Rupali W/O Rajendra Jumale vs Rajendra S/O Babarao Jumale
2021 Latest Caselaw 1854 Bom

FCA 25-16                                     1                      Judgment

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR.
                  FAMILY COURT APPEAL No. 25/2016
Rupali Rajendra Jumale,
Aged about 40 years, Occu: Nil,
R/o Plot No.2A, Mire Layout, Near
Bhande Plot, Dist. Nagpur.                                         APPELLANT

                                .....VERSUS.....
Rajendra Babarao Jumale,
Aged about 40 years, Occu: Business,
R/o Plot No.2A, Mire Layout,
Near Bhande Plot, Dist. Nagpur.                                   RESPONDENT


                 Mrs. Amruta Ghonge, counsel for the appellant.
                  Shri S.M. Nafde, counsel for the respondent.


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

DATE : 28TH JANUARY, 2021.

ORAL JUDGMENT (PER : A.S. CHANDURKAR, J.)

The appellant is the wife of the respondent who is aggrieved

by the judgment dated 21.12.2013 in Petition No.A-883/2012. By that

judgment the marriage between the parties has been dissolved by a

decree of divorce.

2. The appellant married the respondent on 24.06.2009. It is

her case that within a short period, the respondent started ill-treating her

and subjected her to physical abuse. There were quarrels between the

parties and it became impossible for the appellant to reside with the

respondent. On that premise, the appellant filed proceedings under FCA 25-16 2 Judgment

Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955 (for short, 'the

said Act') on 31.08.2012 praying that the marriage be dissolved by

passing a decree of divorce.

3. The respondent filed his written statement at Exhibit 14 and

denied the allegations made by the appellant. The prayer as made for

grant of divorce was also opposed.

4. The appellant filed her affidavit in lieu of evidence at Exhibit

18. She reiterated the stand taken in the divorce petition. The

respondent cross-examined the appellant but the suggestions given to her

were denied. The respondent filed pursis at Exhibit 21 on 06.09.2013 in

which it was stated as under:-

"That, the petitioner has filed present petition u/s. 13(1)(1A)(1B) of the Hindu Marriage Act. The Respondent has appeared and filed written statement and denied allegation. The Respondent is admitted prayer clause, for divorce and other prayer is denied. The written statement is filed on solemn affirmation by the Respondent.

The petitioner has examined herself and cross-examined by the respondent. The respondent does not want evidence, as he has admitted prayer for divorce."

FCA 25-16 3 Judgment

5. The learned Judge of the Family Court held that the

appellant had led evidence to indicate instances of cruelty which had

gone unchallenged. Filing of pursis at Exhibit 21 by the respondent

was accepted. On that count, the marriage between the parties was

dissolved by passing a decree of divorce on the ground of cruelty.

The prayer made for granting an amount of Rupees Ten Lakhs

towards marriage and litigation expenses came to be rejected.

The appellant being aggrieved by that part of the order refusing

to grant marriage and litigation expenses has filed the present

appeal.

6. The learned counsel for the appellant submitted that the

learned Judge of the Family Court was not justified in refusing to grant

the relief with regard to marriage and litigation expenses. The reasons

assigned in the impugned judgment by relying upon Section 13 of the

said Act were not in accordance with law. The learned counsel referred

to the document at Exhibit 24 in which the appellant had made a prayer

for grant of permanent alimony and return of gold ornaments. Even this

prayer was not considered by the learned Judge of the Family Court. It

was thus submitted that the relief denied by the Family Court ought to be

granted in the appeal.

FCA 25-16 4 Judgment

7. The learned counsel for the respondent on the other hand

submitted that the document at Exhibit 24 was insufficient to grant any

relief to the appellant. No details whatsoever were given therein and no

evidence in support of that prayer for grant of marriage and litigation

expenses was brought on record. The said relief was rightly refused by

the Family Court. It was then submitted that the pursis at Exhibit 21 filed

by the respondent has been misconstrued by the Family Court. The

respondent had consented for dissolution of marriage and not for granting

a decree of divorce on the ground of cruelty. It was therefore submitted

that to that extent liberty be granted to the respondent to challenge the

findings regarding the acts of cruelty.

8. In the light of aforesaid submissions, the following point

arises for adjudication:-

Whether the judgment of the Family Court deserves to be

interfered with?

9. We have heard the learned counsel for the parties at length

and we have perused the records of the case. It is not in dispute that the

appellant was seeking divorce on the ground of cruelty. The instances of

cruelty were pleaded and then evidence was led by her in the form of her

affidavit at Exhibit 18. The respondent in his written statement denied FCA 25-16 5 Judgment

the said allegations but thereafter filed a pursis at Exhibit 21 admitting

the prayer clause for grant of divorce. Perusal of this pursis indicates that

it is unconditional insofar as the prayer for grant of divorce is concerned.

The prayer for grant of monetary relief has been denied. It was further

stated that since the respondent admitted the prayer for divorce, he did

not want to lead evidence. The learned Judge of the Family Court was

therefore justified in accepting the said pursis submitted by the

respondent. If the respondent was aggrieved by the decree for divorce on

the ground of cruelty, it was open for him to challenge the same but the

same has not been done. Neither any appeal nor any cross-objections

have been filed for challenging the decree on that count. In that view of

the matter, no liberty can be granted to the respondent to independently

challenge the finding recorded that the decree for divorce on the ground

of cruelty was bad in law.

10. Insofar as the prayer for grant of marriage and litigation

expenses is concerned the appellant has sought to rely upon Exhibit 24 in

that regard. In that document which is written by the appellant herself,

prayer for payment of alimony and return of gold ornaments was made.

Under Section 25 of the said Act, the Court has jurisdiction to consider

the prayer for grant of permanent alimony. We find that though such

application was moved at Exhibit 24, the Family Court has not passed any FCA 25-16 6 Judgment

order thereon. The interests of justice would be served by permitting the

appellant to make a prayer for grant of permanent alimony and

maintenance under Section 25 of the said Act before the Family Court.

This would give an opportunity to the respondent to contest such prayer

and lead evidence if necessary. The prayer for marriage and litigation

expenses can also form part of such application if made by the appellant.

To that extent, the impugned judgment is liable to be modified. The

point as framed is answered accordingly.

11. Hence, for aforesaid reasons, the decree for divorce passed in

Petition A-883/2012 stands confirmed. The appellant is at liberty to

initiate proceedings under Section 25 of the said Act for grant of

permanent alimony and maintenance. If such proceedings are initiated,

the same shall be decided in accordance with law on their own merits

without being influenced by any observations in this order. The Family

Court Appeal is partly allowed with no order as to costs.

The Record & Proceedings be sent to the Family Court

forthwith.

         (N.B. SURYAWANSHI, J.)            (A.S. CHANDURKAR, J.)


APTE

Rohit             Digitally signed by
                  Rohit Apte

Apte              Date: 2021.01.30
                  16:50:29 +0530