* 1/7 * FCA-190-2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.190 OF 2017
Mr. Mahesh Yashwant Ayare,
Indian Inhabitant, Hindu
Age-36 years, Occ: Business,
Residing at-: A/304, Shreeji Vihar,
Link Road, Vasant Nagari,
Vasai (East),
Thane-401209 ……Appellant
(Org. Respondent)
V/s.
Mrs. Megha Mahesh Ayare
Indian Inhabitant, Hindu,
Age:28 years, Occ: Service,
Presently residing at:-2/4, Sankalp
Siddhi Chawl, Mahatma Kabir Nagar,
M.C.Chagla Marg, Andheri (East),
Mumbai- 400 099
And
Permanent Residential Address
at:- A/304, Shreeji Vihar, Link Road,
Vasant Nagri, Vasai (East)
Thane-401209 …..Respondent
(Original Petitioner)
Mrs. Ketaki Datar, Advocate for Appellant.
Mr. P.G.Sawant i/by Shri V.V.Rankhambe, Advocates for
Respondent.
CORAM : R.M.SAVANT
SANDEEP K. SHINDE, JJ.
DATE : 23RD FEBRUARY, 2018.
JUDGMENT : [Per Shri Sandeep K. Shinde, J.]
Shivgan
::: Uploaded on – 28/02/2018 01/03/2018 01:12:39 :::
* 2/7 * FCA-190-2017.doc
This Appeal under Section 19 of the Family Courts Act,
1984 is preferred by the Appellant-Husband against the judgment
and order dated 19.7.2017 passed by the learned Judge, Family
Court, Bandra whereby the Petition for divorce filed by the wife was
allowed and the marriage between the Appellant-Husband and the
Respondent-Wife solemnised on 18.5.2005 was dissolved. The
learned Judge directed the Appellant-Husband to pay Rs.5,000/-
per month towards the maintenance of the son till he becomes
major.
2 Respondent-Wife presented the Petition before the
Family Court, Bandra for dissolution of marriage on the ground that
she was treated by the Appellant-Husband with cruelty. It is her
case that the sustained unjustifiable conduct of the husband
coupled with the physical violence and persistent harassment on
account of alleged extra-marital relationship had left her with no
alternative but to seek dissolution of the marriage.
3 It appears from the record that the husband did not
cross-examine his wife though enough opportunity was afforded to
him by setting aside the ‘No Cross’ order dated 19.11.2014 passed
by the learned Judge, Family Court, Bandra. It appears that the
husband had intentionally avoided to cross-examine his wife and,
therefore, finally on 5.2.2016, the learned Judge Family Court,
Shivgan
::: Uploaded on – 28/02/2018 01/03/2018 01:12:39 :::
* 3/7 * FCA-190-2017.doc
Bandra proceeded with the case, dissolved the marriage by the
judgment and order dated 19.7.2017 but till then husband did not
request the trial Court to afford the opportunity to cross-examine
his wife.
4 That before dealing with the grounds urged in the
Appeal, it may also be stated that one of the grounds is, that since
he could not cross-examine his wife, parties may be relegated to the
trial court by affording an opportunity to the husband to cross-
examine his wife.
5 We have gone through the judgment and pleadings of
the parties minutely. Record shows, wife had filed her affidavit- in-
lieu of evidence, on 9.9.2014 and the husband was called upon to
cross-examine her. He did not cross-examine and, therefore, the
learned Judge was pleased to pass a ‘No Cross’ order on 19.11.2014.
It appears that the said order was set aside but even thereafter, the
husband did not cross-examine the wife and as such, the learned
Judge proceeded with the Petition by passing the ‘No Cross’ order
on 5.2.2016. In the given set of facts, we do not see any reason to
hold that the husband was prevented by any unavoidable
circumstances from cross-examining his wife and, therefore, we
decline to relegate the parties to the trial Court by affording one
more opportunity to the husband to cross-examine his wife. We,
therefore, reject this ground.
Shivgan
::: Uploaded on – 28/02/2018 01/03/2018 01:12:39 :::
* 4/7 * FCA-190-2017.doc
6 It may be stated, that in the course of the hearing of
the above Appeal, the learned counsel appearing for the
Respondent-Wife has placed on record the judgment and order
dated 24.7.2017 passed by the Assistant Sessions Judge No.1,
Vasai in Sessions Case No.38 of 2014. We have taken the said
judgment on record and perused the same.
7 This Sessions Case was arising out of the Crime No.I-
506 of 2013 for the offences punishable under Sections 498A, 307
and 342 of IPC registered by the wife against the Appellant-
Husband and he was tried for the same. It is disclosed in the said
judgment that wife was examined as Prosecution Witness No.1
wherein she had narrated as to how her husband had physically
assaulted her recurringly and brought on record circumstances to
hold that she was subjected to physical assault since her marriage
till 15.8.2013, a day on which crime was registered against
Appellant-Husband. It appears from the judgment in the said
Sessions Case, that the Appellant-Husband while cross-examining
his wife had suggested, about her alleged extra-marital relationship
with ‘X’. It appears from paragraph 20 of the said judgment that
Husband had suggested her in terms; “that packet of condoms was
found near bed and that “Mr.’X’ with whom his wife allegedly had
relationship had visited the house in his absence.”
Besides, it appears that the Husband had filed an affidavit in
Shivgan
::: Uploaded on – 28/02/2018 01/03/2018 01:12:39 :::
* 5/7 * FCA-190-2017.doclieu of his evidence in the Family Court and made scandalous,
vulgar, derogatory, defamatory and baseless allegations against his
wife. The said allegations relate to her alleged illicit relationship
with Mr.’X’. The learned trial Judge in paragraph 12 of his
judgment has dealt with such unfounded allegations which were not
forming the part of the Written Statement. Thus, after perusing the
pleadings of the parties and the evidence led in the trial Court as
well as after perusing the judgment in Sessions Case No.38 of 2014,
we see no reason to interfere with the impugned judgment and
order dated 19.7.2017 passed by the Family Court, Bandra for the
reasons which are more than one.
8 The Respondent-Wife in her evidence before the Family
Court, Bandra has given a complete account of assaults and
physical torture caused to her at the hands of her husband on
different occasions soon after her marriage. She has elaborately
stated various incidents which had taken place on the public road
where she was assaulted by her husband and dragged to the
residence mercilessly. She has stated about the incident of January,
2011, April, 2011, April, 2012. She has also stated about the
intervention by police and her hospitalisation in January, 2011
after assault. In evidence, she would say that on 15.8.2013, she was
brutally assaulted by the husband and had sustained as many as
ten injuries. She was admitted in the hospital nearly for ten days.
Shivgan
::: Uploaded on – 28/02/2018 01/03/2018 01:12:39 :::
* 6/7 * FCA-190-2017.doc
This incident was reported to the police and the offence punishable
under Sections 307 and 498A of the IPC was registered against the
husband. We cannot ignore the fact that by judgment and order
dated 24.7.2017, the husband came to be convicted for the offences
punishable under Section 498A of IPC and was sentenced to
undergo RI for two years. The husband is also convicted for the
offence punishable under Section 323 of the IPC and sentenced to
undergo RI for one year.
9 The learned counsel appearing for the Appellant-
Husband submitted that the Appeal is preferred against the
judgment and order passed in the Sessions Case No.38 of 2014 and,
therefore, the findings recorded in the said judgment against the
husband are not conclusive in nature. The learned counsel would,
therefore, urge that the finding recorded in the said judgment may
not be considered while dealing with the present Family Court
Appeal. She would, further, urge that since evidence of his wife has
gone unchallenged, the Appellant-Husband may be granted an
opportunity to cross-examine his wife and , therefore, parties may
be relegated to the trial Court. She would, therefore, urge that the
judgment and order may kindly be set aside.
10 The Petition was filed by the Wife under Section 13(1)
(ia) of the Hindu Marriage Act as she was subjected to not only
physical assault but also inflicted with mental cruelty alleging
Shivgan
::: Uploaded on – 28/02/2018 01/03/2018 01:12:39 :::
* 7/7 * FCA-190-2017.doc
infidelity by making reckless, baseless allegations against her
character. She was put to harsh and baseless suggestions in the
course of cross-examination in the said Sessions Case as could be
seen from paragraph 20 of the said judgment. All such allegations
were made by giving baseless suggestions which itself constitute
cruelty. Besides in the Family Court, Husband had ventured to
make scandalous, vulgar and baseless allegations against his wife
relating to alleged illicit relationship with Mr.’X’ which were
admittedly not part of the Written Statement.
11 Thus, on consideration of the evidence on record, we
are of the view that the Appellant-Husband treated his wife-
respondent with all possible humiliation and rendered her life
miserable. That such sustained unjustifiable conduct of the
Appellant-Husband has affected her physical and mental health.
12 In the circumstances, after going through the evidence
on record and the judgment in the Sessions Case whereby the
husband has been convicted as aforesaid, we see no reason to
interfere with the impugned judgment and order passed by the
Judge of the Family Court, Bandra. The above Family Court Appeal
is, accordingly, dismissed.
(SANDEEP K. SHINDE, J) (R.M.SAVANT, J)Shivgan
::: Uploaded on - 28/02/2018 01/03/2018 01:12:39 :::
