* 1 * FCA-136 & 137/2006 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 136 OF 2006 IN M.J. PETITION NO. A-844 OF 2003 W I T H FAMILY COURT APPEAL NO. 137 OF 2006 IN M.J. PETITION NO. A-1883 OF 2004 Shri. Ajay Dinkar Waghmare Aged about 29 years, Occ : Service R/o. C/o. Dinkar Natha Waghmare New Central Railway Colony MS/RB/1 Bldg No.119, Room No.9, Kurla (East), Mumbai-400 070 ........Appellant/Orig.Resp : VERSUS : Smt. Kanchan Ajay Waghmare Kanchan D/o. Spoan Hindu, Adult Aged about 22 years, Occ : Housewife residing at Mhada Colony, Group No.5, Chawl No.404/4670, Tagore Nagar Vikhroli (East), Mumbai- 400 083 .........Respondent/Orig.Petnr -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr. S.S. Patwardhan, Advocate for the appellant. Mr. Onkar Warange, Advocate for the respondent. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- CORAM : A.P. Deshpande, & Smt. R.P. SondurBaldota, J. * 2 * FCA-136 & 137/2006 Judgment Reserved on : 27th April, 2010. Judgment Pronounced on : 6th May, 2010. JUDGMENT : [ Per :- Smt. R.P. SondurBaldota, J] 1. This is a common judgment on the above two appeals filed by the appellant-husband. Appeal No. 136 of 2006 arises out of M.J. Petition No. A-844 of 2003 filed by the respondent-wife for restitution of conjugal rights. First Appeal No. 137 of 2006 arises out M.J. Petition No.A-1883 of 2004 filed by the appellant for divorce. By the common judgment and order dated 29th September, 2006 the Family Court, Mumbai dismissed the petition of the appellant for divorce and allowed the petition of the respondent for restitution of conjugal rights. The Family Court also granted maintenance at the rate of Rs.2,000/- per month for the respondent and at the rate of Rs.1,500/- for minor son, Tanmay. Being aggrieved by the said judgment and decree, the appellant has filed the above two appeals. 2. The appellant was married to the respondent on 15th May 2001. Son, Tanmay was born on 31st March, 2002. The parties resided together till 7th November, 2002 after which date the respondent started residing at her parental house. The respondent had sent advocate’s notice dated 29th March, 2003 asking for restitution of conjugal rights. The appellant sent his reply dated 8th April, 2003 which was rejoined by the respondent by the letter dated 19th April, * 3 * FCA-136 & 137/2006 2003. Thereafter, the appellant sent notice dated 25th April, 2003 calling upon the respondent to join him in the matrimonial home. The respondent filed her petition for restitution on 7th May, 2003. The appellant filed his written statement dated 7th November, 2003 and more than a year thereafter, his divorce petition on 23th November, 2004. Common evidence was led on both the petitions with parties examining themselves. The appellant, in addition, examined his father in support. The Family Court on appreciation of the evidence before it, found that the appellant has without reasonable cause, withdrawn from the respondent’s society and therefore she is entitled to a decree of restitution of conjugal rights. It also found that the appellant had failed to to prove that the respondent had treated him with cruelty or deserted him for a continuous period of 2 years immediately preceding the presentation of the petition. 3. The appellant, while assailing the common judgments, contends that the Family Court has not properly appreciated the evidence on record. It has overlooked the seriousness of the conduct of the respondent while holding that it was the appellant who had withdrawn from the society of the respondent without any reasonable cause. 4. A brief reference to the allegations made by the parties against each other in their respective proceedings is as follows :- M.J. PETITION NO. A-844 OF 2003 :- . After the marriage, the respondent started residing in the joint * 4 * FCA-136 & 137/2006 family of the appellant in New Railway Colony, Kurla (East), Mumbai. The respondent was compelled to do all the household work with no help from the other family members. She was neither permitted to visit her parents nor speak to them over telephone. Her father had suffered from severe fever in September, 2002 and was hospitalised but the respondent was not allowed to meet him at that time. In January, 2002, the respondent was sent to her parents house for delivery. The son Tanmay was born on 31st March, 2002 but the respondent and the son were not brought back to the matrimonial home until four months thereafter. On her return, there was a demand made by the appellant and his family members that she brings a sum of Rs.2,00,000/- from her parents for purchasing a Sumo Motor vehicle. When the parents failed to fulfill the demand, the respondent was sent back to her parental house after taking away her ornaments. 5. The appellant in his written statement denied all the allegations of ill-treatment made by the respondent. According to him, the discord between the two was because of the insistence on the part of the respondent that he should transfer the plot of land belonging to his father in her name. He also alleges that the respondent left the matrimonial house without his permission and despite persuasion from him and his family, refused to return. M.J. PETITON NO. A-1883 OF 2004 : 6. The appellant makes serious allegations against the respondent * 5 * FCA-136 & 137/2006 that she is an unchaste woman. By way of the instances, he alleges that on the next date after the marriage, he and his entire family had gone from Dadar to Gateway of India by TATA Sumo vehicle hired by his father, the respondent instead of paying attention to the appellant was continuously staring at the driver. The appellant felt extremely embarrassed with such behaviour. After the marriage, when the couple had gone to the appellant’s native place where they stayed for 8 days, the respondent was continuously talking about the marriage proposals received by her from well-to-do families. She also disclosed that she was interested in getting married to her maternal cousin, but the marriage could not materialise because the maternal cousin was younger to her. During their stay, the respondent was continuously passing comments on every man and was often looking at the men and giving them smile. When the appellant objected, she paid no heed. On 27th May 2001, both had gone to respondent’s parental home by an auto rickshaw. The respondent was again and again touching the rickshaw driver unnecessarily, which annoyed the rickshaw driver as well as the appellant. The respondent was to return to the matrimonial home within two days, but she stayed back for almost two months and returned only on 31st July 2001. On 28th May 2001, in the evening, the appellant had visited the respondent at her parental house and stayed there over night. On 1st June 2001, the respondent was admitted to Central Hospital for treatment for back pain and was discharged only * 6 * FCA-136 & 137/2006 after 10 days. Doctor at the hospital had advised the appellant against having physical relations with the respondent as the same would have aggravated her back problem. During the period of her stay at the parental house, when the appellant had visited the respondent, on one occasion, he had noticed that one Sanjay, neighbour of the respondent was sitting very close to her. On the appellant taking objection, the respondent replied that Sanjay was her foster brother. The appellant claims that his father-in-law had told him that he had burnt his first wife because she was having illicit relations with other persons and that the respondent and her mother were also of bad character, having illicit relations with many other persons. When the appellant enquired the respondent about this, she just ignored saying that her father was mad. After birth of son, Tanmay, the appellant regularly visited the respondent at her parental house. The father of the respondent would often pass a comment that the appellant should ascertain that Tanmay is his son. This used to shock the appellant. After the birth of Tanmay, whenever the parties had to consult Dr. Kharat, a child specialist, the respondent showed unnecessary extra interest in him spending long time in his consulting room. She also used to get calls from unnecessary persons and upon enquiry would tell the appellant that it was her foster brother. It is alleged that on 7th November 2002, the parents of the respondent, her brother, her maternal aunt, uncle, one Ramchandra Gaikwad and his three sons suddenly came to the * 7 * FCA-136 & 137/2006 appellant’s house and threatened him that it the respondent was not sent to her parents house, they would file complaint under Section 498- A Indian Penal Code and put them behind bar. The father of the appellant then lodged a complaint with Nehru Nagar Police Station., Kurla, which was recorded as N.C. No. 202 of 2002. 7. The respondent in her written statement specifically denied all the allegations of cruelty made against her and stated that she had never thought of any other man either before or after the marriage as alleged by the appellant. 8. We have heard the arguments advanced by both the counsel, perused the pleadings of the parties, the notes of evidence and the impugned judgment. The Family Court noted that the serious allegations of unchastity made by the appellant against the respondent found place neither in the reply to the Advocate’s notice sent by the appellant nor in the written statement filed by him to the petition for restitution of conjugal rights. The allegations had been made for the first time in the divorce petition, which was filed more than a year after the petition for restitution. Thus the appellant had not taken earliest opportunity to vent his grievances raised in the petition. The Family Court also noted that at paragraph-5 of the divorce petition, the appellant mentioned that the parents of the respondent were supposed to gift her gold jewelery as per their capacity, during the marriage but not gift a single item of gold jewelery. This complaint in the divorce * 8 * FCA-136 & 137/2006 petition supported the allegation made by the respondent that she was ill-treated by the appellant and his family for dowry. As regards the alleged conduct of the respondent of staring at the taxi driver on the way to Gateway of India and not responding to the appellant when he spoke to her the Family Court found that considering the place where the respondent was sitting in the taxi, if she was to respond to the appellant whenever he spoke to her, she had to turn her face towards the right side which was the side of the driver. Another appropriate observation made by the Family court was that with the other elderly persons on the backseat, the newly wedded wife is bound to have her own limitations to respond to the husband. Therefore, no importance could be attached to the incident alleged. As regards the incident involving Sanjay, the evidence of the appellant on the incident is found to be vague. He did not mention whether there were any other members of the family in the house at the relevant time. Also merely sitting near each other is not objectionable, per-se, because according to the respondent, Sanjay was her foster brother. The Family Court found that the appellant has a prejudicial approach about everything. Every insignificant incident is looked at by him with a suspicious eye. He went to the extent of doubting the paternity of son, Tanmay. The Family Court found the doubts absolutely baseless looking to the appellant’s own conduct. The appellant admitted to have had physical relations with the respondent when she was at her parents house. * 9 * FCA-136 & 137/2006 When the appellant and his family learnt about the pregnancy of the respondent, everybody, including the appellant were happy. During her pregnancy, when the respondent went to her parent’s house for delivery, the appellant carried fruits for her regularly. She had been sent to her parent’s house only after the performance of the “Oti Bharni” programme. Had the appellant any serious doubt about the paternity of the child, his conduct would have been entirely different. In our considered opinion, the Family Court is correct on every inference drawn by it as regards the allegations made by the parties. The inference is a logical inference supported by the evidence before the court. The Family Court has correctly dismissed the petition for divorce. It is also seen that there was no reason whatsoever for the appellant to withdraw from the society of the respondent. Therefore, the Family Court was right in granting the decree for restitution of conjugal rights to the respondent. We have also seen that the order as regards the grant of maintenance is supported by the evidence on record and the same does not require any interference. Hence, the appeals are dismissed. No order as to costs. [SMT. R.P. SONDURBALDOTA, J] [A.P. DESHPANDE, J]