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Shri Deepayan S/O Manindranath … vs Smt. Pratima W/O Deepayan Biswas on 6 April, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR

FAMILY COURT APPEAL NO.362/2014

APPELLANT: Shri Deepayan s/o Manindranath Biswas,
Aged about 41 years, Occu. Business,
r/o Amanpur, Kuliyana Basti, Gupta building
(693) Amanpur, Madan Mahal, Jabalpur (M.P.).

…VERSUS…

RESPONDENT : Smt. Pratima w/o Deepayan Biswas,
aged about 35 years, Occu : – household,
r/o Plot no.207, Alamnagar, Khushboo Lawn,
Near company pump, Bharat Town,
Kamptee, Dist. Nagpur.
————————————————————————————————–
Shri C.F. Bhagwani, Advocate for appellant
Shri M.N. Upadhyay, Advocate for respondent
————————————————————————————————–

CORAM : SMT. VASANTI A NAIK, AND
MRS. SWAPNA JOSHI, JJ.

DATE : 06.04.2017

ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)

By this Family Court Appeal, the appellant-husband

challenges the judgment of the Family Court, Nagpur dated 11.10.2014

allowing the petition filed by the respondent-wife for a decree of divorce

while rejecting her claim for return of Stridhan articles and permanent

alimony.

2. Few facts giving rise to the Family Court Appeal are stated

thus :-

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The respondent – wife had filed the petition against the

appellant-husband for a decree of divorce on the ground of cruelty. It was

pleaded by the wife in the said petition that the marriage between the

parties was solemnized on 4.12.2007 at Nagpur and the parties started

residing together in the house of the husband at Jabalpur after the

solemnization of the marriage. It is pleaded that the husband behaved

properly with the wife for hardly few days after the marriage, but

thereafter, the behaviour of the husband changed and he started

harassing the wife for money so that he could purchase an autorikshaw. It

is pleaded that when the wife refused to get the money for the husband

from her parents, the husband used to mercilessly beat the wife and

treated her with cruelty. It is pleaded that since it was not safe to stay in

the matrimonial home, the wife started residing separately in her father’s

house with her minor daughter w.e.f. 28.7.2010. It is pleaded that the

husband was very arrogant and had once beaten the brother of the wife,

named, Santosh but the wife did not report the matter to the police with

the hope that the matter could be settled between the parties. It is

pleaded that the husband was in the habit of consuming country liquor in

the company of his friends and used to return home late in the night. It is

pleaded that when the wife asked the husband as to why he returned late,

the husband used to beat the wife mercilessly. It is pleaded that though

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the wife was beaten up by the husband on several occasions in the

presence of his family members, the other family members did not give

support to her. It is pleaded that since the wife was totally dependent

upon her parents, it was necessary for the husband to pay maintenance to

the wife and also return her Stridhan articles.

3. The husband filed the written statement and denied the

claim of the wife. The husband denied all the adverse allegations that

were levelled against him. In his specific pleadings, the husband pleaded

that he tried his level best to ensure that the wife returns to the

matrimonial home along with his daughter, but the wife refused to come

back and stay with him. It is pleaded that the wife did not wish to leave

the husband only because he was not ready to financially support her

brothers and also because she wanted her father to include her name as

his beneficiary, as a divorced daughter. The husband sought for the

dismissal of the petition filed by the wife.

4. On the aforesaid pleadings of the parties, the Family Court

framed the issues. The wife entered into the witness box and reiterated

the facts stated by her in the petition. The wife was cross-examined on

behalf of the husband. The wife denied that she had filed a false

complaint against the husband and that the husband was not ill-treating

her. The wife stated in her cross-examination that her parents were

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maintaining her and her daughter. The wife denied that she had a love

affair with another person and that she had filed the divorce petition with

an intention to marry the man with whom she had a love affair.

5. The husband entered into the witness box and tendered the

evidence in support of his case. He stated in his evidence that he was

ready to live with the wife and his daughter but they were not ready to

stay with him. The husband stated in his evidence that the wife had left

the matrimonial home along with her brother without any rhyme or

reason. The husband stated that there was no reasonable excuse for the

wife to stay away from the husband and her behaviour was controlled by

her family members. The husband stated that though he had tried on

several occasions to bring back the wife to the matrimonial home, she had

refused to join his company. The husband was cross-examined on behalf

of the wife. He stated in his cross-examination that the wife and her

family members were involved in practicing black magic. He stated that

the neighbours used to poison the mind of the wife against the husband

and his family members. He stated in his cross-examination that he had

gone on a number of occasions to the house of the wife to bring her back.

6. The evidence of the parties is extremely short. On the basis

of the evidence, the Family Court held that the wife was not entitled to

claim the Stridhan articles as there was no concrete evidence in support of

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the wife’s claim. The Family Court held that the wife was entitled to

maintenance of Rs.1,500/- per month for her daughter. The judgment of

the Family Court as far as it dissolves the marriage between the parties is

challenged by the husband in this Family Court Appeal.

7. Shri Bhagwani, the learned Counsel for the husband

submitted that since the Family Court had come to a conclusion that the

husband had not treated the wife with cruelty, the Family Court could not

have allowed the appeal on the basis of the suggestions given to the wife

in her cross-examination in respect of her love affair and that she had

desired to seek a divorce as she wanted to marry the man with whom she

had a love affair. It is submitted that the husband had not pleaded in his

written statement that the wife had an affair or that she wanted to marry

the other man with whom she had an affair and hence, she was seeking

divorce and merely because such suggestions were given to the wife in the

cross-examination, it cannot be said that the husband had treated the wife

with cruelty. It is submitted that the Family Court wrongly came to a

conclusion that there was no possibility that the parties would live

together happily when there was a doubt in the mind of the husband that

the wife had an affair with another person. It is submitted that the

findings recorded by the Family Court are not just and reasonable and the

judgment of the Family Court is liable to be set aside.

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8. Shri Upadhyay, the learned Counsel for the wife supported

the judgment of the Family Court. It is submitted that it is well settled

that levelling of false allegations against the character of a spouse and not

proving the same would tantamount to cruelty. It is stated that it is well

settled that though a spouse may not be able to prove that the other

spouse has treated her/him with cruelty but the unsubstantiated

allegations in respect of the character of the spouse approaching the Court

for a decree of divorce may result in a finding that the spouse levelling

baseless allegations had inflicted cruelty on the other. It is submitted that

there was no reason for the husband to cast aspersions on the wife that

she had a love affair with a third person without naming him. It is stated

that the Family Court has rightly held that as the husband doubted the

character of the wife, the parties could not have lived happily under one

roof.

9. On hearing the learned Counsel for the parties, it appears

that the following points arise for determination in the Family Court

Appeal :-

(i) Whether the wife proved that the husband had
treated her with cruelty ?
(ii) Whether the wife was entitled to a decree of
divorce ?
(iii) What order ?

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10. The pleadings of the parties are extremely short and so is

the evidence tendered by the parties. The wife has only pleaded that the

husband demanded money from her parents to purchase an autorikshaw

and since she did not secure the same, the husband used to beat her and

harass her physically and mentally. The husband has denied the said

allegations. The husband has pleaded that the husband desired that the

wife should join his company and had gone to her parental home on

number of occasions to ensure that she returns to the matrimonial home,

but she did not return. The husband has not levelled any allegations

against the wife in respect of her character or any other serious

allegations except that the mind of the wife was poisoned by her family

members and neighbours and that she did not want to reside in the

matrimonial home as the husband was not ready to financially support

her brothers and that she wanted her name to be included as a beneficiary

of her father, as a divorcee. The Family Court has rightly held that the

wife had failed to prove the allegations. The wife had not tendered any

cogent evidence to prove the allegations that were levelled by her against

the husband. The wife has not given any specific details about the

demand of the money by the husband from her parents or the dates on

which he gave her beating for not bringing the amount from her parents.

The Family Court held and rightly so that the evidence of the wife was not

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convincing so as to hold that the husband used to ill-treat her both

physically and mentally. The Family Court, however, found that the

husband had posed some questions to the wife in the cross-examination

that had cast aspersions on the character of the wife. The husband had

asked the wife in the cross-examination that she had a love affair with a

person. Though the wife had denied the said suggestion, a further query

was made to the wife that she was desirous of seeking a divorce from the

husband, with a view to get married with the man with whom she had a

love affair. The Family Court on a consideration of the suggestions given

to the wife in the cross-examination held that the husband could not have

levelled the allegations in respect of the character of the wife without

substantiating or proving the same. Though the husband had not pleaded

about the immoral character of the wife in his written statement, the

husband had unnecessarily posed queries to the wife in the

cross-examination that would cast aspersions on her character. If the

husband wanted the wife to return to the matrimonial home, the husband

should not have said, without proving the same that the wife had a love

affair with another person and that she wanted to secure a decree of

divorce by dissolving the marriage with the husband merely with a view

to marry the man with whom she had a love affair. The Family Court

rightly held that the subsequent conduct of the parties can always be

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looked into while considering whether one of the spouse had treated the

other spouse with cruelty. The view expressed by the Family Court is a

possible view. It is well settled as stated on behalf of the respondent that

casting aspersions on the character of the spouse and not substantiating

the same would amount to cruelty. We do not find that the Family Court

has committed any error in holding that the wife was entitled to a decree

of divorce, not because she had proved that the husband had treated her

with cruelty on the basis of allegations that she had levelled against him

but she had proved that the husband had treated her with cruelty by

casting aspersions on her character. The view expressed by the Family

Court is a possible view and is based on the material evidence on record.

There is no scope for reversing the judgment of the Family Court.

11. In the result, the Family Court Appeal fails and is dismissed

with no order as to costs.

JUDGE JUDGE

Wadkar

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