Bombay High Court
Abhayraj Shankar Hanmante vs Karun @ Vishakha Abhayraj ... on 22 August, 2016
Bench: S.V. Gangapurwala
1 fca 29.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FAMILY COURT APPEAL NO. 29 OF 2011
Abhayraj S/o Shankar Hanmante,
Age : 41 Years, Occu. : Legal Practitioner,
R/o 1221, Sai Nagar, N - 6, CIDCO,
Aurangabad. .. Appellant
Versus
Karun @ Vishakha W/o Abhayraj
Hanmante, Aged : 36 Years,
Occu. : Private Service,
R/o Jai Mahalaxmi Nagar, E-1,
Gaikwad Mala, Behind Regimental
Talkies, Nasik Road, at post
Nasik. .. Respondent
Shri Satish M. Godsay, Advocate h/f Shri V. M. Kagane, Advocate
for the Appellant.
Mrs. Pooja V. Langhe, Advocate for the Respondent.
CORAM : S. V. GANGAPURWALA AND
K. L. WADANE, JJ.
DATE : 22ND AUGUST, 2016.
ORAL JUDGMENT (Per S. V. Gangapurwala, J.) :-
. The present appellant had filed a petition for divorce
U/Sec. 13 of the Hindu Marriage Act on the ground of desertion
and cruelty. The same is dismissed on the ground that the
petition is not maintainable, as earlier the appellant had filed a
petition for divorce on the same grounds. The said petition was
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dismissed for non prosecution U/O IX Rule 8 of the Code of Civil
Procedure (for short "C.P.C.") and as per Order IX Rule 9 of the
C. P. C. subsequent proceedings on same cause of action are
barred.
2. Mr. Godsay, the learned counsel for the appellant submits
that, the learned Judge of the Family Court failed to consider the
subsequent events that had taken place after dismissal of earlier
petition for divorce on the ground of cruelty and desertion. The
learned counsel submits that, desertion is continuing cause of
action, so also cruelty. According to the learned counsel,
subsequent proceedings were absolutely maintainable. The
criminal proceedings were filed by present respondent U/Sec.
499 and 500 of the Indian Penal Code. At the time earlier
divorce proceedings were pending, the criminal proceedings were
not decided. The same were decided after dismissal of earlier
petition for divorce. Filing of false criminal case and acquittal
amounts to cruelty. Said aspect is not considered by the learned
Judge. The learned counsel relies on the judgment of the
Division Bench of this Court in the case of Manoj Madhukarrao
Pate Vs. Vijaya Manoj Pate reported in 2015(1) Mh. L.
J. 900.
3. Mrs. Langhe, the learned counsel for the respondent
submits that, the learned Judge of the Family Court had in
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tabular format discussed pleadings in the earlier divorce petition
and present petition. The facts alleged were the same. As such
the learned Judge has rightly dismissed the present proceedings
as not maintainable. Earlier proceedings were dismissed U/O IX
Rule 8 of the C. P. C. In view of Order IX Rule 9 of the C. P. C.
the present proceedings were barred. The learned counsel
submits that, as far as the ground of desertion is concerned, it
cannot be said that the said cause repeatedly arises. The
desertion between the spouses takes place only once. The
learned counsel relies on the judgment of the Division Bench of
this Court in the case of Dayanand Vishwanathrao Kadam
Vs. Pratibha Dayanand Kadam reported in 2007(3) Mah.
L. R. 539. The learned counsel further submits that, mere
factum of acquittal of the appellant in the criminal case would
not ipso facto tantamount to cruelty. The learned counsel relies
on the judgment of the Division Bench of the Andhra Pradesh
High Court in the case of Chiranjivi Vs. Smt. Lavanya @
Sujatha reported in AIR 2006 AP 269.
4. We have considered the submissions canvassed by learned
counsel for respective parties.
5. The learned Judge of the Family Court has in tabular
format reproduced pleadings in the earlier divorce petition and
the present petition. The majority of the pleadings appear to be
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based on same facts. The difference is only in respect of acquittal
in favour of the appellant in criminal case filed by the respondent
U/Sec. 499 and 500 of the I. P. Code.
6. The subsequent fact arisen can certainly be taken into
consideration. The appellant did not have a cause of action with
regard to the acquittal in the criminal case, when the earlier
proceedings were pending. The appellant has got the acquittal
subsequently after the dismissal of his earlier divorce petition.
The said aspect was not subject matter of consideration in the
earlier divorce proceedings bearing H.M.P. No. 210 of 2006. As
far as desertion is concerned, the Division Bench of this Court in
the case of Dayanand Vishwanathrao Kadam Vs. Pratibha
Dayanand Kadam referred to supra has observed that,
separation between the spouses take place only once. Spouse
cannot file petition for divorce on the ground of desertion
repeatedly by saying that his separation is continued.
7. Naturally, if, the subsequent proceedings are based
on same cause of action, then the present petition for
divorce bearing Petition No. A-220 of 2010 was not
maintainable in view of the dismissal of H.M.P. No. 210 of 2006
for want of prosecution., more particularly when the said
dismissal was U/O IX Rule 8 of the C. P. C. and the fresh
proceedings on the same cause of action are barred in view
5 fca 29.11
of Order IX Rule 9 of the C. P. C. The marked distinction in the
present proceedings bearing Petition No. A-220 of 2010 is that
the petitioner is pleading cruelty on the ground that false
criminal case was filed by the respondent U/Sec. 499 and 500 of
the I. P. Code and after trial present appellant has been
acquitted in the said case. The said factum will have to be
considered by the Family Court. Whether acquittal was on
technical ground or any other ground, the effect of the same upon
the case of the parties will have to be considered by the Family
Court while deciding the said petition. As the cause of action
was subsequent to the dismissal of H.M.P. No. 210 of 2006,
certainly it was within the province of the Family Judge to
consider the said ground of cruelty qua the cause of action arisen
subsequent to the dismissal of the said earlier petition bearing
H.M.P. No. 210 of 2006.
8. It is submitted that both the parties had led their evidence
and the matter was also argued finally, but while pronouncing
the judgment, divorce petition is dismissed only on the ground
the petition being barred in view of the provisions of Order IX
Rule 9 of the C. P. C.
9. In the result we pass the following order.
10. The impugned judgment and order is quashed and set
6 fca 29.11
aside. The parties are relegated before the Judge, Family Court,
Aurangabad for deciding Petition No. A-220 of 2010 afresh. It is
made clear that, the appellant is not entitled to raise ground of
desertion and/or of cruelty, which was subject matter in H.M.P.
No. 210 of 2006 and only the Petition No. A-220 of 2010 shall be
considered in respect of the cause of action arisen subsequent to
the dismissal of H.M.P. No. 210 of 2006.
11.
As the parties have already led their evidence, the parties
are not now required to adduce the evidence and the learned
Judge of the Family Court shall hear the final arguments of the
parties and decide the same in view of the observations made
hereinabove. The parties or their lawyers shall appear before the
Judge, Family Court, Aurangabad on 06th September, 2016.
Considering the fact that, the matter is remitted back and the
matter is only required to be heard finally and decision given, the
Judge, Family Court, Aurangabad shall endeavour to dispose of
the petition expeditiously and preferably within a period of three
(03) months from the date of appearance of the parties. Record
and proceedings be sent back forthwith. The family court appeal
partly allowed and disposed of. No costs.
Sd/- Sd/-
[ K. L. WADANE, J. ] [ S. V. GANGAPURWALA, J. ]
bsb/August 16
