Sudhakar S/O Kisan Gaikwad vs Smt. Jyotsna W/O Sudhakar Gaikwad
2017 Latest Caselaw 4507 Bom

                                                                                          fca330.14.odt

                                                      1

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH AT NAGPUR

                            FAMILY COURT APPEAL NO.330/2014

     APPELLANT:                 Sudhakar s/o Kisan Gaikwad, 
                                aged about 49 years, Occu. - 
                                Service resident of 63, Parvati Nagar, 
                                in front of Dr. Gawali Hospital, 
                                Nagpur - 27 (Original petitioner as on R.A.)

                                                ...VERSUS...

     RESPONDENT:       Smt. Jyotsna w/o Sudhakar Gaikwad, 
                       aged about 42 years, 
                       Occupation business, resident of 
                       C/o Shantabai Dandekar, Nazul 
                       Layout, Baizenbagh, Nagpur. 
                       (Original respondent as on R.A.)

     --------------------------------------------------------------------------------------------------
                       Shri D.M. Kale, Counsel for the appellant
     --------------------------------------------------------------------------------------------------

                                                    CORAM  :  SMT. VASANTI  A  NAIK AND
                                                                      ARUN D. UPADHYE, JJ.

DATE : 14.07.2017

ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)

By this family court appeal, the appellant-husband

challenges the judgment of the Family Court, Nagpur dated 4.2.2014

dismissing the petition filed by the husband for a decree of divorce on the

ground of desertion under Section 13 (1) (ib) of the Hindu Marriage Act.

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Few facts giving rise to the family court appeal are stated

thus : -

The marriage of the appellant-husband (hereinafter referred

to as 'the husband' for the sake of convenience) and the respondent-wife

(hereinafter referred to as 'the wife') was solemnized at Amgaon on

20.5.1994 according to the customs prevailing in their community. It was

the second marriage of the husband as his first wife had expired on

9.7.1989. According to the husband, he had disclosed the fact of his first

marriage and about his daughter Shubhangi who was more than five

years of age at the time of his second marriage. It is the case of the

petitioner that though the husband did not have fixed duty hours and was

required to go out of the house for his duties at any odd times, the wife

did not care either for the husband or his daughter Shubhangi. It is

submitted that the wife harassed the husband and ill-treated him. The

husband pleaded in the petition filed by him for a decree of divorce on the

ground of desertion that earlier he had filed a petition for a decree of

divorce on the ground of cruelty and desertion but the same was

dismissed. It is pleaded that the husband had challenged the judgment

dismissing his petition for divorce before the High Court, but the said

petition was dismissed in default. It is pleaded that the wife had treated

the husband with cruelty and despite his desire that the husband and wife

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should reside under one roof, the wife never desired to stay with the

husband and resided in her parental house since the parties separated in

the year 1996. It is submitted that the wife had lodged a false complaint

against the husband under Section 498 A of the Penal Code. It is pleaded

that the separation between the husband and the wife was very long and

since the wife was not ready to join the company of the husband, a decree

of divorce should be passed.

The wife denied the claim of the husband in the petition

filed by him. The wife pleaded that in the previous petition filed by the

husband, the Family Court had clearly recorded a finding that the wife

had not treated the husband with cruelty, that the wife had not deserted

him without any just or reasonable excuse and that the wife had proved

that the husband had illicit relationship with Shalini Sute. The wife

pleaded that the husband had treated the wife with cruelty and he was

not entitled to a decree of divorce. The wife sought for the dismissal of the

petition filed by the husband.

On the aforesaid pleadings of the parties, the Family Court

framed the issues. The parties tendered the evidence and on an

appreciation of the same, the Family Court held that the husband had

failed to prove that the wife had deserted him without any just and

reasonable excuse. The Family Court further held that the wife had been

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successful in proving that the husband had maintained illicit relationship

with Shalini Sute though the wife had failed to prove that the husband

had entered into a wedlock with Shalini Sute. The judgment of the Family

Court dated 4.2.2014, is challenged by the husband in the instant petition.

Shri Kale, the learned Counsel for the husband submitted

that the Family Court was not justified in dismissing the petition filed by

the husband. It is submitted that though by the prayer made in the

petition the husband had not specifically sought a decree of divorce on the

ground of cruelty, since the allegations made in the petition clearly show

that the wife had treated the husband with cruelty, the husband was

entitled to a decree of divorce on the said ground. It is submitted that

though a finding was recorded in the judgment in the earlier petition filed

by the husband that the wife had not deserted him, in the instant petition,

since the period of separation is large, the Family Court ought to have

granted a decree of divorce. It is stated that the parties are residing

separately for nearly 20 years and since the marriage between the parties

is irretrievably broken down, the Court ought to have granted a decree of

divorce in favour of the husband. It is stated that the Family Court

wrongly relied on the judgment in the petition filed by the husband in the

year 2000 to hold that the present petition was barred by the principles of

res judicata. The learned Counsel relied on the judgments, reported in

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(2013) 5 SCC 226, (2006) 3 SCC 778, (2006) 4 SCC 558, (2007) 4

SCC 511, (2010) 4 SCC 393 and (1996) 8 SCC 90 to substantiate his

submission. It is submitted that though irretrievable break down of the

marriage is not a ground for divorce under Section 13 of the Hindu

Marriage Act, in view of the judgments of the Hon'ble Supreme Court,

reported in (2006) 4 SCC 558, (2007) 4 SCC 511, (2010) 4 SCC 393, it

would be necessary to grant a decree of divorce in favour of the husband

as the marriage between the parties is irretrievably broken down.

On hearing the learned Counsel for the appellant and on a

perusal of the record and proceedings, it appears that the following points

arise for determination in this family court appeal.

(1) Whether the husband has proved that the wife had deserted him without any just and reasonable excuse ?

                               (2)    Whether   the   husband   is   entitled   to   a
              decree of divorce ?
                               (3)    What order ?



                       On   a   perusal   of   the   record   and   proceedings   and   the

judgment rendered by the Family Court in the first petition filed by the

husband, bearing Petition No.A-1031/1996, it appears that the relief

sought by the petitioner cannot be granted. The petitioner had filed a

petition under Section 13 of the Hindu Marriage Act for a decree of

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divorce on the ground of cruelty and desertion in the year 1996. The said

petition was dismissed by the Family Court by the judgment dated

3.7.2000. It was held by the Family Court in the said judgment that the

husband had failed to prove that the wife had treated him with cruelty.

The Family Court had recorded a finding that the wife had not deserted

the husband. The Family Court further recorded a finding that the wife

had proved that the husband had illicit relationship with Shalini Sute. The

findings recorded by the Family Court in the petition filed by the husband

in the year 1996 have attained finality as the appeal filed by the husband

against the judgment dated 3.7.2000 was dismissed for want of

prosecution. After the said judgment attained finality, it was not

permissible for the husband to file a second petition for a decree of

divorce on the ground of desertion. In the petition filed by the husband in

the year 1996, the Family Court has recorded a categorical finding that

the husband had failed to prove animus deserendi along with the factum of

separation. The Family Court held in the petition filed by the husband in

the year 1996 that merely residing separately from the spouse would not

prove that the spouse residing separately had deserted the other spouse

unless animus deserendi was proved. Apart from the aforesaid, the Family

Court had recorded a finding that the husband had illicit relationship with

Shalini Sute. After scanning the evidence of the witnesses, the Family

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Court had recorded a clear finding in regard to the illicit relationship of

the husband with Shalini Sute. In the present petition also the Family

Court has recorded a finding that the petitioner had illicit relationship

with Shalini Sute and there is material on record to show that a male

child is born to Shalini at Ambhore Nursing Home and the husband has

taken the responsibility of the said child.

In view of the findings recorded by the Family Court in the

petition filed by the husband in the year 1996, the husband could not

have sought a decree of divorce in the second petition, on the same

grounds. New material was not placed by the husband before the Family

Court that could demonstrate that the wife had deserted the husband. In

our view, the husband would not have been entitled to a decree of divorce

even if he had proved that the wife had treated him with cruelty, as it is

well settled that a decree of divorce can not be passed if the Court finds

that the party who seeks a decree of divorce has committed the wrong. It

is well settled that a party cannot be permitted to take advantage of his

own wrong while seeking a decree of divorce. In both the petitions filed

by the husband a categorical finding is recorded against the husband that

he had maintained illicit relationship with Shalini Sute. The husband had

lost his first wife in the year 1989, married the wife in 1994 and had

immediately filed a petition in the year 1996 for a decree of divorce in

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which it was proved against the husband that he had illicit relationship

with another lady, i.e. Shalini Sute. The Family Court has rightly come to

a conclusion that the petitioner was not entitled to a decree of divorce on

the ground of desertion, more so, when it was held in the earlier petition

filed by the husband in the year 1996 that the wife had not treated the

husband with cruelty, she had not deserted him and the husband had

illicit relationship with Shalini Sute during the subsistence of his marriage.

We do not find any reason whatsoever, to interfere with the findings

recorded by the Family Court. Since the irretrievable break down of a

marriage is not a ground for divorce under Section 13 of the Hindu

Marriage Act, it would not be for this Court to consider the submission

made on behalf of the husband that a decree of divorce be passed as there

is an irretrievable break down of the marriage. Even if a plea of

irretrievable break down of the marriage could have been considered by

this Court, we would have been loath in passing a decree of divorce in

favour of the husband as the husband has committed a serious wrong by

maintaining illicit relationship with Shalini Sute within two years from the

marriage with the wife. The judgments, reported in (2013) 5 SCC 226,

(2006) 3 SCC 778, (2006) 4 SCC 558, (2007) 4 SCC 511, (2010) 4

SCC 393 and (1996) 8 SCC 90 and relied on by the Counsel for the

husband cannot be applied to the case in hand.

fca330.14.odt

In the result, the family court appeal is dismissed with no

order as to costs.

                   JUDGE                                                                JUDGE




     Wadkar