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.
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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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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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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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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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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.doc12. 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.docher 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.docAppellant. 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 ? Proved2) 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.doc3) 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.docRespondent - 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.docAppellant 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.docwhen 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.docher 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.doccooking. 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.docproceeded 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.doc25. 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.docthese 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