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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FAMILY COURT APPEAL No.86 OF 2014
Vaishali w/o. Rajesh Barde,
Aged : Adult,
R/o. C/o. Shri Hiwarkar,
E.W.S. Colony, New Somwaripeth,
Nagpur. : APPELLANT
…VERSUS…
Rahesh s/o. Harihar Barde,
Aged 41 years,
Occupation : School Teacher,
R/o. C/o. Samajsewa Vidyalaya,
Wadhona, Tah. Nagbhid,
Distt. Chandrapur. : RESPONDENT
———————————
Ms. Muley, Advocate for the Petitioner.
Shri Dongre, Advocate for the Respondent.
———————————
CORAM : SMT. VASANTI A. NAIK AND
V.M.DESHPANDE, JJ.
DATE : 1 st
MARCH, 2017.
ORAL JUDGMENT : (PER : Smt. Vasanti A. Naik, J.)
By this family court appeal, the appellant challenges the
judgment of the Family Court, dated 17.04.2008 allowing a petition filed
by the respondent for a decree of divorce under Section 13 of the Hindu
Marriage Act on the ground of cruelty and desertion.
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The marriage of the parties was solemnized on 27.07.1992 at
Nagpur as per Hindu rites and customs. The appellant and the
respondent started residing at village Sawargaon where, the respondent-
husband was working as a teacher. It is the case of the husband in the
petition filed by him for a decree of divorce on the ground of cruelty and
desertion that the appellant-wife was more qualified than him and,
therefore, she always felt that the respondent-husband was not a proper
match for her. It is pleaded by the husband in the petition that the wife
did not have a desire to live with the husband in Sawargaon. It is
pleaded that the wife used to pick up quarrel with the husband time and
again and used to abuse him in filthy language. It is pleaded that the
husband always tried to adjust and ensure that there was harmony in the
house but, the wife always quarreled and tried to lower the image of the
husband in the society. It is pleaded that the wife did not have any
intention to perform the matrimonial duties and she used to leave the
matrimonial home at odd times. It is stated that due to such behaviour
of the wife, the husband had to suffer great mental agony. It is pleaded
that in the first Diwali after the marriage, the wife left the house of the
husband without informing him and returned to the house on the day of
Laxmipujan. It is pleaded that the acts on the part of the wife amounted
to cruelty and the husband is entitled to a decree of divorce on the
ground of cruelty. The husband pleaded that he was also entitled to a
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decree of divorce on the ground of desertion. It is pleaded that the wife
had left the matrimonial house sometime in May 1994 without any just
or reasonable excuse and she was staying away from the husband for
about 11 years, till the petition was filed. It is pleaded by the husband
that the wife had flatly refused to come to Bramhapuri where his parents
resided. It is pleaded that the husband took several steps to bring back
the wife to the matrimonial home, but the wife did not oblige. It is
pleaded that the wife and her parents had informed the husband that she
was not ready to cohabit with the husband in the matrimonial home and
the marriage between the parties should be dissolved. The husband
sought a decree of divorce on the ground of cruelty and desertion.
The wife filed the written statement and denied the claim of
the husband. The wife denied that she had treated the husband with
cruelty. The wife denied that she illtreated the husband because she was
highly educated. The wife denied that she had no desire to live with the
parents at Bramhapuri. The wife denied that she had left the husband
without any just or reasonable excuse. The wife also denied that she
used to leave the matrimonial house time and again without any rhyme
or reason without informing the husband. The wife denied all the
adverse allegations that were levelled against her by the husband. In the
specific pleadings, the wife pleaded that the allegations levelled against
the wife by the husband only showed the normal wear and tear in the
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matrimonial home. It is pleaded that the allegations levelled by the
husband against the wife, even if held to be proved could not amount to
cruelty. It is pleaded that the husband was always suspecting the wife’s
character and the said act on the part of the husband caused severe
mental agony to the wife. The wife pleaded that an irretrievable break
irretrievably brake down of a marriage is not a ground for granting a
decree of divorce under the Hindu Marriage Act. The wife pleaded that
the husband has not pointed out that the wife had a desire to live
separately from the husband. The wife sought for the dismissal of the
petition.
The wife had filed a separate petition against the husband
under Section 18 of the Hindu Adoption and Maintenance Act for grant
of maintenance. Both the petitions, the one filed by the husband for the
decree of divorce and the other filed by the wife for maintenance were
tried together by the Family Court and while partly allowing the petition
filed by the wife for maintenance, the Family Court allowed the petition
filed by the husband for a decree of divorce on the ground of cruelty and
desertion. The judgment of the Family Court, so far as it grants a decree
of divorce in favour of the husband is challenged by the wife in this
family court appeal.
Ms. Muley, the learned counsel for the appellant-husband
submitted that the Family Court could not have granted a decree of
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divorce in favour of the husband. It is stated that the Family Court was
not justified in holding that the wife was not desirous of residing with the
husband and she had consented for a decree of divorce by mutual
consent, by accepting a sum of Rs.3/- lakhs. It is submitted that the
allegations levelled by the husband against the wife would at the most be
considered to be the acts showing the normal wear and tear in a
matrimonial house and the said allegations, even if they are held to be
proved, cannot result in holding that the wife had treated the husband
with cruelty. It is submitted that a decree of divorce could not have been
passed in favour of the husband on the ground of desertion, as there is
evidence on record to show that after the wife left the matrimonial house
in May 1994, she had tried to join the company of the husband by
returning to the matrimonial home in July 1994. It is submitted that
neither is the factum of desertion proved, nor is the factum of
‘animus deserendi’ proved in this case. The learned counsel submitted
that the petition filed by the husband for a decree of divorce was liable to
be dismissed.
Shri Dongre, the learned counsel for the respondent-husband
has supported the judgment of the Family Court. It is submitted that the
Family Court has considered the evidence of the parties in detail and has
held that the wife had treated the husband with cruelty and that she had
deserted him. It is submitted that there was ample evidence on record to
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show that the wife was having a superiority complex and she always used
to quarrel with the husband, as she was more educated than him. It is
submitted that the husband had clearly stated in his cross-examination
on the suggestion made on behalf of the wife that the wife had pointed
out a spelling mistake made by the husband and had admonished him
that being educated he should not have committed such a mistake. It is
stated that the husband had stated in his evidence, especially in his
cross-examination that the wife used to taunt the husband because he
was less educated than the wife. It is stated that the husband had stated
in his cross-examination that he has stated in his affidavit about the
behavior of the wife that lowered his image in the society. It is stated
that the husband admitted that the wife had demanded divorce on
payment of an amount. It is stated that the suggestion given on behalf of
the wife to the husband in his cross-examination and the answers of the
husband thereto would clearly prove that the wife was treating the
husband with cruelty. It is submitted that the Family Court has rightly
held that the wife had left the company of the husband without any just
or reasonable excuse. It is submitted that the Family Court has rightly
held that the wife had deserted the husband and the husband was not
responsible for the separation. It is submitted that there is nothing on
record to show that the husband had driven the wife out of the house
and that he had not taken any steps for residing together. The learned
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counsel sought for the dismissal of the Family Court Appeal.
It appears on a perusal of the original record and proceedings
and on hearing the learned counsel for the parties, that the following
points arise for determination in this family court appeal :
i) Whether the husband proves that the wife has
treated him with cruelty ?
ii) Whether the husband proves that the wife has
deserted him without any just or reasonable
excuse ?
iii) Whether the husband is entitled to a decree of
divorce ?
iv) What order ?
The pleadings of the parties are narrated in detail in the
earlier part of the judgment. The husband had entered into the witness
box and had reiterated the facts stated by him in his pleadings in regard
to the nature of the wife. He had stated that she used to leave the house
without any rhyme or reason without informing the husband. The
husband had also stated in his evidence that the wife did not like to
reside in Bramhapuri along with his parents and that on the first Diwali
she had left the house without informing him and had returned on the
day of Laxmipujan. It is stated by the husband that the wife always used
to taunt him because she had secured the degrees of M.Com., M.A. and
M. Phil. and the husband was not as educated as her. The husband
stated that time and again the wife used to quarrel with the husband and
sometimes the neighbours had to intervene and this conduct on the part
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of the wife has lowered his image in the society. The husband narrated
all the other facts pleaded by him in his petition in his examination in
chief. The husband was cross-examined on behalf of the wife. The cross-
examination of the husband is very material. In fact, the suggestions
given on behalf of the wife to the husband proves the case of the
husband that the wife had treated him with cruelty. The husband has
admitted in his cross-examination that the wife was more qualified than
him and that once she had pointed out a spelling mistake and had
scolded him that he should not have committed such a mistake, being
educated. The husband admitted in his cross-examination that there
were certain instances which made him believe that the wife was not
ready to live with him. The husband stated in his cross-examination that
he had stated in his affidavit about the wife’s behavior which resulted in
lowering his image in the society. The husband admitted in his cross-
examination that Laxmipujan falls on 3rd or 4th day of Diwali festival and
the wife had left the matrimonial home on Diwali without informing him
and had returned on the day of Laxmipujan. The husband admitted in
his cross-examination that he did not know where the wife had gone on
the day of Diwali. The husband admitted that he had no knowledge
about the plan of the wife to leave the matrimonial home in May 1994.
The husband admitted that the wife had demanded divorce on payment
of amount. The husband stated that he had stated about the fact in
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respect of demand of money by the wife in his affidavit.
It is apparent from the cross-examination of the husband that
for a petty matter, where the husband committed a spelling mistake, the
wife took the husband to task in the early days of marriage and told him
that he should not have committed such a mistake, when he was
educated. The parties had resided together for not more than four
months. Within a short period of four months a normal wife may not
even open up to tell her husband that he has committed a mistake and
that he should never commit it again. It is apparent that within a short
stay of about four months with the husband in the matrimonial home
during which period, she had left him time and again and had gone to
her parents, she had admonished the husband for a trifle spelling
mistake. The husband had stated in his cross-examination that the wife
used to taunt him because he was less educated. This suggestion should
not have come from the side of the wife to the husband in his
cross-examination. The husband had also stated in his cross-examination
that the wife had tried to lower his image in the society and that she had
left the house on the first day of Diwali without informing him and
returned to the house on the day of Laxmipujan. The husband had stated
in his cross-examination that he was not aware about the plan of the wife
to leave the matrimonial house in May 1994. The husband also stated in
his cross-examination that the wife had demanded divorce on payment of
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amount. This fact is fortified by a consent divorce petition filed by the
parties in the Family Court. The husband and the wife had agreed that
the husband would pay a sum of Rs.3/- lakhs to the wife as full and final
settlement and that the marriage between them would be dissolved.
After filing the petition in the Court, the Family Court has noted that
when the parties were called for recording the statement in respect of
consent divorce, the wife had backed out. It is apparent from the cross-
examination of the husband that the wife had demanded divorce from
the husband on payment of amount and it appears that the wife was not
ready to accept the amount of Rs.3/- lakhs as she desired some more
amount when the matter was settled and a consent decree was to be
passed by the Court. The husband had not only examined himself but
had also examined his uncle Shri Keshav Mandavgade. This witness had
clearly stated in his examination in chief that whenever the husband
asked the wife to come along with him to his parents at Bramhapuri, she
refused to accompany him. It is stated that without informing the
husband, the wife used to go to Nagpur to her parental home from
Sawargaon, when the husband was out of the house on his duties. Shri
Keshav has stated in the examination in chief that when he had asked the
wife not to behave in such a fashion, the wife said that the husband and
his family members are not dignified people and they are not much
educated. The witness stated in his evidence that the wife told him that
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she did not get a matrimonial house as per her desire and she had
married the husband only with a view to please her parents. The witness
stated that the wife had admitted that because she was not happy in the
matrimonial home, she used to leave the house and go to her parental
house at Nagpur. The witness also stated in his evidence that the wife
told him that she was ready to sever the matrimonial relationship, but
the amount spent by her father on the marriage should be returned to
her. Though, this witness was cross-examined on behalf of the wife,
there is no cross-examination on the aforesaid facts stated by him in his
examination in chief. In the absence of any cross-examination on the
material evidence tendered by Shri Keshav Mandavgade, the facts stated
by him in his examination in chief remain unchallenged and the husband
is successful in proving his case that the wife had treated him with
cruelty on the basis of his evidence as also the evidence of Shri Keshav
Mandavgade. It is also notable that though the wife had not pleaded in
her written statement that she had found a photograph of a woman in a
religious book and the husband had snatched the said photograph from
her and that he had an affair with the said lady, the wife went on to
make the aforesaid statements in her examination in chief. The Family
Court rightly held that levelling serious allegations on the character of a
party and failing to prove the same would tantamount to cruelty. The
wife has stated in the evidence, though there are no pleadings in that
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regard, that when the wife had enquired about the photograph of a
woman in a religious book of the husband, the husband had started
torturing and beating her mercilessly. If the husband had filed the
petition eleven years after the separation of the parties and if this
incident had really occurred, the wife would have, in the first place
pleaded these facts in her written statement. The wife, however, did not
do so. Levelling serious allegations against the husband’s character
without pleading and proving the same, if considered along with the
other acts on the part of the wife would tantamount to cruelty. The
Family Court held and rightly so that the wife had deserted the husband
without any just or reasonable excuse. The parties were residing
separately for more than eleven years before the husband filed the
petition for a decree of divorce. The parties had resided together only for
four months and there was a separation period of eleven years when the
petition was filed. The Family Court, therefore, held on an appreciation
of the evidence on record that the husband did not drive away the wife
from the matrimonial home, as pleaded by her and the wife had left the
company of the husband without any just or reasonable excuse. The
Family Court held that it was apparent from the evidence of the parties
that there was no intention on the part of the wife to join the company of
the husband. The case of the wife that she returned to the matrimonial
home with a view to reside with the husband cannot be believed.
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Though the wife had issued a legal notice to the husband for claiming
maintenance, the wife did not ask the husband to reside along with her.
The wife had also not filed any proceedings for restitution of conjugal
rights. If the wife really desired to live with the husband she would have
surely filed a petition for restitution of conjugal rights while filing a
petition for maintenance. The Family Court has rightly held that the wife
started living separately from the husband on her own without any
reasonable excuse and she was not ready to resume cohabitation. After
having held that the husband had not driven the wife away from the
house and that she was responsible for the separation, the Family Court
held that the husband was entitled to a decree of divorce on the ground
of desertion. We find that the Family Court has rightly appreciated the
evidence of the parties to grant a decree of divorce in favour of the
husband. We find that the wife was interested in securing money from
the husband and was not interested in residing with the husband. The
aforesaid position could be fortified by the consent terms that were
signed by the parties and presented in the Family Court. The wife then
refused to compromise the matter with a view to ensure that the husband
pays some more amount. In the circumstances of the case, it cannot be
said that the Family Court was not justified in granting a decree of
divorce in favour of the husband.
As the judgment of the Family Court is just and proper, the
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family court appeal is dismissed with no order as to costs.
JUDGE JUDGE
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