Tuesday, 26 January 2016

Whether Second divorce petition is maintainable after first one was withdrawn?


 In the matter of  N.R. Narayan Swamy vs.
B.   Francis   Jagan  (referred   supra),   the   Hon'ble
Supreme   Court   was   dealing   with   eviction   matter
under   the   Karnataka   Rent   Control   Act,   where
landlord   claimed   eviction   on   the   basis   of   bona
fide requirement. The Hon'ble Supreme Court found
that in the matter of bona fide requirement, there
could   be   recurring   cause   of   action.   In   the   suit
for   eviction   on   the   ground   of   bona   fide
requirement,   even   though   the   premises   remain   the
same, the subject­matter which is cause of action,
may be different. Case of "Sujit Singh" relied on

by   learned   counsel   for   Respondent   can   be
distinguished   as   it   had   different   facts   and
subsequent   matter   was   based   on   same   cause   of
action.   In   the   present   matter,   although   the
foundational   facts   regarding   relationship   of   the
parties   remain   the   same,   the   present   proceedings
could  not be said to be barred  as although  they
refer   initially   to   earlier   incidents,   they   are
based on events which took place subsequent to the
filing of the earlier proceeding which was sought
to   be   withdrawn   in   view   of   the   subsequent
developments. If such view is not taken, it would
mean that once in such matter if the spouse fails
to   establish   cruelty,   subsequently   also   on   the
ground   of   cruelty,   proceeding   would   not   be
entertainable.   When   the   relationship   continues
between   the   couple,   there   could   be   recurring
incidents giving rise to fresh causes of actions
and claim for relief which would be subject­matter
for the subsequent action. 
     IN  THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
 FAMILY COURT APPEAL NO.13 OF 2008
Dr.­X Husband
                                ...APPELLANT
                             (Orig. Petitioner)
       VERSUS             
Dr.­Y Wife   
                                ...RESPONDENT
     
              CORAM:   R.M. BORDE AND
                       A.I.S. CHEEMA, JJ.
  
  DATE OF PRONOUNCING JUDGMENT:21st JANUARY, 2016



1. This Appeal is filed by the Appellant ­
husband an Ophthalmologist  (hereafter referred as
"Petitioner"), whose Petition for divorce against
the   Respondent   ­   wife   B.H.M.S.   ­   practicing

Homeopathy   (hereafter   referred   as   "Respondent")
has been dismissed by the Family Court, Aurangabad
in Petition No.A.263 of 2006. Keeping in view the
nature   of   dispute,   we   have   blocked   the   names   of
the parties in the cause title.
2.      Succinctly put, the marriage  between  the
parties   took   place   on   29th   November   2002.   They
lived together happily for some time and then due
to   disputes,   the   Petitioner   claims   that   the
Respondent deserted him on 30th December 2003. The
Respondent claims that she was beaten and left at
the   place   of   her   parents   on   4th   December   2003.
Petitioner   ­   husband   earlier   filed   Divorce
Petition No.A.46 of 2004 on 3rd February 2004. The
Respondent received summons in that matter on 9th
February 2004. Thereafter few incidents took place
and   the   Respondent   filed   F.I.R.   leading   to
criminal case against the Petitioner and his other
family   members.   The   Petitioner   withdrew   earlier
divorce Petition due to further developments. The

present Petition No.A.263 of 2006 came to be filed
later   on,   on   27th   September   2006,   which   has   now
been dismissed by the Family Court on 27th March
2008. 
3. To   understand   the   disputes   between   the
parties, it is now necessary to refer the facts in
some more details.
EARLIER PETITION NO.A.46 OF 2004
. Exhibit 52 is copy of the earlier
Petition   No.A.46   of   2004.   It   was   divorce
Petition   under   Section   13   of   the   Hindu
Marriage   Act,   1955.   The   Petitioner   claims
that his marriage with Respondent could be
termed   as   self   arranged   marriage.
Engagement took place on 27th October 2002.
The engagement was broken by the parents of
the Respondent on the ground that she was
not   offered   proper   gifts   and   number   of

persons   who   attended   the   function   were
more. As Respondent and her paternal uncle
were   ready   for   marriage,   registered
marriage was performed and religious rites
were   carried   out   at   Ghrishneshwar   Temple,
Ellora   (on   29th   November   2002).   Reception
took place on 8th December 2002, in which
only uncle and aunt of Respondent attended.
In   the   evening,   on   the   day   of   marriage,
the parents and relatives of Respondent had
come to the residence of the Petitioner and
quarreled.   The   marriage   was   happy   for   few
days. Later on Respondent was not behaving
properly   and   insulted   the   Petitioner   in
front of his parents and friends. She used
to   take     suspicion   against   the   Petitioner
if   any   time   he   talked   with   any   girl.   She
suspected   him   with   his   cousin   sister   also
and he was lowered in the eyes of relatives
and   sister.   When   a   female   friend   called
from Bombay, Respondent quarreled with the
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Petitioner and left the house alleging that
Petitioner had relations with that friend.
She was back answering elderly persons and
mother   of   Petitioner.   The   Respondent   was
being   instigated   by   her   parents.   She   had
the   habit   of   disclosing   private   life   to
friends   and   creating   embarrassment.   She
left   house   on   many   occasions   and   the
Petitioner   brought   her   back.   She   did   not
behave properly with friends and relatives
and   avoided   to   perform   religious
ceremonies.   She   had   the   habit   of   leaving
the   gold   ornaments   open   on   bed   and   when
pointed   out,   she   quarreled.   She   quarreled
and   deserted   the   Petitioner   claiming   that
she   will   put   him   behind   the   bars.   She
threatened   to   commit   suicide.   She
consistently   humiliated   him   which   acts
amounted   to   cruelty.   It   had   become
impossible to live with her due to mental
agony and torture.
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. With   such   facts   the   first   Petition
claimed divorce.
WITHDRAWAL OF EARLIER PETITION:
4. The Petitioner filed application (Exhibit
58)   in   the   earlier   Petition   claiming   that   the
Respondent has now filed criminal complaint and he
wanted   to   withdraw   the   Petition   to   file   fresh
divorce   Petition   after   dismissal   of   the   criminal
case and so with permission, liberty may be given.
The Respondent took time to reply but did not file
reply   and   then   the   Judge   of   the   Family   Court,
without   recording   grant   of   permission,   passed
order   dismissing   the   Petition   for   want   of
prosecution.   Against   the   withdrawal,   Respondent
filed Family Court Appeal No.47 of 2004 (Exhibit
59)   in   this   Court   and   the   Appeal   was   dismissed
with clarification that no adverse order has been
passed against the present Respondent, as no leave
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had been granted.
PRESENT PETITION NO.A.263 OF 2006
5. Subsequently the present divorce Petition
No.A.263 of 2006 was filed. In this Petition the
first   twelve   paragraphs   are   similar   to   the
averments   as   made   in   the   earlier   Petition,   to
which   we   have   made   brief   reference   above.   From
Paragraph   No.   13   onwards,   there   is   reference   to
other facts which took place after filing of the
earlier   Petition.   We   proceed   to   refer   to   those
facts in brief, as pleaded by the Petitioner.
. The   Petitioner   has   now   further
claimed that after the earlier Petition was
filed, notice was issued to Respondent and
it was served on her. Thereafter she came
to the Petitioner and gave threats that she
will file false criminal case under Section
498­A   of   the   Indian   Penal   Code   (I.P.C.)
against him and his family members. On 25th
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February 2004 when Petitioner was going on
motorcycle   from   Kranti   Chowk   towards
Paithan Gate, at about 2.00 p.m., in Nutan
Colony, the Respondent stopped him and gave
such threats. She also threatened that she
will commit suicide and implicate  him and
his family members and put them in jail. On
26th February 2004 she came to the clinic
of the Petitioner and in front of patients
abused and threatened him. In view of such
acts   of   Respondent,   the   Petitioner   filed
application   with   Kranti   Chowk   Police
Station   on   27th   February   2004.   On   28th
February 2004 Respondent came in front of
his   clinic   and   asked   him   to   withdraw   the
divorce   Petition   or   else   she   would   file
case   under   Section   498­A   of   I.P.C.   The
Petitioner   informed   this   to   Mukundwadi
Police   Station   vide   N.C.   No.163   of   2004.
The   Respondent   filed   false   complaint
(F.I.R.) on 29th February 2004 making false
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and   vexatious   allegations   against   the
Petitioner,   his   mother,   two   brothers   and
wife   of   one   brother   that   she   was   illtreated,
  assaulted   and   there   was   dowry
demand of Rupees Two Lakhs and Fifteen Tola
gold.   She   claimed   that   she   had   been
assaulted   on   28th   February   2004   in   the
cabin   of   the   Petitioner.   This   led   to
registration   of   offence   at   Jinsi   Police
Station   vide   Crime   No.I­14   of   2004.   The
Petitioner and his family members suffered
great   hardship.   The   Petitioner   and   his
brother Vijay were arrested and thereafter
came   to   be   released   on   bail.   They   were
greatly humiliated. When bail petition came
up, Respondent, although she did not have
injury,   bandaged   her   both   hands   and
appeared before the Court to take sympathy
and   tried   to   get   the   bail   rejected.   She
appeared   in   the   course   of   trial   on   each
date   and   opposed   exemption   applications.
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She   gave   false   evidence   in   the   criminal
case.   (The   Petition   then   mentions   as   to
what   was   allegedly   the   false   evidence.)
Respondent went back from her signature on
application which she had given at the time
of   marriage   to   Jinsi   Police   Station   that
she   had   married   on   her   own   accord.   She
sought various adjournments in the criminal
case and at the stage of arguments even got
the case transferred vide Transfer Petition
No.68 of 2006 making averments against the
Judicial   Officer.   The   Petitioner   and   his
family   members   came   to   be   acquitted.   The
marriage   has   irrevocably   broken   down   and
parties   have   been   residing   separately   for
more than 2 ½   years. Respondent left the
house   on   30th   December   2003   without   any
reason   and   has   been   guilty   of   willful
mental   ill­treatment   and   cruelty   to
Petitioner.   It   is   impossible   for   the
parties   to   live   together   without   mental
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agony,   torture   and     distress.   Thus   the
divorce Petition.   
DEFENCE
6. The   Respondent   filed   Say/Written
Statement vide Exhibit 40. We proceed to refer to
those facts in brief, as pleaded by the Respondent
in the Written Statement:
. It   is   not   disputed   by   the
Respondent   that   engagement   took   place   on
27th   February   2002.   She   claims   that   her
parents spent Rupees Sixty Thousands on the
engagement. The marriage was fixed for 29th
December 2002 but the Petitioner wanted to
finish  up the marriage  ceremony in simple
and   economical   manner.   For   saving   Rupees
Two   Lakhs,   parents   of   Respondent   agreed.
They gave garland of five Tola gold to her
and remaining ten Tola gold was to be given
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within   a   year.   Marriage   took   place   at
Ellora   in   Ghrishneshwar   Temple   in   simple
ceremony.   It   is   denied   that   Petitioner
arranged   reception   on   8th   December   2002.
Her   parents   and   relatives   attended   and
there was no quarrel. She denies that she
was taking suspicion or that she quarreled
on   that   count.   She   claims   that   the   elder
brother   of   Petitioner,   Mr.   Sujay   was
married   unemployed.   Though   he   was   living
separate but used to come for meals twice
in the house of the Petitioner. She claims
that   he   was   "parasite"(?)   in   the   family.
Her father was serving in S.T. Department.
She   has   two   sisters,   one   brother   and
mother.   She   comes   from   religious,   social,
cultural back­ground. She never threatened
Petitioner with case under Section 498­A of
I.P.C. and she is from medical side and not
legal   side.   The   earlier   Petition   was
withdrawn as Petitioner had filed bogus pan
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card and income tax record in the earlier
case   when   pendente   lite   maintenance   was
sought   by   Respondent   and   Respondent   filed
complaint   of   forgery   and   cheating.   The
present Petition is hit by the principle of
'res   judicata'.   When   the   earlier   divorce
Petition   was   filed,   the   Respondent   had
requested   Petitioner   to   withdraw   the
divorce   Petition.   On   the   contrary,
Petitioner   went   to   police   station   as   he
wanted  to swallow  the clinic developed  by
her   from   her   money   of   medical   profession
and  stridhan.   When   she   requested   to
withdraw the Petition, she was beaten when
she was attending  patients  and her thumbs
were fractured by the Petitioner. Although
both   her   thumbs   were   fractured   by   the
Petitioner,   she   did   not   go   to   private
doctor as she did not want to disclose the
deeds   of   her   husband.   She   went   to   Ghati
hospital where police made out Medico Legal
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Case   and   recorded   offence   under   Section
498­A of I.P.C. as the Petitioner ­ husband
had demanded Rupees Two Lakhs  and fifteen
Tola   gold   from   her   parents.   She   claimed
that the Petitioner and his family members
got   acquitted   as   they   managed   the   police
and pressurized police prosecutor. She has
preferred appeal to the High Court.
. In the Written Statement, further
pleas   are   raised   by   the   Respondent.
According   to   her,   it   cannot   be   said   that
the marriage between her and Petitioner was
love   marriage.   She   claims   that   the
Petitioner   and   his   mother   had   approached
the   parents   of   Respondent   and   the
engagement  took place.  Out of oneness  she
was   sending   patients   to   the   Petitioner
thereafter. When the marriage was preponed,
it was agreed that whatever would be saved,
would   be   spent   on   further   development   of
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the   couple.   Her   father   agreed   to   give
fifteen   Tola   gold   after   marriage.   After
simple   ceremony   at   Ellora,   marriage   was
registered. She started living in the three
storeyed   building   at   Seven   Hill   Colony,
belonging   to   the   Petitioner.   Petitioner
insisted   that   she   should   not   practice   in
slum   area   and   should   shift   in   Indu­Ganga
complex where he was practicing. Even prior
to   marriage,   believing   Petitioner,   she
shifted   in   that   complex   and   took   gala   on
rent.   She   took   Rupees   One   Lakh   Sixty
Thousands from the State Bank of Hyderabad
as loan to set up the clinic. She got the
loan   after   engagement   ceremony   had   taken
place.   Petitioner   asked   her   to   shift   her
practice   in   the   same   clinic   where   he   was
practicing. She spent the amount in setting
up both the clinics. Petitioner took Rupees
Seventy   Thousand   from   the   loan   which   was
sanctioned   to   her   and   spent   it   on   his
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family   members.   She   claims   that   Rupees
Ninety Five Thousand were still outstanding
from the said loan amount.  After marriage
she   was   treated   nicely   for   two   months.
Thereafter   her   mother­in­law   Nirmala,
sister­in­law   Pragati   and   brother­in­law
Sujay started claiming that Petitioner was
highly   qualified   and   could   have   got   big
money   as   dowry   and   girl   who   had   M.B.B.S.
degree,   but   he   had   preferred   a   girl   from
hutment. She claims that her mother­in­law
and   sister­in­law   started   quarreling   with
her   that   she   does   not   know   cooking   and
domestic   work.   They   started   instigating
Petitioner who started beating her. She was
beaten on 9 to 11 occasions. Petitioner was
himself taking  her to clinic and dropping
back   out   of  suspicion   that   she  may   go  to
her parents. When she was beaten, he took
her   to   doctors,   namely   Rege,   Sameer
Deshmukh,   Dande,   Rakshale   under   fear   that
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Respondent   should   not   expose   him.   Motherin­law,
  sister­in­law   and   brother­in­law
were   alleging   that   she   had   extra   marital
affair, without naming  any body. When her
father   met   with   an   accident   and   was   in
hospital   for   eight   months,   she   was   never
allowed   to   meet   him.   Her   income   of
Rs.7000/­   to   8,000/­   per   month   was   being
taken   away   by   the   Petitioner.   She   was
brutally beaten on 4th December 2003 for an
hour   and   dropped   at   the   place   of   her
parents,   on   5th   December   2003.   She   was
pregnant of three months at that time. She
developed   complications   and   was   taken   to
Dr.   Mrs.   Mahindrakar.   Doctor   informed   the
Petitioner   but   he   did   not   come.   She   lost
her   child   at   that   time,   due   to   physical,
verbal and economical abuse. Her sister­inlaw
  Pragati,   mother­in­law   Nirmala,
brothers­in­law Vijay and Sujay claim that
she does not know cooking and spends money
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on   beauty   parlour   and   shopping   and   they
don't need her. Petitioner used to be mute
spectator to all this. Even after she was
left at the place of her parents, she was
attending the clinic at Indu­Ganga complex.
She   tried   to   go   back   to   matrimonial   home
but was denied entry and was asked to bring
fifteen   Tola   gold   and   Rupees   Two   Lakhs.
After   separation   she   was   not   able   to
practice   as   when   she   joined   Dr.   Roplekar
and   later   on   Dr.   Jadhav,   she   was   removed
due to Petitioner and her mother­in­law not
liking   her   working.   On     16th   July   2006
there   was   an   advertisement   showing
inauguration   of   big   hospital   by   the
Petitioner   at   Seven   Hills   Colony.   The
hospital is worth  Rupees Three Crores  and
the   Petitioner   is   earning   not   less   than
Rupees   One   Lakh   per   month.   Respondent
claimed   that   she   is   entitled   to   Rupees
Twenty Five Thousand per month as pendente

lite maintenance.
ISSUES   ANE   EVIDENCE   BROUGHT   BEFORE   FAMILY
COURT:
7. With   such   pleadings,   the   Family   Court
framed issues at Exhibit 28. First issue related
to   jurisdiction   to   try   the   case.   Second   issue
related to alleged cruelty. Third issue related to
the   question   whether   the   Respondent   had   deserted
Petitioner without reasonable cause. Fourth issue
related to, whether there was bar under Section 23
of   the   Hindu   Marriage   Act.   Parties   brought   on
record   necessary   evidence.   Petitioner   examined
himself as PW­1 giving evidence on line of above
pleadings. Per contra Respondent led her evidence
on above line of pleadings and to support herself,
examined   RW­2   Nandkumar   Parikh,   handwriting
expert,   as   she   was   claiming   that   the   income   tax
return   tendered   in   the   "earlier"   Petition   was
forged   and   was   also   claiming     that   the   letter
dated 29th November 2002, Exhibit 84, relied on by
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the Petitioner in Criminal Case, as sent by her to
police that the marriage was willful, was forged.
Respondent   examined   RW­3   Ravindra   Sangavikar,
employee from Bank regarding loan she had taken.
(Although   question   of   maintenance   was   not   being
decided ­).  Sub Registrar Saheb Khan was examined
as   RW­4   regarding   value   of   the   property   of   the
Petitioner   at   Seven   Hills   to   claim   that   it   was
worth   more   than   a   Crore   of   Rupees.   RW­5   P.S.I.
Shahabuddin Shaikh has been examined to bring on
record   evidence   that   in   the   police   station
concerned original of Exhibit 84, the letter dated
29th November 2002 was not available and neither
station diary entry was there. RW­6 Satish Purohit
was examined to prove Tipan Exhibit 168 that when
the engagement took place, marriage was initially
scheduled for 27th December 2012. 
8. The Family Court considered the evidence
led   by   the   parties   and   held   that   it   had
jurisdiction to try the case. It however held that
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Petitioner   failed   to   prove   cruelty   by   Respondent
and that he had also failed to prove that she had
deserted him without reasonable cause. The Family
Court observed that question of bar under Section
23   of   the   Hindu   Marriage   Act   does   not   survive.
Family   Court   concluded   that   Petitioner   was   not
entitled for decree of divorce.
ARUGMENTS FOR PETITIONER­APPELLANT:
9. Against   the   Judgment,   present   Family
Court   Appeal   came   to   be   filed   raising   various
grounds.  It is claimed  in the Appeal  and it has
been   argued   by   the   learned   counsel   for   the
Petitioner ­ Appellant that the Family Court did
not   consider   the   evidence   in   proper   perspective.
The   marriage   between   the   parties   was   a   love
marriage which was performed against the wish of
parents of the Respondent. The parents and other
relatives except one uncle of Respondent, did not
attend   the   marriage.   Although   photographs   were
produced, none showed the presence of the parents

or   other   family   members   of   the   Respondent.   The
Respondent   had   herself   filed   the   letter   to   the
police on 29th November 2002 vide Exhibit 84 but
later on has gone back from her signature on the
letter. The Appellant proved on record the conduct
of   the   Respondent,   post   receipt   by   her   of   the
summons in the earlier petition. Petitioner proved
how he was abused and threatened on 26th February
2004 and 28th February 2004 and subsequently false
criminal case was filed. Because of the criminal
case   Petitioner­Appellant   and   his   brother   were
arrested   and   thereafter   released   on   bail.   Other
family   members   had   to   rush   to   file   anticipatory
bail petition, during the course of which hearing,
the   Respondent   appeared   with   bandaged   hands   to
prejudice the Court. It has been argued that the
Respondent   made   all   endeavours   to   put   the
Petitioner and his family members behind bars all
the   while   making   false   allegations.   Although   it
was   pleaded   that   her   thumbs   were   fractured,   in
evidence   she   accepted   that   they   were   not

fractured.   Wild   allegations   were   made   that   the
family members of the Petitioner were asking for
dowry   and   that   Petitioner   would   have   got   girl
having M.B.B.S. The marriage took place with full
knowledge   of   the   back­ground   of   the   Respondent.
Wild allegations of miscarriage were made without
any medical evidence being brought on record. Dr.
Mrs.   Mahindrakar   was   not   examined.   Family   Court
failed to see that the private handwriting expert
examined, had relied only on xerox copies, which
was   inadmissible.   The   Respondent   filed   domestic
violence   case,   which   came   to   be   dismissed.   She
filed frivolous case against the advocates of the
Appellant,   which   also   came   to   be   dismissed.
Although   the   Appellate   Court   had   remanded   the
matter   after   acquittal,   post   impugned   Judgment
the   High   Court   maintained   the   Judgment   of
acquittal and S.L.P. filed by the Respondent came
to be dismissed. Thus, it has been argued that the
cruelty   has   been   proved.   In   present   Appeal,   the
Petitioner   filed   Civil   Application   Nos.   14302   of

2015   and   15183   of   2015   with   copies   of   documents
which   are   Judgments/applications   in   the   various
proceedings   between   the   parties   supported   by   the
affidavits. Some of the Judgments and orders are
relating   to   the   period   before   the   impugned
Judgment while some Judgments and orders have been
rendered   subsequent   to   the   disposal   of   the
impugned matter.  
10. Learned   counsel   for   Respondent   has   not
disputed the correctness of the documents relating
to the Judgments and orders passed or applications
moved.   The   counsel   have   referred   to   the   said
Judgments   and   orders   as   well   as   applications   at
the  time  of arguments  and we are taking  note  of
the subsequent proceedings also. 
ARGUMENTS FOR RESPONDENT:
11. On behalf of the Respondent, the learned
counsel referred to Sub Rules (3) and (4) of Order
XXIII Rule 1 of the Code of Civil Procedure, 1908

(C.P.C.) to argue that if the earlier Petition was
withdrawn without taking permission referred to in
Sub   Rule   (3),   the   Petitioner   would   be   precluded
from instituting any fresh suit in respect of the
subject matter or part of the claim. It is argued
that the earlier Petition was for divorce on the
ground of cruelty and present Petition is also for
divorce on the ground of cruelty. As the earlier
Petition   was   withdrawn   without   taking   permission
of the Court and which order has been clarified by
the High Court in the earlier Appeal, the present
Petition   was   barred.   Learned   counsel   agreed   that
the observation of the trial Court in Para 50 of
its Judgment that the present Petition was hit by
the   principles   of   'res   judicata'   was   not
maintainable, as earlier Petition was not decided
on merits,  but according to him the bar is under
Order   XXIII   Rule   1   of   the   C.P.C.,   which   is
applicable.   It   is   argued   by   the   Respondent   that
due   to   withdrawal   of   the   earlier   matter,   the
Respondent was unable to prove her defence which

she   was   to   take   in   the   earlier   Petition.   The
grounds raised for divorce are general and vague.
The   Respondent   denied   in   her   written   statement
that   she   was   suspecting   cousin   sister   of   the
Petitioner.   According   to   the   learned   counsel,
there   was   no   evidence   that   the   Respondent   was
guilty   of   ill­treatment   and   desertion.   (The
counsel   took   us   through   the   evidence.)   It   is
claimed   that   in   the   earlier   proceedings,   the
documents filed of income tax return and Exhibit
84, letter claimed to be filed by the Respondent
to police, were forged and so handwriting expert
was   examined.   The   counsel   submitted   that   the
Respondent   is   ready   to   go   and   reside   with   the
husband and the husband is not ready to take her
back and thus divorce should not be granted. Lapse
of   time   is   no   reason   to   grant   divorce.
Irretrievable breakdown of marriage is no ground.
Only because the Petitioner was acquitted in the
criminal proceedings, would not go to prove that
the   Respondent   inflicted   cruelty.   The   first

divorce   petition   was   filed   within   fifteen   months
of the marriage, which showed that the husband was
not interested in maintaining the marriage.
IN REPLY:
12. The learned counsel for the Petitioner in
reply submitted that when in the earlier Petition
the   Petitioner   had   filed   application   for
withdrawal   with   permission   to   institute   fresh
proceedings,   if   the   permission   was   not   being
granted, what Court could have done was to refuse
the permission but the Court could not have simply
disposed   the   Petition   as   withdrawn.   He   however,
did not press for this argument, as according to
him, the matter had been, at that time, carried to
the High Court and in Appeal High Court recorded
opinion   and   so   that   order   has   become   final.   The
learned   counsel   submitted   that   in   the   present
Petition,   the   Petitioner   is   not   relying   on   the
earlier events which were agitated in the earlier
Petition,   but   is   relying   on   the   incidents   which

took place subsequent to the filing of the earlier
Petition   and   present   Petition   is   based   on   those
subsequent   facts   which   according   to   learned
counsel   are   not   barred   under   Order   XXIII   of   the
C.P.C.   According   to   the   learned   counsel   the
earlier Petition was based on facts till the date
of   filing   of   the   earlier   Petition,   which   facts
themselves   constituted   cause   of   action.   The
present Petition cannot be said to be based on the
same   subject   matter   as   in   the   present   Petition,
the set of facts relied on are different and cause
of   action   is   also   different.   According   to   the
counsel,   subsequent   to   filing   of   the   earlier
Petition,   the   Respondent   reacted   inappropriately
and further, the Petitioner and his family members
were dragged into criminal cases and they were got
arrested   and   harassed   making   wild   allegations
against the character of the husband and criminal
acts were attributed, because of which the present
Petition   was   required   to   be   filed.   It   is   argued
that it would be unimaginable to hold that once a

divorce petition on the ground of cruelty has been
withdrawn further divorce petition cannot be filed
even   if   there   are   subsequent   events   showing
cruelty. The counsel submitted that the record and
proceedings   of   Family   Court   show   that   the
Respondent   resorted   to   raising   various
obstructions   to   the   Petitioner   by   filing   various
criminal   cases   and   even   in   the   present   Petition
irrelevant evidence was brought like that of the
valuer   although   question   of   maintenance   was   not
being decided and in cross­examination there were
multiple   repetitions.   Although   the   Respondent
claims not to be a person of law, she carried out
extensive cross­examination of the Petitioner, inperson,
  on   9th   July   2007,   10th   July   2007,   21st
July   2007   and   12th   October   2007.   She   has   legal
acumen  and is not a lay  person  and the evidence
has   not   been   properly   appreciated   by   the   Family
Court.
13. It   is   submitted   by   the   learned   counsel

for   the   Petitioner   that   in   the   record   of   the
Family   Court   at   Page   No.98,   there   is   copy   of
complaint dated 4th September 2007 which discloses
that   Respondent   filed   complaint   to   the   Police
Commissioner   against   Head   Constable   Adhane
claiming that he had given false evidence in the
criminal   case.   The   Criminal   Court   accepted   the
evidence   of   Adhane   and   acquitted   the   Petitioner
and   his   family   members   and   thus   such   complaint
could   not   have   been   maintained.   The   counsel   for
Petitioner further submitted that Respondent filed
application Exhibit 12 in the Petition before the
Family   Court   claiming   domestic   violence   and   even
secured some orders in her favour on 11th January
2007. Subsequently she filed Criminal M.A. No.130
of   2008   under   Domestic   Violence   Act   before   the
J.M.F.C.   on   4th   February   2008   and   thereafter   on
10th   March   2008   withdrew   the   application   under
Section 26 of the Domestic Violence Act which she
had filed before the Family Court. This Criminal
M.A. No.130 of 2008 containing similar allegations

as made before the Family Court, has also come to
be dismissed by 19th Court of J.M.F.C., Aurangabad
on 31st December 2012. 
14. Before proceeding to discuss the facts of
the   matter,   quick   reference   may   be   made   to   the
Judgments   relied   on   by   the   learned   counsel   for
both sides to support their averments.
RULINGS:
15. The   learned   counsel   for   the   Petitioner
has   placed   reliance   on   the   following   reported
cases:
(A)  Learned counsel for the Petitioner relied on
the   case   of  X   husband   vs.   Y   wife,   reported   in
2014(4)   Bom.C.R.   168  to   submit   that   this   Court
had, in that matter, taken note of how the wife in
that   matter   also   had   subjected   the   husband   to
various   criminal   proceedings   in   a   bitter   legal
battle   and   this   Court   had   held   that   filing   of

false criminal cases against a spouse is itself an
act of cruelty and can very well sustain a decree
of divorce.
(B)  The Petitioner further relied on the case of
Vishwanath   Agrawal   s/o   Sitaram   agrawal   vs.   Sarla
Vishwanath   Agrawal,   reported   in   (2012)   7   Supreme
Court   Cases   288,   where   also   the   husband   was
dragged   into   criminal   cases   and   Hon'ble   Supreme
Court observed in Para 50, that subsequent events
can   be   considered.   The   Hon'ble   Supreme   Court
observed in Para 47 as below:
“47. Another aspect needs to be taken note of.
The respondent   had made allegation about the
demand of dowry. RCC No. 133/95 was instituted
under   Section   498­A   of   the   Indian   Penal   Code
against   the   husband,   father­in­law   and   other
relatives.   They   have   been   acquitted   in   that
case.   The   said   decision   of   acquittal   has   not
been assailed before the higher forum. Hence,
the allegation on this count was incorrect and
untruthful and it can unhesitatingly be stated
that such an act creates mental trauma in the

mind   of   the   husband   as   no   one   would   like   to
face   a   criminal   proceeding   of   this   nature   on
baseless and untruthful allegations.” 
. In   Para   54   and   55   of   the   Judgment,   the
Hon'ble Supreme Court observed as follows: 
“54. Regard being had to the aforesaid, we have
to   evaluate   the   instances.   In   our   considered
opinion,   a   normal   reasonable   man   is   bound   to
feel   the   sting   and   the   pungency.   The   conduct
and   circumstances   make   it   graphically   clear
that the respondent­wife had really humiliated
him   and   caused   mental   cruelty.   Her   conduct
clearly   exposits   that   it   has   resulted   in
causing   agony   and  anguish   in  the   mind  of   the
husband. She had publicised  in the newspapers
that he was a womaniser and a drunkard. She had
made wild allegations about his character. She
had made an effort to prosecute him in criminal
litigations which she had failed to prove. The
feeling of deep anguish, disappointment, agony
and frustration of the husband is obvious.
55.   It  can   be  stated   with   certitude   that   the
cumulative   effect   of   the   evidence   brought   on
record clearly establishes a sustained attitude
of   causing   humiliation   and   calculated   torture

on the part of the wife to make the life of the
husband miserable. The husband felt humiliated
both in private and public  life. Indubitably,
it   created   a  dent   in  his   reputation   which   is
not only the salt of life, but also the purest
treasure and the most precious perfume of life.
It is extremely delicate and a cherished value
this   side   of   the   grave.   It   is   a   revenue
generator  for   the  present   as  well   as  for   the
posterity. Thus analysed, it would not be out
of place to state that his brain and the bones
must   have   felt   the   chill   of   humiliation.   The
dreams   sweetly   grafted   with   sanguine   fondness
with the passage of time reached the Everstine
disaster, possibly, with a vow not to melt. The
cathartic effect looked like a distant mirage.
The cruel behaviour of the wife has frozen the
emotions and snuffed out the bright candle of
feeling   of   the   husband   because   he   has   been
treated as an unperson. Thus, analysed, it is
abundantly   clear   that   with   this   mental   pain,
agony   and   suffering,   the   husband   cannot   be
asked to put up with the conduct of the wife
and to continue to live with her. Therefore, he
is entitled to a decree for divorce.”
(C). The counsel for Petitioner relied on the
case   of  Seth   Ramdayal   Jat   vs.   Laxmi   Prasad,

reported in AIR 2009 S.C. 2463 to submit that the
Judgment in a criminal case is admissible to prove
conviction or acquittal. Learned counsel submitted
that   Judgment   in   this   matter   shows   that   when   in
the civil matter admission is given regarding what
was stated in the criminal case, the same would be
admissible.   According   to   the   learned   counsel,   in
the   present   matter   the   Respondent   wife   admitted
that   in   criminal   case   she   had   admitted   her
signature on letter Exhibit 84 which was sent to
police on 29th November 2002, but she still backed
out   from   the   signature   in   the   civil   proceedings
and   even   led   evidence   of   handwriting   expert   to
prove that it was not her signature. The counsel
submitted   that   her   admitting   signature   in   the
criminal   case   was   proved   and   was   required   to   be
considered.
(D) The   learned   counsel   for   the   Petitioner
relied on the case of Malathi Ravi, M.D. vs. B.V.
Ravi,   M.D.,   reported   in   (2014)   7   Supreme   Court

Cases 640 to submit that even in the case brought
on   the   ground   of   desertion,   by   taking   into
consideration subsequent events, divorce could be
granted   on   the   ground   of   cruelty.   The   Hon'ble
Supreme   Court   referred   to   various   incidents   of
that matter and observed in Para 43 as under:
"43.  As we have enumerated the incidents,
we are disposed to think that the husband has
reasons  to feel  that  he has  been  humiliated,
for   allegations   have   been   made   against   him
which are not correct; his relatives have been
dragged into the matrimonial controversy, the
assertions in the written statement depict him
as   if   he   had   tacitly   conceded   to   have
harboured   notions   of   gender   insensitivity   or
some kind of male chauvinism, his parents and
he are ignored in the naming ceremony of the
son,   and   he   comes   to   learn   from   others   that
the wife had gone to Gulbarga to prosecute her
studies. That apart, the communications, after
the decree for restitution of conjugal rights,
indicate the attitude of the wife as if she is
playing   a   game   of   chess.   The   launching   of
criminal prosecution can be perceived from the
spectrum   of   conduct.   The   learned   Magistrate
has   recorded   the   judgment   of   acquittal.   The

wife  had preferred  an appeal  before  the  High
Court   after   obtaining   leave.   After   the   State
Government  prefers  an appeal  in the  Court  of
Session,   she   chooses   to   withdraw   the   appeal.
But she intends, as the pleadings would show,
that   the   case   should   reach   the   logical
conclusion. This conduct manifestly shows the
widening  of the  rift  between  the parties.  It
has  only  increased  the bitterness.  In such a
situation, the husband is likely to lament in
every breath and the vibrancy of life melts to
give way to sad story of life."
. The learned counsel submitted that facts
of   the   present   matter   are   similar   and   require
drawing of conclusion of cruelty and divorce needs
to be granted. It is stated, as was done by the
Hon'ble   Supreme   Court   in   the   above   referred
matter, this Court is competent to grant divorce
and   even   pass   order   granting   permanent   alimony
under Section 25 of the Hindu Marriage Act, 1955,
taking note of the status of the parties.
(E). The   further   reliance   was   placed   on   the

case of  K. Srinivas Rao vs. D.A. Deepa, reported
in (2013) 5 Supreme Court Cases, 226. In Para 28
of   the   Judgment,   the   Hon'ble   Supreme   Court
observed as under:
"28.   Pursuant   to   this   complaint,   the   police
registered a case under Section 498­A IPC. The
appellant husband and his parents had to apply
for   anticipatory   bail,   which   was   granted   to
them. Later, the respondent wife withdrew the
complaint.   Pursuant   to   the   withdrawal,   the
police filed a closure report. Thereafter, the
respondent wife filed a protest petition. The
trial   Court   took   cognizance   of   the   case
against the appellant husband and his parents
(CC No.62 of 2002). What is pertinent to note
is   that   the   respondent   wife   filed   criminal
appeal   in   the   High   Court   challenging   the
acquittal   of   the   appellant   husband   and   his
parents   of   the   offences   under   the   Dowry
Prohibition Act and also the acquittal of his
parents   of   the   offence   punishable   under
Section 498­A IPC. She filed criminal revision
seeking enhancement  of the punishment  awarded
to the appellant husband for the offence under
Section 498­A IPC in the High Court which is
still pending. When the criminal appeal filed

by   the   appellant   husband   challenging   his
conviction for the offence under Section 498­A
IPC   was   allowed   and   he   was   acquitted,   the
respondent   wife   filed   criminal   appeal   in   the
High   Court   challenging   the   said   acquittal.
During   this   period   the   respondent   wife   and
members   of   her   family   have   also   filed
complaints in the High Court complaining about
the   appellant   husband   so   that   he   would   be
removed   from   the   job.   The   conduct   of   the
respondent wife   in filing a complaint making
unfounded,   indecent   and   defamatory   allegation
against her mother­in­law, in filing revision
seeking enhancement of the sentence awarded to
the   appellant   husband,   in   filing     appeal
questioning   the   acquittal   of   the   appellant
husband and acquittal of his parents indicates
that she made all attempts to ensure that he
and   his   parents   are   put   in   jail   and   he   is
removed   from   his   job.   We   have   no   manner   of
doubt   that   this   conduct   has   caused   mental
cruelty to the appellant husband."
(F). Learned counsel for the Petitioner relied
on   the   case   of  Naveen   Kohli   vs.   Neelu   Kohli,
reported   in   (2006)   4   Supreme   Court   Cases   558,
which was followed by the Hon'ble Supreme Court in

the matter of Samar Ghosh vs. Jaya Ghosh, reported
in   (2007)   4   Supreme   Court   Cases,   511  also,   to
submit   that   there   was   no   uniform   standard   laid
down   for   guidance   as   to   what   amounts   to   mental
cruelty, but still the Hon'ble Supreme Court  has
referred to some of the instances in Para 101 of
the   Judgment   of  Samar   Ghosh,   cited   supra.
Referring   to   the   instances,   the   learned   counsel
submitted that in the present matter also the wife
can be held responsible for inflicting cruelty to
her husband.
(G) As   regards   the   objections   raised   under
Order XXIII Rule 1 of C.P.C., the learned counsel
for Petitioner relied on the case of  Vallabh Das
vs.   Dr.   Madan   Lal   and   others,   1970(1)   Supreme
Court Cases 761. 
16. This   Judgment   was   followed   by   Hon'ble
Supreme Court in the matter of N.R. Narayan Swamy
vs. B. Francis Jagan, reported in (2001) 6 Supreme

Court   Cases   473.  The   Hon'ble   Supreme   Court
observed in Para 10 as under:
“10.   The   aforesaid   rule   would   have   no
application   in   a   proceeding   initiated   for
recovering the suit premises on the ground of
bona   fide   requirement   which   is   a   recurring
cause.   Order   23   Rule   1(4)(b)   precludes   the
plaintiff   from   instituting   any   fresh   suit   in
respect of such subject matter or such part of
the   claim   which   the   plaintiff   has   withdrawn.
In a suit for eviction of a tenant under the
Rent   Act  on   the   ground   of   bona   fide
requirement   even   though   the   premises   remain
the   same,   the   subject   matter   which   is   the
cause  of action  may  be different.  The ground
for eviction in the subsequent proceedings is
based upon requirement on the date of the said
suit   even   though   it   relates   to   the   same
property.   Dealing   with   similar   contention   in
Vallabh Das v. Dr. Madanlal and Others [(1970)
1 SCC 761)], this Court observed thus: 
“The   expression   'subject­matter'   is   not
defined  in the Civil  Procedure  Code.  It does
not   mean   property.   That   expression   has   a
reference to a right in the property which the
plaintiff   seeks   to   enforce.   That   expression
includes   the   cause   of   action   and   the   relief

claimed.   Unless   the   cause   of   action   and   the
relief claimed in the second suit are the same
as in the first suit, it cannot be said that
the  subject­matter  of the second  suit is the
same as that in the previous suit.”
17. Learned counsel for the Respondent placed
reliance on the following Reported Cases:
(A) The   learned   counsel   for   the   Respondent
relied   on   the   case   of  Surjit   Kaur   vs.   Jhujhar
Singh, reported in 1978 CJ (P&H) 286, where Order
XXIII   Rule   1   of   C.P.C.   was   invoked   to   bar   the
second Petition as it was on same cause of action.
(B). The learned counsel for Respondent relied
on   the   case   of  Darshan   Gupta   vs.   Radhika   Gupta,
reported   in   AIR   2013   S.C.   (Supp)   85,   to   submit
that ground of irretrievable breakdown of marriage
is not available to husband when he is responsible
for the conditions. The counsel submitted that the
Hon'ble Supreme Court has, observed in Para 35 of

that   Judgment   that   perusal   of   grounds   on   which
divorce can be sought under Section 13(1) of Hindu
Marriage Act, 1955 would reveal  that the same are
grounds based on the 'fault' of the party against
whom dissolution of marriage is sought. The party
seeking divorce should be innocent. It is argued
that   in   the   present   matter   the   husband   is   not
innocent.
(C) The learned counsel for Respondent relied
on   the   case   of  Vishnu   Dutt   Sharma   vs.   Manju
Sharma,   reported   in   AIR   2009   S.C.   2254(1)  and
submitted   that   ground   of   irretrievable   breakdown
of marriage  is not available as carving out such
ground would amount to legislating.
POINTS FOR CONSIDERATION:
18. Considering the various pleadings of the
parties,   the   evidence   and   arguments   raised,   the
Points for Determination are:

(1)   Whether   the   present   Petition   for
divorce   based   on   incidents   occurring
subsequent   to   the   earlier   Petition   is
maintainable?
(2) Whether the Petitioner has proved that
the Respondent has, after solemnization of
the   marriage,   treated   the   Petitioner   with
cruelty   and   he   is   entitled   to   decree   of
divorce?
WHETHER PRESENT PETITION WAS MAINTAINABLE:
19. As regards first Point for Determination,
reference may be made to Order XXIII Rule 1 SubRule
  (3)   and   (4)   of   C.P.C.   The   Rule   deals   with
withdrawal   of   suit   or   abandonment   of   part   of
claim.   The   Sub­Rules   (3)   and   (4)   of   Rule   1   of
Order XXIII of C.P.C. read as follows:­
"(3) Where the Court is satisfied,­

(a)   that   a   suit   must   fail   by   reason   of   some
formal defect, or
(b)   that   there   are   sufficient   grounds   for
allowing   the   plaintiff   to   institute   a   fresh
suit for the subject­matter of a suit or part
of a claim,
it may, on such terms as it thinks fit, grant
the plaintiff permission to withdraw from such
suit or such part of the claim with liberty to
institute   a   fresh   suit   in   respect   of   the
subject­matter of such suit or such part of the
claim.  
(4) Where the plaintiff­
(a)  abandons   any  suit  or  part  of  claim  under
sub­rule (1), or
(b) withdraws from a suit or part of a   claim
without  the  permission  referred  to  in      subrule
(3),
he shall be liable for such costs as the Court
may   award   and   shall   be   precluded   from
instituting any fresh suit in respect of such
subject­matter or such part of the claim."

. It   is   clear   from   reading   of   the   above
that   if   the   plaintiff   withdraws   from   the   suit
without   taking   permission,   he   would   be   precluded
from   instituting   any   fresh   suit   'in   respect   of
such   subject­matter   or   such   part   of   the   claim'.
The   Hon'ble   Supreme   Court   in   the   matter   of
Vallabh   Das   vs.   Dr.   Madan   Lal,  (referred   supra)
has   observed   that   expression   "subject­matter"
includes   the   cause   of   action   and   the   relief
claimed. In the matter of  N.R. Narayan Swamy vs.
B.   Francis   Jagan  (referred   supra),   the   Hon'ble
Supreme   Court   was   dealing   with   eviction   matter
under   the   Karnataka   Rent   Control   Act,   where
landlord   claimed   eviction   on   the   basis   of   bona
fide requirement. The Hon'ble Supreme Court found
that in the matter of bona fide requirement, there
could   be   recurring   cause   of   action.   In   the   suit
for   eviction   on   the   ground   of   bona   fide
requirement,   even   though   the   premises   remain   the
same, the subject­matter which is cause of action,
may be different. Case of "Sujit Singh" relied on

by   learned   counsel   for   Respondent   can   be
distinguished   as   it   had   different   facts   and
subsequent   matter   was   based   on   same   cause   of
action.   In   the   present   matter,   although   the
foundational   facts   regarding   relationship   of   the
parties   remain   the   same,   the   present   proceedings
could  not be said to be barred  as although  they
refer   initially   to   earlier   incidents,   they   are
based on events which took place subsequent to the
filing of the earlier proceeding which was sought
to   be   withdrawn   in   view   of   the   subsequent
developments. If such view is not taken, it would
mean that once in such matter if the spouse fails
to   establish   cruelty,   subsequently   also   on   the
ground   of   cruelty,   proceeding   would   not   be
entertainable.   When   the   relationship   continues
between   the   couple,   there   could   be   recurring
incidents giving rise to fresh causes of actions
and claim for relief which would be subject­matter
for the subsequent action. For such reasons, we do
not find that the present Petition is barred. We

would   ignore   the   claims   of   the   Petitioner   with
reference to the incidents claimed by him in the
earlier   Petition   as   constituting   cause   of   action
for the earlier Petition. Order XXIII Sub Rule (4)
of  Rule 1 of C.P.C. precludes the plaintiff from
instituting   any   fresh   suit   in   respect   of   the
subject­matter,   however,   it   does   not   bar   the
earlier defendant or respondent from agitating the
instances provided they are relevant in subsequent
petition.   In   the   present   matter   although   now
objection   under   Order   XXIII   of   C.P.C.   has   been
raised, the Respondent has raised various disputes
in evidence with reference to what were instances
claimed by the Petitioner in earlier Petition. As
the present Petition is now being dealt with and
decided   on   the   basis   of   subsequent   events,   the
reference to the evidence of the Respondent with
regard to earlier instances can be referred only
where   and   if   relevant   to   decide   present   subject
matter   or   for   appreciation   of   evidence   if   the
witness is reliable.  

CRUELTY:
20. Coming   to   the   second   Point   for
Determination, there is evidence of the Petitioner
claiming   that   notice   of   the   earlier   divorce
Petition   No.A.46   of   2004   was   served   on   the
Respondent. Exhibit 53 shows that the summons of
that   proceeding   was   served   on   the   Respondent   on
9th February 2004. As per the Petitioner, when she
received   notice,   she   threatened   the   Petitioner
with   false   prosecution   under   Section   498­A   of
I.P.C. against him and his family members. He has
deposed   that   on   25th   February   2004   when   he   was
travelling   on   motorcycle   from   Kranti   Chowk   to
Paithan Gate, at about 2.00 p.m. in Nutan Colony
Respondent   stopped   him   and   threatened   him   with
complaint under Section 498­A of I.P.C. He claims
that she threatened that she will commit suicide
and implicate him and his family members and put
them   in   jail.   His   evidence   is   that   on   26th
February   2004   also   Respondent   visited   his   clinic

and in front of patients abused him and threatened
him. Regarding this incident, he sent application
to   Kranti   Chowk   Police   Station   on   27th   February
2004. The Petitioner further deposed that on 28th
February 2004, in the morning, Respondent came in
front   of   the   clinic   asking   him   to   withdraw   the
divorce   petition   and   gave   threats   of   complaint
under   Section   498­A   of   I.P.C.   if   he   will   not
withdraw   the   Petition.   Petitioner   claims   that   he
informed   the   police   about   this   incident   also   on
28th February 2004 which was recorded as N.C. No.
163 of 2004. Document in this regard is at Exhibit
95.
. According   to   the   Petitioner,   Respondent
filed   false   F.I.R.   dated   29th   February   2004
alleging   that   he   and   his   family   members   illtreated
  her, assaulted her, demanded Rupees Two
Lakhs and fifteen Tola gold and went to the extent
of alleging assault on her on 28th February 2004.
This   led   to   offence   being   registered   at   Jinsi

Police   Station   and   he   and   his   brother   Vijay   got
arrested and thereafter were released on bail. It
is deposed that at the time of bail proceedings,
Respondent, although she did not have any injury,
appeared with both hands bandaged, to get sympathy
of the Court. The evidence further shows as to how
in   the   criminal   case   the   Respondent   appointed
Advocate and brought about criminal cases and led
false   evidence   causing   great   humiliation   and
mental   agony.   It   is   claimed   that   relations   have
deteriorated to such an extent that now it is not
possible to live with Respondent. 
21. The Respondent extensively cross examined
the   Petitioner   and   brought   on   record   various
documents   relating   to   the   criminal   cases.   The
Petitioner,   in   cross­examination,   gave   certain
admissions (relating to incidents which were basis
of earlier petition) while denying allegations of
ill­treatment   by   him   or   that   he   or   his   family
members   had   demanded   dowry   or   beaten   the
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Respondent.
RESPONDEDNT NOT RELIABLE:
22. The   Respondent   filed   affidavit   as
examination­in­chief   and   reiterated   what   she   had
claimed   in   her   say/written   statement,   which   we
have discussed above. We need not repeat the same.
She   has   also   been   cross­examined   and   her   crossexamination
reveals certain facts which show that
she is not reliable witness. We will briefly refer
to those instances:
(a). In   evidence   the   Respondent   has
tried   to   show   that   after   separating   from
the Petitioner she, having qualification of
BAMS, has tried to practice, for which she
joined the office of one Dr. Roplekar and
one   Dr.   Jadhav   (   Para   36   and   37   of   her
examination­in­chief). She claimed that she
could not continue due to the pressure from
the   mother   of   Petitioner.   Thus,   she   has
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tried to show that the Petitioner and his
family   are   making   her   life   miserable.   In
cross­examination,   however,   she   accepted
that her own sister, with whom she had got
good   relations,   herself   has   a   clinic   at
Kartiki   Hotel   (Para   2   of   the   crossexamination).
  She   denied   that   she   was
practicing with her sister.
(b)     In   pleadings   and   in   evidence
Respondent   claims   that   the   Petitioner
husband   took   away   part   of   the   amount   of
loan which she had taken from the Bank for
her clinic. However, her cross­examination,
Para   9   shows   that   she   had   submitted
quotations   to   the   Bank   to   get   the   loan
released. Her evidence ( Cross ­ Para 29)
shows that initially she accepted that she
received   cheque   from   Bank   of   Rupees   Ten
Thousand   in   the   name   of   M/s.   Vijay   and
sons, but in further cross­examination she
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conveniently   pleaded   loss   of   memory   with
regard   to   various   specific   cheque   amounts
pointed out by the cross examiner, given to
Shantiram   Glasses,   Kaushaldeep,   Usha
Electrics and System and Store.
(c). Respondent raised much hue and cry
regarding   the   pleading   of   the   Petitioner
that   theirs   was   a   self   arranged   or   love
marriage.   She   went   to   the   extent   of   even
denying   application   dated   29th   November
2002   (Exhibit   84)  given  to   police   station
on   the   date   of   marriage   that   she   had
married   by   her   own   will   and   complaint   of
her parents or relatives may not be given
cognizance. She has even led evidence of a
handwriting expert, RW­2 Nandkumar to claim
that the signature on Exhibit 84 was not of
hers, although in the criminal case bearing
RCC No.414 of 2004, evidence came on record
of Head Constable Shaikhnath Adhane that on
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29th November 2002 he was given original of
this   document   (marked   Exhibit   78   in   the
criminal case) for inquiry and that he had
gone   to   the   house   of   the   Petitioner   and
also given understanding to the parents of
the   Respondent.   Against   this,   the   crossexamination
  of   the   Respondent,   Para   10,
shows   her   admitting   that   one   year   before
the marriage she had gone to the clinic of
the Petitioner to extend Diwali greetings.
Although   the   Respondent   claims   that   the
marriage   was   with  consent   of  her   parents,
no evidence worth the name was brought on
record   by   her.   In   the   photographs   of
marriage, brought on record, her parents or
other relatives are not shown. According to
Petitioner   only   one   uncle   of   hers   had
attended   the   marriage.   Even   the   marriage
certificate   Exhibit   137   has   signatures   of
witnesses on her behalf as those advocates
who   were   friends   of   the   Petitioner,   not
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known to Respondent since before. Although
denied   in   Written   Statement,   Respondent
admitted   (in   Para   17   of   her   crossexamination)
  that   the   marriage   reception
dated 8th December 2002 was arranged by the
Petitioner.
(d). Respondent claimed (in Para 18 of
cross­examination)   that   she   was   not   sent
for   Makar   Sankrant.   However,   the   evidence
further   showed   that   she   accepted   that
everything   was   all   right   for   two   months
after the marriage. Marriage took place on
29th November 2002. As such Makar Sankrant
would   be   in   the   middle   of   January   2003.
Inspite of this she wanted to insist that
she was not sent for Makar Sankrant.
(e). Respondent   wanted   to   attribute
misconduct to the Petitioner and his family
claiming that she was not allowed to go to
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meet   her   father   when   he   met   with   an
accident.   However,   evidence   has   come   on
record that she had indeed been going out
and had gone and met her father.
(f). Respondent   claimed   physical
assault on her on 28th February 2004 seen
by   compounder   Vishnu   (Para   53   of
examination­in­chief). She claimed that the
incident took place at 12.30 p.m. Still she
went   to   Ghati   Hospital   only   at   5   ­   5.30
p.m. and that too to Dr. Vikhe, husband of
her friend Anupama (Para 19 of her crossexamination).
  She   tried   to   show   that   she
did   not   go   to   private   doctor   in   order   to
save name of the family but still she goes
to   husband   of   her   friend   in   Government
hospital and then has tried to show that it
was   beyond   her   control   that   it   became   a
police case. Although she claimed assault,
the   spot   was   in   the   clinic   which   was   in
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crowded   area   (Para   19   of   her   crossexamination)
  and   still   she  had   no  witness
in   her   support.   In   criminal   case   and   in
this   Petition   also   there   is   no
corroboration to her claims of having been
beaten more than 9­10 times.
(g). In   written   statement   Para   14   and
the   evidence   Para   15   Respondent   claimed
that   in   the   incident   dated   28th   February
2004   she   was   so   assaulted   that   her   both
thumbs   of   the   hands   were   fractured.
However,   in   cross­examination   Para   20   she
admitted that she did not have fracture to
the thumbs of both the hands. In evidence
she claimed that she had tendon injury to
her thumbs. Even this is not supported by
medical   evidence.   Para   27   of   her   crossexamination
shows that she admitted that at
the   time   of   anticipatory   bail   of   the
relatives   of   the   Petitioner,   she   was
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present   in   Court   and   filed   photographs
showing   bandage   to   both   of   her   hands.   Of
course, she immediately retracted from this
admission also.
(h). Although   Respondent   denied   her
signature   on   Exhibit   84,   the   application
dated   29th   November   2002   filed   to   police
station   about   willful   marriage,   the
Respondent   was   confronted   (in   Para   25   of
the   cross­examination)   with   her   admission
in the criminal case where she admitted her
signature on the document. She deposed that
she had admitted her signature in the case
under Section 498­A of I.P.C. Then she has
added   that   it   was   under   pressure   of
Advocate Ghanekar representing the accused.
(i). In   Para   27   of   her   crossexamination,
Respondent accepted that there
was   no   dispute   at   the   time   of   betrothal
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ceremony about what is to be given. We have
already   mentioned   that   the   subsequent
reception was arranged by the Petitioner is
admitted fact. The marriage admittedly took
place in a temple followed by registration
before the Marriage Registrar vide Exhibit
137 and a letter to police vide Exhibit 84.
Inspite   of  this,   the   Respondent   has  tried
to   depose   that   the   Petitioner   and   his
family members were subsequently harassing
her   for  dowry.   Evidence  rather   shows   that
after   the   betrothal   the   family   of
Respondent   was   not   willing   but   Petitioner
went ahead with support of his family and
friends   as   Respondent   herself   was   willing
and   they   got   married.   Petitioner   and   his
family knew that father of Respondent was a
humble   Class   IV   employee   and   she   was
B.A.M.S.   and   her   younger   sisters   and
brother   were   still   studying.   Still   they
went ahead with the marriage as Respondent
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was   willing.   A  family   interested   in  dowry
would not have done that.
(j). Although   the   Respondent   claimed
that   when   she   was   cohabiting   with   the
Petitioner,   she   was   seriously   beaten   on
more than 8­9 occasions, no single piece of
evidence   was   brought   on   record   either   in
the   form   of   medical   certificates   or   the
evidence   of   any   other   doctor   to   whom
Respondent claims that she was taken by the
Petitioner.
(k). Respondent   denied   (in   Para   27   of
cross­examination)   that   she   had   engaged
Advocate Nanasaheb Jagtap in Criminal Case
No.414   of   2004   as   Advocate   to   assist   the
prosecutor.   However,   in   subsequent   crossexamination
  (Para   33)   when   she   was
confronted with the Vakalatnama Exhibit 132
and other documents, she had to admit that
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she   did   engage   Advocate   Jagtap   in   the
criminal case.
(l). Respondent   claimed   (in   Para   3   of
her examination­in­chief) that marriage was
preponed and so her father gave five Tola
gold and had agreed to give ten Tola gold
within a year. Inspite of this, she has led
evidence   to   claim   that   her   in­laws   were
troubling   her   for   fifteen   Tola   gold   and
Rupees   Two   Lakhs.   No   such   assertion   was
made   against   the   in­laws   in   the   F.I.R.
(Exhibit   86)   which   she   had   filed   on   29th
February   2004.   In   the   F.I.R.   this   was
attributed only to the husband. 
(m). Respondent   has   claimed   that   when
she was assaulted and left at the place of
her   parents,   she   was   pregnant   by   three
months and because of the assault she was
taken to Dr. Mrs. Mahindrakar and although
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doctor informed the Petitioner, he did not
come and she lost the child. Although such
serious allegations have been made, neither
Dr.   Mrs.   Mahindrakar   was   examined  nor   any
other  medical   evidence   is  brought  to   show
that indeed the Respondent was pregnant and
that she suffered miscarriage.     
IMPUGNED JUDGMENT NOT MAINTAINABLE:
23. We have gone through the evidence of the
Petitioner as well as Respondent. The Family Court
discussed   the   evidence   and   while   discussing   the
evidence   of   the   Petitioner,   referred   to   the
admissions given by the Petitioner to observe that
the admissions shattered his evidence, But, while
referring   to   the   Respondent,   Family   Court
definitely concluded (in Para 66 of Judgment) that
she has given false testimony to some extent. The
observations of the Family Court show (in Para 40
of   the   Judgment)   that   this   is   not   a   case   of
physical   cruelty.   As   regards   mental   cruelty,   in
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Para 45 of the Judgment the Family Court assumed
that as father of Respondent was Class IV employee
and Petitioner claimed that it was love marriage,
mother   and   brother   of   the   Petitioner   must   have
tortured   Respondent.   We   find   that   there   was
regular   betrothal   ceremony   in   the   present   matter
and it appears that between the betrothal ceremony
and   marriage   something   happened   due   to   which
Petitioner   and   Respondent   went   ahead   with   their
marriage inspite of opposition from the parents of
the   Respondent.   The   Petitioner   who   was   doctor,
knew the fact of father of Respondent being Class
IV   employee.   As   such   no   such   conclusions   could
have been drawn by the Family Court on the basis
of assumptions and presumptions. The Family Court
(in   Para   45   of   the   Judgment)   found   that   the
Respondent   had   failed   to   examine   any   doctor   to
prove   assault.   In   Para   46   of   the   Judgment   the
Family Court justified the filing of criminal case
under   Section   498­A   of   I.P.C.   on   the   reasoning
that it was the Petitioner who first filed divorce
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petition.   We   do   not   agree   with   such   reasoning.
Only   because   the   husband   had   filed   divorce
petition, would be no licence for the wife to file
criminal   cases   making   wild   allegations   which   she
is unable to prove.
. The Family Court wanted the Petitioner to
prove   negative.   The   Respondent   has   claimed   that
she   was   beaten   in   the   clinic.   The   Family   Court
observed   that   the   Petitioner   claims   that
Respondent   was   not   beaten   and   on   that   count   her
thumbs   were   not   swollen,   then   he   should   have
examined   the   compounder   Vishnu.   This   was   placing
burden   on   the   Petitioner   to   disprove   what   the
Respondent was asserting, without her bringing on
record   the   necessary   evidence.   The   Family   Court
burdened   its   Judgment,   in   Para   76   and   77,   by
unnecessarily resorting to philosophy with regard
to   the   importance   of   child.   In   fact,   the   Family
Court,   in   the   course   of   recording   evidence,   has
allowed   to   be   brought   on   record   lot   of   evidence
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which   was   not   really   relevant   for   deciding   the
issues which had been framed. It was like trying
to   prove   the   criminal   case   in   the   civil
proceedings. We find that the impugned Judgment is
not maintainable.  
THE CRIMINAL AND OTHER CASES FILED:
24. It is not in dispute that the Respondent
had filed F.I.R. Exhibit 86 leading to filing of
Regular Criminal Case No.414 of 2004. If Exhibit
86   is   perused,   after   the   introductory   part,   she
alleged that she was treated well for two months
after   the   marriage   and   then   her   sister­in­law
Pragati   and   mother­in­law   Nirmala   started
grumbling   that   the   Petitioner   would   have   got
Rupees ten to fifteen Lakhs as dowry and girl who
was   M.B.B.S.   but   had   married   to   a   girl   from
hutment.   It   was   alleged   that   listening   to   them,
the   Petitioner,   after   three   months   of   marriage,
started giving her trouble and started beating her
claiming that she does not know household work or
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cooking.   She   claimed   that   on   8­9   occasions   the
Petitioner had beaten her, and her brothers­in­law
Sujay   and   Vijay   were   poisoning   the   ears   of   her
husband   and   asking   him   to   beat   her.   She   claimed
that on 4th December 2003 she was beaten and left
at   the   place   of   her   parents.   She   claimed   that
whenever she wanted to go to her parents, she was
not   being   allowed   to   go   and   her   mother­in­law,
brother­in­law   were   suspecting   that   she   has   some
love affair and so they were not letting her   go
out.   In   the   F.I.R.   it   is   further   alleged   that
although she was left at the place of her parents,
she   continued   to   attend   the   clinic   with   her
husband and in January 2004 she received summons
from Family Court. On 28th February 2004 she went
to the hospital at Thakre Nagar, at which time the
Petitioner   had   slapped   her   in   the   cabin   and
twisted   her   thumbs   of   both   hands   and   threatened
that  if she  wanted  to stay with  him,  she should
get   Rupees   Two   Lakhs   and   fifteen   Tola   gold   from
her  parents  or else  he will  not  let  her  parents
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live. 
25. On   the   basis   of   above   F.I.R.,   Regular
Criminal Case No.414 of 2004 was filed against the
Petitioner and his family members. We have already
discussed evidence that the Petitioner and one of
his brother were arrested and later on released on
bail,   while   other   family   members   succeeded   in
getting   anticipatory   bail,   at   which   time   the
Respondent   appeared   in   the   Court   with   bandaged
hands.   The   J.M.F.C.   11th   Court,   Aurangabad,   vide
Judgment   dated   5th   July   2006   acquitted   the
Petitioner   and   his   family   members   observing   (in
Para   22)   that   the   complaint   had   been   made   with
intention   to   take   revenge   or   pressurize   the
accused   No.1   (Petitioner   herein)   to   withdraw   the
divorce petition. Against this Judgment, the State
had   filed   Criminal   Appeal   No.111   of   2006   to   the
First   Additional   Sessions   Judge,   Aurangabad,   who
had remanded the matter on the basis that separate
charge   under   Section   323   of   I.P.C.   should   have
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been framed. In Criminal Revision No.188 of 2007
filed   by   the   Petitioner   and   his   other   family
members to the High Court, the Judgment of remand
was   set   aside   and   learned   Single   Judge   of   this
Court   upheld   the   Judgment   of   the   J.M.F.C.   on
merits.   Respondent   appears   to   have   gone   against
the Judgment of the High Court in Special Leave to
Appeal   (Criminal)   No.807   of   2009   to   the   Hon'ble
Supreme   Court,   which   dismissed   the   same   on   19th
July   2010.   The   Judgment   of   the   High   Court   and
orders of the Hon'ble Supreme Court are subsequent
to   the   passing   of   the   present   impugned   Judgment
dated 27th March 2008. Copies of Judgments are on
record.   These   are   subsequent   developments,   which
facts   are   undisputed.   It   goes   to   show   that   the
allegations made by the Respondent in the criminal
case   were   not   proved.   Apart   from   the   criminal
case,   we   have   already   discussed   the   evidence   in
the   present   petition   where   the   Respondent   has
failed to show that she was at any time physically
assaulted. We have also found her to be unreliable
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as a witness.
26. During   pendency   of  Petition   No.A.263   of
2006 in Family Court, Respondent filed application
Exhibit   12   under   Section   26   of   the   Domestic
Violence   Act   on   1st   December   2006   and   it   was
partly   allowed   on   11th   January   2007.   She   then
filed Criminal M.A. No.130 of 2008 before J.M.F.C.
on   4th   February   2008   and   withdrew   Exhibit   12   in
Family   Court   on   10th   March   2008.   In   these
applications   she   was   raising   similar   allegations
against   Petitioner   and   his   family.   Criminal   M.A.
No.130  of 2008 has also  came  to be dismissed  by
J.M.F.C. on 31st December 2012.
27. Apart from the above criminal case No.414
of 2004 ending up in acquittal, which has become
final, record shows that Respondent filed Regular
Criminal   Case   No.958   of   2009   on   1st   June   2009
before   Chief   Judicial   Magistrate,   Aurangabad
against   not   merely   the   Petitioner   but   also   his
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Advocates   who   were   signatories   to   the   marriage
certificate as well as Advocate Ghanekar who was
defending the Petitioner in the criminal case and
also   Head   Constable   Adhane   who   gave   evidence   in
the criminal case to prove application Exhibit 84
dated 29th November 2002. She arrayed all of them
in   the   criminal   case   seeking   prosecution   under
Sections   469   and   471   of   I.P.C.   The   C.J.M.   found
the complaint to be time barred and also referred
to Section 195 of the Code of Criminal Procedure
(Cr.P.C.)   that   cognizance   could   not   be   taken   by
other Court except on the complaint in writing of
the Court before whom the offence was alleged to
have   been   committed.   It   shows   that   Respondent
wants   to   intimidate   whoever   may   stand   for
Petitioner.   Roping   in   his   defence   Advocate   as
accused,   seriously   reflects   against   Respondent.
Not satisfied with the Judgment of the C.J.M., the
Respondent   filed   Criminal   Revision   No.19   of   2002
before   the   Additional   Sessions   Judge,   Aurangabad
and   the   dismissal   of   the   complaint   filed   by   the

Respondent has been maintained. It is quite clear
reading   Section   195   with   Section   340   of   Cr.P.C.
that   when   the   offence   is   alleged   to   have   been
committed in or in relation to the proceedings in
the   Court,   the   complaint   by   the   concerned   Court
would be necessary. Ignoring these provisions, in
the   present   matter   the   Family   Court   has   allowed
evidence   to   be   led   to   show   that   the   income   tax
return   filed   in   the   earlier   petition   was   forged
and that Exhibit 84 did not bear signature of the
Respondent which was filed in the earlier criminal
case.   The   Family   Court   concluded   that   these
documents   were   forged   (Para   60   to   62   of   the
Judgment)   accepting   the   evidence   of   the
handwriting   expert,   although   the   handwriting
expert   had   admitted   that   the   analysis   he   had
carried   out   was   on   the   basis   of   xerox   copies
(rather   ­   photocopies)   which   the   Respondent   had
provided   to   him.   Thus,   in   law   or   even   on
appreciation of evidence, the findings recorded by
the   Family   Court   on   this   count   cannot   be

maintained. 
28. In line with the other on­slaught of the
Respondent against the Petitioner, is the Regular
Civil Suit No.713 of 2009 filed by the Respondent
against Petitioner claiming that he intends to go
for another marriage and he should be restrained.
The   suit   has   been   dismissed   by   18th   Joint   Civil
Judge,   Junior   Division,   Aurangabad   on   22nd
November 2012.
29. With   Civil   Application   No.15183   of   2015
the Petitioner has brought on record copy of the
application   which   Respondent   gave   to   Women   and
Child Welfare Officer on 12th December 2007. There
also similar allegations as in the present matter,
were made by the Respondent. She added in prayer
(B)   that   the   present   Petitioner   should   be
restrained   from   letting   other   women   come   to   the
building Sonai, Seven Hills, other than his mother
and two sisters and no such other woman should be

allowed to stay there as paying guest or tenant or
to come as friend.
. Clearly,   Respondent   was   making
allegations   against   the   character   of   the
Petitioner   although   in   the   written   statement   she
filed, she claimed that she was not suspecting the
character   of   the   husband.   Such   psyche   of
groundless,   unsupported   doubts   by   one   spouse   as
seen in present matter (of seeking to keep out all
women   (other   than   mother   and   sisters)   from   the
house and baseless suit to restrain husband from
re­marrying)   cast   aspersions   on   character   of   the
other spouse amounting to cruelty.
30. Considering   the   observations   of   the
Hon'ble Supreme Court in various matters, referred
above, where wild allegations are made in criminal
cases   one   after   the   other,   we   find   that   in   the
present   case   also   the   Respondent   indulged   in
various conducts once she received summons in the

earlier   divorce   Petition   No.A.46   of   2004,   which
were   in   the   nature   of   subjecting   the   Petitioner
and his family members to humiliation. She appears
to have resorted to all means to ensure that the
Petitioner or his family members do not get bail
and should remain in jail. She made allegations of
dowry   demand   and   assault,   which   have   not   been
proved. Considering the allegations in the F.I.R.
and even those made to the Women and Child Welfare
Officers,   as   well   as   allegations   made   to   the
J.M.F.C. in Domestic Violence case, the acts were
in the nature of inflicting mental cruelty to the
Petitioner and his family members. The Petitioner
and one of his brother had to undergo the agony of
getting   arrested   and   later   on   being   released   on
bail.   Brother   of   Petitioner   admittedly   living
separate   has   been   called   a   "parasite"   by
Respondent   in   this   Petition   and   was   dragged   in
criminal   case.   They   had   to   face   the   criminal
prosecution, which appears to have been motivated.
The Family Court brushed aside the impact of such

actions of Respondent only because the mother of
Petitioner did not lose her job or the brother of
Petitioner could still contest municipal election
or the Petitioner put up hospital in already owned
family   house.   When   the   family   is   facing   such
criminal prosecution, and they had to face arrest
and   the   wife   is   making   allegations   against   the
character   of   the   husband,   mental   cruelty   is
clearly established.
31. Considering   evidence   of   the   parties,   we
find Petitioner reliable when he deposed that due
to conduct of Respondent deserting him, he filed
earlier   Petition   reacting   to   which   Respondent
misbehaved with him in public at Nutan Colony on
25th February 2004 and again on 26th February 2004
and 28th February 2004 and then subjected him and
his family to further cruelty by lining up false
cases against him and his family.
32. A parting reference can be made to recent

Judgment of the Hon'ble the Supreme Court in the
matter   of   K.   Srinivas   vs.   K.   Sunita,   (2014)   16
Supreme   Court   Cases,   34,   where   it   was   observed
that:
"It   is   now   beyond   cavil   that   if   a   false
criminal   complaint   is   preferred   by   either
spouse   it   would   invariably   and   indubitably
constitute  matrimonial cruelty, such as would
entitle the other spouse to claim a divorce."
CRUELTY PROVED:
33. We   find   substance   in   the   arguments   of
learned Senior Counsel for Petitioner. The Rulings
relied on by learned counsel for Respondent were
on different facts and we are unable to agree with
his   submissions   made.   For   reasons   discussed,   we
find   that   the   Petitioner   has   proved   that   the
Respondent   has,   after   the   solemnization   of   the
marriage,   treated   the   Petitioner   with   cruelty
under     Section   13(1)(i­a)   of   the   Hindu   Marriage
Act, 1955. There are no grounds to attract Section

23 of the Hindu Marriage Act and the Petitioner is
entitled to decree of divorce.
PERMANENT ALIMONY:
34. Learned counsel for the Petitioner fairly
stated   that   if   this   Court   considers   granting   of
divorce,   any   amount   may   be   fixed   as   permanent
alimony   under   Section   25   of   the   Hindu   Marriage
Act. In the record of the trial Court at Exhibit
157   there   is   assessment­sheet   of   the   house   at
Seven   Hills,   Aurangabad   belonging   to   the
Petitioner   and   his   family   showing   the   value   as
Rs.1,07,41,500/­   (Rupees   One   Crore   Seven   Lakhs
Forty   One   Thousand   Five   Hundred).   The   property
card at Exhibit 45 shows that apart from mother of
Petitioner his two brothers are also co­owners in
the property which they have inherited from their
father. In the cross­examination of the Petitioner
(Para 1) the Respondent brought on record the fact
that   his   mother   is   assistant   teacher   in   grant
aided school. His father was no more at the time

of   their   marriage.   Earlier,   his   father   had   been
head master in private education institution. The
above   property   came   in   the   family   in   view   of
efforts of his father. One of the brother of the
Petitioner appears to be worker of some political
party and other brother Vijay was in service. The
Petitioner appears to have set up his hospital in
part of the property and is also having clinic at
Indu­Ganga   complex.   Thus   with   humble   beginnings
the   family   was   just   coming   up.   Respondent
similarly   has   started   with   humble   beginnings   and
the sisters and brothers with education have come
up. There was suggestion put by Respondent herself
in the cross­examination of the Petitioner at Para
No.19,   that   when   they   were   together,   she   was
earning   Rs.   10,000/­   to   Rs.12,000/­   per   month,
which   suggestion   has   been   accepted   by   the
Petitioner. The position that emerges is that in
the ancestral house, there are four co­sharers and
the Petitioner is a doctor, while Respondent also
is a doctor. Keeping in view this capacity of both

the   parties,   and   the   sources   available   to   the
Petitioner   and   the   responsibility   as   husband   to
assist   the   wife   in   settling,   it   would   be
reasonable to direct the Petitioner to deposit an
amount   of   Rs.25,00,000/­   (Rupees   Twenty   Five
Lakhs)   in   the   Family   Court   as   permanent   alimony
payable to the Respondent.
35. For the reasons afore stated, we pass the
following order:
                O R D E R
(I)   The   Family   Court   Appeal   is   allowed.
Impugned Judgment and Order are quashed and
set   aside.    Petition   No.A.263   of   2006   is
allowed.
(II) The marriage dated 29th November 2002
between   the   Appellant­Petitioner   and
Respondent is hereby dissolved by decree of
divorce   under   Section   13(1)(i­a)   of   the
Hindu Marriage Act, 1955.

(III)   The   Appellant   is   directed   to   pay
permanent alimony of Rs.25,00,000/­ (Rupees
Twenty Five Lakhs) under Section 25 of the
Hindu Marriage Act, 1955 to the Respondent.
The amount shall be deposited in the Family
Court within a period of THREE MONTHS from
the date of this Judgment and order.
(IV)   No order as to costs.
(V)  Decree be drawn accordingly.
[A.I.S. CHEEMA, J.]                  [R.M. BORDE, J.]

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