Hindu Marriage Act, 1955 – ss.9, 13 – Respondent-husband filed petition being H.M.O.P No.13/2010 (old No.532/2007) seeking dissolution of marriage – Appellant-wife filed petition for restitution of conjugal rights – Petitions clubbed – Vide judgment dtd. 26.11.10, the petition filed by husband was dismissed while that of the wife’s was allowed – Husband’s appeal dismissed – High Court allowed the second appeal filed by husband and dissolved the marriage between the parties – Held: Husband filed petition at the first instance, seeking dissolution of marriage in H.M.O.P No.65/2007 (petition not pressed) alleging that the behaviour of wife was intemperate – Subsequent petition was filed on same set of allegations – It was alleged that she had also gone over to husband’s place of employment and demeaned him – Trial Court concluded that the evidence was insufficient to prove the allegations made – In a proceeding of the present nature where the Trial Court referred to the evidence and First Appellate Court being the last Court for reappreciation of evidence undertook the said exercise and arrived at concurrent decision on the matter, neither the High Court in the limited scope available to it in a second appeal u/s.100, CPC is entitled to reappreciate the evidence nor Supreme Court in the instant appeals is required to do so – Questions of law framed by High Court disclose that they do not qualify as substantial questions of law – Further,, though a criminal complaint was also lodged by the wife wherein husband was acquitted, the basis on which the husband approached the Trial Court is not of alleging mental cruelty in that regard but w.r.t her intemperate behaviour regarding which both the courts below concluded that the same was not proved – In that background, High Court was not justified in its conclusion – Impugned judgment set aside – Judgment dtd. 26.11.10 is restored – Code of Civil Procedure, 1908 – s.100.
Allowing the appeals, the Court
HELD: 1.1 The Trial Court having taken note of the evidence tendered through PW1 to PW4 had arrived at the conclusion that the said evidence was insufficient to prove the allegations made in the petition. In such circumstance, in a proceeding of the present nature where the Trial Court has referred to the evidence and the First Appellate Court being the last Court for reappreciation of the evidence has undertaken the said exercise and had arrived at a concurrent decision on the matter, the position of law is well settled that neither the High Court in the limited scope available to it in a Second Appeal under Section 100 of the Civil Procedure Code is entitled to reappreciate the evidence nor this Court in the instant appeals is required to do so. The very perusal of the questions framed would disclose that the questions raised does not qualify as substantial questions of law when the manner in which the parties had proceeded before the Trial Court is noticed. The questions framed in fact provides scope for re-appreciation of the evidence and not as substantial questions of law. [Paras 12, 13][1043 A-C; 1043 E-F]
1.2 Though the subsequent petition was filed by the husband in H.M.O.P No.13/2010 which was originally numbered as H.M.O.P No.532/2007, the same was also filed on the same set of allegations. Further at that point in time the wife had also filed a petition under Section 9 of the Hindu Marriage Act. In that background, though subsequently in the proceedings before the Trial Court a reference is made to the criminal proceedings, as on the date when the cause of action had arisen for the husband who initiated the proceedings seeking dissolution of the marriage, the criminal case filed against him was not the basis whereby a ground was raised of causing mental cruelty by filing such criminal complaint. If that be the position, a situation which was not the basis for initiating the petition for dissolution of marriage and when that was also not an issue before the Trial Court so as to tender evidence and a decision be taken, the High Court was not justified in raising the same as a substantial question of law and arriving at its conclusion in that regard. The tenor of the substantial questions of law as framed in the instant case and decision taken on that basis if approved, it would lead to a situation that in every case if a criminal case is filed by one of the parties to the marriage and the acquittal therein would have to be automatically treated as a ground for granting divorce which will be against the statutory provision. Though a criminal complaint was lodged by the wife and husband has been acquitted in the said proceedings the basis on which the husband had approached the Trial Court is not of alleging mental cruelty in that regard but with regard to her intemperate behaviour regarding which both the courts below on appreciation of the evidence had arrived at the conclusion that the same was not proved. [Paras 14, 15 and 18][1044 A-D; 1044 E-F; 1044-H; 1045 A-B]
Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 : [2006]
3 SCR 53; Sanghamitra Ghosh vs. Kajal Kumar Ghosh (2007) 2 SCC 220 : [2006] 9 Suppl. SCR 156; Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 : [2007] 4 SCR 428 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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