Sou. Shubhada Sharadchandra Divekar vs Sharadchandra Raghunath Divekar

G.D. Kamat, J.—This appeal by the wife challenges the judgment and order dated 5th of August, 1993 made by a Judge of the Family Court, Pune, whereby her Matrimonial Petition A. No. 513of 1991 is dismissed. We will hereinafter refer to parties by their proper names. Wife Shubhada had sued her husband Sharadchandra for a decree of divorce invoking Section 13(1)(ia) of the Hindu Marriage Act, 1955, viz. cruelty.

The petition was contested by Sharadchandra. Upon denying various allegations made viz. mental and physical cruelty, it was set out by him that on 10th of March, 1990 while he was away from home Shubhada deserted the matrimonial house alongwith children and went to her parent''s place at Pune itself. He contacted Shubhada but he was told by her that she does not desire any more to live with him thereby indicating to him that the desertion was complete.

Before institution of the present Matrimonial Petition, a notice was addressed by her through her Advocate on 30th March, 1991 suggesting to Sharadchandra that they could go for a divorce by mutual consent so as to avoid washing dirty linens in the Family Court and in case he failed to indicate his readiness and willingness to submit the joint petition for divorce by mutual consent she would take it that he is unwilling to do so and, therefore, take such other legal steps both civil and criminal as may be advised. The Lawyer''s notice was, however, replied to on behalf of Sharadchandra by his Lawyer on 30th May, 1991 and an offer was made to Shubhada to return to the matrimonial house in the interest of not only them but also that of the children.

Needless to say that the offer made by Sharadchandra did not prevail upon Shubhada and soon thereafter she instituted the matrimonial petition seeking a decree of divorce.

On behalf of both the spouses evidence was led. In support of her case, Shubhada in addition to her own evidence, adduced the evidence of Suresh @ Dattatraya Waman Kelkar, close relative of Shubhada and Swati Patwardhan, her younger sister. No specific reference need be made to the evidence tendered on behalf of Sharadchandra at this stage and suffice for the present to mention that the evidence adduced by Shubhada in support of her case that she suffered cruelty both mental and physical at the hands of Sharadchandra did not find favour with the trial Judge and that is how Shubhada lands in this Court in the present appeal assailing the same on several grounds.

The sole ground invoked for seeking a decree for divorce in the petition is the mental and physical cruelty qua Shubhada. It is, therefore, necessary to consider what is alleged against Sharadchandra in that behalf. In her evidence Shubhada mentions that she married Sharadchandra on 20th May, 1975 at Pune according to Hindu rites. But she soon found that behaviour of her husband was cynical. In that she says that he used to talk in filthy language and bang utensils .According to her he is a very hot tempered person. She quotes an incident that within a month of her marriage when she told her husband that she wants to go to her maternal uncle he refused to permit her and on the contrary raised a quarrel with her. According to her the respondent would pick up quarrel for no rhyme or reason, with the result, at one time both of them went to reside at her parent''s flat at Pune which is situated in Shantiwardhan Society, Karve Road, Pune. She found no change in the living style of the husband despite shifting of the residence. She then refers to her maternal uncle Murlidhar Mate, who also stays at Karve Road, to suggest that he intervene as he was otherwise acquainted with her husband. But her uncle''s intervention could not convince Sharadchandra and on the contrary he became angry and even assaulted her in his presence. According to her she delivered a male child on 26th of July, 1981 named later as Yash when she was in family way in 9th month, Sharadchandra tried to press her neck thereby bringing about dangerous situation. She makes a reference that in the month of July, 1981 some days before delivery when she had gone to the dispensary of Dr. Medha Patankar, Sharadchandra insisted upon doctor that he wants to be present at the time of delivery but Dr. Patankar refused to do so. According to her Sharadchandra began quarreling with her and created a scene at the maternity home itself. She says that as result of this quarrel at the maternity home she went to reside at the residence of uncle of Sharadchandra but he quarreled not only with her in the uncle''s house but even threatened to throw her down and at the end she says that Sharadchandra quarreled with his uncle and aunt. Despite all these acts of commission on the part of Sharadchandra, she claims that after the birth of her son they took up residence at the parent''s house of Sharadchandra with the hope that there will be change in his behaviour. But however, no change had come about.

Another incident of the cruelty that is being highlighted by Shubhada is when she talks about a outing at Amboli in the month of May, 1982. In this connection, she says that she, her family members alongwith Sharadchandra went to Amboli where they stayed for about 4 to 5 days. According to her, Sharadchandra threatened her and her family members with a big knife (Jambiya). But unfortunately, there was no change in his behaviour.

She then speaks of her second delivery on 17th of November, 1985 when she delivered a female child who was eventually named Tanvi. According to her within three weeks of birth of Tanvi Sharadchandra assaulted her. The next incident highlighted is the occasion on which thread ceremony of their son Yash was slated on 25 th of May, 1989. Shubhada deposes that on that day Sharadchandra abused her in front of all the guests who were present to attend the ceremony and threw utencils at her father and when grand-mother tried to intervene with a view to convince him to cool down, Sharadchandra pushed the grand-mother. According to her there was no change in the behaviour of Sharadchandra with a result she had been living with some sort of a fear and even children are very much afraid of father. She, however, concludes in her examination-in-chief by saying that she left the matrimonial house on 10th of March, 1990 because Sharadchandra threatened to burn her. She further outlines that with that incident she has been staying with her parents alongwith her children and Sharadchandra had not been providing any type of maintenance either to her or to her children.

She, however, made a reference to the business conducted by Sharadchandra. In that according to her Sharadchandra was engaged in the business of transformer winding and some-time later in transport business. According to her, income of Sharadchandra out of that business was about Rs. 8,000/- to 10,000/-. But Sharadchandra would not give her any money for household expenses, though she admits that his father would give her some money. Accord- ing to her the income of Sharadchandra is to a certain extent reduced later on which is any where between Rs. 7,000/- and Rs. 8,000/- per month.

Before we embark upon making a reference to what Shubhada stated in her cross-examination and refer to certain events mentioned therein, we may usefully refer to the evidence of two witnesses examined by Shubhada is support of her case about her suffering, mental and physical cruelty.

Suresh @ Dattatraya Waman Kelkar claims to be a resident of Pune between the period 1976 and 1981 and engaged in the garage business at the relevant time. He admits that his wife and Shubhada''s mother are real sisters and he was occupying for his residence bungalow of V.T. Mate who is the maternal uncle of Shubhada. The witness claims that Shubhada and Sharadchandra used to stay near his house and, therefore, both couples were on visiting terms. He says that by nature Sharadchandra is a hot tempered person and on his observation he found that relations between Shubhada and Sharadchandra are not cordial and sometimes they were not smooth. He witnessed a quarrel that took place. Speaking about the quarrel, the witness says that there was a hot discussion between Shubhada and Sharadchandra and then he saw Sharadchandra beating Shubhada. He says that he intervened and tried to convince Sharadchandra but that was of no avail. He then refers to the thread ceremony of Yash, on which occasion according to him, he was told to bring ice from Dattawadi. However, his vehicle had some break down on way to Dattawadi, with the result, he could reach the house of Sharadchandra late which was by itself the venue of that ceremony. According to the witness, Sharadchandra scolded him for being late and this incident left its own effect on Shubhada. He then speaks of another incident at the time of the reception of the same thread ceremony. On that day when a party who had some business transaction with Sharadchandra came to demand money, the result was, the respondent became very angry and scolded Shubhada. The witness then makes a general statement that Sharadchandra used to abuse Shubhada and used to throw utensils and had been quarreling with contractors when there had not been supply of articles in time.

We now come to the evidence of Swati Prakash Patwardhan who is the younger sister of Shubhada. She admits that she has been going and residing with Sharadchandra and Shubhada at their house in vacations. According to her at- least that would happen two times in a year. She says that Sharadchandra used to talk nicely with her. But however, she was afraid in her mind because she knew that Sharadchandra is hot tempered man and otherwise his behaviour was not good. She claims that Sharadchandra used to get annoyed on petty matters and for casual reasons and that he was whimsical. She also asserts that Sharadchandra is a manner less person and then makes a reference to an incident that took place on thread ceremony of Yash. She says that Sharadchandra became annoyed and told all the persons present to cancel the ceremony and when the relatives and invitee started to convince him against the cancellation the respondent started abusing and throwing utensils on her father. Sharadchandra''s mother also intervened, but she failed to convince him. According to her, her grandmother also tried to intervene but was told not to interfere in such matter and ended in saying that the thread ceremony was a tamasha.

Mrs. Purohit, learned Counsel appearing for the appellant, has contended that the Trial Court is in error in holding that on the basis of the evidence no ground of cruelty has been made out. According to her, the learned Judge was in error in not appreciating that to prove a charge of cruelty standard of proof required is not that of a criminal trial and that allegations made and the attendant circumstances must be viewed in such a manner so as to find out whether the marriage has become irretrievable and it is in that context expression "cruelty" has to be seen.

She also contended that by a recent pronouncement by the Supreme Court, it is not even necessary that the cruelty must be intentional on the part of one spouse against the other; According to her the whole concept of cruelty has changed and has been very well explained by the Supreme Court in the decision of V. Bhagat Vs. Mrs. D. Bhagat, .

Learned Counsel has relied upon this decision for more than one reason and to highlight that when two spouses have developed a relationship of such a nature that they cannot reasonably be expected to live together, in which event, it is necessary for the Court to consider in what context the accusations and allegations are made by one spouse against the other.

It may be mentioned that this was a case where the matrimonial petition was filed invoking similar ground for a decree of divorce, namely, Section 13(1)(ia) of the Hindu Marriage Act. Several authorities have been considered in this judgment. Observations are made to explain the meaning of "cruelty" and on the perspective and approach by a Court in the matter of deciding the matrimonial disputes.

In defining mental cruelty in Section 13(1)(ia), the Supreme Court held that it can be broadly defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other which in other words is explained to mean such mental cruelty that the parties cannot reasonably be expected to live together. Some observations are also made that it is not necessary to prove that the mental cruelty must be such as to cause injury to the health of the petitioner and while arriving at such conclusion regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together if already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. It also observed that what is cruelty in one case may not amount to cruelty in another case and a matter to be determined on the facts and circumstances of a case and if it is a case of accusations and allegations, regard must also be had to the context in which they are made.

In paragraph 17 of the report while construing the word "cruelty" the Court held that it is not necessary for a party to establish that the cruelty must be intentional, wilful or deliberate and there are occasions where cruelty may be unintentional but inexcusable and that word has to be understood in the ordinary sense of the term in matrimonial affairs with a further rider that if the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty can be easily established u/s 13(1)(ia) and absence of intention should not make any difference if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. It may be seen that in this authority a reference has been made to the earlier decision of the Apex Court in the case of Dr. N.G. Dastane Vs. Mrs. S. Dastane, .

Mrs. Purohit, learned Counsel for Shubhada, thereafter brought to our notice that certain allegations made by the appellant against Sharadchandra in the matter of several incidents. For instance, according to her, the incident at Dr. Medha Patankar''s maternity home where Sharadchandra demanded that he be allowed to personally view the delivery is accepted.

A row was created allegedly by Sharadchandra when both of them along with other close relatives had gone to Amboli in May, 1992. According to her, somebody had thrown water on Sharadchandra out of fun but Sharadchandra got wild and took out a Jambiya and threatened the participants, with the result, there was complete ice on holiday of all. She further points out that though Sharadchandra has denied carrying Jambiya he had admitted that he carried a knife though for different utility purpose. In so far as thread ceremony is concerned, it is pointed out that when the caterers failed to render catering service on time, Sharadchandra lost his temper and threw utensils on Shubhada''s father. It is then pointed out that Sharadchandra had accepted the incident of vessel being fallen down from his hand when he had rushed to make a telephone to the caterer for their lapse and delay.

All this is being highlighted by Mrs. Purohit to suggest that the incidents amounted to cruelty in so far as Shubhada is concerned which in fact have truly happened though Sharadchandra has different versions about them. She urges that Sharadchandra naturally is not expected to accept them and in any case needs defence to answer that cruelty. She, therefore, urges that evidence be viewed in a proper perspective. Mrs. Purohit then embarked in showing that Shubhada belongs to a Princely family of Kagwad and her father is a retired Executive Engineer and obtained a degree in Commerce (B. Com.) even after her marriage was celebrated at an early age. Shubhada also learnt Japanese and trained herself in flower arrangement and cooking. Mrs. Purohit thereafter took us through the evidence to suggest that for a long time during the subsistence of marriage Shubhada patiently suffered all the troubles, harassments and cruelty inflicted upon her and she took recourse to divorce proceedings only in the year 1991 as it was unbearable. She, therefore, urges that merely because Shubhada bore the trouble for such a long time patiently which is in fact her virtue ought not to make the Court look into the matter with any suspicion or with tainted glasses.

Upon making the submission our attention is invited to admissions made by two witnesses examined on behalf of Sharadchandra.

It is true that Smt. Kusum Krishna Kanhere and Rameshchandra Raghunath Divekar have been examined on behalf of Sharadchandra. For that matter Kusum Krishna Kanhere is the aunt of Sharadchandra and she admitted in her cross- examination that Shubhada by nature is tolerant. Shri Rameshchandra R. Divekar who is the elder brother of Sharadchandra admitted that Shubhada had told him sometime after the thread ceremony that it has become unbearable for her to live with Sharadchandra.

We fail to understand in what manner the virtue of being patient can help Shubhada in the matter of viewing her case of the cruelty alleged by her against her husband.

It is true that Rameshchandra Divekar accepted that Shubhada told him sometime in the year 1989 that it has become unbearable for her to reside with Sharadchandra. It is common ground that on 10th of March, 1990 Shubhada left matrimonial house and viewed in that context the statement made by her to Rameshchandra is her own ipse dixit.

We have already highlighted the so-called allegations of cruelty and the incidents quoted by Shubhada in her evidence and her two witnesses.

Several doubts have arisen in our mind as to whether the allegations of cruelty are at all justified so as to break the matrimonial bond in this particular case and/or the allegations are such that the marriage has become irretrievable.

This petition has been very vehemently opposed before the Family Court as also this appeal in this Court. For that matter, Mr. Mahashabde, learned Counsel appearing for respondent-Sharadchandra has left no stone unturned to suggest that there is no evidence worth the name to establish that there had been strained relationship between the two spouses so as to justify the judicial divorce between them. He highlighted several aspects of the matter including variance in pleadings, notices addressed as also in evidence, to suggest that the entire case is based more on concoction than real. Incidents are trivial in nature even if accepted urges Mr. Mahashabde.

In view of the stand adopted on behalf of the husband, we gave our rapt attention to the evidence on record and to the pleadings to find out whether any interference is justified in the present appeal.

It may be mentioned that before the institution of the matrimonial petition sometime after the desertion of matrimonial house, a notice was addressed on her behalf by her Advocate on 30th March, 1991 more than one year later. In the notice it is alleged that Sharadchandra made representation to Shubhada as well as her maternal uncle Murlidhar Mate and other relatives that he intends to have his own independent business and workshop and to have a factory in Pune and after engaging himself in business for sometime he will settle down in a foreign country and that way proposed to Shubhada for marriage. However, when the petition came to be filed the averment in Para-1 thereof the version is that Sharadchandra made a representation while proposing marriage to Shubhada that he is doing business in partnership with his brother in the name and style of M/s. Techno Craft and that soon he would settle down in United States of America and in the meantime he would start his own manufacturing unit in the premises purchased by his father at Paud Phata, Pune and that way made Shubhada accept proposal and that is how the marriage was celebrated on 20th May, 1975. Apart from such variance, very significantly neither the so-called misrepresentation nor allurement/enticement finds place in the deposition of Shubhada. Apart from these, some embellishments are also noticed during the course of her evidence. In that she even stated that one time Sharadchandra threatened her and her uncle that he would bring Goondas to settle the score with them. Shubhada also made a statement that in July, 1981 some-time before the birth of Yash when she had gone to the matrimonial home of Dr. Medha Patankar, the respondent tried to press her neck. In fact such a serious incident never found place either in the notice or in the pleadings. This apart, Shubhada went to the extent of saying that Sharadchandra threatened to burn her and that is why she left the matrimonial house on 10th of March, 1990. There was no reference to any threat by burning at any time either in the notice or in the pleadings. Mr. Mahashabde, therefore, is justified in contending that embellishments are added to lend colour to the case and secondly existence of variance in the pleadings and evidence.

A special mention is required to be made upon reading the evidence for what emerges is that Sharadchandra was well-known to Mate brothers Vidyadhar, Damodar and Murlidhar, maternal uncles of Shubhada. Before the marriage, there was involvement of these maternal uncles at-least two of them if not all three. It also emerges from the evidence that the engagement took place about six months prior to the marriage ceremony and Shubhada herself admits that she had been going to her would be matrimonial house and used to move with Sharadchandra prior to her marriage. It is inconceivable that Shubhada did not know the background of Sharadchandra. Besides, Mate brothers are involved everywhere after the marriage. Therefore, these Mate brothers are material witnesses for they knew the relationship between the parties at all times. They were, however, not examined. In our view, an adverse inference can be drawn against Shubhada for not examining any of them. Possibly an inference can also be drawn that at least they do not support Shubhada for divorcing Sharadchandra.

Similarly Dr. Medha Patankar is not examined to prove that the respondent- Sharadchandra created some trouble in her maternity home when she refused permission to Sharadchandra to view the delivery. She would have thrown light on the incident and Shubhada''s version belies her because second child Tanvi was also born at the same maternity home.

Shubhada must have derived sufficient knowledge about the activity of Sharadchandra even before the marriage. For that matter it is in evidence that once Sharadchandra returned from the short course in Merchant Navy, he got himself employed at the factory unit of his .elder brother who is an Engineer. Shubhada also knew that Sharadchandra was educated only upto S.S.C. It is also pertinent to note that when Shubhada was married she had just completed her 12th standard. Evidence bears out that she did her B.Com. degree course after her marriage. This in terms shows that Sharadchandra allowed her to complete her education. Viewed in this context, it is not understood as to how Shubhada maintains that within short time of her marriage she found that Sharadchandra''s behaviour uncommon etc. It is equally relevant to notice that Sharadchandra engaged himself in a small workshop of winding motors and transformer and once son Yash was born he started transport business in the name and style of ''Yash Transport''. A little later when Tanvi was born he started another venture known as ''Tanvi Carrier''. It is in evidence that Shubhada used to assist not only on the domestic front but also in the business of Sharadchandra. For that matter she used to assist him and advise him in matters and what is more for the purposes of tiding over some financial constraint, she even allowed Sharadchandra to sell some of her ornaments to raise money. From the evidence, it also emerges that the spouses did not merely restrict themselves to a honey-moon after the marriage at Ooty but from time to time it appears that the couple took holidays at different places and that too in the company of the common friends and their close relations. Such outings included places like Goa, Ganapati-Pule, and Amboli. For that matter a trip was made in company with Shri and Smt. Kelkar in the year 1988 to Goa and it is further important to notice that while they were in Goa they were staying with Vidyadhar Mate, maternal uncle of Shubhada. The trip at Ganapati- Pule made by the couple included Swati and her brother Ravindra and parents and that was as late as 1989. There is also evidence to suggest and for that matter Swati, P.W.3 has clearly admitted that apart from her, elder brother Ravindra who is Architect by profession, used to come and stay in the house of Sharadchandra at Pune.

An attempt was made on behalf of Sharadchandra by his learned Counsel Mr. Mahashabde to contend that the real bone of contention between the parties is that the petitioner and more particularly her family members believe that the business in which respondent-Sharadchandra is engaged in below their dignity. According to him, this is the reason for which Shubhada had instituted the present proceedings for divorce. We must in all fairness mention that what is contended before us by Mr. Mahashabde is a mere inference and there is no material to suggest that Shubhada had instituted the present petition only because her family members on the father''s side believe that the business in which Sharadchandra is engaged is below their dignity.

We are constrained to observe that we have not been able to find out the answer as to why Shubhada developed cold relationship towards her husband in the year 1990. Going by the evidence on record and even looking beyond it, we are more than convinced that relationship was not strained as late as middle of 1989.

Another tell-tale of the matter is that in a span of about 10 years two issues are born out of the wedlock. We have already mentioned that Yash was born on 26th of July, 1981 and Tanvi on 17th of November, 1985. An attempt is indeed made by Shubhada in her petition that despite cruelty suffered by her she went for the first child with the hope that with the coming of the child things will be alright and matrimonial home will become happier. It stands to reason to record a finding on her own case that the hopes of Shubhada did not bear her fruits but then the second child Tanvi was born on 17th November, 1985. It is interesting to notice that Shubhada once again says that she went ahead for the second child again only with a fond hope that with the coming of the second child peace would be restored in the matrimonial house. In our view, the story made by her appears to be some sort of foundation in anticipation to disarm her husband of a legitimate defence that all things were alright between the parties until desertion. The allegations of banging utensils and breaking furniture, doors and windows are creations of ground for divorce. Such acts if were to happen then the owner of the house Shri Moreshwar Anant Desai would have said so. But when examined on behalf of Sharadchandra as a witness he found this next door neighbour couple to be having a very good relationship.

This being the tell-tale, it is impermissible for this Court to dissolve marriage between Shubhada and Sharadchandra on some trivial events.

We are also convinced that this is not a completely irretrievable marriage. The fact remains that Sharadchandra has not made any allegation against Shubhada and he has shown remarkable restraint in the matter. In our opinion, it is still open to the parties to join hands if not for themselves at least for the sake of their little ones.

In this view of the matter, nothing survives in the appeal and the same is dismissed.

Accordingly, appeal dismissed.

Parties are, however, left to bear their own costs.