Hema vs Matrishva

V.A. Naik, J—By this Family Court Appeal, the appellant-Wife challenges the judgment of the Family Court, Nagpur dated 14.12.2001 allowing a Hindu Marriage Petition filed by the respondent-Husband for a decree of divorce on the ground of cruelty and dissolving the marriage solemnized between the parties on 18.11.1994. By the said judgment, the Family Court dismissed the petition filed by the respondent-Husband for the custody of his son.

The respondent-Husband (hereinafter referred to as "''the husband"'') and the appellant-Wife (hereinafter referred to as "''the wife"'') were married at Nagpur according to Hindu rites and customs. The husband is a Brahmin by caste and the wife was a Buddhist. Both, the husband and the wife, were taking education in the Dental College at Nagpur. The parties were in love with each other and, therefore, decided to get married. Initially, there was an opposition from the parents of the respective parties for the marriage but, subsequently, the parents consented and the marriage was solemnized on 18.11.1994.

It is the case of the husband in the Hindu Marriage Petition filed by him for a decree of divorce that though the husband and the wife were ready to die for each other before the marriage, the wife refused to cooperate with the husband and his family members immediately after the solemnization of the same. It is pleaded that in the month of April-1995, the mother of the husband had been to Gujrat and the sister of the wife started residing with the parties in the matrimonial home with a view to help the wife in the household work. It is pleaded that though the father of the husband was expecting an urgent telephone call from Bombay, the sister of the wife talked with her relative for quite a long time. It is pleaded that when the father of the husband asked the wife as to how long her sister would talk over the telephone, the wife got irritated and left the matrimonial home to reside with her uncle at Kamal Chowk along with her sister. According to the husband, he was shocked with the conduct of the wife as the marriage was performed barely five months earlier. After some advice to the wife, the wife was fetched by the husband and she started residing in the matrimonial home. It is pleaded that the wife did not permit the husband and his family members, including his brother, from witnessing a T.V. serial in which the Brahmins were lauded. It is pleaded that when the husband and his family members asked the wife to permit them to witness the serial, the wife lost her temper and had beaten up the husband''s brother and when the husband''s father tried to intervene, the wife raised her hand on the husband''s father. It is pleaded that thereafter, the wife went out of the house and started abusing the husband and his family members by standing on the road. It is pleaded that in the month of June-1995, when the wife was working as an Assistant Lecturer in the Dental College at Sawangi Wardha, she left her matrimonial house to attend the job at Wardha but, failed to return home from Wardha for about 3 to 4 days without any intimation to the husband or his family members. It is pleaded that it was later on revealed to the husband that the wife was at Bhandara during the period of her absence for about 3 to 4 days. It is pleaded that on 01.08.1995, there was a dispute between the husband and the wife and when the parents of the husband intervened, the wife raised her hand over the parents, which shocked the parents of the husband. It is pleaded that on 02.08.1995, the wife left for Wardha and failed to return to Nagpur. It is pleaded that when the colleague of the wife was called to make an enquiry in respect of the wife, the wife was enraged and she abused the husband on the telephone. It is pleaded that there was a telephone call from Shri Kishore Dudhate that the husband should visit Wardha and bring the wife to the matrimonial home. It is pleaded that though the husband did not go to Wardha to fetch the wife, the wife herself returned back and again started residing in the matrimonial home with the same attitude of non-cooperation with the family members. It is pleaded that in the month of November-1995, when the husband went to Bhandara to attend the birthday of one of the relatives of the wife, the wife abused the husband in the foulest language at the entrance of the house of the relative for wearing chappals. It is pleaded that the wife humiliated the husband only because he had not put on his shoes. It is pleaded that after the wife returned from Bhandara, she asked the husband to reside separately with her. It is pleaded that on 15.06.1996, when the mother of the husband told the wife that it was very risky to keep a cylinder near the stove as there could be a possibility of a blast, the wife poured kerosene on herself and asked the mother of the husband to set her on fire. It is pleaded that the wife rushed out of the house and stood on the road with a matchbox in her hand. It is pleaded that after half an hour, the wife realized her mistake and re-entered the matrimonial home. It is pleaded that the wife always threatened the husband that she would implicate the husband and his family members in criminal cases. It is pleaded that it was not possible for the husband to tolerate the behaviour and the cruel treatment by the wife, any longer. It is pleaded that on 28.06.1996, the wife consumed 20 to 30 tablets with a view to commit suicide and as soon as this was detected, the husband rushed the wife to Dr.Sarda''s Hospital where she was treated and cured. It is pleaded that the husband informed about the said incident to the uncle of the wife, viz. Shri Sanjay Gajbhiye. It is pleaded that the wife returned to the matrimonial home from the hospital and it was realized soon thereafter that the wife was pregnant. It is pleaded that the pregnancy was required to be terminated as the parties were informed by the doctors that the consumption of the tablets may have an adverse effect on the foetus. It is pleaded that in the month of June-1996, there was a quarrel between the parties and the wife threw the clothes of the husband''s parents. It is pleaded that thereafter the husband and the wife started residing separately but, the behaviour of the wife did not change. It is pleaded that the wife fought with the husband on trifle matters and when the husband accompanied his father, who suffered from Psoriasis, to Madras, the wife locked the door from outside after they returned and the husband was required to seek the help of the neighbour to unlock the door. It is pleaded that the husband rushed to the Medical Chowk to secure the wife to the matrimonial home during the night hours. It is pleaded that the aforesaid acts caused great mental trauma to the husband. It is pleaded that when on the eve on Dussera, the husband had gone to his parents"'' house, the grandmother of the wife hosted a party for 10 to 15 persons in the matrimonial house without informing about the same to the husband. It is pleaded that even after the parties started residing separately, the wife always threatened the husband to commit suicide and involve the husband and his family members in criminal cases. It is pleaded that the wife became very violent on some occasions and the husband found that it was not possible for him to reside with the wife under one roof. The husband, therefore, sought a decree of divorce on the ground of cruelty.

The wife filed the written statement and denied the claim of the husband. The wife denied all the adverse allegations levelled by the husband against her. The wife pleaded that the husband was desirous of seeking a divorce as he was involved in an intimate relationship with Ms Sonali Ganorkar, who was working as his Assistant in a hospital at Amravati, where the husband visited two days during every week. It is pleaded that Ms Sonali Ganorkar was the only daughter to her parents and the father of Ms Sonali was an advocate. It is stated that Ms Sonali used to make regular calls to the husband on his Pager and he also made calls to Ms Sonali regularly. It is pleaded that on the Valentine''s Day, Ms Sonali sent a message to the husband on his Pager, between 8.00 to 9.00 a.m., and the husband rushed to the telephone booth to make a phone call to her. It is pleaded that when the wife enquired in the office of the Pager company, she was shocked to learn that Ms Sonali had sent a message to the husband on his Pager that he should contact her immediately on the two landline numbers, mentioned in the message. It is pleaded that the landline numbers were the numbers of the telephone in the residence of Ms Sonali. It is pleaded that when the wife checked the purse of the husband on his birthday on 13.06.1998, she found a receipt in the name of Sonali Matrishva Kashyap which showed that the husband and Sonali had performed Abhishek at Ganapati Temple, Tekdi, Sitabuldi, Nagpur. It is pleaded that on one occasion, the wife made a telephone call to the father of Ms Sonali, requesting him to advice Ms Sonali not to continue her relationship with the husband. It is pleaded that after the father of Ms Sonali looked into the matter, Ms Sonali left the job in the Dental Hospital but, the affair between the husband and Ms Sonali continued. It is pleaded that Ms Sonali was unmarried and with a view to marry her, the husband has filed the petition seeking a divorce from the wife. It is pleaded that the wife had made various sacrifices in her life and was rearing her two children. It is pleaded that the fact of the illicit intimacy between the husband and Ms Sonali was known to everybody concerned including the relatives, friends, colleagues, etc. The wife pleaded that the parties were residing together as husband and wife and the petition filed by the husband for a decree of divorce should be dismissed.

After the written statement was filed and after the wife levelled allegations in respect of the affair between the husband and Ms Sonali, the husband amended the petition. It is pleaded by the husband in the amended petition that the wife never disclosed the fact that she was one year elder to him. It is pleaded that the wife had an affair with Manwar before she was in love with the husband. It is also pleaded that there was an engagement between the wife and Rohanikant Mate but, she dodged him after the engagement. The husband pleaded in the amended petition that the wife had levelled false and baseless allegations in respect of the affair between the husband and Ms Sonali and the wife spoiled the reputation of the husband by informing the same to the relatives and the friends. The husband also filed a petition for the custody of his children.

The Family Court framed the issues and on an appreciation of the evidence on record, allowed the petition filed by the husband for a decree of divorce on the ground of cruelty and rejected the petition filed by him for the custody of the children. The wife has filed the Family Court Appeal against the part of the judgment of the Family Court granting a decree of dissolution of the marriage.

Shri Naidu, the learned counsel for the appellant-Wife, submitted that the Family Court was not justified in allowing the petition for a decree of divorce. It is submitted that the marriage between the parties was a love marriage and the husband was taking advantage of his own wrong while seeking a decree of divorce. It is submitted that the husband was desirous of marrying Ms Sonali and, therefore, the husband had filed the petition for a decree of divorce after the wife detected the affair. It is submitted that the Family Court was not justified in holding that the husband had proved that the wife had treated him with cruelty on the basis of the evidence of the husband. It is stated that if it was the case of the husband that the wife had threatened him to commit suicide and implicate him and his family members in false cases and if the wife had really attempted to commit suicide on two occasions, the husband ought to have examined some witnesses in support of his case. It is submitted that the evidence of the husband was not sufficient for proving that the wife always threatened him to commit suicide and falsely implicate him and his family members in criminal cases. It is stated that if the wife had poured kerosene on herself after the husband''s mother had asked her not to keep the gas cylinder near the stove and had asked her mother-in-law to set her on fire, the mother of the husband ought to have examined by the husband in support of his case. It is submitted that the Family Court committed an error in discarding the receipt in the name of Ms Sonali Matrishva Kashyap on a reason which would not appeal to a reasonable man. It is submitted that though the wife did not produce any evidence to show that she had secured the knowledge about the husband receiving the message from Ms Sonali on the Pager, the Family Court ought to have accepted the case of the wife on the basis of her testimony. It is submitted that the Family Court has erroneously accepted the oral evidence of the husband to hold that the wife had treated the husband with cruelty. It is submitted that in the circumstances of the case, specially when the parties have two young sons, the decree of divorce is liable to be reversed.

Shri Gordey, the learned Senior Counsel appearing on behalf of the respondent-Husband, supported the judgment of the Family Court and submitted that the Family Court had rightly appreciated the evidence of the parties to hold that the wife had treated the husband with cruelty. It is submitted that the husband was not cross-examined on behalf of the wife in regard to his evidence about the wife attempting to commit suicide on two occasions. It is submitted that the husband has not been cross-examined at all on his evidence in respect of the threats by the wife to commit suicide and to implicate the husband and his family members in false criminal cases. It is submitted that the husband has been successful in proving that the wife tried to commit suicide on two occasions with a view to harass the husband. It is submitted that merely because the mother of the husband had asked the wife that the gas cylinder should not be kept near the stove as there could be a possibility of a blast, the wife ought not have poured kerosene on herself and asked the mother of the husband to set her on fire. It is submitted that the act on the part of the wife to stand on the road with a matchbox and ask the mother of the husband to set her on fire tantamounts to cruelty and the Family Court has rightly held so. It is submitted that there is ample evidence on record to show that the wife had consumed 20 to 30 tablets with a view to commit suicide and the husband had to rush her to a hospital where she was treated and cured. It is stated that the husband has tendered enough evidence to prove the aforesaid facts and he was not cross-examined by the wife on his evidence on the said facts. It is submitted that the wife had levelled false and reckless allegations against the husband in regard to his affair with Ms Sonali. It is stated that there is evidence on record to show that Ms Sonali was working at the hospital in Amravati even before the husband joined the hospital and, therefore, the case of the wife that Ms Sonali was appointed in the hospital only at the insistence of the husband, was false. It is stated that levelling of false, scandalous and baseless allegations against the husband and not proving them by tendering sufficient evidence is held to be an act of cruelty and in this case, the Family Court has rightly held that the wife had levelled scandalous and reckless allegations against the husband that were not proved. It is submitted that the conduct of the wife was such that it was impossible for the husband to reside with the wife under one roof and, therefore, the Family Court has rightly granted a decree of divorce in favour of the husband.

On hearing the learned counsel for the parties and on a perusal of the Record & Proceedings, it appears that the following points arise for determination in this Family Court Appeal.-----

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

ii) Whether the husband is entitled to a decree of divorce on the ground of cruelty?

iii) What order?

To answer the aforesaid points for determination, it would be necessary to consider the pleadings of the parties and the evidence tendered by them. The husband has examined himself and closed the evidence on his side. The wife had also examined herself and did not examine any other witness. It would not be necessary to state the pleadings of the parties at this stage as the pleadings of the parties have already been stated in the earlier part of this judgment. The husband entered into the witness box and narrated the facts pleaded by him in the petition for divorce. The husband was cross-examined at length on behalf of the wife. It is necessary to note that though the husband was cross-examined at length, there was no suggestion on behalf of the wife in respect of the threats by the wife of committing suicide and implicating the husband and his family members in false criminal cases. The husband has narrated the incident dated 15.06.1996 when the mother of the husband had asked the wife not to keep the gas cylinder near the stove as there might have been a possibility of a blast and the wife had poured kerosene on herself and had asked the mother of the husband to set her on fire. The evidence of the husband in regard to the incident dated 28.06.1996, when the wife had consumed 20 to 30 tablets with a view to commit suicide and that she was rushed to Dr.Sarda''s hospital where she was cured, has also gone unchallenged. There is no suggestion on the part of the wife that the aforesaid incidents did not happen on 15.06.1996 and 28.06.1996 respectively. When the evidence of the husband in respect of the aforesaid incidents went unchallenged, it was not necessary for the husband to examine any other witness in support of his case in that regard. It is well settled that while appreciating the evidence, it is the quality of the evidence that matters and not the quantity of the evidence. In a given case, a fact could be proved only on the basis of the evidence of a solitary witness and in yet another, a fact may not be proved even after examining ten witnesses. The Family Court considered the evidence of the husband and found it to be trustworthy. Also, as noted hereinabove, the husband was not cross-examined on the material facts in respect of the attempt of the wife to commit suicide on the two occasions, i.e. 15.06.1996 and 28.06.1996. The Family Court has, therefore, rightly held on the basis of the unchallenged evidence of the husband that the wife had attempted to commit suicide on two occasions and had also threatened the husband and his family members that she would commit suicide and implicate them in false criminal cases. It is not possible for a husband to live with a wife under one roof if the wife is in the habit of threatening the husband of committing suicide or has attempted to commit suicide on a couple of occasions. Since the wife had attempted to commit suicide on two occasions, the Family Court rightly held that the husband had a reason to believe that the wife would attempt to commit suicide and/or implicate him and his family members in criminal cases. The Family Court found that the wife had made false and reckless allegations against the husband in respect of his affair with Ms Sonali. The Family Court found that the wife had not tendered any cogent evidence to prove that the husband had gone to Ganesh Temple, Tekdi for Abhishek along with Ms Sonali and that they had performed the Abhishek. Though the wife had pleaded that she became aware from the Office of the Pager company that the husband had received a message from Ms Sonali on Valentine''s Day that he should immediately contact her on the two landline numbers of Amravati, the wife did not tender any cogent evidence before the Family Court, in that regard. The Family Court rightly held that the wife had been unsuccessful in proving the receipt of Abhishek in Ganesh Temple, Tekdi and also that the husband had received the message from Ms Sonali on the Pager. On a perusal of the receipt at Article ''A'', it appears that the Family Court has rightly held that such a receipt could be manufactured or prepared by anybody and the wife has not been successful in proving that she had recovered the said receipt from the wallet of the husband and had proved that the husband had performed Abhishek at Ganesh Temple, Tekdi along with Ms Sonali. The Family Court rightly held that the wife had levelled scandalous and reckless allegations against the husband and had failed to prove them by tendering cogent evidence. Levelling false allegations in the written statement and failing to prove them would surely tantamount to cruelty. It is necessary to note that the wife had admitted in the cross-examination that there was no evidence to show that she had enquired from the Office of the Pager company in respect of the message on the Pager of the husband. The Family Court further found that the wife had falsely deposed about the incident of witnessing the photographs of Ms Sonali in the purse of the husband though the said fact was not pleaded by her in her written statement. The wife admitted in her cross-examination that the said fact of witnessing the photographs of Ms Sonali in the purse of the husband was not pleaded by her. Though the wife had denied that she had suicidal tendency and the parties started residing separately from the parents of the husband in view of the same, the Family Court rightly found that the husband had been successful in proving the attempts by the wife to commit suicide. The Family Court rightly found that apart from the attempts of the wife on the two occasions to commit suicide, the wife had also left the house within five months of the marriage only when the father of the husband had asked the wife why her sister was talking for a long time on the telephone when he was expecting an urgent call from Mumbai. It appears that the evidence of the husband was rightly accepted by the Family Court in respect of the said incident and the Family Court held that the act of the wife to leave the matrimonial home along with her sister and join the company of her uncle at Kamal Chowk coupled with the other facts proved by the husband, would tantamount to cruelty. The Family Court believed the case of the husband that the wife was not permitting the family members of the husband to witness an episode of a T.V. Serial in which the Brahmins were lauded and when the family members of the husband insisted on witnessing the serial, the wife had assaulted the brother of the husband and had also raised her hand on the father of the husband. The Family Court held and rightly so that the husband had been successful in proving that the wife had abused the husband in a very foul and filthy language when he went to Bhandara to attend the birthday party of a relative of the wife merely because he wore chappals and did not put on his shoes. The aforesaid proved instances, according to the Family Court, clearly showed that the wife had treated the husband with cruelty and, therefore, it was not possible for the husband to live with the wife in the matrimonial home. On a perusal of the evidence on record, both oral and documentary, we find that the Family Court has appreciated the evidence in the right perspective and the findings recorded by the Family Court on the issues involved in the petition are just and proper. There is no scope for interference with the findings recorded by the Family Court in this appeal.

In view of the aforesaid, the Family Court Appeal is dismissed with no order as to costs.