1 fca-148.08
pmw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.148 OF 2008
‘H’ … Appellant
Versus
‘W’ … Respondent
Mr. Shekhar Jagtap a/w Mr. Akshay Kapadia i/by J. Shekhar Co., for
the Appellant.
Ms. Sheeja John i/by M/s. M.P. Savla and Co., for the Respondent.
CORAM : A.S. OKA
SMT. ANUJA PRABHUDESSAI, JJ.
DATE ON WHICH SUBMISSIONS WERE HEARD : 9th FEBRUARY, 2017
DATE ON WHICH JUDGMENT IS PRONOUNCED : 7th JULY, 2017
JUDGMENT (PER A.S. OKA, J.):-
1 By this Appeal, the appellant – husband has taken an
exception to the judgment and decree dated 16 th February, 2008 passed
by the learned Judge of the Family Court No.6, Bandra, Mumbai. We
are directing that names of the parties in the cause title of the judgment
shall be masked and accordingly, the appellant and the respondent have
been described as “H” and “W” respectively. We have also masked the
names appearing at various places in this judgment.
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2 We had kept this Appeal pending with the hope that the
parties will see the reason and will come out with amicable solution.
But, so far, there is no settlement.
3 The marriage between the parties was solemnizsed on 6 th
July, 1994 in accordance with the Special Marriage Act, 1954 (for short
“the said Act”). At the time of marriage, the respondent – wife was a
spinster. However, the appellant – husband was a divorcee. He had two
children from his first marriage. At the time of marriage, the age of his
son was 15 years and the age of the daughter was 8 years. The
appellant – husband filed a Petition No.A-507 of 2000 of 2 nd May, 2000
seeking a decree of divorce on the grounds set out in clauses (d) and
(e) of Sub-Section (1) of Section 27 of the said Act. The first ground
was of cruelty and the second ground was that the respondent has been
suffering intermittently from mental disorder of such kind and to such
an extent that the appellant – husband cannot be reasonably be
expected to live with her. A decree of injunction was prayed for by the
appellant – husband in respect of Flat No.404 (for short “the said flat”)
in Twin Star Building, Shristy Complex, Saki Vihar Road, Powai,
Mumbai. Injunction sought was for restraining the respondent – wife
from entering upon or remaining upon the suit flat. The prayer for
perpetual injunction was also sought restraining the respondent – wife
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from visiting premises of M/s. Vitrun Glass where the appellant was
working and from contacting the appellant’s employer on telephone.
The Petition was contested by the respondent – wife by filing her
written statement. The appellant adduced evidence of himself by filing
an affidavit in lieu of examination-in-chief at Exhibit – 21 and
additional affidavit in lieu of examination at Exhibit – 31. The
respondent examined herself by filing an affidavit in lieu of
examination-in-chief. Apart from examining themselves, the parties did
not examine any other witnesses but both parties adduced documentary
evidence. By the impugned decree, the learned Judge of the Family
Court held that the appellant was not entitled to any relief and
proceeded to dismiss the Petition.
4 With a view to appreciate the submissions canvassed across
the bar, a brief reference to the pleadings of the parties will have to be
made. In the Petition, the appellant pointed out that the respondent has
been working as Air Hostess with the Indian Airlines for more than 20
years and that she was continuously posted at Delhi. The appellant was
working at Delhi from the year 1982 to 1987. Thereafter, the appellant
started residing in Mumbai. The case made out by the appellant is that
at the relevant time, the respondent was earning Rs.60,000/- to
70,000/- per month with perquisites. According to the case of the
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appellant, he had clearly informed the respondent before solemnization
of marriage that if at any stage after the marriage, the respondent
creates a situation where the appellant is called upon to choose
between her and his children, he will choose his children. It is the case
of the appellant that the respondent agreed to the said condition and
also promised to assist the appellant to look after the children.
5 According to the case of the appellant, from the next day of
marriage, the respondent started quarreling with him and started
criticizing the his children. She started criticizing the appellant for
talking to his daughter for a long time on telephone.
6 A very serious allegation is made by the appellant that the
respondent could not sleep between 11.00 pm to 4.00 am. The
allegation is that the respondent used to pick up some quarrel on some
trifle issue in the night and start shouting at and abusing the appellant
in a loud tone which was to continue upto 4.00 am or 5.00 am. The
allegation of the appellant is that thereafter the respondent used to
sleep and used to get up at 11.00 a.m.
7 According to the case of the appellant, in order to appease
her relatives, the respondent asked the appellant to undergo one more
marriage ceremony in Delhi which was held in April, 1995 and only
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after that ceremony that the parties announced their marriage to their
friends and relatives. According to the case of the appellant for two to
three years, the respondent continued her tirade from 11.00 pm to 4.00
am whenever she used to be in Mumbai with him. According to him,
the respondent used to quarrel over trifle matter and refused to talk to
the appellant or come to Mumbai for two to three months. Sometimes,
she used to stay away even for a continuous period of six months.
Further the allegation is that the respondent used to call the appellant
from Delhi several times between 11.00 pm to 5.00 am and abuse him
in a filthy language.
8 According to the case of the appellant, as this was his
second marriage, he tried his level best to save the marriage by going to
the extent of tendering apology to the respondent. According to the
case of the appellant, when his employer gave him a new car, on the
request made by the respondent, he gave his old car to the respondent
for her use at Delhi. Accordingly, by the said car, they travelled upto
Delhi and the appellant stayed for three days with the respondent in
Delhi when the appellant gifted a television set to the respondent. It is
alleged that in the year 1996, the appellant took the respondent to
Nainital for a holiday for about 4-5 days when the respondent was
happy and behaved well. Though the appellant tried to persuade the
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respondent to give up her employment in Delhi or at least get transfer
to Mumbai, the respondent used to insist on the appellant shifting to
Delhi. The appellant has set out the details of the travelling undertaken
by him along with the respondent to various places. The appellant has
stated that in the year 1998, he took the respondent to various places in
Maharashtra including Ellora Caves at Aurangabad. He has stated that
whenever the respondent used to be at home, she continued her
conduct of not sleeping upto 4 to 5 am and shouting and screaming at
the appellant.
9 The appellant has stated that he took leave from his
employer from May, 1999 and took the respondent to a tour of temples
in South India. Thereafter, the appellant received a complaint from his
children that the respondent had been telephoning them at their
mother’s residence and abusing them and shouting at them. The
appellant alleged that due to quarrelsome nature of the respondent
during the span of 10 years, the appellant could take his children away
for holiday only once in March, 1999.
10 It is the allegation of the appellant that the respondent had
been threatening that if she does not conceive, she would commit
suicide. His allegation is that the respondent’s behaviour continued to
become more and more neurotic.
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11 The appellant further alleged that in February, 2000 the
respondent came to Mumbai for 10 to 12 days for wedding of his
nephew. It is alleged that in the marriage function, the respondent
started a quarrel with the appellant in presence of others. Ultimately,
the appellant had to take her outside the place of function for pacifying
her. In the function, on the same day, the respondent again started
quarreling by objecting to the act of the appellant of talking to his
family relatives and especially his niece who had come from Kenya. It is
alleged that even at the time of reception, she created a scene.
12 In the night on the same day, the respondent refused to
stay with the appellant and demanded money to enable her to stay in a
hotel in Mumbai and returned to Delhi next day. While the appellant
and the respondent were travelling by auto rickshaw, the respondent
kept on shouting and asking for the address of mental hospital to the
people around.
13 The case of the appellant husband is that after few days,
she came back to Mumbai and was staying in Centaur Hotel at Juhu
where she was put by her employer. The appellant reached the Hotel
room of the respondent when she was performing Pooja. It is alleged
that after the Pooja was over the respondent started shouting at the
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appellant and abusing the appellant. She wrote a note in which she
stated that if anything happens to her, the appellant would be
responsible for the same.
14 We are quoting paragraphs 17 to 21 of the Petition as heavy
reliance was placed on the incidents narrated therein. Paragraphs 17 to
21 read thus :-
“17. The petitioner says that, similarly the respondent came
and stayed with him for 10 days each in March and
April, 2000 each. Throughout the said two visits, the
respondent was continuously threatening to commit
suicide by jumping down from the petitioner’s fourth
floor flat or taking sleeping tablets. With every such
threat, the respondent used to remind the petitioner
that she not only has kept the said note in her purse but
also has kept similar notes at her residence in Delhi. At
the same time, the respondent was forcing the petitioner
to ensure that she somehow conceives for which
purpose she forced the petitioner to take her to the
infertility clinic, where the doctors tried for a test tube
baby but did not succeed as the respondent did not have
sufficient ovulation. Thereafter, the respondent was
undergoing IUI (Intra Uterine Insemination). Inspite of
trying all the methods, it did not succeed.
18. On 10th April 2000, the respondent asked the
petitioner for some monies. The petitioner took out a
bundle of notes from the cupboard and gave it to
her. The respondent, on the pretext of prying open8 of 22
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9 fca-148.08the stapler pins on the bundle of notes, picked up a
knife from the kitchen and came back to the
bedroom. The petitioner was surprised to note that
instead of opening the said pins, the respondent
stood staring at the petitioner in a strange way,
brandishing the knife and said “Shall I kill myself ?”
the petitioner was afraid that she may actually stab
herself, and he quietly went down the stairs and
brought the watchman of the building up, in case he
needed help. The watchman was shocked to see the
respondent brandishing the knife and asked her to
give the knife to him. The respondent looked at the
watchman blankly for sometime and thereafter gave
the knife to the watchman. Thereafter, the
respondent has been threatening to do an “Anju
llasayi” to the petitioner i.e., commit suicide and put
the blame on the petitioner. The respondent also
threatened the petitioner that if she could not live in
his flat, she would set it on fire. The petitioner says
that, the Respondent was quite capable of putting
the said threat into practice. It was not possible for
the petitioner to bear any more the cruelty, torture
and mental trauma heaped upon him by the
respondent. On 23-4-2000, the respondent left for
Delhi. The petitioner by his Advocate’s letter dated 24-
4-2000 addressed to the Sr. Inspector, Sakinaka Police
Station, to prevent the respondent from taking the law
into her own hands. A copy of the said letter dt. 24-4-
2000 is annexed hereto and marked Ex. “C”.
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19. Due to the said abnormal, violent and cruel
behaviour of the respondent, the petitioner took the
respondent to Dr. Jyoti Dass, a psychiarist, who
examined and a sitting of one hour, who prescribed
some tablets and asked them to come back after a
few days. The respondent refused to meet her again.
The petitioner met Dr. Dass after a week, and
informed her of Respondent’s recultance to meet her.
Dr. Dass gave to the petitioner gave to the petitioner
a Certificate dt. 14-4-2000 showing the treatment
required by the Respondent. Inspite thereof, the
respondent refused to consult Dr. Dass or any other
psycharist.
20. The Petitioner says that, the respondent returned to
Mumbai on flight in the evening of 25 th April 2000,
which was not normal as she could not get flights to
Mumbai so soon. But she appears to have been arranged
it specially. The respondent went to the petitioner’s
residence in his absence and finding the house closed,
she went to the petitioner’s office and tried to contact
him from the gate of the factory. The petitioner was not
at his office at that time, as he was in a meeting with a
customer elsewhere. The respondent seeking the
petitioner’s car and the driver, sat in the car and refused
to leave. The respondent could not contact the
petitioner, she telephoned the petitioner’s bosses and
made false allegations against the petitioner. Inspite of
the request of the security officer of the company to
leave, the respondent refused to do so, and kept on10 of 22
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11 fca-148.08harassing the petitioner’s driver to telephone the
petitioner at the residence. At the instance of the
respondent, the driver telephoned the petitioner 3-4
times from the respondent’s mobile telephone and left
messages on the answering machine that he should
come to the factory. Ultimately, the security staff of the
petitioner’s employers dropped the respondent near the
petitioner’s residence in the company’s car. The
petitioner returned home at about 11.30 p.m. and found
several messages from his driver as well as respondent
on his answering machine. However, next morning the
respondent went back to Delhi.
21. On 27th April 2000, the Respondent again came to
Mumbai on a flight and stayed at Centaur Hotel but
kept on telephoning and threatening the Petitioner. Even
when the petitioner is not at home, the messages left by
her on the answering machine show that she even
shouts and screams to the answering machine. The
petitioner says that the respondent may commit suicide
or harm herself and put the blame on him. In any event,
it is not safe for the life, limb and sanity of the petitioner
to continue to live with the Respondent.”
(emphasis added)
15 The respondent – wife filed written statement in which she
denied the allegations made by the husband. Her contention is that she
was suffering from thyroid gland disorder. Her case is that though she
conceived in the year 1992, the appellant prevailed upon her to
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12 fca-148.08undergo an abortion. She stated in paragraph 26 of the written
statement which reads thus :-
“26. The Respondent further submits that she is suffering
from Thyroid gland disorder but once when she is
conceived in the year 1992 he prevailed upon her to
abort the said pregnancy which created tension in her
mind and she used to suppressed her emotional feeling
which resulted into Harmonal imbalance. Infact doctor
told Petitioner to keep the atmosphere of home happy
which will help her to conceive in future.”
16 Apart from denying the allegations made in the Petition,
the Respondent – wife contended that she hails from a family of
freedom fighters which is a very cultured family. She stated that she
maintained a very cordial and good relationship with the entire family
of the appellant even till the date of filing written statement and in fact
she stayed with the appellant’s sister after the present Petition for
divorce was filed.
17 The learned counsel appearing for the appellant has taken
us through the pleadings and notes of evidence. He submitted that
consistent conduct of the respondent as demonstrated by the evidence
shows that her conduct caused enormous annoyance and mental cruelty
to the appellant. He submitted that cruelty has to be judged after taking
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into consideration the entire facts and circumstances of the case. He
relied upon the observations made by the Apex Court in the case of
Ravi Kumar Vs. Julmidevi1. He invited our attention to the written
statement of the respondent and in particular paragraph 26. He
submitted that what is stated therein itself supports the ground of
mental disorder agitated by the appellant.
18 He invited our attention to the incident of 10 th April, 2000
of the respondent brandishing a knife and threatening to stab herself.
He submitted that merely because watchman of the building was not
examined, the incident of 10th April, 2000 cannot be disbelieved. He
submitted that the fact that the appellant allowed the respondent to
stay with him continuously till 24th April, 2000 cannot be held against
him. He submitted that merely because a police complaint was not filed
by him, the case of the appellant as regards the conduct of the appellant
on 10th April, 2000 cannot be disbelieved. Referring to the greeting
cards which are on record, he submitted that in fact the act of sending
greeting cards will show that the appellant always greeted the
respondent notwithstanding her conduct. The act of sending greeting
cards or the act of allowing the respondent to stay with him cannot be
held as a condonation of cruelty by the appellant.
1 (2010) 4 SCC 476.
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14 fca-148.0819 The learned counsel appearing for the appellant invited our
attention to the impugned judgment. He submitted that the learned
Judge of the Family Court has not at all discussed the evidence adduced
by the parties and the impugned judgment hardly contains any finding
based on analysis and appreciation of oral and documentary evidence.
He submitted that the Family Court under the Family Courts Act, 1994
is not bound by strict rules of evidence and therefore, when the
transcript of the conversation produced by the appellant along with the
cassette was on record, the learned Judge could not have discarded the
same.
20 He relied upon various decisions of the Apex Court in
support of his submission that the marriage between the parties has
irretrievably broken down and therefore, no purpose would be served
by continuing the marriage as the same would cause mental agony to
both the parties. He relied upon the decision of the Apex Court in the
case of V. Bhagat Vs. D. Dhagat2.
21 In support of ground of cruelty, he relied upon the
decisions of the Apex Court in the case of A. Jayachandra Vs. Aneel
Kaur3, Samar Ghosh Vs. Jaya Ghosh4, Manisha Tyagi Vs. Deepak Kumar 5,
2 (1994) 1 SCC 337
3 (2005) 2 SCC 22
4 (2007) 4 SCC 511
5 (2010) 4 SCC 33914 of 22
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15 fca-148.08Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal 6. His submission is
that both grounds agitated by the appellant have been established and
even otherwise, the appellant is entitled to a decree of dissolution of
marriage.
22 The learned counsel appearing for the respondent
submitted that on the basis of oral and documentary evidence on
record, the learned Judge of the Family Court has recorded a finding
regarding the condonation of alleged acts of cruelty by the appellant by
his conduct. He urged that both grounds pleaded by the appellant are
by way of an afterthought. He urged that there is nothing wrong with
the ultimate conclusion drawn by the learned Judge of the Family Court
when he held that no ground for grant of divorce is made out. He
submitted that all the decisions of the Apex Court by which marriages
were dissolved on the basis of irretrievable break down have been
rendered under Article 142 of the Constitution of India. He, therefore,
submitted that no interference is called for.
23 We have carefully considered the submissions. At the
outset, there are submissions made by the learned counsel appearing
for the appellant on the manner in which the findings have been
recorded by the learned Judge of the Family Court. We are dealing with
6 (2012) 7 SCC 28815 of 22
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16 fca-148.08a statutory appeal which is available both on facts and law. Therefore,
we are recording our own findings after considering the pleadings and
after appreciating oral and documentary evidence on record. The
learned Judge has not framed any issue though there is a specific
pleading in the divorce Petition filed by the appellant - husband that
the wife has been suffering intermittently from mental disorder of such
kind and to such an extent that he cannot be reasonably expected to
live with her. In the evidence of the husband, he has come out with the
case that he had taken the respondent - wife to Dr. "J", Psychiatrist. The
appellant has alleged that on 10th April, 2000 while he was handing
over certain currency notes to the respondent, she started brandishing a
knife and threatened to kill herself. The case of the respondent is that as
he apprehended that she may actually stab herself, he went down stairs
and brought a watchman for help. His case is that the respondent
looked at the watchman blankly for sometime and thereafter gave the
knife to the watchman. In the cross-examination, the husband stated
that after the said incident also he had taken his wife to Dr."J".
Surprisingly, the husband has not examined Dr. "J". There is a certificate
dated 19th April, 2000 purportedly issued by Dr. "J" which is not
admitted in evidence. Nevertheless, we have perused the said certificate
which records that Dr. "J" had seen the respondent - wife on 14 th April,
2000 who was accompanied by her husband. Dr. "J" stated that she
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17 fca-148.08complained of decreased sleep, crying spells and angry outbursts, as
well as sadness of mood. She has merely recorded that she required
psychiatric assessment and observation. Dr. "J" was perhaps the best
witness to depose in support of the plea of the appellant- husband that
the respondent - wife was intermittently suffering from mental
disorder. However, the appellant - husband has made no efforts to
examine the said witness. Hence, the said ground for divorce under
clause (e) of sub-Section (1) of Section 27 of the Act has not been
proved.
24 Perusal of the averments made in the Petition and
examination-in-chief of the appellant - husband shows that according
to his case, after the solemnization of marriage on 6 th July, 1994, he
continued to stay in Mumbai and the respondent - wife continued to
stay at Delhi. For few days in a month, she used to come down to
Mumbai and stay with the appellant. The appellant - husband has
alleged that virtually from the next day of the marriage, the behaviour
of the respondent was objectionable. It has come on record that the
appellant and the respondent had consulted Doctors as the respondent
was not conceiving. In paragraphs 34 and 35 of his cross-examination,
the appellant has stated thus :-
"34. True to say that after April 1999 both of us were
consulting doctor's for the problem of respondent
not conceiving. It is true that it was our joint17 of 22
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18 fca-148.08decision to have a child. It is true that Dr. Rama
Vaidya was one of the doctor's to whom we had
consulted for this problems. I have visited Dr. Rupin
Shah. I might have visited Dr. Rupin Shah in the
year July 99, as per the advise of Dr. Meena Shringi.35. I do not remember of having gone to Dr Rupin Shah.
The respondent has visited me last in May 2000. It is
true that in the year 1999 to 2000 we were visiting to
doctor."(emphasis added)
25 Thus, these statements show that at least till May, 2000,
the appellant and the respondent were planning to have a child. This is
one circumstance which will have to be borne in mind while dealing
with the issue of cruelty.
26 As pointed out earlier, according to the case of the
appellant, there was a major incident of 10 th April, 2000 when the
respondent - wife threatened to stab herself by using a knife. The
appellant has admitted in paragraph 39 of his evidence that from 10 th
April, 2000 till 24th April, 2000, the respondent - wife was continuously
staying with him. Moreover, the appellant did not file any police
complaint of the incident of 10 th April, 2000. The appellant through his
Advocate filed a police complaint on 24th April, 2000 (Exhibit - 39).
The said police complaint refers to the incident of 10 th April, 2000. The
act of filing the complaint may not be sufficient to come to the
conclusion that incident of 10 th April, 2000 has been proved. The
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19 fca-148.08appellant has not chosen to examine the watchman who was allegedly
called by him. Evidence of the watchman could have been an important
piece of evidence. However, the appellant did not examine the
watchman, in fact in paragraph 47 of the cross-examination, the
appellant accepted that he was not examining the watchman to prove
the incident of 10th April, 2000. Hence, an adverse inference ought to
be drawn against the appellant for not examining the watchman.
27 The appellant has relied upon an incident of 25 th April,
2000 when, the respondent visited the factory where the appellant was
working. She did not leave though the Security Officer told her to leave.
Moreover, it is alleged that the respondent telephoned appellant's
superior officers and made allegations against the appellant. However,
the appellant has not examined Security Officer of his company and his
superior officers to prove the incident. Moreover, the appellant did not
examine his children. The appellant has relied upon recorded
conversation with the respondent. But, the appellant has not proved
that the voice of female in the recording was that of the respondent. In
this case there is a word against word as both the parties have not
examined any other witness.
28 There are large number of greeting cards which are placed
on record which were sent by the appellant to the respondent in the
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20 fca-148.08year 1999. On 8th October, 1999, the appellant had sent two greeting
cards to the respondent wishing her on her birthday. As stated earlier,
the present Petition was filed by the appellant on 2 nd May, 2000. There
is a greeting card of 8 th October, 2000 at Exhibit - 78 sent by the
appellant to the respondent. The greeting card at Exhibit - 78 has been
produced by the wife along with list of documents at Exhibit - 17.
There is an endorsement that the said greeting card has been admitted
by the appellant and therefore, the same has been marked as Exhibit.
29 The aforesaid discussion shows that even assuming that
there were acts of cruelty on the part of the respondent, the said acts of
cruelty were consistently condoned by the appellant as can be seen
from his conduct reflected from evidence. He has accepted that in the
years 1999 and 2000, they were visiting Doctors for consulting them as
the respondent was not conceiving. In fact, the respondent was
admittedly consulting Dr. Rupin Shah as disclosed from paragraph 35 of
the cross-examination of the appellant. Moreover, on 8 th October, 1999
the appellant has sent two greeting cards to the respondent which
showed that everything was normal. What is pertinent to note is that
even on 8th October, 2000 during the pendency of the Petition, the
appellant forwarded a greeting card to the respondent. The greeting
cards issued from the year 1996 onwards are on record which show
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21 fca-148.08normal relationship between the appellant and the respondent.
Moreover, the respondent continued to stay with the appellant till 24 th
April, 2000. Therefore, apart from the fact that the appellant has not
adduced evidence of crucial witnesses, the aforesaid conduct of the
appellant creates a serious doubt about the correctness of the
allegations of cruelty. In any event, the said conduct amounts to
condonation by the appellant of the alleged acts of cruelty on the part
of the respondent.
30 It is true that the marriage between the parties seems to
have irretrievably broken down. However, in view clause (a) of sub-
Section (1) of Section 34 of the said Act, unless one of the grounds for
dissolution of marriage set out in Section 27 is established, the Court is
powerless to pass a decree of divorce. All the decisions of the Apex
Court relied upon by the appellant wherein marriage was dissolved on
the basis of irretrievable breakdown have been rendered by exercising
the power under Article 142 of the Constitution of India. Therefore, we
are unable to pass a decree of divorce on the said ground.
31 We are, therefore, of the considered view that both grounds
of divorce pleaded by the appellant have not been established. Though
the impugned judgment may not be satisfactory, the ultimate conclusion
drawn by the learned Judge of the Family Court is correct.
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22 fca-148.0832 Hence, we pass the following order :-
ORDER
(i) The Appeal is dismissed with no order as to costs.
(SMT. ANUJA PRABHUDESSAI, J ) (A.S. OKA, J )22 of 22
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