Full Text
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 106 OF 2012
Sunesh Sudhakar Rele
Age: 44 years, Occu: Nil, R/o. 3, Sarla Sadan, Haldankar Bridge, Mumbai – 400007. … Appellant
(Orig. Petitioner).
33 years, Occu: Service
R/o. Flat No.1, Building No. 2A, Saptarshi CHS Ltd., Datta Mandir Road, Virar (West), District: Thane, Pin Code : 401 303. … Respondent
(Orig. Respondent).
…
Mr. V. Y. Sanglikar, for the Appellant.
None for the Respondent. ...
JUDGMENT
2 The appellant-husband entered into the matrimonial alliance with respondent-wife on 10th July, 2008 by registering the marriage with the Registrar of Marriages, Old Custom House, Shahid Bhagatsingh Marg, Fort, Mumbai No.1. Parties have no issue from the wedlock.
3 It is the case of the appellant that from the day of their marriage the respondent was not very happy and was not talking with him and his family nicely. On the next day of the marriage itself, the respondent informed the appellant and his parents that her father had forced her into this marriage and had not allowed to get married to the person she wanted to and she had no intention to continue with this marriage and would do everything to breakup this marriage as she wanted a divorce.
4 The appellant-husband further alleged that after their marriage, the respondent started cruel and rude behaviour with him and his parents, who are senior citizens. She used to abuse his parents for petty issues and also used to give bad words to them and threatened to beat them on several occasions.
5 Appellant-husband then contends that the respondent informed him of having an affair with some other boy, who was very well known to her father but her father was against the said relationship, he did not inform the same to the appellant and his parents and concealed this material information and forced her to marry him against her wish. This speaks volumes of mental cruelty that the appellant and his parents had been a victim of. She also expressed her intention of being not interested in the said marriage and also said that she would continue to keep sexual relations with the other men even after her marriage with him with the sole intention of humiliating and spoiling him and his family name in the society.
6 According to appellant-husband, he was tolerating such cruel behaviour of the respondent just to save his marital life but after two months of the marriage in the month of September 2008, the respondent picked up a quarrel and started abusing him for no reason. Even she left the matrimonial home only to return after ten days with an intention of divorce.
7 The appellant-husband further alleged that the respondent used to avoid the physical relations and would tell that she was getting sexual satisfaction from other men and did not need to keep any sexual relations with him as he is of short height, not having good physique and not having real hair and wears a wig.
8 Ultimately, the respondent left the matrimonial house on 23rd April, 2009 and took all her ornaments along with her. After leaving the matrimonial home, the respondent even sent a legal notice and claimed of having been pregnant, although she was not pregnant and had no signs of any pregnancy when she left the matrimonial home.
9 The appellant-husband lastly states that the respondent had made his life very miserable and it is very difficult to live together and to enjoy marital life. It is against this backdrop, the appellant instituted the Petition for divorce on the ground of cruelty.
10 The aforesaid Petition was resisted by the respondent-wife by filing her written statement at Exh. 13. The allegations made in the Petition were denied by the respondent. It is the case of respondent that she never asked divorce from the petitioner and rather, it was appellant who repeatedly asked for divorce as he wanted to remarry again with other girl for sake of fun and enjoyment. She denied that she ill-treated her in-laws and ever assaulted them. It is her case that she had never any affairs with another person before her marriage and as the appellant and his father asked from her father dowry by way of moneys and flat and as the same was refused, they have thrown mud on her clean character. She also alleged that due to harassment and mental torture by the appellant she suffered a miscarriage.
11 According to respondent-wife, she was always ready and still ready to stay with the appellant and lead a peaceful married life and there being no merit in the Petition, the same is liable to be dismissed with costs.
12 The learned trial Judge framed issues at Exh. 15. After recording the evidence, the learned Judge came to the conclusion that the appellant has failed to prove that the respondent treated him with cruelty as contemplated under Section 27(d) of the Act. The learned Judge accordingly dismissed the Petition of divorce.
13 Mr. Sanglikar, learned counsel appearing for the appellanthusband submitted that the learned Judge of the Family Court has gravely erred in dismissing the Petition. He submitted that the learned Judge failed to appreciate Section 27(d) of the Act and rather, after going through the said provisions, he ought to have arrived at a conclusion that the appellant was entitled for decree for divorce.
14 Stretching the submissions further, the learned counsel contended that the learned Judge of the Family Court ought to have held that the respondent was very cruel in her behaviour towards the appellant and his parents as she continuously harassed, abused and assaulted the parents of the appellant.
15 Similarly, the respondent-wife was never interested in continuation of the marriage with the appellant-husband and was more interested in snatching and/or exploiting moneys from the appellant and this fact is evidently clear from her illegal demand of Rs.10 lakhs for giving consent for decree for divorce. Learned counsel also invited our attention to the notice which contains not only abusive words but also demand of Rs.10 lakhs. Since there was total failure on the part of the learned Judge of the Family Court in appreciating the evidence and material on record, the impugned judgment and order deserves to be set aside by allowing the Petition of appellant-husband, argued learned counsel. Learned counsel also placed reliance in Suman Kapur Vs. Sudhir Kapur[1] in support of his submissions.
16 None appeared for the respondent-wife though served when the matter was called out.
17 We have gone through the evidence and the necessary documents forming part of the compilation and the record and proceeding during the course of argument.
18 The word “cruelty” has not been defined in the Act. Cruelty can be of two kinds, one is physical cruelty and the other is mental or by conduct. Casual and trivial matters arising between the spouses do not amount to cruelty. The principle question which requires for consideration in the instant case is as to whether from the evidence on record, can it be inferred that the respondent-wife has committed an act of cruelty towards the appellant-husband and whether the marriage is required to be dissolved on the aforesaid ground.
19 The appellant-husband in support of his case examined himself and his father Sudhakar Surendranath Rele. On the other hand, the respondent-wife examined herself and her father Jairam Savleram Mozad.
20 The appellant-husband has filed his affidavit which is at page 64 in the compilation. In his affidavit he deposed that on the next day of the marriage itself, the respondent -wife informed him and his parents that her father had forced her into the marriage and had not allowed her to get married the person she wanted to and she had no intention to continue with the marriage and that she would do everything to break up this marriage and she wanted a divorce. He further states that even on their honeymoon she was abusing him daily and reminding him that her father had forced her into this marriage. Even after returning back from their honeymoon, the respondent -wife abused him and his parent daily. His parents being senior citizens were subjected to daily abuses on petty issues and she used to give bad words to them and threatened to beat them on several occasions.
21 His evidence then shows that even the respondent-wife informed him of having an affair with some other boy who was very well known to her father but as her father was against the said relationship, he did not inform the same to him and his parents. Respondent-wife’s office timings were from 9-30 a.m. to 6-00 p.m. but she always used to come home only after 9.00 p.m. daily. When confronted, the respondent-wife would tell that she is doing all this purposely as she was not at all interested in the said marriage. Even she told that she would continue to keep sexual relationship with other men even after her marriage with the sole intention of humiliating and spoiling his and his family’s name in the society. She would return from the office after 9-00 p.m. and would tell him how much she had enjoyed having sex with other men that day and that she would continue to keep sexual relationship with other men even after her marriage. She also used to avoid physical relations with him by saying that he is short in height, does not have good physique, have no real hair and wears a wig. Because of all these harassment his parents shifted to their native place at Pune in November 2008.
22 It is his further evidence that the respondent-wife always used to abuse him and used to call him dirty words like, “ gjkeh ”. Even she used to call his father as “FksjMk” and corrupt person and even attempted to assault him. Ultimately, she left the matrimonial home on 23rd April, 2009 along with various gold ornaments and also gave a writing to that effect (Exh.C).
23 At the time of leaving the matrimonial home although she was not pregnant but in a notice dated 10th June, 2009 served by her lawyer she claimed the pregnancy from him. Vide notice dated 26th October, 2009 she even claimed and demanded a sum of Rs.10 lakhs for giving him a divorce. Thus, according to him, after considering the various instances of cruelties to him and his family members he prayed that the marriage solemnized between him and the respondent-wife be dissolved by a decree of divorce.
24 In order to substantiate the case for the cruelty, various instances are cited by the appellant-husband in his substantive evidence which are as under: i) That on the very next day of the marriage, the respondent-wife informed him and his parents that her father had forced her into the marriage and she had no intention to continue with the marriage and that she would do everything to break up the marriage as she wanted a divorce; ii) That the appellant-husband and his parents were always subjected to abuses; iii) That she would call him “gjkeh”(knavish) and his father as corrupt and “FksjMk” (used contemptuously to an old person); iv) That she revealed of having an affair with a boy, a fact which was known to her father; v) That she would continue to keep sexual relations with other men even after her marriage with the sole intention of humiliating him and spoiling him and his family’s name in the society. vi) That after returning home from the office after 9-00 p.m. she would tell appellant-husband how much she had enjoyed having sex with other men that day; and vii)That she used to avoid to have physical relations and tell him that he is short in height, not having good physique and real hair and wears a wig.
25 It is apposite to note here that all the above instances have been simply denied, in the fashion of the denial in the form of written statement and has been replicated by respondent-wife in her examination-in-chief.
26 All the aforesaid instances are firmly established on record in as much as, quite surprisingly, these instances are neither controverted or assailed nor even remotely touched in the crossexamination. Simply, the version of appellant-husband in consonance and confluence with pleadings have gone unchallenged in the cross-examination without being tested with any sincerity and vigorousity by the respondent-wife.
27 We also note from the above instances with deep anguish that relation between them was not marred by ordinary wear and tear of matrimonial life. Respondent-wife’s bursting out at regular intervals as to tying of nuptial knot against her wish, having an affair with other boy and her leading adulterous and a life of sexual debauchery by all means can be termed as marital misconduct constituting mental cruelty to the husband, to say the least.
28 From the evidence of appellant-husband, it is apparent that respondent-wife after leaving the matrimonial home used to send him SMSs in a very filthy language. The typed copy of the list of SMSs is annexed at Exh. ‘J’ and reads thus:
3.08 Harami nich tu baap honar (gjkeh uhp rq cki gks.kkj)
3.09 Harami nich tu baap honar (gjkeh uhp rq cki gks.kkj)
3.12 Tujha nich harami thirdclass mul majha potat ahe (rq> uhp gjkeh FkMZDykl eqy ekÖ;k iksVkr vkgs-)
7.24 Taklya tu baap honar (VdY;k rq cki gks.kkj-)
7.54 Harami taklya halkat tu baap honar ( gjkeh VdY;k gydV rq cki gks.kkj-) 05.06.2009 7.59 Tula tuza mula baddal kahich apulki nahi. Kiti kamina, halkat, nich baap ahes tu aani tujha khandan (rqyk rq>k eqykcn~ny dkghp vkiqydh ukghdhrh dehuk] gydV] uhp cki vkgsl rq vkf.k rq> [kkunku- 27.06.2009
4.27 Harami tu baap honar (gjkeh rq cki gks.kkj)
4.33 Bhikari tu baap honar ( fHkdkjh rq cki gks.kkj)
5.04 Harami tujha paap potat gheun phirte ( gjkeh rq>k iki iksVkr ?ksoqu Qhjrs-)
29 The above SMSs are not again denied by the respondent-wife nor its truthfulness is questioned in the cross-examination. The above noted SMSs are definitely and simply in bad taste. This goes to show respondent-wife’s attitude, conduct and behaviour towards appellant-husband not only indignant and rude but humiliating as well. She repeatedly addressed husband as “gjkeh”(knavish) over and over again over a period of time. This perpetual nagging was certainly and completely intolerable. There appears to be element of truth when appellant-husband deposed that his life became miserable because of rude and cruel behaviour of respondent-wife as it constantly endangered of his mental peace because of infliction of abusive words upon him.
30 The circumstances could not be considered as conducive to congenial married life. Callous attitude of respondent-wife in this behalf certainly amounts to cruelty. The incident so noted can not be by any stretch of imagination be regarded as trivial matters in the day-to-day married life and rather were very serious.
31 It is then seen from the evidence of appellant-husband that the respondent-wife finally on her own left the matrimonial home along with her parents and brother on 23/04/2009. She also took her ornaments along with her as per the list and handed over the house keys as she was leaving his house permanently with the intention to never return. She also gave in writing the above noted facts. The said writing is at Exh. ‘C’.
32 From a bare reading of Exh. ‘C’, it would appear that the respondent-wife on her own volition left the matrimonial house on 23/04/2009 along with the ornaments as per the details and description given therein. This evidence of appellant-husband is also supported by appellant’s father who also testified before the Court. Appellant’s father, namely, Sudhakar Surendranath Rele has clearly stated in his evidence that when the respondent left the house, she took all her jewellery. He was very much present and tried to convince her but she did not listen. Even she executed a writing (Exh.C) when she collected all her ornaments. This evidence is nowhere assailed in the cross-examination by the respondent-wife.
33 As against above, the respondent-wife stated in her evidence that on 04/04/2009 she demanded gold jewellery from the appellant and his parents as she wanted to attend her cousin’s marriage. However, they refused to give her ornaments, abused and threatened her to throw out of their house. With the result to save her life, she was compelled to leave the in-laws house.
34 The evidence of respondent-wife is sharply at odds vis-a-vis the writing at Exh. ‘C’ executed by her. On the contrary, Exh. ‘C’ shows that she had no complaints about the ornaments. The said writing even does not suggest remotely that she was compelled to leave the house after handing over the keys of the house to the appellant.
35 Since this Exh. ‘C’ was shown to the respondent-wife in the cross-examination it was marked at Exh. 60. It appears from her cross-examination that she and her father were forced to put their respective signatures on Exh. 60. However, she and her father admitted in their respective cross-examination that they did not file any complaint before the police against the appellant-husband and his father about her and her father’s signatures being taken under duress.
36 In the case of Suman Kapur Vs. Sudhir Kapur (Supra), the wife was a career-oriented lady wanting to pursue her professional career to achieve success and thus was found constantly and continuously avoiding staying with husband and preventing him to have matrimonial relations. Further, letters written by her showing that she was keen to live independent life and wanted that husband should not bring her marital status preventing her from pursuing her career, had lost interest in marriage and did not believe in Indian Culture. She was further found to have called parents of husband as “Ghosts” and had gone to extent of making serious allegations that husband had married to an American woman. In view of that findings the Hon’ble Apex Court termed conduct of wife amounts to mental cruelty.
37 As far as the case in hand is concerned, we have not only enumerated various instances vis-a-vis respondent-wife but have also found her conduct and intention quite questionable.
38 The respondent-wife has also examined her father in support of her case. Her father Jairam Savleram Mozad states in his examination-in-chief that because of the harassment given by husband and the parent-in-laws and fearing that something untoward may happen to her life, her daughter left her matrimonial house on 23/04/2009.
39 There is no satisfactory corroboration to the version of father from the mouth of his daughter. Very surprisingly the suggestion given to the appellant- husband in the cross-examination would show that the respondent- wife was dragged and driven out of the conjugal home which is out rightly denied by him. The suggestion so given is neither borne out of the pleading nor gets support from the testimonies of either respondent-wife or from her father. Conflicting stands have been taken by the respondent-wife and her father.
40 The evidence of appellant-husband then shows that when the respondent-wife left the conjugal home she was not pregnant and had no signs of pregnancy. But, she alleged and claimed the pregnancy in her notice dated 10/06/2009 sent by her through her lawyer. On the other hand, it is the evidence of respondent-wife that due to mental torture and frequent threatenings given by the appellant-husband her child was not born and there was a miscarriage. Owing to their strange behaviour she lost her child. This was an irreparable loss to her and therefore, according to her, the appellant-husband should pay her a sum of Rs.10 lakhs towards the deterioration of her health.
41 We do not find any material on record to substantiate the version of respondent-wife that because of some extraneous reasons, like her disturbed mental condition catalysed by the alleged behaviour of husband and parent-in-laws she suffered miscarriage. Surprisingly, the learned trial Judge, at para 26 of the impugned judgment observed that the child was aborted.
42 There is sea of difference between abortion and a miscarriage. The evidence led by respondent-wife is that of miscarriage and not abortion. In either case, again there is no evidence on record to show that the fact of miscarriage was immediately informed to appellant-husband. If it was abortion, as per the observation of the learned trial Judge, then certainly respondent-wife denied the appellant- husband the joy of feeling of fatherhood and his parents were also deprived of grand-parenthood of a new arrival. It is also not the finding of the learned trial Judge that the pregnancy was either aborted or terminated with the knowledge or consent of appellant-husband. If, on the other hand, it was a case of natural abortion or miscarriage then in that eventuality also neither appellant-husband was kept in loop, leave apart the absence of material substantiating the claim of miscarriage suffered by respondent-wife.
43 One more disturbing aspect emerging from the record is that respondent-wife was reluctant to stay with appellant-husband and somehow wanted to achieve monetary gain. Her evidence shows that because of alleged miscarriage her health was deteriorated and therefore, she claimed Rs.10 lakhs from appellant-husband. This is quite inconsistent with her own notice dated 16/10/2009 (Exh. ‘H’) addressed to the counsel of appellant-husband. In the said reply notice she categorically stated that she did not want to give divorce to appellant-husband and if appellant-husband wanted a divorce from her then he should shell out an amount of Rs.10 lakhs towards the compensation for giving consent for decree for divorce. This questionable conduct of respondent-wife went unnoticed from the sight of learned trial Judge.
44 Even otherwise, the crucial admission and contradiction appearing in the evidence of respondent-wife and her father, as pointed out by us herein-above, were also not taken in proper perspective by learned trial Judge. Above all, the learned trial Judge also lost sight of the fact that the testimony of appellanthusband remained intact in the cross-examination. It is a case of virtual no cross-examination of various instances as deposed to by appellant-husband in his substantive evidence. In a sense, the learned trial Judge recorded perverse findings which are not consistent with the evidence on record. Therefore, the findings so arrived at by learned trial Judge is not sustainable.
45 Considering the evidence on record, in our view, the appellant-husband has successfully made out a case for getting a decree for divorce on the ground of cruelty.
46 In view of above, we pass the following order: ORDER Family Court Appeal No. 106 of 2012 stands allowed. i) The impugned judgment and decree dated 2nd April, 2012 passed by the learned Judge of the Family Court is quashed and set aside. ii) Petition No. A-22 of 2010 stands decreed with costs. iii) Marriage between appellant-husband and respondentwife, solemnized on 10th July, 2008 stands dissolved by a decree of divorce under Section 27(1)(d) of the Special Marriage Act, 1954. iv) Decree be drawn accordingly. (V. G. BISHT, J.) ( R. D. DHANUKA, J.)