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VPH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL No. 89 OF 2009
WITH
CIVIL APPLICATION No. 308 OF 2015
Mr. Ajay Ramrao Chavan … Appellant
Vs.
Mrs. Sampada Ajay Chavan … Respondent
***
Smt. Seema Sarnaik, for the Appellant.
Mr. Shashank Mangle, for the Respondent.
***
CORAM : A. A. SAYED,
MANISH PITALE, JJ.
RESERVED ON : OCTOBER 6, 2017
PRONOUNCED ON: OCTOBER 12, 2017
JUDGMENT : [Per : MANISH PITALE, J.]
1. The Appellant – husband had filed a petition before the
Family Court at Pune, seeking divorce from the Respondent – wife
under Section 13 (1)(i-a) of the Hindu Marriage Act, 1955 (hereinafter
referred to as “the Act”) on the ground of the Respondent having
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inflicted mental cruelty upon him. By the impugned judgment and
order dated 17.1.2009, the Family Court Pune has found that the
Appellant has failed to prove cruelty, and therefore, the divorce
petition filed by the Appellant has been dismissed. By the instant
appeal, the Appellant has challenged the said judgment and order of
the Family Court, claiming that there was sufficient material and
evidence placed on record to prove the mental cruelty inflicted upon
him by the Respondent – wife, and that a decree of divorce was
required to be passed in the facts and circumstances of the case.
2. The marriage between the Appellant and the Respondent
took place on 6.5.2006 and the Respondent joined the matrimonial
house at Hadapsar in Pune, where the parents of the Appellant were
residing. It is claimed by the Appellant that the Respondent was not
happy while living with his parents in the same house and this resulted
in friction between the two. Yet, the Appellant and the Respondent
continued living together with the parents of the Appellant in the
matrimonial house at Pune.
3. On 26.2.2007 the Respondent gave birth to a male child
at Kolhapur, where her parents live. On 8.3.2007, less than a month
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from the birth of the child, the Appellant issued a legal notice to the
Respondent claiming that she was of a quarrelsome nature, due to
which he and his parents had suffered immense mental and physical
torture. The Appellant stated that in this situation, he had no desire to
continue living with the Respondent. On 29.3.2007 the Respondent
sent a short reply to the said legal notice stating that she had recently
delivered the child and that in such a situation she was pained to
receive the said legal notice. She denied all the allegations made in the
legal notice and reserved her right to state complete facts as and when
situation arose.
4. It has been stated on record by the Appellant that the
Respondent – wife alongwith the child came from Kolhapur to the
matrimonial house on 12.9.2007 and continued to reside at the said
house with the parents of the Appellant. During this period, it appears
that there were differences of opinion between the Appellant and the
Respondent leading to quarrels. As a result, there were meetings held
between the elders and well wishers of both sides to make an attempt
to find a solution.
5. On 27.9.2007 the Appellant filed the divorce petition
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before the Family Court at Pune praying for dissolution of the
marriage under Section 13(1)(ia) of the said Act. It is significant to
mention that the main ground, stated in the said petition while alleging
cruelty against the Respondent, was that she was insisting upon a
separate residence because she had no desire to live with parents of
the Appellant. This ground is absent in the legal notice dated 8.3.2007
sent by the Appellant. It is also relevant to mention that although the
Respondent was staying in the matrimonial house with the Appellant
when the divorce petition was filed, her address in the petition was
wrongly shown as that of Kolhapur.
6. On 25.5.2008 the Appellant left the matrimonial house
and only the Respondent with minor child and the parents of the
Appellant remained in the matrimonial house. In the meantime, the
elder brother of the Appellant sent a letter to him in an envelope
addressed to the Respondent. In this letter it was claimed that the
matrimonial house belonged to the elder brother and that it had been
given to the Appellant when he was bachelor. Now, he was married
and parents of the Appellant were suffering due to the behaviour of the
Respondent. It was claimed that the Appellant was required to vacate
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the house. On 16.7.2008 the Respondent sent a legal notice to the
Appellant stating that the said letter was manipulated and that its
contents were false. She stated that the Appellant was deliberately
seeking to manipulate the record so as to create a false impression
about the Respondent. On 28.7.2008 the Appellant sent a reply notice
to the advocate of the Respondent. All these developments took place
during pendency of the said divorce petition. Thereafter, on 14.8.2008
the parents of the Appellant left the matrimonial house, as a result of
which the only Respondent and the minor child remained in the house.
7. On 22.9.2008 the Respondent filed her written-statement
denying allegations made against her and she stated that all through
her stay in the matrimonial house, she had been willing to live with
parents of the Appellant and she further stated that allegations
regarding demand of separate residence were absolutely false. She
also denied that she had threatened to implicate the Appellant and his
parents by instituting criminal proceedings for the offence punishable
under Section 498-A of the Indian Penal Code (IPC). In the written-
statement, Respondent gave details of eight meetings that were held in
respect of the disputes between the parties and with a view to finding a
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solution to the same. It was stated by the Respondent that the
Appellant somehow wanted to get rid of her and that the divorce
petition deserved to be dismissed.
8. The Appellant entered in the witness box in support of his
petition and produced his mother as witness on his behalf. On the
other hand, Respondent appeared in the witness box to support her
case and two more witnesses were produced, viz. Dinkar Patil and
Kumar Patil, on her behalf to depose in respect of the meetings
conducted to resolve the dispute between the parties. The evidence of
Kumar Patil was not taken into consideration by the Family Court
because the said witness was not available for cross-examination. The
evidence of Dinkar Patil was therefore, the only evidence other than
that of the Respondent to support her case.
9. Upon recording of evidence and hearing arguments on
behalf of the parties, on 17.1.2009, the Family Court delivered the
impugned judgment and order. The Family Court found that the main
allegation made by the Appellant against the Respondent regarding
insistence of separate residence appeared to be an afterthought
because the same did not find mention in the legal notice dated
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8.3.2007 issued on behalf of the Appellant. Apart from this, the
Family Court found that there was insufficient evidence on record to
prove the case of cruelty, sought to be made out by the Appellant. The
evidence of the mother of the Appellant was discarded, as she was
found to be an interested witness. It was also found that there was
enough material to show that it was the Appellant, who was
responsible for the quarrels and that evidence of the independent
witness Dinkar Patil demonstrated that the Appellant wanted to have
divorce under any circumstances. The Family Court also referred to
Section 23(1)(a) of the said Act to hold that Appellant was not entitled
to take benefit of his own wrong, and for this reason, the Family Court
dismissed the divorce petition filed by the Appellant. Aggrieved by
the same, the Petitioner – husband has filed the present appeal.
10. There are certain subsequent developments and orders
passed by this Court, that are relevant in the present case. In fact, it
has been contended on behalf of the Appellant that the aforesaid
subsequent events show that Respondent has continued to inflict
cruelty upon the Appellant. Hence, a reference to the said
developments is also being made. On 15.6.2009 this Court issued
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notice in the appeal and on 4.9.2009 an order was passed recording
that the Appellant and the Respondent had decided to go back together
and assured the Court to stay peacefully, to try to settle their disputes.
On 11.9.2009 this Court recorded in its order that parties were staying
together happily in the matrimonial home and that they were going
back together. This fact of the parties residing together was also
recorded by this Court on 16.11.2009, and by order dated 18.1.2010
parties were referred to marriage counselor in Pune. The order dated
18.1.2010 records that the Appellant could not make up his mind to
take the Respondent and the child back home, despite the fact that
they were staying together. But, when a failure report was received
from the counselor, this Court by order dated 15.3.2010 recorded that
there was no alternative but to fix the matter for hearing on merits.
Thereafter, on 12.4.2010 this Court passed an order permitting the
Appellant to withdraw from the company of the Respondent. This
Court, recorded that during pendency of the instant appeal the parties
stayed together from September, 2009 to April, 2010. On 16.8.2010
the instant appeal was admitted and a separate order was passed
regarding the amount of maintenance, to be paid by the Appellant to
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the Respondent and the minor child. In this order, it was recorded that
the Respondent had misled this Court regarding her status of
employment and that therefore, only an amount of Rs. 4,000/- per
month was granted to her towards the rent for accommodation that she
would require in the city of Kolhapur and a direction was given to the
Appellant to pay a further amount of Rs. 3,000/- per month for
expenses of the minor child. Thereafter, by an order dated 7.12.2010,
this Court rejected the further application filed by the Respondent for
enhancement of the maintenance, observing in para 6 thereof that the
opinion recorded by this Court in the order dated 16.8.2010 would not
influence outcome of this appeal and it shall be decided on its own
merits.
11. During pendency of the appeal, the Respondent shifted
back to Pune from Kolhapur, and therefore, the Appellant was no
longer required to pay amount of Rs. 4,000/- per month towards rent
for accommodation at Kolhapur. It is undisputed that the Appellant
has continued to pay the amount of Rs. 3,000/- per month for the
expenses of the minor child. It is stated that he has also paid certain
amounts towards buying toys and necessities for the child.
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12. On 24.7.2017, an affidavit was filed on behalf of the
Appellant, placing on record copies of orders of this Court passed in
various civil applications filed by the parties. Certain other
documents, including transcripts of SMSs exchanged between the
parties, have also been placed on record. It is contended on behalf of
the Appellant that these documents demonstrate that the Respondent
has continued to inflict cruelty upon the Appellant. The contents of
the said affidavit have been denied on behalf of the Respondent.
13. We have heard the learned counsel appearing for the
respective parties. Learned counsel Mrs. Seema Sarnaik appearing for
the Appellant has submitted that the Family Court has committed a
grave error in holding that the Appellant has failed to prove cruelty. It
is contended that demand of separate residence by the Respondent and
the continued harassment meted out by her to the Appellant and his
parents, was evident from the material on record. It was also
contended that the Family Court committed grave error in applying
Section 23(1)(a) of the said Act to the facts of the present case, and
further that the material placed on record viz. the affidavit dated
24.7.2017 filed on behalf of the Appellant demonstrated that the
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Respondent was stubborn in nature and that she had continued to
inflict cruelty on the Appellant, even during pendency of the instant
appeal. The learned counsel appearing for the Appellant placed
reliance on the judgments of this court in the cases of – (i) Avinash
Eknath Nikalje, Appellant Vs. Leela Avinash Nikalje, Respondent 1 and
(ii) Yogesh Sonawane, Appellant Vs. Sou. Jyostna Sonawane2. The
learned counsel also relied upon judgments of the Hon’ble Supreme
Court in the cases of – (i) V. Bhagat, Appellant Vs. D. Bhagat (Mrs.),
Respondent3; (ii) Dr. (Mrs.) Malathi Ravi, M. D., Appellant Vs. Dr. B.
V. Ravi, M. D., Respondent4; and (iii) Manisha Tyagi, Appellant Vs.
Deepak Kumar, Respondent5.
14. The said judgments have been relied upon by the learned
counsel appearing for the Appellant to contend that demand of
separate residence amounts to cruelty, and that subsequent events after
passing of the order by the Family Court can also be taken into
consideration. Further that the position of law has undergone a change
as now it is no longer necessary that apprehension of physical violence
1 AIR 2003 Bom. 244
2 Family Court Appeal No. 353 / 2014, dated 7.4.2015
3 (1994) 1 SCC 337
4 AIR 2014 Supreme Court 2881
5 AIR 2010 Supreme Court 1042
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is required to establish cruelty, but that it would be sufficient to show
that conduct of one of the spouses is so abnormal and below the
accepted norm that the other spouse cannot reasonably be expected to
put up with it.
15. On the other hand, learned counsel Mr. Shashank
Mangle, appearing for the Respondent has submitted that the
judgment and order passed by the Family Court in the present case is
justified because the basic contention regarding demand of separate
residence by the Respondent was clearly an afterthought. The
Appellant wanted to somehow give divorce to the Respondent, and
therefore, he made up the aforesaid grounds for divorce. This was
obvious because such contention regarding demand of separate
residence was not mentioned in legal notice dated 8.3.2007, issued on
behalf of the Appellant. It was further contended that even mother of
the Appellant has nowhere stated in her evidence that Respondent had
driven out the parents of the Appellant. On the contentions raised on
behalf of the Appellant concerning the subsequent conduct during
pendency of the appeal, the contents of the affidavit of the Appellant
dated 14.7.2017 have been stoutly denied and it has been stated that
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the observations, made in orders passed in civil applications by this
Court, were only prima facie in nature and that they would not
adversely affect merits of the appeal. The learned counsel appearing
for the Respondent further contended that the Appellant had been
making payments of certain amounts over and above the amount of
Rs. 3,000/- per month, though only amount of Rs. 3,000/- was directed
to be paid to the Respondent and that this demonstrated that
relationship between the parties was not dead. It was emphatically
stated that the Respondent even now is ready to cohabit with the
Appellant and his parents.
16. In this backdrop, following points arise for our
determination in this appeal:
Points Findings
1. Whether the impugned judgment
and order passed by the Family
Court, in the facts and
circumstances of the present case
dismissing the divorce petition, was In the
justified? affirmative.
2. What order? Appeal is
dismissed
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Reasons
17. Before embarking upon analysis of the facts, evidence
and material on record in the present case, it would be appropriate to
refer to the law concerning definition of cruelty under Section 13(1)
(ia) of the said Act. It has been held by the Hon’ble Supreme Court
that a comprehensive definition of the concept of mental cruelty
cannot be given, considering that the human mind is extremely
complex and human behaviour is equally complicated. But, certain
aspects of the concept of mental cruelty can be identified. In the case
of Samar Ghosh Vs. Jaya Ghosh6 the Hon’ble Supreme Court has held
as follows:
“98. On proper analysis and scrutiny of the judgments
of this Court and other Courts, we have come to the
definite conclusion that there cannot be any
comprehensive definition of the concept of ‘mental
cruelty’ within which all kinds of cases of mental
cruelty can be covered. No court in our considered view
should even attempt to give a comprehensive definition
of mental cruelty.
99. Human mind is extremely complex and human
behavior is equally complicated. Similarly human
ingenuity has no bound, therefore, to assimilate the
entire human behavior in one definition is almost
impossible. What is cruelty in one case may not amount
6 2007 (4) SCC 511
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to cruelty in other case. The concept of cruelty differs
from person to person depending upon his upbringing,
level of sensitivity, educational, family and cultural
background, financial position, social status, customs,
traditions, religious beliefs, human values and their
value system.
100. Apart from this, the concept of mental cruelty
cannot remain static; it is bound to change with the
passage of time, impact of modern culture through print
and electronic media and value system etc. etc. What
may be mental cruelty now may not remain a mental
cruelty after a passage of time or vice versa. There can
never be any straitjacket formula or fixed parameters for
determining mental cruelty in matrimonial matters. The
prudent and appropriate way to adjudicate the case
would be to evaluate it on its peculiar facts and
circumstances while taking aforementioned factors in
consideration.
101. No uniform standard can ever be laid down for
guidance, yet we deem it appropriate to enumerate some
instances of human behavior which may be relevant in
dealing with the cases of “mental cruelty”. The
instances indicated in the succeeding paragraphs are
only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of
the parties, acute mental pain, agony and suffering as
would not make possible for the parties to live with
each other could come within the broad parameters of
mental cruelty.
(ii) On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes abundantly
clear that situation is such that the wronged party cannot
reasonably be asked to put up with such conduct and
continue to live with other party.
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(iii) Mere coldness or lack of affection cannot amount
to cruelty, frequent rudeness of language, petulance of
manner, indifference and neglect may reach such a
degree that it makes the married life for the other spouse
absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of
deep anguish, disappointment, frustration in one spouse
caused by the conduct of other for a long time may lead
to mental cruelty.
(v) A sustained course of abusive and humiliating
treatment calculated to torture, discommode or render
miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behavior of
one spouse actually affecting physical and mental health
of the other spouse. The treatment complained of and
the resultant danger or apprehension must be very
grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard
of conjugal kindness causing injury to mental health or
deriving sadistic pleasure can also amount to mental
cruelty.
(viii)The conduct must be much more than jealousy,
selfishness, possessiveness, which causes unhappiness
and dissatisfaction and emotional upset may not be a
ground for grant of divorce on the ground of mental
cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and
tear of the married life which happens in day to day life
would not be adequate for grant of divorce on the
ground of mental cruelty.
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(x) The married life should be reviewed as a whole
and a few isolated instances over a period of years will
not amount to cruelty. The ill-conduct must be persistent
for a fairly lengthy period, where the relationship has
deteriorated to an extent that because of the acts and
behavior of a spouse, the wronged party finds it
extremely difficult to live with the other party any
longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of
sterilization without medical reasons and without the
consent or knowledge of his wife and similarly if the
wife undergoes vasectomy or abortion without medical
reason or without the consent or knowledge of her
husband, such an act of the spouse may lead to mental
cruelty.
(xii) Unilateral decision of refusal to have intercourse
for considerable period without there being any physical
incapacity or valid reason may amount to mental
cruelty.
(xiii)Unilateral decision of either husband or wife after
marriage not to have child from the marriage may
amount to cruelty.
(xiv)Where there has been a long period of continuous
separation, it may fairly be concluded that the
matrimonial bond is beyond repair. The marriage
becomes a fiction though supported by a legal tie. By
refusing to sever that tie, the law in such cases, does not
serve the sanctity of marriage; on the contrary, it shows
scant regard for the feelings and emotions of the parties.
In such like situations, it may lead to mental cruelty.”
18. It has been further held by the Hon’ble Supreme Court in
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the case of – Ramchander, Appellant Vs. Ananta, Respondent7, that the
aforesaid instances of mental cruelty given in the judgment of Samar
Ghosh (supra) are only illustrative and not exhaustive. Therefore, it is
clear that no straitjacket formula regarding the concept of mental
cruelty can be discerned, but the instances given in the judgment of
Samar Ghosh (supra) by the Hon’ble Supreme Court are guiding
principles for deciding the cases involving one spouse inflicting
mental cruelty on the other.
19. In the present case, the facts that emerge on record show
that the Appellant and the Respondent were married in May 2006 and
that the first document showing conflict between them was a legal
notice dated 8.3.2007 sent by the Appellant to the Respondent. This
document assumes great significance in the present case because it
shows as to what the Appellant considered reasons for his inability to
continue to live in matrimonial life with the Respondent. Perusal of
the said legal notice at Exhibit 20 shows that the Appellant found
Respondent to be extremely stubborn and quarrelsome in nature. It is
further stated in the notice that the Appellant and his parents have
7 (2015) 11 SCC 539
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suffered immense physical and mental harassment at the hands of the
Respondent due to her quarrelsome and intransigent nature. On this
basis, it is claimed by the Appellant that he is unable to continue
marital life with the Respondent.
20. The said legal notice dated 8.3.2007 demonstrates that
there were certain temperamental differences between the Appellant
and the Respondent. This could qualify as irritation and general wear
and tear in married life. The differences of opinion between the wife
and parents of the husband can occur because she is a new person in
the family. It is crucial that in this legal notice dated 8.3.2007, there is
absolutely no mention of demand of separate residence by the
Respondent and that such demand was causing harassment to the
Appellant and his parents. It is also significant that the said legal
notice dated 8.3.2007 is sent by the Appellant in less than 15 days of
the Respondent having delivered the child at Kolhapur. In fact, in her
reply dated 29.3.2007 the Respondent has mentioned this fact.
21. Perusal of the divorce petition, evidence of the Appellant
and that of his mother show that the whole case of harassment and
cruelty is based on the alleged demand of separate residence by the
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Respondent. The absence of such statement in the aforesaid legal
notice dated 8.3.2007 clearly shows that the said ground of demand of
separate residence was clearly an afterthought. Apart from the said
aspect, the evidence regarding the alleged quarrelsome nature of the
Respondent is of a very general nature and no specific instances of
violence or unacceptable behaviour of the Respondent – wife were
brought on record. There was only a mention made of alleged threats
given by the Respondent to initiate criminal proceedings against the
Appellant and his parents under Section 498-A of the I P C. In fact, no
such complaint was ever filed by the Respondent.
22. The evidence of an independent witness, viz. Dinkar
Patil, is significant in this context. He was the person present in one of
the meetings dated 1.10.2006 wherein an attempt for reconciliation
was made. The said witness has stated that when the Appellant was
asked as to what harassment he had suffered, the Appellant stated that
he had not suffered any harassment and that he simply wanted divorce.
When the said witness tried to reason with the Respondent, he
abruptly left the meeting. In the cross-examination of this witness, the
only thing that is revealed is that he had been a friend of the father of
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the Respondent. This cannot be a factor to discredit the evidence of
said witness because meetings for reconciliation are generally
conducted in the presence of well wishers of both the parties.
23. Perusal of the orders passed by this Court in various civil
applications during pendency of the appeal show that a serious attempt
was made by the parties to live together and that they did live together
between September 2009 to April, 2010. The contention raised on
behalf of the Appellant that conduct of the Respondent during
pendency of the appeal demonstrates continuing cruelty, is not
substantiated by the material on record. The only adverse observation
made against the Respondent is in the order dated 16.8.2010 wherein
it has been observed by this Court that the Respondent has misled the
Court as regards her status of employment. But this resulted in the
Respondent being denied payment towards maintenance. In fact, in the
subsequent order dated 7.12.2010 this Court specifically observed that
the opinion expressed in the order dated 16.8.2010 would not
influence the merits of the present appeal.
24. Applying the position of law, as elucidated by the
Hon’ble Supreme Court in the above referred judgments, to the facts
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of the present case, it is evident that the Appellant has failed to show
that conduct of the Respondent is so abnormal and below acceptable
norms that the Appellant cannot reasonably be expected to put up with
it. It appears from the material on record that there were
temperamental differences between the Appellant and the Respondent,
but only this factor cannot entitle the Appellant for a decree of
divorce. We find that the Family Court is justified in holding that the
ground of separate residence claimed by the Appellant, as the basis for
cruelty, was an afterthought and that the Appellant failed to prove that
he was entitled to a decree of divorce under Section 13 (1) (i-a) of the
said Act. As a result, the reliance placed by the learned counsel
appearing for the Appellant on judgments of the Hon’ble Supreme
Court and this Court wherein demand of separate residence has been
held to be amounting to cruelty, is misplaced and do not support the
case of the Appellant.
25. As regards the judgment of the Hon’ble Supreme Court
in the case of Dr. (Mrs.) Malathi Ravi (supra) relied upon by the
learned counsel appearing for the Appellant to contend that subsequent
conduct and events concerning the Respondent should also be taken
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into consideration for analysing whether she has inflicted cruelty upon
the Appellant, a perusal of the said judgment would show that it has
been held that subsequent facts under certain circumstances can be
taken into consideration. As to whether the circumstances of the
present case justify taking into consideration the subsequent facts,
needs to be appreciated, but, even if it is held that the subsequent facts
must be taken into consideration, we find that conduct of the
Respondent, emphasised by the Appellant during pendency of the
appeal, is not of such a character that any inference can be drawn
regarding cruelty or continuing cruelty inflicted upon the Appellant. It
is during the course of applications made by both the parties in the
pending appeal that certain orders have been passed, wherein
observations have been made by this Court, but by no stretch of
imagination, it can be said that any inference of cruelty can be drawn
against the Respondent.
26. The submission made on behalf of the Respondent
concerning Section 23(1)(a) of the said Act to the effect that Appellant
could not be said to have taken advantage of his own wrong, needs to
be appreciated on the basis of material that has come on record.
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Strictly speaking, Section 23(1)(a) of the said Act may not be
applicable in the present case because Family Court has come to a
conclusion that the Appellant failed to make out a case of cruelty for
seeking divorce. The said provision would be applicable if an
affirmative finding is rendered by the Court, and then it is found that
the Petitioner is seeking to take advantage of his / her own wrong. To
that extent, the submission regarding non-applicability of the said
provision may be correct. The Family Court appears to have been
anguished by the fact that the Appellant had behaved in a manner that
caused pain to the Respondent, particularly when he issued the legal
notice dated 8.3.2007 to her, which was less than 15 days from the
date when she delivered the child. It appears that the Family Court
found the overall conduct and behaviour of the Appellant
unacceptable, leading to its finding on issue No. 2 before the Family
Court.
27. In any case, the Family Court had come to a considered
conclusion that the Appellant had not made out his case of cruelty
under Section 13 (1) (i-a) of the said Act while dismissing the divorce
petition. We find that the conclusions rendered by the Family Court
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are based on correct appreciation of the evidence and material on
record and none of the findings can be said to be perverse. An attempt
was made on behalf of the Appellant to demonstrate that there was
nothing left in the marriage with passage of time and that the
Appellant was in no state of mind to take back the Respondent and the
minor child to his home. We feel that this cannot be a factor to decide
the fate of the divorce petition, filed by the Appellant. He came to the
Court with a specific case of mental cruelty being inflicted by the
Respondent on him. But he has failed to prove his case on the basis of
evidence and material on record. We find from the record that between
September 2009 to April 2010 the parties did stay together with the
minor child under orders of this Court and even during this period it
was recorded in the order dated 18.1.2010 that the Appellant could not
make up is mind to take the Respondent and child to his home. The
record shows that the Appellant was intensely desirous of having
divorce, but he has failed to make out the case with which he has
approached the Court.
28. A feeble attempt was made by the counsel appearing on
behalf of the Appellant to claim that an adverse inference needs to be
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drawn against the Respondent that there was no sincerity in her
statement about her desire to cohabit with the Appellant and his
parents even today, because she did not file any application under
Section 9 of the said Act for restitution of conjugal rights. The said
submission made on behalf of the Appellant is wholly without any
substance because it cannot be held that the divorce decree as prayed
for by the Appellant deserves to be granted only because the
Respondent – wife failed to file an application for restitution of
conjugal rights.
29. Thus, on considering the contentions raised on behalf of
both the parties and on perusal of the record, we find that the
judgment and order passed by the Family Court dismissing the divorce
petition of the Appellant is justified and that there is no merit in the
present appeal. Point No. 1 is therefore, answered in the affirmative.
Accordingly, appeal is dismissed with no order as to costs.
30. In view of dismissal of the appeal, Civil Application No.
308 of 2015 filed therein does not survive and is therefore disposed of.
Sd/- Sd/-
[MANISH PITALE, J.] [A. A. SAYED, J.]
Vinayak Halemath
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