Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR
Smt. Vasanti A. Naik & V.K. Jadhav, JJ.
Shri Manoj s/o Madhukarrao Pate ..... Appellant
Versus
Sou. Vijaya w/o Manoj Pate ..... Respondent
First Appeal No.547 of 2009, 129 of 2010
Decided on : 11th July, 2014
In this background, it would not be necessary for us to consider whether the provisions of Order XXIII, Rule 1(4) of the Code of Civil Procedure would strictly apply to matrimonial proceedings or not. On the basis of the pleadings in the second petition filed by the husband, it is clear that the husband was not precluded from instituting a second petition as the same was not based on the cause of action that accrued to the husband on the date of filing of the first petition on 31.8.2004. That the second petition filed by the husband for grant of a decree of divorce was maintainable and was not barred by the provisions of Order XXIII, Rule 1(4) of the Code of Civil Procedure. The judgments in Smt. Anandi Devi v. Raja Ram, AIR 1973 Raj 94 and Smt. Manjit Kaur v. Gurdial Singh Gangawala, AIR 1978 P&H 150 and relied on by the counsel for the wife cannot be made applicable to the facts of this case. In those reported decisions, the cause of action for instituting the first petition and the second petition was the same and in that background, the Courts had held that the party withdrawing the first petition without leave was precluded from filing a second petition on the same cause of action. The first point for determination is, therefore, answered in the negative and in favour of the husband.
Hindu Marriage Act, 1955 - Section 13 Petition for divorce. Judgment of Family Court, dismissing petition for divorce filed by husband, without appreciating evidence on record, cannot be sustained. It is observed by the Family Court that in the report to the police dated 23.8.2004, there was no mention of the demand by the husband for a sum of Rs. 1,00,000/- and the mention of the said fact in the subsequent complaint dated 20.9.2004 by the wife was an afterthought. The Court observed that the wife was making baseless allegations against the husband, which justify the act on the part of the husband in living separately from the wife. Also the Court has observed in para 28 of the judgment that the husband has grave and weighty reasons for living separately from the wife. Court failed to understand what was passing in the mind of the Court while dismissing the petition filed by the husband for grant of decree of divorce. If the Family Court was clearly of the view that the wife had made baseless complaints against the husband and his mother and the allegation in respect of demand of Rs. 1,00,000/- was an afterthought, Court failed to understand what prevented the Court from granting a decree of divorce after holding that the conduct of the wife was such, which compelled the husband to stay separately. If the Court has observed that the husband was compelled to stay separately, because of the conduct of the wife and there were grave and weighty reasons for doing so, it should have been an ideal case for granting a decree of divorce. However, the Family Court, without appreciating the evidence tendered by the parties in the right perspective, as dismissed the petition filed by the husband on the ground that the husband had failed to prove that the wife had treated the husband with cruelty. Court found from the pleadings in the petition filed by the wife for restitution of conjugal rights that the wife has all sorts of grievances against the husband. If the serious allegations levelled by the wife against the husband in the petition for conjugal rights were to be true, no wife would have thought of staying with such a man under one roof. On the basis of the evidence, this is a fit case for grant of decree of divorce, as the husband has clearly proved that the wife has treated him with cruelty of such a nature which made it impossible for him to continue the marital relations.
(Per Smt. Vasanti A. Naik, J.)
Since both these appeals arise from the common judgment of the Family Court, Nagpur dated 15.4.2009 and similar issues arise for determination in the same, they are heard together and are decided by this common judgment.
The appellant in First Appeal No.547 of 2010 is the husband of the appellant in First Appeal No.129 of 2010. The parties are legally wedded husband and wife and their marriage was solemnized on 2931998 at Indraprastha Mangal Karyalaya according to the Hindu rites and customs. It is not in dispute that after the solemnization of the marriage, the parties started residing in the house of the husband at Ujjawal Nagar, Nagpur and thereafter shifted to Bhusawal. Two children are born from the wedlock namely Kum.Rachita, who was aged about 5 years at the relevant time in the year 2005 and son Ayush, who was then aged 2 years. Both the children are residing with their mother, the appellant in First Appeal No.129 of 2010.
In the year 2005, the wife filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. It is pleaded in the said petition that the parties resided together in Nagpur for a period of about 6 to 7 months and during that stay, the wife was harassed and tortured mentally and physically by the mother of the husband. It is pleaded in the petition that the mother of the husband, i.e. the mother-in-law of the wife had ill-treated her and harassed her mentally and physically when she visited Bhusawal on a couple of occasions. It is pleaded in the said petition that the husband and his parents had demanded and accordingly, the parents of the wife had paid an amount of Rs.75,000/- to the husband as dowry. It is pleaded that gold ornaments, colour television, various valuable articles were presented to the husband at the time of solemnization of the marriage. It is pleaded that though so many items were gifted to the husband and his family, the parents of the husband unnecessarily harassed the wife. It is pleaded by the wife that the mother-in-law used to provoke the husband and he used to ask the wife to bring money from her parents. It is pleaded that if the wife refused to do so, the husband used to mercilessly beat the wife by fists, kicks, utensils, sticks, etc. It is pleaded that the husband had once had a fall and he received minor injuries to his leg. It is pleaded that when this incident occurred in March, 2004, the mother-in-law came to Bhusawal and abused the wife, as according to her, the wife was responsible for the said incident. During the stay of the mother-in-law for a period of 7 days at that time, she regularly abused the wife and asked her to bring money from her parents. It is pleaded that on 01/04/2004 the mother-in-law had instigated the husband and on the provocation, the husband had beaten up the wife mercilessly and pushed her on a wall by holding her hair and also throttled her neck as a result of which she fell unconscious and suffered injuries to her head and other parts of the body. It is pleaded that the parents of the wife had visited Bhusawal to see the condition of the husband as well as the wife.
However, as soon as they entered the house at Bhusawal, the mother-in-law said that the parents of the wife have four daughters and if one of them dies, they should not be bothered. Certain other allegations are levelled against the mother-in-law by the wife and it is also pleaded that while leaving Bhusaval on 442004 for Nagpur, the mother-in-law threatened the wife that she would not spare her and would take revenge. It is pleaded that the husband had beaten the wife during the period from 152004 to 552004 by fists, kicks and sticks and directed her to leave the house. The wife was said to have been mercilessly beaten on 552004.
It is pleaded that on 1252004 the husband dropped the wife and the children to her parents' house in Nagpur. It is pleaded that when the wife had been to the residence of the husband
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
