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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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