-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.110 OF 2006 FAMILY COURT APPEAL NO.110 OF 2006 FAMILY COURT APPEAL NO.110 OF 2006 Arundhati Deepak Patil, .. Appellant (Orig.Respondent) Vs Deepak Bhaurao Patil, Respondent (Orig.Petitioner) Mr R.R.Salvi, for the appellant. Mrs Chitra Phadke, for the respondent. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. DATE : 4th August, 2008 DATE : 4th August, 2008 DATE : 4th August, 2008 JUDGMENT: (PER D.B.BHOSALE,J.) JUDGMENT: (PER D.B.BHOSALE,J.) JUDGMENT: (PER D.B.BHOSALE,J.) 1. This appeal is directed against the Judgment and order dated 22.6.2006 rendered by Family Court in Petition No. A-1567 of 2000 filed by the respondent-husband seeking a decree of divorce under section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (for short, "the Act"). By the impugned judgment, the marriage of the appellant-Arundahti (for short, "the respondent") and the respondent-Deepak (for short, "the petitioner") has been dissolved on both the grounds, that is, cruelty and desertion. The operative portion of the impugned judgment reads thus:- "The petition is allowed. The marriage solemnized between the parties on 26.12.1994 is hereby dissolved by decree of divorce under section 13(1)(ia) and (ib) of the Hindu -2- Marriage Act, 1955. The permanent custody of minor daughter Hardiki shall remain with the respondent-mother Arundhati Patil. Petitioner-father Deepak Patil shall have access to said Hardiki on 1st and 3rd Sunday of every month in the morning from 10.30 to 12.30. The petitioner shall pick up the child from the residence of the respondent and shall bring her back to the same place. The petitioner shall pay Rs.1800/- per month towards the maintenance of daughter Hardiki. He shall pay the same from the date of the order, i.e. 22.6.2006. The respondent’s counter claim for return of her ornaments and getting the residential premises or in the alternative rent for the residential premises is hereby dismissed except that she shall be allowed to get the articles and ornaments which were found in the inventory conducted at the residence of the petitioner on 10.5.005, as per the report submitted at Exh.110, which are lying in the cupboard which is at the petitioner’s residence. Parties to bear their respective costs. A decree be drawn accordingly." 2. Briefly stated, the petitioner and the respondent got married on 26.12.1994. At the time of their marriage both were employed. After the marriage, in June -July, 1995 the respondent took admission for Engineering Degree course in S.P.college of Engineering at Andheri, Mumbai. She appeared for the first and second Semesters in October, 1995 and April, 1996 respectively. In October, 1996, the respondent conceived and, thereafter, left her job. According to the petitioner, at that time, in the -3- course of medical investigation it was revealed that prior to the marriage the respondent was suffering from Multi Nodular Goiter with Hypothyroidism. In March-April, 1997 the respondent went to her maternal home for delivery. On 6.7.1997, she gave birth to a female child. On 12.10.1997, the respondent came back to her matrimonial home with her daughter- Hardiki. On 16.5.1998, according to the petitioner, the respondent left the matrimonial home along with Hardiki in a fit of rage and then returned on 22.6.1998. Again, on 23.6.1998 she went to her maternal home and returned on 7.7.1998. Then she lived with the petitioner for hardly four days and again on 11.7.1998 left the matrimonial home and never returned again. It appears that on 15.7.1998 a police complaint (N.C.No.5.8.98) was lodged by the petitioner against the respondent with Vile Parle Police Station. In October, 1998, the respondent once again took up a job. On 21.10.2000, the respondent filed the petition in the Family Court seeking divorce on the grounds of cruelty and desertion. 3. Before the Family Court, the petitioner, in support of the grounds for divorce, examined himself (PW 1), his father Bhaurao Patil (PW 2), their maid servant Manisha Dhavade (PW 3), his maternal uncle Ulhaskumar Patil (PW 4) and Vasantrao Sawant (PW 5), the retired Principal who -4- acted as a mediator for resolving the dispute between the petitioner and the respondent. As against this, the respondent examined herself (RW 1), her mother Vidhya Gharat (RW 2) and her sister Swapanali Gharat (RW 3). Based on the evidence of these witnesses, examined by the petitioner and the respondent, the Family Court held that the respondent had treated the petitioner with cruelty and she deserted him without any reasonable cause for two years preceding the presentation of the petition. Insofar as custody of the child is concerned, the Family Court granted custody of Hardiki to the respondent with access to the petitioner and further granted Rs.1800/- per month towards the maintenance of the daughter-Hardiki. 4. The petitioner sought a decree of divorce on the ground of cruelty, available under section 13(1)(ia) of the Act, contending in her petition that:- (i) the respondent used to frequently visit her matrimonial home without permission and intimation to the petitioner and his family members; (ii) she used to insist for separate residence at the instance of her parents; (iii) she did not get her name deleted from the Ration Card of her parents so as to enable the petitioner to add her name to their ration card which, according to the petitioner, exhibited that she was never interested in becoming a member of the petitioner’s family; (iv) on the first -5- wedding anniversary she got annoyed and left for her maternal home merely because the petitioner did not take leave on that day; (v) after she returned on 12.10.1997 she stopped cooking and giving lunch box to the petitioner; (vi) on 16.5.1998, the respondent was not feeling well and in a fit of rage she cut a petticoat of Hardiki with a scissor; (vii) on 22.6.1998, when she returned to her matrimonial home and again quarrelled with the petitioner till after midnight and at the wee hours on 23.6.1998 allegedly consumed some tablets and did not wake up in the morning which panicked the family; and (viii) on 7.7.1998, she was brought back by her parents to the matrimonial home when the respondent, on the following conditions, as stated in the petition, allowed her to join him: (a) The respondent should prepare lunch box for the petitioner; (b) The respondent should help the petitioner’s mother in the kitchen in cooking and cleaning; (c) The respondent should eat her dinner with all the family members as against her usual routine of talking to her mother on telephone for 30/40 minutes everyday in the night while other family members take their dinner and thereafter clean up the dinner table and kitchen; (d) the respondent would take proper care of Hardiki. 5. During the period from 7.7.1998 to 11.7.1998, -6- according to the petitioner, the respondent was in a hostile and cantankerous mood and was continuously making malicious allegations against the petitioner, his parents and his sister. The respondent also threatened the petitioner that she would file a false criminal complaint against him and his parents that she was subjected to cruelty with a view to coercing her to meet unlawful demand of dowry. She also, allegedly, threatened the petitioner that she would take a lethal dose of sleeping pills and commit suicide and see that the petitioner would be punished under section 498-A. These are the grounds stated by the petitioner in the petition and in support thereof he examined himself, his father Bahaurao Patil, maid servant Manisha Dhavade and maternal uncle Ulhaskumar Patil. The evidence of all the witnesses, though to a large extent seems to be consistent, the question is whether the alleged conduct of the respondent and the incidents quoted in the petition and/or stated in the evidence by these witnesses would constitute cruelty and it was to such an extent so as to grant divorce. 6. Insofar as the ground of desertion is concerned, according to the petitioner, she left her matrimonial home on 11.7.1998 without reasonable cause and without the consent and against the wish of the petitioner for a continuous period of more than two years immediately -7- preceding the presentation of the petition for divorce which the petitioner filed on 21.10.2000. 7. Ms Phadke, learned counsel for the petitioner, fairly stated that all the events and conduct of the respondent prior to 7.5.1998 were ordinary wear and tear of married life. This submission of Ms Phadke finds support from four conditions put by the petitioner when the respondent was allowed to join him on 7.7.1998. Ms Phadke focused her attention on the following events which, according to her, were grave and weighty so as to come to the conclusion that the petitioner cannot be reasonably expected to live with the respondent. . She submitted that on 7.5.1998 the petitioner and other family members, except his father, were supposed to attend funeral of the petitioner’s aunt. The petitioner, therefore, wanted the respondent to keep Hardiki at home with his father since it was not proper to take her on such an occasion. The respondent, however, did not agree to keep Hardiki at home and took her along, which fact neither the members of the petitioner’s family nor the other relatives liked. She was, according to the petitioner, adamant and unreasonable, which made the petitioner to suffer humiliation. -8- . The next incident, which was equally responsible for causing cruelty to the petitioner, according to Ms Phadke, occurred on 20.6.1998. On that day, Hardiki was not keeping good health and all the family members were to attend a marriage of the petitioner’s cousin sister at Alibag. The petitioner wanted the respondent to stay back but she did not listen to him and went with them along with Hardiki to Alibag and also took her sister along, who was not even invited for the marriage. At Alibag, the respondent, as per the petitioner, made a scene and caused humiliation to him. There the respondent, in the presence of others passed a remark that the petitioner was incapable of looking after Hardiki. . Thirdly, she submitted that in the intervening night of 22.6.1998 and 23.6.1998, there was a quarrel between the petitioner and the respondent, which ended in the respondent taking some tablets. As a result thereof, in the morning she did not wake up, which panicked the whole family. The petitioner was required to call the family members of the respondent, who came and took her to the maternal home. . Next she submitted, during 7.5.1998 and 11.7.1998 the respondent left the matrimonial home on 2-3 occasions, which further added to mental agony since on every -9- occasion she left at some or the other incident occurred because of her adamant and strange behaviour. She then submitted that on 7.6.1998 when the petitioner came back to the matrimonial home she was allowed to stay on certain conditions but she did not observe those conditions and behaved very strangely with the petitioner and his family members. Between 7.7.1998 and 11.7.1998 the respondent was in a very hostile and cantankerous mood making false allegations against the petitioner and his parents. She threatened the petitioner of criminal complaint under section 498-A. She also threatened the petitioner that she would commit suicide and see to it that the petitioner goes behind bars. Those four days, in the petitioner’s words, were a nightmare for him and his family members and they felt "relieved" when she went away on 11.7.1998 with her mother and other family members. The cumulative effect of all the aforementioned incidents and the conduct of the respondent, Ms Phadke submitted, are sufficient to hold that the petitioner was subjected to mental cruelty. 8. We have perused the depositions of all the witnesses examined by the parties and the pleadings with the assistance of the learned counsel appearing for them. At the outset, let us observe that the first incident of attending funeral with Hardiki was not even remotely mentioned in the petition for divorce. For the first -10- time, in paragraph 30 of the affidavit of evidence in lieu of examination-in-chief, the petitioner made reference to this incident. Apart from the fact that the respondent has denied having occurred such incident, we do not find much force in the submission that the alleged incident/occurrence would constitute mental cruelty to the petitioner. It is impossible to digest that merely because Hardiki was taken for attending funeral one would get humiliated so as to seek divorce from his wife. . Even the Alibag incident, in our opinion, cannot be treated as a cause for cruelty, mental or otherwise. Merely because the respondent attended the marriage along with Hardiki and her sister, who was not invited, against the wish of the petitioner, it can not be stated to have caused cruelty to the petitioner for more than one reason. Firstly, the marriage was in the family and, therefore, we fail to understand as to how the act of the respondent taking her sister for the marriage could cause any irritation or humiliation to the petitioner. Secondly, Hardiki is also a daughter of the respondent who, at the relevant time, was mature enough to take her care. It is not the case of the petitioner that she did not look after Hardiki properly and, therefore, her illness aggravated. Similarly, merely because at Alibag the respondent in the presence of others stated that the petitioner was -11- incapable of taking care of Hardiki, in our opinion, cannot constitute any cruelty. Such remarks are very common in the life of almost every husband and wife. If such remarks are treated as grounds for cruelty no marriage would ever last. It is not the case of the petitioner that the respondent was in the habit of passing such remarks in front of outsiders. . The allegation regarding frequent visits during 7.5.1998 and 7.7.1998, also in our opinion, does not appear to be correct. During this period the respondent went to her matrimonial home only twice. It is pertinent to note that when the respondent was allowed to resume cohabitation on 7.7.1998 on certain conditions, no such condition regarding her visits to matrimonial home was put by the petitioner. That itself indicates that the petitioner did not have any objection about her visits to maternal home. . It appears, on 16.5.1998, the respondent allegedly, in a spate of anger, cut the petticoat of Hardiki and on the same day left for her maternal home and returned on 8.6.1998. Apart from the fact that the respondent has denied this incident, neither the petitioner nor any other witness has given further details as to what was the actual incident that occurred on 16.5.1998, which led the -12- respondent to cut Hardiki’s petticoat with scissors. There is no satisfactory evidence on record to show that such incident did occur. 9. Even if it is assumed that all the aforementioned incidents did occur in the manner, as stated by the petitioner and other witnesses, still in our opinion, the conduct of the respondent was not of such a character and gravity so as to give rise to a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with her or it would be impossible for them to live together without mental agony or torture, t entitle the petitioner to secure divorce. In other words, the respondent’s conduct was not such that no reasonable person would tolerate it. Parties to a marriage, tying nuptial knot, are supposed to bring about the union of two souls. It creates a new relationship of love, affection, care and concern between the husband and wife and that it brings two families together. Such ties cannot be allowed to be severed on the grounds/incidents or the conduct which on the face of it are ordinary wear and tear of matrimonial life. None of the aforementioned incidents or conduct of the respondent, could be termed as "grave and weighty" to be treated as a cause for cruelty. Though the word "cruelty" is not defined or it is not possible to say as to when a conduct of other spouse -13- constitutes cruelty, the door of cruelty cannot be opened so wide otherwise divorce will have to be granted in every case for incompatibility of temperament. That was not the intention of Legislature when a ground of cruelty was made available for seeking a decree of divorce. 10. The incident, that allegedly occurred on 22.6.1998 and which ended in the respondent taking some tablets at 2.45 am on 23.6.1998, has been stoutly denied by the respondent in her evidence so also in her written statement. According to the respondent, no such incident, as testified by the petitioner and his father (PW 2) in their evidence, ever occurred. The respondent has stated that on 23.6.1998 she woke up as usual at around 5.30 am and resumed to work in the kitchen. While the petitioner was about to leave for his office, he, at the instance of his father, telephoned her parents and called them at their home. She did not know as to why her parents were called and when she asked the petitioner he simply told her to keep quite. When her parents arrived they were told to take the respondent away and send her only after she gets job. Admittedly, at that point of time the petitioner was not having any job. It appears that all the time after she came back to the matrimonial home in October 1997, that is, after delivery, the petitioner and more particularly his father (PW 2) desired and had so -14- expressed on several occasions that the respondent should work and support the family financially. She has so stated in her evidence. Even in the cross-examination, such case was put to the petitioner (PW 1) and his father (PW 2). 11. The alleged incident of taking tablets will have to be examined in the light of the respondent’s case made out in her written statement and her testimony. If the incident of taking tablets, as narrated by the petitioner, was true he would not have kept quite from 2.45 am, when she allegedly took the tablets in his presence, till morning and only in the morning informed her parents. In his affidavit of evidence, he has stated that in the following morning on 23.6.1998 while the petitioner was about to leave for work he tried to wake the respondent up and since she did not, he requested his father to inform the respondent’s parents about their quarrel in the midnight and that she had consumed certain tablets. This conduct of the petitioner creates doubt about the happenings in the intervening night of 22.6.1998 and 23.6.1998. . Even the subsequent conduct of the petitioner and his family members show that no such incident of taking tablets ever occurred. One would not have reacted in the -15- manner in which the petitioner reacted. If the wife of an innocent husband takes tablets, as alleged in the present case, the reaction of such husband would be different from the one of the petitioner. Firstly, one would not allow his wife to take tablets and would physically prevent her from doing so and, secondly he would call a doctor immediately or shift her to hospital and would not wait till morning to see whether she wakes up. In one case, the conduct of the petitioner in the morning was absolutely cool and unperturbed, who claims that the respondent had taken some tablets at wee hours in his presence followed by the quarrel between the two. It is in this backdrop, narrations of the happenings on 23.6.1998 by the respondent in her evidence appear to be more probable. She has denied that she had taken tablets, as alleged by the petitioner. This incident, in our opinion, cannot be stated to have been proved by the petitioner. 12. The allegation that the respondent was in a very hostile and cantankerous mood between 17.7.1998 and 11.6.1998, in our opinion, is absolutely vague and baseless. No further particulars have been stated either by the petitioner or any other witness examined by him in support of his case. According to the petitioner, the respondent threatened him of criminal complaint under -16- section 498-A. He does not state as to when such threat was given by the respondent?; and what was the immediate reason for her to give such threat to him?. The allegation of the alleged threat of committing suicide also does not appear to be true and genuine. No particulars have been given by the petitioner as to what was the occasion for her to give such threat. Admittedly, the respondent did not make any attempt to commit suicide. All these allegations, which find place in paragraphs 15 and 16 of the petition and in paragraph 34 of the affidavit of evidence, in our opinion, are vague and baseless and that there is no evidence or material on record in support thereof. Admittedly, the respondent never filed any complaint either against the petitioner or his family members of any nature, much less the complaint under section 498-A of IPC. On the contrary, after the respondent left on 11.7.1998, on 15.7.1998 the petitioner lodged a complaint with the police station which, according to him, was filed out of abundant precaution. Apart from the fact that the petitioner did not place on record the said complaint or stated the particulars of the complaint, we do not find that he had any occasion or reason to make such complaint and, therefore, the submission of the learned counsel for the respondent that such complaint was made only to create evidence against the respondent, sounds probable. -17- 13. The father of the petitioner (PW 2) in his affidavit of evidence, has stated that after six months of the marriage, the respondent took admission in the Engineering college and she used to leave the house around 9-9.15 am and returned after 9.30 pm on almost all working days and it went on for a period of two years. This shows, atleast for two years she hardly use to be at home and that she was working very hard for better prospects in employment. During the period of these two years, according to PW 2, on Saturdays and Sundays she used to go to her maternal home for studies and during examination period even the petitioner used to go to her maternal home to explain difficulties she faced while preparing for the examination. This all, on the contrary, show that atleast for 2.1/2 years after the marriage, the relations between the parties were absolutely normal, cordial and happy. Thereafter, she gave birth to the child and she returned to the matrimonial home after her delivery in October, 1997. . Since October, 1997 till 7.5.1998, when the alleged incident of attending funeral occurred, there is no whisper about the conduct of the respondent either in the pleadings or in the evidence of the petitioner and his witnesses. This further shows that after delivery the -18- respondent was carrying on in the family of the petitioner very well and that they had no occasion to make any grievance against her conduct. Then the four incidents, as relied upon by Ms Phadke, learned counsel for the petitioner, occurred on 7.5.1998, 20.6.1998, 22.6.1998 and her alleged hostile and cantankerous conduct between 7.7.1998 and 11.7.1998. As observed earlier, apart from the fact that the respondent has denied every incident, relied upon or the allegations made by the petitioner after 7.5.1998, we are satisfied that none of these incidents or the alleged conduct has been proved by the petitioner. Even if it is accepted that the incidents occurred on 7.5.1998, 20.6.1998 are true, in any case, they cannot be termed as serious incidents than ordinary wear and tear of