False criminal complaints by a spouse constitute cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, justifying divorce.

JUDGMENT :

(Per G.S. Kulkarni, J.)

1. This Family Court Appeal is directed against the judgment and decree dated 5 March, 2018 passed by the learned Judge, Family Court, Thane in Petition No. A-22/2012 whereby the decree of divorce filed by the respondent- husband on the ground of cruelty came to be allowed in terms of the following order:

“ORDER

“1. The petition is allowed.

2. The marriage between Rajendra (petitioner/husband) and Vaibhavi (respondent/wife) which was solemnized on 02.03.2006, is hereby dissolved by decree of divorce w.e.f. the date of decree.

3. The respondent shall bear her own costs and shall pay the costs of petitioner.

4. Copy of judgment be given free of costs to both the parties as per Sec.23(4) of the Hindu Marriage Act, 1955.

5. Decree be drawn accordingly.”

2. At the outset, we may observe that the present appeal which today is listed for admission, although was filed on 1 August, 2018. There was no stay to the impugned judgment and decree by which the marriage between the parties have been annulled. It is informed by learned counsel for the appellant that in the meantime, the respondent has remarried. The appellant is also aware and conscious of the respondent having remarried. The scope of the present proceedings does not exceed the challenge, to the impugned judgment and decree which would have nothing to do with the second marriage of the respondent. In the facts and circumstances of the case, learned counsel for the parties would not dispute that even assuming the appeal is to be admitted and heard finally, adjudication of this appeal would be academic, as the second marriage of the respondent cannot be disturbed in the present proceedings. In fact this is not even the case of the appellant. The proceedings needs to end at this.

3. Be that as it may, for the sake of completeness, in the context of the challenge as raised in the appeal we may observe that the only objection as urged on behalf of the appellant in assailing the impugned judgment and order passed by the Family Court is to the observations made by the Family Court in paragraph 34 of the impugned judgment. The respondent’s case for a decree of divorce on the ground of cruelty against the appellant, was to the effect that the appellant had lodged a false prosecution against the respondent, under the provisions of Section 498A of Indian Penal Code. The observations of the Family Court in paragraph 34 of the impugned judgment reads thus:

“34. Admittedly, the parties separated in the year 2006. Till today, the respondent has persuaded her criminal case. The evidence shows that respondent was unsuccessful before Trial Court and First Appellate Court. It is necessary to note here that the learned advocate for petitioner made statement at the bar that he had not received any notice from the Hon’ble High Court about any appeal filed by the respondent against acquittal of petitioner in criminal case. The respondent only mentioned that she has filed appeal before the Hon’ble High Court. She has not mentioned the case number or given any details. In such circumstances, it can be said that the respondent was never interested to continue relation, therefore, the evidence on record is sufficient to prove about ingredients of matrimonial offence namely ‘desertion’. Hence, I answer this issue in affirmative.”

4. Learned counsel for the appellant would submit that the aforesaid observations are not correct for the reason that the appellant had challenged the orders which were passed by the Sessions Court before this Court in the year 2014 and that such proceedings were pending before this Court. The learned counsel for the appellant however is not in a position to make out any case to dispel the findings as recorded by the Family Court on cruelty which are to the effect that appellant had falsely lodged a prosecution against the respondent under Section 498A of the IPC, with a purpose not to bring home the guilt of the respondent, but merely to change the behavio