Saturday, 24 December 2016

Whether wife forcing husband to reside separate from his parents amounts to cruelty?

 The Supreme Court in the judgment delivered on 6th
October, 2016 in case of Narendra vs. K. Meena in Civil Appeal
No.3253 of 2008 has held that in normal circumstances, a wife is
expected to be with the family of the husband after the marriage and
she becomes integral to and forms part of the family of the husband
and normally without any justifiable strong reason, she would never
insist that her husband should get separated from the family and live
only with her. It is held that a son maintaining his parents is absolutely
normal in Indian culture and ethos. It is held that in a Hindu society, it
is a pious obligation of the son to maintain the parents. If a wife
makes an attempt to deviate from the normal practice and normal
custom of the society, she must have some justifiable reason for that.
It is held by the Supreme Court that no husband would tolerate this
and no son would like to be separated from his old parents and other
family members, who are also dependent upon his income. The
persistent effort of the wife to constrain the husband to be separated
from the family would be torturous for the husband and this
constitutes an act of cruelty.
78. A perusal of the record indicates that the appellant never
wanted the respondent to stay with his parents in the matrimonial
house. Because of the cruelty meted out by the appellant to the

respondent and because of the ill treatment and misbehaviour of the
appellant with the respondent and his parents, the parents of the
respondent were required to leave the house on the 2nd floor and had
to stay with the cousin of the respondent for quiet sometime. In my
view the principles laid down by the Supreme Court in case of
Narendra (supra) squarely applies to the facts of this case. I am
respectfully bound by the judgment of the Supreme Court in case of
Narendra (supra). In my view any pressure on the part of wife on the
husband to stay away from his parents without any justifiable cause
amounts to cruelty.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.349 OF 2013
WITH
CIVIL APPLICATION NO.928 OF 2013
IN
SECOND APPEAL NO.349 OF 2013
Chitra Sachin Mapara Sachin Kumar Mapara 

 CORAM : R.D. DHANUKA, J.

 PRONOUNCED ON : 20TH DECEMBER, 2016



1. Admit. Learned counsel for the respondent waives service.
By consent of parties, second appeal is heard finally forthwith.

2. By this appeal filed under section 100 of the Code of Civil
Procedure, 1908, the appellant has impugned the judgment and
decree dated 4th May, 2013 passed by the learned District Judge – 2,
Kalyan, allowing Civil Appeal No.48 of 2012 filed by the respondent
thereby setting aside the impugned judgment and decree dated 22nd
December, 2011 in Marriage Petition No.260 of 2008, passed by the
learned Civil Judge, Senior Division, Kalyan and allowing Marriage
Petition No.260 of 2008 filed by the respondent inter-alia praying for
dissolving the marriage between the appellant and the respondent
solemnized on 7th December, 2002 and directing the respondent
herein to pay monthly permanent alimony of Rs.15,000/- to the
appellant herein and Rs.15,000/- to his daughter Komal regularly
from the date of the said judgment and decree.
3. Following substantial questions of law are formulated :-
(I) Whether the Lower Appellate Court was
justified in applying no default theory of divorce
incorporated in irretrievable break down of marriage
though it is not a ground for decree of divorce under
the provisions of the Hindu Marriage Act ?
(II) Whether the Lower Appellate Court was
justified in not framing the issue about section 23(i) (a)
of the Hindu Marriage Act ?
(III) Whether the findings recorded by the
Lower Appellate Court were without appreciating the
evidence recorded by the parties and were perverse ?

Some of the relevant facts for the purpose of deciding this
second appeal are as under :
4. The appellant herein was the respondent in the marriage
petition before the learned Joint Civil Judge, Senior Division, Kalyan
whereas the respondent herein was the original petitioner. The
appellant and the respondent got married on 7th December, 2002 at
Dombivli as per Hindu rites and customs. After their marriage, they
started cohabiting at A/402, Silver Nest, Opposite to Vijaya Bank,
Manpada Road, Dombivli (East). A daughter was born out of the said
wedlock on 11th October, 2003, who has been now residing with the
appellant (original respondent).
5. It was the case of the respondent that he had made it clear
to the appellant that he being the only son of his parents, he would be
staying with them. He purchased a flat on the second floor of the
same building on 1st December, 2002, in which he was residing with
his parents before his marriage, to the knowledge of the appellant. It
was the case of the respondent that the appellant was however, not
keen to stay with the parents of the respondent. The appellant and
the respondent started residing together in A/402, Silver Nest,
Opposite to Vijaya Bank, Manpada Road, Dombivli (East).
6. It was the case of the respondent that in the month of
March, 2003, the appellant wanted to go to the house of her sister at
Mulund. Since the festival of Holi was approaching, the respondent
asked the appellant to go to her sister's place some other time. The
appellant however, started abusing him and insisted on going to her
sister's place. She stayed with her sister for about 4 days and once

again insisted to go to her sister's place after about a month. It was
the case of the respondent that the appellant was trying to dominate
him in their relationship and since the respondent did not want to
displease her, he agreed to take her to her sister's place. When the
respondent informed about adamant behavior of the appellant to the
parents of the appellant, her parents told him that they used to ignore
her behavior and the respondent also should ignore it.
7. It was the case of the respondent that the behavior of the
appellant towards him and his parents was atrocious. The appellant
used to pick up fight with him and his family members frequently. She
wanted to invite her parents in the matrimonial house frequently. On
11th October, 2003, a baby girl was delivered by the appellant. The
respondent was at that time in U.S. It was the case of the respondent
that when the parents of the respondent went to see the child, the
parents of the appellant humiliated and insulted them. According to
the respondent, the respondent asked the appellant to come to
U.S.A. in the month of May of 2004 with daughter. The appellant
accordingly left for U.S.A. in the month of May, 2004 along with
daughter.
8. The appellant did not want the parents of the respondent
to visit and stay with the appellant and the respondent in U.S.A. The
appellant did not co-operate with the respondent and made all the
efforts not to call his parents. The parents of the respondent however,
visited the respondent in U.S.A. on 13th August, 2004. The appellant
however, abused the respondent in filthy language and had fight with
the respondent in the month of October, 2004.

9. It is the case of the respondent that the appellant abused
his father and even tried to raise hand on him and asked him to go
back to India. The appellant was in habit of making issue on petty
matters and did not want to adjust in the family. When the parents of
the respondent were in U.S.A., the appellant was avoiding to do any
household work. The mother of the respondent used to cook and
clean utensils and his father used to help in household work. The
appellant was loosing tamper upon the respondent and his parents
and tried to separate him from his parents. She never wanted their
daughter to spend the time with his parents and wanted to control her
life. The appellant used to fight with his parents on petty matters and
was using bad words in front of their daughter and made their life
miserable. The parents of the respondent were to stay in U.S.A. for
six months with the respondent but they were forced to go to India
within four months due to harassing attitude of the appellant.
10. The respondent returned to India in January, 2006 with the
appellant and daughter and started residing in the second floor flat at
Dombivli with his parents. It was the case of the respondent that the
appellant however, was not willing to stay with her parents and
started demanding to take separate house somewhere outside
Dombivli. The appellant become furious and abused him in filthy
language. The appellant alleged to have assaulted him and threw
photo frame on his person in present of his father. When the father of
the respondent intervened, the appellant humiliated him also by
using abusing language.
11. According to the respondent, the behaviour of the
appellant was very uncultured and disgraceful to his family. It was the

case of the respondent that since the parents of the respondent did
not want to break the marriage, they decided to shift their house to
their 4th floor flat and started residing separately. The said flat was
however, given on rent and therefore, they had shifted temporarily to
the house of cousin brother of the respondent for about 15 days.
12. The father of the respondent addressed a letter to the
father of the appellant informing him about the cruel behavior of the
appellant and expressed their intention to settle their dispute
amicably. By the said letter, the father of the appellant was informed
that the appellant was interested in dissolving his marriage between
the appellant and the respondent. The said letter was replied by the
father of the appellant. According to the respondent, various false
allegations were made by the father o the appellant in the said reply.
The father of the appellant also addressed letter to the mother of the
respondent making various allegations against the parents of the
respondent.
13. It was the case of the respondent that since the appellant
did not improve her behavior, the respondent moved to the 4th floor
flat in the month of November / December, 2006 and started residing
with his father. He however, used to visit his daughter Komal in the
second floor flat, who was having love and affection towards him and
his parents. It was the case of the respondent that whenever the
daughter of the parties used to visit 4th floor flat to meet her grandparents,
the appellant would hit the daughter for no reason and was
playing with emotions of daughter. The respondent has been paying
since inception the maintenance charges, electricity bill, telephone
bill, grocery bill and other household expenses of the second floor flat

which has been occupied by the appellant and the daughter Komal.
The respondent was also paying certain amount every week to the
daughter for miscellaneous expenses apart from her school and bus
fees.
14. It was the case of the respondent that the appellant was
not allowing the respondent to use electronic instruments and
gadgets lying in the second floor flat where she now resides. He was
not allowed to take daughter out of the house and to visit her grandparents.
It was the case of the respondent that the life of the
respondent became extremely miserable in view of cruelty at the
hands of the appellant which was not only serious but much higher
than wear and tear of married life. It was the case of the respondent
that there was reasonable apprehension in his mind that it would be
extremely hardship and injurious for him to live with the appellant.
15. The respondent accordingly filed a petition under section
13(1)(ia) of the Hindu Marriage Act, 1955 against the appellant in the
Court of learned Civil Judge, Senior Division, Kalyan inter-alia praying
for dissolution of their marriage. He also prayed for custody of the
daughter komal. The appellant resisted the said petition by filing the
written statement and denied all the adverse averments made by the
respondent in the said petition. It was the case of the appellant that
the father of the appellant had given various amounts in cash as well
by cheque to the father of the respondent at the time of engagement
of the appellant with the respondent. The ornaments given by the
parents of the appellant were given to the mother of the respondent in
her custody. It was her case that her parents were not allowed to stay
at the matrimonial house. She was not allowed to go to temple. She

was instructed by the parents of the respondent not to contract her
parents on phone. She was not given any money and was not
allowed to speak with any other person.
16. It was the case of the appellant that though the parents of
the respondent were residing separately, they used to visit the flat on
the second floor and used to instigate the respondent. It was the case
of the appellant that the respondent and his parents were insisting for
a male child when the appellant was pregnant in the month of
February, 2002. The appellant was asked to go to her parental house
for delivery.
17. It was the case of the appellant that when she visited
U.S.A., she was taking proper care of the respondent and daughter.
When the parents of the respondent visited U.S.A., she was also
taking their care. The respondent never informed her about the
monthly salary earned by the respondent and place of his working
and concealed all these facts from the appellant. It was her case that
in the month of May, 2008, she had been to Pune to her parents
house with daughter and when she returned to the matrimonial house
in the month of June, 2008, she found that the respondent was
residing with his parents in the flat on the 4th floor and had taken all
electronics instruments gadgets with him. It was her case that she did
not have any source of income, whereas the respondent was working
in Tata Consultancy Services as Assistant Consultant and was
earning salary of more than Rs.75,000/- per month. The appellant
also applied for maintenance for her and for her daughter in the said
proceedings.

18. Learned trial Judge framed three issues. The respondent
(original petitioner) examined himself and eight witnesses, including
his parents, his sister and brother in law, his neighbour, his cousin
and his another relative viz. Suhas Manohar Mehta and also led
documentary evidence before the learned Civil Judge, Senior
Division, Kalyan in the said Marriage Petition No.260 of 2008. The
appellant examined herself and one witness viz. Anil Jaiswal and
produced various documentary evidence, including greeting cards
and photographs.
19. Learned trial Judge passed a judgment and decree on 22nd
December, 2011 and dismissed the said Marriage Petition No.260 of
2008. Insofar as the issue as to “whether the petitioner proved that,
after marriage, the respondent subjected him with cruelty, mental and
physical ill-treatment” is concerned, the learned trial Judge answered
the said issue in negative. It is held by the learned Civil Judge, Senior
Division, Kalyan that the respondent herein was not entitled for
dissolution of marriage.
20. Being aggrieved by the said judgment and decree dated
22nd Dec, 2011, passed by the learned Joint Civil Judge, Senior
Division, Kalyan, the respondent herein preferred an appeal (Civil
Appeal No.48 of 2012) in the Court of the learned District Judge – 2,
Kalyan against the appellant herein. The learned District Judge – 2,
Kalyan formulated four points for determination. By a judgment and
decree dated 4th May, 2013, the learned District Judge – 2, Kalyan
allowed the said Civil Appeal No.48 of 2012 filed by the respondent
herein and has set aside the judgment and decree dated 22nd
December, 2011, passed by the learned Joint Civil Judge, Senior

Division, Kalyan in Marriage Petition No.260 of 2008 and allowed the
said marriage petition filed by the respondent herein and dissolved
the marriage between the appellant and the respondent by passing a
decree of divorce. Learned District Judge – 2, Kalyan however,
directed the respondent herein to pay monthly permanently alimony
of Rs.15,000/- per month to the appellant and Rs.15,000/-to the
daughter of the parties regularly from the date of the said order. The
respondent herein did not challenge the judgment and decree dated
4
th May, 2013 directing the respondent to pay permanent alimony to
the appellant and the daughter. The said judgment and decree dated
4
th May, 2013 however, is impugned by the appellant in this second
appeal filed under section 100 of the Code of Civil Procedure, 1908.
21. Mr.Warunjikar, learned counsel appearing for the appellant
invited my attention to the pleadings in the Marriage Petition No.260
of 2008 and also various portion of the oral evidence led by both the
parties. My attention is also invited to the findings rendered by the
two Courts below. He submits that though the learned trial Judge had
rightly appreciated the oral and documentary evidence led by both
the parties and had rightly dismissed the suit filed by the respondent
inter-alia praying for divorce, the first appellate Court has reversed
the findings and the decree rendered by the learned trial Judge
without appreciating oral and documentary evidence erroneously.
22. It is submitted by the learned counsel that the learned
District Judge – 2, Kalyan has reversed the decree passed by the
learned trial Judge and has passed a decree of divorce merely on the
ground that there was irretrievable break down of marriage because
of the alleged non-co-operation and the attitude of the appellant,

which could be termed as cruelty and within the meaning section
13(1)(ia) of the Hindu Marriage Act, 1955. It is submitted by the
learned counsel for the appellant that divorce could not have been
granted by the first appellate Court on the ground of the alleged
irretrievable break down of marriage. He submits that no such ground
of irretrievable break down of marriage is provided under section
13(1)(ia) of the Hindu Marriage Act, 1955. He submits that the entire
decree of divorce thus passed by the first appellate Court is contrary
to the provisions of Hindu Marriage Act, 1955 and contrary to the law
laid down by the Supreme Court and thus deserves to be set aside
on the said ground alone.
23. Learned counsel for the appellant invited my attention to
paragraph 27 of the judgment and decree passed by the learned trial
Judge and would submit that after considering the oral and
documentary evidence and also the pleadings filed by both the
parties, learned trial Judge had rightly held that the allegations made
by the respondent about the alleged misbehavior, quarrelsome and
unpredictable behavior of the appellant was totally vague and
baseless and without any evidence. He submits that the learned trial
Judge rightly held that normally some ups and down, wear and tear
are bound to be there in the matrimonial life and no spouse however,
could make any capital of such petty issues. He submits that the
learned trial Judge has rightly held that the instances alleged by the
respondent against the appellant in respect of the alleged cruelty did
not constitute the act of cruelty as envisaged under section 13(1) (ia)
of the Hindu Marriage Act, 1955.
24. It is submitted by the learned counsel for the appellant that

the witnesses examined by the respondent were relatives and close
friends of the respondent and thus were interested witnesses and
their evidence thus could not have been relied upon by the first
appellate Court in the impugned judgment and decree while setting
aside the judgment and decree rendered by the learned trial Judge.
25. It is submitted by the learned counsel that admittedly till
2006, the parties were staying together. The marriage petition was
filed by the respondent only in the month of May, 2008. He submits
that the instances considered by the first appellate Court till January,
2006 in the impugned judgment and decree were already condoned
by the respondent. He submits that the first appellate Court ought to
have scrutinized the alleged acts of cruelty which were condoned by
the respondent and which were not condoned before passing any
decree of divorce. The first appellate Court however, did not carry out
any such exercise. He submits that till the month of January, 2006,
both the parties were staying together and were cohabiting.
26. It is submitted that even if the parties was staying
separately after filing of the petition, the same cannot be a ground for
granting divorce under the provisions of the Hindu Marriage Act. He
submits that the first appellate Court did not consider the aspect of
condonation of cruelty at all in the impugned judgment and decree.
He submits that the allegations of the respondent that the daughter
was not allowed to join a particular course by the appellant was
neither proved nor amounted to cruelty on the part of the appellant.
He submits that even after filing of the marriage petition by the
respondent in the year 2008, the appellant and the respondent were
staying in the second floor flat together with daughter till 2010. He

submits that the alleged cruelty on the part of the appellant was thus
condoned till 2010. The first appellate Court thus could not have
passed any decree of divorce on the ground of the alleged cruelty
though such alleged cruelty, if any, was condoned by the respondent
in view of the respondent staying with the appellant in the same
house till 2010.
27. It is submitted by the learned counsel for the appellant that
the alleged incident of Rakshabandhan day considered by the first
appellate Court when the alleged fight took place between the
appellant and the respondent in presence of the sister of the
respondent was also neither proved, nor amounted to any cruelty. He
submits that in any event even the said incident of cruelty was
condoned by the respondent.
28. It is submitted by the learned counsel for the appellant that
the respondent in his evidence had admitted that even till 2010, the
respondent used to visit flat no.202 on the second floor to meet the
daughter of the appellant and the respondent.
29. Insofar as the evidence led by the parents of the
respondent and sister is concerned, it is submitted that by none of the
witnesses examined by the respondent proved any incidence of
cruelty on the part of the appellant. He submits that the other
witnesses including the brother-in-law of the respondent and
neighbour did not have any personal knowledge of what transpired in
the matrimonial house of the appellant, which amounted to any
cruelty on the part of the appellant. He submits that the evidence of
the neighbour of the respondent and cousin was totally hearsay and

could not have been relied upon by the first appellate Court. Those
witnesses were not regularly visiting the house of the parties. He
submits that merely on the ground of wear and tear in the relationship
of husband and wife which normally happens, a decree of divorce
which is very drastic order, could not have been passed by the first
appellate Court.
30. It is submitted by the learned counsel for the appellant that
the respondent has removed himself from the company of the
appellant wife deliberately. From 2008 onwards, the respondent is
staying away from the appellant for which act he himself was
responsible. He submits that the respondent thus could not be
allowed to take advantage of his own wrong. The appellant was ready
and willing to co-habit with the respondent. He submits that in his
cross-examination, when he was asked whether he would cohabit
with the appellant, he categorically refused to co-habit with the
appellant. Learned counsel appearing for the appellant placed
reliance on the Law Commission Report of the year 1970 and
submits that though the Law Commission recommended the
amendment and to include the ground of irretrievable break down of
marriage in the Hindu Marriage Act, 1955, but the fact remains that
no such amendment is carried out in the provisions of the said Act.
31. It is submitted that the Court has to find out the fault of the
party who is responsible for the other party staying separately with
that party. Learned counsel for the appellant placed reliance on the
judgment of the Supreme Court in case of Samar Ghosh vs. Jaya
Ghosh, (2007) 4 SCC 511 on the issue of cruelty. He submits that
the Supreme Court in the said judgment construed section 13(1)(ia)

of the Hindu Marriage Act and has held that to construe cruelty, the
conduct complained of should be “grave and weighty” so as to come
to the conclusion that the petitioner spouse cannot be reasonably
expected to live with the other spouse.. It must be something more
serious than “ordinary wear and tear of married life”. He submits that
in this case the respondent had failed to prove that the alleged
conduct of the appellant was more serious than ordinary wear and
tear married life.
32. Learned counsel for the appellant placed reliance on the
judgment of the Supreme Court in case of Anil Kumar Jain vs.
Maya Jain, (2009) 10 SCC 415 and in particular paragraph 27 to 31
and would submit that in the said judgment, the Supreme Court had
invoked extraordinary powers under Article 142 of the Constitution of
India and held that the fact that the marriage had broken down
irretrievably, the same was not a ground for grant of divorce under
section 14 or 13(B) of the Hindu Marriage Act, 1955. He submits that
the judgment and decree passed by the first appellate Court is thus
contrary to law laid down by the Supreme Court. He submits that in
any event powers exercised by the Supreme Court under Article 142
of the Constitution of India could not have been exercised by the first
appellate Court.
33. Learned counsel for the appellant placed reliance on the
judgment of the Supreme Court in case of A. Jayachandra vs.
Aneel Kaur, 2005(2) SCC 22 in support of his submission that long
absence of physical company cannot be a ground for divorce since
the same was on account of the respondent. The second last
paragraph of the said judgment was relied upon by the learned

counsel. Learned counsel for the appellant placed reliance on the
judgment of the Supreme Court in case of Manish Goel vs. Rohini
Goel, delivered on 5th February, 2010 and more particularly on
paragraphs 11, 14 and 15 in support of his submission that even
when the Supreme Court exercised powers under Article 142, the
Supreme Court generally need not pass any order in contravention of
or ignoring the statutory provisions nor exercised such powers merely
on the ground of sympathy.
34. It is submitted by the learned counsel that the impugned
judgment and decree was passed by the first appellate Court granting
divorce in the year 2013. He submits that the respondent has totally
withdrawn from the building in which the appellant and the
respondent were staying by vacating the flat even from the 4th floor
where he had shifted to stay with his parents. He submits that the
present whereabouts of the respondent is not known to the appellant.
He submits that inspite of the order passed by the trial Court granting
access to the daughter of the respondent, for quite some time, the
respondent does not come for access of daughter and is creating
such a situation.
35. Learned counsel for the appellant place reliance on
section 23(1)(a) of the Hindu Marriage Act and submits that since the
respondent has withdrawn from the matrimonial home and his
whereabouts are not known, the respondent cannot be allowed to
take advantage of his own wrong and thus no divorce on that ground
can be granted to the respondent who has been taking advantage of
his own wrong. He submits that the first appellate Court ought to have
framed specific issue based on the provisions of section 23(1)(a) of

the Hindu Marriage Act, 1955, which the first appellate Court failed to
frame. He submits that the first appellate Court has also failed to
appreciate that the respondent had condoned the alleged cruelty
meted by the appellant to the respondent. Learned counsel for the
appellant placed reliance on the judgment of the Supreme Court in
case of Santosh Hazari vs. Purushottam Tiwari, (2001) 3 SCC 179
and more particularly paragraphs 10, 11 and 12 in support of his
submission that since by the impugned judgment and decree passed
by the first appellate Court, the rights of the appellant are affected,
substantial question of law has arisen from the judgment and
judgment of the first appellate Court and thus such substantial
question of law has to be adjudicated upon by this Court in this
second appeal filed under section 100 of the Code of Civil Procedure,
1908.
36. Learned counsel for the appellant placed reliance on the
judgment of the Supreme Court in case of State Bank of India &
Ors. vs. S.N. Goyal, (2008) 8 SCC 92 and more particularly
paragraphs 12 to 15 in support of his submission that the Court has
to ensure that the cases involving substantial question of law are not
rejected by stating that no substantial question of law arisen
37. It is submitted by the learned counsel for the appellant that
the first appellate Court ought to have appreciated that the decree of
divorce granted by the first appellate Court would seriously prejudice
the career and life of not only the appellant but also the grown up
daughter of the appellant and the respondent.
38. It is lastly submitted by the learned counsel for the

appellant that the respondent had committed default in making
payments of maintenance awarded by the first appellate Court. He
submits that the amount of maintenance awarded by the first
appellate Court is not sufficient for the maintenance of the appellant
and her daughter and also considering the income of the
respondents.
39. Ms.Sarnaik, learned counsel appearing for the respondent
on the other hand invited my attention to the issues framed by the
learned trial Judge and also by the first appellate Court and also the
points formulated by the first appellate Court and submits that the
learned trial Judge has not rejected the petition for divorce filed by the
respondent on the ground that the respondent had taken any
advantage of any nature whatsoever under section 23(1)(a) of the
Hindu Marriage Act, 1955. She invited my attention to some of the
paragraphs of the judgment and decree passed by the learned trial
Judge in support of her submission that though the learned trial
Judge had rendered various findings on various instances on the part
of the appellant which amounted to cruelty, has however, had
dismissed the petition for divorce on the ground that those instances
were reflected wear and tear of the matrimonial life and no decree of
divorce could e passed by the learned trial Judge. She submits that
the learned trial Judge was not deciding the criminal matter and ought
to have decided the instance of cruelty on the basis of preponderance
of probabilities.
40. It is submitted by the learned counsel for the respondent
that the respondent had issued the cheque of Rs.1,50,000/- and
Rs.90,000/- respectively and had sent the said cheques along with

letter of the advocate representing the respondent to the appellant on
5
th November, 2014. The said cheques however, were returned by
the appellant. My attention is invited to the order dated 12th October,
2015 passed by K.K. Tated, J. permitting the respondent to deposit
the amount in the account of the appellant. It is submitted that the
respondent has not not committed any default in making payment of
maintenance amount for the appellant and the daughter.
41. It is submitted by the learned counsel that the appellant
never filed any application for restitution of conjugal rights and thus
cannot make any grievance that the respondent had been staying
separately since 2008 of 2010.
42. Learned counsel for the respondent invited my attention to
paragraphs 26 onwards of the judgment and decree passed by the
first appellate Court and would submit that the first appellate Court
has not passed a decree of divorce only on the ground of
irretrievable break up of marriage but on various grounds. The first
appellate Court has rendered a finding that there was cruelty on the
part of the appellant upon the respondent as well as upon the parents
of the respondent which had made the life of the respondent
miserable. She submits that the findings of fact rendered by the first
appellate Court are rendered after considering the oral and
documentary evidence and the findings being not perverse, cannot
interfere with by this Court in this second appeal filed under section
100 of the Code of Civil Procedure, 1908.
43. It is submitted by the learned counsel that the trial Court as
well as appellate Court has held that the cruelty was committed by

the appellant. She submits that no advantage of any nature
whatsoever nature was taken by the respondent. The appellant did
not file any cross-objection before the first appellate Court contending
that the decree for divorce could not have been passed also on the
ground that the respondent had taken advantage under section 23(1)
(a) of the Hindu Marriage Act. She submits that the respondent has
paid the maintenance in compliance with the order passed by the first
appellate Court and was also paying separate amount through out for
maintaining the flat which is occupied by the appellant and the
daughter of the parties and was incurring expenses and was paying
the amount separately for the maintenance of daughter in addition to
the maintenance awarded by the first appellate Court.
44. Insofar as the submission of the learned counsel for the
appellant that there was condonation of the alleged cruelty
committed by the appellant upon the respondent and his family
members is concerned, it is submitted that admittedly the parties had
returned from U.S. in the month of January, 2006. The respondent
had left the company of the appellant in the month of November /
December, 2006 and started staying with his parents on 4th floor flat.
It is submitted that on the Rakshabandhan day in the month of
August, 2006, the appellant had driven up the sister and the parents
of the respondent from the house. She submits that the first appellate
Court has rightly appreciated the evidence of sister, brother-in-law of
the respondent and the parents, who were eye witnesses to various
incidences of cruelty committed by the appellant. She submits that
the respondent was tolerating the appellant and that would not
amount to condonation of cruelty. She submits that if the parties were
staying happily without the company of each other, that could amount

to condonation of cruelty and not otherwise.
45. Learned counsel for the respondent also placed reliance
on the correspondence exchanged between the parents of the parties
and more particularly the allegations made by the parents of the
appellant. She submits that the parents of the appellant had made
various frivolous and harsh allegations against the parents of the
respondent.
46. It is submitted that merely because the respondent was
visiting the daughter in the flat on the second floor, that would not
amount to condonation of cruelty on the part of the appellant by the
respondent. The visit by the respondent in the school on the day of
school function of the daughter for the welfare of the daughter also
did not amount to condonation of cruelty. She submits that after 2006,
the appellant and the respondent never stayed together, however, the
respondent has been paying the society bills, electricity bills and
various other payments in respect of the said flat which cannot
amount to condonation of cruelty. She submits that the payment is
being made by the respondent in respect of the said flat though the
respondent does not stay therein. She submits that the good gesture
on the part of the respondent in allowing the appellant to stay in the
said flat and in making payment of maintenance and other charges
does not amount to condonation of cruelty. She submits that no such
ground has been admittedly raised by the appellant at any stage
before the two Courts below and thus cannot be allowed to raise this
ground for the first time across the bar.
47. Learned counsel for the respondent invited my attention to

various paragraphs of the oral evidence led by both the parties in
support of her submission that 8 witnesses examined by the
respondent had proved beyond reasonable doubt the cruelty on the
part of the appellant upon the respondent and his parents. Learned
counsel submitted a chart in support of this submission pointing out
the relevant portion of the oral evidence led by both the parties.
48. It is submitted by the learned counsel for the respondent
that since the appellant was initially working and even if not working
as on today as alleged by the appellant, since the appellant could
have continued her job, she is not entitled to be awarded any
maintenance or in any event enhancement of maintenance. She
submits that in any case, the appellant has not made any application
for enhancement of maintenance. She submits that since the
appellant has capacity to earn, she is not entitled to seek any
maintenance. She submits that without prejudice to the rights and
contentions of the respondent, the respondent is ready and willing to
pay additional amount of Rs.10,000/- per month to the daughter from
the date as may be ordered by this Court for the welfare of the
daughter. She submits that till the month of October, 2016, the
respondent has already paid maintenance to the appellant and the
daughter. She submits that the respondent is ready and willing to
accept the custody of daughter also.
49. Learned counsel for the respondent placed reliance on the
following judgments :
1) The Supreme Court in case of Narendra vs. K.
Meena, delivered on 6th October, 2016 in Civil Appeal
No.3253 of 2008.

2) The Supreme Court in case of Samar Ghosh
vs. Jaya Ghosh, (2007) 4 SCC 511.
3) This Court in case of Chitra Sachin Mapara
vs. Sachin Kumar Mapara, delivered on 22nd July, 2013
in Civil Application No.928 of 2013 in Second Appeal
No.349 of 2013.
4) The Supreme Court in case of K. Srinivas vs.
K. Sunita, delivered on 19th November, 2014 in Civil
Appeal No.1213 of 2006.
5) The Karnataka High Court in case of Dr.E.
Shanthi vs. Dr.H.K. Vasudeo, AIR 2005 Karnataka, 417,
and
6) The Rajasthan High Court in case of Govind
Singh vs. Smt.Vid, AIR 1999 Rajasthan 304,
in support of her submission that the spouse is capable of
earning and his livelihood but not earning is not entitled to claim
maintenance and in support of various submissions made aforesaid.
She also distinguished the judgments relied upon the learned counsel
for the appellant.
50. Mr.Warunjikar, learned counsel for the appellant in
rejoinder distinguished the judgments relied upon by the learned
counsel for the respondent and would submit that the judgments
relied upon by the respondent on the issue of maintenance are under
section 24 of the Hindu Marriage Act which provides for interim
maintenance, whereas in this case the first appellate Court has
awarded permanent alimony. He submits that the respondent has
admittedly not challenged the order of maintenance passed by the

first appellate Court. He submits that though the appellant was
employed before marriage, after her marriage with the respondent,
she was rendering the services to family and was looking after the
child and is unemployed. He submits that the allegations of the
respondent that the appellant was working has been disbelieved by
both the Courts below. Therefore the respondent has not come
forward to contribute any amount for the welfare of daughter.
51. It is submitted that Article 142 of the Constitution of India is
not applicable to this Court or was not applicable to the first appellate
Court and thus the decree for divorce could not have been passed on
the ground of irretrievable break down of marriage. The judgments
relied upon by the learned counsel for the respondent are
distinguished on the ground that none of those documents were
applicable to the facts of this case.
52. It is submitted that it was the duty of the first appellate
Court to frame additional issue under section 23(1)(a) of the Hindu
Marriage Act and after framing that issue, ought to have rendered a
finding that since the respondent had taken advantage of the
situation, no decree for divorce could be granted. He submits that
after the evidence is led, if the Court comes to the conclusion that the
respondent had taken advantage, the Court was bound to consider
the issue even at that stage. He submits that the first appellate Court
could have remanded the matter back to the learned trial Judge for
framing additional issue under section 23(1)(a) of the Hindu Marriage
Act and ought to have directed the learned trial Judge to render a
finding on that issue also.

53. Learned counsel for the appellant placed reliance on
section 107(2) of the Code of Civil Procedure, 1908 in support of his
submission that the powers of the first appellate Court are very wide
and the matter ought to have been remanded back to the learned trial
Judge for framing additional issues and for adjudication thereon.
REASONS AND CONCLUSIONS :
54. Insofar as the submission of the learned counsel for the
appellant that the learned trial judge as well as the first appellate
Court ought to have framed additional issues under section 23(1)(A)
of the Hindu Marriage Act, 1955 and ought to have rendered a finding
that the respondent had taken advantage of the situation by keeping
himself away from the company of the applicant since 2006 or that
the matter ought to have been remanded to the trial Court for framing
additional issue and to adjudicate upon the said additional issue is
concerned, it is not in dispute that no such issue was raised by the
appellant either before the trial Court or before the first appellate
Court. Though the appellant had succeeded before the learned trial
Court and the divorce petition filed by the respondent came to be
dismissed on various grounds, no cross objection was filed by the
appellant before the first appellate Court contending that the petition
for divorce filed by the respondent ought to have rejected also on the
ground of alleged advantage taken by the respondent by relying upon
section 23(1)(a) of the Hindu Marriage Act, 1955.
55. A perusal of the record indicates that no such issue was
raised by the respondent even during the course of arguments before
the first appellate Court. Be that as it may, on perusal of the record
indicates that the appellant was responsible for the respondent
keeping himself away from the company of the appellant and not

cohabiting with the appellant for last several years.
56. A perusal of the section 23(1)(a) of the Hindu Marriage
Act, 1955 clearly indicates that if the Court is satisfied that if any of
the grounds for granting relief exists and the petitioner is in any way
taking advantage of his or her own wrong or disability for the purpose
of such relief except the reliefs set out in the said provisions, the
Court cannot grant such relief in favour of such party who has taken
advantage of his/her wrong. In my view no such case was made out
by the appellant before the learned trial judge as well as before the
first appellate Court that the respondent had taken advantage of his
own alleged wrong or disability for the purpose of granting relief of
divorce in his favour. No such material was available before the two
Courts below to refuse reliefs in favour of the respondent for granting
divorce in favour of the respondent on the ground of the respondent
allegedly taking advantage of his own alleged wrong. I am thus not
inclined to accept the submission of the learned counsel for the
appellant that two Courts below ought to have framed additional
issues on the ground that the first appellate Court ought to have
refused to grant relief of divorce in favour of the respondent on the
ground of the respondent allegedly taking advantage of his alleged
wrong or to remand the matter to the trial Court for framing such issue
and to adjudicate upon the same. There is thus no merit in this
submission of the learned counsel for the appellant.
57. Insofar as submission of the learned counsel for the
appellant that though the respondent had been permitted to have
access to the daughter of the parties, since last several years, the
respondent has not been visiting the daughter for the purpose of

access which shows that the respondent has deliberately kept himself
away from the appellant and the daughter and has created such a
situation which would prevent the appellant from reconciling the
situation is concerned, there is no dispute that the appellant did not
file any application at any point of time for seeking relief of restitution
of conjugal rights before the learned trial judge. A perusal of the
evidence recorded by both the parties indicates that the appellant
herself was responsible for this situation and not the respondent. In
my view there is thus no substance in this submission of the learned
counsel for the appellant.
58. Insofar as issue of alleged non-payment of permanent
alimony ordered by the first appellate Court in the sum of Rs.15,000/-
per month to the appellant and Rs.15,000/- to the daughter of the
parties regularly is concerned, a perusal of the record indicates that
though the respondent had offered the payment to the appellant, the
appellant had refused to accept the payment for some period. This
Court therefore passed an order dated 12th October, 2015 permitting
the respondent to deposit the amount in the account of the
respondent. Learned counsel for the respondent invited my attention
to the letters addressed by the learned advocate representing the
respondent forwarding the cheques of Rs.1,50,000/- and Rs.19,000/-
respectively to the learned advocate representing the appellant which
cheques were however returned by the appellant. It is not in dispute
that pursuant to the order passed by this Court on 12th October,2015,
the respondent has paid the entire arrears of the permanent alimony
to the appellant and their daughter.
59. Insofar as submission of the learned counsel for the
appellant that the amount of Rs.15,000/- towards permanent alimony

to the appellant and Rs.15,000/- to the daughter is not sufficient to
maintain the appellant and the daughter and that considering the
income of the respondent, more amount ought to have been awarded
by the first appellate Court is concerned, it is urged by the learned
counsel for the respondent that though the appellant is capable of
earning herself, she claims to be unemployed and thus no order of
maintenance ought to have been passed by the first appellate Court
is concerned, in my view since the respondent has not challenged the
judgment and decree of the first appellate Court directing the
respondent to pay permanent alimony to the appellant, the
respondent cannot be allowed to urge this submission before this
Court. Insofar as permanent alimony awarded to the daughter is
concerned, learned counsel for the respondent has made a statement
before this Court that maintenance of the daughter is the
responsibility of the respondent. Without prejudice to his rights and
contentions, the respondent showed his readiness and willingness to
pay additional amount of Rs.10,000/- to the daughter from such date
as may be ordered by this Court for the welfare of the daughter. In
my view the daughter deserves be provided an additional permanent
alimony in the sum of Rs.10,000/- per month in view of the statement
made by the learned counsel for the respondent from the date of filing
this appeal.
60. Insofar as the submission of the learned counsel for the
appellant that though there is no ground of 'irretrievable break down
of marriage' under the provisions of Hindu Marriage Act, 1955, the
first appellate Court has granted decree of divorce on that ground
which is contrary to the provisions of the Hindu Marriage Act, 1955
and contrary to the law laid down by the Supreme Court is concerned,

there is no dispute that there is no ground of 'irretrievable break down
of marriage' available under the provisions of Hindu Marriage Act,
1955. Supreme Court in case of Anil Kumar Jain (supra) has held
that the Supreme Court in special circumstances can pass
appropriate orders to do justice to the parties in a given fact situation
by invoking its powers under Article 142 of the Constitution, but in
normal circumstances the provisions of the statute have to be given
effect to. It is held that although irretrievable break-down of marriage
is not one of the grounds indicated whether under Sections 13 or 13B
of the Hindu Marriage Act, 1955, for grant of divorce, the said doctrine
can be applied to a proceeding under either of the said two provisions
only where the proceedings are before the Supreme Court. It is held
that this doctrine of irretrievable break-down of marriage is not
available even to the High Courts which do not have powers similar to
those exercised by the Supreme Court under Article 142 of the
Constitution. The principles laid down by the Supreme Court in case
of Anil Kumar Jain (supra) are binding on this Court.
61. The question however that arises for consideration of this
Court is whether the first appellate Court has passed a decree for
divorce in favour of the respondent only on the ground of irretrievable
break down of marriage or not. A perusal of the judgment and decree
passed by the first appellate Court on 4th May, 2013 and more
particularly paragraph (41) indicates that the first appellate Court has
observed that the evidence discloses that the marriage has broken
down beyond repairs and it was harmful and injurious for the
respondent herein to stay with his wife due to day to day quarrels,
arrogance, indecent behaviour and nagging attitude and the marriage
between the parties was dead for all practical purposes and it could

be said that there was irretrievable break down between the parties.
62. In other paragraphs of the said judgment and decree, the
first appellate Court however has appreciated the oral evidence led
by both the parties and has rendered a categorical finding that the
evidence discloses that the appellant was snatching his collar and
was abusing him on several occasions and the life of the respondent
became miserable. The first appellate Court held that the evidence
discloses that the appellant was abusing the father of the respondent
and was raising hand on him which fact totally disturbed the peace of
the house. She used to pick up quarrels with the respondent and
threw photo frame on him and when his father tried to resolve the
matter, she insulted him and humiliated him by using abusive
language. The first appellate Court also rendered various findings on
cruelty meted out by the petitioner to the respondent and has
described various such instances of cruelty on the part of the
appellant in the impugned order. The findings of the first appellate
Court would be highlighted in the later part of the judgment in detail.
63. In my view, learned counsel for the respondent is thus right
in her submission that the first appellate Court has passed a decree
not only on the ground of irretrievable break down of marriage but
mainly on the ground of cruelty meted out by the appellant upon the
respondent and his parents which is duly proved by the respondent.
64. A perusal of the oral evidence led by the respondent
indicates that in the month of January 2006, the respondent had
returned to India along with the appellant and their daughter and
started residing in flat no.201 with the parents of the respondent. The

evidence further indicates that the parents of the respondent were
ousted by the respondent from the flat no.201 by the appellant and
therefore they started residing in the house of the cousin of the
respondent, Mr.Milind Mapara since flat no.204 on the 4th floor was
given on rent and was not available at that point of time. After two
years, the respondent and his parents left flat no.402 and shifted to
some other place. The respondent had examined 8 witnesses
including himself, his father, his sister, husband of his sister, his
mother, a cousin and a neighbour. The appellant examined herself
and one cycle owner in support of her case.
65. With the assistance of the learned counsel for the
appellant and the respondent, I perused the oral evidence led by the
witnesses examined by both the parties in detail. The witnesses
examined by the respondent have deposed about the quarrels,
attitude of the appellant and on the issue of cruelty meted out by the
appellant on the respondent and his parents. The appellant used to
pick up fight on petty issues with the respondent and his parents. The
appellant had also picked up the quarrel with the respondent for not
permitting the appellant to visit her sister's house and for permitting
the parents of the appellant to stay with the respondent and his
parents in the matrimonial house. Several such continuous incident
of quarrel picked up by the appellant with the respondent, and his
parents and his sister were brought on record by the witnesses
examined by the respondent. The appellant was also not permitting
the respondent to stay with the parents of the respondent on one or
the other ground and used to humiliate the parents of the respondent
on several occasions. The appellant was quite often abusing the
respondent and has also thrown photo-frame on the respondent. The

appellant had also created a quarrel on the Rakshabandhan day in
the month of August 2006 and ousted the sister of the respondent
from the house. She had humiliated and ill treated the parents of the
respondent and had forced them to leave the house and to stay in the
house of their relatives.
66. A perusal of the record further indicates that the parents of
the appellant also addressed various letters to the parents of the
respondent and made various allegations against them. As a result
of continuous harassment and cruelty on the part of the appellant, the
respondent had to leave the flat on the 2nd floor where he was staying
with the appellant and was required to move in the flat no.402 in the
month of November 2006. The evidence on record clearly indicates
that since November 2006, the appellant and the respondent are not
staying together. A perusal of the record further indicates that the
appellant was not allowing the daughter of the parties to be in
company of the parents of the respondent and was trying to keep
some distance though the parents of the respondent had lot of love
and affection for the grand daughter. The appellant was also insisting
to have a separate house away from the place of residence of the
parents and wanted the respondent to stay away from his parents.
67. A perusal of the order passed by the learned trial judge
indicates that though the learned trial judge took cognizance of some
of such incidents amounting to cruelty on the part of the appellant
upon the respondent, the learned trial judge however took a casual
approach in the matter by considering such continuous incidents of
cruelty as normal wear and tear of the matrimonial relations between
the husband and wife.

68. A perusal of the impugned judgment and decree passed
by the first appellate Court however indicates that the first appellate
Court has considered the entire oral evidence led by both the parties
and have rightly appreciated the oral evidence in correct perspective.
In my view though some of the incidents of cruelty alleged by the
respondent against the appellant were trivial in nature, the Court has
to consider the overall behaviour and treatment of the one spouse on
the other spouse and has to consider the cumulative effect of such
continuous act of cruelty while considering a petition for divorce. In
my view, the first appellate Court was right in considering the
cumulative effect of all such incidents forming part of the cruelty
meted out by the appellant upon the respondent and his parents while
passing a decree of divorce in favour of the respondent and against
the appellant.
69. If the cumulative effect of the acts of the cruelty on the part
of one spouse on the other spouse makes the life of the other spouse
miserable and it is not possible for other spouse to stay with the such
spouse happily, a decree of divorce can be granted by the Court on
the ground of cruelty. I do not find any infirmity in the order passed
by the first appellate Court granting divorce on the ground of cruelty
meted out by the appellant upon the respondent and his parents. In
my view, the findings of fact rendered by the first appellate Court
while granting decree of divorce in favour of the respondent being not
perverse, cannot be interfered with by this Court under section 100 of
the Code of Civil Procedure.
70. Insofar as submission of the learned counsel for the

appellant that most of the witnesses examined by the respondent
were his relatives and they were interested persons and their
evidence could not have considered by the first appellate Court is
concerned, a perusal of the record indicates that the decree of
divorce granted by the first appellate Court is not merely on the basis
of the evidence of the close relatives but also based on evidence of
others. Be that as it may, in my view in case of matrimonial dispute,
the family members and close relatives who have witnessed the
behaviour and cruelty on the part of the appellant, their evidence
cannot be discarded on the ground that they were relatives and
interested witnesses in the matter and could not have told the truth
though were subjected to cross examination.
71. Insofar as submission of the learned counsel for the
appellant that the respondent was visiting the flat on the 2nd floor for
having access of the daughter even after November 2006 for quiet
sometime and that would amount to the respondent staying with the
appellant and in view of the respondent paying the maintenance of
the said flat and paying some amount to the daughter would amount
to condonation of the alleged cruelty is concerned, in my view there is
no substance in this submission of the learned counsel for the
appellant. Merely because the respondent was having access to the
daughter pursuant to the permission granted by the Court
periodically, such visit to have access of the daughter cannot be
construed as condonation of cruelty on the part of the appellant.
Similarly the payment of maintenance and other outgoings in respect
of the said flat including the electricity bills and the payment if any
made for the welfare of the daughter after the respondent started
staying separately also cannot amount to condonation of cruelty.

72. The dispute between the parties continued at least since
November 2006 who had been staying separately. I am not inclined
to accept the submission of the learned counsel for the appellant that
the appellant and the respondent were staying together even after
November 2006 till 2008 or 2010. It is not in dispute that the appellant
never applied for restitution of conjugal rights in the divorce
proceedings filed by the respondent.
73. In my view, the prior acts of cruelty can be considered as
condoned only if the parties would have stayed together happily and
the past acts of cruelty on the part of one spouse would have been
pardoned by the affected spouse so as to continue their life
peacefully and happily and the spouses would have restored their
matrimonial life as was before the commencement of acts of cruelty
by one spouse on the another.
74. In my view the submission of the learned counsel for the
appellant that since November 2006, the respondent has been
avoiding to stay with the appellant and on the another hand his
submission that the respondent had been staying with the appellant
and her daughter by visiting the matrimonial home is inconsistent and
contradictory with each other.
75. Supreme Court in case of Samar Ghosh (supra) has set
out several illustrations and instance which can amount to cruelty. It is
held that sustained unjustifiable conduct and behaviour of one spouse
actually affecting physical and mental health of the other spouse, the
treatment complained of and the resultant danger or apprehension

must be very grave, substantial and weighty will amount to cruelty.
The another illustration given in the said judgment is on consideration
of complete matrimonial life of the parties, acute mental pain, agony
and suffering as would not make possible for the parties to live with
each other could come within the broad parameters of mental cruelty.
It is held that mere trivial irritations, quarrels, normal wear and tear of
the married life which happens in day to day life would not be
adequate for grant of divorce on the ground of mental cruelty. The
married life should be reviewed as a whole and a few isolated
instances over a period of years will not amount to cruelty. The illconduct
must be persistent for a fairly lengthy period, where the
relationship has deteriorated to an extent that because of the acts
and behaviour of a spouse, the wronged party finds it extremely
difficult to live with the other party any longer, may amount to mental
cruelty. In my view, the evidence on record clearly indicates that the
cruelty meted out by the appellant upon the respondent would fall
under some of such instances and the illustration set out by the
Supreme Court in case of Samar Ghosh (supra).
76. Insofar as judgment of the Supreme Court in case of A.
Jayachandra (supra) relied upon by the learned counsel for the
appellant is concerned, the trial Court has rendered a finding that the
material on record was not sufficient to prove any mental cruelty. It is
held by the Supreme Court that the question of mental cruelty has to
be considered in the light of the norms of marital ties of the particular
society to which the parties belong, their social values, status,
environment in which they live. It is held that long absence of physical
company cannot be a ground for divorce if the same was on account
of the conduct of the husband. In this case the evidence on record

clearly indicates that the respondent was required to leave the
company of the appellant due to her continuous acts of cruelty upon
the respondent and his parents. The appellant was solely
responsible for the respondent staying separately and away from the
appellant. The judgment of Supreme Court in case of A.
Jayachandra (supra) thus would not assist the case of the appellant.
77. The Supreme Court in the judgment delivered on 6th
October, 2016 in case of Narendra vs. K. Meena in Civil Appeal
No.3253 of 2008 has held that in normal circumstances, a wife is
expected to be with the family of the husband after the marriage and
she becomes integral to and forms part of the family of the husband
and normally without any justifiable strong reason, she would never
insist that her husband should get separated from the family and live
only with her. It is held that a son maintaining his parents is absolutely
normal in Indian culture and ethos. It is held that in a Hindu society, it
is a pious obligation of the son to maintain the parents. If a wife
makes an attempt to deviate from the normal practice and normal
custom of the society, she must have some justifiable reason for that.
It is held by the Supreme Court that no husband would tolerate this
and no son would like to be separated from his old parents and other
family members, who are also dependent upon his income. The
persistent effort of the wife to constrain the husband to be separated
from the family would be torturous for the husband and this
constitutes an act of cruelty.
78. A perusal of the record indicates that the appellant never
wanted the respondent to stay with his parents in the matrimonial
house. Because of the cruelty meted out by the appellant to the

respondent and because of the ill treatment and misbehaviour of the
appellant with the respondent and his parents, the parents of the
respondent were required to leave the house on the 2nd floor and had
to stay with the cousin of the respondent for quiet sometime. In my
view the principles laid down by the Supreme Court in case of
Narendra (supra) squarely applies to the facts of this case. I am
respectfully bound by the judgment of the Supreme Court in case of
Narendra (supra). In my view any pressure on the part of wife on the
husband to stay away from his parents without any justifiable cause
amounts to cruelty.
79. The Supreme Court in the judgment delivered on 19th
November, 2014 in case of K. Srinivas vs. K. Sunita in Civil Appeal
No.1213 of 2006 has observed that the powers under Article 142 of
the Constitution are plenary powers and are bestowed by the
Constitution of India only on the Supreme Court and not on any other
Court. It is held that the Law Commission of India in its Reports in
1978 as well as in 2009 has recommended the introduction of
irretrievable breakdown of marriage as a ground for dissolution of
marriage; the Marriage Laws (Amendment) Bill of 2013 incorporating
the ground has even received the assent of the Rajya Sabha. It is,
however, highly debatable whether, in the Indian situation, where
there is rampant oppression of women, such a ground would at all be
expedient. But that controversy would be considered by the Lok
Sabha.
80. The Supreme Court in the judgment delivered on 18th April,
2011 in Civil Appeal No.6288 of 2008 in case of Hitesh Bhatnagar
vs. Deepa Bhatnagar has held that the Supreme Court has

extraordinary power to dissolve a marriage on the ground of
irretrievably break down of marriage only when it is impossible to
save the marriage and all efforts made in that regard would, to the
mind of the Court, be counter-productive.
81. Insofar as submission of the learned counsel for the
appellant that since the rights of the appellant are affected in view of
the judgment and decree passed by the first appellate Court is
concerned and thus substantial question of law arises from the said
judgment and it has to be adjudicated upon by this Court under
section 100 of the Code of Civil Procedure, 1908 is concerned, by
consent of parties this Court has already heard the second appeal
finally by formulating some of the substantial questions of law after
hearing both parties. The judgment of Supreme Court in case of
Santosh Hazari (supra) and in case of State Bank of India & Ors.
(supra) thus would not assist the case of the appellant.
82. Insofar as the issue as to whether the carrier and life of the
appellant and the daughter would be seriously affected if the decree
of divorce is not set aside is concerned, insofar as the appellant is
concerned, the appellant is responsible for the decree of divorce
granted by the first appellate Court in view of she having meted out
the respondent with cruelty.
83. Insofar as the daughter of the parties is concerned,
learned counsel for the respondent has voluntarily made a statement
that additional amount of Rs.10,000/- would be paid to the daughter
from such date as this Court may deem fit. The respondent has also
made a statement through his counsel that he is even ready and

willing to take custody of the daughter of the parties. I am thus not
inclined to accept the submission of the learned counsel for the
appellant that the carrier and life of the daughter would be affected in
the facts and circumstances of this case when the respondent is
ready and willing to take custody of the daughter and to maintain her.
84. For the reasons recorded aforesaid, insofar as substantial
question of law no. (I) is concerned, in my view, the first appellate
Court has not granted decree of divorce only on the ground of
irretrievable break down of marriage which is not the ground provided
under the provisions of Hindu Marriage Act, 1955 but mainly on the
ground of cruelty meted out by the appellant upon the respondent.
The said question is answered accordingly. Insofar as substantial
question of law no.(II) is concerned, for the reasons recorded
aforesaid, the said question is answered in affirmative. Insofar as
substantial question of law no.(III) is concerned, for the reasons
recorded aforesaid, the said question is answered in negative.
85. In my view, the second appeal is totally devoid of merits. I,
therefore, pass the following order :-
(a) Respondent no.1 is directed to pay
additional permanent alimony amount of Rupees Ten
Thousand per month from the date of filing this second
appeal to the daughter of the parties Komal. Arrears of
the additional amount shall be paid within six weeks
from today. Additional amount of alimony allowed in
favour of the daughter with effect from January, 2017
shall be paid along with the alimony allowed by the

first appellate Court. The impugned judgment and
decree dated 4th May, 2013 passed by the first
appellate Court is modified partly. Rest of the
judgment and decree dated 4th May, 2013 is upheld.
(b) Second Appeal No.349 of 2013 is
disposed of in aforesaid terms.
(c) In view of the disposal of the Second
Appeal No.349 of 2013, Civil Application No.928 of
2013 does not survive and is accordingly disposed of.
No order as to costs.
 (R.D. DHANUKA, J.)
86. The matter is on board for pronouncement of judgment
today. Before the judgment could be pronounced, Mr.Warunjikar,
learned counsel for the appellant has tendered a copy of the letter
dated 16th December, 2016 and states that his client has instructed
him to make an application before this Court to call for the records
and proceedings of the first appellate Court at this stage and if he is
unable to get that order from this Court, she would engage another
advocate for making such application.
87 I am not inclined to accept this request made at this stage
by the learned counsel for the appellant. The oral application made
by the learned counsel based on the instructions received from his
client is rejected.
 (R.D. DHANUKA, J.)

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