VIDHYA PRABHAKAR JOSHI Vs. PRABHAKAR NARSINHA JOSHI

JUDGEMENT

(1.) THIS Appeal has focussed on two areas of some consequence. Firstly in what situations would a matrimonial Court justified in refusing a relief ? Barring the class of cases where the evidence is so hopelessly bad that even on a benovelent view a relief becomes impossible and the situation where the party is totally disqualified for a relief because absolutely no case is made out, a matrimonial forum would be precluded from passing a decree where there is direct evidence of condonation. Matrimonial statutes take cognizance of the fact that lapses, indiscretions and misdeanours howsoever serious, can always be pardoned if the parties are mature enough and are willing to put these incidents behind them and still keep the relationship alive. Proceeding on the maxim that to err is human and to forgive is divine, this branch of law prescribes that condonation of a matrimonial offence will virtually obliterate those incidents and that the law will consequently disregard them, as though they are wiped out from memory-they cannot therefore be resurrected and used for any purpose in a legal proceeding. It is impermissible at a post condonation stage to seek to revive the old accusations and a Court will have to totally disregard all this material barring anything that has transpired at a post condonation point of time which alone will qualify for consideration. It is for good reason that Section 23 of the Hindu Marriage Act provides, as in the case of similar provisions in other statutes, that once the matrimonial offences howsoever serious have been condoned that there is a legal bar to the use of such material as the basis for a relief before a court of Law. This, therefore, is one of the few situations in which a decree will have to be refuted.

(2.) NEXT comes the question of multiplicity of proceedings in relation to the award of maintenance. The jurisdiction of a Criminal Court to award maintenance is essentially an emergency provision and orders passed in such proceedings are necessarily subject to maintenance orders passed by a Matrimonial Court. Basically, the pendency of proceedings under Section 125, Cr. P. C. can never be treated as a bar to the passing or appropriate orders by a Matrimonial forum and the proceedings before the learned magistrate would automatically come to an end even if some interim orders have been passed because those orders will merge with the orders passed by the Matrimonial Court, having regard to the limitation of rs. 500 that is incorporated in Section 125, Cr. P. C. A Matrimonial court must, at the earliest available opportunity, review the case and if the circumstances require award appropriate maintenance of a higher amount.

(3.) THE appellant-wife has, through this appeal assailed the correctness of a judgment and decree passed against her by the Family Court at Pune on 29-10-1991. The respondent-husband has presented a petition to the Family Court praying for a decree under Section 13 of Hindu marriage Act. The charge against the wife was that she is alleged to have been responsible for various acts of cruelty and the petitioner had contended that these acts individually and collectively were sufficient to entitle him to a decree of divorce. The couple were married on 1-5-1977 according to Hindu vedic rites. They have a son by the name of Pushkaraj born in February, 1978 and the second child, a daughter by the name of Ketki born in August, 1987. The couple were residing together alongwith the husband's parents at Pune till 9-5-1988. Thereafter, they lived together for some time in rented premises away from the parents. Finally, on 16-7-1990 the present petition was filed by the husband wherein he alleged that a situation of total break-down of marriage has emerged and the grounds set out by him in the petition essentially were to the effect that the respondent wife was the sole contributory to (hat state of affairs. It is material to mention here that the petitioner-husband had highlighted one fact, namely that according to him he had suffered a serious health break-down, that he had been hospitalised and operated on and that his condition had reached quite a precarious situation on more than one occasion and he alleges that inspite of this condition of his, that the respondent-wife did not change her attitude.