IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 49 OF 2004 WITH FAMILY COURT APPEAL NO. 50 OF 2004 Mrs. Manisha Sandeep Gade .. .. Appellant V/s Sandeep Vinayak Gade .. .. Respondent Ms. Kiran Bhagalia with Ms. Lalita Panchakshari for the appellant. Mrs. Manjula Rao with Ms. Kokila Kalra for the respondent. CORAM : H.L. GOKHALE & SMT.V.K. TAHILRAMANI, JJ. RESERVED ON: 5TH AUGUST 2004 DECLARED ON: 1ST OCTOBER 2004 JUDGMENT: JUDGMENT: JUDGMENT: (Per H.L. Gokhale, J.) (Per H.L. Gokhale, J.) (Per H.L. Gokhale, J.) 1. These two appeals filed by a wife seek to challenge the common judgment and order dated 12th February 2004 passed by Family Court No.III at Pune in Petition No.A-827 of 2000 and Petition No.C-55 of 2002. Petition No.A-827 of 2000 was filed by the respondent husband seeking divorce on the ground of cruelty under section 13(1)(ia) of the Hindu Marriage Act, 1956. Petition No.C-55 of 2002 was filed by - 2 - the appellant wife seeking permanent maintenance under section 18 of the Hindu Adoptions and Maintenance Act, 1956. The impugned common judgment allowed the petition filed by the respondent husband seeking divorce and dismissed the petition filed by the appellant wife for maintenance. It is, therefore, that these two appeals are filed by the appellant wife arising out of the two proceedings. 2. The short facts leading to these appeals are as follows: . The appellant and the respondent were married as per the Hindu Vedic Rites on 19th December 1997. Soon thereafter, differences developed between the two and they are not living together from 25th August 1999, though it is the case of the appellant that she was driven out of the matrimonial home. There is no child from this marriage. The appellant wife has her own employment and it has come in evidence that her monthly salary was Rs.6,000/-, out of which take-home amount was Rs.5,300/-. The respondent husband was working as a teacher with a salary of Rs.3,000/- as per the salary slip, the take-home amount being Rs.2,940/-. It is the claim of the appellant wife that the respondent was also running the business of advertising and had additional income therefrom. - 3 - 3. The respondent husband raised various grounds to substantiate his case for cruelty. As enumerated by the learned Family Court Judge, there were in all six instances of cruelty, they being as follows:- (i) Refusal to do domestic work. (ii) Insulting and abusing. (iii) Insisting on having a separate residence. (iv) To visit the matrimonial home and not to return on a number of days every week. (v) Threatening and terrorising the husband and his parents. (vi) Not disclosing that she had some gaenacological problem prior to marriage and concealing her miscarriage which took place sometime in December 1998. The appellant wife denied these allegations, but over and above the denials, she made certain allegations of her own in para 5(K) and (L) of the written statement. In para 5(K), she mainly made three allegations; (i) the respondent behaved with her perversely and harassed her sexually; (ii) he would indulge in obscene talks with his girl friends on phone and in person and would behave immodestly with the girl friends to torture the appellant, (iii) he had illicit relationship with one Leena, wife of Vivek, and in fact he wanted to marry - 4 - her. In para 5(L), she made allegations against her father in law that his behaviour with her was improper and in that she alleged that (i) he would touch her unnecessarily and (ii) he would barge into the kitchen if she was changing her clothes. 4. The respondent examined himself and then led the evidence of a few supporting witnesses, including his mother. The appellant examined herself and a few supporting witnesses. The examination-in-chief was by way of filing affidavits on the basis of which the cross-examination was conducted. After recording this evidence, the learned Judge came to the conclusion that the appellant had failed to establish the six specific instances of cruelty. He, however, took the view that the allegations made by the appellant in her written statement were baseless and amounted to cruelty. The learned Judge noted that with respect to the allegations about relationship between the respondent and Leena, except the bare words in the affidavit of appellant, there is no other evidence on record. He commented that it was her duty to examine Vivek. Similarly with respect to the allegations against the father of the respondent, the learned Judge noted that the allegations were vague and she should have given some details about the same. He, therefore, allowed the petition filed by the respondent husband on the ground of cruelty and - 5 - granted the decree of divorce. Since he was granting the decree of divorce, he examined the question as to whether the appellant wife was entitled to permanent alimony under section 25 of the Hindu Marriage Act. Having however noted that the income of the appellant wife was more, he held that she was not entitled to permanent alimony. 5. As far as the other petition under section 18 of the Hindu Adoptions and Maintenance Act, 1956 is concerned, since the learned Judge was dissolving the marriage between the two, he took the view that the appellant wife could not claim relief under section 18 of the said Act since sub-section (1) of section 18 of that Act gives a right to a Hindu wife to maintenance, which right is available during the subsistence of the marriage. The said section also provides for the right of residence to a wife. However, that right would be available if the husband is guilty of cruelty. That apart, on the facts of the case, the learned Judge was of the view that the respondent husband did not have such capacity to provide any separate residence. He, therefore, dismissed the petition for maintenance filed by the appellant wife under the Hindu Adoption and Maintenance Act, 1956. 6. It is material to note that whereas the wife has - 6 - filed FCA No.49 of 2004 to challenge the order of divorce which is granted in view of her baseless allegations, the respondent husband has not filed any cross objection to the extent the learned Family Court held that the six instances of cruelty claimed by him were not established. Therefore, the question as to whether those items specifically pleaded by the respondent husband constituted cruelty or not no longer survives. The respondent husband not having challenged the finding on those six items, it will have to be held that he has accepted that he has failed to establish the allegations of cruelty on those grounds. We may as well add that the counsel for the respondent also did not press any of those instances in argument. 7. When these appeals came up for admission, on a query from the court, the counsel for the respondent informed the court that he had not remarried. That was in spite of the impugned order having been passed on 12th February 2004. A statement was made by his counsel on 8th July 2004 that he will not proceed to take any further steps to marry until further orders are passed in these appeals. Inasmuch as there was no possibility of the parties living together any more, an attempt to dissolve the marriage by consent was made, but that did not succeed. On 15th July 2004, the matter was adjourned to 22nd July 2004 making it clear that in the - 7 - event the parties do not arrive at any understanding, both the matters will be heard finally at the admission stage itself. The paper-book was filed by the parties which consisted of the copies of the entire record of the Trial Court. They were accordingly heard fully at the admission stage since the counsel for both the parties desired that the parties should know their fate at the earliest, particularly since both the appellant and the respondent are young. 8. As stated above, the question which arises for consideration is as to whether the learned Judge of the Family Court was right in granting divorce merely on the basis of the allegations made by the appellant wife in her written statement. In this connection, the further submission of the counsel for the appellant is that the least that was expected of the respondent was to amend his petition and the respondent ought to have raised the plea that he has suffered cruelty in view of the allegations made in the written statement. Thereafter specific evidence on that behalf should have been led before any such conclusion was arrived at. In the absence of any such plea being raised by amending the petition, the respondent should not have been allowed to argue the plea of cruelty merely on the basis of the allegations made in the written statement. Alternatively, it is submitted that in any case at the - 8 - highest it could be said that the appellant has failed to prove her allegations, but it does not mean that she has made false and baseless allegations and therefore the decree of divorce was not called for. As against that, the submission of the respondent is that the allegations are so wanton that they have to be only noticed to examine whether they will constitute cruelty or not. If that is so, the decree of divorce ought to follow inasmuch as section 13(1)(ia) of the Hindu Marriage Act, 1956 speaks of "treating the other party with cruelty". The phrase is wide enough and would cover a cruel treatment even subsequent to the filing of the petition by making baseless allegations in the written statement. That being so, there is no need to amend the petition and on the strength of such allegations themselves, the decree of divorce ought to follow. 9. Before we look into the submissions and the supporting authorities, it will be desirable to look into the specific averments in this behalf and the evidence led thereon. Now as far as para 5(K) and (L) of the written statement are concerned, para 5(K) contained three allegations; (i) the respondent behaved with the appellant perversely and harassed her sexually; (ii) he would indulge in obscene talks with girl friends and behaved immodestly with them to torture the appellant, and (iii) he had illicit relationship with - 9 - one Leena, wife of Vivek. Inasmuch the entire case of both the parties depends on these pleadings, it would be desirable to reproduce these two paragraphs in their entirety. Para 5(K) and (L) read as follows:- "(K) The Petitioner then started behaving perversely. He would not only harass the Respondent sexually but also would indulge to obscene talks with his girl friends on phone and in person. Once the Petitioner and the Respondent visited the Petitioner’s girl friend at Nasik, all of them went to a hotel. The Petitioner, in the presence of the Respondent, behaved immodestly with the girl friend so as to torture the Respondent. The Respondent then started getting anonymous phone calls at her office regarding Petitioner’s girl friend and his amorous behaviour. One Mrs.Leena was an acquaintance of the Respondent. Shri Vivek was Leena’s husband. Vivek asked the Respondent whether she knew about the adulterous conduct of the Petitioner. The same afternoon, about 2.30 p.m. the said Vivek came to the Respondent’s office and told the Respondent that the Petitioner was pastering his wife who had recently delivered a son. He further informed - 10 - the Respondent that the Petitioner was telling his wife that the Petitioner liked her and that wished to marry her. The Petitioner had also informed Vivek’s wife that the Petitioner wished to divorce the Respondent as he thought that the Respondent could not bear a child for him. The Respondent was stunned at this revelation. The said Vivek also threatened that if he came to know the Petitioner’s residence address, then he would beat him. The Respondent pleaded with him not to do so. The Respondent after going home talked to Petitioner’s parents about the same and called the Petitioner on pager. The Petitioner in front of his parents admitted that he had been visiting Mr.Vivek’s wife and that he had proposed marriage to Vivek’s wife. The Respondent in presence of the Petitioner and his parents gave a call to Mr. Vivek’s residence and talked to his wife. The said conversation was also heard by Petitioner’s father. Ultimately the Petitioner, his mother and the Respondent went to Mr.Vivek’s residence whereupon the Petitioner begged Mr.Vivek’s wife pardon. The Respondent was in a devastated state of mind and stayed with her parents for two days, however, at that point of time, she did not disclose the above mentioned fact to her parents as she - 11 - thought that they also would become worried. After staying with her parents for two days, the Respondent returned to her matrimonial home. The Petitioner then thought that the Respondent was helpless and was in no position to punish him for his misdeed and so he started taunting the Respondent that in spite of knowing his infatuation for other married women, the Respondent could not punish him any way. "(L) Since the beginning of the marriage, the Respondent used to notice that the behaviour of the Petitioner’s father with her was improper. The Petitioner’s father would touch the Respondent unnecessarily and would always barge into the kitchen if the Respondent was changing her clothes. The Respondent had made a complaint with the Petitioner about the Petitioner’s father behaviour. However, instead of talking to his father, the Petitioner chose to shout at the Respondent and tell her that she should be more careful whenever his father was present. The Petitioner’s father’s behaviour was also known to the Petitioner’s relatives who used to advise the Respondent to stay separately or at least to go to sleep at night at the separate residence." - 12 - 10. The respondent had filed the petition for divorce and, therefore, he started the evidence first. He filed an affidavit in lieu of examination-in-chief. In the second sub-para of para 18, he dealt with the allegations in para 5(K) though there is no specific reference to para 5(K) as such. The relevant statement when translated from Marathi reads as follows: "Besides, false allegations have been made against me. It is false to contend that I have girl friends and that I have harassed her (wife) by talking about them with her. Leena is (only) a friend of the respondent (husband). Nothing happened after going to Nasik." As far as the allegations against the father of the respondent are concerned, it is stated as follows in first part of para 18. "I am employed only in a school and therefore it is wrong to contend that I have a higher income. We had complete privacy in our house. We had a separate room. Therefore it is false to contend that she (wife) felt constraints over there or that my father used to peep when she was changing her clothes. My father has never entertained bad thoughts about her nor has he behaved in bad - 13 - manner with her. He was lying in his bed after his operation and therefore there was no substance in alleging that in that period his misbehaviour increased. Similarly, it is incorrect to say that my mother supported my father’s behaviour. Therefore, it is false to contend that in July 1999 when the respondent (wife) was alone in the house, she raised her voice and people gathered, etc." In para 19 of the affidavit, the respondent has stated further as follows: "The respondent (wife) had no difficulty in my house nor was anybody criticising her. Forget asking her to do any work, the respondent was never doing any work in the house. On the other hand, she used to behave in an obstinate manner and use to abuse. She used to call us as hutment people. The respondent has thus made false allegations against myself and my father and I do not admit them. She ought to prove them with evidence." In the entire cross-examination of the respondent husband, there are no questions put to him with respect to the allegations made in para 5(K) or 5(L). The - 14 - cross-examination is entirely on other aspects of cruelty. Thus, it appears that although the appellant made certain allegations against the respondent and his father in her written statement and although the respondent did deny them in his own way in his examination-in-chief, he has not been cross examined on those aspects. 11. The mother of the respondent Smt. Vasanti Gade was examined in support of the respondent. She also filed an affidavit in lieu of examination-in-chief. In para 7, she has denied the allegations against her husband. She has stated that the dirty allegations made by Manisha (appellant) have caused severe mental agony to Sandeep (respondent) and all of them. This para when translated from Marathi reads as follows:- "9. The allegations made by Manisha (appellant) against my husband are false. Nothing of the kind ever happened. Firstly, his health was not good. Manisha never cared to come and see him when he was in hospital nor did she serve him at home. Yet she has made dirty allegations because of which severe mental agony has been caused to Sandeep (respondent) and all of us. 10. ..... 11. .... The behaviour of Manisha has not only - 15 - caused physical and mental agony to Sandeep, but severe mental agony has been caused to our entire family....." As far as this evidence of the mother of the respondent is concerned, in her cross-examination no question has been asked to her with respect to the allegations made in para 5(K) or 5(L). She has not been cross-examined on the above deposition either. The other witnesses examined by the respondent were a neighbour Vishwanath Bhat, his uncle Pradeep Gade and one Dr.Karus Koyaji. They deposed with respect to the different aspects of cruelty pleaded by the respondent in his petition. Similarly as far as the appellant is concerned, she examined her mother Shailaja Bachate and the son of her mother’s sister (Satish Mokashi) on the allegations of cruelty made in the petition. As stated earlier, the finding given by the Family Court Judge on these aspects is against the respondent and he has not chosen to challenge the same. Hence these depositions are not being discussed. 12. As far as the appellant is concerned, she affirmed an affidavit in lieu of examination-in-chief which is identical to her written statement and in para (K) and (L) thereof, she repeated para 5(K) and (L) of her written statement verbatim and, therefore, the - 16 - statements in her affidavit are not reproduced hereafter to avoid unnecessary duplication. She has been cross-examined with respect to the statements in para (K) in para 11 of her cross-examination. In later part of para 11, the appellant has stated as follows:- "..... I and Petitioner Sandeep had gone to Nasik on two wheeler from Pune. It is correct that we had stayed for one day though there were houses of relatives of the Petitioner at Nasik. It is correct that I and Petitioner had gone to a photo studio of the classmate (girl) of Petitioner Sandeep. She had given lunch to us. It is not true to say that I have mentioned falsely that the Petitioner Sandeep misbehaved in the hotel in my presence. It is not true to say that I have mentioned falsely in the affidavit that the Petitioner was talking personally to his girl friends on phone etc. and therefore I was suffering from trouble. Leena was my friend. I introduced Leena to Petitioner Sandeep. It is not true to say that when the Petitioner Sandeep had gone at the house of Leena, I raised quarrel with him. It is not true to say that there was love marriage of Leena. It is correct that I myself, Petitioner and the mother of the Petitioner had gone at the house of Leena to - 17 - ascertain the intimacy between the Petitioner and Leena. It is not true to say at that time the family members of Leena got angered and assaulted me. It is not true to say that I made false allegations regarding the intimacy between the Petitioner and Leena." As far as the allegations against the father of the respondent are concerned, she has stated as follows in para 13 of her cross-examination:- "It is not true to say that I made false allegations against the father of Petitioner Sandeep in the affidavit. It is not true to say that I have mentioned falsely that the father of Petitioner was touching my body deliberately to give sight our place. It is not true to say that I have mentioned falsely in the affidavit that after the operation of the Petitioner, his behaviour was changed. It is not true to say that I have mentioned falsely in my affidavit that the misbehaviour of the father of the Petitioner was increased and I informed about it to my mother in law and my mother in law told her helplessness. It is also not true to say that I have also mentioned falsely in the affidavit that at Mumbai my father in law misbehaved and hence I - 18 - told them I would call the people and therefore I was saved. It is not true to say that I have stated falsely in the affidavit that I have mentioned to the Petitioner about the said incident and the Petitioner raised his voice against me. It is not true to say that I have mentioned falsely in the application that my parents tried to give understanding to the Petitioner and Petitioner assured my parents that he would give understanding to his mother. About the misbehaviour of the father of the Petitioner, I have stated to Petitioner Sandeep himself. It is not true to say that as I wanted to live separately, I made false allegations against Petitioner Sandeep." 13. When we analyse this evidence, the following position emerges:- (i) It is material to note that although the appellant had stated in para 5(K) of the written statement that Vivek, the husband of Leena (with whom the respondent was alleged to have illicit relationship) had threatened to beat the respondent, she did not lead his evidence in support of the allegations made by her. Thus, from what is noted above, although the respondent denied the allegations against his father and the allegations - 19 - against himself also, he has not been cross-examined at all on his deposition concerning either of the two allegations made by the appellant. (ii) The respondent’s mother also specifically denied in her affidavit the allegations made against his father and also stated that all those allegations caused severe mental agony to the respondent and his family. She has not been cross-examined at all on either of these aspects. (iii) It is only in her affidavit in lieu of examination-in-chief that the appellant has repeated whatever that is stated in the written statement. As noted above, in para 11 of her cross-examination, she has been cross-examined with respect to the alleged intimacy between the respondent and the earlier mentioned Leena. In para 13, she has been cross-examined with respect to the allegations made by her against the father of the respondent. Thus, whereas the appellant made serious allegations against the respondent and his father, she has not cross-examined the respondent or his mother on their statements concerning these allegations. She has not put her case to them in their cross examination to give them an opportunity to explain their position. On the other hand, she has been confronted on these allegations when she stepped