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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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