Bombay High Court
Jitendra Anil Sonar vs Ketki @ Jayshree W/O Jitendra Sonar on 16 January, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:1195-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FAMILY COURT APPEAL NO.37 OF 2022
WITH
CIVIL APPLICATION NO.8605 OF 2022
Shri Jitendra Anil Sonar,
Age-33 years, Occu:Tea Stall,
R/o-Teli Chowk, Holewada, Jalgaon
Taluka and District-Jalgaon
...APPELLANT
VERSUS
Ketki alias Jayshree W/o Jitendra Sonar,
Age-29 years, Occu:Household,
R/o-C/o- Rajendra Pandit Sonar,
In front of Datta Temple, Kusumba,
Taluka and District-Jalgaon.
...RESPONDENT
...
Mr. S.V. Deshmukh Advocate for Appellant.
Ms. S.T. Kazi Advocate for Respondent.
...
CORAM: SMT. VIBHA KANKANWADI AND
S.G. CHAPALGAONKAR, JJ.
DATE : 16th JANUARY, 2024
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. Present Appeal has been filed under Section 19 of the
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Family Courts Act, by the appellant - husband to challenge the
decree for divorce passed by the learned Judge, Family Court,
Jalgaon in Petition No.A-395/2019 on 5 th April 2022 which was
filed by the present respondent - wife.
2. It is not in dispute that marriage between the appellant
and respondent was solemnized on 27th May 2011 at Jalgaon.
3. The Petition was filed by the wife on the ground of cruelty.
Though the learned Advocate for the appellant submits that the
perusal of the Petition would show that it has been stated that
the Petition has been filed under Section 13(1)(ib) of the Hindu
Marriage Act, 1955, which according to him is a wrong section,
however we are of the considered opinion that the entire
contents are required to be considered to arrive at a conclusion
under which provisions of law the relief has been sought.
Mentioning a wrong section in the title of the Petition will not
affect the jurisdiction and power of the Court to consider it under
appropriate provision.
4. We have heard learned Advocate Mr. Deshmukh appearing
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for the appellant - husband and learned Advocate Ms. Kazi
appearing for the respondent - wife and perused the documents
produced.
5. It has been vehemently submitted on behalf of the
appellant that though the marriage was solemnized on 27 th May
2011, there was absolutely no complaint by the wife regarding
ill-treatment. Now, at the time of Petition, wife came up with the
story that the husband is addicted to alcohol and then ill-treated
her. The learned trial Court ought not to have believed in the
same. The wife has admitted in the cross-examination that she
has left the company of the husband on her own and it has also
been confirmed by her father, who has been examined as a
witness. In fact the husband had sent notice for restitution of
conjugal rights, which shows that he had desire to cohabit with
the respondent but for some obvious reasons it appears that the
wife has left the house. Now, though the Appeal has been filed
within limitation and respondent had notice of the same, still she
has performed second marriage, which is in violation. Learned
Advocate for the appellant has relied on the decision in Anurag
Mittal vs. Shaily Mishra Mittal, (2018) 9 SCC 691 , wherein it has
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been observed that the Hindu Marriage Act is a social welfare
and beneficent legislation and must be interpreted in manner
which advances object of legislation since it intends to bring
about social reforms. Court cannot interpret socially beneficial
legislation on basis as if words therein are cast in stone. Object
of Section 15 of the Hindu Marriage Act is to provide protection
to persons who have filed appeal against decree of dissolution of
marriage and to ensure that said appeal is not frustrated. The
learned Advocate therefore, submits that taking into
consideration the subsequent events also the Appeal deserves to
be admitted.
6. Per contra, the learned Advocate for the respondent
submitted that the trial Court has not erred in appreciation of
evidence and merely because there was no complaint filed under
Section 498-A of the Indian Penal Code it cannot be said that
everything was going smoothly. The wife specifically stated that
the husband was addicted to liquor and other vices as well as he
was addicted to gambling. Under the influence of liquor the
husband used to assault the wife. They have no issue out of the
marriage and therefore, she was insulted for not bearing child.
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This allegation has been then supported when offence came to
be registered against the appellant. Copy of the charge-sheet
has been produced on record, which shows that husband was
involved in offence under Section 12-A of the Maharashtra
Prevention of Gambling Act. Even non-cognizable offence came
to be registered on 14th August 2019 when wife was threatened
by the appellant. After the decree was passed, which is a
Judgment in rem, the respondent has performed marriage on
14th May 2022. The notice of the Appeal was received by the
respondent in July 2022 and thereafter she caused appearance
in the matter. No stay was granted by this Court when notice
was issued. Now respondent is totally settled in her life after
performing the marriage.
7. At the outset, we would say that if the material is found to
admit the Appeal then only the question of the second marriage
during the appeal period and interpretation of Section 15 of the
Hindu Marriage Act will come into play. Here, it appears that
both the parties have led oral evidence as well as documentary
evidence. We agree with the statement on behalf of the wife that
merely because no complaint has been filed about the ill-
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treatment, that does not mean that the relationship was good or
there was no cruelty to the wife. When the wife had come to the
Court seeking decree for dissolution of marriage on the ground
of cruelty, the burden was on her to prove the same. The ill-
treatment was on the count, as per the contention of the
petitioner - wife that the husband was addicted to liquor,
gambling and also consuming Bhang. Secondly, the cruelty was
on the count of insulting the wife on the ground that she has not
begotten a child and therefore calling her as 'infertile'. She is
specific in stating that she left the matrimonial home, initially
about four months prior to the Petition but she was asked by her
father to resume the cohabitation and therefore she returned to
the matrimonial home. But again the husband started acting in
the same way and therefore, since about 1½ months prior to the
Petition she was staying with her father. It is to be noted that in
the cross-examination, wife has admitted that her father is
residing nearby to the matrimonial home. Father also used to
visit her material home and she was also visiting the house of
her father. But the cross-examination does not indicate that she
used to stay with her father for longer times. Visit to father's
house is, therefore, natural. Wife has specifically denied that
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when she was residing with her father, husband had come to
fetch her 3 to 4 times for cohabitation. She has specifically
stated that husband had come under the influence of liquor to
quarrel with her.
8. Now objection has been taken regarding the charge-sheet
under the Maharashtra Prevention of Gambling Act against the
husband, as it is the even after the presentation of the Petition
and therefore, it could not have been considered. We do not
agree with the said submission. The charge-sheet was filed to
support the allegation that husband was addicted to gambling.
Though the alleged event has taken place later on, yet it
supports contention of the respondent and for that purpose the
copy of charge-sheet was filed. It also further appears that wife
had filed complaint against the husband for threatening her and
case has been registered vide Crime No.769 of 2019 for offence
under Sections 294, 323, 506 of the Indian Penal Code and the
said fact is admitted by the husband.
9. Objection has also been taken for not appreciating the
admission given by the wife and her father that the wife is
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residing with father on her own wish and has no intention to
resume cohabitation. The alleged admission cannot be read in
isolation. The wife as well as her father have specifically
explained that since there was fear in the mind of the wife about
her life, she was not resuming cohabitation. As regards addiction
to liquor is concerned, except denial or word against word there
is nothing. But the question still remains as to why the wife
would raise the said point after eight years of marriage. Her
sufferance in silence cannot be considered against her. The
cross-examination of the wife taken on behalf of the husband
also makes a mention that the husband had asked for pardon.
The question then arises, for what purpose he had asked for
pardon. It can also be seen from the examination-in-chief of the
husband that he has also raised allegations against the wife,
mainly in respect of her behaviour. It is alleged that the wife
was not doing any work or rather used to sleep, used to use
mobile continuously and that she was short tempered and used
to quarrel on petty issues. It can then be said that the husband
is also making these allegations after eight years of marriage.
Therefore, the appreciation of evidence as done by the learned
Judge of the Family Court appears to be correct. Merely because
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a second view is possible, we need not go into those allegations.
Therefore, the Appeal deserves to be dismissed at the admission
stage itself.
10. When the Appeal is not worth admission also, we need not
go into the aspect of interpretation of Section 15 of the Hindu
Marriage Act. No doubt, it can be certainly said that the wife
ought to have waited for the appeal period to over for
performing the second marriage, but then when the notice was
issued, there was no stay to the operation and implementation of
the decree that was passed. Of course, the notice has been
issued when present respondent had already performed the
marriage and it appears that it was not known to the husband.
Before parting, we would like to say that there was an attempt
by this Court to have some settlement between the parties,
taking into consideration the fact that the respondent has
already married. However, a compromise could not take place
and therefore, we had taken up the matter for hearing at the
stage of admission itself by giving an opportunity to both the
sides.
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11. For the aforesaid reasons, the Appeal stands dismissed at
the admissions stage.
12. In view of the dismissal of the Appeal itself, nothing
survives for consideration in the Civil Application. The Civil
Application, therefore, stands disposed of.
[S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/JAN24
