{1} SA 439 of 2010
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 439 OF 2010
WITH
CIVIL APPLICATION NO.9436/2010 IN SA/439/2010
WITH
CIVIL APPLICATION NO.16774/2010 IN SA/439/2010
Vasundhara w/o. Gautam Patare
Age: 38 years, Occu.: Household,
R/o. C/o. Smt.Sunita Ramchandra
Gaikwad, Dhawan Wasti,
Lekha Nagar, Near Tapowan Road,
Pipe Line Road, Savedi,
Ahmednagar. ..Appellant
(Orig. Opponent)
Versus
Gautam s/o. Keshav Patare
Age: 41 years, Occu.: Service,
R/o. Chavani Police Station,
Aurangabad, Dist.Aurangabad. ..Respondent
(Orig. Applicant)
…
Advocate for Appellant : Shri Vinayak Sudhakar Bedre
Advocate for Respondent :Shri Amit S. Deshpande
…
CORAM : P.R.BORA, J.
Reserved On : 13th August, 2018
Pronounced On: 16th October, 2018
JUDGMENT :-
1. The appellant has filed the present appeal against the
Judgment and order passed by District Judge-3 and Additional
Sessions Judge at Ahmednagar in Regular Civil Appeal No.18 of
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2009 decided on 07.04.2010. The appellant had filed the
aforesaid appeal being aggrieved by the Judgment and order
passed in Hindu Marriage Petition No.12 of 2007 by 2 nd Joint Civil
Judge (Senior Division), Ahmednagar on 02.12.2008.
2. The respondent had filed the aforesaid Hindu Marriage
Petition No.12 of 2007 seeking decree of divorce against the
appellant under Section 13(1) of the Hindu Marriage Act, 1955
(hereinafter referred to as ‘the Act’). It was the contention of the
respondent in the said petition that the appellant, without any
sufficient cause, deserted him and subjected him to cruelty by
filing a false criminal case against him and his parents, brothers
under Section 498-A of the Indian Penal Code (IPC) and by filing a
proceeding under Section 97 of the Code of Criminal Procedure
seeking custody of minor son Rohan, and certain other
proceedings.
3. Petition was resisted by the appellant. She denied the
allegations made by the respondent against her and made
counter allegations against the respondent that he, without any
cause, deserted her and the minor son and did not care for their
maintenance. It was also the contention of the appellant that
though son Rohan was having heart disease by birth and huge
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expenses were required to be spent on his treatment, the
respondent did not contribute in the said expenses and never
cared about the health of son Rohan. It was also alleged by her
that the respondent was intending to perform a second marriage.
Allegation of unlawful monetary demands was also raised against
the respondent and his family members.
4. In the Trial Court, the present respondent had deposed
before the Court and had also examined three witnesses. The
respondent had also filed on record the certified copies of the
depositions of the appellant recorded in Miscellaneous Criminal
Application No.285 of 2001 and in R.T.C. No.268 of 2001. In the
meanwhile, the appellant had filed Hindu Marriage Petition
No.246 of 2008 under section 9 of the Act seeking restitution of
conjugal rights. The copy of the said petition was also placed on
record by the respondent. The appellant had also deposed
before the Court in the said petition. The learned Civil Judge
(Senior Division), after having assessed the oral and
documentary evidence brought on record before him, allowed
the petition filed by the respondent and granted the decree of
divorce in favour of the respondent. Aggrieved by the Judgment
and decree so passed, the appellant preferred Regular Civil
Appeal No.18 of 2009 before the District Court and since the
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District Court has dismissed the said appeal and thereby has
confirmed the decree of divorce passed by the Trial Court, the
appellant has preferred the present Second Appeal.
5. Shri V.S.Bedre, learned Counsel appearing for the appellant
assailed the Judgments passed by the Courts below on various
grounds. The learned Counsel submitted that the Courts below
have utterly failed in appreciating that the desertion was the
main ground for seeking divorce by the respondent, which has
not been duly proved by the respondent. The learned Counsel
further submitted that the Courts below have also failed in
appreciating that if the wife is forcibly driven away by the
husband and is, therefore, compelled to live at her parental
house, sometimes for a quite long period as is the situation in
the present case, the said period cannot be considered in
arriving at a conclusion that the wife deserted her husband and
remained away from his company for a long time so as to entitle
the husband to seek divorce on the ground of desertion. The
learned Counsel submitted that in the instant matter, the
appellant was driven out by the respondent in the year 1996 and
her one year old son was snatched from her by the respondent.
The learned Counsel submitted that since then against her wish,
the appellant is residing at her parental house. The learned
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Counsel submitted that the appellant was forced to make an
application under Section 97 of the Code of Criminal Procedure
so as to obtain custody of her tender aged son. The learned
Counsel further submitted that since beginning the appellant
had consistently taken a stand that she wants to cohabit with the
respondent. She also filed a petition under Section 9 of the Act
seeking restitution of conjugal rights against the respondent.
The learned Counsel submitted that the appellant had made all
honest and bonafide efforts to cohabit with the respondent, but
as the respondent had fallen in love with one Megha Rokade and
was intending to marry with her, and according to information of
the appellant, ultimately got married with her, the respondent
did not allow the appellant to cohabit with him and by making
false allegations, filed divorce petition against her. The learned
Counsel submitted that both the Courts below have lost sight of
the aforesaid aspect that the appellant was always ready and
willing to cohabit with the respondent and under such
circumstances, no decree of divorce could have been passed
against her that too on the allegation of desertion. The learned
Counsel, therefore, prayed for setting aside the Judgments
passed by the Courts below.
6. Shri A.S.Deshpande, learned Counsel appearing for the
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respondent supported the impugned Judgments. The learned
Counsel submitted that the evidence, which has come on record
clearly demonstrates that the appellant was not willing to stay
with the respondent and at her own had left the company of the
respondent by leaving behind minor son Rohan with the
respondent. The learned Counsel further submitted that by
making false allegations, an application was preferred by the
appellant under Section 97 of the Code of Criminal Procedure for
custody of minor son Rohan. The learned Counsel submitted that
the said application is not the only instant of making false
allegation by the appellant against the respondent, but there are
many more such acts committed by the appellant thereafter.
7. The learned Counsel submitted that the appellant had filed
absolutely false case under Section 498-A of the IPC, not against
the respondent alone, but also against his parents and brother.
The learned Counsel submitted that the aforesaid criminal case
ultimately ended in acquittal. The learned Counsel submitted
that the false allegations were made by the appellant in the
aforesaid complaint as about the monetary demands by the
respondent and his parents from the appellant, which ultimately
proved to be without any substance.
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8. The learned Counsel further submitted that the appellant in
her testimony, in the proceeding under Section 125 of the Code
of Criminal Procedure, has unambiguously deposed before the
Court that she was not willing to cohabit with the respondent.
The learned Counsel further submitted that though, an allegation
was made by the appellant that the respondent did not care for
the health of son Rohan, the material on record shows that the
respondent and her mother both had admitted in their respective
cross-examinations that the entire expenses on the treatment of
Rohan were borne by the respondent.
9. The learned Counsel submitted that the petition for
restitution of conjugal rights was filed by the appellant much
after the petition seeking divorce was filed by the respondent.
According to the learned Counsel it was an after thought
decision. The learned Counsel further submitted that the Civil
Court dismissed the said petition and though, the appellant
preferred appeal against the said Judgment in the District Court,
the appeal so filed by her, has also been dismissed by the
District Court. The learned Counsel submitted that it has been
throughout proved that the appellant was never willing to
cohabit with the respondent. The learned Counsel submitted
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that it has also been amply proved that the appellant had made
all false allegations against the respondent and his family
members and has caused great harassment to all of them. The
learned Counsel submitted that had the appellant been really
intending to rejoin the company of the respondent, she would not
have indulged in making such false allegations against him and
his family members.
10. The learned Counsel further submitted that the appellant
and the respondent are living separately for last more than 20
years and therefore, chances of joining together are very dim
and bleak. The learned Counsel further submitted that having
regard to long period of continuous separation, it has to be held
that present is the case of irretrievable breakdown of marriage
and there is no propriety in now asking the parties to reunite. In
order to support his contention, the learned Counsel relied on the
decision in Naveen Kohli Vs. Neelu Koli [AIR 2006 Supreme Court
1675]. The learned Counsel also relied upon two Judgments of
Orissa High Court; one from the Division Bench in the case of
Susmita Acharya Vs. Dr.Rabindra Kumar Mishra [AIR 2003 Orissa
23] and other by learned single Judge in the case of Pradeep
Kumar Nanda Vs. Sanghamitra Binakar [AIR 2007 Orissa 60] . The
learned Counsel prayed for dismissal of the appeal.
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{9} SA 439 of 2010
11. I have given due consideration to the submissions made by
the learned Counsel appearing for the parties. I have perused
the Judgments passed by the Courts below as well as the other
material placed on record. I have also gone through the
evidence on record.
12. The respondent had filed Hindu Marriage Petition No.12 of
2007, seeking decree of divorce against the appellant on two
grounds; cruelty and desertion. It was the specific allegation of
the respondent that by making false allegations against him and
his family members and initiating falls complaints against them,
the appellant had subjected all of them to tremendous mental
pain and agony. It was further specifically contended by the
respondent that the appellant at her own left his company in the
year 1997 and since then, is residing separately and has thus,
deserted him without any sufficient cause.
13. The appellant had denied all the said allegations in the
written statement filed by her in the said Hindu Marriage Petition
No.12 of 2007. The appellant had, on the contrary, made
counter allegations against the respondent that she was being
physically and mentally tortured by him and was subjected to
cruelty on account of non-fulfillment of the monetary demands
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made by him. It was also alleged by the appellant that since her
parents could not fulfill the demand made by the respondent to
pay him Rs.1,00,000/- for his appointment on the post of PSI, she
was brutally beaten by the respondent and was ultimately driven
out by snatching son from her.
14. It was alleged by the appellant that the respondent was in
love with one Megha Rokade and was intending to get married
with her. According to the appellant, the aforesaid were the
reasons for which the respondent was not ready to cohabit with
her. It was also the contention of the appellant that no attempt
was made by the respondent to take her back for cohabitation. It
was also alleged by the appellant that since the respondent was
intending to marry with Megha Rokade, he was bent upon to give
divorce to her.
15. In order to substantiate the contentions raised in the
petition, the respondent himself had deposed before the Civil
Court and had examined three more witnesses. The witnesses
were examined by the respondent to prove his efforts to bring
back the appellant for cohabitation. The appellant had also
deposed before the Civil Court, but did not examine any more
witness. The Civil Court, after having assessed the oral and
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documentary evidence brought on record, granted the decree of
divorce in favour of the respondent and declared the marriage
solemnized between the appellant and the respondent to have
been dissolved from the date of decision of the petition.
16. I have carefully gone through the evidence, which was
recorded in Hindu Marriage Petition no.12 of 2007, and the
Judgment delivered by the Civil Court on 02.12.2008, in the said
petition. On the basis of the evidence on record, a finding has
been recorded by the Trial Court that the appellant is residing
separately since 1997. The petition for divorce was filed in the
year 2007. It is thus, evident that since prior to 10 years of filing
the petition, the appellant and the respondent were residing
separately.
17. The next question arises, whether there was any sufficient
reason for the appellant to reside separately from the
respondent ? The question also arises, whether the respondent
had made efforts to cohabit with the appellant ? In order to
prove that he was willing to cohabit with the appellant, the
respondent has adduced the evidence of three witnesses. All the
three witnesses namely Laxman Tukaram Ghaitadak (PW-2),
Shaikh Asif Babulal (PW-3) and Keshav Bhoju Patare (PW-4) were
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examined to bring on record the efforts made by the respondent
to bring back the appellant for cohabitation. As has come on
record through the evidence of the aforesaid witnesses, all
genuine efforts were made by the respondent to bring back the
appellant for cohabitation. Nothing has been brought on record
in the cross-examinations of these witnesses so as to disbelieve
the facts stated by these witnesses before the Civil Court.
18. As against it, though, in her examination-in-chief, the
appellant stated that she will be examining some witnesses to
prove her allegations made against the respondent, no witness
came to be examined by her. From the facts, which have come
on record through the evidence of witnesses examined by the
respondent and the facts, which have come on record through
the cross-examination of the appellant, the Trial Court reached to
a conclusion that respondent successfully proved that the
appellant has deserted him without any sufficient cause.
19. After having scrutinized the Judgment delivered by the
learned Trial Court in the light of the evidence adduced before it,
I did not find any infirmity in the findings recorded by the Trial
Court. Two serious allegations were made by the appellant
against the respondent; first that he did not care for the health of
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their son Rohan though, he was having heart disease by birth
and the second allegation was that a huge amount of
Rs.1,00,000/- was demanded by the respondent and for non-
fulfillment of the said demand, she was subjected to physical and
mental tortures and driven out from the house. In so far as the
first allegation is concerned, in her cross-examination, the
appellant candidly admitted that the medical expenses on the
treatment of Rohan were borne by the respondent. She has also
admitted that blood to Rohan was donated by the friend of
respondent namely Avinash Bhatangekar. She has also admitted
that Rohan was admitted in Ruby Hospital on 09.11.1995 by her,
respondent and his parents. In view of such admissions given by
the appellant in her cross-examination, the Civil Court has
dismissed the allegation of the appellant against the respondent
that the respondent did not care for the health of son Rohan.
20. As about the second allegation in regard to monetary
demands allegedly made by the respondent, the appellant had
filed a Criminal Case No.268 of 2001 under Section 498-A of the
IPC in the Court of Chief Judicial Magistrate, Ahmednagar, against
the respondent, his parents and two brothers. The Chief Judicial
Magistrate, Ahmednagar dismissed the said criminal case vide its
Judgment rendered on 27.09.2005. The Chief Judicial Magistrate
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has held that the complainant i.e. present appellant could not
bring on record any evidence to prove her allegations made
against the respondent and his family members.
21. Though the allegation was also made by the appellant that
the respondent was not ready to cohabit with her as he was in
love with one Megha Rokade and was intending to marry with
her, as has been rightly observed by the learned Trial Court, the
appellant had not taken any such averments in her written
statement. The Trial Court has also rightly observed that when
these facts were well within her knowledge, she must have
specifically averred the said facts in her written statement. The
Trial Court has further rightly recorded a conclusion that not filing
of any complaint by the appellant in the Police Station at the
relevant time i.e. in the year 1997, when she was allegedly
driven out of house and was allegedly beaten prior to that, no
implicit reliance can be placed on the said allegation. The Trial
Court has also observed that in the proceeding under Section
125 of the Code of Criminal Procedure filed by the appellant
seeking maintenance from the respondent, the appellant has
unambiguously deposed that she was not ready to cohabit with
the respondent.
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22. After having analyzed the evidence as aforesaid, the
learned Trial Court has recorded a finding that the petitioner i.e.
the present respondent had successfully proved that the
respondent i.e. the present appellant was residing separately
since 1997, without any sufficient cause and though, it was her
contention that she was residing with her husband till 2001, the
said contention was false. It is the matter of record that during
pendency of the Hindu Marriage Petition No.12 of 2007, the
appellant filed another Hindu Marriage Petition No.246 of 2008
under Section 9 of the Act, seeking restitution of conjugal rights.
The learned Trial Judge in paragraph no.17 of its Judgment has
dealt with the said fact and has recorded a conclusion that had
the appellant was really intending to cohabit with the
respondent, she must have filed the petition seeking restitution
of conjugal rights much prior. The Court has also observed that
the appellant had not given any explanation for the inordinate
delay committed by her in filing petition seeking restitution of
conjugal rights. After considering the facts as aforesaid and the
evidence adduced by both the parties, the Trial Court held that
the respondent has sufficiently proved that the appellant
deserted him without any sufficient cause and consequently,
granted decree of divorce on the said ground.
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{16} SA 439 of 2010
23. The appellant though challenged the Judgment and decree
passed by the Trial Court by filing Regular Civil Appeal No.18 of
2009, the learned First Appellate Court did not cause interference
in the findings recorded by the Trial Court. The First Appellate
Court has also recorded an unambiguous finding that the
appellant deserted the respondent in the year 1997 and since
then, she had been staying with her mother. While appreciating
the evidence, the First Appellate Court has also dismissed the
allegations made by the appellant against the respondent of not
taking care of son Rohan and giving physical and mental tortures
to her for non-fulfillment of monetary demands allegedly made
by the respondent.
24. In the present Second Appeal, as noted by me herein
above, the emphasis of Shri Bedre, learned Counsel appearing
for the appellant, was on the issue that the Courts below have
failed in appreciating that the appellant was forced to live
separately and as such in no case, it can be said that the
appellant deserted the respondent. I am, however, not at all
convinced with the argument so made. The Courts below have
elaborately discussed that the appellant has failed in proving
that she was driven out in the year 1997, and was forced to live
separately since then. On the contrary, it was the case of the
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appellant that till 2001, she was residing with the respondent.
The said contention was negated by the Courts below on the
basis of evidence on record. As I noted herein above, there is no
infirmity in the findings recorded by the Courts below.
25. It was also sought to be contended by Shri Bedre, learned
Counsel that had there been the intention of the appellant not to
cohabit with the respondent, she would never have filed a
petition seeking restitution of conjugal rights. The submission so
made is also liable to be turned down. The petition for
restitution of conjugal rights was admittedly filed during
pendency of the petition filed by the respondent seeking divorce
on the ground of cruelty and desertion. The Court, which has
dismissed the petition for restitution of conjugal rights and the
First Appellate Court, which has confirmed the said decision in
Regular Civil Appeal No.256 of 2010 have rightly observed that if
the appellant was really desiring to cohabit with the respondent,
she would have filed the petition for restitution of conjugal rights
much prior. The said Courts have also observed that the
appellant has not provided any cogent explanation for filing the
petition for restitution of conjugal rights at such a belated stage.
26. The appellant has filed a civil application for permitting her
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to produce certain documents as additional evidence. These
documents contain the complaints made by the appellant with
the higher Police authorities of the respondent and letter
received to her from the Colaba Police station as well as a letter
received from Podar International School, containing an
information that Antara Patare daughter of Gautam Patare is
studying in their School in class 2 and her date of birth is
06.10.2002. The copy of memo of appeal in Regular Civil Appeal
No.256 of 2010 is also sought to be produced on record.
27. I have carefully perused the documents sought to be
placed on record. The appellant had made complaint with the
higher authorities of the respondent that the respondent has
contacted second marriage and had, therefore, prayed for taking
appropriate action against the respondent. Most of the
documents are in that regard only. However, Colaba Police
Station had informed the appellant that in the enquiry conducted
by the said Police Station, the allegation made by the appellant
that respondent had contacted second marriage with one Megha
Rokade is not confirmed. The other documents also at such
belated stage cannot be permitted to be produced on record.
28. After having considered the evidence on record and having
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gone through the Judgments passed by the Courts below, it does
not appear to me that any error has been committed by the
Courts below in granting the decree of divorce in favour of the
respondent. I have no hesitation, after having scrutinized the
evidence on record, to hold that the present respondent has
sufficiently proved that the appellant, without any sufficient
cause, deserted him. The Courts below have also rightly held
that there was no genuine attempt from the side of the appellant
for cohabitation with the respondent. On mere admission of the
respondent that he loves Megha Rokade, no such inference can
be drawn in absence of any concrete evidence in that regard that
the respondent had contacted second marriage with her.
29. It is true that previously, Hindu Marriage Petition No.196 of
2005 was filed by the respondent seeking dissolution of the
marriage, but the said came to be dismissed. However,
admittedly the said petition was dismissed for want of taking
steps by the respondent to serve the respondent in the said
petition i.e. present appellant. Dismissal of the said suit on the
said ground cannot be a bar for filing a fresh suit.
30. It has to be further stated that the decree of divorce was
sought by the respondent on the ground of cruelty and desertion.
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It is revealed that the Trial Court has given much weightage to
the aspect of desertion. In fact, a specific issue as about the
cruelty was also required to be framed. Admittedly, it was not
framed. However, the respondent has sufficiently proved the
ground of cruelty also and the reference has come in that regard
in the Judgments of the Trial Court as well as the First Appellate
Court. According to me, the ground of cruelty assumes equal
importance and the respondent was fully justified in seeking
decree of divorce against the present appellant on the ground of
cruelty also.
31. As has come on record, the appellant had filed Regular
Criminal Case No.268 of 2001, not only against the present
respondent but against his parents and two brothers under
Section 498-A of the IPC. It is the matter of record that all the
five accused in the said case were acquitted by the Chief Judicial
Magistrate, Ahmednagar, in the aforesaid criminal case. As was
argued by the learned Counsel appearing for the respondent, the
relations went on becoming more strained after the respondent
and his family members were subjected to undergo a trial under
Section 498-A of the IPC. It was also contended by the learned
Counsel that a false criminal case would amount to matrimonial
cruelty. There appears substance in the submission so made by
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the learned Counsel. As has come on record and as has been
observed by the Courts below, though, a serious allegation was
made by the appellant against the respondent that a huge
amount of Rs.1,00,000/- was demanded by the respondent and
for non-fulfillment of the said demand, she was brutally beaten
and was driven out of the house, the appellant could not
substantiate the said allegation by bringing on record any cogent
evidence therefor. It has also been observed by the Courts below
that in the statement given by the mother of the appellant, she
did not whisper about any such demand from the respondent.
There is reason to believe that a false criminal case was filed by
the appellant against the respondent and his family members.
32. As held by the Hon’ble Apex Court in the case
of K. Srinivas Vs. K. Sunita, [(2014) 16 SCC 34] it is beyond cavil
that, if a false criminal case is preferred by either spouse, it
would invariably and indubitably constitute matrimonial
cruelty and as such would entitle to the other spouse to
claim a divorce.
33. In case of Vishwanath Sitaram Agrawal Vs. Sau. Sarla
Vishwanath Agrawal [2012 (6) Mh.L.J. (S.C.) 1] the facts were
that, the wife had filed a complaint under section 498-A of I.P.C.
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against the husband, her father-in-law and other
relatives, who were acquitted in that case and the said
decision of the acquittal was not assailed before the higher
forum and thus the conclusion recorded by the trial Court
that allegations on that count were incorrect and
untruthful had become final. In light of the facts as aforesaid,
the Hon’ble Apex Court observed that, the act of filing false
complaint under section 498-A of I.P.C. by the wife created
mental trauma in the mind of the husband. The Hon’ble Apex
Court has further observed that, no one would like to face a
criminal proceeding of this nature on baseless and untruthful
allegations.
34. The Hon’ble Apex Court in the case of V. Bhagat Vs. D.
Bhagat [(1994) 1 SCC 337] has held that, ‘a mental cruelty under
Section 13 (1)(i-a) can be defined as that conduct which inflicts
upon the other party such mental pain and suffering as would
make it not possible for that party to live with the other.’
35. In the case of Anil Yeshwant Karande Vs. Mangal Anil
Karande [2016 (2) Mh.L.J. 166] the learned Single Judge of this
Court has referred to the Judgment of the Division Bench of this
Court in the case of Nagesh Dhanapp Chilkanti Vs. Sau.
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Manisha Nagesh Chilkanti in Family Court Appeal No.158 of 2008,
wherein the division bench had considered a similar case where
the husband and his family members were acquitted in
the complaint filed under section 498-A of I.P.C. The Division
Bench has held that, filing of false criminal case against the
husband and his family members would very much constitute
mental cruelty. The Division Bench has further held that, in the
circumstances, the husband was entitled to a decree of divorce
on the ground of cruelty.
36. The learned single Judge of this Court in the case of Anil
Vs. Mangal (supra) has referred to all above Judgments. In the
present case, it is argued that the Criminal Court has not
recorded a finding that a false complaint was filed against the
respondent but acquitted the respondent and his family
members by giving benefit of doubt. Similar question was raised
in the aforesaid case of Anil Vs. Mangal (supra). I deem it
appropriate to reproduce the said question herein below:-
“Whether for the act of filing complaint under section 498-A of
Indian Penal code, to amount to mental cruelty on
the acquittal of husband and family, is it essential that
judgment of acquittal must find that the complaint filed was
false and with an intention to defame?”
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37. The Division Bench of this Court in the case of Mr.M Vs.
Mrs.M [2014 (2) Mh.L.J. 825] has held that;
“In a given case depending upon the evidence on record,
even if acquittal is on the ground that, charge could not be
substantiated and even if there was no finding recorded by the
criminal court that, the prosecution case was false, there can
be a case of cruelty. The division bench has further
observed that, it depends upon the manner in which the
complaint has been filed and prosecuted.”
38. The learned single Judge in the case of Anil Vs. Mangal
(supra) after having referred to the above Judgments, has held
thus:
“36. The judgments referred to aforesaid clearly indicate
that if the complaint filed by the wife against the husband
under section 498-A of IPC and other related provisions
was dismissed on merits and the husband and his family
members are acquitted, it was clear that the complaint
filed by the wife against the husband was a false
complaint. In my opinion, filing of such complaint itself which
create mental trauma on the husband and the complaint
which was seriously prosecuted by the wife by leading
evidence of several persons and bringing the said
complaint to its logical conclusion which ultimately resulted in
acquittal of the husband and his family members clearly
amounted to the cruelty committed by the wife upon the
husband.
37. The judgments of the Supreme Court and this
Court which are referred to aforesaid squarely apply to the
facts of this case. I am respectfully bound by those judgments.
There is no dispute that the husband and his family members::: Uploaded on – 20/10/2018 21/10/2018 23:49:24 :::
{25} SA 439 of 2010were ultimately acquitted in such complaint made by the
respondent. It was not the case of the respondent before the
trial Court as well as before the lower appellate Court that the
finding rendered by the learned Magistrate First Class were
erroneous and such allegations were not independently proved
by the respondent before the learned trial Court as
well as before the lower appellate Court. A perusal of the
order passed by the lower appellate Court indicates that the
evidence led by the respondent and other witnesses in the said
criminal proceedings and the findings rendered by the
learned Magistrate First Class have been totally ignored
by the learned trial Court.
38. The Supreme Court as well as this Court in the aforesaid
judgments have consistently held that if the false criminal
complaint is preferred by either spouse it would invariably
and indubitably constitute matrimonial cruelty, such as
would entitle the other spouse to claim a divorce. In my
view, the respondent having filed a false complaint
alleging offence under section 498-A, 323, 504 and 506 of
IPC in which the appellant and his family members were
acquitted and thus the appellant was entitled to seek divorce
on the ground of cruelty under section 13(1)(i-a) of the Hindu
Marriage Act.”
39. In view of the law settled as above, there cannot be a
doubt that the criminal case filed by the appellant under Section
498-A of the IPC against the respondent would indubitably
constitute matrimonial cruelty and as such had entitled the
respondent to claim divorce on the said ground.
40. Lastly, as about the issue raised and canvassed by Shri
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{26} SA 439 of 2010
Deshpande, the learned Counsel appearing for the respondent.
The learned Counsel submitted that appellant and respondent
are living separately from each other since last more than 20
years and their chances of reunion are very dim and bleak.
There is much substance in the point so raised by the learned
Counsel. After having considered the over all circumstances in
the matter and more particularly, having regard to the fact that
the appellant and the respondent are residing separately for last
more than 20 years, it can be reasonably inferred that there is
irretrievable breakdown of marriage.
41. The Hon’ble Apex Court in the case of Naveen Kohli (supra)
has expressed the necessity of bringing an amendment in the
Hindu Marriage Act, 1955 thereby making “irretrievable
breakdown of marriage as one of the grounds for seeking
divorce.” I deem it appropriate to reproduce relevant
observations made by the Hon’ble Apex Court, which read thus:
“A law of divorce based mainly on fault is inadequate to deal
with a broken marriage. Under the fault theory, guilt has to be
proved; divorce courts are presented concrete instances of
human behaviour as bring the institution of marriage into
disrepute. 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 interest
of the parties. Where there has been a long period of
continuous separation, it may fairly be surmised that the
matrimonial bond is beyond repair. The marriage becomes a::: Uploaded on – 20/10/2018 21/10/2018 23:49:24 :::
{27} SA 439 of 2010fiction, 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. 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 of that fact. 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 for ever to a marriage that in fact has ceased to
exist. 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.”
42. In the instant matter also, though, it was the contention of
the learned Counsel for the appellant that still there are hopes of
reunion of the appellant and the respondent, and the appellant is
ready and willing to cohabit with the respondent, after having
considered the evidence on record, it does not appear to me that
any such possibility exists. It appears to me that the respondent
had sufficiently proved the allegation of cruelty on the part of the
respondent as well as the fact of desertion by the appellant
without any sufficient cause and as such the Trial Court has
rightly granted the decree of divorce on the aforesaid ground in
favour of the respondent. It does not appear to me that the First
Appellate Court has committed any error in confirming the said
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{28} SA 439 of 2010
decree. No such ground is made out by the appellant in the
present appeal so as to cause interference in the Judgments
passed by the Courts below. The Second Appeal, therefore, fails
and stands dismissed. Pending civil applications stand disposed
of.
(P.R.BORA)
JUDGE
SPT
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