Thursday 29 September 2016

Whether conduct of husband of harassing wife as she was coming home late from work amounts to cruelty?


 As   indicated   above   wife   examined   herself   and
husband examined himself in support of their respective
allegations   and   counter   allegations.     Wife   was   cross
examined at length.  In paragraph 10 of her examination in
chief it is stated by wife that due to tremendous mental and
physical stress she called her mother to reside with her for
some time.   She states  that in the month of August, 2012
she was late to return home from work place.   Respondent
started abusing her saying that she was characterless and
having some affair.   When her mother intervened he also
abused her mother in a third grade language.   She then
states that her husband abused her physically by giving fist
blows   on her face.   She stated that thereafter it was the

habit of her husband to abuse her physically.   She was
beaten with slaps and fists.   On one occasion Police was
called and understanding   was given to   respondent that
strict action would be taken if he abuses his wife physically.
19] With   the assistance of the learned Counsel for the
parties we have gone through the entire evidence of wife
and   it   can   be   seen   that   on   these   serious   allegations
deposed   by   wife   in   paragraph   10   of   her   deposition
absolutely there is no cross examination.  Those allegations
are therefore uncontroverted and in the absence of cross
examination they are required to be taken as proved.
20] It is apparent that learned Judge has not appreciated
the evidence of wife in proper perspective keeping in view
that certain important facts  and serious allegations levelled
by her were not at all  controverted by the husband leading
to the ultimate result that those facts which found place in

the pleadings and deposed in evidence were duly proved.
Even in the evidence of respondent we find that there  is no
specific   denial   to   the   allegations   levelled   by   wife   in
paragraph 10 of her pleadings and evidence.  Thus on the
basis of evidence on record it is clear that  conduct of the
husband   in   suspecting   the   character   of   wife,   physically
assaulting and harassing her as she was coming home late
from work place due to the nature of her job are the facts
duly established amounting to cruelty and wife is entitled to
a decree of divorce on the ground of cruelty.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Family Court Appeal No.33 of 2016
Smt. Vibha w/o Arun Goswami,

V
Arun s/o Narayan Goswami,

            Coram : Smt. Vasanti  A  Naik  &
                  Kum. Indira Jain, JJ.
           Dated  : 14th September, 2016.



2] Heard finally with the consent of the learned Counsel
for the parties as record and proceedings are received.
3] By this appeal appellant/wife challenges the judgment
of the Family Court, Amravati dated 30­12­2015 dismissing
the   petition   filed   by   appellant/wife   for   dissolution   of
marriage   on   the   ground   of   cruelty   under   Section
13(1)(i­a) of the Hindu Marriage Act, 1955.
4] Facts giving rise to the appeal may be stated in brief
as under :­
Appellant is wife of respondent (hereinafter appellant
shall be referred as ‘wife’ and respondent shall be referred
as ‘husband’).   They got married on 11­03­2000 as per
customary rites.   After marriage wife went to Wardha to
cohabit   with the husband.     The family of husband was
consisting of his father, mother, brother, sisters and two kids
of married sister.   It is the case of wife that soon after

marriage she realized that   approach of family members
towards her was not good.  They used  to taunt, disrespect
and   harass   her.     She   was   an   Engineer   whereas   her
husband was 12th   passed.   As she was highly educated
members in the family were under the impression that she
feels embarrassment in doing household work.  According
to wife  though she is a qualified  Engineer  she has spent
her entire time in  taking care of the family members and
further choosing to be a housewife.
5] It   is   pleaded   by   the   wife   that   she   underwent   two
miscarriages and in the third pregnancy delivered a male
child on 26­12­2004.   Child is in her custody.   After two
miscarriages she had to opt for a job at Wardha as it was
difficult to maintain the family  with the meager salary of the
husband.   Respondent however went on shifting   his job
from place to place and appellant used to accompany him.
She requested  respondent to shift to Pune in the interest of

education   of   child   and   as   Pune   being   a   big   city   lot   of
opportunities would be available to him also.  Respondent
refused to shift to Pune.  That left with no alternative to the
wife to shift to Pune along with her four year old child  at the
house of  her brother.  
6] In  2009  she  could  get rented  accommodation  and
started residing with her child separately.  Respondent was
rarely visiting Pune to meet his wife and child. She could
secure job at Pune and settled there.  A flat was purchased
by  her   in  2010  in  the   joint  name     of  her   husband  and
herself.   Respondent did not share a single pie towards
installments.  Thereafter respondent all of a sudden shifted
to Pune and spent months together without doing any work.
On the insistence of wife he started Laptop Service Center
in the year 2011 at home.  He did not pay attention and so
business went in loss.  Respondent used to remain at home
without any work and started raising quarrels with the wife

on trivial issues for no reasons.  She was  being abused  as
she was educated and was doing a job.
7] In July, 2011 wife could get a job of Senior System
Manager   in   I.B.M.   Company   and   her   responsibilities
increased   as   she   was   required   to   work   in   a   shift   from
01.30 pm to 10.30 pm.   Respondent   started suspecting
character of wife as she was required to remain at the work
place till late in the night.   He used to abuse her in filthy
language saying that she is a characterless lady having
relations with many persons and coming late in the house.
Due to  tremendous mental and physical stress wife  was
required to call her mother to stay with her for some time. 
8]   In August, 2012 wife came late   at home from the
office.     Husband   started   abusing   her   in   filthy   language
saying that she is characterless and having   affair.   On
intervention of her mother respondent abused her mother

too in filthy language and assaulted wife by giving fist blows
on her face.
9] Thereafter on 10­03­2013 respondent  raised quarrel
with his wife on the ground that she should not visit her
parents at Amravati.   He became   violent   and threw a
Laptop of her.   He pushed her to the ground & delivered
kick blows.   She was locked in a room by the husband.
Incident was witnessed by eight year old son who suffered
tremendous mental shock and was frightened.   She could
manage to call her brother and mother from Amravati on
11­03­2013.   Her brother and mother reached Pune and
directly   went  to  Police   Station.    She  was   called   by  her
brother on phone and anyhow she could manage to escape
from   the   house   and   reached   the   Police   Station.
Respondent was called at the Police Station.  With the help
of mediators  dispute was resolved in the interest of child
and wife  came to Amravati on the same day along with  the

child as it was impossible for her to continue to live with her
husband.
10] According   to   wife   respondent   is   suffering   from
inferiority complex and due to constant illtreatment  it is not
possible for her to pull on in the  company of her husband.
She   states   that   for   13   years     she   was   tolerating     the
extrinsic behaviour of her husband but when cruelty went
beyond tolerance she had no option but to file  a petition for
divorce on the ground of cruelty.
11] Respondent/husband filed his reply and resisted   the
petition for divorce.   The factum of marriage, educational
qualification of husband   and wife, birth of child are the
facts not in dispute.   On alleged cruelty, harassment and
torture defence of husband is of total denial.  He stated that
on   10­03­2013   wife   wanted   to   go   to   Amravati   but   he
requested her not  to go as child  would loose his school

and   tuition   classes.     On   the   trifle   issue   she   called   her
mother and brother at Pune who straightway went to Police
Station and threatened him that  if he refuses his wife  to
act according to her wish she would commit suicide and put
him in jail.  He states that  access to child was denied to
him.    At Amravati  she  filed  a petition  for divorce  under
Section 13­B of the Hindu Marriage Act.  The said petition
was signed by him on the condition that she would allow
him to meet the child.  As access to child was denied he
refused for divorce by mutual consent.  On 07­10­2013 he
sent a legal notice and thereafter received a notice from
wife   under   the   Protection   of   Women   from   Domestic
Violence Act, 2005.
12] Respondent   then   states   that   after   two   years   of
marriage he got a job at Lloyd Steel, Wardha and tried to
get the job for his wife in the same Company.  After getting
the   job   at   Wardha   she   became   more   ambitious   and

secured   job at Chennai.     It was difficult for her to take
care of child at Chennai and so he accompanied her to
Chennai   to   look   after   the   child.     Thereafter   she   was
transferred to Pune and started residing with the child and
her   parents.       Respondent   came   back   to   Wardha   for
service   purpose.       He   stated   that   his   wife   was   highly
educated and was treated with utmost respect in the family.
Though he was serving at Wardha he used to visit Pune to
meet his wife and child.  She was  earning Rs. 1 Lakh per
month   and asked him to leave job at Wardha.   At her
instance he shifted to Pune and started  computer repairing
work.  When he shifted to Pune he carried his savings of
Rs.7,50,000/­ which was spent by him for purchasing  a flat.
It is alleged that wife used to insult and abuse him as he
was not so educated and he had to tolerate the illtreatment
for a long.     She   on her own severed the matrimonial
relations  since  2011.    It  is  the  contention  of  husband
that  wife  cannot  take  advantage  of  her  own  wrong

and she is not entitled for a decree of divorce.
13] On   the   aforesaid   pleadings   of   the   parties     Family
Court framed the issues.   Parties adduced   evidence in
support of their respective  cases.  Wife examined herself
and reiterated the facts pleaded in the petition.   Husband
too entered the witness box and supported  his defence.
14]    On appreciation  of the evidence of parties Family
Court came to the conclusion that wife could not prove that
husband treated her with cruelty and refused to grant a
decree of divorce in favour of wife.   It appears   from the
reasons   recorded   by   the   Family   Court   that   conduct   of
respondent was not of such a nature and gravity so as to
cause reasonable apprehension in the mind of wife that it
will be harmful or injurious to her to live with the husband.
Family Court was of the view that evidence on record was
not sufficient to substantiate the allegations of cruelty.   It

was also observed that corroborative evidence was lacking.
Wife had exaggerated her case in the course of evidence
and so the Court found that sole reliance on the testimony
of wife  could not be placed.  This judgment of Family Court
is under challenge in this appeal.
15] Shri   Rahul   Dharmadhikari,   learned   Counsel   for
appellant submitted that  Family Court was not justified in
refusing  to grant decree of divorce on the ground of cruelty
particularly when there is uncontroverted  evidence of the
wife     clearly   indicating   that     husband   used   to   raise
suspicion on character of wife as she was coming home
late from her work place.   Learned Counsel submits that
evidence of wife in paragraph 10 of her examination in chief
has remained unshaken as absolutely   there is no cross
examination   on   the   serious   allegations   made   by   wife
against the husband.  It is stated that  evidence of wife has
not been properly and legally appreciated as a result of

which perverse findings have been recorded refusing to
grant a decree of divorce.
16] Ms. Khisti, learned Counsel for respondent supported
the impugned judgment and submitted that   Family Court
was justified in dismissing the petition for divorce as there
was no sufficient evidence to prove  cruelty at the hands of
husband.   Learned Counsel submits that appellant made
exaggerations in her evidence and so Family Court was
absolutely   right   in   insisting   for   corroboration.     Learned
Counsel prays for dismissal of appeal with costs.
17] On considering the pleadings of parties, evidence on
record and submissions made by the learned Counsel for
parties following points would arise for determination in this
appeal :­

1] Whether the Family Court could have 
dismissed the petition filed by wife for 
decree of divorce under Section  
13(1)(i­a) of the Hindu Marriage Act?
2] Whether wife is entitled to a decree of 
divorce on the ground of cruelty?
18] As   indicated   above   wife   examined   herself   and
husband examined himself in support of their respective
allegations   and   counter   allegations.     Wife   was   cross
examined at length.  In paragraph 10 of her examination in
chief it is stated by wife that due to tremendous mental and
physical stress she called her mother to reside with her for
some time.   She states  that in the month of August, 2012
she was late to return home from work place.   Respondent
started abusing her saying that she was characterless and
having some affair.   When her mother intervened he also
abused her mother in a third grade language.   She then
states that her husband abused her physically by giving fist
blows   on her face.   She stated that thereafter it was the

habit of her husband to abuse her physically.   She was
beaten with slaps and fists.   On one occasion Police was
called and understanding   was given to   respondent that
strict action would be taken if he abuses his wife physically.
19] With   the assistance of the learned Counsel for the
parties we have gone through the entire evidence of wife
and   it   can   be   seen   that   on   these   serious   allegations
deposed   by   wife   in   paragraph   10   of   her   deposition
absolutely there is no cross examination.  Those allegations
are therefore uncontroverted and in the absence of cross
examination they are required to be taken as proved.
20] It is apparent that learned Judge has not appreciated
the evidence of wife in proper perspective keeping in view
that certain important facts  and serious allegations levelled
by her were not at all  controverted by the husband leading
to the ultimate result that those facts which found place in

the pleadings and deposed in evidence were duly proved.
Even in the evidence of respondent we find that there  is no
specific   denial   to   the   allegations   levelled   by   wife   in
paragraph 10 of her pleadings and evidence.  Thus on the
basis of evidence on record it is clear that  conduct of the
husband   in   suspecting   the   character   of   wife,   physically
assaulting and harassing her as she was coming home late
from work place due to the nature of her job are the facts
duly established amounting to cruelty and wife is entitled to
a decree of divorce on the ground of cruelty.
21] In her further evidence wife tried to point out that on
one occasion her husband assaulted her and she received
an   injury   to   her   right   eye.       She   was   referred   to     eye
surgeon   and   permanent   damage   to   her   right   eye   was
caused.   We find that in petition no such pleadings are
raised by the wife regarding injury to her right eye in an
assault by husband.  So safer course in such a case  would

be  to keep this part of evidence out of consideration  for
want of  pleadings.
22] The next significant factor in the case on hand is that
petition   for   divorce   under   Section   13­B   of   the   Hindu
Marriage Act was filed  by the husband and wife before the
Court at Amravati but according to husband as access to
child was denied  he refused for divorce by mutual consent.
This fact indicates that  respondent accepted  that marriage
cannot   be   saved     and   no   purpose   will   be   served   in
continuing the marriage.  It is not the case of husband that
his signature on petition under Section 13­B of the Hindu
Marriage Act was obtained by force, fraud or coercion.  He
voluntarily agreed to obtain  a decree of divorce by mutual
consent.   The learned Judge of the Family Court has not
adverted to this aspect.  
23] On careful scrutiny of the material placed on record

we find that findings recorded by the Family Court are not in
consonance with the evidence adduced by the parties and
the   learned   Judge   has   also   lost   the   sight   of   the   most
important   facts   elicited   in   the   cross   examination   of
husband.  In this premise findings recorded by the Family
Court are found to be perverse and need interference in
this appeal.  Hence we pass the following order. 
24] Appeal   is   allowed.   The   marriage   between
appellant/wife and respondent/husband stands dissolved by
a decree of divorce under Section 13(1)(i­a) of the Hindu
Marriage Act.   In the circumstances no costs.
               
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