1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Family Court Appeal No.4 of 2004 Shri Sudhir S. Mayekar Appellant Vs. Mrs.Supriya Sudhir Mayekar Respondent With Family Court Appeal No.5 of 2004 Shri Sudhir S. Mayekar Appellant Vs. Mrs.Supriya Sudhir Mayekar & anr. Respondents Mr.A.V.Chatuphale for appellant. CORAM: B.H.MARLAPALLE & K.K.TATED,JJ. January 17, 2009. ORAL JUDGMENT (PER B.H.MARLAPALLE,J.) 1. Both these appeals filed by the appellant husband arise from a common judgment and order dated 5/8/2003 passed by the Family Court at Mumbai in M.J. Petition No.A-1597 of 1998 and Petition No.C-169 of 1998. The first petition was filed by the appellant - husband for seeking divorce on the grounds of cruelty and desertion i.e. Section 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955. The second petition was filed by the wife praying for maintenance for 2 herself and for her minor daughter. The first petition has been dismissed whereas the second petition has been partly allowed by directing the husband to pay a sum of Rs.5000/- per month towards maintenance for the wife and Rs.1000/- per month towards the maintenance to the daughter. In addition an amount of Rs.10,000/- was directed to be paid towards the costs of litigation. 2. The parties were married on 5/6/1995 at Mumbai as per the Hindu Vedic Rites and customs and the marriage was not registered. On 8/7/1996 the husband approached the Family Court with a petition for restoration of conjugal rights. On 13/8/1996 daughter Akshada was born. On 30/6/1997 Petition No.A-1288 of 1996 filed by the husband for restitution of conjugal rights came to be dismissed on the basis of the Consent Terms filed by the parties. As per the husband on 5/5/1998 the wife left the matrimonial home and did not return and, therefore, he approached the Family Court with a fresh petition i.e. Petition No.A-1597 of 1998 seeking divorce on the ground of cruelty. During the pendency of the said petition he amended and incorporated the additional ground of desertion. The wife claimed that she was forced to 3 leave her matrimonial home on account of assault, harassment and torture meted out to her by the husband and his family members and she had gone to the police station to file a complaint after she was driven out of the house. The wife, therefore, filed Petition No.C-169 of 1998 for maintenance and by filing her Written Statement in the husband’s petition she opposed his claim for divorce on the ground of cruelty as well as desertion. 3. Before the Family Court the husband examined himself and one more witness i.e. Sadanand Chavan. In support of her case the wife examined herself. The Family Court considered the averments of both the parties and framed separate issues in both the petitions, though some of the issues were overlapping. The issues framed and answered in the respective petitions are as under: M.J. M.J. M.J. Petition No.A-1597 of 1998 Petition No.A-1597 of 1998 Petition No.A-1597 of 1998 (1) Whether it is proved by the petitioner - husband that he was subjected to cruelty by the respondent wife? 4 Finding: No. (2) Whether it is proved by the petitioner - husband that for the benefit of minor, as a natural guardian, he is entitled for permanent custody of minor daughter Akshada? Finding: No. (3) Whether petitioner-husband is entitled for divorce on the ground of cruelty? Finding : No. (4) Whether it is proved by the petitioner that he was deserved by wife for a continuous period of more than two years, immediately preceding to the presentation of this petition? Finding : No (5) Whether husband is entitled for divorce on the ground of desertion? Finding: No. 5 Petition Petition Petition No.C-169 of 1998 No.C-169 of 1998 No.C-169 of 1998 (1) Does petitioner prove that the respondent has deserted her? Finding: Yes (2) Does petitioner prove that the respondent has treated her with cruelty? Finding: Yes (3) Is petitioner justified in residing separately from the respondent without forfeiting her claim of maintenance? Finding: Yes (4) Is petitioner entitled to claim maintenance from the respondent for herself as well as the minor daughter Akshada? If yes, what amount. Finding: Rs.5000/- per month for Supriya Mayekar, Rs.1000/- per month for Akshada Mayekar. 6 . The issue of desertion was common in both the petitions and the Family Court held that neither the petitioner - husband nor the respondent - wife could prove the allegation of desertion of each other. The Family Court did not find any merits in the allegations of cruelty as well, as alleged against each other. However, the Family Court held that the wife was justified in residing away from her husband and, therefore, she was entitled for maintenance and that the husband was not entitled for the custody of his daughter. 4. We have gone through the oral depositions of the husband, his witness Sadanand Chavan and the wife. This evidence recorded has been treated as common evidence in both the petitions. As noted earlier, the petition filed by the husband i.e. Petition No.1288 of 1996 for restitution of conjugal rights came to be dismissed on 30/6/1997 on the basis of the consent terms and the wife came back to cohabit with the husband. We are, therefore, required to examine whether there is any evidence in support of the husband’s case from 30/6/1997 regarding his allegations either of cruelty or desertion. In fact 7 when the husband approached the Family Court in the second round, there was no ground of desertion available. As far as cruelty is concerned, the husband has in his petition stated about the incidents that had taken place on 8th July 1997, 18th August 1997, 26th August 1997, 18th September 1997, 18th October 1997, 23rd October 1997, 4th December 1997, 23rd January 1998, 8th April 1998 and 15th April 1998 It appears that on 8th July and 18th August 1997 there was some squabble between the husband and wife in asmuchas she behaved with him in a rude manner and the reason was that she was not allowed to invite her parents to visit her matrimonial home. When she became aggressive, the husband replied that in the consent terms it was agreed accordingly. We have seen the consent terms filed before the Family Court in Petition No.1288 of 1996 and the stand taken by the husband is totally baseless. On 26th August 1997 the wife did not prepare a vegetable dish called "Bharli Wangi" as taught to the wife by her mother-in-law and, therefore, the mother-in-law questioned her. On this it appears that the wife started disputing and she declared that henceforth she would not prepare the said dish. The incident of 18th September 1997 is again in respect of her family members visiting her 8 matrimonial home. We have gone through the examination-in-chief as well as the cross-examination of the petitioner and all the subsequent incidents of 18th October 1997, 23rd October 1997, 4th December 1997, 23rd January 1998, 8th April 1998 and 15th April 1998 were minor incidents of some differences between the husband and wife and these are normal wear and tear in a married life. None of these incidents could be termed as incidents of cruelty or harassment. If the husband makes some remark seeing lips or the fingers of his daughter and the wife replied saying that she could poison and she could do anything as she was the mother would not be a ground for alleging cruelty against the wife. The Family Court rightly held that none of these incidents could be considered as a ground of cruelty meted out by the wife against the husband. 5. On the ground of desertion we are required to consider whether the husband approached the wife or any of her family members so as to persuade her to restore cohabitation by returning to the matrimonial home and in his cross-examination before the Family Court he was candid enough to admit that after 5/5/1998, of his own he never called on the wife for 9 cohabitation. The record also shows that the husband went to the extent of filing a criminal case impleading the wife as accused no.1 along with some co-accused who were third parties (Criminal Case No.35/5 of 1999 presently pending before the Metropolitan Magistrate’s 26th Court). He alleged that the wife had committed offences punishable under Section 500, 504 and 506(1) of IPC. 6. It was the case of the wife and as she presented before the Family Court that after the consent terms were filed, she came back to the husband’s house on 16/1/1997 and two months thereafter again she was being tortured and harassed by abusing and beating her. In the matrimonial home apart from her husband, admittedly the mother-in-law, two unmarried sisters-in-law and one brother-in-law were residing. She stated that on 5/5/1998 the husband’s younger brother by name Vijay started beating her and none of the family members intervened. She was forced to leave the house along with the daughter and went to the Kasturba Police Station to file a complaint (Exhibit 33). She specifically stated that the husband never made efforts to take her to the matrimonial home for cohabitation beyond sending a 10 legal notice at Exhibit 35. She further pointed out that the husband was working as an auditor with the Bombay Municipal Corporation on a monthly salary of Rs.15,000/-. She also pointed out the expenses required for the daughter’s education. The Family Court considered the income of the husband and directed to pay maintenance as noted hereinabove. We are satisfied that the maintenance amount fixed is not unreasonable more so when the wife has no income of her own. 7. In the premises, we do not find any error with the reasoning set out by the Family Court in the judgment impugned in both these appeals and hence the appeals must fail. They are dismissed with costs. (K.K.TATED,J.) (B.H.MARLAPALLE,J.)