Bombay High Court
Mahadeo Shridhar Gaikwad vs Sau. Vandana W/O Mahadeo Gaikwad on 11 January, 2017
Author: Vasanti A Naik
Bench: Vasanti A Naik, V.M. Deshpande
FCA 192/14 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL No. 192/2014
Mahadeo Shridhar Gaikwad,
Aged : 45 Years Occp.: Service,
R/o Ladis File, Akola,
Tq. & Distt. Akola. APPELLANT
.....VERSUS.....
Sau.Vandana w/o Mahadeo Gaikwad,
Aged: 40 Years, Occp.: Household,
R/o C/o C.V. More, Sati File,
Khamgaon, Tq. Khamgaon,
Distt. Buldana, RESPONDENT
Shri U.J. Deshpande, counsel for the appellant.
Shri M.V. Amale, counsel for the respondent.
CORAM :SMT.VASANTI A NAIK AND
V.M. DESHPANDE, JJ.
DATE :11 TH JANUARY, 2017.
ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)
By this family court appeal, the appellant challenges the judgment of the Family Court, dated 30.12.2011 dismissing the petition filed by the appellant for a decree of divorce on the ground of cruelty, desertion and adultery.
Few facts giving rise to the petition are stated thus :-
The appellant-Husband (hereinafter referred to as 'the husband' for the sake of convenience) and the respondent-Wife ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:51:57 ::: FCA 192/14 2 Judgment (hereinafter referred to as 'the wife') were married at Khamgaon, on 17.05.1990 according to the customs prevailing in their community.
After the marriage, the wife started residing in the matrimonial home. For about ten years, the wife behaved properly with the husband and four issues were born from the wedlock. At the relevant time, when the husband filed a petition for a decree of divorce the son of the parties was aged about sixteen years and the three daughters were aged about fourteen years, twelve years and ten years. It is pleaded in the petition filed by the husband for a decree of divorce that one Gajanan Tapke was residing in the same locality where the husband and the wife resided and there was an illicit relationship between the wife and Gajanan. It is pleaded that the husband noticed that Gajanan was in possession of the photographs of Gajanan and the wife and the husband time and again informed Gajanan and the wife not to maintain the illicit relationship. It is pleaded that when the wife asked Gajanan not to enter into her house in view of the understanding given by the husband, Gajanan entered into the house and beat the wife. The wife had lodged a report about the beating by Gajanan and there were fights between the husband and the wife in this regard. It is stated that the wife left the matrimonial home on 13.03.2004 without any rhyme or reason and failed to join the company of the husband. It is pleaded that the wife filed proceedings against the husband under Section 125 of the Code of Criminal Procedure and monthly maintenance of Rs.500/- was directed by the Judicial Magistrate ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:51:57 ::: FCA 192/14 3 Judgment First Class, to be paid to her. The husband pleaded that he was maintaining all the four children and the wife never joined the company of the husband and children at Khamgaon after she left the matrimonial home on 13.03.2004. The husband, therefore, sought a decree of divorce on the ground of cruelty, desertion and adultery.
The wife filed the written statement and denied the claim of the husband. Every adverse allegation made against the wife was denied by her in her written statement. The wife, however, admitted that four children were born from the wedlock and the children were residing with the husband after she left the matrimonial home. Though the wife denied that she left the matrimonial home on 13.03.2004 along with her brother and mother, the wife admitted in the specific pleadings that she had left the matrimonial home but, she was ready to cohabit with the husband. The wife pleaded in the additional reply-specific pleadings that the husband falsely blamed her in view of her alleged affair with Gajanan. The wife stated that she was ready to reside with the husband if he would not blame her. The wife pleaded that she had filed proceedings for restitution of conjugal rights but, the same were dismissed in default. The wife also stated that the husband had filed proceedings against her for judicial separation on the ground of cruelty by levelling allegations against her in respect of her affair with Gajanan and the said proceedings were dismissed after the Family Court recorded a finding that the ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:51:57 ::: FCA 192/14 4 Judgment husband was not successful in proving that the wife had an illicit relationship with Gajanan. The wife pleaded that in view of the dismissal of the petition for judicial separation, the petition for divorce was also liable to be dismissed.
On the aforesaid pleadings of the parties, the Family Court framed the issues. The husband examined himself and also examined three other witnesses. The wife examined herself and also examined her brother and sister. On an appreciation of the evidence on record, the family court dismissed the petition filed by the husband for a decree of divorce. The Family Court held that the husband was not successful in proving that after the solemnization of the marriage with the husband, the wife had voluntary sexual intercourse with a person other than her husband. The Family Court held that the husband was not successful in proving that the wife had treated him with cruelty. While holding so, the Family Court mainly relied on its earlier judgment by which the petition filed by the husband for a decree of judicial separation was dismissed. The Family Court further held that the husband did not prove that the wife had deserted him for continuously or two years, preceding the date of filing of the petition. The judgment of the Family Court is challenged by the husband in this appeal.
::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:51:57 :::
FCA 192/14 5 Judgment Shri Deshpande, the learned counsel for the husband, submitted that the Family Court was not justified in dismissing the petition filed by the husband for a decree of divorce. It is stated that the photographs placed by the husband on record clearly prove that the wife had posed herself with Gajanan, who was not related to her and had treated the husband with cruelty. It is submitted that merely because the petition for a decree of judicial separation was dismissed after holding that the husband had not been successful in proving the cruelty by the wife, the Family Court ought not have dismissed the present petition by holding that the finding recorded in the previous petition would operate as Res-Judicata. It is submitted that the act on the part of the wife of leaving the matrimonial home without taking any of her four children along with her and failing to return to the matrimonial home for more than ten years clearly shows that the wife was not interested in cohabiting with the husband. It is submitted that the very fact that all the four children are residing with the husband and the husband is taking care of them clearly shows that the case of the husband that the wife had left the matrimonial home because of her affair with Gajanan would stand proved. It is stated that as the husband had not joined Gajanan as a party respondent to the petition for divorce, though a divorce cannot be granted on the ground that the wife had voluntary sexual intercourse with Gajanan during the subsistence of her marriage with the husband, the husband was surely entitled to a decree of divorce on the ground of ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:51:57 ::: FCA 192/14 6 Judgment desertion as admittedly, the wife had deserted the husband for a period of more than two years before the filing of the petition and there was nothing in the written statement filed by the wife to show that there was any just or reasonable excuse for the wife to leave the company of the husband. It is stated that in the absence of any evidence in regard to any ill-treatment by the husband, the Family Court should have granted a decree of divorce, at least on the ground of desertion. It is stated that the Family Court could not have dismissed the petition for divorce on the ground of desertion by referring to the provisions of Section 23 of the Hindu Marriage Act by holding that the husband could not have taken the advantage of his own wrong by not taking any efforts to bring back the wife to the matrimonial home. It is submitted that this Court may, at least pass a decree of divorce on the ground of desertion, if not on the ground that the wife had voluntary sexual intercourse with Gajanan during the subsistence of the marriage with the husband or on the ground of cruelty.
Shri Amale, the learned counsel for the wife, supported the judgment of the Family Court. It is stated that the husband had earlier filed a petition for judicial separation on the ground of cruelty by alleging that the wife had illicit relationship with Gajanan and the petition was dismissed after holding that the husband did not prove the said case. It is submitted that the husband had concealed the fact of filing and dismissal ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:51:57 ::: FCA 192/14 7 Judgment of the earlier petition, in this petition. It is submitted that the Family Court has rightly dismissed the petition filed by the husband on the ground that the wife had voluntary sexual intercourse with Gajanan, as the husband had not joined Gajanan as a party respondent, to the petition. It is submitted that the Family Court had rightly held that the issue whether the wife had treated the husband with cruelty could not have been considered in this petition in view of the bar, based on the principles of Res-Judicata. It is submitted that the husband always suspected the character of the wife and made false allegations against her by referring to Gajanan and, hence, the wife had to leave the matrimonial home. It is, however, fairly admitted that there is nothing in the written statement to point out as to why the wife left the matrimonial home after leaving the four children with the husband. It is further fairly admitted that there is nothing in the written statement to show that the wife was driven out of the matrimonial home by the husband. It is however stated that the Family Court has appreciated the evidence in the right perspective and dismissed the petition. The learned counsel sought for the dismissal of the appeal.
On hearing the learned counsel for the parties and on a perusal of the original record and proceedings, it appears that the following points arise for determination in this family court appeal:- ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:51:57 :::
FCA 192/14 8 Judgment
(I) Whether the husband was successful in proving that the
wife had voluntary sexual intercourse with a person other than the husband?
(II) Whether the husband proved that the wife had treated him with cruelty?
(III) Whether the husband proved that the wife had deserted the husband without any just and reasonable excuse?
(IV) Whether the husband is entitled to a decree of divorce?
(V) What order?
To answer the aforesaid points, it would be necessary to consider the pleadings of the parties and the evidence tendered by them. We have already narrated the pleadings of the parties in the earlier part of the judgment and hence it would not be necessary to re-state the pleadings. The husband had examined himself and reiterated the statements in the petition in his examination-in-chief. The husband was cross-examined on behalf of the wife. The cross-examination is however very short. The husband admitted in his cross-examination that he had filed the petition for judicial separation and the same was dismissed. The husband stated in his cross-examination that he was not ready and willing to cohabit with the wife even if she was ready to reside with him. The ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:51:57 ::: FCA 192/14 9 Judgment husband admitted that the wife had lodged a report against Gajanan Tapke and a criminal case was registered against Gajanan. The husband denied the suggestion that he had made a false allegation against the wife in respect of her illicit relationship with Gajanan. The husband denied that he had not tried to make the wife understand not to maintain the illicit relationship, but she did not listen. The husband denied the suggestion that he had filed a false affidavit to seek a decree of divorce. Apart from the husband, the husband examined his two neighbours to point out that after the husband used to leave the matrimonial home, Gajanan used to enter into the matrimonial house to meet the wife. It is stated by these witnesses in their evidence that though they had asked Gajanan not to meet the wife behind the back of the husband, Gajanan did not mend his ways and on the other hand abused these witnesses. It would not be necessary to delve on the evidence of the witnesses and the evidence of the son of the parties who is examined on behalf of the husband, as the evidence of these witnesses is tendered only with a view to prove the illicit relationship of the wife with Gajanan. Since Gajanan is not joined as a party-respondent to the petition, the Family Court was justified in holding that the husband was not successful in proving that the wife had voluntary sexual intercourse with Gajanan during the subsistence of her marriage with the husband. Hence, though we find from the photographs of Gajanan and the wife that they had more than a friendly relationship, the claim of the husband for a decree of divorce on ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:51:57 ::: FCA 192/14 10 Judgment the ground that the wife had voluntary sexual intercourse with Gajanan cannot be granted. It is conspicuous to note that the husband had not pleaded in the petition filed by him that the wife had voluntary sexual intercourse with Gajanan during the subsistence of their marriage. All that the husband said in the petition was about the illicit relationship or affair between Gajanan and the wife. We, therefore, find that the Family Court was justified in dismissing the petition filed by the husband for a decree of divorce on the ground that the wife had voluntary sexual intercourse with Gajanan during the subsistence of her marriage with the husband. In respect of cruelty also, though we find ample evidence on record to show that there was a relationship between the wife and Gajanan that was not a normal friendly relationship, we are inclined to uphold the finding of the Family Court that the husband was not successful in proving that the wife had treated the husband with cruelty, in view of her affair with Gajanan and in view of the other allegations levelled by the husband against the wife. In the petition filed by the husband for judicial separation, the husband had categorically pleaded about the illicit relationship of the wife with Gajanan and had also pleaded that the wife not taking care of her children and was not behaving properly with him and his mother. Since the Family Court had in the previous petition filed by the husband for a decree of judicial separation recorded a finding on the issue of cruelty, against the husband, we do not find any illegality in the finding recorded by the Family Court ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:51:57 ::: FCA 192/14 11 Judgment in this petition that the finding that there was no cruelty by the wife to the husband would operate as res judicata. Since the husband has not challenged the judgment dismissing his petition for a decree of judicial separation, the findings in the said judgment have attained finality. In the said judgment, the Family Court has held that the husband was not successful in proving that the wife had treated him with cruelty. Hence, it would not be permissible for this court in the second petition filed by the husband against the wife to consider whether the wife treated the husband with cruelty. We, therefore, do not find any fault with the finding of the Family Court that the husband is not entitled to a decree of divorce on the ground of cruelty.
Though the husband is not entitled to a decree of divorce on the ground of cruelty or on the ground that the wife had voluntary sexual intercourse with Gajanan during the subsistence of her marriage with the husband, we are inclined to hold in the circumstances of the case and on the basis of the evidence on record that the husband is entitled to a decree of divorce on the ground of desertion. Admittedly, the wife is residing away from the husband and the matrimonial home since March- April, 2004. Though the wife had filed a petition for restitution of conjugal rights, the said petition was dismissed for want of prosecution. The wife did not take any steps whatsoever, to ensure that the petition was restored and a decree for restitution of conjugal rights was passed in ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:51:57 ::: FCA 192/14 12 Judgment her favour. The wife had diligently prosecuted the petition filed by her for maintenance and had taken it to its logical end thereby resulting in an order directing the husband to pay monthly maintenance to the wife. If the wife was really desirous of cohabiting with the husband, she would have diligently prosecuted the petition filed by her for restitution of conjugal rights also. The wife, however, did not prosecute the petition for restitution of conjugal rights resulting in its dismissal. The wife also did not make any efforts to meet her four children that are admittedly residing with the husband for years together. It is difficult to believe that a mother of four children would not be desirous of meeting her children even if she is not willing to cohabit with the husband. If the wife could file the proceedings for maintenance and if the wife was on the right, the wife could have, as well filed the proceedings for the custody of her children at least a couple of her children, which admittedly she did not do. The parties are residing separately for more than 12 years. The Family Court has observed in the judgment in the previous petition filed by the husband and also in this petition that the marriage between the parties is irretrievably broken down. We find that the husband has categorically pleaded in his petition that the wife has left the matrimonial house on 13.03.2004 without any reasonable excuse. The wife has denied the said fact in her written statement. However, it is not the case of the wife in the written statement that she was driven out of the house by her husband. The wife has also not pleaded in the written statement as to ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:51:57 ::: FCA 192/14 13 Judgment why she was living separately and away from the husband for several years and as to why she had left the matrimonial house. It is not the case of the wife either in her pleadings or in her evidence that her husband treated her so badly that she was compelled to leave her matrimonial home and reside with her parents. The facts narrated herein above, specially the fact that the wife left the matrimonial house without any rhyme or reason (at least no reason is mentioned in her written statement) the fact that the wife did not make any attempt to meet her four children who are residing with her husband for more than a decade, the fact that the wife did not make any efforts whatsoever, to seek their custody or at least access to them, the failure on the part of the wife to prosecute the petition filed by her for restitution of conjugal rights and to take steps for the restoration of the petition that was dismissed in default, clearly show that the wife had left the company of the husband without any just or reasonable excuse. It is apparent that the wife did not make any efforts whatsoever to join the company of her husband. There is an intention to desert the husband in the conduct of the wife. Without considering any of these aspects, the Family Court has simply rejected the prayer made by the husband for a decree of divorce on the ground of desertion by observing that the husband did not make any efforts to bring back the wife to the matrimonial home and hence he cannot be permitted to take advantage of his own wrong though admittedly the parties are residing separately for several years. The Family Court failed to consider ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:51:57 ::: FCA 192/14 14 Judgment that there was nothing in the written statement of the wife to show that she was compelled to leave the matrimonial home or there was any just or reasonable excuse for the wife to leave the company of her husband and her four children. It is not the case of the wife that at any point of time after she left the matrimonial home in March-April, 2004, she made any attempts to enter into the matrimonial home, but she was not permitted by the husband or the children to do so. In fact, the evidence of the son of the parties clearly shows that the wife did not bother about her children and did not make any efforts to even meet them. These material aspects of the matter were not considered by the Family Court and the Family Court has wrongly answered the issue pertaining to desertion by the wife mainly by referring to the provisions of section 23 of the Hindu Marriage Act, which in our view would not apply to the circumstances of the case. In the circumstances of the case and on the basis of the evidence on record, the Family Court ought to have granted a decree for divorce on the ground of desertion, as the husband is successful in proving that the wife had deserted the husband without any just or reasonable excuse. The wife had deserted the husband for a continuous period of more than two years before the filing of the petition for divorce.
Hence, for the reasons aforesaid, the family court appeal is partly allowed. The judgment of the Family Court stands modified. The ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:51:57 ::: FCA 192/14 15 Judgment part of the judgment that dismisses the petition for a decree of divorce on the ground that the wife had voluntary sexual intercourse with Gajanan during the subsistence of her marriage with the husband and treated him with cruelty is hereby confirmed. The part of the judgment of the Family Court that dismisses the petition for a decree of divorce on the ground of desertion is set aside. The petition filed by the husband for a decree of divorce is partly allowed. The marriage solemnized between the parties on 17.05.1990 stands dissolved by a decree of divorce on the ground of desertion under section 13(1)(i-b) of the Hindu Marriage Act. In the circumstances of the case, there would be no order as to costs.
JUDGE JUDGE
APTE/KHUNTE
::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:51:57 :::