1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 587 OF 2006 with SECOND APPEAL NO. 948 OF 2009 Narendra s/o Popat Waghmare, Aged 34 years, Occ. Nil, R/o Khatgaon Takli, Taluka & Dist. Ahmednagar, At present R/o. C/o Shrirang Raut, R/o A-1, Hair Dresses, Near Chandan Nagar, Pune - 32 Appellant V E R S U S Jaishree w/o Narendra Waghmare, Aged 26 years, Occ. Business & Household, R/o Khatgaon Takli, Taluka & Dist. Ahmednagar. Respondent Mr. B.S. Shinde, Advocate for the appellant Mr.N.B. Suryawanshi, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 28th July, 2010 PER COURT : 1. Both these second appeals can be decided by this common order. 2. Both these second appeals are filed by the husband, against whom the Courts below recorded findings viz. that the respondent / wife had proved her case for restitution of conjugal rights, and that the appellant / husband could not prove his case of cruelty as a ground of divorce. 3. Having gone through the Judgments of the Courts below, the facts of the case can be narrated as under : 2 The parties to the litigation got married in the year 1998. Till 2001 they stayed together. An untoward incident occurred on 15th January, 2001. On that day, two relatives of the parties came to the husband’s house with a request that the wife should be sent to her parents’ house for few days. While they were still there, the brother of the wife came and demanded that his sister should be sent with him. There occurred quarrel between the brother of wife on one side and the parents of the husband on the other. The quarrel turned violent, and it is alleged that the brother of the wife caused bleeding injury on the head of the mother of the husband. After this incident, the brother of the wife took her away. The couple has a son, who is now 10 years old. This son also went with his mother (at that time the son was only nine months old and was probably a suckling child). The parties thereafter met each other only in the Court. The wife filed petition for restitution of conjugal rights and she succeeded in getting a decree. During pending of such petition, husband filed petition for divorce on the ground of cruelty. The husband, in his deposition, admitted that the wife was behaving normally till 15th January, 2001. A stray incident of 15th January, 2001 was blown out of proportion by the husband during these litigations and the first appellate Court rightly rejected its importance. It was held that the wife all along behaved normally and had not treated the husband with cruelty. 4. The decree for restitution of conjugal rights is opposed mainly on the ground that the wife had no justification to seek restitution of conjugal rights when she has filed a petition under Section 125 of Code of Criminal Procedure for maintenance and a suit for maintenance for herself and for her son. The circumstances, which the wife faced after 15th January, 2001, entitled her to not only file a petition for restitution of conjugal rights, but also for maintenance etc. Her stand on all these cases is not self contradictory. It seems, despite of the incident of 15th January, 2001 and her allegation against 3 her husband that he demanded expensive gifts etc from her parents, she is willing to resume cohabitation. In view of this, I find no error on the part of the findings recorded by the first appellate Court in both these cases. There arises no substantial question of Law in these appeals. Both the appeals stand dismissed. 5. The observations made in this order shall not influence the Court while deciding First Appeal No. 854 of 2010. 6. In view of dismissal of both these appeal, Civil Application Nos. 8738 of 2005 and 13374 of 2009 disposed of. ( A.V. NIRGUDE, J. ) srm/sa/587/05