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2014 DIGILAW 1351 (BOM)

Anupama Ashok Aher v. Ashok Bajirao Aher

2014-06-26

A.S.GADKARI, V.K.TAHILRAMANI

body2014
ORAL JUDGMENT Per Smt. V.K. Tahilramani, J. : 1. Heard learned Counsel for the appellant and learned Counsel for the respondent. For the sake of convenience, the appellant is referred to as wife and respondent is referred to as husband. 2. The appellant-wife, original respondent, has preferred this appeal against the judgment and decree dated 26th December 2012 passed by the Family Court, Bandra, Mumbai in Petition No.A-2724 of 2010. The husband had filed Petition No.A-2724 of 2010 for a decree of divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act and for permanent custody of daughter Apurva. Petition No.A-2724 of 2010 filed by the husband came to be allowed, hence, this appeal. 3. The brief facts of the case are as under: (i) The marriage of the appellant and the respondent took place on 4.5.1996 at Deswale Mala, Taluka-Ambegaon, District-Pune as per Hindu vedic rites and customs. On 27.11.1999 they were blessed with a daughter Apurva. Thereafter, husband filed a divorce petition bearing No.A-2470/2006 on the ground of cruelty. Thereafter, the matter was settled between the parties and the husband has withdrawn the divorce petition on 19.11.2009. Thereafter, the husband and wife started residing together along with their daughter. The case of the husband is that, his wife used to pick up quarrel with him and used to abuse him in filthy language. She made allegations that the husband was suffering from AIDS and she refused to keep physical relationship with him. On 13.7.2010 the wife assaulted the husband with a rolling pin on the head due to which he suffered some injuries and four stitches were put on his head. In June 2010, the husband's cousin sister met with an accident and therefore the husband went to see his sister in hospital in June 2010, but on that count the wife picked up a quarrel with him and created a big scene and did not allow him to sleep. The wife abused him and his parents. The wife has stated that the husband is having extramarital relationship with one lady. The conduct of the wife as stated above, caused cruelty to the husband and therefore he preferred the petition for divorce. 4. We have heard Mr. G.S. Bhat, the learned Counsel for the appellant-wife and Mrs. Manjula Rao, the learned Counsel for the respondent-husband. The wife has stated that the husband is having extramarital relationship with one lady. The conduct of the wife as stated above, caused cruelty to the husband and therefore he preferred the petition for divorce. 4. We have heard Mr. G.S. Bhat, the learned Counsel for the appellant-wife and Mrs. Manjula Rao, the learned Counsel for the respondent-husband. We have perused the petition filed by the husband, written statement as well as the evidence led by the parties. Both parties have examined themselves and no other witness has been examined by them. 5. The husband has specifically pleaded and stated in his evidence that on 13.7.2010 his wife asked their daughter to bring her mobile, but the daughter refused to give it to her and on that count his wife picked up a quarrel and started to beat their daughter. At that time, the husband tried to intervene. But the wife assaulted husband on his head with rolling pin due to which he sustained head injury and four stitches were put on his head. The husband's Advocate had put a question to the wife in the cross-examination that the husband has sustained injuries and four stitches were put on his injury when she assaulted him by rolling pin. Thereupon she answered that she had not seen the injury. The medical papers were shown to the wife during the cross-examination, when she admitted that O.P.D. Registration number is mentioned on the back side of the Exhibit 47. On perusal of the medical paper Exhibit 47, it clearly shows that the husband had taken medical treatment in the hospital of the Municipal Corporation of Gr. Mumbai on 13.7.2010. The husband had given history before the Medical Officer that there is injury on his head due to assault by a rolling pin and it was bleeding injury. Hence, the Exhibit 47 clearly supports the case of the husband that on 13.7.2010 he had sustained injury on his head due to assault by rolling pin. 6. The evidence of the husband further shows that he had filed a complaint before the police on the same day when he was assaulted i.e. 13.7.2010. He has produced a copy of the complaint Exhibit 57. This complaint also shows that the wife assaulted him on 13.7.2010. 6. The evidence of the husband further shows that he had filed a complaint before the police on the same day when he was assaulted i.e. 13.7.2010. He has produced a copy of the complaint Exhibit 57. This complaint also shows that the wife assaulted him on 13.7.2010. Therefore oral evidence of the husband about the assault on him on 13.7.2010 is supported by documentary evidence i.e. medical certificate Exhibit 47 as well as FIR Exhibit 57. Therefore, in our opinion, the evidence of the husband about the occurrence of the incident on 13.7.2010 wherein the wife had assaulted him on his head by rolling pin and he sustained injury appears to be trustworthy and believable. 7. Learned Counsel for appellant submitted that earlier a divorce petition was filed by the husband which was withdrawn on 19.11.2009. Thereafter parties stayed together only for three months. In such case, it cannot be believed that the incident occurred on 13.7.2010 wherein the wife had assaulted the husband because that time they were not living together. To support the contention he placed the reliance on the cross-examination of the husband wherein he sated that after withdrawing the petition, he stayed with the wife for three months and thereafter he stayed with his sister at Kalyan. However, it is pertinent to note that in cross-examination a suggestion has been put to the husband that six months after they started to stay together the husband started quarreling with the wife. This suggestion clearly shows that the case of the wife is that they were residing together even after six months after 19.11.2009 and after six months husband started quarreling with her. This shows that they were staying together on 13.7.2010 when the incident of assault with rolling pin on the head of husband has happened. Thus, the case of the husband is that the wife treated him with cruelty by physically assaulting him as he tried to intervene while the wife was beating their daughter. 8. The second ground on which the husband has alleged that he was treated with cruelty, is that his wife had expressed her doubt about his character and she made allegations against him that he was suffering from AIDS and she refused to have physical relationship with the husband. 8. The second ground on which the husband has alleged that he was treated with cruelty, is that his wife had expressed her doubt about his character and she made allegations against him that he was suffering from AIDS and she refused to have physical relationship with the husband. Though the wife has denied the said fact, in her cross-examination it is brought on record that she called for report of the husband in relation to the blood donation. A question was put to the wife “why you made application and called report of the Petitioner of blood donation ?”. Thereupon the wife gave answer that she wanted to know whether her husband was regularly donating the blood and/or he is having HIV or other disease. The above answer of the wife shows that she was having doubt that the husband is suffering from HIV or other disease. Therefore she made such allegations and called for report of the husband relating to blood donation. Therefore from this application made by the wife the evidence of the husband that the wife used to make allegations that he is suffering from AIDS and she refused to maintain physical relation with him and refused to have sex, appears to be trustworthy and believable. Thus the case of the husband is that he was treated with cruelty by making serious allegations against him that he was suffering from HIV and on that ground the wife refused to maintain physical relationship with the husband. 9. The evidence of husband shows that his cousin sister met with an accident and he went to the hospital to visit her in June 2010, but on that ground the wife picked up a quarrel with him, abused him and his parents and did not allow him to sleep. It is pertinent to note that the wife has admitted in her cross-examination in para 31 that the dispute had taken place between her and the husband. This clearly shows that the wife has admitted the husband's stand that he went to meet his cousin sister in the hospital due to that dispute had taken place between him and his wife and on this count the wife abused him and his parents and did not allow him to sleep. 10. The wife in her written statement has specifically stated that her husband is having paramour. 10. The wife in her written statement has specifically stated that her husband is having paramour. In such case the burden lies on her to prove that the husband is having extramarital relationship with somebody. Admittedly, the wife has not produced any cogent and trustworthy evidence to show that the husband is having extramarital relationship with somebody. It is settled law that when the wife makes the allegations against her husband that he is having extramarital relationship and if she is not able to prove the same, it causes cruelty to the husband. 11. We may make reference to the decision in case of Ramesh Laxman Sonawane Vs. Meenaxi Ramesh Sonawane1, wherein the wife made allegations against her husband that he is having extramarital relations with Y, but she failed to prove it. Therefore, it was held that the allegations made by the wife against her husband are not proved and therefore it is sufficient to hold that wife treated the husband with cruelty and on that ground husband is entitled to get a decree of divorce. In the present case in hand, we have held that the wife has made allegations against the husband that he is having extramarital relations with somebody, but it is not proved and therefore the facts in the above authority and the present case in hand are identical. The same view has been taken by this High Court in the case of Manisha Sandeep Gade Vs. Sandeep Vinayak Gade, AIR 2005 Bom 180 and Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate, II(2001) DMC 64(DB). In view of the above authorities, in our opinion, the petitioner has proved that the wife treated him with cruelty by making wild allegations that he is having relationship with some lady and accused the husband of having HIV and she refused to keep physical relationship with him and she also caused injury on his head by assaulting him with rolling pin and abused him and his parents. 12. As far as the aspect relating to the custody of the daughter Apurva is concerned, Consent Terms Exhibit 20 was entered into between the husband and the wife wherein the wife voluntarily consented to give the custody of the daughter to the husband. 13. Thus, only aspect which is challenged in this appeal is grant of divorce on the ground of cruelty. 13. Thus, only aspect which is challenged in this appeal is grant of divorce on the ground of cruelty. In view of the above evidence on record, we see no merit in the Appeal and Appeal is dismissed, with no order as to costs.