2016 Supreme(Bom) 1406
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
VASANTI A NAIK AND KUM. INDIRA JAIN, JJ.
Sau. Smruti - Appellant
Versus
Anant and Ors. - Respondents
FAMILY COURT APPEAL NO. 339/2014
Decided On : 21-10-2016
For the Appellant : Ms Deepali Sapkal.
For the Respondent: Mrs. Radhika Bajaj.
Headnote:Hindu Marriage Act, 1955 - Section 13(1)(i)-Grant of decree of divorce.-Husband levelled false and baseless allegations against wife, not entitled to grant of decree of divorce under Section 13(1)(i) of Act.
Section 13(1)(i) of Hindu Marriage Act stipulates that a marriage could be dissolved by a decree of divorce on a petition maintained either by the husband or the wife on the ground that either party; after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse.
There is neither a pleading in the petition in regard to voluntary sexual intercourse nor is a finding recorded by the Family Court that the wife had voluntary sexual intercourse with a person other than her husband. Neither has the husband pleaded in this regard nor has the Family Court rendered a finding to the aforesaid effect. The husband has levelled false and baseless allegations against the wife and he has failed to substantiate them either through his pleadings or by his evidence.
The case tried to be made out by the husband against the wife is a concocted case and the husband has maligned the image of the wife in the society by levelling false and baseless allegations that cast aspersions on the moral character of the wife. The Family Court has not considered the evidence in the right perspective and has, by a short judgment, which does not carry cogent reasons, granted a decree of divorce in favour of the husband under Section 13(1)(i) of the Act. In the circumstances of the case, the Family Court should have dismissed the petition filed by the husband with costs. The Family Court appeal is allowed. The petition filed by the husband for a decree of divorce under Section 13(1)(i) is dismissed with costs.
VASANTI A NAIK, J.
The family court appeal is ADMITTED and decided finally after perusing the original record and proceedings.
2. By this family court appeal, the appellant-wife challenges the judgment of the Family Court, Akola, dated 17.06.2013, allowing the petition filed by the respondent-husband for a decree of divorce under section 13(1)(i) of the Hindu Marriage Act on the ground that the appellant-wife had illicit relationship with the respondent Nos.2, 3 and 4 during the subsistence of her marriage with the respondent-husband.
3. The appellant-wife (hereinafter referred to as the “wife” for the sake of convenience) and the respondent-husband (hereinafter referred to as the “husband”) were married at Hiwarkhed in Akola district on 25.06.2000, according to the Hindu rites and custom. A girl named Khushi and a boy named Harsh were born from the wedlock. The parties resided together till 08.06.2012 at Akola. The husband then filed a petition for a decree of divorce under section 13(1)(i) of the Hindu Marriage Act on the ground that after the solemnization of the marriage, the wife had illicit relationship with the respondent Nos.2, 3 and 4. To the petition filed by the husband, the husband had joined the wife, Keshav Kale, Rajendra Bhakre and Gajanan Bele as respondent Nos.2, 3 and 4. In the said petition, it was pleaded that the wife behaved well with the husband for about seven to eight years after the marriage but, during the past two to three years before the filing of the petition on 24.08.2012, the wife became unchaste and developed illicit relationship with Keshav Kale, Rajendra Bhakre and Gajanan Bele. It is pleaded that Keshav Kale was a relative of the wife from her maternal side and, therefore, the husband did not suspect about any illicit relationship when Keshav Kale was visiting the matrimonial house and talking with the wife. It is pleaded that the husband became aware from the tenants to whom certain rooms of the house of the husband were rented that the wife had an illicit relationship with Keshav Kale. It is pleaded that after the husband warned Keshav Kale that he should not come to his house, Keshav Kale maintained relationship with the wife outside the house by visiting hotels and other places. It is pleaded that the tenants and other people had seen the wife and Keshav Kale in a compromising position. It is then pleaded that it was learnt by the husband from his friends that the wife had an illicit relationship with Rajendra Bhakre. It is pleaded that the wife used to call Rajendra Bhakre to the matrimonial home whenever the husband was out of the house for work. It is pleaded that the tenants had witnessed the wife and Rajendra Bhakre in a compromising position on many occasions. It is pleaded that though the husband scolded the wife and also appealed to her to stop the relationship, the wife did not mend her ways. It is then pleaded that the husband has a printing press and needs the services of an electrician. It is pleaded that Gajanan Bele, an electrician, used to come to his printing press and also to his house for electric repair work. It is pleaded that during this period, Gajanan Bele developed illicit relationship with the wife. It is pleaded that when the husband learnt about the said relationship and warned Gajanan Bele not to enter his house, Gajanan Bele stopped coming to the house of the husband. It is pleaded that Gajanan Bele then presented a mobile phone to the wife and both of them used to contact each other outside the house. It is pleaded that the wife and Gajanan Bele used to roam about in the city and the fact in regard to the illicit relationship between the wife and Gajanan Bele was informed by the husband to the mother of the wife. It is pleaded that the mother of the wife asked the husband to forgive her daughter and told him that she would behave well in future. It is pleaded that the wife, however, did not change her ways. It is pleaded that the husband asked the wi