1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 38 OF 2007 IN M.J. PETITION NO.A-471 OF 2002 AND MAINTENANCE PETIITON NO.C-17 OF 2007 Mrs. Jigna Devang Shah ] Age : 27 years, Occ.: Housewife, ] R/o : C/o Anil Kamdar, 46/B, ] Appellant Sindhu Baug, Tilak Road, ] (Ori. respondent) Ghatkopar (East), Mumbai - 400 077 ] Vs. Mr. Devang Prataprai Shah ] Age : 30 years, Occ. : Business ] R/o : Prataprai Shah, ] Respondent Flat No.5, Akshayadham, ] (Ori. petitioner) Amrit Vihar Co-op. Hsg. Soc. ] L.B.S. Marg, Ghatkopar (W), ] Mumbai - 400 086. ] Mr. Dinesh P. Shah, Advocate for appellant. Mr. A.M. Vernekar, Advocate for respondent. WITH FAMILY COURT APPEAL NO. 39 OF 2007 Mr. Devang Prataprai Shah ] Age : 30 years, Occ. : Business ] R/o : Prataprai Shah, Flat No.5, ] Appellant Akshayadham, Amrit Vihar Co-op. Hsg. Soc.] (Ori. appellant) L.B.S. Marg, Ghatkopar (W), ] Mumbai - 400 086. ] 2 Vs. Mrs. Jigna Devang Shah ] Age : 27 years, Occ.: Housewife, ] R/o : C/o Anil Kamdar, 46/B, ] Respondent Sindhu Baug, Tilak Road, ] (Ori. respondent) Ghatkopar (East), ] Mumbai - 400 077 ] Mr. A.M. Vernekar, Advocate for the appellant. Mr. Dinesh P. Shah, Advocate for the respondent. Coram : A.P. Deshpande, & Smt. R.P. SondurBaldota, JJ. Date : 27th April, 2010. JUDGMENT : ( Per A.P. Deshpande, J.) 1. As common questions of fact and law arises in both the appeals, the appeals are heard together and are being disposed of by this common judgment. 2. The Family Court Appeal No.38 of 2007 is filed by the wife challenging the judgment and decree passed by the Family Court granting divorce to the husband on the ground of cruelty and desertion under Section 13(1) (ia) and (ib) of the Act, whereas, the Family Court Appeal No. 39 of 2007 is filed by the husband taking an exception to that part of the judgment and decree passed by the Family Court, which goes to direct payment of maintenance in the sum of Rs.5,000/- to the minor daughter by 3 name Miloni and directs making a provision for accommodation either “ ” on ownership or rental basis. 3. The marriage between the parties was solemnized on 27th November 1997. Their marriage was an arranged marriage performed according to Hindu rites and customs. After the marriage, for few days, the parties lived happily. However, by passage of time, cracks developed in their relationship. It is the case of the husband that the respondent was reluctant to discharge her marital obligations and duties. However, he ignored them with a hope that the wife would adjust in the family and things would be sorted out. The wife gave birth to a female child on 7th January 1999. The discord in the matrimonial relationship erupted on 16th October 1999 touching a very trivial issue. Since 16th October 1999 onwards despite the efforts made by the husband, the wife continued to stay at the residence of her father. It can be thus seen that for more than last 10 years, the parties are staying separately. It is the case of the husband that the wife has withdrawn from the society and has abandoned the matrimonial relationship from 16th October 1999, whereas, it is the case of the wife that she was constrained to leave the matrimonial house on account of compelling and unavoidable circumstances, for which she blames the mother-in-law. It is the case of the wife that the appellant under the influence and pressure of his mother ill-treated her and hence the wife on 4 that count was justified in withdrawing from the society of the husband. The incident that had taken place on 16th October 1999 was a very petty issue in as much as according to the wife, the mother-in-law asked her to get down a big box of wheat kept on the shelf in the kitchen. However, as the wife had some pain in the heels, she found it difficult to do the work asked by the mother-in-law. At that point of time, the husband was watching cricket match on television and when the wife went to him and asked him to come immediately to the kitchen for bringing down the wheat box kept on the shelf, he informed that he would come immediately after the match is over as it was at very interesting stage. This trivial incident wherein the mother-in-law was insisting for getting the wheat box down immediately, the wife declining to do so, on the ground that it was not possible for her and as the husband did not immediately respond to the situation, it went out of control. The occurrence of this incident according to both sides is the main cause for what transpired thereafter on that day. According to the wife she was insulted and humiliated for not performing the household work, whereas according to the husband, the wife started abusing the mother-in-law and father-in-law and immediately telephoned her family members and left for the residence of her father along with her father. It can thus be seen that the incident that had taken place on 16th October 1999 was not a big issue. Nothing had preceded the 5 occurrence of the incident dated 16th October 1999. However, fact remains that from 16th October 1999 onwards, the wife has stayed at her parents place and did not return to matrimonial house. Whether the wife had left the house of her own on 16th October 1999, or whether she was made to leave the same is not relevant as the said incident had taken place in heat of anger. Hence not much importance can be attached to the fact as to who was at fault on 16th October 1999. The real question is about the conduct of the parties after they separated in heat of moment on 16th October 1999. The subsequent conduct in the present case would determine the fate of these appeals. 4. According to the husband, after the wife left matrimonial home on 16th October 1999 on number of occasions, the husband persuaded the wife to come back and join cohabitation. According to the husband not only that he made efforts at his level but also took the help of relations and acquaintances for pursuing the wife to join the company, but the attitude of the wife was adamant. She started insisting that the husband and wife need to stay separate from the family of the respondent and declined to reunite in the join family. Not only various meetings had taken place, but also there has been exchange of letters and notices over a period of time. We will refer to the letters and notices in the later part of this judgment. However, the efforts made by the husband in seeking reconciliation need to 6 go on record. On 21st November 1999, the petitioner had approached the respondent through one Mr. Kurbhai with a view to persuade her to resolve the grievances and to achieve reconciliation. In between 27th November to 1st December 1999, the petitioner had been to the residence of the parents of the respondent, as the wife s brother s marriage was to be ’ ’ performed. It is an admitted position that not only the husband but his family members had also gone to attend the marriage ceremony and they had also carried along with them sarees and ornaments to be worn at that important function. This is one of the important circumstance which would clearly go to indicate that despite what had transpired on 16th October 1999 by the end of November, the husband and his family members did attend the marriage at the residence of wife and had shown and exhibited reconciliatory gestures. Thereafter at the end of December 1999 a meeting was held at the residence of one Mr. Shantibhai Lakhani, which was attended by elderly persons from both the families. This meeting was arranged at the behest of husband. Thereafter from January to April 2000, various attempts were made which proved futile. Thereafter on 1st May 2000, the appellant had personally visited the wife, but according to the husband, she expressed her reluctance to join the company of the husband. Thus according to the husband all the efforts made by him with a view to restore the harmony in the matrimonial 7 relationship between the parties failed on account of stubborn and adamant attitude of the wife. The perusal of the evidence led on behalf of the husband goes to substantiate the fact that there has been consistent approaches made by the husband to the wife to iron out the differences and resolve the dispute, but for reasons best known, there has been no response from the wife s side. The trial court on appreciation of evidence ’ led by the parties has reached the conclusion that the wife had withdrawn herself from the company of the husband and from the subsequent conduct of the wife, the Court below has inferred an intention on the part of the wife to abandon the matrimonial relationship permanently. Written communications are exchanged between the parties from 8th May 2000 onwards. There are various letters and notices written by both the parties and the entire correspondence leave no room of doubt, that the husband was ready and willing to cohabit but the wife was not. The entire correspondence from the husband has been in a conciliatory mode. The communications dated 8th May 2000, 14th May 2000, her replies dated 27th May 2000, 31st May 2000 and further letters written from 25th June to end of February 2001 would clearly go to show the persuasion on the part of the husband to bring back the wife. The most crucial letter issued on behalf of the husband by his lawyer happened to be a communication dated 31st May 2000. In this letter after bringing on record, the efforts 8 taken by the husband to patch up the differences, lastly an option was given to the wife and the option given in communication dated 31st May 2000, reads thus : In view of the above, we are instructed by our clients to call “ upon you which we hereby do as as under :- (a) .................. (b) to return to your matrimonial home or (c) In the alternative to (b) above to agree to a divorce by mutual consent ........................... The wife has replied the said communication through an Advocate by name Shri. D.P. Shah. In the reply, the stand of the wife is categorically stated and the same reads thus : With reference to main issue (b), my client expresses “ her inability to return to her matrimonial home unless the atmosphere in the matrimonial home is improved. The atmosphere in which my client was compelled to leave is better known to your client. ” With reference to main issue (c), my client expresses her desire to give consent as sought para therein (i) if your client express his inability to change the atmosphere in the matrimonial home and (ii) if your client withdraws the baseless allegations made in your notice dated 31st May 2000. Which are false and frivolous.“ 5. It is relevant to note that the option given on behalf of the husband was (i) return back to the matrimonial home or in the alternative a divorce by mutual consent. The wife categorically and specifically rejected the 9 offer for return to the matrimonial home unless the atmosphere in the matrimonial home is congenial for her returning back and consciously accepting the option at (c) for a divorce by mutual consent. From the subsequent conduct of the parties which is revealed from the oral evidence and exchange of notices, it is crystal clear that after the wife left the matrimonial home on 16th October 1999, she had taken no steps for reconciliation and had not responded to the approaches made by the husband for reconciliation in the same spirit. She had stuck to her decision that the atmosphere in the matrimonial home if not worth returning back, hence she would not return back for cohabitation with the husband and had opted for divorce by mutual consent. It is thus clear that the Family Court has rightly held that the conduct of the parties clearly reveal that the wife had withdrawn from the society and company of the husband for no just and valid cause or reason. As mentioned herein above the trivial incident which had taken place on 16th October 1999 has been blown out of proportion by the wife. Wife cannot be blamed for leaving the house on 16th October 1999, as it could be said to be in heat of anger. However, the conduct subsequent thereto leaves no room of doubt that though the husband tried to iron out of the differences and took efforts to patch up, there was hardly any response from the wife. The wife not only stubbornly insisted for separate stay from the joint 10 family, but also in the end opted for divorce by mutual consent than going back to matrimonial home. Even when the matter was pending before the Family Court, the wife collected ornaments and her belongings. The intention on the part of the wife to put an end to the marital relationship permanently is clearly established from the evidence, which the Family Court correctly marshaled and dealt with in its judgment. 6. We have perused the judgment and decree impugned in this appeal and we do not find any reason to interfere with the same. Thus, the Family Court appeal No.38 of 2007 filed by the wife deserves to be dismissed. 7. During the course of hearing, the learned counsel for the husband has pointed out that the Family court had granted maintenance of Rs. 5,000/- per month to the minor daughter and the appellant continues to pay the same. In all fairness, he submits that the challenge to the award of maintenance in favour of the daughter is not pressed and is specifically given up. We accept the statement. In so far as making a provision for accommodation for residence of minor child, and the wife (the mother), the Family Court had directed the husband to make provision for residential accommodation. We are informed that the monetary liability fastened on the husband was to the tune of 75% including the outgoings whereas the wife was supposed to bear the financial burden to the extent of 25% of 11 the expenses for procuring the accommodation. We are informed at bar that the liability of the husband towards making a provision of residential accommodation has been translated in money value and the husband has been directed to pay a sum of Rs.7,500/- to the wife for making a provision for residence of wife and the daughter under an interim order. The learned counsel for the husband does not even question the correctness of the order which directs payment of 75% of the charges to be borne by the husband for making a provision for residential accommodation. In all fairness even challenge to this part of judgment and decree passed by the Family Court is given up. We accept the said statement. In view of the fact that the appellant-husband has given up the challenge to the order passed by the Family Court directing to make provision for residential accommodation and for payment of maintenance to the child, nothing survives in the Appeal No.39 of 2007. The Appeal is rendered infructuous. Hence the same is dismissed with no order as to costs. (Smt. R.P. SondurBaldota, J.) ( A.P. Deshpande, J. )