BOMBAY HIGH COURT
Smt. Vasanti A Naik and Kum. Indira Jain, JJ.
Sau. Sarika —Appellant
versus
Sachin —Respondent
Family Court Appeal No.344 of 2014 with Cross Objection No.15 of 2012
Decided on 15.9.2016

Headnote:Hindu Marriage Act, 1955—Section 13(1)(i-a)—Decree of divorce on ground of cruelty in favour of husband by Family Court—Custody of minor son of parties given to wife by Family Court—Appeal by wife and cross objection by husband—Evidence of husband that wife treated him and his parents with cruelty remained unchallenged and unrebutted in cross-examination—Evidence also remained unchallenged that wife went to a well and threatened to commit suicide—Family Court rightly held husband entitled to decree of divorce—Evidence showed that husband was conducting himself as a good father and was desirous of giving substantial amount to wife towards her maintenance—Minor son was now seven years old, it would be necessary in interest of justice to permit husband to have custody of child for some more time during school days and equally with wife during vacations.

       Held: The admissions of the wife in her cross-examination to hold that the husband has proved that the wife has treated the husband with cruelty and he is entitled to a decree of divorce. Though the wife had stated in her evidence that her in-laws had harassed her and also assaulted her on certain occasions, the wife did not prove the said fact by tendering cogent evidence. In fact, the wife admitted in her cross-examination that her in-laws had never demanded dowry, that her mother-in-law was in service, that she used to go out for work from 10.30 a.m. till 4.30 p.m., that the mother-in-law used to cook food in the morning and that she used to cook the food in the evening. The wife had admitted that her elder brother used to ill-treat her and had even threatened to kill Anvesh. The wife had admitted in her cross-examination that she was aware before the marriage that her husband was the only son of his parents and that she would be required to live in a joint family. The wife admitted that when her mother-in-law asked her as to why she had cooked the vegetable in the evening when there was sufficient cooked vegetable available, she became angry and had slept empty stomach and also did not have her lunch on the next day. The wife admitted that in the evening on the next day, she had called a tiffin from outside for dinner as she was angry with her mother-in-law. The wife admitted that her father had come to the matrimonial home and had given her an understanding that she should behave properly with the husband and her in-laws. The wife admitted that her father had told her in-laws that the wife was hot tempered. The wife admitted that she assured her father that she would behave properly with the husband and her in-laws. The wife further admitted that she had torn the poster-picture of a baby that was affixed on a wall in her bedroom. The wife admitted that she had written on a stamp paper (Exhibit 51) that she would behave well with her husband and her in-laws in future and that her father had bought that stamp paper and that the contents of the stamp paper were written in her handwriting and that she had signed the same. The wife had admitted that when there was a quarrel between the husband and the wife on 24.05.2010, she had called the police from her cellphone. The wife had admitted that she was standing near the well as stated by the husband but, that was not for the purpose of committing suicide. The wife admitted that on 08.09.2011, i.e. after the separation, she had called the husband, in his office that Anvesh had fallen down and had a bump on his head with a bleeding injury but, she did not take Anvesh to the doctor. The wife had admitted that she had been to the housing society where her husband resides and lived in the night in the house of one Shri Deshpande and had called the tiffin for Anvesh from her in-laws. From the aforesaid admissions of the wife, it is clear that the wife had treated the husband with cruelty. In this case, the evidence of the husband has remained unchallenged. The evidence of the husband is supported by the evidence of the witnesses examined by him. Apart from the fact that the evidence of the husband has remained unchallenged, the admissions of the wife in her cross-examination have further proved that the wife had treated the husband with cruelty. The wife had made reckless allegations against the husband and her in-laws in regard to the ill-treatment meted out to her including the physical violence but, she has failed to prove the same by leading cogent evidence. In fact, the wife had admitted in her cross-examination that her in-laws had never demanded dowry, that her mother-in-law used to be out of the house from 10.30 a.m. till 4.30 p.m. as she was in service, that her mother-in-law used to cook the food in the morning and that she was required to cook the food in the evening. The wife had admitted that when her mother-in-law casually asked her as to why she had prepared the vegetable in the evening when the vegetable cooked in the morning was remaining and was sufficient for the family, for dinner, the wife became so angry that she had slept empty stomach that night, did not have her lunch on the next day, and had called for a tiffin for her, for the dinner on the next day. The admissions of the wife clearly show that she was extremely hot tempered and she used to make a big issue of trifle matters. The allegations made by the husband in regard to the eccentric nature and temperament of the wife are proved by the husband not only by his evidence, that has gone unchallenged but, also by the admissions of the wife in her cross-examination. The wife has admitted that she was standing near the well but, she stated that that was not for the purpose of committing suicide. We believe the case of the husband that the wife was threatening the husband that she would commit suicide. The wife was eccentric and the fact that the wife was standing on the brick-skirting of the well, shows that the wife threatened the husband that she would commit suicide. The allegations made by the husband in this regard have been proved by the husband by tendering cogent evidence, that has remained unchallenged. There is no cross-examination of the husband on this aspect from the side of the wife. It is proved by the husband from his evidence as well as the evidence of the wife in her cross-examination that the wife was treating the husband with cruelty. The Family Court has rightly held that the wife was not behaving properly with the husband and her in-laws, or else there was no occasion for her to prepare the writing on the stamp paper, Exhibit 51, that she would behave well with the husband and the in-laws, in future. The act on the part of the wife to remain without food for more than a day, when she knew that she was pregnant, the act on the part of the wife to call the police in the matrimonial home, the act on the part of the wife to tear the baby poster after a fight, the act on the part of the wife to stand on the skirting of the well to threaten the husband, the act on the part of the wife to threaten the husband to commit suicide, the insistence on the part of the wife to stay away from his old in-laws and the writing by the wife that she would behave well in future, show that the wife treated the husband with cruelty. The cumulative effect of the acts on the part of the wife of becoming angry on trifle matters, threatening the husband to commit suicide and attempting to commit the same by standing near the well surely tantamounts to cruelty. It would be difficult for any husband to live with the wife, who continuously gets flared up on trifle issues and threatens to commit suicide or injure the minor child. The Family Court has rightly held that it was clear from the oral and the documentary evidence on record that the wife had treated the husband with cruelty and that he was entitled to a decree of divorce on the said ground.

       Having held so, it would be necessary to consider as to who would be entitled to the custody of Anvesh. The wife has admitted in her cross-examination that her brother had threatened to kill Anvesh. She had also admitted in her cross-examination that though on 08.09.2011, she had telephoned the husband that Anvesh had a fall and had a bump on his head with a bleeding injury, she did not take Anvesh to a doctor. Though the aforesaid admissions on the part of the wife would result in recording a finding that the wife was not taking proper care of Anvesh, we are not inclined to permit the husband to have the custody of Anvesh in the entirety. It is not in dispute that the husband is paying a sum of Rs.10,000/to the wife and Anvesh and also paying the school fees, fees for the speech and development therapy and is bearing the other expenses for Anvesh. It is fairly stated on behalf of the husband that even if the custody of Anvesh is granted to the husband, the husband would still continue to pay a sum of Rs.10,000/to the wife. We have found from the evidence of the husband and the statements made on his behalf in this Court at the time of hearing that the husband is conducting himself as a good father and is also desirous of giving a substantial amount to the wife towards her maintenance. It is also not disputed by the counsel for the wife that the husband used to drop and collect Anvesh from the school and the coaching classes, even after the parties had decided to share the custody-access to Anvesh, as per the terms of settlement, executed on 19.09.2013. The husband and the wife had agreed in terms of the interim settlement that Anvesh would be in the custody of the wife from Monday to Friday and from Friday evening to Monday Morning, the custody-access of Anvesh would be with the husband. We find that the custody of Anvesh is given to the wife by the Family Court only because the custody of a child should normally remain with the mother, if the child is below five years of age. Now, Anvesh is seven years of age and in the circumstances narrated hereinabove, it would be necessary in the interest of justice to permit the husband to have the custody of Anvesh for some more time during the school days and equally with the wife during the vacations. In the circumstances of the case, we are not inclined to grant the custody of Anvesh only to one of the parents as the child is a slow learner, and in our view, both the parents should be able to shower their love and affection on Anvesh so that the child remains attached with both of them. (Paras 10 and 11)

       Result: Appeal dismissed. Cross objection disposed of accordingly.