ASHLESHA SUSHIL KADAM Vs. SUSHIL RAMCHANDRA KADAM

JUDGEMENT

(1.) THESE two Family Court Appeals are arising out of matrimonial disputes between husband and wife. Family Court Appeal No. 130 of 1992 is filed by the wife against the judgment and decree dated 18.10.1991 passed by the Principal Judge, Family Court, at Bandra, Bombay, in M.J. Petition No. 698 of 1986. By the aforesaid judgment and decree, the Family Court dismissed the petition filed by the wife for restitution of conjugal rights. However, the Family Court awarded permanent alimony to the child Tejas at therateofRs.850/ -per month from the date of the decree and also further directed that wife will be entitled to receive the said permanent alimony of Rs. 850/ - per month for and on behalf of minor child Tejas. Against the said judgment and decree, wife has filed Family Court Appeal being Appeal No. 130 of 1992. Family Court Appeal No. 69 of 1996 is preferred by the husband against the appellant in Family Court Appeal No. 130 of 1992 by challenging the judgment and order dated 26.8.1993 passed by the II Joint Civil Judge, Sr. Dn., Thane in Marriage Petition No. 207 of 1989. In the petition filed by the wife before the Family Court, (i.e.) M.J. Petition No. 698 of 1987, she contended that because of ill -treatment on the part of the respondent -husband and his family members, she was compelled to leave the matrimonial house and though she is ready and willing to go back to the matrimonial house and live with the husband. She, therefore, filed the said petition before the Family Court for restitution of conjugal rights. In the aforesaid petition, respondent -husband contended that in fact because of obstinate attitude of the wife, she used to create disharmony in the family. He further contended that his wife used to disrespect him, his mother, his father and his two sisters. It is the case of the respondent -husband in that petition that his is a joint Hindu family and after the marriage, more particularly after the birth of the son Tejas, the appellant -wife started using abusive language towards his parents by addressing them as an 'old -man and old -woman' and addressing her sister as 'Langadi' due to her inherent lameness. He further contended that she used to leave matrimonial house without informing the inmates of the house and live in her parental house which used to cause great disturbance. Apart from that, it was further contended on his behalf that after she left his house on 3.3.1986, she never returned to his house except at the time of death of his father and death of his grand -mother. Due to her such behaviour, it was impossible for his family members and himself to live with her. Further he contended that his wife went to the extent of filing false case against himself, his mother and two sisters under Section 498 -A of the Indian Penal Code due to which all the family members were harassed and in fact he was required to be in police custody for one day. In view of this conduct, it was contended on his behalf that the petition filed by the wife for restitution of conjugal rights may be dismissed.

(2.) HUSBAND on the other hand filed Marriage Petition No. 207 of 1989 before the learned II Joint Civil Judge, Sr. Dn., Thane for divorce on the ground of desertion and cruelty. On the same facts, as mentioned earlier in the said petition, wife took the same stand as she had taken in Marriage Petition No. 698 of 1987. After allowing both the parties to file their respective written statements before the Family Court as well as Jt. Civil Judge, Sr. Dn., Thane, both the respective Trial Courts allowed both the parties to lead evidence and make their submissions in respect of their claims in the petitions and in the written statements and after hearing both the sides, the Trial Courts dismissed the respective petitions filed by the wife for restitution of conjugal rights and by husband for divorce against which wife preferred Family Court Appeal No. 130 of 1992 and husband preferred Family Court Appeal No. 69 of 1996. Both these aforesaid appeals are subject matter of controversy before us.

(3.) IN both these appeals, it is the case of wife that she was ill -treated, assaulted, due to which she was constrained to leave the matrimonial house and that in fact it is her intense desire to return to the matrimonial house and therefore the Court should pass the decree of restitution of conjugal rights and dismissed the petition of husband for divorce. While on the other hand, it is the case of the husband that because of obstinate and bad behaviour of the wife, he had suffered mental torture and since the wife withdrawn from the matrimonial house on her own due to her obstinacy, he is entitled to get divorce from his wife on the ground of desertion as well as on the ground of cruelty. We are going to consider the aforesaid rival contentions in context of evidence as led by the parties.