Tag Archives: Bombay HC

Hon HC is very concerned that wife’s getting ONLY 84 LAKHS from 498a quash & settlement. ONLY 84 lakhs !

Hon HC says it repeatedly checked with the wife before she agreed to take ONLY 84 lakhs …… before quasing 498a etc cocktail !!

By the way, she filed a 498a cocktail to get the settlement done !!


IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO.1260 OF 2017
1. Nipul Chandravadan Panchal,
Age 40 years, Occ: Architect

2. Mrs. Neela Chandravadan Panchal,
Age 63 years, Occ: Housewife

3. Chandravadan Panchal,
Age 70 years, Occ: No

Residing at 302, Mary Anne Heights, 3rd Road, GPS III, Opp: Cafe-Coffee Day,
Santacruz (East), Mumbai-400 055. …. Petitioners

– Versus –

1. The State of Maharashtra

2. Mrs. Vaishali Nipul Panchal,
Age 36 years, Occ: Service,
R/a Room No.7, Building No.1,
Kangra Bhavan, 232, Dr. Anny
Besent Road, Opp: Potdaar
Hospital, Warli, Mumbai. …. Respondents
Mr. P.R. Yadav i/by Ms Priyanka Dubey for the Petitioners.
Dr. F.R. Shaikh, APP, for the Respondent-State.
Mr. D.V. Saroj for Respondent No.2.
CORAM: S.C. DHARMADHIKARI & PRAKASH D. NAIK, JJ.

DATE : APRIL 07, 2017 ORAL JUDGMENT

(Per Shri S.C. DHARMADHIKARI, J.) :

 

  1. 1. Rule. The respondents waive service. By consent, rule is made returnable forthwith and the petition is taken up for final disposal.
  2. 2. The complainant Vaishali is present in Court. She admits that on 4-6-2015 her statement was recorded by the concerned police station, namely, Vakola Police Station, Mumbai and an FIR was registered. The FIR No.254/2015 alleges offences punishable under Sections 498A, 406, 341, 504, 323 and 34 of the Indian Penal Code.
  3. 3. A request is made by the accused including the husband of the respondent/original complainant to quash this FIR.
  4. 4. The only contention raised in support of this petition is that, this is a fall out of a matrimonial dispute. That discord and dispute led to the husband approaching the Family Court at Bandra, Mumbai with a petition seeking divorce. That petition bearing No.A-1425 of 2015 was later on sought to be converted into a petition and a joint one. The relief was altered to that of a decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955.
  5. 5. Our attention has been invited to the Consent Terms tendered in the Family Court and the altered Consent Terms. Pages 77 to 84 of the paper-book have been perused by us carefully. One of the clauses in the Consent Terms postulates that the sum deposited in the account and mentioned in the Terms cannot be withdrawn by the complainant/wife unless she agrees to quashing of this criminal proceedings.
  6. 6. The nature of this settlement and which prima facie appears to us to be one sided, compelled us to call upon the Advocate appearing for the second respondent/complainant to request her to remain present.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  7. 7. She has remained present and has tendered an affidavit confirming the above arrangement.
  8. 8. She says that she is completely familiar and can speak and equally read and write in English language. She has perused the affidavit. That is drafted as per her instructions and reflects the position correctly.
  9. 9. Though she is not aware of the legal proceedings and provisions, we have sufficiently clarified to her that the affidavit being tendered on record and the prosecution being quashed on the ground that it is purely a private one arising out of a strained matrimonial relationship, then, she would have waived her rights which she has as wife and stated to be voluntarily. We called upon her and repeatedly, whether this arrangement and as reflected in the affidavit is arrived at willingly and her consent is free and unequivocal.
  10. 10. This query was raised by us especially because there are rights of a child, a minor son at the relevant time aged eight years. The custody of this minor son is handed over to the wife. The mother is now going to fend for herself in a City like Mumbai with only a sum of Rs.84 lakhs, that too deposited in the Bank account and as permanent alimony. The same is full and final settlement for all claims of the wife/mother including for permanent alimony. No separate amounts are provided for the child as well.
  11. 11. Upon our limited questioning, she says that she wants an end to all these proceedings and desires to resume her life with her son. She wants nothing more from the in-laws or the husband.
  12. 12. Once she repeatedly says that she is agreeable to the criminal prosecution being quashed and with the above understanding as well, then, we have no alternative but to quash this criminal prosecution which is a fall out of a dispute between the husband and wife, a direct impact after the complaint for domestic violence was lodged, the husband’s petition for Divorce. Then going by this settlement and which is confirmed, we allow the petition. Rule is made absolute in terms of prayer clause (a). No order as to costs.
  13. 13. The consequence being not only the FIR is quashed but even the criminal case and charge-sheet which is filed in the Court of the Metropolitan Magistrate, 71st Court, Bandra, Mumbai.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  14. 14. However, since the complainant/wife says that in the interest of her child as also on account of her lack of faith, trust and love for the husband, the criminal prosecution should be quashed and she is ready for the same, in the event the Family Court’s jurisdiction under Section 26 of the Hindu Marriage Act, 1955 r/w Section 114 of the Code of Civil Procedure, 1908 is invoked for variation or modification of the Terms and particularly the clause for payment, our order passed today quashing the criminal prosecution shall not be an impediment for the Family Court to exercise its jurisdiction and in accordance with law. Clarifying thus, the petition is allowed.

 

(PRAKASH D. NAIK, J.)

(S.C. DHARMADHIKARI, 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 or High court websites. Some notes are made by Vinayak. 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 and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


Aged Mother-in-law, with no income, entitled to claim maintenance from daughter-in-law. Bom HC

Equivalent Citation: 2009(111)BOMLR1831, 2010(1)Crimes1, 2009(4)MhLj665,MANU/MH/0180/2009

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Revision Application No. 86 of 2007
Decided On: 06.03.2009

Appellants: Smt. Saroj W/o Govind Mukkawar
Vs.
Respondent: Smt. Chandrakalabai Polshetwar and The State of Maharashtra

Hon’ble Judges/Coram:
S.S. Shinde, J.

Criminal – Maintenance – Claim of – Entitlement of Mother-in-law – Section 20 of Hindu Adoptions and Maintenance Act, 1956 – Sections 125 and 125(1) of Code of Criminal Procedure, 1973 – Section 125 of Code of Civil Procedure, 1908 – Respondent No. 1 mother-in-law of present applicant – Applicant got job on compassionate grounds on death of her husband – Also received gratuity etc. – Neglected to maintain Respondent No. 1 – Application claiming maintenance filed by Respondent No. 1 – Application dismissed by learned J.M.F.C. on the ground that mother-in-law not entitled to claim maintenance from daughter-in-law under Section 125 Cr.PC – Revision filed by Respondent No. 1 allowed and applicant directed to pay Rs. 1,000/- per month as maintenance to Respondent No. 1 – Hence, present Revision application – Held, at the time of obtaining appointment on compassionate grounds present applicant gave undertaking to support Respondent No. 1 – Deceased only son of Respondent No. 1 – Respondent No. 1 aged person and has no source of income – Respondent No. 1 entitled to claim maintenance from present Applicant – Revision application dismissed

===============================================================

CRIMINAL REVISION APPLICATION NO.86 OF 2007.

Date of decision : 06th MARCH, 2009.

For approval and signature. THE HONOURABLE SHRI JUSTICE S.S. SHINDE.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD.

CRIMINAL REVISION APPLICATION NO.86 OF 2007.

=================================================================

Smt. Saroj w/o Govind Mukkawar, age 39 yrs., occu.service, r/o CIDCO, New Nanded, Dist. Nanded…………. APPLICANT.

VERSUS

  1. Smt. Chandrakalabai Polshetwar age 60 years, occu. nil, r/o CIDCO, New Nanded, Dist. Nanded.
  2. The State of Maharashtra…………. RESPONDENTS

=================================================================
Smt. S.G. Chincholkar, Advocate for applicant.
Shri B.N. Gadegaonkar, Advocate for Respondent No.1.

Shri N.H. Borade, Addl. P.P. for Respondent No.2.

CORAM: S.S. SHINDE, J.

RESERVED ON: 13.02.2009.

PRONOUNCED ON:06.03.2009.

JUDGMENT:

  1. This application is filed praying for quashing and setting aside the judgment and order dated 12.1.2007 passed by the Sessions Judge, Nanded in Criminal Revision Application No.139 of 2006 and restoration of the judgment and order dated 11.8.2005 passed by the J.M.F.C., 2nd Court Nanded in M.C.A. No.177/2004.
  2. The brief facts of the case are as under:. The present respondent no.1 filed Misc. Criminal Application No.177/2004 against the present applicant for maintenance under Section 125 of Cr.P.C. The present applicant is daughter-in-law of respondent no.1 herein. It is the case of the original applicant – respondent no.1 herein that she is widow of 65 years old. Her sole son died on 14.3.1995. Her daughter-in-law got employment in Zilla Parishad on compassionate ground after death of her sole son Venkatesh. The present applicant /petitioner is getting salary of Rs.10,000/- per month. Respondent no.1 herein is unable to maintain herself. The applicant, besides her monthly salary, has received a sum of Rs.1,56,000/- from Zilla Parishad towards gratuity etc. of her deceased husband and thereby she is able to pay separate maintenance. The applicant has driven the present respondent no.1 from her house and thereby refused to maintain her. Therefore, the original applicant -respondent no.1 herein claimed a sum of Rs.1500/-per month towards maintenance.

  3. The learned J.M.F.C. rejected the application of the respondent no.1 herein on the ground that the mother-in-law is not entitled to claim maintenance from her daughter-in-law and said provision does not exist under Section 125 of Cr.P.C.

  4. Being aggrieved, the present respondent no.1 filed criminal Revision Petition No.139 of 2006. The revisional Court framed necessary points for its determination and held that the respondent no.1 herein is entitled for maintenance under Section 125 of C.P.C. and directed the present applicant to pay Rs.1000/-per month the respondent no.1 herein.

  5. Being aggrieved by the said order, the present application is filed by the applicant.

  6. The learned Counsel for the applicant submitted that the application which was filed by respondent no.1 herein was not maintainable under Section 125(1) (d) of Cr.P.C. against the present applicant, who is daughter-in-law of the respondent no.1. The learned Counsel further invited my attention to the reported judgment of the Supreme Court in case of Kirtikant D. Vadodaria v. State of Gujarat and another [(1996) 4 SCC 479] and submitted that in the said judgment the Apex Court has held that the stepmother is not entitled for maintenance. The expression “mother” in section 125(1)(d) of Cr.P.C. means only real or natural mother and does not include stepmother. Stepmother is a distinct and separate entity and cannot be equated with the natural mother who has given birth to the child. The learned Counsel further submitted that the present applicant being daughter-in-law of respondent no.1, the revision application of respondent no.1 should not have been entertained by the revisional Court since it was rightly rejected by the J.M.F.C. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  7. The learned Counsel for respondent no.1 submitted that the son of the respondent no.1 namely Venkatesh, who was husband of the applicant, was working in a school run by Zilla Parishad, Nanded. On 14.3.1995 Venkatesh died and the present applicant received Rs.1,56,000/- towards gratuity etc. and also she got appointment on compassionate ground against service of Venkatesh. The applicant is earning Rs.10,000/- per month. He further submitted that at the time of obtaining said compassionate appointment, the applicant had given an undertaking that she will support the present respondent no.1 – mother-in-law. However, the applicant has not provided any financial assistance to the respondent no.1 and she is residing separately. He further submitted that both the Courts have given a finding that the present applicant is earning Rs.10,000/- per month and neglected to maintain the present respondent no.1. he further submitted that the J.M.F.C. has rejected the application of respondent no.1 only on the ground that the application filed by respondent no.1 against daugter-in-law is not maintainable under Section 125(1)(d) of the Cr.P.C.. He further submitted that the respondent no.1 is old lady, having no source of income, she is surviving on sympathy of her neighbours and is not capable to do any work and to earn her livelihood. He submitted that in the peculiar facts and circumstances of this case, this court may not interfere with the impugned judgment and order passed by the revisional court.

  8. Heard learned Counsel for the parties, perused the contents of the application, annexures thereto and the judgment of the Supreme Court in the case of Kirtikant D. Vadodaria (supra). I am of the considered view that the revision application deserves to be rejected.

  9. Firstly, the respondent no.1 is old lady having age of more than 65 years and the courts below has recorded the findings that she is not able to maintain herself, she has no source of income. It is pertinent to note that Venkatesh was the only son of respondent no.1 who died and the present applicant has been appointed on compassionate ground against service of Venkatesh in the Zilla Parishad, Nanded. It does not fit in the mouth of the applicant that respondent no.1 being her mother-in-law, is not entitled to claim maintenance under Section 125(1)(d) of Cr.P.C. Moreover, as rightly contended by the learned Counsel for respondent no.1 that at the time of obtaining the appointment on compassionate ground, the present applicant had given an undertaking that she will support the present respondent no.1. The deceased Venkatesh being the only son of respondent no.1 and the applicant had got the employment on compassionate ground and she is earning Rs.10,000/-per month, respondent no.1 is rightly held by the revisional Court as entitled to claim separate maintenance at the rate of Rs.1000/- per month from the present applicant.

  10. I have perused the judgment of the Hon’ble Supreme Court in the case of Kirtikant D. Vadodaria (supra). In the peculiar facts and circumstances of that case, the Apex Court came to the conclusion that surviving real and natural born sons who are well to do, the stepmother was not entitled to claim maintenance from stepson. In paragraph 15 of the said judgment, the Supreme Court, while dealing with the benevolent provision and ambit of section 125 of Cr.P.C., observed: “….. Consequently to achieve this object a childless stepmother may claim maintenance from her stepson provided she is a widow or her husband, if living, is also incapable of supporting and maintaining her. The obligation of the son to maintain his father, who is unable to maintain himself, is unquestionable. When she claims maintenance from her natural born children, she does so in her status as their ‘mother’. Such an interpretation would be in accord with the explanation attached to Section 20 of the Hindu Adoptions and Maintenance Act, 1956 because to exclude altogether the personal law applicable to the parties from consideration in matters of maintenance under Section 125 of the Code may not be wholly justified. However, no intention of legislature can be read in Section 125 of the code that even though a mother has her real and natural born son or sons and a husband capable of maintaining her, she could still proceed against her stepson to claim maintenance.”

  11. In that case, the stepmother preferred to claim maintenance only from stepson leaving out her natural born sons and husband who were well to do and, therefore,the Apex Court, in the facts of that case, held that the stepmother is not entitled to claim maintenance from her stepson.

  12. In the present case, it is admitted position that the applicant has secured the employment on the compassionate ground in place of Venkatesh who was the only son of the respondent no.1 and that too, by filing an undertaking that she will take care of respondent no.1. Apart from that, the fact that the respondent no.1 is an old aged person having age of more than 65 years and not able to maintain herself and has no source of livelihood, is not disputed by the applicant herein. The peculiar facts of this case warrants that respondent no.1 is entitled to get maintenance from the present applicant. The revisional Court has recorded the reasons in paragraph 11 and 12 of the judgment and I fully agree with the reasoning given by the revisional Court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  13. In the facts and circumstances of the case, respondent no.1 is entitled for maintenance from the applicant. The learned Counsel for the applicant submitted that in pursuant to the order dated 19th April, 2007, the applicant has deposited some amount in the Court out of the amount which was received towards gratuity etc. The respondent no.1 is entitled to withdraw the said amount from the Court.. The revision application is rejected.

[S.S. SHINDE, J ]

PLK/


*****************************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 or High court websites. Some notes are made by Vinayak. 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 and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


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.

====================

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

    Hiding wife’s mental illness ground for annulling marriage. Bombay HC

    Wife hides mental illness b4 marriage & unable to continue in marriage. Lower court annuls marriage. Bombay HC affirms the same. Even though wife claims (in her WS) that she has disclosed her entire medical file to the husband before marriage, the HC refuses to buy that argument

    Sections referred :

    Section 12(1)(c) in The Hindu Marriage Act, 1955
    Section 25 in The Hindu Marriage Act, 1955
    Section 12 in The Hindu Marriage Act, 1955
    Section 5(ii)(c) in The Hindu Marriage Act, 1955
    Section 5 in The Hindu Marriage Act, 1955


    Bombay High Court

    Vandana J. Kasliwal vs Jitendra N. Kasliwal on 28 September, 2006

    Equivalent citations: AIR 2007 Bom 115, II (2007) DMC 227

    Author: P Borkar
    Bench: N Dabholkar, P Borkar

    JUDGMENT P.R. Borkar, J.

     

    1. 1. This is an appeal, preferred by a wife, whose marriage with the respondent was annulled by the decree passed on 31-3-2004, by the learned Principal Judge, Family Court, Aurangabad, in Petition No. 73 of 2003.
    2. 2. Brief facts leading to the decision may be stated as follows. It is no more disputed that marriage of the appellant and the respondent was solemnized on 5-1-2003 at Aurangabad. The marriage was performed as per the custom in the Digambar Sect of Jainism. The respondent/husband was a graduate and doing service as an accountant. The respondent/husband filed petition for annulment of marriage with averments that as per the custom in the community, the bride wears Parda at the time of marriage. The behaviour of the appellant bride was not normal. However, it was staled that she was sleepless and, therefore, the abnormal behaviour might be a temporary phase.
    3. 3. It is averred that at the time of MuhDekhi ceremony, the bridegroom is supposed to offer some gifts in the form of gold ornament to the bride and when the respondent/husband offered a gold chain to the appellant, she refused to accept the same and behaved in abnormal way. She even refused to give any response to the advances made by the respondent/husband and unbolted the bed-room and joined the sisters of the respondent/husband, which was even a rude shock to the sisters. They pushed the appellant into the bed room again. On the next day, attempts for consummation of marriage made also went in vain. There was a ceremony called “Churma”. She was staring at a fixed point keeping pallu of the sari loose and it was not as per the custom. Her behaviour showed that some thing was being concealed. After three days, the father and sister of the appellant/wife came to take the appellant away. They were informed about the abnormal behaviour of the appellant/wife and to have medical advise. On 8-1-2003, which was the fourth day after the marriage, the respondent/husband and the appellant’s father and sister had taken the appellant to Dr. Barhale. At that time Dr. Barhale asked the father of the appellant/ wife what was new problem and Dr. Barhale also disclosed that already the appellant/ wife was his patient since June, 1997 and the medication was continued. From Dr. Barhale, the respondent/husband and his family came to know that the appellant was suffering from acute schizophrenia which was incurable and categorized as, “acexcerbation.” http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
    4. 4. It was alleged by the respondent/husband, who was original petitioner in the trial Court that the appellant/wife was suffering from Schizophrenia which was incurable. The said fact was suppressed by the appellant’s family. It is also alleged that the marriage was not consummated. With these averments, the petition for annulment of marriage was filed in the Family Court at Aurangabad.
    5. 5. The appellant/wife filed the written statement denying the allegations that the marriage was not consummated or that there was any concealment. It is denied that the appellant was suffering from any mental disease or schizophrenia which is incurable. It is alleged that it was a settled marriage. The appellant/wife was meritorious student throughout her career in school and college. However, due to some mishap in the final year examination of graduation, she failed in one subject and there was some mental stress and, therefore, medical aid was provided to the appellant/wife. But even thereafter, the appellant/wife was serving in private sector in different departments and was getting income and that itself showed that the behaviour of the appellant/wife was very much right and she was not having any mental disorder.
    6. 6. It is further stated in the written statement that the parents of the appellant had given complete understanding about the treatment and illness of the appellant before settling the marriage. They had handed over the entire file of the prescriptions advised by doctors and thereafter only the present respondent/husband had consented for the marriage. It is further contended that on the next day of the marriage itself, the cousin brother of the appellant/ wife had talked with her on telephone and from that time, the respondent/husband and members of his family started making heinous allegations raising doubts about her character and, therefore, the appellant was disturbed, but she still tolerated all the acts and the conduct. She was treated with cruelty and she was forcibly brought to the house of her father. It is because of lust for money and due to doubts regarding character of the appellant/wife, the false petition was filed.
    7. 7. The learned Principal Judge, Family Court, Aurangabad considered the evidence on record, particularly those of two doctors examined and the circumstances of the case and passed the decree of nullity.
    8. 8. The case of the appellant is covered by Section 12(l)(c) of the Hindu Marriage Act, 1955 (for short, “the Act of 1955”). Section 12(1) of the Act of 1955 reads thus: 12. Voidable marriages :– (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely: (a) that the marriage has not been consummated owing to the impotence of the respondent; or (b) that the marriage is in contravention of the condition specified in Clause (ii) of Section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner [was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)] the consent of such guardian was obtained by force [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]. (Emphasis supplied) At the time of the arguments before us, the learned Advocate for the respondent has specifically stated that the case of the respondent is covered by Section 12(1)(c) of the Act of 1955, quoted above.
    9. 9. The learned Advocate for the respondent argued that if we consider the written statement filed by the appellant/wife, it is in three parts. In the first part, mental illness was denied and it is stated that it was a case of temporary mental stress. In the second part, again it is stated that due to failure in the last year examination of graduation, there was mental stress and, therefore, medical aid was given, and that before the marriage, entire file of prescriptions was handed over to the party of bridegroom and, thereafter, consent for the marriage was given. In the last part of the written statement, it is alleged that the reason for filing the petition was the telephonic talk of the appellant/wife with her maternal cousin which gave rise to suspicion and it is added that the lust for money was one of the reasons for giving rise to the petition. We have to consider whether this version can be accepted.
    10. 10. It is worth noting that the marriage was solemnized on 5-1-2003. On 8-1-2003 i.e. on the fourth day, the appellant/wife was taken to Dr. Barhale and she was under treatment for couple of days. So, this short period of 3 to 4 days rules out any possibility for petition being filed out of lust for money. In the written statement, it is stated that for the marriage, the father of the appellant/wife had spent about Rs. 3 to 3.30 lac. So, it is improbable that within such a short period there will be any lust for money and that the money could be the reason for filing the petition. Moreover, it is nowhere stated that any particular sum was demanded or any dissatisfaction was expressed for non-fulfilment of any demand.
    11. 11. It is also argued before us that sofar as the so called suspicion and torture because of the talk of the appellant/wife with her cousin brother on telephone is concerned, it will have to be considered whether it was a plausible and reasonable explanation.
    12. 12. In the trial Court, the respondent/ husband is examined on oath at Exh. 14 and he stated that it was an arranged marriage. One Mr. Gangwal was the mediator. There is nothing on the record to show that the families knew each other prior to the marriage, though both families were residing at Aurangabad at the time of the marriage. The native place of the family of the respondent/husband was Waradi, Tq. Sangamner; whereas the family of the appellant/wife is native of Maliwadgaon. It has also come in the cross-examination that 7 years before the deposition on 2-1-2004, the respondent/husband came to reside at Aurangabad. It is denied that Mr. Gangwal had given any information. It was disclosed that before the marriage, the appellant/wife was serving for 2 to 3 years in some departmental stores. The respondent/husband deposed that no lady member was with them when the respondent’s side had gone to see the appellant/wife. It is also stated that for the first time the respondent/husband saw the appellant on 31-12-2002 and on 5-1-2003 there was marriage. So, within five days the marriage was solemnized. This is relevant while considering fraud by concealment of material fact or circumstance concerning the appellant/wife, within the meaning of Section 12(1)(c) of the Act of 1955.
    13. 13. The parties mainly deposed as per their pleadings. As per the respondent/husband, when they had taken the appellant/ wife to the hospital, at that time the doctor gave him original file. It is denied that prior to the marriage the file of the prescriptions was given to the husband’s sides and that with full knowledge the marriage had taken place. Whereas it is stated by the father of the appellant/wife examined at Exh. 40 that he had handed over the original papers of prescriptions of Dr. Barhale to the father of the respondent and thereafter the proposal for the marriage was accepted. It is argued before us that the name of the doctor was not disclosed prior to filing of the petition. Even, name of Dr. Barhale was not disclosed and that is why, we find, a question put to the appellant Vandana in paragraph 11 of her cross-examination as to whether she was taking treatment of Dr. Patil and she stated that she was not taking treatment of Dr. Patil. This has a relevance to contents of the reply sent which is produced at Exh. 15.
    14. 14. We may consider the evidence of the doctors first. Dr. Anil Kale is examined at Exh, 22. He is specialist in Psychiatry. He stated that the appellant Vandana had come to him for treatment and he gave prescription Exh. 23. He has given treatment for psychosis which is a mental illness. There was change in behaviour and thus before coming to his hospital the appellant Vandana had taken treatment of Dr. Barhale and he had also seen papers of said treatment. Dr. Kale stated that her illness might be due to biological, psychological or environmental causes. He further stated that only once the appellant Vandana had approached his hospital and that he had come to such a conclusion as per the history given by the patient and on her examination. Therefore, we can say that Dr. Anand Kale had no opportunity to examine and observe the behaviour of the appellant Vandana except once. On the other hand, the appellant Vandana had visited Dr. Barhale several times and for long periods.
    15. 15. Dr. Kale has stated in cross-examination that Schizophrenia comes under psychosis and if proper treatment is given, the patient may give response to it. He further stated that if recovery is there, patient is in a position to give marital happiness and/or perform matrimonial obligations. So, this opinion of Dr. Kale is based on one time examination and what is stated is a general proposition that if a patient responds to the treatment and recovers, the patient is in a position to give marital happiness and to perform all matrimonial obligations. Dr. Kale even admitted that when he interviewed, the appellant was under influence of previous medication. This is material when we consider the opinion of doctors, and we find, the evidence of Dr. Barhale more reliable, as Dr. Barhale had several occasions to examine the appellant, observe her behaviour, give her treatment and see the effect of medication prescribed by him. Though, Dr. Kale has stated that torture of a newly married girl, by allegation that she is of a loose character comes under environmental cause, it is still a general proposition, not necessarily applicable to the appellant. It is not the say of Dr. Kale that in the history given to him, the appellant had made out a case of torture and /or of allegations of loose character by her inlaws. It is worth noting that only for three days the appellant lived with the respondent and on the fourth day after marriage she was taken to Dr. Barhale for treatment and this conduct fortifies that there must be abnormal behaviour which led the respondent and the members of his family to take the appellant to a Psychiatrist. It is worth noting that while taking the appellant to Dr. Barhale, the father and the sister of the appellant had accompanied her. Dr. Kale also admitted that the appellant patient was not in a position to giye interview because she was under influence of medication. Therefore, the evidence of Dr. Kale is not much helpful. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
    16. 16. On the other hand, Dr. Vinay Barhale; examined at Exh. 27, has stated that from 30-6-2002, as per the available record, the appellant was under his treatment. It can be said that even before that, the appellant had visited his hospital. The appellant was suffering from Schizophrenia. She was in hospital from 30-6-2002 to 20-7-2002. Dr. Barhale stated that she was admitted; in the hospital due to irritability, uncooperativeness and hostility. He gave medicines and electro convulsive therapy. Dr. Barhale further stated that probably before 5 to 6 years, the appellant had come to him for treatment. Dr. Barhale was shown the discharge card and the prescriptions which were proved at Exhs. 28 to 30. Dr. Barhale has stated that those were the prescriptions for schizophrenia disease and that due to the medicines the symptoms were controlled. He also stated that schizophrenia is a treatable disease. When the appellant approached him from time to time, she was recovered 90 per cent or more and that she could lead the marital life. However, at the same time he stated that Schizophrenia is a continuous disease, which can be kept under control with the help of continuous medicines. So, in that sense, Schizophrenia is incurable disease. Dr. Barhale has specifically stated that schizophrenia is not a curable disease. He further stated that mental distress may be one of the causes for schizophrenia.
    17. 17. The respondent/husband examined his sister Manisha at Exh. 32 to support his case. Manisha has stated that the behaviour of the appellant was not normal. On the 1st night after the marriage when all guests went to sleep and when she, her sister and others were chitchatting in the hall, the appellant had come out of the room and sat with them in the hall. Manisha stated that her sister reached the appellant back to the room.
    18. 18. Appellant Vandana did state in her statement that on fourth day after marriage, there was phone call from her cousin brother. He was making enquiries regarding her and she talked with him for 10 to 15 minutes. The respondent made inquiries with her and then the respondent started suspecting her character. The fourth day was 8-1-2003 after the marriage. It was the day, on which the appellant was taken to Dr. Barhale. So, the story of suspicion due to telephonic talk and the allegations of torture appears to be concocted and false.
    19. 19. In the cross-examination, appellant Vandana has stated that 7 to 8 years prior to recording of her deposition on 21 -2-2004, she was taking treatment of Dr. Barhale and two years before the marriage she was taking treatment for mental illness. Her parents financial condition was weak, so she wanted to do service. As she was not getting good service, she was having mental tension. This falsifies the allegation that false petition was filed by the respondent due to lust of money. The appellant Vandana further stated that she did service for three years, but it was not to her liking and, therefore, she had mental tension. She also admitted that for 8 days she was admitted in the hospital as indoor patient.
    20. 20. The appellant Vandana further stated that one Tarachand Gangwal, who was the mediator, was a friend of her father. She alleged that it was Tarachand Gangwal who had dragged and reached her at the house of her father. She also stated that she had told the respondent regarding the telephonic talk between herself and her brother Pradeep. Then she has specifically admitted that the respondent has not made allegations that she had illicit relations with Pradeep and that (he had not promised that) he would not disclose the same if her father gave more money. This statement made by the appellant clearly falsifies the defence of alleged suspicion and ill-treatment. She has also specifically stated that the respondent or has father did not demand money and that there was no dispute over money.
    21. 21. Taking into consideration all the circumstances, it is very clear that the mental illness, which requires continuous medication and due to which there was irritability, unco-operativeness and hostility on the part of the appellant/wife and which is incurable, is something which is a material fact or the circumstance concurring the present appellant. In the clinical history given at Exh. 31, it was mentioned that the appellant had come to the hospital of Dr. Barhale as she was overtalkative, abusive, irritable, angry, biting to any one, not mixing with people, talking on one topic, crying, shouting, trying to run away, biting to mother, laughing to herself, not working at home. If these were the symptoms of the mental illness, we cannot say that the mental illness of the appellant was a fact, which need not have been disclosed or which was not material. Therefore, concealment of such thing is definitely a fraud within the meaning of Section 12(l)(c) of the Act of 1955. Such bahaviour materially affects the marital life, so also tranquillity and happiness in the home.
    22. 22. The learned Counsel for the respondent cited the case of Smt. Kiran Bala Ashthana v. Bhaire Prasad Shrivastava . In that case, it Is observed that: If it is shown that the facts and circumstances about one of the parties were such that the other party could not have readily consented to marry the other, and there was an element of deception or misrepresentation in bringing about the marriage at the instance of a party, such as to amount to fraud, a Hindu marriage could surely be annulled under Section 12(1)(a) of Hindu Marriage Act, notwithstanding its sacramental character. We agree with the said observations in para 11 in the above case.
    23. 23. In this case, the respondent, who is a normal young man, graduate working as an accountant and earning, would not have consented to marry a girl having background of such mental illness, had he known about the said fact before the marriage. No special reason was disclosed. We are more inclined to believe the words of the respondent/husband that the papers regarding prescriptions and discharge card were handed over to him by Dr. Barhale, rather than by the father of the appellant/wife prior to the marriage. In our opinion, the said theory put forward by the appellant was unnatural and improbable.
    24. 24. Section 12(1)(b) r/w Section 5(ii)(c) of the Act of 1955 was also argued by the learned Counsel for the appellant, but the learned Counsel for the respondent has chosen to restrict his case to Section 12(1)(c) of the Act of 1955, as stated earlier. From the evidence of the appellant Vandana, we can also say that the present case falls under Section 5(ii)(c) r/w Section 12(l)(b) of the Act of 1955, as there were recurring attacks of insanity and the appellant had taken treatment of Dr. Barhale prior to and after the marriage and she was also indoor patient. In this case, the other conditions as laid down in Section 12(2) of the Act of 1955 are satisfied sofar as ground under Section 12(1)(c) of the Act of 1955 is concerned. The petition for annulment was filed on 17-2-2003 and the marriage had taken place on 5-1 -2003. Thus, the petition was filed within one and half months’ of the marriage. This is not a case where the respondent has with his full consent lived with the appellant after the fraud had been discovered.
    25. 25. The case of Raghunath Gopal Daftardar v. Sau Vijaya Raghunath Daftardar is relied upon by the learned Counsel for the appellant. In that case, it is observed that: Mere non-disclosure prior to marriage or concealment of curable epilepsy disease of girl and false representation that she was healthy does not amount to fraud within the meaning of that word used in Section 12(1)(c). It is also observed that: Section 17 of the Indian Contract Act, 1872 does not apply to a case of fraud under Section 12(1)(c) of the Hindu Marriage Act, 1955. In our considered opinion, though marriage is sacrosanct, it requires consent of both spouses or their guardians, if spouses are not capable of giving consent, and it must be a free consent and in that sense, we have to consider whether the consent was given voluntarily. Here aid of definition of fraud, even from the Indian Contract Act, 1872 need not be overlooked and we, therefore, respectfully differ from the view taken by the single Judge in the case of Raghunath Gopal (supra), that mere non-disclosure prior to the marriage or concealment of curable epilepsy disease of girl and false representation that she was healthy does not amount to fraud within the meaning of the word used in Section 12(1)(c) of Hindu Marriage Act, 1955. If regard be had to Section 12(1)(c) of the Act of 1955, it is clear that if a fact or circumstance is so material as to affect decision of giving consent to marriage and if there is fraud regarding the same, may be by express words or even by concealment, then, marriage could be annulled. However, we hasten to make it clear that it is not every fact or circumstance which would be covered by the provision, but it must be substantially something which goes to the root of the matter, which definitely would weigh with any prudent person to change his mind. It must not be easily detectable. The Court would be very circumspect, cautious and pragmatic in identifying such fact or circumstance. In this case, the first part of the written statement itself shows that when query regarding abnormal behaviour of the appellant was made during marriage ceremony, it was stated that it might be because of mental stress due to failure in the examination and for want of sleep. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
    26. 26. We may also refer to a Division Bench judgment of this Court in the case of Chandrakala alias Vandana Subhash Gaokhandkar v. Subhash Dhondiba Gaokhandkar 1994 (2) Mh LR 490. In that case, the wife was suffering from leprosy since prior to marriage, though not virulent and incurable. The said fact was not brought to the notice of the husband before marriage. It was held that there was fraud committed by wife upon the husband and that declaration of annulment of marriage between the husband and the wife under Section 12(1)(c) of Hindu Marriage Act, 1955 was justified. The case, as para 4 discloses, is one of fraud by non-disclosure of material fact, So, in the circumstances of the case, we hold that this is not a case where interference in appeal is called for.
    27. 27. It is argued before us that alimony may be awarded under Section 25 of the Act of 1955. No doubt, the Court while exercising Jurisdiction under Hindu Marriage Act, 1955, may, at the time of passing any decree or at any time subsequent thereto, on application made to it, order maintenance – any such gross sum or such monthly or periodical sum as permanent alimony or maintenance. However, while considering such application, regard has to be made to the respondent’s own income, other property, the income and property of the applicant, the conduct of the parties and other circumstances of the case. In this case, the learned Counsel for the appellant has argued that this Court can pass an order under Section 25 of the Act of 1955. Reliance was placed on the case of Smt. Rajeshbai v. Smt. Shantabai . It is pointed out by the learned Counsel for the respondent that no application for permanent alimony or maintenance was made in the trial Court or in this Court. There was no such issue and, therefore, the parties, particularly the respondent had no opportunity to bring on record the necessary evidence as contemplated by Section 25 of the Act of 1955. The evidence on record does not disclose the income and the abilities of the husband. Therefore, in the absence of necessary evidence and material on record, we give liberty to the appellant to make separate application under Section 25 of the Act of 1955, if so advised. In view of the above circumstances, the appeal must fall.
    28. 28. In the result, appeal is dismissed. The parties are directed to bear their own costs.


    *****************************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 or High court websites. Some notes are made by Vinayak. 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 and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


    CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
    *******************************************************************************

     

    Wife says ” I want to marry an old boyfriend”, husband wins divorce 28 years later !

    Husband goes to USA in search of greener pastures. Wife sends him a nasty latter saying that she wants divorce and wants to get married to her ex boyfriend !! Not only that she NEVER makes any attempt to live with him the next five years. At the court she claims that the letter was a bluff to force him to come back !! The HC grants grants the husband divorce …ableit 28 years later


    Wife’s letter talking of divorce, remarriage an act of cruelty: HC

    Abhinav Garg | TNN | Feb 22, 2016, 03.15 AM IST

    images

    NEW DELHI: A single letter can constitute an act of cruelty, the Delhi high court has said, granting divorce to a man living separately from his estranged wife for the past 28 years.

    The missive in question: a declaration by his angry wife in 1990 when he was stationed abroad that she wanted to divorce him and that she had found an old friend who wanted to marry her and accept her with their young daughter.

    It was only in 1995, when the case came up in trial court, that she admitted the letter didn’t contain a grain of truth and was only meant to jolt the husband out of his complacency. But Justice Najmi Waziri of the high court pointed out the mental agony caused to the husband due to “this sole act of cruelty that continued for a period of 4-5 years”.

    Upholding the decision of the trial court to dissolve the marriage on ground of cruelty, Justice Waziri noted, “For a husband living away from his wife since 1987, to have received a letter from her intimating him about her unequivocal decision to dissolve the marriage and marry another man would have been a pain as grievous as any to endure. Such an element of rejection, coupled with brunt of emotional infidelity by the wife, can break the spirit of the husband to continue marital ties.”

    Challenging the decision in high court, the wife argued that the letter was a “one-off, stray incident and could not be a ground for divorce”. She said it was an act of despair, the letter was written in sheer frustration since she had been waiting for many years to live with her husband again, abroad or back home. There was no friend, no prospect of marriage; in fact, she had made up a fictional name just to “shake up” her husband. Besides, she argued, there was not a single act of violence on her part for the charge of cruelty to pass muster.

    Appearing for the husband, advocate Manjit Singh Ahluwalia countered her argument, saying she did think of divorce as she drew up an affidavit to finalise her legal plan. The high court highlighted that the letter was written in 1990 while the divorce was granted five years later but during this period she never tried to explain to her husband why she had written the latter.

    The high court said the husband would have suffered acute mental agony by the letter “that the wife had found someone to replace him as her husband”. It took into account the stand of the wife that the letter was a mere threat but said its import “could only evoke pain, distress, rejection and self-doubt in any reasonable husband” and termed it as a “telling testimony of cruelty”.

     

    source

    times of India