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::: Uploaded on – 11/10/2017 12/10/2017 00:31:46 :::
4 FCA 19 of 2017decide 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 2017and 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 2017conceived 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 20179) 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 2017as 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 201712) 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 201715) 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
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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 201717) 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.)
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