Denial of SeX and False case leads to Divorce

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 153 OF 2013

Neelam Sanjay Chaurasia
Age – 23 Years, Occ – Housewife,
R/at 51/53, 2nd Kumbharwada Dutt Niwas,
1st Floor, Room No. 9, Mumbai – 400 004. Appellant (Org. Respondent)

Versus

Sanjay Hanuman Prasad Chaurasia
Age – 29 Years, Occ – Business of Beetle
Leaves, R/at. 151, Saroj Niwas, 2nd Floor,
Room No. 15, Sant Sena Maharaj Lane,
Girgaon, Mumbai – 400 004. Respondent (Org. Petitioner)

Ms. N.M. Baig for the Appellant
Mr. Osman Chisty a/w Mr. Ashish A. Dubey for the Respondent

CORAM : SMT. V.K. TAHILRAMANI & SHRI. P.N. DESHMUKH, JJ

DATE :JANUARY 16, 2014.

ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :-

1. Heard the learned counsel for the appellant-wife and learned counsel for the respondent-husband.

2. This Family Court Appeal is preferred against the judgment and order dated 07.02.2012 passed by the learned II Family Court at Bandra, Mumbai in Petition No. A-1562 of 2010. The Petition No. A-1562 of 2010 was filed by the respondent-husband for a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act. By the said judgment and order, the petition filed by the respondent was allowed.

3. A few admitted facts are as under:-The marriage between the appellant Neelam and the respondent Sanjay took place on 27.04.2008 as per Hindu Vedic Rites. Since, 21.05.2008, the appellant is residing in her parental home.

4. The case of the respondent was that the marriage took place on 27.04.2008. On the first night, the appellant did not allow him to touch her and refused to consummate the marriage. Thereafter also, the appellant did not allow the respondent to consummate the marriage on one pretext or another. Lastly, their marriage was consummated on 01.05.2008. That was the only time that the respondent had sexual contact with the appellant during her stay in the matrimonial house till 21.05.2008. On 21.05.2008, the appellant went to her parental house to attend pooja and thereafter did not come back to the matrimonial home.

5. Nothing has been elicited in cross-examination of the respondent so as to disbelieve his version that the marriage between them has been consummated only on 01.05.2008 and prior to that date and thereafter, the appellant refused to have sex with the respondent. The evidence of the respondent that the appellant avoided physical relations with him is sufficient to hold that he was subjected to cruelty by the appellant during the course of her stay with him.

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6. Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment. In the case of Shashi Bala Vs. Rajeev Arora 1(1 DMC 721 Delhi High Court) , it is held that, “Sex is the foundation of marriage and marriage without sex is an anathema. Willful denial of sexual intercourse without reasonable cause would amount to cruelty. A person enjoying normal health being deprived of normal cohabitation by spouse and thus undergoing anguish and frustration could be said to have been subjected to mental cruelty. Similar view was taken by this Court in the case of Reshma Rakesh Kadam Vs Rakesh Vijay Kadam 2(2 Family Court Appeal No. 141 of 2012 with Civil Application No. 308 of 2012) decided on 04.12.2013.

7. The case of the appellant is that in fact she was treated with cruelty and soon after the marriage on 21.05.2008, when a pooja was arranged in the house of the parents of the appellant, a demand for dowry of Rs. 1.5 Lacs was made by the respondent. This version of the appellant is not at all believable in view of Exh. 27 which are the minutes of the meeting of Sarvajanik Samajik Panchyat meeting which was held between the appellant, respondent and their family members on 26.06.2008. The said document was proved by the witness of the appellant RW 4 Ram Kishor Gayadin Chourasia who was present in the meeting. The minutes of the meeting clearly show that the appellant, her parents as well as all the persons from the side of the wife i.e the appellant have admitted that no demand for dowry was made by the other side. Accordingly, written document was prepared. Thus, this clearly falsifies the case of the appellant that dowry was demanded by the respondent from her parents and due to this,she was harassed and treated with cruelty.

8. After the meeting held before the Sarvajanik Samajik Panchayat on 26.06.2008, another meeting was called by the Social Service Branch, Crawford Market, Mumbai on 25.08.2008. The appellant and the respondent were present in the meeting. In the said meeting, it was decided that the respondent will acquire separate residential house for him and the appellant to reside and till then, he will pay Rs. 1000/- per month to the respondent but the appellant had refused to accept the amount. Accordingly, the respondent informed the Senior Inspector, Social Service Branch, Mumbai. The respondent then obtained separate residential premises on leave and licence basis at Vitthalwadi, Kalyan as it was decided in the meeting before the Social Service Branch that the appellant and the respondent would reside separately. It was further decided that there would be physical relations between the appellant and the respondent and from 01.11.2008, the respondent would take the appellant to the separate accommodation which he has procured. Till then, the appellant will reside with her parents. However, even before that period was over, on 13.10.2008, the appellant filed an FIR against the respondent and his family members under Section 498-A, 323, 406, 504, 506(2) of IPC. Due to this FIR, the respondent and his family members were arrested and were in police custody till 16.10.2008. Thereafter, they were released on bail. In the said FIR, the appellant alleged that the respondent and his family members demanded dowry and as the demand was not met, she was physically and mentally harassed and treated with cruelty. From the document Exh. 27, it is clear that no demand for dowry was made by the respondent or his family members. This shows that the respondent and his parents were arrested and kept in police custody on the false complaint filed by the appellant. In such case, the learned Judge of the Family Court has rightly held that it has caused cruelty to the respondent and his parents.

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9. The specific plea of the respondent is that the appellant subjected him to cruelty by filing a false case against him and his parents due to which they had to remain in police custody for number of days. In the case of Meena Rani Vs Madan Lal 3 (3 1995(2)H.L.R. 97), it is observed that the wife alleging maltreatment with her for want of dowry and the allegations levelled by the wife appearing to be palpably false. Therefore, the allegations of the wife caused cruelty to the husband and the husband is entitled to get divorce on that ground. In the present case, the allegation of the wife about demand of dowry is not trustworthy and believable. However, on the basis of her complaint, the respondent and his parents were kept in police custody. Therefore, the above authority is useful to support the respondent’s contention that the appellant caused cruelty to the respondent. The evidence of the respondent that the fact that he and his parents were kept in police custody due to the false complaint by the appellant caused cruelty to him and his parents is trustworthy and reliable.

10. The case of the appellant is that on 21.05.2008, she was forced to leave her matrimonial house on account of demand of Rs. 1.5 Lacs, however, the evidence of the appellant’s witness i.e her mother RW 2 Pushpa Vinod Chaurasia and RW 4 Ram Kishor Gayadin Chaurasia shows that she went to her parents house on 21.05.2008 to attend pooja ceremony which was arranged by her parents and since then, she is residing at her parent’s home. We have already observed earlier that the story of the appellant that there was demand of dowry is found to be false. This shows that the appellant went to her parent’s home on 21.05.2008 to attend pooja ceremony and she was not compelled to leave her matrimonial house either by the respondent or his parents and since then, she is living in her parent’s home. It was decided in the meeting of Social Service Branch that the appellant would go and reside with the respondent on 01.11.2008 after the respondent obtained separate accommodation. The respondent did obtain the separate accommodation on leave and licence basis, however, prior to 01.11.2008, the appellant filed a false FIR against the respondent and his family members. Thus, the evidence of the respondent Sanjay shows that he tried to obey the decision taken in the meeting which was held by the Social Service Branch, Crawford Market, Mumbai as well as in the meeting held by Samaj Sudharak Panchayat. The evidence on record shows that the respondent made attempts to co-habit with the appellant but the appellant has refused and neglected to cohabit with him.

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11. Learned Judge of the Family Court has considered all the aspects and has rightly come to the conclusion that the appellant Neelam caused cruelty to the respondent Sanjay and has thus granted decree of divorce on the ground of cruelty. No interference is called for. Appeal is dismissed. No order as to costs.

[SHRI. P.N. DESHMUKH, J ] [SMT. V.K. TAHILRAMANI, J ]

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