Mr. Gaurav Sanjeev Wattal vs Mrs. Pallavi Gaurav Wattal
2017 Latest Caselaw 9351 Bom

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SAS
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                             CIVIL APPELLATE JURISDICTION

                            SECOND APPEAL NO.622 OF 2014
                                         WITH
                            SECOND APPEAL NO.621 OF 2014
                                         WITH
                          CIVIL APPLICATION NO.1474 OF 2014


      Gaurav Sanjeev Wattal,
      Age: 33 years, Occ Service,
      R/at Flat No.8018, Pocket C-8,
      Vasant Kunj, New Delhi-110 071                     ..Appellant.


                      V/s.


      Mrs. Pallavi Gaurav Wattal,
      Age about 28 years, Occu: Housewife,
      R/at 111/2, Faculty Housing Tolani 
      Maritime Institute, Induri Talegaon,
      Dabhade, Pune - 410 507.                           ..Respondent. 


      Mr.Kashinath Jadhav for the appellant.

      Mr.Abhijit D.Sarwate for the respondent.  


                                       CORAM:  NITIN W.SAMBRE, J.

                                       DATE :     DECEMBER  4, 2017





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ORAL JUDGMENT 

Before dealing with the Appeals, it is worth to observe

that these Appeals are pending admission since 2014. Various

attempts for re-conciliation and settlement by the respective

parties, including that of this Court and the trained mediator,

remained unfruitful. The respondent-wife during the course of

hearing was present before the Court. However, the appellant-

husband remained absent. The re-conciliation or settlement

between the parties is not possible as parties are unable to reach to

any terms, including that of payment of one time alimony towards

full and final settlement of the claims of the parties. In the

aforesaid background, the Appeals are taken up for hearing.

2. Heard the respective parties.

3. The present appeals are arising out of the provisions of

section 13(1)(ia) and section 9 of the Hindu Marriage Act, 1955

('the Act' for short) for questioning the order of Restitution of

Conjugal Rights and refusal to grant decree of divorce on the

ground of cruelty.

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4. The facts necessary for deciding both the appeals are as

under:-

The appellant-husband was married to the respondent-

wife on April 30, 2006. Both are highly educated. The appellant-

husband is in the hospitality service whereas the respondent-wife

at times has taken teaching jobs.

5. After the marriage in 2005, the couple was not blessed

with any issue. In 2008, the parties, due to differences, started

residing separately.

6. The proceedings in M.P. No.388/2008 is under section

13(1)(ia) of the Act seeking divorce on the ground of cruelty

whereas the respondent-wife filed M.P. No.492/2008 under section

9 of the Act for Restitution of Conjugal Rights.

7. It is the case of the present appellant-husband that the

suppression of material facts by the respondent-wife about her

ailment, her eccentric behaviour resulted in cruelty whereas the

respondent-wife has come out with a case that without reasonable

excuse, the appellant-husband has withdrawn himself from the

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company of respondent-wife.

8. The proceedings were initiated before the Civil Judge,

Senior Division, Pune. He has framed the issues in the respective

proceedings at Exhibits-16 and 21. The issue of Restitution of

Conjugal Rights was answered in favour of the respondent-wife

whereby the Court issued appellant-husband appropriate

directions, whereas the claim of the appellant-husband under

section 13(1)(ia) of the Act for divorce came to be rejected by

common judgment dated April 7, 2012. The appellant herein,

being aggrieved thereof, preferred two appeals before the learned

District Judge, Pune. Regular Civil Appeal Nos.588/2013 was

preferred against the order of granting Restitution of Conjugal

Rights, whereas Regular Civil Appeal No.589/2013 was preferred

for sustaining the refusal of grant of decree of divorce. Both these

appeals are dismissed on July 9, 2014. As such, these two Second

Appeals.

9. In Second Appeal No.622 of 2014, the appellant has

questioned the decree for Restitution of Conjugal Rights whereas

in Second Appeal No.621 of 2014 the judgment of refusal to grant

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divorce is impugned.

10. Learned counsel for the appellant-husband while

trying to establish his case by invoking the provisions of section 13

of the Hindu Marriage Act, would urge that both the Courts below

committed an error, apparent on the face of record, in appreciating

that since re-conciliation is not possible, should have granted

decree for divorce. Learned counsel for the appellant would urge

that if the proceedings for decree of divorce are appreciated, the

fact remains that it is the respondent-wife who has practiced

cruelty by suppressing the fact about her ailment and also failed to

explain her unpredictable behaviour in the married life of the

appellant-husband. So as to substantiate the claim, learned

counsel has taken me through the observations made by both the

Courts below. In addition, learned counsel would urge that if the

decree for divorce on the ground of cruelty is allowed,

automatically the decree for Restitution of Conjugal Rights would

go.

11. Per contra, learned counsel for the respondent-wife

would urge that the claim for Restitution of Conjugal Rights is

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appreciated by both the lower Courts in the backdrop of section 9

of the Act. According to him, the burden to prove that the

respondent-wife has practiced cruelty is on the appellant-husband,

which he has failed to discharge. According to him, both these

appeals are against the concurrent findings and as such are liable

to be dismissed.

12. Considered the rival contentions of the parties, in the

backdrop of the provisions of section 9 and section 13(1)(ia) of

the Act, it is worth to observe that while claiming the relief under

section 9 what is required to be established is, without reasonable

cause, the opposite party i.e. husband in this case has withdrawn

from the society of the spouse (in the present case the wife). The

Court is required to be satisfied about the truth of the statement

made as regards the withdrawal from the society without any

reasonable excuse. The burden in such an eventuality is on the

person who has withdrawn from the society of the applicant.

13. If we appreciate the requirement of section 9 of the

Act, particularly the explanation provided therein, it is to be noted

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that the scope of the defence while dealing with a claim under

section 9 is restricted. The burden is on the respondent to

demonstrate that he has not withdrawn himself from the company

of the appellant.

14. In the present case, the respondent-wife has specifically

come out with a case that in 2008, she started residing with her

parents as the present applicant had withdrawn himself from the

society of respondent-wife though she is willing to reside with the

appellant-husband.

15. The evidence brought on record by the respective

parties was appreciated and both the courts concurrently held that

the appellant has apparently withdrawn from the society of

respondent-wife without any reasonable cause. The wordings used

in section 9 of the Act that such withdrawal from the society is

permissible provided there is a reasonable excuse. However, in the

present case, it is required to be observed that the appellant-

husband failed to demonstrate any reasonable excuse for

withdrawing from the society of the respondent-wife. Very trifle

issues are sought to be relied so as to establish the case of

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reasonable excuse such as insulting family members, etc.

16. In the wake of above referred observations, the decree

for Restitution of Conjugal Rights passed by both the Courts below,

in my opinion, does not call for any interference.

17. So far as refusal to grant decree of divorce on the

ground of cruelty is concerned, the grounds which are placed by

the appellant in service so as to prove improper behaviour of the

respondent-wife, her complaining nature, etc., both the Courts

below having appreciated the evidence of the respective parties

has noted that the nature of the grounds and the eye problem of

respondent-wife, it has hardly any bearing over the married life of

the parties. Apart from above, it is to be noted that the respondent

was taking treatment for the said health problem. The issues

which are sought to be relied upon so as to prove cruelty did not

appeal to both the Courts, so also this Court to infer that the

appellant-husband has discharged his burden by proving cruelty.

18. This Court has also re-appreciated the findings

recorded for refusal to grant divorce on the issue of cruelty.

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However, there is hardly any material to infer that the requirement

under section 13(1)(ia) of the Act was satisfied. The appellant-

husband in this case has failed to demonstrate that he was treated

with cruelty by the respondent-wife and he has made out a case

for dissolution of marriage for ordering a decree of divorce.

19. In the backdrop of the above findings, in my opinion,

no case is made out for interference in the second appellate

jurisdiction. Both the appeals as such fails and as such stand

dismissed.

20. In view of the disposal of the appeals, the civil

application does not survive and hence is disposed of as such.

(NITIN W.SAMBRE, J.)