Bombay High Court
Bhaurao Namdev Hirve vs Shalu Bhaurao Hirve on 8 January, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:403-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FAMILY COURT APPEAL NO.94 OF 2023
Bhaurao S/o Namdev Hirve,
Age-45 years, Occu:Agriculture,
R/o-Toramba, Taluka and
District-Osmanabad.
...APPELLANT
(Ori. Petitioner)
VERSUS
Shalu W/o Bhaurao Hirve,
Age-43 years, Occu:Household,
R/o-Toramba, Taluka and
District-Osmanabad,
At Present: Vikas Housing Society,
In front of Mauli Hospital,
Bhalshankar Apartment, Rupi Nagar,
Talwade, Tq-Haveli, District-Pune.
...RESPONDENT
(Ori. Respondent)
...
Mr. P.D. Dadpe Advocate for Appellant.
None present for Respondent though served.
...
CORAM: SMT. VIBHA KANKANWADI AND
S.G. CHAPALGAONKAR, JJ.
DATE : 08th JANUARY, 2024
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. Present Appeal has been filed by the original petitioner -
husband, whose petition for divorce came to be dismissed i.e.
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Petition No.A-233 of 2021 on 24 th July 2023 by the learned Judge,
Family Court , Dharashiv (Osmanabad).
2. The respondent - wife has been served in this matter but
she failed to cause appearance. Since all the documents were
filed including the copies of depositions, matter is heard finally
with the consent of the learned Advocate for the appellant, at the
stage of admission.
3. It is not in dispute that original petitioner - husband and
respondent - wife got married on 23 rd June 2003 at Padoli
(Akubai), Taluka and District-Osmanabad as per Buddha customs
and rituals. Initially they resided at village Toramba but
thereafter they shifted to Pune where appellant - husband used
to take plumbing work on contract basis. They have three
children, i.e. two daughters and one son. It is also not in dispute
that appellant - husband suffered serious injury in an accident in
January 2018.
4. The appellant had come with the case that in the said
accident, he had suffered injuries to his head, brain, right hand
and leg and thereby he has been disabled to do any work.
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Appellant has taken treatment for about 1½ years at Solapur and
Pune. Appellant alleges that thereafter the respondent - wife
started quarreling with him. He has also made allegations that
one of the relative of the wife started coming frequently to their
house, which was not approved by the appellant - husband. In
spite of the fact that the wife was aware about the physical
condition of the husband, still she was insisting that he should do
labour work or any other work. Wife used to say that unless he
does work he should not reside in the house. She was not
providing meals to the appellant. She used to call her sister,
brothers to give threats to the appellant. Appellant then started
saying that they should shift to Toramba where they will earn for
their livelihood but the wife refused. According to the appellant,
due to physical and mental harassment given by the wife, he is
residing separately from her since 2 nd February 2021 and on the
ground of said cruelty, he had sought divorce.
5. The respondent - wife had filed written statement and
denied the allegations. She says that the original petitioner -
husband is still doing work of plumbing. He is having 12 acres of
land at village Toramba. She says that as appellant was driving
the vehicle under the influence of liquor, he was responsible for
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the accident. She says that her children are taking education at
Pune and therefore, it is not possible for them to stay at
Toramba. She has stated that she is ready to cohabit with the
petitioner for the future of her children.
6. Issues came to be framed. Parties have led oral evidence
and after considering the evidence on record, the learned trial
Judge has dismissed the petition.
7. The learned Advocate appearing for the appellant has
submitted that the learned trial Judge has not appreciated the
evidence properly. It has not been considered that the appellant
had suffered major accident and he was unable to do any work
still the wife was insisting that he should work and on that count
the wife has harassed the appellant.
8. Following points arises for my determination and the
findings and reasons for the same are as follows :
Sr.No. POINT FINDING
01 Whether the appellant had proved In the negative.
that wife has treated him with
cruelty ? If yes, whether appellant
was entitled to get decree for divorce?
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R E AS O N S
9. The most important point that can be seen from the
evidence that was adduced by the appellant - husband that he
has not produced any document to show that he had taken
treatment for a long period and he was advised to take rest. No
doubt the wife is admitting that the husband suffered accident
but she has disputed the fact projected by the husband that he
has incurred physical disability. For that purpose it was necessary
for the husband to examine the treating doctor, the doctor from
whom he received the follow-up treatment. If we consider his
cross-examination, at the initial stage appellant has stated that
he was admitted in Solapur for about 3 to 4 months. Thereafter,
he corrected himself by saying that he was admitted for about 14
to 15 days. Then he says that after 15 days he was taking bed
rest for about one year. But then appellant says that during the
said period of one year he was at Pune with his wife. Without any
reason if he was not doing any work to earn when he had four
members in his family to support, apart from himself, and if the
wife insists upon husband to do some work, then it cannot be
said that it amounts to cruelty. Appellant has intentionally
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suppressed as to who was earning during the said period when
he was taking bed rest.
10. It appears that the appellant has voluntarily left the
company of the wife though he has tried to say that it is due to
the cruelty. He has not examined any of his relative to whom he
would have shared his plight. It appears that on the basis of
some vague contentions he wants divorce and therefore, the
learned trial Judge was justified in refusing the decree for
divorce. There is no merit in the Appeal which has to be
dismissed at the threshold.
11. Accordingly, the Appeal stands dismissed.
[S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/JAN24
