Full Judgment Text
2026:BHC-NAG:2348
S. A. No.6 of 2014 JUDG..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.06 OF 2014
APPELLANTS :- 1. Sau. Vandana Wd/o Nilesh Bhagat,
aged 38 years, Occ. Household,
2. Poonam D/o Nilesh Bhagat, aged 16
years, Occ. NIL,
3. Shubham S/o Nilesh Bhagat,
aged 14 years, Occ. NIL,
4. Aniket S/o. Nilesh Bhagat, aged 12
years, Occ.NIL
Appellant No.2 to 4 are since minor,
appearing through Appellant No.1 of
natural guardian,
All R/o Chikhli, Tq. Chikhli, Dist.
Buldhana.
..VERSUS..
:-
1. Sau. Asha Nilesh Bhagat, age 40 years,
RESPONDENTS
Occ. Household, R/o Dongaon, Tq.
Mehkar, Dist. Buldhana.
2. Nilesh Shamrao Bhagat (deceased),
Through Lrs.,
a Sau. Mandakini Devidas Shinde, age
49 years, R/o Isrul, Tq. Deulgaon Raja,
Dist. Buldhana.
S. A. No.6 of 2014 JUDG..odt
2
b Arundhata Dnyandeo Gawande, age 46
years, Occ. Agriculturist,
R/o Katha, Tq. Chikhli, Dist. Buldhana.
c Sau. Shila Sanjabrao Dukare, age 42
years, Occ. Agriculturist, R/o KUpgaon,
Tq. Chikhali, Dist. Buldhana.
d Sau. Manorama Sukhdeo Amle, age 38
years, Occ. Agriculturist, R/o. Warud,
Tq. Jafrabad, Dist. Jalna.
e Sau. Seema Pradeep Pawar, aged 36
years, Occ. Agriculturist, R/o
Malshemba, Tq. Chikhali, Dist.
Buldhana.
------------------------------------------------------------------------------------------------------------------------------------
Mr. N. A. Padhye, Advocate for Appellant.
Mr. S. S. Deshpande, Advocate for the Respondent No.1.
------------------------------------------------------------------------------------------------------------
CORAM ROHIT W. JOSHI, J.
RESERVED ON 25.11.2025
PRONOUNCED ON 12.02.2026
J U D G M E N T :
1) Heard finally with consent of the learned
Advocates for the respective parties.
2) The present Second Appeal is filed in order to
challenge judgment and decree dated 18.03.2013 passed by
the learned Ad-hoc District Judge-2, Buldhana in Regular
S. A. No.6 of 2014 JUDG..odt
3
Civil Appeal No.45 of 1997. By virtue of the said judgment
and decree the learned First Appellate Court has reversed
judgment and decree dated 06.02.1997 passed by the learned
Civil Judge, Senior Division, Buldhana in Hindu Marriage
Petition No.68 of 1995.
3) The aforesaid marriage petition was filed by late
Nilesh Bhagat, seeking decree for divorce against his wife,
who is the respondent in the present appeal, under Sections
13(1)(ia) and (1)(ib) of the Hindu Marriage Act,1955.
4) The learned Trial Court had granted a decree for
divorce vide judgment and decree dated 06.02.1997. The
said decree came to be reversed by the learned First
Appellate Court vide judgment and decree dated 18.03.2013.
5) The parties will be referred as 'husband' and 'wife'
hereinafter.
6) It will be pertinent to state that the husband has
expired during the pendency of the Regular Civil Appeal. The
appeal was disposed of as abated in view of the demise of the
husband. However, the wife filed application for restoration
and for bringing legal representatives of deceased husband
S. A. No.6 of 2014 JUDG..odt
4
on record. The said application was allowed by the learned
First Appellate Court and respondent No.1 who is mother and
respondent Nos. 2 to 5, who are sisters of the husband, were
arrayed as respondent Nos.1 to 6 in the appeal. Subsequently,
respondent Nos.6 to 9 were also added as parties. It is the
contention of the wife that the husband had solemnized a
second marriage with respondent No.6 and respondent Nos.7
to 9 are his children begotten from the said marriage.
7) The marriage between the parties was solemnized
on 15.05.1991 as per Hindu rites and customs. The couple is
not blessed with any issue. The parties stayed together for a
very short period after the marriage. The allegations of the
husband, as can be seen from the pleadings in the divorce
petition, are that the wife did not observe her household
duties and also did not attend the work in the agricultural
fields, her behavior towards family members and relatives
was improper and she used to insult them intermittently. The
husband has also alleged that the wife used to insist that they
should reside separate from the other family members. It is
also alleged that the wife used to call the husband and his
S. A. No.6 of 2014 JUDG..odt
5
mother as beggars and used to ill-treat them. It is also alleged
that the wife raised a quarrel while Shraddha ritual of the
husband's father was being observed in the year 1992 and
left the house on her own. The husband has specifically
stated that the wife was upset with the fact that the entire
property was owned and possessed by his mother and sisters
and used to insist for transferring the same in his name. It is
stated that notice for restitution was issued by the husband
on 03.08.1993, in response to which the wife issued reply
notice by levelling false allegations and did not come to
reside with the husband. It is also alleged that attempt for
reconciliation through relatives had also failed. Further
allegation is made that on 09.10.1994, the wife, her parents,
sister and brother came to the house of the husband and had
beaten him up. With these allegations, the aforesaid petition
was filed on 06.07.1995.
8) The wife filed her written statement opposing the
divorce petition. She denied all adverse allegation against
her. She alleged that the mother and sister of husband were
subjecting her to mental and physical cruelty. She asserted
S. A. No.6 of 2014 JUDG..odt
6
that she was ready and willing to continue with her marital
relationship. It was alleged that she was forced to leave the
matrimonial house on several occasions and was required to
take shelter at her parental house. The wife also alleged that
efforts of reconciliation at behest of her relatives did not yield
any positive results. She also alleged that the husband had
married with another lady although the marriage between
the parties was subsisting.
9) The wife had initiated proceedings under Section
125 of the Code of Criminal Procedure against the husband
and had also initiated criminal prosecution against him, his
family members and some other individuals for the offence of
bigamy punishable under Section 494 read with Section 109
of the Indian Penal Code.
10) The learned Trial Court gave opportunities to the
parties to reconcile their discord. However, those attempts
also did not bring about any positive result.
11) Based on rival pleadings, the learned Trial Court
framed issues on the point of cruelty and desertion.
12) On appreciation of evidence, the learned Trial Court
S. A. No.6 of 2014 JUDG..odt
7
held that both the grounds for divorce, i.e., cruelty and
desertion without reasonable cause, were established and has
granted a decree for divorce accordingly. The learned Trial
Court has held that the principal allegation of the wife was
that the husband was not willing to cohabit since demand for
motorcycle was not met by her parents. The learned Trial
Court held that the written statement was silent with respect
to demand of motorcycle and, therefore, the oral evidence
with respect to the alleged demand was not admissible. The
learned Trial Court refused to take into consideration the said
oral evidence since it was raised sans pleadings. The learned
Trial Court has referred to evidence of plaintiff’s witnesses
and has observed that in the reconciliation meeting held in
the year 1993, the wife and her relatives has raised quarrel,
as a consequence of which reconciliation talks failed. It is
observed by the learned Trial Court that the evidence of the
husband’s witnesses was more probable and a case was made
out for grant of divorce on the ground of cruelty as also on
the ground of desertion.
13) As stated above, the wife preferred an appeal
S. A. No.6 of 2014 JUDG..odt
8
challenging the said decree for divorce. The learned First
Appellate Court has reversed the decree for divorce by
holding that the husband had filed a petition for divorce only
on the ground of cruelty and not on the ground of desertion.
The learned First Appellate Court has considered the case of
cruelty and has held that the allegations were not proved.
The learned First Appellate Court has referred to the cross-
examination of the wife where questions were put to her with
respect to alleged demand at the time of marriage. Referring
to the said cross-examination, the learned First Appellate
Court has held that the tenor of cross-examination suggested
that there was no demand from the side of husband at the
time of marriage and the marriage was performed happily.
The learned First Appellate Court has also observed that
during the course of cross-examination of wife no suggestion
was given to her that she was short-tempered and
quarrelsome in her behavior with the husband and the family
members and that the veracity of the statements made by her
in the examination-in-chief was also not challenged in the
cross-examination. It is held that deliberately material
S. A. No.6 of 2014 JUDG..odt
9
questions were not put to the wife during her cross-
examination and thereby deprived her to give answers which
would have clarified her position. Thereafter the learned
First Appellate Court dealt with evidence of the witnesses of
the husband and has discarded the same principally on the
grounds that they were interested witnesses and also on the
ground that the evidence was lacking with respect to material
particulars as regards the exact date of the incidents narrated
in the examination-in-chief. The learned First Appellate Court
has also held that the contention with respect to harassment
on account of demand for motorcycle was not disputed in the
cross-examination and was therefore accepted. Likewise, it is
also held that the husband had married respondent No.6. As
regards the allegation with respect to demand of the wife to
get the property of the family transferred in the name of
husband, it is also observed that this conduct was in good
faith. In view of such findings, the appeal came to be allowed
and decree for divorce passed by the learned Trial Court
came to be dismissed.
14) As regards the second marriage, it must be stated
S. A. No.6 of 2014 JUDG..odt
10
that the husband has not denied the fact of marriage with
respondent No.6. It is, however, his contention that the
marriage was solemnized after decree for divorce was
granted by the learned Trial Court. The husband, therefore,
contends that respondent No.6 is his legally wedded wife.
15) In this regard, it must be stated that although the
wife has stated in her written statement that the husband had
married with respondent No.6 while the marriage was
subsisting, she has also stated that she was ready to cohabit
with the husband.
16) The present appeal came to be admitted vide order
dated 27.07.2018 on the following substantial question of
law :-
“Whether the appellate Court was legally
justified in reversing the decree passed by the
trial Court dissolving the marriage between the
parties ?”
17) The finding by the learned First Appellate Court
that the husband had sought divorce only on the ground of
cruelty is contrary to the record. Perusal of pleadings will
S. A. No.6 of 2014 JUDG..odt
11
clearly reveal that apart from cruelty, allegations of desertion
are also made in the petition. It is specifically pleaded that
the wife had left the marital house in Pitrupaksh of the year
1992, a day after Shraddha ritual of husband's father was
observed. The husband has stated that the wife was insisting
for separating from the family in mess and residence and had
left the house since the said demand is not met. There are
pleadings with respect to attempts on the part of the husband
to bring the wife back to her marital house. Pleading is also
made with respect to meeting held on 25.07.1993 for
reconciliation. It is also stated that notice dated 03.08.1993
was issued for restitution, however, the wife issued a false
reply notice dated 11.08.1993 and refused to cohabit. The
learned Trial Court has also framed issue on the point of
desertion. The finding by the learned First Appellate Court
that the petition is not filed on the ground of the desertion is
contrary to the record. It will, therefore, be necessary to
direct the learned First Appellate Court to revisit matter and
deal with the contentions pertaining to desertion.
18) As regards cruelty, the learned First Appellate Court
S. A. No.6 of 2014 JUDG..odt
12
has disbelieved the evidence of the husband, his mother,
maternal uncle and two neighbors on the ground that the
said witnesses are interested witnesses. The evidence is also
disbelieved by stating that material particulars such as date,
time and place of incidents are not narrated by the said
witnesses.
19) While discarding the evidence of witnesses of the
husband, the learned First Appellate Court has accepted the
evidence of wife and her witnesses, which also lacks such
particulars. More importantly, the learned First Appellate
Court has held that the wife had proved her allegation that
she was being harassed by the husband on the ground that
his demand for a motorcycle was not fulfilled by her father.
The learned First Appellate Court completely lost sight of the
fact that the said evidence was clearly beyond the pleadings.
The wife did not plead that she was subjected to cruelty or
harassment on account of the so called demand for
motorcycle. Perusal of reasons recorded by the learned First
Appellate Court indicates that the same yardstick is not
applied to both parties while appreciating the evidence. The
S. A. No.6 of 2014 JUDG..odt
13
findings on the aspect of cruelty are, therefore,
unsustainable.
20) As regards the contention of the wife that the
husband had solemnized a second marriage during
subsistence of his marriage with her, the husband has
admitted the second marriage. However, his contention is
that the marriage was solemnized after decree for divorce
was granted by the learned Trial Court. The wife is not
seeking divorce on the ground of bigamy. This version needs
to be dealt with bearing in mind that the wife has initiated
criminal prosecution against the husband and around 19
people for offence of bigamy. The finding by the learned Trial
Court that stance taken by the wife regarding her willingness
to cohabit is not believable. She had mentioned that she was
ready to cohabit with the husband despite the second
marriage.
21) In this regard, the learned First Appellate Court
should consider that it is the case of husband that the wife
was exerting pressure for transferring the properties standing
in the name of husband’s mother and sisters in his name. The
S. A. No.6 of 2014 JUDG..odt
14
learned First Appellate Court should also consider as to
whether the statement made by wife about readiness to
cohabit with husband is an honest statement or designed
with a view to stake claim over properties of her in-laws,
which she claims to be properties of her husband.
22) Parties were residing separate since the year 1992
shortly after the marriage. All attempts of amicable
settlement have failed. The husband expired on 23.12.2004.
The learned First Appellate Court may also take into
consideration as to whether long separation with no attempt
of reconciliation and coupled with refusal to separate
formally will amount to cruelty or not, in the light of
decisions of the Hon’ble Supreme Court in the case of Samar
Ghosh Vs. Jaya Ghosh, reported in (2007) 4 SCC 511 and
Rakesh Raman Vs. Kavita, reported in (2023) 17 SCC 433.
23) In the light of reasons recorded, the substantial
question of law is answered in favour of the appellants and
against respondent No.1.
24) Judgment and decree dated 18.03.2013 passed by
the learned Ad-hoc District Judge-2, Buldhana in Regular
S. A. No.6 of 2014 JUDG..odt
15
Civil Appeal No.45 of 1997 is quashed and set aside.
25) Regular Civil Appeal No.45 of 1997 is remitted to
the learned First Appellate Court for deciding the same afresh
in accordance with law.
CIVIL APPLICATION (S) NO. 958 OF 2024
26) This is an application seeking permission to lead
additional evidence with respect to birth certificates dated
24.01.2005 of Pooja Nilesh Bhagat and Aniket Nilesh Bhagat,
issued by the Secretary, Grampanchayat Katoda. Since the
appeal is partly allowed remanding Regular Civil Appeal
No.45 of 1997 for fresh adjudication, liberty is granted to
respondent No.1/applicant to file appropriate application in
the said appeal. The Civil Application is disposed of.
27) All other pending Civil Applications are disposed of.
Parties to bear their own costs.
(ROHIT W. JOSHI, J.)
Tanmay...
S. A. No.6 of 2014 JUDG..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.06 OF 2014
APPELLANTS :- 1. Sau. Vandana Wd/o Nilesh Bhagat,
aged 38 years, Occ. Household,
2. Poonam D/o Nilesh Bhagat, aged 16
years, Occ. NIL,
3. Shubham S/o Nilesh Bhagat,
aged 14 years, Occ. NIL,
4. Aniket S/o. Nilesh Bhagat, aged 12
years, Occ.NIL
Appellant No.2 to 4 are since minor,
appearing through Appellant No.1 of
natural guardian,
All R/o Chikhli, Tq. Chikhli, Dist.
Buldhana.
..VERSUS..
:-
1. Sau. Asha Nilesh Bhagat, age 40 years,
RESPONDENTS
Occ. Household, R/o Dongaon, Tq.
Mehkar, Dist. Buldhana.
2. Nilesh Shamrao Bhagat (deceased),
Through Lrs.,
a Sau. Mandakini Devidas Shinde, age
49 years, R/o Isrul, Tq. Deulgaon Raja,
Dist. Buldhana.
S. A. No.6 of 2014 JUDG..odt
2
b Arundhata Dnyandeo Gawande, age 46
years, Occ. Agriculturist,
R/o Katha, Tq. Chikhli, Dist. Buldhana.
c Sau. Shila Sanjabrao Dukare, age 42
years, Occ. Agriculturist, R/o KUpgaon,
Tq. Chikhali, Dist. Buldhana.
d Sau. Manorama Sukhdeo Amle, age 38
years, Occ. Agriculturist, R/o. Warud,
Tq. Jafrabad, Dist. Jalna.
e Sau. Seema Pradeep Pawar, aged 36
years, Occ. Agriculturist, R/o
Malshemba, Tq. Chikhali, Dist.
Buldhana.
------------------------------------------------------------------------------------------------------------------------------------
Mr. N. A. Padhye, Advocate for Appellant.
Mr. S. S. Deshpande, Advocate for the Respondent No.1.
------------------------------------------------------------------------------------------------------------
CORAM ROHIT W. JOSHI, J.
RESERVED ON 25.11.2025
PRONOUNCED ON 12.02.2026
J U D G M E N T :
1) Heard finally with consent of the learned
Advocates for the respective parties.
2) The present Second Appeal is filed in order to
challenge judgment and decree dated 18.03.2013 passed by
the learned Ad-hoc District Judge-2, Buldhana in Regular
S. A. No.6 of 2014 JUDG..odt
3
Civil Appeal No.45 of 1997. By virtue of the said judgment
and decree the learned First Appellate Court has reversed
judgment and decree dated 06.02.1997 passed by the learned
Civil Judge, Senior Division, Buldhana in Hindu Marriage
Petition No.68 of 1995.
3) The aforesaid marriage petition was filed by late
Nilesh Bhagat, seeking decree for divorce against his wife,
who is the respondent in the present appeal, under Sections
13(1)(ia) and (1)(ib) of the Hindu Marriage Act,1955.
4) The learned Trial Court had granted a decree for
divorce vide judgment and decree dated 06.02.1997. The
said decree came to be reversed by the learned First
Appellate Court vide judgment and decree dated 18.03.2013.
5) The parties will be referred as 'husband' and 'wife'
hereinafter.
6) It will be pertinent to state that the husband has
expired during the pendency of the Regular Civil Appeal. The
appeal was disposed of as abated in view of the demise of the
husband. However, the wife filed application for restoration
and for bringing legal representatives of deceased husband
S. A. No.6 of 2014 JUDG..odt
4
on record. The said application was allowed by the learned
First Appellate Court and respondent No.1 who is mother and
respondent Nos. 2 to 5, who are sisters of the husband, were
arrayed as respondent Nos.1 to 6 in the appeal. Subsequently,
respondent Nos.6 to 9 were also added as parties. It is the
contention of the wife that the husband had solemnized a
second marriage with respondent No.6 and respondent Nos.7
to 9 are his children begotten from the said marriage.
7) The marriage between the parties was solemnized
on 15.05.1991 as per Hindu rites and customs. The couple is
not blessed with any issue. The parties stayed together for a
very short period after the marriage. The allegations of the
husband, as can be seen from the pleadings in the divorce
petition, are that the wife did not observe her household
duties and also did not attend the work in the agricultural
fields, her behavior towards family members and relatives
was improper and she used to insult them intermittently. The
husband has also alleged that the wife used to insist that they
should reside separate from the other family members. It is
also alleged that the wife used to call the husband and his
S. A. No.6 of 2014 JUDG..odt
5
mother as beggars and used to ill-treat them. It is also alleged
that the wife raised a quarrel while Shraddha ritual of the
husband's father was being observed in the year 1992 and
left the house on her own. The husband has specifically
stated that the wife was upset with the fact that the entire
property was owned and possessed by his mother and sisters
and used to insist for transferring the same in his name. It is
stated that notice for restitution was issued by the husband
on 03.08.1993, in response to which the wife issued reply
notice by levelling false allegations and did not come to
reside with the husband. It is also alleged that attempt for
reconciliation through relatives had also failed. Further
allegation is made that on 09.10.1994, the wife, her parents,
sister and brother came to the house of the husband and had
beaten him up. With these allegations, the aforesaid petition
was filed on 06.07.1995.
8) The wife filed her written statement opposing the
divorce petition. She denied all adverse allegation against
her. She alleged that the mother and sister of husband were
subjecting her to mental and physical cruelty. She asserted
S. A. No.6 of 2014 JUDG..odt
6
that she was ready and willing to continue with her marital
relationship. It was alleged that she was forced to leave the
matrimonial house on several occasions and was required to
take shelter at her parental house. The wife also alleged that
efforts of reconciliation at behest of her relatives did not yield
any positive results. She also alleged that the husband had
married with another lady although the marriage between
the parties was subsisting.
9) The wife had initiated proceedings under Section
125 of the Code of Criminal Procedure against the husband
and had also initiated criminal prosecution against him, his
family members and some other individuals for the offence of
bigamy punishable under Section 494 read with Section 109
of the Indian Penal Code.
10) The learned Trial Court gave opportunities to the
parties to reconcile their discord. However, those attempts
also did not bring about any positive result.
11) Based on rival pleadings, the learned Trial Court
framed issues on the point of cruelty and desertion.
12) On appreciation of evidence, the learned Trial Court
S. A. No.6 of 2014 JUDG..odt
7
held that both the grounds for divorce, i.e., cruelty and
desertion without reasonable cause, were established and has
granted a decree for divorce accordingly. The learned Trial
Court has held that the principal allegation of the wife was
that the husband was not willing to cohabit since demand for
motorcycle was not met by her parents. The learned Trial
Court held that the written statement was silent with respect
to demand of motorcycle and, therefore, the oral evidence
with respect to the alleged demand was not admissible. The
learned Trial Court refused to take into consideration the said
oral evidence since it was raised sans pleadings. The learned
Trial Court has referred to evidence of plaintiff’s witnesses
and has observed that in the reconciliation meeting held in
the year 1993, the wife and her relatives has raised quarrel,
as a consequence of which reconciliation talks failed. It is
observed by the learned Trial Court that the evidence of the
husband’s witnesses was more probable and a case was made
out for grant of divorce on the ground of cruelty as also on
the ground of desertion.
13) As stated above, the wife preferred an appeal
S. A. No.6 of 2014 JUDG..odt
8
challenging the said decree for divorce. The learned First
Appellate Court has reversed the decree for divorce by
holding that the husband had filed a petition for divorce only
on the ground of cruelty and not on the ground of desertion.
The learned First Appellate Court has considered the case of
cruelty and has held that the allegations were not proved.
The learned First Appellate Court has referred to the cross-
examination of the wife where questions were put to her with
respect to alleged demand at the time of marriage. Referring
to the said cross-examination, the learned First Appellate
Court has held that the tenor of cross-examination suggested
that there was no demand from the side of husband at the
time of marriage and the marriage was performed happily.
The learned First Appellate Court has also observed that
during the course of cross-examination of wife no suggestion
was given to her that she was short-tempered and
quarrelsome in her behavior with the husband and the family
members and that the veracity of the statements made by her
in the examination-in-chief was also not challenged in the
cross-examination. It is held that deliberately material
S. A. No.6 of 2014 JUDG..odt
9
questions were not put to the wife during her cross-
examination and thereby deprived her to give answers which
would have clarified her position. Thereafter the learned
First Appellate Court dealt with evidence of the witnesses of
the husband and has discarded the same principally on the
grounds that they were interested witnesses and also on the
ground that the evidence was lacking with respect to material
particulars as regards the exact date of the incidents narrated
in the examination-in-chief. The learned First Appellate Court
has also held that the contention with respect to harassment
on account of demand for motorcycle was not disputed in the
cross-examination and was therefore accepted. Likewise, it is
also held that the husband had married respondent No.6. As
regards the allegation with respect to demand of the wife to
get the property of the family transferred in the name of
husband, it is also observed that this conduct was in good
faith. In view of such findings, the appeal came to be allowed
and decree for divorce passed by the learned Trial Court
came to be dismissed.
14) As regards the second marriage, it must be stated
S. A. No.6 of 2014 JUDG..odt
10
that the husband has not denied the fact of marriage with
respondent No.6. It is, however, his contention that the
marriage was solemnized after decree for divorce was
granted by the learned Trial Court. The husband, therefore,
contends that respondent No.6 is his legally wedded wife.
15) In this regard, it must be stated that although the
wife has stated in her written statement that the husband had
married with respondent No.6 while the marriage was
subsisting, she has also stated that she was ready to cohabit
with the husband.
16) The present appeal came to be admitted vide order
dated 27.07.2018 on the following substantial question of
law :-
“Whether the appellate Court was legally
justified in reversing the decree passed by the
trial Court dissolving the marriage between the
parties ?”
17) The finding by the learned First Appellate Court
that the husband had sought divorce only on the ground of
cruelty is contrary to the record. Perusal of pleadings will
S. A. No.6 of 2014 JUDG..odt
11
clearly reveal that apart from cruelty, allegations of desertion
are also made in the petition. It is specifically pleaded that
the wife had left the marital house in Pitrupaksh of the year
1992, a day after Shraddha ritual of husband's father was
observed. The husband has stated that the wife was insisting
for separating from the family in mess and residence and had
left the house since the said demand is not met. There are
pleadings with respect to attempts on the part of the husband
to bring the wife back to her marital house. Pleading is also
made with respect to meeting held on 25.07.1993 for
reconciliation. It is also stated that notice dated 03.08.1993
was issued for restitution, however, the wife issued a false
reply notice dated 11.08.1993 and refused to cohabit. The
learned Trial Court has also framed issue on the point of
desertion. The finding by the learned First Appellate Court
that the petition is not filed on the ground of the desertion is
contrary to the record. It will, therefore, be necessary to
direct the learned First Appellate Court to revisit matter and
deal with the contentions pertaining to desertion.
18) As regards cruelty, the learned First Appellate Court
S. A. No.6 of 2014 JUDG..odt
12
has disbelieved the evidence of the husband, his mother,
maternal uncle and two neighbors on the ground that the
said witnesses are interested witnesses. The evidence is also
disbelieved by stating that material particulars such as date,
time and place of incidents are not narrated by the said
witnesses.
19) While discarding the evidence of witnesses of the
husband, the learned First Appellate Court has accepted the
evidence of wife and her witnesses, which also lacks such
particulars. More importantly, the learned First Appellate
Court has held that the wife had proved her allegation that
she was being harassed by the husband on the ground that
his demand for a motorcycle was not fulfilled by her father.
The learned First Appellate Court completely lost sight of the
fact that the said evidence was clearly beyond the pleadings.
The wife did not plead that she was subjected to cruelty or
harassment on account of the so called demand for
motorcycle. Perusal of reasons recorded by the learned First
Appellate Court indicates that the same yardstick is not
applied to both parties while appreciating the evidence. The
S. A. No.6 of 2014 JUDG..odt
13
findings on the aspect of cruelty are, therefore,
unsustainable.
20) As regards the contention of the wife that the
husband had solemnized a second marriage during
subsistence of his marriage with her, the husband has
admitted the second marriage. However, his contention is
that the marriage was solemnized after decree for divorce
was granted by the learned Trial Court. The wife is not
seeking divorce on the ground of bigamy. This version needs
to be dealt with bearing in mind that the wife has initiated
criminal prosecution against the husband and around 19
people for offence of bigamy. The finding by the learned Trial
Court that stance taken by the wife regarding her willingness
to cohabit is not believable. She had mentioned that she was
ready to cohabit with the husband despite the second
marriage.
21) In this regard, the learned First Appellate Court
should consider that it is the case of husband that the wife
was exerting pressure for transferring the properties standing
in the name of husband’s mother and sisters in his name. The
S. A. No.6 of 2014 JUDG..odt
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learned First Appellate Court should also consider as to
whether the statement made by wife about readiness to
cohabit with husband is an honest statement or designed
with a view to stake claim over properties of her in-laws,
which she claims to be properties of her husband.
22) Parties were residing separate since the year 1992
shortly after the marriage. All attempts of amicable
settlement have failed. The husband expired on 23.12.2004.
The learned First Appellate Court may also take into
consideration as to whether long separation with no attempt
of reconciliation and coupled with refusal to separate
formally will amount to cruelty or not, in the light of
decisions of the Hon’ble Supreme Court in the case of Samar
Ghosh Vs. Jaya Ghosh, reported in (2007) 4 SCC 511 and
Rakesh Raman Vs. Kavita, reported in (2023) 17 SCC 433.
23) In the light of reasons recorded, the substantial
question of law is answered in favour of the appellants and
against respondent No.1.
24) Judgment and decree dated 18.03.2013 passed by
the learned Ad-hoc District Judge-2, Buldhana in Regular
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15
Civil Appeal No.45 of 1997 is quashed and set aside.
25) Regular Civil Appeal No.45 of 1997 is remitted to
the learned First Appellate Court for deciding the same afresh
in accordance with law.
CIVIL APPLICATION (S) NO. 958 OF 2024
26) This is an application seeking permission to lead
additional evidence with respect to birth certificates dated
24.01.2005 of Pooja Nilesh Bhagat and Aniket Nilesh Bhagat,
issued by the Secretary, Grampanchayat Katoda. Since the
appeal is partly allowed remanding Regular Civil Appeal
No.45 of 1997 for fresh adjudication, liberty is granted to
respondent No.1/applicant to file appropriate application in
the said appeal. The Civil Application is disposed of.
27) All other pending Civil Applications are disposed of.
Parties to bear their own costs.
(ROHIT W. JOSHI, J.)
Tanmay...