IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2557 of 2008 With CIVIL APPLICATION No. 6724 of 2008 and CIVIL APPLICATION No. 936 of 2011 In FIRST APPEAL No. 2557 of 2008 For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA AND HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== ===============
======================================================= ================= SANJAY A MEHTA Versus ANAR S MEHTA ========================================== =============== Appearance :
MR PERCY KAVINA with MR MIHIR THAKORE, senior counsel with MR ANKUR Y OZA for Appellant.
MR MIHIR JOSHI with MR. DIPEN DESAI for respondent.
========================================== =============== CORAM : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA Date : 20/01/2012
C.A.V. JUDGMENT
(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. This appeal under section 19 of the Family Courts Act is at the instance of a husband in a proceeding for divorce under section 13(1) (a) of the Hindu Marriage Act (“Act”) and is directed against the judgment and decree dated 15th May 2008 passed by the learned Judge, Family Court No.4, Ahmedabad, in Family Suit No. 448 of 2005, thereby dismissing the application filed by the husband for divorce on the ground of cruelty of the wife.
2. The case made out by the husband [hereinafter referred to as the appellant] in the petition for divorce may be enumerated below rather in detail in order to appreciate the allegations of cruelty in proper perspective:
2.1 The parties were married according to the Hindu rites and rituals on November 29, 1985, and in the said wedlock a son, named Nishant, was born on September 15, 1991.
2.2 The husband belongs to Nagar caste of Hindu religion whereas the wife, to Jain religion. A love affair between the parties commencing from year 1982-83 culminated in the marriage.
2.3 Initially for a few months after the marriage, the relation between the parties was normal with some minor problems which, the husband thought, would vanish as time would pass and both of them would get adjusted in the conjugal life.
2.4 The appellant was living with his mother and one unmarried sister at the time of his marriage with the respondent and the said sister got married on 12th July 1986. Thus, shortly after marriage, there was none else in the family of the appellant except the respondent and the appellant’s mother.The appellant had four elder sisters and they are all happily married and were staying with their respective husband.
2.5. The appellant started his practice as a lawyer in the month of January 1986 and therefore, it was necessary for the husband to concentrate on his practice so as to establish himself as a successful lawyer. However, at the end of every day, the respondent was ready and loaded with complaints regarding domestic affairs and as and when the appellant would come to his house from his office, the respondent would start nagging with such complaints and grievances which were mostly against the mother of the appellant.
2.6 The appellant’s father and grandfather were lawyers practising in the city of Ahmedabad. The grandfather of the appellant expired before the appellant was born. The appellant lost his father when he was about 11 years old and at the relevant point of time, the eldest sister of the appellant was married and the remaining three sisters and the appellant were still unmarried and were students. At that point of time, it was the appellant’s mother who had single-handedly and with great efforts brought up the appellant and his three sisters who were given the best of education and high cultural values. The appellant’s mother had educational qualification of B.A. [Hons.]. The three sisters of the appellant out of four are law graduates and have obtained degree of LL.B. [Spl], and the other one possesses the degree of B.A. The mother of the appellant, after the demise of the appellant’s father, made arrangement of marriage of the three sisters of the appellant. The marriage of the appellant himself was also funded by the appellant’s mother.
2.7 In view of the above facts, the appellant always tried to impress upon the respondent that whatever the mother of the appellant was trying to tell, either to the appellant or the respondent, was only for the benefit and in the interest of both the appellant and the respondent or the family as a whole and that the respondent should take it in the right spirit and correct prospective. However, the respondent always kept on complaining about the appellant’s mother’s so-called and perceived interference in the household affairs. The appellant always tried to explain to the respondent that since the appellant had just started his career in the legal profession, both were totally dependent on the appellant’s mother and the family and the appellant’s mother was certainly required to be respected as the head of the family and the custom and family traditions were to be followed and observed and that there was no point in creating disturbances in the tranquility of the family which prevailed for the last several years.
2.8 However, despite all sincere efforts made by the appellant to make the respondent as comfortable as he could, the respondent was not at all satisfied with the endeavours of the appellant and went on picking up quarrel with the appellant as well as the appellant’s mother on trivial matters.
2.9 The prime reason for such behaviour and attitude of the respondent was that the respondent was too much attached to her parents and her own family and she had never shouldered any kind of responsibility during her lifetime. She had always grown up under the constant shelter of her father, elder brother and elder sister who is about 11 years older than her and is unmarried and had been actively participating and looking after the business of her father and her brothers for the last number of years. The said sister had been handling the accounts of different firms wherein the respondent as well as other members of her family are partners. The appellant also tried to feel her grievances but found those to be wholly irrational and bore reflection of her own unfounded prejudices. The appellant realized that the respondent had absolutely no exposure to the outside world and since she was always overprotected by her father, sisters and brother, she had never thought of or realized the practical difficulties that person might have to face in day-to-day life. According to the respondent, the life was always supposed to be a bed of roses and she had never thought of facing anything that would be inconsistent with her own will, wish or desire.
2.10 The respondent had also the fancy of showing that she was too religious and that she came from a family which possessed high religious values. In that process, the respondent always tried to show to the appellant that the values of Jainism, to which the respondent belonged, were much higher than those of Hinduism. She always picked up the issues in respect of religion and also took the general discussions too personally and that is how gradually the rift between the appellant and the respondent widened. As a matter of fact, the appellant’s family is not so ritualistic and on the contrary the appellant’s family is quite open and permissive in the matter of religion. Although the appellant is of Nagar community, his elder sister had married a Vaishnav Bania, the second sister had married in a Jain family, the third sister in a Nagar family while the 4th one had married in a Brahmin family. The aforesaid facts show that out of five children, only one had married in Nagar community and therefore it was quite obvious that the appellant’s family was quite forward and permissive in such matters. The respondent, right from the time of marriage and thereafter, was inclined to follow the customs and religious ideologies and rituals of Jain religion. She had not been eating garlic and onions even in the house of the appellant. However, that was never objected to by either the appellant or his family members. Even till the date of filing the petition, separate food was specifically cooked for the respondent without any onion and garlic in the house of the appellant. The respondent, in her over-enthusiasm of showing that she was too religious, always neglected the appellant and his family and gave priority to her father’s family and the religious rituals to be performed by them every now and then.
2.11 The respondent had frequently visited religious places like “Palitana”, “Shankheshwar”, “Mahudi” and such other places which the Jains call “Jatra” by neglecting all her duties and without considering the convenience, desire and wish of the appellant, the respondent very stubbornly and obstinately always accompanied her parents and her family members to such “Jatra” against the desire of the appellant and in dereliction of her matrimonial duties and never bothered as to whether the appellant would like to come with her or not.
2.12 The respondent always found excuses to go to her parents’ house every now and then under one pretext or the other. The respondent’s family being Jain, observe “Paryushan” every year, avoiding eating green vegetables and such other things which are forbidden according to Jain religion. This was normally observed for about eight days in a year and at that time, the respondent went to her father’s house for eight days saying that the same was very auspicious period and that she would in no circumstances compromise with that. As a result of such obstinate attitude, on a number of occasions, it so happened that the appellant could not join his friends who were going out of station on pleasure trips as the “Paryushan” normally comes every year in the month of August and September and there were a number of holidays in those months. The respondent would stay at her parents’ house depriving the appellant of her company and cohabitation and would, under pretext of her health, would extend the stay for a further period of few days beyond the said period. The appellant was absolutely tired and almost felt ashamed of saying every now and then that since the respondent was not well, she was staying at her parents’ house and it became a common joke in the appellant’s friend circle that the respondent was always having some or the other health problems and that she always had to stay at her parents’ house for treatment. On many such occasions, some of the friends of the appellant, relatives and acquaintances told the appellant sarcastically that it was his duty to consult a good Doctor and to get the respondent treated.
2.13 The respondent, though lived in the house of the appellant, often went to her father’s house absolutely against the will and wish of the appellant. However, with an intention to save the marriage, the appellant ignored such conduct with a hope that over a period of time, the respondent would overcome such over- attachment and shall then be able to get more involved with the appellant’s house and family. The hopes of the appellant were found to be wrong and there was no change in the conduct of the respondent. Whenever the appellant tried to tell the respondent something, she would start fighting with the appellant and would pick up quarrels. The respondent often threatened the appellant that she would commit suicide if he would try to tell her anything which she might not like and that she would not tolerate any such interference in her lifestyle.
2.14 On one such occasion, the respondent picked up a cup and poured some Baygon spray, added some water to it and told the maid, to go and tell the appellant that the respondent was about to commit suicide. The maid, who was about 14-15 years of age, was terribly frightened and she rushed to the appellant who was in the upstairs and told him that the respondent was about to commit suicide. The appellant immediately rushed down and saw that the respondent was holding a cup and on seeing the appellant she told that there was Baygon spray in the cup and that she was going to consume it. The appellant, without thinking for a moment, swiftly pounced upon her to ensure that the cup was thrown out of her hand. The appellant thereafter took the respondent in the room and tried to pacify her. However, the respondent was shouting at the top of her voice and threatening the appellant that she would commit suicide so that the appellant was thrown behind the bars because she had read in the newspapers that if anything of the kind happened within 7 years of the marriage, the husband and his mother were imprisoned for life time. The appellant was terribly upset at such conduct and behaviour of the respondent, and, therefore, immediately called on the father of the respondent and told him to rush down to the appellant’s place and briefly narrated what had happened. As there was none in the house to drive the car at the relevant time, the respondent’s father and mother came by rickshaw and the father of the respondent scolded her a lot and both of them explained to her that this kind of things should never happen and should never even be told or done. After tremendous efforts put in by the appellant and the parents of the respondent, the respondent was convinced and she apologized to the appellant and her parents and assured that she would never do such a thing again.
2.15 Although years passed by, the respondent could not conceive on account of some gynecological problems that she was having. During the said period, the appellant was extreme soft and caring towards the respondent and took special care to see that she did not suffer any kind of emotional or psychological setback and always told her that she should not worry and the appellant would see that all necessary treatment was given to her so that she could conceive. Accordingly, the respondent was treated by a well-known Doctor of Ahmedabad, Dr. Sanat Joshi. She underwent an operation in the year 1990 and conceived within about two months of the said operation and delivered a son on September 15, 1991 who was named Nishant, as stated earlier.
2.16 Before her delivery, as per the usual custom, she went to her parents’ house in the month of July 1991. On the birth of Nishant, the appellant and his family members were extremely happy and everyday they visited the respondent and the newborn baby at the hospital. After about four months thereafter, the appellant asked her as to whether she thought of returning to her matrimonial home as the appellant was too eager to get both of them – the respondent and his son. Nishant had always been a precious child for the appellant. At that time, the respondent stated that she was quite comfortable at her parents’ house and would like to see that the son was brought up as comfortably as possible with the help of her mother and sister. The appellant told that at his house also, the respondent and the child would be well taken care of and his mother was also quite experienced and willing to bring up the grandson. The appellant also tried to impress upon her that he was feeling too lonely and wanted both of them in the house with him. However, the respondent was quite reluctant to return and ultimately, the appellant had to talk to her parents who gradually persuaded the respondent to go back. Ultimately, the respondent came back to the appellant’s house in the month of February 1992.
2.17 After coming back to the appellant’s house, the respondent expressed that she was always feeling uncomfortable and wanted to go back to her parents’ house. Thereafter, she tried to pick up quarrels with the appellant and within one month from the date of her arrival, the respondent told the appellant that unless and until the appellant employed a full time maid for the son, the respondent would not be able to stay with the appellant and that she was not prepared to bring up the son without a maid. The appellant tried to explain to the respondent that it was too early for the appellant in his profession to afford a fulltime maid for the son as his practice was hardly for six years and had just become independent from his senior and had started his own independent practice, and would not like to ask for money from his mother. The appellant tried to persuade the respondent that he wanted to maintain his family by his own income as much as he could do and as a matter of fact, he was not in a position to contribute anything in the household expenses. The respondent, instead of appreciating the financial position of the appellant, always misunderstood him and accused him of his intention of not spending money for her and the son. However, as the appellant was not in a position to afford a fulltime maid for the child, the respondent told that she would go back to her parents’ house and would return only after either the appellant employed a fulltime maid or the son became old enough so that the respondent could manage all by herself. The respondent thus went back to her parents’ house in the month of March 1992 against the wish of the appellant.
2.18 However, with great difficulty, the appellant could persuade the respondent to return to the appellant’s house and had to talk to the parents and elder brother of the respondent on number of occasions and had to persuade them to ask the respondent to return as he was really missing the respondent and the son. Ultimately, as the first birthday of the son was approaching, the appellant with great difficulty and humiliation, persuaded the respondent and she came back just before a few days of the son’s first birthday in the month of September 1992.
2.19 Subsequently, to satisfy the desire of the respondent, the appellant took the respondent to Mount Abu in the month of December, 1992 when according to wish of the respondent, Nishant was kept at her parents’ house under the excuse that it would be too cold at Mount Abu at that time. That time, some acquaintances of the respondent viz. Maitra and Parth and his family and some of their friends, who had come from Bombay, had also joined. As a matter of fact, the said trip was planned at the insistence of the respondent as she was very keen to have a trip with all of them at Mount Abu. The appellant and the respondent returned from Mount Abu on or about 30th December 1992, as the acquaintances who had come from Mumbai wanted to return to celebrate the New Year at Mumbai. So long they were at Mount Abu, the respondent had not raised any issue but as soon as they returned, the very next day, the respondent picked up a quarrel with the appellant saying that the appellant did not properly treat the respondent at Mount Abu and that she felt that the appellant was more interested in looking after the others than the respondent. The appellant tried to convince and explain to the respondent that there was no such intention of appellant and that it was only because they were their guests that he had to look after them and had to take proper care of them. Not only that, he also tried to convince that instead of the appellant, the respondent ought to have taken care of them as they were her family friends.
But as it had always been a habit of the respondent to raise issues, pick up quarrels and blow them out of proportion and then make a mountain of a mole hill, the next day she involved her parents and sister and told them that the appellant was not taking care of her and was not behaving in a proper manner and that he had no intention to keep her happy and also that his mother too was supporting him. The things were taken to such an extent that just within a few days, i.e. in the first week of January, 1993, the respondent once again left the house of the appellant and went to her parents’ house with the son. The story once again was repeated and despite all sincere efforts of the appellant, the respondent did not come back to the appellant’s house and just refused to return.
2.20 The respondent and her family members at the relevant point of time, during the said period, went to the relatives of the appellant and narrated absolutely false and concocted stories and maligned the appellant and his family members and accused them of not allowing the respondent live a happy and comfortable life. They went to late Mr. Giriraj N. Desai, the senior Advocate of Ahmedabad who happened to be a common friend of late father of the appellant as well as that of the respondent’s father and narrated such false stories to him. He ultimately intervened and held a series of meetings with the appellant, the respondent, her parents and then Mr. Narayanbhai Patel, Senior Advocate of Ahmedabad was also involved by the appellant and both the respected Senior Advocates with their interventions, ultimately could succeed in bringing about a positive settlement and the respondent consequently returned to the appellant’s house on 20th June 1994, i.e. after a period of about one year and a half. During the said period, the appellant suffered tremendous social embarrassment and humiliation and was deprived of the opportunity to enjoy the experience of the childhood of his son, Nishant and see his beloved son growing before his eyes in his house and had to face the humiliation of being at the mercy of the respondent and her family members, whenever he wished to meet their son or take him out with him. The appellant getting sick and tired of such attitude, behaviour and approach of the respondent, ultimately expressed his desire to go for divorce, as he was convinced that the respondent had no interest in continuing the marital tie in right perspective. However, once again, on intervention of the elders and relatives and relying upon the assurances given by the respondent of her good conduct and promises of not raising any disputes or picking up quarrels, the appellant in expectation of good conduct of the respondent, had agreed to accept her back without condoning her misbehaviour, only to give her one more chance and in the interest of Nishant and for his betterment.
2.21 Thereafter, for a few months the conjugal life of the parties went on somewhat smoothly but then once again, the respondent started behaving in the same manner as before and started picking up quarrels with the appellant in small and trivial matters. On account of such behaviour and attitude of the respondent, the appellant started avoiding any kind of controversial discussions so that there might not be any scope for any misunderstanding between the appellant and the respondent. The respondent was, on the other hand, not prepared to accept such situation and was interested in raising unnecessary disputes and quarrels with the appellant. The appellant, however, with an intention to ensure that their family is not disrupted and the future of the child, i.e. minor Nishant was not jeopardized, ignored and overlooked all such misbehaviours of the respondent. The respondent took this approach of the appellant as his weakness and started humiliating and insulting the appellant in front of his friends and relatives and even in front of Nishant. The appellant always wanted to avoid any kind of heated exchanges in front of others and especially in front of Nishat, as the appellant very firmly believed that such behaviour in front of the child would certainly create a very bad impression on the tender mind of minor Nishant. The respondent took the advantage of this belief of the appellant and always shouted and talked in an insulting manner with the appellant in front of the child as well as the outsiders including the domestic staff. The respondent then started putting absolutely false allegations against the appellant of having extramarital relationship.
2.22 Thereafter, once the appellant, respondent, Nishant with the mother of the appellant had gone to Ambaji for darshan. At that time, they happened to meet one of their acquaintances, viz, Keta and her husband. They had met after very long time i.e. almost after about a decade or so. Plesantries were exchanged and they invited each other and assured each other to be in touch. Subsequent thereto, they were in touch with each other and once they decided to go out of station on holidays together. Therefore, in the year 1995, the appellant, respondent, their son, Nishant, Keta and her family, and the appellant’s friend Unmesh and his family went for holidays to Rathambhor and other places in Rajasthan. There also, the respondent used to pick up quarrels with the appellant on petty excuses and fight with the appellant in front of all. Whenever others tried to explain to her and persuade her not to pick up such quarrels and not to spoil the trip, she was never prepared to listen to anybody and all the efforts made by them were in vain. During the said trip also, she started nagging the appellant and at the same time, accusing the appellant of having soft feelings for said Keta. It became extremely embarrassing, humiliating and difficult for the appellant to enjoy the holidays, inasmuch as every minute the appellant was under a stress that the respondent might create some ugly scene and insult the appellant in front of others. At one point of time in the middle of the night, in the room, the respondent threatened the appellant that she was determined to leave Ranthambhor all alone with the son by the next morning train. It took almost more than two hours for the appellant to persuade the respondent not to do any such things which might have created an absolutely ugly scene in front of others. The respondent also threatened the appellant that she would knock the door of Keta’s room and would wake up her husband and tell him that she suspected that the appellant and Keta were having clandestine affair. Such threats always created tremendous stress and tension for the appellant inasmuch as the appellant was convinced that he was constantly under tension and apprehension that the respondent would do anything to malign him and cast a slur on his prestige and reputation. However, just for the sake of minor child Nishant, the appellant continued to bear all such tortures with a hope that someday the respondent would understand and would start behaving rationally and in a civilized manner.
2.23 At the relevant point of time, the appellant had his office at his home only in one room on the ground floor. The respondent with an intention to humiliate the appellant, would just storm into the chamber of the appellant while the appellant was in the midst of a meeting with his clients and would tell him that she would like to urgently discuss some domestic issues. The appellant would certainly feel embarrassed at that point of time and was required to get up and go inside to talk to her immediately knowing fully well that if he would not do so, she would further embarrass the appellant by speaking anything that she might like to, in front of the clients. The appellant was then required to persuade the respondent not to act in such a manner as the same created a very bad impression in the minds of clients and that adversely affected the dignity and reputation of the appellant and his family. The respondent, thereafter, started behaving in such a manner more and more, so as to embarrass and humiliate the appellant. In fact, the respondent had never any valid or genuine grievances, but she had formed the habit of creating havoc whenever anything happened against her wish. This caused tremendous mental pain, agony and anguish in the mind of the appellant and the appellant found it extremely strenuous to concentrate in his work, as it was extremely important to ensure that his professional progress was not adversely affected.
2.24 The appellant therefore had to take a decision to shift his office outside, so as to efficiently work and concentrate in his profession. The appellant was passing through a very crucial period of his professional career and therefore, had to really work hard and the respondent was not at all appreciating the situation and the importance and seriousness of the same. The appellant therefore got one office furnished in “Aditya” building and planned to shift there. While the said office was being furnished, the behaviour of the respondent continued to be the same and she kept on continuing to behave with the same acrimony making it more difficult for the appellant to live a peaceful life. She kept on nagging the appellant all the time for no reason and by that time, she had developed a nature whereby the respondent was always in search of one or the other reason to quarrel with the appellant and spoil the atmosphere and tranquility of the house. The respondent then started falsely accusing the appellant of extramarital relationships and started telling the friends and relatives of the appellant that the appellant was having extramarital relationships. The appellant had never expected that the respondent would stoop down to such a low level. These kinds of allegations levelled by the respondent against the appellant made the life of the appellant miserable and the appellant could not reconcile with his own self and felt so bad that he could not concentrate in his work and was terribly disturbed by the situation created by the respondent. The respondent all of a sudden in the last week of September, 1996 told the appellant that she was not interested in living with him and was therefore leaving him for good. Saying so, the respondent left the house of the appellant and once again proceeded to her parents’ house. The appellant at that time also tried to persuade her; however the respondent was not all interested in listening to what the appellant had to say and very obstinately and adamantly left the house of the appellant with the minor son, Nishant. At the relevant point of time, she had called her father, who, instead of even talking to the appellant, sent his elder daughter-in-law, Parulben, to pick up the respondent and the minor son, Nishant in his car. The appellant could not succeed in preventing the respondent and she once again left the house of the appellant against the will and wish of the appellant.
2.25 The appellant thereafter made numerous efforts to convince and persuade the respondent to return and tried to convince her that her doubts were baseless and it was nothing but a misunderstanding on her part and that she should take all such things out of her mind and live a peaceful life with the appellant. However, the respondent did not budge at all and all the time kept on complaining of her perceived grievances against the appellant and his family.
2.26 The more the appellant tried to persuade the respondent she became more rude and disrespectful towards the appellant and his mother and elder sisters. The respondent knew that the appellant had tremendous love and affection for his son, Nishant and therefore, the respondent all the time tried to take benefit of the situation to her advantage and always on the strength of the child behaved very rudely with the appellant and the family members. The respondent always emotionally blackmailed the appellant in the name of the son.
2.27 The respondent was time and again threatening the appellant that she would commit suicide if the appellant did not accept her demands and act according to her wish. She also threatened the appellant repeatedly that she would cause self- inflicted injuries to her person and the child and then would lodge a complaint against him and his family members so that they would land into a grave trouble and would lose their reputation in the society. On one such occasion, during the separation of the appellant and the respondent between the years 1996 and 2001, the respondent also threatened the appellant that she would jump from the top of the building known as Manhattan, situated opposite the appellant’s house just a little further down the road, along with the son, Nishant and would kill themselves and that would haunt the appellant for the rest of his life as he would always visualize the dead bodies of his wife and his son lying in a pool of blood in front of his house whenever he would start for his work every morning. This kind of threats always caused tremendous pain to the appellant, as that was the last thing that he wanted to hear from his beloved person whom he really considered near and dear. The respondent very well knew that the appellant loved his son and therefore, she always resorted to such low tactics. The respondent had time and again given such threats and thereby compelled the appellant to succumb to her demands. The appellant always ignored such behaviour of the respondent considering the same as her immaturity and with a fear that she might not convert such threats into action. The appellant every time told the respondent’s parents and her brothers and sister about such behaviour of the appellant and requested them to explain to her that she should not do all such things. At the relevant point of time, they always tried to convince the appellant that he should not worry because such type of behaviour was very common in the persons who were suffering from hypo thyroid and that she was having hypo thyroid. Though the appellant was not convinced because the problem of thyroid was not at all so acute from the reports and medical opinion, the respondent always had the things done in her way under the guise of hypo thyroid.
2.28 During the said period, the appellant had organized a small Pooja on December 12, 1996 in his new office before shifting the office to the new premises. At that time, the appellant had invited only his close family members and friends and the respondent and son, Nishant were also invited. Nishant was just about 5 years and naturally as father, the appellant was keen to have him also at the said pooja. The respondent refused to come and told the appellant that she was not interested in attending the said pooja when there was hardly anything left in their personal life. Appellant, however, tried to persuade her to attend the pooja but she was adamant and she refused to come. The appellant therefore, requested her to permit Nishant at least to attend the pooja. On having been so requested, the respondent at the relevant point of time told the appellant that she might not mind if Nishant came. The appellant felt really good when she told that Nishant would attend the pooja. However, on the pooja day she told the appellant that Nishant was not coming because he did not want to come. Appellant tried to persuade Nishant also, but he refused to come. The appellant, thinking that Nishant was just a child and he should not be pressurized much, accepted the fact that Nishant was not in a mood to come. However, the appellant was tremendously disturbed, unhappy, hurt and pained to know subsequently from Nishant that the reason for his not coming was that the respondent had told him that it was not possible for Nishant to go to the pooja as the office of the appellant was situated at the 7th floor and that as the appellant would be busy with pooja, nobody would be there to take care of Nishant and that he would get lost in the lift which was not attended by any liftman. Nishant therefore said that he was afraid of getting lost in the lift and for that reason he did not come to the pooja. The appellant was terribly shocked to know that the respondent had stooped down to such a low level of causing a fear in the tender mind of the child and thereby not permitting him to attend the pooja. The appellant naturally, desperately wanted to have his son present at the pooja because that was the first office of his own and he would naturally be having tremendous attachment for the same and would certainly want his own family to be present at such an auspicious occasion. However, on account of her personal disputes and grudges with the appellant, the respondent did not allow Nishant to attend the said pooja.
2.29 In the year 1998, the appellant and his friends had planned a trip to Himachal Pradesh with their respective families. That time also, the appellant requested the respondent to let Nishant accompany the appellant. He also told the respondent that Nishant would certainly enjoy because there were children of his friends, one of whom was of almost the same age of Nishant and both of them were quite close. Respondent initially told the appellant that she would not mind Nishant accompanying him to Himachal Pradesh. However, once again, on the previous night of the day on which they were to leave for Himachal Pradesh, the respondent called up the appellant and told that Nishant was refusing to come with the appellant and that he would not accompany him. Appellant tried to convince and persuade the respondent to let Nishant accompany him. However, the respondent very coolly told the appellant that she would not mind, but Nishant was not ready and willing to come. Appellant knew that it was not Nishant’s decision, but still tried to persuade Nishant who was under complete influence of the respondent and so he refused. After returning from Himachal Pradesh, when the appellant met Nishant and inquired as to why he refused to join the appellant, Nishant told the appellant that the respondent had told him that the place was too far and if at all Nishant wanted to meet the respondent or even to talk to her, it would not be possible for the respondent to come and there were no good telephone facilities whereby Nishant could talk to the respondent. She also told him that in case Nishant fell ill, she would not be in a position to attend to him and therefore, Nishant decided not to go. The appellant, then realized that the respondent took the advantage of Nishant’s attachment with her. Naturally, a small child when told by the mother that it would not be possible for him to see his mother or even talk to her, if at all he went so far, the child would certainly refuse to go. This incident also caused tremendous mental pain and sufferings to the appellant. However, the appellant did not want that to be an issue for increasing the disputes between the appellant and the respondent only because of the appellant’s love, affection and attachment for his son, Nishant. The appellant had to get the train ticket of Nishant cancelled in the train itself.
2.30 In the year 1999, the appellant’s mother fell down and fractured her hip bone and was required to be operated and therefore, was hospitalized in Jeevraj Mehta hospital for about 10 days. That time, there was no one to look after the appellant’s house and the appellant had to run around and had to attend the court, his office and also had to visit the hospital and above all, had to look after the household. The respondent, however, never came to the appellant’s house and instead of that, twice or thrice came to the hospital and made a show before the outsiders that she was concerned about the health of the appellant’s mother. In fact, the appellant had to depend upon the appellant’s sisters and had to request them to look after the house till the time he was in the court and had also to rely upon the servant while he was in the hospital or the office. The respondent at that time also never cared or bothered to realize the need of a female member in the house of the appellant. Even after the appellant’s mother was discharged from the hospital, she was completely confined to bed for about more than a month and had to be regularly given physiotherapy treatment for quite a long time. Since all the sisters of the appellant were married, it was not possible for them to leave their houses and stay at the appellant’s house for a long time and therefore, the appellant himself had to look after the mother single-handedly. The appellant so many times had to leave his court and had to leave his office and attend to his mother when she did not feel well and felt insecure on account of her old age. On account of the above incident, the professional work of the appellant also suffered a lot. Despite all these difficulties being faced by the appellant, the respondent did not feel the necessity of helping the appellant and supporting him as his wife. The respondent completely failed in her duties as a wife of the appellant and thereby caused mental agony, stress, torture, humiliation, embarrassment and pain to the appellant.
2.31 In the year 2000, once again the appellant’s mother, on account of osteoporosis had a fracture of femur bone and was once again confined to bed for about 2-3 months as she was not in a position to be operated according to the medical advice. This time also she was constantly required to be attended to and treated. This time also the appellant had to undergo the same difficulties and had to look after the house, the office, court work, his professional work and the domestic affairs. However, the respondent never helped the appellant and on the contrary, used to sarcastically tell the appellant that “do you realize now, how difficult is it to live without a wife?” The appellant really felt insulted, humiliated and offended on such comments made by the respondent and suffered tremendous mental agony. Despite all such behaviours of the respondent, the appellant remained silent for the sake of the child as he was really concerned about the future of his son.
2.32 In the meantime in the year 1999, the respondent lost her father who expired on July 8, 1999. The appellant received a call from the respondent’s brother at about 11 pm at night and as soon as he received the news, the appellant, considering it as his duty, rushed to the respondent’s house and was there for the whole night keeping aside all the disputes and differences between him and the respondent. Immediately after the demise of the respondent’s father, the veiled disputes and differences among the family members of the respondent started emerging and the relations between the two brothers and one sister of the respondent between each other inter se and with the respondent started worsening and the same started coming on surface. In fact, even while the late father of the respondent was alive, there were serious disputes between the eldest brother Kamlesh and his wife Parul on one hand and the respondent’s sister, Devyani, who is a spinster and the respondent, on the other hand. As a result of the same, Kamlesh and his wife along with their son, Aditya, had started living separately since long and their inter se relations were very much strained. However, their business remained joint and therefore, they had to maintain certain relations under compulsion. But immediately after the death of father of the respondent, the disputes between Kamlesh and Devyani, Kamlesh and Urvish, Parul and Devyani, and Parul and the respondent came to surface and ugly incidents had taken place in their house time and again. On a couple of occasions, even though the appellant and the respondent were living separately, the appellant was called either by the respondent or by the respondent’s mother or Parul, the wife of the eldest brother Kamlesh and was requested to intervene and see that some peace prevailed. Of course, the appellant was a bit reluctant to intervene considering his own problems with the respondent. However, just for the sake of the respondent and the minor child, Nishant, he tried to pacify all of them and tried to restore harmony in the interest of the family. On one such occasion, Parul called up the appellant at about 11.00 pm at night and asked the appellant to come to the respondent’s father’s house as she and the respondent had an altercation. When the appellant reached the place he was stunned to see an absolutely ugly scene where the family members were quarrelling and shouting at the top of their voices and Parul alleged that the respondent had tried to stab Parul with a knife and was threatening to kill her. The appellant was shocked to see such a scene and therefore, asked the respondent as to what was all that about. The respondent denied and made counter allegations against Parul. The appellant therefore thought it fit and proper not to involve himself in the allegations and counter allegations and to leave the place. He, therefore, left the place with his son who was also extremely shocked and frightened and brought the son to his house. This episode took place somewhere in the year 1998, while the father of the respondent was alive.
2.33 After the demise of the respondent’s father, the things went from bad to worse and there were serious disputes between the two brothers and the sisters among themselves. One day in the month of March, 2001, the respondent called up the appellant to tell him that she would like to talk to him. The appellant asked her to come to his house and talk. She, therefore, came to meet and told the appellant that she would like to come back as she was not at all happy at her parents’ house, as after the demise of her father and after her mother was taken ill and started forgetting things and was almost completely bedridden, the other family members’ behaviour with her was not at all good and she and Nishant were not treated warmly and that she was not in a position to stay there for long in such humiliating situation and would badly like to return to the appellant’s house. The appellant told her that since she was ventilating serious grievances against the appellant and since she was making allegations against the appellant of having extramarital affairs, the appellant was badly hurt and offended and since she had told so many outsiders, it had embarrassed him and if at all after coming back also the allegations were to continue, it would be better if the respondent never came back and that they should go for divorce. That time she, in no uncertain terms told the appellant that she had realized her mistakes and that she promised the appellant that it would never happen again and she would always live peacefully in the house and maintain the dignity of the appellant and the family and would pay due respect to all the elders in the house. She also assured the appellant of her good and cordial behaviour with him and promised that she would never think of making any such allegations of bad character upon the appellant. The respondent literally urged the appellant to accept her back in the house. The appellant, relying upon her and in the interest of the child, Nishant, agreed to give one more chance to her and to reunite with her without condoning her past misbehaviour.
2.34 The respondent, consequently, returned on or about March 31, 2001 with their son. At the relevant point of time and even when the respondent returned, the appellant was not aware of actually what was going on in the respondent’s parents’ house among the family members. It was only when immediately within a few days after the respondent returned to the appellant’s house that the appellant came to know that there were serious disputes prevailing between the two brothers of the respondent. In the second week of April 2001, one evening the respondent told the appellant that her elder brother Kamlesh had served the younger brother Urvish with a notice and therefore, Urvish would like to meet the appellant. The appellant was surprised and did not know the reason behind such a notice being served upon Urvish. On inquiry, the respondent also expressed her ignorance about the purpose of such notice. That night, the appellant and the respondent both went to the respondent’s mother’s house and they were shown the notice served by the elder brother, Kamlesh. The appellant was shocked to see that the notice was not a simple notice but the same was a notice served by the Hon’ble Court along with the plaint and application for injunction as well as the summons of the suit instituted by the respondent’s elder brother against the respondent’s younger brother, the partnership firm wherein the respondent’s younger brother, the respondent herself and the respondent’s elder sister are the partners viz. M/s. Endeavour Engineering and some other third party situated at Baroda.
Since the appellant and the respondents were staying separately since 1996, the appellant had no idea of the disputes that had cropped up among the family members of the respondent. However, the appellant was aware of the fact that there were some disputes already prevailing among the elder brother, the elder sister and the respondent and the wife of the eldest brother right from the beginning, but the appellant had not even the slightest idea that the said dispute would have reached a level where legal proceedings would have been initiated at the instance of one against the others. At the relevant point of time, the respondent, the younger brother of the respondent as well as the elder sister of the respondent requested the appellant that he should take up the matter and act as their lawyer and be with them inasmuch as they had been harassed a lot by the elder brother, Kamlesh and his wife, Parul. They also told the appellant that the elder brother, Kamlesh had put them in a precarious situation by blocking all the funds i.e. the monies deposited by the family members in the partnership firm and he had instructed the bankers not to permit the operation of the Bank account without the signature of Kamlesh and upon such instructions, the bankers had stopped the operation of the account of the partnership firm. They all represented to the appellant that as a result of such action on part of the elder brother, Kamlesh, all the family members were under tremendous financial crisis and at some point of time, it had also become difficult for them to meet with the day-to- day expenditure required for the household. The appellant was terribly upset with the whole situation as he had never expected that the members of the said family would go to that extent for causing harassment. The respondent, Urvish, Devyani and Urvish’s wife, Sonaly, narrated various incidents that took place while the appellant and the respondent were staying separately and when the respondent was not keeping relations with the appellant and his family. They also represented that their mother was operated twice, once for the bypass heart surgery and the other, for a fracture she had and during both these operations, her condition had become critical and the family was required to spend huge amount. However, even at that point of time, the elder brother Kamlesh refused to permit the withdrawal of money from the partnership firm account and also refused to pay back the amounts of deposits held in the names of different members of the family. As a result of the same, the members of the family except Kamlesh and Parul were required to sell off their shares held in their respective names and had to meet the expenditure for such treatment, hospital charges and post- hospitalization expenses of their mother. All these things can be verified from pleadings of various litigations which are still pending among the family members. On hearing such things, the appellant really felt sorry for the members of the respondent’s family and thought that it was the appellant’s duty to support them and be with them in their hour of need. The appellant therefore, agreed to represent them as a lawyer in the said suit.
2.35 In the month of April 2001, the appellant accepted the matter of the respondent’s younger brother Urvish and represented the respondent’s brother and the partnership firm where the respondent herself is one of the partners. Subsequently, a number of suits have been filed by the different members of the family of the respondent against the elder brother Kamlesh and the partnership firm for the recovery of amounts of fixed deposits to be recovered from the partnership firm from the respective members of the family. All these suits have been filed through either the appellant himself or some of his colleagues from the appellant’s office or through appellant’s friend. More than 15 litigations which include such suits, arbitration proceedings, Appeals From Order, Civil Revision Applications, etc., have been filed by the parties against each other and have been effectively handled by the appellant with the help of his friends in various courts only with an intention to help the respondent’s family. With bona fide intentions, as soon as the appellant came to know that such a suit has been instituted by the elder brother of the respondent, the appellant called him and tried to persuade him to settle the matter amicably and not to drag the matter to the court of law. He also expressed his desire to act as a mediator and help them to arrive at a settlement. However, the grievances between Kamlesh and Urvish and his sister, Devyani, were so deep-rooted that Kamlesh was not at all prepared to even try for any settlement and he repeatedly kept on telling the appellant that Urvish and Devyani had siphoned money from the partnership firm and sold off the shares of his late father fraudulently and that too without his knowledge and much after the demise of his father and that therefore, he was determined to teach them a lesson and was determined to bring all the fraudulent transactions and accounting entries carried out by Urvish and Devyani on surface. Despite such strong resistance from Kamlesh, the appellant consistently kept on trying to bring about an amicable settlement between them at every possible stage. The appellant all throughout tried to ensure that they were not driven to any kind of frivolous litigation and unnecessary expenditure and also that they did not indulge in any kind of actions which might not be befitting the tradition of their family. The appellant had not charged a single rupee by way of fees and although the appellant had been out of pocket for a huge amount of expenses for these matters, as the appellant always considered them a part of his family, he did not mind. Despite all these facts, the respondent had stooped down to the level of making allegations against the appellant that it was the appellant who had instigated the two brothers to fight and had played a negative role to ensure that there was no settlement between the two brothers. The appellant felt really shocked and humiliated by such false allegations made by the respondent and instead of appreciating what the appellant had done for the respondent’s family, the respondent maligned the appellant by making such false allegations against him. The appellant never expected the respondent and her family members to be so ungrateful.
2.36 The appellant’s house, in which he has been living, was built in the year 1960 and thereafter, on account of the house being very old required substantial repairing. Since the marriage of the appellant and immediately thereafter, on account of the disturbance of the married life of the appellant with the respondent and on account of the fact that the respondent was time and again going away to her parents’ house, the appellant could not get such repairing work done. After the respondent returned in the month of March 2001, the appellant thought that there would not be any further serious disputes between the appellant and respondent. The appellant therefore, in good faith, told the respondent that they should have the house repaired and renovated as per their wish and choice as then they certainly hoped to settle down in life. The respondent was overwhelmed and expressed the acceptance of the proposal put by the appellant. The appellant therefore contacted an architect, Mr. Nilendu Shah, and requested him to prepare designs for the renovation of their house. During the said designing as well as during the entire renovation work, the appellant made all endeavour that the respondent actively participated in the same and that the house was designed and renovated in the manner, the respondent liked. The appellant had incurred heavy debt and had taken a huge loan to meet with such expenses. The sole intention behind the same on the part of the appellant was to ensure that the respondent was happy and contended with the involvement in the house, so as to make her feel that the house belonged to her.
2.37 However, since the appellant was Nagar-Brahmin by caste, they have a thread ceremony in their community as a custom which is known as ‘Janoi/Yagnopavit’ of the male child and accordingly, since the minor son, Nishant, was aged about 10 years, the appellant proposed that he should be made to undergo that thread ceremony according to the customs and traditions of the appellant’s family and community. The respondent did agree for the same quite willingly and therefore, it was decided that the thread ceremony should take place in the month of February 2002. Accordingly, February 24, 2002 was fixed as the date for the said thread ceremony.
2.38 The appellant was constrained to shift his office out of the house in the year 1996 on account of the matrimonial disputes with the respondent. After the respondent returned from her parent’s house in the year 2001, the respondent told the appellant that since she and their son were back and since they had then decided to settle down in life, she wished that the appellant got his office shifted back in the house, so that the respondent and their son did not feel lonely and the appellant could make them feel comfortable with his presence around. The appellant thought of shifting his office back in the residential premises because the respondent also insisted a lot on the same. Accordingly, since the house was getting renovated, he thought of getting further construction work done and to have his office within the residential premises itself. Thus, as a part of the renovation, the appellant’s office was also constructed within the Bungalow of the appellant and that too was shifted on February 14, 2002 to the new premises so constructed.
2.39 The thread ceremony is considered to be a very auspicious and an important ceremony and is usually performed on a very large scale. All the friends, relatives, acquaintances etc. are invited on the occasion of such ceremony and therefore, the same is undoubtedly quite a big occasion and function in the family.
2.40 On one hand the renovation work was going on and on the other hand the preparations for the thread ceremony also started. The appellant had certainly to arrange for the funds for both, the renovation as well as the thread ceremony function, as both the things were pretty expensive. Initially the things went on quite smoothly, however as the time passed gradually, the respondent reverted to her original nature and started finding out faults with the appellant on small excuses without any genuine cause. If at all anything that the respondent did not like was either suggested or insisted on by the appellant as a part of renovation of the house, the respondent would firmly and strongly object to it and pick up quarrel in relation thereto instead of reasoning out or talking it out with the appellant. Gradually the appellant realized that the respondent had adopted such an approach only as a means of getting the things done in her way by picking up quarrels and raising disputes with the appellant, as she very well knew that the appellant was always keen to avoid any kind of conflicts and quarrels which might disturb the family tranquility and the matrimonial life of the two. Taking the advantage of this approach of the appellant, the respondent kept on picking up the quarrels with the appellant in small matters and that too in front of friends, relatives as well as the staff members of the appellant’s office. This really embarrassed the appellant all the time and caused tremendous mental pain and agony. While the appellant was hard pressed and undergoing the stress of the renovation work as well as the thread ceremony and the expenses were to be incurred and funds were to be arranged for the same, the appellant was tremendously hard pressed so far as the litigations of the respondent’s family, more particularly stated hereinabove, were concerned inasmuch as the said litigations were also in progress in full swing and were highly contested. The frequency of the quarrels picked up by the respondent with the appellant in the matter of renovation as well as the thread ceremony increased day-by-day and the respondent kept on nagging the appellant all the time. On number of occasions the appellant tried to convince the respondent that since the appellant was burdened with all such heavy expenditures, all at a time, the respondent should be helpful to the appellant by keeping a watch over the expenditure and should see to it that no unnecessary and extravagant expenditure was incurred or made by the respondent in the household affairs as well as the renovation work. Whenever the appellant tried to remind this, the respondent would wrongly take it and fight with the appellant by saying that the appellant was never prepared to honour and consider the wish, likes and dislikes of the respondent and that though the appellant was telling that the respondent was also a part of the house, the appellant never wanted to let the house renovated in the manner in which the respondent desired. The appellant felt really sad and unhappy when the respondent deliberately and intentionally accused the appellant of such approach more particularly when the appellant was already stretching himself beyond what he could really afford, just to please the respondent and to see to it that there was no further domestic problems and disturbance which might lead to matrimonial disputes between the appellant and the respondent. However, instead of appreciating this approach of the appellant, the respondent took advantage of the situation and always took the same as a weakness of the appellant and always kept on nagging the appellant and that was how she managed to get her wish and desire fulfilled. On the other hand, the appellant, only with an intention to avoid any confrontation kept on ignoring such attitude of the respondent.
2.41 The respondent had no control over her tongue and language. Gradually, the respondent started behaving in an absolutely uncivilized and insulting manner with the appellant in front of the relatives, acquaintances, friends and also the office staff of the appellant. The appellant always tried to avoid any kind of quarrels with the respondent, particularly when the minor son was present. On number of occasions the appellant told the respondent that she should ensure that they did not discuss anything unpleasant in the presence of the minor son, so as to avoid any kind of situation whereby the same caused an embarrassment to the appellant, the respondent as well as the minor son, Nishant. However, as the respondent was aware that with a view to avoiding any kind of such discussions in front of the son, the appellant would keep silence, the respondent made it a point that she raised the disputes, picked up the quarrels and shouted at the top of her voice in the presence and in front of Nishant so that the appellant would either silently listen to whatever she said or got up and went away. The respondent, day-by- day started behaving in a disrespectful manner with the appellant in presence of one and all including the servant and other domestic staff of the appellant. She would not think twice before insulting the appellant and before talking to the appellant in absolutely rude and humiliating manner. The respondent never thought about what words she was using while quarrelling with the appellant and his mother. On one such occasion, when the respondent picked up such quarrel on the question as to who should be invited in the thread ceremony and who should not be, and at that time, the respondent went to the extent of telling the appellant that “ if you are not going to accept what my desire is and if you are determined not to respect and honour my will and wish, I assure that I and my son shall commit self-immolation on the same place where you are planning to have the thread ceremony and therefore two dead bodies will be lifted from the very place where you are actually planning to have the thread ceremony”. This caused tremendous mental pain, agony, anguish and torture to the appellant and these words were unbearable for the appellant. The appellant tried to tell the respondent that in no circumstances should she use such words which would hurt the appellant and which were in no way befitting a person hailing from a cultured family. However, the respondent was in no mood to listen to what the appellant had to say and simply kept on fighting with the appellant. The appellant somehow managed to stop further conversation and had to call the respondent’s brother and sister, i.e Urvish and Devyani and both of them were apprised of what had transpired between the appellant and the respondent and requested them to explain to the respondent that certain words should never be spoken and it was really painful and humiliating to the person to whom such things are told. The brother and sister of the respondent both were absolutely shocked and they themselves felt that what the respondent had spoken and the behaviour of the respondent were absolutely objectionable and could not be tolerated. The respondent’s elder sister, Devyani, did scold the respondent in the presence of the appellant and told her that she should never utter such words and that she should always rein her tongue irrespective of what the disputes between the two were. At the relevant point of time, the respondent did realize her mistake and apologized to the appellant and said that she would certainly see to it that such behaviour was not repeated. Thereafter also, after a few days, such quarrels did take place between the appellant and respondent and during any kind of difference of opinion and discussion in relation thereto the respondent would always shout at the top of her voice and fight with the appellant. The appellant, all the time only with an intention to see that the married life was not broken down and that too for the sake of the child, tried to ignore and tolerate such behaviour of the respondent. On number of occasions, the appellant had to call the brother and sister of the respondent whenever the respondent crossed the limits of decency and civilization and both the brother and sister of the respondent on such occasions would talk out with the respondent, explain to her and convinced her that she should not behave in such manner and that she should always think of the future life of the minor child, Nishant. The respondent, at that point of time, would cool down, accept her follies, apologize and then once again immediately after a few days start quarrelling and shouting with the appellant. On innumerable occasions, such fights and quarrels had taken place between the appellant and respondent whereby the respondent had behaved in a rude, humiliating, insulting and cruel manner with the appellant.
2.42 As if this was not enough, the respondent returned to her original nature of accusing the appellant of extramarital relationships. The respondent, without realizing the far reaching effect of such accusations kept on making such false and filthy allegations against the appellant and kept on alleging that the appellant was having extramarital relations. The respondent never thought twice before making such allegations against the appellant and that too in front of their son, the appellant’s mother, the appellant’s sisters, the respondent’s brother and sister, as well as friends and acquaintances. The respondent was always having a suspicious mind and without any rhyme or reason and without any reason to so believe, the respondent used to level absolutely false and reckless allegations against the appellant at different points of time with different ladies who were known to the appellant and respondent or the families of both. The respondent had gone to the extent of making such allegations against the appellant even with the appellant’s own cousin sister, viz. Swakshi, the cousin of the respondent, one of the acquaintances, with wife of an extremely close and childhood-friend of the appellant and lastly with the respondent’s own childhood- friend.
2.43 The respondent had a tendency to malign the appellant and would always paint him as black in front of the outsiders including the relatives, friends and social as well as professional acquaintances. She would go around complaining of the appellant under one pretext or the other and whenever any person amongst such persons to whom she would so complain, would try to say anything against what she was telling, she would either brand that person as the appellant’s supporter or she would start making allegations against the said person and the same thing had happened in the case of the respondent’s cousin, viz. Rupal, who along with her husband, Urmesh, had tried to put some sense in the respondent by telling her that what she was doing was not the right thing and that if she wanted to live a happy and peaceful life, she should not raise disputes time and again and should try to live a happy and peaceful life. Not only that, she went to the extent of telling her own cousin, Rupal, that she had soft corner for the appellant and that she also accused the appellant of having objectionable relations with Rupal. The appellant in the circumstances made sure that he did not maintain close relationship with the said Mr. Urmesh and his wife Rupal, just to avoid such filthy allegations and therefore, the appellant had gradually cut off the relations with them completely.
2.44 In the year 1992, the appellant and the respondent, had gone to Mount Abu along with a few other people who were family friends of the respondent viz. Mr. Parth Shroff and his wife and children and Mr. Maitra Shroff and some of their friends. Similarly, after the respondent came back in the year 2001, the respondent once again told the appellant that the respondent would like to go to Mount Abu with another friend of the respondent viz. Ishaani, her husband, viz. Janak and their children who are living in Bombay and with whom she was quite close. Ishaani’s mother and respondent’s mother were also good friends. At the relevant point of time, on account of the heavy pressure of work, it was not convenient to the appellant. However, the respondent insisted a lot and started nagging and taunting the appellant that the appellant could find time for everything and everybody, but not for the respondent and her friends. She also started nagging the appellant that the appellant would have surely got ready to go to Mount Abu if at all any of his friends would have asked him to accompany them and it was only because they were the respondent’s friends with whom she was proposing to go, that the appellant was avoiding. The respondent made a big issue out of it. The appellant ultimately gave in and just to please the respondent and to ensure that such a small issue did not flare up and affect the tranquility in the house and affect the relations between the appellant and the respondent adversely, he agreed to take them to Mount Abu. Ultimately, the appellant, respondent, their son, Nishant, and the appellant’s another friend, Tehmtan and his wife, Ruby also accompanied them. Since the respondent’s friend Ishaani, her husband Janak and two children were going to join them direct at Mount Abu and they had planned a trip to Shreenathji direct from Bombay and they were to join the appellant and others at Mount Abu direct from Shreenathji, the appellant had also to make arrangements for said Ishaani and her family to return from Mount Abu to Ahmedabad, from where they were to board the train for Bombay. It was only on that count that the appellant had to request his friend Tehmtan to take his car to Mount Abu, though the appellant, respondent, Nishant and the appellant’s couple friend could have easily fit in and accommodated in one car of the appellant. However, only for the sake of Janak and his family, the appellant was required to take the obligation of his friend and accordingly, he requested him to take his car so that while returning from Mount Abu, Ishaani’s family could be accommodated. Despite all this extra care that the appellant took to make the respondent happy and comfortable, the respondent had no regards or feeling of gratitude for the appellant. On the contrary, being absolutely ungrateful as she always had been, the respondent, instead of enjoying the trip and the stay at Mount Abu, picked up quarrel with the appellant for absolutely insignificant and trivial reasons. Whenever the appellant went out of the town even on a holiday, he loved to wake up early in the morning, and went for long walks and enjoyed the natural beauty of the place wherever he went, whereas the respondent loved to rise late and relax and therefore, she would never accompany the appellant for such a walk or wandering. This fact was not unknown to the friends, relatives and acquaintances with whomsoever the appellant and the respondent had gone out of town for holidays. Similarly, at Mount Abu also, while they were there only for about three days, the very next day the appellant as usual, woke up early and went for a walk. When he returned from the walk, the rest of the people had woken up and were having their tea. The appellant also joined them. However, the respondent had not yet come out of the room and was busy with the morning routine. As usual, she was the last person to join the morning tea table. When she came, everyone greeted her ‘good morning’ and at that time every one was discussing about the morning walk. So, Ishaani, at that time told that she would like to go for a morning walk with appellant in the next morning. At that time, the respondent did not say a word against it and on the contrary she started saying, “yes, yes you will certainly enjoy morning tea with the appellant, but you should take care as he takes very long walk almost for an hour or so.” Ishaani, at that time said, ‘never mind, I may not go too far and might return from halfway.” Thus, everything was discussed lightly and ultimately, everyone got busy with the daily routine. The next morning, as decided, Ishaani joined the appellant for the walk. Ishaani enjoyed the walk and both the appellant and Ishaani returned after walk after about 45 minutes, while as usual others had just started their morning tea. The respondent was also unusually present there as she had woken up and already joined the tea table. However, the appellant felt that the respondent did not seem to be in a very good mood and therefore, the appellant asked whether she was alright, as she was wearing a frown on her face. At that time, the respondent did not utter a word and simply said that she was fine. However, after the breakfast, when everyone went to their respective room, the respondent once again started quarrelling with the appellant saying that “aren’t you satisfied with the number of girls you had in your life so far? Now why are you trying to be over familiar and too close to Ishaani? Why do you want to ruin her life too? You have already ruined mine and now I can see that you are after her. Not only that I can also see that Ishaani too is trying to get close to you more than necessary and let me tell you I don’t like it. I warn you that though we are here for only a couple of days more, I will not hesitate in telling Janak about what is going on between two of you.” The appellant was extremely shocked and terribly upset with this kind of approach of the respondent and the threat that the respondent meted out. The appellant was sure that the respondent could go to any extent and could be indiscreet to any extent which might embarrass every one of them and also took a mature decision not to aggravate the situation only with an intention to avoid such unpleasant and embarrassing situation. In the circumstances, the appellant simply told the respondent that there was nothing of the kind that she was suspecting and also told that both of them had gone for a walk and that was only time of about 45 minutes when they were alone and that too in the hotel premises of Bikaner Palace, Mount Abu. He also told that Ishaani had told him in presence of all including her husband and the respondent that she was to join the appellant for a walk. The respondent, at that time, told the appellant that he ought to have refused and told her that he would not like her to join him for a walk. The appellant was totally speechless inasmuch as he knew that he could never be so rude and discourteous to anybody and that it would be absolutely indecent on his part to say so, especially all of them had come together for a holiday. However, the appellant told the respondent that henceforth he would not go for a walk with her and would not even talk to her more than necessary. The appellant therefore, just to avoid such unpleasant situation, that very night informed everyone that as he wanted to relax he had decided not to go for a walk the next morning and accordingly, the appellant did not go for a walk the next morning which was the last morning of the said trip at Mount Abu. The appellant was also extremely unhappy with what happened and it pained him a lot. The appellant could see that the respondent did not trust him at all and had no faith and respect for him. He also felt that the respondent could go to any extent to malign the appellant in any situation and this really caused tremendous pain and agony within himself. However, only for the sake of the child, the appellant avoided to make an issue out of it and thought it fit and proper to forget it as one of the unpleasant episodes in life. Immediately after the appellant and respondent returned from Mount Abu, the appellant conveyed to the respondent that he was extremely unhappy with the behaviour of the respondent and the way the respondent suspected the appellant for no reason whatsoever. However, instead of accepting her fault she told the appellant that she would always like to play safe and would not take any chances. This hurt the appellant all the more inasmuch as in the said statement of the respondent, the appellant could clearly see the hidden feelings of distrust the respondent had towards the appellant, which showed that the appellant should be prepared for many such things for future also. The appellant thereafter avoided maintaining any relations with said Ishaani and her husband Janak despite the fact that the respondent time and again told the appellant that whenever the appellant went to Bombay he should meet them and keep relations with them.
2.45 Thereafter in the month of February 2002, the Janoi of the appellant’s son, Nishant, was to take place. At that point of time, the respondent told the appellant that she would like to invite her friend Rupa who lived in USA to attend the said function. The appellant was surprised inasmuch as he thought that it would be too much for her friend to come all the way from USA for Janoi. However, the appellant had no reason to object and therefore, he told the respondent to go ahead. The respondent, time and again, called up her friend and insisted that she should come to India for attending the thread ceremony. The respondent had told the appellant that the said Rupa and the respondent were studying together in the school and were very close friends. They were so close that they considered each other as real sisters and everyone in their respective circles and families knew about it. Even at the time of the respondent’s marriage, Rupa was the bridesmaid to the respondent. Not only that, at the time when the appellant and the respondent had matrimonial disputes in the past, i.e since 1988, the respondent used to call up Rupa at USA and tell her and her husband Atul, everything about the disputes and both of them had taken keen interest in the reconciliation between the appellant and the respondent.
2.46 Ultimately, the respondent’s friend Rupa and her son both arrived before a few days of the thread ceremony. At the insistence of the respondent, both of them had put up at the appellant’s house as the respondent insisted that they should stay with them as they had arrived specially for attending the thread ceremony of Nishant. Nishant was also quite comfortable and close with her son.
2.47 Immediately after the thread ceremony was over, there were communal riots in Ahmedabad, which started from early morning of February 28, 2002 pursuant to the Godhra incident and during the said period also, the respondent’s friend Rupa and her son were staying with the appellant and the respondent. However, they left after a few days. During the said stay of the respondent’s friend, the respondent time and again picked up quarrels with the appellant for one or the other reason and at that point of time also, Rupa had to intervene on a couple of occasions and to persuade the respondent that she should not give much importance to small and trivial matters in life and that she should not all the time expect that the things would happen according to her own will and wish. The respondent was extremely comfortable with her friend and she did listen to what she told her without any kind of confrontation. This certainly created a hope in the mind of the appellant as well as the brother and sister of the respondent that there was at a least person whom the respondent listened to.
2.48 Even after the said thread ceremony function was over and all the friends and relatives left, there were frequent disputes and conflicts between the appellant and the respondent and the same attitude of the respondent continued even thereafter. The appellant, time and again, kept on persuading the respondent to live a happy and comfortable life and also tried to explain the respondent that those were very crucial years for the appellant as he had to work extremely hard to build up his professional career and at the same time, the appellant had a huge liability to discharge which had been created on account of the renovation of the house. The appellant, therefore, all throughout requested the respondent not to raise any such disputes and problems in life which would compel the appellant and respondent to lose the real focus in life and that they should concentrate on upbringing of their son, Nishant and try to live a life with purpose. However, all these requests made by the appellant fell on the deaf ears of the respondent and she was never prepared to change her attitude. This caused tremendous stress, pain and agony to the appellant and he had to struggle hard to live his life and to discharge all his duties and responsibilities qua his family and his clients without any kind of support from the respondent.
2.49 Once when the respondent had lost her temper and had picked up a quarrel with the appellant and shouted at the top of her voice for a very long time, the appellant was constrained to call the respondent’s brother and sister to control the respondent. Both of them tried their level best but the respondent had adopted the same kind of obstinate and adamant approach and refused to listen to them and kept on ventilating her absolutely false and perceived grievances against the appellant. At the relevant point of time the complaints made by the respondent were that the appellant was not devoting sufficient time after the respondent and son, Nishant, and that the appellant was not taking proper care of the respondent. She told that she was convinced that the appellant was totally dissatisfied and disinterested in the respondent and always used to point out her faults. As a matter of fact, the appellant was trying to draw her attention to her eating habits and her sedentary life. He always used to bring to her notice that she should keep a watch over her eating habits as she was too much in the habit of eating sweets and fatty foods. She hardly did any exercise which was necessary for any person’s physical well being. He also tried to tell her that she should get rid of her obesity otherwise she would face miserable problems in her advanced age. As quite understandable, she never liked this and therefore, just to stop the appellant from telling her all these things, the respondent always picked up quarrels and started accusing the appellant that since he had developed likings for other ladies he was no more interested in her and that therefore, was always looking for her bad habits and faults. The respondent deliberately developed and nurtured this thought in her mind so as to find an excuse to continue with her haphazard and irregular way of life. The respondent was never prepared to accept any responsibility in life and she always wanted to live an absolutely care free and haphazard life. The only thing that the appellant expected from the respondent was that she should live a regular life and should look after her own self and her health. He also tried to point out to the respondent that this would certainly have a great impact and effect on the life of the minor son, Nishant, and if the parents are not well disciplined the son would also follow the same footsteps and would also live such undisciplined, irregular, care free and haphazard life and therefore, even for the sake of the child, the respondent should inculcate some kind of discipline in her day-to-day life. The respondent was totally lethargic in maintaining the time schedules also. Whenever, the appellant and the respondent had to go to any place at a particular time, they were always late on account of the respondent and this became a matter of common knowledge to all concerned in the friend circle, social circle as well as the professional circles and amongst the relatives. All these things were sought to be explained to the respondent even by her own family members including her elder sister, Devyani, and her younger brother, Urvish, inasmuch as both of them very fairly accepted the fact that such habits of the respondent were not at all good and were harmful, not only to the appellant and their son, but also to the respondent herself. However, whenever these hard facts were told to the respondent by her brother and sister, she instead of taking such advice in the right perspective, accused them of wrongfully supporting the appellant just because the appellant was looking after their legal matters. Thus, the respondent had no regards for anybody in the family and would blame anyone for anything. It was one such occasions that the respondent’s elder sister, Devyani, herself told the appellant that they should call up respondent’s friend, Rupa, at USA and talk to her and request her to call back and speak to the respondent and persuade her not to raise such disputes in life and to live a peaceful life. The appellant frankly told the respondent’s sister that this would not be a practical way to go about inasmuch as the moment they would call up her friend at USA she would start the whole thing again and go on complaining about her perceived grievances and would be in no way interested in listening to what Rupa had to say. The appellant also tried to point out that it was not feasible to have such long discussions and interactions between the two of them considering the fact that the respondent was in India and her friend was in USA. Ultimately, they dropped the idea of calling her up. The respondent was with great difficulty pacified by her sister and brother and this almost went on for more than about 4 hours. The appellant, on that day, also felt terribly disturbed and tired and could not attend to his office in the evening. Such things happened time and again and on account of such behaviour of the respondent, the appellant kept on suffering tremendously and could not concentrate on his professional work also. This day-by-day started adversely affecting the appellant’s professional work. The appellant had to work very hard in his profession. However, such hard work was also wrongly perceived by the respondent and the respondent started nagging the appellant by alleging that the appellant had no interest left in her i.e the respondent and that he was not bothered about their son and their family life. She accused the appellant of remaining in the office for a longer time only with an intention to avoid the respondent and her son.
2.50 The respondent was very much aware of the fact that the appellant had tremendous feeling for his son, Nishant and therefore, she poisoned Nishant’s mind by constantly hammering that his father did not love him and that he had no time for either the respondent or their son, Nishant. She also went to the extent of constantly telling him that his father was interested in maintaining relations with anybody and everybody, but not with the respondent and their son, Nishant. She would also, in front of Nishant tell the appellant that the appellant was avoiding the respondent and Nishant and that the appellant did not love Nishant. She always told the appellant in the presence of Nishant that Nishant’s Mama i.e Urvish was taking much care of Nishant than what the appellant was taking. She also used to tell the appellant that Urvish used to bring so many things for his children and Nishant, whereas the appellant hardly brought anything. She used to tell in presence of all i.e Nishant, family members and friends that the appellant only knew how to be strict with Nishant and to scold him but never knew how to love his son and how to give him warmth. As the minor child Nishant kept on hearing all such things regularly and continuously, and as those were repeated on his soft and timid mind constantly, he started developing hatred towards his own father and he also started believing and complaining that his father was not caring for him as much as his Mama was caring for him. This gradually started developing a rift between the appellant and Nishant and despite sincere efforts being made by the appellant to make Nishant happy and comfortable, he started tilting towards the respondent’s brother, sister and mother and gradually started finding excuses to stay away from the appellant and his house and insisted on going Mama’s place. The appellant was terribly hurt and upset about the same and always used to persuade the respondent not to create such a situation and to create a conducive atmosphere in the family whereby Nishant would develop a sense of attachment towards the house and the family members of the appellant and most importantly towards him. The appellant also tried to impress upon the respondent that it was extremely important for a son to have the shelter and support of a father in his life and this fact the appellant very well knew and understood because the appellant had lost his father while he was only about 11 years old and the appellant did not want his son to face similar kind of situation. However, the respondent for the reasons best known to her was least interested in considering any such things in life and was bent upon meting out mental cruelty to the appellant and poisoning Nishant against the appellant.
2.51 In the month of January 2003, the respondent’s friend, Rupa, once again had planned to come to India as she wanted to make purchases for her daughter’s 'Arangetram' which was scheduled at USA in the month of July-August, 2003. When Rupa arrived in Ahmedabad, again, she was invited by the respondent to stay with the respondent at the appellant’s house. After she arrived, the appellant called up respondent’s elder sister, Devyani, and told her that as she was suggesting to talk to Rupa and to persuade the respondent not to create disturbances in the life of the appellant and the respondent and to make attempts to settle down in life and live a happy and peaceful life with the appellant, since Rupa had arrived at Ahmedabad, a meeting should be held with her and she should be asked to speak to the respondent. The elder sister of the respondent agreed and ultimately, the appellant, the respondent’s elder sister, Devyani, and younger brother, Urvish, met the respondent’s friend Rupa at Ellisbridge Gymkhana and apprised her in detail, of all that was going and persuade her to calm down and behave in a manner which would make the life of the appellant and the respondent smooth and conducive. In good faith and out of feelings for the respondent, Rupa assured that she would certainly speak to her and that she was confident that the respondent would listen to her and that she would be in a position to persuade the respondent. All four of them had the same feelings and confidence knowing the close relations the respondent had with Rupa.
2.52 The confidence of all the four of them turned out to be a false and hollow confidence and the hopes were completely belied because the moment Rupa attempted to speak to the respondent the very next day after the meeting, the respondent immediately adopted the same approach as she adopted with all others in the past and started accusing Rupa of wrongly taking the side of the appellant. She also told her that she was completely brain-washed by the appellant as well as the brother and sister of the respondent and the respondent’s brother and sister had vested interest in maintaining relations with the appellant because the appellant was acting as their lawyer and the appellant was looking after and handling their legal matters. The respondent’s friend Rupa, at the relevant point of time, very firmly told the respondent that the facts were completely different from what the respondent was thinking and she tried to convince the respondent that whatever the grievances the respondent was ventilating, were all her perceived grievances and by nurturing such thoughts in her mind, the respondent was ruining her own life and the life of the appellant and also the minor son, Nishant. The respondent’s friend was absolutely firm and blunt about the conduct of the respondent and she was very clearly requested to be so by the appellant as well as the respondent’s brother and sister because all of them at the relevant point of time thought that only she could tell the respondent the hard realities and truth bluntly and openly. However, the respondent was not at all interested in listening even to her best friend, as she claimed her to be, and instead started accusing her of betraying her and supporting others. As her friend Rupa tried to convince and persuade her more and more the respondent kept on ventilating more and more grievance against the appellant, his family members, his friends, relatives and his acquaintances so much so that she also started abusing, criticizing and maligning the mother of the appellant and the overall Nagar community to which the appellant belongs. The respondent’s friend Rupa saw that the respondent was completely filled with venom and was spitting all venom towards the appellant. She tried to impress upon the respondent that the situation and the condition in which the appellant and the respondent were living was extremely harmful and dangerous for the future of the minor son, Nishant, as the same would leave extremely bad marks on his tender mind, which might ultimately harm him in future when he grows up.
2.53 After the aforesaid discussion, the respondent started developing ill feeling for her own best friend and started accusing her of not being supportive to her. After a few days, the respondent’s friend Rupa returned to USA. When her friend Rupa left for USA, the respondent wanted to give her and her family members, something as a remembrance. The respondent bought Punjabi suit for her friend Rupa and a shirt for her husband and a few things like books, etc for their children, which were gifted by Nishant and the same were sent along with Rupa. Both the appellant and the respondent together had gone to see off Rupa at the airport.
2.54 After reaching USA when Rupa called up the respondent to say that she had safely reached to USA, to great shock and surprise of the appellant, the respondent in the presence of the appellant told Rupa on the telephone that she should better stay away from the life of the appellant and the respondent and that she had betrayed the respondent as a friend and had stabbed her in the back. She went to the extent of telling Rupa that the respondent felt that she had developed soft corner and soft feelings for the appellant. She also made an allegation on the telephone itself that the appellant and Rupa were having some clandestine affair and that Rupa was out to ruin the respondent's life. The appellant was extremely shocked and surprised when such allegation was levelled by the respondent in relation to a person who also tried to be of some help in settling down the respondent's life. The appellant told the respondent not to malign Rupa and the appellant and not to put such false and baseless allegation against the appellant. The respondent, once again, after disconnecting the phone started shouting at the top of her voice and started accusing the appellant of having extramarital relationship. The appellant was totally taken aback and did not know how to deal with the situation inasmuch as the same was the last thing the appellant expected from the respondent. The appellant, therefore, called the respondent's brother, Urvish and spoke to him as well as the respondent's elder sister, Devyani, and told them that the respondent had come out with a new story and accused the appellant of such extramarital affairs. Both of them were also shocked and surprised and immediately they also tried to talk to the respondent and convince her that there could not be any substance in what she was alleging. However, the respondent was not at all prepared to either listen to anyone or believe anyone and just kept on saying that she had reasons to so believe. The respondent thereafter started telling other family members of the appellant that the appellant had developed extramarital relations with the respondent's closest friend and she also started threatening in front of everyone that she would see to it that the appellant paid heavily for the same. Desperate attempts were made by the appellant as well as the respondent's brother and sister and other family members of the appellant as well as the friends of the appellant and the respondent who were all told by the respondent about such alleged extramarital relations, to convince the respondent that she should remove all such doubts from her mind and concentrate on building up a happy marital relationship with the appellant. After sometime, the respondent came to know that the parents of her said friend, Rupa, had also arrived from USA. So she told the appellant that she would like to invite them for dinner at the appellant's house. The appellant never wanted to displease the respondent apprehending that if at all he said that they should not be called, the respondent would make an issue out of it and the whole thing might start all over again. In such circumstances, the appellant agreed to invite and both of them i.e. the father and mother of Rupa were invited for a dinner. The atmosphere during the said dinner was cordial and nothing unpleasant happened. However, after a few days when parents of Rupa were to return to USA, the respondent told the appellant that she was going to meet them and she intended to present another Punjabi to Rupa which she had brought for her and which also she wanted to hand over to her parents. The day on which the respondent went to meet Rupa's parents was a working day and therefore, it was not convenient to the appellant to accompany her. The appellant, therefore, simply spoke to Rupa's parents and wished them a safe journey. It was only thereafter that the appellant received a phone call from Rupa's husband, Atul, from USA who told the appellant that the respondent had telephoned at USA and told him that the appellant and Rupa were having some extramarital relationship. The appellant was shocked to know that. However, Rupa's husband, Atul, told him that he was not prepared to believe anything of the sort and that he had all confidence in his wife. He also told the appellant that the respondent had personally gone to meet one of the Atul's friends living in Ahmedabad viz. Paresh and told Paresh and his wife about her apprehension. Atul told the appellant that he understood that this was nothing but one of the usual tactics of the respondent to malign the appellant and the people around and told the appellant to be careful and ensure that she in future should not behave in such an irresponsible manner, because such kind of indiscreet, immature and irresponsible behaviour of the respondent was doing harm to the reputation of not only the appellant but also the others. Atul very firmly told the appellant that the appellant should ensure that the respondent behaved in a civilized manner and did not indulge into such kind of mud-slinging and maligning activities which is in fact, causing tremendous damage and injury to the reputation and prestige of the people who are least concerned with the personal life of the appellant and the respondent. The appellant was terribly upset, ashamed and embarrassed on account of such disgusting, uncivilized, shameful and irresponsible behaviour of the respondent. Atul also asked for the respondent in the same telephone and expressed his desire to speak to the respondent straightaway. However, the respondent refused to speak to Atul and asked the appellant to convey that she was not interested in maintaining relations with any of them. The appellant told the respondent that he could not just avoid talking to Atul in that manner and that she was certainly answerable to him as to why she had defamed and maligned Rupa, his wife. The appellant said that if at all she believed what she was alleging, nothing prevented her from speaking to Atul and told him very thing about what she knew about such so-called extramarital affairs. However, the respondent flatly refused to talk to Atul and thereby avoided speaking to them. Thereafter for quite a few days the respondent continued to fight with the appellant on one pretext or the other by raising disputes on flimsy grounds and the same situation prevailed all throughout. With an intention to malign the appellant, the respondent started telling all the friends of the appellant that the appellant was having extramarital relations with the respondent's closest friend.
2.55 Subsequently, the appellant once against received a phone call from Atul, the husband of Rupa, whereby the appellant was informed by him that the respondent had told many things against the appellant and the alleged extramarital relations between the appellant and Rupa, to the father and mother of Rupa, when she had last gone to meet them at the time they were leaving for USA. Atul told the appellant that the respondent had gone to the extent of telling the father and mother of Rupa that the appellant and Rupa had decided to get married and they heard with tremendous humiliation and embarrassment and spoke to Rupa and Atul about the same when they returned to USA. At that point of time also, Atul told the appellant that the appellant should take appropriate step against the respondent to prevent and stop her from causing harm to the reputation and prestige of others, apart from that of the appellant. The appellant was terribly upset and felt extremely embarrassed on account of such behaviour of the respondent, inasmuch as it was becoming difficult day-by-day for the appellant to face such social embarrassments because on one hand the appellant was unable to impose any check on the conduct of the respondent in openly and freely maligning the appellant and his family members in the society at large, on the other hand, various persons from the society used to complain of such irresponsible, irrational and indiscreet conduct and behaviour of the respondent and were pressurizing the appellant to take appropriate steps to ensure that such conduct of the respondent was forthwith controlled and checked. The appellant, therefore, talked to the respondent and asked her to tell the parents of Rupa all such things when she knew that there was no truth behind it. He also told her that this was not befitting to a person hailing from a civilized society and this would certainly cause irreparable harm to somebody else's life. He also told the respondent that the appellant was surprised at such conduct and behaviour of the respondent, inasmuch as at one hand the respondent was asking the appellant to accompany her when she was going to meet Rupa's parents and sending the gift for Rupa along with them and on the other hand, when the appellant was unable to accompany her on account of his professional engagements, in his absence, she spoke bad of the appellant and all concerned to such an extent. The respondent very bluntly told the appellant that she was determined to ruin the appellant's life and that she would go to the extent of telling everyone in the society, in the professional circles of the appellant, in the friend circles of the appellant and even to the acquaintances. She also threatened the appellant that once she told everyone, it would be the appellant's job to prove that he was innocent and that there was no truth behind what the respondent was saying. The appellant very well knew that it was practically impossible for the appellant to go from door to door and person to person and try to convince them that the respondent was telling absolutely falsehood and at the same time, the appellant could see that on account of such conduct and behaviour of the respondent, the appellant's reputation, prestige and dignity in the society, in the professional circle and amongst the friends and relatives were certainly going to be tarnished. This caused tremendous mental pain and suffering to the appellant. But such behaviour of the respondent never stopped and the respondent also told one of the sisters of the said Rupa, who also resides in USA, when she accidentally met her in a beauty parlour in Ahmedabad. This fact came to the knowledge of the appellant only when again Atul rang from USA and talked to the appellant in an extremely furious, harsh and insulting tone. Atul told the appellant that everyone was surprised as to why the appellant was not capable enough to check such irresponsible, uncivilized and rash behaviour and conduct of the respondent. Atul went to the extent of telling that if such things were to continue, Atul might have to think of initiating appropriate legal actions against the respondent. The appellant was at that point of time also terribly upset, offended, hurt and humiliated on account of such instances occurring again and again. It became extremely difficult for the appellant to live in a situation, whereby the appellant was living under a constant fear that any day, any time, any such situation may crop up, whereby the appellant shall have to face such humiliating and embarrassing situation. Whenever the appellant and the respondent went out together, the appellant was under constant fear, tension and apprehension that the respondent would vilify the appellant in front of any person whether known to the respondent and the appellant for a long time, whether being close to the appellant and the respondent or whether just a newly introduced acquaintance. This constantly caused mental stress, pain and suffering to the appellant. Whenever such things happened and whenever the appellant tried to tell the respondent not to do such things, the respondent always felt jubilant and told the appellant that she was not going to stop and this was precisely what she wanted to do. The more the appellant tried to persuade the respondent to stop such behaviour, the more the respondent continued with vengeance and vindictiveness.
2.56 During the Diwali of the year 2003, the respondent and the appellant had gone to one of the appellant's closest friend, Uday, who also happens to be a school-friend of the appellant, to wish for the New Year. Right from the beginning, the respondent was having some kind of prejudice for wife of one another friend i.e. Pulkit's wife Preya. While the appellant's friend Pulkit, his wife Preya, the appellant's other friend Uday and his wife Mrudula @ Mona and the appellant and the respondent were sitting and chatting in the drawing room, all of a sudden the respondent lost her cool and in a very insulting tone told Preya that she was simply tolerating Preya and that she was least interested in keeping any relations with her. Not only that, the respondent told Preya that she was aware of the fact that she always had a soft corner for the appellant and that their secret relationships were not unknown to her. All the persons who were there were just shocked, taken aback and were speechless for some time. The appellant, his friends Pulkit and Uday have been friends since the year 1977 and are so close to each other that all the respective family members of all the three, consider them as each others' real brothers. The respondent told Preya that they were having such relations for a very long time i.e since the period during which the respondent was not living with the appellant and both of them were separated i.e.
from 1996 to 2001. The appellant tried to stop the respondent saying that what she was taking was utterly nonsense and causing tremendous mental pain and embarrassment to all those who were sitting there. However, the respondent did not stop and on the contrary, started shouting at the top of her voice and told the appellant in an insulting manner that she knew that the appellant too had a soft corner and soft feelings for Preya. All of them therefore, decided to stop the conversation there and then to avoid any kind of further embarrassing situation and they parted immediately.
2.57 The appellant took this very incident seriously and once again spoke to the respondent's brother and her elder sister about such silly, irresponsible and uncivilized behaviour of the respondent at the appellant's friends' house and told the respondent to stop such shameful behaviour and to at least consider the fact that she was doing harm to the reputation not only of the appellant, but also of the respective families of the appellant and the respondent as well as that of the friends and acquaintances, who were least interested in the relations of the appellant and the respondent inter-se. The brother and sister of the respondent literally scolded her and asked her to apologize to the appellant as well as the appellant's friend Pulkit and his wife Preya. She agreed to tender her apologies and did apologize to the appellant and assured that she would not commit such mistake again. The appellant, at the relevant point of time told her that the appellant did not approve of such behaviour on the part of the respondent inasmuch as, on one hand the appellant was accused by the respondent of having extramarital relations with her own friend, whereas on the other hand, from nowhere she created a story and threw it to the world at large stating that the appellant was having relationship with the wife of his close friend. The appellant made it very clear to the respondent that this kind of behaviour of the respondent was extremely shameful and caused tremendous mental pain and agony to the appellant and the appellant felt terribly hurt and offended. He also tried to explain to the respondent that on account of such behaviour of the respondent, the appellant's career was adversely affected and that was not only bad for the appellant but also for the whole of the family which included the respondent and minor son, Nishant. At that point of time, the respondent was all set and prepared to listen to whatever everyone said and made a show of believing and accepting that she had committed a blunder. The respondent also agreed to tender her apologies to the appellant's friend Pulkit and his wife Preya and assured that she would invite both of them the very next day for a cup of coffee. Accordingly, she did invite both of them and said sorry on the telephone and said that they should meet and forget about what had happened the other night. On such invitation, the appellant's friend Pulkit and his wife Preya arrived at the appellant's house. Initially, the respondent did apologize to both of them. However, while the appellant was away for some time, to attend to a phone call, the respondent told both of them that as a matter of fact, all these things were not a figment of imagination on her part, but she was told by her mother-in-law i.e. the appellant's mother that while the respondent was not living with the appellant from 1996 to 2001, when she was away to her parents' house, Preya tried to be over familiar and extra homely with the appellant and the appellant's mother and thereby she was trying to secure an entry in the appellant's house. This fact was told to the appellant by his friend and his wife immediately after the appellant returned after attending the phone call. The appellant felt exasperated at such behaviour of the respondent and immediately called the mother of the appellant and asked her in presence of the appellant's friend and his wife as to whether she ever told anything of the sort to the respondent in relation to appellant's friend's wife Preya. The appellant's mother was also taken aback and she told the appellant and his friend that she was not unaware of the fact that both of them had grown up as brother since their school days and that their friendship was more than 25 years old. She also clarified that neither the appellant's friend and Pulkit were close friends nor his wife Preya had any reason to try to be over familiar or extra homely because the whole family considered them as a part of the family since the appellant and Pulkit were close friends for the last about more than 25 years. When the respondent realized that her lies were exposed, she once again lost her cool and started shouting at the top of her voice and started accusing the appellant's mother of lying in front of all. This also caused tremendous pain, mental agony, anguish and humiliation and embarrassment to the appellant. However, the appellant's friend Pulkit advised the appellant not to go further deep into the matter and simply told the appellant that they understood what all was going on and advised the appellant to keep cool and calm so that their marital relationship was not put to doldrums once again and he was kind enough to assure the appellant that he should not worry about them and they did not carry any ill feelings for any of them. The appellant, therefore, once again gulped down such humiliation and embarrassment and left the matter where it was.
2.58 Thereafter, the said Rupa, Atul and their family members and two children once again came to India in the month of July-August 2004. The said Rupa had called up the respondent before they came to India and Rupa's husband Atul had also called up and informed the appellant of their plans to come to India. The appellant was also requested to help them out in planning their trip to South India as they were coming for holidays. After the respondent came to know that Rupa and her family were coming to India, the respondent telephoned Atul, husband of Rupa at USA and told him that she was sure that the purpose of Rupa's trip to India was nothing else but to meet the appellant and she was also sure that the appellant and Rupa had decided to have a good time together in India after she arrives. She went to the extent of telling Atul that they should plan a strategy whereby both the appellant and Rupa might be caught red-handed. These facts were told to the appellant by Atul after they arrived in India. After arriving in India, Atul told the appellant that he would like to meet the respondent and would like to talk out with the respondent as to what apprehensions or suspicions she had and he also told the appellant that the said meeting might be their last meeting together because if the respondent was not interested in bringing an end to her such irresponsible conduct and behaviour, Atul and Rupa were also not interested in keeping any relations with them. The appellant agreed for such a meeting and told Atul to speak to the respondent and fix up any convenient time and assured that he would make himself available. When Atul called up the respondent and told her that he would like to meet her, she flatly refused saying that she was not interested in meeting him. Atul tried to persuade the respondent a lot even by saying that she herself had called him up at USA and told him that she would like to have a meeting with him. She told that she did call him up, but then she had changed her mind and that she was no more interested in meeting them. On much persuasion, she assured Atul that she would think over and get back to Atul within a couple of days and thereafter fix up sometime to meet. Thereafter, Atul and his family went to South India for holidays. It was during that period that the respondent called up Atul's parents, i.e. Rupa's in-laws at Anera, near Himatnagar and told them all such things and the alleged relations of the appellant and Rupa. They were extremely shocked and on Atul and Rupa's return from South India, they spoke to Atul and inquired about the matter. Atul was extremely exasperated and immediately called up the appellant at about 11.00 in the night and told him that they were coming to his house to meet them and would certainly like to sort out this issue for all times to come, because, day-by-day the respondent was telling more and more people and was causing tremendous stress and problems in the life of Atul that he would not at all mind them coming over and he also told Atul that he should speak to respondent and told her that they were coming. The appellant, thereafter, once again received a call from Atul within about 5-7 minutes thereafter as the appellant was sitting in his office and the respondent was at home and Atul told the appellant that he spoke to the respondent, but the respondent flatly refused to meet them and told Atul that she would not step out of her room even after they came to her house. Atul, therefore, asked the appellant to speak to the brother and sister of the respondent and arrange a meeting with them the very next day as Atul would like to meet them. The next morning, the appellant called up the brother and told him about Atul's desire to have a meeting with them. The respondent's brother, to great shock and surprise of the appellant, flatly told the appellant that they were not interested in meeting Atul and/or Rupa, inasmuch as they were not in a position to do anything in the matter and it would be better if the matter was thrashed out by the appellant, respondent, Atul and Rupa by sitting across. When respondent's brother was told that the respondent was not even prepared to meet Atul and Rupa, her brother point blank told that in that case, they were helpless and would not be in a position to do anything in the matter. Ultimately, the appellant had to convey the same to Atul, who spoke a lot, which certainly embarrassed, humiliated and caused tremendous mental pain and suffering to the appellant and thereafter Atul and Rupa left India.
2.59 The conduct and behaviour of the respondent is such that she has a clear intention to cause mental pain, agony and suffering to the appellant by meting out such cruel behaviour to the appellant as well as his old mother.
2.60 Even thereafter, the respondent was not satisfied and continued her irresponsible, irrational, uncivilized and objectionable behaviour. Day-by-day, the situation started going from bad to worse and the respondent started calling up the friends of the appellant and started telling them all such false stories about alleged extramarital affairs of the appellant. Whenever, there was any occasion in the family, the respondent seized such an opportunity of maligning the appellant, his mother and sisters by telling the relatives and acquaintances that the appellant was having extramarital affairs and that his sisters and mother were supporting him in carrying on such extramarital affairs. The respondent had been irresponsible and indiscreet enough to even tell all such things to the minor Nishant and has poisoned his mind and prejudiced him not only against the appellant, but also against the appellant's mother, sisters and their children saying that all of them wanted to drive the respondent and Nishant out of the house and that they were unwanted in the house. This caused such a bad impact on the soft and timid mind of young son, Nishant that he also did not have any respect for his father, i.e. the appellant.
2.61 Very recently, the respondent called up one of the appellant's cousins at Bombay and told her that the respondent was living a very miserable life inasmuch as the appellant was having extramarital relationship with other females and not only that but also that the appellant has usurped the respondent's money which she got from her partnership business running in the name and style of M/s. Endeavour Engineering. The respondent also fabricated stories and told the cousin of the appellant that the appellant, his sisters and mother had never cared to maintain relations with the cousins of the appellant and that they were also speaking badly of all other relatives. Not only that, the respondent also told her that the appellant's sister always interfered with the domestic affairs and that they never let the respondent manage the house the way she wanted. Fortunately, the cousin of the appellant knew the respondent quite well and therefore, immediately, on or about January 9, 2005 when the appellant had gone to Mumbai, the appellant's cousin and her husband spoke to the appellant and informed the appellant that the respondent had called them up from Ahmedabad and spoken about all such things. However, they assured the appellant that they never believed even a word of it, more because the respondent had done same thing in the past also, but knowing fully well that it was all false and rubbish, they never told the appellant as they did not want the appellant to feel offended and embarrassed. They also told the appellant that the very fact that the respondent was in the habit of raising disputes with the appellant and the family members and go away to her parents' house time and again, and again and again came back to the appellant's house, was itself evident to show that there was no truth and conviction in the allegations that she was in the habit of levelling against the appellant.
2.62 The appellant is also an active member of Rotary Club of Ahmedabad and has to regularly attend to the meetings of the said Club. There are number of programs organized by the said club where the members are invited with their spouse. The appellant always used to take the respondent along with him to such programs thinking that she would enjoy meeting people and the programs also. However, slowly the appellant came to know that the respondent had all throughout only one-point-agenda and that was to malign and criticize the appellant. During such meetings and programs of the club, the respondent always used to speak ill of the appellant and his family and in particular, his mother and sisters in front of the respective wives of the various members of the said club. This certainly caused tremendous mental pain and agony to the appellant because all these member friends of the appellant used to tell to the appellant later on that the appellant's wife had been doing so and this did not befit a person hailing from a civilized and cultured family. The appellant, time and again told the respondent to refrain from indulging into such activity. However, whenever the appellant tried to persuade her not to do such things, she would pick up a quarrel and start fighting with the appellant and threaten the appellant that she would also do whatever she intended to do.
2.63 In spite of all these baseless allegations and accusations time and again being hurled at the appellant by the respondent, with a view to bring about peace and harmony in the strained matrimonial life of the appellant and the respondent, the elder sisters of the appellant, Alka and Atula, called the respondent at the eldest sister's residence along with the respondent's sister, Devyani. At that time, the respondent was patiently heard like an elder sister and not like a sister-in-law and the respondent was advised to forget all these things and not to ruin her life and that of her son. She was made to understand that she had a terrible misunderstanding in her mind and that all the family members were with her. Subsequent thereto, somewhere in April/May 2003, a meeting was arranged between the appellant's sisters as well as the respondent's sister, Devyani, brother, Urvish, and sister-in-law, Sonali, in the presence of the appellant and the respondent to bring about an amicable solution to the matrimonial discord prevailing between the parties hereto. At that meeting, which lasted till about 2.30 in the night, everything was discussed at length with an open mind and frankness. Once again, the respondent was urged to purge her mind of all these suspicions even by her own brother and sister, and to start life afresh. At that time, the respondent had agreed to give up all her allegations and accusations. Everybody had departed with a great sense of relief that all would be well in future. But all these hopes were short lived. Very soon, the respondent was back to her old habit of flinging baseless allegations against the appellant and when things started becoming unmanageable, the appellant's friend Unmesh intervened. Once again, a series of meetings were held and during one such meeting, where the parties hereto as well as the respondent's sister and brother were also present, after some allegations and counter allegations, the respondent admitted her mistake and gave an oral undertaking not to repeat the same in future. At this meeting, in the presence of all, viz. Unmesh, his wife Yagna, Devyani, Urvish and the appellant, the respondent assured to go to all the persons to whom she had spoken ill of the appellant and had cast aspersions on his character, and apologize and admit her mistake in doing so. However, she did not stand by her words or assurances and did not act as she assured.
2.64 Apart from meting out such mental cruelty in the manner stated above, the respondent has also not spared the appellant from being harassed so far as his professional work was concerned. Merely with an intention to harass and torture the appellant, the respondent had been, time and again, threatening the appellant that she would come into his office during the office hours and would, in front of all his staff members and the clients, shout at the top of her voice and make them aware of the disputes prevailing between the appellant and the respondent. The purpose of doing so was nothing else but to ensure that the appellant succumbed to the terms of the respondent and also did not say a word against the respondent and would not try to stop the respondent in behaving in the manner in which she would like to behave in the house even though such behaviour was not befitting the respondent as a wife of the appellant. Over and above, the respondent had been having a single-point-agenda and that was to harass the appellant. On account of such threats extended by the respondent, the appellant was under a constant stress that the respondent might any time rush into the office of the appellant and create an ugly scene in front of the staff as well as the clients of the appellant and if it so happened the same would certainly turn out to be prejudicial and harmful to the prestige, reputation and dignity of the appellant as well as the respondent and the family as a whole. Such stress did not permit the appellant to work with concentration and a peaceful mind which resultantly affected the overall performance of the appellant in his professional work. To overcome the stress and to ensure that his professional work was not affected, the appellant was compelled to make more efforts, work harder and put in more hours of work which ultimately adversely affected the overall health of the appellant.
2.65 Despite appellant's sincere efforts to ensure that the respondent did not put such threats into reality, the appellant took extra care to see that nothing was done or spoken by the appellant which would either instigate or provoke the respondent to act as per her threats, without any such instigation or provocation only with an intention to put the appellant in an embarrassing situation and humiliate the appellant in the presence of his staff and clients. On April 25, 2005, in the afternoon, after the appellant returned from the court and was busy in preparing for his matters for the next day, the respondent, all of a sudden, came into the office of the appellant and started quarreling with the appellant. At that time, the appellant's staff members were present in the office and, therefore, the appellant told the respondent not to talk to the appellant in such a manner and not to behave in such an irresponsible manner which created a bad show which would ultimately spoil and lower down the reputation, prestige and dignity of the family as a whole. On having been so told, the respondent, instead of talking softly and in a lower tone, started shouting at the appellant and in a very insulting tone told the appellant that the appellant's family had no reputation at all and therefore, he should not bother about losing any reputation. Not only that the respondent, in a very loud voice, so as to ensure that her voice travelled outside the chamber of the appellant and was heard by the people sitting outside the chamber, started making allegations against the appellant, his mother and his sisters. All the allegations which had been levelled by the respondent against the appellant and his family members time and again in the past, were repeated by the respondent in a loud voice only with an intention to lower down the dignity of the appellant in the eyes of his office staff and the junior colleagues. The appellant tried a lot to restrain the respondent from doing so, however, the respondent was bent upon creating a situation whereby the appellant underwent mental torture, humiliation and stress. On that day i.e. April 25, 2005, the respondent sat in front of the appellant and continued to speak in such an offensive manner for more than two hours which caused tremendous pain, agony, anguish, stress and torture to the appellant on account of which the appellant was unable either to work efficiently or concentrate for another four to five hours and had a terrible headache which compelled him to stop his work for that day and had to compulsorily retire early and get up very early the next morning to read and prepare for the important matters which were listed on board before the High Court for April 26, 2005. The appellant has been able to record a part of the conversation that took place between the appellant and the respondent.
2.66 Once again, the respondent came to the office of the appellant at about 12.00 noon while the appellant was busy with his clients and stenographer. The appellant was busy preparing the affidavits which were required to be filed before the Hon'ble High Court in the following week and for which the appellant had called his clients. One Mr. Anish Kharidia who happened to be a common friend of the appellant was also present as he was also involved in the matters. Respondent, all of a sudden, without any instigation or provocation came into the chamber of the appellant and in front of his clients and the stenographer, told the appellant that she wanted to talk to the appellant regarding some domestic affairs. The appellant, realizing that the purpose of the respondent's entry in the office was nothing other than to create an ugly scene to implement the threats extended by the respondent, requested his client and the stenographer to leave his chamber and wait outside for some time. This situation itself was quite embarrassing for the appellant inasmuch as the appellant would never ask the clients to leave the chamber for attending to any domestic work during the office hours and the appellant also very well understood that it would be very embarrassing and humiliating for the clients as well as the stenographer to be asked to leave the chamber in such a manner. Since Mr. Anish Kharidia, being a close friend of the appellant as well as the respondent's brother, was well aware of the disputes prevailing between the appellant and the respondent and, therefore, there was no point in asking him to leave the chamber. Not only that, the appellant thought that presence of Mr. Kharidia might compel the respondent to control herself and act in a manner befitting a civilized person which, otherwise, the appellant was pretty sure that the respondent would not have cared for. However, this hope of the appellant was also belied inasmuch as the respondent did not care or bother about the presence of Mr.Kharidia and despite Mr. Kharidia being there the respondent behaved in a manner not befitting a cultured and civilized person. The respondent showed scant respect for the appellant, his mother and/or his sisters and started abusing the appellant, his mother and his sisters in front of Mr. Kharidia. Not only that, she also made allegations against the appellant in the presence of the said Mr. Kharidia by resorting to character assassination of the appellant. The trivial and flimsy ground picked up by the respondent for creating such a havoc in the office of the appellant and that too, during his working hours was only in respect of certain toiletries and other household provisions which the respondent wanted the appellant get from the market. The appellant consistently kept on assuring the respondent that she had no reason to make an issue out of that and create such an ugly scene in the office in presence of the staff of the office and the clients and that she would be getting whatever she wanted by the evening of the same date. However, she was least interested in bringing such useless conversation to an end and therefore only with an intention to humiliate, torture and harass the appellant, continued the tirade endlessly. Mr. Kharidia also tried his level best to pacify the respondent and time and again the appellant and Mr. Kharidia requested the respondent to leave the office and let them work peacefully. However, the appellant did not accede to such requests made by them. Ultimately, the appellant was compelled to call up Mr. Narayanbhai Patel, the senior advocate who had been playing an active role all through in trying for an amicable solution between the appellant and the respondent. On having been informed by the appellant, Mr.Narayanbhai spoke to the respondent and tried to persuade her not to create any such situation in the office and tried to explain to her that the domestic disputes were not to be dragged to the work place. The respondent, while talking to Mr. Narayanbhai, twisted the whole issue and gave a distorted version of what transpired between the appellant and the respondent prior to the appellant calling up Mr. Narayanbhai. Not only that, despite having assured Mr.Narayanbhai that she would not create any undesirable and ugly scene in the office, the respondent continued to quarrel with the appellant even thereafter. However, with great difficulty and by sincere efforts of Mr.Kharidia, the respondent left the office of the appellant. However, during the time she was there in the chamber of the appellant, at times, she spoke in such a loud voice that her voice could easily travel outside the chamber of the appellant and was quite audible to the people sitting outside the chamber, which included the junior colleagues of the appellant, the office staff, the stenographer and also the clients of the appellant who had been requested to go out and sit and also others who had been waiting to meet the appellant. This obviously embarrassed the appellant tremendously and also caused tremendous pain, agony, anguish, stress and torture to the appellant. The said conversation has also been recorded by the appellant. The above left the appellant physically, mentally and emotionally drained out and it became extremely difficult for him to thereafter get back to work.
2.67 The respondent had all throughout been abusing the profession of the appellant by saying that the lawyers are liars and that they simply lie in the courts and are fooling the people in the name of justice. She always downgraded the profession of the appellant in front of his friends and acquaintances. She also threatened that she would tell all his clients who came to his office that the lawyers were always interested in the money of the clients and that they are all cheaters and that the appellant is also one such lawyer who will take away the money of the clients and then leave them high and dry. She threatened that she should ensure that the appellant's reputation was ruined amongst his clients. The respondent apart from having threatened time and again called the appellant a liar, even in front of others including in the front of friends and domestic staff and other family members.
2.68 The respondent had always been totally careless and had failed in her duties as a wife of the appellant. Despite the fact that the appellant is the only son in the family, all sisters are married and that the mother of the appellant was about 80 years old and suffering from severe arthritis and osteoporosis, the respondent hardly bothered about the running and functioning of the household and the mother of the appellant was compelled to shoulder the said responsibility despite her feeble physical condition. This itself was a matter of grave concern and pain for the appellant inasmuch as the appellant constantly felt that he was not in a position to give the comfort to his mother which she deserved at the age of 80 years. Whenever the appellant tried to explain to the respondent that it was the duty of the appellant and the respondent to ensure that the 80 year old mother lived a peaceful and comfortable life, the respondent, instead of appreciating the feelings behind the same, always picked up a quarrel with the appellant and told the appellant that she did not feel and believe that the mother of the appellant deserved any such comfort because she had never bothered for the comfort of the respondent. Despite the fact that the appellant's mother had been shouldering most of the domestic responsibilities all throughout, whenever she did something, the respondent mistook and misinterpreted the same as an interference from the appellant's mother. The respondent was acting in such an irresponsible manner that for the last about six months, practically every weekend she left the house of the appellant by about 11 a.m. and returned late at night after 11 p.m. Not only that, even during the week days for about last 20 days she left the house by 11 in the morning, only to come back late in the night after about 11 p.m. The appellant had time and again requested her not to remain out of the house till such late hours because it was not safe for a lady and also because if she arrived late either the appellant or his mother had to wake up to open the door for her. Whenever she was so told she would pick up a quarrel with the appellant and tell him that she was not a slave and that the appellant had no right to dictate terms to her. Even after returning at such late hours, she would sit in the family room which is next to the appellant's mother's bedroom and watch television at a loud volume till the wee hours of morning, being least bothered about whether the same caused any disturbance to the old mother of the appellant. The appellant had told the respondent a number of times not to do so. However, the appellant had adamantly continued to do so and with vengeance. This also caused tremendous pain, suffering, agony, anguish, stress and torture to the appellant.
2.69 The situation, as stated hereinabove, had gone from bad to worse and had reached to such an extent that it had become impossible for the appellant to live peacefully with the respondent. Not only that the behaviour of the respondent was causing tremendous pain, suffering, agony and stress to the appellant and the appellant was also not in a position to either live peacefully or work peacefully. The appellant was constantly living under stress because on one hand the appellant was being so much harassed by the respondent and at the same time on the other hand the appellant's mother who was aged about 80 years was also equally harassed and mentally tortured by the respondent. Howsoever the appellant might have tried, the respondent was not at all prepared to live happily and peacefully with the appellant. Not only that, of late, the respondent had started threatening the appellant and his mother that if at all either the appellant or the mother of the appellant would try to complain about the respondent's behaviour to anybody or even to any member of the respondent's family, the respondent should act in a manner which might ultimately put the Appellant and his mother and sisters in deep trouble and that she would make sure that they should repent for complaining about her. She also threatened them that she would make a show that she attempted to commit suicide because the appellant and his mother had harassed her a lot. To the great shock and surprise of the appellant, the respondent had gone to the extent of threatening that she would also lodge a complaint against the appellant and his mother that they had demanded dowry from her and that doing so, she would ensure that the appellant and his mother were put into an extremely embarrassing situation and that the appellant's professional prospects were completely washed out and the appellant was totally finished. She also threatened that she had read all such stories in the newspaper and that now she knew how to create trouble for the appellant and his mother and other family members.
2.70 Apart from such baseless allegations made by the respondent against the appellant which amounted to character assassination of the appellant, the respondent was absolutely non- cooperative and irresponsible in shouldering the household responsibilities also. The the respondent never took the responsibility of the household affairs and was always behaving as if everything was supposed to be done by the appellant's mother. The appellant's mother though aged about 80 years had been completely active as much as she could despite her physical problems and never shirked the household responsibilities. Respondent mostly woke up at about 8 a.m. in the morning and earliest at about 7.30. She hardly got up to open the door when the servant rang the door bell early morning. It was either the appellant or his mother who would open the door. The appellant's mother was suffering from severe arthritis and she had been regularly complaining that she had severe pain in the morning and in particular when the weather was cold. She also time and again told the appellant and the respondent both that she found it difficult to get up in the morning and was unable to walk fast and she had to walk very slowly because of the severe pain she suffered and therefore, she took time to open the door for the servant. The appellant time and again told the respondent to get up early in the morning and open the door and also to look after the household affairs as it was not advisable to leave the house completely at the disposal and discretion of the servant. When the appellant tried to persuade the respondent to wake up early in the morning she bluntly told the appellant that if he was so much bothered about his mother, then he himself should get up and open the door and keep a watch over the servant. The appellant also tried to explain to her that since he was working till late night at times when he was exceptionally tired he would like to sleep till late. On having been told so, the respondent very rudely used to tell the appellant that it was not the respondent who told him to work till late night and that was certainly his problem. Thus, the respondent was never prepared to shoulder the responsibilities and as could be seen from what had been stated hereinabove, it was absolute clear under one or the other pretext the respondent was interested only in finding out faults with the appellant or his family members. The respondent all the time picked up quarrels with the appellant and his mother and under one or the other pretext, she would ensure that she did not have to shoulder any responsibility of the house and by making grievances and raising disputes she would just walk off and throw all the burden on the mother of the appellant. It has always been the mother of the appellant, who was supposed to ensure that food grains for the year were properly procured, cleaned and stored. Even in absence of the domestic staff, she never bothered for the appellant and it had always been the servant who served the appellant when he had his meals. The respondent also knew that the appellant was fond of good food and always enjoyed the food if it was served fresh and hot. Despite this, she never cooked for the appellant for last more than three years and the part time cook came and cooked at 7.30 in the morning and at 5 pm in the evening. The respondent had no other duty or responsibility to perform, still however, she never bothered or looked after what the appellant liked or disliked. Whenever the appellant tried to tell her to cook for her, she would rudely tell the appellant that the appellant never wanted a wife, he simply wanted a slave and that she was never prepared to be a slave of the appellant. The respondent had never offered or asked for even a cup of tea or a glass of water to the appellant after the appellant would return from either the court or the office. On innumerable occasions it would have so happened that the appellant would have got up and helped himself with a glass of water whenever he so desired, but would not venture to request the respondent because he was sure that the respondent would not like it and might in an insulting tone refuse to do so. Thus, the respondent was completely disrespectful towards the appellant. The respondent was also absolutely rude and used to talk to the appellant in a humiliating manner even in the presence of the domestic and office staff of the appellant. There are innumerable instances when the respondent had insulted and humiliated the appellant.
2.71 The relations between the appellant and the respondent are strained to such an extent that though living under the same roof, the appellant and the respondent since December 2001 have not lived as husband and wife and have been living as strangers, but at the same time constant fights, quarrels and disputes have been going on between the two. The appellant and respondent have not enjoyed any marital relations with each other since December 2001. The appellant being tired of the constant nagging and quarrels of the respondent and lack of peace, the appellant has been compelled to sleep in a separate room for last few months because without being considerate at all, the respondent always disturbed the appellant whenever he was asleep after the day's hard work by coming late into the room and then purposely making various noises by opening the cupboard and making such other noises that would disturb the sleep of the appellant.
2.72 From the overall facts and circumstances and from what has been narrated hereinabove it can be clearly gathered that the appellant has been all throughout treated with cruelty by respondent. Looking to the past and present conduct of the respondent, the appellant is convinced that it is not possible for the appellant to live a peaceful and comfortable married life with the respondent. The respondent has all throughout committed acts and still continues to commit such acts which are intended to cause mental stress, agony, pain and suffering to the appellant. There are innumerable grave and weighty incidents which go to show that the appellant has been treated with cruelty by the respondent. It has now become intolerable for the appellant to suffer any longer and to live together with the respondent.
Subsequently, by way of amendment, the following new facts were brought on record on behalf of the appellant:
2.73 Immediately after the service of summons, notice and injunction order of the Court, the behaviour of the respondent worsened further and on the very same day i.e. on 21st May, 2005, immediately after the bailiff left, the respondent called up her sister, Devyani, and started telling her so many things against the appellant and his mother and started vilifying the appellant and his family members including his married sisters. She must have talked to her sister, Devyani, on phone for about for about more than half an hour and while sitting in the dining room, in the middle of the house, she was shouting at the top of her voice and this, the appellant could hear upstairs in his office, as the voice could travel clearly up to the office, because of the pitch and volume. The appellant therefore immediately had to leave the office and the clients and had to come down thinking that she may calm down in presence of the appellant. However, these hopes of the appellant were belied and on the contrary she started shouting more and more and started abusing the appellant and his mother. Ultimately, the appellant's mother had to close the door of her room and the appellant had to go back to the office, and some time thereafter, she stopped.
2.74 After the service of the summons, the respondent had become more rude and insulting towards the appellant and had been talking to the appellant in an absolutely rude and insulting manner in front of everyone, including the servant and the staff members of the appellant. Not only that, she had started using abusive language against the appellant in front of Nishant also. She, in front of appellant told Nishant that “your father wants to kick us out of the house and you don't worry, I am here to take care of you and I will bring you up”. Over and about that she spoke too many things about the appellant and his family which were absolutely bad and filthy and nothing but a falsehood. This was being done only with an intention to cause prejudice in the mind of Nishant. Despite all these, the appellant for the sake of decency, did not utter a word and kept on telling the respondent not to speak such things in front of Nishant. Taking this as a weakness of the appellant, the respondent continued to abuse the appellant and his mother and sisters.
2.75 On 8th of June, 2005, it rained in the early morning and therefore the appellant thought of checking out and making it sure that there was no blockage in the rain water outlets in the terrace and therefore the appellant took the terrace keys and went up the terrace to check up the same. Moreover, he also wanted to call the cable operator as clear reception of TV channels was not available. He therefore had the keys with him and somehow the respondent came to know that the appellant had gone up to the terrace and he had the keys with him. The keys were kept with the appellant because the Cable Operator would have come in the afternoon or evening. However, for the reasons best known to her, the respondent asked the servant to get the keys saying that she wanted something from the cupboards which were fitted in the terrace cabin. Mostly, suitcases and mattresses are kept in the said cupboard. The servant therefore came to the appellant in the office and told that the respondent wanted to have the keys for some work. The appellant immediately gave it to the servant and told him to return after she finished the work as the appellant was expecting the cable operator's technician. After about two hours the servant called up the appellant in the office and told that the respondent had refused to return the keys saying that no one should dare to ask for the keys and that the keys should remain with her only. The appellant, after finishing the meeting with the client who was sitting, went in the house and peacefully inquired from the respondent as to what was the problem and told her that he needed the keys as he was expecting the cable operator and also the keys of the cupboard were in the same bunch and he also wanted to take out a suitcase. The respondent bluntly told the appellant that he should manage for the duplicate keys of the terrace cabin and the cupboards. Not only that, she told the appellant that he should have to give a duplicate latch key of the main door of the house to the respondent if he wanted the terrace cabin keys. The appellant persistently asked for the keys but the respondent behaved in an absolutely rude and insulting manner and did not hand over the keys to the appellant.
2.76 Thereafter, the respondent had continued to retain terrace cabin keys as well as the cupboards lying inside such terrace cabin. The respondent deliberately demanded duplicate of the latch key of the house, so that she could come to and go out of the house without any check. The appellant had repeatedly tried to convey to the respondent that there must be some time to discipline and the respondent could not stay out of the house late at night and come at any time she liked. The respondent would not listen to such requests and sharply reacted by claiming that she was not the slave of the appellant and that she had unfettered rights to come in and go out of the house whenever she chose.
2.77 The appellant was deeply shocked to learn from his mother that the respondent was torturing her and inflicting mental torture to her in his absence especially when he was in the court or had gone out of town. The respondent was abusing the mother of the appellant in the worst conceivable manner throwing all cannons of civility to the wind. The respondent stated to the mother of the appellant “TU TO VIDHAVA THAI GAI CHHUN ANE HAVE MANE VIDHAVA KARVA BETHI CHHUN”[you have already become a widow and now you are trying to make me a widow] and “VIDHAVA THAI ANE ENSHI (80) VARASHNI THAI TOY SUDHARI NAHI” [you became a widow and became 80 years old and yet you are not improving] and “AMNE EM KE VIDHAVANA CHHOKARANE PARNISH TO SHANTITHI JIVI SHAKISH” [if I would have married the son of a widow, I would have lived peacefully] and “AANE BADLE TO PARNI NE TARA CHHOKARA NE TARA THI DOOR J LAI JAVA JEVO HATO TO J TANE KHABAR PADAT”
[after marriage, if your son would have been taken far off from you, you would have understood]. The respondent was addressing the mother of the appellant in an insulting manner completely disregarding her age and respect to which she was entitled to as the head of the family. The respondent also did not pass on the messages or transfer incoming calls particularly from the sisters to the mother of the appellant and under the pretext of line not going through, she would put down the phone. The respondent tried to prevent easy communication between the appellant's mother and sisters. The appellant felt serious apprehension about the safety of his mother in view of such torture inflicted by the respondent upon her. The appellant was often required to go out of Ahmedabad in connection with his professional duties and remains constantly apprehensive about the safety and well-being of his mother. On account of such constant tortures and stress the health of the appellant's old mother had deteriorated to such an extent that the appellant was terribly worried about her health and felt that if such things continued he might lose his mother because of such stress. Such apprehension also arose from repeated threats given by the respondent that she would falsely implicate the appellant and his mother in criminal prosecution.
2.78 The son of the parties, viz. Nishant had always been made an instrument/ tool by the respondent for her own interest. She alone was responsible for instigating Nishant against the appellant. His behaviour was already rude and unbecoming of a son amenable to parental control and direction. After the service of summons his behaviour had gone from bad to worse. He seemed to be threatening and abusing the appellant and claimed to take revenge upon attaining majority. The appellant was fully convinced that he still retained his innocence and did not mean what he said. Appellant was equally convinced that he was under complete domination and control of the respondent and she had left no stone unturned to instigate him against the appellant. Such conduct of the respondent in instigating Nishant against the appellant is itself amounts to mental cruelty upon the appellant.
2.79 The respondent had continued her single minded pursuit of maligning the appellant even after the service of summons. The appellant came to know that on 19th June 2005, the respondent met Muneer Thakor, Dipen Kharidia and Saurin Sheth at Karnavati Club, Ahmedabad and repeated her allegations about the appellant having extramarital affairs with various women. The respondent also claimed that she would 'finish off the appellant and that her brother Kamlesh Chinubhai Nawab had assured that he would support her in her mission'. Such kinds of threats have been repeatedly given by the respondent even on the face of the appellant. The respondent had continued her vilification campaign against the appellant and falsely accused him of extramarital relations even after the service of of the summons.
2.80 The respondent had continued to live in the house of the appellant in view of the fact that only notice was issued regarding the injunction against her continuing to live in the house. Her continued stay in the house of the appellant was also a source of cruelty upon the appellant. Both the respondent and Nishant lived extremely irregular life and caused trouble to the appellant and his mother by frequently coming home very late at night and then they sat to watch movie in the living room, adjacent to the mother's bed room, knowing fully well that the loud volume of TV disturbed her and she could not have a peaceful night. For innumerable times even the appellant had to tell the respondent to lower down the volume as the loud sound travelled up to the room in which the appellant slept and which caused tremendous problems to the appellant as well. When they come late either the appellant or his mother had to get up late at night to open the door. The respondent's behaviour in the house was irresponsible and sadistically wasteful. She kept the A.C. Machine, fans and lights and geyser on deliberately and needlessly only to ensure that the appellant had to pay heavily for electricity consumption. During the last billing cycle, the appellant had received a bill in excess of Rs.18,000/-. The respondent had also developed the habit of taking decisions regarding Nishant without consulting the appellant. She was demanding exorbitant money from the appellant claiming to need such money to meet with educational expenses of Nishant. The respondent demanded about Rs.6/8000.00 before three weeks ago to be paid to the drawing teacher engaged by her to give private tuition. The appellant questioned the advisability of such expenses looking to the nature of the subject and its eventual utility in building the career of Nishant. The appellant also conveyed that he ought to have been consulted before committing such expenditure. The respondent was deliberately doing this to elicit a denial from the appellant and thereafter to use such incidents to instigate Nishant and create prejudice in his mind against the appellant. Nishant being a child has understandably not developed sufficient discretion to understand the decision of the appellant not to spend such money after such subject. Even in the past, the respondent was in the habit of taking unilateral decisions about Nishant's educational and other activities and used to demand money only after such decisions were taken by her without taking the appellant into confidence.
2.81 The respondent was also creating obstacles with a view to preventing or denying to the appellant smooth access to the cupboard lying inside the appellant's master bedroom. The respondent and Nishant alone were sleeping at night in the said room, as the appellant was sleeping in Nishant's room for the last few months to save himself from the disturbances and harassments deliberately created or caused by the respondent. The appellant usually attended his office from 8.30 a.m. in the morning. For this purpose the appellant needed to have access to his cupboard to get ready. The respondent deliberately locked the door and did not open to ensure that the appellant was delayed in attending his office. Even when the respondent was in the bathroom and even when such bathroom had an access from passage next to the bedroom and would not open for quite a long time. On numerous occasions the appellant had heard from outside that the respondent got up from her bed and even moved inside the room, but would not respond to the knocks and later on claimed that she could not hear the knocks as she was in the bathroom. When the appellant asked her not to lock the bedroom from inside in the morning hours, the respondent bluntly told the appellant to take his cloths on the previous night and not to disturb the respondent in her sleep. The respondent also added that she should not be disturbed particularly when the appellant had stated in the petition that the respondent got up very late.
3. The suit was contested by the wife by filing written statement thereby denying the material allegations made in the petition for divorce and her defence may be epitomized thus:
3.1 The appellant has suppressed the material facts and has concocted a bogus story and by misleading the Court has tried to win the sympathy of the Court and the petition suffers from suppressio veri and suggestio falsi and on this ground alone, the petition is required to be rejected in limine.
3.2 The appellant has not come with clean hands and has filed the petition to hide his own wrong deeds by throwing mud on the respondent and with a malafide intention to drive out the respondent and his son from his house after a long span of married life of about 20 years and therefore, the petition is required to be rejected with exemplary costs to set an example to refrain the appellant from harassing a pious and devoted wife like respondent.
3.3 There is no ground made out by the appellant as required under Section 13 of the Hindu Marriage Act and this preliminary objection is required to be decided first. It is pertinent to note that even at the time of filing of the written statement, the respondent is staying with the appellant under one roof with her son.
3.4 In fact, the family members of the appellant were against the marriage of the respondent and the appellant from the beginning. The respondent belongs to a Jain family and the appellant is a Nagar Brahmin and therefore, there was strong opposition against the marriage by the mother and sisters of the appellant. Thus, the contention regarding concurrence of families of both the parties are not correct. In fact, the family members of the appellant were totally against the marria137ge of the appellant with the respondent.
3.5 Initially, the married life of the parties was pretty good except small problems and harassments from the mother and sisters of the appellant. In fact, the mother and sisters of the appellant did not want the respondent to be in their house since beginning. However, on 12th July, 1996, the sister of the appellant got married and thereafter, there was only mother of the appellant who was with the appellant and the respondent and the respondent tried her level best to please her mother-in-law in every manner.
3.6 The appellant started his career as a lawyer in the year 1986 and he had to establish himself in the practice. The respondent herself is also an well-educated person and was fully aware about the profession of a lawyer. Knowing this fully well, the respondent was always supporting the appellant wholeheartedly and even tried to help him in his office work so that he could establish well in his practice and keeping in view the above intention, the respondent was always trying to avoid complaining about the domestic problems she was facing from the mother of the appellant. Thus, the contention regarding complaints made by the respondent in the petition, are totally incorrect.
3.7 The respondent was fully aware of her responsibilities and duties toward her husband and family as a whole and therefore, the allegations against the respondent about the so-called complaints and interference in the household affairs were not correct. There was no question of interference because there were mother and married sisters of the appellant and there was no voice of the appellant in the household affairs.
3.8 There was no question of picking up of quarrels with the appellant by the respondent as she was well educated and came from a well-to-do and educated and a joint family and such attitude from an educated person even if told by someone, cannot be believed and relied upon. Had this been so, the respondent by influencing the appellant, could have been separated from his mother or would not have stayed in the house of the appellant for twenty long years with the appellant and his mother.
3.9 After about 20 years, the appellant cannot complain about religion of each other. Before marriage, when the appellant fell in love with the defendant, he was well aware about the fact that he belonged to Nagar Brahmin community and the respondent to Jain community. The respondent never believed only in Jainism and she respects all the religions in the world. So far as the contentions that “Jatras” and “Paryusan” are concerned, the appellant and his mother never allowed the respondent to go with her family members of parental side after getting married with th137e appellant and the respondent accepted gracefully in her life that when she is married to Nagar family, she should not insist on following her religion. Only on the last day of “Samvatsari”, she used to go to her father's house to get the blessings of the elders with the permission of the mother of the appellant. The contentions as regards the appellant could not join the tour arranged by his friends in the month of August, is totally baseless and concocted. On the contrary, the appellant has not shown any desire to take the respondent and the son out of station for pleasant visits. The appellant loves to move alone for his own pleasure for the reasons best known to him. Even the incidents narrated in the petition are described by suppressing material fact that the son, Nishant was suffering from asthmatic bronchitis and was kept on nebulizer and that is why, as a mother,137 the respondent remained with the child and the appellant being a careless father, went to Mount Abu for a pleasant tour. From March, 2001 to June, 2005, the respondent had gone to stay at her parents'
house only two times in the entire period of 4 years, first, when she was having serious dysentery and her brother's wife came and took her for three days when she found that neither the appellant nor his mother was taking her care even on humanitarian ground and secondly, when her brother, Mr.Urvish Nawab, and his family had gone to Japan for a period of 7 days she had gone and stayed there to take care of her old mother who was aged about 78 years.
3.10 The contentions that the respondent was below average in her study is a creation of mala fide intention of the appellant. The respondent had passed her B.A. examination prior to meeting the appellant in July, 1983. Even she had joined first LL.B. in May, 1982. So, when she met the appellant first time, she had already completed the first year LL.B. There was no encouragement, convenience or comforts from the appellant's side for her further study. Even during the examinations, she used to get up early in the morning and study and then after 7 O'clock in the morning, she used to attend her household work for all the family members. The contention that she used to go to her parent's house before one month is totally false and fabricated. On the contrary, the appellant did not allow the respondent to go to her parents' house on the plea that there was nobody to look after the domestic work in the house. The contention with regard to the alleged ill health of the respondent was totally false and this kind of problem had never arisen.
3.11 The appellant used to permit the respondent to go to her parents' house only on the day of “samvatsari”. The respondent was facing the cruel behaviour of the mother and sisters of the appellant and bearing the same under the hope that one day, the attitude of the in-laws towards her would be changed and she would be comfortable in the house she tolerated such cruelty but the mother of the appellant had driven the respondent out of the house by creating quarrels on petty issues. She was compelled to come back to her parents' house and stay there for one month. But during this period, her father, brothers and she herself tried level best to contact the appellant and his mother for reconciliation. At that time, neither the appellant nor any of his relatives tried for reconciliation but at last, her father could be successful in contacting Mr.Pulkit who is a family friend of the appellant and after his intervention, a meeting was arranged at the house of the appellant and at the relevant point of time before Diwali, she had gone to the appellant's house with her father, mother and elder brother Kamleshbhai and at that time also, the mother of the appellant behaved very rudely with them and therefore, her elder brother, Kamleshbhai, opined that there appeared no sign of compromise and there was no point in discussing anything since the mother of the appellant did not desire the presence of the respondent in the appellant 's house but at last, with the intervention of her father and on the promise made by the appellant that he would take utmost care of the respondent, she started staying with the appellant at his house from the day of Diwali. The contention with regard to the disputes and threat for suicide is far from truth and is a result of evil mind of the appellant. The respondent had never even thought of such things and false, baseless and concocted allegations are made in the petition.
3.12 In fact, basically there was no problem or dispute between the parties and even on the date of filing the written statement, there is no dispute between the parties and that is why, the respondent was really shocked when she received a notice on May 21, 2005 from the Court in the presence of the appellant in the house and he himself told her to acknowledge the receipt to the bailiff. So far as the allegation with regard to Baygon Spray is concerned, the mother of the appellant had created a false quarrel and ordered the respondent to leave the house and the husband both, in a very rude manner, in presence of the three-years-old-child who also started crying looking at the behaviour of the mother of the appellant. At that time, the respondent had become so emotional and shocked with the behaviour of her mother-in-law that she had taken out the Baygon Spray into a cup but in the meantime, as the appellant who was working in his office heard the noise of weeping of the respondent, had rushed inside from the office room, he poured down the Baygon Spray. Thereafter, in presence of all the family members, the respondent telephoned to a personal friend of her father, Mr.Giriraj Desai, and explained to him the situation under which she was living in the house. However, he advised the respondent to go to her parents' house and upon his instructions, the respondent called her brother's wife Mrs.Parul Nawab, to accompany her to their house. On one hand, the respondent could not live without her husband and on the other hand, her mother-in-law and other family members were not permitting her to live in the house.
3.13 The appellant had no time to look after the health of his wife because of his extramarital affairs. Thus, the contention with regard to special care taken for the respondent is not correct.
3.14 The appellant had also no time to spend for his own son, Nishant. He was always busy with his friend Keta and his own mother. The contention that the respondent has bluntly told to the appellant that he should insist about her return to the in-laws house is totally baseless and concocted with a view to mislead the Court. In fact, at the time of first delivery of the child, as per the tradition of the Hindu families, the respondent was required to go to her parents' house and immediately in the fifth month after the delivery, she came back to the appellant 's house. On the first birth day of the child, Nishant, the appellant had not bothered to remain at home and remember the birth date of the child. Even his mother and sisters had also no importance of the day and the appellant was always busy with his friend Keta. In the evening on the first birthday of the child, the respondent had taken her child to her parents' house and her both the brothers had brought the cake and also gave gift to the child.
3.15 Right from the beginning, the appellant is extremely dominating and head-strong. He would always do whatever he wanted to do and he would not think for others and he is known for such nature in his family and friends. He always used to humiliate and insult the respondent and their son in presence of friends and family members.
3.16 Actually, the appellant met Keta in 1984 at Mount Abu and he and Keta liked each other but when Keta came to know that the appellant is already engaged with the respondent, she got married and the parties to this suit also got married in 1985. However, during the pregnancy of the respondent, the relations between the appellant and Keta revived and because of that during the pregnancy of the respondent, the appellant had harassed her like anything. Everybody in the family was aware that the appellant was regularly going with Keta every day in the evening and in spite of this, instead of saying anything to the appellant, they were remaining silent.
3.17 In fact, the appellant was enjoying his extramarital affairs even in his office room by calling other women in the office. No Hindu wife should permit such kind of activities either in the house or in the office of the husband. Here in this case, the house and the office are situated in the same premises. Even the son, Nishant, had seen the appellant sitting with other woman in the office room. This incident has affected tremendously on the psychology and mind of the child of tender age, which cannot be expressed in words.
3.18 Because of his extramarital affairs, the appellant decided to shift his office outside and he got an office in Aditya building in Mithakhali area, Ahmedabad, though there is ample space available in the residential bungalow and till the filing of the written statement, the office was running without any difficulties in the same premises. The respondent had not left the house in September, 1996 suddenly but she was under tremendous mental tension by knowing that the appellant was having affairs with Keta and on the other hand, the mother of the appellant was insisting the respondent on leaving the house of the appellant and in fact, the respondent was tortured by both the appellant and his mother and in the circumstances, she had no other alternative but to leave the house of the appellant.
3.19 With reference to the allegation of not sending the son to the pooja for the office, in fact, in the early morning the appellant telephoned to send Nishant to attend the pooja in the office but he did not utter a single word inviting the respondent to come to attend the pooja. The respondent was expecting some sort of sympathetic words from the appellant. In spite of the same, she was ready to send Nishant for attending the pooja in the office but Nishant did not agree to go alone without the respondent. Even then she asked the appellant to send someone to take Nishant but nobody came to take Nishant and therefore, the son could not go. Of course, the respondent felt very bad for being ignored without any invitation on the function of pooja in a new office particularly when she herself had encouraged him and helped him in every manner for the development of his professional career in the beginning. Although the appellant had ignored the respondent, she being his wife and as a well-wisher, had sent a gift on the said occasion of opening the new office.
3.20 The appellant had no love and affection for his own child and therefore, Nishant also did not like him and consequently, whenever there was any occasion, Nishant himself was not prepared to go alone with the appellant and thus, the contention that the respondent had not permitted Nishant to go with him, is totally false and baseless.
3.21 With reference to the allegation of hospitalization of the mother of the appellant, in fact, the appellant had never informed the respondent about the fracture to the mother of the appellant. The respondent came to know about the same through one family friend, Shri Vipinbhai Parikh, and immediately on coming to about the same, she rushed to the hospital but the appellant and his other family members, had no time to speak to the respondent and they also did not allow her to see her mother-in-law. In fact, as the sister of the appellant, Shruti, was staying with other sister Minal in the same house and they were looking after their mother and for the other household works, like cooking, cleaning, etc. other persons were kept. Furthermore, the respondent was threatened even not to enter the compound of the Bungalow and in these circumstances, she could not go and look after her mother-in-law though she very much desired to go.
3.22 With reference to the allegation that the respondent had stated that “do you realize that how difficult is life” is false and fabricated. As a Hindu wife, the respondent could not think or even say to her husband but to hide his own wrongs, the appellant has tried to win the sympathy of the Court. In fact, in spite of the aforesaid incidence, the respondent had gone with the child to the house of the appellant at about 9 O'clock in the night on the day of Diwali but there was nobody except her mother-in-law in the bed. On making inquiry, she came to know that the appellant had gone to a pleasure trip with his sister and brother-in-law to enjoy the Diwali vacation. She was really shocked to know this and felt that nothing could be expected from a husband who did not bother to take care of his own mother who was in bed.
3.23 In the last week of March, 2011, the respondent had telephoned the appellant and had gone with her son to the appellant's house to reconcile the grievances. At that time also, she had warned the appellant that she was ready to face all the difficulties except extramarital affairs and in fact, the appellant had promised that he would try to rectify himself and would not repeat the mistake and with that assurance, she started living with the appellant.
3.24 The contention as regards the litigation between the two brothers of the respondent has no relevance with the married life of the respondent with the appellant. The appellant has unnecessarily increased the volume of the petition by narrating such false, fabricated and irrelevant facts. In fact, the appellant has got the disputes between the two brothers increased and did not allow or help to solve the disputes between his brothers-in-law. In fact, Mr.Naranbhai Patel, the senior advocate, who remained the senior of the appellant when he started his career as an advocate, had also advised the appellant to solve the dispute and not to create any situation which might result into increasing the distance between the two brothers. But the appellant was so adamant that he did not take the advice of his senior in its true spirit and on the contrary, instigated the younger brother of the respondent.
3.25 With reference to the allegation that the respondent was going to her parents' house of and on, the same was a false one. The renovation of the house was done in the year 2000 and subsequently, in 2002. The contention that the appellant had incurred heavy debts for renovating the house is totally false and incorrect. In fact, the appellant is a well-established advocate and is earning a handsome income and therefore, the said contention cannot be believed at all.
3.26 In fact, there is no dispute between the appellant and the respondent except the appellant 's extramarital affairs even in the year 1996 and at the time of filing the written statement also.
3.27 With reference to the allegation with regard to the renovation in the bungalow, the respondent had played no role and all the renovation has been made according to the advice of Mrs. Minal, the sister of the appellant. So far as the expenses are concerned, the appellant has never given any right to the respondent to spend any money and, therefore, the said contention is totally false, fabricated and wholly untrue, just to show before the Court that he was kind enough to give respondent the money and to allow her to spend, as it happens in every house. In fact, the appellant has never given the respondent such a liberty or even to believe that she was a housewife loved by the husband.
3.28 With reference to the allegation with regard to the dead bodies of mother and son at the time of the sacred ceremony of thread is nothing but false, fabricated and bogus story created by the dirty mind of the appellant. In fact, the respondent has never uttered any words and no mother would speak anything like that about her son and more particularly when the thread ceremony of her own son was to be performed. In fact, under the guise of sacred ceremony, the appellant was trying to emotionally blackmail the respondent and without any reason, he remained complaining to the friends and relatives of the respondent that the respondent was not supporting him. In fact, the appellant was afraid of the situation that all the friends and relatives who had come to attend the function would be influenced by the respondent and they would come to know about the real situation about the extramarital affairs of the appellant. Even during the sacred ceremony, the appellant was humiliating the respondent in presence of all the relatives and friends of both sides but the respondent always tolerated such humiliation and tried to see that the function is properly performed.
3.29 When the extramarital affairs of the appellant surfaced, the respondent tried her level best to persuade the appellant to save their married life. The respondent also requested her mother-in-law and sister-in-law to bring back the appellant from the path on which he was going. The fact that the appellant has extramarital affairs with different ladies is known to everybody and therefore, the appellant cannot come out of it by making allegations against the respondent.
3.30 The appellant was interested in calling the friend of the respondent, namely, Rupa, from USA on the occasion of sacred ceremony of their son with vested interest, but ignoring the same, the respondent, in a casual manner, told the appellant that Rupa could not come because she had gone to USA very recently and it would not be possible for her to come back so early. This casual say of the respondent was taken otherwise by the appellant and had a quarrel with her for the reasons best known to him.
3.31 The contention that the respondent should not give much importance to small and trivial matters in life and should not expect the things to happen according to her wish and will, is far from truth. In fact, the appellant is of the nature that everybody should obey his instructions and in that way, he tries to dominate others.
3.32 The appellant has humiliated the respondent on number of occasions and so far as the responsibility of their son, Nishant, is concerned, it was upon the head of the respondent as the appellant was always busy with his extramarital affairs and never behaved like a responsible father loving his son. In fact, the appellant was always busy in enjoying the parties with his friends and more particularly, lady friends and had no time to look after his family which is the bounden duty of a Hindu husband.
3.33 The respondent has never taught anything to their son against the appellant, but when the son has himself seen that his mother is humiliated by his father and when the son has seen his father with other woman in the office with his own eyes, he has lost all his respects for his father. However, as a Hindu wife, the respondent has always taught her son not to hate his father and to respect him. The respondent always used to teach her son that after all, he is his father and the appellant must be respected as such.
3.34 In January, 2003, respondent's friend Rupa had come with a different motive to stay and move with the appellant. In fact, she had kept her arrival at Mumbai secret and had called the appellant there and they stayed together for more than five days and then they arrived at Ahmedabad and Rupa was asked to stay at their house. In fact, after arrival of Rupa at their house, the appellant was giving all his time to her. They both used to sit in the office till late night and the appellant was totally neglecting the respondent and her son. In fact, the appellant was behaving with such an intimacy with Rupa at public places and even at their house in such a fashion that no Hindu wife would even tolerate such kind of behaviour of her husband.
3.35 In fact, before going to USA, Rupa herself told the respondent that she and the appellant were very close to each other and they had reached to a stage from where they could not return. The appellant was closest to Rupa and they could not live without each other and also Rupa had requested the respondent that the respondent and Nishant should go out of their life. After hearing this from the mouth of Rupa, the respondent was too much shocked and had lost all the respects for her friend Rupa and had told her that she had arrived India to break the respondent's house.
3.36 The respondent has never divulged before anybody that the appellant is having soft corner for Preya. In fact, these were the words of the mother of the appellant that Preya had soft corner for the appellant. In fact, the respondent never knew about any secret relationship of the appellant and Preya. In fact, there is no dispute between the appellant and the respondent except the extramarital affairs of the appellant.
3.37 The business activities done by the respondent has no concern with the marriage life of the appellant with the respondent but the appellant is trying to involve the same issue in the present case.
3.38 All these years, the respondent has been physically and mentally tortured by the appellant and his family members, but the respondent has tried her level best to save her house from being broken and has proved herself a Hindu wife. However, there is always a limit to certain things. The appellant has mentioned that he has got the utterings of the respondent tapped. After seeing the water coming up to the neck of the respondent, the respondent has also tapped certain things spoken by the appellant which may controvert the whole story narrated by the appellant in the petition. The respondent craved leave to produce the said tape and all other evidences before the Court, if necessary.
3.39 The appellant was not giving money to the respondent to run the house and even not paying money for their son, Nishant, for attending the camps. Therefore, on one occasion, the respondent requested the appellant on intercom and the appellant called her in the office and shouted in front of his staff and clients and therefore, in sudden provocation, the respondent had also opposed the rude behaviour of the appellant. This incident could be avoided by the appellant if he could have understood the genuine difficulty and genuine need for cultivating the minor child. But, there was evil mind of the appellant working behind all these things and he tapped her voice in the tape recorder to create evidence so that he can obtain the desired order from the Court restraining the respondent from entering the office. But this entire exercise has been done with a mala fide intention so that he can get complete freedom in his office to do whatever he likes with his lady friends.
3.40 The allegation that the respondent leaves the house at about 11.00 am and returns back at 11.00 pm is not correct. In fact, she always remained at home and went out only for the household work.
3.41 The entire petition and its contentions do not fall within the ambit of Sec. 13 of the Hindu Marriage Act and more particularly, when the false story has been created to suppress his own wrongs, the appellant is not entitled to the reliefs as prayed for by him.
4. At the time of hearing of the suit, the appellant himself and two other witnesses were examined on his behalf in support of the petition for divorce while the respondent examined herself alone to oppose the allegations made in the petition for divorce. It, however, appears that one of her brothers also was examined in part in support of her defence, but thereafter, he did not depose further in spite of repeated opportunities granted by the court and he did not even face the cross-examination at the instance of the husband. Therefore, the learned Judge of the Family Court did not take into consideration the part-deposition of the brother of the respondent-wife.
5. As indicated earlier, the learned trial Judge, by his judgment and decree impugned herein, dismissed the suit with a finding that the ground of cruelty and desertion had not been proved and rather the wife succeeded in disproving the case of the husband. According to the learned trial judge, the husband could not take advantage of his own wrong and consequently, the learned trial Judge dismissed the suit.
6. Being dissatisfied, the husband has come up with the present appeal.
7. In this Court, on the request of the learned counsel appearing on behalf of the respondent-wife, we tried to have the reconciliation between the parties and accordingly, we personally heard not only the husband and the wife, but also their son who is now a second-year-engineering-student. In spite of our best efforts, our endevour for reconciliation failed and in the end, we heard the appeal on merit.
8. Mr. Percy Kavina, learned Senior Counsel appearing on behalf of the appellant, has severely criticized the order passed by the learned trial Judge and contended before us that the learned court below, while dismissing the suit for divorce, did not follow the well accepted principles which are required to be pursued in dealing with the allegations and counter-allegations and also ignored the principle of the Evidence Act. According to Mr. Kavina, the sum and substance of the allegations made by his client in the petition for divorce was that the wife was a person of suspicious nature and did not hesitate to level baseless allegations regarding moral character of his client which amounts inflicting mental cruelty on his client.
8.1 Secondly, the wife, Mr. Kavina continues, without any just cause, treated the mother of the appellant with cruelty without any just cause and lastly, it appears from the evidence on record that from the time of marriage till the date of presentation of the petition for divorce, the respondent-wife used to reside in her father’s house most of the time thereby depriving the husband of his right to conjugal life.
8.2 As regards the allegation of making baseless allegations against the husband, Mr. Kavina points out that the wife did not dispute the fact that she made such allegations against the husband in her written statement, but she justified her conduct by asserting that she had just reason for making such allegations. By referring to the aforesaid defence taken by the wife, Mr. Kavina contends that once the husband has discharged the initial onus of proving the fact that the wife used to make such allegations and she also admitted that she really made such allegations and tried to justify her allegations, the onus shifts upon the wife to show that she had just reasons for making such allegations. According to Mr. Kavina, the wife, however, could not produce any evidence in justification of such allegations. In other words, according to Mr. Kavina, the wife could not place any material before the court or disclose any incidents from which one can reasonably defend the allegations of infidelity against one’s husband and thus, the court should have come to the conclusion that the allegation of immoral conduct against her husband had been found to be false and such fact is a ground for divorce on the ground of mental cruelty.
8.3 Thirdly, Mr. Kavina contends that the grievance of his client, that the wife used to make false allegations of involvement of the husband with various ladies in front of even third parties, has been proved to be justified from the evidence of the three witnesses of the husband of which two were outsiders. But apart from her own statement, the wife could not bring any evidence, oral or documentary, in support of her contention that the husband was a person of immoral character. Mr. Kavina contends that even no person from the family of the wife has come to support her case.
8.4 Mr. Kavina contends that from the evidence on record, it appears that without any sufficient cause the wife used to make allegations against the husband even in the presence of third parties and in her evidence, she stated that although she had proofs in support of her allegations, she would not produce those evidences for the purpose of “saving the marriage”. Mr. Kavina contends that after making baseless allegations and justifying her conduct, she is bound to prove that she had reasonable cause for making such allegation, but having failed to prove any such fact which could be the basis for her apprehension, the court should have held that the allegation of immoral character of the husband has been disproved in the facts of the present case.
8.5 Mr. Kavina further contends that it appears from the evidence on record that during the pendency of the proceeding, the wife made two criminal complaints including the one under Section 498A of the Indian Penal Code, making selfsame allegation which is the subject-
matter of this divorce proceedings. So far as the first complaint is concerned, the same has been dismissed as the wife was not present on the date fixed for consideration of the same. According to Mr. Kavina, from the aforesaid fact, it is clear that the allegations made against the husband were not correct and for that reason, she deliberately did not press the said complaint. According to Mr. Kavina, even thereafter, the proceedings under Section 498A of the IPC have been initiated not only against the husband but also against his old and aged mother and the married sisters. The wife, Mr. Kavina contends, having passed Law examination was quite conscious of the fact that this type of criminal litigation is injurious to the fame of a practising lawyer and thus, such conduct on the part of the wife amounts to cruelty.
8.6 Lastly, Mr. Kavina contends that the finding of the court below that the husband had condoned the act of cruelty is based on total misreading of the evidence on record. Mr. Kavina points out that it is the specific case of the husband that although they were staying in the same house, they were not living as husband and wife from the year 2001 and there is no evidence adduced by the wife even asserting that after the year 2001, they cohabited and lived as the husband and the wife. Therefore, according to Mr. Kavina, the plea of condonation was not available to the wife.
8.7 In support of his contentions, Mr. Kavina has placed strong reliance upon the following decisions:
[1] V. Bhagat v. Mrs. D. Bhagat, reported in AIR 1994 SC 710.
[2] Mr.P. vs. Mrs. P. and Mr. R., reported in [1987] 89BOMLR 588.
[3] Smt. Arati Mondal v. Bhupati Mondal, reported in AIR 2009 Calcutta 200.
[4] Shobha Mhatardev Lomte v. Mhatardev Tukaram Lomte, reported in AIR 2009 Bombay 160.
[5] Ramesh Kumar Sharma v. Smt. Akash Sharma, reported in AIR 2008 Himachal Pradesh 78.
[6] Asit Kumar Das v. Smt. Kalpana Das, reported in AIR 2007 Calcutta 160 [DB].
[7] Smt.Sadhana Srivastava v. Arvind Kumar Srivastava, reported in AIR 2006 All. 7.
[8] Mrs. Manisha Sandeep Gade v. Sandeep Vinayak Gade, reported in AIR 2005 Bombay 180.
[9] Smt.Kakali Das v. Dr. Ashish Kumar Das, reported in AIR 2004 Calcutta 176.
[10] Prem Chand Pandey v. Smt. Savitri Pandey, reported in AIR 1999 Allahabad 43.
[11] A. v. B., reported in AIR 1985 Gujarat 121.
[12] Mukesh Kumar Gupta v. Smt. Kamini Gupta, reported in AIR 1984 Delhi 368.
[13] A Jayachandra v. Aneel Kaur, reported in AIR 2005 SC 534.
[14] Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, reported in AIR 2003 SC 2462.
[15] G.V.N. Kameswara Rao, G. Jabilli, reported in AIR 2002 SC 576.
9. Mr. Mihir Joshi, the learned Senior Counsel appearing on behalf of the respondent-wife, has, on the other hand, opposed the aforesaid contentions of Mr. Kavina and has contended that in this case, the learned court below, on consideration of the entire materials on record, by a detailed judgment having dismissed the suit, this Court should not interfere with the said finding of fact based on proper appreciation of the evidence on record. Mr. Joshi contends that the onus is on the appellant-husband to prove his case and in this case, the husband could not discharge his burden. Mr. Joshi contends that even if it is assumed for the sake of argument that the wife did not give sufficient evidence to show that the husband had any illicit affairs with any of the ladies mentioned in the petition, for failure on the part of the respondent-wife to give such evidence cannot enable the appellant to get a decree of divorce on the ground of cruelty. Mr. Joshi further strenuously contended before us that in this case, the learned trial Judge rightly held that there was condonation on the part of the husband of the alleged cruelty as even at the time of institution of the proceeding for divorce, the wife was staying in the same house with the husband.
9.1 As regards the allegations of subsequent event of the complaint under Section 498A of the IPC, Mr. Joshi contends that the said criminal proceeding is yet to be decided on merit and at this stage, it cannot be concluded that the wife had no just cause of making such complaint. Mr. Joshi further contends that it is not possible to lead direct evidence of adultery, but his client, by narrating various facts in her evidence has proved that there was sufficient basis for making allegations against the husband of his involvement with other ladies and in such circumstances, it was the duty of the husband to bring those ladies in the witness-box for the purpose of asserting that there were no such illicit affairs with those ladies.
9.2 Mr. Joshi lastly contends that even in the facts of the present case, his client is ready and willing to stay with the husband after taking into consideration the future of the only son of the parties and in such a situation, it is a fit case where decree for divorce should be refused. Mr. Joshi thus prays for dismissal of the appeal.
9.3 In support of his contentions, Mr. Joshi has relied upon the following decisions:
[1] Smt. Hema Redy v. Rakesh Reddy, reported in AIR 2002 Andhra Pradesh 228.
[2] Naval Kishore Somani v. Poonam Somani, reported in AIR 1999 Andhra Pradesh 1.
[3] Mrs. Deeplakshmi Sachin Zingade v. Sachin Rameshrao Zingade, reported in AIR 2010 Bombay 16.
[4] Madhusudan Das v. Smt. Narayanbai [deceased] by LRs. And others, reported in [1983] 1 Supreme Court Cases 35.
[5] Chiranjeevi v. Smt. Lavanya, reported in AIR 2006 Andhra Pradesh 269.
[6] Kamleshwari Bai v. Peeluram Latkhor Sahu, reported in AIR 2010 Chhatisgarh 16.
[7] Smt.Sabita Chowdhury v. Smt. Dulali Mondal Chowdhury, reported in AIR 2006 Calcutta 318.
[8] Naveen Kohli v. Neelu Kohli, reported in AIR 2006 SC 1675.
[9] Dr.N.G. Dastane v. Mrs. S. Dastane, reported in AIR 1975 SC 1534.
[10] R. Balasubramanian v. Smt. Vijayalakshmi Balasubramanian, reported in AIR 1999 SC 3070.
10. Therefore, the question that falls for determination in this appeal is whether the learned court below was justified in dismissing the suit for divorce filed by the husband on the ground of cruelty and desertion.
11. After hearing the learned counsel for the parties and after going through the materials on record, we find that the fact that the wife used to make allegation of immoral character of the husband has not been denied by her either in the written statement or in her deposition. In her deposition, she has only claimed that although there is evidence in her possession to show that the allegation against her husband was correct, she refrained from producing such evidence for the purpose of saving the marriage.
12. We are, however, unable to appreciate the aforesaid explanation. We fully agree with Mr. Joshi that the burden to prove the case of cruelty is upon the appellant, which in the instant case is upon the husband. Husband is, therefore, required to prove that the wife used to make allegation of immoral character against him and in addition to that, he is required to prove that such allegation was baseless. So far as the first ingredient is concerned, the wife in her written statement has admitted that she used to make such allegation. But her defence is that there was genuine reason for making such allegation. Therefore, the husband is, now, only required to prove that the allegation made against him regarding illicit affairs with different ladies was without any basis.
13. That there was no such illicit affair is a fact of negative nature and in our opinion, such negative fact cannot be proved by giving positive evidence. Initial burden of proving the fact that one has no involvement with any ladies out of wedlock can be discharged by simply asserting that he had no such relations with any of the ladies. Once such denial is made, the onus shifts upon the wife to prove, by giving positive evidence that there are instances which form the basis of her conviction that the husband was a person of immoral character and had illicit relations with those ladies. Therefore, in such circumstances, those instances should be placed before the Court by the wife to justify that her apprehension was not baseless. We fully appreciate the contention of Mr. Joshi that there are very few cases where direct proofs of adultery or illicit affairs are available. However, this type of fact can be proved by circumstantial evidence.
14. We now propose to consider whether from the evidence adduced before us, the wife has been able to establish that she had just ground for forming a reasonable opinion as regards immoral character or illicit relations with any of the ladies mentioned by her.
15. In the case before us, there is no documentary evidence produced by the wife showing existence of any letters written by the husband or any letters written by those ladies to her husband from which it could be reasonably inferred that there were some illicit affairs between them. We cannot lose sight of the fact that the wife stated that she had positive evidence in her possession, but she was not wiling to place those pieces of evidence on record in order to “save the marriage”. We, however, are unable to appreciate the aforesaid explanation of the wife. When the matter has come before the court and in written statement, the wife has specifically averred that there was sufficient ground for forming an opinion of illicit affairs of the husband with various ladies, some of them were her own friends and some of them are known to both the parties, she cannot thereafter, turn round and say that she would not produce the evidence for the purpose of “saving their marriage”. In such circumstances, the court should draw adverse inference against the wife if in spite of existence of the evidence, she does not produce such evidence. Thus, plea of “saving the marriage” is not available plea of the respondent when the appellant has specifically asserted that the allegation was incorrect. In the case before us, it has been established that she made such allegations not only to the husband alone, but also in the presence of the P.W.2 and P.W. 3 who are the friend of the husband and an architect respectively of whom the latter was definitely a disinterested person. On the other hand, apart from the wife herself, no other person has come towards to support her allegations. Even her own brother,sister or mother did not come forward to support her version.
16. In such circumstances, in our view, only possible inference that can be drawn is that there was no just reason of making allegation of involvement of the husband with any of the ladies.
17. From the evidence on record, it appears that those ladies are all married and are living with their respective husbands; one of them, viz. Rupa, was the own friend of respondent who stays in U.S.A. and on the invitation of the respondent, she came to India for the purpose of attending thread ceremony of her son. There was no just reason of involving Rupa with the appellant-husband when there is no basis of arriving at any such conclusion of illicit relation. Even the husband of Rupa has never made any allegation against his wife. Same thing can be stated about other ladies mentioned in the application. It appears from the evidence on record that the wife has made selfsame allegation before the police authority in her complaint under Section 498A of the IPC involving her husband with various ladies during the pendency of the divorce proceedings. In such circumstances, in our opinion, such behaviour of the wife definitely amounts to cruelty towards the husband. It has certainly an injurious effect upon the mind of the husband and at the same time, he has been humiliated not only among the friends and the professional acquaintances but also before the society to which he belongs and consequently, such baseless allegation definitely amounts to cruelty.
18. As regards the plea of condonation, as strenuously argued by Mr. Joshi, we find that the husband has specifically stated in his application as well as in his deposition that although they were staying in the same house, but separately and in view of the strained relations between the parties, there was no cohabitation from the year 2001. No assertion even has been made by the wife herself in her deposition that they used to cohabit at the time of presentation of the petition for divorce. Thus, even if the husband condoned her cruel act by cohabitation, once such cruelty continued, even the earlier condoned cruelty revived for the post 2001 cruelty committed by the wife by making fresh allegation against her husband involving Rupa and others.
19. We, therefore, find that in the case before us, it has been proved beyond any doubt that there was no just material placed before the court by the wife to conclude that she had sufficient cause for making the allegation of involvement of the husband with various ladies and such baseless allegations made even before third parties definitely amount to cruelty.
20. We now propose to deal with the decisions cited by Mr.
Joshi.
21. Mr Joshi placed before us three decisions, two of the Andhra Pradesh High Court and the other, of Bombay High Court in support of his contention that the allegation regarding extramarital affairs in order to constitute cruelty must be explicitly disproved. The first decision is of the Division Bench of Andhra Pradesh High Court in the case of Smt. Hema Reddy vs. Rakesh Reddy reported in AIR 2002 Andhra Pradesh 228. In the said case, the wife although pleaded and had given evidence that the husband-petitioner was interested in getting married with another girl in his close relation, such allegation was not proved by the wife. In such circumstances, the Division Bench took the view that although such allegation made by the wife was not proved, it did not mean that it was a false allegation made against the husband so as to enable the husband to get a decree for divorce on the ground of cruelty for making such allegation.
22. We are quite conscious of the position of law that mere inability on the part of the defendant in a matrimonial suit to substantiate the allegation made in the written statement regarding bad moral character of the other spouse would not enable the petitioner to get a decree of divorce unless such allegation is proved to be wrong. In the case before us, the husband made specific pleading that the allegations of illicit affairs with other ladies were all false. We have already pointed out that the fact that there was no illicit relation of the husband with any other lady, cannot be proved by the husband by giving any positive evidence but in such circumstances, the wife should also have placed at least reasonable evidence showing that there was some relation of the husband with other ladies which justified making allegations of immoral character against the husband. In the case before us, the wife has specifically stated in evidence that although she had definite proof of such allegation, she would not produce such allegation to “save the marriage”. In our opinion, such being the attitude of the wife, in the facts of the present case, we should draw adverse inference against the wife for not producing the positive evidence she was in possession of. In spite of having proof of such allegation if she declines to disclose such proof, we should presume that she had no such proof and that she made baseless allegation against her husband. Therefore, the principle laid down in the said decision of Andhra Pradesh High Court is of no assistance to the respondent.
23. In the case of Naval Kishore Somani vs. Poonam Somani reported in AIR 1999 Andhra Pradesh 1, the Division Bench of Andhra Pradesh High Court reiterated the aforesaid principle what we have accepted. In the said case of Andhra Pradesh High Court, the husband nowhere stated even once in his examination-in-chief that the particulars of cruelty alleged in the written statement are false. According to the Division Bench, when the evidence consisted of only “oath against oath” and when the petitioner failed to say on oath that the respondent’s evidence was false, the evidence of the respondent need not be thrown out. According to the Division bench, at least it should not be said that the charges are “disproved”.
24. In the case before us, the husband has produced not only his own evidence but also those of two other persons who have stated that the wife used to make allegation of illicit relations with other ladies. In such circumstances, in our opinion, if the wife admits making such allegation but refused to give further evidence in spite of having specific proof of such allegation, it must be held that the allegation levelled by her was false.
25. In the case of Mrs Deeplakshmi Sachin Zingade vs. Sachin Rameshrao Zingade reported in AIR 2010 Bombay 16, the fact that the husband used to come late at night was not disputed. It was also established that the husband and his girlfriend used to share food from the same plate in the presence of the wife. If in such circumstances, the wife doubted the relationship of husband and his girlfriend, according to the Bombay High Court, it cannot be said that her apprehension was baseless.
26. In the case before us, the persons against whom allegations of illicit relations have been made are all married ladies in their forties, some of them are also relation of the husband and some of them are friend of wife herself. It appears that no person has come forward to support the allegation of the wife that the husband had any such relation with any person. Even the husband in his evidence has totally denied such allegation. The fact that the wife used to make such allegation and thereafter, she used to apologize before the husband for such baseless allegations in the presence of her brother, sister and mother has been specifically alleged by the husband in his pleading and evidence when they made her understand that such allegation was baseless. However, neither the brother nor the sister of the wife has come forward to deny such allegation that they insisted on not making such false allegation. In such circumstances, in our view, the fact that there was no such illicit connection has been well proved and we are of the opinion that the facts or incidents disclosed in the written statement or stated in her evidence did not justify allegation of illicit affairs and there was no ground of disclosing such allegation to the Society of the husband. We thus find that those three decisions are of no avail to Mr Joshi.
27. Mr Joshi next contended that when there is conflict of oral evidence and its resolution depends at least upon the credibility of the witnesses, generally, the finding rendered by the trial Court should prevail and in support of such contention, he relied upon the decision of the Supreme Court in the case of Madhusudan Das vs. Smt. Narayanibai reported in (1983) 1 SCC 35.
28. We are also quite alive to the position of law that finding of fact of the trial Court based on appreciation of oral evidence should not ordinarily be disturbed by the first appellate Court unless trial Court’s approach in appraisal of evidence appears materially erroneous and the said principle has been approved by the Supreme Court in the above decision cited by Mr. Joshi. In the case before us, if we apply the aforesaid principle, we find that there was no justification on the part of the learned trial Judge in not taking into consideration the fact that in spite of having definite positive evidence to prove the alleged illicit affairs of the husband with some other ladies as admitted by her in evidence, the wife decided not to produce such proof on the plea that to save the marriage she was not inclined to produce. Such defence, in our opinion, is not tenable when the wife has gone to the extent of lodging a complaint under Section 498A of the Indian Penal Code making selfsame allegation of illicit relation in the complaint before the police. We, thus, find that the said decision is of no avail to the wife.
29. Regarding the decision of the Bombay High Court in the case of Mrs Deeplakshmi Sachin Zingade (supra), we find that in that case it was not in dispute that the husband used to come late at night, that in the presence of the wife, the husband and his girlfriend used to share food from the same plate and when the respondent himself admitted that the said lady was his girlfriend, if the wife had doubted the relationship, it could not be held that such doubt was without basis. We do not dispute the proposition of law that in a given circumstances, as was held in the above decision, even the evidence given by the sole witness can be believed, but it depends upon the facts of every case. In the case before us, no such circumstance has been placed before us, which justifies existence of any immoral relation between the husband and other married ladies when all those ladies are married and the occasion of staying together at a pleasure trip along with their respective husband cannot give rise to any apprehension in the mind of any normal person to infer immoral relations between them. Even their husbands were not making any such allegation. It appears that the wife in the present case doubted her husband without any sufficient basis and expression of such doubt before the society of the husband and even going to the extent of filing of criminal case on such basis definitely amounts to cruelty.
30. Mr Joshi next relied upon two decisions, one of Andhra Pradesh High Court in the case of Chiranjeevi vs.Smt. Lavanya reported in AIR 2006 Andhra Pradesh 269 and the other of the Chhattisgarh High Court in the case of Kamleshwari Bai vs.Peeluram Latkhor Sahu reported in AIR 2010 Chhattisgarh 16 in support of his contention that mere filing of a criminal complaint does not amount to cruelty. We also do not dispute such proposition but if such complaint is filed without any basis whatsoever simply on the basis of suspicion and at least no prima facie basis has been shown for lodging of such false complaint in spite of having sufficient proof, the Court is entitled to hold that there was no sufficient basis for making baseless allegation, which we propose to do in the present case.
31. Mr Joshi next relied upon the decision of Calcutta High Court in the case of Smt. Sabita Chowdhury vs. Smt. Dulali Mondal Chowdhury reported in AIR 2006 Calcutta 318 where the allegation of the husband was that the wife was not performing household duty and was insulting the petitioner and his mother. In the said case, admittedly the wife was a working lady and had hectic school duty. In such circumstances, according to the Division Bench of the Calcutta High Court, the testimony of picking up quarrel by her was not such as to exceed limit of normal behavioural pattern between married couple and thus, the ground of cruelty cannot be founded on the conduct of the spouse which can be said to be “reaction to one’s own action”.
32. In our view, in the facts of the present case where the wife had the habit of making baseless allegations against the moral character of the husband which has been found to be without any basis, the said decision cannot have any application.
33. Mr Joshi also relied upon the decision of the Supreme Court in the case of Naveen Kohli vs. Neelu Kohli reported in AIR 2006 SC 1675 in support of his contention that in order to grant a decree for divorce on the ground of cruelty, conduct complained of should be grave and weighty and should not be ordinary wear and tear of married life and conduct should be such that no reasonable person would tolerate it. In the case before us, if we apply the said principle, in our view, the cruelty has been definitely proved. If a wife goes on making complaint of illicit relation with various ladies including her own friend without giving details in spite of having proof and even goes to the criminal court for making such allegation in her complaint under Section 498A of the Indian Penal Code being conscious that she was making allegation of an offence which is cognizable one and non-compoundable, it is not possible for any husband to tolerate such act on the part of the wife. Thus, the said decision rather supports the husband in the present case.
34. Mr Joshi lastly relied upon two decisions of the Supreme Court in support of his contention that in the case before us cruelty has been condoned. Those are the decisions of Supreme Court in the case of Dr. N.G. Dastane vs. Mrs. S. Dastane reported in AIR 1975 SC 1534 and in the case of R. Balasubramanian vs. Smt. Vijayalakshmi Balasubramanian reported in AIR 1999 SC 3070. In those cases, it has been held that even if there is cruelty on the part of one of the spouses if the other spouse with full knowledge of such cruelty cohabits as husband and wife, such fact amounts to condonation of cruelty.
35. In the case before us, we have already pointed out that the husband specifically pleaded and stated in his evidence that although they were staying in the same house yet they had no physical relationship of husband and wife from the year 2001. The wife either in her pleading or in her evidence has not disputed such allegation and it is not her defence that they used to stay as husband and wife even after levelling her allegation in connection with Rupa. In the cross-examination of the husband, merely suggestion has been given that such allegation of living separately since the year 2001 was not true which the husband denied.
36. In our opinion, in the absence of any denial in the pleading of such allegation and in the absence of any denial in her deposition, such allegation must be held to be admitted. It is now well settled that in the absence of denial in the pleading of any allegation of fact and in the absence of evidence given controverting the fact, mere suggestion in cross-examination to the party making allegation is of no assistance in disproving such allegation.
37. In this connection, we may profitably refer to the following observations of a Division Bench of this Court in the case of SHRI KHIMJI KURJIBHAI vs. THE STATE OF GUJARAT reported in 1982 GLH 977 regarding the effect of only giving suggestion in cross-examination to the opponent without giving any evidence in support of any denial:
“Suggestions in cross-examination are no evidence. This proposition of law is good both in the case of the prosecution and the defence. Mere hurling of some suggestions, which are denied, can hardly take the place of proof or evidence. The law of evidence is alike both for the prosecution and for the defence. If the accused wants to establish a certain fact, he has to lead evidence on that score. Such suspicions cannot have any place in the realm of appreciation of evidence. A suggestion denied by a witness remains only a suggestion and has no evidentiary value at all.”
38. There is also no dispute that by taking aid of the doctrine of condonation, although one can take the defence that the cruelty has been condoned, the law is also equally settled that any further act of cruelty shall revive the earlier cruelty since condoned. In the case before us, the wife from the very beginning had unnecessary suspicion about the illicit connections of the husband with other ladies and she made such allegations to various persons openly. Even if such act of cruelty inflicted prior to the year 2001 was condoned, subsequent acts on the part of the wife in making allegations of illicit connections against the husband with Rupa, her own friend, and subsequent filing of criminal proceeding under Section 498A of the Indian Penal Code on the selfsame allegation, has definitely revived the earlier cruelty even if it was condoned.
39. We thus find that the decisions cited by Mr Joshi do not support his client.
40. On consideration of the entire materials on record, we are thus convinced that the wife after the marriage all along deprived the husband of her company without any just reason. She subsequently started making allegations of illicit affairs with various ladies and ultimately, even went to the extent of lodging two criminal complaints, one of which has already been dismissed for the absence of the complainant and the other is still pending making selfsame allegation and such act of reckless allegation definitely amounts to cruelty even if we ignore the other allegation of cruelty towards her mother-in-law. The wife has also poisoned the mind of the only child against the father by making such baseless allegations, as a result, a feeling of hatred has developed in the mind of the child towards the father as it appears from the evidence on record. Thus, it is a fit case where the marriage of the parties should be dissolved by a decree of divorce.
41. We, accordingly, pass a decree for divorce on the ground of cruelty, which has been proved beyond reasonable doubt. The judgment and decree passed by the learned trial Judge is thus set aside. In the facts and circumstances of the case, there would be no order as to costs.
42. In view of the aforesaid order passed in the First Appeal, the Civil Applications do not survive and stand disposed of accordingly.
[BHASKAR BHATTACHARYA, ACTING C.J.] mathew [J.B.PARDIWALA. J.] FURTHER ORDER:
After the above order is passed, Mr. Mihir Joshi, learned Senior Advocate appearing with Mr. Dipen Desai, learned advocate for the respondent-wife prays for stay of the operation of this order.
In view of what has been stated above, we do not find any reason to stay our order. We, however, restrain the appellant- husband from contracting further marriage for a period of two months from today to enable the respondent-wife to prefer an appeal before the higher forum against this order.
[BHASKAR BHATTACHARYA, ACTING C.J.] mathew [J.B.PARDIWALA. J.]