Karuna @ Vishakha Abhayraj … vs Abhayraj Shankar Hanmante on 3 October, 2017

1 FCA 19 of 2017

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

Family Court Appeal No. 19 of 2017
With
Civil Application No.5955 of 2017

Karuna @ Vishakha w/o Abhayraj Hanmante,
Age 43 years, Occupation : Household,
R/o C/o R.B. Horshil, Jai Mahalaxmi Nagar,
E-1, Gaikwad Mala,
Behind Regimental Talkies, Nashik Road,
Nashik. .. Appellant.

Versus

Abhayraj s/o Shankar Hanmante,
Age 48 years,
Occupation : Legal Practitioner,
R/o 1222, Sai Nagar, N-6 CIDCO,
Aurangabad. .. Respondent.

—-
Ms. Pooja V. Langhe, Advocate, for appellant.

Shri. Satish M. Godsay, Advocate, for respondent.
—-

Coram: T.V. NALAWADE
A.M. DHAVALE, JJ.

Date: 3 October 2017

JUDGMENT (By T.V. Nalawade, J.)

1) The appeal is admitted. Notice after admission

made returnable forthwith. Heard both the sides by

consent for final disposal.

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2 FCA 19 of 2017

2) The appeal is filed by the wife against the

judgment and decree of Hindu Marriage Petition No. A-

220/2010 which was pending in Family Court Aurangabad.

The petition was filed by respondent husband under the

provisions of section 13(1)(1a) of the Hindu Marriage Act,

1955 (Hereinafter referred to as “the Act”) for dissolution

of marriage. The petition was allowed by the trial Court

and the marriage is dissolved. Initially by judgment and

decree dated 26-9-2011 the petition of the husband was

dismissed by the trial Court. The husband challenged the

said decision in this Court by filing Family Court Appeal

No.29/2011. By decision dated 22-8-2016 this Court had

remanded the matter back to the trial Court for fresh trial

and hearing on limited point. The matter was to be

decided by the trial Court only on the ground or cause of

action which had arisen, had become available to the

husband after dismissal of Hindu Marriage petition

No.210/2006, the previous petition filed by the husband

for divorce.

3) Family Court Appeal No.29/2011 was partly

allowed by this Court and direction was given with some

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3 FCA 19 of 2017

observations as follows :

“7. Naturally, if, the subsequent proceedings are
based on same cause of action, then the present
petition for divorce bearing Petition No.A-220 of
2010 was not maintainable in view of the dismissal
of HM.P. No.210 of 2006 for want of prosecution,
more particularly when the said dismissal was U/O
IX Rule 8 of the C.P.C. and the fresh proceedings on
the same cause of action are barred in view of Order
IX Rule 9 of the C.P.C. The marked distinction in the
present proceeding bearing Petition No.A-220 of
2010 is that the petitioner is pleading cruelty on the
ground that false criminal case was filed by the
respondent U/Sec.499 and 500 of the I. P. Code and
after trial present appellant has been acquitted in
the said case. The said factum will have to be
considered by the Family Court. Whether acquittal
was on technical ground or any other ground, the
effect of the same upon the case of the parties will
have to be considered by the family Court while
deciding the said petition. As the cause of action was
subsequent to the dismissal of H.M.P. No.210 of
2006, certainly it was within the province of the
Family Judge to consider the said ground of cruelty
qua the cause of action arisen subsequent to the
dismissal of the said earlier petition bearing H.M.P.
No.210 of 2006. (emphasis supplied by us).

10. The impugned judgment and order is quashed
and set aside. The parties are relegated before the
Judge, Family Court, Aurangabad for deciding
Petition No.A-220 of 2010 afresh. It is made clear
that, the appellant is not entitled to raise ground of
desertion and/or of cruelty, which was subject
matter in H.M.P. No.210 of 2006 and only the
Petition No.A-220 of 2010 shall be considered in
respect of the cause of action arisen subsequent to
the dismissal of H.M.P. No.210 of 2006.

11. As the parties have already led their evidence,
the parties are not now required to adduce the
evidence and the learned Judge of the Family Court
shall hear the final arguments of the parties and

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4 FCA 19 of 2017

decide the same in view of the observations made
herein above. The parties or their lawyers shall
appear before the Judge, Family Court, Aurangabad
on 06th September, 2016. Considering the fact that,
the matter is remitted back and the matter is only
required to be heard finally and decision given, the
Judge, Family Court, Aurangabad shall endeavour to
dispose of the petition expeditiously and preferably
within a period of three (03) months from the date
of appearance of the parties. Record and
proceedings be sent back forthwith. The family
court appeal partly allowed and disposed of. No
costs.”

4) Copy of the Hindu Marriage Petition

No.210/2006 is on the record and this document shows

that the petition was disposed of on 5-4-2008. Thus after

the remand of the matter the husband was expected to

make out a case on the basis of ground or circumstance

which had become available to him after 5-4-2008. It can

be said that in Petition No.220/2010 one new ground was

added like disposal of private complaint filed by the wife

bearing No.1413/2002 on 10-5-2010.

5) Some important dates and events need to be

mentioned in view of the aforesaid directions given by this

Court in the appeal. They are as follows :

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5 FCA 19 of 2017

Sr.No. Date Events
i 17-12-2000 Date of marriage.
ii 03/12/01 A daughter was born.
iii 29-4-2002 Notice through Advocate by husband
demanding divorce.
iv 08/05/02 Reply by the wife to the notice dated

29-4-2002 through Advocate refusing
to give divorce and asking the
husband to withdraw the allegations
made against her in the notice. In
this reply she had offered to return
to matrimonial house to resume
cohabitation.

v 26-6-2002 Private complaint No.1413/2002 filed
by wife against husband for offence
of defamation punishable under
section 500 of Indian Penal Code due
to allegations made by the husband
against her in the notice dated 8-5-

2002.

vi 30-7-2002 Application No.100/2002 filed under
section 125 of the Code of Criminal
Procedure by the wife for herself and
for daughter.

vii 29-6-2005 The decision of maintenance
proceeding in favour of the wife and
daughter.

viii 09/09/05 Criminal Revision filed by the
husband challenging the decision of
maintenance proceeding bearing
No.100/2002.

ix 17-2-2006 Revision Petition filed by the
husband partly allowed and the
maintenance granted to the daughter
reduced to some extent.

x 06/06/06 Hindu Marriage Petition No.210 of
2006 filed by husband for divorce in
Nashik Court.

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6 FCA 19 of 2017

xi 05/04/08 Dismissal of Petition No.210/2006 by
Nashik Court.
xii 10/05/10 Dismissal of private complaint
No.1413/2002 filed by wife and
acquittal of the husband in the said
case.
xiii 12/08/10 Hindu Marriage Petition No. 220 of
2010 filed by the husband in
Aurangabad Family Court for
divorce, the present proceeding.

6) In view of the rival pleadings and the directions

given in the aforesaid Family Court Appeal by this Court,

issues were famed after remand of the matter by the trial

Court as under :-

“(1) Whether the petitioner proves that he being
acquitted in the criminal case filed under Sec. 499
and 500 of I.P.C. by the respondent, amounts to
cruelty ?

(2) Whether the petitioner is entitled to dissolution of
his marriage.

                 (3)    What order and decree ?"

7) The husband is practicing as Advocate in

Aurangabad Courts. It is not disputed that the wife had

gone to the house of her parents when she was pregnant.

It is also not disputed that there was some complication

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7 FCA 19 of 2017

and due to that the wife was receiving treatment in

Nashik and the husband had even given his consent for

small operation performed on the wife in Nashik. On 3-12-

2001 a daughter was born when the wife was living in the

house of her parents.

8) In the evidence, the husband has admitted that

he received anonymous letter on 31-8-2001 and due to the

contents of this letter he became prejudiced. Whether the

person who had given his name as a well-wisher in the

anonymous letter is in existence or not was not confirmed

by the husband. Without confirmation of anything from

proper person, the husband had mentioned all the

allegations which were appearing in the anonymous letter

in the notice dated 29-4-2002 in which he had demanded

divorce from wife. The allegations were with regard to

chastity of the wife and the sender had informed that he

had illicit relation with the wife. The sender had informed

that even prior to the marriage of the wife, she had

become pregnant from him and that pregnancy was

terminated. The so called informer in the anonymous

letter had expressed that probably the wife had again

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8 FCA 19 of 2017

conceived from him. In that letter the husband was

advised to take divorce. Even when there were allegations

of such nature in the so called anonymous letter the

husband did not find it necessary even to confront the

wife or make inquiry with proper person from the place

where the wife was living before marriage. The husband

is Advocate and it can be said that he used that portion in

the divorce notice as he had intention to use that matter

in divorce proceeding. By mentioning these allegations

the husband had asked wife to go for divorce by mutual

consent. When the letter was received on 31-8-2001 the

husband has given evidence that after that letter he had

gone to Nashik, the place of the parents of the wife and he

had given his consent for operation and he wanted to take

wife back to the matrimonial house. In spite of such oral

evidence given by the husband, there is nothing on record

like notice given by the husband to ask the wife to return

to matrimonial house. Immediately after completion of

about 4 months from the date of the birth of the daughter,

the husband gave notice of divorce to the wife.

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                                        9       FCA 19 of 2017

9) In the reply given by the wife to the aforesaid

notice, wife had denied the allegations and she had

expressed that mentioning of those contents in the notice

was nothing but attempt on the part of the husband to

defame her. The wife had also asked to tender apology and

take her back to the matrimonial house. She had given

time also for that to the husband. The husband did not

respond to the reply given by the wife. It can be said that

due to this conduct and approach of the husband, the wife

was required to take some steps and those steps were

available to her in law.

10) The husband did use the aforesaid anonymous

letter for both divorce proceedings filed by him. This

circumstance and mentioning of the contents of the

anonymous letter in the divorce notice show that right

from beginning the husband had intention to use the letter

in Court proceedings, he wanted to publish the contents.

The publication of these contents definitely amounts to

defamation. The husband cannot claim excuse by saying

that it was not his allegation but it was allegation made in

anonymous letter. For this, the occupation of the husband

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10 FCA 19 of 2017

as an Advocate needs to be kept in mind.

11) The sequence of the events with dates is

already mentioned. Due to the divorce notice given by the

husband, the wife filed private complaint for offence of

defamation. As the husband wanted to use that matter in

divorce proceedings, it can be said that the wife had taken

the steps advised by her counsel. The learned Judicial

Magistrate First Class issued process in the said

proceeding. Issuance of process is a judicial act and the

Magistrate is expected to form opinion as to whether

offence is made out or not. The case was decided after

giving evidence and the Judicial Magistrate, First Class

acquitted the husband by holding that mentioning of such

imputation in the notice does not amount to publication of

defamatory matter as required in section 499 of Indian

Penal Code. Thus, acquittal is given by the learned Judicial

Magistrate First Class by holding that one of the

ingredients of the offence which is necessary for making

out the offence is not made out.

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                                              11           FCA 19 of 2017

12) The aforesaid discussion shows that the

husband admits that he had sent notice to the wife in

which the allegations which are defamatory were made.

Due to this circumstance it cannot be said that the wife

had filed false private complaint against the husband.

Acquittal in the complaint is only the ground on which the

husband is claiming divorce. The trial Court has

considered not only the aforesaid private complaint but

has considered other proceedings filed by the wife like

proceeding filed for maintenance under section 125 of the

Cr.P.C. and the proceeding filed under the Protection of

Women from Domestic Violence Act, 2005. This approach

of the trial Court is surprising. The husband was not ready

to take wife to matrimonial house and so the wife had no

other alternative than to take steps to enforce her rights.

Such steps taken by the wife by no stretch of imagination

can be called as willful ill-treatment given to the husband.

13) Learned counsel for the wife, appellant, placed

reliance on the observations made by various High Court

in some reported cases as follows :-

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                                       12         FCA 19 of 2017

(i) Amit Kausik v. Monika Gaur (2016(5) ALL MR 1.

(ii) Deeplakshmi Sachin Zingade v. Sachin Rameshrao
Zingade (AIR 2010 Bombay 16);

(iii) Chiranjeevi vs. Smt. Lavanya @ Sujatha (AIR 2006 AP

269);

(iv) Sandip Gopinath Bhalke v. Aruna Sandip Bhalke
(2009 LawSuit (Bom) 1843);

(v) Ranjit Kaur v. Jaswant Singh (FAO No.250-M of 2008
decided by High Court of Punjab and Haryana on 22-9-
2009).

14) In some of the cases the High Court had held

that filing of proceedings for maintenance or under the

provisions of the Protection of Women from Domestic

Violence Act, 2005 cannot give a ground of cruelty to the

husband as the right is given to the wife under those

provisions to take measures for her protection and

maintenance. In one case the High Court has held that

when acquittal is given on the ground of benefit of doubt,

such acquittal cannot be used by the husband as a ground

of cruelty and it cannot be said that false allegations were

made by the wife. The present matter is on better footing.

It is already observed that it cannot be said that the wife

had made false allegations or she had filed false complaint

against the husband.

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                                      13         FCA 19 of 2017

15) Learned counsel for the respondent-husband

has placed reliance on the following reported cases :-

(i) K. Srinivas Rao v. D.A. Deepa (AIR 2013 SC 2176);

(ii) K. Srinivas v. K. Sunita (2015(2) ALL MR 435 (SC));

(iii) Vinod Kumar v. Saraswathi (2016(2) Mh.L.J. 1);

(iv) Samar Ghosh v. Jaya Ghosh (2007 CJ (SC) 1025);

(v) Mangesh vs. Leena (2016(2) Mh.L.J. 252);

(vi) Manoj vs. Vijaya (2015(1) Mh.L.J. 900);

(vii) "S" vs "D" (2014(5) Mh.L.J. 181);

(viii) Anil vs. Mangal (2016(2) Mh.L.J. 166);

     (ix)    X V v. S Y (2014 CJ (Bom) 781);

(x) Manoj v. Urmila (FCA No.85 of 2015 Nagpur Bench
decided on 23-3-2017);

(xi) Bhushan v. Vandana (FCA No.49 of 2015 Nagpur
Bench decided on 6 March 2017);

(xii) Vaishali v. Rajesh (FCA No.86 of 2014 Nagpur Bench
decided on 1 March 2017);

(xiii) Bharti v. Anil (FCA No.55 of 2016 Nagpur Bench
decided on 6 February 2017);

(xiv) Tushar v. Ujwala (FCA No.257 of 2014 Nagpur
Bench decided on 1 July 2017);

(xv) Sangita v. Mahendra (FCA No.345 of 2014 Nagpur
Bench decided on 4 July 2017);

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14 FCA 19 of 2017

(xvi) Roshan v. Poonam (FCA No.89 of 2015 Nagpur
Bench decided on 7 February 2017);

(xvii) Pradeep Singh v. Nisharani (FCA No.29 of 2014
Nagpur Bench decided on 20 August 2016).

16) In view of the facts of the cases cited supra the

Apex Court and the High Courts held that there were false

allegations made by the wife, they were of serious nature

and due to conduct and circumstances it was possible to

hold that the allegations were false and they were willfully

made. Thus, on facts cruelty was made out by the husband

in those cases. As already observed, in the present matter,

there is no room to say that false private complaint was

filed by the wife. On the contrary, the husband had made

serious allegations with regard to the character of the

wife and it can be said that he used the peculiar modus

operandi. The husband admits that he had mentioned

those contents in his notice also. He had supplied copy of

the aforesaid anonymous letter to the wife. The husband

had used this letter in divorce proceeding of the year 2006

which was dismissed prior to the decision of the private

complaint.

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                                            15         FCA 19 of 2017

17) The aforesaid discussion shows that the

husband had committed wrong and he got the benefit of

his own wrong as the trial Court gave him decree of

divorce. This Court has no hesitation to hold that when

the case filed by the wife cannot be called as false case,

the husband cannot use the decision of the said case like

acquittal as the ground of cruelty for getting divorce.

Similarly, it is necessary for the Courts to keep in mind

that if the things were started by the husband and he was

at fault, he cannot be allowed to take benefit of his own

wrong. This Cort holds that the trial Court has committed

grave error in giving decree of divorce in favour of the

husband and interference is warranted in the said

decision. In the result, following order.

18) The appeal is allowed. The judgment and

decree of the Petition No.A-220/2010 which was pending

in Family Court Aurangabad is hereby set aside. The

petition filed by present respondent-husband for divorce

stands dismissed. Civil Application stands disposed of.

                 Sd/-                                             Sd/-
(A.M. DHAVALE, J.) (T.V. NALAWADE, J.)
rsl

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