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==

Woman says did not know husband's religion, seeks to nullify marriage, Bombay HC dismisses claim

Bombay High Court

1

FCA124.13

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE

FAMILY COURT APPEAL NO. 124 OF 2013

NIRANJANI ROSHAN RAO )

residing at 303 A, Vashishtha Building )

Saptarshi Park, Opp. Vasant Garden )

Swapna Nagari, Mulund West, )

MUMBAI 400 080 ).. APPELLANT 

(Orig.Petitioner )

VERSUS

ROSHAN MARK PINTO )

residing at H-No. 5-112, Snehalaya,  )

Chandanagar Post, Ranga Reddy Dist., )

HYDERABAD 500050 ).. RESPONDENT

Mr. Rahul Nerlekar, Advocate for the appellant 

Mr. Ananth Iyengar, Advocate for the respondent

CORAM:-SMT. V.K. TAHILRAMANI &

V. L. ACHLIYA, JJ.

DATE ON WHICH JUDGMENT 

IS RESERVED: 27th November, 2013 

DATE ON WHICH JUDGMENT 

IS PRONOUNCED: 24

th

December, 2013.

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

The appellant/original petitioner-wife has preferred

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this appeal against the order dated 18/4/2013 passed in Family Court

Petition No. 2877 of 2011. 

2 In brief the facts leading to filing of the appeal are

summarized as under:

(i) The appellant/original petitioner-wife had filed the

petition seeking decree of nullity of marriage and alternatively

claimed the decree of divorce. In nutshell, the appellant had

approached with the case that on 13/1/1999, she was married to

respondent as per Hindu rites and rituals. At the time of marriage

the appellant was Hindu and respondent was Christian. After the

marriage they continued to profess their respective religion. At the

time of filing of the petition also they continue to practice and

follow their respective religion. 

(ii) The appellant had filed petition u/s 11 of Hindu

Marriage Act 1955, seeking decree of nullity on the ground that

their marriage was null and void as same being in contravention of

essential condition of valid marriage provided u/s 5 of Hindu

Marriage Act. By way of alternate relief, the appellant had claimed

decree of divorce u/s 13(1)(i-a) of Hindu Marriage Act, on the

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FCA124.13

ground of cruelty. Since the learned Judge of Family Court has

rejected the petition of the appellant in exercise of powers under

Order VII Rule 11 of Civil Procedure Code, it is not necessary for us

to state in detail the facts pleaded in the petition as well as the case

of the respondent.

(iii) In view of the fact that respondent i.e. the husband has

admitted the fact that at the time of the marriage and since thereafter

he continued to be Christian though their marriage was performed as

per Hindu rights and rituals the appellant had taken out the

application under Order XII Rule 6 of CPC seeking decree of

nullity of marriage on the ground of admission given by the

respondent. The learned Judge of the Family Court on consideration

of the application taken out by the petitioner-appellant and the

pleadings on record, reached to prima facie conclusion that the

petition discloses no cause of action which needs to be adjudicated

by the court and issued notice to appellant to show cause as to why

the petition shall not be rejected under Order 7 Rule 11(a) & (d) of

CPC. 

(iv) Although the petitioner-appellant has not filed say to

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the notice issued by the learned Judge of the Family Court, but filed

written arguments. The learned Judge of the Family Court, after

hearing the parties and considering the facts pleaded in the petition

that at the time of marriage the petitioner-wife was Hindu by

religion and respondent-husband was Christian and continued to

practice and profess their respective religion, rejected the petition in

exercise of powers under Order 7 Rule 11 of C.P.C, as the petition

discloses no triable cause of action. Being aggrieved by the order

of rejection of petition, the appellant has preferred this appeal.

3 We have heard the learned advocates appearing for the

appellant as well as the respondent. After carefully scrutinizing the

impugned order in the light of the pleadings of the parties and the

relevant provisions of the Hindu Marriage Act, 1955, for the reasons

mentioned herein above, we are of the view that the order impugned

by way of this appeal is perfectly legal and calls for no interference

in exercise of appellate jurisdiction, by this court.

4 The appellant is seeking decree of nullity of marriage

under Section 11 of the Hindu Marriage Act. Section 11 of the

Hindu Marriage Act reads thus:-4/16

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11. Void marriages:- Any marriage solemnized

after the commencement of this Act shall be null

and void and may, on a petition presented by either

party thereto [against the other party], be so

declared by a decree of nullity if it contravenes any

one of the conditions specified in clauses (i), (iv)

and (v) of Section 5.

Section 2 of the Hindu Marriage Act clearly states that the

petition can be filed by the parties who are both Hindus. Section 5

of the Hindu Marriage Act provides the conditions for a Hindu

marriage. In the beginning itself, it is provided that the marriage

must be solemnized between any two Hindus. As mentioned above,

the appellant herself has stated that the respondent was not a Hindu

at the time of marriage or even thereafter. If this condition is not

fulfilled and there was no contravention of provisions laid down

under Section 5 of the Hindu Marriage Act, the Family Court was

right in observing that the appellant has no right to file such a

petition. 

5 In the present case, there is no contravention of the

clauses (i), (iv) and (v) of Section 5. Clauses (i), (iv) and (v) of

Section 5 reads thus:-5/16

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5. Conditions for a Hindu Marriage- A marriage

may be solemnized between any two Hindus, if the

following conditions are fulfilled, namely :-i. neither party has a spouse living at the time of

the marriage;

ii. ........................

iii. .......................

iv. the parties are not within the degrees of

prohibited relationship, unless the custom or usage

governing each of them permits of a marriage

between the two;

v. the parties are not sapindas of each other,

unless the custom or usage governing each of them

permits of a marriage between the two.

It is not the case of the appellant that she or the

respondent were earlier married and hence, had a spouse living

at the time of the marriage. It is not even her case that they

were within the degrees of prohibited relationship or were

sapindas of each other. In such case, the marriage cannot be

held to be null and void under Section 11 of the Hindu

Marriage Act.

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6 If, we consider the undisputed facts then fact is not in

dispute that at the time of marriage the appellant was Hindu by

religion and respondent was Christian. They performed marriage as

per Hindu rites and rituals. It is also not in dispute that after their

marriage, they continue to practice and profess their respective

religion. Therefore, the first and foremost question falls for our

consideration is whether at all the provisions of Hindu Marriage Act

1955 can be invoked by petitioner to claim any relief. In this

context it is useful to refer the provision of Section 2 of Hindu

Marriage Act 1955, which provides for applicability of the

provisions of the said Act. Section 2 of the Hindu Marriage Act,

reads as follows:

“2. Application of Act (1) This Act applies-(a) to any person who is a Hindu by religion in any

of its forms or developments, including a Virashaiva, a

Lingayat or a follower of the Brahmo, Prarthana or Arya

Samaj;

(b) to any person who is a Buddhist, Jaina or Sikh by

religion and 

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© to any other person domiciled in the territories to

which this Act extends who is not a Muslim, Christian,

Parsi or Jew by religion, unless it is proved that any such

personwould not have been governed by the Hindu Law

or by any custom or usage as part of that law in respect

of any of the matters dealt with herein if this Act had not

been passed. (emphasis supplied).

Explanation.-The following persons are Hindus,

Buddhists, Jainas or Sikhs by religion, as the case may

be:-(a) ….............;

(b) …..............; and 

© …...............

(2) …...............

(3) The expression “Hindu” in any portion of this Act

shall be construed as if it included a person who, though

not a Hindu by religion, is, nevertheless, a person to

whom this Act applies by virtue of the provisions

contained in this  section.

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Thus the plain reading of Section 2 explicitly provides

that the provisions of Hindu Marriage Act, 1955 can be availed and

applicable when both the spouses are Hindus and their marriage is

performed as per Hindu rites and rituals and the marriage is a valid

marriage within the meaning of Section 5 of Hindu Marriage Act. It

is also necessary that at the time of filing petition, both the spouses

are Hindus by religion except for seeking remedy of divorce u/s

13(1)(c) of the Hindu Marriage Act i.e. on the ground of person

ceases to be Hindu due to conversion to another religion. 

7 In the present case, according to the appellant, at the

time of performing the marriage with the respondent, the appellant

was Hindu by religion and the respondent was Christian. They

performed the marriage as per the Hindu rites and rituals. After

their marriage in the year 1999, they continued to profess their

respective religion till filing of this petition. The petitioner is

professing Hindu religion whereas the respondent continued to

practice and profess Christian religion. Thus at the time of their

marriage as well as at the time of filing of petition, both petitioner

and respondent were not Hindus by religion and same position is

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continued till filing of petition. In view of this admitted position,

the learned Judge of the Family Court has held that petition

discloses no cause of action and so also the jurisdiction of the court

is barred under law to entertain and prosecute such petition under

the provisions of Hindu Marriage Act. On reaching to such

conclusion, the learned Judge has invoked powers under Order VII

Rule 11 of CPC and rejected the petition. Therefore, in our view the

reasons recorded by the learned Judge in rejecting the petition is

legal and calls for no interference in exercise of appellate

jurisdiction.

8 The issue raised in this petition remains no more res

integra as the Division Bench of this court in the case of  Smt. Neeta

Kirti Desai vs. Bino Samuel George, 1998 (1) Bom. C.R. 263, has

laid down that when both the spouses are Hindus, they are regulated

under the Hindu Marriage Act. If one of the party to such marriage

is not Hindu the provisions of Hindu Marriage Act, 1955 cannot be

invoked to seek the remedy under the said Act. The court has held

as under: 

“The Family Court Act creates a forum. The Family

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Court Act has not settled the rights and obligations

between the parties viz. restitution of conjugal rights,

judicial separation, nullity of marriage and divorce.

When both the spouses are Hindus, they are regulated

under the Hindu Marriage Act, 1955. Undisputedly,

petition was presented on the ground that at the time of

marriage, petitioner's husband was a Christian. If that be

so, having regard to the provisions of section 2, the

Hindu Marriage Act, 1955 has no application for seeking

any of the reliefs including the nullity of the marriage.

Petition, as present, was, therefore, untenable.”

9 Learned Advocate for the appellant submitted that the

consent to the marriage was obtained by fraud and hence, Section

12(c) of the Hindu Marriage Act would come into play. He

submitted that the petition ought to have been preferred under

Section 12(c) of the Hindu Marriage Act. Section 12 (c) reads as

under:-"12. Voidable marriages :- (1) Any marriage

solemnized, whether before or after the

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commencement of this Act, shall be voidable and

may be annulled by a decree of nullity on any of the

following grounds, namely:-(a) ................

(b) ................

(c) that the consent of the petitioner, or where the

consent of the guardian in marriage of the

petitioner [ was required under Section 5, as it

stood immediately before the commencement

of the Child Marriage Restraint (Amendment)

Act,1978 (2 of 1978)], the consent of such

guardian was obtained by force [or by fraud as

to the nature of the ceremony or as to any

material fact or circumstance concerning the

respondent]; or

(d) .........................

10 Though, this stand has been taken belatedly, we have

examined the same. As observed in foregoing paras, the appellant

has stated in her petition that her father and the respondent's father

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were close friends. The appellant and the respondent were

acquainted with each other since their childhood. Their marriage

was love marriage. In the petition itself, she has stated that she was

a Hindu by religion and the respondent was a Christian by religion

and he did not convert himself into Hindu religion. It is not the

case of the appellant anywhere in the petition that she came to know

just before filing of the petition that the respondent was a Christian.

11 The surname of the respondent is 'Pinto' which is

distinctly a Christian surname and can never be a Hindu surname.

Not only has the appellant not averred in the petition that she did not

know at the time of the marriage that the respondent was not a

Hindu but from the fact that surname of the respondent is 'Pinto' and

other facts, it was clearly to the knowledge of the appellant that the

respondent was a Christian at the time of the marriage. Thus, it is

too late in the day to contend that her consent to the marriage was

obtained by fraud and that the respondent had concealed from her

the fact that he was a Christian. It is pertinent to note that in the

petition, the appellant has stated that her parents in fact opposed the

marriage as she and the respondent were from different religions.

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Thus, now the appellant cannot contend that the respondent had

concealed the fact from her that he was a Christian and therefore,

she is entitled to a decree of nullity on the ground that her consent

was obtained by fraud by concealing the fact that the respondent

was a Christian.

12 Thus, in this view of the matter, as far as the prayer for

nullity of marriage is concerned, the petition does not disclose any

cause of action. The Family Court was right in holding that the

petition does not disclose the cause of action and the same is barred

by law under Order VII, Rule 11 (a) & (d) of CPC.

13 Learned Advocate for the appellant submitted that

under the Hindu Marriage Act, the marriage can be performed only

between two Hindus and if any one of the parties or both are not

Hindus, the marriage would be a nullity. In support of his

contention, he has placed reliance on a decision in the case of

Gullipilli Sowria Raj Vs Bandaru Pawani @ Gullipili Pawani

1

.

We had carefully gone through the said decision. We find that in the

said case, the respondent-wife had filed a petition before the Family

1 (2009) 1 Supreme Court Cases 714

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Court under Section 12(1)(c) of the Hindu Marriage Act for a decree

of nullity of the marriage. The main ground taken therein was

misrepresentation by the husband that he was a Hindu by religion.

In the said case, the wife was a Hindu and the husband was a

Christian and the marriage was performed under Hindu Marriage

Act and was also registered under Section 8 thereof. However, the

main distinction between the decision relied on and the present case

is that the respondent-husband therein had suppressed the fact that

he was a Christian at the time of the marriage and hence, the wife

married him thinking him to be a Hindu. Later on, when she came

to know that the husband was a Christian, she filed the petition

under Section 12(1)(c) for a decree of nullity of marriage on the

ground that she had been beguiled into the marriage by the husband

on fraudulent considerations, one of which was that he was a Hindu

at the time of marriage. Such are not the facts in the present case.

In the present case, the appellant knew since the beginning that the

respondent was a Christian, hence, there is no case of force or fraud

in the present case. No averments to that effect have also been

made in the petition before the Family Court. Thus, this decision

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cannot be made applicable to the facts of the present case.

14 In view of the conclusion to which we have reached,

we are of the view that order passed by the learned Judge of the

Family Court is perfectly legal and calls for no interference in

exercise of appellate jurisdiction. 

15 In the result, the appeal is dismissed with no order as to costs.

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

md.saleem

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