Bombay High Court
Vasant Keshav Dunakhe vs Meera Vasant Dunakhe on 20 February, 2025
2025:BHC-AUG:5463
-1-
sa425.94.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 425 OF 1994
Vasant s/o Keshav Dunakhe
age 34 years, occ. Service
Clerk in M.S.E.B.
R/o Jalgaon .. Appellant
versus
Mrs. Meera w/o Vasant Dunakhe
age 25 years, occ. Tailoring work
c/o Ganpatrao Savliram Dixit
Panghatti, Naya Mohalla
Barahanpur (Madhya Pradhesh) .. Respondent
Mr. S. V. Dixit, Advocate holding for Mr. V. J. Dixit, Advocate for the
Appellant.
Mr. N. V. Dhake, Advocate holding for Mr. G. V. Wani, Advocate for
the Respondent.
CORAM : R. M. JOSHI, J.
DATE : 20th FEBRUARY, 2025.
JUDGMENT :
1. This second appeal takes exception to the judgment and
decree passed by the First Appellate Court in Civil Appeal No.
222/1990 whereby the petition for restitution of conjugal rights filed
by the appellant/husband under Section 9 of the Hindu Marriage Act
came to be dismissed by reversing the judgment and decree dated
01.10.1990 passed in Hindu Marriage Petition (HMP) No. 47/1989.
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2. Parties are referred to as husband and wife for the sake
of convenience.
3. The marriage between the parties was solemnised in May
1985. As per the case of husband, wife was insisting for residing
separately and was not prepared to stay with husband's family. It is
his contention that for this reason the wife went to her parental home
time and again and finally during the period of her pregnancy, she
went to her parents house and after delivering a female child did not
return to the matrimonial home. Husband further claims that he
was maintaining his wife inspite of the fact that she was residing
along with her parents and money orders were sent to that effect.
Since the wife has left company of the husband without any
reasonable cause, petition under Section 9 of Hindu Marriage Act
came to be filed.
4. Wife filed written statement and denied the
allegations/contentions of the husband. It is her contention that she
never insisted for separate residence. It is alleged that on account of
harassment caused by husband, she was forced to leave the
matrimonial home.
sa425.94.odt
5. Before the Trial Court, oral as well as documentary
evidence was led by both the parties. Trial Court, by judgment dated
01.10.1990, allowed the petition and wife was directed to resume
cohabitation with the husband. Being aggrieved by the said
judgment, appeal came to be preferred being Civil Appeal No.
222/1990. Learned First Appellate Court reversed the findings
recorded by the Trial Court and held that on account of harassment
caused to her, wife left the matrimonial home and as such husband
is not entitled for decree/order of restitution of conjugal rights.
6. Learned counsel for husband submits that the Trial
Court has rightly taken into consideration the evidence on record
and passed decree. He has drawn attention of the Court to the
findings recorded by the First Appellate Court. It is submitted that
the First Appellate Court has failed to take into consideration the
documentary evidence i.e. Exhibit 31 dated 11.03.1986 sent by wife
to husband wherein it is categorically stated that the husband must
look for separate residential premises for them. It is his submission
that though allegation of harassment is made against the husband,
there is absolutely no corroborative evidence.
sa425.94.odt
7. On the other hand, learned counsel for wife has drawn
attention of the Court to the cross-examination of wife conducted on
behalf of the husband which according to him, clearly indicates that
on account of harassment/beating at the hands of husband, the wife
has left the matrimonial home. It is his submission that in exercise
of jurisdiction under Section 100 of Code of Civil Procedure, findings
of fact recorded by the First Appellate Court being not perverse
cannot be interfered.
8. Parties got married in the year 1985. In the year 1986, a
daughter is begotten from the said wedlock. Though wife is said to
have frequently visited parents house however, she did not leave
company of husband. Though there is evidence in the form of letter
dated 11.03.1986 where there is reference of wife enquiring husband
about getting separate premises, however, nothing is reflected
therefrom to the effect that unless husband gets such premises she
will not resume cohabitation. On the other hand, cross examination
conducted on behalf of the husband clearly shows that the wife was
residing at matrimonial home. It has specifically come in the cross
examination of the wife that in Diwali of 1988, she along with
sa425.94.odt
husband went to her parental home and she stayed there for one day.
After they came back, husband had beaten her and thereafter she
was forced to leave matrimonial home. Thus, from suggestions made
to the wife during her cross examination, the evidence of her
harassment is brought on record.
9. It is open for the First Appellate Court to re-appreciate
the evidence led before Trial Court and record fresh findings on fact.
The First Appellate Court has accepted evidence of wife in order to
hold that she was in a position to prove harassment caused to her.
Having regard to the fact that evidence of harassment has come
during the cross examination of wife, this Court finds no perversity
in the findings recorded by the First Appellate Court. For want of any
perversity in the findings recorded by the First Appellate Court, this
Court finds no substantial question of law involved in this appeal.
Hence, appeal stands dismissed.
10. Pending application if any, does not survive and stands
disposed of.
( R. M. JOSHI)
Judge
dyb
