1. These proceedings by wife and husband respectively against each other raise a short legal point.

2. It is not in dispute that Gita was married to Chandrashekhar, an Advocate on 8-12-1985. Marital discord led Gita to seek maintenance under Section 125 of the Code of Criminal Procedure by an application made in the year 1987. By an order dated 19-11-1992, Gita was granted maintenance at the rate of Rs.500/-per month. In 1990, Chandrashekhar filed a petition for decree of divorce from Gita on the ground of cruelty. Decree of divorce was granted finality by judgment dated 1-3-2001 in Second Appeal No.129 of 1999 decided by Aurangabad Bench of this Court.

3. It may be useful to recount how this litigation proceeded. Petition for divorce by husband on the ground of cruelty was contested by wife, who also filed a counter-claim for restitution of conjugal rights. The Trial Court as well as the First Appellate Court rejected husband's claim for divorce and decreed wife's claim for restitution of conjugal rights, as may be seen from copy of decree in Hindu Marriage Petition No.76 of 1987 of Court of Civil Judge, Senior Division, Dhule, re-numbered as Hindu Marriage Petition No.2 of 1990 in the Court of Civil Judge, Senior Division, Nandurbar, which was included in the compilation filed by husband. In spite of the fact that the decree specifically recounts that wife had made a counter-claim for restitution of conjugal rights and had paid court fee of Rs.37.50 (37.50 ?) on the said counter-claim, which is also duly included in the bill of costs, a substantial question of law seems to have been raised in the following words as can be seen from para 6 of the judgment in Second Appeal :-

“(ii) Whether in the absence of any prayer for restitution of conjugal rights, it was open for the courts below to pass a decree for restitution of conjugal rights against the appellant ?”

4. The learned counsel for husband, arguing the Second Appeal, reiterated this, as may be seen from para 13 of the judgment. Up to para 31, the judgment recounts arguments advanced. In paras 32 to 35, there is discussion about disobedience to decree for restitution of conjugal rights operating as a bar for husband's getting decree of divorce. In para 36, the judgment considers ground of cruelty on account of false complaints. The Court observed that in Second Appeal, the Court would not re-appreciate evidence. The Court then proceeded to hold that both the Courts below had perversely held that cruelty was not proved, in the following words in para 37 :

“37. Another aspect of “mental cruelty” is with regard to the false allegation regarding impotency of appellant husband and making this allegation in public is also a serious act of “cruelty”. Therefore, I am of the clear view that both the lower appellate Courts have acted perversely in arriving at a finding that husband had failed to establish “cruelty” entitling him to a decree of dissolution of marriage, especially when the same is coupled with the factor of irretrievable breakdown of marriage over a long period.”

5. In para 39, about absence of prayer for restitution of conjugal rights, the Court observes as under :

“39. In this context, it will also be noted that both the Courts below had admittedly granted a decree for restitution of conjugal rights, without there being any prayer made in that behalf by respondent-wife, which substantial question of law also, I answer in favour of the Appellant.”

Ultimately, the Court granted decree of divorce on the ground of cruelty “coupled with the factor of irretrievable breakdown of marriage”.

6. This account of the litigation speaks volumes about the manner in which matters are conducted in this Court. Either there was really no counter-claim for restitution of conjugal rights by the wife, and in that case, the learned counsel for husband, who has placed copy of decree of Civil Court for my perusal, would have to ask himself if a wrong copy was placed before this C