Mahendra S/O Narayan Kumbhare vs Khushboo Mahendra Kumbhare
2017 Latest Caselaw 5126 Bom

 2707FCA21.17-Judgment                                                                          1/8


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


                  FAMILY COURT APPEAL  NO.  21  OF    2017



 APPELLANT :-                         Mahendra   S/o  Narayan   Kumbhare,   Aged
 (Ori.Petitioner) on R.A.             about   35   years,   Occ:   Private,   R/o:   C/o
                                      Narayan   Bhanarkar,   Maskasath,   Bangali
                                      Panja, Nagpur. 


                                         ...VERSUS... 


 RESPONDENT :-                        Khushboo Mahendra Kumbhare, Aged about
 (Ori.Res'dent) on R.A.               25   years,   Occ:   Nil,   R/o:   C/o   Chandrakant
                                      Jalgaonkar, Ganjakhet Chowk, Bajirao Galli,
                                      Near Noor Akada, Nagpur. 


 ---------------------------------------------------------------------------------------------------
                    Mr. Praful A. Teni, counsel for the appellant.
                   Miss Kirti Satpute, counsel for the respondent.
 ---------------------------------------------------------------------------------------------------



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

DATED : 27.07.2017

O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)

Heard

2. The family court appeal is admitted and heard finally at

the stage of admission.

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3. By this family court appeal, the appellant challenges the

judgment of the family court dated 29/08/2016, dismissing the petition

filed by the appellant for restitution of conjugal rights as also the

counter claim filed by the respondent for a decree of divorce after

observing that a legal and valid marriage was not performed between

the parties, on 30/01/2012.

4. The appellant-husband had instituted a petition against

the respondent-wife under section 9 of the Hindu Marriage Act.

According to the appellant, the respondent is the sister-in-law of his

elder brother and after being in love with each other for about four

years, the marriage was solemnized between them on 30/01/2012.

According to the appellant, the respondent wanted to stay in her

parental house to pursue her education. It is pleaded that the appellant

used to stay in the matrimonial home only between 12.30 to 5.00 p.m.

It is pleaded that when the matter went before the mahila cell, the

mahila cell asked the respondent to cohabit with the appellant, but

without any success. According to the appellant, since the respondent

has left his company without any just or reasonable excuse, the

appellant is entitled to a decree of restitution of conjugal rights.

5. The respondent filed the written statement and denied the

claim of the respondent for restitution of conjugal rights. The

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respondent admitted the marriage but denied all the other allegations

made by the appellant. According to the respondent, the marriage

between the parties was solemnized forcibly and under coercion in Arya

Samaj Bhavan. The respondent pleaded that she had never gone to the

matrimonial home for cohabitation and the marriage between the

parties was not consummated. The respondent pleaded in the counter

claim filed by her that the appellant had expressed love for the

respondent but it was one sided. It is pleaded that the respondent had

not accepted the proposal of the appellant for performing the marriage

and had also stopped talking to him. It is pleaded that since the

appellant threatened the respondent that he would commit suicide and

implicate her and her parents in a false criminal cases, the respondent

was forced to talk to the appellant. It is pleaded that the respondent

used to meet the appellant out of fear. It is pleaded that in December,

2008 the appellant had cut his wrist by a blade because the respondent

had stopped meeting him. Certain other threats given by the appellant

to the respondent are also mentioned in the counter claim. By making

the aforesaid allegations, the respondent sought a decree of divorce.

6. On the aforesaid pleadings of the parties, the issues were

framed and the parties tendered their evidence. On an appreciation of

the material on record, the family court held that merely because the

2707FCA21.17-Judgment 4/8

respondent was seeking a decree of divorce instead of a declaration that

the marriage is a nullity, it cannot be said that the marriage was

recognized. The family court came to a conclusion that the marriage

between the parties was not consummated and the said marriage was

thrust upon the respondent by force and coercion. After observing that

the marriage dated 30/01/2012 was not legal and valid, the family

court dismissed the petition filed by the appellant for restitution of

conjugal rights and also the counter claim filed by the respondent for a

decree of divorce. Since the family court had observed that the

marriage between the parties was not legal and valid, the respondent

has remarried, before this family court appeal was filed

7. Shri Teni, the learned counsel for the appellant, submitted

that the family court was not justified in holding that the marriage

between the parties was not legal and valid when that was not the case

of the appellant or the respondent. It is submitted that the respondent

had not sought a decree for nullity of marriage. It is submitted that the

family court has erroneously held that the marriage between the parties

was not legal and valid, though the respondent had not claimed so. It is

submitted that since the respondent had claimed a decree of divorce,

the family court should have considered whether the respondent was

entitled to a decree of divorce or not, on the pleadings in the counter

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claim. It is submitted that when the respondent had accepted the

factum of the marriage, the family court could not have held that the

marriage between the parties was not legal and valid when that was not

the case of either of the parties.

8. Miss Satpute, the learned counsel for the respondent, has

supported the judgment of the family court. It is stated that since the

family court had noticed that the marriage was thrust upon the

respondent under coercion, the family court has rightly held that the

marriage between the parties was not legal and valid. It is submitted

that since the family court had recorded a finding that the marriage was

not valid and legal, the respondent has married Shri Yogesh Wairagade

before this family court appeal was filed. It is however fairly admitted

that the respondent had not sought a declaration that the marriage

between the parties was not legal and valid. The learned counsel

submitted that if this court is inclined to remand the matter to the

family court, the respondent may be permitted to amend the pleadings

accordingly, so as to seek the appropriate relief. The learned counsel

sought for the dismissal of the family court appeal.

9. On hearing the learned counsel for the parties and on a

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

points arise for determination in this family court appeal.

  2707FCA21.17-Judgment                                                               6/8


 (I)       Whether   the   family   court   was   justified   in   holding   that   the

marriage between the parties was not legal and valid?

(II) Whether the family court ought to have decided the petitions filed by the parties on merits?

(III) What order?

10. On a reading of the evidence tendered by the parties, it

appears that it is not in dispute that the marriage between the parties

was solemnized in Arya Samaj Bhavan, Nagpur on 30/01/2012. In the

petition filed by the appellant, he had clearly pleaded that the marriage

was solemnized on 30/01/2012 and since the respondent had deserted

the appellant without any just or reasonable excuse, a decree of

restitution of conjugal rights should be passed against the respondent.

The respondent had filed the written statement and had admitted that

the marriage was solemnized in Ayra Samaj Bhavan, on 30/01/2012.

The respondent has, however, pleaded that the marriage was performed

under coercion. It is pleaded that the respondent was forced to marry

the appellant in Arya Samaj Bhavan, on 30/01/2012. In the counter

claim, it is pleaded as to how the appellant threatened the respondent

to maintain relationship with him. By giving the instances pertaining to

the threats and coercion, the respondent has sought a decree of divorce

after pleading that the life of the respondent had become miserable due

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to the continuous harassment by the appellant even after the marriage.

It was nobody's case before the family court that the marriage should be

declared as null and void and a decree of nullity should be passed under

section 12 of the Hindu Marriage Act. The family court could have

allowed or rejected the petitions filed by the appellant and the

respondent but could not have recorded a finding that the marriage

between the parties was not legal and valid when that was not the case

of the respondent. The respondent had pleaded about the instances

that occurred before the solemnization of the marriage and after the

solemnization of the same to seek a decree of divorce. The matter

could have been decided by the family court by considering the

pleadings of the parties and the prayers made by them. However, the

family court could not have declared in certain paragraphs of the

judgment that the marriage between the parties was not legal and valid.

Though we find that the respondent has married with Shri Yogesh

Wairagade before the filing of the family court appeal in view of the

findings recorded by the family court and it would be really painful for

the respondent to again prosecute and defend the matter before the

family court, in the circumstances of the case, the judgment passed by

the family court is liable to be set aside. It would be necessary to

remand the matter to the family court to decide the same on merits in

accordance with law. In the circumstances of the case, the respondent

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would be entitled to amend the pleadings so as to seek the appropriate

relief. The parties are permitted to tender additional evidence, if they

so desire.

11. Hence, for the reasons aforesaid, the family court appeal is

partly allowed. The judgment of the family court is set aside. The

matter is remanded to the family court for deciding the petitions filed

by the parties afresh on merits in accordance with law. The family

court is requested to decide the petitions within 8 (eight) months.

Order accordingly. No costs.

                        JUDGE                                              JUDGE 


 KHUNTE