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2018 DIGILAW 2045 (BOM)

Shrikant Kishor Puri v. Sau. Shradha @ Padma

2018-08-20

V.M.DESHPANDE

body2018
JUDGMENT V.M. Deshpande, J. (Oral) - The present appeal is directed against the judgment and award passed by the learned 2nd Adhoc Additional District Judge, Yavatmal dated 31.8.2006 in Hindu Marriage Petition No. 30/2004, whereby the learned Judge of the Court below dismissed the petition for divorce filed on behalf of the appellant. 2. The appellant had filed the petition for divorce against the respondent under Section 13(1)(ia)( ib) of the Hindu Marriage Act, 1955. 3. The marriage between the appellant and the respondent, as per the petition, was solemnised on 20.4.1999. Thereafter, the respondent came in her matrimonial house, which consist of the mother of the appellant and his younger brother. As per the petition, the marriage of the respondent with the appellant was solemnised against her wish and therefore, she was not behaving properly. The pleadings in the petition show that the respondent used to always insult the appellant and his aged mother and thereby causing mental cruelty to him. The gist of the petition is that the respondent always used to leave her matrimonial house and used to reside in her parental house and was always reluctant in returning to her matrimonial house. It is also stated in the petition that whenever the appellant used to visit the parental house of the respondent to fetch her, that time she used to insult the petitioner. It is also stated in the petition that the matter was referred to Womens Grievances Committee at Wardha and before the said Committee, it was stated by the respondent that unless the appellant resides separately from his aged mother, she will not accompany with him. With these basic pleadings, the petition for divorce was filed before the Court below. 4. On being summoned, the respondent put her appearance before the Court below and filed her written submissions vide Exh.15. All the adverse allegations were denied by the respondent. On the rival pleadings, following issues were framed by the Court below : Issues Findings 1. Whether the petitioner proves that the respondent treated him with cruelty ? .....No 2. Whether the petitioner proves that the respondent has deserved him for a continuous period of not less than two years immediately preceding the presentation of petition ? .....No 3. Whether the petitioner is entitled to decree of divorce as prayed ? ......No 4. What order and relief ? ...As per final order. 5. .....No 2. Whether the petitioner proves that the respondent has deserved him for a continuous period of not less than two years immediately preceding the presentation of petition ? .....No 3. Whether the petitioner is entitled to decree of divorce as prayed ? ......No 4. What order and relief ? ...As per final order. 5. In order to prove their respective case, the petitioner as well as the respondent entered into the witness box. Apart from the petitioner, the petitioner examine three other witnesses. The respondent did not examine any other witness except her. 6. After appreciating the pleadings, the documents and evidence as brought on record, the Court below vide impugned judgment and decree dismissed the petition. Hence, this appeal. 7. I have heard Shri S.S. Bhalerao, the learned counsel for the appellant. Nobody put appearance in the present appeal for the respondent, though she has been duly served. 8. After hearing the learned counsel for the appellant and after perusing the record, following points do arise for my consideration : 1. Whether the Court below was right in dismissing the Hindu Marriage Petition filed on behalf of the appellant ? 2. What order ? 9. The appellant''s evidence is on the line of the pleadings made by him in the marriage petition. In the petition, it is specifically pleaded by the appellant that the respondent was insisting that she will reside and/or their matrimonial life can go on only when the appellant reside separately from his mother. 10. Exh.54 is the disability certificate given by the appropriate authority. It pertains to the mother of the appellant. Perusal of said certificate shows that disability of the mother of the appellant is to the extent of 65%. 11. In paragraph 5 of the petition filed before the Court below, the appellant has pleaded that a false complaint was lodged by the respondent against him, his mother and younger brother that she is having ill-treatment at their hands. It is also pleaded that since the said report was found to be incorrect one, no offence was registered against the appellant. It is also pleaded that since the said report was found to be incorrect one, no offence was registered against the appellant. It is also pleaded that though the offence was not registered, attempts were made for reconciliation between the parties and in that reconciliation proceeding, it was stated by the respondent that she will cohabit with the appellant only in the event the appellant residing separately from his family consisting of his handicap mother and younger brother. The written statement filed by the respondent shows that these particular pleadings are not specifically denied. 12. In order to prove the aforesaid pleadings, the appellant has examined PW4 Rajnitai Bhimraoji Wankhede. This witness states that she is Member of Womens Grievances Committee, which is formed in Wardha district under the aegis of Superintendent of Police, Wardha. Her evidence would show that the respondent approached to the said Committee and the Committee tried to reconcile the dispute between husband and wife. It would be useful to refer to the following portion from the evidence of said witness- " It is the contention of the said applicant Shradha that if the said husband would reside separately then she would go to reside with him. It is her also another contention that she should not be ill treated by her mother-in-law. The witness volunteers that the said responsibility if she goes to reside with her husband is on the and if there is complaint by mother-in-law, they will take action against said mother-in-law. The said Shradha was ready to reside with her husband but her main contention was that the non-applicant i.e. her husband shall reside separately. The statement of Shradha alias Padma Shrikant Puri was recorded before me and there is a signature of herself on the same. I had brought the original of the same. The original is seen and the said copy filed on record is correct as per original and hence it is Exh.64. I had tried along with other Committee Members to settle the matter for 8 to 10 times but it was of no use." The aforesaid evidence is not challenged by the respondent when Smt. Wankhede (PW4) was under the cross-examination. Not only that, the respondent in her evidence has specifically admitted about the execution of document (Exh.64). 13. I had tried along with other Committee Members to settle the matter for 8 to 10 times but it was of no use." The aforesaid evidence is not challenged by the respondent when Smt. Wankhede (PW4) was under the cross-examination. Not only that, the respondent in her evidence has specifically admitted about the execution of document (Exh.64). 13. Thus, it is crystal clear that the respondent was adamant that she will cohabit with the appellant only in case the appellant is ready to reside separately from his mother. Here, it is to be mentioned that the mother of the appellant is a handicap person. In the aforesaid, evidence as available on record, in my view, the learned counsel for the appellant has rightly relied on the following observations of the Hon''ble Apex Court in the case of Narendra v. K. Meena, reported in AIR 2016 Supreme Court 4599 " 11. The Respondent wife wanted the Appellant to get separated from his family. The evidence shows that the family was virtually maintained from the income of the Appellant husband. It is not a common practise or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meagre income. In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her. In the instant case, upon appreciation of the evidence, the trial Court came to the conclusion that merely for monetary considerations, the Respondent wife wanted to get her husband separated from his family. The averment of the Respondent was to the effect that the income of the Appellant was also spent for maintaining his family. In the instant case, upon appreciation of the evidence, the trial Court came to the conclusion that merely for monetary considerations, the Respondent wife wanted to get her husband separated from his family. The averment of the Respondent was to the effect that the income of the Appellant was also spent for maintaining his family. The said grievance of the Respondent is absolutely unjustified. A son maintaining his parents is absolutely normal in Indian culture and ethos. There is no other reason for which the Respondent wanted the Appellant to be separated from the family the sole reason was to enjoy the income of the Appellant. Unfortunately, the High Court considered this to be a justifiable reason. In the opinion of the High Court, the wife had a legitimate expectation to see that the income of her husband is used for her and not for the family members of the Respondent husband. We do not see any reason to justify the said view of the High Court. As stated herein-above, in a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practise and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the Respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the Respondent wife to constrain the Appellant to be separated from the family would be torturous for the husband and in our opinion, the trial Court was right when it came to the conclusion that this constitutes an act of ''cruelty''." 14. No specific evidence is brought on record by the respondent for compelling the appellant to reside separately along with her from his other family members. In absence of such positive evidence, in my view, when the respondent withdrew herself from the cohabitation with the appellant, it amounts to mental cruelty. This particular aspect was not properly considered by the Court below. In absence of such positive evidence, in my view, when the respondent withdrew herself from the cohabitation with the appellant, it amounts to mental cruelty. This particular aspect was not properly considered by the Court below. Further, in my view, the Court below ought to have given much weight age to document (Exh.64), which was executed by the respondent before the Women''s Grievances Committee before whom she alone had approached for reconciliation. Since, no plausible reason was given by the respondent for the appellant residing separately with her from his other family members, it appears that the conciliation could not happen. 15. In view of the aforesaid, in my view the Court below ought not to have dismissed the petition. Hence, I pass the following ORDER 1. The appeal is allowed. 2. The judgment and decree passed by the learned 2nd Adhoc Additional District Judge, Yavatmal dated 31.8.2006 in Hindu Marriage Petition No. 30/2004 is hereby quashed and set aside. 3. Hindu Marriage Petition No. 30/2004 filed by the appellant before learned 2nd Adhoc Additional District Judge, Yavatmal for divorce, is hereby allowed. 4. The marriage between the appellant and the respondent solemnised on 20.4.1999 is hereby dissolved by the decree of divorce. 5. The first appeal is disposed of in the aforesaid terms with no order as to costs.