Rajesh Ramkrishna Chaturvedi vs Sandhya and Others

V.A. Naik, J—Since the parties to these Family Court Appeals are the same and since the Family Court, Nagpur has decided the petition fled by the husband for a decree of divorce as also the petition fled by the wife under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and a petition fled by the wife under Sections 18 and 20 of the Hindu Adoptions and Maintenance Act, 1956 by the common judgment, the appeals are heard together and are decided by this common judgment.

The husband had fled a Hindu Marriage Petition in the Family Court under Sections 13(1)(i-a) and (i-b) of the Hindu Marriage Act for a decree of divorce on the ground of desertion and cruelty. So also, the wife had fled a Hindu Marriage Petition against the husband for restitution of conjugal rights. The wife had fled yet another petition under Sections 18 and 20 of the Hindu Adoptions and Maintenance Act for grant of maintenance for herself and her minor daughter.

The marriage between the parties was solemnized at Nagpur on 19th May, 2001 according to Hindu Rites and Customs. It is the case of the husband in the Hindu Marriage Petition for divorce that the wife behaved badly with the husband right from the inception of the marriage and treated him with mental and physical cruelty. According to the husband, the wife was suffering from leukoderma on her right hand in pores of fingers, but the said fact was concealed by her at the time of marriage. It is pleaded by the husband that the wife behaved erratically with the husband and his family members and used to become violent on petty issues. It is pleaded that the wife refused to cook food in the house and used to sleep in the bedroom by locking the door from inside. It is pleaded that within a few months from the marriage, the husband started residing in Bahrain for his job and the wife also joined his company nearly a year thereafter. It is pleaded by the husband that when violent, the wife used to hammer the doors and throw tantrums. According to the husband, the behaviour of the wife disturbed the peace and harmony in the matrimonial home. It is pleaded that in August, 2004, when the wife became pregnant, she started quarreling with the husband for no rhyme or reason. It is pleaded that the wife refused to have physical relationship with the husband and did not talk to him for days together. It is pleaded that though the husband wished to join the company of the wife when she returned to India for her delivery, the wife refused permission to the husband, to do so. It is pleaded that in October, 2005, when the husband came to Pune from Bahrain, he contacted the wife and informed her about his desire to meet her and the child but the wife threatened the husband that if he dares to come to Nagpur, she would implicate him in false criminal cases. According to the husband, the wife had severed the relationship with the husband since August, 2004 and hence the husband was entitled for a decree of divorce on the ground of cruelty and desertion.

The wife fled the written statement and denied the claim of the husband. The wife denied that she was suffering from leukoderma on her right hand. It was denied that the wife treated the husband with cruelty. It was denied that the wife refused to cook for the husband and used to ill treat the mother and sister of the husband. The wife denied that she threw tantrums and abused the husband. Though each and every averments made in the petition was not denied specifically, the wife denied the allegations made in the petition. The wife pleaded that the father and mother of the husband were interfering in the private life of the husband and wife right from the inception of the marriage and at their instigation, the husband had fled the petition for divorce. It was pleaded that the husband had refused to take the wife to the matrimonial home after she returned to India for the delivery of the child. The wife sought for the dismissal of the petition fled by the husband. The wife fled the Hindu Marriage Petition for restitution of conjugal rights pleading therein that though the wife was ready and willing to reside with the husband, the husband had refused to take the wife in the matrimonial home along with the baby girl. The wife claimed monthly maintenance of rupees one lakh for herself and Rs. 50,000/- for the minor daughter by fling a petition under Sections 18 and 20 of the Hindu Adoptions and Maintenance Act.

The Family Court framed the issues in all the three petitions. The parties tendered the evidence, both oral and documentary. The husband examined himself and the wife examined herself and her father and uncle. The Family Court, on an appreciation of the evidence on record, by the common judgment dated 10.08.2011, dismissed the Hindu Marriage Petition fled by the husband for a decree of divorce, allowed the Hindu Marriage Petition fled by the wife for restitution of conjugal rights and partly allowed the petition fled by the wife for maintenance under the provisions of the Hindu Adoptions and Maintenance Act. The husband has fled Family Court Appeal No. 161 of 2014 against the part of the judgment dismissing his petition for divorce, Family Court Appeal No. 162 of 2014 against grant of the decree of restitution for conjugal rights and Family Court Appeal No. 160 of 2014 against the grant of maintenance under Sections 18 and 20 of the Hindu Adoptions and Maintenance Act. The wife has fled First Appeal No. 1014 of 2011 for enhancement of the amount of maintenance.

Shri Naidu, the learned Counsel for the husband submitted that the Family Court was not justified in dismissing the petition fled by the husband for a decree of divorce. It is submitted that most of the allegations levelled by the husband against the wife in respect of her cruel behaviour had not been denied by the wife in her written statement. It is submitted that in Bahrain, the wife had refused to have physical relationship with the husband and the refusal on the part of the wife amounts to cruelty. It is submitted that though the wife was suffering from leukoderma on her right hand, the wife did not disclose this fact to the husband though she was taking medicines for the treatment. It is submitted that the behaviour of the wife was erratic inasmuch as she used to throw tantrums, bang the head and treat the husband and his family members with cruelty. It is submitted that the Family Court did not consider the evidence led by the parties in the right perspective to hold that the husband was unsuccessful in proving that the wife had treated him with cruelty. It is submitted that the husband was entitled to a decree of divorce on the ground of desertion as the wife had left the company of the husband in August, 2004 without any just and reasonable cause and had refused to join his company after she delivered a child. It is stated that if the husband is entitled to a decree of divorce on the ground of cruelty by the wife, as a consequence thereof, the petition fled by the wife for restitution of conjugal rights would be liable to be dismissed. It is submitted that the Family Court has erroneously granted monthly maintenance of Rs. 10,000/- to the wife and the daughter, though the salary of the husband was barely Rs. 40,000/-. It is submitted that the wife is capable of earning as she was working in Bahrain and also in Pune and hence the amount of maintenance payable to the wife and the child should be reduced.

Shri Paliwal, the learned Counsel for the wife supported the judgment of the Family Court and submitted that the Family Court had rightly dismissed the petition fled by the husband for a decree of divorce on the ground that the allegations levelled by the husband against the wife only depicted the normal wear and tear in the matrimony. It is submitted that the husband had been unsuccessful in proving that the wife treated him with cruelty. It is submitted that all was well with the husband and wife till the wife came to India to deliver the child in August, 2004. It is submitted that because the wife delivered a girl child and because the husband was under the influence of his parents who disliked the wife, the husband had fled the petition against the wife for a decree of divorce. It is submitted that the husband had left the company of the wife without any just and reasonable excuse. It is submitted that since the husband failed to prove that the wife treated him with cruelty, the wife was rightly entitled to decree of conjugal rights. It is submitted that the evidence of the husband, in his cross-examination clearly shows that the husband started behaving badly with the wife after she returned to India in August, 2004 to deliver the girl child. The learned Counsel sought for the dismissal of the Family Court Appeals fled by the husband. The learned Counsel sought for higher maintenance to the wife and the child. It is stated that the husband was working in Bahrain and was earning a sum of Rs. 1,25,000/- per month and hence the grant of Rs. 10,000/- to the wife and child was not justified. It is submitted that though the wife is highly educated and is capable of earning, the wife was not able to secure a job and hence this Court may allow the Family Court Appeal (First Appeal No. 1014 of 2011) fled by the wife and grant at least a sum of rupees one lakh jointly for the wife and the child.

On hearing the learned Counsel for the parties and on a perusal of the original record and proceedings, it appears that the following points arise for determination in the Family Court Appeals ---

"(i) Whether the husband has succeeded in proving that the wife treated him with cruelty?

(ii) Whether the husband is successful in proving that the wife has deserted him without any just and reasonable cause.

(iii) Whether the grant of maintenance at the rate of Rs. 10,000/- per month for the wife and the child is just and proper and/or whether it needs to be enhanced or reduced?

(iv) 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. We have already incorporated the pleadings of the parties in the earlier paragraphs of this judgment. The husband had fled the Hindu Marriage Petition for grant of decree of divorce on the ground of cruelty and desertion. According to the husband, the wife suffered from leukoderma on the right hand and she had concealed the said fact at the time of marriage. We, however, find that the husband has not substantiated the said fact by leading cogent evidence. Also, assuming that the wife suffered from leukoderma on her right hand, the husband had continued to live with the wife for a period of nearly four years, after he detected that the wife suffered from leukoderma. The husband admitted in his cross-examination that he became aware after the wife started residing with him that she suffered from leukoderma on her right hand. The Family Court rightly held that the husband had failed to prove that the wife suffered from leukoderma and she had concealed the said fact.

The allegation made by the husband against the wife is that the behaviour of the wife was erratic and cruel. It is alleged that the wife used to quarrel with the husband and his family members and became violent on some occasions. The husband had stated in his evidence that the wife used to lock the bed room from inside and sleep alone and on some occasions she refused to maintain physical relationship with the husband, specially when he was in Bahrain. The said evidence of the husband is liable to be disbelieved and the Family Court has rightly disbelieved the same. The husband had not proved that the wife had refused to have physical relationship with him. The said allegations stood falsified by the fact that the wife was pregnant in the early months of 2004 and had returned to India to her parental home in August, 2004 for the delivery of the child. The evidence of the husband clearly shows that the husband and the wife resided happily at Bahrain till the wife returned to India for delivery in August, 2004. It appears from the evidence that the husband and his family members were displeased as it was detected that the wife was bearing a girl child and not a boy, as desired by the mother-in-law of the wife. The husband had admitted in his cross-examination that there were hot exchanges and altercations between the husband and the father of the wife in April-May, 2002. The husband admitted that his parents were not helpful to his wife and had refused to purchase an air ticket for the wife to travel to Bahrain and join the company of the husband. The husband admitted in his cross-examination that the wife purchased the air ticket through a travel agency and made payment for the air ticket on her own. The husband stated in his evidence that he tried to contact his wife after she returned to India in 2004, but the wife refused to talk to him. This evidence was disbelieved by the Family Court and rightly so, on the basis of the admissions of the husband in his cross-examination and the evidence of the wife and the witnesses examined by her. The husband had admitted that he had no record of the telephone company to show that he had telephonically tried to contact his wife after she returned to India for her delivery. The husband admitted that there was a joint account in the name of the wife and himself in the ICICI Bank and that the entire balance in the said account was withdrawn by him on 14.03.2005. The admissions of the husband clearly show that the husband did not have the intention of staying with the wife and continuing the marital relationship or else, the husband would not have withdrawn the entire balance from the joint account of the wife and himself in the ICICI Bank. The case of the husband that he came to India only once after the birth of the baby girl and though, he had tried to contact his wife and meet her and the baby girl at Nagpur, the wife had threatened him that she would file complaints against him if he tried to meet her, is not worthy of credence and the Family Court has rightly disbelieved the evidence of the husband in that regard. Though, the husband had stated that the wife started behaving badly with the husband and his family members immediately after the marriage, the husband admitted in his cross-examination that for the first couple of years, the husband and the wife resided happily. It is necessary to note that though, the husband had stated in his evidence that he tried to contact the wife on a number of occasions after 2005, there is no cogent evidence in that regard. The husband has not placed any document on record to show that he made efforts to ensure that his wife starts residing in the matrimonial home after giving birth to the baby girl. The Family Court has rightly disbelieved the case of the husband in regard to the cruelty inflicted by the wife. The Family Court held that even if some of the facts mentioned by the husband in his pleadings and stated by him in his evidence were held to be true, still the said acts do not constitute cruelty and they reflect only the normal wear and tear in the matrimonial home. We find from an appreciation of the evidence of the parties that the husband desired to sever the matrimonial relationship after the wife left for India for her delivery. We also find on a reading of the evidence of the husband and his cross-examination and the evidence of the wife and her witnesses that the husband had decided to sever the marital relationship only on the influence of his parents. We find on a reading of the evidence that all was well with the husband and the wife till the wife left for India for the delivery of the child. Till then, the husband and the wife had a joint account in the ICICI Bank and the husband illegally withdrew the entire balance from the said account, when he decided to sever the marital ties with the wife. The Family Court considered the evidence in the right perspective to hold that the husband had been unsuccessful in proving that the wife had treated him with cruelty. While holding so, the Family Court appreciated the evidence of the wife in her cross-examination, wherein she had denied all the suggestions made on behalf of the husband in regard to the ill-treatment by her to the husband. The wife had denied the suggestion that she threatened her husband to implicate him in false cases, if he tried to meet her and the baby girl at Nagpur. The wife had categorically stated in her evidence that the husband stopped talking to her after she returned to India for the delivery of the baby girl. We do not find that the Family Court has committed any error in declining to grant a decree of divorce in favour of the husband on the ground of cruelty. The Family Court rightly held, on the basis of the evidence of the husband, specially his admissions in the cross-examination, that after enjoying the vacation in 2004, they had been to Bahrain and the husband gave proper treatment to the wife after the wife conceived. The approach of the Family Court in deciding the petition fled by the husband for a decree of divorce is just and reasonable. The Family Court rightly held that the husband could not have fled the petition against the wife on the ground of desertion as the husband had refused to take back the wife to the matrimonial home after she delivered the baby girl in the year 2005. There is no scope for interference with the findings recorded by the Family Court in the petition fled by the husband, in his Family Court Appeal. Since, the husband had been unsuccessful in proving that the wife treated him with cruelty and since, the husband had also failed to prove that the wife refused to join the company of the husband after the delivery of the child and had deserted him, the Family Court rightly allowed the petition fled by the wife and granted a decree of restitution of conjugal rights in her favour. While allowing the petition for restitution of conjugal rights, the Family Court held that the husband had refused to join the company of the wife and had not taken her to the matrimonial home after the delivery of the baby girl.

It would now be necessary to consider whether the Family Court was justified in directing the husband to pay a sum of Rs. 10,000/- per month to the wife and the child. The Family Court had granted a sum of Rs. 10,000/- towards monthly maintenance for the wife and the minor daughter. While directing the husband to pay the said amount, the Family Court held that the wife was highly qualified and possessed the degrees of M.Com, M.B.A. and ICWA. The Family Court observed that the wife was doing a job at Pune and also at Bahrain. The Family Court held that the wife was capable of earning and she could have worked to earn her livelihood. The Family Court, however, found that the financial status of the husband was very good as could be depicted from the photographs of the row house, sport bike and the car. The Family Court, therefore, directed the husband to pay a sum of Rs. 10,000/- to the wife and the daughter. Shri Paliwal, the learned counsel for the wife has argued that the amount of maintenance is very meager and the growing needs of the child cannot be fulfilled from the sum of Rs. 10,000/-. It is submitted that despite the best efforts, the wife is unable to secure a job for her livelihood. In our view, it would not be proper to consider the subsequent developments in the First Appeals while considering whether the grant of maintenance by the Family Court at the relevant time was just or not. The wife has a remedy of fling an application under Section 25 of the Hindu Adoptions and Maintenance Act, 1956 to claim higher maintenance for herself and the child in view of the change in circumstances. The wife would be entitled to file an application under the provisions of the Hindu Adoptions and Maintenance Act for modification-alteration of the order of the Family Court by tendering evidence to point out the changed circumstances. It would not be proper for this Court to foreclose the issue in regard to the grant of enhanced maintenance by considering the oral submissions made on behalf of the parties, when they are not supported by any pleadings and documentary evidence. In the circumstances of the case and on the basis of the evidence that was then available on record, it cannot be said that the Family Court committed an error in directing the husband to pay a sum of Rs. 10,000/- to the wife and the child.

In view of the aforesaid, we dismiss the Family Court Appeals with no order as to costs.