1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 80 OF 2005 Smt. Hemanti Hemchandra Talekar ..Appellant (Original Respondent) v/s. Shri Hemchandra Bhagwan Talekar ..Respondent (Original Petitioner) Mr.Rahul Joshi with Mr. Ambar Joshi for the appellant None for the respondent. CORAM : D.B.BHOSALE & R.Y.GANOO, JJ. Judgement Reserved on : 1st FEBRUARY, 2010 Declared on : 16th FEBRUARY , 2010 JUDGMENT (Per R.Y. Ganoo, J.) : 1. The appellant-wife has filed this Family Court Appeal against the judgment and order dated 1.4.2005 passed by the learned Judge of the Family Court, Mumbai (hereafter referred to as “the learned Judge”) in Petition No. A-1175 of 2001 filed by the respondent herein under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereafter referred to as the said Act.”). 2 2. The appellant-wife got married with the respondent-husband on 13.2.1996 as per Hindu Vedic Rites and both of them started residing at the house at Chembur, Mumbai. The appellant and the respondent have a daughter by name Ms. Mitali. The respondent filed the aforesaid petition No. A-1175 of 2001 in the Family Court at Mumbai on 20.8.2001, alleging therein that the appellant treated the respondent with cruelty. The allegations of cruelty were as follows: 1. Appellant used to abuse him and his parents in filthy language and insult him in public and on the street and used to pick up quarrels with him not allowing him to go to work. 2. Appellant used to give threats of death consequences. 3. Appellant used to refuse to cook food for him. 4. Appellant used to give threats of damaging T.V.Set, fridge, tape- recorder etc. 5. Appellant had assaulted the respondent on 6.1.2001 and he had to take medical treatment. 6. Respondent’s mother was also assaulted by the appellant. 7. Appellant was in habit of leaving the matrimonial house without respondent’s knowledge and consent. 3 8. By her quarrelsome behaviour appellant used to disturb the peace of residential building and was creating a nuisance for the neighbours thereby disturbing the peace. 9. Appellant ruined reputation of the respondent in the society. 3. Upon service of copy of the petition, the appellant filed her written statement and denied the allegations levelled against her. The appellant stated various facts in the written statement so as to claim that the respondent had treated the appellant with cruelty and despite that she wanted to stay with the respondent. In substance, the appellant disputed the allegations levelled against her and prayed for dismissal of the petition. The learned Judge of the Family Court, after considering the pleadings framed following issues: (i).Does the petitioner prove that the respondent has treated him with cruelty after solemnization of the marriage ? (ii).Is the petitioner entitled for permanent custody of their daughter ‘Mitali’? (iii).Does the respondent prove that the petitioner is taking advantage of his own wrong? 4 (iv).Is the petitioner entitled for a decree divorce? 4. In the course of trial, the respondent-husband Mr.Hemchandra gave evidence as P.W.1. The respondent examined one Mr. Amarnath Gaikwad, P.W.2., who happened to stay in the very building in which the appellant and the respondent were staying. The respondent examined Advocate Ms. Helan Joshi as P.W.3 who attempted to settle the matter. Father of the respondent by name Bhagwan Talekar was examined by the respondent as P.W.4. The appellant gave evidence as D.W.1. No other witness was examined on behalf of the appellant. Various documents were exhibited during the trial and important documents out of them are as follows: i) Exhibit 26 is letter dated 20.12.1999 sent by respondent to Senior P.I. of Social Service Department of Mumbai Police stating that the appellant was using abusive language and she was troubling the respondent. ii) Exhibit 28 is letter by father of the appellant to the father of the respondent stating that the appellant stayed away from the respondent from 2.9.1998 to 9.9.1998 without telling respondent. iii)Exhibit 29 is letter sent by Advocate Ms. Helen Joshi, being letter dated 5.11.1996 addressed to Senior P.I., Tilak Nagar Police Station, 5 complaining about the behaviour of the appellant. iv) Exhibit 30 is letter dated 26.9.2001 sent by Mr. M.S.Adhav, advocate of the respondent complaining about the threats administered by the appellant, assault made by the appellant upon the respondent and various other complaints. v) Exhibit 32 is OPD papers of V.C.Gandhi Municipal Hospital, Mumbai regarding the respondent. vi) Exhibit 45 is letter dated 12.6.1996 signed by various occupants of the building where the appellant and the respondent were staying and in this letter grievance was about the behaviour of the appellant. There is mention about the suicide attempt made by the appellant. 5. The learned Judge of the Family Court, after considering the entire record and issues framed by him came to the conclusion that the marriage between the appellant and the respondent is required to be dissolved by decree of divorce and accordingly, decree was passed under Section 13(1) (ia) of the Hindu Marriage Act, 1955. The prayer for custody of the minor daughter “Mitali’ was rejected. Hence the custody of “Mitali”continued with the appellant. The respondent was ordered to pay maintenance of Rs. 2000/- per month to the appellant. Similarly, a sum of Rs.2000/- per month 6 was ordered to be paid towards the maintenance of the minor daughter ‘Mitali’. The maintenance was ordered to be paid w.e.f. 1.4.2005. It is to be noted that respondent has not challenged the order by which custody of the minor daughter ‘Mitali’ was rejected. Similarly, the respondent has not challenged the order of maintenance granted in favour of the appellant and ‘Mitali’. The respondent was duly served, however, respondent did not appear before this Court at the stage of final hearing of this appeal. 6. Learned Advocate Mr. Joshi, appearing on behalf of the appellant had taken us through the entire record and had made an attempt to suggest that the respondent has failed to prove that the appellant treated the respondent with cruelty and as such the decree could not have been passed by the learned Judge. Learned Advocate Mr. Joshi had also submitted that the learned Judge of the Family Court has not considered the evidence of the appellant by which it was contended by appellant that the respondent had treated the appellant with cruelty and that the respondent was at fault. Learned Advocate Mr. Joshi had also submitted that the appellant and the respondent had stayed at Pune and even at Vasai and therefore it could be said that the appellant and respondent enjoyed good matrimonial relations and therefore the decree of divorce should not have been passed. Learned 7 Advocate Mr. Joshi had taken us through the evidence of the witnesses as mentioned aforesaid and had submitted that the appellant had made every effort to see that she behaves as per the desire of the respondent and his family members and she had taken pains to behave as dutiful wife and despite that the respondent had picked up quarrels with her and has taken the advantage of the situation and had filed the petition for divorce without any basis. 7. Learned Advocate Mr. Joshi had submitted that the respondent had filed false complaints against the appellant only to create a record against the appellant. Learned Advocate Mr. Joshi had submitted that the evidence on record has not been properly appreciated by the learned judge and the inferences arrived at by the learned Judge are incorrect and that the decree passed by the learned Judge of the Family Court is required to be set aside. 8. We have considered the submissions advanced across the bar and for following reasons we are not inclined to accept the same. We have gone through the impugned judgement and record and we are of the view that the learned Judge of the Family Court has considered the evidence placed before it in the proper perspective and has rightly arrived at the conclusions 8 that the behaviour of the appellant qua the respondent clearly disclosed that the appellant had treated the respondent with cruelty. The various allegations of cruelty are set out in the earlier part of the judgment. Having perused the record with reference to those points, we are inclined to observe that the respondent has proved that the appellant had treated the respondent with cruelty. It is seen that the marriage took place on 13.2.1996 and thereafter the respondent had filed complaint to the Social Service Wing of Mumbai Police by addressing letter dated 20.12.1999, at Exhibit 26. The respondent has in the said letter narrated as to how appellant abused the respondent and as to how the appellant behaved with the respondent. The contents of the said letter clearly indicate that the respondent had to take recourse to the police authorities for the purpose of resolving the matrimonial dispute. In the normal course, if the behaviour of the appellant was proper, there was no reason for the respondent to make any grievance to the Social Service Wing of the Mumbai Police making a request to look into the matrimonial dispute between appellant and respondent. 9. The respondent has given evidence and he has been able to bring on record sufficient material to show that the appellant treated the respondent 9 with cruelty. Following evidence can be quoted to show as to how the appellant behaved with the respondent. “I say that the respondent used to abuse me and my parents in filthy language and insult me in public and on street and used to pick up quarrel with me and not allowing me to go to work and gave threat of assault.” “I say that the respondent leaves the house in morning and return late at night and when I request the respondent to prepare the food, the respondent refused to do the work. Hence myself and my parents were to sleep without food and this happened often. I say that the respondent is hot tempered and the respondent is in the habit of quarreling in vain without any cause.” “I say that the respondent used to leave the house at night for work and return late to sleep, and when asked about the same, the respondent gave threat of damaging of T.V. Set, Tape Recorder, Fridge etc. I say that due to fear of damaging the materials, I kept quiet.” 10 “I say that the respondent had assaulted me on 6.1.2001, and I took medical treatment from Dr. Joy Y. Patankar (ORTHO).” “I say that the residents of the Bldg. No.3 has written complaint to Senior Inspector of Police, Tilak Nagar, Chembur, Mumbai on 6/11/1996 of the respondent.” “I say that the respondent is in the habit of leaving house without my consent. I say that I informed to the father of the respondent and the father of the respondent had given in writing to my father on 7/9/1998, that the respondent without my consent was living with her father from 2/8/1998 to 9/9/1998. I say that I possess the writing of the father of the respondent in which he had undertaken herein after if the respondent stay with her father, then sole liability will be of the respondent.” “I say that, through my Advocate on 5/11/1996, I had informed to Sr. Inspector of Police, Tilak Nagar, Chembur for ill treatment and harassment and threats.” 11 “I say that I had informed to the tenants of Building regarding ill- treatment of the respondent. I say that the residents of the building had taken signatures of tenants on paper and had informed the respondent not to disturb the peace of building and the respondent had executed writing in the interest of the society, but did not improve.” “I say that the respondent since last one year is sleeping separately from me. I say that I have not had any sexual relation with the respondent since last one year and no co-habitation in between me and the respondent.” 10. Perusal of evidence of the respondent shows that the respondent adhered to his testimony even in the cross examination. The appellant has not been able to elicite any material so as to raise doubt about the testimony of the respondent . The evidence of the respondent will have to be accepted as trustworthy. 11. It must be mentioned that all the evidence quoted above clearly 12 indicates as to how the appellant was behaving with the respondent. The case of the respondent that the appellant used to pick up quarrels with the respondent and his parents and used abusive language is made out in letter dated 12.6.1996 sent by the occupants of the building where the parents and the respondent were residing, being letter at Exhibit 45. So far as this document is concerned, the evidence of the appellant itself goes to show that the appellant has admitted that she had made inquiry with two persons namely Mr. Jadhav and Mr. Sarmalkar, who were the signatories to the said letter and her evidence goes to show that these two persons had admitted that they had signed the letter. The learned Judge of the family Court has given appropriate weightage to this document at Exhibit 45 to hold that the behaviour of the appellant is quarrelsome. The respondent in support of his case that the occupants of the building had observed that the appellant was picking up quarrel, examined Amarnath Gaikwad, P.W.2. We have perused the evidence of Amarnath Gaikwad. Reading of his evidence would clearly go to show that he supports the case of the respondent. His evidence goes to indicate that the contents of the letter at Exhibit 45 are true. Amarnath Gaikwad, P.W.2 is an independent witness and he has no reason to state falsehood against the appellant. In substance, the respondent has been able to make his case good by examining the occupants of the building. The 13 very fact that as many as 29 persons residing in the building where the appellant and the respondent were staying have come forward to write a letter and mention the behaviour of the appellant itself is indicative of the fact that the allegations levelled by the respondent against the appellant were true. The learned Judge of the Family Court has rightly appreciated the importance of document at Exhibit 45 and has rightly arrived at the conclusion that the respondent has been able to make out a case that the appellant was treating the respondent with cruelty. It is the grievance of the respondent that the appellant used to stay at her father’s place without permission and even without telling the respondent. This fact has been duly proved by the respondent by placing on record letter at Exhibit 28 which is addressed by the father of the appellant to the father of the respondent. We have perused the said letter at Exhibit 28 and the said letter in terms confirms that the appellant stayed away from the respondent from 2.9.1998 to 9.9.1998 without telling the respondent and his relatives. This aspect of the matter has been rightly considered by the learned Judge of the Family Court while arriving at the final conclusion. Surely, if the wife leaves the house of the husband and stays with her parents without informing the husband or taking the husband in confidence, such a conduct will have to be treated against the matrimonial duties and therefore the respondent was 14 right in claiming that the appellant had treated the respondent with cruelty. 12. The respondent through his Advocate Mr.M.S.Adhav addressed a letter dated 26.9.2001, Exhibit 30. Paragraph 3 and 4 of the said letter is clearly indicative of the fact that the respondent wanted to place on record the behaviour of the appellant and was anxious in informing the police authorities about behaviour of the appellant. We are inclined to look to this letter to come to the conclusion that the conduct of the appellant qua respondent was such that the respondent was well advised to place on record the objectionable behaviour of the appellant. 13. Advocate Mrs. Helen Joshi, P.W.3 was examined. She had attempted to bring about settlement between the parties and the said efforts were not successful. Since Advocate Helen Joshi, P.W.3, had made efforts to settle the marriage between the parties, we are of the view that it would not be proper for this court to look to her evidence for the purposes of arriving at conclusion, particularly because she was doing the said job on behalf of an organisation “Stri Chetana”. 14. The respondent has examined his father who was staying with the 15 respondent and he had an occasion to witness the conduct of the appellant. Following portions of the evidence given by the father of the respondent is relevant: “ I say that the respondent used to abuse me, and my wife and the petitioner in filthy language and insult us in public and on street. I say that the respondent used to assault the petitioner. I say that the respondent was always in habit of picking up quarrel and she used to go and stay at her matrimonial home without our permission. I say that the respondent never allowed me and my wife to touch daughter Mitali and always used to leave Mitali at her maternal home with her mother. The respondent’s father had given a letter to me on 7.8.1998 saying that the respondent was living with him without our consent.” “I say that the respondent was working and used to leave the house in the morning and return late at night. I say that many times the respondent refused to cook food and therefore we had to sleep without food. I say that the respondent is hot tempered and the respondent is in the habit of quarreling in vain without any cause and the respondent has disturbed the peace of the house due to her loud abuses and assault on the petitioner. I say that the respondent has ill- 16 treated us and treated, me my wife and my son with cruelty. I say that the residents of our building had tried to intervene and the respondent used to abuse them also and therefore they had written a letter to the Police Station about the respondent’s behaviour.” We have perused the evidence of father of the respondent. This evidence has gone unchallenged. 15. The appellant gave evidence. Her evidence indicates that she has a grievance against the respondent and she has in her evidence stated various events by which she wanted to say that the respondent treated her with cruelty and despite that she wanted to adjust with the respondent and stay with him. The appellant’s claims that she had filed complaints to the police station. In her evidence she has given complaint numbers of the N.C’s filed by her. It must be mentioned that she has not produced any document to show that such N.C’s were filed. She has in terms admitted in her cross examination that she has not produced any document regarding she lodging complaints with the police or even medical treatment given to her. This will clearly go to show that the appellant came out with the false case about she having filed complaints against the respondent. Her case that she was 17 required to take treatment on various occasions on account of injuries suffered by her, due to the behaviour of the respondent is not proved. The appellant has admitted that she was aware about the letter at Exhibit 28, being letter sent by father of the appellant to the father of the respondent. It is not the grievance of the father of the respondent that such a letter was procured by the respondent or his family members. In view of this, the contents of the said letter will have to be accepted as trustworthy. 16. There has been a reference to the intervention made by the Shakha Pramukh of Shiv Sena. The parties were called at the Shakha for the purpose of resolving the matrimonial dispute. The appellant has admitted in the cross examination that the averment in paragraph 17 of the written statement that Shakha Pramukh had intervened in the matter to resolve the issue is correct. She has further admitted that the Shakha Pramukh had come to her house to explain to her that she should reconcile and stay with the petitioner. This will clearly indicate that the respondent had made a grievance about the behaviour of the appellant to the police, as also to the Shakha Pramukh of Shivsena as the respondent felt that the Shakha Pramukh may be able to convince the appellant to change her behaviour. The aforesaid admission on part of the appellant that the Shakha Pramukh 18 had visited house of the appellant and had told her to reconcile and stay with the respondent would clearly go to show that even respectable persons in the locality were convinced that the behaviour of the appellant required change. In our view, this evidence on part of the appellant confirms that the allegations levelled against the appellant were true. 17. The appellant had in the examination in chief made a vain attempt to show that she had stayed with the respondent at Pune. However, except her bare word there is no other evidence to show that she had stayed with the respondent at Pune in the changed circumstances. In our view, the bare word of the appellant cannot be accepted. The appellant had enough opportunity to bring on record evidence to support her stand. 18. It is the case of the appellant that the respondent treated her with cruelty and despite that she had shown willingness to continue to have matrimonial life with the respondent. Surely this fact must be within the knowledge of the parents of the appellant. It is pertinent to note that the appellant has not examined her parents or any other near relative to place on record the appropriate evidence to show that the appellant was behaving as dutiful wife and the respondent was at fault. It is in these circumstances, 19 the evidence placed by the appellant before the court, to say many things about the respondent and his parents cannot be accepted. 19. After having considered the entire evidence on record, we are of the view that the conduct of the appellant indicates that she had treated the respondent with cruelty. The respondent was justified in instituting the petition for divorce on the ground of cruelty. In our view, the respondent has been able to place on record appropriate evidence to discharge the burden cast on him. Learned Judge of the Family Court has considered the entire evidence in its proper perspective, and has discussed each and every aspect of the matter so as to arrive at the conclusion as regards the behaviour of the appellant qua the respondent. The learned Judge of the Family Court has also appreciated the various documents which were placed before him and has given appropriate weightage to the said documents to come to the final conclusion in favour of the respondent. In our view, the learned Judge of the Family Court has arrived at proper conclusion on the basis of the evidence placed before the Court. We are therefore inclined to accept the view taken by the learned Judge of the Family Court. For the aforesaid reasons, we are not inclined to take a different view than what has been taken by the learned Judge of the Family 20 Court. Hence, we are inclined to dismiss the appeal.. 20. The custody of daughter Mitali is retained with the appellant and the respondent has not filed any appeal. To that extent no observations are required to be made by this Court. 21. The appellant has not challenged the order as regards the grant of maintenance to herself and daughter ‘Mitali’. Hence no observations are required to be made by this Court. 22. For the reasons mentioned aforesaid, the appeal