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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 128 OF 2009
Phulmala Ajay Singh ….Appellant
Age : Adult, Occ : Nil.
Re/at C/o. Shri. Faujiram Yadav
40 AC/17, Badrinath Colony,
Rajpur, Chungi, Agra
V/s.
Ajay Kumar Singh
Age : 25 years, Occ. Service
R/at. Flat no.403, Bldg. No.03,
James Court, Vimannagar,
Pune, 411 014. ….Respondent
—–
Mr. R.K. Desai, Advocate for the appellant.
Mr. Uday Warunjikar, Advocate for the respondent.
CORAM :- R.M.SAVANT,
SANDEEP K. SHINDE, JJ.
Judg. Resd on :- 5TH JANUARY, 2018.
Judg. Pron. On :- 25TH JANUARY, 2018.
JUDGMENT (PER :- SANDEEP K. SHINDE, J) :
1 This Appeal under Section 19 of the Family Courts
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Act, 1984 is preferred by the wife i.e. the original
respondent against the judgment and decree dated 13 th
October, 2006 passed by the Family Court, Pune in
Petition No. 406 of 2007 whereby the marriage of the
appellant with the respondent was dissolved on the
ground of cruelty and counter-claim of the appellant-wife,
for restitution of conjugal rights was dismissed.
2. The respondent, who is the husband, had filed
Petition No. 406 of 2007 for divorce on the ground of
cruelty. It is the case of the respondent that, soon after
the marriage i.e. 20th April, 2006 wife picked up quarrels
recurringly with him and parents on various counts
which made his life miserable. It is his case that, her
temperament seldom matched with his temperament.
That the stubborn attitude of the wife was found not
compatible with the family traits. It is his case that, she
lived with him in the matrimonial house initially in April,
2006 till 5th June, 2006 and from 2nd September, 2006 till
15th September, 2006. It his case that, on 24th January,
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2007 she broke opened the lock of the matrimonial house
in his absence and in the absence of his parents and again
left for her parents’ house on 15th February, 2007. He
thus pleaded hostile attitude of his wife, eventually all his
efforts to reconcile the differences failed. It is his case
that, upon realising that his wife was not interested to
cohabit with him and having found that her nature and
attitude was not compatible to his nature and having
further realised that, it was not possible to live together,
he had filed a petition on 13th October, 2006 in the Family
Court for dissolution of marriage on the ground of cruelty.
3. He amended his petition on 3rd March, 2008
after notice to wife and brought on record subsequent
events to substantiate the fact that rigid nature and
revengeful attitude of his wife caused cruelty, and in the
given circumstances, it was not possible to live with her.
In other words, the husband sought a decree of dissolution
of marriage on the ground of mental cruelty inflicted by
his wife.
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4. That, in the written statement, the appellant
denied the allegations and contended that, the petitioner
and her in-laws were making unlawful demands though
sufficient dowry was given in lieu of marriage, and
subjected her to harassment. She contended that, she
visited her parents house as her mother was not well.
She contended that, because of continuous harassment by
husband and in-laws, she was left with no choice but to
lodge a complaint against the petitioner and her in-laws
under Section 498A of the Indian Penal Code at Agra, U.P.
She would also contend that, she was interested to cohabit
with the respondent and thus preferred a counter-claim
seeking decree of restitution of conjugal rights.
5. The parties to the petition led oral evidence of
themselves and their respective witnesses. Besides,
parties placed on record, documents in the shape of
complaints to the police, notices issued by the lawyers,
the sale-deed, FIR and such other proceedings initiated
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against the husband under the Domestic Violence Act.
6. The Learned trial Judge after appreciating the
evidence, dissolved the marriage and dismissed the
counter-claim of the wife by the judgment and decree
dated 24th June, 2009. That against the said judgment
and decree, wife has preferred this Appeal.
7. Heard Learned Counsel for the petitioner,
appellant and the respondent. Perused the evidence.
8. The points that arise for consideration are,
(i)Whether the decree of dissolution of marriage
passed by the trial Court, was just and proper ?
(ii)Whether from the facts and circumstances
brought on record by the parties, would it be
reasonable to hold that, the parties would live
together after living apart nearly for eleven
years ? and
(iii)Whether the appellant, wife has made out a
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case for granting the decree of restitution of
conjugal rights.
9. It is an admitted fact that, the appellant lived in
the matrimonial house with the husband for very short
time i.e. initially from 20th April, 2006 to 5th June, 2006;
from 2nd September, 2006 to 15th September, 2006, and
from 24th January, 2007 to 15th February, 2007. It is not
in dispute that since, 15th February, 2007 the appellant is
staying at her parent’s house in U.P. That as such, the
parties are living apart, atleast for 11 years. There is no
issue out of the said wedlock and much water has flown
under the bridge during the period of 12 years.
10. The petition for dissolution of marriage was
filed by the husband on the ground of mental cruelty he
suffered at his wife’s hand.
11. The concept of cruelty in the matrimonial cases
is explained by the Hon’ble Supreme Court in the case of
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V. Bhagat V/s. D. Bhagat, reported in 1994 (1)
SCC page 337 in para-16 as follows :-
“16. Mental cruelty in Section 13(1)(i-a) can
broadly be defined as that conduct which inflicts
upon the other party such mental pain and
suffering as would make it not possible for that
party to live with the other. In other words,
mental cruelty must be of such a nature that the
parties cannot reasonably be expected to live
together. The situation must be such that the
wronged party cannot reasonably be asked to put
up with such conduct and continue to live with
the other party. It is not necessary to prove that
the mental cruelty is such as to cause injury to
the health of the petitioner. While arriving at such
conclusion, regard must be had to the social
status, educational level of the parties, the society
they move in, the possibility or otherwise of the
parties ever living together in case they are
already living apart and all other relevant facts
and circumstances which it is neither possible nor
desirable to set out exhaustively. What is cruelty
in one case may not amount to cruelty in another
case. It is a matter to be determined in each case
having regard to the facts and circumstances of
that case. If it is a case of accusations and
allegations, regard must also be had to the
context in which they were made.”
12. We have gone through the evidence which
unfolded following facts :-
(i)wife left the matrimonial house in June, 2006
and came back in September, 2006. She revisited
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the parents house on 15th September, 2006 and
returned only after a notice issued by the husband.
(ii)On 25th January, 2007 in absence of husband
and his family members, the appellant broke open
the lock of matrimonial house at Pune with the
prior intimation to the police.
(iii)On 13th April, 2007 the father of the appellant,
lodged a complaint against the respondent, his
parents and two brothers under Section 498A of
the Indian Penal Code, at Uttar Pradesh.
(iv)On 3rd November, 2007 the father of the
appellant came to Pune with warrants alongwith
the police in a private jeep.
(v)father of the appellant secured warrants against
the respondent, his father, his two brothers and
mother.
(vi) brother-in-laws of the appellant were students;
one studying at Sangamner and another at Pune
and residing at the respective hostels. The mother
could not be arrested for want of a lady constable.
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Admittedly, at the given point of time, the husband
was not in Pune and therefore he could not be
arrested.
(vii) That, the father-in-law and two brother-in-
laws of the appellant were taken in a jeep from
Pune to Agra by road and were detained in the
police custody for 2-3 days.
(viii)Their custody was taken from Pune house in
presence of the members of the Housing Society.
(ix) The father-in-law of the petitioner was an
Army Personnel.
(x) The respondent-husband was required to
obtain protective order from the High Court in the
proceedings filed against him under Section 498A.
(xi) In the first week of January, 2007 i.e. on 7th
January, 2007 the appellant came to Pune but
having found nobody in the matrimonial house and
under lock, created a scene in the building which
according to the respondent was done intentionally
to damage his image and the image of the family
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amongst the members of the Society.
13. The evidence also disclosed the fact, that in
September, 2006 undivided share of the respondent’s
family in the ancestral land situated at District-Agra,
Uttar Pradesh was purchased by the appellant for the
consideration of Rs.45,000/- by registered deed; however
there is no evidence to show that, such consideration was
actually paid by the appellant, wife. The appellant,
neither denied this fact nor clarified in the cross-
examination, object of buying undivided share soon after
marriage and when and how, she had paid agreed
consideration.
14. The evidence of the husband has disclosed a
fact that, the wife had threatened to commit suicide if she
was not allowed to enter the house and thereafter the
husband had filed a complaint on 13 th March, 2007. On
this point, neither there is cross-examination nor any
evidence led in rebuttal thereto by the appellant or denial
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thereof.
15. A circumstance has surfaced in the evidence of
the husband that, the father of the appellant informed
Yerwada Police Station from Agra that, her daughter was
beaten by the in-laws and in response thereto the Pune
police questioned the father of the respondent. According
to the respondent, husband it was a false complaint and
was done with an intention to bring disrepute to the
family and his dignity.
16. It is disclosed in the evidence of the respondent
that, on 19th February, 2007 his father had gone to Agra
as he had lost his mother. Even on that occasion, the
appellant’s father created a “tamasha” and therefore his
father had gone to Phirozabad at his in-laws house. Even
at that place, the father of the appellant reached with the
lawyer and informed his father that he had acquired
undivided share in the property and threatened that he
would make all efforts to leave him without any property
or means.
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17. The Learned Counsel appearing for the
respondent has culled out the aforesaid circumstances
from the evidence of the parties and thus submitted that
the appellant and her father left no stone unturned to
cause harassment and actually caused it in every possible
manner. He would submit that, his two brothers who
were students and admittedly staying at their respective
hostels, were paraded in a jeep from Pune to Agra and
were detained in the police custody for no fault on their
part and on false accusation of unlawful demand. The
Learned Counsel would submit that, his father who was a
Army Personnel was taken in the same manner from
Pune to Agra under police escort. He would therefore
submit, that the appellant and his family members
intentionally paraded his family members to bring
disgrace and harm their reputation which has left
permanent scar of anguish on their mind. The Learned
Counsel would therefore submit, that the appellant and
her father deliberately did all possible things to humiliate
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his parents and family members, recurringly and
repeatedly.
18. The Learned Counsel for respondent has
strenuously submitted that, the crime under Section
498A was registered after institution of the petition for
divorce and that too in May, 2007. He has taken us
through the complaint dated 14th September, 2006
(Exhibit-58) made by his wife to the police at Pune
making the allegation of demand of dowry and consequent
harassment.
19. We have gone through the said complaint dated
14th September, 2006, as well as, the FIR filed in May,
2007. Admittedly, the FIR has been lodged as a
counterblast to the petition for divorce filed by the
respondent, husband. The wife in her evidence has failed
to give any plausible explanation as to why she did not file
the complaint though allegations were made by her in
September, 2006 for the alleged demand of dowry. In the
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evidence, the appellant did not attribute any role or made
any allegations against her brother-in-laws. There is no
whisper in her evidence or the evidence of her witnesses
that, brother-in-laws had any time subjected her to
harassment. The question, therefore arises is, why the
brother-in-laws were implicated in the case and why they
were paraded in a jeep from Pune to Agra. The only
answer that we could find is that, it was done deliberately
to bring disrepute to the husband and his family members
and to disgrace her father-in-law who was an Army
Personnel.
20. We have also gone through the sale-deed
whereby she has purchased undivided share of
respondents family in ancestral land and the evidence
brought on record by the husband. It is not clarified by
the appellant in her evidence as to what prompted her to
purchase the undivided share in the land of her husband’s
family at Uttar Pradesh. It is the evidence of the husband
that, no consideration was paid but on this point there is
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neither cross-examination nor any evidence brought on
record in rebuttal thereto. Therefore, the fact remains
that, soon after the marriage in September, 2006 a part of
undivided share of husband’s family was transferred in
the name of the appellant. It is another suspicious
circumstance which goes against the appellant, apart
from other circumstances, to hold that, she caused cruelty
to husband.
21. The evidence of the appellant does not even
remotely suggest that, she has made any efforts to
reconcile the differences between herself and her
husband. There is nothing in her evidence to suggest that
since January, 2007, she has made any efforts to go back
to the matrimonial house and cohabit with the
respondent. Infact, the appellant chose to stay at her
parents house since February, 2007 and had lodged a
complaint and filed an FIR against the husband and her
in-laws in May, 2007. All these facts cumulatively lead us
to hold that, the appellant has not made any efforts, much
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less, genuine to reconcile the differences. In fact, the
evidence on record has proved a fact, that in the
revengeful manner, appellant and her family made all
possible efforts to harass the respondent and his family
members.
22. Under Section 13(1)(i-a) of the Hindu Marriage
Act, a marriage can be dissolved by a decree of divorce on
a petition presented either by the husband or by the wife
on the ground that, the other party has, after
solemnisation of marriage, treated the petitioner with
cruelty. The Apex Court in series of judgments has
succinctly stated the meaning and outlined the scope of
the term “cruelty”. Cruelty is evident where one spouse
who has treated the other and manifested such feelings
towards her and him as to cause in her or in his mind a
reasonable apprehension that it will be harmful or
injurious to live with the other spouse. A cruelty may be
physical or mental.
23. In the case of K. Srinivas Rao V/s. D.A. Deepa
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in Civil Appeal No. 1794 of 2013 , the Hon’ble
Supreme Court has indicated certain instances of human
behaviour, which may be relevant in dealing with the
cases of mental cruelty. We have gone through such
instances culled out in para-11 of the said judgment.
24. We have gone through the entire
evidence, oral as well as, documentary led by the parties
in the case in hand. We have hereinabove elaborated each
of the circumstances as have surfaced in the evidence of
the parties. Taking together all the said circumstances,
we are of the view that a sustained course of abusive and
humiliating treatment meted out by the appellant and her
family members to the respondent and his family
members has rendered his life miserable. Herein, the
conduct of the appellant and her father was unjustifiable.
We hold so, because soon after the marriage, within a
span of three to four months, appellant had addressed a
complaint to the police making allegations of illegal
demands or dowry, as could be seen from Exhibit-58
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dated 14th September, 2006. This complaint was not
taken further by the appellant. That even otherwise, we
find the complaint was palpably false because in
September, 2006 undivided share of respondent’s family
property in agricultural land at Uttar Pradesh was
transferred by registered deed in the name of the
appellant for the consideration of Rs.45,000/-. We could
not see any evidence of passing of such consideration by
the appellant to the family of the respondents. This
transaction is not in dispute as evident from the copy of
the registered deed placed on record by the parties. When
we pose a question to the Learned Counsel for the
appellant as to how there could be complaint of unlawful
demand by the wife in September, 2006 (Exhibit-58),
when in the same month, part of a land was transferred
by the family of the respondent to the wife. The Learned
Counsel for the appellant, however, could not satisfy us.
In the circumstances, we are of the considered view tht
the alleged complaint dated 14th September, 2006 was
obviously false on the face of it as both the events i.e. the
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alleged demand and transfer of interest in the land cannot
stand together, simultaneously. We are also unable to
comprehend as to why within a very short span of
marriage, a deed was executed in favour of the appellant.
25. It may also be stated that the respondent filed
a complaint in May, 2007 against the respondent and his
family members under Section 498A. This complaint was
filed at Agra in Uttar Pradesh. The same allegations were
made in the complaint dated 14th September, 2006 at
Pune. The appellant did not pursue the said complaint at
Pune but chose to file a complaint at Agra in April-May,
2007. The complaint under Section 498A was registered
much after the filing of the petition and after counseling
held in the Family Court. Though a chargesheet has been
filed in the said crime and though the case is pending but
taking into consideration the totality of the
circumstances, we have no manner of doubt that the
complaint was a counterblast to the petition filed by the
husband, to humiliate and harass the respondent and his
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family members.
26. The appellant herein has not disputed the fact
that the father and the brothers of her husband were
taken in private jeep under the escort of the police from
Pune to Agra after executing the warrants issued by the
Court for the offence under Section 498A. It is the
evidence of the respondent that, warrants were executed
in the presence of the members of the housing Society and
his father, who is a retired Army Personnel was taken
into custody by the police and paraded till Agra. In our
view, this was an unjustifiable conduct of the appellant
and her father which certainly has affected physical and
mental health of the respondent and his family members.
There was no reason to implicate the brother-in-laws, in
as much as, both were students and were admittedly
residing in their college campus. In evidence, it has also
surfaced that the respondent was required to approach
the Court in Uttar Pradesh for obtaining protective
orders. On the comprehensive appraisal of the evidence
on record, we are of the considered view, that the
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appellant and her father in a most calculative manner
humiliated the respondent and his family with an
intention to cause disrepute to his family. Yet another
circumstance which needs to be discussed is that, the
appellant, in the absence of the respondent or his family
members, broke open the lock of the matrimonial house
at Pune though, it was claimed by her that, it was with the
prior intimation to the police. We were unable to
understand the unusual step taken by the appellant, wife
of breaking upon the lock of her matrimonial house. It
has also come in the evidence that, before opening the
lock she had raised hue and cry in the Society.
Considering the totality of the circumstances, we have no
doubt in our mind that the respondent had suffered a
traumatic experience because of the unusual behaviour of
the appellant and her father and obviously resulted into a
loss of reputation and prestige in the Society.
27. It also appears from the evidence that the
respondent’s father had gone to Agra on 19th February,
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2007 as he had lost his mother. Even on that occasion, at
Phirozabad, the father of the appellant reached with the
lawyer and humiliated him by uttering that, since he had
acquired undivided share in the property, he would make
every efforts to leave him without property or means. In
the evidence, neither the appellant nor his witnesses
denied such assertion of the husband or his witnesses.
. There is yet another piece of evidence which
shows that, the father of the appellant made a phone call
to the Pune Police Station alleging beating by the father-
in-law to the appellant. It appears from the evidence, that
the police visited the house of the respondent enquiring
about the incident. However, the appellant has not placed
anything on record as to what had happened to the
subject complaint and whether that complaint was taken
to a logical end. In the circumstances, we hold that the
appellant and her father lodged complaints with police to
cause continuous harassment to the respondent and his
family members. We therefore hold that the harassment
at the hands of the appellant and her father was and is
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persistent even today since the complaint under Section
498A of the Indian Penal Code is pending at Agra.
28. On consideration of all the circumstances, as
elaborated hereinabove, we hold that sustained
unjustifiable conduct and behaviour of the wife has
affected physical and mental health of the respondent. We
further hold that, the harassment of the respondent and
her family members was persistent. Therefore, we are of
the considered view that the matrimonial bond of the
parties is beyond repair.
29. Admittedly, the parties are living separately
nearly for eleven years and there appears to be no efforts
by the appellant to restore the matrimonial ties. There is
nothing in the evidence even to indicate that the wife has
made any efforts to save her matrimonial life.
30. The Learned Counsel appearing for the
appellant, has also taken us through the impugned
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judgment and submitted that the allegations in the police
complaint about the unlawful demands and consequent
harassment caused by the husband and his relatives is
pending in the Court and until such allegations are
disproved, the allegations itself would not constitute the
ground to claim the divorce. In other words, it was sought
to be suggested that the trial Court ought not to have
taken into consideration the police complaint and the
First Information Report to hold that the complaints were
false and that itself amounts to cruelty.
31. We have hereinabove stated as to why the
complaint on the face of it appears to be a false on the
touchstone of preponderance of probabilities. If the
attending circumstances brought on record by the parties
in their evidence, if suggesting that on preponderance of
probabilities, the complaints lodged with the police are
false, mere pendency of the prosecution is not a ground
for not considering such circumstances in the
matrimonial dispute between the parties.
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32. We have also gone through the evidence of the
appellants. Though, the appellant in many words has not
pleaded condonation as a defence, but in view of the
provisions of Section 23(1)(d), it is the Court’s duty to
find whether the conduct of the Appellant enumerated to
cruelty. The evidence on record shows that, she lived
with the husband for a very short period and admittedly
since February, 2007 she is residing with her parents
house at Agra. That there is nothing on record to indicate
that the respondent, husband has condoned either of the
objectionable acts of the appellant and her father. Be that
as it may, the fact remains, the prosecution under Section
498A is still pending and further there is nothing on
record to indicate that the appellant has made any efforts
to reconcile the differences or to compromise the disputes
by filing any application in the Court where Section 498A
proceedings are pending. The fact cannot be ignored that
the parties are living apart for nearly eleven years and
there are no issues out of the said wedlock.
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33. In our view considering the facts and
circumstances of the case and the evidence on record, no
interference is called for with the judgment and decree
passed by the trial Court. Points are answered
accordingly. Resultantly, the Appeal is dismissed. The
decree be drawn accordingly.
(SANDEEP K. SHINDE, J) (R.M. SAVANT, J)
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