-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.114 OF 2008 FAMILY COURT APPEAL NO.114 OF 2008 FAMILY COURT APPEAL NO.114 OF 2008 Dr.Nilkanth Vishwanathrao Jangam, .. Appellant Vs sou Aparna Nilkanth Jangam .. Respondent. Mr B.S.phad, for the appellant. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. DATE : 10/07/2008 DATE : 10/07/2008 DATE : 10/07/2008 PC: PC: PC: 1. We have heard Mr Phad, learned counsel for the appellant-husband. 2. This appeal arises from the Judgment and order dated 1.8.2008 rendered by the Family Court No.1 at Pune, thereby, dismissing Petition A.No. 36 of 2007 seeking divorce on the ground of cruelty. 3. The main issue before the Family Court was whether the husband proved that the respondent-wife had treated him with cruelty as stated in para nos. 4 to 16 of the petition memo. The petitioner-husband examined himself at Exhibit-26 and his elder brother Dr. Datta Parasad at Exhibit-38, Anand Swami at Exhibit 39, and Mrs Bharati Jangam at Exhibit-40. The wife examined herself at Exhibit-45 and her maternal uncle Shri Baburao Kulkarni at Exhibit 46. The husband had issued a notice to the respondent-wife calling upon her to restore the matrimonial relationship (Exhibit-33) and the same was -2- replied by the respondent-wife through her advocate at Exhibit-34. It was alleged by the husband that she had left the matrimonial home without informing anyone and, therefore, he had filed an FIR on 30.11.2006. 4. With the assistance of the learned counsel, we have gone through the oral depositions of all the witnesses and more particularly the appellant-husband and the respondent-wife. We have also perused the notice at Exhibit-33 and the reply thereto at Exhibit-34. For the first time in the petition memo, an allegation was made by the appellant-husband that the marriage was not consummated solely because the wife refused to have any physical relationship. Such a ground is not in the notice at Exhibit-33 and the wife, while she was in the witness-box in her examination, denied the allegation and further stated that she had conceived and it was the husband who forced her to undergo an abortion. 5. The record further shows that the wife went to the parents house and had filed a petition for restitution of conjugal rights and the same was decreed. We are informed by Mr Phad that it was an exparte decree which has been set aside and the petition filed by the wife for restitution of conjugal rights is pending for decision. 6. We have considered the reasoning set out by the Family Court in recording a finding that the husband could -3- not prove the allegation of cruelty on the part of the wife and the said finding is supported by the record. We, therefore, do not find any reason to entertain this Appeal and the same must fail at the threshold. 7. The Appeal is dismissed in limine. (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (B.H.MARLAPALLE,J.) (B.H.MARLAPALLE,J.) (B.H.MARLAPALLE,J.)