Partly allowed

Sanjay Sopan Nanaware v. Chhaya Sanjay Nanaware

Bombay HC13 Oct 2014FCA/23/2008

Case brief

AI extract

What is this about?

An appeal against the dismissal of a divorce petition. The High Court held that desertion was proved as the respondent left the matrimonial home and failed to return, setting aside the lower court's view that lack of restitution proceedings negated desertion. Divorce granted.

What did the court decide?

The divorce petition was allowed, decreeing the dissolution of the marriage on the ground of desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955.

Sanjay Sopan Nanaware Vs Chhaya Sanjay Nanaware — Matrimonial and Divorce | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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FAMILY COURT APPEAL NO.23 OF 2008

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APPELLANT:

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Sanjay Sopan Nanaware, Indian Inhabitant aged 41 years, Occupation: daily wage earner presently residing at C/o Sopan Nanaware at New Parsi Chawl, Room No.72, Sion-Bandra, Link Road, Dharavi, Mumbai – 400017, Dist. Mumbai.

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-VERSUS-

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RESPONDENT :

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Chhaya Sanjay Nanaware, aged 33 years Occupation:service and residing at D wing, 6^th floor, Subhashchandra Bose Cop Hsg Soc. Ltd., Mukund Nagar, Dharavi Road, Opp. ONGC Bldg, Mumbai – 400017, Dist. Mumbai.

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Ms. Amarjit Kaur Advocate with Ms. Loshika K. Bulchandani, Advocates for the appellant. None for the respondent.

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CORAM: A.S. OKA AND A.S. CHANDURKAR, JJ.

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DATE ON WHICH SUBMISSIONS WERE HEARD: 14TH AUGUST 2014 DATE ON WHICH JUDGMENT IS PRONOUNCED: 13TH OCTOBER 2014

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(Signed judgment pronounced by Shri A. S. Oka, J in accordance with Rule 1(i) of Chapter XI of the Appellate Side Rules as Shri A. S. Chandurkar, J is not available in Bombay and is sitting at Nagpur Bench)

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ORAL JUDGMENT : (Per A. S. Chandurkar, J)

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This appeal under Section 19 of the Family Courts Act, 1984 takes exception to the judgment dated 30-11-2007 passed by the learned Judge, Family Court No.2, Mumbai in Petition No.A-704/2005. By aforesaid judgment, the petition for divorce that was filed by the petitioner on the ground of cruelty and desertion has been dismissed.

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The marriage between the parties was solemnized on 16-6-1997. The petitioner used to reside at Shelgaon, Pune and his parents used to stay at Dharavi. After their marriage, the appellant and the respondent resided for some time with the appellant’s parents and thereafter left for residing at Shelgaon. The respondent, however, was not very keen on residing at Shelgaon. At frequent intervals, when the appellant used to come to Mumbai, the respondent used to accompany him for some days at his parents residence and when the appellant used to return back to Shelgaon, she used to go and stay with her parents. After the birth of their child on 2-11-1998, the respondent continued to reside at her parent’s house. In February 1999, the appellant came to Mumbai for

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taking the respondent and their child to Shelgaon. On the day when they were to leave from Shelgaon, the respondent left for her parent’s house without informing the appellant or his family members. Thereafter, a complaint of harassment was lodged by the respondent and her father. The appellant and his father were called to the Police Station for recording their statements. Thereafter, the respondent came to the appellant’s house and after collecting all her belongings left the matrimonial house. She did not return back thereafter. In this background, the appellant filed petition for divorce under provisions of Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 ( for short ‘the said Act’).

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The respondent filed her written statement and opposed the claim as made by the appellant. The allegations made against her were denied. She stated that she was interested in residing at Shelgaon, but it was the respondent who had thrown her out of the matrimonial house. It was further stated that the appellant had illtreated her when she was pregnant. Subsequently, when the respondent and their new

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born child were taken to the appellant’s house, the appellant had beaten the respondent due to which a police complaint was filed at Dharavi Police Station. She further stated that despite various attempts to reconcile the matter, there was no progress. She further stated that she was required to file petition No.C-54/2002 for grant of maintenance. It was, therefore, stated that the appellant was not entitled for any relief whatsoever.

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The appellant examined himself as well as one Swaminath Kale, his brother-in-law in support of his case. Similarly, one Gulab Syed was examined by the appellant to prove aspect of the respondent’s employment in the context of her claim for grant of maintenance. The respondent examined herself and her father. It may be stated that the petition for maintenance filed by the respondent was also tried along with the petition for maintenance filed by the appellant. Thereafter, by common judgment dated 30^th November, 2007, the petition for divorce came to be dismissed with a direction to pay maintenance @Rs.1000/- per month to the minor child till he

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attained majority. Similarly, the petition for maintenance filed by the respondent was also dismissed. In the present appeal, the order dismissing the petition for divorce is under challenge at the instance of the appellant.

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Ms Amarjit Kaur along with Ms. Loshika K. Bulchandani, the learned Counsel appearing for the appellant submitted that the Family Court erred in refusing to grant a decree for divorce to the appellant on the ground of desertion and cruelty. It was submitted that there was sufficient material on record to hold that it was the respondent who had deserted the appellant without any justifiable cause. Similarly, by lodging false reports against the appellant and his family members, the respondent had caused mental agony to the appellant and hence, a case for divorce on the ground of cruelty had been made out. It was submitted that the respondent was never interested in residing at Shelgaon, Pune. She was more interested in residing at Mumbai and especially at her parent’s house. It was submitted that as the appellant had his agricultural land at Shelgaon, it was necessary for him

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to stay there. The respondent had left the matrimonial house without informing the appellant or his family members and had thereafter lodged false reports against the appellant and his family members. She further submitted that after leaving the matrimonial house in the year 1999, the respondent never returned back. It was, therefore, clear that it was the respondent who had deserted the appellant. It was thus urged that a case for grant of divorce under Section 13(1)(ia) & (ib) of the said Act had been made out.

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None has appeared on behalf of the respondent though the appeal was heard on 11-8-2014 and 14-8-2014.

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We have carefully considered the

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submissions made on behalf of the appellant. We have also gone through the pleadings of the parties and the evidence led by them before the Family Court. Accordingly, the following points arise for determination in this appeal.

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POINTS:

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[1] Whether the appellant has proved

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that the respondent had treated him with cruelty?

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[2] Whether the appellant has proved that the respondent had deserted him for a continuous period of more than 2 years immediately preceding presentation of the petition for divorce?

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[3] Whether the judgment under challenge deserves to be interfered with?

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[4] What order?

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As to Point No.1 : In so far as the ground of cruelty is concerned, the appellant has pleaded that after their marriage when the parties were residing at Shelgaon, the respondent was not very interested in doing household work. She was not happy to reside at Shelgaon and was more interested in returning to Mumbai. It has further been pleaded that after the birth of their child on 2-11-1998, the respondent resided at her parent’s house and when he wanted to take her back in February 1999, she was reluctant to

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accompany him back. On the day when they were to leave for Shelgaon, the respondent on the pretext of going to the common toilet, left for her parents residence without informing the appellant or his family members. Thereafter she and her father had lodged a report of harassment against the appellant. Due to aforesaid report, the appellant and his parents were requiring to go to the police station and wait there for considerable period of time till about 2 a.m. After coming home, the appellant found that the respondent had taken away all her clothes, articles and jewellery and left the house. Though the appellant tried to lodge a complaint, but the police authorities refused to accept the same. Subsequently, the appellant’s sister lodged a report with the police station. Thereafter on various occasions, the appellant was called by the police authorities at the behest of the respondent and her father. According to the appellant, he was also pressurized at the instance of a political party on the instigation of the respondent’s father. This, according to the appellant amounted to cruelty under Section 13(1)(ia) of the said Act on the basis of

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which a decree for divorce was sought.

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The respondent in her written statement denied the allegations of cruelty. It was stated that it was she who was subjected to ill-treatment at the hands of the appellant and his family members. She stated that during her pregnancy, the appellant had kicked her and had also beaten her due to which she was required to thereafter reside at her parent’s house. She has further stated that on 7-2-1999, the appellant drove her out of the matrimonial house and hence, she was compelled to lodge complaint at the police station. She, therefore, stated that in such situation she was compelled to reside at her parent’s house. With this stand, the respondent opposed the prayer for grant of divorce on the ground of cruelty.

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In so far as the evidence of the appellant is concerned, he reiterated the case as pleaded in his affidavit. In his cross examination, he stated that after delivery of the child, the respondent stayed at her parents’ house for a period of 4½ months. On 7-2-1999 when the appellant had brought the respondent back, her father had lodged a report at the

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police station. As regards the allegation that the appellant was beaten at the instance of the respondent’s father, he admitted that no report to that effect was lodged by him. He stated that the respondent was not interested in residing at the village, but wanted to stay at Mumbai. The other witness, Swaminath Kale was examined to prove the allegation that the respondent’s father had taken goods from him on credit worth Rs.5,200/-, but the said amount was not paid to him. In his cross examination said witness admitted that he did not have any invoice to show that goods worth Rs.5200/were sold to the respondent’s father. Similarly, he also admitted that no report was lodged complaining that the respondent’s relatives had abused the appellant and his family members and had also demanded a sum of Rs.2 lakhs from them.

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In so far as the evidence of the respondent on the ground of cruelty is concerned, she has denied the suggestion that her family members had taken the help of a political party who threatened the appellant and his family members. She has admitted in her

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cross examination that the portion marked ‘A’ was not correct. Said portion marked ‘A’ in the written statement reads as under:-

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“The police then called upon the petitioner and the in-laws and advised the petitioner to reconcile with the respondent but the petitioner flatly refused to follow their advise.”

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In so far as the evidence of her father is concerned, in his cross examination, he stated that the respondent was taken by him to the police station for lodging complaint on 19-2-1999.

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Thus, from the evidence led by the parties on the aspect of cruelty, it can be seen that though it was the case of the appellant that the respondent was not interested in doing household work, there is no specific evidence on record in that regard. Similarly, in so far as the allegation that the appellant and his family members were harassed by members of a political party at the instance of the respondent’s father and threatened to pay Rs.3 lakhs are concerned, there is no evidence to that effect led by the appellant.

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The appellant in his cross examination stated that no report was lodged with the police authorities on

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alleged demand. Similarly, the appellant’s witness Swaminath Kale referred to a demand of Rs.2 lakhs, but at the same time admitted that no report in that regard was lodged. In so far as the appellant and his family members being summoned to the police station in view of the report lodged by the respondent’s father, it is seen that on 19-2-1999 the appellant’s sister Sangita had lodged a report with regard to threats received by the appellant and his family members and on the same day, the respondent’s father had taken her to the police station to lodge complaint being N. C. No.159/1999. Thus, besides aforesaid incident of both sides lodging reports against each other, there is no other evidence with regard to the aspect of cruelty to the appellant. It is true that the appellant has stated that he and his father were required to wait in the police station till about 2 a.m. pursuant to aforesaid report, but that by itself would not be sufficient to hold that the case of cruelty as contemplated by provisions of Section 13(1)(ia) had been made out. In absence of any clinching evidence to hold that the respondent had treated the appellant

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with cruelty, it cannot be said that a ground for grant of divorce on account of cruelty has been made out. In absence of reports being lodged by the appellant regarding the threats alleged to be received by him and his family members, said aspect cannot be relied upon to hold the respondent and her family members responsible for the same. It is, therefore, clear that there is no material on record to hold that the appellant had proved that the respondent treated him with cruelty as contemplated by Section 13(1)(ia) of the said Act. Hence, point No.1 is answered in the negative.

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As to Point No.2 : In so far as the aspect of desertion is concerned, the appellant has referred to the respondent leaving his company in February 1999 when they were to leave for Shelgaon. He has also referred to her subsequent conduct of not returning to the matrimonial house despite efforts taken by him. In his cross examination, he has stated that he had taken the respondent to his house on 7-2-1999 after which her father lodged a police report. He has stated that after the respondent left the matrimonial house in

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1999, on 3 to 4 occasions he had been to her parent’s house to fetch her back. He also was confronted with his Ration Card (Exh.11) relating to village Shelgaon which showed the names of the appellant, the respondent and their son.

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The respondent in her affidavit stated that it was the appellant who had neglected to maintain her and their son. The respondent in her cross examination stated that the appellant never resided at Shelgaon. She denied of having made a show of going to the common toilet and thereafter to her parents house. She denied the suggestion that after lodging the report, she never went to the appellant’s house.

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The petition for divorce was filed on 7-4-2005. It has come in the evidence of the parties that since 1999 when the respondent left the matrimonial house, they never resided together thereafter. For making out a case of desertion under Section 13(1)(ib) of the said Act, it would be necessary to prove that the respondent had left the company of the appellant without any reasonable ground and the same was for a continuous period of

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more than 2 years preceding filing of the petition for divorce. The appellant in his cross examination has specifically stated in para 19 that after the respondent left the matrimonial home in 1999, on 3 to 4 occasions, he had been to the respondent’s parents house to fetch her back. The respondent’s father – Madhukar who was examined below Exh.43 has not deposed that the appellant never came to their house for taking the respondent back to the matrimonial house. Similarly, the respondent also has not stated in her affidavit that the appellant had never come to her parent’s house to take her back. Therefore, the statement of the appellant in his cross examination that he made 3 to 4 attempts to take the respondent

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back to the matrimonial house has not been countered. Similarly, the Ration Card at Exh.11 reveals that the name of the respondent and their son figures therein. The same is dated 26-3-2004 i.e. prior to filing of the petition for divorce. It will, therefore, be necessary to consider as to whether the respondent left the matrimonial house without any justification and continued to stay away for almost 5 years

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thereafter. The lodging of report with the police authorities is on 19-2-1999. Said report has been lodged by family members of the appellant as well as the respondent. It has been stated by the appellant that after the appellant and his father returned from the police station, it was found that the respondent had left the matrimonial house along with all her belongings. It is also material to note that the respondent in her cross examination admitted that it was not correct that the appellant and his parents were called by the police who advised the appellant to reconcile with the respondent, but he flatly refused to follow their advice. This indicates that there was no such intervention by the police authorities as was sought to be made out by the respondent.

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Thus, in absence of any evidence to show that the respondent on account of the conduct of the appellant was required to leave matrimonial house coupled with the fact that the stand of the appellant that on 3 to 4 occasions, he had attempted to take the respondent back has not been specifically controverted, it will have to be held that it was the

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respondent who had left the matrimonial house on her own accord against the wishes of the appellant and further that she had no intention of returning back. The fact that she chose to reside at her parent’s house since 1999 itself indicates that she was not desirous of going to Shelgaon. The Ration Card (Exh.11) indicates that the appellant had treated her as his legally wedded wife even in the year 2004. The appellant has thus proved animus deserendi on the part of the respondent and that it was the respondent who was staying away from the appellant without any reasonable cause and without his consent. It is, therefore, clear that a case of desertion under Section 13(1)(ib) of the said Act has been proved by the appellant. Hence, Point No.2 is answered in the affirmative.

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As to Point No.3 : The learned Judge of the Family Court while considering the issue as regards desertion has observed that as the appellant had not taken any steps for initiating proceedings for restitution of conjugal rights, it could not be said that the respondent was guilty of desertion. In para 58 of

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the judgment, it has been observed that the respondent had approached the Free Legal Aid Committee and Mahila Mandal, but the appellant did not respond to the notices. There is, however, no evidence on record to indicate that any such notices were issued by the Free Legal Aid Committee or Mahila Mandal to the appellant and that he failed to respond to the same. There is no such statement in the affidavit of the respondent at Exh.32, nor is any suggestion in that regard given to the appellant in his cross examination at Exh.6. Besides aforesaid, there is no other consideration of the material on record by the Family Court while holding that a case of desertion had not been made out.

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The aforesaid finding, therefore, will have to be set aside in view of what has been stated herein above. The finding recorded against the Issue No.2 by the Family Court is, therefore, set aside. Point No.3 stands answered accordingly.

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It is to be noted that the parties are residing separately since 1999. There are no attempts made to reconcile. In Samar Ghosh Vs. Jaya Ghosh (2007) 4

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SCC 511 , the Supreme Court in para 101 (xiv) observed as under:

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“(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

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As a period of almost 15 years has passed since their separation, it can be safely concluded that by refusing to sever the marital tie, sanctity of the marriage between the parties cannot be served.

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The Family Court by the impugned order has awarded a sum of Rs.1,000/- per month towards maintenance of minor child, Shubham from the date of its order. The learned Counsel for the appellant fairly pointed out that the respondent had filed Civil Misc. Application No.164/2011 for enhancement of the amount of maintenance and by judgment dated 16-3-2013, the amount of maintenance was enhanced to Rs.2000/- per month from the date of filing of the

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said application i.e. 1-7-2011. Hence, the order of enhancement of maintenance from 1-7-2011 to Rs. 2000/- operates as on date. Hence, the appellant would be liable to pay maintenance to the minor son in terms of aforesaid order dated 16-3-2013.

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In view of aforesaid, the following order is passed.

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ORDER

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(a) The judgment dated 30-11-2011 passed by the Family Court in Petition No.A-704/2005 is set aside.

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(b) Instead, the Petition No.A-704/2005 is partly allowed and it is declared that the marriage between the appellant and the respondent stands dissolved on the ground of desertion under Section 13(1)(ib) of the said Act. Decree be drawn accordingly.

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(c) It is clarified that the order dated 16-3-2013 passed in Civil Application No.164/2011 shall continue to be binding on the appellant on the same terms and conditions as mentioned therein.

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(d) It would be open for the respondent to seek

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appropriate relief under Section 25 of the said Act.

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(e) Family Court Appeal No.23/2008 is thus, partly allowed in aforesaid terms with no order as to costs.

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JUDGE JUDGE

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//Muley//

Sanjay Sopan Nanaware v. Chhaya Sanjay Nanaware

Case brief

What is this about?

What did the court decide?

Sanjay Sopan Nanaware v. Chhaya Sanjay Nanaware

Case brief

What is this about?

What did the court decide?

What the court decided

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