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Sou Sushma W/O Gajanan Chikhalwar vs Gajanan S/O Narayanrao … on 24 August, 2018

SA139.12nSA332.17.odt 1/14

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.

SECOND APPEAL NO. 139 OF 2012

APPELLANT: Sou. Sushma W/o Gajanan Chikhalwar,
Aged about 30 years, Occupation-
Household,
R/o C/o Shri Istari Ankutir Padgilwar,
M. G. Road, Ghatanji, District Yavatmal.

-VERSUS-

RESPONDENT: Gajanan S/o Narayanrao Chikhalwar,
Aged about 35 years, Occupation-
Service, Resident of Gurudeo Ward,
Ghatanji, District Yavatmal.

Shri M. I. Dhatrak, Advocate for the appellant.
Shri A. S. Dhore, Advocate for the respondent.

SECOND APPEAL NO. 332 OF 2017

APPELLANT: Sou. Sushma W/o Gajanan Chikalwar,
aged about 35 years, Occupation-
Service, Resident of C/o Istari
Padgilwar, Jesis Colony, Ghatanji. Tq.
Ghatanji, Dist. Yavatmal, presently
resident of Karvianegaon, Tq.
Shrivardhan, Dist. Raigad (Alibag)
(Original Respondent)

-VERSUS-

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RESPONDENT: Gajanan Narayan Chikalwar, aged about
41 years, Occupation-Service, R/o
Gurudev Ward, Ghati, Tq. Ghatanji, Dist.
Yavatmal.
(Original Petitioner)

Shri M. I. Dhatrak, Advocate for the appellant.
Shri A. S. Dhore, Advocate for the respondent.

CORAM: A.S. CHANDURKAR, J.

DATE ON WHICH SUBMISSIONS WERE HEARD: 23-07-2018
DATE ON WHICH JUDGMENT IS PRONOUNCED: 24-08-2018

ORAL JUDGMENT :

1. Since both these appeals challenge the adjudication of

the matrimonial disputes between the parties they are being

decided by this common judgment.

2. The appellant was married with the respondent on

24-5-2006. It is the case of the appellant that when the marriage

was solemnized, her parents had paid an amount of Rs.1,50,000/-

to the respondent as amount of dowry and had also given gold

ornaments worth Rs.20,000/-. After a few days of the marriage,

according to the appellant, the respondent and his mother started

raising disputes with her and also started ill-treating her. As the

appellant was pregnant she on the advice of her Doctor was sent to

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her parental home on 14-12-2006. On 7-2-2007, the appellant

received a legal notice from the respondent calling upon her to

return to the matrimonial home. The appellant replied to that

notice and stated that she was advised to take rest. She stayed

there even after the birth of her daughter on 17-5-2007. After the

birth of the daughter the respondent and his relatives did not come

to the parental house of the appellant to take her back. She

received a message from the respondent that she should give him

divorce. Hence on 25-8-2008 the appellant filed a petition under

Section 9 of the Hindu Marriage Act, 1955 (for short, the said Act)

for restitution of conjugal rights.

3. The respondent in his written statement denied the

allegations as leveled by the appellant. It was denied that any

amount of dowry was demanded and received by him. The

allegations of ill-treatment were also denied. It was pleaded that

the appellant on her own had gone to her parental house and that

despite issuing the notice to her, she did not return. It was stated

that the respondent was willing to cohabit with the appellant, but

she was not ready to do so. It was further pleaded that the

respondent was serving at Jarud since August, 2005 and he had to

reside there. However, the appellant was not inclined to reside

with him in the small village. It was thus pleaded that the

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appellant had filed a false petition for restitution of conjugal

rights.

4. The trial Court after considering the evidence on

record held that the appellant had failed to prove that the

respondent had withdrawn from her society without reasonable

cause. By judgment dated 31-8-2009 the petition as filed came to

be dismissed. The appellate Court by its judgment dated 6-8-2011

dismissed the appeal. Second Appeal No.139/2012 has been filed

challenging the aforesaid adjudication. While admitting the second

appeal, the following substantial question of law was framed:

Whether the appellant has rightly proved the
reasonable excuse for withdrawal of the society
of respondent and the burden is shifted on the
respondent as per Section 9 of Hindu Marriage
Act, 1955 as in the cross-examination of the
respondent/husband he in clear terms states that
he is ready to take the appellant subject to
condition of withdrawal of criminal case and this
aspect of the matter is rightly considered by the
court below or not?

5. The respondent on the other hand filed a petition

under Section 13(1)(ia) and (ib) of the said Act seeking divorce on

the grounds of cruelty and desertion by the appellant. It was the

case of the respondent that since their marriage, the appellant was

not willing to reside with the respondent and she used to quarrel

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with him and his mother on flimsy grounds. The appellant had left

his company in October, 2006 without giving prior intimation.

She had thereafter filed proceedings for grant of maintenance

under Section 125 of the Code of Criminal Procedure, 1973. It

was also pleaded that in the proceedings for restitution of conjugal

rights, the appellant had put certain conditions on the respondent

stating that unless those conditions were fulfilled she would not

reside with him.

6. In the reply filed by the appellant, the allegations as

made were denied. It was stated that the appellant had gone to

her parents house on account of her ill health. It was the

respondent and his mother who used to quarrel with her. The

respondent was having an affair with another girl but as dowry

was not given as per his demand, that marriage could not

materialize.

7. The trial Court after considering the evidence on

record held that the respondent had proved that the appellant had

treated her with cruelty. It further held that the respondent had

proved that the appellant had deserted him without any

reasonable and bonafide cause. By judgment dated 9-1-2014, the

petition was allowed and the marriage was dissolved by passing a

decree for divorce. The appellate Court by its judgment dated

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15-3-2017 dismissed the appeal filed by the appellant. That

adjudication is challenged in Second Appeal No.332/2017. While

admitting the appeal, the following substantial question of law was

framed:

Whether the Courts below relying on the
provisions of Section 13(1)(ia) of the Hindu
Marriage Act, 1955 has rightly held that the action
on the part of the appellant amounts cruelty, even
though both the proceedings (U/s 498A of I.P.C.
and U/s 125 of Cr. P.C.) are pending before this
Court?

8. I have heard the learned Counsel for the parties at

length and with their assistance I have perused the records of the

case.

9. Shri M. I. Dhatrak, learned Counsel for the appellant –

wife submitted that the Courts committed an error in dismissing

the petition for restitution of conjugal rights and granting divorce

on the ground of cruelty and desertion. Referring to the evidence

on record, it was submitted that it was the respondent who had

sent the appellant to her parental house during her pregnancy.

After the daughter was born on 17-5-2007, the respondent had

refused to take her back to the matrimonial house. Referring to

the evidence on record, it was submitted that the respondent had

put a condition that only if the appellant withdrew the cases filed

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against him, he was ready to take her back to the matrimonial

house. The apprehension in the mind of the appellant was justified

in view of the ill-treatment given to her by the respondent and his

family members. It was submitted that the appellant was justified

at that point of time in calling upon the respondent to execute a

bond with regard to his behavior and unless that was done, she

was not ready to return to the company of the appellant. The

apprehension in the mind of the appellant was justified in view of

the earlier ill-treatment. The Courts erred in not considering the

matter from the proper perspective while refusing to allow the

petition for restitution of conjugal rights. It was thus submitted

that the petition for restitution of conjugal right deserves to be

allowed.

As regards the decree for divorce, it was submitted that

the appellant was always willing to reside with the respondent

subject to good behavior on the part of the respondent. Necessary

evidence in that regard were placed on record. Referring to the

deposition of the respondent in the said proceedings, it was

submitted that the evidence indicated that it was the respondent

who was not willing to take back the appellant. By seeking

restitution of conjugal rights, the appellant had indicated her

willingness to continue the matrimonial ties with the respondent.

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In that regard, the learned Counsel placed reliance on the decision

in Sunita Rajendra Nikalje vs. Rajendra Eknath Nikalje 1996(1)

Mh.L.J. 572. It was thus, submitted that in absence of any

evidence either with regard to cruelty or desertion, no decree for

divorce could have been passed.

10. Shri A. S. Dhore, learned Counsel for the respondent –

husband supported the impugned judgments. As regards

restitution of conjugal rights, it was submitted that the appellant

on her own had left the matrimonial house and despite notice

given by the respondent on 7-2-2007, reply was given making

various allegations. After the birth of the child, the respondent

intended to bring back the appellant, but she had put various

conditions which were unreasonable and the same indicated that

she was not ready to join his company. The case as pleaded by the

appellant was not corroborated and there was no evidence that on

medical advice the appellant had gone to reside with her parents.

It was submitted that the finding recorded in that regard was

legally correct not requiring any interference.

As regards the decree for divorce, it was submitted that

the appellant had put unreasonable conditions for returning to the

matrimonial home. The appellant wanted a bond to be executed

by the respondent in presence of five persons for ensuring his good

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behavior. In absence of any evidence regarding cruelty on his part,

it was pleaded that this demand made by the appellant was

unjustified. As the respondent was employed at Jarud and the

appellant was serving at Ghatanji, the appellant did not desire to

reside with him. The appellant had filed a complaint under Section

498-A of the Indian Penal Code after about four years of leaving

the respondent’s company. The said proceedings under Section

498-A of the Penal Code had been dismissed. This also indicated

that the ground of cruelty could not be proved by the appellant. It

was thus submitted that the desertion of the respondent by the

appellant had been duly proved since August, 2006 and therefore,

the decree as passed for divorce did not call for any interference.

The learned Counsel placed reliance on the decisions in Sandip

S/o Gopinath Bhalke vs. Aruna w/o Sandip Bhalke 2009(6) Mh.L.J.

961, Sangita d/o Arvindrao Deshmukh vs. State of Maharashtra

2009(6) Mh.L.J. 968 and Ravi Kumar Vs, Julmi Devi 2010(3) ALL

MR 977.

11. On hearing the learned Counsel for the parties and on

perusing the record, it is found that on the material available on

record, the Courts were justified in dismissing the petition for

restitution of conjugal rights and in granting divorce on the

grounds of cruelty and desertion. According to the appellant, on

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account of her pregnancy, she was advised to take complete rest

and hence, the respondent had sent her to her mother’s house.

Though it can be gathered that the appellant would require rest

during her pregnancy, it is the case of the appellant that her health

had deteriorated and therefore, she was advised strictly to take

rest in December, 2006. The appellant has not examined any

doctor in support of her contention that her health had

deteriorated during the period of pregnancy nor has she placed

any documentary evidence on record. The issuance of a legal

notice by the respondent on 7-2-2007 at Exhibit-23 indicates that

the respondent was keen to receive back the appellant with a view

that she should reside at the matrimonial house. In the reply given

by the appellant on 12-2-2007 at Exhibit-24 various allegations

have been made by the appellant alleging ill-treatment at the

instance of the respondent and his mother. The fact remains that

even after the birth of the child on 17-5-2007, the appellant

refused to return back to the matrimonial house. Instead a

condition was put that until a bond was executed by the

respondent promising good behavior in the presence of five senior

members of society, she was not ready to return back. In her cross-

examination at Exhibit-11, she has denied that she was willing to

go with the respondent from the Court to the matrimonial house.

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She also expressed an apprehension that even if the respondent

gave an undertaking before the Court, it was likely that the

respondent would continue to harass her. This conduct indicates

the attitude and unwillingness on the part of the appellant to join

the matrimonial company of the respondent.

12. It is to be noted that the appellant in her deposition in

the proceedings for divorce has deposed at Exhibit-46. She stated

that since 2006 she was residing separately from her husband. She

further stated that she had replied to the notice dated 7-2-2007

that was sent by the respondent. She maintained the allegations

made in the reply sent by her on 12-2-2007. She further stated

that even the allegations made in the complaint filed under

Section 498-A of the Penal Code were correct. The police

complaint leading to those proceedings was made in the year 2009

which indicates that after almost more than three years when the

appellant was residing with her mother, she filed the said

complaint under Section 498-A of the Penal Code. Though there

are no specific pleadings in that regard by the respondent, it is an

admitted position that even that complaint came to be dismissed

by the learned Judicial Magistrate First Class on 16-2-2013 holding

that the prosecution had failed to prove its case. It can thus be

seen that the conduct of the appellant indicates that without

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reasonable cause she had left the company of the respondent. The

allegations made by her in the reply at Exhibit-24 or in the

criminal proceedings have not been duly proved. She is firm on

the fact that those allegations as made were correct. Her

insistence for executing a bond with regard to good behavior in

absence of any evidence regarding the ill-treatment is therefore

misconceived. The allegations as made are therefore, not

substantiated and would therefore amount to cruelty. Even the

allegation as made in the petition for restitution that dowry was

paid has not been further pursued in the present proceedings.

After considering the law as laid down in various decisions cited by

the learned Counsel for the parties, it is found that the Courts have

rightly refused to grant a decree for restitution of conjugal rights.

At the same time, the material on record justifies the decree for

divorce on the ground of cruelty and desertion. Though it is true

that an appeal against the dismissal of the proceedings under

Section 498-A of the Penal Code has been filed, that by itself

would not be sufficient to hold otherwise. The findings as recorded

are based on material evidence on record and the conclusion as

drawn does not deserve to be interfered with.

13. As regards the aspect of desertion, the following

observations in paragraph 16 of the decision in 2015 (1) Mh.L.J.

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107 are relevant. The same are as under:

“16. In the said case, reference was also
made to Lachman Utamchand Kirpalani’s case
wherein it has been held that desertion in its
essence means the intentional permanent
forsaking and abandonment of one spouse by the
other without that other’s consent, and without
reasonable cause. For the offence of desertion so
far as the deserting spouse is concerned, two
essential conditions must be there (1) the factum
of separation, and (2) the intention to bring
cohabitation permanently to an end (animus
deserendi). Similarly two elements are essential so
far as the deserted spouse is concerned: (1) the
absence of consent, and (2) absence of conduct
giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention
aforesaid. For holding desertion as proved the
inference may be drawn from certain facts which
may not in another case be capable of leading to
the same inference; that is to say the facts have to
be viewed as to the purpose which is revealed by
those acts or by conduct and expression of
intention, both anterior and subsequent to the
actual acts of separation.”

The evidence on record and especially the deposition of the

appellant clearly indicates the factum of separation and the

intention to permanently bring the cohabitation to an end. In

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absence of any proof of ill-treatment coupled with the

unsubstantiated allegations made by the appellant, the decree for

restitution of conjugal rights has been rightly refused.

14. Accordingly, the substantial question of law as framed

in Second Appeal No.139/2012 is answered by holding that there

was no reasonable excuse on the part of the appellant to withdraw

from the society of the respondent. The relief of restitution of

conjugal rights has been rightly refused. Similarly, the substantial

question of law as framed in Second Appeal No.332/2017 is

answered by holding that various acts on the part of the appellant

amount to cruelty especially in the light of proceedings under

Section 498-A of the Penal Code being dismissed and proceedings

under Section 125 of the Code being withdrawn by the appellant.

15. As a result of aforesaid, both the Second Appeals stand

dismissed with no order as to costs.

JUDGE
//MULEY//

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