IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

906 SECOND APPEAL NO.89 OF 2020

WITH

CIVIL APPLICATION NO.2442 OF 2020

DILIP JIJABAPU ZINJURDE

VERSUS

SAVITA DILIP ZINJURDE

...

Mr. S.S. Chapalgaonkar, Advocate for the appellant

...

CORAM : SMT. VIBHA KANKANWADI, J.

DATE :

11^th AUGUST, 2021.

ORDER :

1

Present appeal has been filed by the original petitioner to

challenge Judgment and Decree passed by learned District Judge-1,

Kopargaon, Dist. Ahmednagar in Regular Civil Appeal No.08/2012, thereby

the appeal filed by the present respondent-original respondent came to be

allowed on 04.12.2019 and thereby the decree of divorce passed by the Trial

Court came to be set aside by dismissing the petition.

2

Present appellant-original petitioner filed Hindu Marriage

Petition No.28/2004 before Civil Judge Senior Division, Kopargaon for

2

SA_89_2020

divorce on the ground of cruelty and desertion. The said petition came to be

allowed on 05.12.2011 and, as aforesaid, the appeal filed by the original

respondent-wife came to be allowed by the First Appellate Court, thereby

setting aside the Judgment and Decree passed by the Trial Judge. Hence, this

Second Appeal.

3

Heard learned Advocate Mr. S.S. Chapalgaonkar for the

appellant. In order to cut short, it can be said that he has argued in support

of his contentions.

4

It is not necessary to issue notice to the respondent, unless the

appellant shows that substantial questions of law are arising in this case, as

contemplated under Section 100 of the Code of Civil Procedure, 1908,

requiring admission of the Second Appeal.

5

It is not in dispute that the marriage between the parties i.e.

husband and wife got solemnized on 19.01.1995, as per Hindu rites and they

have three children out of the wedlock.

6

The petitioner-husband had contended that the acts of the wife,

that is, quarreling on petty issues, leaving him oftenly, insulting him, filing

criminal cases against him and staying away from him since prior to

04.03.2003 amounted to cruelty and desertion. The respondent denied all

3

SA_89_2020

the averments and she submitted that the petitioner addicted to liquor and

used to ill-treat her. She as well as children were beaten by the petitioner on

03.03.2002 and were driven out of the house. Notices were sent for creating

of evidence. She had replied one of the notices. She started cohabitation

with the petitioner for the betterment of the children, however, again there

was harassment by the petitioner under the consumption of liquor. When she

was beaten mercilessly, she had to file report with Rahta Police Station. So

also, she had filed petition for getting custody of the children.

7

The learned Trial Judge found that evidence led by the petitioner

is sufficient to prove that the respondent had behaved with cruelty with the

husband and there is desertion by the wife. However, the same facts and

evidence has led to the First Appellate Court to give the findings in the

negative. Merely because the findings are not concurrent, that does not ipso

facto lead to the admission of the case and framing of substantial questions of

law, as contemplated under Section 100 of the Code of Civil Procedure 1908.

8

It appears that only two proceedings were filed by the wife

against husband; one was the case under Section 498-A of the Indian Penal

Code, wherein he was acquitted and another was Miscellaneous Application

No.2/2005 before Kopargaon Court for getting custody of the children. Per

se, acquittal from that case under Section 498-A of the Indian Penal Code will

4

SA_89_2020

not conclude that the wife was making false allegations. In order to show

that those allegations were false, more than some oral evidence was required.

Since the things happen within the four walls of the house between husband

and wife, the more possibility is in respect of oral evidence against oral

evidence. The question arises, who is then to be believed. Taking into

consideration th