Case: Yogesh Arun Sonawane Vs. Yostna Yogesh Sonawane

2. Few facts giving rise to the appeal are stated thus :Theand the respondentwife were married as per Hindu Rites and Customs on 13.12.2006. It is the case of the husband in the Hindu Marriage Petition filed by him for grant of decree of divorce that since the beginning the wife was not behaving properly with the family members of the husband. It is pleaded that the wife behaved arrogantly with herw. According to the husband, the efforts of the husband to convince the wife to stay happily in the family went in vain as the wife continuously pestered the husband for residing separately and away from the family members of the husband. It is pleaded that the wife refused toonly with the husband and asked the husband to sever the ties with the other members of the family. It is pleaded that the wife left the matrimonial home on 1.1.2007 and on 27.1.2007 without any rhyme or reason. According to the husband, on 4.3.2007 a meeting was arranged in the house of the paternal uncle of the wife and at that time the wife refused to resumeIt is pleaded that on 5.3.2007 the wife left the company of the husband and went to reside in the parental home. The husband, therefore, filed the petition for grant of decree of divorce on the ground of desertion and cruelty. Before the Mediator, the parties agreed to give a try for saving the marriage and the husband arranged for a separate accommodation at Mangle Chawl onhighway, by paying a deposit of Rs.40,000/and on a monthly rent ofis pleaded that the wife however refused to reside with the husband in the said Chawl and asked the petitioner to secure accommodation in a good locality. It is pleaded that the action on the part of the wife in leaving the matrimonial home without rhyme or reason clearly showed that the wife had no desire to stay with the husband and his family and he was therefore entitled to grant of a decree of divorce, on the ground of desertion and cruelty.3. The wife filed the written statement and denied the claim of the husband. It was denied by the wife that she continuously pestered the husband for residing separately and away from his family members. It is pleaded that the mother of the husband treated her with cruelty. It is pleaded that she was asked to cook the food and perform the matrimonial duties despite the fact that she was pregnant and was asked by the Doctor to stay away from the kitchen. It is pleaded that the mother of the husband abused her when the husband was away from the matrimonial home and had gone to Nashik for his professional duties. It is pleaded that when the wife informed the husband after his return from Nashik about the cruel behavior of the husbands mother and his elder brother, the husband got agitated and argued with her. It is pleaded that she was prevented from talking with her parents on the telephone when the husband was away. It is pleaded that the mother of the husband started arguing with her when she was searching for some biscuits on 21.1.2007 as she was hungry. It is pleaded that she was compelled to leave the matrimonial home on 6.3.2007 and she stayed with her parents since then, along with her two daughters. It is pleaded that the separate residence arranged by the husband was in a very bad locality and was inconvenient. It is pleaded that the separate residence was secured by the husband in a locality of labourers and the residence had a roof ofThe wife sought for the dismissal of the Hindu Marriage Petition.4. On the aforesaid pleadings of the parties, the family Court framed the issues and the parties tendered evidence in support of their respective cases. The husband examined himself and reiterated the facts pleaded in the petition. The wife examined herself and also examined her father and one Nilesh in support of her case. On an appreciation of the evidence on record, both oral and documentary, the family Court came to a conclusion that the husband had been successful in proving that the wife had treated him with cruelty. The family Court, however, did not answer the issue in regard to the desertion by the wife in favour of the husband. Despite a finding that the wife had treated the husband with cruelty, the family Court refused to grant a decree of divorce in favour of the husband on the ground that the husband cannot take advantage of his own wrong. The family Court relied on the provisions of Section 23(1)(a) of the Hindu Marriage Act, 1955 to hold that the husband was not entitled to a decree of divorce on the ground of cruelty as he had not followed the terms of the settlement executed before the Mediator in the true letter and spirit by not hiring a suitable accommodation for the separate residence for himself and his wife. The judgment of the family Court is challenged by the husband by this appeal.

Reasoning:
11. Though the Family Court was justified in answering the aforesaid issue in favour of the husband, the family Court was not justified in dismissing the petition for a decree of divorce by resorting to the provisions of Section 23(1)(a) of the Act. Under Section 23(1)(a) of the Hindu Marriage Act, the family Court is not bound to grant a decree of divorce to a party despite the existence of a ground for divorce, when the party seeking divorce is taking advantage of his or her own wrong or disability for seeking the relief.12. We do not find on a perusal of the evidence on record that the husband was taking advantage of his own fault, wrong or disability for the purpose of seeking the divorce. The wife had left the company of the husband within a short period of about two and half months without any rhyme or reason as observed by the family Court. With the help of the Mediator, the parties had agreed to reside together in a separate accommodation. According to the husband, as per his financial condition he had arranged an accommodation in Mangle Wadi. The family Court observed on the basis of evidence tendered by the wifes witness Nilesh and also the photographs that the accommodation arranged by the petitioner was not proper. The family Court, while so observing did not consider the evidence of the husband that he had arranged for the accommodation as per his financial condition. The family Court erroneously gave much weightage to the report of the Marriage Councillor that the husband was not ready to reside with the wife and therefore, he had not secured a suitable accommodation.The family Court erroneously relied on the aforesaid facts to hold that the husband was taking advantage of his own wrong by not complying with the terms of the settlement recorded in the presence of the Mediator. In the circumstances of the case, it was not necessary for the husband to secure a separate accommodation for himself and his wife when the husband had clearly established on the basis of oral and documentary evidence that the wife had treated him with cruelty. The acts of cruelty on the part of the wife cannot be wiped out only because the husband had not secured accommodation as per the desire of the wife after the parties had executed the terms of settlement before the Mediator in the year 2011. It is necessary to note that the wife has without any justifiable cause left the company of the husband for more than a period of 7 to 8 years and the husband was entitled to a decree of divorce, in the circumstances of the case, more so, when the family Court had answered the issue in regard to cruelty in favour of the husband. The family Court could not have held that there was no bona fide offer from the husband and he was not ready to abide by the terms of the settlement executed before the Mediator. Undue weightage has been given by the family Court to the fact that the separate arrangement or accommodation was not suitable for the wife and the husband. When the family Court had held that the acts on the part of the wife in seeking separate accommodation tantamounted to cruelty then the family Court could not have proceeded to hold that the husband had not made any sincere efforts to arrange for the separate accommodation.We find on a reading of the unreported decisions of this Court in First Appeal No.1253/2008 (Smt. Bhawna w/o Vijaykumar Sakhare Versus Vijaykumar s/o Tarachand Sakhare) decided on 13.08.2012, First Appeal No.259/2012 (Rahul Pritamsingh Chhabra Versus Smt. Shipra w/o Rahul Chhabra) decided on 28.07.2014 (Supra) and the decision of the Honble Supreme Court reported in AIR 2002 Supreme Court 88 (Supra) that the demand by the wife to seek separate residence amounts to cruelty when there is no justifiable cause for seeking the same. In the instant case, the other evidence tendered by the husband along with the evidence tendered by him to prove that the wife was continuously pestering and demanding the husband to stay away from his relatives will surely prove that the wife treated the husband with cruelty. In the facts of the case, in our considered view, the family Court has given undue weightage to the securing of an alternate accommodation by the husband that was not satisfactory, for refusing to grant a decree of divorce by resorting to the provisions of Section 23(1)(a) of the Act. On the basis of the evidence on record, it is clear that the husband is entitled to a decree of divorce on the ground of cruelty.