The learned Judge of the Family Court has considered these
unsubstantiated allegations and has proceeded to hold that this conduct of
the husband caused mental cruelty to the wife. We find in the facts of the
present case that the learned Judge of the Family Court was justified in
recording this conclusion. In K Srinivas Rao Vs. D. A. Deepa
2013(5)Mh.L.J.10 it has been observed in paragraph 14 by the Hon’ble
Supreme Court as under :
“14… Making unfounded indecent defamatory allegations
against the spouse of his or her relatives in the pleadings,
filing of complaints of issuing notices or news items which
may have adverse impact on the business prospect or the
job of the spouse and filing repeated false complaints and
cases in the Court against the spouse would, in the facts of
a case, amount to causing mental cruelty to the other
spouse.”
It thus becomes clear that making of unfounded allegations
against the spouse or his/her relatives in the pleadings or making
complaints with a view to affect the job of the spouse amounts to causing
mental cruelty to the said spouse.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO.70 OF 2015
Thalraj @ Anand s/o Jaisingh Khinchi Vs Sau. Jyoti w/o Thalraj @ Anand Khinchi,
CORAM : A. S. CHANDURKAR AND PUSHPA V. GANEDIWALA, JJ.
DATED : 10th February, 2021.
Judgment : (Per A.S.Chandurkar, J.)
This appeal filed under Section 19 of the Family Courts Act,
1984 by the husband takes exception to the decree for divorce passed by
the Family Court, Nagpur in Petition No. A-459/2012 on 25.09.2014.
2. The facts in brief are that the appellant and the respondent
were married on 27.04.2008. Out of the said wedlock a child was born on
03.03.2009. Thereafter the appellant and his family members started ill-treating the respondent. During Diwali-2010, the family members of the
appellant quarreled with the respondent and after taking away all the gold
articles she was driven away from the matrimonial house. On 06.12.2010
she filed proceedings under Section 9 of the Hindu Marriage Act, 1955 for
restitution of conjugal rights. These proceedings however were withdrawn
on 25.04.2012. Thereafter on 14.05.2012 the wife filed Petition No.A-
459/2012 seeking a divorce on the grounds of cruelty and desertion. In
the said proceedings it was alleged that the appellant and his family
members were ill-treating the respondent physically as well as mentally.
The respondent used to be abused time and again by the appellant and his
family members as a result of which there were frequent quarrels between
them and the respondent was also beaten on some occasions. She was
required to do all the household work and other family members did not
help her in that work. The respondent was required to approach Mahila
Cell with her grievances and after understanding given to both the parties,
they started residing together. However this arrangement did not
continue for long. The respondent after finding it unsafe to continue the
relationship filed the present proceedings.
3. In the written statement filed by the appellant the allegations
as made were denied. It was denied that there was any occasion to
appear before the Mahila Cell and give any undertaking as pleaded by the respondent. It was also pleaded that the appellant’s sister was residing on
the ground floor and the allegations made against her about ill-treating
the respondent were denied. In the specific pleading it was stated that the
respondent and her family members belonged to ‘Rajput’ caste but they
had obtained spurious caste certificate of belonging to ‘Rajput Bhamta’ for
securing employment.
4. The parties led evidence before the Family Court and after
considering the same the learned Judge of the Family Court held that the
respondent had proved that the appellant was treating with her cruelty. It
was further held that the allegation of desertion was not proved since
continuous period of not less than two years prior to filing of the divorce
petition had not elapsed. Hence by the impugned judgment, the Family
Court proceeded to pass a decree for divorce on the ground of cruelty.
Being aggrieved the appellant has preferred this appeal.
5. Shri P.K.Mishra, learned counsel for the appellant submitted
that the allegations with regard to cruelty being inflicted by the appellant
were not duly proved by the respondent. He referred to the evidence on
record to contend that except normal wear and tear of marital life there
was no substantial evidence brought on record by the respondent to prove
the ground of cruelty. The appellant’s sister was not residing with the
appellant but was residing separately on the ground floor premises of the joint family. There was no truth in the allegation that the appellant’s
sister was interfering in the marital life of the appellant and was illtreating
the respondent. He further stated that the appellant’s brothers
were also residing separately. In fact it was the respondent who had left
the matrimonial house on 06.11.2010 and was not ready to reside with
the appellant. Though it was the fact that the parties had approached the
Mahila Cell, same indicated that the appellant did not intend to separate
from the respondent but wanted to continue the marital ties. It was then
submitted that the appellant had brought on record sufficient evidence to
indicate that the respondent was suffering from epilepsy and this fact was
not disclosed by the family members of the respondent to the family of the
appellant before their marriage. Documentary evidence in that regard
was also placed on record. According to the learned counsel, it was not
open for the learned Judge of the Family Court to give importance to the
allegation made by the appellant with regard to the family members of the
respondent obtaining false caste certificate. Various complaints were
made by the appellant because he was a social worker and this fact could
not be taken into consideration for passing a decree of divorce. It was thus
submitted that the burden to prove cruelty was on the respondent but
without the same being established by the respondent the Family Court
proceeded to grant a decree for divorce. He placed reliance on the
decisions in Uttara Praveen Thool Vs. Praveen 2014 (2) Mh L J 321 and
J Vs. JC 2020 (2) ALL MR (Journal) to submit that the impugned
judgment of the Family Court was liable to be set aside.
6. Per contra, Shri A.B.Bambal, learned counsel for the
respondent supported the impugned judgment. According to the learned
counsel, the Family Court rightly held that the conduct of the appellant
was such that the same resulted in causing cruelty to the respondent.
Besides trying to physically cause hurt to the respondent, the conduct of
the appellant also resulted in mental cruelty. He referred to the written
statement filed by the appellant and submitted that there were no
pleadings therein that the respondent suffered from epilepsy. This aspect
was deposed by the appellant only during the course of his evidence.
Similarly the allegations that the respondent and her family members
belonged to ‘Rajput’ community but obtained false caste certificate of
belonging to ‘Rajput Bhamta’ community to secure employment was not
proved. Making of unsubstantiated false allegations resulted in causing
mental cruelty to the respondent. These aspects were rightly taken into
consideration by the learned Judge of the Family Court and hence it was
submitted that there was no reason to interfere with the impugned
judgment.
7. We have heard the learned counsel for the parties at length and
with their assistance we have perused the records of the case. The
following point arises for consideration :
Whether in the facts of the case the Family Court was justified
in granting divorce on the ground of cruelty ?
8. Perusal of the pleadings of the respective parties indicate that
it is the case of the wife that the husband and his family members illtreated
the wife on various occasions for no justifiable reason and that in
Diwali-2010 by raising such a quarrel she was beaten and her gold articles
were taken away which resulted in the husband inflicting cruel treatment
on the wife. On the contrary, according to the husband, a defence of
denial was raised besides denying the proceedings before the Mahila Cell.
In addition it was alleged that the wife and her family members had
obtained false caste certificate of belonging to ‘Rajput Bhamta’ for securing
employment. In the evidence led by the parties the wife denied that she
was suffering from epilepsy and in her cross-examination she stated that
she was taking treatment for giddiness prior to her marriage. The learned
Judge of the family Court after considering the evidence on record rightly
found that the deposition of the husband’s sister-Chanda at Exhibit 51 did
not inspire confidence in view of various incorrect statements made by her
in her pleadings. The statements made in her affidavit were subsequently
admitted by her to be incorrect and we find no reason to take a different
view of the matter. Similar observations have been made with regard to
the contradictions in the pleadings of the husband and his deposition.
Further it is an admitted position that both the parties had appeared
before the Mahila Cell wherein the husband had undertaken to behave
properly with the wife after which she joined his company again. Though
the husband denied having given any such undertaking before the Mahila
Cell, in his written statement it was admitted by him in his crossexamination
that he had in fact given such written undertaking. It is also
seen that thereafter from February 2010 to July 2010 the parties had
resided together but the behaviour of the husband with the wife did not
improve. The learned Judge of the Family Court thus found the case of the
wife more probable than that of the husband.
9. It is to be seen that the husband in his affidavit at Exhibit 30
specifically stated in paragraph 7 as under :
“That, prior to my marriage with her, he was treated for
epilepsy disease in the clinic of Dr. Chandrashekhar
Meshram and so also at I.G.M.C. Nagpur and
Government Medical College, Nagpur. I and my family
members were kept in dark about her disease. Had it
been disclosed to me, I would not have consented for
the marriage. Thus the fraud was practiced upon me in
the matter of marriage. I came to know about her
disease on 21.07.2008 when the petitioner was
admitted for delivery of the child in the hospital of
Dr. Kala Sabu.”
Further in his cross-examination in paragraph 18 he stated as under:
“It is true that I have not pleaded in my reply that
petitioner is suffering from epilepsy. It is not true that I
have falsely mentioned in my affidavit that petitioner is
suffering from the epilepsy and she was under the
treatment of Dr.Saboo and Chandrashekhar Meshram.
It is not true that document produced by me are false
and those are not pertaining to the petitioner. It is not
true that I have defamed the petitioner in her relatives
and office colleagues by alleging that she is suffering
from epilepsy.”
It thus becomes clear that in the written statement filed by the
husband there were no pleadings that the wife was suffering from
epilepsy. This was sought to be raised for the first time during the course
of his deposition. In absence of any pleading in this regard by the
husband, there was no occasion for the wife to counter this allegation that
she was suffering from epilepsy. It thus remained an allegation raised for
the first time in evidence but not proved.
10. Further in the written statement filed by the husband in
paragraph 17 it was pleaded as under :
“… The respondent consciously knew that the petitioner is
very much proud of her earning from the job of teacher
which she secured somehow on the basis of spurious caste
certificates of ‘Rajput Bhamta’ obtained from Amravati
although her forefathers were residents of Nagpur and of
Rajput caste but at this crucial moment of his
unemployment she is the host of his survival.”
During the course of his cross-examination the husband sought to justify
this allegation and admitted that he had made various complaints about
the aforesaid at the office where the wife was serving. The following was
stated in his cross-examination :
“17. …. I am having documents to show that petitioner
has secured employment by showing herself as “Bhamta”
although she is ‘Rajput’. I have not produced said
documents on record. It is not true that with a view to
defame the petitioner I have made such statement without
having evidence with me. It is true that I have filed
application with the petitioner’s office for removing her
from service on the ground that she has secured
employment by giving false information. It is not true
that petitioner has not secured employment by showing
herself as “Bhamta” and therefore no action has been
initiated against her on the basis of my
application/complaint. It is true that I have also made
complaint to the petitioner office alleging that she is not
residing at headquarter and therefore appropriate action
be initiated against her.”
It is also seen that the husband placed on record newspaper cuttings on
the list at Exhibit 70 to indicate that he had made various complaints
against the wife to her employer. It is however seen that having made
such allegations, it was necessary for the husband to have substantiated
the same. This was not done by the husband by leading any evidence in
that regard.
11. The learned Judge of the Family Court has considered these
unsubstantiated allegations and has proceeded to hold that this conduct of
the husband caused mental cruelty to the wife. We find in the facts of the
present case that the learned Judge of the Family Court was justified in
recording this conclusion. In K Srinivas Rao Vs. D. A. Deepa
2013(5)Mh.L.J.10 it has been observed in paragraph 14 by the Hon’ble
Supreme Court as under :
“14… Making unfounded indecent defamatory allegations
against the spouse of his or her relatives in the pleadings,
filing of complaints of issuing notices or news items which
may have adverse impact on the business prospect or the
job of the spouse and filing repeated false complaints and
cases in the Court against the spouse would, in the facts of
a case, amount to causing mental cruelty to the other
spouse.”
It thus becomes clear that making of unfounded allegations
against the spouse or his/her relatives in the pleadings or making
complaints with a view to affect the job of the spouse amounts to causing
mental cruelty to the said spouse. This conduct of the husband of not
pleading that the wife was suffering from epilepsy and stating the same
for the first time in his deposition as well as making wild allegations that
the wife and her relatives had secured false caste certificate without
attempting to substantiate the said allegations has resulted in causing
mental cruelty to the wife. If such allegations would have been met in
accordance with law the same could have been made by the wife. There
could have been proper adjudication of these allegations. However it
appears from the conduct of the husband that in one way or the other he
intended to prejudice the service of the wife. The finding recorded by the
learned Judge of the Family Court that the behaviour and the conduct of
the husband of making wild and unsubstantiated allegations resulted in
causing mental cruelty to the wife does not deserve to be interfered with.
12. The decision relied upon by the learned counsel for the
appellant in Uttara Praveen Thool (supra) is on the aspect of desertion
and the acts of condoning cruelty by the other spouse. The ratio of the
said decision cannot be made applicable to the case in hand. Similarly the
decision in ‘J’ (supra) also does not assist the case of the husband. The
point as framed is accordingly answered by holding that the Family Court
was justified in granting a decree for divorce to the wife on the ground of
cruelty.
13. In the light of aforesaid discussion, we find no merit in the
Family Court Appeal No.70/2015. The same is accordingly dismissed by
affirming the impugned judgment. The parties shall bear their own costs.
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