1 FCA-123-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 123 OF 2010 Mr. Nilesh Eknath Shedge ] Age 29 years, Occ: Service ] Residing at Bhugaon, Tal. Mulshi ] Behind Shambhu Mahadeo Temple, ] Dist. Pune. ]..Appellant [Ori.Petitioner] Vs. Mrs. Manisha Nilesh Shedge ] Age 24 years, Occ: Household work ] C/o Ramchandra N.Mohol, ] Behind Varudekar Hospital, ] Infront of Chavan Sadan, ] Kothrud, Pune-38 ]..Respondent [Ori.Respondent] .... Mr. Tejesh Dande, Advocate for the appellant Mr. Venkatesh Shastry, Advocate for the Respondent. .... CORAM : B.H.MARLAPALLE AND U.D.SALVI, JJ. RESERVED ON : DECEMBER 16, 2010 DECLARED ON : FEBRUARY 15, 2011 JUDGMENT : [PER U.D.SALVI, J.]: 2 FCA-123-10 1 This appeal preferred against the common judgment and order dated 13th April, 2007 in P.E. No. 80 of 2006 and P.A. No. 125 of 2006 passed by the Family Court No.4, Pune at Pune, has been taken up for final hearing and disposal by consent of the parties after condoning the delay in presenting the appeal vide order dated 2nd September, 2010 and providing an opportunity to bring about the settlement between the parties vide order dated 8th December, 2010. 2 The parties were married according to Hindu religious rites at Pune on 16th February, 2001 and it was an arranged marriage. According to the appellant-petitioner, his wife the respondent shortly after the marriage started pestering him for having a separate residence and had expressed that she never liked any constraint on her freedom and being used to live in the metropolitan city like Pune and disliked the stay at the matrimonial home in a village like Bhugaon Taluka Mulshi, District Pune. The appellant further disclosed in his petition that the respondent even expressed that she had married against her own wish at the instance of her father as she had not liked his appearance. To pressurize him, the appellant further disclosed in his petition that the respondent resorted to unruly behaviour and kept herself away from the usual family chores and denied to him the physical relationship under one pretext or the other. 3 FCA-123-10 3 According to the appellant, the respondent attempted suicide by inflicting injury with blade on her right wrist in June, 2001 and lateron, this fact was made known to the parents of the respondent who had revealed the respondent for such irresponsible behaviour. The petitioner made host of allegations regarding the petitioner’s methods of harassing him particularly of giving threats of suicide. Ultimately, the appellant disclosed in his petition that he managed to acquire separate premises on leave and licence basis at Shastrinagar Kothrud, Pune on 14th October, 2003 and started residing separately from his parents with his wife the respondent. However, he added that the respondent did not mend her ways and continued to mentally harass him by variety of ways. The petitioner further disclosed that on or about 12th November, 2003 or 11th November, 2003 when he returned home around 4 p.m. he had found the respondent attempting a suicide by hanging herself to the saree to the ceiling fan. This fact the petitioner stated, was disclosed to the parents and brother of the respondent. Such behaviour of the respondent, according to the appellant, prompted him to move the Family Court with the petition for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the ground of cruelty. 4 The respondent contested the petition with the written statement dated 28th July, 2006. The allegations made by the appellant 4 FCA-123-10 were denied. The respondent countered that the appellant suspected her fidelity and subjected her to physical cruelty. She added that she was initially harassed on the ground that there was no conception and lateron when she conceived and aborted, she was taunted and abused by the mother of the appellant. According to the respondent, she and appellant made a separate matrimonial home in November, 2003 as a result of quarrel between the appellant and his mother and within eight days thereafter, the appellant left her at her parents residence under the pretext of Diwali festivities and since then, denied her cohabitation. The respondent stated that she and her relations made futile efforts to join the appellant and was ultimately driven to approach Women’s Organization to bring about resolution of matrimonial relationship between them. 5 The respondent besides resisting the petition for the dissolution of marriage, moved the Family Court for maintenance by making an application under Section 125 of the Code of Criminal Procedure, 1973. The appellant replied the said application with the reply dated 13th November, 2006. Besides denying the respondent’s contentions, he contended that the respondent had sufficient means to maintain herself inasmuch as the respondent conducted flour-mill in the name of her mother and worked as a tailor to make monthly earning around Rs.8000/- to Rs. 10,000/-. 5 FCA-123-10 6 According to the learned advocate Mr. Dande for the appellant, the facts pleaded by the petitioner to allege the attempted suicide were not specifically denied and therefore, the learned Family Court ought to have held the said facts as proved and granted the decree of divorce on the ground of mental cruelty resulting out of the respondent’s acts of attempting suicide. Para nos. 2 to 10 of the written statement dated 28th July, 2010, it is pointed out, deal with the relevant allegations. The allegations concerning attempts to suicide, have been denounced by the respondent as false. Thus, there is no merit in the submission that the lack of pleadings in the written statement offered a berth for the contentions that the facts regarding attempts to suicide stood proved. 7 Relying on the judgment reported in 2006(4) S.C.C. 558 Navin Kohli Vs. Nilu Kohli, the learned advocate Mr. Dande for the appellant submitted that there has been irretrievable breakdown of marriage in question and as such, the trial Court erred in not passing the decree of divorce. Whether the trial Court and for that matter this Court, can pass a decree of divorce on the ground of irretrievable breakdown of marriage in the petition of divorce under Hindu Marriage Act, 1955, is no more res integra. The Division Bench of this Court in Bajrang Gangadhar Revdekar Vs. Pooja Bajrang Revadekar reported in 2009(5) ALL MR 619, has already come to the conclusion that granting of decree of divorce 6 FCA-123-10 on the ground of irretrievable breakdown of marriage, is the sole prerogative of the Honourable Supreme Court under Article 142 of the Constitution of the India and such privilege is not available to us much less, to the trial Court. 8 Perusal of the evidence as led by the appellant-petitioner in his in his examination in chief reveals that virtually it is reiteration of the petition in form of an affidavit. The learned trial court, therefore, rightly observed at para 13 of its judgment that the allegations made, even at a cursory glance, appeared general, vague and omnibus in nature in contravention of the mandate of the Rule 4 of the Bombay High Court Rules framed under the Act requiring the person seeking the relief to cite specific instances with reference to the details such as the day, date and time and other particulars. Taking a cue from the judgment of the Hon’ble Apex Court delivered in the landmark case of N.G. Dastane Vs. Mrs. S. Dastane [AIR 1975 SC 1534] and A. Jaychandra V. Annel Kaur 2005(I) S.R.J.- 538, the learned trial court dismissed the alleged grievances made by the petitioner i.e. respondent has aversion to the household discipline, dislike for his looks and urge to separate as ordinary wear and tear of the matrimonial life particularly in initial stage of married life, not sufficient to establish the legal cruelty as envisaged under the Act. The learned trial court particularly observed especially in a case like the present one, 7 FCA-123-10 wherein a bride from urban life is transplanted in a rural environment, there is bound to be some unhappiness on the part of the bride which calls for patience for making the appropriate adjustments in life in the rural environment particularly in a joint family. These observations made by the learned trial court did not sound to be unwarranted in the facts and circumstances as disclosed from the evidence of the petitioner. 9 The appellant-petitioner referred to the incidence of termination of the pregnancy of the respondent on 30.12.2002. He merely referred to the advice of the Doctor for causing such abortion for the reason of destruction of foetus. However, he did not examine any medical expert or Dr. Kale who supposed to have given such advice. On the other hand, the evidence of the respondent made reference to the physical violence at the hands of his in-laws which had led to the abortion. On preponderance of probabilities, particularly in absence of any medical evidence, the testimony of the respondent needs to be given credence. Normally, the foetus would not have aborted or destroyed as alleged unless there was some physical violence as suggested in the evidence of the respondent. 10 As regards the incidences of suicide referred to by the petitioner in his evidence, the learned trial court has dismissed the said 8 FCA-123-10 allegations as baseless for want of any credible corroboration to the interested testimonies of the petitioner and his father. No medical evidence is coming forth to say that the respondent did subject herself to the physical violence in order to attempt a suicide. There is no whisper as regards the aftermath of attempting to commit suicide as suggested by the petitioner in the cross examination of father of the respondent. No flaw, therefore, can be found in the impugned judgment and order. 11 Appeal is therefore dismissed in limine with no order as to costs. [ U.D.SALVI, J.] [ B.H.MARLAPALLE,J.]