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Madhu Sangmeshwar Dhyade vs Sangmeshwar Sharanappa Dhyade on 13 July, 2018

1 FCA134.08.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION

FAMILY COURT APPEAL NO.134 OF 2008
IN
M.J. PETITION NO.691 OF 2005

Madhu Sangmeshwar Dhyade … Appellant
v/s
Sangmeshwar Sharanappa Dhyade … Respondent

Mr Sanskar Marathe for Appellant.
None for Respondent.

CORAM : K.K. TATED AND
B.P. COLABAWALLA, JJ.

RESERVED ON : 07 JUNE, 2018
PRONOUNCED ON : 13 JULY, 2018.

JUDGMENT [ PER B. P. COLABAWALLA J. ] :-

1. At the outset, we must mention that when this matter was

called out in the morning session, none appeared on behalf of the

appellant. It was therefore dismissed for default. Thereafter, in the

afternoon session, the matter was mentioned by the learned counsel

for the Appellant, who stated that he was ready to go on with the

matter. In these circumstances, we have restored the matter back and

heard the learned counsel for the Appellant on the merits of the matter.

VRD
2 FCA134.08.doc

2. This Appeal is filed by the Appellant – wife, taking

exception to the judgment and decree dated 29th May 2008 passed by

the Family Court No.1, Pune at Pune. This judgment was delivered in

a Petition filed by the Respondent – husband for dissolution of

marriage and for a decree of divorce on the ground of cruelty under

section 13(1)(ia) of the Hindu Marriage Act, 1955. By the impugned

judgment, the Divorce Petition filed by the Respondent – husband was

allowed and the marital ties between the Appellant – wife and the

Respondent – husband were dissolved by a decree of divorce as

contemplated under section 13(1)(ia) of the Hindu Marriage Act,

1955.

3. The brief facts giving rise to the present controversy are

that the Respondent – husband and the Appellant – wife were married

as per Hindu rites and ceremonies at Udgir on 28th April 1998. It was

an arranged marriage. The entire expenses of the marriage were

borne by the parents of the Appellant – wife at Udgir. Out of the said

wedlock, the couple was blessed with a son named Jay who was born

on 15th December, 2004.

4. It is the case of the Respondent – husband that soon after

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3 FCA134.08.doc

the marriage, the Respondent – husband noticed that the behavior of

the Appellant – wife was not proper. According to the Respondent –

husband, even though he used to be out of the house for the entire

day, he realized that his mother was under constant pressure as she

was being harassed and tortured by his wife. According to the

Respondent – husband, the Appellant – wife used to allege that his

mother used to commit theft of food-grains and other articles from the

house and would give them to her relatives. When the Respondent –

husband questioned his wife about such allegations, she used to insult

him and subsequently forced the Respondent – husband to get a

separate residence for their livelihood. It is in these circumstances

that the Respondent – husband separated from his mother and brother

and started residing separately.

5. It is the further case of the Respondent – husband that his

wife (the Appellant) deliberately used to ignore the Respondent –

husband and used to insult him in the presence of his parents.

According to the Respondent – husband, the Appellant – wife was

also in the habit of giving threats to commit suicide and put him behind

bars. It is thereafter alleged that the Respondent – husband was

forced in 1998 to visit the parental home of the Appellant during Diwali

as she had threatened to commit suicide.

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4 FCA134.08.doc

6. It is thereafter the case of the Respondent – husband that

in September 1999, due to some quarrel, the Appellant – wife tried to

jump from the fourth floor of the building. The Respondent – husband

however rescued her and brought her back home and therefore the

attempt to commit suicide was avoided.

7. It is the case of the Respondent – husband that in June

2000, the Appellant – wife dashed herself against the wall with a view

to commit suicide. Immediately, the Respondent – husband took her to

Trimurti Hospital at Dhayari where she was treated and brought her

back to home.

8. The next incident that has been averred by the

Respondent – husband is that in the month of August 2000, the

Appellant – wife again ran away from the house with a view to jump in

the canal near the house. At that time also, the Respondent –

husband chased her near the canal and brought her back home.

According to the Respondent – husband, all these acts and incidents

caused tremendous amount of mental agony and pain to him.

9. It is further the case of the Respondent – husband that in

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5 FCA134.08.doc

the month of October 2000, the Appellant – wife picked up a quarrel

with him and thereafter left the matrimonial home and stayed with her

parents for a period of two months. The Respondent – husband even

went to Udgir (where the Appellant – wife’s house is situated) and met

her uncle. After much pursuation, he brought back his wife from the

maternal home. It has also been averred that the Appellant – wife was

reluctant to have a child and finally after certain treatment taken by the

Appellant – wife, they were blessed with a male child (Jay) on 15th

December 2004.

10. It is thereafter contended by the Respondent – husband

that the Appellant – wife again tried to commit suicide on 1st May

2004. At that time, there was some quarrel between the Respondent –

husband and the Appellant – wife. Due to these quarrels, the

Respondent – husband came outside the house along with the son Jay

and requested his neighbour to convince his wife. At that time, the

Appellant – wife had locked the door of the house from inside. The

Respondent – husband and the neighbour (Mrs Lalita Madhavrao

Lanke) knocked on the door of the house and shouted whereupon the

Appellant – wife opened the door and started shouting as she was

ablaze. She was suffering from serious burn injuries. The Respondent

– husband therefore with the help of his neighbour (Mrs Lanke) shifted

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6 FCA134.08.doc

the Appellant – wife to Adate Hospital where she was given treatment

for a period of 35 days.

11. It is the further case of the Respondent – husband that on

6th June 2005, the mother of the Appellant – wife brought their son Jay

from the house to the Hospital. Since the mother of the Appellant –

wife had not return back with the child Jay, the Respondent – husband

went back to Adate Hospital along with his mother when they were

informed that the Appellant – wife and her parents had taken a

discharge from the Hospital against medical advice and they had left

for Udgir. The Respondent – husband immediately tried to contact the

Appellant on her mobile phone which was switched off. Finally, at

10.30 p.m., the Respondent – husband was informed by the uncle of

the Appellant that the Appellant has come to Udgir along with the child

and they were staying there. Thereafter, the Respondent – husband

made several attempts to bring back the Appellant – wife at

matrimonial home, but without any success. It is in these

circumstances and due to all these incidents that had taken place, that

the Respondent – husband finally filed a Petition for divorce on 2nd

September, 2005 on the ground of cruelty as contemplated under

section 13(1)(ia) of the Hindu Marriage Act, 1955.

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7 FCA134.08.doc

12. Once this Petition was served upon the Appellant - wife,

she appeared in the matter and controverted all the allegations in her

written statement (Exh.13). The Appellant - wife denied almost all

the allegations leveled against her in the Petition. She denied that she

was cruel to the Respondent during the entire period of co-habitation .

She further denied that she used to pick up quarrels with the

Respondent - husband and his mother on flimsy grounds or that the

Respondent - husband was required to shift his residence only

because she had insisted for the same. On the contrary, it was her

case that it was at the instance of the Respondent - husband that the

residence was shifted as it was more convenient for him to commute to

his place of work. In a nutshell, it was denied that she has caused

any mental agony or pain to the Respondent - husband due to her

behaviour.

13. As far as the burning incident that took place on 1st May

2005 is concerned, it was the case of the Appellant - wife that at about

8.00 p.m. on that day, the Respondent - husband had gone with their

child Jay on the terrace of the house. The mother of the Respondent -

husband had gone to the temple nearby. The Appellant - wife was

alone at home and was preparing food in the kitchen. At that time, she

attempted to take some material from the nearby shelf and accidentally

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8 FCA134.08.doc

her saree caught fire near the stomach. She then tried to extinguish

the fire by pouring water in the bathroom. She was suffering burn

injuries on her face and other parts of the body for which she was

shifted to Adate Hospital for treatment. She was in the Hospital for 35

days. Thereafter, she was discharged on 6th June 2005 and went to

her parents' house at Udgir. The Appellant - wife has denied that she

left the Hospital behind the back of the Respondent - husband and the

decision to go to Udgir was taken in consultation with the Respondent

- husband. It is also her case that due to the burning incident, she had

white spots and various burn marks on parts of her body which is why

the Respondent - husband was trying to divorce her. As such, it was

contended that the Respondent - husband had filed a false Petition

claiming a decree of divorce by narrating a false version of the incident

before the Court which, according to the Appellant - wife, had never

taken place.

14. It has been further averred by the Appellant - wife that she

and her family members always supported the Respondent - husband.

Since the Respondent - husband wanted to start a fabrication shop,

the Appellant's father gave a sum of Rs.1,00,000/- to the Respondent -

husband to start the same. Thereafter, the Respondent - husband

demanded another sum of Rs.1,00,000/- from the father of the

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9 FCA134.08.doc

Appellant. However, her father gave only Rs.50,000/- and by reason of

which the Respondent - husband got annoyed and decided to severe

the matrimonial ties with the Appellant. It was averred that the

Appellant - wife had already filed a Petition seeking restitution of

conjugal rights in Udgir Court bearing FCA No.58 of 2005. She

accordingly stated that the Petition filed by the Respondent - husband

was false and should be dismissed. We must mention here that the

learned counsel appearing on behalf of the Appellant fairly stated

before us that this Petition (being FCA No.58 of 2005) filed in the Udgir

Court by the Appellant was not prosecuted by her and the same has

been dismissed for default.

15. Be that as it may, on the aforesaid pleadings, the Family

Court framed the following issues and gave its findings thereon as per

the evidence led by both parties. They are as under :-

                   ISSUES                                  FINDINGS
"1) Does the petitioner prove that
the Respondent wife treated
him with cruelty as stated in
para nos.7 to 11 of the
Petition ? Proved

2) Does the Respondent prove that
after the incident dated
1.5.2005 the Petitioner sent her
to parental home at Udgir and
since then he has deserted
her ? Not proved.

VRD
10 FCA134.08.doc

3) Whether the Respondent prove
that the Petitioner treated her
with cruelty as contended in
para 12 of the written
statement ? Not proved.

4) Is the Petitioner entitled to a
decree of divorce as sought ? Yes.

5) What relief, order and costs ? As per final order."

16. After considering the pleadings and the evidence led by

the parties, by a detailed judgment, the Family Court allowed the

Petition filed by the Respondent - husband on the ground of cruelty as

contemplated under section 13(1)(ia) of the Hindu Marriage Act, 1955.

The ground on which the Petition was allowed was with regard to the

burning incident that took place on 1st May, 2005. All the other

grounds of alleged cruelty were negated by the Family Court. It is

aggrieved by this judgment that the Appellant - wife is before us in the

present Family Court Appeal.

17. On the basis of pleadings, the following points arise for our

consideration:-

(1) Whether the Respondent - husband has
made out a case for divorce under
section 13(1) (ia) of the Hindu Marriage Act, 1955? YES.

VRD
11 FCA134.08.doc

(2) Whether the Appellant - wife has made out
a case for interference in the judgement
and decree dated 29.05.2008 passed
by Family Court No.1, Pune at Pune? NO.

Both the points are decided together as per the discussion that will

follow.

18. The learned counsel appearing on behalf of the Appellant

- wife has taken us through the impugned judgment in great detail as

well as the pleadings and the evidence led by the respective parties.

The evidence of the Respondent - husband can be found from pages

53 to 72 of the paper-book. As far as the incident of 1st May, 2005 is

concerned, the husband has led evidence in this regard which can be

found at paragraphs 14 to 16 of the affidavit of the examination-in-chief

(pages 56 and 57 of the paper-book). It is stated on oath by the

Respondent - husband that on 1st May 2005, the Appellant asked him

for going to her parents' house. However, due to the care of the child,

and as the summer was very hot at Udgir he suggested not to go. On

this suggestion being made, the Appellant - wife started quarreling

with him and therefore he took his son (Jay) outside and requested his

neighbour (Mrs Lanke) and who was a friend of the Appellant - wife to

convince her. However, by then, the Appellant - wife closed the door

of the house from inside. Thereafter, immediately Mrs Lanke and

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12 FCA134.08.doc

Respondent - husband requested the Appellant - wife to open the

door which she did not but in a few minutes started shouting and

thereafter opened the door when it was seen that she was ablaze and

had several burn injuries. With the help of the neighbours, the

Respondent - husband took the Appellant - wife to Adate Hospital for

treatment where she was admitted till 6th June, 2005. It has been

stated on oath by the Respondent - husband that on 6th June 2005 he

visited the Appellant and left for his job. Thereafter, the mother of the

Appellant took their child Jay to the Appellant - wife at the Hospital.

Since the mother of the Appellant - wife had not returned with the

child after about 2 / 3 hours, the mother of the Respondent - husband

along with his neighbour went to the Hospital. At that time, it was

found that the Appellant - wife and her parents had left the Hospital

without either informing the Respondent - husband or his mother. This

fact was informed to the Respondent - husband by his mother. The

Respondent - husband anticipated that all of them might have gone to

Udgir, and therefore tried to contact the Appellant - wife on her mobile

phone which was switched off. He thereafter contacted the uncle of

the Appellant and asked the whereabouts of the Appellant. At 10.30

p.m. the Respondent - husband was informed that the appellant with

the child and her parents were at Udgir. Accordingly, on 8th June

2005, the Respondent - husband went to Udgir for a meeting with the

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13 FCA134.08.doc

Appellant and her parents. However, the Appellant and her parents did

not turn up for the said meeting when the Respondent - husband

realized that the Appellant - wife was not interested at all to be with the

Respondent and hence the Respondent - husband requested her

uncle for a divorce. However, the brother of the Appellant had

threatened the Respondent - husband stating that he can do whatever

he likes.

19. With reference to this incident, in the cross-examination,

the Respondent - husband has denied that on 1st May 2005, in the

evening between 7.30 p.m. to 8.00 p.m., the Appellant - wife was

cooking in the kitchen. He has stated that he was present in the house

on that day. In the afternoon, he had gone with his son to the terrace

of the house. He has denied that there was no quarrel between

himself and his wife over any issue. He stated that when he returned

back from the terrace, the Appellant took up a quarrel with him at which

time he went to the house of his neighbour (Mrs Lanke) along with his

son Jay to request her to advice his wife. At that time, the Appellant -

wife closed the door of the house from inside. The neighbour (Mrs

Lanke) being the friend of the Appellant - wife immediately came there

and the Respondent - husband as well as Mrs Lanke asked the

Appellant to open the door which she failed to do. After some time,

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14 FCA134.08.doc

when she opened the door, she was set on fire. Immediately the

Respondent - husband called her uncle and told him about this

incident. The maternal uncle advised to take her to the Hospital and

requested him not to file any police complaint with reference to this

incident. Thereafter, the Respondent - husband and Mrs Lanke took

the Appellant to Trimurti Hospital. Since the doctor was not available

there, they thereafter went to Adate Hospital where the Appellant was

admitted. It is also specifically stated that she took a discharge on 6th

June 2005 against the advice of the doctor.

20. On going through the examination-in-chief as well as

cross-examination for the Respondent - husband on this issue, we do

not find that his evidence has been shattered in any form. To

substantiate the truth of this incident, the Respondent - husband also

led the evidence of Mrs Lalita Madhavrao Lanke who was the

neighbour. In her examination-in-chief, she had categorically stated

that on 1st May 2005 since morning there was a dispute between the

Appellant -wife and the Respondent - husband. The Respondent -

husband came to her house twice and requested her to advice his wife.

In the evening at about 7.00 p.m. the Respondent - husband came to

her house along with his child. He told the said Mrs Lanke that the

Appellant - wife had closed the door from inside and therefore asked

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15 FCA134.08.doc

her to come to his house. She then rushed to the house and many

persons from the building also came there. They knocked the door

which was closed from inside. The Appellant - wife thereafter opened

the door at which time she was ablaze and the clothes on her person

were burning. The fire was put out and after which Mrs Lanke provided

a gown to her. Thereafter, Mrs Lanke and the Respondent - husband

took the Appellant - wife to the Hospital (Adate Hospital) where she

was admitted. She has categorically deposed that she had seen the

incident herself. In the cross-examination she has categorically stated

that the incident took place at about 7.30 p.m. to 8.00 p.m. and the

Appellant - wife opened the door herself. She has further stated that

she has deposed as the incident was seen by her. It is also further

stated in cross-examination that she had good relations with the

appellant - wife. Nothing in the cross-examination of Mrs Lanke

Madhavrao Lanke seems to have shattered her testimony or make it

unbelievable.

21. On the other hand, with reference to this incident, the

Appellant - wife has deposed in paragraphs 13 to 15 of her

examination-in-chief. In these paragraphs, the same story has been

reiterated as mentioned in the written statement viz. that she did not

put herself on fire but her clothes accidentally caught fire while she was

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16 FCA134.08.doc

cooking. She has stated that she went to her parents' house because

she was still weak from the burn injuries and it was difficult to expect

an early recovery and it is in these circumstances that she decided to

go to Udgir (her parents' house) and this was done at the instance of

the Respondent - husband.

22. In the cross-examination of the Appellant - wife, the

incident of burning is admitted but her version is quite the opposite

than what has been deposed by the Respondent - husband as well as

Mrs Lanke (the neighbour). It is an admitted fact that when the

incident of burning took place; she was admitted to Adate Hospital and

that after discharge from the Hospital, she went to her parental house

at Udgir. She, however, has stated that she went to her parental

house because the Respondent - husband was not there. This clearly

shows that her husband was not present and that on the day of her

discharge, her mother and her child were present in the Hospital. She

has further admitted that from the time of her discharge, for a period of

two years, she was residing in her parental house upto 9th May, 2007.

She has also stated in her cross-examination that except for her oral

words, she has no other evidence. In contrast, it is the categorical

case of the Respondent - husband that the Appellant - wife took a

discharge from the Hospital without informing him and thereafter

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17 FCA134.08.doc

proceeded to her parental house without his knowledge, and that too

with their child (Jay). Looking to all this, the story put up by the

Appellant - wife, at least to our mind, is not believable.

23. What is also important to note is that in the cross-

examination at paragraph 21, (page 93-94 of the paper-book), the

Appellant - wife has also admitted that she has lodged a complaint

against the Respondent - husband as she was allegedly dragged out

of the Respondent - husband's house. In this regard, she has

admitted that she has lodged a complaint under section 498A of the

Indian Penal Code. This complaint was filed against the Respondent

- husband, his brother Parameshwar, his mother, and the second wife

of his brother in law - Nikita. What has happened further in this

complaint is not mentioned anywhere in her evidence.

24. Apart from examining herself, the Appellant - wife has

also examined Dr Nivrutti G. Nadate, being the doctor who treated the

Appellant. In his examination-in-chief, he has clearly stated that the

Appellant was admitted to the hospital by her neighbour and her

husband and on 6th June 2005, she was discharged as per the request

of her relatives.

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18 FCA134.08.doc

25. What we find is that all this evidence has been duly

considered by the Trial Court in the impugned judgment. The findings

of the Trial Court on this issue (the burning incident) are from

paragraph 22 onwards. The Trial Court in paragraph 28 thereafter

holds that on a careful and close scrutiny of the entire evidence, it had

no hesitation to accept the case of the Repsondent - husband that it

was the Appellant - wife who had treated him with cruelty. It was

therefore held that the circumstances created were such that the

Repsondent - husband could not reasonably be accepted to co-habit

with the Appellant - wife. In these circumstances the Trial Court

allowed the Petition filed by the Reposndent - husband and dissolved

the marriage by a dedcree of divorce as contemplated under section

13(1)(ia) of the Hindu Marriage Act, 1955.

26. As mentioned earlier, we too have carefully gone through

the pleadings of the parties and the evidence led in the above matter.

We are in full agreement with the analysis of the evidence done by the

Trial Court as well as the findings arrived at thereon. We are of the

opinion that the view taken by the Trial Court is the correct one when it

came to a finding that the Respondent - husband was treated with

cruelty by the Appellant - wife and hence was entitled to a decree of

divorce under section 13(1)(ia) of the Hindu Marriage Act, 1955. In

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19 FCA134.08.doc

these circumstances, we do not think that the impugned judgement

and decree of the Trial Court warrants any interference.

27. For all the foregoing reasons, we find no merit in this

Appeal. It is therefore dismissed. However, in the facts and

circumstances of the case, we leave the parties to bear their own

costs.

  (B. P. COLABAWALLA, J.)                           (K.K. TATED, J.)

VRD

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