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2015 DIGILAW 1501 (BOM)

Sau. Lilesh v. Vinod Ramrichpal Agrawal

2015-07-08

PRASANNA B.VARALE, VASANTI A.NAIK

body2015
JUDGMENT : VASANTI A NAIK, J. By this family Court appeal, the appellant-Wife challenges the judgment of the Family Court, Nagpur dated 13.06.2012 allowing the Hindu Marriage Petition filed by the husband and dissolving the marriage solemnized between the parties on 10.07.1999, by a decree of divorce. 2. Few facts giving rise to the first appeal are stated thus- The appellant-Wife and the respondent-Husband were married at Nagpur according to Hindu Rites and rituals on 10.07.1999. The wife started residing in the matrimonial home in a joint family. According to the husband, the wife was continuously insisting for a separate residence and always forced the husband to purchase a separate flat. Despite the birth of a baby girl, Ishika on 20.11.2001, it is the case of the husband, that the wife persisted in her demand of having a separate residence. The husband and the wife, therefore, started residing in a separate room with a separate kitchen, still, the wife was unhappy. It is pleaded by the husband that whenever the husband played with the children of his brothers, the wife used to give threats to him that she would throw her daughter from the first floor. It was pleaded that the husband was always under stress and pressure due to the threats by the wife. It was pleaded that the wife had asked the husband to sever his ties with his family members and though the wife and the husband started residing separately, she was suspicious that the husband was maintaining relationship with his mother, brothers and nephews. According to the husband, the husband suffered tremendously due to the aforesaid behaviour of the wife. It was pleaded that the wife left the matrimonial home in May2003 and refused to attend the marriage ceremonies of the brothers of the husband namely Ashok and Dipak, in the years 2005 and 2008 respectively. It was pleaded that though the wife was invited for the marriage ceremonies, she flatly refused and abused her motherinlaw in filthy language. It was pleaded that on the death of the adoptive father of the husband, after repeated requests, the wife came to the house of the husband and stayed in the matrimonial home for twelve days. It was pleaded that though the wife was invited for the marriage ceremonies, she flatly refused and abused her motherinlaw in filthy language. It was pleaded that on the death of the adoptive father of the husband, after repeated requests, the wife came to the house of the husband and stayed in the matrimonial home for twelve days. After the completion of twelve days, it is pleaded that the wife again left the matrimonial house with a promise to return after 11 ½ months but, she never returned to the matrimonial home. The husband pleaded that the wife had subjected the husband to cruelty by asking him to reside separately from the joint family and restraining him from playing with the children of his brothers. It was pleaded that the husband was constantly under mental pressure and fear due to the acts of cruelty inflicted by the wife on him. The husband, therefore, filed the Hindu Marriage Petition on the ground of cruelty and desertion. 3. The wife filed the written statement and denied the claim of the husband. The wife specifically denied the facts pleaded by the husband in the Hindu Marriage Petition. It was pleaded by the wife that the husband and his family members were harassing her, both, physically and mentally, as she had refused to bring dowry from her parents. It was pleaded that she was beaten mercilessly by her husband and his family members for not bringing dowry and was thrown out of the matrimonial home. It was pleaded that due to the illtreatment by the husband and his family members, she had registered a complaint against the husband and some of his family members for offence punishable under Section 498A read with Section 34 of the Indian Penal Code. 4. On the aforesaid pleadings of the parties, the Family Court framed the issues and on an appreciation of the evidence on record, held that the husband was unsuccessful in proving that the wife had deserted the husband for a continuous period of not less than two years. The Family Court held that the wife had treated the husband with cruelty as she had not substantiated the serious allegations levelled by her against the husband and his family members in the written statement. The Family Court held that the wife had treated the husband with cruelty as she had not substantiated the serious allegations levelled by her against the husband and his family members in the written statement. The Family Court held that the wife had levelled false and frivolous allegations against the brothers and their wives and the unsubstantiated allegations, specially in respect of dowry and illtreatment, amounted to cruelty. The Family Court allowed the Hindu Marriage Petition filed by the husband on the ground of cruelty. The judgment of the Family Court is challenged by the wife in this family Court appeal. 5. Shri Meghe, the learned counsel for the wife, submitted that the Family Court was not justified in allowing the Hindu Marriage Petition filed by the husband when the Family Court had clearly held that the husband had failed to substantiate the allegations levelled by him against the wife. It is stated that the Family Court was not justified in allowing the Hindu Marriage Petition solely on the ground that the wife had failed to prove the allegations levelled by her against the husband and his family members in respect of the demand of dowry. It is stated that the wife had filed the complaint against the husband and some of his family members at Durg before the husband filed the Hindu Marriage Petition at Nagpur. It is stated that the Hindu Marriage Petition was filed by the husband with a view to overcome the complaints filed by the wife in the police station at Durg. It is stated that merely because the wife had not substantiated the allegations levelled by her against the husband and his family members in the written statement, the Family Court could not have granted the decree of divorce in favour of the husband. It is stated that the wife had stated in her examination-in-chief that the husband and her inlaws were sometimes demanding Rs.1,00,000/, sometimes Rs.50,000/and sometimes Rs.25,000/. It is stated that the wife had stated in her evidence that she was illtreated by the husband and his family members as her parents had failed to accede to their demand of Rs.10,00,000/for purchasing a flat. It is stated that the wife had stated in her evidence that she was illtreated by the husband and his family members as her parents had failed to accede to their demand of Rs.10,00,000/for purchasing a flat. It is stated that there is no allegation in the criminal complaints filed by the wife against Poonam, the wife of the brother of the husband, and though a complaint against Poonam was not filed, the Family Court has unnecessarily made an issue in regard to the filing of a false complaint against Poonam. It is stated that in the circumstances of the case, the husband was not entitled to a decree of divorce, specially when he had failed to prove the allegations made by him against the wife in the Hindu Marriage Petition. 6. Shri Tahaliyani, the learned counsel for the respondent, supported the judgment of the Family Court and submitted that the Family Court was justified in granting a decree of divorce in favour of the husband as the wife had made false and reckless allegations against the husband and his family members in the written statement and the allegations were not substantiated by the wife. It is stated that it is a well settled position of law that false and baseless allegations made against the spouse in a written statement would tantamount to cruelty, if they are not proved by the one, who levels the same. It is stated that serious allegations in regard to demand of dowry, beating the wife in view of the demand, etc. were made by the wife in the written statement and the wife has utterly failed to substantiate her case. The learned counsel relied on the judgments reported in AIR 1994 SC 710 (N. Bhagat Versus Mrs.D. Bhagat) and AIR 1994 Bombay 246 (Rajan Vasant Revankar Versus Mrs.Shobha Rajan Revankar) to substantiate his submission that false and reckless allegations made by the wife against the husband in the written statement, if not proved would result in cruelty to the husband. It is stated that the wife had made some bald statements in regard to the demand of dowry in the written statement and had stated that in view of the refusal on the part of the wife to accede to the demand, she was mercilessly beaten by the husband and his family members. It is stated that the wife had made some bald statements in regard to the demand of dowry in the written statement and had stated that in view of the refusal on the part of the wife to accede to the demand, she was mercilessly beaten by the husband and his family members. It is stated that though the wife had left the matrimonial home in the year 2003, never to return, the wife filed the criminal complaints against the husband and his family members in the police station at Durg in the year 2009. It is stated that the long delay of six years in filing the criminal complaints is sufficient to prove that the complaints were false and baseless. It is stated that though no specific allegations and incidents in respect of the demand of dowry were made in the written statement, the wife stated in her evidence that the husband had demanded a sum of Rs.25,000/, Rs.50,000/and Rs.1,00,000/on different occasions. It is submitted that the wife had stated in her deposition that the husband had demanded a sum of Rs.10,00,000/for purchasing a separate flat and had also asked for ornaments and other articles at the time of marriage. It is stated that the wife not only made allegations against the husband but, also levelled serious allegations against her inlaws in the complaints filed in the Durg police station. It is stated that the complaints were clearly false as the wife had instituted a petition for restitution of conjugal rights at Bemitra in Chhatisgarh. The learned counsel for the respondent sought for the dismissal of the family Court appeal. 7. On hearing the learned counsel for the parties and on a perusal of the Record & Proceedings, it appears that the following points arise for determination in this family Court appeal. I) Whether the husband had succeeded in proving that the wife had treated him with cruelty? II) Whether the husband was entitled to a decree of divorce on the ground of cruelty? III) What order? 8. To answer the aforesaid points for determination, it would be necessary to consider the pleadings of the parties and the evidence tendered on record. I) Whether the husband had succeeded in proving that the wife had treated him with cruelty? II) Whether the husband was entitled to a decree of divorce on the ground of cruelty? III) What order? 8. To answer the aforesaid points for determination, it would be necessary to consider the pleadings of the parties and the evidence tendered on record. It would not be necessary to consider the pleadings in the Hindu Marriage Petition filed by the husband in regard to the cruelty inflicted by the wife and his evidence on the said pleadings as the Family Court has held that the husband has not been successful in proving the allegations made against the wife in the Hindu Marriage Petition. Since the Family Court has held that the wife had inflicted cruelty on the husband by making wild and reckless allegations against the husband and his family members and not proving the same, it would be necessary to consider the written statement of the wife. The wife had denied the case of the husband in the written statement. The wife had, however, pleaded in paragraph 8 of the written statement that the husband and his family members were harassing the wife mentally and physically for dowry. It was pleaded that since the wife refused to bring dowry from her parents, she was beaten mercilessly by the husband and his family members and was driven out of the matrimonial home without the ornaments. It was pleaded by the wife that due to the illtreatment meted out by the husband and his family members, she was constrained to lodge a complaint against the husband and his family members in Police Station Durg for the offence punishable under Section 498A read with Section 34 of the Indian Penal Code. The wife had made a bald statement in regard to the demand of dowry by the husband and his family members and the merciless beating by them due to the non-fulfillment of the demand of dowry. In the evidence on affidavit, the wife stated that she had filed a complaint at Police Station Durg against the husband and his inlaws for an offence punishable under Section 498A read with Section 34 of the Indian Penal Code. It was admitted by the wife that there was no conjugal relationship between the parties since 2003 after she left the matrimonial home. It was admitted by the wife that there was no conjugal relationship between the parties since 2003 after she left the matrimonial home. The wife admitted in her crossexamination that she had not made any complaint to the police station against her husband or inlaws when they assaulted her in the year 2003. It was admitted by the wife that she had filed a petition against the husband for restitution of conjugal rights. It was admitted that there is no mention in the written statement in regard to the wrongful demand of Rs.10,00,000/by the husband for purchasing a separate flat though she had stated so in her evidence on affidavit. The wife clearly admitted that she cannot name a single person, who knew that she was subjected to cruelty. The aforesaid admissions of the wife are considered by the Family Court for holding that the wife had failed to substantiate the wild and reckless allegations levelled by her against the husband and his family members in regard to the demand of dowry. The Family Court held that the allegations made by the wife were false and reckless. Though the wife had made bald statements in regard to the demand of dowry by the husband and his family members, the wife tried to improve her case in her evidence on affidavit to state that the husband had demanded a sum of Rs.10,00,000/for the purchase of a flat. The wife went on to state in her evidence that sometimes the husband and her inlaws demanded Rs.25,000/, sometimes Rs.50,000/and sometimes a sum of Rs.1,00,000/. The Family Court rightly discarded the aforesaid evidence of the wife as the said facts were not pleaded by her in her written statement. The Family Court considered, and rightly so, that though the wife had left the matrimonial home in the year 2003 and had visited the same only for a period of twelve days on the death of the adoptive father of her husband, she had filed criminal complaints in Durg Police Station in the year 2009 alleging therein that the husband and his family members had beaten her severely on her refusal to accede to their demand of dowry. The Family Court considered that the wife had admitted in her crossexamination that when she left the matrimonial home, Poonam was not married in the family of her husband. The Family Court considered that the wife had admitted in her crossexamination that when she left the matrimonial home, Poonam was not married in the family of her husband. We find from a perusal of the record that the Mahila Cell had summoned not only the husband and his mother and brother but, also Poonam who entered into the matrimonial house of the husband after she was married to his brother in 2005, i.e. after the wife left the matrimonial home in 2003. It is worth noticing that the husband had filed the Hindu Marriage Petition for a decree of divorce in the Family Court at Nagpur on 06.07.2009 and the wife had filed the criminal complaint against the husband and his family members just a couple of days before the filing of the Hindu Marriage Petition by the husband. It is most likely that the husband must have informed the wife of his intention of severing the marriage ties and whether she was ready for divorce by mutual consent and after knowing the intentions of the husband, the wife seems to have lodged the criminal complaints against the husband and his family members for the offence punishable under Section 498A read with Section 34 of the Indian Penal Code. It is difficult to believe that if the wife was severely illtreated by the husband and his family members and was mercilessly beaten on her failure to accede to the dowry demand, the wife would not have waited for more than six years to file a complaint in the police station at Durg. The proceedings filed by the wife against the husband for restitution of conjugal rights and the complaint filed by her for the offence punishable under Section 498A read with Section 34 of the Indian Penal Code cannot go hand in hand. If the wife was desirous of residing with her husband, it is not possible to believe that she could have lodged a complaint in respect of grave and serious offences, against her husband and his family members. The Family Court has rightly considered this aspect of the matter for holding that the wife had treated the husband with cruelty. The Family Court considered that though wild and reckless allegations were made by the wife against the husband in respect of dowry, the same were not proved. The Family Court has rightly considered this aspect of the matter for holding that the wife had treated the husband with cruelty. The Family Court considered that though wild and reckless allegations were made by the wife against the husband in respect of dowry, the same were not proved. The Family Court rightly held that the allegations levelled by the wife in the complaints appeared to be false. There was no base for the allegations made by the wife that her husband and his family members had demanded a sum of Rs.10,00,000/from the parents of the wife for purchase of the flat as the said fact was not pleaded by the wife in her written statement. The Family Court held that the nature of the allegations made by the wife was very serious and she had failed to prove the allegations. The Family Court observed that if there was any threat to the life and limb of the wife, she would not have expressed her desire to join the company of her husband by filing a petition for restitution of conjugal rights. It was held that on one hand, the wife had levelled serious allegations against the husband by filing criminal complaints, and on the other, she has filed the petition for restitution of conjugal rights. It is rightly submitted on behalf of the husband that wild and reckless allegations by the wife against the husband and his family members, if not proved by the wife, amount to cruelty. It would be worthwhile to refer to the judgments reported in AIR 1994 SC 710 (N. Bhagat Versus Mrs.D. Bhagat) and AIR 1994 Bombay 246 (Rajan Vasant Revankar Versus Mrs.Shobha Rajan Revankar). In the circumstances of the case, we do not find that the Family Court has committed any error whatsoever in granting a decree of divorce in favour of the husband. The findings recorded by the Family Court are based on a proper appreciation of the material on record. 9. In the result, the family Court appeal is dismissed with no order as to costs.