IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.118 OF 2006
Nitin Ramesh Dhiwar
Adult, Occupation Service,
R/o. SHBA, Monika Housing Society,
D-Building, Flat No. F-9, Near
Pimple Kale Road, Pimpri, Pune-411 017 …Appellant (Org. Petitioner)
Sou. Roopali Nitin Dhiwar
Adult, Occ: Service, R/o. Ratnakar
Ghorpade, Near Ravi Complex,
Pimpri, Pune- 411 017 ..Respondent(Org. Respondent)
Mrs. Madhavi Tavanandi for Appellant
None for the Respondent
CORAM: V.M. KANADE & P.D. KODE, JJ.
DATE: 16th August, 2012
ORAL JUDGMENT [PER: V.M.KANADE J.]
1. Heard the learned counsel appearing on behalf of the Appellant. None appears on behalf of the Respondent, though she was served.
2. The Appellant is aggrieved by the judgment and order passed by the District Judge-4, Pune on 7.9.2006, who was pleased to dismiss the petition for divorce filed by the Appellant herein.
3. Brief facts are as under: The Appellant is the husband and the Respondent is the wife (hereinafter the Appellant shall be referred to as “husband” and Respondent shall be referred to as “wife”). They got married on 12.11.2001. However, soon thereafter, there were disputes and differences between the husband and wife. A complaint was registered by the Pimpri Police Station for the offences punishable under sections 498A, 323, 504, r/w. 34 of the Indian Penal Code. I The husband filed a petition for divorce in the District Court, Pune on the ground of cruelty, inter alia, it was urged in the trial court that a false complaint was filed by the wife against the husband and his family members for the offence punishable 2/43 under section 498A, 323, 504, r/w. 34 of the Indian Penal Code.
4. It is submitted submitted that the Trial Court after perusing the evidence which was adduced by the prosecution, was pleased to dismiss the criminal complaint.
5. The learned counsel appearing on behalf of the Appellant, inter alia, submitted that this Court has consistently held that in the event a criminal complaint is filed by the wife for the offence punishable under section 498A and the said complaint has been dismissed, then in that event, an inference can be drawn by the Court that the said complaint is a false complaint and that the fact itself of filing a false complaint constitutes cruelty within the meaning of section 13(i) (a) of the Hindu Marriage Act,1956. In support of the said submission, the learned counsel for the Appellant has relied on the judgment of this Court in Family Court Appeal No. 158 of 2008 dated 6 th May, 2010 decided by the Division Bench of this Court [Coram: A.P. Deshpande & Smt. R.P. Sondurbaldota, J.J.]
6. We have perused the judgment and order of the Judicial Magistrate, First Class, Pimpri at Pune -18 in C.C. No. 1175 of 2003. We are satisfied after reading the said judgment and order that the said complaint which was filed by the Respondent is a false complaint and that is the only inference which can be drawn from the judgment and order 3/44 of the Trial Court.
7. In our view, filing of a false criminal complaint itself amounts to cruelty within the meaning of section 13(i) (a) of the Hindu Marriage Act. A similar view was taken by the Division Bench of this Court in Family Court Appeal No. 158 of 2008. The Division Bench had taken into consideration the judgment and order passed by the Trial Court of acquitting the Appellant therein for the offence punishable under section 498A r/w. 34 of the Indian Penal Code and also the deposition of the Appellant in the Trial Court. Taking our over all view, the impugned judgment and order passed by the Family Court will have to be quashed and set aside and the appeal filed by the Appellant will have to be allowed.
8. The Family Court Appeal is, accordingly, allowed and the judgment and order passed by the District Court, Pune in Marriage Petition No. 12 of 2004 dated 7.9.2006 is quashed and set aside and a decree and divorce is granted to the Appellant as prayed by him in the Petition for Divorce filed by him in the Family Court. Family Court Appeal is disposed of.
(P.D.KODE J.) (V.M. KANADE J.)