Kartik Narayan Dhawle vs Vaishali Kartik Dhawle
2021 Latest Caselaw 3331 Bom

                                       1                             FCA 76.15



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

                 FAMILY COURT APPEAL NO.76 OF 2015


  Kartik Narayan Dhawle,
  Aged about 37 years,
  Occupation-Service,
  Residence of Plot No.12,
  Ashirwad, Mangaldham Society,
  Near Prabhodhankar School,
  Dattawadi, Nagpur.                           ..              Appellant


                               .. Versus ..


  Vaishali Kartik Dhawle,
  Aged about 35 years,
  Occupation-Housewife,
  Residence of 19, Jammudeep,
  Ayodhya Nagar, Nagpur.                       ..              Respondent



                      ..........
  Ms B.R. Hindustani, Advocate holding for Shri A.N. Ansari,
  Advocate for the appellant,
  Shri S.N. Thengari, Advocate for the respondent.
                       ..........


                               CORAM : A.S. CHANDURKAR AND
                                       N.B. SURYAWANSHI, JJ.

RESERVED ON : 05.02.2021.

PRONOUNCED ON : 23.02.2021.

2 FCA 76.15

JUDGMENT [PER : N.B. SURYAWANSHI, J.]

1. This appeal filed under Section 19 of the Family

Courts Act, 1984 by the appellant-husband takes exception to the

judgment of the learned Family Court No.4, Nagpur in Petition

No. A-732/2010, by which the petition filed by him for judicial

separation and in the alternative for a decree of divorce on the

ground of cruelty and desertion, was dismissed.

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

The husband approached the Family Court by filing

Petition No. A-732/2010 under Sections 10, 13 (1) (i-a) & (i-b)

of the Hindu Marriage Act, 1955 seeking judicial separation or in

the alternative decree of divorce on the ground of cruelty and

desertion contending therein that, the marriage between the

husband and the wife was solemnized at Nagpur on 8.5.2007.

Out of the wedlock, daughter Purva was born. According to the

husband, as per his horoscope, he was Mangalik, therefore, a

search was initiated for a girl who was having Mangalik

horoscope. As per the Hindu belief, a person having Mangalik

Yog has to marry with a person having Mangalik Yog so as to

3 FCA 76.15

avoid misfortune. It was contended that in the bio-data of the

wife given to them, her birth date was mentioned as 26.9.1993

and her qualifications were given as B.A. final. Her horoscope

depicted Mangalik Yog. After the marriage, the wife started

residing in the joint family of the husband. She always used to

remain silent and avoided conversation with him and the family

members. She used to finish her routine work hurriedly and

thereafter used to stay alone in the bedroom. She was talking to

her maternal family hours together in the bedroom. She used to

answer any query by saying Yes or No. She was avoiding to give

her educational certificates on the pretext that they were lost. It

was further averred that on 18.5.2009, the wife's father gave her

leaving certificate and other documents pertaining to her

educational qualification. The husband was shocked to know

that the actual date of birth of the wife was 27.9.1979 and

therefore she was Non-Mangalik. She had failed in BA-II. On

coming to know these facts, the husband became nervous. The

wife left matrimonial house in the midnight of 19-20.06.2009

without informing anyone. During her search, she was found

with her brother and brother-in-law, who were taking her to her

maternal home. Though the husband requested her to return to

4 FCA 76.15

the matrimonial house, she refused and reported the matter to

Wadi Police Station. On the same day, the husband along with

his family members went to bring the wife back, but her parents

refused to send her and also threatened to involve them in a

false case. According to the husband, the wife lodged false

complaint on that day. Whenever, the husband tried to bring

her back, threats were given to involve him in false cases. The

husband further averred that the wife used to give false age to

the Doctor so as to suppress her foul play. The wife and her

parents have cheated him and his family members by playing

fraud at the time of settlement of marriage. There was no

communication from the wife and her parents since she went her

maternal home on 20.6.2009. The husband and his family

members made various efforts and tried to give understanding to

the wife to come back but she did not pay any heed to the

requests of the husband. The husband also from time to time

tried to contact the wife on mobile phone and tried to convince

her to come back, but the wife did not respond to his request.

These acts of the wife caused mental and physical harassment to

the husband which according to him amounts to cruelty. He

therefore contended that the wife has deserted him with effect

5 FCA 76.15

from 20.06.2009 on account of false complaint lodged by the

wife and the husband from time to time was called at Tejaswani

Family Counseling Centre at Nagpur, where he was lastly

informed that the matter was not likely to be settled between

them. On 22.6.2010 the husband was called at Police Station,

Wadi where he was informed that the wife was involving him

and his family members in a false criminal case. The husband

and his family members were required to obtain anticipatory

bail. On 3.9.2010, the wife went to the house of the husband in

afternoon, when he was at his office and threatened his parents

that she will join the company of husband and then involve him

and his parents in a false case. Due to these threats, the husband

and his parents were always under apprehension that they might

be involved in a false case by the wife. Due to the continuous

torture by the wife, the life of the husband had become

miserable. He was not in a position to concentrate on his work

due to continuous harassment by the wife. The husband

therefore lost all the hopes that the smooth relations between

him and wife were possible. Hence, he filed the petition seeking

divorce on the ground of cruelty and desertion.

6 FCA 76.15

3. The wife appeared and denied all the allegations of

the husband in the petition by filing a written statement. She

admitted the marriage and the birth of daughter and the fact

that she was living with her parents from 20.6.2009. She denied

all other contentions. She averred that at the time of settlement

of marriage no horoscope was exchanged, so also no false

information was given by her and her parents to the husband in

respect of her date of birth and the qualification. She denied

that her bio-data was fabricated. According to her, the husband

and his family members were greedy and they used to taunt her

in filthy language for bringing meager dowry and about her

qualification. She had to face miserable life without any fault on

her part, due to the harassment of the respondent and his family

members. She tolerated all the harassment and taunting

contemplating that their behaviour would change. She

contended that on 18.6.2009, the husband and his mother

mercilessly beat her when she was in her fourth month of

pregnancy. On the next day, Kishor and Kiran Bambal visited her

house after attending the marriage at Datta Wadi and they found

injuries and marks of beating on her person. They informed the

same to the wife's parents. After they departed, she was again

7 FCA 76.15

beaten and was threatened with dire consequences. Since she

apprehended danger to her life, she was constrained to leave the

matrimonial home in the midnight of 19-20.6.2009. She took

shelter in the house of one Shri Gordey, who informed her

parents. Thereafter, her paternal relatives came and took her to

the maternal home. She lodged complaint of the said incident

with the Police Station, but the police did not take cognizance. It

was further averred that on 14.11.2009 she delivered a daughter

but nobody from her matrimonial home came to see the child

and no inquiries were made of her health. Though her parents

tried for reconciliation, their efforts were not fruitful. She

claimed that she was ready to cohabit with the husband. She

specifically denied giving threats to the husband. She therefore

prayed for dismissal of the petition filed by the husband.

4. The learned Family Court, after recording the

evidence, dismissed the petition filed by the husband. Hence,

the present appeal.

5. Heard the learned Advocate for the appellant and the

learned Advocate for the respondent. The learned Advocate for

8 FCA 76.15

the appellant vehemently submitted that by giving false

information that the wife was mangalik and by giving her

incorrect birth date, the wife and her family members have

cheated the husband and the same amounts to cruelty. He urged

that though the husband has led cogent and reliable evidence on

record to prove his case, the Family Court erred in dismissing his

petition. According to him, the reasons assigned by the Family

Court are contrary to the evidence on record and the impugned

decision of the Family Court is liable to be set aside and the

petition filed by the husband deserves to be allowed. In support

of his submissions, the learned Advocate relied upon the

following decisions :

               1)      V.K. Jain and others .vs. State of M.P. and
                       others. 2012 ILR (M.P.) 800. (The            decision
                       of Madhya Pradesh High Court).


               2)      Jiwan Kumari .vs. Paramjit Kumar, 2015 (1)
                       PLR 623. (The   decision      of     Punjab        and
                       Haryana High Court)

6. On the contrary, the learned Advocate for the

respondent supported the decision of the Family Court

9 FCA 76.15

contending that the husband has failed to prove cruelty or

desertion on the part of the wife. He submitted that the Family

Court has given proper reasonings and taking into consideration

the material on record, the Family Court was perfectly justified

in dismissing the petition filed by the husband. In support of his

submissions, he relied upon the following decisions :

                 1)       Raghunath .vs. Vijaya,
                          1972 Mh.L.J. 110.

                 2)       A Premchand .vs. V. Padmapriya,
                          AIR 1997 Madras 135.

7. We have heard the learned Advocate for the appellant

and the learned Advocate for the respondent and perused the

record. After hearing the rival submissions, following points

arise for determination :

1) Whether the appellant is entitled for decree of divorce.?

2) Whether the learned Family Court dismissing the petition of husband is legally correct.?

10 FCA 76.15

8. To determine the dispute between the parties, it is

necessary to consider the evidence on record. In support of his

claim the husband examined himself at Exh.22. He deposed in

terms of his pleadings in the petition. In cross-examination, he

admitted that before the marriage there were negotiations as

well as internal talks. His sister Manisha Tekade had inquired

about the education of wife and her family background. He

admitted that the wife's bio-data Exh.25 did not bear anybody's

signature. He admitted that anybody can prepare the bio-data.

He admitted that there was no hard and fast rule about the

difference in age of the bride and bridegroom and that a person

of less age may marry with a lady of a more age, according to

him, it happened rarely. He admitted that the prescription

Exh.29 is dated 7.6.2008 and it mentions the wife's age as 25

years and on prescription Exh.30 age of the wife was not

mentioned. He further admitted that Exh.29 showed the wife's

birth date as 25 years. On prescription Exh.31 dt. 20.8.2008, the

age of the wife was shown as 26 years. On prescription Exh.32

the age of the wife was shown as 25 years. The husband

admitted that he did not file his 'Janmapatrika' on record. He

also admitted that he did not take decisions in his life on the

11 FCA 76.15

basis of horoscope. He deposed that that no astrology can

predict whether the marriage of a couple would survive or not.

He was unable to tell the meaning of Mangalik. He also

admitted that he married with the wife as he liked her. He

admitted that he married with the wife after verifying all the

details. He also admitted that as per the say of his astrologer,

he married with the wife. He also admitted that his marriage

with the wife was performed with his and his family's consent

and it was a arranged marriage. Before the marriage, both the

parties had verified each others family background and houses.

He admitted to have joined government service in January-2009,

prior to that he was in private service and was earning salary of

Rs.5,500/-. He denied that as he joined government service, he

and his family members started ill-treating the wife. He also

denied that his mother was unhappy as the wife was from poor

family. He admitted that on 19.6.2009 the wife's sister Kiran

and her husband had been to his house. He further deposed that

he did not know that at that time his mother told them that the

wife was not at home and when Kiran went in the house to

attend nature's call, at that time, she found the wife locked in a

room by his mother and at that time Kiran saw the beating marks

12 FCA 76.15

on the body of the wife. He denied that on 19.6.2009 when his

mother told about the visit of Kiran and her husband, he beat the

wife and threatened to kill her if she tried to disclose the same to

anybody. Though he denied that due to the beating and

threatening, the wife left his house and took the shelter in the

house of neighbour Shri Gordey, he volunteered that in the

midnight the wife ran away from his house and went to the

house of Shri Gordey. He however admitted that at that time the

wife called her parents on phone and her parents and brother

came to the Gordey's house and took her to the maternal home.

According to him, it was preplanned. He admitted that the wife

filed case with Mahila Cell. Though he denied that after the

birth of daughter he did not came to see the child in the hospital,

he volunteered that the parents of the wife had prohibited him

from visiting the hospital. He denied rest of the suggestions. He

stated that his father had retired from defence. He deposed that

between 8.5.2007 to 20.6.2009 the wife lived with him. During

that period she used to keep quite and only if questions were

asked she used to give answer.

9. Jeevan Kuhike, a neighbour of the husband, was

13 FCA 76.15

examined as PW-2. He deposed that he was aware that the

husband was having Mangalik Yog and there was a search for a

suitable bride having Mangalik Yog for him. The bio-data

(Exh.25) of the wife was shown to him by the husband, wherein

her birth date was mentioned as 26.09.1983 and her

qualification was shown as B.A. Final. He has attended the

marriage of the husband and the wife. He was told by the

husband and his family members that the marriage was settled

only after matching the Kundali's of the husband and the wife.

According to him, the husband and his family members were

well cultured, educated and economically sound. He never

heard that the husband demanded dowry from the wife. He

deposed that after the marriage whenever he visited the

husband's house, the wife was never seen in the hall. On inquiry

about her, he was told that she was in her bedroom taking rest.

He was informed by the husband and his parents in the month of

May-2009 that they were cheated by the wife's family by giving

false information about her birth date, time of birth and her

qualification and that she was not a Mangalik. He also deposed

that in the midnight of 19-20.6.2009, the husband woke him up

and told him that wife was not seen anywhere in the house and

14 FCA 76.15

hence they started searching her. He knew that on 20.6.2009

family members of the husband went to bring the wife back from

her parents house, but returned without her, as the wife refused

to accompany them. He deposed that false case was lodged

against the husband and his family members. He had seen that

the wife was totally indifferent towards her in-laws and the

relation between the husband and the wife was always strained

due to the aloofness of the wife.

In the cross-examination, he admitted that he was

residing in the society of the husband and initially he was

residing near the house of the husband, however, thereafter, he

shifted on the backside of the husband's house. He admitted to

have cordial relations with the respondent. He claimed to have

attended the programme of the husband seeing the wife. He

also admitted that the marriage between the husband and the

wife was settled after verifying all the things in respect of the

parties. He admitted that their marriage was properly arranged.

Further admission was that he had not seen the dispute in

between husband and the wife during his acquaintance with the

family. He also admitted that he did not receive any information

15 FCA 76.15

of dispute between the husband and the wife from the parents of

the husband. He did not know what happened between the

husband and the wife on 18-19.6.2009. He further admitted

that in the initial two years of the marriage there was no dispute

between the husband and the wife in respect of age difference as

well as the wife being non-mangalik. He denied the other

suggestion that he was deposing at the instance of the husband.

10. Narayan Dhawle, the father of the husband, was

examined as PW-3. He supported the case of the husband in

respect of matching of the horoscope, search of the bride having

mangalik yog, false information having been given by the wife's

family etc., he therefore reiterated the contentions of the

husband in his deposition. In the cross-examination, he deposed

that he retired from defence in the year 2009. In their family,

there were no horoscope of his family members. He also

admitted that the horoscope of the husband and the wife were

not tallied. He admitted that he did not have any document to

show that his son was a mangalik. He also admitted that at the

time of the marriage the age of the husband was beyond the

marriageable age. He also admitted that the wife was related to

16 FCA 76.15

him. He admitted that after the marriage the wife cohabited

properly with the husband and the husband got service in

irrigation department after the marriage. He denied the

suggestion, after the husband got government job, as they

wanted to perform second marriage of the husband, they started

ill-treating the wife and therefore they were insisting that the

wife should abort. He admitted that on 19.6.2009 elder sister of

the wife and her husband came to their house, however, he

denied that they both saw beating marks on the person of the

wife and at that time they found that the wife was confined in

one room. He denied rest of the suggestions about the wife

leaving the house during the night between 19-20.6.2009 and

that she went to the house of neighbour Shri Gordey and in the

morning, along with her parents, she went to the maternal

home.

11. The wife filed affidavit in lieu of evidence reiterating

her contentions in the written statement. In the cross-

examination, she admitted that their marriage was an arranged

marriage and her mother-in-law was in distant relation with her

father. She further deposed that the husband's parents had seen

17 FCA 76.15

her before the marriage and, thereafter, the marriage was settled

and performed. According to her, at the time of first meeting

with the husband before marriage, she informed him her birth

date as 27.9.1979. She denied that leaving certificate (Exh.35)

was given to the husband before the marriage. She deposed that

her age mentioned in Exh. Nos.30, 31 and 32 was written by

Doctor. She admitted that her husband got service in the year

2009 and at that time, he asked for her leaving certificate for the

nomination in the government record. She denied that she

avoided to give the same. She admitted that leaving certificate

Exh.35 was given to the husband by her father on 18.6.2009.

She denied that there was difference in her age in Exh.25 and

35. According to her, in Exh.35, it was correctly mentioned that

she failed in BA-II. She denied the suggestion that as the

husband came to know that she was not a mangalik, therefore,

she had left his home in the night between 19-20.6.2009. He

further denied the suggestion that no incident took place on

18.6.2009 and that she was deposing false. She admitted that

she did not file any injury certificate in this case about beating.

She admitted to have filed case under the Protection of Women

from Domestic Violence Act, 2005 and in that she was receiving

18 FCA 76.15

maintenance at the rate of Rs.2,000/- per month. She had also

filed case under Section 9 of the Hindu Marriage Act, 1955. She

denied rest of the suggestions that she was telling lies and that

she used to give threats to the husband and his family members

and that she had taken gold ornaments and documents with her

at the time of leaving the house. She denied that thereafter the

husband tried to contact her.

12. Kishor Bambal, brother-in-law of the wife, was

examined as DW-2. He deposed that he and his wife participated

in the settlement of marriage of the husband and the wife. They

had stated the birth date of wife as 27.9.1979 to the husband's

parents. The preparation of horoscope and the matching of the

horoscope was done by the husband's parents. On 12.6.2009

when they went to attend the marriage at Datta Wadi, since

house of the husband was nearby, they went to meet the wife.

The atmosphere in the house of the husband was serious. The

husband's mother gave them tea. Thereafter, the wife came out,

she was crying, there were marks of beating on her face and legs

and her ear was swollen. His wife Kiran along with the wife

went inside the room. On being enquired about the beating

19 FCA 76.15

marks, parents of the husband started abusing at that time the

husband was not at home. After return, his wife Kiran told him

that there were also beating marks on the back of the wife. The

wife was again beaten by her in-laws and was threatened with

life, hence in the midnight of 19.6.2009 she took shelter in the

house of neighbour Shri Gordey and from there the wife called

her parents. Thereafter, on 20.6.2009, in the morning, he along

with his wife and other relatives and brother of the wife went to

bring the wife back, at that time, the wife's face was swollen due

to beating. The clothes worn by her were torn. They went to

Wadi Police Station and lodged the report. They referred the

matter to Tejaswini Family Counsellor, Ambazari Police Station.

In the cross-examination, he accepted that he was the

husband of the wife's sister and he participated in the process of

settlement of the marriage. He deposed that the husband's

parents had been to the house of the wife and they selected her,

thereafter, the further talks of marriage started. He admitted

that there was exchange of birth dates of the parties and,

thereafter, the marriage was performed. He also admitted that

the marriage was fixed as per Exh.25 but he claimed that he had

20 FCA 76.15

seen backside of Exh.25 for the first time on the date of

deposition. After her marriage, twice or thrice, he went to the

house of the wife, but no ill-treatment to the wife was informed

to him till 19.6.2009. He denied the suggestion that at the

instance of the wife he was deposing false.

13. The evidence on record reveals that the appellant has

claimed that he was cheated by the respondent and her family

members by telling that she was Mangalik and by giving her

incorrect birth date. If we consider the admissions given by the

husband in his cross-examination, there appears no substance in

his contentions about cheating and non-mangalik status of the

respondent. The appellant in his cross-examination has

categorically admitted that prior to the marriage there were

negotiations as well as internal talks and his sister had inquired

about the education of the respondent as well as her family

background. The appellant also admitted that he married the

respondent as he liked her. He also stated that he did not take

decision in his life on the basis of horoscope. The marriage was

performed after verifying the background, houses and all the

details of both the families. His father in his evidence has

21 FCA 76.15

admitted that the horoscopes of the appellant and the

respondent were not tallied and there were no horoscope of the

family members in their family. He admitted that the

respondent was related to him. He deposed that he did not have

any document to show that the appellant was a Mangalik. He

further admitted that at the time of marriage the age of the

appellant was beyond marriageable age. There are also

admissions on the part of PW-2, the neighbour, that the marriage

between the appellant and the respondent was settled after

verifying all the things in respect of the parties. All these

admissions belie the case of the appellant that there was

cheating on the part of the respondent and her parents at the

time of settlement of marriage.

14. In view of these admissions the allegations of the

husband that fraud was played by the wife and her family at the

time of marriage is also unacceptable and it is liable to be

rejected.

15. This Court in Bai Appibai .vs. Khimji Cooverji, AIR

1936 Bom. 138, held that :

                                        22                                    FCA 76.15

                "A     fraudulent      misrepresentation       or

concealment does not affect the validity of a marriage to which the parties freely consent with knowledge of its nature and with the clear and distinct intention of entering into the marriage, unless one of the spouses is induced to go through a form of marriage with the other by threats or duress or in a state of intoxication or in an erroneous belief as to the nature of the ceremony and without any real consent to the marriage."

16. In that case the plaintiff was a Naykin or a dancing girl

by profession and was mistress of several persons from time to

time. She married to the defendant. The defendant contended

that the marriage was null and void as the plaintiff made false

representation and his consent for marriage was obtained. The

representations of the plaintiff were that she was the widow of

one Ramchandra Kamat and that she was a Brahmin by caste

and she was a person of good character. The defendant also

alleged that the plaintiff suppressed from him the fact that she

was dancing girl by profession and she was mistress of more

than one person prior to her meeting the defendant. In these

facts also this Court held that such a fraudulent

misrepresentation or concealment did not affect the validity of

23 FCA 76.15

the marriage.

17. In Raghunath (supra), the learned Single Judge of this

Court, after considering the above quoted decision and the

decisions of various High Courts which were rendered prior to

the coming into the effect of the Hindu Marriage Act, 1955,

came to the conclusion that Section 12 (1)(c) of the said Act

does not speak of fraud in any general way and does not mean

any fraudulent misrepresentation or concealment.

18. Thus, according to us, the appellant has failed to make

out a case of fraud. Even if it is assumed that there was

misrepresentation in respect of the date of birth that does not

affect the matrimonial relations between the appellant and the

respondent, as we have already observed that the appellant has

failed to prove that he was Mangalik and he intended to marry

the girl having Mangalik Yog. Admittedly, the appellant got

government job after the marriage and prior to the marriage he

was in private job, so nothing turned on the respondent being

non-mangalik. The material on record further indicates that the

appellant and the respondent had normal married life from 2007

24 FCA 76.15

to 2009 and only when the appellant asked for educational

documents of the respondent and they were made available to

him, the appellant started ill-treating the respondent. Even

PW-3, father of appellant, has admitted that for initial two years

of the marriage, there was no dispute between the appellant and

the respondent in respect of age difference as well as the

respondent being non-mangalik. According to the respondent,

the ill-treatment started only after the appellant got government

job. The same appears to be probable from the material on

record.

19. The material brought on record by the appellant does

not make out any case of cruelty on the part of the respondent.

The evidence laid by the husband does not spell out cruelty

caused by the respondent to him. The appellant therefore has

failed to prove cruelty on the part of the respondent. After

careful scrutiny of the evidence on record, we are of the

considered view that the appellant has failed to prove cruelty on

the part of the respondent.

20. As far as the aspect of desertion is concerned,

25 FCA 76.15

admittedly the respondent was living with her parents since

20.6.2009. There are admissions on record of the appellant and

his father that on 19.5.2009, respondent's sister Kiran and her

husband had been to their house and they met the respondent.

As per the evidence led by the respondent she was beaten and

her sister and her husband saw the marks of beating on her

person. After they left, she was again beaten and threatened

with life. Apprehending danger to her life, she had to take

shelter in the house of neighbour Shri Gordey. From there, she

called her parents and her brother, sister Kiran, her husband and

others took her from the house of Shri Gordey to her parents

house on 20.6.2009 and on that day, they also lodged Police

complaint. This evidence appears to be probable in view of the

admissions given by the appellant and his father PW-3 that

respondent's sister Kiran and her husband visited their house on

19.6.2007 and the respondent left the matrimonial home in the

night between 19-20.6.2009. Even his father PW-3 has admitted

the visit of Kiran and DW-2 to their house on 19.6.2007. There

is no material on record to show that the appellant tried to bring

the respondent back for cohabitation. Except his bare words, the

appellant has not laid any evidence in support of the said

26 FCA 76.15

contention. We do not find substance in the contentions of the

appellant that he tried to bring the respondent back for

cohabitation, but he was threatened. We have reason to believe

that since the appellant attributed cheating and fraud to the

respondent and her parents, it is not possible to believe that he

tried to bring the respondent back for cohabitation. The

appellant has not even sent a notice calling upon the respondent

to join for cohabitation. In these circumstances, the appellant

cannot take advantage of his own wrong to claim that

respondent has deserted him. From the material placed on

record, the contention of the respondent about ill-treatment

suffered by her and apprehending danger to her life, she left the

matrimonial home, is liable to be accepted.

21. The learned Advocate for the appellant has relied

upon the decision in V.K. Jain and others (supra) wherein the

learned Single Judge of Madhya Pradesh High Court, in the facts

of that case, held that at the time of marriage incorrect age of

wife was told to the husband's side and after marriage when the

documents were obtained by the respondent, it was revealed that

at the time of marriage the wife's age was 38 years, whereas

27 FCA 76.15

husband's age was only 26 years and the fact of actual age was

concealed by the wife. Since wife was 11 years elder than the

respondent, the husband, within two months of marriage, filed

the proceeding for declaration that the marriage was a nullity,

the Family Court allowed the petition of the husband and the

High Court confirmed the same. In the proceeding filed by the

husband and his relatives for quashing of the FIR filed under

Section 498-A of the IPC by the wife narrated the facts of that

case, as the High Court quashed the 498-A proceeding in respect

of relatives, however, maintained the same against the husband.

The authority is distinguishable on facts and therefore is

inapplicable to the appellant's case.

22. In Jiwan Kumari (supra), the husband had filed

petition for divorce on the ground of cruelty, as the wife was of

arrogant attitude and indifferent behaviour on the part of the

wife. The husband was not in a position to live with the wife

because of mental agony, torture and distress. The wife had

shown unwillingness to disclose her age. The wife had

withdrawn herself from the husband. In those facts the Family

Court granted decree of divorce on the ground of cruelty, which

28 FCA 76.15

was confirmed by the High Court. In the case in hand the

appellant has failed to prove cruelty, therefore, this decision

would not help the appellant.

23. The learned Family Court has properly appreciated the

evidence placed before it and has recorded correct findings. The

learned Family Court has rightly came to the conclusion that the

appellant has failed to prove his case for cruelty and desertion

and the appellant failed to prove that the respondent has

persistently or repeatedly treated him with such cruelty as to

cause reasonable apprehension in his mind that it will be

harmful or injurious for him to live with her. We are of the

opinion that the learned Family Court has properly appreciated

the evidence on record and has rightly dismissed the petition

filed by the husband.

24. We therefore answer the points holding that the

appellant failed to prove cruelty and desertion on the part of the

respondent-wife and the learned Family Court was justified in

dismissing the petition filed by the appellant.

29 FCA 76.15

25. For the aforestated reasons, we find no merit in the

appeal filed by the appellant. The appellant has failed to make

out any case to interfere with the judgment of the learned Family

Court, the appeal is without merit and is liable to be dismissed.

Hence, the following order :

ORDER

Family Court Appeal No.76/2015 is hereby dismissed.

The judgment of the learned Family Court in Petition No.A-

732/2010 is hereby confirmed. The parties to bear their own

costs.

(N.B. Suryawanshi, J.) (A.S. Chandurkar, J.)

Gulande