* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLANT JURISDICTION FAMILY COURT APPEAL NO. 119 OF 2007 Mr. Gopal Malba Alapure Age : 36 yrs, Occ. Business r/o. 1st Floor, Vishal Park, Behind Barchmas Church, Vishrantinagar, Hingane Khurd, Pune- 411 051 .........Appellant VERSUS Mr. Asha Gopal Alapure Age- 32 yrs, Occ-Service r/o. 28, Rajyog Behind Harshal Palace, Anandnagar , Sinhagarh Road, Pune- 52 ........Respondent --------------------------------------------------------------------------------------------------------------------- Mr. P.V. Sawant, Advocate for the appellant. Mr. AbhayKumar Apte, Advocate for the respondent. --------------------------------------------------------------------------------------------------------------------- Coram :- A.P. Deshpande, & Smt. R.P. SondurBaldota, JJ. Judgment Reserved on :- 19th April, 2010. Judgment Pronounced on :- 27th April, 2010. JUDGMENT ( Per :- Smt. R.P. SondurBaldota, J) 1. The appellant-husband has preferred this appeal to challenge the correctness and legality of the judgment and order dated 25th * 2 * April, 2007 passed by Family Court, Pune allowing the petition filed by the respondent-wife for decree of divorce under Section 13(1)(ia) of The Hindu Marriage Act. 2. The undisputed facts of the case are as follows : The appellant and the respondent, both engineers were married on 29th June, 1997. The respondent at the relevant time was in service at Latur and the appellant was at Pune. He used to visit the respondent at the interval of 15 to 20 days at Latur. The respondent also used to, over the weekends, go to the place of her in-laws. In the year 1998, while the respondent was still at Latur she delivered a girl child on 1st September, 1998. In October, 1998 the respondent was brought to Pune as she was no longer in service. In January, 1999 she got a job as Civil Engineer in Irrigation Department of the State Government. The appellant then every day used to reach her to the office and also bring her back. Since November, 2003 the parties are residing separate as the appellant left the matrimonial home and shifted to an independent flat. The respondent then sent Advocate’s notice dated 26th August, 2005 to the appellant calling upon him to agree for divorce by mutual consent. About 2 years thereafter, i.e. on 25th April, 2006 she filed petition for divorce on the ground of cruelty. 3. The allegations to constitue cruelty as made in the petition are that, soon after the marriage, the respondent realised that the appellant had married her only because of her educational * 3 * qualification and service. When after the marriage, the respondent expressed her desire to shift to Pune to live with the appellant, he had stated that he had agreed for marriage with the respondent only because of her service and otherwise he was not interested in an ordinary looking woman. The father of the appellant also used to visit the respondent at Latur every month only to take money from the respondent. In September, 1997, the father-in-law made the respondent hand over all the gold ornaments on the pretext that the respondent was staying alone at Latur and that the ornaments would be safe in the house at Gunjoti. Later, when the respondent required the ornaments for the festival of Diwali, she was told that the ornaments were sold by the father-in-law to redeem the agricultural land which had been mortgaged. In the year 1998, when the respondent became pregnant, neither the appellant nor his family members came to Latur to look after her, though she was staying alone. At that time, once again the respondent had expressed her desire to shift to Pune but the appellant avoided saying that, he himself was residing in a hostel and there was no place where they could stay together. On 1st September, 1998 the respondent delivered a girl child. The appellant and his family members became upset with the birth of a girl child. In October, 1998 the respondent had lost her job and hence she was called to Pune by the appellant for the first time. Both were residing in rental premises. As the respondent had * 4 * lost her job, the appellant used to continuously quarrel with her and abuse her. He would also not give money for the household expenses. As the daughter was small, it was not possible for the respondent to leave her and take up a job. However, as soon as, it became possible, the respondent took up the job as Civil Engineer with the Irrigation Department of P.W.D. With this development, the appellant was happy. Since the respondent was not conversant with the city of Pune, he used to reach her to the office in the morning and also pick her up in the evening. But whenever he came to the office for this purpose, if he saw the respondent talking to any male staff member, he would pick up quarrel and also doubt her integrity. He would also visit her place of work and insult her in the presence of her colleagues for no reason. 4. In May, 2000 at the time of marriage ceremony of the brother of the respondent, the appellant created a scene by refusing to accept the gift and the gold ring given to him saying that he would accept the gift only alongwith a gold chain. He would refuse to take the respondent to any of the family functions because he felt ashamed of the looks of the respondent. 5. The respondent alleged that the appellant was using her only as a money making machine. He expected the respondent to use her contacts developed in connection with her service to get the appellant settled in his business. The appellant had started his independent business in the name of G.M. Alapure and Associates. With the help of * 5 * the respondent he got several customers and made progress in the business. However, with that the work of the respondent increased multifold as after her return from office the appellant used to compel her to prepare plans for his different projects. If the respondent refused for any reason, he used to pick up quarrel with her and also abuse her. 6. The appellant in his written statement denied all the allegations of cruelty made against him. As regards the allegation of separate residence at Latur and Pune and the appellant not being available as a support to the respondent at the time of her pregnancy, the appellant contended that the respondent had to necessarily stay at Latur on account of her service. Further, with his limited income it was not possible for him to set up a house at Pune and also maintain it. The appellant, however, used to regularly visit the respondent at Latur over the weekends and on holidays. The appellant, however, desired to be with the respondent during her pregnancy, because of his service commitments and lack of sufficient financial resources, it was not possible for him to do so. The appellant does not dispute that the respondent used to prepare plans and maps for his business projects. He however contends that this was done by her voluntarily and there was no compulsion. He also claims to have paid money to the respondent in cash from time to time for that work. He does not dispute the incident of refusal to accept gift during the marriage * 6 * ceremony of the brother of the respondent. He claims that he refused the gift looking to the financial condition of the parents of the respondent. As regards the separate residence since November, 2003, the appellant denies the same and contends that at the relevant time the respondent had been residing at Dramatic on account of her service and used to visit Pune once in a week or a fortnight. When she returned to reside to Pune in January, 2005 she quarrelled with the appellant and threw him out of the matrimonial house. 7. The appellant alleges that on 14th June 2004, the respondent told him that she was in love with her classmate, one Shir. Subhash Husnale, a resident of Miraj. They could not get married because of the opposition from the respondent mother. Both were again in contact with each other since six months prior to the date. Wife of Subhash had consented for the second marriage of Subhash with the respondent. On hearing this, the appellant was shocked and he asked the respondent about the future of the daughter, Akshaya to which she responded by saying that, that could be taken care of later. On 19th June, 2004 wife of Subhash along with his brother-in-law and son came to Pune. The appellant met her in a hotel at Katraj and told her that he didn’t want his marriage with the respondent to be broken and sought her help. Thereafter, when the respondent came to the hotel from Baramati, wife of Subhash tried to reason with her for not breaking her marriage, but, with that the respondent became upset * 7 * and started crying loudly. She also alleged that the appellant and Akshaya were coming in the way of her happiness. Lastly, in the written statement the appellant sought for dismissal of the petition for divorce and also for permanent custody of daughter, Akshaya alleging that the respondent is unable to pay proper attention to up bringing of the daughter. 8. The respondent examined herself and one Chhaya Birajdar in support of her case, whereas, the appellant examined only himself. The Family Court found that the respondent had given in her evidence, detailed account of ill-treatment received at the hands of the appellant. It found her evidence to be reliable and convincing as against the evidence of the appellant which consisted of mere denials. It also took into consideration the conduct of the appellant before and after filing of the petition. Though the appellant apparently expressed his readiness to cohabit with the respondent, infact he had not made any efforts to resume cohabitation with the respondent. The family Court also took note of the fact that the appellant had indulged in suspecting the character of the respondent and ill-treated her for a long time. For these reasons, the Family Court allowed the petition and dissolved the marriage by decree of divorce. 9. We have carefully gone through the entire notes of evidence forming part of the compilation. The respondent has in detail stated every incident constituting cruelty in her evidence. In her cross- * 8 * examination, it was suggested to her that she was interested in marrying one Subhash Husnale and had subsequently resumed relations with him, while she was at Baramati. Perusal of the evidence of the respondent in its entirety shows that it is completely consistent with her petition. She has in terms denied the allegations made by the appellant about any interest in Subhash Husnale and her desire to marry him or to abandon daughter, Akshaya for that purpose. She also denied the alleged incident of the meeting with the wife of Subhash at a hotel in Katraj and further facts allegedly concerning him. As compared to this, after making serious allegation as regards the interest of the respondent in Subhash Husnale, the appellant has not been able to substantiate the same. Undisputedly, the parties had been residing separately for more than a year after the marriage. Though the respondent had a job at Latur, she had expressed her desire to settle at Pune with the appellant, but the appellant had not permitted the same on the pretext of service of the respondent. The evidence of the respondent is substantially corroborated by the evidence of the witness, Chhaya who is her friend. 10. On appreciation of the evidence, we are of the opinion that the respondent has established the allegations of cruelty made against the appellant. Further, as has been rightly observed by the Family Court, the desire expressed by the appellant to continue with the marriage and cohabit with the respondent is limited to the written statement * 9 * and that he has not made any real efforts to resume cohabitation with the respondent. His conduct in making serious allegations casting aspersions on the character of the respondent, can also not be consistent with his desire to continue the marriage. 11. In all the above circumstances, we dismiss the appeal. [SMT. R.P. SONDURBALDOTA, J] [A.P. DESHPANDE, J]