AI Structured Summary
Not yet generated for this judgment
Judgment
M.L. Dudhat, J.—This First Appeal is preferred by the Appellant-wife against the judgment and decree dated 20th December, 1994 passed by the Principal Judge, Family Court, Bombay in Matrimonial Petition No. A-272 of 1993. By the aforesaid judgment and decree the Family Court dismissed the Petition filed by the Appellant-wife on the ground of cruelty u/s 13(1)(ia) of the Hindu Marriage Act, 1955 for divorce. Few facts which are material to dispose of this appeal are as under :
On 9th June 1990 the Appellant and Respondent got married by Hindu Marriage Rites in Bombay. On 11th June, 1990 i.e. two days after the marriage, Appellant and Respondent left for Goa on their honey-moon, but unfortunately returned back within four days. It is the case of the Appellant wife that, the marriage was not consummated more particularly because of the behaviour of the Respondent-husband insulting the Appellant wife. Thereafter, Petitioner left for Baroda for pursuing her further studies. In November, 1991 Petitioner returned to Bombay from Baroda after finishing her M.D. examination. Thereafter, Petitioner again returned to Baroda for continuing her term in S.S.G. College at Baroda. It is the case of the Petitioner that, during the honey-moon and even thereafter till the date of filing the Petition there was no consummation of the marriage. Respondent''s father was desirous of starting hospital and therefore sought financial support from Petitioner''s father. Petitioner therefore liquidated her shares which were in her name and acquired a Nursing Home in the joint name of Petitioner and Respondent. It is an admitted position that, for starting the said nursing home out of the total capital of Rs. 12 lakhs, Rs. 4 lakhs were given by the father of Respondent and Rs. 8 lakhs were given by the father of the Petitioner. The partnership deed was entered into between the parties and loan from the bank was also procured by arranging the collateral securities by the father of the Appellant. From November 1991, Petitioner started residing with her in-laws and it is the case of the Petitioner that during her stay in her matrimonial house, she was harassed by the Respondent, who was insisting to transfer the hospital, which was in joint name, on his exclusive name and further. Respondent also wanted the collateral securities of the shares held by the Petitioner in her name to be transferred in Respondent''s name. By the end of November, 1991 both Petitioner and Respondent shifted from Andheri to the hospital at Bhayander for making themselves available to the patients all the time. Respondent, around December 1991/January 1992, wanted Petitioner not to stay in the Bhayander Hospital, but to stay at her matrimonial house at Andheri. Respondent further stopped working completely in the Bhayander Hospital. Petitioner contended not only that the Respondent failed to assist her in Bhayander Hospital started in the partnership, but further started disturbing her practice at the hospital. Respondent used to abuse her openly and since March 1992, Respondent deserted the Petitioner. Because of this total disharmony in the matrimonial relation between the Petitioner and the Respondent, Petitioner was unable to repay the loan and, therefore, the said hospital was surrendered to the bank and bank ultimately auctioned the said hospital. On these aforesaid facts, the Petitioner-wife filed the present Matrimonial Petition for the divorce mainly on the ground of cruelty and also prayed for maintenance of Rs. 5,000/-per month.
As against this. Respondent husband filed Written Statement wherein, he denied that there was no consummation of marriage and according to him, marriage was consummated at Goa. It is the case of the Respondent-husband that, after return from honey-moon, Petitioner wife refused to permit Respondent to have matrimonial relation with her. He also informed his father-in-law about the behaviour of the Petitioner-wife and father of Petitioner-wife also called upon Petitioner to discharge her conjugal obligations. However, after shifting to Bhayander, Petitioner-wife abruptly stopped having her matrimonial relations with the Respondent. In the Written Statement, Respondent further contended that Petitioner-wife used to insult him in front of nursing home staff with the result, the nursing home staff also developed an attitude of defiance and contempt towards the Respondent. Due to this it was impossible for the Respondent-husband to carry out any function at the nursing home. Respondent denied that at any point of time, he demanded dowry from the Petitioner-wife and that he ill-treated her. Respondent contended that, in fact. Petitioner-wife is taking advantage of her own wrong by firstly refusing matrimonial relations to the Respondent and thereafter, by her misconduct which compelled Respondent to close his medical practice at Bhayander. On the aforesaid circumstances, Respondent-husband prayed for the dismissal of the Petition for divorce filed by the Petitioner-wife.
In the Trial, Petitioner-wife led evidence of herself and her father. On the other hand. Respondent-husband failed to enter in the witness box. Though various allegations were made in the matrimonial Petition, the Petitioner was contesting only on one ground i.e. as to, whether Respondent-husband treated his wife with cruelty as alleged by her and whether she is entitled for the divorce u/s 13(1)(ia) of Hindu Marriage Act, 1955. The Trial Court, after allowing parties to lead the evidence and after hearing both sides, held mat Petitioner-wife failed to prove that Respondent-husband was treating her with cruelty and, therefore, dismissed the Petition by his judgment and decree dated 20th December, 1994.
In this Appeal before us, both sides vehemently argued on the issue as to whether Petitioner-wife proved cruelty on the part of the Respondent-husband. Miss Paranjape, the learned Counsel appearing on behalf of the Petitioner-wife, contended that in fact there is ample evidence on record to show that Petitioner-wife received cruel treatment at the behest of the Respondent-husband. According to her, the Trial Court failed to scan the evidence properly and most of the conclusions arrived at by the Trial Court are on the basis of conjectures and surmises. She contended that the fact that after return from honey-moon for establishing the hospital at Bhayander, out of Rs. 12 lakhs capital. Appellant''s father supplied Rs. 8 lakhs capital shows that the Appellant in fact wanted to maintain the marriage and matrimonial harmony. She further contended that in fact after completion of her post-graduation qualification in Gynaecology at Baroda, she returned to matrimonial house at Andheri and stayed there and thereafter, at the behest of Respondent-husband she also shifted to Bhayander Hospital. This, according to the learned Counsel Miss. Paranjape, clearly shows that Appellant-wife was interested in matrimonial harmony. However, according to her, there was no co-operation from the Respondent-husband and in fact the Respondent-husband failed to consummate the marriage. She further contended that Respondent-husband was harassing the Appellant-wife because he wanted the hospital at Bhayander in his own name and that the Appellant-wife should transfer her shares in his own name. She further pointed out by referring to Appellant''s deposition in the Court as to, how Respondent-husband ill-treated her in conducting the hospital due to which the Petitioner-wife was required to call outside experts to help her. She further contended that the fact that marriage hardly continued for three and half months itself shows that the marriage between the Petitioner-wife and Respondent-husband has broken irretrievably and not on minor particulars. She further stoutly contended that the fact that the Respondent has not entered in the witness box, an ad verse inference ought to have been drawn against the Respondent-husband. Therefore, relying on the observations of the Supreme Court, she contended that this is a fit case for granting divorce.
Mr. Mirajkar, the learned Counsel appearing on behalf of the Respondent husband, contended that here in this case, evidence as led by the Petitioner-wife is self-contradictory in nature and, therefore, it is very difficult to rely on her statements in the deposition. According to him, if the testimony of Petitioner-wife is untrustworthy, there was no need on the part of the Respondent-husband to step into the witness box, because since burden of proving that she was treated cruelly was solely on Petitioner and if she fails to discharge that burden, there was no question of drawing any adverse inference against the Respondent-husband for failure on his part to enter in the witness box. He further contended that the allegations as regards demands of dowry are also figment of Petitioner''s imagination. He contended from the record it is clear that, after the relations were strained between Petitioner and Respondent, Respondent returned all Petitioner''s Streedhan on his own. That clearly shows that the Respondent-husband was not after money. Mr. Mirajkar, therefore, contended that the findings arrived at by the Trial Court, after going through the evidence need not be disturbed.
Heard both sides. We have also gone through all the judgments cited by either side supporting their respective contentions. But still, according to our opinion, the Trial Court''s approach to this case more particularly, in the terms of facts and circumstances of this case was not correct. The Trial Court was wrong in coming to the conclusion that merely because Petitioner-wife has not made police complaint or filed criminal case, the allegations made by Petitioner-wife are not trustworthy. According to our opinion, the marriage between Petitioner and Respondent has reached the dead end immediately within 3Vi months from their marriage. Admittedly, marriage took place on 9th June, 1990 and 3% months thereafter parties are not staying together. On the point of consummation of marriage, it is the contention of the Petitioner-wife that, due to the fault on me part of the Respondent-husband marriage was not consummated. On the other hand, it is the case of the Respondent-husband that, marriage was consummated in Goa, but/however, because of indifferent attitude of Petitioner-wife there was no further matrimonial relationship between Petitioner and Respondent. According to our opinion, whether the marriage in fact was consummated or not is not an important and relevant aspect because from that point of view there was no issue framed. Apart from that, from the evidence on record we are of the opinion that behaviour of Petitioner-wife and behaviour of Respondent-husband is such that their Inter action inter se is mutually incompatible. The fact that couple was required to shorten their honey-moon within 4 days that thereafter, after returning from honey-moon, at no point of time there was affinity or love between the husband and wife and from the contentions of the husband as well as from the contentions of the wife, it is crystal clear that, after their marriage on 9.6.1990 at no point of time their relationship was happy, cordial and both parties were rather indifferent to their duties to establish matrimonial harmony. At this stage, it is very difficult to point out the blame on one party or the other. But in this case, we can safely say that the relationship between the Petitioner and the Respondent-husband was that they were mutually incompatible to live under the same roof as a husband and wife. In the marriage there might be few fights and recurrings, but there must be some period where both parties enjoy the harmony and mutual companionship. After going through the evidence of the Petitioner-wife and after going through the cross-examination made by the Respondent-husband and his Written Statement, there is not an iota of evidence to show that at any point of time both the parties shared conscientious company of each other as husband and wife. It appears that though both the parties are highly educated and professionals unfortunately, from the beginning till end the marriage never commenced forget blooming of matrimonial relationship. If this is the state of affairs of mutual relationship of husband and wife, this by itself is such to cause mental agonies to both the parties irrespective of the fact as to whether the fault lies on one party or the other. Continuing this relationship any further will virtually amount to destroying the life of both the competent individuals. At present, wife is settled in America and her age is 31 years. Respondent-husband has also acquired post-graduate qualification in Pediatrics and he is about 36 years of age. In view of their irretrievable relationship, if the marriage is dissolved both the parties will be free to enjoy the life independent of each other. In view of this, according to our opinion, in the peculiar facts and circumstances of the present case, the mutual incompatibility in the nature of Petitioner and Respondent has resulted in cruelty to either side and their relationship also as husband and wife has come to an end practically from the commencement of their marriage irretrievably and, therefore. Petitioner-wife is entitled to get divorce u/s 13(1)(ia) of the Hindu Marriage Act, 1955. We may further observe that the aforesaid conclusion of ours is also supported by the observations made by the Supreme Court in (1) Chanderkala Trivedi (Smt) Vs. Dr. S.P. Trivedi, , (2) V. Bhagat Vs. Mrs. D. Bhagat, and (3) Romesh Chander Vs. Smt. Savitri, .
While hearing the arguments of Miss Paranjape, the learned Counsel appearing on behalf of the Petitioner, she made oral application for amendment of the plaint in peculiar circumstances. She contended that the nursing home was being conducted on the basis of partnership dated 27th March, 1990wherein, Petitioner and Respondent were partners. Admittedly, in the partnership, father of the Petitioner-wife advanced an amount of Rs. 8 Lakhs and father of Respondent-husband advanced an amount of Rs. 4 lakhs. Parties also obtained loan from the N.K.G.S. Cooperative Bank. Since the parties failed to make payment of the loan, the said bank put the property to auction. After deducting the loan and interest advanced by the bank, an amount of Rs. 7,26,155/-is lying in the bank in Account No. 5A/136 dated 30th September, 1996. Since according to the Petitioner, the nursing home started after the marriage wherein admittedly, Rs, 8 lakhs and Rs. 4 lakhs were advanced respectively by the father of the Petitioner and father of the Respondent, u/s 27 of the Hindu Marriage Act, 1955, the amount lying in the said bank may be allowed to be withdrawn by respective parties in the ratio of the capital advanced by respective parties Rs. 4,48,103.34 to the Petitioner and Rs. 2,42,051.66 to the Respondent-husband. We have allowed the aforesaid amendment in order to avoid the multiplicity of proceedings. Since the partnership has come to an end and dissolved and since the amount is lying in the bank idle, according to our opinion, u/s 27 of the Hindu Marriage Act, 1955, both parties must be allowed to withdraw the amount lying in the bank in the same proportion in which they have advanced amount towards the capital. In view of this, we allow the aforesaid prayer after hearing arguments in this behalf from both sides.
In view of this, this Appeal is allowed. The judgment and decree passed by the Principal Judge, Family Court, Bombay dated 20th December, 1994, in Petition No. A-272 of 1993 is set aside. The Petition filed by the Petitioner-wife is allowed and it is declared that the marriage between the Petitioner and Respondent stands dissolved u/s 13(1)(ia) of the Hindu Marriage Act, 1955. It is further declared that the Petitioner is entitled to a sum of Rs. 4/84,103.34 and Respondent is entitled to a sum of Rs. 2,42,051.66 and both Petitioner and Respondent are allowed to withdraw the said fixed deposit receipt in respect of the Account No. 5A/136 opened with the N.K.G.S. Cooperative Bank Ltd. We may further make it clear that the parties will also be entitled to withdraw the interest accrued on the said fixed deposit to the same proportion respectively as mentioned above.
There shall be no order as to costs.