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Dr. Sanotsh Shetty vs Mrs. Ameeta Santosh Shetty on 18 March, 2020

Basavraj
G. Patil
Digitally signed by
Basavraj G. Patil 113.14-fca.odt
Date: 2020.03.18
15:54:43 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION

Family Court Appeal No.113/2014
with
Cross Objection (ST) No.24362/2014

Dr. Santosh Shetty
Age – 40 yrs., Occupation : Doctor,
r/o. 55/56, “A” Wing,
Dewas Garden CHS, Ambadi Road,
Vasai (West), ….. Appellant
Thane – 401 202 (Ori. Petitioner)

Vs.

Mrs. Ameeta Shetty
Age – 38 yrs., Occu : Fasion Designer,
c/o. Raghuram Shetty,
Gangadeep Society, Near Hotel Chenab
Sagar Vihar Lane, Vashi, ….. Respondent
New Mumbai. (Ori. Respondent)

Mr. Rajiv Chavan, Senior Advocate a/w. Smt. Priyanka
Chavan and Mr. Atul Mankame I/b. Mahesh Thorat for the
Appellant
Mrs. Ameeta Shetty, Respondent in-person.

CORAM: K.K.TATED
SARANG V. KOTWAL,JJ.

RESERVED ON : 23 rd JANUARY 2020
PRONOUNCED ON : 18 th MARCH 2020

JUDGMENT : (PER : K.K.TATED,J.)

1 Heard the learned senior counsel for the Appellant
and the Respondent in-person.

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2 The matter was closed for orders on 23.01.2020,

permission was granted to both the parties to file their
written submissions, if any, pursuant to which, both the
parties have filed their written submissions in the Registry
on 21.02.2020.

3 By this Family Court Appeal, the Appellant challenges
the judgment and decree dated 25.11.2013 filed by the
Family Court, Mumbai at Bandra in Petition No.A-
2330/2007 dismissing the Appellant’s petition u/s.13(1)
(ia)(ib) of the Hindu Marriage Act, 1955 on the ground of
cruelty and desertion.

4 The Respondent wife also filed cross objection, mainly
on the ground of maintenance.

5 During the pendency of the Family Court Appeal, the
Applicant had filed Civil Application No.73/2017 for
carrying out amendment by adding the ground in appeal
memo, as per the schedule of amendment annexed to the
Civil Application. This court, by order dated 16.08.2019 had
allowed the said application and permitted the Applicant to
carry out amendment. Pursuant to the said amendment,
the Appellant has alleged that, the Respondent has filed
false and fabricated complaint against the Appellant and his
family members, alleging that they have caused cruelty to
her u/s.498A, 406 read with section 34 of the Indian Penal
Code, a case bearing RCC No.1053/2009, was tried by the
Judicial Magistrate, F.C., Belapur. The said complaint was
decided by the Learned Metropolitan Magistrate by order
date 07.03.2016 and acquitted the Appellant as well as his

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family members. The Appellant has also placed on record,
by way of the amendment, a copy of order dated 07.03.2016
passed by the Judicial Magistrate, F.C., dismissing RCC
No.1053/2009 u/s.498A, 406 read with Section 34 of the
Indian Penal Code. The learned Metropolitan Magistrate, in
his order dated 07.03.2016 on point No.2 recorded that the
Respondent has failed to prove that the Appellant had
misappropriated the Respondent’s jewellery and Stridhan
to the extent of Rs.27,35,000/- (Twenty Seven Lacs Thirty
Five Thousand only). English translation of paragraph 31 of
the said order, reads thus:

“31. As mentioned above as per the submissions of
the complainant party accused have committed
misappropriated of Stridhan/ornaments worth
Rupees 27,35,000/- of the complainant. Even though
complainant could not proved as accused have taken
out Stridhan/ornaments of the sum of Rs.27,35,000/-
from her this fact cannot be proved due to absence of
important document papers. Similarly in the cross-
examination of complainant she admit that, she had
filed return of articles application in the month of
February 2008 to the divorce application filed by
accused NO.2 even though no Stridhan/ornaments list
was attached to that application. Under such situation
accused have committed conspiracy of complainant’s
Stridhan i.e. committed conspiracy of gold-silver
ornaments total worth Rs.27,35,000/- due to absence
of evidence could not proved. Hence my answer to
issue No.2 is record in negative.”

The Apex Court, in the matter of Vishwanath Agrawal
s/o. Sitaram Agrawal Vs. Sarla Vishwanath Agrawal (2012)
7 SCC 288 held that the subsequent events can be
considered at the time of final hearing.

6 The learned senior counsel for the Appellant submits

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that, the Appellant married to the Respondent as per Hindu
Rites on 17.03.2002. A girl child viz. Saraya was born on
28.06.2003 from the wed-lock. He submits that for some
time, the married life between the Appellant and the
Respondent was smooth, but in June 2003 the Respondent
had started harassing the Appellant mentally, abusing and
treated the Appellant with cruelty on financial matters and
for separate accommodation. He submits that on
25.10.2004 for non fulfillment of her demand, the
Respondent left the matrimonial home along with minor
daughter and started residing with her father. He submits
that between 25.10.2004 to 23.05.2007 the Appellant
made several attempts to bring the Respondent back to the
matrimonial home, but she refused to come only on the
ground that, she wants separate accommodation. He
submits that after mediation by elder family members, the
Respondent returned to her matrimonial home on
23.05.2007 but denied the marital relations to the
Appellant.

7 The learned senior counsel for the Appellant submits
that some time in August 2007, the Appellant’s family had
shifted to a rented premises at Mira Road, Mumbai. He
submits that, as the Respondent hails from a very rich
family, she refused to shift to Mira Road premises and again
deserted the Appellant on 15.10.2007 and returned to her
parents’ home along with her daughter. Thereafter from
October 2007 to November 2007 the Appellant made all
efforts for the Respondent’s return, but they were in vain.

Thereafter the Appellant filed divorce petition on

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13.11.2007 on the ground of cruelty and desertion. He

submits that thereafter the Respondent wife also filed FIR
with Vashi Police Station on 18.02.2009 u/s.498A and 406
of the Indian Penal Code against the Appellant, his parents
and other family members. The learned Metropolitan
Magistrate, Belapur Court by the order dated 07.03.2016
acquitted all the parties (accused) in that case. He submits
that said order is final, because there is no Appeal and/or
Revision.

8 The learned senior counsel for the Appellant submits
that the Respondent, from time to time used to abuse the
Appellant on his character, relationship with other family
members, relatives etc. He submits that the Respondent
used to harass the Appellant’s parents. She never used to
do any house work. She always wanted a separate
accommodation. Not only that she used to spend money
which was beyond the capacity of the Appellant. He submits
that the Respondent used to insult the Appellant in front of
the relatives of the Appellant as well as her relatives also.
He submits that these facts were narrated by the Appellant
in his petition for divorce, which are as under:

“5. The Petitioner states that, during their
courtship period i.e. one month, both of them could
not meet each other. But, they had a regular
telephonic conversation, wherein gradually he
realised that the Respondent had a very high
expectation of life, as she came from a very rich
family. She insisted him to have a car of his own to
commute for his convenience. At that time, he tried to
convince her that for the car, he do not have any hard
cash and could not afford the same at that time. But
she could convince him to take a car on loan and

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insisted for Ford Ikon. Accordingly, he took loan from
Standard Chartered Bank and booked a Ford Ikon car
for him. Thereafter, she started planning for their
honeymoon trip and insisted for International Trip, as
he had suggested for domestic trip. Thereafter, she
started insisting for Seven Star Hotel for their first
night. At that time, he had a talk with his parents
regarding her high expectations and insistence. But
at that time, since everything was fixed earlier, his
parents agreed for the same for his happiness and
helped him financially. Accordingly, he booked
Maratha Sheraton Presidential Suit Room for their
first marriage.”

“6. The Petitioner states that, after the marriage
since the Respondent had insisted for Passport, as she
wanted to go for honeymoon abroad. He tried to
convince her, that they would go for some domestic
trip. But she flatly refused and told him to apply for
Tatkal passport and to delay the honeymoon till she
gets the same, as she wishes to go to Mauritius. Since
the Respondent was newly wedded wife, he did not
wanted to upset her, hence he agreed for the same and
accordingly, they went for Honeymoon to Mauritius.
In Mauritius also, she spent lots of money on
shopping, despite of knowing that he was on tight
budget. During the honeymoon, he tried to convince
her to not to spend the was so extravagantly. At that
time, she picked up a heavy quarrel with him, insulted
him and also taunted him on his incapacity to fulfill
her demand. By looking at such adamant and non-co-
operative attitude of the Respondent, he felt very
miserable and suffered with tremendous mental
trauma.

7. The Petitioner states that, after coming from
Honeymoon he resumed his duties. He used to travel
by railway to K.G. Somaiya Hospital, Sion. The
Respondent started showing her true colours and
insisted him to use a car to avoid Railway journey.

When he started going by car, the her Respondent
would ask him everyday to drop her at her parental
place at Vashi and then go to Sion. For the first trips,
he did not mind, as he thought that being a newly

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wedded wife, she must have been missing her parents.
But later on, it was her program of everyday. She
would visit her parental place almost daily and would
not help his mother in household chores. Therefore,
one day, in the month of June’2002, he tried to
convince her, that not to visit her parental place so
often, without any reason or occasions and she should
take interest in household responsibilities. But in
stead of understanding the same, the Respondent
became very furious and started arguing with him.
She insulted and tainnted him of having middle class
mentality. At that time, she started shouting at him at
the top of her voice a abused him in front of his
parents Thereafter, she stopped going to her parental
place by car with him for some days. But started
visiting her parents without informing him. At times,
she used to talk on the telephone with her mother for
hours together. The Respondent never took took any
interest in household duties and also not given helping
hand to his mother. But instead, she always kept
grudge in her mind against him and his family
members, the reason best known to her.”

“8 The Petitioner states that, after some days, in
the month of July’2002, the Respondent again
resumed to her earlier behavior and started insisting
him to drop her at Vashi every morning. When he
tried to convince her not to behave in such an
irresponsible manner and take interest in her marital
obligation, at that time she created a big scene at his
home in front of his parents. She had abused and
insulted him and started throwing things on his
person within her reach. He anyhow tried to pacify
her and controlled the situation. But due to such
adamant and arrogant attitude of the Respondent, he
suffered with tremendous mental tension and agony,
which cannot be explained in words. At that time, for
the first time he took the decision to inform her
parents regarding her such indifferent attitude, as it
had become unbearable for him.”

“11 The Petitioner states that, on the occasion of
Respondent’s cousin’s wedding at Bangalore in the
month of August-September’2002, it was very difficult

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for him to take leave. But the Respondent pressurized
him to take a leave for a week and both went to
Bangalore to attend the said wedding. During that
period, the Respondent had falsely accused him for
being flirtiest with her cousin sister AKSHATA
SHETTY, without having any fault on his part. On the
said issue, she quarreled with him at the hotel room
and resorted to physical abuse to him. It was very
much shocking for him and he collapsed due to the
Respondent’s erratic and Suspicious nature. During
that trip, he immediately informed to her mother
regarding her such erratic and suspicious nature. At
that time, her mother assured him that she would
take up the said matter in front of all family members
after reaching to Mumbai and would also convince the
Respondent.”

“12. The Petitioner states that, after reaching
Mumbai, he met her parents immediately and
explained the Respondent’s misconduct at Bangalore.
At that time, her parents assured him that they would
convince and make understand and apologized for her
misdeeds and misbehaviour towards him. At that
time, the Respondent stayed along with her parents at
Vashi for one month, i,e. in the month of September
2002. Thereafter, she came back to the matrimonial
home. After her coming back to the matrimonial
home, he thought that the Respondent would mend
her ways and would behave properly with him. But
after few days, the Respondent again resumed over
adamant and non cooperative attitude. She started
staying aloof from him and his family members and
used to confine herself in the bedroom and used to
refuse to attend his family functions with him. She
started with the new tactics, that not to have food for
some time, dressing up shabbily, not taking care of his
needs. When he asked her the reason about her such
indifferent attitude towards him, at that time she
arrogantly answered him that, this is how she would
live. He tried to convince her a lot, but she sticked to
her adamant and non-co-operative attitude. Due to
such erratic attitude of the Respondent, he also
developed tremendous stress and could not
concentrate on his work. At that time also, he

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informed her parents regarding her misbehavior, but
as usual, they assured of her improvement in future.”

“13 The Petitioner states that, after the above
incidences, within a week i.e. in the month of
September’2002, again the Respondent had come up
with the new complaint of severe back-ache and
inability to stand. She requested him to drop her to
the parental place for some days. Being a doctor, he
was very disturbed with her said complaint, as she
had confined herself in the bed room. He got her X-ray
done, but did not find any problem in her back and
everything was normal. But due to her insistence, he
dropped her at Vashi. The Respondent had started her
normal activities social life at Vashi After some days,
he brought her back to matrimonial home, but the
Respondent was reluctant to come back. After coming
home, again she started picking up issues at home
with him and his family members on unwanted and
unreasonable things. When informed the said matter
to her parents, at that time they suggested him to take
separate accommodation, which was impossible for
him.”

“15 The Petitioner states that, as per the tradition,
the Respondent had to go to her parental place after
her Seventh month. But, she put the pressure and left
for her parental place in the 6th month of her
pregnancy. During her stay at her parental place,
whenever he used to phone call her to now about her
wellbeing, she used to insist him for separate
accommodation using child’s future as a new
technique. The petitioner further states that on
28.06.2003, she gave birth to a baby girl. After the
birth of the child, she stayed at her parental place for
more than 3 to 4 months by delaying her return back
on one or the other pretext. He and his family
members were expecting new born baby at home
soon, but the Respondent kept on refusing and
extended her stay at her parental place. Due to such
attitude of the Respondent, he was very much
disturbed and was suffering from sleepless nights.
Therefore, on October’2003, he had arranged for a
joint meeting along with his family members. In front

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of the Respondent’s parents, again he requested her to
come back to the matrimonial home along with the
child, as it was high time. At that time, the
Respondent agreed to comeback with him very
reluctantly and according joined him at the
matrimonial home.”

“21 The Petitioner states that, after the Respondent
rejoined him in the matrimonial home, after 2 ½
years, he thought that everything would become
normal and they would lead happy marital life along
with daughter ‘SARAYU’. But to his utter shock, the
Respondent had created a new issue by by not
allowing him to have physical relations after their
reunion and she flatly refused for the said. Whenever
he tried to show intimacy towards her for the physical
relations, she flatly refused for the said and told him
that she has accepted the said reunion only for the
sake of her daughter. Thus, the Respondent has
willfully neglected and refused him to have his marital
bliss, without having any fault on his part. Thus, there
is no physical relation between them since May’2007,
due to the willful refusal and neglect of by the
Respondent.”

“24. The Petitioner states that, on 15.10.2007 at 7.15
a.m., when daughter ‘SARAYU’ was getting ready for
the school, he thought of hugging his daughter and
came closer to ‘SARAYU’. At that time, the
Respondent came charging, threw his arms off
‘SARAYU’ and abused him in most vulgar language.
When he also asked her the reason about such rude
behaviour, at that time the Respondent started
throwing things at him. By hearing the said noise
from their bedroom his parents rushed there and his
mother tried to stop her. At that time, she also
abused and insulted his parents in most filthy
language and asked them to leave their house
permanently. At that time, ‘SARAYU’ was witnessing
everything. Hence, he also tried to pacify her, but the
Respondent had become out of control. Thereafter, the
Respondent packed all her bag and baggage i.e. her
Streedhana articles, cloths and other belongings and
left the matrimonial home along with ‘SARAYU’ and

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while going, she threatened him of dire consequences,
that she would implicate him and his family members
in false criminal case, if he would come to her parental
place to take her back.”

9 The learned senior counsel for the Appellant submits
that the Respondent has also admitted most of these facts
in her written statement. In support of this contention, he
relies on following paragraphs of the written statement
filed by the Respondent which reads thus:

“6 ………………..The Petitioner’s mother Mrs.
Ratna.C.Shetty is a lady of excellent dramatic skills.

As soon as the Petitioner and the Respondent came
back from the honeymoon the Petitioner’s mother
falsely claimed of having severe leg pain to which the
Petitioner put a plaster from thigh to toe confining his
mother to bed rest, this was a ploy on behalf of the
Petitioner and his mother to compel and burden the
new bride into doing all the household chores, they
also removed the house-maid who was working for 8
years with them before the Petitioner and
Respondent’s marriage. The Petitioner’s parents told
the Respondent that the Respondent’s status in her
matrimonial home was that of an ‘ayaah’ (maid
servant). The Respondent was compelled to do all the
household chores of sweeping, swabbing, washing
clothes and utensils of the Petitioner’s family as well
as his sister’s family and also cook for the entire
family. Even though the Petitioner’s sister Sarika and
her husband Thomas Jery had a rented
accommodation of their own nearby, they had their
meals in the Respondent’s matrimonial home. The
Petitioner’s sister Sarika had an illicit relationship
with Mr.Jerry Thomas who was then working as her
boss and was a married man with two children. The
Petitioner had once told the Respondent Respondent
that his sister had eloped from home and was not sure
about authenticity of Sarika’s marriage and hence the
legitimacy of her daughter Rhea. The Petitioner had
also admitted to the Respondent that his sister Sarika
had filed a police case against her own parents

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because Sarika feared for Mr. Jerry Thomas’s life as
her parents at that time did not approve of her
relationship with Mr. Jerry Thomas. The Petitioner’s
sister Sarika would leave her daughter Rhea in the
care of the Respondent. The Respondent had to feed,
bathe, clothe Rhea and also accompany Rhea to the
school bus at 6.45 in the mornings and then bringing
Rhea back from school. At nights, on the insistence of
the Petitioner’s family, the Respondent had to make
Rhea sleep in between her and the Petitioner as a
deliberate ploy not to allow the newly married
Petitioner and Respondent to get intimate. The
Petitioner’s sister Sarika would drape herself in
nothing but a towel and move around shamelessly in
the house in the presence of her brother and father.
The Petitioner and his parents expected the
Respondent to do the same. When the Respondent
refused to oblige to this outrageous demand of the
Petitioner and his family, the Respondent was
ridiculed and humiliated as being outdated and
conservative.”

“8 …………………The Petitioner was shamelessly
flirting with the Respondent’s cousin sisters which
became very embarrassing for the Respondent and
her relatives. Some of the relatives even questioned
the Respondent about the Petitioner’s character.
When the Respondent pleaded with the Petitioner to
mend his ways, the Petitioner started shouting at the
Respondent and threatening the Respondent with dire
consequences, drawing attention of all the present
relatives and friends. Despite the Petitioner’s
shocking behaviour, the Petitioner and the
Respondent had physical relations after which the
Respondent conceived in the month of
September/October 2002. The Respondent craves
leave to refer to and rely upon the Petitioner’s
telephonic records showing the Petitioner’s regular
interactions with females in the middle of the night.”

“10. With reference to para 15 the Respondent denies
the allegations made therein by the Petitioner. The
Respondent states that as per the tradition he
Respondent was sent to her parent’s house in the 7th

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month after a proper function of ‘godhbharai’ in her
matrimonial home at Vasai. The Respondent’s father
was forced to pay money for the ‘godhbharai’ function
as well. The function was a simple and homely affair in
the presence of family members. After the
Respondent was sent to her parental home, the
Petitioner and his family did not permit the
Respondent to visit her matrimonial home to meet the
Petitioner. The Respondent gave birth to a girl who is
named Sarayu Shetty on 28/6/2003. However, the
Petitioner refused to bear any expense for the
delivery at the hospital and the Petitioner also refused
to bear any expense for the child. The Respondent’s
father had to provide for the Respondent and her new
born child. The Petitioner and his Family insisted that
the Respondent’s father should hold a grand function
for the naming ceremony of the Respondent’s new
born child which the Respondent’s father obliged.
After the passing of 3 months in the month of
September 2003 as is customary the Respondent
went back to her matrimonial home.”

“12 …………….The Petitioner forced the Respondent
to abort the child. The Petitioner at the instigation
and in connivance with his mother would physically
assault and verbally abuse the Respondent. Despite
the Petitioner’s handsome earnings from his job as a
Senior Registrar at S.L. Raheja Hospital, the
Petitioner refused to meet any expense towards the
Respondent and the minor child Sarayu…………………..”

“16 ……………The Respondent states that the
Petitioner upon instigation of his parents and sister
Sarika would from time to time treat the Respondent
with utter disrespect. The Petitioner would
shamelessly relate to the Respondent about his sexual
relations with his colleagues especially Dr.Gayatri
Parchure and female relatives of his patients, the
Petitioner would talk to these ladies at mid-night in
front of the Respondent, causing immense hurt and
emotional turmoil to the Respondent. The Petitioner
used the Respondent merely to extract as much
money as possible from the Respondent’s
father……………”

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"18 ..........The Respondent states that the contents
of the paragraph are completely false and baseless
and malicious in nature. The Respondent states that
the Respondent was ill treated by the Petitioner and
his family, in the Respondent's matrimonial home.
The Respondent further states that normally at
around 4 to 4.30 pm the Respondent would go to the
kitchen to prepare tea for the Petitioner's family
members. On 10th October 2007 at around 4.30 pm
when the Respondent entered the kitchen she was
shocked and surprised to get a foul odour of cooking
gas. On close inspection the Respondent found that
the gas stove was left open and the gas was leaking
out of the stove. The Respondent immediately took
remedial action and was saved from a fatal
disaster........................"

10 The learned senior counsel for the Appellant submits
that in the present proceedings the Appellant has filed his
affidavit along with affidavit of examination in chief
(Exhibit-29 and 41), affidavit of Sadanand Shetty, maternal
uncle of the Appellant (Exhibit- 42). He submits that the
Appellant has also placed on record several documents,
including the document showing income of the Respondent.

11 The learned senior counsel for the Appellant submits
that the Family Court has failed to consider all the materials
placed on record at the time of passing the impugned
judgment. He submits that the Family Court has failed to
consider even the evidence adduced by the Respondent
herself. He submits that the Respondent, in her affidavit in
examination-in-chief has specifically made several
allegations about the character of the Appellant in front of
the family members in family function. These facts were not
considered by the Family Court at the time of passing the

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impugned order. He submits that, in fact, there was major
difference in the lifestyle and standard of living between the
Appellant and the Respondent and because of that, it
became impossible for the Appellant to stay with the
Respondent. Apart from that, the Respondent, for want of
separate accommodation, left the Appellant along with their
child and never returned, in spite of several requests by the
Appellant himself as well his family members. All these
facts were brought on record by the Appellant and in spite
of that the Family Court dismissed the petition for divorce
on the ground of cruelty and desertion.

12 The learned senior counsel for the Appellant submits
that bare reading of the proceedings clearly show that it is
impossible for both the parties to stay together. He
summarized those grounds in written submission.

13 The learned senior counsel for the Appellant submits
that during pendency of the present proceedings, the
learned Magistrate has passed the order in the complaint
u/s.498A of the Indian Penal Code and specifically recorded
that the allegations made by the Respondent against the
Appellant as well as his family members are false. He
submits that these facts itself show that the Respondent has
treated the Appellant with cruelty, so it became impossible
for the Appellant to continue the marital life with the
Respondent wife.

14 The learned senior counsel for the Appellant submits
that the Trial Court has erred in coming to the conclusion

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that the court can pass the decree for maintenance without
any application by the other side. He submits that
admittedly, in the present proceedings the Respondent has
failed to file any application for permanent alimony u/s.25 of
the Hindu Marriage Act, 1955. He submits that in any case,
the question of granting permanent maintenance comes, if
the decree for divorce is granted. The learned senior
counsel for the Appellant submits that in the matter of
Chand Dhawan (Supra), the Apex Court held that in case of
dismissal of the petition of the husband under any of the
sections 9 to 14 of the Hindu Marriage Act, 1955, no
alimony can be granted to the wife but maintenance can be
claimed by wife u/s.18(c) of the Hindu Adoption and Wards
Act or u/s.125 of the Cr.P.C. He relies on para 25 ande 28 of
the said judgment which reads thus:

"25. We have thus, in this light, no hesitation in
coming to the view that when by Court intervention
under the Hindu Marriage Act, affectation or
disruption to the marital status has come by, at that
juncture, while passing the decree, it undoubtedly has
the power to grant permanent alimony or
maintenance, if that power is invoked at that time. It
also retains the power subsequently to be invoked on
application by a party entitled to relief. And such
order, in all events, remains within the jurisdiction of
that Court, to be altered or modified as future
situations may warrant. In contrast, without
affectation or disruption of the marital status, a Hindu
wife sustaining that status can live in separation from
her husband, and whether she is living in that state or
not, her claim to maintenance stands preserved in
codification under Section 18(1) of the Hindu
Adoptions and Maintenance Act. The Court is not at
liberty to grant relief of maintenance simpliciter
obtainable under one Act in proceedings under the
other. As is evident, both the statutes are codified as

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such and are clear on their subjects and by liberality
of interpretation inter-changeability cannot be
permitted so as to destroy the distinction on the
subject of maintenance."

"28. On the afore-analysis and distinction drawn
between the fora and perspectives, it is difficult to
come to the view that a claim which is ancillary or
incidental in a Matrimonial Court under the Hindu
Marriage Act could be tried as an original claim in
that Court; a claim which may for the moment be
assumed as valid, otherwise agitable in the Civil Court
under the Hindu Adoptions and Maintenance Act,
1956. As said before, these two enactments keeping
apart, the remaining two, i.e., Hindu Succession Act,
1956 and Hindu Minority and Guardianship Act, 1956
are a package of enactments, being part of one socio-
legal scheme applicable to Hindus. When distinctive
claims are covered distinctly under two different
statutes and agitable in the Courts conceived of
thereunder, it is difficult to sustain the plea that when
a claim is otherwise valid, choosing of one forum or
the other should be of no consequence. These are not
mere procedural technicalities or irregularities, as
termed by one line of reasoning by some of the High
Courts. These are matters which go to the root of the
jurisdiction. The Matrimonial Court, a Court of special
jurisdiction, is not meant to pronounce upon a claim of
maintenance without having to go into the exercise of
passing a decree, which implies that unless it goes
onwards, moves or leads through, to affect or disrupt
the marital status between the parties. By rejecting a
claim, the Matrimonial Court does make an appealable
decree in terms of Section 28, but that neither affects
nor disrupts the marriage. It certainly does not pass a
decree in terms of Section 25 for its decision has not
moved or done anything towards, or led through to
disturb the marriage, or to confer or take away any
legal character or status. Like a surgeon, the
Matrimonial Court, if operating, assumes the
obligation of the post operatives, and when not, leaves
the patient to the physician."

Basavraj G. Patil                                              17/42
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15 The learned senior counsel for the Appellant has

relied on the following judgment on the point of cruelty. He
submits that Apex Court in the matter of K. Srinivas Rao
Vs. D. A. Deepa (2013) 5 SCC 226 held that making
unfounded, indecent, defamatory allegations against the
spouse or his/her relatives in the pleading, filing repeatedly
false complaint or cases in the court amounts to cruelty. He
relies on para 16 of the said judgment, which reads thus:

"16. Thus, to the instances illustrative of mental
cruelty noted in Sumar Chosh Vs. Jaya Ghosh (2007)
4 SCC 511, we could add a few more. Making
unfounded indecent defamatory allegations against
the spouse or his or her relatives in the pleadings,
filing of complaints or issuing notices or news items
which may have adverse impact on the business
prospect or the job of the spouse and filing repeated
false complaints and cases in the court against the
spouse would, in the facts of a case, amount to causing
mental cruelty to the other spouse."

16 The learned senior counsel for the Appellant also
relies on the judgment in the matter of K. Srinivas Vs. K.

Sunita (2014) 16 SCC 34. He submits that in this
authority also the Apex Court held that filing of false
criminal complaint against the husband and his family
members u/s.498A read with section 307 of the Indian
Penal Code constitutes matrimonial cruelty. He relies on
para 5 of the said judgment which reads thus:

"5. The Respondent-Wife has admitted in her cross-

examination that she did not mention all the incidents
on which her Complaint is predicated, in her
statement under Section 161 of the Cr.P.C. It is not her
case that she had actually narrated all these facts to
the Investigating Officer, but that he had neglected to

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mention them. This, it seems to us, is clearly
indicative of the fact that the criminal complaint was
a contrived afterthought. We affirm the view of the
High Court that the criminal complaint was "ill
advised". Adding thereto is the factor that the High
Court had been informed of the acquittal of the
Appellant-Husband and members of his family. In
these circumstances, the High Court ought to have
concluded that the Respondent-Wife knowingly and
intentionally filed a false complaint, calculated to
embarrass and incarcerate the Appellant and seven
members of his family and that such conduct
unquestionably constitutes cruelty as postulated in
Section 14(1)(ia) of the Hindu Marriage Act."

17 The learned senior counsel for the Appellant submits
that even the Apex Court in the matter of Malathi Ravi,
M.D. Vs. B.V. Ravi, M.D. (2014) 7 SC 640 held that the
subsequent events can be considered at the time of deciding
the matter between the parties. He submits that the Apex
Court held that the false and fictitious criminal proceedings
u/s.498A, 506 read with section 34 of the Indian Penal Code
against the husband and his family members by wife after
filing the divorce petition, can be considered at the time of
deciding the matter.

18 The learned senior counsel for the Appellant submits
that the Apex Court in the matter of G.V.N.Kmeswara Rao
Vs. G. Jabilli (2002) 2 SCC 296 held that false police
complaint and consequential loss of reputation and
standard in the society at the instance of one's spouse
amounts to mental cruelty. He relies on para 9 of the said
authority, which reads thus:

9 Under Section 13(1) (ia) of the Hindu Marriage
Act, on a petition presented either by the husband or

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wife, the marriage could be dissolved by a decree of
divorce on the ground that the other party has, after
the solemnization of the marriage, treated the
petitioner with cruelty. 'Cruelty' is not defined in the
Act. Some of the provisions of the Hindu Marriage Act
were amended by Hindu Marriage Laws
(Amendment) Act, 1976. Prior to the amendment,
'cruelty' was one of the grounds for judicial separation
under Section 10 of the Act. Under that Section,
"cruelty" was given an extended meaning by using an
adjectival phrase, viz. "as to cause reasonable
apprehension in the mind of the petitioner that it will
be harmful or injurious for the petitioner to live with
the other party". By the Amendment Act of 1976,
"cruelty" was made one of the grounds for divorce
under Section 13 and relevant provision reads as
follows:-

"13. Divorce (1) Any marriage solemnized,
whether before or after the commencement of the Act,
may, on a petition presented by either the husband or
the wife, be dissolved by a decree of divorce on the
ground that the other party

(i)

(i-a) has, after the solemnization of the
marriage, treated the petitioner with cruelty, or

(ib) ..

(ii)-(ix) "

19 The learned senior counsel for the Appellant relies on
judgment in the matter of Vijaykumar Ramchandra Bhate
Vs. Neela Vijaykumar Bhate (2003) 6 SCC 334. He
submits that in this authority, the Apex Court held that the
leveling disgusting accusation, unjust and indecent
allegations against the person amounts to mental cruelty.
Para 7 of the said judgment reads thus:

Basavraj G. Patil                                                    20/42
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"The question that requires to be answered first is as
to whether the averments, accusations and character
assassination of the wife by the appellant husband in
the written statement constitutes mental cruelty for
sustaining the claim for divorce under Section 13(1)
(i-a) of the Act. The position of law in this regard has
come to be well settled and declared that leveling
disgusting accusations of unchastity and indecent
familiarity with a person outside wedlock and
allegations of extra marital relationship is a grave
assault on the character, honour, reputation, status as
well as the health of the wife. Such aspersions of
perfidiousness attributed to the wife, viewed in the
context of an educated Indian wife and judged by
Indian conditions and standards would amount to
worst form of insult and cruelty, sufficient by itself to
substantiate cruelty in law, warranting the claim of
the wife being allowed. That such allegations made in
the written statement or suggested in the course of
examination and by way of cross- examination satisfy
the requirement of law has also come to be firmly laid
down by this Court. On going through the relevant
portions of such allegations, we find that no exception
could be taken to the findings recorded by the Family
Court as well as the High Court. We find that they are
of such quality, magnitude and consequence as to
cause mental pain, agony and suffering amounting to
the reformulated concept of cruelty in matrimonial
law causing profound and lasting disruption and
driving the wife to feel deeply hurt and reasonably
apprehend that it would be dangerous for her to live
with a husband who was taunting her like that and
rendered the maintenance of matrimonial home
impossible."

20 The learned senior counsel for the Appellant submits
that the Apex Court in the matter of Chand Dhawan (Smt)
Vs. Jawaharlal Dhawan (1993) 3 SCC 406 held that
repeatedly accusing embarrassment in social status also
amounts to cruelty. He submits that bare reading of the
pleading of the parties and the authorities of the Apex Court

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clearly show that the impugned order passed by the Family
Court is required to be set aside granting the divorce to the
Appellant on the ground of cruelty.

21 The learned senior counsel for the Appellant submits
that the Family Court has erred in coming to the conclusion
that the Appellant is liable to pay sum of Rs.30,000/- (Rs.
Thirty Thousand only) to the Respondent and Rs.15000/-
(Rs. Fifteen Thousand only) to daughter Sarayu, though
there was no application filed by the Respondent u/s.25 of
the Hindu Marriage Act, 1955. He submits that the Family
Court has recorded its finding in para 81 that in the interest
of justice, the court can pass the maintenance order without
any application from the spouse. He relies on para 81 of the
impugned judgment, which reads thus:

"81. In this case, the claim of petitioner for divorce is
rejected. The question of permanent alimony u/s.25 of
the Hindu Marriage Act, 1955 is for consideration
before this Court. Refusing maintenance will drive
the Respondent to file another proceeding u/s.18/20 of
the Hindu Adoption and Maintenance Act, which will
result into multiplicity of proceeding. Therefore, the
issue of permanent alimony can be decided in favour
of Respondent in this case to avoid multiplicity of
proceeding."

22 The learned senior counsel for the Appellant submits
that the Family Court has erred in coming to the conclusion
that the Appellant has failed to justify the ground of
desertion. He submits that admittedly, the Respondent was
staying with her parents for several years. Therefore, the
court ought to have granted decree for divorce on the

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ground of desertion also. In support of his contention, he
relies on the judgment in the case of Geeta Jagdish
Mangtani Vs. Jagdish Mangtani AIR 2005 SC 3508.
Paragraph 5 thereof reads thus:

"We are of the view that these observations of the
High Court are fully justified in the facts of the present
case. One has to particularly note the fact that the
parties knew even prior to marriage whatever they
were earning. The earnings of the wife from a
Government job before the marriage was more than
double of that of the husband. With the knowledge of
this fact the parties entered into matrimonial alliance.
The marriage survived only for a brief period of about
seven months. After 2nd June, 1993 till the exchange
of notices and replies during September to December,
1996 and filing of the divorce petition ultimately by
the husband on 31st December, 1996, there has been
no attempt on the part of the wife to stay with the
husband. She is a school teacher and it is common
knowledge that in schools there are long vacations
during summer months, more so, in Government
schools where the wife teaches. At least during those
holidays she could have visited the husband at
Ulhasnagar along with her son and stayed with him.

There is nothing on record to show that any such
attempt was ever made by her to visit the husband
during this entire period. She has stated in her
evidence that the husband used to come and stay with
her during her vacations. This has been denied by the
husband. Therefore, the conclusion in inevitable, that
there was never any attempt on the part of the wife to
go to husband's house i.e., matrimonial home of the
parties after she left on 2nd June, 1993. From this
fact alone animus deserendi on the part of the wife is
clearly established. She has chosen to adopt a course
of conduct which proves desertion on her part. In the
facts and circumstances of the case, it cannot be said
that this desertion on the part of the wife was with a
reasonable cause. Such a course of conduct over a long
period indicates total abandonment of marriage and
cannot be justified on ground of monetary

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consideration alone as a reasonable cause to desert. It
also amounts to willful neglect of the husband by the
wife. Therefore, the conclusion reached by the High
Court appears to be absolutely correct in the facts and
circumstances of the case. This appeal is accordingly
dismissed with no order as to costs. "

23 On the basis of these facts, the learned senior counsel
for the Appellant submits that this Hon'ble Court be pleased
to allow the appeal on the ground of cruelty and desertion
and hold that the Respondent is also earning sufficient
amount. Therefore, she is not entitled to any maintenance
charges.

24 On the other hand, the Respondent in-person submits
that the appeal, as it is field by the Appellant, is liable to be
dismissed. It is without any merits. She submits that the
Family Court, at the time of passing the impugned judgment
and decree, considered all the documents on record
including the evidence adduced by the parties. She submits
that the Family Court has rightly held that the Appellant
has failed to prove any cruelty and/or desertion on the part
of the Respondent. She submits that, in fact, the Appellant
used to torture the Respondent for small things. He never
cared for the Respondent. Whenever, the Respondent used
to ask some money for her expenses, he used to refused to
do so. Not only that, when the Respondent was pregnant,
the Appellant has never taken care of her during that
period. Apart from that, at the time of delivery, all the
expenses were paid by the Respondent's father, as the
Appellant had refused to do so. Therefore, there is no
question of cruelty committed by the Respondent. In fact,

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the Appellant treated the Respondent with cruelty.

25 The Respondent party-in-person submits that though
the courts, from time to time, passed orders directing the
Appellant to pay monthly maintenance for herself and her
daughter, he used to avoid the same and for that purpose
the Respondent has filed several Applications. She submits
that till the date of filing the present appeal, the Appellant
has failed and neglected to clear his liability towards the
payment of maintenance charges for the Respondent as well
as her daughter. Therefore, the appeal is required to be
dismissed with costs.

26 The Respondent in-person further submits that the
Family Court, at the time of deciding the maintenance
amount, has failed to consider the status of the Appellant.
She submits that the Appellant is well-known Orthopedic
Surgeon. His daily income is more than Rs. 2,00,000/- (Rs.
Two lacs only). He is associated with several hospitals. She
submits that in spite of having huge income, the Appellant
had made a statement before the Family Court that his
income is not more than Rs.25,000/- (Rs. Twenty Five
Thousand only) per month to Rs.30,000/- (Rs. Thirty
Thousand only) per month. Therefore, the maintenance
awarded by the Family Court is on lower side.

27 The Respondent in-person submits that she has also
filed Cross Objections, explaining the way in which the
Family Court has failed to consider the Appellant's income
at the time of awarding the maintenance charges. She

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submits that she has raised the following objections in the
Cross Objections in respect of the maintenance charges:

"(a) The Hon'ble Family Court further while deciding
the issues qua the return of the amounts, has erred in
not allowing the entire refund of the amount of the
Respondent which the father of the Respondent had
admittedly paid and in respect whereof the
Respondent had specifically made a claim by a
separate application.

(b) The Hon'ble Family Court did not appreciate that
the prayer for permanent alimony was clear and
ultimately the Respondent ought to have been granted
the entire amount claimed as alimony as it was
already brought on record that the Appellant earned a
lot of money and the same was brought in very clear
terms before the Hon'ble Court and hence the
Appellant ought to have directed to pay the amount of
permanent alimony as claimed by the Respondent in
entirety.

(c) The Hon'ble Family Court erred in not allowing
the entire claim of the maintenance to the Respondent
and daughter of the Respondent and hence the
judgment of the family court to that extent needs to be
modified.

(d) The Hon'ble Family Court after ought to have
granted the entire prayer of the Respondent in
respect of the alternate accommodation while
disposing of the Petition which has not been done
putting the Respondent to serious prejudice.

(e) The Respondent has filed (i) Application for
Enhancement @ EXBH 30 (ii) Application for
Directions @ EXBH 37(iii) Application for right to
reside @ EXBH 49 which was to be decided alonwith
the main Petition (This has also been mentioned in
the Roznama) by the Hon'ble Family Court at Bandra,
but has been pending so far, the Respondent has also
mentioned these pending Applications in her Written
Arguments, but there has somehow been a lapse and

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these Applications still remain pending as of today
and have not been disposed off.

(f) The Respondent craves leave to add, amend and
alter any of the grounds to the Cross Objections
subject to leave of this Hon'ble Court."

28 The Respondent in-person has filed the written
submissions dated 21.02.2020, wherein she has annexed
several complaints made by her with the Senior Inspector of
Mira Road Police Station for police investigation to support
the family Court's order. She has also placed on record the
photographs downloaded from the Google showing that the
Appellant is a Director of the Orthopedic and Joint
Replacement Society. He is awarded with several Awards for
his work as an Orthopedic Doctor. She has also placed on
record a statement of account for the period 01.04.2018 to
31.03.2019 issued by the Tunga Health Care, having office at
Opposite Nariman Diagnostic Center, Oraswadi Road, Malad
(W), Mumbai - 400064. She submits that the said
statement clearly shows that the Appellant has received the
income of Rs.41,78,107/- (Rs. Forty One Lacs Seventy Eight
Thousand One Hundred Seven only) for the period
01.04.2018 to 31.03.2019. She submits that, on the basis of
these facts, this Hon'ble Court be pleased to direct the
Appellant to pay the maintenance at higher rate.

29 The Respondent in-person submits that, the case of
the Appellant, that the Respondent has deserted him
intentionally, is not correct. She submits that because of
harassment from the Appellant's family members, she was
constrained to go and stay with her father, in the interest of

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her daughter. She submits that, though, from time to time
she tried to convince the Appellant to stay separately, he
has failed and neglected to do so. He never contacted her to
resume her company. She submits that neither the
Appellant nor his family members made any efforts to
reconcile their disputes so that both can stay together. He
never cared for the daughter. She submits that during
pendency of the divorce proceedings before the Family
Court and also before this Hon'ble Court, he never met the
child, though it was permitted by the Family Court. This
itself shows that the Appellant never cared for his daughter
also. She submits that now the daughter is more than 13
years old. She is taking education and for that purpose, the
Respondent needs money. These facts were considered by
the Trial Court at the time of rejecting the Appellant's
prayer for divorce on the ground of desertion also. On the
basis of these submission, the Respondent in-person
submits that there is no substance in the appeal and the
same is liable to be dismissed with costs.

30 It is to be noted that, the Family Court framed the
following issues :

                     Issues                     Findings
1 Does the Petitioner proved that the In negative.
Respondent treated him with
cruelty, after the solemnization of
the marriage ?
2 Does the Petitioner prove that the In negative
Respondent deserted him for th
eperiod not less than two years last
preceding the presnetation of the
petition ?

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3 Whether there is any legal bar In affirmative
u/s.23 of Hindu Marriage Act to
pass a decree of divorce in favour of
the Petitioner ?

4 Whether the Petitioner is entitled to As per final order
the access of her child - Sarayu ? If,
what would be the scheme of
access ?

5 Whether the Respondent is entitled As per final Order
to her Stridhan as claimed to her
application Exh.6 ?

6 Whether the Respondent is entitled Yes. Rs.30,000/-
to the permanent alimony from the for the Respondent
Petitioner for herself and and Rs.15,000/-
maintenance for her daughter for the daughter.
Sarayu ?

7 Whether the Respondent is entitled As per final order.
to the separate accommodation, as
claimed ?

8 What order and decree ?                   Petition is
dismissed.

31 We have gone through the papers and the record and

proceedings called from the Family Court. On the basis of
the submissions made by the learned senior counsel for the
Appellant and the Respondent - in person, including their
written submissions, record and proceedings, following
points for our consideration.

Points Findings
1 Whether the Appellant husband In the affirmative
had made out a case for divorce
u/s.13(1)(ia) of the Hindu Marriage
Act, 1955 on the ground of cruelty?

2 Whether the Appellant has made In the affirmative
out a case for divorce on the ground
of desertion?

Basavraj G. Patil                                          29/42
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3 Whether the maintenance charges In the affirmative
awarded by the Trial Court is
maintainable in view of section 25
of the Hindu Marriage Act, 1955 ?

4 Whether the Respondent is entitled Yes, as per final
to any maintenance for herself and order
her daughter ?

32 Though the Appellant, in his submission raised the
issue of taking action against the Respondent u/s.340 of the
Code of Criminal Procedure for making incorrect statement
on solemn affirmation, same was not argued by the learned
senior counsel for the Appellant before this court.
Therefore, there is no question of considering the said issue.

33 It is to be noted that bare reading of the copy of plaint
and some of the paragraphs, as reproduced hereinabove
show that the Respondent used to make allegations against
the Appellant on his character in the society at large. The
Respondent in her written statement, particularly in
paragraph 3,4,5,6,8,10,12,16,18 made several allegations
against the Appellant. Not only that the Respondent, in her
claim affidavit in lieu of oral evidence on oath dated
13.08.2012 made several allegations. Para 6, 9 and 15
reads thus:

"6 I say that since the inception of marriage I was
ill-treated in my matrimonial home. The Petitioner
refused to take me for any outing, his family functions
or any of his official functions. To my utter disbelief I
saw that the Petitioner's father would never go for
work and the Petitioner too returned from the
hospital by late afternoon. I say that the Petitioner
and his family members even refused to add my name
in their ration card although soon after the marriage I

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had cancelled my name in the ration card in my
parental home (Exbht-8) and had requested the
Petitioner and his family innumerable times to add my
name in their ration card (Exbht-910). The
Petitioner and bis parents would humiliate the
Respondent on her physical appearance that the
Respondent was not good-looking enough for the
Petitioner, the Petitioner's mother Mrs. Ratna. C.
Shetty is a lady of excellent dramatic skills as soon as
the Petitioner and the Respondent came back-from
the honeymoon the Petitioner's mother falsely
claimed of having severe leg pain to which the
Petitioner put a plaster from thigh to toe confining his
mother to bed rest, this was a ploy on behalf of the
Petitioner and his mother to compel and burden me
into doing all the household chores, they also removed
the house-maid who was working with them for 8
years with them before my marriage to the Petitioner .
The Petitioner's parents told me that my status in my
matrimonial home was that of an 'ayah' (maid
servant) as their son was not happy with me and their
son had married me because they had pressurized
him to do so. I was compelled to do all the household
chores of sweeping, swabbing, Washing clothes and
utensils of the Petitioner's family as well as his sister's
family and also cook for the entire family including the
Petitioner's sister and her family (photographs 22-

27). Even though the Petitioner's sister Sarika and
her husband Thomas Jerry had rented
accommodation of their own nearby, they would their
meals in my matrimonial home. The Petitioner's sister
Sarika had an illicit relationship with Mr.Jerry
Thomas who was then working as her boss and was a
married man with two children. The Petitioner had
once told me that his brother-in-law Mr.Jerry Thomas
was a married man with two children. The Petitioner
had also told me that Mr.Jerry Thomas's first wife had
committed suicide because of his sister Sarika. The
Petitioner had also told me that his sister had eloped
from home and since Mr Jerry Thomas was a married
man and 15 years older to his sister hence they were
not sure about the authenticity of Sarika's marriage
and therefore the legitimacy of her daughter Rhea.

The Petitioner had also admitted to me that his sister

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Sarika had, filed a police case against her own parents
because Sarika feared for Mr. Jerry Thomas's life as
her parents at that time did not approve of her
relationship with Mr. Jerry Thomas. The Petitioner's
sister Sarika would leave her daughter Rhea in my
care and would leave for work as she started working
as a Personal Secretary in a firm in Mahim Bazaar in
May 2002. I was forced to feed, bathe, clothe Rhea and
also accompany Rhea to the school bus at 6.45 in the
mornings and then bring Rhea back from school. At
nights, on the insistence of the Petitioner's family, I
had to make Rhea sleep in between myself and the
Petitioner as a deliberate ploy not to allow the newly
married Petitioner and myself to get Intimate. The
Petitioner's sister Sarika would drape herself in
nothing but a towel and move around shamelessly in
the house in the presence of her brother and father.
The Petitioner and his parents expected me to do the
same. When I refused to oblige to this outrageous
demand of the Petitioner's family, I was ridiculed and
humiliated as being outdated and conservative."

"9 I state that the Petitioner and his family
especially his sister Sarika were not at all happy with
the my pregnancy, the Petitioner's family made the
my life a living hell by constantly pressurizing me to
abort the child to which the I did not agree. With the
intervention of my parents I was allowed to go ahead
with the pregnancy. However the Petitioner's family
continued to harass me by not giving me proper food
and rest. The Petitioner under duress from his family
pressurized me that if I wished to do go ahead with my
pregnancy then my family would have to finance the
building of a hospital for the Petitioner. By now my
father was completely fed up of meeting the
Petitioner's never ending demands in cash, so ,
ultimately, on 16th December 2002 in order to protect
the me and my unborn child, my father and myself
paid a cheque bearing number 187122 dated 16th
December 2002 for an amount of Rs. 10,00,0007"
drawn on Syndicate Branch(Exhbt-13), Tardeo
Branch from my account in the name of "Health
Harmony" (State Bank of India-Navghar Bassein
Branch account number-01050015143-Exbht 14) of

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which the Petitioner was the sole proprietor (Exbht-

15) . The said Health Harmony Hospitals was a front
created by the Petitioner and his family to legitimize
their illegal demand for money. The said cheque was
immediately encashed and the amount was
misappropriated by the Petitioner and his family. I
was also forced to become a co-applicant for a
personal loan of Rs.7 lacs from ICICI Bank by the
Petitioner (Exhibit-16, 17 18). "

"15 I say that since I firmly decided to stay back in
my matrimonial home along with my daughter Sarayu
my in-laws were aghast with my decision. The
Petitioner's parents and sister would abuse me in the
filthiest language possible. The Petitioner's father had
also accused me of having extra-marital affairs. The
Petitioner upon the instigation of his parents and
sister Sarika would from humiliate me and treat me
with utter disrespect. The Petitioner would
shamelessly relate to the Respondent about his sexual
relations with his colleagues especially Dr.Gayatri
Parchure and female relatives of his patients', the
Petitioner would talk to these ladies at mid-night in
front of the Respondent, causing immense hurt and
emotional turmoil to the Respondent .The Petitioner
used me to merely to extract as much money as
possible from my father. The Petitioner's parents and
sister would often tell me that the Petitioner married
me only because the Petitioner and his parents
thought that my father would finance the Petitioner's
study/settling down abroad. The Petitioner earns a lot
of money, which is mostly in cash. However the
Petitioner has refused to take any expense towards
me and our minor daughter Sarayu. At the instigation
and interferences of his mother and sister Sarika, the
Petitioner maintained a restrained behavior with the
Respondent. The .Petitioner religiously spoke to some
ladies, especially to Dr.Gayatri Parchure in the middle
of the night. I crave leave to refer- to and rely upon the
telephonic records revealing the Petitioner's calls
made to the mobile number 9869674712 belonging to
Dr.Gayatri Parchure(Exbht-40). As a matter of fact it
was Ms.Gayatri Parchure who had obtained my
contact number and told me that the Petitioner had

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promised her marriage after getting a divorce it was
she who had courierd the telephonic records to me.
This shocked me but the estranged behavior of the
Petitioner towards me caused me to suffer deep pain
and anguish."

Thus, in this affidavit, the Respondent has commented
on the character of the Appellant's sister and has gone to
the extent of making insinuation regarding legitimacy of the
birth of the Appellant's niece. Such extreme unnecessary
allegations made in bad taste would certainly amount to
cruelty against the Appellant.

34 Not only that, in her cross-examination also she has
admitted these facts. Paragraph 28 and 29 of her cross-
examination is clear on this point, which read thus:

"28. At the time of marriage, I had no passport. It is
false to say that I insisted for Tatkal Passport and
abroad tour. We went to Mauritius. It is incorrect to
say that we had lot of shopping even though Petitioner
requested to restrict considering his financial
position. It is false to say that therefore there was a
quarrel."

"29. Our relations were always cordial. Till I was
threw out i.e. 25th October 2004 relations were
cordial. Father, mother, sister, sister's husband,
sister's child of Petitioner were in the matrimonial
home. It is incorrect to say that Petitioner's sister
was staying in her flat. Petitioner's sister had taken
rental accommodation at Vasai. My relations with
Petitioner's sister were never cordial. There used to
be no qurrel with her. My relations with father and
mother-in-law are cordial till today. I have lodged
complaint against them under section 498A in the
year 2009. Before filing petition I have not filed any
complaint."

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35 The Respondent in-person, in support of her case, filed

affidavit of examination in chief dated 26.03.2013, Exhibit-

59, of Ms.Sarayu S. Shetty, her daughter aged 9½ years.
Said affidavit was affirmed by the Respondent herein as a
natural guardian. It bears signature of her daughter also. It
is difficult to understand, how the Family Court has
accepted the affidavit of minor child, aged 9½ years. The
Respondent has also filed affidavit dated 22.03.2013 of Mr.
Purandar Hegde, her maternal uncle to support her case
that the Appellant used to torture her. It is to be noted that
the said witness, in paragraph 11 of his cross-examination,
has specifically admitted that he never visited the
Appellant's house at Mira Road which was taken by the
Appellant on rent. He has also admitted in his cross-
examination that he has no personal knowledge about the
physical assault to the Respondent. Therefore, it is very
difficult to rely on this witness.

36 The Respondent has also examined one Mr.Krishna
Shetty, Uncle of the Respondent, who has filed affidavit of
evidence dated 03.05.2013 Exhibit- 63. He too admitted in
his cross-examination that he never visited the Appellant
and Respondent's house after their marriage and in spite of
that he has stated in his affidavit about the knowledge of
torture committed by the Appellant on the Respondent.
Paragraph 14 of the cross-examination reads thus:

"14. I have never visited house of Petitioner and
Respondent after their marriage. I have not
personally witnessed the alleged physical abuse done
by the Petitioner on Respondent. The fact of cruelty
on Respondent was informed to be by her parents.

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Father of Respondent has informed me that Petitioner
was extracting money from me. I have no personal
knowledge about this fact. Cash of Rs.40 lacs were not
given in my presence to the Petitioner by the father of
Respondent. (W.V. that only after payment of Rs.40
lacs engagement ceremony was held). I do not know
when and where Rs.40 lacs were paid. Father of
Respondent informed me that he has paid Rs.40 lacs
to the Petitioner. The Respondent has prepared this
affidavit which was read over to me and thereafter I
signed on it. I do not know when cheque of Rs.10 lacs
was given by father of Respondent in the name of
health harmony to the Petitioner. I do not know when
the Respondent was pregnant. I have not lodged any
complaint when the Petitioner tried to extract Rs.36
lacs from me. It is not true to say that para 6 of my
affidavit is false."

37 This, clearly shows that whatever stated by this
witness viz. Mr. Krishna in his affidavit in examination, is
not possible to rely in the present matter. The Respondent
has also filed affidavit of evidence dated 03.05.2013 Exhibit-
64 of Mr. Subbaya V. Shetty, her Uncle. In para 5 of his
affidavit of evidence, he has stated that the Respondent's
father has paid Rs.40,00,000/- (Rs.Forty Lacs only) to the
Appellant and his family members. He has stated in his
affidavit that, the Appellant used to torture the Respondent,
but in his cross-examination, he has specifically stated that
there was no incidence between the Appellant and the
Respondent in his presence. He learnt these facts from his
brother. He has specifically stated in his cross-examination
that he has visited the Appellant's house on two occasions
after their marriage. For the first time, 2 days after the
marriage and secondly, when the Respondent was pregnant
for 7 months. Bare reading of cross-examination of this

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113.14-fca.odt

witness clearly shows that whatever stated by him in his
affidavit in examination in chief cannot be believed.

38 Considering the allegations made by the Respondent
in her written statement and also examination in chief, it is
crystal clear that the Respondent has made several
allegations against the Appellant on his character in public
at large. This amounts to mental cruelty. Apart from that
the Respondent has also filed criminal complaint u/s.498A
of the Indian Penal Code against the Appellant and his
family members, wherein the Appellant and his family
members were acquitted. Thereafter the said order was not
challenged by the Respondent before a higher court.

39 Considering these facts and on the basis of the law
declared by the Apex Court in the mater of Srinivas Rao
(supra), K Srinivas (supra), Malathi Ravi M.D. (supra),
G.V.N. Kameswara Rao (supra), Vijaykumar Ramchandra
Bhate (supra), and Mr. Pravin Mehta (supra), it is clear that
the Respondent has committed mental cruelty on the
Appellant. She has made several allegations against the
Appellant in their family function. These facts were not
considered by the Trial Court at the time of deciding the
petition filed by the Appellant on the ground of cruelty. The
Family Court has failed to consider the written statement
and evidence filed by the Respondent in which she has
specifically made several allegations against the Appellant
which amounts to mental cruelty. Apart from that, both the
parties are residing separately for last more than 10-12
years. Considering these facts, we are of the opinion that the

Basavraj G. Patil 37/42
113.14-fca.odt

Appellant has made out a case to answer point No.1 in the
affirmative i.e. the Appellant has proved a case that the
Respondent has committed cruelty and therefore, he is
entitled for decree of divorce.

40 The second point is about the desertion. It is to be
noted that initially, when the Respondent had left the home,
thereafter the Appellant and his family members held joint
meetings with the Respondent's family members and settled
the matter and thereafter the Respondent started residing
with the Appellant. But within a short span i.e. on
15.10.2007 the Respondent left the home with her daughter
without intimating the Appellant. Thereafter the Appellant
has filed the petition for divorce on 15.12.2007. These facts
were considered by the Family Court, at the time of deciding
the issue of desertion. Though the learned counsel for the
Appellant relied on the Apex Court judgment in the matter
of Geeta Jagdish Mangtant Vs. Jagdish Mangtant AIR 2005
SC 3508, on this point, that if the wife leaves the husband's
house without any intimation, the same amounts to
desertion, is not applicable in the facts and circumstances of
the present case. Therefore, we are of the opinion that the
view taken by the Family Court on Point No.2 is correct.

41 It is to be noted that in the present proceedings,
admittedly, the Respondent has not filed any proceeding
u/s.18 or 20 of the Hindu Adoption and Maintenance Act, for
maintenance. In spite of that the Family Court has awarded
the maintenance only on the ground, that filing separate
proceedings for maintenance will result into multiplicity of

Basavraj G. Patil 38/42
113.14-fca.odt

proceedings and therefore, awarded the maintenance to the
Respondent. It is to be noted that the Apex Court, in the
matter of Chand Dhawan (supra) held that dismissal of the
petition filed by the husband under any of the provisions of
section 9 to 14, no alimony can be granted to the wife u/s.25
of the Hindu Marriage Act, 1955. However, the
maintenance can be claimed by her u/s.18(1) of the Hindu
Adoption and Maintenance Act or u/s.125 of Cr.P.C.
Admittedly, in the present proceedings there was no
application on behalf of the Respondent u/s.18(1) of the
Hindu Adoption and Maintenance Act and/or u/s.125 of the
Code of Criminal Procedure, 1973 and in spite of that the
Family Court has awarded the maintenance charges.

42 It is to be noted that, it is the case of the Appellant
that he has already paid the amount more than
Rs.1,00,00,000/- (Rs. One Crore to the Respondent) towards
maintenance charges of her daughter and for other
expenses, though she is not entitled. It is to be noted that
for want of any application under the Hindu Adoption and
Maintenance Act, the Family Court should not have
awarded the maintenance charges, because the petition filed
by the Appellant husband was dismissed without granting
any decree for divorce. However, since we are granting
decree of divorce in this appeal, we are also considering
grant of permanent alimony u/s.25 of Hindu Marriage Act,
1955.

43 It is to be noted that in the present proceedings the
Appellant has placed on record the documentary evidence

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113.14-fca.odt

to show that the Respondent is also earning substantial
amount. These documents are issued by the Bank. Bare
going through these documents clearly show that the
Respondent is also earning substantial amount. Apart from
that, she is also an educated lady, who can earn at her own.
Apart from that, it is a duty of the Appellant, being a father
of a minor child, to take care of financial needs of his
daughter. The Appellant is a qualified Doctor. He should
maintain her daughter by taking care of her education
expenses, day-to-day needs etc. Apart from that it is a duty
of the Appellant to pay some maintenance charges to wife
also. Whatever amount is paid by the Appellant to the
Respondent so far, same shall be treated for the welfare of
minor daughter. Therefore, there is no question of refund of
the said amount to the Appellant.

44 Considering these facts, the income of the Appellant,
the income of Respondent and the statement made by the
Respondent in her claim affidavit, in view of oral evidence
dated 13.08.2012 in paragraph 37 that the Respondent has
stated that she has issued cheque bearing No.187122 dated
16.12.2002 for an amount of Rs.10,00,000/- (Rs. Ten Lacs
ony) drawn on Syndicate Bank, Branch Tardeo account in
the name of "Health Harmony", we are of the opinion that
the Appellant must pay sum of Rs.40,000/- (Rs. Forty
Thousand only) per month to minor daughter Sarayu and
Rs.25,000/- (Rs.Twenty Five Thousand only) per month to
the Respondent wife towards their maintenance charges
from the date of this order. In addition to maintenance
charges, the Appellant shall open a Fixed Deposit Account

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113.14-fca.odt

for the sum of Rs.5,00,000/- (Rs. Five Lacs only) in the
name of minor daughter Sarayu in any Nationalized Bank
and hand over the Fixed Deposit Receipt to the Respondent,
being natural guardian, within three months from the date
of this order. Said sum shall be incurred for the marriage
expenses of minor daughter Sarayu. In view of these facts,
there is no question of clearing any arrears of maintenance
charges payable, if any, to the Respondent, because the
order passed by the Family Court towards the maintenance
itself, is bad in law, in view of the Apex Court judgment in
the matter of Chand Dhawan (supra).

45 The Respondent has also filed Cross-Objection stating
that the maintenance charges awarded by the Trial Court is
on lower side. In view of the findings recorded by us on
issue No.4, nothing survives in the Cross Objection. Same is
liable to be dismissed.

46     Hence, following order is passed:

a. The judgment and decree passed by the Family

Court, Mumbai in Petition No.A-2330/2007 is set
aside.

b. Decree of divorce is granted in favour of the
Appellant on the ground of cruelty only.

c. The marriage between the Appellant and the
Respondent solemnized on 17.03.2002 stands
dissolved.

Basavraj G. Patil                                                41/42
113.14-fca.odt

d. The Appellant to pay sum of Rs.40,000/- (Rs.

Forty Thousand only) towards maintenance charges,
to his daughter Sarayu from March 2020 on or before
10th day of each month.

e. The Appellant to pay sum of Rs.25,000/- (Rs.
Twenty Five Thousand only) to the Respondent wife
towards her maintenance charges from March 2020
on or before 10th day of each month, till she remarries.

f. The Appellant shall open a Fixed Deposit
Account for the sum of Rs.5,00,000/- (Rs. Five Lacs
only) in the name of minor daughter Sarayu in any
Nationalized Bank and hand over the Fixed Deposit
Receipt to the Respondent, being natural guardian,
within three months from the date of this order. Said
sum shall be incurred for the marriage expenses of
minor daughter Sarayu.

       g.      The Appeal is allowed accordingly.

h. The Cross Objection filed by the Respondent
stands dismissed.

i. No order as to costs.

(SARANG V. KOTWAL, J.) (K.K.TATED, J.)

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