1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Family Court Appeal No.92 of 2008 Shri Prakash B. Nima Appellant Vs. Smt. Meenakshi P. Nima Respondent Mr.N.H.Vyas for appellant. Mr.G.M.Savagave for respondent. CORAM: B.H.MARLAPALLE & D.G.KARNIK,JJ. March 21, 2009. P.C. 1. While restoring this appeal vide our order dated 24/2/2009 we had put the parties on notice that the appeal could be decided at the admission stage itself and consequently Mr.Vyas, the learned counsel for the appellant - husband has circulated the private paper book copies and, therefore, we heard the parties so as to dispose this appeal at the admission stage itself. 2. The appellant had approached the Family Court by filing Petition NO.A-109 of 2005 before the Family Court at Mumbai for seeking divorce on the ground of cruelty and desertion i.e. Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955. The marriage 2 between the parties was solemnised on 22/2/2000 at Bhoiwada, Mumbai as per the Hindu religious rites and customs. Daughter Siddhi was born on 2/11/2000. Within four days thereafter marital disputes arose between the parties and it is the case of the husband that on 18/7/2001 the wife picked up a quarrel with him on the ground that she wanted to live separately with her mother and when this was opposed by him, she left the matrimonial home and by leaving behind the daughter with the husband. The husband claimed that he made efforts to persuade her to join the matrimonial home but in vain and, therefore, he issued notice on 15/2/2002 and finally he filed the petition seeking divorce. The petition was opposed by the wife by filing her Written Statement. The Family Court by the impugned order has held that the appellant could not prove the ground of cruelty as well as desertion. This finding is solely based on the order passed by the learned Judicial Magistrate, First Class at Thane in an application filed under Section 125 of Cr.P.C. Though the appellant had stepped in the witness box, his evidence has not been taken into consideration and the wife did not lead any oral evidence. As per the learned counsel for the respondent - wife, she was handicapped as she could not afford to pay the legal 3 fees and, therefore, the lawyer engaged was absent. 3. Section 43 of the Evidence Act states that the judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42 are irrelevant unless existence of such judgment, order or decree is a fact in issue or is relevant under some other provisions of the Evidence Act. Mr.Vyas has placed before us a copy of the judgment in the case of Anil Behari Ghosh Vs. Smt. Latika Bala Dassi & ors. [AIR [AIR [AIR 1955 1955 1955 SC SC SC 566] 566] 566], which clearly ruled that a judgment in a criminal trial cannot be considered as evidence in civil cases. 4. Having heard the learned counsel for both the parties and on consideration of the legal position, we are satisfied that it would be in the interest of both the parties to set aside the impugned judgment and order rendered by the Family Court, restore the petition filed by the appellant before the Family Court and remand for re-trial. 5. Hence we allow this appeal and set aside the impugned judgment and order dated 6th February 2008. Petition No.A-109 of 2005 is hereby restored to the 4 file of the Family Court at Mumbai and it is remanded for re-trial. The parties are at liberty to adduce additional evidence if they so desire including cross-examination of the respective witnesses. However, the restored petition shall be heard and decided as expeditiously as possible and in any case within six months from the date of first appearance. The parties to appear before the Family Court at Mumbai on 2nd April 2009. Parties to bear their own costs. (D.G.KARNIK,J.) (B.H.MARLAPALLE,J.)