1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE FAMILY COURT APPEAL NO. 48 OF 2006 WITH FAMILY COURT APPEAL NO.49 OF 2006 Mr. X : Appellant V/s. Mrs. Y : Respondent ... Mr. Niranjan Mogre with Mr. Sachindra B. Shetye for the appellant. Mr. M. V. Jaykar i/b M/s. M. V. Jaykar and Co. for the respondent. .... CORAM: S. A. BOBDE & S. J. KATHAWALLA, JJ. DATE: NOVEMBER 24, 2009. 2 ORAL JUDGMENT (Per S. A. Bobde, J.) 1. The appellant – husband has preferred Family Court Appeal No.48 of 2006 against the judgment and order of the IInd Family Court at Bandra, which allowed the respondent – wife’s petition for divorce (Petition No. A-436/1999) on the ground of cruelty and dissolved the marriage between the parties. The Learned Trial Court had consequently dismissed the petition filed by the appellant, after the petition for divorce was instituted against him, for restitution of conjugal rights (Petition No. A-624/1999). The learned counsel for the appellant has stated before us that he is not pressing the appeal against the dismissal of the said petition, viz., Family Court Appeal No.49 of 2006, for restitution of conjugal rights. Accordingly, Family Court Appeal No.49 of 2006 stands disposed of as not pressed. 2. The parties were married on 17.4.1998 in Mumbai. They cohabited for a period of 45 days. Apparently, the respondent left the appellant’s company on 3.6.1999, due to the cruel treatment he meted out to her, and the parties have not cohabited ever since. With a view to see if a settlement or reconciliation was possible, at this stage, we interviewed the parties in chamber and found that no reconciliation is possible between them. 3 3. In deciding whether there is any merit in the appeal of the appellant - husband against the order of divorce granted against him on the ground of cruelty u/s 13 (1) (ia) of the Hindu Marriage Act, it is to be examined whether the behaviour of the appellant towards the respondent falls within the legal conception of cruelty. As defined by the Hon’ble Apex Court in Dastane v. Dastane [(1975) 2 SCC 326] and reiterated in several decisions thereafter: “The enquiry has to be whether the conduct charged as cruelty is of such character as to cause in the mind of the petitioner, a reasonable apprehension that it will be harmful or injurious for him to live with the respondent...” According to the respondent, from the date of marriage itself, she was subjected to physical and mental torture and repeated humiliation. Before the Court, the respondent deposed to and gave evidence of several instances of cruelty. One instance was on 20.4.1998, when the respondent was abused by the appellant in front of several people at Tirupati because a toe-ring that she had worn had fallen off and was lost. On another occasion, when the parties were at a pooja in Mangalore, the appellant called the respondent “an old and ugly bride” merely because she was wearing a large bindi. On several occasions, he called her a “rascal, idiot, dumb”, etc. in front of their relatives or outsiders to make her feel humiliated. At another instance, at Mangalore, the appellant suddenly got-off the 4 auto-rickshaw in which they were travelling, without warning, despite the fact that the respondent was unfamiliar with the city. Immediately, when she returned to fetch him, he deliberately asked her about how she enjoyed the ride with the auto-rickshaw driver. Apparently, with reference to the incident, thereafter the appellant’s sister, Mrs. Geeta Shetty, is said to have gone around telling people that the appellant had gone “freaking” around the city by herself, while leaving her husband behind. In relation to this auto-rickshaw incident, the learned counsel of the appellant has submitted that the findings of the Trial Court are incorrect. He refers to certain alleged discrepancies, where it appears from evidence of the respondent that she initially said that he stopped the auto- rickshaw and got out and later she said that he got off the moving rickshaw. We have examined this evidence. It is clear that the reference is to two different instances i.e. while going to the market and while coming back. It is difficult to imagine any reason why the appellant would behave in this manner so that he could later ask the respondent if she enjoyed the ride with the rickshaw driver; in other words, to humiliate her by casting aspersions on her character. The decision of Hon’ble Apex Court in A Jayachandra v. Aneel Kaur [(2004) 10 SCALE 153] deserve mention here: “When the whole conduct of the spouse shows instances of ill- treatment, use of abusive language and allegations which amount to casting aspersions on the fidelity of the other spouse and in general 5 have the effect of demoralizing the spouse, against whom the allegations are levelled, causing mental stress and agony, mental cruelty is proved.” With this is mind, we have no hesitation in holding that this conduct of the appellant in the present case, towards the respondent amounted to mental cruelty. 4. Besides the above, the respondent has also deposed to two other instances of physical cruelty. On 16.5.1998, the appellant slapped her across her face, simply because she had forgotten to mention that her sister had telephoned, and thereafter, he left the house while confining her inside. The other incident occurred on 1.6.1998, which as per the respondent’s deposition, occurred because she asked her mother to send her some sev for cooking with the appellant, who was at her mother’s place at the time, as he had warned the respondent not to leave their house. The respondent’s mother apparently mentioned this conversation while talking to the appellant. Thereafter, on returning home, the appellant assaulted the respondent mercilessly, delivering blows to her chest while sitting on her belly. He further threatened that if she went away to her maternal home, he would portray her as an unchaste wife, thereby adding to her agony. Although this incident happened when the parties were alone, it is proved by the respondent by leading the evidence of a Doctor, who took and examined an X – Ray of her chest area, soon after the incident. The Doctor deposed to the 6 examination of the respondent and validated the X – ray, which revealed a pneumothorax on the right side of her chest. He also deposed that the respondent did not give him any reason or explanation for the injuries. The learned counsel for the appellant, however, submitted that firstly, the cross – examination of the Doctor showed that he had not clarified whether the pneumothorax caused in the present case was spontaneous and traumatic in nature and secondly, since there was no injury to the bone, the respondent had made out a false case. From the evidence, it is not possible to conclude that the Doctor has stated that since there is no injury to the bone, pneumothorax could not be due to the assault. There is no reason for the Doctor to have cooked up a false case. In fact, he stated in his cross-examination that the suggestion that he is giving biased evidence in favour of the respondent is an insult to him. We find that the evidence that pneumothorax is the result of the appellant’s repeated blows to her chest. There is no reason to disbelieve it. The incidents referred to hereinabove clearly amount to cruelty. 5. What is cruel treatment must to a large extent be a question of fact. The Hon’ble Apex Court, in Savitri Pandey v. Prem Chandra Pandey [AIR 2002 SC 591] has cautioned that there is a difference between cruelty and the ordinary wear and tear of married life. Petty quarrels and troubles, caused by differences in the temperament of the parties cannot be cruelty. There is no doubt in our mind however, that in the present matter the respondent was subjected both to physical and mental cruelty by the appellant. It is not necessary for us to refer to the other instances and allegations made by the respondent. That she could endure such 7 behaviour no longer is clearly seen by the fact that she began to suffer from depression and was finally forced to leave her matrimonial home in order to escape such treatment. 6. Before we part with this judgment, we must mention the other contention of the learned counsel for the appellant, where he submits that the petition for dissolution on the ground of cruelty has been presented before the expiry of one year from the date of marriage and was therefore untenable before the Trial Court due to the bar laid down in section 14 of the Hindu Marriage Act, 1956. The marriage took place on 17.4.1998 and the petition for divorce was presented on 20.2.1999. Section 14 of the Hindu Marriage Act reads as follows: “14. No petition for divorce to be presented within one year of marriage. - (1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage: Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner 8 obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed. (2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.” It is obvious from a bare reading of the section that the petition can be presented before the expiry of one year from the date of marriage, by obtaining leave of the Court. In any case, the proviso suggests that a decree obtained within one year on the basis of a defective bone, even one obtained by misrepresentation does not invalidate the decree ip so facto; but the Court has a discretion to order that the decree shall become effective after a year. A defect in the nature of leave granted by the Court is a mere irregularity which the trial Court may not act upon. The appellate Court certainly has a wide discretion to refuse to interfere 9 on such a ground. We, accordingly, refuse to go into the question whether the leave was properly granted at this stage of the proceedings. We note that in the present case, the Trial Court had indeed granted leave to the respondent to present the petition for divorce. According to the learned counsel for the appellant, the leave has not been granted in accordance with the law i.e. on considerations germane to the provision. We however find that that at no stage throughout the trial, or in the Memo of Appeal, has the appellant raised any ground pertaining to the correctness of the leave granted by the Court. Rather, the grounds raised by the appellant in the Memo of Appeal show that the appellant questioned the validity of the proceedings on the basis that no leave had been sought or granted. Only after it was pointed out that, in fact, the Court had granted leave, did the learned counsel for the appellant seek to contend that leave was not granted properly. The appellant did not at any stage of the trial, after receiving notice of the petition, raise any objection about the presentation of the petition within one year and that leave was not obtained. Obviously, no objection was raised because the appellant was aware of the order granting leave, and did not wish to object. It is clear that this objection is being raised at this stage only because the decision has gone against the appellant. 7. That apart, we find that the facts of the case, as found by the Family Court and upheld by us, justify the presentation of the petition before the expiry of one year from the date of marriage. It is true that Section 14 has been enacted with the object of discouraging young spouses from taking recourse to legal proceedings 10 for divorce in a frivolous and irresponsible manner. However, the section provides two exceptions to this rule i.e. where the petitioner faces exceptional hardship or exceptional depravity at the hands of the respondent. It is for the Learned Judge, who hears the application to decide as per the circumstances whether prima facie a case of exceptional hardship or depravity has been made out. The appellate Court will not interfere with the Trial Judge’s discretion unless he has proceeded on a wrong principle of law, or failed to have regard to some material consideration or some gross injustice has occurred. [Meghanatha Nayagar v. Shrimati Susheela (AIR 1957 Mad 423)]. Further, Section 14 (2) requires that the Court, in such petition, ought to have regard to firstly, the interests of the children, if any, and secondly, of any possibility of reconciliation between the parties before the expiration of one year from the date of marriage. As is apparent, there was no possibility of reconciliation between the parties at any stage after the respondent left the matrimonial house, in view of the cruel treatment meted out to her. We have found that the behaviour of the appellant made cohabitation of the respondent with him impossible and therefore, no reconciliation was possible. As of now, it is clear that the parties have not cohabited for a period of 12 years since the date on which the respondent left the appellant’s company. We find that the behaviour of the appellant toward the respondent did indeed put her through exceptional hardship and left no scope for reconciliation. We hence find no merit in the argument of the respondent that the Trial Court had granted leave without justification. 11 8. In the result, we find that the judgment and order of the Learned Family Court is not liable to be interfered with and there is no merit in Family Court Appeal No.48 of 2006, which is hereby dismissed. (S. A. BOBDE, J.) (S. J. KATHAWALLA, J.)