D.J. Moharir, J.
1. The first of the two above-mentioned Appeals namely, FamilyCourt Appeal No. 37 of 1992 is filed by the original petitioner-husband whose petition was presented in the first instance to the City Civil Court at Bombay and thereafter transferred to the Family Court at Bombay,claiming in the first instance a decree of annulment of marriage with the respondent-wife and alternatively dissolution of marriage by a decree of divorce, which came to be rejected by the Family Court.
2. The second of these two Anneals being Family Court Appeal No.58 of 1992, also arising from the same judgment, however takes exception to the omission or failure on the part of the Family Court to consider the question of granting relief to the respondent-wife on the issue of appropriate and adequate maintenance, a direction for return of stridhan property as alsodirection in regard to the provisions for an adequate residence for her.
3. We shall be referring to the appellant and the respondent in boththese appeals by their original position as the petitioner and the respondent respectively.
4. The petitioner Ajay Jawaharlal Kakaria is the son of a CharteredAccountant Shri Jawaharlal Kakaria practising in Bombay and residing in theMahim locality of Bombay. The Kakaria family, it would appear, hails froma place called Bordi in Thane District. Dahanu is a Taluka in Thane DistrictIt is to Dahanu that the respondent Sandhya belongs. It is also quite apparentthat both these families are not only well-to-do but in fact affluent ones. The petitioner Ajay passed his B.Com. examination and continued his studies for becoming a Chartered Accountant so as to be part and parcel of his father's firm. In spite of several attempts he continued to fail in the final C.A examination. It was while he was still studying and appearing for the said C.A. examination, that his marriage was settled with the responded Sandhya sometime in February 1986. The marriage was actuary celebrated on 9th December 1986. In the interregnum Ajay and Sandhya had met several times and passed time together, happily. The marriage was celebrated with considerablepomp as it would also appear, it being the plea of the respondent Sandhyathat the expenditure incurred on the. marriage was considerable apart fromdowry and presents worth Rs. 4.00.000/- presented to Ajay-the bridegroom,by her parents.
5. After the marriage was celebrated at Dahanu, Ajay and Sandhyaproceeded to Ajay's family home at Bordi. At the material time the personsliving in the family house at Bordi were Ajay's grandfather one Mishrimalji,his uncle and also a brother, with their family members. On the very first nightof the marriage, the marriage could not be consummated, the explanation ofthe petitioner and the respondent being against each other. According to thepetitioner, he found the respondent quite cold, frigid and averse to sexualintercourse whereas the respondent-wife explained that it was on account ofthe husband's feeling of exhaustion and sickness that the consummation did notoccur that night. Even thereafter the consummation did not take place, whichis entirely undisputed and which fact of non-consummation is the foundation ofthe petitioner's claim for a decree of annulment of the marriage. Ajay andSandhya lived at Bordi till 14.1.1987 when they went to Sandhya's parentalhome at Dahanu for celebrating Makar Sankranth festival. There also anendeavour on the part of the petitioner to have the marriage consummatedresulted in a rebuff from her. The parties returned to Bordi and lived therefor a few months, the wife admittedly visiting the parental home at intervalsin this period. In April 1987 the petitioner along with Sandhya proceeded toBombay to prepare for his C.A. examination. Even at Bombay where theylived in the petitioner's father's house in Mahim, there was no sexual contactbetween them. After Ajay's C.A. examination was over, the couple proceededto Mahabaleshwar for their honeymoon with the intention of spending a weekthere. The stay at Mahabaleshwar, the privacy available, and even theatmosphere of a hill station did not prove to be of much help in consummationof the marriage. The trip intended to last for a week or so, came to be terminated in 3 or 4 days and the couple retuned to Bombay.
6. Thereafter, until 4th February, 1988 Ajay and Sandhya lived atMahim, Bombay on which date she left the marital home, as contended by her,virtually escaped from the marital home finding the main door of the flat ajarin the morning. She reached Mahim Police Station with an unkempt appearance, lodged complaint of ill-treatment of which she was subjected to by the husband and the mother-in-law, about the fact that 'the husband had not treated her as a wife' and thereafter proceeded to her parental home at Dahanu where she had been living ever since then. Though however, during the pendency of the present petition, on an application made by her to the Court she was permitted to reside in the flat at Mahim, Bombay, that being considered to be her matrimonial home since the petitioner-husband Ajay was residing there with his parents, the flat being of the ownership of the father.
7. According to the petitioner, the period of stay at Bordi afterthe marriage Sandhya had paid three visits to the parental home, unobjectedby anybody. After her return along with him to Bombay in March or April1987 also she had visited the parental home from time to time, though it isone of the contentions that such visits were as defiant as they were withouthis permission or that of his parents. The several grounds raised in thispetition are therefore in the first instance that the marriage required to beannulled by a decree for annulment on the ground that it had never come to be consummated until the date of presentation of this petition in October1988. The respondent-wife was blamed for the non-consummation by reasonof the coldness and frigidity from which she suffered and the total aversionwhich she showed for sex. In as much as this condition had persisted fromand since the date of the marriage, the petitioner was entitled to such a decree.Cruelty, under Section 13 of of the Hindu Marriage Act, 1956 is the secondground with the petitioner has raised for claiming dissolution of marriageby a decree of divorce, on several facts and circumstances which we will presently enumerate. The first and the most important one according to thepetitioner is the cruelty which was heaped upon him by reason of the wifechallenging his very potency and manliness. She had come to describe himand air her opinion more widely as being a person who was impotent.Though it was after the present proceedings were instituted, that sometimein April 1991 she had given an interview to a society magazine-'Savvy'. Theinterview as given by her, alleges the petitioner, was a reflection of the outburst of her allegation that according to her the petitioner-husband was asimpotent person. At any rate, if the petitioner had not been called as animpotent person directly enough, the crux of the facts and circumstancesstated by her very clearly amounted to describe him as such. That in itselfconstituted a ground of cruelty, mentally, to entitle him to a decree fordissolution of marriage.
8. The other grounds, facts and circumstances alleged, are in anentirely different sphere of conduct of the respondent-wife. The petitionenumerates as many as 20 more sets of facts and circumstances each of whichand cumulatively, all of which establish that the wife has been guilty of crueltytowards him and entitles him therefore to a decree for dissolution of themarriage. We may briefly state these: A complaint was made by the respondent to the police against the petitioner himself and his mother that she had been ill-treated by them; it was an entirely false one and amounted toharassment of the petitioner. The respondent used to indulge in criticisingthe petitioner's friends whenever they visited him and showed completereluctance in meeting and talking to them. The respondent also indulgedin accusing him of unfaithfulness towards her, in that she would charge,him with carrying on affairs with other girls. At the same time the respondent resented the petitioner's even casually talking to members of the fair sex. Whenever they went out for a stroll along the beach, he found her cold and keeping herself aloof instead of being close, hugging to him as a newly married couple ought to be or would be. Not only did the respondentcriticise his friends but in fact even objected to their visits altogether. Thevisits of these friends were unwelcome to her on the premise that they werepersons who used to indulge in taking non-vegetarian food. By reason ofhis pre-occupation with the work in his father's firm, there used to be occasions when the petitioner used to return home late. Whenever there was delay in returning home, she used to cast aspersions, hinting that he had been spending his evenings for purposes other than the office work. She used to prevent him from going to the library also and had also prevented him from going for his driving test, for obtaining a car driver's licence. Result of this obstruction was that he always remained without a car driver's licence. The petitioner used to take tea; to that also she objected. The visits to the parental home, as stated earlier, used to be without his permission and without informing the petitioner's parents also. She declined to serve food to the family members whenever they gathered at the dining table and she had otherwise also an apathy in attending to him and exhibited a want of s lightest concern for the husband. On one occasion she purchased a new dress for herself which did not however fit to her size and it had to be altered. The tailor to whom it was given brought it rather late, at about 10 p.m. Asking him to come at 10 p.m. was improper conduct on her part. On the way from their house to the beach there was a small pan shop. He found the respondent-wife smiling at the pan shay keeper and had to be chastised when he also found that the pan shop keeper responded to her smiles. This constituted conduct unbecoming of a wife. Earlier on an occasion while they were still to be married, and had gone for a stroll along the beach at Bordi, the police accosted them and suspecting some kind of an affair between them, took them to the police station where she created not only a scene but indulged even in making allegations against the petitioner himself. During their stay together at Bombay, between April 1987 and February 1988 when she left, he used to ring her up from the office at times. As soon as she would recognise his voice, she would bang the telephone shut. For days together she used to refrain from talking to the family members of the petitioner and for trifling used to abstain from taking food also. She thus expressed her unhappiness at having been married to the petitioner and used to cry aloud early in the morning much to the discomfiture of the other family members. Apart from not being helpful in the household work, being quarrelsome, she also kept pressurising the petitioner for shifting to Bordi for residence as according to her she was intolerant of life in Bombay. The interview given to the 'Savvy' magazine apart, she was also at the root of publication of defamatory articles against the petitioner and his family members in a daily 'Jansahi' published from Dahanu and also pamphlets which were distributed to the members of the co-operative housing society at Mahim. In fact the distribution of the pamphlets was extended to other residential locality. Upon these facts and circumstances, the petitioner therefore contended that the conduct of the wife was so cruel as to making living together difficult any more and therefore entitled him to a divorce.
9. The petition was resisted by the wife. According to her it wasshe who to her extreme surprise and total disappointment had come to beill-treated both by the petitioner-husband and his family members, in particularhis mother. It was entirely false to allege that she did not like Bombayor wanted him to shift to Bordi or to some other place in the countryside.In fact she had been educated in the Podar College at Bombay and hadobtained her degree of B.Com. from the University of Bombay. She wasprepared to live with the petitioner anywhere as he might choose. Shecategorically, denied that she was either cold or frigid or that it was at herinstance that the marriage had remained to be consummated. In fact, asshe submitted, in the first few days after the marriage the husband had keptconsistently complaining about some kind of weakness, some kind of illness,which prevented him from having sexual intercourse with her in spite of herendeavour, and in spite of the lead also which she attempted to take inconsummation of their marriage. Sympathising with his weak or ailingcondition in the initial period after the marriage, she had hoped that thingswould improve in future. She was aware of the fact that he had to preparefor his C.A. examination and did not want to come in his way and therefore also persevered to encourage him for concentrating on his studies but at the same time having proper privacy and enjoying life as a married couple ought to. However, the sexual intercourse never took place between them and the marriage remained unconsummated. According to the respondent-wife, this feeling of concern apart, she had reason to feel that there wereother reasons for which the petitioner-husband was deliberately keeping themarriage unconsummated; The main reason was that the petitioner expectedher parents to transfer in his name certain properties at Dahanu whichwas not done, the main difficulty in the matter being the involvement ofsuch properties in litigation in the family of the respondent. However, itwas quite clear that the petitioner was keen, as his mother was, on obtainingvery expensive presents and more amounts, apart from acquiring these properties in his name. The respondent herself also did not like these demandsmade by the petitioner and his mother in particular. This was apart fromthe fact that no property did stand in her name as such, and it was notproper on the part of the husband to be insistent on that demand. It wasfor the reason that the properties which he expected to get were not beingtransferred to him i.e. the petitioner, she did not and would in no case callhim impotent. All the same the truth was that the husband himself did notconsummate the marriage in spite of the opportunity, privacy and also theefforts on the part of the respondent-wife herself to prepare and arouse himfor consummation. As was only natural, she was herself keen that the marriage should be consummated. However, when even after the petitioner'sexamination was over in April 1987, even after their visit to Mahabaleshwarfor honeymoon, the marriage remained unconsummated, she felt concerned.It was only out of this concern, that she had then suggested to the husbandthat it would be advisable to consult a medical practitioner, it appears thatone Dr. Gita Iyer was known to them. The respondent had consulted her;and one her advice one Dr. Jatin Shah was also approached and he certifiedthat the petitioner was quite normal. When in spite of this the petitionerdid not himself consummate the marriage, it was only idle for him to allegethat it was the respondent-wife who was cold or frigid or had total aversionfor sexual intercource. The petitioner was in the circumstances, not entitledat all to the decree for annulment of the marriage as he has sought.
10. Nor would the petitioner be entitled to decree for dissolutionof marriage on the ground of cruelty practised by her. There was none. Ifat all, it was cruelty which was heaped on her, in the first instance, by thehusband - refusing to consummate the marriage and perform his conjugalduties which-it was only natural for her to expect, he ought to. Each ofthese 20 or more instances which constituted, according to the petitioner,acts of cruelty towards him, were denied as false, flimsy, contrived andimaginery.
11. She submitted that the petition therefore deserved to be dismissed.
12. After the petition was presented, the matter was first referredto the marriage counsellors. Their efforts however proved to be fruitlessand a report was accordingly made. The matter came up before the learnedJudge and as we find from his judgment, he himself endeavoured to reconcilethe parties to a union and resumption of the marital tie. It was onlywhen he found himself also unable to bring about any reconciliation betweenthe parties, that the petition proceeded further.
13. During the pendency of the petition certain facts and circumstancesand events of significance which occurred need to be noted. As isnot disputed, the respondent-wife left Bombay to return to the, parental home at Dahanu after lodging complaint against the petitioner and his mother at Mahim Police Station on 4.2.88. She had thereafter lived at Dahanu. On 18.4.90 however she made an application to the Family Court for permission to enter the matrimonial home i.e. the flat at Mahim where the petitioner-husband resides. The application was opposed by the petitioner-husband. An order directing the petitioner-husband and his family members not to obstruct or resist the respondent-wife in entering and living in the said flat came to be passed on 18.4.90. The respondent-wife alleged that on thestrength of this order she had gone and sought access to the flat but was deniedthe same. The flat was kept locked and therefore she again made acomplaint to the Court that the order dated 18-4.90 was being disobeyedby the petitioner. A notice to show cause was directed to be issued to thepetitioner. It appears that in the meanwhile, the respondent managed to geta duplicate key for lock of the front door prepared and entered the flat;in respect of which entry the petitioner made, a grievance. It further appears thatthe petitioner challenged the order dated 18.4.90 in the High Court and the orderdated 18.4.90 was stayed by the High Court and therefore the grievance ofthe petitioner was that in spite of passing of this order as also communcationthereof to the respondent-wife, she had entered the flat. Therefore sheneeded to be directed to remove herself from these aid flat. The Civil Application(No. 2339/90) in this behalf in Petitioner's Writ Petition No. 1806 of 1990came to be disposed of during the summer vacation. Thereafter the petitionermade an application to the Court that his earlier application for mandatoryinjunction against the respondent-wife to prevent her from enteringthe flat at Mahim and thereby making a nuisance of herself andcreating trouble for the family members of the petitioner was concernedneeded to be expeditiously decided, as directed by the High Court duringthe hearing of Civil Application No. 2198 of 1990 and the order dated9.8.1990. However, the High Court also directed that on the disposal ofthis application the respondent-wife would be permitted to occupy and livein the flat. The petitioner then filed an application dated 13.9.90 for aninjunction against the respondent-wife contending that the respondent-wifehad been herself preventing him and his family members from entering theflat. An ad-interim injunction restraining the respondent-wife was accordingly granted. Thereafter also the grievance of one spouse against the other appeared to have continued until the decision of the petition by the High Court.
14. In her written statement, the respondent-wife apart fromchallenging the claim of entitlement of either a decree for annulment of themarriage or decree for dissolution of the marriage, also made claim for (1)maintenance for herself; (2) the return of her stridhan property which according to her was being consistently refused to be handed over to her by the husband and the in-laws and (3) provision for adequate residence for her by the petitioner-husband.
15. On these pleadings Family Court framed issues. The first issuewas whether the petitioner-husband proved that the marriage had not cometo be consummated owing to the relative impotency of the respondent-wifei.e. on account of her coldness, frigidity or aversion for sexual intercoursewith the husband. The second material issue was whether the petitionerproved that the respondent-wife had, since the solemnisation of the marriagetreated him with cruelty. Both these issues were, upon consideration of theevidences adduced, answer in the negative and the petition came to be dismissed.
16. Hence this Appeal by the petitioner. The respondent-wife hasfiled Family Court Appeal No. 58 of 1992 contending that adequate maintenance as sought by her had not been granted though, of course, an order for interim maintenance of Rs. 1000/- had come to be made and had been finalized only at Rs. 1500/- per month, which according to the respondent-wife, having regard to the financial status and the affluence which the petitioner enjoys, was entirely inadequate. Her grievance is that the question of return of what constituted her stridhan property has also not been dealt with by the Family Court and thirdly that the question of her entitlement to an appropriate and separately enjoyable residence has also not come to be dealt with by the Family Court.
17. We have heard learned Counsel Shri Khandeparkar for thepetitioner on the plea of entitlement to decree of annulment of the marriage,on the ground that the wife, since the date of marriage, was cold, frigid andtherefore relatively impotent towards him; that has resulted in the non-consummation of marriage in spite of his efforts in that behalf. The evidence in this behalf would of course have to be found primarily confined to the versions of the respective petitioner-husband and respondent-wife though it will also be found that the testimony of the petitioner's parents as also the respondent's father and other witnesses does make a significant impact in the totality of the assessment of the evidence on this issue.
18. The petitioner's evidence is that after the marriage he and therespondent-wife lived together at Bordi for a period of about 3 months wherein spate of his efforts, she refused to have sexual intercourse. Conistentlywith his allegations, he stated that on the first night after the marriage andeven thereafter, the wife had just refused to give him marital pleasure, explaining that she was not interested in sexual intercourse and that she didnot like him. The total apathy on her part to join him in consummationof the marriage, constituted a coldness and frigidity from which she sufferedas he asserted and as is the argument which is advanced by the learned Counselbefore us.
19. The first question which therefore arises is whether the coldnessand frigidity on the part of the respondent-wife of which the petitioner-husband could be a matter to be determined and concluded solely on his own word when the respondent-wife's evidence is entirely to the contrary.
20. When it is suggested that the respondent-wife was cold and frigid,an inquiry which we made from the learned Counsel was whether in thecircumstances any effort had been made for getting the wife herself medicallyexamined to determine the fact of her coldness and frigidity; nothing hasbeen suggested in this behalf and nothing has been brought out also in theevidence which came to be recorded at the trial. We are informed that noeffort was made in this behalf to obtain medical opinion as to the mentalframe of the respondent-wife, about her aversion to sex and the resultantnon-consummation of the marriage. Whether or not, the respondent-wifehas been, as alleged, cold and frigid, is according to us a matter to be considered from the time of their association after the betrothal. It is not in dispute that after the marriage was settled in February 1986, the petitionerand the respondent had been having meetings and used to be together severaltimes. The petitioner has himself produced and relied upon the articlepublished in the 'Savvy' issue of April 1991 in which some photographs ofthe association between the petitioner and the respondent-wife appearedindicating their togetherness and intimacy. Upon these it would be reasonableto infer the responsive attitude and eagerness of the respondent-wifefor the ultimate-the consummation upon being married. We refer to this in the context of the respondent-wife's assertion that it was she who took the lead in encouraging the petitioner-husband to have sexual intercourse with her. Therefore in the absence of any other evidence, it would be difficult for us to accept the cold and frigid condition of her mind, apathetic to sexual intercourse and therefore resulting, at her instance, in the non-consummation of the marriage. That the petitioner-husband himself declined to have sexual intercourse with her is what is insisted upon by the respondent-wife, as can be seen from her deposition. Relevant therefore is the evidence in regard to any representation made by either of the parties to their relativesor close ones in this behalf. The mother of the petitioner, Smt. Bhanumati (PW-1) has stated that her son, the petitioner and the respondent-wife used to sleep together in the bed-room. If the disinclination on the part of the respondent-wife, her aversion to sex was the cause of non-consummation of the marriage, we would expect this fact to be voiced by the petitionerwith someone at some point of time after the marriage. However, Bhanumati admits, contrary to the assertion of the petitioner-husband, that her son the petitioner had never complained to her that the respondent was refusing to have sex with him. Similarly, the father Jawaharlal Kakaria, when examinedon this point, has stated in his very examination-in-chief that it was the respondent-wife who had opened out her mind to complain to him that the marriage had not till then come to be consummated at all. Of course, he hastened to say that he did not know at whose instance the marriage was not consummated. That even as saving grace, does in our opinion, provide no support to the petitioner-husband's that the non-consummation was the resultof the respondent-wife's relative impotency. On the other hand, the assertion on the part of the respondent-wife that it was the petitioner-husband who was staying away from having sexual intercourse with her; finds considerable support from the zerox copies of the letters which she had written to her father,to her mother and sister-in-law. She deposed that she had later on personally also spoken to the father about the refusal on the part of the husband to have sexual intercourse with her and the father Sukhraj Bafna has corroborated her on this part. In her letter dated 30th May 1987 she informs her fatherthat all that happens when see speaks to the husband about sexual intercourse is a retaliatory threat that if. she was to speak on the question of sex, hewould see that her life is destroyed. In a letter dt. 23.8.87 she informs her father that the husband plainly tells her that he has not approvedof her and that he has married her only as a matter of anaffrontto her. She mentions the fact of having met Dr. Gita lyar andinforming her that the husband had no sexual intercourse with her.Another letter which she had written in September 1987 to her sister-in-law also refers to the refusal on the part of the husband to have sexual intercourse and in each of these letters, it needs to be noticed that the respondent-wife assured that she would still be persevering. She would keep encouraging the petitioner-husband and eventually succeed in having sexual intercourse and thus consummating the marriage.
21. During the cross-examination of the respondent-wife, suggestions were of course made to her that it was she who was refusing to consummatethe marriage by having sexual intercourse with the husband, in spite of his efforts. She categorically denied that she was either cold or frigid. LearnedCounsel Shri Khandeparkar submitted that in her examination-in-chief, the respondent-wife had actually given no indication of having had any physical closeness with the husband at any time.He pointed out to her statement that thoughshe deposed that on the first night of the marriage as also on the next night, thepetitioner-husband did not have sex with her, explaining that he did not havethe desire and was indisposed, she also stated that the petitioner had stoppedhis relations with her after his examination in May 1987 and that he did noteven have any foreplay at night. Shri Khandeparkar therefore submits that it is only during the course of cross-examination that she comes to admit that thepetitioner-husband used to remove his clothes when sleeping with her on thesame bed; that there used to be cuddling and kissing and that this also led tothe erection of his male organ. She however asserted that in spite of this erection, the petitioner would not have any sexual intercourse with her.
22. The argument advanced is that if there was thus no doubt aboutthe petitioner's manhood and the marriage yet remained unconsummated, thenit can only be attributable to the respondent's frigidity, her aversion to sex. Aswe have noted the respondent's grievance is not about want of potency in herhuband but his refusal to have sex with her. It is not inconceivable, thoughShri Khandeparkar so argues, that the petitioner is able to perform the sexualact he yet desists from it for his own reasons; that he defies the urge inspite ofthe privacy and opportunity. We would therefore appropriately refer to theevidence of the respondent-wife's father that she had said to him that thepetitioner had not been keeping physical relations with her and that this wasfor the reason that her property had been transferred to his name. BansilalKothari is a person of common acquaintance to both the parties. It wassuggested to him that the respondent-wife's father had told him that the petitioner was an impotent person. However, what Bansilal asserts is a differentcommunication to him by the respondent Sandhya's father that Sandhya hadtold him that the petitioner-husband was not having physical relations with herIn the absence of any other evidence, the bare words of the petitioner-husbandthat the wife was cold or frigid towards him or displayed a total aversion forsexual intercourse or that this aversion resulted in the marriage remaining unconsummated, cannot therefore be accepted. The relative impotency of the wife as a cause for non-consummation of the marriage and the non-consummation as a ground for annulment of the marriage cannot therefore be found available to the petitioner-husband. The learned Judge of the Trial Court was right, in our opinion, in holding that the petitioner was not entitled to a decree for annulment.
23. Coming to the next ground, namely, of cruelty on the part of therespondent-wife and such a cruelty furnishing the basis for dissolution of themarriage by a decree for divorce, we would consider the ground of the wife'salleged charge of impotency of the husband but before that we wish to considerthe several other allegations of facts which are made as the ground of crueltytowards him. The petitioner's grievance was that the respondent-wife indulged in criticising his friends whenever they visited him and in fact showed acomplete reluctance in meeting and talking to them. The only support the petitioner-husband would appear to derive in this connection is the statement of his father Jawaharlal that the respondent did not like the husband's friends visiting their house. We note with some interest that in the list of witnesses dated 30.3.90 which the petitioner furnished to the Court before the commencement of trial, one Ravi Teneja has been cited as a friend. It is equally interesting tonote that eventually this person was not called to the witness box and examinedas a witness to prove that he had visited the petitione's house or had found himself unwelcome to the respondent. Whenever they used to go for a walk alongthe beach, the petitioner says that the respondent-wife used to keep quiet andaloof from him which was also an indication of her disinclination to be close to him and denied to him the pleasure of her company. We can only call this a sentimental allegation, not accompanied by any independent and reliable evidence. An allegation was also made in the petition that the respondent-wife objected to the visits of the petitioner's friends on the ground that they all indulged intaking non-vegetarian food when obviously she is a devout Jain and hence avegetarian. In respect of this allegation also, there is no evidence. In fact wefind that no reference to this allegation was made even in the examination-in-chief of the petitioner. Casting aspersions in the event of the petitioner returninghome late, is another allegation made against the respondent-wife whichagain has been denied. The reference impliedly is to the fact that the petitionerwas spending time in having affairs with some other girls and was thereforereturning home late. According to learned Counsel Shri Khandeparkar, thewritten statement of the respondent itself gives an indication in para 10 whereshe alleged that the petitioner had some affairs with some other girl and hencethe petitioner did not like the respondent. Obviously this has a reference onlyto the period prior to the marriage and it is nowhere suggested that thepetitioner was alleged to be returning home late, by reason of his indulgence inhaving such affairs with any other women or girls. The allegation of preventingthe petitioner from going to the library is, according to us, a merely asinineone. A reference to a letter written by the respondent even prior to theirmarriage, on the 27th May 1986 would, in our opinion, be actually indicative of the degree of concern which she had for his well being, progress andupliftment in life. This letter shows that even before they were married, shehad started addressing him as a revered and dear husband. She refers to herselfas a person who would be with him in every moment of life- of happiness aswell grief and sorrow. In this letter she has very clearly mentioned that heshould take care of his health as also his studies. We are not therefore satisfiedthe petitioner was in any way prevented by the respondent-wife or that shecould even think of becoming an obstruction in the matter of his studies.Similarly, allegations about her demand that he should give up drinking tea;the grievance that she did not help in serving food at the dining table or thatshe called a tailor to deliver her newly purchased dress, after alterations, at latehour in the evening; that she indulged in obstructing him from going for thecar driver's test; that she used to bang the telephone whenever he ranged up,that she used to stop talking to the family members and occasionally refusedto take food also are instances of disagreements which even if accepted, in ouropinion, are mere trivialities. These cannot constitute such grave conduct onher part as would render their living together difficult if not impossible.Another allegation of the husband is that she used to smile at some pan shopkeeper whose stall is on the way to the beach from their Mahim residence andthat he found the pan shop keeper also responsive to her. The allegation is,in our opinion, merely expressive of the petitioner himself being an entirelydistrustful husband. The petitioner also complained about the scene createdby her at the police station when the police hauled them, from the sea beach onsuspicion of there being some affair. This would be entirely irrelevant. Thepetitioner himself admitted that this was an incident which took place prior totheir marriage. The cruelty also consisted, according to the petitioner, in therespondent-wife's unprepared ness to live with him at Bombay and possibly herinsistence that the husband leave Bombay and shift to some other place in thecountryside for residence. Neither the petitioner's father nor his mother, whenexamined as witnesses, gave any indication of the respondent expressing herdissatisfaction on being confined to Bombay. As the learned Judge of the TrialCourt has observed, the respondent was educated in the Podar College ofBombay and, passed her B.Com. examination from that college and obviously was accustomed to Bombay life. The respondent has herself denied that this was her desire and has also further asserted that she was always prepared toleave anywhere at any place where the petitioner-husband would like to settle down.
24. An attempt was made to prove her dislike for Bombay in the letterdated 27.5.1986. The specific expression used in this letter is that she completely lost her faith in Bombay. Using this sentence as evidence amounts to picking itup entirely out of context as the learned Judge has also considered It appears that this opinion was expressed by her in the context of a certain incident whichhad been described to her by the petitioner-husband while they used to be together. This is also an incident which is much prior to their marriage which wascelebrated on 9th December 1986. All these instances, do not, at all in our opinion, constitute cruelty in the first instance, much less do they constitute instances of a conduct which is so reprehensible and so continuous as to renderthe possibility of a cohabitation entirely difficult and inconceivable any more forthe husband.
25. The gravest of the charges amounting to such cruelty as would notbe possible to put up with is of the impotency of the petitioner-husband. According to Shri Khandeparkar, the petitioner-husband has himself stated thatthe respondent called him au impotent person, that she had spoken of him asan impotent person with her sister Sharmila, that she had spoken of him assuch to his parents also. She had given publicity to his being an impotentperson, amongst her own relatives also. She had gone much further and demonstrated this vicious charge by giving an interview to the Savvy magazine inwhich, it is asserted, she called him an impotent person. It is to this aspect of thecharge that we are called upon to attend and to uphold the same also There can be no doubt that calling one's husband an impotent person, lacking inmanliness and unable to consummate the marriage, which is a most essential feature of a conjugal life would indeed be a serious allegation. The wild andbaseless allegation of lack of manliness and impotency of the husband made without any evidence in support, would constitute cruelty as was held by alearned Single Judge of this Court in Smt. Nirmala Manohar Jagesha V.Manohar Shivram Jagesha, : AIR1991Bom259 . The learned Judge was called upon to consider whether in view of the allegation of impotency and lackof manliness which had come to be made by the wife in the written statement which she had filed in the husband's petition for divorce, constituted a kind ofcruelty. After considering a very large number of authorities including the fullbench decision of this Court in : AIR1984Bom413 , it was held that not merely alleging but repeating in the written statement that the husband was animpotent person, lacking in manliness or potency was an act of cruelty by thewife. The wife had stated that she felt and strongly apprehended that the husband was impotent and unable to consummate the marriage and that this 'wantof manliness' in the husband necessarily conveyed, as a fact, his impotency She reasserted the same charge in a latter paragraph in the written statement and tothe effect that the husband's manliness and potency was in dispute and therefore in order to shield the drawback on the part of the husband the petitionhad come to be preferred falsely; it required dismissal with cost What constituted cruelty was the question which therefore came to be considered by thelearned Single Judge with reference to the decision in Dr. Keshaorao Krishnaji Londhe v. Mrs. Nisha Londhe, : AIR1984Bom413 . The full Bench held:
'What is cruelty simpliciter It is not possible to comprehend the human conductand behaviour for all time to come and to judge it in isolation A priori definition of cruelty is thus not possible and that explains the general legislativepolicy-with sole exception of the Dissolution of the Muslim Marriage Act-toavoid such definition and leave it to the Courts to interpret, analyse and definewhat would constitute cruelty in a given case depending upon many factorssuch as social status, background, customs, traditions, caste and community,upbringing, public opinion prevailing in the locality etc. Such cruelty that thepetitioner cannot reasonably be expected to live with the respondent. Thebroad test, applied in interpreting Section 13(1)(ia) has to be whether thecruelty is of such type that the petitioner cannot reasonably be expected to livewith the respondent or living together of the spouses had become incompatible.'
The learned Judge with reference to this aspect observed that the allegation that the petitioner-husband being cold and an impotent person, lacking inmanliness, though made only in the written statement, did constitute a chargeso grave as to consider any further cohabitation with the wife impossible. Therefore the opinion expressed was that the husband would be entitled to a decree for divorce on the ground of cruelty which was result of the wife making wild, reckless and baseless allegation against him in the written statement.
26. In the present case, therefore, what has to be considered is whetherin fact the petitioner was called an impotent person in the first instance, whetherat any stage prior to the institution of the proceeding or thereafter. Ourattention has been brought to focus mainly upon the interview which therespondent-wife gave to the Savvy magazine in April 1991. We have carefullygone through the entire article which is lengthy no doubt, exhaustive in details,commencing with the manner in which the respondent-wife was brought up inthe parental home during her childhood, adolescence and till the time of hermarriage, and how things proceeded after she was engaged, married and cameto live with the petitioner-husband at Bombay. At no place, as she asserted inher deposition, do we find that the petitioner is stamped by her as an impotentperson. The evidence has to be considered, according to us, in three distinctphases after the marriage. The first is the period immediately after the marriageupto 14.1.1987 when the petitioner and the respondent visited her parentalhome at Dahanu for celebrating Makar Sankranth festival. The second is theperiod after their return from Dahanu to Bombay and the petitioner-husbandleft for Bombay along with her, to be able to appear at the C.A. examinationin April 1987. The third period is the period after the examinations were overand upto the time the respondent left home, under compulsion and only as aresult of the ill-treatment to which, as she asserted, she was subjected to.
27. After the marriage the petitioner was unable to perform the sexualacts, inspite of her eagerness as she says She explains that the petitioner toldher that he did not have either the feeling for sexual intercourse and was suffering from some kind of a weakness. The respondent says that in the circumstances she was understanding enough and hoped that things would improve aftersometime. However, even thereafter when the couple went to Dahanu on14.1.1987 for Makar Sankranth; the sexual intercourse had not taken place andthe marriage had remained unconsummated. This was also explained by thehusband as not possible on account of his feeling of illness or weakness whichalso she tolerated.
28. At the time of Makar Sankranth festival, the respondent states thatthe petitioner-husband opened with her father the topic of transferring someproperties in his name and which proposal her father was not m a position toaccept. This is duly corroborated by her father, Sukhraj Bafna; he states thatthe property to which the petitioner referred were actually involved in some litigation in the family. It was this reply from the father which she says infuriated the petitioner-husband. The petitioner's return to Bordi was therefore ina state of disappointment and anger towards her for which reason the petitionerdid not have sexual intercourse with her though it is also not in dispute thatthey had however kept sleeping together on the same bed in one room in thespacious bungalow at Bordi. At the advances made thereafter, during their stayat Bordi, the respondent says that the petitioner very clearly repelled all suchendeavours, asking her not to consider sex any more. The petitioner as shesays, even threatened her that if she were to speak about their sexual intimacyany more, he would in fact ruin her life. No doubt the petitioner her categorically stated that the respondent-wife used to allege that he was impotent andthis allegation therefore caused mental torture and anguish to him. We havebeen referred to the evidence of the petitioner's parents and have alsogone through it. Amongst the two it is Jawaharlal, father of the petitioner whomakes a reference to sexual relations between the petitioner and the respondentafter marriage. But that as we have observed is only to the extent that therespondent told him that the marriage was not consummated. Of Course it isat the stage of the cross-examination that the father comes out a little moredefiantly to say that the respondent-wife had called Ajay an important person.
29. Here it may be noted that Ajay himself does not say that therespondent had ever said so to him in the presence of Jawaharlal. An interestin the son's litigation is thus exhibited by the father when after having admittedthat the respondent-wife had only spoken of the absence of sexual relationsbetween them that he now says that she accused the husband of being animpotent person. On the premise of the obvious interest we do not find ourselves prepared to act on this part of Jawaharlal's cross-examination. We have already observed that apart from mentioning the name of the respondent's sister Sharmila, there is no other person to whom an allegation of the petitioner'simpotency was ever made by her and Sharmila has not been examined asa witness. Then so far as the publication of the petitioner's impotency in thenewspaper 'Jansahi' of Dahanu is concerned, Shri Khandeparkar concedes thatthe concerned newspaper has not even been produced. A reference is also madeto the publication of certain pamphlets which were distributed in the co-operative society. The publication went under the signature of one Mrs. AshaTelang, presumably a social worker attached to some women's welfare organisation and concerned with the marital disputes and the consequences. That therespondent-wife was in any way responsible for the publication or the distribution of these pamphlets has nowhere been brought out. A perusal of these pamphlets will also show that there is no reference in the pamphlets, even remotely, to the impotency of the petitioner-husband. Upon consideration ofwhat has been given out by way of an interview in the 'Savvy' magazine, uponthe evidence of the petitioner-husband himself and his parents and then therefuting at the instance of the respondent-wife corroborated by her father, weare of the opinion that a charge of impotency as such never came to be madeby the respondent-wife. When the respondent-wife herself very clearly statesthat after the marriage they used to sleep together and that there used to bekissing, cuddling and even a foreplay between them, there is no manner ofdoubt left that she did not actually charge the petitioner-husband with impotency orwant of manliness in him. What we are led to conclude is that theabsence of any sexual intercourse between the petitioner and the respondentwas the result of a deliberate abstention on the part of the husband in consummating the marriage.
30. This abstinence appears to be wilful and in our opinion also traceableto a different cause altogether. The respondent's evidence is that therefusal to have an intercourse was on the part of the petitioner, in spite of herendeavours in that direction. It was because the petitioner-husband came torealise that the in-laws would not be giving him any property at Dahanu. It istherefore that as a matter of vicious retaliation that the petitioner would appearto have kept her deprived of the marital happiness which as a wife she wasentitled to receive from the petitioner-husband. It therefore takes the case farfar away from the allegation that the petitioner was styled by the respondent-wife as being an impotent person at any time. Further, we also note that it is anundisputed fact that it was the suggestion-the petitioner-husband calls it acase of her insistence -from the respondent-wife, that since sexual intercoursebetween the two was not taking place, the petitioner-husband should get himself examined by some doctor. What is also important to note that the petitioner though claiming himself to be fully potent and capable of consummating the marriage, however, acceded to this suggestion-or insistence as he calls it,and was therefore medically examined. A wife who is herself cold or frigid, hasan aversion for sexual intercourse, in our opinion, would not bother aboutasking the husband to go in for a medical examination unless she was keenon the sexual intercourse being performed. The desire to have sexual intercourse was therefore uppermost in the mind of the respondent-wife and itwas with that object in view that she called upon the husband so that amedical examination would suggest ways and means of going further beyondtha step of erection of the male organ; i.e. sexual intercourse. Therefore, weare hot satisfied with the petitioner's case that the respondent-wife alleged thathe was an impotent person.
31. It is also urged by learned Counsel Shri Khandeparkar that apartfrom the alleged accusation of the petitioner's impotency the respondent-wifemade yet another allegation against him quite incongruently and inconsistentlywith the charge of impotency that he had been going about with girls andhaving affairs with them. However, for the purpose of the present case it shouldbe noted that no allegation of his being involved with any other girl or womanafter the marriage was performed, has been made out. The reference which onefinds in the written statement is of a Sindhi girl by name Darshana and thatwas before the marriage was performed. The respondent-wife's deposition indicates that some utterances in regard to the friendship or intimacy with a girl of that name had perhaps escaped the petitioner's own mouth and it was therefore that the respondent-wife, apparently during some quarrels sometime, may have referred to his refusal to have sexual intercourse with her on account ofhis having some affair with a girl of that name, coupled with the fact that thepetitioner had married with an eye only on the property to be obtained fromhis in-laws. Therefore, we find no substance in the allegation. At any rate wefeel that the petitioner, has not amended his pleadings to incorporate this as aground and instance of cruelty to him. The amendment of pleadings in thatbehalf, would have given the respondent-wife an opportunity of meeting theallegation that she had been guilty of cruelty to him by making a charge of hisinvolvement with other girls. Shri Khandeparkar, learned Counsel for thepetitioner, has also argued that involving the petitioner himself, his parents,brothers and even his old grand-father into criminal litigation is by itself acase of subjecting him to cruelty by mental torture and harassment. As we findfrom the record, the first ever complaint which came to be made by the respondent-wife was dated 4.2.88 at the Mahim Police Station, a zerox copy whereof has been produced on record by the petitioner himself. The complaint made there was about the harassment to which she was being subjected andabout the fact that the husband was not treating her as a wife. The specificwords are:
X X X X
(emphasis provided)
If properly construed these would mean, according to us, that the petitioner-husband had not been consummating the marriage and performing his conjugal obligations towards the respondent as his legally wedded wife. That is an asidebut it is from this point of time onwards that the litigation in the form ofcomplaints made by one spouse against the other or by one spouse against therelatives of the other spouse and vice-versa appear to have started. So far asthe criminal complaints and proceedings which the respondent-wife has instituted are concerned, each of this has been styled by the petitioner-husband as being false. It needs to be noted that most of these proceedings as were started, were pending on the date of the filing of the present petition by the petitioner. The ones which have come to be instituted subsequently are also pending and itwould not therefore be acceptable a contention that the respondent has involved the petitioner into false charges. On the other hand, as we appreciate that after the respondent-wife left for the parental home at Dahanu on 4.2.88. her return to the marital home, to which she would be entitled to return, was itself objected. It was therefore that during the pendency of the proceedings she was required to make an application to the Court for an injunction to restrain the husband and the other family members from preventing her from entering and occupying the flat at Mahim. An order was accordingly passed after taking into consideration the reply given by the petitioner-husband. The record shows that when in pursuance of the order or armed with such an order the respondent-wife went to the marital home for seeking access to it, she found the door shutand locked. She was therefore required to make a fresh application, reportingto the Court that the order dated 18.4.90 by which she was permitted toenter the flat came to be disobeyed. It is true that before this application wasdecided as such, the respondent-wife appears to have, on the bass of the rightgiven to her by the order dated 18.4.90, got a duplicate key prepared to theflat and had thereafter gained access to the flat. This circumstance, unfortunately, only added to the tension between the parties and the trading of charges one way and the other. As such, the subsequent events do not, in our opinion, impinge upon the proof of cruelty which is required to be given by the petitioner-husbandfor entitlement to a divorce under Section 13(1). On the otherhand, the Course of events as have taken place, ever since the marriage wascelebrated on 9.12.86 and more particularly after the Makar Sankranthfestival on 14.1.87, lead us to think that the respondent-wife had in fact beenharassed only for the purpose of squeezing the properties from her parents. Itwas therefore actually the respondent-wife who in the totality would appear tohave been subjected to cruelty by the petitioner-husband and the inlaws, themother-in-law in particular. We wish to make note that in one of the letterswhich she has written to her parents, the respondent-wife does appear to have,at least at that point of time in the year 1987, described the father-in-law as asomewhat docile person and that he appeared to side with her to a certainextent since he was frustrated that the petitioner-son who had been repeatedlyfailing to qualify at the C.A. examination and was almost given up as a lostcause-education wise. Upon consideration of all these facts and circumstances,we hold that the conclusion of the learned Judge of the trial Court on the issueof cruelty entitling the petitioner-husband to a decree for dissolution ofmarriage was entirely right and that issue was correctly answered in the negative. The petitioner's alternative ground for claiming dissolution of the marriage on account of cruelty must be held as not available to him. In that view of the matter, we have no hesitation in holding that the present appeal of thepetitioner-husband deserves to be dismissed.
32. Coming to the respondent-wife's Appeal No. 58 of 1992, thegrievance which she has made is that several of her applications for the grantof a permanent alimony, for the return of her stridhan and lastly her entitlement to be provided with reasonable residential accommodation at Bombay have not come to be considered by the Court.
33. Out of these three prayers which she made, the prayer for maintenancehas, of Course, been granted during the pendency of the petition. Theinterim maintenance allowance was fixed at Rs. 1000/- per month and at theconclusion of the petition, it was raised to Rs. 1500/- per month. The respondent-wife has contended that so far as the issue of stridhan was concerned, theTrial Court has obviously failed to apply its mind to the same. No issue in thisbehalf was framed. The provisions of Section 7 of the Family Courts Act giveample powers to the Family Court in that behalf. Therefore it was not onlyopen but in view of the specific contentions advanced, the duty of the TrialCourt, to deal with this aspect of the controversy between the parties. Therespondent-wife's gold ornaments and other presents together worth aboutRs. 4,00,000/- which as she claimed, are in the matrimonial home and whichshe demanded to be placed in her own custody, were refused to be so delivered.She asserts that the petitioner and the father and parents in-law in particulardid not want to part with them though this constituted her stridhan property.
34. What exactly was the extent these items of properties whichconstituted her stridhan, does not appear to have been a question which wasdealt with by the trial Court.
35. Our perusal of the record shows that the respondent-wife madeseveral applications in this behalf and the stand which the petitioner-husbandappears to have taken, varies from denial of any ornaments and presentshaving been given to her and brought by her to the marital home to raisingthe contention that everything that she might claim as being her stridhan property had been carried away by her with her when she left the marital home on 5.2.88 or thereabout.
36. We do think that the question as to what was her stridhan propertywhich was kept in the marital home and her entitlement to the custodythereof was a matter of concern between the parties which necessarily requiredto be resolved by adjudication. The respondent had also filed a list of the ornaments, presents and cash which was there in the marital home.
37. The discussion in the judgment, as we find, has remained confinedonly to the question of the maintenance. The learned Judge has dealt with thisaspect in paragraph 51 of his judgment and observed that the respondent-wifewho was being paid Rs. 1000/- per month by way of interim alimony claimedan amount of Rs. 10,000/- per month by way of maintenance and that thisprayer was resisted. He has also observed that the petitioner had contendedthat the respondent had her own source of income and was therefore notentitled to claim alimony, It was also observed by the learned Judge that therespondent appears to have immovable property with a godown structure butthere was nothing on the record to show whether she was getting any income out of that godown property. The respondent was not admittedly, alleged tobe earning by herself.
38 We also refer to the fact of admission made by the petitioner thathe was earning Rs. 40,000/- annually only by way of interest on the savings,deposits etc., and an allowance of Rs. 750/- per month from his father for theassistance rendered in the firm of the Chartered Accountant. We however findthat on record the respondent-wife has produced a large number of documentsincluding a list at exhibit 40 which mentions the several shares and debentureswhich the petitioner-husband holds in other firms etc. As per exhibit 25 she alsofiled a list of properties in which as a member of the joint Hindu family he hasan interest and share. All these documents do not appear to us to have beenduly considered before dealing with the question of appropriate or adequateamount of maintenance which the respondent-wife would in the circumstancesbe entitled to. We also find, as stated above, that the question of what constituted and what is the extent of the stridhan of the respondent-wife has not at all been considered by the trial Court for the purpose of granting relief as prayed for by her.
39. In that view of the matter, so far as the present appeal of therespondent-wife is concerned, we are of the opinion that the matter wouldnecessarily require to be gone into in detail, by giving to the parties an opportunity to establish their respective contentions in this behalf i.e., on the question of stridhanas also the amount of maintenance to be granted to the respondent-wife.
40. So far as the respondent-wife's prayer for adequate and reasonableresidential accommodation is concerned, she has been permitted to occupy oneroom in the flat at Mahim. The petitioner-husband, after an order in herfavour, made an application for mandatory injunction to direct the respondent-wife to remove herself from the said Flat. That application, it is not disputed,was rejected by the Trial Court. We are also aware that at the time of hearingof the application of the respondent-wife for grant of residential accommodation, the matter was heard, some proposal for providing her with an alternativeaccommodation was to be put up by the petitioner-husband. This was nothowever finally decided, though it requires to be. In the meanwhile, the orderpermitting the respondent-wife to continue the occupation of one room in thesaid flat together with liberty to use the common bathroom and privy will haveto continue. We therefore allow the respondent-wife's appeal and pass thefollowing order :
41. The respondent-wife shall be entitled to continue to occupy andreside in the one room portion of the flat at Mahim, together with the use ofthe common bathroom and privy until such time as the petitioner-husbandprovides her with an alternative, suitable, adequate and appropriate accommodation for her residence. The parties would be at liberty accordingly to move the Family Court in this behalf for appropriate orders.
42. So far as the prayer of the respondent-wife for entitlement tothe return and custody of her stridhan property is concerned, the matter isremanded to the Trial Court for a full and complete inquiry into the matter,giving to the parties the necessary opportunity to adduce evidence in that behalf and then decide the matter in accordance with law.
43. The matter stands further remanded to the Trial Court for determination of the question of appropriate and adequate amount of monthly maintenance payable to the respondent-wife, having regard, to the relevant factors.We further direct that until such time as the issue of appropriate and adequate maintenance is not determined by the Trial Court, the respondent-wife shallcontinue to be paid a monthly maintenance allowance of Rs. 1500/- per month as ordered by the Trial Court.
44. In the result, the Family Court Appeal No. 37 of 1992 of thepetitioner-husband is hereby dismissed with costs.
45. The Family Court Appeal No. 58 of 1992 of the respondent-wifeis partly allowed as aforesaid, with no order as to costs.
46. We also feel that in the circumstances of the case, the FamilyCourt will permit the parties to have assistance of a legal practitioner if partiesso desire.
47. In view of the final orders passed in Family Court Appeal Nos. 37of 1992 and 58 of 1992, Civil Application No. 1554 of 1992 and 1822 of 1992in Family Court Appeal No. 37 of 1992 are disposed of.