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fca.74.13.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 74 OF 2013 IN PETITION NO. A-419 OF 2011
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.... Mr. Pankaj Shinde Adv cate 4 r the Appe&&ant Mr. 5e!ant +hadiga nkar Adv cate 4 r the Resp ndent ....
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Mr. Sandip Sitara! Pednekar ] Occ/ Service, residing at R ! " .#20] May%resh $%i&ding, ] 1attara! 2ad Marg, 3a&ach (ki, ] M%!bai,#-- -00 ]..Resp ndent
CORAM
RESERVED ON PRONOUNCED ON
H
SMT.V.!.TAHILRAMANI AND SHRI. P.N.DESHMU!H" JJ. FEB." MARCH 13" 2014 3" 2014 1 of 15
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Mrs. Sanjana Sandip Pednekar ] Age 29 years, Indian Inhabitant ] Occ; Service, residing at R ! " .# ] $%i&ding " .', $h i(ada )ransit *a!p] Shankarb%va +hadi Marg, ] $h i(ada, Pare&, M%!bai,#-- -'2 ]..Appe&&ant
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'
)he !arriage
(as his (i4e, treated hi! (ith cr%e&ty, hence, the resp ndent 4i&ed a petiti n i.e. Petiti n " . A,#'9 4 2-'' 4 r div rce n the gr %nd 4 cr%e&ty. )he said petiti n ca!e t be a&& (ed by the 8a!i&y
ba y
* %rt,
M%!bai
H
by
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j%dg!ent
(as s &e!ni6ed
'9.'2.2-'2. $eing aggrieved by the said rder, this appea& has been pre4erred.
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It is an ad!itted 4act that the !arriage bet(een the k p&ace n 7.'2.2--9 at )he case 4 the 4 his 4 the! the
appe&&ant is that the resp ndent (as the da%ghter !aterna& %nc&e. )here (as & ve a44air bet(een b th
C ou
and rder dated
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!arriage.
cr%e&ty,
the
resp ndent,h%sband
re&ied
instances/ 9i:
days and three nights. atte!pts t a&& ( hi! t h ney! 4act. 9ii:
Acc rding t
that
om
"ashik 4 r
ba y
n 2#th, 2;th and 2<th =an%ary, 2-'- the (i4e (ent t 44ice ( rk in spite 4 being advised n t t d s as
they (ere ne(&y !arried. $%t the (i4e (ent %t 4 M%!bai n her 44ice ( rk. )he 4%rther case 4 the h%sband is that the
(i4e %sed t (ear shirt and pant (hi&e g ing t the 44ice (hich (as n t &iked by hi!. She %sed t pick %p >%arre&s (ith hi!
and his parents and she never gave respect t his parents. 9iii: An ther incident re&ied %p n by the h%sband t sh (
ig h
5ence,
Mahaba&esh(ar 4 r h ney!
n c !ing back 4r !
C ou
n the 4 && (ing n 4 r 4 %r
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In
rder t
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that he (as treated cr%e&&y by the (i4e, is that n 2.2.2-'- his (i4e ret%rned h !e 4r ! 44ice at '-.-- p.!. tried t !anner. c nvince the (i4e t
and his parents c nvinced her and she stayed the night.
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the ne?t day, the h%sband and his parents ca&&ed her parents
(i4e
4 her
(n acc rd, &e4t the !atri! nia& h !e a& ng (ith )his is s%! and s%bstance 4 the a&&egati ns 4
om
ba y
her parents.
In
rder t
)herea4ter
<
the a&&egati ns !ade by the h%sband regarding picking %p >%arre&s and n t giving respect t his parents, are 4 %nd t
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n 7.2.2-'- the
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vag%e and n
!ateria& partic%&ars have been given by the these a&&egati ns. )he !ain gr %nd
Mahaba&esh(ar 4 r 4 %r days and three nights, he !ade atte!pts t a&& ( hi! t c ns%!!ate the !arriage b%t the (i4e re4%sed t
c ns%!!ati n
ig h
ther t
t %ch her.
Acc rding t
essentia& a! %nt t
b&igati ns
ba y
s%bjecting the
H
4 the
b&igati ns
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Married &i4e (ith %t a se?%a& &i4e (i&& be a c%rse. " r!a& se?%a& &i4e cann t be deserted 4r ! a happy !arita& &i4e. It (as
92: A&& @R 097/ Athat (i&&4%& and %nj%sti4iab&e re4%sa& interc %rse is destr%ctive
4 !arriage, ! re destr%ctive,
perhaps, than anything e&se. =%st as n r!a& se?%a& interc %rse is the n r!a& b nd 4 !arriage, s the (i&&4%& re4%sa& 4 it
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n t
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ca%ses a !arriage t
disintegrate.
It gives rise t
irritabi&ity
and disc rd, t nerv %sness and !ani4estati ns 4 te!per, and hence, t the break d (n 4 !arriage.
B re4%sa& t
)he &earned c %nse& 4 r the h%sband c ntended that have se?%a& interc %rse c&ear&y a! %nts t cr%e&ty.
the case
4 G%&'%( S)*+, V-. H.&/)*01& !.%&2 2010 ALL s%pp rt his c ntenti n. 5e p inted %t that in
4 re4%sa& t
om
the evidence
ba y
4 the j%dg!ent, it is he&d that A%ni&atera& have interc %rse 4 r c nsiderab&e peri d r va&id reas n,
)he &earned c %nse& 4 r the appe&&ant s%b!itted that 4 the (i4e c&ear&y sh (s that at that ti!e her n and it is beca%se 4 this that
she re4%sed t a&& ( the h%sband t c ns%!!ate the !arriage. )he &earned c %nse& 4 r the appe&&ant has a&s p inted %t that e?cept 4 r the peri d 4 4 %r days that they had g ne t a&&egati n !ade by the h%sband
Mahaba&esh(ar, there is n
ig h
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that the (i4e therea4ter a&s c ntin%ed t re4%se t have se?%a& interc %rse. On g ing thr %gh the evidence, (e 4ind this is s . )h%s, j%st d%ring 0 t n the basis 4 the evidence 4 the resp ndent that
4 r re4%sa& t have se?%a& interc %rse d%ring this peri d i.e. her !enstr%a& cyc&e (as g ing n.
In the case
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2009 637 M,.L.J. 6SC7 143" the S%pre!e * %rt, a4ter bserved that Ai4 it is the nat%re 4 the
om
cr%e& treat!ent and then as t the i!pact 4 s%ch treat!ent n the !ind 4 the ther sp %se. Chether it ca%sed reas nab&e r inj%ri %s 4 r hi! t 4 in4erence t &ive be
(ith the resp ndent %&ti!ate&y is a !atter dra(n by taking int e44ect acc %nt the nat%re
ig h
Chether
been g%i&ty
C ou
4 c nd%ct and its ne sp %se has 4 4act
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and previ %s&y decided cases have &itt&e, i4 any, va&%e. * %rt is e?pected t c nditi n
)he
ne sp %se n the !ind 4 the ther (eighing a&& incidents and >%arre&s bet(een the sp %ses 4r ! that p int 4 vie(.A
'-
seeking a decree
appea& arising 4r ! a !atri! nia& petiti n 4i&ed by the h%sband 4 div rce n the gr %nd 4 cr%e&ty, has
ba y
bserved that Athe 4 %ndati n 4 a s %nd !arriage is t &erance, ne an ther. ) &erance t each
ig h
om
every !arriage, Petty >%ibb&es, tri4&ing di44erences sh %&d n t be e?aggerated and !agni4ied t destr y (hat is said t have
been !ade in heaven. A&& >%arre&s !%st be (eighed 4r ! that p int 4 vie( in deter!ining (hat c nstit%tes cr%e&ty in each
partic%&ar case and as n ted ab ve, a&(ays keeping in vie( the physica& and !enta& c nditi ns and s cia& stat%s. A t 4 the parties, their character
C ou
4 be inherent in
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the instit%ti n
4 !arriage.
4 the incidents
se?%a& interc %rse d%ring 0 t # days peri d d%ring (hich they had g ne t Mahaba&esh(ar 4 r h ney! n, h%sband has
hi! and his parents and she never gave respect t his parents.
partic%&ars have been stated by the resp ndent and n&y vag%e and genera& a&&egati ns have been !ade by hi!. )hese, in %r
om
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re&ied n his evidence that the (i4e %sed t pick %p >%arre& (ith
ig h
''
(ith cr%e&ty.
'2
c ntend that
"ashik 4 r
despite the 4act that he had advised her n t t t d s as they (ere ne(&y !arried. )he !arriage had taken p&ace n
C ou
4 the a&&eged have !ateria& n 2#th, 2;th 44ice ( rk
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(ives. It has t dea& (ith partic%&ar !an and ( !an be4 re it.A
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fca.74.13.sxw
7.'2.2--9. )his !eans that a4ter 'E ! nth the (i4e had g ne t "ashik 4 r
4 the !arriage,
necessary 4 r her t
44ice ( rk, n
'0
sti&& in %r pini n, the c nd%ct 4 the appe&&ant (as n t 4 s%ch as t give rise t a reas nab&e
har!4%&
ba y
r inj%ri %s 4 r hi! t
ig h
om
t rt%re. In the
s%ch that n reas nab&e pers n ( %&d t &erate it. Parties t the !arriage, tying n%ptia& kn t, are s%pp sed t %ni n 4 t( s %&s. bring ab %t the 4 & ve,
a44ecti n, care and c ncern bet(een the h%sband and (i4e and that it brings t( a&& (ed t 4a!i&ies t gether. S%ch ties cann t be
be severed
C ou
4a%&t can be 4 %nd
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4act that the (i4e (as ( rking and in s%ch case, i4 it (as
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fca.74.13.sxw
are
" ne
4 the
a4 re!enti ned incidents r c nd%ct 4 the (i4e, in %r pini n, c %&d be ter!ed as Agrave and (eightyA t ca%se 4 r cr%e&ty. be treated as the
have t
ig h
4 cr%e&ty cann t be
pened s
(ide
4 div rce.
'#
ba y
the gr %nd
appe&&ant %sed t
om
(hich (as n t &iked by hi!. )he appe&&ant and the resp ndent are b th ed%cated pers ns. $ th are ( rking. It is n t his case that she %sed t 44ice. 2 (ear shirt and pant every day (hi&e g ing t
king t the strata 4 the s ciety 4r ! (hich they are (ear shirt and pant
c !ing, ass%!ing that the (i4e %sed t (hi&e g ing t c nd%ct 44ice n 4e(
n the part
4 the (i4e as t
C ou
r 4 2egis&at%re (hen
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gr %nd 4 cr%e&ty.
by the h%sband is that the (i4e treated hi! (ith cr%e&ty 2.2.2-'- (hen she ret%rned h !e 4r ! )he resp ndent tried t
and p%shed the h%sband and started t c &&ect her c& thes and be& ngings in rder t g t her parents h %se. As 4ar as this
parents c nvinced her and she did n t &eave the h %se that
om
'<
ba y
night. On the ne?t day, the h%sband and his parents ca&&ed her
In the case
* %rt has interpreted the ( rd Acr%e&tyA. )he Acr%e&tyA (hich has n t been de4ined in the Act, th %gh it has been speci4ica&&y %sed in Secti n '09':9ia: 4 the Act, the S%pre!e * %rt 4 c nd%ct 4 ne (hich
ig h
C ou
n 44ice at '-.-- p.!. behave in a
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is adverse&y a44ecting the ther. )he cr%e&ty !ay be !enta& r physica&, intenti na& >%esti n r %nintenti na&. I4 it is physica&, it is a
begin as t the nat%re 4 the cr%e& treat!ent and then as t the i!pact 4 s%ch treat!ent n the !ind 4 the sp %se. Chether it ca%sed reas nab&e apprehensi n that it ( %&d be har!4%&
ig h
inj%ri %s t
int
ba y
n the
r c nsidered. In s%ch case, the cr%e&ty (i&& be estab&ished r ad!itted. )he absence 4
om
intenti n sh %&d n t !ake any di44erence in the case, i4 by rdinary sense in h%!an a44airs, the act c !p&ained 4 c %&d
e&e!ent in cr%e&ty. )he re&ie4 t the party cann t be denied n the gr %nd that there has been n treat!ent.A de&iberate r (i&&4%& i&&,
C ou
r 4 4 the
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'B
)he !arried &i4e sh %&d be assessed as a (h &e and a ver certain peri d (i&& n t a! %nt t
cr%e&ty. )he i&&,c nd%ct !%st be preceded 4 r a 4air&y &engthy peri d (here the re&ati nship has deteri rated t that beca%se 4 the acts and behavi %r
4 a sp %se,
!ay a! %nt t !enta& cr%e&ty. Mere trivia& irritati ns, >%arre&s, n r!a& (ear and tear 4 !arried &i4e (hich happens in day t 4
div rce
n the gr %nd
H
rder
4 the
ba y
and reprehensib&e c nd%ct a44ecting physica& and !enta& hea&th ther sp %se !ay &ead t !enta& cr%e&ty. )here is n
om
'7
the parties. On g ing thr %gh the sa!e, (e are satis4ied that n the basis 4 s%ch instances, the !arriage cann t be 4 the !atter, the appea& is a&& (ed. dated '9.'2.2-'2 passed by the
ig h
4inds it e?tre!e&y di44ic%&t t &ive (ith the ther party n & nger
C ou
an e?tent ne party
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4 2-''
thereby diss &ving the !arriage bet(een the parties, by a decree 4 div rce, is set aside. '9 2" rder as t c sts.
om
ba y
H
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ig h
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