Gujarat High Court
Padma Alias Pooja D/O Jhamandas ... vs Raja Alias Vasudev Hasanand Nagrani on 22 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1191 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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PADMA ALIAS POOJA D/O JHAMANDAS GAJANMAL PANJWANI
Versus
RAJA ALIAS VASUDEV HASANAND NAGRANI
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Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MS. ALKA B VANIYA(6945) for the Appellant(s) No. 1
MR AMRISH K PANDYA(3219) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 22/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. This appeal has been filed by the appellant-wife
challenging the judgement and decree of the
Family Court, Vadodara dated 27.11.2013. By
the aforesaid judgement and decree, the Family
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Court, Vadodara on an application of the
respondent herein seeking a divorce under
Section 13(1)(ia) of the Hindu Marriage Act,
granted such divorce on appreciation of the
evidence that the respondent has proved his case
against the appellant having committed cruelty.
2. Facts in brief would indicate that the respondent
was the original applicant before the Family
Court, Vadodara. The respondent had filed the
application under Section 13(1)(ia) of the Hindu
Marriage Act. It was his case that the marriage
was solemnized on 21.11.2000. It was the case
of the respondent before the Family Court that
the appellant would behave unbecoming of a wife
with the family members and that she would at
the behest of her brother, disturb the family
peace where she continued with her unruly
behavior and would assert her feelings and do
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whatever she would feel appropriate. The case
of the respondent also was that she had at a
stage of marriage threatened the respondent that
she would commit suicide as a result of which he
and his parents would be sent to jail. Several
attempts were made by the family to bring about
a settlement, however, the behavior of the wife-
appellant did not improve. It was further the
case of the respondent before the Family Court
that when the appellant conceived, she insisted
that the child be aborted. Instances have been
narrated by the respondent in an application
such as these to seek divorce from the appellant-
wife.
2.1 The appellant filed a written statement
before the Family Court. Apart from the denial
to the allegations made by the respondent in her
written statement, she would assert that the
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family at one stage threatened her and forced
her to consume poison. That, she would be
confined to a room where an assault was sought
to be made and her wrists were tried to be cut
with the blade. Both the appellant-wife and the
respondent-husband were examined and cross-
examined before the Family Court. At Exh.74
was the deposition of the wife. The respondent-
husband was also examined and questions were
put to him in cross-examination as he was
impaired of hearing. The evidence of the
husband is recorded at Exh.84.
2.2 What has also been considered by the Trial
Court while granting a decree of divorce in
favour of the respondent is that albeit post filing
of the Family Suit and two years thereafter, the
appellant-wife filed a complaint under Section
498A against the family of the respondent
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wherein the respondent and his parents were
acquitted. Considering the filing of the
complaint and the actions whether can be
considered as cruelty, the Family Court came to
a conclusion that it was a case where the
allegations of cruelty were made out and
therefore the respondent was entitled to a decree
of divorce on the ground of cruelty.
3. Ms.Alka Vania learned counsel for the appellant
would submit that a decree of divorce in the facts
of the present case was unwarranted. She would
submit that on the bare reading of the
application for divorce, apart from the fact that
the marriage was solemnized on 21.11.2000 and
if according to the respondent, it was the wife
who left the matrimonial home on 06.11.2000,
though a notice was issued by the respondent on
09.11.2000, the wife had denied by a response
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on 28.11.2000. It was only immediately
thereafter within a period of less than one month
that the divorce petition was filed on 03.12.2001.
The statutory period of desertion therefore was
not made out mandating a decree of divorce.
3.1 Ms.Vania learned counsel for the appellant
would further submit that merely because there
were allegations that she was assertive and
would speak in a loud voice were not grounds
enough to sustain the grounds of cruelty as set
out by learned Family Court and the decree of
divorce therefore could not have been passed.
3.2 Taking us through the judgement and the
reasoning assigned by the Family Court,
Ms.Vania would want us to hold that the decree
of divorce passed by the Family Court on the
grounds of cruelty is unsustainable and therefore
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the same must be set aside.
3.3 In support of her submissions, Ms.Vania
would rely on the decision of the Supreme Court
in case of Savitri Pandey v. Prem Chandra
Pandey reported in 2003 (2) GLR 1369. She
would submit that the allegations in the plaint
would not per-se amount to cruelty and there
was no evidence shown by the respondents to
suggest that the marriage could be dissolved.
Reliance was also placed on the decision of the
Bombay High Court in case of Bajrang
Gangadhar Revdekar v. Pooja Bajrang
Revdekar reported in AIR 2010 BOMBAY 8.
Reading out the judgement, Ms.Vania would
submit that akin to the facts of the case before
the Bombay High Court, no case of cruelty was
made out. She would rely on para 17 of the
decision to support her submission that simply
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where wife makes some grievance in a louder
voice cannot be a ground of divorce due to
cruelty. Reliance was also placed on a decision
of the Division Bench in case of Smt. Piyasha
Ghosh v. Somnath Ghosh reported in AIR
2009 CALCUTTA 90.
4. Mr.Amrish Pandya learned counsel for the
respondent would submit that the allegations
made in the application apart from being denied
in the written statement itself when allegations
were made by the appellant as to the bodily
injury alleged to have been made by the
respondent and unfounded allegations of assault
itself would make a case where the respondent
needed to seek divorce. Even under Section
498A, when the respondent and his family
members were acquitted, it was a ground on
which the decree of divorce cannot be interfered
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with.
4.1 Mr.Pandya in support of his submission
would rely on the decision in case of Rakesh
Raman v. Kavita reported in 2023 LawSuit
(SC) 443. He would also rely on the decision in
case of K. Srinivas Rao v. D.A. Deepa reported
in 2013 LawSuit (SC) 158. This judgement
was pressed into service to support his
submission that even when the grounds in the
written statement are such that they are
unfounded and are baseless, they can be
considered as cruelty. The judgement in case of
Rani Narasimha Sastry v. Rani Suneela Rani
reported in 2019 (0) AIJEL-SC 65431 was
pressed into service for the allegations vis-a-vis
under Section 498A.
5. We have considered the submissions made by the
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learned counsel for the respective parties.
Before we consider the facts of the case, we
unfortunately cannot shut our eyes to the fact
that having entered into marriage in the year
2000, the parties to this appeal have now been
residing separately for over a period of 23 years
since the year 2001. Perusal of the memo and
application filed under Section 13 and the
evidence of the respondent who deposed before
the Family Court at Exh.61 would indicate that
he has more or less confirmed the allegations
made in the application seeking divorce on the
ground of cruelty. What needs to be noted even
otherwise though the notice issued by him on
09.11.2001 is not exhibited is that the learned
counsel for the appellant has read the contents of
the notice which indicate that it is the perception
of the respondent so supported by his oral
evidence that the wife apart from being assertive
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would expect the respondent to fall in line with
what she expected in life. It was also asserted
and orally proved that she would indulge in
misbehaving with her in-laws. Though post the
filing of the suit, it has come on record that
during the pendency of the suit and prior to the
decision rendered by the Family Court, the
appellant did file complaints against the
respondent's family under Section 498A of the
Indian Penal Code where the criminal Court
acquitted the respondent and his parents. The
Family Court further considering the
reinstatement and the deposition of the appellant
found that in fact she had gone out of her way in
making allegations of matrimonial house being
unsafe for her inasmuch as she faced physical
abuse when at one stage, a threat was made by
her in-laws to split her wrists and she was forced
to consume poison. Confronted by this statement
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and allegations made in the written statement,
we would ponder whether such allegations made
on behalf of wife would entitle a husband to seek
decree of divorce. When we consider the
decision of the supreme Court in case of K.
Srinivas Rao (supra), para 12 of the judgement
indicates a case where the Supreme Court based
on the allegations made by the counterpart in the
written statement suggested that such pleadings
and questions would cause immense mental pain
and anguish to the husband.
6. Apart from this circumstance that would weigh
against the appellant in assailing the judgement
of the Family Court, as held by the Supreme
Court in case of Rakesh Raman (supra), when it
has been found in the applications under Section
498A that the allegations against the in-laws of
the husband have been found unwarranted and
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there has been an acquittal, such an aspect
would certainly be a circumstance that would
weigh in favour of a party-the husband in this
case seeking a decree of divorce when the
allegations have been found to be unwarranted.
7. Time and again this Court has come across
decisions of the Family Court where the scope of
the term 'cruelty' has been a matter which has
been decided by various decisions of the
Supreme Court. In all the decisions cited by the
parties before us, i.e. in the case of Samar
Ghosh v. Jaya Ghosh reported in (2007) 4
SCC 511, the Court while relying on the decision
of cruelty in a matrimonial relationship, has
extensively quoted from Halsbury Dictionary.
8. What is evident from the above reading is that
while considering the cases of cruelty, we have
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to see the entire matrimonial relationship.
Cruelty could consist not necessarily of violent
acts but injuries to mental health which contains
accusations and taunts.
9. There is another aspect to this appeal from what
has been considered by the Trial Court and as we
note now that they have been staying away for a
period of 23 years. The Supreme Court in case
of Savitri Pandey (supra) considered the
decision in case of Jorden Diengdeh v. S.S.
Chopra reported in 1985 (3) SCC 62, which is
a case where a complete reform of a law on
marriage has been suggested and introduced the
concept of irretrievable breakdown of marriage.
Here is a case where allegations and counter
allegations have been made by the respective
parties and which the family Court in our opinion
has considered based on the evidence on record,
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we see no reason to distort the findings of the
family Court. The appeal is accordingly
dismissed.
10. In view of the fact that alimony which has been
deposited by the respondent before the Family
Court at Vadodara is still lying with the Family
Court, the appellant shall be permitted to
withdraw the same.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
ANKIT SHAH
