Vivek Kailash Shukla vs Minal Vivek Shukla on 11 September, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.

FIRST APPEAL NO.2762 OF 2016

Vivek s/o Kailash Shukla
Age : 37 years, Occupation : Service,
Residing presently at 17 – B, Sangam Nagar,
Indore – Madhya Pradesh. .. Appellant

VERSUS

Mrs. Minal w/o Vivek Shukla
Age : 40 years, Occupation : Service,
Residing at c/o Babubhai Devchand Patel,
243, Baliram Peth, Taluka Dist. Jalgaon .. Respondent

Advocate for Appellant : Shri. Hemant Surve
Advocate for Respondent : Shri. Kishor C. Sant

CORAM : P.R. BORA, J.

RESERVED ON : 05.07.2017
PRONOUNCED ON : 11.09.2017

JUDGMENT :

01. Aggrieved by the Judgment and decree passed in Special

Marriage Petition No.06 of 2009 by the Court of District Judge-1,

Jalgaon on 22.04.2016, the respondent therein has filed the present

appeal.

02. The present respondent had filed the aforesaid petition

under section 22 of the Special Marriage Act seeking restitution of

conjugal rights. In the said petition, the present appellant filed a

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counter claim thereby praying for grant of divorce against the

petitioner. The learned District Judge has granted the decree of

restitution of conjugal rights in favour of the respondent and has

dismissed the counter claim filed by the present appellant, seeking a

decree of divorce. Aggrieved by, the present appeal is filed.

03. Heard the learned Counsel appearing for the parties.

Perused the impugned Judgment and the evidence adduced before

Court below.

04. It is not in dispute that, the appellant and the respondent

got married on 12th September, 2008 and their marriage was

registered under the provisions of Special Marriage Act, 1954. It is

also not in dispute that, it was the love marriage.

05. It was the case of the respondent before the Trial Court

that, though her marriage with the present appellant was a love

marriage and was registered under the provisions of the Special

Marriage Act, 1954, the appellant and the other relatives of the

appellant insisted for performing the customary marriage according

to the hindu rituals and though her parents had agreed for the same,

and have made all arrangements for the said function, the appellant

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and his parents in the meanwhile raised the demand of Rs.2,50,000/-

in cash, 200 grams of gold ornaments and 2 Kg silver utensils and

since she and her parents expressed their inability to comply with the

said demand, the appellant and his parents unilaterally cancelled the

said function and informed her that, her marriage performed with the

appellant stood cancelled. It was further alleged by the respondent

that, for non – fulfillment of the aforesaid demand of dowry, the

appellant caused physical and mental torture to her and though she

made all honest efforts to resume his company, the appellant refused

to cohabit with her and thus deprived her from the conjugal rights

without any sufficient cause.

06. The petition so preferred by the respondent was opposed

by the appellant. While denying the allegations made against him by

the respondent, the appellant raised counter claim seeking divorce on

the ground of cruelty from the respondent. It was the contention of

the appellant that, the respondent filed a false criminal complaint

against him, his parents and brother for the offences under sections

498-A, 420, 323, 504 506 r.w. 34 of I.P.C. It was the further

contention of the appellant that, in the aforesaid criminal case, he,

his parents and his brother were subjected to great harassment and

humiliation, they were arrested and required to obtain bail and

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were under trauma till the said criminal case ended in acquittal.

According to the appellant lodging false criminal case by the

respondent against him and his relatives caused them agony and

therefore constitute cruelty as defined under the law making the

appellant entitled for seeking divorce on the said ground. The

appellant on the aforesaid ground had prayed for dismissal of the

petition filed by the respondent seeking decree of restitution of

conjugal rights and has prayed for decree of divorce in his favour by

allowing his counter claim on the grounds raised by him in the

counter claim.

07. It was the specific plea raised by appellant, while

opposing the petition for restitution of conjugal rights and in support

of his counter claim for grant of divorce that, the respondent had

filed a false complaint alleging offences under Section 498-A, 420,

323, 504 506 read with 34 of I.P.C., in which, he and his family

members got acquittal. It was the contention of the appellant that

filing of a false criminal complaint by the respondent constitutes

matrimonial cruelty and would entitle the husband to claim the

divorce.

08. The learned District Judge has turned down the plea so

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raised by the appellant. The learned District Judge has observed that,

the trial Court which acquitted the appellant and his relatives from

the offences under Sections 498-A, 420, 323, 504 506 r.w. 34 of

I.P.C. has not recorded any such finding that, the allegations made by

the respondent in the said complaint were false, but has acquitted the

appellant, his parents and his brother on the ground that, the

prosecution has failed to prove the charges levelled against them

beyond reasonable doubts. The learned District Judge has also held

that, in the petition before her, the respondent had produced on

record sufficient evidence, which corroborates and sufficiently proves

the allegation made by her against the appellant and his relatives in

regard to demand of money.

09. The learned Judge in para no.18 of the impugned

Judgment has carved out the legal principles from the judgments,

which were relied upon by the parties. It is observed by the learned

District Judge that, “the concept of proof ‘beyond the shadow of

doubt’, is to be applied to criminal trials and not to civil matters and

certainly not to matters of such delicate personal relationship as those

of husband and wife”. It is further observed by the learned District

Judge that, “ultimately it is a matter of inference to be drawn by

taking into account the nature of the conduct and its effect on

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complaining spouse”. Referring to the principles as aforesaid, the

learned District Judge has held that, the allegations made against the

appellant and his relatives though have not been proved in the

criminal trial beyond the shadow of doubt, the evidence which has

been brought on record in the proceeding before her, the respondent

has sufficiently proved that, there was an illegal demand by the

appellant and his relatives and for non – fulfillment of the said

demand, the respondent was being treated cruelly and on that illegal

ground the husband has deprived the wife from enjoying the conjugal

rights.

10. Now, it has to be seen whether the observations made by

the learned District Judge and the conclusions accordingly recorded

by her can be sustained on the touch stone of law as well as facts. As

was deposed by the respondent, cash amount of Rs.2,50,000/-, 200

grams of gold and 2 Kg silver utensils were demanded by the

appellant and his parents from her parents by way of dowry at the

time of faldan vidhi, which, according to the contention of the

respondent was to be performed at Indore at the house of appellant.

Respondent has further deposed that, since she and her parents were

unable to satisfy the demand of dowry as aforesaid, the appellant

and his parents unilaterally declared the marriage to have been

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broken. The respondent has further testified that, thereafter though

she made all honest efforts to cohabit with the appellant, he refused

to cohabit with her and insisted for fulfillment of demands made by

him and his parents. The respondent has also deposed that, the

appellant abused her, beat her and gave her all physical and mental

torture on account of non – fulfillment of his dowry demand and

refused to cohabit with her. The respondent has also deposed that, in

the circumstances she was constrained to file the criminal complaint

against appellant, his parents and brother under sections 498-A, 420,

323, 504 506 r.w. 34 of I.P.C.

11. The material on record reveals that, in her

cross – examination the respondent filed one document on record

alleging the same to be written in the handwriting of the appellant

containing the demands therein allegedly made by the appellant and

his parents at the time of faldan vidhi. The said document is marked

as Exh.54. During the course of the argument, my attention was

invited to the said document by both the learned Counsel appearing

for the respective parties. According to learned Counsel for the

respondent, the said document clearly demonstrates the demand of

Rs.Two Lakhs, gold ornaments and silver utensils. The perusal of the

impugned Judgment shows that, the learned District Judge has relied

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upon the said document to arrive at a conclusion that, a demand was

made by the appellant and has accordingly recorded a finding that,

the respondent has reasonably proved that such demands were made

from the side of the appellant. The learned District Judge has further

drawn an inference on the basis of the said evidence that, the

appellant refused to cohabit with the respondent for non – fulfillment

of the aforesaid demand. The conclusion so recorded has ultimately

resulted in granting decree of restitution of conjugal rights in favour

of the wife.

12. After having carefully perused the entire evidence on

record, it is difficult to agree with the conclusions recorded by the

learned District Judge. It has to be stated that, the document at

Exh.54 which has been heavily relied upon by the learned District

Judge could not have been relied upon for many reasons. Admittedly,

the said document was not placed on record by the respondent either

at the time of filing petition before the District Court or before

adducing her evidence before the said court. There is no explanation

from the respondent as to why such an important document was not

produced by her at the time of filing of the petition or before

adducing her oral evidence before the Court.

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13. I have carefully perused the cross – examination of the

respondent. She has given a categorical answer that, she was not

having any documentary evidence to show that, the appellants had

demanded from her Rs.2.5 Lakhs, 2 Kg of silver utensils and 200

grams of gold. Immediately thereafter, a suggestion was put to her

that, she was not having any documentary evidence to show that, the

father of the appellant cancelled the date of the customary marriage

and the faldan vidhi scheduled to be held on 08.02.2009.

Respondent, though denied the said suggestion, further volunteered

that, she possesses such evidence and she was ready to produce it on

record and according to her, the said document was in the hand

writing of the respondent. I deem it appropriate to reproduce herein

below the said portion in the cross – examination of the respondent

as it is in verbatim, which reads thus :

”lk-okY;kus ek÷;kdMwu 2|| yk[k #-] nksu fdyks pkanhps lkeku
o 200 xzWe lksU;kph ekx.kh dsyh gs nk[kfo.;klkBh ek÷;kdMs
dkxnksih iqjkok ukgh- gs Eg.k.ks [kjs ukgh dh ek÷;kdMs lk-
okY;kP;k oMhykauh yXukph rkjh[k jn~n dsyh o fn-8-2-09 jksth
yXukpk Qynku fo/kh gksbZy vls nk[kfo.;klkBh dkxnksih
iqjkok ukgh- lk{khnkj lkaxrs dh ek÷;kdMs iqjkok vkgs o rks eh
nk[ky dj.;kl r;kj vkgs o rhps Eg.k.ks vkgs dh rs lk-
okY;kP;k gLrk{kjkr vkgs-”

14. Perusal of the further cross – examination does not

reveal whether any such document was filed by the respondent and

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whether such document was permitted to be filed by the learned

District Judge. There is nothing more on record showing that, such

document was in fact filed, was shown to the witness and was

admitted by her to be the same document. Only in the last line of the

cross – examination of the respondent it is mentioned that, ” Qynku

fo/khpk nLr fu-54 yk vkgs- ” It is really surprising that, on such vague

evidence the learned District judge has placed her reliance. First of

all, it was the unknown procedure followed of allowing the witness to

produce any document in the cross – examination without giving any

opportunity of opposing such production of the document to the

opposite side. Further a total go – bye is given to the procedure of

proving the contents of the said document. It has to be stated that,

the contents of the said document are not legally proved and in such

circumstances the exhibition of the said document can only be

considered for limited purpose of identification of the said document.

15. Question arises why such a vital and important

document, when it was in custody of the respondent, was not

produced by her during the course of the trial for the offences under

section 498-A of I.P.C. I reiterate that, unless the circumstances are

explained why the said document was not filed at the initial stage i.e.

at the time of filing of the petition its production could not have been

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allowed. It is really surprising that, an observation has been made by

the learned District Judge that, it is nowhere suggested to the

respondent by the appellant that, the said document was not in his

hand writing. The learned District Judge has failed in appreciating

that, when the said document was not legally proved, the learned

Counsel for the appellant cleverly did not refer to the said document

even for giving a suggestion that, the said document was not in the

hand writing of the appellant or else the said document would have

been validly read in evidence. No such inference therefore can be

drawn that, since the appellant did not give any such suggestion it

shall be deemed that the said document is in his handwriting. Further

even if we prefer to rely upon the said document, assuming that it is

in the hand writing of the respondent, without any further evidence,

it is difficult to record any such conclusion that, the said document

contains the demands made by the appellant and his family members

from the respondent.

16. Further, the learned District Judge does not seem to have

properly appreciated the Judgment in the case of Regular Criminal

Case No.712/2009 filed on the complaint of the respondent against

the appellant and his relatives. In the said case, it was deposed by the

respondent that,

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“Vivek asked me on a phone call to give a cash of
Rs.2.5 Lakhs, 200 grams gold ornaments, 2 Kg
silver utensils as dowry. I tried to convince Vivek
that, we have performed a love marriage and
therefore it is not proper to demand anything, but
he was not ready to listen me. Thereafter Vivek
made a phone call to my father and made same
demand to him.”

The discussion made by the learned Magistrate in the Judgment

delivered by her in Regular Criminal Case No.712/2009 reveals that,

the father of the respondent had admitted in his evidence before the

Court that, accused Vivek did not make any demand of any ornament

or cash from him. I deem it appropriate to reproduce the observations

made by the learned Magistrate in that regard in para no.27 of the

said Judgment, which read thus :

“Babubhai (PW6) has admitted that the accused
Vivek did not make any demand of any ornaments or
cash from him, though the informant states that after
telling her about their demand for the Phaldan, Vivek
immediately conveyed about the same to her father on
phone.”

Thus, there was no corroboration to the fact stated by the

respondent that dowry was demanded by the appellant and that was

the reason that, the learned Magistrate has recorded a finding that,

the prosecution has failed in proving the charges levelled against the

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accused therein.

17. As noted earlier, the learned District Judge has observed

in the impugned Judgment that in absence of any such finding

recorded by the criminal Court while acquitting the appellant and his

family members from the offence under Sections 498-A, 420, 323,

504 506 r.w. 34 of I.P.C. that a false case was filed against them by

the complainant, filing of such complaint, would not amount to

cruelty and thus cannot be a ground for the husband to seek a decree

of divorce.

18. In the case of Anil Yashwant Karande Vs. Mangal Anil

Karande [2016 (2) Mh.L.J.] 166, a similar question was raised,

which I deem it appropriate to reproduce herein below :

“Whether for the act of filing complaint under section
498-A of Indian Penal code, to amount to mental
cruelty on the acquittal of husband and family, it is
essential that judgment of acquittal must find that the
complaint filed was false and with an intention to
defame?”

19. The facts involved in the aforesaid case were quite

similar to the facts of the present case, except that, the aforesaid

petition was under the provisions of the Hindu marriage Act, whereas

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the instant proceeding is under the provisions of the Special Marriage

Act. While deciding the aforesaid issue, the Learned Single Judge has

referred to various judgments of this Court and also of the Hon’ble

Apex Court. In the said matter also, the lower Appellate Court had

held that, the criminal Court has nowhere stated that, the false

complaint was lodged and thus the said ground cannot be canvassed

for seeking divorce.

20. In the aforesaid Judgment, the learned Single Judge has

referred to the judgement of the Division Bench of this Court in case

of Mr. M. Vs. Mrs. M. 2014 (2) Mh.L.J. 825, wherein it has been

held that,

“In a given case depending upon the
evidence on record, even if acquittal is on the ground
that, charge could not be substantiated and even if
there was no finding recorded by the criminal court
that, the prosecution case was false, there can be a
case of cruelty. The division bench has further
observed that, it depends upon the manner in which
the complaint has been filed and prosecuted.”

21. Perusal of the order passed in Regular Criminal Case

No.712/2009, based on the complaint filed by the present

respondent, demonstrates that, the said complaint has been dismissed

on merits and not on the ground that, the prosecution has failed to

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prove the case beyond reasonable doubt.

22. As I have noted earlier, the learned Magistrate has

specifically observed that, though the informant had stated that, the

husband had conveyed the monitory demands for the faldan vidhi to

her father on phone, the father namely Babubhai (PW-6) had

admitted that, the accused – husband did not make any demand of

any ornaments or cash from him. It is worth to note that, the learned

Magistrate has candidly observed that, the evidence of all the

aforesaid prosecution witnesses is replicate of material contradictions

rendering the same not worthy of credence raising reasonable doubts

about allegations levelled against the accused. The learned

Magistrate has further observed that, the informant has failed to

produce on record the copy of the notice allegedly sent by her to her

husband on 17.07.2014 and the e-mails sent by her to him. The

learned Magistrate has also observed that, the FIR was lodged

belatedly after 25 days of occurrence of the alleged incident.

23. The criminal Court while acquitting the appellant and his

family members has considered the evidence of several witnesses and

thereafter had recorded a clear finding that, the prosecution has

failed to prove the material ingredients against the accused under

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section 498-A read with 34 of I.P.C. and that the prosecution evidence

is absolutely insufficient to prove the allegations against the accused.

The learned Magistrate thus has rejected the complaint on merits

after evaluating the evidence of prosecution witnesses. It has to be

stated that the criminal complaint was seriously prosecuted by the

respondent by adducing evidence of several witnesses. It has also

come on record that the bail application of the appellant was also

seriously opposed by the respondent. It is also a matter of record that

the passport of the appellant was sought to be seized in the matter by

the respondent.

24. The copy of the Judgment in the case of R.C.C. No.

712/2009 was indisputably placed on record by the appellant. The

learned District Judge has, however, observed that, since in the

aforesaid criminal case the learned Magistrate has not recorded any

such finding that the criminal prosecution initiated on complaint of

the present respondent was false, the acquittal of the accused i.e.

present appellant and his family members from the said case would

not provide a cause to the appellant to seek divorce on the said

ground.

25. The observation so made and the conclusion so recorded by the

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learned District Judge is wholly unsustainable. I have elaborately

discussed herein above that, the acquittal recorded of the appellant

and his family members by the learned Magistrate in R.C.C.

No.712/2009 is on merits and with an observation that, the

prosecution evidence was absolutely insufficient to prove the

allegations against the accused. The observations made by the

learned Magistrate that the evidence of the prosecution witnesses was

not worthy of credence means that, there was no truth in the case of

prosecution. In a way the observations made by the learned

Magistrate lead to the inference that, the prosecution case was false

though such wording not been expressly used by the learned

Magistrate.

26. Moreover, as has been held by the Division Bench of this

Court in the case of Mr. M. Vs. Mrs. M. (cited supra) even if the

acquittal of the husband and his family members has been recorded

on the ground that, the evidence adduced by the prosecution was

wholly insufficient and though there is no such finding recorded by

the trial Court that, the prosecution case was false, there can be a

case of cruelty.

27. I reiterate that, though the criminal Court has not

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expressly said that the prosecution case was false, the entire

discussion made by the learned Magistrate and the conclusions

recorded by it reasonably suggest that, the said case was false and

would therefore amount to cruelty.

28. The petition filed by the respondent for restitution of

conjugal rights was opposed by the appellant mainly on the ground

that, the respondent filed a false case against him and his family

members and subjected all of them to tremendous mental pain and

agony. On the same ground decree of divorce was also sought by the

appellant by raising a counter claim.

29. As held by the Hon’ble Apex Court in the case of K.

Srinivas Vs. K. Sunita, (2014) 16 SCC 34 it is beyond cavil that, if a

false criminal case is preferred by either spouse, it would invariably

and indubitably constitute matrimonial cruelty and as such would

entitle to the other spouse to claim a divorce.

30. In case of Vishwanath Sitaram Agrawal Vs. Sau. Sarla

Vishwanath Agrawal 2012 (6) Mh.L.J. (S.C.) 1 the facts were that,

the wife had filed a complaint under section 498-A of I.P.C. against

the husband, her father-in-law and other relatives, who were

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acquitted in that case and the said decision of the acquittal was not

assailed before the higher forum and thus the conclusion recorded by

the trial Court that allegations on that count were incorrect and

untruthful had become final. In light of the facts as aforesaid, the

Hon’ble Apex Court observed that, the act of filing false complaint

under section 498-A of I.P.C. by the wife created mental trauma in the

mind of the husband. The Hon’ble Apex Court has further observed

that, no one would like to face a criminal proceeding of this nature

on baseless and untruthful allegations.

31. The Hon’ble Apex Court in the case of V. Bhagat Vs. D.

Bhagat (1994) 1 SCC 337 has held that, ‘a mental cruelty under

Section 13 (1)(i-a) can be defined as that conduct which inflicts upon

the other party such mental pain and suffering as would make it not

possible for that party to live with the other.’

32. In the case of Anil Vs. Mangal (supra) the learned

Single Judge has referred to the Judgment of the Division Bench of

this Court in the case of Nagesh Dhanapp Chilkanti Vs. Sau.

Manisha Nagesh Chilkanti in Family Court Appeal No.158 of 2008,

wherein the division bench had considered a similar case where the

husband and his family members were acquitted in the complaint

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filed under section 498-A of I.P.C. The Division Bench has held that,

filing of false criminal against the husband and his family members

would very much constitute mental cruelty. The Division Bench has

further held that, in the circumstances, the husband was entitled to a

decree of divorce on the ground of cruelty.

33. The learned Single Judge in the case of Anil Vs. Mangal

(supra) after having referred to the aforesaid Judgments has held

thus :

“36. The judgments referred to aforesaid clearly
indicate that if the complaint filed by the wife against
the husband under section 498- A of IPC and other
related provisions was dismissed on merits and the
husband and his family members are acquitted, it was
clear that the complaint filed by the wife against the
husband was a false complaint. In my opinion, filing of
such complaint itself which create mental trauma on the
husband and the complaint which was seriously
prosecuted by the wife by leading evidence of several
persons and bringing the said complaint to its logical
conclusion which ultimately resulted in acquittal of the
husband and his family members clearly amounted to
the cruelty committed by the wife upon the husband.

37. The judgments of the Supreme Court and
this Court which are referred to aforesaid squarely apply
to the facts of this case. I am respectfully bound by those
judgments. There is no dispute that the husband and his
family members were ultimately acquitted in such
complaint made by the respondent. It was not the case of
the respondent before the trial Court as well as before
the lower appellate Court that the finding rendered by

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the learned Magistrate First Class were erroneous and
such allegations were not independently proved by the
respondent before the learned trial Court as well as
before the lower appellate Court. A perusal of the order
passed by the lower appellate Court indicates that the
evidence led by the respondent and other witnesses in the
said criminal proceedings and the findings rendered by
the learned Magistrate First Class have been totally
ignored by the learned trial Court.

38. The Supreme Court as well as this Court in
the aforesaid judgments have consistently held that if the
false criminal complaint is preferred by either spouse it
would invariably and indubitably constitute
matrimonial cruelty, such as would entitle the other
spouse to claim a divorce. In my view, the respondent
having filed a false complaint alleging offence under
section 498-A, 323, 504 and 506 of IPC in which the
appellant and his family members were acquitted and
thus the appellant was entitled to seek divorce on the
ground of cruelty under section 13(1)(i-a) of the Hindu
Marriage Act.”

34. The present respondent filed the petition for restitution

of conjugal rights on 07.09.2009. The material on record reveals

that, pending the said petition, the respondent lodged the report

against the appellant and his family members, on the basis of which,

the criminal case was registered against them for the offences

punishable under section 498-A and other relevant provisions of I.P.C.

The said criminal case was decided on 13.05.2014 whereby the

appellant and his family members were acquitted. The appellant

filed his written – statement to the petition for restitution of conjugal

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rights thereafter i.e. on 20.09.2014 and also raised a counter claim

seeking divorce.

35. The petition for restitution of conjugal rights was thus

further prosecuted by the respondent after decision of the criminal

case. As I have noted earlier, the criminal complaint was seriously

prosecuted by the respondent by adducing evidence of several

witnesses. The bail application was also seriously opposed by the

respondent. An application was also filed by the respondent for

seizure of the pass port of the appellant. In the light of the facts as

aforesaid, it has to be examined whether in the aforesaid

circumstances, the petition filed by the respondent for restitution of

conjugal rights was liable to be decreed. Section 22 of the Special

Marriage Act clearly indicates that, the application for restitution of

conjugal rights can be filed under the said provision only if either of

the spouse has without reasonable excuses withdrawn from the

society of the other. The question arises whether the respondent

could have maintained the petition filed by her seeking restitution of

conjugal rights after the complaint filed by her under section 498-A

of I.P.C. against the appellant and his family members was proved to

be false and hence ended in acquittal of the appellant and his family

members. I need not to repeat the earlier finding recorded by me

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that, the criminal case filed by the respondent against the appellant

under section 498-A of I.P.C. amounted to cruelty committed by the

respondent upon appellant. In the circumstances, as has been held by

the learned Single Judge in the case of Anil Vs. Mangal (supra), no

spouse can be allowed to urge that, he or she would treat other with

cruelty and at the same time would also force other to cohabit with

him or her by filing an application for restitution of conjugal rights.

36. After having considered the entire material on record,

unhesitatingly it can be said that, the appellant has sufficiently

proved the allegation of cruelty on part of the respondent and as

such, no decree of restitution of conjugal rights was liable to be

granted in favour of the respondent and at the same time, there was

no reason for refusing the decree of divorce in favour of the

appellant. The learned District Judge has committed an error in

allowing the petition filed by the respondent for restitution of

conjugal rights and in rejecting the counter claim filed by the

appellant seeking divorce on the ground of cruelty. The impugned

Judgment, therefore, deserves to be set aside. In the result, the

following order is passed.

ORDER

1. The order dated 22.04.2016 passed by the District Judge -1

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24 2762.2016FA.doc

Jalgaon in Special Marriage Petition No.06 of 2009 is set aside.

2. Special Marriage Petition No.06 of 2009 for grant of restitution

of conjugal rights is dismissed.

3. The counter claim filed by the appellant seeking decree of

divorce is allowed.

4. No order as to costs.

5. The first appeal stands allowed in the aforesaid terms.

6. Pending civil application, if any, stands disposed of.

(P.R. BORA, J.)

ggp

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