The pleadings in the Hindu Marriage Petition are not
specifically denied and there is an evasive reply to the pleadings. The
pleadings in the written statement are philosophical. Some of the
material allegations in the Hindu Marriage Petition are not denied at all.
Without any specific pleadings of demand of dowry by the respondent in
the written statement, the respondent was confronted with the
suggestions in regard to the demand of dowry of Rupees Five Lacs in his
crossexamination. The false and unsubstantiated charges against the
respondent in regard to the demand of dowry would amount to cruelty. It
has been held by this Court that serious unsubstantiated allegations
would amount to cruelty.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO. 1253/2008
Smt. Bhawna w/o Vijaykumar Sakhare
vs
Vijaykumar s/o Tarachand Sakhare
CORAM :SMT.VASANTI A. NAIK AND
A.B. CHAUDHARI, JJ.
DATE :
13TH AUGUST
, 2012.
Citation;
By this appeal the appellant challenges the judgment passed
by the Family Court, Nagpur on 02.07.2008 in Hindu Marriage Petition
No.A324/2006, granting a decree of divorce in favour of the respondent
husband, thereby dissolving the marriage between the appellantwife and
the respondenthusband.
2.
Few facts giving rise to the appeal are stated thus :
A petition was filed by the respondent under Section 10 r/w
Section 13 of the Hindu Marriage Act, 1955 for judicial separation or for
grant of divorce. It was pleaded by the respondent that he was a qualified
engineer working in a Public Sector Undertaking since 14 years. The
respondent was married to the appellant on 25.05.2001 at S.C.Z.C.C.
Lawns, Nagpur and the marriage was solemnized as per the rites and
customs in Buddhists Community. After the solemnization of the marriage
the respondent started residing with the petitioner. It is stated in the
petition that within a few days of the marriage, the appellant started
quarreling with the respondent without any reasonable cause and on
flimsy grounds. The first quarrel took place only 15 days of the
solemnization of the marriage. It is stated that the parties could not go for
honeymoon as the appellant had an injury to her leg and was being
treated for the same. While they were in New Delhi for a short period
from 20.08.2001 to 02.09.2001, the appellant remained aloof and did not
show any interest in the respondent. It appeared to the respondent that
the appellant was not happy with the marriage and had not married the
respondent with free will.
3.
It is pleaded that after the solemnization of the marriage,
the appellant conceived but was advised by the doctors to abort the
foetus as at the relevant time the appellant was taking steroids for curing
her other ailments, like the leg injury. However, the appellant declined to
abort the foetus and created a scene. On the said issue, the appellant's
father also abused the respondent and insulted him. At the relevant time
when the tests were conducted on the appellant, the respondent became
aware that the appellant was a patient of Sickle Cell Trait, a genetic
disorder. Since such a disorder, as per the opinion of the medical experts
could be transmitted to the progeny, according to the respondent, it was
necessary for the appellant and all her family members to have disclosed
about the disorder to the respondent. However, the said fact was
concealed from the respondent. It is pleaded that the appellant quarrelled
with the respondent and his parents almost every fortnight on petty
grounds and without any valid reasons. The respondent was required to
remain away from home continuously for a period of 14 days at the sites
on which he was working and whenever the respondent used to come to
Nagpur, he was welcomed with quarrels and complaints. The respondent
stated that the appellant was nonoperative, quarrelsome, short tempered
and self centered. It is pleaded that an amount of Rs.15,000/ was paid to
the father of the appellant at the time of marriage just to give him a
helping hand. Though the respondent had not asked for dowry and had
equally spent for the marriage ceremony, the appellant levelled false
allegations that the respondent and his parents had demanded dowry. It
is pleaded that the appellant threatened to initiate proceedings against
the respondent under Section 498A of the Indian Penal Code on false
allegations of illtreatment and harassment by the respondent, his parents
and sisters.
4.
It was pleaded that the appellant had a habit of frequently
leaving the matrimonial home and the company of the respondent
without formally intimating the respondent and behind his back. The
appellant used to stay at her parents' residence for days together and this
caused great inconvenience to the respondent and his family members
including his daughter. In January, 2005 the appellant during a quarrel
between the parties threatened to commit suicide and falsely implicate
the respondent and his family members. Similarly in November, 2004
when the appellant, respondent and his family members attended the
premarriage ceremony of the respondent's cousin, the appellant
quarrelled with the mother of the respondent for no reason and when the
respondent tried to pacify her, the appellant started shouting and created
a scene. The appellant thereafter called her father on the very next day to
her matrimonial home and the father of the appellant along with the
brother of the appellant came to the residence of the respondent and the
father of the appellant threatened the respondent that he would implicate
the respondent and his family members in a criminal case under Section
498A of the Indian Penal Code. In the aforesaid background, the
respondent sought a decree of judicial separation or a decree of divorce
under Section 13 of the Hindu Marriage Act, 1955 on the ground of
cruelty.
5.
The appellant filed the written statement and denied the
claim of the respondent. It was denied that the respondent started
quarrelling with the appellant within a few days of the solemnization of
the marriage. Some of the allegations made by the respondent were not
specifically denied and it was stated that the contents of paragraph nos.2
and 3 of the petition were denied being imaginary. Instead of denying the
pleadings of the respondent in regard to advice of the Doctor for aborting
the child as the appellant was treated with steroids, no specific denials
found place in paragraph no.4 of the written statement. It was stated in
the written statement that the allegations against the appellant in regard
to Sickle Cell Trait, a genetic disorder were the creation of the
respondent. The appellant pleaded that the respondent be put to strict
proof of the same. It was also stated that it would be necessary to decide
as to how the respondent could brand the appellant as a patient of Sickle
Cell Trait. It was stated that it was funny to state that the respondent had
paid an amount of Rs.15,000/ to the father of the appellant during the
marriage for giving him a helping hand. It was denied that the appellant
was in the habit of frequently leaving the matrimonial home and the
company of the respondent without intimating the respondent and behind
his back. It was pleaded that in the Buddhists Community a parental love
of a lady i.e. the appellant also exists even after the marriage and no lady
can afford to break ties and show disaffection towards her parents after
her marriage. It was stated that merely because the appellant was married
to the respondent it could not be said that the appellant should forget her
past life and her parents and should start thinking and liking the
respondent and his parents only. It was stated that the plea of the
respondent that the appellant threatened him that she would commit
suicide was imaginary. The allegations in respect of behaviour of the
appellant at the premarriage function of the cousin of the respondent in
November, 2004 were somewhat denied. Though the respondent has
stated that during the sickness of his daughter and her treatment at the
hospital of Dr. Radke the appellant had not gone to see her daughter, the
said fact was not denied and it is merely stated in the written statement
that it was a matter of record.
6.
The appellant vaguely denied the other pleadings of the
respondent in the Hindu Marriage Petition. It was stated by the appellant
in the written statement on oath that though both the parties were
qualified, literate and from well to do families, within a short period of
five years, the family of the respondent had made the life of the appellant
very miserable and had compelled her to leave her matrimonial home. It
was stated that the respondent is a great snob and has no respect for his
wife and his inlaws. It was also pleaded in the written statement that the
appellant was ready and willing to lead the marital life in the company of
the respondent provided he arranged for a separate residence and live
On the aforesaid pleadings of the parties, the Family Court
7.
separately and away from his parents.
framed the issues and after considering the evidence tendered by the
parties, by the judgment dated 02.07.2008, allowed the Hindu Marriage
Petition and granted a decree of divorce in favour of the respondent. The
appellant has challenged the judgment by the present appeal.
8.
Shri Agasti, the learned counsel for the appellant, submitted
that the Family Court committed a great error in allowing the Hindu
Marriage Petition for grant of decree of divorce on the basis of the scanty
evidence on record. The counsel for the appellant submitted that the
evidence of the respondent on the issue of cruelty was not corroborated
and, hence, the Family Court ought to have discarded the same. The
counsel for the appellant submitted that the evidence tendered on record
shows that the appellant had not treated the respondent with cruelty and
the respondent desired to seek a divorce only because he became aware
that the appellant suffered from Sickle Cell Trait. It is submitted that Dr.
Deshmukh had clearly admitted in the crossexamination that if one of
the parents does not suffer from the Sickle Cell Disease, it is not possible
that the child should have the disease. By taking this Court through the
evidence tendered by the parties, it is submitted on behalf of the
appellant that no ground has been made out for grant of a decree of
divorce on the ground of cruelty and this is a case where, as a result of
normal wear and tear, minor bickering took place between the parties.
The learned counsel for the appellant relied on the judgments reported in
AIR 2004 Calcutta 161 (Smt.Arunima Bhattacharjee Versus Shayama
Prosad Bhattacharjee), AIR 2009 SC 589 (Suman Kapur Versus Sudhir
Kapur) and AIR 1975 SC 1534 (Dr.N.G. Dastane Versus Mrs. S. Dastane)
to substantiate his submission that the respondent was not entitled to the
grant of decree of divorce on the basis of the evidence tendered by him.
9.
Shri Bhutada, the learned counsel for the respondent,
supported the judgment of the Family Court and submitted that the
appellant was a very quarrelsome lady, who continuously quarrelled with
the respondent and his family members. According to the learned
counsel, there was ample evidence on record and it was also pleaded by
the appellant in the written statement that she had a great desire to live
separately with the respondent and away from his parents. This request
on the part of the appellant, according to the learned counsel, was
without a just cause. It is submitted that the Family Court had rightly
considered the incident in the month of January2005, when the
appellant threatened to commit suicide. It is submitted that the appellant
had an extremely bad habit of leaving the matrimonial home without
informing either the respondent or his family members and that caused
the respondent and his family members not only great inconvenience but,
it was also a matter of worry. According to the learned counsel, the
respondent had clearly proved the threats of the appellant of committing
suicide or of filing complaints against the respondent and his family
members under Section 498A of the Penal Code. In such a scenario,
according to the learned counsel, it was not possible to lead a harmonious
marital life with the appellant. It is submitted that the appellant was
combative in the written statement as she stuck to her false allegations in
regard to illtreatment and dowry though the respondent had monetarily
helped the father of the appellant for the marriage expenses with a view
to lend him a helping hand. It is submitted that the false allegations
made in the evidence in regard to the demand of dowry would also
tantamount to cruelty if the demands are not proved. The learned
counsel for the respondent relied on the judgments reported in 1987
Mh.L.J. 160 (Jaishree Mohan Otavnekar Versus Mohan Govind
Otavnekar), I(2009) DMC 765(DB) (Vandhana Gupta Versus Rajesh
Bhattar Sri Devi) to substantiate his submission.
10.
Gupta) and AIR 2002 SC 88 (Adhyatma Bhattar Alwar Versus Adhyatma
On hearing the learned counsel for the parties and on
perusal of the Record & Proceedings, it appears that the following points
arise for determination in this first appeal.
I) Whether the Family Court was justified in granting a
decree of divorce on the ground of cruelty ?
II) What order ?
To answer the points of determination, it would be
11.
necessary to peruse the Record & Proceedings. The respondent had
tendered the evidence on affidavit and reiterated the pleadings as regards
cruelty in the Hindu Marriage Petition. It was stated that the appellant
quarrelled with the respondent without any reason or cause. It was
stated that though the appellant was a patient of Sickle Cell Trait, a
genetic disorder, the appellant and her parents did not disclose about the
same to the respondent and his family members prior to the
solemnization of the marriage. It was stated that the appellant had
deliberately and intentionally suppressed the fact about the Sickle Cell
Trait. It was stated that the appellant quarrelled with the respondent
almost every fortnight on petty grounds and without valid reasons.
Whenever he returned from long duty of fourteen days, the appellant
welcomed the respondent with quarrels and complaints. It is stated that
the appellant was not cooperative, was short tampered and was extremely
selfcentred. Her attitude was bad not only towards the respondent but,
even towards their daughter Kunjal. It was stated that he never
demanded dowry from the appellant and in fact helped the father of the
appellant by paying an amount of Rs.15,000/ during the solemnization
of the marriage. It was stated that the appellant had a habit of frequently
leaving the matrimonial home without intimating the respondent or his
family members. The appellant used to stay at her parents' residence for
days together and this caused great inconvenience to the respondent and
their daughter. By referring to the dates and incidents, it was also stated
that after quarrelling with the respondent, the appellant used to threaten
the respondent of falsely implicating him in criminal complaints. After
quarrels, she also threatened to commit suicide. The incident of May
2005 was reiterated in the evidence on affidavit. The respondent was
crossexamined at length. In the crossexamination, the respondent
stated that during the stay of the appellant in the hospital for treatment of
gangrene to her leg, the appellant used to insult the respondent and
refused to eat the food carried by the respondent to the hospital, for the
appellant. It was stated in the crossexamination that the appellant used
to eat food from the hospital when the respondent carried homemade
food for the appellant, to the hospital. We are surprised as to why such
questions which strengthened the case of the respondent were posed to
him in his crossexamination. It was denied by the respondent that the
appellant had not harassed the respondent and his parents. He denied
the suggestion that the appellant never suffered from Sickle Cell Trait. He
also denied the suggestion that in his absence his parents and his sister
used to suspect about the character of the appellant and used to harass
her for less dowry. The respondent reiterated in the crossexamination
that both the parties had incurred half expenditure of the marriage but,
the respondent had paid a sum of Rs.15,000/ to the appellant's father.
He denied the suggestion that his parents and himself made a demand of
Rs.5,00,000/ to the appellant. He also denied the suggestion that on the
dates mentioned, there was no quarrel between the parties and that the
appellant had not threatened to commit suicide. It was also denied that
the appellant or her parents never threatened the respondent that he
could be implicated in a criminal case under Section 498A of the Indian
Penal Code. The respondent examined Dr.Sushama Deshmukh, a Medical
Practitioner, who deposed that the appellant was suffering from Sickle
Cell Trait. Nothing was brought out from the evidence of this witness to
falsify her evidence in examinationinchief. The respondent then
examined Dr. Sindhu Bhute, a Medical Practitioner, who deposed that
since the appellant was taking some steroids, for curing the skin
disease, she had advised for termination of pregnancy and to stop
taking drugs. She stated in her crossexamination that she gave the
aforesaid advice to the appellant after studying the history of the
appellant and after the appellant told her that she was taking steroids
for curing the said ailment. Dr.Gopalkrishna Sawal, the Medical
12.
Practitioner, was also examined and he deposed that the appellant was suffering from Sickle Cell Trait.
The appellant also filed evidence on affidavit and
stated that the attitude of the respondent towards her was not proper.
It was stated that she was prevented from mixing with the neighbours
and was not permitted to use the telephone. It was stated that the
respondent was bent upon terminating the pregnancy against the
wishes of the appellant. It was also stated by the appellant that the
respondent and his family members were greedy people and they along
with the sister of the respondent demanded dowry of Rupees Five
Lacs from the appellant. It was stated in the evidence on affidavit
that they started harassing the appellant after that demand was not
fulfilled. The appellant, however, admitted in the crossexamination
that she had not complained in police station about the demand by the
respondent and his family members of an amount of Rupees Five Lacs.
She admitted in the crossexamination that she had put forth
a condition that the respondent should reside separately from his
parents. She admitted that the respondent was not ready to leave his
parents and was not ready to cohabit with the appellant separately.
She further admitted in the crossexamination that the father of the
respondent was a retired person and the mother of the respondent
was also a senior citizen. She admitted that the respondent is the
only son of his parents. Though she stated that she was not ready to
reside with the parents of the respondent as they harass her, she
admitted that she had not complained about the harassment by the
family members of the respondent to police authorities. The appellant
admitted that though her daughter Kunjal was away from her for more
than three years and was residing with the respondent, she had not
filed any proceedings against the respondent for the custody of the
daughter. She further admitted that she had not filed any petition in the
Court in order to secure access to the child. She then admitted that the
respondent had four sisters and all the sisters were married at the time of
solemnization of their marriage. She stated in the crossexamination that
the respondent used to suspect her character and stopped speaking with
her but, she had not mentioned about this fact either in the notice or in
the written statement. She stated that she was ready to stay with the
respondent.
On a consideration of the aforesaid evidence, the Family
13.
Judgment
Court found that this was a case where the appellant had treated
the respondent with cruelty. The Family Court found that the
respondent had proved that the appellant was continuously quarrelling
with the respondent just fifteen days from the solemnization of the
marriage and was threatening the respondent that she would commit
suicide and falsely implicate the respondent in a criminal case. In
regard to the specific instance of January2005 and May2005, there
was hardly any crossexamination of the respondent by the appellant.
The Family Court, therefore, held that the respondent had proved that
the appellant did not only have the habit of quarrelling with the
respondent and his family members but, also of threatening the
respondent with dire consequences. The Family Court found that the
allegations of the appellant in regard to the demand of dowry by the
respondent and his family members were not proved by the appellant.
The Family Court held, and rightly so, that there was hardly any
evidence on record to show that the respondent had demanded an
amount of Rupees Five Lacs from the father of the appellant and since
the demand was not fulfilled, the appellant was driven out of the
matrimonial home. The Family Court held that the allegations in
regard to the demand of dowry were imaginary. The Family Court
further held, by considering the evidence of the Medical Practitioners
that the appellant was suffering from Sickle Cell Trait though she had
denied the said fact in the written statement. The Family Court held
that the fact that the appellant was suffering from Sickle Cell Trait was
not disclosed to the respondent or his family members before the
solemnization of the marriage. On an appreciation of the evidence on
record, the Family Court rightly found that the appellant always picked up
quarrels with the respondent on petty issues and insulted and threatened
him. According to the Family Court, the respondent could not have lived
happily with the appellant, specially when he suffered the threats of
suicide and lodging of criminal complaints, specially under the provisions
of Section 498A of the Penal Code. The Family Court found that the
behaviour of the appellant did not change though the respondent granted
her enough time to mend her ways.
14.
Apart from the aforesaid facts, which according to the
Family Court are proved, we find that the appellant was making
unreasonable demand of living separately and away from the parents
of the respondent though the respondent was the only son to his
parents and his parents were old. The appellant had failed to prove
that the parents of the respondent were illtreating her. There was no
complaint of harassment made by the appellant to the police
authorities or to anybody. If a wife makes an unreasonable demand
of living separately from the inlaws without any just and sufficient
cause, specially in a case where the husband is the only son of his parents,
the same may tantamount to cruelty. The judgment reported in AIR 2002
SC 88 (Adhyatma Bhattar Alwar Versus Adhytma Bhattar Sri Devi) and
relied on by the counsel for the appellant can be made applicable to the
We have noticed on a perusal of the pleadings that though
15.
case in hand.
the respondent had specifically pleaded about the acts of cruelty by the
appellant, the appellant had vaguely denied the same in the written
statement. The pleadings in the Hindu Marriage Petition are not
specifically denied and there is an evasive reply to the pleadings. The
pleadings in the written statement are philosophical. Some of the
material allegations in the Hindu Marriage Petition are not denied at all.
Without any specific pleadings of demand of dowry by the respondent in
the written statement, the respondent was confronted with the
suggestions in regard to the demand of dowry of Rupees Five Lacs in his
crossexamination. The false and unsubstantiated charges against the
respondent in regard to the demand of dowry would amount to cruelty. It
has been held by this Court that serious unsubstantiated allegations
would amount to cruelty. It would be necessary to refer to the judgment
reported in 1987 Mh.L.J. 160 (Jaishree Mohan Otavnekar Versus Mohan
Govind Otavnekar), 2005(1) Bom.C.R. 554 (Manisha Sandeep Gade
Versus Sandeep Vinayak Gade) and III(2011)DMC 539 (DB) (Ramesh
Laxman Sonawane Versus Meenaxi Ramesh Sonawane) in this regard. In
the instant case, we have also found that the respondenthusband has
proved that the appellantwife was leaving the matrimonial home without
informing the respondent or his family members and this had not only
caused inconvenience to the respondent, their daughter and the family
members of the respondent but, was also a matter of concern. We find,
on a reading of the evidence of the respondent, that there was hardly any
crossexamination of the respondent on the material facts and the
respondenthusband was crossexamined by the appellant in respect of
some allegations only. There is no straitjacket formula to decide as to
what conduct would tantamount to cruelty. Whether one of the parties
has treated the other with cruelty has to be decided on the basis of the
facts of that case. Cruelty differs from case to case. In the instant case,
on an appreciation of the evidence on record, we find that the Family
Court rightly came to a conclusion that the appellant had treated the
respondent with cruelty. The submission made on behalf of the appellant,
that the uncorroborated evidence of the respondent ought not have been
believed, is liable to be rejected as there is no rule that divorce cannot be
granted on the evidence of the party alone. The evidence of the
respondent was found to be trustworthy and believable as compared to
that of the appellant. The same was weighed by the Family Court and
this Court. Moreover, certain Medical Practitioners were also examined
by the respondent to prove his case. The case of the appellant that the
respondent is trying to get rid of the appellant only because she suffers
from Sickle Cell Trait cannot be accepted on an overall view of the
evidence on record. This is not a case of normal wear and tear in life.
The judgment reported in AIR 1975 SC 1534 (Dr.N.G. Dastane Versus
ig
Mrs. S.Dastane) and relied on by the counsel for the appellant, in fact
supports the case of the respondent and not the appellant. The burden of
proving cruelty no doubt lies on the respondent and the respondent had
proved his case by discharging the burden. So also, the judgment
reported in AIR 2009 SC 559 (Suman Kapur Versus Sudhir Kapur) does
not apply to the facts of the case. Paragraph 34 of the judgment on which
reliance is placed by the appellant merely provides the guidelines to be
considered while considering a claim for divorce on the ground of
cruelty. The judgment reported in AIR 2004 Calcutta 161
(Smt.Arunima Bhattacharjee Versus Shayama Prosad Bhattacharjee) and
relied on by the counsel for the appellant is distinguishable on facts.
On an appreciation of the evidence on record, it appears that the
Family Court, Nagpur had rightly granted a decree of divorce in favour
of the respondent on the ground that he had proved that the appellant
had treated him with cruelty.
For the reasons aforesaid, the first appeal is dismissed with
16.
no order as to costs.
No comments:
Post a Comment