Mahadeo vs Gauri and Others

V.A. Naik, J.—By this Family Court Appeal, the appellant-husband challenges the judgment of the Family Court, Nagpur dated 6.12.2006, dismissing the Hindu Marriage Petition filed by the appellant-husband for a decree of divorce and allowing the petition filed by the respondent-wife for grant of maintenance and directing the appellant-husband to pay a sum of Rs. 1,500/- per month to the respondent-wife towards maintenance.

The marriage between the appellant-husband and the respondent-wife was solemnized at Reshimbagh, Nagpur on 19.5.2002 according to the Hindu rites and customs [The parties are hereinafter referred to as the ''husband'' and the ''wife'' for the sake of convenience]. The husband and the wife started residing in the matrimonial home along with the old parents of the husband. The brother of the husband was residing in the adjacent block along with his wife and children. In the petition filed by the husband for a decree of divorce on the ground of cruelty, it is pleaded that the wife behaved badly with the husband and his parents, since the inception of the marriage on flimsy grounds. It is pleaded that the wife used to visit her parental home without any rhyme and reason and without intimating the husband or his parents. It is pleaded that though the husband and his parents did not have any objection to the wife''s visiting her parental home, they desired that the wife should at least inform them before leaving the house. It is pleaded that the wife used to lend a deaf ear to the request made by the husband and his parents in this regard. It is pleaded that the father of the husband was suffering from heart disease and the Doctor had specifically advised that there should be no tension and quarrels as that would result in the deterioration of his health. It is stated that the husband believed that the wife would mend her ways after the child was born, but despite the birth of the male child on 25.02.2003, the wife did not change her behaviour. It is pleaded that the wife secured employment in Hindi Prathmik Shala and after her working hours, she used to directly go to her parental home without informing the husband or his family members. The husband pleaded that whenever the father of the husband tried to impress upon the wife that she should behave properly, the wife created a scene by shouting at him and her mother-in-law. It is pleaded that the wife used to shout on petty issues at the father-in-law, though he was suffering from heart ailment. It is pleaded that the wife quarreled with the father-in-law at the top of her voice, as a result of which, the father-in-law instantaneously died during the quarrel. It is pleaded that at the time of funeral of the father of the husband, the wife quarreled with her sister-in-law on petty issue of throwing the garbage in a water drum. It is pleaded that the wife resided in the matrimonial home till 11.8.2004 and after that she started residing in her parental home, never to return till the second week of October, 2004 with her mother and brother only to carry her belongings. It is stated that after the wife left the matrimonial home, she went to the Police Station to lodge a false report against the respondent and his family members. It is pleaded that the police made an inquiry and did not find any substance in the allegations of the wife and hence a F.I.R. was not registered. It is pleaded that the parties were referred to the Women Cell and the aforesaid incident shows that the wife wanted to falsely implicate the husband and his family members in a criminal case. The husband sought a decree of divorce on the ground of cruelty.

The wife filed the written statement and denied the claim of the husband. Most of the adverse allegations made are denied by the wife in the written statement. She, however, admitted in paragraph 16 of the written statement that she had lodged a false report against the husband, his mother, his brother and sister-in-law in Ganeshpeth Police Station and the matter was referred to the Women Cell to explore the possibility of an amicable settlement. It is pleaded by the wife in the written statement that the husband and his family members treated her with cruelty. It is pleaded that she was not permitted to watch the television. Though it is admitted by the wife that the father of the husband suffered from the heart disease, it is denied by her that she quarreled with him, as a result of which, he died instantaneously. The wife denied that she always left the matrimonial home without intimating the husband and his family members. The wife pleaded that the husband and his family members always asked the wife to bring a sum of Rs. 10,000/- or Rs. 20,000/- from her parents or else they would forcibly secure a decree of divorce and that the husband would remarry. It is pleaded by the wife that her sister-in-law used to interfere in the affairs of the husband and the wife. It is pleaded that the niece of the husband namely Indu was residing in the matrimonial home along with them and she used to interfere in the personal matters of the husband and the wife. The wife sought for the dismissal of the Hindu Marriage Petition. The wife also filed a petition for grant of maintenance.

On the aforesaid pleadings of the parties, the family court framed the issues. The husband examined himself and also examined his next door neighbour Shri Sanjay Bhosale. The wife examined herself and also examined Shri Shaikh Iqbal Shaikh Najim, who resided in the neighbourhood of her parental home. On an appreciation of the evidence of record, the family court dismissed the Hindu Marriage Petition filed by the husband for a decree of divorce on the ground of cruelty by the wife. The family court found that the husband had treated the wife with cruelty. The family court allowed the petition filed by the wife for grant of maintenance and directed the husband to pay a sum of Rs. 1,500/- per month to the wife towards the maintenance.

Shri Bhuibhar, the learned counsel for the appellant-husband, submitted that the family court was not justified in dismissing the petition filed by the husband. It is submitted that the family court did not consider the evidence of the independent witness Shri Sanjay Bhosale, which clearly showed that the wife was fighting with her father-in-law on the top of her voice knowing fully well that he was a heart patient and that the father-in-law instantaneously died on the spot while the fight was on. It is submitted that though the submission on behalf of the husband in this regard is recorded by the family court, there is no consideration of the submission. It is submitted that the wife had admitted in her pleadings and evidence that her father-in-law was suffering from heart ailment and despite the said admission, the family court failed to consider the evidence of the husband in respect of the quarrel between the wife and her father-in-law, which resulted in the death of the father-in-law, as the wife was shouting on the top of her voice. It is submitted that though the evidence of the husband was supported by the evidence of the independent witness, the family court did not advert its mind to the same. It is submitted that the wife had made false and reckless allegations in the written statement in regard to the demand of dowry by the husband and his family members to the extent of Rs. 10,000/- or Rs. 20,000/- without substantiating the same. It is submitted that though there is no pleadings in the written statement that the husband had an affair with his niece Indu and that she had conceived a child through the husband, such questions were posed to the husband in the cross-examination, thereby inflicting cruelty on him. It is stated that the unsubstantiated pleadings in respect of the dowry demand or the evidence in respect of the alleged extra-marital relationship would by themselves tantamount to cruelty. It is submitted that the family court erroneously held that the husband had an affair with Indu though the said fact was not pleaded by the wife in her written statement. It is stated that the family court erroneously gave undue weightage to the fact that the child was born from the wedlock while refusing a decree of divorce in favour of the husband. It is submitted that the observation of the family court that the husband had an affair with Indu is erroneous as the said fact was not pleaded by the wife. It is submitted that the wife had approached the Ganeshpeth Police Station to lodge a false report against the husband and his family members and she had admitted in respect of the filing of the false report in paragraph 16 of the written statement. It is stated that the family court was not justified in holding that the behaviour of the husband was not such that would result in cruelty to the husband and that the instances relied on by the husband reflected only the wear and tear in a normal matrimonial home. It is submitted that after the family court directed the husband to pay a sum of Rs. 1,500/- per month to the wife, the wife had filed an application for enhancement of the amount and the application under Section 127 of the Criminal Procedure Code is allowed. It is stated that the wife mischievously filed the proceedings against the husband under the Protection of Women from Domestic Violence Act more than eight years, after she left the matrimonial home and the same are dismissed. It is stated that the conduct of the wife in lodging the proceedings, after a period of eight years, clearly shows that the wife treated the husband with cruelty and it is not possible for him to reside with her under one roof.

Shri Kurekar, the learned counsel for the respondent-wife, supported the judgment of the family court and submitted that the family court was justified in dismissing the petition for divorce as the husband had failed to prove that the wife had treated him with cruelty. It is stated that merely because the wife went to her parental home to visit her parents it could not be said that she had treated the husband and his family members with cruelty. It is submitted that the husband did not examine his mother or any other witness to prove that the wife was behaving badly with his parents. It is submitted that the family court rightly held that the fight between the wife and her sister-in-law was not proved by the husband, as he had not examined any witness, though several persons were present at the funeral. It is submitted that the wife had categorically pleaded that Indu, the niece of the husband, was interfering in their personal life and the family court, therefore, rightly held that she had an affair with the husband. It is submitted that the wife was constrained to approach the Police Station to lodge a report against the husband, as he and his family members were ill-treating her. The learned counsel sought for the dismissal of the family court appeal.

On hearing the learned counsel for the parties and on a perusal of the record and proceedings, it appears that the following points arise for determination in this family court appeal :

[1] Whether the husband has proved that the wife had treated him with cruelty?

[2] Whether the husband is entitled to a decree of divorce on the ground of cruelty?

[3] 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. It would not be necessary for us to reiterate the pleadings of the parties, as we have already narrated the pleadings in the earlier part of the judgment. In support of his case, the husband entered into the witness box and reiterated the facts pleaded by him in the Hindu Marriage Petition, in his examination-in-chief. The husband was cross-examined at length on behalf of the wife. However, there is nothing in the cross-examination of the husband which falsifies his statements in his examination-in-chief. The husband had denied that before his marriage, there was a maid-servant in the matrimonial home, but after his marriage, they removed the maid and asked the wife to perform all the domestic work. The husband admitted in his cross-examination that the wife had filed a complaint in the Women Cell. He, however, denied that the wife had shown his willingness to join his company but he is refused to take her. The husband stated in his cross-examination that he was not ready to accept the wife in view of her cruel behaviour. The husband admitted in his cross-examination that Indu, the daughter of his maternal uncle, was unmarried and she resided in the matrimonial home for most of the time due to illness of his mother. The husband denied that he had a love affair with Indu and desired that she should live with him in the matrimonial home. It was denied by the husband that Indu had to abort the child that she had begotten from the illicit relationship between him and Indu. He further denied the suggestion that after a complaint was made to the parents of Indu about the love affair, they removed her from the matrimonial home and beat the husband. The husband denied the suggestion that he had threatened the wife for divorce as he wanted to marry Indu. The husband denied the suggestion that he had made a false statement that the wife had quarreled at the funeral of his father. The husband denied that he had demanded a sum of Rs. 10,000/- or Rs. 20,000/- from the parents of the wife. The husband denied the suggestion that he was deposing falsely before the court.

The husband examined his neighbour Shri Sanjay Bhosale. This witness clearly stated in his examination-in-chief that the wife was quarreling with a father-in-law and the family members tried to pacify her. The witness stated in his evidence that the father of the husband suffered a massive heart attack and died on the spot, while the wife was fighting with him. It was stated that when they were returning from the funeral, there was a quarrel between the wife and her in-laws, as the children of his brother had thrown some waste items in the water drum. The witness was cross-examined on behalf of the wife. He denied the suggestion that he had met his Advocate, before entering into the witness box. He stated that he was not aware, whether the wife wanted to reside with the husband. He denied the suggestion that the husband and his family members used to quarrel with the wife, though she behaved properly and she was dragged out of the matrimonial home. The witness denied the suggestion that he was deposing falsely before the court.

The wife entered into the witness box and reiterated the facts pleaded by her in the written statement. In her cross-examination, the wife admitted that she had not lodged any complaint to the Police Station when a demand of Rs. 20,000/- was made by the husband from her parents. The wife admitted in her cross-examination that she used to watch television sometimes. The wife admitted that her father-in-law had expired on 28.7.2004 due to heart attack, but denied the suggestion that it was due to the quarrel between herself and her father-in-law. The wife denied that she quarreled with her in-laws at the time of the funeral of her father-in-law. Though the wife initially denied that she had lodged a complaint to the Ganeshpeth Police Station against the husband and his family members, she admitted in her cross-examination that she went to the Mahila Cell on the say of the Police Station Officer of Ganeshpeth Police Station. The wife admitted in her cross-examination that Indu is the daughter of the maternal uncle of her husband and her mother-in-law was suffering from joint pain when Indu resided in the house. The wife, however, denied that Indu was living in the house to look after her mother-in-law.

The family court considered the evidence of the parties to hold that the husband had an affair with Indu. The family court failed to consider that there was no pleading whatsoever in the written statement about the affair of the husband with Indu. The wife had only pleaded in the written statement that Indu, the niece of the husband, was meddling in the personal affairs of the husband and wife. The family court, however, considered the evidence of the wife, which was sans pleadings, to hold that the husband had an affair with his niece Indu and that after she conceived a child through the husband, she was removed from the matrimonial home by her parents. The family court should have discarded the evidence of the wife in her examination-in-chief and the evidence in the cross-examination of the husband in respect of his affair with Indu, specially when the wife had not pleaded about the affair in the written statement. The approach of the family court in considering the evidence which ought not have been considered in respect of the serious allegations, clearly shows that the family court has not appreciated the evidence in the right perspective. The family court also failed to consider that the wife had levelled false allegations against the husband and his family members that they were not permitting her to watch the television. The wife clearly admitted in the cross-examination that she watching the television sometimes and that falsified her pleading in that regard. The wife had made allegations in respect of the demand of dowry by the husband to the extent of the amount of Rs. 10,000/- or Rs. 20,000/- from the parents of the wife, but the allegations were not proved by tendering cogent evidence. The family court did not record a finding that the husband had demanded a sum of Rs. 10,000/- or Rs. 20,000/- from the parents of the wife, as dowry. When the wife had failed to prove the serious allegations in respect of the dowry demand, the family court ought to have held that the serious unsubstantiated allegations amounted to cruelty. It is rightly submitted on behalf of the husband that the unsubstantiated allegations in respect of dowry demand or the affair/illicit relationship would by themselves amount to cruelty. The wife had levelled reckless allegations against the husband in respect of his affair with Indu, though she had not pleaded about the affair in the written statement. So also, the wife had made serious allegations of dowry demand against the husband and his family members without proving the same. Though the wife had initially denied that she had gone to the Ganeshpeth Police Station to lodge a complaint against the husband and his family members, the wife admitted in the cross-examination that she was referred by the Police Station Officer of Ganesh Police Station to the Mahila Cell, in respect of the complaint. It was necessary for the family court to consider the admission of the wife in paragraph 16 of the written statement that she had lodged a false report against the husband and his family members in Ganeshpeth Police Station and that the parties were referred to the Mahila Cell to consider settlement.

Apart from the aforesaid wrongful appreciation of the evidence by the family court in respect of the observations made hereinabove, the family court failed to consider the case of the husband that his father died instantaneously of a massive heart attack, while the wife was shouting at him at the top of her voice. The wife had admitted in her written statement that her father-in-law was suffering from a heart problem and the doctor had advised that there should be no quarrels and fights which would disturb the father-in-law. The evidence of the husband was supported by the evidence of Shri Sanjay Bhosale, the next door neighbour of the husband, whose room was just opposite the room of the parties, as admitted by him in his cross-examination. This witness had clearly stated in his examination-in-chief that he was present when the wife was shouting at the top of her voice at the father-in-law and the father-in-law died instantaneously. Nothing was brought out from the cross-examination of Shri Sanjay Bhosale which could falsify his evidence in his examination-in-chief. The family court, however, did not give due weightage to the evidence of the husband and Shri Sanjay Bhosale in respect of the quarrel by the wife with her father-in-law at the time of his death. The family court wrongly discarded the evidence in regard to the fight between the wife and her sister-in-law during the funeral of her father-in-law on the ground that the husband had failed to examine a witness. Shri Sanjay Bhosale was himself a witness of that incident. He had stated in his examination-in-chief that the wife unnecessarily fought with her in-laws on a petty issue in respect of throwing of waste items by the children of the brother of the husband in the drum. The family court, however, did not consider that Shri Sanjay Bhosale was examined to prove the quarrel between the wife and her sister-in-law during the funeral of the father of the husband. We find, on an appreciation of the evidence on record that the husband has sufficiently proved that the wife treated him with cruelty by quarreling with the father-in-law at the top of her voice which resulted in his death, by levelling false allegations in respect of dowry demand without proving the same, by levelling serious allegations in respect of illicit affair of the husband with Indu, though the said fact was not pleaded in the written statement and by lodging false report against the husband and his family members in the Police Station. The family court did not appreciate the evidence in the right perspective and considered the evidence that was sans pleadings. The family court also gave undue weightage to the fact that a child was born to the parties from the wedlock. This aspect would have been relevant had the wife had not treated the husband with cruelty by levelling false and baseless allegations against him in respect of dowry demand and illicit relationship with Indu. On an appreciation of the material on record, we find that the wife had treated the husband with cruelty and it is not possible for the husband to live with the wife under one roof.

Hence, for the reasons aforesaid, the Family Court Appeal is allowed. The judgment of the Family Court, dated 6.12.2006 is hereby set aside, as far as the rejection of the petition of the husband for decree of divorce is concerned. The Hindu Marriage Petition filed by the husband for a decree of divorce is allowed. The marriage solemnized between the parties on 19.5.2002 is hereby dissolved by a decree of divorce. The husband would, however, be liable to pay the amount, as directed to be paid in pursuance of the order passed by the Family Court under Section 127 of the Code of Criminal Procedure, as permanent alimony. In the circumstances, there would be no order as to costs.