True test of nature of a person is during adversity, Bombay HC bares allegations commonly levelled by woman seeking Divorce

True test of nature of a person is during adversity, Bombay HC bares allegations commonly levelled by woman seeking Divorce 

Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE

FAMILY COURT APPEAL NO. 28  OF  2013

Rupali Ravindra Jadhav )

@ Rupali Ravindra Jadhav )

residing at E/7, Micheal Sadan,  )

Laxmi Udyog Nagar, )

Kanjur Marg (West), Mumbai – 400 078. ) ... Appellant

Vs.

Mr. Sachin M. Sawant )

G/7, Sai Ganesh Apartment, )

B Wing, Sai Baba Nagar, )

Bhyander (East), Dist.  Thane ) ... Respondent

Mr. Mukesh J. Pabari, Advocate for the Appellant.

Mr. Sachin M. Sawant, Respondent in person present. 

CORAM: 

SMT. V. K. TAHILRAMANI  &  V. L. ACHLIYA, JJ.

DATED: 12th December, 2013.

ORAL JUDGMENT :­ (Per Smt. V. K. Tahilramani, J.)

Heard the learned Advocate for the appellant and the respondent who is present in person.

2. The appellant­ Rupali  was married to the respondent­ Sachin on 10th May,  2007. It is admitted fact that thereafter the respondent was admitted in the hospital as he was suffering from cancer. On 8th August, 2008, the appellant had left the matrimonial house and did not return back.  Thereafter, she filed Petition No. A­1335 of 2010 before the Family Court, Mumbai at Bandra for dissolution of marriage on the ground of  cruelty. The Petition came to be dismissed by Judgment and Order dated 9th October,2012. Hence the appellant approached this Court.  

3. It is admitted fact that the marriage of the appellant ­Rupali and the   respondent­ Sachin   took     place   on 10th  May, 2007. Both   the appellant and the respondent were related to each other   prior to the marriage. They fell in love and there was courtship period of 5 years. Thereafter,   they got  married on 10th May, 2007.    From 8th   August, 2008,   the parties were separated. No  issue  is born out  of   the  said wedlock. 

4. The appellant sought for dissolution of marriage on the following grounds :­

(a) That  the   husband   and   his family members were using abusive words on regular basis. 

(b) That the husband and his family members used to torture petitioner mentally and physically.

(c) That the husband treated the petitioner like a slave.

(d) That the husband  and  his  parents  did  not  allow  the appellant to meet and talk to her relatives and neighbour.

(e) That  the  husband  was  insisting  to  bring money from petitioner's father.

(f) That the   husband   forcefully mortgaged the petitioner's  Stridhan.

(g) That the husband was having habit of excessive drinking.

(h) That the husband had T.B. and Venereal disease.

5. The   respondent   filed   written   statement   and   denied   all   the contentions raised by the appellant. To prove her claim, the appellant examined herself as PW1 and her sister Prachi as PW2. On the otherhand, the respondent­Sachin has examined himself as DW1. There is no other evidence on record.  In her examination­in­chief, the appellant reiterated the contentions of the Petition.  

6. The first grievance of the appellant is that the respondent and his family  members  were   using   abusive words   on   regular   basis. This according to her caused mental torture.  It is pertinent to note that she has not  given any details  about   the date,   time and place when  the respondent and his family members used abusive words to abuse her. She has not stated who abused her and the words used to abuse her. The further claim of the appellant is that she was physically assaulted for illegal  demands.   Again, she has not given any details about the date, time and place when she was physically assaulted and role played either by the respondent or any of his family members and the injury sustained by her due to such assault.   According to the appellant the respondent and his parents threatened to throw acid and kerosene on her.  Though the appellant has made allegations against the parents of the   respondent,   it   is   pertinent   to   note   that   her sister   Prachi   has  specifically   stated   that   she   knew  the   nature   of   the   parents   of   the respondent and that they are good by nature.  In view of the categorical  admission made by Prachi, the sister of the appellant, the averment of the   appellant   that   the   respondent   and   his   parents   abused   her   or assaulted her or threatened her does not appear to be true.  

7. The appellant has stated that the Respondent and his parents treated her like a slave.  During the day the appellant was working so was the Respondent, hence, there is no question of the appellant being treated as a slave during this time.  Before the appellant left for office and after   she came back  from office  the parents of   the Respondent would be at home and as they were good by nature, they would not treat her like a slave nor allow their son to do so.  Thus this contention  of the appellant does not appear probable.  

8. The next grievance of the appellant is that she was not allowed to meet  her  parents,   family members and neighbours and she was not even allowed to make phone­calls to them.   As far as these contentions are concerned, it is admitted that the appellant was working since prior to the marriage and she continued to work after the marriage.   In such case, when she used to go to work everyday, it was very much possible for her to make calls to her parents and other persons as well as to meet them  on   the  way   to   and   fro from work. It   is   also   seen   that   the respondent was working, therefore, during whole day he was busy at his work place and in natural course, there would be no occasion for him to put alleged restriction on the appellant.  As stated earlier, Prachi­ sister of the appellant has admitted that the parents of the respondent were good by nature.  Therefore, stand taken by the appellant that the respondent   and his   family members did not  allow her   to meet  her parents, family members  and neighbours  appears   to be  improbable. 

The appellant has admitted that she was working and getting salary. This shows that she was educated and having financial independence to some extent.  If she was working then she was free to call her parents, family members and neighbours and to visit them.   As stated earlier respondent was also working, in such circumstances, the averment that she was  not  allowed  to meet  her  parents  and  family members  and neighbours appears to be improbable.

9. The next grievance raised by the appellant is that the respondent was in habit of excessive drinking.   Mere drinking is not sufficient to constitute matrimonial offence unless it is coupled with overtact, which is sufficient   to   make   it   difficult   for   the   either   party   to   perform matrimonial   obligations. At   this stage, it  may   be   stated   that   the respondent  was suffering from cancer.    Soon after  the marriage, the cancer was detected.   In such case, it is not expected that when the respondent   was   undergoing   treatment   for   cancer   and   was   even admitted in ICU, he would be taking excessive drinks. A person who was  undergoing   treatment   for   cancer   can   hardly   continue   drinking habit.

10. The further case of the appellant is that when the respondent was admitted in the hospital in ICU due to his cancer ailment, money was demanded from her father to pay for the treatment and she  was made to mortgage her Stridhan.   It is most unfortunate fact that within two  months  of   the marriage, respondent was diagnosed  to be  suffering from cancer and he was admitted in ICU.  The case of the respondent is that when he was in ICU, the appellant left him.  He has further stated that appellant had not bothered to take care of him during such crucial period.  It is pertinent to note that Prachi, the sister of the appellant admitted in cross­examination that it is true that her sister i.e. appellant never went to see respondent­Sachin, when he was admitted in ICU and after his discharge.   Obviously, when the appellant did not even go to see the Respondent in hospital, there was no question of demanding any money from her.  As it is an admitted fact that the appellant never went   to   see   the  Respondent  when   he  was   in   hospital   or   after   his discharge the case that she was made to mortgage her Stridhan does not appear to be probable.  

11. It is to be noted that the respondent in his evidence has stated that to buy another house,  he had given money to his father­in­law. This averment has remained unshaken in the cross­examination. This shows  that  in fact the respondent had given money to father of the  appellant   to purchase a house.  In such circumstances, it  cannot  be believed that the family members of respondent would demand money for treatment or otherwise from the parents of the appellant.  Moreover, the appellant has admitted that in the marriage she was given a big Mangalsutra and bangles by the respondent.  Looking at these facts, it appears to be improbable that when the respondent was in ICU, money was demanded from her parents to pay for his treatment. 

12. According  to  the appellant   the  respondent  had T.B.  This can hardly be a ground to seek divorce. T.B. is not a permanent disease and it is very much curable.  Thereafter, the case of the appellant is that the respondent had venereal disease.  In relation to this contention it is to be noted that no such averment is made  in the petition for divorce. Moreover the petition for divorce is only under section 13(i)(ia) of the Hindu Marriage Act, 1955 that is cruelty and not under section 13(v) of the Hindu Marriage Act, 1955, which cites venereal disease as a ground  for divorce. Thus this averment in her evidence before the Court will not help her. 

13. It is stated that true test of nature of a person is during adversity. The evidence of the appellant in relation to cruelty is found very vague. Looking at the material aspects of the case, the same is not corroborated by independent and reliable witness. On the contrary, the  actual  period of cohabitation between the parties was very small i.e. merely two months. When the respondent was suffering from cancer, the appellant left  him. This in fact, reveals the true nature of the appellant.   

14. The  term  'cruelty'   is  not  defined,   therefore,   there cannot  be a straight jacket formula for determining whether there  is cruelty or not. Each case depends upon its own facts and circumstances.  The conduct complained of should  be grave and weighty.  It should touch a pitch of severity to satisfy the  conscience   of   Court   that   parties   cannot   live together with each other any more without mental agony, distress and torture. Keeping in mind the above settled legal principles and after scrutinizing the entire evidence on record.  We find that there was not a single   incident  which  can be   called as   intolerable  and was  of   such nature   that   it  was  making   it  difficult   for   appellant   to   continue   the matrimonial relations.

15. In matrimonial disputes, first the allegations have to be proved, thereafter   question   arises   whether  proved   facts   are   sufficient   to constitute   cruelty   or   not. The   appellant   has   failed   to   prove   the allegations itself, therefore, there was no question of cruelty.

16. In the present case, it appears that as soon as appellant came to  know that   the   respondent was suffering   from  cancer   and   he   was admitted in ICU, appellant left him which is clear from the evidence of her sister Prachi.   It appears that the appellant is taking advantage of her own wrong while claiming relief. She has left the company of respondent when he was suffering from cancer.  There is nothing in her evidence to show that inspite of all odds, she was ready to continue the relations, however, the conduct of respondent was making it difficult to discharge the matrimonial obligations.    

17. On going through the entire evidence on record, in our opinion the appellant has totally failed to prove her case.   We find no merit in the Appeal.  Appeal is dismissed.

(V.L.ACHLIYA, J.)           (SMT V.K.TAHILRAMANI, J.)

SOURCE-http://bombayhighcourt.nic.in/generatenewauth.php?auth=cGF0aD0uL2RhdGEvanVkZ2VtZW50cy8yMDEzLyZmbmFtZT1DRkNBMzg5OTEzLnBkZiZzbWZsYWc9Tg==