Daily Archives: September 13, 2013

Wife’s unsubstantiated allegations in WS are cruelty ! Divorce granted by bombay HC

Wife makes character assassination on the husband and repeats them in her WS before the lower court. she hands over husband’s property without his consent. All these acts are decreed as matrimonial cruelty by Bombay HC 
* “….the wife had leveled allegations about relations of the husband with one lady by name Yamuna Adalkar.…”
* “…even in the cross-examination, the wife has reiterated her stand about the husband having relations with the lady of the different caste. wife had levelled allegations against the husband about the ilicit relations with Yamuna and that she has not proved those allegations.…”
* “… on account of surrender of the premises at Pimpri Gaon by the wife without knowledge and consent of the husband, the husband was deprived of the said premises for no reason particularly when he wanted to retain the premises.….”
and so on 
The Hon HC concludes 

“…….we are inclined to observe that the unsubstantiated allegations levelled by the wife in the written statement as well as in her evidence as also evidence of her father amounted to mental cruelty as the wife has failed to prove those allegations by examining appropriate witness in support of the said allegations. In our view, the bare word of the wife or her father Haribhau, DW-2 who is treated by us as an interested witness, is not sufficient to accept that the wife has made good the allegations against the husband. The allegations are certainly serious and the husband is bound to undergo mental pain, agony and suffering. For the reasons mentioned aforesaid, we hold that the husband has been able to prove that the wife has treated the husband with cruelty…..”

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Bombay High Court
Ramesh Laxman Sonawane vs Mrs Meenaxi Ramesh Sonawane on 14 October, 2011
Bench: A.M. Khanwilkar, R.Y. Ganoo

USJ

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 4 OF 2003

RAMESH LAXMAN SONAWANE
Age 40 years, Occ. Service
R/at Kondhava Budruk,
S.No.36/2, Arjun Building,
Near Sunrise Co. Pune 48 .. Appellant

v/s.

MRS MEENAXI RAMESH SONAWANE
Age 35 years, Occ. Household,
R/at C/o. Haribhau Rambhau
Jagtap (Guruji), Pimple Saudagar,
(Kate Pimple) Aundh Camp,
Tal. Haveli, Dist. Pune .. Respondent ………

Mr. R.V. Govilkar for the appellant
Mr. S.M. Sabrad for the respondent

……..

CORAM : A.M. KHANWILKAR &

R.Y.GANOO, JJ.

JUDGMENT RESERVED ON : 24th AUGUST, 2011 JUDGMENT PRONOUNCED ON : 14th OCTOBER, 2011 ORAL JUDGMENT : (Per R.Y. Ganoo, J)

1. The appellant filed petition under Section 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as HMA) for divorce against the respondent in the District Court at Pune being Hindu Marriage Petition No.207 of 1998. The appellant shall hereinafter referred to as the husband. The respondent shall hereinafter referred to as the wife. The said petition was assigned to learned 6th Joint Civil Judge, Senior Division, Pune. Learned 6th Joint Civil Judge, Senior Division, Pune (hereinafter referred to as learned Trial Judge) conducted the trial and by Judgment and Decree dated 28th August, 2002 dismissed the said petition with costs. Being aggrieved by aforesaid Judgment and Decree dated 28th August, 2002, passed in Hindu Marriage Petition No.207 of 1998, the husband has filed this Family Court Appeal.

2. The marriage between the husband and the wife was solemnized on 12th February, 1987 as per Bauddha rites and rituals. Out of the aforesaid wedlock, the wife gave birth to a male child on 8th April, 1988 which was named as Paresh. Another male child was born on 9th January, 1990. The said son was named as Ritesh. The husband has filed this petition for divorce alleging therein that the wife had treated the husband with cruelty. The grounds on which the petition for divorce is filed are as follows :

(a) The wife was in the habit of picking up quarrels on trivial matters.

(b)The wife was always suspicious about the behavior of the husband. Said wife used to level defamatory allegations against the husband that he used to be out of the house till late night as he had some affair with a woman.

(c) The wife used to sell gold ornaments such as neckless, locket, earrings, golden rings and even Mangalsutra without permission of the husband and did not disclose to the husband as to what she did with that money.

(d) The husband was required to pay to the milkman a sum of Rs. 2,000/- for the milk which was never purchased and when the wife was questioned about it, she did not give satisfactory reply and that the husband was humiliated. The husband claims that he realized that the wife was paying that money to her brother.

(e) The wife did not shower love and affection towards the children and the wife was not attending to the children and the entire responsibility of the children was on the husband and that the husband had to attend to household duties like a married girl.

(f) The wife used to humiliate the husband before his friends and colleagues.

(g) The wife had borrowed money from the sister of the husband falsely stating that amount was needed for scooter repairing of the husband.

(h) It is also the case of the husband that in the month of May, 1997 the wife demanded monies from wife of brother of the husband and said wife of husband’s brother handed over ear rings to the wife as the wife had told that the monies are required for the medical treatment of elder son Paresh and that after borrowing monies, the wife sold those earrings and paid the amount to her brother. According to the husband when the husband questioned the wife about her behavior, wife herself told that she has paid the amount to her brother as he needed money. The husband felt embarrassed on account of the behavior of the wife. According to the husband, the wife was of hot temperament and quarrelsome nature and that she would beat the husband even before the children, by giving fist blows to the husband.

(i) According to the husband, on 16th February, 1998, wife demanded Rs.500/- from the husband and thereafter the wife quarreled with the husband and left for parental home on 17th February, 1998 and did not return thereafter. According to the husband, while leaving from the parental home, the wife did not bother to obtain his permission and she failed to take care of the children.

(j) The husband claims that the wife gave threats to him that she would file complaint in the police to falsely implicate him and get arrested.

(k)According to the husband, husband had a tenanted premises at Pimprigaon and that as he was staying at Kondhva (Bk) he had locked the said premises. According to the husband, while husband was at Delhi for his office work, in order to harass the husband, the wife surrendered the possession of the said premises to the landlord without the permission or consent or knowledge of the husband.

(l) The husband thereafter filed complainant with the Superintendent of Police through his advocate on 21st August, 1998., According to the husband, the wife had taken all the articles from the said house situated at Pimprigaon.

3. The divorce petition was served upon the wife. The wife filed written statement and she has denied each and every allegation which was levelled against her. So far as the allegation levelled against the wife stated in paragraph 2 of the petition regarding alleged affair with woman, the wife had not specifically denied the said allegation. The wife in paragraph 10 of her written statement had levelled allegation against the husband and stated that the husband is having relations with one lady by name Yamuna Genu Adalkar. The relevant portion of the said paragraph 10 is as follows :

“Without prejudice to what has been stated above this respondent states and submits that the petitioner is having licentious in character and at the instance of a lady named Yamuna Genu Adalkar, had caused to the respondent unbearable ill-treatment and had ultimately drive her out of this house threatening her to cause injury to her person if she returns. That the petitioner sent a notice that was replied by this respondent requesting the petitioner to take her back for co-habitation and be in the company of the petitioner and the children. It would thus be seen that the boot is in other leg”.

4. With the aforesaid contentions, the wife objected to the grant of decree of divorce and prayed that the petition be dismissed. The learned trial Judge considered the pleadings before him and framed issues at Exh. 37. They are as follows :-.

“1. Is it proved that the respondent caused mental and physical cruelty to the petitioner ?

2. Is is proved that the respondent has deserted to the petitioner without any cause ?

3. Is the petitioner entitled to the relief claimed ?

4. What order and decree ?”

5. At the trial, the husband gave evidence as PW-1. No other witness was examined on behalf of the husband. The wife gave evidence as DW-1. Mr. Haribhau R. Jagtap, father of the wife, gave evidence in support of the wife as DW-2.

6. The learned trial Judge came to the conclusion that the husband has failed to prove that the wife caused mental and physical cruelty to the husband. He also held that, the husband has failed to prove that the wife has deserted the husband without any cause. The learned trial Judge came to the conclusion that the husband is not entitled to reliefs claimed in the petition. The petition was, therefore, dismissed with no order as to costs.

7. The learned advocate Mr. Govilkar appearing on behalf of husband took us through the entire record and advanced submissions in support of the appeal so as to contend that the learned trial Judge committed an error in dismissing the petition.

8. According to learned advocate Mr. Govilkar, the testimony of the husband PW-1 should have been accepted so far as the allegations above mentioned at Sr. No. (a) to (k). He further submitted that though the husband had given cogent evidence in regard to the various ways in which the wife had treated him with cruelty the learned trial Judge declined to accept it. He submitted that the learned trial Judge erred in dismissing the petition.

9. Insofar as the allegation at Sr. No. (b), the learned advocate Mr. Govilkar submitted that in the petition at para 2, a categorical averment was made that the wife used to pass defamatory allegations against the husband, that he was being out till late night as he had some affair with a woman. The learned advocate Mr. Govilkar has submitted that these allegations made by the wife were without any substance and had caused psychological trauma to the husband. He pointed out that these allegations levelled by the husband against the wife are not denied by the wife while filing the written statement. He took us through the written statement, where the wife had dealt with the allegations in paragraph No. 2 and he submitted that in the absence of appropriate and specific denials the Court should hold that the allegations levelled in paragraph No. 2 against the husband have gone unchallenged. He submitted that on this count, the case of the husband that the wife had treated the husband with cruelty is required to be accepted. The learned advocate Mr. Govilkar submitted that apart from failure on part of the wife to specifically denying the allegations in paragraph No. 2 of the written statement, the wife had levelled allegations about relations of the husband with one lady by name Yamuna Adalkar. He pointed out that said allegations are found in para No. 10 of the written statement. Relevant portion of para 10 is quoted earlier. Learned advocate Mr. Govilkar submitted that the wife has not proved the allegations levelled against the husband as regards his ilicit relations with Yamuna Adalkar.

10. Learned advocate Mr. Govilkar drew our attention to para 3 of the examination-in-chief of the wife, DW-1 and submitted that wife’s evidence at para 3 clearly goes to show that wife had levelled allegations against the husband and has stated that the husband and Yamunabai were staying at Kondhava Budruk in a flat as if Yamuna was his wife of the husband. He further pointed out evidence of the wife in para 4 of her examination-in-chief where wife has stated that on the basis of information received from one Mr. Baburao, owner of the said flat, she came to know that the husband and Yamuna have purchased that and they are staying in the said flat. Learned advocate Mr. Govilkar further drew our attention to para 7 of the examination-in-chief of wife where the wife has stated that the husband has claimed divorce so that he can marry with the said lady Yamuna. Learned advocate Mr. Govilkar thereafter took us through evidence of wife and in particular para 10 i.e. cross-examination conducted by the husband that of the wife. He pointed out that even in the cross-examination, the wife has reiterated her stand about the husband having relations with the lady of the different caste. Learned advocate Mr. Govilkar therefore submitted that the wife had levelled allegations against the husband about the ilicit relations with Yamuna and that she has not proved those allegations.

11. Learned advocate Mr. Govilkar had taken us through evidence of Haribhau R. Jagtap, DW-2, father of the wife. He pointed out that said Haribhau, DW-2 has also levelled allegations against the husband as regards husband staying with Yamuna. Learned advocate Mr. Govilkar submitted that the wife has not proved the said allegations. Learned advocate Mr. Govilkar therefore submitted that the husband is entitled to a decree of divorce. Learned advocate Mr. Govilkar submitted that learned trial Judge has not considered this point in the proper perspective. Learned advocate Mr. Govilkar submitted that the observations of the learned trial Judge at para 10 to 12 of the impugned judgment are wrong in as much as the learned trial Judge failed to appreciate the submissions advanced by the husband as regards the allegations levelled by the wife that the husband is having illicit relations with said Yamuna.

12. So far as the allegations at point no. (K) (supra), Learned advocate Mr. Govilkar submitted that the husband had categorically stated in his evidence that he had gone to Delhi for his office work and when he returned to Pune, he noticed that a third person is occupying the premises and on enquiry with the landlord, he was informed that the wife has given possession of the said premises to the landlord. Learned advocate Mr. Govilkar submitted that the fact that the premises were surrendered by the wife was accepted by the landlord, and therefore the Court should have accepted the stand of the husband that on account of surrender of the premises at Pimpri Gaon by the wife without knowledge and consent of the husband, the husband was deprived of the said premises for no reason particularly when he wanted to retain the premises. Learned advocate Mr. Govilkar submitted the case of the husband that the wife had surrendered the premises to the landlord directly should have been accepted. Learned advocate Mr. Govilkar submitted that the very act of the wife to surrender the said premises to the landlord should have been accepted by the learned trial Judge as an act which constituted cruelty to the husband. Learned advocate Mr. Govilkar submitted that view taken by the learned trial Judge on the basis of text of Exh.52 i.e. a letter addressed to the Superintendent of Police is not correct. Learned advocate Mr. Govilkar had therefore submitted that this Court should hold that on account of surrender of the premises at Pimprigaon by the wife, the husband had suffered cruelty and that he is entitled for divorce.

13. So far as the ground of desertion is concerned, the learned advocate Mr. Govilkar submitted that the view taken by the learned trial Judge that the husband has failed to prove that the wife deserted the husband is incorrect. He took us through the notices at Exh.54 and 59. Learned advocate Mr. Govilkar had, therefore, submitted that considering the entire evidence on record and his submissions this Court should set aside Judgment dated 28th August, 2002 and allow the appeal and the marriage between the husband and wife be dissolved as prayed for.

14. Learned advocate Mr. Sabrad appearing on behalf of the respondent wife submitted that so far as the grounds set out at Sr. No.(d), (g) and (h), the husband has not proved them. According to the learned advocate Mr. Sabrad, the husband ought to have examined appropriate persons in support of his stand that the wife had dealt with those persons and entered into some transaction. It was submitted that the husband ought to have examined (i) the milkman, to whom the husband was required to pay a sum of Rs. 2,000/- (ii) husband’s sister who is supposed to have advanced monies to his wife. (iii) husband’s brother’s wife who is said to have handed over ornaments to the wife. Learned advocate Mr. Sabrad submitted that as the husband did not examine aforesaid person the learned trial Judge rightly came to the conclusion that the husband is not entitled to divorce. Learned advocate Mr. Sabrad further submitted that even as regards other allegations mentioend in grounds at Sr. Nos. (a), (c), (e), (f), (i) and (j), the husband has not proved them by giving proper evidence. He submitted that the learned trial Judge was right in declining the divorce on those grounds.

15. So far as the allegation against the wife that the wife had surrendered the premises at Pimprigaon to the landlord without the consent of the husband while the husband was at Delhi i.e. ground at Sr. No.(k) above. Learned advocate Mr. Sabrad submitted that the said allegations are not proved as the husband has not examined the landlord to place on record the circumstances under which the landlord got back the possession of the premises. He further submitted that the husband had filed a complaint with the Superintendent of Police and Commissioner of Police, Pune and in the said letter at Exh.52, the husband had stated that the landlord Shri. Vitthal N. Nanekar had forcibly taken possession of the said premises in the absence of the husband. He further submitted that in the said letter, the husband has stated that the landlord has taken possession of the premises by taking disadvantage of dispute between him and his wife. Learned advocate Mr. Sabrad, therefore, submitted that the husband did not approach the Police Officers with a positive case that the possession was surrendered by the wife to the landlord. According to him, a proper appreciation of letter dated 21st August, 1992 at Exh.52 addressed to the Police would go to show that the husband approached the concerned Authorities with a case that the landlord dispossessed the husband while he was at Delhi. Learned advocate Mr. Sabrad, therefore, submitted that the ground taken by the husband that surrender of the premises by the wife to the landlord without husband’s consent is not made out and consequently there is no question of the husband getting a decree of divorce. He submitted that the learned trial Judge has declined to accept the stand of the husband on this aspect and has rightly dismissed the petition.

16. Insofar as the ground of desertion more particularly stated in para 8 of the petition, the learned advocate Mr. Sabrad submitted that according to the husband, the wife left the premises on 17 th February, 1998 and did not return to matrimonial home. According to Mr. Sabrad learned advocate, in the petition the husband has not raised the ground that the wife deserted the husband. He submitted that the husband could not have been taken up the ground of desertion while filing this petition because according to the husband, the wife left the house on 17th February, 1998 and the petition was filed in November, 1999. He, therefore, submitted that the minimum period of 2 years required to get divorce on the ground of desertion by the wife was not available. He submitted that despite this learned trial Judge framed an issue at Sr. No.2. Learned advocate Mr. Sabrad states that the learned trial Judge has in para 26 dealt with the aspect of desertion. Our attention was drawn to the para 26. He submitted that two letters were sent by the husband to the wife being letters at Exh.54 and Exh.59. He pointed out that the husband had specifically stated in those letters that he is not inclined to continue matrimonial life with the wife and that it would be better if a divorce by mutual consent is obtained. According to Mr. Sabrad, if this was the stand of the husband, surely, there is no question of the husband seeking a divorce on the ground of desertion. He submitted that in any case, the learned Judge has answered the issue as regards desertion in the negative. He submitted that in paragraph 8 of the petition it is stated that the wife left the husband on 17th February, 1998 and that resulted in causing cruelty to him. Mr. Sabrad submitted that this allegation is not proved.

17. With reference to the ground taken by the husband at Sr.No. (b) above that the wife used to allege that the husband is having illicit relations with Yamuna, learned advocate Mr. Sabrad had submitted that this stand is reflected in para 2 of the petition and that wife has suitably dealt with the said paragraph in the written statement at paragraph 3 and has denied the said allegations. Learned advocate Mr. Sabrad had therefore submitted that as the wife had denied the averments in para 2, it was necessary for the husband to prove the contents of para 2 to show that the said allegations constituted cruelty upon the husband.

18. Learned advocate Mr. Sabrad submitted that the evidence given by the husband on the question of husband having relations with a lady by name Yamuna if perused would go to show that the husband had admitted that he had relations with Yamuna. He further submitted that cross-examination of wife would go to show that the husband had in terms of admitted his relations with Yamuna. Learned advocate Mr. Sabrad submitted that the argument advanced by him as regards the evidence of the wife on the question of relations between the husband and Yamuna are equally applicable as regards the evidence of Haribhau Jagtap, DW-2 i.e. father of Yamuna. According to learned advocate Mr. Sabrad, the wife has proved her case that the husband was having relations with Yamuna and, therefore, the stand of the husband that the wife inflicted cruelty upon the husband should not be accepted. Learned advocate Mr. Sabrad submitted that the learned trial Judge has rightly appreciated the evidence on the question of husband having relations with Yamuna and has rightly dismissed the petition.

19.On the basis of the submissions mentioned aforesaid, following points do arise for our determination.

(a) Whether the appellant husband has proved that the respondent wife treated him with cruelty ?

(b) If answer to point no.(i) is in the affirmative, whether the appellant husband is entitled to decree of divorce ? (c) What order ?

Our answers to the above points are as under:-

(a)In the affirmative.

(b) In view of answer to point no.1 in the affirmative, this point is answered in the affirmative.

(c) As per the final order.

20. With the assistance of learned advocates on both sides, we have considered the entire record. The grounds on which the divorce was sought are set out in the earlier part of the judgment. The grounds can be divided into three parts.

i. The first part consists of grounds where the husband claims that the wife did certain acts and those acts constituted cruelty. All those acts are mentioned in the earlier part of this judgment at item No.1 to (a) to (k) except item nos. (b) and (k).

ii. The Second part consists ground at Sr.No.(K) above where the husbands claims that while the husband was at Delhi for his office work, the wife surrendered the possession of the premises at Pimprigaon, which were held by the husband as tenant to landlord while without consent of the husband.

iii. Part 3 consists of the ground taken by the husband at Sr. No. (b) that the wife had levelled allegations against the husband that the husband used to be out of the house till late night as he had some affair with a woman. The husband had also sought divorce as the wife alleged that husband had illicit relations with Yamuna.

21. It is noted that the husband alone has given evidence. He has not examined any other witness. So far as the wife is concerned, the wife has examined herself as DW-1 and her father Haribhau R. Jagtap, DW-2.

22. Firstly, it would be convenient to deal with the case appearing part (i) above. The husband claims that various acts alleged to have been committed by the wife caused mental cruelty on him. We have considered the said allegations. We have also considered the judgment delivered by the learned trial Judge so far as these grounds are concerned. The learned trial Judge has rejected the case of the husband so far as these grounds are concerned by holding that the husband has not adduced cogent evidence to support the various allegations. The finding of learned trial Judge is right in as much as the husband has not examined any other person to support his case. The husband could have examined the milkman, his sister, his brother’s wife and his neighbours to support his case. He has not examined any of them. In our view, the learned trial Judge took a right view of the matter and declined to accept grounds covered by part (i) as sufficient to grant divorce.

23. Part(ii) above consists of the allegation levelled by the husband that the wife surrendered possession of the premises at Pimprigaon to the landlord without the consent of the husband. Insofar as this point is concerned, in para 12 of the petition, the husband states that while he was staying at Kondhava Budruk along with his son he had put his tenanted premises at Pimprigaon under his lock and key. He claims that the wife surrendered the possession of those premises. In the evidence, the husband has stated that he had been to Delhi and on return, he noticed some third person and on making inquiries, the landlord informed him that the wife had delivered the possession of the premises to him. The husband has admitted in para12 of the petition that he had addressed a letter dt. 21-8-1998 to the Superintendent of Police, Pune. We have perused the text of the letter at Exh.52 as well as the observations made by the learned trial Judge on the point raised by the husband as regards surrender of the premises by the wife without the consent of the husband. The letter at Exh.52 states that the landlord dispossessed the husband from the premises. The husband has equally stated in the said letter that he had heard that the landlord has taken possession of the premises by taking disadvantage of the dispute between the husband and his wife. The contents of this letter at Exh.52 if properly construed would go to show that it is not the case of the husband that the wife surrendered the possession of the landlord without his consent. If that would have been so, the husband would not have stated that the landlord had forcibly taken possession and that action should be taken against the landlord. The tenor of letter at Exh.52 clearly goes to show that the husband has come out with altogether different story than what is pleaded as a ground for divorce. The learned trial Judge has considered the effect of the evidence given by the husband on this count along with the text of letter at Exh.52. After having gone through the said material, we are inclined to observe that the learned trial Judge has taken a correct view of the matter and he has rightly rejected the stand of the husband that the wife surrendered the possession of the premises to the landlord without the consent of the husband. The learned trial Judge has also noted that it was not the case of the husband that the keys in respect of the said premises were in possession of the wife to enable her to surrender the possession to the landlord. In our view, the letter at Exh.52 is the document on the basis of which the husband initiated action against wife. It is to be noted that it is not the case of husband that the wife has broken open the locks and surrendered possession. This shows that the husband approached the Court with a false case that the possession of the said premises was surrendered by the wife to the landlord behind the back of the husband. For these reasons, we are not inclined to take a different view than the one which has been taken by the learned trial Judge so as to reject the stand of the husband that the wife had handed over possession of the premises at Pimprigaon to the landlord without the consent of the husband. Once this finding is reached, the husband cannot get divorce on ground contained in part (ii) above.

24. The third part consists of the stand taken by the husband that the wife used to level allegations against the husband that the husband had affair with a woman. A reference to this allegation is found at two places namely para 2 of the petition and para 8 of the petition. At para 2 of the petition the relevant portion is as under. “The petitioner works in Defence Estate as a peon and he has to be out of home till late night on account of official duties. In such event, the respondent would suspiciously pass defamatory allegations against the petitioner that he was being out till late night as he had some affair with a woman. This was a great psychological trauma to the petitioner”. The relevant text of paragraph 8 of the petition is as follows. “After the respondent left the petitioner, she started passing false, baseless, illegal and mischievous allegations against the petitioner that he had kept a concubine. This caused great mental cruelty to the petitioner”.

25. It would be necessary for us to refer to the relevant portions of the written statement so as to ascertain the stand of the wife on that ground. In reply to the portions quoted above forming part of paragraph 2, the wife has in para 3 of her written statement stated as follows.

“It is not true and this respondent does not admit that she has suspicious tendency. It is a plump-lie to allege that this respondent has passed any defamatory imputations against the petitioner on flimsy pretext so stated in the said para.”

26. In response to the portion of para 8 of the petition quoted above, the wife has not dealt with those allegations. Those allegations are not denied specifically or otherwise.

27. A perusal of these averments in the petition as well as written statement would clearly go to show that the wife has in no uncertain terms levelled allegations against the husband alleging therein that he has relations with Yamuna. It is true that the wife has not specifically denied those allegations as required in accordance with the provisions of Order 8 Rule 3 of Code of Civil Procedure. In fact, the portion quoted above, forming part of para 10 of her written statement clearly indicate that the wife specifically took stand in the written statement that the husband is having illicit relations with a lady by name Yamuna. The question before this Court is whether this conduct of the wife in levelling allegations as stated aforesaid would constitute cruelty.

28. We have perused the impugned Judgment and it is noticed that the learned trial Jude has rejected the stand of the husband in regard to the allegations levelled by the wife as mentioned aforesaid. The learned trial Judge has discussed this point in para 21 of his judgment and has observed that possibility cannot be ruled out that the husband was having relation with Yamuna and for that purpose, he had used to come late at night. The relevant portion of the para 21 is as under.

“21. ….. In this regard, it is specifically alleged by the respondent that the petitioner has developed relations or affairs with one lady Yamunabai Adkar. In this regard, the cross-examination of petitioner is of vital importance. According to him, he himself and one Yamunabai booked a flat at Kondhava Budruk at one place he states that he does not know Yamunabai. On the other hand, he has deposed about booking of a flat jointly. Under the circumstances, this is nothing but self-contradictory statement made by the petitioner and the possibility cannot be ruled out that he was having relations with Yamunabai and for that purpose he used to come late at night.”

29. A perusal of the aforesaid portion goes to show that the learned trial Judge came to the conclusion that there is possibility that the husband is having relations with Yamuna and, therefore, he did not accept the stand of the husband that the wife used to level wild allegations so far as husband’s character is concerned and that is how he did not grant decree of divorce.

30. We are, therefore, required to test the case on the basis of the material placed before the Court. The stand of the husband that the wife used to level allegations against the husband is made out by the fact that the wife has in para 10 of the written statement ventured to say that the husband is having relations with Yamuna. We have already stated that the wife has not specifically denied the contents of paragraphs 2 and 8 of the petition. On account of the failure to specifically deny the allegations as mentioned above, we are inclined to hold that the wife has accepted the stand of the husband as regards contents of para 2 and 8. This view is taken on account of provisions of Order, Rule 3 and 5 of Code of Civil Procedure and judgment of Apex Court in the case of Balraj Taneja and Anr. Vs. Sunil Madan and Anr. reported in (1999) 8 SCC 396.

31. We have perused the evidence. The husband entered the witness box as the first witness in the trial. A reading of his evidence at paragraph 15 goes to show that he has denied the suggestion made to him that he is in the habit of keeping relations with the another woman. He has stated that he does not know Yamuna. He has further stated that he does not know whether that lady is in service in telephone office located in front of his office. He has further stated that it is incorrect to say that he was having affair with that lady and therefore presence of the wife in his house was hurdle in his free life. He denied that he had driven the wife out of the house. In further cross-examination, he has stated as under. “18. It is incorrect to say that canteen of Yamunabai was adjoining to my office, therefore, I had occasion to meet her frequently. Therefore, we got close relations hence, started residing together at Kondhava. It is incorrect to say that the respondent noticed me and Yamunabai while cohabiting at Kondhava. Because of that disputes raised between me and respondent. It is incorrect to say that because of such instances, I sent divorce notice to the respondent instead of claim of restitution of conjugal rights.”

32. After the evidence of husband was over, the wife stepped into witness box and in the examination-in-chief as regards the alleged relations between the husband and wife, the wife in paragraph 3 has stated as under.

“I came to know the name of that lady. She is Yamuna Genu Adalkar. She was working in front in Telephone Exchange in front of office of the Southern Command, Pune. In the enquiry, I came to know that the petitioner along with 2 children left Pimprigaon. I tried to find out them. The petitioner never disclosed his real address. From the school at Pimprigaon, I came to know that the sons are shifted to the School at Kondhava Budruk. Therefore, I went to Kondhava Budruk. I got information as the petitioner was residing at Kondhava Budruk. I went at his address. I came to know that Ramesh and Yamunabai are cohabiting there. Yamunabai was cohabiting with him as a wife. I went to that flat. I noticed Yamuna and my son. She replied she is wife of Ramesh. Yamuna confined me and my parents in that flat”.

33. She has further stated in paragraph 4 as follows : “I did enquiry with the flat owner Baburao. He told that Ramesh and Yamuna purchased that flat and they are cohabiting in that flat. The flat owner had given me xerox copy of that agreement. It is placed on record with list Exh. 40/1”.

34.In the cross-examination at paragraph 10, she has stated as follows: “Our quarrel took place on the fact that the petitioner used to come to home late night and I was also came to know that after office hours he used to roam with one lady of different caste. This fact was told to me by the petitioner himself. When I came to know this fact from the petitioner, I complained of to my mother-in-law. She suggested me to solve my own problem”.

35. Further cross-examination was conducted by the husband on this point. The relevant portion is at paragraph 13. It is as follows: “It is not true to say that lady Yamuna Adkar is a hadicap. I do not know as to whether that lady runs Telephone Booth outside the office premises of petitioner. It is not true to say that on the count of alleged relations with said Yamuna, I have illtreated the petitioner by giving cruel treatment. It is true to say that I made a complaint as regards alleged relationship against the petitioner in his office”.

36. The father of the wife Haribhau was examined as DW-2. In the examination-in-chief at paragraph 2 he stated as follows : “On making enquiry it was noticed that the petitioner purchased one flat of one Dandekar and he along with that lady Yamunabai was residing over there. When I asked said Yamunabai how she was residing with the petitioner, she told that she is residing with the petitioner as his wife. Even today the respondent is willing to co-habit with the petitioner”.

37. In the cross-examination conducted on behalf of the husband, this witness Haribhau, DW-2 has at paragraph 8 stated as under : “It is not true to say that I am deposing false that the petitioner has affairs with lady Yamunabai. It is not true to say that said Yamunabai is not working as Telephone Operator and she runs a Telephone Booth out of office of Southern Command. It is not true to say that said Yamunabai is totally handicap below the waist and the said booth is being run by her, since she is handicap. It is not true to say that the petitioner has no concern with said Yamuna”.

38. After having considered the evidence which is mentioned above, the question is whether this Court should accept the stand of the husband that the wife levelled allegations against the husband as regards the husband staying with a lady by name Yamuna and whether those allegations constitute cruelty. We have already observed that the wife had not denied the averments in the petition whereby the husband had stated that on account of the allegations levelled against the husband as regards staying with Yamuna, the husband had suffered cruelty. We have also noticed that the wife did not specifically deny the allegation. She has stated positively about the husband’s conduct qua Yamuna. In addition to what is stated in para 10 of her written statement, the wife has stated about the relations between the husband and said Yamanua in the course of her evidence. Haribhau DW-2 has towed wife’s line. In a situation like this, if it was the stand of the wife that the husband had illicit relations with Yamuna, it was her duty to prove the said fact by leading cogent evidence. In the present case, no doubt, the wife has given evidence as regards relations between Yamuna and the husband. She has even stated that she visited the house of the husband where she saw Yamuna. No doubt, the wife has examined her father also in support of her aforesaid stand. The question is whether the Court should accept the evidence of wife and her father as sufficient. In our view, the answer is in the negative. We are inclined to treat the father as an interested witness and, therefore, evidence of Haribhau, DW-2 will be of no avail to the wife. The wife has stated in examination-in- chief that she had met one Mr. Baburao, who according to her was the owner of the flat, where the husband and Yamuna were staying. She claims to have derived knowledge from said Baburao to support her stand. The wife has not examined said Baburao to support her case. Looking to the positive case of the wife that the husband started staying at Kondhava Budruk along with Yamuna, it was possible for her to examine any of the neighbours of the husband who could have deposed about the residence of Yamuna in the company of the husband. No such witness has been examined. In the evidence, the wife has stated that she went to Kondhava Budruk and she gathered information about the husband staying with Yamuna. From whom she had gathered this information is not stated. No evidence is produced by the wife in support of this claim that she has visited the house of the husband at Kondhava Budruk.

Said Haribaho, DW-2 has stated in his examination-in-chief, the portion of which is quoted above, that on making inquiries, he noticed that the husband had purchased a flat of one Dandekar and he was staying with Yamuna in the said flat. Who told him about the purchase of the flat by the husband from one Dandekar is not mentioned. The date on which the said Haribhau visited the flat and noticed Yamuna in the said flat is not mentioned. Same is the case about the visit of wife to the flat. She also does not mention the date on which she visited the flat where she noticed Yamuna. In our view, the evidence which is quoted above coupled with the discussion mentioned above would go to show that the wife levelled unsubstantiated allegations against the husband as regards his alleged relations with Yamuna in the written statement as well as in the notes of evidence. These allegations have not been proved by the wife though she could have adduced adequate evidence. It is true that if one peruses the cross-examination conducted by the husband, one gets an impression that the husband knows one lady by name Yamuna and that she is handicaped. One also gets an impression that husband knew that said lady was running telephone booth outside the office premises of the husband’s office. The wife herself has stated in para 3 of her examination-in-chief that said Yamuna was working in front of the Telephone Exchange in front of office of Southern Command, Pune. This will mean that the wife wanted to place on record the fact that the said Yamuna was working at his telephone exchange which is very close to the office premises of the husband. In our view, various suggestions given by the husband in the cross-examination of the wife as well as the father, may at the most go to show that the husband knew one lady by name Yamuna. The cross-examination conducted on behalf of the husband nowhere indicates that the husband accepted the case of the wife that the husband had illicit relations with Yamuna.

39. Learned advocate Mr. Sabrad appearing on behalf of the wife had drawn our attention to the cross-examination of the husband conducted on behalf of the wife. Relevant portion of husband’s cross-examination conducted on behalf of the wife is as under. “Myself and said Yamunabai booked flat jointly at Kondhava Budruk, S.No.36/2 or that the flat was booked at Baburao Arjuna Dandekar”.

40. We have considered the portion quoted above. In our view, looking to the stand of the husband as a whole, it is just difficult to accept that that husband would admit his relations with Yamuna. In our view, the sentence quoted above appearing in para 16 of the cross- examination of the husband “myself and said Yamuna booked the flat jointly at Kondhava Budruk Survey No.36/2 or that flat was booked at Baburao A. Dandekar” is obviously wrongly typed. We have arrived at this conclusion looking to the evidence of the husband PW-1, evidence of wife DW-1 and evidence of wife of the father Haribhau, DW-2.

41. The net result of the aforesaid discussion is the wife treated the husband with cruelty by levelling unsubstantiated allegations that the husband is having illicit relations with Yamuna. We have already observed that the allegations levelled by the wife have not been proved. The Supreme Court in the case of Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhatia, AIR 2003 SC 2462 was required to decide “whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty to claim decree of divorce under Section 13(1) (ia) of the Hindu Marriage Act. The Supreme Court in paragraph 7 of the aforesaid judgment has quoted as under.

“The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1) (ia) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.”

42. Applying the said ratio to the facts of this case, we are inclined to observe that the unsubstantiated allegations levelled by the wife in the written statement as well as in her evidence as also evidence of her father amounted to mental cruelty as the wife has failed to prove those allegations by examining appropriate witness in support of the said allegations. In our view, the bare word of the wife or her father Haribhau, DW-2 who is treated by us as an interested witness, is not sufficient to accept that the wife has made good the allegations against the husband. The allegations are certainly serious and the husband is bound to undergo mental pain, agony and suffering. For the reasons mentioned aforesaid, we hold that the husband has been able to prove that the wife has treated the husband with cruelty.

43.It is required to be observed that the attention of the learned trial Judge was drawn to the relevant evidence and an effort was made by the husband to persuade the learned Judge to come to the conclusion that the unproved allegations by the wife should be treated to hold that the wife has treated the husband with cruelty. That submission was not accepted by the learned trial Judge. The learned trial Judge has dealt with the point regarding the allegations and the effect thereof at paragraph 21. The relevant portion of the judgment is as under.

“In this regard, it is specifically alleged by the respondent that the petitioner has developed relations or affairs with one lady Yamunabai Adkar. In this regard, the cross-examination of petitioner is of vital importance. According to him, he himself and one Yamunabai booked a flat at Kondhava Budruk at one place he states that he does not know Yamunabai. On the other hand, he has deposed about booking of a flat jointly. Under the circumstance, this is nothing but self-contradictory statement made by the petitioner and the possibility cannot be ruled out that he was having relations with Yamunabai and for that purpose he used to come late at night”.

44. It is specifically alleged by the wife that the husband has developed relations or affair with one lady by name Yamunabai. It appears that the learned trial Judge relied upon the portion of the evidence where the husband has stated that the flat was booked jointly. The learned trial Judge should have appreciated that the husband could not have admitted that he has jointly purchased flat with Yamuna as it has been the consistent case of the husband that wife’s case that he was having illicit relations with Yamuna is patently false. We do not agree with the observations of the learned Judge which are quoted above by which he has observed that a possibility cannot be ruled out that he was having a relations with Yamuna and for that purpose, he used to come late at night.

45.For the reasons aforesaid, we hold that the learned trial Judge erred in rejecting the stand of the husband that the husband failed to prove that the wife treated the husband with cruelty.

46. For the reasons mentioned above, point no.1 is answered in the affirmative. Having recorded a finding on point no.1 in the affirmative, the husband would be entitled to decree of divorce as per the provisions of Section 13(1) (ia) of the Hindu Marriage Act, 1955. Accordingly, the impugned judgment and decree dated 28th August, 2002 passed by learned 6th Joint Civil Judge, Senior Division, Pune in Hindu Marriage Petition No.207 of 1998 is required to be set aside and petition is required to be made absolute.

47. For the reasons mentioned aforesaid, the appeal is decided by passing following order.

ORDER

(i) Judgment and Decree dated 28th August, 2002 passed by learned 6th Joint Civil Judge, Senior Division, Pune in Hindu Marriage Petition No.207 of 1998 is set aside.

(ii) Accordingly, marriage between the appellant and the respondent solemnized on 12th February, 1987 is hereby dissolved in accordance with the provisions of Section 13(1)(ia) of the Hindu Marriage Act, 1955.

(iii)In the facts and circumstances, there shall be no order as to costs.

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CIVIL APPLICATION NO. 123 of 2011

IN

FAMILY COURT APPEAL NO. 4 OF 2003

Ramesh Laxman Sonawane .. Applicant V/s.

Mrs. Meenaxi Ramesh Sonawane .. Respondent This civil application was filed by the appellant husband for bringing on record various documents which are set out in prayer clause (b) of the said application. One of the said document is the writing dated 20th July, 1998 purported to have been executed by and between Mr. Vithal N. Nanekar and the wife as regards surrender of the possession of tenanted premises at Pimprigaon. The other documents pertain to the stand of the appellant husband that he was required to be at Delhi from 18th July, 1998 till 1st August, 1998. In the first place, the husband is not in a position to demonstrate that these documents could not be brought on record before the trial Court inspite of due diligence. Further, we have rejected the case of the appellant husband that the respondent wife had surrendered the tenanted premises at Pimprigaon to the landlord behind the back of the appellant husband. We have made detailed observations so as to hold that the case of the husband that the wife had surrendered the possession of the tenanted premises to the landlord without his consent is not made out. We, therefore, hold that this Civil Application is required to be rejected. It accordingly stands rejected.

(R.Y.GANOO, J.) (A.M. KHANWILKAR, J.)

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

BOMBAY HC “conduct of WIFE shows she made HUSBAND and his family members’ LIFE miserable” ; Divorce granted : wife’s false claims of stridhan discounted, by HC : “…..satisfied ..no evidence ..to hold that wife’s stridhan was retained by husband …..”; Still maintenance Rs 5000 p.m. granted !!

BOMBAY HC "conduct of WIFE shows she made HUSBAND and his family members’ LIFE miserable" ; Divorce granted : wife’s false claims of stridhan discounted, by HC : "…..satisfied ..no evidence ..to hold that wife’s stridhan was retained by husband ….."; Still maintenance Rs 5000 p.m. granted !! with a permission to enhance it as per law !!!

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Excerpts :
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"….According to the appellant, the respondent’s brother – Puranmal made attempt to outrage her modesty by gestures, by touching her private part and by forcibly kissing her. She also deposed that Puranmal, at one point of time, asked her to undress and allow him to have sexual intercourse with her. She further deposed that her sister-in-law Bhavna informed her about the alleged family custom. …"

"…Merely because she denied the suggestions made and/or did not admit the case put to her, does not mean that her allegations stand proved, as tried to be canvassed by Mr.Thakkar, learned counsel for the respondent. As is seen from the evidence referred to in the foregoing paragraphs, the allegations about the family custom and the allegations against Puranmal, it is clear that they were made for the first time after the respondent filed the present petition for divorce against her and after the summons in this case was served on her. …."

"………The conduct of the appellant clearly shows that she had made the life of the respondent and his family members miserable. The manner in which she used to lodge criminal complaints one after another against the respondent undoubtedly would constitute mental cruelty. We are satisfied that there is no chance of their coming together and living together again and, therefore, their marriage has been rightly dissolved by the trial court under section 13(1)(i-a) of the Hindu Marriage Act………"

"…..Learned counsel for the appellant took us through the relevant portion of the evidence in support of the appellant’s claim regarding Stridhan. However, we are satisfied that there is no evidence on record to hold that the appellant’s stridhan was retained by the respondent when she left the matrimonial home last….."

"…………Keeping that in view and having considered the background of the family from which the respondent comes from and looking to their family business so also his income in 1994, as stated by him, in his examination-inchief, we deem it appropriate to direct the respondent to pay Rs. 5000/- each to the appellant and her son Aniket from the date of this order. ………"

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO.68 OF 2005

Smt Nita alias Nathi
Hitendrakumar Sakariya,
aged 24 years, Occ: Household,
Hindu Indian Inhabitant of
Rajasthan, residing at C/o
Kantilal Dhar-Parmar Sumerpur
Main Bazar, Near M.P.Traders,
Dist.Pali, Rajasthan-306902. .. Appellant

Vs

Shri Hitendrakumar Kaluram
Sakariya,
aged about 26 years,
Occupation Business, Hindu,
Indian Inhabitant of Mumbai,
residing at 84, Militia
Apartment, Block No.4, 1st floor,
Mhatar-Pakhadi Road,Mazgaon,
Mumbai-400010. .. Respondent

Mr Vishal Thakkar i/b M/s Kiran Jain & co, for the appellant.
Mr V.D.Walawalkar i/b Sameer B Bhalekar, for the respondent.
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CORAM : D.B.BHOSALE AND R.Y.GANOO,JJ.

DATE : 12 /03/2010.

ORAL JUDGMENT : (Per D.B.BHOSALE,J.)

1. This Family Court Appeal under section 19 of the Family Courts Act, 1984, is directed against the Judgment and order dated 30.3.2005 passed by the Principal Judge, Family Court, Mumbai. By this judgment, a petition, filed by the respondent husband, being Petition No.A-942 of 1997, has been allowed and the marriage of the appellant-wife and the respondent has been dissolved by a decree of divorce on the ground of cruelty, under section 13 (1)(i-a) of the Hindu Marriage Act, 1955 (for short, “the Act”). While dissolving the marriage, the Family Court held that the appellant-wife is entitled to permanent custody of their son Aniket. The Family Court, however, has negatived the appellant’s claim of Stridhan and has directed the respondent to pay maintenance of Rs.2500/- per month each to the appellant and to their son Aniket.

2. The respondent has not challenged any part of the impugned Judgment, and, therefore, learned counsel for the parties have not addressed the court on the question of custody of Aniket.

3. The brief facts, which are relevant to dispose of this appeal, are recapitulated as under: The parties were married on 20.5.1994 at Sumerpur, Rajasthan according to Hindu Vedic Rites and Customs of the community. After the marriage, the parties stayed at their native place for about a month and came to Mumbai and started residing in the joint family at Militia Apartment, Mazgaon, Mumbai. They cohabited for a period of about two years and on 29.6.1996 the appellant left the matrimonial home last and thereafter she did not return. During the period of two years, according to the respondent, there were several incidents causing cruelty to the respondent and making it impossible for him to live with the appellant. The respondent, therefore, filed petition for divorce on the ground of cruelty in May, 1997.

After the service of summons, the appellant filed a criminal case under section 498-A of IPC against the respondent and his family members some time in October, 1997 making very serious and wild allegations against the respondent and his family members. She alleged that there is a custom in the respondent’s family to share each others wives with other male members in the family and that she was consistently and persistently told by the respondent and the female members in the family to have illicit relations with the brother and the brother in-law of the respondent. She also alleged that the brother of the respondent-Puranmal also outraged her modesty. In this case, all the accused were convicted by the learned4 Magistrate vide his Judgment and order dated 1.12.2004. Against the order of conviction, the respondent filed appeal and in the appeal the respondent and his family members were acquitted vide Judgment and order dated 13.8.2008. A revision against the order of acquittal is pending. There is no dispute that in connection with this case the respondent and his family members were arrested and released on bail. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

4. Before we proceeded to hear this appeal on merits, with a view to see if a settlement or reconciliation was possible, we interviewed the parties in chamber and found that reconciliation was not possible between them.

5. In order to examine and appreciate whether the behaviour of the appellant towards the respondent falls within the legal conception of cruelty, we refer to the recent Judgment of the Supreme Court in Suman Kapur Vs Sudhir Kapur, 2009 (1) SCC 422. In this case, the Supreme court, has observed that if it is mental cruelty, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the other spouse. Whether it caused reasonable apprehension that it will be harmful or injurious for him to live with the respondent ultimately is a5 matter of inference to be drawn by taking into account the nature of conduct and its effect on the complaining spouse. (Also see Sbhobha Rani V Madhukar Reddi, (1998) SCC 105). In Dastane Vs Dastane, (1975) 2 SCC 326, the Supreme Court defined the expression “cruelty” as follows. “The enquiry has to be whether the conduct charged as cruelty is of such character as to cause in the mind of the petitioner, a reasonable apprehension that it will be harmful or injurious for him to live with the respondent.” Keeping this in view, we have heard the learned counsel for the parties at considerable length and with their assistance gone through the entire material including depositions of the witnesses examined by both the parties.

6. The respondent-husband, to prove his case, examined himself and his sister Rashmi Jain. On the other hand, the appellant examined herself and her father Kantilal Jain. The parties have also placed several documents on record including complaints lodged by the appellant against the respondent and his family members. We have perused the depositions of all the witnesses so also the documents to which our attention was drawn by the learned counsel for the parties.

7. According to the respondent, right from the beginning the6 appellant was not willing to stay in the joint family and she started demanding separate residence. She told the respondent that their marriage was against her wish. Her attitude, conduct and behaviour towards him as well as his family members was rude, hostile and annoying. There is no dispute that after the marriage they came to Mumbai and started residing in the joint family house at Militia apartment. The family of the respondent was in jewelery business in partnership. The respondent has deposed that during quarrels the appellant used to assault him with a broom and tear his clothes. The respondent also made an attempt to commit suicide. On one occasion, the appellant tried to hurt him with a knife. This behaviour of the appellant, according to the respondent, was to pursue her demand of separate residence.

In August, 1994, the father of the appellant came to Mumbai and took the appellant to their native place at Sumerpur. Within 15 – 20 days, the respondent along with his sister Rashmi, her husband Pradeep and Pradeep’s friend Laxman went to Sumerpur to bring the appellant back. According to the respondent, she was not inclined to come to Mumbai. With great persuasion she joined them and from there they went to Nakoda, the holy place of Jain and from Nakada to7 Abu and then to Ambaji. From Ambaji they went to Sankeshwar and then came to Mumbai. During this journey from Sumerpur to Mumbai, at every place, the appellant made attempts to run away which forced them to call her brother requesting him to take her to Sumerpur. At Ambaji, according to the respondent, the appellant went to the extent of running away after locking the door from outside when she was in the company of his sister and their friend Laxman. At Abu she threatened the respondent and others that if they prevent her from going away she would create a scene by shouting that she was being raped. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

After they came to Mumbai in November, 1994, the respondent stated that she stayed with the respondent for 6-7 months and during this period she conceived. In the last week of July,1995 the brother of the appellant came to Mumbai and took her to their native place for delivery. She delivered the son Aniket on 23.9.1995. A month after her delivery, the respondent’s parents went to Sumerpur to bring her back to Mumbai. However, she did not come back to Mumbai with them. After she returned to Mumbai with her father the respondent’s father made arrangement of their separate residence in the flat at Vaishali Apartment, Byculla. The said flat was standing in the name of the respondent’s brother, who is a doctor. 8 In Vaishali Apartment, the respondent was living with the appellant and their son. There also, according to the respondent, the appellant used to quarrel on every minor issue. On 19.6.1995, there was a quarrel, when the appellant lodged false police complaint with Byculla police station against him. As a matter of fact, according to the respondent, the appellant torn his clothes and slapped him with footwear on that day. On 26.6.1996, the appellant in the morning was allegedly beating the child and when the respondent tried to intervene she assaulted him with footwear and broom. She also took a knife and when the respondent tried to hold her, it hurt him on his left hand. This incident forced the respondent to lodge complaint with the Byculla police station against the appellant. It appears that both were called at the police station and advised to live peacefully. Thereafter on 28.6.1996, a joint meeting was held at Vaishali Apartment, which was attended by the respondent, his father, brother, the appellant, his brother, father and their friends Jayantibhai, Jaichand, Uttam and the son of Jayantibhai. The outcome of the meeting was not happy and the appellant ultimately left the matrimonial home on 29.6.1996 along with her father.

8. The respondent in his deposition made reference to9 several criminal complaints lodged by the appellant against him and his family members including the case under section 498-A of IPC. In that case, search warrants were issued and accordingly search of their three houses, three shops was taken. The respondent has also made reference to the defamatory articles published in Marathi newspapers “Mohan Police Times” and “Hindu Version” (Exhibit-16 Colly) in which it was alleged that the appellant was forced to sleep with the respondent’s brother, father and the brother-in-law. It was also mentioned in the articles that there is a custom in the respondent’s family to share wives of each other by male members in the family and that the respondent’s mother and sister-in-law also used to tell the appellant to sleep with the respondent’s brother and the brother-in-law (for short “the alleged custom). After these articles were published in the newspapers (Exhibit-16 ‘Colly’), the respondent issued a notice to these papers (Exhibit-17).

9. In the cross-examination, the respondent has stated that his parents used to sleep in the living room and the respondent and his brother used to sleep in two independent bed rooms. Insofar as the incidents that occurred at Abu and Ambaji are concerned, the case put to the respondent was replied by him stating that “it is true that at Ambaji the appellant ran away10 after locking the door from outside”. Then the respondent, to one of the questions, replied stating that NC complaints (Exhibits 18,19,20) on 30.6.96, 19.2.96, 30.5.96 and 19.6.96 were lodged by the appellant only against the respondent. It is pertinent to note that in these complaints the appellant did not whisper about the alleged custom in the family. From perusal of the cross-examination, we did not find any admission of the respondent or nothing could be drawn forth in the cross examination so as to either disbelieve or discard the examination-in-chief or any part thereof. As a matter of fact, no case was put to the respondent about certain instances/incidents quoted in his examination-in-chief. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

10. The respondent’s another witness Rashmi Jain has, by and large, supported the deposition of the respondent. She was one of the persons who accompanied the respondent to Abu, Ambaji, and Sankheshwar. She narrated in detail about the conduct of the appellant at these places. She deposed that at one point of time the appellant threatened that she would raise hue and cry stating that she was being raped. At this stage, we would like to make reference to the evidence of the appellant in respect of the incidents that occurred at Abu, Ambaji and Sankheshwar. She admits their visit to these places. According to her, at one point11 of time, she was confined in a hotel room since she refused to succumb to the pressure to have sexual intercourse with her sister-in-law’s husband. She further stated that when she was confined in the hotel room, the persons in the neighbouring rooms rescued her. She also deposed that during her stay at Abu the respondent disclosed her about the alleged custom in the family and was threatened that if she did not succumb to such demands she would have to face dire consequences. At Abu or at Ambala or at Sarkeshwar, admittedly, she did not lodge any complaint about the alleged illtreatment meted out to her by the respondent and others.

11. The appellant in her deposition has endeavoured to show that she was subjected to cruelty by the respondent and his family members and her emphasis was on the alleged custom in the family. According to the appellant, the respondent’s brother – Puranmal made attempt to outrage her modesty by gestures, by touching her private part and by forcibly kissing her. She also deposed that Puranmal, at one point of time, asked her to undress and allow him to have sexual intercourse with her. She further deposed that her sister-in-law Bhavna informed her about the alleged family custom. Though the appellant made such a wild and serious allegation against the respondent and12 his family members, she has not given the details as to when these incidents occurred. From her evidence, it appears that this all happened before she went for her delivery in August, 1995. There she disclosed about the alleged family custom to her father. The father of the respondent has deposed that the appellant did inform him about the alleged custom and cruel treatment meted out to her. The father of the appellant, however, simply advised her to take the respondent in confidence and to tell him about the alleged demand of Puranmal. He claims that he also made attempts to persuade the appellant to desist from such treatment to the appellant but there was no positive response from the respondent. Apart from these allegations, she has also deposed in her examination-in-chief, to the incident of assault dated 19.6.1996. According to the appellant, on this day, she was again assaulted by the respondent and his family members merely because she stated about the intention of Puranmal to have illicit relation with her. In the cross, she reiterated that on 19.6.1996 she was assaulted and that she lodged complaint (Exhibit-20) with the Byculla police station. She, however, admitted that the complaint was lodged only against the respondent and there was no allegation of assault in the complaint. Further in reply to the13 next question, she stated: “It is not true that I have stated falsely that Puranmal and other family members were intending to have illicit relations with me and, therefore, I was assaulted.” Thus, she tried to link the alleged assault with the complaint at Exhibit-20. Further, she claims that she informed about the assault and illtreatment to her sister-in-law Bhavna when Bhavna allegedly asked her to concede to the said demand otherwise her life would become miserable. She thereafter stated that her in-laws stopped her food. We have perused the complaint dated 19.6.1996 (Exhibit-20). This complaint was made only against the respondent and there was nothing in the complaint either about the alleged family custom or the assault or to the demand to have illicit relations with other male members. The complaint speaks about a telephone call received by the appellant, and when the respondent inquired as to whose telephone it was, there was quarrel between the two. We have also perused the other complaints lodged on 19.2.1996 and 30.5.1996 (Exhibits 18 and 19). These complaints were also against the respondent only and there was no allegation about the alleged family custom. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

12. When the appellant returned to Mumbai after her delivery, she along with the respondent and their child started14 residing separately at Vaishali Apartment. Even thereafter, she has stated that the family members of the respondent continued to exert pressure upon her to have illicit relations with other male members in the family. She has also deposed to the incident dated 19.2.1996. It would be relevant to reproduce the relevant portion of her examination-in-chief (paragraph 18) which reads thus:

“I say that on 19.2.1996 I refused to cater to petitioner’s brother viz. Puranmal’s lust. I lodged a complaint with the Byculla Police Stationwhich is N.C. Complaint bearing N.C.No.417/96. After lodging of the said complaint, the said Puranmal tried to push me from the 2nd floor, because I refused to listen. I was also beaten. I told that I would prefer to die rather than have illicit relations. I say that the said Puranmal on hearing about me rather to die than have illicit relations, told and exhorted that he was the only male in the world who can help me to conceive a child and rest all are impotent. He also told me that what difference it makes if he touches my body.”

The N.C complaint referred to in the aforesaid paragraph of the examination-in-chief is at Exhibit-18. We have perused this complaint. It is against the respondent only. It states that there was quarrel between the two when the respondent allegedly abused and assaulted her with fist blows. She has not named Puranmal in this complaint.

13. The appellant in her deposition, at two different places, has given different explanation as to why in the police complaints (Exhibits-18, 19 and 20) she did not state anything against Puranmal or about the alleged family custom. Firstly, she stated that she wanted to save the family image, and secondly, she stated that because Puranmal had threatened to kill her brother. The appellant has further deposed that even thereafter she made various complaints on 7.8.1997, (two complaints), 24.9.1997 and 27.9.1997 (two complaints) against the respondent. Originals of these complaints, according to the appellant, were produced in 498-A case, being C.C.No.433/P of 2002 and photocopies thereof have been placed on record in these proceedings. None of the complaints, namely, the complaints at Exhibits 18,19,20 or the complaints dated 7.8.1997, 24.1.1997 and 27.9.1997 makes any reference to the alleged custom in the family. Considering to the number of complaints, she lodged against the respondent and his family members, and even her subsequent conduct in making the complaint under section 498-A of IPC and making such a wild and serious allegations against the respondent and his family members, her explanation for not stating anything about the alleged family custom deserves to be rejected outright. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

It is true, the appellant in her cross examination denied that she filed false criminal cases against the respondent and his family members only because the respondent filed the present petition for divorce. She further denied that she filed the criminal case only to harass the respondent and his entire family. A specific case was put to the appellant in the cross examination that “she filed false cases against the respondent and his family members only with a view to harass them mentally and to spoil their image and reputation in the society.” This was also denied by the appellant. She further denied that the respondent lost his father only because of the false and dirty allegations made against him. Merely because she denied the suggestions made and/or did not admit the case put to her, does not mean that her allegations stand proved, as tried to be canvassed by Mr.Thakkar, learned counsel for the respondent. As is seen from the evidence referred to in the foregoing paragraphs, the allegations about the family custom and the allegations against Puranmal, it is clear that they were made for the first time after the respondent filed the present petition for divorce against her and after the summons in this case was served on her. While she was staying with the respondent and his family members, she filed several complaints against them and in none of those complaints she made any such allegation against his family members. She had ample opportunities to lodge complaint at every stage. Even after she left matrimonial home last in June 1996, she took almost one and half year to make these allegations against the respondent and his family members. Having regard to the totality of the evidence and the circumstances established thereby, we are of the view that the appellant has miserably failed to substantiate these nasty allegations against the respondent and his family. We are satisfied that the allegations against the respondent, Puranmal and other members of the family at various places and from stage to stage made by the appellant are absolutely baseless, irresponsible, wanton and scandalous and they were made for the reasons best known to the appellant.

14. Mr.Thakkar, learned counsel for the appellant, vehemently submitted that the respondent is not entitled for a decree of divorce on the basis of the allegations made by the appellant in her written statement and that the Family Court was wrong in taking those allegations into consideration for allowing the petition of the respondent. He submitted that the respondent failed to amend his pleadings raising a plea that he suffered cruelty in view of the appellant’s allegations in her written Statement or for that matter in her complaint under section18 498-A of IPC and in the articles published in the newspapers. He then submitted that the respondent has miserably failed to prove the ground of cruelty for seeking divorce. He submitted that after the appellant filed her written statement bringing on record the alleged custom in the family, the respondent ought to have amended his petition to contend that the said allegations amount to cruelty. He submitted that merely because there are allegations made by the appellant in her written statement, a decree of divorce cannot follow unless the spouse seeking divorce amends his pleadings and incorporates that as a aground for constituting cruelty. In support of this contention, he placed reliance upon the judgment of the Supreme Court in Pushpavathi @ Lalitha Vs Manickasamy, 2001 (4) Supreme 581. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

15. In Pushpavathi @ Lalitha’s case, the Supreme Court was dealing with the appeal filed by the wife challenging the orders passed by the courts below. The petition filed by the husband on the ground of cruelty and desertion was ultimately dismissed. While dismissing the petition, in paragraph 5, it was held thus:

“5. 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 facts19 and circumstances of that case. If it is a case of accusations and allegations regard must also be had to the context in which they were made, V.Bhagat v. D.Bhagat (Mrs.). In the present case the husband has not even taken a ground in the memo of appeal that the averments made by the wife constituted mental cruelty. Each and every allegation made against husband by the wife in the written statement defending a petition for divorce filed against her cannot constitute mental cruelty. The decision in V.Bhagat’s case referred by the High Court in reversing the judgment and decree of the first Appellate Court has no relevance in the present case for coming to the conclusion that the allegations made by wife in the written statement constitute mental cruelty. The Court had cautioned in that case that unusual step of granting the divorce was being taken only to clear up the insoluble mess when the Court finds it in the interests of both the parties. The Court also opined that merely because there are allegations and counter-allegations, a decree of divorce cannot follow nor can it follow merely on account of delay in disposal of divorce proceedings. The parties have not lived together as husband-wife for last number of years by itself cannot be a ground for annulling a marriage by granting decree of divorce in absence of the existence of one or the other ground permissible under the Hindu Marriage Act, 1955. It is clear that in this case the marriage has been dissolved and decree of divorce passed by the High Court on the facts on which it was not even sought by the respondent-husband.” (emphasis supplied)

16. In the case before the Supreme Court, it appears that the husband’s petition was initially decreed and the decree was reversed by the District Judge. Against the judgment of the District Judge, the Second Appeal filed by the husband was20 allowed by the High Court and that judgment was set aside by the Supreme Court in the appeal and the order passed by the first appellate court setting aside the decree of divorce was confirmed. It is against this backdrop, the Supreme Court has observed that no plea was made either “in the plaint or in the Memo of Appeal” before the High Court that any allegations made by the wife in the written statement constitute mental cruelty.

17. It is now well settled that the expression “treating the other party with cruelty” in section 13(1)(i-a) of the Act, is wide enough to cover a cruel treatment even subsequent to the filing of the petition by making wild and serious allegations in the written statement which, according to the spouse against whom they are made, are false, baseless, wanton and scandalous, and a decree could be passed based on such allegations. The question is whether such allegations could be relied upon to claim a decree of divorce on the ground of cruelty without amending the petition and contending that those allegations constitute cruelty.

18. In the present case, it is true that no amendment to the pleadings was sought by the respondent after the wild21 allegations were brought on record by the appellant in the written statement to contend that those allegations constitute mental cruelty. But it cannot be overlooked that the respondent had no occasion to raise this plea in appeal since he had no reason to file appeal against the impugned judgment. That apart, it is pertinent to note that the appellant in her deposition has repeated these allegations against the respondent so also cross examined the respondent and his witnesses in respect of these allegations. On the other hand, the respondent while cross examining the appellant and her witness, challenged and denied the allegations about the family custom and put a specific case to the respondent that the criminal complaints and the allegations made by the appellant in the written statement caused harassment to him and his family members and that spoiled their reputation in the society and as a result of the allegations he lost his father. Thus, it cannot be said that it was not the respondent’s case that the allegations in the written statement did not cause cruelty and harassment to him and his family members. We are of the opinion that the amendment of the pleadings in such a situation was not necessary and in the absence thereof the respondent-husband can rely upon the allegations made in the written statement to contend that he and his family members were subjected to cruelty and/or those22 allegations constitute mental cruelty. The judgment of the Supreme Court in Pushpawati Latila’s case, in our opinion, is of no avail to the appellant in view of the peculiar facts and circumstances of the case in hand.

19. This Court in Manisha Sandeep Gade Vs Sandeep Vinayak Gade, 2005 (1) Bom.C.R. 554, while dealing with the question whether the Family Court was right in granting divorce merely on the basis of the allegations made by the appellantwife in her written statement, after referring to the Judgment of the Supreme Court in V Bhagat V D Bhagat, 1994(1) SCC 337, which was also referred by the Supreme court in Pushpavathi @ Lalitha’s case, observed that “where serious allegations are made in pleadings, the consequent irretrievable break down of the marriage (though not a ground by itself) will be a very important circumstance to be considered while deciding whether divorce should be granted or not. Once such serious allegations are made, it becomes clear that there is no chance of parties coming together or living together again. Making of the allegations and yet opposing divorce would mean a resolve to live in agony only to make the life miserable for both the parties.”

The Division Bench further made reference to the following observations made by this court in Jaishree Mohan Otavenkar V. Mohan G.Otavenkar 1987 Mh.L.J.160 :

“the fact that the respondent-husband had made the allegations in his written statement is an admitted fact. Hence, it is not as if the amendment of the petition is an absolute imperative. It was not considered to be very much imperative to incorporate the same in the petition by way of amendment. All that the court was required to see was as to whether the mental torture or cruelty had resulted to the other spouse due to such wanton allegations or not”.

After referring to these observations so also to some other judgments, the Division Bench further observed that “the moment such serious allegations are made in the written statement, it becomes clear that there is an irretrievable break down of the marriage”.

The Division Bench further observed that “when one party to the petition has sought divorce on some ground and the respondent to that petition does not merely defend it to get it defeated, but makes further serious allegations against the petitioner, it becomes a clear step towards the dissolution of the marriage.”

The Division Bench further held that burden to prove allegations in the written statement was on the wife. Once she failed to prove them, and if they are not in consonance with matrimonial relationship, and the husband complained that they have caused him agony, inference that they constitute cruelty has to follow.

20. In the present case, the petitioner has approached the court seeking dissolution of his marriage. It is his case that there is a failure of marriage and he seeks to point it out by invoking a ground available under the law. The respondent, in order to oppose the prayer for divorce, made a counter allegation in the written statement which, in our opinion, clearly show a failure of the marriage. Parties have led their evidence on the allegations made by them in their pleadings. Insofar as the allegations made by the appellant in her written statement are concerned, at no point of time before filing the complaint under section 498-A, were made against the respondent or his family members. The appellant started making such allegations only after the respondent filed the petition for divorce on the ground of cruelty. If these allegations were true, neither the appellant nor her father would have kept quite for such a long time. The learned Judge was right in coming to the conclusion that these allegations were baseless and false. He was, therefore, right in granting the decree of divorce on the ground of cruelty.

21. Even if it is assumed that the allegations made by the appellant in her written statement cannot be relied upon to hold that they constitute cruelty, in our opinion, the allegations made by the respondents in the petition and in his evidence are also sufficient to hold that the ground of cruelty has been proved. The conduct of the appellant clearly shows that she had made the life of the respondent and his family members miserable. The manner in which she used to lodge criminal complaints one after another against the respondent undoubtedly would constitute mental cruelty. We are satisfied that there is no chance of their coming together and living together again and, therefore, their marriage has been rightly dissolved by the trial court under section 13(1)(i-a) of the Hindu Marriage Act.

22. That takes us to consider the issue of Stridhan and the maintenance. The word “Stridhan” includes gifts made to the wife at the time of marriage by her parents, brother, in-laws, husband etc. She is absolute owner of her Stridhan property and she can deal with it in any manner she likes. In the event of divorce or desertion, she is entitled for her Stridhan and her claim in respect thereof, if proved, must be allowed and necessary directions to return the same must be issued by the courts. In the present case, there is no dispute that the certain ornaments were gifted to the appellant by her parents in the marriage, as stated by her in her written statement and in her evidence. The respondent has also deposed that some ornaments were gifted by him at the time of marriage to the appellant. The appellant in her written statement and in her evidence, however, has made reference only to the ornaments/gifts made by her parents as Stridhan. There are six articles, mentioned in paragraph 11(O) of the written statement and in paragraph 23 of her deposition, as Stridhan. She has not claimed ornaments/gifts made by the respondent in the marriage as Stridhan.

According to the respondent, all the ornaments were taken away by her while leaving the house. As against this, the appellant in her examination in chief has deposed that when she left the house the respondent and his relatives removed her all ornaments and refused to return them. This all happened when she last left the matrimonial home in June, 1996. Since then till the complaint under section 498A was filed by her in October, 1997 and/or till she filed the written statement in the present case on 23.6.1998 she did not complain to the police about the alleged removal of her ornaments. The appellant, who had approached police on several occasions, would have definitely approached the police either immediately or atleast within a27 reasonable time and lodged complaint against the respondent and his family members for snatching her all ornaments. It has come in evidence that when she left the house, she left it with her father who was accompanied by his four friends, still no complaint regarding the alleged removal of ornaments was made and she kept quite for almost one and half year. Moreover, though the appellant has deposed that her ornaments were removed by the respondent and his family members, the father of the appellant who was also present with the appellant at that time, has not stated in his deposition about the alleged removal of ornaments. The appellant could have examined an independent witness, viz one of the friends of her father who was present at the relevant time. In our opinion, the appellant has miserably failed to prove that she was not allowed to take away her Stridhan while leaving the house and it is still with the respondent and his family members. Learned counsel for the appellant took us through the relevant portion of the evidence in support of the appellant’s claim regarding Stridhan. However, we are satisfied that there is no evidence on record to hold that the appellant’s stridhan was retained by the respondent when she left the matrimonial home last. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

23. Insofar as maintenance is concerned, the respondent has28 deposed that their joint family is having a shop of gold jewelery and he was partner in the jewelery business of the family. He has also stated that he was having 55% share in the said business but the said shop was closed in 1998 and since then he has been doing repairing work of jewelery from his residence. His income before the shop was closed was Rs.30,000/- per annum and thereafter he started earning 3000-4000 rupees per month by doing repairing work of jewelery. He has stated that he is not in a position to pay the maintenance, as prayed by the appellant. In the cross-examination, he has admitted that there was raid on their shop in December,1996 and that the case filed by the Income Tax department is pending in the Esplanade Court. He has also admitted that he was called upon to pay Rs.seventy five lacs by way of income-tax, which he could not pay and the case is still pending. He has further stated that because of the raid, he had to close his shop. The raid was against him and his partner Dinesh Singhvi. He has admitted in the cross that in the raid 4.1/2kgs gold was found in the shop and the gold is now in the custody of the Income-tax department. He has further explained that he had taken gold from 10-12 persons from the market and that he gave names of those persons to the Income tax department.

Further in the cross-examination, he has admitted that the29 shop by name Nakoda jewellers is standing in his name. This is the same shop which, he was required to close in 1998. He has further admitted that the second shop, by name Sakaria Jewellers, is of his brothers Ramesh and Puranmal. There is yet another shop Amirchand Beharaji, which, according to the appellant, is of his father. He has further admitted that his brother Puranmal has started a new shop, by name Rajendra Jewellers and Mart at Kalbadevi. It is thus clear that except the shop by name Nakoda Jewellers there is no other shop standing in the name of the respondent. The respondent was also asked about other properties standing in the name of different members in the family and their income also. However, that information, in our opinion, would not help the appellant in any manner for seeking enhancement of maintenance from the respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

The appellant, in her deposition, has stated that initially by the judgment and order dated 15.3.1999 the respondent was directed to pay Rs.1500/- pm to herself and Rs.1200/- to her son Aniket. On 20.5.2003, she filed an application for enhancement of maintenance pending the hearing and final disposal of the petition and sought maintenance of Rs.15000/- each for herself and her son. Over and above this, the appellant has not stated30 anything further in her affidavit of evidence on the issue of maintenance. She has not produced any evidence in support of her claim of maintenance of Rs.15,000/- each for herself and her son. In the cross-examination, she denied the case put to her that the enhanced maintenance claimed by her, is exorbitant and that the respondent has no capacity to pay the same. Over and above this, there is no evidence on record about the income of the respondent. It is thus clear that the income of the respondent as per the evidence on record is certainly not sufficient enough to enhance the maintenance, as prayed by the appellant. The evidence shows that after the raid in 1998 the respondent stopped filing Income Tax returns. The appellant has not stated about any other source of income of the respondent. Mr Walawalkar, learned counsel for the respondent, however, submitted that the appellant is prepared to pay little more than what has been awarded by the Family Court and he left that to the court. Keeping that in view and having considered the background of the family from which the respondent comes from and looking to their family business so also his income in 1994, as stated by him, in his examination-inchief, we deem it appropriate to direct the respondent to pay Rs. 5000/- each to the appellant and her son Aniket from the date of this order. This shall not preclude the appellant, if so advised, from seeking enhancement of the maintenance amount in accordance with law.

24. In the result, the appeal is partly allowed. The decree of divorce on the ground of cruelty is confirmed. The appellant’s claim of stridhan is rejected. The respondent shall pay Rs.5000/-each to the appellant and her son Aniket from the date of this order. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

There shall be no order as to costs. Decree be drawn accordingly.

At this stage, learned counsel for the appellant-wife prays for stay of the judgment for a period of eight weeks from today. Learned counsel for the respondent-husband has not opposed the prayer. Instead of granting a stay, as prayed, we are inclined to injunct the respondent-husband from remarrying for a period of eight weeks from today. Order accordingly.

(R.Y.GANOO,J.)

(D.B.BHOSALE,J.)

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

they’ll measure UR b@@ls to see IF U are a good dad !! testicles size may determine parenting skills: Study

‘…."I wouldn’t be surprised if just a few participants in this study fundamentally affected their data because it is a small study," said Aluka, describing the findings as "a stretch"….."

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Size of testicles may determine parenting skills: Study

AFP Sep 10, 2013, 11.12AM IST

(The findings support the…)

GEORGIA: On Monday, a US study measuring fathering habits and testicle size suggested that bigger may not be better when it comes to the day-to-day raising of small children.

The research involved 70 US men of varying ethnicities — most were Caucasian, five were Asian and 15 were African-American. All were the fathers of children aged one to two.


The larger the volume of their testes, the less the men were involved in daily parenting activities like changing diapers, said the study by researchers at Emory University in Georgia.

In comparison, men with smaller testes showed more nurturing activity in the brain when shown pictures of their children, and also were more involved in their children’s upbringing, according to surveys answered separately by both the fathers and their female partners.

All the men in the study were aged 21-55 and lived with the biological mothers of their children. Most were married.

"I wouldn’t want to say that men with large testes are always bad fathers but our data show a tendency for them to be less involved in things like changing diapers, bathing children, preparing meals, taking them to the doctor and things like that," said lead author James Rilling, an associate professor of anthropology.

The study sought to test an evolutionary theory that holds that people and animals are either built to breed or to nurture.

The findings support the notion that human beings have a limited amount of energy to invest in reproductive efforts — either they put energy into producing offspring or into raising it.

"If you invest more energy in parenting you have less available for mating and vice versa," explained Rilling.

Since the testes are where sperm is made, and their size can be linked to the amount produced, the researchers said their study is unique and the first of its kind.

Previous studies have shown a link between high testosterone levels and lower parental involvement as well as divorce and infidelity. The Emory team also analyzed testosterone levels and found the same inverse relationship to parental involvement in their study.

"Other people have looked at testosterone and parental behaviour but as far as we know we are the first to look at testes size and parental behaviour and we think we are getting at something different," said Rilling.

"We are suggesting that men with larger testes are more built for a mating effort strategy and as a consequence are less built for investing in children."

Researchers used functional MRI scans to analyze brain activity when the men were shown pictures of their toddlers and also of strangers’ children.

To assess the men’s daily parenting involvement with their young children, scientists asked the men and their female partners to separately fill out questionnaires.

The volume of the testes was measured in a voluntary MRI scan, to which 55 of the 70 men agreed.

Still, the researchers could not say for sure whether testes size caused the difference in fathering behaviour, or if perhaps the act of becoming a father might have caused the testes to shrink in some men.

Urologist Joseph Aluka, who was not involved in the research, said he commonly sees men with smaller testes in a certain context.

"The guy who comes in with smaller testes is more likely to have greater difficulty with getting his wife pregnant," Aluka, an assistant professor at New York University Urology Associates, told AFP.

If such men end up being more involved as parents, "maybe these guys struggled to have kids and appreciate the experience a little bit more", Aluka said.

"I wouldn’t be surprised if just a few participants in this study fundamentally affected their data because it is a small study," said Aluka, describing the findings as "a stretch".

The study appeared in the Proceedings of the National Academy of Sciences.

http://articles.timesofindia.indiatimes.com/2013-09-10/science/41935939_1_children-female-partners-parenting

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Taunted and tortured 19 years, mumbai doctor finally get ex parte divorce !!

After a decade of harassment, the last 10 or so years the woman did NOT even cohabit with the doc !! and even now he has only obtained an ex parte decree which could be challenged !!!

Still millions of men are queuing up to get married in India !!!

Mumbai doctor granted divorce after wife locks fridge

Rebecca Samervel, TNN | Sep 13, 2013, 01.53 AM IST
Mumbai doctor granted divorce after wife locks fridge
A family court has granted divorce to a doctor couple married for 19 years on grounds of cruelty after he told the court that she had repeatedly insulted him and had denied him food by locking up the refrigerator.

MUMBAI: A family court has granted divorce to a doctor couple married for 19 years on grounds of cruelty after he told the court that she had repeatedly insulted him and had denied him food by locking up the refrigerator.

The court accepted the doctor’s contentions and passed an order ex parte as the estranged wife did not appear in court. The former couple, were married in January 1994 and had no children.

In the petition filed in September, 2011, among many other complaints, the petitioner said that at the time of the marriage, while he was studying medicine in Mumbai, the woman was pursuing her degree in Karnataka. He alleged that during that time, whenever she was in the city, she would insist on staying with him despite him living in the bachelor quarters. He further alleged that she suspected him of having affairs with his colleagues. This he said, forced him to change his campus and eventually even a take a drop from his final year MD examination.

The doctor also alleged that since 2003, the woman refused to work, cook or cohabit with him. He claimed that he had to shut down his hospital due to her "doubtful nature".

Further, he said she started locking the refrigerator and deprived him of any eatables and water and every time he was forced to ask her for the key. The doctor claimed that he could only drive the car if she accompanied him or was using the car.

The petitioner said that he was taunted for looking older than her and she refused to see movies or visit places with him. He alleged that this caused him tremendous mental pain and agony. Stating that her behaviour affected his work, the doctor claimed that female patients got an impression of insecurity while under his treatment.

After going through his evidence, the court held that it was practically identical to his allegations. "As the petitioner was not cross examined due to consistent absence of the respondent, whatever the petitioner has stated in his petition and affidavit of examination-in-chief has gone unchallenged. Therefore, I have no alternative but to accept the same in toto," the court said while granting the divorce.

http://timesofindia.indiatimes.com/city/mumbai/Mumbai-doctor-granted-divorce-after-wife-locks-fridge/articleshow/22528805.cms

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

wife’s side lawyer attacks husband’s dad with a sickle; attempt to murder case filed on advocate

Navaneethakrishnan of Visnathaberi in thirunelveli district got married to selva letchimi of chettur, near rajapalayam approx one and half years ago

The couple are separated and Divorce case is on at Sankaran koil court and alimony / maintenance case is on at Sivagiri court

during the proceedings at Sivagiri court , selvaletchimi side lawyer, Ramesh got into altercations with navaneethakrishnan’s father

He further attacked and cut navaneethakrishnan’s dad with a sickle

A complaint was made to police following the attack and a case of attempt to murder was filed on the advocate

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அரிவாள் வெட்டு: வக்கீ்ல் மீது கொலை முயற்சி வழக்கு

பதிவு செய்த நாள் : செப்டம்பர் 13,2013,10:43 IST

மாற்றம் செய்த நாள் : செப்டம்பர் 13,2013,10:52 IST

திருநெல்வேலி: நெல்லை மாவட்டம் விஸ்நாதபேரியைச் சேர்ந்த நவநீதகிருஷ்ணனுக்கும், ராஜபாளையம் அடுத்த, சேத்தூரைச் சேர்ந்த செல்வலெட்சுமிக்கும் கடந்த ஒன்றரை ஆண்டுகளுக்கு முன் திருமணம் நடந்தது.

கருத்துவேறுபாடால் இருவரும்பிரிந்தனர்.

இதில் சங்கரன் கோவில் கோர்ட்டில் விவகாரத்து வழக்கும், சிவகிரி கோர்ட்டில் ஜீவனாம்ச வழக்கும் நடந்துவருகிறது.

சிவகிரி கோர்‌ட்டில் நடந்த வழக்கின் போது, செல்வலெட்சுமியின் தரப்பு வழக்கீல் ரமேஷ்(35), நவநீதகிருஷ்ணன் தரப்பினருடன் வாய்த்தகராறு செய்தார்.

இதில் நவநீதகிருஷ்ணன், தந்‌தை கண‌ேஷை, வாளால் வெட்டியுள்ளார். இது தொடர்பாக போலீசில் புகார் கூறப்பட்டது.

போலீசார் வக்கீல் ரமேஷ் மீது கொலை முயற்சி வழக்கு பதிவு செய்துள்ளனர்.

http://www.dinamalar.com/news_detail.asp?id=802805

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FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/ FOR 100s of high court and supreme court cases

regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist