SHEEL Vs. UMESCHANDRA

JUDGEMENT

(1.) APPEAL under Section 19 of the Family Court Act, 1984, is directed against the judgment and order dated 17.5.2005, delivered by Principal Judge, Family Court, Aurangabad, in Petition No.A-22/2005. It was a petition by present Respondent (henceforth, "husband", for brevity's sake), seeking dissolution of his marriage with present appellant (henceforth, "wife", for brevity's sake) on the ground of cruelty and desertion by the wife. Learned Judge of the Family Court was pleased to uphold both the contentions raised by the husband and observing that the wife had treated husband with cruelty and that she had deserted him continuously for a period exceeding two years next before presentation of the petition, the marriage of the parties is dissolved by a decree of divorce.

(2.) MARRIAGE between the parties was solemnized on 24.2.1995 at Aurangabad, as per the Hindu rites and customs. After the marriage, wife resumed cohabitation with the husband at Nasik. On 26.10.1996, she gave birth to daughter, subsequently named Aishwarya. It is said that cohabitation continued till 10.5.1997. According to the husband, during the period of cohabitation, wife did not behave properly with him, his parents and brothers. She was arrogant and used to insult them. She is highly educated (M.Sc.B.Ed.) and her parents are financially sound. She was proud of all these things. She did not discharge domestic duties. It was her desire that her own sister should be married with younger brother of the husband. The proposal was turned down by the husband and his parents, due to which the wife was annoyed. Wife was having excessive attachment towards her parents. She frequently went to Aurangabad, without consent of the husband. She desired to join some employment. She herself and her parents made efforts for securing employment for her at Aurangabad. It was her desire that she should serve at Aurangabad and the husband should cohabit with her at Aurangabad. With this desire, she deserted the husband. She got employment with Sharda Mandir Girls High School, Aurangabad. Thereafter, she was annoyed with the insistence of her husband that she should cohabit with him at Nasik. On 11.5.1997, she lodged a complaint with police against husband and seven others and left the house with the daughter. In spite of 5-6 attempts to bring her back, she did not resume cohabitation. The wife is in the employment since 3.9.1997. She has lodged a false complaint against husband and his relatives under Section 498-A IPC. Another criminal case No.203 of 2002 was also filed by her only with a view to harass husband and to seek transfer of the case from Nasik Road Court to Aurangabad Court. She has also filed proceedings under Section 125 of Code of Criminal Procedure, 1973, by making false allegations against the husband. Thus, according to husband, wife has treated him with mental and physical cruelty and she has deserted him for more than two years preceding initiation of divorce petition.

(3.) LEARNED Judge took an assessment of admitted facts, in para 19 of the impugned judgment. Although wife is highly qualified, taking into consideration that the husband and his witnesses have admitted in the cross examination that the marriage was performed with free will and consent of both the parties, with the knowledge that the wife was highly qualified, learned Judge refused to accept the contention of the husband that the wife dominated him because she is highly qualified. In the light of admission by uncle of the husband (PW-2 Ishwarchandra) in his cross examination that they had no complaint about the wife till the time of return of wife to Aurangabad for delivery (delivery took place on 26.10.1996), learned Judge declined to believe the contention of the husband that the wife behaved arrogantly with the elderly family members or that, she did not pay due respect to them. It must be said here itself that we find no hesitation to accept these inferences drawn by the learned Judge on the basis of admissions by the witnesses examined on behalf of the husband. Learned Judge has taken a note of the fact that the mother of the husband was not impleaded as an accused person in the complaint under Section 498-A IPC. So far as relatives of the husband impleaded as accused persons, are concerned, they were uncle Ishwarchandra and aunt Chandrakala. However, in para 27 of the judgment, learned Judge did not proceed to draw any conclusion on the basis of this admission of the husband. While dealing with the contention of the wife that because the husband did not come to take her back after delivery, she wrote two letters to husband, learned Judge has recorded that these letters were written just to create evidence, because the wife wrote these two letters on the same day and sent those by registered post. Learned Judge has also disbelieved the story of the wife that messages were given on telephone to the husband, asking him to come and take the wife for cohabitation. However, learned Judge has disbelieved it on the sole ground that there is no telephone facility at the residence of the husband. With the facilities available in the form of telephone booths, STD and ISD booths, we are inclined to consider that the inference of learned Judge that no telephonic message could have been given, is not based on sound footing. Telephonic message can be given by calling the relatives at the neighbour's telephone, as well. Flat refusal to believe the story of the wife is based on ignorance of day-to-day life. Taking into consideration the fact that the brother of the husband, who is aged hardly 13-14 years, the learned Judge found it difficult to believe the accusation raised by the wife to the effect that, the brother of the husband had threatened her to cause defamation, by claiming that he would catch her mother's hand and claim that she has illicit relations with him. We have no hesitation to record here itself that we would agree to such an inference. The story tried to be made out by the wife appears to be far-stretched for the purpose of making out a case of ill-treatment on the part of the husband and his family members. Learned Judge found that the story incorporated in the complaint lodged under Section 498-A IPC is unworthy of belief, because the complaint (Exh.48) itself did not contain recital regarding demand of Rs.50,000/= by the relatives of the husband, whereas it was so narrated for the first time when her statement was recorded. That the case has ended in an acquittal, is another ground why learned Judge believes the prosecution to be a false story. Although the wife did not say that she narrated the details about the ill-treatment to her mother, the mother deposing about ill-treatment and attempts on the part of the parents of the wife to persuade the husband and his relatives to behave properly, is a variance taken note in paragraph 40 of the judgment for further strengthening the conclusion that the prosecution launched by the wife was false. Learned Judge has accepted the version of the husband that he had only asked the wife not to go out for fetching milk, because it would be informed by his sister to his uncle and there may be problem, as compared to story of the wife that when she expressed desire to go out for fetching milk for the child, the husband threatened to go out permanently. It appears that the wife is held to have treated the husband with cruelty because she launched the prosecution under Section 498-A IPC which complaint, according to learned Judge; was false, because the wife made false accusations against brother of the husband and because her story that the husband asked her to leave the house permanently, if she were to go out for bringing milk, is unreliable. In paragraph 43 of the judgment, the learned Judge has made a passing reference to the accusations made by the husband that the behaviour of the wife was not good and proper, that she always threatened him and that she left the house because she has more attachment to her career and she filed false complaint against him. This is done without drawing any inference and being unmindful of the fact that the learned Judge has already disbelieved the story of any ill-treatment on the part of the wife, for the reasons recorded in paragraph 26 of the judgment. So far as issue of desertion is concerned, the same is dealt with in later half and more particularly in paragraphs 45 to 51 of the judgment. After recording that, admittedly; the couple is staying separate since 10.5.1997 and that the burden to prove desertion is upon the husband, since he has come as a petitioner, learned Judge also took a note of the fact that the wife has pleaded attempts on the part of herself and her relatives to resume cohabitation and that those were frustrated by denial on the part of the husband. On reference to paragraph 46, it appears that the learned Judge has pardoned the husband, in spite of his refusal to allow the wife to resume cohabitation because the wife admitted in her cross examination that the husband expressed his disinclination to allow resumption of matrimonial tie, saying that had lodged a false complaint. Impliedly, learned Judge has held that the complaints lodged by the wife were false and, therefore, husband was justified in keeping her outside the house. Witness Sundarlal (DW-5) examined by the wife, on the point of attempts on her part to resume cohabitation, is disbelieved because he could not state exact date of such an attempt. He is also disbelieved because he does not know minor details of the dispute between the parties. "In paragraph 50, the learned Judge has taken a note of the offer by the wife. It seems that the wife had offered the husband to resume cohabitation, by withdrawing the prosecution and also by quitting her job at Aurangabad. The learned Judge has disbelieved this to be a bonafide offer, by observing as follows;