1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.3299 OF 2008 Rajendra s/o Gopichand Hiwale, Age 34 years, Occ. Rickshaw Driver, R/o Krupa Cottage, Kothi, Station Road, Dist. Dhule. ...APPELLANT V E R S U S Pramila w/o Rajendra Hiwale, Age 32 years, Occu. Service, R/o Prakash Madhukar Pawar, Missionwadi, Post Wadala, Taluka Newasa, Dist. Ahmednagar. ...RESPONDENTS Shri S.P.Brahme Advocate for the Appellant. Shri M.P. Gude, Advocate for the Respondent sole. CORAM : K.U. CHANDIWAL,J. DATE : 15/07/2009 PER COURT:- 1) On 20th October, 2008 this court directed that the appeal will be finally heard and disposed of at the stage of admission, in view of the nature of lis involved. The matter is finally heard at admission stage. 2) The matrimonial differences resulting in annoyance and making allegation of infidelity against the husband, caused the husband to prefer the petition under Section 10 of the Indian Divorce (Amendment) Act, 2001, by Special Marriage Petition No.15/2003 before the learned District Judge at Ahmednagar. The learned Judge by order dated 11/9/2003 recorded 2 that provenly the wife has written 6 letters with an accusation of illicit relation character however, those letters are written out of frustration and consequently will not amount to cruelty to take recourse to Section 10 of Divorce Act. Secondly, the period of 2 years of desertion is not eloquently explained. Being dissatisfied with such orders of the learned District Judge, the husband is in appeal. 3) The marriage was solemnised on 14/5/2000 as per Christian rites, it is subsisting. Out of the marital cohabitation, wife delivered male child on 5th August, 2001, but in the controversy between the husband and wife child is with the wife. The husband is making monthly remittance of Rs. 500/- as maintenance being so directed in the maintenance proceeding. The wife's maintenance petition for herself came to be dismissed/rejected. The wife was in service at Anand Rushiji Hospital, Ahmednagar as a Nurse and she was discontinued. 4) The contentions in the petition that wife has deserted the husband from September, 2001, does not warrant and require specific date to be given as husband is a Rickshow driver and not as educated as wife is. The fact remains that there is controversy tried to be crept into at the behest of the wife about the intermittent cohabitation. There is unequivocal admission from wife recorded in paragraph 5 of her evidence that from September, 2001 she is residing at her 3 matrimonial house. There is nothing to illustrate that after such desertion, there was any reconciliation or cohabitation or condonation at the behest of the husband for getting the wife in his custody. In these situation of the matter, I do not accede to the contention or observations of the learned Judge that the requisite period of two years as indicated in Section 10 of the Act, is not carved out. 5) Then comes the writing of several letters by wife. It is a matter of record only 6 letters are proved while Exh. 13 is of 2000 and other letters are of 2003. There are several other letters which are on record but have not been proved. Consequently, I am not indicating to advert to those letters. A very blunt stand is taken by wife in evidence and her pleadings of denying the letters or executing bond in earlier maintenance proceedings where she sought to condone her earlier conduct and earlier odd behaviour. This approach is of rebelling to the court record where she in unequivocal terms accepted all such points. It is but natural, in the said bond reference of the letters of 2003 will not be surfacing as the bond is prior in time. 6) The contentions that there was no notice of restitution of marriage is again falsified by the notice issued by notice of Advocate dated 13/1/2001 and it was returned unserved, as per Exh. 36, though envelop of the said letter carry correct address it was prepared properly, however, wife 4 did not honour the letter. Consequently, the postman has endorsed "refused". This follows effect of the letter dated 13/1/2001 will culminate into a knowledge to the wife about the husband's desire for restitution and also about husband's offer to close earlier controversy but there was no repentance on the part of wife to change her attitude and consequently she has provenly deserted the husband, from September, 2001, which remained in tact till filing of the petition, and even now. 7) Prakash, brother of wife was conscious to identify the hand writing of his sister on the bond, accepted that his sister was residing with him and she used to have correspondence on the same address still he also did not accept the authorship of his sister to the letters. 8) Now reverting to the letters, in the letter Exh.14 of the year 2000 the wife attributed illicit relations of the husband with his sister. She condemns him informing, had she knowledge of such relation, she could not have married him. She has alleged for carnal intercourse with his mother, he has gone to Aurangabad from Newasa and had snapped photographs of his nephew which was not expected of the husband. That she has no desire to cohabit and continue any matrimonial relation with husband, in the light of his illicit relation with his sister unwarranted relations with his mother. She has abused in filthy language in the name of his mother and sister of the husband. 5 9) In the letter at Exh. 15 (dated 20-8-2000) by the wife she addressed mother of the husband as to why she has influenced her son, without any care and logic reasons. Mother has no honour and fear of condemnation. She has threatened mother to visit Wadala and then she will teach a lesson. In the said letter she canvassed if the husband is not capable to maintain her there was no reason for the husband to marry her. The husband is not man to have sexual intercourse with his sister. She has further threatened not to send husband to Wadala else he will be assaulted. The wife accuse husband and her mother-in-law to engage and enjoy in a clasp with his sister, to have the sexual relations till the satisfaction and then only send the husband after Easter. If sister is not satisfied by sex with the husband, she can also search for other person to satisfy her lust. 10) In the letter at Exh. 16 ( dt.12-5-2003) wife asserts, that if sister is not satisfied by sex with her husband she also wants other person to satisfy her lust. She has alleged, mother and sister of husband are prostitutes and they have no fear of the society as they do not bother for the society honour/esteem. They are made only for money and they are bent upon to live as parasites on the income of husband. That, she has very good approach and contacts and easily can destroy entire family and take them to streets. That, the mother and sister of husband has destroyed her family life, she will also teach them a permanent lesson as she has a very long 6 drawn relations/approach with high authorities. 11) In the letter Exh. 17 she has virtually repeated earlier allegations. In the subsequent letter Exh. 18( 31-7-03) she desired to have divorce from husband, as the husband has no capacity to maintain even the minor son as he is keen to maintain his mother and interested in anus of his sister. Wife has challenged to come to the court and have a divorce. These aspects, were indicative of a clarion severance, resulting in wide breach in matrimonial relations. 12) The learned Judge though accept that the wife has written 6 letters, but observed that those are written out of frustration. A person with ordinary sense will have no courage, and particularly the wife she is nurse knowing consequences being conversant with Marathi and English language, could not dare to right such letters and particularly when matter revolves to husband and his close relatives. The situation as created by the wife by the letters, more lean to indicate her short temper, and going to any angle to castigate husband and his family members. How far, there can be a degree of tolerance, expected from the husband, needs to be dealt with. 13) The concept of cruelty has several shapes to be considered. The status of the parties, their living standard, 7 earning, education background are also parameters to be considered. In this case the wife is a graduate nurse, while the husband is a Rickshow driver and studied upto 10th standard. They are admittedly from down trodden society. 14) The letters indicated above and based on analysis of the evidence, the matrimonial life of the husband and wife has came to stand still. It is a continuous course of all passive and humiliating acts the wife has used, which was torturous act she has deliberately contemplated and propagated. This was not an act which could have been tolerable. It was not a single letter but series of such letters are flashed by the wife. It will not be her agony but also display, what was running in her mind when such letters are repeatedly addressed amounts to reproachable conduct tending to a cruelty. The wife has indicated total indifference atleast from September, 2001 towards her husband. She lost in maintenance proceeding but that itself cannot be treated as a ground to her to write letters. The wife has branded mother and sister of husband to be prostitutes. She continued to make the reckless allegations, without affording its proof at any stage. 15) The counsel for the husband took recourse to the judgment of the Hon'ble Supreme Court in the matter of Naveen Kohli Vs. Neelu Kohli, reported in 2006(5) Bombay C.R. 240. The Lordship were dealing with the situation of the matrimonial relations where they are literally broken down. The Lordship 8 found a publication of news item in Newspaper by wife that status of husband in company was only of employee, the Lordship found such conduct of the wife to be amounting to mental cruelty and decree for divorce was followed. 16) In the matter of Rajan Vasant Revankar Vs. Mrs. Shobha Rajan Revankar reported in 1995(1) Bom. C.R.47 the wife had a peculiar habit of writing letters in which she accused husband of having illicit relation with his mother who had a white skin. She went on making allegations that husband was pondering upon his sister for his personal gain projecting her in the society. Writing such letters accompanied with filthiest language amounted to cruelty. 17) The conduct of wife throughout, after the marriage as indicated in the evidence leads to unimpeachable reasonable feeling that wife does not desire to have simple life with her husband. She has a short temper but it should not be mental hallucination to destroy the life of husband. Since the conduct of the wife demonstrate that the relations have reached such a stage of no reconciliation. The sustained course of abusive and humiliating treatment is nothing less than torture. It may be, the wife has a sadistic pleasure in the letters, however, it is certainly a cruelty against the husband. The demand for divorce by the husband on the ground of cruelty cannot be said to be a false or unsustainable ground. 9 18) Section 10 of Indian Divorce Act, 1869 by virtue of Amendment in 2001 has changed the colour and complexion. The scope of dissolution of marriage is widened. Certain categories are given. For the purpose of present appeal Sub- clause (ix) and (x) needs attention which is as under; Sec. 10 -Grounds for dissolution of marriage.-(1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent - (i) to (viii) .......... (ix) has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or (x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent. 19) It was willful desertion at the behest of wife immediately preceding two years of presentation of the petition. The writing of letters, indicated herein above, amounts to such cruelty as to cause a reasonable apprehension in the mind of the husband that it would be harmful or 10 injurious to live with the Respondent/wife. ORDER In the result the findings of the learned court refusing the decree for divorce is set aside. The appeal is allowed. The marriage between husband Rajendra Gopichand Hiwale and wife Pramila Rajendra Hiwale is dissolved in terms of Section 10 of Indian Divorce (Amendment) Act, 2001. The parties to the litigation shall not enter re-marriage for a period of 6 months in terms of Section 57 of Indian Divorce Act. No costs. Civil Application 1250/2009 disposed of. ( K.U.CHANDIWAL ) JUDGE cmg/fa329908