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2009 Supreme(Bom) 1271

High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE P.B. MAJMUDAR & THE HONOURABLE MR. JUSTICE R.V. MORE
Mrs. Deeplakshmi Sachin Zingade – Appellant
Versus
Sachin Rameshrao Zingade - Respondent
Family Court Appeal No.120 of 2009 with Civil Application No.174 of 2009
Decided on : 24-09-2009

Advocates appeared:
For the Appellant:Uday P. Warunjikar, Advocate.
For the Respondent:A.B. Avhad, Advocate.

Headnote:(A) Hindu Marriage Act, 1955-Section 13(1)(ia)-Divorce-It is not the law that even if the wife makes any legitimate grievance or complaint or even to pick up quarrel on a justifiable ground, then it amounts to cruelty to the other side-Even if there is some exchange of words, it cannot be treated as an act of cruelty. (Para 13)

       (B) Hindu Marriage Act, 1955-Section 13(1)(ia)-Divorce-Filing of the complaint itself is not an act of cruelty unless it is found by positive evidence that it was a false complaint-When the Act permits the wife to approach the Court under the provisions of Domestic Violence Act and if that remedy is availed of, such act should not be treated as an act of cruelty-A wife is also entitled to have her own freedom after marriage-Allegation about illicit relationship of husband-In such type of matters, there may not be any independent witnesses present, but, wife can be said to be the best witness-Having suspicion itself does not amount to cruelty Whether the allegation is false or not is a matter of investigation before other competent Court. (Paras 16, 18 and 19)

       

Judgment :-

P.B. Majmudar, J.


1. Admit. With the consent of the learned counsel appearing for the parties, appeal is taken up for hearing forthwith. Learned counsel for the respondent waives service.


2. This appeal is directed against the judgment and order passed by the learned Judge of the Family Court at Pune dated 29th May, 2009 in Petition No. A-230/2008 by which the learned Judge allowed the petition filed by the respondent and marriage between the petitioner and the respondent therein is dissolved by decree of divorce under Section 13 of the Hindu Marriage Act (hereinafter “the Act”). It is the aforesaid decree of the trial Court which is impugned at the instance of the appellant, original respondent to the said petition.


3. The respondent herein instituted the said petition under Section 13 (1) (ia) of the Act. It is the case of the respondent before the Family Court that the marriage between him and the present appellant was solemnised on 17th February, 2002 at Udgir, District Latur according to Hindi Vedic Rites. After the marriage, the appellant lived and cohabited with the respondent and there is one daughter out of the said wedlock namely Samiksha born on 8th October, 2003. It is the case of the present respondent that the parents of the appellant wanted ghar jamai and insisted that the respondent herein should shift to Latur and live with her parents to which the respondent did not agree. Thereafter, the parents of the appellant shifted to Pune and insisted that the respondent should shift to another house so that the parents of the appellant can live with them. It is also the case of the respondent that the appellant was having grievance about keeping the parents of the respondent with them. According to him, his mother is a cancer patient and his father is suffering from hypertension and heart ailments and, therefore, he cannot leave them. It is also the case of the respondent that the appellant would pick up quarrels everyday and she did not cook food for them and had levelled allegations against father of the respondent. The appellant also made allegations against the respondent that he is having affairs with a female colleague which led to frequent quarrels between them. She threatened even to file false complaint against him and his parents. The appellant also refused to cook the food and she was exhibiting her unhappiness at the time when the sisters of the respondent used to visit their house. It is also the case of the respondent that the appellant did not like any of the friends of the respondent or colleagues of the respondent who visit the house. It is also his case that in October, 2007, the parents of the appellant shifted to Pune temporarily. Mother of the appellant came to live in their house. She occupied the bedroom of the respondent and he was forced to sleep in the living room. It is also his case that on 3rd November, 2007, appellant filed a false case under the Domestic Violence Act and the appellant succeeded in making respondent to take another flat for her to live separately since 10th December, 2007. It is also the case of the respondent that the appellant is serving as a Lecturer in Women’s Engineering College at Pune and earning Rs. 20,000/- per month. On these and such other grounds, the petition for divorce was filed by the present respondent before the Family Court.


4. The aforesaid petition was opposed by the present appellant, who was respondent in the sad petition and a reply was filed by her at Exh. 15. It is the case of the appellant herein before the Family Court that she is cultured, educated and homely woman and that her brother is an Electronic Engineer who is able to take care of her parents. She denied the fact that she was having any desire that the respondent should be a Ghar Jamai and that she is always interested in the joint family and she never even insisted that the respondent should live separately from the parents. It is her case that she has always performed h
















































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