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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 74 OF 2013 IN PETITION NO. A-419 OF 2011

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.... Mr. Pankaj Shinde Adv cate 4 r the Appe&&ant Mr. 5e!ant +hadiga nkar Adv cate 4 r the Resp ndent ....

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Mr. Sandip Sitara! Pednekar ] Occ/ Service, residing at R ! " .#20] May%resh $%i&ding, ] 1attara! 2ad Marg, 3a&ach (ki, ] M%!bai,#-- -00 ]..Resp ndent

CORAM

RESERVED ON PRONOUNCED ON

H
SMT.V.!.TAHILRAMANI AND SHRI. P.N.DESHMU!H" JJ. FEB." MARCH 13" 2014 3" 2014 1 of 15
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Mrs. Sanjana Sandip Pednekar ] Age 29 years, Indian Inhabitant ] Occ; Service, residing at R ! " .# ] $%i&ding " .', $h i(ada )ransit *a!p] Shankarb%va +hadi Marg, ] $h i(ada, Pare&, M%!bai,#-- -'2 ]..Appe&&ant

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2 JUDGMENT #PER SMT. V.!.TAHILRAMANI" J.$

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'

5eard the &earned c %nse& 4 r the appe&&ant and the

&earned c %nse& 4 r the resp ndent.

$y c nsent 4 the parties,

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

)he !arriage

4 the appe&&ant and the resp ndent

Rites. It is the case

4 the resp ndent that the appe&&ant (h

(as his (i4e, treated hi! (ith cr%e&ty, hence, the resp ndent 4i&ed a petiti n i.e. Petiti n " . A,#'9 4 2-'' 4 r div rce n the gr %nd 4 cr%e&ty. )he said petiti n ca!e t be a&& (ed by the 8a!i&y

ba y

* %rt,

M%!bai

H
by

ig h
j%dg!ent

(as s &e!ni6ed

n 7.'2.2--9 at M%!bai as per 5ind% .edic

'9.'2.2-'2. $eing aggrieved by the said rder, this appea& has been pre4erred.

om

It is an ad!itted 4act that the !arriage bet(een the k p&ace n 7.'2.2--9 at )he case 4 the 4 his 4 the! the

appe&&ant and the resp ndent t

M%!bai as per the 5ind% .edic Rites.

appe&&ant is that the resp ndent (as the da%ghter !aterna& %nc&e. )here (as & ve a44air bet(een b th

and they had even shared physica& inti!acy pri r t

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C ou
and rder dated
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!arriage.

cr%e&ty,

the

resp ndent,h%sband

re&ied

instances/ 9i:

A4ter the !arriage b th the appe&&ant and the

days and three nights. atte!pts t a&& ( hi! t h ney! 4act. 9ii:

Acc rding t

c ns%!!ate the !arriage b%t the (i4e re4%sed t

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

that

om

"ashik 4 r

ba y

)he sec nd incident re&ied %p n by the h%sband is

n 2#th, 2;th and 2<th =an%ary, 2-'- the (i4e (ent t 44ice ( rk in spite 4 being advised n t t d s as

they (ere ne(&y !arried. $%t the (i4e (ent %t 4 M%!bai n her 44ice ( rk. )he 4%rther case 4 the h%sband is that the

(i4e %sed t (ear shirt and pant (hi&e g ing t the 44ice (hich (as n t &iked by hi!. She %sed t pick %p >%arre&s (ith hi!

and his parents and she never gave respect t his parents. 9iii: An ther incident re&ied %p n by the h%sband t sh (

t %ch her b dy.

ig h
5ence,

resp ndent (ent t

Mahaba&esh(ar 4 r h ney!

the h%sband, he !ade

n c !ing back 4r !

C ou
n the 4 && (ing n 4 r 4 %r
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In

rder t

sh ( that the (i4e treated hi! (ith

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that 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.!. tried t !anner. c nvince the (i4e t

behave in a pr per and d%ti4%&

)here%p n, she picked %p >%arre& and p%shed the

h%sband and started t rder t g t

c &&ect her c& thes and be& ngings in

and his parents c nvinced her and she stayed the night.

ig h

her parents h %se. At that ti!e, the h%sband On

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

(i4e

4 her

(n acc rd, &e4t the !atri! nia& h !e a& ng (ith )his is s%! and s%bstance 4 the a&&egati ns 4

the h%sband n the p int 4 cr%e&ty.

om

ba y

her parents.

In

rder t

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

and her parents c nvinced her.

)herea4ter

pr ve the cr%e&ty, the h%sband has e?a!ined herse&4. "

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

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)he &earned c %nse& 4 r the appe&&ant p inted %t that 4 be

the a&&egati ns !ade by the h%sband regarding picking %p >%arre&s and n t giving respect t his parents, are 4 %nd t

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n 7.2.2-'- the
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)he resp ndent

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vag%e and n

!ateria& partic%&ars have been given by the these a&&egati ns. )he !ain gr %nd

resp ndent in re&ati n t

n a4ter !arriage (hen they (ent 4 r h ney!

Mahaba&esh(ar 4 r 4 %r days and three nights, he !ade atte!pts t a&& ( hi! t c ns%!!ate the !arriage b%t the (i4e re4%sed t

c ns%!!ati n

4 !arriage at the ti!e

ig h
ther t

t %ch her.

Acc rding t

the h%sband, this n n, 4 h ney! n ca%sed

hi! tre!end %s cr%e&ty.

It (as s%b!itted by the &earned c !p&y (ith ne 4 the

essentia& a! %nt t

b&igati ns

essentia& and principa& satis4y the se?%a& %rge

ba y

s%bjecting the

H
4 the

c %nse& 4 r the h%sband that 4ai&%re t

4 the !arita& &i4e by a sp %se, ( %&d cr%e&ty. It is ne 4 the

b&igati ns

n the part 4 the sp %se t

ther, (hich is nat%ra& instinct.

om

Married &i4e (ith %t a se?%a& &i4e (i&& be a c%rse. " r!a& se?%a& &i4e cann t be deserted 4r ! a happy !arita& &i4e. It (as

bserved by 2 rd 1enning in 3a&est Sky .s. 3a&est Sky, '9;4 se?%a&

92: A&& @R 097/ Athat (i&&4%& and %nj%sti4iab&e re4%sa& interc %rse is destr%ctive

4 !arriage, ! re destr%ctive,

perhaps, than anything e&se. =%st as n r!a& se?%a& interc %rse is the n r!a& b nd 4 !arriage, s the (i&&4%& re4%sa& 4 it

C ou
n t
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t pr ve cr%e&ty (hich has been stated by the h%sband, is that

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ca%ses a !arriage t

disintegrate.

It gives rise t

irritabi&ity

and disc rd, t nerv %sness and !ani4estati ns 4 te!per, and hence, t the break d (n 4 !arriage.

B re4%sa& t

)he &earned c %nse& 4 r the h%sband c ntended that have se?%a& interc %rse c&ear&y a! %nts t cr%e&ty.

the case

4 G%&'%( S)*+, V-. H.&/)*01& !.%&2 2010 ALL s%pp rt his c ntenti n. 5e p inted %t that in

SCR 2334 t paragraph 'decisi n

4 re4%sa& t

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

om

the evidence

!enstr%a& peri d (as g ing

ba y

(ith %t there being any physica& incapacity

4 the j%dg!ent, it is he&d that A%ni&atera& have interc %rse 4 r c nsiderab&e peri d r va&id reas n,

)he &earned c %nse& 4 r the appe&&ant s%b!itted that 4 the (i4e c&ear&y sh (s that at that ti!e her n and it is beca%se 4 this that

she re4%sed t a&& ( the h%sband t c ns%!!ate the !arriage. )he &earned c %nse& 4 r the appe&&ant has a&s p inted %t that e?cept 4 r the peri d 4 4 %r days that they had g ne t a&&egati n !ade by the h%sband

Mahaba&esh(ar, there is n

ig h

5e p&aced re&iance %p n the decisi n

4 the S%pre!e * %rt in

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that the (i4e therea4ter a&s c ntin%ed t re4%se t have se?%a& interc %rse. On g ing thr %gh the evidence, (e 4ind this is s . )h%s, j%st d%ring 0 t n the basis 4 the evidence 4 the resp ndent that

# days that they (ere in Mahaba&esh(ar the (i4e

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

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

4 r re4%sa& t have se?%a& interc %rse d%ring this peri d i.e. her !enstr%a& cyc&e (as g ing n.

In the case

c nsidering severa& j%dg!ents has

ba y

2009 637 M,.L.J. 6SC7 143" the S%pre!e * %rt, a4ter bserved that Ai4 it is the nat%re 4 the

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

om

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 reas nab&e r inj%ri %s 4 r hi! t 4 in4erence t &ive be

apprehensi n that it (i&& be har!4%&

(ith the resp ndent %&ti!ate&y is a !atter dra(n by taking int e44ect acc %nt the nat%re

4 S%/.* !.5%& V-. S%0,)& !.5%&2

ig h

It is a&s t be n ted that the (i4e has given a va&id e?p&anati n

n the c !p&aining sp %se. 4 cr%e&ty t

Chether

been g%i&ty

ther is essentia&&y a >%esti n

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4 c nd%ct and its ne sp %se has 4 4act
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and previ %s&y decided cases have &itt&e, i4 any, va&%e. * %rt is e?pected t c nditi n

)he

bear in !ind the physica& and !enta&

sh %&d c nsider the i!pact

4 the pers na&ity and c nd%ct

ne sp %se n the !ind 4 the ther (eighing a&& incidents and >%arre&s bet(een the sp %ses 4r ! that p int 4 vie(.A

'-

)he S%pre!e * %rt in the case 4 N.811* !9,:) V-.

N11:% !9,:); 2003647 M,.L.J. 6SC7 242 (hi&e dea&ing (ith an

seeking a decree

appea& arising 4r ! a !atri! nia& petiti n 4i&ed by the h%sband 4 div rce n the gr %nd 4 cr%e&ty, has

adj%st!ent and respecting therDs 4a%&t t

ba y

bserved that Athe 4 %ndati n 4 a s %nd !arriage is t &erance, ne an ther. ) &erance t each

a certain bearab&e e?tent has t

ig h

om

every !arriage, Petty >%ibb&es, tri4&ing di44erences sh %&d n t be e?aggerated and !agni4ied t destr y (hat is said t have

been !ade in heaven. A&& >%arre&s !%st be (eighed 4r ! that p int 4 vie( in deter!ining (hat c nstit%tes cr%e&ty in each

partic%&ar case and as n ted ab ve, a&(ays keeping in vie( the physica& and !enta& c nditi ns and s cia& stat%s. A t 4 the parties, their character

technica& and hypersensitive appr ach

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4 be inherent in
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4 the parties as (e&& as their s cia& stat%s, and

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( %&d be c %nter pr d%ctive t )he * %rts d n t have t

the instit%ti n

4 !arriage.

dea& (ith idea& h%sbands and idea&

In the present case, n ne

4 the incidents

c nd%ct 4 the resp ndent c %&d be ter!ed as int &erab&e.

se?%a& interc %rse d%ring 0 t # days peri d d%ring (hich they had g ne t Mahaba&esh(ar 4 r h ney! n, h%sband has

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

partic%&ars have been stated by the resp ndent and n&y vag%e and genera& a&&egati ns have been !ade by hi!. )hese, in %r

om

pini n, are n t s%44icient t

ba y

As 4ar as these a&&egati ns are c ncerned, n

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

ig h

''

$esides the a&&egati ns that the (i4e re4%sed t

pr ve that the (i4e treated hi!

(ith cr%e&ty.

'2

)he h%sband has tried t

c ntend that

and 2<th =an%ary, 2-'- his (i4e (ent t

"ashik 4 r

despite the 4act that he had advised her n t t t d s as they (ere ne(&y !arried. )he !arriage had taken p&ace n

C ou
4 the a&&eged have !ateria& n 2#th, 2;th 44ice ( rk
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(ives. It has t dea& (ith partic%&ar !an and ( !an be4 re it.A

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7.'2.2--9. )his !eans that a4ter 'E ! nth the (i4e had g ne t "ashik 4 r

4 the !arriage,

44ice ( rk. It is an ad!itted

necessary 4 r her t

44ice ( rk, n

(ith her 4 r g ing t "ashik.

5ence, g ing t "ashik n 44ice

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

'0

@ven i4 it is ass%!ed that a&& the a4 re!enti ned

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

a character and gravity s

sti&& in %r pini n, the c nd%ct 4 the appe&&ant (as n t 4 s%ch as t give rise t a reas nab&e

har!4%&

ba y

apprehensi n in the !ind

r inj%ri %s 4 r hi! t

ig h

4 the resp ndent that it (i&& be &ive (ith her r it ( %&d be r

i!p ssib&e 4 r the! t

&ive t gether (ith %t !enta& ag ny

om

t rt%re. In the

ther ( rds, the resp ndentDs c nd%ct (as n t

s%ch that n reas nab&e pers n ( %&d t &erate it. Parties t the !arriage, tying n%ptia& kn t, are s%pp sed t %ni n 4 t( s %&s. bring ab %t the 4 & ve,

It creates a ne( re&ati nship

a44ecti n, care and c ncern bet(een the h%sband and (i4e and that it brings t( a&& (ed t 4a!i&ies t gether. S%ch ties cann t be

be severed

n the gr %ndsFincidentsFc nd%ct (hich

C ou
4a%&t can be 4 %nd
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4act that the (i4e (as ( rking and in s%ch case, i4 it (as

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are

rdinary (ear and tear

4 !atri! nia& &i4e.

" ne

4 the

a4 re!enti ned incidents r c nd%ct 4 the (i4e, in %r pini n, c %&d be ter!ed as Agrave and (eightyA t ca%se 4 r cr%e&ty. be treated as the

It is tr%e that the ( rd Acr%e&tyA is n t say as t (hen the

de4ined and, there4 re, it is n t p ssib&e t c nd%ct

4 ther sp %se c nstit%tes cr%e&ty, h (ever, the d

have t

be granted in every case

ig h

4 cr%e&ty cann t be

pened s

(ide

ther(ise div rce (i&& 4 inc !patibi&ity 4

te!pera!ent. )hat (as n t the intenti n

4 div rce.

'#

ba y

)herea4ter, the case

the gr %nd

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

4 the resp ndent is that the 44ice

appe&&ant %sed t

(ear shirt and pant (hi&e g ing t

om

(hich (as n t &iked by hi!. )he appe&&ant and the resp ndent are b th ed%cated pers ns. $ th are ( rking. It is n t his case that she %sed t 44ice. 2 (ear shirt and pant every day (hi&e g ing t

king t the strata 4 the s ciety 4r ! (hich they are (ear shirt and pant

c !ing, ass%!ing that the (i4e %sed t (hi&e g ing t c nd%ct 44ice n 4e(

ccasi ns, it ( %&d n t be s%ch grant div rce n the

n the part

4 the (i4e as t

C ou
r 4 2egis&at%re (hen
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gr %nd 4 cr%e&ty.

by the h%sband is that the (i4e treated hi! (ith cr%e&ty 2.2.2-'- (hen she ret%rned h !e 4r ! )he resp ndent tried t

c nvince the (i4e t

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

parents c nvinced her and she did n t &eave the h %se that

parents and they c nvinced her and she (as c nvinced.

om

'<

ba y

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

In the case

6199<7 SCC 104"

incident is c ncerned, it is n ticed that the h%sband and his

4 S,9',. R.*) V-. M.0,%;.& R100)2 ccasi n t

the S%pre!e * %rt had an 4 cr%e&ty.

e?a!ine the c ncept

* %rt has interpreted the ( rd Acr%e&tyA. )he Acr%e&tyA (hich has n t been de4ined in the Act, th %gh it has been speci4ica&&y %sed in Secti n '09':9ia: 4 the Act, the S%pre!e * %rt 4 c nd%ct 4 ne (hich

bserved that Athe cr%e&ty is a c %rse

ig h

pr per and d%ti4%& !anner. )here%p n, she picked %p >%arre&

In this case, the S%pre!e

C ou
n 44ice at '-.-- p.!. behave in a
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)he &ast incident

n (hich re&iance has been p&aced

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is adverse&y a44ecting the ther. )he cr%e&ty !ay be !enta& r physica&, intenti na& >%esti n r %nintenti na&. I4 it is physica&, it is a

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 reas nab&e apprehensi n that it ( %&d be har!4%&

in4erence t be dra(n by taking int c nd%ct and its e44ect

ig h

inj%ri %s t

&ive (ith the

ther, %&ti!ate&y, is a !atter acc %nt the nat%re

n the c !p&aining sp %se. )here !ay, 4 itse&4 is

bad en %gh and per se %n&a(4%&

h (ever, be cases (here the c nd%ct c !p&ained

r i&&ega&. )hen the i!pact r

int

i4 the c nd%ct itse&4 is pr ved

ba y

the inj%ri %s e44ect

n the

ther sp %se need n t be en>%ired

r c nsidered. In s%ch case, the cr%e&ty (i&& be estab&ished r ad!itted. )he absence 4

om

intenti n sh %&d n t !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. Intenti n is n t a necessary

e&e!ent in cr%e&ty. )he re&ie4 t the party cann t be denied n the gr %nd that there has been n treat!ent.A de&iberate r (i&&4%& i&&,

C ou
r 4 4 the
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4 4act and degree. I4 it is !enta&, the en>%iry !%st

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'B

)he !arried &i4e sh %&d be assessed as a (h &e and a ver certain peri d (i&& n t a! %nt t

cr%e&ty. )he i&&,c nd%ct !%st be preceded 4 r a 4air&y &engthy peri d (here the re&ati nship has deteri rated t that beca%se 4 the acts and behavi %r

4 a sp %se,

!ay a! %nt t !enta& cr%e&ty. Mere trivia& irritati ns, >%arre&s, n r!a& (ear and tear 4 !arried &i4e (hich happens in day t 4

div rce

n the gr %nd

H
rder

day &i4e in a&& 4a!i&ies ( %&d n t be ade>%ate 4 r grant 4 cr%e&ty.

4 the

ba y

and reprehensib&e c nd%ct a44ecting physica& and !enta& hea&th ther sp %se !ay &ead t !enta& cr%e&ty. )here is n

evidence t that e44ect in the present case.

om

'7

Ce have a&ready veri4ied a&& the a&&egati ns !ade in 4 b th

the petiti n, (ritten state!ent as (e&& as the evidence

the parties. On g ing thr %gh the sa!e, (e are satis4ied that n the basis 4 s%ch instances, the !arriage cann t be 4 the !atter, the appea& is a&& (ed. dated '9.'2.2-'2 passed by the

diss &ved. In this vie( )he j%dg!ent and

ig h

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

On&y s%stained %nj%sti4ied

C ou
an e?tent ne party
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4e( is &ated instances

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8a!i&y * %rt " .2, M%!bai in Petiti n " . A,#'9

4 2-''

thereby diss &ving the !arriage bet(een the parties, by a decree 4 div rce, is set aside. '9 2" rder as t c sts.

1ecree be dra(n %p acc rding&y.

#SHRI. P.N.DESHMU!H" J.$

kandarkar

om

ba y

H
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ig h

#SMT. V.!.TAHILRAMANI" J.$

C ou

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