1. This appeal under section 100 of the Code of Civil Procedure is at the instance of the original petitioner-husba who had f i l ed Hindu Marriage Peti t i on No. 100 of 2001 against the respondent herein-wife for divorce under section 13(1) o the Hindu Marriage Act (herein after referred to as “the Act” The case of the petitioner in his petition is that his marr with the respondent was solemnized on 16.12.1985. They have no issue out of the wedlock. It is alleged in the petit that immediately after marriage, the respondent had started harassing the petitioner and forcing the petitioner to li separately from his parents and brothers. The petitioner started residing separately in his house called “Navkar” an started his dispensary in the said house at the ground floor. is further case of the petitioner that the petitioner w physically assaulted by the respondent and the respondent was breaking and throwing various articles like watch, telephone, flower pot etc. The respondent has caused several physical injuries to the petitioner after 1988 till 1990. respondent had thrown water pot on the petitioner and injured the petitioner. In 1993, when there was a family settlement the petitioner constructed new house on the land came to his share and at that time, the petitioner and the respondent were residing in Vaibhav Apartment. During that period also, the respondent continued to give physical and mental cruelty to the petitioner. In the house called Navkar, which was newly made in 1993 after the family settlement, the things had gone so worse that in the month of March, 1999, the petitioner had to start residing at the second floor which comprised of on room and one toilet. Thus, for the last two and half years, t petitioner and the respondent have been staying separately and there is no cohabitation between them as husband and wife. It is the further case of the petitioner that on 15.7.99 respondent had made assault on the petitioner and the peti t i oner was required to take treatment from the Surgeon. The petitioner also alleged that the respondent made allegations relating to the character of the petitioner a damaged reputation of the family of the petitioner. The respondent for this purpose went to the relatives and friends the petitioner and create ill founded story relating to character of the petitioner. The respondent has just crossed a the limits and has been continuously giving physical and mental cruelty to the petitioner. It is also alleged that petitioner has satisfied the demand of the respondent to go t America though it was beyond the financial capacity of the petitioner but still there was no change in the behaviour of t respondent. The petitioner has been given threat by the respondent to involve the petitioner in false criminal cases a the petitioner has been time and again reporting such threat t the concerned Government officers. It is stated that in view such unbearable conduct of the respondent, the petitioner was left with no option but to file the petition for divorce.
2. The respondent wife resisted the petition by filing reply Exh. 24 The respondent denied all allegations made by the petitioner and further stated that the respondent is wel educated with degree of B. Sc. Graduate from Mumbai and she hails from a very rich family and her father was a businessman in Mumbai as builder. She has further stated that she had live her life with father with all comforts of life, details of have been provided in her written statement. She has stated that in ‘Navkar’ house, the petitioner has been running his ve large dispensary and he has got many compounder and nurses in the hospital and his hospital is well occupied with Televis AC, Computer etc. For the last three generations, family of t peti t i oner has been in the profession of Doctor and father the petitioner having good reputation, father of the responden had decided for marriage of the respondent with the petitioner However, the petitioner has not continued to act according to good culture and tradition of the Family of Doctor but had started to harass the respondent. The petitioner with the hel of the mother and sister, was giving all mental and physica torture to the respondent. It is further stated that t petitioner maintained illicit relationship with one Hiteshwari Babubhai Patni. When the respondent objected to such illicit relationship of the petitioner, mother of the petition defended the petitioner by saying that the person like Docto could have two wives but the respondent could not bear such illicit relationship of the petitioner and, therefore, object such relationship, therefore, the respondent was threatened that if the respondent would continue to object, she would be done away with. The respondent has then given further details about high-handed behaviour of the petitioner and his mother and sister and it is then stated that on 22.8.2001, t petitioner falsely informed the respondent that the father the respondent was not keeping well and the respondent was immediately called. On the basis of such falsehood, the respondent was sent to Mumbai and when the respondent was at Mumbai, the respondent was served with the notice of divorce petition by registered post. After receipt of such not when the respondent and her father came to Rajkot, they were not allowed to enter the house and, therefore, the father the respondent had to stay in Rishi Hotel and they went to th Court. It is further alleged that thereafter, on 22.12.2001, respondent made written complaint to the Commissioner of Police against the petitioner and his family members as well a against Hiteshwariben Babubhai Patni . I t was registered as CR No. 416 of 2001 on 22.12.2001 under section 498A, 502, 504,323 and 114 of the Indian Penal Code. The petitioner and other accused were arrested and then released on bail.
However, since the name of Hiteshwariben was deleted, the respondent had to file the special criminal application befo the High Court and before the High Court, the police tendered apology for deleting the name of Hiteshwariben and thereafter, Hiteshwariben was added in the complaint and was arrested and then released on bail. The respondent has then given further details about the continuance of cruel treatment fro the petitioner and further stated that since the petitioner w not providing maintenance, the respondent had to file special civil suit no. 96 of 2002 under section 18 and 23 of the Hin Adoption and Maintenance Act for permanent alimony from the petitioner wherein the petitioner was ordered to pay Rs.15000.00 per month by way of interim alimony by order dated 28.10.2002. Against that order, special civil applicati no. 4462 of 2002 was filed by the petitioner before the Hig Court wherein it was ordered that till the main petition decided, the petitioner should pay Rs.10,000.00 per month to the respondent. It is alleged by the respondent that it is petitioner who deserted the respondent and because of such desertion, the respondent has to stay separately from the petitioner and the petitioner has tried to defeat all rights o respondent to live in matrimonial home with the petitioner Respondent has also alleged that because of such behaviour on the part of the petitioner, the respondent has been residin separately for a period of about 17 years but she is still re and willing to join the matrimonial home forgetting all the pa behaviour of the petitioner.
3. On the basis of the above pleadings, the learned trial Judge framed the issues at Exh. 28 and two of the main issues are as under:
(1) Whether the petitioner proves that the respondent has acted with the respondent icnruel manner?
(2) Whether the respondent deserted the petitioner for a period of more than two years preceding the date of filing the suit?
4. On appreciation of the evidence, though the learned trial Judge found that it is not believable that the petitioner been keeping illicit relationship with Hiteshwariben, howeve the petitioner has failed to prove that the petitioner was met out physical and mental cruelty by the respondent. The learned trial Judge further found that it is the petitioner deserted the respondent and the petitioner has not proved that the petitioner had ever made attempts to take and keep the respondent in her matrimonial home with him. The learned trial Judge recorded that after the respondent went t the house of her father in Mumbai on 22.8.2001, the petitioner had filed the petition for divorce on 1.10.2001 which was i fact kept ready on 1.9.2001. The learned trial Judge thus came to the conclusion that in fact, the petition filed by petitioner could be said to be premature as the said petitio was filed only after the period of one month and eight days after separation of the petitioner from his wife. The learn trial Judge further observed that in the petition, address of respondent was shown to be of Mumbai and the petitioner took immediate action for service of the notice of peti t i on b registered post at Mumbai which showed that the petitioner wanted to take undue benefit of getting ex parte order from the Court on the possibility of the respondent not respondin to the notice of the Court.
5. On the above such findings and conclusions reached the learned trial Judge, the learned trial Judge ultimately dismis the petition filed by the petitioner for divorce vide judgm and decree dated 19.4.2008.
6. The appellant husband therefore challenged the said judgment and decree of the learned trial Judge by filin Regular Civil Appeal No.34 of 2008 under section 28 of the Ac read with Order 41, Rule (1) of the Code of Civil Procedure Th learned appellate Judge on appreciation of the evidence not only found that there was no cruelty from the respondent wife but also found that it was the petitioner who deserted th respondent and also recorded finding that the petitioner had illicit relationship with Hiteshwariben. On the above sa finding and conclusion, the learned appellate Judge ultimatel dismissed the appeal of the appellant by judgment and decree dated 19.7.2012. It is this judgment and decree which is under challenge in this appeal.
7. This Court by order dated 29.10.2012, issued notice to the other side and thereafter by order dated 29.11.2012, thi Court had called for R&P of the case from the Courts below.
8. I have heard the learned advocates for the parties.
Learned Advocate Shri DP Kinariwala lweiatrnedh advocate Shri RD Kinar iwala for the appel lant submit ted that the f inding and conclusions reached by the Courts below are based on misreading of evidence. The Courts below have materially erred in holding that the petitioner has failed to prove that was not meted out any cruel treatment by the respondent and also erred in holding that the petitioner had illicit relati with Hiteshwariben and the petitioner has, by his conduct, deserted the respondent wife. Mr. Kinariwala submitted that though the petitioner had led reliable and cogent evidence to prove the allegations made by the petitioner in the petitio still the Courts below have just believed the oral assertions the respondent wife and thereby committed serious error of dismissing the petition of the petitioner. Mr. Kinariwa submitted that so called illicit relationship with Hiteshwari was nothing but product of suspicious mind of the respondent wife and except the bare allegations, the respondent had faile to produce any evidence to establish illicit relationship of petitioner with Hiteshwariben. He submitted that simply because there was incident of the petitioner having occupied seat adjacent to the seat of Hiteshwariben in flight and simp because the petitioner was alleged to have helped Hiteshwariben for depositing the amount in her bank account could not be the grounds to establish illicit relationship of petitioner with Hiteshwariben. Mr. Kinariwala submitted that the petitioner is a Doctor by profession of good repute comin from highcultured and reputed family of Doctor and simply because the petitioner on rare occasions found to be with Hiteshwariben, same were never the grounds to believe that the petitioner had in fact illicit relationship with Hiteshwariben. Mr. Kinariwala further submitted that after 1993, more than sixteen years have passed and matrimonial ties between the part ies have been permanently and i r ret r i evably broken and in such circumstances, when the petitioner was made to face the allegations against his character and when the reputation of his family was also tarnished in the society, it was a case grant of divorce by the Courts below. Mr. Kinariwala submitted that the petitioner has never deserted the respondent and it was the respondent who because of her own unpredictable and rude behaviour started to reside separately from the petitione and started making allegations against the petitioner i respect of his character. Mr. Kinariwala lastly submitted th when the respondent had failed to prove allegations relating t illicit relationship of the petitioner with said Hiteshwar that itself would amount to cruelty from the respondent wife t the petitioner husband and no further proof is required and therefore, the Courts below ought to have allowed the petitio for divorce on such ground alone. He therefore submitted that considering the evidence on record and taking note of the long separation of more than twenty years, this court may entertain the appeal and quash and set aside the judgment and decree passed by the Courts below aancdcept and allow the divorce petition filed by the petitioner. In support of his arguments, learned advocate Mr. Kinariwala relied on the decision of Hon’ble the Supreme Court in the case of Vishwanath Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal reported in 2012 AIR SCW 4300.
9. As against the above submissions made by the learned advocate Mr. Kinariwala for the petitioner, Mr. Vajubhai D Thoria learned advocate appearing for the respondent wife submitted that the courts below have recorded correct finding of fact that the petitioner has failed to prove that respondent wife had meted cruel ty to the peti t i oner . He submitted that the courts below have also not believed story o the petitioner that the respondent had deserted him. He submitted that in fact it is the respondent who has been suffering a lot for the last many years because of the inhuma behaviour of the petitioner. He submitted that the respondent wife is coming from very reputed family and she had passed her life prior to her marriage in her parental house with comforts of life and it is not possible that she would physic beat the petitioner and mentally harass the petitioner. H submitted that though the respondent had lodged criminal complaint against all the accused including the petitioner an Hiteshwariben, the police deleted name of Hiteshwariben which led the respondent to file petition before this Cou whereupon the police had to arraign Hiteshwariben accused and arrest her. From the very beginning, the petitioner had used his influence being in the profession of Doctor and ha created such a picture that it was the respondent who was responsible for separation of the petitioner from his family. submitted that from the evidence, it is clearly established t the respondent was compelled to live separately from the petitioner as the petitioner had all throughout maltreated t respondent and had kept illicit relationship with sai Hiteshwariben which made the petitioner to give cruel treatment to the respondent and then to make it impossible for the respondent to stay with the petitioner in the matrimonia home. Such conduct on the part of the petitioner would amount to deserting the respondent by the petitioner. He further submitted that the Appellate Court below has on appreciation of evidence found that the respondent has supported her allegations relating to illicit relationship o peti t i oner with Hiteshwariben by leading concrete evidence before the trial court. He submitted that such being finding fact, act of the petitioner of keeping illicit relationship Hiteshwariben was itself enough to hold that it was the petitioner who meted out cruel treatment to the respondent and the respondent was, therefore, justified in living separat from the petitioner. He submitted that the respondent has in her evidence unequivocally stated that inspite of inhuman behaviour of the petitioner, the respondent is still ready to with the petitioner in the matrimonial home. He further pointe out that the courts below have also taken note of very important aspect of the matter to the effect that it was t petitioner who sent the respondent to Mumbai under the wrong pretext that the father of the respondent was ailing a Mumbai and then filed the petition for divorce against th respondent which was kept ready earlier and the address in the petition was also given that of Mumbai and he caused registered notice issued in such a petition to Mumbai. The onl intention of such attitude and act of the petitioner was to that the respondent might not come forward to defend the divorce petition. He further submitted that the judgment relie on by the learned advocate for the appellant would have no application in the facts of the present case as in the pres case, the courts below have found that the allegations agains the character of the petitioner have been established by the evidence adduced by the respondent wife. He, therefore, urged to dismiss the present appeal.
10. Having heard the learned advocates for the parties and having perused the judgment and decree passed by the Courts below with the record and proceedings called for by this Court i t appears that the peti t i on for divorce was f i l ed by t petitioner mainly on two grounds. One is about cruelty allege to have been meted by the respondent wife to the petitioner and the second ground is that the respondent wife deserted the petitioner husband. In the petition, the petitioner has a alleged that the respondent wife had made allegations against the character of the petitioner which had tarnished reputatio and image of the family of the petitioner in the society a such allegations of the respondent itself would amount to cruelty. The petition was opposed by the respondent wife no only by denying all allegations but also maintaining that t petitioner has been keeping illicit relationship wi Hiteshwariben.
The petitioner has given evidence in chief by filin affidavit at Exh. 30. The petitioner was cross-examined a length on behalf of the respondent wife. So far as the respondent-wife is concerned, she gave her evidence in chief by deposing before the Court. The respondent was also cross examined on behalf of the petitioner to a great extent.
11. The Courts below on appreciation of the evidence have refused to believe that the respondent had given any physical or mental cruelty to the petitioner. Learned Advocate for th appellant has failed to point out that the Courts below hav committed any error of misreading of evidence or of not considering relevant material in reaching to such conclusion.
12. There is no dispute about the fact that after few years o cohabitat ion, the part ies started l iv ing separate ly but in same premises. From the evidence, it also transpires that both the parties hails from rich and reputed families. The petitio is from a family of Doctor of good repute. The respondent has equally lived her life at her parental home with all comforts is unfortunate that the parties from such families could n stay together.
13. The petitioner has alleged in the petition that th respondent wife was making allegations against the petitioner about his illicit relationship with Hiteshwariben which caus lot of mental cruelty to the petitioner and damaged the reputation of the family of the petitioner. The responden however not only stuck to her allegations made in the written statement but also come out with reliable evidence to prove the relationship of the petitioner with Hiteshwariben. Learne trial Judge had cursorily looked at the evidence adduced by th respondent and came to the conclusion that it was not possible that the petitioner would enter into illicit relationship knowledge of the mother of the petitioner and, therefore, th story put up by the respondent that the petitioner used to bring Hiteshwariben in the house in presence of his mother and she allowed such things to happen could not be believed. However, the learned appellate Judge has scanned through and well appreciated the evidence in this regard. It is true it is very difficult to bring home such allegations by any di evidence. But when there is sufficient evidence available t connect the petitioner with Hiteshwariben, the Court has to evaluate such evidence keeping in mind the nature of dispute between the parties and to find out the truth in respect of su al legat ions. In my view, the learned appel late Judge has ver succinctly evaluated the evidence addused by the respondent and then came to the conclusion that the respondent wife has established that there was illicit relationship of the petit with Hiteshwariben. For this purpose, the learned appellate Judge has considered and discussed following evidence on record.
14. The petitioner in his evidence admitted that the petitioner used to go to the house of Hiteshwariben. He explained that he was going to the house of Hiteshwariben for the purpose of giving treatment to her father named Babulal. The respondent has produced on record two air tickets which were found from the possession of the petitioner. Said ticket were in respect of the journey of the petitioner wit Hiteshwariben to Dubai by air. Said tickets were for the sea adjoining to each other. The burden therefore was heavy on the petitioner to come out as to who booked two tickets, who paid the amounts for such tickets, how the payment was made, what was the mode of payment for the said tickets but the petitioner has not adduced any evidence in that regard. The petitioner had in fact gone to the extent of denying that did not know whether there was charge sheet filed against Hiteshwariben and whether she was arrested or not but on showing to him copy of FIR during the course of his cross examination, he confirmed that Hiteshwariben was arraigned as accused no.6 and subsequently deleted. There is one more evidence available on record. Exh. 109 is the bill fro Municipal Corporation for Rs.7023.00 for tax in respect of t house of the father of Hiteshwariben. Exh. 110 is the receip for the said amount issued by the Municipal Corporation. Exh.
117 is the copy of cheque No. 11284 dated 19.2.2002 issued by the petitioner from his account for the purpose of payment of the said amount. Exh. 118 and 119 are the supporting documentary evidence. And more important is that one witness Harhshchandra Chandrakantbhai Oza at Exh. 120 examined by the respondent in Special Civil Suit No. 96 of 2002 filed by the respondent for maintenance stated that the cheque issued for the aforesaid amount in favour of Rajkot Municipal Corporation was from the saving account of the petitioner. In my view, the above was the sufficient evidence establish the relationship of the petitioner with Hiteshwarib especially when the respondent had stated that the petitioner and Hiteshwariben were found moving together in hotels and were also found in compromising position. The petitioner has not explained as to under what circumstances, he made payment of corporation tax for the house of the father of Hiteshwariben. The petitioner has also not come out with the case that he never knew Hiteshwariben. When it was established by the evidence that he knew Hiteshwariben very well and he traveled with Hiteshwariben to Dubai and also made payment of the tax for the house of her father, it was fo the petitioner to explain his relationship with Hiteshwarib other than illicit relationship. In my view, the allegation m by the petitioner against the character of the petitioner w well supported by the evidence adduced by the respondent.
15. If we consider the matter keeping in mind the above evidence discussed by the learned appellate Judge and found by this Court, it appears that the illicit relationship o petitioner with Hiteshwariben was the real cause of mental cruelty to the respondent and no wife in the society would the l i ke to stay with such husband. The respondent was therefore justified in staying separately from the petitioner and it therefore the petitioner who could be said to have deserted the respondent.
16. In view of the above proved facts of the present case, judgment relied on by the learned advocate Mr. Kinariwala in the case of Vishwanath Sitaram Agrawal (supra) will not be applicable as in the case before Hon’ble the Supreme Court, the allegation of illicit relationship against the character husband was not supported by any evidence and remained only an allegation and that was considered to be cruelty. In t present case, as discussed above, the allegation by the respondent wife has been well supported by the evidence adduced by her.
17. Learned appellate Judge has also further recorded that the petitioner has not examined his mother, sister, his broth or any other person from the neighbourhood to support his say that the respondent wife had in fact caused physical or mental cruelty to the petitioner at any point of time. If the petit had failed to substantiate such allegation against the respondent and if the respondent wife has come out with reliable evidence in support of her allegation that the petito was keeping illicit relationship with Hiteshwariben, the Cour below cannot be said to have committed any error in not granting relief of divorce in his petition. Learned advocate the appellant has failed to point out as to how the finding fact recorded by the courts below on all the above aspects was perverse. In my view, no substantial question of law has arise for consideration of this court. Therefore, appeal is require be dismissed and the same is therefore dismissed.
anvyas (C.L.SONI, J.)