Family Court Appeal No.34 of 2002,Family Court Appeal No.35 of 2002,Family Court Appeal No.37 of 2002

18th June, 2003

Petitioner Counsel: Ms. PRACHI A. NIMBALKAR
Respondent Counsel: Mr. V. S. KAPSE

Cases Cited:
Praveen Mehta Vs. Inderjit Mehta, AIR 2002 SCW 2886 [Para 15]
G.V.N. Kameswara Rao Vs. G. Jabilli, AIR 2002 SC 576 [Para 16]
V. R. Bhate Vs. Neela V. Bhate, 2003(3) ALL MR 777 (S.C.)=AIR 2003 SCW 2530 [Para 20]

JUDGMENT

S. J. VAZIFDAR, J.:- As the facts in each of the above Family Court Appeals is the same, it would be convenient to deal with them by common judgment. For convenience we shall refer to the wife as the Appellant and the husband as the Respondent.

The Appellant had filed a Petition being Petition No.B-37 of 1994 for a declaration that the premises being a flat is the matrimonial home of the parties, for an injunction restraining the Respondent from selling, transferring or creating any third party rights in respect of the same and for an injunction restraining the Respondent from dispossessing her from the said premises. The Appellant also sought an injunction restraining the Respondent from operating a bank account, removing anything from a bank locker and from transferring the shares,fixed deposits and other moveables in favour of any persons. Petition No.C-14 of 1995 was filed by the Appellant under Sections 18(i) (b) and (20) of the Hindu Adoption and Maintenance Act, 1956, seeking maintenance for herself and her son Prashantraj.

Petition No.A-165 of 1996 was filed by the Respondent under Section 13(i) (i-a) of the Hindu Marriage Act, 1955, seeking a decree of divorce.

The above Appeal Nos.34, 35 and 37 of 2002 are filed by the Appellant wife against the decision of the Family court in the above Petition Nos.B-37 of 1994,C-14 of 1995 and A-165 of 1996 respectively.

2. The Family Court dismissed the Appellant's Petitions and allowed the Respondent's Petition for divorce. The marriage between the parties was dissolved. The Respondent was directed to pay the Appellant maintenance at the rate of Rs.2000/- per month with effect from the date of the order. In addition thereto the Respondent was also directed to pay to the Appellant a sum of Rs.5,00,000/- to enable her to make provisions for a separate residence for herself. The Respondent was directed to deposit the said amount of Rs.5,00,000/-. The Appellant was granted liberty to receive the said amount after she removed herself from the Respondent's residence. An ad-interim injunction granted earlier restraining the Respondent from dispossessing her from the flat was directed to be continued for a period of one month from the date of the Respondent depositing Rs.5,00,000/- in Court. The aforesaid Family Court Appeals arise from a common judgment of the Family Court.

3. We do not find any reason to interfere with the impugned judgment except to a limited extent regarding the mode and quantum of the maintenance granted by the Family Court.

4. The Appellant and Respondent were married on 18th March, 1985 in Mumbai according to Hindu Vedic Rites. The Appellant had issued an advertisement in a local newspaper inviting a proposal for marriage of a single lady with a child ?

It led later on to the marriage between the Appellant and the Respondent.

5. The Appellant's case is that the Respondent accepted her son Prashantraj who was at the time of their marriage 2 1/2 years old. The Appellant stated that the Respondent agreed to treat Prashantraj as his own son. The Respondent has two daughters from his previous marriage. His first wife expired following an illness.

6. The following issues were raised and findings thereon given in the three Petitions:

	ISSUES IN PETITION NO.B-37/1994 :-	FINDINGS
1.	Whether the Petitioner is entitled to a declaration that the suit premises is her matrimonial home?	No.
2.	Whether the Petitioner is entitled to relief of injunction as prayed for ?	No.
	ISSUES IN PETITION NO.C-14/95 :-
1.	Whether the Petitioner is entitled to maintenance for herself ? If yes, at what rate ?	No.
2.	Whether the Respondent is legally bound to maintain the son ‘Prashantraj’?	No.
	ISSUES IN PETITION NO.A-165/96 :-
1.	Whether the petitioner proves that the Respondent has treated him with cruelty?	Yes.
2.	Whether the Petitioner proves that the Respondent has deserted him for a continuous period of two years, immediately preceeding the date of filing of the Petition ?	No.
3.	Whether the Petitioner is entitled to decree of divorce?	Yes.

7. As we are in agreement with the finding of the Family Court, we will only briefly state our reason for the same.

8. Before us there was hardly any attempt to challenge the finding that the flat at Worli, Mumabi in which the parties originally resided stood in the name of the Respondent's first wife and belonged to her. When it was sold, the Respondent fairly disbursed the daughters' share from the sale proceeds to them. After adding to his share he purchased the present flat in Borivali, a suburb of Mumbai.

9. The Respondent has alleged cruelty on the part of the Appellant on several grounds. It was submitted firstly that the Appellant suppressed the fact that she was not married earlier and that her son was born out of the wedlock. The advertisement no doubt does not state this fact. The Family Court came to the conclusion that even assuming that this fact was proved, it would not amount to cruelty. It is a moot question as to whether this conclusion is correct or not as a matter of principle. We however, refrain from deciding this point. We do not find that the Respondent has proved his case in this regard. We must hasten to add here that we do not disbelieve the Respondent. Suffice it to state that the evidence does not establish the Respondent's contention. In paragraph 21 of the Appellant's cross-examination the Respondent's lawyer put to her that the natural father of her son was one Rajindersingh Narula. There is no explanation as to how or when the Respondent learnt this fact. That the Respondent refused to answer the question is not relevant on this point. We do not find any evidence having been led by the Respondent amplifying this contention either. Though the advertisement did not cogently disclose the fact, we would presume that the Respondent would have enquired from the Appellant as to whom she was married to earlier and whether she was a divorcee or widow. We, however, do not find any evidence in this regard. It is not the Respondent's case that upon such enquiry, the Appellant responded in a particular manner with certain facts. It is true that the Appellant has also not stated any fact in this regard. But the onus on this question was on the Respondent.

Thus, for lack of evidence, we must hold that this ground has not been established. We reiterate that we do not suggest for a moment that the Respondent's case is false.

10. We however find that certain other grounds do establish cruelty on the part of the Appellant towards the Respondent. The Respondent has led evidence of his daughters and his brother. It is important to note that on the crucial aspects, there has been no cross-examination and certainly to effective cross-examination which would lead us to believe that the Respondent's case of cruelty is not established.

11. The evidence discloses that the Appellant not only did not treat the Respondent's daughters well but in fact drew a wedge between them and the Respondent. Indeed the least that can be said is that as a result of the Appellant's conduct, the Respondent's daughters avoided keeping the same close relationship with him. The Respondent in his evidence stated that the Appellant quarreled with his daughters alleging that they were not looking after her son. The Respondent's daughter Rupa deposed as under:-

"During my engagement period she used to object coming over of my husband at our house. She used to say that why he is coming often it would disturb the peace of our house. I tolerated the Respondent's behaviour just to have peace in the house. In the month of June, 89 I had gynac trouble and I was admitted in the hospital. After discharge I was brought in the house of my father for complete rest of one week. However, on the next day respondent started behaving arrogantly with me and told me to do household work, though I was not able to do any household work. Then I called my husband, requested him to take me to my matrimonial house because of the conduct of the Respondent. Thereafter I conceived. Though my father-in-law told me to go to my father's house, but I refused to go there because of the previous experience. Therefore I never went to stay at my father's house so that my father could live happy with the Respondent".

12. Another daughter of the Respondent Shilpa deposed as under :-

"On 28th November, 1991, I got married. After my marriage rarely I used to visit my parents house. Once in three months I have to come over and just I used to meet my father and used to go back. After my marriage when I became pregnant I was not keeping well. Hence, my father called me at his house, when I came over there though I was not keeping well during my pregnancy period, Respondent had not taken any care of me. On the contrary, she faught with me. Then I requested my father to take where I will be taken care of. Then my father took me to my uncle's place. The Respondent called my mother-in-law at her house and told her that I fought with my father as I was talking bad about my mother-in-law and because of that my father did not like this and there was a quarrel. Because of this my mother-in-law was very upset.

Then my father explained the truth to her. Even at the time of my delivery Respondent has not taken any care of me. Thereafter of the time of my daughter's first birthday, I visited the house of my father. However, Respondent never took to us and because of that I stopped coming over to my father's house."

13. The evidence is corroborated by the Respondent's brother. We are in agreement with the conclusion of the Family Court that the aforesaid evidence established that the Appellant used to quarrel with the Respondent's daughters and that she did not like them to visit the Respondent. Further as a result of the Appellant's behaviour, the Respondent's daughters stopped visiting him. This would certainly amount to cruelty. There are few things which would hurt parents more than being deprived to the company of their children.

14. The situation was aggravated by the fact that the Appellant also did not behave well with the Respondent's mother who ultimately left the Respondent's house to stay with his younger brother. She thereafter refused to stay in the Respondent's house till she expired in 1995. This evidence too is corroborated by the evidence of the Respondent's brother. There is nothing in the cross-examination which belies these allegations. We hold therefore, the Respondent's case in this regard is established.

15. The Supreme Court in Praveen Mehta Vs. Inderjit Mehta, reported in AIR 2002 SCW 2886 observed as under :-

"Cruelty for the purpose of S.13(1)(ia) is to be taken as a behaviour by one spouse towards the other which caused reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively."

16. In G.V.N. Kameswara Rao Vs. G. Jabilli, AIR 2002 SC 576, the Supreme Court held that "the mental cruelty faced by the Petitioner is to be assessed having regard to his status in his life, educational background and the environment in which he lived". The Appellant's conduct in creating an atmosphere of animosity in the house between herself and the Respondent's mother and his daughters, is certainly an act of cruelty. As we have observed earlier, there are few things which would distress a person more than being deprived the company and the society of his family, especially his mother and his daughters. The love and affection the Respondent had towards his daughters and his mother is not denied. The Appellant's evidence as to what she did for the daughters on certain occasions does not absolve her of her aforesaid conduct.

17. Ms. Nimbalkar fairly did not even seriously dispute the fact that there was an irretrievable break down in the marriage.

18. There is yet another ground of cruelty established by the Respondent. The Appellant has accused him of having an illicit relationship with one Ms. Veena Thakkar. The allegation has not been substantiated at all.

19. Indeed the Appellant herself examined Veena Thakkar as her witness. Veena Thakkar stated that she knew the Respondent as there was a proposal for marriage from her side. She however met the Respondent for the first time only ten years after she refused to marry him. In 1993 there was a robbery at her house which was reported in the newspapers. At that time, the Respondent contacted her on reading the news item. She states in her examination-in-chief that thereafter they did speak to each other on the telephone a few times. In her cross-examination she however admitted that "the Respondent never had an extra-marital relation with her".

It is not the Appellant's case that Veena Thakkar had turned hostile. Indeed the notes of evidence record that there was no re-examination. The evidence therefore clearly established that the allegation was false and totally unfounded.

20. It has been held that such baseless allegations constitute cruelty. In V. R. Bhate Vs. Neela V. Bhate AIR 2003 SCW 2530, the Supreme Court held as under :-

"7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(ia) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship is grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible."

21. We find that the Appellant has also made wild and baseless allegations of alcoholism and filed a false complaint against the Respondent. It is unnecessary to refer to these other instances of cruelty as we are satisfied that the above findings establish the Respondent's case. In the circumstances we have no hesitation in coming to the conclusion that the Family Court was justified in allowing the Respondent's petition for divorce, Family Court Appeal No.35 of 2002 is therefore dismissed.

22. Indeed we must point out that Ms. Nimbalkar fairly stated that the real concern of the Appellant was to ensure that she gets a reasonable amount to enable her to settle herself with her son in an independent flat. She submitted that looking to all the facts and circumstances the Appellant ought to be paid a lump-sum of Rs.18,00,000/- for maintenance and separate residence in full and final settlement.

23. That is the only question that now survives for determination. The Court by an interim order increased the maintenance to Rs.5000/- per month. The Respondent has also deposited Rs.5,00,000/- in Court. Ms. Nimbalkar invited our attention to the evidence. Ms. Nimbalkar submitted that the Respondent was running a Pharmaceutical Company Great Fortune Chemie Firma Ltd. with a staff of about five persons. The Respondent had invested about Rs.2,00,000/- in shares in several companies from which he was getting dividend of Rs.4000/- to Rs.5000/-. It was stated that he had invested a huge amount in H.D.F.C. without giving any particulars of the same. The amount was in fact paltry. The Respondent had also a credit card and a car which it appears was given by the Company. He was a member of a Club in a distant suburb of Bombay. The Respondent also travelled abroad but this it appears was on company work. The suggestion on the part of the Appellant in evidence was that the Respondent would spend about Rs.10,000/- per month for his personal expenses.

24. Ms. Nimbalkar stated that in the pharmaceutical company the Respondent's daughter was a Director. We find no cogent evidence whatsoever to come to a reasonably accurate assessment of the Respondent's income as alleged by the Appellant. The evidence on record does not suggest what Ms. Nimbalkar contended. Mr.Kapse does not deny that the Respondent continues to have close relations with his daughters. It is possible that the daughters would even assist the Respondent, if necessary, in putting an end to this unfortunate litigation. The Appellant has herself produced the income tax returns of the Respondent, which shows that his income is Rs.7500/- per month. She has not challenged the same. It is an admitted position that now the Respondent is not even the Managing Director of the said Company.

25. Thus, even if we were to take a charitable view, a very liberal assessment prompts us to a conclusion that a sum of Rs.3000/- per month would be a fair amount by way of maintenance. It would require an investment at 8% of Rs.4,50,000/- to yield this amount.

26. A one bedroom apartment, which is the Appellant's requirement in the suburbs would cost about Rs.5,00,000/-. Thus Rs.9,50,000/- would be the reasonable sum to be awarded to the Appellant as a lump-sum one time settlement if she was unable to maintain herself. We have come to the conclusion that the Appellant is not, at least entirely incapable of maintaining herself.

27. There is one important aspect which we must keep in mind while assessing the amount that should be payable to the Appellant by the Respondent. Before that however, we must also mention that the conduct of the Appellant does not really justify any sympathetic approach towards her. Moreover, we are distressed to note that the Appellant has suppressed vital facts from this Court solely with a view to enhance the maintenance. The Appellant is by no means unable to maintain herself. Her father owned a 15000 sq.ft. plot of land with a 5000 sq.ft. bungalow standing thereon at one of the most prestigious and valuable locations in Pune outside the well-known Jahangir Nursing Home. It is one of the most valuable, commercial and residential properties in Pune. Her father sold the property in 1996 prior to his death. Ms. Nimbalkar fairly admits that the Appellant is entitled to a 1/6th share in the father's estate. Every fact relating thereto has been suppressed by the Appellant. We even gave her an opportunity to produce the evidence in this regard before us. She refused to do so. We find this conduct unfortunate. We see no reason why we ought not to draw an adverse inference against the Appellant for the same. The Appellant has admitted that the father even left a 800 sq.ft. flat at Pune which she occasionally uses. She admits that she is on amicable terms with the entire family. She however states that she is not aware of the amount which she is likely to receive from her father by way of her share.

Her cross-examination in fact proves beyond doubt that she is able to maintain herself. She admits in cross-examination that she incurs an expense of Rs.6000/- to Rs.7000/- per month an amount far in excess of what she was then receiving towards maintenance. The following para of her cross-examination is important.

"I am maintaining my self and the son with the help of the monthly maintenance I am getting from the petr. I incur about Rs.6000/- to Rs.7000/- p.m. Since Feb., 1993 petr. stopped giving me any amount for the maintenance. Rs.3000/for household expenses i.e. to say milk, grocery, food, medical etc. In addition to this I am spending Rs.3000/- p.m. by way of education expenses for my son. And Misc. Expenses of about 1000/- including payment for my servant, newspaper bill etc. In the year 1994 I used to incur monthly expenditure of about Rs.5000/-. It is true that in addition to the amount given by the petr. by way of interim maintenance I am incurring additional expenses of Rs.40,000/- per year. It is true that since 1993 I have incurred an additional expenses of Rs.2,80,000/-. My brother Shri. G. D. Vora and my sisters Chaula Sanghvi, Pallavi Doshi, Tejal Shah, Minal Mehta are helping me financially. It is correct to say that financial assistance given to me by brother and sisters is in the nature of loan.

20. My brother has given me Rs.85,000/- to Rs.90,000/-. My sister Chaula Sanghvi has given Rs.1 lakh. Remaining 3 sisters have given me about R.1 lakh. I do not have any documentary evidence to show that I have been given loan by my sister that I will repay the loan during particular time. It is not true to say that I was not obtained any loan from my brother and sisters.

21. It is true that in the advertisement given by me in Bombay Samachar in the matrimonial column I have not mentioned my marital status. As the advertisement given by my parents, I am not in a position to say as to why my marital status is not mentioned in it.

At the time I married with the petr. I was spinster."

The Appellant has refused to give any details to show whether the amount has been lent to her. We disbelieve the Appellant's contention that she is unable to maintain herself.

28. Whether it is for the purpose of buying peace, or putting a quietous to this unfortunate litigation and relationship, whether it is with the assistance of his daughter, we appreciate the gesture of the Respondent husband in not only agreeing to pay the amount of Rs.9.5 lacs (which we reiterate is arrived by us on the assumption that the Appellant - wife is unable to maintain herself from her own resources) to the Appellant but also to pay her a sum of Rs.2.5 lacs towards the maintenance of the Appellant's son from her earlier relationship (who has attained majority), though not bound to do so. It is in view of the consent of the Respondent - husband that we pass the following order :-

i) The Respondent shall deposit in this Court a sum of Rs.12,00,000/- on or before 31st July, 2003.

ii) The Appellant shall be at liberty to withdraw the said sum of Rs.12,00,000/- on the Appellant furnishing an unconditional undertaking to this Court on affidavit to vacant the said flat at Borivali on or before 31-10-2003. In any event on the Respondent husband depositing the amount as aforesaid, the Appellant shall vacate the said flat with all her belongings on or before 31st October, 2003.

iii) In the event of the Respondent failing to deposit the said sum the status-quo on date shall continue. In that event the Appellant shall be liable to vacate the premises only upon the Respondent depositing the amount of Rs.12,00,000/- with interest thereon at 9% per annum from the date hereof till the deposit. The Appellant be liable to vacate the said flat within three months of such deposit. She shall be entitled to withdraw the amount so deposited on filing an affidavit containing an undertaking to vacate the said flat on a date three months after the Respondent deposits the amount.

iv) During the period up to October, 2003, the Respondent shall pay to the Appellant maintenance at the rate of Rs.3000/- per month. Thereafter and in the event of Respondent depositing the said amount of Rs.12,00,000/- in this Court, his liability to pay Rs.3000/- per month shall cease.

Order accordingly.