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2014 DIGILAW 1403 (BOM)

Mahesh Hitesh Parihar v. Vaishali Mahesh Parihar

2014-07-02

A.S.GADKARI, V.K.TAHILRAMANI

body2014
Judgment : Smt. V.K. Tahilramani, J. 1. Heard the learned counsel for the appellant and the learned counsel for the respondent. For the sake of convenience, hereinafter the appellant shall be referred to as the "husband" and the respondent shall be referred to as the "wife". 2. The husband has preferred this appeal against the judgment and decree dated 30.7.2013 passed by the Family Court, Mumbai in Petition No.A-2609 of 2008. The said petition was filed by the wife for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the ground of cruelty. The said petition came to be allowed by judgment and decree dated 30.7.2013, hence, this appeal. 3. On going through the judgment and the record, it is seen that divorce was granted on the ground of "cruelty" only on one count that is the parties had signed the consent terms (Exh. 33) on 30.1.2012 which consent terms were later on withdrawn by the husband by making application (Exh. 36) in the month of May, 2012. The Family Court was of the opinion that this act amounted to cruelty in view of the reasons stated in the application for withdrawal of the consent terms, and the fact that for all the months after signing the consent terms by the parties on 30.1.2012, the wife lived every day under the belief that the marriage is getting dissolved by mutual consent on the next date which belief was cruelly shattered. 4. The reasons given in the application Exh. 36 preferred by the husband for withdrawal of his consent, are as under: "I say that we being a Marwadi community taking divorce is not a custom and it will lower down image of my family in our community and it will effect my entire family which I would not like to do so. Therefore, I want to withdraw the said consent term". It is very much clear that, it is not because of any force, fraud, coercion or misrepresentation that the husband wants to withdraw from his consent. Two reasons have been given by the husband for withdrawing consent they are as under: (a) In his community, divorce is not a custom; (b) If he obtains divorce, it will lower down image of his family in his community which will affect his entire family. 5. Both the husband and the wife have signed the consent terms on 30.1.2012. Two reasons have been given by the husband for withdrawing consent they are as under: (a) In his community, divorce is not a custom; (b) If he obtains divorce, it will lower down image of his family in his community which will affect his entire family. 5. Both the husband and the wife have signed the consent terms on 30.1.2012. Consent terms are not casually prepared and settled immediately. It needs a lot of thought, discussions with family members, relatives and well wishers, negotiations inter se before finalizing it. Consent terms are not signed on the spot but only after a lot of deliberations and thought. Immediate family is definitely consulted before a decision is taken to sign consent terms and the consent terms are actually signed. Both the parties have signed the consent terms on 30.1.2012 before the Marriage Counselor only after reaching satisfaction that their grievances were getting solved. It is to be kept in mind that petition for divorce was filed by the wife in the year 2008 and consent terms were signed by the parties on 30.1.2012 by which time, the petition for divorce was pending for more than three years. Once the consent terms are signed, there needs to be a strong reason to withdraw from it. As stated earlier, the husband has withdrawn from the consent terms by making application Exh. 36 in the month of May, 2012 only for two reasons. From the application Exh. 36 it is clear that this withdrawal from consent terms was not because of any force, fraud, coercion or misrepresentation but only for two reasons i.e. in his community, divorce is not a custom and if he obtains divorce, it will lower down image of his family in his community which would affect his entire family. The husband while discussing this issue with his family and well wishers must have also definitely thought over and discussed this issue of custom and image of family and after taking the opinion of his family members and others signed the consent terms. It is not the case of the husband that he is withdrawing his consent because he wants to give his marriage another chance and he will try to convince his wife to give their marriage another chance. It is not the case of the husband that he is withdrawing his consent because he wants to give his marriage another chance and he will try to convince his wife to give their marriage another chance. He has not at all kept the feelings and emotions of his wife in view while giving the aforesaid two reasons for withdrawing his consent. 6. After signing the consent terms on 30.1.2012, for the first time, on 27.3.2012 the learned advocate for the husband expressed the intention of the husband to withdraw from the consent terms, the application (Exh. 36) for withdrawal from consent terms was filed by the husband on 7.5.2012. One cannot loose sight of the fact that from 30.1.2012 that is the date the consent terms were signed by the parties till the wife was informed about the withdrawal of consent the wife lived every day under the belief that the marriage is getting dissolved by mutual consent on the next date which belief was cruelly shattered. 7. It is pertinent to note that admittedly the total cohabitation between the parties was only for a period of 21 days. It can safely be stated that the husband and wife were divorced emotionally and mentally on the day of signing the consent terms (Exh. 33) on 30.1.2012. It only remained to be dissolved on paper at a later stage. Suddenly, the husband feels that he wants to preserve the image of his family in the community and does not want a divorce. The husband therefore, unilaterally without any discussions with the wife, withdrew from the consent terms. It appears that to him the wife and her feelings are non-existent. This amounts to mental cruelty. It also reflects the husband's casual and callous approach towards his wife and towards the marriage. If such is the approach of the husband towards her and the marriage, the wife cannot be expected to continue with the marriage as it amounts to mental cruelty. This mental cruelty caused during the pendency of the litigation cannot be ignored. Thus, the learned Judge of the Family Court has rightly answered issue No.1 in the affirmative that there was cruelty to the wife at the hands of the husband after solemnization of the marriage. 8. The learned counsel for the husband has placed reliance on the decision of the Supreme Court in the case of Sureshta Devi Vs. Thus, the learned Judge of the Family Court has rightly answered issue No.1 in the affirmative that there was cruelty to the wife at the hands of the husband after solemnization of the marriage. 8. The learned counsel for the husband has placed reliance on the decision of the Supreme Court in the case of Sureshta Devi Vs. Om Prakash, reported in 1991(2) SCC 25 . He pointed out that in the said decision, it is observed that mutual consent for obtaining divorce can be withdrawn unilaterally by a party. On perusal of the said decision, it is seen that in the said case, mutual consent was withdrawn by one of the parties before passing decree of divorce and yet the Court granted divorce under Section 13(B) of the Hindu Marriage Act i.e. divorce by mutual consent. In these circumstances, the Supreme Court has held that the Court below could not have passed decree of divorce by mutual consent in the said case and no decree under Section 13(B) of the Hindu Marriage Act can be passed in such circumstances. In the present case, it is seen that the decree is not passed under Section 13(B) of the Hindu Marriage Act but it is passed under Section 13(1)(ia) of the Act that is on the ground of cruelty. In our view, in view of the reasons given by the husband for withdrawal of consent and the conduct of the husband is such that it amounts to cruelty, hence, the learned Judge of the Family Court has rightly granted divorce on the ground of cruelty. 9. As far as the grant of permanent alimony of Rs.2,00,000/-is concerned, in the facts and circumstances of this case, it appears to be just and proper. In this view of the matter, the Family Court Appeal is dismissed.