1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE FAMILY COURT APPEAL NO. 93 OF 2002 SANTOSH RAMCHANDRA KARANDE ) residing at A/101, Om Jayashri ) Gurukrupa Rly. Quarter Road No.3 Borivali (East) MUMBAI 400 066.) .. APPELLANT (Org. Petitioner) VERSUS PRIYA SANTOSH KARANDE ) residing at c/o Ratan Baliram ) Kamble, Punawali Chawl, R.No.25) Dharavi Road, Opp. Abhudaya Bank Mahim (E) MUMBAI 400 016 ) .. RESPONDENT (Org. respondent) Mr. L. P. Waingankar for the appellant Mr. Rajesh Kachare for respondent CORAM:SMT.RANJANA DESAI & SMT. R.P. SONDURBALDOTA, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 4TH JUNE, 2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 20th JUNE, 2008 JUDGMENT:-(Smt. Ranjana Desai, J.) . The appellant husband has challenged in this 2 appeal judgment and order dated 31/12/01 delivered by the VIIth Family Court, Mumbai, in Petition No. A-1312 1998. Respondent is the wife. Appellant is the original petitioner and respondent is the original respondent. For the sake of convenience, we shall refer to the parties as per their description in the trial court. 2. The petitioner and the respondent being Hindus, got married on 1/6/90 according to Hindu Vedic rites. After marriage they cohabited at Borivali, Mumbai. Their son Tanmay was born on 29/9/92. The petitioner is working in the Central Railway as a Fitter in Traction Motor of Electrical Department, Matunga workshop, Mumbai. He is educated upto H.S.C. and has done diploma course in I.T.I. The respondent is a commerce graduate. She knows typing. 3. The respondent filed Petition No. C-19 of 1998 for maintenance for herself and child Tanmay under Section 18(1) and 20 of the Hindu Adoption and Maintenance Act, contending that the petitioner had deserted her and her minor son without reasonable cause. In this petition she set out several acts of cruelty allegedly committed by the petitioner. 3 Thereafter the petitioner filed petition being Petition No. A-1312 of 1998 for a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 ("the said Act" for short). In short his case was that the respondent treated him with cruelty. The respondent filed a written statement and refuted the case of the petitioner. The petitioner filed Petition No. D-21 of 1998 seeking custody of Tanmay under Section 27 of the said Act and Section 6 of the Hindu Minority & Guardianship Act, 1956. All these three petitions were clubbed together. Evidence was recorded in Petition No. 1312 of 1998 and it was read in the other two petitions also. 4. By the impugned order, learned judge dismissed Petition No. A-1312 of 1998 filed by the petitioner for a decree of divorce on the ground of cruelty. He allowed Petition No. C-19 of 1998 filed by the respondent for maintenance for herself and her child Tanmay. He directed the petitioner to pay Rs.1,000/- per month to the respondent as maintenance and Rs.1500/- per month towards maintenance of child Tanmay. Learned Judge dismissed Petition No. D-21 of 1998 filed by the petitioner for custody of the minor child Tanmay. 4 Necessary order for access was, however, passed. 5. Being aggrieved by the dismissal of the petition for divorce, the petitioner has filed the present appeal. The petitioner had also filed appeal being Family Court Appeal No. 91 of 2002 challenging the order dismissing his petition for custody of Tanmay. Learned counsel for the petitioner made a statement that he does not wish to press Family Court Appeal No. 91 of 2002. Hence, we have disposed of the said appeal as not pressed on 3/6/08. Thus, we are only concerned with the order dismissing the petitioner’s petition for a decree of divorce on the ground of cruelty. 6. In support of his case the petitioner examined himself. He examined his neighbour Mangal Kulkarni, his sister-in-law Vandana Karande, his aunt Satyabhama Gaikwad, his friend Anil Nair and his mother Sudha Karande to lend support to his case. The respondent examined herself. She examined her sister’s husband Anil Agawane, her mother Ratan Kamble and Marima Rashid, the officer in-charge of the society for Human and Environmental Development, Dharavi. 5 7. In his evidence the petitioner gave several instances which according to him establish his case that cruelty was meted out to him by the respondent. The respondent in her evidence while refuting the petitioner’s case gave her version and cited instances of alleged cruel treatment given to her by the petitioner. At the appropriate time we shall refer to the evidence adduced by the petitioner and the respondent. 8. The case of the petitioner did not find favour with learned Judge of the Family Court. She came to a conclusion that the incidents of cruelty alleged by the petitioner could be described as normal wear and tear of matrimonial life. She came to a further conclusion that it is the petitioner who treated the respondent with cruelty. By the impugned order she dismissed the petition. 9. Mr. Waingankar, learned counsel for the petitioner has assailed the impugned judgment and order on several counts. He relied on the judgment of the Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, where the Supreme Court has explained what is mental cruelty within the meaning of Section 13(1)(ia) of the said Act. Drawing our 6 attention to the conclusions drawn by the Supreme Court, learned counsel contended that while judging whether a case of mental cruelty is made out or not, facts of each case will have to be evaluated. There can be no straitjacket formula. Learned counsel submitted that a sustained course of abusive humiliating treatment making the life of the spouse miserable amounts to mental cruelty. He submitted that the evidence led by the petitioner clearly establishes that the behaviour of the respondent had made the petitioner’s life miserable. He submitted that learned Judge was wrong in discarding the evidence led by the petitioner as the evidence of interested witnesses. He submitted that while evaluating the evidence learned Judge has applied different yardsticks to the evidence of the petitioner and the respondent and this has caused great prejudice to the petitioner. According to learned counsel, learned Judge erred in describing the incidents of cruelty cited by the petitioner as normal wear and tear of matrimonial life. He submitted that cumulative effect of all the acts of cruelty committed by the respondent will have to be taken into account and if the cumulative effect is considered it must be held that the petitioner has proved his case. 7 Learned counsel submitted that the evidence clearly establishes that the respondent is a short tempered person. She used to pick quarrels on trivial matters which made the petitioner’s life miserable. She harassed the petitioner because he could not spend money on expensive household articles. She did not want to stay with the petitioner’s parents. She was very abusive. Learned counsel pointed out that on one occasion she called the petitioner a dog and told him that he cannot manage his affairs. She tore his shirt and hit him. Learned counsel pointed out that due to her behaviour the petitioner’s father got heart attack. 10. Learned counsel further pointed out that on one occasion the respondent’s mother assaulted the petitioner. She hit his father with a chappal. He further pointed out that the respondent left the matrimonial house on 7/3/1997 on her own and she never returned. She dragged the petitioner and his family to police station. She got them arrested. Learned counsel submitted that the witnesses of the petitioner have corroborated the petitioner’s case. Learned counsel submitted that the petitioner has established that conduct of the respondent was such that it created reasonable apprehension in his mind 8 that it would be harmful to live with the respondent and, therefore, learned Judge should have dissolved the marriage by a decree of divorce on the ground of cruelty. He submitted that the impugned judgment is perverse and deserves to be set aside by this court. 11. Learned counsel for the respondent on the other hand submitted that no case for divorce on the ground of cruelty is made out by the petitioner. He submitted that on the contrary the respondent by her cogent evidence has established that the petitioner has driven her and the child out of the house, that he has treated her with extreme cruelty and has failed to maintain her and the child. He submitted that if the matrimonial tie is severed by this court the petitioner will succeed in his design. He submitted that in the interest of the child the respondent wants to go back to the petitioner. Learned counsel submitted that the impugned judgment and order merits no interference and the appeal be dismissed with costs. 12. At the outset, we must note that, we had called the petitioner as well as the respondent to 9 the court to find out whether compromise could be arrived at. We made efforts to settle the matter. However, our efforts failed and hence this judgment. 13. Before, we advert to the evidence of the parties, it is necessary to see how the concept of cruelty is discussed by the Supreme Court in Samar Ghosh’s case (supra). The Supreme Court referred to it’s judgment in N. G. Dastane (Dr.) v. S. Dastane, (1975) 2 SCC 326 where it has held that to find out whether there is mental cruelty or not, inquiry has to be conducted as to whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. The Supreme Court then referred to its judgment in V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 where it has again reiterated that mental cruelty can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. It is necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. The Supreme Court 10 clarified in this case that while arriving at such conclusion, regard must be had to the social status and educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances. 14. After referring to the relevant cases on the point, the Supreme Court laid down the broad parameters of mental cruelty. The Supreme Court inter alia concluded that if on consideration of complete matrimonial life of the parties it is seen that there is acute mental pain, agony and suffering which would not make it possible for the parties to live with each other that could amount to mental cruelty. Mental cruelty, noted the Supreme Court, is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of the other for a long time, may lead to mental cruelty. A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse, sustained unjustifiable conduct and behaviour of one spouse actually affecting the physical and mental health 11 of the other spouse may lead to mental cruelty but the acts complained of and the resultant danger or apprehension must be very grave, substantial and weighty. The Supreme Court further observed that to amount to cruelty the ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party. The Supreme Court further added that mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. 15. We shall examine the evidence adduced by the parties in the light of the above observations of the Supreme Court. 16. We shall now turn to the evidence of the petitioner. As we have already noted the marriage took place on 1/6/90. The first incident referred to by the petitioner is dated 14/6/91. According 12 to him on that day there was a quarrel between him and the respondent because the respondent used to get up late in the morning. According to him due to this the respondent lost her control and he had to take her to her parents’ house so that she may cool down. He brought her back on 25/12/91 because his younger brother was to get married. The petitioner has further stated that thereafter the respondent told him that he should arrange for a separate residence. He could not fulfil her wish. According to him there was a quarrel between the respondent and his sister-in-law and, therefore, his brother went to stay at Nalasopara. After his second brother got married the respondent again insisted that they should live separately. Thereafter with the help of his mother he booked a flat at Virar. 17. Admittedly on 29/9/92 their son Tanmay was born and the respondent went to her parents’ house after delivery. The petitioner has admitted that both of them had dispute about the breast feeding of the child in which he lost temper and hit the respondent. According to the petitioner in May 1993 they shifted to their house at Virar. There was a quarrel between them as to in which school 13 the child should be admitted. The dispute was whether the medium of instruction should be English or Marathi. Child was ultimately admitted in English medium school. 18. Further case of the petitioner is that there was a quarrel between them over the purchase of TV. He could not afford to buy a colour TV. His family helped him to purchase a colour TV. According to the petitioner the respondent used to always quarrel with him over purchase of household items. He has further stated that though he bought a TV he could not buy antenna because he had no money. On this issue there was again a quarrel between the two. He requested his mother to arrange for some money. In the meantime the respondent went to her parents’ house and brought Rs.750/-for purchase of antenna. Due to their quarrels his parents were upset and his father got heart attack on 26/1/97. According to the petitioner thereafter they shifted to Andheri and from Andheri they again shifted to Borivali to his parents’ house. 19. The next incident is dated 13/4/96. It was respondent’s birthday. According to the petitioner he and his mother gave money to the respondent. 14 The respondent bought two dresses for herself out of which one dress was too big for her. He suggested that she should exchange it or alter it. On this issue there was a big quarrel. According to the petitioner, the respondent used abusive language by saying that he was a dog and he cannot manage his affairs. She beat him and tore his shirt. According to the petitioner one morning the respondent packed her bag and left for her parents’ house without informing him or his parents. She had carried with her keys of the Virar flat. He, therefore,broke the lock of Virar flat and replaced it with new lock. 20. The petitioner has further deposed that thereafter the members of the respondent’s family visited his house. They made allegations against the petitioner. They threatened him. A meeting was held in Vijay Gaikwad’s house. In the meeting again allegations were made against the petitioner. However, the respondent put unreasonable conditions on him and hence no compromise could be arrived at. 21. According to the petitioner in January, 1998 respondent’s relative Shri Pote went to Borivali Police Station. Borivali Police Station called the 15 petitioner and his parents at the instance of Shri Pote. In that meeting it was agreed that the petitioner should take the respondent home. The respondent wanted two days’ time to return to the matrimonial home. It was decided that the petitioner should meet her at Mahim Railway Station. The petitioner met her at Mahim Railway Station and told her that renovation work was going on and she should stay for two more days at her mother’s house. The respondent insisted that she would go to the matrimonial home on that day only. She went to the matrimonial home but could not enter it because renovation work was going on. The respondent then went to the police station. The petitioner was also called to the police station. According to the petitioner he explained his difficulties to the police. The police officer persuaded him to take the respondent home. The petitioner then brought the respondent home. According to the petitioner after her return the respondent did not allow him to enjoy the company of Tanmay. She did not cooperate with him. 22. According to the petitioner one day he found the respondent putting some powder in his tiffin box. There was a piece of metal in her hand. He 16 inquired about the same with the respondent. On 23/3/97 he called the respondent’s mother. The respondent’s mother ,brother and sister visited his house. He inquired about the metal piece with the respondent’s mother. On this issue there was a quarrel between the members of the respondent’s family and members of his family. According to the petitioner the respondent’s mother attempted to assault him. When his father intervened, the respondent’s mother beat him with chappal. After the respondent’s parents left the house, he lodged a complaint at the Borivali Police Station. It was then decided that henceforth the respondent would not do any cooking for the family. According to the petitioner, the respondent refused to do any other work and preferred to sit idle. 23. According to the petitioner on 7/4/97 the house was being cleaned on the occasion of Gudi Padava. The petitioner told the respondent to help his sister-in-law. On this issue there was a quarrel between the two. The respondent refused to do any work and abused the petitioner in filthy language. According to the petitioner she banged her forehead on the cupboard . She injured her nose. The nose started bleeding. She threatened 17 the petitioner that she would go to the police station and tell the police that he had beaten her to such an extent that her nose was bleeding. He told her that she should change the dress and then he would accompany her to the police station but she refused to change her dress. According to the petitioner he then took her to the police station so that she could lodge a complaint against him. At the police station he explained the facts to the police as to how the respondent was injured. Thereafter the police officer called her mother and told her to take the respondent to her house for four days. The respondent was taken away by her mother and thereafter she did not return. 24. According to the petitioner he sent a letter to the C.I.D. Branch, Crawford Market, Mumbai, stating all the facts and the incident which had occurred. He has also referred to the letter received from Mahila Sangathana calling him for meeting. He has stated that he informed the Mahila Sangathana that he would not attend the meeting since allegations were levelled against him by the committee members. 25. The petitioner has further stated that on 18 4/12/97 the respondent lodged a complaint under Section 498-A of the Indian Penal Code against the petitioner and his parents. On the same day they were arrested. They were released on bail on the next day. The petitioner has stated that allegation made against him that he demanded dowry is false. The respondent was never asked to bring money from her parents. She was never beaten up. The respondent never allowed the petitioner to develop good relations with his son Tanmay. According to the petitioner the respondent’s conduct has caused him grave mental pain and agony. It has become impossible for him to stay with the respondent and, therefore, he is entitled to a decree of divorce. 26. In our opinion, quarrels pertaining to the respondent’s alleged habit of getting up late, quarrel over the issue regarding the school in which the child should be admitted, quarrel over the dress of the respondent, quarrel over sharing of the household work and quarrels over purchase of household articles are not instances of cruelty. Such quarrels are common in all homes. They can aptly be described as normal wear and tear of 19 matrimonial life. Marriages cannot be dissolved on such quarrels. It is pertinent to note that the petitioner has stated that the respondent used to fight with his sister-in-law Sayali. Sayali is not examined. Even the petitioner’s mother has stated that her two daughters-in-law used to fight and hence she had told her sons that one of them should live separately. Fights between two sisters-in-law over household work are very common. Vandana sister-in-law of the petitioner has stated that there was no quarrel between her and the respondent. Mangala, neighbour of the petitioner has stated that younger brother of the petitioner is living separately due to some of their own problems but not because of any dispute between the mother-in-law and the daughter-in-law. Therefore, the evidence on record does not show that the petitioner was cantankerous or that because of her there was breach of peace in the house. 27. A few instances of some significance narrated by the petitioner need to be dealt with. According to the petitioner there was a quarrel over a dress which the respondent had brought on her birthday from the money given by him. According to the petitioner even his mother had given her money, 20 Birthday was on 13/4/96. In this quarrel the respondent lost her temper, called him a dog and tore his shirt. Quarrel over a dress is obviously a trivial matter. But it must be seen whether other facts associated with it by the petitioner are proved. The mother of the petitioner, who is supposed to have given money to the respondent has not said a word about this incident. Therefore, the petitioner’s case that mother gave money to the respondent is untrue. Other witnesses of the petitioner have also not deposed about this incident. The respondent has in her cross-examination denied that the petitioner paid any money to her. According to her the money was given by her mother. She has stated that the petitioner told her to return the dress and get the refund. She refused to return the dress. The petitioner got angry and abused her in filthy language. He threatened her that they will have to shift to his aunt’s place at Andheri. He told her that his aunt is strict and she will harass her. According to the respondent when she told the petitioner that she would not go to Andheri, he beat her up mercilessly. In our opinion, the respondent’s evidence inspires confidence. The petitioner has tried to exaggerate this incident to 21 give it the shape of cruelty. 28. The next important incident is about the alleged putting of powder in the tiffin of the petitioner by the respondent and the possession of a metal piece, Vashikaran Yantra by the petitioner. According to the petitioner, he saw the respondent putting some powder in his tiffin box. She had a metal piece in her hand. He enquired about it with her. He called her mother. Her mother, brother