V.C. Daga, J.
1. This appeal is directed against the judgment and decree passed by the Family Court No. 1, Pune dated 17-11-1998 dissolving the marriage between the parties to the appeal by a decree of divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to 'the Act' for short) and further directing the respondent-husband to continue to pay Rs. 500/- per month to the appellant by way of permanent alimony under Section 25 of the Act in addition to the amount of Rs. 100/- towards maintenance under Section 125 of the Criminal Procedure Code (Cri.P.C. for short) with an order granting custody of both minor sons to the respondent-father with right of access to the appellant-wife-Anita. The parties for the sake of clarity are referred to in the capacity as are shown in the present appeal.
FACTS IN BRIEF
2. The facts giving rise to the present appeal in nutshell are as under.
The appellant got married with the respondent on 26-1-1991 at Kirkee according to Hindu religion and custom. The parties to the appeal have two sons from this wedlock namely, Sidhant and Mangesh born on 8-10-1992 and 7-11-1993 respectively. Both parties are from Aryavaishya Samaj and their marriage was an arranged marriage.
The respondent-husband, having noticed frequent visits of the appellant-wife to her parents and looking to her bold behavior resulting in free movement in the society, started suspecting her character; which, ultimately, resulted in daily matrimonial bickerings between husband and wife. It appears that the suspicion in the mind of the respondent-husband about her character resulted in making enquiries about her life style prior to their marriage. The respondent-husband claimed to have learned that the appellant-wife had some illicit relations with one of her college colleagues namely Raju Babar. This suspicion in the mind of the respondent-husband ultimately, gave rise to a matrimonial dispute.
The respondent-husband on 9-8-1987 filed a petition being Petition No. E-32/97 in the Family Court at Pune for divorce on the ground that the appellant-wife practiced cruelty under Section 13(1)(ia) of the Act. The appellant-wife prior to the above petition had filed a petition being Petition No. D-44/97 seeking custody of two minor sons under Section 25 of the Guardian and Wards Act.
The respondent-wife similarly had also filed one more petition being Petition No. E-717/97 to seek maintenance under Section 125 of the Criminal Procedure Code. The parties in all the aforesaid three petitions being identical, facts involved therein being common, though the issues involved were different, the Family Court thought it fit to hear and decide all these petitions by common judgment by consent of parties.
The petition for divorce contained serious allegations against the appellant-wife alleging illicit relationship with Raju Babar, who was not joined as a party to the petition though serious allegations of illicit relations between the appellant-wife and Raju Babar were made by the respondent-husband. It was also alleged that the appellant-wife Anita was suffering from Tuberculosis. She, in the month of February, 1995, was admitted in the Gurukrupa Nursing Home, Kirkee. During this period, the mother of the respondent-husband maintained both minor sons. Since then respondent-husband started claiming custody of the minor sons. There was some settlement between the parties; whereby mutual divorce was agreed but the said settlement did not materialise with the result, the respondent issued notice on 6-3-1997 making certain allegations against appellant-wife which were replied by her, in turn making certain adverse allegations against the respondent-husband. These allegations and counter allegations resulted in filing petition for custody of both sons at the instance of appellant-wife. On being noticed the respondent-husband filed counter petition seeking divorce under Section 13(1)(ia) of the Act on the ground that the wife treated him with cruelty.
3. On being noticed appellant-wife filed her written statement at Exh. 19. She contended inter-alia; that the husband filed a petition on a false ground and the allegations made were based on conjectures and surmises without any iota of evidence. She also denied frequent visits to her parent's house. She also denied the alleged illicit relations with one Raju Babar and further denied that she was suffering from Tuberculosis and that her mother-in-law was looking after her minor sons during her alleged illness. She further contended that both sons were ready and willing to stay with her but on account of constant tutoring by the petitioner-husband, they were not willing to come with her and that they were made to speak against her. She further alleged that the respondent husband destroyed the marriage life on account of his suspicious nature as such he could not be allowed to take advantage of his own wrong. Thus she opposed this petition for divorce and prayed for dismissal of the same.
4. So far as the petition relating to the custody of the minor sons is concerned, she alleged that she is more educated than her husband as such she would be in a better position to look after the welfare of her children. She further alleged that the husband being a busy person engaged in various types of businesses, is not in a position to look after minor children consequently, both of them do not get proper attention. That is how she claimed custody of the children.
5. So far as the petition seeking maintenance is concerned, she alleged that her husband got three shops namely : Laxmi Garments, Laxmi Collection and Laxmi Selection all at Tulshibag, Pune. She further alleged that the respondent is earning about Rs. 50,000/- p.m. whereas she has no source of income, to maintain herself. She thus, prayed for grant, of maintenance under Section 125 of the Criminal Procedure Code. This prayer for maintenance was opposed by the respondent-husband on the ground that the appellant herself left matrimonial home on her own as such she is not entitle to claim maintenance. He further alleged that she was managing cash counter of the hotel business run by her father and earned about Rs. 2,000/- per month. It is further alleged that she is also conducting craft classes and earns substantial amount as such is capable of taking care of herself. So far as his own income is concerned, he denied having sufficient income. He prayed for dismissal of the petition seeking maintenance.
6. On the basis of aforesaid pleadings the Family Court framed issues and put the petition on trial. The respondent-husband examined himself with one Mr. Chintamani Chaulwar, his sister's husband along with his mother in support of his petition. The appellant-wife examined herself and also examined her father Shri Vijaykumar Kotarwar. Thus, after recording evidence of the parties and after hearing both of them, the Family Court was pleased to grant divorce on the ground that the appellant - wife treated the husband, respondent with cruelty and granted permanent alimony to the petitioner-wife @ Rs. 500/- per month under Section 25 of the Act with further maintenance in the sum of Rs. 100/- month from the date of order (in addition to Rs. 500/- per month) under Section 125 of the Criminal Procedure Code.
7. Being aggrieved by the aforesaid judgment, order and decree, the appellant-wife-Anita preferred this appeal challenging all the three orders referred to herein above contending non application of mind and perverse approach on the part of the Court below.
THE ARGUMENTS
Decree of divorce :
8. Mrs. Mulekar, the learned counsel for the appellant-wife-Anita contended that in the petition filed by the respondent-husband serious allegations were made against the appellant-wife that she was having illicit relationship with one Raju Babar prior to her marriage. These allegations could not be held as proved as the pleadings in the petition in this behalf were absolutely vague and lacked in material particulars. She further contended that Raju Babar was not made a party to the petition. The Petition was thus liable to be dismissed for non joinder of necessary parties, Mr. Raju Babar was neither examined nor cross examined by the respondent-husband even though his affidavit by way of evidence was filed on record by the appellant. She further urged that so far as the findings recorded by the Family Court with respect to the alleged relationship with Raju Babar are concerned are liable to be set aside being based on surmises and conjunctures. The inferences drawn by the Court below are perverse and cannot be sustained in the eye of law. The learned Counsel for the appellant further contended that the allegations made by the husband against the wife that she used to go to cinema before her marriage with Raju Babar and that she used to whistle in the house or on road while walking and used to speak in filthy language while in the house are absolutely imaginary and none of these allegations could be said to have been proved by the respondent.
9. With respect to an act of one neighbour Mr. Manjre, which was another ground sought to be pressed in service to allege cruelty on the part of the wife is concerned, Mrs. Mulekar, learned Counsel for Anita submitted that merely an act of applying colour on the face of Appellant - Anita that too on the day of Rangpanchami could not be said to be an incident which could normally cause any doubt in the mind of anybody much less in the mind of the respondent-husband about the illegitimate relationship so as to cause any mental agony. She further urged that this incident of putting colour by Mr. Manjre was objected to not only by the appellant - wife but also by the respondent husband and Mr. Manjre was scolded by both of them. She further urged that since it was a day of Rangpanchami (Holi), in spite of her resistance, the colour was put on her face by Mr. Manjre as such she cannot be blamed for this particular isolated incident. So far as act of going to children's school in a hurry wearing gown when the children were getting late cannot be said to be an act which could cause any mental agony to any husband. These are all normal things which do take place in a middle class families. No capital of such minor things can be allowed to be made. She submits that by any standard all these acts cannot be said to be that acts constituting cruelty so as to sustain the decree of divorce on this count.
10. Mrs. Mulekar further contended that going to college picnic, participating in the dramas or in the dance programmes or in the college elections or for that purpose travelling all over Maharashtra for the purpose taking part in the games cannot be said to be an act constituting loose character. At the most, it shows bold behavior, good development of personality and progressive attitude of the person and of her family members. She further brought to our notice that the appellant was awarded certificate of ideal student. It was also brought to our notice an admission on the part of the respondent-husband; wherein; he had admitted in his oral evidence that the college life of his wife was so clean that she was awarded certificate of ideal student. She further urged that the wife was compelled to leave matrimonial home; and that sufficient material is available on record which goes to suggest that respondent-husband refused to cohabit with her. She further contended that after the marriage the appellant stayed with her mother-in-law for about five years. Mother-in-law in her evidence did not speak a single word against the character of her daughter-in-law, the appellant. On the contrary, she admitted that the husband and wife did not pick up any quarrel in her presence. So far as other witness, i.e. brother-in-law; Mr. Choulkar is concerned, she also brought to our notice his admission wherein he said he had no personal knowledge about character of the appellant. In the light of this evidence on record she contended that the findings recorded by the Family Court are based on no evidence and none of the acts constituting cruelty can be said to have been proved.
11. Mrs. Mulekar, learned counsel for the appellant also took us through the evidence of the parties and tried to highlight the suspicious nature of the husband and his possessive attitude towards his wife. She submits that all the while he used to scold her whenever she used to be out with him or after her return if went alone. She put entire blame on the respondent-husband for spoiling the marriage between the parties. In the circumstances, she contended that none of the grounds could be said to have been made out by the respondent husband warranting grant of decree of divorce by the Family Court and sustenance thereof by this Court.
Custody of children :
12. So far as the custody of the children is concerned, she submitted that the respondent-husband had taken away the children to Kolhapur to worship Goddess Ambabai during the illness of the appellant-wife and retained the custody of the children with him taking advantage of her illness. Since then, he is avoiding to handover custody of the children. She further contended that she being the mother, was entitled to a custody of the minor children considering their welfare. She also pointed out, by way of subsequent event available on record that the respondent-husband illegally got remarried with one Ms. Sheetal on 15-4-2001 i.e. during pendency of this appeal, though respondent is disputing the date of marriage. According to him he got remarried on 28-11-2001 and not 15-4-2001. She without admitting the date of remarriage disclosed by the respondent-husband urged that this remarriage assuming to have taken place on 28-11-2001 has taken place during the period in which the appeal was dismissed - in-default as such this marriage cannot be said to be the legal marriage. In her submission order of restoration of appeal will relate back to the date of presentation of the petition as such the marriage of the respondent with Ms. Sheetal being during the pendency of the appeal cannot be said to be legal and valid in the eye of law. The appellant had filed police complaint on 16-4-2001. In her submission, the alleged second wife of the respondent-husband staying with him cannot get a better status than that of a 'Mistress' and if that be so, the appellant cannot allow her minor children to remain in the custody of the mistress of her husband which would certainly be not in the interest and welfare of the children. She also tried to encash an admitted circumstance brought to the notice of this Court during the course of oral submissions that Ms, Sheetal is presently pregnant. She urged that in view of these subsequent developments it would not be in the interest of minor children to remain in the custody of respondent husband. She also brought to our notice the treatment given to the minor children by filing her affidavit in this behalf. On these grounds she thus claimed custody of the minor children.
The maintenance :
13. So far as maintenance is concerned, she alleged that number of immovable of properties were purchased by the respondent-husband from time to time and some of the properties were disposed of by him on premium. She also brought to our notice the various business ventures undertaken by the appellant-husband from time to time and contended that looking to the income from the sale and purchase of the properties and from various business ventures his income cannot be estimated less than Rs. 50,000/- p.m. She thus claimed to be entitled for the maintenance not less than Rs. 5,000/- per month and prayed for separate maintenance, if the custody of the children is given to her.
Per-Contra
14. Ms. Sarnaik, learned counsel appearing for the respondent-husband refuted all the submissions advanced by the learned counsel for the appellant-wife and contended that the respondent-husband has proved various acts of cruelty practiced by the respondent-wife. She further urged that there was a educational and financial disparity in the family background of the husband and wife. The respondent-husband is educated only upto 5th Standard; whereas the appellant- wife is S. Y. B. Com. The appellant-wife is from a rich family, whereas the respondent is from a poor family. The educational and financial disparity resulted in the appellant insisting upon the respondent to stay separate from his brother and mother. This insistence did not find favour with the respondent-husband, which ultimately resulted in matrimonial clashes between the two and also with the other family members on the one hand and Anita on the other. She further submitted that in spite of repeated warnings, the appellant-wife used to go to school to fetch children and to buy grocery wearing night gown. This conduct was objected to by the husband on various occasions. She submits that the appellant used to pick up quarrels at the drop of the hat and used to call her mother-in-law by name; in the filthy language. The appellant wife used to taunt her husband about his poor financial and educational status and used to humiliate him asserting that she could have got better husband than him.
15. The learned counsel for the respondent further urged that the appellant-wife used to indulge in free and liberal behaviour and used to mix with unknown persons which respondent did not like. She further alleged that the incident of putting colour by one Mr. Manjre caused mental agony finding the reaction of the appellant-wife as if there was nothing wrong in it. The learned counsel for the respondent further urged that when respondent- husband came to know about illicit relations of the appellant with one Raju Babar, prior to the marriage, it was another blow to the matrimonial relationship between the parties to the appeal. This caused mental strain and agony which constituted an act of cruelty practiced by the wife; which alone was sufficient to grant decree of divorce on this count. The learned Counsel further contended that the respondent-husband has proved the said act by deposing on oath that he himself had heard telephonic talk between Rajiv Babar and the appellant when she had contacted Mr. Babar to find out whether or not her husband had contacted him. Learned Counsel urged that this piece of evidence is sufficient to demonstrate that the appellant-Anita had illicit relations with Mr. Babar.
16. Learned Counsel for respondent further contended that the witness Chintaman Chaulkar, who was examined by the respondent-husband, has duly supported the respondent's case. He also deposed on oath that there was a difference in the financial status between both parties, which resulted in ill treatment by wife. The respondent's mother Laxmibai also deposed about the abuses showered on her son by the daughter-in-law, the appellant from time to time. The learned counsel for the respondent further contended that the appellant had admitted that she had a grudge against her mother-in-law and that she had told respondent about this. She also brought to our notice the admission of the appellant wherein she admitted frequent quarrels between the parties on this count. The learned counsel for the respondent also relied upon reply-cum-notice (Exh. 38) dated 17-7-1997 in which serious allegations, not only against the appellant but against his other family members, were made by the appellant-wife, more particularly in para 10 of the said reply. She thus submitted that numerous acts of cruelty have been proved by the respondent-husband so as to maintain decree of divorce. She thus urged that the judgment and decree passed by the Family Court should not be disturbed in this appeal.
17. It is further submitted by the learned counsel for the respondent-husband that the appellant-wife in her examination-in-chief deposed and thereby admitted that they were residing in one room kitchen flat along with her mother-in-law and brother-in-law which was sufficient to demonstrate poor financial status of the family. The respondent-husband, no doubt, was doing the work of courier and had garment shop but no proof was tendered by the appellant to prove that he was and is having monthly income of about Rs. 25,000/- to Rs. 30,000/- from the various businesses. The learned counsel for the respondent relied upon the admissions given by the appellant-wife, who admitted to have knowledge that prior to marriage the respondent was selling gowns on road side footpath. There was no servant in the house of respondent. She also submitted that the mother-in-law of the appellant was serving in Trimurti Karyalaya as assistant to the cook. The learned counsel for the respondent-husband lastly submitted that he is suffering from Sodalities and has been advised not to lift any heavy articles. This has affected his earning capacity. He has purchased one flat by taking loan and at present there is demand notice served under Section 101 of the Co-operative Act issued by the Co-operative Court, calling upon him to make repayment of the loan. As against this, the appellant wife is in a better financial position than the respondent as such she does not need any maintenance. She has ability to maintain herself. The Family Court, in her submission, has thus rightly granted proper amount of the maintenance looking to the overall financial status of the respondent-husband.
18. On the question of custody of the children is concerned the learned counsel for the respondent submitted that the appellant-wife has not made out any case so as to deprive the respondent-husband of the custody of the children which he has. The appellant has not made out any case so as to contend that welfare of the children would not be looked after, if the custody was allowed to be retained with the respondent-husband. No case is made out to say that in the changed circumstances the respondent would not be able to look after the welfare of the children. The learned counsel for respondent- husband further submitted that the appellant's parent's house is situated on the first floor. There is a hotel located on the ground floor of the house. The hotel atmosphere is not only dirty but it is not safe so as to keep the children in that atmosphere with the appellant. The welfare of the children will be in danger if the custody is given to their mother. The appellant has not made out any case so as to disturb the custody of the children which is presently with the father. The Family Court has granted access to the appellant-wife with which she should be satisfied is another submission advanced on behalf of the respondent- husband.
19. The learned counsel for the respondent submitted that Ms. Sheetal is looking after minor children since the time of her marriage and no complaints were made by the children in this behalf when they were interviewed by the Family Court, Pune while considering an application for interim custody. It is therefore, submitted that the order of custody passed by the Family Court needs no interference and it needs to be confirmed. In nutshell respondent prayed for dismissal of this appeal on all counts.
20. Mr. Deshmukh, learned Counsel appearing for Ms. Sheetal wanted to be heard as intervenor in this appeal so as to contend that some rights are created in favour of Ms. Sheetal in view of her marriage with the respondent-husband, when no appeal was pending since it was dismissed in default. He prayed for grant of permission to intervene in the appeal and an opportunity to make his submissions.
CONSIDERATION/FINDINGS
21. Having heard the parties and appreciated the dispute in the light of various rival allegations, it appears that Family Court has granted decree taking into account certain factual aspects some of which in our opinion are unsustainable in the eye of law. It is no doubt true that the married life of the parties to the appeal went on smoothly initially for about five years, but thereafter parties were under severe mental strain. Both parties tried to put blame on each other for spoiling matrimonial life. They could not reconcile. Ultimately, husband invoked the jurisdiction of the Family Court to seek decree of divorce on the allegations that wife treated him with cruelty.
On divorce
22. The law on cruelty is now well settled. This is now clear in view of the decision of the Supreme Court in the case of V. Bhagat v. Mrs. D. Bhagat : AIR1994SC710 . On a review of the earlier Supreme Court decisions, right from the case of Dr. N. G. Dastane v. Mrs. S. Dastane : [1975]3SCR967 , the Supreme Court has clarified legal position which now obtains after the amendment of 1976 to the Hindu Marriage Act. In N. Bhagat v. D. S. Bhagat (supra), the Supreme Court had observed that, thus at page 437 of JT (SC) (at p. 717 of AIR),
'17. Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility of otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. It is a case of accusations and allegations, regard must also be had to the context in which they were made.'
23. The Apex Court recently in the case of S. Hanumantha Rao v. S. Ramani, : [1999]2SCR296 laid down what would constitute cruelty. The Apex Court again in the case of G.V.N. Kameswara Rao v. G. Jabilli AIR 2002 SC162 held that to constitute cruelty it need not be an act of such nature as causing reasonable apprehension that it would be harmful to the party to live with other party. The Supreme Court held that having regard to the sanctity and importance of marriage in a community life, the Court should consider whether the conduct of the counter petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the Court can find that there is a cruelty of the counter petitioner. The Apex Court in another judgment in Chetan Das v. Kamala Devi : [2001]3SCR20 has taken a view that to constitute cruelty there must be evidence in support of the averments made in the petition.
24. The relevant provision of Section 13 of the Hindu Marriage Act reads as under.
'Divorce--(a) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party--
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty, or........
'Cruelty' is not defined in the Act. Some of the provisions of the Hindu Marriage Act were amended by Hindu Marriage Laws (Amendment) Act, 1976. Prior to the amendment, 'cruelty' was one of the grounds for judicial separation under Section 10 of the Hindu Marriage Act. Under that section 'cruelty' was given an extended meaning by using an adjectival phrases, viz. 'as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party'. By the amendment Act of 1976, 'cruelty' was made one of the grounds for divorce under Section 13, and the relevant provisions quoted above would show that omission of the words which prescribed 'cruelty' in the unamended Section 10 of the Hindu Marriage Act, has made some significance in the sense that it is not necessary to prove that the nature of the 'cruelty' is such as to cause reasonable apprehension in the mind of the petitioner that it would be harmful to the petitioner to live with the other party.
25. 'Cruelty' is a relative term. It varies from person to person, and case to case. The allegation and conduct of one particular type may not amount to cruelty in all the cases. It depends upon the status of the spouses and the atmosphere in which they live. That has to be understood by seeing neatly the background behind it and effect which is likely to be caused by such allegations and conduct. Cruelty implies and means harsh conduct and of such intensity and persistence, which would make it impossible for the spouse to operate the marriage. Cruelty though not defined in the Act, it is to be determined on the basis of proved facts and circumstances of the case. No fixed formula can be had for cruelty. In this case the respondent husband invoked the jurisdiction of the Matrimonial Court to seek a decree of divorce taking advantage of the free behaviour of the appellant-wife in the society and tried to encash her earlier life which she was enjoying prior to her marriage during her college days. The appellant-husband choose to make a serious allegations against the appellant-wife contending illicit relations with one Raju Babar and support was sought to be drawn from her free behaviour and movement with her college colleagues either for going to picnic or to other social programmes.
26. The Family Court relying upon the pleadings and the evidence brought on record devoted substantial part of its judgment and held that the respondent-husband has established the number of acts of cruelty practiced by the appellant-wife. At this juncture it will not be out of place to mention that the burden to establish this fact was on the respondent-husband. He did not examine Mr. Raju Babar. He did not cross examine him though his affidavit was filed on record. It is no doubt true that the acquaintance with Raju Babar was admitted by the appellant-wife. It is no doubt true that appellant-wife might have moved for picnic or for social functions during her college days with Raju Babar or with her other college colleagues, but that by itself cannot be a sufficient ground to draw an inference against the appellant-wife to reach to the conclusion that she had illicit relations with Raju Babar prior to her marriage and those relations continued even after her marriage.
27. We have carefully examined the pleadings, evidence laid by the rival parties and the findings recorded by the Family Court in this behalf. We are unable to subscribe our assent to the findings recorded by the family Court in this behalf so as to hold that the appellant-wife had any such relations which can be called to be illicit relations so as to sustain the finding of the Court below on this count. The inference sought to be drawn by the Family Court is unsustainable. There is no evidence to support findings recorded by the Court below in this behalf. Consequently, finding recorded on this count is set aside.
28. So far as the other acts constituting cruelty alleged by the husband, on the basis of her free movements in the society, are concerned, in our view, the finding recorded in this behalf are also unsustainable in the eye of law. The incident which took place on the day of Rangpanchami (Holi) is concerned, it is no doubt true that she admitted that one Shri Manjre, the next door neighbour, had put some colour on her face, but that by itself cannot be a cause to suffer mental agony. No much importance can be given to this isolated trivial incident. No inference can be drawn against the appellant-wife on the basis of this particular event so as to reach to the conclusion that her such behaviour in any way, constituted an act of cruelty. Thus, the finding recorded by the Family Court in this behalf also deserves to be set aside.
29. The third ground on which the learned counsel for the respondent-husband sought to sustain a decree of divorce is a serious allegations made by the appellant-wife against her husband in reply to the notice at Exh. 38 dated 17-3-1997 in which she made certain allegations not only against the respondent-husband but also against his other family members, more particularly in para 10 of her reply. She made serious allegations against her husband that he had illicit relations before marriage with one Preetti, Anita and Aruna Mahajan. She did not stop here but also went on to allege his illicit relations with one Arpeeta, the daughter-in-law of his sister. These allegations, in our view, are the serious allegations made by the appellant-wife against her husband. In the pleadings in para 5 of the divorce petition, he has specifically pleaded that these allegations caused mental agony and thereby constituted an act of cruelty on the part of the wife. The notice reply at Exh. 38 dated 17-3-1998 has been admitted by the appellant-wife. Perusal of the said notice-cum-reply is sufficient to demonstrate serious allegations made against the respondent-husband.
30. The learned counsel for the respondent-husband rightly pointed out that this irresponsible insinuations and allegations made, in reply to the notice against the respondent and his family members cannot be brushed aside. As already observed hereinabove, it is not necessary that cruelty must be of such magnitude that it would cause reasonable apprehension that it would be harmful or injurious to the appellant. Cruelty must be of such a type which will satisfy the conscience of the Court that the relationship between the parties has deteriorated to such an extent that it has become impossible for them to live together without mental agony. Cruelty generally does not consist of a single isolated act but consists of a series of acts spread over a period of time. The cruelty practiced may be in many forms. It must be productive of an apprehension in the mind of the other spouse that it is dangerous to live with the erring party. In the case at hand, false and wild allegations made by the appellant-wife against her husband-respondent in the reply to the notice at Exh. 38 without any basis or foundation in our opinion, were sufficient to cause mental agony to the respondent-husband. Making wild and false allegations in the reply not only against the character of the husband but also against his other family members so as to injure the reputation amounts to cruelty. In this case, the reply to the notice given by the appellant wife has been made a ground for sustaining decree of divorce in favour of the respondent-husband so as to make out a case of cruelty practiced by the wife. We have no hesitation to hold that this act of the appellant-wife did constitute an act of cruelty on the part of the wife. The findings of the Family Court in this behalf are thus liable to be sustained on this count alone.
31. The subsequent events brought on record leading to the alleged second marriage during the pendency of the petition alleged to be illegal is a factor sufficient to indicate that some other lady has walked into the life of the respondent-husband. The counsel for the respondent-husband during the course of hearing clearly admitted the second marriage with Ms. Sheetal who is now pregnant. Under this circumstance, one can fairly reach to the conclusion that there is irretrievable break down of the marriage of the parties considering serious allegations made by the appellant-wife throwing mud on the character of the respondent-husband coupled with the fact that a stranger female has walked into the life of the respondent-husband, and after taking over all view of the matter, it is not difficult to infer that it would be difficult for both of them to live together as a happily married couple. The other various circumstances brought on record do show that relationship between the parties are irretrievably broken down. Because of the non-co-operation and hostile attitude between the parties, it would not be possible for both of them to live together. The appellant-wife has also admitted this prevailing circumstance and is not very keen to keep the marriage alive. Therefore, we are constrained to hold that a decree of divorce granted by the Family Court is liable to be sustained may be for a different reason.
On custody
32. Let us now turn to the question of custody of the minor children. This question needs to be considered in the backdrop of subsequent event which has taken place during the pendency of this appeal. To appreciate the submission advanced in this behalf, some basic principles governing the consideration have to be noticed. The interest of the minor children is to be borne in mind. It appears that the marriage between the parties has been dissolved by a decree of divorce by judgment and decree of the Family Court dated 17-11-1998. The appellant-wife filed an appeal on 11-1-1999 against the impugned judgment and decree. The appeal was admitted on 4-4-1999. By an order dated 18-4-2001 the appellant was granted eight weeks time from the date of order to supply paper books and decree forms, failing which appeal was to be dismissed without reference to the Court. It appears that the appellant could not supply paper books and decree form within the stipulated period as per the Court's order dated 18-4-2001, with the result, appeal came to be dismissed in default. The said fact is clear from the endorsement made in the order sheets of this Court. It appears that the appeal came to be restored as per Court order dated 15-2-2002 passed in the Civil Application No. 32/2002 in which restoration of appeal was sought. The appeal came to be restored. However, it appears that during this period during which the order of dismissal of appeal in default was operating, the respondent contracted another marriage with one Ms. Sheetal Chanwar on 28-11-2001. The appellant-wife is disputing the date of marriage. According to her, the date of marriage is 15-4-2001.
33. The submission is that a right of at least one appeal is a recognised right under all systems of civilised legal jurisprudence. It also cannot be disputed that with the dismissal of the appeal in default the existence of appeal is not wiped out. The possibility of its restoration cannot be ruled out. Whenever appeal is restored to file by setting aside as the order of dismissal in default, the appeal gets revived. The order directing restoration of appeal relates back also to the original date of presentation of appeal. Consequently, for all legal purposes; once the appeal is restored, it operates as validly presented appeal right from the date of its presentation; consequently upon restoration of appeal, no one can argue that during the period during which appeal was dismissed in default, there was no appeal. The submission is that the alleged marriage solemnised by the respondent- husband will be deemed to have been undertaken by the respondent at his own risk and the ultimate consequences arising in the appeal pending in the High Court. No person can be permitted to flout the course of justice by his or her overt and covert acts. In the present proceeding it is not necessary to decide the question of validity of the marriage as the same is not an issue involved in this appeal. In the facts and circumstances, the validity of the second marriage contracted by the respondent husband cannot be said to be free from legal doubt. Assuming but not admitting this marriage is legal and valid, the question which needs to be addressed is would it be in the interest of the minors to keep them in the custody of the father who is staying with Ms. Sheetal who is presently pregnant. In this backdrop, the question of welfare of the children will have to be considered. The minor children presently are in the exclusive custody of the father for last about three years. We have interviewed both the minor sons. None of them have any complaint against their mother but they were not free from the influence of their father. The role of mother is of greater importance than that of a father during the earlier years of a child. Therefore, it is for the mother to groom children. For this, mothers should be educated. Mothers can meet, exchange views, analyses problems posed by children and help them. The basic education plays an important role in the formative age of the child. One must understand that education is not literacy alone, literacy is only a part of it. Education is much more. It is the physical or biological, psychological or mental and the spiritual or ethical growth of a child. Only when these three function smoothly, one can say there is education. When viewed from this stand point, one can reach to the conclusion that in the formative years first teacher is the mother. Clean habits can easily be taught by the mother, to the extent it becomes a habit for the child. Interactions with the mother pays rich dividends Ashok Dharod v. Neeta Dharod, : AIR2001Bom142 . Ms. Sheetal, who has walked into the life of the respondent is pregnant. After delivery she will have to look after her own child. Her own infant would be her own child rather than the present children. In long term, the welfare of children would always be more safe in the hands of natural mother. The appellant-mother-Anita is more educated than the respondent-father. The respondent-father being a businessman is bound to remain busy for the entire day. He cannot afford to look after the children and monitor their studies. One has to leave his house early in the morning so as to reach his business establishment or the place of work. It is not possible to return home before 9 or 10 p.m. The person in business at any rate cannot afford to close his shop before 8.30 p.m. If that be so, such a person can only reach home after 9.30 or 10 p.m. By that time, children go to bed. With such hectic life, how one can expect father to look after his children. He cannot afford to spend any time with his children. As against this, appellant-wife will always be at home and would be in a better position to look after her children. She knows the importance of education. She can mould the habits of her children in a better way. Her parents are ready to support her. Thus, considering the welfare of the children in the peculiar facts of the present case, we think that their custody should be with the mother, to which she would be entitled with the end of the academic year i.e. in the end of April 2003.
On maintenance
34. So far as the question of maintenance is concerned, the Family Court has awarded Rs. 500/- per month by way of permanent alimony and Rs. 100/- by way of maintenance under Section 125, Criminal Procedure Code in addition to Rs. 500/-. In the Family Court, during the trial of the petition, none of the parties made any efforts to place true picture of the financial position of the husband on record. The respondent-husband also did not care to disclose his monthly income to the Family Court obviously, with a view to suppress the income and deprive the respondent-wife of her right to claim sizeable amount of maintenance. In pursuance of the order of this Court, the respondent-husband filed his affidavit and disclosed his financial status and various financial transactions undertaken by him right from the year 1994. The contents of the affidavit read as under :
'I say that I have purchased Flat situated at Survey No. 21/1. Dahanakwadi, Pune by registered Agreement for Sale deed 3rd January, 1994. The said Flat was purchased for an amount of Rs. 1,33,000/-. For the purpose of the purchase of the said Flat, I have taken loan of Rs. 90,000/- from Rajashri Shahu Sahakari Bank by Mortgage Deed dated 5th May, 1994. I am annexing xerox copies of the said Agreement and Mortgage Deed at Exh. 'A' and 'B' hereto. The amount of Rs. 40,000/-is contributed by my mother.
By Agreement for Sale dated 16th June, 1997, the said flat was agreed to be sold for Rs. 3,00,000/-. Copy of the said Agreement is at Exhibit 'C' hereto. From the said sale proceeds, the Bank loan of Rs. 90,000/- was satisfied and the said Loan Account was closed on 17th June, 1997. I am enclosing copy of the Loan Account Statement at Exhibit 'D' hereto.
I say and submit that by registered Agreement for Sale dated 20th October, 1995, I purchased Godown /Shop admeasuring about 8.36 sq.mt. (110 sq.ft.) for Rs. 1,76,000/-. For the purchase of the said premises, I secured loan of Rs. 2,00,000/-. For furniture and premises, I mortgaged the said Shop with Rajashri Shahu Sahakari Bank Limited, Dhanakwadi, Pune on 1st December, 1995. Copy of the Agreement for Sale and Mortgage Deed is at Exhibit 'E' and 'F' hereto. The said Loan Account is closed on 31st December, 1997. Copy of the said Bank Statement is at Exhibit 'G' hereto.
I say and submit that the present residential premises has been purchased by me by registered Agreement for Sale on 7th October, 1977 for value of Rs. 8,00,000/-. For the payment of Rs. 8,00,000/-, the amount of Rs. 1,00,000/- was paid from sale proceeds of Flat at Dhanakwadi by cheque, balance of Rs. 7,00,000/-, I have procured loan for Rs. 5,00,000/- from Rupee Co-operative Bank Limited on 11th November, 1997 and the said Flat is mortgaged with the Bank, copy of Agreement of Sale and Mortgage Deed are at Exhibits 'H' and 'I' hereto.
I further submit that there are defaults in repayment of loans. At present, Rs. 4,06,094/- is the balance of loan, to be repaid, plus interest of Rs. l,13,962/-, total amounting to Rs. 5,20,056/- is due and payable by me towards the said loan. The said Bank has issued Notice under Section 101 of the Maharashtra Co-operative Societies Act, 1960 for recovery of Rs. 5,06,104/- as on 27th June, 2002. Copies of the Bank Statement and Notice are at Exhibit 'J' and 'K' hereto.
I say and submit that I had opened Cash Credit Account in Rupee Co-operative Bank Limited. Credit was of Rs. 1,50,000/-. In reference to Notice under Section 101 of M.C.S. Act, 1960, I had taken private loan of Rs. 1,50,000/- and deposited in the said Account. Copies of the said Notice and Bank Statement are at Exhibit 'L' and 'M' hereto. I say and submit that the Balance Sheets from the year 1998 to 31st March, 2002 would reveal the mode of payments of the instalments and the loans taken by me. Copies of these statements are at Exhibit 'N' colly.
He has also placed all documents on record to substantiate his transactions leading to sale and purchase of the immovable properties. He has also filed on record bank statements of his concern M/s Laxmi Garments maintained with Rupee Co-operative Bank Ltd. Branch at Pune. Perusal of statements of accounts do reveal heavy financial transactions on debit and credit sides running into lacs of rupees. The individual entries are ranging from Rs. 25,000/- right up to Rs. 3,00,000/- Most of the transactions reflected in the statement of accounts are in cash. The various sales of immovable properties cannot be accepted on the basis of considerations shown in the sale deeds. Normal tendency of seller and purchaser to undervalue property cannot be ignored. Under these circumstances one can safely conclude that the financial position of the respondent-husband is fairly and substantially good. His monthly net income based on business turnover available on record cannot be less than Rs. 25,000/-p.m. He ventured to contract second marriage the legality of which is not free from doubt. In these circumstances, considering the liability of maintenance of the children, which would be on the shoulders of wife, we think that it would be just and reasonable to grant monthly maintenance to the appellant-wife @ Rs. 4500/- (Rupees four thousand five hundred only) under Section 25 of the Act and Rs. 500/- per month under Section 125 of the Criminal Procedure Code. The respondent-husband shall pay these amounts on or before 10th of each month either by issuing Demand Draft, in favour of the appellant-wife or by remitting this amount by Money Order.
ORDER
In the result, appeal directed against the decree under Section 13(1)(ia) of the Hindu Marriage Act is dismissed for the reasons stated in the judgment. The decree of divorce granted by the Family Court is confirmed though for the different reasons.
So far as custody of minor children namely, Master Sidhant and Master Mangesh is concerned, the appellant- wife shall be entitled to their custody with the close of the current academic session i.e. with effect from 1st May 2003 and the respondent shall be entitled to access of children and may take them on each Sunday and may retain their custody from 9.30 a.m. to 5.30 p.m.
It is also declared that the appellant-wife shall be entitled for maintenance @ Rs. 4,500/- per month under Section 25 of the Hindu Marriage Act and at the rate of Rs. 500/- per month under Section 125 of the Criminal Procedure Code with effect from 1st January 2003.
The respondent-husband is directed to remit the amount of maintenance in advance either by depositing the amount in the Family Court, Pune or by remitting the amount to the appellant-wife by drawing Demand Draft or Pay Order in her favour; so as to get or reach her on or before 10th of each month. The impugned order of the Family Court accordingly stands modified in this behalf. Accordingly, appeal is partly allowed.
Appeal is disposed of with no order as to costs.
At this stage, learned Counsel appearing for the respondent requested for stay of the order directing maintenance. However, considering the facts and circumstances of the case and the financial status of the respondent/husband, we are not inclined to accept the prayer made. Accordingly, request is rejected.
C. C. Expedited.