Manish Satpal Agarwal Vs. Sau. Dolly Manish Agarwal - Court Judgment

Excerpt:
- karnataka municipalities act, 1964 [k.a. no. 22/1964]. disqualification; r.m. lodha, s.a. bobde & s.b. deshmukh, jj] disqualification of councillor express finding by caste scrutiny commi8ttee that caste certificate was obtained fraudulently or by making false claim, not necessary cancellation of caste certificate by scrutiny committee implies said fact and is sufficient. disqualification is proper. - smart card, poolgate, pune and was getting salary of rs. it is the case of the respondent that at the time of marriage, the appellant asked for various items like television, refrigerator, furniture etc. 30. after recording the evidence, the learned judge came to the conclusion that the appellant has failed to prove that the respondent treated him with cruelty as contemplated under section 13(1)(ia) of the hindu marriage act, 1955 (hereinafter 'the act'). the learned judge accordingly dismissed the petition for dissolution of the marriage by a decree of divorce. 7. learned counsel for the respondent, on the other hand, supported the judgment of the learned trial court and submitted that from the evidence on record, the learned trial judge has rightly arrived at a conclusion that the husband has failed to prove the case of cruelty against the wife. in the affidavit in para 8 it is averred that the wife used to tell him that he did not know anything and that he is 'moorkh, bhondu, crack and immature'.in his affidavit, it is averred that by way of using such words, it has disturbed him and because of the same his friends as well as his elder members of the family have suffered great mental torture as they are not in a position to tolerate such insults of the respondent. in para 13 of her cross-examination she has stated that respondent was serving in sos smart card and she used to leave resident at 8.00 a. he has stated that the appellant's mother-in-law always used to abuse the appellant saying 'bhondu, pagal, bevakoof' which they did not like. it is interesting to note that in the affidavit the said witness has put the aforesaid words in the mouth of the mother of the present appellant. and that her father paid money for such articles as well as paid rs. in her cross-examination, she has admitted the fact that she did tell the appellant that he is mentally weak but she did not disclose this fact to his parents. she has admitted that there is no medical evidence to show that the appellant is mentally weak. in paragraph 12 of her cross-examination she has admitted the fact that she was expecting well educated and well salaried husband. it is required to be noted that simply because at some occasion the respondent wife might have told to the husband that he is mentally weak or bhondu, it cannot be presumed that uttering of such words may amount to cruelty. respondent wife has clearly stated that she has never used these words in the presence of the parents of the appellant. 18. considering the evidence on record, in our view, the appellant has failed to make out any case for getting a decree of divorce on the ground of cruelty.p.b. majmudar, j.1. the appellant husband is the original appellant before the family court, pune, who instituted petition no. a436/ 2005 for getting decree of divorce. the appellant instituted the said petition before the family court, pune. it is the case of the appellant that his marriage with the present respondent wife took place on 6th february, 2003 at pune and thereafter they resided together till 5th october, 2004. out of the said wedlock, there are no issues.2. it is further the case of the appellant that he is serving as an accountant in gurunanak marketing company and was drawing salary of rs. 5,000/per month. as against that, respondent is serving at s.o.s. smart card, poolgate, pune and was getting salary of rs. 5,000/. according to the appellant, there was happiness in the initial period of their matrimonial life but thereafter the respondent wife started describing the appellant as a computer engineer. according to the appellant, the respondent was under the impression that the appellant is a computer engineer and, therefore, she gave consent for the marriage. on the said ground, the respondent used to give insulting treatment to the appellant husband and that continuously she used to tell that the appellant is not a computer engineer but is an accountant. it is alleged in the petition that the respondent was not taking proper care of the appellant and she was not waiting for the appellant for taking food together.3. it is also the case of the appellant that the respondent was not cooperating him in the matter of physical relationship. it is also alleged that at the time of engagement, father of the respondent gave rs. 31,000/to the appellant which amount has been spent by the appellant at the time of the marriage. after the marriage, the respondent was insisting the appellant to purchase a two wheeler for her for which she used to refer about payment of rs. 31,000/which was paid by her father to the appellant. it is the case of the appellant that the behaviour of the respondent was aggressive and she used to insult the appellant from time to time. on these and such other grounds, the petition for divorce was filed by the appellant.4. the aforesaid petition was resisted by the respondent wife by filing her written statement at exh. 21. the allegations made in the petition were denied by the respondent. it is the case of the respondent that the appellant demanded dowry of rs. 50,000/at the time of marriage. however, the respondent's father gave an amount of rs. 31,000/towards dowry. it is the case of respondent that before the marriage, the appellant represented himself as a chartered accountant and considering his qualification, her parents selected him as a suitable pair for their daughter. later on the parents of the respondent realised that the appellant was working as an accountant in gurunanak marketing and was receiving salary of rs. 5,000/per month. it is the case of the respondent that at the time of marriage, the appellant asked for various items like television, refrigerator, furniture etc. from the parents of respondent. it is her case that in fact she was cheated by the appellant as he described himself as a chartered accountant, though in fact he was only an accountant. on such and other grounds, the claim of the husband was resisted by the respondent wife. the respondent also filed counter claim seeking maintenance during the pendency of the petition.5. the learned trial judge framed various issues at exh. 30. after recording the evidence, the learned judge came to the conclusion that the appellant has failed to prove that the respondent treated him with cruelty as contemplated under section 13(1)(ia) of the hindu marriage act, 1955 (hereinafter 'the act'). the learned judge accordingly dismissed the petition for dissolution of the marriage by a decree of divorce. regarding permanent alimony, the learned trial judge granted permanent alimony at the rate of rs. 3,000/per month. it is the aforesaid order of the learned judge which is impugned at the instance of the appellant husband.6. mr. more, learned counsel appearing for the appellant submitted that the learned judge of the family court has gravely erred in dismissing the petition. he submitted that the respondent used to insult the appellant by saying that he is not c.a. but merely an accountant. it is submitted by him that constantly pointing out the said fact to the husband should be construed as a cruelty on the part of the wife. learned counsel further submitted that the respondent wife used to call the appellant 'bhondu, pagal, bevakoof' . it is submitted that by using such words regularly, a cruel treatment is meted out to the appellant. learned counsel further submitted that the use of such words continuously is nothing but a cruelty to the husband. simply because the appellant before the marriage might have described himself as a c.a. and though subsequently it has been found by the wife that he is only b.com, it would not be proper for the wife to humiliate the appellant by regularly telling him that he is not c.a. but only b.com. leaned counsel further submitted that to say to the husband 'bhondu, pagal, bevakoof' repeatedly amounts to cruelty as no sensible husband would tolerate such nonsense from the wife. learned counsel further submitted that in any case, looking to the income of the appellant, awarding of rs. 3,000/per month as permanent alimony to the wife is beyond the earning capacity of the appellant.7. learned counsel for the respondent, on the other hand, supported the judgment of the learned trial court and submitted that from the evidence on record, the learned trial judge has rightly arrived at a conclusion that the husband has failed to prove the case of cruelty against the wife.8. we have heard the learned counsel appearing for the parties at great lengthy. we have also gone through the evidence and the necessary documents forming part of the compilation and the record and proceedings which have been called for from the trial court.9. in order to find out whether from the evidence on record the case of cruelty can be said to have been made out by the husband, it is required to be stated that the appellant has filed his affidavit which is at page 81 in the compilation. in his affidavit he has stated that he was getting rs. 5,000/per month as salary. in the affidavit in para 8 it is averred that the wife used to tell him that he did not know anything and that he is 'moorkh, bhondu, crack and immature'. in his affidavit, it is averred that by way of using such words, it has disturbed him and because of the same his friends as well as his elder members of the family have suffered great mental torture as they are not in a position to tolerate such insults of the respondent. in his affidavit, he has narrated the incident of 5th october, 2004. on the aforesaid day when he went to the matrimonial home after office hours, the respondent on a trifle ground started quarrelling with him and started abusing him and his family members. in his evidence he has stated that he took loan from lic to purchase a 2 wheeler scooty. he has stated in his evidence that he has approached stree vani sanstha for settlement of dispute with the respondent. according to the appellant, the wife had not remained present there. in his cross-examination he admitted that his father was serving in air force and respondent's father was also serving in air force and their family were acquainted with each other for four years prior to the marriage. he has denied the suggestion that before the marriage, respondent's father sent wooden table, cupboard, dressing table etc. at his house.10. in paragraph 18 of the cross-examination he has stated that respondent is b. sc. and he is b.com. and has undergone 6 months computer course. he has denied the suggestion that he represented himself as a chartered accountant before the marriage. the appellant has not produced his salary certificate showing that he was earning rs. 5,000/per month. in the cross-examination he has stated that one deepak rajendra and her brother-in-law are the persons with whom respondent used to compare him. he denied the suggestion that he demanded dowry of rs. 51,000/.11. the mother of the appellant has also filed an affidavit wherein she has stated that the respondent used to leave for work at 8.00 a.m. and return at the matrimonial house at 8.30 p.m. she was not doing any additional work in the house. in para 3 of her affidavit, she has stated that on the date of marriage, the marriage procession was allowed to stand for about 45 minutes at the door and appropriate welcome was not given to the marriage procession. the father of the respondent was smoking a beedi and the mother and other elderly people of respondent insulted them. in her affidavit she has stated that her son was subjected to insult by the respondent and used to tell him 'bhondu, pagal, bevakoof' all throughout.12. in her cross-examination she has admitted the fact that engagement ceremony was held on 15th december, 2002. on that day the relationship between appellant an the respondent was cordial. in para 13 of her cross-examination she has stated that respondent was serving in sos smart card and she used to leave resident at 8.00 a.m. she was taking her tiffin with her. she was not having two wheeler with her when she was going for the job after the marriage.13. affidavit of one v.k. garg has been filed on behalf of the appellant, who introduced the parties before the marriage. in his affidavit he has averred that he came to know that there are disputes between the appellant and respondent and their family members.14. affidavit of one mohommad was filed by the appellant, who is an owner of a shop. in his affidavit it is averred that the mother-in-law of the appellant told him that respondent is giving her full salary to them. he has stated that the appellant's mother-in-law always used to abuse the appellant saying 'bhondu, pagal, bevakoof' which they did not like. it is interesting to note that in the affidavit the said witness has put the aforesaid words in the mouth of the mother of the present appellant. learned counsel for the appellant has submitted that no weight age be given to the said affidavit as the said witness has not offered himself for cross-examination.15. the respondent also submitted her evidence on affidavit wherein she has stated that the appellant was only interested in dowry rather than marriage. in her evidence she has stated that various articles were demanded such as t.v., fridge, washing machine, water cooler, etc. and that her father paid money for such articles as well as paid rs. 31,000/to the appellant at the time of sagai. in para 4 of her affidavit, she has stated that the appellant before the marriage was represented himself as a c.a. and her parents selected him thinking that he is a suitable match for their daughter. in her cross-examination, she has admitted the fact that she did tell the appellant that he is mentally weak but she did not disclose this fact to his parents. she has admitted that there is no medical evidence to show that the appellant is mentally weak. in paragraph 12 of her cross-examination she has admitted the fact that she was expecting well educated and well salaried husband. the father of the respondent has also filed an affidavit. on behalf of respondent, one ramesh patil has filed an affidavit. he has stated that the respondent was subjected to false allegation by her in-laws of having committed a theft of rs. 100/and they were trying to drive out the respondent from the matrimonial home.16. considering the evidence on record, it is clear that it cannot be said that the respondent wife has committed any act of cruelty. it is required to be noted that simply because at some occasion the respondent wife might have told to the husband that he is mentally weak or bhondu, it cannot be presumed that uttering of such words may amount to cruelty. respondent wife has clearly stated that she has never used these words in the presence of the parents of the appellant. in our view, the appellant should not have been so sensitive, even if few words are uttered by respondent during the married life. in a family life between husband and wife, occasionally there may be some exchanges of wits/anger/jokes or satire, that itself may not be treated as an act of cruelty. in our view, on some occasion even if respondent has said to the appellant that he is mentally ill, that itself cannot be treated as a ground for dissolution of the marriage. the learned trial judge has considered the evidence in an appropriate manner and in our view rightly found that no cruelty is meted out by the respondent to the appellant.17. similarly, even if the respondent has told the appellant that he is not c.a. but only a commerce graduate, such uttering should not be treated as an act of cruelty as the same can be said to be a statement of fact. it is not in dispute that before the marriage an impression was given to the parents of the respondent that the appellant is c.a. may be ultimately after marriage it was noticed by the respondent that the appellant is only a commerce graduate and when this fact is told to him, it cannot be considered as an act of cruelty on the part of the respondent. there is nothing on the record to show that the respondent regularly used to utter such words. the appellant knew that he is not c.a. and, therefore, if the said fact is uttered by the wife, the appellant should not have become so hypersensitive on this. in our view, uttering of such words itself cannot be said to be an act of cruelty alleged to have been committed by the respondent wife towards the appellant. from the evidence on record, we are of the view that the learned trial judge has rightly held that the marriage is not required to be dissolved on the ground of alleged cruelty. in a matrimonial life, uttering of some words here and there should not have been taken so seriously by the appellant. after marriage, the appellant and the respondent resided together for a considerable time. in fact it has come in evidence that false accusations were made against the respondent regarding theft of rs. 100/. in a matrimonial life, little adjustment from both sides is the need of the hour. at the relevant time, the respondent was serving as a daily wager which job she has ultimately left and she is no longer in the said employment. if the wife is serving and is required to attend the office from morning to evening, it is the duty of the husband also to see that she also has not been put to strenuous family work. a little cooperation on the part of the husband is a must.18. considering the evidence on record, in our view, the appellant has failed to make out any case for getting a decree of divorce on the ground of cruelty. we accordingly confirm the judgment of the trial court and dismiss the appeal so far as the aspect of cruelty is concerned.19. the learned counsel for the appellant submitted that the income of the appellant is only rs. 5,000/and, therefore, award of rs. 3,000/per month to the respondent is on a higher side. the learned trial judge has also noticed that the income of rs 5,000/stated by the appellant is not the correct income as it has come in evidence that the appellant used to pay rs. 5,000/to his parents as maintenance. the say of the respondent is that the appellant is working as an accountant and is receiving rs. 12,500/per month. the learned judge has considered that it is not possible to believe that the appellant may not have received any increments in his salary for few years. the learned judge has also considered this aspect about rise in the salary from time to time. the learned trial judge has also observed that the appellant is using mobile for which he is required to pay rs. 250/per month. in addition to this, he has to pay half yearly lic premium. considering the aforesaid aspect, the learned judge has found that it is not possible to digest the fact that the appellant is earning only rs. 5,000/per month. in our view, the order of maintenance passed at the rate of rs. 3,000/is not required to be interfered with by us in this appeal as cogent reasons have been given by the learned trial judge in this behalf for arriving at a figure of rs. 3,000/towards maintenance.20. considering the totality of the facts and circumstances and considering the evidence on record, in our view, the learned trial judge has rightly appreciated the evidence and rightly passed the impugned order. the learned counsel for the respondent has submitted that the respondent was in a daily rated service and she is not in service since 2005, which fact has also been examined by the learned trial judge. in view of the above, we do not find any substance in the appeal. appeal is accordingly dismissed summarily.21. in view of the dismissal of the appeal, civil application is also dismissed. there shall, however, be no order as to costs.