* 1 * FCA-30/06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 30 OF 2006 Mr. Sandeep Bharat Parkhe Age about 31 yrs, Occ : Business Residing at House No.6, Near Sharada Co-operative Bank, Pashan, PUNE- 411 026. ..........Appellant/ Orig. Petitioner VERSUS Ms. Kalyani Sandeep Parkhe Age about 25 yrs, Occ: Housewife Residing at Amogh Apartment Flat No.8, B Wing, Near Shivaji Statute, Aundh, PUNE- 411 007 .........Respondent/ Orig. Respondent Mr. Hitesh P. Vyas, adv.for the appellant. Mr. Vilas B. Tapkir, adv.for the respondent. Coram : A.P. Deshpande, & : Smt. R.P. SondurBaldota, JJ. Judgment Reserved On : 26th April, 2010. Judgment Pronounced On : 6th May, 2010. JUDGMENT [PER : SMT. R.P. SONDURBALDOTA, J] : 1. The appellant husband prefers this appeal from the judgment and decree dated 26th April, 2005 of the Family Court dismissing the petition * 2 * FCA-30/06 filed by him for divorce on the ground of cruelty. 2. The parties were married on 22nd November, 2002 at Pune as per Hindu vedic rites. Thereafter, they resided together for a short period of 6 months i.e. until 25th March, 2003 from which date the respondent has been staying with her parents. There is no issue from the marriage. 3. The appellant alleged in his petition that while both were on their honeymoon at Goa, the respondent disclosed to him that she was in love with another person and had been forced into the marriage with the appellant. She did not allow the appellant to consumate the marriage. On return from Goa, there were religious ceremonies of “Jagran” and “Gondhal” in the house, but the respondent refused to participate in the ceremonies and went to sleep in the bedroom causing embarrassment to the appellant and his family members. The respondent also picked up quarrels over petty issues with the appellant and openly declared her attraction towards Sachin, the brother of the appellant. She tried to be physically close to him, followed him in his bedroom under the pretext of some work and shared dirty jokes with him. Sachin felt embarrassed and asked her to keep away from him. However, the respondent would not listen and sought every opportunity to touch him. On 13th February, 2003, Sachin returned home at about 8.30 p.m. At that time, the appellant was at the shop and his parents were out to attend a function. The respondent under the pretext of serving food made him sit on the sofa and sat next to him. She told Sachin that she was not happy with the appellant and that it was a good opportunity for the both to be together. Sachin then raised an alarm when his cousin sister who had been watching T.V. Came in * 3 * FCA-30/06 and was shocked to see the respondent clinging to Sachin. Then, in the last week of February, 2003 when the appellant and his parents had gone to attend a marriage, the respondent sought Sachin alone and tried to hug and kiss him. Thereafter, on 25th March, 2003 the respondent quarrelled with the appellant that Sachin was not speaking properly with her and left the house. When all attempts at making the respondent see reason and behave herself failed, the appellant approached Stree Adhar Kendra, Vadgav, Dhayari. The social workers from that institution had written to the respondent for a meeting, but the respondent refused to come. Instead, she approached Mahila Utkarsha Mandal, Dapodi and filed a false complaint against the appellant on 19th May, 2003 with Chaturshinghi police chowky alleging cruelty at the hands of the appellant and misbehaviour of Sachin. The appellant then had to apply for anticipatory bail. 4. The respondent in her written statement denied all the allegations of cruelty made against her. She alleged in turn that the family members of the appellant treated her with cruelty because she was not much educated and came from a poor family. She alleged that Sachin behaved in a whimsical manner with her and suspected her. She complained that Sachin has a very dominating nature and treated the appellant like a servant. According to the respondent on 25th March, 2003 the family members of the appellant quarrelled with her and made him take her to her parents house. Since then, they have refused to accept her back into the house. 5. The appellant examined himself, his brother Sachin and one Smt. * 4 * FCA-30/06 K.G. Modak in support of his case, whereas, the respondent examined only herself. The Family Court was of the opinion that the evidence brought by the appellant before the court was not sufficient to establish that the respondent had treated him with cruelty. It was also of the opinion that the respondent has not satisfied the court that he has not condoned the cruel acts of the respondent and that he is not taking advantage of his own wrong as required under Section 23 of the Hindu Marriage Act. With these findings, the Family Court dismissed the appellant’s petition for divorce. 6. Mr. Vyas, the learned counsel for the appellant, submits that the Family Court has failed to properly appreciate the evidence brought by the appellant before the court. He submits that the appellant has stated in his evidence in detail all the acts of cruelty alleged in the petition against the respondent and there is hardly any cross-examination of the appellant on the details of the acts of cruelty. The respondent was content in cross- examining the appellant by restricting herself to giving suggestions of general nature to him. 7. In view of the submission, it will be necessary to look into the evidence led by the parties in some details. The two major acts of cruelty which are also of serious nature alleged against the respondent are that she did not allow the marriage to be consumated and that she showed unnatural and improper interest in her brother-in-law, Sachin. As regards the first alleged act, the evidence could be only of the parties, whereas, in respect of the second act, the evidence could have been of the parties, Sachin and the cousin sister who was in the house on 13th February, 2003. * 5 * FCA-30/06 The appellant, in addition to himself, has examined Sachin and his father. He has not examined his cousin sister. 8. It is the case and the evidence of the appellant that on the very first night after marriage, the respondent disclosed to him that the marriage had taken place against her wish and that she was in love with another person. That love affair could not culminate into marriage because both belonged to different castes and there was strong opposition from the respective families. After this disclosure, the respondent refused to have sexual relations with the appellant. Thereafter, also during the brief married life of four months, the marriage remained unconsumated. It is the evidence of the appellant that the house in which the family was living being small, he and the respondent used to go for sleeping at night to another flat in the vicinity, so as to have privacy. However, despite absolute privacy the respondent had not allowed the appellant to even touch her, leave alone consumate their marriage. The cross-examination of the appellant on the above evidence is limited to giving a single suggestion that the parties had physical relations when they went to honeymoon. In her written statement, the respondent has baldly denied the allegations by only referring to the concerned paragraph number from the petition. The details of the incident alleged, have not been specifically denied or dealt with. Her evidence does not fare any better. There is neither denial of the incident nor a specific statement made that the marriage has been consumated. 9. Perusal of the impugned judgment shows that there is no discussion in it on the above ground of cruelty and the evidence of the parties * 6 * FCA-30/06 thereon. In the absence of the denial in the written statement and in the absence of a positive statement in the evidence, the Family Court ought to have accepted the evidence of the appellant and held that the respondent did not allow the marriage to be consumated for the reason alleged. Instead, it held as follows : “By setting out matrimonial offences in separate paras with time and place is not sufficient to come to the conclusion that petitioner has proved his allegations. As respondent denied all his allegations in her WS and in her evidence the burden is on the petitioner to prove his allegations which he has miserably failed to do and issue no.1 is answered in negative.” . This finding is not supported by reasons as far as the allegation of cruelty is concerned. 10. The Family Court was conscious of the defective pleadings of the respondent. It however brushed aside the arguments of the appellant based thereon by stating as follows :- “Admittedly respondent has not denied word by word petitioner’s allegations but she has not even admitted them. Recital in the written statement that certain allegations in the plaint is not admitted cannot be deemed to be an admission but amounts to denial by necessary implication. Under Order 8 Rule 5 proviso the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission presuming that respondent by not specifically denying his allegations has admitted them still the burden is on the petitioner to prove them with convincing evidence, as his allegations are of serious nature defaming her character.” * 7 * FCA-30/06 11. As regards the second allegation, the appellant stated in his evidence that in the first week of the marriage, the respondent declared that she did not like the appellant and that his brother, Sachin was more attractive and that she should have got married to him. This shocked the appellant, but he thought that with the passage of time, the respondent may be able to adjust with him and start behaving properly in the house. But the respondent tried constantly to be physically near to Sachin. Whenever Sachin used to go in the bedroom, she would follow him under the guise of doing some work in that room. She shared dirty jokes with him. Initially, Sachin had ignored her jokes but eventually he started becoming more and more embarrassed and asked the respondent not to speak to him in such a fashion. About the incident dated 13th February, 2003, the appellant stated that his brother called him home from the shop and narrated the entire incident in the presence of the respondent herself. Then, the respondent broke down and started crying. She admitted her mistake and told the appellant that she had done the entire act on impulse and she would not repeat the same. 12. The above evidence of the appellant is fully supported by the evidence of Sachin. He being the crucial witness in the matter, the relevant portion of his examination-in-chief and the cross-examination is reproduced below verbatim. “I state that after the marriage of the petitioner, the respondent used to constantly try to be physically near to me. That the respondent used to follow me in the house, under the guise of doing some work in that room and flirt * 8 * FCA-30/06 with me. That the respondent used to share dirty jokes with me. I state that initially I ignored her jokes but I was embarrassed and I told the respondent not to talk to me in such a fashion. That the respondent used to grab every opportunity to purposefully touch me physically. That I had asked the respondent not to touch me any more. However, the respondent continued to touch me purposefully, as and when she got an opportunity.” A N D “I state that in February, 2003 I returned home at about 8.30 p.m. At that time, the respondent was alone in the house and after seeing me, she immediately got up to serve me dinner. That she deliberately made me sit on her sofa and sat next to me. I stated that I started to get up. However, she pulled my shirt and pulled me back on the sofa. She told me that she was not satisfied with my brother and has feelings for me. That she further told me that she likes my machoism and since there is nobody in the house it is a golden opportunity for us to come close and she tried to kiss me. I state that I immediately pushed her aside and shouted for my cousin sister who was seeing television in the adjoining house. That my cousin sister came home running and was shocked to see the respondent clinging to me. That on immediately seeking my cousin sister the respondent lef the room. I state that I narrated the entire incident to my brother i.e. the petitioner in presence of the respondent. That the respondent started crying and admitted her mistake and promised not to repeat the same again. That the respondent further requested both of us, not to disclose this fact to anybody.” 13. The short cross-examination of Sachin on the above evidence reads * 9 * FCA-30/06 as follows :- “Before February, 2003, respondent had not tried to come close to me to become intimate with me. I have ready my claim affidavit Exhibit-22. My cousin sister Sheetal Parkhe did not see the incident took place in Feb, 2003. It is not true that I have deposed falsely in para 2 Exhibit 22. I have no other witness that incident of Feb.2003 took place. It is not true that I am deposing falsely to help my brother.” 14. Surprisingly, the Family Court has treated the first admission of Sachin that the respondent had not tried to come close to him to become intimate with him before February 2003 as the evidence falsifying the appellant’s case that the respondent had declared after returning from Goa, that she wished that she should have married his brother. It has neither been the case nor evidence of the appellant that the respondent was being physically intimate with Sachin prior to February, 2003. Therefore, the admission purported to have been extracted, was meaningless. Besides, the admission could not have been used to falsify the evidence as regards the flirtatious conduct of the respondent prior to February, 2003. The Family Court then noted that neither the appellant nor his father were present in the house on 13th February, 2003 or in the last week of February, 2003. It commented that the complaint of the appellant to Stree Adhar Kendra did not refer to misbehaviour of the respondent towards Sachin. In our opinion, this circumstance cannot be said to be so extraordinary as to reject the positive evidence of the * 10 * FCA-30/06 appellant and his witnesses. In all probability, the appellant felt too embarrassed to mention it. According to the Family Court, the appellant ought to have examined his cousin Sheetal. We do not agree with the view taken, for the simple reason that it is not necessary for the appellant to examine every possible witness in the matter. If the evidence brought on record is sufficient to prove a particular fact, the further witnesses to prove fact can be dispensed with. It was lastly noted by the Family Court that even after the incidents in the month of February, 2003 the appellant allowed the respondent to stay with him till 25th March, 2003. The appellant cannot be expected to throw out the respondent immediately on the next day, particularly when it is his evidence that she had apologized to the appellant and promised to mend her ways. 15. The Family Court failed to take note of the fact that there was no cross-examination of Sachin on the details of the incident in February, 2003. Mr.Tapkir, the learned counsel for the respondent, submits that the cross-examination quoted at paragraph-11 above was sufficient to throw doubt on the story narrated by Sachin and supported by the appellant and therefore according to him, the Family Court had rightly rejected the evidence of Sachin. The first suggestion given in the cross-examination that the respondent had not tried to come close to Sachin to become intimate with him before February, 2003, does not touch the incidents of February, 2003. This suggestion relates to the evidence of Sachin that prior to February, 2003 the respondent used to constantly try to be near him, she used to follow him in the house under the guise of doing some work in the same room and flirt with him. She used to share dirty jokes * 11 * FCA-30/06 with him. The learned counsel for the respondent, then, drew’s attention to the admission of Sachin that his cousin sister, Sheetal did not see the incident that took place in February, 2003, in order to falsify the entire evidence. One fails to understand as to how this admission can falsify the evidence of the witness. It has not been the evidence of Sachin that the cousin sister Sheetal was present and had witnessed the entire incident. It has been his evidence that Sheetal came into the room only when he shouted for her and all that she saw was the respondent clinging to him. This admission extracted in the cross-examination actually supports the appellant because it shows witness Sachin as a truthful witness. Thus the absence of denials in the written statement, coupled with virtually no cross-examination of the appellant and his brother Sachin on the incidents of February 2003, it must be held that the appellant has established the occurrence of the incidents. 16. The two allegations of cruelty made against the respondent are serious enough and would strike at the very foundation of the marriage. The incidents must have shocked the appellant causing mental anguish and extreme hardship to him. This conduct would undoubtedly amount to mental cruelty. The appellant having established the two serious allegations against the respondent, is entitled for dissolution of the marriage on that count. Apart from the above findings on merits of the matter, it is obvious from the records and proceedings that there is hardly any life left in the marriage of the parties. Their married life lasted only for 6 months and they have been living separately for the last 7 years. In the circumstances, we allow the appeal. The impugned judgment and * 12 * FCA-30/06 decree is set aside. Petition No.807 of 2003 is allowed. The marriage between the appellant and the respondent is dissolved by decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act. [SMT. R.P. SONDURBALDOTA, J] [A.P. DESHPANDE, J]