Back
BOMBAY HIGH COURT
V.M. Kanade and Mrs. Swapna S. Joshi, JJ.
Suresh Bhandary —Appellant
versus
Mrs Sushma Bhandary —Respondent
FCA No.58 of 2015 with FCA (ST) No.27753 of 2016
Decided on 15.10.2016
Counsel for the Parties:
For the Appellant:Mr. Manoj Prajapati a/w Mr. Mayur Sapkale, Advocate
For the Respondent: Ms. Sonal a/w Mr. Filji Fedrick, Mr. Yash Choksi and Mr. Ankit Tripathi i/b FF & Associates
IMPORTANT POINT
Cruelty includes all unwarranted allegations made by one spouse against the other.
Headnote:Hindu Marriage Act 1955—Section 13(1)(ia)—Divorce decree in favour of petitioner wife on ground of cruelty passed by Family Court—Appeal—Wife was cousin of appellant husband as wife’s father was maternal uncle of husband and parties belonged to Shetby—No reason to disbelieve version of wife about vulgar assault by husband—Appellant’s plea that wife had not produced medical certificate, her evidence should be discarded could not be accepted—In written statement as well in his petition for restitution of conjugal rights husband tried to tarnish image of wife in various ways but failed to establish those allegations—Cruelty includes unwarranted allegations made by husband against wife—No interference was warranted in impugned judgment.
Held: It has to be borne in mind that the principles of appreciation of evidence are quite well settled. In a dispute between the husband and wife, it is not possible to bring documentary evidence on record and, very often, the case has to be decided on the word of the wife against the word of the husband. A judicial trained mind, however, can very well examine the facts and circumstances of the case and then draw its own inference from the material on record. Most of the time acts of cruelty take place in close room or bedroom of the couple where neither the parents nor children are privy to what happens inside the four walls of the bedroom. It is also quite well established that the women in India normally do not like to bring the dispute between the husband and wife in open and very often do not disclose to their parents extreme cruelty at the hands of the husband because she feels that if such a disclosure is made, it would make her parents unhappy. The situation in India is therefore such that the husband plays a dominating role in the house despite the fact that wife is educated, working and belongs to affluent family.
In the present case, the facts are quite interesting. The wife is a cousin of the husband. Wife’s father is the maternal uncle (Mama) of the Appellant/husband and such marriages are permitted in India according to Hindu Law and it has also been the tradition and custom in Southern part of India. It is common ground that the husband and wife belonged to Shetty Community which is mainly in the hotel business. It is also common ground that wife and the husband fell in love and at the relevant time the wife was 18 years old and the husband was 35 years old. There was a big difference of age between both of them. We have no reason to disbelieve her version of regular assault by the husband, though it has been strenuously urged that instead of going to medical clinic, the wife went to photo studio to create the fabricated record. We do not accept this submission. If the wife is interested in maintaining good relations with the husband and his family members, she would conceal several cases of assault by the husband rather than choose to go to Police Station and lodge a complaint. It is a matter of record that, initially, in 2003, she had left the house and gone back to her father. However, after she was persuaded by the husband, she returned to the matrimonial house. Second time however she left in the year 2006 when things became intolerable, even leaving her only son with the husband.
The consistent evidence given by the wife therefore echoes her trauma which she had suffered continuously at the hands of the husband. The contention of the Appellant/husband that because she has not produced medical certificate, her evidence should be discarded cannot be accepted. We are therefore of the view that the Respondent/wife has established that husband had treated her with physical and mental cruelty by constantly assaulting her and by mentally torturing her.
The second ground which has been taken in the Petition is that the Appellant/husband was demanding money from the wife’s father. Both the parties have led evidence on this point. There is no material on record to establish that such demand was made. Moreover, in the later part of her testimony, the Respondent/wife at one stage had stated that the husband’s hotel known as Curi Club was doing very well. We are therefore not satisfied that the said ground which has been taken by the Respondent/wife can be said to be established and for want of further material on record we are of the view that the said ground is not established.
Thirdly, however, from the perusal of the Written Statement filed by the husband and also from the averments made by him in the Petition for restitution of conjugal rights, it is evident that the husband had tried to tarnish the image of Respondent/wife in various ways and from the material on record we do not find that he has established all these allegations which are made by him in the Written Statement as well as in the Petition under section 9.
It is quite well settled that definition of cruelty now has been held to include all unwanted allegations made by the husband against wife.
In the present case, we find that all these allegations which are made by the husband in the Written Statement and in the Petition under Section 9 clearly amount to cruelty and would have to be treated as instances of cruelty. On both these grounds therefore, Respondent/wife has established her case against her husband and therefore the learned Judge of the Family Court after going through the evidence has rightly held that the Respondent/wife has proved her case and therefore granted decree of divorce in her favour. (Paras 16 to 21 and 22)
Result: Appeals dismissed.
V.M. Kanade, J.—The learned counsel for the Appellant has invited our attention to a letter dated 9/10/2015 written by an advocate on record in the Supreme Court, informing him that the Appellant is taking urgent steps for filing an SLP against an order passed by this Court dated 2/9/2016. In the said letter, it is therefore, requested that an adjournment may be taken for hearing of the appeal. It is submitted that Appellant may seek adjournment on this ground.
2. In our view, so far as order dated 2/9/2016 is concerned, we had already granted leave to the wife to file an application seeking enhancement of maintenance. We had made it clear to both the parties that we do not propose to hear an application for enhancement of maintenance, and that we would like to hear the main appeal first.
3. This is a peculiar case where the husband is not ready to give divorce, though consent terms were filed and practically Respondent/wife had almost agreed to all the terms and conditions, which are imposed by the husband, because she had no other option but to do so. The wife, therefore, did not claim custody of the son or even access, since he is almost 16 years of age and very soon he will attain 18 years of age, and he would be in a position to decide whether he would like to meet his mother or not. Secondly, since wife was seeking divorce on the ground of cruelty, she agreed to withdraw all the allegations, which were made in the petition. The husband, however, insisted that record should be clear. However, the husband insisted that wife should make a statement that the allegations which were made by her in the petition for divorce were false. She did not accept this condition. Lastly, she had also agreed that she will not claim past or future maintenance and that she will also not claim share in the property, and the consent terms were exchanged. We had suggested that both parties should withdraw allegations against each other because if a statement is made by wife that the allegations, which were made by her in the petition, were false that would create a problem for her in future because the husband may again prosecute her for making false allegations. We explained both the parties that standard formula in such cases is that both parties should withdraw the allegations made against each other. Thereafter again a new contention was raised by the husband, and he insisted that wife should make a statement that she does not have any claim in the husband’s property, and she would not create any right, title and interest in the property of her husband or his family members. It needs to be pointed out that the father of the wife is the maternal uncle of the husband, which relationship is permitted under the Hindu Law, and there is a custom of giving maternal uncle’s daughter in marriage to the sister’s son in India. In this case, however, the Appellant and the Respondent had love affair when the wife was just 18 years of age and the husband, at that time, was 35 years of age. It is a matter of record that wife’s father is comparatively in much more better financial position than the Respondent, as has been transpired during the course of submissions, made by the parties. The husband’s mother has filed a suit against her brother claiming share in the property of her father. In the said suit, allegations are made that signatures of his mother are forged by the Respondent’s father. We are informed that the husband proposes to file a similar suit.
4. It appears that, therefore, husband is not keen to file the consent terms. The parties, of course, cannot be forced to coaxed or threatened to enter into the consent terms and they have to do so only at their own volition. It is duty of this Court to pursue the parties to sit together and find out an amicable solution. If the solution cannot be arrived at, the Court has no other option but to hear the matter on merits. Since we have made it clear that the application for maintenance
