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Phulmala Ajay Singh vs Ajay Kumar Singh on 25 January, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 128 OF 2009

Phulmala Ajay Singh ….Appellant
Age : Adult, Occ : Nil.
Re/at C/o. Shri. Faujiram Yadav
40 AC/17, Badrinath Colony,
Rajpur, Chungi, Agra
V/s.
Ajay Kumar Singh
Age : 25 years, Occ. Service
R/at. Flat no.403, Bldg. No.03,
James Court, Vimannagar,
Pune, 411 014. ….Respondent

—–

Mr. R.K. Desai, Advocate for the appellant.

Mr. Uday Warunjikar, Advocate for the respondent.

CORAM :- R.M.SAVANT,

SANDEEP K. SHINDE, JJ.

Judg. Resd on :- 5TH JANUARY, 2018.

Judg. Pron. On :- 25TH JANUARY, 2018.

JUDGMENT (PER :- SANDEEP K. SHINDE, J) :

1 This Appeal under Section 19 of the Family Courts

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Act, 1984 is preferred by the wife i.e. the original

respondent against the judgment and decree dated 13 th

October, 2006 passed by the Family Court, Pune in

Petition No. 406 of 2007 whereby the marriage of the

appellant with the respondent was dissolved on the

ground of cruelty and counter-claim of the appellant-wife,

for restitution of conjugal rights was dismissed.

2. The respondent, who is the husband, had filed

Petition No. 406 of 2007 for divorce on the ground of

cruelty. It is the case of the respondent that, soon after

the marriage i.e. 20th April, 2006 wife picked up quarrels

recurringly with him and parents on various counts

which made his life miserable. It is his case that, her

temperament seldom matched with his temperament.

That the stubborn attitude of the wife was found not

compatible with the family traits. It is his case that, she

lived with him in the matrimonial house initially in April,

2006 till 5th June, 2006 and from 2nd September, 2006 till

15th September, 2006. It his case that, on 24th January,

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2007 she broke opened the lock of the matrimonial house

in his absence and in the absence of his parents and again

left for her parents’ house on 15th February, 2007. He

thus pleaded hostile attitude of his wife, eventually all his

efforts to reconcile the differences failed. It is his case

that, upon realising that his wife was not interested to

cohabit with him and having found that her nature and

attitude was not compatible to his nature and having

further realised that, it was not possible to live together,

he had filed a petition on 13th October, 2006 in the Family

Court for dissolution of marriage on the ground of cruelty.

3. He amended his petition on 3rd March, 2008

after notice to wife and brought on record subsequent

events to substantiate the fact that rigid nature and

revengeful attitude of his wife caused cruelty, and in the

given circumstances, it was not possible to live with her.

In other words, the husband sought a decree of dissolution

of marriage on the ground of mental cruelty inflicted by

his wife.

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4. That, in the written statement, the appellant

denied the allegations and contended that, the petitioner

and her in-laws were making unlawful demands though

sufficient dowry was given in lieu of marriage, and

subjected her to harassment. She contended that, she

visited her parents house as her mother was not well.

She contended that, because of continuous harassment by

husband and in-laws, she was left with no choice but to

lodge a complaint against the petitioner and her in-laws

under Section 498A of the Indian Penal Code at Agra, U.P.

She would also contend that, she was interested to cohabit

with the respondent and thus preferred a counter-claim

seeking decree of restitution of conjugal rights.

5. The parties to the petition led oral evidence of

themselves and their respective witnesses. Besides,

parties placed on record, documents in the shape of

complaints to the police, notices issued by the lawyers,

the sale-deed, FIR and such other proceedings initiated

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against the husband under the Domestic Violence Act.

6. The Learned trial Judge after appreciating the

evidence, dissolved the marriage and dismissed the

counter-claim of the wife by the judgment and decree

dated 24th June, 2009. That against the said judgment

and decree, wife has preferred this Appeal.

7. Heard Learned Counsel for the petitioner,

appellant and the respondent. Perused the evidence.

8. The points that arise for consideration are,

(i)Whether the decree of dissolution of marriage

passed by the trial Court, was just and proper ?

(ii)Whether from the facts and circumstances

brought on record by the parties, would it be

reasonable to hold that, the parties would live

together after living apart nearly for eleven

years ? and

(iii)Whether the appellant, wife has made out a

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case for granting the decree of restitution of

conjugal rights.

9. It is an admitted fact that, the appellant lived in

the matrimonial house with the husband for very short

time i.e. initially from 20th April, 2006 to 5th June, 2006;

from 2nd September, 2006 to 15th September, 2006, and

from 24th January, 2007 to 15th February, 2007. It is not

in dispute that since, 15th February, 2007 the appellant is

staying at her parent’s house in U.P. That as such, the

parties are living apart, atleast for 11 years. There is no

issue out of the said wedlock and much water has flown

under the bridge during the period of 12 years.

10. The petition for dissolution of marriage was

filed by the husband on the ground of mental cruelty he

suffered at his wife’s hand.

11. The concept of cruelty in the matrimonial cases

is explained by the Hon’ble Supreme Court in the case of

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V. Bhagat V/s. D. Bhagat, reported in 1994 (1)

SCC page 337 in para-16 as follows :-

“16. Mental cruelty in Section 13(1)(i-a) can
broadly be defined as that conduct which inflicts
upon the other party such mental pain and
suffering as would make it not possible for that
party to live with the other. In other words,
mental cruelty must be of such a nature that the
parties cannot reasonably be expected to live
together. The situation must be such that the
wronged party cannot reasonably be asked to put
up with such conduct and continue to live with
the other party. It is not necessary to prove that
the mental cruelty is such as to cause injury to
the health of the petitioner. While arriving at such
conclusion, regard must be had to the social
status, educational level of the parties, the society
they move in, the possibility or otherwise of the
parties ever living together in case they are
already living apart and all other relevant facts
and circumstances which it is neither possible nor
desirable to set out exhaustively. What is cruelty
in one case may not amount to cruelty in another
case. It is a matter to be determined in each case
having regard to the facts and circumstances of
that case. If it is a case of accusations and
allegations, regard must also be had to the
context in which they were made.”

12. We have gone through the evidence which

unfolded following facts :-

(i)wife left the matrimonial house in June, 2006

and came back in September, 2006. She revisited

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the parents house on 15th September, 2006 and

returned only after a notice issued by the husband.

(ii)On 25th January, 2007 in absence of husband

and his family members, the appellant broke open

the lock of matrimonial house at Pune with the

prior intimation to the police.

(iii)On 13th April, 2007 the father of the appellant,

lodged a complaint against the respondent, his

parents and two brothers under Section 498A of

the Indian Penal Code, at Uttar Pradesh.

(iv)On 3rd November, 2007 the father of the

appellant came to Pune with warrants alongwith

the police in a private jeep.

(v)father of the appellant secured warrants against

the respondent, his father, his two brothers and

mother.

(vi) brother-in-laws of the appellant were students;

one studying at Sangamner and another at Pune

and residing at the respective hostels. The mother

could not be arrested for want of a lady constable.

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Admittedly, at the given point of time, the husband

was not in Pune and therefore he could not be

arrested.

(vii) That, the father-in-law and two brother-in-

laws of the appellant were taken in a jeep from

Pune to Agra by road and were detained in the

police custody for 2-3 days.

(viii)Their custody was taken from Pune house in

presence of the members of the Housing Society.

(ix) The father-in-law of the petitioner was an

Army Personnel.

(x) The respondent-husband was required to

obtain protective order from the High Court in the

proceedings filed against him under Section 498A.

(xi) In the first week of January, 2007 i.e. on 7th

January, 2007 the appellant came to Pune but

having found nobody in the matrimonial house and

under lock, created a scene in the building which

according to the respondent was done intentionally

to damage his image and the image of the family

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amongst the members of the Society.

13. The evidence also disclosed the fact, that in

September, 2006 undivided share of the respondent’s

family in the ancestral land situated at District-Agra,

Uttar Pradesh was purchased by the appellant for the

consideration of Rs.45,000/- by registered deed; however

there is no evidence to show that, such consideration was

actually paid by the appellant, wife. The appellant,

neither denied this fact nor clarified in the cross-

examination, object of buying undivided share soon after

marriage and when and how, she had paid agreed

consideration.

14. The evidence of the husband has disclosed a

fact that, the wife had threatened to commit suicide if she

was not allowed to enter the house and thereafter the

husband had filed a complaint on 13 th March, 2007. On

this point, neither there is cross-examination nor any

evidence led in rebuttal thereto by the appellant or denial

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thereof.

15. A circumstance has surfaced in the evidence of

the husband that, the father of the appellant informed

Yerwada Police Station from Agra that, her daughter was

beaten by the in-laws and in response thereto the Pune

police questioned the father of the respondent. According

to the respondent, husband it was a false complaint and

was done with an intention to bring disrepute to the

family and his dignity.

16. It is disclosed in the evidence of the respondent

that, on 19th February, 2007 his father had gone to Agra

as he had lost his mother. Even on that occasion, the

appellant’s father created a “tamasha” and therefore his

father had gone to Phirozabad at his in-laws house. Even

at that place, the father of the appellant reached with the

lawyer and informed his father that he had acquired

undivided share in the property and threatened that he

would make all efforts to leave him without any property

or means.

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17. The Learned Counsel appearing for the

respondent has culled out the aforesaid circumstances

from the evidence of the parties and thus submitted that

the appellant and her father left no stone unturned to

cause harassment and actually caused it in every possible

manner. He would submit that, his two brothers who

were students and admittedly staying at their respective

hostels, were paraded in a jeep from Pune to Agra and

were detained in the police custody for no fault on their

part and on false accusation of unlawful demand. The

Learned Counsel would submit that, his father who was a

Army Personnel was taken in the same manner from

Pune to Agra under police escort. He would therefore

submit, that the appellant and his family members

intentionally paraded his family members to bring

disgrace and harm their reputation which has left

permanent scar of anguish on their mind. The Learned

Counsel would therefore submit, that the appellant and

her father deliberately did all possible things to humiliate

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his parents and family members, recurringly and

repeatedly.

18. The Learned Counsel for respondent has

strenuously submitted that, the crime under Section

498A was registered after institution of the petition for

divorce and that too in May, 2007. He has taken us

through the complaint dated 14th September, 2006

(Exhibit-58) made by his wife to the police at Pune

making the allegation of demand of dowry and consequent

harassment.

19. We have gone through the said complaint dated

14th September, 2006, as well as, the FIR filed in May,

2007. Admittedly, the FIR has been lodged as a

counterblast to the petition for divorce filed by the

respondent, husband. The wife in her evidence has failed

to give any plausible explanation as to why she did not file

the complaint though allegations were made by her in

September, 2006 for the alleged demand of dowry. In the

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evidence, the appellant did not attribute any role or made

any allegations against her brother-in-laws. There is no

whisper in her evidence or the evidence of her witnesses

that, brother-in-laws had any time subjected her to

harassment. The question, therefore arises is, why the

brother-in-laws were implicated in the case and why they

were paraded in a jeep from Pune to Agra. The only

answer that we could find is that, it was done deliberately

to bring disrepute to the husband and his family members

and to disgrace her father-in-law who was an Army

Personnel.

20. We have also gone through the sale-deed

whereby she has purchased undivided share of

respondents family in ancestral land and the evidence

brought on record by the husband. It is not clarified by

the appellant in her evidence as to what prompted her to

purchase the undivided share in the land of her husband’s

family at Uttar Pradesh. It is the evidence of the husband

that, no consideration was paid but on this point there is

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neither cross-examination nor any evidence brought on

record in rebuttal thereto. Therefore, the fact remains

that, soon after the marriage in September, 2006 a part of

undivided share of husband’s family was transferred in

the name of the appellant. It is another suspicious

circumstance which goes against the appellant, apart

from other circumstances, to hold that, she caused cruelty

to husband.

21. The evidence of the appellant does not even

remotely suggest that, she has made any efforts to

reconcile the differences between herself and her

husband. There is nothing in her evidence to suggest that

since January, 2007, she has made any efforts to go back

to the matrimonial house and cohabit with the

respondent. Infact, the appellant chose to stay at her

parents house since February, 2007 and had lodged a

complaint and filed an FIR against the husband and her

in-laws in May, 2007. All these facts cumulatively lead us

to hold that, the appellant has not made any efforts, much

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less, genuine to reconcile the differences. In fact, the

evidence on record has proved a fact, that in the

revengeful manner, appellant and her family made all

possible efforts to harass the respondent and his family

members.

22. Under Section 13(1)(i-a) of the Hindu Marriage

Act, a marriage can be dissolved by a decree of divorce on

a petition presented either by the husband or by the wife

on the ground that, the other party has, after

solemnisation of marriage, treated the petitioner with

cruelty. The Apex Court in series of judgments has

succinctly stated the meaning and outlined the scope of

the term “cruelty”. Cruelty is evident where one spouse

who has treated the other and manifested such feelings

towards her and him as to cause in her or in his mind a

reasonable apprehension that it will be harmful or

injurious to live with the other spouse. A cruelty may be

physical or mental.

23. In the case of K. Srinivas Rao V/s. D.A. Deepa

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in Civil Appeal No. 1794 of 2013 , the Hon’ble

Supreme Court has indicated certain instances of human

behaviour, which may be relevant in dealing with the

cases of mental cruelty. We have gone through such

instances culled out in para-11 of the said judgment.

24. We have gone through the entire

evidence, oral as well as, documentary led by the parties

in the case in hand. We have hereinabove elaborated each

of the circumstances as have surfaced in the evidence of

the parties. Taking together all the said circumstances,

we are of the view that a sustained course of abusive and

humiliating treatment meted out by the appellant and her

family members to the respondent and his family

members has rendered his life miserable. Herein, the

conduct of the appellant and her father was unjustifiable.

We hold so, because soon after the marriage, within a

span of three to four months, appellant had addressed a

complaint to the police making allegations of illegal

demands or dowry, as could be seen from Exhibit-58

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dated 14th September, 2006. This complaint was not

taken further by the appellant. That even otherwise, we

find the complaint was palpably false because in

September, 2006 undivided share of respondent’s family

property in agricultural land at Uttar Pradesh was

transferred by registered deed in the name of the

appellant for the consideration of Rs.45,000/-. We could

not see any evidence of passing of such consideration by

the appellant to the family of the respondents. This

transaction is not in dispute as evident from the copy of

the registered deed placed on record by the parties. When

we pose a question to the Learned Counsel for the

appellant as to how there could be complaint of unlawful

demand by the wife in September, 2006 (Exhibit-58),

when in the same month, part of a land was transferred

by the family of the respondent to the wife. The Learned

Counsel for the appellant, however, could not satisfy us.

In the circumstances, we are of the considered view tht

the alleged complaint dated 14th September, 2006 was

obviously false on the face of it as both the events i.e. the

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alleged demand and transfer of interest in the land cannot

stand together, simultaneously. We are also unable to

comprehend as to why within a very short span of

marriage, a deed was executed in favour of the appellant.

25. It may also be stated that the respondent filed

a complaint in May, 2007 against the respondent and his

family members under Section 498A. This complaint was

filed at Agra in Uttar Pradesh. The same allegations were

made in the complaint dated 14th September, 2006 at

Pune. The appellant did not pursue the said complaint at

Pune but chose to file a complaint at Agra in April-May,

2007. The complaint under Section 498A was registered

much after the filing of the petition and after counseling

held in the Family Court. Though a chargesheet has been

filed in the said crime and though the case is pending but

taking into consideration the totality of the

circumstances, we have no manner of doubt that the

complaint was a counterblast to the petition filed by the

husband, to humiliate and harass the respondent and his

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family members.

26. The appellant herein has not disputed the fact

that the father and the brothers of her husband were

taken in private jeep under the escort of the police from

Pune to Agra after executing the warrants issued by the

Court for the offence under Section 498A. It is the

evidence of the respondent that, warrants were executed

in the presence of the members of the housing Society and

his father, who is a retired Army Personnel was taken

into custody by the police and paraded till Agra. In our

view, this was an unjustifiable conduct of the appellant

and her father which certainly has affected physical and

mental health of the respondent and his family members.

There was no reason to implicate the brother-in-laws, in

as much as, both were students and were admittedly

residing in their college campus. In evidence, it has also

surfaced that the respondent was required to approach

the Court in Uttar Pradesh for obtaining protective

orders. On the comprehensive appraisal of the evidence

on record, we are of the considered view, that the

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appellant and her father in a most calculative manner

humiliated the respondent and his family with an

intention to cause disrepute to his family. Yet another

circumstance which needs to be discussed is that, the

appellant, in the absence of the respondent or his family

members, broke open the lock of the matrimonial house

at Pune though, it was claimed by her that, it was with the

prior intimation to the police. We were unable to

understand the unusual step taken by the appellant, wife

of breaking upon the lock of her matrimonial house. It

has also come in the evidence that, before opening the

lock she had raised hue and cry in the Society.

Considering the totality of the circumstances, we have no

doubt in our mind that the respondent had suffered a

traumatic experience because of the unusual behaviour of

the appellant and her father and obviously resulted into a

loss of reputation and prestige in the Society.

27. It also appears from the evidence that the

respondent’s father had gone to Agra on 19th February,

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2007 as he had lost his mother. Even on that occasion, at

Phirozabad, the father of the appellant reached with the

lawyer and humiliated him by uttering that, since he had

acquired undivided share in the property, he would make

every efforts to leave him without property or means. In

the evidence, neither the appellant nor his witnesses

denied such assertion of the husband or his witnesses.

. There is yet another piece of evidence which

shows that, the father of the appellant made a phone call

to the Pune Police Station alleging beating by the father-

in-law to the appellant. It appears from the evidence, that

the police visited the house of the respondent enquiring

about the incident. However, the appellant has not placed

anything on record as to what had happened to the

subject complaint and whether that complaint was taken

to a logical end. In the circumstances, we hold that the

appellant and her father lodged complaints with police to

cause continuous harassment to the respondent and his

family members. We therefore hold that the harassment

at the hands of the appellant and her father was and is

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persistent even today since the complaint under Section

498A of the Indian Penal Code is pending at Agra.

28. On consideration of all the circumstances, as

elaborated hereinabove, we hold that sustained

unjustifiable conduct and behaviour of the wife has

affected physical and mental health of the respondent. We

further hold that, the harassment of the respondent and

her family members was persistent. Therefore, we are of

the considered view that the matrimonial bond of the

parties is beyond repair.

29. Admittedly, the parties are living separately

nearly for eleven years and there appears to be no efforts

by the appellant to restore the matrimonial ties. There is

nothing in the evidence even to indicate that the wife has

made any efforts to save her matrimonial life.

30. The Learned Counsel appearing for the

appellant, has also taken us through the impugned

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judgment and submitted that the allegations in the police

complaint about the unlawful demands and consequent

harassment caused by the husband and his relatives is

pending in the Court and until such allegations are

disproved, the allegations itself would not constitute the

ground to claim the divorce. In other words, it was sought

to be suggested that the trial Court ought not to have

taken into consideration the police complaint and the

First Information Report to hold that the complaints were

false and that itself amounts to cruelty.

31. We have hereinabove stated as to why the

complaint on the face of it appears to be a false on the

touchstone of preponderance of probabilities. If the

attending circumstances brought on record by the parties

in their evidence, if suggesting that on preponderance of

probabilities, the complaints lodged with the police are

false, mere pendency of the prosecution is not a ground

for not considering such circumstances in the

matrimonial dispute between the parties.

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32. We have also gone through the evidence of the

appellants. Though, the appellant in many words has not

pleaded condonation as a defence, but in view of the

provisions of Section 23(1)(d), it is the Court’s duty to

find whether the conduct of the Appellant enumerated to

cruelty. The evidence on record shows that, she lived

with the husband for a very short period and admittedly

since February, 2007 she is residing with her parents

house at Agra. That there is nothing on record to indicate

that the respondent, husband has condoned either of the

objectionable acts of the appellant and her father. Be that

as it may, the fact remains, the prosecution under Section

498A is still pending and further there is nothing on

record to indicate that the appellant has made any efforts

to reconcile the differences or to compromise the disputes

by filing any application in the Court where Section 498A

proceedings are pending. The fact cannot be ignored that

the parties are living apart for nearly eleven years and

there are no issues out of the said wedlock.

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33. In our view considering the facts and

circumstances of the case and the evidence on record, no

interference is called for with the judgment and decree

passed by the trial Court. Points are answered

accordingly. Resultantly, the Appeal is dismissed. The

decree be drawn accordingly.

(SANDEEP K. SHINDE, J) (R.M. SAVANT, J)

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