- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION FAMILY COURT APPEAL NO.12 OF 2002 Monindarpalsinha N. Kochar, ) age 50 years, Occupation - Service, ) R/o.4/15, Anand Housing Society, ) Shankar Seth Road, Pune 37. ).. Appellant Versus Jyotindar Kaur Mohindarpal N.Kochar, ) age 42, Occ: Business, ) R/o.Kalyan Sing Sahani, ) RB 11/1 Salunkhe Vihar, ) Kondhwa, Pune 38. ).. Respondent -- Ms Neeta Karnik for the appellant. Shri D.P.Guchiya for the respondent. -- CORAM : R.M.S.KHANDEPARKAR & ANOOP V. MOHTA, JJ. DATED : 20TH JUNE, 2005. JJJUUUDDDGGGMMMEEENNNTTT ::: ((( PPPEEERRR RRR...MMM...SSS...KKKHHHAAANNNDDDEEEPPPAAARRRKKKAAARRR,,, JJJ ))) 1. Heard. This appeal arises from the judgment dated 26th November, 2000 passed by the Family Court, Pune, in Divorce Petition No.926 of 1995 filed by the appellant-husband against the respondent-wife. By the impugned judgment, the petition for divorce was dismissed while granting permanent alimony to the respondent at the rate of Rs.1,000/- per month. The - 2 - divorce was sought on the ground of desertion and cruelty comprised under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955. 2. The marriage between the appellant and the respondent took place on 29th August, 1993. The respondent went to her parent’s house on 24th December, 1993. On 22nd September, 1994, the respondent-wife filed petition for judicial separation being Petition No.656 of 1994. The respondent lodged complaint against the appellant and his parents under Section 498A of I.P.C., wherein, the appellant and his parents were arrested and prosecuted under the said provision of law in the Criminal Case No.356 of 1994. The fact regarding the complaint and arrest of the appellant and his parents was published in the newspapers - "Aaj Ka Anand" and "Sakal" on 27th September, 1994. The petition for judicial separation No.656 of 1994 came to be dismissed by the Family Court, Pune, by its Order dated 28th July, 1995. The appellant filed the petition for divorce being Petition No.926 of 1995 on 28th December, 1995 on the grounds stated above. After recording the evidence, the petition for divorce filed by the appellant came to be dismissed by the impugned judgment dated 26th November, 2000. The present appeal was filed on 2nd - 3 - February, 2001. During the pendency of this appeal, on 23rd December, 2002, the learned Magistrate disposed of the Criminal Case No.356 of 1994 and acquitted the parents of the appellant and convicted the appellant under Section 498A of the I.P.C. The matter carried in appeal by the appellant being Criminal Appeal No.29 of 2003, which came to be filed on 20th January, 2003, and the same was disposed of on 7th May, 2004 thereby acquitting the appellant. Meanwhile, the respondent had also filed the petition for maintenance of Rs.10,000/- per month and Rs.8 lakhs for purchasing a house, besides the petition for Stridhan being Petition No.7 of 2002, and they are stated to be pending before the Family Court, Pune. 3. It is the contention of the appellant that the respondent deserted the appellant and left the matrimonial house since 24th December, 1993 and proceeded to her parent’s house and she never returned to stay with the appellant. It is his further contention that the fact about desertion from 24th December, 1993 has been clearly admitted by the respondent in her testimony before the family Court in the proceedings for judicial separation filed by her and further the said fact has been confirmed in the judgment of the family Court while dismissing her - 4 - petition for judicial separation. It is his further contention that the family Court while dismissing the said petition for judicial separation has also arrived at the finding that the respondent is living separately from her husband without any justification and she had left the matrimonial house without any reasonable cause. It is his further case that the intention on the part of the respondent to desert the matrimonial house and the company of the appellant from 24th December, 1993 was clear at the time when she left the matrimonial house on the same day. The same was confirmed from the fact of filing of the proceedings for judicial separation as well as criminal complaint under Section 498A of I.P.C., coupled with the fact that the respondent exhibited adamant and uncooperative attitude in refusing to come back to reside with the appellant inspite of various attempts on the part of the appellant for reconciliation and to bring her to the house of the appellant. It is the further case of the appellant that during the time she stayed with the appellant, she always misbehaved and harassed the appellant and his family members and was insisting for a residential house separate from that of the parents of the appellant. According to the appellant, his parents are ill and need constant medical care, apart from the - 5 - fact that the appellant himself is a disabled person. 4. On the other hand, it is the case of the respondent that right from the day one she joined the appellant after the marriage, she was being illtreated and there was constant demand for Rs.1,00,000/- from the parents of the respondent to enable the appellant to purchase a car, and on account of refusal on the part of the respondent to pay the said amount to the appellant, the respondent was being harassed by one way or the other by the appellant and his parents. It is her further case that on 24th December, 1993 she was forced to leave the matrimonial house, and therefore, she had to proceed to live with her parents against her desire. It is the further case of the respondent that her attempt to stay with the appellant after the dismissal of the petition for judicial separation also proved futile on account of uncooperative attitude on the part of the appellant. It is her further case that considering the income of the appellant, the respondent is entitled for permanent alimony, and therefore, no fault can be found with the impugned judgment granting permanent alimony and dismissing the petition for divorce. 5. The family Court, Pune, after considering the - 6 - evidence on record, has held that the appellant had failed to establish that the respondent had treated the appellant with cruelty within the meaning of the said expression under Section 13(1)(ia) of the Hindu Marriage Act, 1955 as also failed to prove that the respondent had deserted him for the period not less than two years immediately preceding presentation of the petition without just reason or proper cause, as contemplated under Section 13(1)(ib) of the said Act, and therefore, there was no case for grant decree of of divorce, however, simultaneously granted permanent alimony of Rs.1,000/- per month to the respondent. 6. While assailing the impugned judgment as far as it dismisses the petition for divorce is concerned, the learned Advocate appearing for the appellant submitted that the fact that the respondent left the matrimonial house on 24th December, 1993 having been established by a clear finding of the family Court to that effect in the proceedings for judicial separation filed by the respondent herself and further the fact that the respondent had filed the proceedings for judicial separation, complaint under Section 498A of I.P.C. against the appellant and his parents and got them arrested and prosecuted, got the news about their arrest published in the newspapers and the fact that - 7 - she refused to come back to stay with the appellant inspite of various efforts on the part of the appellant in that regard, obviously establish desertion for a period of more than two years prior to the filing of the petition for divorce by the appellant and the Court below having totally failed to consider the same while rejecting the divorce petition had acted arbitrarily, rendering its judgment to be bad in law. The respondent has not shown any cause for leaving the matrimonial house on 24th December, 1993 as well as for not returning to reside with the appellant and the allegations regarding ill-treatment during the period she had stayed with the appellant as well as the alleged ground for leaving the matrimonial house from 24th December, 1993 have not been proved by the respondent. The intention on the part of the respondent not to return to reside with the appellant was clear on the day she left the matrimonial house and the same was confirmed from the fact of filing the petition for judicial separation, and further the fact that there was no reasonal cause for leaving matrimonial house on 24th December, 1993 and further confirmed with the clear finding in that regard by the family Court in its judgment while dismissing the proceedings for judicial separation and since there was no appeal against the said judgment, it had - 8 - attained finality for all purposes. The appellant having clearly established with cogent evidence about the factum of desertion of the matrimonial house by the respondent from 24th December, 1993, he has a clear case for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. As regards the ground of cruelty, the learned Advocate for the appellant submitted that apart from the fact of filing of the false complaint, which has been abundantly established by the fact of dismissal of the complaint and acquittal of the appellant as well as his parents, there was humiliation to the appellant on account of arrest and detention in the police custody and publication of the news in that regard in the newspapers, and that was all on account of a false complaint by the respondent which clearly disclosed mental cruelty to the appellant warranting dissolution of the marriage, as contemplated under Section 13(1)(ib) of the Hindu Marriage Act, 1955. It is further submitted that refusal to participate in the Chulah ceremony, which is a prestigious ceremony consequent to the marriage in the community of the appellant, a strange conduct on the part of the respondent, harassment caused by her to the appellant and his parents, abruptly leaving the matrimonial house without any justifiable cause and refusal to - 9 - return to reside with the appellant, disclose cruelty on the part of the respondent to the appellant, and therefore, the Court below ought to have decreed the suit for divorce on the said ground also. The learned Advocate for the appellant further submitted that the evidence placed on record as regards the income of the appellant, financial obligations and the expenses incurred by the appellant on account of ill-health of his parents as well as for his own medical expenditure clearly reveal that there was no justification for grant of permanent alimony in favour of the respondent, and certainly not to the extent of Rs.1,000/- per month. 7. Reliance is sought to be placed in the decisions in the matter of AAAdddhhhyyyaaatttmmmaaa BBBhhhaaattttttaaarrr AAAlllwwwaaarrr vvv... AAAdddhhhyyyaaatttmmmaaa BBBhhhaaattttttaaarrr SSSrrriii DDDeeevvviii,,, reported in (2002)1 SCC 308, of SSSaaadddhhhaaannnaaa SSSaaatttiiissshhh KKKooolllvvvaaannnkkkaaarrr vvv... SSSaaatttiiissshhh SSSaaaccchhhiiidddaaannnaaannnddd KKKooolllvvvaaannnkkkaaarrr,,, reported in 2005(2) Bom.C.R.340, GGG...VVV...NNN...KKKaaammmeeessswwwaaarrraaa RRRaaaooo vvv... GGG...JJJaaabbbiiilllllliii,,, reported in (2002)2 SCC 296, SSSmmmttt...KKKaaalllpppaaannnaaa SSSrrriiivvvaaassstttaaavvvaaa vvv... SSSuuurrreeennndddrrraaa NNNaaattthhh SSSrrriiivvvaaassstttaaavvvaaa,,, reported in AIR 1985 Allahabad 253, and RRRaaajjjkkkiiissshhhooorrreee PPPrrraaasssaaaddd vvv... SSSmmmttt... RRRaaajjj KKKuuummmaaarrriii DDDeeevvviii &&& OOOrrrsss...,,, reported in AIR 1986 Patna 362. 8. The learned Advocate appearing for the - 10 - respondent, on the other hand, has submitted that there has been absolutely no evidence led by the appellant that the respondent had left the matrimonial house of her own and, on the contrary, the testimony of the respondent discloses that the respondent had not left the matrimonial house of her own but rather she was forced to leave the matrimonial house and was not taken inside the house after having driven her out of the house. That apart, even after the dismissal of the petition for judicial separation, she had made honest effort to go back to reside with the appellant but due to the adamant and uncooperative attitude on the part of the appellant, she was prohibited from residing in her matrimonial house. The learned Advocate for the respondent further submitted that there was absolutely no evidence on the point of desertion of the matrimonial house by the respondent and certainly not even after the dismissal of the petition for judicial separation, and therefore, no case was made out by the appellant for grant of divorce on the same ground. As regards the cruelty is concerned, the learned Advocate for the respondent submitted that there being absolutely no evidence led by the appellant, no fault can be found with the dismissal of the petition for divorce on the said ground. As regards the Chulah ceremony is concerned,