498a Mental Cruelty – Divorce , Maintenance of child

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 66 OF 2006

Ajay Ashok Khedkar …. ….. ….. ….. Appellant.
V/s
Sou. Laleeta Ajay Khedkar….. …. ….. ….Respondent.

Mr.Hitesh Vyas, Adv. For the appellant.
Mr.Sachin S. Pande, Adv. For the respondent.
CORAM: A.P.DESHPANDE AND SMT. R.P. SONDURBALDOTA, JJ.
Date:12th April, 2010.
ORAL JUDGMENT: (Per Deshpande, J.)

This is family court appeal filed by the unsuccessful husband
whose petition for divorce has been dismissed by the Family Court.
The appellant and the respondent’s marriage was solemnized as per
Hindu rites and customs at Pune on 8.3.2001. The marriage was
an arranged marriage and after the marriage the respondent came
to reside with the appellant. The appellant’s mother resides along
with the appellant. The petition for divorce was filed on the
ground of mental cruelty under section 13(1)(ia) of the Hindu Marriage Act, 1955.

2. According to the petitioner on the wedding night itself the
respondent alleged that she was deceived in regard to income of
the appellant. The respondent allegedly stated that the salary of
the appellant as informed to her was much more than what he was
actually receiving. It is also alleged that with reference to the
number of spectacle the respondent taunted the appellant by saying
that she was made to perform marriage with a blind person.
Touching those issues the respondent allegedly started quarreling
with the petitioner and insulting the petitioner. It is the case of the
appellant that since beginning the behaviour of the respondent was
arrogant and rude and immediately after the marriage the
respondent was insisting that the petitioner should stay separately
from his mother in one of the two flats owned by the appellant’s
family situated at Raviwar Peth, Pune. According to the appellant
he tried to convince the respondent that his mother is old and there
is no one else to look after her and hence refused to stay separately.
It is also the case of the appellant that the respondent gave threats
that she would commit suicide if the appellant fails to reside
separately. The respondent also denied conjugal rights to the
appellant so as to coerce him to stay separate from his mother. On
the above referred allegations touching mental agony and torture
divorce petition was filed.
3. Sometime in December 2002 the respondent went to the
house of her parents for delivery. She delivered a girl child on
26.2.03. Despite passage of enough time the respondent did not
join the company of the appellant. According to the appellant
because of the insistence on the part of respondent to stay
separately the marital life was disturbed and peace and harmony
was lost.
On 3.5.03 the father of the respondent brought the
respondent to the house of the appellant but without meeting the
appellant or his mother respondent’s father went away. On 6.5.03
the respondent called her parents and brother at the house of the
appellant. The near relations of the respondent quarreled with the
petitioner and his mother and after creating a scene threatened the
appellant that they would implicate the appellant and members of
his family in false criminal cases. So threatening the appellant,
father and brother of the respondent took her away along with
them. While leaving the appellant’s residence they said that only if
he resides separately the respondent will be sent back. The
appellant immediately sent a notice on 9.5.03 asking the
respondent to join the company and cohabit with the appellant but
instead of joining the company of the appellant the respondent
initiated criminal case under section 498A of IPC not only against
the appellant and his mother but three other near relations who
were staying separately including the uncle, aunt and husband of
the aunt. All the persons accused of having committed the offence
under section 498A of IPC were arrested by the police and they
were detained in custody. This is the main circumstance which is
relied upon by the learned counsel for the appellant to contend that
lodging of false case which resulted in arrest and detention of
family members of the appellant is singularly sufficient enough to
hold that the respondent is guilty of causing mental cruelty and
agony to the appellant and thus pressed for grant of decree of
divorce. According to the learned counsel for the appellant arrest
and detention of the family members and near relations of the
appellant in false case has caused him utmost mental torture.
During pendnecy of divorce petition the said criminal case came to
be decided by a judgment dated 13.5.05 by Judicial Magistrate,
First Class, Pune acquitting the appellant and all his family
members from the charge under section 498A of IPC.
4. Perusal of the judgment clearly reveals that the prosecution
utterly failed to prove the case put forth by the complainant. The
Judicial Magistrate has recorded categoric finding that the
complainant’s own testimony falsifies the prosecution case that the
complainant was treated cruely and was harassed by the accused
persons with a view to coerce her and her parents to meet their
unlawful demand of Rs.50,000/.
The Magistrate has totally
disbelieved the version of the complainant/wife and has acquitted
the accused persons. On a careful reading of the judgment
rendered in the case of prosecution under section 498A of IPC one
thing is crystal clear and it can be safely assumed that the wife had
filed a false case not only against her husband and motherinlaw
but had unnecessarily roped in other near relations. It is obvious
that on account of arrest and detention of the husband and his
family members respondent has treated the appellant with utmost
mental cruelty and the appellant has suffered agony. It will not be
out of place to mention that the complaint filed by the wife was
calculatedly designed in as much as it was a sort of counter blast to
the divorce petition filed by the husband. The appellant had filed
divorce petition on 16.6.03 whereas the complaint was lodged by
the respondentwife
on 11.7.03.
5. Learned counsel for the appellant submits that the appellant
and his family members including ladies who did not stay along
with the appellant were arrested and detained causing utmost
humiliation and embarrassment and agony to the appellant. This
solitary incidence would itself constitute mental cruelty even if
other circumstances are not taken into account and thus the trial
court has erred in law in dismissing the divorce petition. Para 29 of
the judgment of family court deals with this aspect of the matter by
observing :
“There can not be absolutely two opinions regarding
legal proposition that if the wife filed false criminal cases
against the husband, her conduct does amount to causing
mental cruelty and torture to him, therefore, the husband
becomes entitled for a decree of divorce. The necessary
condition for constituting such legal cruelty is that the wife
has indulged into making false and reckless allegation by
filing false complaint to the police. A singular complaint filed
by wife under section 498A of IPC against the husband and
his family members can not indicate the tendency of wife to
indulge into making such false allegation.”
We fail to understand the logic behind the reasoning adopted by
the family court to hold that a singular complaint of this nature
under section 498A of IPC resulting in arrest and detention of the
family members and relatives thereby causing utmost
embarrassment, humiliation and suffering does not constitute
mental cruelty. It is illogical that more than one complaint are
necessary to be filed to constitute mental cruelty. In our view,
embarrassment, humiliation and suffering that is caused on account
of arrest and detention of appellant and his family members and
relatives in a false case does constitute mental cruelty to enable the
husband to seek decree of divorce on this sole ground. In our
considered opinion, the approach of the family court is wholly
perverse and the reasoning cannot be sustained in law. In regard to
other circumstances the family court has observed :
“At the most one can infer that this conduct of the
respondent may have caused some disharmony between the
couple but in no way it can be said that it was sufficient to
constitute a mental cruelty to petitioner or his mother.”
Without deliberating on all the circumstances in detail we are of
the clear view that cumulative effect of the behaviour and conduct
of the respondent is good enough to draw an inference that
respondent has caused utmost mental pain and suffering which
constitute mental cruelty to the appellant and hence the appellant
is entitled for decree of divorce on the ground of cruelty.
6. This brings us to the consideration of question of granting
maintenance to the girl child who is aged about 8 years. The
family court in exercise of powers under section 24 had granted
interim maintenance of Rs.700/p.
m. whereas this Court by an
interim order has raised it to Rs.1000/p.
m. The appellant so also
the respondent are both gainfully employed. They are earning in
the range of Rs.5000 to 7000 per month each. The child is in
custody of the respondentmother.
Learned counsel for the
appellant on instructions from his client who is present in the court
submitted that the appellant would pay a sum of Rs.1.5 lacs
towards permanent alimony for the maintenance of child. Having
found the said amount insufficient we persuaded the counsel for
the appellant to raise the amount so that monthly interest on the
said amount works out in the range of Rs.2000 per month. The
mother of the appellant has come forward to contribute further
sum of Rs.1.5 lacs towards maintenance of the child. In our view if
the appellant pays sum of Rs.3 lacs by way of permanent alimony
for the maintenance of child the said amount if kept in fixed
deposit can fetch interest of Rs.2000/per month and the same
could be utilized by the respondent for upbringing of the daughter.
In the result we pass the following order:
(i) The marriage of the appellant and respondent stands dissolved by a decree of divorce under section 13(1)(ia);
(ii) The appellant shall pay sum of Rs.3 lacs by way of permanent alimony for the maintenance of the girl child. The said amount of Rs.3 lacs shall be invested in fixed deposit in a nationalized bank and the respondent is permitted to withdraw the interest accrued thereon quarterly. The amount of Rs.3 lacs shall be invested in the fixed deposit within two months from today in the name of the minor child and the respondent would be shown as her guardian;
(iii) The said sum of Rs.3 lacs shall be kept invested in fixed deposit till the child attains majority.
(iv) Appeal is allowed with no order as to costs.

READ  Factors to be considered for grant of interim maintenance u/s.24 of Hindu marriage Act

At this stage the learned counsel for the respondent seeks stay of this order. Having regard to the peculiar facts and circumstances we do not find any reason to stay the impugned order. Hence the prayer is rejected.

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