SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Satish Dhudku Halnor vs Sau Yogta Satish Halnor Through … on 22 April, 2019

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

SECOND APPEAL NO.407 OF 2018

Satish Dhudku Halnor,
Age 39 yrs., Occ. Service,
R/o Rohidas Housing Society,
Chalisgaon, Dist. Jalgaon.
Presently residing at Dakshata Nagar,
Centre No.2, Room No.3, Police Line,
Jalgaon, Tq. Dist. Jalgaon.

… Appellant.

…Versus…

Sau. Yogita Satish Halnor,
Age 34 yrs., Occ. Household and
Tailoring work. Through,
Hiraman Nimba Patil, Ozar,
R/o Type-A, 2259, Township Ozar,
Nasik.
At present R/o Khanderav Tample, Ozar,
Tq. Niphad, District Nasik.
… Respondent.


Mr. K.C. Sant, Advocate for the appellant
Mr. K.S. Patil, Advocate for the respondent

CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 21st FEBRUARY, 2019
PRONOUNCED ON : 22nd APRIL, 2019

::: Uploaded on – 24/04/2019 25/04/2019 01:04:13 :::
2 SA_407_2018

JUDGMENT:

1 Present appeal has been filed by the original petitioner-husband

challenging the concurrent Judgment and Decree against him. He had filed

Hindu Marriage Petition No.327/2010 before 2nd Joint Civil Judge Senior

Division, Jalgaon under Section 13 (1) (ia) and (ib) of Hindu Marriage Act,

1955 for dissolution of marriage. It is not in dispute that petitioner and

respondent are the husband and wife and their marriage was solemnized on

11.12.2001 as per Hindu rites and customs. They have son by name Anand.

Petitioner was employed in police even prior to the marriage. It is also not in

dispute that petitioner had issued notice for dissolution of marriage on

15.04.2003 to the respondent and it was replied by the respondent.

Petitioner had filed Marriage Petition No.112/2003 for dissolution of

marriage, but then it was compromised. It is also not in dispute that the

respondent-wife had lodged First Information Report for the offence

punishable under Section 498-A of the Indian Penal Code against the

petitioner and his family members. It was compromised during the pendency

of the said criminal case. In spite of the settlement of the dispute, she lodged

report again for the offence punishable under Section 498-A read with

Section 34 and Section 494 of the IPC on 13.05.2005. Further, it is not in

dispute that the petitioner and his family members have been acquitted from

::: Uploaded on – 24/04/2019 25/04/2019 01:04:13 :::
3 SA_407_2018

the said criminal proceedings. Another criminal proceeding was filed by the

father of the respondent under Section 97 of Cr.P.C. for custody of the

respondent against the petitioner. That application was disposed of.

Respondent-wife had also filed application under Section 24 of the Guardian

and Wards Act for custody of son Anand. That application was dismissed.

She has also filed application for maintenance under Section 125 of Cr.P.C.

against the petitioner. Respondent-wife has also filed a complaint under

Section 323, 504 of I.P.C. on 07.07.2003 against one Sonyabapu Deoram

Thorat, who is the relative of the husband. Father of the respondent has also

filed a private criminal complaint against petitioner and his relatives under

Section 498-A read with Section 34 of the IPC on 02.08.2003 vide complaint

case No.574/2003. One more application has been filed by the respondent-

wife for various reliefs under Domestic Violence Act and it is pending before

Judicial Magistrate First Class, Pimpalgaon, Tq. Niphad, Dist. Nashik.

2 The petitioner had contended that after the marriage, wife used

to complain that the marriage was solemnized against her wish. She has tried

to commit suicide by self immolation on that ground. One more time she has

tried to commit suicide by consuming phenyl. She used to give threats to

petitioner-husband regarding false implication of him as well as his family

members in criminal matters. She was insisting on the petitioner to bring

::: Uploaded on – 24/04/2019 25/04/2019 01:04:13 :::
4 SA_407_2018

luxurious articles. She used to pick up quarrels with the husband and

because of that he was physically and mentally harassed. Wife went to her

parents house without informing him on 28.03.2003 and his efforts to fetch

her back did not yield results immediately. Thereafter, he had given the said

notice for dissolution of marriage. It is also contended by husband that wife

has lodged several criminal cases against him without any reason, it amounts

to cruelty for him. Wife is not residing with him since 12.05.2005 and

therefore, he prayed for dissolution of marriage.

3 The wife has resisted the claim of the husband by filing written

statement. It is stated that in her reply to the notice issued by the petitioner,

she has clearly stated that she is willing to cohabit, however, the petitioner

has not taken her back. When she was with petitioner, he used to demand

amount of Rs.50,000/- for purchasing flat. He had abused her and

threatened her to kill, when she could not fulfill the said demand. He had

not provided proper meals to her. She had, therefore, given an application to

Police Station on 17.07.2003, however, since the petitioner himself is a

constable, her application was not taken seriously. She was beaten and

driven out of the house on 06.08.2003. Her father was constrained to file

application under Section 97 of Cr.P.C. So also, she has been constrained to

file various litigations. Though there was a compromise between her and the

::: Uploaded on – 24/04/2019 25/04/2019 01:04:13 :::
5 SA_407_2018

husband during the pendency of earlier divorce petition, and petitioner had

agreed to take her back for cohabitation; instead of keeping her with himself,

he had kept her with his relatives for about 8-10 days. Thereafter, after

beating her and abusing her in the house of relative, she was driven out. At

that time, he was demanding amount of Rs.50,000/- for purchasing

motorcycle. Therefore, she was forced to file report again under Section 498-

A of IPC. It is stated that petitioner has performed second marriage. Even

the relatives of the petitioner are pressurizing her for dissolution of marriage.

She has expressed readiness to cohabit with the petitioner and therefore, she

prayed for dismissal of the petition.

4 Both the parties have led oral as well as documentary evidence

after the issues were framed. After considering the evidence on record and

hearing both sides the learned Trial Court has dismissed the petition.

5 The said Judgment and Decree of the Trial Court was challenged

by the husband in R.C.A. No.58/2015 before District Court, Jalgaon. The

said appeal was heard by learned District Judge-5, Jalgaon and it was

dismissed on 13.02.2018. Hence, this Second Appeal.

6 Heard learned Advocate Mr. K.C. Sant for appellant and learned

Advocate Mr. K.S. Patil for respondent. In view of order passed by this Court

::: Uploaded on – 24/04/2019 25/04/2019 01:04:13 :::
6 SA_407_2018

on 12.07.2018, the matter has been decided finally at the stage of admission

itself.

7 It has been submitted on behalf of the appellant that most of the

facts are not in dispute. However, since the petitioner had filed the petition,

it was for him to prove that respondent had treated him with cruelty and has

deserted him without any reasonable cause, for a period of more than two

years. It is not in dispute that the husband and wife were residing separately

since more than two years prior to the petition. It is also not in dispute that

various criminal litigations were filed by the wife. Filing of so much of

litigations itself amounts to cruelty. The husband and the relatives have been

acquitted of the offences punishable under Section 498-A of IPC. Though the

order of maintenance has been passed, the parameters are different. It has

come on record that the father of the wife had filed application under Section

97 of Cr.P.C. contending that the wife has been wrongly confined. In fact, the

said application ought not to have been entertained, as the father himself has

admitted in the cross-examination that his daughter was in his house. Still

he went on to file the application. Therefore, it shows that it was a frivolous

application. Further, the son was with wife. Still she filed application under

Section 24 of the Guardian and Wards Act for custody. That means, she has

dragged the husband into unnecessary litigation and therefore, it amounts to

::: Uploaded on – 24/04/2019 25/04/2019 01:04:13 :::
7 SA_407_2018

cruelty. No doubt, earlier also the husband had filed petition for divorce

prior to 2006 and it was compromised in 2006 itself. However, there was no

attempt by the respondent to resume cohabitation. By virtue of orders of the

criminal Court she is getting maintenance @ Rs.9,000/- per month.

Therefore, it appears that she is happy to reside separately. Under such

circumstance, at least the ground of desertion should have been considered

by both the Courts below. In order to buttress his submissions he has relied

on the decision in A. Jayachandra vs. Aneel Kaur, AIR 2005 Supreme

Court, 534, wherein expression “cruelty” has been interpreted as used in

Section 13 of the Hindu Marriage Act. It has been observed –

“The expression ‘cruelty’ has been used in relation to human conduct
or human behaviour. It is the conduct in relation to or in respect of
matrimonial duties and obligations. Cruelty is a course or conduct
of one, which is adversely affecting the other. The cruelty may be
mental or physical, intentional or unintentional. If it is physical, the
Court will have no problem in determining it. It is a question of fact
and degree. If it is mental, the problem presents difficulties. First,
the enquiry must begin as to the nature of cruel treatment, second
the impact of such treatment in the mind of the spouse, whether it
caused reasonable apprehension that it would be harmful or
injurious to live with the other. Ultimately, it is a matter of inference
to be drawn by taking into account the nature of the conduct and its
effect on the complaining spouse. However, there may be a case
where the conduct complained of itself is bad enough and per se

::: Uploaded on – 24/04/2019 25/04/2019 01:04:13 :::
8 SA_407_2018

unlawful or illegal. Then the impact or injurious effect on the other
spouse need not be enquired into or considered. In such cases, the
cruelty will be established if the conduct itself is proved or admitted.
To constitute cruelty, the conduct complained of should be ‘grave
and weighty’ so as to come to the conclusion that the petitioner
spouse cannot be reasonably expected to live with the other spouse.
It must be something more serious than ‘ordinary wear and tear of
married life’. The conduct, taking into consideration the
circumstances and background has to be examined to reach the
conclusion whether the conduct complained of amounts to cruelty in
the matrimonial law. Conduct has to be considered, as noted above,
in the background of several factors such as social status of parties,
their education, physical and mental conditions, customs and
traditions. It is difficult to lay down a precise definition or to give
exhaustive description of the circumstances, which would constitute
cruelty. It must be of the type as to satisfy the conscience of the
Court that the relationship between the parties had deteriorated to
such an extent due to the conduct of the other spouse that it would
be impossible for them to live together without mental agony,
torture or distress, to entitle the complaining spouse to secure
divorce. Physical violence is not absolutely essential to constitute
cruelty and a consistent course of conduct inflicting immeasurable
mental agony and torture may well constitute cruelty within the
meaning of S.10 of the Act. Mental cruelty may consist of verbal
abuses and insults by using filthy and abusive language leading to
constant disturbance of mental peace of the other party.”

8 Further reliance has been placed on Smt. Mayadevi vs. Jagdish

Prasad, AIR 2007 Supreme Court 1426, wherein it has been held that for

::: Uploaded on – 24/04/2019 25/04/2019 01:04:13 :::
9 SA_407_2018

proof of cruelty under Section 13 of Hindu Marriage Act, it is not required to

be proved beyond reasonable doubt as it requires in criminal trial, one has to

see what are the probabilities in a case and legal cruelty has to be found out,

not merely as a matter of fact but as the effect on the mind of the

complainant spouse because of the act or omission of the other. Cruelty may

be physical or corporeal or may be mental. In physical cruelty, there may be

tangible and direct evidence, but in the case of mental cruelty there may not

at the same time be direct evidence. In cases where there is no direct

evidence. Courts are required to probe into the mental process and mental

effect of the incidents that are brought out in evidence.

9 Further reliance has been placed on the decision in Shri

Mangesh Balkrushna Bhoir vs. Sau. Leena Mangesh Bhoir decided by this

Court at Principal Seat in Second Appeal No.634 of 2013 dated 23.12.2015,

wherein also the wife had lodged various criminal proceedings and they were

taken as acts of mental cruelty to the husband.

10 Per contra, the learned Advocate appearing for the respondent

supported the reasons given by both the Courts below and submitted that the

various litigation has not been filed for luxury or for pleasure by the wife.

But as it was the right of the wife to fight out for her rights and want to get

redress of the grievances. Acquittal of the husband and his relatives from the

::: Uploaded on – 24/04/2019 25/04/2019 01:04:13 :::
10 SA_407_2018

complaint under Section 498-A of IPC on merits without any observation by

the Trial Court, that the complaint itself is false, will not amount to

harassment of any kind. No advantage can be given to the husband. On the

contrary, it had been produced on record that the wife has obtained decree

for restitution of conjugal rights against the husband and still the husband is

not taking steps to take her back for cohabitation. The husband was only

interested in the divorce and if it is seen that he has taken action only within

20 days of alleged desertion or separation that he has given notice for

divorce. There was no attempt by the husband to take the wife back for

cohabitation. It has come on record that when she left the house under

constrained circumstances she was pregnant. It would have rather given

mental stress to the wife, than the husband. Dismissal of the application

under Section 97 of Cr.P.C. as well as 24 of the Guardian and Wards Act will

not amount to cruelty or dragging the husband to a litigation. The Criminal

Court has granted maintenance to the wife and the son and they were

required to approach the revision Court in order to get enhancement in

maintenance amount. Even that enhancement is granted. It shows that a

competent Court had come to the conclusion that the husband is neglecting

the wife and the son from maintaining. He also submitted that the

authorities relied by the learned Advocate for the appellant are not helpful,

::: Uploaded on – 24/04/2019 25/04/2019 01:04:13 :::
11 SA_407_2018

as the facts in those cases are different. What acts alleged in present petition

amount to cruelty will have to be decided on its facts. Both the Courts have

concurrently decided it and come to the conclusion that those alleged acts do

not amount to cruelty or desertion without reasonable cause by the wife.

Therefore, no substantial question of law is arising in this matter.

11 The first and the foremost fact, that is required to be considered

is, the petitioner had filed Hindu Marriage Petition No.112/2003 on

09.06.2003 and it was withdrawn on 18.08.2006, on the ground that he does

not want to proceed with the matter and therefore, simple withdrawal was

permitted. There was no mention of compromise in the say. But then it

appears that almost at the same time, the wife had filed H.M.P. No.238/2003

before Civil Judge Senior Division, Nashik for restitution of conjugal rights.

That petition came to be allowed on 05.12.2006. That means, the first

petition filed by the husband was withdrawn by him. Yet the petition under

Section 9 of the Hindu Marriage Act filed by the wife came to be decreed.

The respondent therein, that means the present husband had not resumed

cohabitation with the petitioner. It can be seen that he had not challenged

the said Judgment and Decree in appeal, that means, that decree had become

final. Perusal of the decree passed in the said petition at Exh.67 would show

that it was filed on the basis of desertion. That means, the desertion without

::: Uploaded on – 24/04/2019 25/04/2019 01:04:13 :::
12 SA_407_2018

any reasonable cause by the husband was accepted by the competent Court.

Under that circumstance, now it does not lie in the mouth of the husband

that wife has deserted him without any reasonable cause.

12 The fact is also admitted in the cross by the husband that wife

cohabited with him for about two years and during that period she had

become pregnant. It is the specific contention of the wife that when she was

driven out of the house, she was pregnant. Even questions have been asked

that he did not even go to see his child. Though he has denied that, he was

unable to tell as to how many times he has met his son. If the wife was

pregnant then it is hard to believe that she would have left the house of the

husband, on her own accord, without any reason.

13 The husband has come with the case that the wife used to give

him threats that she would commit suicide as the marriage is against her

wish. This reason itself is unbelievable, because wife had become pregnant

from the husband. A pregnant lady may not take extreme step to commit

suicide unless there would be constrained circumstances. Pregnant lady will

not think of taking life of herself, when she would be giving birth to a life.

Except the bare words of the husband and his brother who has been

examined as a witness in this case, there was nothing on record. We cannot

forget a fact that petitioner-husband is employed in Police, that too he is

::: Uploaded on – 24/04/2019 25/04/2019 01:04:13 :::
13 SA_407_2018

working as a Police Constable. There was no hurdle for him to lodge a report

against the wife, if such kind of hallow threats were given by the wife to him.

Without taking any action, now, it may be easy for him to orally say

something to support his cause.

14 It appears that within few days of wife leaving the house, the

husband has issued notice directly for divorce. There was absolutely no

attempt on his part to bring her for cohabitation. This action on the part of

the husband itself is surprising and it shows that he would not have accepted

anything less than divorce. It is not his case that when such threats to

commit suicide were given by the wife, he had called upon her father or

arranged a meeting of elders to give advise to the wife and restrain her from

doing any such acts in future. That could have been the natural conduct on

his part. When the said natural conduct is not forthcoming it casts doubt

over the bona fides of the husband.

15 Much capital has been tried to be raised in respect of various

proceedings between the husband and the wife. There is no dispute, on the

fact that if a party goes on filing false or frivolous complaint, then it will

certainly amounts to mental cruelty. Therefore, the ratio laid down in AIR

2005 SC 534 and AIR 2007 SC 1426 (supra) cannot be disputed. The only

fact is that whether the facts of the present case depicts such legal position or

::: Uploaded on – 24/04/2019 25/04/2019 01:04:13 :::
14 SA_407_2018

not. As regards search warrant taken out by the father of the respondent, it

is to be noted that the search warrant was issued and this fact is admitted by

the husband in his cross-examination. Witness Hiraman is the father of wife

and in his cross-examination he has stated that say was filed by the husband

to the application under Section 97 of Cr.P.C. on 11.08.2003 and in that say it

was mentioned by the husband that his wife is in the house of this witness

i.e. her father’s house. No doubt, that application was dismissed. But the

cross-examination of this witness does not show that he has admitted the fact

that the daughter was with him and yet he proceeded to file application

under Section 97 of Cr.P.C.. Therefore, it cannot be said that the said

application was frivolous. As regards application under Section 24 of the

Guardian and Wards Act is concerned, what was prayed by the wife was to

have custody of the child though the child was with her. Section 24 of the

Guardian and Wards Act provides duties of guardian of the person. At the

most, it can be said that she wanted to get herself declared as guardian of the

said ward. Under such circumstance, that act also can not be stated as an act

to harass or cause mental cruelty to the husband. She has also filed litigation

for maintenance to which she was entitled to, since the husband has not

claimed that he had made provision for her maintenance. Same is the case as

regards her application under Domestic Violence Act. Therefore, mere filing

::: Uploaded on – 24/04/2019 25/04/2019 01:04:13 :::
15 SA_407_2018

of these proceedings ipso facto will not amount to “cruelty” as contemplated

under Section 13 of the Hindu Marriage Act.

16 One more aspect was tried to be argued that since last so many

years i.e. from 2002 the parties are residing separately and there is absolutely

no possibility of their cohabitation. The Trial Court ought to have granted

divorce. The husband in this case has not made out the case for irretrievable

break down of marriage. It is by his own acts he is keeping the wife away.

Further in his cross-examination he had categorically stated that he is not

willing to take the wife along with him. Under such circumstance, when he

has no desire, it cannot be said that there is irretrievable break down of

marriage.

17 Taking into consideration the above said reasons both the Courts

below have come to the correct conclusion and rightly refused decree of

divorce. No substantial question of law has been pointed out. Though the

matter is dealt with finally, at the stage of admission itself, as no case is made

out to interfere with the judgment and decree passed by both the Courts

below, substantial question of law need not be framed. Hence, following

order.

::: Uploaded on – 24/04/2019 25/04/2019 01:04:13 :::

16 SA_407_2018

ORDER

1 The Second Appeal is dismissed.

2 Decree be drawn accordingly.

3 No order as to costs.

( Smt. Vibha Kankanwadi, J. )

agd

::: Uploaded on – 24/04/2019 25/04/2019 01:04:13 :::

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation