* 1 * FCA-37/2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 37 OF 2009 W I T H CIVIL APPLICATION NO. 55 OF 2009 A L O N G W I T H FAMILY COURT APPEAL [ST] NO. 10982 OF 2010 W I T H CIVIL APPLICATION NO. 131 OF 2010 Jagdish Dayal Giri Indian Inhabitant, Aged about 35yrs residing at Opp.Santoshi Mata Mandir, A-Wing, Blue-Oasis-II Blue Empire Complex, Off.Link Road, Mahavir Nagar Ext.Kandivali (W), Mumbai-400 067. .. .. ....Appellant : V E R SU S : Shradha Jagdish Giri Nee Sweety Narendra Nathwani Indian Inhabitant, Aged : 27 years A-Wing, Blue-Oasis-II Blue Empire Complex, Off.Link Road, Mahavir Nagar Ext.Kandivali (W), Mumbai-400 067. .. .... ....Respondent *-*-*-********* Mrs. Vasanti Joshi, adv.for the appellant. Mr. A.M. Vernekar, adv.for the respondent. * 2 * FCA-37/2009 Coram : A.P. Deshpande, & : Smt. R.P. SondurBaldota, JJ. Judgment Pronounced On : 29 th April, 2010. JUDGMENT : [Per : Smt. R.P. SondurBaldota, J] 1. This is a common order on the above two appeals between the same parties preferred to challenge correctness and legality of the common order dated 21st November, 2008 passed by the Family Court disposing off two petitions filed by the respondent. Family Court Appeal No.27 of 2009 arises out of Petition No.A-617 of 2005 for divorce. Family Court Appeal (Stamp) No. 10982 of 2010 arises out of Petition No.D-52 of 2004 for custody of minor daughter. By the impugned judgment and order, the Family Court decreed both the petitions. 2. The marriage of the appellant and the respondent took place on 21st April, 1995 as per Hindu vedic rites. It was a love marriage. At the time of marriage, the respondent had barely completed 18 years of age. There is a daughter by name Khushboo born from the wedlock. After the marriage, the parties started residing at Ghatkopar, Mumbai. The respondent in her petition for divorce alleged that soon after the marriage, she realised true nature of the respondent. She was shocked to know that the appellant and his family members were not at all * 3 * FCA-37/2009 cultured and did not respect the elders in the family. They used to quarrel loudly and abuse each other in the presence of relatives. In May, 1995 the appellant took the respondent to Bhuj for the marriage of his younger brother. But she was made to stay at Bhuj even after completion of the marriage ceremony. She had to live there with every kind of restriction and also slog in the house. She was not permitted any contact with her parents. In May/June, the respondent became pregnant. During her pregnancy, neither the respondent nor his family members took her care. Prior to the marriage, the appellant had represented to the respondent that he is the owner of photo studio by name `Giri Photo Studio’ on station road, Ghatkopar. However, after the marriage, the respondent realised that the studio belonged to the uncle and the appellant used to merely sit in the studio. The appellant was also a habitual drunkard. He often came home late in the night in a drunken state. When the respondent gave birth to a girl child, Khushboo on 17th February, 1996 the appellant and his family members were disappointed as they were expecting a male child. The appellant then became ruthless towards the respondent started assaulting her and also stopped paying money towards the household expenses. The respondent had to approach her father for financial help. In June 1998, there was a quarrel between the * 4 * FCA-37/2009 appellant and his elder brother on the issue of property. The appellant’s brother started assaulting him. Therefore, the respondent intervened in the quarrel. This infuriated the appellant’s brother and he started hitting the respondent. The appellant was a silent spectator to the assault on the respondent. On 20th January, 2001 the appellant himself assaulted the respondent. Being frustrated by the continuous torture, the respondent became depressed and consumed Bagyon spray. She was then admitted to Sukh-Shanti Hospital at Ghatkopar (West) and was in ICU was 2 days. At the instance of the appellant, the respondent told the Doctor that she had consumed Baygon spray accidentally thinking that it was some medicine. Day by day, when the things became worst the respondent went to reside with her parents and also take up a job. In the month of March 2004, the appellant approached the respondent and his family members with an assurance that he would be a responsible person and shall no more harass the respondent. In order to give a chance to the marriage, the respondent agreed to join the company of the appellant and both stayed together at Capole Sanitorim for about a month. However, within a short time the appellant returned to his earlier ways and the respondent rejoined her parents on 23rd March, 2004. In 11th June 2004, the appellant tricked the respondent and took away Khushboo to Bhuj from where * 5 * FCA-37/2009 the respondent had to retrieve her. Finally the respondent filed petition for divorce claiming custody of Khushboo and also maintenance in the sum of Rs.7,000/- for her. She also claimed return of ornaments and articles belonging to her and in the alternative, value of the articles of Rs.1,88,900/-. The appellant filed his written statement denying all the acts of cruelty alleged against him. He claimed that in fact not only taken care of the respondent but also permitted her to complete studies. The respondent completed her post graduation in Commerce faculty and further pursued computer education. She even underwent training to become an Air Hostess. 3. The parties examined themselves in support of their respective cases. The respondent in addition examined her paternal uncle, Lalit and her younger sister, Deepa. The Family Court on appreciation of the evidence held that the respondent had proved that after solemnization of marriage, the appellant had treated her with cruelty and granted decree of divorce to her along with permanent custody of daughter Khushboo. The appellant was directed to pay maintenance of Rs. 3,000/- for the daughter. As regards the ornaments and articles claimed by the respondent, the Family Court accepted her claim and directed return of the articles and in the alternative, payment of Rs. 1,88,900/- towards the value of the articles. * 6 * FCA-37/2009 4. With the help of counsel for both the sides, we have gone through in detail the pleadings of the parties and also the notes of evidence. We find that the respondent has stated in her deposition, the respondent has stated in detail all the acts of cruelty alleged against the appellant. However, cross-examination of the respondent was limited to giving mere suggestion that the respondent was not so ill- treated. The appellant does not dispute the incident of consumption of Baygon spray by the respondent and her admission to intensive care unit in the hospital. He however sought to explain the incident by saying that it was an accident and not an attempt to commit suicide because of the ill-treatment and harassment. The appellant also admits the incident of his visit to Vaishno Devi when the infant daughter was 5 months old, suffering from chicken pox, leaving the respondent alone to look after the child. This incident is also sought to be explained by him by saying that the programme for visit to Vaishno Devi had already been finalised before the infant daughter fell sick. The respondent similarly does not dispute visit to Bhuj for the marriage of his younger brother and the respondent being continuously kept there for a period of 5 months. Though he disputes the allegations of ill-treatment or harassment. The record shows that initially parents of the appellant were opposed to his marriage with the * 7 * FCA-37/2009 respondent. They had already looked for another girl to whom they wanted appellant to get married. On this background, the Family Court appreciated the evidence of the respondent that family members of the appellant used to find fault with her work, they compelled her to stay at Bhuj for 5 months, made her to take “ghunghat” and compelled her to work in the kitchen whole day and found the evidence to be convincing. It was also of the opinion that merely because the respondent was able to complete her study after marriage, it cannot be inferred that she was not subjected to the harassment. The Family Court also found that though in his examination-in-chief, the appellant denied that he used to consume liquor and he is a drunkard in his cross-examination, he admitted that he used to consume liquor. With this, the Family Court was of the opinion that the version of the respondent that the appellant used to harass her under the influence of liquor was more probable. All the above inferences drawn by the Family Court are fully supported by the evidence on record and there could be no other inference drawn therefrom. In these circumstances, we are not inclined to disturb the decree of dissolution of marriage granted by the Family Court. Similar is the order as regards payment of permanent alimony of Rs.3,000/- to child, Khushboo. We also find that there is hardly any serious objection to the quantum of * 8 * FCA-37/2009 maintenance awarded. However, there is dispute as regards the articles to be returned to the respondent. Ms. Joshi, learned counsel for the appellant submits that the claim made in the pleadings about gift of the articles and the ornaments is a bald claim without particulars. She also submits that even in the deposition, the respondent has not narrated any particulars about the gifts. Further according to her, some of the items mentioned in the list are utility items which items, with the passage of time, have become useless. Mr. Vernekar, the learned counsel for the respondent then makes a statement that the respondent is willing to give up the claim for streedhan articles. Therefore, the impugned decree to that extent needs to be modified. Ms. Joshi makes one more request on behalf of the appellant i.e. for access to daughter, Khushboo. Mr. Vernekar states in fairness that the respondent has no objection to the access. In the circumstances, we dispose off both the appeals with following order: O R D E R 1. The Family Court Appeal (Stamp) No. 10982 of 2010 stands dismissed and the order passed by the Family Court granting permanent custody of the minor child to the respondent is confirmed. 2. The Family Court Appeal No.37 of 2009 is partly allowed. The appeal * 9 * FCA-37/2009 is dismissed to the extent it challenges the judgment and decree dated 21st November 2008 passed by the Family Court, Mumbai dissolving the marriage of the appellant and the respondent solemnized on 21st April 1995 by a decree of divorce. 3. The order passed by the Family Court directing return of the streedhan articles to the respondent by the present appellant as per the list attached to the petition or in the alternative direction to pay a sum of Rs.1,88,900/- being the value of streedhan articles, is allowed and the said direction is quashed and set aside, on a concession made available by the respondent. 4. The appeal to the extent it questions the correctness of the order passed by the Family Court directing payment of permanent alimony of Rs. 3,000/- per month to the minor child, Khushboo is also dismissed. 5. The appellant is granted access to the minor child, Khushboo. The appellant is permitted to meet the minor child in the Society Complex wherein both the parties are residing and may also take the minor child out for shopping. As and when the mother of the appellant comes for stay at the residence of the appellant, it shall be open for the appellant to ask for an overnight stay of minor child, Khusboo at his residence and the same shall be granted subject to the child agreeing to the same. 6. The appellant is permitted to withdraw a sum of Rs.1,88,900/- which the appellant has deposited in this Court in compliance of the direction * 10 * FCA-37/2009 issued by this Court. 7. Hereinafter, payment of maintenance of Rs.3,000/- by the appellant to the minor child shall be made by deposit of the said amount every month in the Saving Bank Account of the respondent, the number of which the respondent shall furnish to the appellant. 8. With the dismissal of the appeal, Civil Application No. 55 of 2010 and Civil Application No. 131 of 2010 do not survive. The same are accordingly disposed off. [SMT. R.P. SONDURBALDOTA, J] [A.P. DESHPANDE, J]