Case Note & Summary
The present Second Appeal is filed by the original Petitioner – Husband challenging the judgment and decree passed by the 2nd Ad-hoc Additional District Judge, Akola in Regular Civil Appeal No. 276/2003 dated 01/09/2005. The Husband filed Petition vide H.M.P. No. 88/2001 dated 26/09/2003 for dissolution of marriage by decree of divorce. The learned Civil Judge Senior Division, Akola decreed the said Petition and dissolved the marriage between the Petitioner and the Respondent therein, holding that the Petitioner proved that the Respondent treated him with great cruelty, mental torture and agony. The Respondent – Wife filed Appeal bearing Regular Civil Appeal No. 276/2003 which came to be allowed and the decree of dissolution of marriage came to be set aside by the Appellate Court. The Appellate Court answered the point that the Appellant therein i.e. Chitra actually was treated with cruelty by her husband and in-laws and they made false allegations against her. Another ground for setting aside the judgment and decree of the Lower Court was that there was criminal Proceeding initiated by the Wife under Section 498A of the Indian Penal Code which was pending. The substantial questions of law framed by this Court vide order dated 11/01/2008 were: (A) Whether the first Appellate Court was wrong in holding that there was no cruelty? (B) Whether there has been complete breakdown of the marriage on account of the fact that for the last more than ten years, parties have been residing separately? There is no dispute that the marriage between the Appellant and the Respondent took place on 27/05/1996. After the marriage, the Respondent – Wife started residing at Akola at her matrimonial house. The Court heard learned Counsel for the Appellant; Counsel for the Respondent was absent. The Court found that the first Appellate Court was wrong in holding that there was no cruelty, as the trial court had correctly appreciated evidence. Also, the parties have been residing separately for more than ten years, indicating complete breakdown of marriage. The Court allowed the appeal, set aside the judgment of the first Appellate Court, and restored the decree of divorce granted by the trial court.
Headnote
A) Hindu Marriage Act - Cruelty - Section 13(1)(ia) - The first Appellate Court erred in reversing the trial court's finding of cruelty without proper appreciation of evidence - The husband proved mental torture and agony caused by wife during matrimonial stay - Held that the appellate court's conclusion was perverse (Paras 1-3). B) Hindu Marriage Act - Irretrievable Breakdown of Marriage - Section 13 - Parties have been residing separately for more than ten years - Complete breakdown of marriage is evident - Held that marriage has irretrievably broken down and cannot be salvaged (Para 3).
Issue of Consideration
Whether the first Appellate Court was wrong in holding that there was no cruelty, and whether there has been complete breakdown of marriage due to long separation.
Final Decision
The Second Appeal is allowed. The judgment and decree passed by the first Appellate Court in Regular Civil Appeal No. 276/2003 dated 01/09/2005 is set aside. The decree of divorce granted by the trial court in H.M.P. No. 88/2001 dated 26/09/2003 is restored.
Law Points
- Cruelty under Hindu Marriage Act
- 1955
- Irretrievable breakdown of marriage
- Second appeal under Section 100 CPC
- Reappreciation of evidence by first appellate court
