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wife refused to give her salary to the husband, it can not be considered as cruelty- immediately after the delivery of the child, the appellant demanded money from the wife and as discussed above, when the wife was feeding the child, he was demanding money from her and infact, on the subsequent days, he was demanding money from her. If any cruelty is to be attributed, in our view, it can be attributed to the appellanthusband and not to the wife. In the evidence, the appellant has not given any particulars about the insulting behaviour of the wife, except stating that she used to insult in presence of her relatives. After the marriage, the wife is not executing slavery bond that she will not speak anything. The wife is entitled to have a voice in the family and she is expected to have her voice by expressing her views. On absolutely flimsy grounds as stated above, the appellant has tried to get marriage dissolved by getting decree for divorce when out of the said wedlock, there is a child who is minor. In our view, the Family Court rightly dismissed the marriage petition, as on such a flimsy and trifle ground, the solemnized marriage should not be ssp 6 FCA 151 of 2011 allowed to be dissolved by such act of the appellanthusband. The real sufferer is the child and the respondent wife is also subjected to suffering as the appellant is not permitting her to come back to the matrimonial home. The Family Court therefore, rightly allowed the counter claim filed by the respondent wife, allowing the restitution of conjugal rights. 9. Learned counsel for the respondent submits that the appellant is now residing in Norway and is earning 37000 Norway currency. In spite of the said fact, he is not looking after his wife and child. It will be open to the respondent wife to try to get the social security number of the appellanthusband, on the basis of which she can point out to the Indian High Commission as well as the Norway Government that the appellanthusband is not maintaining the child and wife, as it is informed to the Court that he is not sending any amount of maintenance. On the basis of social security number, the concerned Indian High Commission at Norway can very well find out the name of the employer of the said appellant, which name can be given to the respondent wife and on the basis of which, the respondentwife can take out appropriate proceedings against the appellant and can send a copy of this order to the concerned employer, so that the employer can deduct the amount of maintenance and send the same to the wife in India at her address, as it is a matter of child protection and the amount in question is required to be ssp 7 FCA 151 of 2011 spend for the protection of child. The respondentwife is free to take out such proceedings in accordance with law and as deemed fit. 10. In view of what has been stated above, we do not find any substance in the above Family Court Appeal, which is accordingly dismissed with no order as to costs. 11. In view of the dismissal of the Family Court Appeal No.151 of 2011, the Civil Application No.317 of 2011 does not survive and the same is accordingly dismissed.

ssp 1 FCA 151 of 2011

In Matrimonial Harmonics (1805), Gillray caric...

In Matrimonial Harmonics (1805), Gillray caricatured the resulting marriage. Over the mantel is an image of Cupid inscribed RIP. (Photo credit: Wikipedia)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.151 OF 2011
WITH
CIVIL APPLICATION NO.317 OF 2011
IN
FAMILY COURT APPEAL NO.151 OF 2011
Mr.Umesh Manohar Waidande,
Age 37 years, Occu – Unemployed,
R/at Sankalp Nagar C/A/203, Near Kalwa
Swimming Pool, Kalwa, Thane – 400 605. …..Appellant
versus
Mrs.Trupti Umesh Waidande,
Age 27 years, Occu – Service,
R/at C/o Mr.Shrirang Waghmare,
6A/104, Mangaldeep Society,
Manisha Nagar, Kalwa, Thane – 400 605. ….. Respondent
Mr.P.P.Kulkarni, for the appellant.
Mr.G.N.Salunke with Mr.S,.G.Swami, for the respondent.
CORAM: P.B.MAJMUDAR &
ANOOP V. MOHTA, JJ.
DATE: 10TH APRIL, 2012
ORAL JUDGMENT ( PER P.B.MAJMUDAR, J. ) :1.
By way of this appeal, the appellant, who is husband of the
respondentwife,
has challenged the judgment and order of the Family
Court, by which the Family Court, Thane, dismissed the petition filed by
the appellanthusband
being Marriage Petition No.209 of 2006. The
appellanthusband
filed the aforesaid Marriage Petition for getting decree
ssp 2 FCA 151 of 2011
for divorce on the ground of cruelty and desertion. It is the case of the
appellant that his wife used to quarrel with him frequently in the presence
of other family members and she was not parting with the salary which
she is earning out of the employment, as he was having financial
difficulties. The aforesaid behaviour of the wife i.e. insulting the husband
and not parting salary in his favour, is treated to be a ground for cruelty,
for which a Marriage Petition was filed. The other ground for divorce
which was pressed into service was the ground of desertion.
2. The learned Judge of the Family Court after considering the
evidence on record, came to the conclusion that there is absolutely no
justification in dissolving the marriage. The Family Court negatived both
the points regarding cruelty as well as desertion and dismissed the
Marriage Petition filed by the appellanthusband.
The respondentwife
has filed a counter claim regarding the restitution of conjugal rights. The
said counter claim was allowed and decreed in favour of the respondentwife
and the Family Court directed the appellant to join the respondent
and render conjugal rights to her and also directed to pay maintenance @
Rs.5,000/p.
m., for the minor son till he resumes cohabitation.
3. The marriage between the appellant and respondent took
place in the year 2001 and out of the said weklock, there is also a minor
son who is 9 years of age. In so far as the ground about cruelty is
ssp 3 FCA 151 of 2011
concerned, it is required to be noted that except stating in the evidence
that the respondentwife
used to insult the husband, he has not given any
cogent particulars about the nature of cruelty. In para No.4 of the affidavit
in lieu of examinationinchief,
the appellanthusband
has stated that at
the time of marriage, it was decided between both the parties that
marriage expenses will be shared equally. He further stated that the sister
of the respondentwife
is having quarrelsome nature and she does not
respect elders.
5. In para No.5, the appellant has deposed that the
respondent is a women of independent and selfish nature and was doing
the things which she like and decide. She used to take guidance of her
mother who is residing nereby. He has further stated that prior to the
marriage, the respondent told her that she would share her salary with
him, but after the marriage, she did not share her salary with him. In
para No.6 of the affidavit, the appellant has averred that the respondent
used to pick up quarrels petty reasons and used to abuse him in filthy
language and she used to insult him in presence of relatives. In the
evidence, the husband has also stated that on all matters, she used to
consult with her mother. He stated that since last three years she is
residing with her parents and deprived him of his matrimonial rights.
6. In the crossexamination,
he has admitted the fact that the
ssp 4 FCA 151 of 2011
dispute between him and respondentwife
arose on the issue of money 1012
after her delivery. He admitted that the demand of money was made
by him on two occasions during the delivery of the respondent. The
respondent was having bank account in her single name and there was no
joint account. He further admitted that when for the first time after her
delivery, I demanded money from her, the respondent told him that she
will discuss this issue on the next day as she is feeding the child and
accordingly, again on the next day, he went to her parents house for
discussing the money issue. The respondent expressed her inability to pay
the money to the appellant.
7. The learned Judge of the Family Court has considered the
evidence in proper perspective and found that the appellant has failed to
make out any case about the cruelty. As a matter of fact, the respondent in
her evidence stated that so far as ground of desertion is concerned, she has
filed a counter claim regarding restitution of conjugal rights. In her
evidence, she has stated that the appellant is not her back to the
matrimonial house as he did not want to cohabit with her. Considering
the evidence on record, the Family Court allowed the counter claim
regarding restitution of conjugal rights.
8. We have gone through the judgment and order of the
Family Court and have gone through the oral evidence which is made
ssp 5 FCA 151 of 2011
available with the appeal proceedings. It is required to be noted that
simply because wife is earning and did not part with her salary in favour
of the husband, can never be treated as a ground for cruelty on the part of
the wife to the husband. It is very distressing that on such a trifle ground,
the appellant has deserted her wife and is not keeping her with him,
though there is a child out of the said wedlock. It has come in the
evidence that immediately after the delivery of the child, the appellant
demanded money from the wife and as discussed above, when the wife
was feeding the child, he was demanding money from her and infact, on
the subsequent days, he was demanding money from her. If any cruelty is
to be attributed, in our view, it can be attributed to the appellanthusband
and not to the wife. In the evidence, the appellant has not given any
particulars about the insulting behaviour of the wife, except stating that
she used to insult in presence of her relatives. After the marriage, the
wife is not executing slavery bond that she will not speak anything. The
wife is entitled to have a voice in the family and she is expected to have
her voice by expressing her views. On absolutely flimsy grounds as stated
above, the appellant has tried to get marriage dissolved by getting decree
for divorce when out of the said wedlock, there is a child who is minor. In
our view, the Family Court rightly dismissed the marriage petition, as on
such a flimsy and trifle ground, the solemnized marriage should not be
ssp 6 FCA 151 of 2011
allowed to be dissolved by such act of the appellanthusband.
The real
sufferer is the child and the respondent wife is also subjected to suffering
as the appellant is not permitting her to come back to the matrimonial
home. The Family Court therefore, rightly allowed the counter claim filed
by the respondent wife, allowing the restitution of conjugal rights.
9. Learned counsel for the respondent submits that the
appellant is now residing in Norway and is earning 37000 Norway
currency. In spite of the said fact, he is not looking after his wife and
child. It will be open to the respondent wife to try to get the social security
number of the appellanthusband,
on the basis of which she can point out
to the Indian High Commission as well as the Norway Government that
the appellanthusband
is not maintaining the child and wife, as it is
informed to the Court that he is not sending any amount of maintenance.
On the basis of social security number, the concerned Indian High
Commission at Norway can very well find out the name of the employer of
the said appellant, which name can be given to the respondent wife and
on the basis of which, the respondentwife
can take out appropriate
proceedings against the appellant and can send a copy of this order to the
concerned employer, so that the employer can deduct the amount of
maintenance and send the same to the wife in India at her address, as it is
a matter of child protection and the amount in question is required to be
ssp 7 FCA 151 of 2011
spend for the protection of child. The respondentwife
is free to take out
such proceedings in accordance with law and as deemed fit.
10. In view of what has been stated above, we do not find any
substance in the above Family Court Appeal, which is accordingly
dismissed with no order as to costs.
11. In view of the dismissal of the Family Court Appeal No.151
of 2011, the Civil Application No.317 of 2011 does not survive and the
same is accordingly dismissed.
( ANOOP V. MOHTA, J. ) ( P.B.MAJMUDAR, J. )

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