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jdk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 74 OF 2013
IN
PETITION NO. A-419 OF 2011
Mrs. Sanjana Sandip Pednekar ]
Age 29 years, Indian Inhabitant ]
Occ; Service, residing at Room No.4 ]
Building No.1, Bhoiwada Transit Camp]
Shankarbuva Ghadi Marg, ]
Bhoiwada, Parel, Mumbai-400 012 ]..Appellant
Vs.
Mr. Sandip Sitaram Pednekar ]
Occ: Service, residing at Room No.423]
Mayuresh Building, ]
Dattaram Lad Marg, Kalachowki, ]
Mumbai-400 033 ]..Respondent
....
Mr. Pankaj Shinde Advocate for the Appellant
Mr. Hemant Ghadigaonkar Advocate for the Respondent
....
CORAM : SMT.V.K.TAHILRAMANI AND
SHRI. P.N.DESHMUKH, JJ.
RESERVED ON : FEB., 13, 2014
PRONOUNCED
ON : MARCH 3, 2014
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JUDGMENT: [PER SMT. V.K.TAHILRAMANI, J.]:
1 Heard the learned counsel for the appellant and the
learned counsel for the respondent. By consent of the parties,
the appeal is taken up for final hearing and disposal.
2 The marriage of the appellant and the respondent
was solemnized on 8.12.2009 at Mumbai as per Hindu Vedic
Rites. It is the case of the respondent that the appellant who
was his wife, treated him with cruelty, hence, the respondent
filed a petition i.e. Petition No. A-419 of 2011 for divorce on the
ground of cruelty. The said petition came to be allowed by the
Family Court, Mumbai by judgment and order dated
19.12.2012. Being aggrieved by the said order, this appeal has
been preferred.
3 It is an admitted fact that the marriage between the
appellant and the respondent took place on 8.12.2009 at
Mumbai as per the Hindu Vedic Rites. The case of the
appellant is that the respondent was the daughter of his
maternal uncle. There was love affair between both of them
and they had even shared physical intimacy prior to the
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marriage.
4 In order to show that the wife treated him with
cruelty, the respondent-husband relied on the following
instances:
(i) After the marriage both the appellant and the
respondent went to Mahabaleshwar for honeymoon for four
days and three nights. According to the husband, he made
attempts to consummate the marriage but the wife refused to
allow him to touch her body. Hence, on coming back from
honeymoon, he complained to the father of the wife about this
fact.
(ii) The second incident relied upon by the husband is
that on 24th, 25th and 26th January, 2010 the wife went to
Nashik for office work in spite of being advised not to do so as
they were newly married. But the wife went out of Mumbai on
her office work. The further case of the husband is that the
wife used to wear shirt and pant while going to the office which
was not liked by him. She used to pick up quarrels with him
and his parents and she never gave respect to his parents.
(iii) Another incident relied upon by the husband to show
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that he was treated cruelly by the wife, is that on 2.2.2010 his
wife returned home from office at 10.00 p.m. The respondent
tried to convince the wife to behave in a proper and dutiful
manner. Thereupon, she picked up quarrel and pushed the
husband and started to collect her clothes and belongings in
order to go to her parents house. At that time, the husband
and his parents convinced her and she stayed the night. On
the next day, the husband and his parents called her parents
and her parents convinced her. Thereafter on 8.2.2010 the
wife of her own accord, left the matrimonial home along with
her parents. This is sum and substance of the allegations of
the husband on the point of cruelty.
5 In order to prove the cruelty, the husband has
examined himself and the wife has also examined herself. No
other witnesses were examined by the parties.
6 The learned counsel for the appellant pointed out that
the allegations made by the husband regarding picking up of
quarrels and not giving respect to his parents, are found to be
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vague and no material particulars have been given by the
respondent in relation to these allegations. The main ground
to prove cruelty which has been stated by the husband, is that
soon after marriage when they went for honeymoon to
Mahabaleshwar for four days and three nights, he made
attempts to consummate the marriage but the wife refused to
allow him to touch her. According to the husband, this non-
consummation of marriage at the time of honeymoon caused
him tremendous cruelty. It was submitted by the learned
counsel for the husband that failure to comply with one of the
essential obligations of the marital life by a spouse, would
amount to subjecting the other to cruelty. It is one of the
essential and principal obligations on the part of the spouse to
satisfy the sexual urge of the other, which is natural instinct.
Married life without a sexual life will be a curse. Normal sexual
life cannot be deserted from a happy marital life. It was
observed by Lord Denning in Kalest Sky Vs. Kalest Sky, 1950
(2) All ER 398: "that willful and unjustifiable refusal of sexual
intercourse is destructive of marriage, more destructive,
perhaps, than anything else. Just as normal sexual intercourse
is the normal bond of marriage, so the willful refusal of it
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causes a marriage to disintegrate. It gives rise to irritability
and discord, to nervousness and manifestations of temper, and
hence, to the break down of marriage.
7 The learned counsel for the husband contended that
refusal to have sexual intercourse clearly amounts to cruelty.
He placed reliance upon the decision of the Supreme Court in
the case of Gurbux Singh Vs. Harminder Kaur; 2010 ALL
SCR 2665 to support his contention. He pointed out that in
paragraph 10 of the judgment, it is held that "unilateral
decision of refusal to have intercourse for considerable period
without there being any physical incapacity or valid reason,
may amount to mental cruelty".
8 The learned counsel for the appellant submitted that
the evidence of the wife clearly shows that at that time her
menstrual period was going on and it is because of this that
she refused to allow the husband to consummate the marriage.
The learned counsel for the appellant has also pointed out that
except for the period of four days that they had gone to
Mahabaleshwar, there is no allegation made by the husband
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that the wife thereafter also continued to refuse to have sexual
intercourse. On going through the evidence, we find this is so.
Thus, just on the basis of the evidence of the respondent that
during 3 to 4 days that they were in Mahabaleshwar the wife
did not allow him to have sexual intercourse, cannot be said to
be such as to cause mental or physical cruelty to the husband.
It is also to be noted that the wife has given a valid explanation
for refusal to have sexual intercourse during this period i.e. her
menstrual cycle was going on.
9 In the case of Suman Kapur Vs. Sudhir Kapur;
2009 (3) Mh.L.J. (SC) 153, the Supreme Court, after
considering several judgments has observed that "if it is
mental cruelty, the enquiry must begin as to the nature of the
cruel treatment and then as to the impact of such treatment on
the mind of the other spouse. Whether it caused reasonable
apprehension that it will be harmful or injurious for him to live
with the respondent ultimately is a matter of inference to be
drawn by taking into account the nature of conduct and its
effect on the complaining spouse. Whether one spouse has
been guilty of cruelty to other is essentially a question of fact
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and previously decided cases have little, if any, value. The
Court is expected to bear in mind the physical and mental
condition of the parties as well as their social status, and
should consider the impact of the personality and conduct of
one spouse on the mind of the other weighing all incidents and
quarrels between the spouses from that point of view."
10 The Supreme Court in the case of Naveen Kohli Vs.
Neelu Kohli; 2006(4) Mh.L.J. (SC) 242 while dealing with an
appeal arising from a matrimonial petition filed by the husband
seeking a decree of divorce on the ground of cruelty, has
observed that "the foundation of a sound marriage is tolerance,
adjustment and respecting one another. Tolerance to each
other's fault to a certain bearable extent has to be inherent in
every marriage, Petty quibbles, trifling differences should not
be exaggerated and magnified to destroy what is said to have
been made in heaven. All quarrels must be weighed from that
point of view in determining what constitutes cruelty in each
particular case and as noted above, always keeping in view the
physical and mental conditions of the parties, their character
and social status. A too technical and hypersensitive approach
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would be counter productive to the institution of marriage.
The Courts do not have to deal with ideal husbands and ideal
wives. It has to deal with particular man and woman before it."
In the present case, none of the incidents of the alleged
conduct of the respondent could be termed as intolerable.
11 Besides the allegations that the wife refused to have
sexual intercourse during 3 to 4 days period during which they
had gone to Mahabaleshwar for honeymoon, husband has
relied on his evidence that the wife used to pick up quarrel with
him and his parents and she never gave respect to his parents.
As far as these allegations are concerned, no material
particulars have been stated by the respondent and only vague
and general allegations have been made by him. These, in our
opinion, are not sufficient to prove that the wife treated him
with cruelty.
12 The husband has tried to contend that on 24th, 25th
and 26th January, 2010 his wife went to Nashik for office work
despite the fact that he had advised her not to to do so as they
were newly married. The marriage had taken place on
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8.12.2009. This means that after 1½ month of the marriage,
the wife had gone to Nashik for office work. It is an admitted
fact that the wife was working and in such case, if it was
necessary for her to go on office work, no fault can be found
with her for going to Nashik. Hence, going to Nashik on office
work cannot be termed as an act of cruelty.
13 Even if it is assumed that all the aforementioned
incidents did occur in the manner as stated by the respondent,
still in our opinion, the conduct of the appellant was not of such
a character and gravity so as to give rise to a reasonable
apprehension in the mind of the respondent that it will be
harmful or injurious for him to live with her or it would be
impossible for them to live together without mental agony or
torture. In the other words, the respondent's conduct was not
such that no reasonable person would tolerate it. Parties to the
marriage, tying nuptial knot, are supposed to bring about the
union of two souls. It creates a new relationship of love,
affection, care and concern between the husband and wife and
that it brings two families together. Such ties cannot be
allowed to be severed on the grounds/incidents/conduct which
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are ordinary wear and tear of matrimonial life. None of the
aforementioned incidents or conduct of the wife, in our opinion,
could be termed as "grave and weighty" to be treated as the
cause for cruelty. It is true that the word "cruelty" is not
defined and, therefore, it is not possible to say as to when the
conduct of other spouse constitutes cruelty, however, the door
of cruelty cannot be opened so wide otherwise divorce will
have to be granted in every case of incompatibility of
temperament. That was not the intention of Legislature when
the ground of cruelty was made available for seeking a decree
of divorce.
14 Thereafter, the case of the respondent is that the
appellant used to wear shirt and pant while going to office
which was not liked by him. The appellant and the respondent
are both educated persons. Both are working. It is not his case
that she used to wear shirt and pant every day while going to
office. Looking to the strata of the society from which they are
coming, assuming that the wife used to wear shirt and pant
while going to office on few occasions, it would not be such
conduct on the part of the wife as to grant divorce on the
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ground of cruelty.
15 The last incident on which reliance has been placed
by the husband is that the wife treated him with cruelty on
2.2.2010 when she returned home from office at 10.00 p.m.
The respondent tried to convince the wife to behave in a
proper and dutiful manner. Thereupon, she picked up quarrel
and pushed the husband and started to collect her clothes and
belongings in order to go to her parents house. As far as this
incident is concerned, it is noticed that the husband and his
parents convinced her and she did not leave the house that
night. On the next day, the husband and his parents called her
parents and they convinced her and she was convinced.
16 In the case of Shobha Rani Vs. Madhukar Reddi;
(1998) SCC 105, the Supreme Court had an occasion to
examine the concept of cruelty. In this case, the Supreme
Court has interpreted the word "cruelty". The "cruelty" which
has not been defined in the Act, though it has been specifically
used in Section 13(1)(ia) of the Act, the Supreme Court
observed that "the cruelty is a course of conduct of one which
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is adversely affecting the other. The cruelty may be mental or
physical, intentional or unintentional. If it is physical, it is a
question of fact and degree. If it is mental, the enquiry must
begin as to the nature of the cruel treatment and then as to the
impact of such treatment on the mind of the spouse. Whether
it caused reasonable apprehension that it would be harmful or
injurious to live with the other, ultimately, is a matter of
inference to be drawn by taking into account the nature of the
conduct and its effect on the complaining spouse. There may,
however, be cases where the conduct complained of itself is
bad enough and per se unlawful or illegal. Then the impact or
the injurious effect on the other spouse need not be enquired
into or considered. In such case, the cruelty will be established
if the conduct itself is proved or admitted. The absence of
intention should not make any difference in the case, if by
ordinary sense in human affairs, the act complained of could
otherwise be regarded as cruelty. Intention is not a necessary
element in cruelty. The relief to the party cannot be denied on
the ground that there has been no deliberate or willful ill-
treatment."
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17 The married life should be assessed as a whole and a
few isolated instances over certain period will not amount to
cruelty. The ill-conduct must be preceded for a fairly lengthy
period where the relationship has deteriorated to an extent
that because of the acts and behaviour of a spouse, one party
finds it extremely difficult to live with the other party no longer
may amount to mental cruelty. Mere trivial irritations, quarrels,
normal wear and tear of married life which happens in day to
day life in all families would not be adequate for grant of
divorce on the ground of cruelty. Only sustained unjustified
and reprehensible conduct affecting physical and mental health
of the other spouse may lead to mental cruelty. There is no
evidence to that effect in the present case.
18 We have already verified all the allegations made in
the petition, written statement as well as the evidence of both
the parties. On going through the same, we are satisfied that
on the basis of such instances, the marriage cannot be
dissolved. In this view of the matter, the appeal is allowed.
The judgment and order dated 19.12.2012 passed by the
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Family Court No.2, Mumbai in Petition No. A-419 of 2011
thereby dissolving the marriage between the parties, by a
decree of divorce, is set aside.
19 No order as to costs.
20 Decree be drawn up accordingly.
[SHRI. P.N.DESHMUKH, J.] [SMT. V.K.TAHILRAMANI, J.]
kandarkar
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