1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY Appellate Side Family Court Appeal No. 33 of 2009 With Family Court Appeal No. 34 of 2009 Shri Somnath Chandrakant More Appellant Vs. Smt. Deepali @ Surekha Somnath More Respondent Mr. D.B. Lonkar for appellant. Mr. Rajesh More for respondent. CORAM: B.H.MARLAPALLE & S.J.VAZIFDAR,JJ. Dated : July 06, 2009. ORDER (Per B.H. Marlapalle,J.): 1. Heard the learned counsel for the appellant. 2. Admit. Mr. More the learned counsel for the respondent waive service. 3. By consent of the parties, appeals are taken up for hearing forthwith. Print dispensed with as the private paper book copies have been filed and R & P has been received. Perused the R & P. 2 4. Both these appeals are directed against the Judgment and Order dated 23/12/2008 rendered by the Family Court at Pune. The parties were married on 11/5/2005 as per the Hindu Vedic Rites at Pune. On 13/9/2006 they begot a daughter – Sanika. It is the allegation of the appellant – husband that the respondent withdrew from his company after the daughter was born. On 26/10/2006 the respondent lodged a complaint with the Wadner-Bhairav Police Station, Taluka Chandwad, District – Nashik against the appellant and his family members for the offences punishable under Section 498-A, 324, 504 and 506 read with Section 34 of IPC. She approached one Institution by name Mahila Hakka Sanrakshan Samiti at Ozar on 1/12/2006 and alleged ill- treatment against the appellant. She issued a legal notice to the appellant on 31/12/2006 which was replied by the appellant on 10/1/2007. It is the case of the appellant that he went to the parental home of the respondent to bring her to the matrimonial home along with the daughter and the respondent refused to return to the matrimonial home. She filed an application under Section 125 of Cr.P.C., on 22/5/2007 and it came to be registered as Misc. Application No. 28 of 2007 in the court of JMFC at Chandwad, Dist. Nashik. An F.I.R. Came to be lodged against the appellant and his family members with the Vishrambag Police Station, Pune. It is further allegation of the appellant that he received two letters i.e. Dated 3 23/2/2008 and 8/3/2008 from the respondent by post wherein she had made a demand of Rs.80,000/- to be paid by the appelalnt to her father, failing which she had threatened to file a police complaint. For all these reasons, he approached the Family Court and filed Petition No.A-351 of 2008 on or about 3/4/2008 for seeking a decree of divorce on the ground of cruelty i.e. Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 (the Act for short). 5. On receiving notice, the respondent – wife filed a counter claim in the said petition for restitution of conjugal rights. The parties were referred to marriage counsellor who submitted the failure report dated 8/7/2008. The petitioner examined himself and two more witnesses i.e. Shri Sadanand Shamkant Shinde – PW 2 and Dr. Dhananjay Vasant Neil – PW 3. The respondent examined herself as DW 1 and her mother Smt. Meena Subhash Pawar as DW 2. The Family Court framed the following issues and recorded the findings as noted against each of the issues:- ISSUES FINDINGS 1. Whether the petitioner proves that the No respondent has treated her with cruelty as alleged? 2. Whether the petitioner is entitled to get No 4 a decree of divorce u/sec. 13 of the Hindu Marriage Act? 3. Whether it is in the interest and welfare No of the minor daughter `Sanika’ to handover the custody to the petitioner? 4. Whether the respondent proves that Yes petitioner has withdrawn from her society without reasonable cause? 5. Whether the respondent is entitled to a Yes decree of restitution of conjugal rights? 6. What order and decree? As per final order The petition for divorce was dismissed and the respondent’s claim for restitution of conjugal rights was allowed. The Family Court further directed to pay an amount of Rs.800/- per month each to the respondent and her minor daughter by way of maintenance until the cohabitation between the parties would resume. The appellant is aggrieved by this order and, therefore, has filed two separate appeals. 6. The learned Judge of the Family Court noted the following admissions from the depositions of the appellant himself: 5 (a) In his reply dated 6/7/2008 to the respondent’s petitioner before the JMFC, Chandwad, he had stated that he was ready and willing to restitute the respondent’s conjugal rights and prayed for dismissal of the application for maintenance on that ground. The petition for divorce was filed on 3/4/2008 i.e. before he had filed the reply to the application for maintenance. The inference thus drawn that he had no intention to dissolve the marriage because on 6/7/2008 i.e. after the petition for divorce was filed he submitted reply on oath before the court of JMFC, Chandwad that he was ready and willing to restitute the respondent’s conjugal rights. (b) Not a single specific instance or instances of cruelty, either mental or physical, during the period of co-habitation was stated either in the petition memo or in the oral depositions before the court. On the contrary, he admitted that the respondent was living with his family lovingly and cordially and they lived a very happy life for 13 months. He also admitted that because of the happy marriage life between two, the respondent conceived and gave birth to a daughter. 6 7. The turn of events led to allegations of cruelty had commenced only from the day the respondent had gone to her parents’ home for delivery. So far as the legal notice dated 4/12/2006 is concerned (Exh. 46) and the reply thereto by the petitioner- appellant at Exh. 26, the Family Court recorded that the tone of reconciliation was obvious and both of them had shown their willingness to cohabit with each other at least till 10/1/2007. 8. Mere filing of complaint with the police station against the appellant and his family members could not be a ground for mental cruelty. The Family Court in this regard referred to the decision of the Supreme Court in the case of S. Hanumantha Rao vs. S. Ramani Rao [AIR 1999 SC 1318] and a decision of this court in the case of Sadhana vs. Satish [2005 (2) Bom. C.R. 340]. The Family Court held that in case on account of filing of such a complaint, the respondent-wife fails to prove the allegations during the pendency of the divorce petition, there may be a ground of mental cruelty. If the complaint was put on trial and the competent court dismissed the complaint during the pendency of the divorce petition, the Family Court may take cognizance of such acquittal order and grant divorce on the ground of mental cruelty. In the instant case, the complaint was filed with the police station and nothing further happened during the pendency of the divorce petition and till it was decided. The complaint was not tried resulting in the acquittal of the petitioner and his family members. 9. The appellant examined PW 3 – Dr. Dhananjay Neil from the Government 7 Mental Hospital at Yerawada in support of his case that because of the treatment meted out to him by the respondent he had become a case of schizophrenia . The certificate dated 20/8/2008 was brought on record along with the documents at Exh. 36 and the said certificate stated that the appellant was under treatment for paranoid schizophrenia from 29/2/2008 to 20/8/2008. However, doctor stated that suffering of the appellant could not be attributed to a particular person and, therefore, the Family Court rightly held that the mental illness of the appellant could not be attributed to any acts of the respondent. We are, therefore, satisfied that the findings recorded by the Family Court against the appellant and that he could not prove any instance of either mental or physical cruelty meted out to him allegedly by the respondent do not call for interference. Consequently, the dismissal of the petition for divorce on the ground of cruelty is justified and, therefore, the appellant was not entitled for a decree of divorce. 10. When the correspondence between the parties indicated that both of them were inclined to cohabit with each other and there was no evidence that the respondent had withdrawn the company of the appellant, the decree of restitution of conjugal rights would follow. It was the case of the appellant that he tried and made efforts to persuade the respondent to join his company at the matrimonial home. Whereas it was the case of the respondent that despite several messages sent by her, the appellant never visited her parents’ home to bring her back to the matrimonial 8 home. The Family Court noted one incident of the appellant’s visit to his in-laws’ and during that visit it appears there were some quarrels between the parties and that led to the respondent filing a police complaint. That by itself will not be a ground to refuse the decree for restitution of conjugal rights. The Family Court did not believe that the appellant had gone to his in-laws’ house on 23/1/2007 and rightly so. For fixing the maintenance amount, in the event the decree for restitution of conjugal rights was not executed or not allowed to be executed, the Family Court has taken into consideration the needs of the respondent and the expenditure she would need for the upbringing of the minor daughter and fixed a total amount of Rs.1600/- per month. We do not find any reason to interfere with the same. 11. Hence, both the appeals fail and the same are hereby dismissed. (S.J.VAZIFDAR,J.) (B.H.MARLAPALLE,J.)