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Judgments of Supreme Court of India and High Courts

Vaishali Rajesh Barde vs Rahesh Harihar Barde on 1 March, 2017

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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

okMksns

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