Gujarat High Court

Chiragbhai Hasubhai Virani vs Hetalben W/O Chiragbhai Virani D/O ... on 12 December, 2023

Author: Ashutosh Shastri

Bench: Ashutosh Shastri

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               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO. 3358 of 2019
                                With
    CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2023
                                 In
                   R/FIRST APPEAL NO. 3358 of 2019

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI                                 Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI                                 Sd/-
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1   Whether Reporters of Local Papers may be allowed     NO
       to see the judgment ?

2      To be referred to the Reporter or not ?                             NO

3      Whether their Lordships wish to see the fair copy                   NO
       of the judgment ?

4      Whether this case involves a substantial question                   NO
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                   CHIRAGBHAI HASUBHAI VIRANI
                              Versus
HETALBEN W/O CHIRAGBHAI VIRANI D/O PRADIPBHAI JAYANTIBHAI SHAH
==========================================================
Appearance:
MR BJ TRIVEDI(921) for the Appellant(s) No. 1
MR JT TRIVEDI(931) for the Appellant(s) No. 1
MS JIGNASA B TRIVEDI(3090) for the Appellant(s) No. 1
MR NAUMAN S QURESHI(10669) for the Defendant(s) No. 1
MR SHAKEEL A QURESHI(1077) for the Defendant(s) No. 1
==========================================================
    CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
          and
          HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                               Date : 12/12/2023

                       CAV JUDGMENT

(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)

1. By way of this First Appeal under Section 19 of the Family

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Courts Act, the appellant - original petitioner has challenged

the legality and validity of the judgment and decree dated

5.3.2019 passed by learned Family Court, Rajkot in Family Suit

No.247 of 2012.

2. The brief facts which have given rise the present appeal

are that appellant and the respondent have married through

Hindi Rites and Ceremony on 5.6.2006 and during matrimonial

life, as per the allegations and counter allegations, rift has been

developed and even after birth of daughter Heli, the relationship

has not remained smooth and by making certain assertions, the

appellant has instituted a suit under Section 13(1) for

Dissolution of Marriage and Section 26 for seeking custody of

the daughter and Section 27 for proper distribution of the joint

properties. The said suit was initially registered as HMP No.60

of 2011 before learned Civil Judge (Senior Division), Amreli but

then after suit having been transferred to the Family Court,

same was registered on 15.10.2012 and renumbered as Family

Suit No.247 of 2012 and thereafter, after completion of the

pleadings and after considering the evidence on record,

including documentary and oral evidence, a decision is taken

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whereby the suit filed by the appellant came to be dismissed by

judgment and decree passed below Exhs.74 and 75 respectively

and it is this judgment and decree which is made the subject

matter of the present First Appeal.

3. The First Appeal appears to have been admitted by virtue

of order dated 11.3.2020 and after completion of the process, it

has come up for consideration before this Court finally, wherein

upon request of learned advocates appearing for the respective

sides, the hearing was concluded by learned advocate Mr. B.J.

Trivedi appearing for the appellant, whereas learned advocate

Mr. Shakeel Qureshi has represented the defendant No.1 and is

being decided by the present judgment and order.

4. Learned advocate Mr. B.J. Trivedi appearing on behalf of

the appellant has vehemently contended that undisputedly, the

judgment and order which has been passed is quite contrary to

the evidence on record and the conclusion arrived at since is not

supported by any cogent material, the order is perverse, hence

on this count alone, same is required to be set at naught. It has

further been contended that even on the basis of the

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circumstances which are prevailing on record, right from 2009

till 2023, the appellant and the respondent are residing

separately and the marriage has irretrievably broken. Minor

child for which proceedings were initiated by the appellant has

also now of quite matured age and as such learned Judge

considering the aforesaid situation prevailing on record ought to

have allowed the suit instead of dismissing the same.

5. Learned advocate Mr. Trivedi has further vehemently

contended that sequence of events if to be looked into, then the

respondent had an eye-over the income and the property of the

appellant from beginning. This aspect ought to have been

appreciated by learned Judge in its true perspective. Learned

Judge ought to have appreciated the conduct of the respondent

as well and her family members. Simply because the appellant

has not examined the witness, stand of the respondent cannot

be accepted in toto. In fact, the appellant has narrated the

entire circumstance in the affidavit-in-chief at Exh.24, at least

that could have been looked into. The evidence as it is it to be

read into, it clearly proves that the respondent on her own

volition has left the matrimonial house. In fact, in cross-

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examination, at Exh.55, it is culled out that though at the

relevant point of time, the appellant was inclined to bring back

the respondent to the matrimonial house, but it is the

respondent who herself was not willing in any form to come

down and as such the conclusion which has been arrived at by

learned Trial Judge as if the appellant has created a

circumstance whereby the respondent has left the matrimonial

house is quite perverse to the record. In fact, at the behest of

the respondent, throughout the matrimonial life, the appellant

has suffered a lot. The respondent as well as the family

according to the appellant are such where members are

quarrelsome and habitual in nature and as such while deciding

the civil suit, learned Judge ought to have kept in mind the

principle of law laid down in the case of Alka Gupta reported in

AIR 2011 SC 9. Having not been done so, the very exercise

undertaken by learned Court below is not just and proper.

6. Learned advocate Mr. Trivedi has further submitted that

immediately after the marriage, with a very short span, problem

has been created by the respondent. On the contrary, the

respondent was in habit of creating unhealthy situation on the

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basis of suspicion. It has been alleged by the respondent that

the appellant had remarried by keeping another woman in

relationship, but for which no evidence credible enough is

available on record and therefore this allegation cannot be

accepted as gospel truth in the absence of any corroborative

material and therefore learned Trial Judge has committed a

serious error in assuming such allegations leveled by the

respondent as true, hence the order being perverse, suffers

from material irregularity in exercising the jurisdiction, same be

quashed and set aside.

7. Learned advocate Mr. Trivedi has then submitted that the

respondent is only interested in getting maintenance of

Rs.20,000/- for herself and Rs.10,000/- for minor daughter and

this is so in view of the fact that father of the respondent is not

earning well and her amount of maintenance is being used for

household expenditure and that is the reason why conveniently,

no resolution is coming forth. It has further been submitted that

the respondent has suppressed the material fact and having

poor memory, on the contrary she had admitted that she is

taking regularly Combiflam tablet/ medicine and the reason

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which compelled her to leave the matrimonial house is merely

an attempt to create a sympathy and as such this was the

reason according Mr. Trivedi since the marriage has been

broken irretrievably, there is hardly any reason to sustain the

order which has been passed by the Court below.

8. Learned advocate Mr. Trivedi has then requested the

Court to allow the original application by dissolution of

marriage and to substantiate his contention, he has pressed into

service few judgments of the Hon'ble Apex Court and then

reiterated that in view of the fact that there is a long passage of

separation, resolution has not been possible, appropriate order

be passed in the interest of justice so as to see that appellant

can be relieved from the mental agony. No other submissions

have been made.

9. As against this, learned advocate Mr. Shakeel Qureshi on

behalf of the respondent has vehemently submitted that the

order passed by learned Judge is clearly in consonance with the

material on record and further the conclusion arrived at by the

Court below are clearly on critical analysis of the evidence on

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record, hence hardly there is any reason to disturb the finding

which has been arrived at by the Court below. On the contrary,

from the evidence, it appears that the appellant has

systematically created a situation whereby the respondent

cannot stick to matrimonial house and that has continued even

after the child having been born as well. It has been submitted

that there is no evidence on record to disprove the specific

assertion which has been made by the respondent about the ill-

treatment and though the appellant has made certain assertion

to prove that there is no cogent evidence led before the Court

below and as such in the absence of any evidence, there is no

earthly reason to dissolve the marriage. In fact, a case has been

put up that the appellant is ill-treating the respondent and

executing cruelty, but it is other way round and apart from that,

to disprove the cruelty, the appellant has not led any evidence

cogent enough to establish. According to the respondent, it is on

account of the relationship with other woman, this problem has

been created. Looking to the sequence of events which has

taken place, no case is made out by the appellant which may call

for any interference. In cross-examination, it has been asserted

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by the respondent that the appellant is inclined to do away with

the respondent since he has been in relation with one woman

named in it of Navsari. This is the reason why this resolution is

not taking place. Though the appellant is having sufficient

means to take care of the respondent, but on account of the

circumstances which are stated, a situation is created so that

the respondent may not stick to the matrimonial home. In fact,

by specific affidavit-in-reply, the husband's income has been

brought to the notice. It has been submitted that the respondent

had been trying hard to see that marriage span may somehow

continue, but it is only on account of the conduct of the

appellant, same is not possible and as such learned advocate

Mr. Qureshi has submitted that even after there is a gap of

around 14 years, but keeping in view the interest of the girl

child, at least the order being not perverse, requires no

interference.

10. Learned advocate Mr. Qureshi has submitted two

decisions to justify his stand, viz. (1) in the case of Jasbir Kaur v.

Satbir Singh reported in 2017 (0) AIJEL-SC 59769 and (2) in the

case of Shilpa Sailesh v. Varun Sreenivasan reported in 2023 (0)

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AIJEL-SC 70913 and thereby has submitted that when there is

no evidence material enough to justify the stand of the

petitioner, no interference be made and what has been

suggested by learned counsel Mr. B.J. Trivedi can be possible

not in exercise of extraordinary jurisdiction to set apart the

matrimonial life, those powers may be exercised by the Hon'ble

Apex Court in exercise of jurisdiction under Article 142 of the

Constitution of India, hence a request is made not to entertain

the appeal. No other further submissions have been made.

11. In rejoinder to this, learned advocate Mr. B.J. Trivedi has

submitted that on behalf of the appellant, everything is

disclosed and there is no suppression of any nature and has

reiterated further that considering the passage of time which

has elapsed, in the interest of justice, appropriate order be

passed to grant divorce more particularly when the matrimonial

life has been irretrievably broken.

12. Having heard learned advocates appearing for the parties

and having gone through the material on record, a perusal of

the order which has been passed is apparently well-supported

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by the reasons and based upon the critical analysis of the

material on record and after considering the stand taken by

both the sides, so it is not that exercise of jurisdiction is either

perverse or suffers from material irregularity, hence simply

because there is a gap between the appellant and the

respondent in residing together, same ipso facto cannot be a

sole ground to grant decree as prayed for by the appellant.

Hence, in the absence of any material irregularity or perversity

of any nature, the order in our considered opinion does not call

for any interference.

13. The scope of First Appeal is no not that much

circumscribed but at the same time, there are some fetters also

in exercising such jurisdiction as can be seen from the

observations made by the Hon'ble Apex Court in few decisions,

relevant of which we deem it proper to consider hereunder:

(1) In the case of Venkatesh Construction Company v.

Karnataka Vidyuth Karkhane Limited reported in (2016) 4 SCC

119, Hon'ble the Apex Court held and observed in para 20 as

under:-

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"20. The Appellate Court may not interfere with the finding of the trial court unless the finding recorded by the trial court is erroneous or the trial court ignored the evidence on record.

The High Court reversed the decree passed by the trial court without discussing oral and documentary evidence and several grounds raised before the trial court. The High Court veered away from the main issue and went on to elaborate on the law of arbitration and the mode of setting aside the arbitral award under Section 34 of the Arbitration Act, which in our view, was not warranted. Without considering the oral and documentary evidence, the High Court erred in interfering with the factual findings recorded by the trial court and the impugned judgment is liable to be set aside."

(2) In the case of V. Prabhakara v. Basavaraj K. (Dead) By

Legal Representatives and Another reported in (2022) 1 SCC

115, Hon'ble the Apex Court held and observed in para 22 to 24

as under:-

"22. The first appellate court while exercising power under Section 96 can re-do the exercise of the trial court. However, such a power is expected to be exercised with caution. The reason being, the trial court alone has the pleasure of seeing the demeanor of the witness. Therefore, it has got its own advantage in assessing the statement of the witnesses which may not be available to the appellate court. In exercising such a power, the appellate court has to keep in mind the views of the trial court. If it finds that the trial court is wrong, its decision should be on the reasoning given. A mere substitution of views, without discussing the findings of the trial court, by the appellate court is not permissible. If two views are possible, it would only be appropriate to go with the view expressed by the trial court. While adopting reasoning in support of its findings, the appellate court is not expected to go on moral grounds alone.

23. The aforesaid views expressed by us are nothing but a reiteration of the settled principle of law as could be seen through the following paragraphs of the decision rendered by this Court in the case of Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497:

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"27. It is no doubt true that the High Court was exercising power as first appellate court and hence it was open to the Court to enter into not only questions of law but questions of fact as well.

It is settled law that an appeal is a continuation of suit. An appeal thus is a re-hearing of the main matter and the appellate court can re-appraise, re- appreciate and review the entire evidence - oral as well as documentary and can come to its own conclusion.

28. At the same time, however, the appellate court is expected, nay bound, to bear in mind a finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanor of witnesses and, hence, the trial court's conclusions should not normally be disturbed. No doubt, the appellate court possesses the same powers as that of the original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, contrary to well- established principles of law or unreasonable.

29. Before more than a century, in Coghlan v. Cumberland [(1898) 1 Ch 704 (CA)] Lindley, M.R. pronounced the principle thus;

"Even where the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the Judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the Judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions and when the question arises which witness is to be believed rather than another; and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may shew whether a statement is credible or not; and these circumstances may warrant the Court in differing from the Judge, even on a

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question of fact turning on the credibility of witnesses whom the Court has not seen."

(See also observations of Lord Thankerton in Watt v. Thomas, [1947 AC 484])

30. In Sara Veeraswami v. Talluri Narayya [AIR 1949 PC 32] the Judicial Committee of the Privy Council, after referring to relevant decisions on the point, stated :

"...but if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given."

31. This Court also, before more than half a century in Sarju Pershad v. Jwaleshwari, Pratap Narain Singh [SCC p. 717 para

"8. The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact.

32. Referring to several cases on the point, the Court concluded:

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(Sarju Pershad case, SCC p. 720, para 18):

"18. ...The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the court, outweighs such finding."

(emphasis supplied)

33. After about a decade, in Radha Prasad v. Gajadhar Singh [this Court reiterated: (AIR p. 118, para 14)

"14. The position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the appeal court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the trial Judge's conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanor of the witness in court. But this does not mean that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. When it appears to the appeal court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the appeal court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of credibility based entirely on the demeanor of witnesses observed in court but a question of inference of one fact from proved primary facts the court of appeal is in as good a position as the trial Judge and is free to reverse the findings if it thinks that the inference made by the trial Judge is not justified."

34. In T.D. Gopalan v. Commissioner of Hindu Religious & Charitable Endowments [(1972) 2 SCC 329], this Court said:

(SCC p. 333, para 9):

"9. The High Court next proceeded to reproduce a summary of the statement of each of the witnesses produced by the defendants. No attempt whatsoever was made to discuss the reasons which the learned District Judge had given for not accepting their evidence except for a general observation here

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and there that nothing had been suggested in the cross- examination of a particular witness as to why he should have made a false statement. We apprehend that the uniform practice in the matter of appreciation of evidence has been that if the trial court has given cogent and detailed reasons for not accepting the testimony of a witness the appellate court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial court. We are, therefore, not in a position to know on what grounds the High Court disagreed with the reasons which prevailed with the learned District Judge for not relying on the evidence of the witnesses produced by the defendants."

35. Yet in another decision in Madhusudan Das v. Narayanibai [(1983) 1 SCC 35], this Court said:(SCC pp. 39-40, para 8):

"8. ...At this stage, it would be right to refer to the general principle that, in an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. ...The principle is one of practice and governs the weight to be given to a finding of fact by the trial court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact."

(emphasis supplied)

36. Three requisites should normally be present before an appellate court reverses a finding of the trial court:

(i) it applies its mind to reasons given by the trial court;

(ii) it has no advantage of seeing and hearing the witnesses; and

(iii) it records cogent and convincing reasons for disagreeing with the trial court.

37. If the above principles are kept in mind, in our judgment,

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the decision of the High Court falls short of the grounds which would allow the first appellate court to reverse a finding of fact recorded by the trial court. As already adverted earlier, the High Court has 'virtually' reached a conclusion without recording reasons in support of such conclusion. When the court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial court. Thereafter, it is certainly open to the appellate court to come to its own conclusion if it finds that the reasons which weighed with the trial court or conclusions arrived at were not in consonance with law."

14. Considering the aforesaid observations which have been

made by the Hon'ble Apex Court, on perusal of the order, it does

not transpire that any distinguishable material is placed before

us which may call for any interference. Hence, the order

impugned is appearing to be justified.

15. Additionally, a further perusal of the material and the

assertions of the respondent was that the respondent has

committed cruelty is sounding no confidence more particularly

when there is no evidence led by the appellant nor any witness

has been examined to justify that. Hence, in absence of any

cogent material, it is not possible for us to jump to a conclusion

that cruelty is executed by the respondent upon the appellant

which may justify the relief for dissolution of marriage and it is

more so in view of the fact that upon analysis of the material on

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record, a categorical conclusion is arrived at that the

respondent has not executed any cruelty or mental torture upon

the appellant. From reading the observations contained in

paragraph 29 in specific terms of the impugned order, we are of

the clear opinion that in the absence of any distinguishable

material, it is not possible for us to come to a different

conclusion.

16. Yet another circumstance which is clearly visible from the

record is that the present appellant has not at any point of time

made any attempt to call the respondent as well as the minor

daughter to come to his place for residing. There is no evidence

also visible from the record except bare and bald assertion and

as such the relief prayed for is not justified at all as claimed by

the appellant herein.

17. On record, an attempt is made to justify the bald assertion

by just raising an issue about the income of the appellant, but

when the record is perused, it appears that at the relevant point

of time, what was the pleadings with regard to income that

appears to have been considered and appropriate order with

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regard to maintenance is passed. This overall circumstance is

clearly justifying the request that dissolution of marriage more

particularly when young minor girl child is undisputedly out of

wedlock.

18. Furthermore, though it cannot be inferred so succinctly

even the stand of the respondent but then it appears from the

record that on account of some relation, a rift might have taken

place, but apart from that also, there appears to be no justified

reason to put an end to a matrimonial life. Even from cross-

examination as well as from other cogent material, plea of

readiness and willingness to take the respondent back to the

matrimonial house is also not so succinctly proved, except some

application has been given at Exh.31. By such mere application,

it is not possible for the Court to infer that it is only the

respondent who left the matrimonial house on her own which

may permit the appellant to seek a decree of dissolution of

marriage and in addition thereto, an attempt is made by the

appellant to create an atmosphere that the respondent is not

having sound mental condition, but on that issue also, there is

no cogent material at all led by the appellant. So, on the basis of

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such kind of weak piece of material namely bald assertion, it is

not possible to dislodge the conclusion which has been

specifically arrived at by the learned Trial Judge in exercise of

the appellate jurisdiction in view of the settled position of law as

indicated herein-above.

19. In the context of the aforesaid discussion, now from

perusal of the decision which has been relied by learned

advocate Mr. B.J. Trivedi to justify his plea for dissolution of

marriage and allowing the appeal, i.e. judgment of the Hon'ble

Supreme Court in the case of A. Jayachandra v. Aneel Kaur

reported in 2004 LawSuit (SC) 1444, it is no-doubt true that

cruelty can be a ground for dissolution of marriage, provided

the same be proved. Here in paragraph 29 of the impugned

order, it has been clearly established and concluded that

appellant has not examined any witness to justify such cruelty

or an attempt to take the respondent to matrimonial house.

Now, when such assertion of the appellant has not been

supported by any cogent material, cruelty cannot be inferred

and as such the decision cited by learned advocate is of no

assistance. Same is the case with decision of the Hon'ble

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Supreme Court i.e. in the case of Vijaykumar Ramchandra Bhate

v. Neela Vijaykumar Bhate reported in 2003 LawSuit (SC) 467,

wherein also, facts if to be looked into, same are quite different

and in that, there was a specific opinion as well as the material

relating to such issue with regard to cruelty. Whereas, here, as

stated earlier, same is completely missing and as such we

cannot apply the judgment in a mechanical manner.

20. It is a settled position of law on the principle of

precedence that slight change in the fact even one additional

fact would make a world of difference in applying the principle.

Said proposition of law, as held by the Hon'ble Apex Court, in

the case of State of Madhya Pradesh Vs. Narmada Bachao

Andolan and Another reported in (2011) 7 SCC 639, we

deem it proper to quote relevant observations contained in para

64 hereunder:-

"64. The Court should not place reliance upon a judgment without discussing how the factual situation fits in with a fact-situation of the decision on which reliance is placed, as it has to be ascertained by analysing all the material facts and the issues involved in the case and argued on both sides. A judgment may not be followed in a given case if it has some distinguishing features. A little difference in facts or additional facts may make a lot of difference to the precedential value of a decision. A judgment of the Court is not to be read as a statute, as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. One additional or different fact may make a world of difference between

NEUTRAL CITATION

C/FA/3358/2019 CAV JUDGMENT DATED: 12/12/2023

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the conclusions in two cases. Disposal of cases by blindly placing reliance upon a decision is not proper. (Vide MCD v. Gurnam Kaur, Govt. of Karnataka v. Gowramma and State of Haryana v. Dharam Singh)

21. Hence, on the basis of the aforementioned proposition and

perusal of other judgments also which have been stated before

us require no much lengthy discussion as facts are visibly quite

different and since here no evidence worth the name is led, we

are not in a position to apply the same just for sake of disturbing

the findings of learned Trial Judge. Overall material on record

vis-a-vis the decisions which have been cited before us would

lead to a situation where it is difficult for us to accept the stand

of the appellant as there is no sufficient material available on

record and in the absence of any distinguishable material, the

conclusion which has been arrived at by learned Trial Judge is

not inclined to be disturbed more particularly when there is no

material irregularity or illegality of any nature. Hence, the

appeal being merit-less, we deem it proper to dismiss the same.