Bhavana N. Shah Vs. Nitin Chimanlal Shah

Court: BOMBAY HIGH COURT

Bench: JUSTICE A.M. Khanwilkar & A.R. Joshi

BHAVANA N. SHAH Vs. NITIN CHIMANLAL SHAH On 21 June 2012

Law Point:
False, frivolous and unsubstantiated allegations against husband of having illicit relations with his sisters — No contemporaneous evidence produced by wife to corroborate her version — It was clearly an attempt to sully reputation not only of respondent-husband but also of two sisters who were in profession of Medicine and Law respectively — That by itself is a good and germane ground to dissolve marriage between parties and to grant decree of divorce.

JUDGEMENT

We propose to dispose of both these Appeals together by this common judgment.

2. Appeal No. 28/2012 is directed against the judgment and decree passed in Petition No. A-1082/2007 dated 1st December, 2011 passed by Family Court No. VII, Mumbai, whereby, the Family Court allowed the Petition filed by the respondent-husband for dissolution of marriage and divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955.

3. The other Appeal being Appeal No. 29/2012 is also filed by the wife along with daughter challenging the common judgment dated 1st December, 2011 passed by the Family Court No. VII, Mumbai in Petition No. C-136/06 praying for maintenance and separate residential accommodation for herself and minor daughter Palak Nitin Shah under Sections 18(2)(a), (b), (g) and 20 of the Hindu Adoptions and Maintenance Act, 1956.

4. The Family Court by the common judgment has dismissed the petition filed by the wife and minor daughter for maintenance and residential accommodation but has allowed the Petition filed by the husband for dissolution of marriage and decree of divorce. We would first examine the challenge to the decree of divorce by the appellant wife.

5. The respondent-husband in his Petition filed under Section 13(1)(ia) and (ib) of the Hindu Marriage Act has stated that the marriage between the parties took place on 5th February, 1990. They were blessed with one daughter named Palak. After few years, discord between the spouses took place as a result of very rude behaviour of the wife. The wife was uninterested in domestic work. She picked up quarrels on unessential matters and created unhealthy atmosphere in the house. The wife was in the habit of making false, frivolous and concocted allegations against the husband and his family members. She went to the extent of making false allegations against the husband having illicit relationship with his two real sisters. That on 1st June, 2005, the wife left her matrimonial home on her own and in spite of persuasion by the husband and his relatives, she refused to join the company of the husband. On the basis of these allegations, the husband prayed for dissolution of marriage between the parties solemnized on 5th February, 1990 at Mumbai and the decree of divorce.

6. The appellant wife filed written statement to oppose the said Petition. The parties adduced evidence in support of their respective claim. The Family Court adverting to the relevant evidence and placing emphasis on the admissions given by the appellant-wife in her cross-examination, accepted the claim of the respondent-husband. The Family Court in the common judgment has highlighted the admissions of appellant in her cross-examination wherein she has admitted that she did not lodge any complaint before police against respondents or his family members. Further, she does not have any evidence to show that she was tortured mentally as well as physically. She admitted that she got her daughter admitted in Nazareth School without consent of her husband and she had never discussed with husband about the same. She has also admitted that the husband and his family members approached her and tried to convince her to come back to her matrimonial home on two occasions. She has admitted in the cross-examination that she saw the illicit relations between her husband and his real sisters. The Family Court has then considered the admission of appellant’s witness PW 2 i.e. daughter Palak. It has then noted that besides the oral admissions of the appellant and her witness, even the documentary evidence goes against the appellant. It took into account the pleadings and oral evidence of the parties, more particularly, in respect of the allegation about the illicit relations of husband with his sisters. The appellant had made those allegations in her letters sent to the husband and reiterated the same in the pleading and also in the oral evidence and justified the same on the ground that that was her inner feeling. The Family Court, therefore, opined that the allegations by the appellant-wife about illicit relation between husband and his sisters were unsubstantiated and frivolous. The Family Court has noticed the letters Exhibit 62 and Exhibit 63, in addition to the stand taken in the written statement as well as oral evidence of the appellant. The Family Court on analysis of the above material then proceeded to authoritatively hold that the wild allegations made by the wife against the husband about illicit relations between him and his sisters, coupled with the fact that in spite of attempt made by the husband and his family members to persuade the appellant-wife to come back to her matrimonial home and resume cohabitation/conjugal rights, she failed to do so, answered the issue against the appellant-wife and, therefore, dissolved the marriage between the parties on the ground of cruelty within the meaning of Section 13(1)(ia) and Section 13(l)(ib) of the Hindu Marriage Act. This is the sum and substance of the finding and the conclusion reached by the Family Court to answer the matter in issue.

7. We have heard Mr. Karwande for the appellant-wife and the respondent husband who has appeared in-person. No doubt, Mr. Karwande made strenuous effort to persuade us to take the view that the common judgment of the Family Court is completely unsustainable as it fails to analyse the evidence properly and to record finding of fact in the context of the separate issue that was required to be answered before concluding that the petition filed by husband for dissolution of marriage and divorce deserves to be allowed. The argument is attractive at the first blush. However, as aforesaid, the Family Court has adverted to the substance of the pleading and oral and documentary evidence adduced, by the parties. The Family Court has deduced its conclusion on that basis. After having perused the relevant pleadings and the evidence on record, which this Court in appeal is expected to do, the conclusion reached by the Family Court in dissolving the marriage between the parties and passing decree of divorce is inevitable. We are inclined to uphold the order of dissolution of marriage and the decree of divorce.

8. We would first deal with the ground ascribable to Section 13(l)(ia) of the Hindu Marriage Act. The Family Court has adverted to different allegations found in the petition filed by the husband. In our opinion, the decree passed by the Family Court ought to be upheld on the ground of cruelty considering the fact that the appellant-wife in her communication dated 11th May, 2006 in response to the letters sent by the respondent-husband dated 5th December, 2005 and 11th January, 2006 has stated about the incidents she had personally noticed indicative of illicit relations between the respondent-husband and his sisters. We refrain from reproducing those allegations in this judgment. Suffice it to mention that the same are serious and disparaging remarks. The respondent-husband in his petition has pointedly referred to the said communication, being one of the acts committed by the appellant-wife which had caused immense mental agony and cruelty to him. The appellant-wife in the written statement went on to reiterate those allegations and gave justification that the letters sent by her on 11th May, 2006 was a privileged communication between the husband and wife. She has further justified her stand on the ground that she had stated those facts in the said letter on the basis of “her inner feelings”. This defence is found in paragraph XIV of the written statement. The husband in his evidence has reiterated the position that making of such mala fide, reckless and frivolous allegations by the wife constituted severe mental cruelty to him. Nevertheless, the appellant-wife in her oral evidence (cross-examination) went on to assert that she personally saw the illicit relations between the respondent-husband and his real sisters and she had written about the same in her communication dated 11th May, 2006 sent to respondent-husband on the basis of her inner feelings. Admittedly, no contemporaneous evidence has been produced by the appellant-wife to corroborate her version. The facts stated by her in her communication dated 11th May, 2006 on which she has placed reliance have not been substantiated by the appellant at all, except her bare words. The making of such false, frivolous and unsubstantiated allegations against the husband in the communication as well as reiterating the same in the written statement and also in the oral evidence given by the wife before the Court was bound to cause mental cruelty to the husband. It was clearly an attempt to sully the reputation not only of the respondent-husband but also of the two sisters who were in the profession of Medicine and Law respectively. That, by itself, is a good and germane ground to dissolve the marriage between the parties and to grant decree of divorce under Section 13(l)(ia) of the Hindu Marriage Act. We need not deal with the other allegations concerning ground of cruelty. Even the Family Court has not touched upon those allegations but in substance has opined that this ground established from the record was sufficient to grant decree of divorce. In other words, the decree of divorce under Section 13(1)(ia) deserves to be upheld in the fact situation of the present case.

9. The Family Court has also dissolved the marriage between the parties and granted decree of divorce on the ground under Section 13(1)(ib) i.e. desertion. As an appellate Court, having upheld the decree of divorce on one count, which is formidable one and unassailable on any count, it may not be necessary to dilate on other grounds to sustain the decree. Be that as it may, we find that even though the Family Court has not thoroughly analysed the pleadings and evidence on record in the context of Section 13(l)(ib), but has certainly referred to the substance of the pleadings and the evidence. The Family Court has noted that appellant-wife left the matrimonial house on her own on 1st June, 2005 and that in spite of persuasion by the respondent-husband and his family members on two different occasions, she refused to resume cohabitation/conjugal rights. The fact that she left her matrimonial home on 1st June, 2005 is admitted by the wife. She has also admitted that after leaving the matrimonial home, she stayed with her father. Further, she took away her daughter along with her and got her admitted in Nazareth School without consulting her husband or informing him about the same. She has also admitted that the husband and his family members had come to her on two occasions to convince her to resume cohabitation/conjugal rights, but she did not go back to her matrimonial house. On the basis of these admitted facts, the Family Court has granted decree of divorce also on the ground of desertion under Section 13(1)(ib).

10. As aforesaid, on reading the impugned judgment, it may appear that it has straightaway jumped to conclusion against the appellant-wife. Notably, the Court has rightly noted the essential factors to constitute the ground of “desertion”. Such as, factum of separation, intention to bring cohabitation permanently to an end, the element of persuasion. In the communication sent by the wife to the husband and more so in her pleading and oral evidence before the Court, the appellant-wife has given admission on the above aspects. The fact that the parties separated on 1st June, 2005 is indisputable. The husband having approached appellant-wife as also his family members on two occasions to persuade the appellant to resume cohabitation/conjugal rights has been admitted by the appellant-wife. However, she refused to go back. It necessarily follows that the appellant-wife had shown intention to bring cohabitation permanently to an end. Even persuasion by respondent-husband and his family members did not work with the appellant. She steadfastly refused to join the matrimonial home. In this backdrop, the finding as well as the conclusion reached by the Family Court of dissolving the marriage between the parties and granting decree of divorce under Section 13(1)(ib) is also unexceptionable.

11. As aforesaid, no interference is warranted with the final order passed by the Family Court in dissolving the marriage between the parties and granting decree of divorce on the ground of cruelty and desertion under Sections 13(1)(ia) and 13(l)(ib) in favour of respondent-husband and against the appellant-wife.

12. That takes us to the other Appeal arising out of the dismissal of Petition filed by the appellant-wife, for maintenance and separate residential accommodation, by the common judgment and decree. Indeed, this Petition was filed by the appellant-wife in earlier point of time. The Petition for dissolution of marriage and divorce was filed by the husband, during the pendency of the maintenance petition. The claim in the maintenance petition was founded on the ground under Section 18(1) and 18(2)(a), (e) and (g). In other words, appellant wife claimed separate residential accommodation from her husband without forfeiting her claim of maintenance, on the ground of desertion by the husband and of abandoning her without reasonable cause and without her consent or against her wish, or wilfully neglecting her. The second ground was that she was treated with such cruelty as to cause reasonable apprehension in her mind that it will be harmful or injurious to live with her husband and, thirdly, that there are other causes justifying living separately. The Trial Court has examined the subject issues while considering the question of awarding maintenance amount to the wife and the daughter as well as of separate residence to the wife, together. Indubitably, these issues were distinct and were required to be analysed and decided separately. Further, the same have been disposed of together by cryptic judgment, in the following words:

“Issue Nos. 1 to 4 (in Petition No. C-136/ 2006)

22. The evidence is already discussed above. To avoid repetitions and the issues involved in this case, it is sufficient to mention that Bhavana (wife) left the matrimonial home on her own. She took with her minor daughter, who has attained majority today. She even failed to inform the husband. She admits that she has no proof of physical or mental cruelty. She has not proved reasonable cause to reside separately.

23. There is sufficient evidence on record to show that Nitin (husband) was willing to continue matrimonial relations. He has made request in writing (Exh. 62 and Exh. 63). Bhavana (wife) has not bothered to reply it. Palak (P. W. No. 2) admits that sister of respondent had come to convince her and mother to come to reside with them. Bhavana (wife) also admits that on two occasions the husband and his family members came to bring her back. Section 18(1) of Hindu Adoption and Maintenance Act, 1956 provides wife shall be entitled to be maintained by her husband during her life time. Sub-clause (2) provides —a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance:

(a). If he is guilty of desertion,

(b). If he has treated her with cruelty,

(c). If he is suffering from a virulent form of leprosy,

(d). If he has any other wife living,

(e). If he keeps a concubine in the same house,

(f). If he ceased to be a Hindu by conversion, if there is any other cause justifying her living separately.

24. The rights and liabilities are co-relative. If any one want rights, then he has to perform liability. No doubt, the wife is entitled to live separately for any of the just grounds as provided under Section 18(2) of the Hindu Adoptions and Maintenance Act, 1956. The entire evidence on record shows that Bhavana (wife) is at fault. She herself treated the husband with cruelty. She has deserted him without reasonable cause. She has failed to prove her claim.

25. The argument (Exh. 86) advanced by wife is mainly relating to properties or without any factual or legal support. Hence, need no reply. Therefore, I answer point Nos. 3 to 4 in the negative.”

13. In substance, the Family Court was influenced by the fact that, in the accompanying Petition, it was already found that appellant-wife had left the matrimonial home on her own, along with her minor daughter and was not willing to return back, even though the respondent husband was willing to continue with the matrimonial relation. Thus, the Family Court held that the appellant-wife is disentitled from claiming maintenance from her husband. As regards the maintenance amount payable to daughter Palak, the Family Court noted that she has attained majority. The fact that she was still unmarried, has not been reckoned at all. Be that as it may, we are of the considered opinion that the manner in which the Petition for maintenance and separate residence, filed by the appellant, has been decided, is undesirable. The Family Court ought to have analysed the pleadings and evidence in the context of the claim of maintenance by wife and unmarried daughter, though attained adulthood.

14. The respondent has placed emphasis on the decision of the Rajasthan High Court in Shimla Devi v. Kuldeep Sharma, I (2001) DMC 8 (DB)=AIR 1999 Raj. 181. In that case, the Court proceeded on the finding that the wife was unwilling to reconcile and resume cohabitation. Notably, the said judgment considered the correctness of the decision of the Family Court by which the marriage between the parties came to be dissolved and decree of divorce was passed. The observations found in Paragraphs 7 and 8 of the said decision, on which emphasis has been placed, will be relevant in the context of the issue of dissolution of marriage and passing of decree of divorce. Reliance was then placed on the decision in the case of Deb Narayan Halder v. Smt. Anushree Halder, V (2003) SLT 170=III (2003) CCR 242 (SC)=AIR 2003 SC 3174. The Court found that the reasons given by the wife, about her ill-treatment, were non-existent and unsubstantiated. The Court then proceeded to hold that the wife left the matrimonial home without any justification. On that basis, the Court answered the issue of maintenance under Section 125 of the Code of Criminal Procedure, which is attracted when the person, having sufficient means, neglects or refuses to maintain his wife and unmarried daughter, though they are not able to maintain themselves. Section 18(1) of the Hindu Adoptions and Maintenance Act, 1956 bestows right in the Hindu wife, being entitled to be maintained by her husband during her life-time. Indeed, the opening words of the said section are of some significance, which read—“subject to the provisions of this Section”. Sub-section (1) of Section 18, distinctly deals with issue of maintenance of Hindu wife, by her husband, during her lifetime. Whereas. Section 18(2) of the Act bestows right in the Hindu wife to be entitled to live separately from her husband without forfeiting her claim of maintenance. In the present case, besides the issue of maintenance of wife, it was necessary to examine the independent claim of the unmarried daughter—who at the time of institution of the petition was admittedly minor.

15. As regards the claim of the appellant-wife for providing separate residential accommodation, even if we were to take the view that the Family Court in substance has found that the appellant wife has not substantiated the requirements specified in Clause (a) and Clause (b) of Sub-section (2), even then, the Court was obliged to analyse the pleadings and evidence of the parties in the context of the requirements of Clause (g) of Section 18(2), which entitles the Hindu wife to live separately from her husband without forfeiting her claim to maintainance on account of any other cause justifying living separately. That was one of the ground pressed into service by the appellant for her claim of separate residence, in her petition, which is noted even in the opening part of the judgment. The Family Court ought to have considered the matter in that context.

16. On a bare perusal of Section 18, it is amply clear that the sweep of each requirement under Sub-section (2) is markedly different. In other words, each of these causes in Clauses (a), (b) and (g), invoked by the appellant wife, operate in different spheres. It was but appropriate that the Family Court ought to have analysed the material on record to answer the same independently and not to jump to a conclusion.

17. Considering the fact that the Family Court has not properly dealt with the issues of maintenance and separate residence, we deem it appropriate to quash and set aside the reasons and the conclusion on these two issues, which have been considered in Petition No. C-136/2006, filed by the wife along with the daughter. Instead, the parties will have to be relegated before the Family Court for reconsideration of the said matter afresh from the stage of oral arguments, on its own merits, in accordance with law, uninfluenced by any observation made in the impugned decision on the said issues.

18. We may place on record that we are not specifically touching upon the arguments canvassed by the parties, in relation to these two issues of grant of separate residence to wife and maintenance amount payable to the wife and daughter, unmarried though. Inasmuch as, any observation made in that behalf would affect the parties one way or the other. In other words, all the contentions available to the parties, in Petition No. C-136/2006, are kept open.

19. Accordingly, we proceed to pass the following order:

ORDER

(1). The Appeal No. 28/2012 filed by the wife challenging the decree of dissolution of marriage between the parties and divorce is dismissed. Instead, the said decree, passed by the Family Court at the instance of the respondent-husband, is upheld and maintained.

(2). The Family Court Appeal No. 29/2012 is allowed. The judgment and decree, passed in Petition No. C-136/2006 is quashed and set aside. Instead, the parties are relegated before the Principal Judge, Family Court, Mumbai for reconsideration of the said Petition afresh from the stage of oral arguments. All questions therein are left open.

(3). The parties shall appear before the Principal Judge of the Family Court, Mumbai on 2nd July, 2012, who may take up the said Petition No. C-135/2006 himself or assign it to any other Judge of the Family Court at Mumbai for de novo reconsideration from the stage of arguments. The concerned Judge shall dispose of the said Petition expeditiously.

(4). No order as to costs.

(5). In view of the above order, Civil Application stands disposed of.

Application disposed of.