Bombay High Court
Leeladhar Baliram Tayde vs Leelabai Liladhar Tayde on 30 August, 2021
Bench: V. V. Kankanwadi
sa-557-2013.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.557 OF 2013
LEELADHAR S/O BALIRAM TAYDE
VERSUS
SAU. LEELABAI LILADHAR TAYDE
...
Mr. A. M. Gholap, Advocate for appellant.
Mr. P. N. Kutti, Advocate for the respondent. (Absent)
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 30.08.2021
ORDER :-
. Present appeal has been filed by original petitioner. He had filed
Hindu Marriage Petition No.10 of 2003 before learned II nd Ad-hoc
Additional District Judge, Jalgaon for dissolution of marriage under
Section 13 (1) (a) and (b) of Hindu Marriage Act. The said petition
came to be decreed on 08.12.2005. Present respondent had challenged
the said judgment and decree before learned District Judge-2, Jalgaon
by filing Regular Civil Appeal No.44 of 2006. The said appeal came to be
allowed on 30.04.2012, thereby setting aside the decree passed by the
learned Trial Judge and dismissing the marriage petition. Hence, this
second appeal.
sa-557-2013.odt
2. Heard learned Advocate Mr. A. M. Gholap for the appellant.
3. It has been vehemently submitted on behalf of the appellant that
the learned first appellate Court has not appreciated the evidence and
law points properly. The learned Trial Judge had held that respondent-
wife had treated the petitioner-husband with cruelty and, therefore, had
dissolved their marriage. While appreciating the evidence, learned
appellate Judge had unnecessarily taken contrary view. The learned Trial
Judge had found that the wife had made reckless allegations against
husband and then went on to lodge criminal cases against him. Filing of
false cases against husband amounts to cruelty. The appreciation of
evidence by the learned Trial Judge was correct. The appeal ought to
have been dismissed. Substantial questions of law are arising in this
case, as the findings arrived at by the learned First Appellate Court is
perverse to the evidence adduced.
4. The learned Advocate appearing for respondent was absent. It is
to be noted that in view of Ashok Rangnath Magar Vs. Shrikant
Govindrao Sangvikar, [(2015) 16 SCC 763], it is not necessary to hear
the respondent. If the appellant shows that substantial questions of law
are arising in the case, second appeal needs to be admitted. Hence, it
requires to be seen whether case is made to frame substantial questions
sa-557-2013.odt
of law.
5. The relationship between the parties is not denied. The original
petitioner got married to respondent in the year 1978. They have one
son and one daughter from the wedlock.
6. The petitioner-husband contended that respondent cohabited
properly with him only for a period of 1 to 1 ½ year after marriage. She
thereafter started insisting that he should pay money to her parents
towards their maintenance. Wife used to avoid doing household work
and used to quarrel with him. There were attempts by him to persuade
her, but in vain. She left the house of husband on her own accord about
17 years prior to the petition. She has unnecessarily withdrawn herself
from his company and deserted him without any reason. Her acts and
behaviour is cruel to him. He, therefore, prayed for dissolution of
marriage.
7. Respondent-wife had resisted the averments in the petition. She
had blamed the husband. Husband is addicted to liquor and used to
harass her mentally and physically. She was beaten by husband and,
therefore, she went to her parents' house with children. She was
required to file cases against him as he was not making provision for
their maintenance. Competent Court has granted maintenance to them.
sa-557-2013.odt
8. The learned Trial Judge found the treatment of the wife towards
husband to be cruel; whereas the appellate Court found it not cruel. It
was found by the learned Appellate Court that wife had reasons to stay
away from the husband and in fact he has deserted her. The decree has
been therefore reversed.
9. It is to be noted that the same acts/events have been considered
by both the Courts below contrary. Therefore, when the appreciation of
evidence has been done in such a way, it needs to be considered from
the point of view of law. Admittedly, the couple is not residing together
since last more than 17 years prior to petition. There was also the act of
filing various criminal matters by the wife against husband. One Court
says that filing of those matters amounts to cruelty; another says not.
Whether first appellate court was justified in reversing the decree is
required to be considered. Merely because a second view is possible,
whether appellate Court can consider that second view? Therefore, case
is made out for admitting the second appeal.
10. Second appeal stands admitted. Following are the substantial
questions of law:
I) Whether the learned First Appellate Court was justified in
interfering with the judgment and decree passed by the learned Trial
Judge?
sa-557-2013.odt
II) Whether the wife had treated husband with cruelty?
III) Whether judgment and decree passed by learned Trial Judge
needs to be restored?
11. Since the learned Advocate for the respondent was absent when
the matter came up for admission, issue notice to the respondent
returnable on 03.01.2022.
12. Call Record and Proceedings.
[SMT. VIBHA KANKANWADI, J.]
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