Sheela Sambhaji Kamble vs Sambhaji Dattu Kamble

M.L. Dudhat, J.—This Family Court Appeal is preferred against the judgment and decree dated 30th September, 1993 passed by the Family Court at Pune in Petition A. No. 258 of 1991. By the aforesaid judgment and decree the Family Court allowed the petition and decreed that the marriage between the appellant and the respondent stands resolved from 30.9.1993.

The appellant in this case is wife of respondent. The respondent husband-filed a petition for divorce on the ground of desertion and also on the ground of cruelty. It is the case of respondent that he got married with the present appellant on 11.5.1988 at Solapur as per the Buddhists religious ceremony. Thereafter both the husband and wife were residing at 221, Laxmi Nagar, Yerawada at Pune. At the said premises the respondent-husband was staying with the appellant-wife and only his brother Prabhakar used to come to their residence for taking food. The said brother Prabhakar used to reside at the place of the respondent''s sister''s house. Respondent''s parents were residing at Solapur. According to the respondent from the inception of the marriage the appellant-wife showed unhappiness about the matrimonial relationship, as according to her, the said marriage was forced upon her by her father. In fact she intended to marry Doctor or Engineer. It is further alleged that the appellant-wife used to quarrel with the respondent and also used to utter filthy abusive language. On many occasions she threw her "Mangalsutra" and frequently she used to insult the respondent and used to say that she will run away with somebody. She also used to give the threat that she will kill herself by burning and stated that she did not wish to continue the matrimonial relationship and intended to have a divorce.

Somewhere in October, 1988, the appellant-wife received a call for interview in Aurangabad Court. The respondent-husband took her to Aurangabad. At that time the appellant''s father also came to Aurangabad. The respondent narrated everything as to how the appellant was misbehaving and expressing her intention to get the divorce. The appellant''s father promises him that he will persuade his daughter to improve her conduct and for that purpose he took her to Nilanga. During Diwali he was invited at Nilanga but he could not go. Thereafter the respondent''s father went to Nilanga and brought back the appellant-wife to respondent''s house. Even after returning to matrimonial house she continued to behave in the same manner and further told the respondent that she had returned to the matrimonial house only to keep the honour of her father-in-law and also stated that she was no longer interested in cohabitation and intended to have divorce from the respondent.

Thereafter the appellant''s father alongwith the appellant''s cousin Suresh Bhosale intended to take the appellant from the matrimonial house, however, because of the request of brother Prabhakar, sister Yashodhara and cousin Ashok she continued to stay at the matrimonial house. Somewhere in March, 1989 the respondent-husband took the appellant to Nilanga at her father''s place for delivery. Thereafter on 25.4.1989 she delivered male child and she never returned to matrimonial house. During her stay with her father she addressed few letters to him expressing her intention to take divorce and also threatened him that she will set herself on fire in the matrimonial house. Getting tired with these threats and tantrums of the appellant the respondent-husband gave notice dated 4.7.1989 (Exh. 30) calling upon her to return back to matrimonial house. However she refused to return. Therefore, the respondent-husband approached the community Panchas for settlement but all his attempts failed due to obstinate attitude of the appellant-wife and her family members. The respondent further contended that on 19.3.1990 she filed an application for maintenance. However the respondent-husband failed to attend the Court due to apprehension that he may be assaulted had he con tested the case and therefore in the said application ex parte order of maintenance was passed wherein the present respondent-husband was directed to pay Rs. 100/- per month as maintenance to the wife. On this aforesaid ground the respondent has filed the petition for divorce u/s 13 of the Hindu Marriage Act on the ground of cruelty and desertion. The aforesaid petition was resisted by the wife by filing written statement wherein she stated that in fact her father never forced to marry the respondent but she married respondent by her own Will. She denied that she had at any time expressed to respondent-husband that she intended to marry Doctor or Engineer. She also denied all the allegations about the quarrelsome nature, filthy language, throwing Mangalsutra threatening to run away with somebody and threatening to kill herself. It is the case of the appellant-wife that her parents were school teachers and she studied upto S.Y.B.A. At the relevant time the respondent-husband was Supervisor in the scheme of adult education and after due deliberation both the parties decided to get married and accordingly the marriage got solemnised on 11.5.1988. However according to her after the marriage both husband and his brother, his sister and his mother-in-law started harassing her and call upon her to bring an amount of Rs. 20,000/- and also a motor cycle so as to enable the respondent-husband to purchase accommodation and to enable him to go to his office for attending the work. Since her parents already had spent an amount of Rs. 50/000/- during the marriage, she could not accede to the demand of her husband and other members of his family due to which according to her she was beaten mercilessly, she was not given food and every now and then an attempt was also made by pouring kerosene on her body so that if she fails to fulfil the demand as mentioned aforesaid, she will be set on fire. She further has stated that when the said assault and persecution went beyond the limitation she was also constrained to write two letters on 12.12.1988 and 5.2.1989 which are Exhs. 44 and 45 wherein she informed her father about the demand s from her husband and his family members and about the treatment given to her in the house. She further has contended that for the purpose of delivery the husband left her to her father''s place somewhere in March, 1989 and on 25.4.1989, male child was born to her. The child born was hardly 2 kgs. of weight; was very weak and therefore Doctor advised to take him to bigger hospital and take care of the child atleast for next 6 months by giving him protection and medicine. Inspite of delivery of the child the respondent-husband came to her only once and thereafter he has never come to her house to see the child even after the filing of the petition. In fact according to her he had informed that he has neither interested in appellant nor in the child. In fact according to her it is the duty of the respondent-husband to provide money for medical expenses of the child. Inspite of this she addressed a letter to her husband on 18.5.1988 which is at Exh. 26 wherein she requested him to come to her house to take her and his son back to matrimonial house. After the delivery of the child since the respondent-husband failed to come to her place to see her and the child and to look after the child and since instead of going to the appellant''s house for taking back her and his son to his house, the respondent-husband sent a message that he intended to take divorce and that all his family members are of the opinion that the said marriage should be put to an end. She got disturbed and annoyed. In the meantime it appears that she also received one letter whereby she was told that by the same letter the respondent-husband has taken divorce from her. Due to this out of annoyance she addressed one more letter dated 18.5.1989 at Exh. 29 to her neighbour wherein she stated that if her husband the respondent fails to come to her house for taking her to matrimonial house she will come to the matrimonial house alongwith her mother. Further the respondent instead of doing that sent a message that he intend to have divorce with her and that he is not interested in her as well as the newly born child. She therefore addressed one letter out of annoyance dated 22.8.1989 which at Exh. 27 addressed to her father-in-law and mother-in-law. In that letter she stated that since all the family members have conspired to put an and to the marriage between herself and respondent she is ready and willing to give the divorce. She also stated that the divorce cannot be taken by expressing the intention in the letter and the same can only be taken by approaching the Court. In view of this she also decided that this matrimonial relationship should have to be put to an end and therefore it is desirable to get the divorce by approaching the Court. She also stated that since in the marriage her father had spent about Rs. 50,000/- the same may be returned to her after at the time of dissolution of the marriage in the Court. She further emphatically stated if her husband treats the letter addressed by him as divorced and fails to take recourse to the Court then she may come to his house and commit suicide. Thereafter she received a notice addressed by the Lawyer dated 4.7.1989 which is at Exh. 30, wherein she was called upon to come to matrimonial house within 8 days with the undertaking that she will not use abusive language and she will not quarrel and she will not commit suicide and thereafter the husband has filed the aforesaid petition. According to her the real reason as to why the respondent-husband has filed the petition of divorce was that the wife had filed an application for maintenance on 19.3.1990 and therefore at that point of time the respondent thought of filing the petition for divorce. In fact according to the wife at no point of time the respondent-husband and his family members were interested in mis matrimonial relationship and all the family members were in fact instigating the respondent to take divorce.

After allowing both the sides to lead the evidence and after hearing both the sides the Trial Court has decreed the petition for divorce filed by the respondent-husband against which the present appeal is preferred by the wife. We have gone through all the documents depositions and the judgment. According to our opinion, this decree passed by the Trial Court is liable to be set aside. Admittedly in this case the allegation of the husband is that from the inception of the marriage the appellant-wife showed that she was compelled to marry with him because of her father and that in fact she intended to marry a doctor or an engineer; and that she is not interested in him and that she may leave the house and go with anybody. In fact excepting bare words of the husband there is no evidence to substantiate the aforesaid allegations and the Trial Court also in its judgment has given, a finding that the respondent-husband failed to prove the aforesaid allegations. That means we have to proceed with the fact that this marriage between the appellant and respondent was performed as per the wish of the appellant-wife and not by force.

According to our opinion in this case the Trial Court is completely misconstrued various documents and come to the conclusion that the behaviour of the appellant-wife amounts to cruelty and desertion. The Trial Court has made slip shot comments on various letters addressed by the respondent-wife without understanding the meaning of the same in the chronological context of each other.

The first question is as to whether the allegations of the wife that after marriage respondent-husband, his family members were insisting upon the wife to bring Rs. 20,000/- for purchase of accommodation and motor cycle for going to his office. She has stated in her written statement to that effect and the same is denied by the respondent-husband in his deposition. So this is just word against word and therefore the Trial Court has discarded this evidence. However the Trial Court has not taken into consideration the contemporaneous documents that is the letters addressed by the appellant wife to her father which are at Exhs. 44 and 45. It is pertinent to note that these letters are first in chronological sequence. These letters were addressed by the appellant wife after undergoing assault and threat and when her endurance had come to an end. She has addressed these letters to her father knowing fully well that since her father had spent already an amount of Rs. 50,000/- for celebrating of the marriage he had no money to comply with the demand of respondent-husband; The first letter is Exh. 56 which is dated 5.2.1989. In the said letter she has stated as to how all the members are interested in getting money from her parents and how they are putting her to harassment and even assaulting her for getting the amount of Rs. 20,000/- and motor cycle from her parents. She has also stated in the said letter that before leaving to her parents place for delivery she was emphatically told by the husband that after the delivery when she returns she has to comply with the demand of Rs. 20,000/- and motor cycle. He also warned her that she should not be under the belief that after getting a child he will forget about his demand which he has made and further told her that if she fails to comply with the aforesaid demand there will be divorce. There is one more letter which is at Exh. 44, dated l2.12.1988. In the said letter also the appellant had more of less narrated the same incident stating in it as to how she was harassed and threatened. The Trial Court has discarded this evidence merely on the ground that she has not referred this letter in her pleadings and not stated in her examination in chief and the letters were produced by her father, during his examination in chief. According to our opinion this cannot be a ground for discarding these letters and that she has not filed any complaint to the police. The Trial Court has lost sight of the fact that these letters were addressed by her to her father who was examined as a witness. Her father has given the plausible explanation that since the demand was not made to him personally by respondent or his family members he did not file any criminal complaint against the family members. According to our opinion in case of matrimonial matters the father of the girl is bound to take subdued attitude to these demands at initial stage. Further the lower Court has lost sight of the fact that these letters are written through the post and atleast at the time when these letters were written on 5.2.1989 and 12.12.1988, there was no case pending and except threat the respondent has not taken any action. The fact that she has written letter at that time is proved from the postal stamps and therefore the said letters were written at the relevant time and there is a proof to that effect. If the respondent-husband was treating the appellant nicely there was no need for her to write this type of letters to the husband. These letters clearly go to show that there was the demand made by husband for Rs. 20,000/- and for a motor cycle. Mr. Deshmukh learned Counsel appearing for the respondent-husband firstly contended that these documents cannot be admitted in the evidence. Firstly he contended that these two letters are addressed by the appellant and really in her examination in chief these letters could have been brought on record with her statement that she had addressed her letter. The signature on the letters are hers. This is not done and therefore as per the Evidence Act letters are inadmissible. According to us there is no substance in the argument. The letters were addressed in the present case to the father who was witness during the trial and in his examination in chief he has accepted that he received these two letters from his daughter. He had further stated that the said letters were written by his daughter and he also identified the signature of his daughter on the said letters. In view of this according to us these letters arc properly brought on record.

Mr. Deshmukh further argued that these letters are not original letters and xerox copies of the letters and therefore these letters are in the nature of secondary evidence and therefore cannot be relied upon. According to our opinion again there is no substance in the aforesaid arguments. While producing the xerox copies of the letters the witness, the appellant''s father stated that the original letters addressed by her he has produced in the Court in the maintenance case and therefore he is producing xerox copies thereof. On this statement there is no cross examination not only that no objection was taken about the genuineness of the letters on the ground that they are xerox copies and not original and virtually the said letters were allowed to go on record without any objection. Further evidence is also given by the witness (i.e.) father of the appellant to the effect that original letters were filed in the Court in the maintenance case and they are not with him and therefore he is producing the xerox copies. If the letters are not available with him and that is why he has produced the xerox copies, the objection regarding the xerox copies cannot be taken at the stage of High Court by the appellant-husband. As per these letters one can safely infer that home demand of money was made by the respondent and his family members and that being the position this lends support to the testimony of the appellant and her father.

It is very important that after the letters Exhs. 26,27,28 and 29 are produced by the respondent-husband as the said letters were addressed by the appellant-wife to husband, father-in-law, mother-in-law, to neighbours and brother-in-law, it is seen that the aforesaid letters, according to Trial Court, make the intention of the appellant clear to the effect that she intended to have divorce with respondent-husband and that she has also threatened that she will commit suicide at the husband''s door step. We are surprised to see these observations. These observations are made by the Trial Court because the Trial Court has failed to read these letters in chronological sequence. We have already pointed out with reference to Exhs. 44/45 that the demand was made by the respondent-husband about Rs. 20,000/- and also about the motor bike. He has also expressed that he will take divorce. Now the first letter which is at Exh. 26 dated 18.5.1988 by the appellant, the appellant has stated therein how the child was very weak at the time of birth as he was hardly 2 kgs. of weight and how doctor had advised to take care of the child with proper medicine for next 6 months and that he may be required to take to bigger hospital in that place. She has also sarcastically stated that whether the respondents performed the ceremony at the time of naming of the child and she further expressed that probably there may not the custom in their family to celebrate this occasion because ultimately this is going to incur some expenses to them. Definitely she has written this in a sarcastic manner but one must keep in mind that after the delivery of the child only once at the initial stage the respondent-husband has visited her and thereafter nobody ever bothered to incur expenses towards the recovery of the child. In that context if she used some sarcastic language according to us it is pardonable taking into consideration the peculiar circumstances under which she was put in. Apparently from the said letter she has expressed her frustration in mind and inspite of that it is pertinent to note that she has clearly stated that she intend to come to the matrimonial house with the son and herself and requested her husband to come and take them to his house. In view of this according to our opinion there was no need to fall upon the attitude of appellant and in fact this letter is a natural behaviour of a wife who is ill-treated and ignored by the respondent and all his family members. The second letter is dated 18.5.1989 Exh. 29. This letter is also addressed by the appellant-wife to her neighbour who was residing near her matrimonial house and there also she has stated that the health of the child, the trouble the child is undergoing and that if her husband fails to take care of her child she alongwith her mother will come to matrimonial house. According- to us this letter and the first two earlier letters clearly go to show that the intention of the appellant-wife is to return to the matrimonial house and there is no question of expressing animus deserendi.

Next letter in sequence is Exh. 28 dated 13.6.1986. The appellant-wife has addressed this letter to brother-in-law Prabhakar. From the reading of this letter it appears that before writing this letter it appears that some communication or message was received from the husband that he and all his family members concur in one decision that the marriage between the appellant and the respondent should be put to an end by the divorce. Since she got the aforesaid message against the background that her son was delivered, he is weak, he required medical attention and instead of looking at her and her son all the family members of respondent including the respondent No. 1 are thinking of divorce with righteous indignation, she addressed this letter stating as follows: "if you intend to take divorce I am ready and willing". Now this type of letter shows her readiness and willingness which is not voluntary. It is against the background in which the respondent and his family members are behaving. The Trial Court has taken this sentence in the letter as if voluntarily she intended to have divorced with the respondent. According to us this letter itself shows as to how naturally out of righteous indignation ultimately she was constrained to observe that she is ready and willing to take divorce. Thereafter she has also written one letter. She received a notice from her husband which is at Exh. 30 dated 4.7.1989 but before that we must take into consideration as to how the respondent-husband ingenuously started creating evidence against the wife. The respondent-husband had made a complaint to the police which is at Exh. 33 dated 30.4.1990 wherein he has stated that his wife is threatening him that she will commit suicide at his door steps to involve him in a criminal case and therefore some protection should be given to him. According to our opinion this whole affair is an after thought. It is pertinent to note that just in the same month i.e. on 19.3.1990 just 11 days prior to the application to the police the wife had already filed an application for maintenance and which is at Exh. 33 and thereafter on 30.4.1990 he has filed the police complaint. At that time to show the proof the husband had also a letter dated 27.8.1989 with him wherein as mentioned aforesaid she had expressed that she may commit suicide at his door steps if husband fails to take divorce from the Court and treated the letter which has been addressed to her as divorce. We have already pointed that the respondent-husband communicated her to treat the said letter as divorce which he had addressed to that she has stated that if all of them want this marriage to end by divorce it will be given in Court if she receives Rs. 50,000/- which her father has spent for the marriage and if without going to Court the husband is going to treat the said letter as divorce then she state that she will have no alternative to commit suicide at his door steps and therefore according to us this application to the police Exh. 34 is just for creating the evidence to establish his mental cruelty from his wife. Taking all these aspects into consideration according to our opinion the documents clearly support the version of appellant-wife that after marriage she was ill treated for the payment of Rs. 20,000/- and a motor cycle and that inspite of ill-treatment she continued to stay with the husband. However after the delivery though she was ready and willing to come to the matrimonial house, circumstances were created around the appellant-wife so as to ultimately out of righteous indignation she expressed her intention that she is ready and willing to take divorce in the Court. These letters were not written by her voluntarily by her own wish but were addressed by her because of righteous indignation in a frustrated state of mind. In view of this according to our opinion there is no evidence laid by the respondent-husband to the effect that behaviour of the wife was such that it amounted to mental cruelty and that wife on her own deserted him without any cause to that effect. According to our opinion wife has never deserted respondent-husband. In fact she was ready and willing all the time to return to his house and it was respondent-husband who never intended to have her or even his son back to his house.

Because the respondent-husband has expressly stated in the Court that he has no interest in his wife nor he has any interest in his son, the appeal is partly allowed. Judgment and decree passed by the Trial Court is set aside with costs.