1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Family Court Appeal No.52 of 2003 Shri Devji Alias Vinod Pitha Zala Appellant Vs. Smt.Prabha Devji Alias Vinod Zala Respondent Mr.I.S.Thakur for appellant. Mr.Vinod Mishra for respondent CORAM: B.H.MARLAPALLE & D.G.KARNIK,JJ. March 26, 2009. ORAL JUDGMENT (PER B.H.MARLAPALLE,J.) 1. This appeal filed under Section 19 of the Family Courts Act, 1984 arises from the judgment and order dated 7/1/2003 rendered by the learned Judge of the Family Court at Mumbai thereby dismissing Petition No.A-222 of 1995 filed by the appellant seeking divorce on the ground of cruelty within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act, 1955 ("the Act" for short). 2. The parties were married on 16/1/1986 as per the Hindu Vedic rites at Mumbai. While the wife was studying for the final year of her B.A. degree course, daughter Richa @ Riddhi was born on 25/9/1987 and son - Akhilesh was born on 29/9/1994. As per the 2 appellant he left the company of the respondent on 18/7/1994 and on the earlier night there was a quarrel between them at about 11 p.m. while they were returning home from the hospital. He further alleged that after reaching home the wife took out a knife and started threatening him to leave the house otherwise she would kill the daughter and also the child in her womb. He apprehended danger to his life and left the home at about 2.30 a.m. on 18/7/1994. He filed the petition for divorce on 6/2/1995. In the petition he set out the ground of cruelty pertaining to the incident on 17/7/1994 and also the complaint allegedly filed by the wife with Byculla Police Station on 17/1/1995 alleging that he was staying with another lady by name Ms.Solanki. He also stated that he was suffering from mental cruelty because of the behaviour of the wife and, therefore, he sought the divorce on the ground of cruelty. . The wife filed her Written Statement at Exhibit 5 and opposed the petition for divorce. In her reply she pointed out that the incident of 17/7/1994 was an utter lie and the husband was trying to take benefit of his own wrongs. He was staying with Ms.Solanki after he left the home and was carrying on with her 3 even before he left her company. She claimed that sometimes in the month of January 1995 she was called by the Byculla Police Station on the complaint they had received from the parents of Ms.Solanki as she was missing and as per her, around the same period the petitioner was also missing for about ten days. . In support of his case the petitioner examined himself. To oppose the petition filed by him the wife stepped in the witness box. No third party was examined by any one of them. 3. In the case of V. Bhagat Vs. D. Bhagat [(1994) [(1994) [(1994) 1 SCC 337] 1 SCC 337] 1 SCC 337] on the issue of mental cruelty the Supreme Court stated as under: "16. Mental cruelty in Section 13(1)(i-a) 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. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be 4 asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, 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 which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made." . In the subsequent judgment in the case of Chetan Dass v. Kamla Devi reported in [(2001) 4 SCC [(2001) 4 SCC [(2001) 4 SCC 250] 250] 250], their Lordships stated, "Matrimonial matters are matters of delicate 5 human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of "irretrievably broken marriage" as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case." . In the subsequent decision in the case of Vinita Saxena v. Pankaj Pandit [(2006) 3 SCC 778] [(2006) 3 SCC 778] [(2006) 3 SCC 778] the 6 Supreme Court observed, "As to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer." 4. We have to, therefore, on the backdrop of this settled position of law on the issue of mental cruelty, consider whether the appellant was successful 7 in making out a case of mental cruelty so as to dissolve his marriage with the respondent. Mr.Thakur, the learned counsel for the appellant submitted that apart from the incident of 17/7/1994 wherein the respondent allegedly took out a knife and threatened to kill the daughter and the child in the womb, the respondent filed a complaint with the police station on 17/1/1995 when both of them were already staying separately and this complaint was serious enough to make out a ground of mental cruelty. As per Mr.Thakur this complaint has a double edged effect viz. (a) that there was an allegation against the husband that he was living with a married lady and thus guilty of adultery, and (b) a false complaint was filed with the police regarding his alleged relationship with Ms.Solanki and thus in the eyes of the society he was called a criminal. On both counts there was a sufficient case of mental cruelty so as to pass an order of dissolution of marriage, submitted Mr.Thakur. 5. The respondent in her examination in chief before the Family Court stated, "It is not true that on 17th July 1994 I threatened the petitioner to leave the house 8 saying otherwise I would kill daughter - Richa and unborn child in the womb. It is not true that due this threat, the petitioner left the matrimonial house. It is not true that I caused mental torture to the petitioner..." It was the claim of the petitioner, which is not disputed, that her brother had met with an accident and he was hospitalised in July 1994. She stated in her cross-examination that the petitioner on one day came to the hospital and presented her a paper with a writing and asked her to sign that paper, while she was admitted for her second delivery and they were already staying separately at that time. This paper was presented in the presence of one Sharmila Bangera, a tuition teacher. She further stated that she had filed a missing complaint at the Byculla Police Station as the husband was absconding from house for some days. As per her he used to stay out in the night in some other place and during the day time he would come home. She also stated that the petitioner had taken a room at Vaccha Road, Behind Mahadik House, Ground Floor, Room No.4, Opposite Colaba Police Station, Colaba, Mumbai. During her cross-examination she emphasised that despite all these allegations 9 against the petitioner she was still interested to continue with the marriage. By reading the evidence and more particularly the depositions of both the parties, it cannot be said that the wife filed a false complaint against the husband regarding the alleged relationship or friendship with Ms.Solanki or that he had been absconding with her. The evidence indicated some prima facie grounds to support the allegations of the wife that the husband was friendly with the said Miss or Mrs.Solanki. In his cross-examination he admitted that on 13th January 1995 at about 10 p.m. he had, with his mother and aunt and other relations, gone to Kolhapur by Armada jeep. This admission indicates that he was away from Mumbai around 13th January 1995 and, therefore, the wife was prima facie justified in believing that he was absconding, when he did not in fact intimate to her about his visit to Kolhapur. 6. Mr.Thakur submitted before us that from 17/7/1994 the parties have been staying separately and that the marriage is a dead marriage or it has reached an irretrievable stage and, therefore, this is a sufficient ground to dissolve the marriage. These submissions do not impress us. No such ground has 10 been provided in the scheme of Section 13 of the Act. Even otherwise this contention appears to be unilateral. As indicated earlier, the wife stated before the Family Court that despite her allegations, she was interested to save the marriage and was willing to cohabit with him. 7. We are, therefore, satisfied that the reasoning set out by the Family Court in the impugned order holding that the husband could not make out any case of cruelty to dissolve the marriage requires to be confirmed. We have also independently examined the contentions of the husband regarding the ground of cruelty after son Akhilesh was born on 29/9/1994. Admittedly, there was only one incident of filing police complaint on 17/1/1995 as alleged by the husband in support of his case of cruelty so as to dissolve the marriage. We have also considered the judgment in the case of Samar Ghosh vs. Jaya Ghosh [(2007) [(2007) [(2007) 4 SCC 511] 4 SCC 511] 4 SCC 511] as relied upon by Mr.Thakur in support of this appeal and we have no hesitation to hold that the said decision is not applicable to the facts of the instant appeal. 8. In the premises this appeal fails and the same 11 is hereby dismissed with costs quantified at Rs.10,000/-. The cost amount to be paid to the wife within a period of four weeks from today. (D.G.KARNIK,J.) (B.H.MARLAPALLE,J.)