1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.133 OF 2005 Mr. Rajendra Lakshminarayan Rathi ] Age about 34 years, ] Appellant Occ.: Service ] (Original Residing at 917, Bazarpeth, ] Petitioner) Cross Lane, Sangamner - 422 605 ] Vs. Ms.Sonal Rajendra Rathi ] Age about 28 yrs., ] Respondent Occ.: Household, ] (Original Residing at Shinde Ali, ] Respondent) Survey No.180, Shukrawar Peth, ] Pune - 411 002 Mr.Hitesh Vyas, Advocate for appellant. Mr. S.S. Hardikar, Advocate for respondent. Coram : A.P. DESHPANDE & SMT.R.P.SONDURBALDOTA, JJ. Judgment reserved on : 25th March,2010 Judgment pronounced on : 12th April 2010 JUDGMENT (Per Smt. R.P. SondurBaldota, J.) 1. The appellant husband by this First Appeal seeks to challenge the correctness and legality of the judgment and decree dated 25th August 2005, by which the Family Court, Pune dismissed his petition for divorce and allowed the counter claim of the respondent-wife for restitution of conjugal rights. 2 2. The appellant and the respondent were married at Pune on 21st July 1997 as per the rights and customs of Hindu Religion. After the marriage, they started residing at Sangamner in the joint family of the appellant. They have a son by name Yash, born on 15th May 2000. The respondent had gone to her parents house at Pune for the purpose of delivery of son. She returned to Sangamner on 14th August 2000. Then the parties resided together at Sangamner until March 2001, when the respondent and her son Yash were brought by the appellant to her father's place at Pune and left there. On 12th April 2003, the appellant filed petition being P.A. No.238 of 2003 in the Family Court, Pune for decree of divorce on the ground of cruelty and desertion under Section 13(1) (ia)and (ib) of Hindu Marriage Act, 1955. Prior to filing of petition, the appellant had sent notice dated 26th November 2001 calling upon the respondent demanding divorce by mutual consent. The respondent, by her reply dated 14th December 2001 refused for divorce and stated that she was willing to cohabit with the appellant as per his terms and conditions with his joint family at Sangamner. 3. The trial court categorized allegations of cruelty made by the appellant in two parts. The first part includes the incidents alleged to have taken place prior to August, 2000 until which date the parties admittedly cohabited with each other happily and the second part includes 3 events subsequent to the date. The incidents falling in the first part stated in brief are as follows :- After the respondent conceived Yash, there was customary ceremony of Dohale Jevan performed. Since it co-incided with the marriage of the “ ” appellant's brother, the two functions were held together. The respondent did not approve of the joint celebration and created a scene at the time of the function by crying and alleging that the appellant's family had celebrated two events together because it wanted to save money. She also complained that the marriage ceremony overshadowed the ceremony of Dohale Jevan . This conduct of the respondent in presence of guests had “ ” defamed the appellant and his family. The second allegation of cruelty relates to the household work. The respondent not only did not do the household work but used to order her mother-in-law for water and tea. This conduct of the respondent humiliating the mother caused mental anguish to the appellant. Next, on her return home after delivery, the respondent picked up a quarrel that she was not received properly by the appellant's mother. The respondent desired that the appellant separated from his family either by shifting to Pune or making separate residence at Sangamner. The further incident of cruelty alleged is that at the instance of the respondent, they shifted from the first floor room to the ground floor after the birth of Yash as the respondent feared that Yash may fall 4 down the stairs. Once they shifted to the ground floor, the respondent started getting up from sleep shouting loudly that one Baba was calling her from underground and requesting her to free him from there. The appellant then offered to call a Saint from Nashik to get rid of said Baba. On hearing this the respondent confessed that there was no Baba and that she had made up a story to separate the appellant. 4. The incidents falling in the second category are that in October 2000, the respondent started reiterating her demand of separate residence. She also demanded Rs.30,000/- for her parents. When the appellant expressed his inability to give the said amount, she started throwing things around the house and threatened him that she will kill herself and Yash, if he did not succumb to her demand. She went ahead to pour Harpic in the milk of Yash. The appellant snatched the glass of milk and poured it down the drain. After this incident, the appellant took the respondent and Yash to the house of her parents at Pune and left her there, so that she could have a change of surroundings. Some days thereafter,the appellant went to Pune and suggested the respondent to return to Sangamner but she refused saying that instead he should come and reside at Pune. In January 2001, the appellant had come to Pune and at the request of the respondent taken her to Kolhapur for darshan of Goddess Ambabai. Thereafter when he again asked her to return to Sangamner, she started 5 shouting and hitting him. She also made a show of opening a bottle of phenyl and drinking it. She threatened the appellant that if he wanted to see her alive, he should not persuade her to go to Sangamner along with him. Therefore, the petitioner returned alone to Sangamner. 5. As regards the ground of desertion, the appellant alleged in the petition that the respondent abandoned him in January 2001. She denied physical access to him and also deprived him of the society and company of Yash. 6. The respondent denied all the incidents of cruelty alleged against her and filed counter claim for restitution of conjugal rights stating that she had been left by the appellant at her parents place along with the son. She has been residing there with a hope that the appellant will take her back some day. The respondent denied that she has deserted the appellant. She made a claim for maintenance at the rate of Rs.3,000/- for herself and Rs.2,000/- for son, Yash. The appellant has filed written statement to contest the counter claim alleging that the desire of resumption of cohabitation expressed by the respondent is not genuine. 7. The Family Court in its extensive order considered all the allegations of cruelty made by the appellant and arrived at the conclusion that there was no merit in the same. Undisputedly until 14th August, 2000, the parties led happy married life. This is the evidence of the appellant 6 himself. The Family Court therefore observed that any instances of cruelty alleged until that date would not be relevant. The incidents alleged during the period of August 2000 to January 2001, would alone, be required to be considered. In our opinion, the Family Court is correct in it s observation as any discord that had taken place prior to August 2000 ’ is not relevant for the present proceedings in the circumstance of happy matrimonial life until then. Besides by the very nature of the instances, it is apparent that the same are natural wear and tear of matrimonial life. In any case, despite the observations, the Family Court has extensively considered the evidence led by the appellant of himself and his two witnesses to arrive at the finding that there is no substance in the allegations, and that in all probability, such incidents had not taken place. The Family Court also took note of the fact that most of the prior incidents had not even been mentioned in the notice dated 26th November 2001 sent by the appellant prior to filing of the petition. The Court found from the evidence of the appellant that not only the incidents alleged are not probable but they were not supported by any corroborative evidence. We have carefully gone through the evidence and the impugned order and are satisfied with the above observations on merit of the Family Court, as regards the probability of the incidents occurring prior to August 2000. 7 8. Coming to the incidents subsequent to August 2000, the allegations in respect thereof are of serious nature. It is alleged by the appellant that in October 2000, when the respondent was preparing milk for Yash, she made demand of Rs.30,000/- for her parents. When the appellant pleaded his inability to pay the amount, the respondent created a scene by throwing things around the house. She threatened that she will kill herself and son,Yash, if he did not accede to her demand and poured harpic in the milk of Yash. When the appellant saw this, he grabbed the glass of milk and threw it away. The Family court found that there was no corroboration to the evidence of the appellant on this incident. It also found that the notice sent by the appellant cited the incident in a totally different context. The notice refers to the allegation of pouring harpic in the milk but not to the threats by the respondent of killing herself and Yash. The notice instead alleges that the respondent told him that it was the Baba who used to trouble her and make her do such things. The Family Court found that this inconsistency in the notice and deposition of the appellant was not explained. Further the story of demand of Rs. 30,000/- is not mentioned in the notice. The Family Court held that the two versions of the incidents given in the notice and the petition as well as the evidence did not tally with each other and when there is no corroborating evidence on record, it was difficult to accept that the 8 respondent would pour harpic in the milk of Yash to kill him. According to the Family Court, the appellant had improved his version in evidence so as to give colour of cruelty to the exaggerated version of the incident. 9. While describing the above incident at paragraph-12 of the petition, the appellant categorically alleges that the respondent had threatened to kill herself and Yash, unless the appellant acceded to her demands. The oral evidence of the appellant on this incident is almost verbatim same as the allegations in the petition. The incident, as alleged in the notice (Exhibit-65) however, is different in material aspects. The version from the notice reads as follows : 6. “ On one occasion again, you poured Harpic in the milk, which was to be given to the baby boy i.e.Mahesh alias (Yash). At that very instance, my client came to know about it and be poured down the whole milk and thus saved the child. When my client questioned you about this you again gave him the false reason that it was the Baba who internally use to trouble you and make you do all these things.” The version from the notice indicates helplessness on the part of the respondent, whereas, the petition and the deposition of the appellant alleges conscious act of issuance of threat by the respondent. 10. The notice mentions neither date nor time nor place of the incident. The petition mentions the date but not the place and time of the incident. 9 Apparently, there was no witness to it. Consequently, there is no corroborative evidence. In the circumstances, the trial court was right in drawing an inference that the appellant had tried to improve his case at the time of evidence. The allegation made against the respondent of committing an act that would have endangered life of the child are very serious in nature. The same could not have been made in such casual manner. The Family Court has rightly disbelieved the evidence in view of vagueness of pleadings, inconsistency in the pleadings and evidence and lack of corroboration. 11. The second subsequent incident of cruelty is of the respondent trying to drink phenyl when the appellant demanded that she returns to Sangamner. In respect of this incident also, there is inconsistency in the notice and the deposition. The version of the incident in the notice reads as follows : 7. “ Again on some other day also you tried all different ways to scare my client and his parents and hence you had made a show of drinking phenyl with the intention that my client would get scared and would take steps to reside separately. But as my client loved and cared for you a lot he saw to it that you were given the necessary medical treatment at the earliest and were able to save your life in time. My client later realized that you had drunk only few sips of phenyl knowing that the same would not be fatal and would be sufficient to scare my client and his parents. 10 The above version is without details of the date, time and place of the incident or medical treatment allegedly given to the respondent. It however, indicates that the incident had taken place at Sangamner since it alleges the attempt to scare the parents. Contrary to the above version, the petition alleges that the incident had taken place at Pune without specifying the location of the incident. The details of the incident as stated in the petition are as follows : That the petitioner states and submits that in the following “ morning after they had returned to Pune, the petitioner once again requested respondent to accompany him to Sangamner. However the respondent started shouting and hitting the petitioner on his face. That when the petitioner in order to save himself and pacify the respondent, caught her hand, the respondent started shouting more loudly screaming that the petitioner was trying to hit her. On the top of it, she made a big show of opening a bottle of phenyl and attempted to drink it. The petitioner once again grabbed the bottle of phenyl from her hands and requested her to clam down. The respondent then demanded that if the petitioner wanted to see her alive, he should not persuade her to go to Sangamner with him. ” The above details create an impression that the incident had taken place at the residence of the respondent s parents where the respondent ’ has been undisputedly residing since the appellant left her there. The evidence of the appellant in examination-in-chief is same as the pleadings. In the cross-examination, however, he claims that the incident had taken place at the house of his brother at Pune. In the petition, the appellant 11 referred to the presence of Sushma at the time of incident. In his deposition,however he failed to mention the same. 12. P.W.2- Sushma, sister-in-law of the appellant deposed that on return from Kolhapur, the appellant and the respondent had stayed in her house. On the following morning, when the appellant requested the respondent to accompany him to Sangamner, she got angry. In a fit of anger, she went to the extent of drinking phenyl from the bottle. The appellant rushed to her and grabbed the bottle of phenyl from her hand. Thereafter PW-2 enquired with the respondent whether she should be taken to the Hospital, when the respondent told her that she had not actually consumed phenyl. The Family Court found the inconsistencies in the versions of the incident to be of serious nature. The notice alleged actual consumption of phenyl leading to medical treatment whereas the evidence before the Court was of a pretence of drinking phenyl. The Court therefore, rightly did not believe the second alleged incident of cruelty also. In our opinion, there is no infirmity whatsoever with the finding. 13. Coming to the allegations of desertion, admittedly it was the appellant who took the respondent and the son, Yash to her parents house and left them there. Then he sent notice (Exhibit `65 ) demanding divorce ’ by mutual consent. On the other hand, the respondent in her reply to the notice expressed her readiness and willingness to cohabit with the 12 appellant even in his joint family in the same house at Sangamner. In the reply, she requested the appellant to come down to Pune and to take her along with Yash to Sangamner. There is nothing on record to show that thereafter the appellant came to Pune to take her back for cohabitation. He also did not send any rejoinder. He simply maintained total silence and allowed the period of two years to elapse, so that he could file petition for divorce on the ground of desertion. It is the evidence of the appellant that his relatives, Mr.Malani and Mr. Mundada, who have been examined by him as witnesses had made attempts to bring reconciliation between the parties. The Family Court has noted that there was no efforts made by the appellant himself to bring the respondent to Sangamner for cohabitation. It was the respondent who had in the first week of June 2001 contacted Mr. Malani on telephone at his office, had met him in his office seeking his help in reconciliation. The Family Court also found that there is no evidence of withdrawal by the respondent from the society of the appellant with intention to bring cohabitation permanently to an end. It further took note of the fact that there was no petition filed by the appellant for restitution of conjugal rights, in fact such a petition is filed by the respondent. On this background, the Family Court held that there was no substance in the allegation of the appellant that the respondent had deserted him. We find no ground to take a view 13 different from that taken by the Family Court on the ground of desertion. 14. In the above background of the case, the Family Court has rightly dismissed the petition for divorce filed by the appellant and allowed the petition of the respondent for restitution of conjugal rights and passed further consequential order of maintenance in the event of failure on the part of the appellant to resume cohabitation. In our opinion, there is no need to interfere with the impugned judgment and decree. Hence, we dismiss the appeal. (Smt. R.P. SondurBaldota, J.) (A.P. Deshpande, J.)