Bombay High Court Sadhana Satish Kolvankar-vs-Satish Sachidanand Kolvankar on 15 July, 2004
Equivalent citations:2005 (2) BomCR 340, 2005 (1) MhLj 935
Author: H Gokhale
Bench: H Gokhale, A Aguiar
JUDGMENT
H.L. Gokhale, J.
1. This Family Court Appeal is filed by wife seeking to challenge the judgment and order dated 11th January 1999 passed by a Judge and order dated 11th January 1999 passed by a Judge, Family Court, Mumbai, on a petition moved by the Respondent-husband being M.J. Petition No. A-147 of 1995. That Petition prayed for a decree of nullity on the ground of non-consummation of marriage owing to the impotence of the Appellant under Section 12(1)(a) of the Hindu Marriage Act, 1955 (for short, “the said Act”) and in the alternative for divorce on the ground of cruelty under Section 13(1)(ia) of the said Act. The Judge of the Family Court held that both these grounds were established and has granted a decree on both the prayers. Being aggrieved by that judgment and order, the present Appeal has been filed.
2. The Appeal having been admitted, there has been a stay of the impugned judgment and order. The Respondent has, therefore not re-married. Under the impugned judgment and order, the Appeallant was directed to be paid an amount of Rs. 500/- per month towards maintenance under Section 25 of the said Act. There has also been an order to pay her an amount of Rs. 500/- additionally in a proceeding taken out by her under Section 125 of the Code of Criminal Procedure. Both these orders have been complied with so far, tough with some interruption at times. After the Appeal was admitted, an earlier Division Bench hearing the Appeal suggested the Respondent on 26th June 2000 that he should consider paying a sum of Rs. 500/- more. The Respondent pointed out that he was working as a Crane Operator in Mazgaon Ltd. (a Government Undertaking) and had obligations towards his old mother and the widow of his deceased brother and further that at that time his actual take-home salary was hardly Rs. 4,000/-. However, in deference to the suggestion of the Court, the Respondent agreed to pay Rs. 500/- more. Thus, as of now, Rs. 1500/- is being paid to the Appellant-wife per month and there are no arrears in this behalf. Before we further deal with the matter, we would like to record at the outset that we took good efforts to see if the controversy could be resolved amicably either by the parties coming together or by separating on agree terms. However, the efforts did not succeed.
3. The facts leading to the filling of the Petition for nullity/divorce are as follows:-
(i) The Appellant and the Respondent were married as per the Hindu Vedic Rites in Mumbai on 16th November 1993. It is the Respondent`s case that this marriage has remained non-consummated due to the impotence of the Appellant and besides that she has treated him with cruelty.
(ii) As Far as the grievance of non-consummation is concerned, the Respondent pleaded in his Petition that after the marriage he took a room in Park Hotel, Shivaji Park, Mumbai on 19th November 1993. According to him, on that very night, the Appellant told him tat she was not interested in any physical relations. When he tried to ask the Appellant about her indifference, She abused him and strictly warned him not to approach her in any manner. Further, as mentioned in the Petition, she stated that she had better proposals and she did not want to marry him but had been compelled to do so.
(iii) It is further pleaded in the petition that on 28th November 1993, both of them went to Bangalore for Honeymoon. During those days, the Respondent tried to pacify the Appellant but she was adamant and refused to perform her conjugal duties. After coming back to Mumbai, the Respondent narrated the situation to his brother who called both of them to stay in his house at Thane and offered his bed-room to them. The reluctance of the Appellant continued over there also. The wife of the Respondent`s brother took the Appellant to a doctor for an appropriate medical advice but that was not honoured. Thereafter a meeting was arranged where relatives of both the parties remained present and the Appellant gave in writing that she had made a mistake and that she will not repeat it.
(iv) As far as the grievance of cruelty is concerned, the Respondent contended that their marriage was proposed marriage and even before the marriage and after the engagement, the Appellant behaved with him rudely. Her behaviour even after the marriage was rude and insolent. When both of them came down to Mumbai after the Honeymoon, his mother was seriously ill. The Appellant ignored the Respondent`s mother in her illness and did not attend her. Even after the above-referred writing was given, the Appellant did not improve her behaviour. She stayed with him for about two months but all throughout continued to torment and harass. She threatened to commit suicde and alleged that the Respondent was having relations with other women including his own sister. It is at this stage that the Respondent asked her brother to advise her. He took her away on 13th February 1994.
(v) Inspite of all these happenings, the Respondent approached a Social Organization viz. Maratha Mandir Free Legal Aid Centre, but all such efforts of intervention failed. The Respondent submitted that all these aforesaid acts including refusal to have physical relations, amounted to cruelty. He, therefore, prayed for a decree of nullity and in the alternative, a divorce on the ground of cruelty.
(vi) In Para-13 of the Petition, the Respondent contended that the Appellant was working as a contractor in cloth looms business at bhiwandi and her income was Rs. 3,000/- per month.
4. The Appellant filed a Written Statement wherein. She contended that there was no cause of action to file the Petition and that, in fact, she was herself the sufferer. She further contended that the Respondent suspected her character and also used to assault her. After these preliminary submission, she denied all the averments and allegations in the petition. She dealt with each of the paragraphs of the Petition mainly by denying the averments therein. In Para-12 of the Petition, the earlier referred joint family meeting had been mentioned and also the apology given by the Appellant. A copy of this apology was annexed as Exhibit ‘B’ to the Petition. In Para-6(1) of the Written Statement, the Appellant dealt with this paragraph 12 and denied that such a joint family meeting was held. She, however, did not make any reference to the writing claimed to have been given by her. With respect to the attempt of the Respondent to bring about the conciliation through the Maratha Mandir Free Legal Aid Centre, the Appellant accepted that this Institution had been approached but she contended that he never tried to settle the problem. The Appellant-wife denied that she worked as a contractor in cloth looms business or that she had any income as claimed by the Respondent
5. The Respondent examined himself in support of his case and narrated his case as stated in the petition. With respect to the efforts made by his sister-in-law and visit to a doctor by her along with the Appellant, he stated that the doctor had advised the Appellant, he stated that the doctor had advised the Appellant to use and ointment but she did not use it. The Respondent himself used glycerine to facilitate the intercourse but the Appellant pushed him away. He further stated that on the next date after this attempt in Thane, the Appellant broke her bangles, removed her Mangalsutra and broke it and stated that she did not want to live with the Respondent. He thereafter narrated as to how the meeting of the relatives was arranged wherein she gave a writing as claimed earlier. The writing, when translated from Marathi into English, reads as follows:-
“I have committed a mistake. I may be pardoned by all. I assure that I will not repeat any such mistake. In case of any such mistake, whatever decision is taken, will be acceptable to me. I will not blame anybody for that.
Sd/-
Sadhna Satish Kolvankar”
Thereafter there are signatures of the persons present and which are as follows:-
“1) D.R. Jadhav, Uncle of the Appellant.
2) Sanjay Kovankar, Elder brother of the Respondent.
3) Deepak Kolge, brother-in-law of the Respondent.
4) S.V. Kokate, brother of the Appellant.”
The Respondent tendered the original writing in evidence. The Appellant accepted that this writing was in her won handwriting. That was so recorded by the learned Judge whereafter he exhibited the document as Exhibit-19.
6. When the cross-examination of the Respondent started, it is seen that the first question asked to him was that there was incomplete intercourse between the parties, which he denied. In Para-26 of the cross-examination. It was put to him that the Appellant had filed a criminal case against him under Section 498A of the Indian Penal Code. It was further put to him that she had filed a case under Section 125 of the Code of Criminal Procedure for maintenance and that he was directed to pay maintenance of Rs. 500/- per month. The Respondent accepted both these statements and the documents concerning those proceedings were exhibited. The Respondent was shown the Report of medical examination of the Appellant dated 14th January 1998 by one Dr. Asha Dalal, Obst. & Gynecologist. That report was obtained during the pendency of the above-referred matrimonial proceeding. The Respondent accepted that such report was obtained. Subsequently again it was put to him that after 20th November 1993, their sexual life was normal which he denied. It was again put to him that there was incomplete intercourse at Park Hotel, which he again denied. It was also put to him that he did not use glycerine after the advice was taken from the doctor and the Respondent denied that suggestion also.
7. The Respondent thereafter examined his brother Sanjay, who narrated as to how he called the Respondent to come and stay at his residence at Thane and as to how his wife took the Appellant to the Gynecologist. He also narrated the incident of breaking of mangalsutra and the meeting of the relatives where the Appellant gave her writing. He identified the signatures of the Maternal Uncle of the Appellant, his own signature and that of his brother-in-laws Deepak Kolge. The Respondent then examined Swapna, wife of Sanjay, who also narrated as to how she took the Appellant to a doctor and what was his advice. She mentioned the name of doctor as Dr. Gosavi. She also mentioned the incident of breaking mangalsutra and bangles and the writing given by the Appellant. The 4th witness examined by the Respondent was his brother-in-law Deepak Prabhakar Kolge. He stated that there was no husband-wife relationship between the Appellant and the Respondent. This witness Kolge further stated that he was present when the meeting for conciliation took place. He stated that the Appellant assured of good behaviour in future and gave that writing. He identified his own signature on that writing and that of various witnesses to that writing. In the cross-examination this witness Kolge was asked whether the earlier referred Complaint under Section 498A included the name of this wife as Accused and he accepted the suggestion. At the end of the cross-examination of this last witness, it was put to him that the above-referred writing given by the Appellant was given before their marriage. It was also put to him that it was not in respect of the physical relations. He denied both these suggestions.
8. The Appellant examined herself in defence. As far as their stay at Park Hotel at Shivaji Park, Mumbai and the grievance of Non-consummation is concerned, she stated in Para-11 of her examination-in-chief as follows:-
“One day after the marriage, we stayed at Park Hotel. I felt pain during conjugal intercourse. At that time petitioner said that I was having illicit relations with somebody and therefore, I did not permit him to have sexual intercourse. But afterwards our marriage was consummated.”
In the cross-examination it was put to her that the marriage was not consummated which she denied. She, however, stated in Para-6 in her examination-in-chief that the Respondent was not speaking with her and he was also not sleeping near her. As far as the efforts made by the Respondent for conciliation through Maratha Mandir Free Legal Aid Centre, she stated in her examination-in chief that over there he stated that there was no physical relation between two of them. In her examination-in-chief itself, she accepted that she had given the above-referred writing, Exhibit-19, but she stated that it was written after engagement but before marriage. In her cross-examination, the Appellant accepted that she signed it as “Sadhana Satish Kovankar” which was her marital name and not as “Sadhana Vishnu Kokate”, Which was her maiden name. It is material to note that this plea that the writing was executed before the marriage, has come for the first time in her evidence and no such plea was taken by her earlier in the Written Statement. The Appellant accepted that she was working with Vipul Enterprises/before marriage as a Checker and used to earn Rs 3,000/- per month. She, however, denied that she was working at the time of giving her evidence and that she was with the same Company and was drawing Rs. 4,000/- per month. The Appellant accepted that she was examined by lady doctor in Nair Hospital and which report was at Exhibit-15.
9. The Appellant examined her brother Sudhir Vishnu Kokate and her Maternal Uncle Dattatray Ramchandra Jadhav. Both of them have signed the above-referred writing, Exhibit-19, as witnesses. Both of them accepted that they had signed the writing but stated that it was written after the engagement and before marriage. The Uncle Jadhav stated in his deposition that he had told the Appellant to write her name as “Sadhana Satish Kolvankar”. It is material to note that both of them no where state as to what was the occasion to give such a writing before marriage. The Appellant’s brother has stated for the first time in his statement that after the Appellant came back to his house, he visited the Respondent’s house for conciliation and that time the Respondent’s mother demanded a room from him and stated that there was a proposal from other girls.
10. The Appellant examined the above-referred Dr. Asha Dalal as defence witness No. 2. This doctor stated that she examined the Appellant on 14th January, 1998. As far as her physical condition is concerned, she gave an opinion that the patient had sexual intercourse but she was not habituated with sexual intercourse. In the cross-examination, this doctor stated that the patient had told her that she had visited Dr. Khemani, Gynecologist twice because she had difficulty in having physical relations. That doctor had examined her twice. In her cross-examination, Dr. Dalal accepted that for rupture of hymen partial penetration was sufficient.
11. The learned Judge of the Family Court thereafter head the arguments. The learned Judge then answered the two issues of non-consummation owing to impotence and cruel treatment in favour of the Respondent For arriving at the finding of non-consummation, the learned Judge noted the statements made by the Respondents with respect to his attempts at Park Hotel, Mumbai, Bangalore and then at Thane. He noted as to how his sister-in-law took the Appellant to the doctor, though he has made a mistake in mentioning the name of Dr. Khemani as the one to whom she took the Appellant, because as per her deposition, the doctor to whom she consulted for the Appellant was one Dr. Gosavi. That apart, the learned Judge noted that the Appellant herself had stated that at the time of their first contact in Park Hotel, she felt pain during conjugal intercourse. He further noted that the Appellant had told Dr. Dalal also that she had difficulty in having physical relations and, therefore, had visited Dr. Khemani. Dr. Dalal had also stated that the patient had visited Gynecologist twice for “dysparunia” and in her evidence she stated that “dysparunia” means difficulty or pain during Sexual intercourse. The learned Judge noted that certain advice was given to her when she went to doctor along with her sister-in-law but she did not follow it. On all this material the learned Judge came to the conclusion that it corroborated the Respondent’s case of non-consummation of marriage. He held that it is so happened because the Appellant was impotent. The learned Judge relied upon the writing, Exhibit-19, and commented that no girl would give such a writing before her marriage and did not accept the explanation given by the Appellant. He also did not accept that it was a mistake on her part to sign it in her maiden name. Such writing could be given only after the marriage and that was given principally because of her failure to have physical relationship.
12. The learned Judge thereafter held that denial of physical relationship amounted to cruelty. He, however, declined to look into the Complaint under Section 498A relied upon by the Respondent as another piece of cruelty since he had not amended the matrimonial Petition to mention this Complaint. However, as stated above,inasmuch as denial of physical relationship amounted to cruelty, on that ground, he held that the second plea was also established. The learned Judge, therefore, declared the marriage as null and void and also dissolved it under Section 13(1)(ia) of the said Act.
13. Ms. Godse, learned Counsel appearing for the Appellant-wife, firstly, submitted that the learned Judge had committed as error in granting a decree on both the counts. She submitted that once he held that the marriage was null and void, there was no occasion to dissolve it by granting a decree of divorce. On the other hand, Mr. Keni, learned Counsel appearing for the Respondent-husband, submitted that the Respondent had raised two pleas in his Petition and had specifically made alternative prayers. He had sought a decree of nullity and in the alternative a divorce. We have noted the submissions. It is clear that the Petition had alternative prayers. In view thereof, it would not have been proper for the learned Judge to decide only one issue and not to decide the other. Whenever any such alternative pleas are taken, it is normally expected from the Trial Court that it decides all the issues together so that an occasion for a remand is avoided. The only error on the part of the learned Judge is that having held that the case for nullity was made out, he was expected to pass only a decree of nullity under Section 12(1)(a) of the said Act. He could have given a finding on the second issue viz. as to whether the Respondent proved that the Appellant treated him with cruelty and he was right in rendering the finding on that issue also. The leaned Judge, however, ought to have held that since the decree for nullity was being granted, there was no need to grant a decree of divorce under Section 13(1)(ia) of the said Act. However, in our view, that cannot be a reason for this Court to interfere with the judgment and order beyond the observations that we have made above.
14. The second submission made by Ms. Godse, learned Counsel appearing for the Appellant was that the finding of the learned Judge on the ground of non-consummation owing to impotence of the Appellant was erroneous. She submitted that Dr. Dalal had clearly given an opinion that the Appellant had sexual intercourse and the marriage had been consummated by the Appellant was not habituated to the sexual intercourse. She further submitted that this finding of the doctor was not disturbed. It is true that the Appellant had told Dr. Dalal that earlier she had visited Dr. Khemani twice and that she had difficulty in having physical relations. This, however, did not mean that she did not have any intercourse or that her marriage was not consummated because she was impotent. The report of the medical examination showed that the hymen was not intact. Dr. Dalal also noted the personal history given by the Appellant which stated that according to the Appellant, she had stayed with her husband only for 15 days and that intercourse took place 3 to 4 times but thereafter her husband was not interested. Ms. Godse, therefore, submitted that it was totally wrong on the part of the learned Judge to come to the conclusion that the Appellant was impotent or was impotent qua the Respondent and that marriage had not been consummated. Ms. Godse drew our attention to the second medical report which the earlier Division Bench of this Court had sought and that report also went in favour of the Appellant.
15. Mr. Keni, on the other hand, emphasized the fact that the Appellant had admitted that she had pain during conjugal intercourse in Park Hotel. She had stated it to Dr. Khemani and which again she repeated to Dr. Dalal. He submitted that the revulsion expressed by the Appellant for physical relationship was clearly writ large on the evidence. This was seen when they lived together in Park Hotel at Mumbai, thereafter at Bangalore and subsequently at Thane. This had, in fact, led to the meeting of all the relatives where the aforesaid writing, Exhibit-19, was given and which could not be a writing given prior to the marriage. He, therefore, submitted that if not a case of physical impotence, it was a case of impotency qua the Respondent which had, in fact, led to non-consummation. Mr. Keni further submitted that consummation meat having smooth physical relationship which undoubtedly was absent between the parties. In the alternative, he submitted that if not a case of non-consummation, it clearly amounted to a case of cruelty since the Appellant had declined to have physical relationship with the Respondent and denial of proper physical relationship also amounted to cruelty which has been held in different judgments and which was destructive of marriage as held by Lord Denning in the case of Kaslefsky v. Kaslefsky reported in 1950 (2) All England Law Reports 398 quoted by the learned Judge of the Family Court in his judgment. He tendered a copy of the judgment in the Complaint under Section 498A filed by the Appellant. Mr. Keni submitted that at the stage of the Trial Court, the learned Judge had declined to look into this Complaint since the Petition was not amended. However, that was a Complaint filed by the Appellant and the leaned Judge ought to have looked into it. Now, the Complaint has been decided and dismissed as totally false one and this Court should look into it and which also constituted a piece of cruelty.
16. With respect to the admission emanating from Exhibit-19, Ms. Godse tied to rely upon a judgment of the Apex Court in the case of Prakash Chand Sharma v. Vimlesh (Smt) reported in 1995 Supp (4) S.C. 642 where the Apex Court declined to give credence to two letters of regret written by the wife. It is, however, material to note that as that judgment itself states that one letter was written after the institution of divorce and the other was undated. Ms. Godse then submitted that the Complaint under Section 498A could not be looked into nor the judgment rendered therein.
17. Ms. Godse then relied upon a judgment of a Division Bench of this Court in the case of B v. A reported in 1992 Mh.L.J. 748 = AIR 1993 bombay page 707. In Para-5 of that judgment, the Division Bench has noted that Section 20 of the Act requires the contents of every Petition to be verified. In that matter various grievances were made by the husband but they were too vague, not pleaded in the Petition and the Court declined to look into them. Ms. Godse submitted that on a similar footing in the present case the filing of the Complaint under Section 498A could not be looked into and, therefore, filing of that Complaint cannot be construed as ground for cruelty. She submitted that the Appellant was not alone responsible for not having the smooth relationship. The Respondent had demanded a room as stated in the evidence of the Appellant’s brother but since that was not being provided, the problem had arisen and, therefore, she submitted that the case for cruelty was sought to be falsely made out either for not having smooth relationship or for any such cruel act on the part of the Appellant.
18. Ms. Godse relied upon a judgment of a learned Single Judge of this Court in the case of Sadanand Sahadeo Rawool v. Sulochana Sadanand Rawool reported in 1989 (1) Bom.C.R. 495 to submit that in that case the husband had alleged that the wife was averse to sexual intercourse and then he had alleged infidelity. The Court had held that it was the husband’s attempt to get rid of the wife. According to Ms. Godse, the present case was a similar one. In our view, it is not possible for us to accept this submission. the facts in the present case are quite contrary and substantial material in justification has been placed on record.
19. The point to be considered is whether the Family Court has erred in granting decree of nullity and that of divorce. We have considered the rival submissions in this behalf. We quite see the force in the submissions of Ms. Godse on the issue of impotence. As far as the grievance of impotence is concerned, Dr. Dalal has clearly opined that although there was difficulty on the part of the Appellant in having physical relationship and that there was pain, she has had sexual intercourse, but she was not habituated to it. Mr. Keni submitted that this opinion is given on the basis of examination done on 14th January 1998, whereas the problem between the parties arose between the date of their marriage which was solemnized on 16th November 1993 and 13th February 1994 when she went away to her brother’s residence. Thus, the medical examination has been done some four years thereafter. The medical examination, therefore, will have to be read as one giving the physical condition of the Appellant in January 1998. However, there is no evidence of unchastity against the Appellant and, therefore, as far as non-consummation of the marriage is concerned, it is difficult to accept the plea of the Respondent.
20. At the same time, the fact remains that even as per the statement given by the Appellant to Dr. Dalal and as seen from her Report, Exhibit-56, the intercourse took place only 3 to 4 times in a span of about 3 months. The Respondent has given his reasons for the same. He has pointed out as to how the Appellant had expressed her revulsion when they first had a physical contact in Park Hotel, Mumbai. That situation seems to have continued even during the Honeymoon in Bangalore and subsequently at Thane. Thereafter a scene was created by the Appellant of breaking her Bangles and mangalsutra. The depositions of the Respondent, his brother and sister-in-law in that behalf cannot be rejected. Thereafter the fact that a meeting took place and that the Appellant having executed the writing therein that there was a mistake on her part and that she will not repeat it, also get proved. According to the Appellant, that writing was given after the engagement and before marriage. This defence is, however, not taken any where in the Written Statement. It is also not put either to the Respondent or to his brother or to his brother’s wife when they were cross-examined. It is only when the last witness of the Respondent i.e. Deepak Kolge was examined that at the end of his cross-examination this suggestion was put to him that this writing was made before marriage which he has denied. Thereafter in her deposition, the Appellant has tried to contend that it was so given before marriage and her Maternal Uncle had submitted that she wrote her name as “Sadhana Satish Kolvankar” as told by him. There is, however, no explanation as to what was the occasion for her to give such writing before the marriage and why should she sign it at that time in her marital name and not in her maiden name which was “Sadhana Vishnu Kokate”. It is not possible to accept this plea which is clearly an after-thought. It is, therefore, clear that obviously the parties were not having smooth relationship and that the Appellant was responsible for it and, therefore, she gave the aforesaid writing.
21. It is also not possible for us to accept the submission of Ms. Godse that the fact of filing of the Complaint by the Appellant under Section 498A of Indian Penal Code and the decision thereon should not be looked into. It is undoubtedly true that Section 20 of the Hindu Marriage Act requires a party filing a Petition to state distinctly the nature of the case and the facts on which the claim to relief is founded. In the present case, the Complaint was filed during the pendency of the Divorce Petition. The learned Judge commented that the Respondent ought to have amended his Petition and has therefore declined to look into this aspect. But now the position is that the Complaint has been proceeded and has been dismissed and the copy thereof has been tendered by the Respondent in Appeal. Can this Court say that this fact should be ignored? Ms. Godse did not dispute that such a Complainant was filed, neither did she offer any comments on the decision thereof. In fact, the Respondent had been specifically asked in his cross-examination as to whether any such Complaint had been filed against him which he accepted. Now, this Complaint is dismissed and no Appeal is filed therefrom. As seen from the order passed by the learned Magistrate dismissing the Complaint, the same was filed against the Respondent, his aged mother and his sister-in-law. It undoubtedly amounted to a harassment as they were required to go to the Court. Again as seen from the order, the case was filed in the year 1996 and was ultimately dismissed after six long years i.e. on 9th October 2002 for want of any substance therein. In our view, all material which is logically probative for a prudent mind cannot be excluded from consideration while arriving at a decision. There cannot be any allergy to look into such material, provided it has a reasonable nexus and credibility. It is true that one has to be careful in looking and evaluating such material. The essence of judicial approach is objectivity, exclusion of extraneous matters from consideration and observance of rules of natural justice. In our view, on these tests, the Respondent cannot be denied the opportunity to rely upon this order.
22. It has been held that powers of the Appellate Court are wide and the Court can pass such orders in favour of a Respondent as are necessary in Appeal even if the Respondent had not filed any objection with respect to a determination against him the only constraint being that parties before the Lower Court should be there before the Appellate Court and the question raised must properly arise out of the judgment of the Lower Court. This has been so held by the Apex Court while interpreting Order 41 Rule 33 of Code of Civil Procedure in the case of Mahant Dhangir and Anr. v. Shri Madan Mohan and Ors. . In view of this position, the Respondent cannot be denied the opportunity of submitting that the learned Judge was wrong in not looking into the fact that such a Complaint had been filed leading to his harassment. In our view, it is a relevant factor in considering the plea of cruelty. The aloofness of the Appellant and not having the physical relations coupled with a rude behaviour and filing of Complaint under Section 498A of Indian Penal Code will have to be all considered together. On the other hand, the Respondent tried his level best for a reconciliation after the Appellant walked out his house in February 1994. He went to a social institution for intervention. That having failed, also he waited for good time and the present proceeding was filed nearly one year thereafter i.e. on 15th January 1995. As far as the Appellant is concerned, she did not file any proceeding for restitution of conjugal rights. On the other hand, she chose to file a Complaint under Section 498A which was found to be false and came to be dismissed. The effect of all these factors will have to be considered together.
23. The judgment in the case of Parveen Mehta v. Inderjit Mehta contains a somewhat similar story. In
that matter, the parties got married on 6.12.1985. The wife was a thin and frail lady. The couple lived together for about four months i.e. till 28.4.1986 and then parted company permanently. According to the husband, marriage was never consummated, whereas according to the wife Parveen she had conceived after the marriage, but had suffered a miscarriage, which was not proved on evidence. The Apex Court upheld the judgment of the High Court granting dissolution of marriage on the ground of mental cruelty. In Para-22 of that judgment, the Apex Court observed as follows:-
“22. Judged in the light of the principles discussed above, what we find is that right from the beginning the matrimonial relationship between the parties was not normal; the spouses stayed together at the matrimonial home for a short period of about six months; the respondent had been trying to persuade the appellant and her parents to agree to go for proper medical treatment to improve her health so that the parties may lead a normal sexual life; all such attempts proved futile. The appellant even refused to subject herself to medical test as advised by the doctor. After 21-6-1987 she stayed away from the matrimonial home and the respondent was deprived of her company. In such circumstances, the respondent who was enjoying normal health was likely to feel a sense of anguish and frustration in being deprived of normal cohabitation that every married person expects to enjoy and also social embarrassment due to the behaviour of the appellant. Further, the conduct of the appellant in approaching the police complaining against her husband and his parents and in not accepting the advise of the superior judicial officer Mr. S.K. Jain and taking a false plea in the case that she had conceived but unfortunately there was miscarriage, are found to cause a sense of mental depression in the respondent. The cumulative effect of all these on the mind of the respondent, in our considered view, amounts to mental cruelty caused due to the stubborn attitude and inexplicably unreasonable conduct of the appellant.”
24. In this connection, it is necessary to rely upon a recent judgment of the Apex Court in the case of G.V.N. Kameshwara Rao v. G. Jabilli reported in 2002 AIR SC Weekly 162. In that matter, the Apex Court held that to constitute cruelty it need not be of such nature as causing reasonable apprehension that it would be harmful to the party to live with other party. The Apex Court held that having regard to the sanctity and importance of marriage in a community life, the Court should consider whether the conduct of the counter petitioner is such that it has become intolerate for the petitioner to suffer any longer and to live together is impossible, and then only the Court can find that there is a cruelty of the counter petitioner. In this view of the matter, one has to note that in the present case, the respondent wife had filed a criminal complaint against the husband, his aged mother and sister-in-law which factor was pressed in service as an aspect of cruelty.
25. It is the impact of these cumulative events and circumstances which is needed to be taken into account to consider total impact on the mind of person alleging cruelty. This Court has taken this view in the case of Nilima Kishore Mhaske v. Kishore A. Mhaske reported in 2002 (3) Maharashtra Law Journal. In the present case, the parties lived together hardly for few months. Their physical relationship was not at all smooth. There were constant quarrels. An attempt to patch up was made. The Appellant admitted her guilty, gave in writing but still the situation did not improve. The Appellant went back to her parents. Thereafter an attempt to reconcile through a social Organisation was made. However, that also failed. Having waited for one year thereafter the Respondent was constrained to file the proceeding in the Family Court. The Appellant on the other hand filed a Complaint of cruelty. In our view, the Respondent cannot be blamed, if he formed an opinion that he was treated with cruelty. IN the circumstances, although we do not accept the finding on the issue of nullity on the plea of impotence of the Appellant, we uphold the other finding given by the learned Judge of the Family Court, namely, that the Appellant has treated the Respondent with cruelty. The case for divorce under Section 13(1)(ia) of the said Act was, therefore, made out. Accordingly, the Respondent will be entitled to a divorce on that ground.
26. In view of what is stated above, Mr. Keni, learned Counsel appearing for the Respondent-husband, submitted that there was no occasion to grant any maintenance to the Appellant-wife on a permanent basis under Section 25 of the Act. Ms. Godse, learned Counsel appearing for the Appellant-wife, on the other hand, submitted that the Appellant had left her job because of the marriage. She pointed out that the Respondent had also accepted in Para-10 of his examination-in-chief that he had told her to leave the job at the time of marriage, though he has stated further that she was quarrelling with him on that count. Ms. Godse, therefore, submitted that the Respondent must pay an appropriate maintenance. Mr. Keni, on the other hand, submitted that this was not a case for granting any maintenance. According to the Respondent, the Appellant worked as a Checker with one Vipul Enterprises. She accepted it in her cross-examination and that she received Rs. 3,000/- per moth. She, however, maintained that after her marriage she had discontinued that occupation. According to the Respondent, she continued to work there and received Rs. 4,000/- per month. This was put to her in the cross-examination though she has denied the same. The Appellant was a Crane Operator in Mazgaon Dock Limited and his salary slip was produced for our perusal. It showed that his take-home salary was hardly Rs. 4,000/- in the month of January 2000. Ms. Godse, however, pointed out that this was because of the heavy loans and deductions. His total salary is otherwise over Rs. 10,000/- per month. We, however, note that the Respondent has been paying the monthly maintenance as directed from time to time. In deference to the suggestion from the Court, the Respondent initially filed an Affidavit and gave an undertaking and his Counsel made a statement that even if the matter is not settled amicably, he is ready and agreeable to pay an amount of Rs. 1,500/- per month regularly on the divorce being confirmed. Thereafter in deference to the suggestion from the Court, he paid an amount of Rs. 50,000/- to the Appellant and filed another Affidavit on 7th June 2004 that he will continue to pay Rs. 1200/- per month until he is able to arrange a further sum of Rs. 1,50,000/- as total maintenance.
27. Mr. Keni, learned Counsel appearing for the Respondent, has relied upon paragraph 15 of a Full Bench judgment of this Court in the case of Bhausaheb @ Sandu s/o Raghuji Magar v. Leelabai w/o Bhausaheb Magar reported in 2004 (4) Mh.L.J. 1019 to submit that if the husband was not at fault, he should not be made to pay alimony. As against that, Ms. Godse has drawn our attention to a Division Bench judgment of this Court in the case of Gulab Jagdusa Kakwane v. Smt. Kamal Gulab Kakawane (Per P.B. Sawant, J.) (as he then was in
this Court) where the Division Bench has taken the view that the Court has ample discretion under Section 25 of the Act to grant or refuse maintenance, even in cases where adultery was alleged.
28. However, in view of the fair approach and the Affidavit of the Respondent, it is not necessary for us to go into this aspect. In view of the statement made by Mr. Keni and the undertaking filed by the Respondent, we bind the Respondent by that undertaking. The Respondent has stated that he will try to raise an amount of Rs. 1.5 Lakhs (over and above Rs. 50,000/- already paid) and make it available to the Appellant as and when he can. The moment he makes that amount available, the Respondent would be relieved of this obligation of paying Rs. 1,200/- per month. The Respondent has his widowed sister-in-law and old mother to look after. He is a Crane Operator in the Mazgaon Dock with a limited salary. The Respondent may get re-married as well after the decision on this Appeal in which case his liabilities will increase. We quite see the agony of the Respondent inasmuch as this marriage took place way back in November 1993 and it failed in about three months. The decree of the Family Court is in his favour and was passed in January 1999 but he was required to wait for five years more thereafter for this Appeal to be decided. Inspite of a finding in his favour on the issue of cruelty, he is maintaining his offer. In our view, the Respondent’s offer is quite fair and we direct him to abide by it.
29. In the circumstances, we pass the following order:-
(a) The judgment and order dated 11th January 1999 passed by the Judge, Family Court, Mumbai, is upheld to the extent it holds that the Appellant had treated the Respondent with cruelty and the marriage between the parties; therefore, stands dissolved by a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955, though not on the ground of nullity for non-consumption under Section 12(1)(a) of the Act.
(b) The Respondent shall continue to pay by way of maintenance a sum of Rs. 1,200/- per month to the Appellant until he arranges to pay a further lump sum amount of Rs. 1.5 Lakhs. Thereafter his responsibility will come to an end.
30. The Appeal stands disposed of accordingly, though without any order as to costs.
31. Authenticated copy of this order be provided to the parties.
32. Ms. Godse appearing for the Appellant applies for stay of this judgment and order that we have passed in this Appeal. Mr. Keni appearing for the Respondent, on instructions, states that it is becoming harsh as far as the Respondent is concerned inasmuch as although he was married way back in the year 1993, the marriage lasted only for a few months and although the impugned judgment and order of the Family Court was passed more than five years ago in his favour, he has been required to wait further. Even so, on further instructions, Mr. Keni states that the Respondent will not get remarried for a period of six weeks hereafter.
