:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.103 OF 2002 FAMILY COURT APPEAL NO.103 OF 2002 FAMILY COURT APPEAL NO.103 OF 2002 Mrs. Leela Krishna Kumar ... Appellant. (Org.respondent) Versus Pilapalli Madam Gopalkrishna Krishnakumar ... Respondent. (Org.Petitioner) Shri G.R. Hegde for appellant. Shri V.Ramkrishnan and Ms. Sunita Kalwar for respondt. CORAM: S.B.MHASE CORAM: S.B.MHASE CORAM: S.B.MHASE & S.R.SATHE,JJ. S.R.SATHE,JJ. S.R.SATHE,JJ. DATE : 13th July 2005. DATE : 13th July 2005. DATE : 13th July 2005. ORAL JUDGEMENT (PER S.B.MHASE,J): ORAL JUDGEMENT (PER S.B.MHASE,J): ORAL JUDGEMENT (PER S.B.MHASE,J): 1. This Appeal is directed against the judgement and decree passed by the Family Court No.2, Bandra on 31st August 2002 in Petition No. A-1291/1998. By the said judgment and decree the marriage solemnized between the Appellant and Respondent on 14th May 1992 was dissolved under section 13(1)(i-b) of the Hindu Marriage Act, 1955 and the Respondent has been directed to give maintenance at the rate of Rs.2000/- per month to Appellant-wife for the minor child Vidyalakshmi from the date of the Order till she (Vidyalaxmi) gets married. 2. The Marriage Petition under Section :2: 13 (1) (i-a) and 13(1)(i-b) of the Hindu Marriage Act 1955 was filed by the Respondent-husband as against the Appellant-wife. Two grounds were made out namely cruelty and desertion. Further there was prayer for granting access to the child. However, the said prayer is not granted by the trial court. The Family Court has refused to pass the decree on a ground of cruelty under section 13(1)(i-a) of the Hindu Marriage Act. It is averred in the Petition that the marriage between Appellant-wife and the Respondent/husband was solemnized on 14.5.1992 at Mumbai according to Hindu Vedic rites and ceremonies. Prior to the marriage both were spinster and bachelor respectively. The Respondent is in service with Bank of Baroda while the Appellant-wife is in service with the Western Railway at Churchgate as a ‘Typist’. After the marriage they resided at 3/36 Azad Nagar, Andheri (W),Bombay wherein, alongwith the Respondent his parents were staying. His parents are ‘Pensioners’ retired from the Government service. Thus, the Appellant, Respondent and the parents of Respondent are the members of the said family who were residing in the matrimonial house. Out of the wedlock, on 2nd :3: March 1993 Appellant and Respondent have got female child Vidyalakshmi. It is also averred that the office timing of the husband is 9.15 a.m. to 4.30 pm., while the office timing of Appellant-wife is 10.00 am. to 6.30 pm. It is the case of the Respondent-husband that since both the Appellant and Respondent were employed and that their office timings were as stated above, Respondent’s mother used to get up early in the morning and after her morning ablution, she used to keep the breakfast and tiffin boxes ready for the Appellant and Respondent. Similarly, she used to keep the dinner ready in the evening, so that the Appellant would not be put to any inconvenience after her return from office. It is further averred that even on the holidays and weekends Respondent’s mother used to do all the household work leaving only some Sunday work to be done at home by the Appellant. Respondent-husband further averred in the Petition that right from the beginning of the marriage Appellant was adopting non-cooperative attitude towards him and his aged parents. However, respondent over looked her conduct hoping for better days, by consoling himself with the fact that the Appellant is a working girl and that she :4: would in the course of time identify herself with his family. But it was a hope in vain. It is further averred that the entire household expenses was made by the Respondent-husband and Respondent never demanded anything from Appellant-wife. According to Respondent-husband, Appellant is getting Rs.5000/- to 6000/- as salary per month, but Appellant has not contributed anything for the maintenance in the house and has not disclosed to the Respondent as to how the amounts are used. The grievance of Respondent is that on being asked about the salary slip,the Appellant flatly refused to oblige him. Thereafter Respondent did not bother about her salary slip with the fear of unpleasantness in the house. It is further the case of the respondent that his parents and in laws had great admiration, love and affection for their daughter in law . Respondent’s father voluntarily opened bank account in the name of Appellant and also with the local Post Office and used to deposit periodically moneys for the benefit of their daughter-in-law. It is the case of the respondent-husband that in spite of love, affection and admiration shown by his parents , Appellant had never cared to respond them and on the contrary she :5: showed disrespectful behaviour towards them. He alleged that the Appellant was always adamant, dominating, abusive, indulging in indecent and filthy language towards his parents which was very much unbecoming of any daughter-in-law. According to the Respondent this was also ignored by his parents with the hope that in the course of time she would realise her mistakes. However, that was also in vain. It is further averred that after a child was born , there was no change in the attitude of the appellant towards the parents of Respondent. It is averred that the bathing of the infant was looked after by the mother of the Respondent and she used to take great care in bathing the child, feeding her, and devoting all her time in caring and maintaining the child. It is alleged that, however, Appellant never appreciated these sentiments of his mother and instead, the appellant continued with her non- cooperative, adamant and stubborn attitude towards him and his parents. On being pointed out the Respondent’s mother’s love and affection towards the child Vidyalakshmi, it is alleged that the Appellant flared up and retorted by stating that he might as well have married his mother or slept with :6: her instead of appellant. Then it is alleged that the appellant was very much money minded and materialistic. To support this, the incident of August 1993 was quoted by the Respondent. The child was used to be fed with milk in a milk bottle, Respondent’s mother was very much aware that it was necessary to keep the milk bottle spotless and hygienically clean to avoid any infection to the child, therefore, appellant was requested by the respondent to buy a milk cleaner which was available in a departmental store near Churchgate Railway Station where her office is situated. However, the Appellant completely ignored his request and returned home in the evening without purchasing the cleaning brush.When it was reminded to appellant, she retorted saying that neither the Respondent nor his mother had paid for the purchase of the milk bottle cleaner. It is alleged that though the Appellant had money with her, and the price of the bottle cleaner was about Rs.10 or 12, it was not spent. 3. It is further averred by the respondent-husband that in August 1994 the Appellant manhandled his mother without any reason. :7: Since the Respondent’s parents had in their mind welfare of the Appellant and Respondent, they provided them flat of 800 sq.ft. at Kalyan and suggested that the child should be left with them to be looked after. The suggestion was agreed to by the Respondent and Appellant. Accordingly in August 1994 both of them shifted to a flat at Kalyan leaving the minor child Vidyalakshi with the parents of Respondent at Andheri. It is further averred that at the instance of the Appellant, in December 1994 Appellant and Respondent returned to Andheri house. It is further the case of the Respondent/husband that on 27th January 1995 appellant left the home as usual in the guise of attending her office. On her return in the evening the Appellant started behaving in a very strange manner and refused to take any food even though it was kept ready. According to the Respondent, Appellant went on hunger strike. On being made queries it was learnt that the Appellant had not attended the office on that day. Because of this, it is averred that the Respondent got apprehension that the Appellant was making preparation to leave the matrimonial house. On 28th January 1995, Appellant, Respondent and the Respondent’s parents :8: were at home. Apprehending some trouble at the hands of the Appellant and her parents, the Respondent-husband lodged complaint on 28th January 1995 with C.I.D., Social Security Branch,Crawford Market, Mumbai. On 29th January 1995 at about 5.00 p.m. Respondent-husband was surprised to find that the father and brother of the appellant had come to the matrimonial house. By that time, the appellant had kept all her articles and belongings duly packed. Soon after her father and brother came the appellant collected her belongings and took the minor child with herself and left the house with father and brother, without so much as having the courtesy of even informing the Respondent and/or his aged parents. It gave clearest indication to Respondent-husband that the appellant-wife had formed in her mind the necessary animus to desert the matrimonial home permanently and to bring the marital tie to the breaking point. This was further clear from the fact that the appellant had deliberately left behind the wedding saree and the dresses of the child which the respondent had given. It is averred by the Respondent that attempt on the part of the Respondent and his parents to persuade the appellant not to leave the :9: home failed because Appellant was adamant and her father and brother also did not dissuade her from leaving the house. 4. It is the case of Respondent-husband that the father of Respondent had taken a locker in Dena Bank, Versova Branch and the ornaments of the appellant were lying in the said locker. On or about third week of March 1995 father of Appellant sent letter to respondent demanding the ornaments of Appellant-wife. Therefore, Respondent’s father took out the said ornaments from the locker and retained them in the matrimonial home. On 26th March 1995 the appellant visited Respondent’s house alongwith her sister Mrs. Sheela K.Nair, when the Respondent’s father handed over the ornaments to the Appellant. After checking the ornaments appellant signed a receipt duly witnessed by her sister and one family friend of the respondent by name M.L.Anantharaman. This also, according to respondent, is a fact which shows animus to desert the matrimonial home permanently and severe the marital relations. Thus, the respondent has claimed divorce on the ground of cruelty and desertion. :10: 5. The Appellant-wife has filed a written statement before the Family Court . She has denied all the allegations made by the Respondent-husband. It is pointed out that Andheri flat which was a matrimonial house is hardly of 400 sq.ft. with one room kitchen and after marriage of Appellant with Respondent, sister of Respondent also came to reside there till the Appellant went to her parents house for delivery. There was absolutely no privacy in the life of appellant and respondent. The Appellant-wife has pointed out that the working hours of appellant were from 9.15 a.m. to 5.45 pm and not from 10.00 am to 6.30 pm. She has denied that mother of Respondent was preparing the food and breakfast etc. She has clarified that the Appellant had to get up early in the morning and prepare breakfast for the family and tiffin for herself and her husband and used to attend the needs of the child before going to office. She has clarified that she was washing clothes, cleaning utensils and floor before going to work and that Appellant was not allowed to wash clothes, utensils, etc. inside the bathroom. The washing was required to be done by the appellant in :11: the compound. As a result of which appellant used to be late in the office. Appellant claimed that the lunch and dinner was cooked together and Appellant had to do cleaning work in the kitchen after she came from office in the evening. Appellant averred that she cooperated to the best of her ability in the matrimonial house. On the contrary, the in-laws were never satisfied and used to find faults with the appellant for anything and everything and, interfere in all the matters. The appellant has averred that she had to take permission from the parents of the respondent for everything, even for personal matters like taking bath in the evening after coming from the office or making tea for herself. The Appellant has accepted that she is a working girl but she has stated that her salary was only Rs.1750/- and not Rs.5000/- to 6000/- as alleged by the Respondent. The Appellant has averred that after marriage when she received the first salary on 31st May 1992, it was handed over to the respondent who in turn handed it over to his father. It was informed by the father of the respondent that a sum of Rs.1,000/- would be deducted from the salary every month as appellant’s contribution towards the household expenses and the :12: rest of the amount would be deposited in the joint account of Respondent and Appellant. Since then the Appellant had handed over her salary alongwith her salary slip to Respondent-husband and this practice continued till the Appellant was staying in the matrimonial house. The Appellant further averred that even her salary during the period of maternity leave had to be accounted to the respondent’s father by the appellant in the form of Fixed Deposit. Thus, the Appellant denied that the allegations that Appellant had not contributed anything for the maintenance of the household and did not disclose amount of salary. The Appellant-wife denied that the Respondent’s parents had admiration , love and affection for the appellant. According to the appellant, father of Respondent used to treat her with contempt and took every opportunity to scold and shower her with most filthy language unbecoming of an elderly person. The Appellant has averred that in spite of such tortures she respected her in-laws and silently suffered keeping the welfare of her child in mind. . So far as the incident of bathing her child is concerned, Appellant has averred that :13: she used to bathe the child from the time she (child) became three months old i.e., from the time appellant went to the matrimonial home after delivery. According to Appellant, respondent’s mother instructed the Appellant to bathe the baby, feed her and put her to sleep before appellant left for her office in the morning and she was expected to do all these things in addition to attending other household works such as washing of clothes , preparing breakfast and tiffin etc. The appellant has averred that there was a marked difference in the attitude of the in laws towards appellant on her return to matrimonial home after her delivery. Probably because the in laws did not want to have a girl baby in the house as a first child and they used to taunt Appellant and parents of appellant. . According to the Appellant, the instances of harassment by the in-laws increased after appellant returned to the matrimonial home after delivery. The Appellant has denied the contention of Respondent that after delivery there was change in the attitude of Appellant and explained that there was no such change in the attitude of appellant. However, it was so felt by :14: Respondent, may be because the Appellant was unable to attend all the household work in the manner as Appellant was doing before, as she has to devote considerable time to attend to the child. The appellant denied the allegations that Appellant had told Respondent that respondent should have married to his mother or slept with her. Instead Appellant contended that it is utterly false. According to appellant, if the Appellant found it impossible to live in peace in matrimonial, it is because of the parents of the Respondent and their indulgence in every silly matter which made life of Appellant-wife miserable in the matrimonial house. Respondents parents used to speak ill of the appellant and always used to say that the Appellant brought only ill luck to them and since Appellant was in their house they did not have any prosperity. The Appellant further averred that Respondent used to come two hours earlier from his duty than the Appellant and Respondent’s mother used to poison his mind with all sorts of false allegations in the result the respondent used to be ready to pick up quarrels with appellant and shower abuses, the moment Appellant enters the house. The Appellant has specifically stated that initially :15: during the bed time Respondent used to apologize to Appellant stating that Respondent was forced to misbehave with her at the instance of his parents. The Appellant claimed that, however, the respondent made it a habit of ill treating appellant on regular basis. The Appellant has stated that the parents of Respondent in their foul design to throw Appellant out, had been creating evidence by writing letters to the father of appellant making wild and baseless allegations against Appellant. However, parents of appellant never interfered with the appellant’s affairs. . The Appellant-wife has claimed in written statement that Respondent and his parents were miserely and money minded people and they did not allow her to extend the maternity leave and told her not to delay to join the duty because according to them money was most important for the family. The appellant explained about the incident of purchase of bottle cleaner stating that the entire salary of appellant was taken by Respondent-husband, and therefore, appellant had no money to buy a bottle cleaner and when Appellant asked some money from Respondent-husband same was :16: refused. Thus, the Appellant claims that if money was not available how she could purchase the bottle cleaner. . Coming to the incident of man handling mother of respondent, the Appellant contended that she never man handled the mother of Respondent. On the contrary she averred that, the mother as well as the father of Respondent on several occasions man-handled Appellant without any rhyme or reasons. In explaining the incidence of August 1994 which led the appellant and Respondent to shift to Kalyan, appellant has averred that it was a holiday being Saturday, at about 10.00 a.m. appellant went to have bath in the bathroom with clothes. Appellant was washing her clothes in the bathroom when the appellant’s mother-in-law came shouting to the bath room and banged the door. When appellant opened the door to find out what the matter was, her mother in law pulled her out of the bathroom and asked to go out in the compound to wash the clothes as appellant was not allowed to wash her clothes or utensils in the bath room. It is further averred that at this juncture father in law also asked the appellant to go out and wash the :17: clothes in compound, as has been instructed. Though appellant pleaded them that she can not go out as she was fully wet, her mother in law pulled her out of bathroom and started beating and pressing appellant against the wall. Appellant fearing for her life shouted for help and when the neighbours started looking out, the in laws closed the door and became quite for some time. However, when the respondent returned from the office at 2.30 pm his parents instigated him with all sorts of allegations against the appellant. The respondent then beat appellant severely alleging that appellant disobeyed his parents. The respondent refused to listen to the pleadings of appellant. Parents of respondent-husband also joined in beating. On hearing the cries of appellant, neighbours intervened and advised respondent to stay separately elsewhere since they had one flat in Kalyan. The in-laws then agreed to the said suggestion and therefore, appellant and respondent shifted to Kalyan flat which was empty with no household articles. All the household articles such as furniture, utensils and other fittings were purchased by appellant with the monies borrowed by her. However, the in-laws were :18: bent upon harassing appellant and as such they did not live with the parents of the respondent. 6. The appellant has further averred that appellant and respondent stayed in Kalyan flat only from mid August 1994 to first week of December 1994. Since it was informed by the parents of the respondent that in December 1994 they were going to native place and did not want their flat to be kept locked in their absence, the respondent should shift to Andheri Flat. The appellant readily agreed to the same with the hope that she would be able to stay with her child at Andheri flat. However, her in-laws took the child alongwith them when they went to Kerala and did not allow the child to be kept with appellant. The appellant-wife found a calculated move of the respondent and his parents to separate her child from her. The appellant contended that while she was residing in Kalyan she was not allowed to take her child during the week end or meet her during the working days. Appellant was also told not to have any contact with her parents and that she should not inform about shifting of her residence to her parents. In the first week of January 1995 :19: parents of respondent returned and asked appellant to go back to Kalyan. By that time appellant noticed that health of the child had deteriorated and that she was not being fed properly. Therefore, the appellant informed her in-laws that she would go back to Kalyan only if her child was sent with her or else she would stay where the child was. This was decided by the appellant keeping in view the interest and welfare of the child. However, this was not liked by the in-laws and they were infuriated and increased their cruel behaviour towards appellant. . Answering the incident of 29th January 1995 appellant has stated that on 27th January 1995, she was on leave and had been to the parents house to see her father who had returned from native place and she returned in the evening. Appellant did not eat anything after return as she had taken meals at her parent’s house and this was known to respondent. The appellant has denied that her behaviour was strange that evening after returning from the office. The appellant contended that on the contrary respondent and his parents abused and physically assaulted appellant for :20: meeting her parents. The appellant further averred that she had not made any preparation on her part to leave the matrimonial house. However, she noticed some hushed talk among the respondent and his parents and could smell something strange being planned by them as mother-in-law started packing her clothes in a suitcase. The appellant also noticed that one Anantharaman, a friend of her father-in-law who advises her in-laws in all family matters kept often coming in and going out of the house after giving some instructions secretly to her in-laws. The appellant has further averred that the police complaint was lodged by respondent was surprise to her and she learnt for the first time from this petitioner. This act of filing of complaint shows that there was guilty mind working behind this. At about 4.00 p.m. all clothes and belongins of appellant, except ornaments and sarees and dresses of the child given by the respondent, were packed by the respondent. On being enquired by the appellant, it was told to her that she should leave the house at the moment and her parents would be coming to take her. The appellant further averred that at 5.00 p.m . her father and brother came to matrimonial home and informed her :21: that they had come pursuant to the frequent telephonic