Rekha vs Ram

B.R. Gavai, J.—Heard.

Admit. By consent of the parties, the appeal is taken up for final hearing.

The present appeal challenges the Judgment and decree passed by the learned Family Court No. 3, Nagpur, in Petition No. A-77/08, thereby decreeing the application filed by the respondent husband for dissolution of the marriage under Section 13 (1)(i-a) of the Hindu Marriage Act, 1955. The facts, in brief, giving rise to the present appeal are as under:

The appellant and the respondent are married to each other on 25.1.1998. The couple has been blessed with one male child. The petition came to be filed by the respondent husband under Section 13(1) (i-a) & (i-b) of the Hindu Marriage Act, 1955 (hereinafter referred to as the "said Act") for a decree of dissolution of the marriage. It was the contention of the respondent/petitioner that the appellant wife was not behaving properly with the members of the family and was always quarreling with the petitioner as well as his family members. It is contended that on account of the said behaviour of the wife, the husband was required to take a room on rent from Smt. Gaware and was residing there. However, at that place also, the wife was not residing properly. She was not getting up early in the morning and was not doing household work. On the contrary, she used to insist that the household work should be done by the husband. It is the contention of the husband that since he was deaf and dumb, she was taking disadvantage of the same. It is further contended that since the wife was not preparing food, it had adverse effect on the health of the husband and he become unconscious at his work place. It is further contended that she used to send the husband to get prasad from the temple and on his failure to get it, she used to assault him. It is further contended that the appellant wife deserted him on the false pretext that her father has fallen ill and went to her father''s place and did not return in spite of various efforts made by the husband. On the contrary, she filed an application for maintenance in the Court at Pulgaon. It was further contended that the appellant wife, in her application, has made false allegations regarding demand of dowry. In this premises, the decree for dissolution of marriage was prayed by the petitioner husband.

The appellant wife, by filing the written statement below Exh. 14, denied all the allegations. She, in turn, contended that when she was residing with the petitioner husband, his mother and maternal uncle used to ill-treat her on account of demand of dowry. It is further contended by her that they used to assault her brutally. It is further contended by her that on one day, under the direction of his mother, the petitioner husband falsely informed her that her father was not well and left her at her father''s place. She states that since the petitioner husband did not come to get her back, she went to the petitioner''s house along with the mother and uncle. However, she was not permitted to enter the house. She has stated that she is still willing to reside with the petitioner. However, she was not permitted to do so.

On the basis of the rival pleadings, the learned trial court framed issues, evidence was led on behalf of the parties and after perusal of the evidence the learned trial court passed the Judgment and decree as aforesaid. Being aggrieved thereby, the present appeal.

Shri G.G. Gurve, the learned counsel appearing for the appellant wife, submits that the learned Family Court has grossly erred in allowing the petition. It is submitted that the petitioner husband has utterly failed to prove any act on the part of the appellant wife, which would show that the appellant wife had caused mental or physical cruelty to the petitioner husband. It is submitted that since the petitioner was a deaf and dumb person, it was the appellant wife, who was taking his care properly. The learned counsel, therefore, submits that the decree, as passed by the learned Family Court, needs to be quashed and set aside and the petition for dissolution of marriage be dismissed.

Smt. Shweta Ankalwar, learned counsel for the respondent, on the contrary, submits that the learned trial Judge on proper appreciation of the evidence, has rightly decreed the suit.

The following points are raised for consideration in the present appeal.

Perusal of the material on record, would reveal that since the petitioner husband is deaf and dumb person, Shri Makrand Gore, who is the teacher in Deaf and Dumb School, Shankar Nagar, Nagpur, has acted as an interpreter for interpreting the evidence of the petitioner husband. However, the learned Family Court found that the applicant. was answering in more signs and as such the Family Court was not able to record the exact signs made by the respondent husband.

The petitioner husband, in addition to his own evidence, has examined P.W. 2 Rekha Gaware, P.W. 3 Prabhavati Tayade, P.W. 4 Vandana Dandekar and P.W.5 Nandu Gaware. As against this, the appellant wife has examined herself in support of her case. Since P.W. 2 Rekha Gaware was not available for cross examination and her evidence was not pressed, the learned trial Court has decided the petition on the basis of the rest of the evidence.

As to what would amount cruel treatment, to a large extent is a question of fact. The Apex Court in the case of Dr. N.G. Dastane Vs. Mrs. S. Dastane, has observed as under:

"The enquiry has to be whether the conduct charged as cruelty is of such character as to cause in the mind of the petitioner, a reasonable apprehension that it will be harmful or injurious for him to live with the respondent."

The Apex Court has further observed in the case of A. Jayachandra Vs. Aneel Kaur, as under:

"When the whole conduct of the spouse shows instances of ill-treatment, use of abusive language and allegations which amount to casting aspersions on the fidelity of the other spouse and in general have the effect of demoralizing the spouse, against whom the allegations are levelled, causing mental stress and agony, mental cruelty is proved."

In the light of the aforesaid guiding principles, we will have to examine as to whether the evidence, as produced on record by the petitioner husband, shows that the conduct of the respondent wife was such which would amount ill-treatment, use of abusive language and allegations, which would in general demoralize the petitioner husband thereby causing mental stress and agony. Perusal of the material on record would reveal that the evidence of the petitioner husband is duly corroborated by independent witness i.e. P.W. 3 Prabhavai Tayade, P.W. 4 Vandana Dandekar and P.W.5 Nandu Gaware. P.W.4 Vandana Dandekar has stated in her evidence that the respondent (wife) was insisting that the petitioner should not reside in the joint family. She has further deposed that since the respondent (wife) was not willing to reside separately, she used to always quarrel with the petitioner and his parents and also abusing him in filthy language. Though this witness has been thoroughly cross examined, nothing damaging has come in her evidence.

The petitioner husband has further stated in his evidence that when he and respondent wife were residing in the house of Smt. Gaware on rental basis, the respondent wife never used to get up in the morning, she used to continue sleeping, she was not doing any household chores and the petitioner husband was required to do all the household chores. The evidence of the petitioner husband, in this regard, has been duly corroborated by P.W.3 Prabhavati, P.W. 4 Vandana and P.W. 5 Nandu.

The petitioner husband has further stated in his evidence that the respondent wife was not cooking food and when he used to go for work, he was required to go to the work without having any food. The evidence of the petitioner husband, in this regard, is duly corroborated by the aforesaid three witnesses. The evidence of the petitioner husband that the respondent wife used to insist on the petitioner husband to get prasad from the temple and on account of failure, she used to ill-treat him and assault him physically, has also been corroborated by the aforesaid three witnesses. In the cross examination of these witnesses nothing damaging in this regard has come on record.

The case of the petitioner husband that the respondent wife had attempted to kill him by pressing his neck, has also been corroborated by P.W. 4 Vandana and P.W.5 Nandu. The contention of the petitioner husband that the respondent wife used to take out money from his pocket and give him threats of suicide, has also been corroborated by the evidence of P.W. 3 Prabhavati and P.W.4 Vandanana. P.W.5 Nandu also corroborated the contention of the petitioner husband that the respondent wife used to give threats regarding suicide.

It is further to be noted that though the appellant wife in her proceedings for maintenance, had stated that the respondent husband used to ill-treat her physically and mentally under pressure of his mother, in the cross examination she has specifically admitted that the respondent husband has never ill-treated her. The learned Family Court has, therefore, come to the finding that making of wild allegations of physical and mental torture which are known to be false to the appellant wife, would also amount mental cruelty.

If the entire evidence is taken into consideration, it can clearly be seen that the respondent husband has proved beyond reasonable doubt that the appellant wife was giving abuses to the respondent husband, not doing the household chores and asking him to do the household chores, not cooking food and thereby requiring the respondent husband to go to the work without having food, physically assaulting the husband, snatching away money from his pocket and giving abuses, making attempt to kill the husband by pressing his neck, and giving threats to commit suicide. The cumulative effect of such instances would irresistibly lead to the conclusion that the appellant wife was acting in such a manner, which would cause mental stress and agony to the respondent husband. We, therefore, find that the learned Family Court has rightly come to the conclusion that the husband has proved mental and physical cruelty by the wife.

The scope of interference in appeal is, by now, well defined. The appellate court will not interfere with the discretion of the trial court unless it is found that the learned trial court has proceeded on a wrong principle of law, or failed to have regard to some material consideration or some gross injustice has occurred. We do not find that it can be said that the learned trial Court has proceeded on a wring principle of law or has failed to have regard to some material consideration or that some gross injustice has occurred. On the contrary, we find that the learned trial Court has appreciated the evidence on record in its correct perspective.

It is further to be noted that the learned trial Court, after taking into consideration the income of the respondent husband and the fact that the son of the parties was residing with the respondent husband and that the respondent husband''s mother was depending on him, has awarded maintenance @ Rs. 4,000/- p.m. to the appellant wife.

We find that appeal is without merit and as such dismissed. No orders as to costs.