Oral Judgment: (Smt. Vasanti A. Naik, J.)
By this appeal the appellant challenges the judgment passed by the Family Court, Nagpur on 02.07.2008 in Hindu Marriage Petition No.A-324/2006, granting a decree of divorce in favour of the respondent-husband, thereby dissolving the marriage between the appellant-wife and the respondent-husband.
2. Few facts giving rise to the appeal are stated thus :-
A petition was filed by the respondent under Section 10 r/w Section 13 of the Hindu Marriage Act, 1955 for judicial separation or for grant of divorce. It was pleaded by the respondent that he was a qualified engineer working in a Public Sector Undertaking since 14 years. The respondent was married to the appellant on 25.05.2001 at S.C.Z.C.C. Lawns, Nagpur and the marriage was solemnized as per the rites and customs in Buddhists Community. After the solemnization of the marriage the respondent started residing with the petitioner. It is stated in the petition that within a few days of the marriage, the appellant started quarreling with the respondent without any reasonable cause and on flimsy grounds. The first quarrel took place only 15 days of the solemnization of the marriage. It is stated that the parties could not go for honeymoon as the appellant had an injury to her leg and was being treated for the same. While they were in New Delhi for a short period from 20.08.2001 to 02.09.2001, the appellant remained aloof and did not show any interest in the respondent. It appeared to the respondent that the appellant was not happy with the marriage and had not married the respondent with free will.
3. It is pleaded that after the solemnization of the marriage, the appellant conceived but was advised by the doctors to abort the foetus as at the relevant time the appellant was taking steroids for curing her other ailments, like the leg injury. However, the appellant declined to abort the foetus and created a scene. On the said issue, the appellant's father also abused the respondent and insulted him. At the relevant time when the tests were conducted on the appellant, the respondent became aware that the appellant was a patient of Sickle Cell Trait, a genetic disorder. Since such a disorder, as per the opinion of the medical experts could be transmitted to the progeny, according to the respondent, it was necessary for the appellant and all her family members to have disclosed about the disorder to the respondent. However, the said fact was concealed from the respondent. It is pleaded that the appellant quarrelled with the respondent and his parents almost every fortnight on petty grounds and without any valid reasons. The respondent was required to remain away from home continuously for a period of 14 days at the sites on which he was working and whenever the respondent used to come to Nagpur, he was welcomed with quarrels and complaints. The respondent stated that the appellant was non-operative, quarrelsome, short tempered and self centered. It is pleaded that an amount of Rs.15,000/- was paid to the father of the appellant at the time of marriage just to give him a helping hand. Though the respondent had not asked for dowry and had equally spent for the marriage ceremony, the appellant levelled false allegations that the respondent and his parents had demanded dowry. It is pleaded that the appellant threatened to initiate proceedings against the respondent under Section 498-A of the Indian Penal Code on false allegations of ill-treatment and harassment by the respondent, his parents and sisters.
4. It was pleaded that the appellant had a habit of frequently leaving the matrimonial home and the company of the respondent without formally intimating the respondent and behind his back. The appellant used to stay at her parents' residence for days together and this caused great inconvenience to the respondent and his family members including his daughter. In January, 2005 the appellant during a quarrel between the parties threatened to commit suicide and falsely implicate the respondent and his family members. Similarly in November, 2004 when the appellant, respondent and his family members attended the pre-marriage ceremony of the respondent's cousin, the appellant quarrelled with the mother of the respondent for no reason and when the respondent tried to pacify her, the appellant started shouting and created a scene. The appellant thereafter called her father on the very next day to her matrimonial home and the father of the appellant along with the brother of the appellant came to the residence of the respondent and the father of the appellant threatened the respondent that he would implicate the respondent and his family members in a criminal case under Section 498-A of the Indian Penal Code. In the aforesaid background, the respondent sought a decree of judicial separation or a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 on the ground of cruelty.
5. The appellant filed the written statement and denied the claim of the respondent. It was denied that the respondent started quarrelling with the appellant within a few days of the solemnization of the marriage. Some of the allegations made by the respondent were not specifically denied and it was stated that the contents of paragraph nos.2 and 3 of the petition were denied being imaginary. Instead of denying the pleadings of the respondent in regard to advice of the Doctor for aborting the child as the appellant was treated with steroids, no specific denials found place in paragraph no.4 of the written statement. It was stated in the written statement that the allegations against the appellant in regard to Sickle Cell Trait, a genetic disorder were the creation of the respondent. The appellant pleaded that the respondent be put to strict proof of the same. It was also stated that it would be necessary to decide as to how the respondent could brand the appellant as a patient of Sickle Cell Trait. It was stated that it was funny to state that the respondent had paid an amount of Rs.15,000/- to the father of the appellant during the marriage for giving him a helping hand. It was denied that the appellant was in the habit of frequently leaving the matrimonial home and the company of the respondent without intimating the respondent and behind his back.
It was pleaded that in the Buddhists Community a parental love of a lady i.e. the appellant also exists even after the marriage and no lady can afford to break ties and show disaffection towards her parents after her marriage. It was stated that merely because the appellant was married to the respondent it could not be said that the appellant should forget her past life and her parents and should start thinking and liking the respondent and his parents only. It was stated that the plea of the respondent that the appellant threatened him that she would commit suicide was imaginary. The allegations in respect of behaviour of the appellant at the pre-marriage function of the cousin of the respondent in November, 2004 were somewhat denied. Though the respondent has stated that during the sickness of his daughter and her treatment at the hospital of Dr. Radke the appellant had not gone to see her daughter, the said fact was not denied and it is merely stated in the written statement that it was a matter of record.
6. The appellant vaguely denied the other pleadings of the respondent in the Hindu Marriage Petition. It was stated by the appellant in the written statement on oath that though both the parties were qualified, literate and from well to do families, within a short period of five years, the family of the respondent had made the life of the appellant very miserable and had compelled her to leave her matrimonial home. It was stated that the respondent is a great snob and has no respect for his wife and his in-laws. It was also pleaded in the written statement that the appellant was ready and willing to lead the marital life in the company of the respondent provided he arranged for a separate residence and live separately and away from his parents.
7. On the aforesaid pleadings of the parties, the Family Court framed the issues and after considering the evidence tendered by the parties, by the judgment dated 02.07.2008, allowed the Hindu Marriage Petition and granted a decree of divorce in favour of the respondent. The appellant has challenged the judgment by the present appeal.
8. Shri Agasti, the learned counsel for the appellant, submitted that the Family Court committed a great error in allowing the Hindu Marriage Petition for grant of decree of divorce on the basis of the scanty evidence on record. The counsel for the appellant submitted that the evidence of the respondent on the issue of cruelty was not corroborated and, hence, the Family Court ought to have discarded the same. The counsel for the appellant submitted that the evidence tendered on record shows that the appellant had not treated the respondent with cruelty and the respondent desired to seek a divorce only because he became aware that the appellant suffered from Sickle Cell Trait. It is submitted that Dr. Deshmukh had clearly admitted in the cross-examination that if one of the parents does not suffer from the Sickle Cell Disease, it is not possible that the child should have the disease. By taking this Court through the evidence tendered by the parties, it is submitted on behalf of the appellant that no ground has been made out for grant of a decree of divorce on the ground of cruelty and this is a case where, as a result of normal wear and tear, minor bickering took place between the parties. The learned counsel for the appellant relied on the judgments reported in AIR 2004 Calcutta 161 (Smt.Arunima Bhattacharjee Versus Shayama Prosad Bhattacharjee), AIR 2009 SC 589 (Suman Kapur Versus Sudhir Kapur) and AIR 1975 SC 1534 (Dr.N.G. Dastane Versus Mrs. S. Dastane) to substantiate his submission that the respondent was not entitled to the grant of decree of divorce on the basis of the evidence tendered by him.
9. Shri Bhutada, the learned counsel for the respondent, supported the judgment of the Family Court and submitted that the appellant was a very quarrelsome lady, who continuously quarrelled with the respondent and his family members. According to the learned counsel, there was ample evidence on record and it was also pleaded by the appellant in the written statement that she had a great desire to live separately with the respondent and away from his parents. This request on the part of the appellant, according to the learned counsel, was without a just cause. It is submitted that the Family Court had rightly considered the incident in the month of January-2005, when the appellant threatened to commit suicide. It is submitted that the appellant had an extremely bad habit of leaving the matrimonial home without informing either the respondent or his family members and that caused the respondent and his family members not only great inconvenience but, it was also a matter of worry. According to the learned counsel, the respondent had clearly proved the threats of the appellant of committing suicide or of filing complaints against the respondent and his family members under Section 498-A of the Penal Code. In such a scenario, according to the learned counsel, it was not possible to lead a harmonious marital life with the appellant. It is submitted that the appellant was combative in the written statement as she stuck to her false allegations in regard to ill-treatment and dowry though the respondent had monetarily helped the father of the appellant for the marriage expenses with a view to lend him a helping hand. It is submitted that the false allegations made in the evidence in regard to the demand of dowry would also tantamount to cruelty if the demands are not proved.
The learned counsel for the respondent relied on the judgments reported in 1987 Mh.L.J. 160 (Jaishree Mohan Otavnekar Versus Mohan Govind FA 1253/08 10 Judgment Otavnekar), I(2009) DMC 765 (DB) (Vandhana Gupta Versus Rajesh Gupta) and AIR 2002 SC 88 (Adhyatma Bhattar Alwar Versus Adhyatma Bhattar Sri Devi) to substantiate his submission.
10. On hearing the learned counsel for the parties and on perusal of the Record and Proceedings, it appears that the following points arise for determination in this first appeal.
I) Whether the Family Court was justified in granting a decree of divorce on the ground of cruelty ?
II) What order ?
11. To answer the points of determination, it would be necessary to peruse the Record and Proceedings. The respondent had tendered the evidence on affidavit and reiterated the pleadings as regards cruelty in the Hindu Marriage Petition. It was stated that the appellant quarrelled with the respondent without any reason or cause. It was stated that though the appellant was a patient of Sickle Cell Trait, a genetic disorder, the appellant and her parents did not disclose about the same to the respondent and his family members prior to the solemnization of the marriage. It was stated that the appellant had deliberately and intentionally suppressed the fact about the Sickle Cell Trait. It was stated that the appellant quarrelled with the respondent almost every fortnight on petty grounds and without valid reasons. Whenever he returned from long duty of fourteen days, the appellant welcomed the respondent with quarrels and complaints. It is stated that the appellant was not cooperative, was short tampered and was extremely self-centred. Her attitude was bad not only towards the respondent but, even towards their daughter Kunjal. It was stated that he never demanded dowry from the appellant and in fact helped the father of the appellant by paying an amount of Rs.15,000/- during the solemnization of the marriage. It was stated that the appellant had a habit of frequently leaving the matrimonial home without intimating the respondent or his family members. The appellant used to stay at her parents' residence for days together and this caused great inconvenience to the respondent and their daughter. By referring to the dates and incidents, it was also stated that after quarrelling with the respondent, the appellant used to threaten the respondent of falsely implicating him in criminal complaints. After quarrels, she also threatened to commit suicide. The incident of May-2005 was reiterated in the evidence on affidavit.
The respondent was cross-examined at length. In the cross-examination, the respondent stated that during the stay of the appellant in the hospital for treatment of gangrene to her leg, the appellant used to insult the respondent and refused to eat the food carried by the respondent to the hospital, for the appellant. It was stated in the cross-examination that the appellant used to eat food from the hospital when the respondent carried homemade food for the appellant, to the hospital. We are surprised as to why such questions which strengthened the case of the respondent were posed to him in his cross-examination. It was denied by the respondent that the appellant had not harassed the respondent and his parents. He denied the suggestion that the appellant never suffered from Sickle Cell Trait. He also denied the suggestion that in his absence his parents and his sister used to suspect about the character of the appellant and used to harass her for less dowry. The respondent reiterated in the cross-examination that both the parties had incurred half expenditure of the marriage but, the respondent had paid a sum of Rs.15,000/- to the appellant's father. He denied the suggestion that his parents and himself made a demand of Rs.5,00,000/- to the appellant. He also denied the suggestion that on the dates mentioned, there was no quarrel between the parties and that the appellant had not threatened to commit suicide.
It was also denied that the appellant or her parents never threatened the respondent that he could be implicated in a criminal case under Section 498-A of the Indian Penal Code. The respondent examined Dr.Sushama Deshmukh, a Medical Practitioner, who deposed that the appellant was suffering from Sickle Cell Trait. Nothing was brought out from the evidence of this witness to falsify her evidence in examination-in-chief. The respondent then examined Dr. Sindhu Bhute, a Medical Practitioner, who deposed that since the appellant was taking some steroids, for curing the skin disease, she had advised for termination of pregnancy and to stop taking drugs. She stated in her cross-examination that she gave the aforesaid advice to the appellant after studying the history of the appellant and after the appellant told her that she was taking steroids for curing the said ailment. Dr.Gopalkrishna Sawal, the Medical Practitioner, was also examined and he deposed that the appellant was suffering from Sickle Cell Trait.
12. The appellant also filed evidence on affidavit and stated that the attitude of the respondent towards her was not proper. It was stated that she was prevented from mixing with the neighbours and was not permitted to use the telephone. It was stated that the respondent was bent upon terminating the pregnancy against the wishes of the appellant. It was also stated by the appellant that the respondent and his family members were greedy people and they along with the sister of the respondent demanded dowry of Rupees Five Lacs from the appellant. It was stated in the evidence on affidavit that they started harassing the appellant after that demand was not fulfilled. The appellant, however, admitted in the cross-examination that she had not complained in police station about the demand by the respondent and his family members of an amount of Rupees Five Lacs. She admitted in the cross-examination that she had put forth a condition that the respondent should reside separately from his parents. She admitted that the respondent was not ready to leave his parents and was not ready to cohabit with the appellant separately. She further admitted in the cross-examination that the father of the respondent was a retired person and the mother of the respondent was also a senior citizen.
She admitted that the respondent is the only son of his parents. Though she stated that she was not ready to reside with the parents of the respondent as they harass her, she admitted that she had not complained about the harassment by the family members of the respondent to police authorities. The appellant admitted that though her daughter Kunjal was away from her for more than three years and was residing with the respondent, she had not filed any proceedings against the respondent for the custody of the daughter. She further admitted that she had not filed any petition in the Court in order to secure access to the child. She then admitted that the respondent had four sisters and all the sisters were married at the time of solemnization of their marriage. She stated in the cross-examination that the respondent used to suspect her character and stopped speaking with her but, she had not mentioned about this fact either in the notice or in the written statement. She stated that she was ready to stay with the respondent.
13. On a consideration of the aforesaid evidence, the Family Court found that this was a case where the appellant had treated the respondent with cruelty. The Family Court found that the respondent had proved that the appellant was continuously quarrelling with the respondent just fifteen days from the solemnization of the marriage and was threatening the respondent that she would commit suicide and falsely implicate the respondent in a criminal case. In regard to the specific instance of January-2005 and May-2005, there was hardly any cross-examination of the respondent by the appellant. The Family Court, therefore, held that the respondent had proved that the appellant did not only have the habit of quarrelling with the respondent and his family members but, also of threatening the respondent with dire consequences. The Family Court found that the allegations of the appellant in regard to the demand of dowry by the respondent and his family members were not proved by the appellant. The Family Court held, and rightly so, that there was hardly any evidence on record to show that the respondent had demanded an amount of Rupees Five Lacs from the father of the appellant and since the demand was not fulfilled, the appellant was driven out of the matrimonial home. The Family Court held that the allegations in regard to the demand of dowry were imaginary. The Family Court further held, by considering the evidence of the Medical Practitioners that the appellant was suffering from Sickle Cell Trait though she had denied the said fact in the written statement.
The Family Court held that the fact that the appellant was suffering from Sickle Cell Trait was not disclosed to the respondent or his family members before the solemnization of the marriage. On an appreciation of the evidence on record, the Family Court rightly found that the appellant always picked up quarrels with the respondent on petty issues and insulted and threatened him. According to the Family Court, the respondent could not have lived happily with the appellant, specially when he suffered the threats of suicide and lodging of criminal complaints, specially under the provisions of Section 498-A of the Penal Code. The Family Court found that the behaviour of the appellant did not change though the respondent granted her enough time to mend her ways.
14. Apart from the aforesaid facts, which according to the Family Court are proved, we find that the appellant was making unreasonable demand of living separately and away from the parents of the respondent though the respondent was the only son to his parents and his parents were old. The appellant had failed to prove that the parents of the respondent were ill-treating her. There was no complaint of harassment made by the appellant to the police authorities or to anybody. If a wife makes an unreasonable demand of living separately from the in-laws without any just and sufficient cause, specially in a case where the husband is the only son of his parents, the same may tantamount to cruelty. The judgment reported in AIR 2002 SC 88 (Adhyatma Bhattar Alwar Versus Adhytma Bhattar Sri Devi) and relied on by the counsel for the appellant can be made applicable to the case in hand.
15. We have noticed on a perusal of the pleadings that though the respondent had specifically pleaded about the acts of cruelty by the appellant, the appellant had vaguely denied the same in the written statement. The pleadings in the Hindu Marriage Petition are not specifically denied and there is an evasive reply to the pleadings. The pleadings in the written statement are philosophical. Some of the material allegations in the Hindu Marriage Petition are not denied at all. Without any specific pleadings of demand of dowry by the respondent in the written statement, the respondent was confronted with the suggestions in regard to the demand of dowry of Rupees Five Lacs in his cross-examination. The false and unsubstantiated charges against the respondent in regard to the demand of dowry would amount to cruelty. It has been held by this Court that serious unsubstantiated allegations would amount to cruelty.
It would be necessary to refer to the judgment reported in 1987 Mh.L.J. 160 (Jaishree Mohan Otavnekar Versus Mohan Govind Otavnekar), 2005 (1) Bom.C.R. 554 (Manisha Sandeep Gade Versus Sandeep Vinayak Gade) and III(2011)DMC 539 (DB) (Ramesh Laxman Sonawane Versus Meenaxi Ramesh Sonawane) in this regard. In the instant case, we have also found that the respondent-husband has proved that the appellant-wife was leaving the matrimonial home without informing the respondent or his family members and this had not only caused inconvenience to the respondent, their daughter and the family members of the respondent but, was also a matter of concern. We find, on a reading of the evidence of the respondent, that there was hardly any cross-examination of the respondent on the material facts and the respondent-husband was cross-examined by the appellant in respect of some allegations only. There is no straitjacket formula to decide as to what conduct would tantamount to cruelty. Whether one of the parties has treated the other with cruelty has to be decided on the basis of the facts of that case. Cruelty differs from case to case.
In the instant case, on an appreciation of the evidence on record, we find that the Family Court rightly came to a conclusion that the appellant had treated the respondent with cruelty. The submission made on behalf of the appellant, that the uncorroborated evidence of the respondent ought not have been believed, is liable to be rejected as there is no rule that divorce cannot be granted on the evidence of the party alone. The evidence of the respondent was found to be trustworthy and believable as compared to that of the appellant. The same was weighed by the Family Court and this Court. Moreover, certain Medical Practitioners were also examined by the respondent to prove his case. The case of the appellant that the respondent is trying to get rid of the appellant only because she suffers from Sickle Cell Trait cannot be accepted on an overall view of the evidence on record. This is not a case of normal wear and tear in life. The judgment reported in AIR 1975 SC 1534 (Dr.N.G. Dastane Versus Mrs. S.Dastane) and relied on by the counsel for the appellant, in fact supports the case of the respondent and not the appellant. The burden of proving cruelty no doubt lies on the respondent and the respondent had proved his case by discharging the burden.
So also, the judgment reported in AIR 2009 SC 559 (Suman Kapur Versus Sudhir Kapur) does not apply to the facts of the case. Paragraph 34 of the judgment on which reliance is placed by the appellant merely provides the guidelines to be considered while considering a claim for divorce on the ground of cruelty. The judgment reported in AIR 2004 Calcutta 161 (Smt.Arunima Bhattacharjee Versus Shayama Prosad Bhattacharjee) and relied on by the counsel for the appellant is distinguishable on facts. On an appreciation of the evidence on record, it appears that the Family Court, Nagpur had rightly granted a decree of divorce in favour of the respondent on the ground that he had proved that the appellant had treated him with cruelty.
16. For the reasons aforesaid, the first appeal is dismissed with no order as to costs.