[Cites 7, Cited by 0]
Gujarat High Court
Tanuja D/O Haresh Motwani vs Rajesh Prakash Ahuja on 2 December, 2025
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Reserved On : 26/09/2025
Pronounced On : 02/12/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 339 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/SECOND APPEAL NO. 339 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
No
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TANUJA D/O HARESH MOTWANI
Versus
RAJESH PRAKASH AHUJA
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Appearance:
MR NIRAV K PADHIYAR(5678) for the Appellant(s) No. 1
MR NL RAMNANI(2400) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
1. The present Second Appeal is filed under Section 100 of
the Code of Civil Procedure challenging the judgment and
decree dated 11.07.2018 passed in Regular Civil Appeal No.25
of 2016 whereby 2nd Additional Judge, Gandhidham, Kutch
dismissed the said appeal and confirmed the judgment and
decree, dated 11.07.2016, passed by 4th Additional Senior Civil
Judge, Gandhidham, Kutch in H.M.P. No. 2 of 2011.
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2. For the sake of brevity, the parties are referred to as per
their original status as that in the suit.
3. Brief facts arising in the present Second Appeal are that
the plaintiff filed petition under Section 13 of the Hindu
Marriage Act for divorce, on the ground of desertion and cruelty
by the defendant wife. The defendant appeared in the said
petition and filed written statement, Exhibit-14, the trial court
framed issues, vide Exhibit-22 at page 42, which reads as
under:-
" 1) Whether petitioner proves that after the
marriage the respondent used to act with petitioner in
a cruel manner ?
(2) Whether petitioner proves that, before two years
of filing of the present petition, the respondent has
deserted the petitioner?
(3) Whether petitioner proves that, petitioner is
entitled for relief as prayed for?"
4. The plaintiff examined himself, vide Exhibit-24 and the
plaintiff's mother was examined vide Exhibit-35. The defendant
examined herself vide Exhibit-43 and father of the defendant
was examined vide Exhibit-53 and after considering the oral
evidence, documentary evidence and giving findings on all the
issues, the trial Court decreed the said suit on the ground of
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plaintiff proved the desertion and cruelty by the defendant wife.
Aggrieved by the said judgment and decree, the defendant wife
filed Regular Civil Appeal No.25 of 2016 and after
reappreciating the evidence, the appellate Court came to the
conclusion that the plaintiff has not proved desertion but from
the documentary evidence and after re-appreciating the evidence
the appellate Court came to the conclusion that the plaintiff
husband has proved that the defendant wife has committed
cruelty on the husband, and therefore, dismissed the said appeal
and confirmed the judgment of the trial Court by granting
divorce on the ground that the plaintiff husband has proved the
fact of cruelty committed by the defendant wife on the plaintiff
husband. Hence, the present Second Appeal.
5. Learned advocate for the defendant has argued that the
defendant was always ready and willing to reside with the
plaintiff husband and the plaintiff used to reside peacefully with
the plaintiff and her in-laws, but the mother-in-law and sister-in-
law, the defendant used to cruel on small issues and even
physically harassing her and were informing the defendant that
she has brought nothing in dowry and that her father is begger.
It is also the case of the defendant that the mother-in-law and
sister-in-law used to instigate the defendant and her father-in-
law to drink liquor and that the father-in-law of the defendant
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used to make sexual advantages and used to touch part of her
body on the pretext of calling her for domestic household work,
but as she considered him her father figure, she did not make
hue and cry on it and attended father in law as father figure.
6. The defendant has also in her memo of appeal stated that
in the month of June-2010, when her mother-in-law was taken
to the Hospital and when defendant was sleeping alone in her
room, her father-in-law came and make illicit relation to call her
for sexual gratification and that she was in tears and that at that
point of time, the said incident was informed to the plaintiff
husband and he said that the defendant wife shall have to
tolerate the same or to go to her parents house and if the
defendant informs the said incident to anyone, he shall burn her
alive and it is the case of the defendant that after the month of
July-2010, she started residing separately with the plaintiff at
Adipur, but there also mother-in-law and sister-in-law used to
come and instigate the plaintiff husband and on 18.01.2018, the
defendant wife was forced to leave the house of the plaintiff
husband.
7. It is the case of the defendant that the trial Court and the
first appellate Court committed gross error in believing the
cruelty as per Section 13 of the Hindu Marriage Act.
8. Moreover, it has been argued by learned advocate for the
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defendant that the plaintiff had not consume poison because of
the alleged act of cruelty alleged to have been committed by the
defendant on the plaintiff.
9. Moreover, it has also been argued by learned advocate for
the plaintiff that the plaintiff has not proved that the defendant
has committed cruelty on defendant, and therefore, it has been
argued by learned advocate for the plaintiff that the present
Second Appeal is required to be admitted on the following
substantial question of law:-
(i) Whether both the lower courts have committed gross error
in believing the cruelty committed as per Section 13 of the
Hindu Marriage Act by the appellant?
(ii) Whether the court below erred believe in cruelty only on
the basis of consumption of the poison by
applicant/opponent himself?
(iii) Whether the courts below erred in believing cruelty in
absence of evidence?
(iv) Whether the findings of lower court are perverse i.e. based
on no evidence?
(v) Whether the consumption of poison by the
Applicant/opponent himself amounts to cruelty on him?
(vi) Whether the courts below ered in believing consumption of
poison in absence of evidence?
(vii) Whether the courts below erred in believing that the
allegaion leveled against the family members of the husband
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are administered as cruelty under Hindu Marriage Act?
(viii) Whether the ld. Lower appellate court has committed error
in not remanding the matter before Trial Court?
(ix) Whether the ld. Lower appellate court has committed error
in not quashing and setting aside judgment and decree
passed by the ld. Trial Court?
(x) Whether the order and decree of the Hon'ble Appellate
Court is beyond the scope of the Appeal?
10. Per contra, learned advocate for the plaintiff has argued
that there are concurrent findings of the Court on the ground of
the fact of plaintiff proving that the defendant has committed
cruelty on the plaintiff. Moreover, it has been argued by learned
advocate for the plaintiff that though the defendant has stated
that the defendant wants to come and reside with the plaintiff,
there is neither any petition under Section 9 of Hindu Marriage
Act nor any supporting evidence to claim the rights and there is
also no effort made by the defendant to come and reside with the
plaintiff. Moreover, the incident, that has been happened on
17.01.2011, when the plaintiff had consumed poison at the
office premises and when the defendant and her brother had
come at Hospital, thereafter also, the defendant did not want to
reside with the plaintiff and wanted to go back to her parental
house, and therefore, the fact that defendant states that she wants
to come and reside with the plaintiff is a got up story and not
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true.
11. Learned advocate for the plaintiff has also argued that the
allegations that have been made against the plaintiff and her
family members, more particularly against his father, amounts to
cruelty, and therefore, the trial Court and the first appellate
Court has rightly granted divorce. Learned advocate for the
plaintiff has also argued that the defendant had filed complaint
under section 498 of the Indian Penal Code against the plaintiff,
his father, mother and sister and there was allegations made
against all the family members, the said complaint was filed at
Palanpur and investigation, thereafter was transferred to
Gandhidham and on merits the plaintiff and his family members
were acquitted, and therefore, also the plaintiff was entitled for
decree of divorce in view of the fact that false complaints were
made against the plaintiff and his family members and the same
having been proved, the trial Court and the first appellate Court
have granted decree of divorce.
11.1 Having heard learned advocate for the parties and having
considered the judgment and decree passed by the trial Court
and confirmed by the first appellate Court, the fact remains that
looking at the oral evidence of the plaintiff and the witness of
the plaintiff produced vide Exh.35, it is the case of the plaintiff
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that the plaintiff has sought divorce on the ground of desertion
and cruelty under Section 13 (1)(ia) (ib) of the Hindu Marriage
Act, 1955. It is the case of the defendant - wife that she was
harassed during her stay at in-laws.
11.2 The facts of the present case are that the defendant wife
had subjected the plaintiff husband to such a cruelty which led
the plaintiff husband to consume poison. The defendant wife
voluntarily deserted the Plaintiff husband. The fact remains that
the marriage between the parties was solemnised on 12.12.2009
at Gandhi Dham, Kutch and the petition has been filed in the
year 2011 and the entire case of the defendant wife was that
defendant wife did not come and reside with the plaintiff
husband as plaintiff husband did not want defendant wife to
come and reside at his house and that husband had not come to
her parental house to bring her back at her in-laws house.
11.3 If the facts stated in the written statement are taken into
consideration, the allegations that have been made by the
defendant Wife at Para:16 of the written statement filed vide
Exh.14, the wife has stated that the husband had threatened the
wife that she has to reside as per his wishes and desire and if she
does not want to reside as per the way the husband states, the
defendant wife had to go back to her parental house and the
allegations of sexual abuse to the wife by the father of the
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plaintiff's husband has been stated in the written statement. The
allegation of sexual abuse to the wife as stated in the written
statement is to further extent that father of the husband had even
tried to come inside the room where the wife was sleeping alone
and that on informing the plaintiff husband about the incident, it
has been stated in the written statement that if defendant informs
this fact to anyone, she will be burned alive and the said fact
was informed by the defendant wife to her father and thereafter
the defendant's brother named Deepak had come and talked to
the father-in-law of the defendants.
11.4 In the written statement, the defendant has gone one step
further and stated that the said facts were known to the public at
large and, therefore, the defendant was thrown out of the house
of the plaintiff. The fact of the father of the plaintiff i.e. the
father-in-law of the defendant making sexual advance on the
defendant has been reiterated in the written statement though in
the examination-in-chief, the defendant is silent on the said
aspect and again the said fact has been narrated in the Second
Appeal memo. Therefore, the fact of making baseless
allegations without proving the facts, itself amounts to mental
cruelty on plaintiff husband.
11.5 The learned advocate for the defendant wife has tried to
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argue the case that the facts stated in the written statement and
pleadings would not amount to mental cruelty, but the fact that
will have to be taken into consideration is that all throughout, it
was a defendant case that the father-in-law of the plaintiff is
trying to sexually abuse the defendant and the said fact having
not been proved by the defendant in her evidence nor does the
father of the defendant while entered the witness box had proved
the said fact vide Exh.53 suggests that plaintiff has proved the
fact of mental cruelty. If the cross examination of the plaintiff is
taken into consideration, father has also not stated anything on
the aspect of alleged sexual abuse done by the father of the
plaintiff on the defendant.
11.6 Moreover, it has also been admitted by the learned
advocate for the defendant that a Criminal Application No.1469
of 2011 was filed under Section 498 of the Indian Penal Code,
1860 at Palanpur and thereafter the investigation was transferred
to Gandhidham and on merits acquittal order was passed on
11.09.2023. In the said complaint, there were allegations made
against the plaintiff, the mother of the plaintiff, the sister of the
plaintiff and the father of the plaintiff and in that complaint also,
there was no mention of sexual abuse on the defendant by the
plaintiff's father and therefore by way of filing false criminal
complaints, mental cruelty appears to have been meted out and,
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therefore, the trial Court and the first appellate Court have
rightly granted decree of divorce.
11.7 The trial Court and the first appellate Court have also
taken into consideration that though defendant has come
forward with the case that the plaintiff had consumed poison
because of the fact of the alleged sexual abuse by the father of
the plaintiff towards the defendant, but it has come on record
that defendant wife had not come to stay permanently when she
came to the hospital when defendant was admitted because of
consuming poison. There was an occasion for the defendant to
stay back if she desirous of restitution of conjugal rights and it is
not coming forward that she showed her intention of staying
back and the plaintiff refused the same. There was also nothing
on record that on the said date, father of the plaintiff tried to
abuse the defendant. The allegations made against the father of
the plaintiff are stated in the written statement and thereafter in
the memo of first appellate Court and in the memo of second
appeal, but the defendant has not proved the alleged sexual
advances made by the father-in-law which have been stated in
written statement vide Exh.14.
12. It is required to be noted that in Second Appeal, the scope
is very limited and the Court cannot re-appreciate the evidence.
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In the case of Navaneethammal v. Arjuna Chetty reported in
1996 (6) SCC 177, the Hon'ble Apex Court has observed as
under:-
"11. This Court, time without number,
pointed out that interference with the
concurrent findings of the courts
below by the High Court under
Section 100 CPC must be avoided
unless warranted by compelling
reasons. In any case, the High Court
is not expected to reappreciate the
evidence just to replace the findings of
the lower courts."
13. In the case of Jaichand (Dead) through Lrs and Other v.
Sahnulal and Another reported in 2024 SCC OnLine SC 3864,
the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section
100 CPC, the High Court cannot
interfere with the findings of fact
arrived at by the first Appellate Court
which is the final Court of facts except
in such cases where such findings
were erroneous being contrary to the
mandatory provisions of law, or its
settled position on the basis of the
pronouncement made by the Apex
Court or based upon inadmissible
evidence or without evidence."
14. Under the circumstances, this Second Appeal is devoid of
any substantial question of law. Both the Courts below have
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rightly decided the issue between the parties in the right
perspective and as stated above no substantial question of law
arises in the present appeal. The present appellant has failed to
prove his case before both the Courts below. This Court does
not find any substance in the present Second Appeal as the same
is devoid of any merit both on facts and law and the same is
dismissed at admission stage. Consequently, the connected Civil
Application does not survive and it is disposed of accordingly.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
