IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FAMILY COURT APPEAL No.86 OF 2014
Vaishali w/o. Rajesh Barde,
Aged : Adult,
R/o. C/o. Shri Hiwarkar,E.W.S. Colony, New Somwaripeth,Nagpur. : APPELLANT
…VERSUS…
Rahesh s/o. Harihar Barde,
Aged 41 years,
Occupation : School Teacher,
R/o. C/o. Samajsewa Vidyalaya,Wadhona, Tah. Nagbhid,Distt. Chandrapur. : RESPONDENT
Ms. Muley, Advocate for a Petitioner.
Shri Dongre, Advocate for a Respondent.
CORAM : SMT. VASANTI A. NAIK AND V.M.DESHPANDE, JJ.
DATE : 1 st MARCH, 2017.
ORAL JUDGMENT : (PER : Smt. Vasanti A. Naik, J.)
By this family justice appeal, a appellant hurdles a visualisation of a Family Court, antiquated 17.04.2008 permitting a petition filed by a respondent for a direct of divorce underneath Section 13 of a Hindu Marriage Act on a belligerent of cruelty and desertion.
The matrimony of a parties was solemnized on 27.07.1992 during Nagpur as per Hindu rites and customs. The appellant and a respondent started staying during encampment Sawargaon where, a respondent- father was operative as a teacher. It is a box of a father in a petition filed by him for a direct of divorce on a belligerent of cruelty and abandonment that a appellant-wife was some-more competent than him and, therefore, she always felt that a respondent-husband was not a correct compare for her. It is pleaded by a father in a petition that a mother did not have a enterprise to live with a father in Sawargaon. It is pleaded that a mother used to collect adult argue with a father time and again and used to abuse him in dirty language. It is pleaded that a father always attempted to adjust and safeguard that there was peace in a residence but, a mother always quarreled and attempted to reduce a picture of a father in a society. It is pleaded that a mother did not have any goal to perform a matrimonial duties and she used to leave a matrimonial home during peculiar times. It is staid that due to such poise of a wife, a father had to humour good mental agony. It is pleaded that in a initial Diwali after a marriage, a mother left a residence of a father yet informing him and returned to a residence on a day of Laxmipujan. It is pleaded that a acts on a partial of a mother amounted to cruelty and a father is entitled to a direct of divorce on a belligerent of cruelty. The father pleaded that he was also entitled to a direct of divorce on a belligerent of desertion. It is pleaded that a mother had left a matrimonial residence someday in May 1994 yet any usually or reasonable forgive and she was staying divided from a father for about 11 years, compartment a petition was filed. It is pleaded by a father that a mother had flatly refused to come to Bramhapuri where his relatives resided. It is pleaded that a father took several stairs to move behind a mother to a matrimonial home, yet a mother did not oblige. It is pleaded that a mother and her relatives had sensitive a father that she was not prepared to cohabit with a father in a matrimonial home and a matrimony between a parties should be dissolved. The father sought a direct of divorce on a belligerent of cruelty and desertion.
The mother filed a created matter and denied a explain of a husband. The mother denied that she had treated a father with cruelty. The mother denied that she illtreated a father since she was rarely educated. The mother denied that she had no enterprise to live with a relatives during Bramhapuri. The mother denied that she had left a father yet any usually or reasonable excuse. The mother also denied that she used to leave a matrimonial residence time and again yet any rhyme or reason yet informing a husband. The mother denied all a inauspicious allegations that were leveled opposite her by a husband. In a specific pleadings, a mother pleaded that a allegations leveled opposite a mother by a father usually showed a normal wear and rip in a matrimonial home. It is pleaded that a allegations leveled by a father opposite a wife, even if hold to be valid could not volume to cruelty. It is pleaded that a father was always suspecting a wife’s impression and a pronounced act on a partial of a father caused critical mental anguish to a wife. The mother pleaded that an unrecoverable mangle irretrievably stop down of a matrimony is not a belligerent for extenuation a direct of divorce underneath a Hindu Marriage Act. The mother pleaded that a father has not forked out that a mother had a enterprise to live alone from a husband. The mother sought for a exclusion of a petition.
The mother had filed a apart petition opposite a father underneath Section 18 of a Hindu Adoption and Maintenance Act for extend of maintenance. Both a petitions, a one filed by a father for a direct of divorce and a other filed by a mother for upkeep were attempted together by a Family Court and while partly permitting a petition filed by a mother for maintenance, a Family Court authorised a petition filed by a father for a direct of divorce on a belligerent of cruelty and desertion. The visualisation of a Family Court, so distant as it grants a direct of divorce in foster of a father is challenged by a mother in this family justice appeal.
Ms. Muley, a schooled warn for a appellant-husband submitted that a Family Court could not have postulated a direct of divorce in foster of a husband. It is staid that a Family Court was not fit in holding that a mother was not fervent of staying with a father and she had consented for a direct of divorce by mutual consent, by usurpation a sum of Rs.3/- lakhs. It is submitted that a allegations leveled by a father opposite a mother would during a many be deliberate to be a acts display a normal wear and rip in a matrimonial residence and a pronounced allegations, even if they are hold to be proved, can't outcome in holding that a mother had treated a father with cruelty. It is submitted that a direct of divorce could not have been upheld in foster of a father on a belligerent of desertion, as there is justification on record to uncover that after a mother left a matrimonial residence in May 1994, she had attempted to join a association of a father by returning to a matrimonial home in Jul 1994. It is submitted that conjunction is a factum of abandonment proved, nor is a factum of ‘animus deserendi’ valid in this case. The schooled warn submitted that a petition filed by a father for a direct of divorce was probable to be dismissed.
Shri Dongre, a schooled warn for a respondent-husband has upheld a visualisation of a Family Court. It is submitted that a Family Court has deliberate a justification of a parties in fact and has hold that a mother had treated a father with cruelty and that she had forlorn him. It is submitted that there was plenty justification on record to uncover that a mother was carrying a supremacy formidable and she always used to argue with a husband, as she was some-more prepared than him. It is submitted that a father had clearly staid in his interrogate on a idea done on interest of a mother that a mother had forked out a spelling mistake done by a father and had admonished him that being prepared he should not have committed such a mistake. It is staid that a father had staid in his evidence, generally in his interrogate that a mother used to taunt a father since he was reduction prepared than a wife. It is staid that a father had staid in his interrogate that he has staid in his confirmation about a function of a mother that lowered his picture in a society. It is staid that a father certified that a mother had demanded divorce on remuneration of an amount. It is staid that a idea given on interest of a mother to a father in his interrogate and a answers of a father thereto would clearly infer that a mother was treating a father with cruelty. It is submitted that a Family Court has righteously hold that a mother had left a association of a father yet any usually or reasonable excuse. It is submitted that a Family Court has righteously hold that a mother had forlorn a father and a father was not obliged for a separation. It is submitted that there is zero on record to uncover that a father had driven a mother out of a residence and that he had not taken any stairs for staying together. The schooled J-fca86.14.odt 7/14 warn sought for a exclusion of a Family Court Appeal.
It appears on a hearing of a strange record and record and on conference a schooled warn for a parties, that a following points arise for integrity in this family justice interest :
i) Whether a father proves that a mother has treated him with cruelty ?
ii) Whether a father proves that a mother has forlorn him yet any usually or reasonable forgive ?
iii) Whether a father is entitled to a direct of divorce ?
iv) What sequence ?
The pleadings of a parties are narrated in fact in a progressing partial of a judgment. The father had entered into a declare box and had reiterated a contribution staid by him in his pleadings in courtesy to a inlet of a wife. He had staid that she used to leave a residence yet any rhyme or reason yet informing a husband. The father had also staid in his justification that a mother did not like to reside in Bramhapuri along with his relatives and that on a initial Diwali she had left a residence yet informing him and had returned on a day of Laxmipujan. It is staid by a father that a mother always used to taunt him since she had cumulative a degrees of M.Com., M.A. and M. Phil. and a father was not as prepared as her. The father staid that time and again a mother used to argue with a father and infrequently a neighbours had to meddle and this control on a partial J-fca86.14.odt 8/14 of a mother has lowered his picture in a society. The father narrated all a other contribution pleaded by him in his petition in his hearing in chief. The father was cross-examined on interest of a wife. The cross- hearing of a father is unequivocally material. In fact, a suggestions given on interest of a mother to a father proves a box of a father that a mother had treated him with cruelty. The father has certified in his interrogate that a mother was some-more competent than him and that once she had forked out a spelling mistake and had scolded him that he should not have committed such a mistake, being educated. The father certified in his interrogate that there were certain instances that done him trust that a mother was not prepared to live with him. The father staid in his interrogate that he had staid in his confirmation about a wife’s function that resulted in obscure his picture in a society. The father certified in his cross- hearing that Laxmipujan falls on 3rd or 4th day of Diwali festival and a mother had left a matrimonial home on Diwali yet informing him and had returned on a day of Laxmipujan. The father certified in his interrogate that he did not know where a mother had left on a day of Diwali. The father certified that he had no believe about a devise of a mother to leave a matrimonial home in May 1994. The father certified that a mother had demanded divorce on remuneration of amount. The father staid that he had staid about a fact in honour of direct of income by a mother in his affidavit.
It is apparent from a interrogate of a father that for a sparse matter, where a father committed a spelling mistake, a mother took a father to charge in a early days of matrimony and told him that he should not have committed such a mistake, when he was educated. The parties had resided together for not some-more than 4 months. Within a brief duration of 4 months a normal mother might not even open adult to tell her father that he has committed a mistake and that he should never dedicate it again. It is apparent that within a brief stay of about 4 months with a father in a matrimonial home during that period, she had left him time and again and had left to her parents, she had admonished a father for a bagatelle spelling mistake. The father had staid in his interrogate that a mother used to taunt him since he was reduction educated. This idea should not have come from a side of a mother to a father in his cross-examination. The father had also staid in his interrogate that a mother had attempted to reduce his picture in a multitude and that she had left a residence on a initial day of Diwali yet informing him and returned to a residence on a day of Laxmipujan. The father had staid in his interrogate that he was not wakeful about a devise of a mother to leave a matrimonial residence in May 1994. The father also staid in his interrogate that a mother had demanded divorce on remuneration of J-fca86.14.odt 10/14 amount. This fact is fortified by a agree divorce petition filed by a parties in a Family Court. The father and a mother had concluded that a father would compensate a sum of Rs.3/- lakhs to a mother as full and final allotment and that a matrimony between them would be dissolved. After filing a petition in a Court, a Family Court has remarkable that when a parties were called for recording a matter in honour of agree divorce, a mother had corroborated out. It is apparent from a cross- hearing of a father that a mother had demanded divorce from a father on remuneration of volume and it appears that a mother was not prepared to accept a volume of Rs.3/- lakhs as she preferred some some-more volume when a matter was staid and a agree direct was to be upheld by a Court. The father had not usually examined himself yet had also examined his uncle Shri Keshav Mandavgade. This declare had clearly staid in his hearing in arch that whenever a father asked a mother to come along with him to his relatives during Bramhapuri, she refused to accompany him. It is staid that yet informing a husband, a mother used to go to Nagpur to her parental home from Sawargaon, when a father was out of a residence on his duties. Shri Keshav has staid in a hearing in arch that when he had asked a mother not to act in such a fashion, a mother pronounced that a father and his family members are not cool people and they are not most educated. The declare staid in his justification that a mother told him that she did not get a matrimonial residence as per her enterprise and she had married a father usually with a perspective to greatfully her parents. The declare staid that a mother had certified that since she was not happy in a matrimonial home, she used to leave a residence and go to her parental residence during Nagpur. The declare also staid in his justification that a mother told him that she was prepared to disjoin a matrimonial relationship, yet a volume spent by her father on a matrimony should be returned to her. Though, this declare was cross-examined on interest of a wife, there is no interrogate on a aforesaid contribution staid by him in his hearing in chief. In a deficiency of any interrogate on a element justification tendered by Shri Keshav Mandavgade, a contribution staid by him in his hearing in arch sojourn unchallenged and a father is successful in proof his box that a mother had treated him with cruelty on a basement of his justification as also a justification of Shri Keshav Mandavgade. It is also important that yet a mother had not pleaded in her created matter that she had found a sketch of a lady in a eremite book and a father had snatched a pronounced sketch from her and that he had an event with a pronounced lady, a mother went on to make a aforesaid statements in her hearing in chief. The Family Court righteously hold that levelling critical allegations on a impression of a celebration and unwell to infer a same would tantamount to cruelty. The mother has staid in a evidence, yet there are no pleadings in that regard, that when a mother had enquired about a sketch of a lady in a eremite book of a husband, a father had started torturing and violence her mercilessly. If a father had filed a petition eleven years after a subdivision of a parties and if this occurrence had unequivocally occurred, a mother would have, in a initial place pleaded these contribution in her created statement. The wife, however, did not do so. Levelling critical allegations opposite a husband’s impression yet pleading and proof a same, if deliberate along with a other acts on a partial of a mother would tantamount to cruelty. The Family Court hold and righteously so that a mother had forlorn a father yet any usually or reasonable excuse. The parties were staying alone for some-more than eleven years before a father filed a petition for a direct of divorce. The parties had resided together usually for 4 months and there was a subdivision duration of eleven years when a petition was filed. The Family Court, therefore, hold on an appreciation of a justification on record that a father did not expostulate divided a mother from a matrimonial home, as pleaded by her and a mother had left a association of a father yet any usually or reasonable excuse. The Family Court hold that it was apparent from a justification of a parties that there was no goal on a partial of a mother to join a association of a husband. The box of a mother that she returned to a matrimonial home with a perspective to reside with a father can't be believed.
Though a mother had released a authorised notice to a father for claiming maintenance, a mother did not ask a father to reside along with her. The mother had also not filed any record for compensation of conjugal rights. If a mother unequivocally preferred to live with a father she would have certainly filed a petition for compensation of conjugal rights while filing a petition for maintenance. The Family Court has righteously hold that a mother started vital alone from a father on her possess yet any reasonable forgive and she was not prepared to resume cohabitation. After carrying hold that a father had not driven a mother divided from a residence and that she was obliged for a separation, a Family Court hold that a father was entitled to a direct of divorce on a belligerent of desertion. We find that a Family Court has righteously appreciated a justification of a parties to extend a direct of divorce in foster of a husband. We find that a mother was meddlesome in securing income from a father and was not meddlesome in staying with a husband. The aforesaid position could be fortified by a agree terms that were sealed by a parties and presented in a Family Court. The mother afterwards refused to concede a matter with a perspective to safeguard that a father pays some some-more amount. In a resources of a case, it can't be pronounced that a Family Court was not fit in extenuation a direct of divorce in foster of a husband.
As a visualisation of a Family Court is usually and proper, a family justice interest is discharged with no sequence as to costs.
JUDGE JUDGE