Shweta vs Rajesh

V.A. Naik, J—By this family court appeal, the appellant-wife challenges the judgment of Family Court, Nagpur, dated 21/11/2014, allowing the Hindu marriage petition filed by the respondent-husband and dissolving the marriage solemnized between the parties on 07/12/2008 by a decree of divorce.

The respondent-husband had filed Hindu marriage petition against the appellant-wife for the dissolution of marriage by a decree of divorce. The marriage between the parties was solemnized on 07/12/2008 at Nagpur according to Hindu rites and customs. The wife started residing in the joint family of the husband after the marriage. According to the husband, the wife belongs to a middle class family and was looked after only by her mother and her brother, who runs a pan shop. It is pleaded by the husband in the petition that within fifteen days from the marriage, the wife started behaving badly with the husband and his family members by showing her true colours. It is pleaded that in the month of June, 2009 when the wife was pregnant, she left the matrimonial house without informing anybody at 9.00 p.m. and went to reside in her mother''s house. It is pleaded that when the husband contacted the mother of the wife on telephone, the mother stated that her daughter is desirous of seeking a divorce and dissolving the marriage. It is pleaded that on 10/09/2009 the wife gave birth to a female child and the wife and her family members restrained the husband and his family members from meeting the baby girl. It is pleaded that on 13/07/2010 the wife came to the matrimonial home with a baby girl of ten months along with her mother and immediately left the house on 05/08/2010 at about 8.00 p.m. without informing anybody in the matrimonial house. It is pleaded that the wife left the small daughter of ten months in the matrimonial home and left to her parental home without the baby girl. It is pleaded that on 29/01/2011 the wife and her mother came to the matrimonial home and assured the husband and his family members that the wife has realised her mistake and hence, she should be accepted in the matrimonial house. It is pleaded that the crocodile tears of the wife persuaded the husband and his family members to accept the wife in the matrimonial house. It is pleaded that on 08/02/2011 the wife again left the matrimonial home by leaving the daughter, who was barely one and half years of age. It is pleaded that the acts on the pat of the wife tantamount to cruelty and the husband is entitled to a decree of divorce.

The wife filed the written statement and denied the case of the husband. It was admitted by the wife that she belonged to a poor family and was being looked after by her mother, as her father had expired long back. It was denied that within fifteen days of the marriage, the wife started behaving badly with the husband and his family members and abused them. It was denied that the wife frequently left the matrimonial home and went to reside in the parental home. It is denied that the wife was suffering from mental disease and was being administered medicines for the treatment. The wife admitted that in the month of July, 2010 the wife and the daughter went to the matrimonial house. It was denied that the husband tried to make efforts for changing the behaviour of the wife. It is pleaded that the wife was thrown out of the house of the husband and was not allowed to reside with the husband and his family members and hence, they were bound to take care of her daughter. The wife, however, did not dispute that the daughter was living with her father and his relatives in the matrimonial home and was admitted in the school. The wife sought for the dismissal of the Hindu marriage petition.

On the aforesaid pleadings of the parties, the Family Court framed the issues. The husband examined himself and closed the evidence on his side. The wife examined herself and also examined her uncle by name Pravin. The husband filed certain chits-letters written by the wife on record to prove that the wife was treating the husband and his family members with cruelty and had agreed to change her ways. On an appreciation of the evidence on record, the Family Court, by the judgment, dated 21/11/2014, allowed the Hindu marriage petition and dissolved the marriage solemnized between the parties on 07/12/2008. The wife has challenged the judgment of the Family Court by the instant appeal.

Shri Joharapurkar, the learned counsel for the wife, submitted that the Family Court was not justified in allowing the petition filed by the husband for a decree of divorce. It is submitted that the Family Court was not justified in holding that the wife left the matrimonial home without any rhyme or reason every now and then. It is submitted that the wife had not left the matrimonial home when the baby girl was ten months and one and half years of age but she was compelled to leave the house. It is stated that the wife was thrown out of the matrimonial home and since the father-in-law of the wife was in Police Department, the wife could not make any grievance or complaint against the husband and his family members. It is submitted that the two chits produced by the husband and marked as Exhibits-24 and 26 clearly show that by taking advantage of the position of the father-in-law, the chits were forcibly got written from the wife. The learned counsel took this Court through the chits at Exhibits-24 and 26 to substantiate his submission that no wife would ever write such chits-letters unless they are forcefully secured from her. It is submitted that the Family Court has granted a decree of divorce solely on the ground that the wife had left the company of the husband without informing the husband on more than a couple of occasions and the said conduct of the wife amounted to cruelty. It is stated that the wife always desired to reside in the matrimonial home, but for one reason or the other, the husband and his family members did not permit the wife to reside in the matrimonial home. It is submitted that the admissions of the husband in his cross-examination clearly falsify his case that the wife was not desirous of joining the company of the husband in the matrimonial home after she delivered a baby girl. It is submitted that in the absence of any pleadings by the husband, the Family Court erroneously accepted the evidence of the husband that the mother of the wife had called the husband in June, 2009 on telephone and had informed him that the wife desired to dissolve the marriage between the parties. It is submitted that the Family Court ought to have held on the basis of the provisions of Section 23 of the Hindu Marriage Act that the husband was trying to take advantage of his own wrong of forcibly getting the chits-letters written from the wife and hence, was not entitled to a decree of divorce.

Shri Chopde, the learned counsel for the husband, supported the judgment of the Family Court. It is submitted that the Family Court has rightly held on a proper appreciation of evidence on record that the wife was in the habit of leaving the matrimonial home and going to her parental house. It is submitted that the Family Court has held that the wife had left the matrimonial home on a couple of occasions after leaving the baby girl of ten months and one and half years of age in the matrimonial home without informing anybody. It is stated that the Family Court has rightly held that the said act on the part of the wife caused mental cruelty to the husband and mental and physical cruelty to the child. It is submitted that the Family Court has rightly come to the conclusion that the husband was placed in an embarrassing position, as the wife had left the matrimonial home without taking her daughter, who was barely ten months and one and half years of age. It is submitted that the Family Court has rightly discarded the evidence of the wife in her examination-in-chief in regard to her case that she was thrown out of the house by the husband, as she had not pleaded so in her written statement. It is submitted that the case tried to be made out by the wife that she was scared of the husband and her father-in-law, as the father-in-law was a Police Inspector cannot be considered either by the Family Court or by this Court, as the said fact is not pleaded by the wife in her written statement. It is stated that the husband has successfully proved that the wife had left the company of the husband on more than a couple of occasions without informing anybody in the matrimonial home and the said act on the part of the wife resulted in mental cruelty to the husband. The learned counsel sought for the dismissal of the family court appeal.

On hearing the learned counsel for the parties and on a perusal of the original record and proceedings, it appears that the following points arise for determination in this family court appeal.

(i) Whether the husband has been successful in proving that the wife had treated him with cruelty?

(ii) Whether the husband is entitled to a decree of divorce on the ground of cruelty?

(iii) What order?

To answer the aforesaid points for determination, it would be necessary to consider the pleadings of the parties and the evidence tendered by them. We have elaborately narrated the facts pleaded by the husband in the Hindu marriage petition. Since the husband had examined himself and had reiterated the facts pleaded by him in his Hindu marriage petition, it would be necessary to only consider the cross-examination of the husband to determine whether the case of the husband, as sought to be made out in the examination-in-chief was proved. The husband admitted in his cross-examination that his father was working as a Police Inspector and he is the only son to his father. The husband admitted that after the wife went to her parental home for delivery, the expenses of the delivery were borne by the mother of the wife. Though the husband stated in his cross-examination that his wife stayed in the parental home for about ten months after delivery, he admitted in his cross-examination that the mother of the wife had sent a message to the husband after two months of the delivery to take the wife to the matrimonial home. Though the husband had stated in his cross-examination that he had gone to the parental house of the wife to meet her after the delivery, he was unable to tell how many times he visited her. The husband admitted that he had not issued any notice to the wife asking her to return to the matrimonial home during the four years. The husband, however, denied the suggestion that he had forcibly got the chits-letters (Exhibits-24 and 26) written and signed from the wife. The husband denied the suggestion that he had compelled the wife to write the contents of the chits at Exhibits-24 and 26. The husband admitted that his daughter should get the love of her parents. The husband denied the suggestion that he did not try to ensure a meeting between the wife and his daughter.

The wife has stated in her examination-in-chief that the wife was cooking for the entire family, washing utensils and doing the other household work right from the inception of the marriage. It is stated that the wife was dropped to her parental home by the husband on more than a couple of occasions and was also assaulted. It is stated that the wife was always taunted because she belonged to a poor family and her mother was residing in a small hut. It is stated by the wife in the evidence that the wife was driven out of the matrimonial home when the child was ten months and one and half years of age and the wife was not permitted to meet the child. It is stated that the mother and the unmarried sister of the husband treated the wife with cruelty, but the wife did not dare to make a complaint against them in the Police Station, as the father of the husband was in the Police Department. The evidence of the wife in her examination-in-chief was rightly not considered by the Family Court in its entirety, as the wife had not pleaded the facts mentioned by her in her examination-in-chief in the written statement. In our view, the entire examination-in-chief ought not have been discarded. The wife had clearly stated in paragraph-9 of her written statement that she was thrown out of the matrimonial home and that she had never left the company of the husband or the matrimonial home, on her own. The case of the wife that she had never left the matrimonial home on her own without informing the family members is mentioned in the written statement. Also, it is mentioned in the written statement that the wife was thrown out of the matrimonial home. In view of the aforesaid two pleadings in the written statement, it was incumbent on the part of the Family Court to have been appreciated a part of the evidence of the wife in the examination-in-chief. However, the Family Court discarded the evidence of the wife in her examination-in-chief in its entirety. The Family Court also did not consider a relevant suggestion given to the wife from the side of the husband in her cross-examination. A suggestion was given to the wife in her cross-examination that she had left the matrimonial house on 05/08/2010 by leaving her daughter behind and the wife had specifically denied the suggestion. There was no reason for the husband to give a suggestion to the wife that she had left the matrimonial home on 05/08/2010 by leaving her daughter behind. Even if the written statement of the wife is not so happily worded, the denial by the wife that she had left the house of the husband by leaving her daughter behind on 05/08/2010 weakens the case of the husband. The Family Court has not considered the said denial of the wife in her cross-examination. Also, the Family Court has not considered the evidence of the wife in her cross-examination that she had expressed her willingness to meet the daughter during counselling and mediation, but the husband had declined permission for such meeting. The wife stated in the cross-examination that the chits at Exhibits-24 and 26 were obtained by her husband from her under pressure, however, she had not made a complaint against the husband. The wife denied the suggestion that she did not file a complaint, as her signature was not obtained on the chits at Exhibits-24 and 26 under pressure. Though the wife admitted in her cross-examination that she had signed Exhibits-24 and 26, it is categorically stated by her in her cross-examination that Exhibits-24 and 26 were obtained by her husband from her under pressure. At this juncture, it would be necessary to consider the contents of Exhibits-24 and 26. In Exhibit-24, the wife has written that she, Shweta Yadav has compromised the matter with mother-in-law Chanda Yadav on 13/07/2010. It is written in the chit that she had fought with her husband within six months of the marriage and had started residing with her mother. It is written in Exhibit-24 that the wife had started residing with her mother from 06/07/2010 on her volition. She writes in the said document that she is not able to cook and she would learn cooking. She writes that her mother-in-law and her sister-in-law are cooking for all and she undertakes to get up early in the matrimonial home and act in such a way that her in-laws would be pleased. She writes in the chit at Exhibit-24 that she would not fight with her mother-in-law and would try to make her happy. The wife writes that she will not falsely blame her mother-in-law and would also not try to commit suicide. It is lastly written in the said communication that if something happens to the life and limb of the wife, she herself would be responsible and not her mother-in-law. We are shocked and surprised that the document at Exhibit-24 was not looked at by the Family Court as a document that was got written from the wife under tremendous pressure and force by the husband and his family members. No wife would ever write such a chit and give it to her husband and her in-laws. There is no reason for a wife to write that her mother-in-law should not be blamed, unless a mother-in-law or a husband forces her to write that. The contents of chit at Exhibit-26 are more interesting. It is written by the wife in the said chit that the wife will not falsely disrepute her mother-in-law. It is written in the said chit that the wife has not looked after her husband during his illness. It is written that the wife would always listen to the husband and his family members and would not back answer them. It is written by the wife that her father-in-law had admonished her for changing her behaviour and that she had wrongly back answered him. She has further written that from now onwards she would get up in the morning and do all the household work. She has written that she will never go to her parental home and if anything happens to her life and limb, she herself would be responsible. Why would a wife write such things on a page of a notebook and sign it and give it to the husband and his family members. Such a document-chit could only be executed by exercising force and undue influence. We cannot forget that the father of the husband was a Police Inspector and the said fact is admitted by the husband in his cross-examination. Even if, we discard some of the portions of the evidence of the wife in her examination-in-chief, we are clearly of the view that the husband was not ready to reside with the wife and was trying to make out a false case that the wife was in the habit of leaving the matrimonial home every now and then without informing anybody in the family. We find from the cross-examination of the husband that the mother-in-law of the husband, i.e. the mother of the wife had asked the husband within a period of two months from the delivery of the baby girl that the husband should come to the wife''s parental home and take the wife to the matrimonial home. Despite this admission, the husband has falsely tried to impress upon the Family Court that the wife did not desire to stay in the matrimonial home and had left the matrimonial home without rhyme or reason and without informing either the husband or her in-laws. There is reason to believe the case of the wife that the husband had thrown out the wife from the matrimonial home and had tried to make out a case of her leaving the matrimonial home without informing anybody in the family. It is clear from a reading of the chits at Exhibits-24 and 26 that the husband was trying to built-up a case of the wife leaving the matrimonial home and of treating the husband and his family members with cruelty. We have already mentioned herein above and we repeat that no wife would ever write such letters-chits and give them to her husband and her in-laws. It is difficult to believe the contents of the chits at Exhibits-24 and 26. Since these chits are produced by the husband, the husband is to be blamed. Merely because the wife has not specifically pleaded a case in her written statement due to poor drafting, it cannot be said that the case of the husband is proved. The case of the husband could be proved only on the basis of the pleadings and the evidence tendered by him. We do not find on a reading of the pleadings and the evidence that the husband has successfully proved that the wife has treated him and his family members with cruelty. We disbelieve the case of the husband that the wife left the matrimonial home by leaving a child, who was barely ten months and one and half years of age. We believe the case of the wife, as pleaded in paragraph-9 of her written statement that she was thrown out of her matrimonial home and the child was retained by her husband and his family members and the wife was not permitted to meet the child. This appears to be a case where the wife is from a poor family and the husband is from a well to do family. The standard of living and the financial status of the husband can well be depicted by the photographs of the house of the husband that are filed on record. The house of the husband is a big bungalow whereas the only brother of the wife admittedly runs a pan kiosk. There is reason to believe the case of the wife that as the father of the husband was in the Police Department, she was not in a position to make a complaint in respect of the chits at Exhibits-24 and 26, having been forcibly executed from her. We do not find that the husband has been successful in proving that the wife had treated him with cruelty. On a perusal of the chits at Exhibits-24 and 26, we are of the view that even if the husband had been successful in proving that the wife had treated him with cruelty, still we would have declined to grant a decree of divorce in his favour in a petition filed by him, as the husband cannot be permitted to take advantage of his own wrong. We find that the chits at Exhibits-24 and 26 are forcibly executed from the wife, as no woman/wife would ever write the statements, as are found in the chits. The Family Court did not consider the evidence of the parties in the right perspective before granting a decree of divorce in favour of the husband only on the ground that the husband had been successful in proving that the wife had left the matrimonial home on a couple of occasions, by leaving behind a girl child of ten months and one and half years. We have already observed that the husband has failed to prove his case in this regard. On a proper appreciation of the evidence on record, in our view, the judgment of the Family Court is liable to be reversed and the decree of divorce is liable to be set aside.

Hence, for the reasons aforesaid, the family court appeal is allowed. The judgment of the Family Court, dated 21/11/2014 is hereby set aside. The petition filed by the husband for a decree of divorce is dismissed. In the circumstances of the case, there would be no order as to costs.