Filing false 498a, fake rape on BIL is cruelty !! Husband granted divorce by Bombay HC 

WIFS files fake 498 year, domestic violence, section 125 cocktail on husband… Claims that husband’s brother was about to rape her… The husband’s family is terrified… Husband’s father testifies about the terror… Husband tries to get her back, she refuses and files 498a t… However at the divorce hearing,  she claims that she is ready to live back with a husband to frustrate him …. The family court refuses to grant divorce  to the husband…finally, the honourable  High Court, sees through the wife’s game, and declares that she has treated the husband and his family with cruelty. Husband is granted divorce.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

FAMILY COURT APPEAL NO. 47 OF 2016

APPELLANT :- Vinay S/o Vasantrao Bagde, aged about 37years, Occ. Private Job, resident of Panchadeep Nagar, Wardha Road, Nagpur.
…VERSUS…

RESPONDENT :- ig Sou.Durga W/o Vinay Bagde, aged about 41 years, Occ. Service, resident of C/o Tanajirao Ukey, 187-B, Vina Nagar, Indore, (Madhya Pradesh)


Mr.Masood Shareef & Mr.A.J.Mirza, counsel for the appellant.

Mr.Anil Bambal, counsel for the respondent.


CORAM : SMT. VASANTI A NAIK & V.M.DESHPANDE, JJ.
DATED : 08-09.02.2017
O R A L J U D G M E N T
(Per Smt.Vasanti A Naik, J.)
The family court appeal is ADMITTED and heard finally at the stage of admission with the consent of the learned counsel for the parties.

  1. By this family court appeal, the appellant-husband (hereinafter referred to as ‘the Husband’ for the sake of convenience) 08-902FCA47.16-Judgment 2/17 challenges the judgment of the Family Court, Nagpur, dated 03.02.2016 dismissing a petition filed by him against the respondent-Wife (hereinafter referred to as ‘the Wife’) for a decree of divorce under Section 13(1)(i-a) of the Hindu Marriage Act.
  2. The husband had filed a petition under Section 13(1)(i-a) of the Hindu Marriage Act for a decree of divorce on the ground of cruelty. The marriage was solemnized between the parties on 08.03.2002 at Indore (M.P.), according to Buddhist rights and custom. It is pleaded in the petition by the husband that the wife started residing in the joint family of the husband at Nagpur along with father aged 71 years, his mother aged 60 years and his elder brother who was suffering from mental disorder. It is pleaded that the husband learnt that the wife was elder to him by four years and the said fact was concealed by her at the time of the marriage. It is pleaded that the wife was suffering from epilepsy and the said fact was also not disclosed. It is pleaded that though the husband and his family members treated the wife well and with affection, the wife did not behave properly. It is pleaded that the wife was admitted by the husband in a college to further educate her a per her wish. It is pleaded that in January-2010, the father of the wife came to Nagpur and demanded a sum of Rs.2,00,000/- from the father of the husband and since the husband had showed his inability to pay Rs.2,00,000/- for the construction of the house of the father of the wife, 08-902FCA47.16-Judgment 3/17 the wife became angry and collected her clothes, documents and ornaments and left for Indore along with her father. It is pleaded that the wife is residing along with her parents and her son Bhavesh from 02.02.2010 in her parental home. It is pleaded that though the husband asked the wife to join his company, the wife did not join the same. It is pleaded that the wife filed a false complaint against the husband and his family members under Section 498-A of the Indian Penal Code and the members of the family of the husband had to secure bail. It is pleaded that the wife had harassed the husband and his family members, mentally and financially by filing a false report against them. It is pleaded that the wife also filed the proceedings under Section 125 of the Code of Criminal Procedure and the proceedings under the Protection of Women from Domestic Violence Act, at Indore. It is pleaded that though the wife was not desirous to cohabit with the husband and indeed wanted a divorce, she had filed the proceedings only with a view to harass the husband and his family members. Some other vague allegations are also levelled against the wife to point out that the wife had treated the husband with cruelty.

  3. The wife filed the written statement and denied the claim of the husband. The wife denied all the adverse allegations levelled against her by the husband in her written statement. The wife pleaded that the behaviour of the husband and his family members changed drastically after some days of the marriage. The wife pleaded that the husband was a heavy drunkard and was merciless by nature. It is pleaded that the husband had treated the wife like an animal and she was mercilessly beaten up by the husband under the influence of liquor.

The wife pleaded that she was not permitted to come out of the house and to speak with anyone. It is pleaded by the wife that the father of the husband used to instigate the husband to give illtreatement to the wife till their illegal demand was fulfilled. It is pleaded that the husband and his parents always insulted the father and mother of the wife and stated that her father and mother were Bhikari. It is pleaded that on 28.01.2010, the husband was admitted in the hospital and, hence, the father and the mother of the wife had come from Indore to meet him.

It is pleaded that on 02.02.2010 the husband abused them in filthy language and after insulting them, threw the sarees and suitcases of the wife and her parents out of the house. It is pleaded that the wife was required to lodge a complaint in Sonegaon Police Station on 02.02.2010, after she left the house. It is pleaded that she was residing in the house along with her parents at Indore, after she left the matrimonial home on 02.02.2010. The wife sought for the dismissal of the Hindu Marriage Petition.

  1. The Family Court framed the issues and the parties tendered oral evidence. The husband examined himself and also examined his father and a maidservant who had worked in his house for some time during the stay of the wife. The wife examined herself and closed the evidence on her side. On an appreciation of the material on record, the Family Court dismissed the petition filed by the husband after recording a finding that the husband was unsuccessful in proving that the wife had treated him with cruelty.
  • Shri Shareef, the learned counsel for the husband, submitted that the Family Court was not justified in dismissing the petition filed by the husband. The learned counsel relied on the judgment in the proceedings launched against the husband and his family members for an offence punishable under Section 498-A of the Indian Penal Code.

  • By taking this Court through the said judgment, it is pointed out that the wife had levelled false and baseless allegations against the husband and his family members in the first information report as well as in the written statement in this petition. It is stated that after the complaint was filed by the wife in the police station at Indore, the husband and his family members were harassed both, mentally and financially and were required to secure bail. It is submitted that it could be proved on the basis of the judgment passed in the proceedings under Section 498-A of the Penal Code as also from the evidence tendered by the parties in this case that the wife had levelled false and baseless allegations against the husband and his family members. It is stated that though the husband had admittedly fractured his leg on 29.01.2010 and he was resting in the bed on 02.02.2010, the wife has levelled a false allegation that the husband threw her sarees and her suitcases as also her parents out of the matrimonial home on 02.02.2010. It is stated that it is apparent from the admissions by the wife in her cross-examination that the husband had an injury to his leg on 02.02.2010 and, hence, the case of the wife that she and her parents were thrown out of the matrimonial home on 02.02.2010 along with her sarees and her suitcases is false and baseless. It is submitted that the wife had never lodged a complaint against the husband during her stay in the matrimonial home till 02.02.2010 and on 02.02.2010, though it is stated that she had filed a complaint in the police station at Nagpur, the copy of the complaint is not placed on record. It is submitted that though the wife had left the matrimonial home on 02.02.2010, the complaint for an offence punishable under Section 498-A of the Penal Code is filed by her in the police station at Indore in the second week of July. It is submitted that if the wife was really ill-treated by the husband, she would have immediately lodged a report after she left the matrimonial home on 02.02.2010. It is submitted that this aspect of the matter is not considered by the Family Court in the right perspective to hold that the wife had treated the husband with cruelty. It is submitted that the wife has not only filed a false complaint against the husband but, has also filed a false complaint against his old parents and his elder brother, who was suffering from mental ailment. The learned counsel relied on the judgment reported in 2015(1) Mh.L.J. 900 (Manoj Pate v. Vijaya Pate) to substantiate his submission.

    1. Shri Bambal, the learned counsel for the wife, has supported the judgment of the Family Court. It is submitted that the Family Court has rightly dismissed the petition filed by the husband after observing that the husband has failed to prove that the wife had treated him with cruelty. It is stated that in his cross-examination, the husband had admitted that in the mediation proceedings, the husband had agreed to take back the wife to the matrimonial home. It is stated that the said admission of the husband in the cross-examination would disentitle the husband to a decree of divorce on the ground of cruelty. It is submitted that the husband has not properly pleaded about the mental agony caused to him and his family members due to the filing of a false complaint by the wife for an offence punishable under Section 498-A of the Penal Code. Though the learned counsel admitted that the wife had improved her case in regard to the harassment by the husband and his family members in her evidence tendered in the criminal proceedings, it is stated that the husband has not stated in his examination-in-chief that the evidence of the wife in the criminal proceedings has caused mental agony to him. It is stated that merely because the husband and his family members are acquitted in the criminal proceedings, it cannot be said that the report filed by the wife was false and baseless.
  • On hearing the learned counsel for the parties and on a perusal of the judgment of the Family Court and the Record & Proceedings, it appears that the following points arise for determination in this family court appeal. I) Whether the husband is successful in proving that the wife had treated him with cruelty? II) Whether the husband is entitled to a decree of divorce on the ground of cruelty? III) What order?

  • To answer the aforesaid points for determination, it would be necessary to consider the pleadings of the parties. The pleadings of the husband in respect of the ground of cruelty are very brief. The husband had pleaded that the wife had not disclosed to him before the marraige that she was older than him by four years. It is stated that the wife suffered from epilepsy but, this fact was also not disclosed to him and his family members. It is stated that the wife did not perform her duties in the matrimonial home properly and did not treat his parents well.

  • Apart from the aforesaid allegations, the husband has pleaded that after leaving the matrimonial home on 02.02.2010, the wife had lodged three proceedings against the husband at Indore, where she resided with her parents. According to the husband, the wife had filed the proceedings 08-902FCA47.16-Judgment 9/17 against him for maintenance under Section 125 of the Code of Criminal Procedure, she had filed proceedings against him under the provisions of the Protection of Women from Domestic Violence Act, seeking a direction that she should be provided with a violence-free atmosphere in the matrimonial home and had also filed a false complaint against the husband, his parents and his elder brother in the police station at Indore for an offence punishable under Section 498-A of the Penal Code. According to the husband, he and his family members had to secure bail in view of the lodging of the false police complaint against them, at Indore. The husband has pleaded that the husband and his family members were harassed mentally and financially due to the filing of the false complaint against them. The husband pleaded that the filing of the false, frivolous and vexatious proceedings against the husband and his family members has caused great harassment to them.

    1. The wife denied the claim of the husband and had pleaded that she had left the matrimonial home on 02.02.2010 as the husband threw her sarees, suitcases and also threw her and her parents out of the matrimonial home on the said date. The wife had pleaded that the husband was a heavy drunkard and he used to beat her and treat her like an animal after he was in an inebriated state. The wife denied that that she had filed a false complaint in the police station at Indore.
  • In our view, the Family Court has rightly held that the husband was unsuccessful in proving that the wife was four years older than him and that she had not disclosed this fact prior to the solemnization of the marriage as there is no cogent evidence in this regard. The Family Court has also rightly disbelieved the case of the husband that the wife suffered from epilepsy as there are no medical reports in this regard. The Family Court rightly held that to prove that the wife was suffering from epilepsy, some cogent evidence, in the nature of medical reports should have been placed on record by the husband to show that the wife suffered from epilepsy. The allegations levelled by the husband against the wife in regard to her ill-behaviour in the matrimonial home and that she did not perform her duties, are extremely vague and general. No specific instances are provided by the husband in the petition to show that in what manner, the wife was treating the husband and his family members with cruelty.

  • It would now be necessary to consider whether the husband is successful in proving that the wife had treated him and his family members with cruelty by lodging a false complaint in respect of an offence punishable under Section 498-A of the Penal Code. We have perused the first information report lodged by the wife in the police station at Indore, that is Exhibit 44. In the first information report filed by the wife in the police station at Indore, she had stated that the 08-902FCA47.16-Judgment 11/17 husband used to be under the influence of liquor and used to treat the wife like an animal. The wife had pleaded that the husband and his family members had demanded a sum of Rs.50,000/- from her parents.

  • The wife had stated in the complaint that her father-in-law used to abuse her and her mother-in-law asked her not to return to the matrimonial home till she fulfilled the demand. The wife had stated that the elder brother of the husband also was not behaving properly with her. The wife had stated in the complaint that her belongings were thrown out of the house by the husband on 02.02.2010 and that she and her parents were driven out of the matrimonial home. Similar pleadings find place in the written statement of the wife in this case also. We have perused the judgment in the criminal proceedings. On a perusal of the same, it appears that the wife has improved her case while tendering the evidence in those proceedings and has levelled extremely serious allegations against the husband and his family members. It appears from the jdugment in the criminal proceedings that the wife had stated in her evidence in the criminal proceedings that the elder brother of the husband always threatened that he would rape her. The wife has stated that the elder brother of the husband had caught hold of her hand on several occasions in her bedroom. The wife has further stated in those proceedings, as we can find from the judgment in the criminal proceedings that the husband used to dump her in the refridgerator and also used to throw her down the staircase. No doubt, this is not the case of the wife in the present proceedings. This was also not the case of the wife in the first information report lodged by her in the police station at Indore. The wife had left the matrimonial home on 02.02.2010 and lodged the police complaint at Indore several months later, in the second week of July-2010. Had the husband and his family members really treated the wife with such cruelty as is contemplated by the provisions of Section 498-A of the Penal Code, the wife would have filed a complaint against her husband and her in-laws immediately after leaving the matrimonial home. At least, there should have been some material for proving that she had made any complaint in regard to such inhumane behaviour by the husband and his family members during her stay in the matrimonial home for nearly eight years. In the instant case, the husband has examined the maidservant, who was working in the house for some time during the stay of the wife in the matrimonial home. The said witness has supported the case of the husband that the wife was never treated badly in the matrimonial home. In the cross-examination, though a tricky question was put to the maidservant as to why she did not ask the husband to refrain from drinking, the maidservant had stated that she had never seen the husband in an inebriated condition and, hence, there was no reason to tell him so. Except the bare words of the wife in her examination-in-chief that she was beaten by the husband when he was in an inebriated state and she was treated like an animal, there is nothing on record to support her case. The complaint allegedly filed by her in the police station at Nagpur on the date on which she had left the matrimonial home is not placed on record by her. In fact, the wife admitted in her cross-examination that she had infomred in the police station at Nagpur on 02.02.2010 that no action should be taken against her husband as there was an injury to his leg.

    It is unbelievable that a husband who had fractured his leg on 29.01.2010 and was confined to the bed on 02.02.2010 would throw all the belongings of the wife along with her suitcases out of the house and also throw her and her parents out of the house. This is surely an exaggeration and the statement is unbelievable. It may be true that there must be some fight between the husband on one hand and the wife and her parents on the other on 02.02.2010, as a result of which the wife has left the matrimonial home but, the case of the wife that the husband who had fractured his leg and was on the bed, had thrown her belongings out of the house and also threw her and her parents out of the matrimonial home, appears to be false and baseless. It is apparent from a reading of the evidence of the parties that the wife has failed to prove that on 02.02.2010, the husband threw the belongings of the wife along with her suitcases out of the house and had also driven the wife and her parents out of the matrimonial home. Admittedly, when the husband had fractured his leg and was unable to move about, as is admitted by the wife in the cross-examination, the husband could not have thrown the wife, her parents and the wife’s belongings out of the matrimonial house on 02.02.2010, as pleaded by the wife. On the said day i.e., 02.02.2010, the husband’s parents were not in the matrimonial home as they had gone to Madhya Pradesh. On an appreciation of the evidence on record, we find that the evidence of the husband is more weighty than the evidence of the wife. The case of the wife about the manner in which she had left the matrimonial home on 02.02.2010 is unbelievable. It appears that the wife has not pointed out the true and correct facts to the court. There was no complaint by the wife against the husband for nearly eight years. It is not her case that she had informed her parents or relatives about the behaviour of the husband either by communications or orally during her stay in the matrimonial home for 8 years. If the husband was really treating her like an animal, there would have been some material on record to show that the husband was really beating the wife after getting drunk. There is no complaint by the wife about the husband even to her parents or her relatives till she left the matrimonial house on 02.02.2010. After staying in the company of the husband for more than eight years, the wife has for the first time, lodged a complaint against the husband in July, 2010 after leaving the house on 02.02.2010. We find that the filing of the complaint against the husband and his parents appears to be an afterthought. The husband and his family members are acquitted in the criminal trial. We find that the wife had levelled false allegation against her husband and her in-laws in the complaint filed by her in the police station at Indore in July, 2010 and it appears that the said complaint was filed with a view to intimidate the husband and his family members. The father of the wife was a police officer in Indore. If the wife really wanted to stay in the company of the husband, as she has stated in the written statement, the wife should not have filed a false complaint against the husband and his family members. It has come in the evidence of the parties that the mother of the husband was staying away from the matrimonial home, as she was working in a school in Madhya Pradesh. Though the mother of the husband was not residing in the matrimonial home, the complaint was lodged by the wife against her mother-in-law also. The complaint was lodged by the wife against the old father-in-law, who was more than 70 years of age. The wife has also made serious allegations against the brother-in-law in the criminal proceedings though in the present proceedings the wife had not levelled any allegation against him. We find that extremely serious allegations were levelled by the wife against the husband and his family members in the evidence tendered by her before the criminal court as could be seen from the judgment of the trial court in the criminal proceedings. If the husband was treating the wife like an animal, how could the wife express her desire in the written statement and her evidence to return to the matrimonial home, without putting the husband to terms. We find that the wife had filed a false complaint against her husband and her in-laws. The husband has clearly pleaded and proved that the filing of the false complaint by the wife against him in respect of the offence punishable under section 498-A of the Penal Code has caused mental and financial harassment to the husband and his family members. It appears that the husband and his family members were required to secure orders for bail after the wife lodged the false report against the husband and his family members. It is held by this Court time and again that filing of false complaints by the wife against the husband for the offence punishable under section 498-A of the Penal Code, would tantamount to cruelty. Though the husband has stated in his cross-

    examination that in the mediation proceedings he was ready to take back the wife to the matrimonial home, he has stated in his examination-in-chief as also in his cross-examination that he was not ready to cohabit with the wife. The father of the husband has stated in his cross-examination that since the wife has caused great mental trauma to them in view of the filing of the false proceedings under section 498-A of the Penal Code, the wife should not return to the matrimonial home. The father of the husband has expressed a fear that if the wife is permitted to return to the matrimonial home, they would constantly be under fear that she would again lodge a false complaint against the husband the family members thereby putting them in serious difficulty. The Family Court did not consider the aspect in respect of filing of the false complaint by the wife in the right 08-902FCA47.16-Judgment 17/17 perspective while dismissing the petition filed by the husband. The husband is successful in proving that the wife had treated him with cruelty.

    1. Hence, for the reasons aforesaid, the family court appeal is allowed. The judgment of the Family Court is set aside. The petition filed by the husband for a decree of divorce under section 13(1)(i-a) of the Hindu Marriage Act is allowed. The marriage solemnized between the parties on 08/03/2002 is dissolved by decree of divorce. No costs.
      JUDGE
      JUDGE

    APTE/KHUNTE

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