1 FCA34.97.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.34 OF 1997 KJ Smt.Nagalakshi Babu Venkateshwar ) Aged about 21 years, Indian Inhabitant of ) Andhra Pradesh, Residing at 4/294, Prashanta) Nagar, ADONI, Dist.Kurnoor, Andhra Pradesh )..Appellant/ Org. Respondent Vs. Babu Y. Venkateshwar ) Aged 32 years, Bombay-Inhabitant ) residing at 12, Vrindavan Housing Society ) Opp.: Ramleela Compound, Sakinaka ) Bombay-400 072 )..Respondent/ Org. Petitioner. ---- Mr.M.V.Joshi i/by S.M.Khaire for the appellant. Shri A.R.Rasal for the respondent. ---- CORAM : A.M.KHANWILKAR & MRS.MRIDULA BHATKAR,JJ DATE : 1st August 2011. JUDGMENT :- ( PER : MRS.MRIDULA BHATKAR,J) 2 FCA34.97.sxw 1 Heard Counsel for the parties. 2 This appeal is filed by the appellant-wife against the judgment and decree dated 11.3.1997 passed by the Judge of the Family Court, Bandra, Mumbai, allowing the Marriage petition No.A-1883 of 1994 for divorce on the ground of cruelty under Section 13(1) (ia) of Hindu Marriage Act. Appellant & Respondent got married at Adoni in Andhra Pradesh on 15.5.1993. Respondent is working as a Bus-conductor at Mumbai and therefore, after marriage, appellant started residing with him at Mumbai. Family of the respondent consisted of his parents and his widow sister and her two children. As per the case of the respondents, the appellant and the respondent had a smooth married life only for a month and thereafter there were quarrels between them as the appellant-wife insisted for separate residence and financially it was not possible for the respondent. Within two months, appellant left matrimonial house and went to her father. On 17.1.1994 she filed two case for maintenance under Section 125 of Cr.P.C and another criminal case at Adoni on the ground of 3 FCA34.97.sxw curelty under Section 498-A of IPC against the respondent, his parents and sister. Respondent was compelled to go to Adoni along with family members to attend the Court dates and thus respondent therefore filed marriage petition on the ground of cruelty. Appellant challenged the petition and she made counter allegations of cruelty against the respondent. It was contended that there was constant demand of money from the respondent and his family members which, due to poverty, her father could not fulfill. The demand for money followed by harassment and therefore she was compelled to leave her matrimonial home and went to Adoni to her native place. It was further contended that she and her father tried to patch up. However, respondents were very firm about their demand of Rs.40,000/-. 3 The learned Judge allowed the petition. Hence, this appeal. 4 Learned Advocate for the appellant-wife has submitted that the learned Judge has committed an error in holding that there was a cruelty on the part of the appellant. It was further 4 FCA34.97.sxw contended that the learned Judge ought not to have accepted the evidence tendered by the respondent as it did not constitute cruelty under 13(1) (ia). Learned Advocate read over the evidence of the appellant and her father. She submitted that the appellant did not leave the house of respondent but she was asked to go alone with the father on assurance that she would be brought back by the husband. However, he did not turn up. She has deposed that her father-in-law went to Adoni and told that unless the demand of Rs.40,000/- was satisfied, she would not be taken back at Mumbai. Once she was brought back to Mumbai, however, again she was sent back to Adoni as her father could not pay Rs. 40,000/-. Learned Advocate argued that her father has also gave evidence about the demand of Rs.40,000/- by the petitioner’s sister and threat of performing second marriage of the respondent. Learned Advocate argued that the Judge has erred in holding that filing of criminal case under Section 498-A amounts to cruelty. On this point, learned Advocate placed reliance on Chiranjeevi Vs. Vs. Smt. Lavanya reported in AIR 2006 Andhra Pradesh, 269, in which it was held that filing of criminal complaint by itself does 5 FCA34.97.sxw not amount to cruelty. She submitted that the acquittal of the family members was due to the statement made by the appellant during the criminal trial that she was willing to go back and stay with the petitioner. Learned Advocate further submitted that the demand of separate residence was never made by the appellant- wife. However, even if it was made, it is not a cruelty. She fortified her submissions on the basis of the ratio in the case of Om Prakash Vs. Smt.Rajni reported in AIR 1988 Delhi 107. She argued that the appellant of her own did not leave the house of the respondent but she was constrained to leave and to go to her maiden home due to the ill-treatment by her husband and the family members. In fact, it was a cruelty on the part of the respondent husband. She relied on the case of Rajani Vs. Subramonian reported in AIR 1990, Kerala, in J.L.Nanda Vs. Smt. Veena Nanda reported in AIR 1988 Supreme Court, 407 and Adarsh Parkash Srivastava Vs. Smt. Sarita Srivastava reported in AIR 1987 Delhi 203. 5 Learned Advocate for the respondent-husband countered all 6 FCA34.97.sxw the allegations made by the appellant-wife. He argued that appellant hardly stayed 2 months with the respondent, as she wanted separate residence she did not return to Mumbai from Adoni. He pointed out that in the evidence of the appellant and also her father P. Nagendrappa, nothing was deposed about the demand of Rs.40,000/- by the respondent. Whatever allegations were made about the demand of money; were by the father or the sister of the respondent and that cannot be said as cruel treatment given by the husband-himself. So demand cannot be attributed to the respondent. Learned Advocate further submitted that the learned Judge has rightly held that filing of false complaint under Section 498-A at Adoni was itself a ground of cruelty for granting divorce. He argued that Adoni situates at Andhra Pradesh and the respondent along with his family members was staying in Mumbai. Therefore, respondent and his family members had to travel to & fro many times to attend the court. This led to lot of financial loss as well as mental and physical torture to the respondent and his family members. He argued that learned Judge has rightly accepted the case of the respondent on this ground and has 7 FCA34.97.sxw allowed the petition. The judgment and decree passed by the learned Family Court at Bandra, therefore, be confirmed. 6 In nutshell, the trial Court granted decree of divorce on the ground of cruelty on two points, firstly that a demand of separate residence by the wife and secondly-filing of criminal case under Section 498-A of IPC in Adoni Court against 5 members of the respondent family by the petitioner which compelled them to travel from Adoni to Mumbai many times. 7 We have gone through the evidence of the appellant, her father and also the respondent. The appellant has denied that she ever made demand of separate residence. On the contrary, she deposed about the demand of money by the family members of the respondent. She stayed with the respondent for about 1 & ½ months and thereafter, her father came to her to take her back in the month of “Shravan”. However, the respondent did not go to Adoni to take her back which was expected as per the tradition of the community though he had assured to do so earlier. According 8 FCA34.97.sxw to her testimony, father-in-law went to Adoni and said that as Rs. 40,000/- were not paid, he would not take her back. She was brought back by her father and he left her to matrimonial house. She deposed that her sister in law did not allow her to take part in the household work and did not allow her to serve food to her husband. After two days when her father came her to see, at that time, the family members including the petitioner asked her father to take her back and refused to accept her and therefore, she again went to Adoni. She filed a petition for maintenance and though she repeatedly made request, she was not taken back. She filed criminal case under Section 498-A. It is a fact that father of the petitioner on the contrary in para-14 of the cross-examination gave admission that the respondent, his son in law is a good person and therefore, his daughter filed a petition for restitution of conjugal rights at Adoni and son-in-law would not harass his daughter, but he apprehended that sister-in-law might harass her. Her evidence on the point of demand of Rs.40,000/- by the family members of the petitioner is corroborated by the evidence of her father P. Nagendrappa. It was argued by the Advocate that in the evidence 9 FCA34.97.sxw of both the witnesses, they have not specifically stated that it was a demand by her husband and therefore, it cannot be a case of cruelty by husband. These submissions of the learned Advocate for the respondents are not correct as the evidence is required to be appreciated in proper perspective and its entirety. 8 We have gone through the cross-examination of the witness. Witness has given the reason for filing the petition for restitution of conjugal rights. Such a petition is generally filed by the party, who does not want to untie a matrimonial knot and is hopeful that the dispute can be resolved. Therefore, such recourse is taken by the parties. Father is always hopeful and has wishful thinking about the daughter’s happy married life, so his admission that his son-in-law is good person; cannot be taken as a rebuttal of the evidence tendered by the appellant and her father on the point of demand of money and desertion of the appellant by the respondent and his family members. Though these witnesses have not specifically mentioned about the demand of Rs.40,000/- made by the respondent, in the evidence, they have specifically and 10 FCA34.97.sxw repeatedly mentioned that Rs.40,000/- was demanded towards the dowry by the father, sister and respondent-husband has told her to go back to Adoni and not to stay with him. Cumulative effect and the tenor of the evidence shows that respondent was in agreement with his family members in the demand of Rs.40,000/-. On this background the submissions that the respondent and his family members had knowledge of the poor financial condition of the father of the appellant-wife and therefore demand of money was out of question and therefore cannot be accepted. We do not find substance in this argument. On the other hand, appellant at the time of marriage was aware of the joint family of the respondent and stayed there just for one & half month. She did not exaggerate and depose about physical violence or mental torture. However, she has denied demand of separate residence and has simply stuck to her version that as her father could not satisfy demand of Rs.40,000/-, she was not taken back and she was harassed and on that count, petitioner refused to take her back. Her evidence appears true and natural. It is mentioned that threat was given to her that if such demand is not fulfilled, then 11 FCA34.97.sxw respondent will get married to Papann’s daughter. Appellant also lodged a complaint against Papanna. 9 The fact of demand of separate residence and desertion is not at all proved by the respondent-husband. Demand of separate residence by wife itself is not a cruelty. Wife may have her views/dreams to set her matrimonial home in a particular way. To speak out of such idea of separate residence, it cannot be taken in hostility and cannot be labelled as cruelty. Indeed, if such idea is insisted beyond limits so as to compel the husband to bow to such demand, it would be a different matter. That evidence is lacking. Certain acts are done i.e not cooking food, not looking after children or not performing the duties as a family member; then it can be called cruelty. In the matrimonial companionship, difference of opinion is bound to be present and expression of different opinion is expected to be tolerated. Thus, demanding separate residence itself is not a cruel behaviour as contemplated under Section 13(1) (ia) of Hindu Marriage Act. Learned Judge has failed to appreciate the evidence in proper perspective. The 12 FCA34.97.sxw similar view is taken by the single Judge of the Delhi High Court in Om Prakash Vs. Smt. Rajni reported in AIR 1988 DELHI 107 in para-6. The same reads as under :- “Even if she had said so, this does not amount to cruelty. It is not that every time a wife says that the husband should live separately from his mother and the husband refuses to do so, it would be an unreasonable behaviour on the part of the wife and that it would amount to cruelty. A decision which affects both the parties and their children has to be taken together by the parties. It is the obligation of the parties to decide these questions by agreement, by give and take and not by the imposition of the will of the one over the other.” 10 We shall no revert to the second point weighed with the Family Court. It is a settled position of law that if false criminal case under Section 498-A is filed against the husband and his family members with a view to harass them, then it may itself be considered as a ground for divorce for causing cruelty. In the present case, the family members of the respondent were acquitted from the criminal case. But it cannot be said to be a false case lodged by the appellant.. Acquittal was not on merit but due to the statement made by the appellant before the Court. Our 13 FCA34.97.sxw attention was drawn to the evidence of the appellant. In the cross- examination, she admitted that the said case which was filed under Section 498-A was dismissed because she had made a statement to the Court that she was willing to go back and stay with the petitioner. This shows that the appellant did not pursue the relief. Though she has lodged a complaint for ill-treatment and harassment and demand of Rs.40,000/- and threat of 2nd marriage by the respondent-husband; she did not pursue her allegations to its logical end because of her fawn hope to get reconciled with the respondent. She really wanted to compromise and hope of smooth married life and therefore, this acquittal under Section 498-A cannot prove that the appellant had filed a false criminal case against the respondent. Hence, ruling in the case of V. Bhagat Vs.D.Bhagat (MANU/SC/0155/1994) reported in AIR 1994 SC 710, is not of any use to the respondent. We may usefully place reliance on Chiranjeevi Vs. Smt. Lavanya reported in AIR 2006 ANDHRA PRADESH 269. In para-22, it is observed as under :- “The criminal case ended in acquittal on the ground that the prosecution failed to prove the case 14 FCA34.97.sxw against the accused beyond all reasonable doubt. The acquittal of the case is not on the ground of no evidence. It is settled law that nature of evidence required in a criminal case is of different standards and the same standards and proof is not required in civil proceedings. Therefore, mere acquittal of the appellant-husband and his parents in criminal case cannot be treated as instance which goes in favour of the appellant-accused to substantiate the plea of cruelty, on which a decree of divorce has been sought for.” 11 Thus the order passed by the learned Judge, allowing the petition and granting decree of divorce under Section 13(1) (ia) is required to be set aside. O R D E R Accordingly, this appeal succeeds. The same is allowed with costs. As a result the divorce petition filed by the respondent is dismissed. (MRS.MRIDULA BHATKAR,J) (A.M.KHANWILKAR,J) 15 FCA34.97.sxw