marriage cannot be allowed to be severed on basis of incidents which are ordinary wear and tear of...

8/12/2019 Marriage Cannot Be Allowed to Be Severed on Basis of Incidents Which Are Ordinary Wear and Tear of Matrimonial

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t 1 fca.74.13.sxwjdk IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 74 OF 2013IN

PETITION NO. A-419 OF 2011

Mrs. Sanjana Sandip Pednekar ]Age 29 years, Indian Inhabitant ]

Occ; Service, residing at R! ".# ]$%i&ding ".', $hi(ada )ransit *a!p]Shankarb%va +hadi Marg, ]$hi(ada, Pare&, M%!bai#-- -'2 ]..Appe&&ant

s.

Mr. Sandip Sitara! Pednekar ]

Occ/ Service, residing at R! ".#20]May%resh $%i&ding, ]1attara! ad Marg, 3a&ach(ki, ]M%!bai#-- -00 ]..Respndent

....Mr. Pankaj Shinde Advcate 4r the Appe&&antMr. 5e!ant +hadigankar Advcate 4r the Respndent

....

CORAM SMT.V.!.TAHILRAMANI AND SHRI. P.N.DESHMU!H" JJ.

RESERVED ON FEB." 13" 2014 PRONOUNCED

ON MARCH 3" 2014

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t 2 fca.74.13.sxwJUDGMENT #PER SMT. V.!.TAHILRAMANI" J.$' 5eard the &earned c%nse& 4r the appe&&ant and the

&earned c%nse& 4r the respndent. $y cnsent 4 the parties,

the appea& is taken %p 4r 4ina& hearing and dispsa&.

2 )he !arriage 4 the appe&&ant and the respndent

(as s&e!ni6ed n 7.'2.2--9 at M%!bai as per 5ind% edic

Rites. It is the case 4 the respndent that the appe&&ant (h

(as his (i4e, treated hi! (ith cr%e&ty, hence, the respndent

4i&ed a petitin i.e. Petitin ". A#'9 4 2-'' 4r divrce n the

gr%nd 4 cr%e&ty. )he said petitin ca!e t be a&&(ed by the

8a!i&y *%rt, M%!bai by j%dg!ent and rder dated

'9.'2.2-'2. $eing aggrieved by the said rder, this appea& has

been pre4erred.

0 It is an ad!itted 4act that the !arriage bet(een the

appe&&ant and the respndent tk p&ace n 7.'2.2--9 at

M%!bai as per the 5ind% edic Rites. )he case 4 the

appe&&ant is that the respndent (as the da%ghter 4 his

!aterna& %nc&e. )here (as &ve a44air bet(een bth 4 the!

and they had even shared physica& inti!acy prir t the

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t 3 fca.74.13.sxw!arriage.# In rder t sh( that the (i4e treated hi! (ith

cr%e&ty, the respndenth%sband re&ied n the 4&&(ing

instances/

i: A4ter the !arriage bth the appe&&ant and the

respndent (ent t Mahaba&esh(ar 4r hney!n 4r 4%r

days and three nights. Accrding t the h%sband, he !ade

atte!pts t cns%!!ate the !arriage b%t the (i4e re4%sed t

a&&( hi! t t%ch her bdy. 5ence, n c!ing back 4r!

hney!n, he c!p&ained t the 4ather 4 the (i4e ab%t this

4act.

ii: )he secnd incident re&ied %pn by the h%sband is

that n 2#th, 2th and 2


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t 4 fca.74.13.sxwthat he (as treated cr%e&&y by the (i4e, is that n 2.2.2-'- his(i4e ret%rned h!e 4r! 44ice at '-.-- p.!. )he respndent

tried t cnvince the (i4e t behave in a prper and d%ti4%&

!anner. )here%pn, she picked %p >%arre& and p%shed the

h%sband and started t c&&ect her c&thes and be&ngings in

rder t g t her parents h%se. At that ti!e, the h%sband

and his parents cnvinced her and she stayed the night. On

the ne?t day, the h%sband and his parents ca&&ed her parents

and her parents cnvinced her. )herea4ter n 7.2.2-'- the

(i4e 4 her (n accrd, &e4t the !atri!nia& h!e a&ng (ith

her parents. )his is s%! and s%bstance 4 the a&&egatins 4

the h%sband n the pint 4 cr%e&ty.

In rder t prve the cr%e&ty, the h%sband has

e?a!ined hi!se&4 and the (i4e has a&s e?a!ined herse&4. "

ther (itnesses (ere e?a!ined by the parties.

< )he &earned c%nse& 4r the appe&&ant pinted %t that

the a&&egatins !ade by the h%sband regarding picking %p 4

>%arre&s and nt giving respect t his parents, are 4%nd t be

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t 5 fca.74.13.sxwvag%e and n !ateria& partic%&ars have been given by therespndent in re&atin t these a&&egatins. )he !ain gr%ndt prve cr%e&ty (hich has been stated by the h%sband, is that

sn a4ter !arriage (hen they (ent 4r hney!n t

Mahaba&esh(ar 4r 4%r days and three nights, he !ade

atte!pts t cns%!!ate the !arriage b%t the (i4e re4%sed t

a&&( hi! t t%ch her. Accrding t the h%sband, this nn

cns%!!atin 4 !arriage at the ti!e 4 hney!n ca%sed

hi! tre!end%s cr%e&ty. It (as s%b!itted by the &earned

c%nse& 4r the h%sband that 4ai&%re t c!p&y (ith ne 4 the

essentia& b&igatins 4 the !arita& &i4e by a sp%se, (%&d

a!%nt t s%bjecting the ther t cr%e&ty. It is ne 4 the

essentia& and principa& b&igatins n the part 4 the sp%se t

satis4y the se?%a& %rge 4 the ther, (hich is nat%ra& instinct.

Married &i4e (ith%t a se?%a& &i4e (i&& be a c%rse. "r!a& se?%a&

&i4e cannt be deserted 4r! a happy !arita& &i4e. It (as

bserved by rd 1enning in 3a&est Sky s. 3a&est Sky, '9-

2: A&& @R 097/ that (i&&4%& and %nj%sti4iab&e re4%sa& 4 se?%a&

interc%rse is destr%ctive 4 !arriage, !re destr%ctive,

perhaps, than anything e&se. =%st as nr!a& se?%a& interc%rse

is the nr!a& bnd 4 !arriage, s the (i&&4%& re4%sa& 4 it

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t 6 fca.74.13.sxwca%ses a !arriage t disintegrate. It gives rise t irritabi&ityand discrd, t nerv%sness and !ani4estatins 4 te!per, andhence, t the break d(n 4 !arriage.

B )he &earned c%nse& 4r the h%sband cntended that

re4%sa& t have se?%a& interc%rse c&ear&y a!%nts t cr%e&ty.

5e p&aced re&iance %pn the decisin 4 the S%pre!e *%rt in

the case 4 G%&'%( S)*+, V. H&/)*& !%& 2010 ALL

SCR 2 t s%pprt his cntentin. 5e pinted %t that in

paragraph '- 4 the j%dg!ent, it is he&d that %ni&atera&

decisin 4 re4%sa& t have interc%rse 4r cnsiderab&e perid

(ith%t there being any physica& incapacity r va&id reasn,

!ay a!%nt t !enta& cr%e&ty.

7 )he &earned c%nse& 4r the appe&&ant s%b!itted that

the evidence 4 the (i4e c&ear&y sh(s that at that ti!e her

!enstr%a& perid (as ging n and it is beca%se 4 this that

she re4%sed t a&&( the h%sband t cns%!!ate the !arriage.

)he &earned c%nse& 4r the appe&&ant has a&s pinted %t that

e?cept 4r the perid 4 4%r days that they had gne t

Mahaba&esh(ar, there is n a&&egatin !ade by the h%sband

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t 7 fca.74.13.sxwthat the (i4e therea4ter a&s cntin%ed t re4%se t have se?%a&interc%rse. On ging thr%gh the evidence, (e 4ind this is s.)h%s, j%st n the basis 4 the evidence 4 the respndent that

d%ring 0 t # days that they (ere in Mahaba&esh(ar the (i4e

did nt a&&( hi! t have se?%a& interc%rse, cannt be said t

be s%ch as t ca%se !enta& r physica& cr%e&ty t the h%sband.

It is a&s t be nted that the (i4e has given a va&id e?p&anatin

4r re4%sa& t have se?%a& interc%rse d%ring this perid i.e. her

!enstr%a& cyc&e (as ging n.

9 In the case 4 S%/* !5%& V. S%,)& !5%&

2009 63 M,.L.J. 6SC 13" the S%pre!e *%rt, a4ter

cnsidering severa& j%dg!ents has bserved that i4 it is

!enta& cr%e&ty, the en>%iry !%st begin as t the nat%re 4 the

cr%e& treat!ent and then as t the i!pact 4 s%ch treat!ent n

the !ind 4 the ther sp%se. Chether it ca%sed reasnab&e

apprehensin that it (i&& be har!4%& r inj%ri%s 4r hi! t &ive

(ith the respndent %&ti!ate&y is a !atter 4 in4erence t be

dra(n by taking int acc%nt the nat%re 4 cnd%ct and its

e44ect n the c!p&aining sp%se. Chether ne sp%se has

been g%i&ty 4 cr%e&ty t ther is essentia&&y a >%estin 4 4act

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t 8 fca.74.13.sxwand previ%s&y decided cases have &itt&e, i4 any, va&%e. )he*%rt is e?pected t bear in !ind the physica& and !enta&cnditin 4 the parties as (e&& as their scia& stat%s, and

sh%&d cnsider the i!pact 4 the persna&ity and cnd%ct 4

ne sp%se n the !ind 4 the ther (eighing a&& incidents and

>%arre&s bet(een the sp%ses 4r! that pint 4 vie(.

'- )he S%pre!e *%rt in the case 4 N8* !,:) V.

N:% !,:); 20064 M,.L.J. 6SC 242 (hi&e dea&ing (ith an

appea& arising 4r! a !atri!nia& petitin 4i&ed by the h%sband

seeking a decree 4 divrce n the gr%nd 4 cr%e&ty, has

bserved that the 4%ndatin 4 a s%nd !arriage is t&erance,

adj%st!ent and respecting ne anther. )&erance t each

therDs 4a%&t t a certain bearab&e e?tent has t be inherent in

every !arriage, Petty >%ibb&es, tri4&ing di44erences sh%&d nt

be e?aggerated and !agni4ied t destry (hat is said t have

been !ade in heaven. A&& >%arre&s !%st be (eighed 4r! that

pint 4 vie( in deter!ining (hat cnstit%tes cr%e&ty in each

partic%&ar case and as nted abve, a&(ays keeping in vie( the

physica& and !enta& cnditins 4 the parties, their character

and scia& stat%s. A t technica& and hypersensitive apprach

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t 9 fca.74.13.sxw(%&d be c%nter prd%ctive t the instit%tin 4 !arriage.)he *%rts d nt have t dea& (ith idea& h%sbands and idea&(ives. It has t dea& (ith partic%&ar !an and (!an be4re it.

In the present case, nne 4 the incidents 4 the a&&eged

cnd%ct 4 the respndent c%&d be ter!ed as int&erab&e.

'' $esides the a&&egatins that the (i4e re4%sed t have

se?%a& interc%rse d%ring 0 t # days perid d%ring (hich they

had gne t Mahaba&esh(ar 4r hney!n, h%sband has

re&ied n his evidence that the (i4e %sed t pick %p >%arre& (ith

hi! and his parents and she never gave respect t his parents.

As 4ar as these a&&egatins are cncerned, n !ateria&

partic%&ars have been stated by the respndent and n&y vag%e

and genera& a&&egatins have been !ade by hi!. )hese, in %r

pinin, are nt s%44icient t prve that the (i4e treated hi!

(ith cr%e&ty.

'2 )he h%sband has tried t cntend that n 2#th, 2th

and 2


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t 10 fca.74.13.sxw7.'2.2--9. )his !eans that a4ter 'E !nth 4 the !arriage,the (i4e had gne t "ashik 4r 44ice (rk. It is an ad!itted4act that the (i4e (as (rking and in s%ch case, i4 it (as

necessary 4r her t g n 44ice (rk, n 4a%&t can be 4%nd

(ith her 4r ging t "ashik. 5ence, ging t "ashik n 44ice

(rk cannt be ter!ed as an act 4 cr%e&ty.

'0 @ven i4 it is ass%!ed that a&& the a4re!entined

incidents did cc%r in the !anner as stated by the respndent,

sti&& in %r pinin, the cnd%ct 4 the appe&&ant (as nt 4 s%ch

a character and gravity s as t give rise t a reasnab&e

apprehensin in the !ind 4 the respndent that it (i&& be

har!4%& r inj%ri%s 4r hi! t &ive (ith her r it (%&d be

i!pssib&e 4r the! t &ive tgether (ith%t !enta& agny r

trt%re. In the ther (rds, the respndentDs cnd%ct (as nt

s%ch that n reasnab&e persn (%&d t&erate it. Parties t the

!arriage, tying n%ptia& knt, are s%ppsed t bring ab%t the

%nin 4 t( s%&s. It creates a ne( re&atinship 4 &ve,

a44ectin, care and cncern bet(een the h%sband and (i4e and

that it brings t( 4a!i&ies tgether. S%ch ties cannt be

a&&(ed t be severed n the gr%ndsFincidentsFcnd%ct (hich

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t 11 fca.74.13.sxware rdinary (ear and tear 4 !atri!nia& &i4e. "ne 4 thea4re!entined incidents r cnd%ct 4 the (i4e, in %r pinin,c%&d be ter!ed as grave and (eighty t be treated as the

ca%se 4r cr%e&ty. It is tr%e that the (rd cr%e&ty is nt

de4ined and, there4re, it is nt pssib&e t say as t (hen the

cnd%ct 4 ther sp%se cnstit%tes cr%e&ty, h(ever, the dr

4 cr%e&ty cannt be pened s (ide ther(ise divrce (i&&

have t be granted in every case 4 inc!patibi&ity 4

te!pera!ent. )hat (as nt the intentin 4 egis&at%re (hen

the gr%nd 4 cr%e&ty (as !ade avai&ab&e 4r seeking a decree

4 divrce.

'# )herea4ter, the case 4 the respndent is that the

appe&&ant %sed t (ear shirt and pant (hi&e ging t 44ice

(hich (as nt &iked by hi!. )he appe&&ant and the respndent

are bth ed%cated persns. $th are (rking. It is nt his case

that she %sed t (ear shirt and pant every day (hi&e ging t

44ice. king t the strata 4 the sciety 4r! (hich they are

c!ing, ass%!ing that the (i4e %sed t (ear shirt and pant

(hi&e ging t 44ice n 4e( ccasins, it (%&d nt be s%ch

cnd%ct n the part 4 the (i4e as t grant divrce n the

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t 12 fca.74.13.sxwgr%nd 4 cr%e&ty.' )he &ast incident n (hich re&iance has been p&aced

by the h%sband is that the (i4e treated hi! (ith cr%e&ty n

2.2.2-'- (hen she ret%rned h!e 4r! 44ice at '-.-- p.!.

)he respndent tried t cnvince the (i4e t behave in a

prper and d%ti4%& !anner. )here%pn, she picked %p >%arre&

and p%shed the h%sband and started t c&&ect her c&thes and

be&ngings in rder t g t her parents h%se. As 4ar as this

incident is cncerned, it is nticed that the h%sband and his

parents cnvinced her and she did nt &eave the h%se that

night. On the ne?t day, the h%sband and his parents ca&&ed her

parents and they cnvinced her and she (as cnvinced.

'< In the case 4 S,', R*) V. M,%;& R)

6199


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t 13 fca.74.13.sxwis adverse&y a44ecting the ther. )he cr%e&ty !ay be !enta& rphysica&, intentina& r %nintentina&. I4 it is physica&, it is a>%estin 4 4act and degree. I4 it is !enta&, the en>%iry !%st

begin as t the nat%re 4 the cr%e& treat!ent and then as t the

i!pact 4 s%ch treat!ent n the !ind 4 the sp%se. Chether

it ca%sed reasnab&e apprehensin that it (%&d be har!4%& r

inj%ri%s t &ive (ith the ther, %&ti!ate&y, is a !atter 4

in4erence t be dra(n by taking int acc%nt the nat%re 4 the

cnd%ct and its e44ect n the c!p&aining sp%se. )here !ay,

h(ever, be cases (here the cnd%ct c!p&ained 4 itse&4 is

bad en%gh and per se %n&a(4%& r i&&ega&. )hen the i!pact r

the inj%ri%s e44ect n the ther sp%se need nt be en>%ired

int r cnsidered. In s%ch case, the cr%e&ty (i&& be estab&ished

i4 the cnd%ct itse&4 is prved r ad!itted. )he absence 4

intentin sh%&d nt !ake any di44erence in the case, i4 by

rdinary sense in h%!an a44airs, the act c!p&ained 4 c%&d

ther(ise be regarded as cr%e&ty. Intentin is nt a necessary

e&e!ent in cr%e&ty. )he re&ie4 t the party cannt be denied n

the gr%nd that there has been n de&iberate r (i&&4%& i&&

treat!ent.

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t 14 fca.74.13.sxw'B )he !arried &i4e sh%&d be assessed as a (h&e and a4e( is&ated instances ver certain perid (i&& nt a!%nt t

cr%e&ty. )he i&&cnd%ct !%st be preceded 4r a 4air&y &engthy

perid (here the re&atinship has deterirated t an e?tent

that beca%se 4 the acts and behavi%r 4 a sp%se, ne party

4inds it e?tre!e&y di44ic%&t t &ive (ith the ther party n &nger

!ay a!%nt t !enta& cr%e&ty. Mere trivia& irritatins, >%arre&s,

nr!a& (ear and tear 4 !arried &i4e (hich happens in day t

day &i4e in a&& 4a!i&ies (%&d nt be ade>%ate 4r grant 4

divrce n the gr%nd 4 cr%e&ty. On&y s%stained %nj%sti4ied

and reprehensib&e cnd%ct a44ecting physica& and !enta& hea&th

4 the ther sp%se !ay &ead t !enta& cr%e&ty. )here is n

evidence t that e44ect in the present case.

'7 Ce have a&ready veri4ied a&& the a&&egatins !ade in

the petitin, (ritten state!ent as (e&& as the evidence 4 bth

the parties. On ging thr%gh the sa!e, (e are satis4ied that

n the basis 4 s%ch instances, the !arriage cannt be

diss&ved. In this vie( 4 the !atter, the appea& is a&&(ed.

)he j%dg!ent and rder dated '9.'2.2-'2 passed by the

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t 15 fca.74.13.sxw8a!i&y *%rt ".2, M%!bai in Petitin ". A#'9 4 2-''thereby diss&ving the !arriage bet(een the parties, by adecree 4 divrce, is set aside.

'9 " rder as t csts.

2- 1ecree be dra(n %p accrding&y.

#SHRI. P.N.DESHMU!H" J.$ #SMT. V.!.TAHILRAMANI" J.$

kandarkar

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