentions of the Respondent, the case of the
Petitioner was that the Respondent is educated and self-employed and
had been working prior to the marriage and is presently earning
Rs.3,000/- p.m.
8. The Petitioner claimed to be working with M/s. Sameer
Construction drawing monthly salary of Rs 10,000/. It was contended
htat the business of M/s. Sunil Construction and Sairaj Resorts
belongs to father of the Petitioner, Arjun Anant Waghmare, that M/s.
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Sameer Construction is a partnership firm and the partners are
Kishor Kantilal Maniyar, Naina Kishor Maniyar and Arjun Anant
Waghmare. It was pleaded that the Petitioner is non functional
director of Sulochana Nursing Home and is not paid any
remuneration.
EVIDENCE:
9. The Petitioner examined himself and the Respondent has
examined herself. Alongwith oral evidence both parties have
produced certain documentary evidence.
10. The Petitioner adduced oral evidence and documentary
evidence produced on record was proof of marriage, the complaints
addressed to the police station on 7 th July, 2009 and 5th November,
2009, the salary certificate issued by the firm M/s. Sameer
Construction dated 5th January, 2011, the certificate of his Chartered
Accountant, copy of the legal notice dated 14 th November, 2009
addressed by the Petitioner to his Advocate and the response dated 4 th
December, 2009.
11. In the cross-examination, the Petitioner has given various
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admissions as regards the financial capacity of the Petitioner and his
family members. It was admitted that the entire marriage expenses
were born by his family; that since 2004 he was working with
M/s.Sameer Construction Company in which his father held 20%
stake in the company and other 80% share were held by other
partners; that the partnership firm was constituted in 1997 by his
father and prior thereto his father was may be dealing with in real
estate business. He has further admitted that Sulochana Nursing
Home is the family business of his family and that Om Sai Super
Specialty Hospital belongs to his father. He has further admitted that
his family owns the resort by name Sairaj Resorts, which belongs to
his father. He has admitted that his father had allotted two separate
accommodation for his two married brothers.
12. In respect of his own income, he admitted that he is
diploma holder in civil engineering; that he is having investment in
LIC; that he had visited Thailand in June, 2012; that he contested the
BMC elections in February-2012.; that he is owner of Vento Car which
has been gifted by his father and that the car loan is in the name of
his father and his father is paying the EMIs. He has also admitted that
he is director of Om Sai Super Specialty Hospital and Sulochana
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Nursing Home. He has admitted that he contested BMC elections and
had spent an amount more than 3 lakhs which he has raised by
borrowing from his father and balance amount from the third parties
in respect of which an account of his expenditure was submitted
during election campaign.
13. In the cross-examination, he has admitted that he does
not have any proof to show that he is residing in the office of his
father since 2009 to 2012; that no complaint has been lodged by the
partners of partnership firm other than his father in the police and
that no eviction proceedings have been initiated by his father. He has
admitted that he consumes liquor but has denied the suggestion that
he was in the habit of returning home after consuming the liquor.
14. In the cross-examination, the Petitioner has deposed that
the Respondent used to insult the Petitioner in front of his parents
and used to demand separate accommodation. Pertinently in the cross
examination, the suggestion given was that the Respondent used to
harass the Petitioner on petty issue like his mother had asked the
housemaid to come late, that like his brother they should start living
away from the parents and insulting his parents by giving back
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answers, which has been denied by the Petitioner.
15. He has deposed in the cross-examination that after 2
and ½ months, the Respondent started demanding separate residence
and started quarreling on that point. The Petitioner has admitted that
he has not given details of the date and time of quarrel and instances
of cruelty alleged to have been inflicted by the Respondent on him
and his parents. The suggestion given was that the Petitioner had
driven the Respondent out of the house on 7th March, 2009, that his
parents were not at home and that the Petitioner took the Respondent
in his own care and left her to her maternal home.
16. The Respondent filed her affidavit in lieu of evidence and
has reproduced the contents of the written statement. The
Respondent produced the documentary evidence viz. the copy
photograph of marriage, copy of invitation card, notice to Applicant-
husband through advocate, copy of complaint letter to Police Station,
Borivali, dated 7th July, 2009, copy of letter to Police Station, Borivali
dated 5th November, 2009, copy of complaint by father to police
station dated 27th July, 2009, copy of notice issued dated 14th
November, 2009, brochure of Sameer Constructions, invitation card of
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Hotel Sairaj family resort at Solapur which was owned by the
Applicant-husband, scrutiny of nomination of the Applicant-husband
in BMC election 2012, payment receipt of BMC dated 31 st January,
2012 paid by Applicant-husband, letter of nomination of election
commission, affidavit of Applicant-husband in BMC election, payment
receipt dated 25th January, 2012, nomination for dated 22 nd January,
2012.
17. During her cross-examination, she has admitted that her
husband was not beating her or abusing her. She has further admitted
that they had one maid servant in the matrimonial house. She has
further admitted that she is not aware as to whether her husband is a
partner in Sunil Construction and hotel Sairaj Resorts. She has further
admitted that she is not aware if her husband is getting any
remuneration from Sulochana Nursing Home and Om Sai Super
Specialty Hospital. During her cross-examination, the Respondent has
stated that her husband is getting salary Rs.40,000/- p.m. from
Sameer Construction. She has admitted that initially her husband was
working as a site supervisor in Sameer Construction and now he is a
partner in the firm.
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18. As regards her case that the Petitioner and his parents
had subjected her to cruelty, in her cross-examination, she has stated
that he used to return home at late night and used to shout at him if
she asked him to take her out. She has stated that during the
honeymoon, the Petitioner used to talk on her mobile and that she
doubted that he was talking with her special friend. She has stated
that she was scared of her husband because he used to shout at her.
19. During her cross-examination, she has admitted that she
does not know the name of Muslim-girl, with whom the Petitioner has
affair and that she had never seen her and does not know where she
lives. She has stated that he used to come home in drunken condition
and had an affair with the girl. In response to specific question as
regards the allegation of abuse by the Petitioner, the Respondent
stated that he was not abusing her but telling her that she is not
intelligent. As regards the mental and physical cruelty she has stated
that the Petitioner and his family used to force her to do house work
and used to ask her as to why she is not leaving matrimonial house.
She has stated that the petitioner used to create a scene to insult her
in the eyes of people and used to abuse her and her parents in filthy
language by saying that she was insane. She has further admitted that
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she has not filed any police complaint against the Petitioner for
driving her out of the house and quarreling with her on 7 th March,
2009 and that there is no petition filed for restitution of conjugal
rights. She further admitted that her reply notice does not bear the
facts that the Petitioner and her mother offered her a sum of Rs.2
crore in exchange of divorce. During her cross-examination, she has
admitted that the car owned by her husband was gifted by her father-
in-law.
20. An additional affidavit of evidence came to be filed by the
Petitioner, wherein he has deposed as regards the filing of complaint
on 24th September, 2013, and the registration of FIR under the
various offences of the IPC. He has further deposed that the
allegations made in the FIR is that in July, 2013, the Petitioner and
his family had caused mental agony and hardship to the Respondent
and had called upon the Respondent not to reside in the matrimonial
house. He has further deposed that the allegation of the FIR that he
was having illicit relationship with Yasmin Sayyed.
21. In the cross-examination, the Petitioner has stated that he
does not know Yasmin Sayyed. He has further denied the suggestion
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that Yasmin Sayyed worked with Sulochana Nursing Home. He has
admitted that he had falsely stated that the High Court had asked the
police not file chargesheet and he has admitted that the High Court
had directed the police to continue with the investigation.
FINDINGS OF TRIAL COURT:
22. The trial Court framed the following issues:
(i) In Petition No.A-2722/2009, as under:
Issues Findings
1. Does the Petitioner prove that the No
Respondent has after the solemnization
of marriage, treated the Petitioner with
cruelty?
2. Does the Petitioner prove that the No.
Respondent has deserted the Petitioner
for a continuous period of more than
two years immediately preceding the
presentation of the Petition?
3. Is the Petitioner entitled to a decree of No.
dissolution of Marriage, as claimed?
4. What order and decree? Petition stands
dismissed.
(ii) In Petition No.C-11/2011, as under:
Issues Findings
1. Does the Petitioner prove that the Yes
Respondent has deserted her without
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reasonable cause and without her
consent or he has willfully neglected
her?
2. Whether the petitioner is entitled for Rs.30,000/-
maintenance as claimed? Per month
3. Whether the petitioner is entitled for Yes. As per
separate accommodation as claimed Final order
by her?
4. Whether the Petitioner is entitled for Yes. As per the
litigation Expenses? Final order
5. What order and decree? Petition
stands
Decreed.
23. The trial Court held that the grounds of divorce are either
vague or pleaded without any specifications; that there was no direct
evidence as the Petitioner has not examined his parents and that not
a single word of insult is properly proved; that except the alleged
incident dated 22nd October, 2008, there is no other incident which
can be said to be grave or weighty, and the admission that he has not
given specific details of the quarrels and instances of cruelty alleged
to have been inflicted by the Respondent. The trial Court held that
the testimony of the Petitioner is not creditworthy as he has come up
with false theory to declare incorrect residence address and that he
had falsely stated that the High Court had asked to police not to file
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chargesheet, when in fact the High Court directed the police to
continue with the investigation. The trial Court held that the
Petitioner's father had created false record to show that he is not
living in matrimonial house and in view of Section 23 (1) of the
Hindu Marriage Act, held that a person taking disadvantage of his
own fault cannot take divorce. As regards the lodging of the
complaint and the FIR by the Respondent, the trial Court held that as
the trial has not yet begun making any comment on the truthfulness
of the allegation of the complaint would be interfering with the trial
of the Court.
24. The trial Court held that the suggestion given to the
Respondent about involvement with her friend Patil in absence of
pleadings has subjected the Respondent to cruelty. The trial Court
held in face of admission of husband that he consumed liquor that
coming home late at night in drunken condition is mental agony to
wife. The trial Court considered that the Petitioner belongs to upper
strata of society and shouting at wife and calling her insane amounts
to cruelty.
25. As regards the issue of maintenance the trial Court
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observed that the Petitioner has admitted that he worked with
Sameer Construction since 2002 and disbelieved that the Petitioner is
not a partner in the partnership firm. The Trial Court considered the
admissions of the Petitioner about his visit to Thailand in June-2012;
he is owner of Vento Car; that the Petitioner has contested the BMC
elections in which he has spent sum of Rs.3 lakhs and the
documentary evidence produced by the Respondent and believed the
version of the Respondent wife that the Petitioner and his family
earning Rs.5,00,000/- p.m. and the Petitioner is living with his
parents and doing family business..
26. The Trial Court by the common judgment and order
dated 7th April, 2014 dismissed the divorce petition of the Petitioner
and decreed the maintenance petition. The operative order dated 7 th
April, 2014, reads as under:
"1. Petitioner A-2722/2009 stands allowed with costs.
2. Petition C-11/2011 for maintenance stands
decreed with costs.
3. The husband-Sameer Waghmare is directed to pay
permanent alimony of Rs.30,000/- per month to wife-
Sunita Sameer Waghmare u/sec. 18 of the Hindu
Adoption and Maintenance Act, 1956.
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4. The order shall take effect from the date of
Petition C-11/2011 i.e. 24.1.2011.
5. The husband-Sameer Waghmare is directed to
provide 1BHK flat to wife-Sunita Sameer Waghmare in
the vicinity where her parental home is situated. He shall
provide such accommodation within 60 days and on
failure to do so he shall pay amount of Rs.30,000/- per
month to wife for availing such accommodation.
6. The husband is directed to pay litigation cost of
Rs.20,000/- to wife.
7. Decree be drawn up accordingly to both
Proceedings."
27. During the pendency of the appeal proceedings, the
petition was amended to bring on record the subsequent events that
in the writ petition filed under Section 482 of the Cr.P.C. seeking
quashing of the FIR alleged by the wife, liberty was granted to the
Applicant-husband and his parents to file discharge application before
the trial Court, which came to be dismissed as against which the
Criminal Revision Application Nos.206 of 2019 and 207 of 2019 were
filed which came to be allowed.
SUBMISSIONS:
28. Heard Mr. Laxmikant Shukla, learned counsel for the
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Appellant and Mr. Shreesh Oak, learned counsel for the Respondent.
29. Mr. Shukla, learned counsel for the Appellant submits the
matrimonial cohabitation lasted for about two years. He would
further submit the wife left the matrimonial house on 22 nd August,
2008 and as per the wife it is on 7th March, 2009. He has confined his
submissions only to the aspect of cruelty and would submit that
considering that the criminal revision application is allowed quashing
the FIR lodged by the wife, it is evident that the Respondent has
levelled false allegations against the Petitioner and his parents which
entitles the Petitioner to divorce on the ground of cruelty. He would
urge that the Respondent has failed to substantiate the allegations of
illicit relationship. He would draw the attention of this Court to the
evidence to indicate that there was no cross-examination of the
Petitioner as regards the alleged extra-marital affair. He would further
submit that all this was circulated at the petitioner's native place
which has resulted in damaging his reputation and due to the lodging
of FIR he has withdrawn from the elections. He would further submit
that the admitted position is that atleast since 2009, the Respondent
is not residing with the Petitioner and till the year 2013 there was no
police complaint filed by the Respondent.
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30. As regards the maintenance proceedings are concerned,
which is subject matter of challenge of Family Court Appeal No.177 of
2014, he would contend that the Respondent is a graduate and
submit that the company is run by his family. He would further
submit that as regards Om Sai Super Specialty Hospital, the same was
earlier run by is elder brother and is not functioning. By inviting
attention of this Court to the partnership deed, he would contend that
Sameer Construction is a partnership business in which his father is a
partner holding 20% share.
31. Per contra, Mr. Oak, learned counsel for the Respondent
submits that the respondent-wife was not a party to the proceedings
before Sessions Court and there was no notice to the Respondent at
the time of hearing of the revision application. He would further
submit that Respondent became aware of the order of the sessions
court only in the year 2022, when the application for amendment was
filed. He would further submit that it is the Petitioner who has
subjected the respondent-wife to cruelty and the instances cited in the
Petition are are extremely vague and without any specific details. He
would further submit that the Petitioner has failed to examine his
parents to prove the allegations of cruelty. As regards desertion the
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learned counsel for the Respondent would contend that on 7 th March,
2009, she was thrown out and as such ground of desertion is not
available to the Petitioner. He has taken this Court to the observations
of the trial Court as regards the conduct of the Petitioner in dealing
with the Respondent and would contend that the Petitioner has failed
to prove cruelty on part of the Respondent. He would further contend
that the trial Court has come to a specific finding that the testimony
of the Petitioner is not creditworthy, as he has taken false stand and
the provision of Section 23 (i) of the Hindu Marriage Act, 1955, do
not permit the petitioner to take advantage of his own fault. As
regards the question of maintenance, he would submit that the trial
Court on consideration of the documentary evidence has granted a
sum of Rs.30,000/-. He would further contend that an application
was moved for reduction of the maintenance and this Court had
directed a sum of Rs.20,000/- to be paid towards accommodation and
Rs.20,000/- to be paid towards maintenance, which was challenged
in the Apex Court, that was however not successful.
32. In rejoinder learned counsel appearing for the Petitioner
submits that the Respondent was present to oppose the discharge
application before the trial Court. He would further submit that the
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Respondent has not filed Petition for restitution.
33. Considered the submissions and perused the papers and
proceedings with the assistance of the learned counsel appearing for
the parties.
ANALYSIS AND CONCLUSIONS:
34. Mr. Shukla, learned counsel for Petitioner has confined
his submissions to the aspect of cruelty and has not pressed the
ground of desertion. Before adverting further, it will be beneficial to
refer to the provisions of Section 13 (i)(ia) of Hindu Marriage Act,
1955 which reads thus:
35. In the case of Savitri Pandey vs. Prem Chandra Pandey,
(2002) 2 SCC 73, the Apex Court construing the question of 'cruelty'
as a ground of divorce under Section 13 (1)(ia) of the Act made the
following observations :
"Treating the Petitioner with cruelty is
a ground for divorce under Section 13(1)(i-a) of the Act.
Cruelty has not been defined under the Act but in relation
to matrimonial matters it is contemplated as a conduct of
such type which endangers the living of the petitioner with
the respondent. Cruelty consists of acts which are
dangerous to life, limb or health. Cruelty for the purpose
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of the Act means where one spouse has so treated the
other and manifested such feelings towards her or him as
to have inflicted bodily injury, or to have caused
reasonable apprehension of bodily injury, suffering or to
have injured health. Cruelty may be physical or mental.
Mental cruelty is the conduct of other spouse which causes
mental suffering or fear to the matrimonial life of the
other. "Cruelty", therefore, postulates a treatment of the
petitioner with such cruelty as to cause a reasonable
apprehension in his or her mind that it would be harmful
or injurious for the petitioner to live with the other
party. Cruelty, however, has to be distinguished from the
ordinary wear and tear of family life. It cannot be decided
on the basis of the sensitivity of the petitioner and has to
be adjudged on the basis of the course of conduct which
would, in general, be dangerous for a spouse to live with
the other."
36. Applying the law laid down by the Apex Court, the
evidence on record will have to be analysed to consider whether the
Petitioner has established such conduct on part of the Respondent
wife which is something more than normal wear and tear of
matrimonial life. The instances of cruelty on which the Petitioner
seeks dissolution of marriage has been rightly summarized by the
Trial Court as under:
"i) that she was insulting him and his parents.
ii) that she was talking clandestinely to some one on
phone.
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iii) that she spoilt the mood during honeymoon.
iv) That she quarreled with him on 22.10.2008 and
returned to her parental home."
37. Considering the instances of cruelty cited by the
Petitioner, in our view, the same cannot be said to be so grave and
weighty so as to cause an apprehension in the mind of the Petitioner
that it will be harmful to reside with the Respondent. Despite thereof
we have proceeded to examine the evidence on record to ascertain
proof of the incidents alleged. As regards the behaviour of the
Respondent during the honeymoon, in the cross examination, the
Petitioner has admitted that it was the joint decision of the parties to
go on the honeymoon and they returned to Mumbai as per the
schedule. That being so, the case of the Petitioner that during the
honeymoon the Respondent did not behave properly as the
honeymoon was delayed cannot be believed.
38. The next instance is as regards demand of the Respondent
for separate residence. The Petitioner has deposed that the
Respondent started demanding separate residence and behaved
arrogantly and stated that she has no intention to continue the
marital obligation. The demand to stay separately, in our opinion, by
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itself, will not amount to mental cruelty unless it is shown that the
said demand had become a bone of contention between the parties
and have led to numerous fights leading to mental agony. At this
juncture it needs to be noted that the Petitioner in his cross
examination has admitted that the Petitioner's two married brothers
had been given separate accommodation. Viewed from that aspect, it
cannot be said that the demand if raised was so unreasonable as to
cause mental cruelty.
39. The Petitioner has deposed generally about the conduct of
the Respondent that she used to insult, humiliate and abuse the
Petitioner and his parents without giving the date of occurrences or
the details of the incidents. As the Petitioner has failed to state the
material particulars as to the alleged incidents, there is no sufficient
evidence produced to substantiate the allegations. Pertinently, the
case of the Petitioner could have been corroborated by his parents,
but the Petitioner has failed to examine his parents. The only incident
which can be said to be proved is the incident of 22 nd October, 2008
as in the cross examination of the Petitioner, no material admission
has been elicited as regards this incident.
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40. The question is whether upon consideration of the
evidence on record, the Petitioner has made out a case of such cruelty
as would entitle the Petitioner for dissolution of the marriage. If the
cumulative effect of the instances of cruelty indicated above is
considered, in our opinion, the conduct of the Respondent cannot be
construed to constitute such cruelty as would entitle the Petitioner to
decree of divorce.
41. Even if it is accepted that the aforesaid instances of
cruelty as deposed cannot be construed to be grave and weighty,
there is another dimension to the present matter viz the filing of the
FIR during the pendency of the Petition and the allegations made by
the Respondent in the written statement which in our opinion entitles
the Petitioner to dissolution of marriage as indicated hereinafter.
42. In the written statement, the allegations of the
Respondent can be summarised as under:
(a) The Petitioner was extremely short tempered and used to
loose control if she disagreed with him.
(b) The Petitioner is having an illicit relationship with a
muslim girl.
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(c) The Petitioner is habituated to drinking and used to come
late at night and quarrel with her and abuse her in most
filthy language.
(d) The Petitioner and his parents removed the maid servants
and forced the Respondent to do all the housework.
(e) The entire matrimonial life was nightmarish experience
for her and she had never experienced such cruel
treatment in her life nor had she met such mean minded
and miserable persons as the Petitioner and his parents.
(f) The Petitioner was manhandling her and quarrelled over
smallest issue and threatened her and abused her.
43. Now if we consider the cross examination of the
Respondent, she has admitted that she does not know the name of
Muslim-girl with whom the Petitioner has an affair and that she had
never seen and does not know where she lives. In response to specific
question as regards the abuse by the Petitioner, the Respondent
admitted that he was not abusing her but telling her that she is not
intelligent. As regards the mental and physical cruelty she has stated
that the Petitioner and his family used to force her to do house work
and used to ask her as to why she is not leaving matrimonial house.
She has stated that the Petitioner abused her in filthy language by
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calling her insane.
44. The admission of the Respondent that there was one maid
servant in the matrimonial house renders false her allegation of
ill-treatment and cruelty at the hands of the Petitioner and his parents
of removing all house-help and forcing her to do all the work has
been proved to be false. The Respondent had further deposed that
she was abused and manhandled by the Petitioner, however in the
cross examination she has admitted that the Petitioner was not
beating her or abusing her. She has further admitted that her
allegation of abuse in filthy language was being called as
unintelligent and insane and by utmost cruelty she means that he
used to return home late in the night and used to shout at her even if
she asked him to take her out.
45. In light of the vital admissions given in the cross
examination, the allegations of the Respondent terming ill treatment,
abuse and mental and physical cruelty, going to the extent of
describing her matrimonial life as nightmarish and calling her
husband and his parents as mean minded and miserable persons was
clearly unsubstantiated. By no stretch of imagination, it can be said
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that calling the Respondent that "rqyk vDdy ukgh] rq osMh vkgsl" amounts
to abuse in filthy language or utmost cruelty is coming late at night
and shouting if asked for outing. The parties are Maharashtrians and
irrespective of any strata of society to which the parties belong, these
are common utterances in Marathi language and cannot be
considered as abuse in filthy language, unless the context in which
the utterances were made demonstrate that the same was for the
purpose of humiliating and insulting the person. The Respondent has
not given the details of the incidents during which such utterances
were made and as such simply by mouthing these words, it cannot be
said that the Respondent was abused in filthy language.
46. Now we come to the grave and serious allegations
levelled by the Respondent as regards the illicit relationship of the
Petitioner. In the cross examination she has admitted that she does
not know the name of the Muslim girl or where she lives and that she
has never seen her. This admission has to viewed in the light of the
FIR lodged by the Respondent. It needs to be noted that the evidence
of the Respondent concluded in the month of July, 2013. In the
month of October, 2013, the Respondent registered an FIR against the
Petitioner and his family members for the alleged offences punishable
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under Sections 498-A, 406, 341, 323, 504, 506 Part-II read with 34 of
the IPC. The allegations in the FIR have been noted in some detail. It
is alleged that the Petitioner was having an illicit relationship with
one Yasmin Sayyed and that in the cupboard the Respondent had
found the photographs of the Petitioner with one lady and also
certain letters in which the name of Yasmin Sayyed was mentioned.
Same was alleged upon confrontation, the Petitioner abused,
threatened and assaulted her. It is alleged that the Petitioner and his
parents abused the Respondent by calling her and family members as
beggars. It is further alleged that the Petitioner and his parents made
demands for money and flat from the Respondent's parents and used
to send the Respondent forcibly to her parents' house and if she did
not agree, they would abuse and assault her. It is alleged that
respondent's in-laws removed all the servants from the house and
made the Respondent to do all the household work. It is alleged that
the Petitioner was constantly under the influence of liquor.
47. It is alleged that in the month of July-2013, the
respondent's in-laws told the Respondent to bring money from her
parents for purchase of flat and upon the Respondent expressing the
inability of her parents due to their financial condition, the Petitioner
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abused and assaulted and the Respondent and threw her out of the
house with the assistance of her in-laws.
48. The Petitions before the Family Court came to be
amended with a specific case that by filing of the criminal case
against the Petitioner and his parents has lowered their reputation
before the public at large and family members and by making
baseless allegations the conduct amounts to cruelty which entitles the
Petitioner for divorce. Pertinently after the petition was amended by
the Petitioner, there was no written statement filed to the amended
petition.
49. Now if the consider the allegations in the FIR in the
background of the admissions given by the Respondent it can be seen
that it is alleged that the Petitioner was having affair with the
Muslim-girl named Yasmin Sayyed, whereas in the cross-examination,
Respondent has stated that she does not know the name of Muslim-
girl with whom the Petitioner has an affair. Further before the Family
Court it is not the case of the Respondent that there was any demand
for dowry or abuse or assault in the month of July, 2013. In the FIR,
the allegation is that in the month of July-2013, the Petitioner and his
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parents abused and assaulted her and demanded that the Respondent
bring money from her parents and also demanded a flat and had
forcibly thrown her out of the house. In the written statement, the
specific contention of the Respondent is that on 7 th March, 2009 the
respondent had not driven out by the Petitioner and her in-laws.
Considering the case put forward in the Family Court, it is crystal
clear that the allegations made in the FIR were completely false and
baseless. After having led evidence and given vital admissions in the
cross examination, the Respondent has gone ahead and after closure
of her evidence in the month of July, 2013, lodged an FIR in the
month of October, 2013 and made false and baseless allegations
against the Petitioner and his parents.
50. The Trial Court did not find substance in the contention
of the Petitioner of false implication as the FIR alleges abuse and
assault in the matrimonial house in 2013. The Trial Court held that
the matter is subjudice before the criminal court and it is not known
whether there is judgment of conviction. In our opinion, bare perusal
of the case put forward in the matrimonial petitions and the
allegations in the FIR makes it explicitly clear that the Respondent
has falsely implicated the Petitioner. Firstly, the FIR has been lodged
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in the month of October, 2013 when the evidence of the Respondent
was over in the month of July, 2013. Neither in the pleadings nor
during the evidence there is any mention of the allegations which
finds place in the FIR. Secondly, the FIR alleges illicit relationship
with one Yasmeen Sayed whereas in the cross examination, the
Respondent admits that she does not know the name of the muslim
girl. Thirdly, the FIR alleges abuse and assault on the ground of
dowry and being thrown out of the matrimonial house in September,
2013 when in the matrimonial petition, it is the Respondent's own
case that on 7th March, 2009, the Petitioner took the Respondent by
his car to her parent's house and left her there and since then she is
residing with her parents. In the face of such contradictions the Trial
Court failed to appreciate that the Respondent has falsely implicated
the Petitioner and made wild, reckless and baseless allegations. The
fact remains that the FIR has been quashed in the revision application
preferred by the Petitioner and his parents.
51. The Petitioner had amended the petition and pleaded the
false implication as a ground of cruelty. He has deposed that the false
complaint has lowered the image and reputation of the Petitioner and
his parents in the society and has caused mental trauma to them. As
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the issue involved is whether the allegations made in the written
statement by the respondent-wife would amount to cruelty, a useful
reference may be made to the decision of the Apex Court in the case
of V. Bhagwat vs. D. Bhagwat (Mrs) reported in (1994) 1 SCC 337.
The Apex Court in the facts of that case was considering the question
as to whether the allegations made by the respondent-wife in her
written statement constitute mental cruelty. The Apex Court after
analysing the provisions of Section 13(i)(i-a) of the Hindu Marriage
Act and after considering the various decisions have held in
paragraph 20 thus:
"it must be remembered that the wife was merely
defending herself against what are, according to her,
totally unfounded allegations and aspersions on her
character. It was not necessary for her to go beyond that
and allege that the Petitioner is a mental patient, that he
is not a normal person, that he requires psychological
treatment to restore his mental health, that he is suffering
from paranoid disorder and mental hallucinations- and to
crown it all, to allege that he and all the members of his
family are a bunch of lunatics. It is not as if these words
were uttered in a fit of anger or under an emotional
stress. They were made in a formal pleading filed in the
Court and the questions to that effect were put by her
counsel, at her instructions, in the cross-examination.......
Making such allegations in the pleadings and putting such
questions to the husband while he is in the witness-box, is
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bound to cause him intense mental pain and anguish
besides affecting his career and professional
prospects............ These assertions cannot but constitute
mental cruelty of such a nature that the petitioner,
situated as he is and in the context of the several relevant
circumstances, cannot reasonably be asked to live with
the respondent thereafter. The husband in the position of
the Petitioner herein would be justified in saying that, it is
not possible for him to live with the wife in view of the
said allegations. .............."
52. In the case of Joydeep Majumdar Vs. Bharati Jaiswal
Majumdar reported in (2021) 3 SCC 742, the Apex Court was
considering a case of dissolution of marriage in which the Family
Court had given a finding that the respondent-wife had failed to
establish her allegations of adultery against the husband. The Apex
Court was considering the issue as to whether the conduct of the
Respondent would fall within realm of mental cruelty and observed in
that case the allegations had been propensity to irreparably damage
character and reputation of Appellant and it would be difficult to
expect condonation of such conduct by affecting the party and held
that the Appellant was entitled to dissolution of marriage.
53. Applying the ratio of the above decisions to the facts of
the present case, it cannot be disputed the respondent-wife has made
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reckless and baseless allegations not only in the written statement but
has also filed a criminal complaint leading to registration of FIR
against the Petitioner and his parents. Upon perusal of the evidence,
the respondent-wife has failed to establish the allegations of adultery
and perusal of averments in the FIR would also indicate that the
averments made therein are completely contradictory to the
allegations made in the written statement. As such, in our opinion,
the irresponsible and false baseless allegations made by the
respondent-wife and failing to justify the same by evidence by itself
would amount to cruelty and would entitle to the Petitioner-husband
to dissolution of the marriage.
54. While considering the conduct of the Respondent in
context of "cruelty" as contemplated under the provisions of Section
13 (1)(i-a) of the Hindu Marriage Act, 1955, the strata of the society
to which the Petitioner belongs will also be relevant. In the instant
case, the Petitioner belongs to an affluent family and the conduct of
the Respondent alleging illicit relationship, dowry demands and filthy
abuse and assault as against the Petitioner and his parents to the
extent of describing them as mean minded and miserable persons,
without being able to substantiate the allegations, has resulted in
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lowering the reputation of the Petitioner and his parents in the society
and constitutes cruelty within the meaning of Section 13 (i)(i-a) of
Hindu Marriage Act, 1955. We do not think that this is a case, where
the appellant could be denied relief by invoking Section 23(1)(a) of
the Hindu Marriage Act. On the contrary, the allegations of illicit
relationship and the lodging of FIR making reckless and false
allegations has subjected the Petitioner to serious traumatic
experience which can safely be termed as 'cruelty' coming within the
purview of Section 13(1)(i-a) of the Hindu Marriage Act. Therefore,
we hold that the appellant is entitled to the decree for dissolution of
marriage under Section 13(1)(i-a) of the Hindu Marriage Act.
55. Now let us consider the issue of maintenance granted to
the Respondent. The challenge raised is considering the monthly
salary of Rs.10,000/-, the monthly maintenance Rs.30,000/- per
month is excessive and the direction to provide residence is liable to
be interfered with. The documentary evidence produced by the
Respondent is the brochure of Sameer Construction, the invitation
card of Hotel Sairaj Family Resorts at Solapur, the scrutiny of
nomination of husband in the BMC erections in 2012, payment of
receipt of BMC dated 31st December, 2012, letter of nomination of
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Election Commission, affidavit of Petitioner in BMC election, the
payment receipt dated 21st January, 2012, nomination dated 22nd
January, 2012. On the other hand the Petitioner has produced his
salary certificate issued by Sameer Construction and copy of ledger
account showing the salary of the Petitioner, the copy of the
partnership deed of Sameer Construction, the copy of undertaking
filed by the Petitioner on 13th March, 2006 and the copy of the letter
issued by the Bharat K. Shah, Chartered Accountant and Auditor of
the company.
56. The Petitioner has come with a case of monthly salary of
Rs.10,000/- from the firm of Sameer Construction and has produced
copy of the salary certificate on record and ledger account of the
company. He has also produced on record the deed of partnership
firm of Sameer Construction, which shows that his father having only
20% share and there are other partners, who are not family members,
who are having 80% shares. He has deposed that he has no
immovable property in his name and the business of Hotel Sairaj was
carried out by Arjun Anant Waghmare, who is the proprietor and that
the business of Sunil Construction belongs to Arjun Anant Waghmare.
He has deposed that he is a Director of Sulochana Nursing Home Pvt.
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Ltd but he is not paid director-fees or remuneration. In support he
has produced the letters issued by the Chartered Accountant-Auditor
of the company. He has deposed that he has no income except the
salary which is getting from Sameer Construction. He has further
deposed that he has no place to reside as he has left the house and
reside in the office. He has deposed that the Respondent is having
her own income and as such is not entitled to maintenance.
57. In cross examination, the Petitioner has admitted that he
is director of Om Sai Super Specialty Hospital Pvt. Ltd. and Sulochana
Nursing Home Pvt. Ltd. He has admitted that at the time of filing
nomination form of BMC elections, he was having Rs.3,15,824/- and
was owner of 10 tolas of gold worth of Rs.3,50,000/-. He has
admitted that he does not have any proof to show that he was
residing in the office of his father since 2009 to 2012. He has
admitted that Sulochana Nursing Home Pvt. Ltd. is the family
business of his family and Om Sai Super Specialty Hospital belongs to
his father. He has admitted that his family owns a resort by name and
style Sai Resorts which belongs to his father. He has admitted that his
father has allotted two separate accommodation to his two married
brothers.
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58. It is not disputed that the Petitioner holds a diploma in
civil engineering and since the year 2004, he is working with
M/s.Sameer Construction. The Petitioner claims that M/s.Sameer
Construction is partnership business and his father holds 20% shares
in the partnership firm. A perusal of the partnership deed executed on
11th September, 1997 discloses that the deed has been executed
between the father of the Petitioner, who is stated to be carrying out
proprietorship business under the name and style of Sameer
Constructions and Kishor Kantilal Maniyar and Naina Kishor Maniyar
as parties on the second part and object of the partnership is limited
to implementation of Slum Rehabilitation Project. The Petitioner has
not produced any material on record to demonstrate the position of
the partnership firm in the year 2013 and seeks to rely on the
partnership deed of the year 1997 which was limited to the execution
of the slum rehabilitation project.
59. The Petitioner places reliance on the salary certificate
issued by partner of M/s. Sameer Constructions which certifies the
salary of the Petitioner at Rs.10,000/- per month and the ledger
account of the firm. Admittedly the Petitioner's father is a partner in
M/s. Sameer Constructions and as such the possibility of obtaining
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the certificate and ledger account only for the purpose of matrimonial
dispute cannot be ruled out. The undertaking produced by the
Petitioner is affirmed by the Petitioner's father which refers to he
being the owner of M/s. Sunil Constructions and there is reference to
a slum rehabilitation project.
60. Admittedly the Petitioner is a qualified engineer and is
admittedly working in the construction business of the family apart
from being director in Sulochana Nursing Home Pvt Ltd, which is
owned by his family. Now let us consider the lifestyle of the Petitioner
to ascertain whether the same is commensurate with the monthly
salary of Rs.10,000/- as pleaded. The Petitioner has admitted that he
has visited Thailand in June, 2012, that he owns a car and that he
had contested BMC elections. In our opinion, a person earning a
salary of Rs.10,000/- per month is not financially capable of visiting
Thailand for fun or maintaining a car, and, similarly contesting BMC
election is beyond the reach of a person with such salary. In the cross
examination, the Petitioner has admitted that in the documents
furnished for contesting election , it is mentioned that the Petitioner is
submitting income tax returns since 1998. It was therefore expected
of the Petitioner to produce the income tax returns which could have
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led to some inference in respect of his income, which the Petitioner
has failed to do. In such situation adverse inference can be drawn
against the Respondent.
61. From the evidence which has come on record, it is
evident that the Petitioner belongs to an affluent family engaged in
various businesses such as construction, hotel and nursing homes. It
is a matter of common knowledge that in family owned businesses, it
is not necessary for the family members to be shown as part of
management, and the fact remains that the income derived from the
various businesses is for the benefit of all the family members. The
lifestyle enjoyed by the Petitioner justifies the inference that the
Petitioner is the beneficiary of the family income. As such it can
safely be inferred that the Petitioner is part of the family owned
businesses and the aspect of maintenance will have to be considered
by taking into account the said fact. In case of salaried employees,
the income of the husband can be ascertained from his salary
certificate. However, in the present case, what we have is family run
business in which the Petitioner is shown to be a mere employee
drawing a salary of Rs.10,000/-. As there is no direct substantiated
evidence on record regarding the monthly income of the Petitioner,
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this Court will have to be guided by the attending circumstances
which demonstrate the affluent lifestyle of the Petitioner and his
family members to determine the issue of monthly maintenance.
62. It is an admitted position that the Petitioner's family has
ventured into construction business, hotel business and nursing
home. It has also come on record that the Petitioner's father has
provided two separate accommodation to the married brothers of the
Petitioner. The entire expenses of the marriage was borne by the
Petitioner's family. This gives a fair idea about the financial capability
of the Petitioner and his family members and the version of the
Respondent about the gross monthly income being Rs.5,00,000/-
cannot be improbable. It can be safely assumed that the appellant is
capable of paying the monthly maintenance as granted. It cannot be
disputed that the wife is entitled to the same status as that of the
husband and we have already seen that the Petitioner belongs to an
affluent family, is Director in the nursing home, owns a car and has
travelled to foreign country as fun tour. On the other hand the
Petitioner has failed to prove that the respondent-wife is having any
source of income.
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63. Now, comes the issue of direction of the Family Court to
provide accommodation to the Respondent. The Petitioner has
admitted that the petitioner's father has provided flats to his two
brothers and it is also not disputed that the family is into construction
business. The Respondent comes from a middle class family with
limited family income and that her father is a pensioner and the
Respondent is living with her parents with her brothers.
64. Section 3(b) of The Hindu Adoptions and Maintenance
Act, 1956 defines maintenance to include in all cases, provision for
food, clothing, residence, education and medical attendance and
treatment. Considering the definition of maintenance, the claim of
the Respondent for accommodation cannot be faulted. It is the duty of
the Petitioner to meet the housing need of the Respondent. The
Family Court, in our opinion, has rightly directed the Petitioner to
provide 1BHK flat to the Respondent in the vicinity of parental house
and upon failure to do so, to pay an amount of Rs.30,000/- p.m. for
availing such accommodation.
65. Having regard to the discussion above, Family Court
Appeal No.176 of 2014 is allowed and the marriage between the
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parties solemnised on 24th January, 2007 stands dissolved by decree
of divorce under Section 13(1)(i-a) of Hindu Marriage Act, 1955.
Family Court Appeal No.177 of 2014 challenging the maintenance
and the direction of providing for accommodation stands dismissed.
66. In view of the disposal of the appeals, interim application
does not survive and stands disposed of.
(Sharmila U. Deshmukh, J.) (Nitin W. Sambre, J.)
sa_mandawgad
Signed by: Sanjay A. Mandawgad
Designation: PA To Honourable Judge
Date: 07/09/2023 11:07:18
