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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.12 OF 2002
Monindarpalsinha N. Kochar, )
age 50 years, Occupation - Service, )
R/o.4/15, Anand Housing Society, )
Shankar Seth Road, Pune 37. ).. Appellant
Versus
Jyotindar Kaur Mohindarpal N.Kochar, )
age 42, Occ: Business, )
R/o.Kalyan Sing Sahani, )
RB 11/1 Salunkhe Vihar, )
Kondhwa, Pune 38. ).. Respondent
--
Ms Neeta Karnik for the appellant.
Shri D.P.Guchiya for the respondent.
--
CORAM : R.M.S.KHANDEPARKAR &
ANOOP V. MOHTA, JJ.
DATED : 20TH JUNE, 2005.
JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J )
1. Heard. This appeal arises from the judgment
dated 26th November, 2000 passed by the Family Court,
Pune, in Divorce Petition No.926 of 1995 filed by the
appellant-husband against the respondent-wife. By the
impugned judgment, the petition for divorce was
dismissed while granting permanent alimony to the
respondent at the rate of Rs.1,000/- per month. The
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divorce was sought on the ground of desertion and
cruelty comprised under Section 13(1)(ia)(ib) of the
Hindu Marriage Act, 1955.
2. The marriage between the appellant and the
respondent took place on 29th August, 1993. The
respondent went to her parent’s house on 24th
December, 1993. On 22nd September, 1994, the
respondent-wife filed petition for judicial separation
being Petition No.656 of 1994. The respondent lodged
complaint against the appellant and his parents under
Section 498A of I.P.C., wherein, the appellant and his
parents were arrested and prosecuted under the said
provision of law in the Criminal Case No.356 of 1994.
The fact regarding the complaint and arrest of the
appellant and his parents was published in the
newspapers - "Aaj Ka Anand" and "Sakal" on 27th
September, 1994. The petition for judicial separation
No.656 of 1994 came to be dismissed by the Family
Court, Pune, by its Order dated 28th July, 1995. The
appellant filed the petition for divorce being
Petition No.926 of 1995 on 28th December, 1995 on the
grounds stated above. After recording the evidence,
the petition for divorce filed by the appellant came
to be dismissed by the impugned judgment dated 26th
November, 2000. The present appeal was filed on 2nd
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February, 2001. During the pendency of this appeal,
on 23rd December, 2002, the learned Magistrate
disposed of the Criminal Case No.356 of 1994 and
acquitted the parents of the appellant and convicted
the appellant under Section 498A of the I.P.C. The
matter carried in appeal by the appellant being
Criminal Appeal No.29 of 2003, which came to be filed
on 20th January, 2003, and the same was disposed of on
7th May, 2004 thereby acquitting the appellant.
Meanwhile, the respondent had also filed the petition
for maintenance of Rs.10,000/- per month and Rs.8
lakhs for purchasing a house, besides the petition for
Stridhan being Petition No.7 of 2002, and they are
stated to be pending before the Family Court, Pune.
3. It is the contention of the appellant that the
respondent deserted the appellant and left the
matrimonial house since 24th December, 1993 and
proceeded to her parent’s house and she never returned
to stay with the appellant. It is his further
contention that the fact about desertion from 24th
December, 1993 has been clearly admitted by the
respondent in her testimony before the family Court in
the proceedings for judicial separation filed by her
and further the said fact has been confirmed in the
judgment of the family Court while dismissing her
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petition for judicial separation. It is his further
contention that the family Court while dismissing the
said petition for judicial separation has also arrived
at the finding that the respondent is living
separately from her husband without any justification
and she had left the matrimonial house without any
reasonable cause. It is his further case that the
intention on the part of the respondent to desert the
matrimonial house and the company of the appellant
from 24th December, 1993 was clear at the time when
she left the matrimonial house on the same day. The
same was confirmed from the fact of filing of the
proceedings for judicial separation as well as
criminal complaint under Section 498A of I.P.C.,
coupled with the fact that the respondent exhibited
adamant and uncooperative attitude in refusing to come
back to reside with the appellant inspite of various
attempts on the part of the appellant for
reconciliation and to bring her to the house of the
appellant. It is the further case of the appellant
that during the time she stayed with the appellant,
she always misbehaved and harassed the appellant and
his family members and was insisting for a residential
house separate from that of the parents of the
appellant. According to the appellant, his parents
are ill and need constant medical care, apart from the
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fact that the appellant himself is a disabled person.
4. On the other hand, it is the case of the
respondent that right from the day one she joined the
appellant after the marriage, she was being illtreated
and there was constant demand for Rs.1,00,000/- from
the parents of the respondent to enable the appellant
to purchase a car, and on account of refusal on the
part of the respondent to pay the said amount to the
appellant, the respondent was being harassed by one
way or the other by the appellant and his parents. It
is her further case that on 24th December, 1993 she
was forced to leave the matrimonial house, and
therefore, she had to proceed to live with her parents
against her desire. It is the further case of the
respondent that her attempt to stay with the appellant
after the dismissal of the petition for judicial
separation also proved futile on account of
uncooperative attitude on the part of the appellant.
It is her further case that considering the income of
the appellant, the respondent is entitled for
permanent alimony, and therefore, no fault can be
found with the impugned judgment granting permanent
alimony and dismissing the petition for divorce.
5. The family Court, Pune, after considering the
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evidence on record, has held that the appellant had
failed to establish that the respondent had treated
the appellant with cruelty within the meaning of the
said expression under Section 13(1)(ia) of the Hindu
Marriage Act, 1955 as also failed to prove that the
respondent had deserted him for the period not less
than two years immediately preceding presentation of
the petition without just reason or proper cause, as
contemplated under Section 13(1)(ib) of the said Act,
and therefore, there was no case for grant decree of
of divorce, however, simultaneously granted permanent
alimony of Rs.1,000/- per month to the respondent.
6. While assailing the impugned judgment as far
as it dismisses the petition for divorce is concerned,
the learned Advocate appearing for the appellant
submitted that the fact that the respondent left the
matrimonial house on 24th December, 1993 having been
established by a clear finding of the family Court to
that effect in the proceedings for judicial separation
filed by the respondent herself and further the fact
that the respondent had filed the proceedings for
judicial separation, complaint under Section 498A of
I.P.C. against the appellant and his parents and got
them arrested and prosecuted, got the news about their
arrest published in the newspapers and the fact that
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she refused to come back to stay with the appellant
inspite of various efforts on the part of the
appellant in that regard, obviously establish
desertion for a period of more than two years prior to
the filing of the petition for divorce by the
appellant and the Court below having totally failed to
consider the same while rejecting the divorce petition
had acted arbitrarily, rendering its judgment to be
bad in law. The respondent has not shown any cause
for leaving the matrimonial house on 24th December,
1993 as well as for not returning to reside with the
appellant and the allegations regarding ill-treatment
during the period she had stayed with the appellant as
well as the alleged ground for leaving the matrimonial
house from 24th December, 1993 have not been proved by
the respondent. The intention on the part of the
respondent not to return to reside with the appellant
was clear on the day she left the matrimonial house
and the same was confirmed from the fact of filing the
petition for judicial separation, and further the fact
that there was no reasonal cause for leaving
matrimonial house on 24th December, 1993 and further
confirmed with the clear finding in that regard by the
family Court in its judgment while dismissing the
proceedings for judicial separation and since there
was no appeal against the said judgment, it had
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attained finality for all purposes. The appellant
having clearly established with cogent evidence about
the factum of desertion of the matrimonial house by
the respondent from 24th December, 1993, he has a
clear case for divorce under Section 13(1)(ia) of the
Hindu Marriage Act, 1955. As regards the ground of
cruelty, the learned Advocate for the appellant
submitted that apart from the fact of filing of the
false complaint, which has been abundantly established
by the fact of dismissal of the complaint and
acquittal of the appellant as well as his parents,
there was humiliation to the appellant on account of
arrest and detention in the police custody and
publication of the news in that regard in the
newspapers, and that was all on account of a false
complaint by the respondent which clearly disclosed
mental cruelty to the appellant warranting dissolution
of the marriage, as contemplated under Section
13(1)(ib) of the Hindu Marriage Act, 1955. It is
further submitted that refusal to participate in the
Chulah ceremony, which is a prestigious ceremony
consequent to the marriage in the community of the
appellant, a strange conduct on the part of the
respondent, harassment caused by her to the appellant
and his parents, abruptly leaving the matrimonial
house without any justifiable cause and refusal to
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return to reside with the appellant, disclose cruelty
on the part of the respondent to the appellant, and
therefore, the Court below ought to have decreed the
suit for divorce on the said ground also. The learned
Advocate for the appellant further submitted that the
evidence placed on record as regards the income of the
appellant, financial obligations and the expenses
incurred by the appellant on account of ill-health of
his parents as well as for his own medical expenditure
clearly reveal that there was no justification for
grant of permanent alimony in favour of the
respondent, and certainly not to the extent of
Rs.1,000/- per month.
7. Reliance is sought to be placed in the
decisions in the matter of Adhyatma Bhattar Alwar v.
Adhyatma Bhattar Sri Devi, reported in (2002)1 SCC
308, of Sadhana Satish Kolvankar v. Satish
Sachidanand Kolvankar, reported in 2005(2)
Bom.C.R.340, G.V.N.Kameswara Rao v. G.Jabilli,
reported in (2002)2 SCC 296, Smt.Kalpana Srivastava v.
Surendra Nath Srivastava, reported in AIR 1985
Allahabad 253, and Rajkishore Prasad v. Smt. Raj
Kumari Devi & Ors., reported in AIR 1986 Patna 362.
8. The learned Advocate appearing for the
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respondent, on the other hand, has submitted that
there has been absolutely no evidence led by the
appellant that the respondent had left the matrimonial
house of her own and, on the contrary, the testimony
of the respondent discloses that the respondent had
not left the matrimonial house of her own but rather
she was forced to leave the matrimonial house and was
not taken inside the house after having driven her out
of the house. That apart, even after the dismissal of
the petition for judicial separation, she had made
honest effort to go back to reside with the appellant
but due to the adamant and uncooperative attitude on
the part of the appellant, she was prohibited from
residing in her matrimonial house. The learned
Advocate for the respondent further submitted that
there was absolutely no evidence on the point of
desertion of the matrimonial house by the respondent
and certainly not even after the dismissal of the
petition for judicial separation, and therefore, no
case was made out by the appellant for grant of
divorce on the same ground. As regards the cruelty is
concerned, the learned Advocate for the respondent
submitted that there being absolutely no evidence led
by the appellant, no fault can be found with the
dismissal of the petition for divorce on the said
ground. As regards the Chulah ceremony is concerned,
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apart from mere allegation in that regard, no evidence
has been led so also in relation to the alleged
conduct of harassment by the respondent. It is a mere
word against word and there is no evidence led by the
appellant though the burden was purely on him. He has
further submitted that the impugned order was passed
on 26th November, 2000 when the criminal case filed
under Section 498A of the I.P.C. was not at all
disposed of, and therefore, there was no occasion for
the family Court to arrive at a conclusion that the
complaint was false. Being so, for not giving any
credence to the contention on the part of the
appellant about the complaint being false, no fault
can be found with the impugned judgment. The decision
regarding acquittal of the appellant and his parents
from the said complaint being not forming part of the
evidence on record before the family Court, it would
not be appropriate to interfere in the impugned
judgment on the ground of such acquittal subsequent to
the passing of the impugned judgment. Considering the
monthly income of Rs.10,000/- of the appellant,
according to the learned Advocate for the respondent,
no fault can be found with the direction for permanent
alimony of Rs.1,000/- per month issued by the family
Court. Merely because some sundry expenses had to be
incurred for the treatment of the parents of the
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appellant, that would not be a justification to deny
permanent alimony to the respondent.
9. Considering the rival contentions of the
learned Advocates on behalf of both the parties, and
on perusal of the records, the following points arise
for our determination:-
1. Whether the appellant has established
that the respondent had deserted the
matrimonial house and the appellant
over a period of two years prior to
the filing of the petition without any
justifiable reason or proper cause,
and therefore, warrants decree of
divorce under Section 13(1)(ia) and
(ib) of the Hindu Marriage Act, 1955?
2. Whether the appellant has established
cruelty by the respondent to the
appellant within the meaning of the
said expression under Section
13(1)(ia) of the Hindu Marriage Act,
1955, and therefore, warrants
dissolution of the marriage by divorce
under the said provisions of law ?
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3. Whether the materials on record
justify the grant of permanent alimony
in favour of the respondent to the
extent of Rs.1,000/- per month ?
10. Perusal of the materials on record reveals
that the conduct of the respondent consistently
discloses that she was never interested in returning
to the matrimonial house after she had left the same
on 23rd December, 1993. The finding arrived at by the
Family Court regarding attempt on the part of the
respondent to prevent the marriage being broken up is
not only contrary to the materials on record but it is
totally perverse. It discloses total misreading of
the evidence on record. The finding regarding
harassment to the respondent by the appellant is also
not based on any material on record. Before arriving
at any such finding, the Family Court has not taken
pains to refer to any incident of harassment to the
respondent. The Family Court also erred in totally
ignoring the clear admission on the part of the
respondent that she had never gone to the matrimonial
house after December, 1994. There was a clear
statement to that effect in the proceedings for
judicial separation and the same was confirmed in the
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present proceedings. In fact, the Family Court does
not appear to have understood the concept of cruelty
at all. The issue regarding cruelty has been answered
in the negative holding that the appellant has not
proved any act on the part of the respondent amounting
to cruelty. In fact, the cruelty pleaded and
established is not a physical cruelty but it relates
to the conduct of the respondent which amounted to
mental torture to the appellant.
11. As regards the point of desertion is
concerned, undisputedly, the respondent proceeded to
her parent’s house from the matrimonial house on 24th
December, 1993 and thereafter, she did not return to
reside with the appellant. Besides, while she
continued to reside with her parents, she filed
petition for judicial separation being Petition No.656
of 1994 on 22nd September, 1994. The said petition
was followed by the criminal complaint dated 25th
September, 1994 against the appellant and his parents
i.e. in-laws of the respondent. It is undisputed
fact that consequent to the said complaint under
Section 498A of I.P.C., the appellant was arrested.
It was only after the dismissal of the said petition
for judicial separation i.e. on 28th July, 1995, that
the respondent claimed to have approached the
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appellant for settlement.
12. As regards the claim of settlement is
concerned, there is not even a statement that she of
her own went to her matrimonial house on 29th July,
1995. On the contrary, a categorical statement in her
testimony is that she was brought to her matrimonial
house by her brother. It is, however, pertinent to
note that neither the brother nor any other witness
was examined in support of the said contention.
Undisputedly, the allegation in that regard has been
denied by the appellant. Added to this, there were
categorical admissions on the part of the respondent
to the effect that "Since 1996 December myself and
opponent had not resided together at any time", and
further that "I have not given any offer to the
Petitioner that I wanted to reside with me." In
addition, she has also stated that "it is true that I
am ready for decree of divorce if all my golden
ornaments and articles are given to me by the
Petitioner and the expenses incurred by me in respect
of maintenance and marriage expenses."
13. It is well settled principle of law that the
point regarding desertion is to be decided on the
basis of the inference to be drawn from the facts
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brought on record. Neither brother of the respondent
nor any other person has been examined in order to
establish the claim regarding attempt on the part of
the respondent for reconciliation after disposal of
the petition for judicial separation. That apart, the
very fact that the respondent after having left the
matrimonial house on 24th December, 1993 did not
return to the said house till the filing of the
petition for judicial separation or any time
thereafter, and further filing of the petition for
judicial separation discloses her clear intention to
desert the appellant and the matrimonial house right
from the time when she left the matrimonial house,
i.e. on 24th December, 1993. This inference from the
evidence on record is inevitable in view of above
referred facts which also finds support from the
further acts on the part of the respondent whereby
after filing of the petition for judicial separation,
the respondent also filed a criminal complaint under
Section 498A of I.P.C., consequent to which the
appellant was arrested. It is also undisputed fact
that the said complaint was ultimately dismissed and
the appellant was acquitted by the learned Magistrate.
This being an appeal, which is a continuation of the
original proceedings, relevant facts which have
occurred subsequent to the disposal of the proceedings
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before the Lower Court cannot be ignored and merely
because the order of acquittal has been delivered
after the disposal of the proceedings before the Lower
Court, the benefit thereof cannot be denied to the
appellant. In the facts and circumstances of the
case, therefore, it is apparent that the criminal
complaint filed against the appellant could not be
established by the appellant. Evidently, the
allegations against the appellant were not established
to be true.
14. The evidence regarding leaving of the
matrimonial house on 24th December, 1993 and filing of
the petition for judicial separation in the month of
September, 1994 followed by the criminal complaint,
which came to be dismissed subsequently, obviously
disclose on one hand desertion of the appellant and
the matrimonial house by the respondent and on the
other hand causing of mental cruelty to the appellant
by the respondent.
15. The Apex Court in Kameswara Rao’s case (supra)
had clearly held that filing of the false police
complaint results in loss of reputation and standing
in society at the instance of one’s spouse, and that
amount to mental cruelty and the traumatic experience
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which the husband had to undergo on account of the
allegations which could not be proved certainly
results in mental cruelty to the husband by the wife.
16. The Supreme Court in V.Bhagat v. D.Bhagat,
[(1994)1 SCC 337] has clearly held that "the mental
cruelty in Section 13(1)(i-a) 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. In
other words, mental cruelty must be of such a nature
that the parties cannot reasonably be expected to live
together. The situation must be such that the wronged
party cannot reasonably be asked to put up with such
conduct and continue to live with the other party. It
is not necessary to prove that the mental cruelty is
such as to cause injury to the health of the
petitioner. While arriving at such conclusion, regard
must be had to the social status, educational level of
the parties, the society they move in, the possibility
or otherwise of the parties ever living together in
case they are already living apart and all other
relevant facts and circumstances which it is neither
possible nor desirable to set out exhaustively. What
is cruelty in one case may not amount to cruelty in
another case. It is a matter to be determined in each
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case having regard to the facts and circumstances of
that case. If it is a case of accusations and
allegations, regard must also be had to the context in
which they were made."
17. The Apex Court in Adhyatma Bhattar Alwar’s
case (supra) has held that :-
""Desertion" in the context of matrimonial law
represents a legal conception. It is
difficult to give a comprehensive definition
of the term. The essential ingredients of
this offence in order that it may furnish a
ground for relief are:
1. the factum of separation;
2. the intention to bring cohabitation
permanently to an end- animus deserendi;
3. the element of permanence which is a
prime condition requires that both these
essential ingredients should continue
during the entire statutory period;
The clause lays down the rule that desertion
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to amount to a matrimonial offence must be for
a continuous period of not less than two years
immediately preceding the presentation of the
petition. This clause has to be read with the
Explanation. The Explanation has widened the
definition of desertion to include "wilful
neglect" of the petitioning spouse by the
respondent. It states that to amount to a
matrimonial offence desertion must be without
reasonable cause and without the consent or
against the wish of the petitioner. From the
Explanation it is abundantly clear that the
legislature intended to give to the expression
a wide import which includes wilful neglect of
the petitioner by the other party to the
marriage. Therefore, for the offence of
desertion, so far as the deserting spouse is
concerned, two essential conditions must be
there, namely, (1) the factum of separation,
and (2) the intention to bring cohabitation
permanently to an end (animus deserendi).
Similarly, two elements are essential so far
as the deserted spouse is concerned: (1) the
absence of consent, and (2) absence of conduct
giving reasonable cause to the spouse leaving
the matrimonial home to form the necessary
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intention aforesaid. The petition for divorce
bears the burden of proving those elements in
the two spouses respectively and their
continuance throughout the statutory period."
18. In Smt.Kalpana Srivastava’s case (supra), the
Allahabad High Court had held that cruelty is not
confined to physical cruelty, but includes mental
cruelty. In Rajkishore Prasad’s case (supra), the
Patna High Court had held that wife leaving her
matrimonial home without any reason or without being
driven out and staying separately for two years
clearly justifies decree of divorce.
19. Bearing in mind the law laid down by the Apex
Court, it is apparent from the materials on record in
the case in hand that after leaving the matrimonial
house on 24th December, 1993, there was absolutely no
attempt on the part of the respondent to reconcile
with the appellant or to return to the matrimonial
house. Added to this, in September, 1994, she
proceeded to file proceedings for judicial separation
which obviously disclosed that she was no more
interested in joining the appellant and she wanted to
disassociate herself from the appellant. The
intention as well as action in pursuance of the said
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intention to desert the appellant and the matrimonial
house was therefore very clear from the conduct of the
respondent revealed from the day of leaving the
matrimonial house i.e. on 24th December, 1993. None
of the allegations in the criminal complaint against
the appellant and his parents could be established by
the respondent and they were acquitted. The parties
to the proceedings are educated persons. The filing
of the criminal complaint subsequent to the petition
for judicial separation obviously disclosed further
intention on the part of the respondent to pressurise
the appellant to agree for separation, as rightly
contended by the learned Advocate appearing for the
appellant. The conduct of the respondent, therefore,
leaves no room for doubt but to conclude that the same
clearly establishes desertion of the appellant for
more than two years prior to the filing of the
petition for divorce as well as mental cruelty to the
appellant.
20. The evidence on record also discloses the
attitude on the part of the respondent which was of
non-cooperation prior to the day of her leaving
matrimonial house. Having agreed to marry with the
appellant and to reside with him in his house, it was
obvious for the appellant to expect the respondent to
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follow certain traditions and customs which are
followed consequent to the marriage in the family of
the appellant but the respondent having refused to
participate and cooperate in performing such
traditions and customs, it obviously disclosed not
only un-cooperative and adamant attitude on the part
of the respondent but also caused dissatisfaction to
the appellant and thereby being responsible for
creating unhappy situation and in the process, if the
displeasure was expressed by the appellant, he could
not have been blamed. Being so, some minor incidents
of quarrels which might have taken place prior to the
leaving of the matrimonial house, by no stretch of
imagination, could be said to be a sufficient cause
for the wife to leave the matrimonial house, and if
the cause was a creation of the acts on the part of
the respondent herself, she cannot seek to derive any
benefit out of the result of such acts to justify the
factum of leaving of the matrimonial house on 23rd
December, 1993.
21. The learned Single Judge of Punjab and Haryana
High Court in Girdhari Lal v. Santosh Kumari,
reported in (1982)1 D.M.C. 180, had held that filing
of a false complaint would amount to cruelty. The
Division Bench of this Court in Sadhana Satish
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Kolvankar’s case (supra) while rejecting the
contention that filing of the complaint under Section
498A of I.P.C. should not be given much importance as
the said decision had delivered after the disposal of
the petition by the Trial Court and during the
pendency of the appeal, held that "all material which
is logically probative for a prudent mind cannot be
excluded from consideration while arriving at a
decision. There cannot be any allergy to look into
such material, provided it has a reasonable nexus and
credibility. The essence of judicial approach is
objectivity, exclusion of extraneous matters from
consideration and observance of rules of natural
justice. In our view, on these tests, the respondent
cannot be denied the opportunity to rely upon this
order." Indeed, the order of acquittal of the
appellant though has been delivered subsequent to the
decision by the trial Court, the same cannot be
ignored, as already held above, as the same obviously
relevant while dealing with the allegation of cruelty
and defence sought to be raised in that regard by the
respondent.
22. For the reasons stated above, therefore, it
cannot be said that the appellant had failed to
discharge his burden to establish the ingredients of
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the grounds for desertion and cruelty for the purpose
of divorce.. The point Nos.1 and 2 framed above are
therefore answered in affirmative.
23. As far as granting alimony is concerned,
taking into consideration the amount of alimony being
Rs.1,000/-, no doubt, finds it to be either
unreasonable or exhorbitant and hence no interference
is called for, in that regard. The point No.3 is
therefore answered in negative.
24. For the reasons stated above, therefore, the
Appeal partly succeeds. The impugned judgment of
dismissal of petition for divorce is hereby quashed
and set aside. The petition filed by the appellant
for dissolution of the marriage on the ground of
desertion and cruelty is to be allowed and accordingly
is hereby allowed. The order of grant of permanent
alimony of Rs.1,000/- to the respondent is, however,
not interfered with. There shall be no order as to
costs.
( Anoop V.Mohta, J ) ( R.M.S.Khandeparkar, J )
