: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.27 OF 2006 Mr. Suryakant Ramchandra Awaghade R/at S. No.75/5, Shantinagar, Near Shinde Chhatri, Wanowrie, Pune – 411 040 .. Appellant (Orig. Petitioner) V/s. Mrs. Vidya Suryakant Awaghade R/at – C/o. Bharat Dnyanu Badekar, 180, Malhar Peth, Near Police Headquarter, Satara – 415 002. .. Respondent (Orig. Respondent) ......... Mr. A.M. Joshi with Mr. S.D. Rayrikar for appellant. Mr. Uday P. Warunjikar for respondent. ....... CORAM : D. B. BHOSALE & R.Y.GANOO, JJ. MARCH, 11th 2010. JUDGMENT : (Per R.Y. Ganoo, J) 1. Being aggrieved by the judgment and decree dated 18th June, 2005 passed by the learned Judge of the Family Court, Pune (hereinafter referred to as the learned trial Judge) in Petition No.A-274 of 2004, the : 2 : appellant husband has filed this appeal. Few facts necessary for the disposal of this appeal, are as under. 2. The appellant-husband got married with respondent-wife on 27th June, 1993 at Satara as per Hindu Vedic rites. Out of the said wedlock, respondent gave birth to three children namely Kum. Jyoti, Chi. Arvind and Chi. Ajay. The appellant filed the aforesaid Petition No. A-274 of 2004 for divorce under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as the said Act). The appellant claimed that the conduct of the respondent qua the appellant amounted to cruelty and that is how he is entitled to a decree of divorce under Section 13(1)(ia) of the said Act. In order to claim divorce on the ground of cruelty, the appellant alleged that the behavior of the respondent was not proper in as much as she used to insult the parents of the appellant and she used to abuse the appellant to such an extent that she used to suggest that if the appellant dies while driving Rickshaw, she will marry again. According to the appellant in 1995 the respondent left the house alongwith her uncle and when appellant went to get back the respondent, he beat her. It was also alleged that the respondent-wife has left the house alongwith the children on 11th January, 2001 against the wishes of the appellant when the appellant was in mourning. It was also the case of the appellant that : 3 : there was a dispute between the appellant and the respondent on the question of sum of Rs.50,000/- being the amount spent on treatment of father of the appellant before his death. In substance, the appellant alleged that the behavior of the respondent was such that it amounted cruelty upon him. 3. Insofar as the ground for divorce under Section 13(1)(b), namely desertion on the part of respondent is concerned, it was alleged by the appellant that the respondent left the matrimonial home on 11th January, 2001 without informing the appellant and without any sufficient cause and did not join the appellant for cohabiting, though efforts were made by the appellant for restoring the relationship between him and the respondent. 4. The respondent filed the written statement and opposed the claim of the appellant. The respondent denied the various allegations levelled against her and prayed for dismissal of the petition. 5. The learned trial Judge framed following issues :- “1. Whether petitioner proves that respondent treated him with cruelty as contemplated under Section 13(1)(ia) of the Hindu Marriage Act? 2. Whether petitioner proves that respondent deserted him : 4 : continuously for a period of two years before filing of the petition? 3. Is there any legal bar under section 23 of Hindu Marriage Act? 4. Whether petitioner is entitled for decree of divorce as prayed? 5. What order and decree?” 6. The learned trial Judge after considering the evidence on record dismissed the petition. Hence, this appeal. 7. At trial, the appellant examined himself as PW-1. He examined his neighbour Dattoba B. Jagtap as PW-2. The appellant examined his mother Smt. Tulabai as PW-3. The respondent gave evidence in support of the case as mentioned earlier. The learned trial Judge dismissed the petition. He held that the appellant could not discharge the burden cast on him to say that the respondent treated the appellant with cruelty and that the respondent had deserted the appellant. 8. Apart from the aforesaid petition for divorce by the appellant, certain other proceedings were instituted by appellant as well as respondent. According to the appellant, the respondent left the matrimonial home on 11th January, 2001. The appellant on 28th January, 2001 instituted petition for restitution of conjugal rights in the Family : 5 : Court at Pune being P.A. No.70 of 2001. Said petition came to be dismissed on merits by judgment and decree dated 5th October, 2002. No appeal has been preferred by the appellant against the said judgment. The respondent instituted petition No.40 of 2001 in the Family Court at Pune for judicial separation on 30th January, 2001. Said petition came to be withdrawn by her at a later point of time. The respondent on 20th October, 2002 filed Misc. Application No.303 of 2006 under Section 125 of Code of Criminal Procedure in the Court of Judicial Magistrate First Class at Satara seeking maintenance for herself and for three children. In the said application, the appellant and the respondent filed a joint pursis. Said pursis is at Exh.76 in the proceedings at trial Court. In the said pursis it was stated that appellant and the respondent would stay together happily as husband and wife and nobody else will interfere in their matrimonial life. This pursis was filed on 23rd September, 2003. On the said application, said Court passed an endorsement, as follows. “Both parties have decided to cohabit with each other. So couple is sent for cohabitation on trial basis.” 9. Pursuant to this pursis appellant and respondent started residing together with effect from 23rd September, 2003, however, the respondent left the house of the appellant on 29th September, 2003 contending that the appellant had assaulted her and driven her out of the house. : 6 : 10. We have heard learned advocate Mr. Joshi appearing on behalf of the appellant and learned advocate Mr. Warunjikar appearing on behalf of the respondent. We have gone through the evidence on record and various exhibits and in particular, exhibit no.76. Learned advocate for the appellant contended that the evidence led by the appellant through his witnesses as well as evidence of the respondent would show that the appellant has proved that the respondent had treated the appelant with cruelty. He also submitted that since the respondent had left the appellant on 11th January, 2001 without reasonable cause and had failed to join the matrimonial home, thereafter despite repeated efforts made by the appellant to get the respondent back, the appellant has proved that the respondent had deserted the appellant. Learned advocate for the appellant submitted that the learned trial Judge failed to appreciate the evidence as regards to the question of cruelty and desertion in the proper perspective and he wrongly arrived at conclusion that the appellant and the respondent had started staying together on 23rd September, 2009 thereby condoning the acts of cruelty qua the appellant. He also submitted that the conclusion arrived at by the learned trial Judge on the question of desertion is required to be reconsidered because the appellant made every effort to get back the respondent in as much as appellant had filed the : 7 : petition for restitution of conjugal rights which wrongly came to be dismissed. He pressed for a decree of divorce as prayed for. 11. Learned advocate for the respondent submitted that the appellant contacted the respondent on phone on 11th January, 2001 and 16th January, 2001 and requested her to came back to his residence. According to him this will clearly go to show that the appellant had condoned the alleged acts of cruelty. He had further submitted that appellant had issued notice dated 17th January, 2001 through his advocate calling upon the respondent to come and stay with him. He also submitted that on 28th January, 2001, the appellant had filed petition being P.A. No.70 of 2001 for restitution of conjugal rights in the Family Court at Pune. According to him, these two acts clearly indicate that the appellant condoned the acts of cruelty qua the appellant and hence the appellant is not entitled to divorce. He further pointed out that on account of compromise between the appellant and the respondent, they started staying together w.e.f. 23rd September, 2003 as manifested in Exh.76 and it is only because of ill- treatment meted out by the appellant to the respondent on or after 23rd September, 2003, the respondent had no alternative but to leave the house on 29th September, 2003. Thus, according to the respondent the stay of the appellant and the respondent between 23rd September, 2003 to : 8 : 29th September, 2003 had the effect of condoning acts of cruelty qua the appellant. Learned advocate for the respondent had submitted that pursis at Exh.76 clearly indicates that parties had resolved to stay together as husband and wife forgetting the past and that is how the learned trial Judge rightly interpreted the text of the pursis (Exh.76) and came to the conclusion that the appellant has condoned the alleged acts of cruelty. 12. Without prejudice to the aforesaid submissions, learned advocate for the respondent had submitted that even if it is said that the appellant and the respondent stayed together between 23rd September, 2003 to 29th September, 2003, the appellant has not placed on record any specific overtact on the part of the respondent to say that the cruelty alleged to have been practiced upon the appellant by the respondent got revived. He submitted that there is no evidence to that effect and to that extent the appellant has failed to make out a ground to get divorce on the ground of cruelty. 13. Insofar as the question of desertion is concerned, he submitted that once the appellant and the respondent stayed together between 23rd September, 2003 to 29th September, 2003, the appellant would not be entitled to get a decree on the ground of desertion. : 9 : 14. Learned advocate for the appellant had submitted that the appellant had instituted the petition for restitution of conjugal rights being petition No.70 of 2001 and in the written statement to the said petition, the respondent had made various averments which amounted to cruelty. Learned advocate for the appellant in support of this submission had taken us through para 7 of the petition for divorce being the petition involved in the present appeal and had submitted that those averments constitute cruelty upon the appellant and as such the appellant ought to have been granted divorce. 15. Learned advocate appearing on behalf of the respondent in reply to the aforesaid submission had submitted that in para 7 or any other part of the petition for divorce, the appellant has not stated as to which portions of the written statement filed to Petition No.70 of 2001 constitute serious, wild and reckless allegations against the appellant. According to him in the absence of specific reference to the text of averments in the written statement appellant is not entitled to divorce on the ground of cruelty. According to him, the specific averments which were treated by the appellant resulting into cruelty ought to have been specifically pleaded in the petition so that the respondent could have dealt with those averments in the petition by which the appellant wanted to have divorce. : 10 : 16. It is the case of the appellant that the respondent treated the appellant with cruelty on various counts and left the matrimonial home on 11th January, 2001. It is admitted by the appellant in the body of the petition that after the respondent left the house on 11th January, 2001, he telephoned her on that day and he also telephoned her on four occasions on 16th January, 2001. By these telephone calls, the appellant requested the respondent to cohabit with him, however respondent did not accept the said request. It is further admitted by the appellant that the appellant issued advocate’s notice dated 17th January, 2001 to the respondent calling upon the respondent to cohabit with him. As the respondent did not comply with the said request, the appellant filed petition for restitution of conjugal rights in the Family Court at Pune being petition No.70 of 2001. No doubt, the said petition came to be dismissed on 5th October, 2002. However, on account of institution of the petition on 28th January, 2001 for restitution of conjugal rights, it will have to be treated that the appellant condoned the acts of the respondent on the basis of which the appellant had approached the Court for divorce. It is to be mentioned that after 11th January, 2001, the appellant and the respondent stayed together from 23rd September, 2003 with a view to start a new life. No doubt, the stay lasted for only 6 days i.e. upto 29th September, 2003, : 11 : however, the stay of the respondent with the appellant amounted condoning the cruelty said to have been practiced by the respondent upon the appellant. We have perused the impugned judgment and on the aspect of condonation of cruelty, the learned trial Judge has arrived at appropriate conclusion. The appellant and the respondent tendered a joint pursis (Exh.76) in the Court of Judicial Magistrate First Class, where the application for maintenance filed by the appellant and respondent was pending and pursuant to the said pursis (Exh.76) started staying together as husband and wife. Shri Joshi, learned advocate for the appellant had drawn our attention to the endorsement passed by the learned Judge on the said application and had contended that the appellant and the respondent were sent up for cohabitation on trial basis. He, therefore, wanted this Court to treat the said stay as a stay on trial basis and according to him, the said stay should not be treated to mean that the appellant had condoned the cruelty practiced by the respondent. Insofar as this aspect is concerned, we have considered text of the pursis at Exh. 76. The said pursis clearly manifests the intention of the appellant and the respondent to stay happily on or after the date of the pursis. It is to be noted that the learned Judge may have used the word “on trial basis”, however, the pursis nowhere mentions that the parties wanted stay together on trial basis. In our view, the pursis at Exh.76 will have to be : 12 : read in the context of the desire of the appellant and the respondent as manifested in the body of the pursis and not on the basis of the endorsement passed by the learned Judge. In view of the above discussion, we hold that the stay of the appellant and the respondent was not on the trial basis. We, therefore, hold that the stay of the respondent with the appellant on or after 23rd September, 2003 had the effect of condoning the cruelty alleged by the appellant. 17. In view of the aforesaid discussion, the appellant would not be entitled to divorce on the ground of cruelty. To that extent the findings and the observations of the trial Court are required to be confirmed. 18. We are not inclined to accept the submission of learned advocate for respondent that wild and serious allegations in the written statement to Petition No.70 of 2001 constituted cruelty. In order to claim divorce on the ground that allegations in the written statement in some other proceedings constituted cruelty it was necessary for the appellant to mention in the body of petition for divorce as to which averments amounted to wild and serious allegations against the appellant and consequently constituted as a cruelty. In our view, mere averments as put up in para 7 by itself are insufficient. In our view, in the absence of such : 13 : averments, argument advanced by the learned advocate for the appellant, divorce cannot be granted. Hence, the appellant would not be entitled to a decree of divorce on the ground of cruelty. 19. The respondent left the house of the appellant on 11th January, 2001. The petition for divorce was filed on the ground of desertion on or about 28th April, 2004. The subsequent development viz. the respondent residing with the appellant in terms of pursis at Exh.76, would clearly indicate that the appellant would not be entitled to a decree of divorce on the ground of desertion. We have considered the observations of the learned trial Judge by which he has dealt with the ground of desertion and we see no reason to take a different view. 20. In view of the aforesaid discussion, we hold that the impugned judgment requires no interference and the appeal is required to be dismissed. Accordingly, appeal is dismissed, however, there shall be no order as to costs. [R.Y.GANOO, J.] [D.B. BHOSALE, J.]