Meghraj vs Vaishali

V.A. Naik, J—The Family Court Appeal is Admitted and heard finally with the consent of the parties after perusal of the record and proceedings.

By this appeal, the appellant-husband challenges the judgment of the Family Court, Nagpur, dated 16th June, 2014 dismissing the Hindu Marriage Petition filed by the husband for a decree of divorce on the ground of cruelty and desertion. Since the petition for divorce was dismissed by the Family Court, Nagpur, the petitioner has approached this Court seeking a decree of divorce, dissolving the marriage solemnized between the parties on Few facts giving rise to the appeal are stated thus-

The appellant-husband and the respondent-wife were married in Nagpur according to Hindu Rites and Customs on 03.06.1998. According to the husband, the parties resided in the joint family for a few months only and during the short period, the wife constantly quarreled with the husband. According to the husband, the wife wanted to reside separately from the joint family and hence the husband took some premises on rent in Gokulpeth, Nagpur for their separate residence. According to the husband, the wife neglected him and abused him in filthy language. A male child was born to the parties from the wedlock, by name Prajwal. According to the husband, despite the birth of the child, the attitude of the wife did not change. According to the husband, the wife and her family members ill treated the husband and his family members. It is the case of the husband that the elder brother of the wife is a habitual drunkard and he had assaulted the husband on 19.06.2008 when the husband went to the parental house of the wife. According to the husband, the brother of the wife falsely registered a FIR against him on 19.06.2008 by falsely claiming that the husband and his nephew had assaulted him. It is the case of the husband that on 19.06.2008, the parties quarreled and the wife left the matrimonial home never to return. After the wife left the matrimonial home, the husband filed a petition for restitution of conjugal rights. It is the case of the husband that the said petition was withdrawn as the wife was not willing to reside with the husband. On the basis of the aforesaid case, the husband filed the Hindu Marriage Petition for decree of divorce on the ground of desertion and cruelty.

The wife denied the case of the husband by filing a written statement. All the allegations made by the husband against the wife in respect of cruelty and desertion were denied. The wife pleaded in the specific pleadings that the husband was consuming liquor and was constantly quarreling with her. It was pleaded in the specific pleadings that the husband was in the habit of obtaining loan from several persons and not repaying the same. It was pleaded that the husband did not regularly go to work and some times stayed in the house for the whole day. On 19.06.2008, according to the wife, the husband came to her parental home and assaulted her brother by fists and blows and threatened to kill him. It was pleaded that an offence was registered against the husband in respect of the said incident. It was pleaded that the husband was harassing the wife and the petition filed by him for the decree of divorce on the ground of cruelty and desertion was liable to be dismissed.

On the aforesaid pleadings of the parties the Family court framed the issues and after appreciation of the evidence on record, by the judgment dated 16.06.2014, dismissed the petition filed by the husband.

Shri Chawhan, 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 wife had deserted the husband since 19.06.2008 and is not ready and willing to reside with him. It is submitted that before the Counsellor, in the proceedings for restitution of conjugal rights and also in the present proceedings, the wife was not ready to reside with the husband. It is submitted that at no point of time, any of the relatives of the wife approached the husband to ensure that the matrimonial ties are continued and that the wife should start residing with the husband. It is submitted that before the marriage counselor the wife had demanded a sum of rupees 20 lakhs for giving her consent for the dissolution of the marriage. It is submitted that the evidence of the husband and his witnesses is not considered by the Family Court in the right perspective and due weightage is not given to the evidence of the relative of the wife, that was examined by the husband. The learned Counsel for the appellant relied on the judgments of this Court in the cases of X Vs. Y, (2014) 3 ABR 83 : (2014) 4 BomCR 168 : (2014) 3 DMC 530 ; Arun Vs. Varsha ; Banwarilal Vs. Lata, (2015) 1 ABR 175 : (2015) 1 MhLj 168 ; and Sameer Singh Suresh Singh Suryawanshi v. Savita Sameer Singh Suryawanshi, reported in 2008(3) Civil LJ, 553) to substantiate his submission.

Shri Dharkar, the learned Counsel for the respondent supported the judgment of the Family Court and submitted that the Family Court has rightly appreciated the evidence tendered by the parties to hold that the husband was not entitled to a decree of divorce on either of the grounds mentioned in the petition. It is stated that the husband had admitted in his cross-examination that the petition for restitution of conjugal rights was withdrawn by him on the date on which the wife filed an application for interim maintenance. It is stated that the husband had also admitted in his cross-examination that he had issued a cheque to Ashok Neware for repayment of the debt of Ashok. It is submitted that the evidence of the husband and his witnesses was not trustworthy and the Family Court rightly considered the admissions of the husband and his witnesses in the cross-examination to dismiss the petition. It is submitted that the brother of the husband also admitted in his cross-examination that the father of the wife had given rupees 20 thousand in cash to Ashok Neware in discharge of the liability of the husband. It is submitted that the husband had the habit of securing money from several persons and not repaying it. It is submitted that Ashabai, the witness of the husband, who is incidentally the paternal aunt of the wife, had admitted in her cross-examination that she and her husband were on inimical terms with the father of the wife. It is stated that it is clear from the cross-examination of Ashabai that she was deposing against the wife only because of the strained relationship between her family and the parents of the wife. It is stated that the Family Court rightly found that neither had the wife treated the husband with cruelty nor had she deserted him. The learned Counsel for the respondent-wife prayed for the dismissal of the 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 ---

(i) Whether the husband is entitled to a decree of divorce on the ground of desertion or cruelty ?

(ii) What order ?

To answer the points for determination, it would be necessary to consider the pleadings and evidence of the parties. The pleadings of the parties have been incorporated in the earlier part of the judgment in brief. The husband had entered into the witness box and reiterated the statements of facts pleaded in the petition. The husband admitted in his cross-examination that the complaint for the offence punishable under Sections 294 and 506 of the Indian Penal Code was registered against him at the instance of the brother of the wife. The husband was ignorant whether his father-in-law has filed a case against him. The husband denied the suggestions that he has assaulted his wife and expelled her out of the house. The husband however admitted in his cross-examination that the petition for restitution of conjugal rights was withdrawn by him on the day on which the wife filed an application for interim maintenance. On a reading of the aforesaid admission, it is clear that the husband was not desirous of seeking the restitution of conjugal rights and residing with the wife. It appears that filing of the petition for restitution of conjugal rights was a farce and the petition was withdrawn, no sooner the wife filed an application for interim maintenance. The husband had examined his brother Baban. Though Baban had tried to support the case of the husband in his examination-in-chief, he stated in his cross-examination that he had no idea that the father of the wife had given money to the husband at the time of purchasing flat. He showed ignorance about the husband selling some gold ornaments in the house for purchasing flat. He also admitted that the father of the wife had given rupees 20 thousand in cash to one Ashok Neware for discharging the liability of the husband. It is clear from the admission of the brother of the husband that the husband was in the habit of squandering money and securing money from people, including the father of the wife.

Witness Ashabai had tried to support the case of the husband in her examination-in-chief, however, the admissions of Ashabai in her cross-examination clearly showed that Ashabai was not a trustworthy witness. Ashabai admitted in her cross-examination that she and her husband were not on good terms with the father of the wife as he had issued a legal notice for partition of their ancestral property. She clearly admitted that the relationship between her husband and his two brothers was not good. She admitted that the relations between all the three brothers were strained. From the aforesaid admissions, it is clear that in view of the strained relationship between Ashabai and her husband on one part and the father of the wife and his brother on the other, Ashabai had entered into the witness box to falsely support the case of the husband. The Family Court rightly held that the husband had utterly failed in proving that the wife had treated him with cruelty and had deserted him. While holding so, the Family Court also considered the evidence of the wife. In her cross-examination, the wife had clearly stated that she had attempted to join the company of her husband by calling him on telephone. Though the wife has admitted that she had given an offer of rupees 20 lakhs for divorce before the mediator, the admission to the aforesaid effect would not entitle the husband to a decree of divorce on the ground of desertion. Since the husband was not ready to take the wife to the matrimonial home, the wife could have extended the offer of rupees 20 lakhs in lieu of divorce, which she must have thought in the circumstances of the case, was an impossibility. We find that the Family Court had rightly appreciated the evidence of the parties to hold that both the grounds on which the husband had sought the decree of divorce were not proved by him. The Family Court found on the basis of the record that the husband had neglected the wife and his two sons and was not providing for their maintenance. The Family Court found that the husband had obtained loan from several persons and was not repaying the same. It was found that the husband had come to the parental home of the wife and assaulted her and her brother and hence a complaint was lodged against him on 19.06.2008. The Family Court found, on the basis of the evidence on record that the wife had neither deserted the husband nor treated him with cruelty. The Family Court found that the husband was not desirous of seeking the restitution of conjugal rights and had withdrawn the petition on the date on which the wife filed an application for interim maintenance. The approach of the Family Court in deciding the petition appears to be just and proper. The judgments in the cases of X.v. Y,; Arun Narayanrao Marathe v. Varsha Arun Marathe; Banwarilal Shriram Sharma v. Lata Banwarilal Sharma; and Sameer Singh Suresh Singh Suryawanshi v. Savita Sameer Singh Suryawanshi, (cited supra) and relied on by the Counsel for the appellant cannot be made applicable to the facts of the case. We find on an appreciation of the evidence on record that none of the grounds, pleaded by the husband, are made out by him on the basis of his evidence. The Family Court was justified in dismissing the petition filed by the husband for dissolution of the marriage by a decree of divorce.

For the reasons aforesaid, the Family Court Appeal is dismissed with no order as to costs.