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Shraddha Prasad Ganu vs Prasad Nilkanth Ganu on 15 June, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

FAMILY COURT APPEAL NO.36 OF 2017
WITH
CIVIL APPLICATION NO.12452 OF 2017

Shraddha W/o. Prasad Ganu, …APPELLANT
Age-27 years, Occu-Nil, (Ori.Respondent)
R/o.Flat NO.40, 6th Floor,
‘B’ Wing, Morya Building,
Suryoday Complex,
Kalbhor Nagar, Old Mumbai-Pune Highway,
Chinchwad, Pune-411019

VERSUS

Prasad S/o. Nilkanth Ganu, …RESPONDENT
Age-33 years, Occu-Service, (Ori.Petitioner)
R/o. Plot No.121, Dattaprasad Banglow,
Jaivishwabharti Colony, Aurangabad

Mr.S.R.Dheple, Advocate for the appellant
Smt.R.R.Mane, Advocate for the respondent

CORAM :S.S. SHINDE
S.M. GAVHANE, JJ.

RESERVED ON :23.04.2018
PRONOUNCED ON :15.06.2018

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

. The appellant wife (hereinafter referred to as
the ‘respondent’) against whom decree for divorce under
Section 13 (1)(i-a) of the Hindu Marriage Act, 1955 has

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been passed on 11.08.2017, in petition No.A-342/2016
filed by present respondent-husband (hereinafter referred
to as the ‘petitioner’), by the Principal Judge, Family
Court, Aurangabad, has preferred this appeal being
aggrieved by the said decree.

2. Facts giving rise to this appeal, in short, are
as under:-

A] The marriage between petitioner and respondent
was solemnized on 05.01.2013 according to the Hindu Vedic
Rites and it is love marriage. After marriage they
resided at Aurangabad and one son is born from the said
wedlock, who is in the custody of respondent.

B] Case of the petitioner/husband before the Family
Court was that within 4 to 5 months of the marriage the
respondent/wife on some ground or other started taunting
his parents and pick up a fight. The petitioner being
only son of his parents, they tolerated respondent’s
mental and physical ill-treatment. Even after birth of
the son, there was no change in the behavior of the
respondent. She also started ill-treating the petitioner.
According to the petitioner, on being frustrated, his
parents and he himself being fed up with the conduct and

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behavior of the respondent decided in February, 2016 to
live separately from his parents. In spite of living
separately, there was no change in the behavior of
respondent.

C] Further, it is the case of the petitioner that
the respondent threatened him that she would send him and
his parents to jail, as her mother is criminal lawyer.
She left all the gifted jewellery given to her by his
father, at her mother’s house. He used to hand over
entire salary to her. Both of them were earning but
income was not huge. The respondent used to insist for
buying a flat, air-conditioner, car, Fridge and TV. He
gave understanding that their economical condition is not
so good, but in vain. The respondent being short
tampered, was insulting him in presence of the relatives,
friends and guests.

D] According to petitioner on 29.06.2016, there was
Death Anniversary of father of respondent. Due to work he
reached home at 11.00 O’clock. The respondent quarreled
with him on the issue of his returning home late. The
petitioner found pizzas at home. He inquired from the
respondent about it. The respondent in a fit of anger
attacked him. She scratched him with her nails, hit him

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with kicks and blows. One of the blows hit on his eye and
the same turned black. He got injuries on his neck and
chest. Since the incident occurred at night, on the next
day i.e. on 30.06.2016, he went to the police station and
lodged complaint against the respondent, being Crime
No.1754/2016 dated 02.07.2016. He was sent by the police
to Ghati Hospital, Aurangabad for medical examination and
treatment.

E] According to the petitioner, after the said
incident, due to mental and physical ill-treatment at the
hands of respondent, it is not possible to continue to
live with the respondent. He apprehends danger to his
life. The mother of respondent on telephone abused and
threatened the petitioner of filing false criminal
complaints and sending him to jail. In these
circumstances, the petitioner filed petition for
dissolution of marriage and ultimately prayed to dissolve
the marriage between him and the respondent on the ground
of cruelty.

F] Respondent/wife resisted the petition by filing
reply at Exh.9. She has admitted her marriage with the
petitioner and birth of son from said wedlock. However,
she has denied almost all the allegations made against

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her by the petitioner attributing cruelty to him by her.

G] Case of the respondent is that being a love
marriage, the parents of the petitioner and his relatives
were against the marriage. The entire marriage expenses
of Rs.4.5 lacs to 5 lacs including jewellery had to be
met by her parents. On 07.01.2013, the mother of the
petitioner on the pretext of keeping all the ornaments in
the locker, recovered the same. Since then till date, her
jewelery is in custody of mother of the petitioner. The
petitioner and his parents behaved with her properly only
for one month. The house of the petitioner is two storey.
On the first floor there is a kitchen. On the second
floor there is a bed room of the petitioner and
respondent. Father of the respondent used to close the
door of the first floor from 11 to 4 pm. The respondent
used to bring food of the petitioner and herself on the
ground floor. The respondent further contends that during
her pregnancy, the petitioner would go with her every
month for medical checkup. In her 3rd month of pregnancy,
the Doctor enquired about diet and she informed that
except two meals she is not allowed to eat. The
petitioner and his parents were angry with respondent for
informing the doctor about her diet. Hence, she was
abused. She then left for her mother’s house at

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Chinchwad.

H] Further, it is the case of the respondent that
in June, 2013, the petitioner wanted to buy Royal Enfield
Motorcycle, hence he demanded from her to bring
Rs.1,00,000/- from her mother. Her mother gave
Rs.60,000/- to the mother of the petitioner. The baby
shower was held at Aurangabad. At that time, mother of
the petitioner demanded moneys to purchase a car for the
petitioner. On refusal of mother of respondent, the
mother of the petitioner informed her mother that the
delivery and naming ceremony function will not be held at
Aurangabad and the mother of respondent will have to
spend for the function. The respondent delivered a baby
boy on 05.12.2013. The mother of respondent gifted all
gold and silver ornaments to the baby boy. She spent
Rs.1.5 lacs to 2.3 lacs. Then respondent returned to her
matrimonial house. The mother of the petitioner told the
respondent that all the jewelery she would keep in the
locker and accordingly had taken jewelry from her and
till date all the jewelery is in her custody.

I] According to the respondent, the petitioner then
demanded Rs.75,000/- from her mother to purchase a big
LED TV and her mother gave Rs.25,000/- as she could not

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give the entire amount. The petitioner has vices of
smoking, eating tobbaco and drinking alcohol. He used to
return home late on 02.00 am under influence of liquor
and pick up fights with her on any issue and beat her.

J] Further it is the case of the respondent that on
05.01.2016 there was first wedding anniversary and as the
petitioner did not return till 10.00 pm she inquired to
his parents. Father of the petitioner abused her and
drove her out of the house by pulling her hair. Her
mobile was also snatched away. On 10.01.2016, she lodged
a police complaint being N.C.No.26/2016 against the
petitioner and his relatives. She informed her mother
about it. Her mother came to Aurangabad. Mother of
petitioner assured her mother that the petitioner and
respondent would reside separately from them in a rented
premises and the petitioner would stop consuming alcohol.
Then they started residing in rented premises at
Garkheda, Aurangabad.

K] Thereafter, for 2 to 3 months the petitioner
behaved properly. The visits of the parents of the
petitioner were frequent. Thereafter, there were fighting
for no-reason and petitioner started abusing her. The
petitioner was not giving her monies for admission of the

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son. She had to take Rs.10,000/- from her mother to get
admission of son in July, 2016. She demanded her jewelry
from the petitioner, but he avoided to bring the same. On
29.06.2016 when there was death anniversary of her father
at midnight 12.30 hours the petitioner came house under
the influence of liquor. When she inquired to him about
her jewelery, he got angry and told her that his mother
would not give jewelry and beat her. He beat on her left
ear. He was leaving home alongwith minor son. He tried to
throttle her, hence she started screaming. On hearing her
screams, their landlord came out and rescued her from the
petitioner. Therefore, she lodged the complaint being NC
No.1750/2016. Since then she is residing with her mother.
Thereafter, she made efforts to return to matrimonial
house, but the petitioner and his relatives have refused
to accept her. Therefore, on 03.08.2016 she filed a
police complaint against the petitioner and his relatives
and offence punishable under Section 498-A of the IPC was
registered. Since then she is residing in the rented
premises. The petitioner has deserted her and has filed
this false petition. She prayed to dismiss the same.

L. Learned Principal Judge of the Family Court
framed following two issues at Exh.14.

1. Whether the petitioner proves that respondent has, after

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solemnization of the marriage, treated the petitioner with
cruelty?

2. Whether the petitioner is entitled to a decree of divorce?

M. On behalf of the petitioner, in evidence he
produced his affidavit at Exh.16 and relied upon certain
documents which would be referred later on and on behalf
of respondent in evidence, she has produced her affidavit
at Exh.21 and she also relied upon certain documents.
Considering the evidence adduced by the parties, the
trial Court held that the petitioner has proved that the
respondent has after solemnization of the marriage
treated the petitioner with cruelty and further held that
the petitioner is entitled to a decree of divorce. Thus,
on answering both above referred issue Nos.1 and 2 in
affirmative the Principal Judge, Family Court, Aurangabad
by the judgment and order dated 11.08.2017 allowed the
petition and passed a decree of divorce directing that
the marriage solemnized between the petitioner and the
respondent on 05.01.2013 is dissolved by a decree of
divorce under Section 13 (1) (i-a) of the Hindu Marriage
Act from the date of said order.

3. Being aggrieved by the aforesaid decree of
divorce, the respondent wife has filed this appeal on

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several grounds mentioned in the appeal and mainly on the
ground that the trial Court has wrongly held that she
has treated the petitioner with cruelty. She has prayed
to set aside the impugned decree by allowing the appeal.

4. We have heard learned Advocates appearing for
the petitioner and respondent. We have also gone through
the written notes of argument submitted on behalf of the
respondent-wife. With the assistance of learned Advocates
we have perused the original record i.e. pleadings of the
parties and evidence adduced by them in support of their
respective contentions and impugned judgment.

5. Learned Advocate appearing for the respondent-
wife submitted that the trial Court has considered single
incident dated 29.06.2016 which is not sufficient to hold
that the respondent has caused cruelty to the petitioner.
However, the trial Court has only on the basis of said
incident held that the respondent has caused cruelty to
the petitioner and granted decree for divorce in favour
of the petitioner-husband. It is submitted that the
evidence adduced by the petitioner-husband in support of
his allegations of cruelty in the form of N.C. lodged by
the petitioner against the respondent is not proved by
the petitioner. The trail Court has wrongly relied upon

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the evidence which is not properly proved. It is
submitted that in matrimonial life, uttering of some
words, here and there, by wife, itself may not be treated
as an act of cruelty and cannot be treated as a ground
for dissolution of the marriage. Further, it is submitted
that relationship between the husband and wife cannot be
allowed to be severed on the grounds/incidents which are
ordinary wear and tear of matrimonial life. Thus, the
learned Advocate for the respondent-wife prayed to set
aside the impugned decree. To support his submissions the
learned Advocate has relied upon the decisions of the
Division Bench of this Court in the case of Manish
Satpal Agarwal Vs Sou. Dolly Manish Agarwal reported in
2009(6)MH.L.J.755 and in the case of Latesh Subhash
Kadam Vs Neeshal Latesh Kadam reported in 2010(5)ALL MR

318.

6. On the other hand learned Advocate appearing for
the petitioner-husband submitted that the evidence
whatever adduced by the petitioner is sufficient to state
that the petitioner has proved that the respondent has
caused cruelty to him and therefore, the petitioner is
entitled to divorce on the ground of cruelty. It is
submitted that the acts of the respondent alleged in the
petition certainly amount to mental cruelty and

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therefore, there is no reason to interfere with the
impugned decree. To support his submissions the learned
Advocate appearing for the petitioner has relied upon the
following decisions:

a) In Samar Ghosh Vs Jaya Ghosh reported in
2007(4)Supreme Court Cases 511 in paragraph Nos.40,97 and
99 the Hon’ble Supreme Court has observed as under:-

“40. The term “mental cruelty” has been defined in Blacks’s Law
Dictionary (8th Edn.,2004) as under:

“Mental cruelty- As a ground for divorce, one spouse’s
course of conduct (not involving actual violence) that creates
such anguish that it endangers the life, physical health, or mental
health of the other spouse.”

97. This Court in Naveen Kohli v. Neelu Kohli dealt with
the similar issues in detail. Those observations incorporated in
SCC paras 74 to 79 are reiterated in the succeeding paragraphs:
(SCC pp.579-80)
“74. We have been principally impressed by the
consideration that once the marriage has broken down beyond
repair, it would be unrealistic for the law not to take notice of
that fact, and it would be harmful to society and injurious to the
interests of the parties. Where there has been a long period of
continous separation, it may fairly be surmised that the
matrimonial bond is beyond repair. The marriage becomes a
fiction, though supported by a legal tie. By refusing to sever that
tie the law in such cases does not serve the sanctity of marriage;
on the contrary, it shows scant regard for the feelings and
emotions of the parties.

75. Public interest demands not only that the married
status should as far as possible, as long as possible, and whenever
possible, be maintained, but where a marriage has been wrecked
beyond the hope of salvage, public interest lies in the recognition

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of that fact.

76. Since there is no acceptable way in which a spouse can
be compelled to resume life with the consort, nothing is gained by
trying to keep the parties tied forever to a marriage that in fact
has ceased to exit.

77. Some jurists have also expressed their apprehension for
introduction of irretrievable breakdown of marriage as a ground
for grant of the decree of divorce. In their opinion, such an
amendment in the Act would put human ingenuity at a premium
and throw wide open the doors to litigation, and will create more
problems than are sought to be solved.

78. The other majority view, which is shared by most
jurists, according to the Law Commission Report, is that human
life has a short span and situations causing misery cannot be
allowed to continue indefinitely. A halt has to be called at some
stage. Law cannot turn a blind eye to such situations,nor can it
decline to give adequate response to the necessities arising
therefrom.

79. When we carefully evaluate the judgment of the High
Court and scrutinies its findings in the background of the facts
and circumstances of this case, then it becomes obvious that the
approach adopted by the High Court in deciding this matter is far
from satisfactory.”

99. Human mind is extremely complex and human
behavior is equally complicated. Similarly human ingenuity has
no bound, therefore, to assimilate the entire human behavior in
one definition is almost impossible. What is cruelty in one case
may not amount to cruelty in other case. The concept of cruelty
differs from person to person depending upon his upbringing,
level of sensitivity, educational, family and cultural background,
financial position, social status, customs, traditions, religious
beliefs, human values and their value system.”

b) In the case of Narendra Vs K. Meena reported in 2016
ALL SCR 2113 it was held that persistent effort of wife
to constrain husband to be separated from his parents,

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without any justifiable reason, would be torturous for
husband, same constitutes an act of cruelty on husband.
In the said case wife locked herself in bathroom and
poured kerosene on herself so as to commit suicide. She
was saved with the help of neighbors. Had she been
successful in her attempt, husband would have suffered
for entire life due to legal provisions. It was held that
only this one event was sufficient for husband to get
decree of divorce on ground of cruelty.

c) In the case of K. Shrinivas Rao Vs D.A.Deepa
reported in 2013 (3) MH.L.J.85 the marriage between
appellant and respondent-wife was solemnized in 1999,
unfortunately on the very next day dispute arose between
the elders on both sides, resulting in their abusing each
other and hurling chappals at each other. Consequently,
the couple got separated without consummation of the
marriage and started living separately, from the third
day itself. Respondent-wife filed criminal complaint
with Women Cell, pertaining to dowry charges. Escalated
acrimony led to complaints and counter complaints,
followed by petition for restitution of conjugal rights
by respondent-wife, counter-blasted with a claim for
dissolution of marriage by appellant-husband on the
ground of cruelty and desertion. The trial Court

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dismissed the petition of respondent-wife, while allowed
divorce petition filed by appellant-husband, with a
direction to repay Rs.80,000/- to his father-in-law
alongwith interest at 8% p.a. from the date of marriage
till payment. High Court while allowing appeal of
respondent-wife, set-aside decree of divorce granted in
favour of appellant-husband, holding that, finding of
family Court that lodging a complaint with the police
against appellant-husband amounts to cruelty is perverse
because it is no ground for divorce under H.M. Act, 1955,
besides, High Court recorded certain other observation.
As held, respondent-wife has caused by her conduct mental
cruelty to appellant-husband and marriage has
irretrievably broken down. Dissolution of marriage will
relieve both sides of pains and anguish. In Supreme
Court, respondent-wife had expressed that she wants to go
back to appellant, but that is not possible now.
Appellant-husband is not willing to take her back. Even
if decree of divorce is refused to husband, there are
hardly any chances of respondent wife leading a hapy life
with appellant, because a lot of bitterness is created by
her own conduct. Decree of divorce allowed, however,
subject to payment of Rs.15 lakh as and by way of
permanent alimony to respondent-wife. Impugned order was
set aside.

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7. In view of the submissions made on behalf of the
parties and controversy between them, following points
arise for our determination :

i. Whether it is proved by the petitioner that the
respondent-wife treated him with cruelty?
ii. Whether the petitioner is entitled to decree of
divorce?

8. The facts in respect of which there is no
dispute are that the marriage between the petitioner and
respondent-wife was solmenized on 05.01.2013 according to
the Hindu Vedic Rites. After marriage respondent started
residing with the petitioner with his joint family
consisting of himself and his parents at Aurangabad.
There is one son born on 05.12.2013 to the respondent
from the said wedlock who is in the custody of the
respondent/mother. Since February, 2016, the petitioner
and respondent started residing separately from the
parents of the petitioner at Garkheda Aurangabad.
Petitioner is only the son to his parents and so is the
case with respondent. Respondent is residing with her
mother at Pimpari Chinchwad, Pune with her son.

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9. According to the petitioner-husband, the
respondent caused him mental and physical cruelty and the
grounds/acts of cruelty attributed to the respondent-wife
by the petitioner are thus:

1. After the marriage on 05.01.2013 within 4-5
months the respondent on some ground or other
started taunting parents of the petitioner and pick-
up the fight with them.

2. The respondent being short tempered used to
insult the petitioner in presence of his relatives,
friends and guests.

3. The respondent used to demand flat,
refrigerator, TV and car and the petitioner could
not fulfill the said demand.

4. On 29.06.2016 in the night the respondent
quarreled with the petitioner and caused nail
injuries on his neck and chest on hitting him and
therefore the petitioner lodged complaint on
30.06.2016 in the police station.

5. Even after residing separately from the parents
of the petitioner in February, 2016, the respondent
used to threaten that she would send the petitioner
and his parents to jail by filing police complaint
as her mother is a criminal lawyer.

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10. To prove aforesaid grounds or acts of the
respondent which have allegedly caused cruelty to the
petitioner, the petitioner has mainly relied upon his
sole oral evidence and documentary evidence which would
be referred later at the appropriate stage. In the first
place we will deal with the ground Nos. 1 to 3. In his
evidence at Exh.16 the petitioner has stated about the
said grounds as per the contentions in the petition.

Except his uncorroborated testimony in respect of conduct
of the respondent in respect of the said ground Nos. 1 to
3, the petitioner has adduced no evidence. So also, his
pleading and evidence in respect of the said ground Nos.
1 to 3 and allegations made therein, is vague. Therefore,
uncorroborated evidence of the petitioner that the
respondent started taunting his parents and pick-up a
fight after 4 to 5 months of marriage, that being short
tempered respondent used to insult him in presence of his
relatives etc. as alleged and that she used to demand a
flat, refrigerator etc and harassed him, is not
believable. The learned Judge of the trial Court
referring the above referred ground Nos. 1 to 3 and
evidence held that said grounds as well as evidence are
vague and therefore, declined to accept the said grounds
which allegedly caused mental cruelty to the petitioner

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as observed in para No.36 of the impugned judgment. We
find no fault with the said findings of the learned Judge
of the trial Court in not accepting the aforesaid ground
Nos. 1 to 3. The petitioner has not filed cross-objection
in the appeal challenging the said findings of the trial
Court in not accepting the aforesaid ground Nos. 1 to 3.

11. Now coming to the ground No. 4 of allegedly
causing cruelty by the respondent-wife to the petitioner-
husband, the petitioner has deposed that on 29.06.2016 he
had come to the house in the night at about 11.00
o’clock. He found that respondent had called pizzas in
the house and on that day there was death anniversary of
father of respondent. He asked respondent how pizzas were
called and she got angry. She rushed at him and started
beating him with kicks and blows. She scratched him with
her nails. One of the blows hit on his eye and the same
turned black. He sustained injuries on his neck and chest
of scratching. Since the incident occurred at night, on
the next day i.e. on 30.06.2016 he went to the police
station and lodged complaint against respondent and CR
No.1754/2016 dated 02.07.2016 came to be registered.
Thereafter, police sent him in Ghati Hospital for medical
checkup. He stated that after the said incident he is
sustaining mental and physical harassment and there is

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danger to his life from the respondent. He also stated
that in the night after the quarrel, the respondent had
driven him out of the house.

12. In the cross-examination on behalf of
respondent-wife, the petitioner has admitted that on
29.06.2016 it was death anniversary of father of
respondent. He denied that he went home under the
influence of liquor at midnight at 12.30 hours. He denied
that at that time respondent demanded her gold jewellery
from him. He further admitted that the respondent
demanded gold jewellery from him. He denied that because
she demanded gold jewellery he got angry and beat her. He
denied that he throttled her at that time and hence the
respondent screamed, the land lord arrived and tried to
separate them. He denied that the respondent complained
at Jawahar Nagar Police Station and Mukundwadi Police
Station. He denied that thereafter respondent went away
to her parents house. He admitted that an offence under
Section 498-A of the IPC has been registered against him
in Jawahar Nagar Police Station. He denied that he is
deposing false that respondent has treated him with
cruelty and that he has filed false affidavit. From the
above evidence one thing is certain that on 29.06.2016
the petitioner and the respondent were residing at

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Aurangabad separately from the parents of the petitioner.

13. In the course of the cross-examination of the
petitioner, his evidence of giving fist and kick blows to
him by the respondent in the night on 29.06.2016 and
causing nail injuries to him has not been specifically
challenged. As referred above there was suggestion on
behalf of the respondent-wife that in the above said
night the petitioner assaulted her when she demanded her
gold jewelery from him. In such circumstances, before
accepting or rejecting the evidence of the petitioner in
respect of nail injuries to him allegedly caused by the
respondent, it is necessary to refer the evidence of
respondent and documentary evidence in the form of
complaint lodged by the petitioner in the police station
and medical papers, which documents are wrongly
considered by the trial Court, though they are not
proved, as argued by the learned Advocate for the
respondent.

14. Before considering the evidence of respondent,
it would be necessary to consider, whether the petitioner
has proved that he was really sent to Ghati Hospital for
medical check-up and whether alleged injuries were caused
to him in the alleged incident dated 29.06.2016 in the

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night by the respondent, in view of the fact that as per
the suggestions given to the petitioner on behalf of
respondent, the petitioner has filed false affidavit
(Exh.16) in the evidence and in view of the argument
advanced by the learned Advocate appearing for the
respondent that the documents in this respect are not
proved, but wrongly considered by the trial Court.

15. The petitioner has deposed that he has filed
complaint in the police station on 30.06.2016 and he was
given office copy of the said complaint. The copy of the
said complaint is produced on record, but the petitioner
has not proved the said copy. It is seen that Exh.26 is
the copy of the letter given by the Police Station
Officer, Mukumdwadi to the Medical Officer, Ghati
Hospital, Aurangabad. Date on the said letter is 30 th. It
is mentioned in the letter that the petitioner was sent
to the said hospital for treatment as he sustained
beating on his left eye and chest and he was beaten. It
appears that the said letter is exhibited in the cross-
examination of the petitioner on behalf of respondent, as
it was shown to the petitioner. Simply because the said
letter was shown to the petitioner or referred in the
course of his cross-examination, it cannot be said that
it was properly proved by the petitioner. The petitioner

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has not examined the police officer to prove the contents
of the letter (Exh.26).

16. So also, the petitioner has produced photo copy
(two pages) of the case paper dated 30.06.2016 in respect
of the medical check-up of the petitioner and his
treatment in Ghati Hopsital, Aurangabad. In his evidence
the petitioner has not stated about the said copy of the
case paper. So also, he has not proved the copy of the
said case paper by examining the casualty Medical Officer
who attended the petitioner on 30.06.2016 at 11.15 am.
Therefore, the said copy of the case paper cannot be read
in evidence to state that there was assault on the
petitioner by the respondent. Even, if, it is read in
evidence, it does not show that in the night on
29.06.2016, in his house, petitioner was assaulted by the
respondent-wife. Therefore, uncorroborated evidence of
the petitioner is not sufficient to state that the
petitioner has proved the incident of assault on him by
the respondent in the night on 29.06.2016, and causing
him injuries as deposed by him.

17. There is a copy of the FIR registered in
Mukumdwadi Police Station in respect of incident, which
shows that the said FIR was registered, on the compliant

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of the petitioner against the respondent, for the offence
punishable under Section 323,504 and 506 of the IPC. This
copy of the FIR is also not proved by the petitioner.
Therefore, same cannot be considered. Even, if, the same
is considered, it does not prove the allegation of the
petitioner that he was assaulted by the respondent in the
night on 29.06.2016 and caused him nail injuries. There
is also copy of NC case registered against the respondent
in Mukundwadi Police Station, on the complaint of
petitioner in respect of incident dated 29.06.2016, which
took place in the night at 23.10 hours. The petitioner
has not specifically stated about this copy of NC case
and as such the same is also not proved. Therefore, the
same cannot be considered. Even, if, the same is
considered, it does not show that respondent caused
injuries to the petitioner in the night on 29.06.2016, as
alleged. In the above circumstances, we find substance in
the argument advanced by the learned Advocate appearing
for the respondent-wife that the trial Court has wrongly
relied upon the evidence, which is not properly proved by
the petitioner. Therefore, the oral evidence of the
petitioner as well as the documentary evidence referred
to above, which is not proved by the petitioner, is not
sufficient to infer that the petitioner sustained
injuries in the incident, which took place on 29.06.2016,

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in the night in the alleged assault by the respondent.

18. Now coming to the evidence (Exh.23) of the
respondent-wife it shows that after marriage the
petitioner, his parents and sister have treated her
properly only for one month. She deposed that house of
the petitioner was two-storey. Father of the petitioner
was closing the door of the first floor and used to open
the same at 4.00 pm. She stated that while she was
pregnant, she was not allowed to take food, besides two
times meal. She was harassed by the petitioner and his
parents and they were abusing her. She has also stated
about demand of Rs.75,000/- by the petitioner. She stated
that the petitioner was addicted to liquor, cigarette and
tobacco and used to come to the house in the night at
2.00 hours under the influence of liquor since the
marriage. Above said evidence of the respondent is also
not properly challenged on behalf of the petitioner in
the course of her cross-examination. She also stated that
she did not file complaint with police in respect of
above said conduct of the petitioner.

19. As regards the incident in the night on
29.06.2016, the respondent has stated that on that day
there was death anniversary of her father and the

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petitioner came to house at 12.30 in the night under the
influence of liquor. When she asked him about ornaments,
he was annoyed and said that his mother would not return
the ornaments to her and that she should do whatever she
wants to do and started beating and abusing her. At that
time the petitioner beat on her ear and he started
proceeding saying that he would take away the child but
he was unable to balance himself as he had consumed
liquor. At that time, he started throttling her. She
shouted loudly, therefore, her land lord and wife of land
lord had come and they had rescued her. Therefore, she
filed NC No.1750/2016 in the police station and since
then she is residing at her parental house with her son.
There is also Crime No.259/2016 for the offence under
Section 498-A of the IPC registered against the
petitioner by her.

20. In the cross-examination respondent has denied
that her behavior with land lord was also arrogant and
hence she shifted to Pune in May, 2017. She denied that
she harassed the petitioner and his parents. She filed
proceeding under the provision of the Domestic Violence
Act and under Section 498-A of the IPC. She stated that
she is still ready to resume cohabitation. She denied
that she had mentally, physically and economically

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harassed the petitioner. Her evidence that the petitioner
started throttling her and therefore, when she shouted,
the land lord and his wife had come, has not been
specifically challenged in the course of her cross-
examination. It is true that respondent has also not
examined her land lord or wife of land lord to prove the
fact that really in the night on 29.06.2016 the
respondent made cry when she was assaulted by the
petitioner and on hearing cry the land lord had come to
rescue her or land lord had really rescued her from the
petitioner. Be that as it may, the fact remains that both
the petitioner and respondent have filed complaint
against each other in respect of incident dated
29.06.2016. So also, there is crime registered against
the petitioner and his parents for the offence punishable
under Section 498-A of the IPC on the complaint of the
respondent, besides NC case against them. In such
circumstances, it can be said that the petitioner and the
respondent are making allegations against each other and
as outcome of the said allegations some incident in the
nature of quarrel between them has taken place on
29.06.2016, in the night. But, for the reasons discussed
herein above the said solitary incident when other
allegations i.e. ground Nos. 1 to 3 of cruelty refereed
earlier are not proved by the petitioner and not accepted

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by the trial Court, is not sufficient to hold that the
respondent has caused physical cruelty to the petitioner.

21. As regards ground No.5 that even after the
petitioner and respondent started residing separately
from the parents of the petitioner in the February, 2016,
the respondent used to threaten that she would send the
petitioner and his parents to jail by filing false
complaint as her mother is criminal lawyer, is concerned
the petitioner has of course stated in consonance with
this ground, in his affidavit (Exh.16). In the cross-
examination on behalf of respondent, the said evidence
has not been specifically challenged. He has denied that
he and his parents threatened the respondent to kill her.
He admits that the respondent had filed a police
complaint against him, but he does not remember that date
of said complaint was 10.01.2016. This shows that the
respondent filed complaint against the petitioner and his
parents on threats given to her. The petitioner has not
specifically stated about the date and day when the
respondent threatened to send him and his parents in
jail. So also, there is nothing on record to show that he
filed complaint in respect of said threat or threats
given by respondent, with police or in Court. In such
circumstances, vague evidence of the petitioner regarding

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threat given to him and his parents by the respondent
about sending them in jail is not believable. Therefore,
ground No.5 as above is not proved by the petitioner.
Therefore, it cannot be said that the respondent
threatened as above to the petitioner and his parents and
said amounts cruelty to him. In the above circumstances,
it cannot be said that respondent has caused physical or
mental cruelty to the petitioner, particularly when she
cohabited with the petitioner, she has begotten a son
from the wedlock with the petitioner and she resided with
the petitioner nearly for three years after the marriage
and that still she is willing to resume cohabitation with
the petitioner.

22. For the reasons discussed above, we hold that
the petitioner has failed to prove the ground Nos.4 and 5
referred to above attributed to the respondent which have
allegedly caused cruelty to the petitioner on which
ground the trial Court held that the respondent caused
cruelty to the petitioner. In this view of the matter,
reasons assigned by the trial Court in the paragraphs
No.52 to 57 to arrive at a conclusion that the respondent
caused cruelty to the petitioner and particularly the
reasons that very fact that the petitioner was sent for
medical examination by the police and the medical paper

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(Exh.26) reveals that he has been physically abused and
that this act on the part of the respondent per-se was
sufficient enough to hold that she has physically ill-
treated the petitioner, are not proper and sufficient to
hold that the respondent caused cruelty to the
petitioner. Therefore, the finding of the trial Court
based on the said reasons that the petitioner has proved
that the respondent has caused cruelty to him, is not
sustainable and same is liable to be quashed and set
aside.

23. In the above circumstances, the ratio laid in
the decisions in the case of Samar Ghosh (supra),
Narendra (supra) and K. Shrinivas Rao (supra) relied upon
by the learned Advocate appearing for the petitioner-
husband, are not applicable to this case to state that
the respondent caused mental cruelty to the petitioner as
the facts of the present case are different from the
facts of the said decisions.

24. We, therefore, answer both the point Nos. 1 and
2 formulated by us, in the negative and hold that the
petitioner is not entitled to divorce on the ground of
cruelty under Section 13(1)(i-a) of the Hindu Marriage
Act, 1955. Therefore, the impugned decree is liable to be

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set aside by allowing the appeal, leaving the parties to
bear their own costs in the circumstances present in the
case. In the result following order is passed.

O R D E R

1. The appeal is allowed.

2. The impugned decree dated 11.08.2017 of divorce
is set aside and the petition for divorce is
dismissed.

3. Parties to bear their own costs.

4. Decree be drawn accordingly.

5. In view of disposal of the appeal, Civil
Application No.12452 of 2017 does not survive and
the same is disposed of.

[S.M.GAVHANE,J.] [S.S.SHINDE,J.]

VishalK/fca36.17

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