Partly allowed

Bharati @ Smita Sunil Mutha v. Sunil Nandilal Mutha

Bombay HC20 Feb 2014FCA/26/2005

Case brief

AI extract

What is this about?

The High Court allowed this appeal partly. It upheld the divorce decree but on the ground of cruelty due to unsubstantiated defamatory allegations, setting aside the divorce pronounced on grounds of desertion. It directed the respondent to pay interim and permanent alimony to the appellant.

What did the court decide?

Divorce upheld on cruelty; desertion ground set aside. Respondent directed to pay interim alimony of Rs. 2,500/month from April 2004 to Feb 2014 and permanent alimony of Rs. 5,000/month from March 201

Bharati @ Smita Sunil Mutha Vs Sunil Nandilal Mutha — Maintenance and Alimony | 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.26 OF 2005

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Mrs. Bharati @ Smita Sunil Mutha .. Appellant vs. Mr. Sunil Nandlal Mutha .. Respondent

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Ms Ameeta Kuttikrishnan, Advocate appointed for the Appellant Ms Seema Sarnaik for Respondent.

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CORAM : A. S. OKA & M. S. SONAK, JJ. 20TH FEBRUARY 2014.

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

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1] By this Appeal, the Appellant – wife has taken an exception to the judgment and decree dated 31^st March 2004 passed by the learned Judge, Family Court at Pune. By the impugned judgment and decree, the marriage solemnized between the Appellant-wife and Respondent-Husband on 20^th December 1992 has been dissolved on the grounds set out in Clauses (ia) and (ib) of subsection (1) of Section 13 of the Hindu Marriage Act, 1955 (for short 'said Act') . Though permanent alimony was denied by the learned Trial Judge to the Appellant, the Respondent was directed to pay permanent alimony of Rs.1000/- per month to the minor son Vrushabh from 1^st April 2001 till the date he attains majority and the custody of the minor son was ordered to be retained with the Appellant.

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2] The marriage between the Appellant and Respondent was

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solemnized on 20^th December 1992. Son Vrushabh was born from the said wedlock on 3^rd November 1993. It will be necessary to refer to the material averments made in the Petition filed by the Respondent. An allegation of general nature has been made that the behaviour of the Appellant was abusive. It is alleged that the Appellant had no respect for the Respondent and his relatives. Time and again, the Appellant used to leave matrimonial home for visiting her parents' home. It is alleged that such incidents occurred on 50 to 60 occasions and every time, though the Respondent was not at fault, he had to plead with the Appellant and bring her back to the matrimonial home. Further allegation is that on 17^th August 1994, the Appellant alongwith her minor son Vrushabh left the matrimonial home with bags and baggage alongwith cash of Rs.5000/-. Thereafter, the Respondent met the Appellant and her parents alongwith respectable persons from their community. Though a request was made by the Respondent to the Appellant for resuming cohabitation, she declined to do so and in fact, the Appellant's father threatened to assault the Respondent. It is pointed out that the Respondent has taken education only upto 12^th standard and the Appellant used to be arrogant as she is a commerce graduate. It is alleged that the Appellant used to insist on the Respondent staying

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with her parents. It is alleged that the Appellant's parents are politically connected and therefore, time and again, they made efforts to file a false complaints against the Respondent. A reference is made in the Petition for Restitution of Conjugal Rights filed by the Respondent under Section 9 of the said Act and a Petition for custody of minor child. It is pointed out that both the Petitions were dismissed by the concerned Court on 23^rd April 2001. A reference is also made to the proceedings filed by the Appellant under Section 125 of the Code of Civil Procedure, 1973. It is alleged that on the basis of the complaint filed by the Appellant, there was an apprehension of arrest and therefore, the Respondent and his family members were required to apply for anticipatory bail and they were granted anticipatory bail. It is alleged that from 17^th August 1994 onwards, the Appellant has been calling the Respondent and his family members and has been giving threats to them. It is alleged that she threatened the Respondent to file a complaint at Lonavala Police Station.

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3] The further allegation made by the Respondent is that there was a compromise between the parties under which the Respondent agreed to acquire a room on rental basis, where the Appellant agreed to stay with him. It is alleged that the Appellant

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was earning a sum of Rs.4,000/- per month by carrying on a business of manufacturing of purses. It is alleged that the Respondent had to surrender possession of his residential premises in view of the order of this Court. Therefore, a decree was sought on the ground of desertion and cruelty.

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4] The Appellant contested the Petition by filing a written statement. The Appellant contended that the Respondent had never any genuine desire to cohabit with her. As regards the settlement, it is alleged that during the pendency of the earlier Petition, the signature of the Appellant was forcibly obtained on the compromise. It is alleged that due to harassment by the Respondent, the Appellant is suffering from ailments such as diabetes and hypertension. It is alleged that her son is taking education in a reputed English Medium School and the expenditure of Rs.2,000/on his education borne by the Appellant's family members.

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5] The Respondent examined himself by filing his affidavit in lieu of examination-in-chief. No other witness was examined by him. The Appellant also examined herself. She also did not examine any other witnesses.

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6] The learned counsel appearing for the Appellant submitted that there is nothing on record to show that the Respondent made any efforts to abide by the compromise recorded during the pendency of the earlier Petition filed by the Respondent under Section 9 of the said Act. Her submission is that there is no pleading and there is no evidence to show that the Respondent complied with the terms and conditions of the settlement by acquiring a residential room on rental basis. Her submission is that after dismissal of the earlier Petition under Section 9 of the said Act, the Respondent never called upon the Appellant to resume cohabitation. The instances of ill-treatment on the part of the Respondent and his family members were set out in her affidavit in lieu of examination-in-chief. She submitted that it is in this context that a factual statement has been made by the Appellant in her affidavit in lieu of examination-in-chief that the Respondent tried to pour kerosene on her person and set her on fire. Her submission is that considering the evidence on record and looking to the conduct of the Respondent, it cannot be said that the allegation has remained unsubstantiated.

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7] The learned counsel appearing for the Respondent urged that the Appellant has not disputed the settlement which is on record of the earlier Petition at Exhibit-51. She urged that the

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Respondent has stated that he acted upon the said settlement by procuring a residential premises. The Appellant-wife never came forward to resume cohabitation. She urged that in the view of the settlement which was filed before the Family Court in the earlier petition, the failure on the part of the Appellant to resume cohabitation is itself sufficient to prove the allegation of desertion. As regards the cruelty, she submitted that unsubstantiated defamatory allegation as aforesaid was made by the Appellant, which caused mental cruelty to the Respondent. In any event, persistent refusal to resume cohabitation at matrimonial home caused mental cruelty to the Respondent and, therefore, no interference is called for.

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8] At this stage, we must note here that on a query made by this Court, the learned counsel appearing for the Respondent-Husband, on instructions of the Respondent-Husband who is personally present in the Court, states that the present income of the Respondent is Rs.10,000/- to Rs.12,000/- per month. However, the learned counsel for the Respondent submitted that the Respondent has to look after his mother and his second wife. She urged that in any case, looking to the findings recorded by the Family Court and considering the conduct of the Appellant, she is not entitled to an

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order of maintenance under Section 25 of the said Act.

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9] We have given careful consideration to the submissions. We have perused the record. It appears from the record that on 7^th December 1995, the Respondent-Husband filed a Petition for conjugal rights against the Appellant in the Family Court at Pune. On 20^th April 1997, a joint pursis was filed by the parties in the said Petition for recording a settlement. The settlement records that from 12^th May 1997 to 12^th December 1997, the parties shall reside together in a separate room and from 12^th December 1997 or earlier thereto, the Respondent will acquire a new house. It is pointed out that after the parties resume cohabitation, the Respondent shall pay a sum of Rs.1000/- per month to the Appellant. It also provided that the Appellant shall withdraw the complaints filed by her on or before 12^th May 1997. It is provided that the pending Application No.866 of 1995 before the Family Court and the Application before Wadgaon Court will remain stayed and for that purpose, the parties will have to make a necessary application to the concerned Courts.

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10] The date of the aforesaid compromise is 20^th April 1997.

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From file 'D' of the record, it appears that the Petition filed by the Respondent for conjugal rights was dismissed for non-prosecution

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on 23^rd April 2001. It is recorded that the Respondent-Husband remained absent continuously from February 2001 and therefore, the Appellant-Wife applied for dismissal of the said Petition. It also records that the Respondent-Husband was in arrears of the maintenance of Rs.60,000/-. Thus, it appears that after the settlement was recorded, the Respondent did not prosecute the Petition for restitution of conjugal rights.

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11] Perusal of the averments made in the Petition does not disclose that at any time after the settlement, the Respondent called upon the Appellant to resume cohabitation. The present Petition was filed on 20^th June 2004. As we have noted earlier, the settlement is of the year 1997. There is no averment in the Petition as well as affidavit in lieu of examination-in-chief as regards the efforts made by the Respondent to ensure that the Appellant resumes cohabitation. Filing of the present Petition is not preceded by any notice or any letter calling upon the Appellant to resume cohabitation. Moreover, there is no evidence adduced to show that in terms of the settlement, the Respondent-Husband acquired a separate premises. Taking into consideration the case made out by the Respondent as it is in the Petition as well as in the affidavit in lieu of examination-in-chief, which is a replica of the Petition, it is

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impossible for us to record a finding that the intention on the part of the Appellant to desert the Respondent has been established. Moreover, the Respondent allowed his petition for conjugal rights to be dismissed for non-prosecution. Therefore, the decree passed by the Family Court on the ground of desertion is unsustainable.

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12] As far as the findings recorded by the learned Judge of the Family Court on the ground of cruelty are concerned, the first part of the finding appears to be on the basis of non-compliance with the terms and conditions of the settlement dated 20^th April 1997. The second ground is set out in paragraph 11 of the judgment and decree. Paragraph 11 reads thus:

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“11. The respondent-wife has filed her affidavit by simply reproducing the written statement in addition to the allegations of demand of money and payment of money to the petitioner-husband in the year 1994. She again asserted in the affidavit that on 17/08/1994, the petitionerhusband poured kerosene on her person and attempted to set fire but somehow she rescued herself and in order to save prestige of the family no complaint was made to police. This testimony of the respondent-wife is absolutely false because no such allegation has been made in the written statement and moreover, she has admitted in the agreement Exh.51 that she had made false allegations against the husband. In cross-examination also she made grievance that petitioner-husband never arranged for separate accommodation. In the cross-examination, she again asserted that she wanted to return back to the husband.”

(underline added)

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13] We have perused the Petition filed by the Respondent and

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the written statement of the Appellant. We have also perused the affidavits in lieu of examination-in-chief of both the parties. In the affidavit in lieu of examination-in-chief filed by the Appellant, an allegation has been specifically made that on 17^th August 1994, the Respondent poured kerosene on her person and tried to subject her to burn injuries. She stated that some how the Appellant managed to escape alongwith her son and with the assistance of her relatives, she went to her parents' home.

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14] In the Petition for divorce filed by the Respondent, in paragraph '7' , there is a specific allegation that on 17^th August 1994, the Appellant left the matrimonial home alongwith her bag and baggage. Though in the Petition, there is a specific reference to the incident of 17^th August 1994, while dealing with the said incident in paragraph '4' of the written statement, the Appellant has not stated anything about the incident of 17^th August 1994 of the Respondent pouring kerosene on her person. The said allegation finds place for the first time in paragraph '6' of the affidavit in lieu of examination-in-chief of the Appellant. It is alleged that in the year 1994, the Respondent demanded an amount from the Appellant's father who ultimately paid a sum of Rs.22,000/-. It is alleged that the

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Respondent immediately spent that amount and thereafter, again started harassing the Appellant for payment of further amount. Thereafter, the specific allegation has been made that on 17^th August 1994, the Respondent poured kerosene on the person of the Appellant and tried to burn her alive. As stated earlier in the Petition filed by the Respondent, there is a specific reference to the incident of 17^th August 1994 of the Appellant leaving matrimonial home, but the written statement is conspicuously silent about the said allegation of pouring kerosene. In her cross examination, by denying the suggestion given by the Advocate for the Respondent, the Appellant reiterated the said allegation. She stated that after her husband poured kerosene on her person, she ran away. She also admitted that she has not filed any police complaint regarding the said incident.

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15] The allegation that the Respondent-husband poured kerosene on the person of the Appellant is certainly an allegation of serious nature which may amount to defamatory allegation. We have already recorded that this allegation has been made by way of an afterthought for the first time in the affidavit in lieu of examination-in-chief. There is no reason given as to why the said allegation was not made in the written statement. Admittedly, there

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is no police compliant filed by the Appellant against the Respondent about the said incident. There is no attempt made by the Appellant to substantiate the said allegation by examining any witness or by placing any other material on record. Thus, we can safely conclude that a false allegation of defamatory nature was made by the Appellant against the Respondent which caused mental cruelty to the Respondent. Therefore, the decree passed by the Trial Court on the ground of cruelty on this aspect will have to be maintained.

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16] The other issue which arises for our consideration is of grant of permanent alimony under Section 25 of the said Act. The only reason given by the Trial Court for denying the maintenance to the Appellant-Wife is that she has voluntarily deserted the husband. However, that case has not been substantiated and therefore, we are setting aside the decree passed on the ground of desertion.

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17] The suggestion given to the Appellant that she was earning Rs.8000/- by manufacturing purses has been denied in the crossexamination. There is no evidence adduced by the Respondent to show that the Appellant has any source of earning. All along, the custody of the son, who has now attained the majority, was with the Appellant. We have not accepted any other allegations of cruelty

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against the Appellant, but we are upholding the decree on the ground of making an allegation unsubstantiated and defamatory nature in the evidence against the Respondent. Therefore, in our view, after setting aside the finding on the ground of desertion, there is no reason to deny maintenance under Section 25 of the said Act.

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18] There is another aspect which we must note here that the Appeal was dismissed for non-removal of office objections. At the time of hearing of the restoration Application, the Respondent came out with a case that he re-married on 19^th April 2009. By the order dated 16^th December 2013, in Civil Application No.138 of 2012, this Court held that the said marriage of the Respondent was solemnized during the pendency of the Family court Appeal and therefore, the said marriage is not lawful.

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19] Even going by the case of the Respondent, as per the statement made on instructions by the learned counsel appearing for the Respondent, the present income of the Respondent is in between Rs.10,000/- to Rs.12,000/- per month. Therefore, from the date of this judgment, the Respondent will have to pay permanent alimony of Rs.5000/- to the Appellant. In view of the findings which we have recorded, there was no warrant for passing a decree on

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ground of desertion. As of today, the income of the Respondent certainly is more than Rs.10,000/- per month. The impugned decree has been passed on 31^st March 2004. At least from the date of impugned decree, the Appellant will have to be held liable for payment of the alimony at the rate of Rs.2,500/- per month to the Appellant-wife.

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20] Hence, we pass the following order:

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(a) We uphold the decree of divorce passed by the Trial Court on the ground of cruelty. We, however, hold that there was no justification for passing a decree of divorce on the ground of desertion and to that extent, the findings of the trial Court are set aside;

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(b) We direct the Respondent to pay permanent alimony of Rs.5000/- per month to the Appellant from 1^st March 2014 onwards. The amount shall be paid on or before 15^th day of every calendar month. We direct the Respondent to pay interim alimony at the rate of Rs.2500/- per month to the Appellant from 1^st April 2004 till 28^th February 2014;

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(d) The decree as regards payment of maintenance to

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the minor son is not disturbed inasmuch as the said decree was operative till the minor son attains the majority;

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

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(f) The advocate for the Appellant shall communicate to the advocate for the Respondent all necessary particulars of the bank account of the Appellant. The arrears of the maintenance as well as the regular maintenance shall be transferred by the Respondent to the Appellant to her bank account.

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(M. S. SONAK, J.)

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Dinesh

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Bharati @ Smita Sunil Mutha v. Sunil Nandilal Mutha

Case brief

What is this about?

What did the court decide?

Bharati @ Smita Sunil Mutha v. Sunil Nandilal Mutha

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

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