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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FAMILY COURT APPEAL NO.76/2016
APPELLANT: Sau. Archna w/o Mahesh Dhore,
Ori. respondent Aged about 39 years, Occ. household work,
On R.A. Presently c/o Shri T.A. Tathod (Patil),
Ex. Tathod Mangal Karyalaya/Tathod Niwas,
Amrut Nagar, Behind Govt. Milk Dairy,
Akola, Tq. and Distt. Akola.
…VERSUS…
RESPONDENT: Mahesh s/o Bhanudas Dhore,
Ori. petitioner Aged about 40 years, Occ. Service,
On R.A. r/o Saptashringi Mandir, old Cidco Houses, Nashik.
————————————————————————————————–
Shri C.A. Joshi, Counsel for the appellant
Shri N.S. Warulkar, Counsel for the respondent
————————————————————————————————–
CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 20.07.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
Heard. ADMIT. The family court appeal is head finally with
the consent of the learned Counsel for the parties.
By this family court appeal, the appellant -wife challenges
the judgment of the Family Court, Akola dated 26/9/2016, allowing a
petition filed by the respondent – husband for a decree of divorce under
Section 13 (1) (ia) of the Hindu Marriage Act.
Few facts giving rise to the family court appeal are stated
thus : –
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The respondent – husband and the appellant -wife were
married according to Hindu rites and customs on 18/11/2003. A son,
named Aditya is born from the wedlock. It is the case of the husband in
the petition filed by him for a decree of divorce on the ground of cruelty
that the wife was whimsical, hot-tempered and was always quarrelling
with the husband and his family members. It is pleaded that after the
marriage, the parties resided in the matrimonial house at Nagpur and
then the husband was transferred to Nashik and the parents of the
husband were also residing with him at Nashik. It is pleaded that when
the wife joined the company of the husband and his parents at Nashik,
she did not behave properly with his parents and on a belief that the wife
would mend her ways in future the husband continued to stay in her
company. It is pleaded that the wife always pestered the husband that the
husband should reside separately and away from his parents. It is pleaded
that while residing in the matrimonial home the wife used to get up late
in the morning, she used to refuse to perform the household duties and
she used to abuse and insult the husband and his parents. It is pleaded
that the wife behaved very badly with the parents of the husband. It is
pleaded that when the parents of the husband tried to talk with their
grandson Aditya or fondle him, the wife used to snatch the child from the
parents of the husband. It is pleaded that the wife always used to threaten
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the husband that she would leave the matrimonial home and ensure that
the marriage between the parties was dissolved. It is pleaded that on
6/2/2005 the wife quarrelled with the husband after alleging that the
husband had an affair with another lady. It is pleaded that the mother of
the wife also called the husband and asked him whether the wife was
ill-treated in the house. It is pleaded that the wife did not permit anybody
in the family to meet Aditya or talk to him. It is pleaded that during the
night hours also the wife used to quarrel with the husband. It is pleaded
that the wife never tried to compromise when there were differences
between the parties on some issues and even when the guests visited the
matrimonial home the wife did not offer them tea or coffee. It is pleaded
that on 6/4/2005 when the mother of the husband had churned the
spices and had asked the wife and Aditya to go to the room on the first
floor, the wife and Aditya said that they suffered a breathing problem due
to the churning of the spices and quarrelled with the mother of the
husband for a long time. It is pleaded that the wife assaulted Aditya
without any reason. It is stated that when Sarika, the sister of the husband
asked the wife not to abuse the mother of the husband in filthy language
and also permit Aditya to talk to her for some time, the wife abused
Sarika, called her a maid and told her that she should not come to the
matrimonial home and touch Aditya. It is pleaded that in June, 2005 the
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wife switched off her mobile and made a hue and cry that her mobile was
stolen by her father-in-law. It is pleaded that when in September, 2009
the mother of the husband was seriously ill the wife did not take care of
the husband’s mother. It is pleaded that on 11/9/2005, the wife fought
with the husband and his father on the ground that the parties should
reside separately from the joint family. It is pleaded that since the wife
had started beating the husband, the husband left the matrimonial home
at 10:30 p.m. on 11/9/2005 and started residing in a lodge by taking his
belongings to the lodge on 12/9/2005. It is pleaded that when the
husband was transferred to Goa, the brother of the wife named Anand
had been to Goa and in an intoxicated state he had assaulted the husband
on his ears and head. It is pleaded that the wife did not mend her ways
even after the parties separated. It is pleaded that the wife used to fight
with the neighbours, milkman etc. It is pleaded that in 2007 when the
husband was residing at Solapur, his mother Sau. Rama had fallen from
the stairs and one of her legs was fractured. It is stated that though a rod
was inserted by operating on the leg of Sau. Rama and she was admitted
in the hospital for about ten days and was asked to take bed-rest in the
house for a month thereafter, the wife did not bother to meet the mother
of the husband Sau. Rama and also did not talk to her on the telephone. It
is pleaded that when the father of the husband was operated for fistula in
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the year 2005 and was admitted in the hospital for about seven days, the
wife did not go to the hospital to meet him. It is pleaded that when the
sister of the husband was married at Mahesh Bhawan, Nashik on
12/4/2010 the wife did not attend the marriage though the husband
persistently asked the wife to join the company. It is pleaded that when
the son of the husband was studying in Choughule English Medium
School in Kolhapur without any rhyme or reason the wife had fought with
the teachers and thereafter Aditya was removed from the said school and
was admitted to another school. It is pleaded that in the said school also
the wife had fought with the teachers on 4/2/2011 and hence, Aditya was
removed from that school and was required to be admitted in the third
school. It is pleaded that in the third school also the wife had fought with
the teachers and Aditya was required to be admitted in the fourth school.
It is pleaded that due to the behavior of the wife it is impossible for the
husband to live with the wife under one roof. It is pleaded that in August
2013 the wife had fought with the milkman and when the husband asked
her that she should not fight on such petty matters, the wife fought with
the husband and stayed in her parental home for twenty days. It is
pleaded that the wife came to the matrimonial home only after the
persuation by the husband. It is pleaded that in the circumstances of the
case, a decree of divorce should be granted in favour of the husband.
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The wife filed the written statement and denied the claim of
the husband. The wife denied all the adverse allegations levelled by the
husband against her. It is pleaded that under the pretext of his service the
husband used to remain out of the house at Nashik for fifteen days at a
stretch. It is pleaded that the husband and his family members had
ill-treated her. It is pleaded that the father and the mother of the husband
as also his sister Sarika had harassed her. It is pleaded that Sarika, the
sister of the husband had forcibly once inserted a toy in the mouth of
Aditya till there was bleeding in his mouth. It is pleaded that since the
husband’s parents and his sisters were ill-treating the wife and also
beating her, she was forced to leave the company of the husband on some
occasions and join the company of her parents. It is pleaded that some
times the parents of the husband did not permit the wife to fondle her son
Aditya. It is pleaded that the wife was once kept out of the house for the
whole night. It is pleaded that on several occasions the wife was driven
out of the house. It is pleaded that the parents of the husband used to
abuse and ill-treat the wife in the presence of outsiders. It is pleaded that
Sarika and Jayshree, the sisters of the husband also used to give insulting
treatment to the wife. It is pleaded that since Jayshree, the sister of the
husband had asked the wife not to attend the marriage, the wife had not
attended the marriage. It is pleaded that when the mother of the husband
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was hospitalized the wife was not informed about the hospitalization. It is
pleaded that the husband had not attended the marriage ceremony of her
brother. It is pleaded that once the husband and his family members had
abused her and had told her that there was some deformity in her body. It
is pleaded that the wife had not ill-treated the husband but the husband
had ill-treated her. It is pleaded that though the wife desired to meet
Aditya after separation, she was not permitted to do so. The wife sought
for the dismissal of the petition filed by the husband on the ground of
cruelty.
On the aforesaid pleadings of the parties, the Family Court
framed the issues and on an appreciation of the evidence on record, the
Family Court granted a decree of divorce in favour of the husband on the
ground of cruelty. The judgment of the Family Court is challenged by the
wife in this family court appeal.
Shri Joshi, the learned Counsel for the wife submitted that
the Family Court was not justified in granting a decree of divorce on the
ground of cruelty. It is submitted that several incidents on which the
husband had relied, for proving that the wife had treated the husband
with cruelty are not the recent incidents and hence, they cannot be
considered for holding that the wife had treated the husband with cruelty.
It is submitted that the acts of cruelty, even if any, that had taken place
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after the solemnization of the marriage, could be said to have been
condoned as the husband continued to reside with the wife for several
years thereafter under one roof. The learned Counsel relied on the
judgment of the Hon’ble Supreme Court, reported in AIR 2017 SC 1316
in this regard. It is submitted that the alleged acts on the part of the wife
would depict only the wear and tear in the matrimony and they cannot be
said to be the acts that would constitute cruelty under the provisions of
the Hindu Marriage Act. The learned Counsel relied on the judgment,
reported in 2014 (3) Mh.L.J. 781 to substantiate his submission that
mere trivial irritations, quarrels, normal wear and tear of married life
would not be adequate for granting a decree of divorce on the ground of
cruelty. It is submitted that the acts alleged by the husband against the
wife, even if proved by the husband, cannot constitute cruelty and the
husband is therefore not entitled to a decree of divorce.
Shri Warulkar, the learned Counsel for the husband has
supported the judgment of the Family Court. It is stated that the Family
Court has rightly recorded a finding, on an appreciation of the evidence
tendered by the husband that the husband had become tired of the wife
and it was impossible for the husband to stay with the wife under one
roof. It is stated that the husband had proved that the wife was obstinate,
quarrelsome and was behaving arrogantly with the husband, his parents
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and his sisters and was insulting them. It is stated that the Family Court
has held that the husband has proved that the wife was compelling the
husband to leave his old parents and reside in a nuclear family. It is
submitted that the Family Court has arrived at a finding that the wife had
not looked after the old parents of the husband and had not gone to see
them in the hospital. It is stated that the Family Court has held and rightly
so that the counter allegations made by the wife against the husband and
his family members were not proved by the wife. It is submitted that since
the Family Court has rightly granted a decree of divorce in favour of the
husband, the family court appeal is liable to be dismissed.
On hearing the learned Counsel for the parties and on a
perusal of the record and proceedings, it appears that the following points
arise for determination in this family court appeal :-
(1) Whether the husband has proved that
the wife has treated him with cruelty ?
(2) Whether the husband is entitled to a
decree of divorce on the ground of cruelty ?
(3) What order ?
To prove his case, the husband has examined himself. The
husband has reiterated the facts pleaded by him in the petition, in his
evidence on affidavit. The husband was cross-examined on behalf of the
wife. The husband denied in his cross-examination that his parents used
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to fight with the wife on petty matters. The husband denied the
suggestion that he had locked his flat on 1/4/2014 when the wife had
come to Kolhapur. The husband denied that on 1/4/2014 when the wife
called him on the telephone he had abused her and had threatened to kill
her. The husband denied the suggestion that he had left Kolhapur after
locking the house and therefore the wife was forced to sit outside the flat
for the whole night. The husband denied that he and his father had filed a
false report against the wife in the police station and had levelled false
allegations against her. The husband denied that the wife had on several
occasions called the husband so that she could reside with him in the
matrimonial home. The husband denied that he had filed false case
against the wife for a decree of divorce.
Apart from the husband, the husband has examined his
uncle Shri Ganesh Dhore. Ganesh stated in his evidence that the wife used
to behave very badly with the husband and she did not like the relatives
of the husband to come to the matrimonial home. Ganesh stated in his
evidence that the wife did not permit her in-laws to come to the
matrimonial home. He stated in his evidence that the husband had told
him on telephone on 30/11/2013 that the wife should mend her ways
and start residing with the husband under one roof. Ganesh stated that
though he asked the wife to do so, the wife had told Ganesh that she does
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not wish to live with the husband and wishes to secure employment and
money. Ganesh stated that when he had been to the house of the aunt of
the wife on 29/12/2013 the wife drove Ganesh and the persons
accompanying him out of the house. Ganesh was cross-examined on
behalf of the wife. He denied every suggestion given by the wife in the
cross-examination.
The husband also examined Shri Yogesh Bhatkar. Yogesh
reiterated the allegations that were made by the husband against the
conduct and behavior of the wife. Unfortunately, Yogesh Bhatkar was not
cross-examined on behalf of the wife and his evidence remained
unchallenged.
The wife filed her evidence on affidavit. The wife reiterated
the allegations made by her against the husband and his family members
in the evidence on affidavit. In her evidence on affidavit, the wife stated
that she was ill-treated by the husband and his family members and her
life was made miserable by the parents and the sisters of the husband.
The wife was cross-examined on behalf of the husband. The wife admitted
in her cross-examination that her husband had treated her well at Nagpur
and her relations with him during that period were cordial and therefore,
she had no complaints against him. The wife stated that she was not
aware whether her father-in-law had complained to her father regarding
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her conduct and that she was not behaving properly with the family
members. The wife denied the suggestion that due to the conduct of the
wife, her husband was thrown out of the matrimonial home, along with
her. The wife however admitted that in 2005, the father of the husband
had thrown them out of his house. The wife admitted that even in Goa
she did not have any occasion to lodge a report against the husband and
his in-laws. The wife denied that the husband had telephoned to her
parents from Goa and had complained about her behaviour, as a result of
which her brother had come to Goa. The wife however admitted that
there were disputes between the husband and her brother because of her
behaviour while they were residing at Goa. The wife stated that she was
not aware that the husband had lodged a report with Panaji Police against
the wife and her brother. The wife admitted that she had called a meeting
in Pune in December, 2013 for resolving the disputes. The wife denied
that after a notice was received by her, the parties have filed cases against
each other. The wife admitted that her mother-in-law had suffered an
accident in 2007 due to which she was admitted in the hospital at Nashik.
The wife stated that she was however not aware whether her father-in-
law was also admitted in the hospital at Nashik. She denied the
suggestion that she had not gone to the hospital to meet her in-laws. The
wife denied that she had assaulted the teachers in Ford International
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School. The wife however admitted that five teachers from the said
schools had written to the husband and had asked him to give her
psychiatric treatment. The wife stated that the majority of the teachers in
the schools were supporting her. The wife denied that her son was driven
out of the schools because of her bad behaviour. The wife admitted that
the husband had never objected to the wife’s continuing her education or
taking up the job. The wife further admitted that the husband had taken
care of her needs when they resided together. The wife stated that she
was not aware whether the husband and his father had filed reports
against her. The wife stated that she had not consented to a decree of
divorce by consent and that her signature on the divorce petition filed
before the Court at Kolhapur was secured forcibly. The wife however
admitted that she had signed on the petition for divorce by mutual
consent in the Court itself. The wife admitted that she had not attended
the marriage of her sister-in-law. The wife however denied the suggestion
that she had not attended any of the functions after the marriage of her
sister-in-law.
On an appreciation of the evidence tendered by the parties
on record, the Family Court held that the husband had proved on the
basis of his evidence and the evidence of his uncle and Yogesh Bhatkar,
the friend of the husband whose evidence has gone unchallenged that the
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wife had treated the husband with cruelty. The Family Court held that on
an appreciation of the evidence tendered by the husband and his
witnesses, it could be gathered that the wife always wanted to reside
separately and away from the joint family and her in-laws. It is found
from the evidence tendered by the husband, his relative and his friend
that the wife was behaving arrogantly with the husband and quarrelling
with her in-laws without any rhyme or reason. It is observed by the
Family Court on the basis of the evidence on record that when the parties
were at Goa, the brother of the wife had assaulted the husband under the
influence of liquor, as a result of which the husband had suffered injuries
and had to lodge a report in the police station against the brother of the
wife. It was apparent from the evidence of the husband that the
quarrel between the husband and the brother of the wife took place
because of the wife. It is found that the husband had been successful in
proving that the wife had not attended the marriage of the real sister of
the husband by name Jayshree that was performed on 12/4/2010. The
Family Court held that the case of the wife in her written statement that
she did not attend the marriage as Jayshree had told her not to attend the
same at the time of her engagement was not correct as the wife had stated
in her evidence on affidavit that she had not attended the marriage of
Jayshree because the husband had not taken her to the said marriage. The
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Family Court found that the wife was changing her stand from time to
time and it was therefore not possible to believe the reason put forth by
the wife, for not attending the marriage of the sister of the husband. The
Family Court has held and rightly so that it was not possible to believe the
wife as the wife had taken two different stands for not attending the
marriage of Jayshree, one being that Jayshree had not permitted the wife
to attend the marriage and the second being that the husband had not
taken her to the marriage. The Family Court then found that the husband
was successful in proving that the wife was not only quarrelling with the
husband and his family members but was also quarrelling with the
teachers in the schools. The wife had admitted in her cross-examination
that five teachers in the school where Aditya was studying had given in
writing to the husband that the wife should be treated by a psychiatrist.
The said admission of the wife would clearly show that her conduct in the
schools was such that five teachers in the school had to write to the
husband that the wife should be treated by a psychiatrist, as she was
behaving very badly with the school teachers. It is found from
Exhibit – 43, which is the letter written by the teachers to the husband
that the wife had abused the teacher, Monali, called her bitch, pulled her
hair and kicked her in the school premises. From Exhibit – 43 it could be
seen that as per the teachers that had complained to the husband against
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the wife, the wife had behaved in an unruly manner only because the wife
was not happy with the marks awarded to her son for certain answers. It
was further written in the letter at Exhibit – 43 by the teachers that the
wife had alleged that the teachers used to do time-pass by calling the
fathers of the children and not their mothers. Though the wife had denied
that she was fighting with the teachers, the admission of the wife in her
cross-examination that five teachers from the school had complained to
the husband in writing about her behaviour and asked that she should be
treated by a psychiatrist, clearly shows that the case of the husband that
the wife had the habit of fighting with the teachers and abusing them is
proved. It is necessary to note that though Yogesh Bhatkar had clearly
stated about the quarrelsome nature of the wife and about the
ill-treatment meted out by her to her husband and his family members,
Yogesh has not been cross-examined on behalf of the wife. Since the
evidence of Yogesh remained unchallenged the Family Court has rightly
relied on the unchallenged evidence of Yogesh in his examination-in-chief.
From the evidence of Yogesh and the husband, the Family Court came to
a conclusion that the husband had been successful in proving that the
wife did not wish to reside with her in-laws and always pestered the
husband that he should stay away from the joint family. The evidence of
Ganesh Dhore has also supported the case of the husband. The evidence
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on record clearly establishes that though a meeting had taken place in
December, 2013 to resolve the disputes, the wife refused to return to the
matrimonial home. From the admissions of the wife in her cross-
examination, it appears that the allegations made by the wife against the
husband and his family members are untrue as she has admitted in her
cross-examination that the husband had taken care of her needs, when
they resided together and there was no problem when the parties
cohabited together in the matrimonial home. It was also noted by the
Family Court that the wife had signed on the petition for a decree of
divorce by consent but had later withdrawn herself from the said
proceedings by falsely stating that her signature on the petition for
divorce by mutual consent was secured forcibly. Since the wife had
admitted in her cross-examination that she had signed the petition for a
decree of divorce by mutual consent in the Court itself, the case of the
wife that she was forcibly made to sign on the petition for a divorce by
mutual consent is false and baseless. Since the husband has proved the
allegations levelled by him against the wife, the Family Court has rightly
held that the husband was entitled to a decree of divorce on the ground of
cruelty. We do not find any merit in the submission made on behalf of the
wife that the allegations levelled by the husband against the wife, even if
they are said to be proved would only depict the normal wear and tear, in
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the matrimony. The allegations levelled by the husband against the wife
in the petition that stand proved, cannot be said to be the acts that would
only reflect the normal wear and tear in the matrimony. The Family Court
has rightly held that if a person faces harassment of any kind, may be a
physical or mental, there comes a point in such person’s life when he
decides that enough is enough. It cannot be said in the circumstances of
the case that the husband cannot be permitted to seek a divorce on the
basis of the incidents that had taken place in the earlier part of the
matrimony. In our view, all the incidents that had taken place from the
date of the marriage of the parties and that show that the wife had
treated the husband with cruelty, could have been looked into while
considering whether the husband was entitled to a decree of divorce on
the ground of cruelty. It cannot be said that merely because the husband
continued to stay with the wife for quite some time despite her
harassment and ill-treatment, the acts of cruelty on the part of the wife
for the earlier period of the matrimony have been condoned. As rightly
held by the Family Court, there can be a point in a person’s life who faces
harassment, when the person may decide that it is not possible for that
person to stay with the other person, who inflicts cruelty, under one roof.
The judgment, reported in AIR 2017 SC 1316 cannot be made applicable
to the case in hand. The judgment, reported in 2014 (3) Mh.L.J. 781
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would also not apply to the facts of this case as in this case, the
allegations against the wife do not relate to mere trivial irritations,
quarrels and normal wear and tear of married life. The allegations proved
by the husband against the wife in this case are grave and serious and the
proved allegations, show that the husband was treated by the wife with
cruelty.
Since the judgment of the Family Court is just and proper,
we dismiss the Family Court Appeal with no order as to costs.
JUDGE JUDGE
Wadkar
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