ash 1 fca-106.

05
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY 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: 10TH JUNE 2014
JUDGMENT ( PER A.S. OKA, J )
. By this Appeal, the Appellant husband has taken an
exception to the Judgment and Decree dated 31
st
July 2004 passed by
the learned Judge of the Family Court, Pune on a Petition for divorce
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filed by him. We must note here that before the Appeal was heard on
merits, we had suggested to the parties that this was a fit case for
amicable 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 13
th
February 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 12
th
March 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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marriage, the Respondent wife responded that there was nothing
serious 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
13
th
June 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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alleged that in August 2001, the Respondent lodged false police
complaints against the Appellant and his family members. It is alleged
that 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 29
th
January 2002 to the Appellant which was replied by the
Appellant on 9
th
June 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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7. Before we deal with the submissions on merits, it will be
necessary to make a reference to the cross-examination of the Appellant
made 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 on
following 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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urged that the allegations constitute the acts of cruelty. He invited our
attention to the evidence of the Appellant, the Respondent and other
witnesses 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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11. We have already quoted what the Appellant stated in
Paragraph 25 of his cross-examination made by the Advocate for the
Respondent. 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 breast
operation before marriage. I had enquired before
marriage with respondent about any major operation.
She did not inform me about any operation. It is true
that it is not pleaded nor deposed by me that
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respondent did not inform me about her operation
done before marriage, even though I asked. Shown
Exh.46, there is no column of medical treatment so far
as particulars of bride and bridegrooms are concerned.
Even in Exh.47 there is no such column. Even in
Exh.48 there is no column of medical particulars. It is
true that I met respondent prior to marriage at her
friend Shubhangi Khasnis's house. We talked for 2
hours. I enquired with respondent about any of her
operation. I cannot give any reason why this is not
pleaded 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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Respondent has been rightly discarded by the learned Judge of the
Family 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 with
me before 10/5/01 I know that Section 12 H.M.Act
deals with nullity of marriage. It is stated in my
affidavit that my with respondent has become a dead-
marriage according to me it means that relations
between me and the respondent are nominal. My
sister advised my father that paper can be produced
u/s 12 of Hindu Marriage Act if husband and wife
resides together. I had document to demand divorce
of nullity of marriage. It is not true that I had decided
to take divorce from respondent before 2001.
15. The said admission shows that even before 10
th
May 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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10. ..It is true that respondent and her family
members told us that she has no physical defect.
Petitioner went for honeymoon on 13/14
th
March,
2000. They returned on 19/20
th
March, 2000. It is
true that petitioner did not ask respondent about he
operation before me. I did not take respondent to any
Doctor for check up. I had advised petitioner on
phone the name of Dr. Uttam Khare for taking
respondent. I did not go to Dr. Khare with
respondent. It is true that petitioner had respondent's
medical papers. I did not feel it necessary that her
papers be shown to Doctor. I had seen the papers. I
had not seen medical papers of respondent before
writing Exh.49. I wanted certificate from Dr. Khare as
stated in Exh.49 for getting divorce for my son. I
have no certificate from any Doctor that respondent
can have the same disease again. Respondent had
given all her medical papers to petitioner.
Respondent had given papers to petitioner before
October 2000. I did not try to take opinion of any
Doctor before October 2000. My Advocate advised me
that for taking divorce on medical ground petition is to
be fled within one year of the marriage. I have no
medical document that respondent was medically
unfit. My advocate advise that papers shown to him
were sufficient for obtaining divorce. We took 22
months to file present petition after October 2000 to
convince respondent to take divorce by mutual
consent. First meeting was at Jaisingpur in October
2000.
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 for
economic, physical and mental reasons. Due to
respondent's operation of breast, I was not satisfied
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with physical relations. Respondent's weight was 84
Kgs. I was not attracted by her physic. Due to over
weight respondent had black skin near sex organ and
signs of injury. I was shocked to see the physical
condition of respondent and could not perform sexual
relations with her voluntarily. I could not get
mentally involved with respondent as she quarreled
with petty reasons. Respondent did not allow me to
make enquiry for cheaper tour for Bangalore, Ooty
and compelled me to book Mahavir Tours & Travels.
20. After returning from Honeymoon, I did not take
respondent for physical examination to doctor. I did
not measure weight of the respondent on the weighing
machine. Mahavir Tours is of Jain People. I have no
documentary evidence for physical, mental and
financial cruelty of respondent.
(Underline added )
17. Thus, he has admitted that the marriage was
consummated. The grievance of the Appellant appears to be about the
excessive weight of the Respondent. In Paragraph 21 of the cross-
examination, the Appellant admitted that he continued to cohabit with
the Respondent and the said cohabitation was voluntary. He admitted
that the Respondent had taken initiative for maintaining physical
relations. In Paragraph 21, the Appellant has stated in the cross-
examination that :
21. Respondent initiated for physical relations. I
also demanded sex from respondent. Statements in
para 3 Exh.33 from the portion Respondent denied
me physical satisfaction........ and was not interested in
having a child as correct. Doctor examined
respondent but did not write down her observations. I
did not demand certificate from Doctor for
respondent's problem. I am not examining Dr. Nalini
Patil. I have no documentary evidence to prove above
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statements of my petition. It is not true that I
deposed falsely that respondent denied me physical
relations, that she was not interested in having a
child.
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 21
st
August 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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20. As indicated in earlier paragraph, the Appellant came out
with 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 )
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