: 1 : FCA-4-03-Judgement-F=.doc USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 4 OF 2003 RAMESH LAXMAN SONAWANE Age 40 years, Occ. Service R/at Kondhava Budruk, S.No.36/2, Arjun Building, Near Sunrise Co. Pune 48 .. Appellant v/s. MRS MEENAXI RAMESH SONAWANE Age 35 years, Occ. Household, R/at C/o. Haribhau Rambhau Jagtap (Guruji), Pimple Saudagar, (Kate Pimple) Aundh Camp, Tal. Haveli, Dist. Pune .. Respondent ......... Mr. R.V. Govilkar for the appellant Mr. S.M. Sabrad for the respondent ........ CORAM : A.M. KHANWILKAR & R.Y.GANOO, JJ. JUDGMENT RESERVED ON : 24th AUGUST, 2011 JUDGMENT PRONOUNCED ON : 14th OCTOBER, 2011 ORAL JUDGMENT : (Per R.Y. Ganoo, J) : 2 : FCA-4-03-Judgement-F=.doc 1. The appellant filed petition under Section 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as HMA) for divorce against the respondent in the District Court at Pune being Hindu Marriage Petition No.207 of 1998. The appellant shall hereinafter referred to as the husband. The respondent shall hereinafter referred to as the wife. The said petition was assigned to learned 6th Joint Civil Judge, Senior Division, Pune. Learned 6th Joint Civil Judge, Senior Division, Pune (hereinafter referred to as learned Trial Judge) conducted the trial and by Judgment and Decree dated 28th August, 2002 dismissed the said petition with costs. Being aggrieved by aforesaid Judgment and Decree dated 28th August, 2002, passed in Hindu Marriage Petition No.207 of 1998, the husband has filed this Family Court Appeal. 2. The marriage between the husband and the wife was solemnized on 12th February, 1987 as per Bauddha rites and rituals. Out of the aforesaid wedlock, the wife gave birth to a male child on 8th April, 1988 which was named as Paresh. Another male child was born on 9th January, 1990. The said son was named as Ritesh. The husband has filed this petition for divorce alleging therein that the wife had : 3 : FCA-4-03-Judgement-F=.doc treated the husband with cruelty. The grounds on which the petition for divorce is filed are as follows : (a) The wife was in the habit of picking up quarrels on trivial matters. (b)The wife was always suspicious about the behavior of the husband. Said wife used to level defamatory allegations against the husband that he used to be out of the house till late night as he had some affair with a woman. (c)The wife used to sell gold ornaments such as neckless, locket, earrings, golden rings and even Mangalsutra without permission of the husband and did not disclose to the husband as to what she did with that money. (d) The husband was required to pay to the milkman a sum of Rs. 2,000/- for the milk which was never purchased and when the wife was questioned about it, she did not give satisfactory reply and that the husband was humiliated. The husband claims that he realized that the wife was paying that money to her brother. (e) The wife did not shower love and affection towards the : 4 : FCA-4-03-Judgement-F=.doc children and the wife was not attending to the children and the entire responsibility of the children was on the husband and that the husband had to attend to household duties like a married girl. (f) The wife used to humiliate the husband before his friends and colleagues. (g) The wife had borrowed money from the sister of the husband falsely stating that amount was needed for scooter repairing of the husband. (h) It is also the case of the husband that in the month of May, 1997 the wife demanded monies from wife of brother of the husband and said wife of husband’s brother handed over ear rings to the wife as the wife had told that the monies are required for the medical treatment of elder son Paresh and that after borrowing monies, the wife sold those earrings and paid the amount to her brother. According to the husband when the husband questioned the wife about her behavior, wife herself told that she has paid the amount to her brother as he needed money. The husband felt embarrassed on account of the behavior of the wife. According to the husband, : 5 : FCA-4-03-Judgement-F=.doc the wife was of hot temperament and quarrelsome nature and that she would beat the husband even before the children, by giving fist blows to the husband. (i) According to the husband, on 16th February, 1998, wife demanded Rs.500/- from the husband and thereafter the wife quarreled with the husband and left for parental home on 17th February, 1998 and did not return thereafter. According to the husband, while leaving from the parental home, the wife did not bother to obtain his permission and she failed to take care of the children. (j) The husband claims that the wife gave threats to him that she would file complaint in the police to falsely implicate him and get arrested. (k)According to the husband, husband had a tenanted premises at Pimprigaon and that as he was staying at Kondhva (Bk) he had locked the said premises. According to the husband, while husband was at Delhi for his office work, in order to harass the husband, the wife surrendered the possession of the said premises to the landlord without the permission or consent or knowledge of the husband. : 6 : FCA-4-03-Judgement-F=.doc (l) The husband thereafter filed complainant with the Superintendent of Police through his advocate on 21st August, 1998., According to the husband, the wife had taken all the articles from the said house situated at Pimprigaon. 3. The divorce petition was served upon the wife. The wife filed written statement and she has denied each and every allegation which was levelled against her. So far as the allegation levelled against the wife stated in paragraph 2 of the petition regarding alleged affair with woman, the wife had not specifically denied the said allegation. The wife in paragraph 10 of her written statement had levelled allegation against the husband and stated that the husband is having relations with one lady by name Yamuna Genu Adalkar. The relevant portion of the said paragraph 10 is as follows : “Without prejudice to what has been stated above this respondent states and submits that the petitioner is having licentious in character and at the instance of a lady named Yamuna Genu Adalkar, had caused to the respondent unbearable ill-treatment and had ultimately : 7 : FCA-4-03-Judgement-F=.doc drive her out of this house threatening her to cause injury to her person if she returns. That the petitioner sent a notice that was replied by this respondent requesting the petitioner to take her back for co-habitation and be in the company of the petitioner and the children. It would thus be seen that the boot is in other leg”. 4. With the aforesaid contentions, the wife objected to the grant of decree of divorce and prayed that the petition be dismissed. The learned trial Judge considered the pleadings before him and framed issues at Exh. 37. They are as follows :-. “1. Is it proved that the respondent caused mental and physical cruelty to the petitioner ? 2. Is is proved that the respondent has deserted to the petitioner without any cause ? 3. Is the petitioner entitled to the relief claimed ? 4. What order and decree ?” 5. At the trial, the husband gave evidence as PW-1. No other witness was examined on behalf of the husband. The wife gave evidence as DW-1. Mr. Haribhau R. Jagtap, father of the wife, gave evidence in : 8 : FCA-4-03-Judgement-F=.doc support of the wife as DW-2. 6. The learned trial Judge came to the conclusion that the husband has failed to prove that the wife caused mental and physical cruelty to the husband. He also held that, the husband has failed to prove that the wife has deserted the husband without any cause. The learned trial Judge came to the conclusion that the husband is not entitled to reliefs claimed in the petition. The petition was, therefore, dismissed with no order as to costs. 7. The learned advocate Mr. Govilkar appearing on behalf of husband took us through the entire record and advanced submissions in support of the appeal so as to contend that the learned trial Judge committed an error in dismissing the petition. 8. According to learned advocate Mr. Govilkar, the testimony of the husband PW-1 should have been accepted so far as the allegations above mentioned at Sr. No. (a) to (k). He further submitted that though the husband had given cogent evidence in regard to the various ways in which the wife had treated him with cruelty the : 9 : FCA-4-03-Judgement-F=.doc learned trial Judge declined to accept it. He submitted that the learned trial Judge erred in dismissing the petition. 9. Insofar as the allegation at Sr. No. (b), the learned advocate Mr. Govilkar submitted that in the petition at para 2, a categorical averment was made that the wife used to pass defamatory allegations against the husband, that he was being out till late night as he had some affair with a woman. The learned advocate Mr. Govilkar has submitted that these allegations made by the wife were without any substance and had caused psychological trauma to the husband. He pointed out that these allegations levelled by the husband against the wife are not denied by the wife while filing the written statement. He took us through the written statement, where the wife had dealt with the allegations in paragraph No. 2 and he submitted that in the absence of appropriate and specific denials the Court should hold that the allegations levelled in paragraph No. 2 against the husband have gone unchallenged. He submitted that on this count, the case of the husband that the wife had treated the husband with cruelty is required to be accepted. The learned advocate Mr. Govilkar submitted that apart from failure : 10 : FCA-4-03-Judgement-F=.doc on part of the wife to specifically denying the allegations in paragraph No. 2 of the written statement, the wife had levelled allegations about relations of the husband with one lady by name Yamuna Adalkar. He pointed out that said allegations are found in para No. 10 of the written statement. Relevant portion of para 10 is quoted earlier. Learned advocate Mr. Govilkar submitted that the wife has not proved the allegations levelled against the husband as regards his ilicit relations with Yamuna Adalkar. 10. Learned advocate Mr. Govilkar drew our attention to para 3 of the examination-in-chief of the wife, DW-1 and submitted that wife’s evidence at para 3 clearly goes to show that wife had levelled allegations against the husband and has stated that the husband and Yamunabai were staying at Kondhava Budruk in a flat as if Yamuna was his wife of the husband. He further pointed out evidence of the wife in para 4 of her examination-in-chief where wife has stated that on the basis of information received from one Mr. Baburao, owner of the said flat, she came to know that the husband and Yamuna have purchased that and they are staying in the said flat. Learned advocate Mr. Govilkar further drew our attention to para 7 of the : 11 : FCA-4-03-Judgement-F=.doc examination-in-chief of wife where the wife has stated that the husband has claimed divorce so that he can marry with the said lady Yamuna. Learned advocate Mr. Govilkar thereafter took us through evidence of wife and in particular para 10 i.e. cross-examination conducted by the husband that of the wife. He pointed out that even in the cross-examination, the wife has reiterated her stand about the husband having relations with the lady of the different caste. Learned advocate Mr. Govilkar therefore submitted that the wife had levelled allegations against the husband about the ilicit relations with Yamuna and that she has not proved those allegations. 11. Learned advocate Mr. Govilkar had taken us through evidence of Haribhau R. Jagtap, DW-2, father of the wife. He pointed out that said Haribhau, DW-2 has also levelled allegations against the husband as regards husband staying with Yamuna. Learned advocate Mr. Govilkar submitted that the wife has not proved the said allegations. Learned advocate Mr. Govilkar therefore submitted that the husband is entitled to a decree of divorce. Learned advocate Mr. Govilkar submitted that learned trial Judge has not : 12 : FCA-4-03-Judgement-F=.doc considered this point in the proper perspective. Learned advocate Mr. Govilkar submitted that the observations of the learned trial Judge at para 10 to 12 of the impugned judgment are wrong in as much as the learned trial Judge failed to appreciate the submissions advanced by the husband as regards the allegations levelled by the wife that the husband is having illicit relations with said Yamuna. 12. So far as the allegations at point no. (K) (supra), Learned advocate Mr. Govilkar submitted that the husband had categorically stated in his evidence that he had gone to Delhi for his office work and when he returned to Pune, he noticed that a third person is occupying the premises and on enquiry with the landlord, he was informed that the wife has given possession of the said premises to the landlord. Learned advocate Mr. Govilkar submitted that the fact that the premises were surrendered by the wife was accepted by the landlord, and therefore the Court should have accepted the stand of the husband that on account of surrender of the premises at Pimpri Gaon by the wife without knowledge and consent of the husband, the husband was deprived of the said premises for no reason particularly when he wanted to retain the premises. Learned : 13 : FCA-4-03-Judgement-F=.doc advocate Mr. Govilkar submitted the case of the husband that the wife had surrendered the premises to the landlord directly should have been accepted. Learned advocate Mr. Govilkar submitted that the very act of the wife to surrender the said premises to the landlord should have been accepted by the learned trial Judge as an act which constituted cruelty to the husband. Learned advocate Mr. Govilkar submitted that view taken by the learned trial Judge on the basis of text of Exh.52 i.e. a letter addressed to the Superintendent of Police is not correct. Learned advocate Mr. Govilkar had therefore submitted that this Court should hold that on account of surrender of the premises at Pimprigaon by the wife, the husband had suffered cruelty and that he is entitled for divorce. 13. So far as the ground of desertion is concerned, the learned advocate Mr. Govilkar submitted that the view taken by the learned trial Judge that the husband has failed to prove that the wife deserted the husband is incorrect. He took us through the notices at Exh.54 and 59. Learned advocate Mr. Govilkar had, therefore, submitted that considering the entire evidence on record and his submissions this Court should set aside Judgment dated 28th August, 2002 and : 14 : FCA-4-03-Judgement-F=.doc allow the appeal and the marriage between the husband and wife be dissolved as prayed for. 14. Learned advocate Mr. Sabrad appearing on behalf of the respondent wife submitted that so far as the grounds set out at Sr. No.(d), (g) and (h), the husband has not proved them. According to the learned advocate Mr. Sabrad, the husband ought to have examined appropriate persons in support of his stand that the wife had dealt with those persons and entered into some transaction. It was submitted that the husband ought to have examined (i) the milkman, to whom the husband was required to pay a sum of Rs. 2,000/- (ii) husband’s sister who is supposed to have advanced monies to his wife. (iii) husband’s brother’s wife who is said to have handed over ornaments to the wife. Learned advocate Mr. Sabrad submitted that as the husband did not examine aforesaid person the learned trial Judge rightly came to the conclusion that the husband is not entitled to divorce. Learned advocate Mr. Sabrad further submitted that even as regards other allegations mentioend in grounds at Sr. Nos. (a), (c), (e), (f), (i) and (j), the husband has not proved them by giving proper evidence. He submitted that the : 15 : FCA-4-03-Judgement-F=.doc learned trial Judge was right in declining the divorce on those grounds. 15. So far as the allegation against the wife that the wife had surrendered the premises at Pimprigaon to the landlord without the consent of the husband while the husband was at Delhi i.e. ground at Sr. No.(k) above. Learned advocate Mr. Sabrad submitted that the said allegations are not proved as the husband has not examined the landlord to place on record the circumstances under which the landlord got back the possession of the premises. He further submitted that the husband had filed a complaint with the Superintendent of Police and Commissioner of Police, Pune and in the said letter at Exh.52, the husband had stated that the landlord Shri. Vitthal N. Nanekar had forcibly taken possession of the said premises in the absence of the husband. He further submitted that in the said letter, the husband has stated that the landlord has taken possession of the premises by taking disadvantage of dispute between him and his wife. Learned advocate Mr. Sabrad, therefore, submitted that the husband did not approach the Police Officers with a positive case that the possession was surrendered by the wife : 16 : FCA-4-03-Judgement-F=.doc to the landlord. According to him, a proper appreciation of letter dated 21st August, 1992 at Exh.52 addressed to the Police would go to show that the husband approached the concerned Authorities with a case that the landlord dispossessed the husband while he was at Delhi. Learned advocate Mr. Sabrad, therefore, submitted that the ground taken by the husband that surrender of the premises by the wife to the landlord without husband’s consent is not made out and consequently there is no question of the husband getting a decree of divorce. He submitted that the learned trial Judge has declined to accept the stand of the husband on this aspect and has rightly dismissed the petition. 16. Insofar as the ground of desertion more particularly stated in para 8 of the petition, the learned advocate Mr. Sabrad submitted that according to the husband, the wife left the premises on 17th February, 1998 and did not return to matrimonial home. According to Mr. Sabrad learned advocate, in the petition the husband has not raised the ground that the wife deserted the husband. He submitted that the husband could not have been taken up the ground of desertion while filing this petition because : 17 : FCA-4-03-Judgement-F=.doc according to the husband, the wife left the house on 17th February, 1998 and the petition was filed in November, 1999. He, therefore, submitted that the minimum period of 2 years required to get divorce on the ground of desertion by the wife was not available. He submitted that despite this learned trial Judge framed an issue at Sr. No.2. Learned advocate Mr. Sabrad states that the learned trial Judge has in para 26 dealt with the aspect of desertion. Our attention was drawn to the para 26. He submitted that two letters were sent by the husband to the wife being letters at Exh.54 and Exh.59. He pointed out that the husband had specifically stated in those letters that he is not inclined to continue matrimonial life with the wife and that it would be better if a divorce by mutual consent is obtained. According to Mr. Sabrad, if this was the stand of the husband, surely, there is no question of the husband seeking a divorce on the ground of desertion. He submitted that in any case, the learned Judge has answered the issue as regards desertion in the negative. He submitted that in paragraph 8 of the petition it is stated that the wife left the husband on 17th February, 1998 and that resulted in causing cruelty to him. Mr. Sabrad submitted that this allegation is not proved. : 18 : FCA-4-03-Judgement-F=.doc 17. With reference to the ground taken by the husband at Sr.No. (b) above that the wife used to allege that the husband is having illicit relations with Yamuna, learned advocate Mr. Sabrad had submitted that this stand is reflected in para 2 of the petition and that wife has suitably dealt with the said paragraph in the written statement at paragraph 3 and has denied the said allegations. Learned advocate Mr. Sabrad had therefore submitted that as the wife had denied the averments in para 2, it was necessary for the husband to prove the contents of para 2 to show that the said allegations constituted cruelty upon the husband. 18. Learned advocate Mr. Sabrad submitted that the evidence given by the husband on the question of husband having relations with a lady by name Yamuna if perused would go to show that the husband had admitted that he had relations with Yamuna. He further submitted that cross-examination of wife would go to show that the husband had in terms of admitted his relations with Yamuna. Learned advocate Mr. Sabrad submitted that the argument advanced by him as regards the evidence of the wife on the question of relations : 19 : FCA-4-03-Judgement-F=.doc between the husband and Yamuna are equally applicable as regards the evidence of Haribhau Jagtap, DW-2 i.e. father of Yamuna. According to learned advocate Mr. Sabrad, the wife has proved her case that the husband was having relations with Yamuna and, therefore, the stand of the husband that the wife inflicted cruelty upon the husband should not be accepted. Learned advocate Mr. Sabrad submitted that the learned trial Judge has rightly appreciated the evidence on the question of husband having relations with Yamuna and has rightly dismissed the petition. 19.On the basis of the submissions mentioned aforesaid, following points do arise for our determination. (a) Whether the appellant husband has proved that the respondent wife treated him with cruelty ? (b) If answer to point no.(i) is in the affirmative, whether the appellant husband is entitled to decree of divorce ? (c) What order ? Our answers to the above points are as under:- (a)In the affirmative. : 20 : FCA-4-03-Judgement-F=.doc (b) In view of answer to point no.1 in the affirmative, this point is answered in the affirmative. (c)As per the final order. 20. With the assistance of learned advocates on both sides, we have considered the entire record. The grounds on which the divorce was sought are set out in the earlier part of the judgment. The grounds can be divided into three parts. i. The first part consists of grounds where the husband claims that the wife did certain acts and those acts constituted cruelty. All those acts are mentioned in the earlier part of this judgment at item No.1 to (a) to (k) except item nos. (b) and (k). ii. The Second part consists ground at Sr.No.(K) above where the husbands claims that while the husband was at Delhi for his office work, the wife surrendered the possession of the premises at Pimprigaon, which were held by the husband as tenant to landlord while without consent of the husband. : 21 : FCA-4-03-Judgement-F=.doc iii. Part 3 consists of the ground taken by the husband at Sr. No. (b) that the wife had levelled allegations against the husband that the husband used to be out of the house till late night as he had some affair with a woman. The husband had also sought divorce as the wife alleged that husband had illicit relations with Yamuna. 21. It is noted that the husband alone has given evidence. He has not examined any other witness. So far as the wife is concerned, the wife has examined herself as DW-1 and her father Haribhau R. Jagtap, DW-2. 22. Firstly, it would be convenient to deal with the case appearing part