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FA/969/2010 23/ 26 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 969 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=====================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=====================================================
RAJENDRA
RATILAL DALAL - Appellant(s)
Versus
DHARMISTHABEN
WD/O REJENDRA R DALAL & D/O BABULAL KAMDAR - Defendant(s)
=====================================================
Appearance
:
MR VL THAKKAR for Appellant
MS
DHARA M SHAH FOR MR SHIVANG M SHAH for
Defendant.
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 09/08/2010
ORAL
JUDGMENT
(Per
: HON’BLE SMT. JUSTICE ABHILASHA KUMARI)
1. The
present appeal is directed against judgment and decree dated
26-8-2009 passed by the Family Court No.3, Ahmedabad, in Family Suit
No.211 of 2003, whereby, the marriage between the appellant-husband
and respondent-wife (hereinafter referred to as the appellant
and the respondent as they appear in this appeal respectively)
has been dissolved with effect from the date of judgment, under the
provisions of Section 13(1) of the Hindu Marriage Act,1955 ( The
Hindu Marriage Act for short) and a permanent injunction has also
been granted against the appellant.
2. The
impugned judgment and decree came to be passed in a Suit filed by
the respondent wife before the Family Court, being Family Suit No.211
of 2003, wherein she has prayed for a decree under Section 12 of the
Hindu Marriage Act declaring that her marriage with the appellant as
null and void on the ground that it has not been consummated, owing
to the impotency of the appellant. Alternatively, a decree for
dissolution of marriage under Section 13(1) of the Hindu Marriage Act
was also prayed for.
3. In
order to appreciate the issues involved, it would be necessary to
briefly state the relevant facts, which are as under:
3.1 The
marriage between the appellant and respondent was solemnised on
28-1-2000. The respondent is serving as Junior Accounts Officer in
the Telephone Department whereas the appellant is working
in a Private Firm. After the marriage the respondent started staying
with the appellant in the joint family. However, it is the case of
the respondent that the marriage has never been consummated due to
the impotency of the appellant, and this state of affair has
continued throughout. According to the respondent the appellant,
apart from being unable to fulfil his marital obligations, has
inflicted mental and physical cruelty on her, due to which she has
been driven out of the house and has been living separately since
7/9 January, 2001 (except for 24-1-2001). She has, therefore,
approached the Family Court by way of the above-mentioned
Suit, praying for the relief of declaration that the marriage be
declared as null and void under Section 12 of the Hindu Marriage Act.
Alternatively, it was prayed that as the respondent has treated her
with cruelty, a decree of divorce may be granted.
3.2 As
far as the aspect of cruelty is concerned it was asserted by the
respondent before the Family Court that the appellant has treated her
with cruelty as his behaviour changed towards her after the marriage.
The appellant started harassing her and forcing
her to give Rs.9000/- per month from her salary and also to transfer
the Flat purchased by her before the marriage, situated at Himgiri
Apartments, in his name. As the respondent did not agree to the same,
she was subjected to physical and mental cruelty
and torture and also had to endure beatings and false allegations.
She has even broken one of her fingers due to the beating given by
the appellant. As per the say of the respondent, she tolerated such
behaviour even though the appellant was unable to consummate the
marriage. On the proposal of the appellant and his mother, she
agreed to live with them separately from the joint family at her
Flat at Himgiri Apartments
as the existing premises, where the joint family was staying, were
small and were shared by the brother-in-law of the respondent and his
family. However, the harassment continued and the appellant
threatened that he would commit suicide, if she refused to transfer
the flat. It is the case of the respondent that due to the harassment
of the appellant, she was compelled to leave her own Flat, and to
start residing with her parents. Even after her departure the
appellant and his mother continued to reside in the Flat of the
respondent at Himgiri Apartments.
On 24-1-2001, the appellant came to the parental house of the
respondent and apologized for his misbehaviour, asserting that he
would treat her well,therefore, the respondent had returned to
Himgiri Apartments, on his assurance, but on the very
same night the appellant started torturing her in order to compel her
to transfer the Flat in his name. Even then the appellant could not
fulfil his marital obligations, therefore, the respondent returned
to her parental home on 25-1-2001. According to the respondent, the
appellant threatened her that he would not allow her or her family
members to live a peaceful life but on the very next day i.e.
26-1-2001 a devastating
earthquake took place and Himgiri Apartments, was destroyed. The
appellant sustained injuries and was admitted to V.S. Hospital. It is
the case of the respondent that she had taken care of the appellant
during the period while he was injured and served him as a dutiful
wife, and had even taken him to a Private Hospital for better
treatment. However, after recovering from the injury, the appellant
has fraudulently taken a cheque for Rs.50,000/-, which was given by
Mahudi Trust as compensation towards earthquake relief, by
misrepresenting that he has
purchased the Flat in the name of the respondent. The appellant had
assured her that he would return the amount of Rs.50,000/- to her,
but the same has not been done. It was further the case of the
respondent that the parties
have been living separately for more than two years and there is no
relationship of husband and wife between them. However, the
appellant used to come to the office of the respondent in order to
harass and abuse her in the presence of her colleagues, which has
resulted in an apprehension in her mind that there is danger to
her life and limb from the appellant. Further, with the intervention
of elders, a compromise was
arrived at, in order to take divorce by mutual consent between the
parties, wherein it was agreed that the compensatory amount of
Rs.50,000/- would be returned by the appellant to the respondent, who
was to delete her name from the Locker of the Bank, and give back
articles of the appellant and the key thereof. According to the
respondent, she has deleted her name from the Bank Locker and
returned the key and has not taken any ornaments belonging to the
appellant. The appellant has committed breach of the agreement and
not returned Rs.50,000/- and
also refused to sign on the petition for divorce by mutual consent,
just to harass the respondent and extract money from her, as she is
drawing a better salary than him. It was the case of the respondent
that as there is no physical relationship
between the appellant and her and as the appellant has treated her
cruelly, harassed and tortured her physically and mentally, she was
constrained to file the Suit for divorce, before the Family Court.
4. The
appellant opposed the Suit, denying all the allegations levelled
against him. According to the appellant, the allegation of impotency
is false and incorrect and the marriage has been consummated on the
very first night. The appellant is capable of fulfilling his marital
obligations and the Report of the Laboratory, for analysis of his
semen is in his favour, and the same does not prove that he is
impotent. The allegations of cruelty, physical and mental torture,
harassment, and beatings have been denied. On the other hand, the
appellant has stated that it is solely because the respondent does
not want his mother to live with him that she had levelled false and
concocted allegations against him,for obtaining divorce. It is denied
that he has compelled the respondent to leave the matrimonial home
and is asserted that she left on her own, on 25-1-2001. Though the
appellant has admitted that the respondent took care of him after he
was injured during the earthquake, he has further asserted that when
the respondent came to know that he suffered from a paralytic effect,
she left his company. The appellant has admitted that he has received
Rs.50,000/- as compensation from Mahudi Trust and as per the
compromise he was to give the said amount to the respondent, but has
asserted that the respondent has not honoured her part of the
compromise. All other allegations have been denied by the appellant,
who has specifically stated that he is not ready to give divorce to
the respondent, unless she returns the cash and ornaments which were
lying in the joint Locker. According to the appellant, as the
respondent comes from a well-off family and was used to living a
lavish life, and as her salary is more than that of appellant,she was
dissatisfied with the marriage from the very beginning and had,
therefore,decided to take a divorce from him. In this background,
being aggrieved by the impugned judgment and decree of the Family
Court, the appellant has filed the present appeal.
5. On
the pleadings of parties, the Family Court framed issues for
determination at Exh.14,which are reproduced herein under:
“(1)
Whether the petitioner proves that the marriage has not been
consummated owing to the impotence of the respondent,and therefore,
the marriage is null and void?
(2)
Whether the petitioner proves that after solemnization of the
marriage the respondent treated petitioner with cruelty as alleged
in the petition?
(3)
Whether the petitioner proves that the respondent has deserted the
petitioner for a continuous period of not less than two years
immediately preceding from the date of the presentation of the
petition without any cause and without consent of the petitioner?
(4) Whether
the petitioner is entitled to get a decree of dissolution of
marriage on any of the above grounds,if yes,on which ground?
(5) Whether
there is any legal ground under Section 23 of the Hindu Marriage Act
for not granting the petition?
(6) What
order and decree?
6. The
findings of the Court on issues Nos.1,2 and 3 are in the affirmative
and on issue No.4 it is found that the respondent is entitled to get
a decree of dissolution of marriage on the grounds of cruelty and
desertion.
7. Mr.V.L.Thakkar,
learned advocate for the appellant has submitted that the judgment
and decree under challenge is liable to be quashed and set aside as
the same is not in accordance with law and has been passed without
application of mind, inasmuch as the Family Court has not considered
the facts in proper perspective and had wrongly passed the decree in
favour of the respondent, on the ground of cruelty and desertion. It
is further submitted that even on the ground of impotency, there was
no material before the Family Court to make good the allegations of
the respondent, as a semen test is not sufficient evidence for
establishing whether the appellant is impotent or not, therefore, the
finding of the Family Court on this ground is un-justified. On the
contrary, apart from the report of the Genetics Test Laboratory dated
3-7-2001 at Exh.22 produced by the respondent, where it is mentioned
that the semen ‘motility’ is ‘poor’, other reports are produced by
the appellant at Exh.43 wherein the count of semen is stated to be
‘fair’, but the Family Court has not taken these into consideration,
and only the documents produced by the respondent have been relied
upon to arrive at the conclusion that the appellant is impotent and
that the marriage has not been consummated. It is further submitted
by Mr.Thakkar that ‘poor motility’, as mentioned in the report at
Exh.22, refers to the semen count, and as such it cannot be presumed
to mean that the petitioner is impotent and incapable of consummating
the marriage, therefore, the finding on issue No.1 regarding
impotency of the appellant is incorrect, and not supported by any
material on record.
7.1 Regarding
the issue of cruelty, it is submitted by the learned counsel for the
appellant that the fact that the appellant has taken Rs.50,000/- from
Mahudi Trust as compensation for the Flat cannot be considered as
cruelty to the respondent. Though it is denied that the appellant has
inflicted beatings upon the respondent, it is admitted by the learned
counsel for the appellant that it may have happened once or twice but
beatings cannot be considered to be ‘cruelty’ as these type of
incidents are the normal wear and tear of married life. It is further
denied on behalf of the appellant that he was pressurising the
respondent to transfer the Flat in his name. It is submitted that as
the respondent was paying the loan on the Flat, there was no point in
asking for transfer of the same, therefore, the allegation of cruelty
is not proved. Similarly, the learned counsel for the appellant has
submitted that there is no question of asking the respondent to hand
over her salary to the appellant as the respondent was paying the
loan installments therefrom, and hardly anything was left over after
payment of the same. It is asserted by the learned counsel for the
appellant that the appellant was also paying the monthly loan
installments towards the Flat along with the respondent. Further, it
is submitted that the respondent has taken money and ornaments from
the joint Locker of the respondent and appellant during the time when
the earthquake took place and she has not returned the same, which
has not been considered by the Family Court.
7.2. On
the point of desertion it is contended by the learned counsel for the
appellant, that the appellant has never treated the respondent with
cruelty nor has inflicted mental or physical torture upon her, or
harassed her at home or at the work place, so as to compel her to
leave the house. On the contrary, the respondent has voluntarily
gone on her own, therefore, the finding of the Family Court that the
appellant is guilty of desertion as the respondent had been
compelled to leave the house due to his ill- behaviour and cruelty,is
incorrect.
8. On
the above grounds, it is submitted by the learned counsel for the
appellant that the impugned judgment and decree deserves to be
quashed and set aside.
9. Ms.Dhara
Shah, learned counsel for the respondent has strongly opposed the
appeal by contending that the judgment of the Family Court is just
and proper, and has been passed after proper application of
mind,after considering the cogent evidence on record. It is
submitted that the appellant has not been able to adduce sufficient
proof to the effect that he is not impotent and that the marriage was
consummated. It is further contended that the appellant has admitted
in his cross-examination that he used to quarrel with the respondent.
The cruelty and harassment meted out by the appellant were of such a
degree that the respondent was forced to leave her own flat. The
learned counsel for the respondent has emphasised that there is no
marital relationship between the appellant and the respondent, and
they have been living separately since the year 2001, nor is there
any likelihood of reconciliation between the parties. The learned
counsel for the respondent has further submitted that even though the
respondent had to leave her own Flat, she had taken care of the
appellant when he was injured after the earthquake. Further, the
respondent was living in the said Flat on the request of the
appellant’s mother and brother, and at no point of time has she
refused to live in the joint family. It is further contended on
behalf of the respondent that the appellant has not submitted any
original documents before the Family Court and has only levelled
baseless allegations, without any proof, therefore, on the facts and
in the circumstances of the case,the Court may not interfere with the
decree of divorce passed by the Family Court, which is perfectly
legal and justified.
10. We
have heard the learned counsel for the respective parties at length
and in detail, in order to decide the appeal finally, at this stage
with their consent. We have also perused various documents on
record,including the deposition of parties and other relevant
material made available to us.
11. The
first aspect that arises for our consideration is regarding the
finding recorded by the Family Court on the issue of impotency of
the appellant, and his inability to consummate the marriage. After
examining the entire material on record, we find that there is no
conclusive medical evidence of any expert, produced by either of the
parties which would prove that the appellant is impotent and unable
to perform his marital obligations. In his cross-examination, the
appellant has himself referred to the Certificate of the Genetics
Center Laboratory at Exh.22 wherein, on analysis of the semen the
report states that the ‘motility’ is ‘poor’. The appellant has
produced some reports of another Laboratory vide Exh.43 wherein it is
stated that the ‘motility’ is ‘fair’. On the basis of these reports,
the appellant has sought to prove that he is not impotent. It is,
however, an admitted fact that the reports at Exh.43 are not in
original and have not been proved by the appellant by examining any
Doctor or Specialist in the concerned field of Medical Science. In
the absence of any conclusive proof or opinion of a medical expert,
it is not possible for us to conclude that poor or fair
motility of the semen analysis of the appellant would mean that the
appellant is impotent, or unable to consummate the marriage. It is
true that the respondent has categorically stated that the marriage
has not been consummated in spite of the fact that the appellant and
respondent went for their honeymoon for a week, which had to be cut
short as they returned after two or three days due to some
difference of opinion, but apart from the divergent stands taken by
the parties on this issue, there is no material on record to enable
us to come to any definite conclusion regarding the impotency of the
appellant. The appellant has maintained that the marriage has been
consummated and relations as husband and wife took place between the
parties on several occasions. The respondent categorically denies
this and has asserted that there is no consummation of the marriage
at all. It is the ipse dixit of the appellant against that of
the respondent. However, such personal and intimate matters are known
only to the partners to a marriage, and in the absence of any
specific proof of impotency by a medical expert,in our view, the
finding of the Family Court that the respondent has been successful
in establishing that the marriage has not been consummated due to the
impotency of the appellant, cannot be endorsed. Though the respondent
had sought a declaration under Section 12(1)(a) of the Hindu Marriage
Act that the marriage be declared void and be annulled on the
ground that it has not been consummated owing to the impotency of the
appellant, the Family Court, though having found issue No.1 regarding
impotency of the appellant against him, has not passed the impugned
judgment and decree on the ground that the marriage is void as it
has not been consummated, but has declared the marriage to be
dissolved under the provisions of Section 13(1) of the Hindu
Marriage Act, on the grounds of cruelty and desertion.
12. Insofar
as the issues of cruelty and desertion are concerned, it is clear
from the evidence on record that the respondent was serving in the
Telephone Department and earning a decent salary, when she married
the appellant. It is also an admitted position that the respondent
owned the Flat situated at Himgiri Apartments where she was staying
with the appellant and his mother. Though the appellant has stated
that he was also paying monthly loan installments towards the Flat
along with the respondent, there is no material on record to support
this assertion. On the contrary, it is admitted by the appellant that
the Flat was purchased by the respondent before her marriage and was
in her name and she was paying the monthly installments. Though the
appellant has put up a case that the respondent did not want his
mother to stay with them, it is clear from a perusal of the material
on record that not only did the respondent stay in the joint family
before moving into Himgiri Apartments but the mother of the appellant
also came to live with them due to the fact that the joint family
house where they were previously staying was very small and was
shared by the parents of the appellant, his brother and his family
consisting, of wife and two children, aged 18 and 16 years
respectively. The material on record does not reveal that it was on
the insistence of the respondent that they moved to Himgiri
Apartments as asserted by the appellant. Further, we find that in
spite of the fact that the Flat where the respondent was staying with
the appellant belonged to her, she was forced to leave the same due
to the harassment,cruelty and continuous mental and physical torture
meted out by the appellant, in order to compel her to transfer the
same in his name. It is also clear from the material on record that
the appellant has pocketed the amount of Rs.50,000/- which was given
as compensation by the Mahudi Trust when the Flat was destroyed in an
earthquake. Further it is admitted by the appellant that the
respondent came back to take care of him after he was injured in the
earthquake and had taken him to a Private Hospital for better
treatment. The Family Court has found that there is no material on
record to prove the assertion of the appellant that the respondent
has taken away ornaments and cash from the Locker which was in her
joint name along with the appellant. This finding cannot be
faulted.The statement of the respondent that the Locker in question
was given to her by her parents and the name of the appellant was
added later on,as he was her husband, and that after the scandal of
Madhupura Bank, she had taken her ornaments and gifts from the
Locker, has also remained unchallenged.
13. The
findings of the Family Court that the appellant has treated the
respondent with cruelty by harassing and pressurising her to
transfer the Flat of the respondent in his name, and by pocketing the
amount of Rs.50,000/- towards compensation for the said Flat is, in
our view, amply supported by material on record. It is evident that
the respondent was compelled to leave her own Flat which she had
purchased out of her own money before the marriage, due to the
cruelty and harassment of the appellant. The material on record also
points out to beatings given by the appellant to the respondent,
which also resulted in a broken finger which has virtually been
admitted by the learned counsel for the appellant. The allegations of
taking away the ornaments would, constitute mental cruelty and cause
pain to any spouse. It is not possible for us to believe that the
respondent would have left her own Flat, where the appellant and his
mother were staying, had she not been subjected to physical and
mental cruelty of such a degree, so as to compel her to do so. The
finding of the Family Court that the respondent has not left the
matrimonial house without any reasonable cause as the appellant has
forced her to leave the flat and that the appellant has, therefore,
deserted the respondent for a continuous period of not less than two
years immediately preceding the date of the presentation of the
petition not liable to be interfered with, as the same is
well-founded and supported by material on record.
14. In
Manisha Tyagi v. Deepak Kumar, reported in (2010)4 SCC 339, the
Supreme Court held as under:
26.
At this stage we may notice the observations made by this Court in
Naveen Kohli v. Neelu Kohli. In this case the court examined the
development and evolution of the concept of mental cruelty in
matrimonial causes. In para 35 it is observed as follows: (SCC p.568)
35.
The petition for divorce was filed primarily on the ground of
cruelty. It may be pertinent to note that, prior to the 1976
amendment in the Hindu Marriage Act, 1955 cruelty was not a ground
for claiming divorce under the Hindu Marriage Act. It was only a
ground for claiming judicial separation under Section 10 of the Act.
By the 1976 amendment, cruelty was made a ground for divorce and the
words which have been omitted from Section 10 are ‘as to cause a
reasonable apprehension in the mind of the petitioner that it will be
harmful or injurious for the petitioner to live with the other
party’. Therefore, it is not necessary for a party claiming
divorce to prove that the cruel treatment is of such a nature as to
cause an apprehension a reasonable apprehension that it will
be harmful or injurious for him or her to live with the other
party.
(emphasis
supplied)
27. The
classic example of the definition of cruelty in the pre-1976 era is
given in the well-known decision of this Court in N.G.Dastane (Dr.)
v. S.Dastane, wherein it is observed as follows: (SCC p.337,para 30)
30….
The enquiry therefore has to be whether the conduct charged as
cruelty is of such a character as to cause in the mind of the
petitioner a reasonable apprehension that it will be harmful or
injurious for him to live with the respondent.
This
is no longer the required standard. Now it would be sufficient to
show that the conduct of one of the spouses is so abnormal and below
the accepted norm that the other spouse could not reasonably be
expected to put up with it. The conduct is no longer required to be
so atrociously abominable which would cause a reasonable apprehension
that it would be harmful or injurious to continue the cohabitation
with the other spouse. Therefore to establish cruelty it is
not necessary that physical violence should be used. However,
continued ill-treatment, cessation of marital intercourse, studied
neglect, indifference of one spouse to the other may lead to
an inference of cruelty. However, in this case even with
aforesaid standard both the trial court and the appellate court had
accepted that the conduct of the wife did not amount to cruelty of
such a nature to enable the husband to obtain a decree of divorce.
(emphasis
supplied)
15. The
principles of law enunciated herein-above are applicable to the facts
and circumstances of the present case, and the impugned judgment
and decree does not deserve to be interfered with.
16. However,
before parting with this judgment we would like to make it clear that
there is no conclusive evidence regarding the impotency of the
appellant, or the assertion that the marriage has not been
consummated. The finding of the Family Court on this
point,therefore, cannot be endorsed. However, as the decree of
dissolution of marriage has been passed by the Family Court under the
provisions of Section 13(1) of the Hindu Marriage Act, on the ground
of cruelty and desertion and not under Section 12 thereof, the same
is not interfered with. Similarly, as the Family Court has recorded
cogent findings on the ground of desertion and cruelty against the
appellant and in view of the material on record that the appellant
used to harass the respondent at her work place and misbehave with
her, the permanent injunction granted by the Family Court restraining
the appellant from harassing the respondent at her work place and
misbehaving with her and also with the father and brother of the
respondent, is justified and not interfered with.
17. The
appeal is devoid of any merit, therefore, fails and is dismissed.
There shall be no orders as to costs.
(Jayant Patel,J)
(Smt.Abhilasha Kumari,J)
arg
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