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2019 Supreme(Bom) 157

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
Vibha Kankanwadi, J.
X – Appellant
Versus
Y – Respondent
Second Appeal No. 305 of 2016
Decided On : 20-02-2019

Advocates Appeared:
P.P. Dhorde, D.S. Kudle.

Headnote:

Hindu Marriage Act, 1955 - Section 13(1) - Indian Penal Code, 1860 - Section 498-A - Petitioner is borrowing money from moneylender – Harassing - Petitioner is a drunkard - Mental cruelty for husband - Petitioner had come with a case that after three to four years of marriage respondent started visiting to house of her parents two to three times in a year and used to reside there for about three months - When petitioner made enquiry he came to know that respondent had married earlier and from her earlier marriage she had two children - However petitioner was unaware about said fact - When he asked about same to respondent she avoided to give answer and used to say bad words to him - Held, Such allegations per se cannot tantamount to inflicting cruelty are unacceptable - Allegations merely on basis of suspicion is a different thing and if there was any kind of truth in those allegations then respondent ought to have supported same with some evidence - When that opportunity was available to her to lead evidence she has not taken that opportunity - Under such circumstance without any evidence if such statements are made they amount to mental cruelty - Respondent has examined herself only and has not adduced any evidence to support her allegations that petitioner is a womanizer petitioner is borrowing money from moneylender and then he was harassing her on count of money and petitioner is a drunkard - When these allegations have not been supported by any evidence, definitely they would amount to mental cruelty for husband – Order Accordingly.

JUDGMENT :

Vibha Kankanwadi, J.

1. Present appeal has been filed by original petitioner husband who had filed petition for divorce under Section 13(1) (i-a) of Hindu Marriage Act bearing Hindu Marriage Petition No. 155 of 2006 before 2nd Joint Civil Judge, Senior Division, Jalgaon. The present respondent is the original respondent wife.

2. It is an admitted fact that, the marriage between petitioner and respondent took place at Solapur in a Mass Marriage Program as per Hindu customs and rites on 16.12.1999. It is also admitted that, after marriage petitioner was transferred to Jalgaon, and petitioner and respondent both started residing at Jalgaon since June 2000. It is also not in dispute that, for about three to four years immediately after the marriage there was no dispute between them.

3. The petitioner had come with a case that, after three to four years of marriage, the respondent started visiting to house of her parents two to three times in a year and used to reside there for about three months. When petitioner made enquiry, he came to know that the respondent had married earlier and from her earlier marriage, she had two children. However, petitioner was unaware about the said fact. When he asked about the same to respondent, she avoided to give answer and used to say bad words to him. Petitioner came to know that, one Suresh Jagtap was her first husband. Respondent went to her parents at the time of Diwali of 2004 and she did not returned for about three to four months. After she came to down to Jalgaon she resided for a month and then again went to her parents house and again resided there for about three to four months. Respondents started giving false complaints against him to the police station as well as in the hospital of the petitioner. She also started demanding money in presence of servants and also her share in the petitioner's property. She used to give threats that, she would commit suicide by pouring kerosene on her person if share in the property is not given. Petitioner then told her that, they should take divorce by mutual consent. It was also decided that, the petitioner would give a car to respondent, amount of Rs. 1 lakh and a plot in Mamurabad Shivar. It is stated that, respondent took away her ornaments and documents without his consent. Respondent has harassed him mentally as well as physically by making false complaints against him, and therefore, on the ground of cruelty he prayed for divorce.

4. Respondent resisted the petition by filing written statement. It is stated that, prior to the marriage there was a love affair between her and the petitioner. Petitioner had knowledge that, she has two sons from her earlier marriage. He accepted that she should look after her children by going oftenlly to meet them. In fact he had also agreed to maintain her children also. He had given amount of Rs. 10,000/- to her towards maintenance of children. In fact she was also serving and contributed to the family income for purchasing two wheeler and four wheeler. However, both the vehicles are in the name of petitioner. It is stated that, petitioner is a drunkard and has habit of spending more. He had physically and mentally harassed her for money. She was sustaining the harassment in a ray of hope. It is stated that, the petitioner is a womanizer. Parents of the petitioner had demanded dowry. She was physically harassed by not providing food and by driving her out of the house. Petitioner had incurred huge debts from moneylender Uday Digamber Khande. It is also stated that, the petitioner has illicit relations with a lady by name Sarita. Petitioner used to give money to Sarita by taking it from respondent. He also used to give false notices for giving divorce to her, and therefore, she contended that the petition should be dismissed.

5. With these rival contentions issues came to be framed, parties went to trial. After hearing both the sides and perusing the evidence on record, the learned trial Court allowed the
































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