IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 2862 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE N.G.NANDI and Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? NEELAM DIPAK KHATWANI Versus DIPAK KANAYALAL KHATWANI -------------------------------------------------------------- Appearance: 1. First Appeal No. 2862 of 2000 MR GJ ASRANI for Petitioner No. 1 MR WA URAIZEE for Petitioner No. 1 MR SURESH M SHAH for Respondent No. 1 MR MEHUL S SHAH for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE N.G.NANDI and MR.JUSTICE H.K.RATHOD Date of decision: 20/09/2002 CAV JUDGEMENT (Per : MR.JUSTICE N.G.NANDI) 1. This Appeal under Section 19 of the Family Court Act is preferred by the original respondent wife against the judgment & decree dissolving the marriage in Family Suit No. 73 of 2000 (Old HMP No. 449 of 1993 of City Civil Court, Ahmedabad) by the Family Court,Ahmedabad, under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act 1955; on the ground of cruelty and desertion by the appellant wife. 2. Facts leading to the filing of the present appeal shortly stated are, that the marriage between the petitioner husband and respondent wife was solemnised at Ahmedabad on 10-9-1989 as per Hindu Marriage Rites, and after the marriage the respondent came to reside with the petitioner in the joint family; that, prior to her marriage respondent was staying with her mother and brothers at Ajmer. It is the say of the petitioner that, after the marriage respondent never settled in the matrimonial home and was quarreling with petitioner creating mental tension to the petitioner. It is further alleged that the respondent wanted the petitioner to settle at Ajmer as she wanted to stay at Ajmer or at Bombay for the purpose of permanent settlement, but as it was not possible for the petitioner to leave the service and the city of Ahmedabad he could not accede to her desire. It is the further say of the petitioner that, as the respondent did not want to stay at Ahmedabad she all the time quarreled with the petitioner as well as other inmates of his house; that the respondent went to Ajmer with her mother on 11-12-1989 and returned in the month of January 1990 as the mother of the petitioner had expired as she was informed by the petitioner about the same. After the post death ceremonies were over, the respondent started same quarrels and misbehaved with the family members and insisted to permit her to go to Ajmer. That, in the month of March 1990 he was suffering from piles and had to undergo treatment and there was perfuse bleeding and was hospitalisd, in a private nursing home for ten days; that after discharge from the hospital he was advised to take rest, but during that period instead of serving the petitioner, respondent picked up quarrels with the petitioner and his family members for going to Ajmer to stay with her mother and brothers; thus the respondent behaved in a manner cruel to the petitioner. It is the further say of the petitioner that, when respondent complained about giddiness and sickness, she was advised to have treatment from a doctor in Ahmedabad, but she did not agree to consult the doctor in Ahmedabad and insisted to go to Ajmer and left for Ajmer with her elder brother on 15-6-1990; that, thereafter several attempts were made by the petitioner to bring respondent back to the matrimonial home but she did not return; that, respondent never tried to come back to matrimonial home to stay with the petitioner and discharge her matrimonial obligation and thus the respondent deserted the petitioner for more than two years immediately preceding the institution of Hindu Marriage Petition. It is further stated that, though the petitioner was likely to undergo surgery for piles she did not care for him and thereby caused great mental torture to the petitioner. It is alleged that, by not allowing the petitioner to enjoy marital happiness with her, as she left him, respondent has also caused physical and mental torture to the petitioner; that the petitioner served the respondent with a notice dated 30-10-1993 and the same was received by her, but she did not return to Ahmedabad. On these assertions petitioner filed the petition praying for decree for dissolution of his marriage with the respondent. 3. The respondent wife contested the petition by filing Written Statement vide exhibit-38 denying all the allegations made against her by the petitioner husband. The solemnisation of the marriage between he petitioner and respondent on 10-9-1989 at Ahmedabad according to Hindu Marriage Rites and prior to her marriage her stay with her mother and brothers at Ajmer has been admitted, and also the respondent having come to matrimonial home after her marriage and her stay with the petitioner in the joint family is also admitted. The allegations about her desire and insistence to stay at Ajmer or Bombay and thereby pressurising the petitioner to settle at Ajmer or Bombay have been denied. It is denied that she wanted to stay and settle with her brothers or sister. It is the say of the respondent that she was ill-treated by the petitioner and his parents as well as sister-in-law during her stay in the matrimonial home at Ahmedabad and that she was physically beaten by them. That the petitioner and his parents wanted more dowry from her parents, and therefore, they were not providing food and meals and she was starving; that, she was doing work for the family for the whole day & night, she was abused by the parents of the petitioner; that she went to Ajmer on 11-12-1989 for bringing more dowry from her parents, but she returned on 5-1-1990 as her mother-in-law had expired; that, at that time she had brought Rs.5,000/- and had given the same to the petitioner; that, she has always tried to help the petitioner during his illness in the hospital but she was not allowed to go to hospital by parents of the petitioner. It is also contended that she was ill-treated by parents of the petitioner and ultimately she was compelled to leave matrimonial home on 15-6-1990; that, since then she stays at Ajmer with her mother and brothers; that the petitioner has never tried to take her back to Ahmedabad but she herself had come with her brother Harish to Ahmedabad, but the petitioner refused her entry and not allowed to live in the house. It is further contended that all the allegations made by the petitioner are false. The Family Court at Ajmer has passed an order of maintenance ofRs.400/- per month vide order dated 2-2-1994 under Section 125 of Criminal Procedure Code. From the pleadings on record Learned trial Judge framed issues vide exhibit-40 and on appreciation of evidence Learned trial Judge granted the petition and dissolved the marriage solemnised on 10-9-1989 between the petitioner and respondent under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act. It is this decree and judgment dissolving the marriage between the appellant (original respondent) and respondent (original petitioner) which has been assailed in this appeal by the appellant wife. 4. As seen from the above, solemnisation of the marriage between the petitioner husband and respondent wife at Ahmedabad according to Hindu Marriage Rites and the respondent prior to her marriage staying with her parents at Ajmer, and after the marriage with the petitioner the respondent came to stay at Ahmedabad in the matrimonial home and stayed in joint family of the petitioner are admitted facts. It is also not disputed that the spouses parted physical company on 15-6-1990 and respondent went to her parental house at Ajmer with her brother. It is also an admitted position that during the piles ailment/sickness of the petitioner and during period of his hospitalisation and even thereafter respondent was in the matrimonial home. It is also suggested and not disputed by the petitioner that he did not undergo surgery for piles ailment after his hospitalisation of ten days for the said ailment. 5. We will first deal with the ground of desertion seeking decree for dissolution of marriage as provided under Section 13 (1) (i-b) of the Hindu Marriage Act. As far as the spouses parted physical company on 15-6-1990 is concerned, same is an admitted fact. In the petition it has been averred that the petitioner in order to avoid unpleasantness in the family, and tired of the attitude of the respondent, ultimately agreed that the respondent may go to her parents house with her elder brother and that she left for Ajmer on 15-6-1990. Before leaving on 15-6-1990 petitioner had once again requested the respondent to postpone her visit for few days as there was no family member in the house as wife of the elder brother of the petitioner had gone to Bombay but even this request had fallen on the deaf ears of the respondent and ultimately she left on 15-6-1990 for Ajmer out of her sweet-will and this caused great mental shock and that, since 15-6-1990 respondent has never returned to the matrimonial home nor cared to write any letter. The respondent continuously i.e. right from the time of her marriage with petitioner wanted to go to her parents at Ajmer or to her sister and brother-in-law at Bombay against the wishes and desire of the petitioner and his family members. That the respondent always kept at her mind about her parental home at Ajmer and always told the petitioner to send her to Ajmer or her sister at Bombay and the respondent ultimately left the matrimonial home in June 1990 and thereafter never returned to her matrimonial home. That the petitioner had also telephonically asked the respondent and her family members to send respondent back to the matrimonial home, but on the contrary, instead of sending respondent to her matrimonial home, application claiming maintenance was filed and harassed the petitioner and his family members. That on one occasion the respondent wanted treatment for difficulty with her eye lenses and though all the facilities were available at Ahmedabad, even then respondent insisted for going to Bombay and despite the request for taking treatment at Ahmedabad the respondent insisted for going to Bombay for the reasons best known to her and only in order to avoid any quarrel and unpleasantness in the family, petitioner permitted her to visit her parents at Ajmer, but thereafter, she did not return and permanently left and deserted the petitioner with an intention not to stay & fulfill matrimonial obligation towards the petitioner. Respondent wife in her written statement has contended that, she was not kept happy by the petitioner and she was subjected to mental & physical cruelty and lastly she was compelled to leave the matrimonial home on 15-6-1990; that the demand of dowry was made and was compelled to bring more dowry from her parents and her gold ornaments, bangles, two bracelets, two earrings, ring etc. were kept at Ahmedabad when respondent left for Ajmer on 15-6-1990 and was assured by the petitioner that he will come to Ajmer and take her back to Ahmedabad after sometime; that several telephone talks were made with the petitioner and his father however, false assurances were given that he will come and take back the respondent; that the petitioner had come to Ajmer in the month of September for few hours only and that too for his office work at Beeawar near Ajmer and assured that he will come back again to Ajmer to take respondent back to matrimonial home and as there was no way out ultimately the respondent along with her brother had come to Ahmedabad in the month of August 1991 to the house of the petitioner for performing her matrimonial obligations, but the petitioner refused entry to the respondent in the house and said that the petitioner only require divorce from her. It would be seen from para-19 of the petition that the petitioner permitted the respondent to visit her parental home on 15-6-1990. According to the petitioner it was because of the insistence of the respondent to stay at Ajmer and with a view to avoid quarrels and unpleasantness he permitted the respondent to visit her parental home on 15-6-1990. As seen from the pleadings as above, respondent has alleged cruelty and ill-treatment to her as the petitioner and his family members wanted more dowry. Apart from the said reason, the fact remains that the petitioner consented the respondent for her going to parental home on 15-6-1990 with her brother. 6. Petitioner has deposed at exhibit-41 that he did not demand dowry and ever since the marriage respondent was insisting for going to Ajmer and failing Ajmer, to settle at Bombay, as her sister and brother-in-law were staying at Bombay; that he tried to persuade the respondent but she was not convinced which led to quarrels and because of frequent quarrels he felt that the respondent did not want to stay with him and she appeared to be under the influence of her parental relations; that on 11-12-1989 Bhagwanbhai, brother of the respondent came to take her back and she went to Ajmer with her brother; that the respondent was informed about the death of his mother as respondent was at Ajmer at that time, and thereafter respondent returned to Ahmedabad; that the life went on well for about one month and respondent again insisted for going to Ajmer. That in March 1990 petitioner had developed piles ailment and was hospitalised for ten days and was advised rest for fifteen days at home. It is also stated that respondent stayed with the petitioner during his sickness for ten days in the hospital. That, after the sickness respondent again desired to go to Ajmer and even while petitioner was in bed rest respondent expressed her desire to go to Ajmer which led to quarrels; that she was told that after he undergoes second operation and he recovers she may go to Ajmer, but she did not agree to that and insisted to go to Ajmer; that on 15-6-1990 respondent's elder brother came and took her to Ajmer, at that time, there was no lady member in the house as wife of the elder brother of the petitioner had gone to Bombay; that the respondent was persuaded to go after elder sister-in-law returned from Bombay, but she did not agree and went away to Ajmer; that thereafter respondent did not return to matrimonial home. That on 15-6-1990 respondent left matrimonial home of her own and that she was not driven away from matrimonial home. It is denied that in September 1990 he had gone to Ajmer. In the cross examination it has been stated that in their community there is custom of 'Dahej' ; that when respondent came to the matrimonial home after marriage, she had come with clothes & ornaments; that dowry was not demanded by the petitioner or the family members' that after the marriage respondent stayed for about nine months in the matrimonial home with the petitioner. It is denied that the respondent had handed over her ornaments to the petitioner's mother after the marriage. Petitioner had denied the suggestion about dowry being demanded from the respondent. It is stated that during the period of nine months stay after the marriage respondent had gone to Ajmer once or twice with his consent. That before 11-12-1989 she had not gone to Ajmer; that on 11-12-1989 he did not visit the parental house of respondent; that on 15-6-1990 respondent went with her brother to her parental home; that he tried to persuade her not to go but she left of her own; that when respondent left for Ajmer petitioner was in the house, he does not know particulars about which ornaments respondent had taken with her when she left him on 15-6-1990; that he never opened Bank Locker which is in the joint name with his brother.He does not remember even the locker number and the ornaments used to be kept in the cupboard and the key used to remain with the respondent. It is denied that the ornaments brought at the time of marriage were handed over to his mother and the said ornaments were kept in the Bank locker. It is denied that the ornaments are still in the custody of the petitioner and his brother. It is stated that there is a custom in their community that when death takes place in the family, then, women folk of the family have to remove their ornaments temporarily; that respondent returned from Ajmer on 7-1-1990 on the death of petitioner's mother. It is denied that despite demand by the respondent the ornaments were not returned to her, it is denied that because of the quarrel respondent left matrimonial home on 15-6-1990. He has stated that in 1994 he had gone to Ajmer to attend Family Court in connection with the proceedings under section 125 of Cr.P.C. That, in all he had gone to Ajmer for attending said proceedings 5 to 6 times. It is denied that after 15-6-1990 the petitioner did not have the intention to keep the respondent in the matrimonial home. That no notice requiring respondent to fulfil her matrimonial obligation was served on the respondent; that after 15-6-1990 he did not try personally to contact the respondent nor did he write even a single letter after 15-6-1990 to the respondent. It is denied that after 15-6-1990 respondent had written 20 to 25 letters requesting that she be taken back to the matrimonial home; that he tried to bring back respondent to the matrimonial home after 15-6-1990 by telephone calls, but she was not willing to come back. It is denied that in the month of August respondent along with her brother had come to petitioner's house and requested to take her back in the matrimonial home, but he did not agree. It is further stated that in March 1990 he was hospitalised for undergoing surgery for piles ailment, thereafter he resumed duty in April 1990, that after June 1990 he did not undergo any surgery for piles and till today no second surgery has been undergone by him. It is stated that, even if the respondent is prepared to come back and stay with him he is not prepared to keep her. It is stated that on religious occasions and festivals like Diwali, Holi, Rakshabandhan he comes to Ahmedabad to meet his father. That his sister would also come once or twice in a month to meet her father and also on occasions. That after 15-6-1990 he tried to bring respondent back to matrimonial home but she was not willing to come and that she used to say 'No' on telephone and so he did not personally go to Ajmer to bring her back, that he did not talk to the relations of the respondent about the quarrels taking place between him and respondent, about stay/settlement at Ajmer. It is stated that his parents and family members used to treat the respondent like a family member and she was treated with affection. 7. The respondent in her evidence exhibit-56 has stated that at the time of marriage her mother & brother spent Rs.75,000/- and she came to the matrimonial home with ornaments and clothes etc.; that she had brought 4 bangles, kangan, 2 bracelets, necklace, 3 sets ear-rings, 4 rings, one chain etc. and also steel cupboard; that the petitioner and her parents-in-law used to say that the petitioner is an engineer, he has got less dowry and so respondent was treated like servant and was not even fed properly; that she was subjected to physical beatings also and was not allowed to take rest; that after the marriage she stayed for about 3 months with the petitioner and discharged her matrimonial obligations. Thereafter on 11-12-1989 she came to Ajmer at that time petitioner did not accompany her; that on 11-12-1989 she was sent to bring dowry; that on 6-1-1990 while she was at Ajmer her mother-in-law died and upon getting telegram she came to Ahmedabad on 6-1-1990 and had brought Rs.5,000/- with her at that time and the said amount was given to the petitioner, even then she was not treated properly and she was subjected to physical beating and was asked for divorce; that in March 1990 petitioner had suffered from piles ailment and was hospitalised; that this was informed to her by her sister-in-law; at that time she had requested for allowing her to accompany her husband but she was not taken to the hospital; that during the period of hospitalisation she was in the hospital with her husband and she also attended and served him during the rest period of fifteen days at home and after bed rest of fifteen days petitioner resumed his service; that the petitioner did not tell her that he will be required to undergo second operation. That, father-in-law had written a note to her brother to come and take the petitioner; that her brother came on 1-6-1990 at that time her father-in-law had asked her brother to come on 15-6-1990; that her brother Harish again came on 15-6-1990 to Ahmedabad and along with him she was sent to Ajmer by her in-laws and asked her to bring dowry; that she was not liked by the petitioner and her in-laws; that on 15-6-1990 her husband had come to railway station to see her off; that she left all her ornaments in the matrimonial home and came to Ajmer; that thereafter nobody came to take her back; that after 15-6-1990 she had written a note to her husband to come and take her back but there was no response; that in September 1990 her husband had come to Ajmer for some office work and met her and she had requested him to take her back, but she was told that he would come again; that in August 1991 she and her brother Harish came to Ahmedabad and met her father-in-law and the petitioner, but they told that they do not want to keep her, she was not liked and they want divorce. In the cross-examination it is stated that no notice has been served by the petitioner requiring her to fulfil marital obligations and only notice dated 30-10-1993 was given asking for divorce. That, in reply to the notice she had sent a note saying that she does not want divorce and she be taken back, but thereafter petitioner did not come to take her. It is stated by her that she did not state in her application for maintenance that when she came at the time of death of her mother-in-law she had brought Rs.5000/-. That on 30-5-1990 her brother had come to take her to Ajmer but at that time her father in law said that it is not convenient to send her, whereupon her brother again came in June 1990 to take her. That in June 1990 when she went with her brother at that time her husband had come to the railway station to see her off; that in June 1990 when she came to Ajmer she had brought with her some clothes and few ornaments. It is denied that she was quarrelling with her husband and insisting to settle at Ajmer. It is denied that she was not sent to Ajmer for bringing dowry. It is denied that after her husband underwent operation for piles she was insisting and was in a hurry to go to Ajmer.