Rambhau vs Yashoda

V.A. Naik, J—By this Family Court Appeal, the appellant-husband challenges the judgment of the Family Court, dated 21.03.2006, dismissing a petition filed by the appellant-husband for a decree of divorce under Section 13[1][ia] and [ib] of the Hindu Marriage Act, 1955.

Few facts giving rise to the Family Court Appeal are stated thus --

"The appellant-husband filed a Hindu Marriage Petition against the respondent-wife for a decree of divorce under Section 13[1][ia] and [ib] of the Hindu Marriage Act. The marriage between the parties was solemnized on 30.04.1979 at Juni Mangalwari, Nagpur, according to Hindu rites and customs. It is pleaded in the Hindu Marriage Petition that the respondent initially showered all her love and affection on the husband and in reciprocation, the husband also treated his wife with love and affection. It is pleaded that the husband and wife had a good marital life till 1993, and 4 children were born from the said wedlock. The husband pleaded that all was fine in the matrimonial home till September, 1993 when the wife started quarrelling with the husband without any reason. The wife always quarreled with the children and also assaulted the children on a number of occasions. It is pleaded that the wife wanted to sever the ties with the husband. It is pleaded that since the husband was working as a postman, he used to leave the house in the morning and come back in the evening. Though it is pleaded that the husband always asked the wife from September, 1993 as to what was the problem with her, and why she had stopped talking with him and avoiding the children, the wife did not answer, in response. It is pleaded that the husband believed that the wife was thinking about something else and she had isolated herself from the husband and the other family members and her children. It is pleaded that the wife started refusing physical relationship with the husband since September, 1995. It is pleaded that the husband was not able to gather the reason for the dramatic change in the behaviour of the wife for the period from September 1993 till 05.12.1995. It is pleaded that on 05.12.1995 when the husband was about the leave for his job, his neighbour Shri Ganpat Nandankar and his wife called the husband. The husband was informed during the course of conversation by Mr. and Mrs. Nandankar, that his wife had illicit relationship with their son Manohar, who was barely 19 years of age, at the relevant time. It is pleaded that the parents of Manohar requested the husband with folded hands that he should prevent his wife from maintaining the illicit relationship with their son. It is pleaded that when the husband returned home at about 7 p.m., the parents of Manohar again called him and asked him to come to the Maroti Temple. It is pleaded that the parents of Manohar had not only called the husband, but, had also called some reputed persons from the locality namely Uttam Dhakate, Ishwar Bhangde, Dayaram Mohankar, Ghanshyam Mohankar to the Maroti Temple. It is pleaded that all the persons present in the meeting informed the husband that his wife had spoiled the life of young Manohar. It is pleaded that the husband was asked to bring his wife to the Maroti temple and though she was reluctant, she was brought to the place of meeting. It is pleaded that Manohar was also asked to remain present in the Maroti temple and Manohar admitted in the presence of all the respectable persons that he was guilty of maintaining sexual relationship with the wife. It is pleaded that the persons present in the meeting asked the husband that his wife should stop the illicit relationship with Manohar. It is pleaded after the husband and the wife returned home, the husband and the wife had a big quarrel and the wife flatly told the husband that she was not interested in residing with him and left the house at about 9 p.m., along with her belongings. It is pleaded that the wife has not returned to the matrimonial home after 05.12.1995 and there is no cohabitation between the parties since then. It is pleaded that the wife had also filed proceedings under Section 125 of the Criminal Procedure Code and the husband is paying monthly maintenance to the wife regularly. It is pleaded that with a view to harass the husband, the wife filed a case against the husband for an offence punishable under Section 494 of the Penal Code, but, after recording the statement of the wife, the husband was discharged. It is pleaded that after the wife left the matrimonial home on 05.12.1995, she never looked back and never visited her matrimonial home to see her children. On the aforesaid pleadings, the husband sought a decree of divorce on the ground of cruelty and desertion."

The wife filed her written statement and denied the claim of the husband. It is pleaded by the wife that the husband had illicit relationship with Smt. Yashoda Daire since 1996, and therefore, she had lodged a complaint against the husband on 14.06.1997 in respect of the illegal marriage of the husband with Yashoda Daire. It is pleaded that the husband has levelled wild and reckless allegations against her with a view to get rid of her. The wife denied that she quarreled with the husband after September, 1993 and was not interested in him. It was admitted by the wife that she was residing separately since 05.12.1995, but according to her, she was forced to do so, as she was thrown out of her matrimonial home, by the husband.

On the aforesaid pleadings of the parties, the Family Court framed the issues. The husband examined himself and also examined Dayaram Mohankar and Uttam Dhakate, who were present in the meeting in the Maroti Temple on 05.12.1995. The wife examined herself and closed the evidence on her side. On an appreciation of the evidence on record, the Family Court, by the judgment dated 21.03.2006, dismissed the Hindu Marriage Petition filed by the husband.

Ms. Prabhu, the learned Counsel for the husband submitted that the Family Court was not justified in dismissing the Hindu Marriage Petition when the husband had tendered cogent evidence in support of the cruel treatment meted out to him by the wife. It is submitted that the reasons recorded by the Family Court in the judgment for disbelieving the case of the husband are ridiculous. It is submitted that the evidence of the independent witnesses like Dayaram Mohankar and Uttam Dhakate has been disbelieved only on the ground that it was stated by Dayaram in his evidence that 20-30 persons of the locality were present in the Maroti Temple; whereas Uttam Dhakate has stated that there were 20-25 persons present in the meeting in the Maroti Temple. It is stated that the reason for disbelieving the version of the two independent witnesses examined on behalf of the husband is unreasonable. It is submitted that the Family Court wrongly disbelieved the case of the husband in respect of the illicit relationship of the wife with Manohar on the admission of the witnesses in their cross examination that they had not seen Manohar and the wife in a compromising position. It is submitted that the husband has not sought a decree of divorce on the ground of adultery and the same was sought on the ground of cruelty and desertion. It is submitted that while seeking a decree against his wife on the ground of cruelty, it would not be necessary for a husband to prove that either he or somebody had actually seen the wife in a compromising position with the third person. It is submitted that the Family Court erroneously came to the conclusion that it was difficult to believe that the wife was only 8 to 10 years when she had delivered her first son, as the husband had admitted in the cross examination that the wife was 24 years of age, when she had relationship with Manohar. It is submitted that the husband had categorically stated that the age of wife was nearly 34-35 years at the relevant period from 1993-95 and the Family Court was not justified in giving undue weightage to the incorrect recording of age of the wife as 25, in the cross-examination. It is stated that the Family Court did not give due weightage to the fact that the wife had filed false criminal proceedings against the husband for an offence punishable under Section 494 of the Penal Code and the husband was discharged in the said proceedings, as the wife was unable to tender any evidence for framing of the charge. It is submitted that the case of the wife that the husband had developed the illicit relationship with Smt. Yashoda Daire in 1996, and therefore, he had made false allegations against the wife, falsifies the case of the wife as the incident in the Maroti Temple took place on 05.12.1995, and even according to the wife, the husband had developed relationship with Smt. Yashoda Daire in 1996. It is submitted that the fact that the wife did not seek custody of a single child, clearly goes to show that the husband has been successful in proving that the wife had treated him with cruelty and the husband was humiliated and disreputed in the presence of 20-25 persons in the meeting on 05.12.1995. It is submitted that all the 4 children reside with the husband and none of the children have ever desired to go to the wife. It is submitted that if the husband really had any illicit relationship with Smt. Yashoda Daire, or if he had illegally married Smt. Yashoda Daire, he would not have taken all the 4 children along with him. It is submitted that the parties have separated since 05.12.1995 and there is no cohabitation for a period of nearly 20 years. It is submitted that in the circumstances of the case, the Family Court ought to have granted a decree of divorce on the ground of cruelty as well as desertion.

Shri Sen, the learned Counsel for the wife supported the judgment of the Family Court and submitted that the Family Court had rightly considered the evidence of the parties before dismissing the Hindu Marriage Petition. It is submitted that in the proceedings filed by the wife against the husband under Section 125 of Criminal Procedure Code, the husband had not pleaded that the wife had illicit relationship with Manohar. It is stated that false and wild allegations are made by the husband against the wife only to conceal his illegal marriage with Smt. Yashoda Daire and to seek the decree of divorce. It is stated that none of the children has been examined by the husband to prove the case of the husband. It is stated that Manohar or his parents are neither joined as parties to the petition, nor are they examined by the husband in support of his case. It is submitted that in the absence of examination of Manohar or his parents, the Family Court has rightly held that the case of the husband was not proved.

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 appeal:--

"(i) Whether the husband has proved that the wife had treated him with cruelty?

(ii) Whether the husband has proved that the wife had deserted him on 05.12.1995?

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

(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. It would not be necessary to reproduce the pleadings of the parties, as we had elaborately referred to them in the initial part of the judgment. In support of his case the husband has examined himself. The facts stated in the pleadings were reiterated by him in his examination-in-chief. The husband was cross-examined on behalf of the wife. The husband had stated in his cross-examination that the wife was residing separately from him since 05.12.1995. The husband denied the suggestion that the wife had filed the petition for maintenance because he had driven her out of the matrimonial home after beating and abusing her. The husband denied the suggestion that he had illicit relationship with Smt. Yashoda Daire from the year 1996 and therefore, he had beaten the wife and drove her out of the matrimonial home. The husband denied that he had falsely alleged that his wife had illicit relationship with the son of Mr. Nandankar aged about 19 years. The husband has stated in his cross-examination that he cannot examine Mr. and Mrs. Nandankar as he was not on talking terms with them. The husband stated that he was not inclined to examine Manohar with whom his wife had illicit relationship. The husband stated in his cross-examination that immediately after the incident, dated 05.12.1995, the wife left the matrimonial home. It was denied in the cross-examination that he drove his wife out of the matrimonial home. The husband admitted that the wife had filed a criminal complaint under Section 494 of Criminal Procedure Code and he was discharged.

The husband examined Dayaram Mohankar in support of his case in respect of the meeting called by the parents of Manohar in the Maroti Temple on 05.12.1995. It was stated by this witness in his examination-in-chief that nearly 20 to 30 persons from the locality were present in the meeting in the Maroti Temple. It is stated by the said witness that the parents of Manohar had made serious allegations against the wife and Manohar, and it was admitted by Manohar and the wife in the said meeting that they had illicit relationship. It is stated by this witness in his evidence that all the persons present in the meeting in the Maroti Temple asked the husband to control his wife and if the wife continues to misbehave, he would be required to face the consequences. Dayaram Mohankar was cross-examined on behalf of the wife. He stated in his cross-examination that he was residing only 5 to 6 houses away from the house of the husband. It was admitted by him in the cross examination that the parents of Manohar had called him at about 8 to 8.30 p.m. on 05.12.1995 for the meeting. It was denied by Dayaram Mohankar that he was never called by Manohar''s parents in the Maroti Temple. He stated in his cross-examination that Manohar was present in the meeting and the wife was also present. It was admitted that Manohar was only 19 to 20 years of age and the wife was older than him, at the relevant time. The witness denied the suggestion that the husband did not have any grievance against his wife, despite her relationship with Manohar.

Apart from Dayanand Mohankar, who is an independent witness, the husband also examined Uttam Dhakate, who appears to be a friend of Manohar, in support of the case of the husband in respect of the meeting, dated 05.12.1995. Uttam Dhakate also stated in his evidence that he was present in the meeting in the Maroti Temple and about 20 to 25 persons from the village were present there. It was stated by Uttam Dhakate that he was present in the meeting and he was friend of Manohar. He stated that the parents of Manohar told in the meeting that the husband should keep his wife in his house and prevent her from having illicit relationship with Manohar. Uttam Dhakate was cross examined, however, nothing came out from his cross examination to disbelieve his statements in the examination-in-chief. The witness reiterated in his cross-examination that Manohar is his friend. He stated that he was not knowing about the illicit relationship between the wife and Manohar and that he had not seen Manohar and the wife in a compromising position. He denied the suggestion that he was deposing falsely with a view to support the case of the husband.

The wife examined herself and was cross-examined at length on behalf of the husband. She admitted that the parties resided together for some time and since 1995, they were living separately. The wife admitted that all the children are residing with the husband. The wife denied the suggestion in regard to the calling of the meeting in the Maroti Temple on 05.12.1995. She denied all the suggestions in respect of holding of the meeting on 05.12.1995, and also about the quarrel between the husband and herself on the said date. The wife, however, admitted that she had lodged a complaint against her husband for the offence punishable under Section 494 of Penal Code, because the husband had performed a second marriage. The wife stated that she was not aware whether the husband was acquitted in the said case. The wife admitted that she was living separately with her relatives for the past 9 years. The wife admitted that she has not mentioned in her pleadings that the husband was having illicit relationship with other woman.

It is clear from the aforesaid evidence of the parties that the evidence tendered by the husband is more weighty and acceptable as compared to the evidence tendered by the wife. It is necessary to note that the husband has not sought a decree of divorce on the ground of adultery by the wife and it was therefore, not necessary for the husband to join Manohar as a party to the Hindu Marriage Petition. It is the case of the husband that the husband and the wife were living happily in the matrimonial home till September, 1993 when the wife suddenly changed her behaviour. It appears from the pleadings of the husband and also his evidence that despite the queries by the husband in respect of the changed behaviour of the wife, she did not inform him anything. It is pleaded by the husband that the wife continuously quarreled with the husband after September 1993, and also scolded the children and gave them a beating without any just or reasonable cause. It appears from the evidence of the husband that all was well in the matrimonial home for nearly 13 years from the marriage. It is specifically pleaded by the husband and also stated by him in the evidence that on 05.12.1995, the husband was called by the parents of Manohar, his next door neighbour and was informed about the illicit relationship between the wife and son Manohar. It is the case of the husband that the husband was called by Manohar''s parents after he returned from his duties as postman on 05.12.1995 to remain present in the Maroti Temple. It is the case of the husband that nearly 20 to 30 respectable persons were present in the Maroti Temple and Manohar''s parents confronted the husband in respect of the illicit relationship between his wife and Manohar. We may not have believed the case of the husband had the husband not examined the two independent witnesses in support of his case of the humiliation faced by the husband in the meeting in the Maroti Temple on 05.12.1995. Two independent witnesses have been examined by the husband in support of his case that the meeting was called on 05.12.1995 near the Maroti Temple and in the said meeting, the husband was admonished by the parents of Manohar in view of the illicit relationship between his wife and Manohar. The Family Court has disbelieved the evidence of the independent witnesses on a reason which cannot appeal to any reasonable man. The Family Court had disbelieved the two independent witnesses only because Dayanand Mohankar had stated in his evidence that 20 to 30 persons were present in the meeting, whereas Uttam Dhakate had stated that 20 to 25 persons were present in the meeting. We fail to understand as to how a minor and insignificant discrepancy in regard to the number of persons present in the meeting would result in disbelieving the evidence of the witnesses. Normally, if a person is asked as to how many persons were present in a meeting, one of the persons present in the meeting may say that about 15 to 20 and other may say about 18 to 22. Nothing would turn on such a statement made by the witness in respect of the number of persons present in the meeting as that is not a material fact. We find, as is rightly submitted on behalf of the husband that the reason recorded by the Family Court for disbelieving the two independent witnesses is ridiculous. A trifle and insignificant discrepancy would not result in disbelieving an independent witness. The husband had examined two independent witnesses to prove his case in respect of the meeting, dated 05.12.1995 near the Maroti Temple and as to what transpired in the meeting. In our view, there is no material discrepancy in the evidence of the two independent witnesses in respect of the relevant facts and the insignificant discrepancy in respect of the number of people present in the Maroti Temple in the meeting would not result in disbelieving the witnesses. The Family Court has erroneously rejected the case of the husband that the wife had treated him with cruelty on the ground that neither the husband nor the two independent witnesses had stated that they had seen the wife and Manohar in a compromising position. We reiterate that the husband has not filed a petition for divorce on the ground of adultery and has filed the same on the ground of cruelty and desertion. It is the case of the husband that the wife and Manohar admitted in the meeting, dated 05.12.1995 that they were involved in the illicit relationship and the husband suffered great mental trauma in view of his humiliation in the meeting. We find, on a reading of the evidence of the husband and the two independent witnesses that the petitioner has proved his case that the wife had treated him with cruelty. The husband had categorically pleaded in the petition and had also stated in his evidence that since September, 1993 the behaviour of the wife with the husband was not normal. It appears from a reading of the evidence of the husband which is not falsified by his evidence in his cross-examination that the wife was trying to keep herself away from the company of the husband from September, 1993, that she refused to talk to the husband that she argued with him without any reasonable cause, that she shouted on the children without any rhyme or reason and even assaulted them on some of the occasions. On the basis of the evidence tendered by the husband and his two independent witnesses, it can be gathered that the husband had reason to believe that his wife was disinterested in him because of her relationship with Manohar, as noticed by the husband on 05.12.1995. With a view to overcome the case of the husband, it appears that the wife filed a complaint against the husband for an offence punishable under Section 494 of the Penal Code and the Criminal Court discharged the husband, after recording the statement of the wife and finding that no material could be placed by the wife before the Court for framing of the charge. It is apparent from the order passed by the Criminal Court in the proceedings against the husband for an offence punishable under Section 494 of the Penal Code that the complaint made by the wife against the husband in respect of his second marriage was false and baseless. Also, it is necessary to note that the wife had clearly pleaded in her written statement and also stated in her evidence that the husband had developed the relationship with Smt. Yashoda Daire in the year 1996. The alleged relationship of the husband with Smt. Yashoda Daire could not have been the cause of the husband and the wife separating on 05.12.1995. Admittedly, the parties have separated on 05.12.1995 and there was no cohabitation between the parties after the said date. Be that as it may, the case of the wife that the husband wanted to get rid of the wife in view of his relationship with Smt. Yashoda Daire that was developed in the year 1996, falls to the ground. The Family Court did not consider the evidence of the parties in the right perspective before holding that the husband had been successful in proving that the wife had treated him with cruelty. It appears from a reading of the evidence of all the witnesses that the husband and the wife stayed happily in the matrimonial home till September, 1993 when the wife started behaving indifferently with the husband. It is necessary to note that though four children are born from the wedlock, none of the children have accompanied their mother. The wife has not filed any proceedings for the custody of any of her children. This clearly lends support to the case of the husband that the wife has left the matrimonial home after the fight with the husband on 05.12.1995 in view of the happenings in the meeting, dated 05.12.1995 near the Maroti Temple. The Family Court rejected the case of the husband by recording reasons which would not appeal to any reasonable man. The Family Court erroneously held that the husband had filed the petition after the wife filed the proceedings against the husband in respect of his illegal marriage with Smt. Yashoda Daire. The Family Court has not recorded any reasons much less any cogent reasons while holding that the husband was taking advantage of his own wrong and hence, he was not entitled to a decree of divorce. The reasons recorded by the Family Court for disbelieving the independent witnesses and disbelieving the case of the husband are clearly erroneous. The Family Court was not justified in holding that the husband had not examined any respectable person from the society or his family members to show that his status was lowered in view of the happenings in the meeting, dated 05.12.1995. The observation made by the Family Court in this regard is clearly erroneous, as the husband had examined two independent witnesses, Shri Dayaram Mohankar and Shri Uttam Dhakate to prove the meeting called by the parents of Manohar on 05.12.1995 which was attended by more than 20 persons of the locality. It was not possible for the husband to examine Manohar or his parents, as submitted on behalf of the wife. Firstly, the husband and Manohar and his parents were not on talking terms and secondly they would not have entered into the witness box to admit the illicit relationship. It would be ridiculous to submit that the husband should have examined his children to prove the infidelity of the wife. In our view, the examination of two independent witnesses by the husband, was sufficient. On a reading of the evidence, we find that the approach of the Family Court in deciding the Hindu marriage petition filed by the husband was not just and reasonable. The Family Court ought to have held that the wife had treated the husband with cruelty. In our view, the husband is successful in proving that the wife had treated him with cruelty, though we find that the case of the desertion is not proved.

Hence, for the reasons aforesaid, the family court appeal is allowed. The Hindu marriage petition filed by the husband for a decree of divorce is allowed. The marriage solemnized between the parties on 30/04/1979 is hereby dissolved by a decree of divorce on the ground of cruelty. In the circumstances of the case, there would no order as to costs.