Bombay High Court
Tushar Anil Gujrathi vs Priti Tushar Gujrathi on 5 August, 2021
Bench: V. V. Kankanwadi
SA-387-2017 and 470-2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.387 OF 2017
WITH
SECOND APPEAL NO.417 OF 2017
TUSHAR ANIL GUJRATHI
VERSUS
PRITI TUSHAR GUJRATHI
...
Mr. Girish S. Rane, Advocate for the appellant.
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 05.08.2021
ORDER :-
. Both the appeals are between same parties. Notices were served
to the respondent, however, the respondent has not appeared.
2. Heard learned Advocate Mr. G. S. Rane for the appellant.
3. Both the parties are husband and wife. Their marriage took place
on 08.12.2001. They have daughter born on 15.09.2002. It is not in
dispute that since 03.11.2002, they are not residing together.
4. The appellant - husband had filed Hindu Marriage Petition
No.134 of 2010 before the learned Civil Judge Senior Division, Amalner
on the ground of cruelty and desertion. The petition was resisted. After
SA-387-2017 and 470-2017.odt
considering the evidence of both sides, the petition was dismissed on
16.03.2012. The appellant - husband filed Regular Civil Appeal No.17
of 2012 before the learned District Judge-2, Amalner. After hearing both
sides, the said appeal came to be dismissed on 14.07.2016. Those
judgments and decrees are challenged in Second Appeal No.387 of
2017. Further, it appears that the wife filed Hindu Marriage Petition
No.104 of 2011 before the learned Civil Judge Senior Division, Amalner
for restitution of conjugal rights and after considering the evidence, it
was also dismissed by the same judge on 17.04.2012. Wife went in
appeal by filing Regular Civil Appeal No.71 of 2012. It was also heard
by the same judge i.e. learned District Judge-2, Amalner and on the
same day i.e. on 14.07.2016, he allowed that appeal and granted the
decree of restitution of conjugal rights by allowing the original petition.
That decree is under challenge in Second Appeal No.417 of 2017.
5. Learned Advocate for the appellant has stated that the learned
Trial Judge, in fact, erred in dismissing the petition for divorce filed by
the husband as well as dismissing the petition filed for restitution of
conjugal rights by the wife. Those two contrary judgments could not be
kept in existence. In appeal, though the Appellate Court reversed the
decree dismissing the petition of the wife, yet, the Court erred in
granting that decree as well as confirming the decree of dismissal of the
SA-387-2017 and 470-2017.odt
petition for divorce filed by the husband. It is stated that the ground of
cruelty stated by the husband is the incident of usual wear and tear in
the matrimonial life and it does not amount to cruelty and the same is
not sufficient to grant decree of divorce. Both the Courts below have
failed to consider that admittedly since 03.11.2002, the wife has not
resumed the cohabitation. Even after the decision of the first Appellate
Court, she has not resumed and, therefore, substantial questions of law
are arising.
6. At the outset, it is to be noted that both the Courts below on the
facts had arrived at the conclusion that whatever incidents have been
given by the husband to seek decree for divorce are trifle in nature or
the usual wear and tear in the matrimonial life. Those facts cannot be
considered once again in detail because only one incident appears to
have been stated by him. It is stated that the wife used to give threat to
commit suicide and also was demanding money from him. Money might
have demanded for running the house, because the husband has not
stated how much money was demanded by her and even if once in
another, if she had stated something about committing suicide that does
not amount to continuous threat amounting to cruelty to the husband.
Both the Courts below have considered the evidence as well as law on
the touchstone of the judgments of the Appellate Court and, therefore, it
SA-387-2017 and 470-2017.odt
does not give rise to any substantial questions of law in this case.
Whatever anomaly was created due to the dismissal of the petition for
restitution of conjugal rights by the learned Trial Judge has been set
right by the first Appellate Court. When there is reasonable ground for
the wife to stay separate from the husband and in spite of decree, the
appellant is not explaining as to why he had not brought her for
cohabitation, rather in his testimony he has refused to take her for
cohabitation, though that expression was given by the wife, the decree
does not require any interference. Both the appeals deserve to be
dismissed as they are not raising any substantial questions of law as
contemplated under Section 100 of the Code of Civil Procedure.
Accordingly, both the second appeals stand dismissed.
[SMT. VIBHA KANKANWADI, J.]
scm
