Not fulfilling demand of separate home is NOT cruelty. Minor disputes, difference of opinion which are to be adjusted and tolerated, cannot be treated as cruelty. -wife cannot be allowed to advantage of her own wrong-desertion cruelty not proved-Bom HC

Not fulfilling demand of separate home is NOT cruelty. Minor disputes, difference of opinion which are to be adjusted and tolerated, cannot be treated as cruelty | wife cannot be allowed to advantage of her own wrong desertion cruelty not proved - Bombay HC

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO.77/2003

Mrs.Surbinder Kaur Sandeep Sood,
Age about 36 yrs.Occ.Nil
R/o C/O Shri.Sardulsingh
Re.E.G.55/4,Bhaira Nagar,
Dhanori Road,
Vishrantwadi,
Pune-422 015 Appellant/Ori.Petitioner

Vs.
Sandeep Rajkumar Sood,
Age about 40 yrs.Occ.Business,
Residing at 529/E,Kadamwadi,
Kolhapur 415 003       Respondent/Ori.Respondent
Ms.Ashwini Takalkar i/b Mr.Nitin Deshpande for Appellant
Mr.P.R.Arjunwadkar,for Respondent

Coram- A.M.Khanwilkar and    Mrs.Mridula Bhatkar,JJ

Reserved On-2nd  May,2011.

Pronounced On- 8th  December, 2011.

J U D G M E N T (Per Mrs.Mridula Bhatkar,J.):

1 The judgment and order dated 23/6/2003 passed by the Judge of Family Court, Pune is challenged in this appeal. The appellant/original petitioner had filed petition for divorce on the ground of cruelty and desertion under section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955.

2 The appellant and the respondent got married on 12/5/1993 and stayed together for a period of three years at Kolhapur, in the joint family of respondent consisting of parents and three sisters. It is the case of the appellant that she was not given freedom in the house and  was harassed in  number of ways by the mother and sisters of the respondent. She was not allowed to speak to the respondent and was  asked to do domestic work from morning to night. Many restrictions were imposed on her routine and she hardly could step out of the house. She was deprived of company of the respondent and had to obey the instructions/orders of her mother in law and sisters in law. For want of proper care and rest she had miscarriage. So her parents came to Kolhapur and gave her Rs.5,000/-for her own expenses. However, she was not allowed to spend that money for herself. Subsequently she again conceived and gave birth to male twins on 24/4/1996. She was not allowed to take proper rest and sisters of the respondent used to quarrel with her so the children were neglected. It is contended that in July, 1996 she was not allowed to go to the temple of goddess at Kolhapur. On that issue there was a big quarrel in the house. The respondent slapped the appellant, thereafter her sister in law Anju lodged false complaint with the police  that the appellant tried to commit suicide. On enquiry police called her father and she was sent to Pune alongwith her father.  She resided with her parents for 2-3 months. The respondent was supposed to come to her father’s house to take her back. However, he did not come. Therefore, in the month of January,1997 the appellant alongwith her father went to Kolhapur  to reside with the respondent. However, the respondent and his family members quarreled with the appellant and she alongwith her family members was driven out of the house  at odd hours of night. Since then she has been residing with her parents at Pune.It is contended that the respondent did not pay any maintenance to her and her children and did not bother to call her back. She, therefore, on the ground of cruelty and desertion filed petition for divorce in the Family Court at Pune, but it  was dismissed. Hence this appeal.

3 The respondent has denied all the contentions raised and allegations made in the petition and in the appeal.  He filed written statement and contested the petition that the grounds of cruelty and desertion are false and it is a cooked up story.   The petition was based on false averments and petitioner had withdrawn herself from the company of the respondent without any good cause. She has taken away two children and was not interested from the beginning to live with the respondent alongwith his family members. It is contended by the respondent that the petitioner wanted to reside separately only with the respondent and was interested to enjoy the life without taking any responsibility. She is pampered child of her parents. Despite such behaviour of the appellant, the respondent being a responsible and loving husband filed petition for conjugal rights bearing no.95/97 and it was decided in his favour. The petitioner did not come to stay with him. He filed execution proceedings, however, the petitioner did not show any interest and did not come to Kolhapur to live with him. It is contended that the petition was rightly dismissed as the petitioner could not prove her case of either cruelty or desertion.

4 The petitioner examined herself and also three witnesses viz. Nandlal Amarchand Shrishrimal, Sharadsingh Banga, and Captain Deepchandra. The respondent  husband offered himself as a witness and examined Shivaji Sankpal, Vijaya Toraskar and his sister Anju Rajkumar Sood.

5 Learned counsel for the appellant argued that cruelty is an aggravated form of harassment and it can be either expressly  proved or it can be inferred. She submitted that the appellant in her examination in chief has stated that the respondent husband had slapped her and the family members, especially the sisters of the respondent used to torture her by not giving food and not allowing her to go out of the house. Learned counsel pointed out that the application for the Restitution of Conjugal Rights though was decreed in favour of the respondent, the appellant never stayed with the respondent, therefore,  if the decree is not implemented till today then itself forms a ground for divorce.  She submitted that the maintenance ordered by the Court to her was  not paid by the respondent.  These aspects ought to have been considered by the Family Court. In support of her submissions she relied upon (Sanghmitra Ghosh Vs.Kalalkumar Ghosh) reported in 2007(2) SCC,220. She submitted that this being a irretrievable breakdown of the marriage the prayer of divorce be granted and the appeal deserves to be allowed.

6 Learned counsel for the respondent submitted that the appellant at the time of evidence could not narrate specific instances of cruelty and failed to bring any evidence to that effect. He pointed out that in her cross examination the petitioner has admitted that she has no grievance against the respondent but she was on inimical  terms and holding grudge against the mother and sisters of the respondent and this cannot be a ground for divorce. Hence the petition is rightly dismissed. 

7 The points framed by the Family Court and findings given are as follows.

POINTS       FINDINGS
1. Whether the petitioner proves thatthe respondent treated her with cruelty after solemnization of marriage ? No
2. Whether the petitioner proves that the respondent deserted her withoutjust and sufficient reason for a period of 2 years preceding the date of petition ?No
3. Is there any legal bar u/s 23 of  H.M.Act ?Not survive
4. Is petitioner entitled to decree of divorce? No
5. What about permanent alimony of petitioner and maintenance of children ?Not survive
6.   Is petitioner entitled to continue the permanent custody of children with her ?Yes,presently.

7. What order ?      As per final order

8 Issue nos.1 and 2 are  the ground for divorce i.e. cruelty and desertion. We have carefully gone through the evidence and judgment of the Trial Court. On the point of mental and physical cruelty, following incidents are stated by the appellant. 

Physical Cruelty-
1. Slapping the petitioner in the month of July,1996  when the appellant expressed her desire to
go to the temple.
2. She was driven out of the house at night in July,1997 alongwith her father.
3. Not giving food
4. Asking her to do the domestic work
 
Mental Cruelty-
1. Not allowing to talk to her husband.
2. Not allowing to go out3. Husband was not accepting her wish of separate residence and not to stay with sisters.
4. Not to give her Rs.5,000/- to spend.

9 The petitioner in her evidence, except giving slap and not giving food did not narrate any specific incident of physical cruelty against the respondent. It is oral uncorroborated evidence.  In fact she gave admission and showed readiness to stay  with the respondent and his mother. She did not like the company  of his sisters. House of the respondent is of 12 rooms. Thus, separate residence for the appellant and respondent could be possible,  if the respondent had accepted the offer. At any rate, as the  demand of separate residence cannot be considered as cause of cruelty,  for the same reason, non-acceptance of such demand by the husband also cannot be a cruelty. These are choices given by the spouses to each other and expression of choice and refusal of the choice itself is not a cruelty.   In the evidence of Anju, sister of the respondent, she has stated that she leaves home at 9 a.m. and returns at 6 p.m. Further, the appellant gave admission in her evidence that the mother of the respondent has taken her care during pregnancy. This shows that the appellant did not have any complaint against the mother of the respondent. It appears that the root cause of the dispute was due to stay of the sisters in the house,  an ego problem.

10 On the point of cruelty one Captain Deepchandra was examined by the appellant. He is maternal uncle of the respondent. He has produced one letter, Exh.25, written by the father of the respondent to him. He deposed that in that letter father of the respondent has written that , “ Surbinder was kicked out to Pune”. On reading the said letter the words “kicked out” appear to be added subsequently. However, further it is mentioned in the letter that the family was spending Rs.30,000/- per year on the appellant. Thus, her evidence that she was not given food, cannot be believed on the basis of the letter which is proved and relied by the appellant herself.

11   On 25/7/1996 a police complaint  was lodged by the sister of the respondent alleging that the appellant was trying to commit suicide by pouring kerosene on her body. This shows that the sister had diligently  reported the police station so that the police would take preventive measures and no untoward incident should happen. However, the attempt of the appellant to commit suicide when she was mother of 2-3 months old infants cannot be justified.  The evidence of police officer is on record which supports this and that cannot be doubted.  After going through this evidence we are of the opinion that the Judge of the  Family Court has properly appreciated the evidence of the witnesses of both the sides and has correctly arrived at the conclusion. It is settled position of law that a routine bickerrings  or petty quarrels cannot be labelled as cruelty under the Hindu Marriage Act.

12 The respondent though denied that amount of Rs.5000/- was received from the father of the appellant, he admitted that he  kept that amount in the Fix Deposit in the name of the appellant and he did not spend that money for himself. Further, the record shows that he had filed application for Restitution of Conjugal Rights which was decreed as the appellant failed to prove that she had withdrawn from the society of the husband with good and satisfactory cause.  Even in those proceedings the appellant had asserted cruelly caused by the respondent and his family members. However, that plea was negatived.  The said decree was not challenged by the appellant in appeal. Though the execution was taken out, she did not respond and the decree could not be executed.

13 It is admitted that on that day i.e. 25/7/1996 father of the appellant was called by the police. With a view to get the things settled she was sent to Pune at her father’s residence for 2-3 months. After two months the respondent did not bring back the appellant, so her father came to Kolhapur. The respondent told him to bring back the appellant to Kolhapur. On 25/1/1997 she came alongwith her father and some family members, out of which one is examined as a witness. There are two versions of the parties before the Family Court  that she was driven out of the house and secondly the father and other member who had gone there,  fought and put stringent condition which were not acceptable to the respondent, therefore, they took their daughter back to Pune. Be that as it may, the fact remains that  the appellant did not go back and continued to stay away from the respondent from July,1996. Any version of either of the parties if accepted, it is not a good ground to stay away from each other and to untie a nuptial knot.

14 Considering the nature of the dispute and the reasons given by the appellant, the separation cannot be justified.  It cannot be held that the respondent has deserted the appellant without any good cause. It appears that the appellant herself opted to stay with her parents at Pune and not to cohabit with the respondent. She did not respond to the decree of Restitution of Conjugal Rights and therefore, the findings given by the Family Court that animus deserendi was absent and so the divorce cannot be granted under the ground of desertion is correct. Minor disputes, difference of opinion which are to be adjusted and tolerated, cannot be treated as cruelty.

15 The respondent had filed petition for custody of children. However, it was rejected. He could not succeed in the appeal. The twins were born  in 1996 and now they are around 15 years old. Since childhood they are staying with mother and taking education. So the issue of permanent custody was rightly held in favour of the appellant. Indeed, after attaining majority, it would be open to the children to stay with parent of their choice i.e., continue to stay with the mother or reside with the father (respondent)

16 A demand of permanent alimony was made by the appellant. Our attention was drawn to the orders passed by the Trial Court and this Court in the maintenance petition filed by the appellant. The appellant had filed a petition for maintenance bearing number 218/97 and maintenance of Rs.400/- p.m. to the appellant and Rs.300/- p.m. to each child was granted. It was enhanced to Rs.800/- p.m. for the appellant and Rs.500/- p.m. to each child. The respondent filed an application for cancellation of maintenance, however, it was dismissed. Again the maintenance amount was enhanced by the Family Court to Rs.1,200/-p.m. to the appellant and Rs.1,000/-p.m. to each child. The respondent preferred Revision Applications before this Court bearing nos.654/2007 and 512/2008. The Revision Applications were dismissed by this Court on 18/7/2009. The respondent preferred Special Leave to Appeal (Criminal) 7870-7871/2009 and the same was dismissed by the Supreme Court. We do not wish to interfere with finding recorded by the Family Court on issue No.5. We also agree with the Family Court that the appellant is free to resort to other legal
remedies. 

17 It is necessary to note that when the appeal was taken up for hearing, we, in the first place, tried to persuade the parties to arrive at some amicable settlement.  However, we found that the parties were still holding grudge against each other and were not in a mood to adjust. Instead, the learned counsel for the appellant has advanced her submission that such a long separation amounts to irretrievable break down of the marriage and so the decree of divorce be granted. In the case of  Sanghmitra Ghosh (supra) the parties were residing separately since January, 2001. In a transfer petition before the Supreme Court to transfer the pending matrimonial petition to some other State;  they filed joint petition for a decree of divorce praying that the Court may grant decree of divorce by mutual consent. The Supreme Court accepted the plea of irretrievable break down of marriage and exercised its extraordinary jurisdiction under Article 142 of the Constitution and granted decree of divorce. In the present matter, having recorded finding on merits on the relevant points/issues raised by the rival side and thus upheld the decree passed by the Family Court which is impugned in this Appeal, we would follow the dictum of our High Court in the case of Ravindra M.Shelar v. Kalpana R.Shelar reported in 2002 (3) MLJ 746.(http://www.indiankanoon.org/doc/1343342/) The same applies on all fours to the facts of the present case. Inasmuch as, even in this case we have found that the appellant was responsible for non-compliance of decree of restitution of conjugal rights and had committed positive wrong. She cannot be allowed to take advantage of her own wrong as the legal bar in granting the decree of divorce was not lifted. 

18 We, therefore, do not wish to interfere with the judgment and order passed by the Family Court.

19. Hence the Appeal is dismissed with no order as to costs

.
(Mrs.Mridula Bhatkar,J.) (A.M.Khanwilkar,J.)

http://bombayhighcourt.nic.in/data/judgements/2011/CFCA3090503.pdf