Sau. Archna W/O Mahesh Dhore vs Mahesh S/O Bhanudas Dhore on 20 July, 2017

fca76.16.odt

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR

FAMILY COURT APPEAL NO.76/2016

APPELLANT: Sau. Archna w/o Mahesh Dhore,
Ori. respondent Aged about 39 years, Occ. household work,
On R.A. Presently c/o Shri T.A. Tathod (Patil),
Ex. Tathod Mangal Karyalaya/Tathod Niwas,
Amrut Nagar, Behind Govt. Milk Dairy,
Akola, Tq. and Distt. Akola.

…VERSUS…

RESPONDENT: Mahesh s/o Bhanudas Dhore,
Ori. petitioner Aged about 40 years, Occ. Service,
On R.A. r/o Saptashringi Mandir, old Cidco Houses, Nashik.
————————————————————————————————–
Shri C.A. Joshi, Counsel for the appellant
Shri N.S. Warulkar, Counsel for the respondent
————————————————————————————————–
CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.

DATE : 20.07.2017

ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)

Heard. ADMIT. The family court appeal is head finally with

the consent of the learned Counsel for the parties.

By this family court appeal, the appellant -wife challenges

the judgment of the Family Court, Akola dated 26/9/2016, allowing a

petition filed by the respondent – husband for a decree of divorce under

Section 13 (1) (ia) of the Hindu Marriage Act.

Few facts giving rise to the family court appeal are stated

thus : –

::: Uploaded on – 25/07/2017 08/08/2017 00:40:45 :::

fca76.16.odt

2

The respondent – husband and the appellant -wife were

married according to Hindu rites and customs on 18/11/2003. A son,

named Aditya is born from the wedlock. It is the case of the husband in

the petition filed by him for a decree of divorce on the ground of cruelty

that the wife was whimsical, hot-tempered and was always quarrelling

with the husband and his family members. It is pleaded that after the

marriage, the parties resided in the matrimonial house at Nagpur and

then the husband was transferred to Nashik and the parents of the

husband were also residing with him at Nashik. It is pleaded that when

the wife joined the company of the husband and his parents at Nashik,

she did not behave properly with his parents and on a belief that the wife

would mend her ways in future the husband continued to stay in her

company. It is pleaded that the wife always pestered the husband that the

husband should reside separately and away from his parents. It is pleaded

that while residing in the matrimonial home the wife used to get up late

in the morning, she used to refuse to perform the household duties and

she used to abuse and insult the husband and his parents. It is pleaded

that the wife behaved very badly with the parents of the husband. It is

pleaded that when the parents of the husband tried to talk with their

grandson Aditya or fondle him, the wife used to snatch the child from the

parents of the husband. It is pleaded that the wife always used to threaten

::: Uploaded on – 25/07/2017 08/08/2017 00:40:45 :::
fca76.16.odt

3

the husband that she would leave the matrimonial home and ensure that

the marriage between the parties was dissolved. It is pleaded that on

6/2/2005 the wife quarrelled with the husband after alleging that the

husband had an affair with another lady. It is pleaded that the mother of

the wife also called the husband and asked him whether the wife was

ill-treated in the house. It is pleaded that the wife did not permit anybody

in the family to meet Aditya or talk to him. It is pleaded that during the

night hours also the wife used to quarrel with the husband. It is pleaded

that the wife never tried to compromise when there were differences

between the parties on some issues and even when the guests visited the

matrimonial home the wife did not offer them tea or coffee. It is pleaded

that on 6/4/2005 when the mother of the husband had churned the

spices and had asked the wife and Aditya to go to the room on the first

floor, the wife and Aditya said that they suffered a breathing problem due

to the churning of the spices and quarrelled with the mother of the

husband for a long time. It is pleaded that the wife assaulted Aditya

without any reason. It is stated that when Sarika, the sister of the husband

asked the wife not to abuse the mother of the husband in filthy language

and also permit Aditya to talk to her for some time, the wife abused

Sarika, called her a maid and told her that she should not come to the

matrimonial home and touch Aditya. It is pleaded that in June, 2005 the

::: Uploaded on – 25/07/2017 08/08/2017 00:40:45 :::
fca76.16.odt

4

wife switched off her mobile and made a hue and cry that her mobile was

stolen by her father-in-law. It is pleaded that when in September, 2009

the mother of the husband was seriously ill the wife did not take care of

the husband’s mother. It is pleaded that on 11/9/2005, the wife fought

with the husband and his father on the ground that the parties should

reside separately from the joint family. It is pleaded that since the wife

had started beating the husband, the husband left the matrimonial home

at 10:30 p.m. on 11/9/2005 and started residing in a lodge by taking his

belongings to the lodge on 12/9/2005. It is pleaded that when the

husband was transferred to Goa, the brother of the wife named Anand

had been to Goa and in an intoxicated state he had assaulted the husband

on his ears and head. It is pleaded that the wife did not mend her ways

even after the parties separated. It is pleaded that the wife used to fight

with the neighbours, milkman etc. It is pleaded that in 2007 when the

husband was residing at Solapur, his mother Sau. Rama had fallen from

the stairs and one of her legs was fractured. It is stated that though a rod

was inserted by operating on the leg of Sau. Rama and she was admitted

in the hospital for about ten days and was asked to take bed-rest in the

house for a month thereafter, the wife did not bother to meet the mother

of the husband Sau. Rama and also did not talk to her on the telephone. It

is pleaded that when the father of the husband was operated for fistula in

::: Uploaded on – 25/07/2017 08/08/2017 00:40:45 :::
fca76.16.odt

5

the year 2005 and was admitted in the hospital for about seven days, the

wife did not go to the hospital to meet him. It is pleaded that when the

sister of the husband was married at Mahesh Bhawan, Nashik on

12/4/2010 the wife did not attend the marriage though the husband

persistently asked the wife to join the company. It is pleaded that when

the son of the husband was studying in Choughule English Medium

School in Kolhapur without any rhyme or reason the wife had fought with

the teachers and thereafter Aditya was removed from the said school and

was admitted to another school. It is pleaded that in the said school also

the wife had fought with the teachers on 4/2/2011 and hence, Aditya was

removed from that school and was required to be admitted in the third

school. It is pleaded that in the third school also the wife had fought with

the teachers and Aditya was required to be admitted in the fourth school.

It is pleaded that due to the behavior of the wife it is impossible for the

husband to live with the wife under one roof. It is pleaded that in August

2013 the wife had fought with the milkman and when the husband asked

her that she should not fight on such petty matters, the wife fought with

the husband and stayed in her parental home for twenty days. It is

pleaded that the wife came to the matrimonial home only after the

persuation by the husband. It is pleaded that in the circumstances of the

case, a decree of divorce should be granted in favour of the husband.

::: Uploaded on – 25/07/2017 08/08/2017 00:40:45 :::

fca76.16.odt

6

The wife filed the written statement and denied the claim of

the husband. The wife denied all the adverse allegations levelled by the

husband against her. It is pleaded that under the pretext of his service the

husband used to remain out of the house at Nashik for fifteen days at a

stretch. It is pleaded that the husband and his family members had

ill-treated her. It is pleaded that the father and the mother of the husband

as also his sister Sarika had harassed her. It is pleaded that Sarika, the

sister of the husband had forcibly once inserted a toy in the mouth of

Aditya till there was bleeding in his mouth. It is pleaded that since the

husband’s parents and his sisters were ill-treating the wife and also

beating her, she was forced to leave the company of the husband on some

occasions and join the company of her parents. It is pleaded that some

times the parents of the husband did not permit the wife to fondle her son

Aditya. It is pleaded that the wife was once kept out of the house for the

whole night. It is pleaded that on several occasions the wife was driven

out of the house. It is pleaded that the parents of the husband used to

abuse and ill-treat the wife in the presence of outsiders. It is pleaded that

Sarika and Jayshree, the sisters of the husband also used to give insulting

treatment to the wife. It is pleaded that since Jayshree, the sister of the

husband had asked the wife not to attend the marriage, the wife had not

attended the marriage. It is pleaded that when the mother of the husband

::: Uploaded on – 25/07/2017 08/08/2017 00:40:45 :::
fca76.16.odt

7

was hospitalized the wife was not informed about the hospitalization. It is

pleaded that the husband had not attended the marriage ceremony of her

brother. It is pleaded that once the husband and his family members had

abused her and had told her that there was some deformity in her body. It

is pleaded that the wife had not ill-treated the husband but the husband

had ill-treated her. It is pleaded that though the wife desired to meet

Aditya after separation, she was not permitted to do so. The wife sought

for the dismissal of the petition filed by the husband on the ground of

cruelty.

On the aforesaid pleadings of the parties, the Family Court

framed the issues and on an appreciation of the evidence on record, the

Family Court granted a decree of divorce in favour of the husband on the

ground of cruelty. The judgment of the Family Court is challenged by the

wife in this family court appeal.

Shri Joshi, the learned Counsel for the wife submitted that

the Family Court was not justified in granting a decree of divorce on the

ground of cruelty. It is submitted that several incidents on which the

husband had relied, for proving that the wife had treated the husband

with cruelty are not the recent incidents and hence, they cannot be

considered for holding that the wife had treated the husband with cruelty.

It is submitted that the acts of cruelty, even if any, that had taken place

::: Uploaded on – 25/07/2017 08/08/2017 00:40:45 :::
fca76.16.odt

8

after the solemnization of the marriage, could be said to have been

condoned as the husband continued to reside with the wife for several

years thereafter under one roof. The learned Counsel relied on the

judgment of the Hon’ble Supreme Court, reported in AIR 2017 SC 1316

in this regard. It is submitted that the alleged acts on the part of the wife

would depict only the wear and tear in the matrimony and they cannot be

said to be the acts that would constitute cruelty under the provisions of

the Hindu Marriage Act. The learned Counsel relied on the judgment,

reported in 2014 (3) Mh.L.J. 781 to substantiate his submission that

mere trivial irritations, quarrels, normal wear and tear of married life

would not be adequate for granting a decree of divorce on the ground of

cruelty. It is submitted that the acts alleged by the husband against the

wife, even if proved by the husband, cannot constitute cruelty and the

husband is therefore not entitled to a decree of divorce.

Shri Warulkar, the learned Counsel for the husband has

supported the judgment of the Family Court. It is stated that the Family

Court has rightly recorded a finding, on an appreciation of the evidence

tendered by the husband that the husband had become tired of the wife

and it was impossible for the husband to stay with the wife under one

roof. It is stated that the husband had proved that the wife was obstinate,

quarrelsome and was behaving arrogantly with the husband, his parents

::: Uploaded on – 25/07/2017 08/08/2017 00:40:45 :::
fca76.16.odt

9

and his sisters and was insulting them. It is stated that the Family Court

has held that the husband has proved that the wife was compelling the

husband to leave his old parents and reside in a nuclear family. It is

submitted that the Family Court has arrived at a finding that the wife had

not looked after the old parents of the husband and had not gone to see

them in the hospital. It is stated that the Family Court has held and rightly

so that the counter allegations made by the wife against the husband and

his family members were not proved by the wife. It is submitted that since

the Family Court has rightly granted a decree of divorce in favour of the

husband, the family court appeal is liable to be dismissed.

On hearing the learned Counsel for the parties and on a

perusal of the record and proceedings, it appears that the following points

arise for determination in this family court appeal :-

(1) Whether the husband has proved that
the wife has treated him with cruelty ?
(2) Whether the husband is entitled to a
decree of divorce on the ground of cruelty ?
(3) What order ?

To prove his case, the husband has examined himself. The

husband has reiterated the facts pleaded by him in the petition, in his

evidence on affidavit. The husband was cross-examined on behalf of the

wife. The husband denied in his cross-examination that his parents used

::: Uploaded on – 25/07/2017 08/08/2017 00:40:45 :::
fca76.16.odt

10

to fight with the wife on petty matters. The husband denied the

suggestion that he had locked his flat on 1/4/2014 when the wife had

come to Kolhapur. The husband denied that on 1/4/2014 when the wife

called him on the telephone he had abused her and had threatened to kill

her. The husband denied the suggestion that he had left Kolhapur after

locking the house and therefore the wife was forced to sit outside the flat

for the whole night. The husband denied that he and his father had filed a

false report against the wife in the police station and had levelled false

allegations against her. The husband denied that the wife had on several

occasions called the husband so that she could reside with him in the

matrimonial home. The husband denied that he had filed false case

against the wife for a decree of divorce.

Apart from the husband, the husband has examined his

uncle Shri Ganesh Dhore. Ganesh stated in his evidence that the wife used

to behave very badly with the husband and she did not like the relatives

of the husband to come to the matrimonial home. Ganesh stated in his

evidence that the wife did not permit her in-laws to come to the

matrimonial home. He stated in his evidence that the husband had told

him on telephone on 30/11/2013 that the wife should mend her ways

and start residing with the husband under one roof. Ganesh stated that

though he asked the wife to do so, the wife had told Ganesh that she does

::: Uploaded on – 25/07/2017 08/08/2017 00:40:45 :::
fca76.16.odt

11

not wish to live with the husband and wishes to secure employment and

money. Ganesh stated that when he had been to the house of the aunt of

the wife on 29/12/2013 the wife drove Ganesh and the persons

accompanying him out of the house. Ganesh was cross-examined on

behalf of the wife. He denied every suggestion given by the wife in the

cross-examination.

The husband also examined Shri Yogesh Bhatkar. Yogesh

reiterated the allegations that were made by the husband against the

conduct and behavior of the wife. Unfortunately, Yogesh Bhatkar was not

cross-examined on behalf of the wife and his evidence remained

unchallenged.

The wife filed her evidence on affidavit. The wife reiterated

the allegations made by her against the husband and his family members

in the evidence on affidavit. In her evidence on affidavit, the wife stated

that she was ill-treated by the husband and his family members and her

life was made miserable by the parents and the sisters of the husband.

The wife was cross-examined on behalf of the husband. The wife admitted

in her cross-examination that her husband had treated her well at Nagpur

and her relations with him during that period were cordial and therefore,

she had no complaints against him. The wife stated that she was not

aware whether her father-in-law had complained to her father regarding

::: Uploaded on – 25/07/2017 08/08/2017 00:40:45 :::
fca76.16.odt

12

her conduct and that she was not behaving properly with the family

members. The wife denied the suggestion that due to the conduct of the

wife, her husband was thrown out of the matrimonial home, along with

her. The wife however admitted that in 2005, the father of the husband

had thrown them out of his house. The wife admitted that even in Goa

she did not have any occasion to lodge a report against the husband and

his in-laws. The wife denied that the husband had telephoned to her

parents from Goa and had complained about her behaviour, as a result of

which her brother had come to Goa. The wife however admitted that

there were disputes between the husband and her brother because of her

behaviour while they were residing at Goa. The wife stated that she was

not aware that the husband had lodged a report with Panaji Police against

the wife and her brother. The wife admitted that she had called a meeting

in Pune in December, 2013 for resolving the disputes. The wife denied

that after a notice was received by her, the parties have filed cases against

each other. The wife admitted that her mother-in-law had suffered an

accident in 2007 due to which she was admitted in the hospital at Nashik.

The wife stated that she was however not aware whether her father-in-

law was also admitted in the hospital at Nashik. She denied the

suggestion that she had not gone to the hospital to meet her in-laws. The

wife denied that she had assaulted the teachers in Ford International

::: Uploaded on – 25/07/2017 08/08/2017 00:40:45 :::
fca76.16.odt

13

School. The wife however admitted that five teachers from the said

schools had written to the husband and had asked him to give her

psychiatric treatment. The wife stated that the majority of the teachers in

the schools were supporting her. The wife denied that her son was driven

out of the schools because of her bad behaviour. The wife admitted that

the husband had never objected to the wife’s continuing her education or

taking up the job. The wife further admitted that the husband had taken

care of her needs when they resided together. The wife stated that she

was not aware whether the husband and his father had filed reports

against her. The wife stated that she had not consented to a decree of

divorce by consent and that her signature on the divorce petition filed

before the Court at Kolhapur was secured forcibly. The wife however

admitted that she had signed on the petition for divorce by mutual

consent in the Court itself. The wife admitted that she had not attended

the marriage of her sister-in-law. The wife however denied the suggestion

that she had not attended any of the functions after the marriage of her

sister-in-law.

On an appreciation of the evidence tendered by the parties

on record, the Family Court held that the husband had proved on the

basis of his evidence and the evidence of his uncle and Yogesh Bhatkar,

the friend of the husband whose evidence has gone unchallenged that the

::: Uploaded on – 25/07/2017 08/08/2017 00:40:45 :::
fca76.16.odt

14

wife had treated the husband with cruelty. The Family Court held that on

an appreciation of the evidence tendered by the husband and his

witnesses, it could be gathered that the wife always wanted to reside

separately and away from the joint family and her in-laws. It is found

from the evidence tendered by the husband, his relative and his friend

that the wife was behaving arrogantly with the husband and quarrelling

with her in-laws without any rhyme or reason. It is observed by the

Family Court on the basis of the evidence on record that when the parties

were at Goa, the brother of the wife had assaulted the husband under the

influence of liquor, as a result of which the husband had suffered injuries

and had to lodge a report in the police station against the brother of the

wife. It was apparent from the evidence of the husband that the

quarrel between the husband and the brother of the wife took place

because of the wife. It is found that the husband had been successful in

proving that the wife had not attended the marriage of the real sister of

the husband by name Jayshree that was performed on 12/4/2010. The

Family Court held that the case of the wife in her written statement that

she did not attend the marriage as Jayshree had told her not to attend the

same at the time of her engagement was not correct as the wife had stated

in her evidence on affidavit that she had not attended the marriage of

Jayshree because the husband had not taken her to the said marriage. The

::: Uploaded on – 25/07/2017 08/08/2017 00:40:45 :::
fca76.16.odt

15

Family Court found that the wife was changing her stand from time to

time and it was therefore not possible to believe the reason put forth by

the wife, for not attending the marriage of the sister of the husband. The

Family Court has held and rightly so that it was not possible to believe the

wife as the wife had taken two different stands for not attending the

marriage of Jayshree, one being that Jayshree had not permitted the wife

to attend the marriage and the second being that the husband had not

taken her to the marriage. The Family Court then found that the husband

was successful in proving that the wife was not only quarrelling with the

husband and his family members but was also quarrelling with the

teachers in the schools. The wife had admitted in her cross-examination

that five teachers in the school where Aditya was studying had given in

writing to the husband that the wife should be treated by a psychiatrist.

The said admission of the wife would clearly show that her conduct in the

schools was such that five teachers in the school had to write to the

husband that the wife should be treated by a psychiatrist, as she was

behaving very badly with the school teachers. It is found from

Exhibit – 43, which is the letter written by the teachers to the husband

that the wife had abused the teacher, Monali, called her bitch, pulled her

hair and kicked her in the school premises. From Exhibit – 43 it could be

seen that as per the teachers that had complained to the husband against

::: Uploaded on – 25/07/2017 08/08/2017 00:40:45 :::
fca76.16.odt

16

the wife, the wife had behaved in an unruly manner only because the wife

was not happy with the marks awarded to her son for certain answers. It

was further written in the letter at Exhibit – 43 by the teachers that the

wife had alleged that the teachers used to do time-pass by calling the

fathers of the children and not their mothers. Though the wife had denied

that she was fighting with the teachers, the admission of the wife in her

cross-examination that five teachers from the school had complained to

the husband in writing about her behaviour and asked that she should be

treated by a psychiatrist, clearly shows that the case of the husband that

the wife had the habit of fighting with the teachers and abusing them is

proved. It is necessary to note that though Yogesh Bhatkar had clearly

stated about the quarrelsome nature of the wife and about the

ill-treatment meted out by her to her husband and his family members,

Yogesh has not been cross-examined on behalf of the wife. Since the

evidence of Yogesh remained unchallenged the Family Court has rightly

relied on the unchallenged evidence of Yogesh in his examination-in-chief.

From the evidence of Yogesh and the husband, the Family Court came to

a conclusion that the husband had been successful in proving that the

wife did not wish to reside with her in-laws and always pestered the

husband that he should stay away from the joint family. The evidence of

Ganesh Dhore has also supported the case of the husband. The evidence

::: Uploaded on – 25/07/2017 08/08/2017 00:40:45 :::
fca76.16.odt

17

on record clearly establishes that though a meeting had taken place in

December, 2013 to resolve the disputes, the wife refused to return to the

matrimonial home. From the admissions of the wife in her cross-

examination, it appears that the allegations made by the wife against the

husband and his family members are untrue as she has admitted in her

cross-examination that the husband had taken care of her needs, when

they resided together and there was no problem when the parties

cohabited together in the matrimonial home. It was also noted by the

Family Court that the wife had signed on the petition for a decree of

divorce by consent but had later withdrawn herself from the said

proceedings by falsely stating that her signature on the petition for

divorce by mutual consent was secured forcibly. Since the wife had

admitted in her cross-examination that she had signed the petition for a

decree of divorce by mutual consent in the Court itself, the case of the

wife that she was forcibly made to sign on the petition for a divorce by

mutual consent is false and baseless. Since the husband has proved the

allegations levelled by him against the wife, the Family Court has rightly

held that the husband was entitled to a decree of divorce on the ground of

cruelty. We do not find any merit in the submission made on behalf of the

wife that the allegations levelled by the husband against the wife, even if

they are said to be proved would only depict the normal wear and tear, in

::: Uploaded on – 25/07/2017 08/08/2017 00:40:45 :::
fca76.16.odt

18

the matrimony. The allegations levelled by the husband against the wife

in the petition that stand proved, cannot be said to be the acts that would

only reflect the normal wear and tear in the matrimony. The Family Court

has rightly held that if a person faces harassment of any kind, may be a

physical or mental, there comes a point in such person’s life when he

decides that enough is enough. It cannot be said in the circumstances of

the case that the husband cannot be permitted to seek a divorce on the

basis of the incidents that had taken place in the earlier part of the

matrimony. In our view, all the incidents that had taken place from the

date of the marriage of the parties and that show that the wife had

treated the husband with cruelty, could have been looked into while

considering whether the husband was entitled to a decree of divorce on

the ground of cruelty. It cannot be said that merely because the husband

continued to stay with the wife for quite some time despite her

harassment and ill-treatment, the acts of cruelty on the part of the wife

for the earlier period of the matrimony have been condoned. As rightly

held by the Family Court, there can be a point in a person’s life who faces

harassment, when the person may decide that it is not possible for that

person to stay with the other person, who inflicts cruelty, under one roof.

The judgment, reported in AIR 2017 SC 1316 cannot be made applicable

to the case in hand. The judgment, reported in 2014 (3) Mh.L.J. 781

::: Uploaded on – 25/07/2017 08/08/2017 00:40:45 :::
fca76.16.odt

19

would also not apply to the facts of this case as in this case, the

allegations against the wife do not relate to mere trivial irritations,

quarrels and normal wear and tear of married life. The allegations proved

by the husband against the wife in this case are grave and serious and the

proved allegations, show that the husband was treated by the wife with

cruelty.

Since the judgment of the Family Court is just and proper,

we dismiss the Family Court Appeal with no order as to costs.

JUDGE JUDGE

Wadkar

::: Uploaded on – 25/07/2017 08/08/2017 00:40:45 :::

Leave a Comment

Your email address will not be published. Required fields are marked *