Biren Vaishnav, J
1. First Appeal No.1445 of 2024 was filed by the appellant wife who was respondent in Family Suit No.231 of 2013. Family Suit No.231 of 2014 was filed by the respondent – husband praying for a dissolution of marriage by passing a decree of divorce under Section 13(1) of the Hindu Marriage Act. By a judgement and order dated 05.03.2024, the Family Court at Rajkot allowed the respondent’s family suit and declared that the marriage stands dissolved on the ground of cruelty.
2. First Appeal No.1759 of 2024 is filed by the appellant wife. Family Suit No.288 of 2012 filed by the wife under Section 9 of the Hindu Marriage Act for restitution of conjugal rights was dismissed.
3. Learned counsels for the respective parties have, for the purposes of this judgement, argued First Appeal No.1445 of 2024.
4. Brief facts of the case are as under:
4.1 The parties to this appeal had entered into wedlock on 12.03.2012. The case of the husband before the Family Court praying for divorce was that it was the second marriage of the appellant herein. Both parties had come into contact with each-other through internet. Initially there were reservations from the husband’s family on the marriage, however, the respondent-husband convince the families to get married.
4.2 The respondent filed petition under Section 13 of the Hindu Marriage Act stating that both the husband and wife were doctors. The husband was working at Bhavnagar and on he passing the GPSC examination, had shifted to Rajkot. The case of the husband before the Family Court in Section 13 application was that the respondent during the course of discussions to enter into marriage did not disclose the fact that the wife was suffering from Thalassemia. It was the case of the respondent husband that the wife continued to humiliate the parents of the husband-respondent herein. At one such instance, when the wife quarreled with the husband on 29.07.2012, the wife’s father had to be called to Bhavnagar. She threatened that she would hang herself by tying a Dupatta in her neck. It was therefore the case of the husband/defendant in FA No.1445 of 2024 that it was not possible to stay with the wife. He too, suffers from “Thalassemia Minor” whereas the wife did not disclose this fact. Pending the petition for divorce filed by the husband and pending an application for restitution filed by the wife, by way of an interim arrangement, the parties stayed together and went to Srinagar. It was during their stay there that the wife conceive and therefore a daughter was born. It is the case of the appellant that she was compelled to do abortion as the family wanted a son. On the other hand, the version of the husband before the Family Court was that as per the medical advise, the doctors had suggested that since the wife was Thalassemia Minor, she should terminate her pregnancy, to which, she did not agree. Compounded with this fact, his father-in-law through an MLA has made complaints to the employer of the husband against the character of the husband and therefore recommended that disciplinary action be taken. This therefore, in the perception of the husband, tantamount to cruelty. The Trial Court in the Family Suit filed for divorce by the husband, observed that there was concealment of ailment of Thalassemia Minor by the wife. Due to an adamant behavior of hers, she refused to undergo test when she conceived. There were medical complications as a result of which the doctors suggested her not to proceed with the pregnancy. From the evidence on record, the Trial Court found that because of the concealment of her ailment there was derailment of marriage. The story of the wife that she was compelled to abort as the family wanted a boy and not a girl child was not believed by the Family Court. The story of the wife that she was administered an abortion pill was also not accepted. Further, the Family Court observed that based on the complaint made by the wife for getting ‘Stri Dhan’ and by putting pressure on the police authorities through a letter of MLA on the police and also through another letter of MLA seeking departmental action tantamount to cruelty and therefore the respondent husband was entitled to a decree of divorce on these grounds.
5. Mr.S.P.Majmudar learned advocate for the appellant has made the following submissions:
5.1 Mr.Majmudar would submit that the Family Court did not consider the evidence of the husband. In the present suit as well as in the cross-examination which states that the husband did not make any efforts to reconcile with the wife. He would take us to the relevant portion of the cross-examination where the statement of the husband is elicited.
5.2 He would further submit that from the cross-examination of the respondent-husband, it is clear that his family members did not also make any attempts to reconcile or make attempts for compromise with the appellant which shows that from the very beginning the family members and the husband wanted to take the divorce.
5.3 The fact that the appellant wanted to stay together with the husband, was evident from the fact that she had filed an application for restitution of conjugal rights within nine months in the year 2012.
5.4 Mr.Majmudar would submit that the Family Court was wrong in arriving at a finding that the appellant had hidden the fact of she having Thalassemia Minor. She had clearly disclosed in the G-mail chat that she was having Thalassemia Minor. The G-mail chat was wrongly interpreted. She has specifically answered “yes” to the question whether she was suffering from Thalassemia Minor.
5.5 From the evidence on record, it had become very clear that the respondent had given the appellant abortion pill as he did not want any children. The husband never sought the custody of daughter Nayra. Nayra was cured of the disease when the mother-the present appellant had given her bone-marrow and therefore the ground that she suffered from Thalassemia Minor was not available to the appellant.
5.6 Mr.Majmudar would submit that the mother’s decision to continue pregnancy cannot be treated as mental cruelty when the daughter was cured of Thalassemia and even otherwise bone-marrow transplant had cured the daughter.
5.7 Mr.Majmudar would submit that allegations of threat, abuse and suicide by the appellant were not true by a single piece of evidence.
5.8 He would submit that the appellant had never addressed any communication to the college to damage the reputation of the respondent. The communications relied upon and written by Ex-MLA cannot be taken on record particularly when, the MLA was not categorically examined. Moreover, mere cruelty cannot be a ground for granting of a divorce.
5.9 Mr.Majmudar would submit that the learned Family Court Judge has considered the case of the respondent-husband beyond the pleadings.
5.10 Mr.Majmudar would submit that only acts committed post marriage can be considered as cruelty and factors such as G-mail chat prior to the marriage, cannot compute cruelty.
5.11 Mr.Majmudar would assail the judgement of the Family Court on the ground that it has taken the judicial notice of facts and allegations which is impermissible as per Sections 56 and 57 of the Indian Evidence Act. The learned Judge has taken judicial notice of the fact the appellant being a qualified doctor believed such a thing that there existed a medicine which had the capacity to change the sex of the child. Similarly the Family Court had taken the judicial notice of the fact that despite the father of the appellant coming to the Court with the appellant, he has not been examined.
5.12 Mr.Majmudar would submit that the Family Court had considered the grounds which were subsequent to the divorce proceedings. He would rely on the following judgements:
I. In case of Mangayakarasi v. Yuvraj reported in 2020 (3) SCC 787.
II. In case of Suman Singh v. Sanjay Singh reported in 2017 (4) SCC 85.
III. In case of Ramchander v. Ananta reported in 2015 (11) SCC 539.
IV. In case of Naresh Somdatta Gupta v. Pragna W/o Naresh Gupta reported in 2016 (0) GUJHC 36336.
V. In case of Pramodkumar C. Shah v. Rajulben Pramodkumar Shah reported in 2013 (2) GLH 630.
VI. In case of Gajendrasinh Hemtuji v. Peenakunver W/o Gajendrasinh Hemtuji reported in 2015 (0) AIR (Guj) 132.
VII. In case of V. E. Maya v. K.S. Vetrivel rendered in SLP No.11761-11762 of 2022.
VIII. In case of Bachhaj Nahar V. Nilima Mandal AND Another reported in (2008) 17 SCC 491.
IX. In case of K. Srinivas Rao V. D.A.Deepa reported in 2013 (5) SCC 226.
X. In case of Rami Narasimha Sastry v. Rani Suneela Rani reported in 2020 (18) SCC 247.
XI. In case of Joydeep Majmudar v. Bharti Jaiswal Majmudar reported in 2021 (3) SCC 742.
XII. In case of Sivasankaran v. Santhimeenal reported in 2022 (15) SCC 742.
XIII. In case of Rakesh Raman v. Kavita reported in 2023 SCC OnLine SC 497
XIV. In case of Dipti v. Pradhot Natvarbhai Vasaiya reported in 2023 SCC OnLine Guj 1832
6. Mr.D.M.Devnani learned counsel for the respondent husband would make the following submissions:
6.1 It is evident from the written statement filed by the appellant before the Family Court that the appellant had on many occasions expressed dislike for the parents-in laws. In the written statement she had stated that despite being serving as a Radiologist, she was compelled to do household work and her father-in-law, mother-in-law and sister-in-law used to taunt her. He would submit that the appellant refused to stay with the family at Rajkot and also after filing a suit for restitution of conjugal rights stated in a written statement that she had filed a family suit and that she was forced to take medication from a Saint in Vadodara for converting the sex of her child from girl to boy.
6.2 Mr.Devnani would submit that the wife had filed a complaint under the provisions of the domestic violence Act against the father-in-law, mother-in-law and elder sister of the respondent, husband of the sister, sister of the opponent. He would submit that not only are the family members of the opponent are facing prosecution under the Domestic Violence Act, but the uncle and the aunt who were residing at Mumbai are also arraigned as accused in the said proceedings.
6.3 Taking us through the examination-in-chief, Mr.Devnani would submit that she had made unwarranted allegations against the family inasmuch as, a pressure to attend the priest at Vadodara. It was specifically stated by her that such allegations are made on instructions of an advocate.
6.4 Mr.Devnani would further submit that it was an admitted fact in her cross-examination in the family suit for restitution of conjugal rights that it was by mistake that she was given medicine for abortion.
6.5 On the question of cruelty, which on submission of Mr.Devnani was rightly considered, it had come on record that one Ex-MLA viz. Madhubhai Babriya had moved an application at the instance of the father of the appellant. The MLA had also addressed a letter to the Home Minister pursuant to which police action was taken against the opponent for recovery of Stri-Dhan. All these resulted in the opponent undergoing severe stress and trauma. The opponent felt insulted in front of his colleagues and superiors because of the recommendation made by the MLA that departmental action be taken against the opponent as he was having extramarital affair. Even during the cross-examination in context of the complaint before the Mahila Police Station, the appellant refused to identify the signature of her father.
6.6 Mr.Devnani would submit that despite being a qualified doctor to make allegations of nature of she being forced to meet the priest at Vadodara so that the sex of the child can be changed are beyond comprehension. Mr.Devnani would also invite our attention to the fact that within 10 days of passing of his father, she made a statement that because of the opponent’s behavior, she was constrained to file a complaint before the police where he gave an undertaking that he would behave well.
6.7 Mr.Devnani would also take us through the conversations between the appellant and the opponent recorded in the G-mail chat to submit that she had responded in context of a question whether she has Thalassemia Minor by confirming in negative. It has come on record that even in the examination she had made averments which indicate that she had not positively stated at any stage that she was Thalassemia Minor till December 2015. At no juncture did she disclose that she had Thalassemia Minor.
6.8 Mr.Devnani would submit that the appellant did not produce a single document pertaining to her delivery and medical papers to indicate that she was pressurized into undergoing abortion.
6.9 Mr.Devnani would take us through the facebook chat dated 30.09.2012 where the appellant having expressed her love for the opponent. However, it was an admitted fact that her conduct with the family of the opponent was not right. This substantiated the averments made in the application for divorce where it was the allegation of the opponent that the appellant would address the father and mother of the opponent as ‘Dosa-Dosi’.
6.10 With regard to the allegation of abortion that she was forced to consume an abortion pill, Mr.Devnani would submit that this was a classic example of cruelty that for the reason that in the cross-examination of the appellant in family suit no.288 of 2012, she had clearly stated that the pill was given by mistake. Therefore there were different versions on record in the family suit for divorce and her stand in the family suit for restitution of conjugal rights.
6.11 She had made substantiated allegations that she was compelled to deposit an amount of Rs.10 lakhs in her account which was later on transfer to a branch in Jagnath. He would submit that she had gone to the extent of saying that she would need air conditioning.
6.12 On the question of alimony, Mr.Devnani would submit that even in case of grant of divorce, there is no provision for alimony. However, it would be appropriate to submit that since both the appellant and the respondent are doctors and settled in life, this Court may not grant alimony as the opponent has already at one point of time spent Rs.25,00,000/- towards the treatment of the daughter and has been continuously paying an amount of Rs.25,000/- per month to the daughter without a single default and has so far paid an amount of Rs.22,60,000/-. Therefore, in all an amount of Rs.47,60,000/- has been spent. However, Mr.Devnani states that the opponent undertakes to pay a reasonable amount suggested by this Court.
6.13 He would submit that even the appeal challenging the proceedings of restitution which has been dismissed needs to be confirmed. He would therefore submit that both the appeals of the appellant wife deserves to be dismissed.
7. Having considered the submissions made by the learned counsels for the respective parties, we note that the wife is in appeal against orders passed in two proceedings. In both proceedings, in one where she prayed for restitution of conjugal rights and the other where she has faced dissolution of marriage on an application filed by the husband under Section 13 of the Hindu Marriage Act on the ground of cruelty. She has been unsuccessful. Since, the outcome of the restitution appeal would depend on our decision in the appeal filed by her challenging the decree of divorce, we deem it fit to decide the First Appeal No.1445 of 2024 filed by the wife challenging the order of the Family Court by which the marriage has been dissolved by allowing the respondent’s petition holding that there were grounds of cruelty meted out by the appellant-wife to the husband. We have perused the copy of the plaint filed by the respondent filed before the Family Court seeking a divorce on the ground of cruelty.
7.1 Briefly stated, at the cost of reiteration, the husband had approached the Family Court for divorce from his wife on the ground that the appellant had entered into a marriage with the husband after she had secured a divorce from the first marriage. In other words, this was a second marriage of the appellant-wife. Their marriage was a result of internet chats wherein, the respondent-husband made his side of the life’s portrait clear and transparent. According to him, he has disclosed to the wife that he was suffering from Thalassemia Minor. During the course of a G-mail chat which is on record before the Trial Court and which we have been taken through, it appears that he asked the appellant-wife that since he is suffering from Thalassemia Minor, does she too have the same? The response that he got was that she denied that she had Thalassemia Minor based on her declaration that she had got it checked when she was in first year of MBBS. When it was found that she wasn’t suffering from Thalassemia Minor, prompted the respondent to propose that they marry despite opposition of the parents of the husband - respondent herein. Suggestive questions have been put in the cross-examination to both husband and wife on the sequence of G-mail chat and the order of question and answers that need to be examined to come to a conclusion that the wife had in fact not disclosed to the respondent herein that she too suffered from Thalassemia Minor. Taking shelter of a technical proposition that the order in the G-mail chat of responses made would suggest stewed priorities. It was sought to be canvassed by and on behalf of the wife that in fact, the answer yes in the G-mail chat was for an admission of her conceding that she had Thalassemia and the answer ‘yes’ was not in response to a statement of fact that she had got herself checked and found that she had no Thalassemia.
7.2 As the evidence unfolds which we will discuss during the course of our judgement, it was only when the couple conceive and when a test had to be undergone in December 2015, did the husband-respondent realized on conception of a child that the wife had Thalassemia Minor. It appears that the separation of the parties post the marriage happened in July, 2012. The appellant left the matrimonial home. On that day the wife after carrying her belongings, walked out of her house. Having done so, she filed an application for restitution of conjugal rights which was also considered and the parties by way of an interim settlement decided to stay together.
7.3 Be it noted that it was on 12.03.2012 that the parties got married. Husband-respondent herein on passing GPSC examination shifted to Rajkot on 31.07.2012, while the appellant was still working at Bhavnagar. Five months after the husband shifting to Rajkot, the appellant filed an application for restitution of conjugal rights. It was her case that she left her job at Rajkot and started living at Bhavnagar. However, since there was harassment from in-laws, she continued to stay at Bhavnagar when the respondent-husband shifted to Rajkot. On the compromise arrived at between the parties, purely temporary, both husband and wife started residing together at Rajkot. A pursis was filed on 06.03.2014 by both husband and wife. On 17.06.2014, both had gone to Srinagar and it is during this period of time that the appellant conceived a baby. This was around 14.08.2014. After a trip to Srinagar, they returned and then the wife separated from the husband. The wife had her parents at Bhavnagar whereas the husband was residing at Rajkot.
7.4 The evidence brought forth by the husband-respondent herein suggests that on conceiving a child, the husband took the wife to a hospital viz. Angel Hospital. This was with a clue that they would have a test whether the fetus had traits of Thalassemia which the father had. On insisting for a test and finding that the delivery of a child would be complicated, from the examination and cross-examination of the respondent-husband, it has come on record that the doctors at the Angel hospital opined that the appellant wife should terminate her pregnancy to avoid complications. For this purpose, certain medications were given to her so that she could abort. The version of the wife is that the pills that were given by the doctors so that she could abort, were stopped by her. She brought some other medicine and it is her case that her in-laws insisted that she visits some priest in Vadodara who would give some medicines that would change the sex of the child from female to male. This story of the appellant wife carefully weaved to set up a case that there was a cruelty on the part of the respondent husband suggested in her cross-examination that she was being induced to go to a priest at Vadodara to take up sex change pills. We note that both the appellant and the respondent are doctors. It has come on record that they are both highly qualified. It is therefore difficult to digest the story of a doctor-wife to believe that she could be convinced to take pills from a priest to undergo a sex change. This appear to be a strengthened ground by the respondent to seek divorce on the ground that having initially hidden that she was suffering from Thalassemia Minor, it was only when a child was conceived and a medical test done, did the father not only came to know of wife suffering from Thalassemia Minor, but the child too. The husband has dislodged the burden by a statement made in the cross-examination that the wife was taken to the angel hospital for undergoing test which recommended abortion and the files were in the possession of the wife. This ground therefore has weighed with the Family Court and in our opinion rightly so in holding that the action of the wife in concealing that she had Thalassemia Minor, led to a situation where, a poor husband who conciliated in bringing her back during the pendency of the restitution proceedings, was cheated through the partner in conceiving a child to make him stand where he could not withdraw from the marriage. The story of forced abortion and coercion to take sex change pills are too far fetched to support the case of the wife that she was forced into getting her child aborted.
7.5 When we read the cross-examination of the husband and the wife, it has come on record that during the matrimonial life, the wife would insist that the parents of the respondent should not be staying with the family. Evidence on record suggests that she would abuse her in-laws and the aged parents of the respondent. It has come on the examination of the witnesses i.e. the husband and wife respectively, that at one stage she attempted to commit suicide. All these factors made a situation for the husband to plead that the marriage was not peaceful and successful and needed to be broken.
7.6 Also the Trial Court has considered the behavioral aspect of the respondent. It appears that while the mother was undergoing treatment at a hospital, it was her case that she had to summon the Mahila police because of the husband’s behavior. Police statement had to be recorded of the husband that he undertakes not to behave badly. This is taken as a tool by the wife to paint a bad picture of the husband’s character. We need to judge this in the background of the certain facts. It has come on record through the cross-examination of the wife and the husband that the father of the appellant-wife had through an Ex-MLA Madhubhai Babriya, who had written to the police and to the Health Minister. By writing a letter to the Health Minister, the father-in-law of the respondent husband had suggested that the husband had taken away their Stri-Dhan and a police complaint was therefore filed where a statement of the husband was recorded. The statement of the father in law of the husband too was recorded. When cross-examined and confronted with this complaint, the wife denied identifying her father’s complaint. On the second letter of the MLA addressed to the Health Minister, it has been projected that the husband has an extramarital affair and therefore, the employer should take disciplinary action against him. This obviously sallied the image and character of the husband in the eyes of his employer and his superiors. The contention of the learned counsel for the appellant Mr.Majmudar that the MLA should have been cross-examined is a contention which is misconceived one. The letters are produced indicating that a clear attempt was made at the hands of the father-in-law of the husband to suggest damming the character of the appellant.
7.7 We would agree with the submission of learned counsel Mr.Devnani for the respondent-husband that the twin consideration of misrepresenting on the issue of Thalassemia Minor at the hands of the wife coupled with the allegations that she was compelled to go to the priest at Vadodara so that she could consume pills for sex change cannot be believed when both the parties are qualified doctors. Secondly, the action of writing of letters by Ex-MLA Madhubhai was sufficient enough to invoke grounds of cruelty. There was a strong character assassination at the hands of the wife were grounds enough for the respondent husband to deserve a decree of divorce for dissolution of marriage on the ground of cruelty. The positive side of the husband would indicate that when the daughter on birth was found to have Thalassemia, the husband-respondent herein contributed an amount of Rs.25 lakhs for bone-marrow transplant. By taking us through the orders of the Trial Court on the aspect of maintenance and the orders passed by this Court which is a subject matter of challenge by the respondent-wife, Mr.Majmudar would challenge that the husband had challenged maintenance amounts. In fact, that is no so. The husband was concerned about the line of treatment that the child would get and even when the bone-marrow transplant was going on, he arranged to stay around for 10 days separately in a hotel so that the child deserves and gets proper medical attention. This aspect has to be taken in the positive manner and cannot be taken as a negative trait of the respondent-husband.
7.8 It is in these background of facts that the judgement cited by learned advocate for the appellant need to be considered. All the judgements cited by learned counsel for the appellant are on the facts of the case before the Court. The grounds on which the respondent husband, in the facts of the present case, on allegations are such which are grave and weighty which can be treated to be more serious than the ordinary wear and tear of married life. Even the judgement relied upon by the learned counsel for the appellant of Gujarat High Court that mere filing of a complaint before the Mahila Police Station would not amount to cruelty would not apply to the facts of the present case. The judgement of the Division Bench in the case of Gajendrasinh Hemtuji (supra) on the question of onus to prove the concealment by the wife is satisfied. Here is a case that before entering into a marriage, looking to the sanctity of the relationship it was a moral obligation of the appellant-wife to disclose that the wife had Thalassemia Minor. When positively asked, she did not disclose it. The argument of the learned counsel Mr.Majmudar for the appellant wife that non-disclosure of the circumstance prior to the marriage cannot be taken by the Family Court is misconceived. What needs to be appreciated is the fallout of this non-disclosure was compounded till the birth of the child conceived through conceit which was also found to be suffering from Thalassemia Minor compounded by the weaving of the story by the wife of she having been compelled to undergo abortion and or visiting a priest at Vadodara for taking pills for sex change of the fetus. These actions on the face of it, tantamount to cruelty meted out to the husband who deserved a decree of divorce.
7.9 Lastly on the aspect of alimony, we agree with the submission of the learned counsel Mr.Devnani for the husband that it is appropriate not to grant any alimony to the wife. The husband has already undertaken medical expenses for the treatment of the daughter for an amount of Rs.25 lakhs. He is paying maintenance of Rs.20,000/- per month to the daughter which amount has aggregated to an amount of Rs.47,60,000/- till now. However, the learned counsel for the husband has fairly conceded that if a reasonable amount is suggested to be ordered to be paid to the appellant, the same would be paid directly to the appellant wife. Keeping the nature of ailment that the daughter had and the treatment that she underwent and the care that needs to be followed for her upbringing, we direct the respondent husband to pay the appellant wife a sum of Rs.10,00,000/- as compensation keeping in mind the welfare of the child.
8. For the reasons assigned aforesaid, First Appeal No.1445 of 2024 is dismissed. Having assigned our reasons of not entertaining the appeal challenging the decree of divorce, we need not assign separate reasons in dismissing appeal no.1759 of 2024, by which wife’s application for restitution of conjugal rights are dismissed. Both the appeals are accordingly dismissed. Connected Civil Applications will also not survive and hence they stand also disposed of accordingly.
FURTHER ORDER
After pronouncement of the judgment, Mr.P.S. Datta, learned counsel for the appellants requests for stay of the aforesaid judgment. Request is rejected. Mr.Devnani, learned counsel appearing for the respondents in the appeals states that the amount of Rs.10 Lakhs as directed by this Court shall be paid by the respondent who is present in the Court, on or before 31st December, 2024.
