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Raghunath Vasant Tonpe vs Mangal Raghunath Tonpe on 11 September, 2018

(1) fca21.16

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

FAMILY COURT APPEAL NO.21 OF 2016

Raghunath s/o Vasant Tonpe,
Age. 49 years, Occ. Service,
R/o. Mahalumbra, Tq. Tuljapur,
Dist. Osmanabad. … Appellant
(Ori. Petitioner)

VERSUS

Mangal w/o Raghunath Tonpe,
Age. 40 years, Occ. Business,
R/o. At present, N-13,C-38/01,
HUDCO, Harsool, Harsool Road,
Aurangabad. … Respondent
(Ori. Respondent)

Mr.Amol P. Ghule Patil, Advocate for the petitioner.
Mr.M.K. Deshpande, Advocate for sole respondent.

CORAM : PRASANNA B. VARALE
S.M.GAVHANE,JJ.

RESERVED ON : 08.08.2018
PRONOUNCED ON : 11.09.2018

J U D G M E N T [PER : S.M. GAVHANE, J.] :-

The appellant-husband whose Petition No.A-

427/2013 filed against the respondent-wife for

divorce on the grounds of cruelty and desertion under

Section 13(1)(i-a) and (i-b) of the Hindu Marriage

Act, 1955 was dismissed by the Family Court,

Aurangabad on 31.05.2016, has preferred this appeal

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being aggrieved by the same. The parties are

hereinafter referred to by their status before the

Trial Court. The matter was referred to the Mediator

for settlement and mediation failed.

2. Few facts relevant to decide this appeal in

short, are that, the marriage of the petitioner with

the respondent was solemnized on 01.05.1997. After

marriage the respondent-wife went to the house of the

petitioner for cohabitation and they have a daughter,

namely, Bhagyashri born from the said wedlock.

3. Case of the petitioner is that the

respondent is residing separate from him since 2000

and causing cruelty to him. He had filed petition

No.A-180 of 2001 against the respondent to come to

him for cohabitation alongwith her daughter

Bhagyashri. So also, respondent had filed application

under section 125 of the Criminal Procedure Code

against the petitioner bearing No.E-835 of 2000

claiming maintenance. Above said both the proceedings

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were tried together and petitioner’s petition was

dismissed and maintenance application of the

respondent was allowed by the Court by order dated

31.08.2001. Thereafter, respondent-wife filed

petition No.A-270 of 2004 against the petitioner for

restitution of conjugal rights. Said petition was

dismissed with costs by the Court and while

dismissing the said petition/suit, the Court had

blamed the respondent that she had suppressed the

true facts from the Court.

4. Further it is the case of the petitioner

that after the marriage the respondent had come to

Solapur at native place of the petitioner, but within

six days the respondent had come with the petitioner

at Parsoda, Tq. Vaijapur where the petitioner was

serving in the Maharashtra State Electricity Board.

In the year 1998, the respondent was pregnant from

the petitioner and therefore she went to her parental

house for delivery. During this period the petitioner

used to go to the respondent and used to make all the

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expenses from December 1999 to 25.10.2000. But, as

the respondent was loving daughter of her parents

they used to tell the petitioner to come to stay at

Aurangabad. After the petitioner was transferred to

Deogaon Rangari the respondent has quarreled with the

petitioner on the ground that petitioner should daily

come to Aurangabad from Deogaon Rangari and at that

time father-in-law of the petitioner assaulted him.

As the respondent had gone to her parental house, the

petitioner had given notice to the respondent through

Advocate. But she insisted him to cohabit with her

and as such there was no effect of notice of the

petitioner. On the contrary the respondent filed

application for maintenance under section 125 of the

Criminal Procedure Code. The respondent is in habit

of making false allegations against the petitioner.

She had also filed R.C.C. No.264 of 2001 under

Sections 498-A, 323, 504, 506 read with 34 of the

Indian Penal Code against the petitioner and his

relatives. She again filed complaint under Sections

494, 323 and 109 of the Indian Penal Code bearing

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R.C.C. No.1460 of 2012 against the petitioner. The

Court in petition No.A-180 of 2001 has observed that

the petitioner and the respondent cannot stay

together. The respondent has left the petitioner for

last 10 years without any cause and there is no

chance of their coming together. The respondent is

not allowing the petitioner to meet daughter

Bhagyashri. The petitioner is suffering from Lumber

Spondylir C polyassive and Left Kidney shows mild

hydronephoris with hydropeter obstructing calculars

at lt.vvj and he is in need of companion. Therefore,

he filed petition for dissolution of marriage on the

ground of cruelty and desertion.

5. Respondent-wife filed written statement at

Exh. 10 and she has denied almost all the contentions

which are made against her by the petitioner. Her

case is that the petitioner demanded Rs.3,00,000/-

as dowry from her father and also demanded to set up

poultry farm for his brother. The petitioner used to

say that as her father was not fulfilling demands, he

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did not want child. He used to beat the respondent on

abdomen with an object to cause abortion. She was

required to be hospitalized for the same. She further

contends that after birth of child, the petitioner

did not come to see the child. He said, he wanted to

have a son. The parents of the respondent used to

purchase household articles in the house of

petitioner from time to time. The petitioner ousted

the respondent at night, when her child was small,

under the influence of liquor. One Mr. Deshpande,

dropped the respondent at her parents house. The

petitioner had illicit relationship with his maternal

uncle’s daughter Saroja. He is staying with her for

last 18 years. They have a daughter and a son aged 18

years. The petitioner has left the respondent. He has

never cared for her and her daughter. He threatened

to kill her and her daughter, if she comes to him for

cohabitation. According to the respondent in case of

divorce, she would suffer at the time of settling

marriage of her daughter. Thus, respondent-wife had

prayed to dismiss the petition.

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6. The learned Judge of the Trial Court had

framed following issues at Exh.11.

1. Whether petitioner proves that after
solemnization of marriage the respondent
treated him with cruelty?

2. Whether petitioner proves that after
solemnization of the marriage the respondent
has deserted him for a continuous period of
not less than two years immediately
preceeding the presentation of the petition?

3. Whether the petitioner is entitled for
decree of divorce as prayed for?

7. The petitioner has produced his affidavit in

evidence at Exh. 15 and the respondent-wife has

produced her affidavit at Exh.26. So also, the

petitioner has relied upon the judgments, earlier

proceeding between him and the respondent and office

copy of his notice to the respondent.

8. Considering the evidence adduced by the

parties, the learned Judge of the Family Court held

that the petitioner has failed to prove that the

respondent treated him with cruelty and that she has

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deserted him for a continuous period of two years

immediately preceding the petition and accordingly by

answering aforesaid issue Nos.1 and 2 in the

negative, dismissed the petition by the impugned

judgment. Aggrieved by the same, this appeal by the

petitioner-husband.

9. Mr. Ghule Patil, learned Advocate appearing

for the petitioner/husband submitted that according

to the respondent/wife the petitioner is having

illicit relation with one lady and therefore, there

was dispute between the petitioner and the

respondent. But, the respondent has failed to prove

the same. So also, respondent filed case bearing RCC

No.264/2001 under Section 498-A of the Indian Penal

Code against the petitioner and his relatives and the

Court has not accepted the said case. Moreover, she

has filed RCC No.1460/2012 under Sections 494, 323

and 109 of the IPC against the petitioner and others

and the learned Magistrate was pleased to issue

process against the petitioner and others for the

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aforesaid offences. But, the learned Sessions Judge

in Criminal Revision No.111/2014 challenging the

order of issue of process quashed and set aside the

order of issue of process and dismissed the

complaint. Thus, according to the learned Advocate

for the petitioner, the respondent has caused cruelty

to the petitioner by making allegations and filing

proceedings as above against him and others and

therefore, the trial Court should have accepted the

ground of cruelty to dissolve the marriage as

requested by the petitioner.

10. Mr. Ghule Patil, learned Advocate for the

petitioner further submitted that the petitioner and

the respondent are residing separate since 17 years.

The respondent has also stated the same in her

written statement. Moreover, in her cross-examination

she admits that she has been residing separate from

the petitioner since last 17 years. In both the

proceedings of restitution of conjugal rights filed

by the petitioner as well as the respondent referred

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earlier, the trial Court has observed that there is

no possibility of re-union of the petitioner and the

respondent. Therefore, according to the learned

counsel for the petitioner, it can be said that there

was desertion of the petitioner by the respondent for

more than two years preceding to filing of the

petition for divorce and therefore, the trial Court

ought to have accepted the case of the petitioner for

divorce on the ground of desertion also. Thus, the

learned Advocate appearing for the petitioner

submitted that negative findings recorded on both the

issue Nos.1 and 2 by the trial Court are incorrect

and he prayed that decree for dissolution of marriage

be passed on the grounds of cruelty of desertion as

claimed by him by setting aside the impugned judgment

and order by allowing the appeal. To support his

submissions, learned Advocate for the petitioner has

relied upon the decision in the case of Durga

Prasanna Tripathy Vs. Arundhati Tripathy, AIR 2005

Supreme Court 3297.

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11. Mr. Deshpande, learned Advocate appearing

for the respondent/wife on the other hand submitted

that this petition for divorce was filed in the year

2013. Till the date of filing said petition there was

no question of desertion. He submitted that both the

parties had filed petition for restitution of

conjugal rights against each other as stated earlier

and both were dismissed which shows that the parties

were ready to resume cohabitation. Learned Advocate

submitted that respondent had filed RCC No.1460/2012

against the petitioner and his relatives for the

offence under Section 494 of the Indian Penal Code as

he performed second marriage. In the said case

process was issued against the petitioner and said

order of issue of process was set aside by the

Sessions Court and the case was dismissed. Against

the dismissal of the complaint under Section 494 of

the IPC the respondent/wife has filed criminal Writ

Petition No.1005/2017 against the petitioner and

others in this Court and said writ petition has been

partly allowed on 03.07.2018 and order of the

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Magistrate issuing process against the petitioner and

his second wife has been restored. Thus, according to

the learned Advocate for the respondent while

dismissing the petition for divorce, the trial Court

has rightly observed that the respondent has reason

to live separate from the petitioner. Therefore,

according to learned Advocate simply because the

respondent is residing separate from the petitioner

it cannot be said that she has deserted the

petitioner so as to grant decree of divorce on the

ground of desertion. On the contrary according to the

learned Advocate, the petitioner has deserted the

respondent by performing the second marriage. He

submitted that the decision in the case of Durga

Prasanna Tripathy (supra) relied upon by the

petitioner is not applicable to the present case as

the facts of the present case are different from the

said decision. Moreover, it is submitted that the

petitioner has failed to prove that the respondent

has caused cruelty to him. It is submitted that to

give go bye to the case under Section 494 of the IPC

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against him the petitioner has filed this divorce

petition. Finally, learned Advocate submitted that

the trial Court has rightly considered the evidence

and held that the petitioner is not entitled to

divorce as claimed by him and rightly dismissed the

petition. As such he claimed that there is no ground

to interfere with the impugned judgment and the

appeal deserves to be dismissed.

12. We have carefully considered the submissions

made by the learned Advocates appearing for the

parties and with their assistance we have perused the

evidence adduced by the parties and the impugned

judgment.

13. There is no dispute about filing of the

proceedings against each other by the petitioner and

the respondent as referred earlier in detail and the

marriage between the petitioner and the respondent

was solemnized on 01.05.1997 and from the said

wedlock they have a daughter namely Bhagyashri who is

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residing with the respondent.

14. As regards the first ground of cruelty on

which the petitioner has claimed divorce, the

petitioner in his affidavit at Exh.15 deposed that

while the petitioner was serving at Parsoda, Tq.

Vaijapur in M.S.E.B. department in 1998 the

respondent had come to reside with him. Thereafter,

she was pregnant. She went to the house of the

parents. During the said period petitioner used to go

to the respondent and the petitioner used to give

expenses to the respondent from December, 1999 to

25.10.2000. However, as the respondent was loving

daughter of her parents, she used to say him to come

to Aurangabad to reside. Moreover, the petitioner

daily used to go to Deogaonrangari from Aurangabad as

he was transferred to Deogaonrangari and on that

count the respondent used to quarrel with him. At

that time as the respondent had gone to her parents

house, the petitioner had given notice to her through

Advocate calling upon her to resume cohabitation, but

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she did not come to cohabit with him and filed

proceeding under Section 125 of the Code of Criminal

Procedure. Therefore, he also filed Petition No.A-

180/2001 against the respondent for restitution of

conjugal rights, which was dismissed as stated

earlier. The petitioner has further stated that the

respondent had filed RCC No.264/2001 against him, his

parents, brother and sister under Section 498-A, 323,

504, 506 r/w 34 of the Indian Penal Code which is

false case and harassed him and his aforesaid

relatives. So also, the respondent is not conducting

the said case and therefore unnecessarily he and his

relatives are harassed. Moreover, he stated about the

filing of the false case bearing RCC No.1460/2012

under Section 494, 323 and 109 of the IPC against

him. So also, he stated that in the said case as the

Court has given direction to Begampura Police Station

to make enquiry he had to unnecessarily face the said

case.

15. In the cross-examination on behalf of the

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respondent, the petitioner has stated that since when

they resided separate the respondent is harassing him

and said harassment means though he filed case

against her to come to him for cohabitation, the

respondent is not coming to him to cohabit. He stated

that he has not lodged any complaint in any police

station in this respect. So also, he has denied that

he has performed second marriage with one Saroja and

from her he has one son and one daughter. He also

denied that since prior to marriage, he was having

illicit relation with said Saroja. He has denied that

to avoid maintenance and to give go bye to the case

under Section 494 of the IPC he has filed this

petition.

16. On perusal of the above referred evidence of

the petitioner, it is clear that according to him the

respondent caused harassment or cruelty to him since

they started residing separate as respondent did not

come to cohabit with him though he filed petition for

restitution of conjugal rights and as the respondent

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has filed criminal cases under Section 498-A and 494

of the IPC. But, merely because the respondent has

filed aforesaid cases against the petitioner it

cannot be said that the respondent has caused cruelty

to the petitioner.

17. Admittedly, the petitioner had filed

Petition No.A-180/2001 against the respondent-wife on

17.05.2001 in the Family Court, Aurangabad for

restitution of conjugal rights and the respondent had

also filed Petition No.A-835/2000 on 18.12.2000

against the petitioner under Section 125 of the Code

of Criminal Procedure claiming maintenance for

herself and her daughter Bhagyashri. Said both the

proceedings were decided by a common judgment and the

petition of the petitioner was dismissed and the

petition of the respondent for maintenance was

allowed and maintenance at the rate of Rs.500/- per

month was granted to her and her daughter was granted

maintenance of Rs.300/- per month from the date of

application. Admittedly, the respondent had also

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filed Petition No.A-270/2004 on 04.09.2004 for

restitution of conjugal rights against the petitioner

and the said petition was also dismissed by the

Judge, Family Court, Aurangabad on 06.09.2005. Filing

of the petitions by both the petitioner and the

respondent against each other for restitution of

conjugal rights show that they were interested in

cohabitation.

18. It is pertinent to note that the petitioner-

husband has not specifically pleaded as to how the

respondent has caused cruelty to him and his pleading

which is referred earlier in respect of harassment

caused to him by the respondent, is vague. Therefore,

uncorroborated evidence of petitioner is not

sufficient to state that the respondent has caused

cruelty to the petitioner within the meaning of

Section 13 (1)(i-a) of the Hindu Marriage, Act.

19. As regards ground of desertion on which the

petitioner has claimed divorce from the respondent-

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wife, his evidence shows that as per the judgment in

Petition No.180/2001 in paragraph No.34 the Court has

observed, “that a decree for restitution of conjugal

rights pre-supposes that parties will make an

endeavor to live together peacefully and happily

where the circumstances of the case discloses that

there is no possibility of the parties living

together in a state of happiness a decree for

restitution of conjugal rights would be unjustified.”

Moreover, he has stated that he is suffering Lumber

Spondylir C Polyassive and recently in the sonography

it is found that his Left Kidney shows mild

hydronephoris with hydropeter obstructing calculars

at lt. vvj and therefore he is in need of partner. He

stated that the respondent is not coming to him for

cohabitation and hence it is necessary to dissolve

his marriage with the respondent and to perform

second marriage. Before accepting or rejecting the

above said evidence of the respondent on the ground

of desertion, it is necessary to refer the evidence

of respondent-wife.

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20. The respondent-wife in her evidence at

Exh.26 deposed in accordance with her case regarding

mental and physical cruelty caused to her by the

petitioner, about filing of the case for the offence

under Section 494-A of the IPC against the petitioner

and others and about filing of the case under Section

494 of the IPC against the petitioner as he has

performed second marriage. She has stated that the

petitioner has one son and one daughter from the

second wife namely Saroja. He has also stated that to

give go bye to her case under Second 494 of IPC

against the petitioner, the petitioner has filed the

present petition. In the cross-examination on behalf

of the petitioner, she has denied that she has

deposed false to harass the petitioner. Thus nothing

is found in favour of petitioner in the cross

examination of the respondent.

21. It appears from the evidence of the

petitioner that the respondent is residing separate

from him since 2000. But, as the evidence of

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respondent shows that the petitioner has performed

second marriage with one Saroja and he has son and

daughter from the marriage with Saroja, it cannot be

said that she has deserted the petitioner. On the

contrary her evidence shows that she has just and

sufficient ground to reside separate from the

petitioner. Moreover, as observed earlier merely

because the Court has observed while deciding the

petitions for restitution of conjugal rights of the

petitioner and the respondent that there is no

possibility of re-conciliation between the parties,

the same is not sufficient to infer that the

respondent has deserted the petitioner within the

meaning of Section 13 (1)(i-b) of the Hindu Marriage

Act.

22. The trial Court on proper appreciation of

the evidence of the petitioner and the respondent

held that the petitioner has failed to prove that the

respondent has caused cruelty to him and that she has

deserted him for a continuous period not less than

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two years immediately preceding the petition for

divorce and answered issue Nos. 1 and 2 in the

negative. For the reasons discussed hereinabove we

find no fault with the said findings recorded by the

trial Court.

23. Learned Advocate appearing for the

petitioner relying upon the ratio laid down in the

case of Durga Prasanna Tripathy (supra) submitted

that as the petitioner and the respondent are

residing separate for almost 17 years, the trial

Court ought to have granted decree for divorce in

favour of the petitioner. As per the facts of the

said decision, the respondent-wife in the said case

was not prepared to lead conjugal life with husband

and they were residing separately for almost 14

years. Moreover, there was an irretrievable breakdown

of marriage and hence decree of divorce on the ground

of desertion was granted by the Hon’ble Apex Court.

In the present case, the respondent is residing

separately for almost 17 years. But, the respondent-

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wife was ready to live conjugal life with the

petitioner-husband and therefore, she had filed

petition for restitution of conjugal rights against

the petitioner which was dismissed. Moreover, as the

respondent has filed criminal case against the

petitioner for the offence under Section 494 of the

IPC as observed earlier, she has just and reasonable

ground to reside separate from the husband and hence

it cannot be said that she has deserted the

petitioner. Therefore, ratio laid down in the above

decision cannot be suitably made applicable to the

present case to grant decree of divorce on the ground

of desertion. Therefore, the arguments advanced by

the learned Advocate appearing for the petitioner is

not accepted.

24. For the reasons discussed hereinabove, we

hold that the trial Court has rightly dismissed the

petition for divorce of the petitioner by the

impugned judgment and there is no justifiable ground

to interfere with the same. Therefore, the appeal

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being devoid of merits, the same is liable to be

dismissed. Accordingly, we dismiss the same. No order

as to costs.

[S.M.GAVHANE,J.] [PRASANNA B. VARALE,J.]

VishalK/fca21.16

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