Bombay High Court
Smt.Sadhana W/O Hemant Walwatkar vs Shri Hemant S/Io Shalikramji Walwatkar on 18 February, 2021
Author: N. B. Suryawanshi
Bench: A. S. Chandurkar, N. B. Suryawanshi
1 Jg-FCA-89-2014.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FAMILY COURT APPEAL (FCA) NO. 89 OF 2014
Smt. Sadhana w/o Hemant Walwatkar
aged about 30 years, Occu:- Houswife
R/o Near K.D.K. College c/o her father
Shri. Nagoraoji Hiwarkar Plot No.369
Darshan Colony, Nandanvan Nagpur
... Appellant
// Versus //
Shri. Hemant s/o Shalikramji Walwatkar
Aged about 35 years, Occu :- Service
R/o Plot No. 6, Gorewada Road Utthan
Nagar, Nagpur
... Respondent
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Ms. Amruta Ghonge, Advocate for the appellant
Shri R. N. Sen, Advocate for the respondent-Sole
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CORAM : A. S. CHANDURKAR AND
N. B. SURYAWANSHI, JJ.
RESERVED ON : 14/01/2021
PRONOUNCED ON : 18/02/2021
JUDGMENT (Per : N. B. SURYAWANSHI, J.)
This appeal fled under Section 19(1) of the Family Courts Act, 1984 by the appellant wife takes exception to the judgment passed by the Family Court, Nagpur in Hindu Marriage Petition No.A-410 of 2004, thereby passing a decree of dissolution of marriage of the ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 2 Jg-FCA-89-2014.odt appellant wife and the respondent husband.
2. Facts, in brief, leading to this appeal are as follows:
The husband fled Petition No.A-410 of 2004 under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights in short contending that, the marriage between the wife Sadhana and the husband Hemant was solemnized on 15.07.1999 as per Hindu rites and customs at Nagpur and out of the wedlock, son Piyush was born on 25.05.2000. After the marriage, the wife came for cohabitation at the house of the husband. However, she insisted that the husband should stay separately from his parents. After residing for about 21/2 months at matrimonial home, the wife went to her maternal home along with her father and returned back to matrimonial home after about a month. After 15 days, the wife's father came back and took her to the maternal home without informing the husband and without his consent . The wife stayed at her maternal home for about eight months. The husband therefore approached Apad Grast Mahila Kendra, Koradi and lodged a ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 :::
3 Jg-FCA-89-2014.odt complaint. After the intervention of elderly persons and Apad Grast Mahila Kendra, the wife came back to the husband's house after executing a Bond to live properly with the husband on 26.08.2000. After a few days, the wife again started demanding for living separately. The husband agreed to that and started living separately in a rented house, where they lived together for more than three years. Because of the strange behavior of the wife, the husband was required to change the rented premises 3 to 4 times. The wife used to say that a particular rented house was not good. The wife used to frequently go to her parent's house. When the husband objected to that, the wife used to quarrel with him. She used to quarrel with him on petty things. On 27.09.2001, the wife's father came at the rented premises of the husband and told the wife that the rented accommodation was not sufcient and asked her to shift to his house along with the household goods. He also threatened the husband to shift to his house along with the household goods, else he will carry him and the household goods by bringing 2 to 4 people. According to the husband, he fell ill due to such harassment and was required to be ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 4 Jg-FCA-89-2014.odt admitted in Lata Mangeshkar Hospital, Nagpur on 03.09.2001. He lodged a report about the threats given by the wife's father, which was registered for ofence punishable under Section 506 of the Indian Penal Code. The husband earlier also had lodged a complaint against the wife for leaving his house without intimation and consent. The husband had also lodged a complaint against the brother of the wife namely Prakash Nagorao Hiwarkar and her father for threatening him with dire consequences. On 18.02.2000, a complaint was also lodged against the father and brother of the wife for assaulting the husband and threatening and abusing him and his parents. It is further contended that when the wife went to her parent's house on 22.12.1999, she took away all the gold ornaments i.e. Mangalsutra, Golden chain, Finger ring, Ear ring and Cash of Rs.5,000/-. Accordingly, the husband lodged a police report in that behalf on 29.09.2001 at Gittikhadan Police Station. The wife had developed a habit of leaving the house of the husband as per her wish and lastly on 04.07.2004, she left the house of the husband along with son Piyush and went to her parent's house. On the next day, the husband went to ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 5 Jg-FCA-89-2014.odt the wife's maternal home and brought back son Piyush. However, son Piyush was again taken back by the wife on 08.07.2004. Though the husband tried to bring back the wife, she refused. Hence, the husband sent a legal notice on 09.07.2004 and called upon the wife to come back within 10 days from the date of receipt of notice. The wife replied the said notice levelling wild and false allegations of ill treatment and demand of dowry against the husband and claimed maintenance of Rs.1,500/- each for herself and for son Piyush. On these pleadings, the husband prayed for decree of restitution of conjugal rights.
3. During the pendency of the said petition, a compromise was arrived at before the Lok Adalat and compromise terms were fled at Exh-19, whereby the husband and the wife decided to live together on experimental basis. The consent terms were executed. In terms of the compromise, the wife went for cohabitation to the husband. During cohabitation, a girl child Janavi was born on 23.06.2006.
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4. On 27.10.2005, the husband fled a pursis at Exh-21 before the Family Court alleging therein that in view of a settlement in Lok Adalat, he took the wife to his residence for stay and cohabitation. However, there was no change in the behavior of the wife. She was not cooperating with the husband and his family members. She was giving threats to all the family members including the husband to implicate them in false criminal case. Due to these circumstances, life of the husband and his family members had become miserable.
5. Record further reveals that when the wife conceived at the time of daughter, she was advised to go to her parent's house for delivery. Accordingly, order to that efect was passed by the Family Court on 13.04.2006 at Exh-1. The husband agreed to pay an amount of Rs.750/- per month for maintenance till the delivery and to pay an amount of Rs.2,000/- for delivery expenses.
6. The husband moved an application Exh-25 seeking amendment to the petition alleging cruelty on the ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 7 Jg-FCA-89-2014.odt part of the wife. In the application, it was contended that after the delivery of girl child, the wife came back to the matrimonial home. Thereafter, she started harassing the husband and his family members. She was provided two rooms for her stay. She used to cook food for herself and did not provide food to the husband. On 18.11.2006, the wife went to the kitchen of her mother-in-law and opened the connection of cooking gas and cut down the rubber pipe of gas. After smelling the gas, the mother-in-law rushed to the kitchen and put of the gas connection. A complaint to that efect was lodged by the mother-in-law. The wife quarreled with the husband and his mother on 30.12.2006 and had beaten both of them. Complaint in that behalf was lodged by the husband on 30.12.2006. The wife went to her parent's house on 31.12.2006 and since then was staying with her parents without permission and consent of the husband. The husband therefore claimed that due to the cruel behavior and harassment on the part of the wife, it had become difcult for him to stay with her and therefore he wanted to amend the petition seeking decree of divorce and dissolution of marriage.
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7. The wife resisted the amendment application Exh-25 by fling reply at Exh-28. She denied all the contentions in the amendment application and stated that though she was taken back after the settlement, she was made to stay in two separate rooms, wherein there was no ventilation and sun light. The family members of the husband were practically practicing untouchability against her. She was not given food, etc. She was treated like a slave. Her son Piyush was not permitted to meet her. She was not allowed to enter the family kitchen. The separate room wherein she was required to cook food, was without door panels. The husband wanted to get rid of the wife and the girl child. The wife was humiliated, harassed and subjected to domestic violence and she was driven out of the house. When she gave complaint to the Police for ofence punishable under Section 498-A of the Indian Penal Code and when the Police were about to register ofence, the petition for restitution of conjugal rights was fled by the husband. The amendment sought by the husband was totally changing the nature of the proceedings, and therefore, the amendment ought not to be allowed in view ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 9 Jg-FCA-89-2014.odt of bar under Order 6 Rule 17. The wife therefore strongly opposed the amendment application and prayed for its dismissal. The Family Court allowed the amendment application vide order dated 27.02.2007, which reads thus :
"The petitioner only wants to
substitute the prayer clause. He is entitled to
make such prayer on same facts. Hence, the petitioner is allowed to amend his petition's prayer clause".
Accordingly, the husband amended the cause title and the prayer clause.
8. The wife by fling an application at Exh-32 sought permission to adopt the reply fled by her to the application for amendment as the written statement to the amended petition, which was allowed by the Family Court vide order dated 06.07.2007.
9. The husband examined himself by fling afdavit in lieu of his evidence which was a replica of his pleadings in the petition. He also deposed that during the pendency of the petition for restitution, a settlement was arrived in Lok ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 10 Jg-FCA-89-2014.odt Nyayalaya on 09.07.2005 as per Exh-19. However, after joining the company, the behavior of the wife did not change. She used to quarrel with the husband and his parents on one count or another and used to abuse in flthy language. During the stay with the husband, the wife conceived and delivered a girl child. The husband bore delivery expenses and maintenance during the stay of the wife with her parents. During her stay, the wife ignored understanding given to her by the Family Court and she continued her harassment and cruel treatment towards the husband. Therefore, the husband had no option but to amend the petition for seeking a decree of divorce. He therefore sought a decree of divorce. He admitted in cross- examination that soon after marriage, the wife and the husband resided along with his parents for three months and thereafter they lived separately in a rented house. He admitted that since the beginning, the wife wanted to live separately from his parents and she had no other demand. He also admitted that he and the wife had diferences before the settlement. He denied that even on the day of deposition, they were having diferences. He stated that ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 11 Jg-FCA-89-2014.odt the wife was not behaving properly with him, his son and his parents. She was not cooking properly as per his liking, therefore the husband asked her to live separately in another room. He stated that being his wife, she could live in his house. He denied the suggestion that the wife never harassed him and he drove her out of the house.
10. Suman Walwatkar mother of the husband was examined by the husband, who deposed that after the marriage, the wife and the husband lived with them for about 2 to 3 months. She did not know where they were staying after separation. They returned to her house after four years. Even after her return, the wife's behavior was not proper. The wife was abusing her in flthy language. Her main grievance against the wife was that she was not doing the household work properly. According to this witness after returning back for about 15 days the wife behaved properly, thereafter she started cooking for herself. In the cross-examination she admitted that she had no knowledge about the harassment or ill treatment to the husband from the wife and since last three years, the wife had not ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 12 Jg-FCA-89-2014.odt interfered in her family. She also admitted that she never interfered in the relations between the husband and the wife and during the last three years, she did not enter their room.
11. The husband also examined his father in support of his case. He deposed about the frequent visits of the wife to her parent's house and her staying there for months together. That the behavior of the wife was bad. She used to quarrel with his wife Suman and used to abuse her. The wife was not doing any household work and she was cooking food for herself and not for the family members. His wife Suman was required to do all the household work. The wife stayed with the husband during the pendency of petition for restitution of conjugal rights and the girl child was born on 23.06.2006. The husband bore all the medical expenses of delivery. In the cross-examination he admitted that the wife never misbehaved with him. He and his wife never called the husband and the wife for living with them. He admitted that the husband and the wife were living separately in a room of his house along with daughter Janavi ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 13 Jg-FCA-89-2014.odt and son Piyush was living with him and his wife. He stated that he did not keep the infant daughter with him because of the wife's behavior. He further deposed that he had no objection with the husband and the wife living in his house provided they live properly.
12. The wife fled her afdavit in lieu of evidence reiterating the contentions in her written statement. In the cross-examination she deposed that after the marriage, she lived with her in-laws for 5 to 6 months and thereafter she went to her parent's house for delivery, where she stayed for eight months. After the delivery, when the wife returned back to her matrimonial home, she lived there for about 2 to 3 months and thereafter they started living separately from her in-laws. She and her husband lived in a rented house for about three years and thereafter again they started living with in-laws. She denied that when they were living separately, her relations with in-laws were good. According to her, she returned to in-laws house with an intention to live separately in their house so that she could spend the house rent for the household expenses. She admitted that ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 14 Jg-FCA-89-2014.odt on 22.12.1999, her father had come to her matrimonial home and she went along with him and she stayed there for eight months. She admitted that the husband had lodged a complaint with Apad Grast Mahila Kendra, Koradi and after counselling, they both decided to live together. She admitted the settlement memo (Exh-50). She admitted that after settlement, she asked him to live separately from his parents. She also admitted that before the settlement, she had stayed with her parents for about one year. She denied that the husband came to take her back on several occasions. She stated that her uncle made an attempt to reach her back. She denied that she had breached the said settlement. She admitted the birth of daughter Janavi after settlement. She also admitted that after a settlement for some period, the husband and his parents treated her nicely. She admitted that she was given understanding by everybody that she should live happily with her in-laws and that there was no change in her behavior. She volunteered that her in-laws were not behaving in proper manner, therefore, she had to behave like that. She further deposed that at the time of deposition, she was living in two small ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 15 Jg-FCA-89-2014.odt rooms and the husband was residing with his parents. She admitted that there had been no cohabitation between her and the husband since 2005. She stated that there were two doors and two windows to her block. She also admitted that she had not fled any document in respect of her complaint under Section 498-A of the Indian Penal Code. She admitted that portion marked "A" in her afdavit of evidence was incorrect. Similarly, she also admitted that the statement in the afdavit portion marked "B" to the efect that "her in-laws observed untouchability towards her and that she was not allowed to enter in the kitchen, middle room or the place where the deity was kept" was incorrect. She also admitted that statement in her afdavit portion marked "C" that "she lodged a complaint against the husband and in-laws at Gittikhadan, Police Station under Section 498-A, which was registered by the Police and when the Police were about to arrest them, they assured the Police that they will settle the matter and the wife would be taken back" was incorrect. She also admitted that during the pendency of the proceedings, she had given birth to a female child and that she was advised to go to her parent's ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 16 Jg-FCA-89-2014.odt house for delivery and the husband was asked to pay maintenance for two months. It was also admitted that in spite of Court's directions, she did not go to her parent's house for about one month. According to her, the husband only paid her delivery expenses of Rs.2,000/-. She denied the suggestion that inspite of understanding given to her, her behavior did not change and she made false allegations against the husband. She stated that the husband was not providing medicines and clothes to her and she used to go to her parent's house whenever she was sick. She had no other alternative and she was staying in the husband's house inspite of the fact that he was not providing her anything. She stated that she was not ready to live with her parents. She admitted that she had asked the husband to pay her some amount and thereafter she would give him divorce. She volunteered that she had said so because the husband asked her to leave the house. She stated that even if the husband was ready to pay her a reasonable amount of permanent maintenance, she was not ready for divorce. She also admitted that since the birth of their daughter, they had no physical relations as husband and ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 17 Jg-FCA-89-2014.odt wife.
13. The wife's father Nagorao was examined in support of her case, he stated that he was on visiting terms with the husband prior to 2 to 3 years. The husband and his parents used to quarrel with the wife. The husband wanted that the wife should leave his house and therefore he used to harass her. He could not tell the reason, why the husband wanted to drive the wife out ? When he talked to the husband and his parents, they pointed out mistakes of the wife. In the year 2000, there was a quarrel between the wife and the husband and his parents and the wife came to him and she wanted to lodge a report. However, he did not allow her and he personally lodged a report. Thereafter, he did not know what happened to the said complaint. The wife and the husband lived separately from the husband's parents for about 5 to 6 years. Thereafter, they were living in the same house. Since the beginning, the relations between the wife and her in-laws were not normal. He further stated that since the last three years, he was not visiting the husband's house. He did not feel that the wife ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 18 Jg-FCA-89-2014.odt and the husband should take divorce. In the cross, he admitted that after their quarrels, the wife used to come to his house and used to stay there for about a week. He admitted that on 22.12.1999, the wife came to his house and stayed there for eight months. He denied that he did not make any eforts to reach the wife back during that period. He admitted that the husband's parents and some elderly persons had come to take the wife. According to him, she had gone back with them. He denied that on 27.01.2001, she had gone to the husband's house and picked up a quarrel with his parents and threatened them. He admitted that on 04.07.2001, the wife had come to his house, but denied that since then she was staying with him till the date of fling of the petition. He admitted that the husband paid Rs.2,000/- towards delivery expenses of the wife. He stated that the husband did not pay maintenance of Rs.750/- per month to the wife. He admitted that the wife is living with her husband and he was maintaining her.
14. The Family Court after recording the evidence allowed the petition fled by the husband on both the ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 19 Jg-FCA-89-2014.odt grounds i.e. cruelty and desertion and dissolved the marriage of the husband and the wife by granting decree of divorce. Hence, the wife has fled the present appeal.
15. Heard the learned advocate for the appellant wife and the learned advocate for the respondent husband.
16. The learned advocate for the appellant wife submitted that the general allegations of cruelty were leveled by the husband in the petition fled under Section 9 for restitution of conjugal rights. The said acts were condoned in view of the settlement. Therefore, cruelty only after resumption of cohabitation could have been taken into consideration by the Family Court. It is submitted that only cause title and the prayer was amended and the decree of divorce was sought on the ground of cruelty. However, the pleadings were not amended. In absence of pleadings and the evidence of cruelty of the post cohabitation period after the settlement, the Family Court was not justifed in granting decree of divorce. There was no material on record to justify the grant of decree of divorce. Further submission ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 20 Jg-FCA-89-2014.odt is that the pursis at Exh-21 was fled by the husband on the sly, no opportunity was given to the wife to rebut the said allegations, even no question in that behalf was asked to the wife in cross-examination. She urged that there is total non application of mind on the part of the learned Family Court in allowing the petition and granting divorce. Hence, the impugned judgment and decree passed by the Family Court is liable to be quashed and set aside. In support of submissions, the learned advocate for the appellant has placed reliance on the following judgments.
i) Uttara Pravin Thool...Vrs... Pravin Anurag Thool, 2014(2) Mh.L.J. 321
ii) Dr. N. G. Dastane ..Vrs.. N. Dastane, 1975(2) SCC 326
iii) Suman Singh ...vrs... Sanjay Singh, 2017(4) SCC 85
iv) J. ...Vrs.. JC, 2019 SCC online Del 7703
v) Anil Singh ...vrs... Arti Rani, 2013 SCC Online Del 676
17. On the other hand, the learned advocate for the respondent husband supported the decision of the Family ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 :::
21 Jg-FCA-89-2014.odt Court contending that the respondent by leading cogent evidence proved the cruelty of the wife and the Family Court has passed a well reasoned order. He referred to the evidence on record to urge that there was material on record to indicate the cruel acts of the appellant. He therefore contended that no case is made out by the wife to interfere in the judgment of the Family Court, hence the Family Court appeal deserves to be dismissed.
18. We have heard the submissions of the learned advocates representing the parties at length and perused the record. On hearing the rival contentions, following point arises for adjudication :
Whether the decision of the learned Family Court in passing the decree of divorce in favour of the respondent on the ground of cruelty is legal and proper ?
19. Admittedly, after solemnization of marriage on 15.07.1999, son Piyush was born on 02.02.2000. Thereafter diferences arose between the appellant and the respondent. The respondent initially fled Petition No. A-410 ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 22 Jg-FCA-89-2014.odt of 2004 on 27.07.2004 under Section 9 for restitution of conjugal rights. During the pendency of the proceedings for restitution of conjugal rights, a settlement (Exh-19) was arrived, thereby the appellant and the respondent decided to stay together on experimental basis. Accordingly, the appellant and the respondent resided together and during their cohabitation, daughter Janavi was born on 23.06.2006. The delivery took place at the parental house of the appellant under the orders of Court. The respondent, while the appellant was staying with him after the settlement, fled pursis Exh-21 on the sly, stating therein that there was no change in the behavior of the appellant and she was not cooperating with the respondent and his family members and that she was threatening the family members to implicate them in false case. It appears from the record that the appellant was not given any opportunity to respond to the pursis (Exh-21).
20. The respondent thereafter fled application Exh- 25 on 15.01.2007 seeking amendment to the pleadings and prayer of his petition fled for restitution, thereby amending ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 23 Jg-FCA-89-2014.odt it to claim decree of divorce and dissolution of marriage. The said application though was resisted by the appellant, was allowed by the Family Court vide order dated 27.02.2007. In the order, it was specifcally recorded that the respondent only wanted to substitute the prayer clause and that he was entitled to make such prayer on same facts. In pursuance of the orders, the respondent amended the cause title viz : "PETITION UNDER SECTION 13(1) (i) OF THE HINDU MARRIAGE ACT, 1955 FOR GRANT OF DECREE OF DIVORCE" and the prayer clause was amended by adding following prayer :
"It is therefore most respectfully prayed that this Hon'ble Court may be pleased to pass a decree of divorce in favour of the petitioner dissolving the marriage solemnized on 15.07.1999 between the petitioner and the respondent in the interest of justice."
It is pertinent to note here that the respondent did not amend the pleadings of the petition fled for restitution of conjugal rights and he prayed for decree of divorce on the basis of the same pleadings, which were made by him in the petition fled for restitution of conjugal ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 24 Jg-FCA-89-2014.odt rights.
21. It is also an admitted fact on record that in terms of settlement before the Lok Adalat, the appellant and the respondent executed the settlement deed (Exh-19) and started cohabitation. During the cohabitation, daughter Janavi was born. In view of the cohabitation between the appellant and the respondent in terms of settlement, the respondent had condoned the acts of cruelty alleged by him at the time of fling of petition for restitution of conjugal rights, in terms of Section 23(1)(b) of the said Act. On the point of the condonation, the learned advocate for the appellant rightly relied upon the ratio in Uttara Praveen Thool (supra). The said decision is authored by one of us (Hon'ble Shri. A. S. Chandurkar, J.) wherein after taking into consideration the provisions of Section 23(1)(b) of the said Act and the ratio of the Hon'ble Apex Court in Dr. N. G. Dastane (supra) and various High Courts, this Court held :
"22. Thus, to constitute condonation in terms of Section 23(1)(b) of the said Act, there must be forgiveness and restoration. The question, however, is whether for constituting condonation, the conduct ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 25 Jg-FCA-89-2014.odt of only one of the parties is to be considered or whether the conduct of both parties is to be taken into account. In other words, whether the unilateral act of one of the parties is to be considered or whether the bilateral acts of both the parties are to be considered. If for constituting condonation, there must be forgiveness and restoration, it is obvious that bilateral acts of both parties will be required to be taken into account while considering the aspect of condonation. Forgiveness and restoration cannot be unilateral and for it to be efective and fruitful, it has to be bilateral. One party to the marital tie may be ready to forgive and restore the same. One of the modes could be by fling proceedings for restitution of conjugal rights. The other party may, however, not be ready to forgive and restore said tie. The proceedings fled by one party for restitution could be opposed by the other by refusing to rejoin the marital tie. The same would not result in condonation in as much as there would be no consensus between the parties for the purposes of forgiveness and restoration. It would remain one-sided. Hence, the aspect of condonation will have to be adjudicated after taking into account the bilateral acts of both parties. The ofer made by one party and the reciprocal conduct of the other will have to be viewed together while determining condonation in terms of Section 23(1)(b) of the Said Act.
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26 Jg-FCA-89-2014.odt What we can gather from the above precedents is that condonation implies knowledge to the husband of being wronged by wife, conscious election by him not to exercise the legal right fowing therefrom, to forgive the wife conditionally and the same resulting in the resumption of normal relationship between the couple. Thus, it is resumption of normal marital ties with mutual understanding which assumes signifcance. In matter like one at hand, where the desertion continues without even a day's break, the conditional forgiveness ofered by the husband is not reciprocated by the respondent wife. On the contrary, she refuses to take advantage of the opportunity available and persists in desertion. As such, condonation which technically is a bilateral act or decision, never occurred and insistence upon the said aspect by the appellant wife is misconceived and ill advised."
If we apply this ratio to the facts of the present case, it is obvious that the respondent had forgiven the appellant wife and resumed normal relationship and cohabitation and during that period, daughter Janavi was born. There are no pleadings to indicate any act of cruelty after the birth of the second child on 23.06.2006. Therefore, the ground of cruelty was not available to the ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 27 Jg-FCA-89-2014.odt respondent, in absence of amendment in the pleadings about the cruelty on the part of the appellant during the period of cohabitation after settlement and proof of the cruelty for that period.
22. The fndings recorded and the conclusions drawn by the Family Court are not based on the pleadings and evidence of the parties. The Family Court has observed that "even after re-conciliation according to the respondent, the appellant continued to live in separate room and continued to quarrel with the respondent and his parents ." It was also observed that "during the period of re-conciliation, both the parties regularly attended the Court and the Family Court had an opportunity to observe the respondent's (wife's) attitude, nature and behavior, it will not be out of place to mention here that, the diferences between the parties were on account of respondent's adamant nature." It is further observed that "even during re-conciliation, there were diferences and disputes between the parties on account of the appellant's behavior and she was not ready to change the behavior." These observations of the Family Court ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 28 Jg-FCA-89-2014.odt according to us are unwarranted and uncalled for. The Family Court has recorded these fndings on the basis of surmises and conjectures, assumptions and presumptions. The learned Family Court has erred in recording the above fndings without assigning cogent reasons in support of them. The Family Court was expected to record the fndings on the basis of pleadings adduced by the parties. The Family Court has also placed reliance on pursis at Exh-21 ignoring the fact that no opportunity was given to the appellant to reply the pursis at Exh-21.
23. The Family Court has failed to appreciate the evidence before it in the proper perspective and has erroneously proceeded to grant decree of divorce in favour of the respondent without there being sufcient evidence on record to spell out cruelty on the part of the appellant, which would cause a feeling of deep anguish, disappointment and frustration in the respondent caused by the conduct of the appellant for a long time. The said conduct had to be sustained and unjustifable and the behavior of the appellant should actually be afecting the ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 29 Jg-FCA-89-2014.odt physical and mental health of the respondent. The treatment as complained of and the resultant danger or apprehension of the respondent must be very grave substantial and weighty. (Vide Samar Ghosh ..Vrs... Jaya Ghosh, 2007(4) SCC, 511).
24. In the present case, absolutely no evidence was adduced by the respondent to prove mental cruelty on the part of the appellant. Whatever allegations he had levelled in the pleadings of his petition fled for restitution of conjugal rights, those alleged acts of cruelty were condoned by the respondent by entering into a settlement and cohabiting with the appellant during the pendency of the trial. This aspect of condonation of the conduct of the appellant by the respondent is totally ignored by the Family Court. Thus, non application of mind and erroneous appreciation of evidence on the part of the Family Court is apparent on the face of the record. The allegations levelled by the respondent and his witnesses against the appellant could at the most be said to be an outcome of normal wear and tear of life. Applying the aforestated ratios to the facts ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 30 Jg-FCA-89-2014.odt of the present case, merely because the appellant wanted to stay separately from her in-laws, this by itself cannot be a ground to attribute the conduct causing the mental cruelty by her to the respondent especially in the absence of any evidence whatsoever. We therefore are of the considered view that the fndings recorded and conclusions drawn by the Family Court, since are not supported by the pleadings and the evidence on record, they are not sustainable. The Family Court was not justifed in granting decree of divorce in favour of the respondent, in absence of the pleadings of cruelty and the supporting evidence for proving it. We therefore fnd that the impugned decision of the Family Court is unsustainable in law and facts of the case and the same is liable to be set aside. The point is answered accordingly.
25. For the aforestated reasons, we pass the following order :
i) Family Court Appeal No. 89 of 2014 is allowed.
ii) The judgment and decree passed by the Family ::: Uploaded on - 20/02/2021 ::: Downloaded on - 20/02/2021 21:05:23 ::: 31 Jg-FCA-89-2014.odt Court, Nagpur dated 30.06.2008 in Petition No. A-410 of 2004 is hereby set aside and the petition fled by the respondent seeking divorce is dismissed.
iii) Parties to bear their own costs.
JUDGE JUDGE
TAMBE
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