Partly allowed

Shri. Sandeep Kaluram Vipat-Bhosale v. Sau. Seema Snadeep Vipat-Bhosale

Bombay HC3 Apr 2014FCA/12/2007

Case brief

AI extract

What is this about?

Appellant appealed the dismissal of his divorce petition and setting aside the decree of restitution of conjugal rights. The court confirmed the divorce dismissal due to lack of evidence for cruelty and desertion. Restitution of conjugal rights was set aside due to insufficient proof of attempts to resume cohabitation.

What did the court decide?

Divorce petition dismissal confirmed; restitution of conjugal rights counter-claim dismissed; maintenance decree set aside. Husband ordered to pay maintenance till 31st Oct 2014 pending fresh applicat

Shri. Sandeep Kaluram Vipat-Bhosale Vs Sau. Seema… — Maintenance and Alimony | Bombay HC (2014)

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FCA-12.07

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.12 OF 2007

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Shri Sandeep Kaluram Vipat-Bhosale. .. Appellant Vs Sau. Seema Sandeep Vipat-Bhosale. .. Respondent

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Shri sanjiv A. Sawant along with Shri Ketan Joshi for the Appellant. Ms. Seema Sarnaik for the Respondent.

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CORAM : A.S. OKA & A.A. SAYED, JJ DATED : 3RD APRIL 2014

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ORAL JUDGMENT ( PER A.S. OKA, J )

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By this Appeal, the Appellant husband has taken an exception to the judgment and decree dated 12^th July 2006 passed by the learned Judge of the Family Court at Pune.

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The Appellant filed a Petition on 16^th June 2004 praying for a decree of divorce on the ground of cruelty and desertion under Section 13-1(ia) and (ib) of the Hindu Marriage Act, 1955. The Respondent contested the Petition by filing a counter claim for decree of restitution of conjugal rights. By the said impugned judgment and decree, the learned Judge of the Family Court, Pune dismissed the Petition for divorce filed by the Appellant-husband and allowed the counter claim of the Respondent for restitution of conjugal rights. The

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2 FCA-12.07

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learned Judge of the Family Court directed the Appellant to pay maintenance at the rate of Rs.4,000/- per month to the Respondent wife till the restitution of conjugal rights.

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Before we advert to the submissions made across the bar, we must note here that the earlier Bench (to which one of us (A.S. Oka, J) tried to bring about amicable settlement between the parties. We must also note that both the learned counsel appearing for the parties tried their level best to bring about the settlement between the parties, but the efforts made by the learned counsel appearing for both the parties could not succeed and ultimately, we have taken up this Appeal for final disposal.

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The learned counsel appearing for the Appellant husband has taken us through the averments made in the Petition as well as the evidence of the Appellant and the evidence of the second witness examined by the Appellant. His submission is that various allegations made in the Petition as regards the consistent conduct of the Respondent have been duly proved in the evidence of the Appellant. He urged that the cumulative effect of the conduct of the Respondent as reflected from the evidence of the Appellant needs to be considered. He urged that the case of the Appellant regarding causing mental cruelty has been established. He urged that even on the ground of

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desertion, there is evidence on record to show that from May 2002, for no reason, the Respondent deserted the Appellant. He urged that the fact that the Respondent deserted the Appellant from May 2002 has been proved from the evidence of the witness Santosh Mansingh Gaikwad. He, therefore, submitted that the decree of divorce ought to have been passed on both the grounds. He urged that the parties have no issue and in fact, this is a case where there is an irretrievable breakdown of marriage. He urged that this fact ought to have been considered by this Court while deciding this Appeal arising out of a Petition for divorce filed by the Appellant husband. He submitted that the decree of restitution of conjugal rights passed on the counter-claim of the Respondent is without any basis and the same needs to be set aside.

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Learned counsel appearing for the Respondent wife supported the decree of dismissal of the Petition filed by the Appellant husband. She invited our attention to the fact that the notice of the Petition filed by the Appellant on 16^th June 2004 was served to the Respondent in November 2004. Inviting our attention to the pleadings in the written statement of the Respondent as well as her evidence, she urged that on 8^th November 2004, the Appellant accompanied the Respondent to the house of her parents and promised to come back on the day of Padva in Diwali. She pointed out that on 15^th November

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2004 and on 17^th November 2004, attempts were made by the Respondent to go back to the matrimonial home and resume cohabitation. She pointed out that even on 19^th November 2004, an attempt was made by the Respondent to visit the matrimonial home when she was accompanied by Mr. and Mrs. Balkawade who were Mediators in the marriage. She urged that apart from the three unsuccessful attempts made by the Respondent to resume cohabitation which were defeated by the Appellant and his mother, the fact that the Appellant husband filed a Petition for divorce will have to be taken into consideration. She urged that it is not necessary for the Respondent to issue a notice to the Appellant before claiming a decree of restitution of conjugal rights. The learned counsel appearing for the Respondent, therefore, urged that no fault can be found in the decree of restitution of conjugal rights passed by the learned Judge of the Family Court.

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We have carefully considered the submissions. The question will be as regards the claim made by the Appellant husband for grant of divorce. We have perused the Petition filed by the husband as well as the affidavit in lieu of examination-in-chief which is virtually a replica of the Petition. The following are the allegations made in the Petition and the affidavit.

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FCA-12.07

(a) The Respondent wife used to get up every day at 8.30 to 9.00 a.m.;

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(b) The Respondent wife declined to perform household work;

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(c) Whenever the Appellant questioned the Respondent regarding her failure to do the household work, she used to cry and tel the Appellant that she was not happy to reside in the matrimonial home and she wanted to go back to her parent's home;

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(d) The Respondent used to threaten the Appellant that if she was forced to stay in the matrimonial home, she would cause harm to herself;

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(e) The Respondent left the matrimonial home and started staying in her parent’s house. In May 2002, the Appellant brought the Respondent back to the matrimonial home; and

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(f) After few days, the Respondent expressed that she would prefer to die rather than staying in the

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6 FCA-12.07

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matrimonial home. With a view to give an opportunity to the Respondent to improve her conduct, the Appellant started residing separately from his family along with the Respondent. It is alleged that even thereafter, the conduct of the Respondent did not improve and she went back to her parents.

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The first question is whether the allegations made in the Petition were substantiated by the Appellant by adducing cogent evidence. The case made out in the Petition and in the evidence is that the Appellant was only the son of his parents and that the Appellant and the Respondent started cohabiting in the house of the Appellant’s parents. The first part of the allegations is of general nature wherein it is alleged that the Respondent was in the habit of getting up late in the morning i.e. at 8.30 to 9.00 a.m., and that she was not doing the household work. The allegations made in the Paragraphs 4 and 5 of the Petition regarding threats given by the Respondent of causing injury or harm to herself could have been substantiated by the Appellant by examining one of his parents. However, the Appellant has not chosen to examine both of them. The best witnesses available to substantiate the contentions raised in Paragraphs 4 and 5 of the Petition [Clauses (c) and (d) above] have not been examined by the Appellant. Therefore,

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7 FCA-12.07

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we find no error with the view taken by the learned Judge of the Family Court at Pune that the allegations of cruelty were not established.

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As far as the ground of desertion is concerned, careful perusal of the Petition for divorce shows that prior to May 2002, The Respondent left the matrimonial home and went back to her parent's house. The Paragraph 5 records that in May 2002, the Appellant brought the Respondent back to the matrimonial home by persuading her. There is no specific pleading as to when the Respondent finally left the matrimonial home.

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On this aspect, it will be necessary to make a reference to the evidence of the witness Shri Santosh Gaikwad examined by the Appellant who claimed that he was a resident of the same building in which the Appellant was residing. He stated that he has not seen the Respondent since May 2002 in the matrimonial home. In the crossexamination, he admitted that he was a childhood friend of the Appellant. He admitted that he came before the Court to depose as the Appellant had called him.

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At this stage, we must note that the case of the Respondent is that on 8^th November 2004, the Appellant accompanied the Respondent from their matrimonial home to her parent’s house. It is

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her case that the Appellant promised her to come back on the Padwa day in Dawali but he did not come back. There is a specific assertion to that effect even in Paragraph 8 of the affidavit in lieu of the examination-in-chief of the Respondent-wife. She has stated in Paragraph No.10 of her affidavit in lieu of the examination-in-chief that from 8^th November 2004, she is staying with her parents. We have perused the cross-examination of the Respondent made by the learned counsel appearing for the Appellant. There is no serious challenge to the statements made in Paragraph Nos. 8 and 10 of her examination-inchief. Thus, it can be inferred that the Appellant and the Respondent were staying in the matrimonial home till 8^th November 2004. Hence, the claim of the Appellant that the Respondent deserted him from May 2002 is not correct.

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Moreover, we find that before filing of a Petition for divorce, at no stage, the Appellant called upon the Respondent by writing a letter to resume cohabitation. Apart from the findings recorded by the Trial Court, we must note here that considering the unchallenged versions of the Respondent that the cohabitation continued till 8^th November 2004, the period of desertion of two years provided in the statute was not completed when the Petition was filed as the Petition for divorce was filed on 16^th June 2004. Therefore, we find that the ground of desertion was not substantiated. Therefore, it

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9 FCA-12.07

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is not necessary to find fault with that part of the judgment and decree passed by the learned Judge of the Family Court at Pune by which the Petition for divorce filed by the Appellant was dismissed.

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As far as the claim for restitution of conjugal rights is concerned, we have already accepted the case made out by the Respondent wife that there is evidence on record to show that the cohabitation continued till 8^th November 2004. The learned counsel appearing for the Respondent pointed out that the Respondent was served with a copy of the Petition for divorce filed by the Appellant on 20^th November 2004. We must note here that the written statementcum-counter claim has been filed by the Respondent wife on 28^th December 2004. In the written statement and in particular Clause (d) of Paragraph 11 thereof, the Respondent has stated that on 8^th November 2004, the Appellant accompanied the Respondent to her parent’s house and promised to come back on the Padwa day in Diwali. However, the Appellant failed to turn up. The Respondent tried to contact the Appellant on telephone but the Appellant did not respond. She went to the matrimonial home on 15^th November 2004 when the Appellant and his mother did not allow her to enter the matrimonial home. On 17^th November 2004, the Respondent claims that she accompanied by her mother again visited the matrimonial home when the Appellant and his mother did not allow her to enter the matrimonial

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ash 10 FCA-12.07

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home. Again on 19^th November 2004, the Respondent accompanied by Mr. and Mrs. Balkawade, the Mediators in the marriage, ventured to visit the matrimonial home when the Appellant and his mother again did not allow the Respondent to enter the matrimonial home. What we have noticed from the case of the Respondent is that the parties continued their cohabitation till 8^th November 2004. The reliance is placed by the Respondent on the alleged attempts made by her to resume cohabitation by visiting the matrimonial home on 15^th , 17^th and 19^th November 2004. We must note here that the Respondent has not chosen to examine her mother as a witness. She has also not chosen to examine Mr. and Mrs. Balkawade, who allegedly accompanied the Respondent at the time of her visit to her matrimonial home on 19^th November 2004. We have carefully perused the cross-examination of the Appellant. The Appellant denied that the Respondent visited his house along with her mother on 17^th November 2004. He also denied the allegation that on 19^th November 2004, the Respondent visited his house along with Mr. and Mrs. Balkawade. In view of the said denial, it was not necessary for the Respondent to examine these witnesses.

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The claim of the Respondent for restitution of conjugal rights is founded on the footing that till 8^th November 2004, the parties cohabited together and though the Respondent made efforts on 15^th , 17^th and 19^th November 2004 to resume cohabitation, it was the

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11 FCA-12.07

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Appellant and his mother who had prevented the Respondent from resuming cohabitation. For the reasons set out above, it is not possible for us to hold that the Respondent made attempts to resume on 15^th 17^th and 19^th November 2004. In fact, an adverse inference will have to be drawn against the Respondent on account of her failure to examine her mother and Mr. and Mrs.Balkawade as witnesses. It is not her case that after 19^th November 2004, she made any effort or overt acts to resume cohabitation. The counter-claim for restitution of conjugal rights was filed on 28^th December 2004.

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Therefore, only on the ground that the Appellant abandoned the Respondent, the decree for restitution of conjugal rights cannot be passed as the Respondent has failed to prove the case pleaded by her. Therefore, the judgment and decree to the extent of grant of the decree for restitution of conjugal rights cannot be sustained and the same will have to be set aside.

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We must note here that the counsel for the Appellant submitted that there is an irretrievable breakdown of marriage as the parties are residing separately for a considerable long time and as all the efforts for reconciliation have failed. We must note here that, that is not the ground provided in the Hindu Marriage Act, 1955 to pass a decree for divorce. At highest, it would have been a circumstance

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12 FCA-12.07

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which could have been considered provided the Appellant had adduced the satisfactory evidence in support of ground of cruelty.

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By the impugned judgment and decree, the maintenance of Rs.4,000/- per month was made payable by the Appellant to the Respondent till the Appellant resumes matrimonial life. As a consequence of setting aside the decree of restitution of conjugal rights, the decree of maintenance will have to be set aside as no such decree can be passed under Section 25 of the Hindu Marriage Act, 1955 upon dismissal of the Petition for divorce filed by the Appellant. However, it will be open for the Respondent to avail of the remedies available in law for grant of alimony/maintenance. To enable the Respondent to adopt appropriate remedy, we propose to continue the decree of maintenance till 31^st October 2014.

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Hence, we pass the following order:

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ORDER :

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(a) The impugned decree to the extent of dismissal of the Petition for divorce filed by the Appellant is hereby confirmed;

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(b) The decree of restitution of conjugal rights passed on the written statement-cum-counter claim of the

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FCA-12.07

Respondent-wife is hereby set aside and the counter claim is dismissed. Consequently, the decree directing the Appellant to pay maintenance of Rs.4,000/- per month to the Respondent is set aside;

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(c) However, it will be open for the Respondent to file appropriate proceedings for grant of maintenance. To enable the Respondent to do so, we direct the Appellant to continue to pay the maintenance at the rate of Rs.4,000/- per month to the Respondent till 31^st October 2014;

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(d) The learned counsel appearing for the Respondent states that the Application made by the Respondent for grant of maintenance under Section 125 of the Code of Criminal Procedure Code, 1973 is pending. If that be so, the Respondent is free to prosecute that Application;

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(e) The Appeal is partly allowed on above terms with no orders as to costs.

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(A.A. SAYED, J)

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( A.S. OKA, J )

Shri. Sandeep Kaluram Vipat-Bhosale v. Sau. Seema Snadeep Vipat-Bhosale

Case brief

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What did the court decide?

Shri. Sandeep Kaluram Vipat-Bhosale v. Sau. Seema Snadeep Vipat-Bhosale

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