Family Court Appeal No.74 of 2004

17th May, 2009

Petitioner Counsel: Ms. SEEMA SAIRNAIK
Respondent Counsel: Mr. TEJAS VORA,Mr. G. K. VORA

Cases Cited:
Shobha Rani Vs. Madhukar Reddi, AIR 1988 SC 121 [Para 6]
V. Bhagat Vs. Mrs. D. Bhagat, AIR 1994 SC 710 [Para 6]
Dr. N. G. Dastane Vs. Mrs. S. Dastane, (1975)2 SCC 326 [Para 6,8]

JUDGMENT

B. H. MARLAPALLE, J.:- This appeal filed under Section 19 of the Family Courts Act, 1984 arises from the Judgment and Order dated 12/4/2004 rendered by the Family Court at Pune thereby dismissing Petition No.A-501 of 2001 filed by the appellant-husband for seeking divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (for short the Act) and that is on the ground of cruelty. Praying for maintenance under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (for short the Maintenance Act).

2. The parties were married on 19/12/1997 at Pune as per the Hindu religion rites and customs. They stayed together and cohabited till the end of April, 2001. As per the husband, the wife was of quarrel-some nature and left the matrimonial home on or about 24/4/2001 and on 13/7/2001 she came back with some of her relations. Between 9.30 p.m. to 11 p.m. on the same day, there was discussion between the two families and in the midnight, wife packed her bags of all her belongings and left the matrimonial home and before doing so and in fact before the compromise meeting commenced, she had gone to the Police Station and filed a complaint (Exh.52) for an offence punishable under Section 498-A of IPC against the appellant and his family members, including his sister and sister's husband. The police had called the appellant to the police station and he gave his explanation (Exh.53). On 19/7/2001, he approached the Family Court and filed Petition No.A-501 of 2001 for seeking divorce on the ground of cruelty.

3. The wife filed her Written Statement at Exh.69 and opposed the petition filed by the husband. She denied all the allegations made against her about her behaviour and that she had on her own left the matrimonial home. She alleged that within a short period after the marriage, she was being ill-treated, physically assaulted and harassed by the husband and his family members and that the appellant was trying to take benefit of his own wrongs by seeking a divorce on the ground of cruelty. She also alleged that on 13/7/2001 when she tried to enter her matrimonial home, she was prevented from doing so by the appellant's elder brother - Vasu who had advised her to come back around around 9 p.m. for discussion. She further alleged that the meeting ended inconclusive and next meeting date was to be fixed and communicated by the appellant and she did not hear anything further. On 19/7/2001 she had issued a legal notice through an Advocate and had also filed an application under Section 125 of Cr.P.C. claiming maintenance.

4. There is no dispute that in Petition No.A-501 of 2001 the wife had filed an application under Section 24 of the Act and prayed for maintenance pendente lite, which was granted at Rs.3,000/- per month by order dated 7/3/2002.

5. The appellant examined himself as PW-1, his elder brother Vasu - PW-2 and his sister's husband - Yogesh Arnalkar, PW-3, in support of his case of cruelty against the respondent. Whereas, the respondent examined herself and no other witness was examined by her. The grounds of cruelty stated in brief and alleged by the appellant in his petition before the Family Court were as under :-

(a) The respondent did not declare her correct age when the marriage was fixed and she had shown herself to be younger by one year (the wife claimed to be born in 1970 but as per the School Leaving Certificate her year of birth was 1969).

(b) At the time of marriage proposal, she did not submit the original horoscope and instead had handed over a xerox copy of the horoscope which was fake or fabricated and this was done deliberately so that the horoscope of both the parties would match.

(c) The wife was keeping dolls in the cupboard for practicing black magic and this was seen by the appellant for the first time sometime in the year 2000.

(d) The wife was of quarrelsome nature and did not mix with the family members and she used to misbehave with the mother-in-law as well as the grand-mother-in-law and at times she had thrown out her mother-in-law from her room.

(e) The wife had attributed ill motives against the appellant's elder brother and enquired with appellant's cousin whether the appellant was carrying on with any other woman.

(f) She left the matrimonial home on 24/4/2001 and when returned with her relations on 13/7/2001, she packed her bags and left the matrimonial home and before doing so she filed a false criminal complaint against the appellant and his family members for the offence punishable under Section 498-A of IPC.

As against this, the wife stated before the Family Court that both the families were known to each other as they were distantly related and nothing was suppressed from the appellant regarding her age. Her brother had contributed about Rs.50,000/- for the reception expenses and after they returned from honeymoon from Goa the matrimonial life was normal for sometime but thereafter she realised that the appellant used to get drunk and returned home late. At times he used to beat her mercilessly. As per her, he was alcoholic and addicted to gutka. After few years, he stopped having physical relations with her and in fact asked her to sleep in a separate room in the matrimonial home. She was driven out of the house on 24/4/2001 and when she started calling the husband on phone he threatened her not to return to the matrimonial home and, therefore, as a last measure, she visited Pune with some relations but in vain. She was not allowed to enter the house and had to return on the same night. She admitted to have filed a complaint with the Police Station at Pune on 13/7/2001 against the appellant and his family members.

6. In the case of Shobha Rani Vs. Madhukar Reddi [AIR 1988 SC 121], the Supreme Court, while interpreting the meaning of "cruelty" as envisaged under Section 13(1)(ia) of the Act, stated thus,

"....The cruelty may be mental or physical, intentional or un-intentional. If it is physical the Court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse...."

In the subsequent decision in the case of V. Bhagat Vs. Mrs. D. Bhagat [AIR 1994 SC 710], the Supreme Court, on the same issue of cruelty, stated as under :-

"17. Mental cruelty in S.13(1)(ia) can broadly be 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. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. 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 in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."

A three Judge Bench in the case of Dr. N. G. Dastane Vs. Mrs. S. Dastane [(1975)2 SCC 326] observed that in many marriages each party can, if it so wills, discover many cause for complaint but such grievances arise mostly from temperamental disharmony. Such disharmony or incompatibility is not cruelty and will not furnish a cause for the dissolution of marriage.

7. On the touchstone of this settled position in law, we will have to examine whether the husband made out a case of mental cruelty against the respondent so as to allow his petition. The learned Judge of the Family Court framed the following issues and answered accordingly :-

	Issues	Findings
1.	Whether petitioner husband proves that respondent treated him with cruelty after solemnization of marriage ?	No
2.	Is there any legal bar under section 23 of Hindu Marriage Act for granting him decree of divorce ?	Yes
3.	Whether petitioner is entitled for decree of divorce as prayed ?	No
4.	What order and decree ?	As per Order.

The Family Court held that the husband could not establish the ground of cruelty after marriage between the parties and the petition of the husband would be hit by Section 23 of the Act. Consequently, the husband was not entitled for a decree of divorce.

8. The appellant was subjected to cross-examination on his affidavit by way of examination-in-chief before the Family Court. We are satisfied that having regard to the oral depositions, the ground of declaration of false age or submission of fabricated horoscope copy or the black dolls magic have been rightly rejected by the Family Court. The husband, in his cross-examination, before the Family Court, admitted as under :-

"...I decided to take divorce from respondent in May, 2001 due to quarrels in the house and arguments. Before that I did not feel to take divorce from respondent. Till April, 2001, there was cohabitation and physical relation with me and respondent and they were smooth...."

The above admissions by the husband are self speaking and as per him the relationship between husband and wife was smooth till April, 2001. He further admitted that after the respondent filed police complaint on 13/7/2001, he filed a divorce petition on 19/7/2001 and the said police complaint was the reason for filing petition for divorce. In the case of Dastane Vs. Dastane (Supra) their Lordships stated,

"... But if during cohabitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. There is then no scope for imagining that the conception of the child could be the result of a single act of sexual intercourse and that such an act could be a stark animal act unaccompanied by the nobler graces of marital life. One might then as well imagine that the sexual act was undertaken just in order to kill boredom or even in a spirit of revenge. Such speculation is impermissible. Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment. Therefore, evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty. Intercourse, of course, is not a necessary ingredient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home. But intercourse in circumstances as obtain here would raise a strong inference of condonation with its dual requirement, forgiveness and restoration. That inference stands uncontradicted, the appellant not having explained the circumstances in which he came to lead and live a normal sexual life with the respondent, even after a series of acts of cruelty on her part."

9. By following the said law, we will have to presume that till April, 2001 the relationship between the parties was normal and it is only when the respondent filed the police complaint on 13/7/2001, the husband decided to seek divorce on the ground of cruelty. Even filing a false police complaint could be a ground of cruelty. But, in the instant case, we have seen the record and after the respondent filed a complaint, the appellant approached the police station and his statement was recorded. No further steps were taken by the police on the said complaint. Therefore, the findings of the Family Court on Issue No.1 that the husband failed to make any ground of cruelty does not call for any interference.

10. Section 23 of the Act states that in any proceedings, whether defended or not, if the court is satisfied that where the ground of the petition is the ground specified in Section 13(1)(i), the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, the Court shall decree such relief accordingly. In the instant case, the admissions by the husband themselves indicate that he had condoned the alleged acts of cruelty till April, 2001 and but for the police complaint he would not have approached the Family Court with a petition for divorce on the ground of cruelty.

On the allegations that the respondent was of quarrelsome nature and was in the habit of misbehaving with the elders of the family, the appellant relied upon his own depositions as well as of his brother - Vasu, PW 2. Vasu admitted in his cross-examination that the family owned two flats in the same building, one on the lower floor and other on the upper floor and he along with his family used to sleep in the upper floor in the night and during the day time he was fully busy in the shop. He, therefore, did not have the knowledge as to what happens in the house between the appellant and his wife in the lower level flat in his absence. It is true that the respondent-wife in her cross-examination admitted to have inquired about the appellant having physical relation with any other woman and this inquiry was made with Sagar. She also admitted that she was suspicious about the bad feeling of appellant's brother towards her. The word "bad feeling for me" by itself does not call for any one to believe that the wife was accusing her husband's brother of intentions to develop an illicit relationship. Bad feeling may be disrespect, may be hate or even a strong message of being unwelcome as a family member. So far as inquiry with Sagar is concerned, it has been admitted by the appellant that the respondent used to move out with other members of the family, including his elder brother as well as cousin and in fact, he encouraged the same so that she should not be lonely at home. If the wife's contention was that the husband had abandoned physical relationship, it was natural for her to inquire about, whether he had any other woman in life and such an inquiry she did not make with an alien to the family. We are, therefore, not inclined to accept that the inquiry, admittedly, made by the respondent with Sagar would amount to an act of mental cruelty so as to be a single sufficient act to entertain and allow the petition for divorce.

11. Ms. Sarnaik the learned counsel for the appellant submitted that the police complaint filed on 13/7/2001 was the last cause concluding a chain of acts of cruelty over a period of three years of matrimonial life. The wife stated in her examination-in-chief that on 31/1/2001 the husband came home late in the night and beat her up mercilessly under the influence of liquor. In December, 2002 she was slapped on her face by the husband's mother, on 29/3/2001 the husband blankly told me that she should sleep in the hall and not in his bed room and that on 19/4/2001 he came late home in the night in a heavily drunken condition and tried to strangulate her. She had to call for help and thus could manage to save her life. These statements could not be refuted and they remained intact, despite the wife was subjected to a searching cross-examination.

Ms. Sarnaik also submitted that the marriage between the parties has irretrievably broken down and that by itself is a sufficient ground to dissolve the marriage and grant a decree of divorce to the appellant, though there has been no co-habitation between the parties from May, 2001 onwards. The submissions made by Ms. Sarnaik do not appeal us for two reasons, namely, (a) the wife does not accept that the marriage is irretrievably broken down because she is, at any time, willing to join the husband's company for co-habitation and (b) there is no provision under the Hindu Marriage Act, 1955 to grant a divorce on the ground that the marriage is irretrievably broken down and even other wise, as an Appellate Court, we cannot go beyond the scheme of the Act. We are not impressed by these submissions and we are satisfied that the reasoning set out by the Family Court in answering Issue Nos.1 and 2 cannot be termed as perverse or unsupported by the evidence on record. Hence, this appeal must fail.

12. In the premises, the appeal stands dismissed with costs.

Appeal dismissed.