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Vishnu Babanrao Yadav vs Nalini Vishnu Yadav on 15 March, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

FAMILY COURT APPEAL NO.10 OF 2015

Vishnu s/o Babanrao Yadav,
Age-42 years, Occu:Service,
R/o-Shivnari Sankul, Vijay Nagar,
Deuli Road, Satara Parisar,
Aurangabad
…APPELLANT
VERSUS

Nalini w/o Vishnu Yadav,
Age-32 years, Occu:Service,
R/o-c/o-Pandit Radhakishan Jadhav,
Hanuman Galli,
Near Thatte Water Tank,
Begampura, Aurangabad.
…RESPONDENT


Mr.S.P. Salgar Advocate for Appellant.
Ms. N.R. Chobe Advocate with Mr. N.P.
Suryawanshi for Respondent (Absent).

CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.

DATE OF RESERVING JUDGMENT : 28TH FEBRUARY, 2018.

DATE OF PRONOUNCING JUDGMENT: 15TH MARCH, 2018.

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JUDGMENT [PER S.S. SHINDE, J.]:

1. By this Family Court Appeal, the

Appellant – husband challenges the Judgment and

order dated 18th July, 2014 passed by the Judge,

Family Court, Aurangabad in Petition No.A-75 of

2011 thereby dismissing the Petition filed by the

Appellant for a decree of divorce on the ground of

cruelty.

2. The case of the Appellant as disclosed in

the petition filed by him for a decree of divorce,

in brief, can be stated as under:

A) The marriage between Appellant-husband

and Respondent-wife was solemnized on 12th March,

2000 as per the customs prevailing in their

communities and their marital tie is still in

existence. After marriage, the Respondent came to

cohabit in the matrimonial house where she behaved

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well for 15 days only and thereafter for one or

other reason she started quarreling and ill-

treating the Appellant. The Respondent wife is

only daughter of her parents and so her behaviour

is egoist and she is not ready to listen to

anybody. She is serving as Computer Operator in

Shiv Chhatrapati College and is very proud of her

job. Respondent wife never gave her salary to the

Appellant-husband. Whenever she was asked for

salary, she used to quarrel, abuse and threaten of

committing suicide and filing false complaints

with police. She was in the habit of writing

suicide notes. Whenever the Appellant returned

from his office, Respondent did not open the door,

some times she used to lock herself in the bedroom

and never opened the door, due to her such

behaviour the Appellant used to remain starved and

also used to sleep outside the house. The

Respondent did not even allow the Appellant to

touch her body. She openly used to tell him that

she dislikes him and her marriage was performed

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against her desire. She also used to quarrel with

parents and relatives of the Appellant.

B) Through the wed-lock no issue is born to

the Appellant and Respondent. The Appellant took

the Respondent to various hospitals for giving

medical treatment to her, but the Doctor opined

that the Respondent is not capable to give birth

to a child. This fact was suppressed from the

Appellant, and the Respondent and her father

decided to go with the process of test tube baby

secretly, but the Doctor told that unless the

Appellant is brought the process of test tube baby

will not be carried out. The Appellant has not

given consent for carrying out process of test

tube baby and therefore Respondent got angry and

went to her parents house.

C) The Appellant tried to bring Respondent

back several times, but she did not come. So on

27th July, 2009 the Appellant filed Petition for

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divorce before the Family Court, Aurangabad

bearing Petition No.A-269 of 2009. In the said

Petition, compromise took place and the said

Petition was accordingly disposed of. As per the

compromise, the Appellant and Respondent started

cohabiting together. Thereafter also Respondent

filed proceeding under the Protection of Women

from Domestic Violence Act and also proceeding

under Section 125 of the Code of Criminal

Procedure.

D) In February, 2011 there was marriage of

brother of Respondent but no invitation was given

to the Appellant. On enquiry, Respondent told that

she has no relation with Appellant and so there

was no question of inviting him for function. This

shows that the Respondent does not treat Appellant

as her husband. When the Appellant asked

Respondent about her brother’s marriage, she got

angry, and threw wheat flour on the ground, which

was in the house, and also tried to burn articles

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in the house by pouring kerosene on the same. In

this way the Respondent caused severe cruelty to

the Appellant and since last three years she

failed to give him sexual satisfaction. So on all

these grounds, Appellant has claimed divorce from

Respondent.

3. The Respondent wife filed written

statement in the Petition and denied all the

allegations levelled by the Appellant-husband

against her. Respondent pleaded that her father

purchased one plot in her name at Hanumannagar,

Aurangabad. The Appellant started insisting the

Respondent to transfer the said plot in his name

and when she refused for the same, he ill-treated

her and stopped talking with her brother and

father. Appellant started getting food from the

mess from himself, and avoided to bring grocery

articles in the house. For Diwali festival of the

year 2008, the Appellant went to his parents house

at his native place and after returning from

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there, he started insisting Respondent to give

divorce as he wanted to perform second marriage.

When Respondent refused for the same, Appellant

started to give ill-treatment to her. He never

took her for the marriage ceremony of his

relatives. As the behaviour of the Appellant

remained unchanged, Respondent filed complaint

with Women Grievance Redressal Cell. As the

Respondent could not conceive child, she took

medical treatment but Appellant never co-operated

with her in the said medical treatment. He

intentionally avoided to keep sexual relations

with her when the Doctor advised for the same.

Thereafter Appellant started residing with his

friend and from there he intentionally used to

come at odd hours of night and used to bang door

and if Respondent used to open the door, Appellant

used to assault her and used to tell her to leave

the flat. In fact the Appellant has caused severe

cruelty to the Respondent. It is pleaded by the

Respondent that the Appellant is now residing with

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one lady named Vidya at Gurudatta Nagar, even one

son is born to him from said Vidya. Appellant

wants to perform marriage with said Vidya and

therefore he is ill-treating Respondent and

insisting for divorce.

4. After considering the afore-said

pleadings of the parties, and considering the oral

and documentary evidence brought on record, the

Family Court dismissed the Petition for divorce.

5. Learned counsel appearing for the

Appellant invites our attention to the evidence of

the Appellant as well as the evidence of father of

the Appellant, namely Vishnu Babanrao Yadav, and

submits that Appellant has proved that after the

marriage Respondent was not behaving properly and

therefore on the ground of ‘cruelty’ he is

entitled for decree of divorce. Referring to the

grounds taken in the Appeal, learned counsel

submitted that the Family Court has failed to

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appreciate the oral and documentary evidence in

its proper perspective. Therefore, he prayed that

the Appeal may be allowed.

6. Though appearance has been caused by two

Advocates for the Respondent-wife, when the Appeal

was called out for hearing, none appeared for

Respondent.

7. We have perused the original record and

proceedings. On the basis of rival contentions and

reliefs claimed, the issues were framed by the

Family Court. The Appellant-husband was expected

to prove the case of desertion and cruelty.

8. We have perused the evidence of the

Appellant. The examination-in-chief is as per the

pleadings in the Petition. The evidence of the

husband shows that on previous occasion also there

was dispute and he had filed Divorce Petition

bearing No.A-269 of 2009, but after intervention

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of well wishers, the compromise was arrived at,

and the dispute was settled and wife had resumed

for cohabitation. After resumption of the

cohabitation, there was again dispute between the

couple and Respondent wife filed the false

proceeding under the provisions of the Protection

of Women from Domestic Violence Act and she also

filed proceeding under Section 125 of the Code of

Criminal Procedure Code. Appellant further deposed

that he was not invited for the marriage ceremony

of brother of the Respondent and on that count

also there was quarrel between the couple.

9. We have perused the cross-examination of

the Appellant. The Appellant has specifically

admitted that in both the proceedings filed by

Respondent, under the provisions of the Protection

of Women from Domestic Violence Act and under

Section 125 of the Code of Criminal Procedure,

orders are passed in favour of Respondent and

Appellant was directed to pay maintenance to the

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Respondent and allow her to reside in his house.

Thus it is clear that there is no substance in the

contention of the Appellant that false cases were

filed by the Respondent against him.

10. We have perused the evidence of Babanrao

Ashruba Yadav, father of the Appellant. In his

examination-in-chief he has reiterated the

pleadings in the Petition. During the course of

cross-examination, witness Babanrao has admitted

that once or twice in a year, he had visited the

house of Vishnu at Gurudatta Nagar. Thus, father

of the Appellant has admitted that Appellant was

residing at Gurudatta Nagar and thus he supports

the allegation of the Respondent that Appellant is

residing at Gurudatta Nagar with one lady, namely

Vidya. Babanrao further admitted that he never

visited the resident of Appellant and Respondent

when they were residing at Shivneri Sankul. He

further stated that after their marriage Appellant

and Respondent only once visited the village

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Chikhali, the native place of Babanrao. Thus, it

is clear that father of the Appellant has no

personal knowledge exactly on what issues there

was dispute between the couple and he was not on

visiting terms with the couple.

11. Respondent has examined herself at

Exhibit-49. In her examination-in-chief she

deposed that her father had purchased a plot in

her name at Hanuman Nagar, Aurangabad. She further

deposed that Appellant was insisting her to

transfer the said plot in his name and when she

refused for the same, Appellant started to ill-

treat her and also quarreled with her father. She

further deposed about ill-treatment given to her

by the Appellant on various occasions. She further

deposed that Appellant is residing in Gurudatta

Nagar, Aurangabad with one lady, namely Vidya, and

said Vidya had conceived a son from the Appellant.

12. During the course of her cross-

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examination, Respondent admitted that she is

presently working as computer operator in Shiv

Chhatrapati College, Aurangabad. She has denied

that for her appendix operation entire amount was

spent by the Appellant. She has admitted that

Appellant had purchased a flat in Shivneri Sankul

at Satara Parisar, Aurangabad.

13. The Respondent contended that Appellant

had illicit relations with one lady, namely Vidya,

he is residing with said Vidya at Gurudatta Nagar,

and he has one son from the said relationship. To

substantiate her aforesaid contentions, Respondent

has examined the peon working in Municipal

Corporation, Aurangabad. He had produced on record

attested copy of Birth Certificate of one male

child, wherein name of father of the child is –

Vishnu Babanrao Yadav, i.e. Appellant, and name of

mother is Vidya Vishnu Yadav.

14. Respondent has also examined one Karbhari

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Namdeo Nalawade, Police Naik at Exhibit-69. He

deposed that Appellant has lodged a complaint

alleging that father and brothers of the

Respondent had abused and beaten him at Shivneri

Sankul, Satara Parisar, Aurangabad. He further

deposed that he had inquired into the said

complaint and after inquiry it was revealed that

no such incident took place at Shivneri Sankul.

Thus, from the evidence of this police person, it

is clear that Appellant was in the habit of filing

false complaints making allegations against father

and brothers of the Respondent.

15. We have already narrated the pleadings of

the parties and the evidence tendered by them. The

allegations levelled by the Appellant-husband

against the Respondent-wife are absolutely vague

and general in nature. The Appellant has not given

specific instances regarding the allegations

levelled by him against his wife. Appellant has

pleaded that the wife used to behave badly with

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the husband and his parents, but the said

statement is not substantiated by the Appellant by

giving specific instances. The Appellant has

alleged that Respondent was in the habit of

writing suicide notes, however the copies of said

suicide notes are not placed on record. The

Appellant has further alleged that Respondent is

not able to conceive a child. However, in support

of the said allegation, the Appellant has not

placed on record any medical evidence. Though

Appellant had denied his illicit relations with

one Vidya and that he was residing with said vidya

at Gurudatta Nagar, father of the Appellant had

clearly admitted in his cross-examination that

Appellant was residing at Gurudatta Nagar. Though

in support of allegations of cruelty the Appellant

has examined his father, during the course of his

cross-examination this witness Babanrao admitted

that he was not frequently visiting the residence

of the couple and he was not knowing about the

dispute between the couple. He further admitted

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that couple was not frequently visiting his

residence at Chikhali. Thus, on the point of

‘cruelty’ the evidence of witness Babanrao is not

at all useful.

16. Though earlier divorce Petition was filed

by the Appellant making allegations of cruelty,

the same was disposed of in terms of compromise

arrived at between the couple and in pursuance of

the said compromise, the couple had started

residing together. Again the Appellant has filed

present divorce Petition bearing No.A-75 of 2011

making same allegations which were made in the

earlier Petition, which was disposed of in terms

of compromise arrived at between the parties.

Therefore such bald allegations cannot be

believed. In this respect, the Family Court has

rightly observed that the Appellant cannot take

any benefit of the earlier complaints filed by him

and the contents of the previous Petition filed by

the Appellant.

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17. Though the Appellant has produced on

record copies of the complaints filed by him in

the police station making allegations against the

Respondent, on perusal of the contents of the said

complaints, it appears that such complaints were

filed by the Appellant only to create record

against the Respondent.

18. From the perusal of entire evidence

placed on record, we are of the considered view

that the allegations made by the Appellant against

Respondent regarding cruelty are too vague and

general. A decree of divorce on the ground of

cruelty cannot be granted on the basis of general

allegations levelled by the husband against the

wife, without clearly mentioning the manner in

which the wife has ill-treated the husband.

General allegations that the wife used to avoid

the husband and his family members and that she

used to often visit her parental house and was not

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preparing food for the husband, was not opening

the door of the house after his return to home,

cannot constitute cruelty.

19. The Family Court has rightly considered

the evidence on record to hold that the

allegations levelled by the husband against the

wife do not constitute cruelty which would entitle

the husband to a decree of divorce under Section

13(1)(i-a) of the Hindu Marriage Act. The Family

Court has rightly came to the conclusion that the

conduct of the wife was not such that she had

shown total disregard to the husband. On

appreciation of the entire evidence on record, we

find that the husband has not established that the

wife had treated him with cruelty. The Family

Court has rightly came to the conclusion that the

husband has alleged cruelty twice, firstly in his

previous Petition No.A-269 of 2009 and secondly in

the present Petition, but he has miserably failed

to prove the same. The Family Court has further

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held that, the defence which is proved by

Respondent wife shows that husband himself has not

only kept illicit relations with one lady named

Vidya but also he has begotten one son from her.

The Family Court has rightly came to the

conclusion that the husband was not entitled to a

decree of divorce on the ground of cruelty.

20. For the reasons afore-stated the Family

Court Appeal stands dismissed, with no order as to

the costs.

[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
asb/MAR18

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