AGK IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.843 OF 2006. APPEAL NO.843 OF 2006. APPEAL NO.843 OF 2006. Sou Deepa Prakash Patil ...Appellant Versus. Shri Prakash Bandu Patil ...Respondent --- Shri P.J.Pawar for the Appellant. Shri P.K.Dhakephalkar, Sr Advocate with Shri A.B.Vagyani for the Respondent. --- CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 08th & 09th April, 2008. : 08th & 09th April, 2008. : 08th & 09th April, 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. Unfortunate matrimonial dispute between the appellant-wife and respondent-husband gives rise to this Second Appeal. Initially the advocates appearing for the parties made their best endeavour to ensure that the parties settle the dispute amicably. As the efforts made by the learned advocates failed, there was no option but to take recourse to the painful task of resolving matrimonial dispute by a judicial adjudication. Whether a matrimonial dispute can be resolved in its true sense by a process judicial adjudication is an altogether a different aspect. However, the Court has to do its duty by deciding the : 2 : 2 : 2 : matrimonial dispute which the parties could not resolve by an amicable settlement. Since the parties are residing separately for a considerably long time, this Court requested the advocates to argue the matter finally. Though the submissions were concluded on 06th February, 2008, the judgment was reserved. One object of not delivering the judgment immediately was to provide one more opportunity to parties to amicably resolve their dispute. However, when the appeal is called out today, I am informed that the parties have not resolved their dispute and therefore I proceed to decide the appeal on merits. 2. The first question which arises in this appeal is as regards the maintainability of the Second Appeal. The said issue will have to be decided in view of the order dated 12th June, 2007 passed by this Court. The second question which needs to be decided is whether there could be a decree passed of divorce on the basis of allegations made in the pleadings by one of the parties to a matrimonial dispute. The third question which arises is what is the effect of amicable settlement which was allegedly arrived at one stage, on : 3 : 3 : 3 : the basis of which order was passed by this Court by quashing the prosecution against the husband. The question is whether the decree of divorce passed by the Appellate Court can be sustained. 3. Before adverting to the submissions made by the learned counsel appearing for the parties, it will be necessary to refer to the facts of the case in brief. The marriage between the appellant-wife and the respondent was solemnised on 24th August, 2001. A petition for divorce was filed by the respondent-husband in the year 2002. The petition for divorce recites various events relating to solemnisation of the marriage. One of the allegations made is that the appellant-wife denied the pleasures of matrimonial life of the respondent-husband. There are allegations made regarding the conduct of the appellant-wife in the matrimonial home. One more allegation is that while leaving the matrimonial home she threatened the parents of the respondent-husband to teach them appropriate lesson. It is alleged that the respondent tried to persuade the appellant-wife to come back to the matrimonial home. Efforts were made by the relatives of : 4 : 4 : 4 : the husband to bring back the appellant-wife. The allegation is that the said efforts failed. In the meanwhile, on 3rd April, 2002 the appellant-wife registered an offence with the police station alleging commission of offence under section 498-A of the Indian Penal Code against the husband and his family members. The respondent-husband had to apply for anticipatory bail. It is stated that a petition was filed by the husband in this Court for quashing the criminal prosecution. In the said petition there was a settlement and the appellant-wife filed an affidavit in the said proceeding in this Court recording that she was not desirous of persuing the complaint in view of the settlement. It is stated that the appellant-wife assured the Court to cohabit with the respondent-wife. Accordingly, an order was passed by this Court by quashing the criminal proceedings. 4. It is alleged that after the aforesaid settlement the respondent-husband and the appellant-wife started staying at the place of employment of the wife at Jejuri, Taluka Purandar, District Pune. It is alleged that conduct of the appellant-wife did not : 5 : 5 : 5 : change and there were fights. It is alleged that the appellant-wife started picking up quarrels with the respondent-husband and started insulting the respondent-husband. It is alleged that the appellant-wife demanded that the marriage should be dissolved by a divorce. It is alleged that on 29th September, 2002 there was another incident between the husband and wife. It is alleged that the respondent husband was threatened by appellant-wife. On 29th September, 2002 when the respondent-husband came back from the duty he found the house to be locked and he had to spent a night in a lodge. Till 01st October, 2002 the house remained locked and therefore the respondent-husband had no option but to break open the lock. He found that the appellant-wife had taken away ornaments as well cash amount of Rs.20,000/-. The allegation made in the petition is from 29th September, 2002 the appellant-wife has been residing separately. The cause of action is that the respondent-husband was treated with cruelty by the appellant-wife and the appellant-wife deserted him from 29th September, 2002. There is a written statement filed by the appellant-wife which contains denials. Apart from denials, there are : 6 : 6 : 6 : other allegations made regarding the mental state of the respondent-husband and his peculiar nature. The allegation made in the written statement is that infact the respondent treated the appellant with cruelty. It must be also stated here that the appellant-wife filed a petition being Petition No.165 of 2005 for restitution of conjugal rights. 5. The petition for divorce filed by the respondent-husband was dismissed. An appeal was preferred by him before the District Court. The District Court interfered and passed a decree of divorce. The District Court referred to the FIR lodged by the appellant-wife on 03rd April, 2002. The District Court referred to the affidavit filed by the appellant-wife in the Criminal Application for quashing filed in this Court. The District Court noted that this Court quashed the FIR on 26th April, 2002 and thus at that time the respondent-husband condoned the acts of cruelty. The Appellate Court held that after solemnisation of marriage the appellant-wife has treated the respondent husband with cruelty. The other ground accepted by the Appellate Court is based on allegations : 7 : 7 : 7 : made by the appellant-wife against the respondent-husband in the written statement as well as in the affidavit in lieu of evidence. It is stated that though the appellant-wife alleged that the respondent-husband was a maniac and suffers from psychosis, in the cross examination she admitted that the respondent was not a psychic. The Appellate Court came to the conclusion that the appellant lodged a false complaint against the respondent-husband. The Appellate Court held that the respondent-husband has proved that considering the allegations made by the appellant it had become impossible for him to live with the appellant-wife. The Appellate Court held that the allegations made by the appellant in the written statement certainly amount to causing mental cruelty to the respondent-husband. Another ground taken into consideration is that a recourse was taken to modes of Alternative Dispute Redressal under section 89 of the Code of Civil Procedure, 1908 but the attempt of re-conciliation has failed and there is no possibility of parties coming together and enjoying happy marital life in future. : 8 : 8 : 8 : 7. Turning to the first question regarding maintainability of the Second Appeal, it will be necessary to refer to the relevant provisions of the Hindu Marriage Act, 1955. Section 21 of the said Act provides that subject to other provisions of the said Act and the subject to rules as may be framed by this Court all proceedings under the said Act shall be regulated as far as may be by the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code). Section 28 provides for an appeal. Sub-section (1) of section 28 reads thus: "28. Appeals from decrees and orders.-(1) All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appellable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decision of the Court given in the exercise of its original civil jurisdiction". : 9 : 9 : 9 : Sub-section (1) of section 28 by a legal fiction treats the decrees passed by the Court under the said Act of 1955 as the decrees of the Court made in exercise of its original civil jurisdiction. It provides that every such appeal shall lie to the Court to which appeals ordinarily lie from the decision of the Court given in exercise of its original civil jurisdiction. Thus, a decree passed in the Petition under section 13 of the said Act of 1955 is on par with a decree of a civil Court made in exercise of its original civil jurisdiction. Section 21 of the said Act of 1955 mandates that the proceedings under the said Act of 1955 shall be regulated by the said Code. Therefore, once there is a decree passed by the Court in a petition under section 13 of the said Act of 1955, the said decree will be governed by the provisions of the said Code. Section 28 of the siad Act of 1955 does not lay down that the decree passed in appeal under the said section will be final or that no further approval shall lie against the said appellate decree. The learned single Judge of this Court in the case of Bhaskar Pandurang Mahatme Vs. Meerabai Bhaskar Mahatme (1983 Maharashtra Law Journal Page 115) had an occasion to : 10 : 10 : 10 : deal with this aspect. The learned single Judge referred to the relevant provisions of the Bombay Civil Courts Act, 1869 and section 28 of the said Act of 1955. After considering the legal effect of section 21 of the said Act of 1955, the learned Judge held that it was crystal clear that the first appeal as well as second appeal lies against the decree passed under the said Act of 1955. This really settles the issue regarding maintainability of the second appeal. I am respectfully bound by the said decision of the learned single Judge and in any event, nothing is shown to me which requires a contrary view to be taken. In terms of the order dated 12th June, 2007 passed by this Court, the Registrar (Judicial I) submitted a report dated 20th June, 2007 as regards the maintainability of the Second Appeal. The said report is consistent with the correct legal position. 8. The learned counsel appearing for the appellant has taken me through the findings recorded by the Appellate Court as well as trial Court. He has invited my attention to the order passed by this Court on 26th April, 2002 in Criminal Application No.1293 of 2002. : 11 : 11 : 11 : His submission is that even assuming that there were any acts of cruelty prior to 26th April, 2002 on the part of the appellant, the said Acts of cruelty will have to be taken as condoned by the respondent-husband as is clear from the aforesaid order passed in the Criminal Application and therefore by no stretch of imagination it can be said that the very act of lodging FIR by the appellant-wife was a mental cruelty to the respondent-husband as the order of this Court in the Criminal Application shows that even the said act was condoned by the respondent-husband. His submission is that the respondent-husband never applied for a decree of divorce on the ground of cruelty caused by the allegations made by the appellant in her written statement and therefore, the said allegations made in the pleadings cannot be the basis on which the decree could have been passed. 9. The learned counsel has referred to a decision of the Apex Court in the case of V.Bhagat Vs. D. Bhagat (Mrs) [(1994) 1 Supreme Court Cases Page 337). He submitted that the Apex Court has observed that only because there are allegations and counter allegations, a : 12 : 12 : 12 : decree of divorce cannot follow. He pointed out that an irretrievable breakdown of marriage is no ground by itself to pass a decree of divorce. 10. The learned senior counsel appearing for the respondent invited my attention to the relevant part of the written statement filed by the appellant. He also invited my attention to the notes of evidence. He pointed out that the allegation regarding mental state of the husband made in the written statement was accepted as incorrect by the appellant-wife in her cross-examination. He submitted that even assuming that the criminal prosecution was quashed, the question whether the allegations made by the appellant-wife caused mental cruelty to the respondent-husband can be always considered by the Court. He submitted that allegations repeatedly made by the appellant in the written statement that the respondent is a a maniac and a patient of psychosis surely caused mental cruelty especially when the respondent-husband is a government employee. He submitted that this was a clear case of the appellant-wife making reckless and irresponsible allegations against the respondent-husband and : 13 : 13 : 13 : admittedly the allegations were not substantiated by the appellant-wife. He placed reliance on the decision of the Apex Court in the case of Samar Ghosh Vs. Jaya Ghosh (2007 (4) Supreme Court Cases Page 511). He also placed reliance on another decision of the Apex Court in the case of Naveen Kohli Vs. Neelu Kohli [(2006) 4 Supreme Court Cases Page 558). He submitted that in the present case admittedly there is no chance of any reconciliation between the parties. He pointed out that parties have stayed separately for sufficiently long time and there is enough material on record to show that there is an irretrievable breakdown of marriage. He invited my attention to the law laid down by the Apex Court in the case of Samar Ghosh (supra) and especially paragraph No.79 of thereof. He submitted that one of the grounds considered by the Appellate Court is that many attempts were made of reconciliation by taking recourse to section 89 of the said Code but the said attempts totally failed. He pointed out that the learned Judge has noted that there is no possibility that the parties will come together and will enjoy happy marital life in future. He submitted that efforts were made for settlement even during the pendency of the : 14 : 14 : 14 : Second Appeal. However, the appellant-wife is not agreeable to dissolve the marriage by taking recourse to section 13(B) of the said Act of 1955. The learned counsel appearing for the appellant-wife stated that according to the appellant-wife still it is possible that the marriage can be revived and she was ready to cohabit with the respondent-husband. However, she is not agreeable for dissolving the marriage by a decree under section 13(B) of the said Act of 1955. 11. It will be necessary to refer to the findings recorded by the Appellate Court in the impugned judgment and decree. The first finding is regarding the FIR lodged by the appellant-wife on 03rd April, 2002. In the FIR the appellant-wife alleged commission of offences under section 498-A, 504 and 506 read with section 34 of Indian Penal Code against the respondent-husband and his relatives. A criminal application was filed in this Court for quashing the said FIR. The learned District Judge has noted in paragraph No.16 of the judgment that there was a settlement arrived at between the parties when the said application for quashing came up before this Court. In : 15 : 15 : 15 : the said Criminal Application No.1391 of 2002, the appellant-wife filed an affidavit stating that she had lodged the FIR on account of some misunderstanding and on account of wrong advise received by her. In the said affidavit she stated that she intended to continue her matrimonial relationship with the respondent-husband and she was willing to return to the matrimonial home. By the said affidavit the appellant-wife consented for quashing the FIR. The order dated 26th April, 2002 passed by this Court refers to the aforesaid affidavit of the appellant-wife and the fact that there was an amicable settlement between the appellant and respondent at the relevant time. Taking a note of the said settlement, this Court quashed the FIR. 12. The learned District Judge has rightly noted in paragraph No.16 of the judgment that the settlement arrived at between the parties at that time shows that the respondent-husband had condoned the acts of cruelty on the part of the appellant. The learned Judge, however, observed that by filing written statement in the present proceedings the appellant alleged that from the date of marriage she was mentally and physically : 16 : 16 : 16 : ill-treated by the respondent and his relatives. The relevant portion of paragraph No.16 reads thus: "...It is stated by the wife in her affidavit that, on account of some misunderstanding and because of wrong advise, she had lodged FIR in Gadhinglaj Police Station. No doubt, the matter was settled and the Hon’ble High Court quashed the FIR on 26.04.2002. No doubt, at that time, husband had condoned the cruelty. However, in the present proceeding, the wife has still alleged that from the date of marriage, she was mentally and physically ill-treated by husband and his aforesaid relatives. In my considered view, such allegations would amount to cruelty to the husband". 13. The learned Judge has again referred to the said FIR in paragraph No.22 of the judgment. In the said paragraph the learned Judge noted that parties lived together only for a period of about six months and there were constant disputes. The learned Judge proceeded to : 17 : 17 : 17 : hold thus: " The husband had reached to a mental position that, it was not possible for him to continue to live in future with the wife. The parties lived together for about six months only and there were constant disputes. Their physical relationship was not smooth. The husband cannot be blamed, if he formed an opinion that, he was treated with cruelty. Even, after the complaint under section 498-A of Indian Penal Code was quashed by the Hon’ble High Court, on the basis of settlement between husband and wife and even though the act of cruelty was condoned by husband, yet the wife reiterated that she had rightly lodged the complaint against husband, his mother etc by alleging that she was mentally and physically ill-treated. In this view of the matter, I am of considered view that, petitioner husband is entitled to a decree of divorce under section 13{1](i-a] of the Hindu Marriage Act". : 18 : 18 : 18 : 14. In paragraph No.16 of the judgment the learned Judge has held that the allegation of the appellant-wife that from the date of marriage she was mentally and physically ill-treated by the respondent-husband and his relatives amounts to cruelty to the respondent-husband. In my view, mere allegation made by the appellant-wife that she was ill-treated mentally and physically by the respondent-husband from the date of marriage by itself is not sufficient to come to the conclusion that the said allegation amounts to cruelty to the respondent-husband. The learned Judge has not even discussed as to what was the nature of the said allegations and what was the evidence adduced by the parties on the said allegations. It must be stated that the order dated 26th Apri, 2002 in Criminal Application shows that the respondent-husband condoned all the prior acts of cruelty. The present divorce petition was filed on 19th October, 2002. There is no evidence of any acts of cruelty by the appellant-wife from 26th April, 2002 to October 2002. Even taking the findings recorded by the appellate Court as it is, the decree of divorce passed on the ground of cruelty cannot be upheld. : 19 : 19 : 19 : 15. In paragraph No.17 of the judgment, the learned Judge dealt with allegations made by the appellant in the written statement. Paragraph No.17 of the judgment reads thus: "17. The wife in her affidavit-evidence has alleged and stated all the facts pleaded by her in written statement. She has denied all allegations of her husband. She has stated that her husband is a case of mania and psychosis. Such allegations in her written statement and in her evidence affidavit against husband who is a Government Officer would certainly amount to cruelty to him. Significantly in her cross examination she admitted that husband is not a psychic. She further admitted that during her stay of one month at Mahagaon (from 24-8-2001 till 26-9-2001) there was no any dispute. It means that, she had lodged false complaint against husband and his relatives in Gadhinglaj Police Station. The wife further stated in cross : 20 : 20 : 20 : examination that the husband had not decided to settle permanently at Jejuri. However, she denied the suggestion that she had made wrong allegations in her written statement and evidence affidavit". 16. I have perused the written statement filed by the appellant-wife. I have also perused the notes of evidence. It is true that the appellant-wife has repeatedly asserted the aforesaid allegations which are noted in paragraph No.17 of the judgment. Perusal of the copy of the petition for divorce filed by the respondent-husband shows that after the written statement was filed by the appellant making the aforesaid allegations, an amendment was not carried out for seeking a decree of divorce on the ground that the said allegations in the written statement caused mental cruelty to the respondent-husband. 17. In the affidavit in lieu of examination-in-chief, the respondent-husband has referred to various incidents during the matrimonial life. He has deposed as to how the appellant left the : 21 : 21 : 21 : house by taking certain valuables with her. He deposed under what circumstances he agreed to settle the dispute. In paragraph No.18 of the deposition the respondent-husband has referred to the written statement filed by the appellant-wife. He merely stated that the assertions and grievances made by the appellant-wife in the written statement were not true and correct. It is not specifically stated by him that a particular factual allegation or factual assertion made in the written statement has caused mental cruelty to him. 18. I have also perused the affidavit-in-lieu of examination-in-chief of the appellant-wife. It is true that in the affidavit-in-lieu of examination-in-chief, the appellant-wife has reiterated the allegations made in the written statement. In the cross-examination, the appellant-wife candidly admitted that her husband is not suffering from any psychological disorder or psychosis. The question is whether a decree of divorce could have been passed on the basis of allegations made in the pleadings. As set out earlier, the respondent-husband did not seek a decree of divorce on the said ground by amending his petition. Moreover, even in the : 22 :