Back
2019 Supreme(Bom) 1675
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
VIBHA KANKANWADI, J.
Sudarshan — Appellant
Versus
Sau Pallavi — Respondent
Second Appeal No. 124, 125 of 2017; Civil Application No. 2340, 2341 of 2017
Decided on : 11-09-2019
Advocate Appeared:
Sachin Deshmukh, Adv., Milind Patil, Adv.
Headnote:
Hindu Marriage Act - Section 9 – Claim of compensation – Divorce - Trial Court - With these admitted facts it is now required to be seen as to what case both the parties had put before the Courts below. The husband contended that, wife used to raise suspicion over his character and used to insult him by giving taunts. There were disputes between wife and the mother of the husband and under those circumstance the husband started residing with wife at - There was a quarrel between them on 16-08-2012. The cause for the quarrel was that, she was suspecting that husband had a affair with a girl in his Karate Coaching Class. After the arrival of wifes mother, the husband was abused him publicly and then the said complaint was lodged in which he was arrested and was detained overnight. Thereafter, again there was a quarrel between the husband and wife and during quarrel wife, in anger, made a statement that she has committed a blunder by performing second marriage with him. It was also told by her that, her first husband was very good – Held, period of limitation that is prescribed for filing such petition for declaration of divorce is one year and for that purpose the learned First Appellate Court has rightly considered Section 12 and 23 of the Hindu Marriage Act. The evidence on the point of knowledge adduced by the husband is absolutely not acceptable and it cannot prove that for the first time he came to know about the first marriage of wife on 02-02-2013 when the quarrel broke out between them. The learned Trial Court had not considered the said point in proper perspective and thus the petition filed by the husband for getting the marriage annulled is beyond the period of limitation - Important point to be noted is that, in the cross-examination husband admits that, he has two sons out of the said marriage. He has though denied the allegation about harassment by him to the wife yet he admits about the complaint lodged by the wife against him and then police allowing him his liberty on furnishing bond of good behaviour. He also admits that, wife used to come voluntarily to reside with him after the compromise when she had filed complaint with Womens Cell with the Police Station. He has also admitted that, twice before the Court when the talks of compromise were going on, the wife had stated that she wants to go back for cohabitation but then he has refused to take her back. Thus the conduct of the husband shows that, now he wants to get rid of the wife; so also the sons for a reason which was in fact in his knowledge, when he performed marriage with the wife but accepted the said divorce and then performed marriage. Therefore, though the wife had failed to prove the custom and she had leaving spouse when her marriage with the present petitioner had taken place, yet the petition will have to be dismissed on the ground that it is beyond period of limitation – Appeal dismissed
JUDGMENT :
Vibha Kankanwadi, J.
Both these appeals are between same parties. Present appellant is the husband who had filed Hindu Marriage Petition No.522 of 2013 (Old No.37 of 2013) before 3rd Jt. Civil Judge, Senior Division, Jalgaon for annulment of marriage under Section 11 read with Section 5(1) of Hindu Marriage Act. In the same petition, the wife - present respondent had filed counter claim for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. The said petition came to be allowed by the learned Trial Court on 20-12- 2014 and the counter claim was dismissed. Wife approached District Court by filing two separate appeals challenging the decree of annulment in one appeal and dismissal of her counter claim in second appeal i.e. by Regular Civil Appeal No.12 of 2015 and Regular Civil Appeal No.13 of 2015. By a common Judgment, learned District Judge -7, Jalgaon allowed the appeals on 27-10-2016, thereby setting aside the Judgment and decree passed by learned Trial Court in respect of declaration of marriage as null and void and then allowed the counter claim filed by the wife for restitution of conjugal rights. Hence, these second appeals. (Parties are now referred to as 'husband and wife').
2. Before turning to the disputed facts the admitted facts are that the husband and wife got married on 15-05-2007 at Manmad Tq.Nandgaon Dist. Nashik in Nageshwar Mandir as per Hindu rites. They have two sons out of marriage. After marriage the wife started residing with husband at Kolpewadi Tq. Kopargaon. It is also a further admitted position that, a complaint was lodged against husband by wife with Kopargaon Police Station and he was arrested. It is further an admitted position that, the wife had earlier married on 05-05-2005 at Wakod Tq. Jamner Dist. Jalgaon.
3. With these admitted facts it is now required to be seen as to what case both the parties had put before the Courts below. The husband contended that, wife used to raise suspicion over his character and used to insult him by giving taunts. There were disputes between wife and the mother of the husband and under those circumstance the husband started residing with wife at Kopargaon. There was a quarrel between them on 16-08-2012. The cause for the quarrel was that, she was suspecting that husband had a affair with a girl in his Karate Coaching Class. After the arrival of wife's mother, the husband was abused him publicly and then the said complaint was lodged in which he was arrested and was detained overnight. Thereafter, again there was a quarrel between the husband and wife on 02-02-2013 and during quarrel wife, in anger, made a statement that she has committed a blunder by performing second marriage with him. It was also told by her that, her first husband was very good. According to the husband he came to know about the first marriage of the wife for the first time on that day. Wife had never disclosed him about the first marriage and he was under impression that wife had never married earlier. Thereafter, he collected the information and came to know about wife's earlier marriage on 05-05-2005. Husband therefore says that, the wife had a living spouse at the time of his marriage with her and there was no legal divorce between the wife and her earlier husband. He had then contacted the first husband of the wife and came to know that the marriage between wife and earlier husband lasted for about 1 1/2 year. Wife had conceived from him but without his consent she had aborted that child at one hospital in Jalgaon. Therefore, the husband contends that the wife had intentionally concealed the information regarding her first marriage, and therefore, his marriage with her is null and void. He, therefore, sought declaration to that effect.
4. Wife filed written statement-cum-counter claim and denied all the averments adverse to her made in the petition. It was contended that, since 2008 she is residing with husband at Kopargaon. Husband had treated her properly f
