IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.133 OF 2006
Mr N.V.Gangal for a Appellant
Mr Anilkumar Patil for a Respondent.
CORAM : A.S.OKA AND
S.C. GUPTE, JJ.
Reserved on 09/12/2013
Pronounced on 07/03/2014
JUDGMENT: ( Per S.C.Gupte J )
This seductiveness is filed by a Appellant husband, whose petition for divorce opposite a Respondent mom was liberated by a Family Court. Considering a inlet of dispute, we have blocked a names of a parties in a means title.
2 The Appellant and a Respondent were married on 2 May 1999. Since 14 Dec 1999, a Respondent has not stayed in a matrimonial home solely for a few days between 18 Aug 2005 to 12 Oct 2005 after a Appellant filed a benefaction petition for divorce. In between there have been several matrimonial and rapist record between a parties, as mentioned hereinafter. The Appellant sought divorce on a drift of abandonment and cruelty. The Petition was liberated on 24 Aug 2006. The benefaction seductiveness was filed by a Appellant on 6 Nov 2006. During a pendancy of a benefaction appeal, a spate of rapist prosecutions has been launched by a Respondent opposite a Appellant, as narrated hereinafter. All this while a parties have been sat 2/21 FCA 133 of 2006 staying separately. There is no emanate out of a wedlock. In a backdrop of these facts, a seductiveness needs to be considered.
3 The box of abandonment as done out by a Appellant in his pleadings and justification might be quickly epitomised as follows:
(i) After about 7 months of marriage, during that there have been complicated slight and insusceptibility on a partial of a Respondent, on 14 Dec 1999 a Respondent’s father and hermit unexpected came to a matrimonial home to fetch a Respondent citing a reason of vicious illness of her mother. At that time, a Respondent was profound and not in a position to travel. She, however, left for Ahmednagar where her relatives lived. (The Respondent has denied a allegations of complicated slight and indifference, yet a occurrence of 14 Dec 1999 is admitted.)
(ii) According to a Appellant, there was no communication afterward about a illness or a state of health of a Respondent’s mother. (This is doubtful by a Respondent.)
(iii) On 18 Dec 1999, a Appellant was severely harmed in a left leg and adviced bed rest for 14 days. The Respondent was sensitive about it, yet refused to come behind to a matrimonial home.
(iv) On a Appellant’s ask a few days afterward to come back, a Respondent refused to lapse on a belligerent that a Appellant’s sister ‘S’ had ill-treated her. ‘S’ thereupon wrote a minute to a Respondent with a perspective to transparent a misunderstandings and even apologized with a perspective to placate a Respondent’s feelings.
(v) There was no response from a Respondent. She continued to stay divided from a matrimonial home. (It is a Respondent’s box that a Respondent could not embark a tour from Ahmednagar to Mumbai on medical advice.)
(vi) On 27 Apr 2000, when a Respondent was in a seventh month of pregnancy, a Appellant went to her chateau during Ahmednagar to revisit a Respondent and stayed there compartment 2 May 2000.
(vii) On 8 Jun 2000, a Appellant perceived a call that a Respondent was certified in a sanatorium for some pregnancy associated complication. On a same day, he left for Ahmednagar, and visited the
(viii) hospital. The Respondent delivered a still – innate baby.
On 12 Jun 2000, a Respondent was liberated from a hospital. The Appellant was during Ahmednangar during these days. He left for Mumbai on 14 Jun 2000.
(ix) Between Jul 2000 and Sep 2000, notwithstanding a Appellant’s several calls, a Respondent did not lapse to Mumbai.
Even a Appellant’s father’s call requesting a Respondent’s father to send her home for a eremite duty hold as a family tradition (‘Kulachar’) was not heeded. (The Respondent has denied a calls.)
(x) Between 10 Oct 2000 to 20 Oct 2000, a Respondent went on a South India Tour.
(xi) The Respondent did not come behind to a matrimonial home even during a diwali festival (around 26 Oct 2000). When a Appellant called on a Diwali day, a Respondent refused to take a call and instead her relatives spoke to a Appellant insisting that a Respondent would not speak to a Appellant. The same night, a sat 4/21 FCA 133 of 2006 Respondent called a Appellant’s elder sister and told her that she indispensable divorce. (The calls are denied by a Respondent.)
(xii) On 30 Oct 2000, a Appellant wrote a minute to a Respondent as a final try to call her back. The Appellant’s father also wrote to a Respondent’s father. There was no response.
(xiii) The Appellant, thereafter, filed a petition for compensation of conjugal rights in a Family Court during Bandra.
(xiv) On 4 Jan 2001, on a initial day of conference of a petition, a Respondent came with her luggage observant that she had come to stay with a Appellant. Both parties seemed before a matrimony counselor.
(xv) After a matter was adjourned, a Respondent and her hermit came to a Appellant’s house. According to a Appellant, they threatened to learn him a lesson. The Appellant insisted that a Respondent should come to stay with him by a justice order.
(xvi) On a successive date of hearing, i.e. on 26 Feb 2001, a Appellant practical for withdrawal of his petition. The Appellant was authorised to repel a petition on 17 Mar 2001.
(xvii) During a pendancy of a petition, a Respondent practical for upkeep underneath Section 125 of Criminal Procedure Code before a justice of Chief JMFC during Ahmednagar. There was an sequence upheld for upkeep of Rs. 1500 p.m., afterwards reduced to Rs. 750 p.m. and easy in rider to Rs. 1500 p.m. The Appellant has been frequently profitable upkeep given then.
(xviii) Thereafter, on 6 Aug 2001, a Respondent filed her petition for compensation of conjugal rights in a District Court during Ahmednagar. The Appellant had to take leave and transport from Mumbai to Ahmednagar to attend a conference from time to time. The petition was finally liberated on a belligerent of wish of territorial jurisdiction.
(xix) All this while a parties stayed separate. The Appellant in Jun 2003 sent a notice to a Respondent job for an gentle settlement, yet a Respondent by her advocate’s respond refused.
(xx) Finally, a Appellant filed a benefaction petition for divorce on 19 Aug 2003.
The Respondent, in her respond as good as evidence, some-more or reduction supposed a above referred to unclothed facts. (Her denials, wherever made, are indicated opposite any of these facts.) The categorical refrain of a Respondent has been that a Respondent never declied to go behind to a Appellant for cohabitation; that a Appellant or his family members were “never incited behind from 14 th Jun 2000 to take respondent behind to Mumbai”; that a Appellant did not “come to take respondent behind yet he betrothed so upto Diwali 2000. In fact respondent hoped so”; and that so many times a Respondent “urged a postulant and his relatives to come to see her and take her behind for cohabitation”.
5 In a face of a tough contribution set out above, a Respondent’s defence and justification that she was prepared to cohabit, yet a Appellant never came to take her behind to a matrimonial home, clearly sounds vale and unbelievable. There are broadly 3 durations in that a whole duration of earthy subdivision between a parties can be divided. The initial period, from 14 Dec 1999 sat 6/21 FCA 133 of 2006 ( when a Respondent left for Ahmednagar) to 12 Jun 2000 (when she was liberated from a hospital), clearly indicates that it was a Respondent who on her possess left a matrimonial home. One might not charge any belligerent of abandonment when a Respondent left for Ahmednagar on 14 Dec 1999. It is plausible that a Respondent’s depart from a matrimonial chateau on 14 Dec 1999 was in perspective of her mother’s illness, yet a resources in that she left seem rather strange. But there is no adequate reason given she did not lapse behind during any time before 12 Jun 2000. It contingency be borne in mind that during this duration there was even an partial of a Appellant pang detonate in his leg and being suggested a fortnight’s bed rest. (This fact is not denied by a Respondent possibly in a pleadings or evidence.) In her pleadings and evidence, a Respondent’s chronicle concerning this duration appears to be this:
(i) The Respondent left for Ahmednagar on 14 Dec 1999 with her father and brother. At that time, she told a Appellant that she would lapse on a really successive day.
(ii) The Respondent’s mom had blood vigour problem. She, however, recovered after two/three days.
(iii) The Respondent’s health did not concede her to transport behind to Mumbai between 14 Dec 1999 and compartment 12 Jun 2000. She stayed during Ahmednagar as per medical advice.
(iv) The Respondent could not revisit a Appellant when he met with an accident, given a alloy suggested her not to embark a journey.
6 There is no anxiety in a Respondent’s pleadings or justification to any sat 7/21 FCA 133 of 2006 critical illness or pregnancy associated snarl during this period. No news or medical record is produced. No justification of doctor’s recommendation is led. In a deficiency of such evidence, it is tough to trust on a basement of her unclothed word that during this whole 6 months period, i.e. from 14 Dec 1999 (when she left for Ahmednagar observant that she would lapse a successive day) and 8 Jun 2000 (when she was certified for delivery), a Respondent could not come behind to Mumbai for medical reasons or on a doctor’s advice. The Respondent’s act of not returning to a matrimonial home during a duration contingency be, therefore, attributed to her unwavering preference not to return. At a same time, it ought to be remarkable that this unwavering preference is not actuated by any blunder or wrong on a partial of a Appellant. The Respondent has not purported any act of cruelty on a partial of a Appellant during any time before 14 Dec 1999. The Respondent has certified in her Written Statement that in Mumbai there were usually 2-3 persons in her matrimonial family and sufficient accommodation where she positively enjoyed her privacy. Even during a duration of a Appellant’s stay during Ahmednagar, in Apr 2000, a Appellant admittedly visited Ahmednagar and stayed during her parents’ chateau for a integrate of days when a parties “celebrated a birthday of a Respondent and Marriage Aniversary, showed adore and love to any other”. The inevitable deduction from a pleadings and justification remarkable above is that a Respondent left, and stayed divided from, her matrimonial home of her possess resoluteness and for no wrong on a partial of a Appellant from 14 Dec 1999 compartment 12 Jun 2000.
7 The schooled conference decider has, so distant as this duration is concerned, while acknowledging that a Respondent has not constructed any documentary reason of sat 8/21 FCA 133 of 2006 a fact that she was medically suggested not to take a prolonged tour (between Ahmednagar and Mumbai) during a days of pregnancy (i.e. from a third month of pregnancy compartment her smoothness in a ninth month) or not examined any alloy in support, found her justification plausible given “the justification of a postulant proves that she underwent several tests of sonography”. The schooled conference Judge celebrated that it has been brought on record that a Respondent’s health was really ethereal and she was weak. As we have discussed above, there is positively zero on record to interpretation that a Respondent’s health was so ethereal or diseased that she could not embark a tour from Ahmednagar to Mumbai. A profound lady undergoing sonography on a integrate of occasions proves zero concerning such ethereal or diseased health. That a Appellant himself took her for medical check adult in Feb 2000 also proves nothing. The courtesy that “had there been no medical advice, he would have insisted a Respondent to come behind to a matrimonial home yet a fact that conjunction he not his family members insisted her to come behind to a matrimonial home, is sufficient to infer that a Respondent was underneath medical recommendation of Dr. Joshi and that she was suggested not to embark a journey”, is a rather weird assessment. The whole appreciation of justification by a schooled conference Judge in this seductiveness exhibits a critical error.
8 The second duration is between 12 Jun 2000 (when a Respondent was liberated from a maternity home after giving birth to a still innate baby) and 7 Nov 2000 (when a Appellant filed his petition for compensation of conjugal rights). The Respondent continued to stay during her parents’ chateau in Ahmednagar via this period. There is no box of any medical reason for this stay. The sat 9/21 FCA 133 of 2006 usually reason of a Respondent for not returning to a matrimonial home during this duration is that “the postulant or his family members was (sic were?) never incited behind from 14 Jun 2000 to take a respondent behind to Mumbai”;
that they had “not inquired about her health or asked her to lapse behind to her matrimonial home”; that “the respondent never denies to go with a postulant for cohabitation”; and that “the respondent herself requested and called many times to a postulant to take her behind yet a postulant himself never responded to a Respondent’s request”. None of this is, however, testified by a Respondent in her conference in chief. Whilst it is a box of a Appellant that he done several attempts by himself and by his family members to convince a Respondent to come back, a Respondent has denied such attempts. At a same time, a Respondent has certified in her Written Statement that there were no disputes between a Appellant and a Respondent during this duration and there was therefore no doubt of any reconciliation. In a face of these pleadings and a state of justification as it stands, it is not probable to trust a Respondent’s box that she was penetrating to lapse a matrimonial home. The Respondent had left a matrimonial home on her own, never worried to lapse to it and can't be listened to contend that this was given a Appellant did not come to take her back.
9 For this period, a justification for a Respondent’s continued stay during her parental home deliberate by a schooled conference Judge usually seems to be that a Appellant himself did not go to fetch a Respondent after 12 Jun 2000. As we have remarkable above, deliberation a contribution that a Respondent left a matrimonial home of her possess resoluteness and chose to stay for over 6 months afterward during a sat 10/21 FCA 133 of 2006 parental home yet justification, that a Appellant did not revisit a Respondent’s chateau to fetch her is no “reasonable cause” for staying divided for a Respondent.
10 The third duration was between 7 Nov 2000 and 19 Aug 2003 (when a benefaction divorce petition was filed by a Appellant). Whilst assessing this period, it is required to bear in mind that during this duration both a parties would be underneath authorised recommendation and their actions ought to be noticed accordingly.
The Respondent came with her bag and container purportedly to stay with a Appellant on a really initial day of a conference of a Appellant’s petition for restitution. The Appellant was questionable of this movement and insisted that a Respondent should come by a justice order. This proceed of a Appellant, deliberation what had transpired so far, as recounted above, can't be faulted. It positively does not vaunt any refusal to acknowledge a Respondent to a matrimonial home. The Respondent insisted on a withdrawal of a Appellant’s petition for restitution. She seemed to have prevailed and a Appellant withdrew his petition. The Respondent, however, did not stay during a matrimonial home after a withdrawal. On a other hand, usually before a petition was withdrawn, on 9 Mar 2001, she filed for upkeep underneath Section 125 of Criminal Procedure Code before a Chief JMFC during Ahmednagar. This was obliviously, a opposite pierce in a authorised game. Whatever be a merits, it positively does not vaunt any genuine enterprise to pierce behind to a matrimonial home. From thence on, what follows is a authorised diversion of one-up-manship. What, however, stands out via this duration is that there is no try to lapse to a matrimonial home on a Respondent’s partial and on a other hand, there is an animus to sat 11/21 FCA 133 of 2006 stay divided from it.
11 As regards this period, besides a unclothed statements of a Respondent that she had bona fide enterprise to stay with a Appellant, a usually other element deliberate by a schooled conference Judge for final that a Respondent did make an try to resume cohabitation are a dual incidents; i.e. (i) a occurrence on a initial date of conference of a Appellant’s petition for compensation of conjugal rights, when a Respondent came to a matrimonial home with her hermit expressing a enterprise to stay during a matrimonial home and (ii) a withdrawal of his petition for compensation by a Appellant notwithstanding a Respondent expressing her eagerness to cohabit . As we have deliberate above, both incidents have been sufficient explained by a Appellant and his control therein is in gripping with typical tellurian inlet and is usually to be approaching of him courtesy being had to a attendant circumstances. These incidents conjunction uncover any genuine enterprise on a partial of a Respondent to cohabit with a Appellant nor vaunt any refusal for cohabitation on a partial of a Appellant.
12 What clearly emerges from a above research is that there is not usually an determined fact of separation, yet that a subdivision is willful. The Respondent forlorn a Appellant intending to henceforth stop cohabitation and zero of this is attributable to any wrong on a partial of a Appellant. There is a transparent box of desertion.
13 The essential requisites of abandonment have prolonged been staid by a Supreme Court even before a Hindu Marriage Act, 1955 came into force. The Supreme Court, while traffic with a box underneath Bombay Hindu Divorce Act, sat 12/21 FCA 133 of 2006 1947, in Bipinchandra Jaisinghbhai Shah Vs. Prabhavati1, hold as follows:
“For a corruption of desertion, so distant as a deserting associate is concerned, dual essential conditions contingency be there, namely, (1) a factum of separation, and (2) a goal to move cohabitation henceforth to an finish (animus deserendi).
Similarly dual elements are essential so distant as a forlorn associate is concerned: (1) a deficiency of consent, and (2) deficiency of control giving reasonable means to a associate withdrawal a matrimonial home to form a required goal aforesaid. The postulant for divorce bears a weight of proof those elements in a dual spouses respectively………………………………. Desertion is a matter of deduction to be drawn from a contribution and resources of any case. The deduction might be drawn from certain contribution that might not in another box be able of heading to a same inference: that is to say, a contribution have to be noticed as to a purpose that is suggested by those acts or by control and separation.
expression of intention, both maiden and successive to a tangible acts of If, in fact, there has been a separation, a essential doubt always is either that act could be attributable to an animus seperandi. The corruption of abandonment commences when a fact of subdivision and a animus deserendi co-exist. But it is not required that they should embark during a same time. The de facto subdivision might have commenced yet a required animus or it might be that a subdivision and a animus seperendi coincide in indicate of time”
14 This was after endorsed by a Supreme Court in a box of Lachman Utamchand Kripalni Vs. Meena 2, while traffic with a box of abandonment underneath a Hindu Marriage Act, 1955, in a following words.
“Once desertion, as tangible earlier, is determined there is no requirement on a forlorn father ( holding a box where he is a forlorn spouse) to seductiveness to a deserting associate to change her mind, and a business that a forlorn father creates no bid to take stairs to accept a settlement with a mom does not hinder him from receiving a service of authorised separation, for once abandonment is valid a deserting spouse, so prolonged as she evinces no frank goal to outcome a settlement and lapse to a matrimonial home, is reputed to continue in desertion. Of course, a matter would, wear a opposite 1 A.I.R. 1957 S.C. 176 2 A.I.R. 1964 S.C. 40 sat 13/21 FCA 133 of 2006 mettle and opposite considerations would arise where before a finish of a orthodox duration of 2 years or even thereafter, before a filing of a petition for authorised subdivision a control of a forlorn associate was such as to make a deserting associate terminate from creation any try during reconciliation”
15 In a some-more new case, a Supreme Court in a box of Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi 3, practical a law enunciated above as follows:
“Coming to a box during hand, it is suggested from a evidene on record, as discussed in a judgments of a conference justice and a High Court that a respondent had left to her parents’ chateau for birth of a child, that apparently can't be construed as an countenance of her enterprise to leave her father permanently; yet after a birth of her child when attempts were done by a appellant, his relatives and relations, she laid down a condition that a appellant should live in a detached chateau from his relatives holding a defence that her father-in-law had attempted to hurt her, that reason she signally unsuccessful to establish. In a meantime, a father of a appellant lapsed someday in 1988, putting an finish to a supposed reason of contravention of her father-in-law. There is zero on record that afterward she voiced her enterprise to join her father during a matrimonial home. It is applicable to state here that a appellant is a usually son of his relatives and as expected, he was not peaceful to settle a detached chateau withdrawal his relatives to live alone in their aged age. The accumulative outcome of a resources and a control of a respondent is that she had given countenance of animus deserendi. Thus, a dual mixture of a matrimonial corruption of abandonment i.e. subdivision in fact and animus deserendi have been determined by a appellant. The schooled conference Judge, carrying courtesy to a contribution and resources of a case, was right in recording a anticipating that a father had successfully determined a box of abandonment by a mom and sportive a option vested underneath Section 13-A of a Act, a schooled conference Judge had postulated a direct of authorised subdivision instead of divorce”
16 The judgments of a Supreme Court referred to above clearly settle that for a matrimonial corruption of desertion, so distant as a deserting associate is concerned, there are dual essential conditions, namely,
(i) a factum of separation; and
(ii) a goal to move cohabitation henceforth to an finish (animus deserendi).
Similarly dual elements are essential so distant as a forlorn associate is concerned, namely,
(i) a deficiency of consent; and
(ii) a deficiency of control giving reasonable means to a associate withdrawal a matrimonial home to form a required goal referred to above.
No doubt it is a postulant for divorce who bears a weight of proof these elements in both a spouses respectively. But all these elements are questions of fact. The resources that a deserting associate has physically stayed divided from a matrimonial home; that there is deficiency of agree for such stay from a forlorn spouse; that there is a disaster to justify any reason for such stay; and that there is a transparent repudiation to denote eagerness and eagerness to liberate a stability requirement to lapse to a matrimonial home, taken together, might be sufficient to pull a end that there was an animus deserendi and a same was yet a reasonable cause. Once such abandonment is established, there is no requirement on a forlorn associate to seductiveness to a deserting associate to change his or her mind or indeed take stairs to outcome a settlement or move a deserting associate behind to a matrimonial home.
17 In a benefaction case, it is certified that a Respondent left a matrimonial
home on her possess and not during a behest of a Appellant. No doubt when she left a matrimonial home on 14 Dec 1999, a Respondent can't be pronounced to have any animus deserendi. But a resources that yet her husband’s agree she continued to stay divided and did not lapse to a matrimonial home via this period, while her father did not give her any means to stay away, exhibits zero yet animus deserendi. Even if one gives her a advantage of doubt, yet as we have discussed above there is no range for any, that compartment Jun 2000, a Respondent was fit in staying divided from a matrimonial home on medical grounds, there is no box whatsoever to stay divided after 12 Jun 2000. The usually belligerent purported for such stay was repudiation of a father to come to take a Respondent back. There is, as we have discussed above, no piece in this ground. The animus desersendi during slightest given 12 Jun 2000 is clearly established. This animus has continued via a orthodox duration of dual years and compartment a petition for divorce was filed by a Appellant. A box of abandonment is, thus, conclusively established.
18 We have remarkable above a matrimonial and rapist record between a parties compartment a date of a benefaction divorce petition. They vaunt a sour a authorised conflict between a spouses. But what followed a filing of a petition can usually be described as bizarre. The litany of prosecutions is recounted below:
(i) Soon after a Appellant filed his divorce petition, a Respondent filed Miscellaneous Civil Application No. 15 of 2004 before this Court during a Aurangabad Bench underneath Section 24 of Code of Civil sat 16/21 FCA 133 of 2006 Procedure for send of a Petition for grouping along with her petition for compensation during District Court during Ahmednagar or during Family Court during Pune. The Civil Application was liberated by a Aurangabad Bench by a sequence antiquated 04.03.2005.
(ii) On 10.12.2005, a Respondent filed F.I.R. No. Cr. 473 of 2005 opposite a Appellant, his sister and his father underneath Section 498-A of IPC. The FIR resulted into RCC No. 210 of 2006.
(iii) The Respondent filed Miscellaneous Application No. 16/2007 in RCC No. 210 of 06 opposite a Appellant underneath Section 410 of Cr.PC. before a Chief Judicial Magistrate, Thane District Court on 25.01.2007 for send of a pronounced box from that Court to other JMFC in a same Court on a belligerent of purported bias of a Judge. The same was cold by a Respondent on 11.06.2007;
(iv) Prior to a withdrawal of a Miscellaneous Application, on 01.06.2007, a Respondent filed another Criminal Application No. 1863 of 2007 before this Court praying for send of RCC No. 210 of 2006 from a Court of JMFC Thane to a Court of JMFC Ahmednagar. That Application(under Section 407) was filed tentative a other Miscellaneous Application No.16/07 (under Section 410) filed in Thane District Court. In this box conjunction a Appellant nor a State of Maharashtra was served. Criminal Application No. 1863 of 2007 was liberated by this justice vide sequence antiquated 02.08.2007 holding that a Court was not tender with a reasons set out in support of a pronounced send application;
(v) On 14.06.2007, a Respondent filed CA No. 194 of 2007 in a benefaction divorce petition for upkeep underneath Section 24 of a Hindu Marriage Act in this Court, that was likely of by grouping halt upkeep of “Rs. 5000 in all” vide sequence antiquated 29.08.2007;(vi) On 10.10.2007, a Respondent filed SLP (Criminal) No. 6354 of 2007 before a Supreme Court in that she assailed a sequence of this Court in Criminal Application No. 1863 of 2007. The Supreme Court liberated a SLP as withdrawn;
(vii) On 31.01.2008, a Respondent filed Special Civil Suit No. 4 of 2008 underneath Section 18 (2) of a Hindu Adoption and Maintenance Act opposite a Appellant, his sister, father, elder sister in a Court of CJSD Ahmednagar. In that suit, a Respondent claimed that she was entitled to redeem Rs. 45 Lakhs from a defendants. The Learned CJSD Ahmednagar was gratified to extend an ex-parte ad-interim claim on 04.01.2008. The Appellant and others filed a respond to a halt focus and a ex-parte sequence was after vacated by a schooled Judge;
(viii) On 14.01.2008, in annoy of a withdrawal of SLP 6354 of 2007, a Respondent again filed Criminal Miscellaneous Application No. 6 of 2008 in a Sessions Court, Thane underneath Section 408 of Cr.P.C.
In a pronounced Application, a Respondent sought send of a pronounced box from one Court to another Court in a JMFC Thane. The Application was deserted by a Court by sequence antiquated 28.04.2008;
(ix) On 09.04.2008, a Respondent filed Consumer Case No. 150 of 2008 opposite a Appellant and Director and Manager of HDFC Bank before a District Consumer Redressal Forum during Ahmednagar on a drift that HDFC Bank suggested A/c No. of a Respondent and this amounted to a crack of trust/contract and that complicated waste were incurred due to such crack of trust.
Compensation volume of Rs.5,00,000/- was claimed from any delinquent HDFC Bank Officer. The box was liberated by a Forum in limini vide sequence antiquated 25.06.2008;
(x) On 09.07.2008, a Respondent filed Criminal Writ Petition No. 1404 of 2008 in this Court opposite a sequence of Thane Sessions Court in Miscellaneous Application No. 6 of 2008. This Court was gratified to reject a Petition by a minute sequence antiquated 25.07.2008;
(xi) In or about Aug 2009, a Respondent filed SLP No.7790 of 2009 in a Supreme Court opposite a sequence of this Court in WP No. 1404 of 2008. The same was deserted by a Supreme Court on 6.11.2009.
(xii) On 14.08.2008, a Appellant filed Criminal Application No. 2820 of 2008 in this Hon’ble Court in RCC No. 210 of 06 for swift conference in a time firm schedule. However, a same came to be dismissed;
(xiii) On 04.05.2010, a Caveat was filed by a Respondent opposite Exb. No. for recasting of issues in Special Civil Suit No. 4 of 2008 in a Aurangabad Bench of this Court;
(xiv) On 09.06.2010, a Appellant filed Writ Petition No. 5176 of 2010 in a Aurangabad Bench of this Court, underneath Section 10 for staying sat 19/21 FCA 133 of 2006 a sequence of CJSD. The Aurangabad Bench of this Court was gratified to extend a stay of a record in Spl. Civil Suit 04 of 08 vide sequence antiquated 17.08.2010;
(xv) On 19.10.2010, a Respondent filed Civil Application No.15801 of 2010 for expediting final conference of WP No. 5176 of 2010 during Aurangabad Bench of this Court. The Aurangabad Bench was gratified to concede a focus and correct a date as 8 Jun 2011 vide sequence antiquated 05.04.2011;
(xvi) Finally on 17.12.2011 an sequence of exculpation in Section 498-A box was upheld by a Thane District Court. The Appellant and his father were clear and a box opposite sister Sandhya abated as she lapsed on 07.03.2011;
(xvii) On 16.01.2012, a Respondent filed Civil Application No.1855 of 2012 for regulating a date of final conference for WP/5176/2010. This Court was gratified to concede a focus and correct a date as 30.03.2012 vide sequence antiquated 24.02.2012.
19 The record referred to above were all successive to a filing of a benefaction divorce petition yet we have authorised a Appellant to move these on record as additional evidence. The factum of these record as also a several orders upheld therein are matters of record and not doubtful between a parties.
20 As hold by a courts in a series of cases, filing of fake rapist cases opposite a associate is itself an act of mental cruelty and can really good means a sat 20/21 FCA 133 of 2006 direct of divorce. The spate of record launched one after a other in a benefaction box suggests a antagonistic vigilant to inflict pain on a competition spouse.
But even if one might not during this theatre interpretation any such vigilant on a Respondent’s part, in a smallest what it shows is that a animus deseredi has not usually continued throughout, yet that a matrimonial bond is now irretrievably over repair. The parties were married in May 1999. There is no emanate out of a wedlock. Since Dec 1999 a spouses settled vital detached and have not cohabited for a final fifteen years. In between these fifteen years, as suggested by a conference Court, a spouses even stayed together for a few days between 18 Aug 2005 and 12 Oct 2005 on a conference basis. But even that did not work out. On a other hand, it led to a filing of a censure by a Respondent underneath Section 498A of IPC opposite a Appellant and his family members, as mentioned above. During all these years, a parties have acrimoniously contested 3 matrimonial petitions, a few upkeep applications, and a measure of rapist proceedings. The substratum of a matrimony has prolonged left and a matrimony has turn a small fiction, unresolved somehow by a authorised tie. The doubt is, should a justice in such a box exclude to disjoin that tie, that too in a name of preserving a sanctification of marriage.
21 The Supreme Court in a box of Naveen Kohli Vs. Neelu Kohli 4, dealt with this emanate succinctly as follows:
74. We have been predominantly tender by a care that once a matrimony has damaged down over repair, it would be impractical for a law not to take notice of that fact, and it would be damaging to 4 (2006) 4 SCC 558 sat 21/21 FCA 133 of 2006 multitude and damaging to a interests of a parties. Where there has been a prolonged duration of continual separation, it might sincerely be surmised that a matrimonial bond is over repair. The matrimony becomes a fiction, yet upheld by a authorised tie. By refusing to disjoin that tie a law in such cases does not offer a sanctification of marriage; on a contrary, it shows meagre courtesy for a feelings and emotions of a parties.
75. Public seductiveness final not usually that a married standing should, as distant as possible, as prolonged as possible, and whenever possible, be maintained, yet where a matrimony has been wrecked over a wish of salvage, open seductiveness lies in a approval of that fact.
76. Since there is no excusable approach in that a associate can be compelled to resume life with a consort, zero is gained by perplexing to keep a parties tied perpetually to a matrimony that in fact has ceased to exist.
22 The observations quoted above directly request to a contribution of a benefaction case. It would be a grave misapplication not to disjoin a marital tie between a parties.
23 For all these reasons, we set aside a visualisation of a Family Court and extend a direct of divorce to a Appellant. There shall no sequence as to costs.
24 On a request done by a schooled Counsel for a Respondent, we curb a Appellant from constrictive matrimony for a duration of ninety days from today.
( S.C.Gupte J. ) ( A.S.Oka J. )