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2025 DIGILAW 128 (GUJ)

Manisha Anandkumar Patel D/o Girishbhai Patel v. Anankumar Kanubhai Patel S/o Kanubhai Jivanlal Patel

2025-02-19

BIREN VAISHNAV, HEMANT M.PRACHCHHAK

body2025
JUDGMENT : HEMANT M. PRACHCHHAK, J. 1. Present First Appeal is filed under Section 96 of the Civil Procedure Code by the appellant wife against the judgment and decree dated 13.10.2022 passed by the learned Principal Judge, Family Court Mahesana (hereinafter referred to as the "Family Court") in Family Suit No. 38 of 2021, whereby the marriage solemnized between present appellant and defendant was dissolved with effect from the date of judgement. 2. The brief facts giving rise to present appeal are that the marriage of the appellant was solemnized with opponent on 10.12.2019 according to Hindu rights and rituals at Patan. After marriage the appellant and opponent became legally husband and wife. 2.1 After marriage, the appellant and opponent were residing in their matrimonial home at Jotana. From the said wedlock, the appellant gave birth to two female children named "Foram" and "Ishani". The appellant was doing job at Kadi and for the said reason she daily travelled from Jotana to Kadi. 2.2 Thereafter, somewhere in 2010 the appellant and opponent had decided to buy a home at Mahesana, and subsequently a bunglow was purchased at "Shukan Bunglows" at Mahesana. Thereafter, in 2012 both the parties shifted to Mahesana and started residing together in new bunglow namely "Shukan Bunglows" at Mahesana. For the said purpose, the family of the appellant had borrowed a sum of Rs.10 lakhs from the father of the opponent. The said amount had been returned to the opponent subject to the family settlement at Ex.28 and Ex.29 of the record dated 29.01.2016. 2.3 Thereafter, the appellant came to know that her husband had given an advertisement to sell the house in a newspaper on 3.4.2016 and for the said reason, an altercation took place between the husband and wife. Therefore, criminal proceedings was initiated by the appellant under Section 498A of I.P.C. against the opponent and his family members and the same was registered as Criminal Case No. 9762 of 2016. The same was tried and ultimately, the opponent and his family members were acquitted of the charges levelled against them. Since then the husband and wife were residing separately. 2.4 In that view of the matter, the husband had filed petition for dissolution of the marriage under Section 13 of the Hindu Marriage Act, 1955 before the Family Court, Mahesana being Family Suit No. 38 of 2021. Since then the husband and wife were residing separately. 2.4 In that view of the matter, the husband had filed petition for dissolution of the marriage under Section 13 of the Hindu Marriage Act, 1955 before the Family Court, Mahesana being Family Suit No. 38 of 2021. The Family Court, after hearing both the parties framed issues at Exh. 17, which read as under:- 1. Whether the petitioner proves that he is legally wedded husband of the opponent? 2. Whether the petitioner proves that after the solemnization of the marriage, the opponent treated petitioner with cruelty is alleged in the petition? 3. Whether the petitioner is entitled to get divorce on the ground of cruelty? 4. Whether the petitioner proves that, the opponent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of this petition? 5. Whether the petitioner is entitled to get relief, as prayed, if yes, what order and decree? 2.5 The Family Court has given answer of four issues in affirmative and so far as fifth issue is concerned, the Family Court has passed the impugned judgment and decree. The Family Court has also referred and relied upon the oral as well documentary evidence produced by the appellant and the opponent side in paragraph No.6 which read as under:- "Petitioner has submitted following documentary as well as oral evidence in his support: Sr. No. Exh./Mark Description of document 1 Exh. 19 Examination-in-chief of petitioner. 2 Exh. 42 Application given at bank by petitioner. 3 Exh. 46 Charge sheet. 4 Exh. 47 Copy of cross-examination in Cr. Case No. 9762/2016. 5 Exh. 48 Closing purshish. 6 Exh. 54 Reply of notice by opponent. 7 Exh. 57 Written arguments. Opponent has submitted following evidence in her support: Sr. No. Exh./Mark Description of document 1 Exh. 41 Copy of List of ornaments. 2 Exh. 27 Notice sent by petitioner to opponent. 3 Exh. 29 Statement of account. 4 Exh. 30 Money transfer details. 5 Exh. 31, 37 Bank statement 6 Exh. 32 Sale Agreement. 7 Exh.34,35,36 Agriculture land detail 8 Exh. 38 Copy of Cr.M.A. No. 642/2016. 9 Exh.49 Affidavit-in-chief of opponent. 10 Exh. 58 Written arguments. 11 Exh. 55 Closing purshish. 3. Heard Mr. Ashish B. Desai, learned Counsel for the appellant and Mr. Shalin Mehta, learned Senior Counsel assisted by Mr. Rajpurohit R. Bhawarlal, learned Counsel for the respondent-opponent. 32 Sale Agreement. 7 Exh.34,35,36 Agriculture land detail 8 Exh. 38 Copy of Cr.M.A. No. 642/2016. 9 Exh.49 Affidavit-in-chief of opponent. 10 Exh. 58 Written arguments. 11 Exh. 55 Closing purshish. 3. Heard Mr. Ashish B. Desai, learned Counsel for the appellant and Mr. Shalin Mehta, learned Senior Counsel assisted by Mr. Rajpurohit R. Bhawarlal, learned Counsel for the respondent-opponent. 4. Mr. Ashish B. Desai, learned Counsel for the appellant wife has made the following submissions: 4.1 He would submit that the impugned judgment and decree is perverse, against the settled legal position and the same is nothing else but misinterpretation of facts and law and therefore, the same may be quashed and set aside. 4.2 He would submit that the learned Family Court has failed to appreciate that in a marriage there is corresponding duty upon both the partners to make efforts to stop the irretrievable breakdown of marriage. 4.3 He would submit that the order passed by the learned Family Court is bad in eyes of law, as the learned Family Court had assumed that the legal remedy as exhausted by the appellant in the present case in pursuing the case under Section 498A of the IPC and Dowry Prohibition Act was amounting to cruelty against the present opponent. 4.4 He would submit that the matrimonial home of the married couple was in Mahesana and it was the opponent who had moved out of the matrimonial home to Jotana. 4.5 He would submit that the opponent husband had made no efforts to reside with the appellant and the same duty cannot be attributed to the appellant to stay with the opponent. 4.6 He would further submit that the order passed by the learned Family Court is bad in eyes of law, as the learned Family Court has failed to appreciate that in the case of cruelty, as ground for divorce, it is the duty of the petitioner to prove that the cruelty was meted out beyond reasonable doubt and in present case, the learned Family Court has overlooked the same principle while granting the reliefs as prayed for by the opponent. 4.7 In view of the above, Mr. 4.7 In view of the above, Mr. Ashish B. Desai, learned Counsel for the appellant urges before the Court that the impugned judgment and decree dated 13.10.2022 passed by the learned Family Court in Family Suit No. 38 of 2021 may be quashed and set aside and present First Appeal may be allowed. 5. On the other hand, Mr. Shalin Mehta, learned Senior Counsel for Mr. Rajpurohit R. Bhawarlal learned Counsel for the respondent husband would make the following submissions: 5.1 He would submit that the opponent has proved the case before the Family Court by producing cogent and relevant material evidence. He would submit that the matrimonial harmony was broken and the marriage relationship between the appellant and the opponent was completely under irreversible situation. He would submit that in that view of the matter and after considering the facts and circumstances of the case and after evaluating the evidence led by both the sides and after considering the judgment of the Hon'ble Apex Court, the Family Court has rightly passed the impugned judgment and decree of dissolution of marriage. 5.2 He would submit that learned Family Court has taken into account all the relevant aspects and the material placed on record before it and after considering the fact that there was no chance of any settlement between the parties, ultimately, learned Family Court has passed impugned judgment and decree dissolving the marriage between the parties. 5.3 He would submit that this Court may not disturb the judgment and decree of the learned Family Court and no interference is required to be made in the impugned judgment and decree passed by the learned Family Court, hence present appeal may be dismissed. 6. We have heard submissions made by the learned counsels for the respective parties and perused the relevant documents and material placed on record as well as the impugned judgment and decree passed by learned Family Court. 7. It appears that issues involved in present Appeal are as follows: (i) Whether the Family Court was right and justified in passing the impugned judgment and decree of dissolution of marriage? (ii) Whether the appellant proves that the cruelty meted out by the appellant was one of the grounds while passing the order of dissolution of marriage by the Family Court? (ii) Whether the appellant proves that the cruelty meted out by the appellant was one of the grounds while passing the order of dissolution of marriage by the Family Court? (iii) Whether the learned Family Court has rightly considered the factum of lodging of the criminal complaint against the opponent and family members? 8. So far as above issues are concerned, it is an admitted fact that the marriage relationship between the husband and wife is absolutely irretrievable between the husband and wife. Further, the wife had lodged a criminal prosecution against the family members of the opponent, who were not residing with them and for that they underwent mental agony for almost five years. 9. In fact, the property was purchased and owned jointly by opponent and the appellant, which is now in possession of present appellant. From initial days i.e. from 2010 to 2016, the husband was paying the installment of home loan obtained from the I.C.I.C.I. bank and after 2016, when the husband left the house, the wife was paying the instalment towards the housing loan, which was accepted in their evidence and which is an admitted fact. Even, in criminal case, the parents of the appellant have deposed before the Court and were unable to prove the charge against the opponent and his family members. Therefore, the Court has acquitted the accused from the charge under Section 498A of I.P.C.. Even, the fact that the opponent and his family members have demanded Rs.7 Lakhs from the appellant and his family members was not proved by any cogent and valid evidence. Further, more than 5 years the appellant wife had deserted the husband and was residing separately at Mehesana. Even, the opponent husband has tried to settle the dispute for the purpose of welfare of their minor daughters and asked the appellant to reside at Ahmedabad with the opponent which she denied and her adamant attitude has given rise to filing of divorce petition. 10. From the deposition of both the sides, it appears that for almost last 9 years, the husband and wife have been residing separately and there is no possibility to reconcile the marriage relationship. 11. 10. From the deposition of both the sides, it appears that for almost last 9 years, the husband and wife have been residing separately and there is no possibility to reconcile the marriage relationship. 11. This Court has also tried to resolve the dispute between the husband and wife and sent the matter for conciliation and mediation but the mediation was unsuccessful and therefore, the matter was heard on merits and after considering the facts and circumstances of the case and after hearing the parties, we are of the opinion that the Family Court has rightly passed the impugned judgment and decree of dissolution of marriage between the appellant and the opponent. We are in complete agreement with the findings recorded by the Family Court, more particularly paragraph No.30 onward. 12. At this stage, it is also relevant to take into account the observations made by the Hon'ble Apex Court in case of Rani Narasimha Sastri vs. Rani Suneela Rani, (2020) 18 SCC 247 , wherein the Hon'ble Apex Court has considered the fact that cruelty is a sufficient ground for divorce and thus has observed that:- "13. In the present case, the prosecution is launched by the respondent against the appellant under Section 498- A IPC making serious allegations in which the appellant had to undergo trial which ultimately resulted in his acquittal. In the prosecution under Section 498-A IPC not only acquittal has been recorded but observations have been made that allegations of serious nature are levelled against each other. The case set up by the appellant seeking decree of divorce on the ground of cruelty has been established. With regard to proceeding initiated by the respondent under Section 498-A IPC, the High Court made the following observation in para 15: (Rani Narsimha Sastry case, SCC OnLine Hyd) "15. ... Merely because the respondent has sought for maintenance or has filed a complaint against the petitioner for the offence punishable under Section 498-A IPC, they cannot be said to be valid grounds for holding that such a recourse adopted by the respondent amounts to cruelty." The above observation of the High Court cannot be approved. ... Merely because the respondent has sought for maintenance or has filed a complaint against the petitioner for the offence punishable under Section 498-A IPC, they cannot be said to be valid grounds for holding that such a recourse adopted by the respondent amounts to cruelty." The above observation of the High Court cannot be approved. It is true that it is open for anyone to file complaint or lodge prosecution for redressal of his or her grievances and lodge a first information report for an offence also and mere lodging of complaint or FIR cannot ipso facto be treated as cruelty. But when a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498-A IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has been meted out on the husband. As per the pleadings before us, after parties having been married on 14-8-2005 they lived together only 18 months and, thereafter, they are separately living for more than a decade now." 13. The family Court has not committed any error while passing the impugned judgment and decree of dissolution of marriage. It is also evident from the oral evidence led by the both the sides that the family members have also tried to settle the dispute between husband and wife but it seems that it was in vain. Even, before this Court also the matter was initially sent for mediation and conciliation however, due to the adamant attitude of the appellant, the matter was not resolved before the Mediation Centre and since 2016, the relation between the two families has completely soured. 14. Considering the aforesaid aspect, learned Family Court has rightly passed the judgment and decree, whereby the marriage was dissolved between the appellant and the opponent. There was no infirmity or any irregularity committed by the Family Court in passing the judgment and decree in favour of present opponent. 15. Even, the law commission has also recommended that the law relating to the divorce is required to be amended in view of the recent scenario of the society, where irretrievable breakdown of marriage is an additional ground of divorce mentioned in a provision of Section 13 of the Hindu Marriage Act. 15. Even, the law commission has also recommended that the law relating to the divorce is required to be amended in view of the recent scenario of the society, where irretrievable breakdown of marriage is an additional ground of divorce mentioned in a provision of Section 13 of the Hindu Marriage Act. Of course, the recommendation of law commission is not implemented yet, however, considering the present scenario of the society, the fabric of the relation between husband and wife, more particularly, the marriage relationship between the husband and wife is found to be broken for a very petty reason. 16. In the decision of the Hon'ble Apex Court in case of K. Shrinivas vs. K. Sunita, in Civil Appeal No. 1213 of 2006, the Hon'ble Apex Court discussed the judgment of the Hon'ble Apex Court in case of K. Shrinivas Rao vs. D.A. Deepa, 2013 (5) SCC 226 , wherein the Hon'ble Apex Court has considered all earlier judgments and observed that:- "1..... It is now beyond civil that if a false criminal complaint is preferred by either spouse it would invariable and indubitably constitute matrimonial cruelty, such as would entitle the other spouse to claim divorce." 17. After considering the same, Hon'ble Apex Court has observed that filing of a frivolous complaint by wife is sufficient to constitute matrimonial cruelty and on that ground, the Court can certainly pass the decree of divorce. 18. Here in the present case, considering the evidence led by both the sides and on perusal of the same, we have unequivocally come to a conclusion that the Family Court has rightly passed the impugned judgment and decree in favour of the opponent and dissolved the marriage between the appellant and the opponent. Further, the Family Court has also evaluated all the evidence and after considering the submissions of both the sides and after taking into account the facts of the case and the long separation between the husband and wife, has passed the impugned judgment and decree in favour of the husband. Further, the Family Court has also evaluated all the evidence and after considering the submissions of both the sides and after taking into account the facts of the case and the long separation between the husband and wife, has passed the impugned judgment and decree in favour of the husband. In that view of the matter and in view of the decisions of the Hon'ble Apex Court cited hereinabove, and the decision dated 22.11.2024 of this Court passed in First Appeal No.1445 of 2024, we are of the opinion that the order passed by the Family Court does not warrant any interference from this Court and accordingly the same requires to be dismissed. 19. For the reasons assigned aforesaid, present appeal is devoid of any merits and therefore, the same is hereby dismissed. The impugned judgment and decree dated 13.10.2022 passed by the learned Family Court in Family Suit No. 38 of 2021 is hereby confirmed. The connected Civil Application will also not survive and hence the same also stands disposed of accordingly.