2013(2) ALL MR 233
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.M. KANADE AND P.D. KODE, JJ.
Mrs. Humera Sarfaraz Patel Vs. Sarfaraz Sadiq Patel
Family Court Appeal No. 84 of 2012
16th August, 2012
Petitioner Counsel: Ms. Ranjana Todankar
Respondent Counsel: Mr. Sagar Batavia
Dissolution of Muslim Marriage Act (1939), S.2(viii)(a) - Evidence Act (1872), S.58 - Divorce and dissolution of marriage - Petition by wife - Allegations of cruelty against husband - Husband categorically admitted the allegations made against him - Facts which are admitted need not be proved - It is not necessary for wife to lead any further evidence to prove acts of cruelty - Allegations made against husband clearly constitute cruelty u/s.2(viii)(a) - Both have not been residing together since more than 7 years - They have also filed joint affidavit for dissolution of marriage - Wife entitled to divorce. (Paras 10, 11)
-V. M. KANADE, J. :- Heard the learned counsel appearing on behalf of the Appellant and the learned counsel for the Respondent. The appeal is taken up for final hearing by consent of parties at the stage of admission.
2. The Appellant is aggrieved by the judgment and order passed by the Family Court, Bandra, Mumbai dated 10th February, 2012. By the said judgment and order, the Learned Judge of the Family Court was pleased to dismiss the petition filed by the Appellant herein for divorce and dissolution of marriage under section 2(viii) (a) of the Dissolution of Muslim Marriages Act, 1939.
The Appellant and the Respondent got married at Ahmedabad on 17.10.1998 and after the marriage they were residing at Ahmedabad for some period and they last resided at Byculla. The Appellant filed a petition for divorce under section 2(viii) (a) of the Dissolution of Muslim Marriages Act, 1939 in the Family Court at Bandra, in which it was alleged that the husband had treated her with cruelty and made her life miserable by cruel conduct of not treating her as a wife. Various instances of cruelty were mentioned in paragraph 5 to 13. During the pendency of the petition, a joint affidavit was filed by the Petitioner and the Respondent dated 30.1.2012. The Respondent filed his written statement, in which he admitted all the allegations leveled against him except the allegations mentioned in paragraph Nos.14 and 15 of the petition.
4. The Family Court, however, dismissed the petition for divorce on the ground that there were no proper pleadings in the petition regarding the acts of cruelty by the husband. The Family Court also came to the conclusion that the admission given by the husband was not sufficient, particularly in view of the fact that it was the duty of the Court to ensure that admissions were not given by way of a collusion between the parties to obtain a decree of divorce.
5. The learned counsel appearing on behalf of the Appellant and the Respondent submitted that the Family Court had erred in holding that no ground of cruelty was mentioned in the petition for dissolution of marriage. It was submitted that the Family Court had erred in coming to the conclusion that it would be against public policy to accept the admission given by the husband.
6. The learned counsel appearing on behalf of the Respondent submitted that he has no objection if the decree of divorce is granted since the Respondent had admitted the allegations which were made against him.
7. So far as the provision under the Dissolution of Muslim Marriages Act, 1939 is concerned, it provides various grounds which are mentioned in Section 2 of the said Act. Ground (viii) (a) thereof reads as under:
"2(viii) (a): that the marriage has not been consummated;
(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical illtreatment".
The instances which are given in the ground (viii) above, in our view, are merely illustrative and are not exhaustive. The said instances are given for the purpose of enumerating various instances of cruelty.
8. In the present case the Appellant in her petition for divorce has specifically stated from paragraph 5 to paragraph 13 various instances of cruelty. In paragraph 5, she has stated that since beginning of the marriage, the attitude and behaviour of the Respondent was not cordial and amicable with the Petitioner, it was as if his marriage was performed against his wish and therefore, he used to avoid her for the reasons best known to him. In paragraph 6, it is mentioned that the Respondent and his family members did not accept her in their family as a wedded wife and she could not understand the indifferent behaviour of the family as to why she was treated so shabbily in the matrimonial house. In paragraph 7 she has stated that she was isolated and the Respondent too kept distance from her without showing any reason for his such an inhumane attitude towards her; she tolerated this behaviour on the part of the Respondent and his family members; she had ray of hope that one day the Respondent would change his attitude towards her and everything would be fine. She further stated that various efforts were made by the members of her family to settle the matter. However, the continuous mental torture went on increasing and it became intolerable for the Petitioner. She has further stated that they last resided at Bhyculla, Mumbai as husband and wife. In the other paragraphs, she has referred to various other acts of cruelty by the husband and his family members.
10. In our view, under the provisions of the Evidence Act, facts which are admitted need not be proved. In the present case, the Respondent-husband has categorically admitted the averments made by the Petitioner against him and therefore, the same are proved and hence, it is not necessary to the Petitioner to lead any further evidence to prove the acts of cruelty.
11. It is true that normally, the Court while examining the admission given by the parties to the petition for divorce or dissolution of marriage has to ensure that there is no collusion between the parties. The principle behind the said doctrine is that the parties should not take benefit of their own wrongs and obtain a collusive decree from the Court for dissolution of marriage. In the present case, in our view, the Family Court has completely erred in not accepting the admissions given by the Respondent-husband. In our view the Family Court has further erred in coming to the conclusion that there were no specific allegations made by the Petitioner-wife in her petition for divorce. We come to the conclusion that the allegations made in paragraph Nos.5 to 13 against the Respondent-husband, clearly constitute cruelty as referred to clause 2(viii)(a) of the said Act. It has come on record that the Petitioner and Respondent have not resided together since more than 7 years. They have also filed a joint affidavit for dissolution of marriage.
12. Taking an overall view of the matter, in our view, it would be appropriate if the impugned judgment and order passed by the Family Court, Bandra is quashed and set aside and the appeal is allowed. Both the Petitioner and the Respondent are present in the Court and the Respondent has no objection if the appeal is allowed. Hence, following order
I. The Family Court Appeal is allowed.
II. The impugned judgment and order dated 10th February, 2012 passed by the Family Court, Bandra is quashed and set aside and the marriage of the Appellant/ Petitioner and the Respondent is dissolved in terms of prayer clause 23(a) of the Petition i.e. Petition No. A-2485 of 2011, filed in the Family Court at Bandra.
Petition is accordingly disposed of.