Family (FIRA) Appeal No. 50 of 1998,M.J. Petition No. A 599 of 1993

4th February, 2000

Petitioner Counsel: Shri V.G.PAREKH with DINESH S. SHAH
Respondent Counsel: Smt. SUMAN JAIN & Shri. S.K.JAIN

Cases Cited:
Kedar Lal vs. Harilal, A.I.R. (39) 1952 Supreme Court 47 [Para 7]
Ram Sarup Gupta (dead) by LRs. Bishun Narain Inter College, AIR 1987 Supreme Court 1242 [Para 7]
Ram Narain Arora vs. Asha Rani and ors, (1999) 1 Supreme Court cases 141 [Para 7]

JUDGMENT

J.A. PATIL, J. :- The appellant herein is the original petitioner who had filed a petition of divorce against the respondent- wife on the ground of cruelty. The said petition being petition No.A-599/93 was, however, dismissed by the Family Court, Mumbai. Hence this appeal.

2. In short it is the case of the appellant that he was married to the respondent on 22.4.1992 at Mumbai as per the Hindu Vedic rites and that after the marriage both of them lived together in their matrimonial home till 5.8.1992. According to the appellant during the said period the respondent treated him with cruelty and finally left the matrimonial house on 5.8.1992.

3. The respondent denied the allegation of cruelty made against her and alleged contrary that the appellant and his mother had adopted a hostile attitude towards her and that both of them subjected her to harassment. The learned Judge of the Family Court upon consideration of the evidence came to the conclusion that the appellant had failed to prove the alleged cruelty. It was pointed out that there was variance between the pleadings and proof and as such the testimony of the appellant on the issue of cruelty could not be accepted.

4. We have heard Shri V.G.Parikh, the learned advocate for the appellant and Smt. Suman Jain, the learned advocate for the respondent. We have also gone through the oral evidence on record, particularly the evidence of the appellant. There is no dispute of the fact that the parties were married on 22.4.1992 and that they lived together till 5.8.1992. The period of their co-habitation was thus only 3 months and 13 days. It is during this period that according to the appellant, the respondent committed various acts of cruelty towards him. However, it is not possible to accept this contention for the simple reason that in para 3 of the petition, the appellant has averred : "The petitioner and the respondent lived happily as husband and wife at the said residence of the petitioner for about 3 months". It is, therefore, obvious that this averment in the petition runs counter to the allegation of cruelty made by the appellant.

5. Apart from this as pointed out by the trial court, the acts of cruelty attributed to the respondents are different from those stated by the appellant before the court. On going through the petition vis-a-vis the oral testimony of the appellant, we find much substance in the said observation. In the petition, the appellant has alleged that :-

i. The respondent gradually became arrogant and disrespectful towards his parents.

ii. That she never took any interest in the family affairs.

iii. That she frequently picked up quarrels with the petitioner.

iv. During her pregnancy, the respondent every offen stated that the motherhood was a torture and unnecessary social responsibility.

v. The respondent was always frequently visiting the house of her parents.

6. Curiously enough before the court, the appellant did not state anything about the said acts of cruelty averred in the petition. What he stated before the court was altogether a different story. He stated that after the marriage both of them had gone for honeymoon and during that period he has received a message that his mother was serious and admitted in the hospital. He, therefore, expressed his desire to return to Mumbai but the respondent did not like that and she started quarreling with him by saying that his mother had disturbed their honeymoon. Although both of them thereafter returned to Mumbai and called on the ailing mother, the respondent accused the appellant mother by saying that because of her, the honeymoon was disturbed. The appellant further stated that the respondent did not cook food for his mother as per the directions given by the doctor and she was not given medicines and food at proper time to his father. The appellant further stated that the respondent was always insisting on for taking her to see movies and to hotels. She was also insisting that the appellant should take a separate residence leaving his father and mother in the old chawl. The appellant also alleged that the respondent used to give him threats that she would commit suicide.

7. Relying upon the decisions in Kedar Lal v/s. Hari Lal, A.I.R.(39) 1952 Supreme Court 47; Ram Sarup Gupta (dead) by LRs. v/s. Bishun Narain Inter College and others, AIR 1987 Supreme Court 1242 and Ram Narain Arora v/s. Asha Rani and others (1999) 1 Supreme Court cases 141, Shri Parekh submitted that the petitioner's case cannot be discarded merely because the acts of cruelty stated by him before the court are different from those averred in the petition. The cases relied upon by Shri Parekh are not helpful to him, firstly, because they are under different Acts and the ratio laid down therein for construction of pleadings is in the peculiar facts and circumstances of those cases. The case on hand is a matrimonial case and the sole ground on which divorce is claimed is the ground of cruelty. Therefore, the evidence of cruelty has to be consistent with the pleadings.

8. The comparison of the averments made in the petition and the affirmation made before the court makes it clear that there was a total variance between the pleadings and proof. It is basic law of pleading that what is sought to be proved, must first be pleaded. This being the position we are in total agreement with the learned Judge of the Family Court that evidence adduced by the appellant on the issue of cruelty cannot be accepted. Consequently, we do not see any good reason to interfere with the order passed by the learned Judge of the Family Court.

9. With the result, the appeal is dismissed with cost.

Appeal dismissed.