The High Court dismissed the wife's appeal against the Family Court's decree of divorce. Upholding the lower court's findings based on medical records and documentary evidence regarding the wife's change of name, the High Court held the appeal was unsustainable.
The appeal was dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
WRIT PETITION NO. 26 OF 2007
Smt. Jyoti w/o Sukhdeo Tumane, aged about 43 years, occupation – Nil, resident of Kharbi Road, Nagpur.
... APPELLANT
Versus
Sukhdeo s/o Ramkrishnaji Tumane, aged about 51 years, occupation - Service, r/o Navi Shukrawari, Near Mutton Market, Nagpur.
... RESPONDENT
Shri R.T. Anthony, Advocate for the appellant. Shri D.M. Kale, Advocate for the respondent.
CORAM : J.P. DEVADHAR AND B.P. DHARMADHIKARI, JJ. DATE OF RESERVING THE ORDER : APRIL 05, 2007. DATE OF PRONOUNCING THE ORDER : APRIL 23, 2007
ORDER :
By this appeal under Section 19 of the Family Courts Act, the appellant – wife has challenged the judgment and decree dated 27.09.2006 delivered by the Family Court No. 4, Nagpur in Petition No.A-395/2004. The said petition came to be filed by present
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respondent – husband under Section 13(1)(1)(1-A) and (II) of Hindu Marriage Act, for a decree of dissolution of marriage on the ground that present appellant had sexual intercourse with some other person apart from him after solemnization of marriage and treated him with cruelty and has ceased to be a Hindu by her conversion to Christianity.
“1. Does the petitioner prove that the respondent had illicit relations with Ankush Pardhi ?
In the negative – The petitioner proved that the respondent had voluntary sexual intercourse with another person other than the petitioner, after the solemnization of the marriage.
In the negative.
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In the negative.
In the affirmative.
Petition is allowed as per order below.”
The Family Court in view of these findings found that the respondent – husband has made out a case for divorce and has accordingly proceeded to dissolve marriage by granting decree of divorce. It also granted respondent – wife before it permanent alimony of Rs.1,500/- per month. It can be mentioned here that the respondent in present appeal i.e. husband has separately filed an appeal challenging said grant before this Court.
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recorded by the Family Court, we have heard Shri Anthony, learned counsel for the appellant – wife and Shri Kale, learned counsel for the respondent – husband finally at the stage of admission itself.
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issue No.1 delivered by Family Court is unsustainable and hence the entire judgment is liable to be quashed and set aside. He has also contended that the alimony amount granted to the appellant is too meager and therefore needs to be enhanced.
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the documents have been produced by independent and impartial authorities and the Family Court has rightly relied upon the same. He, therefore, contends that the judgment of Family Court does not call for any interference in this appeal. He further states that as First Appeal filed by the respondent challenging grant of alimony to present appellant is belated, an application for condoning delay has been moved in it.
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No.22 in September 2004. It also found that there was evidence of Superintendent of Government Medical College and Hospital, Nagpur, about such delivery and treatment given to Jyoti Ankush Pardhi and there was also evidence of two witnesses viz. Asha Madne and Chandrakala Madne about said delivery by present appellant. It has thereafter found that when husband moved application for examining wife medically to find out the delivery of a child on 15.9.2004, the wife refused to get herself medically examined and therefore Family Court has drawn adverse inference against her. In view of this evidence, Family Court has reached a finding that she delivered a female child on 15.9.2004. The finding is based upon evidence of Asha Madne (Exh. 52) and Chandrakala Madne (Exh. 53). These findings are not demonstrated to be perverse by the appellant before us. It further appears that the Superintendent Government Medical College submitted report vide Exh. 57 along with extract from the register and as per those records Jyoti Ankush Pardhi was admitted in hospital on 14.9.2004 in Ward No.22 as per entry No.35040 and she delivered a female child by caesarean operation at 5.32 P.M. on that date. It is, therefore,
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apparent that these documents clearly reveal the delivery of present appellant in the year 2004. Family Court has also considered the stand of present appellant that she had undergone caesarean operation in 1984 and it has been recorded that in medical examination it is possible to find out whether the delivery has taken place recently or long back. This application of mind by Family Court is again not shown to be erroneous to us.
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been produced before Family Court by the respondent – husband along with list of documents and Family Court has found that the appellant – wife had changed her name from Sou. Jyoti Sukhdeo Tumane to Sau. Jyoti Ankush Pardhi. The husband also produced a xerox copy of notice issued to Life Insurance Corporation for change of name and he has also identified her signature on that copy. Family Court also found that in all these documents below the name of wife, address of Shri A.L. Pardhi was mentioned. Summons was also issued to L.I.C. directing them to produce all documents and accordingly along with application on Exh. 83, L.I.C. produced various documents with respect to policy of wife and Family Court has found that these documents also reveal that present appellant changed her name from Jyoti Sukhdeo Tumane to Jyoti Ankush Pardhi and she also changed her address in L.I.C. records. The Family Court has also found that as per Section 14 of Family Courts Act, it can receive as evidence any report, statement, documents, information or matter which in its opinion may assist it effectually with a dispute whether or not the same is otherwise relevant or admissible under the Indian Evidence Act. The consideration of
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documents of L.I.C. by Family Court has not been shown to be either perverse or illegal. Apart from contending that said documents are not proved, the appellant has not pointed out as to why and how Family Court was not justified in invoking Section 14 of Family Court Act for said purpose.
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observed above, this application of mind by Family Court and consideration of evidence has not been demonstrated to be erroneous or perverse by the present appellant.
JUDGE
JUDGE
***********
*GS.
3 issues framed by the court
Whether the Family Court's finding that the appellant delivered a female child on 14.9.2004 was perverse or erroneous given the medical record and refusal of medical examination.
Whether the Family Court was justified in relying on Life Insurance Corporation documents to prove change of name and address.
Whether the present appeal against the divorce decree has any substance.
3 provisions across 2 enactments
Smt. Jyoti w/o Sukhdeo Tumane
Sukhdeo s/o Ramkrishnaji Tumane
J.P. Devidhar
B.P. Dharmadhikari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
