Wife guilty of desertion & cruelty

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 148 OF 2004
WITH
FAMILY COURT APPEAL NO. 98 OF 2006.
WITH
CIVIL APPLICATION NO. 291 OF 2007.

Smt.Kalpana Bharat Ruparel ….. ….. … Appellant.
V/s
Bharat Ratanshi Ruparel ….. …… … … Respondent.
Mr.K.M.Savla i/by Mr.Manish P. Jogani, Adv. for the appellant.
Smt.B.P.Jakhadi, Adv. for the respondent.

CORAM: A.P.DESHPANDE AND SMT.R.P. SONDURBALDOTA, JJ.

26th April, 2010.

ORAL JUDGMENT: (Per Deshpande, J.)

As common questions of fact and law arise in both these appeals the appeals are heard together and are being disposed of 4by this common judgment. Family court appeal No.148/04 questions the legality and validity of the judgment rendered by the family court dissolving the marriage of the appellant and the respondent by decree of divorce on the ground of cruelty and desertion under section 13(1)(ia)(ib) of the Hindu Marriage Act.
Whereas Family Court appeal No.98/06 is directed against the fixation of quantum of maintenance. The dispute in these appeals arises in the following factual matrix: The appellant and the respondent’s marriage was performed on 1.2.89 according to Hindu Rites and Customs. The marriage was arranged marriage. At the time of marriage the respondenthusband by name Bharat was staying along with his brother Arvindbhai, his wife and three children in a small flat comprising of one room kitchen. The room had a loft/mezzanine floor. The said loft was used by the parties to these appeals for privacy. It is the case of the respondent that the present appellant and her family members were informed prior to the marriage that the respondent was sharing a small flat along with family of his brother and the appellant would be required to adjust herself. At the time of marriage the respondent was working as diamond cutter and used to earn salary of RS.1400/per month. Prior to the marriage the mother, brother and appellant’s sister had visited the husband’s house and thereafter the proposal was approved. According to the respondenthusband the appellant right since beginning was insisting that the respondent should make separate arrangement and that she was not interested in staying with joint family. The respondent informed the appellant that it is beyond his financial capacity to think of a separate accommodation and that it is not feasible. The couple left for honeymoon on 4.2.89 and it was during that trip that the appellant broke the subject of separation and her insistence to move out of the joint family. Despite categoric refusal by the respondent to stay separately the appellant insisted upon the same which gave rise to frequent quarrels on trivial issues and according to the respondenthusband matrimonial discord grew soon. The appellant used to abuse and insult husband’s brother and his wife. The respondent also contended that the appellant has treated the respondent with utmost contempt and humiliated him on account of his weak financial position. The appellant forced the respondent to leave her at her parents house on 7.6.89 and since then the appellant has stayed along with her mother and did not return to cohabit with the respondent. Thusthe ground of dessert ion was also pressed in service for claiming divorce. 2. Per contra, it is the case of the appellant that on the very next day of the marriage i.e. on 2.2.89 when the family members of the respondent and appellant visited Mahalaxmi temple the brother of the respondent demanded a sum of Rs.7 lacs for purchasing a flat.

According to the appellant as the demand of RS.7 lacs was not met the brother of the respondent and his wife started treating the appellant cruelly. It is also urged that when the appellant was reached at her mother’s house on 7.6.89 by the respondent and
Surekha (wife of the respondent’s brother) they had conspired to push the appellant out of running train and she over heard the conversation and hence had informed the parents before hand. The last incidence of cruelty attributed by the appellant against the respondent by family members is that on 7.6.89 viz. the day on which the appellant was reached to her mother’s place she was assaulted by the respondent. 3. It is an admitted position that the appellant was reached to her mother’s place on 7.6.89 by the respondent and Surekha.

When they reached the place of residence of the mother of appellant police were already present there and they took the respondent and his sister in law Surekha to police station and were made to wait in the police station till next day morning. Thus the above referred circumstances were put forth by the appellant to justify her residing separately from 7.6.89 and thereby opposed the 3 claim for divorce on the ground of desertion contending that her separate stay was justified on account of cruel treatment meted out to her by the respondent and his family members. The court below on appreciation of evidence found the evidence led by the wife to be wholly improbable and as the family court was of the considered view that the respondent husband has made out a case for grant of divorce, decreed the petition. The appellant’s petition for maintenance bearing No.37/96 was partly decreed and the respondent was directed to pay maintenance of RS.1800/per month to the appellant and Rs.2000/to the then minor daughter Rinku aggregating Rs.3800/per month from the date of the order. During pendency of these appeals on an application moved by the appellant this Court by an interim order enhanced the amount of maintenance to Rs.25,000/p.m. It will not be out of place to mention at this juncture that for non payment of the amount of maintenance in successive RD proceedings the respondent was sent to Jail on six occasions, each time for at least a month. According to the learned counsel for the respondent it was wholly beyond the capacity of the respondent to pay huge amount of maintenance of Rs.25,000/,hence had to suffer imprisonment for more than six months.

4. It is apparent from the record that the appellant and the respondent cohabited together as husband and wife hardly for a period of five months after their marriage. The marriage was solemnized on 1.2.89 and its undisputed that the appellant is not cohabiting with the respondent and lives separately at her mother’s residence from 7.6.89. It can thus be seen that the parties are staying separately since last 20 years. In that view of the matter we
propose to first take up issue of desertion which has been answered in favour of the respondent husband by the trial Court for granting decree of divorce. According to the appellant there are three reasons and/or circumstances which justify her separate residence.

The first reason is that immediately on the second day of marriage when the appellant and respondent had been to Mahalaxmi temple in the company of brother of the respondent and his wife, the respondent’s brother demanded a sum of Rs.7 lacs and as the appellant could not meet the said demand which was allegedly for purchasing a flat, the respondent and his family members have treated the appellant with cruelty. We are taken through the written statement. It is nowhere pleaded in the written statement that on second day of marriage when the parties had been to Mahalaxmi temple the brother of the respondent demanded a sum of Rs.7 lacs. The very fact that this crucial plea was not taken at the earliest possible opportunity i.e. at the time of filing written statement, strictly speaking, the appellant could not have been permitted to lead evidence touching the said issue. Be that as it may, parties have led evidence touching the said issue. The evidence of witnesses is appreciated by the trial court. On the basis of appreciation of evidence a finding has been reached that the contention of the appellant about brother of the respondent having demanded Rs.7 lacs has been rejected. We have also gone through the evidence. The trial Court is justified in holding that the evidence of the respondent is more convincing and probable as compared to the evidence of the appellant. It is highly improbable
that any one would make a demand of dowry and/or money by whatever name called when parties were at the temple and that too on the very next day of the marriage. We do not find any justification to interfere with the finding recorded by the family court that there was no demand made by brother of the respondent at the temple. The next ground/circumstance put forth by the appellant for staying separately is that she was assaulted by the respondent when she was reached at her mother’s house on 7.6.89. This ground as well is wholly improbable and devoid of any semblance of truth for the reason that when the respondent and his brother’s wife Surekha had taken the appellant to reach her mother’s house, the appellant had communicated that three of them are reaching at her mother’s residence and hence a report was lodged with the police and police were present at the spot i.e. at the residence of the mother. The respondent and his sisterinlaw were immediately taken to the police station from the house of the appellant’s mother where they were made to wait for quite long time. Thus the allegation that the respondent assaulted the appellant near the residence of her mother on 7.6.89 when they had been there to reach the appellant is devoid of any truth and substance. The last circumstance put forth by the appellant to justify her separate residence is that the respondent and his sisterinlaw had planned to push the appellant from running train and that she over heard the conversation is equally false. It was already decided that the respondent and his sisterinlaw would reach the appellant to her mother’s house and this fact was conveyed by the appellant to her family members and hence police were waiting for the parties to arrive at the mother’s house. The story put forth by the appellant about conspiracy being hatched to push the appellant out of running train cannot be believed and has to be rejected. If none of the grounds put forth by the appellant are found to exist an inescapable conclusion has to be drawn that there was absolutely no justification for the appellant not to cohabit with the respondent and hence the judgment and decree passed by the family court granting divorce on the ground of desertion is perfectly legal and valid.

5. According to the respondent the only reason for the appellant not to cohabit with the respondent was her insistence that the respondent should procure a separate accommodation so that appellant and respondent can stay separately. It appears that the appellant was not happy to reside in small flat of 200 sq. ft.comprising of one room and kitchen wherein the respondent’s brother, his wife and three children were residing and the appellant and the respondent had to share the loft for privacy. According to the respondent as the marriage was an arranged marriage the family members of the appellant had visited the residence of the respondent prior to marriage and were in know of the financial condition and the nature of accommodation. However when the parties had been for honeymoon the appellant had broke the subject of separate residence and her desire to stay in a different accommodation. The respondent categorically informed the appellant that procuring separate accommodation in city like Bombay is almost impossible having regard to the salary of the respondent which was in the sum of Rs.1400 to 1500 per month. This case of the respondent has been accepted by the trial courtand rightly so. The evidence led by the respondent reposes confidence and is more probable as compared to the case put forth by the appellantwife. Hence the trial court is justified in reaching 7
the conclusion that the appellant is guilty of desertion and cruelty as she refused to cohabit with the respondent on nonexisting grounds. We do not see any reason to interfere with the impugned judgment. Hence Family Court Appeal No.148/04 is dismissed.

6. So far as the Family Court Appeal No.98/06 is concerned which goes to award maintenance of Rs.1800/per month to the appellant and Rs.2000/to the then minor daughter Rinku aggregating to Rs.3800/per month is also challenged by the appellantwife on the ground that the quantum of maintenance awarded is too much on lower side and the same not being adequate. Per contra, according to the learned counsel for the respondent the award of maintenance at the rate of RS.3800/per month itself is on higher side and on account of inability of the respondent to pay the same he was detained in civil prison as he was then in arrears of about Rs.17000/. It was only after a period of about one month when the respondent’s brother had deposited the amount the respondent was released. It is also pointed out that by an interim order this Court enhanced the amount of maintenance to Rs.25000/per month. The same being beyond the capacity of the respondent to pay on an application moved by the appellant, respondent was detained in civil prison on six occasions,the total period of detention being more than six months. It is also pointed out that the daughter has now attained majority and hence there is no need to continue the payment of Rs.2000/per month which was awarded to the daughter. Having regard to the financial status of the parties we are of the clear view that the maintenance granted by the family court in the sum of Rs.1800/to the appellant and Rs.2000/to the daughter was more than adequate.

8 In so far as the contention raised by the learned counsel for the respondent that the daughter has now attained majority we are of the clear view that in the changed circumstances it would be appropriate for the parties to approach the family court for modification of the order and we do not propose to deal with that aspect in this appeal. In the result Family Court Appeal No.98/06 as well stands dismissed. Needless to mention that all interim orders stand vacated. In view of disposal of appeal Civil Application No.291 of 2007 stands disposed of. At this stage learned counsel for the appellant seeks stay of
the judgment. By this judgment the appeals filed by the appellants are dismissed. As these are non executable orders, there is no question of granting stay of nonexecutable orders. Hence prayer for stay is rejected.

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