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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)
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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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