1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Family Court Appeal No.12 of 2009 Nitin Eknath Dhotre Appellant Vs. Gautamee Nitin Dhotre Respondent Mr.S.S.Redekar for appellant. CORAM: B.H.MARLAPALLE & D.G.KARNIK,JJ. March 6, 2009. P.C. 1. This appeal filed under Section 19 of the Family Courts Act, 1984 arises from the judgment and order dated 8/9/2008 rendered by the Family Court at Mumbai thereby dismissing Petition No.A-1697 of 2002 filed by the appellant - husband for seeking divorce on the ground of cruelty i.e. Section 13(1)(i-a) of the Hindu Marriage Act, 1955. Vide our order dated 29/1/2009 the parties were put on notice that the appeal would be decided at the admission stage itself and, therefore, R. & P. was called and the learned counsel was granted time to submit paper book which he has accordingly done. R. & P. has also been received from the Family Court at Mumbai and we have perused the same. 2. The parties were married on 10/12/2000 as per 2 the Hindu Vedic Rites at Mumbai. The appellant is a State Government employee, while the respondent was serving with a private firm and after marriage she left the job. It is the husband’s case that on 29/6/2001 the wife complained of abdominal pain and therefore, she was taken to the Gynaecologist and was admitted at Brahmin Sabha Hospital at Girgaum and was discharged within two days and was taken to her parents’ house. She left the matrimonial home on 1/5/2002 on her own and did not return. On 5/5/2002 she phoned up the petitioner and engaged in arguments with an intention not to return to the matrimonial home, claims the husband and, therefore, he filed M.J. Petition No.A-1697 of 2002 seeking divorce on the ground of cruelty. 3. The wife filed her Written Statement at Exhibit 7 and opposed the petition for divorce. She alleged that she was treated as a maid servant in the petitioner’s house and contended that the petitioner is a person with imbalanced mind. After she conceived, the husband and his family members started torturing her and forced her to continue to do hard work like filling up of water, lifting heavy pots, cooking, washing of utensils and all other household 3 work. When she was taken to the Brahmin Sabha Hospital at Girgaum, she was in a critical condition and was pregnant. At that time all the complications arose due to heavy physical work at home. Her eldest sister who is a doctor had advised her and her family members to shift her to any other hospital which was equipped with facilities to deal with emergency situation and the said suggestion was totally rejected. Finally she suffered an abortion and the petitioner had forcibly sent her to her parents’ house to arrange for Rs.1,00,000/- so that the petitioner could buy a residential premises for his eldest brother who was thinking of getting married at the age of 53 years. She further alleged that the petitioner and his family members were also demanding refrigerator, scooter, washing machine and 25" Colour Television from her parents. 4. In support of his claim for cruelty the petitioner examined himself and to oppose the same the respondent examined herself. No other family members or third party witnesses like friends, neighbours or relations were examined. The Family Court on considering the rival pleadings held that the petitioner failed to prove that he was treated with 4 cruelty by the wife after the marriage was solemnised and that the wife had proved that the husband was taking advantage of his own wrongs. Consequently, the petition filed by the husband came to be dismissed. 5. We have gone through the depositions of both the parties and the reasoning set out by the Family Court in support of its findings on both the issues framed by it. As per the husband the wife was treating him with cruelty right from 23/12/2000. She offered him tea of substandard quality on 23/12/2000. On 24/10/2001 he complained of severe pain in abdomen and, therefore, was shifted to Motiben Dalvi hospital. As per him stones were located in the abdomen and the cause of it was mental stress. During his two days’ of hospitalisation, the respondent never came to see him. On 21/12/2001 she picked up a quarrel and abused at his mother, as a result of which the mother’s blood pressure shot up and she was hospitalised. The respondent did not even bother to enquire about the mother’s health while she was in the hospital. On 21/3/2002 the wife did not prepare tea in the morning and for the reasons that there was no tea powder in the house. On the next day was his birthday and she raked up disputes and started abusing in filthy 5 language. However, he pardoned her with a hope that she would be normal. But on 5/4/2002 which was a pooja day, she again raised disputes and woke up late and was wearing an old sarree. On 30/4/2002 it was an Angaraki day to keep fast for Lord Ganesha but that day also she raised disputes and behaved very arrogantly with his mother. On 1/3/2002 she went to her parents’ house but without intimation to him and family members. On 5/5/2002 she phoned him from her parents’ house and threatened of dire consequences. . In his cross-examination the petitioner admitted that his elder brother was of 50 years of age and was unmarried. It was a joint family of five members and he had studied only upto 12th standard. He also stated that his mother was a patient but was not bedridden and at the same time a considerable portion of his salary was spent on his mother’s illness (Rs.2000/- per month) and he is a Clerk in Sales Tax Department and could not get any promotion from 1985. He did not know the amount of medical bill when the wife was hospitalised and she suffered miscarriage. He denied to have accepted Rs.25,500/- from the respondent’s father but when he was confronted with the photostat copy of the cheque, he 6 admitted that it was given to him to share the marriage expenses. He further admitted that the wife had approached the Samaj Seva Shakha and letter at Exhibit 29 was written to the said organisation by the wife’s sister. He also admitted that on 22/6/2002 he was hospitalised as he had consumed sixty calmpose tablets. He further admitted that he was suffering from hypertension. 6. On the other hand, the wife in her depositions before the Family Court stated that due to non fulfilment of dowry demands by her parents, the petitioner and his family members, especially his two unmarried sisters and the elder brother, adopted harsh methods of harassing including assaulting her physically. The husband along with his two sisters and elder brother had locked her up in a room continuously for two days without giving any food or water. She further stated that the husband had started ill-treating her from the twentieth day of the marriage i.e. on the day they had returned from honeymoon. The wife stated that by consuming calmpose tablets, the husband had tried to commit a mock suicide attempt and thereby tried to make her a scapegoat. She had gone to the Social Branch of the 7 police station at Crawford Market at least half a dozen time along with her sister where the petitioner was called for counselling but he never turned up. She stated that she is fully prepared to go back to the matrimonial house and start new family life with the petitioner but all her efforts had fallen on the deaf ears of the petitioner and his family members and they were not even prepared to discuss the issue. She admitted that after she left the job with a private firm at Borivali after marriage, she took up another employment with Mumbai Marathi Sahitya Sangh as a Clerk and was getting Rs.2000/- per month. She had left that job in the year 2003-04. She refuted the suggestion that she was not willing to cohabit with her husband. 7. The term "mental cruelty" has been defined in Black’s Law Dictionary and it means one spouse’s course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse. In the case of N.G. Dastane (Dr.) v. S. Dastane [(1975) [(1975) [(1975) 2 SCC 326] 2 SCC 326] 2 SCC 326] the Supreme Court had an occasion to examine in detail the position of mental cruelty and it held, 8 ""The inquiry therefore has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent." The word "cruelty" has not been defined in the Hindu Marriage Act though it has been used in Section 13(1)(i-a) of the said Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. The cruelty may be mental or physical. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. The intention is not a necessary element in cruelty. The concept of cruelty depends upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach 9 importance, judged by the standards of modern civilization in the background of the cultural heritage and traditions of our society. In the case of A.Jayachandra v. Aneel Kaur [(2005) 2 SCC 22] [(2005) 2 SCC 22] [(2005) 2 SCC 22] the Supreme Court held, "To constitute cruelty, the conduct complained of should be ‘grave and weighty’ so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than ‘ordinary wear and tear of married life’. ... It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce...." 8. Having regard to the above settled legal 10 position on the issue of cruelty, either mental or physical, we have examined the pleadings of the parties as placed before the Family Court and we are satisfied that the Family Court was right in recording its findings about the petitioner’s failure to prove any cruel behaviour on the part of the wife or any act of the wife so as to amount to any cruel treatment to the petitioner-husband. On the other hand the wife came out with clear instances of ill-treatment, harassment, and even physical assaults on the demand of dowry and other household articles to be supplied by her parents. She stated that she was ready and willing to come and join the matrimonial home but it was the husband who has not been showing any interest in restoring the matrimonial life. The Family Court rightly accepted the contentions of the wife and held that the husband was taking advantage of his own wrongs. The reasoning set out by the Family Court does not call for any reconsideration at our hands and hence this appeal must fail at the threshold. 9. Appeal is dismissed. (D.G.KARNIK,J.) (B.H.MARLAPALLE,J.)