Allowed

Ajay Devidasrao Sambare v. Vaishali Ajay Sambare

Bombay HC21 Jan 2016FCA/13/2008

Case brief

AI extract

What is this about?

Husband's divorce petition was dismissed by the Family Court on grounds of cruelty and desertion. In appeal, the High Court held the second petition maintainable despite withdrawal of the earlier one, found the wife's false criminal complaints, dowry allegations and baseless proceedings against the husband and his family to be mental cruelty, and granted divorce with permanent alimony.

What did the court decide?

Impugned judgment set aside; Petition No.A.263 of 2006 allowed; marriage dissolved by decree of divorce under Section 13(1)(i-a); Rs.25,00,000 permanent alimony under Section 25 to be deposited in the

Ajay Devidasrao Sambare Vs Vaishali Ajay Sambare — Dowry and Cruelty | Bombay HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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 FAMILY COURT APPEAL NO.13 OF 2008

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Dr.-X Husband

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...APPELLANT
 (Orig. Petitioner)

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 VERSUS

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Dr.-Y Wife

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...RESPONDENT

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...

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 Mr. P.M. Shah, Senior Counsel with Mr. Amol
 N. Kakade Advocate for Appellant-Husband.
 Mr. V.D. Sapkal Advocate for Respondent-Wife.

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...

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CORAM: R.M. BORDE AND

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 A.I.S. CHEEMA, JJ.

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 DATE OF RESERVING JUDGMENT :9th DECEMBER, 2015
 DATE OF PRONOUNCING JUDGMENT:21st JANUARY, 2016

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JUDGMENT [PER A.I.S. CHEEMA, J.] :

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1.This Appeal is filed by the Appellant -
husband an Ophthalmologist (hereafter referred as
"Petitioner"), whose Petition for divorce against

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the Respondent - wife B.H.M.S. - practicing

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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.

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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

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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

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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.

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3.To understand the disputes between the

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parties, it is now necessary to refer the facts in
some more details.

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EARLIER PETITION NO.A.46 OF 2004

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.Exhibit 52 is copy of the earlier

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Petition No.A.46 of 2004. It was divorce

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Petition under Section 13 of the Hindu
Marriage Act, 1955. The Petitioner claims

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that his marriage with Respondent could be
termed as self arranged marriage.
Engagement took place on 27th October 2002.

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The engagement was broken by the parents of

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the Respondent on the ground that she was
not offered proper gifts and number of

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persons who attended the function were

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more. As Respondent and her paternal uncle

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were ready for marriage, registered
marriage was performed and religious rites

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were carried out at Ghrishneshwar Temple,

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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,

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the parents and relatives of Respondent had

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come to the residence of the Petitioner and
quarreled. The marriage was happy for few

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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

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suspected him with his cousin sister also
and he was lowered in the eyes of relatives

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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.

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She was back answering elderly persons and
mother of Petitioner. The Respondent was
being instigated by her parents. She had

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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
andavoidedtoperformreligious
ceremonies. She had the habit of leaving

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the gold ornaments open on bed and when
pointed out, she quarreled. She quarreled
and deserted the Petitioner claiming that

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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

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claimed divorce.

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WITHDRAWAL OF EARLIER PETITION :

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4.The Petitioner filed application (Exhibit

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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

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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

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filed Family Court Appeal No.47 of 2004 (Exhibit
59) in this Court and the Appeal was dismissed

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with clarification that no adverse order has been
passed against the present Respondent, as no leave

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had been granted.

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PRESENT PETITION NO.A.263 OF 2006

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5.Subsequently the present divorce Petition

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No.A.263 of 2006 was filed. In this Petition the

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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.

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.The Petitioner has now further

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claimed that after the earlier Petition was

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filed, notice was issued to Respondent and

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it was served on her. Thereafter she came

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to the Petitioner and gave threats that she

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will file false criminal case under Section

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498-A 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

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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

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divorce Petition or else she would file
case under Section 498-A of I.P.C. The
Petitioner informed this to Mukundwadi
Police Station vide N.C. No.163 of 2004.

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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 ill-
treated, 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.I-14 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

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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

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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

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the case transferred vide Transfer Petition

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No.68 of 2006 making averments against the
Judicial Officer. The Petitioner and his

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family members came to be acquitted. The
marriage has irrevocably broken down and
parties have been residing separately for

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more than 2 ½ years. Respondent left the
house on 30th December 2003 without any

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reason and has been guilty of willful
mental ill-treatment and cruelty to

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Petitioner. It is impossible for the
parties to live together without mental

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agony, torture and distress. Thus the
divorce Petition.

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DEFENCE

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6. The Respondent filed Say/Written

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Statement vide Exhibit 40. We proceed to refer to
those facts in brief, as pleaded by the Respondent
in the Written Statement:

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Respondent that engagement took place on

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27th February 2002. She claims that her

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parents spent Rupees Sixty Thousands on the
engagement. The marriage was fixed for 29th

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December 2002 but the Petitioner wanted to

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finish up the marriage ceremony in simple
and economical manner. For saving Rupees

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Two Lakhs, parents of Respondent agreed.
They gave garland of five Tola gold to her

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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

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ceremony. It is denied that Petitioner
arranged reception on 8th December 2002.
Her parents and relatives attended and

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there was no quarrel. She denies that she
was taking suspicion or that she quarreled
on that count. She claims that the elder

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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

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that he was "parasite"(?) in the family.
Her father was serving in S.T. Department.
She has two sisters, one brother and

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mother. She comes from religious, social,
cultural back-ground. She never threatened

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Petitioner with case under Section 498-A of
I.P.C. and she is from medical side and not

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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

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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

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'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

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wanted to swallow the clinic developed by
her from her money of medical profession

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and stridhan . When she requested to withdraw the Petition, she was beaten when

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she was attending patients and her thumbs

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were fractured by the Petitioner. Although

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both her thumbs were fractured by the

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Petitioner, she did not go to private
doctor as she did not want to disclose the

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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
498-A of I.P.C. as the Petitioner - husband

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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.

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.In the Written Statement, further

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pleas are raised by the Respondent.
According to her, it cannot be said that

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the marriage between her and Petitioner was
love marriage. She claims that the
Petitioner and his mother had approached

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the parents of Respondent and the
engagement took place. Out of oneness she

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was sending patients to the Petitioner
thereafter. When the marriage was preponed,

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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

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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 Indu-Ganga
complex where he was practicing. Even prior

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to marriage, believing Petitioner, she

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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

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place. Petitioner asked her to shift her
practice in the same clinic where he was

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practicing. She spent the amount in setting
up both the clinics. Petitioner took Rupees

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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

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from the said loan amount. After marriage

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she was treated nicely for two months.
Thereafter her mother-in-law Nirmala,
sister-in-law Pragati and brother-in-law
Sujay started claiming that Petitioner was
highly qualified and could have got big
money as dowry and girl who had M.B.B.S.

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degree, but he had preferred a girl from

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hutment. She claims that her mother-in-law
and sister-in-law started quarreling with

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her that she does not know cooking and
domestic work. They started instigating
Petitioner who started beating her. She was

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beaten on 9 to 11 occasions. Petitioner was
himself taking her to clinic and dropping

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back out of suspicion that she may go to
her parents. When she was beaten, he took

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her to doctors, namely Rege, Sameer
Deshmukh, Dande, Rakshale under fear that

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Respondent should not expose him. Mother-
in-law, sister-in-law and brother-in-law

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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

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hour and dropped at the place of her

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parents, on 5th December 2003. She was

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pregnant of three months at that time. She
developed complications and was taken to
Dr. Mrs. Mahindrakar. Doctor informed the

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Petitioner but he did not come. She lost
her child at that time, due to physical,
verbal and economical abuse. Her sister-in-
lawPragati,mother-in-lawNirmala,
brothers-in-law 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

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spectator to all this. Even after she was
left at the place of her parents, she was
attending the clinic at Indu-Ganga complex.

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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 mother-in-law not

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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

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lite maintenance.

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ISSUES ANE EVIDENCE BROUGHT BEFORE FAMILY

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COURT :

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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

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the question whether the Respondent had deserted
Petitioner without reasonable cause. Fourth issue
related to, whether there was bar under Section 23

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of the Hindu Marriage Act. Parties brought on
record necessary evidence. Petitioner examined
himself as PW-1 giving evidence on line of above
pleadings. Per contra Respondent led her evidence
on above line of pleadings and to support herself,
examined RW-2 Nandkumar Parikh, handwriting
expert, as she was claiming that the income tax

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return tendered in the "earlier" Petition was

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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 RW-3 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 RW-4 regarding value of the property of the
Petitioner at Seven Hills to claim that it was
worth more than a Crore of Rupees. RW-5 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. RW-6 Satish Purohit
was examined to prove Tipan Exhibit 168 that when
the engagement took place, marriage was initially
scheduled for 27th December 2012.

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8.The Family Court considered the evidence

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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.

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ARUGMENTS FOR PETITIONER-APPELLANT :

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9.Against the Judgment, present Family

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Court Appeal came to be filed raising various

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grounds. It is claimed in the Appeal and it has

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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

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marriage which was performed against the wish of
parents of the Respondent. The parents and other
relatives except one uncle of Respondent, did not

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attend the marriage. Although photographs were
produced, none showed the presence of the parents

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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

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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 Petitioner-Appellant 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

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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 back-ground of the Respondent.

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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

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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

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cruelty has been proved. In present Appeal, the
Petitioner filed Civil Application Nos. 14302 of

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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.

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10.Learned counsel for Respondent has not

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disputed the correctness of the documents relating
to the Judgments and orders passed or applications

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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.

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ARGUMENTS FOR RESPONDENT:

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11.On behalf of the Respondent, the learned

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counsel referred to Sub Rules (3) and (4) of Order
XXIII Rule 1 of the Code of Civil Procedure, 1908

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(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

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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

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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

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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

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due to withdrawal of the earlier matter, the
Respondent was unable to prove her defence which

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she was to take in the earlier Petition. The

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grounds raised for divorce are general and vague.

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The Respondent denied in her written statement
that she was suspecting cousin sister of the
Petitioner. According to the learned counsel,

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there was no evidence that the Respondent was
guilty of ill-treatment and desertion. (The
counsel took us through the evidence.) It is
claimed that in the earlier proceedings, the

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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

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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

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back and thus divorce should not be granted. Lapse

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of time is no reason to grant divorce.
Irretrievable breakdown of marriage is no ground.

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Only because the Petitioner was acquitted in the

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criminal proceedings, would not go to prove that
the Respondent inflicted cruelty. The first

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divorce petition was filed within fifteen months
of the marriage, which showed that the husband was
not interested in maintaining the marriage.

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IN REPLY :

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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

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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

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earlier events which were agitated in the earlier
Petition, but is relying on the incidents which

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took place subsequent to the filing of the earlier
Petition and present Petition is based on those

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subsequent facts which according to learned
counsel are not barred under Order XXIII of the

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C.P.C. According to the learned counsel the

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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

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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

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counsel, subsequent to filing of the earlier
Petition, the Respondent reacted inappropriately
and further, the Petitioner and his family members

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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

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Petition was required to be filed. It is argued
that it would be unimaginable to hold that once a

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divorce petition on the ground of cruelty has been
withdrawn further divorce petition cannot be filed

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even if there are subsequent events showing
cruelty. The counsel submitted that the record and
proceedings of Family Court show that the
Respondentresortedtoraisingvarious
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 cross-examination there were
multiple repetitions. Although the Respondent
claims not to be a person of law, she carried out
extensive cross-examination of the Petitioner, in-
person, 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.

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13.It is submitted by the learned counsel

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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

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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

¶268

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

¶269

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

¶270

had filed before the Family Court. This Criminal
M.A. No.130 of 2008 containing similar allegations

¶271

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¶272

¶273

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.

¶274

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.

¶275

RULINGS :

¶276

15.The learned counsel for the Petitioner

¶277

has placed reliance on the following reported
cases:

¶278

(A) Learned counsel for the Petitioner relied on

¶279

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

¶280

that matter also had subjected the husband to
various criminal proceedings in a bitter legal
battle and this Court had held that filing of

¶281

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¶282

¶283

false criminal cases against a spouse is itself an
act of cruelty and can very well sustain a decree
of divorce.

¶284

(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:

¶285

“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 498-A of the Indian Penal Code
against the husband, father-in-law 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

¶286

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¶287

¶288

mind of the husband as no one would like to
face a criminal proceeding of this nature on
baseless and untruthful allegations.”

¶289

.In Para 54 and 55 of the Judgment, the

¶290

Hon'ble Supreme Court observed as follows:

¶291

“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 respondent-wife 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.

¶292

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

¶293

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¶294

¶295

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.”

¶296

(C).The counsel for Petitioner relied on the

¶297

case of Seth Ramdayal Jat vs. Laxmi Prasad,

¶298

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¶299

¶300

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.

¶301

(D)The learned counsel for the Petitioner

¶302

relied on the case of Malathi Ravi, M.D. vs. B.V.
Ravi, M.D., reported in (2014) 7 Supreme Court

¶303

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¶304

¶305

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:

¶306

"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

¶307

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¶308

¶309

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."

¶310

.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.

¶311

(E).The further reliance was placed on the

¶312

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¶313

¶314

case of K. Srinivas Rao vs. D.A. Deepa, reported

¶315

in (2013) 5 Supreme Court Cases, 226. In Para 28
of the Judgment, the Hon'ble Supreme Court
observed as under:

¶316

"28. Pursuant to this complaint, the police
registered a case under Section 498-A 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 498-A IPC. She filed criminal revision
seeking enhancement of the punishment awarded
to the appellant husband for the offence under
Section 498-A IPC in the High Court which is
still pending. When the criminal appeal filed

¶317

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¶318

¶319

by the appellant husband challenging his
conviction for the offence under Section 498-A
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 mother-in-law, 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."

¶320

(F).Learned counsel for the Petitioner relied
on the case of Naveen Kohli vs. Neelu Kohli,

¶321

reported in (2006) 4 Supreme Court Cases 558,
which was followed by the Hon'ble Supreme Court in

¶322

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¶323

¶324

the matter of Samar Ghosh vs. Jaya Ghosh, reported

¶325

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 ofSamar 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.

¶326

(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.

¶327

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

¶328

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¶329

¶330

Court Cases 473.The Hon'ble Supreme Court

¶331

observed in Para 10 as under:

¶332

“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:

¶333

“The expression 'subject-matter' 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

¶334

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¶335

¶336

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 subject-matter of the second suit is the
same as that in the previous suit.”

¶337

17.Learned counsel for the Respondent placed
reliance on the following Reported Cases:

¶338

(A)The learned counsel for the Respondent

¶339

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.

¶340

(B).The learned counsel for Respondent relied

¶341

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

¶342

for the conditions. The counsel submitted that the

¶343

Hon'ble Supreme Court has, observed in Para 35 of

¶344

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¶345

¶346

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.

¶347

(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.

¶348

POINTS FOR CONSIDERATION :

¶349

18.Considering the various pleadings of the
parties, the evidence and arguments raised, the
Points for Determination are:

¶350

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¶351

¶352

(1) Whether the present Petition for
divorce based on incidents occurring
subsequent to the earlier Petition is
maintainable?

¶353

(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?

¶354

WHETHER PRESENT PETITION WAS MAINTAINABLE :

¶355

19.As regards first Point for Determination,
reference may be made to Order XXIII Rule 1 Sub-
Rule (3) and (4) of C.P.C. The Rule deals with
withdrawal of suit or abandonment of part of
claim. The Sub-Rules (3) and (4) of Rule 1 of
Order XXIII of C.P.C. read as follows:-

¶356

"(3) Where the Court is satisfied,-

¶357

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¶358

¶359

(a) that a suit must fail by reason of some
formal defect, or

¶360

(b) that there are sufficient grounds for
allowing the plaintiff to institute a fresh
suit for the subject-matter of a suit or part
of a claim,

¶361

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
subject-matter of such suit or such part of the
claim.

¶362

(4) Where the plaintiff-

¶363

(a) abandons any suit or part of claim under
sub-rule (1), or

¶364

(b) withdraws from a suit or part of a claim
without the permission referred to in sub-
rule (3),

¶365

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
subject-matter or such part of the claim."

¶366

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¶367

¶368

.It is clear from reading of the above

¶369

that if the plaintiff withdraws from the suit
without taking permission, he would be precluded
from instituting any fresh suit 'in respect of
such subject-matter 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 "subject-matter"
includes the cause of action and the relief
claimed. In the matter of N.R. Narayan Swamy vs.

¶370

B. Francis Jagan (referred supra), the Hon'ble
Supreme Court was dealing with eviction matter

¶371

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

¶372

for eviction on the ground of bona fide
requirement, even though the premises remain the
same, the subject-matter which is cause of action,

¶373

may be different. Case of "Sujit Singh" relied on

¶374

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¶375

¶376

by learned counsel for Respondent can be

¶377

distinguished as it had different facts and

¶378

subsequent matter was based on same cause of
action. In the present matter, although the
foundational facts regarding relationship of the

¶379

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

¶380

to be withdrawn in view of the subsequent
developments. If such view is not taken, it would

¶381

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

¶382

incidents giving rise to fresh causes of actions
and claim for relief which would be subject-matter

¶383

for the subsequent action. For such reasons, we do

¶384

not find that the present Petition is barred. We

¶385

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¶386

¶387

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
subject-matter, however, it does not bar the
earlier defendant or respondent from agitating the
instances provided they are relevant in subsequent

¶388

petition. In the present matter although now
objection under Order XXIII of C.P.C. has been
raised, the Respondent has raised various disputes

¶389

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.

¶390

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¶391

¶392

CRUELTY :

¶393

20.Coming to the second Point for

¶394

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

¶395

that proceeding was served on the Respondent on
9th February 2004. As per the Petitioner, when she

¶396

received notice, she threatened the Petitioner
with false prosecution under Section 498-A of
I.P.C. against him and his family members. He has

¶397

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 498-A of I.P.C. He claims

¶398

that she threatened that she will commit suicide
and implicate him and his family members and put

¶399

them in jail. His evidence is that on 26th
February 2004 also Respondent visited his clinic

¶400

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¶401

¶402

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 498-A 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.

¶403

.According to the Petitioner, Respondent

¶404

filed false F.I.R. dated 29th February 2004
alleging that he and his family members ill-
treated her, assaulted her, demanded Rupees Two
Lakhs and fifteen Tola gold and went to the extent

¶405

of alleging assault on her on 28th February 2004.
This led to offence being registered at Jinsi

¶406

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¶407

¶408

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.

¶409

21.The Respondent extensively cross examined
the Petitioner and brought on record various
documents relating to the criminal cases. The
Petitioner, in cross-examination, gave certain
admissions (relating to incidents which were basis
of earlier petition) while denying allegations of
ill-treatment by him or that he or his family
members had demanded dowry or beaten the

¶410

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¶411

¶412

Respondent.

¶413

RESPONDEDNT NOT RELIABLE :

¶414

22.The Respondent filed affidavit as

¶415

examination-in-chief and reiterated what she had
claimed in her say/written statement, which we

¶416

have discussed above. We need not repeat the same.
She has also been cross-examined and her cross-
examination reveals certain facts which show that
she is not reliable witness. We will briefly refer
to those instances:

¶417

(a).In evidence the Respondent has

¶418

tried to show that after separating from

¶419

the Petitioner she, having qualification of

¶420

BAMS, has tried to practice, for which she

¶421

joined the office of one Dr. Roplekar and

¶422

one Dr. Jadhav ( Para 36 and 37 of her
examination-in-chief). She claimed that she

¶423

could not continue due to the pressure from

¶424

the mother of Petitioner. Thus, she has

¶425

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¶426

¶427

tried to show that the Petitioner and his
family are making her life miserable. In
cross-examination, however, she accepted
that her own sister, with whom she had got
good relations, herself has a clinic at

¶428

Kartiki Hotel (Para 2 of the cross-
examination). She denied that she was
practicing with her sister.

¶429

Respondent claims that the Petitioner
husband took away part of the amount of

¶430

loan which she had taken from the Bank for
her clinic. However, her cross-examination,

¶431

Para 9 shows that she had submitted
quotations to the Bank to get the loan
released. Her evidence ( Cross - Para 29)

¶432

shows that initially she accepted that she
received cheque from Bank of Rupees Ten

¶433

Thousand in the name of M/s. Vijay and
sons, but in further cross-examination she

¶434

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¶435

¶436

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.

¶437

(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

¶438

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, RW-2 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

¶439

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¶440

¶441

29th November 2002 he was given original of

¶442

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 cross-
examination 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,

¶443

no evidence worth the name was brought on
record by her. In the photographs of
marriage, brought on record, her parents or

¶444

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

¶445

witnesses on her behalf as those advocates
who were friends of the Petitioner, not

¶446

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¶447

¶448

known to Respondent since before. Although
denied in Written Statement, Respondent
admitted (in Para 17 of her cross-
examination) that the marriage reception
dated 8th December 2002 was arranged by the
Petitioner.

¶449

(d).Respondent claimed (in Para 18 of
cross-examination) 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.

¶450

(e).Respondent wanted to attribute

¶451

misconduct to the Petitioner and his family
claiming that she was not allowed to go to

¶452

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¶453

¶454

meet her father when he met with an
accident. However, evidence has come on

¶455

record that she had indeed been going out

¶456

and had gone and met her father.

¶457

(f).Respondentclaimedphysical

¶458

assault on her on 28th February 2004 seen
by compounder Vishnu (Para 53 of
examination-in-chief). She claimed that the
incident took place at 12.30 p.m. Still she

¶459

went to Ghati Hospital only at 5 - 5.30
p.m. and that too to Dr. Vikhe, husband of

¶460

her friend Anupama (Para 19 of her cross-
examination). She tried to show that she
did not go to private doctor in order to

¶461

save name of the family but still she goes
to husband of her friend in Government

¶462

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

¶463

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¶464

¶465

crowded area (Para 19 of her cross-
examination) and still she had no witness
in her support. In criminal case and in
thisPetitionalsothereisno
corroboration to her claims of having been
beaten more than 9-10 times.

¶466

(g).In written statement Para 14 and

¶467

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 cross-examination 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 cross-
examination shows that she admitted that at

¶468

the time of anticipatory bail of the
relatives of the Petitioner, she was

¶469

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¶470

¶471

present in Court and filed photographs

¶472

showing bandage to both of her hands. Of

¶473

course, she immediately retracted from this

¶474

admission also.

¶475

(h).Although Respondent denied her

¶476

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

¶477

the cross-examination) with her admission
in the criminal case where she admitted her

¶478

signature on the document. She deposed that
she had admitted her signature in the case
under Section 498-A of I.P.C. Then she has

¶479

added that it was under pressure of
Advocate Ghanekar representing the accused.

¶480

(i).In Para 27 of her cross-

¶481

examination, Respondent accepted that there
was no dispute at the time of betrothal

¶482

fca13.08

¶483

¶484

ceremony about what is to be given. We have
already mentioned that the subsequent

¶485

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

¶486

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

¶487

and they got married. Petitioner and his
family knew that father of Respondent was a

¶488

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

¶489

fca13.08

¶490

¶491

was willing. A family interested in dowry
would not have done that.

¶492

(j).Although the Respondent claimed

¶493

that when she was cohabiting with the
Petitioner, she was seriously beaten on
more than 8-9 occasions, no single piece of
evidence was brought on record either in
the form of medical certificates or the

¶494

evidence of any other doctor to whom

¶495

Respondent claims that she was taken by the
Petitioner.

¶496

(k).Respondent denied (in Para 27 of
cross-examination) that she had engaged
Advocate Nanasaheb Jagtap in Criminal Case
No.414 of 2004 as Advocate to assist the

¶497

prosecutor. However, in subsequent cross-
examination (Para 33) when she was
confronted with the Vakalatnama Exhibit 132
and other documents, she had to admit that

¶498

fca13.08

¶499

¶500

she did engage Advocate Jagtap in the
criminal case.

¶501

(l).Respondent claimed (in Para 3 of

¶502

her examination-in-chief) that marriage was

¶503

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 in-laws were
troubling her for fifteen Tola gold and
Rupees Two Lakhs. No such assertion was
made against the in-laws 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.

¶504

(m).Respondent has claimed that when

¶505

she was assaulted and left at the place of
her parents, she was pregnant by three

¶506

months and because of the assault she was
taken to Dr. Mrs. Mahindrakar and although

¶507

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¶508

¶509

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

¶510

that she suffered miscarriage.

¶511

IMPUGNED JUDGMENT NOT MAINTAINABLE :

¶512

23.We have gone through the evidence of the

¶513

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

¶514

she has given false testimony to some extent. The
observations of the Family Court show (in Para 40

¶515

of the Judgment) that this is not a case of
physical cruelty. As regards mental cruelty, in

¶516

fca13.08

¶517

¶518

Para 45 of the Judgment the Family Court assumed

¶519

that as father of Respondent was Class IV employee
and Petitioner claimed that it was love marriage,

¶520

mother and brother of the Petitioner must have
tortured Respondent. We find that there was

¶521

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

¶522

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

¶523

(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 498-A of I.P.C. on the reasoning
that it was the Petitioner who first filed divorce

¶524

fca13.08

¶525

¶526

petition. We do not agree with such reasoning.
Only because the husband had filed divorce

¶527

petition, would be no licence for the wife to file
criminal cases making wild allegations which she
is unable to prove.

¶528

.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

¶529

to the importance of child. In fact, the Family

¶530

Court, in the course of recording evidence, has
allowed to be brought on record lot of evidence

¶531

fca13.08

¶532

¶533

which was not really relevant for deciding the
issues which had been framed. It was like trying

¶534

to prove the criminal case in the civil
proceedings. We find that the impugned Judgment is
not maintainable.

¶535

THE CRIMINAL AND OTHER CASES FILED :

¶536

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

¶537

alleged that she was treated well for two months
after the marriage and then her sister-in-law
Pragati and mother-in-law Nirmala started
grumbling that the Petitioner would have got
Rupees ten to fifteen Lakhs as dowry and girl who

¶538

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,

¶539

started giving her trouble and started beating her
claiming that she does not know household work or

¶540

fca13.08

¶541

¶542

cooking. She claimed that on 8-9 occasions the
Petitioner had beaten her, and her brothers-in-law
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

¶543

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 mother-in-law,
brother-in-law were suspecting that she has some

¶544

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,

¶545

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

¶546

to the hospital at Thakre Nagar, at which time the
Petitioner had slapped her in the cabin and

¶547

twisted her thumbs of both hands and threatened
that if she wanted to stay with him, she should

¶548

get Rupees Two Lakhs and fifteen Tola gold from
her parents or else he will not let her parents

¶549

fca13.08

¶550

¶551

live.

¶552

25.On the basis of above F.I.R., Regular

¶553

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

¶554

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

¶555

had filed Criminal Appeal No.111 of 2006 to the
First Additional Sessions Judge, Aurangabad, who

¶556

had remanded the matter on the basis that separate
charge under Section 323 of I.P.C. should have

¶557

fca13.08

¶558

¶559

been framed. In Criminal Revision No.188 of 2007

¶560

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

¶561

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

¶562

fca13.08

¶563

¶564

as a witness.

¶565

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.

¶566

27.Apart from the above criminal case No.414
of 2004 ending up in acquittal, which has become

¶567

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

¶568

fca13.08

¶569

¶570

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

¶571

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.

¶572

Not satisfied with the Judgment of the C.J.M., the
Respondent filed Criminal Revision No.19 of 2002

¶573

before the Additional Sessions Judge, Aurangabad
and the dismissal of the complaint filed by the

¶574

fca13.08

¶575

¶576

Respondent has been maintained. It is quite clear
reading Section 195 with Section 340 of Cr.P.C.

¶577

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

¶578

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

¶579

provided to him. Thus, in law or even on

¶580

appreciation of evidence, the findings recorded by
the Family Court on this count cannot be

¶581

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¶582

¶583

maintained.

¶584

28.In line with the other on-slaught 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.

¶585

29.With Civil Application No.15183 of 2015

¶586

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

¶587

(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

¶588

fca13.08

¶589

¶590

allowed to stay there as paying guest or tenant or
to come as friend.

¶591

.Clearly,Respondentwasmaking

¶592

allegations against the character of the

¶593

Petitioner although in the written statement she
filed, she claimed that she was not suspecting the

¶594

character of the husband. Such psyche of
groundless, unsupported doubts by one spouse as
seen in present matter (of seeking to keep out all

¶595

women (other than mother and sisters) from the
house and baseless suit to restrain husband from

¶596

re-marrying) cast aspersions on character of the
other spouse amounting to cruelty.

¶597

30.Considering the observations of the

¶598

Hon'ble Supreme Court in various matters, referred

¶599

above, where wild allegations are made in criminal

¶600

cases one after the other, we find that in the

¶601

present case also the Respondent indulged in
various conducts once she received summons in the

¶602

fca13.08

¶603

¶604

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

¶605

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¶606

¶607

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.

¶608

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.

¶609

32.A parting reference can be made to recent

¶610

fca13.08

¶611

¶612

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:

¶613

"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."

¶614

CRUELTY PROVED :

¶615

33.We find substance in the arguments of

¶616

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)(i-a) of the Hindu Marriage
Act, 1955. There are no grounds to attract Section

¶617

fca13.08

¶618

¶619

23 of the Hindu Marriage Act and the Petitioner is
entitled to decree of divorce.

¶620

PERMANENT ALIMONY :

¶621

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 assessment-sheet of the house at

¶622

Seven Hills, Aurangabad belonging to the
Petitioner and his family showing the value as
Rs.1,07,41,500/- (Rupees One Crore Seven Lakhs

¶623

Forty One Thousand Five Hundred). The property
card at Exhibit 45 shows that apart from mother of

¶624

Petitioner his two brothers are also co-owners in

¶625

the property which they have inherited from their
father. In the cross-examination of the Petitioner
(Para 1) the Respondent brought on record the fact

¶626

that his mother is assistant teacher in grant
aided school. His father was no more at the time

¶627

fca13.08

¶628

¶629

of their marriage. Earlier, his father had been
head master in private education institution. The

¶630

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

¶631

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
Indu-Ganga complex. Thus with humble beginnings

¶632

the family was just coming up. Respondent
similarly has started with humble beginnings and
the sisters and brothers with education have come

¶633

up. There was suggestion put by Respondent herself
in the cross-examination 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 co-sharers and
the Petitioner is a doctor, while Respondent also
is a doctor. Keeping in view this capacity of both

¶634

fca13.08

¶635

¶636

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.

¶637

35.For the reasons afore stated, we pass the
following order:

¶638

O R D E R

¶639

(I) The Family Court Appeal is allowed.

¶640

Impugned Judgment and Order are quashed and
set aside. Petition No.A.263 of 2006 is
allowed.

¶641

(II) The marriage dated 29th November 2002

¶642

between the Appellant-Petitioner and
Respondent is hereby dissolved by decree of

¶643

divorce under Section 13(1)(i-a) of the
Hindu Marriage Act, 1955.

¶644

fca13.08

¶645

¶646

(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.

¶647

(IV) No order as to costs.

¶648

(V) Decree be drawn accordingly.

¶649

[A.I.S. CHEEMA, J.] [R.M. BORDE, J.]
asb/JAN16

Ajay Devidasrao Sambare v. Vaishali Ajay Sambare

Case brief

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Ajay Devidasrao Sambare v. Vaishali Ajay Sambare

Case brief

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