1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION FAMILY COURT APPEAL NO.4 OF 2006 Smt. Sudha Kirit Shah ] Age : 49 years ] Occ.: Housewife, ] Appellant R/o : C/o Bhupendra S. Shah ] (Ori. Respondent) Shrinath Darshan, C-3, ] Flat No.9, 1st Floor, L.T. Road, ] Borivali (West), Mumbai. ] vs. Shri Kirit Shivlal Shah ] Age : 47 years, ] R/o : 7-A, Bhima Mhatre Bldg., ] Respondent 3rd Floor, Opp. K.D. Agarwal Hall ] (Ori. petitioner) Manpada Road, Dombivli (East), ] Dist. Thane ] Mr. Pravin Patel a/w Mr. Arun D. Nagarjun, Advocates for appellant. Mr. Amit S. Kapse, Advocate for respondent. Coram : A.P. Deshpande & Smt.R.P. SondurBaldota, JJ. Judgment reserved on : 1st April , 2010 Judgment pronounced on : 19th April 2010 Judgment (Per Smt. R.P. SondurBaldota, J.) 1. This is an appeal filed by the wife from the judgment and decree of Family Court, Mumbai allowing the petition filed by the husband for divorce. 2. The undisputed facts of the case are that the parties were married on 18th July 1991 at Borivli, Mumbai according to Hindu vedic rites. After the 2 marriage, they resided at Dombivli. There is no issue born from this wedlock. The parties stayed together till 21st June 1992, when the appellant left the matrimonial home and started staying with her brother. The appellant returned to the matrimonial home on 11th June 1994,without the knowledge and in the absence of the respondent by getting a duplicate key prepared. Since then she prevented the respondent from entering into the house by filing police complaints. The respondent could enter into the house only with the help of interim order of the Court dated 16th February 2000 passed in Suit No.323 of 1998 filed by him for declaration of his title to the house and for permanent injunction to restrain the appellant from obstructing his entry into the matrimonial home. The application had been resisted by the appellant contending that the presence of the respondent in the matrimonial home was dangerous to her life. 3. The respondent filed the petition herein for divorce on the ground of cruelty, desertion and mental illness of the appellant. The twelve instances of cruelty alleged against the appellant are (i) not allowing consummation of marriage at the time of honeymoon, (ii) picking up quarrels on petty grounds, (iii) issuing threats of dire consequences if the respondent disclosed behaviour of the appellant to anybody, (iv) not cooking food properly and hitting the respondent with rolling pin or whatever in hand, (v) threat to commit suicide, if the respondent reported the appellant's behaviour to his 3 mother, (vi) making allegation of extra marital affair, (vii) neglect during the illness of the respondent, (viii) attempt to commit suicide in order to scare the respondent. (ix) desertion on 21st March 1992, (x) entering the matrimonial home just before completion of period of separation of two years by lodging false police complaints and (xi) preventing the respondent from entering and staying in the matrimonial home by lodging false complaints. During the course of the proceedings, the respondent gave up the grounds of desertion and mental illness and pressed only for the ground of cruelty. The Family Court was required to consider one more instance of mental cruelty that emerged from the record and proceedings. It was of making allegations that the respondent was having extra-marital affair. 4. The appellant in her written statement while denying all the instances of cruelty alleged against her, alleged that she was thrown out of the matrimonial home by the respondent and his brother. A few days thereafter the respondent's father visited the house of her father and demanded that her family invested money in the business of his son. Nonetheless she sought dismissal of the petition and along with dismissal permanent alimony of Rs. 10,000/- per month from the respondent. 5. The Family Court by its impugned judgment and order held that the respondent had established all the instances of cruelty for most of which there was no cross-examination at all. It also took into consideration serious 4 allegations made against the respondent during his cross-examination of having an extra marital affair to grant decree of divorce. As regards the permanent alimony claimed by the appellant, the court disbelieved her contention about the income of the respondent and on appreciation of the evidence brought before it, awarded maintenance of Rs.750/- per month with Rs.3,000/- towards medical expenses. In the facts and circumstances of the case, no order of costs was made. 6. The marriage between the parties is seen to have lasted barely for a year. Even before the year was complete, they started staying separately. Admittedly the appellant had not allowed the respondent to enter the house for more than eight years. He could secure an entry into his own house only by virtue of an order of the court. Today though under the same roof, they are staying separately. Thus they have been separate from each other for 18 long years indicating irretrievable breakdown of marriage. 7. The decree of divorce has been assailed before us on the ground of insufficiency of evidence to establish allegations of cruelty against the appellant. There are as many as 12 instances of cruelty alleged against the appellant. Even if we keep aside those allegations that are denied by the appellant about which the evidence would be word against word, at least two instances stand out demanding attention. The facts constituting these two instances are not disputed. The appellant had left the matrimonial home 5 on 21st June, 1992. In May 1994, she approached the Special Cell for Women and Children from the office of Commissioner of Police. The respondent had attended the office on 27th May 1994 after receiving a letter from police. He could not attend the next date on 10th June 1994 on account of illness. Then he was required to go to Baroda. On his return, he found that the appellant had entered into the house by getting duplicate key made. Thereafter whenever the respondent wanted to enter the house, she prevented him by making complaints to police. This continued for seven years. Finally the respondent had to file a suit against the appellant and could enter the house only armed with an order of interim injunction against her, which was granted after a contest. The matrimonial home are the rental premises which is the only home that the respondent had. In the circumstances, the conduct of the appellant must have obviously caused tremendous hardship, inconvenience, unnecessary expenses and mental anguish to the respondent. Such conduct would definitely constitute cruelty. 8. The second instance is of character assassination. In the course of cross-examination, it was suggested to the respondent that he was having extra-marital affair with a woman by name Raju. By way of evidence, he was confronted with a diary in which some verses were written in his hand. He explained that it was Shayari penned down by him to an imaginary “ ” person and not to any woman by name Raju. The appellant in her 6 examination-in-chief repeated the allegation. But she was unable to establish that there is any such woman by name Raju in fact living. The allegations are thus seen to be false. It is also seen that the serious allegation of extra- marital affair has been made in an absolutely casual manner and is totally unprovoked. Mr. Kapse, the learned counsel for the respondent relying upon two decisions of the Supreme Court in Vijay Kumar Ramchandra Bhate vs. Neela Vijaykumar Bhate, reported in 2004(2), Bombay Cases Reporter, 384, and in Satish Sitole vs. Ganga, reported in 2008(6) Bombay Cases Reporter, 49, submits that false accusations of character assassination made by the appellant against the respondent are sufficient by themselves to substantiate cruelty in law, thereby substantiating the claim for divorce by the respondent. Infliction of such cruelty is bound to cause mental pain, agony and sufferings and in the circumstance, the respondent cannot reasonably be asked to live with the wife making such allegations against him. 9. In all the above circumstances, we are convinced that the findings of the Family Court on the ground of cruelty is fully justified on the material on record. It does not suffer from any infirmity. We are, therefore, not inclined to interfere with the finding. 10. Though the appellant has filed the present appeal to challenge the decree of divorce thereby indirectly indicating her desire to continue with the marriage and stay with the respondent, her conduct throughout has been 7 such as to indicate desire to break from the marriage. The conduct of preventing the respondent from entering into the matrimonial home is not the conduct of a wife who wants the marriage to be continued. Similar is the conduct of making unprovoked false allegations of extra-marital affair. 11. This brings us to the question of permanent alimony payable to the respondent. It is the appellant s case in the written statement as well as in ’ her evidence that the respondent has been earning handsomely and is able to pay Rs.10,000/- per month to her by way of permanent alimony. The evidence before the Court shows that the appellant is not an Income Tax payer, approximately since last ten years. He has five insurance policies for the sum assured amounting to Rs.5,000/-, Rs.10,000/-, Rs.15,000/-, Rs.30,000/- and Rs.70,000/-, out of which, the first three insurance policies had already matured. The appellant presently does the job work of getting fabric belts prepared for his customers. It was alleged that the appellant had several businesses to his credit i.e. the business of Ashok Traders, Ashok Sales Corporation. It has been in the evidence of the respondent that Ashok Sales Corporation was closed in the year 1998 and Ashok Traders closed about 15 years back. The appellant has not been able to produce any evidence before the Court as regards these businesses. In the circumstances,in our opinion there is no need to interfere with the order of award of maintenance either. We are, however, informed that by way of an interim order passed in the 8 present appeal, the respondent has been directed to pay maintenance of Rs. 1200/- per month to the appellant. We are inclined to modify the decree only to that extent i.e. awarding permanent alimony of Rs.1200/- per month to the appellant. 12. In all the above circumstances, we dispose of the appeal confirming the decree of divorce and of payment of medical expenses of Rs.3,000/- to the appellant. The decree as regards maintenance is modified by enhancing the maintenance from Rs.750/- per month to Rs.1,200/- per month payable from 24th July 2007. No order as to costs. (Smt.R.P. SondurBaldota, J.) (A.P. Deshpande, J.)