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Minaben W/O Nitinkumar Mukundrai … vs Nitinkumar Mukundrai Raval on 7 December, 2018

C/FA/3376/2018 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/FIRST APPEAL NO. 3376 of 2018
With
CIVIL APPLICATION NO. 1 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE MOHINDER PAL Sd/-
and
HONOURABLE MR.JUSTICE A.C. RAO Sd/-

1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?

2 To be referred to the Reporter or not ? NO

3 Whether their Lordships wish to see the fair copy of the NO
judgment ?

4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?

MINABEN W/O NITINKUMAR MUKUNDRAI RAVAL D/O BHANUSHANKAR
JOSHI
Versus
NITINKUMAR MUKUNDRAI RAVAL

Appearance:
MR IM PANDYA(546) for the PETITIONER(s) No. 1
MR PARTH D PATEL(9754) for the RESPONDENT(s) No. 1

CORAM:HONOURABLE MR.JUSTICE MOHINDER PAL
and
HONOURABLE MR.JUSTICE A.C. RAO

Date : 07/12/2018

Page 1 of 9
C/FA/3376/2018 JUDGMENT

ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE MOHINDER PAL)

1.00. This appeal has been preferred by the appellant
wife – original respondent against the respondent – husband –
original petitioner challenging the judgement and decree
passed by the learned Judge, Family Court No.2, Ahmedabad in
Family Suit No.482 of 2013, vide which decree of divorce has
been granted.

2.00. The respondent herein – husband filed Family Suit
No.482 of 2013 seeking decree of divorce under section 13(1)
of Hindu Marriage Act on the ground of cruelty and desertion
against the appellant herein – wife.

3.00. The marriage between the parties was solemnized
on 2/12/1987 according to rites and rituals of their community.
After marriage, they were blessed with one son namely Dhruv
and one daughter namely Charvi out of the wedlock. Both of
them were living together, however, as per the respondent
herein – husband, in the year 1990, the appellant herein – wife
started picking up quarrels frequently with the original
petitioner – husband under the instigation of her parents,
brother and sisters and thereby she perpetrated mental and
physical cruelty upon the respondent herein – husband. It was
further allegation that the appellant herein – wife did not allow
the respondent herein to talk with the children and on
instigation by the wife, son also tried to assault on his father.
It is the case on behalf of the husband that a criminal
complaint under
section 498(A) of the Indian Penal Code was
also filed by the wife against the husband, however, at the end
of trial, the husband was acquitted. The learned Family Court

Page 2 of 9
C/FA/3376/2018 JUDGMENT

while taking into account various aspects and by reasoned
order has granted divorce. Feeling aggrieved by the said
decision, wife – original respondent – appellant herein has
preferred the present First Appeal.

4.00. Mr.I.M. Pandya, learned counsel appearing on behalf
of the appellant wife has vehemently submitted that the
findings of the learned Family Court are perverse, as the
appellant – wife has never admitted in her cross-examination
that she did not want to live together with her husband. He has
further argued that it was the husband who has tried to desert
the wife though the wife wanted to survive the marriage. He
has further submitted that the respondent husband has been
sending objectionable messages to the daughter.

4.01. Mr.I.M. Pandya, learned counsel appearing on
behalf of the appellant wife has also relied upon the decision of
the Hon’ble Apex Court in the case of Chetan Dass Versus
Kamla Devi, reported in 2001 (2) GLH 478.

Making above submissions and relying upon above
decision, learned counsel for the appellant wife has requested
to allow the present petition by quashing and setting aside the
judgement and decree of divorce passed by the learned
Family Court.

5.00. On the otherhand, Mr.Parth Patel, learned counsel
appearing on behalf of the respondent herein – husband has
vehemently opposed the present petition. He has submitted
that the impugned judgement and decree passed by the
learned Family Court is just, legal and proper and on

Page 3 of 9
C/FA/3376/2018 JUDGMENT

appreciation of evidence on record and hence the same is not
required to be interfered with.

5.01. Mr.Parth Patel, learned counsel appearing on behalf
of the respondent herein – husband has further submitted that
even the appellant wife had filed a complaint against the
respondent husband making false allegations of cruelty and
the husband faced the trial, however, he was found innocent
and has been acquitted by the Criminal Court. He has further
submitted that once the husband has been acquitted from the
Criminal Court, filing of such false complaint by the wife
against the husband itself amounts to cruelty upon the
husband and hence the husband is entitled to divorce and no
error has been committed by the learned Family Court while
granting decree of divorce.

5.02. In support of his above submissions, Mr.Parth Patel,
learned counsel appearing on behalf of the respondent herein –
husband has relied the decision of the Hon’ble Apex Court in
the case of K. Srinivas Versus K. Sunita, reported in
MANU/SC/1050/2014 : (2014) 16 SCC 34.

Making above submissions and relying upon above
decision, learned counsel for the respondent husband has
requested to dismiss the present First Appeal as well as Civil
Application and vacate the ad-interim relief granted.

6.00. Heard the learned counsel appearing on behalf of
the respective parties at length and perused the judgement
and decree passed by the learned Family Court.

Page 4 of 9

C/FA/3376/2018 JUDGMENT

6.01. The learned Family Court in paragraph Nos. 15, 23
and 24 of its judgement has given reasons for grant of
divorce. Paragraph Nos. 15, 23 and 24 read as under :-

“15. During the course of cross-examination, the

respondent has stated that the petitioner has deserved them

since the year 2013. It is admitted by the respondent that as

there was disputes between them, the house was sold out in

April, 2015 to repay the bank loan. It is admitted by th

respondent that by way of D.D., the petitioner has given her

Rs.9,73,069/- ON 30/04/2015. On being shown M-37/4

(Ex.61), it is admired by the respondent that the petitioner

has given her Rs.2 Lakh in cash. It is admitted by the

respondent that the petitioner has borrowed educational loan

for their son Dhruv. It is admitted by the respondent that the

petitioner was acquitted in criminal complaint filed under

section 498(A) of I.P.C., which was filed by her against him. It

is admitted that she has not filed any petition for restitution

of conjugal rights against the petitioner. It is denied that she

has got assaulted the petitioner through her family members

and son. It is denied that she has tried to keep away the

children from the petitioner. It is denied that she mentally

harassed the petitioner since 1997 and during their marriage

life.

23. The respondent has filed her Examination-in-chief vide

Exh.58. Considering the contents of the affidavit, harassment

is denied but though there is cohabitation of rival parties in

the same house, since more than 10 years, they are not in

relationship as husband and wife and this fact is not denied

by the respondent during her examination-in-chief.

Page 5 of 9

C/FA/3376/2018 JUDGMENT

24. During cross-examination, the respondent has

admitted that at the time of filing of this petition, both of

them are living in the same house, thereafter about Rs.12

Lakh plus some more amount has been received by the

respondent and the respondent is living separately in a flat

which is owned by her sister and the respondent has during

the cross-examination admitted that she does not want to

live together with the petitioner as husband and wife and so

cohabitation is not possible.”

6.02. The learned Family Court has observed in the
judgement that the wife has admitted that she did not want
to live together with the husband. The said finding has been
disputed by the learned counsel for the appellant wife on the
ground that wife has never declined to remain in the company
of her husband and as such the finding of the learned Family
Court that the wife did not want to live together with the
husband, is perverse.

6.03. We have considered the submissions of the learned
counsel for the appellant wife as well as respondent husband.
Though the learned counsel for the appellant wife has disputed
the finding that the wife did not want to live together with the
husband, in para 1 of the cross-examination of the appellant
wife, copy of which has been provided by the learned counsel
for the appellant wife, the appellant wife has admitted that she
is residing separately since March, 2017 and she has not seen
her husband since last four years. Even the appellant wife
herself has admitted that the husband was acquitted in
criminal complaint filed under
section 498A of IPC and she also

Page 6 of 9
C/FA/3376/2018 JUDGMENT

admitted that she has not filed any petition for restitution of
conjugal rights against the husband. The appellant wife has
admitted in her cross-examination that at the time of filing of
the petition though they both were residing in the same house
since more than 10 years, they are not in relationship as
husband and wife and she also admitted that due to
matrimonial dispute and to repay the loan, the house is sold
and husband has given Rs.12 Lakhs by D.D. And Rs.2 Lakhs by
cash to the appellant wife and the wife is residing separately in
a flat which is owned by her sister.

6.04. Further, the appellant wife had instituted complaint
under
section 498A of the Indian Penal Code against the
husband and the respondent husband faced the trial, however,
he is acquitted by the competent Criminal Court. Even this fact
is also mentioned in the judgement of the learned Family Court
and same is also admitted by the appellant wife in her cross-
examination. The judgement of the Hon’ble Apex Court in the
case of K. Srinivas (supra), relied upon by the learned counsel
for the respondent husband, is fully applicable to the facts of
the case on hand. In the case of K.Srinivas (supra), Hon’ble
Apex Court has held that a false complaint institutes
matrimonial cruelty and would entitle the other spouse to
claim divorce on this ground. Para 1 of the decision of the
Hon’ble Apex Court in the case of K. Srinivas (supra) reads as
under :-

“1. In this Appeal, counsel for the Appellant has sought to

draw our attention to all the arguments that had been

addressed before the High Court on behalf of the Appellant-

Husband in support of his claim for dissolution of his

Page 7 of 9
C/FA/3376/2018 JUDGMENT

marriage to the respondent by a decree of divorce under

Section 13(1)(ia) of the Hindu Marriage Act, 1955. We have,

however, restricted him to the ground of alleged cruelty on

account of the filing of a criminal complaint by the

respondent against the Appellant and several members of his

family under sections 498-A and 307 of the Indian Penal Code

(Indian Penal code). We did this for the reason that if this

ground is successfully substantiated by the petitioner, we

need not delve any further i.e. whether a marriage can be

dissolved by the Trial Court or the High Court on the premise

that the marriage has irretrievably broken down. This nature

of cruelty, in the wake of filing of a false criminal case by

either of the spouses, has been agitated frequently before

this Court and has been discussed so comprehensively and

thoroughly that yet another judgement on this well-settled

question of law, would be merely a waste of time. A complete

discourse and analysis on this issue is available

MANU/SC/0180/2013 : 2013(5) SCC 226, in which numerous

decisions have been cited and discussed. It is now beyond

cavil that if a false criminal complaint is preferred by either

spouse, it would invariably and indisputedly constitute

matrimonial cruelty, such as would entitle the other spouse

to claim a divorce.”

6.05 The facts of the decision relied upon by the learned
counsel for the appellant wife are entirely different and in the
said case, the husband was living in adultery and allegations of
adultery were proved and as the facts are entirely different,
the decision relied upon by the learned counsel for the
appellant wife is not applicable in this case.

Page 8 of 9

C/FA/3376/2018 JUDGMENT

7.00. In view of the foregoing reasons, there is no
apparent error or illegality in the impugned judgement and
decree passed by the learned Family Court, vide which the
decree of divorce has been granted. We find no substance in
the present First Appeal and the same deserves to be
dismissed and is accordingly dismissed.

In view of dismissal of the main First Appeal, Civil
Application No.1 of 2018 does not survive and the same is also
dismissed. Ad-interim relief granted earlier stands vacated
forthwith.

Notice is discharged. No costs.

Sd/-

(MOHINDER PAL, J)
Sd/-

(A. C. RAO, J)
RAFIK

Page 9 of 9

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