Case Note & Summary
The appellant husband, Yogesh Baburao Patil, and the respondent wife, Sou. Rupali Yogesh Patil, were married on 9 December 2001 at Nashik as per Hindu rites. A male child was born on 31 October 2003. The husband alleged that the wife used to quarrel with him and committed acts of cruelty, and that she deserted him. On 4 August 2003, the husband filed Hindu Marriage Petition No. 149 of 2003 seeking divorce on the grounds of cruelty and desertion under the Hindu Marriage Act, 1955. The wife contested the petition. On 30 April 2004, the wife filed Marriage Petition No. 189 of 2004 seeking restitution of conjugal rights under Section 9 of the Act. The husband opposed that petition. The trial court allowed the wife's restitution petition on 15 December 2006, finding that there was no desertion by the wife. That judgment was not appealed by the husband and became final. Meanwhile, the husband's divorce petition was dismissed by the trial court on 28 March 2007. The husband appealed to the District Court, which dismissed the appeal on 20 January 2012. The husband then filed the present second appeal before the High Court. The High Court framed the substantial question of law as whether the husband proved cruelty and desertion. The court noted that the finding of no desertion in the restitution petition had attained finality and could not be reopened. On cruelty, the court examined the evidence and found that the trial court and first appellate court had correctly appreciated the evidence and that no perversity was shown. The High Court dismissed the second appeal, upholding the concurrent findings of the courts below.
Headnote
A) Hindu Marriage Act - Cruelty - Section 13(1)(ia) - Burden of Proof - The appellant husband alleged mental cruelty by the respondent wife due to quarrels and filing of false cases. The trial court and first appellate court found the allegations not proved. The High Court held that the findings of fact based on appreciation of evidence cannot be interfered with in second appeal unless perverse. No perversity found. (Paras 6-8) B) Hindu Marriage Act - Desertion - Section 13(1)(ib) - Essential Ingredients - The appellant husband alleged desertion by the respondent wife. However, the wife had filed a petition for restitution of conjugal rights under Section 9 which was allowed, and the finding of no desertion by the wife had attained finality. The High Court held that the husband cannot simultaneously allege desertion when the wife sought restitution. (Paras 4, 9) C) Hindu Marriage Act - Restitution of Conjugal Rights - Section 9 - Res Judicata - The trial court in the wife's Section 9 petition found no desertion by the wife. That judgment was not challenged by the husband and became final. The High Court held that the finding of no desertion operates as res judicata in the husband's divorce petition. (Paras 4, 9)
Issue of Consideration
Whether the appellant husband proved cruelty and desertion by the respondent wife to entitle him to a decree of divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955.
Final Decision
Second appeal dismissed. The judgment and order dated 20 January 2012 passed by the District Judge in Regular Civil Appeal No. 148 of 2007 and the judgment and decree dated 28 March 2007 passed by the Civil Judge, Senior Division in Hindu Marriage Petition No. 149 of 2003 are confirmed. No order as to costs.
Law Points
- Cruelty under Hindu Marriage Act
- Desertion under Hindu Marriage Act
- Res Judicata
- Section 9 Hindu Marriage Act
- Section 13(1)(ia) Hindu Marriage Act
- Section 13(1)(ib) Hindu Marriage Act
