Divorce after 24 years, Women desert husband in 1992 tries to contest divorce decree but loose

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 the Petitioner.
Shri Dongre, Advocate for the 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 court appeal, the appellant challenges the judgment of the Family Court, dated 17.04.2008 allowing a petition filed by the respondent for a decree of divorce under Section 13 of the Hindu Marriage Act on the ground of cruelty and desertion.

The marriage of the parties was solemnized on 27.07.1992 at Nagpur as per Hindu rites and customs. The appellant and the respondent started residing at village Sawargaon where, the respondent- husband was working as a teacher. It is the case of the husband in the petition filed by him for a decree of divorce on the ground of cruelty and desertion that the appellant-wife was more qualified than him and, therefore, she always felt that the respondent-husband was not a proper match for her. It is pleaded by the husband in the petition that the wife did not have a desire to live with the husband in Sawargaon. It is pleaded that the wife used to pick up quarrel with the husband time and again and used to abuse him in filthy language. It is pleaded that the husband always tried to adjust and ensure that there was harmony in the house but, the wife always quarreled and tried to lower the image of the husband in the society. It is pleaded that the wife did not have any intention to perform the matrimonial duties and she used to leave the matrimonial home at odd times. It is stated that due to such behaviour of the wife, the husband had to suffer great mental agony. It is pleaded that in the first Diwali after the marriage, the wife left the house of the husband without informing him and returned to the house on the day of Laxmipujan. It is pleaded that the acts on the part of the wife amounted to cruelty and the husband is entitled to a decree of divorce on the ground of cruelty. The husband pleaded that he was also entitled to a decree of divorce on the ground of desertion. It is pleaded that the wife had left the matrimonial house sometime in May 1994 without any just or reasonable excuse and she was staying away from the husband for about 11 years, till the petition was filed. It is pleaded by the husband that the wife had flatly refused to come to Bramhapuri where his parents resided. It is pleaded that the husband took several steps to bring back the wife to the matrimonial home, but the wife did not oblige. It is pleaded that the wife and her parents had informed the husband that she was not ready to cohabit with the husband in the matrimonial home and the marriage between the parties should be dissolved. The husband sought a decree of divorce on the ground of cruelty and desertion.

The wife filed the written statement and denied the claim of the husband. The wife denied that she had treated the husband with cruelty. The wife denied that she illtreated the husband because she was highly educated. The wife denied that she had no desire to live with the parents at Bramhapuri. The wife denied that she had left the husband without any just or reasonable excuse. The wife also denied that she used to leave the matrimonial house time and again without any rhyme or reason without informing the husband. The wife denied all the adverse allegations that were levelled against her by the husband. In the specific pleadings, the wife pleaded that the allegations levelled against the wife by the husband only showed the normal wear and tear in the matrimonial home. It is pleaded that the allegations levelled by the husband against the wife, even if held to be proved could not amount to cruelty. It is pleaded that the husband was always suspecting the wife’s character and the said act on the part of the husband caused severe mental agony to the wife. The wife pleaded that an irretrievable break irretrievably brake down of a marriage is not a ground for granting a decree of divorce under the Hindu Marriage Act. The wife pleaded that the husband has not pointed out that the wife had a desire to live separately from the husband. The wife sought for the dismissal of the petition.

The wife had filed a separate petition against the husband under Section 18 of the Hindu Adoption and Maintenance Act for grant of maintenance. Both the petitions, the one filed by the husband for the decree of divorce and the other filed by the wife for maintenance were tried together by the Family Court and while partly allowing the petition filed by the wife for maintenance, the Family Court allowed the petition filed by the husband for a decree of divorce on the ground of cruelty and desertion. The judgment of the Family Court, so far as it grants a decree of divorce in favour of the husband is challenged by the wife in this family court appeal.

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Ms. Muley, the learned counsel for the appellant-husband submitted that the Family Court could not have granted a decree of divorce in favour of the husband. It is stated that the Family Court was not justified in holding that the wife was not desirous of residing with the husband and she had consented for a decree of divorce by mutual consent, by accepting a sum of Rs.3/- lakhs. It is submitted that the allegations levelled by the husband against the wife would at the most be considered to be the acts showing the normal wear and tear in a matrimonial house and the said allegations, even if they are held to be proved, cannot result in holding that the wife had treated the husband with cruelty. It is submitted that a decree of divorce could not have been passed in favour of the husband on the ground of desertion, as there is evidence on record to show that after the wife left the matrimonial house in May 1994, she had tried to join the company of the husband by returning to the matrimonial home in July 1994. It is submitted that neither is the factum of desertion proved, nor is the factum of ‘animus deserendi’ proved in this case. The learned counsel submitted that the petition filed by the husband for a decree of divorce was liable to be dismissed.

Shri Dongre, the learned counsel for the respondent-husband has supported the judgment of the Family Court. It is submitted that the Family Court has considered the evidence of the parties in detail and has held that the wife had treated the husband with cruelty and that she had deserted him. It is submitted that there was ample evidence on record to show that the wife was having a superiority complex and she always used to quarrel with the husband, as she was more educated than him. It is submitted that the husband had clearly stated in his cross-examination on the suggestion made on behalf of the wife that the wife had pointed out a spelling mistake made by the husband and had admonished him that being educated he should not have committed such a mistake. It is stated that the husband had stated in his evidence, especially in his cross-examination that the wife used to taunt the husband because he was less educated than the wife. It is stated that the husband had stated in his cross-examination that he has stated in his affidavit about the behavior of the wife that lowered his image in the society. It is stated that the husband admitted that the wife had demanded divorce on payment of an amount. It is stated that the suggestion given on behalf of the wife to the husband in his cross-examination and the answers of the husband thereto would clearly prove that the wife was treating the husband with cruelty. It is submitted that the Family Court has rightly held that the wife had left the company of the husband without any just or reasonable excuse. It is submitted that the Family Court has rightly held that the wife had deserted the husband and the husband was not responsible for the separation. It is submitted that there is nothing on record to show that the husband had driven the wife out of the house and that he had not taken any steps for residing together. The learned J-fca86.14.odt 7/14 counsel sought for the dismissal of the Family Court Appeal.

It appears on a perusal of the original record and proceedings and on hearing the learned counsel for the parties, that the following points arise for determination in this family court appeal :

i) Whether the husband proves that the wife has treated him with cruelty ?

ii) Whether the husband proves that the wife has deserted him without any just or reasonable excuse ?

iii) Whether the husband is entitled to a decree of divorce ?

iv) What order ?

The pleadings of the parties are narrated in detail in the earlier part of the judgment. The husband had entered into the witness box and had reiterated the facts stated by him in his pleadings in regard to the nature of the wife. He had stated that she used to leave the house without any rhyme or reason without informing the husband. The husband had also stated in his evidence that the wife did not like to reside in Bramhapuri along with his parents and that on the first Diwali she had left the house without informing him and had returned on the day of Laxmipujan. It is stated by the husband that the wife always used to taunt him because she had secured the degrees of M.Com., M.A. and M. Phil. and the husband was not as educated as her. The husband stated that time and again the wife used to quarrel with the husband and sometimes the neighbours had to intervene and this conduct on the part J-fca86.14.odt 8/14 of the wife has lowered his image in the society. The husband narrated all the other facts pleaded by him in his petition in his examination in chief. The husband was cross-examined on behalf of the wife. The cross- examination of the husband is very material. In fact, the suggestions given on behalf of the wife to the husband proves the case of the husband that the wife had treated him with cruelty. The husband has admitted in his cross-examination that the wife was more qualified than him and that once she had pointed out a spelling mistake and had scolded him that he should not have committed such a mistake, being educated. The husband admitted in his cross-examination that there were certain instances which made him believe that the wife was not ready to live with him. The husband stated in his cross-examination that he had stated in his affidavit about the wife’s behavior which resulted in lowering his image in the society. The husband admitted in his cross- examination that Laxmipujan falls on 3rd or 4th day of Diwali festival and the wife had left the matrimonial home on Diwali without informing him and had returned on the day of Laxmipujan. The husband admitted in his cross-examination that he did not know where the wife had gone on the day of Diwali. The husband admitted that he had no knowledge about the plan of the wife to leave the matrimonial home in May 1994. The husband admitted that the wife had demanded divorce on payment of amount. The husband stated that he had stated about the fact in respect of demand of money by the wife in his affidavit.

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It is apparent from the cross-examination of the husband that for a petty matter, where the husband committed a spelling mistake, the wife took the husband to task in the early days of marriage and told him that he should not have committed such a mistake, when he was educated. The parties had resided together for not more than four months. Within a short period of four months a normal wife may not even open up to tell her husband that he has committed a mistake and that he should never commit it again. It is apparent that within a short stay of about four months with the husband in the matrimonial home during which period, she had left him time and again and had gone to her parents, she had admonished the husband for a trifle spelling mistake. The husband had stated in his cross-examination that the wife used to taunt him because he was less educated. This suggestion should not have come from the side of the wife to the husband in his cross-examination. The husband had also stated in his cross-examination that the wife had tried to lower his image in the society and that she had left the house on the first day of Diwali without informing him and returned to the house on the day of Laxmipujan. The husband had stated in his cross-examination that he was not aware about the plan of the wife to leave the matrimonial house in May 1994. The husband also stated in his cross-examination that the wife had demanded divorce on payment of J-fca86.14.odt 10/14 amount. This fact is fortified by a consent divorce petition filed by the parties in the Family Court. The husband and the wife had agreed that the husband would pay a sum of Rs.3/- lakhs to the wife as full and final settlement and that the marriage between them would be dissolved. After filing the petition in the Court, the Family Court has noted that when the parties were called for recording the statement in respect of consent divorce, the wife had backed out. It is apparent from the cross- examination of the husband that the wife had demanded divorce from the husband on payment of amount and it appears that the wife was not ready to accept the amount of Rs.3/- lakhs as she desired some more amount when the matter was settled and a consent decree was to be passed by the Court. The husband had not only examined himself but had also examined his uncle Shri Keshav Mandavgade. This witness had clearly stated in his examination in chief that whenever the husband asked the wife to come along with him to his parents at Bramhapuri, she refused to accompany him. It is stated that without informing the husband, the wife used to go to Nagpur to her parental home from Sawargaon, when the husband was out of the house on his duties. Shri Keshav has stated in the examination in chief that when he had asked the wife not to behave in such a fashion, the wife said that the husband and his family members are not dignified people and they are not much educated. The witness stated in his evidence that the wife told him that she did not get a matrimonial house as per her desire and she had married the husband only with a view to please her parents. The witness stated that the wife had admitted that because she was not happy in the matrimonial home, she used to leave the house and go to her parental house at Nagpur. The witness also stated in his evidence that the wife told him that she was ready to sever the matrimonial relationship, but the amount spent by her father on the marriage should be returned to her. Though, this witness was cross-examined on behalf of the wife, there is no cross-examination on the aforesaid facts stated by him in his examination in chief. In the absence of any cross-examination on the material evidence tendered by Shri Keshav Mandavgade, the facts stated by him in his examination in chief remain unchallenged and the husband is successful in proving his case that the wife had treated him with cruelty on the basis of his evidence as also the evidence of Shri Keshav Mandavgade. It is also notable that though the wife had not pleaded in her written statement that she had found a photograph of a woman in a religious book and the husband had snatched the said photograph from her and that he had an affair with the said lady, the wife went on to make the aforesaid statements in her examination in chief. The Family Court rightly held that levelling serious allegations on the character of a party and failing to prove the same would tantamount to cruelty. The wife has stated in the evidence, though there are no pleadings in that regard, that when the wife had enquired about the photograph of a woman in a religious book of the husband, the husband had started torturing and beating her mercilessly. If the husband had filed the petition eleven years after the separation of the parties and if this incident had really occurred, the wife would have, in the first place pleaded these facts in her written statement. The wife, however, did not do so. Levelling serious allegations against the husband’s character without pleading and proving the same, if considered along with the other acts on the part of the wife would tantamount to cruelty. The Family Court held and rightly so that the wife had deserted the husband without any just or reasonable excuse. The parties were residing separately for more than eleven years before the husband filed the petition for a decree of divorce. The parties had resided together only for four months and there was a separation period of eleven years when the petition was filed. The Family Court, therefore, held on an appreciation of the evidence on record that the husband did not drive away the wife from the matrimonial home, as pleaded by her and the wife had left the company of the husband without any just or reasonable excuse. The Family Court held that it was apparent from the evidence of the parties that there was no intention on the part of the wife to join the company of the husband. The case of the wife that she returned to the matrimonial home with a view to reside with the husband cannot be believed.

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Though the wife had issued a legal notice to the husband for claiming maintenance, the wife did not ask the husband to reside along with her. The wife had also not filed any proceedings for restitution of conjugal rights. If the wife really desired to live with the husband she would have surely filed a petition for restitution of conjugal rights while filing a petition for maintenance. The Family Court has rightly held that the wife started living separately from the husband on her own without any reasonable excuse and she was not ready to resume cohabitation. After having held that the husband had not driven the wife away from the house and that she was responsible for the separation, the Family Court held that the husband was entitled to a decree of divorce on the ground of desertion. We find that the Family Court has rightly appreciated the evidence of the parties to grant a decree of divorce in favour of the husband. We find that the wife was interested in securing money from the husband and was not interested in residing with the husband. The aforesaid position could be fortified by the consent terms that were signed by the parties and presented in the Family Court. The wife then refused to compromise the matter with a view to ensure that the husband pays some more amount. In the circumstances of the case, it cannot be said that the Family Court was not justified in granting a decree of divorce in favour of the husband.

As the judgment of the Family Court is just and proper, the family court appeal is dismissed with no order as to costs.

JUDGE JUDGE

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