Prajakta vs Abhay

V.A. Naik, J—The family court appeal is admitted and heard finally with the consent of the learned counsel for the parties after perusal of the record and proceedings.

By this family court appeal, the appellant-wife challenges the judgment of the Family Court, Nagpur, dated 12-8-2013 allowing the petition filed by the respondent-husband for dissolution of the marriage under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.

The marriage between the appellant-wife and the respondent-husband (The parties are hereinafter referred to as "the husband" and "the wife" for sake of convenience) was solemnized at Nagpur on 27-3-2008 according to Hindu rites and customs. The marriage between the parties was an arranged marriage and they cohabited for a period of about 10 months. In the petition filed by the husband for a decree of divorce, it is the case of the husband that the wife behaved well with the husband for a few days after the marriage, but then started treating him with cruelty. It is pleaded that the husband and the wife are educated and come from a good background. It is pleaded that on a couple of occasions, the wife did not take meals and without informing anybody in the matrimonial home, went to her parents'' house at Lakhni. It is pleaded that the husband tried to apprise the wife of her matrimonial obligations, but the wife did not mend her ways. It is pleaded that after the marriage, the wife started complaining about her ill-health and always tried to take rest in the bedroom. It is pleaded that the wife was not interested in doing the household work. It is pleaded that the wife used to complain to the husband about his family members at night and fight with him on petty issues and then used to sleep in the drawing room. It is pleaded that every small and petty matter in the household of the husband used to be informed by the wife to her mother on telephone. The husband pleaded that the parties decided to have a baby but due to weak physical condition of the wife, the foetus had to be terminated. It is pleaded that the wife, however, started blaming the husband and telling her relatives that the husband had forced her to terminate the pregnancy. It is pleaded that the wife left the matrimonial home on 21-2-2009 and in view of the false accusations by the wife, he was forced to lodge a report in the Police Station on 21-2-2009. It is pleaded that the husband and his parents had to secure anticipatory bail on 26-5-2009 due to the threats by the wife of falsely implicating the husband and his family members. Suddenly, according to the husband, the wife came to the matrimonial home on 23-6-2009 only to demand the articles gifted to her at the time of marriage. It is pleaded that the wife threatened the husband and his family members that the uncle of the wife is an Advocate and that they would harass the husband and his family members if the articles are not returned. It is pleaded that certain wild accusations were made against the husband and his parents by the wife when she came to the matrimonial home seeking the articles. It is pleaded that due to the cruel treatment by the wife, the husband could not concentrate on his job and he had to lose his job. The husband sought a decree of divorce on the ground of cruelty.

The wife filed the written statement and denied the case of the husband. The wife pleaded that on 12-2-2009, she was driven out of the matrimonial home by the husband. The wife denied that she had treated the husband with cruelty. All the adverse allegations made by the husband against the wife were denied by her. The wife pleaded in the specific pleadings that the husband and his parents had forcibly terminated her pregnancy. It is pleaded that though the wife wanted to retain the pregnancy, the husband and his mother selected Dr. Mulik''s Hospital, as they had family relations with Dr. Mulik. The wife pleaded that the sister of the husband had divorced her first husband and had re-married in the year 2007. The wife pleaded that the husband was acting under the dictates of his mother. The wife pleaded that "HMV" applies to His Master''s Voice and His Master''s Voice in this case would be the voice of the mother of the husband. The wife pleaded that the husband''s parents were dissatisfied with the articles presented to them at the time of the marriage. It is further pleaded that there was a demand of dowry by the husband and his mother, and since dowry was not paid, there were always quarrels. The wife pleaded that she was driven out of the matrimonial home and she did not leave the company of the husband. The wife sought for the dismissal of the petition filed by the husband.

On the aforesaid pleadings of the parties, the Family Court framed the issues and on an appreciation of the evidence on record, held that the husband was successful in proving that the wife had treated him with cruelty and was entitled to a decree of divorce. The judgment of the Family Court is challenged by the wife in this family court appeal.

Shri Thote, the learned counsel for the wife, submitted that the Family Court was not justified in granting a decree of divorce when most of the allegations made by the husband against the wife were not proved. It is submitted that the Family Court has granted a decree of divorce only on the ground that the wife had falsely claimed that the husband had forcibly terminated her pregnancy and she was unsuccessful in proving the same. It is submitted that only on the basis of the aforesaid fact, even though proved, the Family Court could not have held that the wife had treated the husband with cruelty. It is submitted that the wife had no other alternative but to file a criminal complaint against the husband and his family members for an offence punishable under Section 498A of the Penal Code and the Family Court was not justified in holding that the wife had filed the complaint only with a view to harass the husband and his family members. It is submitted that, in the circumstances of the case, the Family Court ought to have dismissed the petition filed by the husband. It is, however, fairly admitted by the learned counsel that before the Mediator and even before the institution of the proceedings by the wife, the wife was not willing to join the company of the husband and return to the matrimonial home.

Shri Khare, the learned counsel for the husband, supported the judgment of the Family Court and submitted that as soon as the wife received the summons, she filed a false complaint against the husband and his family members in respect of an offence punishable under Section 498A of the Penal Code. It is stated that the wife made a bald statement in regard to the illegal demand of dowry by the husband and his mother in the written statement and failed to substantiate the pleadings. It is submitted that no specific instances were stated by the wife in respect of the demand of dowry by the husband or his mother. It is stated that a suggestion was given to the husband in his cross-examination in regard to the illegal demand of dowry to the extent of Rs. 50,000/-. It is submitted that the unsubstantiated allegations in respect of demand of dowry would tantamount to cruelty. It is submitted that the Family Court has rightly held that the allegation of the wife in regard to the forcible termination of the pregnancy by the husband and his mother was rightly considered by the Family Court as an act of cruelty. It is stated that even otherwise the wife has declined to return to the matrimonial home and join the company of the husband, and in such circumstances, the decree of divorce is not liable to be set aside.

On hearing the learned counsel for the parties and on a perusal of the record and proceedings, it appears that the Family Court was justified in granting a decree of divorce in the petition filed by the husband. The wife had made serious allegations against the husband in respect of the forcible termination of pregnancy by the husband and his mother. The husband had also pleaded in the petition that the wife was informing their relations that she was forced to terminate the pregnancy by the husband and his mother. The Family Court rightly held that the wife was unsuccessful in proving the allegations in regard to the forcible termination of the pregnancy. The wife had examined Dr. Mulik, in whose hospital the pregnancy was terminated. Dr. Mulik has not stated in his evidence that the termination of the pregnancy was a forced one. In fact, Dr. Mulik has proved the consent form signed by the wife as well as the husband. It is the case of the husband that the wife was required to terminate the pregnancy due to her ill-health. The consent form that was signed by the wife and the husband, was duly proved. There is nothing in the cross-examination of the husband, which would disprove his case that the wife had to terminate the pregnancy due to her ill-health. Though the wife had asserted in the written statement that she was forcibly required to terminate the pregnancy, the said fact has not been proved by the wife by tendering cogent evidence. Even Dr. Mulik, who was examined by the wife, has not stated in his evidence that the wife was forced either by the husband or his mother to terminate the pregnancy. The doctor has clearly stated in his evidence that the consent form was signed by the husband and the wife. The doctor has stated that he had entered the name of the wife in the register maintained by him in respect of the termination of pregnancy and also sent the intimation in respect of the same to the Government. It is stated by Dr. Mulik in his cross-examination that he obtained the signatures of the wife and the husband on 17-11-2008. It is apparent from the cross-examination of the doctor that the signature of the wife was secured by him on the consent form and the wife had not complained about any force exerted by the husband or his mother in seeking the termination of pregnancy. In fact, it is clear from the cross-examination of Dr. Mulik that the pregnancy had to be terminated as there was a failure of contraceptives. The Family Court has rightly considered the evidence of the parties, specially the evidence of the doctor to hold that the case of the wife that the husband and his mother forcibly terminated the pregnancy, was false and baseless. According to the Family Court, and rightly so, such accusations by the wife against the husband would tantamount to cruelty.

Apart from proving the aforesaid fact, the husband also proved that the wife had filed a complaint in respect of an offence punishable under Section 498A of the Penal Code against and husband and his family members on 27-7-2009 merely with an intention to harass the husband and his family members. The findings of the Family Court in respect of the harassment by the wife by lodging a false complaint, need to be upheld, as the wife had admittedly left the matrimonial home on 12-2-2009, and between 12-2-2009 and 26-7-2009, admittedly, there were talks of settlement between the members of the two families. After culmination of the talks of settlement on 26-7-2009, it appears that the wife filed the complaint against the husband and his family members on 26-7-2009 in respect of an offence punishable under Section 498A of the Penal Code merely with a view to harass the husband and his family members. Though the Family Court has not held so, we also find that the wife has made reckless and bald allegations against the husband in regard to the illegal demand of dowry by the husband and his mother. These allegations have not been substantiated by the wife at all. Firstly, the allegations are bald and details in regard to the allegations have not been pleaded. Secondly, the allegations are not proved. A suggestion was given to the husband in the cross-examination that he had demanded a sum of Rs. 50,000/- from the parents of the wife, but the husband has denied the suggestion. The paternal uncle of the wife was examined as her witness. This witness has clearly admitted in the cross-examination that in their community, there is no custom of seeking dowry and at the time of the marriage, the husband or his parents had not demanded dowry from the parents of the wife. We find from a reading of the cross-examination of the wife that the husband was treating the wife well, like a normal husband. He used to take her to the movies and restaurants. He had also brought a cake on her birthday and gifted a wrist watch to her. It is clear from the reading of the cross-examination of the wife that she was not treated badly by the husband. Despite the aforesaid position, the wife made reckless allegations against the husband in regard to the illegal demand of dowry and also in regard to the forcible termination of pregnancy, which remain unsubstantiated. The Family Court rightly held, in the circumstances of the case, that the husband was entitled to a decree of divorce on the ground of cruelty. We find that the Family Court has appreciated the evidence in the right perspective and there is no reason to interfere in the findings recorded by the Family Court.

In the result, the family court appeal is dismissed with no order as to costs.