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Sangita Rajesh More vs Rajesh Panditrao More on 15 January, 2018

1 FCA – 20-2017

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

FAMILY COURT APPEAL NO. 20 OF 2017

Sow. Sangita W/o. Rajesh More,
Age 29 years, Occu. Teacher,
C/o. Vishvnath Sahebrao Gaikwad,
Near Govt. Milk Dairy, Dhanegaon,
Nanded .. Appellant
(Orig. Respondent)

VERSUS

Rajesh S/o. Panditrao More,
Age 30 years, Occu.: Service,
R/o. ND 42/D/18/7, Sambhaji Chowk,
CIDCO, Nanded, Tq. Dist. Nanded .. Respondent
(Orig. Applicant)


Mr. S.B. Bhapkar, Advocate for appellant
Mr. V.P. Kadam, Advocate for respondent

CORAM : SUNIL P. DESHMUKH
P. R. BORA, JJ.

DATE : 15-01-2018

ORAL JUDGMENT (PER – SUNIL P. DESHMUKH, J.) :

1. Heard learned counsel for the appellant and learned

counsel for the respondent.

2. The appeal is preferred against dissolution of marriage

under decree of divorce by Family Court, Nanded dated 12-04-2017.

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2 FCA – 20-2017

3. Learned counsel Mr. Bhapkar for appellant submits that

the judgment and decree of Family Court has been in absence of

evidence by appellant. He submits that opportunity be given to

appellant to lead evidence in the matter, which hitherto could not be

given for various reasons, including that there are several other legal

matters pending between the parties.

4. On the other hand, Mr. V.P. Kadam, learned counsel for

respondent submits that the appeal has been preferred to harass the

respondent and to ruin his life and career. He submits that several

opportunities which had come appellant’s way, which have been

deliberately skipped to be availed with a view to vex the appellant.

He submits that there have been several instances of cruelty not

only alleged against the appellant but those have been proved. He

further submits that conduct of appellant in the matter had been

imbued with malafides and cruelty.

5. He submits that after marriage in 2008, for about two

months, appellant had behaved properly. However, thereafter, she

had threatened to discontinue relationship with the respondent.

She had been whimsical in nature. She had insulted petitioner on

his looks. Respondent had been made to bear with every kind of

cruelty including suspecting his character and respondent had not

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3 FCA – 20-2017

been suitable for the family of appellant. She had been insisting

upon to reside separately abandoning his parents and relatives. She

caused mental and physical cruelty to respondent. Respondent had

been abused and assaulted by her father and brothers. She had left

the matrimonial house without any intimation in June, 2008 and had

never resumed cohabitation. Efforts by his parents and relatives to

bring her back to matrimonial home, had been futile. Her brother

and his friends had been to the house of respondent. They had

intimidated his mother and had demanded divorce. Information in

respect of same had been lodged with police station. In the meeting

thereafter, it was decided to have divorce by mutual consent by

paying an amount of Rs. 3 Lakh and accordingly, the amount had

been paid to father of respondent by demand draft. He submits that

all aforesaid incidents have been brought before Court and Court

had decided the issues, finding that appellant had deserted

respondent for two years before petition and had treated him with

cruelty.

6. Perusal of judgment shows that appellant had resisted

the petition contending that there had been demand of Rs.5 Lakh for

getting permanent service to respondent and since her father could

not fulfill the demand, she was being harassed. She was kept

outside the house. She was prohibited from having food and good

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4 FCA – 20-2017

clothes. All sufferings were narrated by her to her parents. Her

parents had tried to patch up the differences, however, to no avail.

Efforts for reconciliation by appellant had failed. False report had

been lodged against her brother. She thus, appears to have resisted

the petition stating aforesaid.

7. Family Court has considered that the conduct of

appellant in aggregate is an indication of mental cruelty being

caused to respondent. Family Court has also referred to a case in

this respect Prakash Kalandari V/s Janvhi Kalandari AIR 2011 Bom. 119.

8. Family Court has taken stock of the situation in

paragraph no. 16 of its judgment, reading thus :

” 16. It would not be out of place to mention that the manner in
which respondent has dragged this proceeding would also
amount to causing mental cruelty to the other side. Record is
self eloquent about the persistent efforts taken by respondent to
prolong the petition. At every stage of trial she sought
adjournments on different pretext. Even when the matter was
pending for final arguments she sought adjournment on the
ground of changing her advocate. It discerns from the record
that she filed applications for interim maintenance on two
occasions and both were dismissed for default. She sought
several adjournments for cross-examination of petitioner and
finally did not cross examine him. Despite seeking ample
adjournments she did not adduce any evidence. At every stage
of the petition adverse orders were required to be passed against
the respondent. At the stage of arguments respondent filed
applications at Exh.75, 76 and 77 for setting aside the adverse
orders against her. By elaborate order dated 09/03/2017 the
applications at Exh. 75, 76 and 77 were rejected. In my opinion,
such conduct would also amount to mental cruelty to the other
spouse.”

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5 FCA – 20-2017

9. The grounds in appeal even remotely do not suggest that

appellant wants to lead evidence in the matter.

10. There is no reason coming forth for non-adducing any

evidence in trial before Family Court.

11. It appears that the respondent had given his own

evidence along with copies of certain documents viz. first

information report, judgment in regular criminal case no. 585 of

2011, deposition of petitioner in said criminal case. Despite

examination-in-chief of respondent, he had not been cross-examined

and his evidence had been unchallenged. Appellant had not stepped

into witness box. Family court found substance in the case put up

on behalf of the respondent about desertion. The Court has also

adjudged that although it has been pleaded by appellant that there

had been attempts for reunion and reconciliation, the same is

absolutely not borne out by any evidence on record. From the

evidence, it appears, the Family Court found such efforts on behalf

of respondent have been substantiated by evidence as given on

behalf of appellant.

12. It may not be out of place to refer that before present

proceeding had been initiated by respondent, there had been no

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6 FCA – 20-2017

complaint by appellant in respect of any cruel treatment being given

to her or about demand of money or of other allegations made

resisting claim under the divorce petition. It also appears that the

contention on behalf of respondent about ill-treatment particularly,

suspecting his character and threats to abandon him or about him

being not good looking, have gone un-rebutted. So is the case in

respect of her dislike to keep physical relations with him.

13. The evidence further shows that appellant’s brother and

his friends were accused of abusing and intimidating respondent and

criminal prosecution had been launched against them in respect of

the incident.

14. Thereafter, the parties appear to have resolved in a

meeting whereunder, it appears to have decided that appellant and

respondent would get separated by obtaining divorce by mutual

consent on the condition that a lumpsum amount of Rs. 3 Lakh

would be paid by respondent to appellant towards future

maintenance. Accordingly, the amount had been paid under bank

demand draft.

15. It has been contended on behalf of respondent that in

the meeting it was also agreed that the complaint against her

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7 FCA – 20-2017

brother would not be prosecuted further in order to see that he is

acquitted. Accordingly, it appears that the criminal prosecution has

resulted into acquittal. Such term had been agreed is also

evidenced in the deposition by respondent in the criminal case. The

Court had thus adjudged that the acquittal would be required to be

considered as outcome of the compromise.

16. The evidence does show that in August, 2015, a meeting

had been held amongst family members of the parties in which

dissolution of marriage had been contemplated and agreed upon.

The fact is borne out by subsequent conduct by respondent by

tendering an amount of Rs. 3 Lakh. Even conduct on behalf of

appellant lends credibility to same since it appears that on

24-08-2015, an application had been filed by appellant and

respondent for conversion of the petition filed by the respondent to

the petition under section 13-B of the Hindu Marriage Act.

Accordingly, affidavits were also filed by the parties and the matter

had been posted for judgment. However, subsequently, it appears

that appellant had resiled and purported to withdraw the consent for

divorce by mutual consent.

17. While there is no denial of the factual position about

respondent having paid Rs. 3 Lakh to appellant in furtherance of the

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8 FCA – 20-2017

decision in the meeting that had taken place amongst the family

members. This Court had, on three occasions, directed appellant to

take instructions in respect of deposit of Rs. 3 Lakh in this Court,

however, no instructions have been coming forth save and except

contention by counsel for appellant that an amount of Rs. 50,000/-

had been deposited pursuant to direction of Family Court, however,

order shows that said amount had been directed to be returned to

appellant.

18. The situation leads to that the appeal has not been

preferred bonafide.

19. In the circumstances, the appeal is devoid of any

substance and the same is dismissed.

[P. R. BORA] [SUNIL P. DESHMUKH]
JUDGE JUDGE

arp/

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