Bombay HC, A’bad Bench acquits Husband and his family u/s 498A, 306 IPC and u/s 34 of Indian Evidence Act.
“No evidence is given by the prosecution witnesses as to for how many months the deceased had stayed in her parents house. Positive attempt was made by the witnesses to hide many material things from the Court. These circumstances and conduct of the prosecution witnesses have created reasonable doubt of case of prosecution that there was illtreatment to the deceased or there was demand of money from the appellants and due to that the deceased committed suicide. Even if the evidence given by Raosaheb, defence witness is ignored, the aforesaid
circumstances are sufficient to create probability in favour of accused that deceased was reluctant to return to matrimonial house and as she was forced to return, she committed suicide.”
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 216 OF 2000
1. Ankush S/o Jayavantrao Gajar
Age : 35 years,
2. Raosaheb S/o Jayavantrao Gajar
Age : 40 years,
3. Bhausaheb S/o Jayvantrao Gajar
Age : 37 years,
All agriculturists and R/o
Gundewadi, Tq. & Dist. Jalna. ….APPELLANTS
State of Maharashtra ….RESPONDENT
Mr. Joydeep Chatterji, advocate for the appellants.
Mr. D.V. Tele, APP for respondent/State.
CORAM : T. V. NALAWADE, J.
Reserved on : 28.06.2012
Pronounced on : 10.08.2012
1. Appeal is filed against the judgment and order passed in Sessions Case no. 27 of 1994, which was pending in the Court of 3 rd Additional Sessions Judge, Jalna. The trial Court has convicted all the appellants for offences punishable under Sections 306, 498A and 34 of the Indian Penal Code and they are sentenced to suffer rigorous imprisonment. Both sides are heard in appeal. Original record was called for perusal.
2. In short, the facts leading to the institution of appeal, can be stated as follows :-
Deceased Rukmini @ Sumitrabai was a daughter of complainant. She was given in marriage to appellant no.1 about two years prior to the date of incident. Appellant nos. 2 and 3 are elder brothers of the appellant no.1. Accused no.4 Jayvantrao was the father of the appellants and he died during trial. All the
appellants were living in joint family at the relevant time when
Rukmini started cohabiting with appellant no.1.
3. After six months of the marriage, the deceased visited the house of her parents and disclosed that the accused persons had asked her to bring Rs. 5,000/- from her parents. She disclosed that accused were in need of money as they wanted to install the electric motor on their well. She disclosed that there was illtreatment to her and accused were harassing her on this count. She disclosed to her parents that accused were giving abuses her, they were not providing sufficient food to her and she was driven out of matrimonial house time and again. She said to the parents that she will go to matrimonial house only when the amount of Rs. 5,000/- was given to her.
4. During two years of cohabitation, deceased had made such disclosure at least on two occasions to her parents. On both the occasions the parents promised her that they would make some arrangement and they would give amount after few months. About two months prior to the incident in question, the complainant had direct talk with accused no.1 and his brothers and on that occasion the complainant had given promise to give money within two to three months. However, the complainant could not make such arrangement.
5. Sumitrabai committed suicide by consuming poison on 11.10.1993. Father gave report against the appellants on 12.10.1993 and crime at C.R. No. 212 of 1993 came to be registered in Jalna Tahsil Police Station for the aforesaid offences. PSI Shri Andurkar made investigation of the case. Statements of
some of the relatives of the deceased on parents side came to be recorded.
6. The defence has not disputed that Sumitrabai died due to poisoning. Relevant record in this regard is admitted. In the trial Court the prosecution examined four witnesses who include the parents of the deceased, the maternal uncle of deceased and Investigating Officer. In defence, accused examined one Raosaheb More, who is relative of both the sides. Trial Court has believed the
prosecution witnesses and finding is given that there was demand of Rs. 5,000/- from the accused and to force this demand illtreatment was given to the deceased by the appellants. Trial Court has further held that suicide was committed due to illtreatment given by the appellants. In appeal it was submitted that the investigation was not done fairly. It was submitted that no
record was collected by the police to ascertain as to whether the appellants really own lands and they were really in need of any electric motor. It was submitted that specific material was brought on record to show that deceased was living with her parents for most of the time after the marriage and she was reluctant to come to matrimonial house. It was submitted that the material on
record has created probability that Sumitrabai committed suicide to avoid to live with appellants.
7. The death took place within two years of the marriage. Karbhari (PW-1), father of deceased has given evidence that for one year after the marriage there was no illtreatment to the deceased. He has deposed that after one year of the marriage the deceased made first disclosure about the illtreatment and such disclosures were made on two to three occasions. PW-1 has deposed that the deceased disclosed that all the appellants were asking her to bring Rs. 5,000/- from her parents as they wanted such amount to install the electric motor on their well. PW-1 has deposed that the deceased disclosed that there was threat of live given to her by the accused. PW-1 has deposed that he had promised to give amount after Diwali festival. PW-1 has deposed that he had given advise to accused no.1 in this regard.
8. F.I.R. at Exhibit – 52 is proved in the evidence of Karbhari (PW-1). In the Court no convincing substantive evidence is given on the nature of illtreatment by Karbhari. He has tried to say that the deceased was driven out of house by the appellants and threat of life was given to her but other evidence which
includes his cross examination shows that the deceased was probably never driven out of the matrimonial house. Other evidence has created one probability that the husband was always interested in resuming cohabitation and he was asking relatives of the deceased on parents side to send her back to the matrimonial house.
9. Parvatabai (PW-2), the mother of deceased has given similar evidence. She has further deposed that she had reached the deceased to matrimonial house two to three days prior to the date of incident in question. She has deposed that she had promised accused that their demand would be meet with at the time of Diwali festival. She has deposed that she had requested accused not to give illtreatment to the deceased. Radhakishan (PW-3), the maternal uncle of the deceased has given similar deposition on so called disclosures made by the deceased.
10. The evidence of Karbhari (PW-1) shows that the deceased used to visit his house on the occasions of festivals. The maternal uncle of the deceased has admitted that deceased celebrated first Diwali festival in the house of her parents. Thus the evidence shows that the appellants never prevented
deceased from visiting house of her parents. On the other hand, the evidence of three witnesses does not show that at any time they were required to request accused to accept the deceased back in matrimonial house. The evidence in cross examination of PW-1 shows that he was not able to tell as to exactly when the first disclosure was made by the deceased regarding the illtreatment. The evidence that on two to three occasions such disclosures were made, does not appears to be convincing in nature.
11. In the F.I.R., there is no mention that the deceased had returned to matrimonial house few days prior to incident. Only during cross examination of PW-1 he admitted that the deceased had just returned to matrimonial house. It is suggested to this witness during cross examination that the deceased did
not like the husband and so she was not ready to return to matrimonial house. It is further suggested that deceased was sent back to matrimonial house against her will and probably due to that reason she committed suicide. It is also suggested to PW-1 that the accused persons do not own any agricultural lands and so there was no need of money for installation of electric motor. All
these suggestions are denied by the PW – 1.
12. In cross examination, PW-2 has admitted that the deceased had visited the house of parents on five to six occasions. She has admitted that accused no.1 had visited her house and he had requested the parents of deceased to send
deceased back to matrimonial house. Radhakishan (PW-3) has admitted in cross examination that whenever accused no.1 had met, him accused no.1 had asked him to send the deceased back to matrimonial house. These vital admissions have created probability that the accused no.1 had desire to resume cohabitation and he was not putting any condition for the same.
13. No evidence is given by the prosecution witnesses as to for how many months the deceased had stayed in her parents house. Positive attempt was made by the witnesses to hide many material things from the Court. These circumstances and conduct of the prosecution witnesses have created reasonable doubt of case of prosecution that there was illtreatment to the deceased or there was demand of money from the appellants and due to that
the deceased committed suicide. Even if the evidence given by Raosaheb, defence witness is ignored, the aforesaid circumstances are sufficient to create probability in favour of accused that deceased was reluctant to return to matrimonial house and as she was forced to return, she committed suicide.
14. Three relatives of the deceased on parents side have not given account of any lands owned by the accused. In the evidence of Investigating Officer (PW-4) it is brought on record that the incident took place in land survey no. 66 which is owned by Ramkisan Gajar. The evidence of maternal uncle shows that
parents of deceased had many relatives in the said village, but no such relative had come forward in support of prosecution case. No reason is given by the Investigating Officer as to why the record in respect of agricultural land of the accused is not collected. In such case, it become necessary for Investigating Agency to collect the record to ascertain truth. It can be said that the investigating agency did not act fairly.
15. In view of the aforesaid discussions, this Court holds that the case of the prosecution that there was demand of Rs.5,000/- and on that account the illtreatment was given to the deceased cannot be believed. Material on record has created other probability. For proving the offence punishable under
Section 498A the prosecution is required to prove the ingredients mentioned in Section 498A which are as under :-
“In Section 498A of IPC, the word `cruelty’ is defined as follows :-
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or
health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
16. In the case reported as “Girdhar Shankar Tawade V/s State of Maharashtra” 2003 Bom.C.R. (Cri) 575), the Hon’ble Apex Court has observed that :
“The basic purport of the statutory provision in Sec.
498A is to avoid `cruelty’ which stands defined by
attributing a specific statutory meaning attached
thereto as noticed hereinbefore. Two specific instances
have been taken note of in order to ascribe a meaning
to the word `cruelty’ as is expressed by the legislature
: Whereas explanation (a) involved three specific
situations viz. (i) to drive the woman to commit
suicide or (ii) to cause grave injury or (iii) danger to
life, limb or health, both mental and physical and thus
involving a physical torture or atrocity. In explanation
(b) there is absence of physical injury but the
legislature thought it fit to include only coercive
harassment which obviously as the legislature intent
expressed is equally heinous to snatch the physical
injury; whereas one is patent, the other one is latent
but equally serious in terms of the provisions of the
statute since the same would also embrace the
attributes of `cruelty’ in terms of sec. 498A”.
It is further observed by the Apex Court at para nos. 16, 17
and 18 that in order to bring home guilt for offence u/Sec. 498A of
IPC, willful act or the conduct of Accused which have direct
relation to the death, need to be established. “
17. The evidence discussed shows that the evidence is not sufficient to prove the offence punishable under Section 498A of IPC. The other probability has created reasonable doubt about the case of the prosecution and so the benefit of doubt must go to the accused. This Court holds that the trial Court has not
considered the afor esaid circumstances, admissions in proper perspective and so error is committed. When prosecution fails to prove the offence of cruelty as defined under Section 498A of IPC, there is no question of drawing presumption which is available under Section 113A of the Evidence Act. For proving of offence punishable under Section 306 of IPC in the case like present one, there is necessity to use such presumption. So this Court holds that all the appellants are entitled for benefit of doubt and appeal deserves to be allowed.
18. In the result, the appeal is allowed. The judgment and order of trial Court is hereby set aside.
All the appellants stand acquitted of all the offences for which the charge was framed and for which they were tried. Bail bonds of all the appellants stand cancelled.
Fine amount, if any recovered from the appellants is to be returned to them.
[ T. V. NALAWADE, J. ]
Bombay HC:- Once the interim maintenance is granted either under section 24 of the Hindu Marriage Act or under section 18 of the Hindu Adoptions and Maintenance Act, then, there is no question of entertaining the application under the other Act.
M.B. Shah, C.J.
1. After considering the various decisions cited at the hearing of the Notice of Motion, by order dated 17th January, 1997, Variava, J., referred to the Division Bench the following two questions for determination:–
“1. Whether in proceedings under section 18 of the Hindu Adoptions and Maintenance Act, the Court can grant interim maintenance?
2. Whether if matrimonial proceedings are pending between the parties then an application for interim maintenance must be made only to the Family Court under the provisions of section 24 of the Hindu Marriage Act?”
2. With regard to the first question, after considering the various decisions, the Division Bench of this Court (V.P. Tipnis & Mrs. R.R Desai, JJ.) by judgment and order dated (16th and 17th December, 1997 in Appeal No. 14 of 1997) has arrived at the conclusion that, in a suit filed under section 18 of the Hindu Adoptions and Maintenance Act, 1956, the Court has jurisdiction and power to pass appropriate interim and ad-interim orders. We agree with the said conclusion.
3. Further, it is to be noted that the Hindu Adoptions and Maintenance Act, 1956 codifies the law relating to adoptions and maintenance among Hindus. It only declares and codifies the law with regard to adoptions and maintenance by Hindus. The basis of such obligation to maintain wives, widowed daughter-in-law, children and aged parents may be a pious obligation of Hindus. The provisions relating to maintenance are in Chapter III. Section 18 deals with maintenance of a wife during her life time under certain circumstances, as provided in sub-section (2) thereof. Section 19 provides for maintenance of a widowed daughter-in-law to the extent that she is unable to maintain herself out of her own earnings or other property by her father-in-law. Similarly, section 20 provides for maintenance of his or her legitimate or illegitimate children and his or her aged or infirm parents. The liability to pay maintenance to children is on the father or mother. Similarly, liability to pay maintenance to infirm parents is on the son or the daughter. Section 22 further provides that the heirs of a deceased Hindu are bound to maintain the defendants of the deceased (as defined in section 21) out of the estate inherited by them from the deceased. Section 23 provides for the objective criteria for determining the amount of maintenance. Further, the requirement is that no person shall be entitled to claim maintenance if she or he has ceased to be a Hindu by conversion to any other religion (section 24). Section 25 empowers the alteration of the amount of maintenance on change of circumstances justifying such alteration. Further, the proceedings initiated for getting maintenance would be under the Civil Procedure Code. Hence, there is no reason why inherent jurisdiction of the Court cannot be exercised for providing interim maintenance. If a deserted wife, widowed daughter-in-law, minor children and aged parents are not provided with interim maintenance, it would cause lot of hardship for a long period. The entire purpose of the enactment would be defeated because of the proverbial delays in disposal of cases resulting in grave hardship to the applicants who may have no means to survive until final decree is passed. There is no provision under the Hindu Adoptions and Maintenance Act or under the Civil Procedure Code that interim maintenance cannot be granted; there is no provision under the said Act which would meet the necessities of the case in question. Therefore, for doing real and substantial justice, Court can exercise power under section 151 of the Civil Procedure Code for grant of interim maintenance. It would also prevent abuse of the process of the Court.
4. Even in proceedings under section 125 of the Code of Criminal Procedure, in the case of Savitri v. Govind Singh Rawat, 1986 Cri. L.J. 411, the Court held as under :–
“Having regard to the nature of the jurisdiction exercised by a Magistrate under section 125 of the Code, we feel that the said provisions should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance, subject to the other conditions referred to, pending final disposal of the application. In taking this view we have also taken note of the provisions of section 7(2)(a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by Magistrates under section 125 of the Code to the Family Courts constituted under the said Act.”
For arriving at the above conclusion, the Court has observed that every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. The Court further observed that whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done, then that something else will be supplied by necessary intendment. In a civil suit filed for maintenance on the basis of the law applicable under the Hindu Adoptions and Maintenance Act, such power is required to be exercised. In our view, there is no reason not to apply the ratio laid down by the Supreme Court in Savitri’s case (supra) to the question involved in the present case.
5. Re: The Second Question :
In our view, even if matrimonial proceedings are pending between the parties, it is not the requirement that the application for interim maintenance must be made only to the Family Court under the provisions of section 24 of the Hindu Marriage Act. Once we arrive at the conclusion that an application under section 18 of the Hindu Adoptions and Maintenance Act is maintainable during the pendency of proceedings under the Hindu Marriage Act, then, obviously, the result would be that the application (or interim maintenance could be filed before the Court dealing with the right arising under provisions of section 18 of the Hindu Adoptions and Maintenance Act.
6. With regard to the provisions of section 18 of the Hindu Adoptions and Maintenance Act and provisions of the Hindu Marriage Act, the Apex Court, in the case of Chand Dhawan v. Jawaharlal Dhawari, 1993(3) Supreme Court Cases 4061, has held that, without affection or disruption of the marital status, a Hindu wife sustaining that status can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18(1) of the Hindu Adoptions and Maintenance Act. She may also be entitled to relief under section 125 of the Code of Criminal Procedure; but this is an alternative measure. The Court clarified that, in a petition under the Hindu Marriage Act, the Court is empowered to grant interim maintenance; but, in those cases where the marital status is to be affected or disrupted, then the Court would pass orders for maintenance. In other cases, the Hindu Adoptions and Maintenance Act would be applicable. Hence, in our view, even if matrimonial proceedings are pending between the parties in the Family Court, it is not necessary that for getting interim maintenance, an application must be made to the said Court under the provisions of section 24 of the Hindu Marriage Act.
7. We, however, make it clear that, once the interim maintenance is granted either under section 24 of the Hindu Marriage Act or under section 18 of the Hindu Adoptions and Maintenance Act, then, there is no question of entertaining the application under the other Act. This would avoid multiplicity of proceedings, because the criteria for awarding maintenance under both the provisions would be the same.
8. Reference stands disposed of accordingly.
Interesting thing is that the Respondent pleaded guilty to all charges alleged by the Petitioner -wife, owing to the medical condition of the Respondent. And the Respondent still have been absolved of all charges of domestic violence.
The Respondent have been asked to pay financial compensation to child keeping the status quo of the interim orders on CrPC 125 guidelines at 10k pm and to return stridhan articles or pay 5 lacs in lieu of the stridhan.
One very interesting thing is that all the vile and filthy allegations by the Petitioner-Wife did not amount to domestic violence in the first place in the opinion of the judge. Not sure of the logic of her reasoning, but I am not complaining..🙂
I am sure this is the first of some interesting judgments which will follow regarding this case. This one might be helpful to others facing vile allegations in DV, which most people are.
IN THE COURT OF MS.PURVA SAREEN, METROPOLITAN MAGISTRATE
MAHILA COURT (SOUTH WEST), DWARKA COURT, NEW DELHI
CC No.856/1 (Date of filing 16.11.2010)
U/S 12 of PWDV Act PS Dwarka
Shilpa Kalia W/o Sh.Manav Kalia
D/o Sh.Ved Prakash Batra
R/o D-204, Anusandhan Apartments,
Plot No.22, Sector 6, Dwarka,
New Delhi …..Petitioner
Manav Kalia S/o Sh.S.C. Kalia
R/o A-101, Ture Friends Apartments
Plot No. 29, Sector 6, Dwarka
New Delhi …..Respondents
1. The facts of the present case are as follows :-
2. The marriage of the complainant and respondent took place on 29.11.2003 and out of said wedlock one male child was born on 16.03.2005. As alleged, the respondent demanded dowry from the complainant and started beating and torturing her for not completing his demands. At the time of marriage the complainant was working with Sahara Airlines as In Flight Supervisor and was getting Rs.28,000/- per month as salary. The respondent at the time of marriage was working with his father in his company in the name of M/s Energy Ventures at 1249, Sector A, Pocket B/C, Vasant Kunj, New Delhi.
3. It is alleged by complainant that respondent was a habitual drinker and did not allow her many times to go on duty and used to come back in middle night in drunken state which affected the official life of complainant. As a result the complainant lost her job with Sahara Airlines and subsequently started working with Energy Ventures belonging to her father in law and was being paid Rs.5,000/- per month. The complainant also became pregnant at that time but the respondent did not stop harassing the complainant and demanded money from her parents. Thereafter, the complainant and respondent shifted to their own house at Flat No.17, Flot No. B-23, Ashwaryam Apartments,
Sector 4, Dwarka, New Delhi. Meanwhile, the respondent decided to do
a job in MNC in Gurgaon and shifted to a rented accommodation at Gurgaon.
4. The complainant was paying the rent of that house and soon she got a job in Max New York Life Insurance Company, Gurgaon. It is further alleged even after so many years of marriage the respondent did not change and on one night the respondent turned the complainant and the child out of the house without any rhyme or reason which was most humiliating for the complainant. In the month of January 2009 the respondent suffered a stroke and his right side was effected.
5. In March 2009 the mother of the respondent took him to Dwarka to her own house and on 14.07.2010 the respondent started asking for divorce. On the promise of father in law that he would return the entire stridhan articles and give a lumpsum deposit for the child, she agreed to enter into mutual divorce but when he did not fulfill his promise the said petition was dismissed and withdrawn.
6. It has been alleged that the respondent owns numerous properties in Delhi which are worth several Crores whereas the complainant was working with Presidium Gurgaon and earns Rs.40,000/- per month. It is further alleged that the respondent has no other liabilities but to maintain the complainant and her child and seeks maintenance of Rs.40,000/- per month in order to maintain herself as per standard of the respondent and prayed for Rs.25,000/- per month for maintenance of the child. She has also prayed for return of stridhan artciles. She further asked for residence order in the form of Rs.3.5 lacs as rent
already paid by her and further Rs.1 lac as litigation expenses. She further sought Rs.80 lacs as compensation and restrained order against the respondent to come within periphery of the house of the complainant and school of the child.
7. The allegations are denied by the respondents in the reply stating that he has done his engineering MBA from top institution. The marriage was a dowry less marriage and after the birth of the child the attitude of the complainant completely changed. She started fighting with the respondent on trivial issues and never respect the parents of the respondent and used to quarrel with them. Later on, the respondent came to know that the complainant has an affair somewhere. In May 2008, the respondent met with an accident and suffered leg injury due to which he was confined to bed and at that time the complainant asked the son to hit on the leg of the respondent and due to said injury the
respondent could not work and had to resign from the job.
8. In January 2009 the respondent had a brain stroke due to which his right side of the body became paralyzed which affected his speech and movement. The respondent therefore became totally dependent upon his parents and was not able to do his job. It is further stated by respondent that the complainant used to keep talking to her friend Anuj Ahuja and never cared for ailing respondent and used to hit and beat up the respondent.
9. As to the income, it has been stated by respondent that due to his physical incapability he is not in a position to harm or hit anybody and it was vehemently denied that he has own property of worth several Crores in Delhi and due to stroke not able to work and maintain the complainant and child.
10. After completion of pleading, interim order was passed by ld. Predecessor Court and granted Rs.10,000/- per month as maintenance to the child.
11.It has been stated by respondent in the court on the last date of hearing that he wanted to plead guilty owing to his medical condition and has prayed that keeping in view his medical condition order should be passed and he shall comply with whatever order the court passed in favour of him or against him.
12.Keeping in view the plea of guilt of accused and no willingness to lead any defence evidence, the previous order passed by ld. Predecessor Court stands as it is. The respondent is directed to continue paying Rs. 10,000/- per month to the child by the 10th of every month to be deposited in the bank account particulars of which communicated by Protection Officer to Respondent at the stage of interim order.
13.The arrears of maintenance be cleared within three months of passing this order. The respondent is further directed to return all the stridhan articles of the complainant back to her or in alternate pay Rs.5 lacs to her. No order as to the compensation is made as there is no averments of any incidents of domestic violence made by complainant in her compliant. No further order as to the residence is passed for by the complainant.
14.Complaint accordingly stands disposed off.
15.File be consigned to record room.
Announced in the open court (PURVA SAREEN)
on 13th July 2012 METROPOLITAN MAGISTRATE
(SOUTH WEST) MAHILA COURT, DWARKA
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.