1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 109 OF 2007 Latesh Subhash Kadam of Mumbai, Hindu, Indian Inhabitant, residing at Asgar Manzil, Room No.21, Jerbai Wadia Road, Bhoiwada Naka, Parel, Mumbai-400 012. .. Appellant Vs Neesha Latesh Kadam of Mumbai, Hindu, Indan Inhabitant, residing at 165/8/16, Shahu Nagar, Anr.Renuka Mandir, Godoli, Satara City, Dist-Satara. .. Respondent Smt A. R. Lambey i/b Smt A. S. Khushrushahi, Advocate for the appellant. Shri Dilip Bodake, Advocate for the respondent. CORAM : D.B.BHOSALE AND R.Y.GANOO,JJ. DATE : 25/01/2010. ORAL JUDGMENT : (Per D.B.BHOSALE,J.) 1. The appellant-husband has filed this Family Court Appeal T 2 against the Judgment and order dated 11.5.2007 passed by the Family Court in Petition No. A-892 of 2002, whereby this petition seeking divorce on the ground of cruelty, as provided for under section 13(1)(i-a) of the Hindu Marriage Act,1955 (for short, “the Act”) has been dismissed. 2. The matrimonial alliance was entered into between the appellant-husband and the respondent-wife as per Hindu rites and rituals at Satara, District-Satara on 13.3.2000. Parties have no issue from the said wedlock. The appellant and his family, though hail from district-Satara, are residents of Mumbai. The appellant, at the relevant time, was working in Mumbai. After their marriage at Satara, they came to Mumbai on 20.3.2000. It is the case of the appellant that since solemnization of the marriage, the attitude, conduct and behaviour of the respondent-wife towards him as well as his family members was rude, adamant and annoying. Right from the day of the marriage, according to the appellant, the respondent was arrogant and rude with him as well as with his family members and she started taunting him over his educational qualification. The respondent is an M.A., whereas the appellant is only a Diploma Holder. All these allegations have been denied by the respondent. According to the respondent, right from beginning, 3 she started doing all household work like sweeping, cleaning utensils, cooking, washing cloths of the entire family etc. She tried to keep every one in the family happy and satisfied. She had good relationship with the appellant, however, at the instance of his parents, he started behaving indifferent right from the beginning. There is no dispute that the marriage was consummated. It appears that in view of the peculiar nature of job, which the appellant was doing at the relevant time, frequently he used to go abroad and also in and around India as a part of his job. After their marriage, the respondent left the matrimonial home last some time between April and July, 2002. From the date of marriage till she last left the matrimonial home, according to the respondent, they both stayed together for hardly seven months. The respondent-wife claims that she never refused to perform her matrimonial obligations or even had shown her intention to deprive the appellant of conjugal rights. 3. It is against this backdrop, the appellant instituted the petition for divorce on the ground of cruelty. Apart from her day-to-day arrogant and rude behaviour, the appellant has relied upon the following instances, as alleged in the pleadings and the evidence: Firstly, it is contended that because of the 4 respondent’s typical behaviour, both the families had to hold meeting on 4.10.2000 to sort out the differences between the two. Next it is alleged that on 12.5.2000 the respondent held the appellant’s collar and threatened him that if he did not stay with her properly, she would cause harm to him and his family members. Thereafter, on 7.1.2001, it is alleged that the respondent’s cousin -Ravi, when brought her to Mumbai from Satara, threatened the appellant stating that he had handled plenty of such family disputes in his own way and looking to the appellant’s good nature he was keeping quite. Lastly, it is alleged that on 1.1.2002 the respondent and her cousin Ravi brought about fifteen persons to the appellant’s house in Mumbai and threatened him stating that he had not married the respondent only for getting house-hold work done. Apart from these four incidents, the learned counsel for the appellant also made reference to the case/complaint filed by the respondent against the appellant under the Protection of Women from Domestic Violence Act, 2005, which, according to the appellant, caused mental cruelty to him and his family members. A reference to the calls allegedly made by the Medha Police Station to the appellant and his father was also made to contend that the calls were made by the police at the instant of the respondent, which made him and his family to suffer mental 5 trauma. In the backdrop of these facts, the petition was filed by the appellant-husband on 20.1.2004. 4. We have heard learned counsel for the parties and, with their assistance, perused the entire material/evidence on record. Ms Lambey, learned counsel for the appellant after taking us through the pleadings and the evidence, submitted that right from beginning the attitude, conduct and behaviour of the respondent towards the appellant as well as his family members was arrogant, rude and non cooperative, which caused harassment and cruelty not only to the appellant but even to his family members. She further submitted that the attitude of the respondent-wife towards her in-laws was also arrogant and humiliating. She invited our attention to several instances cited by the appellant and his father in their evidence in respect of her conduct and behaviour which, according to the appellant, were in the nature of mental cruelty. It was also urged that all throughout the respondent was conscious and mindful of her education and she used to taunt the appellant and other members of the family. She submitted that cumulative effect of the facts and circumstances emerging from the evidence on record, are sufficient to draw a fair inference that the respondent undoubtedly caused cruelty and 6 harassment to the appellant and his family members. Her rude and arrogant conduct made it impossible for the appellant to live with the respondent. In other words, the situation was such that the respondent-wife cannot reasonably be asked to put up with such conduct and continue to live with the appellant. She submitted that frequent rudeness of language and neglect made the married life of the appellant absolutely intolerable. She then submitted that absence of intention should not make any difference in the case and it is not necessary element in cruelty. Learned counsel for the appellant in support of her contentions, placed reliance upon the following judgments: Rishikesh Sharma Vs. Saroj Sharma, (2007) 2 Supreme Court Cases 263; Suman Kapur Vs Sudhir Kapur, 2009 (1) SCC 422; Shoba Rani V Madhukar Reddi, (1998) SCC 105. Reliance was also placed on some judgments to contend that the marriage between the appellant and the respondent has broken irretrievably and, therefore, on that ground also a decree of divorce deserves to be passed in the present case. 5. On the other hand, Mr Bodake, learned counsel for the respondent-wife, submitted that even if it is assumed that whatever has been stated by the appellant-husband and his father in their testimonies is true, none of the incidents narrated 7 by them is more than ordinary wear and tear of married life. He then submitted that none of the incidents has been proved by the appellant by leading cogent evidence. Mr Bodake then submitted that right from inception, the attitude of the appellant towards the respondent-wife was indifferent for the reasons known to him. Within less than eight days from the date of marriage he started talking about divorce. That itself is an indication that whatever incidents he has narrated in his deposition are false and imaginary. There was no reason for the respondent-wife to behave in the manner as stated by him and his father right from the second day of marriage. As a matter of fact, from her conduct it is clear that she was and is eager to lead happy married life with the appellant. He then submitted that in any case it cannot be stated that it is impossible for the appellant to live with the respondent. He then invited our attention to the judgment of the Supreme Court in Vishnu Dutt Sharma Vs Manju Sharma in Civil Appeal No.1330 of 2009 (Arising out of SLP (C) 13166 of 2007) decided on 27.2.2009, to contend that this court has no jurisdiction to pass decree on the ground of irretrievable break down of marriage or that it is a dead marriage. He also placed reliance upon the judgments of the Supreme Court in V. .Bhagat V. D.Bhagat, 1994 AIR SCW 45 and Naveen Kohli Vs Neelu Kohli, 2006 8 AIR SCW 1550. 6. The appellant-husband, in support of his case, examined himself and his father – Subhash Laxman Kadam. On the other hand, the respondent-wife examined herself. We have perused the depositions of all the witnesses so also the pleadings and other documents on record with the assistance of learned counsel for the parties. 7. The first incident relied upon by the appellant in order to prove cruelty is dated 4.10.2000. On this date, according to the appellant, a meeting was held at Satara to sort out the alleged differences between the appellant and the respondent. This meeting is relied upon by the appellant in order to contend that till 4.10.2000, there were several unpleasant incidents, which forced both the families to meet for sorting out the alleged differences between the two. 8. The appellant, in his deposition, stated that right from beginning, the respondent was arrogant and rude with him and his family members. The marriage was solemnised on 13.3.2000. On 15.3.2000, after Satyanrayan puja, the respondent was required to clean utensils with other members of the family, 9 when she allegedly complained to the appellant that her hands had become black. She was reluctant to join other members of the family in cleaning the house, since she did not like to do such type of work. Even at the time of puja, according to the appellant, the respondent got annoyed with his sister when she made her wear the neckless. The appellant further stated that on 16.3.2000, when they were going for Dev Darshan, the respondent pressurised him to drive the car though his eye- sight was weak. While on their way to the temple, she, according to the appellant, sat next to him and put her hand on his thigh which he did not like. Thereafter, he stated that a girl from his neighbourhood, who used to visit their house frequently, passed comment that the respondent was careless, and on that the respondent got annoyed and reacted stating that she was M.A and she (the girl) need not teach her. When the appellant tried to pacify the respondent, she allegedly insulted and ridiculed the said girl. 9. In the cross-examination, the appellant admitted that the girl from his neighbourhood-Pinki did not have authority to make such comment, but he further added that he did not find anything objectionable in the comment made by her. The respondent in her evidence denied these incidents totally. She 10 specifically stated that the incidents, as narrated by the appellant, are false. Even if all the incidents, allegedly occurred before the couple came to Mumbai on 20.3.2000, are assumed to be true, we do not find them of such a character and gravity so as to say that it would be impossible for them to live together without mental agony or torture. In our opinion, no wife/daughter-in-law within less than eight days from her marriage, would behave in such manner and even if it is assumed that she did behave in this manner, as stated by the appellant, it was nothing but ordinary wear and tear of married life and no importance can be attached to such incidents for granting divorce on the ground of cruelty. 10. Thereafter, on 20.3.2000 they all came to Mumbai. In Mumbai, there was again Satyanarayan puja on 23.3.2000. On this occasion, the respondent allegedly insulted his friends. The respondent-wife specifically denied the incident and stated that in fact she had free interaction with the appellant’s friends on the issue of girls from villages. On 25.3.2000 there was a wedding reception. It is alleged that on this occasion also when the appellant requested the respondent to get ready soon, she arrogantly replied stating “don’t you see that I am getting ready”. According to the appellant, he was insulted by the 11 respondent in the presence of his relatives. This incident was also denied by the respondent. He quoted one more incident stating that the respondent took water pot used in WC and mixed up the same with other utensils. 11. Thereafter, the appellant and the respondent went to Mahabaleshwar on 5.4.2000 for honeymoon where, according to the appellant, the respondent ridiculed him by comparing with other couples. He further stated that the respondent’s behaviour at Mahabaleshwar disturbed him a lot and, therefore, he was reluctant to have sex with her. According to the appellant, the respondent, however, forced him to have sex against his wish. The appellant further stated that the respondent did not have any love and affection for him. As a matter of fact, we find this behaviour of the appellant not only strange but unnatural. We are at loss to understand as to how one could behave in this manner on honeymoon tour. 12. Insofar as the allegation that the respondent ridiculed the appellant by comparing them with other couples at Mahabaleshwar is concerned, the respondent denied it in her evidence. According to the respondent, as stated by her in examination-in-chief, at Mahabaleshwar the appellant asked her 12 for divorce stating that he wanted a wife, who knew English and who could operate computer. In the cross-examination, the appellant admitted that the respondent told him that there was no cause for divorce and he should not speak about divorce. As a matter of fact, it has come in the evidence of the appellant so also in the evidence of the respondent that after they returned from Mahabaleshwar, the respondent joined classes to learn English and computer, and she was regularly attending the classes. In fact, after the appellant left for South Africa some time in May, 2000, the mother of the appellant stopped her from attending the classes. The suggestion to that effect, though was denied by the appellant in his evidence, the fact remains that the respondent, as desired by the appellant, was eager to learn English and Computer. 13. The appellant then quoted the incident allegedly occurred on 12.5.2000. On this date, the appellant was telling the respondent to maintain decorum and harmony in the house, when, it is alleged, that the respondent became violent and rushed to the appellant, held his collar and threatened him stating that if he did not live with her properly, see what would she do to him, his sister and other family members. She also allegedly threatened him stating that the people at her village 13 were very dangerous. This incident, according to the appellant, shook and shocked the appellant’s family. The respondent, however, stoutly denied this incident. It is against this backdrop, according to the appellant, the meeting dated 4.10.2000 was held at Satara. In the meeting also it is alleged that there were heated arguments between the respondent and her family members. According to the appellant, all throughout in the meeting, she was arrogant and rude and was not prepared to budge. 14. After the marriage, in May 2000, the appellant left for South Africa. In his absence, the respondent was sent to Satara in August, 2000 for Nagpanchami. There are no allegations of any nature whatsoever, against the respondent during the period between May, 2000 and August, 2000. After the appellant returned to India, it appears that the respondent was not even informed about his arrival. It is stated in the cross-examination that immediately after he returned to India, within a week he went to Satara on 8.10.2000. Similarly, the appellant’s father also, in his cross, stated that they went to Satara on 8.10.2000. The admission given by both, in their cross, creates doubt about the meeting dated 4.10.2000. The appellant further stated that he returned to Mumbai without the respondent. It appears that 14 he was completely ignorant about the telephone calls made during the period by the respondent’s father to his father. He was also ignorant about the efforts made by the respondent’s father to send the respondent back to Mumbai at the time of Diwali and even thereafter and that his father had told the respondent’s father that he should not bring her to Mumbai. He further stated that he was not aware whether the respondent ever expressed her desire to return with them to Mumbai. He, however, admitted that the respondent’s father brought her to Mumbai on 7.1.2001. Within few days thereafter, as stated in paragraph 32 of the cross, he again left the country once again and returned in July 2001, and then again he went abroad in August, 2001 and returned in December, 2001. 15. According to the respondent, after the appellant came back to India some time in October, 2000, she was not even informed about his arrival. She came to know about his arrival only when the appellant’s uncle informed her father on telephone that the appellant along with his parents was at Bamnoli in their uncle’s house and were coming to Satara, which they did on 8.10.2000. This evidence has not been challenged by the appellant in the cross-examination. This further creates doubts about the alleged meeting held on 15 4.10.2000 at Satara. As a matter of fact, the respondent was eager to go with the appellant and his parents to Mumbai but she was told to come to Mumbai after Diwali. Even after Diwali she could not and did not go to Mumbai. She stated that when she expressed her desire to come to Mumbai, the father of the appellant stated that “what do widows do when they loose their husbands”. The appellant and his father denied these utterances in their evidence. However, the fact remains that the father of the respondent had to take her to Mumbai on 7.1.2001. 16. This takes us to consider the next incident on which the learned counsel for the appellant heavily relied upon to contend that this incident not only frightened but terrified him and his family. The incident is dated 7.1.2001. The appellant as well as his father in their evidence stated that when the respondent was brought to Mumbai by her father and cousin Ravi, her cousin during the discussion stated that he had handled plenty of such family disputes in “different way”, however, looking to the appellant’s good nature, he was keeping quite. This threat, according to the appellant, disturbed and terrified the family. The respondent thereafter stayed with the appellant and his family for few months. The appellant in paragraph 11 has stated 16 that after she came on 7.1.2001, on the very next day, the respondent asked him to forget everything and have sex to have baby. After she came back till she again went back to Satara, there were no allegations against her. On the contrary the appellant stated that she returned to fulfill her obligations and duties as a wife. The subsequent conduct of the respondent so also the evidence, creates doubt about what the appellant stated regarding the alleged utterances of the respondent’s cousin Ravi. The respondent, however, denied all these allegations. According to the respondent, she came to Mumbai along with her father to lead happy married life. She did not state anything about her cousin Ravi and the alleged threats. Even if it is assumed that the incident of 1.7.2001 did occur in the manner, as stated by the appellant and his father, we do not find it as serious as to lead the appellant to seek divorce on the ground of cruelty. 17. The appellant has then relied upon the incident dated 1.1.2002. The appellant and his father, both, in their evidence stated that on 1.1.2002 the respondent’s father and brother brought about 15 persons to their house and there were heated arguments between them. It is alleged that the respondent's cousin Ravi threatened the appellant stating that he had not married the respondent for getting only the household work 17 done and that he would see as to how he would go abroad. He also allegedly abused and insulted the appellant. Thereafter, they all went back leaving the respondent with the appellant in Mumbai. Thereafter, she stayed with the appellant till April, 2002. According to the appellant, she left in April, 2002 last, whereas, according to the respondent, she was taken by the appellant’s father to Satara on 27.7.2002. Even if the date given by the appellant is taken to be true, there are no allegations of any nature whatsoever between January 2002 and July, 2002. 18. We have also perused the affidavit of the appellant’s father Subhash Kadam filed in lieu of examination-in-chief. His examination-in-chief is, by and large, consistent with the evidence of the appellant. He also narrated all those incidents, which were narrated by the appellant in his evidence. In the cross- examination, he admitted that some incidents, which were narrated by them, were not mentioned in the petition. He further admitted that the respondent used to cook in the house and was also doing work of sweeping, swabbing, dusting, going to the market etc and also used to get involved in all type of household work. He also admitted that when he had gone to Satara in 2000 after Diwali, the respondent had expressed her desire to come to Mumbai when he told her not to come with them. It was further 18 admitted in the cross examination that she came to Mumbai on 7.1.2001. However, he denied the suggestion that during the meeting in January 2002, when 15 persons including the respondent’s father and cousin had allegedly gone to their house, they told the respondent’s father to take the respondent back to Satara. He then stated that the respondent continued to stay with them till April, 2002. 19. The respondent denied not only the allegations but even the incidents quoted by the appellant and his father in their evidence, which allegedly occurred during her stay with them. It is her case that no such incidents, as testified by the appellant and his father, ever occurred. The evidence of these two witnesses, though to a large extent, seem to be consistent, the question is whether the alleged conduct of the respondent and the incidents quoted in the petition so also in their testimonies by these witnesses would constitute cruelty and they were to such an extent so as to grant divorce. Though, according to the learned counsel for the appellant, the aforementioned events were grave and weighty so as to come to the conclusion that the appellant cannot be reasonably expected to live with the respondent, she could not pinpoint a single incident which, according to her, was grave. Undoubtedly, she submitted that the incident dated 19 12.5.2000 was grave but, in our opinion, that incident has not been proved by the appellant. Apart from the fact that the said incident was unbelievable, neither the appellant nor his father made reference thereto any time thereafter including in the letters addressed to the Bhoiwada police station (Exhibits 22 and 23). 20. We have perused the letters (Exhibits 22 and 23) written by the appellant and his father to Bhoiwada police station. From the contents of the letters, it appears that the letters were given to the police station by way of abundant precaution and in order to obtain certificate from the police station that no complaint under section 498A had been filed against them by the respondent. It is true that the father in his letter dated 10.8.2002 made reference to the