Gangadhar Nanhodasji Hedau vs Sau. Kunda

V.A. Naik, J—By this first appeal, the appellant-husband challenges the judgment of the Family Court, dated 04.11.2008, dismissing a petition filed by the appellant under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955.

Few facts giving rise to the appeal are stated thus -

The Appellant-husband was married to the respondent-wife at Nagpur according to Hindu rites and custom on 26.06.1999. After the marriage, the parties started residing in the matrimonial home at Lodhikheda in Chhindwara district, where the husband was working in Raymonds factory. The parties resided together only till 07.01.2000 and a girl child was born from the wedlock. In the petition filed by the husband for grant of decree of divorce on the ground of cruelty and desertion, it was pleaded that since the inception of the marriage, the wife was behaving very badly with the husband and his family members as he was residing at Lodhikheda in a small village. It was pleaded that the wife always insisted that the husband should leave Lodhikheda and shift to Nagpur. Time and again, the wife told the husband that her parents would support him while searching a job at Nagpur. It was pleaded that despite the refusal on the part of the husband to leave Lodhikheda, where he had a secured job and reside at Nagpur, the wife persisted in her demand. It was pleaded that the husband''s mother resided with him as she was ill and sick and totally dependent on the husband. The husband pleaded that the wife always abused the husband and his family members in a filthy language. It was pleaded that the wife threatened the husband to commit suicide and falsely implicate him in criminal cases. According to the husband, the wife tried to commit suicide by consuming phenyl, in his absence on 07.01.2000 and as soon as the husband became aware of this fact, he took the wife to his family doctor, Dr.Lokakshi. The family doctor, according to the husband, referred the wife to the Government Hospital for further medical treatment. In the police station, according to the husband, the wife voluntarily admitted that she had consumed phenyl and she was not interested in cohabiting with the husband at Lodhikheda. It was pleaded that on the advice of the police, the husband dropped the wife at her parental home at Nagpur in the month of January-2000 and the wife has never returned to her matrimonial home since then. It was pleaded that the attempt on the part of the wife to commit suicide and the other actions on her part clearly amounted to cruelty, as a result of which, it was impossible for the husband to stay with the wife under one roof. The husband pleaded that after sufficient treatment to the wife, he went to Nagpur to her parental home to bring her back to the matrimonial home at Lodhikheda but, the wife flatly refused to accompany him. The husband, therefore, sought a decree of divorce on the ground of desertion and cruelty. The husband pleaded that the wife had filed a petition against the husband under Section 125 of the Code of Criminal Procedure for maintenance and showed that she was not willing to accompany him but, was interested only in securing money. Since the parties were residing separately from 07.01.2000, by the petition filed in the year 2007, the husband sought a decree of divorce.

The wife filed the written statement and denied the claim of the husband. It was denied that the wife never wanted to live at Lodhikheda in her matrimonial home and that she asked her husband to seek a job at Nagpur. It was pleaded that she never quarreled with the husband and respected him and his family members. It was pleaded that she was ready and willing to cohabit with the husband. It was pleaded that the husband was addicted to liquor and she was beaten up on a number of occasions after he consumed the same. It was pleaded that the mother of the husband was the Karta of the family and under her directions and guidance, the husband used to assault her. She pleaded that she never attempted to commit the suicide nor did she threaten the husband that she would commit suicide. It was pleaded that she is a faithful woman, who respected her husband and his family members and the husband is, therefore, not entitled to a decree of divorce. It was pleaded that there was a quarrel between the mother-in-law, her sister-in-law Leelabai and herself on 07.01.2000 as her mother-in-law and the wife of the brother of her husband desired to change the medicine which was administered to her and substitute it by poison. The wife pleaded that after the fight, her mother-in-law and her sister-in-law forcibly thrust the phenyl in her mouth as a result of which, she was taken to the family doctor and then to the Government Hospital. The wife pleaded that though she had not consumed phenol, she was forced to state before the police officials that she had consumed poison. It was pleaded that she was threatened by her mother-in-law that she would be killed if she does not make that statement before the police. It was lastly pleaded that she was ready to cohabit with her husband but, her husband never made any attempt to bring her back to the matrimonial home after she was dropped to Nagpur at her parental home on 07.01.2000. The wife sought the dismissal of the Hindu Marriage Petition.

On the aforesaid pleadings of the parties, the Family Court framed the issues. The husband examined himself and the wife also examined herself. None of the parties examined any other witnesses in support of their case. On an appreciation of the evidence tendered by the husband and the wife, the Family Court dismissed the Hindu Marriage Petition. While dismissing the petition, the Family Court held that the husband had failed to prove that the wife had treated him with cruelty and that she had deserted him. The Family Court also held that the Family Court could not have passed a decree of divorce in view of the provisions of Section 23 of the Hindu Marriage Act as the husband cannot be permitted to take advantage of his own wrong. The judgment of the Family Court is challenged in this first appeal.

Shri Banik, the learned counsel for the husband, submitted that the Family Court was not justified in dismissing the petition filed by the husband. It is submitted that the parties lived together at Lodhikheda hardly for a period of six months and after separation on 07.01.2000, they have not cohabited for the past fifteen years. It is submitted that the Family Court ought to have granted a decree of divorce on the ground of desertion, specially when the wife had clearly stated in the proceedings filed by her under section 125 of the Code of Criminal Procedure and also in her cross-examination in this Hindu Marriage Petition that she was not ready to join the company of her husband. It is submitted that the husband and wife resided separately from 07.01.2000 and despite the attempt on the part of the husband to bring her back, the wife refused to return to the matrimonial home and join the company of the husband. It is submitted that the admissions of the wife in the petition under Section 125 of the Code of Criminal Procedure and this petition clearly show that the wife was not desirous of joining the company of the husband. It is submitted that the Family Court erroneously held that the wife was justified in not joining the company of the husband as he had remarried though there was not an iota of evidence in regard to the remarriage and the wife had clearly admitted in her cross-examination in regard to the absence of material in that regard. It is submitted that there is a vague pleading in the last paragraph of the written statement in regard to the remarriage of the husband without mentioning with whom the husband had remarried and when. It is submitted that though there was a considerable gap between the date of filing of the written statement and the tendering of evidence by the wife, the wife failed to substantiate her plea in regard to the remarriage of the husband. It is submitted that the Family Court erroneously held that the wife was justified in refusing to join the company of the husband in view of his remarriage, though there was no evidence whatsoever in that regard.

It is submitted that the Family Court was not justified in discarding the version of the husband in regard to the cruelty inflicted by the wife on him and his mother. It is submitted that the wife had clearly admitted in her pleadings that she had stated before the police that she had consumed phenyl but, she was forced to do so. It is submitted that if the wife had not attempted to commit suicide and the phenyl was forcibly thrust in her mouth by her mother-in-law and her sister-in-law, the police would have surely initiated action against the two ladies. It is submitted that the wife had admitted about consuming phenol on 07.01.2000 and the Family Court has erroneously disbelieved the case of the husband while accepting the case of the wife in regard to the thrusting of phenyl by her mother-in-law and sister-in-law. It is submitted that the admissions of the wife in her cross-examination that she was not ready to join the company of her husband clearly showed that the wife was not desirous of joining the company of the husband at Lodhikheda. It is stated that the wife had admitted in the cross-examination that her mother-in-law is very ill and if that be so, it was not possible to believe that she had forcibly administered phenol to the wife on 07.01.2000. It is submitted that it is also difficult to believe that a mother-in-law and her other daughter-in-law would change the medicine that was administered by the doctor to the wife and substitute it with poison. It is submitted that the pleadings of the wife clearly showed that the wife had no respect for truth and levelled false and baseless allegations against the husband. The learned counsel sought for the reversal of the judgment of the Family Court.

None appears on behalf of the respondent, though served.

On hearing the learned counsel for the appellant, the following points arise for determination in this first appeal.

I) Whether the husband proved that the wife treated him with cruelty?

II) Whether the husband proved that his wife deserted him?

III) Whether the husband is entitled to a decree of divorce on the ground of cruelty and desertion?

IV) What order?

To answer the aforesaid points for determination, it would be necessary to consider the pleadings and evidence of the parties. We have briefly reproduced the pleadings of the parties in the earlier part of the judgment. The husband entered into the witness box and reiterated the statements pleaded by him in the Hindu Marriage Petition. He admitted in his cross-examination that the wife and her family members were aware that he was working in Raymond Factory at Lodhikheda. The husband denied the suggestion that he had treated the wife badly after the marriage. He denied the suggestion that his mother and sister-in-law used to taunt the wife for her dark colour. The husband denied the suggestion that his mother and sister-in-law forced the wife to consume poison by pretending that it is a medicine. The husband admitted that he had taken the wife to the family doctor who asked him to take the wife to the government hospital. He admitted that the parties were residing separately since 07.01.2000. He stated in his cross-examination that after the separation, he went to Nagpur to bring back his wife to the matrimonial home but the wife''s mother did not allow him to meet her. He admitted that he had not filed any proceedings against wife for restitution of conjugal rights. He denied that his wife never pestered him to leave his job in Raymond at Lodhikheda and start serving at Nagpur.

The wife entered into the witness box and also reiterated the statements pleaded by her in the written statement. She stated in her evidence that she was married to her husband against the wishes of her husband and his family members. She stated that though Lodhikheda was a small village, she never asked her husband to leave Lodhikheda and start residing at Nagpur. She stated that on 07.01.2000, her mother-in-law started quarreling with her without any reason and she administered poison to her, as a result of which she became unconscious. She stated in her examination-in-chief that her mother-in-law and her sister-in-law Leelabai had threatened her about dire consequences and, therefore, she stated before the police authorities that she had voluntarily consumed phenyl. She stated that her husband never turned up to bring her back to the matrimonial home and never made any enquiry about their daughter. She blamed the husband and his family members for their separation. The wife admitted in her cross-examination that she did not lodge any police report against the husband and his family members for ill treating her. She admitted that she was aware even before her marriage that after the marriage she was required to reside with her husband at village Lodhikheda in a joint family. She admitted that the parties were residing separately since 07.01.2000. She further admitted that she had not reported to police about the ill treatment meted out to her by her husband and his family members on account of her dark colour. She denied the suggestion that her mother-in-law did not pick up quarrel with her on 07.01.2000. She denied the suggestion that the police registered a complaint against her for her attempt to commit suicide. She admitted that she had not filed any petition against her husband for restitution of conjugal rights. She admitted that she had filed petition against him for maintenance and in that petition, she had denied to resume cohabitation with her husband. She admitted that there was no conjugal relationship between her and her husband after 07.01.2000 and that she had not made any attempts to resume cohabitation. She denied the suggestion that she was not residing with her husband with a view to harass him. She, however, admitted that the aged mother of her husband was residing with him. She admitted that she was not ready to resume cohabitation with her husband.

On an appreciation of the evidence on record, it appears that the husband has satisfactorily proved that his wife treated him with cruelty and also left his company without any just and reasonable cause. In regard to the first point of determination, it is necessary to note that the evidence of the husband in his examination-in-chief is not falsified by any of his admissions or statements in his cross-examination. The husband had clearly stated that after the marriage, his wife started abusing him and his mother in filthy language. The husband had clearly stated that his wife wanted him to reside at Nagpur and leave Lodhikheda where he was working in the Raymonds Factory. It is stated by the husband that the wife picked up quarrel with him and his mother on trifle issues. It is stated that the wife threatened him that she would commit suicide and implicate him in a false criminal case. The husband stated in his evidence that the wife consumed phenyl on 07.01.2000 and attempted to commit suicide. The husband stated that it was not possible for him to stay with the wife under one roof, especially in view of her act of cruelty of consuming phenyl with an attempt to commit suicide and blaming the husband and his mother and sister-in-law Leelabai for the same. Though neither the husband nor the wife has examined any other witness to corroborate their evidence, we find that the husband has tendered sufficient evidence to show that the wife had treated him with cruelty. Pestering the husband to leave the place of his service job and seek service at a place where the parents of the wife reside, needs to be detested. The husband had a permanent job in the Raymonds Factory at Lodhikheda. The wife knew even before the solemnization of the marriage, as is admitted by her in her cross-examination that she was aware that her husband was residing at Lodhikheda in view of his job and she would be required to reside in her matrimonial house at Lodhikheda in a joint family. If the wife was aware that she would be required to reside at Lodhikheda, then her demand for shifting to Nagpur after securing another job was unreasonable. Apart from the said demand, there is evidence to show that the wife had consumed phenyl on 07.01.2000 and attempted to commit suicide. Though there is no documentary evidence on record in that regard, the evidence of the husband is more weighty as compared to the evidence of the wife. The husband had stated that the wife had consumed phenyl with a view to ::: Downloaded on - 15/07/2015 10:01:33 ::: commit suicide. On the other hand, the wife has pleaded and also stated in her evidence that phenyl was forcibly administered to her by her mother-in-law and her sister-in-law Leelabai. It is difficult to believe the version of the wife that a mother-in-law and her other daughter-in-law would join together and administer phenyl to the girl who was married in their family just six months earlier. It is also difficult to believe that the mother-in-law and sister-in-law wanted to substitute poison in the medicine bottle of the wife. The statement of the wife that she had a quarrel with her mother-in-law because her mother-in-law was replacing the medicine in the bottle by poison, appears to be unbelievable. It is also difficult to believe the pleadings and the evidence of the wife that she was married to her husband against the wishes of the husband and his family members. If the husband as well as his family members were not ready for the marriage, there was no reason why the marriage should have been solemnized. It is also difficult to believe the statement of the wife that she falsely stated before the police on 07.01.2000 that she had consumed phenyl in view of the threats given to her by her mother-in-law and sister-in-law Leelabai. If the wife had not consumed phenyl on her own, the police would have surely initiated some action against the mother-in-law and sister-in-law of the wife. If the allegations levelled by the husband against the wife and proved by his evidence, are considered cumulatively, it could be safely said that the wife had treated the husband with cruelty.

It is an admitted position that the wife was dropped to her parental home by the husband on 07.01.2000. None of the parties has filed a petition for restitution for conjugal rights. It is the case of the husband that he went to the wife''s parental home at Nagpur on two three occasions to bring her back to the matrimonial home but the wife refused to return. The evidence of the husband in his examination-in-chief in that regard is not falsified by his cross-examination. It would be necessary to accept the evidence of the husband as the wife has clearly admitted in her cross-examination that she had refused to join the company of the husband during the proceedings filed by her against him under Section 125 of the Code of Criminal Procedure and was not ready to join his company even during the pendency of this Hindu Marriage Petition. If the wife was not ready to join the company of her husband earlier during the pendency of the previous proceedings and was not ready to join his company during the pendency of these proceedings, it would be necessary to accept the evidence of the husband that the wife was not willing to cohabit with the husband. The wife has stated in her examination-in-chief that she was not ready to cohabit with him as he had remarried. In the written statement, the wife has made a passing reference to the remarriage of her husband without mentioning the date of remarriage and the name of the woman to whom he had remarried. No details in regard to the remarriage of the husband are given by the wife in her evidence. The wife has admitted in her cross-examination that there is no material to show that her husband has remarried. We find that the wife has put forth a nonexistent ground or reason for refusing to join the company of her husband. Even assuming that the reason is genuine, it can be clearly said that the wife has failed to prove the reason for refusing to join the company of her husband. There is not an iota of evidence on record to show that the husband has remarried. The husband has denied the suggestion in regard to his remarriage. The Family Court committed a serious error in holding that the wife was justified in refusing to join the company of her husband as he had remarried. The Family Court has given undue weightage to the evidence of the wife while disbelieving and discarding the evidence of the husband which was not falsified by his cross-examination. Since the wife refused to join the company of her husband without any reasonable cause or excuse, the husband is entitled to a decree of divorce on the ground of desertion. The Family Court was not justified in holding that the husband was not entitled to a decree of divorce in view of the provisions of Section 23 of the Hindu Marriage Act as he and his family members had created such atmosphere in the house, that resulted in the wife leaving the matrimonial home. It is also necessary to bear in mind that the parties have resided together for only about six months and have neither met nor cohabited with each other for a period of 15 years thereafter. It appears that the marriage ties between the husband are otherwise, broken. Considering the facts of the case, it would be necessary to hold that it is difficult for the husband to live with his wife under one roof and hence a decree of divorce needs to be granted.

Hence, for the reasons aforesaid, the Family Court Appeal is allowed. The judgment of the Family Court is quashed and set aside. The Hindu Marriage Petition filed by the husband for grant of decree of divorce on the ground of cruelty and desertion is allowed. The marriage solemnized between the parties on 26.06.1999 is dissolved by a decree of divorce. In the circumstances of the case, there would be no order as to costs.