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    tash 1 fca-106.05IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONFAMILY COURT APPEAL NO.106 OF 2005

    Milind Anant Palse, )Age 37 years, Occu. Service, )Residing at C/o. Bholenath Ningmire, )Shivanand Mangal Kentea, )

    257 Shukrawar Peth, Pune 411 002. ).. Appellant

    Versus

    Mrs. Yojana Milind Palse, )Age 32 years, Occ Service, )

    Residing at C/o. Smt. Sandhya Jadhav, )Chandramrunal Bungalow, First Floor, )C-34, Shahu Society, Pune Satara Rd., )Pune 411 037. ).. Respondent

    Shri G.M. Savagave for the Appellant.Ms. Apeksha Vora, appointed Advocate for the Respondent.

    --

    CORAM : A.S. OKA & M.S. SONAK, JJ

    DATE ON WHICH SUBMISSIONS WERE HEARD : 13TH FEBRUARY 2014

    DATE ON WHICH JUDGMENT IS PRONOUNCED: 10THJUNE 2014

    JUDGMENT ( PER A.S. OKA, J )

    . By this Appeal, the Appellant husband has taken an

    exception to the Judgment and Decree dated 31 stJuly 2004 passed by

    the learned Judge of the Family Court, Pune on a Petition for divorce

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    tash 2 fca-106.05filed by him. We must note here that before the Appeal was heard onmerits, we had suggested to the parties that this was a fit case foramicable settlement as the Appellant husband and the Respondent wife

    have been residing separately for a considerably long time. The parties

    exchanged various offers but could not come to terms. Though we

    heard the Appeal on 13thFebruary 2014, we had informed the parties

    that the judgment will not be pronounced till Summer Vacation with a

    view to give one more opportunity to the parties to amicably settle the

    dispute. However, as the parties could not come to terms, we are

    proceeding to pronounce the judgment.

    2. Brief reference to the averments made in the pleadings will

    be necessary. The parties married according to the Hindu Vedic Rites

    on 12thMarch 2000. In the Petition for divorce filed by the Appellant

    husband, it is stated that the Respondent wife had registered her name

    with a marriage bureau of the Digambar Jain Saitwal Seva Mandal at

    Solapur. It is alleged in the Petition that in February 1997, the

    Respondent had undergone a surgery of Hypertrophic Breasts in

    Mumbai but the said information was not disclosed by her while

    registering her information with the marriage bureau of Jain Saitwal

    Seva Mandal. It is alleged that the said material information was

    suppressed by the Respondent wife before solemnization of the

    marriage and on being questioned by the Appellant husband after the

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    tash 3 fca-106.05marriage, the Respondent wife responded that there was nothingserious about the said surgery.3. In the Petition filed by the Appellant, it is alleged that after

    the marriage, the Respondent started putting on weight. It is alleged

    that though the Appellant tried to persuade the Respondent to take

    medical treatment, she declined to cooperate. It is alleged that due to

    the fact that the Respondent was overweight and due to ailment

    suffered by her, the Appellant could not enjoy the pleasures of the

    matrimonial life. It is alleged that the Respondent always declined to

    do household work and the Appellant was required to do the said work.

    It is alleged that the Respondent never fulfilled the expectations of the

    Appellant. It is alleged in the Petition that the Respondent wife never

    performed her duties as a wife. Reliance is placed on the incident of

    13thJune 2000 about the ill-treatment given by the Respondent to the

    Appellant's brother. The instances of alleged misbehaviour of the

    Respondent with the Appellant at the public place have been

    incorporated in the Petition filed by the Appellant.

    4. It is alleged by the Appellant husband that the Respondent

    was short-tempered and she never loved him. It is alleged that the

    Respondent used to insult the Appellant. It is alleged that on some

    occasion, out of anger, the Respondent caused injuries to herself. It is

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    tash 4 fca-106.05alleged that in August 2001, the Respondent lodged false policecomplaints against the Appellant and his family members. It is allegedthat the Respondent threatened to commit suicide with a view to see

    that the Appellant is arrested.

    5. It is pointed out that the Respondent served a legal notice

    dated 29th January 2002 to the Appellant which was replied by the

    Appellant on 9thJune 2002. A decree of divorce was claimed by the

    Appellant husband on the ground of cruelty under Clause (i-a) of Sub-

    section (1) of Section 13 of the Hindu Marriage Act, 1955 ( for short

    the said Act).

    6. A Written Statement was filed by the Respondent wife

    dealing with the allegations made in the Petition. Material allegations

    made in the Petition were denied by the Respondent. In the Written

    Statement, it was contended that in the prescribed form provided by the

    marriage bureau, there was no column for disclosing the information

    regarding surgery underwent by her. It is alleged that the information

    regarding the surgery was disclosed by her family members to the

    Appellant and his family members before the solemnization of

    marriage.

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    tash 5 fca-106.057. Before we deal with the submissions on merits, it will benecessary to make a reference to the cross-examination of the Appellantmade by the Advocate for the Respondent and in particular Paragraph

    25 thereof. In Paragraph 25, the Appellant has specified the grounds

    on which he is seeking divorce. Paragraph 25 of the cross-examination

    of the Appellant reads thus:

    25. I am demanding divorce from respondent onfollowing grounds:-

    (i) Operation for her breast;

    (ii) No healthy sexual relations were established;

    (iii) Respondent betrayed me about her operation;

    (iv) Respondent is adamant;

    (v) Respondent is quarrelsome;

    (vi) Argued with me for long time on petty reasons.

    8. As the Appellant himself has crystallized the grounds on

    which he has sought divorce, the submissions of the learned counsel

    appearing for the parties will have to be considered on the basis of the

    said grounds set out by the Appellant himself.

    9. The learned counsel appearing for the Appellant submitted

    that the allegations made in the Petition were substantiated by the

    Appellant by adducing evidence. He urged that the allegations made

    by the Appellant do not constitute mere wear and tear of marriage. He

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    tash 6 fca-106.05urged that the allegations constitute the acts of cruelty. He invited ourattention to the evidence of the Appellant, the Respondent and otherwitnesses and urged that it is virtually an admitted position that the

    Respondent suppressed the surgery underwent by her before

    solemnization of the marriage. He urged that the instances of

    behaviour reproduced by the Appellant in his pleadings and the

    evidence constitute the mental cruelty. Lastly the learned counsel urged

    that this is a case of irretrievable break down of the marriage. He

    submitted that this fact will have to be borne in mind by the Court

    while dealing with the prayers made by the Appellant. Learned counsel

    appearing for the Respondent supported the impugned judgment and

    decree.

    10. We have carefully considered the submissions. We have

    perused the pleadings and the oral as well as documentary evidence on

    record. The Appellant examined himself by filing his affidavit in lieu

    of the examination-in-chief. He examined his father Shri Anant Ganesh

    Palse, his sister Smt. Madhavi Dhanpal Unkalkhope and his friends Shri

    Kumar Mohan Kulkarni and Shri Pravin Hanumant Pawar as witnesses.

    The Respondent examined herself and did not examine any other

    witness.

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    tash 7 fca-106.0511. We have already quoted what the Appellant stated inParagraph 25 of his cross-examination made by the Advocate for theRespondent. The main ground urged is as regards the suppression of

    the breast surgery underwent by the Respondent. The second ground

    set out by the Appellant in Paragraph 25 has some co-relation with the

    first ground. It is alleged that as a result of ailment suffered by the

    Respondent, after the marriage, she went on putting weight and that is

    the reason why the Appellant was deprived of the pleasures of the

    matrimonial life. The third ground set out in the Paragraph 25 of his

    deposition by the Appellant again relates to the surgery underwent by

    the Respondent.

    12. As regards the alleged suppression by the Respondent of

    the surgery, the material averments are in Paragraph 2 of the Petition.

    The allegation is that the information about the surgery was not

    disclosed by the Respondent to the Appellant prior to the solemnization

    of the marriage and the said information was not furnished to the

    marriage bureau of Jain Saitwal Seva Mandal. It will be necessary to

    make a reference to Paragraph 26 of the cross-examination of the

    Appellant which reads thus:

    26. Respondent did not inform me about her breastoperation before marriage. I had enquired before

    marriage with respondent about any major operation.She did not inform me about any operation. It is truethat it is not pleaded nor deposed by me that

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    tash 8 fca-106.05respondent did not inform me about her operationdone before marriage, even though I asked. ShownExh.46, there is no column of medical treatment so faras particulars of bride and bridegrooms are concerned.Even in Exh.47 there is no such column. Even inExh.48 there is no column of medical particulars. It is

    true that I met respondent prior to marriage at herfriend Shubhangi Khasnis's house. We talked for 2 hours. I enquired with respondent about any of heroperation. I cannot give any reason why this is notpleaded nor deposed by me.

    13. Though the Appellant did not plead in his Petition as well

    as affidavit in lieu of the examination-in-chief that before marriage, he

    had inquired with the Respondent whether she had undergone any

    major operation, it is alleged that when the Appellant asked her, the

    Respondent did not disclose the information. The said case made out is

    clearly an afterthought which has no foundation in the pleadings. A

    case was sought to be made out that the Appellant had met the

    Respondent prior to the solemnization of the marriage in the house of

    one Shubhangi Khasnis for 2 and hours. Even this case made out by

    the Respondent is a new case which has no foundation in the pleadings.

    Moreover, from the perusal of the cross-examination of the Respondent

    wife made by the Advocate for the Appellant, we find that the case

    sought to be made out in Paragraph 26 quoted above was not

    specifically put to the Respondent. The Appellant accepted that in the

    form provided by the marriage bureau, there was no column for

    disclosing surgery or medical treatment. Therefore, the case made out

    by the Appellant regarding suppression of the material fact by the

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    tash 9 fca-106.05Respondent has been rightly discarded by the learned Judge of theFamily Court, Pune.14. We must note here that the Appellant's sister Mrs. Madhavi

    Dhanpal Unkalkhope who has been examined as a witness is a

    practicing Advocate. In Paragraph 34 of the cross-examination, the

    Appellant admitted that his sister Madhavi is an Advocate. It will be

    necessary to make a reference to what is stated by the Appellant in

    Paragraph 34 of the cross-examination which reads thus:

    34. ..It is true that I had her medical papers withme before 10/5/01 I know that Section 12 H.M.Actdeals with nullity of marriage. It is stated in myaffidavit that my with respondent has become a dead-

    marriage according to me it means that relationsbetween me and the respondent are nominal. Mysister advised my father that paper can be producedu/s 12 of Hindu Marriage Act if husband and wiferesides together. I had document to demand divorce

    of nullity of marriage. It is not true that I had decidedto take divorce from respondent before 2001.

    15. The said admission shows that even before 10thMay 2001,

    the Appellant was possessing the documents in relation to the medical

    treatment undergone by the Respondent. It appears that the Appellant's

    father had already sought advise from the Appellant's sister regarding

    use of the said medical record for obtaining divorce. At this stage, it

    will be necessary to make a reference to the evidence of the Appellant's

    father. In paragraph 10 of his cross-examination, the Appellant's father

    stated thus:-

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    tash 10 fca-106.0510. ..It is true that respondent and her familymembers told us that she has no physical defect.Petitioner went for honeymoon on 13/14th March,2000. They returned on 19/20thMarch, 2000. It istrue that petitioner did not ask respondent about he

    operation before me. I did not take respondent to anyDoctor for check up. I had advised petitioner onphone the name of Dr. Uttam Khare for takingrespondent. I did not go to Dr. Khare withrespondent. It is true that petitioner had respondent's

    medical papers. I did not feel it necessary that herpapers be shown to Doctor. I had seen the papers. I

    had not seen medical papers of respondent beforewriting Exh.49. I wanted certificate from Dr. Khare asstated in Exh.49 for getting divorce for my son. Ihave no certificate from any Doctor that respondent

    can have the same disease again. Respondent hadgiven all her medical papers to petitioner.Respondent had given papers to petitioner beforeOctober 2000. I did not try to take opinion of anyDoctor before October 2000. My Advocate advised me

    that for taking divorce on medical ground petition is tobe fled within one year of the marriage. I have nomedical document that respondent was medicallyunfit. My advocate advise that papers shown to himwere sufficient for obtaining divorce. We took 22

    months to file present petition after October 2000 toconvince respondent to take divorce by mutualconsent. First meeting was at Jaisingpur in October2000.

    16. At this stage, it will be necessary to again go back to the

    cross-examination of the Appellant made by the Advocate for the

    Respondent. In Paragraphs 19 and 20, the Appellant husband has

    stated thus:

    19. We had physical relations during Honeymoon as

    per custom. I was not satisfied in Honeymoon foreconomic, physical and mental reasons. Due torespondent's operation of breast, I was not satisfied

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    tash 12 fca-106.05statements of my petition. It is not true that Ideposed falsely that respondent denied me physicalrelations, that she was not interested in having achild.18. Therefore, the second allegation that no healthy sexual

    relations could be established is not substantiated and in any case,

    considering the admissions of the Appellant which are referred to

    above, the said allegation cannot constitute an act of cruelty.

    19. As regards the allegation that the Respondent is

    quarrelsome and she argued with him for a long time on petty reasons,

    there is a word against word. For establishing the conduct on the part

    of the Respondent, the Appellant examined one Shri Kumar Mohan

    Kulkarni as a witness. He has deposed that on 21stAugust 2001, he

    had visited the Appellant's house in the afternoon. He has alleged that

    he had seen the Respondent abusing the Appellant. His allegation is

    that the Respondent pushed the Appellant from his eating place. It is

    alleged that the Respondent left the house of the Appellant and brought

    the police. The Appellant examined Shri Pravin Hanumant Pawar as a

    witness, who deposed that the Respondent abused the Appellant while

    standing outside the house and threatened him that she will put him

    and his parents behind the bar. Both the witnesses being friends of the

    Appellant are interested witnesses. Therefore, their testimony has been

    rightly kept aside.

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    tash 13 fca-106.0520. As indicated in earlier paragraph, the Appellant came outwith a new case in his deposition. He has failed to substantiate

    allegations made by him against his wife which are of very serious

    nature. Therefore, it is very difficult to believe the testimony of the

    Appellant. The allegations that the Respondent being of quarrelsome

    nature and that the Respondent is adamant constitute the normal wear

    and tear of marriage and by itself no ground for divorce.

    21. Therefore, we concur that the view taken by the learned

    Judge of the Family Court, Pune that the Appellant has not made out

    any ground to pass a decree of divorce on the ground of cruelty.

    22. Even assuming that there is an irretrievable breakdown of

    marriage, under Section 13 of the said Act, the break down of the

    marriage is no ground to grant a decree of divorce. Unless one of the

    grounds set out in Sub-section (1) of Section 13 of the said Act is

    established, a decree of divorce cannot be passed.

    23. Hence, we find that there is no merit in the Appeal and the

    same is accordingly dismissed.

    ( M.S. SONAK, J ) ( A.S. OKA, J )