Dismissed

Vikram Yeshwant Jathar v. Rekha Vikram Jathar

Bombay HC11 Sept 2017FCA/29/2016

Case brief

AI extract

What is this about?

In this family court appeal regarding divorce, the High Court held that the appellant failed to prove cruelty and desertion. The evidence was deemed vague, insufficient, and often beyond pleadings. Consequently, the trial court's dismissal of the divorce petition was affirmed.

What did the court decide?

The appeal was dismissed with no order as to costs; the impugned order dismissing the divorce petition was upheld.

Vikram Yeshwant Jathar Vs Rekha Vikram Jathar — Matrimonial and Divorce | Bombay HC (2017)

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( 1 ) fca29.16

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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FAMILY COURT APPEAL NO.29 OF 2016

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Vikrant Yeshwant Jathar..Appellant
Age-46 years, Occu-Nil,
Resident of: 17, Pushpanjali
Swanandnagar, Near Chetna Nagar,
Aurangabad

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Versus

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Rekha W/o. Vikram Jathar..Respondent
Age-41 years, Occu-Household,
Resident of: C/o. Ganpat Pandurang Katkar
Satara Mill, Garud Plot,
Bhuswal, Dist. Jalgaon

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Mr.Rahul P. Dhase, Advocate for the appellant
Mr.P.V.Langhe, Advocate for the respondent

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CORAM :T.V.NALAWADE & S.M. GAVHANE, JJ. DATED :11.09.2017

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J U D G M E N T [PER: S.M. GAVHANE, J.]

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.The appellant husband (hereinafter referred to
as the petitioner) whose petition No.A-174 of 2014
against the respondent-wife (hereinafter referred to as
the respondent) for dissolution of marriage under Section
13 (1)(i-a) & (i-b) of the Hindu Marriage Act, 1955 was
dismissed on 17.11.2016 by the In-charge Principal Judge,
Family Court, Aurangabad, has preferred this appeal being

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aggrieved by the said judgment and order of dismissal of
the petition.

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2.Facts leading to the institution of present
appeal, in short, are as under:

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A.The petitioner and the respondent got married
on 06.12.2000 at Bhusawal as per Hindu rites and
ceremonies. Respondent went to the house of the
petitioner at Aurangabad for cohabitation. She was
pregnant in March-2001 and was under the treatment of Dr.
Chobe from Aurangabad. Case of the petitioner is that in
spite of the same respondent went to Bhusawal with her
parents on 22.09.2001. On 10.11.2001, father of the
petitioner was seriously ill and was admitted in Dhoot
Hospital, Aurangabad from 10.11.2001 to 16.11.2001. The
petitioner informed the respondent about the same and
requested her to come to Aurangabad to see his father.
However, respondent did not come. The father of the
petitioner died on 16.11.2001. The message in this
respect was given to the respondent, but she did not
attend the funeral of father of the petitioner as well as
13th day rites after death. On 06.12.2001 the petitioner
called at the house of father of the respondent and he
came to know that she delivered a female child on
05.12.2001. According to the petitioner again he made

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( 3 ) fca29.16

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telephonic call which was received by brother of
respondent who without listening to him abused the
petitioner in filthy language and gave life threat. The
petitioner again tried to talk to the respondent, but she
avoided. Second time, respondent told the petitioner that
she did not want to stay with him and abused him.

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B.The petitioner further contends that thereafter
he called father of the respondent and requested him to
send back the respondent as her presence was needed for
family after death of his father. However, father of the
respondent said that they did not want to send
respondent. The petitioner also wrote letters to the
respondent, but she did not reply. The petitioner sent
invitation card of the Shraddha of his father, but
respondent did not come. The petitioner and his relatives
made many efforts to bring back the respondent. However,
all the efforts were in vain.

¶17

C.According to the petitioner, in the above
circumstances, he filed petition for divorce bearing P.A.
No.394 of 2003 against the respondent. The parties
arrived at settlement on 18.02.2004 and the respondent
resumed cohabitation. Though the demand of respondent to
stay separate from his family members was satisfied, she
used to quarrel with the petitioner on small issues. The

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petitioner tried to sort out the issues, but respondent
was not in a mood to listen. The respondent told the
petitioner that she did not want to stay with him. He
tried to convince her. However respondent flatly denied
to stay with him. The respondent left the petitioner
without any reason. The respondent should have stayed
with the petitioner and helped him in his
responsibilities. The petitioner is required to leave the
job to look after his mother. It is contended that since
07.04.2004, the respondent is staying with her father at
Bhusawal without any reasonable cause. According to the
petitioner cause of action firstly arose in September-
2001 and it is continuing. He tried to settle the matter
but failed. There is no possibility of his and respondent
coming together as they are staying separate for more
than eight years. They stayed together only for one year.
Finally petitioner prayed for dissolution of marriage on
the ground of cruelty and desertion.

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D.The respondent filed reply at Exh.18. She denied
almost all the contentions which are made against her.
She has come with the case that parents of the petitioner
were dissatisfied from very beginning as their illegal
demands were not fulfilled. The petitioner on the say of
his parents used to ill-treat her. After her delivery the
petitioner and his family members did not come to see

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her. After death of the father of the petitioner the
parents of the respondent had gone for last rites. After
September, 2001 many times respondent herself, her
parents, relatives and brother had gone to the house of
the petitioner to convince him. However, the petitioner
and his family members flatly refused to allow the
respondent to resume cohabitation. After settlement in
P.A.No.394 of 2003, the petitioner and his family members
harassed the respondent and drove her out of the house.
The petitioner settled the matter to avoid payments of
maintenance and expenses of marriage. The parents of the
petitioner compelled the respondent to leave the house by
beating her severely. The petitioner himself has
neglected respondent and minor child. The petitioner
wants to marry second time and therefore, he has interest
in getting divorce. The petition has been filed on false
and concocted story and the same is hit by the provision
of order-VII Rule-11 of the Civil Procedure Code.

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E.Both petitioner and the respondent have adduced
oral evidence besides documentary evidence in the form of
copy of divorce petition No.P.A.No.394 of 2003,
Compromise Deed dated 18.02.2004 in the said petition and
copy of driving license which are produced by the
petitioner. On considering evidence adduced by the
parties the learned Judge of the Family Court held that

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the petitioner has failed to prove the ground of cruelty
and desertion alleged against the respondent and
therefore, on holding that the petitioner is not entitled
to divorce on the said grounds dismissed the petition on
17.11.2016 with no order as to costs.

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3.It is above said order of dismissal of divorce
petition of the petitioner is challenged in this appeal
at the instance of petitioner husband on several grounds
mentioned in the memorandum of appeal. Notice was issued
to the respondent wife.

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4. Respondent-wife appeared through Advocate.

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5.We have heard the learned advocates appearing
for the petitioner and the respondent at length and with
their able assistance, we have perused the pleadings of
the parties and the evidence adduced by them. We have
perused the impugned judgment and order.

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6.Mr.Dhase, learned Advocate for the petitioner
submits that on the basis of evidence adduced by the
petitioner, the petitioner has proved the grounds of
cruelty and desertion and therefore he is entitled to
dissolution of marriage as claimed. On the other hand
Mrs.Lange, learned Advocate for the respondent submits

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that the evidence adduced by the petitioner is not
sufficient to state that the respondent caused cruelty to
the petitioner or that she has deserted the petitioner.
Therefore, according to the learned advocate trial Court
has rightly declined the relief of dissolution of
marriage to the petitioner and thus, learned advocate has
supported the impugned judgment and order.

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7.There is no dispute that marriage between the
petitioner and respondent was solemnized on 06.12.2000.
Thereafter the respondent delivered a female child on
05.12.2001. The petitioner had filed P.A.No.394/2003
against the respondent for decree of divorce on the
ground of cruelty and desertion. There was settlement in
the said petition on 18.02.2004 and respondent resumed
cohabitation.

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8.On going through the pleadings of the petitioner
it is obvious that he has claimed divorce on the ground
of cruelty and desertion. According to petitioner,
respondent caused cruelty to him as the respondent did
not come to see his father when he was ill and as she did
not attend the last rites of his father. So also,
according to him he made telephonic calls to the
respondent, but she refused to come and her father and
brother gave him threats that he should not contact the

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respondent.

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9.As observed by the Hon'ble Apex Court in the
case of Savitri Pandey Vs. Prem Chandra Pandey, 2002 AIR
(SCW) 182, the cruelty has not been defined under the Act
but in relation to matrimonial matters it is contemplated
as a conduct of such type which endangers the living of
the petitioner with the respondent. Cruelty consists of
acts which are dangerous to life, limb or health. Cruelty
for the purpose of the Act means where on spouse has so
treated the other and manifested such feelings towards
her or him as to have inflicted bodily injury, or to have
caused reasonable apprehension or bodily injury,
suffering or to have injured health. Cruelty may be
physical or mental. Mental cruelty is the conduct of
other spouse which causes mental suffering or fear to the
matrimonial life of the other. “Cruelty”, therefore,
postulates a treatment of the petitioner with such
cruelty as to cause a reasonable apprehension in his or
her mind that it would be harmful or injurious for the
petitioner to live with the other party. Cruelty,
however, has to be distinguished from the ordinary wear
and tear of family life. It cannot be decided on the
basis of the sensitivity of the petitioner and has to be
adjudged on the basis of the course of conduct which
would, in general be dangerous for a spouse to live with

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the other.

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10.To prove the cruelty petitioner has relied upon
his evidence and oral evidence of other witnesses. He
deposed in accordance with the aforesaid contentions
regarding causing cruelty to him by the respondent. It is
true that the petitioner deposed that respondent did not
come to see his father when he was ill and she did not
attend the last rites of his father. In the cross-
examination the petitioner admitted that the same grounds
were taken by him in the earlier petition for divorce
filed against respondent. So also, he admitted that when
the respondent went to her parents house for delivery she
was pregnant of seven months. Therefore, obviously the
respondent was in advance stage of pregnancy. Therefore,
it was not possible and it was not expected from the
respondent to come to see father of the petitioner who
was ill during her advance stage of pregnancy. Similarly,
in the above circumstances it was not possible for her to
attend the last rites of the father of the petitioner.
Therefore, merely because respondent did not come to see
father of the petitioner when he was ill and did not come
to attend the last rites of father of the petitioner it
cannot be said that in any manner she caused cruelty to
the petitioner. Another aspect to be noted is that as
referred earlier admittedly, the petitioner had filed

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petition No.394 of 2003 against respondent for divorce on
the same grounds and it was settled on 18.02.2004. In
such circumstances whatever allegations were made against
the respondent in respect of cruelty in the said petition
were given up by the petitioner and therefore, in the
present petition he has to specifically establish how the
act of the respondent amounts to cruelty quoting specific
instance in that respect. But, no specific pleading in
that respect is made and pleading is of course vague.

¶35

11.It has come in the evidence of petitioner that
on 06.12.2001 he made telephonic call to the respondent
at her father’s house and only then he came to know that
she delivered a female child on 05.12.2001. He made
telephonic call to the respondent which was received by
her brother and without listening him her brother abused
him in filthy language and gave him threat to life and
warned the petitioner of serious consequences if he would
dare to call again. However, he again tried to contact
the respondent and at that time respondent avoided to
talk to him. Further he deposed that due to demise of his
father his mother was not feeling well and presence of
respondent in his house was necessary to look after his
family. He made request to the father of the respondent
to send her. But he did not send respondent for
cohabitation. According to him said act of the respondent

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inflicted cruelty to him. The petitioner has not
specifically stated as to when brother of the respondent
threatened him not to contact respondent and as to when
father of the respondent refused to send her to his
house. In fact, he should have specifically stated about
the said instance and should have made specific pleading
about the said instance. Therefore, vague evidence of the
petitioner is not sufficient to infer that the respondent
caused cruelty to him.

¶37

12.The next is the evidence of Anil Chavan (PW-2)
and in his evidence at Exh.49 he has stated about the
grounds of cruelty allegedly caused to the petitioner by
the respondent as deposed by the petitioner. In the
cross-examination he has admitted that after delivery of
respondent nobody went to see her. He stated that the
petitioner was angry as respondent did not come to see
his father and for last rites of his father. He stated
that respondent did not come to her in-laws house and
therefore petition for divorce was filed. He stated that
as the petitioner was annoyed he did not come to see the
respondent. Thus, it is clear from his evidence that as
respondent did not come to the petitioner's house,
petition was filed. Considering reason behind filing
petition the evidence of PW-2 is not sufficient to infer
that the respondent treated the petitioner with cruelty.

¶38

13.Walmik Kedar (PW-3) in his evidence at Exh.50
deposed about the filing of the earlier petition by the
petitioner for divorce and settlement in the said
petition in February-2004. He stated that thereafter
petitioner and the respondent started residing separate
from the joint family of the petitioner. Further he
deposed that in October-2004 he had gone to the Bhusawal
at the house of father of the respondent and at that time
father of the respondent refused to send the respondent
for cohabitation. So also, he stated that in April, 2005
alongwith the petitioner he had gone to the house of the
father of the respondent and at that time also father of
the respondent refused to send her for cohabitation. So
also, he stated that in September, 2005 also he had gone
to the house of the father of the respondent with
petitioner to bring the respondent and her daughter and
at that time respondent did not meet them and father of
the respondent told them to leave the house and he drove
them out. The evidence of this witness is beyond pleading
as it appears that there is no pleading in this respect
made by the petitioner in the petition. Moreover, in his
evidence Exh.24 the petitioner has not stated that in the
Month of October-2004, April-2005 and September-2005 he
had gone to house of his father-in-law at Bhusawal with
PW-3 to bring respondent to his house for cohabitation.

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PW-3 stated that he does not know about cruelty caused to
the petitioner by respondent and about driving him out of
the house. Thus, the evidence of PW-3 being beyond
pleading is of no help to the petitioner to state that
the respondent treated petitioner with cruelty.

¶40

14.Tejaswini (PW-4) wife of the younger brother of
the petitioner has not stated about the grounds of
cruelty allegedly caused to the petitioner by the
respondent as deposed by the petitioner. So also, Baburao
Vaidya (PW-5) has also not stated about the grounds of
cruelty as deposed by the petitioner. Therefore, the
evidence of both PWs.4 and 5 is of no help to the
petitioner to state that the respondent treated him with
cruelty.

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15.The respondent-wife in her evidence at Exh.59
deposed that while she was residing at the house of the
petitioner after marriage, her father-in-law, mother-in-
law and brother of her husband used to taunt her and
caused mental and physical cruelty to her as they were
not given proper respect in the marriage, but she was
cohabiting with the petitioner with the hope that there
would be change. She further deposed that as she was
carrying 7 to 8 months pregnancy, she went to her
parental house. Thereafter, her father-in-law was ill and

¶42

due date of her delivery was very close and in the
meantime her father-in-law died. At that time her father,
brother and other relatives had gone to attend the
funeral at Aurangabad, but as she has completed nine
months of her pregnancy and due date was coming nearer,
the petitioner himself informed her on phone not to come
to attend the funeral and therefore, she had not gone to
attend the funeral. The petitioner was annoyed due to
that and therefore did not come to see her after
delivery. She deposed that petitioner and his family
caused her mental and physical cruelty and deserted her
and refused to cohabit with her and therefore filed
petition No.394 of 2003 for divorce without any reason.
After settlement in the said petition also she was
harassed and driven out of the house. She deposed that
since 2004 petitioner himself refused to cohabit with her
without any reason and compelled her to stay her at
parental house without any fault on her part. The Court
at Bhusawal had granted her monthly maintenance of
Rs.2,000/- and to avoid the same the present petition
for divorce has been filed by the petitioner. Nothing has
been found in the cross-examination of the respondent in
favour of the petitioner. Thus, it is clear from the

¶43

evidence of the respondent that she did not come to see
her father-in-law when he was ill and did not go to
attend his funeral after his death due to advance

¶44

pregnancy. Therefore, it does not amount to any kind of
cruelty to the petitioner by the respondent.

¶45

16.As regards the grounds of desertion under
Section 13(1)(i-b) of the Hindu Marriage Act is concerned
the petitioner will have to establish that the respondent
has deserted him for a continuous period of not less than
two years immediately preceding the presentation of the
petition. As referred earlier there is no dispute that
earlier petition No.A-394 of 2003 for divorce filed by
the petitioner was settled and then respondent started
cohabiting with the petitioner. According to the
petitioner, respondent left him without any reason on
07.04.2004 with her father and as such deserted him for
continuous period of not less than two years prior to
filing of petition on 28.04.2014. The desertion is a
matrimonial offence which needs two ingredients to be
fulfilled i.e. intention on the part of respondent to end
matrimonial relationship and actual act in furtherance of
the same. Unless and until both the ingredients are
present the desertion is not complete. So also, it is
important that the deserted spouse should have always be
ready to save the marriage and to stay together. Bearing
the above aspect of desertion in mind, let us, consider
the evidence adduced by the petitioner to prove the same.

¶46

17.The petitioner in his evidence stated that he
and the respondent started staying together. However, the
respondent left his house without any reason on
07.04.2004. Thus, it is clear that after settlement of
earlier petition on 18.02.2004 the petitioner and the
respondent stayed together for one and half month. But,
the petitioner has not given the details about the
behavior of respondent during said period. He has of
course stated that he tried many times to bring back the
respondent but all his efforts were in vain. He stated
that not only he himself but his relatives also tried to
bring him and the respondent together, but those efforts
were also in vain because of adamant attitude of the
respondent and she neglected him and failed to perform
matrimonial obligations. He has not stated about the
names of his relatives who tried to bring back the
respondent for cohabitation after she allegedly left his
house on 07.04.2004. Moreover, he has not stated about
the day, date and month when he made attempts to bring
back the respondent for cohabitation after 07.04.2004.
Even it is not the case of the petitioner that he had
given notice to the respondent calling upon her to resume
cohabitation with him after she left his house on
07.04.2004. So also, it is not his case that he filed any
application under Section 9 of the Hindu Marriage Act for
restitution of conjugal rights against the respondent to

¶47

show that he was ready and willing to cohabit with
respondent and to save the marriage, but the respondent
was not ready. It is admitted that earlier he filed
petition No.394 of 2003 for divorce against the
respondent which was settled on 18.04.2004. Thereafter,
he filed the present petition on 28.04.2014 for divorce
on the same grounds which were taken in the earlier
petition. This shows that the petitioner was never ready
and willing to save the marriage and it cannot be said
that the respondent intended to end the matrimonial
relationship and that she did the act in furtherance of
the said intention. Another aspect to be noted is that
the petitioner has not made specific pleading of the
grounds of desertion and whatever pleading is made in
respect of said ground is very vague. Therefore, the
evidence of petitioner is not sufficient to infer that
the respondent-wife deserted him for a period of two
years preceding the filing of petition.

¶48

18.Next evidence relied upon by the petitioner to
prove the ground of desertion is of Tejaswini (PW-4) who
deposed that she is member of the family of the
petitioner since 07.07.2003. She deposed that on
07.04.2004 father of the respondent, her brother Prashant
had come to petitioner’s house at Bhusawal to take away
the respondent and when petitioner asked them about the

¶49

( 18 ) fca29.16

¶50

reason, the respondent had told that she does not wish to
cohabit with the petitioner. At that time father and
younger brother of respondent took away her with daughter
Vaishnavi and the respondent and her father in clear
terms told that respondent does not wish to cohabit with
the petitioner. She further deposed that she tried to
convince the respondent, but in vain. The above evidence
of PW-4 is not sufficient to state that the petitioner
was ready and willing to save the marriage with the
respondent but the respondent had intended to end the
matrimonial relationship with the petitioner. The
evidence of Baburao Vaidya (PW-5) is that in February-
2004 there was settlement between the petitioner and the
respondent in Family Court and he was present at that
time. He deposed that it was decided as per the
settlement that petitioner and respondent would reside at
Aurangabad in separate room and they resided for one
month in rented house. Then he came to know from the
petitioner that respondent went to parental house with
her father and mother in April-2004 and since that time
petitioner and the respondent are residing separately. He
has denied that he was not present in the Court at the
time of settlement in the earlier petition. The
petitioner does not claim that this witness was present
when the settlement was made in the earlier petition. So
also, he has not stated that he disclosed this witness

¶51

( 19 ) fca29.16

¶52

that the respondent had left his house in April-2004.
Therefore, as this witness has no direct knowledge of the
fact that respondent left house of the petitioner with
her father and brother in April-2004, his evidence is not
sufficient to state that the respondent deserted the
petitioner.

¶53

19.It has come in the evidence of respondent that
she had gone to house of the petitioner for cohabitation
after settlement, but in 2004 the petitioner drove her
out of the house without any fault on her part and
refused to cohabit with her and therefore, she is
compelled to reside at her parental house. As referred
earlier she stated that to avoid maintenance granted to
her and her daughter the petitioner has filed present
petition to harass her. This evidence shows that the
respondent never intended to put an end her matrimonial
relationship with the petitioner, as a wife.

¶54

20.For all the reasons discussed above we hold that
above referred evidence of the petitioner is not
sufficient to infer that respondent treated petitioner
with cruelty or she deserted him for a continuous period
of not less than two years immediately preceding
presentation of the petition for divorce, in the light of
provision under Section 13 (1)(i-a) and (i-b) of the

¶55

Hindu Marriage Act. Thus, the petitioner has failed to
prove both the grounds of cruelty and desertion on which
dissolution of marriage with respondent is claimed. The
trial Court has rightly held so.

¶56

21.On behalf of the petitioner reliance was placed
on the ratio laid down by the Hon’ble Supreme Court in
the case of Satish Sitole Vs Ganga - AIR 2008 SC 3093
wherein it was held that when the marriage is dead
emotionally and practically and there is no chance of its
being retrieved, the continuance of such a marriage would
amount to cruelty. The Hon'ble Supreme Court exercising
the power under Article 142 of the Constitution of India,
passed a decree of divorce on the ground of irretrievable
break down of marriage. In the present case the
petitioner has failed to prove that the respondent has
deserted the petitioner and it has come on record that
respondent is residing with her parents since 07.04.2004.
But the said aspect is not sufficient to state that there
is irretrievable break down of marriage between the
petitioner and respondent. Even assuming that there is
irretrievable break down of marriage no decree for
dissolution can be granted in favour of the petitioner
relying upon the ratio laid down in the case of Satish
Sitole (Supra)as decree for dissolution in the said case
was granted under Article 142 of the Constitution of

¶57

India. Therefore, ratio laid down in the said case cannot
be made applicable to the present case to state that the
petitioner is entitled to decree for dissolution of
marriage.

¶58

22.It is held that the petitioner has failed to
prove the grounds of cruelty and desertion. Therefore,
petitioner is not entitled to decree of divorce. The
learned Judge of the Family Court has rightly refused to
grant decree of divorce by dismissing the petition.
Therefore, there is no justifiable ground to interfere
with the impugned judgment and order. Thus, the appeal
being devoid of merits, the same is liable to be
dismissed in the circumstances with no order as to costs.
Therefore, the appeal is dismissed. No order as to costs.

¶59

[S.M. GAVHANE, J.]

¶60

VishalK/ fca29.16

Vikram Yeshwant Jathar v. Rekha Vikram Jathar

Case brief

What is this about?

What did the court decide?

Vikram Yeshwant Jathar v. Rekha Vikram Jathar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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