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2013 DIGILAW 596 (BOM)

Gauri Sanjay Bhosale v. Sanjay Raghunath Bhosale

2013-03-08

A.R.JOSHI, NARESH H.PATIL

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JUDGMENT:- 1. This appeal is directed against the judgment and order passed by the Family Court, Mumbai in Petition No.A-182/2000 dated 2nd February, 2005. The respondent Sanjay Bhosale filed a petition initially for judicial separation. Thereafter by way of application for amendment the same was converted into petition for dissolution of marriage on ground of cruelty. 2. According to the respondent in the family court petition it was urged that the appellant and respondent were married on 1.1.1997 as per Hindu Vedic rites in Mumbai. The original petitioner was employee of Indian Airlines working as a driver on shift duties. At the relevant time the respondent had to work overtime. The appellant did not approve of respondent working overtime. She used to talk to him on phone and disturb other staff members. The appellant was having suspicion about conduct of the respondent. The appellant's temperament was sensitive on petty domestic issues. She was threatening the respondent to commit suicide to teach him a lesson. She had suffered from typhoid but refused to receive medical treatment in the year 1999. Her behavior was violent and unbearable. She used to talk inconsistently, raise quarrels and bang her head at times. It was alleged that the appellant used to fight with the respondent on various issues. 3. On 3.10.1999 it is alleged that the appellant hanged herself to the ceiling rod and the respondent had to save her life. The appellant was admitted to Desai hospital between 3.10.1999 to 7.10.1999. She was provided with treatment of a psychiatrist. 4. On 28.10.1999 it is alleged that she tried to commit suicide by pouring kerosene on her person which was prevented by the respondent. On 4.11.1999 the appellant again attempted to commit suicide. She was admitted to V.N. Desai's hospital by the respondent. Dr.Vahia, psychiatrist treated the appellant. Series of such incidents used to take place in married life of the respondent. According to respondent, the appellant is mentally sick person and it was not possible to lead life with the appellant as husband and wife. It was further alleged that the appellant was seen moving around with one Chandrakant Kelurkar @ Chintya on motor-cycle. The written complaint was lodged by the respondent to Vakola police station on 2.12.2002. 5. The appellant appeared in the matter and filed her reply. She denied allegations made by the husband. It was further alleged that the appellant was seen moving around with one Chandrakant Kelurkar @ Chintya on motor-cycle. The written complaint was lodged by the respondent to Vakola police station on 2.12.2002. 5. The appellant appeared in the matter and filed her reply. She denied allegations made by the husband. It was submitted that the respondent-husband had fabricated the evidence. She was forced to undergo abortion. The respondent used to behave strangely. She was not provided with enough money to run household affairs. She admitted that she was hospitalised in V.N. Desai's hospital. 6. She was assaulted by the husband. She became unconscious and it was respondent who hanged her to ceiling rod. She was beaten up mercilessly on 4.11.1999. The respondent poured kerosene on her person to set her on fire. The appellant was frightened due to behavior of the respondent. During the hospitalisation the husband insisted upon giving shock treatment due to which the appellant was frightened. In substance it was submission of the appellant that inspite of rude and intolerable behavior of the husband she was willing to reconcile with husband. During pendency of the proceedings the parties started residing separately. Though the respondent was earning Rs.15,000/- per month she was not provided with enough monetary assistance. 7. The appellant filed further written statement after the petition was amended at Exhibit-19. It is contention of the appellant that the respondent was holding jewellery which was given to her as Stridhan by her father at the time of marriage. 8. The parties were referred to counselor. The parties arrived at consent terms for reconciliation on trial basis but reconciliation failed. The report of the counselor were placed on record. 9. The respondent examined himself by filing affidavit Exhibit-21. He examined one witness at Exhibit-39. The appellant-wife examined herself by filing her affidavit at Exhibit-42 thereafter the appellant filed precipe for closure of evidence. The appellant did not examine any witness. The parties filed written arguments. 10. Learned counsel appearing for the appellant submitted that Stridhan of the appellant is still with the respondent which is required to be returned to her. The application came to be filed for additional evidence under Order 41 Rule 27 of the Code of Civil Procedure by the appellant. This application was filed at the stage when final arguments nearly came to an end. The application came to be filed for additional evidence under Order 41 Rule 27 of the Code of Civil Procedure by the appellant. This application was filed at the stage when final arguments nearly came to an end. By this application the appellant had produced marriage photograph to indicate that jewellery was on her person at the time of marriage. Certain receipts issued from the jeweller were also placed on record alongwith other documents and list of ornaments. 11. Learned counsel appearing for the respondent objected that such application shall not be allowed at fag end when the parties have advanced their arguments. It was further submitted that no case is made out for allowing the application under Order 41 Rule 27 of the Code of Civil Procedure. 12. The respondent has also filed an application under Order 41 Rule 27 of the Code of Civil Procedure. The appellant had also filed affidavit in reply. 13. On merits learned counsel appearing for the appellant submitted that it is case where the appellant has been treated inhumanly and atrociously by the respondent. The respondent has no regard for her well being and due to behavior of the respondent, the life of appellant got spoiled. The respondent had got remarried which establishes that the respondent had no regard for the appellant. Learned counsel further submitted that the respondent got job in Indian Airlines due to efforts made by father of the appellant. In fact the respondent harassed the appellant for getting said job. It was further submitted that the appellant was not suffering from any mental disorder. The respondent had made out false case to suit his purpose. The respondent was having intention to eliminate the appellant. Learned counsel further submitted that Stridhan (jewellery) property is required to be handed over to the appellant and the appeal deserves to be allowed. 14. Learned counsel appearing for the respondent supported the impugned judgment and order, and submitted that the respondent had made out good case based on sound grounds. Evidence was brought before the trial Court, appropriate issues were framed and trial Court reached proper conclusion which does not call for interference by the High Court. Counsel submitted that the appellant had converted to Islam religion and had even performed another marriage. The theory of jewellery being handed over to the respondent is after thought theory. Evidence was brought before the trial Court, appropriate issues were framed and trial Court reached proper conclusion which does not call for interference by the High Court. Counsel submitted that the appellant had converted to Islam religion and had even performed another marriage. The theory of jewellery being handed over to the respondent is after thought theory. There is no record to establish that jewellery was handed over to the respondent. In fact jewellery was taken away by the appellant when she left the house. It is word against word. The issue in respect of Stridhan was added afterwards. In the amended written statement the appellant claimed Stridhan property. Learned counsel submitted that considering evidence on record no interference is warranted in impugned judgment and decree while dealing with this appeal. 15. We have perused the record, judgment and order, considered the submissions. The trial Court has considered evidence in its entirety led by the parties before the court. From the evidence on record it could be ascertained that relations between the appellant and respondent got strained. Complaints were filed against each other, both started doubting each other's conduct and character. The respondent contended that the appellant was seen with a person moving on motor-cycle. To highlight the issue it was submitted that the appellant later on converted to Islam religion and married with third person. The overall conduct demonstrates that it was not possible for the respondent to live with the appellant. Several instances of day to day life were stated by the parties which demonstrate that the marriage had irretrievably broken and there was no scope for any reconciliation or settlement between the parties. 16. We have extensively heard this matter, gone through record and analysed the evidence on record. It was difficult for the parties to reconcile as relation between them had got damaged seriously. They have lost faith in each other. At one point of time the police had searched house of the respondent for ornaments which according to the appellant were handed over to the respondent. Much stress was led during the course of arguments on Stridhan (jewellery) which according to the appellant was handed over to the respondent. We do not find any convincing, cogent and reliable material on record to direct the respondent to handover any such jewellery to the appellant. Much stress was led during the course of arguments on Stridhan (jewellery) which according to the appellant was handed over to the respondent. We do not find any convincing, cogent and reliable material on record to direct the respondent to handover any such jewellery to the appellant. The photographs placed on record and receipts, no way goes to establish that Stridhan was handed over by the appellant to the respondent. 17. The respondent had filed application under Order 41 Rule 27 of the Code of Civil Procedure bringing on record certain documents showing that the appellant had given birth to male child at Nandeo Maternity Surgical Home on 27.2.2008. The appellant had performed marriage with one Shakeel Rashid Iddu on 12.4.2007 and Nikahnama written in Urdu is also placed on record. The respondent had also placed on record a copy of the complaint filed by the said Shakeel against the appellant at Vakola police station on 18.1.2012. It was contention of learned counsel that High Court had granted stay to decree on 3.2.2005. The appellant converted herself to Islam religion and married with one Shakeel on 12.4.2012. It was therefore submitted that it is not case where sympathy could be shown to the appellant. The respondent was paying maintenance of Rs.1,000/- per month despite the fact that she got married to said Shakeel. The applicant, therefore, prayed that entire money be directed to be paid to the respondent. 18. The facts brought on record by the respondent under application are serious in nature and throws much light on the matter in its entirety. In the light of development which had taken place prior to filing of the petition and after disposal of matter by the Family Court, it certainly reveals that it is not at all advisable now to direct the parties to stay together or to disturb the impugned judgment and decree passed by the trial Court. 19. Learned counsel for the respondent referred to the judgment in Mahavir Singh and Others Vs. Naresh Chandra and Anr. (2001) 1 Supreme Court Cases 309. 20. Learned counsel for the appellant referred to the judgment in Bhari Sher Jang Singh and Anr. Vs. Smt. Virinder Kaur 1979 Cri. L.J. 493; Pratibha Rani Vs. Suraj Kumar and Anr. AIR 1985 SC 628 . We have perused the judgment cited (supra). 21. Naresh Chandra and Anr. (2001) 1 Supreme Court Cases 309. 20. Learned counsel for the appellant referred to the judgment in Bhari Sher Jang Singh and Anr. Vs. Smt. Virinder Kaur 1979 Cri. L.J. 493; Pratibha Rani Vs. Suraj Kumar and Anr. AIR 1985 SC 628 . We have perused the judgment cited (supra). 21. The Respondent original petitioner had placed on record medical papers concerning treatment given to the appellant herein. He further contended in his petition filed before the Family Court that on his complaint, the police of Vakola police station recorded statement of the appellant in which she informed the police that because of sickness she thought of committing suicide. She had admitted before the doctor that she had no marital problem. The complaint given to Vakola police station on 2nd December, 2002 is at Exhibit-H of the trial Court order. 22. In the cross examination of the appellant, she admitted that the respondent was in custody for 4 to 5 days after she lodged complaint against him. She further admitted that inspite of inquiry conducted by the police jewellery was not found in residence of the respondent. A suggestion was given to her that jewellery as described by the appellant was not offered to her by her parents. The respondent accepted before the court that she had not produced list of jewellery before the court. She denied that she was moving around with one Chintya as he was friend of the appellant. The respondent original petitioner denied suggestion that job in airlines was secured by him due to efforts made by father of the appellant. The respondent had deposed before the court in detail in respect of sickness suffered by the appellant. According to the respondent, the appellant tried to commit suicide on 3.10.1999, 28.10.1999, 4.11.1999 and 23.12.1999. The respondent denied suggestion in respect of ill treatment given by him to the appellant. The respondent further deposed that on 23.12.1999 the appellant had tried to pour kerosene on her person. After that incident, parents of the appellant were called and they had taken her away with them. The respondent is unable to state as to whether at the time of pregnancy of the appellant, she was referred to Psychology centre. 23. The oral evidence brought on record and documents placed on record suggest that relation between the parties had suffered set back. The respondent is unable to state as to whether at the time of pregnancy of the appellant, she was referred to Psychology centre. 23. The oral evidence brought on record and documents placed on record suggest that relation between the parties had suffered set back. The relationship had irretrievably broken. We do not find any chances of the appellant and respondent reconciling and settling the disputes. In the facts of case we do not notice any error on part of the Family Court in passing the impugned judgment and order. 24. The trial Court considered the issues properly, scanned evidence and recorded reasons and arrived at conclusion which in our view do not call for interference. We do not notice any manifest error or perversity in the view adopted by the trial Court. There is no merit in the appeal. 25. Appeal is dismissed. Decree be drawn up accordingly. No costs. (A.R.JOSHI, NARESH.H.PATIL, J.)