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Judgments of Supreme Court of India and High Courts

Mr. Deepak Gokulchand Aggarwal vs Mrs. Meghana Deepak Aggarwal on 27 April, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.20 OF 2016

Mr. Deepak Gokulchand Aggarwal ..Appellant
Vs.
Mrs Meghna Deepak Aggarwal ..Respondent

Mrs. Aarti Bhide a/w Charulata Khanna, for the Appellant.
Mr. Sushil Upadhyay I/b A. M. Saraogi, for the Respondent.

CORAM :- K. K. TATED
B. P. COLABAWALLA,JJ.

RESERVED ON :- MARCH 27, 2018.

PRONOUNCED ON : – APRIL 27 , 2018.

JUDGMENT :- [ PER B. P. COLABAWALLA, J ]

1 By this Appeal, the Appellant (Original Petitioner –

husband before the Family Court) has challenged the judgment

and decree dated 24th August, 2015 passed by the Family Court,

Mumbai at Bandra. By this judgment, the Petition of the Appellant

for divorce on the ground of cruelty under section 13(1)(ia) of the

Hindu Marriage Act, 1955 was dismissed and the Appellant was

directed to pay maintenance for the child @ Rs. 15,000/- per

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month from the date of filing of the Written Statement by the

Respondent – wife before the Family Court. The relief of injunction

claimed by the Appellant – husband was also rejected by the Trial

Court. It is being aggrieved by this judgment and decree of the

Family Court that the present Appeal has been filed.

2 The brief facts giving rise to the present Appeal are as

under:-

The Appellant herein was the Original Petitioner-

husband before the Family Court. The Respondent herein was the

Original Respondent-wife before the Family Court. The marriage

between the Appellant and the Respondent was solemnized on 5 th

December, 2006 at the Cricket Club of India Lawns, Churchgate,

Mumbai. It is not in dispute that the marriage between the

Petitioner and the Respondent is registered. Prior to marriage,

the Appellant was a bachelor and the Respondent was the

spinster. Out of the said marriage, the Appellant and the

Respondent have a son named Kairav born on 25 th December,

2007. It is an admitted fact that the said son resides with the

Respondent.

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3 It is the case of the Appellant that after marriage, the

Appellant and the Respondent cohabited and resided with the

Appellant’s parents at their residence situated at 64, Ameeta

building, Gen. Jagannath Bhonsle Marg, Mumbai- 400 021.

Thereafter, on 1st September, 2007, the Appellant took up a flat on

leave and licence basis situated at 193/25, Omkar Co-operative

Housing Society, sector 16A, Nerul, Navi Mumbai 400 706 and

started to reside in the said premises.

4 It is the case of the Appellant that initially he had filed

Petition bearing No. A-2342 of 2007 for divorce against

Respondent on the ground that the same was null and void.

However, after filing of the said Petition, several events transpired

and the Respondent has filed various false cases against the

Appellant, his parents and brother ruining and maligning their

name in the society. It is the case of the Appellant that the

Respondent went to the extent of wrongfully filing cases of

molestation against the Appellant’s brother and thereby ruining

his chances of pursuing an honorable profession and a decent

living. It is in these circumstances that the present Petition came

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to be filed against the Respondent seeking divorce under Section

13(1)(ia) of the Hindu Marriage Act, 1955 on the ground of

cruelty. We must mention that Petition bearing No. A-2342 of

2007 has been withdrawn.

5 It is the case of the Appellant that he first met the

Respondent on 1st May, 2006 in a meeting arranged by one Raman

Agarwal. At that particular moment of time, the Appellant’s

mother was suffering from Cancer and was under going treatment

for the same. At that time, when the Appellant and the

Respondent met in the presence of Mr. Agarwal, it was impressed

upon the Appellant that the Respondent was a well educated,

caring and loving person, kind hearted and had a very good sense

of humour. It was further represented to the Appellant that the

Respondent belonged to a very cultured and highly respected

family and the Respondent’s father was a businessman having a

texturing plant at Silvassa. It was further represented that the

Respondent was very good natured, calm and cultured and that

she could completely take care of the household duties as a

housewife.

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6 It is thereafter stated that the Appellant informed the

Respondent that his earnings per month were not more than Rs.

20,000/- per month and also that his mother is a cancer patient

and needed attention. It is the case of the Appellant that the

Respondent and her parents assured the Appellant that the

Respondent would adjust to the salary of the Appellant as well as

live in harmony with the Appellant’s parents.

7 In these circumstances, on 10th May, 2006, an

engagement ceremony was performed finalizing the marriage

proposal between the Appellant and the Respondent. The

ceremony was attended by close relatives of both parties. It is the

case of the Appellant that he and his father amply made it clear

that the Appellant’s mother, being gravely sick, the marriage

ceremony would be performed only after her chemotherapy

treatment was finished. However, disregarding the Appellant’s

pleas and the poor health of the Appellant’s mother, Mr. Raman

Agarwal as well as the Respondent’s father time and again started

pressurizing the Appellant’s parents and also the Appellant’s

grand father for fixing an early date for the marriage.

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8 It is also the case of the Appellant that prior to

marriage, the Appellant expressed his desire to the Respondent

that he would like to visit the Respondent's home and meet her

family, to which the Respondent flatly refused saying that as per

their custom the groom does not visit the bride's house before

marriage. Hence, the Appellant was not allowed to meet the

Respondent in her own house prior to the marriage. It is the case

of the Appellant that all this while, from the month of May 2006

till October 2006, the Respondent's father kept harassing the

Appellant's father for an early marriage. It was therefore finally

agreed that the marriage between the Appellant and the

Respondent was to be solemnized on 5 th December, 2006 at the

Cricket Club of India in the morning and that is how the marriage

was solemnized.

9 It is the case of the Appellant that before the reception

of the marriage, the Respondent threw temper tantrums causing

inordinate delay in reaching the venue. Be that as it may, after

marriage, the Appellant and the Respondent went for their

honeymoon to Singapore. There the Respondent would disappear

on her own without prior intimation to the Appellant as a result of

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which the Appellant would suffer severe trauma and harassment

and get worried for the Respondent's safety in an unfamiliar place.

The Appellant has spent most of his time looking for the

Respondent and worrying about her whereabouts. The Appellant

was petrified of the Respondent's irrational and irresponsible

behaviour. It is thereafter averred that after marriage the

Appellant realized that the Respondent always spoke about her

friends and relatives in a demeaning manner and ridiculed them.

When the Appellant asked the Respondent as to why she has

developed such a nature of ridiculing her family and friends, the

Respondent surprised the Appellant with her answer that they

were not her friends but were bees on her money. According to

the Appellant, the Respondent used derogatory terms for

everyone, including her own family members. Initially, the

Appellant believed the Respondent's stories. However, with

passing of time the Appellant realized that all that the Respondent

said were either lies or statements twisted to suit her own

convenience.

10 In the Petition before the Family Court great details

have been set out about the cruelty that has been meted out to the

Appellant by the Respondent. We, in this Appeal are not going into

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great detail about each and every incident save and except the

major ones that have been canvassed before us by the learned

counsel appearing on behalf of the Appellant.

11 Considering the submissions made by both counsel and

perusing the papers and proceedings, following points arise for our

consideration:-

I Whether the Appellants prove that the In the
Respondent had treated him with cruelty affirmative.
as averred in the Petition?

II Whether the Appellant has made out a case In the
for dissolution of their marriage which affirmative.
was solemnized on 5th December, 2006 by
decree of divorce under Section 13 (1) (ia)
of the Hindu Marriage Act, 1955?

III Whether the Appellant has made out a case Partly, Yes
for setting aside the impugned judgment
and decree dated 24th August, 2015 passed
by Family Court No.3, Mumbai in Petition
No. A-134 of 2009?

12 The first incident that was brought to our notice is an

incident that took place on 9th August, 2007 when the Respondent

strongly hit the Appellant's mother in her stomach with her elbow

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knowing fully well that the Appellant's mother was suffering from

breast cancer and that during an operation the Appellant's

mother's abdominal muscles were removed and transplanted

around the chest along with the fat and fascia and there were no

nerves on the left side of the abdomen and therefore she did not

feel any pain immediately. However, a week later the pain

gradually increased.

13 The second incident is the incident that took place on

25th August, 2007 wherein the Respondent once again assaulted

the Appellant's mother and as a result of which she developed

complications and was hospitalized.

14 The third incident is an incident that occurred on 10 th

August, 2007 when the Respondent slapped the Appellant as an

argument ensued between them. For this incident, the Appellant

in fact filed N. C. No. 1133 of 2007 on 26th August, 2007.

15 The fourth incident is an incident that took place on

18th November, 2007 wherein the Respondent filed a police

complaint with the Goregaon Police Station against the Appellant

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and his family members with respect to dowry and physical

assault on her.

16 Thereafter, on 19th November, 2007, the Respondent

filed another complaint against the Appellant and his parents at

Cuffe Parade Police Station before attacking the Appellant's

parents' house at Ameeta building (the fifth incident). In this

complaint it was alleged that the Respondent was prevented from

getting into house that was admittedly owned by the parents of

the Appellant. After this complaint was filed, on the very same

day, i.e. on 19th November, 2007 the Respondent along with some

other persons attacked the Appellant's father and mother at

Ameeta building and damaged the Appellant's father's premises.

Accordingly, a complaint was filed by the Appellant's father

against the Respondent and her family and friends with DCP,

Colaba.

17 Thereafter, it is alleged that on 28th November, 2007,

the Respondent filed Petition B-113 of 2007 in the Family Court

demanding the Appellant's father's property. This Petition was

dismissed by the Family Court. It is thereafter stated that on 5 th

April, 2008 and 5th May, 2008, the Appellant's father was

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assaulted by the Respondent's father and his associates for which

the Appellant's father lodged a complaint and filed a criminal case

No.64/SW/08 in the Metropolitan Magistrate Court at Esplanade.

On 21st April, 2008 the Respondent's family and others filed

criminal Revision Petition No.765 of 2008 before the Sessions

Court, Mumbai to quash the said case which was rejected on 20 th

September, 2008. This order was challenged by filing a Writ

Petition in this Court wherein this Court gave partial relief and

directed that the case in the Magistrate's Court be tried in a time

bound manner. We must mention here that this criminal

complaint was ultimately withdrawn by the Appellant's father on

the basis of an agreement that was arrived at between the parties

vide a Memorandum of Understanding dated 25 th July, 2013. It

appears that though the Appellant's father acted on the basis of

the said MOU, the Respondent and her family members have failed

to keep up to their end of the bargain under the said MOU.

18 Be that as it may, another incident that occurred was

on 15th July, 2008 when an NC came to be filed by the Respondent

in MRA Police Station for which the Appellant and his father were

detained for six hours and finally freed on proving to the police the

false nature of the said NC. This NC is numbered as NC No.932

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dated 15th July, 2008. We must mention here that there is no

dispute that this incident has taken place. However, it was argued

before us that the Respondent is unaware whether the Appellant

and his father were detained for six hours.

19 Thereafter, on 18th July, 2008 a criminal complaint of

molestation was filed against the Appellant's younger brother -

Dr.Deepesh and others at Nirmal Nagar Police Station bearing FIR

No. 171 of 2008. According to the Appellant, at that relevant

time, the Appellant and his entire family was in the Sessions Court

for hearing of an Anticipatory Bail Application. In this very

proceeding, the Respondent also filed a criminal appeal in the High

Court for getting further investigation done on the production of

some CCTV footage from the security of the High Court and her

said Appeal was allowed by this Court and the police were directed

to do further investigation. Thereafter, further investigations

were done and the police filed their report dated 22 nd February,

2014 wherein it has been opined that no substantial proof is

received to the effect that the CCTV footage being claimed by the

Respondent was procured by them from the CCTV recording room

of the High Court and the person visible in the footage is the same

person which is accused in the case filed by the Respondent

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herein. We will refer to this report in greater detail later in this

judgment. Be that as it may, this complaint filed against the

brother of the Appellant was finally disposed of by order dated 16th

July, 2016 when the Appellant's brother had filed an application

for discharge under Section 239 of the Code of Criminal

Procedure, 1973 (Crpc). By this order, the Metropolitan

Magistrate's Court, after hearing both the parties, allowed the

application and discharged the Appellant's brother vide Section

239 of the CrPC for offences punishable under Sections 341, 323,

504, 354 r/w 34 of the Indian Penal Code 1860 (for short "IPC").

20 What is important to note is that in this order, the

court has recorded that apart from the complaint being lodged

after some delay and for which there was no explanation, the

Complainant (namely the Respondent herein) was not able to

provide the description of any of the aforesaid three unknown

persons (who allegedly acted on the behest of the Appellant's

brother - Dr. Deepesh) either in her FIR or in her further

statement. The court further noted that the Complainant had not

produced her clothing, which were allegedly torn off by the so

called three unknown persons to substantiate her allegations.

Further, the Complainant had not disclosed the number of the

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rickshaw nor had she stated that one of the assailants was

accompanied by the Appellant's brother in motor car no. 9800.

Further, the police report sets out the statement of the

complainant that three unknown persons allegedly assaulted the

Complainant and she sustained injuries. However, no medical

certificate was also filed to prove the injuries on the person of the

Complainant. It is in these circumstances that the Metropolitan

Magistrate's Court observed that the Appellant's brother is the

sole person against whom the police has submitted the charge

sheet for commission of the alleged offences. It was an admitted

fact that the assault had not taken place by the Appellant's

brother, but on his instructions, by three unknown persons.

Considering that those three unknown persons were never

identified nor arrested nor arrayed by her in the FIR, the

Metropolitan Magistrate's Court observed that the provisions of

Section 34 of IPC were inapplicable against the Appellant's brother

(the accused). The Appellant's brother was not liable to be

prosecuted for sharing a common intention with the so called

three unknown persons especially when the Police had never

arrested any other person or submitted a police report against any

of the so called unknown persons. The Court further opined that

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the Investigating Officer had not collected any evidence to show

that there was any direct or indirect involvement of the accused

(Appellant's brother) to commit the offences punishable under

Sections 341, 323, 504, 354 read with 34 of the IPC. It is in these

circumstances that the Court observed that there is no evidence

on record to frame the charge against the Appellant's brother

(accused) and hence an order was passed allowing the application

of the Appellant's brother and he was discharged of the offences

punishable under Sections 341, 323, 504, 354 r/w 34 of the IPC.

21 Considering all these incidents and many more, on 13th

January, 2009, the Appellant filed Petition No. A-134 of 2009 in

the Family Court seeking a divorce on the ground of cruelty under

Section 13 (1) (ia) of the Hindu Marriage Act, 1955. In this

Petition, on 19th October, 2010, the Respondent moved an

application for maintenance. This application was allowed by the

Family Court vide its order dated 17th June, 2013 granting

maintenance of Rs.10,000/- p. m. for the child and Rs. 30,000/- p.

m. for the Respondent.

22 After filing of this Petition, another complaint was filed

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on 20th December, 2011 by the Respondent against the Appellant's

brother - Deepesh in MRA Marg Police Station wherein it was

alleged that the Appellant's brother had threatened that he would

kidnap the child of the Respondent.

23 It is the case of the Appellant that on 24 th January,

2014 the Family Court ordered arrest warrant against the

Appellant in RD No. 213 of 2011 despite the Appellant having

made the full payment by 10th May, 2013. Despite full payment

being made, the Respondent did not withdraw RD No. 213 of 2011

and requested for arrest behind the back of the Appellant. As far

as this incident is concerned, the Appellant was released on his

personal surety with a warning. The Appellant was subjected to

confinement for the whole day and humiliated, at the hands of the

Respondent, is the allegation.

24 On 25th November, 2014, the Respondent again moved

an application seeking arrest of the Appellant in RD NO. 583 of

2013, despite the order dated 15 th November, 2014 passed by one

of us (K. K. Tated, J.) having granted relief by staying the said

Family Court proceedings till 12th December, 2014. Despite the

stay order of this Court, the Appellant was initially arrested and

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thereafter released in view of the fact that this court had already

stayed the Family Court proceedings as mentioned earlier.

25 Looking to all these incidents, and as narrated above,

the learned counsel appearing on behalf of the Appellant,

submitted that there was no real dispute that these incidents

actually took place. There have been several criminal complaints

filed by the Appellant and his family members against the

Respondent and her family members and vice versa. She

submitted that looking to all these incidents and certainly when

looked at as a whole, a clear case of cruelty was made out by the

Appellant. She submitted that some of these incidents have not

even been discussed by the Trial Court in the impugned order.

They have been completely ignored. Furthermore, according to

the learned counsel, the Trial Court had gone completely wrong in

taking each incident in isolation rather than looking at all the

incidents as a whole and then coming to the conclusion whether

there was a case of cruelty made out or otherwise. She also took

us through the evidence led by the parties in respect of these

incidents and submitted that this was a fit case where a decree of

divorce ought to have been granted under Section 13 (1) (ia) of

the Hindu Marriage Act, 1955 and the impugned order ought to be

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set aside, at least to the extent of not granting a divorce in favour

of the Appellant.

26 On the other hand, the learned counsel appearing on

behalf of the Respondent, submitted that the Trial Court had

correctly appreciated the evidence led by the parties and has

thereafter come to the conclusion that no case for divorce on the

ground of cruelty has been made out by the Appellant. The Trial

Court has examined each individual incident and thereafter come

to the conclusion that it has. The learned counsel painstakingly

took us through the impugned order and the reasoning given

therein. He therefore submitted that there was absolutely no

justification for interference with the impugned order which was

well reasoned and passed on sound legal principles. Accordingly,

he submitted that there was no merit in this Appeal and the same

ought to be dismissed.

27 We have heard the learned counsel for the parties at

length and have perused the papers and proceedings in the

present Appeal.

28 At the outset, we must mention here that a detailed

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Written Statement was filed by the Respondent to the Petition

filed by the Appellant which can be found from pages 190 to 208 of

the paper book. We have carefully gone through this Written

Statement wherein the Respondent herself alleges several acts of

cruelty that have been allegedly meted out to her and her family

members by the Appellant and his family members. In fact, on

this basis, an issue also was framed whether the Respondent

proved that the Appellant had treated her with cruelty as averred

in her Written Statement. This issue however was not at all

decided by the Trial Court on the ground that the same was not

necessary to decide the same since the Respondent had not made

any claim based on the alleged cruelty and that by itself would not

discharge the Appellant from proving cruelty pleaded by him.

29 Having said this, we shall now deal with the incidents

of cruelty that were pleaded by the Appellant and examine the

same on the basis of the pleadings and the evidence led by the

parties in that regard.

CRIMINAL COMPLAINT FILED BY THE RESPONDENT
AGAINST THE APPELLANT'S BROTHER FOR
MOLESTION:-

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30 The first incident and which according to us is one of

the most important incidents of cruelty alleged by the Appellant is

the criminal complaint filed on 18th July, 2008 by the Respondent

against the Appellant's younger brother - Dr. Deepesh on the

ground that the Respondent was molested by three unknown

persons on the instructions/behest of the said Dr. Deepesh. In this

regard, an FIR came to be filed bearing FIR No. 171 of 2008. This

FIR can be found at pages 84-88 of the Respondent's compilation

Exhibit-76. On the basis of the FIR Criminal Case

no.2277/PS/2008 was filed in the Metropolitan Magistrate's Court

at Bandra.

31 As far as this incident is concerned, the averments of

the Appellant can be found at paragraph "oo" of the Appeal (page

179 of the paper book). The Appellant has stated that on 18 th

July, 2008 the Respondent filed a case against the Appellant's

brother falsely alleging that with the help of three goons the

Appellant's brother tore her clothing and threatened her to

divorce the Appellant. It is thereafter stated that this complaint of

the Respondent is totally false as the Appellant's brother (Dr.

Deepesh) was with the Appellant at the Sessions Court for filing an

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application for Anticipatory bail. In reply to the Respondent's FIR,

a detail statement was filed at the Nirmal Nagar Police Station,

explaining the facts. It is thereafter stated that despite this, the

Appellant's brother was arrested and then released on bail and

told to report the Police Station every Sunday like a criminal.

32 As far as this incident is concerned, the Appellant has

led evidence in chief wherein what has been stated by the

Appellant in his Divorce Petition has been reiterated in his

evidence. Even in the cross examination of the Appellant he has

categorically denied the incident of 18 th July, 2008 and has stated

that the Appellant and his brother had applied for Anticipatory

Bail and it was not true to say that the Appellant and his brother,

with the help of local goons has tried to pressurize the Respondent

into divorcing the Appellant by molesting her. Apart from the

Appellant being examined himself, the Appellant also examined

his mother. The Appellant's mother in her evidence has stated

that on 18th July, 2008, the Respondent filed a false molestation

case against her son Deepesh (Appellant's brother). She has

categorically stated that the time mentioned in the complaint

made by the Respondent, her son Dr. Deepesh was with her at the

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Sessions Court. What is interesting to note is that there is no cross

examination of the Appellant's mother on this at all. The next

witness that has been examined by the Appellant, is Appellant's

father (PW-6). He, at paragraph 19 of his affidavit, has stated that

on 18th July, 2008, the Respondent filed an FIR against his

younger son Deepesh falsely alleging that Deepesh, with the help

of three goons, tore her clothes and threatened her to give divorce

to the Appellant. The Appellant has further stated that the said

complaint is clearly false as his son Deepesh was with him at the

Sessions Court for filing an application for Anticipatory Bail. He

has further stated that this FIR has been investigated and re-

investigated and the allegations of the Respondent in this regard

have been proved false in the police report. We must state that

even the Appellant's father has not been cross-examined with

reference to this incident.

33 The only pleading that we find of the Respondent with

reference to this incident is in paragraph 42 of her Written

Statement (page 203 of the paper book). All that the Respondent

has stated in her pleading is that on 18 th July, 2008 she had come

to meet her advocate in the Family Court for discussion with her

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brother and father and whilst returning she was alone. It is

thereafter stated that the Appellant took advantage of the same

and the Respondent was humiliated/molested on the road.

Accordingly, the Respondent's complaint came to be filed which

are self explanatory.

34 What is interesting to note from these pleadings is that

in the Written Statement the Respondent alleges that the

Appellant took advantage of the situation that Respondent was

alone and humiliated/molested her on the road. However, in the

FIR filed about this alleged incident, the Appellant does not figure

in the same anywhere. In the FIR, the allegation is that the

Appellant's brother - Dr. Deepesh, conspiring with three unknown

persons, on 18th July, 2008 had pushed the Complainant and

pulled her dupatta and kicked on her private parts. The detailed

police report with reference to this incident has been filed before

us at page 209 of the Appellant's compilation. The police report

with reference to this incident clearly states that in February,

2008 the Complainant (Respondent herein) had received

summons to the effect that a suit was filed against her in the

Family Court, Bandra and as the date of hearing in the said notice

was 19th July, 2008, in order to file reply to it, the Complainant

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(Respondent) had gone to meet her Advocate Sandhya Sharma at

the Family Court at Bandra, Mumbai. After meeting her advocate

at about 13.45 hours, the Respondent started to go to her

residence at Goregaon by Rickshaw. On her way to the residence,

near Ascension at fly over bridge, the Rickshaw suddenly broke

down and therefore the Rickshaw driver pushed the Rickshaw

and brought it on the service road and informed the Respondent

that he would arrange for another Rickshaw. Thereafter, the

Respondent got down at the service road and was waiting for

another Rickshaw. At that time, three persons were standing

there. There were rings in the fingers of their hands. Moreover,

amongst them, there was a strongly built person wearing a black

kurta and pajama. Another person was having a beard and was

wearing a pant and a shirt. The third person's teeth were shabby

and his face was dreadful. The strongly built person pushed the

Respondent and pulled her dupatta and kicked on her private

parts. Moreover, the person who was looking dreadful caught

hold of her hair and the person who was sporting a beard was

speaking on the phone to somebody, when he said "Doctor madam

work had been done". At that time, the Respondent asked him as

to who had sent him, upon which she was informed that "Doctor

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has sent us" and stated that just now they have only torn of her

kurta but hereafter they will tear her nickers, if she does not sign

the papers pertaining to the divorce with the Appellant. Saying

this, they left from there. After this she got a rickshaw on the

service road and while she was proceeding ahead on the service

road, out of her three assailants, the Respondent saw that the

person sporting a beard sitting with the accused Deepesh in a

black colour car bearing No.9800 on the highway by the side of the

service road. At that time the said person and Deepesh were

laughing seeing the complainant (Respondent). Thereafter the

Respondent went to her house at Goregaon by rickshaw and

narrated the aforesaid facts to her mother. Thereafter this

information was also given to the Respondent's father over the

phone. This information was thereafter also given by the

Respondent's father to his friend Varun Chowdhary who

thereafter came to the Respondent's house and accompanied her

to Goregaon Police station and narrated all the aforesaid facts to

the Senior Police Inspector there.

35 What we find very interesting is that it is the

Respondent's own case that the rickshaw that she had gotten into

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to go to her residence from BKC to Goregaon broke down on the

highway. It is for this reason that the rickshaw was pushed on the

service road. It is the Respondent's own statement that when the

Rickshaw was pushed on the service road on the side and was

parked there, three persons (who allegedly molested her) were

standing there. It is not her case that those three people were

either following her or arrived there once she was at the spot

where the rickshaw had broken down. It is also not her case or

allegation that the rickshaw driver was in anyway involved in this

incident. This being the case, it is ludicrous to suggest that her 3

assailants, and who were supposedly acting at the behest of the

Appellant's brother, happened to be at the exact same spot where

the rickshaw broke down. The police report which has been

prepared after further investigation (as ordered by this Court in

Writ Petition No.3075 of 2012 dated 26th September, 2012), was

also filed in the Magistrate's Court. After this report came to be

filed, the Appellant's brother Dr. Deepesh filed an application

under Section 239 of the CrPC for discharge in the said Criminal

Case No. 2277/PS/2009. This application for discharge came to be

allowed by the Metropolitan Magistrate's Court, Bandra, Mumbai

vide its order dated 16th July, 2016. This order clearly records

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that though this incident occurred on 18 th July, 2008, the

Complainant had lodged the FIR on 19 th July, 2008, and for this

delay, there was no explanation. It has been further recorded that

the Respondent had not been able to provide description of any of

the aforesaid three unknown persons either in her FIR or in her

further statement. Further, the Respondent had not produced her

clothes which were allegedly torn off by the so called three

unknown persons at the time of the alleged incident to

substantiate her allegations and neither had the Respondent

disclosed the number of the rickshaw in which she was traveling.

Despite the fact that it is her case that she was molested and had

suffered injuries, the Investigating Officer had not filed any

medical certificate on record to prove injuries on the person of the

Respondent. The chargesheet that came to be filed was against

one person only namely Dr. Deepesh for the alleged offences. In

this regard, the Metropolitan Court opined that the provisions of

Section 34 of the IPC were inapplicable against Dr. Deepesh. Dr.

Deepesh was not liable to be prosecuted for the alleged offence for

sharing a common intention with the so called three unknown

persons especially when the police had never arrested any person

or submitted a police report against any of the so called unknown

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persons. The Investigating Officer had not collected any evidence

to show that there was either any direct or indirect involvement of

Dr. Deepesh to commit offences punishable under Sections 341,

323, 504, 354 r/w 34 of the IPC. It is in these circumstances and

considering the very object of Section 239 of the CrPC, the

Metropolitan Magistrate allowed the application of discharge.

36 On going through this order, we find that the

application of the Appellant was allowed after perusing the police

report filed before it and the Magistrate finding absolutely no

evidence whatsoever against Dr. Deepesh (namely the Appellant's

brother). We, therefore, find that as far as this incident is

concerned, the Appellant's brother was wrongfully accused of

molesting the Respondent. More importantly, what is also

important to note is that in the evidence led by the Appellant's

mother as well as the Appellant's father, it is their case that Dr.

Deepesh at the time of the alleged incident was in the Sessions

Court with them applying for Anticipatory Bail apprehending that

the Respondent may file a complaint against them under Section

498A of the IPC. This evidence has not been controverted

whatsoever by the Respondent. This is another factor, which at

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least to our mind, clearly goes to show that there was no real

substance in the FIR filed by the Respondent against the

Appellant's brother on the alleged ground of molestation. We

clearly find that this complaint filed against the Appellant's

brother would certainly amount to cruelty as it has tarnished the

image of the Appellant and his entire family in society and would

certainly amount to cruelty as contemplated under Section 13 (1)

(ia) of the Hindu Marriage Act, 1955. According to us, on this

ground alone the Appellant would be entitled to a decree of

divorce.

37 It is crystal clear from the report submitted by the

Nirmal Nagar Police Station in a molestation case filed by the

Respondent Wife that she can make false statements to gain

favourable orders even before the Courts. In that case she

specifically made a statement that she obtained CCTV footage from

the High Court to show that the Appellant's brother tried to

pressurize her even in the High Court premises. The official

English translated portion of the police report which reads thus

shows that the Respondent intentionally made false statement in a

proceeding before the Magistrate Court hearing Case No. 2277 of

2011.

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"On the date 17.12.2011, he and his father had gone to the High
Court alongwith the complainant for hearing into the said petition. The
complainant had seen the person who had beaten her up in the aforesaid
case on the date 19.7.2008, outside the High Court building with the
arrested accused Dipesh. He threatened the complainant saying, "Still
you have not mended up your behaviour, still you are coming to the Court,
we will cut you and your child into pieces," and both of them left away
from them. When the complainant was scared. She made a complaint to
M.R.A. Police Station .

On the date 11.1.2012 the witness and his father and friend Linesh
Nagda had gone alongwith the complainant to the High Court for further
hearing into the aforesaid writ petition. On that day, the complainant saw
the accused, to whom she had seen outside the High Court on the date
17.12.2011, of the aforesaid case, in the compound of the High Court.
Complainant gave the said information to the witness and father
thereupon, he gave the said information to the complainant's advocate
Ashokji Saraogi. The advocate asked him to check the C.C.T.V. footage of
the Court. Thereupon, on that day itself, all of them had gone to Security
officer's office in the High Court and gave the said information to the
police who were present there and requested them (police personnel)to
show the C.C.T.V. footage. "Thereupon they showed us C.C.T.V. footage,
in the said footage, the complainant, on seeing a bearded person who was
entering the Court premises, stated that he was the same person who had
beaten her up on the date 19.7.2008. The beard on his face had grown up
more. He was found to be of the age group of 40 years, having slim built
and of the height about five feet 8 inches and wearing white shirt and
black pant on his person. From this, when the police made the search for
the said accused person in the precincts of the High Court, but, he was not
found anywhere in the compound and around the High Court. On the
date 11.1.2012, police sub-inspector Revankar had met us in the Bombay
High Court. We gave the aforesaid information even to him thereupon
police sub-inspector Revankar told us, 'we will make an application to the
High Court and get C.C.T.V. footage' . Thereafter, when all of us sought
a copy of the said footage from the police, the police said that they could
not give footage to us and if we wanted the said footage then we should
make an application to Higher Officers and should get the same.
"However, we make earnest request to him and told the gravity of the
incident thereupon, he allowed us to record the said footage in the mobile,
I downloaded the said footage in my mobile. We showed the said photos
(images) to the High Court on the next date. If the bearded person from
Muslim Community, to whom I saw in the C.C.T.V. footage of the
Bombay High Court on the date 11.1.2012, if he comes before me then I
can identify him." The complainant's brother Piyush Goyanka recorded
his statement accordingly and the same has been annexed herewith.

From the information given by the complainant and witness, when
the enquiry was made with witness Linesh Laherchand Nagda, who has
family relation with them, he gave the information as follows :- on the
date 19.7.2008, when the complainant, after meeting her advocate of the
Family Court, was returning to her house at the spot, near Bandra

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Highway, her rickshaw got breakdown, thereupon rickshaw driver had
taken his rickshaw aside on the service road. As soon as he had taken his
rickshaw aside and parked, at that moment itself, some unknown persons
caught hold of her and thrashed her and told her "Do as what Doctor
says otherwise we will make your condition more worse" and one person
out of the unknown persons beating her up, told someone from his mobile
by making a phone call that - "Doctor madam your work has been done"
thereafter, those unknown persons fled away through nearby lane there.
On account of this eventuality, the complainant got scared and remained
unmoved there. At that time, she saw around her, when across the service
road on the Highway her brother-in-law by name Dipesh Agarwal seated
in the black colour car. She did not tell me as to which direction he had
gone. Moreover, I do not know as to exactly which spot the aforesaid
incident had occurred on the service road. Thereupon, I told them that
the aforesaid incident was wrongful and that they should question the
relatives of Meghna's in-laws and told them to sit together with the
members of their community and to resolve the said matter in a proper
manner (amicably).

Thereafter, about three days later, Piyush Navalkishore Goyanka
informed that he had gone alongwith the complainant and had lodged the
offence with the Nirmal Nagar Police Station.

In connection with the aforesaid offence, the complainant has filed
the Writ Petition in the High Court. On the date 11.01.2012,
Navalkishore Goyanka, Piyush Goyanka and also the said witness
alongwith the complainant had gone to the High Court, Bombay for
hearing of the said petition.

On that day, when all of them were standing in front of Court Room
No.3 in the High Court, at about 12.30 in the afternoon, the complainant
told them that she had seen one of the persons who were thrashing her on
the service road, at Bandra on the date 19/7/2008, in the precincts
(compound) of the Court. Thereupon, the said information was conveyed
to Advocate Ashokji Saraogi of the case. Thereupon, he told us to to
check the footage of C.C.T.V. in the Court. Therefore, on that day itself
all of us had gone to the office of the Security Officer and given the said
information to the police personnel who was present there and requested
him to show the footage of C.C.T.V. Thereupon, when he showed us the
C.C.T.V. footage, Meghana on seeing one bearded person, who was being
seen entering the Court precincts in the said footage, stated that this was
the same person who had beaten up her up on the date 19/7/2008.
Thereupon, all of them (us) had sought a copy of the footage to the said
police, he had told us that he could not give the said footage to from and
that if we wanted the said footage, then we should make an application to
the higher (superior) officer and to get the same. However, when we
made earnest request and told him the gravity of the incident, he allowed
us to record the said footage on mobile, thereupon, Piyush Goyanka had
down loaded the said footage in the mobile. Statement of the said witness
has also been recorded and included in the papers.

When enquiry was made with the arrested accused Dipesh
Gokulchand Agarwal, gave the information that since the time of
marriage there has been quarrel between the complainant and his brother

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Deepak Gokulchand Agarwal. Therefore, the family members of the
complainant 's parental home were harassing Deepak, parents and him in
various manner and thereby they were trying to grab their movable and
immovable properties. Therefore, the complainant's relatives have lodged
many false complaints against them with different police stations. As such
the aforesaid activities of the complainant and her parents were increased
and therefore, Deepak Agarwal had filed a petition in the Family Court,
B.K.C., Bandra in the year 2007 for granting him the order to live
separately from the complainant. Therefore, complainant's relatives filed
a suit in the Court to get the property of the parents of the accused and
harassed his parents, brother Deepak and him in various ways.
Moreover, as the accused had got the information that the complainant
was thinking of filing case against his brother, mother and father and him,
under Section 498(A), the accused and his parents and brother together
had gone to the office of the Registrar of Sessions Court, Mumbai with
their advocate I.B. Singh, on the date 18/07/2008 at about 12.00 noon, to
make an application for getting anticipatory bail to prevent from being
arrested, if she (complainant) filed such case. (complainant) and we were
there upto about 4.30 to 05.00 p.m. in the evening. For hearing of the
said matter we had again remained present in the Session Court on the
date 19/07/2008, and in the hearing, we were granted anticipatory bail.

When the accused was in the premises of Sessions Court,Mumbai on
the date 18/07/2008, from 12.00 to 5.00 p.m. During that period, some
unknown persons had beaten up the complainant and the said unknown
person fled away, he (accused) was nearby spot, where the complainant
was beaten up, such complaint has been lodged by the complainant and
her relatives against him on the date at Crime Registration Number
171/2008, under Section 341, 323, 504, 354, 34 of I.P.C. and he was
arrested. When he had given the aforesaid information to the police.
Moreover, on that day, as he was in the Sessions Court, neither he had
seen or waylaid the complainant on that full day. Moreover, she was not
molested or beaten up. In order to malign his character and to see that his
doctor (medical) practice is stopped and to cause loss to him, the
complainant at the instance of her relatives lodged the aforesaid false
complaint against him and he had told this fact to PSI Revankar at that
time. However, as he told him that the proofs were found against him,
therefore, the charge-sheet was filed. As the Charge-sheet was filed
against him without making proper investigation and as he was innocent
in the said offence, he had filed writ petition Number 1861/11 in the High
Court to quash and set aside the complaint. On the date of hearing in to
the said petition, the complainant and her father and other associates
were coming to the Court, though they had nothing to do with the same.
On the date 17/12/11, the accused had gone to the High Court alongwith
his advocate. On that day, as the Hon'ble Judge had not come in the
Court, without making my hearing in to the said petition, hearing of the
petition was adjourned to 11/1/12 at 11.00 a.m. On the date 11/01/2012,
the said accused, alongwith his advocates and his assistant were about to
go out of the Court precincts, Investigating Officer of his case Police Sub
Inspector Revankar had me him there, hence the accused greeted him
'Good Morning' and went ahead with his advocate. A that time,

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complainant's father Navankishor Goyanka, Piyush Goyanka, Ajay
Dalmia and some other persons were standing there. As soon as the
Accused and his advocate went ahead, the Complainant's brother Piyush
Goyanka on seeing him said, " Let's give him bashing" and proceeded
towards him (accused). When Ajay Dalmia told him (Piyush) that - "All
of us are in Court, if we do this then all of us will come in a fix" and
dragged him back. "My advocate's Assistant and I have heard the said
words and seen the said act." When they (Advocate Assistant) took him
(accused) alongwith them out side the Court and from there they took the
accused to Bellard Pier Court. At that time he had ignored the aforesaid
incident. However, as he had realised that complainant's associate and
relatives would again hatch some conspiracy against him and would
implicate him in some case. Hence, on each date of hearing into the Writ
Petition, the accused Dipesh Agarwal used to move in and out of the
Court only alongwith Advoate Sunil D'souza and his Assistant. On the
date 19/1/2012, hearing was made in his aforesaid Writ Petition and
decision was given to the effect that the points putforth by him have been
kept open and that the hearing in to his case would be made in the
concerned Court and there was no need to make enquiry (investigation)
again and by giving such decision, the Hon'ble Court disposed of his Writ
Petition. Therefore, at about 12.05 he alongwith his advocate Sunil
D'souza left the High Court premises and went to Bellard Pier. Where he
left (dropped) the advocate and at about 12.30 he went a taxi to his
father's house near Mantralaya and relaxed.

Moreover, he never met the complainant on any date of hearing
when he remained in the Hon'ble High Court for the hearing into the Writ
Petition filed by him nor, he threatened her anywhere or he had shown
any person by any pointing at him and threatened her in any manner
whatsoever. Moreover, he had not asked any persons to beat up the
complainant on the date 18/7/2008. However, the complainant and her
relatives and associates, with an intention to cause financial loss and
physical and mental harassment to him and his family members and to
make them to suffer permanently in their rest of the life, threatened him
and his family members and by hatching some or other conspiracy as
aforesaid and approaching some or other police station lodge false
complainant against them, such information has been given by the
accused and the statement given by the accused has been recorded and
the same has been included in the papers.

In order to make enquiry as to who has provided the C.C.T.V.
footage submitted (produced) by the complainant, in the Hon'ble Court in
the said matter, letter was sent to the Additional Police Commissioner,
Protection and Security, Senior Police Inspector, Azad Maidan Police
Station, In charge Police Inspector, High Court, Security Department and
informed to make available the C.C.T.V. footage produced by the
complainant in the Hon'ble Court and letter bearing o.w. No. 7958/13,
dated 11/ 10/13 of Nirmal Nagar Police Station was sent to send the
Police Official making available the photo in C.C.T.V. footage to the
complainant and her relatives, to the Police Station to make enquiry and
thereby information has been called for. In pursuance of the said letters
Assistant Police Commissioner, Protection and Security, Mumbai and

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Incharge Police Inspector, High Court, Mumbai, by their letter informed
that 'if anyone demands footage or a photo from C.C.T.V. in the High
Court, then unless there is an order in writing from the Additional Police
Commissioner, Protection and Security, Mumbai the same is not given to
anybody.' Moreover, upon making enquiry with the official who looks
after C.C.T.V. recording in the High Court, he has clearly stated that on
the date, stated by the complainant, photo or footage from the recording
was not given to any one. Moreover, upon perusing the station diary of
the said date, no entry of the C.C.T.V. footage is found to have been made
therein. Moreover, it has been informed that no useful information is
received about obtaining the said footage and photo by the complainant in
her mobile illegally by whose assistance. Storage and D.V.D.'s capacity
storing the recording (footage) in the High Court is only of 11 days after
11 days old recording gets deleted and new recording was stored, thus
informed.

Upon making enquiry with Police Constable No. 080955/Shankar
Baban Bhosale attached to C.C.T.V. Recording Cell in the High Court
during the period from August 2010 to February 2013, in the High Court,
at Mumbai he informed that -

He, during the period from August 2010 to February 2013 was in
High Court Security Department, at High Court in C.C.T.V. Recording
Room, for monitoring C.C.T.V. Footage and informing the superiors
immediately, if there was a likelihood of occuring any untoward incident.
And the aforesaid information was stored by Computer. He does not have
any knowledge as to how the said information (data) is stored or checked.
In the High , C.C.T.V. Control Room is near Gate Number 4 of the
Bombay High Court where except the official on duty and In-charge
Police Inspector, no body else is allowed to enter. As the recording made
there recording and other information (data) are of confidential nature,
without the written permission of the office of the Additional
Commissioner of Police to the Engineer of Shargi Company looking after
the maintenance of the C.C.T.V., to comply with the demand, the Engineer
of the said company makes the compliance thereof. In the computer there,
recording of only 11 days in stored and after 11 days the same gets
deleted automatically.

On the date 11/1/12, he as usual, was discharging his duty in the
aforesaid C.C.T.V. Control Room from 8.00 hrs to 20.00 hrs. On that day
no person or police official or officer had come in the said room or
nobody was allowed the entry to the said room for checking (seeing)
C.C.T.V. footage or photo, in the said room. Nor anybody was shown the
screen of the computer making C.C.T.V. recording. Moreover, the
recording thereof was not transferred to mobile. Moreover, he has not
seen or is not even knowing anyone by name Meghna Agarwal, or Piyush
Goyanka or Naval Kishor Goyanka or Linesh Nagda. Moreover, he has
not even seen or heard any policeman making search in respect of the
offence committed by any person against any woman, on the date 11/1/12.

Working of the Bombay High Court starts everyday at 11.00 a.m.
and movement of about 3000 of different kinds of people right from
government employees, Police Officers, and Staff, advocates witnesses
petitioners filing the petition and respondents starts in respect of different

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cases there. These people consists of different castes, religions and many
persons from Muslim Community come there, it is impossible to keep their
identity.

From the information given by the complainant herein and the
witnesses giving information from her side, a letter bearing o.w. No.
7855/13 dated 04/10/2013 of Nirmal Nagar Police Station, was sent and
information was sought as to whether, the complainant had lodged
complainant against the accused herein on the date 11/01/2012 and on the
date 17/12/2011 with Mata Ramabai Police Station, thereupon, the
complainant has lodged a complaint on the date 20/12/2011 to the effect
that, the accused Deepak Gokulchand Agarwal and an unknown person
had intimidated and hurled abuses at the complainant at Hutatma Chowk,
near parking, Fort, Mumbai on the date 17/12/11, to the effect that if she
spoke any thing in the Court about eh case then they would see her and
her son and the same has been registered as Non Cognizable Complaint
No. 924/11 under Section 504, 506 of I.P.C. and the complainant was
intructed to seek relief from the Court, thus informed,.

As the advocate Ashokji Saraogi on behalf of the complainant herein
was required to call for enquiry in the said matter, the complainant and
the witnesses giving the deposition on her side was informed to give the
full name and address of the said advocate and were told to inform to the
said Advocate to remain present personally. However, they did not make
any co-operation to that effect. Hence, the said advocate has not been
brought before me to make enquiry with him. Moreover, when it was said
that it was necessary to make enquiry with the complainant's mother-
father, the complainant stated that as both of them were old in age,
enquiry should not be made with them. Therefore, the enquiry could not
be made with them.

Accused herein stated that he had seen R.V. Revankar the
Investigating Officer of the case, in the High Court on the date 1/11/2012
and he had greatened him 'Good Morning', thereupon, in order to given
the information in the said matter, information was given through the
letter of the concerned police station to remain present for remaining
present in the police station to give information, however, he did not
remain present for the said enquiry work.

C.D.R. of the mobile of the accused for the date 1/11/12 was called
for. However, even the same could not be made available.

When the accused herein was called in the police station for making
enquiry, thereupon, at the time of enquiry alongwith him his father
Gokulchand Tejpal Agarwal and advocate Negi had come to the police
station. In the enquiry the accused gave the information that he always
used to go to the High Court, with his advocate and his Assistant.
Thereupon, he was told to bring his advocate Sunil D'souza, and his
Assistant for enquiry, Moreover, he was asked to give their mobile number
address. However, the accused's father asked and expressed anger as to
why the advocate was being called for enquiry and the accused and his
father did not make co-operation. Hence, the enquiry could not be made
with him.

In the entire enquiry made in the present matter, the complainant
was found bearded person in the precincts of the High Court near the

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entrance gate on the date 01/11/12 at about 16.00 to 16.30 hrs.
Moreover, second time he was found to be going out of the precincts of the
Court and she had given the information thereof to her father on phone on
that day, thus stated the complainant. However, the witness Linesh Nagda
stated that on the date 01/11/12 at about 12.30 p.m., when the
complainant's Father Navalkishore Goyanka, Piyush Goyanka and the
complainant were standing in front of the Court Room number 03 of the
High Court, the Complainant had seen him in the precincts of the Court.
Moreover, on the date 01/11/2012, the complainants father her brother
Piyush Goyanka and friend Linesh Nagada had gone with the
complainant for the hearing in to the aforesaid petition in the High Court.
At that time, she had told her brother and father that the complainant had
seen in the precincts of the High Court the accused of the said case to
whom she had seen outside the High Court on the date 17/12/11, thus her
(complainant's) brother Piyush Goyanka stated. Discrepancy is found in
the time of seeing the bearded person by the complainant as stated by the
complainant and her brother and Linesh Nagda in their statement and in
the information given to her father by the complainant.

Moreover the complainant alone gave the information to the
C.C.T.V. police on the date 1/11/12 and checked the C.C.T.V. footage and
thereafter, some days later again alongwith her brother and father and
Linesh Nagda she had gone to the High Court and requested the police
there for showing the aforesaid recording of the C.C. camera and the
recording was seen by her and her father, brother and Linesh Nagda
when the said footage was demanded the police had stated that the said
recording could not be given legally, thus is the statement of the
complainant. However, it has been stated that the said recording was
seen by the complainant and her father and her brother Piyush Goyanka
and family relation Linesh Nagda on the date 1/10/12. Discrepancy is
found in the information of date of seeing the recording by the
complainant and the recording seen by the witnesses.

The complainant had found the bearded person and the arrested
accused were going out of the the High Court on the date 1/11/12, when
the arrested accused stated, "Do you remember this man ? This is the
same man of the date 18/07/08, keep this in mind" Moreover, some days
later, she, upon going to the High Court alongwith father, brother and
Linesh Nagda, the police had told them to go to M.R.A. Police Station or
the concerned Police Station, they had gone to M.R.A. Police Station and
narrated the aforesaid facts to the police, thus is the say of the
complainant. However, upon perusing the complaint lodged by the
complainant with M.R.A. Police Station, the complainant has made the
complaint that on the date 20/12/2011, the accused Deepak Gokulchand
Agarwal and unknown person had threatened her on the date 17/12/11
near Hutatma Chowk parking, Fort, Mumbai saying that if she uttered
anything then they would see her on her child and hurled abuses and the
said complaint has been lodged as Non Cognizable complaint No. 924/11
under Section 504, 506 of I.P.C. There is a discrepancy about the
narration of the threat and also in the information of about in information
given by the complainant in her statement about the threating given by the
Accused Deepak Agarwal to her and about the threatening given to her by

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the opponent as per the complaint given by her in M.R.A. Marg Police
Station.

Moreover, the police has stated to the the complainant and her
father, brother and Linesh Nagda that C.C.T.V. footage of the High Court
could not be given to them without the written order of the Senior Police
Officer.

Moreover, there is a similarity in the same of the police department, the
C.C.T.V. footage there cannot be given as per the order of the superiors.

A discrepancy is seen in the information given by the complainant
and the witnesses about the fact as to when and from where the C.C.T.V.
footage herein was taken. Moreover, there is no mentioning from which
the police personnel they had obtained the said. Moreover, the statement
given by the police constable no. 08-0955/Shankar Bhosale looking after
the said work as stated that except the official working in the C.C.T.V.
recording room of the High Court and in-charge police inspector nobody
else had entered and that he had not given the said recording to anyone.
Moreover, in the written information received from the said department,
the same thing has been mentioned. Moreover, according to him on the
working day, about 3000 people visit everyday to the High Court. Among
them, there are many persons from Muslim community and bearded
persons. From this, it is not understood in the enquiry as to exactly from
whom the C.C.T.V. footage, produced in the Hon'ble Court by the
complainant party, was acquired. From the information from the
complainant and of the complainant party and the information given by
the witnesses on her behalf moreover from the non co-operation made by
the complainant party in respect of making her advocate of her case and
her father to remain present, whose presence was utmost necessary in the
matter of enquiry, no substantial proof is received to the effect that the
C.C.T.V. footage, being claimed by the complainant party, was procured
by them from the C.C.T.V. Recording room of the High Court and person
visible in the footage is the same person, who is the accused in the case
filed by her (complainant ).

Therefore, this report is respectfully submitted for further necessary
action or order.

Yours faithfully,
Sd/- (illegible)
(P. V. Pitale)
Assistant Police Inspector
Nirmal Nagar, Police Station.

The Senior Police Inspector, Nirmal Nagar Police Station, Mumbai.

Pursuant to the Order of the Hon'ble High Court, the
enquiry into the said matter has been carried out. In the present matter,
seen the statements of the Complainant, her brother and Linesh
Leharchand Nagda recorded during the course of enquiry made by the
Assistant Police Inspector Pitale with the Complainant and the witnesses
who remained present on her behalf during the enquiry. It is found that
there is a discrepancy between the time at which the Complainant had
seen the bearded person, in the High Court precincts as well as in the

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location of the place as well as in the information given to her father.
Further, there is a discrepancy even in the date given by the Complainant
on which she had seen the C. C. T. V. Footage in High Court and in the
date given by the aforesaid witnesses on which they had seen the C. C. T.
V. Footage. Moreover, there is also a discrepancy between the
information given by the Complainant in her statement about the threat
given to her by the Accused Deepak Agarwal, and about the facts in
respect of the threat given to her by the opponent mentioned in the
Complainant given by her in M. R. A. Marg Police Station and in the
information about the said dates.

In the information given in the statement given by the
complainant as well as the witnesses giving evidence on her behalf, there
is a similarity that the C. C. T. V. Footage of the High Court cannot be
given to them without the written permission of the Senior Police Officers.

Moreover, it has not been mentioned as to from which Police
personnel, the Complainant and the witnesses obtained the said C. C. T.
V. Footage. Further, in the statement given by Police Constable B. No.08

- 0955 / Shankar Bhosale working in the C. C. T. V. Recording Room in
the High Court and in the information writing received from the said
Section, it has been mentioned that save and except the official working in
the C. C. T. V. Recording Room and the In-Charge Police
Inspector, no one else is permitted to go in the said Room. Further it is his
say that around 3000

people come in the High Court on a working day which include many
persons belonging to Muslim Community as well as the bearded persons.
Therefore, during the course of enquiry, it has not been revealed as to
exactly from where the C. C. T. V. Footage produced by the Complainant
before the Hon'ble Court, was obtained by them. Thus, no substantial
proof is found to the effect that the C. C. T. V. Footage produced by the
Complainant was obtained by them from the C. C. T. V. Control Room in
High Court and that the person seen in the Footage is the Accused in the
case filed by her. Therefore, I am agreeable to the Report by submitted by
the A P I Pitale after completion of the investigation.

Hence, this Report is respectfully submitted for information
and orders.

Sd/- (illegible)
Senior Police Inspector,
Nirmal Nagar Police Station,
Mumbai
Outward No. _ / 2014
Date - _ / 02/ 2014."

38 What is interesting to note is that in the impugned

order the Trial Court has taken note of the fact that the incident as

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on 18th July 2008 had taken place and that a criminal case with

reference to the same was pending in the criminal court. The Trial

Court has however recorded that since the case has not been

decided, it is very difficult to say that the allegations made by the

Respondent in that complaint are false. However, as can be seen

from what is stated by us herein above, the Appellant's brother

has been discharged from the said case as there was absolutely no

evidence against him of any nature whatsoever. This being the

case, we clearly find that the filing of the complaint by the

Respondent against the Appellant's brother on the ground that she

was molested by the three unknown persons at the behest of the

Appellant's brother (and from which case subsequently the

Appellant's brother has been discharged as there was no evidence

whatsoever against him), would certainly amount to cruelty under

Section 13 (1) (ia) of the Hindu Marriage Act, 1955 entitling the

Petitioner/ Appellant to a decree of divorce.

COMPLAINT FILED BY THE RESPONDENT AGAINST THE
APPELLANT'S BROTHER ON THE ALLEGED GROUND OF
THREATENING TO KIDNAP HER CHILD:-

39 The next incident of cruelty that is alleged by the

Appellant is when the Respondent on 20th December, 2011 filed a

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complaint against the Appellant's brother Deepesh in the MRA

Marg Police Station about the alleged threat given to her on 17 th

December, 2011 about kidnapping her child if she uttered

anything. The said complaint was lodged as a non-cognizable

Complaint No. 924 of 2011 under Sections 504, 506 of the IPC.

This complaint also can be found in the police investigation report

at page 215 of the Petitioner's compilation. This police report

clearly states that there is a discrepancy about the narration of

the threat and also in the information given by the

Complainant/Respondent in her statement about the threat given

by Deepesh to her. It appears that thereafter no further action

was taken with reference to this complaint. This is yet another

incident where a complaint was filed against the Appellant's

brother Deepesh on the ground that he threatened to kidnap the

Respondent's child. Even the police report clearly states that

there are contradictory statements made with reference to this

complaint by the Respondent before the police authorities. This is

yet another incident, which to our mind, would certainly amount

to cruelty as contemplated under Section 13 (1) (ia) of the Hindu

Marriage Act, 1955 especially when one takes into consideration

that no further action was taken on this complaint by the

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investigating authorities as there appeared no substance in the

allegations.

40 We are mindful of the fact that this alleged incident

occurred after the filing of the Petition. But that itself cannot be a

ground for holding that the same would not amount to cruelty. It

is now well settled by the Supreme Court in the case of

Vishwanath Agrawal Vs. Sarla Vishawnath Agrawal

reported in (2012) 7 SCC 288 that even incidents occurring

during the pendency of the Divorce Petition can certainly be taken

into consideration to come to the conclusion whether a party is

entitled to a divorce on the ground of cruelty or otherwise. The

relevant portion of this decision reads thus:-

"46. It is interesting to note that the respondent has deposed that
it was published in the papers that the daughter-in-law was
slapped by the father-in-law and Neeta Gujarathi was recovered
from the house but eventually the police lodged a case against
the husband, the father-in-law and other relatives under Section
498-A of the Penal Code. We really fail to fathom how from this
incident and some cryptic evidence on record, it can be
concluded that the respondent wife had established that the
husband had an extramarital relationship with Neeta Gujarathi.
That apart, in the application for grant of interim maintenance,
she had pleaded that the husband was a womaniser and
drunkard. This pleading was wholly unwarranted and, in fact,
amounts to a deliberate assault on the character. Thus, we have
no scintilla of doubt that the uncalled-for allegations are bound
to create mental agony and anguish in the mind of the husband.

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47. Another aspect needs to be taken note of. The respondent had
made allegation about the demand of dowry. RCC No. 133 of
1995 was instituted under Section 498-A of the Penal Code
against the husband, father-in-law and other relatives. They have
been acquitted in that case. The said decision of acquittal has not
been assailed before the higher forum. Hence, the allegation on
this count was incorrect and untruthful and it can unhesitatingly
be stated that such an act creates mental trauma in the mind of
the husband as no one would like to face a criminal proceeding
of this nature on baseless and untruthful allegations.

48. Presently to the subsequent events. The courts below have
opined that the publication of notice in the daily Lokmat and the
occurrence that took place on 11-10-1995 could not be
considered as the said events occurred after filing of the petition
for divorce. Thereafter, the courts below have proceeded to deal
with the effect of the said events on the assumption that they can
be taken into consideration. As far as the first incident is
concerned, a view has been expressed that the notice was
published by the wife to safeguard the interests of the children,
and the second one was a reaction on the part of the wife relating
to the relationship of the husband with Neeta Gujarathi.

49. We have already referred to the second incident and
expressed the view that the said incident does not establish that
there was an extramarital relationship between Neeta and the
appellant. We have referred to the said incident as we are of the
considered opinion that the subsequent events can be taken into
consideration. In this context, we may profitably refer to the
observations made by a three-Judge Bench in A.
Jayachandra [(2005) 2 SCC 22] : (SCC p. 32, para 16)
"16. The matter can be looked at from another angle. If
acts subsequent to the filing of the divorce petition can be
looked into to infer condonation of the aberrations, acts
subsequent to the filing of the petition can be taken note of
to show a pattern in the behaviour and conduct."

50. We may also usefully refer to the observations made
in Suman Kapur [(2009) 1 SCC 422 : (2009) 1 SCC (Civ) 204 :

AIR 2009 SC 589] wherein the wife had made a maladroit effort
to take advantage of a typographical error in the written
statement and issued a notice to the husband alleging that he had

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another wife in USA. Thus, this Court has expressed the opinion
that the subsequent events can be considered."

(emphasis supplied)

41 Looking to this Authoritative pronouncement of the

Supreme Court, events that have occurred during the pendency of

the Divorce Petition can and should be looked into for considering

whether a case of cruelty is made out as contemplated under

section 13(1)(ia) of the Hindu Marriage Act, 1955.

APPELLANT TAKEN INTO CUSTODY IN R.D.213 OF 2011
PURSUANT TO AN ORDER PASSED BY THE FAMILY
COURT:-

42 The next incident of cruelty which has been alleged by

the Appellant is that he was taken into custody on 24 th January,

2014 pursuant to an order passed by the Family Court in R.D. No.

213 of 2011. This arrest order can be found at pages 61 to 62 of

the order compilation tendered before us. What is interesting to

note is that, the Appellant herein had filed Writ Petition No.10237

of 2013 in this Court in which an application was moved on the

very same day namely 24th January, 2014. This Court on the said

date recorded the statement made on behalf of the Appellant

herein that he had already paid a sum of Rs.6,50,000/- and that he

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would deposit a sum of Rs.3,00,000/- in the Family Court, Mumbai

on 27th January, 2014 and further undertook to deposit a further

sum of Rs.4,00,000/- on or before 10 th February, 2014 in the

Family Court as a part of arrears of maintenance. This Court

ordered that the aforesaid amounts would be deposited in the

Family Court Mumbai on the aforesaid dates and further granted

liberty to the Respondent to withdraw the said amount. Despite

this order being passed on the same date, the same was not

brought to the notice of the Principal Judge, Family Court by the

Respondent and instead she pressed for having the Appellant

arrested. It is in these circumstances that the Appellant was

arrested on 24th January, 2014. It is only thereafter that the

Appellant was released on his personal surety. The Appellant was

subjected to confinement for the whole day and humiliated at the

hands of the Respondent, despite the High Court passing the order

dated 24th January, 2014 granting time to the Appellant to pay

the arrears of maintenance as stated herein above.

43 This however does not stop here. On 25 th November,

2014 once again the Respondent moved an application seeking

arrest of the Appellant in R.D. No. 583 of 2013. This is despite the

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fact that an order was passed on 15th November, 2014 by this

Court granting a stay of the Family Court proceedings till 12 th

December, 2014. This order of the High Court dated 15 th

November, 2014 was passed in the presence of the advocates for

the Respondent. Despite this, the same was not brought to the

notice of the Family Court and instead an application for arrest of

the Appellant was made on 25th November, 2014. On this

application filed on 25th November, 2014, the Family Court issued

an arrest warrant against the Appellant. It is only at 4.45 p.m.

when the order of the High Court was brought to the notice of the

Family Court by the Appellant's advocate, that the warrant issued

against the Appellant was stayed. Both these incidents clearly go

to show that the Respondent was out to harass the Appellant by

having him arrested time and again without bringing the true and

correct facts before the Family Court and subverting the process

of law and justice. This, to our mind, would certainly amount to

cruelty as contemplated under section 13(1)(ia) of the Hindu

Marriage Act, 1955 entitling the Appellant to a decree of divorce.

FILING OF N.C.932 BY THE RESPONDENT UNDER WHICH
THE APPELLANT AND HIS FATHER WERE DETAINED
FOR SIX HOURS:-

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44 Another incident of cruelty that is alleged by the

Appellant is one of 15th July, 2008 when the Respondent filed N.C.

No.932 in the MRA Police Station for which the Appellant and his

father were detained for six hours and finally released after

proving the false nature of the N.C. The fact that this N.C. was

filed is not in dispute and in fact has been produced by the

Respondent themselves in their compilation. It appears that no

further action has been taken on this N.C. and despite this we find

that there is absolutely no discussion about this incident in the

impugned order. To our mind, this is one more incident which goes

to show that the Respondent was out to harass the Respondent by

filing frivolous complaints and having him detained and/or

arrested.

THE RESPONDENT ASSAULTING THE MOTHER OF THE
APPELLANT ON 9 TH AUGUST 2007 AND 25 TH AUGUST
2007:-

45 One more incident that we would like to narrate is one

that took place on 9th August, 2007 and 25th August, 2007. The

allegation is that on 9th August, 2007, the Respondent hit the

Appellant's mother in her abdomen with her elbow knowing fully

well that her mother in law was suffering from breast cancer and

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the abdomen muscles were removed and transplanted around the

chest along with the fat and fascia and there were no nerve on the

left side of the abdomen. However, as the days passed she felt

abdominal discomfort. On 25th August, 2007, again the

Respondent assaulted the Appellant's mother as a result she

developed complications and was hospitalized. The allegation is

that it was found that the hit was in the pancreas and pancreas

were damaged. The Appellant's complaint with reference to this

incident also came to be filed by the Appellant on 17 th September,

2007. Though this complaint has been filed after quite some

delay, the same has been explained by the Appellant in his

affidavit in lieu of evidence at paragraph 28 thereof. It has been

stated that on 26th August, 2007 an N.C. was registered with the

Cuffe Parade Police Station for abuse done by the Respondent to

the Appellant on 10th August, 2007 and again on 14th August,

2007. This incident was related to the Respondent slapping and

abusing the Appellant. At that time the Inspector was informed

about the physical assault on the Appellant's mother at the hands

of the Respondent. It was informed that a written complaint was

required to be given and therefore the police authorities avoided

to file a complaint. Due to the Appellant's mother's critical

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condition in the hospital, a written complaint was filed on 17 th

September, 2007. According to the Appellant, the police officer on

the duty was persistently avoiding to file the complaint with

reference to the abuse on his mother. Even the NC filed by the

Appellant on 26th August, 2007 was registered after a week of the

complaint filed by the Appellant.

46 As far as the incident regarding the assault on the

mother of the Appellant is concerned, the pleadings in this regard

can be found at page 173 of the paper book. Even in his

examination in chief, the aforesaid incident is narrated at

paragraph 27 thereof. The only cross on this issue of the

Appellant can be found at page 242 of the paper book (paragraph

82). In the cross examination the Appellant has stated that his

mother was at home between 9th August, 2007 and 24th August,

2007. He has categorically denied that he has made any false

allegation about the Respondent assaulting his mother. He has

further denied that he and his parents conspired to throw the

Respondent out of their house after taking her jewelry.

47 Apart from the evidence of the Appellant, the mother

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of the Appellant has also led evidence and narrated the incident in

her evidence. At paragraphs 7 and 8 of her examination in chief

(page 251 of the paper book), she has categorically stated that on

9th August, 2007 when she called the Respondent for tea in the

evening, she was hit by the Respondent with her elbow in her

abdomen and chest knowing fully well that she was suffering from

breast cancer and that during the operation, her abdominal

muscles were removed and transplanted around the chest along

with the fat and fascia due to which there was no sensation on the

left side of her abdomen. In these circumstances, she could not

feel any pain at that particular time. However, as the days passed,

she gradually felt increasing abdominal discomfort. It is

thereafter specifically stated that on 25th August, 2007, the

Respondent again assaulted her. On that very night her condition

deteriorated and her husband took her to the hospital where she

was admitted. On evaluation it was found that she had acute

pancreatitis which according to her, was due to the Respondent's

assault. She has also stated that she has been in the hospital for

14 to 15 days fighting for her life but with the grace of God she

survived. The only cross of the mother we find is at paragraphs

22 and 23 at pages 264 to 265 of the paper book. On going

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through the cross, we do not find anything therein that shatters

the testimony of the Appellant's mother. The Appellant's mother

has categorically denied that she has falsely deposed that the

Respondent assaulted her on 9th August, 2007 or 25th August,

2007. In fact, in the cross examination a suggestion was put to

her that the Appellant and her parents were assaulting the

Respondent and to avoid getting arrested by the police, the

Appellant's mother had got admitted to the hospital. We find this

suggestion on the face of it to be wholly ludicrous. Firstly, there is

no pleading by the Respondent that she was ever assaulted by the

Appellant and her parents on 25th August, 2007. Secondly, no

complaint to that effect has ever been filed by the Respondent

against the Appellant or his parents. Thirdly, in the cross

examination, it has been specifically stated by the Appellant's

mother that from 26th August, 2007 till 10th September, 2007, she

was under going chemotherapy treatment for her cancer as she

was suffering from breast cancer. All this clearly goes to show

that the suggestion put forth to the Appellant's mother that she

was admitted to the hospital only to avoid the arrest from the

Police, is wholly unbelievable.

48 On going through the testimony of the Appellant as

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well as of the Appellant's mother, we have no hesitation in holding

that the testimony as given by the Appellant as well as his mother

has not been in any way shattered by the Respondent. At least

looking to the preponderance of probabilities and with the

evidence on record, we have no hesitation in holding that this

incident as narrated by the Appellant and her mother in fact took

place and was not a concocted story, as sought to be alleged by the

Respondent.

49 We must also mention that as far as this incident is

concerned, the same has been dealt with in the impugned order at

paragraph 98 thereof. The only reason for rejecting this

contention of the Appellant and Appellant's mother is that the

Respondent was pregnant of about four months at the time when

the alleged incident took place and she had to take care of herself

and the child in her womb, and therefore, it was not believable

that she would give a blow to her mother in law causing

complications to her body. We find this reasoning to be wholly of

perverse. Merely because the Respondent was pregnant of about

four months, is certainly not a reason to hold that she would not

be able to give a blow to her mother in law. This is the only reason

we find in the impugned order for rejecting the contention of the

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Appellant.

50 There are several other incidents that have been

narrated such as the incident that took place on 19 th November,

2007 where the Respondent filed a complaint against the

Appellant and his parents at Cuffe Parade police station before

attacking Appellant's parents house at Ameeta Building. We are

not going into details of these other incidents, considering the fact

that the incidents discussed by us herein above are enough to

grant a decree of divorce to the Appellant on the ground of cruelty

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

51 Looking to what is stated herein above, and looking at

the facts of the case in their totality, we find that Trial Court had

completely gone wrong in not granting a decree of divorce in

favour of the Appellant. The mistake that the Trial Court has

made is that it has wrongly examined each incident independently

rather than looking at the case in its totality. Further, we find

that some of the major incidents have not even been considered by

the Trial Court in the impugned order. Looking to all these facts,

we have no hesitation in holding that the impugned order suffers

from perversity and the Appellant is entitled to a decree of

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divorce.

52 In these circumstances, the following order is passed:-

(a) The impugned order dated 24th August, 2015 is
set aside insofar as it dismisses the Appellant's
Petition seeking a decree of divorce.

(b) The marriage solemnized between the Appellant
and the Respondent on 5th December, 2006
stands dissolved by decree of divorce under
Section 13 (1) (ia) of the Hindu Marriage Act,
1955.

(c) The Appellant is granted a decree of divorce
under Section 13 (1) (ia) of the Hindu Marriage
Act, 1955.

(d) Considering that the Appellant has succeeded
before us, the direction by the Trial Court for the
Appellant to pay costs of Rs. 15,000/- to the
Respondent is also set aside.

(e) As far Clauses 2, 3 and 4 of the operative part of
the impugned order are concerned, the same are
retained.

(f) It is clarified that the Appellant shall pay

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maintenance at the rate of Rs. 15,000/- p. m. for
the child from the date of filing of the Written
Statement till the child attains majority.

(g) Arrears, if any, with reference to such
maintenance shall also be cleared by the
Appellant as expeditiously as possible and in any
event within a period of four months from today.

(h) Decree of divorce be drawn up accordingly.

(i) The Appeal is, therefore, allowed with costs
quantified at Rs.50,000/- to be paid by the
Respondent to the Appellant within a period of
four weeks from today.

            ( B. P. COLABAWALLA , J. )                  ( K. K. TATED, J. )

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