Ganesh vs Rekha

A.M. Badar, J—By this appeal filed under Section 19 of the Family Courts Act, 1984, the unsuccessful petitioner/husband, is challenging the judgment and order dated 13.05.2013, passed by the learned Principal Judge, Family Court, Nagpur thereby dismissing the petition for divorce filed by the petitioner/husband against the respondent wife. For the sake of convenience, the appellant/original petitioner shall be referred to as the petitioner/husband and respondent shall be referred to as the wife.

The facts leading to the institution of the present appeal can be summarized thus --

"The original petitioner/husband, invoking Section 13[1][ia] and [ib] of the Hindu Marriage Act, 1955 filed a petition claiming a decree of divorce against the respondent/wife for dissolving their marriage solemnized on 18.06.1998. The husband alleged that he married respondent/wife on 18.06.1998, at Nagpur as per the customs prevailing in their community, and the parties are governed by the Hindu Marriage Act, 1955. He further alleged that thereafter, the respondent/wife started cohabiting with him. It is the case of the husband that behaviour of the wife with him as well as his family members was good for few days only. Thereafter, the respondent/wife started quarreling with the husband as well as other family members. She used to wake up at 9 to 9.30 a.m. She was not doing any household work such as preparing meals etc. She was in the habit of leaving the matrimonial house frequently. The husband was required to bring her back, time and again. The petitioner/husband further alleged that because of such behaviour of the respondent/wife, he was constrained to convene a meeting of the elders in the family and community, in order to give an understanding to the respondent/wife. However, despite that meting, the respondent/wife failed to mend her ways. The petitioner/husband further alleged that the couple was blessed with a male child on 21.10.1999, who was named as ''Gopal''. However, even after delivery of the male child, there was no change in the behaviour of the respondent/wife. She became more quarrelsome. According to the husband, he attended marriage of sister of respondent/wife and suffered humiliating treatment. The respondent/wife along with parents extended threat of life to the petitioner/husband at the time of that marriage. The petitioner/husband further contended that while returning from that marriage ceremony, the respondent/wife did not bring back the ornaments taken by her."

It is the case of the petitioner that on 28.06.2000, he had been to Vaishno Devi. Taking advantage of the fact that the petitioner was out of station, the respondent/wife quarreled with his family members and went to her parental house. When the petitioner/husband went to fetch her, she started quarreling with him and insisted for separate residence. According to the petitioner on 13.09.2000, the respondent/wife along with her parents and other persons came to the house of the petitioner. They all had quarreled and beaten mother as well as sister of the petitioner. Ultimately, when the neighbours came to rescue, the respondent/wife and her associates ran away, but, her mother lodged a false report against the petitioner. According to the petitioner/husband, while leaving the matrimonial house, the respondent/wife took with her an amount of Rs. 10,000/-, apart from the ornaments. She had also taken Gopal with her.

According to the petitioner/husband, when thereafter his son Gopal was ill and was admitted in Mayo Hospital, Nagpur. This fact was not even disclosed to the petitioner and when he went to meet his son, the respondent/wife quarreled with him.

According to the petitioner, he filed a petition for restitution of conjugal rights before the Family Court. However, thereafter, both the parties lived together. Ultimately on 13.09.2000, the respondent/wife left the company of the petitioner. The petitioner did not attend the petition for restitution of conjugal rights under an impression that it is rendered infructuous. However, by playing foul game, the respondent/wife got the said petition dismissed. With these averments, the petitioner/husband alleged that the respondent/wife had subjected him to cruelty, and had deserted him continuously for a period of not less than 2 years. With these averments he prayed for a decree of dissolution of marriage.

The claim of husband came to be opposed by the respondent/wife by filing written statement denying each and every averments made by the petitioner. The respondent/wife admitted the fact that after their marriage, she started cohabiting with the petitioner and they were blessed with a male child named ''Gopal'' on 21.10.1999. According to the respondent/wife, after marriage, her husband and his family members started ill-treating her by demanding money as well as gold. Her parents were unable to meet those illegal demands. The wife further alleged that at the time of birth of their son Gopal, as the petitioner refused, her parents were required to meet the expenses of her delivery. The respondent/wife further alleged that in the month of March, 2000 because of continuous harassment of her husband, her health deteriorated and it was found that she is suffering from Tuberculosis. Thereafter her husband started torturing her mentally. The respondent/wife further alleged that on 28.06.2000, the petitioner/husband left the house and went out of station without informing her. Thereafter, the family members of her husband drove her away from her matrimonial house with her son Gopal. Therefore, she went to her parents house. According to the respondent/wife on 13.09.2000, she along with her parents went to the house of the petitioner for persuading him. However, at that time the petitioner insulted and assaulted them and hence, her mother lodged a report with the police station, Tahsil which resulted into registration of N.C. No. 1884/2000 under Section 323 of Indian Penal Code. It was at that time, according to the respondent/wife she came to know that the petitioner was having an affair with Savita Sudam Nandanwar, and as he wanted to keep that lady with him, the respondent was driven out of the house.

The wife further alleged that on or about 18/19.10.2001, said Savita delivered a male child named Hritik. According to her, she filed Criminal Complaint for the offence punishable under Section 494 of the Indian Penal Code, which is registered as Criminal Case No. 3330/2009, and the same is pending. The respondent/wife further pleaded that during the pendency of the petition for restitution of conjugal right there was settlement between the parties, and therefore, she started living with the petitioner/husband. However, the ill-treatment continued even thereafter. Ultimately, according to her, the petition for restitution of conjugal rights filed by her husband was dismissed by holding that the petitioner had performed second marriage. Her petition for maintenance was allowed by directing the husband to pay maintenance of Rs. 1,500/- per month and of Rs. 750/- p.m. to her son Gopal. With these averments, the respondent/wife prayed for dismissal of the petition for divorce.

In support of his claim, the petitioner has examined himself at Exh. 17 and also examined two witnesses namely his uncle Vishnu Wattighare, at Exh. 18 and one Ramchandra Khapre at Exh. 19. In rebuttal, the respondent - wife examined herself at Exh. 24. After hearing the parties, the learned Principal Judge of Family Court, Nagpur vide the impugned judgment and order dated 13.05.2013, came to the conclusion that the petitioner - husband has failed to prove that the respondent/wife treated him with cruelty or that the respondent/wife deserted for more than two years immediately before presentation of the petition, without there being any sufficient cause.

We have heard Shri Bhagwani, the learned Counsel for the petitioner - husband. He vehemently argued that by his evidence the petitioner has demonstrated that the acts of respondent/wife amounted to mental cruelty to him. According to the learned counsel for the petitioner, it is proved by clear and cogent evidence of the petitioner, as well as his witnesses, that the respondent/wife was subjecting the petitioner to harassment by avoiding to comply her matrimonial obligations. The learned counsel submitted that the conduct of the respondent/wife in waking up late in the morning, not doing household duties and leaving the company of the petitioner frequently and by staying at her parental house constitutes an act of cruelty, thereby entitling the petitioner for a decree of divorce. The learned counsel for the petitioner further argued that the respondent/wife deserted the petitioner by leaving her matrimonial house on 28.06.2000, with an intention not to join the company of the petitioner and as this period of desertion was more than two years, the petitioner is entitled to a decree of divorce. In his submission, the impugned judgment is totally perverse.

Shri Agasti, learned counsel appearing for the respondent/wife supported the impugned judgment by arguing that the petitioner has not proved cruelty, nor it is established on record that the respondent/wife deserted the petitioner continuously for a period of more than two years immediately preceding the presentation of the petition. In submission of Shri Agasti, the learned counsel for the respondent, it is proved on record that during subsistence of the marriage of petitioner with the respondent, he has performed second marriage. The learned counsel for respondent pointed out the common judgment of the learned Principal Judge, Family Court Nagpur in Petition No. A489/2000 and Petition No. E149/2001, decided on 20.04.2006 (Exh. 27), and contended that the learned Principal Judge of the Family Court while rejecting the claim of the petitioner for restitution of conjugal rights, has held that the petitioner/husband has performed second marriage with Savita. According to him, the petition for divorce was lodged merely in order to get rid from the respondent/wife.

Having heard the arguments advanced by both the parties and on careful perusal of the record and proceedings, the following points arise for our consideration and determination;

"(i) Whether the petitioner/husband has proved that after solemnization of their marriage the respondent/wife treated him with cruelty?

(ii) Whether the petitioner/husband has proved that the respondent/wife has deserted him for a continuous period of not less than 2 years preceding the presentation of the petition?"

We are recording our findings in the negative on these points for the reasons to follow.

The claim for divorce lodged by the petitioner/husband is mainly based on the ground of alleged cruelty to him by the respondent/wife. The term cruelty implies harsh and harmful conduct of certain intensity and persistence. The concept of cruelty varies from place to place, person to person and culture to culture. For determining whether the act of a spouse amounts cruelty, it is necessary to weigh all the incidents and factual background presented before the Court. What is the cruel treatment, is the question of fact to a large extent. It is not possible to lay down the precise standard of measure or the nature of degree of cruel treatment warranting divorce. By now it is settled that the term cruelty, includes both physical as well as mental cruelty. The term cruelty implies willful conduct of such a nature so as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious to him to live with the respondent. Keeping in mind these principles, one will have to evaluate the evidence on record in order to ascertain legality of the impugned judgment.

At the outset, let us put the undisputed position on record in order to cut short the controversy. It is not in dispute that the marriage between the parties was solemnized on 18.06.1998, and thereafter, the respondent/wife started cohabiting with the petitioner/husband. Undisputedly, the respondent/wife gave birth to a male child Gopal on 21.10.1999. It is also not in dispute that in March, 2000, the respondent/wife suffers from tuberculosis. Un-disputedly on 25.06.2000, the petitioner/husband left the house allegedly for visiting Vaishno Devi temple. The respondent/wife has not disputed the fact that thereafter she started residing separately, though according to her, on that date she was driven out of the house by the family members of the petitioner/husband. It is also not in dispute that the petitioner - husband filed a petition for restitution of conjugal rights, vide Petition bearing No. A/489/2000, and ultimately the said petition was dismissed by the judgment and order dated 20.04.2006 (Exh. 27), by the Principal Judge of the Family Court, Nagpur. With all these undisputed facts, let us examine the evidence on record in order to ascertain, whether the petitioner has proved that the respondent had treated him with cruelty or that she deserted him for a continuous period of not less than two years, preceding filing of the petition for divorce.

In order to appreciate evidence of the parties in its proper perspective, one will have to keep in mind the finding recorded by the Principal Judge, Family Court, Nagpur while dismissing the petition No. A489/2000, filed by the petitioner/husband for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. The judgment and order dismissing this petition is at Exh. 27 of the record and proceedings. It is not in dispute that this judgment and order rejecting the claim for restitution of conjugal rights of petitioner/husband has attained finality, as the same is not challenged by him. Paragraph No. 17 of that judgment needs reproduction and it reads thus --

"It is the wife''s case that the husband was having an affair with one lady since prior to the marriage. He had brought said lady in the house and later on he has performed marriage with the said lady. The wife has specifically pleaded about the husband''s marriage with said Savita on 31.12.2000 at Ram Mandir, Ramtek, Nagpur. The husband has denied these facts. The wife has filed Marriage Invitation Card of the marriage between husband and Savita d/o Sudama Nandanwar is at Exh. 25. The wife has also filed photograph of her husband and his second wife Savita at Exh. 26. The said Savita has delivered a child from the husband. The copy of Birth Certificate is at Exh. 27 (Exh. 25 to 27 as stated above are from petition No. E.149 of 2001). The above documentary evidence clearly supports the wife''s case that the husband has performed second marriage on 31.12.2000. The husband has chosen not to challenge this evidence. Hence, I am constrained to accept the wife''s evidence on the point of husband''s second marriage. I am thus satisfied that the husband has performed second marriage with said Savita on 31.12.2000."

Bare perusal of the findings of the Principal Judge, Family Court, Nagpur while deciding the petition for restitution of conjugal rights filed by the petitioner - husband, goes to show that he has performed second marriage with one Savita on 31.12.2000, while his marriage with the respondent/wife was still subsisting. This fact is proved by adducing cogent evidence by the respondent/wife before the Family Court, Nagpur. It is thus clear that the petitioner/husband who is alleging cruelty and desertion by the respondent/wife, has himself solemnized second marriage with one Savita Nandanwar, as alleged by the respondent/wife. This aspect needs to be kept in mind while considering the evidence on record because, it is very easy to make allegations about cruelty and once those are made, it is very difficult to dislodge the same. Evidence in the instant case is mainly comprising of oath against oath, and therefore, one will have to adjudicate the allegations of cruelty and desertion attributed to the wife by preponderance of probabilities. The fact that the petitioner/husband has solemnized marriage with another lady tilts the balance of probabilities in favour of the defenses raised by the respondent/wife.

The petitioner/husband has tendered evidence on affidavit before the Principal Judge, Family Court, Nagpur which is to a large extent reproduction of pleadings made by him in his petition for divorce, therefore, the same is not reproduced again. Suffice to mention that, it is in the evidence of the petitioner/husband that the respondent/wife used to wake up late in the morning, was not doing any household work and that she used to leave the the matrimonial house for visiting her parental house. Evidence of petitioner further shows that then there was meeting of elders in the community, but, thereafter also, according to him behaviour of petitioner did not change. He further stated in his evidence that he incurred expenses of delivery of the respondent/wife. He deposed that the respondent and her family members quarreled with him at the time of marriage of sister of respondent and they also extended threat of life to him. As per his version, while returning from marriage, the respondent/wife did not bring back the ornaments. The husband also stated that when he went for pilgrimage to Vaishno Devi on 28.06.2000, the respondent/wife left the matrimonial house. That as per his version, on 13.09.2000 she along with 6 other women and her parents came to his house, quarreled with his family members, beaten them. The petitioner/husband stated in evidence that on arrival of neighbours, the respondent wife and her associates left the house and at that time she took cash amount of Rs. 10,000/-, as well as golden ornaments with her. It is in evidence of the petitioner, thereafter, during pendency of the petition for restitution of conjugal rights, there was compromise and the respondent/wife started residing with him from 13.09.2000. Therefore, as per his version, he failed to attend the Family Court, and his petition came to be dismissed.

We are unable to persuade ourselves that the petitioner is a witness of truth. His evidence appears to be contradictory. At one point of time, the petitioner is stating that on 28.06.2000, the respondent/wife left her matrimonial house and on 13.09.2000, she re-visited his house, assaulted his family members and on arrival of neighbours, she and her associates escaped. But, in the next breath, the petitioner is stating on oath that the respondent/wife started residing with him as usual from 13.09.2000, and therefore, he failed to attend the petition for restitution of conjugal rights, pending with the Family Court. Thus, evidence of the petitioner that because of compromise between the parties he did not attend the Family Court, does not inspire confidence. Moreover, he has not challenged the judgment at Exh. 27, rejecting his claim.

As against this evidence of the petitioner, the respondent/wife in her evidence affidavit at Exh. 24, has stated on oath that the petitioner wanted to marry Ku. Savita Nandanwar, and therefore, he was subjecting her to cruelty. She deposed that the petitioner infact married said Savita Nandanwar on 31.12.2000 at Ramtek, and thereafter started cohabiting with her. We see no reason to disbelieve this version of the respondent/wife, which is duly corroborated by the finding of the Principal Judge of the Family Court in Petition No. A489/2000, which has attained finality.

It is in the evidence of the respondent/wife that in March, 2000, her health deteriorated, and she was found to be suffering from tuberculosis. The papers of her medical treatment (Exh. 28) with the Government hospital duly corroborates this version of the respondent/wife. Her evidence that as she suffered from tuberculosis, the petitioner started torturing her mentally, is not shattered in in the cross examination. Therefore, it is seen that it was the respondent/wife who suffered ill-treatment at the hands of the petitioner, after she was detected to be suffering from tuberculosis. Thereafter, it is proved from evidence on record that within 9 months, the petitioner himself married another woman, and started cohabiting with her. In the wake of this clinching evidence, it cannot be said that the petitioner/husband has proved that the respondent/wife has subjected him to cruelty, or that she had deserted him continuously for the period of two years. We find no substance in his bald averments that the respondent/wife used to wake up in late morning hours, was not preparing food or not doing household duties.

So far as the incident which happened on 28.06.2000, is concerned, as per version of the petitioner, he was not present at that time in the house, as he has left the house for visiting temple of Vaishno Devi. Therefore, one will have to accept the evidence of respondent/wife that in absence of the petitioner on 28.06.2000, his family members drove her out of the house, compelling her to take shelter of her parental house. This evidence coupled with the fact that the husband subsequently performed second marriage with another women named Savita, does not allow us to hold that the petitioner/husband has proved the fact that the respondent/wife was in a habit of leaving the matrimonial house frequently for visiting her parental house. Similarly, as the respondent/wife was driven out of the house by the family members of the petitioner/husband on 28.06.2000, it cannot be said that she had deserted petitioner.

According to the version of petitioner/husband, at the time of marriage of sister of the respondent/wife, she as well as her parents quarreled with him and extend threat to his life. Evidence regarding this incidence is comprising of oath against oath, and the respondent/wife clearly denied the fact in her deposition that at the time of marriage, she or her mother quarreled or insulted the petitioner. No other witness is examined so as to prove the alleged incident. As the petitioner/husband was invited for the said marriage by the family members of the respondent/wife, evidence of the husband that he suffered humiliation and threat to his life, in that event is wholly unreliable. As such, it is not possible to record a finding that the incident of such type reflecting cruelty by the respondent/wife is proved by the petitioner.

Version of respondent/wife shows that after she was driven out of her matrimonial house on 28.06.2000, she attempted to resume cohabitation with the petitioner on 13.09.2000, by visiting his house along with her parents and relatives. Evidence of respondent/wife further shows that the petitioner and his family members did not permit her to cohabit and rather assaulted her. She further deposed that because of this, her mother lodged a report with the Tahsil Police Station, resulting in registration of non-cognizable offence punishable under section 323 of the Penal Code, against the petitioner. This evidence of the respondent/wife is also not shattered in the cross examination. Evidence of petitioner/husband goes to show that the respondent had been to his house on 13.09.2000. Thus evidence of respondent/wife gains corroboration from this evidence. Considering this acceptable evidence of respondent - wife, it cannot be said that the petitioner has proved cruelty as alleged by him or alleged desertion by the respondent/wife.

It is in the evidence of the petitioner/husband that on 06.09.2003, he took the respondent for cohabitation, but, evidence of the respondent/wife goes to show that thereafter also she was not properly treated by the petitioner. Exh. 29 is the compromise deed executed by the parties on 06.02.2011. This compromise deed reflects that the parties had agreed that they will not trouble each other, physically or mentally. It is mentioned therein that the parties will not quarrel with each other. Evidence of respondent/wife shows that despite execution of this compromise deed, the petitioner/husband had not taken her for cohabitation. Thus, evidence on record goes to show that it was the petitioner/husband who was not permitting the respondent/wife to cohabit with her.

In order to demonstrate cruel treatment at the hands of the respondent/wife, the petitioner/husband has relied upon the evidence of his uncle - Vishnu (P.W.2). However, evidence of P.W.2- Vishnu is as vague as it can be. It refers to the meeting of relatives, and this witness has deposed that while leaving the house, respondent/wife had taken Rs. 10,000/- which was saved by him. If that was so, nothing prevented P.W.2- Vishnu from lodging report of theft against the respondent/wife. This was not done by him. We are therefore, not inclined to accept the testimony of this interested witness.

P.W.3- Ramchandra is a person of acquaintance of petitioner. As per his version, respondent/wife was not ready to reside with the petitioner/husband and there used to be quarrel between the petitioner and the respondent. One will have to keep in mind that quarrel is a bilateral phenomena and evidence of P.W.3 Ramchandra is not attributing cause of alleged quarrel to the respondent/wife.

To sum up, in the wake of foregoing discussion we are of the considered opinion that the petitioner/husband has failed to prove that the conduct of the respondent/wife was of such a nature so as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious to live with the respondent/wife. Similarly, the petitioner failed to prove that the respondent/wife had deserted him by willfully leaving his company for continuous period of not less than two years before the filing of the petition for divorce. In the result, we proceed to pass the following order:--

"The Family Court Appeal is dismissed with costs."