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2018 DIGILAW 720 (BOM)

Harish Pandurang Rathod v. Chanda Harish Rathod

2018-03-12

SWAPNA JOSHI, VASANTI A.NAIK

body2018
JUDGMENT Vasanti A Naik, J. (Oral) - The family court appeal is ADMITTED and heard finally with the consent of the learned counsel for the parties. 2. By this family court appeal, the appellant-husband challenges the judgment of Family Court, Akola, dated 17.05.2017 dismissing the petition filed by the appellant for a decree of divorce on the ground of cruelty. 3. Few facts giving rise to the family court appeal are stated thus:- The appellant-husband (here in after referred to as ''the husband'' for the sake of convenience) and the respondent wife (hereinafter referred to as ''the wife'') were married at Nandura on 23.05.2013 as per the custom prevailing in their community. According to the husband, the wife did not come to the marriage pendal at the time of the marriage and due to her absence, the invitees at the marriage ceremony started whispering whether the bride had eloped. It is pleaded by the husband in the petition filed by him for a decree of divorce on the ground of cruelty that the wife came to the marriage pendal two hours after the mahurat and appeared to be very annoyed and angry. It is pleaded that after the marriage, the wife started residing in the matrimonial home and acted that she was fainting and under that pretext she used to take rest or lie down in a separate room. It is pleaded that the wife avoided to participate in the ceremonies performed in the house of the husband after the marriage. It is pleaded that on the night of the Satyanarayan Pooja, the wife received a call on her mobile at about 12.00 in the midnight and when the husband awoke from his sleep, he saw the wife talking on the phone. It is pleaded that on seeing that the husband had woken up, the wife disconnected the call and when the husband asked the wife as to who had called her, she did not give an answer and when the husband attempted to seek her mobile, she took out the sim card and destroyed the same. It is pleaded that the wife resided properly in the matrimonial home for about two months and thereafter she started fighting with the husband and his old parents on trifle issues. It is pleaded that since the wife conceived during the said period, the husband started taking more care of her. It is pleaded that the wife resided properly in the matrimonial home for about two months and thereafter she started fighting with the husband and his old parents on trifle issues. It is pleaded that since the wife conceived during the said period, the husband started taking more care of her. It is pleaded that the wife was however not willing to reside with the parents of the husband in the matrimonial home and after fighting with them and abusing them she had assaulted the mother of the husband with fists and had gone to the extent of pushing her. It is pleaded that the mother of the husband would have fallen down had the husband not helped her in regain her balance. It is pleaded that the fights between the wife and her in-laws were continuous and unabated and on 06.05.2014, the wife again raised her hand to assault the mother of the husband. The parties started residing separately after the said incident by hiring a room of Daya ram Daberao on rent. It is pleaded that even in the rented premises, the wife ceaselessly fought with the husband. It is pleaded that the wife always abused the husband and even called him ''donkey''. It is pleaded that the landlady of the house tried to make the wife understand that she should not behave in such a fashion but the wife did not mend her ways. It is pleaded that in September 2014, the wife went to her parental home for the delivery and gave birth to a female child, who was named as Swara, on 11.09.2014. It is pleaded that when the husband went to see the baby girl with his friend he was not treated well. It is pleaded that the naming ceremony of the daughter was held in the last week of November 2014 but the husband and his parents were not invited for the same. It is pleaded that the four sisters of the husband were also not invited for the naming ceremony. When the wife returned to the rented home after the delivery of the child, the wife did not permit the parents of the husband to meet Swara. It is pleaded that the parents of the husband were never permitted to meet their granddaughter. When the wife returned to the rented home after the delivery of the child, the wife did not permit the parents of the husband to meet Swara. It is pleaded that the parents of the husband were never permitted to meet their granddaughter. It is pleaded that the wife never cooked the food for the husband on time and on many occasions, he had to leave belatedly for the office with empty stomach. It is pleaded that since the wife always threatened the husband that she would involve the husband and his family members in a false case and ensure that the husband goes to jail, the husband had lodged a complaint against the wife in Mahila Takrar Niwaran Kendra on 17.06.2015 in that regard. It is pleaded that the wife fought with the husband and left for the parental home and after the husband served her a notice, she returned to the rented premises on 22.11.2015. The wife again entered into fights with the husband and his parents and abused them in filthy language, as a result of which a report was lodged by the father of the husband in Police Station Dabki Road. It is pleaded that on 08.01.2016, the wife fought with the husband and threatened to commit suicide. She then left the matrimonial home with all her clothes and ornaments by leaving Swara in the husband''s custody. A report was again lodged by the husband against the wife in view of her threats. It is pleaded that the wife had treated the husband with cruelty and a decree of divorce should be passed in his favour. 4. The wife filed the written statement and denied the case of the husband. Almost every allegation levelled by the husband against the wife was denied by her. In her additional/specific pleadings, the wife pleaded that the husband had always suspected her character while she was residing with him. The wife pleaded that she was harassed by the husband on the ground that her father had not given proper hunda (dowry) to them. It is pleaded in the specific pleadings that the husband was not performing his sexual obligations and was physically and mentally ill treating her. It is pleaded that the husband''s sisters and their husbands always supported the husband and his parents and they used to instigate the husband to behave badly with her. It is pleaded in the specific pleadings that the husband was not performing his sexual obligations and was physically and mentally ill treating her. It is pleaded that the husband''s sisters and their husbands always supported the husband and his parents and they used to instigate the husband to behave badly with her. It is pleaded that when she had conceived, the husband, his sisters and their husbands were forcing her to abort the foetus. It is pleaded that the husband did not come to her parental home to see their daughter Swara when she was born. It is pleaded that after she returned to the matrimonial home with Swara, the sisters of the husband and their husbands used to persistently harass the wife and ill treat her. It is pleaded that the husbands of the sisters of the husband always taunted her and abused her in filthy language. It is pleaded that when she was beaten by the husband she had approached the police station to lodge a report against the husband and his father but the police did not register the same. It is pleaded that the wife has not treated the husband with cruelty. 5. On the basis of the pleadings of the parties, the trial Court framed the issues and on an appreciation of the evidence on record, it dismissed the petition filed by the husband for a decree of divorce on the ground of cruelty. 6. Shri Daga, the learned counsel for the husband, submitted that the Family Court has not appreciated the evidence of the parties in the right perspective while refusing to grant a decree of divorce in favour of the husband. It is submitted that it is clear from the evidence of the witnesses examined on behalf of the husband, viz. the husband and his father and mother that the wife was treating the husband and her in-laws with cruelty. It is submitted that though the father of the husband was nearly 75 years of age and his mother was aged about 70 years, the wife not only asked the husband to reside separately with her but also abused her old in-laws on several occasions. It is submitted that though the father of the husband was nearly 75 years of age and his mother was aged about 70 years, the wife not only asked the husband to reside separately with her but also abused her old in-laws on several occasions. It is submitted that on one occasion, i.e. on 20.03.2014, the wife went to the extent of assaulting and pushing the mother of the husband, as a result of which the mother of the husband would have fallen but for the timely support by the husband for regaining her balance. It is submitted that on 06.05.2014, the wife had again raised her hand to assault her mother-in-law. It is stated that the unchallenged evidence of the husband and his parents in this regard was lightly brushed aside by the Family Court by observing that in the complaint lodged by the husband in the police station at Exhibit 32 A, he had not mentioned about the said happenings. It is submitted that the complaint was only in respect of the threats by the wife and the same is brief and does not refer to the other acts of cruelty that were committed by the wife. 7. Shri Paliwal, the learned counsel for the wife, has supported the judgment of the Family Court. It is submitted that the Family Court has appreciated the evidence of the parties in the right perspective to dismiss the petition filed by the husband for a decree of divorce on the ground of cruelty. It is submitted that the Family Court rightly granted more weight age to the evidence of the wife than the evidence of the husband and his parents. It is submitted by taking this Court through a part of the judgment rendered by the Family Court that though it is pleaded by the husband and also stated in his evidence that the wife had abused the husband and his parents in filthy language and had also pushed the mother of the husband, as a result of which she would have had a great fall, if she had not regained the balance due to the timely help from the husband. The Family Court refused to rely on the same by observing that the said allegations do not find place in the report lodged by the husband in the police station. The Family Court refused to rely on the same by observing that the said allegations do not find place in the report lodged by the husband in the police station. It is submitted that the Family Court has rightly disbelieved the case of the husband that the wife had abused his parents and had even assaulted her mother-in-law. It is submitted that the Family Court has rightly observed that it was necessary for the husband to examine the landlady to prove that the wife had abused the husband as a result of which she was required to intervene. It is submitted that it is clear from the evidence of the wife that the husband had ill treated the wife and he was taking the advantage of his own wrong by seeking a decree of divorce on the ground of cruelty. The learned counsel sought for the dismissal of the family court appeal. 8. On hearing the learned counsel for the parties and on a perusal of the judgment of the Family Court and the evidence on record, it appears that the following points arise for determination in this family court appeal: I) Whether the husband is entitled to a decree of divorce on the ground of cruelty? II) What order? 9. To answer the aforesaid points for determination, it would be necessary to consider the evidence tendered by the parties. The husband has examined himself and has also examined his old father and mother. The wife has examined herself. A couple of first information reports registered on the basis of the complaints lodged by the parties against each other are also placed on record. The husband, his father Pandurang and his mother Nirmalabai had categorically stated in their evidence that the father of the husband is about 76 years of age and the mother of the husband is about 70 years of age. It is stated by these witnesses in the evidence that the wife not only behaved in an abnormal manner at the time of performance of the marriage ceremony but she continued to treat the husband and his family members with cruelty after the solemnization of the marriage. It is stated by these witnesses in the evidence that the wife not only behaved in an abnormal manner at the time of performance of the marriage ceremony but she continued to treat the husband and his family members with cruelty after the solemnization of the marriage. It is submitted that the husband had categorically pleaded and has also stated in his evidence that the wife used to fight with the husband and his parents on trivial matters and on two occasions, i.e. on 28.03.2014 and 06.05.2014, the wife had abused the parents of the husband in filthy language and had also pushed and assaulted his mother. It is pleaded that the wife used to falsely claim that she was not well and used to sleep inside her bedroom when the other members used to perform their daily chores. It is stated by the husband in his evidence that when the wife was asked as to who had called her at 12.00 in the midnight, the wife had refused to answer the query and when the husband had tried to see her mobile phone, the wife had removed the sim card from the phone and destroyed it. It is stated by the husband in his evidence that though the parents of the husband were very old and were unable to perform any work, the wife did not help them and used to fight with them on trivial matters. It is pleaded by the husband and his parent in their evidence that the wife had pushed the mother of the husband on 28.03.2014 as a result of which she was about to fall and that on 06.05.2014 she had raised her hand on the mother of the husband. It is stated by the said witnesses in their evidence that after a child was born from the wedlock, the wife and her parents did not invite the husband or his family members for the naming ceremony of Swara. It is stated by the husband and his witnesses that the wife always desired that the husband should leave his old and ailing parents and live in a separate house with her though he is the only son of his parents and had a duty to look after them. The evidence of the husband and his parents in their examination in chief is not shaken in their cross examination. The evidence of the husband and his parents in their examination in chief is not shaken in their cross examination. We fail to understand why the trial Court has not given due weight age to the evidence of the old aged parents of the husband. The evidence of the old aged parents of the husband is lightly brushed aside by the Family Court. The Family Court has disbelieved the case of the husband in regard to the conduct of the wife of abusing her old in-laws and assaulting her mother-in-law, solely on the ground that in the complaint lodged by the husband with police at Exhibit 38, he has not specifically mentioned that the wife had abused her in-laws and had assaulted and pushed her mother-in-law. We have perused Exhibit 38. The said report appears to have been lodged by the father of the husband, namely Pandurang that the wife had threatened them that she would cause some injury to her life or limb or would falsely implicate the husband and his family members in criminal cases. The first information report at Exhibit 38 is only in respect of the threats given by the wife to her in-laws that she would commit suicide and would involve them in false criminal cases. Nothing is said in the complaint lodged by Pandurang, the father of the husband, against the wife about her acts of cruelty. The report is only lodged with a view to ensure that if the wife really commits an act which would endanger her life or limb, they must not be involved in criminal cases. The observation made by the Family Court that it could be clearly gathered from Exhibit 38 that the wife had not treated the husband and his old aged parents with cruelty and that she had not pushed her mother-in-law or assaulted her is incorrect. We find that not only has the husband proved his case on the basis of the evidence tendered by him and his old parents but the husband has proved that the wife has treated him with cruelty in view of the false and reckless allegations levelled by the wife against the husband and his family members in the written statement. We find that not only has the husband proved his case on the basis of the evidence tendered by him and his old parents but the husband has proved that the wife has treated him with cruelty in view of the false and reckless allegations levelled by the wife against the husband and his family members in the written statement. The wife has pleaded in the specific pleadings in her written statement that the husband and his family members had treated her with cruelty and that they were beating and assaulting her as her father had given less dowry. Though the wife had made serious allegations in regard to the ill treatment meted out to her for giving less dowry in her pleadings, the wife has not uttered a word in this regard in her evidence. It is time and again held by this Court that levelling of wild and reckless allegations in regard to the demand of dowry against the husband and his family members and not proving the same would tantamount to cruelty. The wife has further alleged in her written statement that the husband was always suspecting her character. The wife has, however, not uttered a word in this regard in her evidence. The wife has further stated that the husband used to deprive her of physical relationship. Though there is pleading by the wife in this regard, the wife has not tendered any evidence in respect of this allegation. The wife has further pleaded in her written statement that when she had conceived; the husband, his sisters and the husbands of the sisters always used to pressurize her to abort the foetus. There is however no evidence in regard to this allegation in her written statement against the husband and his family members. The wife has pleaded in her written statement that when the wife started residing in the matrimonial house once again in the end of 2014, the husband and his father had assaulted the wife and had also threatened to kill her. Though such serious allegations are levelled by the wife in her written statement against the husband and his family members, the wife has not bothered to tender any oral evidence in respect of the same. Though such serious allegations are levelled by the wife in her written statement against the husband and his family members, the wife has not bothered to tender any oral evidence in respect of the same. It is time and again held by the Hon''ble Supreme Court and this Court that making of reckless allegations against a spouse in the written statement and failing to prove the same by tendering evidence would amount to cruelty. In the instant case, the wife has not uttered a word about the serious allegations which she had levelled against the husband and his family members in her written statement. It is held by this Court in the judgment reported in 2015 (6) Mh. L.J. 536 (Lilesh Vinod Agrawal v. Vinod Ramrichpal Agrawal) that when serious, wild and reckless allegations levelled by the wife against the husband are not proved, it could be said that the wife has treated the husband with cruelty. In the case cited supra, an allegation was made by the wife against the husband in regard to the illegal demand and the wife had not substantiated the said pleading by tendering evidence. In the circumstances of the case, by relying on the judgment of the Hon''ble Supreme Court reported in AIR 1994 SC 710 (V. Bhagat v. Mrs. D. Bhagat) and AIR 1994 Bombay 246 (Rajan Vasant Revankar v. Shobha Rajan Revankar) , this Court had held that the wife had treated the husband with cruelty. In the instant case, we find that the husband has proved on the basis of the evidence tendered by him and his witnesses that the wife had treated him with cruelty and he has further proved that the wife has treated him with cruelty on the basis of the failure on the part of the wife to substantiate the wild and reckless allegations levelled by her against the husband and his family members. The Family Court has not considered that the wife had made wild and reckless allegations against the husband and his family members and had failed to prove the same. The husband has clearly proved that the wife has treated him with cruelty by pestering him to leave his old and ailing parents and reside in a nuclear family with her, the wife had abused him and his parents and had also assaulted his mother and pushed her. The husband has clearly proved that the wife has treated him with cruelty by pestering him to leave his old and ailing parents and reside in a nuclear family with her, the wife had abused him and his parents and had also assaulted his mother and pushed her. The cumulative effect of the proof of these facts against the wife would result in the finding that the wife had treated the husband with cruelty. The Family Court however did not appreciate the evidence of the parties in the right perspective before dismissing the petition filed by the husband. 10. Hence, for the reasons aforesaid, the family court appeal is allowed. The judgment of the Family Court is hereby quashed and set aside. The marriage solemnized between the appellant-husband and the respondent wife on 23.05.2013 is dissolved by a decree of divorce under Section 13 (1)(ia) of the Hindu Marriage Act, 1955. No costs. A decree be drawn accordingly.