Gujarat High Court
Gitaben W/O Bharatkumar A Raval & D/O ... vs Bharatkumar Ambalal Raval on 15 July, 2015
Bench: Ks Jhaveri, G.B.Shah
C/FA/4870/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 4870 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment?
2 To be referred to the Reporter or not? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the constitution of India,
1950 or any order made thereunder?
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GITABEN W/O BHARATKUMAR A RAVAL & D/O BABULAL SOMNAHT
RAVAL....Appellant(s)
Versus
BHARATKUMAR AMBALAL RAVAL....Defendant(s)
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Appearance:
MR NIRZAR S DESAI, ADVOCATE for the Appellant(s) No. 1
MR ARVIND A GOUR, ADVOCATE for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
Page 1 of 13
C/FA/4870/2010 JUDGMENT
Date : 15/07/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. By way of this appeal, the appellant has challenged the judgment and order dated 25/10/2010 passed by the learned Judge, Family Court No. 4, Ahmedabad in Family Suit No. 792 of 2005 filed by the respondent herein - original petitioner - husband for divorce, whereby, the learned trial Judge allowed the said suit and granted the decree of divorce. For convenience, the appellant and the respondent are, herein after, referred as the wife and the husband respectively.
2. Brief facts of the case are that marriage of the parties were solemnized as per the Hindu rites and rituals on 30/05/1991. The parties were residing at Sardarpura, Tal.: Kheralu, Dist.:
Mahesana, which was the place of service of the husband. Out of the said wedlock, they have two children. It was the case of the husband before the trial Court that for initial 10 years, the wife's behaviour was good but thereafter, she started quarrelling on the count of her wish to do a job to which, the husband was refusing.
She did not do household works and also did not look after the Page 2 of 13 C/FA/4870/2010 JUDGMENT children and quarelling with them also. The husband tried to persuade her but all in vein and there appeared no change in her.
On the contrary, she used to threaten the husband that she would leave her besides filing of criminal complaints and suit against the husband and his parents. She also used to threaten the husband that she would commit suicide. She also tried to beat the husband. On husband's transfer to Ahmedabad in the year 1999, they shifted to Ahmedabad with family but then, the wife refused to keep the parents of the husband with them. The behaviour of the wife had become aggressive and she also threatened to kill the husband. She also tried to commit suicide twice. It was the case of the husband that, they had to go to attend the marriage in his inlaw's family at Ranasan on 05/05/2001 but for the husband was not able to avail leave, he sent the wife and two children. Subsequently, he went to Ranasan where, the brother of the wife came with two children and handed over custody to husband saying to keep them with him and the wife left with her brother at Mumbai. Thereafter, the husband tried to convince her to return many a times, but she did not convinced. Thereafter, she joined service as a teacher at Dist.: Jamnagar and residing alone and thus, as per the husband, the wife deserted him from May 2001 on her own Page 3 of 13 C/FA/4870/2010 JUDGMENT volition without any substantial reasons. Accordingly, the husband constrained to file the divorce petition, which came to be allowed and hence, against the said order, the present appeal by the wife before this Court.
3. We have heard Mr. Desai, learned advocate appearing for the appellant - wife and Mr. Gour, learned advocate appearing for the respondent - husband.
3.1 The learned advocate appearing for the appellant wife submitted that one of the the reasons accorded by the learned trial Judge while allowing the divorce petition was that the appellant wife was adamant enough to stick to her will to go for a job and to fulfill her desire of doing a job, she sacrificed her family life, which is erroneous. He submitted that, in fact, the appellant - wife had to go for a job in view of their prevailing circumstances. He further submitted that the learned trial Judge has committed error in holding that no husband can rely upon a wife who files complain against the husband under Section 498A of the Indian Penal Code. He submitted that the learned trial Judge ought to have appreciated the fact that no wife files a complain unless the circumstances so compel. Moreover, he Page 4 of 13 C/FA/4870/2010 JUDGMENT submitted that the learned trial Judge has also erred in holding that it is a clear desertion on the part of the present appellant - wife. He submitted that, the said observation is contrary to the facts and the evidence on record. Making above submissions, he submitted that the present appeal may be allowed.
4. Whereas, Mr. Gour, the learned advocate appearing for the respondent - husband, submitted that the decree passed by the trial Court being just and proper and after due appreciation of the evidence on record and taking into consideration the facts and circumstances of the case on hand, no interference is called for at the hands of this Court and the present appeal, deserves to be dismissed.
5. We have heard the learned advocates appearing for the parties and also perused the impugned judgment and order so also, gone through the documents on record. It is undisputed that the present appellant - wife has filed complaint under Section 498A, 506(2) and 114 of the Indian Penal Code and Section 3 and 7 of the Dowry Prohibition Act. Moreover, taking into consideration the evidence on record, more particularly, evidence of Narayanbhai Babulal Raval at exh. 62, the trial Court has Page 5 of 13 C/FA/4870/2010 JUDGMENT appreciated the evidence and has granted the decree in favour of the husband. Further, both the parties are residing separately since 2001 and the wife is also earning well. Following observations made by the trial Court in para 28, 29 and 30 of the impugned judgment and order, which are relevant and hence, extracted hereunder:
"28. The respondentwife has given her written arguments at Exh.76 wherein it is argued out that the petitioner is stating contradictory statements. Once he is stating that because the respondent wanted to do job as teacher and he had objected to it and in cross examination, he says that when in the year 2001, when the respondent became teacher, he has no objection for it. Once, he is stating that he has tried to bring the respondent back at home and for which he and his parents have tried for it and when the respondent has stated that she is ready and willing to come to reside with the petitioner, he has denied to accept her in his house. No one has seen that the respondent is beating children but only the children were complaining for it. The petitioner's family members also admitted that the respondent was not severely beating children. The petitioner's mother admits that her daughterinlaw has never quarreled with her. She has never seen that she is beating the Page 6 of 13 C/FA/4870/2010 JUDGMENT children. She has also stated that on one has objection for respondent is serving. Children who are examined at Exh.57 and 58, they also admit that they were not been hospitalized due to respondent's beating and never fracture has occurred. For better future of the children, mother was beating and for that children's grandmother has not objected. The respondent who has examined her brother Narayanbhai, his friend Prakashbhai and Pragnaben Kantilal who was sister inlaw of the petitioner and has taken divorce from his brother, all of them have supported her say that petitioner's family members are very much rigid and orthodox. She has requested to reject the petition of the petitioner.
29. This is the case of the petitioner that the respondent is born and brought up at Mumbai and has studied up to P.T.C. (D.Ed.) and after their marriage, she was insisting to allow her to do job as a teacher. Till their two children were born, the marriage life of the parties was going smoothly but when the petitioner was transferred to Ahmedabad when his mother and father were residing. The petitioner and the respondent along with their two children also started residing with them in joint family. The respondent, who is independent in nature, disliked residing in joint family and so she was insisting the petitioner to reside separately from his Page 7 of 13 C/FA/4870/2010 JUDGMENT parents and also insisting to allow her to do job as a teacher. For the said reason, she has deserted the petitioner and has also left her two minor children at petitioner's house and she went to Mumbai along with her brother and subsequently she has accepted job as a teacher at Kalavad, Dist. Jamnagar, where at present according to her, she is residing alone and doing job. It is the defense of the respondent that up to 10 years, their marriage life ran smoothly. Two children were also born out of their wedlock. After that due to instigation of petitioner's parents and brothers, she was harassed mentally and physically and they were also demanding dowry but she was not able to comply with their demand and hence she was driven away from the matrimonial home by taking all her ornaments and other gifts which was given by her parents. She has also filed a petition for restitution of conjugal rights at Vijapur on 26/10/2005 and has also lodged complaint under Section 498 (A), 506 (2), 114 of the Indian Penal Code and under Section 3 and 7 of the Dowry Prohibition Act. Hence, in my view, when the petitioner has filed this petition for divorce, the respondent has before filing reply in this petition, she had filed petition under Section 9 of the Act for restitution of conjugal rights and other criminal complaints, police complaints subsequently after filing of this divorce petition as a counter blast. The respondent has also filed one application in this Page 8 of 13 C/FA/4870/2010 JUDGMENT petition during the pendency of petition seeking custody of the children and after hearing both the parties and after taking evidence i.e. ascertaining wish of the children, my predecessor Judge has come to the conclusion that because children were not willing to go with her mother, children's custody cannot be given to the respondentwife and her said application was ordered to be rejected. It is not disputed fact that the respondent who is born and brought up at Mumbai and it is also the fact that she is studied up to PTC (D.Ed.). The respondent has denied that she was insisting to do job as a teacher. It is the case of the petitioner that after they have started residing in Ahmedabad in joint family, the respondent started harassing him, his parents and their children. Both the children were also examined by the respondent as witnesses before this Court. The elder son Viraj has stated on oath that his mother was beating him and that he is very close to his grandparents and that he does not wish that his mother comes back to reside with them. The younger son has also shown his unwillingness that his mother would come back. So both the children have time and again shown their unwillingness to reside with their mother. So there must be some reason otherwise no child would give deposition against his mother and shown unwillingness to reside with her. They have shown their unwillingness twice before this Court. So if once Page 9 of 13 C/FA/4870/2010 JUDGMENT upon a time for the sake of argument, we do not believe the say of the petitioner and his parents against the respondentwife that she is the guilty person but the contentions and desire of the children compel this Court to believe the version of the petitioner. There must be substance in the say of the petitioner that the respondent treated not only him but also the children and his parents with cruelty and she has also deserted them without any reasonable excuse. It is also the fact that the respondent has started doing job as a teacher since the year 2001 and residing independently. So from the said fact, it emerges that the respondent's nature is independent and she likes to live as per her own wish. So the petitioner is able to prove that the respondent disliked residing in joint family and it is also proved that the respondent intended to do job as a teacher and for the said purpose, she was quarreling with the parents of the petitioner and was also beating to her children and that might be the reason that her own children also do not wish to reside with her. So, petitioner's cited authority does support his case that as the respondent attitude was of nagging and totally negligent to the children and it is not less than cruelty for a man. It is also true that till 10 years, their marriage run smoothly and no dowry was demanded by the petitioner but because the respondent wants to fulfill her wishes to reside separate and to do job, she has Page 10 of 13 C/FA/4870/2010 JUDGMENT made such type of baseless allegations which she failed to prove the same with cogent evidence and she has also deserted the petitioner and two children also.
30. The exdaughterinlaw i.e. the exwives of the petitioner's brothers, who have obtained divorce in the year 1998 and 1999 respectively, deposed on oath that the respondent was nursing (;[JF SZJL) their in laws and discharging her matrimonial obligations peacefully and she did not beat her children also. These statements of the said witnesses cannot be believed as they have already taken divorce prior to the respondent coming and residing at Ahmedabad in joint family. They did not reside jointly perhaps they resided together occasionally and for that they did not have experience of the real nature, and conduct of the respondent and hence their deposition cannot be believed. it is also noted that each case has its own facts and circumstances and though they were the wives of the brotherinlaws of the respondent but their story, facts and circumstances leading them to take divorce might be different and the same cannot be applied to the present case. Here, in the present case, it transpires that the wife is not obedient and did not understand her responsibilities of a house wife towards her husband, children and inlaws. The respondent also admitted in her deposition that their marriage life was smooth for 10 years until they did not come to Page 11 of 13 C/FA/4870/2010 JUDGMENT Ahmedabad to reside in joint family. Thereafter, she has filed complaint for dowry and under Section 498 (A) of Indian Penal Code. As has been held in II (1995) DMC 583 that wife's threats and attempts to commit suicide, her act of lodging false complaint against her husband and his relations under Section 498 -- A/34 I.P.C. were incidents of her cruel behaviour towards husband and she was guilty of offence of cruelty. Here, in the present case the wife has threatened the petitioner and has also threatened to commit suicide and this version is not rebutted by the wife with evidence, whereas the husband and his parents who have also been examined and cross examined by the wife, have categorically substantiate this version and hence wife can be held guilty of offence of cruelty. The petitioner's case is also supported by the decisions reported in II (2002) DMD 457 (referred at Sr. No. 14) and l (1990) DMC 567 (referred at Sr. No. 15)."
6. In aforesaid view of the matter, we are in complete agreement with the view taken by the learned trial Judge, which requires no interference at the hands of this Court. The present appeal, being devoid of any merits, is dismissed. In the facts and circumstances of the case, no order as to costs. Page 12 of 13
C/FA/4870/2010 JUDGMENT
[ K. S. Jhaveri, J. ]
[ G. B. Shah, J. ]
hiren
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