Govind Vasantrao Bagade vs Poonam Govind Bagade
2023 Latest Caselaw 1042 Bom

                                    1               FCA-21-2021 & Anr.-J..

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   BENCH AT AURANGABAD

              FAMILY COURT APPEAL NO. 21 OF 2021

Govind s/o Vasantrao Bagade,
Age : 35 years, Occu: Business,
R/o Samarthnagar, Near More Hospital,
Bhum, Tq. Bhum, Dist. Osmanabad                          ...Appellant
                                                        (Orig. Respondent)
              Versus

Poonam w/o Govind Bagade,
Thru. (c/o.) Gowardhan Ramchandra Dkkhone
Age : 33 years, Occu. Household,
R/o 17/130, Pipoeline Road,
HUDCO, Savedi, Ahmednagar,
Dist. Ahmednagar.                                        ...Respondent
                                                         (Orig. Petitioner)
Mr D.R. Jayabhar, Advocate for Applicant
Mr R.S. Kasar, Advocate for Respondent/Sole

                             WITH
              FAMILY COURT APPEAL (ST.) NO. 34077 OF 2022

Govind s/o Vasantrao Bagade,
Age : 35 years, Occu: Business,
R/o Samarthnagar, Near More Hospital,
Bhum, Tq. Bhum, Dist. Osmanabad                          ...Appellant
                                                        (Orig. Petitioner)
              Versus

Poonam w/o Govind Bagade,
Age : 33 years, Occu. Household,
R/o 17/130, Pipeline Road,
HUDCO, Savedi, Ahmednagar,
Dist. Ahmednagar.                                        ...Respondent
                                                         (Orig. Respondent)
Mr D.R. Jayabhar, Advocate for Appellant
Mr R.S. Kasar, Advocate for Respondent/Sole


                               CORAM :   MANGESH S. PATIL AND
                                         S.G. CHAPALGAONKAR, JJ.

                               RESERVED ON :     07-01-2023
                               PRONOUNCED ON :   01-02-2023





                                  2                  FCA-21-2021 & Anr.-J..

 JUDGMENT : ( PER S.G. CHAPALGAONKAR, J. )

1. The present appeals are filed under Section 19 of the Family

Courts Act thereby taking exception to the common Judgment and

decrees dated 30-03-2021 passed by family court Ahmednagar in Petition

No. A-120 / 2018 and Petition No. A-22 / 2019. The appellant is the

husband in both the appeals. (Hereafter husband is referred to as "the

appellant" and the wife is referred to as "the respondent" for the sake of

brevity).

2. The respondent / wife filed Petition No. A-120 / 2018 seeking

decree of divorce u/s 13 (1) (i-a) & (i-b) of Hindu Marriage Act, 1955

whereas Appellant / Husband filed Petition No. A-22 / 2019 for grant of

decree of restitution of conjugal rights u/s 9 of Hindu Marriage Act, 1955.

The Family Court allowed petition granted the decree of divorce on both

grounds of cruelty as well as desertion. However, petition for restitution of

conjugal rights is dismissed.

3. The respondent pleaded in her petition that, marriage was

solemnized on 19-02-2016 as per the Hindu rites and rituals. After

marriage, the respondent started co-habitation with the appellant.

However, the appellant and his family members began ill-treating her. She

was insulted for the reason of not making proper arrangement in the

marriage. The appellant doubted her character, tortured her mentally and

physically. The family members of the appellant used to abuse and assault

her.

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4. The appellant had a job at Pune. He raised the demand of

Rs.3,00,000/- from respondent under pretext of purchasing house at Pune.

However, due to non-fulfillment of the demand, appellant abused,

assaulted and gave insulting treatment to her. The respondent was driven

out of matrimonial house within 15 days of the marriage. Since then, she

has been residing at her maternal house.

5. The attempts were made to bring reconciliation by parents and

relatives of respondent. However, all these attempts turned futile because

of demand of Rs.3,00,000/- raised by appellant. It is also the case of the

respondent that on 24-07-2016, the appellant along with two strangers had

been to her maternal house and raised the demand of Rs. 3,00,000/-. He

assaulted the respondent and hurled abusive language towards father and

brother of the respondent.

6. It is further case of the respondent that she made a written

complaint to the Police Station at Ahmednagar on 30-07-2016 against the

appellant. Further Criminal Misc. Application No. 764/2016 was filed by

her under the provisions of the Domestic Violence Act, 2005 (hereinafter

referred to as "the D.V. Act") against him. The FIR was also lodged by her

father with Police Station. However, all these proceedings were withdrawn

on a compromise.

7. The appellant filed his written statement and denied adverse

allegations. He stated that the respondent has deserted him without

justifiable cause. The respondent is a BAMS doctor and better qualified

than the him. She was never interested in co-habiting with him. He states

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that she never resided with him. Her father was against their marriage and

he would threaten the appellant of committing suicide if he attempted to

take her with him. It is also the case of the appellant that he made

attempts of conciliation and also issued notice for restitution of conjugal

rights to her through an advocate. He submitted that he was always ready

and willing to co-habit with the respondent.

8. The appellant in his petition filed under section 9 of the Hindu

Marriage Act for restitution of conjugal rights against the respondent stated

that the respondent refused to co-habitation without reasonable excuse. In

spite of his attempts to bring her for co-habitation, she refused. He stated

that while respondent was prosecuting her B.A.M.S. course in Ayurveda

College, both of them had decided to marry. After completion of B.A.M.S.

course, they performed the marriage. Her family members were not

present at the marriage. It is also stated that the false complaint was filed

against him by father of the respondent similarly on his insistence Criminal

Misc Application No. 764/2016 was filed by her under the provisions of

D.V. Act. However, the proceedings were withdrawn by respondent after

amicable settlement. She had agreed to resume co-habitation with the

appellant, however, she failed to do so.

9. The Family Court at Ahmednagar had clubbed both the

petitions for hearing and disposal vide office order dated 25-06-2019.

Common evidence was recorded in both the petitions. The issues were

framed below Exh.19 and Exh. 85 in respective petitions. The evidence of

parties was recorded and after hearing the parties, the Family Court

refused restitution and granted divorce.

5 FCA-21-2021 & Anr.-J..

10. The learned advocate for the appellant would submit that the

Family Court has failed to appreciate evidence on record in its proper

perspective. The respondent has failed to make out the case of cruelty or

desertion in terms of section 13 (1-a) and (1-b) of Hindu Marriage Act,

1955. He would submit that the respondent never co-habited with the

appellant. He would submit that on 19-02-2016, the marriage was

performed at Pune. Family members of the respondent were absent, since

they were against such marriage. The allegations regarding the ill-

treatment are false and imaginary. The learned advocate for the appellant

would also submit that the allegation made by the respondent regarding

demand of Rs.3,00,000/- for purchasing flat at Pune is absolutely false.

The appellant was never in service at Pune. He would submit that the

respondent being better qualified than the appellant, she refused to co-

habit with him. She has left the company of the appellant without any

reason.

11. The learned counsel for the appellant would further submit that

the respondent and her father had filed false complaints against the

appellant at Police Station, Ahmednagar. Similarly, the respondent had

instituted the proceeding vide Criminal Misc. Application No. 764/2016

under D.V. Act at Ahmednagar. All those proceedings are withdrawn by

respondent after amicable settlement. Even after settlement of disputes,

the respondent did not resume company of the appellant. He would submit

that there is no material to make out a case of cruelty. He would submit

that appellant has made sincere efforts to bring back the respondent for

6 FCA-21-2021 & Anr.-J..

co-habitation. As such, the decree for restitution for conjugal rights ought

to have been passed. The learned advocate for the appellant would

submit that in the light of section 23 of the Hindu Marriage Act, 1955, the

respondent cannot claim benefit of her own wrong.

12. The learned advocate for the appellant would further submit

that no material is brought on record to make out ground of desertion as

contemplated under section 13 (1) (i-b) against him. Since continuous

desertion for the period of not less than two years immediately preceding

the filing of the petition for dissolution of marriage is not proved, the

decree could not have been passed on the ground of desertion. The

learned advocate for the appellant would submit that the decree passed in

Petition No. A/120/2018 is liable to be quashed and set aside and Petition

No. A-22/2019 filed by appellant seeking decree of restitution of conjugal

right ought to be allowed.

13. On the other hand, the learned advocate for the respondent

justified the Judgment and decree in both the matters. He would submit

that the respondent has established cruelty as well as desertion on the

part of the appellant by leading cogent and reliable evidence. The Family

Court has passed the well-reasoned order. He would further submit that

Petition No. A-22/2019 was filed by appellant as a counter-blast to the

divorce petition. It is an attempt to create false evidence to defend the

action of respondent.

14. We have heard the learned advocates for the parties and

perused the common Judgment passed by the Family Court. We have

7 FCA-21-2021 & Anr.-J..

also considered the oral and documentary evidence. Before we delve into

the factual aspect of the matter, it is necessary to find out meaning of

"cruelty" in terms of section 13 (1) (i-a). The Supreme Court of India in the

matter of Shobha Rani versus Madhukar Reddy reported in (1988)1

SCC 105 while explaining the term cruelty observed thus -

4. Section 13(1)(i-a) uses the words "treated the petitioner with cruelty". The word "cruelty" has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment in the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse.

15. Keeping in mind these guidelines, the facts of the case need to

be appreciated. It is not in dispute that the appellant and respondent have

solemnized the marriage at Pune on 19-02-2016 as per Hindu rites and

rituals. It is admitted by the respondent that her parents were not present

at the time of marriage. The respondent took leave for marriage during the

period from 18-02-2016 to 24-02-2016 while she was doing her internship.

She resumed her internship after end of the leave. It is therefore, evident

that the respondent continued her stay at the hostel even after the

marriage.

8 FCA-21-2021 & Anr.-J..

16. It is also an admitted fact that within six months of marriage the

respondent had filed the proceedings under D.V. Act vide Criminal Misc.

Application No. 764/2016 before JMFC at Ahmednagar. Her father had

filed the NC against the appellant. However, both these proceedings were

withdrawn after amicable settlement. Though the respondent claims that

she resumed co-habitation after the compromise, she admits during the

cross-examination that she never resumed the company of appellant even

after withdrawal of the case.

17. The Family Court, after scrutiny of the evidence, recorded

specific findings in para nos. 10 to 13 of Judgment that the respondent has

failed to prove her allegations regarding ill-treatment by in-laws on account

of alleged improper arrangement in the marriage, or mental and physical

cruelty by the husband doubting her character. The categorical finding is

recorded by Family Court that the respondent could not prove her case

regarding alleged demand of Rs.3,00,000/- by in-laws for purchase of a

flat at Pune. Even allegations made by the respondent that she was driven

out of house after 15 days of her marriage is discarded by the family court.

Though Family Court recorded the aforesaid findings, it accepted the case

of the respondent that she was subjected to cruelty. Such conclusion is

not supported by the cogent material that would attract the cruelty. It

appears that the Family Court has made the decision on the point of

cruelty relying upon the fact that a complaint was filed by the respondent

with Police Station against the appellant and the fact that she had

instituted the proceeding against the appellant invoking provisions of D.V.

Act.

9 FCA-21-2021 & Anr.-J..

18. Perusal of the contents of the Criminal Misc. Application at Exh.

61 filed under D.V. Act would show that the allegations are replica of the

contents made out in the present petition. Similarly, Exh. 63 is the copy

NCR. 1572/2016 dated 1-12-2016 filed by father of the respondent. We

have considered the aforesaid evidence and find that there is nothing to

make out the case of cruelty. The copy of written application dated 30-07-

16 addressed by respondent to Police Station Officer Ahmednagar is

placed on record along with list of documents at Exh. 38. However its

contents are not proved by the respondent. The document is not exhibited

or admitted in evidence. It is also evident that the proceeding under D.V.

Act as well as the complaint given to Police Station has been withdrawn by

the appellant.

19. The appellant has made a reference to incident dated

24-07-2016 in pleading as well as oral evidence. She states that her in-

laws along with two unknown persons had arrived at maternal home and

threatened her with demand of Rs. 3,00,000. It also refers to the abuses

hurled by the appellant's parents towards parents and brother of the

respondent. However, in her cross-examination respondent admits that

she has not filed any complaint regarding incident dated 24-07-2016.

There is no supporting evidence to prove the alleged incident dated 24-07-

2017. The evidence of the respondent appears inconsistent on material

particulars. The respondent has withdrawn her application filed under D.V

Act as well as the complaint dated 30-07-2016. As such there is no reason

to bank upon the contents of those document while deciding the issue of

10 FCA-21-2021 & Anr.-J..

cruelty. It is admitted by respondent during her cross-examination that

even after compromise she did not resume the company of the appellant

though she has stated so in her petition. The overall scrutiny of the

evidence would show that the appellant and respondent never co-habited

after the marriage.

20. At this stage, the reference can be made to the provisions of

Section 23 of the Hindu Marriage Act. The relevant part of section 23

states as under :-

23 Decree in proceedings .--

(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that--

(a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub-clause

(a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

(b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty,....

21. Section 23 is an impediment to grant divorce on the ground of

cruelty. If the respondent has condoned the cruelty in any manner or if the

respondent on her own accord withdrew the proceedings filed under the

D.V. Act so also the complaint lodged with the Police Station, she cannot

use that material to prove the cruelty against the appellant. Even

otherwise, the allegations which were levelled against the appellant in the

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complaint filed before the Police or proceedings under the D.V. Act, do not

inspire confidence. The allegations contained in those documents are not

proved by leading independent or reliable evidence. No specific instances

are brought on record to substantiate allegations of cruelty on the part of

the appellant. In this background the case of the respondent cannot be

accepted for grant of decree under section 13 (1) (i-a). Therefore, the

findings recorded by the Family Court against issue No. 3 is liable to be

quashed and set aside.

22. The Family Court has accepted the case of the respondent for

grant of decree in terms of Section 13 (1) (i-b) on the ground of desertion

without reasonable cause for more than two years. It is a matter of record

that the respondent had never cohabited with appellant after the marriage.

The respondent continued her education and stayed at the hostel

immediately after the marriage and thereafter she continued to reside

along with her parents. The evidence on record would show that the

appellant has failed to take steps to bring back her for co-habitation. It is

the matter of record that on 18-02-2016 a love marriage was performed at

Pune in absence of family members. The appellant candidly admits that

after re-conciliation in the year 2016 till February 2018 he made no

attempt to bring respondent for co-habitation. It is therefore evident that

from the date of marriage i.e. 18-02-2016, the appellant has not made any

attempts to establish the matrimonial relationship.

23. The appellant has failed to bring on record evidence of

independent witness to show that he was interested in restoration of

12 FCA-21-2021 & Anr.-J..

matrimonial relations with the respondent from the date of marriage. Even

in his evidence before Family court he has not given particulars of any

such attempt. For reasons best known to him he deserted the respondent

continuously for more than two years. It appears that the appellant has

instituted proceeding for restitution of conjugal rights only after getting

knowledge of the proceeding instituted by the respondent seeking divorce.

24. Another important aspect of the matter is that under section 13

(1) (i-b) the decree can be granted only when there is continuous desertion

for the period not less than two years immediately preceding the

presentation of the petition. In present case though, respondent herself

stated that on 30-09-2016 the couple arrived at the compromise in the

proceeding under D.V. Act and she resumed the company of the husband,

she states during her evidence before Court that she never resumed the

company of the appellant even after the so-called compromise. The

marriage took place on 19-02-2016. The petition seeking the divorce is

filed on 08-03-2018. As such there is continuous desertion of the

respondent for the period of more than two years preceding the

presentation of petition without justiciable reason. Therefore, the finding

recorded by the Family court against issue no. 2 is just and proper. The

result of the aforesaid discussion leads us to the conclusion that the

respondent is entitle for decree of divorce in terms of section 13 (1) (i-b).

25. The Family Court Appeal (St.) No. 34077/2022 has been filed

by the appellant / husband thereby raising challenge to the judgment and

decree in PA No. 22/2019 by which the claim under section 9 of the Hindu

13 FCA-21-2021 & Anr.-J..

Marriage Act, 1955 has been rejected. It is contended by appellant that

the decree for restitution of conjugal right ought to have been passed in his

favour, as the respondent has withdrawn from the society of the husband

without reasonable excuse. However, in light of findings recorded in

foregoing paragraphs while dealing with the challenge raised by appellant

to the decree of divorce in terms of section 13 (1) (i-b), the conclusion is

recorded that the appellant has never taken positive steps to establish

matrimonial relations with the respondent right from the date of marriage. It

can be observed that present proceeding is instituted by appellant

resorting to the provisions of section 9 of Hindu Marriage Act, 1955, only

after getting knowledge of institution of the proceeding for divorce.

Apparently, such proceeding is instituted by appellant with intention to

create evidence to defend the claim of divorce. The appellant cannot

assert that the respondent is guilty of withdrawal from his society without

reasonable excuse, particularly when he failed to establish existence of

matrimonial relations. It doesn't lie in the mouth of appellant to say that

respondent wife has withdrawn from his society.

26. The evidence on record indicates that the respondent is

residing at her maternal home after completing her education and the

appellant has never attempted to establish matrimonial relationship since

the date of marriage. The stray meetings somewhere in hotels or

occasional journey taken together would not constitute co-habitation. The

term co-habitation brings within its sweep the sincere attempts of the

husband to accept her as life partner and the same treatment is expected

from the wife towards husband. In present case, the marriage between the

14 FCA-21-2021 & Anr.-J..

appellant and respondent appears to be result of infatuation during the

college days without understanding the duties owing to the marriage. It is

expected that both the spouses will make sincere efforts for co-habitation.

The husband should behave as a dutiful husband and wife should behave

as a devoted wife. In present case there is complete failure of observance

of such duties on the part of the appellant. Taking overall survey of the

pleadings, evidence and material before us it leads us to conclude that

the appellant has failed to establish the claim for restitution of conjugal

rights. Hence no interference is called for in the judgment and decree

passed by Family Court thereby dismissing the P.A.No.A-22/2019.

27. Upshot of the aforesaid discussion, though we have set aside

the finding of Family Court against issue No.1 regarding cruelty by

husband in terms of Section 13 (1) (i-a), we affirm finding on point of

desertion by husband and consequential decree of divorce in terms of

Section 13 (1) (i-b), hence the final result remains unchanged.

28. In the result, both appeals fail. The Family Court Appeal No.

21/2021 as well as Family Court Appeal (ST.) No. 34077/2022 are

dismissed with cost.

 [ S.G. CHAPALGAONKAR, J. ]                    [ MANGESH S. PATIL, J. ]


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