2010 Supreme(Bom) 403

High Court of Judicature at Bombay
D.B. BHOSALE & THE HONOURABLE MR. JUSTICE R.Y. GANOO
Smt Nita alias Nathi Hitendrakumar Sakariya
Versus
Shri Hitendrakumar Kaluram Sakariya
FAMILY COURT APPEAL NO.68 OF 2005
Decided on: 12-03-2010

Headnote:Hindu Marriage Act, 1955 - Section 13(1)(i-a) - Decree of divorce - Appeal against by wife - Divorce granted on husband’s petition on grounds that appellant wife making wild allegations against all members at his family in complaint under Section 492-A of IPC - Convictions done by Magistrate - Set aside by Appellate Court - Serious allegations pertains to alleged custom in family - Held - Allegations by respondent-husband and his evidence sufficient to hold that ground of cruelty proved - Appellant made life of respondent and his family miserable - Decree of divorce passed under Section 13(1)(i-a) of Act warrants no interference - As regards maintenance, considering facts and circumstances of case, amount of maintenance awarded enhanced to Rs. 5000/- each for wife and son from date of this order - Decree of divorce confirmed - Appeal partly allowed. - In the present case, it is true that no amendment to the pleadings was sought by the respondent after the wild allegations were brought on record by the appellant in the written statement to contend that those allegations constitute mental cruelty. But it cannot be overlooked that the respondent had no occasion to raise this plea in appeal since he had no reason to file appeal against the impugned judgment. That apart, it is pertinent to note that the appellant in her deposition has repeated these allegations against the respondent so also cross-examined the respondent and his witnesses in respect of these allegations. On the other hand, the respondent while cross-examining the appellant and her witness, challenged and denied the allegations about the family custom and put a specific case to the respondent that the criminal complaints and the allegations made by the appellant in the written statement caused harassment to him and his family members and that spoiled their reputation in the society and as a result of the allegations he lost his father. Thus, it cannot be said that it was not the respondent’s case that the allegations in the written statement did not cause cruelty and harassment to him and his family members. Court is of the opinion that the amendment of the pleadings in such a situation was not necessary and in the absence thereof the respondent-husband can rely upon the allegations made in the written statement to contend that he and his family members were subjected to cruelty and/or those allegations constitute mental cruelty. The judgment of the Supreme Court in Pushpawati Latila ’s case, in Court’s opinion, is of no avail to the appellant in view of the peculiar facts and circumstances of the case in hand.

       Even if it is assumed that the allegations made by the appellant in her written statement cannot be relied upon to hold that they constitute cruelty, in Court’s opinion the allegations made by the respondents in the petition and in his evidence are also sufficient to hold that the ground of cruelty has been proved. The conduct of the appellant clearly shows that she had made the life of the respondent and his family members miserable. The manner in which she used to lodge criminal complaints one after another against the respondent undoubtedly would constitute mental cruelty. Court is satisfied that there is no chance of their coming together and living together again and, therefore, their marriage has been rightly dissolved by the trial Court under Section 13(1)(i-a) of the Hindu Marriage Act.

       Insofar as maintenance is concerned, the respondent has deposed that their joint family is having a shop of gold jewellery and he was partner in the jewellery business of the family. He has also stated that he was having 55% share in the said business but the said shop was closed in 1998 and since then he has been doing repairing work of jewellery from his residence. His income before the shop was closed was Rs. 30,000/- per annum and thereafter he started earning 3000-4000 rupees per month by doing repairing work of jewellery. He has stated that he is not in a position to pay the maintenance, as prayed by the appellant. In the cross-examination, he has admitted that there was raid on their shop in December, 1996 and that the case filed by the Income Tax Department is pending in the Esplanade Court. He has also admitted that he was called upon to pay Rs. seventy-five lacs by way of income-tax, which he could not pay and the case is still pending. He has further stated that because of the raid, he had to close his shop. The raid was against him and his partner Dinesh Singhvi. He has admitted in the cross that in the raid 4.1/2 kgs. gold was found in the shop and the gold is now in the custody of the Income-tax department. He has further explained that he had taken gold from 10-12 persons from the market and that he gave names of those persons to the Income-tax department.

       Further in the cross-examination, he has admitted that the shop by name Nakoda Jewellers is standing in his name. This is the same shop which, he was required to close in 1998. He has further admitted that the second shop, by name Sakaria Jewellers, is of his brothers Ramesh and Puranmal. There is yet another shop Amirchand Beharaji, which, according to the appellant, is of his father. He has further admitted that his brother Puranmal has started a new shop, by name Rajendra Jewellers and Mart at Kalbadevi. It is thus clear that except the shop by name Nakoda Jewellers there is no other shop standing in the name of the respondent, The respondent was also asked about other properties standing in the name of different members in the family and their income also. However, that information, in Court’s opinion, would not help the appellant in any manner for seeking enhancement of maintenance from the respondent.

       The appellant, in her deposition, has stated that initially by the judgment and order dated 15.3.1999 the respondent was directed to pay Rs. 1500/- p.m. to herself and Rs. 1200/- to her son Aniket. On 20.5.2003, she filed an application for enhancement of maintenance pending the hearing and final disposal of the petition and sought maintenance of Rs. 15000/- each for herself and her son. Over and above this, the appellant has not stated anything further in her affidavit of evidence on the issue of maintenance. She has not produced any evidence in support of her claim of maintenance Rs. 15,000/- each for herseland her son. In the cross-examination, she denied the case put to her that the enhanced maintenance claimed by her, is exorbitant and that the respondent has no capacity to pay the same. Over and above this, there is no evidence on record about the income of the respondent. It is thus clear that the income of the respondent as per the evidence on record is certainly not sufficient enough to enhance the maintenance, as prayed by the appellant. The evidence shows that after the raid in 1998 the respondent stopped filing Income-Tax returns. The appellant has not stated about any other source of income of the respondent. Mr. Walawalkar, counsel for the respondent, however, submitted that the appellant is prepared to pay little more than what has been awarded by the Family Court and he left that to the Court. Keeping that in view and having considered the back ground of the family from which the respondent comes from and looking to their family business so also his income in 1994, as stated by him, in his examination-in-chief, Court deems it appropriate to direct the respondent to pay Rs. 5000/- each to the appellant and her son Aniket from the date of this order. This shall not preclude the appellant, if so advised, from seeking enhancement of the maintenance amount in accordance with law.

       In the result, the appeal is partly allowed. The decree of divorce on the ground of cruelty is confirmed. The appellant’s claim of stridhan is rejected. The respondent shall pay Rs. 5000/- each to the appellant and her son Aniket from the date of this order.