Allowed

Tejas Prakash Shah v. Aditi Tejas Shah

Bombay HC12 Feb 2015FCA/71/2008

Case brief

AI extract

What is this about?

The High Court allowed the husband's appeal against a Family Court decree dismissing a divorce petition. The Court held that the respondent's unsubstantiated allegations affecting the appellant's and his relatives' character constituted mental cruelty, quashing the impugned decree and granting a divorce.

What did the court decide?

Impugned judgment and decree quashed; marriage dissolved by decree of divorce under Section 13(1)(i-a); liberty granted to respondent to apply for maintenance.

Tejas Prakash Shah Vs Aditi Tejas Shah — Matrimonial and Divorce | Bombay HC (2015)

fca71

ssp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
 FAMILY COURT APPEAL NO.71 OF 2008

¶5

Tejas Shah ...Appellant
vs.
Ms Aditi Tejas Shah ...Respondent

¶6

Ms Edith Dey and Ms Neeta Parikh for the appellant
Mr.Hemant Ingle i/b Mr.Prashant S. Goyal for the
respondent

¶7

ORAL JUDGEMENT: (PER A.S.OKA,J.)

¶8

1Heard the learned counsel for the parties. By
this appeal, the appellant-husband has taken an
exception to the Judgment and Decree dated 3rd
January 2008 passed by the learned Judge of the
Family Court at Bandra.

¶9

2The marriage between the parties was solemnised
on 27th February 2002 in accordance with Hindu Vedic
rites. The present petition for divorce was filed
by the appellant-husband on 16th May 2005. A decree
for divorce was sought on the ground of cruelty
under clause (i-a) of sub-section 1 of section 13 of
the Hindu Marriage Act,1955 (for short `the said
Act'). The learned Judge of the Family Court came
to the conclusion that the conduct alleged by the
appellant-husband against the respondent-wife even

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taken as correct will not constitute cruelty. The
learned Judge observed that the marital bond between
the parties cannot be broken for the small reasons.
The learned Judge, however, recorded that both the
husband and wife are egoistic and did not have
regard for the desire and wishes of other spouse.
The petition was dismissed by the impugned Judgment
and decree.

¶12

3The learned counsel for the appellant-husband
has taken us through the pleadings and notes of
evidence. The learned counsel pointed out various
instances of cruelty set out in the petition as well
as in the affidavit in lieu of examination-in-chief
of the appellant-husband. She pointed out that
there is hardly any challenge to what is set out in
the affidavit in lieu of examination-in-chief. Her
submission is that the overall effect of various
instances which are narrated by the appellant-
husband which have been established on evidence will
have to be considered to decide whether the conduct
of the respondent constitutes cruelty. Her
submission is that the learned Judge of the Family
Court has not even adverted to the evidence on
record and, therefore, the impugned Judgment is
illegal. She invited our attention to the averments
made in paragraph 8 of the written statement. She
pointed out that very serious allegations affecting
the character of the appellant's father and brother
have been made by the respondent. She also pointed
out the averments made in the written statement and
in particular in paragraph 11 alleging that during

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the subsistence of the marriage, the appellant was
enjoying the company of one Karishma. She also
invited our attention to the cross examination of
the appellant made by the respondent. She also
invited our attention to the evidence of the
respondent in which she has reiterated the
allegations made against the appellant. She
submitted that the said allegations which affect the
character of the appellant himself, his father and
brother have not been substantiated by the
respondent and that the same constitute cruelty to
the appellant.

¶15

4The learned counsel for the respondent
submitted that the learned Judge has very hurriedly
disposed of the matrimonial petition. He pointed
out that the evidence of both the appellant and the
respondent was recorded on 3rd January 2008. He
pointed out that the arguments in the petition were
also heard on the same date. He invited our
attention to the fact that on 3rd January 2008, both
the appellant and the respondent had applied for
adjournment. He pointed out that both the
applications were rejected. He urged that without
granting even a reasonable time, the learned Judge
after recording evidence immediately concluded the
case on the very day and even the Judgment was
pronounced on the very day. He urged that the
respondent was forced to cross examine the appellant
in person. He pointed out that examination-in-chief
of the respondent was recorded without giving an
opportunity to her to file an affidavit in lieu of

¶16

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examination-in-chief. He, would, therefore urge
that this is a fit case where an order of remand
deserves to be passed. He submitted that in view of
Rule 33 of Order XLI of the Code of Civil
Procedure,1908, this Court can pass an appropriate
order though the respondent may not have challenged
the impugned decree. On instructions, he submitted
that the respondent never consented to decide the
petition on 3rd January 2008 itself and what is
recorded in paragraph 1 of the Judgment is factually
incorrect.

¶18

5We have given careful consideration to the
submissions. Firstly, we propose to deal with the
last submission made by the learned counsel for the
respondent regarding the failure of the learned
Judge of the Family Court to grant even a reasonable
opportunity to the respondent to defend herself. It
is true that in a given case by exercising power
under Rule 33 of Order XLI of the said Code,
appropriate decree can be passed even on the request
made by the respondent to the appeal though the
respondent may not have challenged the decree
subject matter of challenge in the appeal. We have
carefully perused the record. Before adverting the
record, we must note what is recorded by the learned
Judge in the Judgment in its first paragraph which
reads thus:

¶19

“1The matter is on Board for hearing
today. When the Respondent-wife made a
grievance that now she is studying in

¶20

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¶21

Scotland and she is unable to come again and
again in Court, I therefore, gave priority to
this matter with their consent deciding this
finally today....”

¶22

6The learned Judge has thus clearly recorded that
it was on the request of the respondent-wife that he
gave out of turn priority to the hearing of the
petition and with the consent of the parties, he
decided the petition on the very day.

¶23

7 In the light of what is recorded by the learned
Judge, it will be necessary to peruse the record.
On 3rdJanuary 2008, the respondent made an
application at Exh.11. In the said application she
stated that she is studying in Scotland and her
course will be completed in December 2008. A prayer
made in the said application was that hearing of the
petition should be adjourned till January 2009.
There is a handwritten order dated 3rd January 2008
passed by the learned Judge of the Family Court on
the said application. In the said order, the
learned Judge has recorded that after evidence of
the appellant was over, the respondent stated that
she wants to go abroad and hence, it is agreed that
the matter will be decided on that very day. After
recording this, the learned Judge rejected the
application at Exh.11. It is true that on the same
day, an application (Exhibit-12) for adjournment
was made by the husband. The said application was
rejected on the very day i.e on 3rd January 2008 on
the ground that the application for adjournment made

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by the respondent was rejected. There is one more
interesting aspect which must be noted. On 3rd
January 2008, the respondent made an application at
Exh.18 for grant of permission for appointing an
Advocate. The said application seeking a
permission for appointing Advocate was granted on
the very day and the Advocate sought to be appointed
by the respondent also filed Vakalatnama on the very
day.

¶27

8Not only in the order below application at
Exh.11, but in the Judgment, the learned Judge has
recorded that as the respondent was studying in
abroad, she was unable to come again and again to
Family Court. As far as the consent of both the
parties to dispose of the matter on the very day
recorded in the Judgment is concerned, the said
consent has been recorded by the learned Judge in
the Judgment on the basis of the oral statements
made by the parties. What is recorded by the
learned Judge in paragraph 1 of the Judgment is what
transpired in the Court. If according to the
respondent, what is recorded in the Judgment is
incorrect, the only remedy available for the
respondent was to make an application to the
concerned Court for necessary clarification.
However, even during the pendency of the Family
Court Appeal which is pending almost for 7 years,
the respondent has not at all applied to the learned
Judge of the Family Court for necessary
clarification/modification of the order. Therefore,
we will have to proceed on the footing that what is

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recorded in the paragraph 1 of the Judgment is
correct and that it is on the request of the
respondent and by consent of the appellant, the
petition was disposed of on the same day on which
evidence was recorded. In view of what is recorded
in the Judgment and in particular in paragraph 1 of
the Judgment, the contention of the respondent that
she was not given a proper opportunity to contest
the petition cannot be accepted. Merely because the
examination-in-chief of the respondent was not taken
in the form of an affidavit and that the same was
recorded in open Court, no illegality has been
committed by the learned Judge of the Family Court.
Therefore, the prayer made by the learned counsel
for the respondent for remand deserves to be
rejected.

¶30

9 It will be necessary now to make a reference to
the pleadings. In the written statement of the
respondent in paragraph 8, she has stated thus:

¶31

“8....On the contrary Respondent states that
father of the petitioner had evil eye on the
respondent. He would never close the door
while having bath or going to toilet. Door
of the bedroom were never locked. Moreover,
father of the petitioner would sleep between
petitioner and respondent on pretext of not
having A.C in their room. Further, brother of
the petitioner Kartik would also follow foot
steps of his father and make gestures which
cannot be put in screen. The respondent

¶32

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states that whenever she would bring the said
fact to the notice of petitioner, the
petitioner would become wild and start
assaulting her. Respondent also states that
as she could not fall prey to her father-in-
law and brother-in-law, she was purposely and
constantly targeted by the mother-in-law and
she was also made to suffer immensely at the
hands of the petitioner.”

¶35

(underline supplied)

¶36

10Further in paragraph 11, the respondent has
stated thus:

¶37

“11....Everybody in the family avoided her and
neglected her. The petitioner started bringing a
girl called Karisma and he was always found in
the company of the said girl whenever she would
question the petitioner and disclosed her
objection, she was abused by saying Bastared,
fucking girl etc and abused in most filthy
language. The respondent states that on 1st of
January 2005 as it was new year Petitioner took
her for English Movie where the said Karisma was
also present. The respondent states that she was
shocked and surprised to see Karisma sitting
next to the petitioner. The petitioner was
often found holding hands of said Karisma. The
petitioner would get physically cozy with her
and played with her ears, moved fingers over her
hair and make uninvited gestures. The respondent
states that whenever she would object she was
threatened to kill if she utter a word. She was

¶38

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¶39

¶40

constantly kept under pressure by the

¶41

petitioner.”

¶42

(underline supplied)

¶43

11It will be necessary to make a reference to
the cross examination of the appellant made by the
respondent. In the cross examination, at the outset,
a suggestion was given that the appellant was found
in a compromising position with one Karishma Bajaj
in the bedroom of the respondent. The correctness of
the said suggestion was denied by the appellant.
Thus, an allegation was made against the appellant
by the respondent of having objectionable
relationship with one Karishma Bajaj. The contention
regarding finding the appellant in compromising
position with the said Karishma in the bedroom of
the respondent is not specifically raised in the
written statement. We have quoted the allegations of
very serious nature made by the respondent affecting
the character of the appellant's father and brother.
These allegations have not been proved by the
respondent. The examination-in-chief of the
respondent was recorded by the learned Judge on 3rd
January 2008. It will be necessary to make a
reference to the assertions made in the examination-
in-chief. In paragraph 2, the respondent stated
thus:

¶44

“2...The petitioner used to go to pick one
lady by name Karishma Bajaj who happened to
be wife of his boss. He brought her at our
home, and introduced to me as a friend. They

¶45

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were having very close relations as they used
to move together, spend most of time
together. The petitioner was buying various
gifts for her.”

¶47

(underline added)

¶48

12Even going by the testimony of the respondent-
wife, the allegations affecting the character of the
appellant, the appellant's father and brother have
not been established. The allegations made are of
sweeping nature casting aspersions on the character
of the not only the appellant but also on his father
and brother. These are the allegations which are
defamatory in nature.

¶49

13It will be necessary to make a reference to the
recent decision of the Apex Court in the case of K.
Srinivas Rao Vs. D.A.Deepa1. In the said decision,
the Apex court referred to its earlier landmark
decision in the case of Samar Ghosh Vs. Jaya Ghosh2.
In the paragraph 14 of the decision in K. Shrinivas
Rao, the Apex Court held thus:

¶50

“14Thus, to the instances illustrative of
mental cruelty noted in Samar Ghosh, we could
add a few more. Making unfounded indecent
defamatory allegations against the spouse or
his or her relatives in the pleadings, filing
of complaints or issuing notices or news
items which may have adverse impact on the

¶51

1 AIR 2013 SC 2176

¶52

2 (2007) 4 SCC 511

¶53

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business prospect or the job of the spouse
and filing repeated false complaints and
cases in the court against the spouse would,
in the facts of a case, amount to causing

¶55

mental cruelty to the other spouse.”

¶56

(Underline added)

¶57

14In the case of Vijaykumar Ramchandra Bhate vs.
Neela Vijaykumar Bhate3, the Apex Court dealt with
a case where allegations affecting character of a
spouse were made in the written statement. It will
be necessary to make a reference to paragraph 7 of
the said decision in the case of Vijaykumar Bhate.
Paragraph 7 of the said decision reads thus:

¶58

“7The question that requires to be
answered first is as to whether the
averments,accusationsandcharacter

¶59

assassination of the wife by the appellant
husband in the written statement constitutes
mental cruelty for sustaining the claim for
divorce under Section 13(1) (i-a) of the Act.

¶60

The position of law in this regard has come

¶61

to be well settled and declared that
levellingdisgustingaccusationsof
unchastity and indecent familiarity with a
person outside wedlock and allegations of
extramarital relationship is a grave assault

¶62

on the character, honour, reputation, status

¶63

as well as the health of the wife. Such
aspersions of perfidiousness attributed to

¶64

3 (2003) 6 SCC 334

¶65

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the wife, viewed in the context of an
educated Indian wife and judged by Indian
conditions and standards would amount to
worst form of insult and cruelty, sufficient
by itself to substantiate cruelty in law,
warranting the claim of the wife being
allowed. That such allegations made in the
written statement or suggested in the course
of examination and by way of cross-
examination satisfy the requirement of law
has also come to be firmly laid down by this
Court. On going through the relevant portions
of such allegations, we find that no
exception could be taken to the findings
recorded by the Family Court as well as the
High Court. We find that they are of such
quality, magnitude and consequence as to
cause mental pain, agony and suffering
amounting to the reformulated concept of
cruelty in matrimonial law causing profound
and lasting disruption and driving the wife
to feel deeply hurt and reasonably apprehend
that it would be dangerous for her to live
with a husband who was taunting her like that
and rendered the maintenance of matrimonial
home impossible.”

¶68

(underline applied)

¶69

15Now coming back to the facts of the case, we
have already quoted the allegations made by the
respondent against the appellant's father and
brother. It is not necessary to elaborate that the

¶70

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said allegations are of very serious nature
affecting the character of the appellant's father
and brother. We have already pointed out what is set
out in paragraph 11 of the written statement wherein
the respondent went to the extent of stating that
the appellant started avoiding her and was always
found in the company of one Karishma.

¶73

16At this stage, it will be necessary to make a
reference to the deposition of the respondent. In
the examination-in-chief for the first time she came
out with a case that the appellant used to go to
pick one lady by name Karishma Bajaj who happened to
be wife of his boss which is completely a new case
made out by the respondent.

¶74

17 In paragraph 6 of her cross examination, the
allegations against the appellant's father and
brother have been reiterated by the respondent.

¶75

18The allegations made against the appellant's
father and brother and the allegations made against
the appellant are of very serious nature affecting
their reputation and character. The respondent has
made no attempt to substantiate the allegations.
Such unsubstantiated and reckless allegations must
have certainly caused mental agony and cruelty to
the appellant-husband. Therefore, a decree of
divorce on the ground of cruelty must follow.

¶76

19As we are inclined to pass a decree of divorce
on the aforesaid ground, it is not necessary for us

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to go into the other allegations made by the
appellant in this petition for divorce.

¶80

20We find that there is no material on record to
consider the claim of the respondent, if any, for
maintenance. But, the respondent is at liberty to
apply under section 25 of the said Act for grant of
appropriate relief.

¶81

21Hence, for the reasons set out, we pass the
following order:

¶82

(I)Impugned Judgment and decree dated 3rd
January 2008 in Petition No.A-931 of 2005 is
hereby quashed and set aside;

¶83

(II)The marriage solemnised between the
appellant and the respondent on 27th February
2002 is hereby dissolved by a decree of
divorce under clause (i-a) of sub-section (1)
of section 13 of the Hindu Marriage Act,1955;

¶84

(III)We grant liberty to the respondent
to file appropriate proceedings for
maintenance and other reliefs. If such
application is made, the appropriate Court
will decide the same in accordance with law;

¶85

(IV)The Appeal is allowed on above terms
with no order as to costs.

¶86

(A.K.MENON,J.)

Tejas Prakash Shah v. Aditi Tejas Shah

Case brief

What is this about?

What did the court decide?

Tejas Prakash Shah v. Aditi Tejas Shah

Case brief

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