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Judgments of Supreme Court of India and High Courts

Shri. Pravin S/O Bhaskarrao … vs Neeta W/O Pravin Borkute on 26 July, 2018

1 FCA-J-18-17.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR

FAMILY COURT APPEAL NO. 18 OF 2017

Shri Pravin s/o Bhaskarrao Borkute,
Aged about : 55 years, Occ. Business,
R/o Bhaskar Bhagirathi, Plot No.R-20,
Laxmi Nagar, Nagpur
and
Mouza Zadsi,
Tah. Selu, District Wardha. … APPELLANT

V E R S U S

Neeta w/o Pravin Borkute,
Aged about : 49 years,
Occ. Household, R/o 81/2,
Flat No.302, Chauhan Niwas,
Near Mourya Flour Mill,
Bharti Nagar, Kothrud Pune. … RESPONDENT
——————————————————————————————-
Mrs. Jyoti Dharmadhikar, Advocate for appellant.
Shri V. K. Gulhane, Advocate for respondent-sole.
——————————————————————————————-

CORAM:- R. K. DESHPANDE
ARUN D. UPADHYE, JJ.

Date of reserving Judgment
: 12/07/2018
Date of pronouncing Judgment : 26/07/2018

JUDGMENT : (PER ARUN D. UPADHYE, J.)

1. Heard. Admit. The appeal is heard finally by

consent of learned counsel for parties.

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2 FCA-J-18-17.odt

2. Being aggrieved by the Judgment and order dated

09/12/2016 passed by the Principal Judge, Family Court, Nagpur

in Petition No.A-719/2013, the appellant has preferred this

appeal.

The brief facts of the case are as under :-

3. The appellant has filed petition under Section

13(1)(ia) of the Hindu Marriage Act, 1955 for divorce. The

appellant has contended that the respondent is wife and their

marriage was solemnized on 14/06/1983 as per the Hindu Rites.

After marriage, he got admission in Engineering College at Karad

and went there for education purpose. The respondent – wife was

staying with his mother for two years. However, she did not treat

his mother well. He also contended that during cohabitation with

respondent, one son and one daughter were born on 19/08/1986

and 11/09/1988 respectively.

4. The appellant has contended that the respondent

used to deny the paternity of both children. The respondent has

also filed false complaint against him for the offence punishable

under Section 498-A of the I.P.C. and subsequently, withdrawn the

same. According to him, the respondent left his house on

29/07/1995 by executing the settlement deed. It is also contended

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that the respondent has suppressed the fact that she was suffering

from Tuberculosis and also having spectacles and therefore,

claimed decree of divorce.

5. The respondent appeared in the proceedings and

resisted the claim by filing written statement vide Exh.24. She

denied all adverse allegations made against her. On the contrary,

she contended that the appellant had demanded dowry from her

parents. He used to beat her as well as beat to her children. It is

contended that the appellant has forcibly obtained signature on

settlement deed. She further contended that the complaint filed

against her husband was ended in settlement before the Court and

her husband was acquitted. According to her, since November,

2012, she is constrained to live separately with her daughter at

Pune and lastly, it is submitted that the petition be dismissed.

6. After recording evidence in the matter and on

hearing both the sides, the learned Principal Judge, Family Court,

Nagpur has dismissed the petition by its Judgment and order

dated 09/12/2016. The said Judgment is assailed by the appellant

by way of appeal amongst other grounds mentioned in the Memo

of Appeal.

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7. From the aforesaid facts and circumstances of the

case, the following points arise for our consideration and findings

recorded thereon with reasons as under :-

Points Findings
I) Whether the appellant proves that No.
the respondent treated him with
cruelty ?
II) Whether the impugned Judgment No.
requires interference ?
III) What order ? As per final order.

REASONS

8. As to Point Nos.1 and 2 :-

We have heard Mrs. Jyoti Dharmadhikari, learned

counsel for the appellant and Shri Gulhane, learned counsel for

the respondent at length.

9. Mrs. Dharmadhikari, learned counsel for the

appellant vehemently submitted that the appellant has proved

cruelty at the hands of respondent by cogent evidence. The

learned Family Court, Nagpur however, wrongly denied the decree

of divorce on the ground of cruelty and dismissed the petition. She

therefore, submitted that the appeal be allowed and petition filed

by the appellant for divorce be granted.

10. Shri Gulhane, learned counsel for the respondent

has submitted that the appellant has not proved cruelty. The

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complaint under Section 498-A of the I.P.C. was filed in the year

1990 and subsequently, matter was compromised and the

appellant was acquitted. The appellant and respondent, thereafter

resided together upto 22 years and therefore, the said complaint

cannot be considered for cruelty. He further submitted that no

DNA Test was undertaken by the appellant and therefore, there is

no evidence adduced to that effect. The learned Family Court has

rightly dismissed the petition and no interference of this Court is

called for. The appeal, therefore, be dismissed.

11. Considering the submission of respective sides, we

have perused the impugned Judgment as well as evidence

adduced by both the sides. It is not disputed that the marriage of

the appellant and respondent was solemnized on 14/06/1983 as

per Hindu Vedic Rites at Nagpur. It is not disputed that they have

one daughter and one son from the wedlock. The fact that the

respondent has filed criminal complaint under Section 498-A of

the I.P.C. is also not disputed. However, the said complaint is of

the year 1990 and the matter was ended in acquittal before the

Court after compromise between the parties. The contention of the

appellant that the respondent treated him with cruelty by filing

complaint under Section 498-A, cannot be accepted. It is to be

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noted that after filing the complaint, both were resided together

for more than 22 years and therefore, the said ground cannot be

considered for obtaining divorce. The another contention raised by

the appellant that the respondent used to deny the paternity of

both the children and therefore, there was cruelty. So far as this

allegation is concerned except the bare word of the appellant,

there is no evidence on record. The respondent has examined

herself and denied the said contention. DW-2 Ku. Shruti Borkute,

daughter examined by the respondent also supports the contention

of the respondent. In the cross-examination, he has clearly stated

that he has filed the petition on the ground of desertion and there

is no other ground for divorce petition. It shows that there is no

ground of cruelty for obtaining divorce as deposed by him. In the

cross-examination, he also admitted that even after the execution

of settlement vide Exh.35, the respondent cohabited with him.

However, he denied that he has obtained the settlement forcibly.

He also admitted that he has not filed divorce petition on the basis

of said settlement agreement vide Exh.35.

12. Considering the evidence of the appellant, it cannot

be accepted that there was cruelty to him at the hands of

respondent, as alleged by him. The evidence of the appellant

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therefore, does not prove the fact of cruelty and he is not entitled

for divorce on the said ground. The learned Family Court has

appreciated the evidence in a proper perspective and arrived at

right conclusion and therefore, no interference of this Court is

called for. We answer the Point Nos.1 and 2 in the negative and

proceed to pass the following order.

ORDER

1) The appeal is dismissed.

2) No order as to costs.

(Arun D. Upadhye, J.) (R.K. Deshpande, J.)

Choulwar

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