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

FAMILY COURT APPEAL No. 42/2017

Sudhir Kamlakar Kharbade,aged about 44 years, occupation – Teacher,
r/o Suraj Colony, Tower Line,Behind V.M.V. College, Amravati,Tq. Dist. Amravati APPELLANT

…..VERSUS…..

Sau. Sangita w/o Sudhir Kharbade,aged about 40 years, occupation – Business,
r/o c/o Shrikrishna Ramraoji Umak,Bhatkuli, Tq. Bhatkuli Dist. – Amravati. RESPONDENT

Mrs. B.P. Maldhure, counsel for the appellant.
Shri A.Z. Jibhkate, counsel for the respondent.

CORAM :SMT.VASANTI A NAIK AND MRS. SWAPNA JOSHI, JJ.
DATE : 20 TH APRIL, 2018.
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.) The family court appeal is ADMITTED and heard finally with the consent of the learned counsel for the parties.

2. By this family court appeal, the appellant-husband has challenged the judgment of the Family Court, Amravati dated 23.05.2017 dismissing the petition filed by the appellant under Section 13(1)(ia) and (ib) of the Hindu Marriage Act on the ground of cruelty and desertion.

3. Few facts giving rise to the family court appeal are stated thus:-
The appellant-husband (hereinafter referred to as ‘the husband’ for the sake of convenience) and the respondent-wife (hereinafter referred to as ‘the wife’) were married at Amravati as per Hindu rites and custom on 09.05.1999. After the solemnization of the marriage, the wife started residing at Karla, District Amravati in the joint family. In the petition filed by the husband for a decree of divorce on the ground of cruelty and desertion, it is pleaded that the wife was never interested in residing in the joint family and she always demanded for a separate residence at Chandur Railway. It is pleaded in the petition that after the solemnization of the marriage, the wife was avoiding the husband and was not ready to have sexual relations with him. It is further pleaded in the petition that the husband hoped that on the birth of the child, the wife would mend her ways but despite the birth of a daughter, the attitude and the adamant behaviour of the wife persisted. It is pleaded that during her stay in the matrimonial house, the wife had attempted to commit suicide and on one occasion, she had attacked her husband with a knife. It is pleaded that due to the demand by the wife for a separate residence, the wife behaved in a very unruly manner. It is pleaded that the wife did not have respect for her father-in-law and mother-in-law and she behaved very rudely and arrogantly with them. It is pleaded that when the paternal grand mother of the wife expired in February 2009, the wife had been to her parental house for quite some time and the wife did not return to the matrimonial home though the husband went to her parental home to bring her back in the last week of February-2009. It is pleaded that the wife deserted the company of the husband without any just and reasonable excuse. It is pleaded that the husband had filed a petition for divorce on 26.08.2009 but the same was withdrawn with liberty to file a fresh petition as the parties have not separated for a period of two years before the filing of said petition. It is stated that the wife had lodged a false report against the husband for the offence punishable under Section 498-A of the Indian Penal Code. It is stated that great agony was caused to the appellant due to the false complaint filed by the wife in the police station. It is submitted that the wife wanted to further harass the husband and hence she had also filed proceedings against him under the provisions of the Protection of Women from Domestic Violence Act. It is pleaded that the acts on the part of the wife caused great mental agony to the husband and hence it was necessary to dissolve the marriage solemnized between the husband and the wife by a decree of divorce on the ground of desertion and cruelty.

4. The wife filed the written statement and denied the claim of the husband. The wife denied each and every allegation levelled by the husband against her and tried to show that she was a dutiful wife. In her specific pleadings the wife pleaded that the husband always ill-treated her and she tried to co-habit with him only with a hope that he would change his behaviour. It is pleaded by the wife that when she was residing in the matrimonial home, the husband had demanded an amount of Rupees One lakh from the parents of the wife. It is pleaded that the parents of the wife had paid the amount of Rs. One lakh to the husband. It is pleaded that on 25.11.2009, the husband had mercilessly beaten the wife and had tried to set her on fire. It is pleaded that due to the said act on the part of the husband, wife had no course open but to leave the matrimonial home and reside with her parents. It is pleaded that on 25.11.2009 the husband tried to obtain the signature of the wife on a blank paper and when she refused to sign, the husband had beaten her mercilessly with kicks and blows. The wife sought for the dismissal of the petition filed by the husband.

5. In support of his case, the appellant – husband had examined himself and the wife had also examined herself in defence. The parties did not examine any other witness in respect of their respective cases. On an appreciation of the evidence on record, the Family Court dismissed the petition filed by the husband. The judgment of the Family Court is challenged by the husband in this Family Court Appeal.

6. Mrs. Maldhure, learned counsel appearing for the appellant – husband submitted that the Family Court has not appreciated the pleadings and evidence of the parties in the right perspective while dismissing the petition filed by the husband. It is stated that the wife has not only treated the husband with cruelty but she had also filed a false report under Section 498-A of the Indian Penal Code, as a result of which the husband had to suffer a great mental agony and his reputation was also spoiled. It is stated that the husband is acquitted in the proceedings in the criminal case under Section 498-A of the I.P.C. It is submitted that the wife has levelled reckless allegations against the husband in her written statement and has failed to prove the same by tendering evidence. It is stated that the wife has pleaded in the specific pleadings that the husband had beaten her mercilessly on 25.11.2009 and had tried to set her on fire and therefore, she had to leave the matrimonial home but there is no evidence on said aspect. It is stated that the pleadings that are not supported by evidence are liable to be ignored. It is stated that the wife has also not proved that the husband had asked her to sign on blank paper and when she has refused to sign the papers she was mercilessly beaten by kicks and fists. It is submitted that the Family Court has erroneously held that the husband has failed to prove his case about the wife’s threats to commit suicide and also about the attempt to assault the husband with knife as he had not lodged a report in respect of the same FCA 42/17 6 Judgment in the police station. It is stated that normally a spouse would not file a report against the other spouse in the police station with a hope that the other spouse would mend his/ her ways and parties may be able to live peacefully in future. It is submitted that in several parts of the judgment, the Family Court has observed that though in the petition filed by the husband against the wife, her irrational behaviour pertaining to her threats to commit suicide and her attempt to assault is pleaded, no police complaint is filed by the husband. It is submitted that despite the service of notice on the wife to return to the matrimonial home, she had refused to join the company of the husband. It is submitted that the Family Court has erroneously recorded a finding that the wife was compelled to leave the matrimonial home because of the ill-treatment of the husband. It is submitted that the husband had not only served a legal notice on the wife seeking her return but had also moved an application to the Mahila Sampudeshan Kendra, Amravati, with a hope that the wife would reside with him but without any success. It is stated that in the facts and circumstances of the case, when the wife has levelled serious allegations against the husband and has failed to prove, the husband would be entitled to a decree of divorce on the ground of cruelty.

7. Shri Jibhkate, the learned counsel for the respondent – wife has supported the judgment of the Family Court. It is submitted that while acquitting the husband of the offence punishable under Section 498-A of the Indian Penal Code, benefit of doubt was extended to him. It is submitted that the orders favourable to the wife were passed in the proceedings under the provisions of the Protection of Women from Domestic Violence Act. It is submitted that there is no proof of the fact pleaded by the husband that the wife was not ready to consummate the marriage and that she had threatened to commit suicide and hurt the husband with a knife. It is stated that the case of the husband that the wife always desired that they should reside separately from the joint family is not proved by him and the same is also falsified by the construction of the house by the husband at Amravati. The learned counsel for the respondent has relied on the judgment of the Hon’ble Supreme Court in the case of Ravi Kumar vs. Julmidevi, reported at (2010) 4 SCC 476, to substantiate his submission. It is submitted that it would be necessary for a party to mention all particular acts of cruelty in the petition. The judgment of this Court in the case of Arundhati Deepak Patil vs. Deepak Bhaurao Patil, reported at 2008 (6) Mh. L.J. 554, is relied upon to substantiate the submission that the burden to prove would lie on the husband, if he seeks divorce on the ground of cruelty. Thirdly, the learned counsel has relied on the judgment of the Hon’ble Supreme Court in the case of Rajkumar T. s/o Bhaskaran vs. Moljimol K.S. d/o K.P. Sasidharan, reported at 2017 (5) All MR (Journal) 57, to substantiate his submission that pleadings in regard to cruelty need to be specific.

8. On hearing the learned counsel for the parties and on a perusal of the record and proceedings and the pleadings and evidence of the parties, it appears that the following points arise for consideration in this appeal:-
I) Whether the husband is entitled to a decree of divorce on the ground of cruelty and desertion?
II) What order?

9. It appears from the evidence on record that the Family Court was not justified in dismissing the petition filed by the husband by recording in the judgment that the wife may not have threatened him that she would commit suicide or may not have tried to hurt him with a knife as he had not lodged a report in that regard in the police station. Initially, the husband must have waited with a hope that the wife would mend her ways. As we have already narrated the pleadings of the parties in detail, it would not be necessary to reiterate the pleadings of the parties. Though the learned counsel for the wife has stated that the husband has not tendered the evidence about the pleadings in respect of the wife threatening him that she would commit suicide and that she had tried to assault him with knife, we find that the husband has clearly tendered evidence in this regard. The Family Court has disbelieved the case of the husband in regard to the threats given by the wife to commit suicide and the attempted assault on the husband with knife only because he had not lodged the report in regard to the same in the police station. Normally, the parties do not approach the police station in respect of the disputes in the matrimonial home unless it becomes virtually impossible for them to tolerate the misbehaviour of the other, which would be extremely harmful to his/ her life or limb or reputation. In the instant case, the husband has clearly pleaded and has also stated in his evidence that the wife used to threaten him that she would commit suicide and she had made an attempt to commit the same. The husband has also clearly stated that the wife had also tried to attack him with a knife. The observation of the Family Court and the submission made on behalf of the wife that the husband has failed to tender evidence on this aspect is incorrect. The husband has clearly stated in his evidence about the threats given by the wife to him and also about the attempt made by the wife to assault him with a knife. It appears from the evidence of the husband that the wife was always behaving rudely with his parents and she desired that the husband should leave his parents and reside with her in a separate residence. Though the wife has denied the said fact, it appears on an overall reading of the evidence of the husband and the wife that the evidence of the husband is more reliable. It appears from the evidence of the husband that the wife was not willing to reside in the joint family and wanted to have separate residence for residing separately with her husband only. It appears from the evidence of the husband that the wife behaved rudely with his parents. Only because the husband had not examined his parents in this regard, it cannot be said that his evidence is not trustworthy. This Court has time and again held that the quantity of evidence would not be relevant while deciding the matter but the quality of evidence would be relevant.

10. In this case, it appears that the wife had lodged a complaint under Section 498-A of the Penal Code. It is clearly observed in the judgment in the said case that there is no evidence in respect of the claim of the wife that the husband had demanded money from her parents. It is nobody’s case that the wife belonged to a rich or influential family, who would be able to provide funds to the husband. We have held time and again that lodging a false police complaint against the husband in respect of a serious offence punishable under Section 498-A of the Penal Code would tantamount to cruelty. In the instant case, we find that though the wife had made a serious allegation against the husband that he had demanded the sum of Rupees One Lakh from her parents and that they had paid the same to the husband, she has not proved the said fact. We also find that the wife has made serious allegations against the husband that on 25.11.2009, he had mercilessly beaten her and thereafter she was required to leave the matrimonial home and reside with her parents as he had tried to set her on fire. These allegations are very serious. When a wife makes an allegation of such a nature, it is least expected of the wife, to tender oral evidence on this aspect. It is observed by the Hon’ble Supreme Court and this Court in a number of decisions that levelling of serious and reckless allegations against the spouse and failing to prove the same would tantamount to cruelty. In the instant case, though the wife had made allegations against the husband in regard to his conduct and behaviour, the wife has not uttered a word in regard to said allegations in her oral evidence. The Family Court, however, did not give any thought to this aspect of the matter, though it was one of the relevant matters that ought to have been considered by the Family Court while deciding the petition filed by the husband on the ground of cruelty. It is well settled that a husband could prove the cruelty by the wife on the basis of allegations made by her against him and he could also prove the same by pointing out that the wife has failed to prove the serious and reckless allegations made against him by tendering evidence.

11. In the instant case, we find that the wife has ill-treated her husband, her in-laws and has lodged a false complaint against him under Section 498A of the I.P.C. The wife has also made reckless allegations against the husband and she has failed to prove the same by tendering evidence in that regard. Though the husband had issued a notice to the wife asking her to return to the matrimonial home and had also gone to Disha Mahila Sampudeshan Kendra, Amravati, to secure the company of the wife, the wife has not joined the company of the husband for nearly ten years. The Family Court ought to have considered this aspect of the matter while deciding the petition filed by the husband. The Family Court has, however, erroneously recorded a finding that the wife was compelled to leave the matrimonial home.

12. In the facts and circumstances of the case, the judgment of the Family Court is liable to be set aside. While holding so, we are not inclined to rely on the reported judgments relied on by the learned counsel for the wife. The judgment in the case of Ravi Kumar vs. Julmidevi, (supra) will not apply to the case in hand. There is no doubt about the proposition of law laid down in the judgment in the case of Arundhati Deepak Patil vs. Deepak Bhaurao Patil, (supra) that it would be for the party approaching the Court to prove his case. The burden would no doubt lie on the husband to prove his case of cruelty and desertion by the wife. The judgment in the case of Rajkumar T. s/o Bhaskaran vs. Moljimol K.S. d/o K.P. Sasidharan, (supra) would also not apply to the facts of the case. The husband has given specific instances of cruelty by the wife.

13. Hence, for the reasons aforesaid, the Family Court Appeal is allowed. The judgment of the Family Court is hereby set aside. The marriage solemnized between the appellant – husband and the respondent – wife on 09.05.1999 is hereby dissolved by a decree of divorce under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955. In the circumstances, there would be no order as to costs.
JUDGE JUDGE