Wednesday, 17 February 2021

Whether the court should grant a divorce to the husband if the wife is having the habit of chewing tobacco?

 It is the specific allegations of appellant/husband that

since the respondent/wife was having a habit of chewing tobacco,

he was required to spend lot of money for her medical treatment.

However, the learned trial Court has rightly observed that he failed to bring on record the medical papers and bills in support of this pleading.

16. The Division Bench of this Court in the case of Sanjana

Sandip Pednekar Vrs. Sandip Sitaram Pednekar reported in

2014(3) Mh.L.J 781, with regard to cruelty, has observed that the

married life should be assessed as a whole and a few isolated

instances over certain period will not amount to cruelty. It is further

observed that the ill-conduct must be preceded for a fairly lengthy

period where the relationship has deteriorated to an extent that

because of the acts and behaviour of a spouse, one party finds it

extremely difficult to live with the other party no longer may

amount to mental cruelty and mere trivial irritations, quarrels,

normal wear and tear of married life which happens in day to day

life in all families would not be adequate for grant of divorce on the

ground of cruelty.


17. Apart from this, it is rightly held by the learned trial

Court that the pleadings of the appellant/husband are not so grave

and weighty so as to dissolve the marriage. The learned trial Court

has rightly observed that the parties have two children, and if the

marriage is dissolved, the children would suffer a great loss, and

their welfare will affect, and in the best interest of daughter

Bhumika and son Akash, the marital tie shall remain intact.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

FAMILY COURT APPEAL NO. 70 OF 2016


Shri Shankar  Haridasji Gajbhiye Vs Sau. Rina W/o Shankar Gajbhiye,


CORAM : A.S.CHANDURKAR &

PUSHPA V. GANEDIWALA, JJ.

DATE : 10th FEBRUARY, 2021.

JUDGMENT (Per : Pushpa V. Ganediwala, J.)

The challenge in this appeal is to the judgment and decree

dated 21/01/2015 passed by the Judge, Family Court No.2, Nagpur in

H.M.P. No. A-215/2012, whereby the petition of the husband, for decree

of divorce on the ground of cruelty under Section 13(1)(i-a) of the Hindu

Marriage Act, 1955, came to be dismissed.


2. The marriage between the appellant/husband and the

respondent/wife was solemnised on 15/06/2003 at Nagpur as per the

Buddhist rites and rituals. Out of the said wedlock, the couple is blessed

with one son and one daughter. The daughter is in the custody of

appellant/husband, while the son is with the respondent/wife. The

appellant/husband sought divorce on the ground of cruelty. The facts

with regard to cruelty, as pleaded in his petition, are as under :

i. Respondent/wife was not doing any household work properly.

She used to quarrel with the appellant/husband and his family

members without any reason.

ii. She used to visit her parental home without his permission, and

used to stay there for 15-30 days.

iii. She was addicted to chewing tobacco and therefore she had

developed a cyst in her stomach. The appellant husband had to

incur huge medical expenses for her treatment.

iv. She was insisting for separate residence from the family of the

appellant/husband, and therefore, a house was purchased at

Dighori, Nagpur. Despite this, the respondent/wife could not

change her behavior and she continued to visit her parental

house.

v. She used to do household work in midnight. She was not

preparing tiffin box at proper time.

vi. Lastly, on 17/01/2012, she left the company of the

appellant/husband, as she was not interested to cohabit with

him.


3. Appellant/husband further states that in order to

resume the cohabitation, on 13.02.2012, he issued a legal notice to

the respondent/wife. However, she neither replied the said notice,

nor showed her inclination to resume cohabitation, and hence he

was constrained to file a divorce petition on the ground of cruelty.

4. The respondent/wife, in her written statement, denied

all the adverse allegations of cruelty pleaded by the

appellant/husband. In her specific pleading, the respondent/wife

pleaded about some instances of mental and physical harassment

meted out to her at the hands of the appellant/husband and her

mother-in-law. She stated that her mother-in-law was quarreling

with her, and was doubting her character. She also made

allegations with regard to demand of two wheeler from her parents

by the appellant/husband, and on that count, he gave beating to

her. She also pleaded one incident of police complaint by her, and

the settlement between the parties before the Mahila Cell at

Panchpaoli Police Station, and that the appellant/husband had

given assurance of good treatment to her.

5. The respondent/wife further alleged that in the year

2008, even though the appellant/husband was suffering from the

disease H.I.V., she did not leave his company. However, as she was


receiving continuous ill-treatment at the hands of her in-laws, she

was constrained to leave the company of the appellant/husband.

6. The learned trial Court framed necessary issues and

recorded oral and documentary evidence as adduced by the parties.

The appellant/husband examined himself and two more witnesses

i.e his mother and brother, while respondent/wife examined herself

only.

7. After hearing both the parties, the learned trial Court

dismissed the petition for divorce, as in the opinion of the trial

Court, the appellant/husband could not prove the cruelty at the

hands of the respondent/wife as contemplated in law. This

judgment is impugned in this appeal.

8. We have heard Shri D.R.Khandare, learned counsel for

the appellant/husband, and Shri N.M.Kolhe, learned counsel for

the respondent-wife.

9. Shri Khandare, learned counsel for the appellant/husband,

submitted that the learned Family Court has not considered the

pleadings and the evidence on record, in its correct perspective.

According to him, the Family Court has failed to consider the illtreatment

subjected to him by the respondent/wife, and the false

allegations against the appellant/husband and his family members


amounts to mental cruelty. He further submitted that the learned

Family Court has ignored the bad habits of the respondent/wife,

and also not considered that she was not doing household work

properly, and used to quarrel with the appellant/husband and his

family members. Lastly, he urged to allow the appeal in the interest

of justice.

10. Per contra, Shri Kolhe, learned counsel for the

respondent/wife, supported the judgment and decree of the trial

Court, and submitted that the learned trial Court, while dismissing

the petition, has properly appreciated the evidence on record and

that the appellant/husband could not make out a case to interfere

with the well reasoned judgment of the Court below.

11. We have considered the submissions put forth on either

sides and perused the record.

12. The following point arose for consideration of this Court:

“Is the appellant/husband is entitled for grant of

decree of divorce on the ground of cruelty ?”.

13. At the outset, the appellant husband has sought divorce

on the ground of mental cruelty. Before adverting to examine the

evidence on record to assess as to whether the appellant husband

could make out a case of mental cruelty, it would be advantageous


to refer to one of the landmark judgments of the Hon’ble Apex

Court in the case of Samar Ghosh vs. Jaya Ghosh reported in

(2007) 4 SCC 511 wherein their Lordships have enumerated some

instances of mental cruelty. The relevant portion in para no. 101 in

the said judgment is reproduced below:

"101. No uniform standard can ever be laid down for guidance,

yet we deem it appropriate to enumerate some instances of

human behavior which may be relevant in dealing with the cases

of "mental cruelty". The instances indicated in the succeeding

paragraphs are only illustrative and not exhaustive:

(i) 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.

(ii) On comprehensive appraisal of the entire

matrimonial life of the parties, it becomes abundantly

clear that situation is such that the wronged party cannot

reasonably be asked to put up with such conduct and

continue to live with other party.

(iv) Mental cruelty is a state of mind. The feeling of deep

anguish, disappointment, frustration in one spouse

caused by the conduct of other for a long time may lead

to mental cruelty.

(v) A sustained course of abusive and humiliating

treatment calculated to torture, discommode or render

miserable life of the spouse.

(ix) 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.

(x) 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 ill conduct 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.


14. A careful perusal of the pleadings and the evidence in

support as adduced by the appellant/husband, would at once

reveal that the allegations with regard to cruelty as set out by the

appellant/husband, are nothing but the normal wear and tear in

married life. The couple lived together for around 9 years and the

appellant husband could not bring on record specific instances of

mental harassment to enable this Court to adjudicate the case of

mental cruelty in favour of the appellant/husband. The allegations

that she was not doing household work, quarreling with his family

members without any reason, visiting her parental home without

his permission, not preparing his tiffin etc., in the considered view

of this Court, are not sufficient to form any opinion that the

appellant/husband is undergoing acute mental pain, agony,

suffering, disappointment and frustration and therefore it is not

possible for him to live in the company of the respondent/wife. All

the allegations levelled by the appellant/husband are general and

omnibus in nature. The major allegation amongst them is with

regard to her habit of chewing tobacco/kharra, which alone is not

sufficient to grant a decree of divorce. On the contrary, the

appellant/husband has admitted that in the year 2008, he was

detected with HIV positive, and the respondent/wife stayed with

the appellant/husband till 2010. The instances of physical and


mental harassment, as pleaded and proved by the respondent/wife,

is on the better footing than the appellant/husband.

15. It is the specific allegations of appellant/husband that

since the respondent/wife was having a habit of chewing tobacco,

he was required to spend lot of money for her medical treatment.

However, the learned trial Court has rightly observed that he failed

to bring on record the medical papers and bills in support of this

pleading.

16. The Division Bench of this Court in the case of Sanjana

Sandip Pednekar Vrs. Sandip Sitaram Pednekar reported in

2014(3) Mh.L.J 781, with regard to cruelty, has observed that the

married life should be assessed as a whole and a few isolated

instances over certain period will not amount to cruelty. It is further

observed that the ill-conduct must be preceded for a fairly lengthy

period where the relationship has deteriorated to an extent that

because of the acts and behaviour of a spouse, one party finds it

extremely difficult to live with the other party no longer may

amount to mental cruelty and mere trivial irritations, quarrels,

normal wear and tear of married life which happens in day to day

life in all families would not be adequate for grant of divorce on the

ground of cruelty.


17. Apart from this, it is rightly held by the learned trial

Court that the pleadings of the appellant/husband are not so grave

and weighty so as to dissolve the marriage. The learned trial Court

has rightly observed that the parties have two children, and if the

marriage is dissolved, the children would suffer a great loss, and

their welfare will affect, and in the best interest of daughter

Bhumika and son Akash, the marital tie shall remain intact.

18. In the given facts, we are of the opinion that no case is

made out by the appellant/husband to disturb the well reasoned

findings of the learned trial Court. The appeal thus being devoid of

merits deserves to be dismissed and is accordingly dismissed. The

parties to bear their own costs.


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