Observing that there is a marked distinction between “infertility” and “impotency”, the Bombay High Court on Monday set aside a divorce order passed by a family court in 1994. A division bench of Justices AM Khanwilkar and AR Joshi on Monday quashed the order of the Pune family court, which had granted divorce to the husband (then 42 years old) on the grounds that the wife (then 45 years old) was impotent. Section 12(1) (a) of the Hindu Marriages Act contemplates divorce on the grounds of impotency. The wife challenged the divorce order in the HC. Setting aside the divorce, the HC observed that the family court had erred in equating infertility with impotency. “The family court had held that inability to give birth to a child presupposed that the woman is impotent. This view taken by the family court is erroneous and it is wrong in accepting infertility of a woman equivalent to her impotency,” the bench said. The judges also shot down the reasoning of the family judge, which presupposed that “the wife is impotent merely because she could not give birth to a child even after more than 16 years of marriage”. “We must say that the family court had definitely committed an error in arriving at such a conclusion – thus treating impotency and infertility on a par, ignoring various decisions on this aspect,” the bench said. The Hindu Marriages Act allows dissolution of marriage if the petitioner – husband— succeeds in proving that the marriage was not consummated at all owing to the impotency of the wife. The judges have further added in the order: “In the present case there is no pleading nor any proof that the marriage has not been ‘consummated’ much less owing to the impotency of the wife or for that matter her relative impotency.” Even though the couple had jobs wherein both were transferred and were living in different cities, the two co-habited for sufficient time. “In our view, though for most of the period after the marriage the spouses were staying separately, they had a joint stay occasionally and had definitely cohabited/consummated the marriage though unfortunately the wife could not give birth to any child,” observed high court.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.100 OF 1996
Sou. Pramila Shankar Ghante, ]
Age : 45 years, Occ.Service, ]
R. No.2, Behind Laxmi Departmenta
Stores, Alandi Road, Kalaz, ]
Pune 15. ] ..APPELLANT
Shri Shankar Vishwanath Ghante, ]
Age : 42 years, Occ.Service, ]
R/o Plot No.191, Phulewadi, ]
The House of Shri Desai, ]
Kolhapur 416 410. ] ..RESPONDENT
Mr. Y.S. Bhate, for the Appellant.
Mr. M. S. Karnik, a/w. Dilip Bodake, for the Respondent.
CORAM : A.M. KHANWILKAR, &
A.R. JOSHI, JJ.
DATE OF RESERVING
THE JUDGMENT : 21st JUNE, 2012
DATE OF PRONOUNCEMENT
OF JUDGMENT : 23rd JULY, 2012.
ORAL JUDGMENT : (Per A.R. Joshi,J.)
1. The appellant/wife challenged the judgment and decree passed by the Family Court, Pune allowing the M.J. Petition No.565/1992 of the respondent/husband. The appellant/wife is the earlier respondent in the said M.J. Petition and present respondent/husband was the original petitioner who filed the petition for nullity of the marriage and alternatively for a decree of divorce on various grounds. For the sake of clarity, the parties are being referred to as the “wife and husband” while deciding the present Family Court
Appeal preferred by the wife.
2. Heard rival arguments canvassed on the earlier dates. Perused the record and proceedings including the depositions of the witnesses examined by the rival parties. This is an appeal filed by the wife challenging :
the judgment and decree of nullity under Section 12 of the Hindu Marriage Act on the ground of impotency under Section 12(1)(a), and also the judgment and decree of divorce on the ground of cruelty and desertion under Section 13(1)(ia)(ib) of the Hindu Marriage Act.
3. M.J. Petition No.565/1992 was filed by the husband for nullity and alternatively for divorce. M.J. Petition No.272/1993 was filed by the wife for restitution of conjugal rights. Both the petitions were jointly heard and decided by a common judgment and order dated 31.10.1994 passed by the Family Judge, Pune. By the said common judgment, the marriage between the parties was annulled and also alternatively divorce was granted to the husband. The petition for restitution of conjugal rights preferred by the wife was dismissed.
4. It is rather a disturbing state of affair that there is laws delay. This Family Court Appeal has reached final hearing after about 18 years of the dissolution of marriage. The spouses then in the year 1992 were 42 years (husband) and 45 years (wife), when the petitions were filed. However, presently both the parties have become or about to become senior citizens.
5. Coming to the arguments advanced on behalf of the wife, following points – as emphasized in the Family Court Appeal and during the arguments, are summarized to have proper perspective of the present matter. The said points are as under :
(i) there is an error committed by the trial Court in holding that the marriage between the spouses was not consummated due to impotency of the wife;
(ii) there is an error in holding that the wife treated the husband in cruel manner inasmuch as she denied her company to the husband and thereby caused desertion and separation from him by not cohabiting with him at his places of service;
(iii) it is erroneous for the trial Court to hold that the wife is impotent merely because she could not give birth to any child even after more than 16 years of wedlock;
(iv) it is erroneous on the part of the trial Court to hold that the wife had practiced mental cruelty on the husband by alleging that he was staying with another woman during the subsistence of his first marriage and out of such relations that another woman gave birth to a child, and subsequently wife took back the said allegations;
6. Prior to analyzing the material available before the Family Court for deciding the Petition of the husband and the petition of the wife, the relevant law under which the impugned judgment and decree was passed by the Family Court is mentioned and then the material available so also the findings of the Family Court will be critically examined.
7. The Family Court had annulled the marriage between the parties by decree of nullity on the ground of impotency of wife under Section 12(1)(a) of the Hindu Marriage Act, 1955. Said section reads as under :“ 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
8. Strangely enough the alternate relief by way of decree of divorce was also granted by the Family Court on the ground of cruelty and desertion practiced by the wife, thus holding the material available sufficient to prove the requirements of Section 13(1)(ia)( ib) of the Hindu Marriage Act, 1955. The said relevant sections are as under :
“13. Divorce. — (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse;
(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
9. On going through the substantive evidence of the rival parties and their witnesses what is held by the Family Court so far as the prayer for nullity of the marriage is that the impotency of the wife has been proved by the husband, as she was incapable of procreation.
What is held by the Family Court, is that, inability to give birth to a child presupposes that the woman is impotent and as such a valid ground as contemplated by Section 12(1)(a) of the Hindu Marriage Act, 1955. Considering the catena of judgments, some of which are cited before us by the parties, it must be said that the view taken by the Family Court is erroneous and the Family Court guided itself by wrong principles in accepting infertility of a woman equivalent to her impotency.
10. We have gone through the detailed analysis done by the Family Court while deciding point No.1 on the point of impotency. Such discussion is appearing in paragraph Nos.23 to 29 and in all these paras a great deal of effort has been made by the Family Court in coming to the conclusion that wife is impotent.
11. In para25 the Family Court after quoting arguments on behalf of the husband observed that even after 16 years of the marriage, there was no issue out of the wedlock and this itself is sufficient to establish that the wife is impotent and unable to give satisfaction to the husband. This argument advanced on behalf of the husband was accepted by the Family Court by specifically reiterating the same in para26 of the judgment. In coming to this conclusion as to impotency of the wife, the Family Court has further observed, on the conduct of the wife not staying with her husband at his places of work, that “otherwise she would have left her service and went to the service places of the husband and given him every satisfaction. But she refused to tender resignation of her service and go to her husband to give him full satisfaction as a wife.” Even in same para26 in the later part the trial Court has observed after discussing the evidence regarding the medical treatment given to the wife by Dr. Umranikar at Pune during the year 19841986, that the wife is unable to produce children even after 17 years of marriage and thus this fact itself is crystal clear that she is impotent. We must say that the Family Court had definitely committed an error in arriving at such a conclusion – thus treating
impotency and infertility at par, ignoring various decisions on this aspect.
12. On the above aspect of impotency so also on the aspect of relative impotency, following decisions are cited before us by the learned Advocate Shri Y.S. Bhate appearing for the wife.
i. 1994 MLJ 1513
[V. (Wife) vs. S. (Husband) ]
ii. AIR 2009 CALCUTTA 278
[Samir Adhikary vs. Krishna Adhikary]
13. In the case of V. v. S. (supra), the Division Bench of this Court has observed on the aspect of impotency and sterility by quoting the passage from Modi’s Textbook on Medical Jurisprudence and Toxicology, Twenty-first Edition. The said observations are as under : “Impotence is defined as physical incapacity of
accomplishing the sexual act, while sterility means inability for procreation of children. Impotence in males is the persistent inability to develop or maintain a penile creation sufficient to conclude coitus to orgasm and ejaculation. It
should be remembered that the term impotence or sexual incapacity in forensic medicine connotes physical incapacity to accomplish the sex act.
Impotence has been described in Halsbury’s Laws of England to be such a state of mental or physical condition which makes consummation of the marriage a practical impossibility.
An impotent individual need not necessarily be sterile, nor a sterile individual impotent, though both conditions may sometimes be combined in the same individual.”
14. Placing reliance on the same authority V. v. S. (supra), the learned Advocate Mr. Karnik for the husband argued on the aspect of relative impotency. During the arguments, he submitted that the wife was suffering from relative impotency so far as the husband inasmuch as she refused cohabitation with him on the pretext of having another place of abode due to her service. During the arguments, learned Advocate Shri Karnik invited our attention to the observations of the Division Bench of this Court in V. v. S. (supra). Said observations are reproduced with advantage as under :“
While dealing with cases of impotency the predominant consideration is not physical incapacity which courts are often guided by, but another all important angle, namely, the fact that non consummation of marriage, could be due to several circumstances which contribute to a situation whereby both the spouses, though physically and mentally potent in the normal sense, find it impossible to achieve a satisfactory sexual relationship. The concept of relative impotency which prescribes that a person suffering from no handicap whatever still feels inhibited or incompetent visavis the particular sexual partner is now an accepted ground for a decree in a matrimonial Court.”
15. Though it is not specifically mentioned in the petition for nullity and divorce filed by the husband that it was ground of relative impotency of the wife, during arguments learned Advocate Shri Karnik for the husband took us through the pleadings in the Marriage Petition No.565/1992 and appearing in para No.6(b). The said pleadings are in vernacular Marathi and said contents are to the effect that after the marriage which was performed on 25.3.1976 when the wife came to reside with the petitioner/husband at his Pune residence, it was noticed by the petitioner/husband that she was not interested in giving physical satisfaction to the husband and as such it was perceived by the husband that she was incapable in giving such physical satisfaction.
16. There is no doubt that even the relative impotency can be a ground for dissolution of marriage at the option of the aggrieved spouse. However, in the context of Section 12(1)(a), the marriage should be voidable and can be annulled by a decree of nullity only if the petitioner-husband succeeds in proving that the marriage was not consummated at all owing to the impotency of the wife. Be that as it may, in the present case there is no pleading nor any proof that the marriage in fact has not been “consummated” much less owing to the impotency of the wife or for that matter her relative impotency. The
pleading and evidence at best would support or substantiate the fact that the wife was incapable of giving birth to a child.
17. In the another case of Samir Adhikary Vs. Krishna Adhikary (supra), it is observed in para-20 as under :- “20. In other words, the legislature has not prescribed infertility of a spouse as a ground for annulling the marriage if such spouse is capable of being a party to normal coitus. Although according to some of the dictionaries, the allegation of impotence is attributable only to men, the Hindu Marriage Act has, however, adopted the broader view that even a wife can be impotent if she is unable to be a party to normal coitus. As pointed out by the Supreme Court in the case of Yuvraj Digvijay Singh v. Yuvrani Pratap Kumari, reported in AIR 1970 SC 137, a party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. In the case before us, normal sexual intercourse between the parties having been admitted by the husband, the marriage should be held to have been duly consummated and thus, the cases cannot come within the purview of Section 12(1)(a) of the Act, for the mere infertility of the wife.”
18. Bearing in mind the ratio propounded by the above authorities and the admitted position as to infertility not mentioned as a ground for annulment of the marriage, it must be said that on the facts established before the Family Court, there was nothing brought on record by the husband that his wife was impotent inasmuch as incapable of consummation of the marriage and incapable of complete sexual intercourse. On this aspect, we have gone through the substantive evidence of the husband wherein he had admitted that
during 4.9.1981 till 7.7.1982 he and his wife resided together on every Saturday, Sunday. He further deposed that from 4.9.1981 the wife was
transferred to Loni Kalbhor at Pune and thereafter in the year 1984 she was transferred to Kalas and remained there till the filing of the petition by the husband. During that period the wife was residing at her place of service. Further in his evidence the respondent has stated that he started service in the year 1977 in State Excise Department, Bombay and after three months, he was transferred to Pune. On 7.7.1982 he was tranferred to Rajguru Nagar. On 11.4.1986 he was trasnferred to Kherdi, Chiplun, District – Ratnagiri. On 3.7.1989 he was transferred to Kolhapur and thereafter he resided at Baramatiand all along he was residing at his service places. According to him, only for few days he resided with his wife at Loni Kalbhor and thereafter there was no joint residence of the spouces. During the cross-examination, the husband answered that the wife was under medical treatment of Dr.Umranikar
during 1984 to 1986 and in January 1986 she was operated and after operation she did not come back to him and continued staying at Kalamb. He also accepted the position during the cross-examination that he had not produced any document to show her medical treatment regarding “impotency”. Further, he has accepted that he had no evidence to show her mental disorder He had further accepted that at the time of marriage, his wife had already completed B.A. & B.Ed. Courses and after marriage she completed M.A. when she was at Satara and it happened after two years of the marriage. He denied the suggestion put to him that he took initiative for his wife’s admission in Shivaji University for M.A. course and that he was present at the time of filling-up of the forms for the examination. However, the fact still remains that she had completed her M.A. after the marriage and definitely there was no quarrel or denial by the husband for his wife to continue her education for M.A.. In the later part of his crossexamination, the husband had also agreed that he has no medical evidence to show her infertility. Moreover, he had not produced the
details as to cruelty caused by his wife.
19. In our view, this substantive evidence of the husband has not been appreciated by the Family Court in proper perspective and the Court had erred in holding that there was a valid ground available to the husband regarding impotency of the wife resulting in non-consummation of the marriage, in terms of Section 12(1)(a) of the Act.
20. So far as the alternate relief of grant of decree of divorce on the ground of cruelty and desertion, broadly following points were raised on behalf of the husband :
[i.] the wife deceived the petitioner by not giving her real birth date at the time of marriage;
[ii.] the wife did not cohabit with the husband since immediately after the marriage and resided at the places of her service though allegedly she agreed to leave her job after the marriage and to stay with the husband. This has resulted in the desertion and consequentially amounts to mental cruelty due to withholding the cohabitation. In the alternatively it is the submission of the
husband that the wife was not able to give sexual satisfaction to her husband inasmuch she was relatively impotent vis-a-vis the husband;
[iii.] the wife had made wild allegations that the husband has contracted second marriage and out of the said second marriage the second wife gave birth to a child. Subsequently, she withdrew the said allegations and as such this conduct of the wife amounts to mental cruelty on the husband;
[iv] the wife made complaint to the employer of the husband somewhere in late 1991 regarding conduct of the husband and thereafter withdrew the same thus causing mental harassment and cruelty to the husband.
21. So far as point No.(i) is concerned, reverting to the argument advanced on behalf of the husband about the false information given by the wife regarding her age, it is alleged on behalf of the husband that at the time of contracting of the marriage, the correct birth date of the wife was not disclosed to the husband and it was with intention and ulterior motive and thus amounts to deception. It is further submitted that only in May, 1992 he knew that his wife
was three years elder than him and on that day he visited the place of service of his wife and found out her correct birth date from the entry in the service-book and knew that the date of birth of wife is 24.10.1947. Though, during the arguments much is argued by learned Advocate Shri Karnik as to this alleged deception, there is nothing brought on record as to any custom prevailing in the community to which spouses belong that the bride should necessarily be younger in age than the bride-groom. Moreover this aspect has been dealt with
by the Family Court mentioning that such a plea of deception raised by the husband is barred due to laches on his part as raising this objection after about 16 years. At any rate this ground would be unavailable to dissolve the marriage, as having caused mental cruelty to the husband.
We do not find any merit in the argument advanced on behalf of the husband as to alleged deception practiced by the wife by not giving her real birth date at the time of marriage.
22. So far as point No.[ii] is concerned, after going through the reasoning given by the Family Court in the impugned judgment, we find that the Family Court had lost sight of the factual position and the material brought on record by both the sides and especially by the wife that there was reasonable ground for her to be at her place of service. In our considered view, though for most of the period after the marriage the spouses were staying at their respective places of service, they had a joint stay occasionally and had definitely cohabited / consummated the marriage though unfortunately the wife could not give birth to any child out of such cohabitation. In order to arrive at this conclusion, we have gone through the substantive evidence of the parties and as specifically
mentioned earlier as to admissions on behalf of the husband that on every Saturday & Sunday during the period during September, 1981 to July, 1982 the husband and wife resided together. This admission is appearing in the notes of evidence in examination-in-chief itself in the middle of para no.1.
23. At the cost of repetition, it must be mentioned that there are no specific pleadings in the divorce petition filed by the husband specifically mentioning the ground of relative impotency of the wife and as earlier mentioned there is only a mention that after the marriage when the wife came to reside with him, it was noticed by him that she was not interested in giving physical satisfaction to him and then it was perceived by him that she was incapable of giving such physical satisfaction. Moreover, it was tried to be argued on behalf of the
husband that due to such alleged relative impotency of the wife for not
giving physical satisfaction, cruelty was practiced on him, thus, attracting the provisions of Section 13(1)(i-a) of the Hindu Marriage Act for dissolution of marriage. Notably, the evidence adduced by the husband is focused on the fact that the wife was not capable of procreating a child. The fact of relative impotency is the bare allegation of the husband, which has not been substantiated. Further, the evidence suggests that the wife was given treatment for giving birth to a child and not for curing the problem of relative impotency as such.
Indisputably, even after the stated unsuccessful medical treatment given to the wife, the parties continued their relationship. That would mean the husband condoned the so called cruelty caused to him due to the relative impotency of the wife. Taking any view of the matter, therefore, the husband has not substantiated the ground of cruelty owing to the relative impotency of the wife.
24. So far as point No.[iii] is concerned, there is material on record produced by the wife by way of copy of the birth certificate of a child who was begotten by one Kalpana, with whom the husband has married during the subsistence of his first marriage with the appellant/wife. The said birth certificate was shown to the husband during his cross-examination and he admitted that the said certificate show the name – `Shankar Vishwanath Ghante’ as father of the child.
Significantly enough, the name of the present respondent/husband is `Shankar Vishwanath Ghante’. Definitely this factual position is more than a sheer coincidence. Though, on this aspect it is argued on behalf of the husband that the said birth certificate has not been proved by the wife as per the Evidence Act, we are not impressed by this argument in view of the settled position of law that degree of proof in matrimonial matters is considerably diluted and general rule of corroboration and supportive evidence etc. are mellowed down. Further, section 14 of the Family Courts Act, 1984 is a complete answer to this argument and more so when the respondent/husband did not object to exhibition of this certificate by the Family Court. Similar view has been taken in the case of V. vs. S (supra) by the Division Bench of this Court. Moreover,
though subsequently the wife withdrew the said allegations and even offered the husband to have liberty to stay with said second wife –
Kalpana and also to have marital relations with the appellant, this conduct in itself cannot be treated as a mental cruelty caused to the husband. In other words, withdrawal of the allegations as to contracting second marriage with another woman cannot be taken as false and frivolous allegation made by the wife and on this aspect the Family Court had erred in appreciating the substantive evidence of the wife and her witnesses as to under what circumstances she withdrew the allegations. Admittedly, as per the evidence of the wife as there were talks of amicable settlement such step of withdrawal of the complaint was taken by the wife. That version seems to be probable one.
However, this fact has been overlooked by the Family Court.
25. So far as point No.[iv] is concerned, it has come on record that after mutual understanding and after the assurance was given by the husband that he will give back the ornaments (stridhan) of the wife and arrange for residential accommodation to her, she withdrew the said complaint. Moreover during the cross-examination the husband has agreed to behave cordially with the wife and such statement he made before Mr. Shingare and as such wife took her complaint back in September, 1991. This substantive evidence of husband dilutes this second argument as to wife practiced mental cruelty by making
allegedly false allegations against him. Apparently, according to the wife, knowing serious consequences of her complaint as to possibility of her husband losing Government service, she withdrew the complaint.
As such, it cannot be said that she had made false and fictitious complaint with the office of the husband. Considering the evidence of the rival parties, the argument on behalf of the husband that such withdrawal of the complaint by the wife amounts to false allegation made without any basis or substance and thus causing mental harassment and cruelty, cannot be sustained.
26. Now, we will discuss as to the effect of the authorities cited on behalf of the husband. Our attention is drawn towards the ratios propounded by the following authorities, as to on the point of impotency of the spouse being a ground for divorce and third one on the point of non-cohabitation amounting to cruelty :
i. AIR 1982 BOM. 400 [P. v. K.]
ii. 1969(2) SCC 279 [Yuvraj Digvijay Sinhji v. Yuvrani Pratap Kumari]
iii. 2002(3) ALL MR 945 (S.C.)
[Praveen Mehta v. Inderjit Mehta]
27. So far as the first two authorities are concerned, at the cost of repetition, we must say that impotency is one of the grounds for nullity of the marriage in view of Section 12(1)(a) of the Hindu Marriage Act, 1955. However, there is a marked distinction between infertility and impotency. In the absence of any material on record showing the impotency, or to be more specific, frigidity of the wife so as to render the consummation of the marriage impossible, it cannot be said that the provisions of Section 12(1)(a) of the Hindu Marriage Act
28. So far as the ratio of the authority Praveen Mehta v. Inderjit Mehta (supra) is concerned, it must be said that on distinct facts in the present matter at hand, it cannot be said that non-cohabitation of a spouse will always amount to cruelty contemplated by Section 13(1) (i-a) of the Hindu Marriage Act, 1955. The substantive evidence brought before the Family Court clearly establishes that there was consummation of marriage; and at least for some period immediately after the marriage and even within the span of two years prior to the alleged separation of the spouses there was cohabitation between the
parties. In that view of the matter, even the ground of desertion under Section 13(1)(i-b) is not available.
29. We shall now revert to the argument of the wife that keeping in mind the purport of Section 23 of the Hindu Marriage Act, in the facts of the present case the husband has dis-entitled himself for grant of any relief. Section 23 envisages that if the petitioner has taken advantage of his own wrong, no relief should be granted to him. In the present case, having found that the husband has failed to substantiate any of the grounds – be it for annulment of the marriage under Section 12(1)(a) or under Section 13(1)(i-a) or (i-b) – it is not necessary to dilate on the basis of effect of Section 23 of the Act.
30. Inspite of above legal factual position, the Family Court had not appreciated the evidence in proper perspective and had committed an error in accepting the case on both the grounds for nullity and dissolution of marriage by divorce.
31. Considering the material on record and the grounds invoked for nullity or dissolution of marriage, it has become necessary to interfere with the impugned judgment and decree of nullity of marriage and alternatively dissolution by decree of divorce. Said impugned judgment and decree is accordingly set aside with following order :
:: O R D E R ::
(i) Family Court Appeal No.100 of 1996 is allowed.
(ii) The impugned judgment and decree dated 31st October, 1994 in Petition No.565 of 1992 passed by the Judge, Family Court, Pune is quashed and set aside. Instead, the Petition No.565 of 1992 filed by the husband is dismissed with costs quantified at Rs.10,000/- to be paid to the wife forthwith.
(iii) Decree be drawn up accordingly.
(A. R. JOSHI, J.) (A.M. KHANWILKAR, J.)
In one of its Judgments, Bombay High Court’s Justice Roshan Dalvi asked the mother to quit her job and stay with her child to get the custody. The Mother is not residing with the child, as the child is in Sangli with her parents. The mother is in Lonavala for Job. Whereas the father of the child resides only 35kms from the parental house of the child’s mother. In these circumstances, if the custody is given to the mother who stays in Lonavala then the father would not get access comfortably. But if she gives undertaking that she will quit the job only then the custody would be preferable as the Father also will access the child comfortably.
pls find below the Full Judgement.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
WRIT PETITION NO.4086 OF 2012
Savita Sachin Patil …Petitioner
Sachin Suresh Patil …Respondent
Mr. Haribhau Deshinge i/b. Mr. Vijay Killedar,
Advocate for the Petitioner
Ms. Preeti B. Walimbe, Advocate for the Respondent
CORAM : MRS. ROSHAN DALVI, J.
DATED : 18TH JULY, 2012
1. The Petitioner wife has challenged the order of District Judge, IV, Sangli dated 10th February 2012, which was passed upon her application for interim custody of her minor child Nikhil. The parties have been married since 2007. The child was born in 2008. The parties separated since 2010. A complaint under Section 498A came to be filed on 9th April 2010. The wife had left the matrimonial home with the child and was living with her parents in their village. She has claimed that since January 2011 the husband had forcibly taken the child. The wife claims that thereafter the husband represented
to her that the child should stay with him for some days and has
thereafter kept custody of the child with him after she delivered
the child to him. The wife accepted the plea of the husband to
avoid further controversy, but whenever she called upon him to
deliver back the child, he on some pretext or the other failed to
2. The father has applied for the custody of the child in the trial Court. This itself shows that the father did not have custody prior to the application. The child has remained with the father pending the application.
3. The mother took out the application for interim custody of the child on 20th August 2011. In the impugned order the learned Judge has not considered the merits of the matter. He has neither accepted, nor rejected her application on the ground of delay of 8 months. He has found no urgency to deal with the application for interim custody filed by the mother of the child. He has observed that the application would be heard along with the main petition and the custody of the minor son Nikhil would be continued to be with the father till the decision is taken on merits.
4. The Counsel on behalf of the Respondent has contended that the writ petition does not lie because an appeal is maintainable under Section 43 of the Guardian and Wards Act, 1890. That would be after the interim custody application is either accepted or rejected. Counsel has argued that the fact that the custody of the minor child is to be continued with the husband, shows the order of rejection.
5. I find that the contention is incorrect in view of the
observation of the learned Judge in the impugned order that the
application would be decided with the main Petition. Consequently, only a writ petition would be maintainable.
6. It is contended in the writ petition that the mother does not live with her own parents at her parental home. She lives separately in Lonawala where she has procured an employment. That aspect is admitted by the mother of the child. However, the mother claims that she is prepared to give up her job and take custody of the child by residing with her parents in her parental home. She has also stated to Court that in the alternative, her mother is prepared to live with her in Lonawala.
7. Considering an application of custody of a child of 4 years by the mother is a fragile matter. The Court requires to consider such an application with the child’s interest at the tender age. The urgency or lack of urgency in an application upon any delay may be rightly considered by any Civil Court or even a Family Court in a dispute between the parties themselves who are adults. The order of access applied for by the mother is not granted by the Court upon considering the rights of the mother.
It is granted upon considering the rights as well as the welfare of
the child to have access to his own mother and to be in custody
of the mother. A child of such tender years is even under the
statutory provision contained in Section 6 of the Hindu Minority
and Guardianship Act, 1956 required to be ordinarily given to the mother. Consequently, urgency is implicit in an application
filed by a mother, no matter whatever the previous circumstances.
8. In this case the father has contended that the mother left
the child with her own parents and has gone to another village.
The allegations of adultery are also made. The father has
contended that thereafter the parents of his wife themselves left
the child with him. It may be mentioned that the contention of
the mother stands to reason and would have to be accepted.
Considering the fact that the main Petition itself has been filed
on 3rd January 2011, the contention of the Respondent that after
filing the petition for custody the custody voluntarily came to
him is rather difficult to accept.
9. Under these circumstances I considered it appropriate to meet the child as well as the father, mother and the grandfathers of the child. The maternal grandfather has not been able to attend as he is from Sangli. The father as well as the mother have attended before the Court. The father has also brought with him the paternal grandparents of the child as also the child. The child is of too tender an age to be interviewed. The child has been allowed to meet his mother during the course of the afternoon session of this Court. Over a period of time the child has gone to the mother, played with the mother and has been comfortable with the mother despite a long lapse of 1½ years during which the child was deprived of the love or care of the mother for whatever reasons.
10. The mother of the child who is present in Court undertakes
to the Court that she will leave her employment in Lonawala and go to her parental residence to be with the child after she gets the interim custody claimed by her. The mother also states that in the alternative her own mother will come to live with her in Lonawala so that she can continue her employment.
11. It is seen that the father lives near Sangli at the distance
of only 35 Kms from the parental home of the mother. If the mother is to be given custody of the child, the father must obtain access comfortably. If the Petitioner mother lives in Lonawala that would not be possible. Hence, the mother cannot be allowed to live in Lonawala and claim even interim custody of the child. She would then only be entitled to access at the convenience of the parties and the child. Under these circumstances, the mother gives an undertaking to the Court that she would leave her employment and go to her parental
residence after she gets interim custody.
12. Her undertaking is accepted. The mother shall submit her
resignation and show the Court that fact. The mother shall also
file a written undertaking in the above terms.
13. S.O to 24th July 2012 in Chambers at 2.30 p.m. The father shall bring the child to Court on the next date of hearing.
(MRS. ROSHAN DALVI, J.)
Wife stayed a mere 7 days at the matrimonial home, refused to leave her job in Bihar, move with hubby at Calcutta………wife was only interested in Her job and refused to live in the matrimonial home…desertion decreed !!
Hindu Marriage Act 1955
Calcutta High Court
Dilip Kumar Biswas vs Susmita Biswas on 27 January, 1995
Equivalent citations: II (1995) DMC 255
Author: R Bhattacharyya
Bench: S Mookherjee, R Bhattacharyya
Rabin Bhattacharyya, J.
1. This appeal is directed against the judgment and order passed by the learned 12th Court of Additional District Judge at Alipore in Matrimonial Suit No. 45 of 1989, allowing the dismissal of the suit on contest with costs when this appeal for reversal of the judgment and decree.
2. Through the medium of this Appeal, the husband-appellant seeks to challenge the judgment and decree passed by the learned Court below in Matrimonial Suit No. 45 of 1989.
3. The respondent is an employee under the State of Bihar, who had undergone a marriage with the appellant on 26.2.82, according to Hindu rites, in Calcutta. After the solemnisation of marriage, both the spouses lived together as husband and wife, the duration of which never skipped over 7 days. The appellant made ceaseless endeavour to bring her back from the State of Bihar for due performance of conjugal obligations; but the respondent turned a deaf ear to the entreaties of the husband-appellant. Even, the husband-appellant had to rush to Bihar with the object of including her to matrimonial life. The respondent was inexorable in her attitude and kept her fingers crossed to perform conjugal obligation. Letters passed between the parties which did not fetch any result, though swelled in number. The appellant, thus, became the victim of desertion for the calculated move of the respondent as she did not agree to his request. In the predicament, the appellant-husband had to rush to Court to secure relief under Section 13(1)(ib) of the Hindu Marriage Act, 1955.
4. The wife-respondent forestalled the claim of the husband in her written statement. Her matrimonial action did never countenance any hostility. She was a votary of martial life which she never desired to rupture. But the sole and the whole object of marriage was to appropriate her income by her husband, the appellant, which the wife-respondent could not bear. She did not commit any matrimonial misconduct as he was all eager to perform conjugal obligations, although, there was disparity of income between the appellant and the respondent.
5. The learned Court below framed 5 issues and dismissed the suit holding that the desertion has not been proved, when this Appeal for reversal of the judgment and decree. The point that fell for decision of the Court in appeal is, if the conduct reflected by the respondent constituted desertion.
6. A considerable amount of debate ensued as to the desertion alleged by the husband and denied by the wife who lives far behind the marital home. But we are of the view that there is no scope for debate, since there is no pitfall in the legislation and the judicial precedents verging on desertion galore.
7. Mr. Bhattacharjee has developed a sensitive argument that the evidence both latent and patent is so overwhelming which warrants a decree in favour of the appellant-husband. To gain ground of his claim, he has taken us through the plaint, written statement, evidence and the judgment. According to him, marriage was an idle parade as would be evident from the evidence and circumstances. To enrich his claim he has candidly submitted with all force that the respondent is an employee of the Bihar State Government but that does not stand as an insurmountable bar to perform conjugal obligations. It is glaring from the evidence of the parties that the respondent spent 7 days in the marital home out of these long years. She is sought to have exploited the service, as the spring board, to thwart the claim of her husband.
8. The explanation furnished by the respondent is unwholesome. The finding of the learned Court below, as argued, that the appellant knew at the time of marriage that she was an employee of Bihar State Government may be a weighy factor to stay away from marital home at Narkel Danga within Calcutta. The above, at any rate, affords no irresistible conclusion that marital obligation could be kept suspended or adjourned for all time to come. Such obligation cannot be sacrificed at the altar of service.
9. It is apposite to mention that she admitted that she could avail herself of two and half months vacation or leave. Apart from that, she has casual leave etc. In the background of the accepted testimonies, she could live with him in the marital home. The question of reciprocity would have been of immense consequence has she been little alive to conjugal life.
10. It is suggestive of the fact that she had no honest intention to perform the conjugal obligations even during leave or at any point of time. At least, some part of the conjugal obligations could have been accomplished during leave or holidays of each year had she been diligent and sincere in her effort to keep the pecker up. Cohabitation was, therefore, brought permanently to an end.
11. The long plea of the respondent, as argued by Mr. Bhattacharjee, that she would not be available to Calcutta for performance of conjugal duties as found by the learned Court below for service at Bihar does not fit in within the evidence and circumstances. Resignation from service would certainly become an extraneous factor should she spend the holidays or leave with her husband.
12. Mr. Chowdhury, has argued with much emphasis that the petition filed by appellant-husband for desired relief is devoid of intention to desertion disentitling her to relief. We cannot pursuade ourselves to agree to the submission of Mr. Chowdhury, as paragraphs 3, 5, 6, 8 and 9 to the petition for relief unfurl with certitude the intention of the respondent to bring the cohabitation to its permanent end. The word desertion might not have been sued in the petition for relief but its presence is found in the body of the petition itself.
However, we extract paragraph 5 which inspires confidence about the intention of the wife-respondent to bring the marital life to an end:
that after one year back when the respondent did not turn up at the house of the petitioner then the petitioner himself went to the respondent and requested her to come and live with the petitioner to maintain conjugal life also but the respondent again states that she will come very soon.
13. The passage extracted from the petition proves in no uncertain terms that the respondent had least intention to resume marital life which was alive only for 7 days.
14. Mr. Bhattacharjee has next contended that the respondent has cultivated a convenient plea that the appellant had much passion for her money than her. According to record, she was a woman of means. He has submitted that the finding of the learned Court below about the Exts. ‘A to CI’ are wholly untenable. The Exts. only flush the insatiable longing of the husband to meet with her wife and to lead a conjugal life in Calcutta which the wife-respondent did not allow to succeed. The plea that he was more after her income to maintain his family is a ruse. We have gone through the letters with rapt attention but we are unable to find from them that the fetters were written solely and wholly for remitting money by her to the appellant-husband. There are other tangible matters which should not escape the attention of the Court among which the performing of conjugal obligation in Calcutta was one. It also transpires from the Exts. and the evidence that only paltry sum was sent by her to the appellant-husband and there was no evidence on record that tons of money were sent from Bihar to Calcutta to spend the livelihood of the appellant-husband which included amongst others-his family members.
15. P.W. 1 never disputed in his evidence that he did not receive any money from her. Exts. ‘E & D’ prove such receipt of money from her.
16. We are of the view, upon hearing both the learned Counsel, that a wrong interpretation has been made by the learned Court below about those exhibits. The exhibits, both overtly and covertly, prove that idea behind resignation could never be attributed to exploit her pecuniary sources or pecuniary ability. The Exhibits ensure with accuracy that the appellant requested the respondent to provide him with some money where revival of conjugal obligation longed for was not a claptrap. Nor they stand on different pedestal.
17. May be in Exhibit A/2, he asked for accommodation but that does not sound for a moment that the appellant ever wanted to bargain the marital relationship with pecuniary assistance. Even, Ext. 1/3 does not provide any tangible material that he wanted to engulf the income of her wife. To assure her presence in the marital home, as an integral part of her conjugal duty, for which, he had much matrimonial bent of mind which cannot be considered in isolation as in most of the Exhibits, he pined for resumption of state of cohabitation. Accommodation of money which is trivial in nature can never be used as the means to snap the marital tie.
18. In the aforesaid background, the findings of the learned Court below, “one thing may be mentioned here that from these letters Ext. A, (A/1, A/2 and A/3) addressed to the respondent by the petitioner, it will not appear that the petitioner has been feeling mentally lonely and deserted or has been finding himself helpless for want of the presence of the respondent” are not legitimate.
19. We are afraid that we are wholly unable to subscribe to the view of the learned Court below. He has missed the wood for the tree. In the context, the letters written by the appellant, as argued by Mr. Bhattacharjee, to her go a long way to prove that it was an ex parte act of the appellant to instal her into marital home.
20. This animus to instal her in the matrimonial home cannot be bristled with suspicion and doubt.
21. In the background of the above, we have least doubt that the respondent conducted herself in a manner which attributed to desertion. In relation to the conduct of each other there is no spell of doubt that there was not only the factum of physical separation but also the animus deserendi of which the respondent was main architect.
22. In our view, the wife has taken an unreasonable attitude, the enormity of which has generated separation in all respect. In the instant case, the respondent is the deserting spouse who could not satisfy the just cause for her living apart. Reliance has been placed on Bipin Chandra v. Prabhavati, ; Kamal Kumar v.
Kalyani, 1987 (2) Cal. LJ 126 : [1988(2) All India Hindu Law Reporter 25 (Cal.)] and Sachindra v. Kalpana,1988(2) Cal LJ 165 : [1988(2) All India Hindu Law Reporter 507 (Cal.)].
23. The facts of Bipin Chandra, as considered by the Apex Court prominently dealt with desertion which could be inferred from facts and circumstances of each case, though the case manifestly dealt with the standard of proof. The second case of our High Court has been reiterated and discussed by their Lordships in Sachindra v. Kalpana founded on onus and the living apart of the other spouse on the ground of reasonable excuse, but it is discernible from all the decisions under reference that primarily it is the onus of the party charging his or her counterpart with the matrimonial offence of desertion. In our view, the appellant-husband has been successfully able to satisfy the Court that the desertion was made without any just cause. In the instant case, there could be no room for doubt and in view of the ratio decidendi emerging from the decisions under reference that the wife was the erring spouse who wanted to take advontage of her own wrong. She cannot be allowed to succeed. The case of the appellant-petitioner squarely and fairly verged on Section 13(1)(ib) of the Hindu Marriage Act, 1955. The intentional desertion has been protracted to its dangerous and embarrassing length which brings the case of the appellant-petitioner within the fold of the aforesaid section entitling him to a decree of divorce.
24. In the premise, the contentions raised by Mr. Bhattacharjee survive and the contentions that of Mr. Chowdhury do not hold the field. Accordingly, we accept the contentions of Mr. Bhattacharjee and reject that of Mr. Chowdhury.
25. We cannot agree with any of the findings of the Learned Court below. Accordingly, we reverse all the findings and substitute the same by our own reasoning, as indicated above.
In the result, the appeal succeeds. Hence ordered that the appeal and the same be decreed on contest but considering the circumstances without cost. The marriage between the Appellant and the Respondent dated 26.2.1982 is hereby dissolved by a decree of divorce.
S.K. Mukherjee, J.
26. I agree with the conclusions.
In the instant case, the learned Magistrate has rightly held that the respondent-wife had not been able to establish the allegations of cruelty or demand of dowry and that: on her own admission she was living in the house constructed by her husband. On the admissions of Goma Devi that for about 14 years the husband used to give his entire income to her and he was maintaining the family and that her husband was always ready and willing to keep her and her children and there was not love lost between them, the learned Magistrate was perfectly justified in holding that there was no negligence by the husband and the wife was herself responsible for the trouble in the marital relations. The learned Addl. Sessions Judge, it is obvious was influenced by the fact that the husband has filed a divorce petition in the Court of Dist. Judge, Bikaner. By this, he presumed that the husband Bheekha Ram was not willing to continue with the marital relations. In my opinion, this could not be the valid ground for interfering in the order of the learned Magistrate. The matter was to be decided on the basis of the material available on the record of the case under Section 125, Cr.P.C. The Addl. Sessions Judge has obviously erred in allowing the revision on the basis of the subsequent development of the case ignoring the admissions of the wife.
Rajasthan High Court Read more…
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4308 OF 2012
(Arising out of Special Leave Petition (C) No. 13254 of 2011)
Shaleen Kabra Appellant
Shiwani Kabra Respondent
CIVIL APPEAL NO.4309 OF 2012
(Arising out of Special Leave Petition (C) No. 15819 of 2011)
ANIL R. DAVE, J
1. Leave granted.
2. Being aggrieved by the judgment of the High Court of Delhi dated the 21st of February, 2011 in CM(M) 1018 of 2010, these appeals have
been filed by the parties before the High Court, who are parents of two children, whose custody is the subject matter of these appeals.
3. As the impugned order is challenged in both these appeals, both the appeals were heard together and they are being decided by this
common order. For the sake of convenience, parties to the litigation
have been referred to hereinbelow as arrayed in Civil Appeal arising
out of Special Leave petition No. 13254 of 2011.
4. The marriage of the appellant and the respondent was solemnized on
14.02.1994. From the wedlock, two sons were born, who are
approximately 15 and 9 years old. The appellant and the respondent
have been living separately since 10.04.2007, and have been involved
in various litigations since then, including a petition for divorce under Section 13(1)(i) & 1A of the Hindu Marriage Act, 1955 filed by the appellant-father and also proceedings under the Protection of Women from Domestic Violence Act, 2005, initiated by the respondent mother.
The appellant, who is an IAS officer, stationed at Jammu at present, had sought certain modifications in the arrangement of custody of the children, and also permission to take transfer certificates of the children from Delhi and complete their admission in a school in Jammu, and in this respect, moved applications dated 25.05.2010 and 22.06.2010 before the Additional District Judge. The Learned Additional District Judge, vide order dated 19.07.2010 was pleased to allow the applications moved by the appellant-father.
5. Being aggrieved by the above-mentioned judgment delivered by the
Trial Court, the respondent preferred CM(M) No. 1018 of 2010 before
the High Court. By virtue of the impugned judgment, the High Court
partly allowed the petition filed by the respondent whereby the
respondent was permitted to have custody of the younger son, whereas
the appellant was to have custody of the elder son.
6. While coming to the above conclusion, the High Court has cited
various decisions in support of the contention that while deciding the issue about custody of children in a matrimonial dispute, the
paramount consideration is that of welfare of the child. Thereafter, on the basis of interaction with the children in the Chambers, the learned Single Judge was of the view that the elder son had a strong desire to stay with the appellant-father. He also found that there was also an admission by the respondent-mother that she would not be able to adequately handle the educational needs of the elder son without tutors. For the aforestated reasons, the learned Single Judge ordered that custody of the elder son should remain with the appellant-father.
7. In the case of the younger son, the learned Single Judge observed that he, being of a very tender age, was incapable of forming a definite preference as to with whom he wanted to stay. In the circumstances, the learned Single Judge ordered that the custody of the younger son should be given to the respondent-mother, as she would be in a better position to understand the needs of such a young child. On this basis, the custody of the younger son was directed to remain with the respondent.
8. The learned Single Judge also recorded a finding to the effect that both the children appeared to be very happy in the company of each other as there was a strong bonding between them.
9. Being aggrieved by the said judgment, both the parties have come
before this Court vide the present appeals.
10.We heard the learned counsel for the parties, and also spoke to the children at length.
11. The counsel appearing for the appellant-father, at the outset, submitted that the High Court ought not to have directed separation of two children, in view of the close relationship between them and he further submitted that there could be disastrous effect of such a separation on them. Thereafter, the learned counsel made further submissions about the poor academic performance of the younger son while in the custody of the respondent-mother, and also regarding the alleged adulterous conduct of the respondent-mother, which was said to have a severe adverse effect on the children. The learned counsel further added that the father of the appellant, i.e. grand father of the children, is staying with the appellant and he, being a very educated person, would be in a position to take good care of the children. On these grounds inter alia, the learned counsel argued that both the children ought not to have been separated, and that custody ought to have been granted to the appellant-father.
12.On the other hand, the learned counsel appearing for the respondent mother submitted that looking to the service condition and status of the appellant-father, occupying a stressful position in the state of Jammu & Kashmir, he would not have sufficient time to give adequate attention to the children and if custody of the children is given to him, the children would be taken care of only by servants and that would not be in the interest of the children. Further, the learned counsel argued that as the children were already in a very good school in Delhi, it would not be just and proper to move them to another school in Jammu & Kashmir which might be of an inferior standard. For the aforestated reasons, the learned counsel argued that custody of even the elder son ought to have been granted to the respondent-mother.
13.On hearing the learned counsel and also upon talking at length with the children, we find force in the arguments of the counsel for the appellant-father.
14.Upon speaking to the children personally, we also found that they are indeed very much attached to each other. This fact was also noted by the learned Single Judge of the High Court in the impugned judgment, and is also admitted by both the parties in their respective written submissions. Looking to the overall peculiar circumstances of the case, it is our view that the welfare of both the children would be best served if they remain together. In our view it would not be just and proper to separate both brothers, who are admittedly very close to each other.
15.If we are of the view that both the brothers should not be separated and should be kept together, the question would be as to who should be given custody of the children.
16.We are of the view that the children should be with the appellant father. The respondent-mother is not in a position to look after the
educational need of the elder son and as we do not desire to separate
both the brothers, in our opinion, looking to the peculiar facts of the case, it would be in the interest of the children that they stay with the appellant-father.
17.We are sure that the appellant- father, who is a member of Indian
Administrative Service and is a well groomed person, with the help of
his father, who was also a professor, will be able to take very good
care of the children. Their education would not be adversely affected
even in Jammu and Kashmir as it would be possible for the appellant father to get them educated in a good school in Jammu. We do not
believe that the children would remain in company of servants as
alleged by the learned counsel appearing for the respondent-mother.
Father of the appellant i.e. the grandfather of the children would also be in a position to look after the children and infuse good cultural values into them. Normally, grandparents can spare more time with their grand children and especially company of well educated
grandparents would not only help the children in their studies but
would also help them to imbibe cultural and moral values and good
18.So as to see that the respondent-mother is also not kept away from the children, she shall have a right to visit the children atleast once in a month. The appellant –father shall make arrangements for A.C. First Class railway ticket for the respondent-mother or shall pay the railway fare to her so as to visit the children once in a month at a weekend and the appellant-father shall also make arrangements for stay of the respondent-mother either at his own residence, if the respondent mother agrees to that, otherwise the appellant-father shall make arrangements for suitable accommodation for the respondent-mother when she comes to Jammu to visit the children.
19.During the period of vacation exceeding two weeks, the appellant father shall send the children to Delhi so that the children can stay
with the respondent-mother atleast for three days. We are sure that the appellant and the respondent shall determine the modalities as to
during which portion of the vacation, the children should visit the
respondent-mother as almost both the parents are interested in having
the company of the children.
20. For the aforestated reasons and looking to the peculiar facts of the case, we quash and set aside the impugned order passed by the High Court and restore the order of the trial court, subject to modification of conditions-arrangements, recorded hereinabove. The custody of both the children shall be given to the appellant-father before 15th May,2012 and the arrangements with regard to visit of the children etc. shall take effect from 1st June, 2012, the respondent-mother shall do the needful to send the younger son to the residence of the appellant father before 15th May, 2012.
21.The appeals are accordingly allowed with no order as to costs.
(ANIL R. DAVE)
May 8 , 2012
Husband get divorce u/S 13(1)(ia) and (ib) of HMA but the Bombay HIgh Court set asides the order of Maintenance to the wife which was rejected by Family Court.
A husband who won the Divorce & Maintenance battle in Family Court has to run pillar to post even after the mental cruelty from Wife…this time its from Bombay High Court. Even after the Maintenance application of Wife was rejected by Family Court u/s 18(2)(a), (b), (g) and 20 of the Hindu Adoptions and Maintenance Act, 1956, the Bombay High Court ordered to set aside the same and directed the Lower Court for the Re-trail of the said application.
below is the Judgement
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.28 OF 2012
aged about 47 years, Hindu Indian Inhabitant,
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
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
FAMILY COURT APPEAL NO.29 OF 2012
CIVIL APPLICATION NO.41 OF 2012
FAMILY COURT APPEAL NO.29 OF 2012
1. Bhavana N.Shah,
aged about 47 years, Hindu Indian Inhabitant,
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,
1 of 18
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), District Thane-401 202. … Appellants
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 &
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
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 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 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 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 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 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 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 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 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
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
14 of 18
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
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
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
16 of 18
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
(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
(4) No order as to costs.
(5) In view of the above order, Civil Application stands
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Bombay HC acquits a MAN in IPC 397 and 451 after the completion of the sentence imposed by Trail Court.
“Though, in the ordinary circumstances, a woman is not
likely to make a false allegation of rape, when she is caught or is
suspected of having had sexual intercourse with someone outside the
wedlock, she is quite likely to try to protect her character, by claiming that what was done, was without her consent. Such a possibility is quite clear in the facts and circumstances of the present case, where the story of the victim when judged by the ordinary yardstick, appears to be quite improbable.”………..Justice Thipsay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1041 OF 2005
YOGESH JANARDHAN SHINDE )
Aged 25 years, Indian Inhabitant, residing at )
Hanuman Nagar, Ulhasnagar No.1. )
Accused is presently lodged in Nasik Road Jail. )…APPELLANT
THE STATE OF MAHARASHTRA )
(Through P.S.O. Ulhasnagar Police Station )…RESPONDENT
None for the Appellant.
Ms.R.M.Gadhvi APP for the State.
DATE : 11th APRIL, 2012.
ORAL JUDGMENT :
The appellant was prosecuted on the allegations of having
committed offences punishable under Sections 450, 376 and 506 of
Indian Penal Code (IPC). The Learned 1st Adhoc Additional Sessions
Judge, Kalyan, who tried him, found him guilty of offences punishable
under Sections 451 and 376 of IPC. The Learned 1st Adhoc Additional
Sessions Judge, sentenced the appellant to undergo Rigorous
Imprisonment for six months and to pay a fine of Rs.500/, with respect to the offence punishable under Section 451 of the IPC and to undergo Rigorous Imprisonment for five years and to pay a fine of Rs.2,000/, with respect to the offence punishable under Section 376 of IPC. There was another accused who was also prosecuted in the said case along with the appellant, but the Learned 1st Adhoc Additional Sessions Judge, found him not guilty and acquitted him. The appellant, being aggrieved by his conviction and the sentences imposed on him, has approached this court by filing the present appeal.
2 When the appeal came up for hearing, it was revealed that
the appellant was released from prison after having served the
sentences imposed upon him. Nevertheless, the appeal having been
admitted, was required to be decided on merits.
3 When the appeal appeared on board for hearing on 2.4.2012, nobody appeared for the appellant. On 9.4.2012, to which date the matter was adjourned, also, nobody appeared for the appellant. The matter was then kept on 10.4.2012, when also, nobody appeared and then ultimately, when it appeared on board today, though nobody appeared for the appellant, it was decided to dispose of the appeal, after hearing Smt.R.M.Gadhvi, the learned APP for the Sate.
4 With the assistance of the learned APP, I have gone through
the entire evidence adduced during trial and perused the record of the case. I have gone through the impugned judgment and order.
5 The prosecution case, as was put forth before the trial
court, was in brief as follows :
The victim (name not mentioned to avoid disclosure of
identity) is a married woman. She used to reside at Ulhas Nagar with
her husband, in front of the house of one Smt.Rambhadevi (PW1).
The appellant and the other accused were also residing in the same
locality and near the room, where the victim was residing with her
That on 2.6.1999, in the night, the victim was sleeping in
her room. Her husband was also sleeping in the room. That at about
2.00 a.m., the appellant entered in her room. He caught the victim and
pressed her mouth. Thereafter, the appellant and the original accused
no.2 Raju, lifted her and took her out of the house. The victim was
taken to the back side of her house, where she was raped by the
appellant. The victim started weeping and returned to her room, after
the act was over. The appellant and the other accused had already run
away towards their respective houses. The victim informed whatever
had happened to her husband. It is thereafter, that the matter was
reported to the police, in the morning. The statement of the victim was
treated as First Information Report (FIR) (Exhibit 45), on the basis of
which investigation commenced. The appellant and the other accused
came to be arrested and prosecuted as aforesaid.
6 The prosecution examined seven witnesses during the trial.
The first witness is Smt.Rambhadevi, neighbour of the appellant as well
as the victim. The second witness is the victim herself. The third
witness Satish Chandra is a panch, in respect of the arrest panchnama
(Exhibit 47), but he did not support the case of the prosecution and
was declared hostile. His evidence is of no assistance to the
prosecution. The fourth witness, Dr.Sunita, is the one who had
examined the victim on 2.6.1999. The fifth witness Shaligram
Sonawane is a panch in respect of the panchnama (Exhibit 55), which
relates to the recovery of a knife (Article 12), pursuant to the
information disclosed by the appellant. The sixth witness witness
Dr.Rajan Pore is the Medical Officer, who had examined the appellant
on 2.6.1999. The seventh witness Mallikarjun Hajare, Sub Inspector of
Police, attached to Ulhas Nagar Police Station at the material time, is
the Investigating Officer.
7 It is clear that the case of the prosecution basically rests on
the testimony of the victim. Her husband, though a witness, was not
examined, during the trial.
8 Before considering the testimony of the victim, the other
evidence adduced against the appellant, may be discussed in brief :
Smt.Rambhadevi (PW1) was expected to say that she had
seen the appellant having a knife and entering in the house of the
victim, with the other accused present outside the house. She was also
expected to say that the appellant had taken the victim out of her
house. However, Smt.Rambhadevi did n ot support the case of the
prosecution. She was declared hostile and the APP’s efforts, to secure
some evidence in favour of the prosecution from her by putting leading
questions to her, have not been successful.
9 The evidence of Dr.Sunita (PW4) shows that an abrasion
(scratch) on ‘right iliac crest’ measuring 3 cm. x 2 cm. was found on the
body of the victim. No other injuries on her body were noticed. This
witness was unable to give an opinion that the victim had been
subjected to any forcible sexual intercourse.
10 The evidence of Shaligram Sonawane (PW5) shows that on
6.6.1999, he had been to Ulhas Nagar Police Station, for his own work,
when ‘Hazare Saheb’ (PW7) called him and showed him two persons,
one of whom was the appellant and asked him, whether they were
from his Ward. This witness claimed that he knew the appellant. He
then states that there were some writings made at the Police station
and that the appellant disclosed certain information to P.S.I. Hazare,
pursuant to which, the police and the panchas were led to the house of
the appellant, from where a knife was recovered. In the cross
examination, he admitted that he had no talk with the appellant at that
time, in the police station. He also admitted that the appellant did not
talk anything to any Police Officer or policeman. He also admitted that
the Memorandum Panchnama (Exhibit 54) had already been written,
when he went to the Police station. He also admitted that he did not
go with the appellant on the back side of his house, from where the
knife was supposedly recovered.
11 In his evidence, Dr.Rajan (PW6) said that on examination
of the appellant, he did not find any external injuries on his body. He
found the appellant capable of performing sexual intercourse.
12 The evidence of P.S.I. Hazare (PW7) speaks about all steps
taken by him during investigation. It shows that the appellant was
arrested on 2.6.1999 itself. P.S.I. Hazare also states about seizure of
certain incriminating articles and of sending them to the Director of
Forensic Science Laboratory, Mumbai, for analysis and opinion. He
speaks about the seizure of the knife on 6.6.1999.
13 Thus, the evidence makes he following clear. First, that
except a scratch, the victim had not sustained any injuries, whatsoever.
Secondly, even the appellant had not sustained any injuries,
14 The evidence of the victim/prosecutrix may now be examined.
According to the prosecutrix, the appellant had entered inside her room
at 2.00 a.m., when her husband was also sleeping in the said room;
and that, the appellant had caught her, pressed her mouth, lifted her
with the help of the other accused and had taken her out of the room.
Then, she was taken to the backside of her house, where she was
raped. In her evidence, she did not make any mention about the
appellant having a knife with him, or having threatened her by using a
knife. From this, the recovery of the knife, allegedly at the instance of
the appellant, is rendered meaningless. It may, however, be observed,
that even otherwise the evidence in that regard, cannot be considered
15 In the cross examination, it was brought on record that
certain matters spoken about her in her evidence, had not been
mentioned by her in the FIR (Exhibit 45). However, it is unnecessary to
discuss those aspects. What needs to be discussed is the probability of
the version of the victim/prosecutrix being true and in that context,
certain admissions elicited from her in the cross examination, need to
be kept in mind.
16 The victim admitted in the cross examination that at the
material time, she and her husband had slept on a ‘khat’ in the house.
Though she denied the suggestion, that her evidence that the appellant
and the other accused had lifted her and taken her out of the house was
false, the fact remains, that it would be extremely difficult to accept
that the victim could be taken away forcibly from her room, when her
husband was sleeping besides her. In the cross examination, the victim
said that the appellant made her sleep on the ground and also admitted
that there were stones at the place of occurrence. If this would be so,
then the prosecutrix was expected to have, atleast some more scratches
on her person. But, as aforesaid, the medical evidence does not show
the presence of any injuries, except a scratch on right iliac crest.
17 The victim also admitted in the cross examination that
when she returned back to her house, her husband was standing and
waiting for her at the house. She also admitted that as seen as she saw
her husband, she started weeping. She also admitted that she wept for
the first time at the time of the incident, on seeing her husband. She
also admitted that one could hear the shouts made at the place of
occurrence, at her house. She also admitted that there were other
houses, adjoining her house, and there were hutments adjoining the
place of occurrence and that people were residing in those hutments.
It also becomes clear from the cross examination that the victim knows
the appellant very well, in as much as, she has said that the appellant
was, at the material time, residing in his house along with his parents,
brothers and sisters.
18 Considering the entire evidence, though it is not possible
to hold that nothing had happened in the night in question and that the
victim has invented a false and got up story, the possibility of the victim
being a consenting party to the act of sexual intercourse, which might
have taken place between the appellant and her, cannot be overlooked.
The story put forth by the victim is improbable in several respects. First
of all, it is difficult to accept that the victim could be picked up against
her wish, while she was sleeping by the side of her husband on a khat.
It is difficult to imagine that someone would dare to enter the room in
which the victim was sleeping with her husband and would dare to pick
her up from the side of her husband and successfully take her away to a
nearby place, which again was surrendered by several hutments with
people living there. The story that because her mouth was pressed,
she could not shout, cannot be accepted easily, as certainly the
prosecutrix could have drawn the attention of her husband, when she
was allegedly being picked up and certainly all the adjoining
neighbours and hutment dwellers, when she was taken to the backside
of her house. It would not be easy for any person to rape a grown up
and married woman under these circumstances and if the woman
would offer resistance. There are also no marks of any injuries on the
body of the victim, showing any attempt of resistance on her part.
19 The significant aspect of the matter however is, when the
victim came home, her husband was awake and had been waiting for
her. This is an admitted position. The victim naturally owed an
explanation to her husband, as to where she had gone in those night
hours, without informing him. Once the victim sensed the likelihood of
her husband questioning her on this aspect and detecting that she had
gone out with the appellant or for the purpose of meeting him, it was
quite natural for her to allege rape, so that the husband might not take
her as a consenting party.
20 Though, in the ordinary circumstances, a woman is not
likely to make a false allegation of rape, when she is caught or is
suspected of having had sexual intercourse with someone outside the
wedlock, she is quite likely to try to protect her character, by claiming
that what was done, was without her consent. Such a possibility is
quite clear in the facts and circumstances of the present case, where the
story of the victim when judged by the ordinary yardstick, appears to
be quite improbable.
21 Thus, even if it is assumed that sexual intercourse had
indeed taken place between the appellant and the victim, as alleged by
her, the possibility of the victim being a consenting party to the said act,
cannot be overruled. Certainly, atleast a doubt that the sexual
intercourse, if any, between the appellant and the victim was
consensual, arises upon a consideration of the entire evidence. The
appellant was entitled for the benefit of such reasonable doubt and
should have been acquitted. The appreciation of evidence, as done by
the trial court, is not proper or legal. The impugned order therefore
needs to be interfered with, in the interest of justice.
22 The appeal is allowed.
The impugned judgment and the order of conviction is set
The appellant stands acquitted.
Fine if paid, to be refunded to him.
The appeal stands disposed of in aforesaid terms.