Bombay High Court: Dismissing an appeal against a family court order, a bench comprising of Hon’ble P. N. Deshmukh and V.K. Tahilramani, JJ rejected the contention of the appellant that forcing him to leave his parents' house amounted to mental cruelty by his wife. In the present case, the couple got married in 2004 and one year later the wife went to her parent’s home to give birth to their child and never returned. The husband made no attempts to get her back and in 2009 filed a case for divorce on the grounds of desertion and cruelty. He submitted a litany of allegations before the court, claiming his wife had treated him cruelly alleging misbehavior with him and his parents, demanding money from him for her father's business and stating the marriage was against her wish. He even claimed that his wife had accused him of having an affair with his sister-in-law and insisted that they should move out of his parent's house. The division bench observed that with the increase in the number of family members, it is the desirous of every woman to have a separate accommodation and it is pertinent to note that the husband himself had admitted that to avoid quarrels and disputes, such arrangements were made.
From this fact, it can be seen that the allegations were not serious in nature. The Court stated that no proof had been submitted to back the allegations. And by looking at the evidence on record, they were of the opinion that the appellant-husband could not prove that his wife treated him with cruelty, which was of such a nature that it made it difficult for him to live with her and denied him divorce.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
FAMILY COURT APPEAL NO. 99 OF 2013
WITH
CIVIL APPLICATION NO. 151 OF 2013
Vilas Raosaheb Jadhav
Versus
Aarti Vilas Jadhav
Dated: 16 January 2014. CORAM
: SMT. V.K. TAHILRAMANI &
SHRI. P.N. DESHMUKH, JJ
Heard the appellant-in-person and learned Advocate for the
respondent-wife.
This appeal is directed against the Judgment and order
2.
dated 21.01.2013 passed by the 4th Family Court, Bandra,
Mumbai in Petition No. A-1781 of 2009. In the said petition, the
appellant has prayed for decree of dissolution of marriage on the
ground of cruelty and desertion. He has also prayed for access to
By the said Judgment and decree, the Family
the minor child.
Hence, this
Court dismissed the petition filed by the appellant.
Appeal.
A few admitted facts are that :-
3.
The marriage between the parties took place on 16.03.2004
as per Hindu Vedic Rites. On 26.10.2005 a male child was born.
The appellant is seeking divorce on the ground of cruelty as well
as desertion.
4.
As far as desertion is concerned, the petition is filed on
24.07.2009. The appellant has failed to plead and prove the exact
date of desertion.
If the appellant is seeking divorce on the
ground of desertion, he has to prove that the wife had deserted
him two years prior to the filing of his petition, however, he has
not done so. In such case, the learned Judge of the Family Court
was right in holding that the appellant has not proved the ground
of desertion.
It is seen that the marriage took place on 16.03.2004 and on
5.
26.10.2005, a son was born to the appellant and the respondent.
At that time, the respondent had gone to her parental house to
stay. The appellant has not stated what efforts he has made to
bring back the respondent after delivery. So also, he has not
examined any other witness to show that any efforts were actually
made by him to bring back the respondent. Looking to all these
facts, specially the fact that the exact date of desertion has not
been proved by the appellant, the learned Judge of the Family
Court had rightly answered the issue in the negative.
6.
As far as the issue relating to cruelty is concerned, the first
allegation levelled by the appellant against the respondent is that
she started misbehaving with him and his family members,
however, it is noticed that he has not given any details or
specified the date, time and the exact misbehaviour of the
respondent. In such case, it is found that this first allegation is
very vague in nature.
The second allegation is that the respondent started
7.
demanding money from the appellant for her father's business.
The evidence on record shows that the appellant himself had
obtained loan from Dattaseva Sahakari Patpedhi Ltd., Mumbai of
Rs. 3,00,000/- by mortgaging his residential house on 20.03.2008.
This clearly shows that the appellant was not in a position to give
a loan to anyone else. As he himself was required to take a loan,
there was no question of giving any loan to others.
8.
The third allegation is that the respondent was demanding
separate residential premises. It is a desire of every woman to
have a separate accommodation with increase in number of
family members. It is pertinent to note that the appellant himself
has admitted that to avoid quarrels / disputes, such arrangements
were made. From this fact, it can be seen that the allegation is
9.
not serious in nature.
It is the case of the appellant that the respondent told him
that the marriage was performed against her wish. This caused
The evidence on record shows that the total
cruelty to him.
Within short span, the respondent delivered a child on
years.
cohabitation between the parties was very small i.e less than two
26.10.2005. If the allegation of the appellant is to be accepted
that the respondent told him that the marriage was performed
against her wish, then in natural course, the respondent would
have disclosed this fact immediately after the marriage and could
not have told this to the appellant after birth of the child. Thus,
the evidence of the appellant on this aspect is not seen as
probable and believable.
10.
Another allegation levelled by the
appellant is that the
respondent alleged that the appellant is having an affair with his
sister-in-law.
The appellant has not proved the same by
examining any independent witness. The entire evidence of the
appellant on this aspect is very vague, no details have been
stated; hence, the same appears to be improbable considering his
own pleadings.
The allegations levelled by the appellant if assumed to be
11.
proved, it cannot be said that those are grave and weighty. The
The conduct of the
allegations revolve around mental cruelty.
respondent cannot be called as serious which makes it difficult for
the appellant to live with the respondent. On the other hand, the
evidence of the appellant shows that he has failed to take proper
care of the respondent and minor child.
12.
Looking to the evidence on record, we are of the opinion
that the appellant has not been able to prove that the respondent
treated him with cruelty which was of such a nature that it made it
difficult for the appellant to live with the respondent. The learned
Judge of the Family Court has rightly considered all the aspects
and dismissed the petition.
No interference is called for.
The
13.
appeal is dismissed. No order as to costs.
At this stage, it may be stated that as the appeal is
dismissed, there is no question of access to the child, hence, the
In view of disposal if the appeal, nothing survives in the Civil
14.
said prayer is rejected.
Application No. 151 of 2013 and the same is disposed of as such.
[SHRI. P.N. DESHMUKH, J ]
[SMT. V.K. TAHILRAMANI, J ]
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