1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Family Court Appeal No. 190 of 2008 Mr.Sudhir Krishna Salunkhe Appellant Vs. Mrs.Aditi @ Pushpa Sudhir Salunkhe Respondent Mr.S.C.Thatte for appellant. Ms.Sabina Mukadam i/b. Mr.D.S.Paranjape for respondent. CORAM: B.H.MARLAPALLE & D.G.KARNIK,JJ. March 3, 2009. P.C. 1. This appeal filed under Section 19 of the Family Courts Act arises from the judgment and order dated 24/6/2008 passed by the Family Court at Mumbai thereby dismissing the husband’s Petition No.A-740 of 2003 filed for divorce under Section 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955. As noted in our order dated 3/2/2009, the parties were put on notice that the appeal could be decided at the admission stage itself and accordingly R. & P. has been received and the respondent is represented by Ms.Sabina Mukadam i/b. Mr.D.S. Paranjape. The respondent has also filed affidavit-in-reply. 2 2. The parties were married on 15/2/2001 as per the Hindu Vedic Rites at Mumbai and the marriage was registered. As per the husband the wife left his matrimonial home on 21/3/2001 i.e. within one month and ten days and never returned back despite the fact that he issued legal notice on 26/12/2002 which was replied on 15/1/2003. He also submitted that within that short period of one month and ten days the wife treated him with cruelty and, therefore, he sought divorce on the ground of cruelty as well as desertion by filing the petition on or about 25/4/2003. 3. The wife filed her Written Statement at Exhibit 36 and opposed the petition while denying all the allegations made against her. On the other hand, she stated that she was beaten on 20/3/2001 and next day she called her sister and brother and was taken for medical treatment to her parents’ home. Though the petitioner attended the Satyanarayana Pooja held on 7/4/2001 in her mother’s house, he did not allow her to accompany him so as to cohabit with him. She also alleged that the petitioner’s younger brother’s marriage was scheduled on 25/2/2001 and on account of some religious restrictions her mother-in-law did not allow the marriage to be consummated. She stated that 3 the petitioner was taking benefit of his own faults and she was ready and willing to join him to cohabit at the matrimonial home. . The petitioner in support of his case examined himself as PW 1 and two more witnesses viz. Mrs. Sarika Salvi, PW 2 - petitioner’s friend’s wife and Mr.Shashikant Kotawadekar, PW 3 who is the maternal uncle of the petitioner. In support of her case the respondent examined herself and Mrs.Jyoti Patkar - DW 2. 4. The petitioner claimed cruelty on the following grounds: (a) The wife was in the habit of staying aloof in the home and did not show any interest in the household matters; (b) She used to pick up quarrels on petty matters and used to harass him without any reason; (c) she used to refuse sexual relations and was not interested in continuing the marriage; 4 (d) she was interested in enjoying free life but not interested in matrimonial obligations and used to visit her sister’s house frequently; (e) she wanted to stay separately along with her husband near her parents’ home at Roha and when declined to do so by the husband, she abused and insulted him. 5. We have gone through the oral depositions of the petitioner - husband and more particularly his cross-examination. He admitted that he could not give the instances about the quarrel between him and wife on flimsy grounds and he also did not mention the instances of harassment to him by the wife. He stated that as the wife did not live with him properly he wanted divorce from her. He further stated that as she was teasing him, he was avoiding sexual relations with her. He candidly admitted in his cross-examination as under : "...Till 21/3/2001 I had not kept sexual relations with the respondent. Abnormal and 5 whimsical behaviour means the respondent told me that I had not seen her third body. Except this reason, there is no other reason for taking divorce from the respondent. Matrimonial obligation means I did not find the respondent as ideal wife. I wanted the wife who should support me in matrimonial life. ... I and my wife had gone to her sister’s house twice and it is correct that the respondent was not visiting the house of her sister frequently as alleged by me. It is correct that the respondent was not visiting the house of parents frequently and after marriage the respondent had gone at the place of her parents only once. It is correct that our matrimonial life was only for about one month and nine days. ... On 19/3/2001 usual quarrel taken place between us and there was no special reason for quarrel... It is correct that I have not mentioned in my affidavit about the incident dated 20/3/2001 by which quarrel arose." 6. In her evidence the wife stated that on or about 25/2/2001 the wedding of the petitioner’s 6 younger brother was to take place and he had performed "Punyavachan" along with the petitioner and for the same she as required to keep fast for the whole day. As a result thereof and on account of heavy workload she became unconscious and was required to be admitted in the hospital. The mother-in-law did not allow her to sleep in the same room in which her husband was sleeping until the brother’s marriage was performed on 25/2/2001. The mother-in-law had given her instructions not to have sexual relations with the husband to maintain the sanctity of "Punyavachan" ceremony. In her examination-in-chief she admitted that for the first time they had physical relations after about 15 days of her marriage and during the said first night the petitioner had told her that he was in love with another girl but she refused to marry. She also claimed that the husband told her that he would bring the said girl with whom he had an affair, in the house. It was under these circumstances that she told the husband that she would show her true colour if such an eventuality did happen. She further pointed out that on 21/3/2001 she was asked to go along with her mother and for medical treatment. The husband attended the Satyanarayana pooja held in her mother’s house on 7/4/2001 but did 7 not allow her to accompany him to the matrimonial home and did not, despite telephonic messages, take any further steps except sending the legal notice dated 26/12/2002. Mrs.Jyoti Patkar, DW 2 in her examination-in-chief stated that the respondent had approached her through one Meghna Oak and the respondent complained that she was beaten by her husband and gave a statement in writing to this effect. The witness, therefore, contacted the petitioner on phone and he met her in the office of "Parivartan Mahila Sanstha" along with another lady who was his sister. The witness further stated that he had agreed before her that he had beaten the respondent on account of some quarrel he had with her. In her cross-examination these statements could not be impeached and all that was brought out was that the witness did not remember the exact date when the petitioner visited the said Sanstha. 7. The depositions of other two witnesses examined by the petitioner i.e. PW 2 and PW 3 have been rightly discarded by the Family Court. On appreciation of evidence the Family Court recorded the findings that the husband could not prove his case of desertion as well as of cruelty. We do not find any 8 error in the said findings and in fact having regard to the depositions as noted hereinabove, it is clear that the husband was trying to take benefit of his own faults and misdeeds so as to seek a divorce from the respondent. We are satisfied that the findings recorded by the Family Court are well supported by the evidence placed on record and they do not call for any reconsideration in this appeal. 8. Hence this appeal must fail at the threshold and the same is hereby dismissed. (D.G.KARNIK,J.) (B.H.MARLAPALLE,J.)