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Jivan Madhukar Nagapurkar vs Shaila Jivan Nagapurkar on 23 April, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

FAMILY COURT APPEAL NO. 05 OF 2015

Jivan S/o Madhukar Nagapurkar
Age : 46 years, Occ : Service,
R/o Plot No.7, Samarthnagar,
Aurangabad.
..APPELLANT
VERSUS

Sow. Shaila W/o. Jivan Nagapurkar
Age : 45 years, Occ : Household,
R/o. Sahyog Nagar, Aurangabad.
..RESPONDENT

Mr. H.A. Joshi, Advocate for the Appellant
Mr. R.F. Totala, Advocate for the Respondent.

CORAM: S.S.SHINDE
S.M.GAVHANE,JJ.

Reserved on : 09.04.2018
Pronounced on : 23.04.2018

JUDGMENT(Per S.S.Shinde, J.):

By this Family Court Appeal, the

appellant – husband challenges the judgment

and decree dated 12th July, 2010 passed by the

Family Court, Aurangabad, dismissing the

Petition No.A-266 of 2009 filed by the

appellant under section 13(1)(ia) and (ib) of

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the Hindu Marriage Act, 1955, thereby

refusing to grant decree of divorce in favour

of the appellant i.e. original petitioner.

2. The case of the appellant seeking

decree of divorce, in brief, can be stated as

under :

The marriage between appellant-

husband and respondent-wife was solemnized on

21st May, 1995 as per the Hindu Rites. After

marriage, the respondent repeatedly used to

visit and stay at her parental house. The

appellant tried to bring respondent back on

several times, but she did not come. Grand-

mother of the appellant is aged about 90 to

91 years and his mother is aged about 70

years and both are bed ridden. Therefore,

there is no possibility to have any ill-

treatment to the respondent at their hands.

Inspite of this, the respondent is not ready

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to cohabit with appellant. The respondent

treated him with mental cruelty, for a long

period of 13 years and with a malafide

intention to get maintenance allowance, the

respondent is refusing to cohabit with him.

Since the year 1998, the respondent is

residing separately from the appellant.

Therefore, on these grounds, the appellant

filed Petition for divorce before the Family

Court, Aurangabad bearing Petition

No.A-266/2009 on 24th July, 2009 and prayed

for grant of a decree of divorce against the

respondent.

3. The respondent-wife filed written

statement in the Petition and admitted her

marriage with the appellant. The respondent

has specifically denied that, she is residing

separate from the appellant, with malafide

intention to grant maintenance allowance.

Respondent pleaded that, after marriage, she

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went to reside at the house of the appellant.

At that time, the elder brother and mother of

the appellant were suffering from mental

illness. The grand-mother of the appellant is

residing with the appellant and on an

instigation of his grand-mother, the

appellant used to abuse and assault her. The

grand-mother of appellant also used to abuse

and ill-treat her. Therefore, according to

the respondent, she started residing separate

from the appellant.

4. After considering the afore-said

pleadings of the parties, and considering the

oral as well as documentary evidence brought

on record, the Family Court dismissed the

Petition for divorce. Hence this Family Court

Appeal.

5. Learned counsel appearing for the

appellant invites our attention to the

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evidence on record, and submits that, the

Family Court at Aurangabad answered the issue

as regards cruelty in negative, by relying

only on observation of the Family Court,

while considering the request of the present

respondent, for grant of maintenance under

section 18 of the Hindu Adoption and

Maintenance Act, to the effect that, the

appellant treated respondent – wife with

cruelty, and therefore, she has justifiable

ground to reside separate from the appellant.

According to appellant, the said finding

should not have been relied upon on the

grounds that, (i) the order granting

maintenance under section 18 was an ex-parte,

(ii) the degree of proof required under

section 18 of Hindu Adoption and Maintenance

Act and one required under section 13 of the

Hindu Marriage Act, are completely different,

(iii) assuming without admitting, it was

permissible for Family Court to borrow the

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findings recorded in earlier proceedings

between the parties, an opportunity to rebut

any inference arising from its existence by

leading other evidence or to explain the

facts and circumstances under which such a

finding came to be recorded, ought to have

been given before relying upon the same.

(iv) the Family Court ought to have apply its

mind to the fact that, said finding had been

recorded way back in the year 2002 and

proceedings for divorce are filed in the year

2009.

6. It is submitted that, the

respondent-wife did not examine any witness

in support of her contention that, the father

of appellant and his sister subjected her to

ill-treatment. In absence of any evidence in

support of her plea of alleged ill-treatment

by the relatives of appellant, the Family

Court should not have assumed that respondent

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had a reason to live separate from the

appellant.

7. It is submitted that, the Family

Court discarded the appellant’s plea of

cruelty by observing that, the pleadings of

appellant are vague, as the appellant

specifically stated in the petition that, on

one or the other pretext the respondent used

to reside at her parental home, and she

refused to stay with appellant in spite of

repeated requests being made to her. Thus,

the necessary inference capable of being

drawn from this is that, respondent-wife

withdrew herself from performing marital

obligations towards appellant-husband and as

such, she subjected husband to mental

cruelty.

8. It is submitted that, the wife had

admitted in her cross examination that, she

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was residing separate from husband since 6 to

7 years. Though she tried to add that

whenever husband used to call her during

aforesaid period, she went there to help him.

First of all, she had not brought any

independent evidence in support of it, and

secondly, she deposed exactly opposite,

contrary and inconsistent with her own

pleading. She categorically stated in her

written statement that, the relatives of

husband used to visit her at her mother’s

house. Thus, her version in her deposition is

not trustworthy and full of contradictions.

Thus according to appellant, he proved the

factum of separation.

9. It is submitted that, there is no

evidence on record that during the period of

separation, she had expressed her desire to

cohabit with husband in the light of possible

change in circumstances as exist, when she

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left the husband. On the contrary she had

filed two applications in the year 2005 and

in the year 2009, for seeking enhancement of

maintenance amount without expressing her

desire to join the company of husband. It is

submitted that, the husband shown willingness

to cohabit with respondent while replying her

application seeking enhancement in amount of

maintenance. Thus there was clear intention

on her part to bring cohabitation completely

to an end.

10. It is further submitted that, it is

not necessary that intention to bring

cohabitation completely to an end and

separation shall co-exist. The intention to

bring cohabitation completely to an end can

be formed subsequently, and the facts

involved in present case in hand clearly

shows that, her intention to bring

cohabitation completely to an end has been

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formed subsequently. Without prejudice to the

contentions raised hereinabove, it is

necessary to look present case also from the

point of view that, the parties are residing

separately since more than 15 years and

making allegations against each other. There

is no child also, which would act as an

catalyst. Attempts at reconciliation proved

futile and marriage is otherwise dead

emotionally and practically also. In view of

this, it would be just and proper to order

decree of divorce. Learned counsel appearing

for the appellant has placed reliance on the

reported judgments in the cases of Adhyatma

Bhattar Alwar V/s Adhyatma Bhattar, Sri

Devi1, Lachman Utamchand Kirpalani V/s Meena

alias Mota2 and Satish Sitole V/s Ganga3, and

submits that, the Appeal may be allowed.

11. Learned counsel appearing for the

1 AIR 2002 SC 88
2 AIR 1964 SC 40
3 AIR 2008 SC 3093

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respondent- wife relied upon the findings

recorded in the impugned judgment of the

Family Court. It is submitted that, since the

allegations levelled by the husband are vague

and general in nature, the Family Court has

rightly rejected the Petition filed by the

husband for decree of divorce. It is

submitted that, the Family Court has properly

appreciated the evidence of the parties and

dismissed the Petition. Learned counsel,

therefore submits that, the Family Court

Appeal may be dismissed.

12. We have given careful consideration

to the submissions advanced by learned

counsel appearing for the parties. With their

able assistance, we have perused the original

record and proceedings and also the grounds

taken in the Appeal.

13. We have carefully perused the

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evidence led by the appellant. The

examination in chief is as per the pleading

in the Petition. The evidence of the husband

shows that, after marriage, the respondent-

wife repeatedly used to visit and stay at her

parental house. The appellant tried to bring

respondent back several times, but she did

not come. The appellant further deposed that,

his grand-mother is aged about 90 to 91 years

and his mother is aged about 70 years and

both are bed ridden. Therefore, there is no

possibility to have any ill-treatment to the

respondent at their hands. Inspite of this,

the respondent is not ready to cohabit with

appellant. The respondent treated him with

mental cruelty, for a long period of 13 years

and with a malafide intention to get separate

maintenance allowance, the respondent is

refusing to cohabit with him. Since the year

1998, the respondent is residing separately

from the appellant.

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14. We have perused the cross-

examination of the appellant, the appellant

has specifically admitted that, his grand

father was serving as Assistant Deputy

Commissioner and his grand mother is

receiving pension of Rs.4500/- per month. He

further admitted that, his mother is also

receiving pension of Rs.4000/- per month. He

further admitted that, he along with

respondent stayed at Kannad for about six

months. The appellant has further admitted

that, he is ready and willing to maintain the

respondent.

15. The Respondent has examined herself

at Exhibit-26. In her examination in chief

she deposed that, she never visited

frequently to her parental house. She deposed

that, her father-in-law and sister-in-law

used to abuse and assault her. Grand-mother

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of the appellant also used to assault her.

She used to tell these facts to the relatives

of the appellant, but they used to give

understanding to her. She further deposed

that, elder brother and mother of appellant

are suffering from mental illness. She

further deposed that, she never ill-treated

the family members of the appellant. She

further deposed that, due to ill-treatment

given by the family members of the appellant,

she is now residing separately.

During the course of cross-

examination, respondent deposed that, since

last 6 to 7 years, she is residing separately

from the appellant. When a specific question

was put to her by the appellant, whether she

is ready to cohabit with him, respondent

stated that, she is not ready to cohabit with

him because on the say of his grand-mother

and sister, he used to ask her to leave the

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house even at odd hours, he used to assault

her on the instigation of her younger sister

Manjushri Purkar.

16. We have already narrated the

pleadings of the parties and the evidence

tendered by them. The appellant has prayed

for divorce mainly relying on two grounds

viz:- after marriage, respondent – wife has

treated him with cruelty, and further she has

deserted the appellant. Upon careful perusal

of the entire evidence placed on record, we

are of the considered view that, the

allegations made by the appellant regarding

cruelty are too vague and general in nature.

A decree of divorce on the ground of cruelty

cannot be granted on the basis of general

allegations, without mentioning the manner in

which the wife has ill-treated the husband.

General allegations that, the wife used to

often visit her parental house, she used to

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harass the appellant mentally, cannot

constitute the cruelty. So far as the

allegation that, respondent – wife deserted

the appellant without any valid reason is

concerned, the appellant has not produced on

record any cogent and reliable evidence to

that effect. It is the matter of record that,

the respondent – wife has filed C.Petition

No.44/2001 against the appellant before the

Family Court, Aurangabad under section 18 of

the Hindu Adoption and Maintenance Act. In

the said Petition, the appellant was directed

to pay the maintenance allowance at the rate

of Rs.1500/- per month to the respondent. In

the said Petition, the Family Court has

specifically held that, the appellant treated

the respondent-wife with cruelty and

therefore, she has justifiable ground to

reside separate from the appellant. Thus, it

is clear that, there is no substance in the

allegation of the appellant that, the

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respondent has deserted him without any valid

reason.

17. The Family Court has properly

considered the evidence on record to hold

that the allegations levelled by the husband

against the wife do not constitute cruelty.

The Family Court has rightly held that, the

appellant has vaguely contended that, his

grand-mother is aged about 90 to 91 years old

and is bed ridden, however, the appellant has

not produced any medical evidence on record

to prove the said fact. The Family Court has

further observed that, the appellant has

vaguely contended that, respondent treated

him with cruelty, however, he has not given

any details as to how the respondent treated

him with cruelty. After considering the

entire evidence produced on record, the

Family Court has rightly came to the

conclusion that, the appellant has failed to

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prove that, after solemnization of the

marriage, the respondent has treated him with

cruelty and deserted him without any lawful

excuse.

18. Learned counsel appearing for the

appellant in support of his submissions

placed reliance upon the exposition of law in

the case of Satish Sitole (supra), wherein

the Supreme Court has directed the marriage

of the appellant and the respondent therein

shall stand dissolved, subject to the

appellant paying to the respondent a sum of

Rupees Two Lakhs by way of permanent alimony,

in addition to the costs of the appeal

amounting to Rs.25,000/-. However, the facts

of the aforesaid case are altogether

different from the facts of the present case.

In case cited supra, the wife has given

consent for dissolution of marriage with

adequate provision by way of permanent

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alimony for the respondent-wife. However, in

the present case, the appellant has failed to

bring on record any cogent evidence to show

that, the respondent – wife has given consent

for dissolution of marriage.

19. On appreciation of the entire

evidence on record, we find that, the

appellant has not established that the

respondent – wife has treated him with

cruelty and that, she had deserted him

without any reasonable excuse.

20. In the light of discussions

hereinbefore, we are of the considered

opinion that, there is no substance in the

appeal. Hence the Appeal stands dismissed.

[S.M.GAVHANE] [S.S.SHINDE]
JUDGE JUDGE
SGA

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