The relevant portions are made bold in Mumbai High court judgment below:

http://bombayhighcourt.nic.in/data/judgements/2010/CFCA1278205.pdf
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.68  OF 2005
Smt Nita alias Nathi
Hitendrakumar Sakariya,
aged 24 years, Occ: Household,
Hindu Indian Inhabitant of
Rajasthan, residing at C/o
Kantilal Dhar-Parmar Sumerpur
Main Bazar, Near M.P.Traders,
Dist.Pali, Rajasthan-306902.
.. Appellant
Vs
Shri Hitendrakumar Kaluram
Sakariya,
aged about 26 years,
Occupation Business, Hindu,
Indian Inhabitant of Mumbai,
residing at 84, Militia
Apartment, Block No.4, 1st
floor,
Mhatar-Pakhadi Road,Mazgaon,
Mumbai-400010.
.. Respondent
Mr Vishal Thakkar i/b M/s Kiran Jain & co, for the appellant.
Mr V.D.Walawalkar i/b Sameer B Bhalekar, for the respondent.
CORAM : D.B.BHOSALE AND R.Y.GANOO,JJ.
DATE     :    12 /03/2010.
ORAL JUDGMENT : (Per D.B.BHOSALE,J.)
1. This Family Court Appeal under section 19 of the Family
T2
Courts Act, 1984, is directed against the Judgment and order
dated 30.3.2005 passed by the Principal Judge, Family Court,
Mumbai.  By this judgment, a petition,   filed by the respondent-
husband, being Petition No.A-942 of 1997, has  been allowed
and the marriage of the appellant-wife and the respondent has
been dissolved by a decree of divorce on the ground of cruelty,
under section 13 (1)(i-a) of the Hindu Marriage Act, 1955 (for
short, “the Act”). While dissolving the marriage, the Family
Court held that the appellant-wife is entitled to permanent
custody of their son Aniket. The Family Court, however, has
negatived the appellant’s claim of Stridhan and has directed the
respondent  to pay  maintenance of Rs.2500/- per month each to
the appellant and to their  son Aniket.
2. The respondent has not challenged any part of the
impugned Judgment, and, therefore, learned counsel for the
parties have not addressed the court on the question of custody
of Aniket.
3. The brief facts, which are relevant to dispose of this
appeal, are recapitulated as under:  The parties were married on
20.5.1994 at Sumerpur, Rajasthan according to Hindu Vedic
Rites and Customs of the community. After the marriage, the 3
parties stayed at their native place for about a month and came
to Mumbai and started residing in the joint family at Militia
Apartment, Mazgaon, Mumbai.  They cohabited for a period of
about two years and on 29.6.1996 the appellant left the
matrimonial home last and thereafter she did not return.
During the period of two years, according to the respondent,
there were several incidents causing cruelty to the respondent
and making it impossible for him to live with the appellant. The
respondent, therefore, filed   petition for divorce on the ground
of cruelty in May, 1997. 
After the service of summons, the appellant  filed a
criminal case under section 498-A of IPC against the respondent
and his family members some time in October, 1997 making very
serious and wild allegations against the respondent and his
family members.  She alleged that there is a custom in the
respondent’s family to share each others wives with other male
members in the family and that she was consistently and
persistently told by the respondent and the female members in
the family to have illicit relations with the brother and the
brother in-law of the respondent.  She also alleged that the
brother of the respondent-Puranmal also outraged her modesty.
In this case, all the accused were convicted by the learned 4
Magistrate vide his Judgment and order dated 1.12.2004.
Against the order of conviction, the respondent filed appeal and
in the appeal the respondent and his family members were
acquitted vide  Judgment and order dated 13.8.2008. A revision
against the order of acquittal is pending.  There is no dispute
that in  connection with this case the respondent and his family
members were arrested and released on bail.
4. Before we proceeded to hear this appeal on merits, with a
view to see if a settlement or reconciliation was possible, we
interviewed the parties in chamber and found that reconciliation
was not possible between them.
5. In order to examine and appreciate  whether the
behaviour of the appellant towards the respondent falls within
the legal conception of cruelty, we refer to the recent  Judgment
of the Supreme Court  in Suman Kapur Vs Sudhir Kapur,
2009 (1) SCC 422.  In this case, the Supreme court, 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 5
matter of inference to be drawn by taking into account the
nature of conduct and its effect on the complaining spouse. (Also
see Sbhobha Rani V Madhukar Reddi, (1998) SCC 105).  In
Dastane Vs Dastane, (1975) 2 SCC 326, the Supreme Court
defined the expression “cruelty” as follows. “The enquiry has to
be whether the conduct charged as cruelty is of such 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.”  Keeping this in view, we have heard the
learned counsel for the parties at considerable length and with
their assistance gone through the entire material including
depositions of the witnesses examined by both the parties.
6. The respondent-husband, to prove his case, examined
himself and his sister Rashmi Jain.  On the other hand, the
appellant examined herself and her father Kantilal Jain.  The
parties have also placed several documents on record including
complaints lodged by the appellant against the respondent and
his family members.  We have perused the depositions of all the
witnesses so also the documents to which our attention was
drawn by the learned counsel for the parties.
7. According to the respondent,  right from the beginning the 6
appellant was not willing to stay in the joint family and she
started demanding separate residence.  She  told the respondent
that their marriage was against her wish.   Her attitude, conduct
and behaviour towards him as well as his family members was
rude, hostile and annoying.  There is no dispute that after the
marriage they came to Mumbai and started residing in the joint
family house at Militia apartment.  The family of the respondent
was in jewelery business in partnership.  The respondent has
deposed that during quarrels the appellant used to assault him
with a broom and tear his clothes.  The respondent also made an
attempt to commit suicide. On one occasion, the appellant  tried
to hurt him with a knife.  This behaviour of the appellant,
according to the respondent, was to pursue her demand of
separate residence.
In August, 1994, the father of the appellant came to
Mumbai and took the appellant to their native place at
Sumerpur.  Within 15 - 20 days, the respondent along with his
sister Rashmi, her husband Pradeep and Pradeep's friend
Laxman went to Sumerpur to bring the appellant back.
According to the respondent, she was not inclined to come to
Mumbai.  With great persuasion she joined them and from there
they went to Nakoda, the holy place of Jain and from Nakada  to 7
Abu and then  to Ambaji.  From Ambaji they went to Sankeshwar
and then  came to Mumbai.  During this journey from Sumerpur
to Mumbai, at every place, the appellant made attempts to run
away  which  forced them to call her brother requesting him to
take her to Sumerpur.  At Ambaji, according to the respondent,
the appellant went to the extent of running away after locking
the door from outside when she was in the company of his sister
and their friend Laxman. At Abu she  threatened the respondent
and others that if they prevent her from going away she would
create a scene by shouting that she was being raped. 
After they came to Mumbai in November, 1994, the
respondent stated that  she stayed with the respondent  for  6-7
months and during this period she conceived.  In the last week
of July,1995 the brother of the appellant came to Mumbai and
took her to their native place for  delivery. She delivered the  son
Aniket  on 23.9.1995.  A month after her delivery, the
respondent’s parents went to Sumerpur  to bring  her back to
Mumbai. However, she did not come back to Mumbai with them.
After she returned to Mumbai with her father the respondent’s
father made arrangement of their separate residence in the flat
at Vaishali Apartment,  Byculla. The said flat was standing in the
name of the respondent’s brother,  who is a doctor. 8
In Vaishali Apartment, the respondent was living with the
appellant and their son. There also, according to the respondent,
the appellant used to quarrel on every minor issue.  On
19.6.1995, there was a quarrel, when the appellant    lodged
false police complaint with Byculla police station against him.
As a matter of fact, according to the respondent, the appellant
torn his clothes and slapped him with footwear on that day.  On
26.6.1996, the appellant in the morning was allegedly beating
the child and when the respondent tried to intervene she
assaulted him with footwear and broom.  She also took a knife
and when the respondent tried to hold her, it hurt him on his left
hand. This incident forced the respondent to lodge complaint
with the Byculla police station against the appellant. It appears
that both were called at the police station and advised to live
peacefully. Thereafter on 28.6.1996, a joint meeting was held at
Vaishali Apartment, which was attended by the respondent, his
father, brother,  the appellant, his brother, father and their
friends Jayantibhai, Jaichand, Uttam and the son of Jayantibhai.
The outcome of the meeting was not happy and the appellant
ultimately left the matrimonial home on 29.6.1996 along with
her father.
8. The respondent in his deposition  made reference to 9
several criminal complaints  lodged by the appellant against him
and his family members including the case under section 498-A
of IPC.  In that case, search warrants were  issued and
accordingly search of their three houses, three shops was taken.
The respondent has also made reference to the defamatory
articles published in Marathi newspapers “Mohan Police Times”
and “Hindu Version” (Exhibit-16 Colly) in which it was  alleged
that the appellant was forced to sleep with the respondent’s
brother, father and the brother-in-law. It was also mentioned in
the articles that there is a custom in the respondent’s family to
share wives of each other by male members in the family and
that  the respondent’s mother and sister-in-law also used to tell
the appellant to sleep with the respondent’s brother and the
brother-in-law (for short “the alleged custom).  After these
articles were published in the newspapers (Exhibit-16 ‘Colly’),
the respondent issued a notice to these papers (Exhibit-17).
9.  In the cross-examination, the respondent  has stated   that
his parents used to sleep in the living room and the respondent
and his brother used to sleep in two independent bed rooms.
Insofar as the incidents that occurred at Abu and Ambaji are
concerned, the case put to the respondent was replied by him
stating that “it is true that at Ambaji the appellant ran away 10
after locking the door from outside”.  Then the respondent, to
one of the questions,  replied stating that  NC complaints
(Exhibits 18,19,20) on 30.6.96, 19.2.96, 30.5.96 and 19.6.96
were lodged by the appellant only against the respondent. It is
pertinent to note that in  these complaints the appellant did not
whisper about  the alleged custom in the family. From perusal of
the cross-examination, we did not find any admission of the
respondent or nothing could be drawn forth in the cross
examination  so as to either disbelieve or discard the
examination-in-chief or any part thereof.  As a matter of fact, no
case was put to the respondent about certain instances/incidents
quoted  in his examination-in-chief.
10. The respondent’s another witness Rashmi Jain has, by and
large, supported the deposition of the respondent.  She was one
of the persons who accompanied the respondent to Abu, Ambaji,
and Sankheshwar. She  narrated in detail about the conduct of
the appellant at these places. She  deposed that at one point of
time the appellant threatened  that she would raise hue and cry
stating that she was being raped.  At this stage, we would like to
make reference to the evidence of the appellant in respect of the
incidents that occurred at Abu, Ambaji and Sankheshwar. She
admits their visit to these places. According to her, at one point 11
of time,  she was confined in a hotel room since she refused to
succumb to the pressure to have sexual intercourse with her
sister-in-law’s husband.  She further stated that when she was
confined in the hotel room,  the persons in the neighbouring
rooms rescued  her. She also deposed that during her stay at
Abu the respondent disclosed her about the alleged custom in
the family and was  threatened that if she did not succumb to
such demands she would have to face dire consequences.   At
Abu or at  Ambala or at Sarkeshwar, admittedly, she did not
lodge any complaint about the alleged  illtreatment meted out to
her by the respondent and others.
11. The appellant in her deposition has endeavoured to show
that she was subjected to cruelty  by the respondent and his
family members and her  emphasis was on the alleged custom in
the family. According to the appellant, the respondent’s brother
– Puranmal made attempt to outrage  her modesty by gestures,
by touching her private part and by forcibly kissing her.  She
also deposed that  Puranmal, at one point of time, asked her to
undress and allow him to have sexual intercourse with her.  She
further deposed that her sister-in-law Bhavna informed her
about the alleged family custom.  Though the appellant made
such a wild and serious allegation against the respondent and 12
his family members, she has not given the details as to when
these incidents  occurred.  From her evidence, it appears that
this all happened before she  went for her delivery   in August,
1995.  There she disclosed about the alleged family custom to
her father.  The father of the respondent  has deposed that the
appellant did inform him about the alleged custom and cruel
treatment meted out to her.  The father of the appellant,
however, simply advised her to take the respondent in
confidence and to tell him about the alleged demand of
Puranmal. He claims that he also made attempts to persuade the
appellant to desist from such treatment to the appellant but
there was no positive response from  the respondent.
Apart from these allegations, she has also deposed in her
examination-in-chief, to the incident of assault dated 19.6.1996.
According to the appellant, on this day, she was again assaulted
by the respondent and his family members merely because she
stated about the intention of Puranmal to have illicit relation
with her. In the cross, she reiterated that on 19.6.1996 she was
assaulted and that she lodged complaint (Exhibit-20) with the
Byculla police station. She, however,  admitted that the
complaint was lodged only against the respondent and there was
no allegation of assault in the complaint.  Further in reply to the 13
next  question, she stated: “It is not true that I have stated
falsely that Puranmal and other family members were intending
to have illicit relations with me and, therefore, I was assaulted.”
Thus, she tried to link the alleged assault with the complaint at
Exhibit-20.  Further, she claims that she informed about the
assault and illtreatment to her sister-in-law Bhavna when
Bhavna allegedly asked her to concede to the said demand
otherwise her life would become miserable. She thereafter
stated that her in-laws stopped her food.  We have perused the
complaint dated 19.6.1996 (Exhibit-20).  This complaint was
made only against the respondent and there was   nothing in the
complaint either about the alleged family custom or the assault
or  to the demand to have illicit relations with other male
members.  The complaint speaks about a telephone call received
by the appellant, and when the respondent inquired  as to whose
telephone it was, there was quarrel between the two. We have
also perused the other complaints lodged on 19.2.1996 and
30.5.1996 (Exhibits 18 and 19).  These complaints were also
against the respondent only and there was no allegation about
the alleged family custom. 
12. When the appellant returned to Mumbai after her
delivery, she along with the respondent and their child  started 14
residing separately at Vaishali Apartment.  Even thereafter, she
has stated that the family members of the respondent continued
to exert pressure upon her to have illicit relations with other
male members in the family. She has also deposed to  the
incident dated 19.2.1996. It would be relevant to reproduce the
relevant portion of her examination-in-chief (paragraph 18)
which reads thus:
“I say that on 19.2.1996 I refused to cater to
petitioner’s brother viz. Puranmal’s lust. I lodged a
complaint with the Byculla Police Stationwhich is
N.C.  Complaint bearing N.C.No.417/96.  After
lodging of the said complaint, the said Puranmal
tried to push me from the 2nd
floor, because I refused
to listen. I was also beaten.  I told that I would prefer
to die rather than have illicit relations.  I say that the
said Puranmal on hearing about me  rather to die
than have illicit relations, told and exhorted that he
was the only male in the world who can help me to
conceive a child and rest all are impotent. He also
told me that what difference it makes if he touches
my body.”
The N.C complaint referred to in the aforesaid paragraph
of the examination-in-chief is at Exhibit-18.  We have perused
this complaint.   It is against the respondent only. It states that
there was quarrel between the two when the respondent
allegedly abused and assaulted her with fist blows. She has  not
named Puranmal in this complaint.15
13. The appellant in her deposition, at two different places,
has given different explanation as to why  in the police
complaints (Exhibits-18, 19 and 20) she did not state anything
against Puranmal or about the alleged family custom.  Firstly,
she stated that she wanted to save the family image, and
secondly, she stated that because Puranmal had threatened to
kill her brother.  The appellant has further deposed that even
thereafter she made various complaints on 7.8.1997, (two
complaints), 24.9.1997 and 27.9.1997 (two complaints) against
the respondent.  Originals of these complaints, according to the
appellant, were produced  in 498-A case, being C.C.No.433/P of
2002 and  photocopies thereof have been  placed on record  in
these proceedings.  None of the complaints,  namely, the
complaints at Exhibits 18,19,20 or the complaints dated
7.8.1997, 24.1.1997 and 27.9.1997 makes any reference to the
alleged custom in the family. Considering to the number of
complaints, she lodged against  the respondent and his family
members, and even her subsequent conduct in making the
complaint under section 498-A of IPC and making such a wild
and serious allegations against the respondent and his family
members, her explanation for not stating anything about the
alleged family custom deserves to be rejected outright.16
  It is true, the appellant in her cross examination denied
that she filed false criminal cases against the respondent and his
family members only because the respondent filed the present
petition for divorce. She further denied that she filed the
criminal case only  to harass the respondent and his entire
family.  A specific case was  put to the appellant in the cross-
examination that “she filed false cases against the respondent
and his family members only with a view to harass them
mentally and to spoil their image and reputation in the society.”
This  was also denied by the appellant. She further denied that
the respondent lost his father only because of the false and dirty
allegations made against him. Merely because she denied the
suggestions made and/or  did not admit the case put to her, does
not mean that her allegations stand proved, as tried to be
canvassed by Mr.Thakkar, learned counsel for the respondent.
As is seen from the evidence referred to in the foregoing
paragraphs, the allegations about the family custom and the
allegations against Puranmal, it is clear that they were made for
the first time after the respondent filed the present petition for
divorce against her and after the summons in this case  was
served on her. While she was staying with the respondent and
his family members, she filed several complaints against them
and in none of those complaints  she made any such allegation 
against his family  members.  She had ample  opportunities to
lodge complaint at every stage. Even after she left matrimonial
home last in June 1996, she took  almost one and half year to
make these allegations against the respondent and his family
members.  Having regard to the totality of the evidence and the
circumstances established thereby, we are of the view that the
appellant has miserably failed to substantiate these nasty
allegations against the respondent and his family. We are
satisfied that the allegations against the respondent, Puranmal
and other members of the family at various places and from
stage to stage  made by the appellant are absolutely baseless,
irresponsible, wanton and scandalous and they were made for
the reasons best known to the appellant.
14. Mr.Thakkar, learned counsel  for the appellant, vehemently
submitted that the respondent is not entitled for a decree of
divorce  on the basis of the allegations made by the appellant in
her written statement and that the Family Court was wrong in
taking those allegations into consideration for allowing the
petition of the respondent.  He submitted that the respondent
failed to amend his pleadings raising a plea that he suffered
cruelty in view of the appellant’s allegations in her written
Statement  or  for that  matter in  her complaint under section 18
498-A of IPC and in the articles published in the newspapers.
He then submitted that the respondent has miserably failed to
prove the ground of cruelty for seeking divorce.  He submitted
that after the appellant filed her written statement bringing on
record the alleged custom in the family, the respondent ought to
have amended his petition to contend that the said  allegations
amount to  cruelty.  He submitted that merely because there are
allegations made by the appellant in her written statement, a
decree of divorce cannot follow unless the spouse seeking
divorce amends his pleadings and  incorporates that as a
aground for constituting cruelty. In support of this contention,
he placed reliance upon the judgment of the Supreme Court in
Pushpavathi @ Lalitha Vs Manickasamy, 2001 (4) Supreme
581.
15. In  Pushpavathi @ Lalitha’s case, the Supreme Court was
dealing with the appeal filed by the wife challenging the orders
passed by the courts below.  The petition filed by the husband on
the ground of cruelty and desertion was ultimately dismissed.
While dismissing the petition, in paragraph 5, it was held thus: 
“5. What is cruelty in one case may not amount to
cruelty in another case.  It is a matter to be
determined  in each case having regard to the facts 19
and circumstances of that case. If it is  a case of
accusations and allegations regard must also be had
to the context in which they were made, V.Bhagat v.
D.Bhagat (Mrs.). In the present case the husband
has not even taken  a ground in the memo of
appeal that the averments made by the wife
constituted mental  cruelty. Each and every
allegation made against husband by the wife in the
written statement defending a petition for divorce
filed against her cannot constitute mental cruelty.
The decision in V.Bhagat’s case referred by the High
Court in reversing  the judgment and decree of the
first Appellate Court has no relevance in the present
case for coming to the conclusion that the
allegations made by wife in the written statement
constitute mental cruelty. The Court had cautioned in
that case that unusual step of granting the divorce
was being taken only to clear up the insoluble mess
when the Court finds it in the interests of both the
parties.  The Court also opined that merely because
there are allegations and counter-allegations, a
decree of divorce cannot follow nor can it follow
merely on account of delay in disposal of divorce
proceedings.  The parties have not lived together as
husband-wife for last number of years by itself
cannot be a ground for annulling a marriage by
granting decree of divorce in absence of the
existence of one or the other ground permissible
under the Hindu Marriage Act, 1955. It is clear that
in this case the marriage has been dissolved and
decree of divorce passed by the High Court on the
facts on which it was not even sought by the
respondent-husband.”
    (emphasis supplied)
16. In the case before the Supreme Court, it appears  that the
husband’s  petition was initially decreed and the decree was
reversed by the District Judge.  Against the judgment of the
District Judge, the Second Appeal filed by the husband was 20
allowed by the High Court and that judgment was set aside by
the Supreme Court in the appeal and the order passed by the
first appellate court setting aside the decree of divorce was
confirmed.  It is against this backdrop, the Supreme Court has
observed that no plea was made either “in the plaint or in the
Memo of Appeal” before the High Court that any allegations
made by the wife in the written statement constitute mental
cruelty. 
17. It is now well settled that the expression “treating the
other party with cruelty” in section 13(1)(i-a) of the Act, is wide
enough to cover a cruel treatment even subsequent to the filing
of the petition by making wild and serious allegations in the
written statement which, according to the spouse against whom
they are made, are false, baseless, wanton and scandalous, and
a decree could be passed based on such allegations.  The
question is whether such allegations could be relied upon to
claim a decree of divorce on the ground of cruelty without
amending the petition and contending that those allegations
constitute cruelty.
18. In the present case, it is true that no amendment to the
pleadings was sought by the respondent after the wild 21
allegations were brought on record by the appellant in the
written statement to contend that those allegations constitute
mental cruelty. But it cannot be overlooked that the respondent
had no occasion  to raise this plea in appeal since  he had no
reason to file appeal against the impugned judgment.  That
apart,  it is pertinent to note that the appellant in her deposition
has repeated these allegations against the respondent   so also
cross examined the respondent and his witnesses in respect of
these allegations. On the other hand, the respondent while cross
examining the appellant and her witness, challenged and denied
the allegations about the family custom and put  a specific case
to the respondent that the criminal complaints and the
allegations made by the appellant in the written statement
caused harassment to him and his family members and that
spoiled their reputation in the society and as a result of the
allegations he lost his father. Thus,  it cannot be said that it was
not the respondent’s case that the allegations in the written
statement did not cause cruelty and harassment to him and his
family members.  We are of the opinion that the amendment of
the pleadings in such a situation was not necessary and  in the
absence thereof the respondent-husband can rely upon the
allegations made in the written statement to contend that he
and his family members were subjected to cruelty and/or those 22
allegations constitute mental cruelty. The judgment of the
Supreme Court in Pushpawati Latila’s case, in our opinion,  is
of no avail to the appellant in view of the peculiar facts and
circumstances of the case in hand.
19. This Court in Manisha Sandeep Gade Vs Sandeep
Vinayak Gade, 2005 (1) Bom.C.R. 554, while dealing with the
question whether the Family Court was right in granting divorce
merely on the basis of the allegations made by the appellant-
wife in her written statement, after referring to the Judgment of
the Supreme Court in V Bhagat V D Bhagat, 1994(1) SCC 337,
which was also referred by the Supreme court in Pushpavathi @
Lalitha’s case, observed that “where serious allegations are
made in pleadings, the consequent irretrievable break down of
the marriage (though not a ground by itself) will be a very
important circumstance to be considered while deciding
whether divorce should be granted or not.  Once such serious
allegations are made, it becomes clear that there is no chance of
parties coming together or living together again. Making of the
allegations and yet opposing divorce would mean a resolve to
live in agony only to make the life miserable for both the
parties.”  The Division Bench further made reference to the
following observations made by this court in Jaishree Mohan 23
Otavenkar V. Mohan G.Otavenkar 1987 Mh.L.J.160 : “the
fact that the respondent-husband had made the allegations in
his written statement is an admitted fact. Hence, it is not as if
the amendment of the petition is an absolute imperative. It was
not considered to be very much imperative to incorporate the
same in the petition by way of amendment.  All that the court
was required to see was as to whether the mental torture or
cruelty had resulted to the other spouse due to such wanton
allegations or not”.  After referring  to these observations so also
to some other judgments, the Division Bench further observed
that  “the moment such serious allegations are made in the
written statement, it becomes clear that there is an irretrievable
break down of the marriage”.  The Division Bench further
observed that “when one party to the petition has sought
divorce on some ground and the respondent to that petition does
not merely defend it to get it defeated, but makes further
serious allegations against the petitioner, it becomes a clear step
towards the dissolution of the marriage.”  The Division Bench
further held that burden to prove allegations in the written
statement was on the wife.  Once she failed to prove them, and if
they are not in consonance with matrimonial relationship, and
the husband complained that they have caused him agony,
inference that they constitute cruelty has to follow. 24
20. In the present case, the petitioner has approached the
court seeking dissolution of his marriage. It is his case that
there is a failure of marriage and he seeks to  point it out by
invoking a ground available under the law. The respondent, in
order to oppose the prayer for divorce, made a counter
allegation in the written statement which, in our opinion, clearly
show a failure of the marriage. Parties have led their evidence
on the allegations made by them in their pleadings.  Insofar as
the allegations made by the appellant in her written statement
are concerned,   at no point of time before filing the complaint
under section 498-A, were made against the respondent or his
family members. The appellant started making such allegations
only after the respondent filed the petition for divorce on the
ground of cruelty.   If these allegations were true, neither the
appellant nor her father would have kept quite for such a long
time.  The learned Judge was right in coming to the conclusion
that these allegations were baseless and false. He was,
therefore, right in granting the decree of divorce on the ground
of cruelty.
21.   Even if it is assumed  that the allegations made by the
appellant in her written statement cannot be relied upon to hold 25
that they constitute cruelty,   in our opinion,  the allegations
made by the respondents in the petition and  in his evidence are
also sufficient to hold that the ground of cruelty has been
proved.  The conduct of the appellant clearly shows that she had
made the life of the respondent and his family members
miserable. The manner in which she used to lodge criminal
complaints one after another against the respondent
undoubtedly would constitute mental cruelty. We are satisfied
that there is no chance of their coming together and living
together again and, therefore, their marriage has been rightly
dissolved by the trial court under section 13(1)(i-a) of the Hindu
Marriage Act.
22. That takes us to consider the issue of Stridhan and the
maintenance. The word “Stridhan” includes gifts made to the
wife at the time of marriage by her parents, brother, in-laws,
husband etc. She is absolute owner of her Stridhan property and
she can deal with it in any manner she likes. In the event of
divorce or desertion, she is entitled for her Stridhan and her
claim in respect thereof, if proved, must be allowed and
necessary directions to return the same must be issued by the
courts.  In the present case, there is no dispute that the certain
ornaments were gifted to the appellant by her parents in the 26
marriage,  as stated by her in her written statement and in her
evidence. The respondent has also deposed that  some
ornaments were gifted by him at the time of marriage to the
appellant. The appellant in her written statement and in her
evidence, however, has made reference only to the
ornaments/gifts made by her parents as Stridhan.  There are six
articles, mentioned in paragraph  11(O) of the written statement
and in paragraph 23 of her deposition, as Stridhan. She has not
claimed ornaments/gifts made by the respondent in the
marriage as Stridhan.
According to the respondent, all the ornaments were taken
away by her while leaving the house.  As against this, the
appellant in her examination in chief has deposed that when she
left the house the respondent and his relatives removed her all
ornaments and refused to return them. This all happened when
she last left the matrimonial home in June, 1996. Since then till
the complaint under section 498A was filed by her in October,
1997 and/or  till she filed the written statement in the present
case on 23.6.1998 she did not complain to the police about the
alleged removal of her ornaments.  The appellant, who  had
approached police on several occasions, would  have definitely
approached the police either immediately or atleast within a 27
reasonable time and lodged complaint against the respondent
and his family members for snatching her all ornaments. It has
come in evidence  that when she left the house, she left it with
her father who was accompanied by his four friends, still no
complaint regarding the alleged removal of ornaments was
made and she kept quite for almost one and half year.
Moreover, though the appellant has deposed  that her ornaments
were removed by the respondent and his family members, the
father of the appellant who was also present with the appellant
at that time, has not stated in his deposition about the alleged
removal of ornaments. The appellant could have examined an
independent witness, viz   one of the friends of her father who
was present at the relevant time.  In our opinion, the appellant
has miserably failed to prove that she was not allowed to take
away her Stridhan while leaving the house and it is still with the
respondent and his family members.  Learned counsel for the
appellant took us through the relevant portion of the evidence in
support of the appellant’s claim regarding Stridhan. However,
we are satisfied that there is no  evidence on record to hold that
the appellant’s stridhan was retained by the respondent when
she left the matrimonial home last.
23. Insofar as maintenance is concerned, the respondent has 28
deposed that their joint family is having a shop of gold jewelery
and he was  partner in the jewelery business of the family. He
has also stated that he was having 55% share in the said
business but the said shop was closed in 1998 and since then he
has been doing repairing work of jewelery from his residence.
His income before the shop was closed was Rs.30,000/- per
annum and thereafter he started earning 3000-4000 rupees per
month by  doing repairing work of jewelery.  He has stated that
he is not in a position to pay the maintenance, as prayed by the
appellant. In the cross-examination, he has admitted that there
was  raid  on their shop in December,1996 and  that the case
filed by the Income Tax department is  pending in the Esplanade
Court. He has also admitted that he was called upon to pay
Rs.seventy five lacs by way of income-tax, which he could not
pay and the case is still pending. He has further stated that
because of the raid, he had to close his shop.  The raid was
against him and his partner Dinesh Singhvi. He has  admitted in
the cross that in the raid 4.1/2kgs gold was found in the shop
and the gold is now in the custody of the Income-tax
department. He has further explained that he had taken  gold
from 10-12 persons from the market and that he gave names of
those persons to the Income tax department. 
Further in the cross-examination, he has admitted that the 29
shop by name Nakoda jewellers is standing in his name. This is
the same shop which, he was required to close in 1998. He has
further admitted that the second shop, by name Sakaria
Jewellers, is of his brothers Ramesh and Puranmal.  There is yet
another shop Amirchand Beharaji, which, according to the
appellant,  is  of his father. He has further admitted that  his
brother Puranmal has started a new shop, by name Rajendra
Jewellers and Mart at Kalbadevi. It is thus clear that except the
shop by name Nakoda Jewellers  there is no other shop standing
in the name of the respondent.  The respondent was also asked
about other properties standing in the name of different
members in the family and their income also. However, that
information, in our opinion, would not help the appellant in any
manner for seeking enhancement of maintenance from the
respondent.
The appellant, in her deposition, has stated that initially by
the judgment and order dated 15.3.1999 the respondent was
directed to pay Rs.1500/- pm to herself and Rs.1200/- to her son
Aniket. On 20.5.2003, she filed an application for enhancement
of  maintenance pending the hearing and final disposal of the
petition and sought maintenance of Rs.15000/- each for herself
and her son.  Over and above this, the appellant has not stated 30
anything further in her affidavit of evidence on the issue of
maintenance.  She has not produced any evidence in support of
her claim of maintenance of Rs.15,000/- each for herself and her
son.  In the cross-examination, she denied the case put to her
that the enhanced maintenance claimed by her, is exorbitant and
that the respondent has no capacity to pay the same. Over and
above this, there is no evidence on record about the income of
the respondent.  It is thus clear that the income of the
respondent as per the evidence on record is certainly not
sufficient enough to  enhance the maintenance, as prayed by the
appellant.  The evidence shows that after the raid in 1998 the
respondent stopped filing Income Tax returns.  The appellant
has not stated about any other source of income of the
respondent.  Mr Walawalkar, learned counsel for the respondent,
however, submitted that the appellant is prepared to pay little
more than what has been awarded by the Family Court and he
left that to the court.  Keeping that in view and having
considered the background of the family from which the
respondent comes from and looking to their family business so
also his income in 1994, as stated by him, in his examination-in-
chief, we deem it appropriate to direct the respondent to pay Rs.
5000/- each to the appellant and her son Aniket from the date of
this order.  This shall not preclude the appellant, if so advised, 31
from seeking enhancement of the maintenance amount in
accordance with law.
24. In the result, the appeal is partly allowed. The decree of
divorce on the ground of cruelty is confirmed. The appellant’s
claim of stridhan is  rejected. The respondent shall pay Rs.5000/-
each to the appellant and her son Aniket from the date of this
order.
There shall be no  order as to costs.  Decree be drawn
accordingly.
At this stage,  learned counsel for the appellant-wife prays
for stay of the judgment for a period of eight weeks from today.
Learned counsel for the respondent-husband has not opposed the
prayer. Instead of granting a stay, as prayed, we are inclined to
injunct the respondent-husband from remarrying for a period of
eight weeks from today. Order accordingly.
(R.Y.GANOO,J.)           (D.B.BHOSALE,J.)