Research › Search › Judgment

Bombay High Court · body

2021 DIGILAW 402 (BOM)

Vandana Rajesh Mate v. Shri. Rajesh

2021-02-18

A.S.CHANDURKAR, N.B.SURYAWANSHI

body2021
JUDGMENT N. B. Suryawanshi, J. - The present appeals filed by the appellant wife under Section 19 of the Family Courts Act, 1984 challenge the common judgment passed by the Family Court, Nagpur in Petition No.A-365 of 2012 filed by the respondent husband for divorce. The appellant wife assailing the decision of the Family Court in Petition No.A-111 of 2013, thereby refusing her petition for restitution of conjugal rights and by filing Criminal Revision Application challenge the quantum of maintenance awarded by the Family Court in Petition No.E-382 of 2012. Since all these three decisions are given in a matrimonial dispute between the appellant and the respondent, they are being decided by this common judgment. Petition No.A-365 of 2012. 2. The respondent filed this Petition under Section 13(1) (i-a) (i-b) of the Hindu Marriage Act, 1955 (for short, "the said Act") seeking divorce on the ground of cruelty and desertion in short contending that, the marriage between the parties was solemnized on 19.12.2010 as per Buddhist Rites at Nagpur. On the day of marriage with the wife, husband was having two daughters namely Susmita and Ishita aged about ten years and five years and an ailing 80 year old Mother. The husband was a Corporator of Nagpur Municipal Corporation at the time of marriage. The wife was aware about these facts prior to the marriage. After marriage, the wife started residing with the husband at his house near Mangalwari Garaden at Nagpur. Parents of the wife used to reside at Indora area at Nagpur. While getting married, the husband was under impression that the wife would take care of his daughters and ailing mother, but the wife neglected and refused to do any household duties towards them. She was in the habit of frequently visiting her parent's house. Every day, she was taunting the husband in filthy language. She was beating the daughters without just and sufficient cause. She did not provide meals to his daughters and ailing mother. In spite of understanding given to her by the husband and the elders of both the families at several times, the behavior of the wife did not change, she used to threaten him that she will commit suicide and put him behind the bars. She was having more affection towards her parents. He was frustrated with the behavior of the wife. She was having more affection towards her parents. He was frustrated with the behavior of the wife. The wife left matrimonial home on 01.09.2011 by giving threats to commit suicide and putting him behind the bars. 3. The wife denied all the allegations by filing a written statement. She averred that she cohabited with the husband till 14.04.2012. Due to his adamant behavior, the husband created an unhealthy atmosphere. He was treating her just as a maid servant, although she was discharging her household duties. Because of this abnormal behavior, it became unsafe for her to live with him. Her health deteriorated due to the continuous ill treatment given to her by the husband and it gave her mental stress. She was never taken to the Doctor. The husband neglected her. The husband and his mother quarreled with the wife and threatened her with life and limb. Apprehending danger to her life, she had to leave the matrimonial home on 01.09.2011 and since then, she was living at the mercy of her parents. She claimed that she was ready to cohabit with the husband and his divorce petition be dismissed. Petition No.A-111 of 2013 The wife reiterated the above contentions in Petition No.A-111 of 2013 filed for restitution of conjugal rights and in Petition No.E-382 of 2012 filed for maintenance under Section 125 Code of Criminal Procedure, 1973. She further admitted in the maintenance petition that the husband used to beat her mercilessly. Whenever he used to go on tour for his business, he used to drop her at her parent's house. Due to threats of life, the wife apprehending danger to her life, was required to leave the matrimonial home. Since 14.04.2012, she was living with her parents. She further averred that the husband was two times Corporator of Nagpur Municipal Corporation and was having a Kerosene dealership and he also worked as a Contractor and earns Rs.75,000/- per month. She claimed that she was unable to earn and it was the husband's responsibility to maintain her. Hence, she demanded maintenance @ Rs.30,000/- per month. The husband has reiterated his pleadings in the written statement filed in the maintenance Petition No.A-365 of 2012. 4. She claimed that she was unable to earn and it was the husband's responsibility to maintain her. Hence, she demanded maintenance @ Rs.30,000/- per month. The husband has reiterated his pleadings in the written statement filed in the maintenance Petition No.A-365 of 2012. 4. The learned Family Court after recording the evidence, decreed the divorce petition filed by the husband by dissolving the marriage between the husband and wife, dismissed the petition for restitution of conjugal rights filed by the wife. The interim order passed in the maintenance proceedings, thereby granting maintenance @ Rs.1500/- per month was confirmed w.e.f. the date of the decision. Being aggrieved, the appellant wife has filed the present appeals and criminal revision application. 5. Heard the learned advocate for the appellant and the respondent. 6. The learned advocate for the appellant submitted that there is no evidence on record to prove cruelty and that the Family Court has erred in granting decree of dissolution of marriage on the ground of cruelty. The allegations of the respondent that the appellant used to go her maternal home frequently and she refused to provide food to her mother-in-law, etc. are vague and of a general nature. There is no proof of cruelty. There is no material to justify the grant of decree of divorce in favour of the respondent and for rejecting the prayer of the appellant for restitution of conjugal rights. He further submitted that the meager amount of Rs.1500/- per month was awarded by the Family Court towards maintenance without considering the price index prevailing at that time. He therefore urged that the appeals and revision deserve to beallowed and the decree of divorce be set aside, the restitution of conjugal rights may be allowed in favour of the appellant and maintenance @ Rs.30,000/- per month be granted to the appellant. 7. In support of his submissions, the learned advocate for the appellant placed reliance on the ratio in : a) Kishor s/o. Shamrao Dongre ..Vrs.. Smt. Rohini W/o. Kishor Dongre, 2018(4) ALL MR 667 b) Vishnu S/o. Babanrao Yadav ..Vrs.. Nalini W/o. Vishnu Yadav, 2018(6) ALL MR 629 8. Per contra, the learned advocate for the respondent strenuously supported the judgment of the Family Court by contending that the behavior of the appellant spells out cruelty and the learned Family Court was justified in granting the decree in favour of the respondent. Nalini W/o. Vishnu Yadav, 2018(6) ALL MR 629 8. Per contra, the learned advocate for the respondent strenuously supported the judgment of the Family Court by contending that the behavior of the appellant spells out cruelty and the learned Family Court was justified in granting the decree in favour of the respondent. Resultantly, the petition for restitution of conjugal rights was required to be dismissed. He further submitted that no evidence is brought on record by the appellant to prove the income of the respondent. In view of that matter, the Family Court was justified in awarding maintenance @ Rs.1500/- per month to the appellant, which was reasonable. 9. Heard learned advocate for the parties at length. We have gone through the record. After hearing the rival submissions, following points arise for determination : i) Whether the order of the Family Court granting divorce in favour of the respondent is legally correct ? ii) Whether the appellant is entitled for the decree of restitution of conjugal rights ? iii) Whether the quantum of maintenance awarded by the Family Court to the appellant requires interference ? iv) What order ? 10. To decide the controversy, it is necessary to consider the evidence on record. 11. The wife filed her affidavit in lieu of evidence at Exh-13 in maintenance petition and at Exh-17 petition for restitution of conjugal rights. The wife did not lead separate evidence in divorce petition and the husband did not lead separate evidence in maintenance proceedings and in restitution of conjugal rights petition. The learned Family Court, therefore, passed an order to read the evidence adduced by both the parties in all these three petitions. 12. The wife in her evidence deposed in terms of the pleadings in restitution and maintenance proceedings. In cross-examination except giving suggestions which she has denied nothing damaging the case of the wife could be brought on record by the husband. She denied that she was frequently visiting her parent's house. She further admitted that once when she was going to the parent's house by Auto, her golden chain went missing. She did not lodge any complaint regarding it as the husband did not allow her to lodge the complaint. She admitted that, her old mother-in-law was always sick and required medical expenses. Except this, there is nothing in cross-examination of the wife, which would help the case of the husband. 13. She did not lodge any complaint regarding it as the husband did not allow her to lodge the complaint. She admitted that, her old mother-in-law was always sick and required medical expenses. Except this, there is nothing in cross-examination of the wife, which would help the case of the husband. 13. In the maintenance proceedings, the wife filed affidavit in lieu of evidence in terms of the contentions raised in the maintenance petition. She was already cross-examined in the restitution petition and also in respect of maintenance proceedings. 14. The husband filed an affidavit of evidence at Exh-17 in terms of the pleadings in his divorce petition. In cross-examination the husband admitted that, he did not send any notice to the wife before filing the divorce petition. He did not attempt to fetch his wife through any other institution. He claimed that he was working with the building material supplier Mr. Dhananjay Thakre as a supervisor and that he was in a position to produce the document to that effect. He was called upon to produce the document of his employment. According to him, he was not required to go out of Nagpur when he was a Corporator, but at the time of deposition, he used to go out of Nagpur if there was some work. He further admitted that he never reported the wife's cruelty towards him to the Police. He also did not complain about the wife's behavior of not giving medicine and food to his mother. He denied that he used to harass the wife and he drove her out of the matrimonial home. He deposed that even if the wife was ready to cohabit with him, he was not ready to take her along. He denied the rest of the suggestions with respect to his income and about the property held by him through benami transactions. 15. On careful scrutiny of the evidence brought on record by the parties, it is clear that there is no evidence presented by the respondent to prove the cruelty of the appellant. The allegations of the respondent about the behavior of the appellant are of general nature and vague. The allegations that the appellant was in the habit of frequently visiting her parent's house and that she was neglecting the respondent's mother and daughters are not proved by the respondent. The allegations of the respondent about the behavior of the appellant are of general nature and vague. The allegations that the appellant was in the habit of frequently visiting her parent's house and that she was neglecting the respondent's mother and daughters are not proved by the respondent. The respondent has admitted that he did not issue any notice to the appellant. He also did not attempt to fetch her through any other institution, before filing of petition. He admitted that he did not complain to anybody about the behavior of the appellant of not giving food and medicine to his ailing mother. His further admission that even if the appellant is ready to cohabit with him, he was not willing to take her along, shows his adamant and unreasonable approach. These allegations apart from the fact that they are of general nature, they can be said to be outcome of normal wear and tear of the married life, but they definitely fall short of proving any cruelty on the part of the appellant. 16. In Savitri Pandey ...Vrs... Prem Chandra Pandey. AIR 2002 SC 591 , the Hon'ble Supreme Court held : "Mental cruelty is the conduct of the other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates of a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other". If we apply this ratio to the facts of the present case, it is clear that there is no iota of evidence brought on record by the respondent to prove cruelty as contemplated under Section 13(1) (i-a) of the said Act. There is no material on record which spells out the cruelty on the part of the appellant. If we apply this ratio to the facts of the present case, it is clear that there is no iota of evidence brought on record by the respondent to prove cruelty as contemplated under Section 13(1) (i-a) of the said Act. There is no material on record which spells out the cruelty on the part of the appellant. The respondent failed to prove that the conduct of the appellant for a long time caused feelings of deep anguish, disappointment and frustration in the respondent and her such conduct actually affected the physical and mental health of the respondent. No evidence was led by the respondent for proving these aspects showing cruelty in the conduct of the appellant. 17. In Samar Ghosh ..Vrs.Jaya Ghosh, (2007) SCC 511, the Hon'ble Supreme Court explained the nature and scope of mental cruelty as the ground for divorce by holding that : "101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of "mental cruelty". The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive : iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a longtime may lead to mental cruelty. vi) Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty." Applying this ratio to the facts of the present case, it is explicitly clear that the respondent has failed to make out a specific case that any particular conduct of the appellant amounted to cruelty. No evidence was brought on record by the respondent to show that the conduct of the appellant falls within the instances enumerated in this decision. 18. The learned advocate for the appellant was justified in relying upon the ratio in Vishnu Babanrao Yadav (supra,) wherein it is held : "18. From the perusal of entire evidence placed on record, we are of the considered view that the allegations made by the Appellant against Respondent regarding cruelty are too vague and general. 18. The learned advocate for the appellant was justified in relying upon the ratio in Vishnu Babanrao Yadav (supra,) wherein it is held : "18. From the perusal of entire evidence placed on record, we are of the considered view that the allegations made by the Appellant against Respondent regarding cruelty are too vague and general. A decree of divorce on the ground of cruelty cannot be granted on the basis of general allegations levelled by the husband against the wife, without clearly mentioning the manner in which the wife has ill-treated the husband. General allegations that the wife used to avoid the husband and his family members and that she used to often visit her parental house and was not preparing food for the husband, was not opening the door of the house after his return to home, cannot constitute cruelty." The above ratio is laid down in somewhat similar facts and the same is squarely applicable to the facts of the present case. The ratio in Kishor Shamrao Dongre (supra) also supports the case of the appellant. In the light of the observations of the Hon'ble Supreme Court and this Court quoted herein above, in our considered view, the respondent had failed to make out any case for grant of decree of divorce in his favour on the ground of cruelty. The allegations of the respondent about the conduct of the appellant are of general nature and they at the most can be termed as normal wear and tear of married life. 19. The allegations of the respondent about the conduct of the appellant are of general nature and they at the most can be termed as normal wear and tear of married life. 19. The learned Family Court has recorded the following findings : That, the appellant got fed up of maintaining the husband, his ailing old mother and both the children and therefore, she left the matrimonial home, that there does not appear any cruelty on the husband's part towards the wife due to which she was constrained to leave him, that the appellant has not adduced evidence any to show that the respondent was not allowing her to talk with the neighbor, that the appellant has failed to bring on record any such business of the respondent for which he used to go on business tours, that the possibility cannot be ruled out that because of such lazy behavior of the appellant, the respondent must have asked her for the reasons (of losing chain) and then to avoid it, she left her matrimonial home on 01.09.2011 and that the appellant failed to discharge her duty towards the Family and hence, such deficiency can certainly entail sort cruelty to husband. 20. According to us, these findings are contrary to the evidence on record and based on surmises and conjectures. Unwarranted inferences are drawn by the learned Family Court while recording the above findings. These findings are not supported by proper reasons. 21. In absence of any evidence on record to prove the cruelty of such a degree as contemplated by catena of the decisions of this Court as well as of the Hon'ble Supreme Court, the learned Family Court was not justified in ignoring the said law and the meaning of cruelty explained in them. Since the findings of the learned Family Court are contrary to the evidence on record, they are unsustainable. In our considered view, the learned Family Court has recorded perverse findings and the common impugned judgment of the learned Family Court in Petition Nos.A-365/2012, E-382/2012 and A-lll/2013 is unsustainable and the same is liable to be set aside. The point no. i, is answered accordingly. 22. In our considered view, the learned Family Court has recorded perverse findings and the common impugned judgment of the learned Family Court in Petition Nos.A-365/2012, E-382/2012 and A-lll/2013 is unsustainable and the same is liable to be set aside. The point no. i, is answered accordingly. 22. For the aforestated reasons, since we have come to the conclusion that the decree of divorce granted in favour of the respondent is unsustainable, for the same reasons and taking into consideration the fact that the appellant has shown her willingness to go for cohabitation with the respondent, the fact that before filing petition for divorce, the respondent did not make any attempts to fetch the appellant back, his categorical admission that even if the appellant is ready to cohabit with him, he is not ready to do so, he did not issue any notice to her, the wife is entitled for relief. We are of the considered view that the appellant has made out a case for grant of decree for restitution of conjugal rights in her favour. We answer the point no. ii accordingly. 23. So far as the maintenance proceedings is concerned, the neglect and refusal on the part of the respondent is proved by the appellant. The respondent has admitted in his evidence that he was Corporator of Nagpur Municipal Corporation for two terms. He claimed that he was working as a supervisor with the building material supplier Mr. Dhananjay Thakre. Though he was called upon to produce document in respect of his employment, he has not filed the same, therefore, adverse interference needs to be drawn against him. Since the said fact was within special knowledge of the respondent, he was expected to bring evidence on record about his income. Though the appellant has claimed that the respondent is doing a kerosene business, she could not bring any evidence on record to prove the same. The learned Family Court has awarded maintenance @ Rs.1500/- per month from the date of order. The interim maintenance at that rate was granted to the appellant, according to us, the said amount is grossly inadequate to maintain a lady. Taking into consideration the rising price index, the status of the parties, we are of the opinion that the appellant is entitled for maintenance @ Rs.5,000/- per month from the date of her maintenance application i.e. from 18.09.2012. Taking into consideration the rising price index, the status of the parties, we are of the opinion that the appellant is entitled for maintenance @ Rs.5,000/- per month from the date of her maintenance application i.e. from 18.09.2012. The learned Family Court without assigning any reason has erroneously proceeded to award maintenance to the appellant from the date of order. There is nothing on record to show that the proceedings were prolonged at the behest of the appellant. In that view the Family Court ought to have allowed the maintenance to the appellant from the date of application. We find that the said decision is also contrary to the ratio of latest decision of the Hon'ble Supreme Court in Rajnesh ..Vrs.. Neha and others, 2020(13) SCALE 29 , wherein it has laid down the guidelines to be followed in the matter of the maintenance and has mandated that the maintenance should be awarded from the date of filing of the application.24. For the aforestated reasons, we pass the following ORDER: 1) The Family Court Appeal No.80 of 2015 and Family Court Appeal No.81 of 2015 are allowed. 2) The judgment and decree passed by the Family Court in Petition No. A-111 of 2013 is set aside and the petition filed by the wife seeking a decree of restitution of conjugal rights is allowed and a decree of restitution of conjugal rights is issued in her favour. 3) The judgment and decree passed by the Family Court in Petition No.A-365 of 2012 is set aside and the petition filed by the respondent is dismissed. 4) The Criminal Revision Application No.120 of 2015 is allowed by modifying the judgment of the Family Court in Petition No.E-382 of 2012 to the effect that the revision petitioner wife is held entitled for maintenance @ Rs.5,000/-per month which shall be paid to her from the date of filing of maintenance petition i.e. from 13.04.2012. 5) The arrears of maintenance shall be deposited by the respondent within a period of eight weeks from today.