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Divorce : Demanding separate house without cause amounts to cruelty

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

FAMILY COURT APPEAL NO.353/2014

APPELLANT : Yogesh Arun Sonawane
Aged : 36 Years, Occp. : Architect R/o Plot No.A3,
Tarkeshwar Kunj Apartment, Anand Nagar, Suncity Road,Pune – 411 051.

…Versus…

RESPONDENT: Sau. Jyostna Yogesh Sonawane
Aged : 34 Years, Occp. : Architect R/o C/o Manohar Motiram Wane,
Swavlambi Nagar, Gaurakshan Road,Akola.

Shri U.J. Deshpande, Advocate for appellant
Shri J.B. Gandhi, Advocate for respondent

CORAM: SMT. VASANTI A. NAIK AND A.M. BADAR, JJ.

DATE : 07.04.2015
ORAL JUDGMENT : (PER : SMT. VASANTI A. NAIK , J.)

Admit. Heard finally with the consent of the learned Counsel
for the parties as record and proceedings are received.

By this appeal, the appellant husband challenges the judgment of the family Court, Akola dated 15.12.2012, dismissing the petition filed by the appellant – husband for dissolution of marriage on the ground of desertion and cruelty.

Few facts giving rise to the appeal are stated thus : The appellan thusband and the respondent – wife were married as per Hindu Rites and Customs on 13.12.2006. It is the case of the husband in the Hindu Marriage Petition filed by him for grant of decree of divorce that since the beginning the wife was not behaving properly with the family members of the husband. It is pleaded that the wife behaved arrogantly with her motherinlaw and brotherinlaw.

According to the husband, the efforts of the husband to convince the wife to stay happily in the family went in vain as the wife continuously pestered the husband for residing separately and away from the family members of the husband. It is pleaded that the wife refused to cohabit only with the husband and asked the husband to sever the ties with the other members of the family. It is pleaded that the wife left the matrimonial home on 1.1.2007 and on 27.1.2007 without any rhyme or reason. According to the husband, on 4.3.2007 a meeting was arranged in the house of the paternal uncle of the wife and at that time the wife refused to resume cohabitation. It is pleaded that on 5.3.2007 the wife left the company of the husband and went to reside in the parental home. The husband, therefore, filed the petition for grant of decree of divorce on the ground of desertion and cruelty. Before the Mediator, the parties agreed to give a try for saving the marriage and the husband arranged for a separate accommodation at Mangle Chawl on PuneSatara highway, by paying a deposit of Rs.40,000/and on a monthly rent of Rs.4,000/.

It is pleaded that the wife however refused to reside with the husband in the said Chawl and asked the petitioner to secure accommodation in a good locality. It is pleaded that the action on the part of the wife in leaving the matrimonial home without rhyme or reason clearly showed that the wife had no desire to stay with the husband and his family and he was therefore entitled to grant of a decree of divorce, on the ground of desertion and cruelty.

The wife filed the written statement and denied the claim of the husband. It was denied by the wife that she continuously pestered the husband for residing separately and away from his family members. It is pleaded that the mother of the husband treated her with cruelty. It is pleaded that she was asked to cook the food and perform the matrimonial duties despite the fact that she was pregnant and was asked by the Doctor to stay away from the kitchen. It is pleaded that the mother of the husband abused her when the husband was away from the matrimonial home and had gone to Nashik for his professional duties. It is pleaded that when the wife informed the husband after his return from Nashik about the cruel behavior of the husband’s mother and his elder brother, the husband got agitated and argued with her. It is pleaded that she was prevented from talking with her parents on the telephone when the husband was away. It is pleaded that the mother of the husband started arguing with her when she was searching for some biscuits on 21.1.2007 as she was hungry. It is pleaded that she was compelled to leave the matrimonial home on 6.3.2007 and she stayed with her parents since then, along with her two daughters. It is pleaded that the separate residence arranged by the husband was in a very bad locality and was inconvenient. It is pleaded that the separate residence was secured by the husband in a locality of labourers and the residence had a roof of tinshed. The wife sought for the dismissal of the Hindu Marriage Petition.

On the aforesaid pleadings of the parties, the family Court framed the issues and the parties tendered evidence in support of their respective cases. The husband examined himself and reiterated the facts pleaded in the petition. The wife examined herself and also examined her father and one Nilesh in support of her case. On an appreciation of the evidence on record, both oral and documentary, the family Court came to a conclusion that the husband had been successful in proving that the wife had treated him with cruelty. The family Court, however, did not answer the issue in regard to the desertion by the wife in favour of the husband. Despite a finding that the wife had treated the husband with cruelty, the family Court refused to grant a decree of divorce in favour of the husband on the ground that the husband cannot take advantage of his own wrong. The family Court relied on the provisions of Section 23 (1) (a) of the Hindu Marriage Act, 1955 to hold that the husband was not entitled to a decree of divorce on the ground of cruelty as he had not followed the terms of the settlement executed before the Mediator in the true letter and spirit by not hiring a suitable accommodation for the separate residence for himself and his wife. The judgment of the family Court is challenged by the husband by this appeal.

Shri Deshpande, the learned Counsel for the husband submitted that the family Court was not justified in refusing to grant a decree of divorce on the ground of cruelty after recording a finding in regard to the cruel treatment of the wife against the husband by erroneously resorting to the provisions of Section 23 (1) (a) of the Act. It is stated that the family Court ought to have granted a decree of divorce after recording the finding that the wife treated the husband with cruelty. It is stated that a mere demand by the wife to have a separate residence, so that the husband and wife could live separately from the family members of the husband, without any reasonable cause tantamounts to cruelty. It is stated that after the family Court held that the wife was not justified in asking the husband to stay separately and leave the matrimonial home, the family Court ought to have granted a decree of divorce in favour of the husband.

It is stated that when the family Court did not accept the evidence of the wife in regard to the illtreatment by her motherinlaw, the family Court ought to have dissolved the marriage by a decree of divorce. It is stated that the family Court could not have relied on the provisions of Section 23 (1) (a) of the Act for refusing to grant a decree of divorce in favour of the husband. It is stated that the husband had arranged for a separate residence in accordance with his financial condition and the very attitude of the wife in refusing to stay with the husband in the separate accommodation on the ground that it was inconvenient would further demonstrate cruelty on the part of the wife. The learned Counsel relied on the unreported decisions of this Court in First Appeal No.1253/2008 (Smt. Bhawna w/o Vijaykumar Sakhare…Versus…Vijaykumar s/o Tarachand Sakhare) decided on 13.08.2012, First Appeal No.259/2012 (Rahul Pritamsingh Chhabra…Versus…Smt. Shipra w/o Rahul Chhabra) decided on 28.07.2014 and the decision of the Hon’ble Supreme Court reported in AIR 2002 Supreme Court 88 (Adhyatma Bhattar Alwar…Versus…Adhyatma Bhattar Sri Devi) to substantiate his submission that the very demand by the wife to stay in a separate accommodation with the husband and away from the family members would amount to cruelty and the husband cannot be faulted for not arranging a separate accommodation as per the desire of the wife.

Shri Gandhi, the learned Counsel for the wife supported the judgment of the family Court and submitted that the family Court was justified in dismissing the petition for divorce as the husband was not ready to reside with the wife in a separate residence and had arranged for an inconvenient accommodation in a tinshed without any facilities, after the parties agreed to reside together in a separate residence in accordance with the arrangement and consent terms recorded in the presence of the Mediator. It is stated that the husband had not found a suitable accommodation in which the wife and the husband could reside and the family Court has therefore rightly held that the husband cannot take the advantage of his own wrong. It is submitted that there was sufficient cause for the wife to seek a separate residence as the motherinlaw of the wife was treating her with cruelty. The learned Counsel for the wife sought for the dismissal of the appeal.
On hearing the learned Counsel for the parties, it appears that the following points arise for determination in this appeal.

(1) Whether the family Court could have dismissed the petition filed by the husband for a decree of divorce by resorting to the provisions of Section 23 (1) (a) of the Hindu Marriage Act ?
(2) Whether the husband is entitled to a decree of divorce on the ground of cruelty ?
(3) What order ? To answer the aforesaid points for determination, it would be necessary to consider the pleadings and the evidence of the parties. It would not be necessary to reproduce the pleadings of the parties as the pleadings are already stated in this judgment. The husband had examined himself. He had reiterated the facts stated in his pleadings, in his examinationinchief.

The husband was cross examined at length. However, there is nothing in the crossexamination of the husband which falsifies the case of the husband in regard to the cruelty meted out by the wife to the husband and his family members. Though the wife tried to point out through the crossexamination of the husband that the marriage between the elder brother of the husband and his wife was dissolved in view of the cruelty meted out by the husband’s mother to the wife of Dinesh also, the husband denied the said fact. It was denied by the husband in his crossexamination that due to the illtreatment of his brother and mother, the wife of Dinesh had secured a decree of divorce. The husband denied that his mother had illtreated the wife and abused her despite the fact that the wife was pregnant. Though it was admitted by the husband that after 17.4.2007 he never went to Akola to bring the wife to the matrimonial home, he volunteered that attempts were made by him to secure her company but there was no positive response from her. When a suggestion was given to the husband in respect of his advice to the wife to abort the child, the husband denied the same. The husband admitted in his crossexamination that the wife was advised bedrest. In respect of the other allegations made by the husband in regard to the cruelty meted out by the wife there was no crossexamination.

The evidence of the husband that the wife argued with his mother and brother and was desirous of living separately and away from the other members in the matrimonial home, has gone unchallenged. The evidence of the husband that the wife left the matrimonial home on a couple of occasions without any rhyme or reason and without informing the husband has also gone unchallenged. The wife has reiterated the facts pleaded by her in the written statement, in her examinationinchief.

In the cross examination, the wife admitted that her motherinlaw is an old lady and she was residing in the matrimonial home along with her motherinlaw, brotherin law and her husband. She denied the suggestion that she did not do “Namaskar” or give respect to elders and prepare snacks and tea when the relatives visited the matrimonial home. She also denied that she was not willing to perform the household work. The wife denied the suggestion that she left the matrimonial home on more than a couple of occasions without informing anybody in the matrimonial home. She, however, admitted that she went to the house of her uncle with her parents on 4.3.2007. She admitted that her paternal uncle told her husband in the meeting of the family members that the wife and the husband are capable of taking a decision in regard to the wife’s health. The wife also admitted that in the meeting she told the husband that she was not willing to reside in the joint family and wanted to reside separately. She, however, volunteered that she refused to reside in the matrimonial home as her motherinlaw had told her that the daughters did not belong to Yogesh and there was an atmosphere of disharmony in the matrimonial house. The wife admitted that there was an agreement between the parties on 16.9.2011, whereby she had agreed to join the company of the husband, from the Court. It was admitted by the wife that she was residing in the parental home after leaving the matrimonial home with her parents, brother, his wife, daughter and her daughters in a joint family. The wife also examined her father. The father of the wife stated in his examinationinchief that his daughter was illtreated by her inlaws.

It is stated by the father that he was ready to send his daughter along with her husband for residing in the matrimonial home but the husband should make an arrangement for the separate residence, wherein the husband and wife could live with their daughters. The father of the wife admitted in his crossexamination that he had not personally seen the rented house arranged by the husband for the wife after the terms were settled in the presence of the Mediator. It is admitted by the father that he is not ready to send his daughter for cohabitation with the husband in the same house where the husband is residing with his brother and mother. It was denied by the father that he was unnecessarily supporting the wife and helping her to impose the condition for separate residence.

It is clear on the basis of the evidence tendered by the parties and therefore, it is rightly recorded by the family Court on an appreciation of the material on record that the wife had treated the husband with cruelty. Apart from the oral evidence, the family Court had considered the reply sent by the wife to the registered notice issued by the husband, wherein the wife had categorically stated that she would join the company of the husband only if he resides separately with her in a separate accommodation and away from his family members. The reply by the wife to the notice issued by the husband clearly falsifies the case of the wife that she had not insisted that the husband and wife should reside in a separate accommodation. The family Court has rightly recorded that within a short span of less than three months of joint residence, the wife could not have demanded separate residence. It was found by the family Court and rightly so that the wife was not willing to reside along with her motherinlaw and brotherinlaw.

The family Court held that it was difficult to accept that within a short span of less than three months the wife was treated by her motherinlaw with such cruelty that it was not possible for her to reside together with her inlaws in the matrimonial home. The attitude and conduct of the wife, as found by the family Court, was not proper as the wife was seeking a separate residence immediately after the parties were married. The parties had admittedly resided together only for a period of two and half months as the marriage was solemnized on 13.12.2006 and the wife finally left the company of the husband on 5.3.2007 never to return to the matrimonial home. In the short spell the wife intermittently left the company of the husband without informing anybody in the matrimonial home for residing with her paternal uncle. The family Court considered that before the family Court also the wife was continuously demanding a separate accommodation for herself and her husband. The word ‘cruelty’ though is not defined under the Act, the family Court rightly held that in the circumstances of the case the wife had treated the husband with cruelty. The husband was mentally tormented because of the acts of the wife in the short span of less than three months. The wife had been unsuccessful in proving that her motherinlaw had treated her with such cruelty that it was difficult for her to stay in the matrimonial home along with her. On an appreciation of the material on record, the family Court held that the quarrels between the motherinlaw and the daughterinlaw were only a reflection of the ordinary wear and tear in the matrimonial life. It is held in the unreported decisions of this Court in First Appeal No.1253/2008 (Smt. Bhawna w/o Vijaykumar Sakhare…Versus…Vijaykumar s/o Tarachand Sakhare) decided on 13.08.2012, First Appeal No.259/2012 (Rahul Pritamsingh Chhabra…Versus…Smt. Shipra w/o Rahul Chhabra) decided on 28.07.2014 (Supra) and the decision of the Hon’ble Supreme Court reported in AIR 2002 Supreme Court 88 (Supra) that the persistent demand by the wife to stay away from the joint family in the matrimonial home and reside separately with the husband itself would tantamount to cruelty, if it is not proved by the wife that the wife was compelled to reside in a separate residence.

On an overall reading of the crossexamination of the wife, it is clear that the inlaws of the wife had not treated her with cruelty, as a result of which, she was required to demand separate accommodation. The family Court observed that even during the course of trial, on a number of occasions, the wife insisted for separate residence and the attitude and conduct of the wife in insisting for a separate residence when she had admittedly resided in the matrimonial home only for a period of less than two and half months clearly shows that the wife treated the husband with cruelty. On an appreciation of the evidence of the father of the wife, it is clear that the father of the wife did not desire that his daughter should live in the matrimonial home along with her inlaws.

In his examinationin he has clearly stated that he is ready to send his daughter in the matrimonial home provided the husband provides a separate accommodation for the parties at a convenient place with proper facilities. It would be pertinent to note that the father of the wife and the wife were aware before the marriage that the husband was residing with his mother and elder brother and that she would be required to reside in the joint family in the matrimonial home. It is further pertinent to note that the wife is residing in her parental home in a joint family since 6.3.2007 along with her parents, her brother, his wife, their children and also her daughters. In the given set of facts when the wife had failed to prove that her motherinlaw had treated her with cruelty, the family Court rightly held that the wife has treated the husband with cruelty by leaving the matrimonial home without informing anybody, by demanding a separate residence for the husband and herself and by making false and reckless allegations against the members of the husband’s family without substantiating them. On an overall view of the evidence, it is clear that the wife had treated the husband with cruelty and the family Court has therefore rightly answered the said issue in favour of the husband. Though the family Court was justified in answering the aforesaid issue in favour of the husband, the family Court was not justified in dismissing the petition for a decree of divorce by resorting to the provisions of Section 23 (1) (a) of the Act. Under Section 23 (1) (a) of the Hindu Marriage Act, the family Court is not bound to grant a decree of divorce to a party despite the existence of a ground for divorce, when the party seeking divorce is taking advantage of his or her own wrong or disability for seeking the relief.

We do not find on a perusal of the evidence on record that the husband was taking advantage of his own fault, wrong or disability for the purpose of seeking the divorce. The wife had left the company of the husband within a short period of about two and half months without any rhyme or reason as observed by the family Court. With the help of the Mediator, the parties had agreed to reside together in a separate accommodation. According to the husband, as per his financial condition he had arranged an accommodation in Mangle Wadi. The family Court observed on the basis of evidence tendered by the wife’s witness Nilesh and also the photographs that the accommodation arranged by the petitioner was not proper. The family Court, while so observing did not consider the evidence of the husband that he had arranged for the accommodation as per his financial condition. The family Court erroneously gave much weightage to the report of the Marriage Councillor that the husband was not ready to reside with the wife and therefore, he had not secured a suitable accommodation.

The family Court erroneously relied on the aforesaid facts to hold that the husband was taking advantage of his own wrong by not complying with the terms of the settlement recorded in the presence of the Mediator. In the circumstances of the case, it was not necessary for the husband to secure a separate accommodation for himself and his wife when the husband had clearly established on the basis of oral and documentary evidence that the wife had treated him with cruelty. The acts of cruelty on the part of the wife cannot be wiped out only because the husband had not secured accommodation as per the desire of the wife after the parties had executed the terms of settlement before the Mediator in the year 2011. It is necessary to note that the wife has without any justifiable cause left the company of the husband for more than a period of 7 to 8 years and the husband was entitled to a decree of divorce, in the circumstances of the case, more so, when the family Court had answered the issue in regard to cruelty in favour of the husband. The family Court could not have held that there was no bona fide offer from the husband and he was not ready to abide by the terms of the settlement executed before the Mediator. Undue weightage has been given by the family Court to the fact that the separate arrangement or accommodation was not suitable for the wife and the husband. When the family Court had held that the acts on the part of the wife in seeking separate accommodation tantamounted to cruelty then the family Court could not have proceeded to hold that the husband had not made any sincere efforts to arrange for the separate accommodation. We find on a reading of the unreported decisions of this Court in First Appeal No.1253/2008 (Smt. Bhawna w/o Vijaykumar Sakhare…Versus…Vijaykumar s/o Tarachand Sakhare) decided on 13.08.2012, First Appeal No.259/2012 (Rahul Pritamsingh Chhabra…Versus…Smt. Shipra w/o Rahul Chhabra) decided on 28.07.2014 (Supra) and the decision of the Hon’ble Supreme Court reported in AIR 2002 Supreme Court 88 (Supra) that the demand by the wife to seek separate residence amounts to cruelty when there is no justifiable cause for seeking the same. In the instant case, the other evidence tendered by the husband along with the evidence tendered by him to prove that the wife was continuously pestering and demanding the husband to stay away from his relatives will surely prove that the wife treated the husband with cruelty.

In the facts of the case, in our considered view, the family Court has given undue weightage to the securing of an alternate accommodation by the husband that was not satisfactory, for refusing to grant a decree of divorce by resorting to the provisions of Section 23 (1) (a) of the Act. On the basis of the evidence on record, it is clear that the husband is entitled to a decree of divorce on the ground of cruelty.

Hence, for the reasons aforesaid, the appeal is allowed. The marriage between the appellanthusband and the respondentwife stands dissolved by a decree of divorce under Section 13 (1) (ia) of the Hindu Marriage Act, 1955. In the circumstances, no costs.

JUDGE JUDGE
Wadkar

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