S. A. No.6 of 2014 JUDG..odt

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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..

RESPONDENTS

:-1.Sau. Asha Nilesh Bhagat, age 40 years,

Occ. Household, R/o Dongaon, Tq.

Mehkar, Dist. Buldhana.

2.Nilesh Shamrao Bhagat (deceased),

Through Lrs.,

aSau. Mandakini Devidas Shinde, age

49 years, R/o Isrul, Tq. Deulgaon Raja,

Dist. Buldhana. 2026:BHC-NAG:2348

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bArundhata Dnyandeo Gawande, age 46

years, Occ. Agriculturist,

R/o Katha, Tq. Chikhli, Dist. Buldhana.

cSau. Shila Sanjabrao Dukare, age 42

years, Occ. Agriculturist, R/o KUpgaon,

Tq. Chikhali, Dist. Buldhana.

dSau. Manorama Sukhdeo Amle, age 38

years, Occ. Agriculturist, R/o. Warud,

Tq. Jafrabad, Dist. Jalna.

eSau. Seema Pradeep Pawar, aged 36

years, Occ. Agriculturist, R/o

Malshemba, Tq. Chikhali, Dist.

Buldhana.

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Mr. N. A. Padhye, Advocate for Appellant.

Mr. S. S. Deshpande, Advocate for the Respondent No.1.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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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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...