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BOMBAY HIGH COURT
M.L. Tahaliyani, J.
Rohit Bhimsen Khurana —Appellant
versus
Advocate Neha Rohit Khurana
and Ors. —Respondents
Second Appeal No.869 of 2012
Decided on 9.7.2015
Counsel for the Parties:
For the Appellant:Mr. A.S. Khandeparkar, i/b Mr. Amogh Karandikar, Advocate
For the Respondents:Mr. Nitin P. Deshpande, Advocate
IMPORTANT POINT
Marriage cannot be dissolved on ground of stray incidents.
Headnote:Hindu Marriage Act, 1955—Section 13(1) (i-a)—Divorce—Cruelty on part of wife—No reasonable explanation is given as to why father or mother of Appellant could not deposed in support of evidence of their own son—Parents of Appellant had been attending Court throughout hearing of Second Appeal—There are lot of stray incidents mentioned by Appellant in his evidence to demonstrate that he was subjected to cruelty—Such incidents take place in many of families—There is no evidence to come to conclusion that on a particular date Respondent was drunk or had excess liquor and had come to house at a particular time—Socialising to some extent in present society is permissible—Both of them appeared to be in nature of socialising and were in habit of enjoying parties—Itt cannot be concluded that Respondent had subjected Appellant to cruelty, either physical or mental—Appellant and Respondent lived reasonably normal life after resumption of their marital relations—Appeal dismissed. (Paras 17 to 27)
Result: Appeal dismissed.
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 1722011. 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 lateron he had obtained a degree as Masters Mariner. It is thus, obvious that his duty was on the ship. It is stated by him in the petition that on 29-5-1999 he took the Respondent No.1 on the sh
