1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE FAMILY COURT APPEAL NO. 79 OF 2003 SARFRAZALI NAWABALI MIRZA ) residing at Flat No. 702 ) Andheri "Garden View" Co-op. ) Housing Society, X-13, Shastri ) Nagar, Off. J. P. Road, ) Andheri (West) MUMBAI 400 053. ) .. APPELLANT (Org. Respondent) VERSUS Mrs. FARIDA alias SANAM SARFRAZ) MIRZA, residing at Flat No. 45,) 7th floor, "Sagar Darshan" Bldg. Bhulabhai Desai Road, ) MUMBAI 400 026 ) .. RESPONDENT (Org. Petitioner) Mr. H. S. Shreepad Murthy for the appellant Mr. Vijay Nayar i/b O.A. Siddiqui for respondent CORAM:SMT.RANJANA DESAI & SMT. R.P. SONDURBALDOTA, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 17TH JUNE, 2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 26TH JUNE, 2008 2 JUDGMENT:-(Smt. Ranjana Desai, J.) . The appellant is the husband and the respondent is the wife (for convenience they shall be referred to as "the husband and the wife respectively). The appellant is the original petitioner and the respondent is the original respondent. The husband has challenged in this appeal judgment and order dated 30/6/2003 passed by the Family Court, Mumbai, in Petition No. A-1015 of 2000, filed by the wife for divorce on the ground of cruelty. By the impugned order the petition was allowed and the marriage between the husband and the wife stood dissolved by a decree of divorce. 2. It is necessary to begin with the gist of the facts. The husband and the wife are Muslims. They got married on 20/5/1998 at Mumbai as per Muslim Rites. It is the case of the wife that the husband came in contact with her due to an advertisement given in the Times of India in the month of October/November 1986 by her family for matrimonial alliance for her. After their marriage they started residing in Flat No. 702 Garden Building, Andheri Garden View Co-operative Housing Society, 3 X-13, Shastri Nagar, Opposite Four Bungalows, J. P. Road, Andheri (w) Mumbai ("the said flat" for convenience). 3. The case of the wife is that the husband committed cruelty on her while they were staying in the said flat as well as during her stay with him in Tanzania. We shall at the appropriate place advert to the instances of cruelty narrated by the wife. According to the wife due to the inhuman treatment meted out to her she returned to her parents house in the year 1996 and since then they are living separately. It is the case of the wife that the husband falsely contended that he has contributed towards the purchase of the said flat. His claim that he is the owner of the said flat is false. In the circumstances the wife filed a petition for dissolution of her marriage on the ground of cruelty under Section 2(ii)(viii)(a) & (d) of the Dissolution of Muslim Marriages Act, 1939 ("the said Act" for short). She claimed Rs.11,000/- as Meher amount and Rs.58,000/- towards iddat period of three months and ten days. 4. The husband resisted the wife’s claim by filing written statement. He denied that he ever 4 ill-treated the wife. According to him he has contributed Rs.1,50,000/- towards the purchase of the said flat. According to him the wife’s brother and sister did not like Kandivali premises where he was staying. Therefore, it was decided to purchase a flat at Andheri. He paid Rs.1,50,000/- for the purchase of the said flat on the assurance given by the wife’s brother that his name will be inserted as owner of the said flat after making some adjustments. According to the husband, the said flat was the matrimonial home of the couple. It was not exclusively owned by the wife and hence the husband cannot be evicted. The husband denied all allegations of cruelty. 5. In support of her case the wife examined herself. She also examined Safiya Mohammed her sister and Usha Sapkal her maid. They were cross-examined. The husband filed his affidavit in lieu of examination-in-chief. He was cross-examined by the other side. He also examined one John Wren D’silva, who was also cross-examined. 6. After perusing the oral and documentary evidence, learned Judge of the Family Court by the impugned order dissolved the marriage by a decree 5 of divorce. He directed the husband to pay Rs.11,000/- to the wife towards Meher. He further directed the husband to hand over the possession of the said flat to the wife within three months from the date of the judgment. He further directed the husband to pay costs quantified at Rs.3,000/- to the wife. Being aggrieved by the said judgment and order the husband has approached this court. 7. Before we deal with the rival contentions one important event which has taken place after the appeal was admitted must be noted. Initially the wife had filed proceedings under the said Act in this court. In those proceedings by order dated 18/6/99 this court had directed the husband to pay compensation at the rate of Rs.5,000/- per month for the use and occupation of the said flat. Subsequently the proceedings were transferred to the Family Court and the Family Court passed the impugned order granting divorce. After the instant appeal came to be admitted the husband took out a motion for stay. On 3/12/2003 the Division Bench of this court granted stay subject to the payment of Rs.5000/- per month by the husband to the wife as compensation for the use of the said flat. As the husband did not pay the compensation amount the 6 wife filed a civil application for vacating the stay order. By order dated 15/7/04, the Division Bench vacated the stay granted earlier. Court Receiver, High Court, Bombay was appointed to take charge of the said flat and hand it over to the wife and the statement of the wife’s counsel was recorded that the wife will not transfer the said flat till the disposal of the appeal. Appeal carried from this order to the Supreme Court was dismissed by the Supreme Court by extending the time to hand over possession of the said flat to the wife. Pursuant to this order possession of the said flat is handed over to the wife. She is in possession thereof. 8. We have heard Mr. Murthy, learned counsel for the husband in support of the appeal. We have also gone through the written submissions tendered by him in the court. 9. Mr. Murthy submitted that under section 2 sub-clause (viii)(a) of the said Act to constitute cruelty the husband must habitually assault the wife or make her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment. Mr. Murthy submitted that 7 the wife has not proved any incidents of habitual assault or any particular conduct which made her life miserable. Her oral evidence does not inspire confidence. Mr. Murthy submitted that the wife has alleged that the husband called her ’randi’ or ’kutti’ in Tanzania during the period beginning from 1989 till 1991. The wife did not make any complaint about this conduct. The allegations surfaced only in her petition filed in April, 1998. After the couple returned from Tanzania they lived together in the said flat till he left for Mombassa. There are no allegations of illconduct during this period. Mr. Murthy pointed out certain letters from the record, which according to him show that their relations were extremely cordial and loving. Mr. Murthy contended that Ms. Vinni, the maid would have been the best witness to depose about the alleged cruelty. But Vinni was not examined by the wife. Allegation made in the plaint that the husband refused to take her to Mombassa is contrary to her evidence to the effect that the husband asked her to accompany him to Mombassa but she refused. Mr. Murthy further contended that the photograph produced by the wife in support of her contention that she was assaulted is not proved by her. It is a manipulated 8 photograph. No medical certificate is produced by her. Thus the wife has failed to prove cruelty. All instances narrated by the wife are trivial and they can be described as normal wear and tear of matrimonial life. 10. Mr. Murthy pointed out that under clause (d) of Section 2(viii) of the said Act, if the husband disposes of wife’s property or prevents her from exercising legal rights over it, such conduct amounts to cruelty. He pointed out that in the plaint the said flat is referred to as the matrimonial home. It is clear from the plaint that the said flat was purchased for the benefit of both. The husband contributed an amount of Rs.1,50,000/- towards the purchase of the said flat, however, as the said flat was purchased prior to the marriage the husband’s name was not included. Therefore, the husband cannot be prevented from staying in the said flat unless a provision is made for him. 11. Mr. Murthy submitted that assuming without admitting that the husband used foul language on some occasion, a stray incident does not amount to cruelty. In this connection he relied on the 9 judgment of the Kerala High Court in Kunhamma v. Khadija, AIR 1973 Kerala 49. Mr. Murthy further submitted that the couple desired to have a child. It has come on record that they went for treatment to Dr. Irani in 1994 and 1995. In Tanzania the wife had a miscarriage. Therefore, the case that the husband had made the wife’s life miserable does not stand to reason. Mr. Murthy submitted that the reasoning of learned Judge is totally erroneous. The impugned judgment cannot stand the scrutiny of this court and hence it may be set aside. 12. Mr. Nayar, learned counsel for the respondent on the other hand submitted that the impugned judgment is well reasoned and perfectly justified. He submitted that the wife has adduced cogent and reliable evidence to prove her case that the husband has treated her with cruelty. He submitted that he has not produced any evidence to show that he has contributed any money towards the purchase of the said flat. He submitted that the husband has tried to usurp the wife’s property. By staking a claim to the property which does not belong to him but belongs to his wife, the husband has made out a case for decree on admission against himself. 10 He relied on the judgment of the Supreme Court in Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 in support of his submissions. 13. Plight of women who are victims of matrimonial discord is the same all over the world. Cruelty to women cuts across all religions. In Samar Ghosh’s case (supra) the Supreme Court considered what is cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act. It reads thus; ."13. Divorce:-(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party - (i) ------- (ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty." 14. Relevant provision of the said Act pertaining 11 to cruelty as a ground of divorce reads thus; . "2. Grounds for decree for dissolution of marriage.- A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely; (i) ..... (vii) ..... . (viii) that the husband treats her with cruelty, that is to say:- (a). "habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or 15. Thus, Section 2(viii)(a) makes habitual assault by a husband on the wife a facet of cruelty. But it also includes cruelty of conduct which makes a woman’s life miserable, even if such conduct does not amount to physical ill-treatment. Implicit in this is, therefore, mental cruelty. It 12 can be habitual beating or mental cruelty or cruelty of conduct which can make a woman’s life miserable. Once it is accepted that cruelty has no religion, judgment of the Supreme Court in Samar Ghosh’s case (supra) can be referred to for understanding what is meant by cruelty in the context of matrimonial laws. In Samar Ghosh’s case (supra) the Supreme Court referred to its earlier judgments in N. G. Dastane (Dr.) v. S.Dastane (1975) 2 SCC 326 and G. Bhagat v. D. Bhagat (1994) (1) SCC 337 and held that if on consideration of complete matrimonial life of the parties it is seen that there is acute mental pain, agony and suffering which would not make it possible for the parties to live with each other that could amount to mental cruelty. Mental cruelty, noted the Supreme Court, is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of the other for a long time, may lead to mental cruelty. A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse, sustained unjustifiable conduct and behaviour of one spouse actually affecting the physical and mental health of the other spouse may lead to 13 mental cruelty but the acts complained of and the resultant danger or apprehension must be very grave, substantial and weighty. The Supreme Court further observed that to amount to cruelty the ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party. The Supreme Court further added that mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty." 16. We shall examine the evidence adduced in this case in the light of above observations of the Supreme Court. The wife has in her evidence stated that she belongs to Arab community which originates from Kuwait. She did not want to marry a Kuwaiti person because Kuwaiti persons are busy in their business and they do not love and take care of their wives. Hence she decided to marry an Indian. She gave advertisement in the Times of India. The 14 husband sent a letter to her in response to the said advertisement and thereafter the marriage was fixed. For about one year the husband continued to visit their house. According to the wife her brother told the husband that the wife would not be able to live in his house at Kandivali and, therefore, he would purchase a suitable flat for her to which the husband agreed. Her brothers Jashim and Abdul Aziz, therefore, purchased the said flat by paying the entire consideration in the joint name of herself and her brother. After the death of her brother the share certificate stood transferred in the joint name of the wife and her sister Safia. In proof of her case that she is paying the maintenance of the Society, wife has produced receipts of maintenance. After marriage they stayed in the said flat. She found that the husband was a miser who purchased substandard goods. He was a hot tempered man and used to fight with her on petty matters. He used to abuse her in filthy language before her servant and her sister. He used to call her "randi". In the year 1989 he got a job in Tanzania. The wife’s sister arranged for a maid for her. She left for Tanzania along with the husband. She took her maid with her. They left on 1st August, 1989. According to her at 15 the Airport she told her husband to carry one of his bags. At that time he called her "randi" and abused her and threatened to slap her. During the flight he kept abusing the members of her family including her dead mother. Even at Tanzania the husband continued with his miserly behaviour. Once he took her and her servant to the hotel and ordered only one Thali for three persons. She requested him to order at least two Thalis. He abused her and called her "Kutti" (Bitch) in front of all persons sitting there. According to the wife during her stay at Tanzania he did not give her any money. She had to call for money from her sister. On one occasion she called one person to clean the house. That person asked for 500 Tanzanian shillings as washing charges. The husband paid him only 100 Tanzanian shillings. That man started crying. She told the husband to pay him at least 200 Tanzanian shillings. At that time the husband became wild and abused her. He assaulted her with iron rod because of which blood started oozing out from the wound on her shoulder. According to her the husband used to beat her quite often. He was violent in his behaviour. He would raise shoe at her time and again. According to the wife many times he used to wake her up at 2 a.m. 16 or 3 a.m. at night and ask her why she had hanged the clothes at a particular place and ask her to say that ’she was mad’. She, therefore, became nervous about his mental disorder. She wanted to return to India but her passport was with the husband. At last she returned to India after one and a half year. The husband returned to India after two years because he was sacked from service by the company. 17. The wife has further stated that after his return he got job at Mombasa (South Africa). He told her to accompany him to Mombasa. She refused because of her bad experience in Tanzania. After about one and half year he came back from Mombasa and they started staying in the said flat. According to her during Ramzan of 1996 she served him half fried eggs. When he finished eating the eggs she told him that she would clean the plate. At that time he became violent. He dealt fist blows on her nose, eyes etc. She asked him as to why he was hitting her. He told her that he wanted to kill her. She narrated this incident to her sister who came to her house at night. She then took her to Cooper Hospital on the next day. She has tendered in the court photograph which is at 17 Exhibit-2 showing the injuries suffered by her. She has also tendered the negatives thereof which are at Exhibit-3. According to her she went to lodge police complaint but she was told that her husband would be arrested and, therefore, she came back without registering the complaint. Thereafter she come to the conclusion that because of the husband’s behaviour her life was in danger. She sent him a notice through Advocate Siddiqui. A copy of this notice is on record at Exhibit-4. In the circumstances she has prayed that she may be granted divorce. 18. In the cross-examination she has frankly admitted that she was used to luxurious life at her parents house because she belongs to Arab community but she has also stated that she does not consider herself superior to other Muslims. She has reiterated that the husband’s Kandivali house was not suitable for her and, therefore, her brother told the husband that she would not be able to stay there. The husband agreed to shift from Kandivali flat and, therefore, the said flat was purchased. She has stated that the entire marriage expenses were borne by her family. She has admitted that she was taking treatment from Dr. Mangeshkar for 18 fertility. She has also admitted that in 1993 she took fertility treatment from Malpani Nursing Home and in October,1994 and February, 1995 she took treatment from Dr. Faram Irani but the treatment failed. 19. She has affirmed that in the year 1988 she stayed in the said flat with her husband. The husband used to torture her badly and hence she went to stay with her sister at Warden Road. She has denied that the photograph tendered by her in the court showing injuries suffered by her has no connection with the incident of beating deposed to by her. She has denied that she has falsely stated that her sister used to send her money because her husband did not pay her. She has stated that her sister used to send her money through one Rohit Patel. She has denied that she has filed petition for divorce on false grounds. 20. The husband has not been able to make any dent in her basic case of cruelty in the cross-examination. All that is suggested is that she came from an affluent family and could not adjust with the husband who came from a poor family. It is suggested that she did not visit her 19 mother-in-law and that she did not like her mother-in-law staying with her. The wife has denied this. A case is tried to be made out that the husband was drawing a meagre salary and this fact was made known to her. It is further put to her that the husband found her family to be egoistic and hence he had refused to marry her. The wife has denied this. In our opinion, though disparity in the status of both the families is evident, it would be wrong to conclude that because of that the wife misbehaved. The husband has not been able to prove even a single incident from which it can be said that the wife behaved arrogantly and made his life miserable. On the contrary it is the wife’s case that because Arabs are businessmen and they do not take care of their wives, she wanted to marry an Indian. From the evidence it appears to us that after marriage she was sadly disillusioned. We find the wife’s evidence to be credible. It inspires confidence. Her evidence about the husband’s cruelty is supported by the evidence of her sister Safiya and her maid Usha. Safiya has stated that after their marriage the husband and wife shifted to the said flat. Their maid Usha accompanied them. The husband was hot tempered and he used to abuse and 20 beat the wife. He physically and mentally tortured the wife. She has referred to the incident when the husband assaulted the wife with iron rod in Tanzania. She has also referred to the fist blows dealt by the husband to the wife in Ramzan due to which there was bleeding from the wound caused on her shoulder. In the cross-examination she has remained firm. Her evidence on cruelty supports the wife’s case. 21. The wife has also examined her maid Usha. Usha has stated that the husband used to behave in a very cruel manner with the wife. He used to call her ’randi’. He used to abuse her sisters. He used to physically assault the wife. She has also deposed about the beating received by the wife during Ramzan. In the cross-examination Usha has denied that she was giving false evidence. We find evidence of this witness to be truthful. Thus Safia and Usha support the wife. The husband’s evidence does not inspire confidence. Besides he has not examined any witness in support of his case that he behaved well and it is the wife who was behaving arrogantly. 22. The wife has admitted the greetings or letters 21 brought on record by the husband. She