: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.61 OF 2005 IN PETITION NO.A-1646 OF 1998 Sushma N. Mistry C/o. Harshad Trivedi (Advocate High Court), 41, Prospect Chamber Annexe, 3rd Floor, Dr. D.N. Road, Fort, Mumbai .. Appellant v/s. Mr. Nalin S. Mistry Flat No.7, Indralok ‘B’, Old Nagardas Road, Andheri (E), Mumbai – 69 .. Respondent ........ Mrs. Manjula Rao with Kokila Karla for appellant None for the respondent ........ CORAM : D.B. BHOSALE & R.Y.GANOO, JJ. DATE : 28th JANUARY, 2010. ORAL JUDGMENT : (PER D.B. BHOSALE, J) 1. This appeal is directed against the judgment and order dated 26. 5.2003 rendered by the Family Court in Petition No. A-1646 of 1998 : 2 : whereby the petition filed by the appellant wife for divorce on the ground of cruelty has been dismissed. 2. The petitioner and the respondent got married on 07.02.1987 at Valsad as per Hindu rites and rituals. There are two issues, namely Hetal and Jignesh, from this wedlock. They stayed together as husband and wife for a period of 10 years. They parted company of each other last on 4.6.1996. On 4.6.1996, the respondent-husband went to Saudi Arabia leaving the appellant-wife in the matrimonial home along with her father- in-law and two children. He returned to India on 16.9.1997 and again went back to Saudi Arabia on 5.12.1997. It appears that thereafter, there were some incidents of the alleged indecent behavior on the part of the father-in-law, which, the appellant states that she had informed to the respondent some time in March, 1998. The respondent- husband thereafter, shifted the appellant to leave and license premises. There was some understanding between the two and as a part thereof, the children continued to stay with the father-in-law. After the leave and license agreement period got expired, it was not renewed further and as a result thereof, the respondent-wife had to vacate the leave and license premises provided by the respondent-husband and she shifted to her parent’s house. This all happened in 1998. Since then, till today the appellant does not : 3 : know whereabouts of her husband and children. It is against this backdrop, she was forced to file petition for divorce on the ground of cruelty. It appears that this Court vide order dated 25.6.2008, passed in Civil Application No.21 of 2008, had taken assistance of the learned APP Ms. Kantharia to find out whether the respondent-husband alongwith his children had left India. The assistance of the learned APP was sought in view of the allegations made by the appellant-wife that she never signed the application for passport made on behalf of the children, and the respondent-husband forged her signatures. It further appears that a missing complaint was also lodged with the police by the father of the respondent-husband. This all shows that the respondent-husband alongwith the children has either left India permanently, or his whereabouts could not be find out. She made all possible efforts to find whereabouts of her children but her efforts were in vain. 3. It appears that till this date, whereabouts of the children and the respondent-husband are not known and in view thereof, we have heard learned Counsel for the appellant and with her assistance, perused the entire material on record. She submitted that though the issue whether the respondent-husband treated the appellant-wife with cruelty has been answered by the Family Court in the affirmative, the Family Court has : 4 : refused to pass a decree of divorce holding that the appellant-wife condoned the acts of cruelty, which finding is not consistent with the evidence on record. 4. We have perused the impugned judgment and the material on record. The respondent-husband, though was served and filed written statement in the petition, did not appear before the Family Court and as a result thereof, the Court had to proceed against the respondent ex-parte. The Family Court framed the following issues; (i) Whether the petitioner proves that the respondent has after solemanisation of marriage treated her with cruelty ? (ii) Is petitioner is entitled to a decree of divorce ? 5. The Family Court after recording evidence of the appellant answered the first issue in the affirmative and the second issue in the negative. In view thereof and in view of the fact that the respondent husband has not came forward to challenge the said finding, we proceed to examine whether the learned Judge of the Family Court was right in answering the second issue in the negative. The second issue was answered in the negative holding that though the appellant made out a case for divorce on the ground of cruelty, she is not entitled for a decree of divorce, since she by her conduct condoned the acts of cruelty. It would be advantageous to : 5 : reproduce paragraph 11 of the judgment wherein the learned Judge of the Family Court has recorded this finding. Paragraph 11 reads thus ;- “11. In the present case, most of the allegations of cruelty made by the petitioner-wife against the respondent-husband, relates to the period prior to June 1996. The petitioner has made allegations against the mother-in-law, who expired in the year 1994. The petitioner has also made allegations against the father-in-law, with whom she has stayed till June, 1996. She has also made allegations against her sister-in-law, who is married and staying in U.S.A. In June 1996, as admitted by the petitioner herself, the respondent had arranged for separate residence for the petitioner, children and the respondent. In her deposition, the petitioner herself has stated as under: “I then requested the respondent and compelled the respondent to make an arrangement for separate resident. The respondent against his wish and desire allowed me to obtain residential accommodation on ‘Leave and License’ for 11 months. The respondent again went to Saudi Arabia on 4.6.1996. The petitioner has further stated that : “The respondent again came to India on 16.9.1997 to make some final arrangement. He stayed in India for 3 months. He used to stay with his father during the day time and at night he used to come to satisfy his sexual desire.” All this shows that after June, 1996 till 5.12.1997, on which date the respondent went out of India for his job, the parties have lead normal married life. In view of the observations of the Apex Court in the case of Dastane Vs. Dastane (Supra), I hold that the present petitioner, who was having number of complaints against the respondent as well her in-laws, had preferred to stay with the respondent and has, therefore, condoned the acts of cruelty. In this view of the matter, I hold that though the petitioner has made out the ground of cruelty, she is not entitled to decree of divorce as prayed for by her. I have, therefore, answered the Issue No.2 in the negative.” (emphasis applied) : 6 : 6. We have heard learned Counsel for the appellant and with her assistance perused the entire evidence and more particularly paragraphs 9 to 16 of the appellant’s deposition to which our attention was specifically drawn. Learned Judge in para 11 of the judgment has reproduced only small portion of paragraph 12 of her examination-in-chief. It would be relevant to reproduce the remaining portion of para 12 along with paragraphs 13,14,15 and 16, which reads thus;- “12. ..... He was behaving like an animal. When I requested him to behave properly, the respondent told me that he has to live without sex at Saudi Arabia for more than a year. Therefore, he can not control himself. However, it was a great shock and surprise when respondent informed me that due to death of his mother his father has became lonely. He is a human being and therefore he need sex. He can not go outside, as there is a fear of ‘AIDS’ and family prestige. He further informed me that since respondent is also not going to remain in India, during his absence, I should allow his father Mr. Shantilal Mistry to have sex with me. 13. The respondent therefore, informed me that there is nothing wrong and heaven is not going to fall if I allow his father to have sex with me. The respondent further informed me that even his own sister who is staying in London had consider the need of his father during her last visit to India, and she allowed his father to have sex with her. It was unbearable and unimaginable truth for me to known that daughter allowed her own father to have a sex with her. I specifically and categorically refused to do that and not allowed father of the respondent to have sexual relation with me. 14. On 27.10.97 the respondent and his elder sister named as : 7 : Rekha tried to convince me, that I should stay with my father-in- law. I disagree with them I informed them that I will now inform my parent about this talk. The respondent and her sister suddenly got angry and assaulted me with wooden chair very rudely and threaten me, that if I will say anything to anybody then I will be driven out of the house and I will have to face serious consequence. I was assaulted very rudely and badly that I could not stand up for about 2 to 3 days and no medical treatment was given to me. 15. The respondent then prepared a General Power of Attorney and informed me, that I should sign on the said Power of Attorney and give all my legal power like operation of Bank Account etc. to buy or sale of any property etc. to the respondent’s father. I refused to sign on the said Power of Attorney, then again I was assaulted by the Respondent very rudely. 16. The respondent, therefore, with view to compel me to stay with his father, did not make any arrangement for residence though license period was to expire in March, 1998 and left India on 5.12.97. Ultimately, by fax letter dated 7.3.98 finally I placed facts on record. I am producing the said fax which is marked as Exhibit “B” and Exhibit “B-1” is English translation of the said letter. The respondent by his letter dated 10.3.98 replied the said fax which is marked as Exhibit - “C” and Exhibit “C-1” is English transalation of the said letter and finally informed me that I will have to live with his father. With the result on date of expiry of license period of the flat where I was living, I had to leave the said flat. The respondent father and sister forcibly took away both the children, so that I may be compelled to live with the respondent father.” 7. From bare perusal of the testimony of the appellant in paragraphs 12 to 16, it is clear that she was subjected to cruelty even after 05.12.1997 and by no stretch of imagination, it could be said that she condoned the : 8 : acts of cruelty as observed by the Family Court. 8. In the circumstances, we are satisfied that the findings recorded by the learned Judge of the Family Court in paragraph 11 of the judgment are wrong, illegal and must be set aside, and her petition deserves to be allowed. 9. During the pendency of this appeal, though there was an order of maintenance passed by the Family Court, the appellant was not paid maintenance by the respondent-husband. Even in this appeal, the respondent husband chose not to appear though he was served by substituted service. The appellant and the respondent had purchased a flat at Shristhi Residence Complex, Mira Road bearing flat No.B-11, in the joint names. This flat was initially given on leave and license and since 1998 it was lying vacant. Since, the appellant is not having any source of income, she could not pay the outgoings / maintenance of the Society and as a result thereof, the Society had issued notice to the appellant asking her to pay the arrears of maintenance to the Society. The arrears of maintenance / outgoings of the society were Rs.1,90,100/-. Similarly, the accumulated maintenance amount, which the respondent-husband was liable to pay to the appellant, is also about Rs.2,24,000/-. Since the : 9 : appellant has no independent source of income, she sought permission of this Court to sale the flat and pay the society outgoings from the sale proceeds and also to adjust a part thereof towards the arrears of her maintenance. Such permission was granted by this Court on certain terms and conditions and accordingly the flat was sold for an amount of Rs. 31,75,000/- to one Mrs. Meena Jha. After the sale of the flat, the sale proceeds were deposited in this Court, after deducting Rs.1,90,100/- dues of the society, plus transfer charges of Rs.12,500/-, and the charges of the pay order of Rs.12,000/-. Thus, the amount that was deposited in this Court was Rs.29,60,400/-. Since the claim of the appellant that the flat was jointly owned by both the spouses, remained unchallenged, she, in our view is entitled for 50% of the sale proceeds, from this (Rs. 29,60,400/-) amount. Fifty percent of the total amount deposited in the Court would be Rs.14,80,200/-. From the remaining amount of Rs. 14,80,200/- of the respondent’s share, the appellant is entitled for the arrears of maintenance for the period commencing from October, 2000 to January, 2010. The total arrears for this period are Rs.2,24,000/-. She is also entitled for Rs.39,700/-, the amount which she was required to pay as brokerage for selling the flat, and the amount of Rs.18,917/- spent for publication of the substituted service. The appellant, thus, is entitled for Rs.2,82,617/- (Rs.2,24,000+Rs.39,700+Rs.18,917) and after deducting : 10 : this amount from the respondent’s share (i.e. Rs.14,80,200/-), the remaining amount of Rs.11,97,583/- can be invested in fixed deposit for a period of 7 years in a nationalised bank and with the provision to pay quarterly interest to the appellant-wife towards her furture monthly maintenance. A Long Term Capital Gain (Tax Saving) Bonds, which were directed to be purchased of Rs.7,00,000/- vide order dated 2nd January, 2009 can also be directed to be handed over to the appellant-wife, forming the part of her share of Rs.14,80,200/-. In the result, we pass the following order: (i) The judgment and order dated 26.5.2003 passed by the Family Court in Petition No.A-1646 of 1998 is set aside. The marriage of the appellant and the respondent is hereby dissolved by a decree of divorce on the ground of cruelty, as provided for under Section 13(1)(ia) of the Hindu Marriage Act, 1955. The decree be drawn accordingly. (ii) The respondent is allowed to withdraw a sum of Rs.14,80,200/- including the Long Term Capital Gain (Tax Saving) Bonds of Rs.7,00,000/- (with accumulated interest, if any) i.e. Rs.7,00,000/- Long Term Capital Gain (Tax Saving) Bonds plus Rs.7,80,200/- = Rs.14,80,200/-. (iii) The respondent is also allowed to withdraw the sum of Rs. : 11 : 2,82,617/- from the appellant’s share of Rs.14,80,200/-. The remaining amount of Rs.11,97,583/- is directed to be invested in fixed deposit for a period of 7 years in a nationalized bank with liberty to the respondent- wife to withdraw quarterly interest on the said amount. (iv) If the respondent-husband does not come forward to claim the amount of Rs. 11,97,583/- of his share within a period of 7 years from today, the appellant-wife will be entitled to withdraw the said amount towards her future alimony. The respondent, however, shall not be allowed to withdraw the said amount without prior notice to the appellant. (v) The accrued interest, if any, on the amount which was invested in pursuance of the order of this Court dated 27.01.2009, shall be paid to the appellant-wife. Appeal is disposed of. No costs. . All Civil Applications are disposed of. [R.Y.GANOO, J.] [D.B. BHOSALE, J.]