1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE FAMILY COURT APPEAL NO.88 of 2004 Shri Vilas Rangnath Ghogre Appellant Vs. Smt.Jyoti Vilas Ghogre Respondent Mr.S.V.Pitre for appellant. Mr.Rohan Surve i/b. Mr.Madhav Jamdar for respondent. CORAM: B.H.MARLAPALLE & S.J.VAZIFDAR,JJ. Reserved on : June 18, 2009. Pronounced on: July 9, 2009. JUDGMENT (PER B.H.MARLAPALLE,J.) 1. This appeal filed under Section 19 of the Family Courts Act, 19984 read with Section 28 of the Hindu Marriage Act, 1955 (“the Act” for short) arises from the judgment and order dated 26/5/2004 passed in Petition No. A-815 of 2001 by the Family Court at Pune thereby dismissing the appellant’s petition for seeking divorce from his wife – the respondent herein under 2 Section 13 (1)(i-a) and (i-b) of the Act i.e. on the ground of cruelty and desertion. 2. The parties were married on 18/4/1999 at Pune and both of them were working as School Teachers in the local schools at Pune. They begot a daughter on 24/3/2000 and the husband claimed that the wife left the matrimonial home on 31/10/2001. He filed a petition for seeking divorce on the ground of cruelty before the Family Court at Pune on 22/11/2001. The grounds for cruelty were as under: (a) The respondent was insisting to live separately from the other members of the family like parents, sisters etc. (b) The respondent never attended to any domestic work and she was not even offering a cup of tea to the petitioner. She did not behave properly with the family members. (c) When she was pregnant in July 1999 a stone was detected in her liver and, therefore, 3 she was taken by her sister Dr. Ujwala Kamble for medical treatment but without obtaining the petitioner’s consent. (d) Whenever he used to go to meet the respondent, she informed him not to meet her unless he would arrange for alternative accommodation for their exclusive residence. (e) The respondent delivered a female child on 24th March 2000 and the petitioner was not informed about the same. When he went to see the child, the respondent and her parents / sisters did not allow him to see the baby. (f) The brothers of the respondent used to threaten the petitioner and if he even went to her house they would chop off his hands and legs. They even used to abuse him. (g) The petitioner purchased a flat at 4 Sukhsagar Nagar Katraj, Pune by obtaining loan of Rs.3,15,000/- and he called upon the respondent’s relations for house warming ceremony on 25/6/2000. She came for the ceremony but immediately left the house. He obtained another room on lease for the residence of his parents, but she did not come to reside with him in the newly purchased flat and insisted that unless the flat was transferred in her name, she would not come to reside with him. (h) She never contributed financially for running the home or for repayment of loan though she was getting a salary in excess of Rs. 6000/- per month. 3. The respondent filed her Written Statement at Exhibit 18 and opposed the petition. She pointed out that after her marriage she started residing with the petitioner and there were other family members like his parents and three sisters. The elder sister was 39 years of age and was unmarried, the 5 second sister was of 36 years of age and left her husband and was living in the parental home and the younger sister was 29 years of age and was unmarried. The petitioner was forced to start to take tuitions at home between 10 a.m. and 12 noon and 6 p.m. to 8 p.m. so as to add to the financial requirements of the house. The tuition money he used to snatch from her. In addition to her duties as a regular teacher in the school i.e. Garware High School and conducting tuitions, she was also required to attend to the domestic work. When she was pregnant, she was unwell and the petitioner did not allow to spend any penny on the tonics prescribed by the doctor. She was not allowed to take enough rest during her pregnancy. When she went to her parents’ home in November 1999 and was admitted in March 2000 in Renu Nursing Home for delivery, the respondent went to meet her and slapped here when she said that she is likely to give birth to a daughter. On 24/3/2000 when she delivered a baby girl and came out of the labour room, the petitioner said, “You are bhangar, so many women have conceived son from me, you come back with your daughter to my house and just see as what I would do to you and to the daughter.” When she returned to the matrimonial home when the baby was 40 days’ old, the petitioner started 6 demanding an amount of Rs.75,000/- to purchase a flat and she gave Rs.60,000/-. In addition she gave Rs.25,000/- to purchase a motor cycle. As the baby was young, she was forced to stop tuitions but the respondent and his family members started starving her. He refused to pay any amount for the daughter’s medicines and tonics etc. He expressed strong resentment as the respondent gave birth to the baby girl. When the first birthday of the daughter was to be celebrated around 24/3/2001, he refused to participate in the same and, therefore, she had to celebrate the daughter’s birthday in her parents home. The petitioner and his family members refused to attend the birthday celebrations. The petitioner called her on phone and asked her not to return with the daughter. She, therefore, lodged a complaint on 9/4/2001 at Bibwewadi police station but thereafter the harassment and atrocities on her increased. Her sister-in-law used to abuse her and the father- in-law would shout saying that he would kill her. When they started staying separately in the newly purchased flat, the petitioner abandoned the same and started staying with his other family members at Aundh which house he had arranged for them in August 2001. He stopped contributing any money for grocery and the respondent had to borrow from her parents. 7 Every day the petitioner would beat her and abuse her. On 27/10/2001 an official of the Telephone Department came to install the telephone connection in the house but on 30/10/2001 he disconnected the telephone on the pretext that it would facilitate her to seek police help. He thereafter started demanding Rs.50,000/- if she wanted to live in the matrimonial home and he finally threw her out of the matrimonial house on 31/10/2001 by retaining ornaments and other articles given to her at the time of wedding ceremony. 4. The petitioner examined himself and two other witnesses i.e. Avinash Kamble – PW 2 and Sandeep Kamble – PW 3. The respondent stepped in the witness box and examined herself. She was subjected to a lengthy cross-examination. The Counselor submitted a report on 17/5/2002 stating that her attempts for reconciliation between the parties failed and the settlement was not possible. In his cross-examination the petitioner admitted that the house warming ceremony of the new flat was performed on 25/7/2000 and wife along with his daughter was present in the said ceremony. He also admitted in his cross-examination that in the said new house as well all other members of his family were staying. The learned Judge 8 of the Family Court noted that when the respondent was, in addition to her normal school duties, taking tuitions in the morning, she could not be expected to cook and serve the family members . At the same time there is no evidence to show that she had at any time refused to serve tea to the appellant whenever she was free from tuitions. The allegation that she was not behaving properly with the family members was not supported in as much as no family member was examined. None of the other two witnesses stated that she misbehaved with the family members. In his cross-examination he admitted that beyond spending money for sonography at the dispensary of Dr.Thakkar during the pregnancy of the respondent, he did not spend any money for further treatment. He also admitted that the respondent’s sister Dr.Ujwala Kamble took care of the medical treatment of the respondent. He was aware that she had developed a stone in her liver. The Family Court, therefore, rightly noted that the petitioner was aware of the ailments of the respondent and, therefore, it could not be said that she had not informed him about the medical treatment or had not taken his permission and got admitted in the hospital and thus she was guilty of cruelty to the petitioner. 9 5. The wife in her depositions stated that she had paid Rs. 60,000/- in cash for purchase of house and Rs.25,000/- for purchase of motor-cycle from her savings. She reiterated the allegations set out in the Written Statement about the ill treatment meted out to her as she had given birth to a baby girl. Her younger sister is a medical practitioner and she had taken care of her entire medical treatment and the petitioner did not bother to make enquiries about her. She further stated that daughter Rasika was hated by the petitioner right from her birth and the petitioner and his family members neglected her. She was an unwanted child. He used to abuse her and beat her every day in the night when they were staying in the new house without other family members from August 2001 onwards. When she refused to bring Rs.50,000/- from her father as per the demand made by the petitioner, she was thrown out of the house on 30/10/2001. The respondent was subjected to a searching cross-examination and she reiterated all the details of ill treatment meted out to her by the petitioner and her family members. In her cross-examination she admitted that newly purchased flat i.e. Flat No.33, Sukhsagar Nagar admeasured 650 sq.ft. and it was purchased in the name of the petitioner. She admitted that she had no documentary 10 evidence to show that she had paid Rs.60,000/- cash to the petitioner to purchase the said flat. 6. The learned Judge has minutely scrutinised the evidence adduced before him by both the parties. The testimony of the two witnesses examined by the petitioner has been rightly discarded. The Family Court was right in observing that none of the grounds of cruelty as alleged by the petitioner could be proved by him and on the other hand the respondent was driven out of the matrimonial home by the petitioner was duly proved. 7. So far as the ground of desertion is concerned, the Family Court rightly held that the statutory period of two years of leaving separately was not completed and within less than a month from 31/10/2001 the petition came to be presented before the Family Court. Hence the petition was not maintainable on the ground of desertion. 8. On the point of maintenance, the learned Judge of the Family Court noted that both the spouses were working as teachers. The petitioner’s salary slip was at Exhibit 24 and it 11 indicated that his monthly gross salary was Rs.8,858/-. There were monthly deductions of Rs.5,525/- which included Rs. 4,348/- towards repayment of loan from the Co-operative Credit Society. The respondent was drawing a monthly salary in excess of Rs.6000/-. The Family Court, therefore, directed to pay an amount of Rs.1200/- per month to the respondent towards the maintenance of the minor daughter Rasika. 9. Having regard to the reasoning set out by the Family Court in support of the impugned order on evaluation of the evidence brought before it, we are satisfied that the Family Court did not err in any way and, therefore, this appeal must fail. The same is hereby dismissed. The petitioner shall pay by way of costs an amount of Rs.10,000/- to the respondent. We also make it clear that this order will not come in the way of the respondent to apply for enhancement of maintenance for the daughter. (S.J.VAZIFDAR,J.) (B.H.MARLAPALLE,J.)