Vikash vs Vidya

V.A. Naik, J—The appellant-husband has challenged the common judgment of the Principal Judge, Family Court, Nagpur, dated 11/06/2012, dismissing the Hindu Marriage petition filed by the husband for a decree of divorce on the ground of cruelty and desertion and allowing the petition filed by the wife under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, by these appeals.

The marriage between the appellant-husband and the respondent-wife was solemnized in Arya Samaj Mandir, Hansapuri, Nagpur on 19/01/2009. It is not disputed that neither the parents of the husband nor the parents of the wife were present at the time of the solemnization of the marriage. It is also not in dispute that the husband resided with his parents and the wife resided with her parents after the solemnization of the marriage on 19/01/2009. At the relevant time, the husband and the wife were working as Lecturers in Suyash College of Education. It is the case of the husband that the wife had induced the husband by one way or the other to develop the relations with her. On the other hand, it is the case of the wife that the friends of the husband had persuaded her to get married with the husband and on their guarantee, she had married him. In this background, the marriage was solemnized in Arya Samaj Mandir. It was the case of the husband in the petition filed by him for a decree of divorce that after the marriage, the husband requested the wife to live together at his parents'' house, but the wife refused to live with his parents and asked him to purchase a flat at Pachpaoli, Nagpur. It is pleaded by the husband that the marriage was not consummated, as the parties were residing separately. It is pleaded by the husband that though the parties were residing separately, the wife always picked up quarrel with the husband on flimsy grounds. It is pleaded that during the said period, the wife had requested the husband to dissolve the marriage. It is pleaded that the husband realised that it was not possible for the husband and wife to live together, in view of the differences in their thoughts, temperament, habits and the lack of understanding between them. It is pleaded that the wife always threatened the husband that she would lodge complaints against him. It is pleaded that the brother of the wife is a practicing Advocate and he also threatened to involve the husband and his parents in a false case. It is pleaded that on 19/01/2010, the parents of the husband and the relatives visited the house of the parents of the wife and tried to settle the matter. It is pleaded that in the meeting on 19/01/2010, the brother of the wife tried to beat the husband in presence of the family members and friends. It is pleaded that on 03/03/2010, the wife lodged a false report against the husband and his family members. It is pleaded that the husband tried to settle the differences, but he was not successful. It is pleaded that the false report filed by the wife caused great mental stress and trauma to the husband. On the aforesaid pleadings, the husband sought a decree of divorce on the ground of cruelty and desertion.

The wife filed the written statement and denied the claim of the husband. The wife admitted that the marriage between the parties was solemnized in Arya Samaj Mandir and they resided separately with their respective parents, after the marriage. It is pleaded by the wife that due to harassment by the husband and his friends, Ritesh Chimote and Roshan Lanjewar, the wife was constrained to leave the job in Ayush College of Education and was required to join the services at Pandav College. It is pleaded that the husband and his friends started defaming the wife and, therefore, she was constrained to leave the job. It is pleaded that the friends of the husband insisted that the husband had love and respect for her and that she would not find a life partner like the husband and, therefore, she decided to register the marriage between herself and the husband. It is pleaded that before the marriage with the husband, there was a proposal for her from a doctor and there was every possibility that her marriage would be settled with the doctor. It is pleaded that out of jealousy and to show that the husband loves her, the husband and his friends induced the wife to marry him so that her life would be secured. The wife admitted that neither her relatives nor the relatives of the husband were present at the time of the marriage. It is pleaded that the marriage between the parties was consummated though they were residing separately. It is pleaded that on 19/01/2009, the husband''s father and his friends had been to the house of the parents of the wife to inform that despite the marriage between the parties, the husband was not ready to cohabit with her and the marriage cannot be treated as a marriage, at all. It is pleaded that on 03/03/2010 the wife made a call to the father of the husband and the husband and went to the house of the husband to tell him that she wanted to cohabit with him and was ready to reside in her matrimonial home. It is pleaded that the husband and his father, however, picked up quarrel with her and the father of the husband even slapped her. It is pleaded that the mother, the aunt and the grandmother of the husband and his friend Ritesh joined the husband to beat the wife, as they desired that the marriage should be dissolved. It is pleaded that the husband and his family members kept the wife in one room and locked the door. It is pleaded that in view of the aforesaid incident, a complaint was required to be lodged in the Police station. It is pleaded that a complaint was registered against the husband and his family members for the offences punishable under Sections 498-A, 342, 506, 323 read with Section 34 of the Penal Code. It is pleaded that the husband has himself deserted the wife and the case tried to be made out by the husband is false. The wife prayed for the dismissal of the petition filed by the husband. The wife filed the petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act on almost identical allegations and pleadings as made in the written statement.

On the aforesaid pleadings of the parties, the Family Court framed the issues in both the petitions and the husband examined himself and three other witnesses. The wife also examined herself and her sister. On an appreciation of the evidence on record, the Family Court allowed the petition filed by the wife for restitution of conjugal rights while dismissing the petition filed by the husband for a decree of divorce on the ground of desertion and cruelty. The judgment of the Family Court is assailed by the husband by two separate Family Court Appeals.

Shri Tiwari, the learned Counsel for the appellant-husband, submitted that the Family Court was not justified in dismissing the petition filed by the husband for a decree of divorce, and allowing the petition filed by the wife for restitution of conjugal rights. It is submitted that the wife has filed a false complaint against the husband and his family members, and one of his friends, for the offence punishable under Section 498-A of the Penal Code. It is submitted that the complaint filed by the wife is false and baseless, and though the friend of the husband could not have been involved in the complaint under Section 498-A of the Penal Code, he has been unnecessarily dragged in those proceedings. It is submitted that the parties did not reside together even for a single day, after the solemnization of the marriage on 19/01/2009. It is submitted that the marriage between the parties was solemnized in the Arya Samaj Mandir, and the parents of the respective parties were not present at the marriage ceremony. It is submitted that both the parties resided with their respective parents, even after the solemnization of the marriage on 19/01/2009, and the wife was not ready to join the company of the husband in the matrimonial home. It is submitted that when the husband and his family members went to the house of the parents of the wife on 19/01/2010, the brother of the wife went to the extent of beating the husband. It is submitted that when the wife came to the matrimonial home on 03/03/2010, she created a scene in the matrimonial home and threw articles. It is submitted that the wife was not ready to join the company of the husband and was also misbehaving with him. It is stated that the wife talked rudely with the husband and threatened to commit suicide, and implicate the husband and his family members in false case. It is submitted that considering the circumstances of the case, the Family Court ought to have granted a decree of divorce in the petition filed by the husband. It is submitted that the wife has admitted in her cross examination that even before and after the marriage, she was proposed by a doctor. It is submitted that the husband and his family members were required to undergo great mental stress and trauma because of the false complaint filed by the wife. The learned counsel thus, sought for the reversal of the judgment of the Family Court.

Shri Bhagwani, the learned Counsel for the respondent-wife, supported the judgment of the Family Court, and submitted that the Family Court has rightly held, on a proper appreciation of the evidence on record that the husband had been unsuccessful in proving that the wife had treated him with cruelty. It is submitted that though the husband has examined himself and three other witnesses, the Family Court has found that the evidence tendered on behalf of the husband was not sufficient for holding that the wife treated the husband with cruelty. It is submitted that because the wife was harassed by the husband and his family members, she was required to register a complaint against them under Sections 498-A, 342 and 323read with Section 34 of the Penal Code. It is submitted that in this case, the husband has deserted the wife, and the case tried to be made out by the husband is false. It is submitted that the wife was locked in one of the rooms in the matrimonial home on 03/03/2010, and hence, the parents of the wife had to approach the Police and the wife was freed. It is stated that in this background, the wife had lodged a complaint against the husband and his family members in the Police station on 03/03/2010. It is submitted that the husband had tried to take advantage of his own wrong and hence, the Family Court has rightly dismissed the petition filed by the husband for a decree of divorce. It is submitted that since the husband had refused the company of the wife, without any just or reasonable cause, the Family Court rightly granted a decree of restitution of conjugal rights in favour of the wife. The learned counsel sought for the dismissal of the appeal.

On hearing the learned counsel for the parties and on a perusal of the original record and proceedings, it appears that the following points arise for determination in this appeal:

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

(II) Whether the husband has proved that the wife has deserted him?

(III) Whether the wife is entitled to a decree of restitution of conjugal rights?

(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. We have already referred to the pleadings of the parties in detail, in the earlier part of the judgment. Hence, it would now be necessary to consider the evidence of the parties. The husband had entered the witness box and reiterated the statements made in the Hindu Marriage Petition, in his examination-in-chief. The husband had admitted in his cross examination that at the time of marriage of the parties, the elder sister of the wife was unmarried, and the parties decided to reside with their respective parents after the marriage. The husband admitted that after the registration of the marriage, the parties used to meet each other. The husband denied the suggestion that the wife had never threatened to lodge a false complaint against him and his family members in the police station. The husband admitted that when he went to the house of the parents of the wife, her relatives and family members had no knowledge about the marriage. The husband denied the suggestion that he was never threatened by the brother of the wife, who was an Advocate. The husband denied the suggestion that on 19/01/2010, he went to the house of the parents of the wife to disclose about the marriage and also demanded a divorce. The husband admitted that Shri Ritesh and Rohan Lanjewar are his friends. It is however, denied that the two aforesaid friends tried to convince the wife, that he was the best match for her, and that she should marry him. The husband admitted that the two aforesaid friends were present at the time of marriage. The husband admitted that the marriage was consummated. The husband, however, denied that he started harassing the wife by denying the marriage and, therefore, she was compelled to leave the job in Suyash College. The husband denied the suggestion that he and his father tried to show that the marriage was not performed. The husband admitted that he and his parents were in the Police station, and that the Police has registered offences under Sections 498-A, 342, 506 and 322 of the Penal Code, against the husband and his family members. The husband denied the suggestion that he had defamed the wife and treated her with cruelty. There was no suggestion from the side of the wife in regard to the evidence in respect of the threats by the wife to commit suicide, though there is a suggestion that the wife had threatened the husband that she would lodge false complaints against the husband and his family members.

The husband examined his father Shri Rajiv Bhagwatkar. The father of the husband stated in his examination-in-chief that he was called to his residence, as he received a call on 03/03/2010 that the wife had come to the matrimonial home and she was creating a nuisance in the house. The father of the husband deposed that the wife had broken some articles in the house and was shouting loudly. It is stated by the witness in his examination-in-chief that he told his son to go to the Police Station and lodge a complaint. The witness admitted in his cross-examination that before going to the house of the parents of the wife on 19/01/2010, he was not aware about the marriage. The witness denied the suggestion that the wife did not insult him. The witness admitted that he was thinking well of his daughter-in-law (wife) when he went to her parents house on 19/01/2010. He denied the suggestion that when the wife came to his house on 19/01/2010, she wanted to reside in the house and she did not create a scene. He denied the suggestion that he behaved badly with the wife, as he wanted dowry from her parents. He further denied the suggestion that before the Police also he talked about dowry. The witness also denied that he was not happy with the marriage of his son with the wife.

Smt. Jyoti Meshram was examined by the husband as his witness. She deposed that she saw the wife throwing the articles and shouting. She stated that as she is the neighbour of the husband, she had witnessed the incident. The witness admitted in her cross-examination that she had no knowledge about the happenings in the house of the husband on 03/03/2010 before she reached there. She, however, denied the suggestion that she had deposed falsely before the Court in regard to the shouting and throwing of articles by the wife. She denied the suggestion that she was deposing falsely because she is the neighbour of the husband. The husband examined Shri Ritesh Chimote, his friend, who was also working in Suyash College, where the husband was working. He stated in his examination-in-chief that he did not know what happened after the marriage, but he had heard about the disputes between the parties. The witness denied the suggestion in the cross-examination that all the friends of the husband had tried to convince the wife to perform the marriage with the husband, as he was a good match for her. The witness admitted that even after the marriage, both the parties resided in the house of their respective parents. The witness admitted that on 19/01/2010 he went to the house of the parents of the wife along with the husband and his parents. The witness denied the suggestion that they had admitted the marriage, but the husband had told the parents of the wife that he was intending to dissolve the marriage. The witness admitted that he is one of the accused in the proceedings, for an offence punishable under Section 498-A of the Penal Code. The witness denied the suggestion that the parents of the husband and the husband had demanded money from the parents of the wife in the Police Station. It was denied that the Police had registered the offence against them only because the parents of the husband were demanding money from the parents of the wife.

The wife entered into the witness box and stated in the examination-in-chief that the husband and the wife both were working in Suyash College and the friends of the husband had persuaded the wife to marry the husband. It was stated by the wife in her evidence that the friends of the husband tried to convince her that he was deeply in love with her and since he was working as a Professor and was well educated, her life would be secured, if she marries him. It was stated that in December, 2008, a doctor had proposed the wife and there was a likelihood of settlement of the said marriage. It is stated that the friends of the husband, however, guaranteed the wife that the husband was the only good match for her and that she should marry him and hence, she entered into a wedlock with the husband on 19/01/2009. It is stated by the wife that the husband wanted to marry the wife only because the wife was proposed by some extremely good boys from her community. The wife stated in her examination-in-chief that the parties resided with their respective parents after the solemnization of the marriage, but used to regularly meet each other. The wife stated that the marriage between the parties was consummated. It was stated that while the wife was working at Suyash College, the husband harassed and hurt her, by saying that they were not married and, therefore, she had left the job in Suyash College to join Pandav College. It was stated that even while, the wife was serving in Pandav College, the husband and his friends continued to harass her. The wife stated that the husband was not ready to reside with the wife despite the marriage. It was stated that the wife was residing in the parents'' house on the say of the husband. She stated that there was no question of filing any false complaint against the husband. The wife stated that she went to the house of the husband on 03/03/2010, but the husband and his father started quarreling with her and refused to acknowledge the marriage. It was stated that the father of the husband had assaulted her. It was stated that the other members from the family of the husband and also the friends of the husband came together to beat the wife, as they wanted to ensure that the marriage ties between the parties are severed. It was stated that the husband and his family members locked her in one of the rooms in the house of the husband on 03/03/2010 and hence, the matter was reported to the Police. It was stated that in view of the complaint filed by the wife, the husband and his family members and friends were prosecuted in a criminal case. The wife stated that she was ready to live in the matrimonial home. The wife admitted in her cross-examination that her father was a teacher and her brother is an Advocate and she was earning a sum of Rs. 20,000/- per month from the college where she was serving. The wife admitted in her cross-examination that she had not informed any of her colleagues about the husband and his friends in the college. The wife stated that she had informed about the harassment to her parents. She admitted in the cross-examination that before and after the marriage, she was proposed by a doctor by name Suryabhan. The wife admitted that the parties resided separately despite the marriage. The wife, however, denied the suggestion that she was not residing with him, as she had asked the husband to hire a flat in which they could live together. The wife admitted that on 19/01/2010 the husband and his parents had come to her parents'' house. The wife denied the suggestion that the husband and his parents had come to her parents'' house to take her to the matrimonial home. The wife denied that she had lodged a false report against the husband and his family members on 03/03/2010 on the say of her Advocate brother. It was denied by the wife that she wanted to harass the husband and his family members and so she had filed the petition against him.

The wife examined her sister Smt. Triveni Ramteke as her witness. Smt. Triveni Ramteke stated in her evidence that she became aware about the marriage between the parties only on 19/01/2010 when the husband and his family members went to the house of the parents of the wife to inform them about the marriage and also inform them that the husband was not ready to reside with the wife. It is stated by the witness that on 03/03/2010 a complaint was filed by the relatives of the wife in the Police Station, as she could hear the wife wailing. The witness stated that the wife was beaten and harassed by the husband and his family members on 03/03/2010. The witness admitted in her cross-examination that after 19/01/2010, her family members had not lodged any report to the Police Station nor issued any notice to the husband, though he came to demand divorce.

It is clear from the pleadings and the evidence of the parties that the parties married in the Arya Samaj Mandir on 19/01/2009 without the knowledge and consent of the parents of the parties. Only some of the friends of the husband were present in the marriage ceremony. It is admitted by the parties that after the marriage, the wife did not join the company of the husband in the matrimonial home and they resided separately with their respective parents in their houses. There is only some evidence of the parties in respect of the meetings between the husband and the wife after the solemnization of the marriage. It appears from the case of the husband and it is also not disputed by the wife in her evidence that the husband and his parents went to the house of the parents of the wife on 19/01/2010 for the first time to inform her parents about the marriage. There is some dispute in regard to the reason or cause for which the husband and his parents went to the house of the parents of the wife on 19/01/2010. According to the husband, the husband and his parents had been to the house of the parents of the wife with a view to inform the parents of the wife about the marriage between the parties and to ask her to reside in the matrimonial home, which she refused. However, according to the wife, the husband and his parents came to the residence of her parents only to inform them about the solemnization of the marriage between the parties on 19/01/2009 and that the marriage ties should be severed. Both the parties have tendered evidence in support of their respective cases. It is the case of the husband that the wife was not ready to reside with him and used to threaten the husband that she would file false complaints against him and his family members and also implicate him by committing suicide. The wife has denied the allegations. According to the wife, she was desirous of residing with the husband and so she went to the residence of the husband on 03/03/2010 with a view to reside in the matrimonial home. The case of the wife in this regard is, however, disputed by the husband and his witnesses, as according to them, the wife came to the house of the husband on 03/03/2010 only to create a scene and threw the articles. It is the case of the wife that on 03/03/2010, she was beaten up by the family members of the husband and the father of the husband demanded a sum of Rs. 10,00,000/- from the parents of the wife for dissolving the marriage between the parties. The wife has relied on the complaint made by her in the Police Station in regard to the demand of Rs. 10,00,000/- by the father of the husband for the dissolution of the marriage. Though we were not initially inclined to believe, on the basis of the allegations made by the husband that the wife had falsely implicated them, it appears that the allegations levelled by the wife against the husband and her father-in-law in respect of the illegal demand of Rs. 10,00,000/- for severing the marriage ties are false and baseless. If it is the case of the wife that she was ready to reside in the matrimonial home and the husband and his family members were not ready and willing to accept her in the matrimonial home, there was no reason whatsoever for the husband or his father to demand a sum of Rs. 10,00,000/- from the parents of the wife towards the dissolution of the marriage. If the wife would have been ready for divorce and the husband was not ready for the same then in that case, the husband or his father could have demanded some amount from the parents of the wife towards the dissolution of the marriage. The case of the wife is that she is ready and willing to reside in the matrimonial home and his family members are not willing to accept her. If that be so, in no probability, the husband or his father could demand a sum of Rs. 10,00,000/- from the parents of the wife for severing the marriage ties. In fact, they could have given some amount to the wife with a view to ensure that the marriage ties are severed. We find that the conduct of the wife in lodging such a complaint against the husband and his family members is improper. It is also necessary to note that the wife did not implicate only the husband and his family members in an apparently false case for an offence punishable under Section 498-A of the Penal Code, but also implicated the friend of the husband in the said case. It is difficult to understand as to how a friend of the husband, who is not a family member could be implicated in an offence punishable under Section 498-A of the Penal Code. The action on the part of the wife to file a false complaint against the husband and his parents in respect of the demand of the amount of Rs. 10,00,000/- and the harassment, is required to be frowned upon. If the wife wanted to reside with the husband in the matrimonial home, the wife could not have lodged the false complaint against the husband in respect of his illegal demand of Rs. 10,00,000/- as a consideration for divorce. The lodging of the false complaint by the wife had caused great mental trauma and inconvenience to the husband, his family members and his friends, as all of them were required to secure bail. A wife, who is really harassed by a husband and his family members would be entitled to lodge a complaint for an offence punishable under Section 498-A of the Penal Code, but a wife, who has not resided with the husband even for a single day and who has just visited the house of the husband once on 03/03/2010, cannot be expected to file a case against the husband and his family members in respect of an illegal demand of Rs. 10,00,000/- as a consideration for the dissolution of the marriage ties. We have already recorded the reasons for holding that the complaint appears to be false and baseless. Filing of such a false complaint would clearly tantamount to cruelty.

On a reading of the pleadings and evidence of the wife, we find that the wife is trying to hide and conceal some material facts from the Court. The wife is trying to make a show that she was never in love with the husband even before the marriage and that she was persuaded by the friends of the husband that the husband was the best match for her and that she should marry him. It is most unlikely that a girl would marry a boy without informing her parents and even the parents of the boy if they are not in love. According to the wife, she had married the husband only because the friends of the husband had guaranteed that she would live a secure life if she marries the husband, who was well educated and well placed. The wife has repeatedly stated in her examination-in-chief that she married the husband only in view of the persuasion and guarantee by the friends of the husband. The wife has stated in her evidence that she was proposed by very good boys from their community and even a doctor had proposed her. If that be so, it is difficult to understand how the wife would marry the husband only on the request, persuasion and guarantee by the friends of the husband, without knowledge or concurrence of her parents, specially when the wife is well educated and was well placed at the time of the marriage. We find that despite the marriage, the parties resided with their respective parents and the wife did not reside in the matrimonial home even for a single day. There is hardly any evidence in regard to the marital life between the parties and the consummation of the marriage except the bare word. It could be clearly gathered from the evidence of the parties that but for the performance of the marriage ceremony in Arya Samaj Mandir, Hansapuri, Nagpur, there was no matrimonial relationship between the parties till the husband filed the petition for a decree of divorce and the wife filed a petition for restitution of conjugal rights. If the brother of the wife is an Advocate, the wife ought to have had some good legal advice and should not have filed a false complaint against the husband and his family members and friend in respect of an offence punishable under Section 498-A of the Penal Code. Considering the circumstances of the case, that the parties did not reside together even for a single day and there is no possibility of the parties happily residing under one roof in future, in view of the intervening incidents that took place on 19/01/2010 and 03/03/2010, when the wife filed the false complaint against the husband, his parents and his friends, it would be necessary to grant a decree of divorce by allowing the petition filed by the husband and by setting aside the judgment and decree granting restitution of conjugal rights.

Hence, for the reasons aforesaid, the Family Court Appeals are allowed. The judgment of the Family Court is hereby set aside. The petition filed by the husband for a decree of divorce on the ground of cruelty is allowed. The petition filed by the wife for restitution of conjugal rights is dismissed. In the circumstances of the case, no order as to costs.