Dismissed

Machindra Rangnath Jadhav v. Kojagiri Machindra Jadhav

Bombay HC12 Sept 2017FCA/16/2007

Case brief

AI extract

What is this about?

The High Court of Bombay Bench at Aurangabad dismissed the husband's appeal against a Family Court decree granting restitution of conjugal rights against him. The court held that evidence proved he withdrew without reasonable cause. The civil application seeking a copy of a judgment was also disposed of.

What did the court decide?

Appeal dismissed; Civil Application disposed of.

Machindra Rangnath Jadhav Vs Kojagiri Machindra Jadhav — Matrimonial and Divorce | Bombay HC (2017)

¶1

( 1 ) fca16.07

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

¶3

FAMILY COURT APPEAL NO. 16 OF 2007 WITH

¶4

CIVIL APPLICATION NO. 7 OF 2012

¶5

Machindra s/o. Rangnath Jadhav..Appellant
Age. 34 years, Occ. Government Service, [original
Residing at ST Colony, Fazalpura,respondent]
Aurangabad.

¶6

Versus

¶7

Mrs. Kojagiri w/o. Machindra Jadhav..Respondent
Age. 28 years, Occ. Household[original
residing C/o. Yamunabai Madhavrao Salve,applicant]
Ramnagar, Mukundwadi,
Aurangabad.

¶8

Mr.Hemant Surve, Advocate for the appellant.
Mr.C.V. Dharurkar, Advocate for the respondent.

¶9

CORAM : T.V.NALAWADE &
S.M.GAVHANE,JJ.
DATED :12.09.2017

¶10

JUDGMENT [PER : S.M. GAVHANE, J.] :-

¶11

.The appellant-husband [hereinafter referred to

¶12

as “the respondent”] against whom decree for restitution

¶13

of conjugal rights under section 9 of the Hindu Marriage

¶14

Act has been passed in Petition No. A-359/06, filed by

¶15

the respondent-wife [hereinafter referred to as “the
petitioner”] by the Principal Judge, Family Court,
Aurangabad, has preferred this appeal challenging the
said decree.

¶16

2.Facts giving rise to the institution of the
present appeal are as under :-

¶17

A)The petitioner was married to the respondent-
husband on 07.01.2001 as per Bouddha customs and rites.
From the said wed-lock the petitioner has begotten
daughter – Priyanka on 02.11.2002 and daughter Pournima
on 25.02.2005. The marital tie between the petitioner
and the respondent is existing.

¶18

B)The petitioner-wife alleged that after marriage,
after some days, her in-laws, brother and sister of the
respondent-husband and her husband started picking
quarrels with her on petty grounds. Thereafter she was

¶19

pregnant. Her husband did not provide proper medicines
to her. The petitioner's mother incurred expenses of the
medicines, but there was abortion. The petitioner again
resumed co-habitation and was pregnant. Her husband and
people from her in-laws’ house removed ornaments from her
person and on beating her, left her to her parental house
for delivery. On 02.11.2002 she had begotten daughter –
Priyanka. Therefore, the respondent’s family became
nervous. Nobody from the side of the respondent husband
came to see the petitioner and her child. She was
already threatened that if she delivers female child, she
should not come for cohabitation.

¶20

C)The petitioner-wife further contends that the
respondent/husband filed petition No.A-13/2003 for

¶21

divorce and as she had a desire to cohabit with the
respondent-husband, there was settlement and she went to
cohabit. After 5-6 months thereafter the respondent and

¶22

his family members again started ill-treating the
petitioner. They were saying that she would again deliver

¶23

female child and therefore she should be kept under

¶24

control and that no expenses of her medicines should be

¶25

made and that there is no alternative than to marry
second wife, in-case again she delivers female child.
Other family members of the respondent instigated as

¶26

above to the respondent and the respondent used to
assault the petitioner. It is contended that without

¶27

giving any medical aid to the petitioner, she was left to
her parental house. Thereafter, on 25.02.2005 she has
begotten daughter – Pournima. Again nobody came to see
the petitioner and her child.

¶28

D)Thereafter, again the respondent-husband filed
Petition No.A-183/2005 for divorce. The said petition

¶29

was dismissed with costs. According to the petitioner,

¶30

despite harassment as above, for the future of her two
daughters and due to affection with respondent/husband,

¶31

the petitioner through her brother, mother and relatives

¶32

made attempt to persuade the respondent to cohabit her.

¶33

But the respondent did not allow her to cohabit with him.

¶34

Lastly on 15.10.2006, the petitioner, her mother and
younger brother went to the house of the respondent for
cohabitation. The wife of brother of the respondent had
phoned the respondent and till he comes the petitioner
and her relatives were made to stand waiting. The

¶35

respondent was repeatedly requested to cohabit with the
petitioner, but he said that he would not cohabit with
her, as maintenance has been fixed to the petitioner and
on saying so, the respondent threatened the petitioner
that she should be driven out by police, if she did not
leave his house. The petitioner is young and considering
future of her daughters, she has to cohabit with the
respondent. She has been unnecessarily deserted.
Therefore, she filed the petition for restitution of
conjugal rights.

¶36

3.The respondent/husband appeared and filed reply
at Exh.7. He admitted his relationship with the
petitioner and with the daughters. He denied almost all
the contentions of the petitioner which are made against

¶37

him. He has come with a case that while the petitioner

¶38

was cohabiting with him, she used to quarrel with him and
elderly persons in his family on petty grounds and used
to insult them. She was convinced, but there was no

¶39

change in her behavior. He has incurred medical expenses

¶40

of the petitioner to remove defect in her blood. When he
and his relatives went to see the child after delivery of

¶41

the petitioner, they were abused, beaten and pushed.
Therefore, NC Case No.35/2002 dated 09.03.2003 was
registered in Mukundwadi Police Station. After second
delivery of the petitioner also same treatment was given
to him and his relatives by the petitioner, her brother

¶42

and mother. Therefore, he was compelled to file the
petition for divorce which was dismissed. He is paying
maintenance of Rs.2000/- per month to the petitioner
regularly. To cause financial loss and mental cruelty to
him and to defame him, the petitioner has filed petition

¶43

for restitution of conjugal rights by making false
complaints against him. He contends that the petitioner

¶44

is of a quarrelsome nature, she is greedy and she has

¶45

given threat to his life. Therefore, if she comes to
cohabit with him, she would commit anything wrong with
his life. There is a danger to his life from the
petitioner. The matter was referred for conciliation,
but there was no settlement. There is report to that
effect. On the above grounds, the respondent-husband had
prayed to dismiss the petition.

¶46

4.The petitioner and the respondent adduced oral
as well as documentary evidence in support of their
respective contentions. Considering the said evidence,
the learned Judge of the Family Court on holding that
without reasonable cause the respondent has left company
of the petitioner wife and that therefore the petitioner
is entitled to decree for restitution of conjugal rights
against the respondent, allowed the petition by judgment
and order dated 06.03.2007 and directed the respondent to
take the petitioner-wife for cohabitation within one
month and to allow her to perform her duty as a wife.

¶47

5.It is the above said decree for restitution of

¶48

conjugal rights is under challenge in this appeal by the
respondent-husband on several grounds mentioned in the
memorandum of appeal. Notice was issued to the
petitioner-wife. She appeared through advocate.

¶49

6.We have heard the learned advocates appearing

¶50

for the respondent and the petitioner and with their
assistance we have perused the evidence adduced by the
parties. We have perused the impugned judgment and
decree.

¶51

7.There is no dispute that marriage between the
petitioner and the respondent was solemnized on
07.01.2001 as per Bouddha rites. The marital tie between
them as husband and wife is existing. From the said wed-
lock, the petitioner has begotten daughter-Priyanka on

¶52

02.11.2001 and daughter-Pournima on 25.02.2005. This
petition is the sixth proceeding between the petitioner
and the respondent. After birth of elder daughter-

¶53

Priyanka, respondent had filed petition No. A-13 of 2003

¶54

for divorce against the petitioner and it was settled on
04.03.2003 and then the petitioner started cohabiting
with the respondent. After birth of second daughter
Pournima the respondent – husband on 27.06.2005 again

¶55

filed petition No. A-183 of 2005 for divorce against the
petitioner-wife. On merit the said application was
dismissed on 30.01.2006. On 16.01.2006 the petitioner
wife had filed application for maintenance under section

¶56

125 of the Code of Criminal Procedure for herself and her
two minor daughters against the respondent, so also on
12.06.2006 she filed petition No. B-12 of 2006 against

¶57

the respondent-husband for possession of Stridhan
articles. Both the applications were heard together and

¶58

on 16.09.2006 said applications were partly allowed. The
petitioner-wife had filed execution petition as per
decree in petition No. B-12 of 2006 for possession of

¶59

Stridhan articles and said decree was satisfied and

¶60

execution petition was disposed of. There is also no

¶61

dispute that respondent-husband is serving in police

¶62

( 10 ) fca16.07

¶63

department at Aurangabad.

¶64

8.The only controversy between the parties is that
according to the petitioner-wife, respondent-husband has
without reasonable cause left her company and made her to

¶65

stay with her widowed mother at Ramnagar, Mukundwadi,
Aurangabad and therefore she is entitled to decree for
restitution of conjugal rights, as she desires to cohabit
with the respondent-husband. Denying the same, the
respondent-husband contended that the petitioner is of
quarrelsome nature. She, her brother and her mother
abused, beaten and threatened him when he had gone to see

¶66

the petitioner and her child after delivery of the
petitioner. There is danger to his life from the
petitioner, if she comes to him to cohabit with him. To

¶67

prove their respective contentions, mainly the petitioner
has relied upon her oral evidence and oral evidence of
her brother and the respondent has relied upon his sole
oral evidence.

¶68

9.Now coming to the oral evidence of the

¶69

petitioner (Exh.22) she deposed that after 3-4 months of

¶70

the marriage, she was pregnant. Her husband left her to

¶71

her mother's house as there was defect in her blood.

¶72

Miscarriage has taken place. Further, she deposed that

¶73

on resuming cohabitation her husband and rest of his
family members started blaming her that intentionally she

¶74

terminated pregnancy. She tried to convince them.

¶75

However, they were not in a mood to listen her. They

¶76

started blaming her that she is a lady of sick nature.

¶77

She requested her husband to provide medical facility to
her. However, her husband refused to provide the same

¶78

and directed her to proceed at her mother's house.
According to her, her mother provided medical facility to

¶79

her and the defect in her blood was cured. Then she
conceived. During pregnancy, respondent assaulted her and
left her at her mother's house. After she delivered

¶80

female child Priyanka on 02.11.2002, her husband or any

¶81

person from her in-laws' house did not turn to see even

¶82

the newly born daughter. So also, she deposed that the

¶83

respondent filed petition for divorce and said was
settled and the respondent admitted to take her for
cohabitation. Accordingly, she resumed cohabitation.
Thereafter, initially for 3-4 months, cohabitation was
joyful. Thereafter, again she was being blamed that she

¶84

can only deliver female child. However, she continued to
cohabit. Then she was pregnant. The respondent-husband

¶85

and his family members started quarreling with her on

¶86

petty reasons saying that she is useless and she must be
left at her mother's house. They threatened that if she
delivers female child, doors would be closed for her
forever. On 25.05.2005 she has begotten female child.

¶87

The respondent and his family members again did not turn

¶88

even to see newly born daughter. Thereafter, the

¶89

respondent again filed divorce petition and it was
dismissed. Thereafter, she visited on many occasions to
the respondent and requested him to allow her to resume
cohabitation. But, the respondent refused to cohabit
with her. So also on 15.10.2006 she visited residential

¶90

quarter of the respondent in Kranti Chowk Police line,

¶91

Aurangabad with her brother and mother. At that time,
the respondent was not in the house and they were made to
stand out of the matrimonial home. She requested the
respondent to allow her to cohabit. However, he declined
to allow her to cohabit and he threatened that in the

¶92

event she did not return, he would drive her out of
house. Therefore, she was compelled to take shelter of

¶93

her mother's house and to file petition for restitution
of conjugal rights.

¶94

10.In the cross-examination, the petitioner has
denied that the respondent and his family members

¶95

approached her to see her and the newly born daughter and
that the birthday function was a grand function. So also
she has denied that as she was not resuming cohabitation,

¶96

the respondent filed petition to compel her to cohabit
and discharge marital duties. She has, of course, stated
that she has not lodged report alleging assault by the
respondent. Thus, the evidence of the petitioner that

¶97

the respondent without any reason compelled her to stay

¶98

at her mother's house and left her company is not

¶99

shattered in her cross-examination on behalf of the
respondent.

¶100

11.The evidence of the petitioner that the

¶101

respondent without any just ground left her company, is
corroborated by her brother Rajkumar Salve (PW-2) at
Exh.23, as he has deposed that the respondent is not
allowing the petitioner to cohabit with him and therefore

¶102

she is residing with them. So also, he has deposed that
on 15.10.2006, he, his sister-the petitioner, her two
daughters and his mother went to the quarter of the

¶103

respondent at Kranti Chowk police line, Aurangabad. But,
they were made to wait and that the respondent did not

¶104

allow the petitioner to resume cohabitation saying that

¶105

she may file proceeding in the Court. So also, he

¶106

deposed that the respondent directed them to leave the

¶107

premises immediately, otherwise, he would call police.
His evidence is not shattered in the cross-examination on

¶108

behalf of the respondent. Thus, on the basis of evidence

¶109

of the petitioner and her brother, it can be inferred

¶110

that without justifiable ground, the respondent left
company of the petitioner wife.

¶111

12.Besides above oral evidence, admittedly, the

¶112

respondent had filed divorce petition No. A-13 of 2003
against the petitioner and it was settled on 04.03.2003.

¶113

So also he had filed divorce petition No. A-183 of 2005

¶114

and it was dismissed on 30.01.2000. Both the petitions
were filed for divorce on the ground of cruelty. It was
held in petition No. A-183 of 2005 by the Family Court
that the respondent failed to prove that after
solemnization of marriage, the petitioner treated the
respondent with cruelty. Thus, it is obvious from the
contentions in both the above petitions, which were filed

¶115

by the respondent-husband that he was interested in
getting divorce from the present petitioner-wife and he

¶116

was not ready to cohabit her. This shows that without

¶117

any just reason, he left company of the petitioner-wife.
So also as observed earlier, admittedly, the petitioner

¶118

had filed maintenance application under section 125 of
Cr.P.C. against the respondent and it was allowed and
maintenance of Rs.2000/- per month was granted to the
petitioner and her daughters. While deciding the said
application, it was held that the respondent refused and
neglected to maintain the petitioner and her daughters.
Admittedly, the findings in the said maintenance
application as well as in divorce petition No. A-183 of
2005 have attained finality as said orders were not
challenged in the higher court by the respondent-husband.
The findings in the maintenance application show that it
is the respondent who neglected and refused to maintain
the petitioner. This shows that without any just reason,
the respondent withdrawn himself form the company of the
petitioner. Thus above documentary evidence also
corroborates the evidence of the petitioner and her
brother about the respondent leaving company of the
petitioner without just reason.

¶119

13.As against the evidence of the petitioner, the

¶120

respondent-husband in his sole oral evidence at Exh.25
deposed in accordance with his case that the petitioner
started quarreling with him. After some days she became
pregnant. She was under treatment. Without informing

¶121

anybody she proceeded towards her mother's house for

¶122

delivery. When he visited his mother-in-law's house and
asked the petitioner as to shy she left the matrimonial

¶123

house, she disclosed that her first delivery will be at

¶124

her mother's house. He deposed that after 8-10 days of

¶125

delivery of the petitioner on 22.11.2002 he went to his
mother-in-law's house to see the petitioner and newly
born child and at that time his three bothers-in-law and

¶126

his mother-in-law were present and his mother-in-law
declared that the petitioner requires to work hard and

¶127

therefore she would not be sent. He stated that his

¶128

mother-in-law did not allow him to see newly born child
and drove him out of her house. So also he deposed that

¶129

on 09.01.2003 his brother Motilal and his wife Smt.

¶130

Hirabai went to the house of his in laws and they were

¶131

assaulted by his brothers-in-law - Kiran, Pramod and Raju

¶132

and his mother-in-law abused them and also assaulted

¶133

them. Therefore, according to him NC Case came to be
registered against his in-laws. Further he has stated
that after 8-10 days of second delivery of the petitioner
on 25.02.2005, he visited his mother-in-law's house to

¶134

see the petitioner and her daughter. At that time also
his mother-in-law and three brothers-in-law did not allow

¶135

him to enter the house and said that the petitioner
requires to work hard and he was driven out of his
matrimonial house, when he requested his mother-in-law to
allow him to take petitioner and her two daughters. He
has been cross-examined on behalf of the petitioner. His

¶136

above evidence is not shattered. He has not examined his

¶137

brother Motilal and his wife as his witnesses.
Therefore, his uncorroborated evidence on the background

¶138

that he had filed divorce petitions as referred earlier
against the petitioner and second petition was dismissed

¶139

on merits is not sufficient and believable to infer that

¶140

the petitioner went to her mother's house at her own and

¶141

that there is danger to his life if the petitioner is

¶142

brought to his house for cohabitation as alleged by him.

¶143

14.For all the reasons discussed above and on
considering evidence of either side, on the basis of
evidence adduced by the petitioner, it can be said that
without reasonable excuse, the respondent has withdrawn

¶144

himself from the company of the petitioner. The
petitioner was 28 years old and the respondent was 33
years old when the petition was filed. They both were

¶145

young when the petition was filed. Therefore,
considering the above all circumstances and the fact that
the respondent has without reasonable excuse withdrawn

¶146

himself from the company of the petitioner, the
petitioner is entitled to decree for restitution of
conjugal rights under section 9 of the Hindu Marriage
Act, as has been granted by the Trial Court. We find no
fault with the said decree. Therefore, the appeal being
devoid of merits, the same is liable to be dismissed.
Accordingly, we dismiss the appeal in the circumstances
with no order as to costs.

¶147

15.As regards Civil Application No. 7 of 2012,

¶148

which has been filed by the petitioner-wife to allow her
to produce copy of judgment dated 30.01.2006 in petition
No. A-183 of 2005 is concerned, said copy is already
produced on record by the petitioner with list Exh.29 as
can be seen from the record and proceeding of the
petition No. A-369 of 2006 for restitution of conjugal
rights and the same has already been considered as
observed earlier and was considered by the Trial Court
also. Therefore, Civil Application No. 7 of 2012 is
disposed of.

¶149

[S.M.GAVHANE,J.]

¶150

[T.V.NALAWADE,J.]

¶151

snk/2017/NOV17/ fca16.07

Machindra Rangnath Jadhav v. Kojagiri Machindra Jadhav

Case brief

What is this about?

What did the court decide?

Machindra Rangnath Jadhav v. Kojagiri Machindra Jadhav

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The State of Maharashtra Vs Kaba @ Vishnu Panditrao Dasalkar and Anr.

The State of Maharashtra Vs Vijay Gundare and Anr.

Vikram Yeshwant Jathar Vs Rekha Vikram Jathar

Lata Ashok Gaikwad Vs Ashok Nagorao Gaikwad

Kashinathrao Wamanrao Jaibahar Died Thr His Lrs Saroj and Ors. Vs Vijayshri Vijaykumar Jaibahar and Anr.

Gundya Yellappa Arote and Others Vs State of Maha.