Dismissed

Milind Anant Palse v. Yojana Milind Palse

Bombay HC10 Jun 2014FCA/106/2005

Case brief

AI extract

What is this about?

The Bombay High Court dismissed the husband's appeal for divorce on grounds of cruelty. The court held that the alleged suppression of surgical details and general behavioral issues amounted to wear and tear, and rejected the irretrievable breakdown argument under Section 13 of the Hindu Marriage Act.

What did the court decide?

The appeal was dismissed; no decree of divorce was granted.

Milind Anant Palse Vs Yojana Milind Palse — Matrimonial and Divorce | Bombay HC (2014)

fca-106.05

ash

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

¶5

FAMILY COURT APPEAL NO.106 OF 2005

¶6

Milind Anant Palse,	)
Age 37 years, Occu. Service,	)
Residing at C/o. Bholenath Ningmire,	)
Shivanand Mangal Kentea,	)
257 Shukrawar Peth, Pune – 411 002.	)..	Appellant
Versus
Mrs. Yojana Milind Palse,	)
Age 32 years, Occ Service,	)
Residing at C/o. Smt. Sandhya Jadhav,	)
Chandramrunal Bungalow, First Floor,	)
C-34, Shahu Society, Pune Satara Rd.,	)
Pune – 411 037. –	)..	Respondent

¶7

Shri G.M. Savagave for the Appellant. Ms. Apeksha Vora, appointed Advocate for the Respondent. --

¶8

CORAM : A.S. OKA & M.S. SONAK, JJ DATE ON WHICH SUBMISSIONS WERE HEARD : 13TH FEBRUARY 2014 DATE ON WHICH JUDGMENT IS PRONOUNCED: 10TH JUNE 2014 JUDGMENT ( PER A.S. OKA, J )

¶9

. By this Appeal, the Appellant husband has taken an exception to the Judgment and Decree dated 31^st July 2004 passed by the learned Judge of the Family Court, Pune on a Petition for divorce

fca-106.05

ash

filed by him. We must note here that before the Appeal was heard on merits, we had suggested to the parties that this was a fit case for amicable settlement as the Appellant husband and the Respondent wife have been residing separately for a considerably long time. The parties exchanged various offers but could not come to terms. Though we heard the Appeal on 13^th February 2014, we had informed the parties that the judgment will not be pronounced till Summer Vacation with a view to give one more opportunity to the parties to amicably settle the dispute. However, as the parties could not come to terms, we are proceeding to pronounce the judgment.

¶14

Brief reference to the averments made in the pleadings will be necessary. The parties married according to the Hindu Vedic Rites on 12^th March 2000. In the Petition for divorce filed by the Appellant husband, it is stated that the Respondent wife had registered her name with a marriage bureau of the Digambar Jain Saitwal Seva Mandal at Solapur. It is alleged in the Petition that in February 1997, the Respondent had undergone a surgery of Hypertrophic Breasts in Mumbai but the said information was not disclosed by her while registering her information with the marriage bureau of Jain Saitwal Seva Mandal. It is alleged that the said material information was suppressed by the Respondent wife before solemnization of the marriage and on being questioned by the Appellant husband after the

¶15

3 fca-106.05

¶16

ash

¶17

marriage, the Respondent wife responded that there was nothing serious about the said surgery.

¶18

In the Petition filed by the Appellant, it is alleged that after the marriage, the Respondent started putting on weight. It is alleged that though the Appellant tried to persuade the Respondent to take medical treatment, she declined to cooperate. It is alleged that due to the fact that the Respondent was overweight and due to ailment suffered by her, the Appellant could not enjoy the pleasures of the matrimonial life. It is alleged that the Respondent always declined to do household work and the Appellant was required to do the said work. It is alleged that the Respondent never fulfilled the expectations of the Appellant. It is alleged in the Petition that the Respondent wife never performed her duties as a wife. Reliance is placed on the incident of 13^th June 2000 about the ill-treatment given by the Respondent to the Appellant's brother. The instances of alleged misbehaviour of the Respondent with the Appellant at the public place have been incorporated in the Petition filed by the Appellant.

¶19

It is alleged by the Appellant husband that the Respondent was short-tempered and she never loved him. It is alleged that the Respondent used to insult the Appellant. It is alleged that on some occasion, out of anger, the Respondent caused injuries to herself. It is

fca-106.05

ash

alleged that in August 2001, the Respondent lodged false police complaints against the Appellant and his family members. It is alleged that the Respondent threatened to commit suicide with a view to see that the Appellant is arrested.

¶24

It is pointed out that the Respondent served a legal notice dated 29^th January 2002 to the Appellant which was replied by the Appellant on 9^th June 2002. A decree of divorce was claimed by the Appellant husband on the ground of cruelty under Clause (i-a) of Subsection (1) of Section 13 of the Hindu Marriage Act, 1955 ( for short “the said Act”).

¶25

A Written Statement was filed by the Respondent wife dealing with the allegations made in the Petition. Material allegations made in the Petition were denied by the Respondent. In the Written Statement, it was contended that in the prescribed form provided by the marriage bureau, there was no column for disclosing the information regarding surgery underwent by her. It is alleged that the information regarding the surgery was disclosed by her family members to the Appellant and his family members before the solemnization of marriage.

fca-106.05

ash

Before we deal with the submissions on merits, it will be necessary to make a reference to the cross-examination of the Appellant made by the Advocate for the Respondent and in particular Paragraph 25 thereof. In Paragraph 25, the Appellant has specified the grounds on which he is seeking divorce. Paragraph 25 of the cross-examination of the Appellant reads thus:

¶30

“25. I am demanding divorce from respondent on following grounds:-

¶31

(i) Operation for her breast;

¶32

(ii) No healthy sexual relations were established;

¶33

(iii) Respondent betrayed me about her operation;

¶34

(iv) Respondent is adamant;

¶35

(v) Respondent is quarrelsome;

¶36

(vi) Argued with me for long time on petty reasons.

¶37

As the Appellant himself has crystallized the grounds on which he has sought divorce, the submissions of the learned counsel appearing for the parties will have to be considered on the basis of the said grounds set out by the Appellant himself.

¶38

The learned counsel appearing for the Appellant submitted that the allegations made in the Petition were substantiated by the Appellant by adducing evidence. He urged that the allegations made by the Appellant do not constitute mere wear and tear of marriage. He

¶39

fca-106.05

¶40

ash 6

¶41

urged that the allegations constitute the acts of cruelty. He invited our attention to the evidence of the Appellant, the Respondent and other witnesses and urged that it is virtually an admitted position that the Respondent suppressed the surgery underwent by her before solemnization of the marriage. He urged that the instances of behaviour reproduced by the Appellant in his pleadings and the evidence constitute the mental cruelty. Lastly the learned counsel urged that this is a case of irretrievable break down of the marriage. He submitted that this fact will have to be borne in mind by the Court while dealing with the prayers made by the Appellant. Learned counsel appearing for the Respondent supported the impugned judgment and decree.

¶42

We have carefully considered the submissions. We have perused the pleadings and the oral as well as documentary evidence on record. The Appellant examined himself by filing his affidavit in lieu of the examination-in-chief. He examined his father Shri Anant Ganesh Palse, his sister Smt. Madhavi Dhanpal Unkalkhope and his friends Shri Kumar Mohan Kulkarni and Shri Pravin Hanumant Pawar as witnesses. The Respondent examined herself and did not examine any other witness.

fca-106.05

ash

We have already quoted what the Appellant stated in Paragraph 25 of his cross-examination made by the Advocate for the Respondent. The main ground urged is as regards the suppression of the breast surgery underwent by the Respondent. The second ground set out by the Appellant in Paragraph 25 has some co-relation with the first ground. It is alleged that as a result of ailment suffered by the Respondent, after the marriage, she went on putting weight and that is the reason why the Appellant was deprived of the pleasures of the matrimonial life. The third ground set out in the Paragraph 25 of his deposition by the Appellant again relates to the surgery underwent by the Respondent.

¶47

As regards the alleged suppression by the Respondent of the surgery, the material averments are in Paragraph 2 of the Petition. The allegation is that the information about the surgery was not disclosed by the Respondent to the Appellant prior to the solemnization of the marriage and the said information was not furnished to the marriage bureau of Jain Saitwal Seva Mandal. It will be necessary to make a reference to Paragraph 26 of the cross-examination of the Appellant which reads thus:

¶48

“26. Respondent did not inform me about her breast operation before marriage. I had enquired before marriage with respondent about any major operation. She did not inform me about any operation. It is true that it is not pleaded nor deposed by me that

fca-106.05

ash

respondent did not inform me about her operation done before marriage, even though I asked. Shown Exh.46, there is no column of medical treatment so far as particulars of bride and bridegrooms are concerned. Even in Exh.47 there is no such column. Even in Exh.48 there is no column of medical particulars. It is true that I met respondent prior to marriage at her friend Shubhangi Khasnis's house. We talked for 2 ½ hours. I enquired with respondent about any of her operation. I cannot give any reason why this is not pleaded nor deposed by me.”

¶53

Though the Appellant did not plead in his Petition as well as affidavit in lieu of the examination-in-chief that before marriage, he had inquired with the Respondent whether she had undergone any major operation, it is alleged that when the Appellant asked her, the Respondent did not disclose the information. The said case made out is clearly an afterthought which has no foundation in the pleadings. A case was sought to be made out that the Appellant had met the Respondent prior to the solemnization of the marriage in the house of one Shubhangi Khasnis for 2 and ½ hours. Even this case made out by the Respondent is a new case which has no foundation in the pleadings. Moreover, from the perusal of the cross-examination of the Respondent wife made by the Advocate for the Appellant, we find that the case sought to be made out in Paragraph 26 quoted above was not specifically put to the Respondent. The Appellant accepted that in the form provided by the marriage bureau, there was no column for disclosing surgery or medical treatment. Therefore, the case made out by the Appellant regarding suppression of the material fact by the

¶54

9 fca-106.05

¶55

ash

¶56

Respondent has been rightly discarded by the learned Judge of the Family Court, Pune.

¶57

We must note here that the Appellant's sister Mrs. Madhavi Dhanpal Unkalkhope who has been examined as a witness is a practicing Advocate. In Paragraph 34 of the cross-examination, the Appellant admitted that his sister Madhavi is an Advocate. It will be necessary to make a reference to what is stated by the Appellant in Paragraph 34 of the cross-examination which reads thus:

¶58

“34. …..It is true that I had her medical papers with me before 10/5/01 I know that Section 12 H.M.Act deals with nullity of marriage. It is stated in my affidavit that my with respondent has become a deadmarriage according to me it means that relations between me and the respondent are nominal. My sister advised my father that paper can be produced u/s 12 of Hindu Marriage Act if husband and wife resides together. I had document to demand divorce of nullity of marriage. It is not true that I had decided to take divorce from respondent before 2001.”

¶59

The said admission shows that even before 10^th May 2001, the Appellant was possessing the documents in relation to the medical treatment undergone by the Respondent. It appears that the Appellant's father had already sought advise from the Appellant's sister regarding use of the said medical record for obtaining divorce. At this stage, it will be necessary to make a reference to the evidence of the Appellant's father. In paragraph 10 of his cross-examination, the Appellant's father stated thus:-

fca-106.05

ash

“10. …..It is true that respondent and her family members told us that she has no physical defect. Petitioner went for honeymoon on 13/14^th March, 2000. They returned on 19/20^th March, 2000. It is true that petitioner did not ask respondent about he operation before me. I did not take respondent to any Doctor for check up. I had advised petitioner on phone the name of Dr. Uttam Khare for taking respondent. I did not go to Dr. Khare with respondent. It is true that petitioner had respondent's medical papers. I did not feel it necessary that her papers be shown to Doctor. I had seen the papers. I had not seen medical papers of respondent before writing Exh.49. I wanted certificate from Dr. Khare as stated in Exh.49 for getting divorce for my son. I have no certificate from any Doctor that respondent can have the same disease again. Respondent had given all her medical papers to petitioner. Respondent had given papers to petitioner before October 2000. I did not try to take opinion of any Doctor before October 2000. My Advocate advised me that for taking divorce on medical ground petition is to be fled within one year of the marriage. I have no medical document that respondent was medically unfit. My advocate advise that papers shown to him were sufficient for obtaining divorce. We took 22 months to file present petition after October 2000 to convince respondent to take divorce by mutual consent. First meeting was at Jaisingpur in October 2000.”

¶64

At this stage, it will be necessary to again go back to the cross-examination of the Appellant made by the Advocate for the Respondent. In Paragraphs 19 and 20, the Appellant husband has stated thus:

¶65

“19. We had physical relations during Honeymoon as per custom. I was not satisfied in Honeymoon for economic, physical and mental reasons. Due to respondent's operation of breast, I was not satisfied

fca-106.05

ash

with physical relations. Respondent's weight was 84 Kgs. I was not attracted by her physic. Due to over weight respondent had black skin near sex organ and signs of injury. I was shocked to see the physical condition of respondent and could not perform sexual relations with her voluntarily. I could not get mentally involved with respondent as she quarreled with petty reasons. Respondent did not allow me to make enquiry for cheaper tour for Bangalore, Ooty and compelled me to book Mahavir Tours & Travels.

¶70

After returning from Honeymoon, I did not take respondent for physical examination to doctor. I did not measure weight of the respondent on the weighing machine. Mahavir Tours is of Jain People. I have no documentary evidence for physical, mental and financial cruelty of respondent.”

¶71

(Underline added )

¶72

Thus, he has admitted that the marriage was

¶73

consummated. The grievance of the Appellant appears to be about the excessive weight of the Respondent. In Paragraph 21 of the crossexamination, the Appellant admitted that he continued to cohabit with the Respondent and the said cohabitation was voluntary. He admitted that the Respondent had taken initiative for maintaining physical relations. In Paragraph 21, the Appellant has stated in the crossexamination that :

¶74

“21. Respondent initiated for physical relations. I also demanded sex from respondent. Statements in para – 3 Exh.33 from the portion “Respondent denied me physical satisfaction........ and was not interested in having a child” as correct. Doctor examined respondent but did not write down her observations. I did not demand certificate from Doctor for respondent's problem. I am not examining Dr. Nalini Patil. I have no documentary evidence to prove above

fca-106.05

ash

statements of my petition. It is not true that I deposed falsely that respondent denied me physical relations, that she was not interested in having a child.”

¶79

Therefore, the second allegation that no healthy sexual relations could be established is not substantiated and in any case, considering the admissions of the Appellant which are referred to above, the said allegation cannot constitute an act of cruelty.

¶80

As regards the allegation that the Respondent is quarrelsome and she argued with him for a long time on petty reasons, there is a word against word. For establishing the conduct on the part of the Respondent, the Appellant examined one Shri Kumar Mohan Kulkarni as a witness. He has deposed that on 21^st August 2001, he had visited the Appellant's house in the afternoon. He has alleged that he had seen the Respondent abusing the Appellant. His allegation is that the Respondent pushed the Appellant from his eating place. It is alleged that the Respondent left the house of the Appellant and brought the police. The Appellant examined Shri Pravin Hanumant Pawar as a witness, who deposed that the Respondent abused the Appellant while standing outside the house and threatened him that she will put him and his parents behind the bar. Both the witnesses being friends of the Appellant are interested witnesses. Therefore, their testimony has been rightly kept aside.

fca-106.05

ash

As indicated in earlier paragraph, the Appellant came out with a new case in his deposition. He has failed to substantiate allegations made by him against his wife which are of very serious nature. Therefore, it is very difficult to believe the testimony of the Appellant. The allegations that the Respondent being of quarrelsome nature and that the Respondent is adamant constitute the normal wear and tear of marriage and by itself no ground for divorce.

¶85

Therefore, we concur that the view taken by the learned Judge of the Family Court, Pune that the Appellant has not made out any ground to pass a decree of divorce on the ground of cruelty.

¶86

Even assuming that there is an irretrievable breakdown of marriage, under Section 13 of the said Act, the break down of the marriage is no ground to grant a decree of divorce. Unless one of the grounds set out in Sub-section (1) of Section 13 of the said Act is established, a decree of divorce cannot be passed.

¶87

Hence, we find that there is no merit in the Appeal and the same is accordingly dismissed.

¶88

( M.S. SONAK, J )

¶89

( A.S. OKA, J )

Milind Anant Palse v. Yojana Milind Palse

Case brief

What is this about?

What did the court decide?

Milind Anant Palse v. Yojana Milind Palse

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Amar Prakash Dubal Vs the Union of India, through Secretary, Ministry of Petroleum and Natural Gas and Ors.

Shri. Vishnu Balu Patil Vs the State of Maharashtra and Ors.

Shri. Suresh Shamrao Kamble Vs the State of Maharashtra, through Chief Secretary and Ors.

Uco Bank Vs Uco Bank Employees Union and Ors.

Vijay Shankar Patil and Ors. Vs the Divisional Manager, Uco Bank and Ors.

Vijay Shankar Patil and Anr. Vs Uco Bank Employees Union and Ors.