BOMBAY HIGH COURT
A.M. Khan Wilkar and A.R. Joshi, JJ.
Bhavana N. Shah —Appellant
versus
Nitin Chimanlal Shah —Respondent
Family Court Appeal No. 28 and 29 of 2012 with Civil Application No. 41 of 2012
Decided on 21.6.2012
Counsel for the Parties:
For the Appellant:Ajit Karwande, Advocate.
For the Respondent: In person.
Headnote:Hindu Marriage Act, 1955—Sections 13(1)(ia), 13(1)(ib) —Appeal against judgment passed by Family Court whereby it allowed petition filed by respondent husband for dissolution of marriage and divorce on ground of cruelty and desertion—Held, making of false, frivolous and unsubstantiated allegations against the husband in the communication as well as reiterating the same in the written statement and also in oral evidence given by wife before Court was bound to cause mental cruelty to husband—Baseless allegations of wife that husband had illicit relations with his two sisters was by itself a good and germane ground to dissolve marriage between the parties under Section 13(1)(ia) of Act—Again, appellant wife left matrimonial home on her own and inspite of persuasion by respondent husband and his family members, she refused to resume cohabitation/conjugal rights—Family Court hence rightly granted decree of divorce on ground of desertion under Section 13(1)(ib) —No interference called for with said order of Family Court granting decree of divorce—Appeal dismissed. (Paras 8 to 11)
(ii) Hindu Adoption and Maintenance Act, 1956—Section 18(1), 18(2)(a) (e) and (g) —Petition filed by appellant wife for maintenance and separate residential accommodation—Dismissed by Family Court—Appeal—Considering the fact that Family Court had not properly dealt with issues of maintenance and separate resident, held appropriate to quash and set aside reasons and conclusion on these two issues—Matter remanded back to Family Court for reconsideration. (Paras 15 to 18)
Result: Ordered accordingly.
A.M. Khanwilkar J.— We propose to dispose of both these Appeals together by this common judgment.
2. Appeal No.28/2012 is directed against the Judgment and Decree passed in Petition No.A-1082/2007 dated 1st December, 2011 passed by Family Court No. VII, Mumbai, whereby, the Family Court allowed the Petition filed by the respondent/husband for dissolution of marriage and divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955.
3. The other Appeal being Appeal No.29/2012 is also filed by the wife alongwith daughter challenging the common judgment dated 1st December, 2011 passed by the Family Court Na VII, Mumbai in Petition No.C-136/06 praying for maintenance and separate residential accommodation for herself and minor daughter Palak Nitin Shah under Section 18(2)(a), (b), (g) and 20 of the Hindu Adoptions and Maintenance Act, 1956.
4. The Family Court by the common judgment has dismissed the petition filed by the wife and minor daughter for maintenance and residential accommodation but has allowed the Petition filed by the husband for dissolution of marriage and decree of divorce. We would first examine the challenge to the decree of divorce by the appellant wife.
5. The respondent husband in his Petition filed under Section 13(i) (ia) and (ib) of the Hindu Marriage Act has stated that the marriage between the parties took place on 5th February, 1990. They were blessed with one daughter named Palak. After few years, discord between the spouses took place as a result of very rude behaviour of the wife. The wife was uninterested in domestic work. She picked up quarrels on unessential matters and created unhealthy atmosphere in the house. The wife was in the habit of making false, frivolous and concocted allegations against the husband and his family members. She went to the extent of making false allegations against the husband having illicit relationship with his two real sisters. That on 1st June, 2005, the wife left her matrimonial home on her own and inspite of persuasion by the husband and his relatives, she refused to join the company of the husband. On the basis of these allegations, the husband prayed for dissolution of marriage between the parties solemnized on 5th February, 1990 at Mumbai and the decree of divorce.
6. The appellant wife filed written statement to oppose the said petition. The parties adduced evidence in support of their respective claim. The Family Court adverting to the relevant evidence and placing emphasis on the admissions given by the appellant wife in her cross-examination, accepted the claim of the respondent husband. The Family Court in the common Judgment has highlighted the admissions of appellant in her cross-examination wherein she has admitted that she did not lodge any complaint before police against respondents or his family members. Further, she does not have any evidence to show that she was tortured mentally as well as physically. She admitted that she got her daughter admitted in Nazareth School without consent of her husband and she had never discussed with husband about the same. She has also admitted that the husband and his family members approached her and tried to convince her to come back to her matrimonial home on two occasions. She has admitted in the cross-examination that she saw the illicit relations between her husband and his real sisters. The Family Court has then considered the admission of appellant’s witness PW2 i.e. daughter Palak. It has then noted that besides the oral admissions of the appellant and her witness, even the documentary evidence goes against the appellant. It took into account the pleadings and oral evidence of the parties, more particularly, in respect of the allegation about the illicit relations of husband with his sisters. The appellant had made those allegations in her letters sent to the husband and reiterated the same in the pleading and also in the oral evidence and justified the same on the ground that was her inner