Bombay High Court
Ajay Jawaharlal Kakaria vs Sandhya Ajay Kakaria on 21 August, 1992
Equivalent citations: II(1992)DMC554
JUDGMENT D.J. Moharir, J.
1. The first of the two above-mentioned Appeals namely, Family Court Appeal No. 37 of 1992 is filed by the original patitioner-husband whose petition was presented in the first instance to the City Civil Court at Bombay and thereafter transferred to the Family Court at Bombay, claiming in the first instance a decree of annulment of marriage with the respondent-wife and alternatively dissolution of marriage by a decree of divorce, which came to be rejected by the Family Court.
2. The second of these two Anneals being Family Court Appeal No. 58 of 1992, also arising from the same judgment, however takes exception to the omission or failure on the part of the Family Court to consider the question of granting relief to the respondent-wife on the issue of appropriate and adequate maintenance, a direction for return of stridhan property as also direction in regard to the provisions for an adequate residence for her.
3. We shall be referring to the appellant and the respondent in both these appeals by their original position as the petitioner and the respondent respectively.
4. The petitioner Ajay Jawaharlal Kakaria is the son of a Chartered Accountant Shri Jawaharlal Kakaria practising in Bombay and residing in the Mahim locality of Bombay. The Kakaria family, it would appear, hails from a place called Bordi in Thane District. Dahanu is a Taluka in Thane District It is to Dahanu that the respondent Sandhya belongs. It is also quite apparent that both these families are not only well-to-do but in fact affluent ones. The petitioner Ajay passed his B.Com. examination and continued his studies for becoming a Chartered Accountant so as to be part and parcel of his father's firm. In spite of several attempts he continued to fail in the final C.A examination. It was while he was still studying and appearing for the said C.A. examination, that his marriage was settled with the responded Sandhya sometime in February 1986. The marriage was actuary celebrated on 9th December 1986. In the interregnum Ajay and Sandhya had met several times and passed time together, happily. The marriage was celebrated with considerable pomp as it would also appear, it being the plea of the respondent Sandhya that the expenditure incurred on the. marriage was considerable apart from dowry and presents worth Rs. 4.00.000/- presented to Ajay-the bridegroom, by her parents.
5. After the marriage was celebrated at Dahanu, Ajay and Sandhya proceeded to Ajay's family home at Bordi. At the material time the persons living in the family house at Bordi were Ajay's grandfather one Mishrimalji, his uncle and also a brother, with their family members. On the very first night of the marriage, the marriage could not be consummated, the explanation of the petitioner and the respondent being against each other. According to the petitioner, he found the respondent quite cold, frigid and averse to sexual intercourse whereas the respondent-wife explained that it was on account of the husband's feeling of exhaustion and sickness that the consummation did not occur that night. Even thereafter the consummation did not take place, which is entirely undisputed and which fact of non-consummation is the foundation of the petitioner's claim for a decree of annulment of the marriage. Ajay and Sandhya lived at Bordi till 14.1.1987 when they went to Sandhya's parental home at Dahanu for celebrating Makar Sankranth festival. There also an endeavour on the part of the petitioner to have the marriage consummated resulted in a rebuff from her. The parties returned to Bordi and lived there for a few months, the wife admittedly visiting the parental home at intervals in this period. In April 1987 the petitioner along with Sandhya proceeded to Bombay to prepare for his C.A. examination. Even at Bombay where they lived in the petitioner's father's house in Mahim, there was no sexual contact between them. After Ajay's C.A. examination was over, the couple proceeded to Mahabaleshwar for their honeymoon with the intention of spending a week there. The stay at Mahabaleshwar, the privacy available, and even the atmosphere of a hill station did not prove to be of much help in consummation of the marriage. The trip intended to last for a week or so, came to be terminated in 3 or 4 days and the couple retuned to Bombay.
6. Thereafter, until 4th February, 1988 Ajay and Sandhya lived at Mahim, Bombay on which date she left the marital home, as contended by her, virtually escaped from the marital home finding the main door of the flat ajar in the morning. She reached Mahim Police Station with an unkempt appearance, lodged complaint of ill-treatment of which she was subjected to by the husband and the mother-in-law, about the fact that 'the husband had not treated her as a wife' and thereafter proceeded to her parental home at Dahanu where she had been living ever since then. Though however, during the pendency of the present petition, on an application made by her to the Court she was permitted to reside in the flat at Mahim, Bombay, that being considered to be her matrimonial home since the petitioner-husband Ajay was residing there with his parents, the flat being of the ownership of the father.
7. According to the petitioner, the period of stay at Bordi after the marriage Sandhya had paid three visits to the parental home, unobjected by anybody. After her return along with him to Bombay in March or April 1987 also she had visited the parental home from time to time, though it is one of the contentions that such visits were as defiant as they were without his permission or that of his parents. The several grounds raised in this petition are therefore in the first instance that the marriage required to be annulled by a decree for annulment on the ground that it had never come to be consummated until the date of presentation of this petition in October 1988. The respondent-wife was blamed for the non-consummation by reason of the coldness and frigidity from which she suffered and the total aversion which she showed for sex. In as much as this condition had persisted from and since the date of the marriage, the petitioner was entitled to such a decree.
Cruelty, under Section 13 of of the Hindu Marriage Act, 1956 is the second ground with the petitioner has raised for claiming dissolution of marriage by a decree of divorce, on several facts and circumstances which we will presently enumerate. The first and the most important one according to the petitioner is the cruelty which was heaped upon him by reason of the wife challenging his very potency and manliness. She had come to describe him and air her opinion more widely as being a person who was impotent.
Though it was after the present proceedings were instituted, that sometime in April 1991 she had given an interview to a society magazine-'Savvy'. The interview as given by her, alleges the petitioner, was a reflection of the outburst of her allegation that according to her the petitioner-husband was as impotent person. At any rate, if the petitioner had not been called as an impotent person directly enough, the crux of the facts and circumstances stated by her very clearly amounted to describe him as such. That in itself constituted a ground of cruelty, mentally, to entitle him to a decree for dissolution of marriage.
8. The other grounds, facts and circumstances alleged, are in an entirely different sphere of conduct of the respondent-wife. The petition enumerates as many as 20 more sets of facts and circumstances each of which and cumulatively, all of which establish that the wife has been guilty of cruelty towards him and entitles him therefore to a decree for dissolution of the marriage. We may briefly state these: A complaint was made by the respondent to the police against the petitioner himself and his mother that she had been illtreated by them; it was an entirely false one and amounted to harassment of the petitioner. The respondent used to indulge in criticising the petitioner's friends whenever they visited him and showed complete reluctance in meeting and talking to them. The respondent also indulged in accusing him of unfaithfulness towards her, in that she would charge, him with carrying on affairs with other girls. At the sametime the respondent resented the petitioner's even casually talking to members of the fair sex. Whenever they went out for a stroll along the beach, he found her cold and keeping herself aloof instead of being close, hugging to him as a newly married couple ought to be or would be. Not only did the respondent criticise his friends but in fact even objected to their visits altogether. The visits of these freinds were unwelcome to her on the premise that they were persons who used to indulge in taking non-vegetarian food. By reason of his pre-occupation with the work in his father's firm, there used to be occasions when the petitioner used to return home late. Whenever there was delay in returning home, she used to cast aspersions, hinting that he had been spending his evenings for purposes other than the office work. She used to prevent him from going to the library also and had also prevented him from going for his driving test, for obtaining a car driver's licence. Result of this obstruction was that he always remained without a car driver's licence. The petitioner used to take tea; to that also she objected. The visits to the parental home, as stated earlier, used to be without his permission and without informing the petitioner's parents also. She declined to serve food to the family members whenever they gathered at the dining table and she had otherwise also an apathy in attending to him and exhibited a want of s lightest concern for the husband. On one occasion she purchased a new dress for herself which did not however fit to her size and it had to be altered. The tailor to whom it was given brought it rather late, at about 10 p.m. Asking him to come at 10 p.m. was improper conduct on her part. On the way from their house to the beach there was a small pan shop. He found the respondent-wife smiling at the pan shoy keeper and had to be chastised when he also found that the pan shop keeper responded to her smiles. This constituted conduct unbecoming of a wife. Earlier on an occasion while they were still to be married, and had gone for a stroll along the beach at Bordi, the police accosted them and suspecting some kind of an affair between them, took them to the police station where she created not only a scene but indulged even in making allegations against the petitioner himself. During their stay together at Bombay, between April 1987 and February 1988 when she left, he used to ring her up from the office at times. As soon as she would recognise his voice, she would bang the teleghone shut. For days together she used to refrain from talking to the family members of the petitioner and for triflings used to abstain from taking food also. She thus expressed her unhappiness at having been married to the petitioner and used to cry aloud early in the morning much to the discomfiture of the other family members. Apart from not being helpful in the household work, being quarrelsome, she also kept pressurising the petitioner for shifting to Bordi for residence as according to her she was intolerant of life in Bombay. The interview given to the 'Savvy' magazine apart, she was also at the root of publication of defamatory articles against the petitioner and his family members in a daily 'Jansahi' published from Dahanu and also pamphlets which were distributed to the members of the co-operative housing society at Mahim. In fact the distribution of the pamphlets was extended to other residential locality. Upon these facts and circumstances, the petitioner therefore contended that the conduct of the wife was so cruel as to making living together difficult any more and therefore entitled him to a divorce.
9. The petition was resisted by the wife. According to her it was she who to her extreme surprise and total disappointment had come to be illtreated both by the petitioner-husband and his family members, in particular his mother. It was entirely false to allege that she did not like Bombay or wanted him to shift to Bordi or to some other place in the countryside.
In fact she had been educated in the Podar College at Bombay and had obtained her degree of B.Com. from the University of Bombay. She was prepared to live with the petitioner anywhere as he might choose. She categorically, denied that she was either cold or frigid or that it was at her instance that the marriage had remained to be consummated. In fact, as she submitted, in the first few days after the marriage the husband had kept consistently complaining about some kind of weakness, some kind of illness, which prevented him from having sexual intercourse with her in spite of her endeavour, and in spite of the lead also which she attempted to take in consummation of their marriage. Sympathising with his weak or ailing condition in the initial period after the marriage, she had hoped that things would improve in future. She was aware of the fact that he had to prepare for his C.A. examination and did not want to come in his way and therefore also persevered to encourage him for concentrating on his studies but at the same time having proper privacy and enjoying life as a married couple ought to. However, the sexual intercourse never took place between them and the marriage remained unconsummated. According to the respondent-wife, this feeling of concern apart, she had reason to feel that there were other reasons for which the petitioner-husband was deliberately keeping the marriage unconsummated; The main reason was that the petitioner expected her parents to transfer in his name certain properties at Dahanu which was not done, the main difficulty in the matter being the involvement of such properties in litigation in the family of the respondent. However, it was quite clear that the petitioner was keen, as his mother was, on obtaining very expensive presents and more amounts, apart from acquiring these properties in his name. The respondent herself also did not like these demands made by the petitioner and his mother in particular. This was apart from the fact that no property did stand in her name as such, and it was not proper on the part of the husband to be insistent on that demand. It was for the reason that the properties which he expected to get were not being transferred to him i.e. the petitioner, she did not and would in no case call him impotent. All the same the truth was that the husband himself did not consummate the marriage in spite of the opportunity, privacy and also the efforts on the part of the respondent-wife herself to prepare and arouse him for consummation. As was only natural, she was herself keen that the marriage should be consummated. However, when even after the petitioner's examination was over in April 1987, even after their visit to Mahabaleshwar for honeymoon, the marriage remained unconsummated, she felt concerned.
It was only out of this concern, that she had then suggested to the husband that it would be advisable to consult a madical practitioner, it appears that one Dr. Gita Iyer was known to them. The respondent had consulted her;
and one her advice one Dr. Jatin Shah was also approached and he certified that the petitioner was quite normal. When in spite of this the petitioner did not himself consummate the marriage, it was only idle for him to allege that it was the respondent-wife who was cold or frigid or had total aversion for sexual intercource. The petitioner was in the circumstances, not entitled at all to the decree for annulment of the marriage as he has sought.
10. Nor would the petitioner be entitled to decree for dissolution of marrige on the ground of cruelty practised by her. There was none. If at all, it was cruelty which was heaped on her, in the first instance, by the husband - refusing to consummate the marriage and perform his conjugal duties which-it was only natural for her to expect, he ought to. Each of these 20 or more instances which constituted, according to the petitioner, acts of cruelty towards him, were denied as false, flimsy, contrived and imaginery.
11. She submitted that the petition therefore deserved to be dismissed.
12. After the petition was presented, the matter was first referred to the marriage counsellors. Their efforts however proved to be fruitless and a report was accordingly made. The matter came up before the learned Judge and as we find from his judgment, he himself endeavoured to reconcile the parties to a union and resumption of the marital tie. It was only when he found himself also unable to bring about any reconciliation between the parties, that the petition proceeded further.
13. During the pendency of the petition certain facts and circumstances and events of singificance which occurred need to be noted. As is not disputed, the respondent-wife left Bombay to return to the, parental home at Dahanu after lodging complaint against the petitioner and his mother at Mahim Police Station on 4.2.88. She had thereafter lived at Dahanu. On 18.4.90 however she made an application to the Family Court for permission to enter the matrimonial home i.e. the flat at Mahim where the petitioner-husband resides. The application was opposed by the petitioner-husband. An order directing the petitioner-husband and his family members not to obstruct or resist the respondent-wife in entering and living in the said flat came to be passed on 18.4.90. The respondent-wife alleged that on the strength of this order she had gone and sought access to the flat but was denied the same. The flat was kept locked and therefore she again made a complaint to the Court that the order dated 18-4.90 was being disobeyed by the petitioner. A notice to show cause was directed to be issued to the petitioner. It appears that in the meanwhile, the respondent managed to get a duplicate key for lock of the front door prepared and entered the flat;
in respect of which entry the petitioner made, a grievance. It further appears that the petitioner challenged the order dated 18.4.90 in the High Court and the order dated 18.4.90 was stayed by the High Court and therefore the grievance of the petitioner was that in spite of passing of this order as also communcation thereof to the respondent-wife, she had entered the flat. Therefore she needed to be directed to remove herself from thes aid flat. The Civil Application (No. 2339/90) in this behalf in Petitioner's Writ Petition No. 1806 of 1990 came to be disposed of during the summer vacation. Thereafter the petitioner made an application to the Court that his earlier application for mandatory injunction against the respondent-wife to prevent her from entering the flat at Mahim and thereby making a nuisance of herself and creating trouble for the family members of the petitioner was concerned needed to be expeditiously decided, as directed by the High Court during the hearing of Civil Application No. 2198 of 1990 and the order dated 9.8.1990. However, the High Court also directed that on the disposal of this application the respondent-wife would be permitted to occupy and live in the flat. The petitioner then filed an application dated 13.9.90 for an injunction against the respondent-wife contending that the respondent-wife had been herself preventing him and his family members from entering the flat. An ad-interim injunction restraining the respondent-wife was accordingly granted. Thereafter also the grievance of one spouse against the other appeared to have continued until the decision of the petition by the High Court.
14. In her written statement, the respondent-wife apart from challenging the claim of entitlement of either a decree for annulment of the marriage or decree for dissolution of the marriage, also made claim for (1) maintenance for herself; (2) the return of her stridhan property which according to her was being consistently refused to be handed over to her by the husband and the in-laws and (3) provision for adequate residence for her by the petitioner-husband.
15. On these pleadings Family Court framed issues. The first issue was whether the petitioner-husband proved that the marriage had not come to be consummated owing to the relative impotency of the respondent-wife i.e. on account of her coldness, frigidity or aversion for sexual intercourse with the husband. The second material issue was whether the petitioner proved that the respondent-wife had, since the solemnisation of the marriage treated him with cruelty. Both these issues were, upon consideration of the evidences adduced, answer in the negative and the petition came to be dismissed.
16. Hence this Appeal by the petitioner. The respondent-wife has filed Family Court Appeal No. 58 of 1992 contending that adequate maintenance as sought by her had not been granted though, of course, an order for interim maintenance of Rs. 1000/- had come to be made and had been finalized only at Rs. 1500/- per month, which according to the respondent-wife, having regard to the financial status and the affluence which the petitioner enjoys, was entirely inadequate. Her grievance is that the question of return of what constituted her stridhan property has also not been dealt with by the Family Court and thirdly that the question of her entitlement to an appropriate and separately enjoyable residence has also not come to be dealt with by the Family Court.
17. We have heard learned Counsel Shri Khandeparkar for the petitioner on the plea of entitlement to decree of annulment of the marriage, on the ground that the wife, since the date of marriage, was cold, frigid and therefore relatively impotent towards him; that has resulted in the non-consummation of marriage in spite of his efforts in that behalf. The evidence in this behalf would of course have to be found primarily confined to the versions of the respective petitioner-husband and respondent-wife though it will also be found that the testimony of the petitioner's parents as also the respondent's father and other witnesses does make a significant impact in the totality of the assessment of the evidence on this issue.
18. The petitioner's evidence is that after the marriage he and the respondent-wife lived together at Bordi for a period of about 3 months where in spste of his efforts, she refused to have sexual intercourse. Conistently with his allegations, he stated that on the first night after the marriage and even thereafter, the wife had just refused to give him marital pleasure, explaining that she was not interested in sexual intercourse and that she did not like him. The total apathy on her part to join him in consummation of the marriage, constituted a coldness and frigidity from which she suffered as he asserted and as is the argument which is advanced by the learned Counsel before us.
19. The first question which therefore arises is whether the coldness and frigidity on the part of the respondent-wife of which the petitioner-husband could be a matter to be determined and concluded solely on his own word when the respondent-wife's evidence is entirely to the contrary.
20. When it is suggested that the respondent-wife was cold and frigid, an inquiry which we made from the learned Counsel was whether in the circumstances any effort had been made for getting the wife herself medically examined to determine the fact of her coldness and frigidity; nothing has been suggested in this behalf and nothing has been brought out also in the evidence which came to be recorded at the trial. We are informed that no effort was made in this behalf to obtain medical opinion as to the mental frame of the respondent-wife, about her aversion to sex and the resultant non-consummation of the marriage. Whether or not, the respondent-wife has been, as alleged, cold and frigid, is according to us a matter to be considered from the time of their association after the betrothal. It is not in dispute that after the marriage was settled in February 1986, the petitioner and the respondent had been having meetings and used to be together several times. The petitioner has himself produced and relied upon the article published in the 'Savvy' issue of April 1991 in which some photographs of the association between the petitioner and the respondent-wife appeared indicating their togetherness and intimacy. Upon these it would be reasonable to infer the responsive attitude and eagerness of the respondent-wife for the ultimate-the consummation upon being married. We refer to this in the context of the respondent-wife's assertion that it was she who took the lead in encouraging the petitioner-husband to have sexual intercourse with her. Therefore in the absence of any other evidence, it would be defficult for us to accept the cold and frigid condition of her mind, apathetic to sexual intercourse and therefore resulting, at her instance, in the non-consummation of the marriage. That the petitioner-husband himself declined to have sexual intercourse with her is what is insisted upon by the respondent-wife, as can be seen from her deposition. Relevant therefore is the evidence in regard to any representation made by either of the parties to their relatives or close ones in this behalf. The mother of the petitioner, Smt. Bhanumati (PW-1) has stated that her son, the petitioner and the respondent-wife used to sleep together in the bed-room. If the disinclination on the part of the respondent-wife, her aversion to sex was the cause of non-consummation of the marriage, we would expect this fact to be voiced by the petitioner with someone at some point of time after the marriage. However, Bhanumati admits, contrary to the assertion of the petitioner-husband, that her son the petitioner had never complained to her that the respondent was refusing to have sex with him. Similarly, the father Jawaharlal Kakaria, when examined on this point, has stated in his very examination-in-chief that it was the respondent-wife who had opened out her mind to complain to him that the marriage had not till then come to be consummated at all. Of course, he hastened to say that he did not know at whose instance the marriage was not consummated. That even as saving grace, does in our opinion, provide no support to the petitioner-husband's that the non-consummation was the result of the respondent-wife's relative impotency. On the other hand, the assertion on the part of the respondent-wife that it was the petitioner-husband who was staying away from having sexual intercourse with her; finds considerable support from the zerox copies of the letters which she had written to her father, to her mother and sister-in-law. She deposed that she had later on personally also spoken to the father about the refusal on the part of the husband to have sexual intercourse with her and the father Sukhraj Bafna has corroborated her on this part. In her letter dated 30th May 1987 she informs her father that all that happens when see speaks to the husband about sexual intercourse is a retaliatory threat that if. she was to speak on the qusstion of sex, he would see that her life is destroyed. In a letter dt. 23.8.87 she informs her father that the husband plainly tells her that he has not approved of her and that he has married her only as a matter of anaffront to her. She mentions the fact of having met Dr. Gita lyar and informing her that the husband had no sexual intercourse with her.
Another letter which she had written in September 1987 to her sister-in-law also refers to the refusal on the part of the husband to have sexual intercoursr and in each of these letters, it needs to be noticed that the respondent-wife assured that she would still be persevering. She would keep encouraging the petitioner-husband and eventually succeed in having sexual intercourse and thus consummating the marriage.
21. During the cross-examination of the respondent-wife, suggestions were of course made to her that it was she who was refusing to consummate the marriage by having sexual intercourse with the husband, in spite of his efforts. She categorically denied that she was either cold or frigid. Learned Counsel Shri Khandeparkar submitted that in her examination-in-chief, the respondent-wife had actually given no indication of having had any physical claseness with the husband at any time. He pointed out to her statement that though she deposed that on the first night of the marriage as also on the next night, the petitioner-husband did not have sex with her, explaining that he did not have the desire and was indisposed, she also stated that the petitioner had stopped his relations with her after his examination in May 1987 and that he did not even have any foreplay at night. Shri Khandeparkar therefore submits that it is only during the course of cross-examination that she comes to admit that the petitioner-husband used to remove his clothes when sleeping with her on the same bed; that there used to be cuddling and kissing and that this also led to the erection of his male organ. She however asserted that in spite of this erection, the petitioner would not have any sexual intercourse with her.
22. The argument advanced is that if there was thus no doubt about the petitioner's manhood and the marriage yet remained unconsummated, then it can only be attributable to the respondent's frigidity, her aversion to sex. As we have noted the respondent's grievance is not about want of potency in her huband but his refusal to have sex with her. It is not inconceivable, though Shri Khandeparkar so argues, that the petitioner is able to perform the sexual act he yet desists from it for his own reasons; that he defies the urge inspite of the privacy and opportunity. We would therefore appropriately refer to the evidence of the respondent-wife's father that she had said to him that the petitioner had not been keeping physical relations with her and that this was for the reason that her property had been transferred to his name. Bansilal Kothari is a person of common acquaintance to both the parties. It was suggested to him that the respondent-wife's father had told him that the petitioner was an impotent person. However, what Bansilal asserts is a different communication to him by the respondent Sandhya's father that Sandhya had told him that the petitioner-husband was not having physical relations with her In the absence of any other evidence, the bare words of the petitioner-husband that the wife was cold or frigid towards him or displayed a total aversion for sexual intercourse or that this aversion resulted in the marriage remaining unconsummated, cannot therefore be accepted. The relative impotency of the wife as a cause for non-consummation of the marriage and the non-consummation as a ground for annulment of the marriage cannot therefore be found available to the petitioner-husband. The learned Judge of the Trial Court was right, in our opinion, in holding that the petitioner was not entitled to a decree for annulment.
23. Coming to the next ground, namely, of cruelty on the part of the respondent-wife and such a cruelty furnishing the basis for dissolution of the marriage by a decree for divorce, we would consider the ground of the wife's alleged charge of impotency of the husband but before that we wish to consider the several other allegations of facts which are made as the ground of cruelty towards him. The petitioner's grievance was that the respondent-wife indulged in criticising his friends whenever they visited him and in fact showed a complete reluctance in meeting and talking to them. The only support the petitioner-husband would appear to derive in this connection is the statement of his father Jawaharlal that the respondent did not like the husband's friends visiting their house. We note with some interest that in the list of witnesses dated 30.3.90 which the petitioner furnished to the Court before the commencement of trial, one Ravi Teneja has been cited as a friend. It is equally interesting to note that eventually this person was not called to the witness box and examined as a witness to prove that he had visited the petitione's house or had found him self unwelcome to the respondent. Whenever they used to go for a walk along the beach, the petitioner says that the respondent-wife used to keep quiet and aloof from him which was also an indication of her disinclination to be close to him and denied to him the pleasure of her company. We can only call this a sentimental allegation, not accompanied by any independent and reliable evidence. An allegation was also made in the petition that the respondent-wife objected to the visits of the petitioner's friends on the ground that they all indulged in taking non-vegetarian food when obviously she is a devout Jain and hence a vegetarian. In respect of this allegation also, there is no evidence. In fact we find that no reference to this allegation was made even in the examination-in-
chief of the petitioner. Casting aspersions in the event of the petitioner returning home late, is another allegation made against the respondent-wife which again has been denied. The reference impliedly is to the fact that the petitioner was spending time in having affairs with some other girls and was therefore returning home late. According to learned Counsel Shri Khandeparkar, the written statement of the respodent itself gives an indication in para 10 where she alleged that the petitioner had some affairs with some other girl and hence the petitioner did not like the respondent. Obviously this has a reference only to the period prior to the marriage and it is nowhere suggested that the petitioner was alleged to be returning home late, by reason of his indulgence in having such affairs with any other women or girls. The allegation of preventing the petitioner from going to the library is, according to us, a merely asinine one. A reference to a letter written by the respondent even prior to their marriage, on the 27th May 1986 would, in our opinion, be actually indicative of the degrer of concern which she had for his well being, progress and upliftment in life. This letter shows that even before they were married, she had started addressing him as a revered and dear husband. She refers to herself as a person who would be with him in every moment of life- of happiness as well grief and sorrow. In this letter she has very clearly mentioned that he should take care of his health as also his studies. We are not therefore satisfied the petitioner was in any way prevented by the respondent-wife or that she could even think of becoming an obstruction in the matter of his studies.
Similarly, allegations about her demand that he should give up drinking tea;
the grievance that she did not help in serving food at the dining table or that she called a tailor to deliver her newly purchased dress, after alterations, at late hour in the evening; that she indulged in obstructing him from going for the car driver's test; that she used to bang the telephone whenever he ranged up, that she used to stop talking to the family members and occasionally refused to take food also are instances of disagreements which even if accepted, in our opinion, are mere trivialities. These cannot constitute such grave conduct on her part as would render their living together difficult if not impossible.
Another allegation of the husband is that she used to smile at some pan shop keeper whose stall is on the way to the beach from their Mahim residence and that he found the pan shop keeper also responsive to her. The allegation is, in our opinion, merely expressive of the petitioner himself being an entirely distrustfull husband. The petitioner also complained about the scene created by her at the police station when the police hauled them, from the sea beach on suspicion of there being some affair. This would be entirely irrelevant. The petitioner himself admitted that this was an incident which took place prior to their marriage. The cruelty also consisted, according to the petitioner, in the respondent-wife's unpreparedness to live with him at Bombay and possibly her insistence that the husband leave Bombay and shift to some other place in the countryside for residence. Neither the petitioner's father nor his mother, when examined as witnesses, gave any indication of the respondent expressing her dissatisfaction on being confined to Bombay. As the learned Judge of the Trial Court has observed, the respondent was educated in the Podar College of Bombay and, passed her B.Com. examination from that college and obviously was accustomed to Bombay life. The respondent has herself denied that this was her desire and has also further asserted that she was always prepared to leave anywhere at any place where the petitioner-husband would like to settle down.
24. An attempt was made to prove her dislike for Bombay in the letter dated 27.5.1986. The specific expression used in this letter is that she completely lost her faith in Bombay. Using this sentence as evidence amounts to picking it up entirely out of context as the learned Judge has also considered It appears that this opinion was expressed by her in the context of a certain incident which had been described to her by the petitioner-husband while they used to be together. This is also an incident which is much prior to their marriage which was celebrated on 9th December 1986. All these instances, do not, at all in our opinion, constitute cruelty in the first instance, much less do they constitute instances of a conduct which is so reprehensible and so continuous as to render the possibility of a cohabitation entirely difficult and inconceivable any more for the husband.
25. The gravest of the charges amounting to such cruelty as would not be possible to put up with is of the impotency of the petitioner-husband. According to Shri Khandeparkar, the petitioner-husband has himself stated that the respondent called him au impotent person, that she had spoken of him as an impotent person with her sister Sharmila, that she had spoken of him as such to his parents also. She had given publicity to his being an impotent person, amongst her own relatives also. She had gone much further and demonstrated this vicious charge by giving an interview to the Savvy magazine in which, it is asserted, she called him an impotent person. It is to this aspect of the charge that we are called upon to attend and to uphold the same also There can be no doubt that calling one's husband an impotent person, lacking in manliness and unable to consummate the marriage, which is a most essential feature of a conjugal life would indeed be a serious allegation. The wild and baseless allegation of lack of manliness and impotency of the husband made without any evidence in support, would constitute cruelty as was held by a learned Single Judge of this Court in Smt. Nirmala Manohar Jagesha V. Manohar Shivram Jagesha, . The learned Judge was called upon to consider whether in view of the allegation of impotency and lack of manliness which had come to be made by the wife in the written statement which she had filed in the husband's petition for divorce, constituted a kind of cruelty. After considering a very large number of authorities including the full bench decision of this Court in , it was held that not merely alleging but repeating in the written statement that the husband was an impotent person, lacking in manliness or potency was an act of cruelty by the wife. The wife had stated that she felt and strongly apprehended that the husband was impotent and unable to consummate the marriage and that this 'want of manliness' in the husband necessarily conveyed, as a fact, his impotency She reasserted the same charge in a latter paragraph in the written statement and to the effect that the husband's manliness and potency was in dispute and therefore in order to shield the drawback on the part of the husband the petition had come to be preferred falsely; it required dismissal with cost What constituted cruelty was the question which therefore came to be considered by the learned Single Judge with reference to the decision in Dr. Keshaorao Krishnaji Londhe v. Mrs. Nisha Londhe, . The full Bench held:
"What is cruelty simpliciter ? It is not possible to comprehend the human conduct and behaviour for all time to come and to judge it in isolation A priori definition of cruelty is thus not possible and that explains the general legislative policy-with sole exception of the Dissolution of the Muslim Marriage Act-to avoid such definition and leave it to the Courts to interpret, analyse and define what would constitute cruelty in a given case depending upon many factors such as social status, background, customs, traditions, caste and community, upbringing, public opinion prevailing in the locality etc. Such cruelty that the petitioner cannot reasonably be expected to live with the respondent. The broad test, applied in interpreting Section 13(1)(ia) has to be whether the cruelty is of such type that the petitioner cannot reasonably be expected to live with the respondent or living together of the spouses had become incompatible."
The learned Judge with reference to this aspect observed that the allegation that the petitioner-husband being cold and an impotent person, lacking in manliness, though made only in the written statement, did constitute a charge so grave as to consider any further cohabitation with the wife impossible. Therefore the opinion expressed was that the husband would be entitled to a decree for divorce on the ground of cruelty which was result of the wife making wild, reckless and baseless allegation against him in the written statement.
26. In the present case, therefore, what has to be considered is whether in fact the petitioner was called an impotent person in the first instance, whether at any stage prior to the institution of the proceeding or thereafter. Our attention has been brought to focus mainly upon the interview which the respondent-wife gave to the Savvy magazine in April 1991. We have carefully gone through the entire article which is lengthy no doubt, exhaustive in details, commencing with the manner in which the respondent-wife was brought up in the parental home during her childhood, adolescence and till the time of her marriage, and how things proceeded after she was engaged, married and came to live with the petitioner-husband at Bombay. At no place, as she asserted in her deposition, do we find that the petitioner is stamped by her as an impotent person. The evidence has to be considered, according to us, in three distinct phases after the marriage. The first is the period immediately after the marriage upto 14.1.1987 when the petitioner and the respondent visited her parental home at Dahanu for celebrating Makar Sankranth festival. The second is the period after their return from Dahanu to Bombay and the petitioner-husband left for Bombay along with her, to be able to appear at the C.A. examination in April 1987. The third period is the period after the examinations were over and upto the time the respondent left home, under compulsion and only as a result of the illtreatment to which, as she asserted, she was subjected to.
27. After the marriage the petitioner was unable to perform the sexual acts, inspite of her eagerness as she says She explains that the petitioner told her that he did not have either the feeling for sexual intercourse and was suffering from some kind of a weakness. The respondent says that in the circumstances she was understanding enough and hoped that things would improve after sometime. However, even thereafter when the couple went to Dahanu on 14.1.1987 for Makar Sankranth; the sexual intercourse had not taken place and the marriage had remained unconsummated. This was also explained by the husband as not possible on account of his feeling of illness or weakness which also she tolerated.
28. At the time of Makar Sankranth festival, the respondent states that the petitioner-husband opened with her father the topic of transferring some properties in his name and which proposal her father was not m a position to accept. This is duly corroborated by her father, Sukhraj Bafna; he states that the property to which the petitioner referred were actually involved in some litigation in the family. It was this reply from the father which she says infuriated the petitioner-husband. The petitioner's return to Bordi was therefore in a state of disappointment and anger towards her for which reason the petitioner did not have sexual intercourse with her though it is also not in dispute that they had however kept sleeping together on the same bed in one room in the spacious bungalow at Bordi. At the advances made thereafter, during their stay at Bordi, the respondent says that the petitioner very clearly repelled all such endeavours, asking her not to consider sex any more. The petitioner as she says, even threatened her that if she were to speak about their sexual intimacy any more, he would in fact ruin her life. No doubt the petitioner her categorically stated that the respondent-wife used to allege that he was impotent and this allegation therefore caused mental torture and anguish to him. We have been referred to the evidence of the petitioner's parents and have also gone through it. Amongst the two it is Jawaharlal, father of the petitioner who makes a reference to sexual relations between the petitioner and the respondent after marriage. But that as we have observed is only to the extent that the respondent told him that the marriage was not consummated. Of Course it is at the stage of the cross-examination that the father comes out a little more defiantly to say that the respondent-wife had called Ajay an importent person.
29. Here it may be noted that Ajay himself does not say that the respondent had ever said so to him in the presence of Jawaharlal. An interest in the son's litigation is thus exhibited by the father when after having admitted that the respondent-wife had only spoken of the absence of sexual relations between them that he now says that she accused the husband of being an impotent person. On the premise of the obvious interest we do not find ourselves prepared to act on this part of Jawaharlal's cross-examination. We have already observed that apart from mentioning the name of the respondent's sister Sharmila, there is no other person to whom an allegation of the petitioner's impotency was ever made by her and Sharmila has not been examined as a witness. Then so far as the publication of the petitioner's impotency in the newspaper 'Jansahi' of Dahanu is concerned, Shri Khandeparkar concedes that the concerned newspaper has not even been produced. A reference is also made to the publication of certain pamphlets which were distributed in the co-operative society. The publication went under the signature of one Mrs. Asha Telang, presumably a social worker attached to some women's welfare organisation and concerned with the marital disputes and the consequences. That the respondent-wife was in any way responsible for the publication or the distribution of these pamphlets has nowhere been brought out. A perusal of these pamphlets will also show that there is no reference in the pamphlets, even remotely, to the impotency of the petitioner-husband. Upon consideration of what has been given out by way of an interview in the 'Savvy' magazine, upon the evidence of the petitioner-husband himself and his parents and then the refuting at the instance of the respondent-wife corroborated by her father, we are of the opinion that a charge of impotency as such never came to be made by the respondent-wife. When the respondent-wife herself very clearly states that after the marriage they used to sleep together and that there used to be kissing, cuddling and even a foreplay between them, there is no manner of doubt left that she did not actually charge the petitioner-husband with impotency or want of manliness in him. What we are led to conclude is that the absence of any sexual intercourse between the petitioner and the respondent was the result of a deliberate abstention on the part of the husband in consummating the marriage.
30. This abstinence appears to be wilful and in our opinion also traceable to a different cause altogether. The respondent's evidence is that the refusal to have an intercourse was on the part of the petitioner, in spite of her endeavours in that direction. It was because the petitioner-husband came to realise that the in-laws would not be giving him any property at Dahanu. It is therefore that as a matter of vicious retaliation that the petitioner would appear to have kept her deprived of the marital happiness which as a wife she was entitled to receive from the petitioner-husband. It therefore takes the case far far away from the allegation that the petitioner was styled by the respondent-
wife as being an impotent person at any time. Further, we also note that it is an undisputed fact that it was the suggestion-the petitioner-husband calls it a case of her insistence -from the respondent-wife, that since sexual intercourse between the two was not taking place, the petitioner-husband should get himself examined by some doctor. What is also important to note that the petitioner though claiming himself to be fully potent and capable of consummating the marriage, however, acceded to this suggestion-or insistence as he calls it, and was therefore medically examined. A wife who is herself cold or frigid, has an aversion for sexual intercourse, in our opinion, would not bother about asking the husband to go in for a medical examination unless she was keen on the sexual intercourse being performed. The desire to have sexual intercourse was therefore uppermost in the mind of the respondent-wife and it was with that object in view that she called upon the husband so that a medical examination would suggest ways and means of going further beyond tha step of erection of the male organ; i.e. sexual intercourse. Therefore, we are hot satisfied with the petitioner's case that the respondent-wife alleged that he was an impotent person.
31. It is also urged by learned Counsel Shri Khandeparkar that apart from the alleged accusation of the petitioner's impotency the respondent-wife made yet another allegation against him quite incongruently and inconsistently with the charge of impotency that he had been going about with girls and having affairs with them. However, for the purpose of the present case it should be noted that no allegation of his being involved with any other girl or woman after the marriage was performed, has been made out. The reference which one finds in the written statement is of a Sindhi girl by name Darshana and that was before the marriage was performed. The respondent-wife's deposition indicates that some utterances in regard to the friendship or intimacy with a girl of that name had perhaps escaped the petitioner's own mouth and it was therefore that the respondent-wife, apparently during some quarrels sometime, may have referred to his refusal to have sexual intercourse with her on account of his having some affair with a girl of that name, coupled with the fact that the petitioner had married with an eye only on the property to be obtained from his in-laws. Therefore, we find no substance in the allegation. At any rate we feel that the petitioner, has not amended his pleadings to incorporate this as a ground and instance of cruelty to him. The amendment of pleadings in that behalf, would have given the respondent-wife an opportunity of meeting the allegation that she had been guilty of cruelty to him by making a charge of his involvement with other girls. Shri Khandeparkar, learned Counsel for the petitioner, has also argued that involving the petitioner himself, his parents, brothers and even his old grand-father into criminal litigation is by itself a case of subjecting him to cruelty by mental torture and harassment. As we find from the record, the first ever complaint which came to be made by the respondent-wife was dated 4.2.88 at the Mahim Police Station, a zerox copy whereof has been produced on record by the petitioner himself. The complaint made there was about the harassment to which she was being subjected and about the fact that the husband was not treating her as a wife. The specific words are:
X X X X (emphasis provided) If properly construed these would mean, according to us, that the petitioner-husband had not been consummating the marriage and performing his conjugal obligations towards the respondent as his legally wedded wife. That is an aside but it is from this point of time onwards that the litigation in the form of complaints made by one spouse against the other or by one spouse against the relatives of the other spouse and vice-versa appear to have started. So far as the criminal complaints and proceedings which the respondent-wife has instituted are concerned, each of this has been styled by the petitioner-husband as being false. It needs to be noted that most of these proceedings as were started, were pending on the date of the filing of the present petition by the petitioner. The ones which have come to be instituted subsequently are also pending and it would not therefore be acceptable a contention that the respondent has involved the petitioner into false charges. On the other hand, as we appreciate that after the respondent-wife left for the parental home at Dahanu on 4.2.88. her return to the marital home, to which she would be entitled to return, was itself objected. It was therefore that during the pendency of the proceedings she was required to make an application to the Court for an injunction to restrain the husband and the other family members from preventing her from entering and occupying the flat at Mahim. An order was accordingly passed after taking into consideration the reply given by the petitioner-husband. The record shows that when in pursuance of the order or armed with such an order the respondent-wife went to the marital home for seeking access to it, she found the door shut and locked. She was therefore required to make a fresh application, reporting to the Court that the order dated 18.4.90 by which she was permitted to enter the flat came to be disobeyed. It is true that before this application was decided as such, the respondent-wife appears to have, on the bass of the right given to her by the order dated 18.4.90, got a duplicate key prepared to the flat and had thereafter gained access to the flat. This circumstance, unfortunately, only added to the tension between the parties and the trading of charges one way and the other. As such, the subsequent events do not, in our opinion, impinge upon the proof of cruelty which is required to be given by the petitioner-husband for entitlement to a divorce under Section 13(1). On the other hand, the Course of events as have taken place, ever since the marriage was celebrated on 9.12.86 and more particularly after the Makar Sankranth festival on 14.1.87, lead us to think that the respondent-wife had in fact been harassed only for the purpose of squeezing the properties from her parents. It was therefore actually the respondent-wife who in the totality would appear to have been subjected to cruelty by the petitioner-husband and the inlaws, the mother-in-law in particular. We wish to make note that in one of the letters which she has written to her parents, the respondent-wife does appear to have, at least at that point of time in the year 1987, described the father-in-law as a somewhat docile person and that he appeared to side with her to a certain extent since he was frustrated that the petitioner-son who had been repeatedly failing to qualify at the C.A. examination and was almost given up as a lost cause-education wise. Upon consideration of all these facts and circumstances, we hold that the conclusion of the learned Judge of the trial Court on the issue of cruelty entitling the petitioner-husband to a decree for dissolution of marriage was entirely right and that issue was correctly answered in the negative. The petitioner's alternative ground for claiming dissolution of the marriage on account of cruelty must be held as not available to him. In that view of the matter, we have no hesitation in holding that the present appeal of the petitioner-husband deserves to be dismissed.
32. Coming to the respondent-wife's Appeal No. 58 of 1992, the grievance which she has made is that several of her applications for the grant of a permanent alimony, for the return of her stridhan and lastly her entitlement to be provided with reasonable residential accommodation at Bombay have not come to be considered by the Court.
33. Out of these three prayers which she made, the prayer for maintenance has, of Course, been granted during the pendency of the petition. The interim maintenance allowance was fixed at Rs. 1000/- per month and at the conclusion of the petition, it was raised to Rs. 1500/- per month. The respondent-wife has contended that so far as the issue of stridhan was concerned, the Trial Court has obviously failed to apply its mind to the same. No issue in this behalf was framed. The provisions of Section 7 of the Family Courts Act give ample powers to the Family Court in that behalf. Therefore it was not only open but in view of the specific contentions advanced, the duty of the Trial Court, to deal with this aspect of the controversy between the parties. The respondent-wife's gold ornaments and other presents together worth about Rs. 4,00,000/- which as she claimed, are in the matrimonial home and which she demanded to be placed in her own custody, were refused to be so delivered.
She asserts that the petitioner and the father and parents in-law in particular did not want to part with them though this constituted her stridhan property.
34. What exactly was the extent these items of properties which constituted her stridhan, does not appear to have been a question which was dealt with by the trial Court.
35. Our perusal of the record shows that the respondent-wife made several applications in this behalf and the stand which the petitioner-husband appears to have taken, varies from denial of any ornaments and presents having been given to her and brought by her to the marital home to raising the contention that everything that she might claim as being her stridhan property had been carried away by her with her when she left the marital home on 5.2.88 or thereabout.
36. We do think that the question as to what was her stridhan property which was kept in the marital home and her entitlement to the custody thereof was a matter of concern between the parties which necessarily required to be resolved by adjudication. The respondent had also filed a list of the ornaments, presents and cash which was there in the marital home.
37. The discussion in the judgment, as we find, has remained confined only to the question of the maintenance. The learned Judge has dealt with this aspect in paragraph 51 of his judgment and observed that the respondent-wife who was being paid Rs. 1000/- per month by way of interim alimony claimed an amount of Rs. 10,000/- per month by way of maintenance and that this prayer was resisted. He has also observed that the petitioner had contended that the respondent had her own source of income and was therefore not entitled to claim alimony, It was also observed by the learned Judge that the respondent appears to have immovable property with a godown structure but there was nothing on the record to show whether she was getting any income out of that godown property. The respondent was not admittedly, alleged to be earning by herself.
38 We also refer to the fact of admission made by the petitioner that he was earning Rs. 40,000/- annually only by way of interest on the savings, deposits etc., and an allowance of Rs. 750/- per month from his father for the assistance rendered in the firm of the Chartered Accountant. We however find that on record the respondent-wife has produced a large number of documents including a list at exhibit 40 which mentions the several shares and debentures which the petitioner-husband holds in other firms etc. As per exhibit 25 she also filed a list of properties in which as a member of the joint Hindu family he has an interest and share. All these documents do not appear to us to have been duly considered before dealing with the question of appropriate or adequate amount of maintenance which the respondent-wife would in the circumstances be entitled to. We also find, as stated above, that the question of what constituted and what is the extent of the stridhan of the respondent-wife has not at all been considered by the trial Court for the purpose of granting relief as prayed for by her.
39. In that view of the matter, so far as the present appeal of the respondent-wife is concerned, we are of the opinion that the matter would necessarily require to be gone into in detail, by giving to the parties an opportunity to establish their respective contentions in this behalg i.e., on the question of stridhan as also the amount of maintenance to be granted to the respondent-wife.
40. So far as the respondent-wife's prayer for adequate and reasonable residential accommodation is concerned, she has been permitted to occupy one room in the flat at Mahim. The petitioner-husband, after an order in her favour, made an application for mandatory injunction to direct the respondent-
wife to remove herself from the said Flat. That application, it is not disputed, was rejected by the Trial Court. We are also aware that at the time of hearing of the application of the respondent-wife for grant of residential accommodation, the matter was heard, some proposal for providing her with an alternative accommodation was to be put up by the petitioner-husband. This was not however finally decided, though it requires to be. In the meanwhile, the order permitting the respondent-wife to continue the occupation of one room in the said flat together with liberty to use the common bathroom and privy will have to continue. We therefore allow the respondent-wife's appeal and pass the following order :
41. The respondent-wife shall be entitled to continue to occupy and reside in the one room portion of the flat at Mahim, together with the use of the common bathroom and privy until such time as the petitioner-husband provides her with an alternative, suitable, adequate and appropriate accommodation for her residence. The parties would be at liberty accordingly to move the Family Court in this behalf for appropriate orders.
42. So far as the prayer of the respondent-wife for entitlement to the return and custody of her stridhan property is concerned, the matter is remanded to the Trial Court for a full and complete inquiry into the matter, giving to the parties the necessary opportunity to adduce evidence in that behalf and then decide the matter in accordance with law.
43. The matter stands further remanded to the Trial Court for determination of the question of appropriate and adequate amount of monthly maintenance payable to the respondent-wife, having regard, to the relevant factors. We further direct that until such time as the issue of appropriate and adequate maintenance is not determined by the Trial Court, the respondent-wife shall continue to be paid a monthly maintenance allowance of Rs. 1500/- per month as ordered by the Trial Court.
44. In the result, the Family Court Appeal No. 37 of 1992 of the petitioner-husband is hereby dismissed with costs.
45. The Family Court Appeal No. 58 of 1992 of the respondent-wife is partly allowed as aforesaid, with no order as to costs.
46. We also feel that in the circumstances of the case, the Family Court will permit the parties to have assistance of a legal practitioner if parties so desire.
47. In view of the final orders passed in Family Court Appeal Nos. 37 of 1992 and 58 of 1992, Civil Application No. 1554 of 1992 and 1822 of 1992 in Family Court Appeal No. 37 of 1992 are disposed of.