High Court

Legal Reasoning

fca-37.221 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFAMILY COURT APPEAL NO.37 OF 2022WITHCIVIL APPLICATION NO.8605 OF 2022Shri Jitendra Anil Sonar,Age-33 years, Occu:Tea Stall,R/o-Teli Chowk, Holewada, JalgaonTaluka and District-Jalgaon ...APPELLANT VERSUS Ketki alias Jayshree W/o Jitendra Sonar,Age-29 years, Occu:Household,R/o-C/o- Rajendra Pandit Sonar,In front of Datta Temple, Kusumba,Taluka and District-Jalgaon. ...RESPONDENT ... Mr. S.V. Deshmukh Advocate for Appellant. Ms. S.T. Kazi Advocate for Respondent. ... CORAM: SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ. DATE : 16th JANUARY, 2024 JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :1.Present Appeal has been filed under Section 19 of the fca-37.222Family Courts Act, by the appellant – husband to challenge thedecree for divorce passed by the learned Judge, Family Court,Jalgaon in Petition No.A-395/2019 on 5th April 2022 which wasfiled by the present respondent – wife. 2.It is not in dispute that marriage between the appellantand respondent was solemnized on 27th May 2011 at Jalgaon.3.The Petition was filed by the wife on the ground of cruelty.Though the learned Advocate for the appellant submits that theperusal of the Petition would show that it has been stated thatthe Petition has been filed under Section 13(1)(ib) of the HinduMarriage Act, 1955, which according to him is a wrong section,however we are of the considered opinion that the entirecontents are required to be considered to arrive at a conclusionunder which provisions of law the relief has been sought.Mentioning a wrong section in the title of the Petition will notaffect the jurisdiction and power of the Court to consider it underappropriate provision.4.We have heard learned Advocate Mr. Deshmukh appearing fca-37.223for the appellant – husband and learned Advocate Ms. Kaziappearing for the respondent – wife and perused the documentsproduced.5.It has been vehemently submitted on behalf of theappellant that though the marriage was solemnized on 27th May2011, there was absolutely no complaint by the wife regardingill-treatment. Now, at the time of Petition, wife came up with thestory that the husband is addicted to alcohol and then ill-treatedher. The learned trial Court ought not to have believed in thesame. The wife has admitted in the cross-examination that shehas left the company of the husband on her own and it has alsobeen confirmed by her father, who has been examined as awitness. In fact the husband had sent notice for restitution ofconjugal rights, which shows that he had desire to cohabit withthe respondent but for some obvious reasons it appears that thewife has left the house. Now, though the Appeal has been filedwithin limitation and respondent had notice of the same, still shehas performed second marriage, which is in violation. LearnedAdvocate for the appellant has relied on the decision in AnuragMittal vs. Shaily Mishra Mittal, (2018) 9 SCC 691, wherein it has fca-37.224been observed that the Hindu Marriage Act is a social welfareand beneficent legislation and must be interpreted in mannerwhich advances object of legislation since it intends to bringabout social reforms. Court cannot interpret socially beneficiallegislation on basis as if words therein are cast in stone. Objectof Section 15 of the Hindu Marriage Act is to provide protectionto persons who have filed appeal against decree of dissolution ofmarriage and to ensure that said appeal is not frustrated. Thelearned Advocate therefore, submits that taking intoconsideration the subsequent events also the Appeal deserves tobe admitted. 6.Per contra, the learned Advocate for the respondentsubmitted that the trial Court has not erred in appreciation ofevidence and merely because there was no complaint filed underSection 498-A of the Indian Penal Code it cannot be said thateverything was going smoothly. The wife specifically stated thatthe husband was addicted to liquor and other vices as well as hewas addicted to gambling. Under the influence of liquor thehusband used to assault the wife. They have no issue out of themarriage and therefore, she was insulted for not bearing child. fca-37.225This allegation has been then supported when offence came tobe registered against the appellant. Copy of the charge-sheethas been produced on record, which shows that husband wasinvolved in offence under Section 12-A of the MaharashtraPrevention of Gambling Act. Even non-cognizable offence cameto be registered on 14th August 2019 when wife was threatenedby the appellant. After the decree was passed, which is aJudgment in rem, the respondent has performed marriage on14th May 2022. The notice of the Appeal was received by therespondent in July 2022 and thereafter she caused appearancein the matter. No stay was granted by this Court when noticewas issued. Now respondent is totally settled in her life afterperforming the marriage.7.At the outset, we would say that if the material is found toadmit the Appeal then only the question of the second marriageduring the appeal period and interpretation of Section 15 of theHindu Marriage Act will come into play. Here, it appears thatboth the parties have led oral evidence as well as documentaryevidence. We agree with the statement on behalf of the wife thatmerely because no complaint has been filed about the ill- fca-37.226treatment, that does not mean that the relationship was good orthere was no cruelty to the wife. When the wife had come to theCourt seeking decree for dissolution of marriage on the groundof cruelty, the burden was on her to prove the same. The ill-treatment was on the count, as per the contention of thepetitioner – wife that the husband was addicted to liquor,gambling and also consuming Bhang. Secondly, the cruelty wason the count of insulting the wife on the ground that she has notbegotten a child and therefore calling her as ‘infertile’. She isspecific in stating that she left the matrimonial home, initiallyabout four months prior to the Petition but she was asked by herfather to resume the cohabitation and therefore she returned tothe matrimonial home. But again the husband started acting inthe same way and therefore, since about 1½ months prior to thePetition she was staying with her father. It is to be noted that inthe cross-examination, wife has admitted that her father isresiding nearby to the matrimonial home. Father also used tovisit her material home and she was also visiting the house ofher father. But the cross-examination does not indicate that sheused to stay with her father for longer times. Visit to father’shouse is, therefore, natural. Wife has specifically denied that fca-37.227when she was residing with her father, husband had come tofetch her 3 to 4 times for cohabitation. She has specificallystated that husband had come under the influence of liquor toquarrel with her. 8.Now objection has been taken regarding the charge-sheetunder the Maharashtra Prevention of Gambling Act against thehusband, as it is the even after the presentation of the Petitionand therefore, it could not have been considered. We do notagree with the said submission. The charge-sheet was filed tosupport the allegation that husband was addicted to gambling.Though the alleged event has taken place later on, yet itsupports contention of the respondent and for that purpose thecopy of charge-sheet was filed. It also further appears that wifehad filed complaint against the husband for threatening her andcase has been registered vide Crime No.769 of 2019 for offenceunder Sections 294, 323, 506 of the Indian Penal Code and thesaid fact is admitted by the husband. 9.Objection has also been taken for not appreciating theadmission given by the wife and her father that the wife is fca-37.228residing with father on her own wish and has no intention toresume cohabitation. The alleged admission cannot be read inisolation. The wife as well as her father have specificallyexplained that since there was fear in the mind of the wife abouther life, she was not resuming cohabitation. As regards addictionto liquor is concerned, except denial or word against word thereis nothing. But the question still remains as to why the wifewould raise the said point after eight years of marriage. Hersufferance in silence cannot be considered against her. Thecross-examination of the wife taken on behalf of the husbandalso makes a mention that the husband had asked for pardon.The question then arises, for what purpose he had asked forpardon. It can also be seen from the examination-in-chief of thehusband that he has also raised allegations against the wife,mainly in respect of her behaviour. It is alleged that the wifewas not doing any work or rather used to sleep, used to usemobile continuously and that she was short tempered and usedto quarrel on petty issues. It can then be said that the husbandis also making these allegations after eight years of marriage.Therefore, the appreciation of evidence as done by the learnedJudge of the Family Court appears to be correct. Merely because fca-37.229a second view is possible, we need not go into those allegations.Therefore, the Appeal deserves to be dismissed at the admissionstage itself. 10.When the Appeal is not worth admission also, we need notgo into the aspect of interpretation of Section 15 of the HinduMarriage Act. No doubt, it can be certainly said that the wifeought to have waited for the appeal period to over forperforming the second marriage, but then when the notice wasissued, there was no stay to the operation and implementation ofthe decree that was passed. Of course, the notice has beenissued when present respondent had already performed themarriage and it appears that it was not known to the husband.Before parting, we would like to say that there was an attemptby this Court to have some settlement between the parties,taking into consideration the fact that the respondent hasalready married. However, a compromise could not take placeand therefore, we had taken up the matter for hearing at thestage of admission itself by giving an opportunity to both thesides. fca-37.221011.For the aforesaid reasons, the Appeal stands dismissed atthe admissions stage.12.In view of the dismissal of the Appeal itself, nothingsurvives for consideration in the Civil Application. The CivilApplication, therefore, stands disposed of.[S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/JAN24