IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE

FAMILY COURT APPEAL NO. 28 OF 2013

Rupali Ravindra Jadhav
@ Rupali Ravindra Jadhav
residing at E/7, Micheal Sadan,
Laxmi Udyog Nagar,
Kanjur Marg (West), Mumbai – 400 078. … Appellant

Vs.

Mr. Sachin M. Sawant
G/7, Sai Ganesh Apartment,
B Wing, Sai Baba Nagar,
Bhyander (East), Dist. Thane … Respondent
Mr. Mukesh J. Pabari, Advocate for the Appellant.
Mr. Sachin M. Sawant, Respondent in person present.

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

DATED: 12th December, 2013.

ORAL JUDGMENT :­ (Per Smt. V. K. Tahilramani, J.)

Heard the learned Advocate for the appellant and the respondent who is present in person.

2. The appellant­ Rupali was married to the respondent­ Sachin on 10th May, 2007. It is admitted fact that thereafter the respondent was admitted in the hospital as he was suffering from cancer. On 8th August, 2008, the appellant had left the matrimonial house and did not return back. Thereafter, she filed Petition No. A­1335 of 2010 before the Family Court, Mumbai at Bandra for dissolution of marriage on the ground of cruelty. The Petition came to be dismissed by Judgment and Order dated 9th October,2012. Hence the appellant approached this Court.

3. It is admitted fact that the marriage of the appellant ­Rupali and the respondent­ Sachin took place on 10th May, 2007. Both the appellant and the respondent were related to each other prior to the marriage. They fell in love and there was courtship period of 5 years. Thereafter, they got married on 10th May, 2007. From 8th August, 2008, the parties were separated. No issue is born out of the said wedlock.

4. The appellant sought for dissolution of marriage on the following grounds :­
(a) That the husband and his family members were using abusive words on regular basis.
(b) That the husband and his family members used to torture petitioner mentally and physically.
(c) That the husband treated the petitioner like a slave.
(d) That the husband and his parents did not allow the appellant to meet and talk to her relatives and neighbour.
(e) That the husband was insisting to bring money from petitioner’s father.
(f) That the husband forcefully mortgaged the petitioner’s Stridhan.
(g) That the husband was having habit of excessive drinking.
(h) That the husband had T.B. and Venereal disease.

5. The respondent filed written statement and denied all the contentions raised by the appellant. To prove her claim, the appellant examined herself as PW1 and her sister Prachi as PW2. On the otherhand, the respondent­Sachin has examined himself as DW1. There is no other evidence on record. In her examination­in­chief, the appellant reiterated the contentions of the Petition.

6. The first grievance of the appellant is that the respondent and his family members were using abusive words on regular basis. This according to her caused mental torture. It is pertinent to note that she has not given any details about the date, time and place when the respondent and his family members used abusive words to abuse her. She has not stated who abused her and the words used to abuse her. The further claim of the appellant is that she was physically assaulted for illegal demands. Again, she has not given any details about the date, time and place when she was physically assaulted and role played either by the respondent or any of his family members and the injury sustained by her due to such assault. According to the appellant the respondent and his parents threatened to throw acid and kerosene on her. Though the appellant has made allegations against the parents of the respondent, it is pertinent to note that her sister Prachi has specifically stated that she knew the nature of the parents of the respondent and that they are good by nature. In view of the categorical admission made by Prachi, the sister of the appellant, the averment of the appellant that the respondent and his parents abused her or assaulted her or threatened her does not appear to be true.

7. The appellant has stated that the Respondent and his parents treated her like a slave. During the day the appellant was working so was the Respondent, hence, there is no question of the appellant being treated as a slave during this time. Before the appellant left for office and after she came back from office the parents of the Respondent would be at home and as they were good by nature, they would not treat her like a slave nor allow their son to do so. Thus this contention of the appellant does not appear probable.

8. The next grievance of the appellant is that she was not allowed to meet her parents, family members and neighbours and she was not even allowed to make phone­calls to them. As far as these contentions are concerned, it is admitted that the appellant was working since prior to the marriage and she continued to work after the marriage. In such case, when she used to go to work everyday, it was very much possible for her to make calls to her parents and other persons as well as to meet them on the way to and fro from work. It is also seen that the respondent was working, therefore, during whole day he was busy at his work place and in natural course, there would be no occasion for him to put alleged restriction on the appellant. As stated earlier, Prachi­ sister of the appellant has admitted that the parents of the respondent were good by nature. Therefore, stand taken by the appellant that the respondent and his family members did not allow her to meet her parents, family members and neighbours appears to be improbable.

The appellant has admitted that she was working and getting salary. This shows that she was educated and having financial independence to some extent. If she was working then she was free to call her parents, family members and neighbours and to visit them. As stated earlier respondent was also working, in such circumstances, the averment that she was not allowed to meet her parents and family members and neighbours appears to be improbable.

9. The next grievance raised by the appellant is that the respondent was in habit of excessive drinking. Mere drinking is not sufficient to constitute matrimonial offence unless it is coupled with overtact, which is sufficient to make it difficult for the either party to perform matrimonial obligations. At this stage, it may be stated that the respondent was suffering from cancer. Soon after the marriage, the cancer was detected. In such case, it is not expected that when the respondent was undergoing treatment for cancer and was even admitted in ICU, he would be taking excessive drinks. A person who was undergoing treatment for cancer can hardly continue drinking habit.

10. The further case of the appellant is that when the respondent was admitted in the hospital in ICU due to his cancer ailment, money was demanded from her father to pay for the treatment and she was made to mortgage her Stridhan. It is most unfortunate fact that within two months of the marriage, respondent was diagnosed to be suffering from cancer and he was admitted in ICU. The case of the respondent is that when he was in ICU, the appellant left him. He has further stated that appellant had not bothered to take care of him during such crucial period. It is pertinent to note that Prachi, the sister of the appellant admitted in cross­examination that it is true that her sister i.e. appellant never went to see respondent­Sachin, when he was admitted in ICU and after his discharge. Obviously, when the appellant did not even go to see the Respondent in hospital, there was no question of demanding any money from her. As it is an admitted fact that the appellant never went to see the Respondent when he was in hospital or after his discharge the case that she was made to mortgage her Stridhan does not appear to be probable.

11. It is to be noted that the respondent in his evidence has stated that to buy another house, he had given money to his father­in­law. This averment has remained unshaken in the cross­examination. This shows that in fact the respondent had given money to father of the appellant to purchase a house. In such circumstances, it cannot be believed that the family members of respondent would demand money for treatment or otherwise from the parents of the appellant. Moreover, the appellant has admitted that in the marriage she was given a big Mangalsutra and bangles by the respondent. Looking at these facts, it appears to be improbable that when the respondent was in ICU, money was demanded from her parents to pay for his treatment.

12. According to the appellant the respondent had T.B. This can hardly be a ground to seek divorce. T.B. is not a permanent disease and it is very much curable. Thereafter, the case of the appellant is that the respondent had venereal disease. In relation to this contention it is to be noted that no such averment is made in the petition for divorce. Moreover the petition for divorce is only under section 13(i)(ia) of the Hindu Marriage Act, 1955 that is cruelty and not under section 13(v) of the Hindu Marriage Act, 1955, which cites venereal disease as a ground for divorce. Thus this averment in her evidence before the Court will not help her.

13. It is stated that true test of nature of a person is during adversity. The evidence of the appellant in relation to cruelty is found very vague. Looking at the material aspects of the case, the same is not corroborated by independent and reliable witness. On the contrary, the actual period of cohabitation between the parties was very small i.e. merely two months. When the respondent was suffering from cancer, the appellant left him. This in fact, reveals the true nature of the appellant.

14. The term ‘cruelty’ is not defined, therefore, there cannot be a straight jacket formula for determining whether there is cruelty or not. Each case depends upon its own facts and circumstances. The conduct complained of should be grave and weighty. It should touch a pitch of severity to satisfy the conscience of Court that parties cannot live together with each other any more without mental agony, distress and torture. Keeping in mind the above settled legal principles and after scrutinizing the entire evidence on record. We find that there was not a single incident which can be called as intolerable and was of such nature that it was making it difficult for appellant to continue the matrimonial relations.

15. In matrimonial disputes, first the allegations have to be proved, thereafter question arises whether proved facts are sufficient to constitute cruelty or not. The appellant has failed to prove the allegations itself, therefore, there was no question of cruelty.

16. In the present case, it appears that as soon as appellant came to know that the respondent was suffering from cancer and he was admitted in ICU, appellant left him which is clear from the evidence of her sister Prachi. It appears that the appellant is taking advantage of her own wrong while claiming relief. She has left the company of respondent when he was suffering from cancer. There is nothing in her evidence to show that inspite of all odds, she was ready to continue the relations, however, the conduct of respondent was making it difficult to discharge the matrimonial obligations.

17. On going through the entire evidence on record, in our opinion the appellant has totally failed to prove her case. We find no merit in the Appeal. Appeal is dismissed.

(V.L.ACHLIYA, J.) (SMT V.K.TAHILRAMANI, J.)