:1: :1: :1: IN THE HIGH COURT OF JUDIATURE AT BOMBAY IN THE HIGH COURT OF JUDIATURE AT BOMBAY IN THE HIGH COURT OF JUDIATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.23 OF 2001 FAMILY COURT APPEAL NO.23 OF 2001 FAMILY COURT APPEAL NO.23 OF 2001 Mr.Ajay Sayajirao Desai Age 34 Years, Occupation Service R/at: C/o. S.V.Desai, 582, Panmala, Pune-Singhagad Road Pune 411 030. .. Appellant. Versus Mrs.Rajashree Ajay Desai Age 28 years, Occupation Service R/at: C/o. Arun Anandrao Mohite, Opp: Ranjeet Convent School, Mahal, Nagpur 440 002. .. Respondent. --- Mr.D.M.Gupte for the appellant. Mr.Ajit Kulkarni with Mr.H.P.Vyas for the respondent. CORAM : S.B.MHASE & CORAM : S.B.MHASE & CORAM : S.B.MHASE & D.B.BHOSALE, JJ. D.B.BHOSALE, JJ. D.B.BHOSALE, JJ. DATE : FEBRUARY 8, 2005. DATE : FEBRUARY 8, 2005. DATE : FEBRUARY 8, 2005. ORAL JUDGMENT (PER D.B.BHOSALE, J.) (PER D.B.BHOSALE, J.) (PER D.B.BHOSALE, J.) 1. This appeal under section 28 of Hindu Marriage Act, 1955 (for short "the Act") is directed against the judgment and order dated 18th July, 2000 rendered by the Family Court, Pune in Petition No.A-801 of 1998 filed by the appellant-husband seeking dissolution of marriage on the grounds available under section 13(1) (i-a) :2: :2: :2: (i-b) of the Act as also for custody of a minor child - Jaydeep. The family court dismissed the petition with costs. 2. Background facts sans unnecessary details are as follows: The appellant (for short the ‘husband’) and the respondent (for short the ‘wife’) tied the nuptial knot on 27.5.1994. They were blessed with one child, who was born on 26.10.1995. The child is now nine years old. The marriage was what is commonly known as ‘arranged marriage’. After the marriage the wife started residing with the husband, his parents and sister at Pune. At the relevant time the husband’s mother was working with M.S.E.B. The case set up by the husband was that right from beginning the wife’s behaviour was strange and rude. She went to Nagpur, her mother’s place, for delivery in July 1995 and thereafter never returned to her matrimonial home at Pune. During her stay at Pune she subjected the husband to cruelty. Several instances are quoted in the pleadings as also in the evidence led by the husband which, according to him, amounted to cruelty. It appears that the wife had a white spot (lucoderma) on her body which was allegedly suppressed by her and her parents while :3: :3: :3: settling the marriage. After marriage, to suppress it further, it is alleged that twice she slapped the husband when there was an attempt to touch her body part where she had the white spot. According to the husband, from inseption the wife started insisting separate residence to which he was not prepared being the only son of his parents. It is alleged that her conduct with his mentally challenged sister and parents was also not proper. The allegation is also made against the wife that she used to give threats to the husband that if he did not agree to reside separately from his parents and sister, he would suffer serious consequences. After delivery on 26.10.1995, the husband and his parents made several attempts to bring her back to Pune to which there was no response from the wife inasmuch as she wanted to reside separately. As a result of which on 20th February, 1996 the husband send a notice calling upon the wife to come back to Pune for cohabitation. The wife replied to the notice on 1.3.1996. Even thereafter the husband and his family members made futile attempts to bring her back. Against this backdrop the husband filed Petition No.P/A/877/1996 under section 9 of the Act for restitution of conjugal rights in the family court at Pune. After service of the :4: :4: :4: petition, the wife filed written statement on 6.7.1997 in which she tried to justify her withdrawal from the society of the husband. The husband on 10.7.1997 withdrew the said petition without assigning any reason whatsoever. Thereafter on 11.10.1998 he filed petition No.P/A/801/1998 seeking divorce on the ground of cruelty and desertion as also custody of the child. The wife filed her written statement in the petition opposing the prayers made therein on 4.1.1999. To prove the allegations against the wife, the husband examined himself and his mother, and in the course of their evidence produced several letters, written by the parties to each other, on record. As against this, the wife examined herself and her mother and also produced several letters on record in support of her contentions. The family court has extensively dealt with evidence led by the parties and found that the allegations which allegedly caused mental agony and cruelty were unfounded. Even on the point of desertion the family court held against the husband. Similarly, the prayer for custody was also rejected by the family court. It is against this backdrop the present appeal has been filed by the husband. :5: :5: :5: 3. Before we advert to the merits of the case let us place on record that we made all efforts for reconciliation inasmuch as the wife expressed that she was prepared to go back to the husband alongwith the child. We interviewed the parties as also requested learned counsel appearing for the spouses to meet outside the court and try to reconcile their differences. However, all the efforts to reconcile their differences failed. Under the circumstances, we were left with no alternative but to proceed with the matter and decide the same in accordance with the law. 4. We heard the learned counsel appearing for the parties at length. Perused the pleadings as also evidence with their assistance. At the outset Mr.Gupte, learned counsel for the husband strenuously urged that looking to the conduct of the wife and instances quoted by the husband in his evidence it is clear that the marriage has broken irretrievably and there are no chances of their coming together. He further submitted that the cumulative effect of all the allegations made by the husband is sufficient to constitute cruelty and on that count alone he is entitled for divorce. He :6: :6: :6: invited our attention to the evidence led by the parties and submitted that the behaviour and conduct of the wife with the husband and his family members from the very beginning was strange and rude. A specific reference was made to the white spot on wife’s person as also her behaviour with his mentally challenged sister. He further submitted that mental agony and stress that was sufferred by the husband resulted in loosing his job. In so far as desertion is concerned, he submitted that the wife had left her matrimonial house on 31.7.1995 and since then there has been no cohabitation. He further submits that all the efforts made by him and his family members to get her back failed and, therefore, he was left with no other alternative but to seek divorce on the ground of desertion. Mr.Gupte further submitted that the allegations made by the wife against the husband and his family members in the written statement also caused him mental agony and cruelty. In support of his contentions he placed reliance on the judgment of this court in Mr.Rajan Vasant Mr.Rajan Vasant Mr.Rajan Vasant Revankar Vs. Mrs.Shoba Rajan Revankar AIR 1995 Revankar Vs. Mrs.Shoba Rajan Revankar AIR 1995 Revankar Vs. Mrs.Shoba Rajan Revankar AIR 1995 Bombay 246 and the judgment in Avinash Eknath Bombay 246 and the judgment in Avinash Eknath Bombay 246 and the judgment in Avinash Eknath Nikhalje Vs. Leela Avinash Nikhalje 2003(3) Nikhalje Vs. Leela Avinash Nikhalje 2003(3) Nikhalje Vs. Leela Avinash Nikhalje 2003(3) Mh.L.J. 450 Mh.L.J. 450 Mh.L.J. 450. :7: :7: :7: 5. On the other hand Mr.Kulkarni, learned counsel for the respondent-wife vehemently submitted that the instances quoted by the husband in his evidence are false and imaginary and even if it is assumed that they are true they are not sufficient to constitute cruelty. He further invited our attention to the relevant dates to contend that filing of the petition for restitution of conjugal rights in December 1996 itself shows that there was no cruelty till then. In so far as subsequent events are concerned there is no evidence, either oral or documentary, in support of those allegations. The husband has miserably failed to prove the ground of cruelty. In so far as desertion is concerned, he invited our attention to the evidence of the wife and contended that it is the husband who deserted the wife and his acts were responsible for not allowing the wife to go back to matrimonial home and, therefore, such a husband, according to Mr.Kulkarni, cannot take advantage of his wrong and seek divorce on the ground of desertion. 6. Before we proceed to consider the merits of the contentions urged by the learned counsel :8: :8: :8: appearing for the parties we would like to advert to the position in law, in so far as the ground of ‘cruelty’ as contemplated by clause (ia) of sub-section (1) of section 13 of the Act is concerned. The expression ‘cruelty’ has not been defined in the Act. The cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage can be defined as willful or unjustifiable of such character as to cause danger to life, limb or health, bodily or mentally, or as to give rise to a reasonable apprehension of such a danger. In other words ‘Cruelty’ contemplated by section 13(1)(ia) of the Act is a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent or that it has become impossible for the spouses to live together. This is settled by the Apex Court in N.Bhagat Vs. N.Bhagat Vs. N.Bhagat Vs. Mrs.D.Bhagat reported in AIR 1994 SC 710 Mrs.D.Bhagat reported in AIR 1994 SC 710 Mrs.D.Bhagat reported in AIR 1994 SC 710. On a review of the earlier decisions of the Supreme Court, right from the case of Dr.N.G.Dastane Vs. Dr.N.G.Dastane Vs. Dr.N.G.Dastane Vs. Mrs.S.Dastane reported in AIR 1975 SC 1534 Mrs.S.Dastane reported in AIR 1975 SC 1534 Mrs.S.Dastane reported in AIR 1975 SC 1534, the Supreme Court has laid down the legal position which now obtains after the amendment of 1976 to the Hindu Marriage Act. The reference to the observations in paragraph 17 of the judgment in Bhagat’s case (supra) would be useful, which read :9: :9: :9: thus: "17. Mental cruelty in S.13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such as nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty is one case :10: :10: :10: may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they are made". 6.1 In a very recent judgment the supreme court in A.Jayachandra V. Aneel Kaur 2005 AIR SCW 164 A.Jayachandra V. Aneel Kaur 2005 AIR SCW 164 A.Jayachandra V. Aneel Kaur 2005 AIR SCW 164 has once again considered the expression ‘cruelty’ and in paragraph 11 and 12 thereof held thus: "11. The expression ‘cruelty’ has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course of conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must :11: :11: :11: begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. 12. To constitute cruelty, the conduct complained of should be ‘grave and weighty’ so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than ‘ordinary wear and tear of married life’. The conduct, taking into consideration the :12: :12: :12: circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses :13: :13: :13: and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party". 6.2 It is against this backdrop we would now like to consider as to whether or not the allegations are true, and, if they are true, are they sufficient enough to cause reasonable apprehension that it would amount to physical or mental cruelty and that it would be harmful or injurious for the husband to live with the wife. In other words, whether the husband has produced sufficient evidence/material on record so as to satisfy our conscience that the relationship between the parties had deteriorated to such an extent, due to the conduct of the wife, that it would be impossible for them to live together without mental agony, torture or distress. 7. We have independently gone through the evidence led by the parties. The husband in his evidence has stated how his marriage was settled and that they were assured by the mother of the wife that there was no hereditary illness in their family. According to him after marriage in order to hide the white spot, the wife always avoided to :14: :14: :14: change in his presence and while they were on their honeymoon he tried to place his hand on her waist and she allegedly slapped him. He has further stated that immediately after coming back from their honeymoon the wife started insisting for a separate residence. She was not behaving properly with his mentally challenged sister. According to the husband, the wife also threatened that he would suffer serious consequence if he did not agree to live separately. This all happended prior to July 1995 i.e. within a span of less than one year. According to the husband, after two months of marriage, he noticed the white spot which was suppressed at the time of marrige. After she went for delivery on 31.7.1995 she did not come back, despite several efforts made by him and his parents. After delivery the husband and his parents visited Nagpur on 3-4 occasions and tried to persuade her to come back to Pune which she flatly refused on the ground that unless husband agrees to reside separately she would not return to Pune. He has specifically stated that her behaviour caused mental torture to him which ultimately resulted in loosing his job in Milton company, where he was working on a contract basis. He was, therefore, forced to file a petition for :15: :15: :15: restitution of conjugal rights in December 1996 which he subsequently withdrew and in July 1997 filed the petition for divorce. In examination in chief he has simply denied the allegations made by the wife in her written statement against him and his family members. The reference was also made to the complaint lodged by him with Kothrud police station as also Nagpur police station. He has also referred to the application made to the telephone department requesting them to tap the telephone. It may be noted at this stage that the husband did not examine any witness from the police station or from the telephone department. We perused the cross examination of the husband. In the cross examination he has stated that initially their sexual relations were not proper, however, after he noticed the white spot their sexual relations improved. He has further stated that after delivery he went to Nagpur on 2-3 occasions and on every occasion he requested/persuaded the wife to come back to Pune which she refused. He has also stated that he had genuine desire to lead a matrimonial life with his wife. It appears that the husband had shifted to a new house when the wife was at Nagpur for delivery. There was extensive cross examination on the point as to :16: :16: :16: whether or not, the husband had informed his new address to the wife. We would make specific reference to the cross on this point, when we would deal with the ground of desertion in later part of the judgment. The other witness, namely, Mandakini, mother of the husband, has corrobated his evidence to some extent though we found several discrepancies and contradictions in their evidence. 8. Keeping the evidence of both these witnesses in view, it is clear that the husband has relied on the following instances to prove ‘cruelty’ against the wife (a) Non disclosure of hereditary illness that the wife was allegedly sufferring from, namely, a white spot on her waist (lucoderma) (b). The slap given to the husband when he made an attempt to touch the waist of the wife where she had a white spot (c) Wife’s insistence for separate residence (d) Her rude behaviour with his mentally challenged sister and parents (e) Threats given by the wife of serious consequences (f) Insulting and humiliating treatment meted out to the husband and his relatives whenever they visited Nagpur and in particular on 20.11.1996 (f) False allegations made against the husband and his mother in the written :17: :17: :17: statement filed in the Petition bearing No.P/A/No.877/1996 filed by the husband seeking relief of restitution of conjugal rights and (g) Threats given by the wife to the husband and his relatives on telephone and by sending letters. 9. From perusal of the evidence of the husband and mother it is clear that, though not immediately, atleast within two months of the marriage the husband came to know about the white spot (lucoderma) on wife’s person. It is very hard to believe that for two months he did not notice the white spot on her person, though admittedly the marriage was consumated during that period. No grievance whatsoever was made by the husband when he came to know about the white spot on her waist. As a matter of fact in paragraph 25 of his testimony, he has categorically stated that when he saw the white spot for the first time they had no discussion about it. Moreover, he admits that they had healthy sexual relationship during that period and even thereafter. Even in paragraph 36 of his evidence, in reply to one of the questions put to him, he categorically stated that he had no grievance regarding the white spot on the waist of the respondent. In view of this admission given in :18: :18: :18: the cross examination as also in the evidence of the mother by no stretch of imagination it could be said that the white spot was suppressed at the time of marriage and even if she did, it caused mental cruelty to the husband when he noticed it after two months of the marriage. Even if it is assumed that the wife had white spot on her person, that was consciously accepted by the husband, probably, because he also had fully grown up mentally challenged sister in the house and that his parents wanted the wife to take care of her. Whether the wife really misbehaved with the sister or not is also doubtful. Except the bare words that the wife used to misbehave with the sister and his parents there is absolutely no material placed on record to show that she did, in fact, misbehave with them. As a matter of fact filing of the petition for restitution of conjugal rights in December 1996 and the efforts to bring her back to Pune show that the husband and his family members did not have any grievance whatsoever against the wife. The husband or his mother have not stated in what manner the wife misbehaved with the sister. In so far allegations regarding threat of serious consequences is concerned, except the bare words no material, such as letters, is produced on record in :19: :19: :19: support of that allegations. If really the wife had given such threats, the question as to why the husband and his family members were making repeated efforts to bring her back remained unanswered. The allegation that the husband and his parents were insulted and driven out of his in-laws house at Nagpur on 20.11.1996 also seems to be an after thought and imaginary. We perused the letters placed on record and found that none of the letters would help the husband to prove any of the allegations made against the wife and her family members. In fact, the letters show that the relationship between the two families was not that bad as was tried to be potrayed in the evidence. In fact, the instances quoted and relied upon by the husband to show that he was subjected to cruelty, in our opinion, are not at all sufficient to constitute cruelty apart from the fact that most of the instances are not even worth believing. 10. The admitted factual matrix show that till 10th July, 1997, the day on which the petition seeking relief of restitution of conjugal rights was withdrawn by the husband, everything was smooth except some stray incidents of discord which are normal in any marriage and such normal wear and :20: :20: :20: tear cannot be a ground for seeking divorce. If we accept the allegation that the demand/insistance for separate residence amounts to cruelty, probably every petition coming to the Court