Bombay High Court
Premdeep S/O Nishikant Matlane vs Mrs. Bhavana W/O Premdeep Matlane on 27 August, 2021
Bench: A. S. Chandurkar, G. A. Sanap
fca24.2020judge.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO. 24 OF 2020
Premdeep S/o. Nishikant Matlane,
Aged about 36 Yrs. Occ.: Employed,
Presently residing at N-2, CIDCO,
Vithal Nagar, Aurangabad-431003 .....APPELLANT
..VERSUS..
Mrs Bhavana W/o. Premdeep Matlane,
Aged: 35 Yrs., Occ. : Self Employed,
R/o. C/o. Somnath Lohar, Flat No.08,
Second Floor, Kamla Towers,
Behind Maa Gayatri School, Gayatri
Nagar, Akola, Tal. & Distt. Akola ....RESPONDENT
-------------------------------------------------------------------------------------------------
Shri Hemant Surve, Advocate for appellant
None for the respondent
--------------------------------------------------------------------------------------------------
CORAM : A. S. CHANDURKAR AND G. A. SANAP, JJ.
ARGUMENTS WERE HEARD ON : 30.07.2021
JUDGMENT IS PRONOUNCED ON : 27.08.2021
ORAL J U D G M E N T (Per : G. A. Sanap, J.)
In this appeal challenge is to the Judgment and decree
dated 07.12.2020 passed by the Family Court at Akola whereby
the learned Judge of the Family Court, Akola rejected the decree
for divorce as prayed by the appellant and granted a decree for
judicial separation for a period of one year.
2] The facts leading to this appeal are as follows:
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
2
The respondent and the appellant got married on
04.072014 at Akola. After marriage, they went to stay at Panjim
because the appellant at that time was working in the Panjim Goa
Bench of the Bombay High Court. They started their married life
blissfully. However, later on the discord in the relations were
developed. It is the case of the appellant that after sometime in
the company of the respondent he found that by nature she was
aggressive. She would speak utter lies. She had extreme affinity
towards her parents and particularly for parents' residence at
Akola. The respondent would quarrel with the appellant on petty
matters. The respondent would tell the appellant that she was
uncomfortable at Panjim in as much as the distance between
Akola and Panjim was too far. The respondent according to the
appellant would insist the appellant to leave the job and shift to
Akola with her and take some new assignment at Akola. It is
stated that in the family of the respondent her mother is
dominating and the respondent was under the total influence of
her mother. The respondent would follow the instructions and
advice of her mother. The job of the appellant was permanent job
in the High Court. He, therefore, did not agree to the suggestions
made by the respondent to quit the job. According to the
appellant, this was the trigger point to escalate the conflict
between him and the respondent.
3] After marriage the appellant and the respondent stayed
at Panjim till 28.08.2014. Between 15.08.2014 and 18.08.2014
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
3
they had celebrated their honeymoon. From 28.08.2014 to
08.09.2014 the respondent resided at Aurangabad on the occasion
of Ganpati and Mahalaxmi festivals. From 10.09.2014 to
18.10.2014 the respondent resided at Akola. The respondent
came to Aurangabad on 19.10.2014 for Diwali. The appellant
joined them at Aurangabad. After Diwali for the festival of
Bhaubij the respondent went to Akola with her brother from
02.11.2014 to 09.12.2014. After Diwali between 13.12.2014 to
22.12.2014 the entire family of the appellant went to a trip of
South India. After coming back, from 22.12.2014 to 09.04.2015,
the respondent resided with the appellant at Panjim. It is alleged
that during this period of four months the respondent forcefully
insisted the appellant to leave his job at Panjim and shift to Akola.
She started causing mental pain and agony to the appellants. She
made his life miserable. The wife did not maintain any relations
with the appellant. The respondent according to the appellant
opposed the idea of motherhood. The cantankerous behavior of
the respondent totally fed up the appellant. However, the
appellant made it clear to the respondent that he would not resign
the job and settle at Akola, as suggested by the respondent.
4] The respondent is well qualified. The respondent
according to the appellant, on 09.04.2015, under the pretext of
appearing for competitive examination left the house of the
appellant. She carried all gold ornaments given by the appellant
in the marriage with her. The appellant tried his level best to
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
4
convince the respondent to come back, however she did not pay
heed to the request made by the appellant.
5] It is stated that in the night of 31.10.2015 the
respondent alongwith her father came to Panjim. The appellant
welcomed them. It is stated that all of a sudden the respondent
and her father started quarreling with the appellant. The
appellant realized that the respondent had not come to Panjim to
stay over there. He realized that she had come there to carry her
clothes, goods and articles and to leave his company
permanently. The respondent packed her luggage including
important documents and left his company in the mid-night. The
appellant requested the respondent and her father with folded
hands to desist from leaving in the night but to no avail.
6] The appellant called his two colleagues to assist his
wife and father who had started walking on the street in the night.
The appellant tried to pacify them. It is stated that the wife
abused him in filthy language. The respondent and her father left
the house of appellant. However, on 02.12.2015, he came to
know that she had lodged the report at Panjim Police Station. He
went to the Police Station. At the intervention of the Police the
matter was settled. She withdrew the complaint. It is the case of
the appellant that she has filed number of complaints and cases
against him. She has made his life miserable. She has caused
unbearable harassment and mental cruelty to the appellant. She
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
5
has made a complaint before the Member of the Women
Commission; application under Section 125 of the Code of
Criminal Procedure, 1973 before the Family Court at Akola;
application under Section 12 of the Protection of Women From
Domestic Violence Act, 2005 (For short 'the D.V. Act') before the
Judicial Magistrate First Class; she has lodged the report against
the appellant at Khadan Police Station Akola, on the basis of it
crime under Sections 498-A, 506 and 323 of the Indian Penal
Code, has been registered against the appellant and his family
members. She has made reports to the various authorities of the
High Court of Bombay and to Superintendent of Police, Akola.
The appellant initially prayed for the decree of judicial separation
on the ground of mental cruelty and harassment. However, during
the pendency of petition he amended the petition and prayed for
decree of divorce on the ground of harassment and mental cruelty
as provided under Section 13(1)(i-a) of the Hindu Marriage Act,
1955.
7] The respondent filed the written statement and
opposed the petition. In sum and substance, the respondent has
denied material facts pleaded in the petition. She has
categorically denied that she insisted the appellant to leave his job
and settle down at Akola and take some new job at Akola.
According to the respondent, the allegations are false, frivolous
and baseless. She has stated that the appellant and his parents,
within few months of her marriage started making demand of the
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
6
household articles. They ill-treated the respondent by pointing
out that the marriage at Akola was not celebrated as per their
status. They made demand of dowry. The parents of the
respondent could not afford to pay the dowry. Similarly, her
parents could not afford to meet the other demands made by the
appellants and his parents. It is alleged that during her stay at
Aurangabad the mother of the appellant literally made her life
miserable. The respondent was forced to do the household work.
They discontinued the services of the maid servant. The
respondent was burdened with the entire household work. She
was ill-treated. Sometime she was beaten and tortured. She was
not given meals. She had became weak. She could not bear the
torture and ill-treatment. It is the case of the respondent that ill-
treatment was meted out to her in as much as her parents could
not fulfill the greedy demands of appellant and his parents.
According to the respondent, in the night of 31.10.2015 she had
gone to Panjim with her father. The appellant quarreled with
them. The appellant did not allow her to enter the house. The
appellant, according to the respondent, drove her out of the house
with her goods, articles and clothes and instructed her not to
come back again. It is stated that therefore, she had no other
alternative but to stay at the house of her parents at Akola.
According to her, the complaints made by her are genuine. She
has not caused mental cruelty as alleged to the appellant. On the
contrary, according to her she has been put to severe mental
cruelty at the hands of the appellant.
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
7
8] In the Family Court at Akola both the parties adduced
the evidence. The appellant has examined himself. He has
examined one independent witness to corroborate his case on the
material points. The respondent has examined herself as a sole
witness. Both the parties have produced on record their
documentary evidence.
9] The learned Judge of the Family Court on appreciation
of the evidence came to the conclusion that the case was not made
out to grant a decree of divorce. The learned Judge came to the
conclusion that in the facts and circumstances the decree for
judicial separation would be the appropriate relief. Being dis-
satisfied with this judgment and decree denying the relief of
divorce the appellant has come before this Court in appeal. The
grounds of a challenge to the impugned judgment have been set
out in the memo of appeal. The main ground is that the learned
Judge of the Family Court has recorded a finding on the basis of
the evidence adduced by the parties that the appellant has
established a case of the cruelty at the hands of wife but refused to
grant the decree for unacceptable reasons. It is stated that the
decree for judicial separation has been granted on proof of the
mental cruelty meted out to the appellant by the respondent.
10] We have heard the learned Advocate for the appellant
at length. The respondent and her Advocate remained absent
throughout. Therefore, we had no benefit to hear the argument
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
8
on the side of the respondent. With the assistance of the learned
Advocate for the appellant we have gone through the entire record
and proceedings.
11] In view of the facts and circumstances of the appeal
following points fall for our determination and we record our
findings thereon for the reasons to follow:
Sr. POINTS FINDINGS
No.
1. Whether the appellant has proved
that the respondent after the
solemnization of their marriage had ...In the affirmative
treated him with cruelty ?
2. Whether the Judgment and decree
passed by the learned Judge of the
Family Court rejecting the decree of
divorce is sustainable ? ...No
3. What order ? As per final order
AS TO POINT NOS. 1 AND 2:
12] The learned Advocate for the appellant submitted that
on the basis of the cogent and concrete evidence, the appellant
has proved that for no reason and no fault on his part the
respondent had made his life miserable. The learned Advocate
submitted that on appreciation of the evidence led by the
appellant and the respondent, the learned Judge of the Family
Court recorded a candid finding in para No. 32 of the Judgment
that on the basis of the oral and documentary evidence the
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
9
appellant has established a case of a mental cruelty to him at the
hands of the respondent. The learned Advocate submitted that in
view of this finding of a fact based on the oral and documentary
evidence, the learned Judge of the Family Court without recording
a justifiable reason denied the relief of divorce to the appellant.
The learned Advocate submitted that there is ample oral and
documentary evidence to establish that the respondent made
unfounded, unsupported and baseless allegations against the
appellant and his family members. The learned Advocate
submitted that the conduct of the respondent made the life of the
appellant miserable. The learned Advocate submitted that the
appellant being caring husband extended support to the
respondent to peruse her further studies. The learned Advocate
submitted that the arrogant and cantankerous nature of the
respondent not only made the life of the appellant miserable but
also made the life of his parents miserable. The learned Advocate
submitted that the learned Judge of the Family Court has accepted
the case of the appellant that the respondent has made unfounded
& unsupported wild allegations against the appellant and his
family members. The learned Advocate submitted that the
appellant was within his right to deny the request made by the
respondent to leave the secured job. The learned Advocate
submitted that the respondent took it as insult and started
extending threats and all sorts of trouble to the appellants.
13] The learned advocate further submitted that during the
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
10
pendency of the petition itself the respondent had made her
intention of parting ways with appellant clear, by uploading her
profile on two marriage bureau websites, namely
BharatMatrimony.com and Shaadi.com. The learned Advocate
submitted that before judgment delivered in the petition by the
learned Judge of the Family Court, on 22.10.2020 the appellant
has produced the relevant documents on record. The learned
Advocate submitted that the respondent did not file reply to this
application and specifically denied the facts brought on record by
way of these documents. The learned Advocate submitted that
respondent made her intention writ large to get rid of the
appellant and begin her life afresh with someone else. The
learned Advocate submitted that the documents produced on
record with the application at Exh.69 on 22.10.2020 can be taken
into consideration in view of the provisions of Section 14 of the
Family Courts Act, 1984. The learned Advocate submitted that
the learned Judge of the Family Court has not taken these
documents into consideration while deciding the claim.
14] At the outset it would be necessary to consider the
settled legal position. In the case of Dr. (Mrs.) Malathi Ravi,
M.D. .v/s. Dr. B. V. Ravi, M.D., reported in 2014 (7) SCC 640, the
Hon'ble Supreme Court of India has held that if the wife has no
intention to lead a normal life then on the ground of mental
cruelty the decree for divorce can be granted. It is further held
that the false allegations by one spouse against the other amounts
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
11
to mental cruelty. It is held that the mental cruelty and its effect
cannot be stated with arithmetical exactitude. It varies from
individual to individual, from society and also depends upon on
the status of the person. In this case the false first information
report against the husband under the Dowry Act and under
Section 498-A was found to be a valid ground for divorce.
15] In the case of Vishwanath S/o. Sitaram Agrawal .v/s.
Sarla Vishwanath Agrawal delivered in Civil Appeal No. 4905 of
2020, the Hon'ble Supreme Court of India has held that the
mental torture caused by one spouse to the another by making
wild and false allegations in a report lodged to the authority as
well as in the electronic and print media constitute a mental
cruelty and as such the ground for divorce.
16] In the case of V. Bhagat .v/s. Mrs. D. Bhagat reported
in AIR 1994 SC 710 the Hon'ble Supreme Court of India has
considered as to what constitute mental cruelty and what should
be the parameters while deciding the cruelty. It is held that the
mental cruelty in Section 13 1 (i-a) can broadly be defined as that
conduct which inflicts upon the other party such mental pain and
suffering as would make it impossible for that party to live with
the other. It is held that the mental cruelty must be of such a
nature that the parties cannot reasonably be expected to live
together. The situation must be such that the wronged party
cannot reasonably be asked to put out with such conduct and
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
12
continue with the other party. It is held that it is not necessary to
prove that the mental cruelty is such as to cause injury to the
health of the appellant. While arriving at such conclusion regard
must be had to the social status, educational level of the parties,
society they move in, the possibility or otherwise of the parties
ever living together in case they are already living apart and all
other relevant facts and circumstances. It is held that a cruelty in
one case may not amount to cruelty in another case. It is matter
to be determined in each case having regard to the facts and
circumstances of that case. If it is case of accusations and
allegations, regard must also be had to the context in which they
were made.
17] In order to appreciate the submissions on facts it would
be necessary to see whether the case of the appellant fits in the
parameters laid down in the judgments supra. At the outset it
would be necessary to make a note of the conduct of the
respondent pending the divorce petition.
18] The evidence adduced by the parties and the conduct
of the respondent needs to be appreciated in the backdrop of the
observations made by the learned Judge of the Family Court in
para No. 32 of the impugned judgment. The learned Judge has
recorded a categorical finding that, on the basis of the oral and
documentary evidence, the appellant has established the case of a
cruelty at the hands of respondent in as much as the respondent
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
13
made unfounded and unsupported allegations against the
appellant. The learned judge observed that the fact that the
allegations are unfounded and unsupported has been established
on the testimony of the respondent. It is to be noted that despite
this finding of fact the learned Judge did not deem it appropriate
to grant a decree for divorce.
19] The evidence of respondent was over on 08.10.2020.
On 15-10-2020, she filed a pursis closing her evidence. On
22.10.2020, the Advocate for the appellant made an application at
Exh. 69 under Section 14 of the Family Courts Act, 1984 and
sought the leave of the Court to produce on record the
matrimonial profile of the respondent uploaded by her on
BharatMatrimony.com and Shaadi.com. The learned Advocate for
the respondent filed his say contending that the application is not
legal and tenable and therefore, prayed for rejection of the same.
It is pertinent to note that alongwith this application the Advocate
for the appellant has produced the matrimonial profile uploaded
on the above two websites by the respondent. It is pertinent to
mention that on being confronted with the documents, sought to
be produced on record, the respondent was supposed to file a
detailed reply and place on record her side of the story. The
respondent could have either denied the documents or placed on
record plausible explanation vis-a-vis the documents. But, the
respondent chose not to do either of it. The learned Judge of the
Family Court, on 22.10.2020, allowed the production of the
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
14
documents. The documents are part of the record. The learned
Advocate for the appellant placing reliance on Section 14 of the
Family Courts Act, 1984 submitted that these documents can be
read in evidence. Section 14 of the Family Courts Act, 1984
provides that the Family Court may receive as evidence any
report, statement, documents for deciding the dispute effectively.
It further provides that the Family Court can receive the
documents whether or not the same would be otherwise relevant
or admissible under the Indian Evidence Act, 1872. Section 14 of
the Family Courts Act, 1984 is an exception to the application of
Indian Evidence Act, 1872 and allows the Family Court to admit
the documents on record provided the same are necessary for
effective resolution of the dispute. On plain reading of Section 14
we have no reason to reject the submissions advanced by the
learned Advocate for the appellant. In our opinion, the documents
produced on record in the form of matrimonial profile uploaded
by the respondent on 22.10.2020 can be taken into consideration
for deciding the question in controversy in this appeal.
20] On perusal of the matrimonial profile uploaded by the
appellant it would show that even before decision in the divorce
petition she had made up her mind to perform the second
marriage. The respondent uploaded her matrimonial profile on
two matrimonial websites. She has uploaded the necessary
information. In the uploaded matrimonial profile she has
categorically stated that she is awaiting the divorce in pending
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
15
case. In our opinion, the respondent by uploading her profile on
two matrimonial websites made her intention writ large. On the
basis of this document it can be inferred that she wanted to get rid
of the appellant and wanted to perform the second marriage. It is
pertinent to note that this conduct of the respondent is not
consistent with the facts stated by her in the written statement. In
the written statement she has contended that as an obedient wife
and daughter-in-law she performed her duties sincerely but the
appellant and his parents did not like her and wanted to get rid of
her from the life of the appellant. In our view this statement in
the written statement if read in the context of the documents
would seriously reflect upon the conduct of the respondent.
21] The appellant has examined himself. In his evidence
he has reiterated the facts pleaded in the petition. In sum and
substance in his examination in chief he has narrated his plight
and sufferings undergone by him at the hands of the respondent
during this short span of their married life. It has come on record
in his evidence that the respondent since beginning was not happy
to stay with him at Panjim. She insisted him to quit the secured
job and shift to Akola and take some new job at Akola. The
appellant has stated that he was not ready to do it. The appellant
has stated that there was no question of making any demand of
either dowry or other household articles in as much as they are
financially well off. It has come on record that the father of the
appellant has retired from the service of United News of India.
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
16
His mother is serving as an Assistant Registrar in the High Court of
Bombay, Bench at Aurangabad. It has come on record that they
have three storied building of their own at Aurangabad. The
further development would show that the appellant has now been
transferred from Panjim to Aurangabad. In his evidence the
appellant has stated that due to the false and frivolous complaints
and reports made by the respondent to the various authorities,
she has caused immense mental stress, depression, pain and
agony to him and his parents. In his evidence he has deposed
about their stay together during the short span of their married
life. The incident, occurred on 31.10.2015, when the respondent
left him permanently, has been narrated by him in his evidence.
On minute perusal of the evidence of the appellant and
particularly his cross examination we do not see any reason to
discard and disbelieve his evidence. In his cross examination
sufficient material has not been elicited to doubt the credence and
credibility of his evidence. Despite searching cross examination
his evidence has gone unshaken.
22] The appellant has examined one independent witness
Shri Ashwin Sharma to corroborate his evidence on the point of
the incident dated 31.10.2015. In his evidence he has elaborately
deposed about the said incident. In sum and substance he has
deposed that despite the repeated and humble request made by
the appellant to the respondent not to leave his company, she and
her father did not take pity on him and left the house in the night.
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
17
The father of the respondent has not been examined as a witness
to substantiate the contention of the respondent that the appellant
drove her out of his house and therefore, in the night she left his
house. The case of the respondent does not appear probable.
The independent witness has corroborated the evidence of the
appellant on this important point. The evidence proves that the
respondent packed her luggage and left the house of the appellant
permanently. In his evidence in detail the appellant has narrated
the mental cruelty suffered by him at the hands of the respondent.
23] The learned Judge of the Family Court took note of all
the complaints and reports made against the appellant by the
respondent. The complaints have been listed in para No. 9 of the
judgment. It is seen on perusal of the documentary evidence that
the respondent has made a complaint to the member of the
Women Commission. This complaint was later on withdrawn.
She made a report at Panjim Police Station against the appellant
on 01.12.2015 and on 02.12.2015 the said report was also
withdrawn. The respondent filed an application under Section
125 of the Code of Criminal Procedure before the Family Court at
Akola. In the said application also she made wild allegations
against the appellant and his parents. The respondent also filed
an application under Section 12 of the D. V. Act before the Judicial
Magistrate First Class, Akola. The record would show that on
24.11.2015, she lodged a report at Khadan Police Station, Akola.
This report was lodged 6-8 days of the filling of the above petition
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
18
by the appellant. The respondent lodged a second report against
the appellant and his family members on 14.06.2016 at Khadan
Police Station. On the basis of this report the FIR has been
registered against the appellant and his family members. Perusal
of all these documents would show that the respondent has made
serious and wild allegations against the appellant and his parents.
The last part of the cross examination of the respondent would be
very relevant in the context of the documents. In para No. 6 she
has admitted that the application made by her under Section 12 of
the D. V. Act was rejected on merit by the learned Magistrate.
24] The decision of the learned Magistrate is dated
12.04.2019 in Misc. Criminal Application No. 1935 of 2015. In
the said application, the respondent had reproduced all
allegations made in the reports/complaints against the appellant.
The learned Magistrate on appreciation of evidence came to the
conclusion that there was no substance in the allegations. The
learned Magistrate rejected her case based on these allegations in
toto. In our opinion, the learned Judge of the Family Court ought
to have taken all these facts into consideration and accepted the
case of the appellant seeking divorce. The learned Judge, as can
be seen on perusal of the impugned judgment, has not taken into
consideration the documentary evidence produced before
delivering judgment with regard to the uploading of her marriage
profile on the two matrimonial websites. The learned Judge
without assigning a convincing reason denied the decree of
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
19
divorce. In para No. 32 the learned Judge of the Family Court on
the basis of the evidence led by the appellant recorded a finding
that the appellant has established the case of cruelty at the hands
of the wife. In para No. 33 of the judgment the learned Judge of
the Family Court has observed that the cruelty is not of such a
nature which would cause reasonable apprehension in the mind of
the husband that it would be harmful or injurious for him to live
with the wife. In our opinion if the learned Judge of the Family
Court had taken into consideration the documents produced on
record before Judgment, whereby the respondent had uploaded
her marriage profile on two websites, the learned Judge would
not have recorded such a finding. In our opinion, this finding is
without considering the material evidence on record. The
evidence clearly indicate that the respondent had no wish and
desire to remain in company of the appellant. If the respondent
had sincere wish and desire to save her marriage she would not
have taken a conscious decision to perform the second marriage
even before the final out come of the divorce petition. The
evidence placed on record by the appellant coupled with the
conduct of the respondent through-out and subsequent to the
filling of the petition would prove beyond doubt that the
respondent had made the life of the appellant miserable. On the
basis of the admitted and proved facts no other inference is
possible. The allegations made in the complaints, produced on
record by the appellant, would show that the same are wild and
unfounded.
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
20
25] We have considered the legal position from the
decisions of the Hon'ble Supreme Court of India herein above.
The evidence on record proves that the respondent inflicted upon
the appellant mental pain and sufferings which would make it
impossible for him to live with the respondent. It has been proved
that the mental cruelty is such that it would in all probability
cause injury to the health of the appellant. The appellant and the
respondent got married in 2014. The appellant has been made to
fight this litigation till date for getting divorce. Before the decision
of the petition the respondent took a conscious decision to
perform the second marriage. In our view, therefore, the
preposition of law laid down in the judgments (supra) squarely
applies to the facts of the case of the appellant. It is further
pertinent to note that the conduct of the respondent to perform
the second marriage and not to lead the life with the appellant is
writ large from the fact that she did not apply for restitution of
conjugal rights. In the facts and circumstances we are of the
opinion that the view taken by the learned Judge of the Family
Court denying the decree of divorce for the reasons recorded in
the judgment cannot be sustained. In our opinion, the appellant
on the basis of cogent and concrete evidence has made out the
case that he was made to suffer mental cruelty of high degree and
therefore, he took a conscious decision to get separated from the
respondent. Accordingly, we conclude that he has proved that he
is entitled for divorce on the ground of the mental cruelty meted
out to him by the respondent. As such we record our findings on
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::
fca24.2020judge.odt
21
point No.1 in the affirmative. As far as point No.2 is concerned,
we conclude that the judgment of the Family Court cannot be
sustained. Hence, the following order:
ORDER
i. The family court appeal is allowed. ii. The judgment and decree, passed by the Family Court at Akola, dated 07.12.2020 , rejecting the prayer for granting divorce, is set aside.
iii. The Hindu Marriage Petition filed by the appellant is allowed. It is declared that the marriage between the appellant and the respondent is dissolved by decree of divorce on the ground of cruelty.
iv. In view of the decree for divorce the order granting decree for judicial separation does not survive.
The decree be drawn up accordingly. Parties to bear their own costs.
JUDGE JUDGE
Namrata
::: Uploaded on - 27/08/2021 ::: Downloaded on - 28/08/2021 08:57:29 :::