PRAJAKTA PRAMOD MITHBAVKAR Vs. PRAMOD DAWOO MITHBHAVKAR

JUDGEMENT

(1.) THIS appeal presents a very sad state of affairs because it concerns the marriage of a Police Head Constable with the present appellant-wife which took place as long back as on 18th April, 1978. The record of the case indicates that right from the beginning problems arose between the spouses and after several unhappy incidents, they finally started living apart since the year 1981. When all the possible attempts at reconciliation had failed, the respondent-husband filed a petition before the City Civil Court at Bombay under Section 13 (1) (ia) of the Hindu Marriage Act praying for a decree of divorce from the wife on the ground of cruelty. The matter was hotly contested and after a very protracted litigation, the Family Court at Bombay, by judgment and order, dated 13 th September, 1991, dissolved the marriage and directed the husband to pay maintenance at the rate of Rs. 500 per month. The wife has presented the present appeal and her principal contention is that she has been the victim of cruelty and that the passing of the decree against her is totally unjustified

(2.) THE record of the case indicates that the respondent-husband had discharged his learned advocate and had thereafter appeared in person. When the appeal was called out for hearing today, he has remained absent. However, in order not to allow any prejudice whatsoever to take place vis-a-vis his case, we have carefully scrutinised the entire record before us. We have beard Mrs Rao, learned Counsel appearing on behalf of the appellant, who essentially contends that it is the appellant-wife who was at the receiving end all through ; that she has undergone such tremendous torture and cruelty over the years that she has almost been driven out of her mind ; and that, in these circumstances, there was no justification for the passing of the decree. Mrs Rao has, on the basis of the material before us, pointed out that the original petitioner was the one who treated the wife with a very high degree of cruelty principally because of various expectations that are customary. She further submitted, and perhaps with considerable justification, that the entire case made put by the husband was to the effect that the wife was grossly mis-behaving to the extent that she used to be aggressive, unruly, violent and shqrt-tempered at all times. He had cited instances of her having continuouosly created serious incidents both at the place where they resided at the police quarters as also at bis place of work. Mrs. Rao submitted that it is strange that he has not been able to corroborate these allegations through any evidence from persons working in the department. She submits that it would have been only natural for persons from the police quarters as also other personnel at his place or work to have come forward and supported him if, as he says, the wife was continuously making his life miserable and treated him with a high degree of cruelty. He has also drawn the attention of the Court in his evidence to various police complaints, notices, etc. but these vital pieces of evidence are missing. Cummulatively, mrs. Rao submits that the degree of proof adduced for the purpose of a divorce was wholly insufficient. She has placed reliance on the well-known decision of the Supreme Court in the case of Dastane v. Das tone, reported in AIR 1975 SC 1534. On a careful consideration of the material that was produced before the Family Court, we are satisfied that the present appellant has made out a case for interference. The degree of proof that would justify a charge of cruelty, which is the ground on which the present decree for divorce has been passed, is required to be much higher and, in our considered view, the material before the Court was not good enough for the passing of such a decree. Having regard to this position, we are left with no option except to set aside the decree of divorce granted in favour of the respondent-husband.

(3.) AT the same time, it is the duty of a Court hearing a matrimonial matter to consider the question as to whether the petitioner is entitled to any other relief. Though the respondent-husband has not appeared before us, we have considered the evidence as also the law on the point and we do find that the wife had gone away in the year 1981. The material adduced before the Court may not justify her having left the matrimonial home at that point of time and her having stayed away thereafter. There is material to indicate that the respondent-husband had made efforts for a reconciliation which did not bear any results. Consequently, the respondent to this appeal, namely the original petitioner, would still be entitled to a decree of judicial separation under Section 10 (1) of the Hindu marriage Act.