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2015 Supreme(Bom) 2601
IN THE HIGH COURT OF BOMBAY
M.L. Tahaliyani, J.
Rohit Bhimsen Khurana - Appellant
Versus
Neha Rohit Khurana and others - Respondents
Second Appeal No. 869 of 2012
Decided On : 09-07-2015
For the Appellant :A.S. Khandeparkar, i/b Amogh Karandikar, Advocates
For the Respondents:Nitin P. Deshpande, Advocate
The main legal point established in the judgment is that in order to grant a divorce decree on the ground of cruelty under the Hindu Marriage Act 1955, there must be concrete evidence of cruelty, and mere allegations may not suffice.
Headnote:
Adultery - Divorce - Hindu Marriage Act 1955, Section 13 (1) (ia)
Fact of the Case:
The appellant filed a petition for divorce on the ground of cruelty under section 13 (1) (ia) of the Hindu Marriage Act 1955. The trial court granted the divorce decree, but the appellate court set it aside. The appellant then appealed to the second court.
Finding of the Court:
The trial court found in favor of the appellant, stating that the respondent had treated the appellant with cruelty and granted the divorce decree. The appellate court, however, found in favor of the respondent, stating that there was no evidence of cruelty and set aside the divorce decree.
Issues: The main issues were whether the respondent treated the appellant with cruelty and whether the appellant was entitled to a divorce decree.
Ratio Decidendi: The court found that there was no concrete evidence that the appellant was treated with cruelty by the respondent and therefore, he was not entitled to a decree of divorce on the ground of cruelty.
Final Decision: The second appeal was dismissed, and no order as to costs was given.
M.L. Tahaliyani, J.
This second appeal has been admitted by this Court (Coram : R.Y. Ganoo, J.) on 21st January, 2013 as following substantial questions of law are involved :
"(a) Whether the Appellate Court seriously erred in ignoring the allegations of adultery made by the Respondent wife, which could not be proved by her and that making of such allegation amounts to cruelty?
(b) Whether the Appellate Court is correct in ignoring the evidence brought on record by the Appellant husband which rightly proves that the Respondent wife has treated the Appellant husband in cruel manner?
(c) Whether the Appellate Court is correct in setting aside the Decree passed by the Trial Court when the findings and observations recorded by the Trial Court in respect of Issue No. 1 i.e. Whether Petitioner proves that Respondent has treated him with cruelty? and Issue No. 2 i.e. Whether petitioner is entitled for divorce from respondent? has not been challenged by the Respondent wife in her Memo of Appeal filed before the Appellate Court?
(d) Whether the Appellate Court was correct in setting aside the decree for divorce passed by the Trial Court, when the Respondent wife in the Memorandum of Appeal has not given a single ground for challenging the said decree of divorce. The entire appeal memo is only regarding Alimony.
(e) Whether the Appellate Court is right in coming to conclusion that if the parties led a normal sexual life even after a series of acts of cruelty by one spouse strongly showed that the parties had condoned their grievances which they had against each other?
2. The Appellant had filed a petition under section 13 (1) (ia) of the Hindu Marriage Act 1955 for grant of decree of divorce on the ground of cruelty. The petition was heard by Jt. Civil Judge, Senior Division, Panvel and was finally decided as HMP No. 82/2008 on 17-2-2011. The Trial Court passed the following order :
"1. The petition is partly allowed.
2. The marriage between the petitioner and opponent solemnized on 28th April, 1999 at Delhi, is hereby dissolved.
3. The prayer of possession of Flat No. J1203, Jalvayu Vihar Nargis Building, Sector 20, Plot No. 20, Kharghar, Nave Mumbai, and reentry in that flat, is dismissed.
4. In the peculiar circumstances of this petition, no order as to costs.
5. Decree be drawn up accordingly."
3. The Respondent took up the matter in appeal before the District Court, Raigad. The appeal was heard by the Adhoc District Judge vide Appeal No. 72 of 2011 and was decided on 18-7-2012. The appeal was allowed and judgment and decree passed by the Trial Court was set aside. The Appellant (original Petitioner) has moved this Court by way of the present second appeal.
4. Before I deal with the law points framed by this Court it is necessary to state the facts in brief that gave rise to the divorce petition and the evidence of both the parties. The Appellant Rohit and Respondent Neha got married on 28-4-1999. After the marriage they lived together at matrimonial home at Delhi. She had delivered two children out of the said wedlock. One on 6-8-2000 and another on 10-2-2006.
5. It was alleged by the Appellant before the Trial Court that the Respondent No. 1 was in habit of attending late night parties in Delhi. She used to ignore the advice given by the Petitioner and used to create scenes, if prevented from her attending the parties. It is alleged that the Respondent No. 1 is very short tempered and she has no respect for marriage and the family of the Petitioner. She used to become aggressive and abusive frequently. Few of the incidents have been mentioned by the Petitioner in para 3 of the petition indicating that Respondent No. 1 was of abusive nature and she was very short tempered.
6. The Appellant was holding Diploma as a Mariner and later on he had obtained a degree as Masters Mariner. It is thus, obvious that his duty was on the ship. It i
