Bombay High Court: The Division Bench of A.S. Chandurkar and N.B. Surawanshi, JJ., upheld the decision of the family court.
Present appeal was filed under Section 19 of the Family Courts Acts, 1984 by the appellant-husband, in view of his petition being dismissed by the Family Court for judicial separation and in the alternative for a decree of divorce on cruelty and desertion ground.
According to the husband, he was Mangalik as per his horoscope and hence was in search of a girl who was having a Mangalik horoscope. As per the girl’s biodata, she was depicted as Mangalik.
After her marriage with the appellant she started living in the joint family of her husband where she usually used to stay aloof. Further, it has been stated that she avoided giving her educational certificates on the pretext that they were lost.
On receiving her educational certificates from her father, the husband was shocked to know her actual date of birth therefore she was Non-Mangalik. She had even failed BA-II.
The wife left the matrimonial house at midnight without informing anyone and during the search, she was found with her brother and brother in law who were taking her to her maternal home.
The husband along with his family members went to bring the wife back, but her parents refused to send her and also threatened to involve them in a false case. According to the husband, the wife lodged false complaint on that day.
Husband alleged that the wife caused mental and physical harassment to the husband. He, therefore, contended that the wife deserted him on account of false complaint lodged by the wife and the husband from time to time.
Due to the continuous torture by the wife, the life of the husband had become miserable. He was not in a position to concentrate on his work due to continuous harassment by the wife. The husband, therefore, lost all the hopes that the smooth relations between him and wife were possible. Hence, he filed the petition seeking divorce on the ground of cruelty and desertion.
Wife while declining all the above allegations claimed that she was ready to cohabit with the husband and hence prayed for the dismissal of the petition filed by the husband.
Family Court dismissed the petition of the husband, hence the husband preferred the present appeal.
Analysis, Law and Decision
Points for determination:
- Whether the appellant is entitled for decree of divorce?
- Whether the learned Family Court dismissing the petition of husband is legally correct?
Bench noted in the cross-examination of the appellant that he admitted that prior to his marriage there were negotiations as well as internal talks and his sister had inquired about the education of the respondent as well as her family background. The appellant also admitted that he married the respondent as he liked her. He also stated that he did not take decision in his life on the basis of horoscope. The marriage was performed after verifying the background, houses and all the details of both the families. His father in his evidence admitted that the horoscopes of the appellant and the respondent were not tallied. Further, he deposed that he did not have any document to show that the appellant was a Mangalik. He even admitted that at the time of marriage the age of the appellant was beyond marriageable age.
Hence, all these admissions belie the case of the appellant that there was cheating on the part of the respondent and her parents at the time of settlement of marriage.
In view of the above, Bench observed that there was no fraud played by the wife or her family.
Appellant failed to make out a case of fraud and even if it is assumed that there was misrepresentation in respect of the date of birth, it does not affect the matrimonial relations between the appellant and the respondent, as the appellant failed to prove that he was Mangalik and he intended to marry the girl having Mangalik Yog.
Father of appellant, admitted that for initial two years of the marriage, there was no dispute between the appellant and the respondent in respect of age difference as well as the respondent being non-mangalik. According to the respondent, the ill-treatment started only after the appellant got government job.
Therefore, evidence laid by the respondent did not spell out cruelty caused by the respondent to him.
With regard to Desertion, Court noted that as per the evidence led by the respondent she was beaten and her sister and her husband saw the marks of beating on her person. After they left, she was again beaten and threatened with life. Apprehending danger to her life, she had to take shelter in the house of neighbour Shri Gordey. From there, she called her parents and her brother, sister Kiran, her husband and others took her from the house of Shri Gordey to her parent’s house
Further, there was no material that depicted that the appellant tried to bring the respondent back for cohabitation.
“…since the appellant attributed cheating and fraud to the respondent and her parents, it is not possible to believe that he tried to bring the respondent back for cohabitation.”
Therefore, family court rightly appreciated the evidence on record and appellant failed to prove cruelty and desertion on the part of respondent-wife.
In view of the above discussion. The appeal against the family court’s decision was dismissed. [Kartik Narayan Dhawle v. Vaishali Kartik Dhawle, 2021 SCC OnLine Bom 241, decided on 23-02-2021]
Advocates who appeared before the Court:
B.R. Hindustani, Advocate holding for A.N. Ansari, Advocate for the appellant,
S.N. Thengari, Advocate for the respondent.