Callous attitude of wife amounts to cruelty and cannot be regarded as trivial matters: Bombay High Court

 on 07 04 2021 on 14 04 18 FCA 106 2012.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 106 OF 2012 Sunesh Sudhakar ReleAge: 44 years Occu: Nil R o. 3 Sarla Sadan Haldankar Bridge Mumbai 400007. … Appellant District: Thane Pin Code : 401 303. … Respondent of the Special Marriage Act 1954has been dismissed. 2The appellant husband entered into the matrimonial alliancewith respondent wife on 10th July 2008 by registering the marriagewith the Registrar of Marriages Old Custom House ShahidBhagatsingh Marg Fort Mumbai No.1. Parties have no issue fromthe wedlock.3It is the case of the appellant that from the day of theirmarriage the respondent was not very happy and was not talkingwith him and his family nicely. On the next day of the marriageitself the respondent informed the appellant and his parents thather father had forced her into this marriage and had not allowed toget married to the person she wanted to and she had no intentionto continue with this marriage and would do everything to break Rekha Patil 2 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtup this marriage as she wanted a divorce. 4The appellant husband further alleged that after theirmarriage the respondent started cruel and rude behaviour withhim and his parents who are senior citizens. She used to abuse hisparents for petty issues and also used to give bad words to themand threatened to beat them on several occasions. 5Appellant husband then contends that the respondentinformed him of having an affair with some other boy who wasvery well known to her father but her father was against the saidrelationship he did not inform the same to the appellant and hisparents and concealed this material information and forced her tomarry him against her wish. This speaks volumes of mental crueltythat the appellant and his parents had been a victim of. She alsoexpressed her intention of being not interested in the said marriageand also said that she would continue to keep sexual relations withthe other men even after her marriage with him with the soleintention of humiliating and spoiling him and his family name inthe society. Rekha Patil 3 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odt6According to appellant husband he was tolerating such cruelbehaviour of the respondent just to save his marital life but aftertwo months of the marriage in the month of September 2008 therespondent picked up a quarrel and started abusing him for noreason. Even she left the matrimonial home only to return after tendays with an intention of divorce. 7The appellant husband further alleged that the respondentused to avoid the physical relations and would tell that she wasgetting sexual satisfaction from other men and did not need to keepany sexual relations with him as he is of short height not havinggood physique and not having real hair and wears a wig. 8Ultimately the respondent left the matrimonial house on 23rdApril 2009 and took all her ornaments along with her. Afterleaving the matrimonial home the respondent even sent a legalnotice and claimed of having been pregnant although she was notpregnant and had no signs of any pregnancy when she left thematrimonial home. Rekha Patil 4 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odt9The appellant husband lastly states that the respondent hadmade his life very miserable and it is very difficult to live togetherand to enjoy marital life. It is against this backdrop the appellantinstituted the Petition for divorce on the ground of cruelty. 10The aforesaid Petition was resisted by the respondent wife byfiling her written statement at Exh. 13. The allegations made inthe Petition were denied by the respondent. It is the case ofrespondent that she never asked divorce from the petitioner andrather it was appellant who repeatedly asked for divorce as hewanted to remarry again with other girl for sake of fun andenjoyment. She denied that she ill treated her in laws and everassaulted them. It is her case that she had never any affairs withanother person before her marriage and as the appellant and hisfather asked from her father dowry by way of moneys and flat andas the same was refused they have thrown mud on her cleancharacter. She also alleged that due to harassment and mentaltorture by the appellant she suffered a miscarriage. 11According to respondent wife she was always ready and stillRekha Patil 5 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtready to stay with the appellant and lead a peaceful married lifeand there being no merit in the Petition the same is liable to bedismissed with costs. 12The learned trial Judge framed issues at Exh. 15. Afterrecording the evidence the learned Judge came to the conclusionthat the appellant has failed to prove that the respondent treatedhim with cruelty as contemplated under Section 27(d) of the Act.The learned Judge accordingly dismissed the Petition of divorce. 13Mr. Sanglikar learned counsel appearing for the appellant husband submitted that the learned Judge of the Family Court hasgravely erred in dismissing the Petition. He submitted that thelearned Judge failed to appreciate Section 27(d) of the Act andrather after going through the said provisions he ought to havearrived at a conclusion that the appellant was entitled for decreefor divorce. 14Stretching the submissions further the learned counselcontended that the learned Judge of the Family Court ought toRekha Patil 6 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odthave held that the respondent was very cruel in her behaviourtowards the appellant and his parents as she continuouslyharassed abused and assaulted the parents of the appellant. 15Similarly the respondent wife was never interested incontinuation of the marriage with the appellant husband and wasmore interested in snatching and or exploiting moneys from theappellant and this fact is evidently clear from her illegal demand ofRs.10 lakhs for giving consent for decree for divorce. Learnedcounsel also invited our attention to the notice which contains notonly abusive words but also demand of Rs.10 lakhs. Since therewas total failure on the part of the learned Judge of the FamilyCourt in appreciating the evidence and material on record theimpugned judgment and order deserves to be set aside by allowingthe Petition of appellant husband argued learned counsel.Learned counsel also placed reliance in Suman Kapur Vs. SudhirKapur1 in support of his submissions. 16None appeared for the respondent wife though served when1AIR 2009 SC 589Rekha Patil 7 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtthe matter was called out. 17We have gone through the evidence and the necessarydocuments forming part of the compilation and the record andproceeding during the course of argument.18The word “cruelty” has not been defined in the Act. Crueltycan be of two kinds one is physical cruelty and the other is mentalor by conduct. Casual and trivial matters arising between thespouses do not amount to cruelty. The principle question whichrequires for consideration in the instant case is as to whether fromthe evidence on record can it be inferred that the respondent wifehas committed an act of cruelty towards the appellant husband andwhether the marriage is required to be dissolved on the aforesaidground.19The appellant husband in support of his case examinedhimself and his father Sudhakar Surendranath Rele. On the otherhand the respondent wife examined herself and her father JairamRekha Patil 8 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtSavleram Mozad.20The appellant husband has filed his affidavit which is at page64 in the compilation. In his affidavit he deposed that on the nextday of the marriage itself the respondent wife informed him andhis parents that her father had forced her into the marriage andhad not allowed her to get married the person she wanted to andshe had no intention to continue with the marriage and that shewould do everything to break up this marriage and she wanted adivorce. He further states that even on their honeymoon she wasabusing him daily and reminding him that her father had forcedher into this marriage. Even after returning back from theirhoneymoon the respondent wife abused him and his parent daily.His parents being senior citizens were subjected to daily abuses onpetty issues and she used to give bad words to them and threatenedto beat them on several occasions. 21His evidence then shows that even the respondent wifeinformed him of having an affair with some other boy who wasRekha Patil 9 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtvery well known to her father but as her father was against the saidrelationship he did not inform the same to him and his parents.Respondent wife’s office timings were from 9 30 a.m. to 6 00 p.m.but she always used to come home only after 9.00 p.m. daily.When confronted the respondent wife would tell that she is doingall this purposely as she was not at all interested in the saidmarriage. Even she told that she would continue to keep sexualrelationship with other men even after her marriage with the soleintention of humiliating and spoiling his and his family’s name inthe society. She would return from the office after 9 00 p.m. andwould tell him how much she had enjoyed having sex with othermen that day and that she would continue to keep sexualrelationship with other men even after her marriage. She also usedto avoid physical relations with him by saying that he is short inheight does not have good physique have no real hair and wears awig. Because of all these harassment his parents shifted to theirnative place at Pune in November 2008. 22It is his further evidence that the respondent wife alwaysused to abuse him and used to call him dirty words like “ gjkeh ”.Rekha Patil 10 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtEven she used to call his father as “FksjMk” and corrupt person andeven attempted to assault him. Ultimately she left the matrimonialhome on 23rd April 2009 along with various gold ornaments andalso gave a writing to that effectThat on the very next day of the marriage the respondent wife informed him and his parents Rekha Patil 11 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtthat her father had forced her into the marriage and she had no intention to continue with the marriage and that she would do everything to break up the marriage as she wanted a divorce ii) That the appellant husband and his parents were always subjected to abuses iii)That she would call him “gjkeh”(knavish) and his father as corrupt and “FksjMk”iv)That she revealed of having an affair with a boy a fact which was known to her father v)That she would continue to keep sexual relations with other men even after her marriage with the sole intention of humiliating him and spoiling him and his family’s name in the society.vi)That after returning home from the office after 9 00 p.m. she would tell appellant husband how much she had enjoyed having sex with other men that day andvii)That she used to avoid to have physical relations and tell him that he is short in height not having good physique and real hair and wears a wig.25It is apposite to note here that all the above instances haveRekha Patil 12 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtbeen simply denied in the fashion of the denial in the form ofwritten statement and has been replicated by respondent wife inher examination in chief. 26All the aforesaid instances are firmly established on record inas much as quite surprisingly these instances are neithercontroverted or assailed nor even remotely touched in the cross examination. Simply the version of appellant husband inconsonance and confluence with pleadings have gone unchallengedin the cross examination without being tested with any sincerityand vigorousity by the respondent wife. 27We also note from the above instances with deep anguish thatrelation between them was not marred by ordinary wear and tearof matrimonial life. Respondent wife’s bursting out at regularintervals as to tying of nuptial knot against her wish having anaffair with other boy and her leading adulterous and a life of sexualdebauchery by all means can be termed as marital misconductconstituting mental cruelty to the husband to say the least. Rekha Patil 13 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odt28From the evidence of appellant husband it is apparent thatrespondent wife after leaving the matrimonial home used to sendhim SMSs in a very filthy language. The typed copy of the list ofSMSs is annexed at Exh. ‘J’ and reads thus:Date Time Message04.06.20093.08Harami nich tu baap honargydV] uhp cki vkgsl rq vkf.k rq>[kkunku 27.06.20094.27Harami tu baap honaroverand over again over a period of time. This perpetual nagging wascertainly and completely intolerable. There appears to be elementof truth when appellant husband deposed that his life becamemiserable because of rude and cruel behaviour of respondent wifeas it constantly endangered of his mental peace because ofinfliction of abusive words upon him. 30The circumstances could not be considered as conducive tocongenial married life. Callous attitude of respondent wife in thisbehalf certainly amounts to cruelty. The incident so noted can notbe by any stretch of imagination be regarded as trivial matters inthe day to day married life and rather were very serious. 31It is then seen from the evidence of appellant husband thatthe respondent wife finally on her own left the matrimonial homealong with her parents and brother on 23 04 2009. She also tookher ornaments along with her as per the list and handed over thehouse keys as she was leaving his house permanently with theintention to never return. She also gave in writing the above notedRekha Patil 15 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtfacts. The said writing is at Exh. ‘C’. 32From a bare reading of Exh. ‘C’ it would appear that therespondent wife on her own volition left the matrimonial house on23 04 2009 along with the ornaments as per the details anddescription given therein. This evidence of appellant husband isalso supported by appellant’s father who also testified before theCourt. Appellant’s father namely Sudhakar Surendranath Rele hasclearly stated in his evidence that when the respondent left thehouse she took all her jewellery. He was very much present andtried to convince her but she did not listen. Even she executed awritingwhen she collected all her ornaments. Thisevidence is nowhere assailed in the cross examination by therespondent wife. 33As against above the respondent wife stated in her evidencethat on 04 04 2009 she demanded gold jewellery from theappellant and his parents as she wanted to attend her cousin’smarriage. However they refused to give her ornaments abusedand threatened her to throw out of their house. With the result toRekha Patil 16 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtsave her life she was compelled to leave the in laws house.34 The evidence of respondent wife is sharply at odds vis a visthe writing at Exh. ‘C’ executed by her. On the contrary Exh. ‘C’shows that she had no complaints about the ornaments. The saidwriting even does not suggest remotely that she was compelled toleave the house after handing over the keys of the house to theappellant. 35 Since this Exh. ‘C’ was shown to the respondent wife in thecross examination it was marked at Exh. 60. It appears from hercross examination that she and her father were forced to put theirrespective signatures on Exh. 60. However she and her fatheradmitted in their respective cross examination that they did not fileany complaint before the police against the appellant husband andhis father about her and her father’s signatures being taken underduress.36In the case of Suman Kapur Vs. Sudhir KapurtheRekha Patil 17 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtwife was a career oriented lady wanting to pursue her professionalcareer to achieve success and thus was found constantly andcontinuously avoiding staying with husband and preventing him tohave matrimonial relations. Further letters written by her showingthat she was keen to live independent life and wanted that husbandshould not bring her marital status preventing her from pursuingher career had lost interest in marriage and did not believe inIndian Culture. She was further found to have called parents ofhusband as “Ghosts” and had gone to extent of making seriousallegations that husband had married to an American woman. Inview of that findings the Hon’ble Apex Court termed conduct ofwife amounts to mental cruelty.37As far as the case in hand is concerned we have not onlyenumerated various instances vis a vis respondent wife but havealso found her conduct and intention quite questionable. 38The respondent wife has also examined her father in supportof her case. Her father Jairam Savleram Mozad states in hisRekha Patil 18 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtexamination in chief that because of the harassment given byhusband and the parent in laws and fearing that somethinguntoward may happen to her life her daughter left hermatrimonial house on 23 04 2009. 39There is no satisfactory corroboration to the version of fatherfrom the mouth of his daughter. Very surprisingly the suggestiongiven to the appellant husband in the cross examination wouldshow that the respondent wife was dragged and driven out of theconjugal home which is out rightly denied by him. The suggestionso given is neither borne out of the pleading nor gets support fromthe testimonies of either respondent wife or from her father.Conflicting stands have been taken by the respondent wife and herfather. 40The evidence of appellant husband then shows that when therespondent wife left the conjugal home she was not pregnant andhad no signs of pregnancy. But she alleged and claimed thepregnancy in her notice dated 10 06 2009 sent by her through herRekha Patil 19 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtlawyer. On the other hand it is the evidence of respondent wifethat due to mental torture and frequent threatenings given by theappellant husband her child was not born and there was amiscarriage. Owing to their strange behaviour she lost her child.This was an irreparable loss to her and therefore according to her the appellant husband should pay her a sum of Rs.10 lakhs towardsthe deterioration of her health. 41We do not find any material on record to substantiate theversion of respondent wife that because of some extraneousreasons like her disturbed mental condition catalysed by thealleged behaviour of husband and parent in laws she sufferedmiscarriage. Surprisingly the learned trial Judge at para 26 of theimpugned judgment observed that the child was aborted. 42There is sea of difference between abortion and amiscarriage. The evidence led by respondent wife is that ofmiscarriage and not abortion. In either case again there is noevidence on record to show that the fact of miscarriage wasRekha Patil 20 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtimmediately informed to appellant husband. If it was abortion asper the observation of the learned trial Judge then certainlyrespondent wife denied the appellant husband the joy of feeling offatherhood and his parents were also deprived of grand parenthoodof a new arrival. It is also not the finding of the learned trialJudge that the pregnancy was either aborted or terminated withthe knowledge or consent of appellant husband. If on the otherhand it was a case of natural abortion or miscarriage then in thateventuality also neither appellant husband was kept in loop leaveapart the absence of material substantiating the claim ofmiscarriage suffered by respondent wife.43One more disturbing aspect emerging from the record is thatrespondent wife was reluctant to stay with appellant husband andsomehow wanted to achieve monetary gain. Her evidence showsthat because of alleged miscarriage her health was deteriorated andtherefore she claimed Rs.10 lakhs from appellant husband. This isquite inconsistent with her own notice dated 16 10 2009addressed to the counsel of appellant husband. In the saidRekha Patil 21 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odtreply notice she categorically stated that she did not want to givedivorce to appellant husband and if appellant husband wanted adivorce from her then he should shell out an amount of Rs.10lakhs towards the compensation for giving consent for decree fordivorce. This questionable conduct of respondent wife wentunnoticed from the sight of learned trial Judge. 44Even otherwise the crucial admission and contradictionappearing in the evidence of respondent wife and her father aspointed out by us herein above were also not taken in properperspective by learned trial Judge. Above all the learned trialJudge also lost sight of the fact that the testimony of appellant husband remained intact in the cross examination. It is a case ofvirtual no cross examination of various instances as deposed to byappellant husband in his substantive evidence. In a sense thelearned trial Judge recorded perverse findings which are notconsistent with the evidence on record. Therefore the findings soarrived at by learned trial Judge is not sustainable. Rekha Patil 22 23 on 07 04 2021 on 14 04 18 FCA 106 2012.odt45Considering the evidence on record in our view theappellant husband has successfully made out a case for getting adecree for divorce on the ground of cruelty. 46In view of above we pass the following order:ORDER Family Court Appeal No. 1012 stands allowed.i) The impugned judgment and decree dated 2nd April 2012passed by the learned Judge of the Family Court is quashed and set aside.ii)Petition No. A 210 stands decreed with costs.iii) Marriage between appellant husband and respondent wife solemnized on 10th July 2008 stands dissolved by a decree of divorce under Section 27(1)(d) of the Special Marriage Act 1954.iv)Decree be drawn accordingly. (V. G. BISHT J.)( R. D. DHANUKA J.)Rekha Patil 23 23 

Summary: The principal question which requires consideration is whether from the evidence on record, can it be inferred that the spouse has committed an act of cruelty and whether the marriage is required to be dissolved on the aforesaid ground. This remarkable judgment was passed by the Bombay High Court in the matter of SUNESH SUDHAKAR RELEV SEEMA SUNESH RELE [FAMILY COURT APPEAL NO. 106 OF 2012] by Honourable Justice R. D. Dhanuka and Justice V. G. Bisht. The husband has filed this Family Court Appeal against the Judgment and Order passed by the Family Court whereby a Petition seeking divorce on the ground of cruelty under Section 27(d) of the Special Marriage Act, 1954 had been dismissed. After marriage, the wife informed him that she did not marry willingly instead was forced by her father and that she now wants to divorce. Later the wife started cruel and rude behaviour with the husband and his parents and abuse the elderly parents for petty issues and threaten to beat them on several occasions. The husband continued to tolerate this behavior but after two months of marriage, she left the matrimonial home only to return after ten days with an intention of divorce and refused any physical relations and ridiculed his physical appearance. Later, she took all her ornaments and left and even sent a legal notice and claimed pregnancy even though she was not pregnant and had no signs of any pregnancy when she left the matrimonial home. Thus, he instituted a Petition for divorce on the ground of cruelty, the wife denied these allegations and instead contended that they were demanding dowry and after it was not paid, they are trying to sully her character and also alleged that due to harassment and mental torture by the appellant she suffered a miscarriage. After recording the evidence, the learned Judge came to the conclusion that the appellant has failed to prove that the wife treated him with cruelty and accordingly dismissed the Petition of divorce. Later in front of the HC, it was claimed that the wife demanded a sum of Rs.10 lakhs for giving divorce, and since the court failed to appreciate the evidence the judgment should be set aside, The HC observed that “Instances firmly established on record were neither controverted nor assailed nor even remotely touched in the cross-examination. Simply, the version of husband in consonance and confluence with pleadings have gone unchallenged in the cross-examination without being tested with any sincerity and vigorously by the wife.” The Court also stated that “Relation between them was not marred by ordinary wear and tear of matrimonial life. Wife’s bursting out at regular intervals as to tying of nuptial knot against her wish, having an affair with other boy and her leading adulterous and a life of sexual debauchery, by all means, can be termed as marital misconduct constituting mental cruelty to the husband, to say the least.” The Court acknowledged that “perpetual nagging was certainly and completely intolerable” and lead to a situation wherein the husband’s life became miserable because of rude and cruel behavior of the wife as it endangered his mental peace because of infliction of abusive words. The Bench stated that “The circumstances could not be considered as conducive to congenial married life. The callous attitude of respondent-wife on this behalf certainly amounts to cruelty. The incident so noted cannot be by any stretch of imagination be regarded as trivial matters in the day-to-day married life and rather were very serious.” The Court in regards to abortion and miscarriage stated that the finding of the trial Judge was that the pregnancy was either aborted or terminated with the knowledge or consent of the husband but the husband was not informed about the pregnancy let alone the vent of miscarriage or abortion. The Court regarded that the Trial Judge failed to appreciate the intact testimony of the husband and stated that, “It is a case of virtual no cross-examination of various instances as deposed to by appellant-husband in his substantive evidence. In a sense, the learned trial Judge recorded perverse findings which are not consistent with the evidence on record. Therefore, the findings so arrived at by learned trial Judge is not sustainable.”