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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.28 OF 2012
Bhavana N.Shah,
aged about 47 years, Hindu Indian Inhabitant,
Occ.Housewife/Beautician,
residing at c/o.Champaklal Hemchand Shah,
A-204, Shelter C.H.S. Ltd. Ambadi Road,
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), Dist.Thane-401202. ... Appellant
(Ori.Respondent)
Versus
Nitin Chimanlal Shah,
aged about 46 years, Hindu Indian Inhabitant,
residing at 303, Darshan C.H.S.Ltd.
Love Lane, Opp.B.I.T. Chawl,
Mazgaon, Mumbai – 400 010. .... Respondent
(Ori.Petitioner)
AND
FAMILY COURT APPEAL NO.29 OF 2012
WITH
CIVIL APPLICATION NO.41 OF 2012
IN
FAMILY COURT APPEAL NO.29 OF 2012
1. Bhavana N.Shah,
aged about 47 years, Hindu Indian Inhabitant,
Occ.Housewife/Beautician,
residing at c/o.Champaklal Hemchand Shah,
A-204, Shelter C.H.S. Ltd. Ambadi Road,
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), Dist.Thane-401 202.
2.Chi.Palak Nitin Shah,
aged about 19 years, Indian Inhabitant,
residing at C/o.Champaklal Hemchand Shah,
A-204 Shelter C.H.S. Ltd. Ambadi Road,
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SQP
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Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), District Thane-401 202. ... Appellants
(Ori.Petitioners)
Versus
Nitin Chimanlal Shah,
aged about 46 years, Hindu Indian Inhabitant,
residing at 303, Darshan C.H.S.Ltd.
Love Lane, Opp.B.I.T. Chawl,
Mazgaon, Mumbai – 400 010. .... Respondent
…...
Mr.Ajit Karwande for the Appellants.
Respondent-husband present in-person.
…...
CORAM: A.M. KHANWILKAR &
A.R.JOSHI, JJ.
JUDGMENT RESERVED ON : 15TH JUNE, 2012
JUDGMENT PRONOUNCED ON : 21ST JUNE, 2012
JUDGMENT (Per Khanwilkar, J.) :
1. We propose to dispose of both these Appeals together by this
common Judgment.
2. Appeal No.28/2012 is directed against the Judgment and Decree
passed in Petition No.A-1082/2007 dated 1st December, 2011 passed by
Family Court No.VII, Mumbai, whereby, the Family Court allowed the
Petition filed by the respondent-husband for dissolution of marriage and
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divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act,
1955.
3. The other Appeal being Appeal No.29/2012 is also filed by the
wife along with daughter challenging the common Judgment dated 1st
December, 2011 passed by the Family Court No.VII, Mumbai in Petition
No.C-136/06 praying for maintenance and separate residential
accommodation for herself and minor daughter Palak Nitin Shah under
Section 18(2)(a), (b), (g) and 20 of the Hindu Adoptions and Maintenance
Act, 1956.
4. The Family Court by the common Judgment has dismissed the
petition filed by the wife and minor daughter for maintenance and
residential accommodation but has allowed the Petition filed by the
husband for dissolution of marriage and decree of divorce. We would
first examine the challenge to the decree of divorce by the appellant wife.
5. The respondent husband in his Petition filed under Section 13(1)
(ia) and (ib) of the Hindu Marriage Act has stated that the marriage
between the parties took place on 5th February, 1990. They were blessed
with one daughter named Palak. After few years, discord between the
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spouses took place as a result of very rude behaviour of the wife. The
wife was uninterested in domestic work. She picked up quarrels on
unessential matters and created unhealthy atmosphere in the house. The
wife was in the habit of making false, frivolous and concocted allegations
against the husband and his family members. She went to the extent of
making false allegations against the husband having illicit relationship
with his two real sisters. That on 1st June, 2005, the wife left her
matrimonial home on her own and inspite of persuasion by the husband
and his relatives, she refused to join the company of the husband. On the
basis of these allegations, the husband prayed for dissolution of marriage
between the parties solemnized on 5th February, 1990 at Mumbai and the
decree of divorce.
6. The appellant wife filed written statement to oppose the said
Petition. The parties adduced evidence in support of their respective
claim. The Family Court adverting to the relevant evidence and placing
emphasis on the admissions given by the appellant wife in her crossexamination,
accepted the claim of the respondent husband. The Family
Court in the common Judgment has highlighted the admissions of
appellant in her cross-examination wherein she has admitted that she did
not lodge any complaint before police against respondents or his family
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members. Further, she does not have any evidence to show that she was
tortured mentally as well as physically. She admitted that she got her
daughter admitted in Nazareth School without consent of her husband and
she had never discussed with husband about the same. She has also
admitted that the husband and his family members approached her and
tried to convince her to come back to her matrimonial home on two
occasions. She has admitted in the cross-examination that she saw the
illicit relations between her husband and his real sisters. The Family
Court has then considered the admission of appellant's witness PW 2
i.e. daughter Palak. It has then noted that besides the oral admissions of
the appellant and her witness, even the documentary evidence goes
against the appellant. It took into account the pleadings and oral
evidence of the parties, more particularly, in respect of the allegation
about the illicit relations of husband with his sisters. The appellant had
made those allegations in her letters sent to the husband and reiterated the
same in the pleading and also in the oral evidence and justified the same
on the ground that that was her inner feeling. The Family Court,
therefore, opined that the allegations by the appellant wife about illicit
relation between husband and his sister were unsubstantiated and
frivolous. The Family Court has noticed the letters Exhibit 62 and
Exhibit 63, in addition to the stand taken in the written statement as well
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as oral evidence of the appellant. The Family Court on analysis of the
above material then proceeded to authoritatively hold that the wild
allegations made by the wife against the husband about illicit relations
between him and his sisters, coupled with the fact that inspite of attempt
made by the husband and his family members to persuade the appellant
wife to come back to her matrimonial home and resume
cohabitation/conjugal rights, she failed to do so, answered the issue
against the appellant wife and therefore, dissolved the marriage between
the parties on the ground of cruelty within the meaning of Section 13(1)
(ia) and Section 13(1)(ib) of the Hindu Marriage Act. This is the sum
and substance of the finding and the conclusion reached by the Family
Court to answer the matter in issue.
7. We have heard Mr.Karwande for the appellant wife and the
respondent husband who has appeared in-person. No doubt,
Mr.Karwande made strenuous effort to persuade us to take the view that
the common Judgment of the Family Court is completely unsustainable as
it fails to analyse the evidence properly and to record finding of fact in
the context of the separate issue that was required to be answered before
concluding that the petition filed by husband for dissolution of marriage
and divorce deserves to be allowed. The argument is attractive at the first
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blush. However, as aforesaid, the Family Court has adverted to the
substance of the pleading and oral and documentary evidence adduced by
the parties. The Family Court has deduced its conclusion on that basis.
After having perused the relevant pleadings and the evidence on record,
which this Court in appeal is expected to do, the conclusion reached by
the Family Court in dissolving the marriage between the parties and
passing decree of divorce is inevitable. We are inclined to uphold the
order of dissolution of marriage and the decree of divorce.
8. We would first deal with the ground ascribable to Section 13(1)
(ia) of the Hindu Marriage Act. The Family Court has adverted to
different allegations found in the petition filed by the husband. In our
opinion, the decree passed by the Family Court ought to be upheld on the
ground of cruelty considering the fact that the appellant wife in her
communication dated 11th May, 2006 in response to the letters sent by the
respondent husband dated 5th December, 2005 and 11th January, 2006 has
stated about the incidents she had personally noticed indicative of illicit
relations between the respondent husband and his sisters. We refrain
from reproducing those allegations in this Judgment. Suffice it to
mention that the same are serious and disparaging remarks. The
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respondent husband in his petition has pointedly referred to the said
communication, being one of the acts committed by the appellant wife
which had caused immense mental agony and cruelty to him. The
appellant wife in the written statement went on to reiterate those
allegations and gave justification that the letters sent by her on 11th May,
2006 was a privileged communication between the husband and wife.
She has further justified her stand on the ground that she had stated those
facts in the said letter on the basis of “her inner feelings”. This defence is
found in paragraph XIV of the written statement. The husband in his
evidence has reiterated the position that making of such malafide,
reckless and frivolous allegations by the wife constituted severe mental
cruelty to him. Nevertheless, the appellant wife in her oral evidence
(cross-examination) went on to assert that she personally saw the illicit
relations between the respondent husband and his real sisters and she had
written about the same in her communication dated 11th May, 2006 sent to
respondent husband on the basis of her inner feelings. Admittedly, no
contemporaneous evidence has been produced by the appellant wife to
corroborate her version. The facts stated by her in her communication
dated 11th May, 2006 on which she has placed reliance have not been
substantiated by the appellant at all, except her bare words. The making
of such false, frivolous and unsubstantiated allegations against the
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husband in the communication as well as reiterating the same in the
written statement and also in the oral evidence given by the wife before
the Court was bound to cause mental cruelty to the husband. It was
clearly an attempt to sully the reputation not only of the respondent
husband but also of the two sisters who were in the profession of
Medicine and Law respectively. That, by itself, is a good and germane
ground to dissolve the marriage between the parties and to grant decree
of divorce under Section 13(1)(ia) of the Hindu Marriage Act. We need
not deal with the other allegations concerning ground of cruelty. Even the
Family Court has not touched upon those allegations but in substance has
opined that this ground established from the record was sufficient to grant
decree of divorce. In other words, the decree of divorce under Section
13(1)(ia) deserves to be upheld in the fact situation of the present case.
9. The Family Court has also dissolved the marriage between the
parties and granted decree of divorce on the ground under Section 13(1)
(ib) i.e. desertion. As an appellate Court, having upheld the decree of
divorce on one count, which is formidable one and unassailable on any
count, it may not be necessary to dilate on other grounds to sustain the
decree. Be that as it may, we find that even though the Family Court has
not thoroughly analysed the pleadings and evidence on record in the
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context of Section 13(1)(ib), but has certainly referred to the substance of
the pleadings and the evidence. The Family Court has noted that
appellant wife left the matrimonial house on her own on 1st June, 2005
and that inspite of persuasion by the respondent husband and his family
members on two different occasions, she refused to resume
cohabitation/conjugal rights. The fact that she left her matrimonial home
on 1st June, 2005 is admitted by the wife. She has also admitted that after
leaving the matrimonial home, she stayed with her father. Further, she
took away her daughter along with her and got her admitted in Nazareth
School without consulting her husband or informing him about the same.
She has also admitted that the husband and his family members had come
to her on two occasions to convince her to resume cohabitation/conjugal
rights, but she did not go back to her matrimonial house. On the basis of
these admitted facts, the Family Court has granted decree of divorce also
on the ground of desertion under Section 13(1)(ib).
10. As aforesaid, on reading the impugned Judgment, it may appear
that it has straightway jumped to conclusion against the appellant wife.
Notably, the Court has rightly noted the essential factors to constitute the
ground of “desertion”. Such as, factum of separation, intention to bring
cohabitation permanently to an end, the element of persuasion. In the
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communication sent by the wife to the husband and more so in her
pleading and oral evidence before the Court, the appellant wife has given
admission on the above aspects. The fact that the parties separated on 1st
June, 2005 is indisputable. The husband having approached appellant
wife as also his family members on two occasions to persuade the
appellant to resume cohabitation/conjugal rights has been admitted by the
appellant wife. However, she refused to go back. It necessarily follows
that the appellant wife had shown intention to bring cohabitation
permanently to an end. Even persuasion by respondent husband and his
family members did not work with the appellant. She steadfastly refused
to join the matrimonial home. In this backdrop, the finding as well as the
conclusion reached by the Family Court of dissolving the marriage
between the parties and granting decree of divorce under Section 13(1)
(ib) is also unexceptionable.
11. As aforesaid, no interference is warranted with the final order
passed by the Family Court in dissolving the marriage between the parties
and granting decree of divorce on the ground of cruelty and desertion
under Section 13(1)(ia) and 13(1)(ib) in favour of respondent husband
and against the appellant wife.
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12. That takes us to the other Appeal arising out of the dismissal of
Petition filed by the appellant wife, for maintenance and separate residential
accommodation, by the common judgment and decree. Indeed, this Petition
was filed by the appellant wife in earlier point of time. The Petition for
dissolution of marriage and divorce was filed by the husband, during the
pendency of the maintenance petition. The claim in the maintenance petition
was founded on the ground under Section 18(1) and 18(2) (a), (e) and (g). In
other words, appellant wife claimed separate residential accommodation from
her husband without forfeiting her claim of maintenance, on the ground of
desertion by the husband and of abandoning her without reasonable cause and
without her consent or against her wish, or willfully neglecting her. The second
ground was that she was treated with such cruelty as to cause reasonable
apprehension in her mind that it will be harmful or injurious to live with her
husband and, thirdly, that there are other causes justifying living separately. The
Trial Court has examined the subject issues while considering the question of
awarding maintenance amount to the wife and the daughter as well as of
separate residence to the wife, together. Indubitably, these issues were distinct
and were required to be analysed and decided separately. Further, the same
have been disposed of together by cryptic judgment, in the following words:
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“Issue Nos. 1 to 4 (in Petition No. C-136/2006)
22. The evidence is already discussed above. To avoid
repetitions and the issues involved in this case, it is sufficient to
mention that Bhavna(wife) left the matrimonial home on her own.
She took with her minor daughter, who has attained majority today.
She even failed to inform the husband. She admits that she has no
proof of physical or mental cruelty. She has not proved reasonable
cause to reside separately.
23. There is sufficient evidence on record to show that
Nitin(husband) was willing to continue matrimonial relations. He has
made request in writing (Exh 62 and Exh 63) Bhavana (wife) has not
bothered to reply it. Palak (P. W. No. 2) admits that sister of
respondent had come to convince her and mother to come to reside
with them. Bhavana(wife) also admits that on two occasions the
husband and his family members came to bring her back. Sec. 18(1)
of Hindu Adoption and Maintenance Act, 1956 provides wife shall
shall be entitled to be maintained by her husband during her life time.
Sub-clause (2) provides – a Hindu wife shall be entitled to live
separately from her husband without forfeiting her claim to
maintenance:-
a) If he is guilty of desertion,
b) If he has treated her with cruelty,
c) If he is suffering from a virulent from of leprosy,
d) If he has any other wife living,
e) If he keeps a concubine in the same house,
f) If he ceased to be a Hindu by conversion, if there is any other
cause justifying her living separately.
24. The rights and liabilities are co-relative. If any one want
rights, then he has to perform liability. No doubt, the wife is entitled
to live separately for any of the just grounds as provided under sec.
18(2) of The Hindu Adoptions and Maintenance Act, 1956. The
entire evidence on record shows that Bhavana(wife) is at fault. She
herself treated the husband with cruelty. She has deserted him
without reasonable cause. She has failed to prove her claim.
25. The argument (Exh. 86) advanced by wife is mainly
relating to properties or without any factual or legal support. Hence,
need no reply. Therefore, I answer point nos. 3 to 4 in the negative.”
13. In substance, the Family Court was influenced by the fact that, in the
accompanying Petition, it was already found that appellant wife had left the
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matrimonial home on her own, along with her minor daughter and was not
willing to return back, even though the respondent husband was willing to
continue with the matrimonial relation. Thus, the Family Court held that the
appellant wife is dis-entitled from claiming maintenance from her husband. As
regards the maintenance amount payable to daughter Palak, the Family Court
noted that she has attained majority. The fact that she was still unmarried, has
not been reckoned at all. Be that as it may, we are of the considered opinion
that the manner in which the Petition for maintenance and separate residence,
filed by the appellant, has been decided, is undesirable. The Family Court
ought to have analysed the pleadings and evidence in the context of the claim
of maintenance by wife and unmarried daughter, though attained adulthood.
14. The respondent has placed emphasis on the decision of the Rajasthan
High Court in Shimla Devi vs. Kuldeep Sharma AIR 1999 Rajasthan 181. In
that case, the Court proceeded on the finding that the wife was unwilling to
reconcile and resume cohabitation. Notably, the said judgment considered the
correctness of the decision of the Family Court by which the marriage between
the parties came to be dissolved and decree of divorce was passed. The
observations found in Paragraph 7 and 8 of the said decision, on which
emphasis has been placed, will be relevant in the context of the issue of
dissolution of marriage and passing of decree of divorce. Reliance was then
placed on the decision in the case of Deb Narayan Halder vs. Smt. Anushree
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Halder AIR 2003 SC 3174. The Court found that the reasons given by the
wife, about her ill treatment, were non existent and unsubstantiated. The Court
then proceeded to hold that the wife left the matrimonial home without any
justification. On that basis, the Court answered the issue of maintenance under
Section 125 of the Code of Criminal Procedure, which is attracted when the
person, having sufficient means, neglects or refuses to maintain his wife and
unmarried daughter, though they are not able to maintain themselves. Section
18(1) of the Hindu Adoption and Maintenance Act, 1956 bestows right in the
Hindu wife, being entitled to be maintained by her husband during her life
time. Indeed, the opening words of the said Section are of some significance,
which read - “subject to the provisions of this section”. Sub-Section (1) of
Section 18, distinctly deals with issue of maintenance of Hindu wife, by her
husband, during her lifetime. Whereas, Section 18(2) of the Act bestows right
in the Hindu wife to be entitled to live separately from her husband without
forfeiting her claim of maintenance. In the present case, besides the issue of
maintenance of wife, it was necessary to examine the independent claim of the
unmarried daughter – who at the time of institution of the petition was
admittedly minor.
15. As regards the claim of the appellant wife for providing separate
residential accommodation, even if we were to take the view that the Family
Court in substance has found that the appellant wife has not substantiated the
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requirements specified in Clause (a) and Clause (b) of Sub-Section (2), even
then, the Court was obliged to analyse the pleadings and evidence of the parties
in the context of the requirements of Clause (g) of Section 18(2), which entitles
the Hindu wife to live separately from her husband without forfeiting her claim
to maintainance on account of any other cause justifying living separately. That
was one of the ground pressed into service by the appellant for her claim of
separate residence, in her Petition, which is noted even in the opening part of
the Judgment. The Family Court ought to have considered the matter in that
context.
16. On a bare perusal of Section 18, it is amply clear that the sweep of
each requirement under Sub-Section (2) is markedly different. In other words,
each of these causes in clauses (a), (b) and (g), invoked by the appellant wife,
operate in different spheres. It was but appropriate that the Family Court ought
to have analysed the material on record to answer the same independently and
not to jump to a conclusion.
17. Considering the fact that the Family Court has not properly dealt with
the issues of maintenance and separate residence, we deem it appropriate to
quash and set aside the reasons and the conclusion on these two issues, which
have been considered in Petition No. C-136/2006, filed by the wife along with
the daughter. Instead, the parties will have to be relegated before the Family
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Court for reconsideration of the said matter afresh from the stage of oral
arguments, on its own merits, in accordance with law, uninfluenced by any
observation made in the impugned decision on the said issues.
18. We may place on record that we are not specifically touching upon
the arguments canvassed by the parties, in relation to these two issues of grant
of separate residence to wife and maintenance amount payable to the wife and
daughter, unmarrried though. Inasmuch as, any observation made in that
behalf would affect the parties one way or the other. In other words, all the
contentions available to the parties, in Petition No. C-136/2006, are kept open.
19. Accordingly, we proceed to pass the following order:
O R D E R
(1) The Appeal No.28/2012 filed by the wife challenging the
decree of dissolution of marriage between the parties and divorce is
dismissed. Instead, the said decree, passed by the Family Court at
the instance of the respondent/husband, is upheld and maintained.
(2) The Family Court Appeal No.29/2012 is allowed. The
judgment and decree, passed in Petition No. C-136/2006 is quashed
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and set aside. Instead, the parties are relegated before the Principal
Judge, Family Court, Mumbai for reconsideration of the said Petition
afresh from the stage of oral arguments. All questions therein are left
open.
(3) The parties shall appear before the Principal Judge of the
Family Court, Mumbai on 2nd July, 2012, who may take up the said
Petition No.C-135/2006 himself or assign it to any other Judge of the
Family Court at Mumbai for denovo reconsideration from the stage
of arguments. The Concerned Judge shall dispose of the said
Petition expeditiously.
(4) No order as to costs.
(5) In view of the above order, Civil Application stands
disposed of.
(A.R.JOSHI,J.) (A.M.KHANWILKAR,J.)
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