1 1603 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 16 OF 2003 Sanjeev Vyankatesh Ranade, Age 41 years, Occ:-Business, Residing at 17/A/6, Vijay Bunglow, Near Ashwamedh Hall, Erandwana, Karve Road, Pune- 411 004. ...Appellant Versus Meghna Sanjeev Ranade, Age 39 years, Occ:Housewife, Residing at C/o.M.P.Sidhya (M.B.B.S.), Survey No.10/3-A/1, Near Kailash Jeevan Company, Dhayari, Pune – 411 041. ...Respondent WITH FAMILY COURT APPEAL NO. 85 OF 2003 WITH CIVIL APPLICATION NO.28 OF 2004 WITH CIVIL APPLICATION NO.79 OF 2007 WITH CIVIL APPLICATION NO.87 OF 2007 Meghana Sanjeev Ranade, Age 39 years, Occ:Housewife, R/o. C/o.M.P.Sidhya (M.B.B.S.), Survey No.10/3-A/1, Near Kailash Jeevan Company, Dhayari, Pune – 411 004. ...Appellant Versus Sanjeev Vyankatesh Ranade Age 41 years, Occ:-Business, Residing at 17/A/6, Vijay Bunglow, Near Ashwamedh Hall, Erandwana, Karve Road, Pune- 411 004. ...Respondent 2 1603 WITH CIVIL APPLICATION NO.262 OF 2008 IN CIVIL APPLICATION NO.16 OF 2006 IN FAMILY COURT APPEAL NO.85 OF 2003 Meghna Sanjeev Ranade ...Appellant Versus Sanjeev Venkatesh Ranade ...Respondent And Suvarna Sahakari Bank Ltd. ...Applicant ...... Mr. A.V. Anturkar for Sanjeev Ranade-husband. Mr. P.R Arjunwadkar for Meghna Ranade-wife. Mr. R.V. Govilkar for the Applicant in Civil Application No. 262 of 2008. ...... CORAM: A.M. KHANWILKAR AND R.Y. GANOO, JJ. RESERVED ON: JUNE 14, 2011 DELIVERED ON: JULY 21, 2011 JUDGMENT (Per A.M. Khanwilkar, J.):- 1. By this common judgment, we propose to dispose of both the appeals together. For the sake of convenience, we will refer to the parties as ‘husband’ and ‘wife’. 3 1603 2. Family Court Appeal No. 16 of 2003 has been filed by the husband against the judgment and decree passed by the Judge, Family Court No. 3, Pune, dated 13th December, 2002, dismissing the petition filed by him for divorce under Section 13 (1-A) (ii) of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘HMA’, for the sake of brevity), being Petition A-No. 28 of 2000. The companion Family Court Appeal No. 85 of 2003, has been filed by the wife against the judgment and decree passed by the Judge, Family Court, Pune, dated 13th December, 2002 for enhancement of maintenance amount under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as ‘HAMA’, for the sake of brevity), higher than the maintenance amount determined by the Family Court in petition filed by her, being Petition C - No. 55 of 2001. Besides these appeals, there are four civil applications filed during the pendency of Family Court Appeal No. 85 of 2003, being Civil Application No. 28 of 2004, 79 and 87 of 2007 filed by the wife and Civil Application No.262 of 2008 filed by a third party, Suvarna Sahakari Bank Ltd. Even the said applications will be disposed of by this common judgment. 4 1603 3. We shall first deal with the appeal filed by the husband. The relevant facts for considering the said appeal are that, marriage was solemnised between the parties on 8th February, 1993. No issue is born out of the said wedlock. On account of some differences, the parties started staying separately. It is the case of the wife that she was sent to her parental house by her husband, and was not allowed to return to the matrimonial house and to cohabit with the husband. As a result, she filed petition for restitution of conjugal rights in the year 1998, being No. PA.813 of 1998. The said application was contested by the husband. The husband filed cross petition for a decree of divorce. However, the Court decreed the petition for restitution of conjugal rights filed by the wife and rejected the cross petition filed by the husband for a decree of divorce, vide decision dated 26th November, 2000. 4. It is the case of the wife that, in spite of the abovesaid decree, the husband did not permit her to return to her matrimonial house and to cohabit with him. She had no source of income of her own, and was fully dependent on her father. For that reason, she filed Petition C- No. 55 of 2001 for maintenance under Section 18 of HAMA on 29th May, 2001. While that petition was pending, the husband filed petition for divorce under Section 13 (1-A)(ii) of HMA before the Family Court on 5 1603 10th January, 2002, being Petition A No. 28 of 2002. The husband’s petition came to be dismissed by the Family Court vide impugned judgment and decree dated 13th December, 2002. The Family Court negatived the relief of divorce claimed by the husband on the finding that he has taken advantage of his own wrong. The Family Court exercised its discretion against the husband on recording the above satisfaction in terms of Section 23(1)(a) of HMA. For that, the Family Court noted two aspects: Firstly, that the husband did not allow the wife to enter his house for resuming cohabitation and frustrated all efforts made by the wife in that behalf. Secondly, he was in arrears of an amount of interim alimony of Rs.30,000/-. This decision is the subject-mater of challenge in the appeal filed by the husband. 5. We shall first revert to the pleadings of the parties. In the petition for divorce filed by the husband, he has stated that the wife, in spite of the decree of restitution of conjugal rights, or even prior to the filing of the said petition for such relief, had not cohabited together. Further, the wife did not make any sincere effort for restitution, apart from sending letter to him for restitution. The wife never visited him after the decree of restitution of conjugal rights. That shows that the wife was not at all interested in cohabitation / restitution. The husband 6 1603 further asserted that no execution proceedings were filed by the wife after the decree in her favour for restitution of conjugal rights dated 26th November, 2000. Whereas, she chose to file petition for maintenance under Section 18 of HAMA. This conduct of the wife reveals her greedy attitude. The husband further alleged that, during the pendency of the application for restitution filed by the wife, she took away all her ornaments through Court Commissioner, which fact is also indicative of her intention that she did not want to reside with him. The husband asserted that there has been no restitution of conjugal rights between the parties to the marriage for a period of more than one year after the passing of decree for restitution of conjugal rights in a proceeding to which they were parties. In this backdrop, the husband prayed for a decree of divorce under Section 13 (1-A) (ii) of HMA. He further asserted that his business was running in heavy losses, and property belonging to him has been mortgaged to the bank. Further, the movables in the hotel premises have been attached by the Sales Tax Department for non-payment of dues. He has also received electricity bills from M.S.E.B. for Rs.5,04,000/-. Besides, he owes Rs.50,000/- to E.S.I., for which the E.S.I. Department has attached his bank account. He has further stated that, on account of these developments, he is under severe mental stress and is not in a position to take any further steps, which may 7 1603 cause some harm to his health. He has asserted that his marriage has been irretrievably broken down, and there are no chances of reconciliation. 6. The wife contested the said petition by filing Written Statement. In substance, she denied the allegations made in the petition. Instead, consistent with her case stated in the Petition filed by her for maintenance which was earlier in point of time, she asserted that the husband has failed and neglected to maintain her, and refused her entry in the matrimonial house. It is her case that attempts made by her to resume cohabitation after the decree for restitution were frustrated by the husband. The husband refused her entry in the matrimonial house. She has given specific details of such unsuccessful attempts made by her to resume cohabitation with the husband. She has denied that she demanded money from the husband when she visited his house after the decree for restitution of conjugal rights in her favour. She has also denied that she was not interested in cohabitation and restitution. She has asserted that, under compelling circumstances, she was required to file petition for maintenance, and not out of greed for money, as is alleged by the husband. She has also denied the allegation that she has taken away all her belongings from the matrimonial home as alleged. 8 1603 She has clarified that she has taken away some of her belongings. That, however, contends the wife, would not mean that she has no desire or intention to reside with the husband. She has asserted that the plea of financial difficulties and heavy business losses has sprung only after she filed application for restitution of conjugal rights. She has denied that the marriage has irretrievably broken down as has been suggested by the husband. It is her case that the husband successively thwarted all her attempts to resume cohabitation. She has asserted that, in the first place, she tried to contact the husband on telephone. She also sent letters to the husband, which remained un-replied. Then she went along with her father to her matrimonial home on 30th December, 2000. The husband was present in the house, but did not allow her to enter the house on the pretext that he intends to file appeal against the decision of the Family Court granting decree for restitution of conjugal rights in her favour. She had to come back, totally dejected, and could not resume cohabitation with her husband, who has, in fact, deserted her. It is her case that the husband was not even providing any maintenance to her, in spite of the decree for restitution of conjugal rights in her favour. The cheques tendered by the husband for interim maintenance were dishonoured, and he remained in arrears, thereby compelling her to remain at the mercy of her father. According to the wife, the husband not only failed to abide by 9 1603 the decree for restitution of conjugal rights, but prevented her from resuming cohabitation and to discharge their marital obligations. According to the wife, therefore, the husband has disentitled himself for a decree of divorce within the meaning of Section 23(1)(a) of HMA. 7. On the basis of the pleadings in the Petition for divorce filed by the husband, the Family Court framed two points: (1) Does the respondent (wife) prove that the petitioner (husband) is taking advantage of his own wrong? (2) What order? 8. The parties examined themselves on oath. The husband did not examine any other witness. The wife, in addition to herself, examined her father as her witness. 9. In the examination-in-chief, the husband reiterated his case made out in the petition. He stated that, after the marriage, he stayed with his wife together for about five years. On 13th December, 1998, the wife asked him to leave her parental house. He, accordingly, left her at her parents’ place. The wife, thereafter, did not return to the matrimonial home. Later on, she filed application for restitution of 10 1603 conjugal rights, which was decreed on 26th November, 2000. After giving these details, he has stated that the wife did not file any execution petition for restitution of conjugal rights. She did not come to his house after passing the decree for restitution, and hence, he prayed for a decree of divorce in his favour. This is the gist of husband’s examination-in- chief. 10. The husband was extensively cross-examined by the wife. He admitted that he did not file any appeal against the decree for restitution of conjugal rights. He denied having received any phone calls from the wife after the decree for restitution. He also denied that the wife had visited his house on 30th December, 2000 or that he refused her entry in the house on the pretext that he wanted to prefer appeal against the decree for restitution. He, however, admitted that he received letter sent to him by the wife, whereby the wife had shown her willingness to resume cohabitation. He has clarified the assertion made by him in paragraph 3 of his petition that the wife continued demanding money. He has said that it means that she demanded money of interim alimony granted to her. He has admitted that he did not deposit interim alimony regularly, but asserted that he could not do so because of his financial condition. He has admitted that, when the decree for restitution was 11 1603 passed, he was in arrears of interim alimony of Rs. 30,000/-. He has also admitted that he has not paid any amount to the wife after the decree for restitution was passed till she filed maintenance petition. He has stated that the outstanding amount against him with regard to his hotel business payable to Suvarna Sahakari Bank since November, 2000 to July, 2002 was Rs.1,85,00,000/-, and he did not deposit any amount to satisfy that loan. He has admitted that he did not execute the decree for restitution of conjugal rights. He has admitted that he had preferred writ petition against order of maintenance (interim) passed by the Family Court on the earlier occasion. That writ petition was dismissed. He has then stated about the reason for not filing appeal against the decree for restitution of conjugal rights, as he could not afford fees of the advocate. He has denied the suggestion that he had decided to wait for a period of one year after the decree for restitution and intentionally did not pay the interim maintenance regularly so as to harass the wife and weaken her financially. 11. The wife examined herself as witness No. 1 in support of her plea. In her evidence, she has stated that she tried to make a phone call to her husband to inform him that she was coming to cohabit with him, but the husband was not available on phone. She has then stated 12 1603 that on 25th December, 2000, she, along with her father, had visited her matrimonial house, but they found that the house was locked. The car belonging to her husband was however seen parked outside the house, for which reason, they waited near the house for almost one hour, but, since the husband did not arrive, they had to return back. She has then stated that, on 30th December, 2000, she, along with her father, once again, visited the matrimonial house when the husband was at home. However, the husband stood at the door, and told her that he will not take her in the house, and she should not enter his house. She has stated that her husband further told her that he was intending to prefer appeal to the High Court against the decree for restitution, and hence, she should not enter his house. She has further stated that, thereafter, for about two to three months, she tried to make phone calls to her husband to request him to allow her to cohabit with him, but the husband did not give any reply. She showed willingness to produce the telephone bills. She has stated that the husband used to tell her on phone that he would not cohabit with her and she should not speak to him. She has stated that she made phone call to her husband on 22nd December, 2000. Thereafter, she sent letter to her husband on 5th January, 2001, informing him that she wanted to come back to the matrimonial home. She produced copy of the said letter and Registered Post A/D. She has then stated that on 28th January, 2001, she 13 1603 had made phone call to the husband, but he did not reply. She has then deposed that her husband was not depositing amount of interim alimony regularly. She has stated that her husband had not provided her any further maintenance. She has stated that on 6th February, 2001, she made phone call to her husband, but he did not respond. She has asserted in her evidence that she was not ready to give divorce to her husband. She has further stated that her husband never made any enquiry after the decree for restitution, though she made efforts for cohabitation with him. She has stated that the financial condition of her husband is sound. Notably, the cross-examination of the wife conducted by the husband is very cryptic and brief. It reads thus:- “(Cross-Exam. on behalf of the petitioner by Shri. Ranade Advocate) 4. I had not filed an execution petition to execute the decree for restitution of conjugal rights. The contents of PE No. 6(d) of my written statement Exh. 5 are correct.” 12. The wife examined her father in support of her case as Witness No. 2. Her father, Mukund Prabhakar Sidhaye, deposed that, after the decree by the Family Court for restitution of conjugal rights, he, along with his daughter, visited the residence of the husband on 25th December, 2000. At that time, nobody was present in the house. He 14 1603 visited, for the second time, along with his daughter, on 30th December, 2000 to the house of the husband. At that time, the husband did not allow them to enter his house. He has further stated that, after filing Darkhast for recovery of the amount by his daughter, he, along with his daughter, had gone to the residence of the husband. The nephew of the husband was present, who told him that the husband was not at home. One hour after their arrival, the husband came to see them, and told them that he does not want the wife to enter his house. 13. This witness has been cross-examined by the husband. The cross-examination reads thus:- “Cross Examn. on behalf of the petitioner by Shri. Ranade Advocate. 2. On 25.12.2000, when petitioner was not found in his house, we made his enquiry with his neighbours. We made his enquiry with one Mr. Walimbe. My daughter had gone at the house of Walimbe and I was standing outside. It is not true to say that we had not gone to the house of petitioner on 25.12.2000. After 30.12.2000, we did not give the notice to the petitioner. It is not true to say that on 30.12.2000, we had not gone at the place of petitioner. It is not true to say that I depose falsely upon the say of my daughter.” 14. The Family Court analysed the above referred pleadings and evidence brought on record by both the parties. It accepted the plea of the wife that the husband did not allow her to enter the matrimonial 15 1603 house. Moreover, the husband did not respond to the letters sent by the wife or attended her phone calls. The Court opined that the husband frustrated all the attempts of the wife to resume cohabitation. Besides, the husband did not deposit the amount of interim alimony awarded to the wife regularly in the earlier proceedings. The Court found that the husband has not even asserted that he himself made any effort or made a single attempt to cohabit with the wife after the decree for restitution of conjugal rights, which shows that he was not willing to cohabit with his wife. On the above findings, the Family Court proceeded to dismiss the petition on the ground that the husband disentitled himself for a decree of divorce, as he had taken advantage of his own wrong. 15. The husband has challenged this decision on the argument that mere disinclination of the husband to respond to the letters or to attempt to cohabit with the wife after the decree for restitution of conjugal rights, ipso facto, would not amount to taking advantage of one’s own wrong. To buttress this submission, reliance has been placed on the decision of the Apex Court in the case of Dharmendra Kumar v. Usha Kumar, reported in (1977) 4 SCC 12, and of this Court in the case of Sunita Rajendra Nikalje v. Rajendra Eknath Nikalje, reported in 1996 (1) 16 1603 Mh.L.J. 572, and Hari Dattatraya Shitole v. Meena Hari Shitole, reported in 2000(1) Mh.L.J. 398. 16. It is further argued on behalf of the husband that mere non-payment of maintenance, by itself, cannot be considered as a ‘wrong’ within the meaning of Section 23(1)(a) of HMA. Reliance is placed on the decision of the Supreme Court in the case of Hirachand Srinivas Managaonkar v. Sunanda, reported in (2001) 4 SCC 125. According to the husband, out of maintenance amount of Rs.1,40,000/-, an amount of Rs.1,10,000/- has been paid. Even the amount of interim alimony, which was granted with effect from 29th May, 2001 at the rate of Rs.2,000/- per month, has been regularly paid. Further, the outstanding amount could not be paid due to financial stringency. Thus, it cannot be said that the husband was taking advantage of his own wrong. Further, even if the default was committed by the husband, that was much before the decree for restitution of conjugal rights was passed on 26th November, 2000. That default cannot be reckoned and held against the husband to refuse relief of divorce to him under Section 13 (1-A)(ii) of HMA. Whereas, the relevant period during which the wrong committed by the husband could be taken into account is one year period from the date the 17 1603 decree for restitution of conjugal rights is passed, and not anterior thereto. 17. On the other hand, the counsel for the wife would argue that the act of the husband of not obeying the decree for restitution of conjugal rights is itself a “wrong”. In any case, obstructing the wife’s entry in the matrimonial house is a “serious wrong”. It was argued that till today, the wife has not been allowed to resume cohabitation. Moreover, there was no just reason to deprive the wife of the maintenance amount, which was awarded by the Court. The outstanding maintenance amount of Rs.30,000/- was in relation to the order of the Court which operated during the pendency of application for restitution of conjugal rights. During the pendency of the said application, the Family Court had granted interim maintenance only in the sum of Rs. 1,000/- per month vide order dated 3rd August, 1999. The husband, however, chose to challenge that decision before the High Court by way of Writ Petition No. 5672 of 1999, which was eventually rejected. This Court, instead enhanced the interim maintenance amount to Rs.10,000/- per month from October, 1999. The husband, no doubt, paid the amount at that rate for only 11 months, but remained in arrears for around three months when the application for restitution of conjugal rights came to be 18 1603 disposed of on 26th November, 2000. After disposal of the said application, the husband “intentionally” did not pay the balance amount to the wife. 18. Having considered the pleadings and the evidence produced by the parties, the first question is: Whether the finding of fact reached by the Family Court, that the husband has taken advantage of his own wrong, can be said to be manifestly wrong? From the evidence of the husband, there is nothing to indicate that he himself made any attempt to resume cohabitation with his wife after the decree for restitution of conjugal rights was passed by the Family Court. Indeed, such disinclination of the husband, by itself, may not be a wrong of such gravity so as to deny him decree of divorce. However, the wife, besides cross-examining the husband, has also examined herself and her father so as to establish the fact that, she repeatedly made attempts to return to her matrimonial house after the decree for restitution of conjugal rights was passed. However, each of those attempts were frustrated by the husband. Significantly, on one occasion when the husband