1 FCA – 20-2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FAMILY COURT APPEAL NO. 20 OF 2017
Sow. Sangita W/o. Rajesh More,
Age 29 years, Occu. Teacher,
C/o. Vishvnath Sahebrao Gaikwad,
Near Govt. Milk Dairy, Dhanegaon,
Nanded .. Appellant
(Orig. Respondent)
VERSUS
Rajesh S/o. Panditrao More,
Age 30 years, Occu.: Service,
R/o. ND 42/D/18/7, Sambhaji Chowk,
CIDCO, Nanded, Tq. Dist. Nanded .. Respondent
(Orig. Applicant)
…
Mr. S.B. Bhapkar, Advocate for appellant
Mr. V.P. Kadam, Advocate for respondent
…
CORAM : SUNIL P. DESHMUKH
P. R. BORA, JJ.
DATE : 15-01-2018
ORAL JUDGMENT (PER – SUNIL P. DESHMUKH, J.) :
1. Heard learned counsel for the appellant and learned
counsel for the respondent.
2. The appeal is preferred against dissolution of marriage
under decree of divorce by Family Court, Nanded dated 12-04-2017.
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2 FCA – 20-2017
3. Learned counsel Mr. Bhapkar for appellant submits that
the judgment and decree of Family Court has been in absence of
evidence by appellant. He submits that opportunity be given to
appellant to lead evidence in the matter, which hitherto could not be
given for various reasons, including that there are several other legal
matters pending between the parties.
4. On the other hand, Mr. V.P. Kadam, learned counsel for
respondent submits that the appeal has been preferred to harass the
respondent and to ruin his life and career. He submits that several
opportunities which had come appellant’s way, which have been
deliberately skipped to be availed with a view to vex the appellant.
He submits that there have been several instances of cruelty not
only alleged against the appellant but those have been proved. He
further submits that conduct of appellant in the matter had been
imbued with malafides and cruelty.
5. He submits that after marriage in 2008, for about two
months, appellant had behaved properly. However, thereafter, she
had threatened to discontinue relationship with the respondent.
She had been whimsical in nature. She had insulted petitioner on
his looks. Respondent had been made to bear with every kind of
cruelty including suspecting his character and respondent had not
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3 FCA – 20-2017
been suitable for the family of appellant. She had been insisting
upon to reside separately abandoning his parents and relatives. She
caused mental and physical cruelty to respondent. Respondent had
been abused and assaulted by her father and brothers. She had left
the matrimonial house without any intimation in June, 2008 and had
never resumed cohabitation. Efforts by his parents and relatives to
bring her back to matrimonial home, had been futile. Her brother
and his friends had been to the house of respondent. They had
intimidated his mother and had demanded divorce. Information in
respect of same had been lodged with police station. In the meeting
thereafter, it was decided to have divorce by mutual consent by
paying an amount of Rs. 3 Lakh and accordingly, the amount had
been paid to father of respondent by demand draft. He submits that
all aforesaid incidents have been brought before Court and Court
had decided the issues, finding that appellant had deserted
respondent for two years before petition and had treated him with
cruelty.
6. Perusal of judgment shows that appellant had resisted
the petition contending that there had been demand of Rs.5 Lakh for
getting permanent service to respondent and since her father could
not fulfill the demand, she was being harassed. She was kept
outside the house. She was prohibited from having food and good
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4 FCA – 20-2017
clothes. All sufferings were narrated by her to her parents. Her
parents had tried to patch up the differences, however, to no avail.
Efforts for reconciliation by appellant had failed. False report had
been lodged against her brother. She thus, appears to have resisted
the petition stating aforesaid.
7. Family Court has considered that the conduct of
appellant in aggregate is an indication of mental cruelty being
caused to respondent. Family Court has also referred to a case in
this respect Prakash Kalandari V/s Janvhi Kalandari AIR 2011 Bom. 119.
8. Family Court has taken stock of the situation in
paragraph no. 16 of its judgment, reading thus :
” 16. It would not be out of place to mention that the manner in
which respondent has dragged this proceeding would also
amount to causing mental cruelty to the other side. Record is
self eloquent about the persistent efforts taken by respondent to
prolong the petition. At every stage of trial she sought
adjournments on different pretext. Even when the matter was
pending for final arguments she sought adjournment on the
ground of changing her advocate. It discerns from the record
that she filed applications for interim maintenance on two
occasions and both were dismissed for default. She sought
several adjournments for cross-examination of petitioner and
finally did not cross examine him. Despite seeking ample
adjournments she did not adduce any evidence. At every stage
of the petition adverse orders were required to be passed against
the respondent. At the stage of arguments respondent filed
applications at Exh.75, 76 and 77 for setting aside the adverse
orders against her. By elaborate order dated 09/03/2017 the
applications at Exh. 75, 76 and 77 were rejected. In my opinion,
such conduct would also amount to mental cruelty to the other
spouse.”
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5 FCA – 20-2017
9. The grounds in appeal even remotely do not suggest that
appellant wants to lead evidence in the matter.
10. There is no reason coming forth for non-adducing any
evidence in trial before Family Court.
11. It appears that the respondent had given his own
evidence along with copies of certain documents viz. first
information report, judgment in regular criminal case no. 585 of
2011, deposition of petitioner in said criminal case. Despite
examination-in-chief of respondent, he had not been cross-examined
and his evidence had been unchallenged. Appellant had not stepped
into witness box. Family court found substance in the case put up
on behalf of the respondent about desertion. The Court has also
adjudged that although it has been pleaded by appellant that there
had been attempts for reunion and reconciliation, the same is
absolutely not borne out by any evidence on record. From the
evidence, it appears, the Family Court found such efforts on behalf
of respondent have been substantiated by evidence as given on
behalf of appellant.
12. It may not be out of place to refer that before present
proceeding had been initiated by respondent, there had been no
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6 FCA – 20-2017
complaint by appellant in respect of any cruel treatment being given
to her or about demand of money or of other allegations made
resisting claim under the divorce petition. It also appears that the
contention on behalf of respondent about ill-treatment particularly,
suspecting his character and threats to abandon him or about him
being not good looking, have gone un-rebutted. So is the case in
respect of her dislike to keep physical relations with him.
13. The evidence further shows that appellant’s brother and
his friends were accused of abusing and intimidating respondent and
criminal prosecution had been launched against them in respect of
the incident.
14. Thereafter, the parties appear to have resolved in a
meeting whereunder, it appears to have decided that appellant and
respondent would get separated by obtaining divorce by mutual
consent on the condition that a lumpsum amount of Rs. 3 Lakh
would be paid by respondent to appellant towards future
maintenance. Accordingly, the amount had been paid under bank
demand draft.
15. It has been contended on behalf of respondent that in
the meeting it was also agreed that the complaint against her
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7 FCA – 20-2017
brother would not be prosecuted further in order to see that he is
acquitted. Accordingly, it appears that the criminal prosecution has
resulted into acquittal. Such term had been agreed is also
evidenced in the deposition by respondent in the criminal case. The
Court had thus adjudged that the acquittal would be required to be
considered as outcome of the compromise.
16. The evidence does show that in August, 2015, a meeting
had been held amongst family members of the parties in which
dissolution of marriage had been contemplated and agreed upon.
The fact is borne out by subsequent conduct by respondent by
tendering an amount of Rs. 3 Lakh. Even conduct on behalf of
appellant lends credibility to same since it appears that on
24-08-2015, an application had been filed by appellant and
respondent for conversion of the petition filed by the respondent to
the petition under section 13-B of the Hindu Marriage Act.
Accordingly, affidavits were also filed by the parties and the matter
had been posted for judgment. However, subsequently, it appears
that appellant had resiled and purported to withdraw the consent for
divorce by mutual consent.
17. While there is no denial of the factual position about
respondent having paid Rs. 3 Lakh to appellant in furtherance of the
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8 FCA – 20-2017
decision in the meeting that had taken place amongst the family
members. This Court had, on three occasions, directed appellant to
take instructions in respect of deposit of Rs. 3 Lakh in this Court,
however, no instructions have been coming forth save and except
contention by counsel for appellant that an amount of Rs. 50,000/-
had been deposited pursuant to direction of Family Court, however,
order shows that said amount had been directed to be returned to
appellant.
18. The situation leads to that the appeal has not been
preferred bonafide.
19. In the circumstances, the appeal is devoid of any
substance and the same is dismissed.
[P. R. BORA] [SUNIL P. DESHMUKH]
JUDGE JUDGE
arp/
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