((-1-)) ms t IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.38 OF 2003 Rajiv Ramchandra Kamble Appellant versus Mrs.Nilima Rajiv Kamble Respondent Shri R.S.Apte i/by Shri Vaibhav Patankar for appellant. Shri Pankaj Bhatt for respondent. CORAM : SMT.RANJANA DESAI AND SMT.R.P.SONDURBALDOTA, JJ. DATE OF RESERVING THE JUDGEMENT : 05.06.2008 DATE OF PRONOUNCING THE JUDGEMENT : 25.06.2008 JUDGEMENT JUDGEMENT JUDGEMENT (PER : SMT.R.P.SONDURBALDOTA, J.) :- (PER : SMT.R.P.SONDURBALDOTA, J.) :- (PER : SMT.R.P.SONDURBALDOTA, J.) :- 1. This appeal is preferred against judgement and decree dated 1st February 2003 passed by Family Court, Pune in M.J.Petition No.A-2204 of 1998. The appellant is the original petitioner/husband and the respondent is the original respondent/wife. By the impugned judgement and decree the petition filed by the appellant seeking divorce on the ground of cruelty and desertion was dismissed. Both the parties are Buddhist by religion. They were married on 27th April 1994 and have a son by ((-2-)) name Niraj born on 22nd February 1995. 2. The case of the appellant, as pleaded in his petition, stated in brief, is as follows. Prior to the marriage the respondent was made aware that the appellant being the only son of his parents, she will have to stay with them. However, a few months after the marriage she started cribbing over the amenities in the house. She also started insisting that both should shift to the office quarters allotted to the appellant at Kandivali. During Diwali Festival of the year 1994 there was quarrel between the respondent and the appellant’s mother over the method of cooking. The respondent felt insulted and went to her parents house on the same day. Her father, however, sent her back on the next day. 3. On 3rd December 1994 the respondent, being pregnant, went to her father’s house for delivery. A few days later the appellant visited her and asked for Rs.1,000/- as he was facing financial crisis. The respondent gave him the amount but with a warning that in future she would not give any money out of her salary. Not just that but she also made a ((-3-)) propaganda amongst relatives that the appellant had been regularly asking for money from her. The appellant felt insulted over the issue. Since then he stopped visiting the respondent at her father’s house. 4. 22nd February 1996 was the first birth day of their son Niraj. Therefore, the appellant buried all the differences and visited the respondent’s house. He also requested the respondent to join him at the matrimonial home along with the son. But the respondent bluntly refused. Therefore, the appellant started regularly visiting the respondent’s house to see his son. During Diwali Festival, the appellant had taken son Niraj to his sister’s house. Because of the traffic jam he got delayed in returning. The respondent, made an issue out of it and humiliated the appellant and also his parents. Since that time, the appellant stopped visiting his son Niraj. 5. On 27th February 1995 the appellant filed M.J.Petition No.A-258 of 1997 for restitution of conjugal rights under section 9 of the Hindu Marriage Act. In that petition the parties filed consent terms for reconciliation on trial ((-4-)) basis under Rule 34 of the Maharashtra Family Court Rules. The respondent had put a condition that she would return to the matrimonial home only if the appellant renovated the same. Therefore, the appellant took loan of Rs.70,000/- and renovated the entire house. But the respondent returned to the matrimonial house only for a few days i.e. from 2nd October 1997 to 30th October 1997. She deserted the appellant after a fight with him and his parents. Thereafter on 17th April 1998 consent terms were filed for interim access to son Niraj. Subsequently, the petition for restitution came to be withdrawn by the appellant. 6. As per the consent terms, the appellant was to have access to the son on every first, third and fourth Sunday of every month. The respondent, however, stopped giving access since 21st June 1998. On 21st June 1998 the appellant visited the respondent’s house twice i.e. at 10.30 a.m. and 11.00 a.m. but the respondent bluntly refused to send Niraj. Then on 5th July 1998 on the advice of his lawyers, the appellant accompanied by his parents, once again went to the house of the respondent at ((-5-)) about 10.30 a.m. to bring Niraj to his house at Ghatkopar. However, for reasons best known to the respondent, she did not send Niraj though he was anxious to go with the appellant. Therefore, on 16th July 1998, the appellant made a complaint to Kanjur Marg Police Station which was registered as an N.C.Complaint. Thereafter, the appellant filed M.J.Petition No.2204 of 1998 seeking divorce on the ground of cruelty and desertion. 7. The respondent filed written statement refuting the allegations of cruelty and desertion made by the appellant. According to her, prior to the marriage, the appellant and his family had informed her and her parents that the appellant had been allotted quarters by his employer at Kandivali. Some months after the marriage she asked the appellant as to when was he planning to shift to the quarters at Kandivali. The respondent desired that all the family members including the parents shifted to the house at Kandivali. She states that the parents’ house at Ghatkopar is very small and lacks basic amenities. The appellant and the respondent were required to sleep in the kitchen. The respondent denies ((-6-)) that the appellant is the only son of his parents as claimed by him. She states that the appellant has an elder brother who is married and resides separately at Khar. 8. The respondent denies that there was any quarrel over the method of cooking during Diwali festival. She alleges that after the marriage the appellant and his mother used to take away her entire salary every month. The mother used to deposit the salary in her bank account in Abhyudaya Co-op. Bank Limited, Ghatkopar Branch. The respondent was allowed to keep only Rs.500/- with her for travelling expenses. The respondent contends that the visit during Diwali to her parents house in the year 1994 was on the day of Bhau-Bij as per the custom. She denies that her visit was due to any quarrel. After celebrating Bhau-Bij she had returned to the appellant’s house. As regards the incident of demand of money, she states that the appellant had asked for Rs.1,500/-. She gave him the amount clarifying that from the next month she would not be able to give her entire salary to the appellant as she needed money to meet her expenses. With this the appellant felt offended and stopped ((-7-)) visiting the respondent. Even after the son was born he did not bother until his first birthday. 9. The respondent denies that she ever refused to co-habit with the appellant or denied access to the child. She denies that she had put a condition of renovation of the house for cohabitation. In response to the consent terms filed in the petition for restitution of the conjugal rights, the respondent had gone to co-habit with the appellant, however, she was thrown out of the matrimonial home by the mother-in-law and sister-in-law Alka. She further denies that she had refused access to Niraj at any time. She alleges that in fact the appellant never cared for the well being of the son. She contends that the complaint made by the appellant to Kanjur Marg Police Station is a false complaint made with a view to create false evidence. 10. The evidence in the matter consists of deposition of the appellant himself, one Suresh Mahadev Jadhav, husband of the appellant’s sister, one Sadanand Kale, a neighbour, one Chandrashekhar Narayan Shirgaonkar, another ((-8-)) neighbour and the respondent. The Trial Court after analysing the pleadings and evidence led before it, came to the conclusion that the appellant has failed to establish that the respondent had deserted him without reasonable cause for a continuous period of two years or more immediately preceding the presentation of the petition and that he had failed to establish that he was treated with cruelty by the respondent. On these two findings the petition filed by the appellant was dismissed. 11. Before we proceeded to hear the appeal on merit, we had called both the parties to Court. With the assistance of the counsel we made an attempt to bring about settlement between the parties. The attempt failed as the respondent desires to continue the marriage whereas the appellant desires to break the marriage tie. 12. Mr.Apte, the learned counsel for the appellant submits that, there was sufficient evidence before the trial court to establish that the appellant was subjected to mental cruelty by the respondent and that she left the matrimonial home without reasonable cause and against the wish of the appellant. According ((-9-)) to him, the evidence before the trial court proves beyond doubt that the respondent is quarrelsome, adamant and hotty by nature. She lives by her own whims and fancies and has no respect or concern for elders. She also has no concern for the appellant. For this, he refers to the incident of quarrel during diwali function, the function of ‘Oti Bharani’ and the refusal on the part of the respondent to give Rs.1,000/- to the appellant to tide over financial crisis. Mr.Apte further submits that the respondent tried to keep the appellant away from the son by refusing access from time to time. On the other hand, the appellant has done everything including taking a loan of Rs.70,000/- to renovate the house in order to pacify the respondent. Mr.Apte next refers to the observations of the learned Trial Judge that the appellant failed to examine his mother and submits that the same is a misplaced observation, since at the relevant time, the mother of the appellant was no more. She had died in the year 1999. Mr.Apte, lastly submits that the parties have been staying away from each other for the last ten years and that the marriage has irretrievably broken down. Therefore, no purpose will be served by ((-10-)) bringing them together. 13. As against the above contentions on behalf of the appellant, Mr.Bhatt the learned counsel for the respondent, submits that, none of the allegations of mental cruelty stand established by the appellant. He submits that instead it is the respondent who has been subjected to cruelty by the appellant and his family members. According to the respondent, after the marriage her mother-in-law used to take away the entire salary of Rs.3,000/- and leave only Rs.500/- for her as expenses of conveyance. Therefore when she gave the appellant money, she had made it clear, that from the next month onwards she won’t be giving any money as she herself needed the same as expenses for the delivery. Mr.Bhatt, submits that once the appellant filed a petition for restitution of conjugal rights, the cruelty alleged in any form, whether serious or minor stands condoned and onus heavily lies on the husband to establish that he has not condoned cruelty. As regards the allegation of desertion, he submits that the respondent has never deserted the appellant. She had gone to her parents house for the purpose of delivery ((-11-)) of the child. Thereafter, as admitted in the cross-examination of the appellant, as per the custom in the community it was for the appellant to go to her parents house and bring the respondent back to the matrimonial home. The appellant failed to do so. He also submits that the ground of desertion is not available to the appellant since the petition was filed before expiry of statutory period of "continuous two years preceding the petition". With these submissions, Mr.Bhatt justifies the impugned judgment and decree. 14. The appellant seeks divorce from the respondent on the ground of desertion and cruelty. The undisputed facts of the case clearly indicate that the ground of desertion was simply not available to him. Under Section 13 of Hindu Marriage Act (hereinafter referred to as "the Act") for the ground of desertion to be available for decree of divorce it is necessary for the petitioner to establish that the respondent has deserted the petitioner for a continuous period not less than two years immediately preceding presentation of the petition. Further, meaning of the expression "desertion" is given in the explanation to ((-12-)) Section 13 of the Act. It means desertion of the petitioner by the other party to the marriage without reasonable cause and without consent or against the wish of such party. It includes wilful neglect of the petitioner by the other party to the marriage. It is undisputed that after the appellant filed petition for restitution of conjugal rights the respondent had come to the matrimonial home to co-habit with him. She resided there for about thirty days i.e. between 2nd October 1997 to 30th October 1997 before returning to her parents house. The appellant filed divorce petition some time in the year 1998 i.e. much before expiry of period of two years from the date on which the respondent left the matrimonial home. Though prior to 2nd October 1997 the respondent had been residing away from the appellant, he cannot get advantage of the fact, since the period of desertion is required to be continuous and not interrupted one. Thus, the minimum statutory period of two years of desertion was not over and hence the ground of desertion was not available to the appellant for seeking decree of divorce. 15. The appellant also needs to establish that ((-13-)) desertion was without reasonable cause. It is the case of the respondent that she was driven out of the matrimonial house by her mother-in- law and sister-in-law. In other words, she did not leave of her own volition. As against this, the appellant contends that the respondent quarrelled with the family members and left the house. The learned Trial Judge after appreciating the evidence of both the parties on this issue has concluded that the appellant was driven out of the house by the appellant and his family members. The learned Trial Judge has commented that since it was word against word, the appellant could have examined one of his family members to place correct facts on record. He has failed to do so without any explanation. This inaction on the part of the appellant strengthens the version of the respondent. He has further taken note of the evidence in cross examination of the appellant wherein he states that he is not willing to co-habit with respondent though she is willing for co-habitation. 16. As regards the second ground of divorce of mental cruelty, two aspects will fall for our consideration. The first aspect is of ((-14-)) establishment of facts alleged by the appellant. The second aspect is whether the facts established can be said to constitute cruelty. 17. It is the case and evidence of the appellant that soon after marriage, during Diwali festival, the respondent quarrelled with his mother over method of cooking. She felt insulted and went to her parents house on the same day. This incident is denied by the respondent. She claims that her visit to her parents house was only to celebrate Bhau-Beej and nothing else. None of the witnesses examined by the appellant refer to this incident. Therefore, it is the word of the appellant against the word of the respondent. It will be seen hereafter that the bare word of the appellant cannot be accepted without any corroboration since at places he has deposed completely contrary to the pleadings and has also made a false claim in the petition. It has been categorically claimed in the petition that the appellant is the only son of his parents. This is denied by the respondent in her written statement stating that the appellant has an elder brother who is married ((-15-)) and residing separately. In his cross examination the appellant has admitted that he has a brother by name Vijay who resides separately. The appellant in his deposition, as an instance of cruelty, stated that on 3rd December 1994 there was a function in the house relating to pregnancy of the respondent. She was then pregnant for six months. During the said function the respondent behaved badly with the appellant’s relatives and at that time he had an impression that she was not willing for co-habitation. The averments in the petition as regards the function are completely contrary. In the petition, the appellant avers as follows:- "... ... Petitioner states that in the 7th month of the respondents pregnancy a ceremony known as ‘OTI-BHARNI’ was performed in a hale and hearty atmosphere in a hale and hearty atmosphere in a hale and hearty atmosphere and and and all the family members of the all the family members of the all the family members of the petitioner’s, petitioner’s, petitioner’s, including petitioner’s including petitioner’s including petitioner’s mother mother mother were very happy about the same were very happy about the same were very happy about the same. Soon thereafter the respondent went to her parents house for the purpose of delivery." (Emphasis supplied) Since the bare word of the appellant cannot be accepted, it must be held, as done by the learned Trial Judge, that the incident alleged is not established. ((-16-)) 18. Two witnesses of the appellant i.e. Sadanand and Chandrashekhar have deposed about the incident of quarrel during Diwali in the year 1997. This incident is neither pleaded in the petition nor mentioned by the appellant in the evidence. Therefore, it, actually deserves to be ignored. However, since two witnesses have referred to it in their evidence and since the learned Trial Judge has evaluated it in his judgement, we consider it only appropriate that we deal with the same. Sadanand is a neighbour, his residence being at a distance of two rooms from that of the appellant. He deposed that during Diwali festival of the year 1997, when he was inside his residence, he heard quarrels from the house of the appellant. Therefore, he went to the appellant’s residence and watched the quarrel from outside. He saw that the respondent was giving filthy abuses to her mother-in-law. He made an attempt to convince the respondent not to abuse her mother-in-law. However, she did not listen. He further stated that he saw that the respondent spat on her mother-in-law. 19. The evidence of the second witness ((-17-)) Chandrashekhar is that on first day of Diwali of 1997 he heard quarrel from the residence of the appellant. He was standing outside his residence at the relevant time. He then went to the steps of the residence of the appellant. He heard the respondent giving abuses in filthy language to her mother-in-law. Therefore, he called the appellant outside. The appellant told him that there was a quarrel going on. Then Chandrashekhar returned to his residence. In his cross-examination Chandrashekhar admitted that he resides in a building different from that of the residence of the appellant. Both the buildings have different entrances. 20. Sadanand and Chandrashekhar have deposed to the same incident and claimed to have walked to the residence of the appellant. But neither of them refers to the presence of the other. The deposition of Chandrashekhar shows that he has not witnessed the quarrel himself. Therefore, his evidence is not of much assistance. Sadanand stated in his deposition that he was standing on the steps of the house of the appellant. He has stated some details of the incident. But it is not known whether ((-18-)) the inside of the house of the appellant is visible to somebody standing on the steps. Sadanand stated that the respondent spat at her mother-in-law. This is a serious allegation. As per the evidence of Sadanand and Chandrashekher, the appellant was present at the time of incident. However, he has neither pleaded it in the petition nor stated in his evidence. In these circumstances, as is rightly held by the learned Trial Judge, it is difficult to believe that such an incident had taken place. 21. The appellant has led particular stress on two more alleged incidents. It appears that after the respondent went to her parents house in December 1994 for the purpose of delivery, the appellant had visited her and asked for Rs.1,000/-. Mr.Apte, submits that, there was nothing wrong on the part of the appellant to seek help from his wife to tide over financial difficulty. But though the respondent gave him the money, she warned him that in future she would not give any money to him. According to the respondent, the incident has been distorted by the appellant. It is her pleading and the evidence that the appellant had asked for ((-19-)) Rs.1500/- (not for Rs.1,000/-) which she gave him. But she told him that during her pregnancy she would require more money and hence she would not be able to hand over the entire salary to him, as she was being doing since marriage. 22. It is the case of the appellant in his petition, that he was infuriated over the issue and had therefore gone to the respondents’ house to seek a clarification from the respondent and her parents. At that time, he and his sister were humiliated. With this, the appellant was very much disheartened and did not visit the respondent. In his deposition, the appellant does not make reference to the visit to the parents house accompanied by his sister, Jayashree. He has also not examined his sister. Further in the evidence, he alleges that since that incident, he was not allowed entry by the respondent in her house. It is thus seen that his evidence is not consistent with the pleadings. As per the pleadings he felt disheartened and stopped visiting the respondent, whereas, as per his evidence the respondent refused him entry in the house. ((-20-)) 23. It is the case of the appellant, that after filing of petition for restoration of conjugal rights, the respondent had put a condition, that she would come to the house only if he renovates the same. Therefore, the appellant took a loan of Rs.70,000/- and renovated the entire house. In the petition, however, the appellant does not give particulars of the loan and the work of renovation carried out by him. In his evidence, the appellant makes no reference at all to these incidents. However, his witness Chandrashekhar states in his evidence that at the instance of the appellant, he had carried out renovation work to his house, which cost Rs.75,000/-. It is thus seen, that there is hardly any evidence brought before the court to establish the incident of insistence on the part of the respondent in having the house renovated and the appellant complying with the same. 24. The next act of cruelty alleged on the part of the respondent is denial of access to son Niraj. Niraj was born on 22nd February 1995. At that time the respondent was at her ((-21-)) parents house having gone there for the purpose of delivery. Until one year thereafter, the respondent did not bother for the child. He went to see the child for the first time on its first birthday. Thereafter he had been meeting the child intermittently. In the petition for restitution of conjugal rights filed by him, the parties had filed consent terms for interim access. As per the consent terms he had been meeting the son. In his petition, the appellant alleges that on 21.6.1998 he had visited the respondents’ house twice i.e. at 10.30 a.m. and 11 a.m., but the respondent refused to send the son, Niraj. Thereafter, on the advise of his lawyers, he alongwith his parents went to the house of the respondent on 5.7.1998 at about 10.30 a.m. for meeting the son. However, the respondent did not send Niraj, though he was anxious to go with the appellant. Then the appellant reported the matter