JIVAN MADHUKAR NAGAPURKAR vs SHAILA JIVAN NAGAPURKAR S

S.S.Shinde, J.

1.By this Family Court Appeal, the appellant â€" husband challenges the judgment and decree dated 12th July, 2010 passed by the Family Court,

Aurangabad, dismissing the Petition No.AÂ266 of 2009 filed by the appellant under section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955,

thereby refusing to grant decree of divorce in favour of the appellant i.e. original petitioner.

2.The case of the appellant seeking decree of divorce, in brief, can be stated as under :The marriage between appellanthusband and respondentÂwife

was solemnized on 21st May, 1995 as per the Hindu Rites. After marriage, the respondent repeatedly used to visit and stay at her parental house. The

appellant tried to bring respondent back on several times, but she did not come. Grandmother of the appellant is aged about 90 to 91 years and his

mother is aged about 70 years and both are bed ridden. Therefore, there is no possibility to have any illtreatment to the respondent at their hands.

Inspite of this, the respondent is not ready to cohabit with appellant. The respondent treated him with mental cruelty, for a long period of 13 years and

with a malafide intention to get maintenance allowance, the respondent is refusing to cohabit with him. Since the year 1998, the respondent is residing

separately from the appellant. Therefore, on these grounds, the appellant filed Petition for divorce before the Family Court, Aurangabad bearing

Petition No.AÂ​266/2009 on 24th July, 2009 and prayed for grant of a decree of divorce against the respondent.

3.The respondentÂwife filed written statement in the Petition and admitted her marriage with the appellant. The respondent has specifically denied

that, she is residing separate from the appellant, with malafide intention to grant maintenance allowance. Respondent pleaded that, after marriage, she

went to reside at the house of the appellant. At that time, the elder brother and mother of the appellant were suffering from mental illness. The

grandÂmother of the appellant is residing with the appellant and on an instigation of his grandÂmother, the appellant used to abuse and assault her.

The grandÂmother of appellant also used to abuse and illÂtreat her. Therefore, according to the respondent, she started residing separate from the

appellant.

4.After considering the aforeÂsaid pleadings of the parties, and considering the oral as well as documentary evidence brought on record, the Family

Court dismissed the Petition for divorce. Hence this Family Court Appeal.

5.Learned counsel appearing for the appellant invites our attention to the evidence on record, and submits that, the Family Court at Aurangabad

answered the issue as regards cruelty in negative, by relying only on observation of the Family Court, while considering the request of the present

respondent, for grant of maintenance under section 18 of the Hindu Adoption and Maintenance Act, to the effect that, the appellant treated respondent

â€" wife with cruelty, and therefore, she has justifiable ground to reside separate from the appellant. According to appellant, the said finding should not

have been relied upon on the grounds that, (i) the order granting maintenance under section 18 was an exÂparte, (ii) the degree of proof required

under section 18 of Hindu Adoption and Maintenance Act and one required under section 13 of the Hindu Marriage Act, are completely different, (iii)

assuming without admitting, it was permissible for Family Court to borrow the findings recorded in earlier proceedings between the parties, an

opportunity to rebut any inference arising from its existence by leading other evidence or to explain the facts and circumstances under which such a

finding came to be recorded, ought to have been given before relying upon the same. (iv) the Family Court ought to have apply its mind to the fact

that, said finding had been recorded way back in the year 2002 and proceedings for divorce are filed in the year 2009.

6.It is submitted that, the respondentÂwife did not examine any witness in support of her contention that, the father of appellant and his sister

subjected her to illÂtreatment. In absence of any evidence in support of her plea of alleged illÂtreatment by the relatives of appellant, the Family

Court should not have assumed that respondent had a reason to live separate from the appellant.

7.It is submitted that, the Family Court discarded the appellant's plea of cruelty by observing that, the pleadings of appellant are vague, as the appellant

specifically stated in the petition that, on one or the other pretext the respondent used to reside at her parental home, and she refused to stay with

appellant in spite of repeated requests being made to her. Thus, the necessary inference capable of being drawn from this is that, respondentÂwife

withdrew herself from performing marital obligations towards appellantÂ​husband and as such, she subjected husband to mental cruelty.

8.It is submitted that, the wife had admitted in her cross examination that, she was residing separate from husband since 6 to 7 years. Though she tried

to add that whenever husband used to call her during aforesaid period, she went there to help him. First of all, she had not brought any independent

evidence in support of it, and secondly, she deposed exactly opposite, contrary and inconsistent with her own pleading. She categorically stated in her

written statement that, the relatives of husband used to visit her at her mother's house. Thus, her version in her deposition is not trustworthy and full of

contradictions. Thus according to appellant, he proved the factum of separation.

9.It is submitted that, there is no evidence on record that during the period of separation, she had expressed her desire to cohabit with husband in the

light of possible change in circumstances as exist, when she left the husband. On the contrary she had filed two applications in the year 2005 and in

the year 2009, for seeking enhancement of maintenance amount without expressing her desire to join the company of husband. It is submitted that, the

husband shown willingness to cohabit with respondent while replying her application seeking enhancement in amount of maintenance. Thus there was

clear intention on her part to bring cohabitation completely to an end.

10.It is further submitted that, it is not necessary that intention to bring cohabitation completely to an end and separation shall coÂexist. The intention

to bring cohabitation completely to an end can be formed subsequently, and the facts involved in present case in hand clearly shows that, her intention

to bring cohabitation completely to an end has been formed subsequently. Without prejudice to the contentions raised hereinabove, it is necessary to

look present case also from the point of view that, the parties are residing separately since more than 15 years and making allegations against each

other. There is no child also, which would act as an catalyst. Attempts at reconciliation proved futile and marriage is otherwise dead emotionally and

practically also. In view of this, it would be just and proper to order decree of divorce. Learned counsel appearing for the appellant has placed reliance

on the reported judgments in the cases of Adhyatma Bhattar Alwar V/s Adhyatma Bhattar, Sri Devi , Lachman Utamchand Kirpalani V/s Meena

alias Mota and Satish Sitole V/s Ganga , and submits that, the Appeal may be allowed.

11.Learned counsel appearing for the respondent wife relied upon the findings recorded in the impugned judgment of the Family Court. It is

submitted that, since the allegations levelled by the husband are vague and general in nature, the Family Court has rightly rejected the Petition filed by

the husband for decree of divorce. It is submitted that, the Family Court has properly appreciated the evidence of the parties and dismissed the

Petition. Learned counsel, therefore submits that, the Family Court Appeal may be dismissed.

12.We have given careful consideration to the submissions advanced by learned counsel appearing for the parties. With their able assistance, we have

perused the original record and proceedings and also the grounds taken in the Appeal.

13.We have carefully perused the evidence led by the appellant. The examination in chief is as per the pleading in the Petition. The evidence of the

husband shows that, after marriage, the respondentwife repeatedly used to visit and stay at her parental house. The appellant tried to bring respondent

back several times, but she did not come. The appellant further deposed that, his grandÂmother is aged about 90 to 91 years and his mother is aged

about 70 years and both are bed ridden. Therefore, there is no possibility to have any illÂtreatment to the respondent at their hands. Inspite of this, the

respondent is not ready to cohabit with appellant. The respondent treated him with mental cruelty, for a long period of 13 years and with a malafide

intention to get separate maintenance allowance, the respondent is refusing to cohabit with him. Since the year 1998, the respondent is residing

separately from the appellant.

14.We have perused the crossÂexamination of the appellant, the appellant has specifically admitted that, his grand father was serving as Assistant

Deputy Commissioner and his grand mother is receiving pension of Rs.4500/Â per month. He further admitted that, his mother is also receiving

pension of Rs.4000/Â per month. He further admitted that, he along with respondent stayed at Kannad for about six months. The appellant has further

admitted that, he is ready and willing to maintain the respondent.

15.The Respondent has examined herself at ExhibitÂ26. In her examination in chief she deposed that, she never visited frequently to her parental

house. She deposed that, her fatherÂinÂlaw and sisterÂinÂlaw used to abuse and assault her. GrandÂmother of the appellant also used to assault

her. She used to tell these facts to the relatives of the appellant, but they used to give understanding to her. She further deposed that, elder brother and

mother of appellant are suffering from mental illness. She further deposed that, she never illÂtreated the family members of the appellant. She further

deposed that, due to illÂtreatment given by the family members of the appellant, she is now residing separately. During the course of crossÂ‐

examination, respondent deposed that, since last 6 to 7 years, she is residing separately from the appellant. When a specific question was put to her by

the appellant, whether she is ready to cohabit with him, respondent stated that, she is not ready to cohabit with him because on the say of his grandÂ‐

mother and sister, he used to ask her to leave the house even at odd hours, he used to assault her on the instigation of her younger sister Manjushri

Purkar.

16.We have already narrated the pleadings of the parties and the evidence tendered by them. The appellant has prayed for divorce mainly relying on

two grounds viz: after marriage, respondent â€" wife has treated him with cruelty, and further she has deserted the appellant. Upon careful perusal

of the entire evidence placed on record, we are of the considered view that, the allegations made by the appellant regarding cruelty are too vague and

general in nature. A decree of divorce on the ground of cruelty cannot be granted on the basis of general allegations, without mentioning the manner in

which the wife has illÂtreated the husband. General allegations that, the wife used to often visit her parental house, she used to harass the appellant

mentally, cannot constitute the cruelty. So far as the allegation that, respondent â€" wife deserted the appellant without any valid reason is concerned,

the appellant has not produced on record any cogent and reliable evidence to that effect. It is the matter of record that, the respondent â€" wife has

filed C.Petition No.44/2001 against the appellant before the Family Court, Aurangabad under section 18 of the Hindu Adoption and Maintenance Act.

In the said Petition, the appellant was directed to pay the maintenance allowance at the rate of Rs.1500/Â per month to the respondent. In the said

Petition, the Family Court has specifically held that, the appellant treated the respondentÂwife with cruelty and therefore, she has justifiable ground to

reside separate from the appellant. Thus, it is clear that, there is no substance in the allegation of the appellant that, the respondent has deserted him

without any valid reason.

17.The Family Court has properly considered the evidence on record to hold that the allegations levelled by the husband against the wife do not

constitute cruelty. The Family Court has rightly held that, the appellant has vaguely contended that, his grandÂmother is aged about 90 to 91 years old

and is bed ridden, however, the appellant has not produced any medical evidence on record to prove the said fact. The Family Court has further

observed that, the appellant has vaguely contended that, respondent treated him with cruelty, however, he has not given any details as to how the

respondent treated him with cruelty. After considering the entire evidence produced on record, the Family Court has rightly came to the conclusion

that, the appellant has failed to prove that, after solemnization of the marriage, the respondent has treated him with cruelty and deserted him without

any lawful excuse.

18.Learned counsel appearing for the appellant in support of his submissions placed reliance upon the exposition of law in the case of Satish Sitole

(supra), wherein the Supreme Court has directed the marriage of the appellant and the respondent therein shall stand dissolved, subject to the appellant

paying to the respondent a sum of Rupees Two Lakhs by way of permanent alimony, in addition to the costs of the appeal amounting to Rs.25,000/Â.

However, the facts of the aforesaid case are altogether different from the facts of the present case. In case cited supra, the wife has given consent

for dissolution of marriage with adequate provision by way of permanent alimony for the respondentÂwife. However, in the present case, the

appellant has failed to bring on record any cogent evidence to show that, the respondent â€" wife has given consent for dissolution of marriage.

19.On appreciation of the entire evidence on record, we find that, the appellant has not established that the respondent â€" wife has treated him with

cruelty and that, she had deserted him without any reasonable excuse.

20.In the light of discussions hereinbefore, we are of the considered opinion that, there is no substance in the appeal. Hence the Appeal stands

dismissed.