Daily Archives: December 27, 2015

Criminal case BEFORE marriage, criminal case AFTER marriage! Man & parents arrstd. Divorce by Bom HC

Live-in woman uses Dowry case b4 marriage, to rope in man, forcing him to marry her. She then promptly Files a IPC 498a (cruelty to wife case) after marriage again! Husband and parents are arrested !! She goes on appeal against husband’s divorce. Bom HC grants divorce to hubby. 

In this case a woman in a live in relationship files two criminal cases on a man (one under DP act stating that he demanded dowry and a second under sec 323, 504 and 506 of Indian Penal Code. She threatens the man to marry her, failing which she will prosecute him. The poor guy agrees to marry the woman and she also compromises and closes those cases !!

After becoming his wife, she again files 498A etc and has him and his parents arrested !! The man is acquitted in these 498A cases by the trial court and in two appeals one at sessions and one at the High court itself

The man files for Divorce and is granted divorce by the civil judge, but due to appeals the case finally lands at the Hon Bombay HC. The HC appreciates the fact that the woman has filed false cases and treated the man with cruelty. The Hon HC grants divorce to the man even though the trial court has NOT specifically mentioned that 498A filed by the woman is false 

Inter alia, the Hon HC notices that “…33. A perusal of the orders passed in the criminal proceedings clearly indicates that the appellant and his family members were arrested in view of the complaint filed by the respondent under section498-A read with 34 of IPC and were subsequently released on board. It further indicates that the appellant and his family members were not acquitted based of any benefit of doubt given to them but were acquitted on the ground that the complaints filed by the respondent was totally vague and the allegations therein were not proved. …’

and in the matter of the civil (divorce) case filed by the husband, the Hon HC states “… A perusal of the order passed by the lower appellant Court however, indicates that the lower appellate Court has taken a very casual approach by totally ignoring the effect of the order of acquittal passed by the Criminal Court….”

Appreciating the entire factual matrix, the Hon orders Divorce on grounds of cruelty !

 

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO. 634 OF 2013

 

Shri Mangesh Balkrushna Bhoir                   )

Age 37 yrs., Occupation : Business              )

R/at Dhansar, Tal. Palghar,                     )

Dist. Thane                                     )          ….Appellant

Versus….

Sau. Leena Mangesh Bhoir                     )

Age 35 yrs., Occupation :                       )

R/at Through Bhaskar Laxman Patil               )

Tembhi, Post Navapur, Tal. Palghar              )

Dist. Thane                                     )          ….Respondent

 

Ms.Seema Sarnaik i/b Mr.Raj Khude for the Appellant.

Mr.Y.R. Bhate with Mr.Kirankumar Phakade for the Respondent.

 

CORAM         :             R.D. DHANUKA, J.

RESERVED ON   :             5th DECEMBER, 2015.

PRONOUNCED ON :             23rd DECEMBER, 2015.

 

JUDGMENT :-

 

  1. By this second appeal, the appellant has impugned the order passed by the Lower Appellate Bench granting reliefs in favour of the respondent in the civil appeal filed by the respondent. The appellant was the original petitioner in Marriage Petition and the respondent herein was the original respondent in the Marriage Petition.
  2. On 15th June, 2002, the appellant was married to the respondent in Ganapati Temple, Manor. It was the case of the respondent wife that the appellant and the respondent were already staying together since 1996 and during the period between 1996 and 1999, the appellant had refused the proposal of the respondent to marry her. It was the case of the appellant that the respondent and her brother Mr.Jagdish Patil had come to the house of the appellant and given him Rs.10,000/- and asked him to marry with the respondent which the appellant had refused and had returned the said amount. The respondent filed a case (Regular Case No.203/1999) in Palghar Court under sections 3 and 4 of the Prevention of Dowry Prohibition Act against him.
  3. It was the case of the appellant that during the Navratri festival, when the appellant was doing lighting work, respondent abused the respondent in filthy language and filed a case bearing Summary Case No.584/01 under sections 323, 504 and 506 of Indian Penal Code.
  4. On 15th June, 2002, the appellant married with the respondent. It was the case of the appellant that though the appellant did not wish to marry the respondent, the respondent had pressurized the appellant that if the appellant did not marry with her, the appellant would be killed and if he would marry her, the respondent would withdraw both the criminal cases. It was the case of the appellant that in view of such pressure, the appellant had consented for the said marriage which was performed on 15th June, 2002 against his wish. On 12th July, 2002 the two criminal cases filed by the respondent were compromised and were withdrawn.
  5. On 31st May, 2004, the appellant had filed a complaint against the respondent with the Palghar Police Station. On 4 th June, 2004, the respondent filed complaint under sections 498-A read with section 34 of Indian Penal Code against the appellant, his parents and sisters. On 4th June, 2004, the local police station arrested the appellant, his parents and sisters and produced them before the concerned court for bail, the appellant, his parents and sisters were subsequently released on bail. It is the case of the appellant that since 4th June, 2004, the parties have been staying separately. There is no issue out of said wedlock. https://twitter.com/atmwithdickhttps://vinayak.wordpress.com/http://evinayak.tumblr.com/
  6. 6. On 19th July, 2005 the appellant herein filed a petition i.e. Marriage Petition No.52 of 2005 against the respondent wife inter alia praying for divorce on the ground of cruelty and on other grounds. During the pendency of the said marriage petition filed by the appellant herein, a complaint bearing RCC No.193 of 2004 filed by the respondent under section 498-A read with section 34 of Indian Penal Code came to be disposed of on 7th May, 2007.
  7. By the said order dated 7th May, 2007, the appellant, his parents and his sisters were acquitted for the offences under section 498-A read with section 34 of Indian Penal Code. The learned Judicial Magistrate, 1st Class held that the prosecution had failed to prove the offence in which the accused were charged.
  8. On 31st January, 2008 the learned Civil Judge, Senior Division, Palghar allowed the Marriage Petition No.52 of 2005 filed by the appellant herein against the respondent inter alia praying for decree of divorce. By the said order and judgment dated 31 st January, 2008, the learned Civil Judge Senior Division directed that the marriage solemnized between the appellant and the respondent dated 15th June, 2002 was dissolved by decree of divorce under the provisions of Section 13(1) (i-a) of the Hindu Marriage Act from the date of the said order and directed the appellant to pay permanent maintenance of Rs.2,000/- per month to the respondent from the date of the said petition.
  9. Though the appellant had prayed for divorce on various grounds, the learned Civil Judge, Senior Division allowed the said marriage petition only on the ground of cruelty. The said order and judgment of the learned Civil Judge, Senior Division was impugned by the respondent wife before the District Judge – 2, Palghar by filing Civil Appeal No.07 of 2008. During the pendency of the said appeal filed by the respondent wife in the Court of District Judge – 2, the appeal filed by the State of Maharashtra against the order passed by the Judicial Magistrate First Class (Criminal Case No.22 of 2007) in the Court of Additional Sessions Judge at Palghar came to be dismissed by an order and judgment dated 11th July, 2011. The respondent wife challenged the said order and judgment dated 11th July, 2011 passed by the learned District Judge by filing a Criminal Revision Application No.449 of 2011 in this court. The said criminal revision application filed by the respondent wife is dismissed by this court on 11th February, 2013. This court observed that the respondent wife had lodged two criminal prosecutions prior to marriage against the accused persons. The learned judge had considered that the complaints filed by the respondent wife were vague and without details and that the respondent herein was living separately from the accused persons.
  10. By an order and judgment dated 7th August, 2010 the learned District Judge-2, Palghar allowed the Civil Appeal No.07 of 2008 filed by the respondent wife and has set aside the judgment and decree passed by the learned Civil Judge, Senior Division, Palghar in Marriage Petition No.52 of 2005 dated 31st January,2008 and dismissed the marriage petition filed by the appellant herein. This judgment and decree passed by the learned District Judge – 2 allowing the appeal filed by the respondent wife and dismissing the marriage petition filed by the appellant is impugned by the appellant husband in Second Appeal No.634 of 2013.
  11. This court while admitting this Second Appeal No.634 of 2013 on 1st July, 2014 has formulated the following substantial questions of law :-

“Whether in the facts and circumstances, the appellate Court was right in reversing the decree passed by the trial Court for divorce on the ground of cruelty particularly when the proceedings under Section 498A against the appellant-husband has culminated into acquittal upto the last stage ?”

  1. Ms.Seema Sarnaik, learned counsel appearing for the appellant submits that in this case the respondent had not filed any application for restitution of conjugal rights. She had no intention to co-habit with the respondent. She pursued the complaint filed against the appellant, her parents and his sisters under section 498-A read with section 34 of Indian Penal Code to its logical end. She submits that the appellant, his parents and the sisters are acquitted in the criminal complaint filed by the respondent. The criminal court found that the prosecution had failed to prove the allegations made in the complaint. She submits that in the criminal proceedings, the  appellant, his parents and sisters were acquitted but not based on any benefit of doubt given to the appellant and his family members but on merits. She submits that the said order passed by the learned Magistrate, First Class has been confirmed by the learned Sessions Judge and thereafter by this court. It is held that filing of such false complaint under section 498-A read with section 34 of Indian Penal Code and confirmation of such criminal case against the appellant and his family members amounted to the cruelty against the appellant and his family members and thus such action on the part of the respondent wife amounted to cruelty on which ground the appellant was entitled to seek divorce under Section 13(1) (i-a) of the Hindu Marriage Act. She submits that in view of arrest of the appellant along with his family members by the police, there was mental trauma and harassment to the appellant and his family members which amounted to cruelty.
  2. Learned counsel for the appellant invited my attention to the findings rendered in the criminal proceedings in three orders passed therein and also the findings rendered by the learned Civil Judge, Senior Division in the Marriage Petition filed by the appellant. She submits that the learned Civil Judge, Senior Division had rightly held that the action on the part of the respondent in filing criminal complaint under section 498-A read with section 34 of Indian Penal Code amounted to cruelty. She submits that when the order was passed by the learned Civil Judge, Senior Division in the said Marriage Petition, the criminal appeal filed by the State of Maharashtra was pending.
  3. Learned counsel placed reliance on the judgment of Division Bench reported in 2014(4) Bom.C.R.456 and in particular  paragraphs 27, 29, 32 and 34 of the said judgment and would submit that if the acquittal is on the ground that the charge could not be substantiated and even if there is no finding recorded by the criminal court that the prosecution case was false, there can be a case of cruelty.
  4. Learned counsel for the appellant also placed reliance on the judgment of Supreme Court in case of Vishwanath Sitaram Agrawal vs. Sau. Sarla Vishwanath Agrawal, 2012 AIR (SC) 2586 and more particularly paragraphs 28, 29, 33 to 35 and would submit that the decision of acquittal against the appellant, his parents and other relatives in the proceeding filed under section 498A of Indian Penal Code were found incorrect and untruthful and such act on the part of the wife would create mental trauma in the mind of the husband.
  5. Learned counsel appearing for the appellant also placed reliance on the unreported judgment of this court delivered on 6th May, 2010 in case of Nagesh Dhanapp Chilkanti vs. Sau. Manisha Nagesh Chilkanti in Family Court Appeal No.158 of 2008, judgment of Supreme Court in case of K.Srinivas vs. K.Sunita, (2014) 16 SCC 34 in support of the submission that filing of the criminal complaint under section 498A of Indian Penal Code against the appellant and his family members which were found frivolous itself was amounted to cruelty by the respondent upon the appellant and on that ground itself appellant was entitled to seek divorce from the respondent.
  6. Mr.Bhate, learned counsel for the respondent on the other hand submits that the appellant and the respondent were already staying together between 1996 and 2002 as husband and wife. Since  the appellant had refused to marry the respondent in spite of the promise and staying with the respondent as husband, the respondent was compelled to file two complaints against the appellant i.e. one under the provisions of Dowry Prohibition Act and another for committing assault by the appellant on the respondent. He submits that the appellant never filed any proceeding for quashing of those two complaints filed by the respondent wife. Within one month from the date of marriage solemnized between the parties on 15 th June 2002, the respondent wife had withdrawn her complaints on 12 th July, 2002. https://twitter.com/atmwithdickhttps://vinayak.wordpress.com/http://evinayak.tumblr.com/
  7. It is submitted by the learned counsel that the appellant and the respondent were not staying separately but were staying in a separate room. He submits that though the marriage took place on 15th June, 2002, there was no complaint filed by either party against each other till June 2004. He invited my attention to the complaint filed by the appellant on 31st May, 2004 against the respondent alleging threats of the respondent to file complaint under section 498A of Indian Penal Code. He submits that since the appellant had thrown out respondent on 4th June, 2004, the respondent was compelled to file a complaint under section 498A read with section 34 of the Indian Penal Code against the appellant, his parents and sisters for the offences committed by them. He submits that since the respondent was staying with the appellant till 4th June, 2004, the stand of the appellant that the respondent had been staying separately since eight months prior to the date of filing complaint or during the period between 15th June, 2002 to 4th June, 2004 did not arise. He submits that the civil court has to decide the case on the basis of preponderance of the probability. Learned counsel placed reliance on section 23(1) (a) of the Hindu Marriage Act, 1955 and would submit  that the appellant had taken advantage of his wrong by staying with the respondent wife for a period of six years without marriage as a husband and who had committed offence under section 498A cannot be granted divorce in view of section 23(1)(a) of the Hindu Marriage Act, 1955.
  8. Insofar as judgment of this court reported in 2014(4) Bom.C.R. 456 relied upon by the learned counsel for the appellant is concerned, learned counsel appearing for the respondent made an attempt to distinguish the said judgment on the ground that the said judgment was decided on the basis of the facts stated therein which facts are totally different than the facts in this case.
  9. Learned counsel for the respondent placed reliance on the judgment of this court in case of Mrs.Deeplakshmi Sachin Zingade vs. Sachin Rameshrao Zingade, AIR 2010 Bombay 16 and in particular paragraph 16 and submits that this court has held that when the Domestic Violence Act permits the wife to approach the court in case of any cruelty on the part of the husband and if that remedy is availed of, such act should not be treated as an act of cruelty, otherwise in no case a lady can file any complaint, if the filing of such complaint is to be treated as an act of cruelty.
  10. Learned counsel for the respondent placed reliance on the judgment of Patna High Court in case of Bhola Kumar vs. Seema Devi @ Dolly, III (2015) DMC 437 (DB) (Patna) and in particular paragraph 16 and would submit that Patna High Court has taken a view that institution of criminal case by the wife against the respondent and family members will per se not constitute cruelty for the purpose of seeking divorce unless it is held by a Court of  competent jurisdiction that the said complaint/allegation was false and vexatious.
  11. Learned counsel for the respondent made an attempt to distinguish the judgment of Supreme Court in case of K.Srinivas vs. K.Sunita, (2014) 16 SCC 34 on the ground that the Supreme Court in the said judgment had rejected the contention of wife on the ground that the wife had not narrated the complete facts in the complaint. He submits that the facts before the Supreme Court in the said judgment were totally different and the said judgment is clearly distinguishable in the facts of this case.
  12. Ms.Sarnaik, learned counsel for the appellant in rejoinder submits that the appellant husband was compelled to file a complaint against the wife on 31st May, 2004 based on the apprehension that the wife would be initiating a false action under section 498A of the Indian Penal Code and was threatening the appellant and thus the said complaint was justified by the appellant. She submits that the judgments relied upon by the appellant are squarely applicable to the facts of this case and are binding on the parties and this court. It is submitted that the respondent cannot seek reliance upon section 23(1) (a) of the Hindu Marriage Act, 1955 on the ground that false complaints were filed by the wife against the appellant even before marriage was solemnized between the parties and in view of such false and frivolous complaint, the appellant was forced to marry her. She submits that it was the respondent who committed wrong and not the appellant and thus the said provisions under section 23(1) (a) of the Hindu Marriage Act, 1955 would assist the appellant and not the respondent. Learned counsel for the appellant distinguished the judgment of this court in case of Mrs.Deeplakshmi Sachin Zingade  (supra) relied upon by the respondent on the ground that the complaint in the present proceedings was not filed under the provisions of Domestic Violence Act but were filed under the provisions of section 498-A of the Indian Penal Code. The criminal complaint in the said proceedings were still pending whereas in this case, a criminal complaint filed at the instance of the respondent was dismissed with a finding that the prosecution could not prove the allegations made in the complaint. She submits that the said judgment would not apply to the facts of this case at all.
  13. Learned counsel for the appellant also distinguished the judgment of Patna High Court in case of Bhola Kumar (supra) relied upon by the learned counsel for the respondent on the ground that the criminal case in the said matter was pending adjudication before the criminal court of competent jurisdiction and thus the said judgment would not apply to the facts of this case.

REASONS AND CONCLUSIONS :-

  1. There is no dispute that the appellant and the respondent were staying together prior to 15th June, 2002. It was the case of the respondent wife that the appellant and the respondent were staying together since 1996 and during the period between 1996 and 1999, the appellant had refused the proposal of the respondent to marry her. It is also not in dispute that the respondent had filed a case (Regular Case No.209 of 1999) in Palghar Court under sections 3 and 4 of the Prevention of Dowry Act against the appellant. The respondent had also filed one more criminal case i.e. Criminal Case No.584 of 2001 under sections 323, 504 and 506 of the Indian Penal Code against the appellant during that period.
  2. It was the case of the appellant that though the appellant did not wish to marry the respondent, the respondent had pressurized the appellant that if the appellant did not marry her, the appellant would be killed and if he would marry her, the respondent would withdraw both the criminal cases against the appellant. The appellant had married the respondent on 15th June, 2002. It is not in dispute that on 12th July, 2002, both the criminal cases were compromised and were withdrawn.
  3. It was the case of the appellant that since 4 th June, 2004, the parties have been staying separately and there was no issue out of the said wed-lock.
  4. It was the case of the appellant that since the respondent had threatened the appellant of filing a complaint under section 498-A read with 34 of IPC, the appellant had filed a complaint against her on 31st May, 2004. On 4th June, 2004, the respondent filed a complaint under section 498-A read with 34 of IPC against the appellant, his parents and sisters. On 4th June, 2004, local police arrested the appellant, his parents and sisters who were subsequently released on bail.
  5. There is no dispute that during the pendency of the marriage petition filed by the appellant husband against the respondent, inter-alia praying for divorce on the ground of cruelty and other grounds, by an order dated 7th May, 2007 passed by the Criminal Court, the appellant and his family members were acquitted in the complaint bearing Regular Case No.193 of 2004 filed by the respondent. The learned trial Judge allowed Marriage Petition No.52 of 2005 under section 13(1)(i-a) of the Hindu Marriage Act, 1955 for  dissolution of marriage and by a decree of divorce on the ground that the respondent wife had committed cruelty upon the appellant.
  6. It is not in dispute that the appeal filed by the State Government against the order passed by the Judicial Magistrate First Class acquitting the appellant and his family embers in the Court of Additional Sessions Court, Palghar came to be dismissed by an order and judgment dated 11th July, 2011. Criminal Revision Application No.449 of 2011 filed by the respondent wife against the order passed by the Additional Sessions Judge also came to be dismissed by this Court on 11th February, 2013. This Court while dismissing the said criminal revision application has observed that the respondent wife has lodged these two criminal proceedings even prior to the date of marriage with the appellant against the appellant. The said order passed by this Court on 11th February, 2013 has not been impugned by the respondent wife and the said order has attained finality.
  7. A perusal of the three orders passed in the criminal proceedings filed against the appellant and his family members clearly indicates that the complaint filed by the respondent against the appellant and his family members has been rejected on merits. The appellant and his family members were not acquitted in the criminal proceedings on the basis of benefit of doubt given to the appellant and his family members. The order passed by the learned Magistrate First Class has been confirmed by the learned Additional Sessions Judge and thereafter by this Court. The learned trial Court in the criminal proceedings filed by the appellant had held that filing of such false case under sections 498-A read with 34 of IPC by the respondent against the appellant amounted to cruelty against the appellant and his family members and on that ground the appellant  was entitled to seek divorce.
  8. Insofar as the submission of learned counsel for the respondent that the appellant had not filed any proceedings for quashing of those two complaints filed by the respondent wife before the the appellant had married the respondent is concerned, a perusal of the record makes it clear that immediately upon the appellant marrying the respondent, the respondent had compromised both the criminal cases and had withdrawn those complaints. In my view, there is thus merit in the submission made by learned counsel for the appellant that the appellant was forced to marry the respondent in view of such criminal complaints filed against the appellant before such marriage and only because of the assurance by the respondent that those complaints would be withdrawn if the appellant would marry her, the appellant had married the respondent.
  9. A perusal of the orders passed in the criminal proceedings clearly indicates that the appellant and his family members were arrested in view of the complaint filed by the respondent under section498-A read with 34 of IPC and were subsequently released on board. It further indicates that the appellant and his family members were not acquitted based of any benefit of doubt given to them but were acquitted on the ground that the complaints filed by the respondent was totally vague and the allegations therein were not proved. The order passed by the learned Magistrate First Class, in the said complaint has attained finality in view of the order passed by the learned Additional Sessions Judge dismissing the appeal filed by the State of Maharashtra and by virtue of the order passed by this Court, dismissing the criminal revision application field by the respondent. It is thus clear that there was a mental trauma on the  appellant in view of such criminal complaint which was prosecuted by the respondent right up to this Court by taking it to its logical end. The respondent has been already staying separately for last 10 years. There was no separate application filed by the respondent for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955. In my view, the learned trial Court was thus right in holding that the respondent wife had committed cruelty upon the appellant and was right in grating a decree of divorce on that ground.
  10. A perusal of the order passed by the lower appellant Court however, indicates that the lower appellate Court has taken a very casual approach by totally ignoring the effect of the order of acquittal passed by the Criminal Court. When lower appellate Court had passed an order on 7th August, 2010, the learned Magistrate First Class had already dismissed the complaint filed by the prosecution under section 498-A read with 34 of IPC which acquitted the appellant and his family members.
  11. Both the parties have relied upon several judgments of the Supreme Court and this Court. The Supreme Court in case of K. Srinivas (supra) has held that it is beyond cavil that if a a 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. The Supreme Court in the said judgment held that the respondent wife had admitted in her cross- examination that she did not mention of the incidents on which her complaint was predicated, in her statement under section 161 of Cr.P.C. It was also not her case that she had actually narrated all those facts to the Investigating Officer but he had neglected to mention them. The Supreme Court accordingly held that it was clearly  indicative of the fact that the criminal complaint was contrived after thought. The Supreme Court took cognizance of the fact that though the High Court had been informed about the acquittal of the husband and his family members, the High Court had not concluded that complaint of the wife was knowingly and intentionally a false complaint, calculated to embarrass and incarcerate the appellant and seven members of his family. It is held that the High Court ought to have concluded that the said complaint was false complaint and that such conduct of the wife unquestionably constituted cruelty as postulated in section 13(1)(i-a) of the Hindu Marriage Act, 1955.
  12. The Division Bench of this Court in case of Nagesh Dhanapp Chilkanti vs. Sau.Manisha Nagesh Chilkanti (supra) had considered a similar case where the husband and his family members were acquitted in the complaint filed under section 498-A of IPC read with other provisions of IPC. The Division Bench of this Court has held that filing of false criminal cases against the husband and his family members would very much constitute mental cruelty. The Division Bench further held that the respondent wife was guilty of treating the husband with utmost mental cruelty by filing false criminal case which ultimately resulted in acquittal and thus the husband was entitled to a decree of divorce o the ground of cruelty. A perusal of the order passed by the learned Magistrate First Class in the criminal case filed by the prosecution based on the complaint filed by the respondent indicates that the said complaint has been rejected on merits and not on the ground that the prosecution had failed to prove the case beyond reasonable doubt. In my view, it was thus clear that the said complaint filed by the respondent wife against the appellant and his family members was a false complaint and was filed as and by way of after thought and with an intention to defame the  appellant and his family members.
  13. The Division Bench of this Court in case of Nitin Ramesh Dhiwar vs. Sou. Poopali Nitin Dhiwar (supra) has held that filing of a false criminal case itself amounts to cruelty within the meaning of section 13(1)(i-a) of the Hindu Marriage Act, 1955.
  14. The Division Bench of this Court in the judgment reported in 2014(4) B.C.R. 456 has held that in a given case depending upon the evidence on record, even if acquittal is on the ground that the charge could not be substantiated and even if there was no finding recorded by the Criminal Court that the prosecution’s case was false, there can be a case of cruelty. It depends on the manner in which the complaint was filed and prosecuted.
  15. The Supreme Court in case of Vishwanath Sitaram Agrawal vs. Sau.Sarla Vishwanath Agrawal, reported in AIR 2012 SC 2586 has after considering the fact that the wife had filed a complaint under section 498-A of IPC against the husband, her father-in-law and other relatives, who had been acquitted in that case and the said decision of the acquittal had not been assailed before the higher forum, the allegations on that count were incorrect and untruthful and thus it could be unhesitatingly be stated that such an act creates mental trauma in the mind of the husband as no one would like to face a criminal proceeding of this nature on baseless and untruthful allegations. In this case also the appellant and his family members have been acquitted since the allegations made in the complaint filed by the respondent and in the proceedings filed by the prosecution were not proved on merits. The said judgment of the learned Magistrate First class has admittedly been upheld by the  learned Session Court and by this court. The said judgment, in my view, would squarely apply to the fact of this case.
  16. The Supreme Court in case of G.V.N. Kameswara Rao vs. G. Jabilli, reported in (2002) 2 SCC 296 has adverted to its earlier judgment in case of V. Bhagat vs. D. Bhagat, reported in (1994) 1 SCC 337 in which it was 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. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. The Court must have regard to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. In that case also both the parties did not live together for a long period as happy married couple. The Supreme Court held in that case that the appellant husband could not be denied the relief by invoking section 23(1)(a) of the Hindu Marriage Act. https://twitter.com/atmwithdickhttps://vinayak.wordpress.com/http://evinayak.tumblr.com/
  17. 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.
  18. 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 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.
  19. 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 and other provisions 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.
  20. Insofar as the submission of learned counsel for the  respondent that the appellant and the respondent were staying in a separate room and that there was no complaint filed by either party against each other till 2004 and thus there was no question of the respondent committing any cruelty against the appellant is concerned, the fact remains that the respondent had filed a complaint against the appellant and his family members under section 498-A of IPC. The appellant apprehending that such complaint would be filed, had filed a police complaint against the respondent on 31st May, 2004. As and by way of counter blast to the said complaint, the respondent filed a complaint under section 498-A of IPC on 4th June, 2004.
  21. Insofar as the submission of learned counsel for the respondent that in view of the appellant and the respondent staying for a period of six years i.e. from 1996 till 2002 together i.e. prior to the date of marriage as husband and wife,the learned trial Judge could not have granted divorce against the respondent in view of the appellant having taken advantage against the respondent by placing reliance on section 23(1)(a) of the Hindu Marriage Act, 1995 is concerned, in my view there is no merit in this submission of learned counsel. A perusal of the record clearly indicates that the respondent had filed two complaints against the appellant even prior to the date of marriage. Since the appellant married the respondent ultimately, both the complaints were compromised. The respondent thereafter filed a fresh complaint under section 498-A of IPC against the appellant and his family members and based on such false complaint, the appellant and his family members were arrested. In my view, since the respondent had taken advantage of the appellant of her own wrong and not the appellant as canvassed by learned counsel for the respondent, the appellant was entitled to seek divorce under the said provision. The said provision in these facts and circumstances would  come to the rescue of the appellant and not the respondent herein.
  22. This Court in case of Manoj Madhukarrao Pate vs. Sou.Vijaya Manoj Pate, reported in 2015(1) ALL MR 95 has considered a similar situation and has held that the wife who had filed a false complaint against the husband and his family members under section 498-A of IPC, and the husband and his family members having been acquitted, the husband was entitled to seek divorce on the ground of cruelty under section 13(1)(i-a) of the Hindu Marriage Act, 1955 against the wife.
  23. In my view, the judgment of the Supreme Court in case of G.V.N. Kameswara Rao vs. G. Jabilli, reported in (2002) 2 SCC 296, on the issue raised by the learned counsel for the respondent under section 23(1)(i-a) of the Hindu Marriage Act, 1955 would apply to the facts of this case and would assist the case of the appellant husband.
  24. Insofar as the judgment of the Division Bench of this Court in case of Mrs.Deeplakshmi Sachin Zingade vs. Sachin Rameshrao Zingade (supra) relied by learned counsel for the respondent is concerned, in my view the said judgment is clearly distinguishable in the facts of this case. The complaint filed by the wife in the said matter was under the provisions of Domestic Violence Act and not under section 498-A of IPC. The provisions of section 498-A of IPC are totally different than the provisions of Domestic Violence Act.
  25. Insofar as the judgment of the Patna High Court in case of Bhola Kumar vs. Seema Devi @ Dolly (supra) relied upon by  learned counsel for the respondent is concerned, it is held by the Patna High Court that the institution of criminal case by the wife per-se would not constitute cruelty for seeking divorce. In the said matter, the criminal case was still pending adjudication before the Criminal Court of competent jurisdiction when the marriage petition for divorce was heard by the Family Court. In that context, the Patna High Court took a view that merely because criminal case was filed, it would not amount to cruelty. In this case, the criminal case was not only rejected, the order passed by the learned Magistrate First Class has been upheld by the learned Additional Sessions Judge as well as by this Court. The said judgment of the Patna High Court in my view, thus would not apply to the facts of this case and does not assist the case of the respondent.
  26. Insofar as substantial question of law framed by this Court is concerned, the same is accordingly answered in negative.
  27. In my view, the order passed by the lower appellate Court is totally erroneous and contrary to law laid down by the Supreme Court and this Court holding that if the wife had filed a false case against the husband and his family members in which the appellant husband and his family members are acquitted, it amounted to cruelty and the husband on the said ground was entitled to seek divorce. The impugned order passed by the lower appellate Court thus deserves to be set aside.
  28. I therefore pass the following order :-
  29. a)  Second Appeal No.634 of 2013 is allowed. The impugned order and judgment dated 7th August, 2010 passed by the Additional  District Judge, Palghar in Civil Appeal No.7 of 2008 is set aside. b). The judgment and decree passed in Marriage Petition No.52 of 2005 dated 31st January, 2008 passed by the learned Civil Judge, Senior Division, Palghar is restored to file. Marriage Petition No.52 of 2005 is decreed.

c). NO order as to costs.
(R.D. DHANUKA, J.)

 

At the request of learned counsel for the respondent, the operation of this order is stayed for a period of eight weeks from today.
(R.D. DHANUKA, J.)

 

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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Divorce WITHOUT alimony 4 False 498a where all acquited. Not necesary 4 trial court call 498A false. Bom HC 

Hon Bom HC grants Divorce WITHOUT alimony following a wife’s 498a where all accused are acquitted. While the lower court denies divorce stating that the 498a ended in acquittal because the prosecution did not prove the case, the Hon HC says it is NOT necessary 4 trial court to call the 498A false. Cruelty is to be decided based on conduct of parties and allegations made !!

 A wife files a false 498A cocktail on her husband. Husband and other accused are made to run to the trial court more than 50 times. Elders at home with various ailments and his unmarried sister are charged. The complainant / wife fails to appear many times at the Criminal court, thereby lengthening the trial. Trial court finally decrees that the accusations in the 498a case as NOT proven by the prosecution and so the husband and co are acquitted. 

Following this acquittal the husband applies for divorce on grounds of cruelty. The Family court refuses to grant divorce. Matter goes up to HC where HC appreciates the facts and grants divorce

Key excerpts

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The Husband submits and the HC observes that the accused were dragged 56 times to the Trial court, and on many instances because the wife was just absent !  The wife alleges that she started suffering arthritis becasue of ill treatment and her father died out of shock. But these allegations are NOT substantiated. The father dies some YEARS after the incidents !!

The husband submits : “…..My family members and I had to seek leave from our job and had to remain present in the Court. My parents and me who are suffering from health problems like B.P., Eyesight problem, Piles (Father) also had to remain present and sit for hours together waiting for the Respondent to come or for the Honourable Judge to give the next date. All this has affected me mentally and physically. I have not been able to concentrate on my work owing to the health problems of my parents and the court case. My unmarried sister also had to come to the court, for no faults of hers. My brothers were unnecessary involved in this trauma, which they too had to undergo, without the remotest connection with this case. I state that the entire ordeal which went on for 3 years, has caused immense mental cruelty upon me.

Further, I was helpless as my family members also suffered because of this false case. For no fault of my family members, and me had to undergo the immense stress of fighting out a Court case….”

The Hon court also notices that wife’s other allegations are either bald or left un substantiated “Except for the bald statement that from 28 th June 2000 to 8th January 2001, the Appellant and his family members ill-treated her, no particulars of alleged ill treatment have been set out except for stating that, on 7th January 2001, the Appellant picked up quarrel with on flimsy ground. It is alleged that the Appellant demanded money from the Respondent’s father for acquiring a flat. There are two allegations of serious nature which are made in the written statement. The first is that due to mental and physical ill-treatment given by the Appellant to the Respondent and her relatives, the Respondent started suffering from arthritis since May 1999. The second allegation is that the Appellant and his family members treated the Respondent with cruelty and that due to shock, her father expired on 22nd March 2003…..”

The Hon court concludes that “..The Respondent’s father died on 22 nd March 2003. Even a casual connection between the alleged acts of cruelty and the death of the father has not been established. We have no hesitation in holding that the both the defamatory allegations are of very serious nature. The allegations could not be substantiated. The said allegations are reckless allegations made by the Respondent wife….”

The Honourable court finally concludes that “…b) The Appellant and his family members were required to attend Criminal Court on 56 different dates from the year 2001 to 2004. Considering the manner in ash 25 fca-71.06 which the criminal case proceeded, the Appellant and his family members were subjected to humiliation, trauma and agony as set out in the deposition of the Appellant;

(c) The Respondent made a very serious defamatory allegation against the Appellant, both in the written statement and in her evidence, that due to ill-treatment by the Appellant, she started suffering from arthritis. The Respondent made no efforts to substantiate the said allegation. Thus, the Respondent made unfounded defamatory allegation against the Appellant;

(d) The Respondent made another serious allegation against the Appellant,both in the written statement and in her evidence, that due to harassment suffered by her from the Appellant, her father suffered shock which lead to his death. Not only that the Respondent did not substantiate the said allegation, even the cause of death of her father was not brought on record. Even this allegation is an unfounded defamatory allegation;

We have no hesitation in holding that the aforesaid conduct amounts to mental cruelty to the Appellant and by reason of such mental cruelty, he is not reasonably expected to continue cohabitation with the Respondent…”

and grants the husband divorce. The court ALSO refuses to grant ANY alimony to the wife !!

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO.71 OF 2006

 

Mr. M   .. Appellant

Vs

Mrs. M  .. Respondent
Shri Abhijit Sarwate along with ms. Kokila Kalra for the Appellant.

Shri M.A. Utagikar for the Respondent.
CORAM : A.S. OKA & S.C. GUPTE, JJ

DATE ON WHICH SUBMISSIONS WERE HEARD :  27TH NOVEMBER 2013

DATE ON WHICH JUDGMENT IS PRONOUNCED:  7TH FEBRUARY 2014

JUDGMENT ( PER A.S. OKA, J )

  1. By this Family Court Appeal, the Appellant husband has taken an exception to the judgment and decree dated 5 th April 2006 passed by the learned Judge of the Family Court, Pune. We have blocked the names of the parties for the benefit of the parties considering the rival allegations.
  1. The Appellant husband filed a Petition for seeking a decree of divorce under Clause (ia) of Sub-section (1) of Section 13 of the Hindu Marriage Act, 1955. The marriage was solemnized on 3rd July 1998. The divorce was sought on the ground of cruelty. The ground of cruelty is based on the allegation that a false prosecution was initiated at the instance of the Respondent against the Appellant and his family members for the offence punishable under Section 498-A of the Indian Penal Code. In the Petition for divorce, the Appellant has set out various details and has alleged that the manner in which the prosecution was conducted caused enormous mental cruelty to him and to his family members. It is pointed out that the prosecution resulted into the acquittal. The Respondent wife denied the allegations by filing a written statement. The Appellant examined himself. The Respondent examined herself. The Appellant examined two other witnesses. The Respondent also examined one witness. The learned Judge of the Family Court held that the Appellant failed to substantiate the allegations of cruelty.
  1. The learned counsel appearing for the Appellant has taken us through the pleadings and the notes of evidence. He pointed out the consistent conduct of the Respondent as reflected from the evidence on record. He also invited our attention to the judgment and order of the Criminal Court by which the Appellant and his family members were acquitted in a case where allegations against the Appellant and his family members were of the commission of the offence punishable under Section 498-A of the Indian Penal Code ( for short “IPC”). He submitted that filing of such a false case against the Appellant and his family members and the manner in which the case was conducted caused mental cruelty to the husband. He relied upon a decision of the Division Bench of this Court in the case of Nitin Ramesh Dhiwar v. Sou. Roopali Nitin Dhiwar1. He also relied upon an unreported decision of this Court in the case of Nagesh Dhanapp Chikanti v. Sau.Manisha Nagesh Chilkanti2. He relied upon a decision of the Apex Court in the case of V. Bhagat Vs. Mrs. D. Bhagat3. He pointed out that in the written statement, the wife has alleged that due to the mental and physical ill-treatment of the Appellant, she suffered from arthritis. He also pointed out that in the written statement, the wife has alleged that due to the ill treatment given to her by the Appellant and his family members, her father suffered a shock and due to shock, he expired on 22nd March 2003. The learned counsel urged that these unsubstantiated allegations of serious nature caused mental cruelty to the Appellant-husband.
  1. The learned counsel appearing for the Respondent submitted that mere acquittal in the prosecution under Section 498-A of the IPC by itself will not amount to cruelty. Inviting our attention to the judgment of the Criminal Court, he urged that there is no finding recorded by the Criminal Court that the allegations made by the Respondent wife were false. He submitted that the only finding recorded by the learned Magistrate is that the prosecution could not establish the ingredients of the offence on the basis of evidence on record. He submitted that no other allegation of cruelty has been substantiated. The learned counsel appearing for the Respondent wife submitted that even if this Court is inclined to take a view that the allegations of cruelty are proved, this is a fit case to grant permanent alimony under Section 25 of the Hindu Marriage Act, 1955 ( for short “the said Act”).

 

  1. As far as the plea of the Respondent for grant of permanent alimony under Section 25 of the said Act is concerned, the learned counsel for the Appellant relied upon a decision of the Division Bench of this Court in the case of Smt. Sudha Suhas Nandanvankar v. Suhas Ramrao Nandanvankar4. He urged that when it is established that the wife has harassed the husband, the Court must decline to grant permanent alimony under Section 25 of the said Act. He also relied upon a decision of the Apex Court on this aspect in the case of Deb Narayan Halder v. Smt. Anushree Halder5. In the said decision, the Apex Court held that a wife who leaves matrimonial home without any justification is not entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973.

 

1 2012(7) ALL MR 315

3 AIR 1994 SC 710(1)

4 AIR 2005 Bombay 62

5 AIR 2003 SC 3174

 

  1. We have given careful consideration to the submissions. We have perused the pleadings, notes of evidence as well as the record of the case. It will be necessary to make a reference to the averments made in the Petition for divorce filed by the Appellant. The affidavit in-lieu of examination-in-chief of the Appellant is virtually a replica of the Petition. The marriage between the parties was solemnized on 3 rd July 1998. It appears from his pleadings and evidence that the first dispute between the parties was during the Diwali of 1998. It is alleged that contrary to the wishes of the Appellant, the Respondent proceeded along with her brother to her parents’ house at Solapur. A reference is made to certain petty quarrels between the Appellant and the Respondent.

 

  1. It is alleged that in October 1998, the Respondent’s father called up the Appellant in his office and abused him by making allegation against him that he is not properly looking after the Respondent. It is alleged that in September/October 1998, the Respondent accompanied by her father and his cousins Sudhir and Pradeep visited the Appellant’s office and fought with him. It is alleged that for a period of one year, the Respondent was away from her matrimonial home and she returned to the matrimonial home in the second week of June 2000. After she returned, there was a quarrel between the parents of the Appellant on one hand and the Respondent and her mother on the other hand. On 22 nd June 2000, the Respondent and her family members lodged a complaint with the Women’s Cell, Commissioner Office at Pune. It is stated that the Respondent was suffering from arthritis and therefore, the Appellant had taken the Respondent to their family doctor. Thereafter, the Appellant took her to a specialist. It is alleged that it is during this period, a complaint was lodged by the Respondent and her family members by approaching women’s cell.

 

  1. The next important incident alleged in the Petition for divorce is of 8th January 2001. It is alleged that on that day, the Respondent’s father, her cousins Satish, Sudhir and Dilip visited the appellant’s house in the afternoon. At that time, the Respondent was sleeping. Satish went in the room where she was sleeping and woke up the Respondent. It is alleged that the Respondent packed the ornaments and other articles given to her in a suitcase and she handed over the said suitcase to Satish who kept the same in his vehicle which was parked outside the house. It is alleged that Dilip uttered derogatory words to the Appellant’s father describing him as a “beggar”. It is stated that the Respondent on that day left the matrimonial home with the bag and baggage and on the very day, she lodged a complaint at Samarth Police Station alleging offence punishable under Section 498-A of the IPC against the Appellant, his parents, his brothers and his sister. An order of acquittal was passed by the learned Magistrate on 16th September 2004. Material allegations based on the said prosecution are in Paragraphs 17, 18 and 22 of the affidavit in lieu of examination-in-chief, which read thus:

 

“17. All the accused ( I and my entire family ) had appeared before the Ld. Judge and were granted bail on 29/3/2001. Since then I and my family members appeared before the Ld. Judge on 21/4, 25/5, 17/5, 13/6, 20/7, 10/8, 12/9, 25/10, 20/12 in the year 2001. Similarly I and my family members appeared before the Court, on 26/2, 30/3, 12/6, 2/7, 23/7, 16/8, 12/9, 4/1C, 23/10, 21/11, 4/12 in the year 2002. Similarly I and my family members appeared before the Court, on 3/1, 17/1, 11/2, 20/2, 11/3, 21/3, 9/4, 24/4, 6/5, 19/5, 18/6, 3/7, 16/7, 8/8/ 4/9, 25/9/ 17/10, 7/11, 21/11, 1/12, 19/12 in the year 2002. Similarly I and my family members appeared before the Court, on 8/1, 23/1, 11/2, 23/2, 11/3, 12/4, 27/4, 25/5, 3/6, 10/6, 21/6, 28/6, 2/7, 3/7, 9/7, 16/7, in the year 2004.

  1. The Respondent, who was the complainant in the case, remained absent on numerous occasions and the matter was prolonged hence.

My family members and I had to seek leave from our job and had to remain present in the Court. My parents and me who are suffering from health problems like B.P., Eyesight problem, Piles (Father) also had to remain present and sit for hours together waiting for the Respondent to come or for the Honourable Judge to give the next date. All this has affected me mentally and physically. I have not been able to concentrate on my work owing to the health problems of my parents and the court case. My unmarried sister also had to come to the court, for no faults of hers. My brothers were unnecessary involved in this trauma, which they too had to undergo, without the remotest connection with this case. I state that the entire ordeal which went on for 3 years, has caused immense mental cruelty upon me.

Further, I was helpless as my family members also suffered because of this false case. For no fault of my family members, and me had to undergo the immense stress of fighting out a Court case. 

In such circumstances, filling of a false complaint, the trauma of facing th trial and victory of right over wrong, all amount to cruelty. By acquittal of all the accused i.e. my family, and I state that I have suffered irretrievable loss and irreparable damage and have cruelty of the highest nature.”

  1. As stated earlier, the affidavit in-lieu of examination-in-chief is a replica of a Petition for divorce. The allegation is that filing of a false complaint and the trauma of facing the trial amounted to cruelty. It is alleged that the Appellant took good care of the Respondent but the Respondent inflicted cruelty upon the Appellant.
  1. In her written statement, the Respondent contended that she became aware of the order of acquittal passed on 16 th September 2004 from the averments in the Petition for divorce. With reference to the allegation that the Respondent left the matrimonial home on 8 th January 2001, the contention raised in the written statement is that in fact the Respondent was badly treated by the Appellant and his family members and that she was driven out from her matrimonial home. In Paragraph 17 of the written statement, various instances of ill-treatment given to the Respondent have been set out. It is stated that due to mental and physical ill-treatment by the Appellant and his relatives, the Respondent suffered from arthritis. It is contended by the Respondent that the Appellant deserted the Respondent from 4 th June 1999 to 28th June 2000. She stated that on 5 th November 1999, her father filed a Petition before the President of their Community. The Panchas of the Community had called upon the Appellant to attend meetings but he had refused to attend. It is alleged that the Appellant and his family members treated her with cruelty. Due to the shock, Respondent’s father died on 22nd March 2003. https://twitter.com/atmwithdick http://evinayak.tumblr.com/ https://vinayak.wordpress.com/
  1. As regards what transpired from 22 nd June 2000, in clauses (f) and (g) of Paragraph 17 of the written statement, the Respondent has stated thus:-

“(f) On 22.6.2000 on the occasion of birthday of petition the respondent tried to contact him on phone but petitioner did not respond. So on 24.6.2000 the father of respondent was compelled to give complaint applicant to Mahila Police, Pune. During enquiry of this complaint application the petitioner was called for at that time to avoid the police case the petitioner showed his willingness and gave a guarantee of his good behavior with respondent and as such he took the respondent for cohabitation to his house on 28.6.2000. The respondent was residing there till 8th Jan. 2001. During this period also the behavior of the petitioner and his family members was not changed. On the contrary there was grudged in the mind of the petitioner and his family members that the respondent approached the police and so all of them were ill-treating her. That the Petitioner was not allowing the matrimonial relations as husband and wife with the respondent without any reason. As such the cruel behavior of the petitioner and his family members were continued. 

(g) On 7.1.2001 petitioner picked quarrel on flimsy ground with respondent and he insisted the respondent to go out of house. And in that quarrel he expressed that she should bring money from her father for Flat otherwise she is of no use. At that time brother of petitioner Vijay rushed towards the respondent for assaulting her. That due to this incident the respondent called her father on phone. When the father and brother of respondent came to the house of petitioner at that time the petitioner and his family members insulted them and abused them and as such she was driven away from his house without any reason. As such the petitioner has deserted her since Jan 2001, That the petitioner and his family members treated her with cruelty. Dur to this shock the father of respondent expired on 22.3.2003. The facts contrary to this real position, mentioned in petition of the petitioner are absolutely false and are denied by the respondent.”

  1. From the pleadings, it appears that there are allegations and counter-allegations. The stand of the Respondent is that from 4 th June 1999 till 28th June 2000, the Appellant deserted her. It is stated that the Respondent returned to her parent’s home on 4 th June 1999 for the purposes of attending the marriage of her brother which was to be solemnized on 29th June 1999. Thereafter, the Appellant deserted her till 28th June 2000. The Respondent claims that on 24 th June 2000, her father was compelled to file a complaint to Mahila Police Station, Pune, where the Appellant was called who showed willingness to co-habit with the Respondent and accordingly on 28 th June 2000, he resumed cohabitation with the Respondent which continued till 8 th January 2001. Except for the bald statement that from 28 th June 2000 to 8th January 2001, the Appellant and his family members ill-treated her, no particulars of alleged ill treatment have been set out except for stating that, on 7th January 2001, the Appellant picked up quarrel with on flimsy ground. It is alleged that the Appellant demanded money from the Respondent’s father for acquiring a flat.

There are two allegations of serious nature which are made in the written statement.

The first is that due to mental and physical ill-treatment given by the Appellant to the Respondent and her relatives, the Respondent started suffering from arthritis since May 1999. The second allegation is that the Appellant and his family members treated the Respondent with cruelty and that due to shock, her father expired on 22nd March 2003.
The learned counsel appearing for the Appellant submitted that such allegations of serious nature have remained unsubstantiated, which amount to causing mental cruelty to the Appellant.

  1. Therefore, it will be necessary to make a reference to the deposition of the Respondent which is in the form of affidavit in lieu of examination-in-chief. The allegation regarding the Respondent suffering from arthritis finds place in Paragraph 8 of the affidavit in lieu of examination-in-chief. In Paragraph 10, it is alleged that her father died due to shock. In Paragraph 17, the Respondent has stated that she was ready and willing to cohabit with the Appellant even on the date of filing of the affidavit in lieu of the examination-in-chief.
  1. It will be necessary to peruse the cross-examination of the Respondent. In Paragraph 15, she has stated that she has not produced any document to show that because of the harassment by the Appellant, she suffered from arthritis. She admitted that she had taken treatment from Dr. Bhagali, Dr. Salunke, Dr. Chopra, Dr. Jeurkar and Dr. Pai for arthritis. In Paragraphs 17 and 18, the Respondent was cross-examined on the incident of 8 th January 2001. Paragraphs 17 and 18 of the deposition read thus:-

“17. It is not correct to say that on 8/1/2001 after our lunch my parents came to the house of petitioner. It is not correct to say that at that time I served them with tea. I do not remember at the time when they came to the house of petitioner. But they might have come at 12.30 pm. In the evening of 7.1.2001 I gave phone call to my parents, ash 13 fca-71.06 from outside. My one relation Baddies staying at Karvenagar, Pune. It is true that sister of wife of my brother is also staying at Pune. My maternal uncle Katawe is staying is Gurwar Peth of Pune. When I gave phone call to my father on 7/1/2001 I was neither happy nor weeping. I did not tell my father on phone to start immediately.

  1. It is true that whenever my parents requested the petitioner for visit to their house at Solapur, he told them that he could not as he had work in the office. I cannot tell whether petitioner is hard worker. It is true that sometime he worked full week of 7 days in the office and sometimes duty on out station.

It is true that his brother Vijay and Devendra and his sister Rajashree were also employed. It is not correct to say that on 8/1/2001 except the parents of the petitioner nobody from his family was present in the house. It is true that on that day the petitioner and his sister Rajashree were not present in the house.”

  1. In the cross-examination, she admitted that her father had made an application to the President of her Community for requesting them to persuade the Appellant to resume cohabitation. In Paragraph 25 of her cross-examination, she stated that even in the criminal case, she expressed a desire for cohabitation. She further stated that in the criminal case, the evidence of her father, uncle, cousins and two other witnesses was recorded. She admitted that she deposed in the criminal case and the Court did not prevent her from adducing oral and documentary evidence. She stated that the Public Prosecutor did not prevent her from adducing the evidence. Though she stated that an ash 14 fca-71.06 Appeal against acquittal was filed, she was not possessing the papers of that Appeal. In Paragraph 30 of the cross-examination, she admitted that she never thought of filing a complaint against the Appellant till her father gave a complaint to Woman’s Cell. She stated that she had come with contact of P.I. Savita Turekar. She stated that she complained to the said PI that the Appellant was not keeping sexual relationship with her. She admitted that when she filed a complaint with the Police Station, her father and brother Satish were with her. She stated that she directly went to the Police Station from the house of the Appellant on 8th January 2001.
  1. At this stage, it will be necessary to make a reference to the complaint filed by the Respondent’s father with the Community. The said complaint is at Exhibit-74. In the said complaint, there is no allegation of cruelty made against the Appellant. It is alleged that the Appellant’s mother and sisters have misguided the Appellant and have tried to instigate him to fight with the Respondent. In fact, the allegation made in the said letter is that no efforts were made by the Appellant and his relatives to ensure that the cohabitation is resumed. Therefore, a request was made by him to the President of the Community to make efforts for reconciliation. The date of the complaint is 5th November 1999. From various documents on record which include the minutes of the meeting of Panchas of the Community ash 15 fca-71.06 it appears that that till 30th January 2000, the Respondent and her father were attending the meetings of the Committee. Minutes of the meeting held on 30th January 2000 are at Exhibit-86. Even according to the case of the Respondent, on 28th June 2000, the parties resumed cohabitation.
  1. The certified copy of the deposition of the Respondent in the criminal case is on record. The attention of the Respondent was invited to the said deposition in her cross-examination before the Family Court. In the cross-examination, she admitted that the Appellant used to accompany her when she was taking treatment from Dr. Chopra for arthritis.
  1. Perusal of the judgment of the learned Magistrate which is at Exhibit-41 shows that the learned Magistrate has taken into consideration the evidence of the prosecution witnesses. The learned Magistrate has recorded a finding that the ingredients of the offence have not been established.
  1. Careful perusal of the evidence of the Respondent in the criminal case shows that no allegation of any acts of cruelty on the part of the Appellant’s parents, his brother and sisters have been alleged for the period subsequent to 28th June 2000 when the parties resumed to cohabitation. An allegation is made that the Appellant demanded that ash 16 fca-71.06 the Respondent’s father should give him a flat worth Rs.3,00,000/- to Rs.4,00,000/- or at least give him the said amount. In her cross-examination before the learned Magistrate, she admitted that she never made any complaint about the demand of flat or money by the Appellant till December 2000. In the written statement before the Family Court, the Respondent has not stated that the Appellant demanded a flat worth Rs.3,00,000/- to Rs.4,00,000/-. It is alleged that he demanded money from her father for acquiring a flat. Hence, this allegation regarding the demand of money for a flat is not substantiated by the Respondent.
  1. We have already adverted to the statements made in Paragraph 17 of the deposition of the Appellant as to how the criminal case proceeded. He has stated that he along with his family members appeared before the learned Magistrate on 9 dates in the year 2001, on 10 dates in the year 2002, on 21 dates in the year 2003 and on 16 dates in the year 2004. The trauma undergone by the Appellant and his family members have been set out in Paragraphs 17 and 18. On both the paragraphs, there is hardly any cross-examination. Though the Respondent came out with a case that she has preferred an appeal against the acquittal, she could not give any particulars and even could not produce a copy of the appeal preferred either by her or by the State Government.
  1. Thus, what can be concluded is that the Appellant could not substantiate her allegation of cruelty against the Appellant and his family members in the criminal prosecution. The case made out before the Family Court by the Respondent was that she was always interested in resuming cohabitation and she was willing to do so even when the cross-examination was being recorded in the criminal case.  As stated earlier, in the criminal case, the Respondent did not make any specific allegation against the accused persons except the Appellant. The allegation against the Appellant regarding the demand of flat and money appears to be an afterthought. Till 30 th January 2000, the Respondent and her father were attending meetings convened by the Community for the purposes of reconciliation. Thereafter, parties stayed together only from 28th June 2000 to 8th January 2001. Even before Family Court, the Respondent has not not substantiated her case as regards ill treatment by the Appellant during this brief period of about six months. We have already stated that for a period of four years the Appellant and his family members were forced to attend the Court of the learned Magistrate. The agony, trauma and humiliation undergone by the Appellant and his family members due to the criminal prosecution has been narrated by the Appellant. The version of the Appellant on this aspect will have to be accepted.
  1. The specific allegation made in the written statement that the Respondent started suffering from arthritis due to ill-treatment given to her by the Appellant is not at all established. The Respondent has admitted that for taking treatment for arthritis, she consulted several doctors. She did not examine any doctor to substantiate the said allegation regarding the cause of arthritis. Even the other allegation in the written statement that her father died due to shock on account of ill-treatment given to the Respondent has remained unsubstantiated. These are very serious allegations made in the written statement. From 8th January 2001 , the parties admittedly resided separately. It not even an allegation made by the Respondent that after 8th January 2001, there was any harassment by the Appellant. The Respondent’s father died on 22 nd March 2003. Even a casual connection between the alleged acts of cruelty and the death of the father has not been established. We have no hesitation in holding that the both the defamatory allegations are of very serious nature. The allegations could not be substantiated. The said allegations are reckless allegations made by the Respondent wife. https://twitter.com/atmwithdick http://evinayak.tumblr.com/ https://vinayak.wordpress.com/
  1. In the case of Samar Ghosh v. Jaya Ghosh6, illustrations of mental cruelty have been set out in Paragraph 101, which reads thus:

“101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human 6 (2007)4 SCC 511 ash 19 fca-71.06 behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

  1. In the case of K. Srinivas Rao v. D.A. Deepa7 (2013)5 SCC 226, in Paragraph 16, the Apex Court held thus:

“Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.” (emphasis added)

7 (2013)5 SCC 226

8 (2010)4 SCC 476

  1. In the case of Ravi Kumar v. Julmi Devi8, in Paragraphs 19 and 20, the Apex Court held thus:

“19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, some time it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.

  1. Therefore, cruelty in matrimonial, behaviour ig defies any definition and its category can never be closed. Whether husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any pre-determined rigid formula. Cruelty in matrimonial cases can be of infinite variety – it may be subtle or even brutal and may be by gestures and words. That possibly explains why Lord Denning in Sheldon v. Sheldon held that categories of cruelty in matrimonial cases are never closed.” (emphasis added) 

The learned counsel appearing for the Appellant relied upon an unreported decision of this Court in the case of Nagesh Dhanapp Chilkanti (supra). In Paragraph 9, the Division Bench held thus:

“9. The appellant has categorically deposed in examination in chief before the Family Court that by filing of false complaint for alleged commission of offence under Sec. 498-A of IPC the respondent has falsely prosecuted the appellant and his family members. The cross examination of the appellant indicate that the fact of acquittal of the appellant and his family members was never disputed and as such the Family Court ought to have proceeded to ash 23 fca-71.06 accept the contention of the appellant that false criminal cases were filed against the appellant and his family members with a view to cause utmost embarrassment, humiliation and sufferings. Filing of false criminal cases against the appellant and his family members would very much constitute mental cruelty.”

  1. Now coming back to the case in hand, the Respondent has not substantiated allegations of cruelty in her evidence. She could not substantiate the allegations even in the criminal Court. Only witness examined by her is Mr.V who was a member of Nyaya Nivada Samiti of Shri Som Wanshiya Sahastrajur Kashatriya Samaj Seva Mandal in the year 1999. He deposed regarding the application made by the Respondent’s father to his Community which is at Exhibit-74. He deposed regarding the proceedings before the Nyaya Nivada Samiti. He has stated that though various notices were sent by the Committee, there was no response from the Appellant. Even taking the said evidence as correct, the same does not help the Respondent to establish allegations of cruelty made by her. We have already noted earlier that in the application at Exhibit 74, there was no allegation against the Appellant of cruelty and in fact, the request of the father was to make an effort to resume cohabitation.
  1. As held by the Apex Court, whether a particular act will constitute cruelty or not will depend upon the facts and circumstances of each case. Whether an order of acquittal in criminal prosecution lodged at the instance of the spouse amounts to cruelty will depend upon the facts and circumstances of each case. Whether the criminal Court has recorded a finding that the prosecution case was false is again not a clinching factor. Considering the evidence on record, the Matrimonial Court will have to decide whether the prosecution which resulted into acquittal will amount to an act of cruelty. In a given case, depending upon the evidence on record, even if the acquittal is on the ground that the charge could not be substantiated and even if there is no finding recorded by the Criminal Court that the prosecution case was false, there can be a case of cruelty. It depends on the manner in which the complaint is filed and prosecuted.
  1. Therefore, the scenario which emerges can be summarized thus:

(a) the Appellant established that the Respondent could not substantiate the allegations of cruelty in the criminal case. Even the allegations of cruelty made by the Respondent in the written statement in the present case could not be established by her;

(b) The Appellant and his family members were required to attend Criminal Court on 56 different dates from the year 2001 to 2004. Considering the manner in ash 25 fca-71.06 which the criminal case proceeded, the Appellant and his family members were subjected to humiliation, trauma and agony as set out in the deposition of the Appellant;

(c) The Respondent made a very serious defamatory allegation against the Appellant, both in the written statement and in her evidence, that due to ill-treatment by the Appellant, she started suffering from arthritis. The Respondent made no efforts to substantiate the said allegation. Thus, the Respondent made unfounded defamatory allegation against the Appellant;

(d) The Respondent made another serious allegation against the Appellant,both in the written statement and in her evidence, that due to harassment suffered by her from the Appellant, her father suffered shock which lead to his death. Not only that the Respondent did not substantiate the said allegation, even the cause of death of her father was not brought on record. Even this allegation is an unfounded defamatory allegation;

  1. We have no hesitation in holding that the aforesaid conduct amounts to mental cruelty to the Appellant and by reason of such mental cruelty, he is not reasonably expected to continue cohabitation with the Respondent.
  1. Now turning to the impugned judgment, we find from Paragraph 16 thereof, the learned Judge seems to have proceeded on the footing that merely because there was an order of acquittal, it was not sufficient to draw an inference that the case is false.
  1. The learned Judge of the Family Court has not at all appreciated the case in the right prospective and he seems to have over simplified the matter.
  1. As the Respondent has failed to prove the allegations of cruelty against the Appellant and she has failed to prove that it was the Appellant who had deserted the Respondent, the bar under Section 23(1) of the said Act will not apply in the present case.
  1. Learned counsel appearing for the Appellant has made submissions on the issue of grant of permanent alimony under Section 25 of the said Act. The learned Judge of the Family Court decided the ash 27 fca-71.06 case in the year 2006. There is no evidence on record as regards the present income of the Appellant. Under Section 25 of the said Act, the wife can seek permanent alimony even after passing of a decree of divorce. In this Appeal, it will be unjust to record a finding regarding entitlement of the Respondent to receive permanent alimony. We, therefore, propose to grant liberty to the Respondent to file a separate application under Section 25 of the said Act by keeping all the contentions of the parties open. It is obvious that the concerned Court will have to take into consideration the findings recorded in this judgment while deciding the application made by the Respondent. https://twitter.com/atmwithdick http://evinayak.tumblr.com/ https://vinayak.wordpress.com/
  1. Accordingly, the Appeal must succeed and we pass the following order:

ORDER :

(a) The impugned judgment and decree dated 5th April 2006 is quashed and set aside;

(b) The marriage solemnized between the Appellant and the Respondent on 3rd July 1998 stands dissolved by a decree of divorce under Clause (ia) of Sub-section (1) of Section 13 of the Hindu Marriage Act, 1955;

(c) To that extent, the Petition No.A-100 of 2005 stands allowed;

(d) It will be open for the Respondent to make an application to the appropriate Trial Court for grant of permanent alimony under Section 25 of the Hindu Marriage Act, 1955; If such application is made, the same will be decided on its own merits in the light of igthe observations made in this judgment ;

(e) The Appeal is allowed on above terms;

(f) There will be no order as to costs.

 ( S.C. GUPTE, J )   

 ( A.S. OKA, J ) 

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