is totally erroneous and contrary to law laid down by the Supreme
Court and this Court holding that if the wife had filed a false case
against the husband and his family members in which the appellant
husband and his family members are acquitted, it amounted to cruelty
and the husband on the said ground was entitled to seek divorce. The
impugned order passed by the lower appellate Court thus deserves to
be set aside.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 634 OF 2013
Shri Mangesh Balkrushna Bhoir Vs Sau. Leena Mangesh Bhoir
CORAM : R.D. DHANUKA, J.
PRONOUNCED ON : 23rd DECEMBER, 2015.
Citation;AIR 2016(NOC)364 Bom
1. By this second appeal, the appellant has impugned the
order passed by the Lower Appellate Bench granting reliefs in favour
of the respondent in the civil appeal filed by the respondent. The
appellant was the original petitioner in Marriage Petition and the
respondent herein was the original respondent in the Marriage
Petition.
2. On 15th June, 2002, the appellant was married to the
respondent in Ganapati Temple, Manor. It was the case of the
respondent wife that the appellant and the respondent were already
staying together since 1996 and during the period between 1996 and
1999, the appellant had refused the proposal of the respondent to
marry her. It was the case of the appellant that the respondent and
her brother Mr.Jagdish Patil had come to the house of the appellant
and given him Rs.10,000/- and asked him to marry with the
respondent which the appellant had refused and had returned the
said amount. The respondent filed a case (Regular Case
No.203/1999) in Palghar Court under sections 3 and 4 of the
Prevention of Dowry Prohibition Act against him.
3. It was the case of the appellant that during the Navratri
festival, when the appellant was doing lighting work, respondent
abused the respondent in filthy language and filed a case bearing
Summary Case No.584/01 under sections 323, 504 and 506 of Indian
Penal Code.
4. On 15th June, 2002, the appellant married with the
respondent. It was the case of the appellant that though the appellant
did not wish to marry the respondent, the respondent had pressurized
the appellant that if the appellant did not marry with her, the appellant
would be killed and if he would marry her, the respondent would
withdraw both the criminal cases. It was the case of the appellant that
in view of such pressure, the appellant had consented for the said
marriage which was performed on 15th June, 2002 against his wish.
On 12th July, 2002 the two criminal cases filed by the respondent were
compromised and were withdrawn.
5. On 31st May, 2004, the appellant had filed a complaint
against the respondent with the Palghar Police Station. On 4th June,
2004, the respondent filed complaint under sections 498-A read with
section 34 of Indian Penal Code against the appellant, his parents
and sisters. On 4th June, 2004, the local police station arrested the
appellant, his parents and sisters and produced them before the
concerned court for bail, the appellant, his parents and sisters were
subsequently released on bail. It is the case of the appellant that
since 4th June, 2004, the parties have been staying separately. There
is no issue out of said wedlock.
6. On 19th July, 2005 the appellant herein filed a petition i.e.
Marriage Petition No.52 of 2005 against the respondent wife inter alia
praying for divorce on the ground of cruelty and on other grounds.
During the pendency of the said marriage petition filed by the
appellant herein, a complaint bearing RCC No.193 of 2004 filed by
the respondent under section 498-A read with section 34 of Indian
Penal Code came to be disposed of on 7th May, 2007.
7. By the said order dated 7th May, 2007, the appellant, his
parents and his sisters were acquitted for the offences under section
498-A read with section 34 of Indian Penal Code. The learned
Judicial Magistrate, 1st Class held that the prosecution had failed to
prove the offence in which the accused were charged.
8. On 31st January, 2008 the learned Civil Judge, Senior
Division, Palghar allowed the Marriage Petition No.52 of 2005 filed by
the appellant herein against the respondent inter alia praying for
decree of divorce. By the said order and judgment dated 31st
January, 2008, the learned Civil Judge Senior Division directed that
the marriage solemnized between the appellant and the respondent
dated 15th June, 2002 was dissolved by decree of divorce under the
provisions of Section 13(1) (i-a) of the Hindu Marriage Act from the
date of the said order and directed the appellant to pay permanent
maintenance of Rs.2,000/- per month to the respondent from the date
of the said petition.
9. Though the appellant had prayed for divorce on various
grounds, the learned Civil Judge, Senior Division allowed the said
marriage petition only on the ground of cruelty. The said order and
judgment of the learned Civil Judge, Senior Division was impugned by
the respondent wife before the District Judge – 2, Palghar by filing
Civil Appeal No.07 of 2008. During the pendency of the said appeal
filed by the respondent wife in the Court of District Judge – 2, the
appeal filed by the State of Maharashtra against the order passed by
the Judicial Magistrate First Class (Criminal Case No.22 of 2007) in
the Court of Additional Sessions Judge at Palghar came to be
dismissed by an order and judgment dated 11th July, 2011. The
respondent wife challenged the said order and judgment dated 11th
July, 2011 passed by the learned District Judge by filing a Criminal
Revision Application No.449 of 2011 in this court. The said criminal
revision application filed by the respondent wife is dismissed by this
court on 11th February, 2013. This court observed that the respondent
wife had lodged two criminal prosecutions prior to marriage against
the accused persons. The learned judge had considered that the
complaints filed by the respondent wife were vague and without
details and that the respondent herein was living separately from the
accused persons.
10. By an order and judgment dated 7th August, 2010 the
learned District Judge-2, Palghar allowed the Civil Appeal No.07 of
2008 filed by the respondent wife and has set aside the judgment and
decree passed by the learned Civil Judge, Senior Division, Palghar in
Marriage Petition No.52 of 2005 dated 31st January,2008 and
dismissed the marriage petition filed by the appellant herein. This
judgment and decree passed by the learned District Judge – 2
allowing the appeal filed by the respondent wife and dismissing the
marriage petition filed by the appellant is impugned by the appellant
husband in Second Appeal No.634 of 2013.
11. This court while admitting this Second Appeal No.634 of
2013 on 1st July, 2014 has formulated the following substantial
questions of law :-
“Whether in the facts and circumstances, the
appellate Court was right in reversing the decree
passed by the trial Court for divorce on the ground
of cruelty particularly when the proceedings under
Section 498A against the appellant-husband has
culminated into acquittal upto the last stage ?”
12. Ms.Seema Sarnaik, learned counsel appearing for the
appellant submits that in this case the respondent had not filed any
application for restitution of conjugal rights. She had no intention to
co-habit with the respondent. She pursued the complaint filed against
the appellant, her parents and his sisters under section 498-A read
with section 34 of Indian Penal Code to its logical end. She submits
that the appellant, his parents and the sisters are acquitted in the
criminal complaint filed by the respondent. The criminal court found
that the prosecution had failed to prove the allegations made in the
complaint. She submits that in the criminal proceedings, the
appellant, his parents and sisters were acquitted but not based on any
benefit of doubt given to the appellant and his family members but on
merits. She submits that the said order passed by the learned
Magistrate, First Class has been confirmed by the learned Sessions
Judge and thereafter by this court. It is held that filing of such false
complaint under section 498-A read with section 34 of Indian Penal
Code and confirmation of such criminal case against the appellant
and his family members amounted to the cruelty against the appellant
and his family members and thus such action on the part of the
respondent wife amounted to cruelty on which ground the appellant
was entitled to seek divorce under Section 13(1) (i-a) of the Hindu
Marriage Act. She submits that in view of arrest of the appellant
along with his family members by the police, there was mental trauma
and harassment to the appellant and his family members which
amounted to cruelty.
13. Learned counsel for the appellant invited my attention to
the findings rendered in the criminal proceedings in three orders
passed therein and also the findings rendered by the learned Civil
Judge, Senior Division in the Marriage Petition filed by the appellant.
She submits that the learned Civil Judge, Senior Division had rightly
held that the action on the part of the respondent in filing criminal
complaint under section 498-A read with section 34 of Indian Penal
Code amounted to cruelty. She submits that when the order was
passed by the learned Civil Judge, Senior Division in the said
Marriage Petition, the criminal appeal filed by the State of
Maharashtra was pending.
14. Learned counsel placed reliance on the judgment of
Division Bench reported in 2014(4) Bom.C.R.456 and in particular
paragraphs 27, 29, 32 and 34 of the said judgment and would submit
that if the acquittal is on the ground that the charge could not be
substantiated and even if there is no finding recorded by the criminal
court that the prosecution case was false, there can be a case of
cruelty.
15. Learned counsel for the appellant also placed reliance on
the judgment of Supreme Court in case of Vishwanath Sitaram
Agrawal vs. Sau. Sarla Vishwanath Agrawal, 2012 AIR (SC) 2586
and more particularly paragraphs 28, 29, 33 to 35 and would submit
that the decision of acquittal against the appellant, his parents and
other relatives in the proceeding filed under section 498A of Indian
Penal Code were found incorrect and untruthful and such act on the
part of the wife would create mental trauma in the mind of the
husband.
16. Learned counsel appearing for the appellant also placed
reliance on the unreported judgment of this court delivered on 6th May,
2010 in case of Nagesh Dhanapp Chilkanti vs. Sau. Manisha
Nagesh Chilkanti in Family Court Appeal No.158 of 2008, judgment
of Supreme Court in case of K.Srinivas vs. K.Sunita, (2014) 16 SCC
34 in support of the submission that filing of the criminal complaint
under section 498A of Indian Penal Code against the appellant and
his family members which were found frivolous itself was amounted to
cruelty by the respondent upon the appellant and on that ground itself
appellant was entitled to seek divorce from the respondent.
17. Mr.Bhate, learned counsel for the respondent on the other
hand submits that the appellant and the respondent were already
staying together between 1996 and 2002 as husband and wife. Since
the appellant had refused to marry the respondent in spite of the
promise and staying with the respondent as husband, the respondent
was compelled to file two complaints against the appellant i.e. one
under the provisions of Dowry Prohibition Act and another for
committing assault by the appellant on the respondent. He submits
that the appellant never filed any proceeding for quashing of those
two complaints filed by the respondent wife. Within one month from
the date of marriage solemnized between the parties on 15th June
2002, the respondent wife had withdrawn her complaints on 12th July,
2002.
18. It is submitted by the learned counsel that the appellant
and the respondent were not staying separately but were staying in a
separate room. He submits that though the marriage took place on
15th June, 2002, there was no complaint filed by either party against
each other till June 2004. He invited my attention to the complaint
filed by the appellant on 31st May, 2004 against the respondent
alleging threats of the respondent to file complaint under section 498A
of Indian Penal Code. He submits that since the appellant had thrown
out respondent on 4th June, 2004, the respondent was compelled to
file a complaint under section 498A read with section 34 of the Indian
Penal Code against the appellant, his parents and sisters for the
offences committed by them. He submits that since the respondent
was staying with the appellant till 4th June, 2004, the stand of the
appellant that the respondent had been staying separately since eight
months prior to the date of filing complaint or during the period
between 15th June, 2002 to 4th June, 2004 did not arise. He submits
that the civil court has to decide the case on the basis of
preponderance of the probability. Learned counsel placed reliance on
section 23(1) (a) of the Hindu Marriage Act, 1955 and would submit
that the appellant had taken advantage of his wrong by staying with
the respondent wife for a period of six years without marriage as a
husband and who had committed offence under section 498A cannot
be granted divorce in view of section 23(1)(a) of the Hindu Marriage
Act, 1955.
19. Insofar as judgment of this court reported in 2014(4)
Bom.C.R. 456 relied upon by the learned counsel for the appellant is
concerned, learned counsel appearing for the respondent made an
attempt to distinguish the said judgment on the ground that the said
judgment was decided on the basis of the facts stated therein which
facts are totally different than the facts in this case.
20. Learned counsel for the respondent placed reliance on the
judgment of this court in case of Mrs.Deeplakshmi Sachin Zingade
vs. Sachin Rameshrao Zingade, AIR 2010 Bombay 16 and in
particular paragraph 16 and submits that this court has held that when
the Domestic Violence Act permits the wife to approach the court in
case of any cruelty on the part of the husband and if that remedy is
availed of, such act should not be treated as an act of cruelty,
otherwise in no case a lady can file any complaint, if the filing of such
complaint is to be treated as an act of cruelty.
21. Learned counsel for the respondent placed reliance on the
judgment of Patna High Court in case of Bhola Kumar vs. Seema
Devi @ Dolly, III (2015) DMC 437 (DB) (Patna) and in particular
paragraph 16 and would submit that Patna High Court has taken a
view that institution of criminal case by the wife against the
respondent and family members will per se not constitute cruelty for
the purpose of seeking divorce unless it is held by a Court of
competent jurisdiction that the said complaint/allegation was false and
vexatious.
22. Learned counsel for the respondent made an attempt to
distinguish the judgment of Supreme Court in case of K.Srinivas vs.
K.Sunita, (2014) 16 SCC 34 on the ground that the Supreme Court in
the said judgment had rejected the contention of wife on the ground
that the wife had not narrated the complete facts in the complaint. He
submits that the facts before the Supreme Court in the said judgment
were totally different and the said judgment is clearly distinguishable
in the facts of this case.
23. Ms.Sarnaik, learned counsel for the appellant in rejoinder
submits that the appellant husband was compelled to file a complaint
against the wife on 31st May, 2004 based on the apprehension that
the wife would be initiating a false action under section 498A of the
Indian Penal Code and was threatening the appellant and thus the
said complaint was justified by the appellant. She submits that the
judgments relied upon by the appellant are squarely applicable to the
facts of this case and are binding on the parties and this court. It is
submitted that the respondent cannot seek reliance upon section
23(1) (a) of the Hindu Marriage Act, 1955 on the ground that false
complaints were filed by the wife against the appellant even before
marriage was solemnized between the parties and in view of such
false and frivolous complaint, the appellant was forced to marry her.
She submits that it was the respondent who committed wrong and not
the appellant and thus the said provisions under section 23(1) (a) of
the Hindu Marriage Act, 1955 would assist the appellant and not the
respondent. Learned counsel for the appellant distinguished the
judgment of this court in case of Mrs.Deeplakshmi Sachin Zingade
(supra) relied upon by the respondent on the ground that the
complaint in the present proceedings was not filed under the
provisions of Domestic Violence Act but were filed under the
provisions of section 498-A of the Indian Penal Code. The criminal
complaint in the said proceedings were still pending whereas in this
case, a criminal complaint filed at the instance of the respondent was
dismissed with a finding that the prosecution could not prove the
allegations made in the complaint. She submits that the said
judgment would not apply to the facts of this case at all.
24. Learned counsel for the appellant also distinguished the
judgment of Patna High Court in case of Bhola Kumar (supra) relied
upon by the learned counsel for the respondent on the ground that
the criminal case in the said matter was pending adjudication before
the criminal court of competent jurisdiction and thus the said judgment
would not apply to the facts of this case.
REASONS AND CONCLUSIONS :-
25. There is no dispute that the appellant and the respondent
were staying together prior to 15th June, 2002. It was the case of the
respondent wife that the appellant and the respondent were staying
together since 1996 and during the period between 1996 and 1999,
the appellant had refused the proposal of the respondent to marry
her. It is also not in dispute that the respondent had filed a case
(Regular Case No.209 of 1999) in Palghar Court under sections 3 and
4 of the Prevention of Dowry Act against the appellant. The
respondent had also filed one more criminal case i.e. Criminal Case
No.584 of 2001 under sections 323, 504 and 506 of the Indian Penal
Code against the appellant during that period.
26. It was the case of the appellant that though the appellant
did not wish to marry the respondent, the respondent had pressurized
the appellant that if the appellant did not marry her, the appellant
would be killed and if he would marry her, the respondent would
withdraw both the criminal cases against the appellant. The appellant
had married the respondent on 15th June, 2002. It is not in dispute
that on 12th July, 2002, both the criminal cases were compromised
and were withdrawn.
27. It was the case of the appellant that since 4th June, 2004,
the parties have been staying separately and there was no issue out
of the said wed-lock.
28. It was the case of the appellant that since the respondent
had threatened the appellant of filing a complaint under section 498-A
read with 34 of IPC, the appellant had filed a complaint against her on
31st May, 2004. On 4th June, 2004, the respondent filed a complaint
under section 498-A read with 34 of IPC against the appellant, his
parents and sisters. On 4th June, 2004, local police arrested the
appellant, his parents and sisters who were subsequently released on
bail.
29. There is no dispute that during the pendency of the
marriage petition filed by the appellant husband against the
respondent, inter-alia praying for divorce on the ground of cruelty and
other grounds, by an order dated 7th May, 2007 passed by the
Criminal Court, the appellant and his family members were acquitted
in the complaint bearing Regular Case No.193 of 2004 filed by the
respondent. The learned trial Judge allowed Marriage Petition No.52
of 2005 under section 13(1)(i-a) of the Hindu Marriage Act, 1955 for
dissolution of marriage and by a decree of divorce on the ground that
the respondent wife had committed cruelty upon the appellant.
30. It is not in dispute that the appeal filed by the State
Government against the order passed by the Judicial Magistrate First
Class acquitting the appellant and his family embers in the Court of
Additional Sessions Court, Palghar came to be dismissed by an order
and judgment dated 11th July, 2011. Criminal Revision Application
No.449 of 2011 filed by the respondent wife against the order passed
by the Additional Sessions Judge also came to be dismissed by this
Court on 11th February, 2013. This Court while dismissing the said
criminal revision application has observed that the respondent wife
has lodged these two criminal proceedings even prior to the date of
marriage with the appellant against the appellant. The said order
passed by this Court on 11th February, 2013 has not been impugned
by the respondent wife and the said order has attained finality.
31. A perusal of the three orders passed in the criminal
proceedings filed against the appellant and his family members
clearly indicates that the complaint filed by the respondent against the
appellant and his family members has been rejected on merits. The
appellant and his family members were not acquitted in the criminal
proceedings on the basis of benefit of doubt given to the appellant
and his family members. The order passed by the learned Magistrate
First Class has been confirmed by the learned Additional Sessions
Judge and thereafter by this Court. The learned trial Court in the
criminal proceedings filed by the appellant had held that filing of such
false case under sections 498-A read with 34 of IPC by the
respondent against the appellant amounted to cruelty against the
appellant and his family members and on that ground the appellant
was entitled to seek divorce.
32. Insofar as the submission of learned counsel for the
respondent that the appellant had not filed any proceedings for
quashing of those two complaints filed by the respondent wife before
the the appellant had married the respondent is concerned, a perusal
of the record makes it clear that immediately upon the appellant
marrying the respondent, the respondent had compromised both the
criminal cases and had withdrawn those complaints. In my view, there
is thus merit in the submission made by learned counsel for the
appellant that the appellant was forced to marry the respondent in
view of such criminal complaints filed against the appellant before
such marriage and only because of the assurance by the respondent
that those complaints would be withdrawn if the appellant would
marry her, the appellant had married the respondent.
33. A perusal of the orders passed in the criminal proceedings
clearly indicates that the appellant and his family members were
arrested in view of the complaint filed by the respondent under
section498-A read with 34 of IPC and were subsequently released on
board. It further indicates that the appellant and his family members
were not acquitted based of any benefit of doubt given to them but
were acquitted on the ground that the complaints filed by the
respondent was totally vague and the allegations therein were not
proved. The order passed by the learned Magistrate First Class, in
the said complaint has attained finality in view of the order passed by
the learned Additional Sessions Judge dismissing the appeal filed by
the State of Maharashtra and by virtue of the order passed by this
Court, dismissing the criminal revision application field by the
respondent. It is thus clear that there was a mental trauma on the
appellant in view of such criminal complaint which was prosecuted by
the respondent right up to this Court by taking it to its logical end. The
respondent has been already staying separately for last 10 years.
There was no separate application filed by the respondent for
restitution of conjugal rights under section 9 of the Hindu Marriage
Act, 1955. In my view, the learned trial Court was thus right in holding
that the respondent wife had committed cruelty upon the appellant
and was right in grating a decree of divorce on that ground.
34. A perusal of the order passed by the lower appellant Court
however, indicates that the lower appellate Court has taken a very
casual approach by totally ignoring the effect of the order of acquittal
passed by the Criminal Court. When lower appellate Court had
passed an order on 7th August, 2010, the learned Magistrate First
Class had already dismissed the complaint filed by the prosecution
under section 498-A read with 34 of IPC which acquitted the appellant
and his family members.
35. Both the parties have relied upon several judgments of the
Supreme Court and this Court. The Supreme Court in case of K.
Srinivas (supra) has held that it is beyond cavil that if a a false
criminal complaint is preferred by either spouse it would invariably
and indubitably constitute matrimonial cruelty, such as would entitle
the other spouse to claim a divorce. The Supreme Court in the said
judgment held that the respondent wife had admitted in her crossexamination
that she did not mention of the incidents on which her
complaint was predicated, in her statement under section 161 of
Cr.P.C. It was also not her case that she had actually narrated all
those facts to the Investigating Officer but he had neglected to
mention them. The Supreme Court accordingly held that it was clearly
indicative of the fact that the criminal complaint was contrived after
thought. The Supreme Court took cognizance of the fact that though
the High Court had been informed about the acquittal of the husband
and his family members, the High Court had not concluded that
complaint of the wife was knowingly and intentionally a false
complaint, calculated to embarrass and incarcerate the appellant and
seven members of his family. It is held that the High Court ought to
have concluded that the said complaint was false complaint and that
such conduct of the wife unquestionably constituted cruelty as
postulated in section 13(1)(i-a) of the Hindu Marriage Act, 1955.
36. The Division Bench of this Court in case of Nagesh
Dhanapp Chilkanti vs. Sau.Manisha Nagesh Chilkanti (supra) had
considered a similar case where the husband and his family members
were acquitted in the complaint filed under section 498-A of IPC read
with other provisions of IPC. The Division Bench of this Court has
held that filing of false criminal cases against the husband and his
family members would very much constitute mental cruelty. The
Division Bench further held that the respondent wife was guilty of
treating the husband with utmost mental cruelty by filing false
criminal case which ultimately resulted in acquittal and thus the
husband was entitled to a decree of divorce o the ground of cruelty. A
perusal of the order passed by the learned Magistrate First Class in
the criminal case filed by the prosecution based on the complaint filed
by the respondent indicates that the said complaint has been rejected
on merits and not on the ground that the prosecution had failed to
prove the case beyond reasonable doubt. In my view, it was thus
clear that the said complaint filed by the respondent wife against the
appellant and his family members was a false complaint and was filed
as and by way of after thought and with an intention to defame the
appellant and his family members.
37. The Division Bench of this Court in case of Nitin Ramesh
Dhiwar vs. Sou. Poopali Nitin Dhiwar (supra) has held that filing of
a false criminal case itself amounts to cruelty within the meaning of
section 13(1)(i-a) of the Hindu Marriage Act, 1955.
38. The Division Bench of this Court in the judgment reported
in 2014(4) B.C.R. 456 has held that in a given case depending upon
the evidence on record, even if acquittal is on the ground that the
charge could not be substantiated and even if there was no finding
recorded by the Criminal Court that the prosecution's case was false,
there can be a case of cruelty. It depends on the manner in which the
complaint was filed and prosecuted.
39. The Supreme Court in case of Vishwanath Sitaram
Agrawal vs. Sau.Sarla Vishwanath Agrawal, reported in AIR 2012
SC 2586 has after considering the fact that the wife had filed a
complaint under section 498-A of IPC against the husband, her
father-in-law and other relatives, who had been acquitted in that case
and the said decision of the acquittal had not been assailed before
the higher forum, the allegations on that count were incorrect and
untruthful and thus it could be unhesitatingly be stated that such an
act creates mental trauma in the mind of the husband as no one
would like to face a criminal proceeding of this nature on baseless
and untruthful allegations. In this case also the appellant and his
family members have been acquitted since the allegations made in
the complaint filed by the respondent and in the proceedings filed by
the prosecution were not proved on merits. The said judgment of the
learned Magistrate First class has admittedly been upheld by the
learned Session Court and by this court. The said judgment, in my
view, would squarely apply to the fact of this case.
40. The Supreme Court in case of G.V.N. Kameswara Rao
vs. G. Jabilli, reported in (2002) 2 SCC 296 has adverted to its
earlier judgment in case of V. Bhagat vs. D. Bhagat, reported in
(1994) 1 SCC 337 in which it was held that a mental cruelty under
section 13(1)(i-a) can be defined as that conduct which inflicts upon
the other party such mental pain and suffering as would make it not
possible for that party to live with the other. The situation must be
such that the wronged party cannot reasonably be asked to put up
with such conduct and continue to live with the other party. The Court
must have regard to the social status, educational level of the parties,
the society they move in, the possibility or otherwise of the parties
ever living together in case they are already living apart and all other
relevant facts and circumstances which it is neither possible nor
desirable to set out exhaustively. In that case also both the parties
did not live together for a long period as happy married couple. The
Supreme Court held in that case that the appellant husband could
not be denied the relief by invoking section 23(1)(a) of the Hindu
Marriage Act.
41. The judgments referred to aforesaid clearly indicate that if
the complaint filed by the wife against the husband under section 498-
A of IPC and other related provisions was dismissed on merits and
the husband and his family members are acquitted, it was clear that
the complaint filed by the wife against the husband was a false
complaint. In my opinion, filing of such complaint itself which create
mental trauma on the husband and the complaint which was seriously
prosecuted by the wife by leading evidence of several persons and
bringing the said complaint to its logical conclusion which ultimately
resulted in acquittal of the husband and his family members clearly
amounted to the cruelty committed by the wife upon the husband.
42. The judgments of the Supreme Court and this Court which
are referred to aforesaid squarely apply to the facts of this case. I am
respectfully bound by those judgments. There is no dispute that the
husband and his family members were ultimately acquitted in such
complaint made by the respondent. It was not the case of the
respondent before the trial Court as well as before the lower appellate
Court that the finding rendered by the learned Magistrate First Class
were erroneous and such allegations were not independently proved
by the respondent before the learned trial Court as well as before the
lower appellate Court. A perusal of the order passed by the lower
appellate Court indicates that the evidence led by the respondent and
other witnesses in the said criminal proceedings and the findings
rendered by the learned Magistrate First Class have been totally
ignored by the learned trial Court.
43. The Supreme Court as well as this Court in the aforesaid
judgments have consistently held that if the false criminal complaint is
preferred by either spouse it would invariably and indubitably
constitute matrimonial cruelty, such as would entitle the other spouse
to claim a divorce. In my view, the respondent having filed a false
complaint alleging offence under section 498-A and other provisions
of IPC in which the appellant and his family members were acquitted
and thus the appellant was entitled to seek divorce on the ground of
cruelty under section 13(1)(i-a) of the Hindu Marriage Act.
44. Insofar as the submission of learned counsel for the
respondent that the appellant and the respondent were staying in a
separate room and that there was no complaint filed by either party
against each other till 2004 and thus there was no question of the
respondent committing any cruelty against the appellant is concerned,
the fact remains that the respondent had filed a complaint against the
appellant and his family members under section 498-A of IPC. The
appellant apprehending that such complaint would be filed, had filed a
police complaint against the respondent on 31st May, 2004. As and
by way of counter blast to the said complaint, the respondent filed a
complaint under section 498-A of IPC on 4th June, 2004.
45. Insofar as the submission of learned counsel for the
respondent that in view of the appellant and the respondent staying
for a period of six years i.e. from 1996 till 2002 together i.e. prior to
the date of marriage as husband and wife,the learned trial Judge
could not have granted divorce against the respondent in view of the
appellant having taken advantage against the respondent by placing
reliance on section 23(1)(a) of the Hindu Marriage Act, 1995 is
concerned, in my view there is no merit in this submission of learned
counsel. A perusal of the record clearly indicates that the respondent
had filed two complaints against the appellant even prior to the date
of marriage. Since the appellant married the respondent ultimately,
both the complaints were compromised. The respondent thereafter
filed a fresh complaint under section 498-A of IPC against the
appellant and his family members and based on such false complaint,
the appellant and his family members were arrested. In my view,
since the respondent had taken advantage of the appellant of her own
wrong and not the appellant as canvassed by learned counsel for the
respondent, the appellant was entitled to seek divorce under the said
provision. The said provision in these facts and circumstances would
come to the rescue of the appellant and not the respondent herein.
46. This Court in case of Manoj Madhukarrao Pate vs.
Sou.Vijaya Manoj Pate, reported in 2015(1) ALL MR 95 has
considered a similar situation and has held that the wife who had
filed a false complaint against the husband and his family members
under section 498-A of IPC, and the husband and his family members
having been acquitted, the husband was entitled to seek divorce on
the ground of cruelty under section 13(1)(i-a) of the Hindu Marriage
Act, 1955 against the wife.
47. In my view, the judgment of the Supreme Court in case of
G.V.N. Kameswara Rao vs. G. Jabilli, reported in (2002) 2 SCC
296, on the issue raised by the learned counsel for the respondent
under section 23(1)(i-a) of the Hindu Marriage Act, 1955 would apply
to the facts of this case and would assist the case of the appellant
husband.
48. Insofar as the judgment of the Division Bench of this Court
in case of Mrs.Deeplakshmi Sachin Zingade vs. Sachin
Rameshrao Zingade (supra) relied by learned counsel for the
respondent is concerned, in my view the said judgment is clearly
distinguishable in the facts of this case. The complaint filed by the
wife in the said matter was under the provisions of Domestic Violence
Act and not under section 498-A of IPC. The provisions of section
498-A of IPC are totally different than the provisions of Domestic
Violence Act.
49. Insofar as the judgment of the Patna High Court in case of
Bhola Kumar vs. Seema Devi @ Dolly (supra) relied upon by
learned counsel for the respondent is concerned, it is held by the
Patna High Court that the institution of criminal case by the wife perse
would not constitute cruelty for seeking divorce. In the said matter,
the criminal case was still pending adjudication before the Criminal
Court of competent jurisdiction when the marriage petition for divorce
was heard by the Family Court. In that context, the Patna High Court
took a view that merely because criminal case was filed, it would not
amount to cruelty. In this case, the criminal case was not only
rejected, the order passed by the learned Magistrate First Class has
been upheld by the learned Additional Sessions Judge as well as by
this Court. The said judgment of the Patna High Court in my view,
thus would not apply to the facts of this case and does not assist the
case of the respondent.
50. Insofar as substantial question of law framed by this Court
is concerned, the same is accordingly answered in negative.
51. In my view, the order passed by the lower appellate Court
is totally erroneous and contrary to law laid down by the Supreme
Court and this Court holding that if the wife had filed a false case
against the husband and his family members in which the appellant
husband and his family members are acquitted, it amounted to cruelty
and the husband on the said ground was entitled to seek divorce. The
impugned order passed by the lower appellate Court thus deserves to
be set aside.
52. I therefore pass the following order :-
a) Second Appeal No.634 of 2013 is allowed. The impugned
order and judgment dated 7th August, 2010 passed by the Additional
District Judge, Palghar in Civil Appeal No.7 of 2008 is set aside.
b). The judgment and decree passed in Marriage Petition
No.52 of 2005 dated 31st January, 2008 passed by the learned Civil
Judge, Senior Division, Palghar is restored to file. Marriage Petition
No.52 of 2005 is decreed.
c). No order as to costs.
(R.D. DHANUKA, J.)
At the request of learned counsel for the respondent, the
operation of this order is stayed for a period of eight weeks from
today.
(R.D. DHANUKA, J.)
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