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
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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
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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
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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
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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
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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
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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
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8 SA_407_2018unlawful 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
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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
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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,
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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
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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
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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
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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
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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.
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ORDER
1 The Second Appeal is dismissed.
2 Decree be drawn accordingly.
3 No order as to costs.
( Smt. Vibha Kankanwadi, J. )
agd
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