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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. FAMILY COURT APPEAL NO. 206 OF 2014 APPELLANT : (HUSBAND)
Anurag son of Satyanarayanji Bhalotia, Aged about 45 years, Occupation Advocate, Resident of 301, Ghatate Chambers, Panchsheel Square, Nagpur440012 15. ...VERSUS...
RESPONDENT : (ORIGINAL RES)
Sarita wife of Anurag Bhalotia, Aged about 43 YEARS, Resident of Krishnachandji H Khetan, Juni Bhaji Mandi, Kamptee 441002.
Mrs.U.A.Patil, counsel for the appellant. None for the respondent.
CORAM : SMT. VASANTI A NAIK & V.M.DESHPANDE, JJ.
DATED : 21.03.2017
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
By this family court appeal, the appellant challenges the judgment of the Family Court, dated 31.05.2011 dismissing a petition filed by the appellant for a decree of divorce on the ground of cruelty and desertion.
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The parties to this appeal are hereinafter referred to as
Anurag and Sarita for the sake of convenience. The appellantAnurag got married with Sarita on 21.06.1995 at Nagpur and the parties started residing together in the matrimonial home. A daughterPalak was born from the wedlock on 29.08.1996. In the petition filed by Anurag for a decree of divorce on the ground of cruelty and desertion in the year 2006, it is pleaded by him that though he had treated Sarita lovingly and caringly, Sarita did not respond to the same, in a similar fashion. It is pleaded that Sarita used to pollute the mind of Palak, and used to train her against Anurag. It is pleaded that though Anurag had an opportunity to get the L.I.C. agency, he gave up the opportunity only because of Sarita. It is pleaded that Sarita used to wear the ornaments that were not gifted to her. It is pleaded that Sarita did not cover her head with pallu of her saree only with a view to tease Anurag. It was pleaded that Sarita sometimes removed her Mangalsutra and used to wash the vermilion from her forehead though it was necessary for her to retain it. It was pleaded that in view of the proceedings filed by Sarita against him under section 125 of the Code of Criminal Procedure, he was handcuffed by the police and was also sent to jail. It was pleaded that on 02.10.2000, Sarita left the matrimonial home along with Palak with a view to desert Anurag. It is pleaded that despite the efforts of reconciliation, no reconciliation was possible in view of the adamant behaviour of Sarita. On the aforesaid
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pleadings Anurag sought a decree of divorce on the ground of cruelty and desertion.
3.
Sarita filed the written statement and denied the claim of
Anurag. Sarita admitted that she was living at Kamptee in her parental home after 02.10.2000. Sarita denied that she used to remove the Mangalsutra and the vermilion from her forehead with a view to tease Anurag. Sarita denied all the adverse allegations that were levelled by Anurag and pleaded that after some days of the marriage, Anurag had demanded a sum of Rs.1,50,000/ from the parents of Sarita so that he could leave his job at Saunsar and start a business in computers at Nagpur. Sarita pleaded that since her family members could not fulfill the demand, she was illtreated by Anurag and Anurag used to abuse her in a very filthy language. It is pleaded that ultimately Anurag left his job at Saunsar and started residing in Nagpur. It is pleaded that Anurag picked up quarrel with Sarita on 02.10.2000, dragged her to the ground floor from the first floor and threatened her that she should not return to the matrimonial home or else she would be killed. It is pleaded by Sarita that though she was thrown out of the house, she stood at the entrance of Ghatate building with a hope that Anurag would take her to the matrimonial home. It is submitted that she did not only wait at Ghatate building but she also phoned the relatives of
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Anurag at Gandhinagar and Ramdaspeth but they did not come to Panchasheel square to help her. It is pleaded that the husband of her sister fetched her at 2.00 a.m. in the night and she started residing in her parental home since then. It is pleaded that on 03.10.2000, she again went to the matrimonial home with a view to reside with Anurag but he did not permit her to enter into the house. Sarita pleaded that she tried to reconcile the matter through various relatives that are mentioned in the written statement but Anurag was not ready to reside with her. Sarita sought for the dismissal of the family court appeal.
4.
On the aforesaid pleadings of the parties, the Family Court
framed the issues. The parties tendered their oral evidence and examined their witnesses. Certain documents were also produced by the parties on record. On an appreciation of the evidence on record, the Family Court dismissed the petition filed by Anurag. Anurag has challenged the judgment of the Family Court in this appeal.
5.
Mrs. Patil, the learned counsel for Anurag submitted that the
Family Court has not considered the evidence in the right perspective while dismissing the petition filed by him. It is stated that Sarita used to remove the vermilion from her forehead on some occasions and also removed her Mangalsutra with a view to tease Anurag. It is submitted
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that the aforesaid acts on the part of Sarita caused agony to Anurag. It is submitted that after 02.10.2000, Sarita did not make any efforts to reside with Anurag and this shows that Sarita desired to desert Anurag. It is submitted that Sarita used to pollute the mind of Palak against Anurag and the said act on the part of Sarita, has caused great pain and agony to Anurag. It is however fairly stated that there is nothing else either in the pleadings or the evidence of Anurag or any of his family members or neighbours to show that Sarita had treated Anurag with cruelty. It is submitted that in the circumstances of the case, when the parties are residing separately for more than sixteen years, it would be necessary to dissolve the marriage between the parties by a decree of divorce. It is stated that it is not possible for the parties to reside happily in the matrimonial home and, hence a decree of divorce should be passed.
6.
On hearing the learned counsel for Anurag and on a perusal
of the Record and Proceedings, it appears that the following points arise for determination in this Family Court Appeal: I)
Whether Sarita had treated Anurag with cruelty?
II)
Whether Sarita had deserted Anurag?
III)
Whether Anurag is entitled to a decree of divorce on the ground of cruelty and desertion?
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What order?
We have already narrated the pleadings of the parties in the
earlier part of the judgment. Though the petition runs into several pages, there is no other allegation in the petition filed by Anurag against Sarita except the allegations that Sarita used to pollute the mind of Palak against Anurag, that she never used to cover her head under the pallu with a view to tease him and that she sometimes used to remove the vermilion from her forehead and her Mangalsutra. A general allegation that Sarita suffered from an ego problem is also made in the petition. It is pleaded that Sarita had left the matrimonial home on 02.10.2000 with a view to desert Anurag and she had not returned to the matrimonial home. It is pleaded that despite the efforts by Anurag for reconciliation, there was no reconciliation due to the adamant behaviour of Sarita. Apart from this, there is no other pleading in the petition filed by Anurag, seeking a decree of divorce on the ground of cruelty and desertion. Even if we accept the statements made by Anurag in his petition on their face value in respect of the acts of cruelty by Sarita, it cannot be held by any stretch of imagination that Sarita had treated Anurag with cruelty. In the 21 st century, a man would not be entitled to seek a divorce solely on the ground that his wife does not cover her head with the pallu of her saree and sometimes
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removes the Mangalsutra and vermilion from her forehead. A woman cannot be expected to cover her head with a pallu in this century. In any case, that cannot be a ground for divorce. Merely because a woman sometimes removes her Mangalsutra and the vermilion on her forehead, a man cannot seek the severance of the matrimonial ties. Anurag has no other serious complaint against Sarita except the above complaint. It is not pleaded by Anurag that there were constant fights between Anurag and Sarita and it was not possible for him to cohabit with Sarita under one roof. It is not the case of Anurag that Sarita was short tempered or that she constantly fought with Anurag or nagged him. In our view, as rightly held by the Family Court, the act of not covering the head in a pallu and sometimes removing the vermilion from the forehead or the Mangalsutra would not be the acts that would constitute cruelty within the meaning of the term, under the provisions of the Hindu Marriage Act. On a reading of the evidence of Anurag and all the other witnesses examined on his behalf including his relatives and neighbours, it appears that they have not levelled any serious allegation against Sarita. In his evidence, Anurag has praised and glorified himself and has tried to impress upon the Court as to how he is a selfmade man though he had no support from any of his family members, his father having died when he was very young. Anurag has praised himself in his evidence also. He has only tried to point out how
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well he behaved with Sarita and Palak and how good a man he is. However, there is nothing in the evidence of Anurag to show, much less, any evidence narrating any incident that could show that Sarita had treated Anurag with cruelty. Anurag has neither pleaded nor proved, in what manner Sarita had polluted Palak's mind against Anurag and hence the bald allegation made by him cannot be accepted. The mother of Anurag entered into the witness box only to state that Sarita used to like having the food outside the house on some occasions and also loved outing. Unfortunately, this is not the pleading in the petition filed by Anurag. Even if he had pleaded so, that cannot be an act that would constitute cruelty as a young married girl would sometimes like to go for an outing and would like to eat in a restaurant. Though the evidence is enormous in volume, the same signifies nothing. There is no serious allegation against Sarita either in the evidence of Anurag or in the evidence of his witnesses. In the circumstances of the case, it cannot be held that Sarita has treated Anurag with cruelty.
9.
As regards desertion, it is necessary to note that though it
is the case of Anurag that Sarita has left the matrimonial home on 02.10.2000 without any just or reasonable excuse along with Palak, the evidence of Sarita is otherwise. Sarita has pleaded and has also stated in her evidence that she was dragged to the ground floor from the first
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floor and was thrown out of the house by Anurag. She has categorically pleaded and has also stated in her evidence that she waited for a long time in the dead of the night near Ghatate building with a hope that Anurag would take her back to the matrimonial home. She has further stated that though she called up two of the relatives of Anurag to inform them about the said incident, they did not come to help her. She has stated that she left with her sister's husband at 2 O'clock in the night as Anurag was not willing to take her back in the matrimonial home. It is pleaded by Sarita and also stated in her evidence that on the next day, i.e. on 03.10.2000, she went to the matrimonial home with a view to reside with Anurag but, Anurag did not permit her to enter into the matrimonial home. There is evidence on record to show that meetings were held between the parties and their family members with a view to reconcile the matter but, the same could not be reconciled. We have perused the evidence of Anurag and Sarita in detail. We are inclined to accept the evidence of Sarita that she was compelled to leave the matrimonial home on 02.10.2000. It is not possible to believe the case of Anurag that Sarita had deserted him on 02.10.2000 without any just or reasonable excuse. It is not possible that a married woman would simply leave the matrimonial home never to return without any reason. Sarita has not only pleaded but has also proved by her evidence that after she was thrown out of the matrimonial home on 02.10.2000,
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she waited near Ghatate building during the night with a hope that Anurag would take her back in the matrimonial home. It appears that Anurag however did not do so and though she had requested some of the relatives of Anurag to help her, in the hour of difficulty, they did not help her to secure an entry in the matrimonial home or also did not take her to their home. Sarita had to go to Kamptee to her parental home along with her relatives on 02.10.2000. The family court has rightly believed the evidence of Sarita to hold that Sarita did not leave the matrimonial home on her own but she was compelled to leave the matrimonial home on 02.10.2000. It is therefore rightly held by the family court that Sarita had not deserted Anurag. The family court observed that Sarita had never stated in the notices issued by her to Anurag that she was not ready and willing to reside with Anurag in the matrimonial home. The family court found that there was a quarrel between the parties on 02.10.2000 as Sarita's parents could not fulfill the demand of Anurag in respect of establishment of a business in computers in Nagpur and hence Sarita was not permitted to reside in the matrimonial home. The family court, on a consideration of the evidence of Sarita and Anurag and some of his witnesses observed that Sarita was out of the house in the midnight on 02.10.2000 but Anurag did not allow her to enter into the matrimonial home. Though Sarita belongs to a reputed family, she was compelled to stand out of the
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house during midnight. The family court, apart from observing that Sarita had no intention to leave the matrimonial home and that she had not deserted Anurag, observed that Anurag had behaved irrationally even during the pendency of the proceedings before the family court and considering the nature of Anurag which was eccentric and irrational, it was not possible to expect that Sarita would reside with him. We find that the family court was justified in holding in the circumstances of the case that Sarita had not treated Anurag with cruelty and that she had not deserted him. Anurag would not be entitled to a decree of divorce on the ground of cruelty and desertion.
Since there is no scope for interference with the judgment of the family court, we dismiss the family court appeal with no order as to costs.
JUDGE
JUDGE
APTE/KHUNTE
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