Dismissed

Manisha Rajaram Raut v. Rajaram Tukaram Raut

Bombay HC13 Nov 2013FCA/16/2006

Case brief

AI extract

What is this about?

Appeal by the wife against a Family Court decree dissolving the marriage on grounds of cruelty and desertion. The High Court held that her undisputed letters making wild allegations of illicit relations against the husband amounted to mental cruelty, and that the husband was compelled to leave the matrimonial home, confirming the decree of divorce and the maintenance awarded.

What did the court decide?

Appeal dismissed; decree of divorce upheld; maintenance of Rs.1,000 per month confirmed, with liberty to the appellant to apply for enhancement under Section 25(2).

Manisha Rajaram Raut Vs Rajaram Tukaram Raut — Maintenance and Alimony | Bombay HC (2013)

fca.16.06.doc

SQP

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.16 OF 2006

“M” ...Appellant

V/s.

“R” ...Respondent

Mr. A. G. Toraskar for Appellant Mr. S. G. Deshmukh for Respondent

¶9

CORAM:- A. S. OKA AND REVATI MOHITE DERE, JJ.

¶10

JUDGMENT RESERVED ON : 7^th OCTOBER, 2013 JUDGMENT PRONOUNCED ON : 13^th NOVEMER, 2013

¶11

JUDGMENT (Per Revati Mohite Dere, J. ) :

¶12

Considering that this Judgment would be available in public domain,

¶13

we have described the appellant and the respondent as M' and R' respectively.

¶14

The appellant wife, takes exception to the Judgment and Decree dated 1^st March, 2005 passed by the learned Judge of the Family Court, Bandra, Mumbai, in M.J. Petition No.A-1915/1996, by which the marriage solemnized between the parties i.e. the appellant wife and respondent

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husband came to be dissolved by a Decree of Divorce. The respondent husband had filed a Petition in the Family Court, Bandra, Mumbai on 18^th October, 1996, praying therein for a decree of divorce on the ground of cruelty and desertion i.e. under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as `the said Act'). The appellant wife had also filed M.J. Petition No. C-130 of 1995, on 15^th September, 1995 praying therein for maintenance under Section 18 of the Hindu Adoption and Maintenance Act, which came to be dismissed, by the same impugned Judgment and Decree dated 1^st March, 2005. However, as the Appellant-wife has not challenged the dismissal of her M.J. Petition No.C-130/1995, we are in this present Appeal concerned with the challenge to the Judgment and Decree dated 1^st March, 2005, only to the extent, that it grants decree of divorce to the Respondent - husband under Sections 13(1) (ia) and (ib) of the said Act.

¶20

Before adverting to the submissions advanced by the learned Counsel for the parties, it would be necessary to place on record certain facts as would be necessary for determination of the issues before us :

¶21

The respondent husband had filed a petition in the Family

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Court, Bandra, Mumbai seeking divorce on the ground of cruelty and desertion, under Section 13 (1) (ia) and (ib) of the 'said Act. ' He has stated in his petition, that his marriage with the appellant was solemnized on 15^th March, 1971, as per Hindu Vedic Rites at Mumbai, and that there were two issues from the wedlock. The two sons were aged about 24 and 22 years of age. He has stated that it was a love marriage and therefore, no inquiries were made with regard to the appellant wife's background. He has further stated that he came from a poor family and was working as a peon in a private firm at Fort, Mumbai in 1962 and it was only in 1964, that he secured the job of a clerk in 'Automobile Product of India' at Bhandup, Mumbai. He has stated that he was taking care of his parents and supported them financially. It was alleged by the respondent husband that after marriage, the appellant wife disapproved the same and started quarreling with him and his parents, which compelled him to leave the house along with the appellant wife. After staying for a couple of months, initially at his cousin's house and then at a friend's house, they returned back to his parents' house, as he could not make monetary arrangements for an independent accommodation. He has alleged that as differences continued, he was compelled to take a single room at Dombivli, Mumbai.

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However, they returned back to his parents house for the wife's first delivery and after delivery, within a month, they again went to reside at Dombivli. The respondent husband has stated that after his father expired in 1973, he wanted to stay with his mother, however, the appellant wife flatly refused to go back. It is alleged that the appellant wife refused to let him stay with his mother on the pretext that she and her minor son would be alone at Dombivli. He has stated that he was shocked to see the indifferent behaviour of his wife and he went through a great deal of mental tension and agony but tolerated the same, as he loved her and did not want to hurt her feelings. Respondent husband has further stated that he had taken a loan from the Credit Society of his Office and gone to reside in a single room at Mulund with his wife and minor son from 30^th December, 1973. He has stated that he worked hard in order to provide his wife with all the comforts, however, she always insulted and abused him. The respondent husband has further stated that the second son was born on 23^rd August, 1974, after which he hoped that his wife would change for the better. He has further stated that after taking a loan from his Provident Fund and Bhandari Cooperative Bank, he purchased a two-room kitchen flat at Mulund in 1980 and a small Gala of about 300 sq. ft. at Thane. He has

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alleged that as his wife had insisted that some property should be in her name, he transferred the Current Account with the Saraswat Cooperative Bank and the business that he had started in the Gala, in the name and style as `Ramav Enterprises' in the name of the appellant wife. He has stated the he purchased certain equipments required for the business by taking heavy loans and that he attended to the business after his office hours and conducted the business himself. He has further stated that as the business started prospering, he found it difficult to manage his job and the business simultaneously and as he had no helping hand in the business, he was constrained to resign from his job in 1986. He has further stated that he had invested all the monetary dues which he had received after his resignation for expansion of his business. It is alleged by the respondent husband that after his resignation, he had requested the appellant wife to transfer the business in his name, but she refused, which led to quarrels between them and finally with great reluctance, she transferred the business as well as the Bank Account in his name. It is further alleged that his wife's harassment and ill-treatment got worse and she would very often insult and abuse him in the most filthy language, in the presence of the children and that in order to prevent any quarrel, he would remain silent. He has further

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alleged that the appellant wife started openly alleging that he was having illicit relations with his own sister, which came as a great shock to him resulting in mental trauma, pain and agony and his health deteriorated. It was also alleged that the appellant started prejudicing the minor children against him, as a result, they showed no respect for him. The respondent has given certain instances with regard to the behaviour of the appellant wife and the filthy language used by her. He alleged that the wife had prejudiced the children to such an extent, that one of his son attacked him with a scissor and would openly threaten him that if he did not leave the house, he would kill him. He has further alleged that his children, at the instance of the appellant wife, started passing remarks like “Why don't you die soon?”. He has stated that as a result of the said behaviour he was made to feel unwelcome in his own house, by the appellant wife who showed hatred and animosity towards him. He has alleged that the hatred shown by the appellant wife and the children daily, coupled with threats made it impossible for him to stay in his own house. It is alleged that the said conduct of his wife and children affected his health and consequently his business. He has alleged that the respondent wife even took the house keys from his possession and instructed him to come home after prior intimation

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on telephone. According to the respondent husband, it was in these circumstances that he was constrained to leave home on 19^th August, 1993.

¶47

He has stated that he went to Chiplun with his machinery and tried to set up the business. He has further stated that on 7^th October, 1993, he was shocked and surprised to see his wife and son at Chiplun, where they came and created a nasty scene. He has alleged that his son broke the glass on a writing table and tried to assault him with a big piece of glass. As a result, of which he was compelled to lodge a complaint i.e. N.C. No.2128 against the appellant wife and his son with the Police on 7^th October, 1993 at Chiplun. The respondent husband has further stated that as it was not feasible for him to continue his business at Chiplun due to innumerable difficulties, he discontinued the business and returned back to Mumbai in January, 1994 and went to reside with his brother at Kandivli for about a month. He has stated that his brother personally met the appellant wife with a view to bring about a reconciliation between the two. However, the wife is alleged to have told his brother that when they went to Chiplun to bring back the respondent, the respondent became mad, and therefore they cancelled the idea of bringing him to Mumbai. It is alleged

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that the wife even warned the respondent's brother that if the respondent dared to return home, they would make arrangements to get him admitted into a Mental Asylum. The respondent has further stated that when he went back to Chiplun in March, 1994, the watchman gave him a notice sent by an Advocate. He noticed that the same was undated and as per the postal stamp, it was sent some time in February, 1994. He has alleged that he met the Advocate, who after hearing him, agreed to bring about a settlement, which attempt failed. It is alleged by the respondent husband that the appellant wife took from the Advocate, the description of the two persons, who had accompanied him to the Advocate's Office, and from the description, presumed that one of them was Mr. H. It is stated by the respondent husband that the appellant wrote a letter to Mr. H dated 25^th October, 1994 and enclosed another letter dated 3^rd November, 1994 addressed to the respondent with it and instructed Mr. H to hand over the same to the respondent. The said letters are at Exhibits 27 (colly.) The contents of the letter dated 3^rd November, 1994 addressed to the respondent which was sent to Mr. H were extremely derogatory, abusive, filthy and perverse.

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The respondent husband has stated that as he could not get separate accommodation, he started staying in a workshop at Bhandup and eating food from the Hotel and managed his day-to-day activities with great difficulty. It is alleged that the appellant wife only with a view to harass him lodged a missing complaint with the Mulund Police Station on 6^th June, 1995, inspite of being fully aware that he was in Mumbai and prior to that, in Chiplun.

¶58

He has alleged that on 7^th February, 1995, his wife came to his workshop at Bhandup, abused him in the most filthy language and even assaulted him. He has alleged that although, he had not harmed her in any way, the appellant wife lodged a false police complaint against him with the Bhandup Police Station. The respondent has further stated that the flat, where the wife and sons are residing, stands in his name and that he had purchased it out of his own savings and that the flat is fully furnished with all facilities. He has further stated that although the appellant wife had transferred the Gala and business in his name, she had taken forcible possession of the said Gala from one Mr. Amre, to whom, the said Gala was later on given by him on Leave and License Basis. He has further stated

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that it is only on 22^nd December, 1995, when the appellant wife made a statement before the Marriage Counselor, that he learnt that she had already sold the Gala without consulting him, despite the fact that the same was purchased with his hard earned money. He has further stated that in view of the several domestic problems faced by him, he has been staying in a small room, admeasuring 10 x 10 sq ft. on rental basis. He has alleged that since the time of his marriage, he has been continuously treated with extreme physical and mental cruelty by the appellant wife and therefore prayed for a decree of divorce under Section 13 (1)(ia) of the said Act. He has stated that he had not condoned the acts of cruelty inflicted on him by the appellant wife.

¶64

He has further stated that from 19^th August, 1993, he was constrained to leave his home and has been continuously deserted by the appellant wife and has been deprived of his marital right and as such claimed that he was also entitled for a decree of divorce under Section 13 (1)(ib) of the said Act.

¶65

The appellant wife contested the petition filed by the respondent

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husband by filing her written statement. She has denied all the allegations made by the respondent husband, as against her. The appellant wife has admitted that the respondent was residing with his parents and was maintaining them. According to the appellant, her sister-in-law came from her native place and started residing with them. The appellant has alleged that her mother-in-law was interested in keeping her own daughter and therefore drove her and the respondent out of the house. The appellant has admitted that they went and stayed at Bhandup and later came back to her in-laws house. According to the Appellant, when she was eight months pregnant, she was driven out of the house by her mother-in-law and sisterin-law after a quarrel. She has alleged that the respondent did not inform her of the sale of the Dombivli flat nor gave her any money from the sale proceeds. The appellant has denied that she gave any mental tension to the respondent. She has admitted that she started residing at Mulund with the respondent from December 1973 and at Mulund from 1980, but claimed ignorance about the sources of funds for purchase of the same. According to her, she was making payment towards the loan from the business which she was running in the name of 'Ramav Enterprises'. She has stated that the gala was purchased by her from her own savings. According to the

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appellant she had written a letter to the respondent, alleging illicit relations with his sister as a rebound and in anger as the respondent had alleged that she had illicit relations with her son. According to her, there was nothing for respondent to be shocked and surprised, as he deserved the same for making irresponsible allegations against the sons. The appellant has alleged that the respondent would tell the children that they were her agents and were helping her in her bad activities, which was untrue. She denied having poisoned the children against the respondent. She also denied that the son threw a scissor at the respondent and threatened to kill him.

¶76

The appellant has admitted that the respondent left home in August, 1993, but has stated that it was out of his own free will. She has denied the Chiplun incident. She admits that the respondent came back to Mumbai and started residing with his brother. According to her she tried bringing him back, but he refused. She has denied having lodged a false case with the police. She has stated that it was the respondent who ill treated her and the sons. According to her, as the respondent left on his own accord and as she had not treated him with cruelty, he was not entitled for divorce under

¶77

Section 13 (1) (ia) (ib) of the Hindu Marriage Act.

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It is pertinent to note, that during the pendency of the said petition i.e. M.J. Petition No.A-1915/1996 filed by the respondent husband, an application came to be preferred by him, seeking amendment to his petition in January, 2000. Certain details of acts constituting cruelty and desertion were set out in the said amendment, which came to be granted by the learned Judge. It was alleged by the respondent; that on account of a flimsy quarrel on 10^th July, 1993, the appellant started abusing him in filthy language and threw utensils on him when he asked her to lower her voice. It was further alleged that the appellant would threaten to commit suicide and put him behind bar forever, if he did not concede to her demands. The respondent had also alleged that the appellant had refused to keep marital relations with him since August 1993, when she compelled him to leave the matrimonial home and thereafter prevented him from entering the house.

¶83

The Appellant replied to the aforesaid allegations by filing her reply. She denied all the allegations.

¶84

The learned Family Court Judge, Bandra framed issues on the basis

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of both the petitions. Thereafter the parties adduced evidence before the Family Court.

¶90

It would also be necessary to advert to the evidence adduced by the parties in support of their claim. The respondent husband in support of his claim for divorce, examined himself (Exhibit 17), witness Mr. S - a family friend and neighbour of the respondent husband (Exhibit 41), Witness Mr. H – a colleague of the respondent husband who was working with him in the same company (Exhibit 42) and to whom letter (Exhibit 27) was addressed and his daughter in law (Exhibit 88). The appellant wife examined herself (Exhibit 44), and her son (Exhibit 93) and jeweller Mr. J (Exhibit- 101).

¶91

The evidence of the respondent husband is consistent with the averments set out in the marriage petition and has already been set out hereinbefore. He has produced two letters sent to Mr. H – one addressed to Mr. H and one addressed to him sent on Mr. H's address. The said letters are dated 25^th October, 1994 and 3^rd November, 1994 respectively. It is pertinent to note that the said letters have been admitted by the appellant

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wife. He has stated that in the said letter addressed to the respondent, the appellant wife had alleged that the respondent was having illicit relations with his sister and sister-in-law and has also used filthy and abusive language against him. There is no cross-examination on certain specific averments with regard to the alleged acts of cruelty deposed to by the respondent husband.

¶97

The second witness examined by the respondent husband is one Mr. S in support of his claim. The said witness was examined with regard to certain documents with regard to the business and transfer of business from the appellant wife to the respondent. It is not relevant for us to deal with the evidence of the witness or his cross-examination, as the said witness has not been examined with regard to the alleged acts of cruelty or with regard to desertion, with which we are concerned in the present Appeal. A suggestion was put by the appellant to the said witness that he was tutored by the respondent husband which was denied by him. Infact the appellant had sent a letter dated 20^th December, 1994 (Exhibit 28) stating therein that he was supporting the respondent, as he wanted to grab the respondent's

property.

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The respondent examined Mr. H to prove letters at Exhibit 27 (colly.) dated 25^th October, 1994 and 20^th December, 1994 respectively which were received by him from the appellant. He has stated in his examination-inchief that he was working in the company along with the respondent. He has stated that he received a letter from the appellant at his residence, pursuant to which he learnt about the strained relations between the two. He has stated that one letter was addressed to him and the other letter was addressed to the respondent. He has stated that in the letter addressed to him by the appellant, it was alleged that he wanted to grab the respondent's workshop. He has stated that the said allegations were totally false. He has further stated that the letter which was addressed to the respondent was open and was attached to the letter sent to him and therefore he read the said letter. He has stated that the language used in the said letter addressed to the respondent was filthy and abusive and therefore, he handed over both the letters to the respondent. In the cross-examination, it is pertinent to note that the appellant has not disputed having sent the letters at Exhibit 27 (colly.). The only suggestion that was made to the said witness was that the said letter was written to him only because he had accompanied the

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respondent husband to one Advocate's office to seek advice, which he has denied.

¶109

The respondent also examined his daughter-in-law. She stated that

¶110

she was married to the appellant's son on 13^th January, 2001 at Thane and that it was an arranged marriage. The said witness has given details of post 2001 events with regard to her relationship with her husband, her motherin-law i.e. appellant, which were strained. She has stated that the appellant would nag her and as a result of her interference, there used to be quarrels between her and her husband. She stated that her father-in-law i.e. respondent lives at Bhandup in a slum area, in a chawl in a small room and that she knew him for the last one and half year and that, he appears to be a simple person. Her evidence, however is not relevant and therefore, we do not wish to deal with her evidence, as she was married in 2001 and as such, had no knowledge about the alleged acts of cruelty and desertion on which the petition came to be filed by the respondent husband for divorce.

¶111

The appellant wife examined herself. She has reiterated the contents set out in the written statement, which are adverted to in detail in the earlier

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part of this Judgment. It would be apposite to mention here that the appellant wife had also filed a petition for maintenance, which was also clubbed with the respondent's petition. The entire thrust of her examination-in-chief is with regard to the gala and to the financial problems faced by her after the separation. She has alleged that the respondent husband had left the house on 20^th January, 1993 and 24^th April, 1993 and had gone to reside with his sister. She has alleged that the respondent was residing at his sister's place. When she went there, she found that the husband was at home and that after a lot of persuasion by the elder son, respondent came home. She has stated that the respondent husband alleged that she was indulging in prostitution and that she had tolerated the same for the sake of marriage. She had further alleged that the respondent had behaved abnormally and eccentrically. She has further alleged that her elder son told her that the father i.e. respondent wanted him to keep a watch on her and that he had promised to give his son money for the same. She has stated that she was behaving well with the husband and was looking after him, however it was the respondent who did not behave responsibly towards the children and never took care of the children. She has stated that she had taken up all the responsibilities of the children. She has further

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stated that the management of 'Ramav Enterprises' was although being looked after by the respondent, she was helping him in the business. She has further alleged that the respondent after leaving the house in 1993, would call up and use abusive language against her, as a result of which, she had lodged complaints against him with the Bhandup/Mulund Police Station. She has produced the said police complaints (Exhibit 50 and Exhibit 55). She has further alleged that as the respondent husband deserted her, the Committee members of the Society behaved badly with her and she was not allowed to attend the society meetings. She has stated that she was residing at the said residence at Mulund with her younger son, his wife and their daughter.

¶122

The appellant wife has produced a letter dated 8^th February, 1995 being Exhibit 50, written to the Deputy Commissioner of Police, Bhandup wherein she has stated with regard to an incident which allegedly took place at `Ramav Enterprises'. She has stated that the respondent husband abused her at the work place and even assaulted her. She has further alleged in the said letter, being Exhibit 50 that the respondent husband was having illicit relations and as he wanted to avoid paying

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maintenance to her, he left the house. She has further alleged that the respondent husband at the behest of his brother and sister-in-law was allegedly threatening to kill the appellant wife and the children.

¶128

The entire thrust of the cross-examination by the respondent husband

¶129

is on the gala business and documents pertaining to the same. Suggestion was made that she was receiving a sum of Rs.40 to 50 thousand per month from the investment made by him from the sale proceeds of a gala at Thane which was denied by her. The said witness has denied the suggestions made by the respondent husband with regard to alleged acts of cruelty and desertion. She has also denied the suggestion that she had filed a number of false complaints against the respondent.

¶130

The appellant examined her son as her witness. He has stated that in 1992 (when he was 20 years of age), he was forced by his father i.e. respondent husband to leave the job and keep a watch on his mother i.e. appellant wife, as she was a woman of bad character. He has stated that at

¶131

that time, his younger brother was taking education and was studying Instrumentation Engineering. He has further alleged that his father i.e.

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respondent left the home without informing them. He has stated that at the relevant time, he was 20 years of age. The said witness has done his Masters Degree in Management and has stated that his mother was of good character and that she had taken efforts to bring them up and had borne all there educational expenses. He has stated that they had a tough and hard life during those days and that it was difficult for them to make both ends meet. He has further stated that his father (respondent) had neglected his responsibility towards them and that he would abuse his mother in a filthy language and would even assault her without any reason. He has further alleged that the respondent had left home when his younger brother had attained the age of 18, so as to avoid paying maintenance to them. In his cross-examination, several suggestions were made on behalf of the respondent, which were denied by him.

¶137

The appellant wife has also examined a jeweller Mr. J in support of her case to show that the appellant had come to sell her jewelery at this shop. In his cross-examination, he has admitted that the purchase bills, which have been marked as Exhibit 103, do not mention the amount given to the appellant. Similarly, there is no signature of the appellant on the

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same. He has stated that he does not know the appellant and that had come to attend the said case pursuant to the Court Summons. The said witness was unable to furnish the books of accounts on the ground that they were spoilt. He has admitted that he does not recollect the exact date on which the appellant had come for the said transaction. He has denied the suggestion that he knew the appellant for a long time and that he had come to the Court only to falsely depose in her favour and to file bogus documents in Court.

¶143

The learned Judge of the Family Court after considering the evidence on record by Judgment dated 1^st March, 2005 granted decree of divorce on the grounds of cruelty and desertion to the respondent husband. It is pertinent to note, that the appellant has not challenged the dismissal of the C-130 of 1995 which was for maintenance and therefore we confine ourselves to the challenge in this Appeal i.e. grant of decree of divorce to the respondent on the grounds of cruelty and desertion.

¶144

We have heard Mr. A. G. Toraskar, learned counsel appearing for the Appellant wife and Mr. S. G. Deshmukh, learned counsel appearing for the

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Respondent husband.

The learned counsel for the appellant wife has taken us through the pleadings, notes of evidence and other documents and record. He urged that the respondent husband had failed to establish either cruelty or desertion by the appellant wife. He urged that to the contrary, it was the respondent husband who treated the appellant wife with cruelty and it was the respondent husband who deserted her and therefore he must be precluded from taking advantage of his own wrong. It is pertinent to note that the appellant wife admitted the documents at Exhibit – 27 i.e. letter addressed to Mr. H along with a letter addressed to the respondent wherein unfounded and unsubstantiated allegations with regard to illicit relations of the respondent with his sister and sister-in-law were made. It was urged by the learned counsel that the said letter i.e. Exhibit 27 was sent by the appellant as a counter blast to the alleged acts of cruelty by the respondent and the allegations made by him against the appellant. He, therefore, urged that the Appeal be allowed.

¶151

Per contra, Mr.S.G.Deshmukh, learned counsel for the respondent

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supported the impugned Judgment granting decree of divorce on the ground of cruelty and desertion. He submitted that the appellant wife had made life impossible for him by her alleged acts of cruelty which compelled the respondent husband to leave the matrimonial house. It was contended by the learned counsel for the respondent, that the letter dated 25^th October, 1994 at Exhibit 27 addressed to the respondent through his friend Mr. H was extremely vulgar, filthy and derogatory. It was contended that the contents therein had caused the respondent tremendous mental trauma, pain and agony, as the allegations were totally unfounded, unsubstantiated and baseless. He urged that the learned Judge, Family Court has rightly accepted the evidence with regard to cruelty and desertion and thus sought dismissal of the Appeal.

¶157

We have given our anxious considerations to the evidence and material on record and more particularly documents at Exhibit 27 i.e. letters dated 25^th October, 1994 and 3^rd November, 1994 written to Mr. H and the respondent. According to us, the letter at Exhibit 27 dated 3^rd November, 1994 addressed to the respondent husband which was sent along with a covering letter dated 25^th October, 1994 to Mr. H, on the address of Mr. H is

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a damning piece of evidence against the appellant wife. At the cost of repetition, it is necessary to mention that the said letters at Exhibit – 27 have been admitted by the appellant wife and therefore the contents therein can be read in evidence to decide whether the language in the said letter would amount to cruelty as contemplated under section 13 (ia) of the said Act. As has been stated earlier, the respondent has examined Mr. H to prove the letters at Exhibit 27, sent to his residence and which were opened and read by him. We have perused the letters and considering the nature of allegations and the vulgar and scandalous language used in the said letter, we do not intend to reproduce the same. Suffice it to say, that the letters are extremely vulgar, abusive, obscene and derogatory. By the said letter, the appellant wife has made wild and baseless allegations against the respondent husband that he was having illicit relations with his own sister and sister-in-law. The said letter at Exhibit 27 has not been denied by the appellant wife nor has she substantiated the allegations set out in the letter. To the contrary, she has stated that the said letters were sent as a counter blast to the ill-treatment suffered by her at the hands of the respondent and that he had no reason to be shocked. In addition to the said letter at Exhibit 27, there is another letter dated 8^th February, 1995, addressed to the Deputy

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Commissioner of Police, Bhandup Police Station, sent by the Appellant, which is at Exhibit – 50. In the said letter, apart from stating that the respondent had assaulted her, she has stated that the respondent had prepared a master plan, 18 months ago, to kill her, so that there was no impediment for continuing with the illicit relation.

¶168

Before we analyse the evidence of cruelty adduced by the respondent, it would be necessary to consider as to which acts constitute 'cruelty'. The expression 'cruelty' have been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. 'Cruelty' thus is a course or conduct of one, which adversely affects the other. It may be mental or physical, intentional or unintentional. It is a question of fact and degree. If it is physical, the Court will have no problem in determining the same. However, if it is mental cruelty, the enquiry must begin with the nature of cruel treatment and the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ofcourse ultimately, it is a matter of inference to be drawn by taking into account the nature of conduct and its effect on the complaining

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spouse. The conduct complained of must be “grave and weighty” so as to come to a conclusion that the spouse cannot be reasonably expected to live with the other spouse. It must be more serious than “ordinary wear and tear of married life.” Mental cruelty must consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbances of mental peace of the other party.

¶174

It would be apposite to refer to the decision, in the case of Naveen

¶175

Kohli v/s. Neelu Kohli¹ where the Apex Court held that cruelty is a course/conduct of one which adversely affects the other. The expression cruelty as appearing in Section 13, clearly admits in its ambit and scope such acts which even cause mental agony to the aggrieved party. Intention to be cruel is not an essential element of cruelty as envisaged under section 13(1) (ia) of the Act. It is sufficient if the cruelty is of such a nature that it becomes impossible for the spouses to live together. An inference can be drawn from the attending facts and circumstances taken cumulatively. The Apex Court, infact in the case of Vijaykumar Ramchandra Bhate vs. Neeta Vijaykumar Bhate² was required to consider “whether the

¶176

2 AIR 2003 SC 2462

1 2006 SCC 1675

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averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty to claim decree of divorce under section 13(1) (ia) of the Hindu Marriage Act”. The Apex Court in paragraph 7 of the said Judgment has observed as under:

¶183

“The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of crossexamination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.”

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Applying the aforesaid ratio to the facts of the present case and considering the fact, that the letters at Exhibit 27 have not been disputed by the appellant wife, we are inclined to observe, that the allegations made therein by the appellant wife would certainly constitute mental cruelty to the respondent husband. The allegations made in the said letter written at Exhibit 27, are extremely serious, vulgar, filthy and wild and are of such a nature that any person against whom such wild, serious and unsubstantiated allegations are made, is bound to undergo mental pain, agony and suffering. The allegations made in the said letter written to the respondent clearly suggest that the husband was having illicit relations with his own sister and sister-in-law. The vulgar and filthy language used therein restrains us from reproducing the same in the Judgment. We are firmly of the opinion that the said allegations and language used therein, would constitute mental cruelty which is of such a nature that the respondent husband cannot reasonably be expected to live with the appellant wife thereafter. The position of law is well settled that levelling disgusting accusations of extra-marital relationship amounts to grave assault on the character, honour, reputation, status as well as the health of a person. Such

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aspersions which are unsubstantiated constitute worst form of cruelty, sufficient by itself to constitute cruelty in law. The appellant wife has not even made an attempt to substantiate the allegations made in Exhibit – 27.

¶194

In addition to the letter at Exhibit 27, the evidence adduced by the respondent husband clearly shows disaffection and refusal of the appellant wife to cohabit with the respondent husband. The instances narrated by the respondent husband in his evidence is consistent and clearly shows that the hostile attitude and persistent non cooperation of the appellant wife had made life impossible for him, as a result of which he was constrained to leave his own house and find an alternate accommodation. The appellant in a letter (Exhibit 50) addressed to the Deputy Commissioner of Police, Bhandup Police Station has devoted one entire paragraph to the allegations regarding the illicit relations of the respondent and his plan to eliminate her on account of the same. Both the spouses have alleged cruelty against the other. However, respondent husband has sought divorce on the ground of cruelty and desertion and the appellant wife curiously though has alleged cruelty by the respondent has not claimed divorce or judicial separation. On perusal of the evidence of the appellant wife and her witnesses, we find that

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the evidence does not inspire confidence, is bereft of details and is inconsistent and contradictory with regard to the grounds of 'cruelty' and 'desertion' raised by the respondent. The appellant wife had also filed on record the police complaints lodged by her at Exhibit 55. According to her, the respondent used to call her and abuse her. However, it is relevant to note that there is not a whisper with regard to the said allegations in the appellant's petition for maintenance. Ordinarily, mental cruelty, in our view, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but would really go by the intensity, gravity and stigmatic impact it may have, when meted out even once and the deleterious effect of it on the mental attitude of a spouse. Considering the allegations and the incidents enumerated in detail by the respondent husband in the evidence, in our opinion they would cumulatively constitute 'cruelty' and which became fait accompli the day the appellant sent the letters at Exhibit 27. In the present case, we are of the opinion that the Family Court has rightly come to the conclusion that the appellant husband is entitled to a decree of divorce under section 13(1) (ia) of the said Act.

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Now coming to the second issue i.e. the ground of desertion under section 13(1) (ib) on which, the Family Court has granted the decree of divorce.

¶205

Once we have come to the conclusion, that the appellant wife made it impossible for the respondent husband to live in the house, by her conduct, it can be safely inferred that he was compelled to abandon the house on account of the said conduct.

¶206

The Apex Court in the case of Adhyatma Bhattr Alwar v/s.

¶207

Adhyatma Bhattar Sri Devi³ has dealt with the concept of desertion in the context of matrimonial law. It is observed that there is no comprehensive definition of the term 'desertion' and that it was wide enough to include willful neglect.

¶208

In order to prove desertion it is necessary to prove two elements i)

¶209

the absence of consent and ii) the absence of conduct giving reasonable cause to the spouse to leave the matrimonial home to form the necessary

3 AIR 2002 SCC 88

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intention. In Savitri Pandey vs Prem Chandra Pandey⁴ the Apex Court held that desertion under section 13(1) (ib) means intentional permanent forsaking and abandonment of one spouse by the other without the other's consent and without reasonable cause. 'Desertion' is not a single act complete in itself, it is a continuous course of conduct to be determined in the facts and circumstances of each case. The onus was on the respondent to prove that he was not guilty of such conduct and that he was not taking advantage of his own wrong as contemplated under Section 23 of the said Act. Inference of desertion has to be made on balance of probabilities. It is held in the case of Laxman v/s. Meena AIR 1964 SC 40 that in cases of desertion, the factum as well as the animus deserendi have to be proved. The burden of proof was therefore on the respondent husband. The learned Judge rightly came to the conclusion that in the present case the factum of desertion is proved by the respondent husband and that the respondent husband had left his own house because of the conduct of the appellant wife. As stated above the respondent had proved the acts of cruelty by the appellant wife and that it would not be possible for him to cohabit with her.

¶216

The evidence on record clearly shows that the appellant wife with her

4 AIR 2002 SC 591

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conduct had made it impossible for the respondent husband to live in the matrimonial home and as a result of which he was compelled to abandon the house. The learned Family Court has rightly come to the conclusion that when the appellant was cross-examined on the point, she had initially denied taking keys but had thereafter admitted that she had asked the respondent husband to call prior to his arrival in the house. The said admission clearly indicates that the respondent did not have the keys of the house and infact corroborated his statement that he could not enter the house unless the respondent was in the house.

¶223

Considering the aforesaid, we are of the opinion that the decree of divorce also ought to have been confirmed under section 13(1) (ib) of the said Act.

¶224

It appears that the learned Judge, Family Court, Bandra, Mumbai has granted Rs.1,000/- towards maintenance from the date of the order i.e. 1^st March, 2005 under Section 25 of the said Act. Section 25 of the said Act (relevant sub-sections) reads thus :-

¶225

(1) Permanent alimony and maintenance.-(1) Any court exercising jurisdiction under this Act may, at

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the time of passing any decree or at any time subsequent thereto, on application made to it for the purposes by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immoveable property of the respondent.

¶231

(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub- section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

¶232

(3) ----- ---- -----

¶233

The learned Judge, rejected the appellant wife's application petition being M.J. Petition No. C-130 of 1995, by the same Judgment dated 1^st March, 2005 and the same has not been challenged by the appellant nor has

¶234

any other application for enhancement of maintenance been filed in this Court. In view of Section 25 of the said Act, we confirm the said order

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directing the respondent husband to pay the amount of Rs.1,000/- towards maintenance. However, we make it clear that the appellant is not precluded from preferring an application for modification of the Order of Maintenance under Section 25 of the said Act. We also make it clear that we have not adjudicated on the appellants right to claim maintenance, as it was not the subject matter of challenge before us.

¶240

Accordingly, we pass the following order :-

¶241

(i) Family Court Appeal No.16 of 2006 is dismissed and the Judgment and Decree dated 1^st March, 2005 passed by the Family Court, Bandra, Mumbai is confirmed. The decree of divorce is upheld.

¶242

(ii) The respondent husband shall pay permanent alimony of Rs.1,000/- per month, towards the maintenance as directed by the Family Court, Bandra, Mumbai by the impugned Judgment and Decree dated 1^st March, 2005. However, the appellant wife is at liberty to apply to the Family Court for enhancement of the maintenance in accordance with subsection (2) of Section 25 of the said Act.

¶243

(REVATI MOHITE DERE, J.) (A. S. OKA, J.)

¶244

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Manisha Rajaram Raut v. Rajaram Tukaram Raut

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Manisha Rajaram Raut v. Rajaram Tukaram Raut

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