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Bombay HC: Wife often going to parents’s home without any reason is cruelty.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.

FAMILY COURT APPEAL NO. 142 OF 2014

APPELLANT (Ori.Peti):­
Ulhas Prabhakar Chinchanikar, aged 51 years, r/o Nagoba Galli No.1, Chitar Oli, Nagpur 440002.

…VERSUS…

RESPONDENT :­
Mrs.Radhika w/o Ulhas Chinchanikar, aged (Ori.Resp.) 48 years, occupation service, Bhartiya Aadim Jati Seva Sangh, Khamla, Nagpur.
C/o Manasi Girls Hostel, Plot No.10, Tilak Nagar, Behind Nagpur Amravati Road, Nagpur­10. ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

Mr. A.V.Khare, counsel for the appellant.
None for the respondent. ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

CORAM : SMT. VASANTI A NAIK & V.M.DESHPANDE, JJ.

DATED : 05.01.2017 O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)

1. By this family court appeal, the appellant challenges the judgment of the Family Court, Nagpur dated 31/08/2010 dismissing the petition filed by the appellant for a decree of divorce on the ground of cruelty. 2. The facts giving rise to the family court appeal are stated thus :­

2. The appellant-­husband (hereinafter referred to as the ‘husband’ for the sake of convenience) and the respondent­wife (hereinafter referred to as the ‘wife’) were married according to the Hindu rites and customs at Bhopal on 07/03/1994. The husband and the wife started residing in the matrimonial home at Chitar Oli, Nagpur after the solemnization of the marriage. It is the case of the husband that the parties resided together happily for a few years, but later on the wife started treating the husband with cruelty. In the Hindu marriage petition filed by the husband for a decree of divorce on the ground of cruelty it is pleaded by the husband that the wife was very short tempered, aggressive, cynical and pervert. According to the husband, the wife used to become furious at the husband without any reason and used to ill­treat her mother­in­law. It is pleaded that despite the fact that the husband opposed the idea of the wife of starting a beauty and massage parlour, the wife started the same by securing loan from the State Bank of India, selling gold ornaments including her mangalsutra and also by stealing money from the almirah of her mother­in­law. It is pleaded that on 14/06/2005, the wife disappeared from the house of the husband without intimation. It is pleaded that the wife was in the habit of leaving the matrimonial house without intimating the husband for days together and the husband was required to lodge reports with the police, in this regard. It is pleaded that when the mother of the husband expired, the wife tried to re­enter into the matrimonial home which she had left a year earlier. It is pleaded that the husband did not permit the wife to enter into the matrimonial home and lodged the report with the police station in regard to her wrongful entry into the matrimonial home with a view to create a scene in the house. It is pleaded that the wife was in the company of a womaniser and the husband had seen the wife in the company of one Mr.Mishra, who was not a good person. It is pleaded that the police also did not take any action against the wife on the ground that it was a matrimonial dispute. It is pleaded that the children that were born to the parties from the wedlock i.e. the daughter and the son, were residing with the husband. The husband sought for a decree of divorce on the ground of cruelty.

3. The wife denied the claim of the husband and also denied that she treated the husband with cruelty. The wife admitted that she had secured a loan from the bank to start ‘Slim Point Centre’. According to the wife, the husband had a suspicious nature and he used to torture her. It is pleaded that when the mother­in­law of the wife had fractured her leg the wife closed down the Slim Point Centre and stayed in the matrimonial house. It is pleaded that the wife tried to leave the matrimonial house along with her children, as she was disturbed by the ill­treatment meted out by the husband to her, but when she went to the railway station, the husband forcibly snatched the children from her and she alone went to the house of her sister Renu. It is pleaded that the husband did not permit her to speak with the children. It is pleaded that after the death of her mother­in­law, there was no female member in the family and, therefore, she was desirous of returning to the matrimonial home to take care of her father­in­law and her children. The wife sought for the dismissal of the petition

4. With the aforesaid pleadings of the parties, the Family Court framed the issues. The husband and the wife tendered oral evidence and closed the evidence on their side. The husband and the wife did not examine any other witnesses in support of their respective cases. The husband filed certain documents on record, including the police reports to substantiate his case that the wife was in the habit of leaving the matrimonial house time and again for days together. The wife also filed certain documents to point out that she was suffering from minor ailments and at the relevant time, in the year 2006, she was not mentally stable. On an appreciation of the evidence in the present case as well as the case filed by the wife for grant of maintenance, the Family Court by the common judgment dated 31/08/2010, dismissed the petition filed by the husband and directed the husband to pay monthly maintenance to the wife. The husband has filed the present family court appeal against the part of the judgment, by which the petition filed by him for a decree of divorce is dismissed 5. Shri Khare, the learned counsel for the husband, submitted that the Family Court was not justified in dismissing the petition filed by the husband for a decree of divorce. It is stated that the evidence of the husband that the wife was leaving the matrimonial house without informing the husband is substantiated by the police reports that are filed on record. It is submitted that the very fact that both the children are residing with the husband and the wife has not made any attempts to secure the custody of the children or to seek access to them shows that the wife could have left the matrimonial home without informing the husband. It is stated that as the Family Court had held that the wife may have left the matrimonial home on at least three occasions without informing the husband, the Family Court ought to have allowed the petition filed by the husband for a decree of divorce. It is stated that it is not proved by the wife by cogent evidence that she was compelled by the husband to leave the matrimonial house. It is stated that the report filed by the wife making allegations against the husband for an offence punishable under section 498­A read with

5. Shri Khare, the learned counsel for the husband, submitted that the Family Court was not justified in dismissing the petition filed by the husband for a decree of divorce. It is stated that the evidence of the husband that the wife was leaving the matrimonial house without informing the husband is substantiated by the police reports that are filed on record. It is submitted that the very fact that both the children are residing with the husband and the wife has not made any attempts to secure the custody of the children or to seek access to them shows that the wife could have left the matrimonial home without informing the husband. It is stated that as the Family Court had held that the wife may have left the matrimonial home on at least three occasions without informing the husband, the Family Court ought to have allowed the petition filed by the husband for a decree of divorce. It is stated that it is not proved by the wife by cogent evidence that she was compelled by the husband to leave the matrimonial house. It is stated that the report filed by the wife making allegations against the husband for an offence punishable under section 498­A read with

6. Despite the service of the notice on the wife, there is no appearance on behalf of the wife after service. We have heard the learned counsel for the husband and have also perused the record and proceedings. It appears that the following points arise for determination in the family court appeal.

(I) Whether the husband is successful in proving that the wife has treated him with cruelty?

(II) Whether the husband is entitled to a decree of divorce on the ground of cruelty?

(III) What order?

7. From the evidence on record, it is apparent that the husband had filed at least three reports in the police station that the wife had left the matrimonial home without informing anybody and was not to be found. It is the case of the husband that after few years of the marriage, the wife started behaving badly with the husband and also desired to start a beauty and massage parlour. According to the husband, though he objected to the idea of the wife starting a beauty and massage parlour, the wife secured loan from the bank, sold the gold ornaments and even stole the money from her mother­in­law’s almirah to start the parlour, against his wishes. We do not find any cogent evidence on record to show that the wife had stolen the money belonging to her mother­in­law from her mother­in­law’s almirah, however, there is an admission of the wife that she had started the beauty and massage parlour against the wishes of the husband. It is the case of the wife that she had started the parlour with a view to earn some money for her family. However, the fact remains that the case of the husband that he did not desire that his wife should start a massage and beauty parlour and the wife started the same is substantiated. It appears from the evidence that there were constant fights between the husband and the wife after the wife started the parlour and started staying away from the house. Except for the bare denial, there is nothing to falsify the case of the husband that the wife used to leave the house and that reports were lodged by the husband that the wife had left the matrimonial house without informing the husband, on several occasions. If a wife is in the habit of leaving the matrimonial home without informing the husband and if she fails to return to the matrimonial home for days together and the husband is not aware about the whereabouts, it is possible to believe that the husband would suffer great agony and would not like to be in the company of such a wife. There is material on record to show that the husband had taken prompt action for searching the wife, who had left the matrimonial home on more than a couple of occasions without informing the husband. If the wife had not left the matrimonial home without informing the husband and if the reports were untrue, the wife should have taken some steps against the husband in respect of the filing of false reports against her. However, there is nothing on record to show that the wife ever took any action against the filing of the reports by the husband about her leaving the matrimonial house without informing the husband. We further find that though the brother and sister­in­law of the husband were residing at village Amba in district Jalna at the relevant time, the wife filed the complaint in respect of an offence punishable under section 498­A of the Penal Code, not only against the husband, but also his brother, who was residing in district Jalna. The husband had tendered specific evidence in this regard, but there is no cross­-examination of the husband on this aspect, on behalf of the wife. We find that not only were the husband and his brother prosecuted for an offence punishable under section 498­A of the Penal Code, but it is the case of the husband in his evidence that certain news­ item pertaining to the strained matrimonial relationship between the husband and the wife was also published in the newspaper. In the circumstances of the case, the Family Court ought to have allowed the petition filed by the husband for a decree of divorce more so, when the Family Court has not recorded a finding that the wife had proved that she was physically abused by the husband. The Family Court ought to have granted a decree of divorce in favour of the husband, when the Family Court had disbelieved the case of the wife that she may have left the matrimonial home without informing the husband in the year 2005­ 06, as she was mentally unstable, at the relevant time. Even if we assume that the wife was mentally unstable and hence she was leaving the matrimonial home, then also it would be difficult for the husband to live in the company of the wife. If the wife time and again leaves the matrimonial home without informing the husband and returns after a few days or months, the husband would be certainly embarrassed. Though we are of the view that the husband is not successful in proving that the wife was, at the relevant time moving around with Mr.Mishra, of which an allegation is made by the husband, we find that the husband is successful in proving that the wife was not doing the household work, had behaved badly with the husband and with her mother­in­law, had started the massage and beauty parlour despite the stiff opposition of the husband and was leaving the matrimonial house time and again without informing the husband, and staying away for days together. In the circumstances of the case, the Family Court ought to have held that the wife had treated the husband with cruelty and that he was entitled to a decree of divorce. As rightly submitted on behalf of the husband, we are all the more inclined to hold so, as both the children are residing with the husband and the wife had not filed any proceedings for the custody of her children.

8. Hence, for the reasons aforesaid, the family court appeal is allowed. The judgment dated 31/08/2010, as far as it dismisses the petition filed by the husband for a decree of divorce is set aside. The Hindu marriage petition filed by the husband is allowed. The marriage solemnized between the parties on 07/03/1994 stands dissolved by a decree of divorce under Section 13(1)(i­a) of the Hindu Marriage Act. No order as to costs

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