Shri Prakash B. Nima v. Smt. Meenakshi P. Nima

While restoring this appeal vide our order 24/2/2009 parties notice appeal decided admission itself consequently Mr.Vyas, learned counsel appellant - husband circulated private copies and, therefore, parties so as to dispose this appeal at the admission stage itself.

The appellant had approached the Family Court filing Petition NO.A-109 2005 before Family Court at Mumbai seeking divorce ground cruelty desertion i.e. Section 13(1)(i-a) (i-b) Hindu Marriage Act,

1955. The marriage 2 between parties solemnised 22/2/2000 Bhoiwada, Mumbai Hindu religious

customs. Daughter Siddhi 2/11/2000. Within thereafter marital disputes between parties husband 18/7/2001 picked a quarrel ground wanted separately her mother opposed him, matrimonial leaving behind daughter husband. The husband claimed efforts persuade matrimonial and, therefore, issued notice 15/2/2002 finally petition seeking divorce. The petition opposed filing her Written Statement. The Family Court impugned appellant ground cruelty desertion. This finding solely passed learned Judicial Magistrate, First Class Thane application Section 125 Cr.P.C. Though appellant stepped witness box, evidence consideration evidence. As learned counsel respondent - wife, handicapped as she could not afford to pay the legal 3 fees and, therefore, the lawyer engaged was absent.

Section 43 of the Evidence Act states that the judgments, orders decrees, mentioned Sections 40, 41 42 irrelevant unless existence judgment, decree a provisions relevant Evidence Act. Mr.Vyas placed before a judgment Anil Behari Ghosh Vs. Smt. Latika Bala Dassi & ors. [AIR[AIR[AIR 1955 19551955 SC SC SC 566], 566] 566] clearly a judgment a criminal trial cannot be considered as evidence in civil cases.

Having heard the learned counsel for both the parties consideration position, satisfied interest parties impugned judgment rendered Family Court, restore petition filed by the appellant before the Family Court and remand for re-trial.

Hence we allow this appeal and set aside the impugned judgment 6th February

2008. Petition No.A-109 2005 hereby restored 4 Family Court at Mumbai remanded re-trial. The parties liberty adduce additional evidence desire including cross-examination respective witnesses. However, restored petition decided expeditiously possible within months appearance. The parties appear before Family Court Mumbai on 2nd April 2009. Parties to bear their own costs. (D.G.KARNIK,J.)

(B.H.MARLAPALLE,J.)