Divorce On The Ground of Cruelty PDF

12/13/2019 Sadhana Satish Kolvankar Vs.
Satish Sachidanand Kolvankar -
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LATEST JUDGEMENT
 CRUELTY  DIVORCE  JU
Sadhana Satish Kolvankar Vs.

Satish Sachidanand Kolvankar Naveen Kohli Vs
Neelu Kohli
By Shonee Kapoor / Novemb

BY SHONEE KAPOOR / ON DECEMBER 5, 2019 / AT 4:39 PM /
2019
IN CRUELTY , DIVORCE , JUDGEMENT 108 VIEWS
LATEST ARTICLES

 498A  ARTICLES
Court: BOMBAY HIGH COURT
Bench: JUSTICE H.L. Gokhale & A.S. Aguiar
Sadhana Satish Kolvankar Vs. Satish Sachidanand Kolvankar On 15 July 2004
Law Point:
Hindu Marriage Act, 1955 — Sections 12(1)(a), 13(1)(ia) and 25 — Impotency, Cruelty : Maintenance :
Parties lived together hardly for few months : Their physical relationship was not at all smooth : Constant
498A Myth Buste
quarrels: Appellant went back to her parents : Attempt to reconcile failed : Having waited for 1 year
respondent constrained to file proceeding in Family Court : Appellant filed complaint of cruelty : Finding By admin / November 4, 201
on issue of nullity on plea of impotency of appellant not accepted but finding given regarding appellant ↑
https://www.shoneekapoor.com/sadhana-satish-kolvankar-vs-satish-sachidanand-kolvankar/ 1/13
12/13/2019 Sadhana Satish Kolvankar Vs. Satish Sachidanand Kolvankar -
treated respondent with cruelty upheld : Case for divorce under Section 13(1)(ia) made out : Respondent
liable to pay by way of maintenance sum of Rs. 1,200/- per month to appellant until he arranges to pay
further lumpsum amount of Rs. 1.5 lacs : Thereafter his responsibility will come to end. LATEST TEMPLATE

 RTI  TEMPLATE
JUDGEMENT
This Family Court appeal is filed by a wife seeking to challenge the judgment and order dated 11th January, 1999
passed by a Judge, Family Court, Mumbai, on a petition moved by the respondent-husband being M.J. Petition
No. A-147 of 1995. That petition prayed for a decree of nullity on the ground of non-consummation of marriage Template For Ge
owing to the impotence of the appellant under Section 12(1)(a) of the Hindu Marriage Act, 1955 (for short, “the Details Of Wife F
said Act”) and in the alternative for divorce on the ground of cruelty under Section 13(1)(ia) of the said act. The School (Governm
Judge of the Family Court held that both these grounds were established and has granted a decree on both the or Pvt. School)
prayers. Being aggrieved by that judgment and order, the present appeal has been filed.
B d i / S b 26 20
2. The appeal having been admitted, there has been a stay of the impugned judgment and order. The respondent
has, therefore, not re-married. Under the impugned judgment and order, the appellant was directed to be paid SAHODAR
an amount of Rs. 500/- per month towards maintenance under Section 25 of the said Act. There has also been an
order to pay her an amount of Rs. 500/- additionally in a proceeding taken out by her under Section 125 of the
Code of Criminal Procedure. Both these orders have been complied with so far, though with some interruption
at times. After the appeal was admitted, an earlier Division Bench hearing the appeal suggested the respondent
on 26th June, 2000 that he should consider paying a sum of Rs. 500/- more. The respondent pointed out that he
was working as a Crane Operator in Mazgaon Ltd. (a Government Undertaking) and had obligations towards his
old mother and the widow of his deceased brother and further that at that time his actual take-home salary was
hardly Rs. 4,000/-. However, in deference to the suggestion of the Court, the respondent agreed to pay Rs. 500/-
more. Thus, as of now, Rs. 1,500/- is being paid to the appellant-wife per month and there are no arrears in this
behalf. Before we further deal with the matter, we would like to record at the outset that we took good efforts to
see if the controversy could be resolved amicably either by the parties coming together or by separating on
agreed terms. However, the efforts did not succeed. MATRIMONIALADVOC
3. The facts leading to the filing of the petition for nullity/divorce are as follows:
(i) The appellant and the respondent were married as per the Hindu Vedic rites in Mumbai on 16th November,
1993. It is the respondent’s case that this marriage has remained non-consummated due to the impotence of the
appellant and besides that she has treated him with cruelty.
(ii) As far as the grievance of non-consummation is concerned, the respondent pleaded in his petition that after
the marriage he took a room in Park Hotel, Shivaji Park, Mumbai on 19th November, 1993. According to him, on
that very night, the appellant told him that she was not interested in any physical relations. When he tried to ask
the appellant about her indifference, she abused him and strictly warned him not to approach her in any
manner. Further, as mentioned in the petition, she stated that she had better proposals and she did not want to
marry him but had been compelled to do so.
(iii) It is further pleaded in the petition that on 28th November, 1993, both of them went to Bangalore for
honeymoon. During those days, the respondent tried to pacify the appellant but she was adamant and refused to
perform her conjugal duties. After coming back to Mumbai, the respondent narrated the situation to his brother
who called both of them to stay in his house at Thane and offered his bed-room to them. The reluctance of the
appellant continued over there also. The wife of the respondent’s brother took the appellant to a doctor for an
appropriate medical advice but that was not honoured. Thereafter a meeting was arranged where relatives of
both the parties remained present and the appellant gave in writing that she had made a mistake and that she
will not repeat it. ↑
(iv) As far as the grievance of cruelty is concerned, the respondent contended that their marriage was a
proposed marriage and even before the marriage and after the engagement, the appellant behaved with him
rudely. Her behaviour even after the marriage was rude and insolent. When both of them came down to
Mumbai after the honeymoon, his mother was seriously ill. The appellant ignored the respondent’s mother in
her illness and did not attend her. Even after the above referred writing was given, the appellant did not
improve her behaviour. She stayed with him for about two months but all throughout continued to torment and
harass. She threatened to commit suicide and alleged that the respondent was having relations with other
women including his own sister. It is at this stage that the respondent asked her brother to advise her. He took
her away on 13th February, 1994.
(v) In spite of all these happenings, the respondent approached a Social Organization viz.. Maratha Mandir Free
Legal Aid Centre, but all such efforts of intervention failed. The respondent submitted that all these aforesaid
acts including refusal to have physical relations, amounted to cruelty. He, therefore, prayed for a decree of
nullity and in the alternative, a divorce on the ground of cruelty.
(vi) In para-13 of the petition, the respondent contended that the appellant was working as a contractor in cloth
looms business at Bhiwandi and her income was Rs. 3,000/- per month.
4. The appellant filed a written statement wherein she contended that there was no cause of action to file the
petition and that, in fact, she was herself the sufferer. She further contended that the respondent suspected her
character and also used to assault her. After these preliminary submissions, she denied all the averments and
allegations in the petition. She dealt with each of the paragraphs of the petition mainly by denying the
averments therein. In para-12 of the petition, the earlier referred joint family meeting had been mentioned and
also the apology given by the appellant. A copy of this apology was annexed as Exhibit ‘B’ to the petition. In para-
6(1) of the written statement, the appellant dealt with this paragraph 12 and denied that such a joint family
meeting was held. She, however, did not make any reference to the writing claimed to have been given by her.
With respect to the attempt of the respondent to bring about the conciliation through the Maratha Mandir Free
Legal Aid Centre, the appellant accepted that this Institution had been approached but she contended that he
never tried to settle the problem. The appellant-wife denied that she worked as a contractor in cloth looms
business or that she had any income as claimed by the respondent.
5. The respondent examined himself in support of his case and narrated his case as stated in the petition. With
respect to the efforts made by his sister-in-law and visit to a doctor by her along with the appellant, he stated
that the doctor had advised the appellant to use an ointment but she did not use it. The respondent himself used
glycerin to facilitate the intercourse but the appellant pushed him away. He further stated that on the next date
after this attempt in Thane, the appellant broke her bangles, removed her Mangalsutra and broke it and stated
that she did not want to live with the respondent. He thereafter narrated as to how the meeting of the relatives
was arranged wherein she gave a writing as claimed earlier. The writing, when translated from Marathi into
English, reads as follows:
“I have committed a mistake. I may be pardoned by all. I assure that I will not repeat any such mistake. In case
of any such mistake, whatever decision is taken, will be acceptable to me. I will not blame anybody for that.
Sd/-
Sadhna Satish Kolvankar”
Thereafter there are signatures of the persons present and which are as follows:
“(1) D.R. Jadhav, uncle of the appellant.
(2) Sanjay Kolvankar, elder brother of the respondent.
(3) Deepak Kolge, brother-in-law of the respondent.
(4) S.V. Kokate, brother of the appellant.”
The respondent tendered the original writing in evidence. The appellant accepted that this writing was in her
own handwriting. That was so recorded by the learned Judge whereafter he exhibited the document as Exhibit
19.
6. When the cross-examination of the respondent started, it is seen that the first question asked to him was that
there was incomplete intercourse between the parties, which he denied. In para-26 of the cross-examination, it
was put to him that the appellant had filed a criminal case against him under Section 498A of the Indian Penal
Code. It was further put to him that she had filed a case under Section 125 of the Code of Criminal Procedure for
maintenance and that he was directed to pay maintenance of Rs. 500/- per month. The respondent accepted both
these statements and the documents concerning those proceedings were exhibited. The respondent was shown
the report of medical examination of the appellant dated 14th January, 1998 by one Dr. Asha Dalal, Obst. and
Gynaecologist. That report was obtained during the pendency of the above referred matrimonial proceeding.
The respondent accepted that such report was obtained. Subsequently again it was put to him that after 20th
November, 1993, their sexual life was normal which he denied. It was again put to him that there was
incomplete intercourse at Park Hotel, which he again denied. It was also put to him that he did not use glycerin
after the advice was taken from the doctor and the respondent denied that suggestion also.
7. The respondent thereafter examined his brother Sanjay, who narrated as to how he called the respondent to
come and stay at his residence at Thane and as to how his wife took the appellant to the Gynaecologist. He also
narrated the incident of breaking of Mangalsutra and the meeting of the relatives where the appellant gave her
writing. He identified the signatures of the maternal uncle of the appellant, his own signature and that of his
brother-in-law Deepak Kolge. The respondent then examined Swapna, wife of Sanjay, who also narrated as to
how she took the appellant to a doctor and what was his advice. She mentioned the name of doctor as Dr.
Gosavi. She also mentioned the incident of breaking Mangalsutra and bangles and the writing given by the
appellant. The 4th witness examined by the respondent was his brother-in-law Deepak Prabhakar Kolge. He
stated that there was no husband-wife relationship between the appellant and the respondent. This witness
Kolge further stated that he was present when the meeting for conciliation took place. He stated that the
appellant assured of good behaviour in future and gave that writing. He identified his own signature on that
writing and that of various witnesses to that writing. In the cross-examination this witness Kolge was asked
whether the earlier referred complaint under Section 498A included the name of his wife as accused and he
accepted the suggestion. At the end of the cross-examination of this last witness, it was put to him that the above
referred writing given by the appellant was given before their marriage. It was also put to him that it was not in
respect of the physical relations. He denied both these suggestions.
8. The appellant examined herself in defence. As far as their stay at Park Hotel at Shivaji Park, Mumbai and the
grievance of non-consummation is concerned, she stated in para-11 of her examination-in-chief as follows:
“One day after the marriage, we stayed at Park Hotel. I felt pain during conjugal intercourse. At that time
petitioner said that I was having illicit relations with somebody and, therefore, I did not permit him to have
sexual intercourse. But afterwards our marriage was consummated.”
In the cross-examination it was put to her that the marriage was not consummated which she denied. She,
however, stated in para-6 in her examination-in-chief that the respondent was not speaking with her and he was
also not sleeping near her. As far as the efforts made by the respondent for conciliation through Maratha Mandir
Free Legal Aid Centre, she stated in her examination-in-chief that over there he stated that there was no physical
relation between two of them. In her examination-in-chief itself, she accepted that she had given the above
referred writing, Exhibit-19, but she stated that it was written after engagement but before marriage. In her
cross-examination, the appellant accepted that she signed it as “Sadhana Satish Kolvankar” which was her
marital name and not as “Sadhana Vishnu Kokate”, which was her maiden name. It is material to note that this
plea that the writing was executed before the marriage, has come for the first time in her evidence and no such
plea was taken by her earlier in the written statement. The appellant accepted that she was working with Vipul
Enterprises before marriage as a Checker and used to earn Rs. 3,000/- per month. She, however, denied that she
was working at the time of giving her evidence and that she was with the same company and was drawing Rs.
↑
4,000/- per month. The appellant accepted that she was examined by lady doctor in Nair Hospital and which
report was at Exhibit 15.
9. The appellant examined her brother Sudhir Vishnu Kokate and her maternal uncle Dattatray Ramchandra
Jadhav. Both of them have signed the above-referred writing, Exhibit 19, as witnesses. Both of them accepted
that they had signed the writing but stated that it was written after the engagement and before marriage. The
uncle Jadhav stated in his deposition that he had told the appellant to write her name as “Sadhana Satish
Kolvankar”. It is material to note that both of them no where state as to what was the occasion to give such a
writing before marriage. The appellant’s brother has stated for the first time in his statement that after the
appellant came back to his house, he visited the respondent’s house for conciliation and that time the
respondent’s mother demanded a room from him and stated that there was a proposal from other girls.
10. The appellant examined the above referred Dr. Asha Dalal as defence witness No. 2. This doctor stated that
she examined the appellant on 14th January, 1998. As far as her physical condition is concerned, she gave an
opinion that the patient had sexual intercourse but she was not habituated with sexual intercourse. In the cross-
examination, this doctor stated that the patient had told her that she had visited Dr. Khemani, Gynaecologist
twice because she had difficulty in having physical relations. That doctor had examined her twice. In her cross-
examination, Dr. Dalal accepted that for rupture of hymen partial penetration was sufficient.
11. The learned Judge of the Family Court thereafter heard the arguments. The learned Judge then answered the
two issues of non-consummation owing to impotence and cruel treatment in favour of the respondent. For
arriving at the finding of non-consummation, the learned Judge noted the statements made by the respondent
with respect to his attempts at Park Hotel, Mumbai, Bangalore and then at Thane. He noted as to how his sister-
in-law took the appellant to the doctor, though he has made a mistake in mentioning the name of Dr. Khemani as
the one to whom she took the appellant, because as per her deposition, the doctor to whom she consulted for the
appellant was one Dr. Gosavi. That apart, the learned Judge noted that the appellant herself had stated that at
the time of their first contact in Park Hotel, she felt pain during conjugal intercourse. He further noted that the
appellant had told Dr. Dalal also that she had difficulty in having physical relations and, therefore, had visited
Dr. Khemani. Dr. Dalal had also stated that the patient had visited Gynaecologist twice for “dysparunia” and in
her evidence she stated that “dysparunia” means difficulty or pain during sexual intercourse. The learned Judge
noted that certain advice was given to her when she went to doctor along with her sister-in-law but she did not
follow it. On all this material the learned Judge came to the conclusion that it corroborated the respondent’s case
of non-consummation of marriage. He held that it so happened because the appellant was impotent. The learned
Judge relied upon the writing, Exhibit 19, and commented that no girl would give such a writing before her
marriage and did not accept the explanation given by the appellant. He also did not accept that it was a mistake
on her part to sign it in her maiden name. Such writing could be given only after the marriage and that was
given principally because of her failure to have physical relationship.
12. The learned Judge thereafter held that denial of physical relationship amounted to cruelty. He, however,
declines to look into the complaint under Section 498A relied upon by the respondent as another piece of cruelty
since he had not amended the matrimonial petition to mention this complaint. However, as stated above,
inasmuch as denial of physical relationship amounted to cruelty, on that ground, he held that the second plea
was also established. The learned Judge, therefore, declared the marriage as null and void and also dissolved it
under Section 13(1)(ia) of the said Act.
13. Ms. Godse, learned Counsel appearing for the appellant-wife, firstly, submitted that the learned Judge had
committed an error in granting a decree on both the counts. She submitted that once he held that the marriage
was null and void, there was no occasion to dissolve it by granting a decree of divorce. On the other hand, Mr.
Keni, learned Counsel appearing for the respondent-husband, submitted that the respondent had raised two
pleas in his petition and had specifically made alternative prayers. He had sought a decree of nullity and in the
alternative a divorce. We have noted the submissions. It is clear that the petition had alternative prayers. In
view thereof, it would not have been proper for learned Judge to decide only one issue and not to decide the
other. Whenever any such alternative pleas are taken, it is normally expected from the Trial Court that it decides
all the issues together so that an occasion for a remand is avoided. The only error on the part of the learned ↑
Judge is that having held that the case for nullity was made out, he was expected to pass only a decree of nullity
under Section 12(1)(a) of the said Act. He could have given a finding of the second issue viz., as to whether the
respondent proved that the appellant treated him with cruelty and he was right in rendering the finding on that
issues also. The learned Judge, however, ought to have held that since the decree for nullity was being granted,
there was no need to grant a decree of divorce under Section 13(1)(ia) of the said Act. However, in our view, that
cannot be a reason for this Court to interfere with the judgment and order beyond the observations that we
have made above.
14. The second submission made by Ms. Godse, learned Counsel appearing for the appellant was that the finding
of the learned Judge on the ground of non-consummation owing to impotence of the appellant was erroneous.
She submitted that Dr. Dalal had clearly given an opinion that the appellant had sexual intercourse and the
marriage had been consummated but the appellant was not habituated to the sexual intercourse. She further
submitted that this finding of the doctor was not disturbed. It is true that the appellant had told Dr. Dalal that
earlier she had visited Dr. Khemani twice and that she had difficulty in having physical relations. This, however,
did not mean that she did not have any intercourse or that her marriage was not consummated because she was
impotent. The report of the medical examination showed that the hymen was not intact. Dr. Dalal also noted the
personal history given by the appellant which stated that according to the appellant, she had stayed with her
husband only for 15 days and that intercourse took place 3 to 4 times but thereafter her husband was not
interested. Ms. Godse, therefore, submitted that it was totally wrong on the part of the learned Judge to come to
the conclusion that the appellant was impotent or was impotent qua the respondent and that marriage had not
been consummated. Ms. Godse drew our attention to the second medical report which the earlier Division Bench
of this Court had sought and that report also went in favour of the appellant.
15. Mr. Keni, on the other hand, emphasized the fact that the appellant had admitted that she had pain during
conjugal intercourse in Park Hotel. She had stated it to Dr. Khemani and which again she repeated to Dr. Dalal.
He submitted that the revulsion expressed by the appellant for physical relationship was clearly writ large on
the evidence. This was seen when they lived together in Park Hotel at Mumbai, thereafter at Bangalore and
subsequently at Thane. This had, in fact, led to the meeting of all the relatives where the aforesaid writing,
Exhibit 19, was given and which could not be a writing given prior to the marriage. He, therefore, submitted that
if not a case of physical impotence, it was a case of impotency qua the respondent which had, in fact, led to non-
consummation. Mr. Keni further submitted that consummation meant having smooth physical relationship
which undoubtedly was absent between the parties. In the alternative, he submitted that if not a case of non-
consummation, it clearly amounted to a case of cruelty since the appellant had declined to have physical
relationship with the respondent and denial of proper physical relationship also amounted to cruelty which has
been held in different judgments and which was destructive of marriage as held by Lord Denning in the case of
Kaslefsky v. Kaslefsky, reported in 1950 (2) All.ER 398, quoted by the learned Judge of the Family Court in his
judgment. He tendered a copy of the judgment in the complaint under Section 498A filed by the appellant. Mr.
Keni submitted that at the stage of the Trial Court, the learned Judge had declined to look into this complaint
since the petition was not amended. However, that was a complaint filed by the appellant and the learned Judge
ought to have looked into it. Now, the complaint has been decided and dismissed as totally false one and this
Court should look into it and which also constituted a piece of cruelty.
16. With respect to the admission emanating from Exhibit 19, Ms. Godse tried to rely upon a judgment of the
Apex Court in the case of Prakash Chand Sharma v. Vimlesh (Smt.), reported in 1995 (4) SCC (Suppl.) 642, where
the Apex Court declined to give credence to two letters of regret written by the wife. It is, however, material to
note that as that judgment itself states that one letter was written after the institution of divorce and the other
was undated. Ms. Godse then submitted that the complaint under Section 498A could not be looked into nor the
judgment rendered therein.
17. Ms. Godse then relied upon a judgment of a Division Bench of this Court in the case of B v. A, reported in AIR
1993 Bom. 707. In para 5 of that judgment, the Division Bench has noted that Section 20 of the Act requires the
contents of every petition to be verified. In that matter various grievances were made by the husband but they
were too vague, not pleaded in the petition and the Court declined to look into them. Ms. Godse submitted that
↑
on a similar footing in the present case the filing of the complaint under Section 498A could not be looked into
and, therefore, filing of that complaint cannot be construed as ground for cruelty. She submitted that the
appellant was not alone responsible for not having the smooth relationship. The respondent had demanded a
room as stated in the evidence of the appellant’s brother but since that was not being provided, the problem had
arisen and, therefore, she submitted that the case for cruelty was sought to be falsely made out either for not
having smooth relationship or for any such cruel act on the part of the appellant.
18. Ms. Godse relied upon a judgment of a learned Single Judge of this Court in the case of Sadanand Sahadeo
Rawool v. Sulochana Sadanand Rawool, reported in II (1989) DMC 552=1989 (1) BCR 495, to submit that in that
case the husband had alleged that the wife was averse to sexual intercourse and then he had alleged infidelity.
The Court had held that it was the husband’s attempt to get rid of the wife. According to Ms. Godse, the present
case was a similar one. In our view, it is not possible for us to accept this submission. The facts in the present
case are quite contrary and substantial material in justification has been placed on record.
19. The point to be considered is whether the Family Court has erred in granting decree of nullity and that of
divorce. We have considered the rival submissions in this behalf. We quite see the force in the submissions of
Ms. Godse on the issue of impotence. As far as the grievance of impotence is concerned, Dr. Dalal has clearly
opined that although there was difficulty on the part of the appellant in having physical relationship and that
there was pain, she had sexual intercourse, but she was not habituated to it. Mr. Keni submitted that this opinion
is given on the basis of examination done on 14th January, 1998, whereas the problem between the parties arose
between the date of their marriage which was solemnized on 16th November, 1993 and 13th February, 1994
when she went away to her brother’s residence. Thus, the medical examination has been done some four years
thereafter. The medical examination, therefore, will have to be read as one giving the physical condition of the
appellant in January, 1998. However, there is no evidence of unchastity against the appellant and, therefore, as
far as non-consummation of the marriage is concerned, it is difficult to accept the plea of the respondent.
20. At the same time, the fact remains that even as per the statement given by the appellant to Dr. Dalal and as
seen from her report, Exhibit 56, the intercourse took place only 3 to 4 times in a span of about 3 months. The
respondent has given his reasons for the same. He has pointed out as to how the appellant had expressed her
revulsion when they first had a physical contact in Park Hotel, Mumbai. That situation seems to have continued
even during the honeymoon in Bangalore and subsequently at Thane. Thereafter a scene was created by the
appellant of breaking her bangles and Mangalsutra. The depositions of the respondent, his brother and sister-in-
law in that behalf cannot be rejected. Thereafter the fact that a meeting took place and that the appellant having
executed the writing therein that there was a mistake on her part and that she will not repeat it, also get proved.
According to the appellant, that writing was given after the engagement and before marriage. This defence is,
however, not taken anywhere in the written statement. It is also not put either to the respondent or to his
brother or to his brother’s wife when they were cross-examined. It is only when the last witness of the
respondent i.e., Deepak Kolge was examined that at the end of his cross-examination this suggestion was put to
him that this writing was made before marriage which he has denied. Thereafter in her deposition, the
appellant has tried to contend that it was so given before marriage and her maternal uncle had submited that
she wrote her name as “Sadhana Satish Kolvankar” as told by him. There is, however, no explanation as to what
was the occasion for her to give such writing before the marriage and why should she sign it at that time in her
marital name and not in her maiden name which was “Sadhana Vishnu Kokate”. It is not possible to accept this
plea which is clearly an afterthought. It is, therefore, clear that obviously the parties were not having smooth
relationship and that the appellant was responsible for it and, therefore, she gave the aforesaid writing.
21. It is also not possible for us to accept the submission of Ms. Godse that the act of filing of the complaint by the
appellant under Section 498A of Indian Penal Code and the decision thereon should not be looked into. It is
undoubtedly true that Section 20 of the Hindu Marriage Act requires a party filing a petition to state distinctly
the nature of the case and the facts on which the claim to relief is founded. In the present case, the complaint
was filed during the pendency of the divorce petition. The learned Judge commented that the respondent ought
to have amended his petition and has, therefore, declined to look into this aspect. But now the position is that
the complaint has been proceeded and has been dismissed and the copy thereof has been tendered by the
respondent in appeal. Can this Court say that this fact should be ignored? Ms. Godse did not dispute that such a
↑
complaint was filed. Neither did she offer any comments on the decision thereof. In fact, the respondent had
been specifically asked in his cross-examination as to whether any such complaint had been filed against him
which he accepted. Now, this complaint is dismissed and no appeal is filed therefrom. As seen from the order
passed by the learned Magistrate dismissing the complaint, the same was filed against the respondent, his aged
mother and his sister-in-law. It undoubtedly amounted to a harassment as they were required to go to the Court.
Again as seen from the order, the case was filed in the year 1996 and was ultimately dismissed after six long
years i.e., on 9th October, 2002 for want of any substance therein. In our view, all material which is logically
probative for a prudent mind cannot be excluded from consideration while arriving at a decision. There cannot
be any allergy to look into such material, provided it has a reasonable nexus and credibility. It is true that one
has to be careful in looking and evaluating such material. The essence of judicial approach is objectivity,
exclusion of extraneous matters from consideration and observance of rules of natural justice. In our view, on
these tests, the respondent cannot be denied the opportunity to rely upon this order.
22. It has been held that powers of the Appellate Court are wide and the Court can pass such orders in favour of
a respondent as are necessary in appeal even if the respondent had not filed any objection with respect to a
determination against him the only constraint being that parties before the lower Court should be there before
the Appellate Court and the question raised must properly arise out of the judgment of the lower Court. This has
been so held by the Apex Court while interpreting Order 41 Rule 33 of Code of Civil Procedure in the case of
Mahant Dhangir and Another v. Shri Madan Mohan and Others, reported in AIR 1988 SC 54 (para-15). In view of
this position, the respondent cannot be denied the opportunity of submitting that the learned Judge was wrong
in not looking into the fact that such a complaint had been filed leading to his harassment. In our view, it is a
relevant factor in considering the plea of cruelty. The aloofness of the appellant and not having the physical
relations coupled with a rude behaviour and filing of complaint under Section 498A of Indian Penal Code will
have to be all considered together. On the other hand, the respondent tried his level best for a reconciliation
after the appellant walked out of his house in February, 1994. He went to a social institution for intervention.
That having failed, also he waited for good time and the present proceeding was filed nearly one year thereafter
i.e., on 15th January, 1995. As far as the appellant is concerned, she did not file any proceeding for restitution of
conjugal rights. On the other hand, she chose to file a complaint under Section 498A which was found to be false
and came to be dismissed. The effect of all these factors will have to be considered together.
23. The judgment in the case of Parveen Mehta v. Inderjit Mehta, reported in II (2002) DMC 205 (SC)=IV (2002)
SLT 381=(2002) 5 SCC 706, contains a somewhat similar story. In that matter, the parties got married on
6.12.1985. The wife was a thin and frail lady. The couple lived together for about four months i.e., till 28.4.1986
and then parted company permanently. According to the husband, marriage was never consummated, whereas
according to the wife-Parveen she had conceived after the marriage, but had suffered a miscarriage, which was
not proved on evidence. The Apex Court upheld the judgment of the High Court granting dissolution of marriage
on the ground of mental cruelty. In para-22 of that judgment the Apex Court observed as follows:
“22. Judged in the light of the principles discussed above, what we find is that right from the beginning the
matrimonial relationship between the parties was not normal; the spouses stayed together at the matrimonial
home for a short period of about six months; the respondent had been trying to persuade the appellant and her
parents to agree to go for proper medical treatment to improve her health so that the parties may lead a normal
sexual life; all such attempts proved futile. The appellant even refused to subject herself to medical test as
advised by the doctor. After 21.6.1987 she stayed away from the matrimonial home and the respondent was
deprived of her company. In such circumstances, the respondent who was enjoying normal health was likely to
feel a sense of anguish and frustration in being deprived of normal cohabitation that every married person
expects to enjoy and also social embarrassment due to the behaviour of the appellant. Further, the conduct of
the appellant in approaching the police complaining against her husband and his parents and in not accepting
the advice of the superior judicial officer Mr. S.K. Jain and taking a false plea in the case that she had conceived
but unfortunately there was miscarriage, are bound to cause a sense of mental depression in the respondent.
The cumulative effect of all these on the mind of the respondent, in our considered view, amounts to mental
cruelty caused due to the stubborn attitude and inexplicably unreasonable conduct of the appellant.”
24. In this connection, it is necessary to rely upon a recent judgment of the Apex Court in the case of G.V.N.
↑
Kameshwara Rao v. G. Jabilli, reported in I (2002) DMC 266 (SC)=I (2002) SLT 153=AIR 2002 SCW 162. In that
matter, the Apex Court held that to constitute cruelty it need not be of such nature as causing reasonable
apprehension that it would be harmful to the party to live with other party. The Apex Court held that having
regard to the sanctity and importance of marriage in a community life, the Court should consider whether the
conduct of the counter petitioner is such that it has become intolerable for the petitioner to suffer any longer
and to live together is impossible, and then only the Court can find that there is a cruelty of the counter
petitioner. In this view of the matter, one had to note that in the present case, the respondent wife had filed a
criminal complaint against the husband, his aged mother and sister-in-law which factor was pressed in service
as an aspect of cruelty.
25. It is the impact of these cumulative events and circumstances which is needed to be taken into account to
consider total impact on the mind of person alleging cruelty. This Court has taken this view in the case of Nilima
Kishore Mhaske v. Kishore A. Mhaske, reported in 2002 (3) Mh.LJ. In the present case, the parties lived together
hardly for few months. Their physical relationship was not at all smooth. There were constant quarrels. An
attempt to patch up was made. The appellant admitted her guilt, gave in writing but still the situation did not
improve. The appellant went back to her parents. Thereafter an attempt to reconcile through a social
organisation was made. However, that also failed. Having waited for one year thereafter the respondent was
constrained to file the proceeding in the Family Court. The appellant on the other hand filed a complaint of
cruelty. In our view, the respondent cannot be blamed, if he formed an opinion that he was treated with cruelty.
In the circumstances, although we do not accept the finding on the issue of nullity on the plea of impotence of
the appellant, we uphold the other finding given by the learned Judge of the Family Court, namely, that the
appellant has treated the respondent with cruelty. The case for divorce under Section 13(1)(ia) of the said Act
was, therefore, made out. Accordingly, the respondent will be entitled to a divorce on that ground.
26. In view of what is stated above, Mr. Keni, learned Counsel appearing for the respondent-husband, submitted
that there was no occasion to grant any maintenance to the appellant-wife on a permanent basis under Section
25 of the Act. Ms. Godse, learned Counsel appearing for the appellant-wife on the other hand, submitted that the
appellant had left her job because of the marriage. She pointed out that the respondent had also accepted in
para-10 of his examination-in-chief that he had told her to leave the job at the time of marriage, though he has
stated further that she was quarrelling with him on that count. Ms. Godse, therefore, submitted that the
respondent must pay an appropriate maintenance. Mr. Keni, on the other hand, submitted that this was not a
case for granting any maintenance. According to the respondent, the appellant worked as a Checker with one
Vipul Enterprises. She accepted it in her cross-examination and that she received Rs. 3,000/- per month. She,
however, maintained that after her marriage she had discontinued that occupation. According to the
respondent, she continued to work there and received Rs. 4,000/- per month. This was put to her in the cross-
examination though she has denied the same. The appellant was a Crane Operator in Mazgaon Dock Limited and
his salary slip was produced for our perusal. It showed that his take-home salary was hardly Rs. 4,000/- in the
month of January, 2000. Ms. Godse, however, pointed out that this was because of the heavy loans and
deductions. His total salary is otherwise over Rs. 10,000/- per month. We, however, note that the respondent has
been paying the monthly maintenance as directed from time-to-time. In deference to the suggestion from the
Court, the respondent initially filed an affidavit and gave an undertaking and his Counsel made a statement that
even if the matter is not settled amicably, he is ready and agreeable to pay an amount of Rs. 1,500/- per month
regularly on the divorce being confirmed. Thereafter in defence to the suggestion from the Court, he paid an
amount of Rs. 50,000/- to the appellant and filed another affidavit on 7th June, 2004 that he will continue to pay
Rs. 1,200/- per month until he is able to arrange a further sum of Rs. 1,50,000/- as total maintenance.
27. Mr. Keni, learned Counsel appearing for the respondent, has relied upon paragraph 15 of a Full Bench
judgment of this Court in the case of Bhausaheb @ Sandu s/o Raghuji Magar v. Leelabai w/o Bhausaheb Magar,
reported in 2004 (4) Mh.LJ 1019, to submit that if the husband was not at fault, he should not be made to pay
alimony. As against that, Ms. Godse had drawn our attention to a Division Bench judgment of this Court in the
case of Gulab Jagdusa Kakwane v. Smt. Kamal Gulab Kakwane, reported in 1985 (1) BCR 82, (per P.B. Sawant, J.)
(as he then was in this Court) where the Division Bench has taken the view that the Court has ample discretion
under Section 25 of the Act to grant or refuse maintenance, even in cases where adultery was alleged.
↑
28. However, in view of the fair approach and the affidavit of the respondent, it is not necessary for us to go into
this aspect. In view of the statement made by Mr. Keni and the undertaking filed by the respondent, we bind the
respondent by that undertaking. The respondent has stated that he will try to raise an amount of Rs. 1.5 lakhs
(over and above Rs. 50,000/- already paid) and make it available to the appellant as and when he can. The
moment he makes that amount available, the respondent would be relieved of this obligation of paying Rs.
1,200/- per month. The respondent has his widowed sister-in-law and the old mother to look after. He is a Crane
Operator in the Mazgaon Dock with a limited salary. The respondent may get re-married as well after the
decision on this appeal in which case his liabilities will increase. We quite see the agony of the respondent
inasmuch as this marriage took place way back in November, 1993 and it failed in about three months. The
decree of the Family Court is in his favour and was passed in January, 1999 but he was required to wait for five
years more thereafter for this appeal to be decided. In spite of a finding in his favour on the issue of cruelty, he is
maintaining his offer. In our view, the respondent’s offer is quite fair and we direct him to abide by it.
29. In the circumstances, we pass the following order:
(a) The judgment and order dated 11th January, 1999 passed by the Judge, Family Court, Mumbai, is upheld to
the extent it holds that the appellant had treated the respondent with cruelty and the marriage between the
parties, therefore, stands dissolved by a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act,
1955, though not on the ground of nullity for non-consummation under Section 12(1)(a) of the Act.
(b) The respondent shall continue to pay by way of maintenance a sum of Rs. 1,200/- per month to the appellant
until he arranges to pay a further lumpsum amount of Rs. 1.5 lakhs. Thereafter his responsibility will come to an
end.
30. The appeal stands disposed of accordingly, though without any order as to costs.
31. Authenticated copy of this order be provided to the parties.
32. Ms. Godse appearing for the appellant applies for stay of this judgment and order that we have passed in this
appeal. Mr. Keni appearing for the respondent, on instructions, states that it is becoming harsh as far as the
respondent is concerned inasmuch as although he was married way back in the year 1993, the marriage lasted
only for a few months and although the impugned judgment and order of the Family Court was passed more
than five years ago in his favour, he has been required to wait further. Even so, on further instructions, Mr. Keni
states that the respondent will not get remarried for a period of six weeks hereafter.
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12/13/2019 Sadhana Satish Kolvankar Vs.

Satish Sachidanand Kolvankar -

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Sadhana Satish Kolvankar Vs.

By Shonee Kapoor / Novemb

Bench: JUSTICE H.L. Gokhale & A.S. Aguiar

Sadhana Satish Kolvankar Vs. Satish Sachidanand Kolvankar On 15 July 2004

Sadhna Satish Kolvankar”

“(1) D.R. Jadhav, uncle of the appellant.

(2) Sanjay Kolvankar, elder brother of the respondent.

(3) Deepak Kolge, brother-in-law of the respondent.

(4) S.V. Kokate, brother of the appellant.”

29. In the circumstances, we pass the following order:

31. Authenticated copy of this order be provided to the parties.

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