Dr. Leena W/O. Prashant Bangde vs Prashant S/O. Tulshiram Bangde
2021 Latest Caselaw 2369 Bom

                                         1                              J-FCA-40-2016.odt



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 NAGPUR BENCH : NAGPUR.
           FAMILY COURT APPEAL (FCA) NO.40 OF 2016
        Dr. Leena W/o Prashant Bangde,
        Aged-44 years, Occupation-Medical
        Practitioner, R/o 68, Azad Hind Nagar,
        Trimurty Nagar Road, Nagpur.
        Tahsil & District-Nagpur [M.S.]
                                                                       (Org. Respondent)


                                                                    ... APPELLANT
                // Versus //
        Prashant S/o Tulshiram Bangde,
        Aged-42 years, Occupation-Service,
        R/o 68, Azad Hind Nagar, Trimurty Nagar
        Road, Nagpur, Tahsil and District-Nagpur
        [M.S.]                                                            (Org. Petitioner)


                                                                   ... RESPONDENT

----------------------------------------------------------------------------------------
Shri. A. N. Ansari, Advocate for the appellant
Shri. S. T. Dhurwey, Advocate for the respondent.
------------------------------------------------------------------------------------------------
                CORAM              :       A. S. CHANDURKAR AND
                                           N. B. SURYAWANSHI, JJ.
                DATED              :         05/02/2021

JUDGMENT (Per :N. B. SURYAWANSHI, J.)

This appeal fled by the wife under Section 19 of the

Family Courts Act, 1984, takes exception to the judgment of the

Family Court, Nagpur in Petition No.A-794 of 2010, thereby

granting a decree of judicial separation in favour of the

husband.

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2. Facts leading to this appeal, in brief, are as follows :

The husband fled petition under Section 10 and

13(1)(i-a) of the Hindu Marriage Act, 1955 (for short, "the said

Act") against the wife contending that their marriage was

solemnized on 26.06.2009 at Nagpur, as per Hindu rites and

customs prevailing in their community. Before the marriage,

the husband had passed B.Sc. B.Ed and he was in the service of

Pharmaceuticals Company and had a touring job and the same

was informed to the family of the wife. It was also informed

that the husband may be required to go out of the station for

his job and at some times, he might come home late. The

husband was residing alongwith his retired father and mother.

The wife's side informed that she had obtained B.H.M.S. Degree

and she was doing the job at Care Hospital, Ramdaspeth,

Nagpur and was earning a salary at Rs.8,000/- per month. The

wife had given her biodata in her own handwriting, wherein her

date of birth was mentioned as 30.11.1973. The husband's

date of birth was 20.08.1973. After the marriage, the wife

started residing in the joint family of the husband. They went

to Pachmarhi for honeymoon and everything was normal. The

wife was doing household work and she was also attending her

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job at Care Hospital. There was no complaint upto three

months from the marriage. The husband's sister Kiran used to

come to the house of the husband for tailoring work as her

house was very small. She used to come at 11.00 a.m. with her

own tifn and used to leave at 5.00 p.m. During that period,

the wife used to be on duty at Care Hospital, therefore, there

was no communication between Kiran and the wife. Arti, the

daughter of the elder sister of the husband was taking the

education of LLB in Ambedkar College, Dikshabhoomi, Nagpur

and she was staying in the house of the husband from July,

2010. The wife was not liking Kiran and Arti's presence in the

house. Initially, the wife was contributing Rs.2,000/- per month

towards family expenses, but after three months of the

marriage, she stopped the contribution. It was further

contended that from October, 2009, the wife's conduct became

abnormal. She started quarreling with the husband. After

coming from duty, she used to straightway go to her bedroom

and used to lock it from inside. She was not responding to the

family members. The parents and brother of the wife were

informed about her abnormal conduct. The wife's brother came

and used arrogant language towards the husband and his

family members. Her brother alleged that the husband was not

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mentally and physically sound to keep marital relations with

wife, because of which, the wife did not conceive. He blamed

the husband's sister Kiran for the same. At that time, Kiran was

staying in the house of the husband, as she had sufered an

accident. The wife's brother warned that if Kiran did not go

away within two days, he would throw her luggage out. He also

threatened to lodge police complaint against the husband and

his family members. In the meanwhile, the wife conceived.

However, the fetus was sufering from cardiac problems, hence

Dr. Shembhekar suggested abortion. He also suggested to

abstain from sexual relations upto six months. He advised

them to consult Dr. Sanjay Deshpande for counselling on sex

education. The husband therefore consulted Dr. Deshpande. He

further contended that due to abortion, the wife was mentally

disturbed. She used to unnecessarily quarrel with the husband's

family members. She used to force the husband to have sexual

relations saying that she wanted the child at the earliest.

The husband was avoiding sexual relations as per the advice of

the Doctor. When the husband saw the medical papers of the

wife, he noticed that it was mentioned in the medical papers

that due to age factor, the wife should conceive early. The

husband therefore asked her about her date of birth.

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He then came to know that her birth date was 30.11.1971 and

she was two years elder than him. The wife told her father-in-

law that she wanted divorce from the husband on 02.04.2010

and in the frst week of May, 2010. He contended that in fact

from 04.05.2010, the wife started sleeping in another room and

restrained the husband from entering that room. She stopped

talking with him and the family members. She started

preparing food only for herself and she stopped taking part in

household work and religious programmes. She threatened him

and the family members to implicate them in cases under

Section 498-A and under the Domestic Violence Act, 2005. The

wife also extended threats that she would commit suicide. On

28.09.2010, the wife asked the husband that if his sister Kiran

and niece Arti would not leave the house permanently within a

day, she would lodge a complaint in the Police Station. The

husband informed about the said threats to Rana Pratap Nagar

Police Station. During Diwali on 13.10.2010, the wife did not

participate in Laxmi Pujan, she also tried to disturb the Puja.

On that day, mother-in-law of the wife prepared food for all the

family members, but the wife threw the entire food in the

dustbin outside the house. On 18.11.2010, the wife lodged a

complaint under Section 498-A read with Section 34 of the

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Indian Penal Code against the husband and his family members

due to which, they were arrested and after they were produced

before the learned J.M.F.C. Court, they were released on bail.

The husband thereafter attended the Court counsellor and

before the Hitguj Mahila Mandal. The Husband contended that

the counselling could not succeed due to arrogant behavior of

the wife and her demand that she wanted the house property in

her name for giving divorce. On 02.01.2011, the wife woke up

early in the morning and directly went in the bedroom of her in-

laws and started searching something. When the mother-in-law

enquired, she told that she was searching for tooth pest. The

wife suddenly started quarreling and abusing mother-in-law and

gave her dash because of which, the mother-in-law sustained

injury. When the husband tried to help his mother, the wife

took a chair in her hand and tried to beat the husband, due to

which he also sustained injury. When the neighbors gathered to

save the husband and his family members, the wife threatened

to involve them in the criminal cases. This incident was

informed by the husband to Pratap Nagar Police Station. The

wife also fled case of this incident and ofence under Sections

323, 294, 506-B read with Section 34 of the Indian Penal Code.

Again the husband and his parents were produced before the

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learned J.M.F.C. and were released on bail. From 03.01.2011,

the wife had taken independent possession of the bedroom and

started to lock it whenever she left home. She was giving

mental trouble to the respondent and his family members. The

wife was not following any timings while leaving home and

coming back. Sometimes, she did not return home for 2 - 3

days. The husband and his family members were apprehending

that the wife may implicate them so as to harass them. The

wife wanted house property transfered in her name, therefore

she was harassing the husband and his family members

physically, mentally, economically and socially. Even the

neighbors were afraid of keeping relations with the husband

and his family members. On these contentions, the husband

prayed for a decree of divorce on the ground of cruelty and in

the alternate, he prayed for a decree of judicial separation to

avoid further complications.

3. The wife opposed the petition by fling written

statement (Exh-19-A) and denied all the allegations. She

claimed that the husband had not made out any ground for a

decree of divorce. She contended that the husband and his

family members had the knowledge that her birth date was

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30.11.1971. Considering her qualifcation and salary, the

husband and his family members agreed for the marriage

though the wife was elder than the husband. She contended

that after three months of marriage, the husband, in-laws,

sister-in-law Kiran and niece Arti started ill-treating her. On

account of demand of her entire salary, they used to mentally

and physically harass her. When the ill treatment went beyond

her tolerance limit, she lodged the complaints with Rana Pratap

Nagar Police Station on 27.09.2010 and 28.09.2010. Since the

harassment continued, thereafter she lodged FIR No.235 of

2010 on 05.10.2010 for ofence punishable under Sections

498-A, 506-B read with Section 34 of the Indian Penal Code.

With a view to give counter blast to the said complaints, the

husband started creating documentary evidence by lodging

false complaint against her. On 02.01.2010, in the morning,

when the wife went to take toothpaste from Almirah, her

mother-in-law came and stopped her from taking toothpaste.

When the wife told her that she had every right to reside in the

matrimonial home, the husband came there and abused her

and asked her to leave the matrimonial home. On her refusal,

she was beaten by the husband. Therefore, she was

constrained to lodge a report to Rana Pratap Nagar Police

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Station, which was registered at Crime No.3008 of 2011 under

Sections 294, 323, 506-B read with Section 34 of the Indian

Penal Code. The wife claimed that she was staying in the

matrimonial home with a hope that someday the husband

would realize his mistakes and the marital relations would

improve. She therefore prayed for dismissal of the petition.

4. The learned Family Court after recording the

evidence though denied the decree of divorce on the ground of

cruelty, passed a decree of judicial separation in favour of the

husband. Hence, the present appeal by the wife.

5. Heard learned advocate for the appellant and

learned advocate for the respondent.

6. The learned advocate for the appellant submitted

that when the Family Court had come to the conclusion that the

husband had failed to prove the cruelty on the basis of the

same evidence, the Family Court could not have passed the

decree of judicial separation. According to him, there is no

material on record to justify the impugned decree of judicial

separation. He further submitted that taking into consideration

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the evidence on record, the Family Court ought to have

dismissed the petition fled by the husband as no case was

made out by the husband for decree of divorce or for judicial

separation. According to him, the Family Court has wrongly

appreciated the evidence and has recorded incorrect fndings.

He therefore submitted that the present appeal deserves to be

allowed by setting aside the decision of the Family Court. The

learned advocate for the appellant in support of his submissions

placed reliance on the following decisions :

1)       A K ..Vrs.. S S K, 2019(2) JCC 1188

2)       Mamta ..Vrs.. Manjit, 2019(2) PLR 264

3)       Mamta Singh Thakur W/o Chitrabhuwan Singh Thakur

Vrs.. Chitrabhuwan Singh Thakur S/o Ramlal Singh Thakur,

2017(4) CivilLJ 825.

7. On the other hand, the learned advocate for the

respondent supported the decision of the Family Court by

submitting that the material on record shows that repeated

complaints were lodged by the appellant against the

respondent and his family members and they were harassed. It

is clear from the evidence that the appellant and the

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respondent are not compatible with each other and their

marriage appears to be irretrievably broken. He submitted that

the trial Court has given proper reasoning and it was justifed in

granting the decree of judicial separation in the peculiar facts of

the present case. He therefore stated that there is no merit in

the appeal and the same is liable to be dismissed.

8. Heard learned advocate for the appellant and the

learned advocate for the respondent at length and we have

perused the record.

9. Considering the rival contentions, following points

arise for determination :

i) Whether the judgment of the Family Court

granting a judicial separation is legally correct ?

              ii)      Whether the learned Family Court was

              justifed        in    granting   a   decree      of     judicial

separation in favour of the respondent when his

case of divorce on the ground of cruelty was

rejected ?

              iii)     What order ?





                                  12                   J-FCA-40-2016.odt

10. To consider the issue involved, it is necessary to

appreciate the evidence on record. The husband examined

himself in support of his claim. He deposed in terms of his

pleadings. In the cross, he admitted the complaints lodged by

the wife against him and his family members under Section

498-A of the Indian Penal Code. He stated that as sometimes

Police used to avoid taking complaints, therefore he forwarded

the said complaints to the Police by Post. He also admitted the

complaints lodged by the wife to Pratap Nagar Police Station

under Sections 294, 506-B and 323 of the Indian Penal Code. He

could not give any reason, as to why, he did not mention about

cheating on the part of the wife and her parents by giving her

incorrect birth date and why that was not mentioned in his

report Exh-30 dated 04.10.2010. He denied that prior to the

marriage, he had knowledge that the wife's birth date was

30.11.1971. He denied to have made detail enquiry about the

wife before the marriage. He deposed that he had believed on

the information given by the wife's family, therefore he had not

made any enquiries. He denied the suggestions that his sister

Kiran and niece Arti used to interfere in their married life and

they used to harass the wife. He claimed to have accompanied

the wife for treatment during pregnancy, but he stated that he

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did not have any document to show that the wife was unable to

deliver the child. He denied the suggestion that the wife was

able to conceive and deliver a child. He further stated that he

had provided fnancial help to the wife for 4 - 5 times. After

fling of the petition, he stopped providing fnancial help to the

wife. Since the wife was residing in his house, she was using

entire facilities available in the house. He further deposed that

evenafter fling of the petition, he had voluntarily and willingly

provided necessary, articles, clothes and medicines to the wife.

According to him, it was in the form of help to the wife. He

denied the suggestion that all the complaints fled by him, were

fled after consultation with his advocate. He admitted that the

wife had lodged complaint against him before Mahila Cell and

he received notice of the same. He also admitted that the said

complaint was lodged before fling of the divorce petition and

that prior to the said complaint, he did not fle any complaint

against the wife or her family members in the Police Station.

He denied that with a view to give counter blast to the

complaint of the wife, after thought, he started lodging

complaints. He stated that Exh-30 was his frst complaint

against the wife and her brother. He had given handwritten

complaint to the Police, but the Police had written the same in

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their own language. He deposed that he had mentioned all his

complaints against the wife in his handwritten report, but the

said report was kept by the Police with them. He denied that as

there was no ill treatment to him at the hands of the wife,

therefore he had not mentioned about any such complaint in

his report and therefore he had not produced copy of the

handwritten report. He denied that all the complaints lodged

by him were false and police have not registered any ofence on

the basis of his reports Exhs- 34 and 35. He did not know

whether the Police had registered any ofence against the wife

on the basis of his reports Exhs-31, 41, 44, 47, 48, 50, 59, 64,

66, 69, 72, 75, 78, 81, 84, 87, 90, 106, 107, 108, 110, and 113.

He denied that he created false documentary evidence to give

counterblast to the complaints of the wife. He admitted that he

did not fle any private complaint in respect of all his police

complaints and that in order to save himself from the

prosecution under Section 498-A of the Indian Penal Code, he

had fled the divorce case. He admitted that he did not take

any written opinion of Medical Expert about the wife's inability

to conceive. He volunteered that he had taken oral opinion

from the Medical Expert. He was not sure whether he was

going to examine the said expert or not ? He admitted that he

15 J-FCA-40-2016.odt

did not take any medical opinion about the wife's inability to

conceive. He admitted that at the time of marriage proposal,

he informed the wife's parents that he was M.Sc., but it was a

fact that at that time he had not completed M.Sc. He admitted

that the wife had asked him to prepare marriage certifcate and

for that purpose, she had flled up entire form and handed over

the relevant documents to him. He admitted that till the date

of deposition, their marriage was not registered. He denied

that he and his family members were insisting the wife to abort

the child. He admitted that the wife had been to hospital of Dr.

Shembhekar for her treatment and Dr. Shembhekar opined that

the cardiac activity of the fetus was absent. He denied the

suggestions in respect of giving ill treatment to the wife.

11. The mother of the husband, Sau. Sakuntala Bangde

was examined as PW-2. She deposed on the same lines of the

husband. She deposed that the wife used to abuse her by

calling her Kamini, Sali, Haramkhor, Buddhi, Choukidar, Satimai,

Chetkin, etc. and similar abuses were heard by her husband.

The wife used to call her father-in-law as Sala Buddha,

Haramkhor, Napunsak, Namard, etc.

16 J-FCA-40-2016.odt

12. In the cross-examination, she deposed that she had

informed the incidents mentioned in her evidence of afdavit to

the husband. She did not remember her date of marriage, but

she stated that it was her second marriage and the husband

was begotten from the frst marriage of her husband and she

was step mother of the husband. She admitted that from her

both marriages, she had no issue. She admitted to have visited

the wife's maternal home prior to the marriage and having a

detail talk with her parents. She claimed that she did not see

the wife's documents about education. She did not know that

due to emergency, the Doctor and the staf had to stay in the

hospital even beyond working hours. She further stated that

the wife used to wake up about 6.30 a.m. and after taking bath,

she used to prepare her lunch tifn. Initially, during her leave

period, the wife used to cook breakfast, lunch and dinner for all

the family members. The wife used to go for duty at about 8.00

a.m. and there were no fxed timing of her return. Even the

husband had no fxed timing and he was required to go on tour

for 3 - 4 days in a week. She admitted, the wife lodged reports

against them in the Police Station as well as at Mahila Cell. She

admitted that she had never taken the wife to the hospital at

any time. She denied the suggestions that she, her daughter

17 J-FCA-40-2016.odt

and Arti used to ill treat the wife and used to interfere in their

marital life. She admitted that since the time of the marriage,

the wife was residing in the same room. She denied other

suggestions.

13. The wife examined herself and deposed in terms of

her written statement. During the cross-examination, she

deposed that at the time of marriage proposal, she had given

her biodata to the husband. She denied that she had given

handwritten biodata and volunteered that she had given only

printed biodata. She stated that her details were mentioned in

the biodata Exh-119, but it was not in her handwriting. She

admitted to have enrolled her name in the marriage bureau and

that her birth date was 30.11.1971. She also admitted that in

the biodata given by her to the marriage bureau, her birth date

was mentioned as 30.11.1972. She volunteered that she had

not given/mentioned the said date of birth. She admitted that

the husband was 1 ½ year younger than her. She deposed that

after the marriage for 4 - 5 months, her duty was between

12.00 O'clock to 8.00 p.m. and thereafter, it was 8.00 a.m. to

4.00 p.m. She denied the suggestions that her sister-in-law was

doing stitching work at the wife's matrimonial home between

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11.00 a.m. to 5.00 p.m. and she was carrying tifn. She also

denied that only for few months niece Arti had stayed in their

house and that she was doing entire household work. She

denied that she and her brother insisted for driving away

sister-in-law Kiran and niece Arti from the matrimonial home.

She admitted that at the time of Diwali festival of 2009, her

father had given some cash to the husband for purchasing new

clothes. She also admitted that the husband had returned the

said amount to her father. She admitted her pregnancy and the

advice given by the Doctor for abortion, as the fetus had no

heart beats. At that time, the husband had given consent for

abortion. She denied that Dr. Shembhekar advised them not to

keep sexual relations for six months. She admitted that they

were referred to Dr. Sanjay Deshpande by Dr. Shembhekar.

She, however, denied that Dr. S. Deshpande advised them for

not keeping physical relations for six months. She denied that

she used to force the husband to keep physical relations and on

that ground used to quarrel with him. She denied that on

02.04.2010, she told her father-in-law that she wanted a

divorce and since that date, she had not permitted the husband

to enter her bedroom. She admitted that she used to lock the

bedroom while going on duty, she started the said practice

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since January 2011. She admitted to have lodged complaints

under Section 498-A of the Indian Penal Code against the

husband. She denied that the arrest of the husband and his

neighbors was celebrated by her and her maternal relatives.

She denied the suggestion that on 02.01.2011, she entered in

the room of in-laws and was checking their Almirah and

thereafter, she quarreled with them, at that time, she pushed

the mother-in-law due to which, her mother-in-law fell down.

She also denied that at that time on arrival of the husband, she

had beaten him and torn his clothes. She denied that at that

time, the neighbors Mr. Nigot and Mrs. Mukadam arrived there.

The wife volunteered that the husband had called them. She

denied that Mr. Nigot and Mrs. Mukadam gave her

understanding and therefore she quarreled with them. She

denied that the alleged incident on that date took place

between 7.30 to 8.30 a.m. She volunteered that the incident

took place between 8.00 to 8.30 p.m. She admitted that the

husband had reported the incident to the police and on the

same day she lodged a report against the husband and his

family members. She admitted that the criminal prosecutions

are pending in the Court against the husband. She admitted

that she and her brother obtained anticipatory bail in respect of

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the report lodged by the husband and that one prosecution is

pending against her and her brother in the Court. She denied

in the incident dated 02.01.2011, her mother-in-law sustained

injury on her head and she was referred for medical

examination. She denied that she had mentally and physically

tortured the husband and his family members and that all the

reports lodged by the husband against her were true and

correct.

14. On careful appreciation of the evidence on record, it

is revealed that vague and general allegations of cruelty were

levelled by the respondent against the appellant. Merely giving

a false date of birth does not in any manner establish cruelty.

In view of admissions of the respondent that for registration of

marriage, the appellant had duly flled the form and handed

over relevant documents to the respondent, it is difcult to

accept the contention of the respondent that before marriage a

false birth date was given by the appellant. Though the

respondent denied that their marriage was settled with the

intervention of Badwaik Marriage Bureau, he has admitted that

his name was registered in that marriage bureau. The

appellant has also specifcally stated that her name was

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registered in Badwaik Marriage Bureau. In view of these

circumstances on record, it is difcult to believe the case of the

respondent that the appellant gave a false date of birth. Apart

from the fact, that by itself, in absence of any other material

does not prove cruelty.

15. The contentions of the respondent in respect of his

abstinence from sexual relations for six months, on medical

advice are not substantiated. He has neither produced any

documentary evidence nor examined doctor to prove those

contentions. On the contrary he admitted that the appellant

brought certifcate from Dr. Deshpande that she was ft for

sexual intercourse. His contention that he was avoiding sexual

intercourse on medical advice cannot be accepted in these

circumstances. The insistence on the part of the appellant for

sexual relations can not be termed as cruelty. No fault can be

found with the expectation of the wife to have healthy sexual

relations with the husband which can be said to be natural

human conduct on the part of the wife. This expectation by no

stretch of imagination can be termed as cruelty.

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16. The contentions of the respondent that the appellant

used to stay away from the family without informing either him

or the family members and her duty hours were not regular are

also unacceptable. Admittedly, even prior to the marriage, the

appellant was doing the job at Care Hospital. Being a Doctor

serving in a hospital, her duty hours were not fxed and many

times, she was required to stay beyond the duty hours for

attending the emergency cases. She was also required to go

to the hospital at any time for attending the emergency

situation. Anyway this does not make out cruelty on the part of

appellant towards the respondent. This fact was known to the

respondent and his family members. Even the respondent had

no fxed duty hours and he used to come late in the night from

duty and he was required to go out of station 3 - 4 days a week,

therefore, those contentions were not available to the

respondent.

17. The other allegations of the respondent that the

appellant was not cooking food, she had thrown the food

cooked by his mother in the dustbin, etc, those are also not

believable in view of the admissions given by his mother PW-2.

She admitted that initially while on leave, the appellant used to

23 J-FCA-40-2016.odt

cook breakfast, lunch and dinner for all the family members.

The appellant used to wake up at about 6.30 a.m. and after

taking bath, she used to prepare her lunch tifn and she used

to carry the same. PW-2 also deposed that the husband used

to inform her about happening of good things in his married life.

The allegations of the respondent that the appellant was not

cooking food for the family, she was not liking presence of

sister-in-law Kiran and niece Arti in the house etc. are normal

wear and tear of married life. The said allegations are of

general nature and they do not in any manner spell out cruelty.

Merely because the appellant had lodged complaints under

Section 498-A in the Police Station that itself would not be a

ground of cruelty. Admittedly, the respondent has forwarded

number of complaints to the police authorities, it appears that

only with a view to give counter blast to the complaints under

Section 498-A lodged by the appellant. Thus, the respondent

failed to make out a ground of cruelty in his evidence before

the learned Family Court.

18. The learned Family Court after considering the

evidence on record has rightly came to the conclusion that the

respondent failed to make out the ground of cruelty. It was

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observed that the evidence of the respondent and his mother

Shakuntala was inconsitant with each other and there was

variance in their evidence. The learned Family Court, therefore,

denied the decree of divorce on the ground of cruelty to the

respondent. The learned Family Court was right in denying

decree of divorce in favour of the respondent. These fndings

have not been challenged by the respondent.

19. The learned Family Court has taken into

consideration the report of marriage counsellor who was asked

to visit the house of the respondent and to inspect the

premises. The report Exh-150-A indicated that there was no

electricity and water in the kitchen. There was dust on the

kitchen platform and dinning table. The fridge was locked and

was not in use. The learned Family Court noted that PW-2

deposed that the appellant was cooking food on induction gas

in her own room. The respondent was not fetching gas cylinder

under apprehension that the appellant would use it. There was

no water and electricity in the bathroom and the toilet.

According to the learned Family Court, it showed that the

relationship between the parties had been irretrievably broken

down, but that could not be a ground to dissolve the marriage.

25 J-FCA-40-2016.odt

The learned Family Court, however, recorded a fnding that " it

is difcult to the parties to cohabit together and that they may

not adjust with each other, a decree of judicial separation can

be passed so as to avoid the complications" and hence

proceeded to grant a judicial separation.

20. In the present matter, the question therefore arises

that if the Court after appreciating the evidence comes to a

conclusion that a spouse is not entitled for a decree of divorce

then, whether on the basis of same evidence, the Court would

be justifed in granting a decree of judicial separation ?

At this stage, it is necessary to consider the relevant

provisions in the context of the facts of the present case ;

"10. Judicial Separation.- (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specifed in sub-section (1) of Section 13, and in the case of a wife also on any of the grounds specifed in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.

                                     26                        J-FCA-40-2016.odt



            (2)                Where a decree for judicial separation

has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the Court may, on the application by petition of either party and on being satisfed of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so."

13. Divorce.- (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party -

(i) ...........

(i-a)has, after the solemnization of the marriage, treated the petitioner with cruelty;

"13-A. Alternative relief in divorce proceedings.- In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except insofar as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the Court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation."

27 J-FCA-40-2016.odt

Section 13-A grants a discretion to the Court having

regard to the circumstances of the case to pass a decree for

judicial separation instead of passing a decree for divorce.

Hence, if the Court on the basis of evidence comes to a

conclusion that the decree of divorce can be passed, instead of

passing the decree of divorce having regard to the

circumstances of the case, the Court may pass a decree of

judicial separation. Section 13-A confers discretion on the

Court which needs to be exercised in judicious manner. Under

Hindu Law, marriage is a sacrament and it is not dissolved

easily. There has to be cogent and reliable proof in support of

the grounds mentioned in Section 13 for grant of decree of

dissolution of marriage. If the Court fnds that the petitioner is

not entitled for decree of divorce, it can not in the alternate

grant, a decree for judicial separation in absence of any

evidence led by the parties, merely for asking.

21. The Court would be entitled to exercise discretion in

favour of the petitioner by granting him a decree for judicial

separation only in the event, the petitioner proves his case for

decree of divorce and the Court fnds him entitled for the

decree of divorce on the grounds mentioned in Section 13.

28 J-FCA-40-2016.odt

Conjoint reading of Sections 10, 13 and 13-A , makes it clear

that a discretion is given to the Court to grant alternate relief of

judicial separation in the event, the petitioner makes out a case

for grant of decree of dissolution of marriage/divorce in his

favour. It is only then that the Court can exercise discretion

taking into consideration the circumstances of the case and

instead of passing a decree of divorce, pass a decree of judicial

separation.

22. The issue in the present case is of propriety on the

part of the learned Family Court in granting such alternate relief

in absence of any material to justify the grant of such relief.

Coming to the facts of the case in hand, the learned Family

Court rejected the prayer of the respondent for grant of decree

of divorce on the ground of cruelty, by coming to the conclusion

that he has failed to prove the cruelty. In the Family Court, the

parties did not lead any evidence in respect of judicial

separation. Thus in absence of any material on record, the

learned Family Court granted a decree of judicial separation in

favour of the respondent, merely for asking. The learned Family

Court has misread and misconstrued the provisions of Sections

10, 13 and 13-A of the Hindu Marriage Act, 1955 and has erred

29 J-FCA-40-2016.odt

in granting decree of judicial separation particularly in the light

of the fnding that the respondent failed to prove his case for

divorce on the ground of cruelty. The material on record

indicates that the allegations made by the respondent against

the appellant were vague and general and at the most they can

be termed as normal wear and tear of married life. Admittedly,

the appellant is staying in the matrimonial home. In these

circumstances, there was no occasion for the learned Family

Court to abruptly come to a conclusion that it was difcult for

the parties to cohabit together and therefore the decree of

judicial separation was required to be passed to avoid

complications. The said fndings of the learned Family Court are

based on wrong interpretation of relevant provisions as well as

wrong appreciation of evidence on record. The learned Family

Court has drawn unwarranted inferences.

23. The learned Family Court has failed to take into

consideration the object behind introduction of the provision of

judicial separation. The provision of judicial separation was

introduced in Hindu Marriage Act, 1955 with an object of taking

into consideration the high ideals of the Hindu Community

about marriage and with an object that divorce should not be

30 J-FCA-40-2016.odt

easily granted. It was introduced so as to provide maximum

opportunities to the parties for mutual adjustment and the

decree of judicial separation is to be granted only if the grounds

specifed in sub section (1) of Section 13 are made out.

24. A useful reference can be made to the observations

of the Learned Single Judge of this Court in Prabhakar S. Nikam

...Vrs... Satyabhama P. Nikam, AIR 2008 Bombay 129,

wherein Section 13-A was interpreted in the context of decree

of judicial separation. It was held :

"This Section cannot be interpreted to mean that the Court can or ought to grant a decree for judicial separation where it cannot or does not grant decree for divorce. If the Section is interpreted in the way as suggested, every petition may either end in a decree for divorce or judicial separation. There would be no occasion to dismiss the petition for divorce at all. The Legislature certainly did not intend to grant decree for judicial separation even where no ground for divorce was made out. Therefore, to my mind, the Section has to be interpreted diferently. What Section envisages is that even where ground for divorce is made out, the Court may refuse decree for divorce and instead grant a decree for judicial separation. Therefore, essentially the appellant must

31 J-FCA-40-2016.odt

frst make out a ground for divorce and then the Court may exercise its discretion to grant decree for judicial separation or a decree for divorce. When no ground is at all made out, there could be no occasion to use the discretion. In the instant case, we have found that the fnding on issue of desertion and cruelty has gone against the appellant/petitioner and that has assumed fnality. There, therefore, exists no ground for divorce. Necessarily, therefore, the Court cannot exercise the discretion of granting decree for judicial separation."

We are in respectful agreement with the above

observations and we afrm the above view. If we apply the

above ratio to the facts of the present case, it is clear that the

impugned judgment of the learned Family Court cannot be

sustained.

25. In the light of the aforestated discussion, we are of

the considered view that the learned Family Court was justifed

in denying a decree of divorce on the ground of cruelty to the

respondent. The learned Family Court was right in coming to

the conclusion that the respondent had failed to prove cruelty

at the hands of the appellant. But according to us, the learned

Family Court misdirected itself in granting a decree of judicial

separation in favour of the respondent. Admittedly, the

32 J-FCA-40-2016.odt

respondent has not challenged the fnding of the learned Family

Court that he was not entitled for a decree of divorce on the

ground of cruelty. The said fnding therefore against him has

become fnal. In that view of the matter, also since the

respondent had not made out a case for the decree of judicial

separation, the learned Family Court erred in granting the

decree of judicial separation in favour of the respondent. We

therefore answer the point nos. (i) and (ii) accordingly.

26. We therefore pass the following order :

i) The Family Court Appeal No.40 of 2016 is allowed.

ii) The impugned judgment of the learned Family Court

is hereby set aside.

iii) Petition No.A-794 of 2010 fled by the respondent

husband is hereby dismissed.

        iv)                Parties to bear their own costs.



                                              JUDGE                   JUDGE




TAMBE