1 Judgment in FCA 71-23 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FAMILY COURT APPEAL NO.71 OF 2023 Ketan s/o Baliram Kamble, Age : 41 years, Occu.: Service, R/o.: Central Naka, Municipal Corporation, Quarters, Aurangabad Taluka & District : Aurangabad …. APPELLANT (Original Petitioner) VERSUS Sakshi @ Guddi w/o. Ketan Kamble Age : 36 years, Occu.: Household, R/o.: C/o.: Ramesh Jairam Pagare, Near Majnu Garden, Shatabdi Nagar, Aurangabad, Tq. & Dist. Aurangabad …. RESPONDENT (Original Respondent) …. Mr. Mohit R. Deshmukh, Advocate for the Appellant Mr. Yash S. Pareek, Advocate for the Respondent …. CORAM : NITIN B. SURYAWANSHI AND SANDIPKUMAR C. MORE, JJ. RESERVED ON : 07/07/2025 PRONOUNCED ON : 25/07/2025 JUDGMENT : ( PER : SANDIPKUMAR C. MORE, J.) 1. The present appellant i.e. original petitioner, has challenged the judgment and order dated 17/07/2023 passed by the learned Principal Judge, Family Court, Aurangabd (hereinafter referred to as ‘the learned family court’) in Petition No. A-49 of 2020, whereby 2025:BHC-AUG:19435-DB 2 Judgment in FCA 71-23 his claim for dissolution of marriage with respondent / wife under Section 13(1) (i-a) and (1-b) of Hindu Marriage Act, 1955, has been rejected. 2. Background facts are as under : The appellant - husband and respondent - wife got married on 11/05/2008 at Shatabdi Nagar, Aurangabad as per Buddha rites and customs. The respondent-wife is the only daughter of maternal uncle of the appellant-husband. The appellant-husband is having permanent job in Municipal Corporation and therefore, his maternal uncle decided to marry his daughter i.e. respondent with him. According to the appellant - husband the entire expenses of marriage were borne by him. After marriage, both of them started residing in Municipal quarter, but immediately after eight days respondent - wife started picking up quarrels on flimsy grounds. Though the appellant - husband tried to convince her, but the respondent - wife told him that she was forced to marry him under pressure of her parents and that she did not want to marry him because of his dark complexion. The appellant - husband for about one and half year tried to persuade the respondent - wife for staying with him, but she frequently started going to her parents’ house and staying there. Even the parents of 3 Judgment in FCA 71-23 respondent - wife were also blaming the appellant. Ultimately, the respondent - wife on her own, left the house of the appellant - husband by taking away all her gold ornaments and cash amount of Rs.32,000/-. The appellant had initially filed Petition bearing No. A-420 of 2009 on 21/12/2009 for getting divorce, but it was dismissed on 24/04/2012. Whereas, the respondent - wife had also filed a petition for restitution of conjugal rights bearing No. A-17 of 2010, which was decreed on the same day i.e. 24/04/2012 and the appellant was directed to take the respondent back for cohabitation. It is the contention of the appellant - husband that despite having decree of restitution of conjugal rights, the respondent - wife did not make any attempt for cohabitation. She did not even file any execution proceeding to resume cohabitation. The respondent - wife had also filed one application for claiming maintenance under Section 125 of Cr.P.C. against the appellant - husband bearing No.150 of 2010. In the said petition, the appellant - husband agreed to pay maintenance amount at the rate of Rs.1,000/- per month to the respondent - wife and Rs.500/- per month to their son. The appellant - husband was paying the said maintenance amount to the respondent - wife regularly but on 30/08/2014 the respondent - wife again filed a Criminal 4 Judgment in FCA 71-23 Miscellaneous Application No.52 of 2014 for enhancement of the maintenance under Section 127 of Cr.P.C. Accordingly, the earlier maintenance amount was enhanced to Rs.2,000/- per month for respondent - wife and Rs.1,500/- per month to their son. Not only this but in order to harass the appellant - husband, the respondent - wife again filed a proceeding under P.W.D.V. Act bearing No.202 of 2017 in the month of April, 2017. In the said proceeding also an interim maintenance is granted to her, which is being paid by the appellant - husband. Besides, respondent - wife also filed two false NC complaints bearing No.766 of 2017 and 865 of 2017 under Sections 504 & 506 r.w. with 34 of IPC in order to harass the appellant. Due to such cruel behaviour by the respondent - wife, the appellant - husband suffered from heart-attack and got hospitalized in Sharddha Hospital and Critical Care Centre at Gajanan Mandir Road, Aurangabad. Then he had to undergo Angiography in M.G.M. Medical Centre and Research Institute on 23/05/2016 and thereafter took private treatment in CIIGMA Institute of Medical Science Pvt. Ltd. on 01/08/2026. Thus, it is contended by the appellant - husband that respondent - wife cohabited with him only for three to four months and from April, 2009 till filing of the aforesaid petition, she deserted him without 5 Judgment in FCA 71-23 his fault. Therefore, the appellant - husband sought dissolution of marriage on the ground of cruelty and desertion. On the contrary, the respondent - wife vide her written statement Exhibit-26 strongly resisted the petition. Though she admitted her relations with the petitioner prior to the marriage, but denied the contention that her marriage was performed against her will. She also denied the fact that the entire expenses of the marriage had in fact borne by the appellant - husband. Thus, she has denied all the adverse allegations made against her by the appellant - husband. According to her, even after getting decree of restitution of conjugal rights and despite her several requests, the appellant - husband refused to take her for cohabitation and did not pay any heed to the order of the court. The respondent - wife contended that the appellant - husband had in fact caused physical, mental and economic cruelty to her and therefore, she was constrained to file proceeding under the provisions of P.W.D.V. Act. According to her, she was and is always ready to cohabit with the appellant - husband. In her additional written statement, she contended that after marriage, she was treated properly only for initial period of one month and thereafter the appellant - husband started making demand of Rs.1,00,000/- for construction of house. On nonfulfillment of such demand on her part, the appellant - 6 Judgment in FCA 71-23 husband got angry and started beating her. He used to keep her starved and treated her like a maid. He was also taking doubts on her character and to insult her on flimsy grounds. According to her, the appellant - husband was a womanizer and on that count he used to give her threats of killing. Even during her pregnancy, she was not treated properly and ultimately in the month of November, 2008 the appellant - husband drove her out of his house. On the birth of son- Karan on 22/03/2009, the appellant - husband and his family members did not even come to see him. Thus, the respondent - wife prayed for dismissal of the petition by alleging that the appellant - husband had in fact neglected and refused to maintain herself and their son. She also came with allegation that the appellant - husband performed second marriage during subsistence of their marriage and is leading immoral life. Learned family court after conducting the trial and on the basis of evidence adduced by the parties, dismissed the petition. 3. The learned counsel for the appellant - husband vehemently argued that the learned family court did not appreciate the evidence in proper manner and in fact ignored vital admissions given by the respondent - wife. According to him, the learned family court had wrongly concluded that the present petition filed 7 Judgment in FCA 71-23 by the appellant - husband was hit by principle of res judicata. He submitted that the present petition being filed with the allegations of cruelty, cannot be rejected under the aforesaid principle since the cruelty alleged at the hands of the respondent - wife by the petitioner - husband is a continuous cause and the appellant has filed subsequent petition for divorce on fresh cause. He pointed out that since 2009, the parties are residing separately and there is no possibility of reunion of the parties. According to him, filing false and frivolous complaints against the appellant - husband by the respondent - wife is also a mental cruelty and therefore, on the basis of it, the learned family court should have allowed the petition for divorce. He heavily relied on following judgments, wherein the concept of cruelty is discussed. A) Shri Rakesh Raman vs. Smt. Kavita, 2023 AIR (Supreme Court) 2144; B) Vishwanath s/o Sitaram Agrawal vs. Sau. Sarla Vishwanath Agrawal, 2012(5) AIR Bom.R 604; C) Judgment of the Apex Court in case of Rinku Baheti vs. Sandesh Sharda in Transfer Petition (Civil) No.278 of 2023 and D) Judgment of the Apex Court in case of Vikas Kanaujia vs. Sarita in Civil Appeal arising out of SLP (C) No.29464 of 2019. 8 Judgment in FCA 71-23 4. On the contrary, the learned counsel for the respondent - wife strongly supported the impugned judgment and order and contended that the allegations in previous as well as present petitions for divorce filed by the appellant - husband, are similar and in view of the dismissal of earlier petition, the appellant - husband has no case for seeking divorce on the same ground. According to him, the observation in the judgment in petition for restitution of conjugal rights filed by the respondent against the appellant - husband that he had in fact driven her out of the house, remained unchallenged till today. According to him, the appellant - husband has not filed any appeal against the said decree of restitution of conjugal rights. Thus, he claims that it was the appellant - husband who treated the respondent - wife with physical and mental cruelty and therefore, he is not entitled for a decree of divorce as sought. He pointed out that in the petition of restitution of conjugal rights the appellant - husband was directed by the learned family court to take the respondent - wife for cohabitation with him, but said direction is not followed by the appellant - husband till today. With these submissions, he prayed for dismissal of the appeal. 9 Judgment in FCA 71-23 5. Heard rival submissions. Also perused entire documents on record alongwith record and proceedings of the original divorce petition and the impugned judgment. 6. From the material on record, certain undisputed facts are recorded herein below : (a) The marriage of the appellant - husband and the respondent - wife took place on 11/05/2008 and according to the admission of the respondent - wife, she cohabited with the appellant - husband only till February 2009 and thereafter resided separately. (b) That on 21/12/2009 the appellant - husband filed Petition No. A-420 of 2009 before the learned Family Court, Aurangabad against the respondent - wife for dissolution of their marriage. Similarly, the respondent - wife had also filed Petition No. A-17 of 2010 against the appellant - husband for restitution of conjugal rights. (c) That on 24/04/2012, the learned family court disposed both the aforesaid petitions and thereby granted decree of restitution of conjugal rights in favour of the respondent - wife, whereas the petition of the appellant - husband for dissolution of marriage, was rejected. 10 Judgment in FCA 71-23 (d) That the respondent - wife on 24/06/2010 filed Petition No. E-150 of 2010 for grant of maintenance under Section 125 of Cr.P.C., wherein the appellant - husband voluntarily agreed for maintenance of Rs.1,000/- per month to respondent - wife and Rs.500/- per month to their son. Then on 30/08/2014 the respondent - wife by filing M.A. No.52 of 2014 under Section 127 of Cr.P.C. got aforesaid maintenance amount enhanced to Rs.2,000/- per month for herself and Rs.1,500/- per month for their son. (e) That in the year 2016 the appellant - husband suffered from heart decease and treated with Coronary Angiography at MGM Hospital at Aurangabad. (f) That in the year 2017 the respondent - wife filed two non-cognizable cases against the appellant - husband on 27/10/2017 and 14/12/2017 in City Chowk Police Station, Aurangabad and thereafter also filed proceeding under Section PWDV Act for claiming additional maintenance wherein the additional maintenance of Rs.1,000/- per month was ordered to be paid to her alongwith house rent at the rate of Rs.500/- per month. 11 Judgment in FCA 71-23 7. In the backdrop of these aforesaid undisputed facts, the learned counsel for the appellant - husband has submitted that due to desertion of respondent - wife on her own for about 16 years, the marriage between the parties, is irretrievably broken down and the same is also causing mental cruelty to the appellant - husband. Further, he also submitted that due to filing of various cases by the respondent - wife on the basis of false allegations, the appellant also suffered from additional mental cruelty. Learned counsel for the appellant - husband specifically relied on the judgment in the case of Shri Rakesh Raman vs. Smt. Kavita (supra) and pointed out that the Hon’ble Apex Court made the following observation in paragraph 18: “18. We have a married couple before us who have barely stayed together as a couple for four years and who have now been living separately for the last 25 years. There is no child out of the wedlock. The matrimonial bond is completely broken and it beyond repair. We have no doubt that this relationship must end as its continuation is causing cruelty on both the sides. The long separation and absence of cohabitation and the complete breakdown of all meaningful bonds and the existing bitterness between the two, has to be read as cruelty under Section 13(1)(ia) of the 1955 Act. We therefore hold that in a given case, such as the one at hand, where the marital relationship has broken down 12 Judgment in FCA 71-23 irretrievably, where there is a long separation and absence of cohabitation (as in the present case for the last 25 years), with multiple Court cases between the parties; then continuation of such a ‘marriage’ would only mean giving sanction to cruelty which each in inflicting on the other. We are also conscious of the fact that a dissolution of this marriage would affect only the two parties as there is no child out of the wedlock.” The Hon’ble Apex Court thus dissolved the marital relationship between husband and wife by awarding permanent alimony of Rs.30 lakhs. Learned counsel for the appellant - husband, thus, expected same result in the instant case also. 8. Admittedly, record shows that the parties are residing separately since February 2009 i.e. almost for 16 years. However, on going through the aforesaid judgment, it is clearly evident that the Hon’ble Apex Court has dissolved the marriage between the parties in that case by exercising power under Article 142 of the Constitution. This court cannot exercise such power under Article 142 of the Constitution. Therefore, we have to consider the evidence on record and facts of this case to ascertain whether the appellant - husband is entitled for getting decree of divorce on the ground of mental cruelty and desertion as alleged. 13 Judgment in FCA 71-23 9. The learned counsel for the respondent - wife though tried to argue that the learned family court has considered the dismissal of earlier petition for divorce filed by the appellant as bar for filing this petition again on the principle of res judicata. However, we would like to record here that seeking divorce on the ground of cruelty and desertion is continuous cause and therefore, merely because earlier petition for divorce filed by the appellant - husband, was rejected, which was filed on the basis of cruelty, cannot be treated as res judicata. Therefore, whatever allegations made by the appellant - husband which amount to mental cruelty in this petition, has to be dealt afresh on the basis of evidence on record. 10. The Hon’ble Apex Court in the case of Vishwanath Agrawal vs. Sau. Sarla Agrawal (supra), has discussed law enunciated in respect of mental cruelty through its various judgments as mentioned herein below. (i) Section 13(1)(ia) does not define ‘cruelty’ and the same could not be defined. The ‘cruelty’ may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents difficulty. (ii) The expression ‘cruelty’ has an inseparable nexus with human conduct or human behaviour. It is 14 Judgment in FCA 71-23 always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status. (iii) Conception of legal cruelty undergoes changes to the changes and advancement of social concept and standards of living. To establish legal cruelty, it is not necessary that physical violence should be used. (iv) A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to our their economic and social conditions. (v) Each case may be different. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. (vi) Mental Cruelty in Section 13(1)(ia) of Hindu Marriage Act can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. (vii) What is cruelty in one case may not amount to cruelty in the other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, education, family and cultural background, financial position, social 15 Judgment in FCA 71-23 status, customs, traditions, religious belief, human values and their value system. (viii) Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. (ix) Question of mental cruelty has to be considered in the light of norms of marital ties of the particular society to which the parties belong, their social values, status and environment in which they live. In the light of the aforesaid observations, we now discussed allegations made by the parties against each other in respect of cruelty and desertion. 11. So far as allegations of cruelty made by the appellant - husband are concerned, it is alleged by the appellant - husband that the respondent - wife on her own deserted him without any just and reasonable cause. According to him, she gave vital admissions in her cross-examination indicating that there was no illtreatment from him and she deserted him without any fault on his part - husband. The Hon’ble Apex Court in the case of Vishwanath Agrawal vs. Sau. Sarla Agrawal (supra), has observed that in the case of divorce sought on ground of mental cruelty, events of cruelty happening subsequent to the filing of 16 Judgment in FCA 71-23 divorce petition can be taken in to consideration. Here in this case we are considering the vital admissions given by the respondent - wife to ascertain both grounds for divorce alleged by the appellant - husband. Obviously, the respondent - wife while filing written statement in the divorce petition, has denied all the adverse allegations made against her by the appellant - husband. However, in the cross-examination, she has denied the contents of her own affidavit in evidence so far it relates her contention to oppose the desertion on her part. In the very beginning of cross-examination, she has admitted that she was not aware about the contents of her affidavit in evidence. She further stated that she was also knowing what were the contents of her evidence in the earlier proceedings. She had only signed those affidavits in evidence. This definitely indicates that only for the sake of denying the contentions of the appellant - husband in respect of desertion, she falsely made certain statements in her affidavit in evidence. 12. It has come in the cross-examination of the respondent - wife that the contents of her petition filed under PWDV Act to the extent of portion mark ‘A’ of the same, had in fact told by her brother and not by her. She has admitted in clear terms that the appellant - husband had not told her that he performed second marriage. 17 Judgment in FCA 71-23 Further, it was also not told by the appellant - husband to her that on performance of second marriage, he was not not in need of her and he would not pay anything to her. As such, the allegations made by her in her petition under PWDV Act are falsified by her. Thus, it clearly indicates that she has filed the proceeding against the appellant husband under the provisions of PWDV Act on false allegations. Not only this but she has also denied the portion marks ‘C, D & E’ of her own affidavit in evidence in this matter, which are reproduced herein below in vernacular. Portion mark ‘C’ : xjksnji.kkr lq/nk vtZnkj o R;kaP;k dqVqach;kuh eyk d/khgh O;oLFkhr okxfoys ukgh] eyk iksVHkj tsok;yk ukgh] eyk nok[kkU;kr usys ukgh- Portion mark ‘D’ : vtZnkj ;kauh eyk iS’kkph ekx.kh d:u uksOgsacj &2008 e/;s ?kjkckgsj gkdywu fnys- ;kuarj eh ekgsjh vkyh- fn- 16@11@2008 jksth ekb&;k vkbZ o Hkkoklkscr iqUgk vtZnkj ;kaP;k ?kjh ukan.;klkBh xsyh vlrk vtZnkj ;kauh eyk rq eyk Qkjdrh nsmu Vkd] eyk nqljs yXu djk;ps vkgs- Uklrk ,d yk[k :i;s ?ksowu ;s rjp eh rqyk ?kjkr ?ksrks vls Eg.kwu f’kfoxkG d:u] ukanfo.;kl udkj fnyk- Portion mark ‘E’ : ;kuarj eh vusdosGk vtZnkj ;kauk ukano.;kckcr fouarh dsyh] ijarq vtZnkj ;kauh eyk rq tj ;k ?kjkr iSls u vk.krk cGtcjh jkghyh rj eh rqyk ryokjhus dkiqu Vkdhy] ftoar Bso.kkj ukgh vls Eg.kwu ftos ekj.;kph /kedh fnyh- ukbZyktkLro eh ekb&;k ekgsjh vkyh- R;kuarj vusdosGk eh ukrsokbZdk ekQZr vtZnkj ;kauk ukanfo.;kph fouarh dsyh] ijarq vtZnkj ;kauh lrr eyk iS’kkph ekx.kh d:u ukanfo.;kl udkj fnyk- From this, it is clearly understood that whatever allegations made by the respondent - wife against the appellant - husband 18 Judgment in FCA 71-23 mentioning that the appellant and his family members illtreated her and by demanding money drove her out in the month of November 2008, are false. Further, it appears that the allegation of the respondent - wife that the appellant - husband asked her to take divorce for performing second marriage, is also totally false. Further, she herself falsified her contention that the appellant - husband refused her to cohabit with him. Therefore, on the basis of such admission it has been established that the appellant - husband never compelled her to reside separately but she on her own deserted him without any just and reasonable cause. 13. On the aspect of mental cruelty, we have already mentioned the observations of Hon’ble Apex Court in the case of Vishwanath Agrawal vs. Sau. Sarla Agrawal (supra), and as per those observations the mental cruelty as alleged by the appellant - husband has to be ascertained by drawing inference on the facts and circumstances of the case. Moreover, it is also observed by the Hon’ble Apex Court that filing so many proceedings on the basis of false allegations can also be considered as mental cruelty to others. On this background, we would like to point out certain vital admissions given by the respondent - wife in her cross- examination. She has specifically admitted that when her petition 19 Judgment in FCA 71-23 for restitution of conjugal rights was allowed by the learned family court, she did not give any notice to the appellant for taking her back for cohabitation. Admittedly, despite such decree, she did not even file any execution proceeding for the same. Further, she has admitted that she did not file any evidence to show that the appellant - husband is involved in adultery by residing with another lady. Moreover, she further admitted that she stated in her affidavit of evidence that the appellant - husband performed second illegal marriage and living adulterous life with the said lady, as per her whim. Further, it is also admitted by the respondent in the cross-examination that on her own she did not make any effort for cohabitation and further admitted that since she never went to cohabitation, there was no question of threatening and abusing her on the part of the appellant - husband. She even admitted that the appellant - husband never demanded money from her and also there were no talks between himself and her in respect of cohabitation. Lastly, she admitted that there is no possibility of cohabitation between herself and the appellant - husband. According to her, she filed various false complaints in police station only with intent to torture the appellant - husband physically and mentally. She also stated that even after residing separately from the year 2009, she compelled the appellant - husband to attend the 20 Judgment in FCA 71-23 court by filing proceeding for maintenance. The learned family court despite such admissions failed to consider the same. Therefore, in the light of admissions it has been established that the respondent - wife with intention to harass the appellant - husband, filed various proceedings against him on the false allegations. She has even denied the allegations from her previous proceedings against the appellant-husband, under which she secured the decree of restitution of conjugal rights from learned family court. As such, it can safely be inferred in the light of such evidence that without there being any fault on the part of the appellant - husband, the respondent - wife compelled him to suffer from mental cruelty by filing such type of proceedings by making false allegations. Therefore, considering all these aspects, it has been revealed that the appellant - husband is definitely entitled for dissolution of marriage on the basis of desertion and mental cruelty. Therefore, indulgence is definitely required in the impugned judgment since the learned family court did not consider the matter from this angle and unnecessarily given weightage to the earlier proceedings filed by the respondent - wife, which were in fact filed by the respondent - wife on false allegations. 21 Judgment in FCA 71-23 14. Since we have concluded that the appellant - husband is entitled for decree of divorce on the ground of desertion as well as mental cruelty, we deem it appropriate to grant permanent alimony to the respondent-wife. Admittedly, the appellant - husband is paying the maintenance amount to the respondent - wife as ordered by the learned family court and the concerned Magistrate in the earlier proceedings. The son of the appellant and respondent is also getting maintenance. However, he is having his own right as per the provisions of law. Since we are deciding the dispute between husband and wife, it is to be seen that proper quantum of permanent alimony is to be awarded to the respondent - wife. It has already come on record that the appellant - husband is getting salary around Rs.60,000/- to 70,000/- per month. Moreover, the appellant – husband is also a permanent employee of the concerned Municipal Corporation. It is now settled that the wife has also right to live with same status as that of husband. Under such circumstances, permanent alimony to the tune of Rs.10,00,000/- (Rs. Ten lakh) would enable the respondent – wife to live with dignity. 15. Thus, in the light of aforesaid discussion, we pass following order. 22 Judgment in FCA 71-23 ORDER I) The appeal is hereby allowed and the impugned judgment and order dated 17/07/2023 passed by the learned Principal Judge, Family Court, Aurangabad in Petition No. A-49 of 2020 is hereby quashed and set aside. II) The marriage between the appellant – husband and the respondent – wife solemnized on 11/05/2008 stands dissolved from the date of this order. III) The appellant – husband shall pay an amount of Rs.10,00,000/- (Rs. Ten lakh) towards the permanent alimony to the respondent – wife, within a period of three months from the date of this order. Needless to state that on depositing the amount of aforesaid permanent alimony, the maintenance amount which the respondent-wife is getting at present in other proceedings, shall stand cancelled. However, the respondent – wife shall be entitled for the arrears of such maintenance till the date of payment of aforesaid permanent alimony. IV) Decree be drawn up accordingly and the appeal stands disposed of. (SANDIPKUMAR C. MORE, J.) (NITIN B. SURYAWANSHI, J.) VS Maind/-