Vasant vs Pushpa

V.A. Naik, J—By this Family Court Appeal, the appellant-husband challenges the judgment of the Family Court, Nagpur, dismissing the Hindu Marriage Petition bearing No. A-172 of 1997, filed by the appellant-husband for a decree of divorce on the ground of cruelty.

The appellant-husband had filed a Hindu Marriage Petition under Section 13(1)(ia) of the Hindu Marriage Act for a decree of divorce. The marriage between the parties was solemnized on 17/05/1981 at Dhapewada. Two sons and a daughter are born from the wedlock. It is pleaded by the husband in the Hindu Marriage Petition that after the marriage, the parties resided at Nagpur for about two months and thereafter they lived at Mahurzari for about seven years. It is pleaded that during the stay of the wife at Mahurzari, she did not behave properly with the husband and picked up quarrel without any rhyme or reason. It is pleaded that the wife threatened the husband that she would implicate the husband and his relatives in false criminal cases. It is pleaded that the wife was very obstinate and she did not wish to improve her behaviour towards the husband. After leaving Mahurzari, according to the husband, the parties resided at Kalmeshwar for about five years. It is pleaded that the husband was serving as a teacher in the Zilla Parishad Primary School at Bramhanwada. It is pleaded that the husband was required to leave the house at 8.10 a.m. in the morning and returned home after attending his duties at 7.00 p.m., as Bramhanwada is at a distance of 16 kilometers from Kalmeshwar. It is pleaded that the wife was leading an adulterous life with Shri Anil Sangode, who was serving as a Gram Sewak when the parties were residing at Kalmeshwar. It is pleaded that Shri Anil Sangode was residing as a tenant in one of the rooms of the house of the husband. It is pleaded that on 25/07/1994 when the husband returned to his house, he saw his son Dattu weeping and when questioned, Dattu narrated that his mother is leading an adulterous life with Shri Anil Sangode. It is pleaded that the husband did not believe the statement made by his son Dattu, but after making enquiry from his neighbours, the husband became aware that his wife was living an adulterous life. It is pleaded that the husband and his children had to suffer great mental trauma because of the behaviour of the wife. It is pleaded that the husband had to leave Kalmeshwar in view of the aforesaid incident. It is pleaded that the husband and the wife resided at Nagpur in Wardhaman Nagar for about two years after they left Kalmeshwar. It is pleaded that after two years of residence at Wardhaman Nagar, the parties started residing at Deshpande Layout. It is pleaded that the husband informed the parents of the wife about the cruelty inflicted by her and hence, in the month of February, 1996 in the presence of her parents, the wife admitted in writing in the office of Advocate Shri Sonare that she was misbehaving with the husband. It is stated that the wife had admitted in the said document executed in the presence of her parents and several other respectable persons of the locality that she had threatened the husband that she would implicate him and his relatives in false criminal cases. It is pleaded that the wife has admitted in the said document that she had attempted to commit suicide by pouring kerosene on herself and that she would mend her ways and behave properly. It is pleaded that the wife started residing with the husband after the said compromise, however, immediately thereafter, she used to pick up quarrel with the husband and threaten him. It is pleaded that after the wife started residing with her husband in the year 1997, it was learnt by the husband from his daughter that the wife had brought some poisonous substance in the house which she would have administered to the husband. It is pleaded that his wife and the wife and the daughter of the landlord assaulted the sons of the petitioner with chappal and threatened to kill them. It is pleaded that the husband was compelled to live separately since then. The husband sought a decree of divorce on the ground of cruelty.

The wife filed the written statement and denied the claim of the husband. The wife admitted that after the marriage, the parties were residing at Nagpur for some time and thereafter at Mahurzari for seven years. It is pleaded that the parties shifted to Kalmeshwar and stayed there for fourteen years. It is pleaded that the husband did not have any grievance against the wife for a long time after the marriage. It is denied that the wife treated the husband and the children with cruelty. The adverse allegations made by the husband against the wife were specifically denied by her. The wife pleaded that the husband was taking undue advantage of the document executed on 06/02/1995 without considering that the said document was executed by the wife only with a view to cohabit with the husband, as the parties were residing separately at that time. It is pleaded that the wife decided to sign the said document though there was no fault on her part only with a view to return to the matrimonial home. It is pleaded that she joined the company of the husband and there was no reason for the husband to complain. The pleading in regard to the assault on the sons of the parties by the wife and the wife and the daughter of the landlord is specifically denied. It is pleaded by the wife that the husband wanted to get rid of the wife only with a view to remarry with the niece of Shri Deshkar, who was also a tenant in the house of the husband at Kalmeshwar. It is pleaded that the husband has levelled false and scandalous allegations against the wife in respect of her alleged relationship with Shri Anil Sangode. It is pleaded that the husband used to beat the wife whenever the mother of the wife came to the matrimonial home to seek the return of the amount lend by her towards the construction of the house of the husband at Kalmeshwar. The wife pleaded that after she was brought back to the matrimonial home in the year 1994, the husband behaved well with the wife only for some time and thereafter started ill-treating her. It is pleaded by the wife that she had reported the matter to the Police and the Police had detained the husband. It is pleaded that she had requested the Police not to arrest the husband and, therefore, he was sent back along with her. It is pleaded that since the husband was abusing the wife and also the landlady, the landlady had slapped him on 20/04/1997. It is pleaded that the husband left the rented house in Deshpande Layout along with the children after the said incident without informing the wife and after waiting for the husband in the house for nine months, the wife was left with no alternative, but to return to her parental'' house at Dhapewada. The wife denied all the adverse allegations levelled by the husband against her and sought for the dismissal of the petition filed by the husband.

The husband examined himself and also examined his son Dattu, his daughter Vaishali and his next door neighbour Shri Rambhau Mirashe to prove his case. 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 04/10/2005, dismissed the petition filed by the husband. The Family Court held that the husband had failed to prove that the wife had treated the husband with cruelty. The judgment of the Family Court is challenged by the husband by this Family Court Appeal.

Shri Kotwal, the learned counsel for the husband, submitted that the Family Court was not justified in dismissing the petition filed by the husband. It is submitted that the evidence of the husband and his three witnesses would clearly show that the wife had treated the husband with cruelty. It is submitted that when the parties were residing at Kalmeshwar, the wife was leading an adulterous life with Mr. Anil Sangode. It is submitted that the evidence of the husband, Dattu and Vaishali clearly proves that the wife had illicit relationship with Mr. Anil Sangode. It is submitted that even after the wife was given a chance, on her signing the document at Exhibit-90 in the office of Advocate Shri Sonare to mend her ways, the wife did not mend her ways and continued to behave badly with the husband. It is submitted that the wife always threatened the husband that she would commit suicide and implicate the husband and his family members in false criminal cases. It is submitted that in the year 1997, the wife along with the wife and the daughter of the landlord assaulted Dattu. It is submitted that it was realised by the husband in the year 1997 that it was not possible for him to reside with the wife in the matrimonial house and hence, the husband left the rented house in Deshpande Layout and started residing separately with the children. It is submitted that the marriage has irretrievably broken down and the parties are residing separately since the year 1997. It is submitted that in such circumstances, the Court may grant a decree of divorce, dissolving the marriage solemnized between the parties. The learned counsel for the husband relied on the judgments, reported in Malathi Ravi Vs. B.V. Ravi, (2014) AIRSCW 4283 : (2014) 2 DMC 483 : (2014) 3 RCR(Civil) 621 : (2014) 8 SCALE 54 : (2014) 7 SCC 640 and 2003 (6) BCR 49 to canvass that in case of irretrievable break down of marriage, the Court would be entitled to grant a decree of divorce. Also, reliance was placed on the judgments, reported in 2012 (7) ALL MR 417 and 2010 (4) ALL MR 21 to canvass that unreasonable threats by the wife of committing suicide and of implicating the husband in false criminal cases would amount to cruelty.

On hearing the learned counsel for the appellant-husband and on a perusal of the original record and proceedings, it appears that the following points arise for determination in this Family Court Appeal.

"(1) Whether the husband proves that the wife treated him with cruelty?

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

(3) 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 would not like to repeat the pleadings, as we have already given a gist of the pleadings in the earlier part of the judgment. The allegation of the husband against the wife is that she had an illicit relationship with Shri Anil Sangode, their tenant, when the parties were residing at Kalmeshwar. The other allegation of the husband is that the wife was threatening him that she would commit suicide and also implicate him in false criminal cases. It is also alleged by the husband that the wife had assaulted their son Dattu with the assistance of the wife and the daughter of the landlord, at Deshpande Layout. The husband had examined himself and three other witnesses including his two minor children to prove the illicit relationship between his wife and Shri Anil Sangode. Apart from the fact that there are material contradictions in the statements made by the husband and his witnesses in respect of the alleged illicit relationship, the Family Court has rightly held that the allegations in respect of the illicit relationship cannot be considered, as admittedly, the parties resided together for nearly three years at Nagpur after they left Kalmeshwar. The Family Court has, therefore, rightly discarded the evidence tendered by the husband on the ground of illicit relationship allegedly maintained by the wife with Shri Anil Sangode, as the husband had condoned the said act of cruelty, even assuming that the wife was so involved.

It is surprising that the husband has examined his daughter Vaishali, who was barely four years of age at the time when the wife was allegedly having an illicit relationship with Shri Anil Sangode. How can a girl of four years of age be able to understand what is illicit relationship. Vaishali, who was aged fifteen years at the time of tendering evidence, stated in her examination-in-chief that she saw her mother and Shri Anil Sangode in a compromising position and her mother threatened her and her brother that she would burn or kill them if they complained in respect of the said act to their father. It is clear from a reading of the evidence of Vaishali that Vaishali was tutored to depose against the wife. On a reading of the entire examination-in-chief, it is clear that a child barely four years of age would not even be capable of understanding the effect of the facts narrated in the examination-in-chief in respect of the illicit relationship. We do not appreciate the conduct of the husband in tutoring his daughter who was fifteen years of age at the time of tendering evidence to depose against her mother not only in respect of any other acts of cruelty but, in respect of her alleged illicit relationship with Shri Sangode. The evidence of Vaishali is not worthy of acceptance. So also, the evidence of Dattu, the son of the parties, also cannot be believed. On a combined reading of the evidence of Dattu and Vaishali, it is clear that the husband tutored his two children to depose against their mother in respect of her alleged illicit relationship. The husband could have examined himself in respect of the incident as he has done and also examined any other independent witness. The husband has examined Rambhau Mirashe, the next door neighbour residing in Kalmeshwar. Shri Mirashe stated in his evidence that he had gone to the house of the husband for some help in the afternoon when the door was locked from inside and the same was not opened for a considerable time, despite his call. It is stated by Shri Mirashe in his evidence that he could hear the whispers of the wife and Shri Sangode from inside the house of the husband. It is difficult to believe the evidence of Shri Mirashe. The witness appears to be an interested witness as he has admitted in his cross-examination that he is a distant relative of the husband. Shri Mirashe admitted in his evidence that the husband used to be out of the house from 11.00 to 5.00 p.m. and he had visited the house of the husband on a working day between 3.30 to 4.00 p.m. It is difficult to gauge why Shri Mirashe went to the house of the husband between 3.30 to 4.00 p.m. on a working day when he was aware that the husband was required to attend his school from 11.00 to 5.00 p.m. Shri Mirashe had also admitted in his cross-examination that the wife had sent him two letters not to ill-treat her and to drag her out of the matrimonial home and he had not replied to the letters. It is clear from the aforesaid admissions of Shri Mirashe that not only is Shri Mirashe an interested witness but, Shri Mirashe is also not a trustworthy witness.

Apart from the fact that the husband has failed to prove that the wife had illicit relationship with Shri Sangode, it appears that the husband had condoned the alleged act of the wife, even assuming that he had proved it, as the wife lived with the husband in the matrimonial home for nearly three years after the alleged incident at Kalmeshwar. The parties resided at Nagpur till 1997 after the husband permitted the wife to reside in the matrimonial home despite the alleged illicit relationship between the wife and Shri Sangode in the year 1994. The Family Court has rightly held that in view of the condonation of cruelty, the husband could not have fallen back on her illicit relationship to seek divorce on the ground of cruelty.

Certain other allegations were also levelled against the wife for substantiating the case that the wife had treated the husband with cruelty. According to the husband, the wife was threatening him that she would commit suicide and implicate him in false criminal cases. The Counsel for the husband has relied on the compromise deed (Exh. 90) recorded between the parties in the presence of Advocate Sonare and the parents of the wife and some other persons, in this regard. The husband has mainly relied on the so-called admissions by the wife in the document at Exh. 90 to prove his case that the wife was threatening him that she would commit suicide and implicate him in false criminal cases. On a reading of document at Exh. 90 in its entirety, we find that the signature of the wife on the said document was secured by the husband only on a promise to take her back in the matrimonial home. The wife has categorically pleaded in the written statement that she had signed Exh. 90 only because her husband had agreed to accept her in the matrimonial home. It is pleaded by the wife that the husband forced the wife to sign the document, Exh. 90 though there was no fault on her part and she had not acted in the manner as stated in the document. The wife also stated in her evidence that the husband had taken the wife to Advocate Sonare and she was asked to sign the compromise deed. It is stated by the wife that since the wife did not wish to displease the husband and wanted to live happily with him, she had signed the document, at Exh. 90. The wife stated in her evidence that she had no knowledge that her parents were also called by the husband in the office of Advocate Sonare. The wife further stated that she was asked to sign the document Exh. 90, without reading the same or explaining the contents thereof to her. It appears that no woman would willingly execute a compromise deed, in the nature of a deed, at Exh. 90. It is stated in the compromise deed that though the parties were married for 16 years, for the past some years, there were differences between them. It is mentioned in the compromise deed that the wife was at fault and she was not able to live up to the expectations of the husband. It is stated that the wife used to humiliate the husband by her bad words and abuses. It is stated that the wife had threatened the husband that she would commit suicide by pouring kerosene on herself and had also threatened the husband that she would implicate him and his relatives in false criminal cases. It is stated that the wife was repenting about her behaviour and she had agreed to mend her ways and reside happily with the husband. We find that on none of the pages of the compromise, the parties have either signed or endorsed. Only on the last page of the document, which is otherwise blank, the signature of the wife is found. So also, about ten persons appear to have signed on the last page of the document, that is blank. It appears that this document was not read to the wife and the contents of the same were not explained to her before her signature was sought. In any case, the wife has clearly stated that she has signed on the document, at Exh. 90 without knowing the contents thereof, only with the desire to again enter the matrimonial home and reside happily with the husband. We have said that earlier, and we reiterate that normally, a wife would never state or admit the facts, as stated in the document at Exh. 90. We do not find on a reading of the evidence of the husband and his witnesses that the husband is successful in proving that the wife was threatening him that she would commit suicide and implicate him in false criminal cases. Also, we do not find from the evidence of the husband and his witnesses that the wife and the son of the landlord had assaulted Dattu. If it was the case of the husband that Dattu was beaten by the respondent and the landlord, the husband would not have suggested to the wife in her cross-examination that the landlord had beaten the husband with a chappal. On a reading of the evidence, both oral and documentary, it is clear that the husband has failed to prove that the wife had treated him with cruelty and hence was entitled to a decree of divorce. The judgments, reported in Malathi Ravi Vs. B.V. Ravi, (2014) AIRSCW 4283 : (2014) 2 DMC 483 : (2014) 3 RCR(Civil) 621 : (2014) 8 SCALE 54 : (2014) 7 SCC 640 - Malathi Ravi, M.D. v. B.V. Ravi, M.D., 2012 (7) All M R 417 - Deepak S/o. Toshwantrao Raghorte v. Smt. Priyanka W/o. Deepak Raghorte , Ramratan Sunwani Vs. Smt. Maya Sunwani, (2010) 3 BomCR 856 : (2011) 1 DMC 440 and Satish Sitole Vs. Smt. Ganga, AIR 2008 SC 3093 : (2008) 3 CLT 722 : (2008) 4 CTC 285 : (2008) 2 DMC 167 : (2008) 10 SCALE 54 : (2008) 7 SCC 734 : (2008) AIRSCW 5190 : (2008) 5 Supreme 198 and relied on by the Counsel for the husband, cannot be made applicable to the case in hand. In the judgment reported in Malathi Ravi Vs. B.V. Ravi, (2014) AIRSCW 4283 : (2014) 2 DMC 483 : (2014) 3 RCR(Civil) 621 : (2014) 8 SCALE 54 : (2014) 7 SCC 640 and Satish Sitole Vs. Smt. Ganga, AIR 2008 SC 3093 : (2008) 3 CLT 722 : (2008) 4 CTC 285 : (2008) 2 DMC 167 : (2008) 10 SCALE 54 : (2008) 7 SCC 734 : (2008) AIRSCW 5190 : (2008) 5 Supreme 198 , the Hon''ble Supreme Court had exercised the powers vested in the Hon''ble Supreme Court under Article 142 of the Constitution of India to grant a decree of divorce on the ground of irretrievable breakdown of the marriage. In the absence of any provisions in the Hindu Marriage Act empowering the Court to grant a decree of divorce on irretrievable breakdown of the marriage, this Court would not be in a position to grant a decree of divorce in favour of the husband, merely because the parties are residing separately for long. The judgment report in 2012 (7) All M R 417 also cannot be applied to the case in hand. In the said case, it was proved by the husband that the wife was in the habit of creating scenes in the colony and threatening to commit suicide. In the instant case, the husband has failed to prove his case in that regard. So also, the judgment reported in 2010 (4) All MR 21 cannot come to the rescue of the husband in seeking a decree of divorce as in that case also, the husband had been successful in proving that the wife was threatening the husband of committing suicide and was attempting to commit the same. The Family Court has rightly appreciated the evidence of the parties in the right perspective to hold that the husband has been unsuccessful in proving his case. We do not find any reason to interfere with the judgment of the Family Court.

Hence, for the reasons aforesaid, the Family Court Appeal is dismissed with no order as to costs.