SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Mrs. Nita W/O. Rahul Thakur vs Rahul S/O. Murdlidhar Thakur on 4 December, 2019

903FCA 49 (copy).16.odt
1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO. 49 OF 2016.

Mrs. Nita w/o Rahul Thakur,
Aged about 29 years,
Occ. Household,
R/o C/o Prakash Wasudeo Lande,
Nage Layout, Kaulkhed, Akola,
Tq. and District Akola.
…APPELLANT.

Versus

Rahul s/o Murlidhar Thakur,
Aged about 33 years, Occ. Service,
R/o PWD Quarters Colony,
Behind PWD Rest House, Allapali,
Tq. Aheri, District Gadchiroli.
…RESPONDENT.

————————————————————————————————
Shri M. Badar, Advocate for the appellant.
Shri S.V. Sohoni, Advocate for the respondent.
————————————————————————————————————

CORAM : Z.A. HAQ AND
PUSHPA V. GANEDIWALA, JJ.

DATE OF RESERVING THE JUDGMENT : 11.10.2019.

DATE OF PRONOUNCING THE JUDGMENT : 04.12.2019.

JUDGMENT : (PER PUSHPA V. GANEDIWALA, J.)

A decree of divorce in favour of the respondent-husband
passed by the Family Court, Akola in Petition No.A-79/2014 dated
28/12/2015 is challenged in this appeal.

2. The respondent-husband filed a Petition for divorce
under Section 13(1)(i-a) of the SectionHindu Marriage Act, 1955
(hereinafter referred to as “the Act of 1955”) on the ground of

::: Uploaded on – 04/12/2019 05/12/2019 04:47:14 :::
903FCA 49 (copy).16.odt
2

cruelty, wherein the appellant-wife filed a counter claim for
restitution of conjugal rights under Section 9 of the Act of 1955.

3. The learned Judge, Family Court, Akola tried both the
petitions together and passed the impugned judgment, thereby
dismissed the wife’s petition for restitution of conjugal rights and
granted decree of divorce in favour of the respondent-husband.

4. It is not disputed that the marriage between the parties
was solemnized on 02.01.2005 according to the Hindu rites and
rituals, at Akola. Out of this wedlock, they have one daughter
“Aashna”. After marriage, the couple stayed at Aurangabad for eight
days and thereafter, they went to Allapalli, District Gadchiroli,
where the respondent-husband was working in Public Works
Department as an Engineer.

5. The case of the respondent-husband, in brief, may be
stated as under:-

i. That just after one month of marriage, when the
respondent expressed his wish to visit his parents at
Aurangabad, the appellant created a violent scene
and very aggressively denied to visit Aurangabad.
She stretched this issue and thereafter stopped
talking with the respondent. It is stated that
whenever the guests of the respondent used to visit
his house, the appellant used to take least interest to
attend them. On the contrary, whenever the relatives
of the appellant used to visit their house, she used to
give special treatment to them. The respondent used
to cook food on his own. Though, he informed about
the appellant’s adamant behaviour to her parents, but

::: Uploaded on – 04/12/2019 05/12/2019 04:47:14 :::
903FCA 49 (copy).16.odt
3

all efforts were in vain.

ii. It is further stated that when the appellant was
pregnant, the respondent used to take all possible
care of her. Besides this, his mother organised a
grand 7th month’s ceremony. When the apellant –
wife gave birth to a girl child at her parent’s house in
Akola, the respondent and his parents immediately
visited Akola to see child. It is stated that though five
months had passed after delivery, the appellant had
not come back to her matrimonial house and even
naming ceremony of the child was performed
hurriedly and with short notice to the respondent and
therefore the respondent couldn’t attend the same.

iii. The respondent in his petition mentioned some
more incidents of her abnormal and violent
behaviour. The respondent pleaded that when, in
March 2009, the respondent was in Nagpur for
official purpose, he visited his cousin sister at Nagpur
without informing the appellant because of her
nature, and when he came back to Allapalli with his
cousin, the appellant had created a scene and had
abused him in filthy language. Seeing this, his cousin
had immediately left their house.

iv. The respondent further stated that in October-
2009, the appellant again quarreled with the
respondent and had given him threats of suicide
which caused him to go to Nagpur due tomental
pressure. In his absence, the parents of the appellant

::: Uploaded on – 04/12/2019 05/12/2019 04:47:14 :::
903FCA 49 (copy).16.odt
4

brought her to Akola from Allapalli and since then,
she was residing at her parental house.

v. It is further stated that on 25/06/2011, the
respondent somehow managed to conduct a meeting
at Nagpur to sort out the matter, but to his
disappointment, her parents gave himthreats of
serious consequences and without solving the
problem, they left the meeting.

vi. The respondent further stated that thereafter, he
approached the Family Counseling Centre at Police
Station, Ambazari, but theappellant did not attend
the same. The respondent asked the appellant for
going through counseling, but she denied the same
and such conduct of the appellant caused mental
cruelty to the respondent. Based on these allegations,
he claimed the decree of divorce under Section 13(1)
(i-a) of the SectionHindu Marriage Act, 1955.

6. In her written statement, the appellant – wife denied all
the adverse allegations. She specifically pleaded about some of the
incidents of cruelty at the hands of respondent and his relatives,
which may be stated as under:

i. That after one month of her marriage, she along
with the respondent had gone to Lonavala with two
other couples, however, the sister of the respondent
never allowed her to speak freely with him.

ii. The parties then had gone to Mumbai at the house
of one of the aunt of the respondent. On reaching the

::: Uploaded on – 04/12/2019 05/12/2019 04:47:14 :::
903FCA 49 (copy).16.odt
5

said place, she was surprised to see her parents-in-
law there. Inspite of the fact that she was feeling
uneasy on account of over exertion, the respondent
had fought with her, while she was tortured by his
relatives.

iii. Thereafter, they had gone to the parents of the
respondent at Aurangabad. During this period, she
was treated like a maid servant by her mother-in-law.

iv. That during her first pregnancy, both the parties
had gone to Nagpur for Vastushanti ceremony, which
was to be held in the house of one of the Aunt of the
respondent. There also, the mother of the respondent
and his Aunt treated her like a servant, due to which
she suffered a mis-carriage.

v. In Dussehra of the year 2005, the respondent even
tried to suffocate her by pressing her neck. He used
to come late from office in a drunk condition and
used to beat her after quarreling with her.

vi. On 01/01/2007, the appellant gave birth to a
daughter. Neither the respondent nor any of his
relatives attended the naming ceremony of the new
born child held at Akola. In April-2007, the
respondent had taken her and her daughter to
Aurangabad.

vii. The respondent compelled her to undergo
abortion on her second time pregnancy.

viii. In August-2011, the appellant got a shock when

::: Uploaded on – 04/12/2019 05/12/2019 04:47:14 :::
903FCA 49 (copy).16.odt
6

she received the summons of the divorce petition
filed by the respondent at Allapalli. Upon questioning
about the same, according to the appellant, the
respondent started abusing her and beating her
saying that he wanted a divorce from her. On the
same day, the respondent drove her and her
daughter out of the house. They somehow reached
Akola where they are now residing at the mercy of
her parents.

7. Based on the pleadings of the parties, the Trial Court
framed the necessary issues.

8. The respondent examined himself at Exh.21 besides
examining his father – Murlidhar Thakur at Exh.22 and his brother –
Rohit Thakur at Exh.25. The appellant-wife examined herself at
Exh.38 and closed her evidence.

9. On considering the pleadings and evidence of the
parties, the Trial Court reached to the conclusion that the
respondent-husband could establish the ground of cruelty for the
decree of divorce as contemplated in law. Accordingly, the Trial
Court granted decree of divorce in favour of the respondent and
dismissed counter claim of the appellant-wife for restitution of
conjugal rights.

10. Shri M. Badar, learned Advocate appearing for the
appellant-wife argued that the Trial Court has failed to consider the
evidence of the appellant wherein she has denied all the allegations
leveled by the respondent in his petition for divorce. He submitted
that the mother-in-law of the appellant treated her like a servant
due to which she suffered mis-carriage. Also, in 2005, the

::: Uploaded on – 04/12/2019 05/12/2019 04:47:14 :::
903FCA 49 (copy).16.odt
7

respondent tried to press her neck. He further submitted that the
behaviour of the respondent with the appellant was very bad
inasmuch as he used to beat her under the influence of liquor so
also used to abuse her in a very filthy language. He further
submitted that, after receiving the summons of divorce petition filed
by the respondent, the appellant asked about the same on which he
started abusing her saying that he wanted divorce from her and on
the same day, he drove out the appellant and her daughter out of
his house. In such circumstances, the respondent himself has
deserted the appellant. As far as the counter claim filed by the
appellant is concerned, learned Advocate for the appellant
submitted that looking to the daughter’s future only, she wants to
again reside with the respondent and hence, she filed the counter
claim thereby praying restitution of conjugal rights. The learned
advocate relied on the following judgments of the Hon’ble Apex
Court in support of his arguments:-

i. Dr. N.G.Dastane Vs. Mrs. S.Dastane , reported in
AIR 1975 SC 1534.

ii. Union of India Vs. Ibrahim Uddin Anr. , reported
in 2012(5) ALL MR 462.

iii. Vishnu s/o Babanrao Yadav Vs. Nalini w/o Vishnu
Yadav, reported in 2018 (6) ALL MR 629.

iv. Shri Rajesh Hariba Patil Vs. Sou. Ranjana Rajesh
Patil, reported in 2014 (5) ALL MR 507.

11. Shri S.V. Sohoni, learned Advocate appearing for the
respondent supported the reasons given by the Trial Court on the
basis of which, his claim for decree of divorce under Section 13(1)

::: Uploaded on – 04/12/2019 05/12/2019 04:47:14 :::
903FCA 49 (copy).16.odt
8

(i-a) of the Act of 1955 is granted. Learned Advocate for the
respondent also submitted that the appellant did not respect the
sentiments of the respondent and his family members. He also
argued that the appellant failed to discharge her matrimonial
obligations either towards her husband or even towards his old
parents. He also submitted that the respondent had duly discharged
his burden to prove the case set up by him whereas the appellant
failed to discharge her burden and even could not prove her
defence and thus prayed for rejection of the appeal.

12. We have considered the submissions advanced by the
learned advocates on behalf of both the parties. We have also
perused the pleadings of the parties and evidence on record. The
following points arose for our determination:-

i) Whether the respondent-husband proved cruelty
at the hands of the appellant-wife as contemplated
under Section 13(1)(i-a) of the Act of 1955?

ii) Whether the Trial Court is right in granting
decree of divorce on the ground of cruelty.

13. At the outset, though the pleadings and evidence of the
respondent, at a first glance do not seem to be sufficient for grant of
decree of divorce as contemplated under the Act of 1955, however,
on careful reading of the instances as set out in the pleadings and
the attempt of the respondent to amicably settle the matter through
counseling and the apathy shown by the appellant for co-operating
in the counseling and the separation of the couple for more than 8
years at the time of filing of the petition for divorce, we are of the
view that the Trial Court has properly appreciated the evidence on
record. The bitter relationship between the parties and the mental

::: Uploaded on – 04/12/2019 05/12/2019 04:47:14 :::
903FCA 49 (copy).16.odt
9

trauma suffered by the respondent at the hands of the appellant
due to appellant’s adamant behaviour for not co-operating the
respondent in living his social life, must receive quietus.

14. The respondent in his pleadings, supported by his
affidavit in evidence, deposed about the violation and aggressive
nature of the appellant which caused mental trauma to the
respondent. Even after the delivery of first child, she did not listen
to him to come to her matrimonial house and stayed with her
parents for a long period of more than six months.

15. Even on visit of his cousin sister from Raipur, she had
created a violent scene. For that purpose, his cousin had left their
house immediately. In front of his cousin, the appellant had abused
him in a filthy language and used the words like “Salya Kutrya”. He
also deposed that the appellant was in the habit of creating lot of
problems on petty issues and without understanding anything, she
used to blame him or his parents and used to abuse them. In 2009,
the appellant had quarreled with him and had given threats of
committing suicide. Under mental trauma, he had gone to Nagpur
to his Uncle’s house. In his absence, the parents of the appellant had
brought her at their house at Akola and since then, the appellant
had been residing at her parents house.

16. As regards amicable settlement out of the Court, the
respondent deposed that his relatives tried to settle the matter
amicably, but all their efforts went in vain. Even when a meeting
was organized at Nagpur on 25/06/2011 and all his relatives had
come at Nagpur, the parents of the appellant did not co-operate in
the meeting and left the meeting after using filthy language.
Thereafter, the respondent had approached the Family Counseling

::: Uploaded on – 04/12/2019 05/12/2019 04:47:14 :::
903FCA 49 (copy).16.odt
10

Centre at Police Station, Ambazari and when the counselor called
the appellant at Centre for counseling, she agreed to attend the
office but did not come. As all the efforts of respondent failed and
when he realised that the appellant does not want to change her
behaviour and was not interested in developing good relations with
him and his parents, he felt that his matrimonial life has been
spoiled and due to the conduct of the appellant, he filed the petition
for divorce on the ground of cruelty. In his cross-examination, he
denied all the adverse allegations and suggestions.

17. As against this, the appellant in her affidavit in lieu of
evidence denied all the allegations as pleaded by the respondent
and specifically pleaded that whenever she used to visit
Aurangabad at her parents-in-law’s place, they used to treat her as a
maid servant. The respondent was totally under the control of his
mother. At the time of Dussehra in 2005, the respondent tried to
press her neck at Aurangabad during quarrel. In para 6 of her
affidavit, she stated about one incident of April-2005 wherein the
respondent had quarreled with her and had pushed her out of
house under the influence of liquor. When she was pregnant for
second time, she was taken to the house of Aunt of the respondent
for Vastushanti function and there she was treated as a servant and
therefore she suffered mis-carriage. She has also deposed about one
or two minor incidents of 2007. She blamed the aunt and the
mother of the respondent for their interference and instigation in
their married life. As regards settlement, she deposed that the
respondent wants divorce from her and therefore, he called
settlement meetings. She denied all the other adverse allegations
and suggestions.

::: Uploaded on – 04/12/2019 05/12/2019 04:47:14 :::

903FCA 49 (copy).16.odt
11

18. In her cross-examination, she has admitted that since
2009 till 13/10/2015, neither she nor her father had arranged any
meeting through any mediator to facilitate her cohabitation with
her husband. However, she stated that at that moment, she was
ready to go with her husband from the Court itself unconditionally
and today she was not having any grievance against her husband.
She admitted that her husband was regularly paying the school fees
of her daughter. She has admitted that one Dr. Saluja was friend of
her husband while they were at Allapalli. She used to visit Dr.
Saluja for treatment of her Asthama. Her husband had taken her to
Lonavala when they were residing at Allapalli. He had treated her
as a loving husband would treat his wife. She has also admitted that
her 7th month ceremony at the time of her pregnancy was held
lavishly by her mother-in-law and other female relatives at Allapalli.
She used to be in telephonic contact with her parents from Allapalli.
In para 21 of her cross-examination, she has also admitted that after
her marriage, the respondent had in the intervening years
purchased gold ornaments for her as and when it was possible for
him to do so. She has also admitted that her father had not made
any gold ornaments for her in her marriage. She had completed her
B.A. after her marriage.

19. On careful reading of the cross-examination of the
appellant, it is proved that whatever allegations were made by her
in her written statement against the respondent are contrary to her
answers during her cross examination. The respondent was treating
her as a loving husband would treat his wife and he used to take
every care. Even, he purchased gold ornaments for her as and when
it was possible for him and in return, she was giving mental trauma
to him, who by nature appears to be a social person. Furthermore,

::: Uploaded on – 04/12/2019 05/12/2019 04:47:14 :::
903FCA 49 (copy).16.odt
12

she has no complaint about the expenses incurred by the
respondent for the education of her daughter. The maintenance
petition under Section 12 of the Protection of Women from
SectionDomestic Violence Act, 2005 and Section 125 of the Code of
Criminal Procedure are already pending for trial.

20. It is pertinent to note that for more than eight years,
prior to filing of this appeal, they were living separately and there
was no attempt on part of the appellant to resume cohabitation.
Even the meeting arranged by the respondent failed because of the
behaviour of the appellant and her parents. In these circumstances,
it can safely be concluded that the marriage between the parties
have been irretrievably broken and the petition for restitution of
conjugal rights filed by the appellant-wife needs to be dismissed
and the Trial Court has rightly dismissed the same.

21. The authorities of Hon’ble Apex Court relied on by the
learned advocate for the appellant – wife, with due respect, are
distinguishable on facts and therefore, are not applicable to the
facts of this case.

22. For the reasons aforestated, we are of the view that the
Trial Court has appreciated the evidence in its proper perspective
and no interference is warranted. Hence, the appeal stands
dismissed with no order as to costs.

JUDGE JUDGE

Sumit

::: Uploaded on – 04/12/2019 05/12/2019 04:47:14 :::

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation