- (1.) 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 owing to the impotence of the Appellant under Section 12 (1) (a) of the Hindu Marriage Act, 1955 (for short, "the said Act") and in the alternative for divorce on the ground of cruelty under Section 13 (1) (ia) of the said Act. The Judge of the Family court held that both these grounds were established and has granted a decree on both the prayers. Being aggrieved by that judgment and order, the present Appeal has been filed.
(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 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. 1500/- 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.
(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 hot attend her. Even a'fter 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) Inspite 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 contenced that the Appellant was working as a contractor in cloth looms business at Bhiwandi and her income was Rs. 3,000/ per month. ;