Sunday, 2 August 2015

Whether filing of complaint by wife under Domestic violence Act amounts to cruelty?

 So far as filing of the case under the Domestic   Violence Act   is
concerned, the learned Counsel for the appellant submitted that because of the
ill­treatment and acts of incidents out of anger at the hands of in­laws, she was
subjected to strangulation which forced her to file the  complaint.  Except this
solitary criminal complaint, she has not filed any other complaint.   It is required
to be noted that the said case is still pending. The competent court has not found

that it is a false complaint.  In our view, filing of the complaint itself can never be
considered as an act of  cruelty unless it is found  by positive evidence that it was
a false complaint.  The said complaint has not yet been decided and is still
pending.   When the said case is pending before the competent court, the learned
trial Judge should not have given so much weightage about the factum of filing
of such complaint and trying to find out as to whether the allegations in the said
complaint   are   correct   or   not.   If   ultimately   the   said   complaint   is   dismissed,
naturally one can presume that the wife is guilty of filing false cases and making
reckless allegations against the husband. When the Act permits the   wife to
approach the Court under the provisions of Domestic Violence Act and if that
remedy is   availed of, such act should not be   treated as an act of cruelty,
otherwise  in no case a lady can file any complaint,  if the filing of complaint is to
be treated as an act of cruelty.  Simply because the wife in her cross­examination
admitted   that   she   did   not   want   to   live   an   animal   life   and   that   she   is   not
interested in marital life, one cannot jump to a conclusion that the wife is at
wrong.  A wife is also entitled to have her own freedom after marriage.
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION 
FAMILY COURT APPEAL NO.120 OF 2009
with
CIVIL APPLICATION NO. 174 OF 2009
Mrs. Deeplakshmi Sachin Zingade 

versus
Sachin Rameshrao Zingade,  

                      CORAM:  P.B. MAJMUDAR  &
                                                                                 R.V. MORE, JJ.
       
         Judgment pronounced on:     24th
      September,2009
Citation; 2010(1) MHLJ 10 Bom

1. Admit. With the consent of the learned counsel appearing for the
parties,   appeal   is   taken   up   for   hearing   forthwith.     Learned   counsel   for   the
respondent waives service. 

2. This appeal is directed against the judgment and order passed by the
learned Judge of the Family Court at Pune dated 29th May, 2009 in Petition No.
A­230/2008   by   which   the   learned   Judge   allowed   the   petition   filed   by   the
respondent and marriage between the petitioner and the respondent therein is
dissolved by decree of divorce under Section 13 of the Hindu Marriage Act
(hereinafter “the Act”).   It is the aforesaid decree of the trial Court which is
impugned   at   the   instance   of   the   appellant,   original   respondent   to   the   said
petition. 
3. The respondent herein instituted the said petition under Section 13
(1) (ia)  of the Act.  It is the case of the respondent before the Family Court  that
the marriage between him and the present appellant was solemnised on 17th
February, 2002 at Udgir, District  Latur according to Hindi Vedic Rites.  After the
marriage, the appellant lived and cohabited with the respondent and there is one
daughter out of the said wedlock namely Samiksha  born on 8th October, 2003.
It is the case of the present respondent  that the parents of the appellant wanted
ghar jamai and insisted that the respondent herein should shift to Latur and live
with her parents to which the respondent did not agree.  Thereafter, the parents
of the appellant shifted to Pune and insisted that the respondent should shift to
another house so that the parents of the appellant can live with them.  It is also
the  case   of  the  respondent    that   the   appellant   was   having  grievance  about

keeping the parents of the respondent with them.  According to him, his mother
is   a   cancer   patient   and   his   father   is   suffering   from   hypertension   and   heart
ailments   and,   therefore,   he   cannot   leave   them.     It   is   also   the   case   of   the
respondent that the appellant would pick up quarrels everyday and she did not
cook food for them and had levelled allegations against father of the respondent.
The appellant also made allegations against the respondent that he is having
affairs with a female colleague which led to frequent quarrels between them.
She threatened even to file false complaint against him and his parents.   The
appellant also refused to cook the food and she was exhibiting her unhappiness
at the time when the sisters of the respondent used to visit their house. It is also
the case of the respondent that the appellant did not like any of the friends of the
respondent  or colleagues of the respondent who visit the house.  It is also his
case   that     in   October,   2007,   the   parents   of   the   appellant   shifted   to   Pune
temporarily.  Mother of the appellant came to live in their house. She occupied
the bedroom  of the respondent and he was forced to sleep in the living room.  It
is also his case that on 3rd November, 2007, appellant filed a false case under
the Domestic Violence Act and the appellant succeeded in making respondent to
take another flat for her to live separately since 10th December, 2007.  It is also
the  case  of  the  respondent    that  the  appellant  is  serving    as  a  Lecturer  in
Women’s Engineering College at Pune and earning Rs. 20,000/­ per month.  On
these and such other grounds, the petition for divorce was filed  by the present
respondent before the Family Court. 

4. The aforesaid petition was opposed by the present appellant, who
was respondent in the sad petition and a reply  was filed by her at Exh. 15.  It is
the case of the appellant herein   before the Family Court that she is cultured,
educated and homely woman and that her brother is an Electronic Engineer who
is able to take care of her parents.  She denied the fact that she was having any
desire that the respondent should be a  Ghar Jamai   and that she is always
interested in the joint family and she never even insisted that the respondent
should live separately from the parents.   It is her case that she has always
performed her duties as a wife and daughter­in­law and she is prepared to
perform the same in future.   It is her case that she was always treated as an
outsider by the parents of the respondent. She used to cook food for the family
and used to do the household work.  In spite of the same, she was blamed by her
in­laws. It is her case that she had taken part in making various preparations at
the time of the marriage of respondent’s sisters and she also took care of their
deliveries. It is her case  that she worked for two years  after the marriage and at
that time she used to hand over the entire salary to the respondent.  It is her case
that the respondent was having affairs with one Shaila Omprakash Lashkari.
The said Shaila is working with the respondent and she is living alone being a
divorcee.   After the divorce of the said Shaila from her husband, the behaviour
of the respondent towards the appellant was changed.  He would return home
late and some time would not return for the entire night.  He would bring Shaila
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at the matrimonial home  and they were sharing the food with each other in the
same plate. The respondent was neglecting  the appellant and he would go for
outing with the said Shaila, leaving the appellant and the daughter alone. It is
her case that   on 14th October, 2007, the parents of the respondent tried to
strangulate  her. The daughter after seeing this became speechless for few days.
In view of the said incident, the appellant filed a complaint under the Domestic
Violence Act and prayed for a separate accommodation.  It is also the case of the
appellant that the respondent thereafter was coming and meeting the appellant
and the daughter   and used to stay   overnight and in fact they had physical
relations also.   It is her specific case that it is only because of Shaila that the
respondent wants to destroy   the family.   It is her specific case that she is
interested in continuing the marital relations and co­habit with the respondent.
On     the   aforesaid   grounds,   it   is   prayed   that   the   petition   is   required   to   be
dismissed. 
5. The learned trial Judge framed various issues and after considering
the evidence on record came to the conclusion that the respondent has proved
that   the   appellant   has   treated   him   with   cruelty.   The   learned   trial   Judge
accordingly granted decree  of divorce. The aforesaid order is impugned at the
instance of the appellant­ wife in this appeal. 

6. Mr.   Warunjikar,   learned   counsel   appearing   for   the   appellant,
submitted   that   the   learned   Judge   has   completely   misread   the   evidence     in
coming to the conclusion that the respondent was subjected to cruelty at the
hands of the appellant.  It is submitted that  from the evidence on record it can
never be said that the appellant had committed any act of cruelty.   On the
contrary, the appellant tolerated  even the relationship of the respondent with a
girl viz. Shaila and even today she is willing to go with the respondent and she is
ready to tolerate even the relationship of respondent with the said lady in order
to maintain marital relationship as also future of   the minor daughter.   The
learned   counsel   for   the   appellant   has   submitted   that   from   the   evidence   on
record, it is established that the respondent was having intimacy with the said
lady and that was the main cause for disputes between the appellant and the
respondent.  If the appellant was required to file a complaint under the Domestic
Violence Act, filing of such complaint in a given case itself cannot be said to be
an act of cruelty, unless it is ultimately found that the said complaint is false and
bogus, which is not the case herein.  Learned counsel further submitted that the
said lady Shaila had divorced her husband  and thereafter the respondent started
behaving   badly   with   the   present   appellant   and   was   humiliating   her   in   the
presence of the said Shaila.  It is submitted that if at all there is an act of cruelty,
it was on the part of the respondent  and not on the part of the appellant.  No
wife would tolerate any relationship of husband with any other lady in her
presence.  It is submitted by Mr. Warunjikar  that the respondent used to take

food in one plate together with the said Shaila.  The respondent used to come
very late at night and some time he would not come at night.  It is submitted
that from the evidence it is established that the respondent and the said lady
Shaila were chatting on internet regularly and they used to go in the hotel
together, leaving the appellant and the daughter alone in their house.   It is
submitted that the case filed under the Domestic Violence Act is still pending.  In
that view of the matter, it cannot be said that the appellant has filed any false
case and the learned Judge of the Family Court has gravely erred in relying upon
the pendency of the said case.  It is submitted by Mr. Warunjikar  that if filing of
such   case  itself   is   treated   as   cruelty,  no   wife   can  ever   file  any  case.     It  is
submitted that since out of anger, her in­laws tried to strangulate her that she
was forced to file the aforesaid complaint.  It is submitted that thereafter even
though she is residing in the separate house provided to her, the respondent
used to visit her house regularly and they were having physical relationship as
well.   Mr. Warunjikar submitted that today also appellant is willing to go and
reside with the respondent. 
7.  Learned counsel for the respondent submitted that the Family Court
has rightly appreciated the evidence on record and has rightly passed the decree
for dissolution of the marriage.   The learned counsel further submitted that in
view of the nature of the work, the respondent often required to come after midnight.
That is not enough for the appellant to make any grievance in this behalf.

It is submitted that  false allegations were made against the respondent under
the Domestic Violence Act.  It is submitted that she used to have quarrel with his
parents regularly and she made false allegation about strangulation  attributed to
his parents. It is submitted by the learned counsel for the respondent that the
appellant  is not willing to stay with his parents. It is further submitted that so
far as   girl Shaila is concerned, she is a family friend and, therefore, simply
because she is coming regularly at the matrimonial house where the appellant
and the respondent are staying with the parents  of the respondent, it  cannot be
presumed that the respondent was having any relationship with the said lady.
Learned counsel submitted that simply because the said lady is working along
with the respondent, it cannot be presumed that the respondent is having any
type of relationship with the said lady. 
8. During   the   pendency   of   this   appeal,   an   attempt   was   made   for
settlement and the appellant and the respondent both  had agreed to go together
to Pune where both of them are residing. However, learned counsel appearing
for the appellant submitted that though both of them travelled together in the
train,  at Pune Station the respondent refused to take the appellant at his house.
The learned counsel for the respondent has also not disputed this fact. The
matter, therefore, could not be settled and,therefore, now the Court is required
to consider as to whether from the evidence on record, the act of cruelty can be
said to have been established. 

9.  We have also gone through the oral and documentary evidence  on
record   submitted   by   the   learned   counsel   for   the   parties,   heard   the   rival
contentions of the parties and have gone through the impugned judgment and
order of the learned trial Judge. 
10. Examination­in­chief  of the respondent in the form of affidavit was
tendered at Exh. 22.   He  has reiterated the averments made in the application.
In his affidavit he has stated that since one year the appellant has   refused to
have any physical relations with him and that whenever any of the friends or
colleagues of the respondent visit the house, the appellant was insulting them
and used to say that the appellant is having worthless friends.   She used to
enquire from his friends as to whether the respondent is having any women
employees in his Company and she used to check up from the office of the
respondent as to whether he was in office or had gone out with some woman.
She used to enquire as to whether the respondent was regularly coming for work
and was having any affair with other woman.  In his affidavit he has averred the
same thing which he has stated in his petition. 
11. The respondent was cross­examined by the present appellant. In para
25 of his cross­examination he has admitted the fact that Shaila is his colleague
working with him and she is working as a Associate Project Manager along with
him.   In his cross­ examination he has stated that at present she is a divorcee.

However,  he has  denied  the suggestion  that  in  the  presence of  the  present
appellant, he has taken Shaila very close to him. He denied the suggestion that
she visited the house for about 100 times. He admitted the fact that he had told
the appellant that she is his friend. He, however, denied the suggestion that  he
had brushed his fingers in her hair in the  presence of the present appellant.  In
para 27   of his cross­examination he has admitted the fact that at the time of
marriage he was working with Versaware Technology, Koregaon Park, Pune. He
left the said Company in October, 2003. Shaila was  also working with him in
Versaware Technology and she changed her job and thereafter the respondent
also changed his  job.  He has also stated in his cross­examination that her two
sisters married after his marriage and Shaila also attended the said marriage. He
has admitted the fact in para 26 of his cross­examination that the child was born
about one and half years after the   marriage and during the initial period of
pregnancy the appellant was working. The respondent has also admitted the fact
that he had been to U.S.A. in the year 2005. One Gouri Joshi was his boss at that
time. He denied the suggestion that the appellant has never telephoned to the
said Gouri Joshi and the said Gouri Joshi also stated that Shaila was not with
him in U.S.A.  He has denied the suggestion that as he wanted to marry Shaila
that he is taking divorce from the appellant.  In his evidence he has stated that
he is getting Rs. 70,000/­ as his salary. 

12. The appellant also filed her affidavit in lieu of  examination­in­chief
at   Exh.   31   wherein   an   averment   has   been   made   in   connection   with   the
relationship   of  respondent  with   Shaila.   She  has  also  narrated   about   the   illtreatment
meted out to her by her in­laws.   In the cross­examination she has
admitted the fact that she has filed a complaint under the Domestic Violence  Act
before the Cantonment   Court, Pune. She has admitted the fact     about the
alleged relationship of respondent with the said Shaila.   She has admitted the
fact in her cross­examination that she had not withdrawn the complaint filed
under the provisions of the Domestic Violence Act before the Cantonment Court,
Pune, and the same is still pending. She has stated that they were living in a joint
family consisting of parents and sisters of the respondent and that she loves and
respects her in­laws and sister­in­law.  A question being put to her in the crossexamination
as to whether it is possible for  her to renew her relationship with
the parents of the respondent.  She, however, gave answer that she is not willing
to live an animal life. 
13. From   the   evidence   on   record   it   is   clearly   established   that   the
respondent was having relationship with one Shaila prior to  the marriage. The
said Shaila     thereafter married but gave divorce to her husband within short
period   of   her   marriage.     It   is   the   specific   case   of   the   appellant     that     the
relationship between the appellant and the respondent started worsening after
the divorce of the said lady Shaila.  It is required to be noted that initially for

some time the appellant and respondent were going on well and in fact a girl
child   was   born   out   of   the   said   wedlock     after   one   and   half   years.       The
relationship strained after  the said Shaila obtained divorce from her husband.  It
is as such not disputed by the respondent that he used to come late practically at
mid night. A housewife would normally expect   her husband to be at home
within reasonable time at night.   In fact, in a given case, such type of conduct on
the part of the respondent itself amounts to cruelty  to the wife.  In our view, if
the husband regularly comes late at night   after midnight any wife can have
reasonable apprehension about  the character of her husband.  It is not possible
for us to accept the submission of the learned counsel for the respondent  that
looking to the nature of his duties, he was required to come late at night. Even if
that be so, it is always expected from the husband at least to inform the wife on
telephone that she may not wait for him for long and he may come late at night
or he may not come at all. The appellant herein after delivering the child did not
receive proper attention from the in­laws which can easily be presumed from the
circumstances of the case. At one point of time, learned counsel for the appellant
tried  to suggest  that because a girl child was born that the attitude of  her inlaws
was changed.   However, on this aspect, it is not possible for us to say
anything as there is no satisfactory evidence on record produced by the appellant
in this behalf.  As per the evidence, after  the divorce of Shaila with her husband,
that   the   respondent   started   behaving   in   a   different   manner   towards   the
appellant.  The fact that the appellant was required to wait upto midnight for

arrival of her husband at home without any information can be an act of cruelty
on the part of the husband to the wife.  In the facts and circumstances of the
case, if the appellant was making an enquiry about the whereabouts of her
husband and when she is having reasonable apprehension that he is in the
company of somebody else, there is nothing wrong on the part of the wife to
make enquiries from the colleagues of her husband. There is no reason for the
wife to make false allegations as it is not in dispute that the respondent was
having  friendship with the said lady Shaila.  It is the case of the appellant that
even in her presence, the  respondent and said Shaila used to take snacks from
one plate and naturally the appellant felt humiliated as no lady would tolerate
presence of other lady taking liberty with the husband in her presence.   It is
nothing but a humiliation to the appellant wife.  It is true that the respondent
can have a lady friend.  He has stated in his evidence that she was his friend but
to bring the lady at the matrimonial home and behave in a particular manner in
the presence of his wife, in our view, cannot  be a justifiable act on the part of
the husband.   It is not the law that even if the wife   makes any legitimate
grievance or complaint or even or pick up quarrel on  a  justifiable ground, then
also it amounts to cruelty to the   other side.   Either husband or the wife are
entitled to point out their legitimate grievance before each other and even if
there is some exchange of words, it cannot be treated as an act of cruelty.  In the
instance case, from the facts and circumstances and evidence on record, we are
of the view that the appellant was justified in making necessary enquiries about

her husband as he was not often coming home upto mid night from the office.  
14. In her affidavit of evidence, the appellant has stated that she  tried to
cooperate with the family members and in fact she had taken  great interest at
the time of marriage of her sister­in­laws.  In her affidavit of evidence, she has
stated as under in paras 2 to 4. 
“2.   I have complied   with responsibilities of a wife and a
daughter­in­law very good on shifting with in­laws and am
ready in future also. I have respected the in­laws properly and
have treated them as parents. But the in­laws never treated me
properly as Laxmi for house, but has treated me as a third
person.   In­laws   have   always   treated   me   worstly.     I   have
complied   with   all   house   responsibilities   properly.     I   was
looking after all family members with cooking and cleaning,
w.c., bath room.  I was serving all their favourite dishes, since i
like cooking. And I was providing morning breakfast, tiffin for
applicant.  Also 2 sisters of applicant married after marriage of
applicant,   when   I   have   looked   after   them   properly   during
marriage and visit for delivery. 
3.     I was working for about 2 years after marriage. But I have
never ignored my duty during working also.  I was leaving to
work on cooking   for all family members and looking after
other business, so that  my mother­in­law  should not require
to do same works. But the in­laws were blaming me, when I
was looking  after  all business. Also I was allowed to work on
condition to handover all salary to in­laws.  I was handing over
my monthly salary to in­laws. So the  applicant did not require
to spend for his parents. 
4.  Applicant has a girl friend Shaila Omprakash Lashkari prior
to the said marriage. Said lady is working with applicant in his
office   and   residing   alone.     Applicant   had   told   me   after
marriage that said lady is his good friend   and actually she
wanted to marry her, but it could not succeed due to some
reason.   Said   Shaila   Omprakash   Lashkari   married   to   Amit

Choudhary after about 2 years after marriage of applicant and
myself. But then I learnt from applicant about Shaila Lashkari
divorced in about a year only. But the behaviour of applicant
changed on divorce of said Shaila Lashkari.   Applicant   was
returning home late or severely he was returning home next
day directly without returning home the whole night. Also he
was bringing home Shaila Lashkari, eating in a dish with her,
moving hands from her hairs, talking to her with ignoring me
and then was moving to drop her at home in the late night,
etc. Also applicant was talking for hours over internet chating
or   mobile   with   Shaila   Lashkari.   Also   applicant   was   taking
Shaila Lashkari for tour or in hotel with keeping me and our
daughter   in   home   severally.     I   requested   the   applicant
severally not to   contact the said lady and he is required to
look   after  his   daughter  now  and  tried   to  tell  to  look     for
daughter   future   but   the   applicant   was   beating   me   on
threatening on my talking about said lady. But I was and is
thinking today not to spoil life due to  the said third lady and it
should not affect adversely n the daughter life, hence I acted
nothing legally.”
15. Nothing substantial has been brought out from the cross­examination
regarding the above evidence. Considering the said aspect,  the allegation of the
wife about relations of the respondent­husband with the said lady Shaila, itself
can be treated as an act of cruelty on his part. 
16. So far as filing of the case under the Domestic   Violence Act   is
concerned, the learned Counsel for the appellant submitted that because of the
ill­treatment and acts of incidents out of anger at the hands of in­laws, she was
subjected to strangulation which forced her to file the  complaint.  Except this
solitary criminal complaint, she has not filed any other complaint.   It is required
to be noted that the said case is still pending. The competent court has not found

that it is a false complaint.  In our view, filing of the complaint itself can never be
considered as an act of  cruelty unless it is found  by positive evidence that it was
a false complaint.  The said complaint has not yet been decided and is still
pending.   When the said case is pending before the competent court, the learned
trial Judge should not have given so much weightage about the factum of filing
of such complaint and trying to find out as to whether the allegations in the said
complaint   are   correct   or   not.   If   ultimately   the   said   complaint   is   dismissed,
naturally one can presume that the wife is guilty of filing false cases and making
reckless allegations against the husband. When the Act permits the   wife to
approach the Court under the provisions of Domestic Violence Act and if that
remedy is   availed of, such act should not be   treated as an act of cruelty,
otherwise  in no case a lady can file any complaint,  if the filing of complaint is to
be treated as an act of cruelty.  Simply because the wife in her cross­examination
admitted   that   she   did   not   want   to   live   an   animal   life   and   that   she   is   not
interested in marital life, one cannot jump to a conclusion that the wife is at
wrong.  A wife is also entitled to have her own freedom after marriage.  In the
instant   case,   even   during   the   time   of   pregnancy,   she   was   serving   and   was
required to do household work after coming from the office. It is the case of the
appellant that she was never treated as a family member of the respondent or
her   in­laws.     The   allegation   regarding   strangulation   made   by   the   appellant
against   the   father­in­law  is  the  subject  matter  of   case  under  the  Domestic
Violence Act. The learned trial Judge, in our view, has gravely erred  in coming

to the conclusion that since there is no police complaint filed by her or medical
report   regarding   strangulation   and   that   being   a   serious   allegation,   the
genuineness of the said case cannot be believed.  Whether the allegation is false
or not is a matter of investigation before other competent court. In our view, the
learned trial Judge has erred in holding that if the appellant was subjected to
inhuman treatment being an educated lady she would file  police complaint and
would go for medical examination for herself.  
17. Regarding allegation about illicit relationship of the respondent with
Shaila, the learned trial Court has observed in paras 44 and 45 thus:
         
“44.    Respondent   has   in   her   cross   examination   has
reconfirmed that in her complaint under Domestic Violence Act
she has  alleged that petitioner has illicit relations with Shaila
Lashkari.  She has alleged against  the character of petitioner.
Petitioner has beaten her, mentally and physically harassed
her.   She   admits   that   she   has   alleged     serious   allegations
against   the   character   of   Shaila   Lashkari   in   relation   to   the
petitioner. Besides her bare words, she has no other evidence
to show the alleged relationship between petitioner and Shaila.
She   has   deposed     that   she   has   seen   with   her   own   eyes.
Respondent has further deposed in the cross examination that
the flat consisted of 2 bedroom, hall, kitchen. Total there were
7 members residing in the flat. 
45.    Considering these facts on record, admittedly, petitioner
has not examined any witnesses but on the other hand there is
a positive assertive allegation of the respondent that petitioner
has   illicit   relations   with   Shaila   Lashkare   hence,   in   all
probabilities,   she   would   be   on   suspicion   trying   to   make
enquiries about the petitioner from his friends and colleagues.
She   would     hence   be   calling   his   office   to   find   out   if   the
petitioner is moving around with Shaila Lashkare.  Admittedly,
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Shaila is an old good friend of the petitioner. She has been
visiting the house, attending the marriage of the sisters of the
petitioner in the year 2004.   Respondent is aware of it. She
was married and has also been divorced.  It is the case of the
respondent that after the divorce of Shaila, there was a change
in the behaviour of petitioner. The allegations made by her
about eating in one plate, petitioner brushing his fingers in her
hand, go for outings and restaurants are after the divorce of
Shaila   or   even   before   is   not   been   mentioned   by   the
respondent. Secondly, if Shaila is in the house, then there are
the parents of the petitioner also in the house, could it be said
that he in there presence was behaving as alleged.  It is not the
case of the respondent that the parents of the petitioner have
supported   and   encouraged   the   petitioner   to   have   illicit
relations with Shaila Lashkare. Respondent has not supported
her   vague   and   general   contentions   with   any   corroborative
evidence.     Respondent   either   out   of   suspicion   or   out   of
jealousy appears to have alleged such baseless and reckless
allegations.”
18. In our view, when it is not in dispute that the respondent used to
come late at night, that in her presence  the respondent and the said  Shaila used
to share food from the same plate and when the respondent himself admitted the
fact that the said Shaila is his friend and on the basis of said circumstances if the
appellant has doubted the relationship, it cannot be said that such doubt was
without any basis.   It is too much, in our view, to hold that out of   jealousy
perhaps such reckless allegations have been made. In such type of matters, there
may not be any independent witnesses present but the appellant can be said to
be the best witness because the wife is required to spend more time and is
required to know details of the husband more minutely than anyone else in the
family. The learned trial Judge has also found on appreciation of evidence that
the allegation of the respondent that the parents wanted a ghar jamai is false.
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The learned trial Judge also found that lodging a complaint with Stree Adhar
Kendra by the appellant does not mean that the respondent and his family
members are defamed. The learned Judge also held that a woman look for
various   sources   or   women   organisations     to   seek   support   and   resolve   their
disputes. The learned trial judge in  our view has erred in going in detail about
the complaint filed under the Domestic Violence Act for coming to the conclusion
that there is a contradiction in the allegations of the appellant in her complaint
under the Act and her admission in the cross­examination. In para 58 of the
order,   the   learned   trial   Judge   found   that   there   are   allegations   and   counter
allegations but the submission of the advocate for the respondent is corroborated
by the allegations made by the appellant in her complaint under the Domestic
Violence Act. 
19. It is required to be noted that in spite of the aforesaid fact the
appellant, in order to save her matrimonial home  as well as for the benefit of
their   daughter   has   submitted   that   she   is   willing   to   go   and   reside   with   the
husband and she is even ready to tolerate his relationship with other lady. It may
not amount to an act of cruelty which can be attributed to the wife. In a given
case, if the circumstances so warrant, wife may  have some suspicion about the
act  and behaviour of her husband.  In a given case,  if the wife is having some
suspicion, that itself may not amount to an act of cruelty as the act of cruelty
depends upon the facts and circumstances of each and every case.  In a given
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case if ill­treatment is meted out by in­laws and when the law has provided
remedy, there is nothing wrong if a complaint to that effect is filed even against
in­laws. That ground itself should not be taken as the basis for dissolving the
marriage. As argued by the learned counsel for both sides, the basic dispute was
in connection with the respondent’s so­called relationship with Shaila but, as
discussed earlier, from the facts of the case it is established that the respondent
was having said lady as girl friend prior to marriage. According to the appellant
in her presence she was subjected to humiliation. It cannot be said that her
suspicion or  doubt was without any basis worth the name and that only by way
of jealousy that she was making such allegation. After marriage, no wife may
tolerate   the company of other lady friend in her husband’s life and wife may
have reservation about such friendship after the marriage. Normally, a husband
and wife after the marriage is required to see that the peace at the matrimonial
house prevails and one should try to remove the grievance of other side and if
one is required to sacrifice something, in order to bring peace in the matrimonial
home one should act accordingly.  After the birth of a child, it is the bounden
duty   of   the   husband   and   wife   to   see   that   even   if   at   the   cost   of   some
inconvenience they should try to adjust with the nature of each other and even
try to surrender to the  wishes of either side.  Then only the matrimonial house
can run smoothly with some jerks here or there.  
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20. From the evidence on record, we are  of the opinion that this is not a
fit case in which the marriage between the appellant and the respondent is
required to be dissolved by passing a decree for divorce on the ground of alleged
cruelty attributed to the appellant by the respondent.  The  order of the learned
trial Judge is therefore required to be quashed and set aside and accordingly the
same is set aside and the petition filed by the respondent before the Family
Court stands dismissed. 
21. The appeal is accordingly allowed with no order as to costs.  
22. In view of the above order, no orders are required to be passed in
the Civil Application. The same is accordingly disposed of. 
      P. B. MAJMUDAR, J.
                                                                 R.V. MORE, J.
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