Divorce to wife (498a wife) on grounds of Mental Cruelty & 498a - Ajay Ashok Khedkar Vs Sou. Laleeta Ajay Khedkar

                                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                CIVIL APPELLATE JURISDICTION
                                         FAMILY COURT APPEAL NO. 66 OF   2006

Ajay Ashok Khedkar .... ..... ..... ..... Appellant.

V/s

Sou. Laleeta Ajay Khedkar..... .... ..... ....Respondent.

Mr.Hitesh Vyas, Adv. For the appellant.
Mr.Sachin S. Pande, Adv. For the respondent.

CORAM: A.P.DESHPANDE
AND
SMT. R.P. SONDURBALDOTA,  JJ.
   
Date:12th  April, 2010.

ORAL JUDGMENT: (Per Deshpande, J.)


This is family court appeal filed by the unsuccessful husband whose petition for divorce has been dismissed by the Family Court. The appellant and the respondent’s marriage was solemnized as per
Hindu rites and customs at Pune on 8.3.2001.   The marriage was an arranged marriage and after the marriage the respondent  came to reside with the appellant.   The appellant’s mother resides along
with   the   appellant.     The   petition   for   divorce   was   filed   on   the ground  of   mental   cruelty  under   section  13(1)(i­a)   of   the  Hindu Marriage Act, 1955.

2. According  to  the  petitioner  on  the  wedding  night  itself   the respondent  alleged  that  she  was  deceived  in  regard  to  income  of the  appellant.     The  respondent  allegedly  stated  that  the  salary  of
the appellant as informed to her was much more than what he was actually  receiving.     It   is   also  alleged  that   with  reference   to  the number of spectacle the respondent taunted the appellant by saying
that   she   was   made   to   perform  marriage   with   a   blind   person. Touching  those  issues  the  respondent  allegedly  started  quarreling with the petitioner and insulting the petitioner.  It is the case of the appellant that since beginning the behaviour of the respondent was arrogant   and   rude   and   immediately   after   the   marriage   the respondent was insisting that the petitioner should stay separately
from his mother  in one  of the  two  flats  owned by the  appellant’s family  situated at Raviwar Peth, Pune.  According to the appellant he tried to convince the respondent that his mother is old and there
is no one else to look after her and hence refused to stay separately. It is also the case of the appellant that the respondent gave threats that   she   would   commit   suicide   if   the   appellant   fails   to   reside
separately.     The   respondent   also   denied   conjugal   rights   to   the appellant so as to coerce him to stay separate from his mother.  On the  above  referred  allegations  touching  mental  agony  and  torture
divorce petition was filed.

3. Sometime  in   December   2002   the   respondent   went   to   the house  of   her   parents   for   delivery.     She  delivered  a  girl   child  on 26.2.03.     Despite  passage  of  enough  time  the  respondent  did  not join  the  company   of   the  appellant.     According  to  the  appellant because   of   the   insistence   on   the   part   of   respondent   to   stay separately  the  marital  life  was  disturbed  and  peace  and  harmony was lost.
On   3.5.03   the   father   of   the   respondent   brought   the respondent to the house of the appellant but without meeting the appellant or his mother respondent's father went away.   On 6.5.03 the respondent called her parents and brother at the house of the appellant.  The near relations of the respondent quarreled with the petitioner and his mother and after creating a scene threatened the appellant that they would implicate the appellant and members of his   family   in  false   criminal   cases.   So  threatening   the  appellant, father   and  brother   of   the  respondent   took  her   away  along  with them.  While leaving the appellant’s residence they said that only if he   resides   separately   the   respondent   will   be   sent   back.     The appellant   immediately   sent   a   notice   on   9.5.03   asking   the respondent to join the company and cohabit with the appellant but instead  of   joining  the  company  of   the  appellant   the  respondent initiated criminal case under section 498A of IPC not only against the  appellant   and  his  mother  but   three  other  near  relations  who were  staying separately including  the  uncle,  aunt and husband of the aunt.  All the persons accused of having committed the offence under   section  498A  of   IPC  were  arrested  by  the  police  and  they were detained in custody.   This is the main circumstance which is relied upon by the learned counsel for the appellant to contend that lodging   of   false   case   which  resulted  in  arrest   and  detention  of family members of the appellant is singularly sufficient enough to hold  that  the  respondent   is  guilty  of   causing  mental  cruelty  and agony  to  the   appellant   and  thus   pressed  for   grant   of   decree   of divorce.   According to the learned counsel for the appellant arrest and  detention  of   the   family   members   and  near   relations   of   the appellant   in   false   case   has   caused   him  utmost   mental   torture. During pendnecy of divorce petition the said criminal case came to be  decided  by  a  judgment   dated  13.5.05  by  Judicial   Magistrate, First   Class,   Pune   acquitting   the   appellant   and   all   his   family members from the charge under section 498A of IPC.

4. Perusal  of  the  judgment  clearly  reveals  that  the  prosecution utterly failed to prove the case put forth by the complainant.   The Judicial   Magistrate   has   recorded   categoric   finding   that   the
complainant’s own testimony falsifies  the prosecution case that the complainant  was  treated  cruely  and  was  harassed  by  the  accused persons  with  a  view  to  coerce  her  and  her  parents  to  meet  their
unlawful   demand   of   Rs.50,000/­.     The   Magistrate   has   totally disbelieved the version of the complainant/wife and has acquitted the   accused   persons.     On   a   careful   reading   of   the   judgment rendered in the case of prosecution under section 498A of IPC one thing is crystal clear and it can be safely assumed that the wife had filed a false case not only against her husband and mother­in­law but had unnecessarily roped in other near relations.   It is obvious that  on  account   of   arrest   and  detention  of   the  husband  and  his family members respondent has treated the appellant with utmost mental cruelty and the appellant has suffered agony.  It will not be out  of   place  to  mention  that  the  complaint  filed  by  the  wife  was calculatedly designed in as much as it was a sort of counter blast to the divorce petition filed by the husband.   The appellant had filed divorce petition on 16.6.03 whereas the complaint was lodged by  the respondent­wife on 11.7.03.

5. Learned counsel for the appellant submits that the appellant and  his  family  members  including  ladies  who  did  not   stay  along  with   the   appellant   were   arrested   and   detained   causing  utmost
humiliation and embarrassment and agony to the appellant.   This  solitary   incidence   would   itself   constitute   mental   cruelty   even   if  other  circumstances  are  not  taken  into  account  and  thus  the  trial  court has erred in law in dismissing the divorce petition.  Para 29 of the judgment of family court deals with this aspect of the matter by observing :
“There   can  not   be   absolutely   two  opinions   regarding legal   proposition  that   if   the  wife   filed  false   criminal   cases against   the   husband,   her   conduct   does   amount   to  causing mental   cruelty   and  torture   to  him,  therefore,   the   husband becomes   entitled   for   a   decree   of   divorce.     The   necessary condition  for  constituting  such  legal  cruelty  is  that  the  wife has   indulged   into   making   false   and   reckless   allegation   by filing false complaint to the police.  A singular complaint filed by wife  under section 498A of IPC against  the husband  and his family members can not indicate the tendency of wife to indulge into making such false allegation.”
We  fail   to  understand  the  logic  behind  the  reasoning  adopted  by the  family  court   to  hold  that   a  singular  complaint   of   this  nature under section 498A of IPC resulting in arrest and detention of the
family   members   and   relatives   thereby   causing   utmost embarrassment,   humiliation   and   suffering   does   not   constitute mental   cruelty.   It   is   illogical   that   more   than  one   complaint   are necessary  to  be  filed  to  constitute  mental   cruelty.       In  our   view, embarrassment, humiliation and suffering that is caused on account of   arrest and detention of appellant and his family members and
relatives in a false case does constitute mental cruelty to enable the husband  to  seek  decree  of   divorce  on  this   sole  ground.     In  our considered  opinion,     the  approach  of   the  family  court   is   wholly
perverse and the reasoning cannot be sustained in law.  In regard to other circumstances the family court has observed :
“At   the   most   one   can   infer   that   this   conduct   of   the respondent may have caused some disharmony between the couple but in no way it can be said that it was sufficient to
constitute a mental cruelty to petitioner or his mother.”
Without  deliberating  on  all   the  circumstances  in  detail   we  are  of the clear view that cumulative effect of the behaviour and conduct of   the   respondent   is   good   enough   to   draw   an   inference   that respondent   has   caused  utmost   mental   pain  and  suffering  which constitute mental cruelty to the appellant and hence the appellant is entitled for decree of divorce on the ground of cruelty.

6. This   brings   us   to  the  consideration  of   question  of   granting maintenance   to  the  girl   child  who  is   aged  about   8  years.     The family  court   in  exercise  of   powers  under  section  24  had  granted interim  maintenance  of   Rs.700/­   p.m.  whereas   this   Court   by  an interim order has raised it to Rs.1000/­ p.m. The appellant so also the respondent are both gainfully employed.   They are earning in
the  range  of   Rs.5000  to  7000  per   month  each.     The  child  is   in custody   of   the   respondent­mother.     Learned   counsel   for   the appellant on instructions from his client who is present in the court submitted   that   the   appellant   would   pay   a   sum  of   Rs.1.5   lacs towards permanent alimony for the maintenance of child.   Having found  the  said  amount   insufficient   we  persuaded  the  counsel   for the appellant   to raise the amount so that monthly interest on the said  amount  works  out  in  the  range  of  Rs.2000  per  month.    The mother   of   the  appellant   has  come  forward  to  contribute  further sum of Rs.1.5 lacs towards maintenance of the child.  In our view if the appellant pays sum of Rs.3 lacs by way of permanent alimony for   the   maintenance   of   child   the   said   amount   if   kept   in   fixed deposit   can  fetch  interest   of   Rs.2000/­   per   month  and  the  same could be utilized by the respondent for upbringing of the daughter. In the result we pass the following order:
(i) The  marriage  of   the  appellant   and  respondent   stands dissolved by a decree of divorce under section 13(1)(i­a) ;
(ii) The   appellant   shall   pay   sum  of   Rs.3   lacs   by   way  of  permanent alimony for the maintenance of the girl child.  The  said amount of Rs.3 lacs shall be invested in fixed deposit in a  nationalized   bank   and   the   respondent   is   permitted   to  withdraw the interest accrued thereon quarterly. The amount  of Rs.3 lacs shall be invested in the fixed deposit within two  months  from  today  in  the  name  of  the  minor  child  and  the  respondent would be shown as her guardian;
(iii) The said sum of Rs.3 lacs shall be kept invested in fixed  deposit till the child attains majority.
(iv) Appeal is allowed with no order as to costs.

8.4.2010.

At this stage the learned counsel for the respondent seeks stay  of this order.  Having regard to the peculiar facts and circumstances we do not find any reason to stay the impugned order.   Hence the  prayer is rejected.