husband examined himself in support of their respective
allegations and counter allegations. Wife was cross
examined at length. In paragraph 10 of her examination in
chief it is stated by wife that due to tremendous mental and
physical stress she called her mother to reside with her for
some time. She states that in the month of August, 2012
she was late to return home from work place. Respondent
started abusing her saying that she was characterless and
having some affair. When her mother intervened he also
abused her mother in a third grade language. She then
states that her husband abused her physically by giving fist
blows on her face. She stated that thereafter it was the
habit of her husband to abuse her physically. She was
beaten with slaps and fists. On one occasion Police was
called and understanding was given to respondent that
strict action would be taken if he abuses his wife physically.
19] With the assistance of the learned Counsel for the
parties we have gone through the entire evidence of wife
and it can be seen that on these serious allegations
deposed by wife in paragraph 10 of her deposition
absolutely there is no cross examination. Those allegations
are therefore uncontroverted and in the absence of cross
examination they are required to be taken as proved.
20] It is apparent that learned Judge has not appreciated
the evidence of wife in proper perspective keeping in view
that certain important facts and serious allegations levelled
by her were not at all controverted by the husband leading
to the ultimate result that those facts which found place in
the pleadings and deposed in evidence were duly proved.
Even in the evidence of respondent we find that there is no
specific denial to the allegations levelled by wife in
paragraph 10 of her pleadings and evidence. Thus on the
basis of evidence on record it is clear that conduct of the
husband in suspecting the character of wife, physically
assaulting and harassing her as she was coming home late
from work place due to the nature of her job are the facts
duly established amounting to cruelty and wife is entitled to
a decree of divorce on the ground of cruelty.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Family Court Appeal No.33 of 2016
Smt. Vibha w/o Arun Goswami,
V
Arun s/o Narayan Goswami,
Coram : Smt. Vasanti A Naik &
Kum. Indira Jain, JJ.
Dated : 14th September, 2016.
2] Heard finally with the consent of the learned Counsel
for the parties as record and proceedings are received.
3] By this appeal appellant/wife challenges the judgment
of the Family Court, Amravati dated 30122015 dismissing
the petition filed by appellant/wife for dissolution of
marriage on the ground of cruelty under Section
13(1)(ia) of the Hindu Marriage Act, 1955.
4] Facts giving rise to the appeal may be stated in brief
as under :
Appellant is wife of respondent (hereinafter appellant
shall be referred as ‘wife’ and respondent shall be referred
as ‘husband’). They got married on 11032000 as per
customary rites. After marriage wife went to Wardha to
cohabit with the husband. The family of husband was
consisting of his father, mother, brother, sisters and two kids
of married sister. It is the case of wife that soon after
marriage she realized that approach of family members
towards her was not good. They used to taunt, disrespect
and harass her. She was an Engineer whereas her
husband was 12th passed. As she was highly educated
members in the family were under the impression that she
feels embarrassment in doing household work. According
to wife though she is a qualified Engineer she has spent
her entire time in taking care of the family members and
further choosing to be a housewife.
5] It is pleaded by the wife that she underwent two
miscarriages and in the third pregnancy delivered a male
child on 26122004. Child is in her custody. After two
miscarriages she had to opt for a job at Wardha as it was
difficult to maintain the family with the meager salary of the
husband. Respondent however went on shifting his job
from place to place and appellant used to accompany him.
She requested respondent to shift to Pune in the interest of
education of child and as Pune being a big city lot of
opportunities would be available to him also. Respondent
refused to shift to Pune. That left with no alternative to the
wife to shift to Pune along with her four year old child at the
house of her brother.
6] In 2009 she could get rented accommodation and
started residing with her child separately. Respondent was
rarely visiting Pune to meet his wife and child. She could
secure job at Pune and settled there. A flat was purchased
by her in 2010 in the joint name of her husband and
herself. Respondent did not share a single pie towards
installments. Thereafter respondent all of a sudden shifted
to Pune and spent months together without doing any work.
On the insistence of wife he started Laptop Service Center
in the year 2011 at home. He did not pay attention and so
business went in loss. Respondent used to remain at home
without any work and started raising quarrels with the wife
on trivial issues for no reasons. She was being abused as
she was educated and was doing a job.
7] In July, 2011 wife could get a job of Senior System
Manager in I.B.M. Company and her responsibilities
increased as she was required to work in a shift from
01.30 pm to 10.30 pm. Respondent started suspecting
character of wife as she was required to remain at the work
place till late in the night. He used to abuse her in filthy
language saying that she is a characterless lady having
relations with many persons and coming late in the house.
Due to tremendous mental and physical stress wife was
required to call her mother to stay with her for some time.
8] In August, 2012 wife came late at home from the
office. Husband started abusing her in filthy language
saying that she is characterless and having affair. On
intervention of her mother respondent abused her mother
too in filthy language and assaulted wife by giving fist blows
on her face.
9] Thereafter on 10032013 respondent raised quarrel
with his wife on the ground that she should not visit her
parents at Amravati. He became violent and threw a
Laptop of her. He pushed her to the ground & delivered
kick blows. She was locked in a room by the husband.
Incident was witnessed by eight year old son who suffered
tremendous mental shock and was frightened. She could
manage to call her brother and mother from Amravati on
11032013. Her brother and mother reached Pune and
directly went to Police Station. She was called by her
brother on phone and anyhow she could manage to escape
from the house and reached the Police Station.
Respondent was called at the Police Station. With the help
of mediators dispute was resolved in the interest of child
and wife came to Amravati on the same day along with the
child as it was impossible for her to continue to live with her
husband.
10] According to wife respondent is suffering from
inferiority complex and due to constant illtreatment it is not
possible for her to pull on in the company of her husband.
She states that for 13 years she was tolerating the
extrinsic behaviour of her husband but when cruelty went
beyond tolerance she had no option but to file a petition for
divorce on the ground of cruelty.
11] Respondent/husband filed his reply and resisted the
petition for divorce. The factum of marriage, educational
qualification of husband and wife, birth of child are the
facts not in dispute. On alleged cruelty, harassment and
torture defence of husband is of total denial. He stated that
on 10032013 wife wanted to go to Amravati but he
requested her not to go as child would loose his school
and tuition classes. On the trifle issue she called her
mother and brother at Pune who straightway went to Police
Station and threatened him that if he refuses his wife to
act according to her wish she would commit suicide and put
him in jail. He states that access to child was denied to
him. At Amravati she filed a petition for divorce under
Section 13B of the Hindu Marriage Act. The said petition
was signed by him on the condition that she would allow
him to meet the child. As access to child was denied he
refused for divorce by mutual consent. On 07102013 he
sent a legal notice and thereafter received a notice from
wife under the Protection of Women from Domestic
Violence Act, 2005.
12] Respondent then states that after two years of
marriage he got a job at Lloyd Steel, Wardha and tried to
get the job for his wife in the same Company. After getting
the job at Wardha she became more ambitious and
secured job at Chennai. It was difficult for her to take
care of child at Chennai and so he accompanied her to
Chennai to look after the child. Thereafter she was
transferred to Pune and started residing with the child and
her parents. Respondent came back to Wardha for
service purpose. He stated that his wife was highly
educated and was treated with utmost respect in the family.
Though he was serving at Wardha he used to visit Pune to
meet his wife and child. She was earning Rs. 1 Lakh per
month and asked him to leave job at Wardha. At her
instance he shifted to Pune and started computer repairing
work. When he shifted to Pune he carried his savings of
Rs.7,50,000/ which was spent by him for purchasing a flat.
It is alleged that wife used to insult and abuse him as he
was not so educated and he had to tolerate the illtreatment
for a long. She on her own severed the matrimonial
relations since 2011. It is the contention of husband
that wife cannot take advantage of her own wrong
and she is not entitled for a decree of divorce.
13] On the aforesaid pleadings of the parties Family
Court framed the issues. Parties adduced evidence in
support of their respective cases. Wife examined herself
and reiterated the facts pleaded in the petition. Husband
too entered the witness box and supported his defence.
14] On appreciation of the evidence of parties Family
Court came to the conclusion that wife could not prove that
husband treated her with cruelty and refused to grant a
decree of divorce in favour of wife. It appears from the
reasons recorded by the Family Court that conduct of
respondent was not of such a nature and gravity so as to
cause reasonable apprehension in the mind of wife that it
will be harmful or injurious to her to live with the husband.
Family Court was of the view that evidence on record was
not sufficient to substantiate the allegations of cruelty. It
was also observed that corroborative evidence was lacking.
Wife had exaggerated her case in the course of evidence
and so the Court found that sole reliance on the testimony
of wife could not be placed. This judgment of Family Court
is under challenge in this appeal.
15] Shri Rahul Dharmadhikari, learned Counsel for
appellant submitted that Family Court was not justified in
refusing to grant decree of divorce on the ground of cruelty
particularly when there is uncontroverted evidence of the
wife clearly indicating that husband used to raise
suspicion on character of wife as she was coming home
late from her work place. Learned Counsel submits that
evidence of wife in paragraph 10 of her examination in chief
has remained unshaken as absolutely there is no cross
examination on the serious allegations made by wife
against the husband. It is stated that evidence of wife has
not been properly and legally appreciated as a result of
which perverse findings have been recorded refusing to
grant a decree of divorce.
16] Ms. Khisti, learned Counsel for respondent supported
the impugned judgment and submitted that Family Court
was justified in dismissing the petition for divorce as there
was no sufficient evidence to prove cruelty at the hands of
husband. Learned Counsel submits that appellant made
exaggerations in her evidence and so Family Court was
absolutely right in insisting for corroboration. Learned
Counsel prays for dismissal of appeal with costs.
17] On considering the pleadings of parties, evidence on
record and submissions made by the learned Counsel for
parties following points would arise for determination in this
appeal :
1] Whether the Family Court could have
dismissed the petition filed by wife for
decree of divorce under Section
13(1)(ia) of the Hindu Marriage Act?
2] Whether wife is entitled to a decree of
divorce on the ground of cruelty?
18] As indicated above wife examined herself and
husband examined himself in support of their respective
allegations and counter allegations. Wife was cross
examined at length. In paragraph 10 of her examination in
chief it is stated by wife that due to tremendous mental and
physical stress she called her mother to reside with her for
some time. She states that in the month of August, 2012
she was late to return home from work place. Respondent
started abusing her saying that she was characterless and
having some affair. When her mother intervened he also
abused her mother in a third grade language. She then
states that her husband abused her physically by giving fist
blows on her face. She stated that thereafter it was the
habit of her husband to abuse her physically. She was
beaten with slaps and fists. On one occasion Police was
called and understanding was given to respondent that
strict action would be taken if he abuses his wife physically.
19] With the assistance of the learned Counsel for the
parties we have gone through the entire evidence of wife
and it can be seen that on these serious allegations
deposed by wife in paragraph 10 of her deposition
absolutely there is no cross examination. Those allegations
are therefore uncontroverted and in the absence of cross
examination they are required to be taken as proved.
20] It is apparent that learned Judge has not appreciated
the evidence of wife in proper perspective keeping in view
that certain important facts and serious allegations levelled
by her were not at all controverted by the husband leading
to the ultimate result that those facts which found place in
the pleadings and deposed in evidence were duly proved.
Even in the evidence of respondent we find that there is no
specific denial to the allegations levelled by wife in
paragraph 10 of her pleadings and evidence. Thus on the
basis of evidence on record it is clear that conduct of the
husband in suspecting the character of wife, physically
assaulting and harassing her as she was coming home late
from work place due to the nature of her job are the facts
duly established amounting to cruelty and wife is entitled to
a decree of divorce on the ground of cruelty.
21] In her further evidence wife tried to point out that on
one occasion her husband assaulted her and she received
an injury to her right eye. She was referred to eye
surgeon and permanent damage to her right eye was
caused. We find that in petition no such pleadings are
raised by the wife regarding injury to her right eye in an
assault by husband. So safer course in such a case would
be to keep this part of evidence out of consideration for
want of pleadings.
22] The next significant factor in the case on hand is that
petition for divorce under Section 13B of the Hindu
Marriage Act was filed by the husband and wife before the
Court at Amravati but according to husband as access to
child was denied he refused for divorce by mutual consent.
This fact indicates that respondent accepted that marriage
cannot be saved and no purpose will be served in
continuing the marriage. It is not the case of husband that
his signature on petition under Section 13B of the Hindu
Marriage Act was obtained by force, fraud or coercion. He
voluntarily agreed to obtain a decree of divorce by mutual
consent. The learned Judge of the Family Court has not
adverted to this aspect.
23] On careful scrutiny of the material placed on record
we find that findings recorded by the Family Court are not in
consonance with the evidence adduced by the parties and
the learned Judge has also lost the sight of the most
important facts elicited in the cross examination of
husband. In this premise findings recorded by the Family
Court are found to be perverse and need interference in
this appeal. Hence we pass the following order.
24] Appeal is allowed. The marriage between
appellant/wife and respondent/husband stands dissolved by
a decree of divorce under Section 13(1)(ia) of the Hindu
Marriage Act. In the circumstances no costs.
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