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Sudhir Kamlakar Kharbade vs Sau. Sangita W/O Sudhir Kharbade on 20 April, 2018

FCA 42/17 1 Judgment

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL No. 42/2017
Sudhir Kamlakar Kharbade,
aged about 44 years, occupation – Teacher,
r/o Suraj Colony, Tower Line,
Behind V.M.V. College, Amravati,
Tq. Dist. Amravati APPELLANT
…..VERSUS…..

Sau. Sangita w/o Sudhir Kharbade,
aged about 40 years, occupation – Business,
r/o c/o Shrikrishna Ramraoji Umak,
Bhatkuli, Tq. Bhatkuli Dist. – Amravati. RESPONDENT

Mrs. B.P. Maldhure, counsel for the appellant.
Shri A.Z. Jibhkate, counsel for the respondent.

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

DATE : 20 TH APRIL, 2018.

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

The family court appeal is ADMITTED and heard finally with

the consent of the learned counsel for the parties.

2. By this family court appeal, the appellant-husband has

challenged the judgment of the Family Court, Amravati dated 23.05.2017

dismissing the petition filed by the appellant under Section 13(1)(ia) and

(ib) of the Hindu Marriage Act on the ground of cruelty and desertion.

3. Few facts giving rise to the family court appeal are stated
thus:-

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FCA 42/17 2 Judgment

The appellant-husband (hereinafter referred to as ‘the

husband’ for the sake of convenience) and the respondent-wife

(hereinafter referred to as ‘the wife’) were married at Amravati as per

Hindu rites and custom on 09.05.1999. After the solemnization of the

marriage, the wife started residing at Karla, District Amravati in the joint

family. In the petition filed by the husband for a decree of divorce on the

ground of cruelty and desertion, it is pleaded that the wife was never

interested in residing in the joint family and she always demanded for a

separate residence at Chandur Railway. It is pleaded in the petition that

after the solemnization of the marriage, the wife was avoiding the

husband and was not ready to have sexual relations with him. It is

further pleaded in the petition that the husband hoped that on the birth

of the child, the wife would mend her ways but despite the birth of a

daughter, the attitude and the adamant behaviour of the wife persisted.

It is pleaded that during her stay in the matrimonial house, the wife had

attempted to commit suicide and on one occasion, she had attacked her

husband with a knife. It is pleaded that due to the demand by the wife

for a separate residence, the wife behaved in a very unruly manner. It is

pleaded that the wife did not have respect for her father-in-law and

mother-in-law and she behaved very rudely and arrogantly with them. It

is pleaded that when the paternal grand mother of the wife expired in

February 2009, the wife had been to her parental house for quite some

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FCA 42/17 3 Judgment

time and the wife did not return to the matrimonial home though the

husband went to her parental home to bring her back in the last week of

February-2009. It is pleaded that the wife deserted the company of the

husband without any just and reasonable excuse. It is pleaded that the

husband had filed a petition for divorce on 26.08.2009 but the same was

withdrawn with liberty to file a fresh petition as the parties have not

separated for a period of two years before the filing of said petition. It is

stated that the wife had lodged a false report against the husband for the

offence punishable under Section 498-A of the Indian Penal Code. It is

stated that great agony was caused to the appellant due to the false

complaint filed by the wife in the police station. It is submitted that the

wife wanted to further harass the husband and hence she had also filed

proceedings against him under the provisions of the Protection of Women

from Domestic Violence Act. It is pleaded that the acts on the part of the

wife caused great mental agony to the husband and hence it was

necessary to dissolve the marriage solemnized between the husband and

the wife by a decree of divorce on the ground of desertion and cruelty.

4. The wife filed the written statement and denied the claim of

the husband. The wife denied each and every allegation levelled by the

husband against her and tried to show that she was a dutiful wife. In her

specific pleadings the wife pleaded that the husband always ill-treated her

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FCA 42/17 4 Judgment

and she tried to co-habit with him only with a hope that he would change

his behaviour. It is pleaded by the wife that when she was residing in the

matrimonial home, the husband had demanded an amount of Rupees One

lakh from the parents of the wife. It is pleaded that the parents of the

wife had paid the amount of Rs. One lakh to the husband. It is pleaded

that on 25.11.2009, the husband had mercilessly beaten the wife and had

tried to set her on fire. It is pleaded that due to the said act on the part of

the husband, wife had no course open but to leave the matrimonial home

and reside with her parents. It is pleaded that on 25.11.2009 the

husband tried to obtain the signature of the wife on a blank paper and

when she refused to sign, the husband had beaten her mercilessly with

kicks and blows. The wife sought for the dismissal of the petition filed by

the husband.

5. In support of his case, the appellant – husband had

examined himself and the wife had also examined herself in defence.

The parties did not examine any other witness in respect of their

respective cases. On an appreciation of the evidence on record, the

Family Court dismissed the petition filed by the husband. The judgment

of the Family Court is challenged by the husband in this Family Court

Appeal.

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FCA 42/17 5 Judgment

6. Mrs. Maldhure, learned counsel appearing for the appellant –

husband submitted that the Family Court has not appreciated the

pleadings and evidence of the parties in the right perspective while

dismissing the petition filed by the husband. It is stated that the wife has

not only treated the husband with cruelty but she had also filed a false

report under Section 498-A of the Indian Penal Code, as a result of which

the husband had to suffer a great mental agony and his reputation was

also spoiled. It is stated that the husband is acquitted in the proceedings

in the criminal case under Section 498-A of the I.P.C. It is submitted that

the wife has levelled reckless allegations against the husband in her

written statement and has failed to prove the same by tendering evidence.

It is stated that the wife has pleaded in the specific pleadings that the

husband had beaten her mercilessly on 25.11.2009 and had tried to set

her on fire and therefore, she had to leave the matrimonial home but

there is no evidence on said aspect. It is stated that the pleadings that are

not supported by evidence are liable to be ignored. It is stated that the

wife has also not proved that the husband had asked her to sign on blank

paper and when she has refused to sign the papers she was mercilessly

beaten by kicks and fists. It is submitted that the Family Court has

erroneously held that the husband has failed to prove his case about the

wife’s threats to commit suicide and also about the attempt to assault the

husband with knife as he had not lodged a report in respect of the same

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FCA 42/17 6 Judgment

in the police station. It is stated that normally a spouse would not file a

report against the other spouse in the police station with a hope that the

other spouse would mend his/ her ways and parties may be able to live

peacefully in future. It is submitted that in several parts of the judgment,

the Family Court has observed that though in the petition filed by the

husband against the wife, her irrational behaviour pertaining to her

threats to commit suicide and her attempt to assault is pleaded, no police

complaint is filed by the husband. It is submitted that despite the service

of notice on the wife to return to the matrimonial home, she had refused

to join the company of the husband. It is submitted that the Family Court

has erroneously recorded a finding that the wife was compelled to leave

the matrimonial home because of the ill-treatment of the husband. It is

submitted that the husband had not only served a legal notice on the wife

seeking her return but had also moved an application to the Mahila

Sampudeshan Kendra, Amravati, with a hope that the wife would reside

with him but without any success. It is stated that in the facts and

circumstances of the case, when the wife has levelled serious allegations

against the husband and has failed to prove, the husband would be

entitled to a decree of divorce on the ground of cruelty.

7. Shri Jibhkate, the learned counsel for the respondent – wife

has supported the judgment of the Family Court. It is submitted that

while acquitting the husband of the offence punishable under Section

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FCA 42/17 7 Judgment

498-A of the Indian Penal Code, benefit of doubt was extended to him. It

is submitted that the orders favourable to the wife were passed in the

proceedings under the provisions of the Protection of Women from

Domestic Violence Act. It is submitted that there is no proof of the fact

pleaded by the husband that the wife was not ready to consummate the

marriage and that she had threatened to commit suicide and hurt the

husband with a knife. It is stated that the case of the husband that the

wife always desired that they should reside separately from the joint

family is not proved by him and the same is also falsified by the

construction of the house by the husband at Amravati. The learned

counsel for the respondent has relied on the judgment of the Hon’ble

Supreme Court in the case of Ravi Kumar vs. Julmidevi, reported at

(2010) 4 SCC 476, to substantiate his submission. It is submitted that it

would be necessary for a party to mention all particular acts of cruelty in

the petition. The judgment of this Court in the case of Arundhati Deepak

Patil vs. Deepak Bhaurao Patil, reported at 2008 (6) Mh. L.J. 554, is

relied upon to substantiate the submission that the burden to prove would

lie on the husband, if he seeks divorce on the ground of cruelty. Thirdly,

the learned counsel has relied on the judgment of the Hon’ble Supreme

Court in the case of Rajkumar T. s/o Bhaskaran vs. Moljimol K.S. d/o K.P.

Sasidharan, reported at 2017 (5) All MR (Journal) 57, to substantiate

his submission that pleadings in regard to cruelty need to be specific.

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FCA 42/17 8 Judgment

8. On hearing the learned counsel for the parties and on a

perusal of the record and proceedings and the pleadings and evidence of

the parties, it appears that the following points arise for consideration in

this appeal:-

I) Whether the husband is entitled to a decree of divorce on the

ground of cruelty and desertion?

II) What order?

9. It appears from the evidence on record that the Family Court

was not justified in dismissing the petition filed by the husband by

recording in the judgment that the wife may not have threatened him that

she would commit suicide or may not have tried to hurt him with a knife

as he had not lodged a report in that regard in the police station.

Initially, the husband must have waited with a hope that the wife would

mend her ways. As we have already narrated the pleadings of the parties

in detail, it would not be necessary to reiterate the pleadings of the

parties. Though the learned counsel for the wife has stated that the

husband has not tendered the evidence about the pleadings in respect of

the wife threatening him that she would commit suicide and that she had

tried to assault him with knife, we find that the husband has clearly

tendered evidence in this regard. The Family Court has disbelieved the

case of the husband in regard to the threats given by the wife to commit

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FCA 42/17 9 Judgment

suicide and the attempted assault on the husband with knife only because

he had not lodged the report in regard to the same in the police station.

Normally, the parties do not approach the police station in respect of the

disputes in the matrimonial home unless it becomes virtually impossible

for them to tolerate the misbehaviour of the other, which would be

extremely harmful to his/ her life or limb or reputation. In the instant

case, the husband has clearly pleaded and has also stated in his evidence

that the wife used to threaten him that she would commit suicide and she

had made an attempt to commit the same. The husband has also clearly

stated that the wife had also tried to attack him with a knife. The

observation of the Family Court and the submission made on behalf of the

wife that the husband has failed to tender evidence on this aspect is

incorrect. The husband has clearly stated in his evidence about the

threats given by the wife to him and also about the attempt made by the

wife to assault him with a knife. It appears from the evidence of the

husband that the wife was always behaving rudely with his parents and

she desired that the husband should leave his parents and reside with her

in a separate residence. Though the wife has denied the said fact, it

appears on an overall reading of the evidence of the husband and the wife

that the evidence of the husband is more reliable. It appears from the

evidence of the husband that the wife was not willing to reside in the

joint family and wanted to have separate residence for residing separately

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FCA 42/17 10 Judgment

with her husband only. It appears from the evidence of the husband that

the wife behaved rudely with his parents. Only because the husband had

not examined his parents in this regard, it cannot be said that his

evidence is not trustworthy. This Court has time and again held that the

quantity of evidence would not be relevant while deciding the matter but

the quality of evidence would be relevant.

10. In this case, it appears that the wife had lodged a complaint

under Section 498-A of the Penal Code. It is clearly observed in the

judgment in the said case that there is no evidence in respect of the claim

of the wife that the husband had demanded money from her parents. It is

nobody’s case that the wife belonged to a rich or influential family, who

would be able to provide funds to the husband. We have held time and

again that lodging a false police complaint against the husband in respect

of a serious offence punishable under Section 498-A of the Penal Code

would tantamount to cruelty. In the instant case, we find that though the

wife had made a serious allegation against the husband that he had

demanded the sum of Rupees One Lakh from her parents and that they

had paid the same to the husband, she has not proved the said fact. We

also find that the wife has made serious allegations against the husband

that on 25.11.2009, he had mercilessly beaten her and thereafter she was

required to leave the matrimonial home and reside with her parents as he

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FCA 42/17 11 Judgment

had tried to set her on fire. These allegations are very serious. When a

wife makes an allegation of such a nature, it is least expected of the wife,

to tender oral evidence on this aspect. It is observed by the Hon’ble

Supreme Court and this Court in a number of decisions that levelling of

serious and reckless allegations against the spouse and failing to prove

the same would tantamount to cruelty. In the instant case, though the

wife had made allegations against the husband in regard to his conduct

and behaviour, the wife has not uttered a word in regard to said

allegations in her oral evidence. The Family Court, however, did not give

any thought to this aspect of the matter, though it was one of the relevant

matters that ought to have been considered by the Family Court while

deciding the petition filed by the husband on the ground of cruelty. It is

well settled that a husband could prove the cruelty by the wife on the

basis of allegations made by her against him and he could also prove the

same by pointing out that the wife has failed to prove the serious and

reckless allegations made against him by tendering evidence.

11. In the instant case, we find that the wife has ill-treated her

husband, her in-laws and has lodged a false complaint against him under

Section 498A of the I.P.C. The wife has also made reckless allegations

against the husband and she has failed to prove the same by tendering

evidence in that regard. Though the husband had issued a notice to the

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FCA 42/17 12 Judgment

wife asking her to return to the matrimonial home and had also gone to

Disha Mahila Sampudeshan Kendra, Amravati, to secure the company of

the wife, the wife has not joined the company of the husband for nearly

ten years. The Family Court ought to have considered this aspect of the

matter while deciding the petition filed by the husband. The Family

Court has, however, erroneously recorded a finding that the wife was

compelled to leave the matrimonial home.

12. In the facts and circumstances of the case, the judgment of

the Family Court is liable to be set aside. While holding so, we are

not inclined to rely on the reported judgments relied on by the learned

counsel for the wife. The judgment in the case of Ravi Kumar vs.

Julmidevi, (supra) will not apply to the case in hand. There is no doubt

about the proposition of law laid down in the judgment in the case of

Arundhati Deepak Patil vs. Deepak Bhaurao Patil, (supra) that it would be

for the party approaching the Court to prove his case. The burden would

no doubt lie on the husband to prove his case of cruelty and desertion by

the wife. The judgment in the case of Rajkumar T. s/o Bhaskaran vs.

Moljimol K.S. d/o K.P. Sasidharan, (supra) would also not apply to the

facts of the case. The husband has given specific instances of cruelty by

the wife.

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FCA 42/17 13 Judgment

13. Hence, for the reasons aforesaid, the Family Court Appeal is

allowed. The judgment of the Family Court is hereby set aside. The

marriage solemnized between the appellant – husband and the

respondent – wife on 09.05.1999 is hereby dissolved by a decree of

divorce under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act,

1955. In the circumstances, there would be no order as to costs.

JUDGE JUDGE

APTE/*GS

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