The Bombay High Court has quashed and set aside an order of a family court in Sholapur wherein an application filed by X seeking enhancement of compensation for herself and her son was rejected and her ex-husband’s (respondent) application seeking cancellation of maintenance was allowed.
The family court had relied upon an earlier order dated December 21, 2006, which allowed the respondent’s divorce petition and held that the said petition was allowed on grounds of adultery.
Although, X had argued that she had appealed against the said order, which was allowed, the family court held that a copy of the order had not been produced by her hence the contention could not be accepted.
Justice Shalini Phansalkar Joshi noted that the material on record shows that the same ground of adultery was raised when the petitioner had filed her application for maintenance under Section 125, but the same was categorically rejected and it was held that the respondent had failed to prove that X was ‘living in adultery’ with one Gautam Pawar.
It is only after this order that the respondent had filed his divorce petition in 2004 again alleging that the petitioner was living in adultery with Gautam Pawar and on grounds of desertion as well.
The court had answered in the negative as far as allegations of adultery were concerned, the petition for divorce was allowed on grounds of desertion only.
This judgment was challenged by the petitioner and it was again held that adultery could not be proved against her. Thus, on three separate instances, allegations of adultery were rejected.
The court sharply criticised the approach taken by the trial court and said:
“In such circumstances, it is apparent that the trial Court committed a grave error in holding that respondent has proved that the petitioner is living in adultery and for that purpose relied upon the judgment in H. M.P. No.21 of 2004. Merely because divorce is granted in the said H.M.P No.21 of 2004, the trial Court has without reading the said judgment assumed that it was on the ground of adultery.
The least expected from the trial Court was to peruse the said judgment to know that divorce was granted only on the ground of desertion and not on the ground of adultery at all.”
The court also noted that the finding recorded by the trial court that Gautam Pawar had been examined and his testimony was unchallenged was ‘perverse’, as Pawar had failed to appear for cross examination and only submitted an affidavit.
“Thus, it is apparent that the trial Court has not at all appreciated the evidence on record properly and drawn the conclusions which were not borne out from the material. The trial court should have taken sufficient care before branding the petitioner with the stigma of “living in adultery” when it was to be not proved by the courts in earlier three proceedings. Hence, the cancellation of the amount of maintenance, awarded to her on that count is totally illegal and unjust,” the court said.
Therefore, the criminal revision application was allowed and the maintenance amount for both petitioner and her son were increased.