IN THE HIGH COURT OF JUDICATURE AT BOMBAY 

CIVIL APPELLATE JURISDICTION 

CORAM : SMT. V.K. TAHILRAMANI & MR. V.L. ACHLIYA, JJ 

Pronounced on : 4th DECEMBER, 2013. 

FAMILY COURT APPEAL NO. 141 OF 2012 

WITH

CIVIL APPLICATION NO. 308 OF 2012 

Reshma Rakesh Kadam 

Versus

Rakesh Vijay Kadam

Mr. V.R. Sutrale for the Appellant Mr. M.R. Sabnis for the Respondent

COMMON JUDGMENT

 [PER SMT. V.K. TAHILRAMANI, J.] 

1. The appellant has preferred this appeal against the common Judgment & Order dated 30.08.2012 passed by the Judge, Family Court at Bandra, Mumbai in Petition No. A-1525 of 2008 and Petition No. A-1192 of 2008. Petition No. A-1192 of 2008 was filed by the respondent-husband for decree of divorce on the ground of cruelty and desertion. The appellant-wife had filed Petition No. A- 1525 of 2008 against the respondent-husband for decree of restitution of conjugal rights. By the said Judgment and Order, Petition No. A-1192 of 2008 filed by the respondent-husband came to be decreed and the marriage between the appellant and the respondent came to be dissolved by decree of divorce on the ground of cruelty. By the said Judgment and Order, Petition No. A- 1525 of 2008 filed by the appellant-wife for restitution of conjugal rights was dismissed. Hereinafter, for the sake of convenience, the appellant will be referred as ‘wife’ and the respondent will be referred as ‘husband’.

2. Some of the admitted facts are that the appellant and the respondent got married on 26.12.2005 according to Hindu rites and rituals. There is no issue born out of the said wedlock. The appellant-wife was residing with the respondent-husband in his joint family till November-December 2007. According to the husband, the wife left the house on 07.11.2007 whereas according to the wife, she was compelled to leave the matrimonial house on 06.12.2007 and not on 07.11.2007. It may be stated at this stage that though the husband had filed petition for divorce on the ground of cruelty and desertion, his petition for divorce was allowed only on the ground of cruelty. As far as the ground of desertion was concerned, the Family Court observed that as per the case of the husband, the wife left the matrimonial home on 07.11.2007 and the petition for divorce was filed on 15.05.2008 i.e within a period of about six and half months from the date of separation, therefore, the pre-requisite condition of two years to get the decree of divorce on the ground of desertion is not satisfied.

3. The husband has given several instances of cruelty caused by the wife to him. In his affidavit by way of examination in chief filed at Exh. 18, he has specifically deposed about the instance dated 31.12.2005 which took place soon after their marriage. He has stated that there was dinner programme arranged at his residence for relatives. His wife did not speak to anybody and remained aloof. During the dinner programme, wife’s mobile was misplaced and she created big hue and cry as she did not get the mobile and thereafter, she alleged that some of his relatives had stolen her mobile. It is pertinent to note that the wife in her written statement Exh. 11 has admitted that on 31.12.2005, there was a dinner at the residence of her husband and her mobile was stolen by someone during the dinner programme. Therefore, it can be safely inferred that the instance of stealing of mobile did occur on 31.12.2005. If we look into cross-examination of husband i.e Ex. 18, then the facts deposed on oath by husband in respect of incident dated 31.12.2005 were not at all challenged in the cross-examination.

4. The second instance of cruelty stated by the husband is that on 31.12.2005, they left Mumbai and went for their honeymoon. During the honeymoon, his wife quarreled with him on small matters and harassed him and she did not cooperate during physical relations and avoided it on one or the other pretext. His evidence shows that the wife avoided sexual relations even thereafter. This important fact deposed by the husband was also not challenged in the cross-examination.

5. The third instance of cruelty stated by the husband is that the wife started harassing him for separate accommodation though before the marriage, she had agreed to stay in joint family and it was made clear to her that she would have to reside in a joint family, yet she picked up quarrels on the issue of separate accommodation. The husband has further stated that the wife was not paying attention towards household work and she used to avoid it on one pretext or the other. She used to remain out of the house even on Sundays. The husband has further stated that his wife used to tell him that she was not interested in getting married with him and as such she did not like him and she had married him against her wish. His wife threatened him to commit suicide either by jumping before train or consuming sleeping pills and on one of the occasions, she also tried to consume sleeping pills in front of the members of his family. She also abused them at that time. This entire evidence remained unchallenged.

6. In view of the several instances of cruelty stated by the husband, it was necessary on the part of the wife’s Advocate to cross-examine the husband on the aspect of cruelty, however, it is noticed that he has not been cross-examined at all on the aspect of cruelty by the learned Advocate for the wife. Thus, the evidence of the husband regarding cruelty as stated by him remained unchallenged.

7. The evidence of the husband that she avoided physical relations with him, she quarreled and harassed him and threatened him to commit suicide, is sufficient to held that the husband was subjected to cruelty by the wife during the course of her stay with him. Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment. In Parveen Mehta Vs Inderjeet Mehta, (2002) 5 Supreme Court Cases 706 and in the case of Shashi Bala Vs. Rajeev Arora, 1 DMC 721 it is held that, “Sex is the foundation of marriage and marriage without sex is an anathema. Willful denial of sexual intercourse without reasonable cause would amount to cruelty. A person enjoying normal health being deprived of normal cohabitation by spouse and thus undergoing anguish and frustration could be said to have been subjected to mental cruelty.” Importantly, this fact was not at all challenged in the cross-examination of the husband.

8. The wife in her affidavit by way of examination in chief Exh. 20 stated that the husband had caused mental and physical cruelty to her during her stay with him, however, it is to be noted that she has not disclosed any details of the acts of cruelty caused to her in her evidence. Her evidence regarding mental cruelty being caused to her by the husband and his mother is not supported by any evidence. What was the nature of mental cruelty caused to her is also not disclosed in her claim affidavit. Therefore, there is no satisfactory and cogent evidence forthcoming in her claim affidavit that she was subjected to cruelty by the husband.

9. The wife has made very serious allegations that the husband was maintaining extra marital relation. She has stated that one day she came to know about the husband’s affair with one lady from personal computer, however, it is seen that she has not substantiated the said allegation by adducing evidence. It is pertinent to note that the respondent – wife in her affidavit by way of examination in chief i.e para 6, categorically stated that one day she personally come to know about affair of her husband with one lady from the computer at her matrimonial house. However, in the cross-examination, she has admitted that she has not produced any proof in respect of her said allegation against the husband. The Apex Court in the case ofVijaykumar Ramchandra Bhate Vs Neela Vijaykumar Bhate, (2003) 6 SCC 334 has observed that allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the spouse. Such allegation made in the written statement or suggested in the course of examination or by way of cross-examination satisfies that a case of cruelty is made out.

10. As stated earlier, all the instances of cruelty deposed by the husband have remained unshaken. The wife’s Advocate has not challenged the same during cross-examination. On the contrary, in cross-examination of wife, number of admissions have been brought on record to prove the case of husband. We do not find any reason to disbelieve the unchallenged evidence of the husband discussed above regarding the cruelty caused to him by the wife, hence, we are of the opinion that the Family Court was right in holding that the husband, by adducing cogent and satisfactory evidence, has proved that the wife has caused cruelty to him after solemnization of their marriage and as such, he is certainly entitled to have a decree of divorce on the ground of cruelty.

11. As far as the entitlement of the wife to have a decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act is concerned, our earlier discussion shows that the husband has proved the ground of cruelty and is found to be entitled to have a decree of divorce on the ground of cruelty. In such case, the question of entitlement of the wife to have a decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act does not arise. So also the evidence on record clearly shows that the wife has failed to prove her case that without any reasonable excuse, her husband has withdrawn from her society. The reasons recorded by the learned Judge of Family Court in refusing the relief in favour of wife are quite sound and based upon due consideration of pleadings and evidence on record. We, therefore, are not inclined to interfere with the findings recorded by the Family Court.

12. Mr. Sutrale, learned counsel for the wife submitted that a complaint under Section 498A has been lodged by the wife against the husband and other family members which shows that she was a victim of cruelty. It is seen that the petition for divorce was filed by the husband on 15.05.2008. Thereafter, the petition for restitution of conjugal rights was filed by the wife on 04.07.2008 and thereafter, the complaint under Section 498A has been lodged by the wife in the year 2009, This shows that it was lodged belatedly by way of an afterthought. Thus, we find no merit in this submission.

13. Mr. Sutrale, learned counsel for the wife submitted that the issues were not properly framed by the Family Court. We are of the opinion that this grievance has been raised only by way of an afterthought and there is no merit in the same. If according to the learned counsel, the issues had not properly farmed, in such case, an application would have been made to the Family Court for recasting the issues or for framing additional issues, however, it is seen that no grievance has been made before the Family Court at any time at all during the proceedings. In any event, it is seen that the husband had filed a petition for divorce on the ground of cruelty and desertion and we find that the issues have been properly framed on that aspect. As far as the wife’s petition for restitution of conjugal rights is concerned, on going through the issues, we find that they have been properly framed.

14. Mr. Sutrale further submitted that no proper opportunity was given to cross-examine the husband and hence, the matter ought to be remanded back to the Family Court for cross-examination of the husband. As far as this aspect is concerned, we find that sufficient opportunity has been given to wife. She was represented in the proceedings through Advocate engaged by her. The learned Advocate has cross-examined the husband. No application has been made at any time for further crossexamination. Thus, it cannot be said that no opportunity was given to cross examine the husband and hence, on that ground, the matter ought to be remanded back.

15. In view of the above, we find no merit in the appeal, hence, it is dismissed. No order as to costs.

16. In view of disposal of the appeal, nothing survives in Civil Application No. 308 of 2012. The same is also disposed of.

[MR. V.L. ACHLIYA, J ] 

[SMT. V.K. TAHILRAMANI, J ]