Mr. Sameer Arjun Waghmare v. Mrs. Sunita Sameer Waghmare

Judgment

(Sharmila U. Deshmukh, J.): 1.Both the Family Court Appeals arises out of the commonjudgment and decree dated 7th April, 2014 passed by Family Court, Mumbai in Petition No.A-2722 of 2009 and Petition No.C-11 of 2011.By the impugned common judgment and decree, the Family Courtdismissed the Petition No.A-2722 of 2009 filed by the Appellanthusband seeking dissolution of marriage and allowed the petitionNo.C-11 of 2011, filed by the Respondent wife seeking maintenance. The Appeals have been preferred by the Appellant husband. Both theAppeals were heard together and is being decided by this commonjudgment. The Appellant husband is referred to as Petitioner and theRespondent wife is referred to as Respondent.2.The marriage between the parties has been solemnizedon 24th January, 2007 according to Hindu Vedic Rites and there is noissue born of the wedlock. Petition No.A-2722 of 2009 was institutedby the petitioner-husband Sameer Waghmare seeking dissolution ofmarriage under the provisions of Section 13 (1)(i-a)(i-b) of the Hindu

3/47fca176-2014+f.docMarriage Act, 1955. Petition No C-11 of 2011 was instituted by theRespondent wife under the provisions of Section 18 (2)(a)(b) of theHindu Adoption and Maintenance Act, 1956 seeking monthlymaintenance of Rs.30,000/-, residence and litigation costs. PLEADINGS:3.The case of the Petitioner in Petition No.A-2722 of 2009can be briefly summarised as under: (a)Within few months of the marriage, disputes arosebetween the parties and all attempts for reconciliationbetween the parties failed. (b)As the honeymoon was delayed till February-2007 due tothe Petitioner’s educational course, the Respondent wasupset during the honeymoon and quarreled on pettymatters.(c) Respondent was aware that she had to live in a jointfamily, however, the Respondent started complaining andwanted to stay separately.(d)Respondent was talking till late night on mobile andwould not divulge with whom she was talking. (e)If the Petitioner did not permit the Respondent to visit her 4/47fca176-2014+f.docparents’ house, she used to become angry with thePetitioner. (f)Respondent did not respect the Petitioner’s parents anddid not look after them. (g)On 21st October, 2008, the Respondent had picked upquarrel with the Petitioner and his parents, and after thePetitioner left for his office, the Respondent quarrelledwith his parents and abused them and took her clothesand ornaments and left the matrimonial house. Thereafter, the Petitioner’s parents removed him from thematrimonial house and he is residing in the office. (h)Respondent had flatly refused to come back to thematrimonial house when the parents of the Petitioner andhis relatives tried to reconcile the matter. Subsequently, legal notice was sent to the Respondent on 14thNovember, 2009 seeking divorce by mutual consent, however, the same was denied by reply notice.4.During the pendency of the proceedings, the pleadingsbefore the Family Court came to be amended to incorporate thesubsequent event of lodgment of criminal complaint by theRespondent with Borivali Police Station on 24th September, 2013leading to registration of FIR No.486 of 2013 on 22nd October, 2013for the offences under Sections 498-A, 406, 341, 323, 504, 506 Part-II 5/47fca176-2014+f.docread with 34 of the Indian Penal Code, 1860 against the Petitionerand his parents. Anticipatory Bail Application No.500 of 2013 wasfiled before the Sessions Court and interim bail was granted. It waspleaded that filing of the criminal case against the Petitioner and hisparents have lowered the reputation before the public at large andthe allegations made which are contrary to the facts are baseless andas such amounts to cruelty. There was no written statement filed bythe Respondent to the amended portion of the petition. 5. In the written statement, the case of the Respondent wasof denial and counter allegations briefly stated is as under:(a)Petitioner wants to divorce the respondent so that thePetitioner could remarry a Muslim-girl with whom thePetitioner has an illicit relationship, as few days after themarriage, the Petitioner’s mother told the Respondent todivorce the Petitioner as the Petitioner is having theaffair with the Muslim-girl. When she confronted thePetitioner about this the Petitioner started quarreling andabused her.(b)During the honeymoon, the Petitioner was always busyon the mobile phone and was not discussing freely withthe Respondent. 6/47fca176-2014+f.doc(c)For two to three months, they were living a normalmarried life and thereafter there restrictions imposedupon the Respondent. The Petitioner become verypossessive about her and did not permit anybody talkingto her. Petitioner was extremely short tempered andwould loose control if the Respondent disagreed withhim. Petitioner is in habit of drinking and used to comelate at night and used to quarrel with her in most filthylanguage. The mother of the Petitioner used to abuse theRespondent by saying that she and her parents arebeggars.(d)Her entire matrimonial life was nightmarish experiencefor her and she never experienced such poor treatmentin her life nor had she met such mean-minded andmiserable persons as the Petitioner and his parents. Shewas treated like a servant and while the Petitioner andhis family enjoyed watching TV, the Respondent used todo all the house-work. The Petitioner and his familymembers intentionally removed the maid servant fromthe house which compelled the Respondent to do all thehouse work. She was treated with inhuman cruelty likeslave.(e)In the month of March 2009, the Petitioner and hisparents hatched a plan to remove the Respondent fromthe matrimonial house and accordingly, the petitioner's 7/47fca176-2014+f.docparents went to Solapur and the Petitioner was alonewith the Respondent in the matrimonial house. On 7thMarch, 2009, the Petitioner picked-up a quarrel with theRespondent and asked her to leave matrimonial homeimmediately and forcibly took the respondent with himand left her at her parents’ place and since then i.e. from7th March, 2009 the Respondent is staying with herparents.(f)On 15th April, 2009, the mother of the Petitioner visitedthe respondent’s parents house and created a big sceneby quarreling and abusing in most filthy language andasked the respondent to divorce the Petitioner and thatthe petitioner and his mother offered the RespondentRs.2 Crore and flat and good maintenance in exchangeof divorce. 6.In Petition No.C-11 of 2011, the Respondent hasreiterated the contents of the written statement. It was contendedthat on 7th March, 2009, the Petitioner had forcibly removed therespondent from the matrimonial house and dropped her to parents’place by his own car. It was pleaded that the respondent-wife hasbeen treated with tremendous mental cruelty and that the Petitioneris not ready to maintain the Respondent. As regards the income of thePetitioner, the case of the Respondent was that the Petitioner is a 8/47fca176-2014+f.docqualified engineer and owner of M/s. Sameer Construction and apartner with his brother Sunil in the firm named M/s.SunilConstruction. The Petitioner and his parents are owners of SulochanaNursing Home and own hotel named Sairaj Resorts at Solapur andagricultural land. The Petitioner is a trustee in Om Sai Super SpecialtyHospital situated at Borivali, Mumbai. The Respondent contendedthat the income of the Petitioner and his family is about Rs.5,00,000/-per month, apart from the other income from the landed properties inSolapur whereas the Respondent is not employed and has no sourceof income to maintain herself.7.In the written statement filed in Petition No.C-11 of 2011,after denying the contentions of the Respondent, the case of thePetitioner was that the Respondent is educated and self-employed andhad been working prior to the marriage and is presently earningRs.3,000/- p.m. 8.The Petitioner claimed to be working with M/s. SameerConstruction drawing monthly salary of Rs 10,000/. It was contendedhtat the business of M/s. Sunil Construction and Sairaj Resortsbelongs to father of the Petitioner, Arjun Anant Waghmare, that M/s. 9/47fca176-2014+f.docSameer Construction is a partnership firm and the partners areKishor Kantilal Maniyar, Naina Kishor Maniyar and Arjun AnantWaghmare. It was pleaded that the Petitioner is non functionaldirector of Sulochana Nursing Home and is not paid anyremuneration.EVIDENCE:9.The Petitioner examined himself and the Respondent hasexamined herself. Alongwith oral evidence both parties haveproduced certain documentary evidence. 10.The Petitioner adduced oral evidence and documentaryevidence produced on record was proof of marriage, the complaintsaddressed to the police station on 7th July, 2009 and 5th November,2009, the salary certificate issued by the firm M/s. SameerConstruction dated 5th January, 2011, the certificate of his CharteredAccountant, copy of the legal notice dated 14th November, 2009addressed by the Petitioner to his Advocate and the response dated 4thDecember, 2009.11. In the cross-examination, the Petitioner has given various 10/47fca176-2014+f.docadmissions as regards the financial capacity of the Petitioner and hisfamily members. It was admitted that the entire marriage expenseswere born by his family; that since 2004 he was working withM/s.Sameer Construction Company in which his father held 20%stake in the company and other 80% share were held by otherpartners; that the partnership firm was constituted in 1997 by hisfather and prior thereto his father was may be dealing with in realestate business. He has further admitted that Sulochana NursingHome is the family business of his family and that Om Sai SuperSpecialty Hospital belongs to his father. He has further admitted thathis family owns the resort by name Sairaj Resorts, which belongs tohis father. He has admitted that his father had allotted two separateaccommodation for his two married brothers.12. In respect of his own income, he admitted that he isdiploma holder in civil engineering; that he is having investment inLIC; that he had visited Thailand in June, 2012; that he contested theBMC elections in February-2012.; that he is owner of Vento Car whichhas been gifted by his father and that the car loan is in the name ofhis father and his father is paying the EMIs. He has also admitted thathe is director of Om Sai Super Specialty Hospital and Sulochana 11/47fca176-2014+f.docNursing Home. He has admitted that he contested BMC elections andhad spent an amount more than 3 lakhs which he has raised byborrowing from his father and balance amount from the third partiesin respect of which an account of his expenditure was submittedduring election campaign.13.In the cross-examination, he has admitted that he doesnot have any proof to show that he is residing in the office of hisfather since 2009 to 2012; that no complaint has been lodged by thepartners of partnership firm other than his father in the police andthat no eviction proceedings have been initiated by his father. He hasadmitted that he consumes liquor but has denied the suggestion thathe was in the habit of returning home after consuming the liquor. 14.In the cross-examination, the Petitioner has deposed thatthe Respondent used to insult the Petitioner in front of his parentsand used to demand separate accommodation. Pertinently in the crossexamination, the suggestion given was that the Respondent used toharass the Petitioner on petty issue like his mother had asked thehousemaid to come late, that like his brother they should start livingaway from the parents and insulting his parents by giving back 12/47fca176-2014+f.docanswers, which has been denied by the Petitioner.15. He has deposed in the cross-examination that after 2and ½ months, the Respondent started demanding separate residenceand started quarreling on that point. The Petitioner has admitted thathe has not given details of the date and time of quarrel and instancesof cruelty alleged to have been inflicted by the Respondent on himand his parents. The suggestion given was that the Petitioner haddriven the Respondent out of the house on 7th March, 2009, that hisparents were not at home and that the Petitioner took the Respondentin his own care and left her to her maternal home.16.The Respondent filed her affidavit in lieu of evidence andhas reproduced the contents of the written statement. TheRespondent produced the documentary evidence viz. the copyphotograph of marriage, copy of invitation card, notice to Applicant-husband through advocate, copy of complaint letter to Police Station, Borivali, dated 7th July, 2009, copy of letter to Police Station, Borivalidated 5th November, 2009, copy of complaint by father to policestation dated 27th July, 2009, copy of notice issued dated 14thNovember, 2009, brochure of Sameer Constructions, invitation card of 13/47fca176-2014+f.docHotel Sairaj family resort at Solapur which was owned by theApplicant-husband, scrutiny of nomination of the Applicant-husbandin BMC election 2012, payment receipt of BMC dated 31st January,2012 paid by Applicant-husband, letter of nomination of electioncommission, affidavit of Applicant-husband in BMC election, paymentreceipt dated 25th January, 2012, nomination for dated 22nd January,2012.17.During her cross-examination, she has admitted that herhusband was not beating her or abusing her. She has further admittedthat they had one maid servant in the matrimonial house. She hasfurther admitted that she is not aware as to whether her husband is apartner in Sunil Construction and hotel Sairaj Resorts. She has furtheradmitted that she is not aware if her husband is getting anyremuneration from Sulochana Nursing Home and Om Sai SuperSpecialty Hospital. During her cross-examination, the Respondent hasstated that her husband is getting salary Rs.40,000/- p.m. fromSameer Construction. She has admitted that initially her husband wasworking as a site supervisor in Sameer Construction and now he is apartner in the firm. 14/47fca176-2014+f.doc18. As regards her case that the Petitioner and his parentshad subjected her to cruelty, in her cross-examination, she has statedthat he used to return home at late night and used to shout at him ifshe asked him to take her out. She has stated that during thehoneymoon, the Petitioner used to talk on her mobile and that shedoubted that he was talking with her special friend. She has statedthat she was scared of her husband because he used to shout at her.19. During her cross-examination, she has admitted that shedoes not know the name of Muslim-girl, with whom the Petitioner hasaffair and that she had never seen her and does not know where shelives. She has stated that he used to come home in drunken conditionand had an affair with the girl. In response to specific question asregards the allegation of abuse by the Petitioner, the Respondentstated that he was not abusing her but telling her that she is notintelligent. As regards the mental and physical cruelty she has statedthat the Petitioner and his family used to force her to do house workand used to ask her as to why she is not leaving matrimonial house. She has stated that the petitioner used to create a scene to insult herin the eyes of people and used to abuse her and her parents in filthylanguage by saying that she was insane. She has further admitted that 15/47fca176-2014+f.docshe has not filed any police complaint against the Petitioner fordriving her out of the house and quarreling with her on 7th March,2009 and that there is no petition filed for restitution of conjugalrights. She further admitted that her reply notice does not bear thefacts that the Petitioner and her mother offered her a sum of Rs.2crore in exchange of divorce. During her cross-examination, she hasadmitted that the car owned by her husband was gifted by her father-in-law. 20.An additional affidavit of evidence came to be filed by thePetitioner, wherein he has deposed as regards the filing of complainton 24th September, 2013, and the registration of FIR under thevarious offences of the IPC. He has further deposed that theallegations made in the FIR is that in July, 2013, the Petitioner andhis family had caused mental agony and hardship to the Respondentand had called upon the Respondent not to reside in the matrimonialhouse. He has further deposed that the allegation of the FIR that hewas having illicit relationship with Yasmin Sayyed.21.In the cross-examination, the Petitioner has stated that hedoes not know Yasmin Sayyed. He has further denied the suggestion 16/47fca176-2014+f.docthat Yasmin Sayyed worked with Sulochana Nursing Home. He hasadmitted that he had falsely stated that the High Court had asked thepolice not file chargesheet and he has admitted that the High Courthad directed the police to continue with the investigation.FINDINGS OF TRIAL COURT: 22. The trial Court framed the following issues: (i)In Petition No.A-2722/2009, as under:IssuesFindings1.Does the Petitioner prove that theRespondent has after the solemnizationof marriage, treated the Petitioner withcruelty?No2.Does the Petitioner prove that theRespondent has deserted the Petitionerfor a continuous period of more thantwo years immediately preceding thepresentation of the Petition?No.3.Is the Petitioner entitled to a decree ofdissolution of Marriage, as claimed?No.4.What order and decree?Petition standsdismissed. (ii)In Petition No.C-11/2011, as under:IssuesFindings1.Does the Petitioner prove that theRespondent has deserted her withoutYes 17/47fca176-2014+f.docreasonable cause and without herconsent or he has willfully neglectedher?2.Whether the petitioner is entitled formaintenance as claimed?Rs.30,000/-Per month3.Whether the petitioner is entitled forseparate accommodation as claimedby her?Yes. As perFinal order4.Whether the Petitioner is entitled forlitigation Expenses?Yes. As per theFinal order5.What order and decree?PetitionstandsDecreed.23.The trial Court held that the grounds of divorce are eithervague or pleaded without any specifications; that there was no directevidence as the Petitioner has not examined his parents and that nota single word of insult is properly proved; that except the allegedincident dated 22nd October, 2008, there is no other incident whichcan be said to be grave or weighty, and the admission that he has notgiven specific details of the quarrels and instances of cruelty allegedto have been inflicted by the Respondent. The trial Court held thatthe testimony of the Petitioner is not creditworthy as he has come upwith false theory to declare incorrect residence address and that hehad falsely stated that the High Court had asked to police not to file 18/47fca176-2014+f.docchargesheet, when in fact the High Court directed the police tocontinue with the investigation. The trial Court held that thePetitioner’s father had created false record to show that he is notliving in matrimonial house and in view of Section 23 (1) of theHindu Marriage Act, held that a person taking disadvantage of hisown fault cannot take divorce. As regards the lodging of thecomplaint and the FIR by the Respondent, the trial Court held that asthe trial has not yet begun making any comment on the truthfulnessof the allegation of the complaint would be interfering with the trialof the Court. 24. The trial Court held that the suggestion given to theRespondent about involvement with her friend Patil in absence ofpleadings has subjected the Respondent to cruelty. The trial Courtheld in face of admission of husband that he consumed liquor thatcoming home late at night in drunken condition is mental agony towife. The trial Court considered that the Petitioner belongs to upperstrata of society and shouting at wife and calling her insane amountsto cruelty. 25.As regards the issue of maintenance the trial Court 19/47fca176-2014+f.docobserved that the Petitioner has admitted that he worked withSameer Construction since 2002 and disbelieved that the Petitioner isnot a partner in the partnership firm. The Trial Court considered theadmissions of the Petitioner about his visit to Thailand in June-2012;he is owner of Vento Car; that the Petitioner has contested the BMCelections in which he has spent sum of Rs.3 lakhs and thedocumentary evidence produced by the Respondent and believed theversion of the Respondent wife that the Petitioner and his familyearning Rs.5,00,000/- p.m. and the Petitioner is living with hisparents and doing family business..26.The Trial Court by the common judgment and orderdated 7th April, 2014 dismissed the divorce petition of the Petitionerand decreed the maintenance petition. The operative order dated 7thApril, 2014, reads as under:“1.Petitioner A-2722/2009 stands allowed with costs.2.Petition C-11/2011 for maintenance standsdecreed with costs.3.The husband-Sameer Waghmare is directed to paypermanent alimony of Rs.30,000/- per month to wife-Sunita Sameer Waghmare u/sec. 18 of the HinduAdoption and Maintenance Act, 1956. 20/47fca176-2014+f.doc4.The order shall take effect from the date ofPetition C-11/2011 i.e. 24.1.2011.5.The husband-Sameer Waghmare is directed toprovide 1BHK flat to wife-Sunita Sameer Waghmare inthe vicinity where her parental home is situated. He shallprovide such accommodation within 60 days and onfailure to do so he shall pay amount of Rs.30,000/- permonth to wife for availing such accommodation.6.The husband is directed to pay litigation cost ofRs.20,000/- to wife.7.Decree be drawn up accordingly to bothProceedings.”27. During the pendency of the appeal proceedings, thepetition was amended to bring on record the subsequent events thatin the writ petition filed under Section 482 of the Cr.P.C. seekingquashing of the FIR alleged by the wife, liberty was granted to theApplicant-husband and his parents to file discharge application beforethe trial Court, which came to be dismissed as against which theCriminal Revision Application Nos.206 of 2019 and 207 of 2019 werefiled which came to be allowed.SUBMISSIONS:28.Heard Mr. Laxmikant Shukla, learned counsel for the 21/47fca176-2014+f.docAppellant and Mr. Shreesh Oak, learned counsel for the Respondent.29.Mr. Shukla, learned counsel for the Appellant submits thematrimonial cohabitation lasted for about two years. He wouldfurther submit the wife left the matrimonial house on 22nd August,2008 and as per the wife it is on 7th March, 2009. He has confined hissubmissions only to the aspect of cruelty and would submit thatconsidering that the criminal revision application is allowed quashingthe FIR lodged by the wife, it is evident that the Respondent haslevelled false allegations against the Petitioner and his parents whichentitles the Petitioner to divorce on the ground of cruelty. He wouldurge that the Respondent has failed to substantiate the allegations ofillicit relationship. He would draw the attention of this Court to theevidence to indicate that there was no cross-examination of thePetitioner as regards the alleged extra-marital affair. He would furthersubmit that all this was circulated at the petitioner’s native placewhich has resulted in damaging his reputation and due to the lodgingof FIR he has withdrawn from the elections. He would further submitthat the admitted position is that atleast since 2009, the Respondentis not residing with the Petitioner and till the year 2013 there was nopolice complaint filed by the Respondent. 22/47fca176-2014+f.doc30.As regards the maintenance proceedings are concerned, which is subject matter of challenge of Family Court Appeal No.177 of2014, he would contend that the Respondent is a graduate andsubmit that the company is run by his family. He would furthersubmit that as regards Om Sai Super Specialty Hospital, the same wasearlier run by is elder brother and is not functioning. By invitingattention of this Court to the partnership deed, he would contend thatSameer Construction is a partnership business in which his father is apartner holding 20% share. 31.Per contra, Mr. Oak, learned counsel for the Respondentsubmits that the respondent-wife was not a party to the proceedingsbefore Sessions Court and there was no notice to the Respondent atthe time of hearing of the revision application. He would furthersubmit that Respondent became aware of the order of the sessionscourt only in the year 2022, when the application for amendment wasfiled. He would further submit that it is the Petitioner who hassubjected the respondent-wife to cruelty and the instances cited in thePetition are are extremely vague and without any specific details. Hewould further submit that the Petitioner has failed to examine hisparents to prove the allegations of cruelty. As regards desertion the 23/47fca176-2014+f.doclearned counsel for the Respondent would contend that on 7th March,2009, she was thrown out and as such ground of desertion is notavailable to the Petitioner. He has taken this Court to the observationsof the trial Court as regards the conduct of the Petitioner in dealingwith the Respondent and would contend that the Petitioner has failedto prove cruelty on part of the Respondent. He would further contendthat the trial Court has come to a specific finding that the testimonyof the Petitioner is not creditworthy, as he has taken false stand andthe provision of Section 23 (i) of the Hindu Marriage Act, 1955, donot permit the petitioner to take advantage of his own fault. Asregards the question of maintenance, he would submit that the trialCourt on consideration of the documentary evidence has granted asum of Rs.30,000/-. He would further contend that an applicationwas moved for reduction of the maintenance and this Court haddirected a sum of Rs.20,000/- to be paid towards accommodation andRs.20,000/- to be paid towards maintenance, which was challengedin the Apex Court, that was however not successful.32.In rejoinder learned counsel appearing for the Petitionersubmits that the Respondent was present to oppose the dischargeapplication before the trial Court. He would further submit that the 24/47fca176-2014+f.docRespondent has not filed Petition for restitution.33.Considered the submissions and perused the papers andproceedings with the assistance of the learned counsel appearing forthe parties.ANALYSIS AND CONCLUSIONS:34. Mr. Shukla, learned counsel for Petitioner has confinedhis submissions to the aspect of cruelty and has not pressed theground of desertion. Before adverting further, it will be beneficial torefer to the provisions of Section 13 (i)(ia) of Hindu Marriage Act,1955 which reads thus: 35. In the case of Savitri Pandey vs. Prem Chandra Pandey,(2002) 2 SCC 73, the Apex Court construing the question of 'cruelty'as a ground of divorce under Section 13 (1)(ia) of the Act made thefollowing observations :“Treating the Petitioner with cruelty isa ground for divorce under Section 13(1)(i-a) of the Act. Cruelty has not been defined under the Act but in relationto matrimonial matters it is contemplated as a conduct ofsuch type which endangers the living of the petitioner withthe respondent. Cruelty consists of acts which aredangerous to life, limb or health. Cruelty for the purpose 25/47fca176-2014+f.docof the Act means where one spouse has so treated theother and manifested such feelings towards her or him asto have inflicted bodily injury, or to have causedreasonable apprehension of bodily injury, suffering or tohave injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causesmental suffering or fear to the matrimonial life of theother. "Cruelty", therefore, postulates a treatment of thepetitioner with such cruelty as to cause a reasonableapprehension in his or her mind that it would be harmfulor injurious for the petitioner to live with the otherparty. Cruelty, however, has to be distinguished from theordinary wear and tear of family life. It cannot be decidedon the basis of the sensitivity of the petitioner and has tobe adjudged on the basis of the course of conduct whichwould, in general, be dangerous for a spouse to live withthe other.” 36. Applying the law laid down by the Apex Court, theevidence on record will have to be analysed to consider whether thePetitioner has established such conduct on part of the Respondentwife which is something more than normal wear and tear ofmatrimonial life. The instances of cruelty on which the Petitionerseeks dissolution of marriage has been rightly summarized by theTrial Court as under:“i)that she was insulting him and his parents.ii)that she was talking clandestinely to some one on phone. 26/47fca176-2014+f.dociii)that she spoilt the mood during honeymoon.iv)That she quarreled with him on 22.10.2008 and returned to her parental home.”37.Considering the instances of cruelty cited by thePetitioner, in our view, the same cannot be said to be so grave andweighty so as to cause an apprehension in the mind of the Petitionerthat it will be harmful to reside with the Respondent. Despite thereofwe have proceeded to examine the evidence on record to ascertainproof of the incidents alleged. As regards the behaviour of theRespondent during the honeymoon, in the cross examination, thePetitioner has admitted that it was the joint decision of the parties togo on the honeymoon and they returned to Mumbai as per theschedule. That being so, the case of the Petitioner that during thehoneymoon the Respondent did not behave properly as thehoneymoon was delayed cannot be believed.38. The next instance is as regards demand of the Respondentfor separate residence. The Petitioner has deposed that theRespondent started demanding separate residence and behavedarrogantly and stated that she has no intention to continue themarital obligation. The demand to stay separately, in our opinion, by 27/47fca176-2014+f.docitself, will not amount to mental cruelty unless it is shown that thesaid demand had become a bone of contention between the partiesand have led to numerous fights leading to mental agony. At thisjuncture it needs to be noted that the Petitioner in his crossexamination has admitted that the Petitioner’s two married brothershad been given separate accommodation. Viewed from that aspect, itcannot be said that the demand if raised was so unreasonable as tocause mental cruelty. 39.The Petitioner has deposed generally about the conduct ofthe Respondent that she used to insult, humiliate and abuse thePetitioner and his parents without giving the date of occurrences orthe details of the incidents. As the Petitioner has failed to state thematerial particulars as to the alleged incidents, there is no sufficientevidence produced to substantiate the allegations. Pertinently, thecase of the Petitioner could have been corroborated by his parents, but the Petitioner has failed to examine his parents. The only incidentwhich can be said to be proved is the incident of 22nd October, 2008as in the cross examination of the Petitioner, no material admissionhas been elicited as regards this incident. 28/47fca176-2014+f.doc40. The question is whether upon consideration of theevidence on record, the Petitioner has made out a case of such crueltyas would entitle the Petitioner for dissolution of the marriage. If thecumulative effect of the instances of cruelty indicated above isconsidered, in our opinion, the conduct of the Respondent cannot beconstrued to constitute such cruelty as would entitle the Petitioner todecree of divorce. 41. Even if it is accepted that the aforesaid instances ofcruelty as deposed cannot be construed to be grave and weighty, there is another dimension to the present matter viz the filing of theFIR during the pendency of the Petition and the allegations made bythe Respondent in the written statement which in our opinion entitlesthe Petitioner to dissolution of marriage as indicated hereinafter. 42. In the written statement, the allegations of theRespondent can be summarised as under:(a)The Petitioner was extremely short tempered and used toloose control if she disagreed with him.(b)The Petitioner is having an illicit relationship with amuslim girl. 29/47fca176-2014+f.doc(c)The Petitioner is habituated to drinking and used to comelate at night and quarrel with her and abuse her in mostfilthy language.(d)The Petitioner and his parents removed the maid servantsand forced the Respondent to do all the housework.(e)The entire matrimonial life was nightmarish experiencefor her and she had never experienced such crueltreatment in her life nor had she met such mean mindedand miserable persons as the Petitioner and his parents.(f)The Petitioner was manhandling her and quarrelled oversmallest issue and threatened her and abused her. 43. Now if we consider the cross examination of theRespondent, she has admitted that she does not know the name ofMuslim-girl with whom the Petitioner has an affair and that she hadnever seen and does not know where she lives. In response to specificquestion as regards the abuse by the Petitioner, the Respondentadmitted that he was not abusing her but telling her that she is notintelligent. As regards the mental and physical cruelty she has statedthat the Petitioner and his family used to force her to do house workand used to ask her as to why she is not leaving matrimonial house. She has stated that the Petitioner abused her in filthy language by 30/47fca176-2014+f.doccalling her insane. 44. The admission of the Respondent that there was one maidservant in the matrimonial house renders false her allegation ofill-treatment and cruelty at the hands of the Petitioner and his parentsof removing all house-help and forcing her to do all the work hasbeen proved to be false. The Respondent had further deposed thatshe was abused and manhandled by the Petitioner, however in thecross examination she has admitted that the Petitioner was notbeating her or abusing her. She has further admitted that herallegation of abuse in filthy language was being called asunintelligent and insane and by utmost cruelty she means that heused to return home late in the night and used to shout at her even ifshe asked him to take her out. 45.In light of the vital admissions given in the crossexamination, the allegations of the Respondent terming ill treatment, abuse and mental and physical cruelty, going to the extent ofdescribing her matrimonial life as nightmarish and calling herhusband and his parents as mean minded and miserable persons wasclearly unsubstantiated. By no stretch of imagination, it can be said 31/47fca176-2014+f.docthat calling the Respondent that “rqyk vDdy ukgh] rq osMh vkgsl” amountsto abuse in filthy language or utmost cruelty is coming late at nightand shouting if asked for outing. The parties are Maharashtrians andirrespective of any strata of society to which the parties belong, theseare common utterances in Marathi language and cannot beconsidered as abuse in filthy language, unless the context in whichthe utterances were made demonstrate that the same was for thepurpose of humiliating and insulting the person. The Respondent hasnot given the details of the incidents during which such utteranceswere made and as such simply by mouthing these words, it cannot besaid that the Respondent was abused in filthy language. 46. Now we come to the grave and serious allegationslevelled by the Respondent as regards the illicit relationship of thePetitioner. In the cross examination she has admitted that she doesnot know the name of the Muslim girl or where she lives and that shehas never seen her. This admission has to viewed in the light of theFIR lodged by the Respondent. It needs to be noted that the evidenceof the Respondent concluded in the month of July, 2013. In themonth of October, 2013, the Respondent registered an FIR against thePetitioner and his family members for the alleged offences punishable 32/47fca176-2014+f.docunder Sections 498-A, 406, 341, 323, 504, 506 Part-II read with 34 ofthe IPC. The allegations in the FIR have been noted in some detail. Itis alleged that the Petitioner was having an illicit relationship withone Yasmin Sayyed and that in the cupboard the Respondent hadfound the photographs of the Petitioner with one lady and alsocertain letters in which the name of Yasmin Sayyed was mentioned. Same was alleged upon confrontation, the Petitioner abused, threatened and assaulted her. It is alleged that the Petitioner and hisparents abused the Respondent by calling her and family members asbeggars. It is further alleged that the Petitioner and his parents madedemands for money and flat from the Respondent’s parents and usedto send the Respondent forcibly to her parents’ house and if she didnot agree, they would abuse and assault her. It is alleged thatrespondent’s in-laws removed all the servants from the house andmade the Respondent to do all the household work. It is alleged thatthe Petitioner was constantly under the influence of liquor. 47.It is alleged that in the month of July-2013, therespondent’s in-laws told the Respondent to bring money from herparents for purchase of flat and upon the Respondent expressing theinability of her parents due to their financial condition, the Petitioner 33/47fca176-2014+f.docabused and assaulted and the Respondent and threw her out of thehouse with the assistance of her in-laws.48. The Petitions before the Family Court came to beamended with a specific case that by filing of the criminal caseagainst the Petitioner and his parents has lowered their reputationbefore the public at large and family members and by makingbaseless allegations the conduct amounts to cruelty which entitles thePetitioner for divorce. Pertinently after the petition was amended bythe Petitioner, there was no written statement filed to the amendedpetition.49.Now if the consider the allegations in the FIR in thebackground of the admissions given by the Respondent it can be seenthat it is alleged that the Petitioner was having affair with theMuslim-girl named Yasmin Sayyed, whereas in the cross-examination, Respondent has stated that she does not know the name of Muslim-girl with whom the Petitioner has an affair. Further before the FamilyCourt it is not the case of the Respondent that there was any demandfor dowry or abuse or assault in the month of July, 2013. In the FIR,the allegation is that in the month of July-2013, the Petitioner and his 34/47fca176-2014+f.docparents abused and assaulted her and demanded that the Respondentbring money from her parents and also demanded a flat and hadforcibly thrown her out of the house. In the written statement, thespecific contention of the Respondent is that on 7th March, 2009 therespondent had not driven out by the Petitioner and her in-laws. Considering the case put forward in the Family Court, it is crystalclear that the allegations made in the FIR were completely false andbaseless. After having led evidence and given vital admissions in thecross examination, the Respondent has gone ahead and after closureof her evidence in the month of July, 2013, lodged an FIR in themonth of October, 2013 and made false and baseless allegationsagainst the Petitioner and his parents. 50. The Trial Court did not find substance in the contentionof the Petitioner of false implication as the FIR alleges abuse andassault in the matrimonial house in 2013. The Trial Court held thatthe matter is subjudice before the criminal court and it is not knownwhether there is judgment of conviction. In our opinion, bare perusalof the case put forward in the matrimonial petitions and theallegations in the FIR makes it explicitly clear that the Respondenthas falsely implicated the Petitioner. Firstly, the FIR has been lodged 35/47fca176-2014+f.docin the month of October, 2013 when the evidence of the Respondentwas over in the month of July, 2013. Neither in the pleadings norduring the evidence there is any mention of the allegations whichfinds place in the FIR. Secondly, the FIR alleges illicit relationshipwith one Yasmeen Sayed whereas in the cross examination, theRespondent admits that she does not know the name of the muslimgirl. Thirdly, the FIR alleges abuse and assault on the ground ofdowry and being thrown out of the matrimonial house in September,2013 when in the matrimonial petition, it is the Respondent’s owncase that on 7th March, 2009, the Petitioner took the Respondent byhis car to her parent’s house and left her there and since then she isresiding with her parents. In the face of such contradictions the TrialCourt failed to appreciate that the Respondent has falsely implicatedthe Petitioner and made wild, reckless and baseless allegations. Thefact remains that the FIR has been quashed in the revision applicationpreferred by the Petitioner and his parents. 51. The Petitioner had amended the petition and pleaded thefalse implication as a ground of cruelty. He has deposed that the falsecomplaint has lowered the image and reputation of the Petitioner andhis parents in the society and has caused mental trauma to them. As 36/47fca176-2014+f.docthe issue involved is whether the allegations made in the writtenstatement by the respondent-wife would amount to cruelty, a usefulreference may be made to the decision of the Apex Court in the caseof V. Bhagwat vs. D. Bhagwat (Mrs) reported in (1994) 1 SCC 337.The Apex Court in the facts of that case was considering the questionas to whether the allegations made by the respondent-wife in herwritten statement constitute mental cruelty. The Apex Court afteranalysing the provisions of Section 13(i)(i-a) of the Hindu MarriageAct and after considering the various decisions have held inparagraph 20 thus:“it must be remembered that the wife was merelydefending herself against what are, according to her, totally unfounded allegations and aspersions on hercharacter. It was not necessary for her to go beyond thatand allege that the Petitioner is a mental patient, that heis not a normal person, that he requires psychologicaltreatment to restore his mental health, that he is sufferingfrom paranoid disorder and mental hallucinations– and tocrown it all, to allege that he and all the members of hisfamily are a bunch of lunatics. It is not as if these wordswere uttered in a fit of anger or under an emotionalstress. They were made in a formal pleading filed in theCourt and the questions to that effect were put by hercounsel, at her instructions, in the cross-examination.……Making such allegations in the pleadings and putting suchquestions to the husband while he is in the witness-box, is 37/47fca176-2014+f.docbound to cause him intense mental pain and anguishbesides affecting his career and professionalprospects………… These assertions cannot but constitutemental cruelty of such a nature that the petitioner, situated as he is and in the context of the several relevantcircumstances, cannot reasonably be asked to live withthe respondent thereafter. The husband in the position ofthe Petitioner herein would be justified in saying that, it isnot possible for him to live with the wife in view of thesaid allegations. …………..”52.In the case of Joydeep Majumdar Vs. Bharati JaiswalMajumdar reported in (2021) 3 SCC 742, the Apex Court wasconsidering a case of dissolution of marriage in which the FamilyCourt had given a finding that the respondent-wife had failed toestablish her allegations of adultery against the husband. The ApexCourt was considering the issue as to whether the conduct of theRespondent would fall within realm of mental cruelty and observed inthat case the allegations had been propensity to irreparably damagecharacter and reputation of Appellant and it would be difficult toexpect condonation of such conduct by affecting the party and heldthat the Appellant was entitled to dissolution of marriage. 53.Applying the ratio of the above decisions to the facts ofthe present case, it cannot be disputed the respondent-wife has made 38/47fca176-2014+f.docreckless and baseless allegations not only in the written statement buthas also filed a criminal complaint leading to registration of FIRagainst the Petitioner and his parents. Upon perusal of the evidence, the respondent-wife has failed to establish the allegations of adulteryand perusal of averments in the FIR would also indicate that theaverments made therein are completely contradictory to theallegations made in the written statement. As such, in our opinion, the irresponsible and false baseless allegations made by therespondent-wife and failing to justify the same by evidence by itselfwould amount to cruelty and would entitle to the Petitioner-husbandto dissolution of the marriage. 54. While considering the conduct of the Respondent incontext of “cruelty” as contemplated under the provisions of Section13 (1)(i-a) of the Hindu Marriage Act, 1955, the strata of the societyto which the Petitioner belongs will also be relevant. In the instantcase, the Petitioner belongs to an affluent family and the conduct ofthe Respondent alleging illicit relationship, dowry demands and filthyabuse and assault as against the Petitioner and his parents to theextent of describing them as mean minded and miserable persons, without being able to substantiate the allegations, has resulted in 39/47fca176-2014+f.doclowering the reputation of the Petitioner and his parents in the societyand constitutes cruelty within the meaning of Section 13 (i)(i-a) ofHindu Marriage Act, 1955. We do not think that this is a case, wherethe appellant could be denied relief by invoking Section 23(1)(a) ofthe Hindu Marriage Act. On the contrary, the allegations of illicitrelationship and the lodging of FIR making reckless and falseallegations has subjected the Petitioner to serious traumaticexperience which can safely be termed as 'cruelty' coming within thepurview of Section 13(1)(i-a) of the Hindu Marriage Act. Therefore, we hold that the appellant is entitled to the decree for dissolution ofmarriage under Section 13(1)(i-a) of the Hindu Marriage Act. 55. Now let us consider the issue of maintenance granted tothe Respondent. The challenge raised is considering the monthlysalary of Rs.10,000/-, the monthly maintenance Rs.30,000/- permonth is excessive and the direction to provide residence is liable tobe interfered with. The documentary evidence produced by theRespondent is the brochure of Sameer Construction, the invitationcard of Hotel Sairaj Family Resorts at Solapur, the scrutiny ofnomination of husband in the BMC erections in 2012, payment ofreceipt of BMC dated 31st December, 2012, letter of nomination of 40/47fca176-2014+f.docElection Commission, affidavit of Petitioner in BMC election, thepayment receipt dated 21st January, 2012, nomination dated 22ndJanuary, 2012. On the other hand the Petitioner has produced hissalary certificate issued by Sameer Construction and copy of ledgeraccount showing the salary of the Petitioner, the copy of thepartnership deed of Sameer Construction, the copy of undertakingfiled by the Petitioner on 13th March, 2006 and the copy of the letterissued by the Bharat K. Shah, Chartered Accountant and Auditor ofthe company.56.The Petitioner has come with a case of monthly salary ofRs.10,000/- from the firm of Sameer Construction and has producedcopy of the salary certificate on record and ledger account of thecompany. He has also produced on record the deed of partnershipfirm of Sameer Construction, which shows that his father having only20% share and there are other partners, who are not family members, who are having 80% shares. He has deposed that he has noimmovable property in his name and the business of Hotel Sairaj wascarried out by Arjun Anant Waghmare, who is the proprietor and thatthe business of Sunil Construction belongs to Arjun Anant Waghmare.He has deposed that he is a Director of Sulochana Nursing Home Pvt. 41/47fca176-2014+f.docLtd but he is not paid director-fees or remuneration. In support hehas produced the letters issued by the Chartered Accountant-Auditorof the company. He has deposed that he has no income except thesalary which is getting from Sameer Construction. He has furtherdeposed that he has no place to reside as he has left the house andreside in the office. He has deposed that the Respondent is havingher own income and as such is not entitled to maintenance.57.In cross examination, the Petitioner has admitted that heis director of Om Sai Super Specialty Hospital Pvt. Ltd. and SulochanaNursing Home Pvt. Ltd. He has admitted that at the time of filingnomination form of BMC elections, he was having Rs.3,15,824/- andwas owner of 10 tolas of gold worth of Rs.3,50,000/-. He hasadmitted that he does not have any proof to show that he wasresiding in the office of his father since 2009 to 2012. He hasadmitted that Sulochana Nursing Home Pvt. Ltd. is the familybusiness of his family and Om Sai Super Specialty Hospital belongs tohis father. He has admitted that his family owns a resort by name andstyle Sai Resorts which belongs to his father. He has admitted that hisfather has allotted two separate accommodation to his two marriedbrothers. 42/47fca176-2014+f.doc58.It is not disputed that the Petitioner holds a diploma incivil engineering and since the year 2004, he is working withM/s.Sameer Construction. The Petitioner claims that M/s.SameerConstruction is partnership business and his father holds 20% sharesin the partnership firm. A perusal of the partnership deed executed on11th September, 1997 discloses that the deed has been executedbetween the father of the Petitioner, who is stated to be carrying outproprietorship business under the name and style of SameerConstructions and Kishor Kantilal Maniyar and Naina Kishor Maniyaras parties on the second part and object of the partnership is limitedto implementation of Slum Rehabilitation Project. The Petitioner hasnot produced any material on record to demonstrate the position ofthe partnership firm in the year 2013 and seeks to rely on thepartnership deed of the year 1997 which was limited to the executionof the slum rehabilitation project.59. The Petitioner places reliance on the salary certificateissued by partner of M/s. Sameer Constructions which certifies thesalary of the Petitioner at Rs.10,000/- per month and the ledgeraccount of the firm. Admittedly the Petitioner’s father is a partner inM/s. Sameer Constructions and as such the possibility of obtaining 43/47fca176-2014+f.docthe certificate and ledger account only for the purpose of matrimonialdispute cannot be ruled out. The undertaking produced by thePetitioner is affirmed by the Petitioner’s father which refers to hebeing the owner of M/s. Sunil Constructions and there is reference toa slum rehabilitation project. 60. Admittedly the Petitioner is a qualified engineer and isadmittedly working in the construction business of the family apartfrom being director in Sulochana Nursing Home Pvt Ltd, which isowned by his family. Now let us consider the lifestyle of the Petitionerto ascertain whether the same is commensurate with the monthlysalary of Rs.10,000/- as pleaded. The Petitioner has admitted that hehas visited Thailand in June, 2012, that he owns a car and that hehad contested BMC elections. In our opinion, a person earning asalary of Rs.10,000/- per month is not financially capable of visitingThailand for fun or maintaining a car, and, similarly contesting BMCelection is beyond the reach of a person with such salary. In the crossexamination, the Petitioner has admitted that in the documentsfurnished for contesting election , it is mentioned that the Petitioner issubmitting income tax returns since 1998. It was therefore expectedof the Petitioner to produce the income tax returns which could have 44/47fca176-2014+f.docled to some inference in respect of his income, which the Petitionerhas failed to do. In such situation adverse inference can be drawnagainst the Respondent. 61. From the evidence which has come on record, it isevident that the Petitioner belongs to an affluent family engaged invarious businesses such as construction, hotel and nursing homes. Itis a matter of common knowledge that in family owned businesses, itis not necessary for the family members to be shown as part ofmanagement, and the fact remains that the income derived from thevarious businesses is for the benefit of all the family members. Thelifestyle enjoyed by the Petitioner justifies the inference that thePetitioner is the beneficiary of the family income. As such it cansafely be inferred that the Petitioner is part of the family ownedbusinesses and the aspect of maintenance will have to be consideredby taking into account the said fact. In case of salaried employees, the income of the husband can be ascertained from his salarycertificate. However, in the present case, what we have is family runbusiness in which the Petitioner is shown to be a mere employeedrawing a salary of Rs.10,000/-. As there is no direct substantiatedevidence on record regarding the monthly income of the Petitioner, 45/47fca176-2014+f.docthis Court will have to be guided by the attending circumstanceswhich demonstrate the affluent lifestyle of the Petitioner and hisfamily members to determine the issue of monthly maintenance.62.It is an admitted position that the Petitioner’s family hasventured into construction business, hotel business and nursinghome. It has also come on record that the Petitioner’s father hasprovided two separate accommodation to the married brothers of thePetitioner. The entire expenses of the marriage was borne by thePetitioner’s family. This gives a fair idea about the financial capabilityof the Petitioner and his family members and the version of theRespondent about the gross monthly income being Rs.5,00,000/-cannot be improbable. It can be safely assumed that the appellant iscapable of paying the monthly maintenance as granted. It cannot bedisputed that the wife is entitled to the same status as that of thehusband and we have already seen that the Petitioner belongs to anaffluent family, is Director in the nursing home, owns a car and hastravelled to foreign country as fun tour. On the other hand thePetitioner has failed to prove that the respondent-wife is having anysource of income. 46/47fca176-2014+f.doc63.Now, comes the issue of direction of the Family Court toprovide accommodation to the Respondent. The Petitioner hasadmitted that the petitioner’s father has provided flats to his twobrothers and it is also not disputed that the family is into constructionbusiness. The Respondent comes from a middle class family withlimited family income and that her father is a pensioner and theRespondent is living with her parents with her brothers. 64.Section 3(b) of The Hindu Adoptions and MaintenanceAct, 1956 defines maintenance to include in all cases, provision forfood, clothing, residence, education and medical attendance andtreatment. Considering the definition of maintenance, the claim ofthe Respondent for accommodation cannot be faulted. It is the duty ofthe Petitioner to meet the housing need of the Respondent. TheFamily Court, in our opinion, has rightly directed the Petitioner toprovide 1BHK flat to the Respondent in the vicinity of parental houseand upon failure to do so, to pay an amount of Rs.30,000/- p.m. foravailing such accommodation.65.Having regard to the discussion above, Family CourtAppeal No.176 of 2014 is allowed and the marriage between the 47/47fca176-2014+f.docparties solemnised on 24th January, 2007 stands dissolved by decreeof divorce under Section 13(1)(i-a) of Hindu Marriage Act, 1955.Family Court Appeal No.177 of 2014 challenging the maintenanceand the direction of providing for accommodation stands dismissed.66.In view of the disposal of the appeals, interim applicationdoes not survive and stands disposed of.(Sharmila U. Deshmukh, J.) (Nitin W. Sambre, J.)sa_mandawgad