It is not necessary that desertion would commence when the fact of separation and animus deserendi coexist u/S 13 of the HMA, 1955: Bombay High Court

 on 23 04 2021 on 23 04 FCA 1 191JudgmentIN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR.FAMILY COURT APPEAL No. 1 2019 Darshana W o Alok Borkar Age 42 years Occ. Service R o Plot No.25 Laghuvetan Colony Kamptee Road Nagpur 440014. APPELLANT.....VERSUS..…Alok Namdeo Borkar Age 45 years Occ. Service R o Plot No.123 Laghuvetan Colony Kamptee Road Jaripatka Nagpur 440014. R ESPONDENT Shri R.D. Bhuibhar counsel for the appellant.Shri S.V. Sirpurkar counsel for the respondent.CORAM : A. S. CHANDURKAR AND PUSHPA V. GANEDIWALA JJ.DATE ON WHICH ARGUMENTS WERE HEARD : 05 TH MARCH 2021 .DATE ON WHICH JUDGMENT IS PRONOUNCED : 06 TH APRIL 2021 . ORAL JUDGMENTandof the Hindu Marriage Act 1955of the Act of 1955 had not been proved by the husband. Onlyon the basis of a solitary instance that was alleged to have occurred on26.02.2007 the Family Court had proceeded to hold that the wife hadtreated the husband with cruelty. He referred to the pleadings of theparties as well as the evidence on record to submit that the case aspleaded by the husband was false. Though the marriage took place on30.12.2006 as per Hindu rites and customs the same was being denied bythe husband as according to him on that day they were merely engaged.There was evidence on record to indicate that after the marriage on30.12.2006 the couple had gone to Mumbai and had stayed there for aperiod of seven days. On 26.01.2007 as per Buddhist rites and custom the marriage was again solemnized. Even according to the husband therelations between them were normal and it was admitted by the husbandin paragraph 37 of his deposition that after 26.01.2007 the couple hadstayed together for about twenty days and both of them along with the on 23 04 2021 on 23 04 FCA 1 197Judgmentfamily members were happy. The wife was serving at Mumbai and whenshe did not return on 17.02.2007 the husband had made necessaryenquiries. She returned back on 25.02.2007 and on the next day she hadgone to the house of Shri Manish Mehta as it was his weddinganniversary. The allegations made by the husband that while returningback at night there was a quarrel between them as a result of which shewas left alone on the road could not be said to amount to cruelty so as towarrant passing a decree of divorce on that count. It was an admittedposition that from 26.02.2007 the parties have been residing separately.The fact that the divorce petition was filed almost two years thereafter on02.03.2009 indicated that the allegations with regard to cruelty were notgrave to warrant passing of any decree on that count. Though thehusband had examined himself he failed to examine any family memberor close relative to prove the alleged cruelty inflicted by the wife on thehusband. In that regard he placed reliance on the decision in SeemaSuman Kumar Sinha Versus Suman Kumar Sinha & OthersNo.653 2016. The pleadings in the divorce petitionwere not amended nor was there any evidence on record to indicate thatby virtue of such proceedings being initiated against the husband and hisfamily members he was required to undergo mental cruelty. It was hiscontention that a ground which was not the basis for initiation of theoriginal proceedings and became available subsequently ought to havebeen pleaded in view of the provisions of Section 20 of the Act of 1955.In absence of any pleadings or evidence in that regard there was noreason to come to the conclusion that on account of such acquittal in thecriminal proceedings a conclusion could be drawn that same has resultedin causing mental cruelty to the husband. For said purpose he placedreliance on the decision in Mangayakarasi Versus M. Yuvraj3SCC 786]. It was urged that the Hon’ble Supreme Court had observedtherein that acquittal from a criminal case if automatically treated as aground for granting divorce would be against the statutory provision. He on 23 04 2021 on 23 04 FCA 1 199Judgmentpointed out that this decision was rendered by the Bench of three learnedJudges and being later in point of time the same ought to be followed. Byholding that the husband was entitled to a decree of divorce on theground of cruelty on account of criminal proceedings being quashed thesame would result in granting divorce without any actual evidence ofcruelty. Referring to the decision in Shobha Rani Versus MadhukarReddi1 SCC 105] it was sought to be urged there was adistinction between the cruelty as contemplated between Section 498 Aof the Penal Code and that under Section 13(1)(i a) of the Act of 1955.The decree passed on that count was not sustainable. 7.On the aspect of desertion it was submitted that animusdeserendi of the wife to desert the husband had not been proved. Thewife was serving at Mumbai and was required to stay there often.Though it was the case of the husband that his father had suffered anaccident and thereafter he expired on 18.07.2007 the wife had not visitedher matrimonial home. It was however evident from the record as well asthe admissions of the husband that the fact that his father had suffered anaccident and had thereafter expired was never informed to the wife. Itwas only after she got information in this regard from her colleagues thatshe immediately went to Nagpur to attend the function with regard toimmersion of ashes. This act on the part of the wife clearly indicated that on 23 04 2021 on 23 04 FCA 1 1910Judgmentshe had no intention whatsoever to sever her ties with her husband. Onthe contrary she was kept in dark about the said accident and thesubsequent demise of her father in law. Placing reliance on the decisionin Adhyatma Bhattar Alwar Versus Adhyatma Bhattar Sri Deviit was urged that in absence of any such intention on the part ofthe wife to bring the cohabitation permanently to an end there was nocause for granting the decree for divorce on the ground of desertion.As regards the averments in paragraph 29 of the writtenstatement as amended it was submitted that the husband failed toconsequentially amend his petition for divorce. It was clearly pleaded bythe wife that her husband had contracted a second marriage and had twochildren from the same. The allegations in that regard could not be saidto be unsubstantiated inasmuch as the wife had brought on recordsubstantial evidence in the form of various photographs and the bail bondexecuted to secure bail for the second wife. The deposition of her sister in law also supported the pleadings as made and hence there was no basisfor the trial Court to hold that the wife had made false and recklessallegations against the husband. It was thus submitted that in absence ofany evidence either to indicate cruelty on the part of the wife and the factthat the desertion as alleged had not been proved there was no reason togrant a decree for divorce as was done by the learned Judge of the FamilyCourt. As regards the subsequent marriage of the husband which was on 23 04 2021 on 23 04 FCA 1 1911Judgmentalleged to have taken place on 09.12.2018 reliance was placed on thedecision in Smt.Lata Kamat Versus Vilasto urgethat the said marriage had been contracted prior to the time within whichthe appeal could be preferred and in contravention of Section 15 of theAct of 1955. The present appeal having been filed within limitation afterreceiving the certified copies the copying days in that regard were liableto be excluded and thus it was clear that the husband had in breach of theprovisions of Section 15 of the Act of 1955 contracted the second marriage.On this count also the husband was not entitled to any relief whatsoever.It was thus submitted that the judgment of the Family Court was liable tobe set aside and the petition for divorce ought to be dismissed.8.Per contra Shri S.V. Sirpurkar learned counsel for thehusband respondent supported the impugned judgment. According tohim there was sufficient evidence on record to indicate that the wife hadtreated the husband with cruelty and that her acts of filing frivolousproceedings under Section 498 A of the Penal Code resulted in causingmental cruelty. The behaviour of the wife especially on 26.02.2007 wasof such nature that the same resulted in causing mental distress to thehusband amounting to cruelty. The stand taken by the wife in herdefence had not been proved and the learned Judge of the Family Courtwas justified in holding in favour of the husband. Referring to the order on 23 04 2021 on 23 04 FCA 1 1912Judgmentpassed by this Court quashing the criminal complaint filed by the wifeagainst the husband and her family members under Section 498 A readwith Section 34 of the Penal Code it was submitted that since this Courthad observed that continuation of those proceedings would amount toabuse of the process of the Court that itself amounted to causing crueltyto the husband. The husband and his family members were required toface those proceedings which ultimately came to be quashed. The orderpassed by this Court was affirmed by the Hon’ble Supreme Court and thehusband was justified in placing the said judgment on the record of theFamily Court vide Exhibit 162. There was no reason to further amend thepleadings especially when it was an admitted fact that the husband andhis family members had been acquitted in those proceedings. Placingreliance on the decision in Rani Narasimha Sastri Versus Rani SuneelaRaniit was submitted that launching of suchprosecution by the wife making serious allegations which proceedingsended in acquittal amounted to cruelty on the part of the wife. It wasfurther urged that the allegations in paragraph 29 of the writtenstatement were not proved by the wife and therefore making such wildand reckless allegations also amounted to cruelty. The Family Court wasjustified in taking the same into consideration while granting the decreeof divorce. He also referred to the decision in Samar Ghosh Versus JayaGhosh4 SCC 511] and the judgment dated 20.02.2014 in First on 23 04 2021 on 23 04 FCA 1 1913JudgmentAppeal Nos.585 1996 584 1996 and 41 1996by the Division Bench atthe Nagpur Bench.9.On the aspect of desertion it was submitted that the intentionof the wife of not returning to the matrimonial home was evident fromher conduct. She had left the company of her husband voluntarily on26.02.2007 and had not returned thereafter. Assuming that she attendedthe function with regard to immersion of ashes of the husband’s fatherthat would not indicate her intention of re joining the company of herhusband. Even in the written statement it had not been pleaded that thewife was willing to resume cohabitation with the husband. Consideringthe overall material on record in that regard it was clear that the animusdeserendi on the part of the wife had been established. There was noreason to interfere with the decree of divorce on that count.As regards the subsequent marriage of the husband it wassubmitted that the same had been contracted after the period prescribedin Section 15 of the Act of 1955 had expired. The wife did not issue anynotice to the husband informing him of her intention to challenge thedecree for divorce. Relying upon the decision in Smt.Lila Gupta VersusLaxmi Narian & Othersit was submitted that suchmarriage was not void. On this basis it was urged that the learned Judge on 23 04 2021 on 23 04 FCA 1 1914Judgmentof the Family Court after considering the entire material on record waspleased to pass a decree for divorce and the same did not call for anyinterference. In any event it was submitted that since February 2007 thehusband and wife were residing separately and the marital ties betweenthem had been broken. It was thus submitted that considering all theseaspects there was no reason to interfere with the impugned judgment.10.In the light of rival submissions of the parties the followingpoints arise for determination:a.Whether the husband has proved that he is entitled to begranted divorce on the ground of cruelty b.Whether acquittal of the husband and his family members inproceedings under Section 498 A of the Penal Code by itselfwould amount to causing mental cruelty c.Whether the husband has proved that his wife deserted himso as to constitute a ground for divorce d.What is the effect of the subsequent marriage of the husband e.Whether the judgment of the Family Court deserves to beinterfered with 11.AS TO POINTof the Act of 1955 there should be treatment of thepetitioner with such cruelty that would cause a reasonable apprehensionin the mind that it would be harmful or injurious for the petitioner to livewith the other party. Cruelty has to be distinguished from the ordinarywear and tear of the family life and it has to be adjudged on the basis ofthe course of conduct which would in general be dangerous for thespouse to live with the other. These observations can be found in thedecision in Savitri Pandey5 SCC 706]. In Samar Ghoshvarious illustrativeinstances have been referred to in paragraph 101 of the said decision. on 23 04 2021 on 23 04 FCA 1 1917JudgmentOn consideration of the evidence on record led by the partieson the aspect of cruelty it is found that the husband seeks to rely mainlyon the incident that was alleged to have occurred in the night of26.02.2007. According to the husband when he had gone to fetch hiswife from the house of Shri Manish Mehta he met her at Panchpaolibridge and there was a quarrel between them in which the wife abusedhim and refused to accompany him back. On the other hand according tothe wife there was a quarrel between them on 26.02.2007 but it was thehusband who was under intoxication and he had assaulted her and alsoabused her. Besides this solitary instance the husband has not led anyfurther evidence to substantiate his plea for grant of divorce on theground of cruelty. No doubt it was urged on behalf of the husband thatfiling of false criminal case and making unfounded allegations against thehusband in the written statement also amount to cruelty said aspect isbeing dealt with separately. Insofar as the incident alleged to haveoccurred on the night on 26.02.2007 is concerned we find that theevidence on record is in the nature of word against word. The quarrelthat took place between the husband and wife can at the highest be saidto arise out of ordinary wear and tear of marriage. It is not a quarrel ofsuch nature that could be stated to be of such a level or gravity to holdthat the same amounted the wife inflicting cruelty on the husband. Asheld in Samar Ghoshmere trivial irritations quarrels normal on 23 04 2021 on 23 04 FCA 1 1918Judgmentwear and tear of married life which occur in day to day life would not beadequate to grant divorce on the ground of mental cruelty. It is thusfound that the pleadings of the husband and the evidence on record insupport of the plea that the wife had treated the husband with cruelty arenot of such nature or gravity that would furnish a ground to the husbandto have an apprehension in his mind that it would be harmful or injuriousto him to live with his wife. On these pleadings referred to hereinaboveand the evidence in that regard it is found that the husband has failed toprove that the wife treated him with cruelty so as to furnish a ground fordivorce under Section 13(1)(i a) of the Act of 1955.14.It was the contention of the learned counsel for the husbandthat by making vague false and unsubstantiated allegations in the writtenstatement amounted to causing mental cruelty by the wife to thehusband. Reference was made to the averments in paragraph 29 of thewritten statement wherein it was pleaded that the husband hadperformed second marriage with one Sweety Ambade. From the saidwedlock it was claimed that the couple had two children and they wereall staying together at Surat. It was urged that the evidence on record ledby the wife did not substantiate the pleadings in paragraph 29 in thewritten statement as amended. on 23 04 2021 on 23 04 FCA 1 1919JudgmentComing to the aspect as to whether the pleadings inparagraph 29 could be said to be vague or unsubstantiated we find thatfrom the material brought on record by the wife said contention would bedifficult to accept. The expression “unsubstantiated” means somethingwhich is not supported or proven by evidence. Something that has nobasis whatsoever. For the present purpose unsubstantiated allegationswould mean allegations that are not supported by any materialwhatsoever or proven by leading evidence. After the wife amended herwritten statement pursuant to the order passed below Exhibit 103 on22.07.2016 she moved an application below Exhibit 109 under theprovisions of Order XVIII Rule 17 of the Code of Civil Procedure 1908(for short ‘the Code’). She prayed that the witnesses examined by thehusband including the husband be permitted to be cross examined withregard to the amended portion of the written statement. This applicationwas allowed by the trial Court on 21.10.2016. 15.To substantiate these averments the wife examined her sister in law Smt.Preety Borkar who was the wife of the younger brother of thehusband at Exhibit 128. She deposed that she had in fact filed theaforesaid criminal complaint case against her husband and his familymembers. In the cross examination of the husband he was shown thecertified copy of the charge sheet filed in Regular Criminal Case No.2507 on 23 04 2021 on 23 04 FCA 1 1920Judgmentof 2015 which is at Exhibit 114. He admitted that his family membershad been arrayed as accused therein. He was then confronted with thebail bond that was furnished for releasing his second wife Sweety Borkaron bail who was arrayed as accused no.4. The surety therein was themother of said Sweety Borkarand the place ofresidence is shown as Honey Park Road Surat. Pertinently the husbandwas arrayed as accused no.3 and the residential address as shown is thesame as the one shown of accused no.4 Smt.Sweety Alok Borkar(Ambade). The husband in his cross examination stated that he was notpresent when the name of Sweety was mentioned as “Sweety AlokBorkar”. However he admitted that till date he had not filed anyapplication before the said Court raising objection to the wrong mentionof the said name. He admitted that his address shown in the bail bondwas at Surat.16.Pursuant thereto the husband was cross examined on theaverments in amended paragraph 29 of the written statement. This cross examination was conducted on 17.11.2016 and 03.12.2016. In the saidcross examination various photographs placed on record by the wifewere marked at Exhibits 118 to 123. The cross examination indicates on 23 04 2021 on 23 04 FCA 1 1921Judgmentspecific suggestion made to the husband that in the said photographs hissecond wife Sweety along with their children could be seen. No doubtthe husband denied the said suggestion. Thereafter the wife alsoexamined her sister in law at Exhibit 128 and in her deposition sherecognized the husband and his second wife. She was cross examinedand it was suggested that since her relations with her husband who wasthe younger brother of Alok were strained she was supporting the wife.This was denied by the said sister in law. This piece of evidence is beingreferred to to indicate that after amending the written statement andalleging that the husband had re married and two children were born thewife had taken steps to substantiate these allegations. In that regard sheplaced on record various photographs indicating presence of her husbandand his second wife along with their children. The bail bond executed inRegular Criminal Case No.25015 by accused no.4 Sweety AlokBorkarwas also brought on record. In the light of this materialbrought by the wife after amending her written statement we are of theview that the allegations made in paragraph 29 did not remainunsubstantiated. The wife did take steps to prove those allegations bybringing on record relevant material. What matters is the nature ofevidence brought on record to substantiate the allegations as made.Whether such allegations were proved or not would then depend on thequality of evidence brought on record. In other words the wife after on 23 04 2021 on 23 04 FCA 1 1922Judgmentalleging that the husband had performed his second marriage and hadtwo children from the same brought on record various photographsindicating her husband and his subsequent family as well as the bail bondexecuted by his second wife for securing bail. The address mentionedtherein of Sweety Ambade was similar to the address mentioned by thehusband at Surat. Efforts were thus taken to substantiate or prove theallegations as made. This evidence cannot be simply brushed off as beingirrelevant. Same has to be evaluated on the touchstone of preponderanceof probabilities. Thus it is held that the allegations made in paragraph 29of the written statement did not remain unsubstantiated and the wife hadtaken steps as were permissible in law to prove the same. Pertinently though the wife amended her written statement the husband did notconsequentially amend the divorce petition. As a result the averments inparagraph 29 remained untraversed by the husband. In such situation theprovisions of Order VIII Rules 3 and 4 of the Code of Civil Procedure 1908 would come into play. This would be another reason to hold thatthe allegations made in paragraph 29 of the written statement did notremain unsubstantiated. These allegations therefore cannot be taken intoconsideration for holding that the wife was guilty of levellingunsubstantiated allegations against the husband so as to furnish aground to the husband to rely upon for grant of divorce on the ground ofcruelty. on 23 04 2021 on 23 04 FCA 1 1923JudgmentThe allegations purported to have been made by the wifeagainst her mother in law are not of such grave nature to warrant passingof decree for divorce on the ground of cruelty only on that count. This isafter considering the evidence of the wife as well as her witness Shri.Mehta.17.AS TO POINTNo.653 2016 seekingquashing of the said first information report as well as the charge sheet asfiled. On 18.01.2018 this Court by observing that continuation of thecriminal trial against the said accused would result in the abuse of theprocess of the Court proceeded to quash the first information report andcharge sheet for the offence punishable under Section 498 A read withSection 34 of the Penal Code. The prosecution under Section 494 o tfhePenal Code was permitted to proceed. A copy of this judgment was placedon record by the husband below Exhibit 162 along with application dated on 23 04 2021 on 23 04 FCA 1 1924Judgment18.07.2018 at Exhibit 160. Shortly thereafter the proceedings before theFamily Court were fixed for arguments and on 28.08.2018 the learnedJudge of the Family Court proceeded to decide the petition filed by thehusband and allowed the same. The consideration of the judgment inthese criminal proceedings by the Family Court is from paragraph 55onwards in the impugned judgment. In the light of the observationsmade by this Court while quashing the criminal proceedings underSection 498 A read with Section 34 of the Penal Code the learned Judgeobserved that the filing of such criminal proceedings amounted to crueltyon the part of the wife against the husband and his family members. Thequashing of the said criminal proceedings is the principal ground in theimpugned judgment for holding that the husband had proved that theacts of the wife had resulted in causing cruelty to him.18.In the aforesaid context the question that arises is whetherthe learned Judge of the Family Court was justified in recording thefinding that by virtue of quashing of the criminal proceedings initiated bythe wife under Section 498 A read with Section 34 of the Penal Codesuch initiation of criminal proceedings and its prosecution amounted tocausing mental cruelty to the husband. As stated above CriminalApplicationNo.653 2016 was decided by this Court on18.01.2018. The husband did not bring on record the factual aspect of on 23 04 2021 on 23 04 FCA 1 1925Judgmentquashing of the said proceedings by seeking to amend the divorcepetition. Though the aforesaid proceedings were initiated on 26.07.2016this fact of initiation of such proceedings and its continuation resulted incausing mental cruelty was not brought on record. The husband or hiswitnesses did not depose about the pendency of the said proceedingseither. As a result there was no material whatsoever on record todetermine whether initiation and prosecution of such proceedingsresulted in causing mental cruelty except the order passed by this Courtin the said criminal proceedings in the form of the judgment dated18.01.2018 at Exhibit 162.19.As per provisions of Section 20(1) of the Act of 1955every petition presented is required to state as distinctly as the natureof the case permits the facts on which the claim to relief is founded.Under Section 20(2) the statements contained in the petition arerequired to be verified by the petitioner in the manner required by lawfor verification of claims. As per provisions of Section 21 of the Act of1955 subject to other provisions in the said Act and to such rules thatthe High Court may make in that behalf the proceedings under the Actof 1955 are regulated by the Code of Civil Procedure 1908. Section20(1) thus requires pleading of the necessary facts on the basis ofwhich the claim to relief is founded. In other words if according tothe petitioner a fact is found relevant that gives a cause of action to on 23 04 2021 on 23 04 FCA 1 1926Judgmentseek relief under the Act of 1955 the same has to be stated as distinctlyas the nature of the case permits. In this regard useful reference maybe made to the following observations in paragraph 27 of the recentdecision of the Hon’ble Supreme Court in Transferred Case No.25 2021[Aman Lohia Versus Kiran Lohia] decided on 17.03.2021 which read asunder:“27.Indubitably the Family Court is obliged toinquire into the matter as per the procedure prescribed bylaw. It does not have plenary powers to do away with themandatory procedural requirements in particular whichguarantee fairness and transparency in the process to befollowed and for adjudication of claims of both sides. Thenature of inquiry before the Family Court is indeed adjudicatory. It is obliged to resolve the rival claims ofthe parties and while doing so it must adhere to thenorms prescribed by the statue in that regard and also thefoundational principle of fairness of procedure andnatural justice.”This requirement prescribed by Section 20(1) of the Act of1955 has been held to be not one of mere form but of substance in NishaChandrashekhar Khobragade Versus Chandrashekhar GopichandKhobragadeon which reliance wasplaced by the learned counsel for the wife. on 23 04 2021 on 23 04 FCA 1 1927Judgment20.By virtue of the provisions of Section 21 of the Act of 1955the provisions of the Code have been made applicable to proceedingsunder the Act of 1955 and as a result the requirements of provisions ofOrder VI Rules 2 to 4 of the Code are attracted. This implies that apetition filed under the Act of 1955 except one filed under Section 11 hasto answer the aforesaid requirements. Rule 4 of the Hindu Marriage andDivorce Rules 1955 framed by the Bombay High Court under Sections 14and 21 of the Act of 1955 also highlight these requirements besidesreferring to provisions of Order VII Rule 1 of the Code as well as Section20(1) of the Act of 1955. It cannot be lost sight of that despite theprovisions of Section 21 of the Act of 1955 requiring regulation of theproceedings under the Act of 1955 to be in accordance with the Code Section 20(1) has been enacted. In other words it has been emphasizedthrough Section 20(1) of the Act of 1955 that the pleadings on the basisof which a claim to relief is founded are necessary. The intention is thusclear that the opposite party should be in a position to meet the case aspleaded by the other party and should not be taken by surprise by a casenot pleaded.It cannot be disputed that acts subsequent to the filing of thedivorce petition can be taken note of to show a pattern in the behaviourand conduct of a party as held in A. Jayachandra Versus Aneel Kaur[(2005) 2 SCC 22]. Equally well settled is the proposition that in the on 23 04 2021 on 23 04 FCA 1 1928Judgmentabsence of necessary pleadings no amount of evidence can be looked into.The fundamental rules in this regard have been referred to in BachhajNahar Versus Nilima Mandal & Another17 SCC 491] which areas under:“10. .(i) No amount of evidence can be looked into upon a plea which was never put forward in thepleadings. A question which did arise from the pleadingsand which was not the subject matter of an issue cannotbe decided by the court.(ii)A court cannot make out a case not pleaded.The court should confine its decision to the questionraised in pleadings. Nor can it grant a relief which is notclaimed and which does not flow from the facts and thecause of action alleged in the plaint.(iii) ..”The observations in paragraph 10 of the decision in BhagwatiPrasad Versus Chandramaulthat to allow one partyto rely upon a matter in respect of which the other party did not leadevidence and had no opportunity to lead evidence would introduceconsiderations of prejudice and in doing justice to one party the Courtcannot do injustice to another also cannot be lost sight of.21.At this stage it would be necessary to refer to the decision inMangayakarasithat was relied upon by the learned counsel for on 23 04 2021 on 23 04 FCA 1 1929Judgmentthe wife. The facts therein indicate that the husband had initiatedproceedings for dissolution of the marriage while the wife had filed apetition for restitution of conjugal rights. The trial Court dismissed thepetition filed by the husband and allowed the petition filed by the wife.The appeal filed by the husband challenging the judgment of the trialCourt came to be dismissed after which the husband filed a secondappeal. During pendency of the proceedings the criminal prosecutioninitiated by the wife against the husband for harassment on account ofdemand of dowry resulted in acquittal of the husband. The High Courttherefore considered the effect of such acquittal. The High Court withoutinterfering with the findings recorded by the Courts below which hadheld that cruelty had not been proved by the husband relied upon thejudgment rendered in the criminal proceedings and granted the relief ofdissolution of the marriage in view of the acquittal of the husband. Inthat backdrop the Hon’ble Supreme Court held that if the finding withregard to cruelty was rendered merely on the basis of the judgment ofacquittal in the criminal proceedings it would lead to a situation that inevery case if criminal proceedings are filed by one of the parties to themarriage and the same end in acquittal it would have to be automaticallytreated as a ground for granting divorce which would be against thestatutory provisions. It was noted that in the proceedings seekingdissolution of marriage the husband had not referred to the criminal on 23 04 2021 on 23 04 FCA 1 1930Judgmentproceedings filed against him by the wife and that was not the basis forseeking divorce. The judgment of the High Court was accordingly setaside. This judgment dated 03.03.2020 has been rendered by the Benchof three learned Judges.22.The learned counsel for the husband on the other handsought to rely upon the decision in Rani Narasimha Sastrihas observed in clear terms that the situation thatin every criminal case ending in acquittal it were to be automaticallytreated as a ground for granting divorce it would be against the statutoryprovisions. On the other hand in Rani Narasimha Sastrisuchacquittal in the criminal proceedings has been considered as furnishing a on 23 04 2021 on 23 04 FCA 1 1932Judgmentground to make out a case of cruelty. In the light of the fact that thedecision in Mangayakarasihas been rendered by the Bench ofthree learned Judges and is also subsequent in point of time to thedecision in Rani Narasimha Sastrirendered by a Bench of twolearned Judges we find ourselves respectfully bound by the decision inMangayakarasiisalso somewhat similar to the case in hand inasmuch as the grounds onwhich decree of divorce on the ground of cruelty was sought were foundto be insufficient and the Court proceeded to grant divorce only on theground that the husband was acquitted in the criminal proceedingsinitiated by the wife. Such a conclusion without any factual basis wasfound to be against the statutory provisions.24.In Shobha Ranithe Hon’ble Supreme Court in thecontext of proceedings for divorce observed in paragraph 10 that theCourt was concerned with the matrimonial conduct which constitutescruelty as a ground for dissolution of marriage. Such cruelty if notadmitted is required to be proved on the preponderance of probabilities.We may also refer to the observations in paragraph 11 of thedecision in Raj Talreja Versus Kavita Talreja14 SCC 194] whichare as under:“11.Cruelty can never be defined with exactitude. Whatis cruelty will depend upon the facts and circumstances of each on 23 04 2021 on 23 04 FCA 1 1933Judgmentcase. In the present case from the facts narrated above it isapparent that the wife made reckless defamatory and falseaccusations against her husband his family members andcolleagues which would definitely have the effect of loweringhis reputation in the eyes of his peers. Mere filing ofcomplaints is not cruelty if there are justifiable reasons to filethe complaints. Merely because no action is taken on thecomplaint or after trial the accused is acquitted may not be aground to treat such accusations of the wife as cruelty withinthe meaning of the Hindu Marriage Act 1955Mh.L.J. 825] thehusband had filed proceedings for grant of divorce on the ground ofcruelty alleging that the wife had initiated false prosecution against thehusband and his family members under Section 498 A of the Penal Code.It was pleaded that the prosecution as conducted resulted in causingmental cruelty to the husband and his family members. The saidprosecution had ended in acquittal of the husband and his family members.The Family Court held that the husband had failed to substantiate allegationsas made. In the appeal preferred by the husband one of the contentionsraised was that since the husband and his family members were acquitted on 23 04 2021 on 23 04 FCA 1 1934Judgmentin the criminal proceedings initiated by the wife it was clear that by filingsuch a false case the wife inflicted mental cruelty on the husband. TheDivision Bench took into consideration the manner in which the trialproceeded before the learned Magistrate in the proceedings initiated bythe wife. It also considered the evidence on record. In paragraph 27 ofthe said decision it has been observed as under:“27. .Whether an order of acquittal in criminalprosecution lodged at the instance of the spouse amounts tocruelty will depend upon the facts and circumstances of eachcase. Whether the criminal Court has recorded a findingthat the prosecution case was false is again not a clinchingfactor. Considering the evidence on record the MatrimonialCourt will have to decide whether the prosecution whichresulted into acquittal will amount to an act of cruelty. In agiven case depending upon the evidence on record even ifthe acquittal is on the ground that the charge could not besubstantiated and even if there is no finding recorded by theCriminal Court that the prosecution case was false there canbe a case of cruelty. It depends on the manner in which thecomplaint is filed and prosecuted.”In A Versus B being Family Court Appeal Nos.205 and206 2007 decided on 13.04.2016 decided at the Principal Seat the factsindicate that the husband had filed proceedings for grant of divorce onthe ground of cruelty. The wife filed proceedings seeking maintenancefrom the husband. While the petition for grant of divorce was dismissedthe husband was directed to pay maintenance at the rate of Rs.7 000 on 23 04 2021 on 23 04 FCA 1 1935Judgmentper month. The husband preferred two appeals. During pendency of thesaid appeals the petition for divorce was amended on the basis of asubsequent development that was acquittal of the husband and his familymembers in the criminal proceedings initiated by the wife under Sections498 A 406 354 read with Section 34 of the Penal Code. After framingan additional issue in that regard the parties were permitted to leadevidence before the Family Court. While considering that evidence thisCourt found that only a certified copy of the judgment of acquittal passedby the learned Magistrate was placed on record. The copies of notes ofevidence in the criminal trial were not placed on record. It was observedafter referring to the decision in Mrs.Mthat only on the basis ofthe judgment of acquittal it could not be held that cruelty wasestablished by the husband.26.The aforesaid decisions thus hold that acquittal simplicitor inthe criminal proceedings initiated by the wife against the husband and hisfamily members by itself would not be sufficient to hold that initiation ofsuch proceedings resulted in causing mental cruelty to the husband. Infact in these decisions it is seen that the evidence led before the CriminalCourt was placed on record and despite that in the facts of the case theDivision Bench held that such evidence was insufficient to hold that thesame was a cause of mental cruelty. As noted above in the present case on 23 04 2021 on 23 04 FCA 1 1936Judgmentexcept for placing on record certified copy of the judgment of this Courtin Criminal ApplicationNo.653 2016 there is no further materialplaced. Neither are the pleadings amended nor is the evidence recordedin the criminal proceedings sought to be brought on record. Thejudgment in the case of Bhojraj Sakharam Nagdeveisdistinguishable in view of the fact that the Court found reference beingmade to cruelty on account of filing criminal cases in the evidence of theparties therein.27.In the case in hand though the criminal proceedings wereinitiated by the wife in the year 2016 when the proceedings were pendingbefore the Family Court the husband made no attempt to bring this facton record. He did not depose that on account of initiation of suchproceedings by the wife he and his family members were required toundergo stress and ignominy on account of the criminal proceedings thusresulting in mental cruelty. The judgment of acquittal was placed onrecord of the Family Court on 18.07.2018 and the impugned judgmentwas passed on 28.08.2018 which principally relies upon the acquittal ofthe husband and his family members in the criminal proceedings. Wethus find that it was necessary for the husband to have in compliancewith the requirements of Section 20(1) read with Section 21 of the Act of1955 at least pleaded about the initiation of the criminal proceedings by on 23 04 2021 on 23 04 FCA 1 1937Judgmentthe wife and its subsequent culmination in an order of acquittal may beby amending the proceedings. Such course not having been followed itbecomes clear that circumstances not pleaded by the husband nordeposed as causing mental cruelty have been taken into consideration forgranting the relief of decree of divorce on the ground of cruelty especiallywhen the ground on which such claim was based was not found to besufficient to pass such decree. Pointas framed is accordinglyanswered by holding that in the facts of the present case initiation ofproceedings under Section 498 A of the Penal Code by the wife andsubsequent acquittal of the husband and his family members by itselfwould not amount to causing mental cruelty.28.AS TO POINTit is not necessary that desertionwould commence when the fact of separation and animus deserendi co exist. It is not necessary that they should commence at the same time.De facto separation may commence without the necessary animus or theseparation and animus deserendi may also coincide in point of time. Asper explanation in Section 13(1) of the Act of 1955 the expression “desertion”means desertion by the other party to the marriage without reasonablecause and without the consent or against the wish of such party.31.From the evidence on record it can be seen that the husbandalleges that from 26.02.2007 his wife deserted him and there has been nocohabitation thereafter. He admits however in his cross examination thathe had no objection to his wife pursuing the course in Pilot training. Healso did not have any objection to her future education and development.According to the wife she was pursuing her course in Pilot training atBaramati and Mumbai. The same had the consent of her husband. As on 23 04 2021 on 23 04 FCA 1 1941Judgmentand when permissible she stated that she and her husband were residingtogether at Baramati Mumbai and Nagpur. The conduct of the wife can begathered from the fact that after getting information of the death of herfather in law on 18.07.2007 she immediately rushed to Nagpur to attendthe ashes immersion rituals. She got the information about the death ofher father in law from her colleagues and the husband in his cross examinationhas clearly admitted that he did not inform his wife about the fact that hisfather had suffered an accident in May 2007 and had thereafter expiredon 18.07.2007. The fact that the wife immediately chose to come to Nagpurand attend the religious ritual after the death of her father in law despitenot being informed by her husband clearly indicates absence of animusdeserendi on her part. The evidence of the husband and wife when consideredtogether indicates that the husband has not been able to prove that thewife had left his company with a view not to rejoin him in future and thatit was without reasonable cause. On the contrary the wife was pursuingthe training course for becoming a Pilot at Baramati and Mumbai and thehusband had no objection to this avocation of the wife. Though it wasurged by the learned counsel for the husband that in the writtenstatement it had not been pleaded by the wife that she was willing toresume cohabitation with her husband such statement has beenspecifically made in paragraph 10 of affidavit of wife at Exhibit 67. Infact there is no suggestion made to her that such statement made by herin paragraph 10 was incorrect. on 23 04 2021 on 23 04 FCA 1 1942JudgmentIn the light of the fact that the wife in July 2007 after thedeath of her father in law had come to Nagpur for attending the religiousritual it becomes clear that even at that point of time animus deserendicannot be gathered from her conduct. It is to be noted that the divorcepetition was filed on 02.03.2007 and as per the provisions of Section13(1)(i b) such desertion has to be for a continuous period of two yearsimmediately preceding presentation of the divorce petition. Seen fromthis angle the period of two years had not been completed on 02.03.2009in the backdrop of the admitted position that in July 2007 the act of thewife of attending the religious function after the death of her father in law did not indicate her intention to desert her husband. Theobservations in Adhyatmarelied upon by the learned counsel forthe wife support her contention. Pointis answered accordingly.32.AS TO POINTto substantiate his contention. On the other hand thelearned counsel for the husband by placing reliance on the decision inLila Guptasubmitted that a marriage contracted in contraventionof Section 15 of the Act of 1955 would not be void and the woman whowas so married after passing of the decree for divorce could not be deniedthe status as a legally wedded wife.At the outset it may be noted that during pendency of theproceedings before the Family Court the wife by amending the writtenstatement had pleaded that her husband had contracted second marriagewith one Sweety Ambade and had thereafter led evidence to substantiatethat allegation. The evidence in that regard has been referred to whileanswering Pointa marriage contracted in violation of the proviso to Section 15 ofthe Act of 1955 would not be void but would be merely invalid. Thesame would not affect the core of marriage and the parties would besubject to a binding tie of wedlock flowing from the marriage. As per theproviso to Section15 of the Act of 1955 it was not lawful for either partyto marry again unless the period of one year had elapsed from the date ofthe decree. This proviso was thereafter deleted in view of the provisionsof Section 10 of Act 676. This decision rendered by the Bench of on 23 04 2021 on 23 04 FCA 1 1944Judgmentthree learned Judges has been subsequently referred to and followed inAnurag Mittal Versus Shaily Mishra Mittal9 SCC 691]. It isthus a settled position that a marriage contracted during the periodprescribed by Section 15 of the Act of 1955 would not be void but merelyinvalid.The decision in Lata Kamatrelates to the aspect as towhether the period required for obtaining certified copies of the judgmentof the trial Court could be excluded while determining the periodstipulated by Section 15 of the Act of 1955. It has been held therein thatin view of the provisions of Section 12(2) of the Limitation Act 1963 thetime required for obtaining copies of the impugned judgment would haveto be excluded while computing the period of limitation in filing theappeal and thus also for the purposes of Section 15 of the Act of 1955.The present appeal was filed within limitation excluding the number ofcopying days required for obtaining the certified copy of the judgment ofthe Family Court.It is thus clear that in the present case the appeal was filed bythe wife within limitation and before “the time for appealing hasexpired”. Prior thereto the husband contracted second marriage. Thoughit was not lawful for the husband to re marry the same would not renderthe alleged marriage said to be contracted by the husband on 09.12.2018void. In that view of the matter we find that nothing much would turn on on 23 04 2021 on 23 04 FCA 1 1945Judgmentthe basis of this subsequent development. Pointstands answeredaccordingly.33.AS TO POINTit has been further held that the allegations made by the wife againstthe husband in paragraph 29 of the written statement were notunsubstantiated and that she had led evidence to prove the same. Similarlyin the absence of any plea or evidence being led by the husband to provethat he had to suffer cruelty on account of initiation of criminal proceedingsby the wife mere acquittal in those proceedings was not sufficient toconclude that this resulted in causing mental cruelty to the husband. Inother words cruelty has been held to be proved not on grounds pleadedbut on the assumption that quashing of criminal proceedings in respect ofone offence out of two by itself resulted in cruelty. on 23 04 2021 on 23 04 FCA 1 1946JudgmentAs regards the ground of desertion the only considerationthereof is in paragraph 57 of the impugned judgment. The fact that thewife after the death of her father in law and without being informed ofthe same by her husband had visited Nagpur to attend the final rites ofthe deceased father in law have not been referred to in the impugnedjudgment. Only on the premise that after 26.02.2007 the wife did not tryto resume cohabitation a finding has been recorded that she had desertedher husband. This finding has been found to be incorrect whileanswering Pointwe are satisfied that the grounds pleaded for grantof divorce have not been proved. The impugned judgment thus is liableto be set aside.34.Though it was urged on behalf of the husband that thefacts on record indicated that there was an irretrievable breakdown of themarital ties we find that the same by itself cannot constitute a ground forsevering the marital ties by passing a decree of divorce. In the absence of anystatutory ground being proved by the husband the decree for divorcecannot be sustained only for the reason that there appeared to be anirretrievable breakdown of the marriage. Pointstands answeredaccordingly. on 23 04 2021 on 23 04 FCA 1 1947Judgment35.As a result of the aforesaid discussion the following order ispassed: (i)The judgment of the Family Court in Petition No.A177 2009dated 28.08.2018 is quashed and set aside.(ii)Petition No.A177 2009 stands dismissed.(iii)Family Court Appeal No.1 2019 is allowed. In the facts ofthe case the parties to bear their own costs. (SMT. PUSHPA V. GANEDIWALA J.)(A.S. CHANDURKAR J.)APTEAt this stage learned counsel for the respondent prays thatthe effect of the present judgment be stayed for a period of twelve weeks.This request is opposed by the learned counsel for theappellant.In the facts of the case this judgment shall operate after aperiod of eight weeks from today. (SMT. PUSHPA V. GANEDIWALA J.)(A.S. CHANDURKAR J.)APTE 

Summary: In the event that a spouse deserts the other, it is pertinent to note whether there was an intention to bring the cohabitation to an end and to also scrutinize whether an animus deserendi existed. It was seen in the matter of Darshana v Alok Borkar [FMA No. 1/2019], by the Bombay High Court bench comprising of A.S Chandukar J. and Pushpa V. Ganediwala J. in a matter surrounding issues of divorce, desertion, and subsequent marriage of the husband.  The facts of the case arose out of numerous circumstances clubbed together. The husband and wife had solemnized their marriage in 2006 and stayed together for a month after which various sporadic issues started taking place between them. There were instances of guilty which howsoever remained unproved and an instance of desertion by the wife. The husband eventually considered the desertion to be the final nail and initiated divorce proceedings. Meanwhile, he also had a subsequent marriage. The wife filed a suit for cruelty in the lower courts, and now the present appeal lies before the present court. The bench narrowed down the issues to three:
• Whether the husband has proved that his wife deserted him so as to constitute a ground for divorce?
• What is the effect of the subsequent marriage of the husband?
• Whether the judgment of the Family Court deserves to be interfered with? To constitute desertion, the court was convinced that it must be shown that there is an intention to bring the cohabitation permanently to an end thus constituting animus deserendi. Desertion would be a matter of inference to be drawn from the facts and circumstances of the case and even if there has been separation the question to be considered is whether that act could be attributable to an animus deserendi. As observed in Lachman Utamchand Kirpalani Versus Meena alias Mota [AIR 1964 SC 40] it is not necessary that desertion would commence when the fact of separation and animus deserendi coexist. It is not necessary that they should commence at the same time. As per the explanation in Section13 (1) of HMA Act of 1955 the expression “desertion” means desertion by the other party to the marriage without reasonable cause and without the consent or against the wish of such part. In the issue of subsequent marriage, according to the husband with the same lady is now stated to have been contracted on 09.12.2018. It was found that in view of the decision in Lila Gupta v Laxmi Narian &amp; Others [AIR 1978 SC 1351], a marriage contracted in violation of the proviso to Section 15 of the Act of 1955 would not be void but would be merely invalid. The same would not affect the core of marriage and the parties would be subject to a binding tie of wedlock flowing from the marriage. As per the proviso to Section15 of the Act of 1955 it was not lawful for either party to marry again unless the period of one year had elapsed from the date of the decree.  After a perusal of the impugned judgment, the court opined that the learned Judge of the Family Court recorded a finding that filing criminal proceedings under Section 498-A of the Penal Code against the husband and his family members which proceedings came to be quashed by this Court amounted to cruelty on the part of the wife. There was no specific finding recorded that the ground of cruelty as pleaded in the divorce petition had been duly proved on the basis of the evidence led before the Family Court. The ground of cruelty was based on the incident dated 26.02.2007 which has not been proved.