2019 Supreme(Bom) 673

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
VIBHA KANKANWADI, J.
Satish Dhudku Halnor - Appellant
Versus
Yogita Satish Halnor - Respondent
Second Appeal No. 407 of 2018
Decided On : 22-04-2019

Headnote:

Penal Code, 1860 – Sections 498, 494, 34 – Guardian and Wards Act – Section 24 – Code of Criminal Procedure, 1973 – Sections 97, 125 – Hindu Marriage Act, 1955 – Section 13 – Dissolution Of Marriage – Present appeal has been filed by the original petitioner-husband challenging the concurrent Judgment and Decree against him. – He had filed Hindu Marriage Petition before 2nd Joint Civil Judge Senior Division, Jalgaon under Section 13 (1) (ia) and (ib) of Hindu Marriage Act, 1955 for dissolution of marriage. – It is not in dispute that petitioner and respondent are the husband and wife and their marriage was solemnized on 11.12.2001 as per Hindu rites and customs. – They have son by name Anand. – Petitioner was employed in police even prior to the marriage. – It is also not in dispute that petitioner had issued notice for dissolution of marriage to the respondent and it was replied by the respondent. Petitioner had filed Marriage Petition for dissolution of marriage, but then it was compromised. – It is also not in dispute that the respondent-wife had lodged First Information Report for the offence punishable under Section 498-A of the Indian Penal Code against the petitioner and his family members. – It was compromised during the pendency of the said criminal case. In spite of the settlement of the dispute, she lodged report again for the offence punishable under Section 498-A read with Section 34 and Section 494 of the IPC – Further, it is not in dispute that the petitioner and his family members have been acquitted from the said criminal proceedings. Another criminal proceeding was filed by the father of the respondent under Section 97 of Cr.P.C. for custody of the respondent against the petitioner. – That application was disposed of. Respondent-wife had also filed application under Section 24 of the Guardian and Wards Act for custody of son Anand. – That application was dismissed. She has also filed application for maintenance under Section 125 of Cr.P.C. against the petitioner. – Respondent-wife has also filed a complaint under Section 323, 504 of I.P.C. against one Sonyabapu Deoram Thorat, who is the relative of the husband. – Father of the respondent has also filed a private criminal complaint against petitioner and his relatives under Section 498-A read with Section 34 of the IPC vide complaint case – One more application has been filed by the respondent-wife for various reliefs under Domestic Violence Act and it is pending before Judicial Magistrate First Class, Pimpalgaon, Tq. Niphad, Dist. Nashik. – Held, Only fact is that whether the facts of the present case depicts such legal position or not. – As regards search warrant taken out by the father of the respondent, it is to be noted that the search warrant was issued and this fact is admitted by the husband in his cross-examination. – Witness Hiraman is the father of wife and in his cross-examination he has stated that say was filed by the husband to the application under Section 97 of Cr.P.C. and in that say it was mentioned by the husband that his wife is in the house of this witness i.e. her fathers house. – No doubt, that application was dismissed. – But the cross-examination of this witness does not show that he has admitted the fact that the daughter was with him and yet he proceeded to file application under Section 97 of Cr.P.C.. – Therefore, it cannot be said that the said application was frivolous. – As regards application under Section 24 of the Guardian and Wards Act is concerned, what was prayed by the wife was to have custody of the child though the child was with her. – Section 24 of the Guardian and Wards Act provides duties of guardian of the person. – At the most, it can be said that she wanted to get herself declared as guardian of the said ward. – Under such circumstance, that act also can not be stated as an act to harass or cause mental cruelty to the husband. – She has also filed litigation for maintenance to which she was entitled to, since the husband has not claimed that he had made provision for her maintenance. – Same is the case as regards her application under Domestic Violence Act. – Therefore, mere filing of these proceedings ipso facto will not amount to "cruelty" as contemplated under Section 13 of the Hindu Marriage Act. – One more aspect was tried to be argued that since last so many years i.e. from 2002 the parties are residing separately and there is absolutely no possibility of their cohabitation. – The Trial Court ought to have granted divorce. – The husband in this case has not made out the case for irretrievable break down of marriage. – It is by his own acts he is keeping the wife away. – Further in his cross-examination he had categorically stated that he is not willing to take the wife along with him. – Under such circumstance, when he has no desire, it cannot be said that there is irretrievable break down of marriage. – Second Appeal Dismissed