Wife filed #false #criminal #cases on the husband and also made #FALSE allegations of EXTRAMARITAL relations by husband
Hon Allahabad HC held that false allegations, false cases and subsequent arrest amount to mental cruelty and the husband is entitled to Divorce under section
Allahabad High Court
Smt. Sadhana Srivastava Wife Of … vs Sri Arvind Kumar Srivastava Son Of … on 6 September, 2005
Equivalent citations: AIR 2006 All 7, 2006 (1) AWC 177, II (2005) DMC 863
Author: K Murari
Bench: R Misra, K Murari
JUDGMENT Krishna Murari, J.
1. This appeal under Section 19 of the Family Courts Act is directed against the judgment and decree passed by the Family Judge, Varanasi in matrimonial suit No. 177 of 1992, whereby the suit for a decree of divorce instituted by the respondent husband Sri Arvind Kumar Srivastava against the appellant wife Smt. Sadhana Srivastava has been decreed.
2. The case set up by the respondent hupband was inter-alia that parties to the suit were Hindu and were married according to Hindu rites on 2.5.1985. Out of the wedlock two sons were born on 10.7.1987 and 15.12.1988 respectively. From the very beginning of the marriage the behaviour and attitude of the appellant-wife towards the respondent-husband, his patents and other family members had been inhuman and intolerable which culminated into separation of the elder brother of the husband from the family. The wife was always on a look-out to remain at her parent’s place more than that at the matrimonial home She had been in the habit of keeping the husband under mental torture either by teasing his parents or spreading frivolous stories in the family which amounted to cruelty. On account of such recklessness behaviour of the wife the life of the husband-respondent became miserable. It was also alleged that in June, 1990 she left the husband’s place along with his younger son under pretext of the illness of her mother. When all persuasion to bring her buck proved futile, proceedings under Section 9 of the Hindu Marriage Act (for short the Act’) for restitution of conjugal rights were initiated which was, contested by her. It was further pleaded that elder brother of the wife who is an advocate lodged an FIR under Sections 498A, 120B and 506 I.P.C on 19.1.1991 which was registered as case crime No. 13 of 1991 naming entire family members as accused. They were arrested and ultimately, bailed out by Xth Additional Chief Judicial Magistrate. Varanasi. The bail order was challenged by the brother of the wife before the District & Sessions Judge, Varanasi and the bail was cancelled and the accused were directed to surrender themselves before the court. The order of the District & Sessions Judge canceling the bail was challenged before this court by filing revision which was disposed of vide order dated 17.5.1991 directing the court below to, bail out the accused on the same day and to release them on personal bond. In pursuance to the aforesaid direction, the Chief Judicial Magistrate, Varanasi directed the release on 29.5.1991 on furnishing personal bond of Rs.3000/- each. It has also been alleged that police has submitted a final report in the matter on 25.2.1992. Further allegations made in the petition go to show that proceedings Under Section 25 of the Guardianship and Wards Act for custody of the minor children was also initiated by the wife and the husband both which were being hotly contested by them. It has been alleged that on the intervention of the respectable member of the community a compromise was arrived at between the parties on 4.5.1992. All the proceedings under the Hindu Marriage Act & Guardianship and Wards Act between the parties were finally disposed of in terms of the compromise. It has further been alleged that the appellant-wife committed murder of the younger son on 17.6,1992 for which an FIR was lodged by the respondent-husband which was registered as case crime No. 211 of 1992 under Section 302 I.P.C. The appellant-wife was arrested by the police. She was bailed out by this court on 5.11.1992. During the course of the argument, we have been informed that the wife has been acquitted of the said offence. However, criminal appeal filed by the State is pending before this court. It was further pleaded in the petition that the aforesaid acts have cause great mental pain and he was totally broken down and thus a decree be passed on the ground of cruelty.
3. The appellant-wife in her written statement denied the allegations of cruelty made by the husband in the petition for divorce. However, the fact of various litigation both civil and criminal between the parties and the compromise was admitted in the written statement.. In the additional pleas it was pleaded that behaviour of the respondent-husband was utterly dissatisfactory and against the pious relationship of the husband and wife and she was made target of shots of torture mentally, physically by all possible means by the husband, his parents, his elder brother and elder brother’s wife. Allegations of having an illicit and extra marital relation with one Km. Nitu Mehta @ Shalini, the sister of his elder brother’s wife were also made. It was also pleaded that; husband wanted to give elder son in adoption to his brother who’ was issueless. However, because of unwillingness and resistance put by wife, the husband could not succeed. It was further pleaded that husband found the presence of the wife and children as a hurdle in free access to Km Nitu @ Shalini and as such his behaviour became very undesirable to the extent that several times the wife and minor children were assaulted and beaten for no fault and without justification. On 9th June, the wife and children were abused and beaten and thrown out of the house and since then the husband never cared to maintain them. It was further alleged that on 18.1.1991 the husband with the help of softie undesirable elements forcibly took away the elder son. The wife also made allegation in the written statement that the husband himself was responsible for the murder of the younger son.
4. Thus it would be seen that both wife as well as the husband have accused each other for the murder of the younger son. Since the dispute is pending adjudication before criminal appellate jurisdiction of this court, we have refrained ourselves from making any comments with regard to incident as the same may adversely affect the said proceedings.
5. The respondent-husband got himself examined in the proceedings. He stated that after about six months of marriage the behaviour of the wife started becoming bad to worse. She used to pick up fight for no rhyme and reason’ and abused the parents also. She used to extend threat in the name of her brother who was an advocate. The husband denied that his elder brother’s wife had any sister named Nitu and he was not knowing any other girl of that name, He also denied that he ever neglected to take care of the wife or the children or behaved with them in arty cruel manner. He also denied that he ever wanted to give his son in adoption to his elder brother. One Lalji Srivastava, a neighbour of the husband also appeared in the witness box and deposed that after about five to six months of marriage there was frequent fight between the two. He also stated that wife used to beat her children badly and very often did not cook any food as a result, the husband had to go to office without any food.
6. The wife also got herself examined. Apart from stating other things, she categorically stated that the husband was having illicit relationship with Nitu Mehta, the sister in law of the husband’s elder brother. The brother of the appellant-wife also came into witness box and made categorical statement about illicit relationship between husband and Nitu (a) Shalini. He also slated that the husband used to torture appellant-wife both physically and mentally.
7. Issue no.(7) was framed by the Family court about the alleged illicit and extra marital relationship of the husband. However, the appellant-wife herself moved an application dated 22.1.1997 stating that she did not want to press the said issue. She also did not led any evidence and accordingly, the said issue was decided in negative.
8. The learned trial Judge on consideration of respective cases of the parties as well as orally and documentary evidence adduced in the proceedings came to finding that the wife had made allegation of having illicit and extra marital affair with a lady outside wedlock. The same was reiterated by her in her oral statement. Though the issue in this regard was not pressed by the wife and no evidence was led by her and the fact that husband having extra marital relationship was not proved, the trial Judge came to the conclusion that false allegation of adultery made by the wife against the husband without any evidence or proof amounted to cruelty entailing the husband to a decree of divorce. He also held that various criminal cases instituted by the brother of the wife against the husband which were found false and final report was submitted also amounted to cruelty.
9. Under Section 13 of the Act Cruelty in prescribed as one of the grounds for divorce. The relevant Section 13(1)(i-a) reads as under: "(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty;"
10. The word ‘Cruelty’ has not been defined anywhere in the Act. The word appears to have been used in the Section in context of human behaviour in relation to or in respect of matrimonial obligations or duties. Cruelty can be termed as behaviour or conduct of one spouse which adversely affects the other. Thus broadly speaking ‘cruelty’ as a ground for the purpose of divorce under Section 13(1)(i-a) can be taken as a behaviour of one spouse towards the other which causes reasonable apprehension in his or her mind that it is not safe to continue the matrimonial relationship.
11. Cruelly can be physical or mental or even intentional of unintentional. Physical cruelly is a question of fact and degree. It may con$ist of act of one of the spouse which may endanger the physical health, life and limbs of the other spouse or may give cause for apprehension of such injury. Where as the mental cruelty is a conduct of a spouse which causes mental suffering or fear to the matrimonial life in the mind of the other. Mental cruelty is a state of mind and feeling of one of the spouse due to behaviour or behavioural pattern by the other. Mental cruelty is difficult to establish by direct evidence, It is a matter of inference to be drawn from facts and circumstances of the case, A feeling of anguish and frustration in one spouse caused by the conduct of other can be appreciated on the assessment of facts and circumstances in which the two of thorn have been living. The inference has to be drawn from overall facts and circumstances considered cumulatively.
12. In the present case, right alter about six months of the marriage the matrimonial relationship between the patties was not normal. The wife left the matrimonial home and the husband had to initiate proceedings for restitution of conjugal rights. In the meantime, various criminal and civil proceedings were initiated by the bother of the wife who is an advocate. However in most of the criminal proceedings final reports were submitted by the police after investigation. Later on the parties entered into a compromise on the basis of which the civil litigation between the parties pertaining to custody of the children was disposed of. The wife came to live with the husband. On her insistence the husband separated himself from the family and took a new house. Even thereafter there was no reconciliation between the parties and the dispute and difference went on increasing to the extent that husband charged the wife for the murder of the younger son. She was arrested and sent to jail and was later on released on bail by this court.
13. Faced with such a situation the respondent-husband filed a petition for divorce on the ground of cruelty meted out to him by the wife. She filed her written statement making allegations of having illicit and extra marital affair of the husband with the sister of his elder brother’s wife.
14. The allegation of adultery and extra marital affair was not a result of emotional outburst but were made in the pleadings before a court of law. These allegations were repeated in the oral statement by the wife as well as by his brother. Though the issue framed by the trial Judge in this regard was sought to be not pressed by the wife and no evidence was led to prove the same.
15. Nevertheless, the allegations were made, were serious in nature and merely by not pressing the issue on the point would not loose their impact and were there on the record of the case. Unfounded allegations of adultery made against the wife though not pressed during the proceedings have been held by the Hon’ble Apex Court to be cruel conduct by the husband entailing the wife to seek relief of divorce. In the case of R. Balasubramanian v. Vijayalakshmi Balasubramanian, it has been observed by the Apex Court as follows : "Learned counsel appearing for the husband submitted that as far us the allegation of adultery against respondent-wife is concerned he is not going to press, That may be good of him but the fact remains that the allegation that the wife had sexual intercourse with a person other than (he husband is a serious allegation against the wife and shows the cruel conduct of the husband entitling the wife to seek relief against him under the Act or otherwise".
16. In yet another decision in the case of Vijaykumar Rumchandra Bhate v. Neela Vijaykumar Bhate, , the Apex Court has held that allegation of extra marital relationship constitutes grave assaultion the character, honour and reputation of wife. Such allegations though withdrawn by seeking amendment in written statement which may have been allowed amounts to cruelty entitling the petitioner to a decree of divorce. Following observations made by the Court may be relevant to quote : "That apart, even the fact that the application for amendment seeking deletion of the accusations made in the written statement was ordered and amendments carried out subsequently does not absolve the husband in this case, from being held liable for having treated the wife with cruelty by making earlier such injurious reproaches and statements, due to their impact when made and continued to remain on record. To satisfy the requirement of Clause (I-a) of Sub-section (I) of Section 13 of the Act, it is not as though the cruel treatment for any particular duration or period has been statutorily stipulated to be necessary. As to what constitutes the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really goes by the intensity, gravity and stigmatic impact of it when meted 6ut even once and the deleterious effect of it on the mental attitude necessary for maintaining a conducive matrimonial home If the taunts, complaints and reproaches are of ordinary nature only, the courts perhaps need to consider the further Question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not he so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer A conscious and deliberate statement leveled with pungency and that too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to he of no conseauence merely because it came to be removed from the record only. The allegations leveled and the incidents enumerated in the case oh hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time in the past the husband had been persistently indulging in them, unrelented and unmindful of their impact. That the husband in this case has treated the wife with intense cruelty is a fact, which became a fait accompli the day they were made in the Written statement. They continued on record at any rate till the carrying of the amendment of the written statement and the indelible impact and scar they initially would have created, cannot be said to have got ipso factor dissolved, with (he amendments ordered. Therefore, no exception could be taken to the courts below placing reliance on the said conduct of the appellant, in this regard, to record a finding against him."
17. What has been observed by the Apex Court in the case of wife will stand true and with equal force in the case of a husband as well. The allegation of having illicit relationship and extra marital affair made by the appellant wife against the respondent husband in her written statement, in our view, cannot but constitute mental cruelty of such a nature that respondent husband cannot be reasonably asked to live with the wife. Thus we see no illegality in the finding recorded by the trial Judge that the allegations of having illicit relationship and extra marital affair made by the wife against the husband amounted to cruelty.
18. The other fact which found favour with the Family Court in holding that the husband was entitled to a decree of divorce on the ground of cruelty was various criminal proceedings initiated against the husband which was found to be false and final report was submitted.
19. It cannot be doubted that the respondent-husband must have suffered traumatic experience because of the arrest and confinement in prison of the entire family including himself. The arrest and imprisonment must have resulted in the loss of reputation and prestige of the husband and his family in the society. The mental agony of being arrested and imprisonment in a false case resulting into loss of reputation and prestige in the society would also amount to cruelty. Again we see no illegality in the trial Judge coining to the conclusion that false criminal proceedings initiated against the husband amounted to mental cruelty entitling him to a decree of divorce on the said ground.
20. Section 23(2) of the Act inundates every court to make every endeavour to bring about a reconciliation between the parties before proceeding to grant any relief under the Act. The trial Judge has recorded that efforts of reconciliation Were made on 31.10.1995. The wife though was ready and willing to live with the husband but the husband was not ready and willing and as such the effort of reconciliation failed. Even we made an effort for reconciliation and for the purposes the parties were directed to be present in person. Before proceeding with the hearing of the appeal, the parties were called in the chamber. Again the wife expressed her willingness to live with the husband but the husband stated that in the facts and circumstances and the way he has been treated through out he is not ready and willing to live with the wife at any cost.
21. Though the wife expressed here willingness to live with the husband but we have a feeling and the entire facts and circumstances of the case also indicate that the marriage between the parties is dead both emotionally and practically and continuance of matrimonial alliance would amount to prolonging the agony and affliction which, in itself, may amount to cruelty.
22. In view of the aforesaid discussion, we have come to the conclusion that the husband respondent is entitled to a decree of divorce under Section 13(1)(i-a) of the Hindu Marriage Act and the impugned judgment and decree of divorce passed by the trial Judge does not call for any interference. The appeal filed by the wife is liable to be dismissed.
23. However, the trial Judge exercising power conferred by Section 25 of the Act allowed Rs. 600/- as maintenance to the wife from the date of judgment. We feel that the amount of Rs.600/- awarded by the trial Judge is too meager. At this juncture Sri Ramendra Asthana, learned counsel for respondent-husband made ah offer to pay a sum of Rs.4 Lakhs in lump sum towards the maintenance, and support of the wife after divorce. On our persuation the respondent husband has agreed to pay a sum of Rs.5 Lakhs in lump sum to the wife for her maintenance and support. Let the said amount be paid by means of a demand draft in the name of the appellant wife drawn on some nationalised bank within a period of two months from today.
24. Subject to aforesaid modification made by us the judgment and decree of divorce passed by the Judge, Family Court, Varanasi dated 3.12.1997 in matrimonial case No. 177 of 1992 between the parties stands confirmed.
25. However, in the facts and circumstances there shall be no order as to costs.
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Love marriage turns sour. Husband and wife part ways. Wife ropes a lot of ppl from husband’s family and files fake cases, Wife gets husband and his brother arrested !! She then tries to deny him divorce. the Honorable Bombay HC sees thru here scheming and lying nature (calls it unreliable witness !!) and grants the husband divorce
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FAMILY COURT APPEAL
NO.13 OF 2008
Dr.-X Husband …APPELLANT (Orig. Petitioner)
Mr. P.M. Shah, Senior Counsel with Mr. Amol
N. Kakade Advocate for
Mr. V.D. Sapkal Advocate for Respondent-Wife.
R.M. BORDE AND
A.I.S. CHEEMA, JJ.
DATE OF RESERVING JUDGMENT :9th DECEMBER, 2015
DATE OF PRONOUNCING JUDGMENT:21st JANUARY, 2016
JUDGMENT [PER A.I.S. CHEEMA, J.] :
(1.) This Appeal is filed by the Appellant – husband an
Ophthalmologist (hereafter referred as “Petitioner”), whose Petition
for divorce against the Respondent – wife B.H.M.S. – practicing Homeopathy (hereafter referred as
“Respondent”) has been dismissed by the Family Court, Aurangabad in
Petition No.A.263 of 2006. Keeping in view the nature of dispute, we have
blocked the names of the parties in the cause title.
(2.) Succinctly put, the marriage between the parties took
place on 29th November 2002. They lived together happily for some time and then
due to disputes, the Petitioner claims that the Respondent deserted him on 30th
December 2003. The Respondent claims that she was beaten and left at the place
of her parents on 4th December 2003. Petitioner – husband earlier filed Divorce
Petition No.A.46 of 2004 on 3rd February 2004. The Respondent received summons
in that matter on 9th February 2004. Thereafter few incidents took place and
the Respondent filed F.I.R. leading to criminal case against the Petitioner and
his other family members. The Petitioner withdrew earlier divorce Petition due
to further developments. The present Petition No.A.263 of 2006 came to be
filed later on, on 27th September 2006, which has now been dismissed by the
Family Court on 27th March 2008.
(3.) To understand the disputes between the parties, it is
now necessary to refer the facts in some more details.
NO.A.46 OF 2004.
Exhibit 52 is copy of the earlier Petition No.A.46 of 2004.
It was divorce Petition under Section 13 of the Hindu Marriage Act, 1955. The
Petitioner claims that his marriage with Respondent could be termed as self
Engagement took place on 27th October 2002.
The engagement was broken by the parents of the Respondent
on the ground that she was not offered proper gifts and number of persons
who attended the function were more. As Respondent and her paternal uncle were
ready for marriage, registered marriage was performed and religious rites were
carried out at Ghrishneshwar Temple, Ellora (on 29th November 2002). Reception
took place on 8th December 2002, in which only uncle and aunt of Respondent
In the evening, on the day of marriage, the parents and
relatives of Respondent had come to the residence of the Petitioner and
quarreled. The marriage was happy for few days. Later on Respondent was not
behaving properly and insulted the Petitioner in front of his parents and
friends. She used to take suspicion against the Petitioner if any time he
talked with any girl. She suspected him with his cousin sister also and he was
lowered in the eyes of relatives and sister. When a female friend called from
Bombay, Respondent quarreled with the Petitioner and left the house alleging that
Petitioner had relations with that friend.
She was back answering elderly persons and mother of
Petitioner. The Respondent was being instigated by her parents. She had the
habit of disclosing private life to friends and creating embarrassment. She
left house on many occasions and the Petitioner brought her back. She did not
behave properly with friends and relatives and avoided to perform religious
ceremonies. She had the habit of leaving the gold ornaments open on bed and
when pointed out, she quarreled. She quarreled and deserted the Petitioner
claiming that she will put him behind the bars. She threatened to commit
suicide. She consistently humiliated him which acts amounted to cruelty. It had
become impossible to live with her due to mental agony and torture.
With such facts the first Petition claimed divorce.
WITHDRAWAL OF EARLIER
(4.) The Petitioner filed application (Exhibit 58) in the
earlier Petition claiming that the Respondent has now filed criminal complaint
and he wanted to withdraw the Petition to file fresh divorce Petition after
dismissal of the criminal case and so with permission, liberty may be given.
The Respondent took time to reply but did not file reply and
then the Judge of the Family Court, without recording grant of permission,
passed order dismissing the Petition for want of prosecution. Against the
withdrawal, Respondent filed Family Court Appeal No.47 of 2004 (Exhibit 59) in
this Court and the Appeal was dismissed with clarification that no adverse
order has been passed against the present Respondent, as no leave had
NO.A.263 OF 2006
(5.) Subsequently the present divorce Petition No.A.263 of
2006 was filed. In this Petition the first twelve paragraphs are similar to the
averments as made in the earlier Petition, to which we have made brief
reference above. From Paragraph No. 13 onwards, there is reference to other
facts which took place after filing of the earlier Petition. We proceed to
refer to those facts in brief, as pleaded by the Petitioner. The Petitioner has
now further claimed that after the earlier Petition was filed, notice was
issued to Respondent and it was served on her. Thereafter she came to the
Petitioner and gave threats that she will file false criminal case under
Section 498-A of the Indian Penal Code (I.P.C.) against him and his family
members. On 25th February 2004 when Petitioner was going on
motorcycle from Kranti Chowk towards Paithan Gate, at about 2.00 p.m., in Nutan
Colony, the Respondent stopped him and gave such threats. She also threatened
that she will commit suicide and implicate him and his family members and put
them in jail. On 26th February 2004 she came to the clinic of the Petitioner
and in front of patients abused and threatened him. In view of such acts of
Respondent, the Petitioner filed application with Kranti Chowk Police Station
on 27th February 2004. On 28th February 2004 Respondent came in front of his
clinic and asked him to withdraw the divorce Petition or else she would file
case under Section 498-A of I.P.C. The Petitioner informed this to Mukundwadi
Police Station vide N.C. No.163 of 2004.
The Respondent filed false complaint (F.I.R.) on 29th
February 2004 making false and vexatious allegations against the
Petitioner, his mother, two brothers and wife of one brother that she was
ill-treated, assaulted and there was dowry demand of Rupees Two Lakhs and
Fifteen Tola gold. She claimed that she had been assaulted on 28th February
2004 in the cabin of the Petitioner. This led to registration of offence at
Jinsi Police Station vide Crime No.I-14 of 2004. The Petitioner and his family
members suffered great hardship. The Petitioner and his brother Vijay were
arrested and thereafter came to be released on bail. They were greatly
humiliated. When bail petition came up, Respondent, although she did not have
injury, bandaged her both hands and appeared before the Court to take sympathy
and tried to get the bail rejected. She appeared in the course of trial on each
date and opposed exemption applications.
She gave false evidence in the criminal case.
(The Petition then mentions as to what was allegedly the false evidence.)
Respondent went back from her signature on application which she had given at
the time of marriage to Jinsi Police Station that she had married on her own
accord. She sought various adjournments in the criminal case and at the stage
of arguments even got the case transferred vide Transfer Petition No.68 of 2006
making averments against the Judicial Officer. The Petitioner and his family
members came to be acquitted. The marriage has irrevocably broken down and
parties have been residing separately for more than 2 ½ years. Respondent left
the house on 30th December 2003 without any reason and has been guilty of
willful mental ill-treatment and cruelty to Petitioner. It is impossible for
the parties to live together without mental agony,
torture and distress. Thus the divorce Petition.
(6.) The Respondent filed Say/Written Statement vide Exhibit
40. We proceed to refer to those facts in brief, as pleaded by the Respondent
in the Written Statement:
It is not disputed by the Respondent that engagement took
place on 27th February 2002. She claims that her parents spent Rupees Sixty
Thousands on the engagement. The marriage was fixed for 29th December 2002 but
the Petitioner wanted to finish up the marriage ceremony in simple and
economical manner. For saving Rupees Two Lakhs, parents of Respondent agreed.
They gave garland of five Tola gold to her and remaining ten
Tola gold was to be given within a year. Marriage took place at Ellora
in Ghrishneshwar Temple in simple ceremony. It is denied that Petitioner
arranged reception on 8th December 2002.
Her parents and relatives attended and there was no quarrel.
She denies that she was taking suspicion or that she quarreled on that count.
She claims that the elder brother of Petitioner, Mr. Sujay was married
unemployed. Though he was living separate but used to come for meals twice in
the house of the Petitioner. She claims that he was “parasite”(?) in
Her father was serving in S.T. Department.
She has two sisters, one brother and mother. She comes from
religious, social, cultural back-ground. She never threatened Petitioner with
case under Section 498-A of I.P.C. and she is from medical side and not legal
side. The earlier Petition was withdrawn as Petitioner had filed bogus pan card
and income tax record in the earlier case when pendente lite maintenance was
sought by Respondent and Respondent filed complaint of forgery and cheating.
The present Petition is hit by the principle of ‘res judicata’. When the
earlier divorce Petition was filed, the Respondent had requested Petitioner to
withdraw the divorce Petition. On the contrary, Petitioner went to police
station as he wanted to swallow the clinic developed by her from her money of
medical profession and stridhan. When she requested to withdraw the Petition,
she was beaten when she was attending patients and her thumbs were fractured by
the Petitioner. Although both her thumbs were fractured by the Petitioner, she
did not go to private doctor as she did not want to disclose the deeds of her
husband. She went to Ghati hospital where police made out Medico Legal Case
and recorded offence under Section 498-A of I.P.C. as the Petitioner – husband
had demanded Rupees Two Lakhs and fifteen Tola gold from her parents. She
claimed that the Petitioner and his family members got acquitted as they
managed the police and pressurized police prosecutor. She has preferred appeal
to the High Court.
In the Written Statement, further pleas are raised by the
According to her, it cannot be said that the marriage
between her and Petitioner was love marriage. She claims that the Petitioner
and his mother had approached the parents of Respondent and the engagement took
place. Out of oneness she was sending patients to the Petitioner thereafter.
When the marriage was preponed, it was agreed that whatever would be saved,
would be spent on further development of the
couple. Her father agreed to give fifteen Tola gold after marriage. After
simple ceremony at Ellora, marriage was registered. She started living in the
three storeyed building at Seven Hill Colony, belonging to the Petitioner.
Petitioner insisted that she should not practice in slum area and should shift
in Indu-Ganga complex where he was practicing. Even prior to marriage,
believing Petitioner, she shifted in that complex and took gala on rent. She
took Rupees One Lakh Sixty Thousands from the State Bank of Hyderabad as loan
to set up the clinic. She got the loan after engagement ceremony had taken
place. Petitioner asked her to shift her practice in the same clinic where he
was practicing. She spent the amount in setting up both the clinics. Petitioner
took Rupees Seventy Thousand from the loan which was sanctioned to her and
spent it on his family members. She claims that Rupees Ninety
Five Thousand were still outstanding from the said loan amount. After marriage
she was treated nicely for two months.
Thereafter her mother-in-law Nirmala, sister-in-law Pragati
and brother-in-law Sujay started claiming that Petitioner was highly qualified
and could have got big money as dowry and girl who had M.B.B.S. degree, but he
had preferred a girl from hutment. She claims that her mother-in-law and
sister-in-law started quarreling with her that she does not know cooking and
domestic work. They started instigating Petitioner who started beating her. She
was beaten on 9 to 11 occasions. Petitioner was himself taking her to clinic
and dropping back out of suspicion that she may go to her parents. When she was
beaten, he took her to doctors, namely Rege, Sameer Deshmukh, Dande, Rakshale
under fear that Respondent should not expose him.
Mother-in-law, sister-in-law and brother-in-law were alleging that she had
extra marital affair, without naming any body. When her father met with an
accident and was in hospital for eight months, she was never allowed to meet
him. Her income of Rs.7000/- to 8,000/- per month was being taken away by the
Petitioner. She was brutally beaten on 4th December 2003 for an hour and
dropped at the place of her parents, on 5th December 2003. She was pregnant of
three months at that time. She developed complications and was taken to Dr.
Mrs. Mahindrakar. Doctor informed the Petitioner but he did not come. She lost
her child at that time, due to physical, verbal and economical abuse. Her
sister-in-law Pragati, mother-in-law Nirmala, brothers-in-law Vijay and Sujay claim
that she does not know cooking and spends money on
beauty parlour and shopping and they don’t need her. Petitioner used to be mute
spectator to all this. Even after she was left at the place of her parents, she
was attending the clinic at Indu-Ganga complex.
She tried to go back to matrimonial home but was denied
entry and was asked to bring fifteen Tola gold and Rupees Two Lakhs.
After separation she was not able to practice as when she
joined Dr. Roplekar and later on Dr. Jadhav, she was removed due to Petitioner
and her mother-in-law not liking her working. On 16th July 2006 there was an
advertisement showing inauguration of big hospital by the Petitioner at Seven
Hills Colony. The hospital is worth Rupees Three Crores and the Petitioner is earning
not less than Rupees One Lakh per month. Respondent claimed that she is
entitled to Rupees Twenty Five Thousand per month as pendente lite
ISSUES ANE EVIDENCE
BROUGHT BEFORE FAMILY COURT:
(7.) With such pleadings, the Family Court framed issues at
Exhibit 28. First issue related to jurisdiction to try the case. Second issue
related to alleged cruelty. Third issue related to the question whether the
Respondent had deserted Petitioner without reasonable cause. Fourth issue related
to, whether there was bar under Section 23 of the Hindu Marriage Act. Parties
brought on record necessary evidence. Petitioner examined himself as PW-1
giving evidence on line of above pleadings. Per contra Respondent led her
evidence on above line of pleadings and to support herself, examined RW-2
Nandkumar Parikh, handwriting expert, as she was claiming that the income tax
return tendered in the “earlier” Petition was forged and was also
claiming that the letter dated 29th November 2002, Exhibit 84, relied on by the
Petitioner in Criminal Case, as sent by her to police that the marriage was
willful, was forged.
Respondent examined RW-3 Ravindra Sangavikar, employee from
Bank regarding loan she had taken.
(Although question of maintenance was not being decided -).
Sub Registrar Saheb Khan was examined as RW-4 regarding value of the property
of the Petitioner at Seven Hills to claim that it was worth more than a Crore
of Rupees. RW-5 P.S.I. Shahabuddin Shaikh has been examined to bring on record
evidence that in the police station concerned original of Exhibit 84, the
letter dated 29th November 2002 was not available and neither station diary
entry was there. RW-6 Satish Purohit was examined to prove Tipan Exhibit 168
that when the engagement took place, marriage was initially scheduled for 27th
(8.) The Family Court considered the evidence led by the
parties and held that it had jurisdiction to try the case. It however held that
Petitioner failed to prove cruelty by
Respondent and that he had also failed to prove that she had deserted him
without reasonable cause. The Family Court observed that question of bar under
Section 23 of the Hindu Marriage Act does not survive.
Family Court concluded that Petitioner was not entitled for
decree of divorce.
(9.) Against the Judgment, present Family Court Appeal came
to be filed raising various grounds. It is claimed in the Appeal and it has
been argued by the learned counsel for the Petitioner – Appellant that the
Family Court did not consider the evidence in proper perspective.
The marriage between
the parties was a love marriage which was performed against the wish of parents
of the Respondent. The parents and other relatives except one uncle of
Respondent, did not attend the marriage. Although photographs were produced,
none showed the presence of the parents or other family members of the Respondent. The
Respondent had herself filed the letter to the police on 29th November 2002
vide Exhibit 84 but later on has gone back from her signature on the letter.
The Appellant proved on record the conduct of the Respondent, post receipt by
her of the summons in the earlier petition. Petitioner proved how he was abused
and threatened on 26th February 2004 and 28th February 2004 and subsequently
false criminal case was filed. Because of the criminal case
Petitioner-Appellant and his brother were arrested and thereafter released on
bail. Other family members had to rush to file anticipatory bail petition,
during the course of which hearing, the Respondent appeared with bandaged hands
to prejudice the Court. It has been argued that the Respondent made all
endeavours to put the Petitioner and his family members behind bars all the
while making false allegations. Although it was pleaded that her thumbs were
fractured, in evidence she accepted that they were not fractured. Wild allegations were made that the
family members of the Petitioner were asking for dowry and that Petitioner
would have got girl having M.B.B.S. The marriage took place with full knowledge
of the back-ground of the Respondent.
Wild allegations of miscarriage were made without any
medical evidence being brought on record. Dr. Mrs. Mahindrakar was not
examined. Family Court failed to see that the private handwriting expert
examined, had relied only on xerox copies, which was inadmissible. The
Respondent filed domestic violence case, which came to be dismissed. She filed
frivolous case against the advocates of the Appellant, which also came to be
Although the Appellate Court had remanded the matter after
acquittal, post impugned Judgment the High Court maintained the Judgment of
acquittal and S.L.P. filed by the Respondent came to be dismissed. Thus, it has
been argued that the cruelty has been proved. In present Appeal, the Petitioner
filed Civil Application Nos. 14302 of 2015 and 15183 of 2015 with copies of
documents which are Judgments/applications in the various proceedings between
the parties supported by the affidavits. Some of the Judgments and orders are
relating to the period before the impugned Judgment while some Judgments and
orders have been rendered subsequent to the disposal of the impugned matter.
(10.) Learned counsel for Respondent has not disputed the
correctness of the documents relating to the Judgments and orders passed or
applications moved. The counsel have referred to the said Judgments and orders
as well as applications at the time of arguments and we are taking note of the
subsequent proceedings also.
(11.) On behalf of the Respondent, the learned counsel
referred to Sub Rules (3) and (4) of Order XXIII Rule 1 of the Code of Civil
Procedure, 1908 (C.P.C.) to argue that if the earlier Petition
was withdrawn without taking permission referred to in Sub Rule (3), the
Petitioner would be precluded from instituting any fresh suit in respect of the
subject matter or part of the claim. It is argued that the earlier Petition was
for divorce on the ground of cruelty and present Petition is also for divorce
on the ground of cruelty. As the earlier Petition was withdrawn without taking
permission of the Court and which order has been clarified by the High Court in
the earlier Appeal, the present Petition was barred. Learned counsel agreed
that the observation of the trial Court in Para 50 of its Judgment that the
present Petition was hit by the principles of ‘res judicata’ was not
maintainable, as earlier Petition was not decided on merits, but according to
him the bar is under Order XXIII Rule 1 of the C.P.C., which is applicable. It
is argued by the Respondent that due to withdrawal of the earlier matter, the
Respondent was unable to prove her defence which she was
to take in the earlier Petition. The grounds raised for divorce are general and
The Respondent denied in her written statement that she was
suspecting cousin sister of the Petitioner. According to the learned counsel,
there was no evidence that the Respondent was guilty of ill-treatment and
desertion. (The counsel took us through the evidence.) It is claimed that in
the earlier proceedings, the documents filed of income tax return and Exhibit
84, letter claimed to be filed by the Respondent to police, were forged and so
handwriting expert was examined. The counsel submitted that the Respondent is
ready to go and reside with the husband and the husband is not ready to take
her back and thus divorce should not be granted. Lapse of time is no reason to
Irretrievable breakdown of marriage is no ground.
Only because the Petitioner was acquitted in the criminal
proceedings, would not go to prove that the Respondent inflicted cruelty. The
first divorce petition was filed within fifteen
months of the marriage, which showed that the husband was not interested in
maintaining the marriage.
(12.) The learned counsel for the Petitioner in reply
submitted that when in the earlier Petition the Petitioner had filed
application for withdrawal with permission to institute fresh proceedings, if
the permission was not being granted, what Court could have done was to refuse
the permission but the Court could not have simply disposed the Petition as
withdrawn. He however, did not press for this argument, as according to him,
the matter had been, at that time, carried to the High Court and in Appeal High
Court recorded opinion and so that order has become final. The learned counsel
submitted that in the present Petition, the Petitioner is not relying on the
earlier events which were agitated in the earlier Petition, but is relying on
the incidents which took place subsequent to the filing of the
earlier Petition and present Petition is based on those subsequent facts which
according to learned counsel are not barred under Order XXIII of the C.P.C. According
to the learned counsel the earlier Petition was based on facts till the date of
filing of the earlier Petition, which facts themselves constituted cause of
action. The present Petition cannot be said to be based on the same subject
matter as in the present Petition, the set of facts relied on are different and
cause of action is also different. According to the counsel, subsequent to
filing of the earlier Petition, the Respondent reacted inappropriately and
further, the Petitioner and his family members were dragged into criminal cases
and they were got arrested and harassed making wild allegations against the
character of the husband and criminal acts were attributed, because of which
the present Petition was required to be filed. It is argued that it would be
unimaginable to hold that once a divorce petition on the ground of cruelty has
been withdrawn further divorce petition cannot be filed even if there are
subsequent events showing cruelty. The counsel submitted that the record and
proceedings of Family Court show that the Respondent resorted to raising
various obstructions to the Petitioner by filing various criminal cases and
even in the present Petition irrelevant evidence was brought like that of the
valuer although question of maintenance was not being decided and in
cross-examination there were multiple repetitions. Although the Respondent
claims not to be a person of law, she carried out extensive cross-examination
of the Petitioner, in-person, on 9th July 2007, 10th July 2007, 21st July 2007
and 12th October 2007. She has legal acumen and is not a lay person and the
evidence has not been properly appreciated by the Family Court.
(13.) It is submitted by the learned counsel for the
Petitioner that in the record of the Family Court at Page No.98, there is copy
of complaint dated 4th September 2007 which discloses that Respondent filed
complaint to the Police Commissioner against Head Constable Adhane claiming
that he had given false evidence in the criminal case. The Criminal Court
accepted the evidence of Adhane and acquitted the Petitioner and his family
members and thus such complaint could not have been maintained. The counsel for
Petitioner further submitted that Respondent filed application Exhibit 12 in
the Petition before the Family Court claiming domestic violence and even
secured some orders in her favour on 11th January 2007. Subsequently she filed
Criminal M.A. No.130 of 2008 under Domestic Violence Act before the J.M.F.C. on
4th February 2008 and thereafter on 10th March 2008 withdrew the application
under Section 26 of the Domestic Violence Act which she had filed before the
Family Court. This Criminal M.A. No.130 of 2008 containing similar allegations as made
before the Family Court, has also come to be dismissed by 19th Court of
J.M.F.C., Aurangabad on 31st December 2012.
(14.) Before proceeding to discuss the facts of the matter,
quick reference may be made to the Judgments relied on by the learned counsel
for both sides to support their averments.
(15.) The learned counsel for the Petitioner has placed
reliance on the following reported cases:
(A) Learned counsel for the Petitioner relied on the case of
X husband vs. Y wife, reported in 2014(4) Bom.C.R. 168 to submit that this
Court had, in that matter, taken note of how the wife in that matter also had
subjected the husband to various criminal proceedings in a bitter legal battle
and this Court had held that filing of false criminal cases against a spouse is
itself an act of cruelty and can very well sustain a decree of divorce.
(B) The Petitioner further relied on the case of Vishwanath Agrawal s/o Sitaram agrawal vs.
Sarla Vishwanath Agrawal, reported in (2012) 7 Supreme Court Cases 288,
where also the husband was dragged into criminal cases and Hon’ble Supreme
Court observed in Para 50, that subsequent events can be considered. The
Hon’ble Supreme Court observed in Para 47 as below:
“47. Another aspect needs to be taken note of. The respondent had
made allegation about the demand of dowry. RCC No. 133/95 was instituted under
Section 498-A of the Indian Penal Code against the husband, father-in-law and
other relatives. They have been acquitted in that case. The said decision of
acquittal has not been assailed before the higher forum. Hence, the allegation
on this count was incorrect and untruthful and it can 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 Para 54 and 55 of the Judgment, the Hon’ble Supreme Court
observed as follows:
“54. Regard being had to the aforesaid, we have to evaluate the
instances. In our considered opinion, a normal reasonable man is bound to feel
the sting and the pungency. The conduct and circumstances make it graphically
clear that the respondent-wife had really humiliated him and caused mental
cruelty. Her conduct clearly exposits that it has resulted in causing agony and
anguish in the mind of the husband. She had publicised in the newspapers that
he was a womaniser and a drunkard. She had made wild allegations about his
character. She had made an effort to prosecute him in criminal litigations
which she had failed to prove. The feeling of deep anguish, disappointment,
agony and frustration of the husband is obvious.
55. It can be stated with certitude that the cumulative effect of the
evidence brought on record clearly establishes a sustained attitude of causing
humiliation and calculated torture on the part of the wife to make the life of
the husband miserable. The husband felt humiliated both in private and public
life. Indubitably, it created a dent in his reputation which is not only the
salt of life, but also the purest treasure and the most precious perfume of
It is extremely delicate and a cherished value this side of the grave.
It is a revenue generator for the present as well as for the posterity. Thus
analysed, it would not be out of place to state that his brain and the bones
must have felt the chill of humiliation. The dreams sweetly grafted with
sanguine fondness with the passage of time reached the Everstine disaster,
possibly, with a vow not to melt. The cathartic effect looked like a distant
The cruel behaviour of the wife has frozen the emotions and snuffed out
the bright candle of feeling of the husband because he has been treated as an
unperson. Thus, analysed, it is abundantly clear that with this mental pain,
agony and suffering, the husband cannot be asked to put up with the conduct of
the wife and to continue to live with her. Therefore, he is entitled to a
decree for divorce.”
(C). The counsel for
Petitioner relied on the case of Seth Ramdayal Jat vs. Laxmi Prasad, reported in AIR 2009 S.C. 2463 to submit that
the Judgment in a criminal case is admissible to prove conviction or acquittal.
Learned counsel submitted that Judgment in this matter shows that when in the
civil matter admission is given regarding what was stated in the criminal case,
the same would be admissible. According to the learned counsel, in the present
matter the Respondent wife admitted that in criminal case she had admitted her
signature on letter Exhibit 84 which was sent to police on 29th November 2002,
but she still backed out from the signature in the civil proceedings and even
led evidence of handwriting expert to prove that it was not her signature. The
counsel submitted that her admitting signature in the criminal case was proved
and was required to be considered.
(D) The learned counsel for the Petitioner relied on the
case of Malathi Ravi, M.D. vs. B.V. Ravi,
M.D., reported in (2014) 7 Supreme Court Cases
640 to submit that even in the case brought on the ground of desertion, by
taking into consideration subsequent events, divorce could be granted on the
ground of cruelty. The Hon’ble Supreme Court referred to various incidents of
that matter and observed in Para 43 as under:
“43. As we have enumerated the incidents, we are disposed to think
that the husband has reasons to feel that he has been humiliated, for
allegations have been made against him which are not correct; his relatives
have been dragged into the matrimonial controversy, the assertions in the
written statement depict him as if he had tacitly conceded to have harboured
notions of gender insensitivity or some kind of male chauvinism, his parents
and he are ignored in the naming ceremony of the son, and he comes to learn
from others that the wife had gone to Gulbarga to prosecute her studies. That
apart, the communications, after the decree for restitution of conjugal rights,
indicate the attitude of the wife as if she is playing a game of chess. The
launching of criminal prosecution can be perceived from the spectrum of conduct.
The learned Magistrate has recorded the judgment of acquittal. The wife
had preferred an appeal before the High Court after obtaining leave. After the
State Government prefers an appeal in the Court of Session, she chooses to
withdraw the appeal. But she intends, as the pleadings would show, that the
case should reach the logical conclusion. This conduct manifestly shows the
widening of the rift between the parties. It has only increased the bitterness.
In such a situation, the husband is likely to lament in every breath and the
vibrancy of life melts to give way to sad story of life.”
The learned counsel submitted that facts of the present
matter are similar and require drawing of conclusion of cruelty and divorce
needs to be granted. It is stated, as was done by the Hon’ble Supreme Court in
the above referred matter, this Court is competent to grant divorce and even
pass order granting permanent alimony under Section 25 of the Hindu Marriage
Act, 1955, taking note of the status of the parties.
(E). The further reliance was placed on the case of
K. Srinivas Rao vs. D.A. Deepa, reported in (2013) 5 Supreme Court Cases, 226.
In Para 28 of the Judgment, the Hon’ble Supreme Court observed as under:
“28. Pursuant to this complaint, the police registered a case
under Section 498-A IPC. The appellant husband and his parents had to apply for
anticipatory bail, which was granted to them. Later, the respondent wife
withdrew the complaint. Pursuant to the withdrawal, the police filed a closure
report. Thereafter, the respondent wife filed a protest petition. The trial
Court took cognizance of the case against the appellant husband and his parents
(CC No.62 of 2002). What is pertinent to note is that the respondent wife filed
criminal appeal in the High Court challenging the acquittal of the appellant
husband and his parents of the offences under the Dowry Prohibition Act and
also the acquittal of his parents of the offence punishable under Section 498-A
IPC. She filed criminal revision seeking enhancement of the punishment awarded
to the appellant husband for the offence under Section 498-A IPC in the High
Court which is still pending. When the criminal appeal filed by the
appellant husband challenging his conviction for the offence under Section
498-A IPC was allowed and he was acquitted, the respondent wife filed criminal
appeal in the High Court challenging the said acquittal. During this period the
respondent wife and members of her family have also filed complaints in the
High Court complaining about the appellant husband so that he would be removed
from the job. The conduct of the respondent wife in filing a complaint making
unfounded, indecent and defamatory allegation against her mother-in-law, in
filing revision seeking enhancement of the sentence awarded to the appellant
husband, in filing appeal questioning the acquittal of the appellant husband
and acquittal of his parents indicates that she made all attempts to ensure
that he and his parents are put in jail and he is removed from his job. We have
no manner of doubt that this conduct has caused mental cruelty to the appellant
(F). Learned counsel for the Petitioner relied on the case
of Naveen Kohli vs. Neelu Kohli, reported in (2006) 4 Supreme Court Cases 558,
which was followed by the Hon’ble Supreme Court in the
matter of Samar Ghosh vs. Jaya Ghosh, reported in (2007) 4 Supreme Court Cases,
511 also, to submit that there was no uniform standard laid down for guidance
as to what amounts to mental cruelty, but still the Hon’ble Supreme Court has
referred to some of the instances in Para 101 of the Judgment of Samar Ghosh,
Referring to the instances, the learned counsel submitted
that in the present matter also the wife can be held responsible for inflicting
cruelty to her husband.
(G) As regards the objections raised under Order XXIII Rule
1 of C.P.C., the learned counsel for Petitioner relied on the case of Vallabh
Das vs. Dr. Madan Lal and others, 1970(1) Supreme Court Cases 761.
(16.) This Judgment was followed by Hon’ble Supreme Court in
the matter of N.R. Narayan Swamy vs. B. Francis Jagan, reported in (2001) 6
Supreme Court Cases 473. The Hon’ble Supreme Court
observed in Para 10 as under:
“10. The aforesaid rule would have no application in a proceeding
initiated for recovering the suit premises on the ground of bona fide
requirement which is a recurring cause. Order 23 Rule 1(4)(b) precludes the
plaintiff from instituting any fresh suit in respect of such subject matter or
such part of the claim which the plaintiff has withdrawn. In a suit for
eviction of a tenant under the Rent Act on the ground of bona fide requirement
even though the premises remain the same, the subject matter which is the cause
of action may be different. The ground for eviction in the subsequent
proceedings is based upon requirement on the date of the said suit even though
it relates to the same property. Dealing with similar contention in Vallabh Das
v. Dr. Madanlal and Others [(1970) 1 SCC 761)], this Court observed thus:
“The expression ‘subject-matter’ is not defined in the Civil
Procedure Code. It does not mean property. That expression has a reference to a
right in the property which the plaintiff seeks to enforce. That expression
includes the cause of action and the relief claimed. Unless the cause of action and the
relief claimed in the second suit are the same as in the first suit, it cannot
be said that the subject-matter of the second suit is the same as that in the
(17.) Learned counsel for the Respondent placed reliance on
the following Reported Cases:
(A) The learned counsel for the Respondent relied on the
case of Surjit Kaur vs. Jhujhar Singh, reported in 1978 CJ (P&H) 286, where
Order XXIII Rule 1 of C.P.C. was invoked to bar the second Petition as it was
on same cause of action.
(B). The learned counsel for Respondent relied on the case
of Darshan Gupta vs. Radhika Gupta,
reported in AIR 2013 S.C. (Supp) 85, to submit that ground of irretrievable
breakdown of marriage is not available to husband when he is responsible for
the conditions. The counsel submitted that the Hon’ble Supreme Court has,
observed in Para 35 of that Judgment that perusal of grounds on which
divorce can be sought under Section 13(1) of Hindu Marriage Act, 1955 would
reveal that the same are grounds based on the ‘fault’ of the party against whom
dissolution of marriage is sought. The party seeking divorce should be
innocent. It is argued that in the present matter the husband is not innocent.
(C) The learned counsel for Respondent relied on the case of
Vishnu Dutt Sharma vs. Manju Sharma, reported in AIR 2009 S.C. 2254(1) and
submitted that ground of irretrievable breakdown of marriage is not available
as carving out such ground would amount to legislating.
(18.) Considering the various pleadings of the parties, the
evidence and arguments raised, the Points for Determination are:
(1) Whether the present Petition for divorce
based on incidents occurring subsequent to the earlier Petition is
(2) Whether the Petitioner has proved that the Respondent
has, after solemnization of the marriage, treated the Petitioner with cruelty
and he is entitled to decree of divorce?
WHETHER PRESENT PETITION
(19.) As regards first Point for Determination, reference
may be made to Order XXIII Rule 1 Sub-Rule (3) and (4) of C.P.C. The Rule deals
with withdrawal of suit or abandonment of part of claim. The Sub-Rules (3) and
(4) of Rule 1 of Order XXIII of C.P.C. read as follows:-
“(3) Where the Court is satisfied,-
(a) that a suit must fail by reason of some formal defect,
(b) that there are sufficient grounds for allowing the
plaintiff to institute a fresh suit for the subject-matter of a suit or part of
a claim, it may, on such terms as it thinks fit, grant the plaintiff permission
to withdraw from such suit or such part of the claim with liberty to institute
a fresh suit in respect of the subject-matter of such suit or such part of the
(4) Where the plaintiff-
(a) abandons any suit or part of claim under sub-rule (1),
(b) withdraws from a suit or part of a claim without the
permission referred to in sub- rule (3), he shall be liable for such costs as
the Court may award and shall be precluded from instituting any fresh suit in
respect of such subject-matter or such part of the claim.”
It is clear from reading of the above that if the plaintiff
withdraws from the suit without taking permission, he would be precluded from
instituting any fresh suit ‘in respect of such subject-matter or such part of
The Hon’ble Supreme Court in the matter of Vallabh Das vs.
Dr. Madan Lal, (referred supra) has observed that expression
“subject-matter” includes the cause of action and the relief claimed.
In the matter of N.R. Narayan Swamy vs. B. Francis Jagan (referred supra), the
Hon’ble Supreme Court was dealing with eviction matter under the Karnataka Rent
Control Act, where landlord claimed eviction on the basis of bona fide
requirement. The Hon’ble Supreme Court found that in the matter of bona fide
requirement, there could be recurring cause of action. In the suit for eviction
on the ground of bona fide requirement, even though the premises remain the
same, the subject-matter which is cause of action, may be different. Case of
“Sujit Singh” relied on by learned counsel for Respondent can be
distinguished as it had different facts and subsequent matter was based on same
cause of action. In the present matter, although the foundational facts
regarding relationship of the parties remain the same, the present proceedings
could not be said to be barred as although they refer initially to earlier
incidents, they are based on events which took place subsequent to the filing
of the earlier proceeding which was sought to be withdrawn in view of the
subsequent developments. If such view is not taken, it would mean that once in
such matter if the spouse fails to establish cruelty, subsequently also on the
ground of cruelty, proceeding would not be entertainable. When the relationship
continues between the couple, there could be recurring incidents giving rise to
fresh causes of actions and claim for relief which would be subject-matter for
the subsequent action. For such reasons, we do not find that the present
Petition is barred. We would ignore the claims of the Petitioner with
reference to the incidents claimed by him in the earlier Petition as
constituting cause of action for the earlier Petition. Order XXIII Sub Rule (4)
of Rule 1 of C.P.C. precludes the plaintiff from instituting any fresh suit in
respect of the subject-matter, however, it does not bar the earlier defendant
or respondent from agitating the instances provided they are relevant in
subsequent petition. In the present matter although now objection under Order
XXIII of C.P.C. has been raised, the Respondent has raised various disputes in
evidence with reference to what were instances claimed by the Petitioner in
earlier Petition. As the present Petition is now being dealt with and decided
on the basis of subsequent events, the reference to the evidence of the
Respondent with regard to earlier instances can be referred only where and if
relevant to decide present subject matter or for appreciation of evidence if
the witness is reliable.
(20.) Coming to the second Point for Determination, there is
evidence of the Petitioner claiming that notice of the earlier divorce Petition
No.A.46 of 2004 was served on the Respondent. Exhibit 53 shows that the summons
of that proceeding was served on the Respondent on 9th February 2004. As per
the Petitioner, when she received notice, she threatened the Petitioner with
false prosecution under Section 498-A of I.P.C. against him and his family
members. He has deposed that on 25th February 2004 when he was travelling on
motorcycle from Kranti Chowk to Paithan Gate, at about 2.00 p.m. in Nutan
Colony Respondent stopped him and threatened him with complaint under Section
498-A of I.P.C. He claims that she threatened that she will commit suicide and
implicate him and his family members and put them in jail. His evidence is that
on 26th February 2004 also Respondent visited his clinic and in
front of patients abused him and threatened him. Regarding this incident, he
sent application to Kranti Chowk Police Station on 27th February 2004. The Petitioner
further deposed that on 28th February 2004, in the morning, Respondent came in
front of the clinic asking him to withdraw the divorce petition and gave
threats of complaint under Section 498-A of I.P.C. if he will not withdraw the
Petition. Petitioner claims that he informed the police about this incident
also on 28th February 2004 which was recorded as N.C. No. 163 of 2004. Document
in this regard is at Exhibit 95. According to the Petitioner, Respondent filed
false F.I.R. dated 29th February 2004 alleging that he and his family members
ill-treated her, assaulted her, demanded Rupees Two Lakhs and fifteen Tola gold
and went to the extent of alleging assault on her on 28th February 2004.
This led to offence being registered at Jinsi Police
Station and he and his brother Vijay got arrested and thereafter were released
on bail. It is deposed that at the time of bail proceedings, Respondent,
although she did not have any injury, appeared with both hands bandaged, to get
sympathy of the Court. The evidence further shows as to how in the criminal
case the Respondent appointed Advocate and brought about criminal cases and led
false evidence causing great humiliation and mental agony. It is claimed that
relations have deteriorated to such an extent that now it is not possible to
live with Respondent.
(21.) The Respondent extensively cross examined the
Petitioner and brought on record various documents relating to the criminal
cases. The Petitioner, in cross-examination, gave certain admissions (relating
to incidents which were basis of earlier petition) while denying allegations of
ill-treatment by him or that he or his family members had demanded dowry or
beaten the Respondent.
RESPONDEDNT NOT RELIABLE:
(22.) The Respondent filed affidavit as examination-in-chief
and reiterated what she had claimed in her say/written statement, which we have
discussed above. We need not repeat the same.
She has also been
cross-examined and her cross-examination reveals certain facts which show that
she is not reliable witness. We will briefly refer to those instances:
(a). In evidence the Respondent has tried to show that after
separating from the Petitioner she, having qualification of BAMS, has tried to
practice, for which she joined the office of one Dr. Roplekar and one Dr.
Jadhav ( Para 36 and 37 of her examination-in-chief). She claimed that she
could not continue due to the pressure from the mother of Petitioner. Thus, she
has tried to show that the Petitioner and his
family are making her life miserable. In cross-examination, however, she
accepted that her own sister, with whom she had got good relations, herself has
a clinic at Kartiki Hotel (Para 2 of the cross- examination). She denied that
she was practicing with her sister.
(b) In pleadings and in evidence Respondent claims that the
Petitioner husband took away part of the amount of loan which she had taken
from the Bank for her clinic. However, her cross-examination, Para 9 shows that
she had submitted quotations to the Bank to get the loan released. Her evidence
( Cross – Para 29) shows that initially she accepted that she received cheque
from Bank of Rupees Ten Thousand in the name of M/s. Vijay and sons, but in
further cross-examination she conveniently pleaded loss of memory with
regard to various specific cheque amounts pointed out by the cross examiner,
given to Shantiram Glasses, Kaushaldeep, Usha Electrics and System and Store.
(c). Respondent raised much hue and cry regarding the
pleading of the Petitioner that theirs was a self arranged or love marriage.
She went to the extent of even denying application dated 29th November 2002
(Exhibit 84) given to police station on the date of marriage that she had married
by her own will and complaint of her parents or relatives may not be given
cognizance. She has even led evidence of a handwriting expert, RW-2 Nandkumar
to claim that the signature on Exhibit 84 was not of hers, although in the
criminal case bearing RCC No.414 of 2004, evidence came on record of Head
Constable Shaikhnath Adhane that on 29th November 2002 he was given original of
this document (marked Exhibit 78 in the criminal case) for inquiry and that he
had gone to the house of the Petitioner and also given understanding to the
parents of the Respondent. Against this, the cross- examination of the
Respondent, Para 10, shows her admitting that one year before the marriage she
had gone to the clinic of the Petitioner to extend Diwali greetings.
Although the Respondent claims that the marriage was with
consent of her parents, no evidence worth the name was brought on record by
her. In the photographs of marriage, brought on record, her parents or other
relatives are not shown. According to Petitioner only one uncle of hers had
attended the marriage. Even the marriage certificate Exhibit 137 has signatures
of witnesses on her behalf as those advocates who were friends of the
Petitioner, not known to Respondent since before. Although
denied in Written Statement, Respondent admitted (in Para 17 of her cross- examination)
that the marriage reception dated 8th December 2002 was arranged by the
(d). Respondent claimed (in Para 18 of cross-examination)
that she was not sent for Makar Sankrant. However, the evidence further showed
that she accepted that everything was all right for two months after the
marriage. Marriage took place on 29th November 2002. As such Makar Sankrant
would be in the middle of January 2003. Inspite of this she wanted to insist
that she was not sent for Makar Sankrant.
(e). Respondent wanted to attribute misconduct to the
Petitioner and his family claiming that she was not allowed to go to meet
her father when he met with an accident. However, evidence has come on record
that she had indeed been going out and had gone and met her father.
(f). Respondent claimed physical assault on her on 28th
February 2004 seen by compounder Vishnu (Para 53 of examination-in-chief). She
claimed that the incident took place at 12.30 p.m. Still she went to Ghati
Hospital only at 5 – 5.30 p.m. and that too to Dr. Vikhe, husband of her friend
Anupama (Para 19 of her cross- examination). She tried to show that she did not
go to private doctor in order to save name of the family but still she goes to
husband of her friend in Government hospital and then has tried to show that it
was beyond her control that it became a police case. Although she claimed
assault, the spot was in the clinic which was in crowded
area (Para 19 of her cross- examination) and still she had no witness in her
support. In criminal case and in this Petition also there is no corroboration
to her claims of having been beaten more than 9-10 times.
(g). In written statement Para 14 and the evidence Para 15
Respondent claimed that in the incident dated 28th February 2004 she was so
assaulted that her both thumbs of the hands were fractured.
However, in cross-examination Para 20 she admitted that she
did not have fracture to the thumbs of both the hands. In evidence she claimed
that she had tendon injury to her thumbs. Even this is not supported by medical
evidence. Para 27 of her cross- examination shows that she admitted that at the
time of anticipatory bail of the relatives of the Petitioner, she was present
in Court and filed photographs showing bandage to both of her hands. Of course,
she immediately retracted from this admission also.
(h). Although Respondent denied her signature on Exhibit 84,
the application dated 29th November 2002 filed to police station about willful
marriage, the Respondent was confronted (in Para 25 of the cross-examination)
with her admission in the criminal case where she admitted her signature on the
document. She deposed that she had admitted her signature in the case under
Section 498-A of I.P.C. Then she has added that it was under pressure of
Advocate Ghanekar representing the accused.
(i). In Para 27 of her cross- examination, Respondent
accepted that there was no dispute at the time of betrothal ceremony about what is to be given. We have
already mentioned that the subsequent reception was arranged by the Petitioner
is admitted fact. The marriage admittedly took place in a temple followed by
registration before the Marriage Registrar vide Exhibit 137 and a letter to
police vide Exhibit 84.
Inspite of this, the Respondent has tried to depose that the
Petitioner and his family members were subsequently harassing her for dowry.
Evidence rather shows that after the betrothal the family of Respondent was not
willing but Petitioner went ahead with support of his family and friends as
Respondent herself was willing and they got married. Petitioner and his family
knew that father of Respondent was a humble Class IV employee and she was
B.A.M.S. and her younger sisters and brother were still studying. Still they
went ahead with the marriage as Respondent was
willing. A family interested in dowry would not have done that.
(j). Although the Respondent claimed that when she was
cohabiting with the Petitioner, she was seriously beaten on more than 8-9
occasions, no single piece of evidence was brought on record either in the form
of medical certificates or the evidence of any other doctor to whom Respondent
claims that she was taken by the Petitioner.
(k). Respondent denied (in Para 27 of cross-examination)
that she had engaged Advocate Nanasaheb Jagtap in Criminal Case No.414 of 2004
as Advocate to assist the prosecutor. However, in subsequent cross- examination
(Para 33) when she was confronted with the Vakalatnama Exhibit 132 and other
documents, she had to admit that she did engage Advocate Jagtap in the criminal
(l). Respondent claimed (in Para 3 of her examination-in-chief)
that marriage was preponed and so her father gave five Tola gold and had agreed
to give ten Tola gold within a year. Inspite of this, she has led evidence to
claim that her in-laws were troubling her for fifteen Tola gold and Rupees Two
Lakhs. No such assertion was made against the in-laws in the F.I.R.
(Exhibit 86) which she had filed on 29th February 2004. In
the F.I.R. this was attributed only to the husband.
(m). Respondent has claimed that when she was assaulted and
left at the place of her parents, she was pregnant by three months and because
of the assault she was taken to Dr. Mrs. Mahindrakar and although doctor
informed the Petitioner, he did not come and she lost the child. Although such
serious allegations have been made, neither Dr. Mrs. Mahindrakar was examined
nor any other medical evidence is brought to show that indeed the Respondent
was pregnant and that she suffered miscarriage.
IMPUGNED JUDGMENT NOT
(23.) We have gone through the evidence of the Petitioner as
well as Respondent. The Family Court discussed the evidence and while
discussing the evidence of the Petitioner, referred to the admissions given by
the Petitioner to observe that the admissions shattered his evidence, But,
while referring to the Respondent, Family Court definitely concluded (in Para
66 of Judgment) that she has given false testimony to some extent. The
observations of the Family Court show (in Para 40 of the Judgment) that this is
not a case of physical cruelty. As regards mental cruelty, in Para 45
of the Judgment the Family Court assumed that as father of Respondent was Class
IV employee and Petitioner claimed that it was love marriage, mother and
brother of the Petitioner must have tortured Respondent. We find that there was
regular betrothal ceremony in the present matter and it appears that between
the betrothal ceremony and marriage something happened due to which Petitioner
and Respondent went ahead with their marriage inspite of opposition from the
parents of the Respondent. The Petitioner who was doctor, knew the fact of
father of Respondent being Class IV employee. As such no such conclusions could
have been drawn by the Family Court on the basis of assumptions and presumptions.
The Family Court (in Para 45 of the Judgment) found that the Respondent had
failed to examine any doctor to prove assault. In Para 46 of the Judgment the
Family Court justified the filing of criminal case under Section 498-A of
I.P.C. on the reasoning that it was the Petitioner who first filed divorce petition. We do not agree with such reasoning.
Only because the
husband had filed divorce petition, would be no licence for the wife to file
criminal cases making wild allegations which she is unable to prove.
. The Family Court wanted the Petitioner to prove negative.
The Respondent has claimed that she was beaten in the clinic. The Family Court
observed that the Petitioner claims that Respondent was not beaten and on that
count her thumbs were not swollen, then he should have examined the compounder
Vishnu. This was placing burden on the Petitioner to disprove what the
Respondent was asserting, without her bringing on record the necessary
evidence. The Family Court burdened its Judgment, in Para 76 and 77, by
unnecessarily resorting to philosophy with regard to the importance of child.
In fact, the Family Court, in the course of recording evidence, has allowed to
be brought on record lot of evidence which was not really relevant for deciding the
issues which had been framed. It was like trying to prove the criminal case in
the civil proceedings. We find that the impugned Judgment is not maintainable.
THE CRIMINAL AND
OTHER CASES FILED:
(24.) It is not in dispute that the Respondent had filed
F.I.R. Exhibit 86 leading to filing of Regular Criminal Case No.414 of 2004. If
Exhibit 86 is perused, after the introductory part, she alleged that she was
treated well for two months after the marriage and then her sister-in-law
Pragati and mother-in-law Nirmala started grumbling that the Petitioner would
have got Rupees ten to fifteen Lakhs as dowry and girl who was M.B.B.S. but had
married to a girl from hutment. It was alleged that listening to them, the
Petitioner, after three months of marriage, started giving her trouble and
started beating her claiming that she does not know household work or cooking. She claimed that on 8-9 occasions the
Petitioner had beaten her, and her brothers-in-law Sujay and Vijay were
poisoning the ears of her husband and asking him to beat her. She claimed that
on 4th December 2003 she was beaten and left at the place of her parents. She
claimed that whenever she wanted to go to her parents, she was not being
allowed to go and her mother-in-law, brother-in-law were suspecting that she
has some love affair and so they were not letting her go out. In the F.I.R. it
is further alleged that although she was left at the place of her parents, she
continued to attend the clinic with her husband and in January 2004 she
received summons from Family Court. On 28th February 2004 she went to the
hospital at Thakre Nagar, at which time the Petitioner had slapped her in the
cabin and twisted her thumbs of both hands and threatened that if she wanted to
stay with him, she should get Rupees Two Lakhs and fifteen Tola gold from her
parents or else he will not let her parents live.
(25.) On the basis of above F.I.R., Regular Criminal Case
No.414 of 2004 was filed against the Petitioner and his family members. We have
already discussed evidence that the Petitioner and one of his brother were
arrested and later on released on bail, while other family members succeeded in
getting anticipatory bail, at which time the Respondent appeared in the Court
with bandaged hands. The J.M.F.C. 11th Court, Aurangabad, vide Judgment dated
5th July 2006 acquitted the Petitioner and his family members observing (in
Para 22) that the complaint had been made with intention to take revenge or
pressurize the accused No.1 (Petitioner herein) to withdraw the divorce
petition. Against this Judgment, the State had filed Criminal Appeal No.111 of
2006 to the First Additional Sessions Judge, Aurangabad, who had remanded the
matter on the basis that separate charge under Section 323 of I.P.C. should
have been framed. In Criminal Revision No.188 of
2007 filed by the Petitioner and his other family members to the High Court,
the Judgment of remand was set aside and learned Single Judge of this Court
upheld the Judgment of the J.M.F.C. on merits. Respondent appears to have gone
against the Judgment of the High Court in Special Leave to Appeal (Criminal)
No.807 of 2009 to the Hon’ble Supreme Court, which dismissed the same on 19th
July 2010. The Judgment of the High Court and orders of the Hon’ble Supreme
Court are subsequent to the passing of the present impugned Judgment dated 27th
March 2008. Copies of Judgments are on record. These are subsequent
developments, which facts are undisputed. It goes to show that the allegations
made by the Respondent in the criminal case were not proved. Apart from the
criminal case, we have already discussed the evidence in the present petition
where the Respondent has failed to show that she was at any time physically
assaulted. We have also found her to be unreliable as a
(26.) During pendency of Petition No.A.263 of 2006 in Family
Court, Respondent filed application Exhibit 12 under Section 26 of the Domestic
Violence Act on 1st December 2006 and it was partly allowed on 11th January
2007. She then filed Criminal M.A. No.130 of 2008 before J.M.F.C. on 4th
February 2008 and withdrew Exhibit 12 in Family Court on 10th March 2008. In
these applications she was raising similar allegations against Petitioner and
his family. Criminal M.A. No.130 of 2008 has also came to be dismissed by
J.M.F.C. on 31st December 2012.
(27.) Apart from the above criminal case No.414 of 2004
ending up in acquittal, which has become final, record shows that Respondent
filed Regular Criminal Case No.958 of 2009 on 1st June 2009 before Chief
Judicial Magistrate, Aurangabad against not merely the Petitioner but also his Advocates who were signatories to the marriage
certificate as well as Advocate Ghanekar who was defending the Petitioner in
the criminal case and also Head Constable Adhane who gave evidence in the
criminal case to prove application Exhibit 84 dated 29th November 2002. She
arrayed all of them in the criminal case seeking prosecution under Sections 469
and 471 of I.P.C. The C.J.M. found the complaint to be time barred and also
referred to Section 195 of the Code of Criminal Procedure (Cr.P.C.) that
cognizance could not be taken by other Court except on the complaint in writing
of the Court before whom the offence was alleged to have been committed. It shows
that Respondent wants to intimidate whoever may stand for Petitioner. Roping in
his defence Advocate as accused, seriously reflects against Respondent.
Not satisfied with the Judgment of the C.J.M., the
Respondent filed Criminal Revision No.19 of 2002 before the Additional Sessions
Judge, Aurangabad and the dismissal of the complaint filed by the Respondent has been maintained. It is quite
clear reading Section 195 with Section 340 of Cr.P.C. that when the offence is
alleged to have been committed in or in relation to the proceedings in the
Court, the complaint by the concerned Court would be necessary. Ignoring these
provisions, in the present matter the Family Court has allowed evidence to be
led to show that the income tax return filed in the earlier petition was forged
and that Exhibit 84 did not bear signature of the Respondent which was filed in
the earlier criminal case. The Family Court concluded that these documents were
forged (Para 60 to 62 of the Judgment) accepting the evidence of the
handwriting expert, although the handwriting expert had admitted that the
analysis he had carried out was on the basis of xerox copies (rather –
photocopies) which the Respondent had provided to him. Thus, in law or even on appreciation of evidence, the findings recorded
by the Family Court on this count cannot be maintained.
(28.) In line with the other on-slaught of the Respondent
against the Petitioner, is the Regular Civil Suit No.713 of 2009 filed by the
Respondent against Petitioner claiming that he intends to go for another
marriage and he should be restrained.
The suit has been dismissed by 18th Joint Civil Judge,
Junior Division, Aurangabad on 22nd November 2012.
(29.) With Civil Application No.15183 of 2015 the Petitioner
has brought on record copy of the application which Respondent gave to Women
and Child Welfare Officer on 12th December 2007. There also similar allegations
as in the present matter, were made by the Respondent. She added in prayer (B)
that the present Petitioner should be restrained from letting other women come
to the building Sonai, Seven Hills, other than his mother and two sisters and
no such other woman should be allowed to stay there as paying guest or
tenant or to come as friend.
. Clearly, Respondent was making allegations against the
character of the Petitioner although in the written statement she filed, she
claimed that she was not suspecting the character of the husband. Such psyche
of groundless, unsupported doubts by one spouse as seen in present matter (of
seeking to keep out all women (other than mother and sisters) from the house
and baseless suit to restrain husband from re-marrying) cast aspersions on
character of the other spouse amounting to cruelty.
(30.) Considering the observations of the Hon’ble Supreme
Court in various matters, referred above, where wild allegations are made in
criminal cases one after the other, we find that in the present case also the
Respondent indulged in various conducts once she received summons in the earlier
divorce Petition No.A.46 of 2004, which were in the nature of subjecting the
Petitioner and his family members to humiliation. She appears to have resorted
to all means to ensure that the Petitioner or his family members do not get
bail and should remain in jail. She made allegations of dowry demand and
assault, which have not been proved. Considering the allegations in the F.I.R. and
even those made to the Women and Child Welfare Officers, as well as allegations
made to the J.M.F.C. in Domestic Violence case, the acts were in the nature of
inflicting mental cruelty to the Petitioner and his family members. The
Petitioner and one of his brother had to undergo the agony of getting arrested
and later on being released on bail. Brother of Petitioner admittedly living
separate has been called a “parasite” by Respondent in this Petition
and was dragged in criminal case. They had to face the criminal prosecution,
which appears to have been motivated.
The Family Court brushed aside the impact of such actions
of Respondent only because the mother of Petitioner did not lose her job or the
brother of Petitioner could still contest municipal election or the Petitioner
put up hospital in already owned family house. When the family is facing such
criminal prosecution, and they had to face arrest and the wife is making
allegations against the character of the husband, mental cruelty is clearly
(31.) Considering evidence of the parties, we find
Petitioner reliable when he deposed that due to conduct of Respondent deserting
him, he filed earlier Petition reacting to which Respondent misbehaved with him
in public at Nutan Colony on 25th February 2004 and again on 26th February 2004
and 28th February 2004 and then subjected him and his family to further cruelty
by lining up false cases against him and his family.
(32.) A parting reference can be made to recent Judgment of the Hon’ble the Supreme Court in
the matter of K. Srinivas vs. K. Sunita, (2014) 16 Supreme Court Cases, 34,
where it was observed that:
“It is now beyond
cavil that if 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.”
(33.) We find
substance in the arguments of learned Senior Counsel for Petitioner. The
Rulings relied on by learned counsel for Respondent were on different facts and
we are unable to agree with his submissions made. For reasons discussed, we
find that the Petitioner has proved that the Respondent has, after the
solemnization of the marriage, treated the Petitioner with cruelty under
Section 13(1)(i-a) of the Hindu Marriage Act, 1955. There are no grounds to
attract Section 23 of the Hindu Marriage Act and the
Petitioner is entitled to decree of divorce.
(34.) Learned counsel for the Petitioner fairly stated that
if this Court considers granting of divorce, any amount may be fixed as
permanent alimony under Section 25 of the Hindu Marriage Act. In the record of
the trial Court at Exhibit 157 there is assessment-sheet of the house at Seven
Hills, Aurangabad belonging to the Petitioner and his family showing the value
as Rs.1,07,41,500/- (Rupees One Crore Seven Lakhs Forty One Thousand Five
Hundred). The property card at Exhibit 45 shows that apart from mother of
Petitioner his two brothers are also co-owners in the property which they have
inherited from their father. In the cross-examination of the Petitioner (Para 1)
the Respondent brought on record the fact that his mother is assistant teacher
in grant aided school. His father was no more at the time of
their marriage. Earlier, his father had been head master in private education
institution. The above property came in the family in view of efforts of his
father. One of the brother of the Petitioner appears to be worker of some
political party and other brother Vijay was in service. The Petitioner appears
to have set up his hospital in part of the property and is also having clinic
at Indu-Ganga complex. Thus with humble beginnings the family was just coming
up. Respondent similarly has started with humble beginnings and the sisters and
brothers with education have come up. There was suggestion put by Respondent
herself in the cross-examination of the Petitioner at Para No.19, that when
they were together, she was earning Rs. 10,000/- to Rs.12,000/- per month,
which suggestion has been accepted by the Petitioner. The position that emerges
is that in the ancestral house, there are four co-sharers and the Petitioner is
a doctor, while Respondent also is a doctor. Keeping in view this capacity of
both the parties, and the sources available to the
Petitioner and the responsibility as husband to assist the wife in settling, it
would be reasonable to direct the
Petitioner to deposit an amount of Rs.25,00,000/- (Rupees Twenty Five Lakhs) in
the Family Court as permanent alimony payable to the Respondent.
(35.) For the reasons afore stated, we pass the following order:
O R D E R (I) The
Family Court Appeal is allowed.
Impugned Judgment and
Order are quashed and set aside. Petition No.A.263 of 2006 is allowed.
(II) The marriage
dated 29th November 2002 between the Appellant-Petitioner and Respondent is
hereby dissolved by decree of divorce under Section 13(1)(i-a) of the Hindu
Marriage Act, 1955.
(III) The Appellant is directed to pay permanent alimony of
Rs.25,00,000/- (Rupees Twenty Five Lakhs) under Section 25 of the Hindu
Marriage Act, 1955 to the Respondent.
The amount shall be deposited in the Family Court within a
period of THREE MONTHS from the date of this Judgment and order.
This is not the first time Sheetal Sharma, accused of hitting a man with a rod in a road rage incident, has been booked and arrested by the police. Records reveal that she was earlier arrested in 2015.
A case against Sheetal under Section 317 (exposure and abandonment of child under 12 years by the parent of a person having care of it) of the IPC was registered against her at the Sector 34 police station on October 26, 2015. Four days later, on October 31, she was arrested by the police. However, she was later acquitted. According to the police, Sheetal was 24 years old then.
Sheetal was produced before a court today, which remanded her in judicial custody.
Sheetal was reversing her car in a rash and negligent manner, while the victim Nitish (26), was coming in a Santro car from the rear on a slip road near Tribune Chowk on Tuesday. The duo had an altercation following which the girl pulled out a rod from her car and repeatedly attacked the victim. The victim had suffered four stitches on his head.