Friday 23 March 2012

Whether demand Of Separate residence by wife amounts to cruelty?

 The petitioner in her evidence, except giving slap and not
giving food did not narrate any specific incident of physical cruelty
against the respondent. It is oral uncorroborated evidence.  In fact she
gave admission and showed readiness to stay  with the respondent
and his mother. She did not like the company  of his sisters. House of
the respondent is of 12 rooms. Thus, separate residence for the
appellant and respondent could be possible,  if the respondent had
accepted the offer. At any rate, as the  demand of separate residence
cannot be considered as cause of cruelty,  for the same reason, nonacceptance of such demand by the husband also cannot be a cruelty.
These are choices given by the spouses to each other and expression
of choice and refusal of the choice itself is not a cruelty. 


Mrs.Surbinder Kaur Sandeep Sood, Vs. Sandeep Rajkumar Sood,

Coram- A.M.Khanwilkar and
   Mrs.Mridula Bhatkar,JJ

Pronounced On- 8 December, 2011.
 (Per Mrs.Mridula Bhatkar,J.):

1 The judgment and order dated 23/6/2003 passed by the
Judge of Family Court, Pune is challenged in this appeal. The
appellant/original petitioner had filed petition for divorce on the ground
of cruelty and desertion under section 13(1)(ia)(ib) of the Hindu
Marriage Act, 1955.
2 The appellant and the respondent got married on
12/5/1993 and stayed together for a period of three years at Kolhapur,FCA 77/2003

in the joint family of respondent consisting of parents and three sisters.
It is the case of the appellant that she was not given freedom in the
house and  was harassed in  number of ways by the mother and
sisters of the respondent. She was not allowed to speak to the
respondent and was  asked to do domestic work from morning to night.
Many restrictions were imposed on her routine and she hardly could
step out of the house. She was deprived of company of the respondent
and had to obey the instructions/orders of her mother in law and sisters
in law. For want of proper care and rest she had miscarriage. So her
parents came to Kolhapur and gave her Rs.5,000/-for her own
expenses. However, she was not allowed to spend that money for
herself. Subsequently she again conceived and gave birth to male
twins on 24/4/1996. She was not allowed to take proper rest and
sisters of the respondent used to quarrel with her so the children were
neglected. It is contended that in July, 1996 she was not allowed to go
to the temple of goddess at Kolhapur. On that issue there was a big
quarrel in the house. The respondent slapped the appellant, thereafter
her sister in law Anju lodged false complaint with the police  that the
appellant tried to commit suicide. On enquiry police called her father
and she was sent to Pune alongwith her father.  She resided with her
parents for 2-3 months. The respondent was supposed to come to her
father’s house to take her back. However, he did not come. Therefore,
in the month of January,1997 the appellant alongwith her father went to
Kolhapur  to reside with the respondent. However, the respondent and
his family members quarreled with the appellant and she alongwith her
family members was driven out of the house  at odd hours of night.
Since then she has been residing with her parents at Pune.It is
contended that the respondent did not pay any maintenance to her and
her children and did not bother to call her back. She, therefore, on the
ground of cruelty and desertion filed petition for divorce in the Family
Court at Pune, but it  was dismissed. Hence this appeal.
3 The respondent has denied all the contentions raised and
allegations made in the petition and in the appeal.  He filed written
statement and contested the petition that the grounds of cruelty and
desertion are false and it is a cooked up story.   The petition was based
on false averments and petitioner had withdrawn herself from the
company of the respondent without any good cause. She has taken
away two children and was not interested from the beginning to live
with the respondent alongwith his family members. It is contended by
the respondent that the petitioner wanted to reside separately only with
the respondent and was interested to enjoy the life without taking any
responsibility. She is pampered child of her parents. Despite such
behaviour of the appellant, the respondent being a responsible and
loving husband filed petition for conjugal rights bearing no.95/97 and it
was decided in his favour. The petitioner did not come to stay with him.
He filed execution proceedings, however, the petitioner did not show
any interest and did not come to Kolhapur to live with him. It is
contended that the petition was rightly dismissed as the petitioner
could not prove her case of either cruelty or desertion.
4 The petitioner examined herself and also three witnesses
viz. Nandlal Amarchand Shrishrimal, Sharadsingh Banga, and Captain
Deepchandra. The respondent  husband offered himself as a witness
and examined Shivaji Sankpal, Vijaya Toraskar and his sister Anju
Rajkumar Sood.
5 Learned counsel for the appellant argued that cruelty is an
aggravated form of harassment and it can be either expressly  proved
or it can be inferred. She submitted that the appellant in her
examination in chief has stated that the respondent husband had
slapped her and the family members, especially the sisters of the
respondent used to torture her by not giving food and not allowing herFCA 77/2003
to go out of the house. Learned counsel pointed out that the
application for the Restitution of Conjugal Rights though was decreed
in favour of the respondent, the appellant never stayed with the
respondent, therefore,  if the decree is not implemented till today then
itself forms a ground for divorce.  She submitted that the maintenance
ordered by the Court to her was  not paid by the respondent.  These
aspects ought to have been considered by the Family Court. In support
of her submissions she relied upon (Sanghmitra Ghosh
Vs.Kalalkumar Ghosh) reported in 2007(2) SCC,220. She submitted
that this being a irretrievable breakdown of the marriage the prayer of
divorce be granted and the appeal deserves to be allowed.
6 Learned counsel for the respondent submitted that the
appellant at the time of evidence could not narrate specific instances of
cruelty and failed to bring any evidence to that effect. He pointed out
that in her cross examination the petitioner has admitted that she has
no grievance against the respondent but she was on inimical  terms
and holding grudge against the mother and sisters of the respondent
and this cannot be a ground for divorce. Hence the petition is rightly
dismissed. FCA 77/2003
7 The points framed by the Family Court and findings given are as
1. Whether the petitioner proves that
the respondent treated her with cruelty after
solemnization of marriage ? No
2. Whether the petitioner proves that the No
respondent deserted her without
just and sufficient reason for a period
of 2 years preceding the date of
petition ?
3. Is there any legal bar u/s 23 of  Not survive
H.M.Act ?
4. Is petitioner entitled to decree of divorce? No
5. What about permanent alimony of Not survive
petitioner and maintenance of children ?
6.   Is petitioner entitled to continue the Yes,presently.
permanent custody of children with her ?
7. What order ?     As per final order
8 Issue nos.1 and 2 are  the ground for divorce i.e. cruelty
and desertion. We have carefully gone through the evidence and
judgment of the Trial Court. On the point of mental and physical cruelty,
following incidents are stated by the appellant. FCA 77/2003
Physical Cruelty-
1. Slapping the petitioner in the month of July,
1996  when the appellant expressed her desire to
go to the temple.
2. She was driven out of the house at night in July,
1997 alongwith her father.
3. Not giving food
4. Asking her to do the domestic work
Mental Cruelty-
1. Not allowing to talk to her husband.
2. Not allowing to go out
3. Husband was not accepting her wish of separate residence
and not to stay with sisters.
4. Not to give her Rs.5,000/- to spend.
9 The petitioner in her evidence, except giving slap and not
giving food did not narrate any specific incident of physical cruelty
against the respondent. It is oral uncorroborated evidence.  In fact she
gave admission and showed readiness to stay  with the respondent
and his mother. She did not like the company  of his sisters. House of
the respondent is of 12 rooms. Thus, separate residence for the
appellant and respondent could be possible,  if the respondent had
accepted the offer. At any rate, as the  demand of separate residence
cannot be considered as cause of cruelty,  for the same reason, nonacceptance of such demand by the husband also cannot be a cruelty.
These are choices given by the spouses to each other and expression
of choice and refusal of the choice itself is not a cruelty.   In the
evidence of Anju, sister of the respondent, she has stated that she
leaves home at 9 a.m. and returns at 6 p.m. Further, the appellant
gave admission in her evidence that the mother of the respondent has
taken her care during pregnancy. This shows that the appellant did not
have any complaint against the mother of the respondent. It appears
that the root cause of the dispute was due to stay of the sisters in the
house,  an ego problem.
10 On the point of cruelty one Captain Deepchandra was
examined by the appellant. He is maternal uncle of the respondent. He
has produced one letter, Exh.25, written by the father of the
respondent to him. He deposed that in that letter father of the
respondent has written that , “ Surbinder was kicked out to Pune”. On
reading the said letter the words “kicked out” appear to be added
subsequently. However, further it is mentioned in the letter that the
family was spending Rs.30,000/- per year on the appellant. Thus, her
evidence that she was not given food, cannot be believed on the basis
of the letter which is proved and relied by the appellant herself.  FCA 77/2003
11  On 25/7/1996 a police complaint  was lodged by the
sister of the respondent alleging that the appellant was trying to
commit suicide by pouring kerosene on her body. This shows that the
sister had diligently  reported the police station so that the police would
take preventive measures and no untoward incident should happen.
However, the attempt of the appellant to commit suicide when she was
mother of 2-3 months old infants cannot be justified.  The evidence of
police officer is on record which supports this and that cannot be
doubted.  After going through this evidence we are of the opinion that
the Judge of the  Family Court has properly appreciated the evidence
of the witnesses of both the sides and has correctly arrived at the
conclusion. It is settled position of law that a routine bickerrings  or
petty quarrels cannot be labelled as cruelty under the Hindu Marriage
12 The respondent though denied that amount of Rs.5000/-
was received from the father of the appellant, he admitted that he  kept
that amount in the Fix Deposit in the name of the appellant and he did
not spend that money for himself. Further, the record shows that he
had filed application for Restitution of Conjugal Rights which was
decreed as the appellant failed to prove that she had withdrawn from
the society of the husband with good and satisfactory cause.  Even in
those proceedings the appellant had asserted cruelly caused by the
respondent and his family members. However, that plea was
negatived.  The said decree was not challenged by the appellant in
appeal. Though the execution was taken out, she did not respond and
the decree could not be executed.
13 It is admitted that on that day i.e. 25/7/1996 father of the
appellant was called by the police. With a view to get the things settled
she was sent to Pune at her father’s residence for 2-3 months. After
two months the respondent did not bring back the appellant, so her
father came to Kolhapur. The respondent told him to bring back the
appellant to Kolhapur. On 25/1/1997 she came alongwith her father
and some family members, out of which one is examined as a witness.
There are two versions of the parties before the Family Court  that she
was driven out of the house and secondly the father and other member
who had gone there,  fought and put stringent condition which were not
acceptable to the respondent, therefore, they took their daughter back
to Pune. Be that as it may, the fact remains that  the appellant did not
go back and continued to stay away from the respondent from July,
1996. Any version of either of the parties if accepted, it is not a good
ground to stay away from each other and to untie a nuptial knot. 
14 Considering the nature of the dispute and the reasons given by
the appellant, the separation cannot be justified.  It cannot be held that
the respondent has deserted the appellant without any good cause. It
appears that the appellant herself opted to stay with her parents at
Pune and not to cohabit with the respondent. She did not respond to
the decree of Restitution of Conjugal Rights and therefore, the findings
given by the Family Court that animus deserendi was absent and so
the divorce cannot be granted under the ground of desertion is correct.
Minor disputes, difference of opinion which are to be adjusted and
tolerated, cannot be treated as cruelty.
15 The respondent had filed petition for custody of children.
However, it was rejected. He could not succeed in the appeal. The
twins were born  in 1996 and now they are around 15 years old. Since
childhood they are staying with mother and taking education. So the
issue of permanent custody was rightly held in favour of the appellant.
Indeed, after attaining majority, it would be open to the children to stay
with parent of their choice i.e., continue to stay with the mother or
reside with the father (respondent). 
16 A demand of permanent alimony was made by the appellant.
Our attention was drawn to the orders passed by the Trial Court and
this Court in the maintenance petition filed by the appellant. The
appellant had filed a petition for maintenance bearing number 218/97
and maintenance of Rs.400/- p.m. to the appellant and Rs.300/- p.m.
to each child was granted. It was enhanced to Rs.800/- p.m. for the
appellant and Rs.500/- p.m. to each child. The respondent filed an
application for cancellation of maintenance, however, it was dismissed.
Again the maintenance amount was enhanced by the Family Court to
Rs.1,200/-p.m. to the appellant and Rs.1,000/-p.m. to each child. The
respondent preferred Revision Applications before this Court bearing
nos.654/2007 and 512/2008. The Revision Applications were
dismissed by this Court on 18/7/2009. The respondent preferred
Special Leave to Appeal (Criminal) 7870-7871/2009 and the same was
dismissed by the Supreme Court. We do not wish to interfere with
finding recorded by the Family Court on issue No.5. We also agree
with the Family Court that the appellant is free to resort to other legal
17 It is necessary to note that when the appeal was taken up
for hearing, we, in the first place, tried to persuade the parties to arrive
at some amicable settlement.  However, we found that the parties were
still holding grudge against each other and were not in a mood to
adjust. Instead, the learned counsel for the appellant has advanced her
submission that such a long separation amounts to irretrievable break
down of the marriage and so the decree of divorce be granted. In the
case of  Sanghmitra Ghosh (supra) the parties were residing
separately since January, 2001. In a transfer petition before the
Supreme Court to transfer the pending matrimonial petition to some
other State;  they filed joint petition for a decree of divorce praying that
the Court may grant decree of divorce by mutual consent. The
Supreme Court accepted the plea of irretrievable break down of
marriage and exercised its extraordinary jurisdiction under Article 142
of the Constitution and granted decree of divorce. In the present
matter, having recorded finding on merits on the relevant points/issues
raised by the rival side and thus upheld the decree passed by the
Family Court which is impugned in this Appeal, we would follow the
dictum of our High Court in the case of Ravindra M.Shelar v. Kalpana
R.Shelar reported in 2002 (3) MLJ 746. The same applies on all fours
to the facts of the present case. Inasmuch as, even in this case we
have found that the appellant was responsible for non-compliance of
decree of restitution of conjugal rights and had committed positive
wrong. She cannot be allowed to take advantage of her own wrong as
the legal bar in granting the decree of divorce was not lifted. 
18 We, therefore, do not wish to interfere with the judgment
and order passed by the Family Court.
19. Hence the Appeal is dismissed with no order as to costs.
(Mrs.Mridula Bhatkar,J.) (A.M.Khanwilkar,J.)
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