* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 60 OF 2007 IN PETITION NO. A-1150 OF 2004 Mrs. Devyani Deepak Bhogale Age : 33, residing at C/O. G.T. Pansare, Pansare Niwas, Hanuman Nagar, P.N. Road, Bhandup (W) Mumbai-400 078 ....Appellant/Orig.Petitioner V/S. Mr. Deepak Sakharam Bhogale Age-37, residing at Sai Prasad Co-operative Housing Society, Row House No.11, Sector-3, Airoli, Navi-Mumbai .........Respondent/Orig.Resp ---------------------------------------------------------------------------------------------------------------------- Mr. T.D. Deshmukh, adv.for the appellant. Mr. D.W. Bhosale, adv.for the respondent. ---------------------------------------------------------------------------------------------------------------------- Coram :- A.P. Deshpande, & Smt. R.P. SondurBaldota, JJ. Judgment Reserved on : 19th April, 2010 Judgment Pronounced on : 26th April, 2010. * 2 * JUDGMENT : (Per :- Smt. R.P. SondurBaldota, J) 1. The appellant wife has filed this appeal to challenge the judgment and order dated 21st December, 2006 of the Family Court, Mumbai dismissing her petition for divorce filed on the ground of cruelty under Section 13 (1) (ia) of The Hindu Marriage Act. 2. The undisputed facts of the case are that, the appellant is a Doctor (BHMS) by profession, running her dispensary from Bhandup. The respondent is an Engineer who has two factories at Ghatkopar and Rabale. He also owns one flat and a row house at Airoli. The marriage of the appellant and respondent took place on 24th June, 2003. In less than a month thereafter, i.e. on 18th July 2003, father of the respondent expired due to heart attack. On 1st August, 2003 the appellant went to her parents house and was there for one month until 1st September, 2003. She returned to the matrimonial house on 1st September, 2003 only to return therefrom forever on 3rd September, 2003. Thereafter, on 22nd September, 2003 the appellant lodged a complaint with police under Section 498A IPC against the respondent, his mother and two sisters, one of whom is undisputedly physically handicapped. On the basis of the complaint, Criminal Case bearing No. 890 of 2003 was registered and the respondent and his family members faced trial. In the criminal proceedings the appellant examined herself, her brother * 3 * Advocate Vikram, her father Gangadhar, her cousin Vijay and one Madhukar Kadam. The criminal case was dismissed on 29th June 2004, acquitting the respondent and his family members. 3. On 29th June, 2004, the appellant filed a petition seeking divorce on the ground of cruelty. It is the case of the appellant that during her total stay of 37 days with them, the respondent and his family members subjected her to cruelty. It is to be noted that father of the respondent had died during the same period. The instances of cruelty alleged are : (i) Non-disclosure of the relations particularly brother and sisters of the respondent at the time of marriage talk. (ii) Demand of dowry particularly gold (iii) Demand of wardrobe after the marriage. (iv) Insistence for wearing a saree instead of punjabi suit. (v) Assault by the sister-in-law by name Deepa. (vi) Illicit relations of the respondent with number of ladies. (vii) On return to matrimonial home, the petitioner was made to sleep alone in a room and not allowed to enter the kitchen. (viii) On 3rd September, 2003 sister-in-law Jyoti threatened and assaulted the appellant and her brother Vikram. The appellant examined herself and her brother Advocate Vikram, her father-Gangadhar and cousin-Vijay in support of her case. On appreciation of * 4 * the evidence, the Family Court found that the appellant has failed to prove that she had been subjected to cruelty by the respondent and dismissed the petition. 4. We have heard extensive arguments of both the sides, perused the pleadings, notes of evidence and the impugned judgment. 5. Out of the eight instances of cruelty alleged against the respondent, those at items No.1 and 4 will have to be rejected outright as it is inconceivable that these instances constitute mental cruelty. 6. The allegations of demand of dowry, wardrobe and assault at items no.2, 3 and 5 have also been subject matter of criminal proceedings under Section 498A IPC initiated by the appellant. The witnesses examined by the appellant in the criminal proceedings, as well as, the present proceedings are same. Their evidence has been scrutinised and rejected in both the proceedings. The appellant’s own evidence shows that the gift of gold ornaments to the appellant by her father at the time of her marriage weighing 17 tolas was voluntary and not in satisfaction of any demands from the respondent. Admittedly, the marriage expenses were shared by both the sides. The Family Court has observed that the respondent has two factories, a row-house, bungalow and flats which would mean that the financial condition of the respondent was sound at the time of marriage. Besides, undisputedly the family members of the appellant i.e. her father and * 5 * brothers had visited the factory of the respondent and made enquiries before finalising upon the proposal of the respondent. Therefore, they must have been in the know of the financial condition of the respondent. Considering the financial condition of the respondent described in the proceedings, the Family Court found it impossible to even imagine that such a person would demand dowry and that too of gold weighing 15 tolas. The learned Family Court Judge has observed that the advocate brother of the appellant appeared to be the brain behind the petition, as well as, the prosecution and noted that he has given certain admissions which negates the case of demand of dowry. Our perusal of records and proceedings and notes of evidence does not detract us from the observations of the Family Court. The next is the allegation of assault at the hands of Deepa, sister of the respondent. This allegation has been disbelieved by the Family Court for more than reason. The incident is alleged to have taken place on the second day after death of father of the respondent when the family including Deepa were grief stricken. Further Deepa is a physically handicapped person who is unable to even stand. 7. The allegations made at item no.6 is a serious allegation. It is alleged that the respondent has illicit relations with number of ladies. It is neither the case nor the evidence of the appellant that the respondent had any extra-marital relations with any women. It * 6 * appears that during the period 1st August, 2003 to 1st September, 2003 when the appellant had come to stay with her parents, she started making enquiries at different places and in the process met one Alaknanada Kadam on 11th August, 2003 who appraised the appellant that she had an “affair” with the respondent. The evidence of the appellant is based solely on the information given by Alaknanda Kadam. Beyond the word of Alaknanda Kadam (who has not been examined as a witness), there is no evidence before the court to substantiate the allegation that respondent had any “affair” either with Alaknanda Kadam or the other two woman. Therefore, in our opinion, the trial court has rightly disbelieved this allegation. 8. The next allegation of cruelty is that on 1st September, 2003 when the appellant returned to the matrimonial house, she was not allowed to enter in the kitchen, but she was asked to sleep in the “Devghar”. This by itself can hardly constitute cruelty. 9. The last instance of cruelty is the incident alleged to have taken place on 3rd September, 2003. According to the appellant, the respondent and his sister quarreled with her and did not provide food to her till 11.45 p.m. Therefore she rang up her brother at 2 a.m. Then the respondent allegedly removed her cellphone. When the appellant’s brother could not contact her on the cellphone, he rushed to the house of the respondent and then exchange of words took place in which the * 7 * respondent allegedly asked the appellant’s brother to leave the house. The appellant also left the house alongwith her brother, carrying all of her belongings. The Family Court noted that there is no complaint filed with police regarding the incident alleged, either by the appellant or by her brother. It has further disbelieved the allegation saying that the whole episode was apparently preplanned between the appellant and her house. Otherwise, she wouldn’t have been able to carry all her belongings. 4. Considering the short duration of co-habitation of the parties and the fact that during the very period, the family was under grief on account of loss of respondent’s father, there was hardly any scope for the respondent and his family, subjecting the appellant to any mental cruelty. Besides, none of the allegations are of such nature as to cause a reasonable apprehension that it would be harmful or injurious to live with the respondent. Hence, they cannot constitute “cruelty” as contemplated by Section 13(1)(ia) of The Hindu Marriage Act. In our considered opinion, the Family Court has based its findings on cogent and convincing reasons and no interference with the same is called for in the present appeal. Hence, the appeal is dismissed. [ A.P. DESHPANDE, J] [SMT. R.P. SONDURBALDOTA, J] * 8 *