Bombay High Court
Santosh Subrao Ghodake vs Sou. Sadhana Santosh Ghodake on 12 January, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:2229
18-SA-70-2016.doc
Harish
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.70 OF 2016
Santosh Subrao Ghodake ...Appellants/
Applicants
Versus
Sadhana Santosh Ghodake ...Respondents
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Mr. Kedar P. Lad for the Appellant.
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CORAM : SHARMILA U. DESHMUKH, J.
DATE : JANUARY 12, 2024
P. C. :
1. The Second Appeal has been preferred being dissatisfied with the
Judgment dated 29 May, 2015 passed by the District Judge, Kolhapur in
Regular Civil Appeal No. 93/2009 dismissing the Appeal and confirming
the Judgment and Decree of the Joint Civil Judge, Senior Division in
Hindu Marriage Act, Petition No. 236 of 2003 and dismissing the
Application seeking dissolution of the marriage under Section 13 and
Section 12 (i)(c) of the Hindu Marriage Act, 1955.
2. The facts of the case are that the Petition No. 236 of 2003 was filed
by the Appellant seeking divorce. It was pleaded that on 16 th May, 1991
the parties were married according to Hindu Vedic Rites and
subsequently son was born on 28 th May, 1992. As regards the cruelty, it is
18-SA-70-2016.doc
pleaded that the Respondent used to insult the mother and sister of the
Petitioner and during the pregnancy, the Respondent did not take the
medicine by saying that she did not want the child and she will not
maintain the child. Even after birth of child the Respondent failed to take
proper care of the child. Certain incidents of cruelty taken place in May
and June, 2002 have been cited by the Appellant to show that the
Respondent had treated his mother and sister with cruelty. The Trial court
after appreciation the evidence on record, dismissed the Petition as against
which the Appeal filed was dismissed by the Appellate Court.
3. Heard Mr. Lad, learned counsel for the Appellant.
4. Learned counsel for the Appellant submits that the Petitioner did
not disclose her correct date of birth, which according to the Appellant is
December, 1962, at the time of the engagement and thus his consent was
obtained by fraud by showing the date of birth on 1 st November, 1965.
He submits that if the real date of birth would have been known to the
appellant he would not have agreed for the marriage and as such, his
consent was obtained by fraud. As regards the acts of cruelty, he would
submit that the Respondent has treated his mother and sister with cruelty
and also submits that the Respondent has not taken care of the child
which caused him mental agony. The substantial question of law
according to him, is the perversity in the findings of the Trial Court and
18-SA-70-2016.doc
the Appellate Court on aspect of fraud.
5. Considered the submissions and perused the record.
6. The Trial Court after appreciating all evidence, dismissed the
Petition and the Appellate Court re-appreciation of evidence has
confirmed the finding of the Trial court. It is well settled that in Second
Appeal unless there is a perversity in findings demonstrated, no
substantial question of law would arise and there cannot be any re-
appreciation of question of fact.
7. In the present case, as far as the annulment of marriage which is
sought on the ground of Section 12 (i)(c) of the Hindu Marriage Act is
concerned, it is necessary for the Appellant to plead and prove the
suppression of fact of the correct date of birth and also that his consent
had been obtained by fraud and secondly, that the fact which is
suppressed his material fact. It is also necessary for him to plead the date
when the said fact came to his knowledge and the fraud was discovered as
the petition is required to be filed within a period of one year from the
disclosure of the fraud.
8. In the present case, on the basis of evidence, the Trial Court has
come to a finding that the Appellant has not established that his consent
was obtained by fraud and that petition has been filed within a period of
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one year from disclosure of fraud. The finding of the Trial Court has been
upheld by the Appellate Court. The marriage has been performed in the
year 1991 and after period of almost 12 years the Petition was filed
seeking annulment of marriage under Section 12(i)(c) of the Hindu
Marriage Act. When the material ingredients were not pleaded and
established, no decree of annulment of marriage can be passed. As regards
the incidents of cruelty, the Appellate Court has rightly considered that
the incidents are not proved as the Appellant has failed to examined his
mother and sister. The Appellate Court has considered the evidence of the
witnesses and have found them to be interested witnesses. The First
Appellate Court has therefore on the basis of evidence rightly held that
the incidents which are cited are general wear and tear of marital life and
cannot be said to be a nature of cruelty of the Appellant to file a decree of
divorce.
9. Form the concurrent findings of the Trial Court and the Appellate
Court, I am of the view that the evidence has been rightly appreciated by
the Appellate Court and there is no perversity. Hence, and no substantial
question of law arises.
10. Appeal stands dismissed.
(SHARMILA U. DESHMUKH, J. )
