Allowed

Jating Shivappa Jamkhandi v. Lalita Jating Jamkhandi

Bombay HC23 Sept 2014FCA/181/2007

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a dismissal of a divorce petition filed on grounds of cruelty. The court held that the wife filing a false police complaint leading to the husband's overnight detention constituted mental cruelty, quashing the impugned decree.

What did the court decide?

Impugned judgment dismissed; marriage dissolved; appellant ordered to pay Rs. 3000/month maintenance to respondent.

Jating Shivappa Jamkhandi Vs Lalita Jating Jamkhandi — Matrimonial and Divorce | Bombay HC (2014)

fca181

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
FAMILY COURT APPEAL NO.181 OF 2007

¶5

Jating Shivappa Jamkhandi...Appellant
vs.
Lalita Jating Jamkhandi ...Respondent

¶6

Mr.M.A.Dudhane a/w Mr.S.S.Redekar for the Appellant
None for the respondent

¶7

CORAM : A.S.OKA, AND A.S.CHANDURKAR JJ.
DATE ON WHICH SUBMISSIONS ARE HEARD: AUGUST 8, 2014
DATE ON WHICH JUDGMENT IS PRONOUNCED:SEPTEMBER 23,2014

¶8

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

¶9

(As A.S.Chandurkar,J is sitting at Nagpur Bench,
signed judgment is pronounced by A.S.Oka,J as per
Rule 1(i) of Chapter XI of the Bombay High Court
Appellate side Rules,1960)

¶10

1By this appeal the appellant-husband has taken
an exception to the Judgment and Decree dated 3rd
August 2007 passed by the learned Principal Judge of
the Family Court at Bandra in a petition for divorce
filed by the husband. The petition for divorce was
filed on the ground of cruelty under clause (i)(a)
of sub-section (1) of section 13 of the Hindu
Marriage Act,1955. By the impugned Judgment and
Decree, the petition has been dismissed.

¶11

2The appellant and respondent married on 9th May
1999 in accordance with Hindu Vedic Rites. Various
allegations regarding objectionable conduct of the
respondent have been made in the petition for

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divorce. It is alleged that the respondent
immediately after marriage stayed with the
appellant-husband only for one week and thereafter
went back to her parents' house. For a period of
one month, she did not return and only on some
persuasion by the appellant that she returned. It
is alleged that after her return, she became
indifferent not only towards the appellant-husband
but also his other family members. She used to
behave arrogantly and used to abuse the family
members of the appellant. The allegations are to
the effect that she used to quarrel with everyone in
the house and on every festival, she used to stay
with her parents. As the instance of the respondent,
the appellant acquired another residential
accommodation and they started residing in the said
premises from 18th March 2000. The respondent was not
satisfied with the said residential accommodation
and she conveyed her dissatisfaction to the
appellant by using objectionable words. The
petitioner approached his Community Panchayat. At
the intervention of the Panchayat, a meeting was
convened.

¶14

3The allegations which according to the learned
counsel for the appellant are of very serious nature
form a part in paragraph 12 of the petition which
read thus :

¶15

“12Petitioner states that to cap
respondent's cruelty towards petitioner as
hereinbefore stated and described in this

¶16

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¶17

petition, respondent picked up a quarrel
with the petitioner on 30.04.2000
unnecessarily as usual. After raising the
said quarrel on 30.04.2000 as aforesaid,
respondent suddenly called her brother and
sister to the aforesaid place at
Chunabhatti as if it was a pre-planned move
of the respondent. Petitioner states that
after the arrival of respondent's brother
and sister on the scene, respondent let
loose her vicious tongue on the petitioner
and abused the petitioner in a most filthy
language and offensive gestures such of
which could be used and expected from that
class of women whom the society in general
refers to as a class of “fallen women”.
The above conduct on the part of the
respondentobviouslyprovokedthe
petitioner as it would have resulted in
provoking any reasonable person with
ordinary prudence and it led to a minor
altercation. Petitioner states that the
respondent took undue advantage of the said
natural reaction on the part of the
petitioner by lodging a false and
exaggeratedcomplaintagainstthe
petitioner to he police whereupon the
police visited the said place of
petitioner's residence, arrested the
petitioner in front of his neighbours
without so much as caring to listen to what
the petitioner wanted to say and took

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petitioner to Nehru Nagar Police Station
where the police mercilessly thrashed the
petitioner and kept him in the police lock-
up for the whole night of 30.04.2000 to
1.5.2000. The Petitioner states that during
this dramatic situation, respondent, her
brother and sister were all enjoying the
said plight of the petitioner merrily all
the while. In short, petitioner submits
that the respondent by her conduct towards
the petitioner as hereinbefore described in
this petition, made petitioner's marital
life most miserable and pitiable and
reduced the said marriage to a sordid farce
and fiasco.”

¶21

The appellant claimed a decree of divorce on
the ground of cruelty.

¶22

4The respondent denied the averments made in the
petition by filing a written statement. She has
made allegations regarding the conduct of the
appellant-husband. She has alleged that the
appellant has never shown any love and affection to
her and that he used to abuse and assault her.
Though she has denied the averments made by the
appellant in paragraph 12 of his petition, the
respondent in her written statement has narrated the
alleged incident of 1st May 2000. The assertions
regarding the incident of 1st May 2000 are as under :

¶23

 “...Ultimately she was compelled to inform

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the said fact to her family members and
accordingly her brother visited their
matrimonial home on 1.5.2000 to persuade
the petitioner from torturing the
respondent. The petitioner started fighting
with her brother and hit him and torn his
clothes and rushed to Kurla Police Station.
The respondent lodged a complaint in the
police station. In the police station, the
petitioner straight away refused to take
the respondent back to the matrimonial home
and there was no other alternative for her
than to return with her brother to her
parent's house on 1.5.2000. Since then she
is compelled to stay with her parents
only...”

¶26

The respondent prayed for dismissal of the
petition for divorce.

¶27

5The appellant-husband examined himself. The
respondent also examined herself. Both the parties
did not examine any other witness. The learned
Principal Judge of the Family Court held that the
appellant has failed to prove his case of cruelty.
Therefore, the learned Judge proceeded to dismiss
the petition filed by the appellant-husband.

¶28

6The learned counsel for the appellant-husband
has taken us through the pleadings and notes of
evidence. He submitted that the averments made in
the petition are well supported by the affidavit in

¶29

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lieu of examination-in-chief of the appellant. He
pointed out the material allegations about the
incident of 30th April 2014. He pointed out that the
incident of that day was pre-planned by the
respondent, her brother and sister. He pointed out
that the police on the basis of the false complaint
made by the respondent visited the appellant's
residence and in presence of his neighbours took him
into the custody and was taken to Nehru Nagar Police
station where he was thrashed. He pointed out that
the appellant was in police lock up throughout the
night. He pointed out that though the respondent
claims that she had filed police complaint on the
basis of which the appellant was detained, the
respondent did not prosecute the complaint. He
urged that the said conduct on the part of the
respondent of ensuring that the police detain the
appellant in lock up without there being any
prosecution is sufficient to prove the case of
mental cruelty. However, this aspect has been
brushed aside by the learned Judge of the Family
Court. None appears for the respondent.

¶32

7The learned counsel for the appellant has
tendered an affidavit dated 8th August 2014 of the
appellant in which the appellant has given an
undertaking to pay maintenance to the respondent at
the rate of Rs.3000/- per month.

¶33

8We have given careful consideration to the
submissions. We have already quoted above the
assertions made in paragraph 12 of the petition and

¶34

7 fca181

¶35

response of the respondent. It will be necessary to
make a reference to the affidavit in lieu of
examination-in-chief of the appellant. In paragraph
11 thereof, he has reiterated what is set out in
paragraph 12 of the petition. He has stated that on
the basis of false and exaggerated complaint filed
by the respondent with the police, he was arrested
by the police at his residence in presence of the
neighbours. He has specifically stated that at
Nehru Nagar Police Station, he was thrashed by the
police and was detained in lock up for the whole
night of 30th April 2000. In the cross examination
of the appellant made by the Advocate for
respondent, the only suggestion given about the
incident of 30th April 2000 is that he did not file
any complaint. However, the appellant stated that at
the police station, he showed the police his shirt
which was torn by the respondent's brother and
sister. He has stated in the cross examination that
on the complaint filed by the respondent's brother
and sister, the police came to his Chunabhatti
residence and picked him up and took him to the
Nehru Nagar Police Station.

¶36

9The respondent-wife also deposed by filing
affidavit in lieu of examination-in-chief. In
paragraph 8 thereof, she admitted that her brother
visited the matrimonial home on 1st May 2000 to
persuade the appellant to refrain from torturing
her. She has alleged that it was the appellant who
started fighting with her brother. She stated that
the appellant had torn the clothes of her brother.

¶37

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¶38

She admitted that she filed a complaint with the
police station and in the police station, the
appellant straight away refused to take her back to
the matrimonial home. She stated that she returned
to her parents' house on 1st May 2000.

¶39

10Thus, the respondent admitted that she lodged a
complaint against the appellant but she stated that
she lodged a false complaint on 1st May 2000 and not
on 30th April 2000. Though a specific case was made
out by the appellant-husband in his affidavit in
lieu of examination-in-chief that on 30th April 2000
he was arrested and taken to police station and was
detained overnight, the respondent-wife has not
challenged the said version while cross examining
of the appellant. She has not challenged the
version of the appellant that in view of her
complaint, the police came to the residence of the
appellant and in presence of the neighbours, the
appellant was picked up and taken to the police
station. What is important to note is that the
respondent has not placed on record any material to
show that she prosecuted the complaint filed by her
against the appellant any further and that the
appellant was prosecuted. Even a copy of the
complaint filed by the respondent with police on the
basis of which the appellant was picked up and
detained in police custody has not been produced on
record. There is nothing on record to show that the
appellant was prosecuted on the basis of the
complaint filed by the respondent's brother and
sister.

¶40

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¶41

¶42

11Thus, the scenario which emerges is that
admittedly there was a complaint filed by the
respondent against the appellant. The police came to
the residence of the appellant and in the presence
of the neighbours, picked up the appellant and took
him to the police station. The appellant was put in
the police lock up on 30th April 2000 and was
released on 1st May 2000. In absence of any
prosecution being commenced against the appellant on
the basis of the complaint admittedly lodged by the
respondent, it follows that either the complaint
made by the respondent to the police was false or
that the respondent could not substantiate the
allegations in her complaint.

¶43

12The appellant was picked up by the police in
presence of his neighbours and was detained
overnight in the police station. Importantly, the
appellant was never prosecuted. The respondent made
no attempt to substantiate her complaint and in fact
she never made any grievance though the appellant
was not prosecuted on the basis of the said
complaint. Such conduct of the respondent of filing
a complaint with the police for ensuring that the
appellant is arrested at his residence and is
detained overnight will certainly cause mental
cruelty to the appellant, especially when the
respondent has not even placed on record what is the
nature of the complaint. As filing of the
complaint by the respondent did not result into
prosecution of the appellant, the case made out by

¶44

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¶45

the appellant that due to his overnight detention at
the police station and due to the fact that he was
taken by the police in presence of the neighbours,
mental trauma and cruelty was caused to him will
have to be accepted.

¶46

13It will be interesting to note as to how the
learned Judge has dealt with this aspect. In
paragraph 12 of the impugned Judgment, the learned
Judge has noted that after a fight between the
appellant and the respondent's brother, the parties
went to the police station and admittedly, the
appellant was detained for a period of 24 hours.
In paragraph 12, the learned Judge thereafter
proceeded to observe thus:

¶47

“12...The parties admittedly went to police
station. The petitioner was detained for 24
hours is also an admitted fact. Police must
have realized that the petitioner was the
wrong-doer. The respondent alleged that at
the police station, police tried to tell
the petitioner-husband that he should take
his wife back to his wife and the
petitioner refused to do so. This
allegation appears to be truthful. In a
situation like this, the police generally
try to bring about conciliation and after
cajoling parties, they send them home for
cohabitation. The situation in this case
was rather grave. Police admittedly
detained the petitioner-husband. This

¶48

11 fca181

¶49

clearly establishes the fact that the
petitioner-husband was abusive and had
physically assaulted his wife's brother. I
am inclined to believe her case in this
regard.”

¶50

14After recording that the police admittedly
detained the appellant, the learned Judge has
observed that the appellant-husband was abusive and
had assaulted his wife's brother. The learned Judge
has accepted this contention. Firstly, we must note
here that the learned Judge has not stated the basis
on which he has recorded a finding that the
appellant was abusive. As far as the allegation of
physical assault on the appellant's wife's brother
is concerned, it is pertinent to note that the
respondent-wife did not examine her brother and
therefore, the very serious allegation made by the
respondent against the appellant of assaulting her
brother is not at all substantiated. The learned
Judge has completely overlooked the fact that the
police did not prosecute the appellant on the basis
of the complaint on the basis of which the appellant
was arrested. The approach of the learned Principal
Judge appears to be completely erroneous and the
observations made by the learned Judge are not
supported by evidence. Therefore, in our view, a
decree of divorce on the ground of cruelty deserves
to be passed. As stated earlier, the appellant has
filed an undertaking stating that he shall pay
Rs.3000/- per month by way of maintenance to the
respondent-wife. We have accepted the undertaking.

¶51

12 fca181

¶52

The maintenance will be payable under section 25 of
the Hindu Marriage Act,1955. Therefore, appeal must
succeed.

¶53

15Hence, we pass the following order:

¶54

(i)The impugned Judgment and Decree dated 3rd
August 2007 is hereby quashed and set aside
and Petition No.A-1100 of 2001 is allowed.
The marriage solemnised between the appellant
and the respondent on 9th May 1999 is hereby
dissolved on the ground of cruelty under
clause (ia) of sub-section (1) of section 13
of the Hindu Marriage Act,1955;

¶55

(ii)We direct the appellant to pay
maintenance of Rs.3000/- per month to the
respondent from 1st October 2014 regularly and
punctually on or before 10th day of every
calendar month;

¶56

(iii)If the respondent furnishes her bank
account particulars to the appellant, he
shall transfer the maintenance amount

¶57

directly to the respondent's account every
month as aforesaid. Till the date on which
account particulars are furnished, he shall
deposit the amount with the Family Court;

¶58

(iv)Appeal is partly allowed on above terms;
(v)As none has appeared for the respondent,
there will be no order as to costs.

¶59

(A.S.CHANDURKAR,J.)

¶60

(A.S.OKA,J.)

Jating Shivappa Jamkhandi v. Lalita Jating Jamkhandi

Case brief

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What did the court decide?

Jating Shivappa Jamkhandi v. Lalita Jating Jamkhandi

Case brief

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