Shantaram Tukaram Sarfare vs Sandhya Shantaram Sarfare on 12 January, 2018

1 FCA 94-10 Judgment.doc-1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.94 OF 2010

Shantaram Tukaram Sarfare. ]
Aged – 62 years, Occupation – Retired, ]
R/A – Sheetal CHS Ltd., Flat No.C-16/14, ]
3rd Floor, Nagari Niwara Parishad, ]
General Vaidya Marg, Goregaon (East), ]
Mumbai – 400 065. ] … Appellant

Versus

Sandhya Shantaram Sarfare. ]
Aged – 56 years, Occupation – Service, ]
R/A – Flat No.108, 1st Floor, Maheshwari ]
Ganesh Kunj CHS Ltd., Kondivita, J. B. Nagar, ]
Andheri (East), Mumbai – 400 059. ] … Respondent

Mr. Chetan Akerkar for Appellant.
Mr. R. V. Sankpal for Respondent.
Mr. Shantaram Tukaram Sarfare, Appellant, present in person.

CORAM :- K. K. TATED
SARANG V. KOTWAL, JJ.

RESERVED ON :- 05 JANUARY, 2018
PRONOUNCED ON :- 12 JANUARY, 2018

JUDGMENT (PER : SARANG V. KOTWAL, J.) :-

1. The present Appeal is preferred by the Appellant against
the Judgment and Order dated 07/05/2010 passed by the learned
Judge of Family Court No.4, Mumbai, whereby the Marriage Petition

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No.A-1355 of 2006 filed by the Appellant for divorce under Section
13(1)(ia) of the Hindu Marriage Act, 1955 was dismissed.

2. It is the case of the Appellant, in the aforementioned
petition filed by him, before the Family Court that, he got married
with the respondent according to the Hindu Vedic rites and rituals on
29/05/1972 at V.T., Mumbai. It is further mentioned in the said
petition that after their marriage, the couple stayed together at
Andheri. Initially, the relations between them were cordial and
subsequently because of the Respondent’s nature, their relations
became strained. The Appellant has pleaded in the petition that the
Respondent lodged frivolous and vexatious complaints at the police
station and also in the Courts. The Respondent had also involved the
brothers and sisters of the Appellant in a criminal case and the
Appellant has further mentioned that those criminal cases have
resulted in acquittal. It is further his case that, the Respondent
resorted to sending complaints to the Appellant’s employer and
maligned his image. The Appellant has further pleaded that the
Respondent had created hurdles in his increment, benefits and
privileges related to his job. Thus, the Respondent caused continuous
harassment to the Appellant. The Appellant had further pleaded that
the Respondent is occupying the residence which was purchased by
him. It is his case that the Appellant always treated her with love,
affection but there was no reciprocation from the Respondent and, in
fact, he was continuously humiliated and ultimately the Appellant had
to leave his own matrimonial home and live separately. Apart from

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the criminal proceedings, the Respondent had lodged various civil
proceedings and, in fact, the Respondent herself had filed a petition
for divorce vide Petition No.B-149 of 1996. Thus according to him, he
was left with no option but to file the petition for divorce on the
ground of cruelty. The Appellant filed the Judgments and Orders in
the past proceedings in his petition for divorce.

3. The Respondent, on service, entered her appearance and
filed her Written Statement. Besides denying all the averments in the
petition, in her Written Statement, the Respondent stated that all the
complaints which were filed by her were genuine and in one of the
cases, the order of acquittal is challenged before this Court and is
pending its final disposal. It is further her case that she had lost her
job and had no financial support. According to the Respondent, she
herself, with the help of her family and colleagues, had purchased the
premises at Andheri. The Respondent has further stated in her
Written Statement that the Appellant was staying in adultery and
therefore she had filed a Petition for divorce. It is further her case
that the Appellant had pleaded for reconciliation and therefore, she
did not take steps in the said petition and therefore the petition was
dismissed for non-prosecution. She has further stated that she had
filed petition for maintenance and orders were passed in her favour
for maintenance. The Respondent has mentioned some instances
wherein the Appellant had assaulted her after consuming alcohol.
The Respondent has alleged in her Written Statement that the
Appellant had an affair with one lady since 1993 and since the

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Respondent had objected to the said relationship, she was ill-treated
by the Appellant. It is her case that the Appellant himself had
deserted her without reasonable cause and excuse and that he was
taking advantage of his own wrong and that the present petition for
divorce was filed belatedly, almost after 10 years, and therefore the
petition should be dismissed.

4. During the course of the proceedings before the Family
Court, the Appellant tendered his Affidavit in lieu of his examination-
in-chief and was cross-examined by the Respondent. On the other
hand, the Respondent also gave her evidence and was cross-examined
by the Appellant. After recording the evidence and hearing the
arguments, the learned Judge was pleased to dismiss the petition for
divorce filed by the Appellant with the finding that the Appellant had
failed to prove that he was subjected to cruelty at the hands of the
Respondent and therefore, the Appellant was not held to be entitled
for a decree of divorce and ultimately the petition was dismissed.

5. We have heard Mr. Chetan Akerkar, the learned Counsel
for the Appellant and Mr. R. V. Sankpal, the learned Counsel for the
Respondent. With their assistance, we have gone through the
evidence and the impugned Judgment. After considering their
submissions, following points arise for our determination. The said
points and the findings thereon are as under :

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SR. POINTS FINDINGS
NO.
1 Whether the appellant has made out the Yes
case for setting aside the impugned
Judgment of the learned Judge of the
Family Court ?
2 Whether the Appellant has proved that he Yes
was treated with cruelty by the
Respondent ?
3 Whether the Appellant is entitled for the Yes
Decree of divorce ?
4 What Order ? As per the Final Order

6. Mr. Chetan Akerkar, the learned Counsel for the
Appellant, submitted that the impugned Judgment is very cryptic and
the learned Judge has not even considered and has not discussed the
evidence tendered by both the parties. The learned Judge has not
considered the import of the decisions in various proceedings between
the parties. The learned Judge has wrongly observed that the
Appellant has not specified that the contents of the complaints against
him were totally false and that the Appellant had not specified the real
facts in respect those complaints. Mr. Akerkar further submitted that
a number litigations filed by the Respondent, either on her own or at
her instance, show that there was continuous harassment and
treatment of cruelty to the Appellant and the Appellant’s innocence is
vindicated by his acquittal in the criminal proceedings. Even the
family members of the Appellant were not spared and were dragged in
a criminal prosecution. He further submitted that the divorce petition
filed by the Respondent was not pursued by her and was dismissed.

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The said order was not challenged neither any efforts were made by
the Respondent for getting the said order set aside and therefore, the
said order had attained finality. He further submitted that the
allegations of adultery made by the Respondent were unsubstantiated
and such allegations, by themselves, amounted to cruelty. He further
submitted that since the Appellant was a public servant, continuous
complaints to his employer were affecting his career prospects and
were causing mental harassment to him. He further submitted that
the allegations of adultery could not have been gone into, particularly
when the lady in question with whom the Appellant was residing, was
not made a party in these proceedings and no findings could have
been recorded against her or for that matter, against the Appellant in
that regard. He further submitted that the electoral roll at Exh.31
though mentions the name of another lady staying at the said address,
and bearing the name of the present Appellant as her middle name, it
does not mean that the evidence is trustworthy and there is no
evidence to show as to how that entry came into existence. Mr.
Akerkar relied on the observations of the Hon’ble Supreme Court in
the case of Naveen Kohli Vs. Neelu Kolhi1 wherein the Hon’ble
Supreme Court has explained as to what facts would constitute cruelty
and has observed that the repercussions of all the criminal and other
proceedings between the parties should be seen in proper perspective.
Mr. Akerkar lastly submitted that on humanitarian ground, the
Appellant is willing to continue paying the monthly maintenance
allowance which he has been paying and that he shall not raise any

1 I (2006) DMC 489 (SC)

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dispute in respect of the flat where the Respondent is residing at
present.

7. As against these submissions, Mr. R. V. Sankpal, the
learned Counsel for the Respondent, submitted that the Appellant is in
relationship with another lady since 1993 causing cruelty to the
Respondent. He further submitted that the Appellant did not
maintain the Respondent properly and always treated her with cruelty
which is clear from the criminal proceeding instituted by the
Respondent. He has further submitted that though the Appellant is
acquitted in those criminal proceedings, in one of the proceedings, the
Appeal is admitted and is pending before this Court. He further
submitted that the Appellant was acquitted as he was given benefit of
doubt which does not mean that the Respondent was not treated with
cruelty as alleged by her. He further submitted that the Voter’s List
Exh.31 clearly shows that the Appellant was residing with another
lady and that lady was being treated as his wife and thus he was living
in adultery which amounted to cruelty to the Respondent and
therefore the Appellant does not deserve the grant of Decree of
divorce in his favour on the ground of cruelty by the Respondent. He
further submitted that since 1996, the Appellant and the Respondent
are residing separately and the reconciliation is not possible and the
marriage is irretrievably broken. He further submitted that though
there is no possibility of reconciliation, still the Respondent is
opposing the grant of Decree of divorce, firstly, because she has not
treated him with cruelty. Secondly, the Appellant himself had treated

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her with cruelty and thirdly, she is justifiably getting medical
treatment as she has the status of the Appellant’s wife and the
Appellant was employed with the Railways. He further submitted that
the Respondent is not keeping good health and therefore not being
divorced, has its own importance to her.

8. We have considered the rival submissions. The
compilation of the Judgments and the Orders passed in the previous
proceedings showed that the following proceedings arose between the
parties.

(i) Marriage Petition No.B-149 of 1996 was filed by the
Respondent against the Appellant in the Family Court at Bandra for
Decree of divorce. She had alleged in the said petition that the
Appellant had admitted to her that, since about two years prior to
1995, he had performed marriage with another lady and the Appellant
was residing with her. She had alleged that the Appellant had
assaulted her mercilessly causing injuries and she had stated that she
had no support and needed maintenance. This petition was filed in
December 1995. However, she did not take any steps to serve the
Appellant and ultimately, the petition was dismissed by the order
dated 05/06/1996.

(ii) The Respondent had filed a police complaint against the
Appellant under
Sections 498A and 494 of the IPC which resulted in a
police case vide C.C.No.2/P/1997 which was tried before the

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Metropolitan Magistrate, 10th Court, Andheri, Mumbai and vide the
Judgment and Order dated 14/07/2004, the Appellant was acquitted.
The said Judgment and Order is challenged by the Respondent before
this Court and the Appeal was admitted and is pending final decision.

(iii) C.C.No.237/SW/2005 was instituted by the Respondent
against the Appellant, his two brothers and a married sister, by way of
a private complaint under
Sections 323, 504 and 506 (II) of the IPC.
At the conclusion of the trial, all these accused were acquitted by the
Metropolitan Magistrate, 45th Court, Kurla, Mumbai, vide his
Judgment and Order dated 30/01/2006. The said Judgment and
Order was not challenged further and has attained finality.

(iv) Petition No.E-131 of 1997 was filed by the Respondent
before the Judge, Family Court No.4, Mumbai, claiming maintenance
under
Section 125 of the Cr.P.C. from the Appellant and it appears
that ultimately, the maintenance of Rs.1,200/- per month was granted
to her in this proceeding.

(v) The Respondent had filed Petition No.C-2 of 2002 before
the Judge, Family Court No.4, Mumbai, for maintenance under the
Hindu Adoption and
Maintenance Act, 1956 and vide the Judgment
and Decree dated 30/02/2003, the Respondent was granted
maintenance of Rs.3,000/- per month inclusive of the maintenance of
Rs.1,200/- per month granted under
Section 125 of the Cr.P.C.

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9. Besides the above documentary evidence, the Appellant
tendered his Affidavit in the form of examination-in-chief. In the said
Affidavit, all the averments in his petition were repeated. In his cross-
examined conducted on behalf of the Respondent, the Appellant
denied that he was living in adultery with another lady. He denied
the incident where the Respondent has alleged that he had assaulted
her under influence of liquor. He has further stated in his cross-
examination that he was arrested and was in custody for 8 days before
being released on bail in connection with the criminal complaint filed
by the Respondent in the MIDC Police Station. Even the Respondent
tendered her Affidavit in lieu of examination-in-chief where she
repeated the averments in her Written Statement. She also produced
the case-papers from the Cooper Hospital and a certified copy of her
FIR. She claimed that because of the Appellant’s adulterous and cruel
attitude, she has suffered mentally as well as physically. She tendered
Voter’s List at Exh.31 wherein the name of the lady was mentioned
showing the Appellant’s name as her middle name and showing the
same address as that of the Appellant. In her cross-examination, she
had admitted that she was blaming the Appellant for his incapacity
which resulted in the couple remaining childless.

10. Having gone through the entire evidence, we find that the
Respondent has filed one private criminal complaint and one police
case against the Appellant. In the private complaint, even the
brothers and sister of the Appellant were made accused and in the
police case, the Appellant had to spend 8 days in custody.

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Significantly, both these cases have resulted in acquittal. Though in
respect of the case under
Section 498A of the IPC, the Appeal is
pending before this Court, the fact remains that the competent Trial
Courts have found that the Appellant or his brothers and sister have
not committed the offences alleged by the Respondent. These facts
themselves show that the Appellant has suffered harassment and
ignominy of having been taken in custody for 8 days. That certainly
would amount to cruelty, particularly when the allegations were
proved to be false and unsubstantiated. The dismissal of the earlier
petition for divorce filed by the Respondent has its own significance.
In the said petition, the Respondent had already made allegations in
respect of the adulterous life of the Appellant and his assaulting the
Respondent under influence of liquor. The Respondent has not
pursued the said petition and the same was dismissed. Thereafter, the
Respondent has not taken any steps for setting aside the said order
and hence that order has attained finality, meaning thereby the
Respondent was not entitled for divorce on the ground of cruelty as
the Appellant was residing with another woman in adultery and was
assaulting her under influence of liquor. The Appellant was acquitted
from both the criminal cases. Thus, all these 3 proceedings show that
the Respondent had made false allegations against the Appellant.

11. As far as the Voter's list at Exh.31 is concerned, Mr.
Akerkar has rightly submitted that to make any allegation and for
recording any finding thereon, it was necessary that the lady in
question should have been made a party in the proceeding before the

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Family Court. In her absence, no finding could have been recorded
against her and consequently against the present Appellant.
Moreover, the Respondent has not brought on record as to how those
entires came into existence. None from the concerned authority
preparing the electoral roll was examined. None of the neighbours of
the Appellant was examined to prove his living with that lady. In
these circumstances, we are not willing to accept that the Respondent
has led sufficient evidence to enable the Court to hold that the
Appellant was living in adultery with another woman.

12. Mr. Sankpal, the learned Counsel for the Respondent, has
submitted that the Respondent was opposing the grant of a Decree of
divorce as mentioned earlier. The Respondent's status as the wife of
the Appellant was important for her in her old age for various
benefits. We are of the opinion that this cannot be a ground or
circumstance which should be taken into consideration while deciding
this Appeal. The Appeal has to be decided on the basis of the
evidence led by the parties and its consideration in accordance with
law. The ground of sympathy cannot be a consideration for deciding
the Appeal.

13. We find that the learned Judge has erred in observing that
the Appellant should have specified whether the contents of the
complaint were totally false and that he should have specified as to
what were the real facts in respect of which the complaints were
made. The Appellant has pleaded in his Petition as well as mentioned

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in his evidence that the Respondent had lodged frivolous and
vexatious complaints at the police station and also in the Court. Since
it is his case that the complaints were false, he could not have
elaborated about the incidents which were false. Therefore, the
observation of the learned Judge in that regard is not correct.

14. Mr. Akerkar, the learned Counsel for the Appellant, rightly
relied on the decision of Naveen Kohli (supra). The Hon'ble Supreme
Court has held in the said Judgment that it was difficult to lay down a
precise definition or to give exhaustive description of the
circumstances, which would constitute cruelty. It must be of the type
as to satisfy the conscience of the Court that the relationship between
the parties had deteriorated to such extent due to the conduct of the
other spouse that it would be impossible for them to live together
without mental agony, torture or distress, to entitle the complaining
spouse to secure divorce. The Hon'ble Supreme Court has further
observed that the Courts should consider the repercussions, consequences,
impact and ramifications of all the criminal and other proceedings
initiated by the parties against each other in proper perspective.

15. Thus, applying this ratio to the present facts, we are of the
opinion that because of the unreasonable criminal proceedings
initiated by or at the instance of the Respondent, the Appellant had
suffered tremendous mental agony and it was not possible for him to
cohabit with the Respondent. Her continuous complaints to the
Appellant's employer also jeopardized his prospects in his

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employment. Since the cross-examination of the Respondent shows
that she was blaming the Appellant for her not being able to conceive,
that, also amounts to cruelty meted out to the Appellant.

16. Thus, we are of the considered opinion that the Appellant
has made out sufficient case for grant of divorce on the ground of
cruelty. The learned Trial Judge has not considered any of these
factors in proper perspective and therefore, the said Judgment and
Order is required to be set aside.

17. Mr. Akerkar, the learned Counsel for the Appellant, on
the instructions of the Appellant who was present in the Court, has
fairly stated that the Appellant would continue paying the
maintenance to the Respondent, which he is paying at present.
Mr.Akerkar further stated that the Appellant would not raise any
dispute in respect of the flat i.e. Flat 108, 1 st Floor, Maheshwari
Ganesh Kunj CHS Ltd., Kondivita, J. B. Nagar, Andheri (East),
Mumbai - 400 059 occupied by the Respondent at present, during her
lifetime. Hence the following order.

                                                          ORDER
(i) The Appeal is allowed.
(ii) The Judgment and Order dated 07/05/2010 passed
by the learned Judge of Family Court No.4,
Mumbai, is set aside.
(iii) The marriage between the Appellant and the

Respondent is dissolved under Section 13(1)(ia) of
the Hindu Marriage Act, 1955.

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(iv) The Appellant shall continue to pay the maintenance

to the Respondent, which he is paying presently.

(v) The Appellant shall not raise any dispute against
the Respondent in respect of the flat occupied by
the respondent which is Flat 108, 1st Floor,
Maheshwari Ganesh Kunj CHS Ltd., Kondivita, J. B.
Nagar, Andheri (East), Mumbai - 400 059, during
her lifetime.

(vi)                Decree be drawn accordingly.

(SARANG V. KOTWAL, J.) (K. K. TATED, J.)

18. At this stage, the learned Counsel appearing for the
Respondent - Wife applied for stay of the operation and
implementation of this Order.

19. Considering the facts and circumstances of the present
case, the Order is stayed for a period of 12 weeks.

(SARANG V. KOTWAL, J.)                                                                    (K. K. TATED, J.)

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