In this Mumbai High Court judgment of 2005, the HC rejected appeal by wife made against grant of divorce to husband on grounds of cruelty. The case has several important points regarding various types of evidences etc, which are made bold in judgment below:
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 80 OF 2005
Smt. Hemanti Hemchandra Talekar ..Appellant
Shri Hemchandra Bhagwan Talekar ..Respondent
Mr.Rahul Joshi with Mr. Ambar Joshi for the appellant
None for the respondent.
CORAM : D.B.BHOSALE &
Judgement Reserved on : 1st
Declared on : 16th
FEBRUARY , 2010
JUDGMENT (Per R.Y. Ganoo, J.) :
1. The appellant-wife has filed this Family Court Appeal against the
judgment and order dated 1.4.2005 passed by the learned Judge of the
Family Court, Mumbai (hereafter referred to as “the learned Judge”) in
Petition No. A-1175 of 2001 filed by the respondent herein under Section
13(1)(ia) of the Hindu Marriage Act, 1955 (hereafter referred to as the said
2. The appellant-wife got married with the respondent-husband on
13.2.1996 as per Hindu Vedic Rites and both of them started residing at the
house at Chembur, Mumbai. The appellant and the respondent have a
daughter by name Ms. Mitali. The respondent filed the aforesaid petition
No. A-1175 of 2001 in the Family Court at Mumbai on 20.8.2001, alleging
therein that the appellant treated the respondent with cruelty. The
allegations of cruelty were as follows:
1. Appellant used to abuse him and his parents in filthy language and
insult him in public and on the street and used to pick up quarrels
with him not allowing him to go to work.
2. Appellant used to give threats of death consequences.
3. Appellant used to refuse to cook food for him.
4. Appellant used to give threats of damaging T.V.Set, fridge, tape-
5. Appellant had assaulted the respondent on 6.1.2001 and he had to
take medical treatment.
6. Respondent’s mother was also assaulted by the appellant.
7. Appellant was in habit of leaving the matrimonial house without
respondent’s knowledge and consent.3
8. By her quarrelsome behaviour appellant used to disturb the peace
of residential building and was creating a nuisance for the
neighbours thereby disturbing the peace.
9. Appellant ruined reputation of the respondent in the society.
3. Upon service of copy of the petition, the appellant filed her written
statement and denied the allegations levelled against her. The appellant
stated various facts in the written statement so as to claim that the
respondent had treated the appellant with cruelty and despite that she
wanted to stay with the respondent. In substance, the appellant disputed
allegations levelled against her and prayed for dismissal of the petition.
The learned Judge of the Family Court, after considering the pleadings
framed following issues:
(i).Does the petitioner prove that the respondent has treated him with
cruelty after solemnization of the marriage ?
(ii).Is the petitioner entitled for permanent custody of their daughter
(iii).Does the respondent prove that the petitioner is taking advantage of
his own wrong?4
(iv).Is the petitioner entitled for a decree divorce?
4. In the course of trial, the respondent-husband Mr.Hemchandra gave
evidence as P.W.1. The respondent examined one Mr. Amarnath Gaikwad,
P.W.2., who happened to stay in the very building in which the appellant
and the respondent were staying. The respondent examined Advocate Ms.
Helan Joshi as P.W.3 who attempted to settle the matter. Father of the
respondent by name Bhagwan Talekar was examined by the respondent as
P.W.4. The appellant gave evidence as D.W.1. No other witness was
examined on behalf of the appellant. Various documents were exhibited
during the trial and important documents out of them are as follows:
i) Exhibit 26 is letter dated 20.12.1999 sent by respondent to Senior P.I.
of Social Service Department of Mumbai Police stating that the
appellant was using abusive language and she was troubling the
ii) Exhibit 28 is letter by father of the appellant to the father of the
respondent stating that the appellant stayed away from the respondent
from 2.9.1998 to 9.9.1998 without telling respondent.
iii)Exhibit 29 is letter sent by Advocate Ms. Helen Joshi, being letter
dated 5.11.1996 addressed to Senior P.I., Tilak Nagar Police Station, 5
complaining about the behaviour of the appellant.
iv) Exhibit 30 is letter dated 26.9.2001 sent by Mr. M.S.Adhav, advocate
of the respondent complaining about the threats administered by the
appellant, assault made by the appellant upon the respondent and
various other complaints.
v) Exhibit 32 is OPD papers of V.C.Gandhi Municipal Hospital,
Mumbai regarding the respondent.
vi) Exhibit 45 is letter dated 12.6.1996 signed by various occupants of
the building where the appellant and the respondent were staying and
in this letter grievance was about the behaviour of the appellant.
There is mention about the suicide attempt made by the appellant.
5. The learned Judge of the Family Court, after considering the entire
record and issues framed by him came to the conclusion that the marriage
between the appellant and the respondent is required to be dissolved by
decree of divorce and accordingly, decree was passed under Section 13(1)
(ia) of the Hindu Marriage Act, 1955. The prayer for custody of the minor
daughter “Mitali’ was rejected. Hence the custody of “Mitali”continued
with the appellant. The respondent was ordered to pay maintenance of Rs.
2000/- per month to the appellant. Similarly, a sum of Rs.2000/- per month
was ordered to be paid towards the maintenance of the minor daughter
‘Mitali’. The maintenance was ordered to be paid w.e.f. 1.4.2005. It is to
be noted that respondent has not challenged the order by which custody of
the minor daughter ‘Mitali’ was rejected. Similarly, the respondent has not
challenged the order of maintenance granted in favour of the appellant and
‘Mitali’. The respondent was duly served, however, respondent did not
appear before this Court at the stage of final hearing of this appeal.
6. Learned Advocate Mr. Joshi, appearing on behalf of the appellant had
taken us through the entire record and had made an attempt to suggest that
the respondent has failed to prove that the appellant treated the respondent
with cruelty and as such the decree could not have been passed by the
learned Judge. Learned Advocate Mr. Joshi had also submitted that the
learned Judge of the Family Court has not considered the evidence of the
appellant by which it was contended by appellant that the respondent had
treated the appellant with cruelty and that the respondent was at fault.
Learned Advocate Mr. Joshi had also submitted that the appellant and the
respondent had stayed at Pune and even at Vasai and therefore it could be
said that the appellant and respondent enjoyed good matrimonial relations
and therefore the decree of divorce should not have been passed. Learned 7
Advocate Mr. Joshi had taken us through the evidence of the witnesses as
mentioned aforesaid and had submitted that the appellant had made every
effort to see that she behaves as per the desire of the respondent and his
family members and she had taken pains to behave as dutiful wife and
despite that the respondent had picked up quarrels with her and has taken
the advantage of the situation and had filed the petition for divorce
7. Learned Advocate Mr. Joshi had submitted that the respondent had
filed false complaints against the appellant only to create a record against
the appellant. Learned Advocate Mr. Joshi had submitted that the evidence
on record has not been properly appreciated by the learned judge and the
inferences arrived at by the learned Judge are incorrect and that the decree
passed by the learned Judge of the Family Court is required to be set aside.
8. We have considered the submissions advanced across the bar and for
following reasons we are not inclined to accept the same. We have gone
through the impugned judgement and record and we are of the view that
the learned Judge of the Family Court has considered the evidence placed
before it in the proper perspective and has rightly arrived at the
that the behaviour of the appellant qua the respondent clearly disclosed
the appellant had treated the respondent with cruelty. The various
allegations of cruelty are set out in the earlier part of the judgment.
perused the record with reference to those points, we are inclined to
observe that the respondent has proved that the appellant had treated the
respondent with cruelty. It is seen that the marriage took place on
13.2.1996 and thereafter the respondent had filed complaint to the Social
Service Wing of Mumbai Police by addressing letter dated 20.12.1999, at
Exhibit 26. The respondent has in the said letter narrated as to how
appellant abused the respondent and as to how the appellant behaved with
the respondent. The contents of the said letter clearly indicate that the
respondent had to take recourse to the police authorities for the purpose of
resolving the matrimonial dispute. In the normal course, if the behaviour
the appellant was proper, there was no reason for the respondent to make
any grievance to the Social Service Wing of the Mumbai Police making a
request to look into the matrimonial dispute between appellant and
9. The respondent has given evidence and he has been able to bring on
record sufficient material to show that the appellant treated the respondent
with cruelty. Following evidence can be quoted to show as to how the
appellant behaved with the respondent.
“I say that the respondent used to abuse me and my parents in filthy
language and insult me in public and on street and used to pick up
quarrel with me and not allowing me to go to work and gave threat of
“I say that the respondent leaves the house in morning and return late
at night and when I request the respondent to prepare the food, the
respondent refused to do the work. Hence myself and my parents
were to sleep without food and this happened often. I say that the
respondent is hot tempered and the respondent is in the habit of
quarreling in vain without any cause.”
“I say that the respondent used to leave the house at night for work
and return late to sleep, and when asked about the same, the
respondent gave threat of damaging of T.V. Set, Tape Recorder,
Fridge etc. I say that due to fear of damaging the materials, I kept
“I say that the respondent had assaulted me on 6.1.2001, and I took
medical treatment from Dr. Joy Y. Patankar (ORTHO).”
“I say that the residents of the Bldg. No.3 has written complaint to
Senior Inspector of Police, Tilak Nagar, Chembur, Mumbai on
6/11/1996 of the respondent.”
“I say that the respondent is in the habit of leaving house without my
consent. I say that I informed to the father of the respondent and the
father of the respondent had given in writing to my father on
7/9/1998, that the respondent without my consent was living with her
father from 2/8/1998 to 9/9/1998. I say that I possess the writing of
the father of the respondent in which he had undertaken herein after if
the respondent stay with her father, then sole liability will be of the
“I say that, through my Advocate on 5/11/1996, I had informed to Sr.
Inspector of Police, Tilak Nagar, Chembur for ill treatment and
harassment and threats.”11
“I say that I had informed to the tenants of Building regarding ill-
treatment of the respondent. I say that the residents of the building
had taken signatures of tenants on paper and had informed the
respondent not to disturb the peace of building and the respondent
had executed writing in the interest of the society, but did not
“I say that the respondent since last one year is sleeping separately
from me. I say that I have not had any sexual relation with the
respondent since last one year and no co-habitation in between me
and the respondent.”
10. Perusal of evidence of the respondent shows that the respondent
adhered to his testimony even in the cross examination. The appellant has
not been able to elicite any material so as to raise doubt about the
of the respondent . The evidence of the respondent will have to be accepted
11. It must be mentioned that all the evidence quoted above clearly 12
indicates as to how the appellant was behaving with the respondent. The
case of the respondent that the appellant used to pick up quarrels with the
respondent and his parents and used abusive language is made out in letter
dated 12.6.1996 sent by the occupants of the building where the parents and
the respondent were residing, being letter at Exhibit 45. So far as this
document is concerned, the evidence of the appellant itself goes to show
that the appellant has admitted that she had made inquiry with two persons
namely Mr. Jadhav and Mr. Sarmalkar, who were the signatories to the said
letter and her evidence goes to show that these two persons had admitted
that they had signed the letter. The learned Judge of the family Court has
given appropriate weightage to this document at Exhibit 45 to hold that the
behaviour of the appellant is quarrelsome. The respondent in support of his
case that the occupants of the building had observed that the appellant was
picking up quarrel, examined Amarnath Gaikwad, P.W.2. We have perused
the evidence of Amarnath Gaikwad. Reading of his evidence would clearly
go to show that he supports the case of the respondent. His evidence goes
to indicate that the contents of the letter at Exhibit 45 are true.
Gaikwad, P.W.2 is an independent witness and he has no reason to state
falsehood against the appellant. In substance, the respondent has been able
to make his case good by examining the occupants of the building. The 13
very fact that as many as 29 persons residing in the building where the
appellant and the respondent were staying have come forward to write a
letter and mention the behaviour of the appellant itself is indicative of
fact that the allegations levelled by the respondent against the appellant
were true. The learned Judge of the Family Court has rightly appreciated
the importance of document at Exhibit 45 and has rightly arrived at the
conclusion that the respondent has been able to make out a case that the
appellant was treating the respondent with cruelty. It is the grievance of
respondent that the appellant used to stay at her father’s place without
permission and even without telling the respondent. This fact has been duly
proved by the respondent by placing on record letter at Exhibit 28 which is
addressed by the father of the appellant to the father of the respondent.
have perused the said letter at Exhibit 28 and the said letter in terms
confirms that the appellant stayed away from the respondent from 2.9.1998
to 9.9.1998 without telling the respondent and his relatives. This aspect
the matter has been rightly considered by the learned Judge of the Family
Court while arriving at the final conclusion. Surely, if the wife leaves
house of the husband and stays with her parents without informing the
husband or taking the husband in confidence, such a conduct will have to be
treated against the matrimonial duties and therefore the respondent was 14
right in claiming that the appellant had treated the respondent with
12. The respondent through his Advocate Mr.M.S.Adhav addressed a
letter dated 26.9.2001, Exhibit 30. Paragraph 3 and 4 of the said letter
clearly indicative of the fact that the respondent wanted to place on record
the behaviour of the appellant and was anxious in informing the police
authorities about behaviour of the appellant. We are inclined to look to
letter to come to the conclusion that the conduct of the appellant qua
respondent was such that the respondent was well advised to place on
record the objectionable behaviour of the appellant.
13. Advocate Mrs. Helen Joshi, P.W.3 was examined. She had
attempted to bring about settlement between the parties and the said efforts
were not successful. Since Advocate Helen Joshi, P.W.3, had made efforts
to settle the marriage between the parties, we are of the view that it would
not be proper for this court to look to her evidence for the purposes of
arriving at conclusion, particularly because she was doing the said job on
behalf of an organisation “Stri Chetana”.
14. The respondent has examined his father who was staying with the 15
respondent and he had an occasion to witness the conduct of the appellant.
Following portions of the evidence given by the father of the respondent is
“ I say that the respondent used to abuse me, and my wife and
the petitioner in filthy language and insult us in public and on street.
I say that the respondent used to assault the petitioner. I say that the
respondent was always in habit of picking up quarrel and she used to
go and stay at her matrimonial home without our permission. I say
that the respondent never allowed me and my wife to touch daughter
Mitali and always used to leave Mitali at her maternal home with her
mother. The respondent’s father had given a letter to me on 7.8.1998
saying that the respondent was living with him without our consent.”
“I say that the respondent was working and used to leave the
house in the morning and return late at night. I say that many times
the respondent refused to cook food and therefore we had to sleep
without food. I say that the respondent is hot tempered and the
respondent is in the habit of quarreling in vain without any cause and
the respondent has disturbed the peace of the house due to her loud
abuses and assault on the petitioner. I say that the respondent has ill-16
treated us and treated, me my wife and my son with cruelty. I say
that the residents of our building had tried to intervene and the
respondent used to abuse them also and therefore they had written a
letter to the Police Station about the respondent’s behaviour.”
We have perused the evidence of father of the respondent. This
evidence has gone unchallenged.
15. The appellant gave evidence. Her evidence indicates that she has a
grievance against the respondent and she has in her evidence stated various
events by which she wanted to say that the respondent treated her with
cruelty and despite that she wanted to adjust with the respondent and stay
with him. The appellant’s claims that she had filed complaints to the
station. In her evidence she has given complaint numbers of the N.C’s filed
by her. It must be mentioned that she has not produced any document to
show that such N.C’s were filed. She has in terms admitted in her cross
examination that she has not produced any document regarding she lodging
complaints with the police or even medical treatment given to her. This
will clearly go to show that the appellant came out with the false case
she having filed complaints against the respondent. Her case that she was
required to take treatment on various occasions on account of injuries
suffered by her, due to the behaviour of the respondent is not proved. The
appellant has admitted that she was aware about the letter at Exhibit 28,
being letter sent by father of the appellant to the father of the
is not the grievance of the father of the respondent that such a letter was
procured by the respondent or his family members. In view of this, the
contents of the said letter will have to be accepted as trustworthy.
16. There has been a reference to the intervention made by the Shakha
Pramukh of Shiv Sena. The parties were called at the Shakha for the
purpose of resolving the matrimonial dispute. The appellant has admitted
in the cross examination that the averment in paragraph 17 of the written
statement that Shakha Pramukh had intervened in the matter to resolve the
issue is correct. She has further admitted that the Shakha Pramukh had
come to her house to explain to her that she should reconcile and stay with
the petitioner. This will clearly indicate that the respondent had made a
grievance about the behaviour of the appellant to the police, as also to the
Shakha Pramukh of Shivsena as the respondent felt that the Shakha
Pramukh may be able to convince the appellant to change her behaviour.
The aforesaid admission on part of the appellant that the Shakha Pramukh 18
had visited house of the appellant and had told her to reconcile and stay
with the respondent would clearly go to show that even respectable persons
in the locality were convinced that the behaviour of the appellant required
change. In our view, this evidence on part of the appellant confirms that
allegations levelled against the appellant were true.
17. The appellant had in the examination in chief made a vain attempt to
show that she had stayed with the respondent at Pune. However, except her
bare word there is no other evidence to show that she had stayed with the
respondent at Pune in the changed circumstances. In our view, the bare
word of the appellant cannot be accepted. The appellant had enough
opportunity to bring on record evidence to support her stand.
18. It is the case of the appellant that the respondent treated her with
cruelty and despite that she had shown willingness to continue to have
matrimonial life with the respondent. Surely this fact must be within the
knowledge of the parents of the appellant. It is pertinent to note that the
appellant has not examined her parents or any other near relative to place
record the appropriate evidence to show that the appellant was behaving as
dutiful wife and the respondent was at fault. It is in these circumstances,
the evidence placed by the appellant before the court, to say many things
about the respondent and his parents cannot be accepted.
19. After having considered the entire evidence on record, we are of the
view that the conduct of the appellant indicates that she had treated the
respondent with cruelty. The respondent was justified in instituting the
petition for divorce on the ground of cruelty. In our view, the respondent
has been able to place on record appropriate evidence to discharge the
burden cast on him. Learned Judge of the Family Court has considered the
entire evidence in its proper perspective, and has discussed each and every
aspect of the matter so as to arrive at the conclusion as regards the
behaviour of the appellant qua the respondent. The learned Judge of the
Family Court has also appreciated the various documents which were
placed before him and has given appropriate weightage to the said
documents to come to the final conclusion in favour of the respondent. In
our view, the learned Judge of the Family Court has arrived at proper
conclusion on the basis of the evidence placed before the Court. We are
therefore inclined to accept the view taken by the learned Judge of the
Family Court. For the aforesaid reasons, we are not inclined to take a
different view than what has been taken by the learned Judge of the Family
Court. Hence, we are inclined to dismiss the appeal..
20. The custody of daughter Mitali is retained with the appellant and the
respondent has not filed any appeal. To that extent no observations are
required to be made by this Court.
21. The appellant has not challenged the order as regards the grant of
maintenance to herself and daughter ‘Mitali’. Hence no observations are
required to be made by this Court.
22. For the reasons mentioned aforesaid, the appeal is dismissed. In the
facts and circumstances of the case there shall be no order as to costs.
[R.Y.GANOO, J.] [D.B.BHOSALE, J.]