1 FCA NO.71/05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 71 OF 2005 WITH CIVIL APPLN.NO.6 OF 2009 IN FCA NO.71 OF 2005 Shri Upendranath Chandrabhushan Chaube .. Appellant /Petitioner Vs Smt.Neeta Upendranath Chaube .. Respondent Ms. Seema Sarnaik, Advocate for the appellant-husband. Ms.Veena Gawda i/b Mrs Kokila Karla, Advocate for the respondent-wife. CORAM : D.B.BHOSALE & M.L.TAHALIYANI,JJ. DATE : 06/09/2011. ORAL JUDGMENT : (Per D.B.Bhosale, J.) 1. This appeal preferred by the appellant-husband is directed against the Judgment and order dated 14.9.2004 rendered by the Family Court at Bandra, Mumbai in Petition No.A-1531 of 1997, whereby his petition for dissolution of marriage by a decree of divorce on the ground of cruelty has been dismissed. The respondent-wife's claim for maintenance has also been rejected in view of the dismissal of the petition for divorce instituted by the appellant-husband. 2. Briefly stated, the case, as disclosed in the appellant's evidence, is that the appellant and the respondent got married on 24.6.1991 according to the Hindu vedic rites. They have a T 2 FCA NO.71/05 daughter, by name, Prachi, born on 31.8.1992. They cohabited in the joint family for a period of about two years. For initial period, after the marriage the respondent's behaviour/conduct in the family was normal. Then she changed her attitude and started behaving rudely with her parents. After the marriage the respondent told the appellant that she had an affair with someone and only because her parents pressurized her, she agreed to marry him. She also told the appellant that she was not interested in him. The appellant was pursuing his education at the time of marriage and though he did not want to get married, at that stage, he agreed for the marriage to fulfill the desire of his parents. Soonafter the marriage, the respondent started picking up quarrels with him and his mother and made their life miserable. In view of her typical behaviour and conduct, the father of the appellant allowed them to stay separately in his Flat No.A-6/52, Evillion Green Field Co-operative Housing Society Ltd, Mahakali Caves Road, Andheri (E), Mumbai, as licensee and to lead a happy married life. Even after they started residing separately, the respondent's behaviour did not improve. She used to wake up late. Even at his parents place she used to wake up late and his mother had to cook for all. She never took any responsibility of the kitchen. Then she started 3 FCA NO.71/05 remaining out of the house and used to give false reasons for staying away till late night. The respondent used to leave the matrimonial home under the pretext that she was going to her parents at Mazgaon. Once he checked whether she was at her parents place when he found that she was not there and was seen in the flat at Andheri early in the morning. When the appellant inquired about her strange behaviour she allegedly told him that her paramour had come and she was not interested in the appellant. The respondent had once left the matrimonial home without informing the appellant for a period of eight months leaving behind their minor daughter with the appellant and that her whereabouts during this period were not known. She joined and completed the beautician course with a view to meet her friends. The appellant once told her to forget her premarital affair when she allegedly threatened him to involve in a case under section 498-A of IPC. She also started inviting her friend at home and take him in her bedroom in presence of the appellant. Several persons, according to the appellant, started visiting his house at late hours which affected him physically as well as mentally. Her behaviour forced him to leave Mumbai on 13.6.1996 and join one Ashram at Varanasi, UP, and stay there upto 4 FCA NO.71/05 2.11.1996. He came back to Mumbai at the request of the respondent's father and started residing with his parents. When there was a meeting arranged for settling the disputes between the two, it is alleged, she expressed her inability to perform the marital obligations and she expressed her desire to divorce the appellant. She also issued a letter to the Senior Inspector, MIDC Police Station, Mumbai on 16.7.1997 making baseless allegations against him. The appellant had replied the said letter through his advocate on 23. 7. 1997. The respondent also started running a beauty parlour in their residential flat. This conduct of the respondent, according to the appellant, gave rise to a reasonable apprehension in his mind that it would be impossible for them to live together without mental agony or torture and hence he filed petition for dissolution of marriage on the ground of cruelty as provided for under section 13(1)(ia) of the Hindu Marriage Act, 1955 (for short, “the Act”). 3. We have heard learned counsel for the parties and with their assistance gone through the entire evidence and other material to which our attention was specifically invited in the course of arguments. Before hearing the petition on merits, we also made efforts to settle the dispute between the parties by making certain suggestions, which, we found, were not 5 FCA NO.71/05 acceptable to the parties and hence we proceeded to hear the appeal for final disposal. 4. At the outset, Ms Sarnaik, learned counsel for the appellant, invited our attention to the deposition of the appellant and so also to the depositions of the respondent and her brother to contend that the conduct of the respondent was sufficient to constitute cruelty within the meaning of section 13(1)(ia) of the Act. She submitted that though the allegations made by the appellant regarding the respondent's conduct are general in nature and/or no specific instances were mentioned either in the pleadings or in the appellant's deposition for seeking dissolution of marriage on the ground of cruelty, the cumulative effect of the facts and circumstances emerging therefrom are sufficient to draw an inference that he was subjected to mental cruelty due to the respondent's conduct. We will make fruther reference to the allegations, to which our attention was invited, in the later part of the judgment while assessing the evidence led by the parties in support of their case. On the other hand, Ms Veena Gowda, learned counsel for the respondent, submitted that no specific instance had been stated by the appellant in his evidence. All allegations made by him, either in the pleadings or in his evidence, are general in nature. The appellant also failed to examine any other witness in support of the allegations made 6 FCA NO.71/05 by him in the evidence. The Family Court, she submitted, has rightly dismissed the petition for divorce having found that the material placed on record by the appellant was not sufficient to constitute cruelty as contemplated by section 13 (1)(ia) of the Act. 5. The Supreme Court in V.Bhagat Vs. D.Bhagat, 1994 AIR SCW 45, while dealing with the concept of “mental cruelty” in paragraph 17 of the judgment, observed thus : "Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be decided in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made." 6. In Shoba Rani V Madhukar Reddi, (1998) SCC 105, the Supreme Court had an occasion to examine the concept of 7 FCA NO.71/05 cruelty. In this case, the Supreme Court has interpreted the word "cruelty". The "cruelty" which has not been defined in the Act, though it has been specifically used in section 13(1)(ia) of the Act. The Supreme Court observed that "the cruelty is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be inquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been 8 FCA NO.71/05 no deliberate or willful ill-treatment". 7. Keeping in view the concept of “mental cruelty” interpreted by the Supreme Court, we proceed to record our reasons for affirming the judgment of the Family Court, impugned in the present appeal. We have perused the depositions of all witnesses examined by the parties and the pleadings with the assistance of the learned counsel appearing for them. The appellant sought a decree of divorce relying upon the instances quoted by him in his deposition. In short, the instances/grounds stated by the appellant in his evidence, which, according to him, form the basis for seeking dissolution of the marriage on the ground of cruelty, are as follows: (i) within short time after the marriage the respondent changed her attitude and started behaving rudely with the appellant's mother; (ii) she used to wake up late in the morning and avoided to prepare food; (iii) she misbehaved with the appellant; (iv) after they started residing separately, for a period of 2-4 months, her behaviour was normal and then again she resorted to her usual behaviour; (v) she told the appellant that she had affair with someone before her marriage and that she was forced to marry the appellant against her wish; (vi) she never used to cook food in the morning and that the appellant used to leave for his clinic without eating anything at home; (vii) she did a 9 FCA NO.71/05 course of beauty parlour only with a view to meet her friends and her paramour; (viii) she used to return home late night and illtreat their daughter-Prachi; (ix) she used to invite her friends at home late night and take them to her bedroom in his presence; (x) In 1994, she left the matrimonial home for a period of eight months leaving behind the daughter-Prachi and that her whereabouts were not known to anyone during this period; (xi) she used to frequently visit her parents house at Mazgaon; (xii) her conduct forced him to leave Mumbai and go to Varansi to work with a charitable organisation- Avdhoot Bhagwanram Kust Sevashram between 30.6.1995 and 2.11.1996; (xiii) even after he returned from Varansi her conduct causing cruelty to him continued; (xiv) she sent a notice in June 1997 through her advocate, addressed to the MIDC Police Station making false allegations against him (Exhibit-31). 8. The respondent was grilled in the searching cross- examination. However, in our opinion, at no stage her evidence had been impeached or shattered in the cross-examination. The appellant, after narrating the aforementioned instances/grounds for seeking divorce in the examination-in-chief, in cross- examination about the respondent's friends visiting their matrimonial home late night, stated that on one occasion he 10 FCA NO.71/05 tried to drive her friends out of their house with the help of security man. He further stated that when such an attempt was made the respondent threatened him. Further, in the cross- examination, it was stated that he did not have any personal knowledge about the persons visiting their residence in his absence. Then, he stated that she left the matrimonial home in 1994-1995 for a period of eight months without informing him and that her whereabouts during this period were not known to him or any other person in the family. However, he did not give the exact period/date when she left the matrimonial home. He admitted in the cross that he did not make any efforts to trace the respondent or give missing complaint to police. Then, he specifically stated in the cross-examination that when the respondent came back after eight months, he was not at home and that he had also left Mumbai and went to the Ashram at Waranasi immediately within a period of one month after she left the matrimonial home. Though he stated so many things in his evidence he did not give any particulars nor did he place any material or examined any witness in support thereof. 9. The respondent in her deposition has denied all the allegations made against her by the appellant. She denied that she married to the appellant under pressure. She stated that Rs.2,50,000/- were paid at the time of marriage as Tilak amount 11 FCA NO.71/05 by her father. According to the respondent, after the birth of their daughter–Prachi, the appellant as well as other family members started illtreating her merely because she gave birth to a girl child. She specifically denied the allegations that she used to come home late night, bring her friends at home and take them to bedroom, and that she had left the house for eight months. She has stated that as a matter of fact the appellant wanted to drive her out of the matrimonial home and, therefore, he deserted her and did not pay any maintenance. We have perused her cross examination also. In our opinion, the appellant could not elicit anything so as to discredit her testimony. She has denied that she ever instructed her advocate to write in the reply at Exhibit-39 that she was willing for divorce by mutual consent if the appellant gives her a flat for her residence. The respondent's brother Chandrashekhar Choube in his evidence has, by and large, corroborated the deposition of the respondent. Even after cross examination, the appellant could not elicit anything so as to impeach his oral evidence or the respondent's evidence. 10. Thus, from bare perusal of the entire evidence on record we did not find any specific instance quoted by the appellant in support of his case of cruelty. Out of the allegations made by the 12 FCA NO.71/05 appellant in the pleadings and in his evidence, the allegation against the respondent that she used to call her friends late night and take them to the bedroom in the presence of the appellant, is undoubtedly serious and if it is held to be proved, perhaps, would amount to cruelty as contemplated under section 13(1)(ia) of th Act and would also be sufficient to cause a reasonable apprehension that it would be harmful or injurious for the appellant to live with the respondent. Even the disclosure made by the respondent regarding her premarital affair and also her meetings with her paramour would amount to cruelty. However, except the bare words of the appellant making such allegations, he has not brought any material/evidence whatsoever on record in support thereof. He has not given any particulars of the paramour. It was possible for the appellant to examine either neighbour or security man in support of the allegations. The appellant has stated in his deposition that at one point of time he tried to drive out the respondent's friend out who visited their house late night with the help of a security man deployed by the society. He could have proved this instance by examining either the security man or any other person who could have stated about this instance. We cannot ignore the tendency of parties to matrimonial proceedings to make false allegations against each other to any 13 FCA NO.71/05 extent. Merely because the allegation is made and it is of serious nature cannot be held to be true and grant a decree of divorce on the basis thereof unless some evidence in support thereof is placed on record. The respondent-wife has denied all the allegations and more specifically the aforementioned allegations made by the appellant against her. Even while cross- examining the appellant, these allegations were challenged by the respondent. She stated that these allegations were made by the appellant against her only with a view to get rid of her. Even the allegation that she left the matrimonial home for a period of eight months, has also been denied specifically by the respondent. If this allegation was true, no normal human being would have kept quite for such a long time. The appellant did not either make any effects to find her whereabouts during that period, nor did he approach the police and lodge missing complaint. On the contrary, according to the appellant, he also left for Waranasi within one month after the respondent allegedly left her house, and he returned after more than five months and, that too, because the father of the respondent persuaded him to come back. Thus, we find that the allegations made against the respondent, for seeking divorce on the ground of cruelty, have not been proved by the appellant and seem to be false/concocted. Insofar as other allegations are concerned, 14 FCA NO.71/05 in our opinion, they are not sufficient to constitute cruelty. The conduct of the respondent was not of such a character and gravity so as to give rise to reasonable apprehension in the mind of the appellant that it would 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. In other words, on the basis of the other allegations, it cannot be stated that the respondent's conduct was such that no reasonable person would tolerate it. It is well settled that 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 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 or are false/concocted. In our opinion, the allegations which were grave and weighty, were not proved by the appellant at all. 11. It is true that the approach of the court should be to take cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other. The situation, 15 FCA NO.71/05 however, must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. In the present case, cumulative effect of the facts and circumstances and/or of the grave and weighty allegations emerging from the evidence of the appellant cannot be taken into consideration so as to hold that the appellant was subjected to mental cruelty since the nature of allegations is absolutely vague. He did not examine a single witness in support of his case. It was possible for the appellant to examine atleast one of his family members in support of his case or neighbour or the security man. Having failed to do so, the appellant cannot be stated to have proved the allegations in support of his case.Thus, in our opinion, the ground of cruelty has not been proved by the appellant in the present case. The trial Court has considered the evidence in proper perspective and has rightly dismissed the petition filed by the appellant. In the result, the Appeal is dismissed. The judgment and decree dated 14.9.2004 of divorce under section 13(1)(ia) of the Act is confirmed. The appellant shall continue to pay the maintenance as awarded by this court vide order dated 19.4.2010 in Civil Appln. No.6 of 2009 in Family Court Appeal No.71 of 2005 till the respondent is allowed to resume cohabitation. Civil Appln.No.6 of 2009 is accordingly disposed of. If the appellant does not allow the 16 FCA NO.71/05 respondent to resume cohabitation it would be open to the respondent to seek enhancement of maintenance by filing appropriate proceedings before the Family Court. (M.L TAHALIYANI,J.) (D. B.BHOSALE, J.)