1 cam204.09.sxw ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 204 OF 2009 IN FAMILY COURT APPEAL NO.134 OF 2009 1. Smt. Anita Thukral ) Age: 45 yrs. ) w/o Shri Satbir Singh Thukral ) R/at Flat No.131, 13th Floor, ) Amit Estate at Samarth Nagar, ) Cross Road No.3, ) Lokhandwala Complex, ) Andheri(W), Mumbai 400 058. ) ) 2. Miss Prairna Thukral ) Aged 15 years, student ) though her mother ) Smt. Anita Thukral ) R/at Flat No.132, 13th floor, ) Amit Estate at Samarth Nagar, ) Cross Road No.3, ) Lokhandwala Complex, ) Andheri(W), Mumbai 400 058. )..Applicants. v/s. Shri Satbir Singh Thukral ) S/o Late Shri Surinder Singh ) Thukral, R/at E-150, East ) of Kailash, New Delhi 110048. )..Respondent. 2 cam204.09.sxw Ms. Meena Doshi with Mr. S.A.Bhalwal & Ms. Hemali S. Kurne i/b. M/s. Vyas & Bhalwal for applicant. Shri Abhijit Sarwate i/b. Mrs. Kokila Sarwate for the respondent. CORAM:- A.M.KHANWILKAR & A.A.SAYED, JJ DATED :- AUGUST 11, 2010. P.C. 1. This application has been filed by the wife for interim relief during the pendency of the Appeal filed by her against common Judgment and Decree passed by the Family Court dated 9th June, 2009, whereby the marriage between the Applicant wife and Respondent husband solemnised on 28th March, 2002 came to be dissolved and the Petition filed by the Applicant wife for permanent alimony was dismissed. 2. The interim relief prayed in the application is for stay of operation of the impugned Judgment and Decree dated 9th June, 2009 of dissolution of marriage and also of rejection of maintenance Petition. Further interim relief claimed in the application is for direction against the Respondent husband to pay sum of Rs.1,50,000/- per month as maintenance to the 3 cam204.09.sxw applicant wife during the pendency of the Appeal with effect from August, 2005 and continue to pay the same every month. 3. We heard arguments of both sides on this application at length yesterday. As other miscellaneous matters were pending, we thought it appropriate to notify the matter for pronouncement of order for today at 3 p.m.. That position was made known to the Counsel appearing for all the parties. Besides, the matter has been notified on the daily board with remark that it is for pronouncement of order and will be taken up at 3 p.m.. However, when the matter is called out after the lunch break for pronouncement of order, no one is present on behalf of the Respondent husband. 4. Be that as it may, as aforesaid, we have already heard Counsel appearing for both the sides at length. During the hearing yesterday, with the assistance of the Counsel appearing for the parties, we have waded through the relevant portion of the pleadings, evidence as also the Judgment, which is the subject matter of challenge in the pending Appeal. The Appeal is already admitted. Significantly, the Appeal was moved before this Court on 6th August, 2009 when the Division Bench of this Court 4 cam204.09.sxw while issuing notice on the Appeal had granted ad-interim stay to the execution and operation of the impugned order by which the marriage has been dissolved by a decree of Divorce. Now we are considering the application not only for confirmation of the said ad-interim order, but also for further relief to grant interim maintenance, as prayed by the Applicant wife in terms of prayer clause (a) and (b) of the application. 5. Before we proceed to examine the controversy brought before us, we would briefly advert to the opinion recorded by the Family Court while answering the issue as to whether the applicant wife caused cruelty to the respondent husband. That can be discerned from paragraphs-28 to 44 of the impugned decision. In paragraph-28, the Court has summarised the allegations on the basis of which the Respondent husband had asked decree of divorce on the ground of cruelty. The same reads thus: “28. Then it is the contentions of the petitioner-husband that since after her marriage the respondent-wife was not behaving properly and she subjected him to harassment and torture. He also stated in his evidence on oath that he had married the respondent-wife on the assurance of the respondent-wife that she would look after his daughters but she had only taken care of her own daughter and was harassing and torturing his daughters. He has also narrated the instances of respondent-wife leaving the daughter at home and going for shopping and also that she had gone to her parental house at Mumbai on the eve of Diwali and 5 cam204.09.sxw celebrated first Diwali after marriage at her house at Mumbai. It was stated that she was even quarreling with him on petty issues to such an extent that he had to suffer from hyper tension and was required to be admitted in the hospital. He stated that whenever he used to be in abroad the respondent was not looking after his daughters and used to worried for them. He also stated that the respondent even as scolding him for not being so wealthy and always giving examples of her rich friends. It is categorically stated that she had married him only for money on the ground of extracting money and was threatening that if demands were not fulfilled she will leave him and lastly the respondent-wife left his house on 31st December 2002 without intimating him with intention to leave the home permanently and informed him only after reaching Mumbai. It is thus his contention that the respondent-wife has subjected him to serve harassment and torture and deserted him.” 6. In paragraph-29 and 30, the lower Court has considered the evidence of P.W.1(Respondent-husband). In paragraph-31, evidence of P.W.2 daughter of respondent husband has been noticed. In paragraph-32 and 33, the evidence of applicant wife has been referred. In paragraphs 34 to 38, evidence of D.W.2, witness examined by the applicant wife in support of her case has been adverted to. After referring to the evidence, the lower Court has examined the matter from paragraphs-39 to 44 of the impugned Judgment to eventually hold that the case made out by the Respondent husband has been established from the evidence on record, which would go to show that the applicant wife caused immense cruelty to the Respondent- husband, to justify the ground of decree of divorce. 6 cam204.09.sxw 7. In so far as the claim of permanent alimony of the applicant wife is concerned, that has been examined by the Family Court in paragraph-46 to 55. The lower Court has then opined that the stand taken by the Applicant wife that as a matter of fact, she was ill-treated by the Respondent husband is not substantiated. On the other hand, the applicant wife deserted the respondent husband. In so far as the issue of maintenance, which is the core issue to be considered in the present application, the trial Court has non-suited the applicant wife firstly, opining that she was not entitled for such relief in law as decree of divorce on the ground of cruelty is being granted against her. Secondly, she has sufficient means to maintain herself. We shall elaborate on these aspects at the appropriate stage. 8. In the present application, the relief of maintenance is confined to the claim of the applicant wife. In other words, no relief of maintenance is claimed for and on behalf of the daughter Prairna, who was born out of the first wedlock of the applicant wife with one Chandrasen. 9. Reverting back, as to how the proceedings commenced before the Family Court. The Respondent-husband filed petition praying for decree of 7 cam204.09.sxw dissolution of marriage and divorce under the provisions of the Special Marriage Act. When the said proceedings were pending, the applicant wife filed Petition praying for permanent alimony. That Petition refers to provisions of section 18 of the Hindu Adoption and Maintenance Act, 1956. Although the said petition was intended to be filed in the pending petition filed by the respondent husband, it was for all purpose considered as a separate substantive petition. In that, separate issues were framed in the said petition. However, the trial of both the petitions was proceeded together and both the petitions filed by the Respondent husband for divorce and that filed by the applicant wife for permanent alimony came to be disposed of by a common Judgment. In the context of the opinion recorded by the lower Court that the applicant wife was not entitled for any maintenance in law, it was argued before us that the said opinion of the lower court is reinforced from the exposition of the decision of our High Court in the case of Manisha Sandeep Gade v/s. Sandeep Vinayak Gade[AIR 2005 Bombay 180]. While dealing with the identical situation, the Division Bench of our High Court in paragraph 32 has observed thus: “32. In the circumstances we are satisfied that the learned Judge was right in coming to the conclusion that the allegations made by the appellant wife were baseless and false and constituted a cruelty. He was, therefore, right in granting the decree of divorce on that ground. Similarly, he was equally right in rejecting her 8 cam204.09.sxw petition for maintenance under Section 18 of the Hindu Adoption and Maintenance Act. This was because once the divorce was granted, petition under Section 18 of that Act could not be maintained. Similarly, the learned Judge was right in his conclusion that no permanent alimony could be awarded to the appellant wife under Section 25 of the Hindu Marriage Act inasmuch as it was clearly established that the income of the appellant wife was better than the respondent husband. Both the appeals are, therefore, dismissed. There will not be any order as to costs.” 10. Therefore, the first question that we propose to answer is: whether the applicant wife is entitled in law for relief of interim maintenance, as prayed in this application ? The applicant wife had filed Petition before the Family Court being Petition No.C-110/2005, praying for permanent alimony as per section 18 of the Hindu Adoption and Maintenance Act, 1956. The said petition has been dismissed by the Family Court. However, the appeal against the said decision of the Family Court has been filed before this Court and which has already been admitted. The appeal also challenges the decree of divorce passed in favour of the Respondent husband by the common Judgment. The factors which weighed with the Family Court for answering the claim of the applicant wife for permanent alimony may have to be answered at the time of final hearing of the appeal. We do not wish to burden our order with those aspects of the matter. 9 cam204.09.sxw 11. By this application, we are called upon to consider the prayer for interim relief prayed by the applicant wife during the pendency of the appeal. For, the relief claimed is of direction to the respondent husband to pay interim maintenance. As noted earlier, the respondent husband had filed petition for divorce by invoking provisions of Special Marriage Act. However, the Family Court has granted decree of divorce under section 27(1)(d) of the Hindu Marriage Act. We shall consider the effect of such error at the appropriate stage. For the time being, we will assume that the Family Court intended to grant decree of divorce as provided by the Special Marriage Act. 12. The question is : whether the application filed before this Court for interim maintenance can be thrown out on the ground that the decree of divorce has been passed in favour of the respondent husband and against the applicant wife on the ground of cruelty ? We have no hesitation in rejecting this argument for the simple reason that we are not considering the Petition filed by the applicant wife under section 18 of the Hindu Adoption and Maintenance Act, 1956 but the application filed in the pending appeal for grant of interim relief. This application in our opinion, would be ascribable to provisions of Section 36 or section 37 of the Special Marriage Act, 1954 10 cam204.09.sxw read with section 151 of the Code of Civil Procedure. Section 36 of the Special Marriage Act clearly provides for alimony pendente lite. The appeal is continuation of the original proceedings. Thus understood, the application for interim maintenance filed before this Court would be nothing but alimony pendente lite, especially when the decree of divorce is already made subject matter of appeal before this Court. The relief claimed by the applicant wife is also ascribable to provisions of Section 37 of the Special Marriage Act, which reads thus: “Section 37. Permanent alimony and maintenance-(1) Any Court exercising jurisdiction under Chapter V or Chapter VI may, at the time of passing any decree or at any time subsequent to the decree, or application made to it for the purpose, order that the husband shall secure to the wife for her maintenance and support, if necessary, by a charge on the husband’s property, such gross sum or such monthly or periodical payment of money for a term not exceeding her life, as, having regard to her own property, if any, her husband’s property and ability (the conduct of the parties and other circumstances of the case) it may seem to the Court to be just.”(emphasis supplied) 13. Considering the expansive language of sections 36 and 37, we have no hesitation in entertaining the prayer for interim maintenance of the applicant wife. The substance of the application which we are called upon to examine is one praying for interim maintenance during the pendency of matrimonial proceedings between the parties. The Apex Court in the case 11 cam204.09.sxw of Rajesh Burman Vs. Mitul Chatterjee[(2009) 1 SCC 398] had occasion to consider a somewhat similar controversy. Indeed, that was a case where matrimonial suit was pending. But the analogy from the principle expounded in the said decision can be applied to the case on hand. For, appeal is continuation of the original proceedings. The Apex Court went on to reject the challenge that when the proceedings were pertaining to Special Marriage Act, it was not open to the applicant wife to institute application under section 151 of Civil Procedure Code for her medical expenses. The Apex Court instead confirmed the opinion of the courts below and held that looking to the scheme of Special Marriage Act, 1954, it is clear that provisions of C.P.Code could apply to Court exercising power under the Act. It further opined that apart from the provisions of Hindu Marriage Act, 1955 or the Hindu Adoptions and Maintenance Act, 1956, the two expressions ‘maintenance’ and ‘support’ in the Special Marriage Act, 1954 are comprehensive in nature and of wide amplitude and they would take within its sweep ‘medical expenses’. It further held that the argument that no relief can be granted by relying on the provisions of the other statute, as the Special Marriage Act, 1954 does not provide for medical expenses, is untenable. In the circumstances, relief claimed in this application can be examined in exercise of powers even under section 151 of C.P.Code 12 cam204.09.sxw irrespective of the fact that the decree of divorce has since been granted by the Family Court. As mentioned earlier, decree of divorce itself is a subject matter of appeal, which has been admitted and we are called upon to stay the operation of the said decree by way of present application. On granting such stay, the claim for interim maintenance of the Appellant wife can be considered also on account of section 18 of the Hindu Marriage Act. We therefore, do not find any impediment in examining the claim for monthly maintenance and support, as prayed by the applicant wife 14. The next question as to whether decree passed by the Family Court can be said to be sustainable. We are conscious of the fact that we are presently not finally disposing of the appeal against the said decision. Nevertheless, we may have to express our prima facie opinion, with regard to the approach adopted by the Family Court in answering the matter in issue. After going through the relevant portion of the pleadings, evidence, as also Judgment under challenge, we have noticed that the Family Court has not done proper analysis of the material on record. In the first place, he has not considered whether the allegations made by the Respondent husband for grant of decree of divorce were singularly or by putting them together, as the case may be, were sufficient to constitute cruelty. The test 13 cam204.09.sxw as to what would constitute cruelty will have to be judged on the basis of principles expounded by the Apex Court in the case of Naveen Kohli v. Neelu Kohli[AIR 2006 SC 1675]. The conduct of the other party should be such that it should be grave and weighty and not ordinary wear and tear of married life and moreso, it should be such that no man can tolerate such conduct. (Also see Manisha Tyagi v. Deepak Kumar [(2010) 4 SCC 339]. We have already adverted to the allegations constituting cruelty, which have been summarised by the Family Court in paragraph-28 of the impugned decision. The thrust of the said allegations is that daughters of the respondent husband from his first marriage were being ill-treated; and at best about the unacceptable behaviour and attitude of the applicant wife. If the allegations regarding ill-treatment meted out to the daughters from first marriage of the respondent husband were to be discarded, it is doubtful whether other allegations singularly or collectively can be said to be sufficient to constitute cruelty. This primary analysis has not been done by the Family Court in the entire Judgment. We have also noticed that the Family Court has adverted to the evidence of concerned witness but has not analysed the efficacy of the said evidence to ascertain whether the fact as alleged by the Respondent husband which according to him would constitute cruelty has in fact been proved by the concerned witnesses. What 14 cam204.09.sxw the Family Court has done is to just refer to the evidence of the concerned witnesses and jump to the conclusion one way or the other on the finding that the witness is trustworthy or otherwise. No analysis of evidence given by each of the witness in relation to the instances alleged by the Respondent husband or the applicant wife, as the case may be has been done. Further, we find that the Family Court has taken inconsistent approach in accepting the evidence of witness examined by the respondent husband namely his elder daughter, who is now married. While considering her evidence, the Family Court has given benefit although was conscious of the fact that her evidence will have to be scrutinized with circumspection. However, when it came to appreciation of the evidence of the witness examined by the applicant wife in support of her plea, the same have been totally discarded on the finding that they have not given details about the events spoken by them. Same logic would apply to the evidence of P.W. 2 daughter of the Respondent husband. We would straightaway adverted to the evidence of P.W.2 daughter of Respondent husband. In her examination in chief, which run into only two paragraphs, she has stated thus: “1. The petitioner is my father and the respondent is my step mother. The respondent never bothered about myself and my younger sister and my father. She used to be out without intimating us with her daughter- Prairna without bothering that my father was out of station and what we 15 cam204.09.sxw would be eating and doing in her absence. She never took care of us, even she used to hit me with walking stick and once she hit me so hard on my wrist, that my wrist was swollen. 2. There used to fight between petitioner and respondent. I remember once, there was argument between them and she was abusing the petitioner and because of that my fattier-petitioner blood pressure went high and he was required to admit in the hospital. She used to abuses in filthy words like calling me a beach and even use to poison our mind against the petitioner. At that time of Diwali 2002 inspite of my father requesting her not to go, she went to Mumbai since she wanted to go. She even created misunderstanding with my in-laws by sending false SMS. She was doing painting and selling the paintings and also taking tuition classes and earning.” The said witness has been cross-examined by the applicant wife. In the cross-examination, she has deposed thus: “3. It is not true to say that, the respondent has taken care of myself and toy sister and done her duties. It is not true to say that she has treated us with love and affection and even arranged my marriage. It is not true to say that, at the time of Diwali, 2002, that my wedding time, the guest were in the house and respondent was not leave the house. It is not true to say that respondent never hit me and I am deposed so falsely. It is not true to say that, that respondent had brought me up with love. 4. It is not true to say that, on that day, the petitioner had sustained an epileptic attack and respondent took him to the hospital. I do not know that he is epileptic patient and I am not seen it anything. It is not true to say that, painting is the hobby of the respondent and she does not sell it and earns. It is not true to say that, respondent not taking tuition classes. I say that she even teach make-up and taken classes of make-up in the home. It is not true to say that, I am deposing so falsely. It is not true to say that, respondent never created misunderstanding with my-in- laws.” 16 cam204.09.sxw 15. Since the main proceedings are still pending in this Court for final hearing, we would refrain ourselves from making deeper enquiry into this evidence. Prima facie, in our opinion, the evidence given by P.W.2 would not be sufficient to substantiate the allegation of cruelty caused on account of ill-treatment as no specific details are forthcoming. Suffice it to observe that the logic applied by the Family Court to discard the evidence of witness examined by the applicant wife would apply on all fours for discarding the evidence of P.W.2. As is stated earlier, if the allegation regarding ill- treatment of the daughters from the first marriage of the Respondent husband were to be discarded, it is doubtful whether the respondent husband would be entitled for decree of divorce on the ground of cruelty. The other allegations are more in the nature of behaviour and attitude of the wife and pertaining to ordinary wear and tear of the married life. Such acts of the applicant wife cannot be said to be sufficient to sustain the finding regarding the ground of cruelty, which the normal and reasonable person would not tolerate. 16. Even evidence of P.W.1 Respondent husband is no better. This is only our prima facie opinion for the purpose of considering whether the applicant is entitled for the reliefs claimed in the present application. 17 cam204.09.sxw Indeed, one of the allegation on which emphasis was placed on behalf of the Respondent husband is that the applicant wife had alleged that the respondent husband had illicit relationship with another woman. The applicant wife not only made that allegation but also named the woman who was involved in the illicit relationship with the Respondent Husband. According to the applicant wife, the same lady has now been named as Respondent No.2 in the appeal before us. 17. Significantly, the Respondent husband has entered into third marriage with the said named lady on 29th July, 2009, as is