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Judgments of Supreme Court of India and High Courts

Vasundara Gautam Patare vs Gautam Keshav Patare on 16 October, 2018

{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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{2} SA 439 of 2010

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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{3} SA 439 of 2010

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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{4} SA 439 of 2010

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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{5} SA 439 of 2010

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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{6} SA 439 of 2010

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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{7} SA 439 of 2010

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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{8} SA 439 of 2010

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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{10} SA 439 of 2010

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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{11} SA 439 of 2010

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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{12} SA 439 of 2010

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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{13} SA 439 of 2010

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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{14} SA 439 of 2010

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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{15} SA 439 of 2010

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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{17} SA 439 of 2010

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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{18} SA 439 of 2010

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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{20} SA 439 of 2010

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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{22} SA 439 of 2010

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

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{25} SA 439 of 2010

were 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

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{27} SA 439 of 2010

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. 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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