Jayant Kanaiyalal Shroff vs Yashodhara Jayant Shroff on 7 July, 2017

1 fca-148.08

pmw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.148 OF 2008

‘H’ … Appellant
Versus
‘W’ … Respondent

Mr. Shekhar Jagtap a/w Mr. Akshay Kapadia i/by J. Shekhar Co., for
the Appellant.

Ms. Sheeja John i/by M/s. M.P. Savla and Co., for the Respondent.

CORAM : A.S. OKA
SMT. ANUJA PRABHUDESSAI, JJ.

DATE ON WHICH SUBMISSIONS WERE HEARD : 9th FEBRUARY, 2017
DATE ON WHICH JUDGMENT IS PRONOUNCED : 7th JULY, 2017

JUDGMENT (PER A.S. OKA, J.):-

1 By this Appeal, the appellant – husband has taken an

exception to the judgment and decree dated 16 th February, 2008 passed

by the learned Judge of the Family Court No.6, Bandra, Mumbai. We

are directing that names of the parties in the cause title of the judgment

shall be masked and accordingly, the appellant and the respondent have

been described as “H” and “W” respectively. We have also masked the

names appearing at various places in this judgment.

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2 We had kept this Appeal pending with the hope that the

parties will see the reason and will come out with amicable solution.

But, so far, there is no settlement.

3 The marriage between the parties was solemnizsed on 6 th

July, 1994 in accordance with the Special Marriage Act, 1954 (for short

“the said Act”). At the time of marriage, the respondent – wife was a

spinster. However, the appellant – husband was a divorcee. He had two

children from his first marriage. At the time of marriage, the age of his

son was 15 years and the age of the daughter was 8 years. The

appellant – husband filed a Petition No.A-507 of 2000 of 2 nd May, 2000

seeking a decree of divorce on the grounds set out in clauses (d) and

(e) of Sub-Section (1) of Section 27 of the said Act. The first ground

was of cruelty and the second ground was that the respondent has been

suffering intermittently from mental disorder of such kind and to such

an extent that the appellant – husband cannot be reasonably be

expected to live with her. A decree of injunction was prayed for by the

appellant – husband in respect of Flat No.404 (for short “the said flat”)

in Twin Star Building, Shristy Complex, Saki Vihar Road, Powai,

Mumbai. Injunction sought was for restraining the respondent – wife

from entering upon or remaining upon the suit flat. The prayer for

perpetual injunction was also sought restraining the respondent – wife

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from visiting premises of M/s. Vitrun Glass where the appellant was

working and from contacting the appellant’s employer on telephone.

The Petition was contested by the respondent – wife by filing her

written statement. The appellant adduced evidence of himself by filing

an affidavit in lieu of examination-in-chief at Exhibit – 21 and

additional affidavit in lieu of examination at Exhibit – 31. The

respondent examined herself by filing an affidavit in lieu of

examination-in-chief. Apart from examining themselves, the parties did

not examine any other witnesses but both parties adduced documentary

evidence. By the impugned decree, the learned Judge of the Family

Court held that the appellant was not entitled to any relief and

proceeded to dismiss the Petition.

4 With a view to appreciate the submissions canvassed across

the bar, a brief reference to the pleadings of the parties will have to be

made. In the Petition, the appellant pointed out that the respondent has

been working as Air Hostess with the Indian Airlines for more than 20

years and that she was continuously posted at Delhi. The appellant was

working at Delhi from the year 1982 to 1987. Thereafter, the appellant

started residing in Mumbai. The case made out by the appellant is that

at the relevant time, the respondent was earning Rs.60,000/- to

70,000/- per month with perquisites. According to the case of the

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appellant, he had clearly informed the respondent before solemnization

of marriage that if at any stage after the marriage, the respondent

creates a situation where the appellant is called upon to choose

between her and his children, he will choose his children. It is the case

of the appellant that the respondent agreed to the said condition and

also promised to assist the appellant to look after the children.

5 According to the case of the appellant, from the next day of

marriage, the respondent started quarreling with him and started

criticizing the his children. She started criticizing the appellant for

talking to his daughter for a long time on telephone.

6 A very serious allegation is made by the appellant that the

respondent could not sleep between 11.00 pm to 4.00 am. The

allegation is that the respondent used to pick up some quarrel on some

trifle issue in the night and start shouting at and abusing the appellant

in a loud tone which was to continue upto 4.00 am or 5.00 am. The

allegation of the appellant is that thereafter the respondent used to

sleep and used to get up at 11.00 a.m.

7 According to the case of the appellant, in order to appease

her relatives, the respondent asked the appellant to undergo one more

marriage ceremony in Delhi which was held in April, 1995 and only

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after that ceremony that the parties announced their marriage to their

friends and relatives. According to the case of the appellant for two to

three years, the respondent continued her tirade from 11.00 pm to 4.00

am whenever she used to be in Mumbai with him. According to him,

the respondent used to quarrel over trifle matter and refused to talk to

the appellant or come to Mumbai for two to three months. Sometimes,

she used to stay away even for a continuous period of six months.

Further the allegation is that the respondent used to call the appellant

from Delhi several times between 11.00 pm to 5.00 am and abuse him

in a filthy language.

8 According to the case of the appellant, as this was his

second marriage, he tried his level best to save the marriage by going to

the extent of tendering apology to the respondent. According to the

case of the appellant, when his employer gave him a new car, on the

request made by the respondent, he gave his old car to the respondent

for her use at Delhi. Accordingly, by the said car, they travelled upto

Delhi and the appellant stayed for three days with the respondent in

Delhi when the appellant gifted a television set to the respondent. It is

alleged that in the year 1996, the appellant took the respondent to

Nainital for a holiday for about 4-5 days when the respondent was

happy and behaved well. Though the appellant tried to persuade the

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respondent to give up her employment in Delhi or at least get transfer

to Mumbai, the respondent used to insist on the appellant shifting to

Delhi. The appellant has set out the details of the travelling undertaken

by him along with the respondent to various places. The appellant has

stated that in the year 1998, he took the respondent to various places in

Maharashtra including Ellora Caves at Aurangabad. He has stated that

whenever the respondent used to be at home, she continued her

conduct of not sleeping upto 4 to 5 am and shouting and screaming at

the appellant.

9 The appellant has stated that he took leave from his

employer from May, 1999 and took the respondent to a tour of temples

in South India. Thereafter, the appellant received a complaint from his

children that the respondent had been telephoning them at their

mother’s residence and abusing them and shouting at them. The

appellant alleged that due to quarrelsome nature of the respondent

during the span of 10 years, the appellant could take his children away

for holiday only once in March, 1999.

10 It is the allegation of the appellant that the respondent had

been threatening that if she does not conceive, she would commit

suicide. His allegation is that the respondent’s behaviour continued to

become more and more neurotic.

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11 The appellant further alleged that in February, 2000 the

respondent came to Mumbai for 10 to 12 days for wedding of his

nephew. It is alleged that in the marriage function, the respondent

started a quarrel with the appellant in presence of others. Ultimately,

the appellant had to take her outside the place of function for pacifying

her. In the function, on the same day, the respondent again started

quarreling by objecting to the act of the appellant of talking to his

family relatives and especially his niece who had come from Kenya. It is

alleged that even at the time of reception, she created a scene.

12 In the night on the same day, the respondent refused to

stay with the appellant and demanded money to enable her to stay in a

hotel in Mumbai and returned to Delhi next day. While the appellant

and the respondent were travelling by auto rickshaw, the respondent

kept on shouting and asking for the address of mental hospital to the

people around.

13 The case of the appellant husband is that after few days,

she came back to Mumbai and was staying in Centaur Hotel at Juhu

where she was put by her employer. The appellant reached the Hotel

room of the respondent when she was performing Pooja. It is alleged

that after the Pooja was over the respondent started shouting at the

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appellant and abusing the appellant. She wrote a note in which she

stated that if anything happens to her, the appellant would be

responsible for the same.

14 We are quoting paragraphs 17 to 21 of the Petition as heavy

reliance was placed on the incidents narrated therein. Paragraphs 17 to

21 read thus :-

“17. The petitioner says that, similarly the respondent came
and stayed with him for 10 days each in March and
April, 2000 each. Throughout the said two visits, the
respondent was continuously threatening to commit
suicide by jumping down from the petitioner’s fourth
floor flat or taking sleeping tablets. With every such
threat, the respondent used to remind the petitioner
that she not only has kept the said note in her purse but
also has kept similar notes at her residence in Delhi. At
the same time, the respondent was forcing the petitioner
to ensure that she somehow conceives for which
purpose she forced the petitioner to take her to the
infertility clinic, where the doctors tried for a test tube
baby but did not succeed as the respondent did not have
sufficient ovulation. Thereafter, the respondent was
undergoing IUI (Intra Uterine Insemination). Inspite of
trying all the methods, it did not succeed.

18. On 10th April 2000, the respondent asked the
petitioner for some monies. The petitioner took out a
bundle of notes from the cupboard and gave it to
her. The respondent, on the pretext of prying open

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the stapler pins on the bundle of notes, picked up a
knife from the kitchen and came back to the
bedroom. The petitioner was surprised to note that
instead of opening the said pins, the respondent
stood staring at the petitioner in a strange way,
brandishing the knife and said “Shall I kill myself ?”
the petitioner was afraid that she may actually stab
herself, and he quietly went down the stairs and
brought the watchman of the building up, in case he
needed help. The watchman was shocked to see the
respondent brandishing the knife and asked her to
give the knife to him. The respondent looked at the
watchman blankly for sometime and thereafter gave
the knife to the watchman. Thereafter, the
respondent has been threatening to do an “Anju
llasayi” to the petitioner i.e., commit suicide and put
the blame on the petitioner. The respondent also
threatened the petitioner that if she could not live in
his flat, she would set it on fire. The petitioner says
that, the Respondent was quite capable of putting
the said threat into practice. It was not possible for
the petitioner to bear any more the cruelty, torture
and mental trauma heaped upon him by the
respondent. On 23-4-2000, the respondent left for
Delhi. The petitioner by his Advocate’s letter dated 24-
4-2000 addressed to the Sr. Inspector, Sakinaka Police
Station, to prevent the respondent from taking the law
into her own hands. A copy of the said letter dt. 24-4-
2000 is annexed hereto and marked Ex. “C”.

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19. Due to the said abnormal, violent and cruel
behaviour of the respondent, the petitioner took the
respondent to Dr. Jyoti Dass, a psychiarist, who
examined and a sitting of one hour, who prescribed
some tablets and asked them to come back after a
few days. The respondent refused to meet her again.
The petitioner met Dr. Dass after a week, and
informed her of Respondent’s recultance to meet her.
Dr. Dass gave to the petitioner gave to the petitioner
a Certificate dt. 14-4-2000 showing the treatment
required by the Respondent. Inspite thereof, the
respondent refused to consult Dr. Dass or any other
psycharist.

20. The Petitioner says that, the respondent returned to
Mumbai on flight in the evening of 25 th April 2000,
which was not normal as she could not get flights to
Mumbai so soon. But she appears to have been arranged
it specially. The respondent went to the petitioner’s
residence in his absence and finding the house closed,
she went to the petitioner’s office and tried to contact
him from the gate of the factory. The petitioner was not
at his office at that time, as he was in a meeting with a
customer elsewhere. The respondent seeking the
petitioner’s car and the driver, sat in the car and refused
to leave. The respondent could not contact the
petitioner, she telephoned the petitioner’s bosses and
made false allegations against the petitioner. Inspite of
the request of the security officer of the company to
leave, the respondent refused to do so, and kept on

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harassing the petitioner’s driver to telephone the
petitioner at the residence. At the instance of the
respondent, the driver telephoned the petitioner 3-4
times from the respondent’s mobile telephone and left
messages on the answering machine that he should
come to the factory. Ultimately, the security staff of the
petitioner’s employers dropped the respondent near the
petitioner’s residence in the company’s car. The
petitioner returned home at about 11.30 p.m. and found
several messages from his driver as well as respondent
on his answering machine. However, next morning the
respondent went back to Delhi.

21. On 27th April 2000, the Respondent again came to
Mumbai on a flight and stayed at Centaur Hotel but
kept on telephoning and threatening the Petitioner. Even
when the petitioner is not at home, the messages left by
her on the answering machine show that she even
shouts and screams to the answering machine. The
petitioner says that the respondent may commit suicide
or harm herself and put the blame on him. In any event,
it is not safe for the life, limb and sanity of the petitioner
to continue to live with the Respondent.”

(emphasis added)

15 The respondent – wife filed written statement in which she

denied the allegations made by the husband. Her contention is that she

was suffering from thyroid gland disorder. Her case is that though she

conceived in the year 1992, the appellant prevailed upon her to

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undergo an abortion. She stated in paragraph 26 of the written

statement which reads thus :-

“26. The Respondent further submits that she is suffering
from Thyroid gland disorder but once when she is
conceived in the year 1992 he prevailed upon her to
abort the said pregnancy which created tension in her
mind and she used to suppressed her emotional feeling
which resulted into Harmonal imbalance. Infact doctor
told Petitioner to keep the atmosphere of home happy
which will help her to conceive in future.”

16 Apart from denying the allegations made in the Petition,

the Respondent – wife contended that she hails from a family of

freedom fighters which is a very cultured family. She stated that she

maintained a very cordial and good relationship with the entire family

of the appellant even till the date of filing written statement and in fact

she stayed with the appellant’s sister after the present Petition for

divorce was filed.

17 The learned counsel appearing for the appellant has taken

us through the pleadings and notes of evidence. He submitted that

consistent conduct of the respondent as demonstrated by the evidence

shows that her conduct caused enormous annoyance and mental cruelty

to the appellant. He submitted that cruelty has to be judged after taking

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into consideration the entire facts and circumstances of the case. He

relied upon the observations made by the Apex Court in the case of

Ravi Kumar Vs. Julmidevi1. He invited our attention to the written

statement of the respondent and in particular paragraph 26. He

submitted that what is stated therein itself supports the ground of

mental disorder agitated by the appellant.

18 He invited our attention to the incident of 10 th April, 2000

of the respondent brandishing a knife and threatening to stab herself.

He submitted that merely because watchman of the building was not

examined, the incident of 10th April, 2000 cannot be disbelieved. He

submitted that the fact that the appellant allowed the respondent to

stay with him continuously till 24th April, 2000 cannot be held against

him. He submitted that merely because a police complaint was not filed

by him, the case of the appellant as regards the conduct of the appellant

on 10th April, 2000 cannot be disbelieved. Referring to the greeting

cards which are on record, he submitted that in fact the act of sending

greeting cards will show that the appellant always greeted the

respondent notwithstanding her conduct. The act of sending greeting

cards or the act of allowing the respondent to stay with him cannot be

held as a condonation of cruelty by the appellant.

1 (2010) 4 SCC 476.

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19 The learned counsel appearing for the appellant invited our

attention to the impugned judgment. He submitted that the learned

Judge of the Family Court has not at all discussed the evidence adduced

by the parties and the impugned judgment hardly contains any finding

based on analysis and appreciation of oral and documentary evidence.

He submitted that the Family Court under the Family Courts Act, 1994

is not bound by strict rules of evidence and therefore, when the

transcript of the conversation produced by the appellant along with the

cassette was on record, the learned Judge could not have discarded the

same.

20 He relied upon various decisions of the Apex Court in

support of his submission that the marriage between the parties has

irretrievably broken down and therefore, no purpose would be served

by continuing the marriage as the same would cause mental agony to

both the parties. He relied upon the decision of the Apex Court in the

case of V. Bhagat Vs. D. Dhagat2.

21 In support of ground of cruelty, he relied upon the

decisions of the Apex Court in the case of A. Jayachandra Vs. Aneel

Kaur3, Samar Ghosh Vs. Jaya Ghosh4, Manisha Tyagi Vs. Deepak Kumar 5,

2 (1994) 1 SCC 337
3 (2005) 2 SCC 22
4 (2007) 4 SCC 511
5 (2010) 4 SCC 339

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Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal 6. His submission is

that both grounds agitated by the appellant have been established and

even otherwise, the appellant is entitled to a decree of dissolution of

marriage.

22 The learned counsel appearing for the respondent

submitted that on the basis of oral and documentary evidence on

record, the learned Judge of the Family Court has recorded a finding

regarding the condonation of alleged acts of cruelty by the appellant by

his conduct. He urged that both grounds pleaded by the appellant are

by way of an afterthought. He urged that there is nothing wrong with

the ultimate conclusion drawn by the learned Judge of the Family Court

when he held that no ground for grant of divorce is made out. He

submitted that all the decisions of the Apex Court by which marriages

were dissolved on the basis of irretrievable break down have been

rendered under Article 142 of the Constitution of India. He, therefore,

submitted that no interference is called for.

23 We have carefully considered the submissions. At the

outset, there are submissions made by the learned counsel appearing

for the appellant on the manner in which the findings have been

recorded by the learned Judge of the Family Court. We are dealing with
6 (2012) 7 SCC 288

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a statutory appeal which is available both on facts and law. Therefore,

we are recording our own findings after considering the pleadings and

after appreciating oral and documentary evidence on record. The

learned Judge has not framed any issue though there is a specific

pleading in the divorce Petition filed by the appellant - husband that

the wife has been suffering intermittently from mental disorder of such

kind and to such an extent that he cannot be reasonably expected to

live with her. In the evidence of the husband, he has come out with the

case that he had taken the respondent - wife to Dr. "J", Psychiatrist. The

appellant has alleged that on 10th April, 2000 while he was handing

over certain currency notes to the respondent, she started brandishing a

knife and threatened to kill herself. The case of the respondent is that as

he apprehended that she may actually stab herself, he went down stairs

and brought a watchman for help. His case is that the respondent

looked at the watchman blankly for sometime and thereafter gave the

knife to the watchman. In the cross-examination, the husband stated

that after the said incident also he had taken his wife to Dr."J".

Surprisingly, the husband has not examined Dr. "J". There is a certificate

dated 19th April, 2000 purportedly issued by Dr. "J" which is not

admitted in evidence. Nevertheless, we have perused the said certificate

which records that Dr. "J" had seen the respondent - wife on 14 th April,

2000 who was accompanied by her husband. Dr. "J" stated that she

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complained of decreased sleep, crying spells and angry outbursts, as

well as sadness of mood. She has merely recorded that she required

psychiatric assessment and observation. Dr. "J" was perhaps the best

witness to depose in support of the plea of the appellant- husband that

the respondent - wife was intermittently suffering from mental

disorder. However, the appellant - husband has made no efforts to

examine the said witness. Hence, the said ground for divorce under

clause (e) of sub-Section (1) of Section 27 of the Act has not been

proved.

24 Perusal of the averments made in the Petition and

examination-in-chief of the appellant - husband shows that according

to his case, after the solemnization of marriage on 6 th July, 1994, he

continued to stay in Mumbai and the respondent - wife continued to

stay at Delhi. For few days in a month, she used to come down to

Mumbai and stay with the appellant. The appellant - husband has

alleged that virtually from the next day of the marriage, the behaviour

of the respondent was objectionable. It has come on record that the

appellant and the respondent had consulted Doctors as the respondent

was not conceiving. In paragraphs 34 and 35 of his cross-examination,

the appellant has stated thus :-

"34. True to say that after April 1999 both of us were
consulting doctor's for the problem of respondent
not conceiving. It is true that it was our joint

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decision to have a child. It is true that Dr. Rama
Vaidya was one of the doctor's to whom we had
consulted for this problems. I have visited Dr. Rupin
Shah. I might have visited Dr. Rupin Shah in the
year July 99, as per the advise of Dr. Meena Shringi.

35. I do not remember of having gone to Dr Rupin Shah.
The respondent has visited me last in May 2000. It is
true that in the year 1999 to 2000 we were visiting to
doctor."

(emphasis added)

25 Thus, these statements show that at least till May, 2000,

the appellant and the respondent were planning to have a child. This is

one circumstance which will have to be borne in mind while dealing

with the issue of cruelty.

26 As pointed out earlier, according to the case of the

appellant, there was a major incident of 10 th April, 2000 when the

respondent - wife threatened to stab herself by using a knife. The

appellant has admitted in paragraph 39 of his evidence that from 10 th

April, 2000 till 24th April, 2000, the respondent - wife was continuously

staying with him. Moreover, the appellant did not file any police

complaint of the incident of 10 th April, 2000. The appellant through his

Advocate filed a police complaint on 24th April, 2000 (Exhibit - 39).

The said police complaint refers to the incident of 10 th April, 2000. The

act of filing the complaint may not be sufficient to come to the

conclusion that incident of 10 th April, 2000 has been proved. The

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appellant has not chosen to examine the watchman who was allegedly

called by him. Evidence of the watchman could have been an important

piece of evidence. However, the appellant did not examine the

watchman, in fact in paragraph 47 of the cross-examination, the

appellant accepted that he was not examining the watchman to prove

the incident of 10th April, 2000. Hence, an adverse inference ought to

be drawn against the appellant for not examining the watchman.

27 The appellant has relied upon an incident of 25 th April,

2000 when, the respondent visited the factory where the appellant was

working. She did not leave though the Security Officer told her to leave.

Moreover, it is alleged that the respondent telephoned appellant's

superior officers and made allegations against the appellant. However,

the appellant has not examined Security Officer of his company and his

superior officers to prove the incident. Moreover, the appellant did not

examine his children. The appellant has relied upon recorded

conversation with the respondent. But, the appellant has not proved

that the voice of female in the recording was that of the respondent. In

this case there is a word against word as both the parties have not

examined any other witness.

28 There are large number of greeting cards which are placed

on record which were sent by the appellant to the respondent in the

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year 1999. On 8th October, 1999, the appellant had sent two greeting

cards to the respondent wishing her on her birthday. As stated earlier,

the present Petition was filed by the appellant on 2 nd May, 2000. There

is a greeting card of 8 th October, 2000 at Exhibit - 78 sent by the

appellant to the respondent. The greeting card at Exhibit - 78 has been

produced by the wife along with list of documents at Exhibit - 17.

There is an endorsement that the said greeting card has been admitted

by the appellant and therefore, the same has been marked as Exhibit.

29 The aforesaid discussion shows that even assuming that

there were acts of cruelty on the part of the respondent, the said acts of

cruelty were consistently condoned by the appellant as can be seen

from his conduct reflected from evidence. He has accepted that in the

years 1999 and 2000, they were visiting Doctors for consulting them as

the respondent was not conceiving. In fact, the respondent was

admittedly consulting Dr. Rupin Shah as disclosed from paragraph 35 of

the cross-examination of the appellant. Moreover, on 8 th October, 1999

the appellant has sent two greeting cards to the respondent which

showed that everything was normal. What is pertinent to note is that

even on 8th October, 2000 during the pendency of the Petition, the

appellant forwarded a greeting card to the respondent. The greeting

cards issued from the year 1996 onwards are on record which show

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normal relationship between the appellant and the respondent.

Moreover, the respondent continued to stay with the appellant till 24 th

April, 2000. Therefore, apart from the fact that the appellant has not

adduced evidence of crucial witnesses, the aforesaid conduct of the

appellant creates a serious doubt about the correctness of the

allegations of cruelty. In any event, the said conduct amounts to

condonation by the appellant of the alleged acts of cruelty on the part

of the respondent.

30 It is true that the marriage between the parties seems to

have irretrievably broken down. However, in view clause (a) of sub-

Section (1) of Section 34 of the said Act, unless one of the grounds for

dissolution of marriage set out in Section 27 is established, the Court is

powerless to pass a decree of divorce. All the decisions of the Apex

Court relied upon by the appellant wherein marriage was dissolved on

the basis of irretrievable breakdown have been rendered by exercising

the power under Article 142 of the Constitution of India. Therefore, we

are unable to pass a decree of divorce on the said ground.

31 We are, therefore, of the considered view that both grounds

of divorce pleaded by the appellant have not been established. Though

the impugned judgment may not be satisfactory, the ultimate conclusion

drawn by the learned Judge of the Family Court is correct.

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32 Hence, we pass the following order :-

ORDER

(i) The Appeal is dismissed with no order as to costs.

    (SMT. ANUJA PRABHUDESSAI, J )                          (A.S. OKA, J ) 

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