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BOMBAY HIGH COURT
D. Dhanuka, J.
Chitra Sachin Mapara —Appellant
versus
Sachin Kumar Mapara —Respondent
Second Appeal No.349 of 2013 with Civil Application No.928 of 2013
Decided on 20.12.2016
For the Appellant:Mr. Uday Warunjikar Advocate with Akshay Deshmukh Advocate
For the Respondent:Ms. Seema Sarnaik i/b Mr. Harshad Sathe and Sourabh Bhutada Advocates
IMPORTANT POINT
If cumulative effect of acts of cruelty on part of one spouse on other spouse makes life of other spouse miserable and it is not possible for other spouse to stay with such spouse happily, a decree of divorce can be granted by Court on ground of cruelty.
Headnote:(A) Hindu Marriage Act, 1955—Sections 13 and 23(1)(a)—Divorce—If Court is satisfied that if any of grounds for granting relief exists and petitioner is in any way taking advantage of his or her own wrong or disability for the purpose of such relief except reliefs set out in said provisions, Court cannot grant such relief in favour of such party who has taken advantage of his/her wrong—No such case was made out by appellant before trial judge as well as before first appellate Court that respondent had taken advantage of his own alleged wrong or disability for the purpose of granting relief of divorce in his favour—Court not inclined to accept submission of appellant that two Courts below ought to have framed additional issues on ground that first appellate Court ought to have refused to grant relief of divorce in favour of respondent on ground of respondent allegedly taking advantage of his alleged wrong or to remand the matter to trial Court for framing such issue and to adjudicate upon the same. (Para 56)
(B) Hindu Marriage Act, 1955—Sections 13 and 13B—Divorce—Irretrievable break down of marriage—Although irretrievable break-down of marriage is not one of grounds indicated whether under Sections 13 or 13B of Hindu Marriage Act, 1955, for grant of divorce, said doctrine can be applied to a proceeding under either of said two provisions only where proceedings are before Supreme Court—Doctrine of irretrievable break-down of marriage is not available even to High Court which do not have powers similar to those exercised by Supreme Court under Article 142 of Constitution. (Para 60)
(C) Hindu Marriage Act, 1955—Section 13(1)(ia)—Divorce—Cruelty on part of wife—Prior acts of cruelty can be considered as condoned only if parties would have stayed together happily and past acts of cruelty on part of one spouse would have been pardoned by affected spouse so as to continue their life peacefully and happily and spouses would have restored their matrimonial life as was before commencement of acts of cruelty by one spouse on another—Though some of incidents of cruelty alleged by respondent against appellant were trivial in nature, Court has to consider overall behaviour and treatment of one spouse on other spouse and has to consider cumulative effect of such continuous act of cruelty while considering a petition for divorce—If cumulative effect of acts of cruelty on part of one spouse on other spouse makes life of other spouse miserable and it is not possible for other spouse to stay with such spouse happily, a decree of divorce can be granted by Court on ground of cruelty—First appellate Court was right in considering cumulative effect of all such incidents forming part of cruelty meted out by appellant upon respondent and his parents while passing a decree of divorce in favour of respondent and against appellant. (Paras 68, 69 and 73)
Result: Appeals disposed of.
D. Dhanuka, J.—Admit. Learned counsel for the respondent waives service. By consent of parties, second appeal is heard finally forthwith.
2. By this appeal filed under section 100 of the Code of Civil Procedure, 1908, the appellant has impugned the judgment and decree dated 4th May, 2013 passed by the learned District Judge–2, Kalyan, allowing Civil Appeal No.48 of 2012 filed by the respondent thereby setting aside the impugned judgment and decree dated 22ndDecember, 2011 in Marriage Petition No.260 of 2008, passed by the learned Civil Judge, Senior Division, Kalyan and allowing Marriage Petition No.260 of 2008 filed by the respondent inter-alia praying for dissolving the marriage between the appellant and the respondent solemnized on 7th December, 2002 and directing the respondent herein to pay monthly permanent alimony of Rs.15,000/- to the appellant herein and Rs.15,000/- to his daughter Komal regularly from the date of the said judgment and decree.
3. Following substantial questions of law are formulated :-
(I) Whether the Lower Appellate Court was justified in applying no default theory of divorce incorporated in irretrievable break down of marriage though it is not a ground for decree of divorce under the provisions of the Hindu Marriage Act ?
(II) Whether the Lower Appellate Court was justified in not framing the issue about section 23(i) (a) of the Hindu Marriage Act?
(III) Whether the findings recorded by the Lower Appellate Court were without appreciating the evidence recorded by the parties and were perverse ? Some of the relevant facts for the purpose of deciding this second appeal are as under :
4. The appellant herein was the respondent in the marriage petition before the learned Joint Civil Judge, Senior Division, Kalyan whereas the respondent herein was the original petitioner. The appellant and the respondent got married on 7th December, 2002 at Dombivli as per Hindu rites and customs. After their marriage, they started cohabiting at A/402, Silver Nest, Opposite to Vijaya Bank, Manpada Road, Dombivli (East). A daughter was born out of the said wedlock on 11th October, 2003, who has been now residing with the appellant (original respondent).
5. It was the case of the respondent that he had made it clear to the appellant that he being the only son of his parents, he would be staying with them. He purchased a flat on the second floor of the same building on 1st December, 2002, in which he was residing with his parents before his marriage, to the knowledge of the appellant. It was the case of the respondent that the appellant was however, not keen to stay with the parents of the respondent. The appellant and the respondent started residing together in A/402, Silver Nest, Opposite to Vijaya Bank, Manpada Road, Dombivli (East).
6. It was the case of the respondent that in the month of March, 2003, the appellant wanted to go to the house of her sister at Mulund. Since the festival of Holi was approaching, the respondent asked the appellant to go to her sister’s place some other time. The appellant however, started abusing him and insisted on going to her sister’s place. She stayed with her sister for about 4 days and once again insisted to go to her sister’s place after about a month. It was the case of the respondent that the appellant was trying to dominate him in their relationship and since the respondent did not want to displease her, he agreed to take her to her sister’s place. When the respondent informed about adamant behavior of the appellant to the parents of the appellant, her parents told him that they used to ignore her behavior and the respondent also should ignore it.
7. It was the case of the respondent that the behavior of the appellant towards him and his parents was atrocious. The appellant used to pick up fight with him and his family members frequently. She wanted to invite her parents in the matrimonial house frequently. On 11th October, 2003, a baby girl was delivered by the appe
