Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S.OKA & REVATI MOHITE DERE, JJ.
"S"
Vs.
"D"
Family Court Appeal No.27 of 2005 with Civil Application No.149 of 2010
Decided On : 4th September, 2013
HINDU MARRIAGE ACT, 1955 - Section 13(1)(i-b) - Divorce on ground of desertion. - Since intention of wife to desert husband, clearly can be inferred on basis of evidence on record hence husband entitled to decree of divorce on ground of desertion. - There is no overt act made by the respondent which is brought on record to show that a genuine effort was made by her to resume matrimonial relationship. As stated earlier, till the year 2002, the respondent neither file a petition for restitution of conjugal rights nor issued a legal notice calling upon the appellant to resume cohabitation. Perhaps in the reply to the legal notice, an attempt was made to come out with the case that there was a sufficient cause for not resuming the cohabitation. The cause pleaded was the threat to her life and limb. This case has not been substantiated in the evidence by the respondent. Therefore, the only inference which can be drawn is that there was a clear intention on the part of the respondent to abandon matrimonial ties with the appellant. The only inference which can be drawn is of intention on the part of the respondent to desert the appellant. As stated earlier, no attempt has been made to prove that the desertion was for a reasonable cause. The respondent has not established that due to any particular conduct on the part of the appellant that she was not willing to resume cohabitation. Therefore, this was a case where a decree ought to have been passed on the ground incorporated in clause (i-b) of sub-section (1) of Section 13 of the said Act. Perusal of the judgment of the Family Court shows that no attempt has been made even to advert to the pleadings and the evidence on the issue of desertion. Very cryptic reasons have been recorded by the Judge of the Family Court for declining to grant a decree of restitution of conjugal rights. To that extent, the impugned judgment and decree will have to be set aside.
A. S. OKA, J.
As this Judgment will be available on public domain, we have described the Appellant and Respondent as 'S' and 'D' respectively. The Appellant-husband has taken an exception to the judgment and decree dated 18th August, 2003 passed by the learned Judge of the Family Court, Pune, by which a petition for divorce filed by the Appellant and the counter-claim made by the Respondent wife for restitution of conjugal rights have been dismissed. We must note here that the earlier Division Bench had kept the Appeal in Chamber with a view to bring about amicable settlement between the Appellant and Respondent. However, as amicable settlement was not possible, on 20th August, 2013, the Appeal was directed to be placed on final hearing board. Accordingly, we have taken up the Appeal for final hearing.
2. The Appellant husband applied for divorce on the ground of cruelty and desertion under clauses (ia) and (ib) of sub-section (1) of Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the said Act"). With a view to appreciate the submissions made across the bar, it will be necessary to make a brief reference to the factual aspects of the case.
3. The marriage between the Appellant and the Respondent was solemnized on 4th December, 1994 according to Hindu Vedic Rites. A female child was born on 24th November, 1995 from the wed-lock.
4. In support of the plea of cruelty, various allegations have been made by the Appellant. The allegations start from the very day of marriage. It is contended that on the day of marriage, the parties went to Shegaon to pay obeisance to Saint Gajanan Maharaj. It is alleged that the Respondent wife refused to visit the temple. It is alleged that for a period of 6 months from the marriage, the Respondent cohabited properly. The allegations are made in the petition by the Appellant that thereafter, the Respondent started becoming obstinate. She did not attend to the domestic work properly. It is alleged that she insulted the Appellant's parents and brother. It is alleged that on two occasions, the Respondent threw away her Mangalsutra towards the Appellant by stating that she did not want his bondage and wanted to return to her father. It is alleged that in June 1995, the Respondent proceeded to her parent's home for the purpose of delivery. However, she did not resume cohabitation for a period of one year. It is alleged that without consulting the Appellant or his parents, the Respondent and her parents scheduled the naming ceremony of the girl child on 21st December, 1995 and gave intimation of the same to the Appellant only two days prior to the said date. It is alleged that the Appellant visited the house of the Respondent's parents to bring her back. It is alleged that the Respondent insulted the Appellant at the time of visit. It is alleged that the parties resumed co-habitation, but the behaviour of the Respondent did not improve. She started insisting that the Appellant should make an arrangement for their separate residence. The averments have been made in the petition as regards the conduct of the Respondent in relation to marriage of the Respondent's cousin. There is an allegation made in the petition that the Respondent always used to tell the Appellant that she should be sent back to her parent's home. It is alleged that in March, 1998, the Respondent beat minor daughter by a stick who is only two years of age at that time. It is alleged that Respondent has made false allegations against the Appellant and his parents, therefore, the Appellant was compelled to send a message to Respondent's father and call Respondent's father to Pune where the parties were cohabiting. It is alleged that Respondent's father decided to take the Respondent with him but the Appellant resisted. Due to resistance, the Respondent's father filed a complaint with Shramik Mahila Sanstha as well as Hadapsar Police outpost. The Respondent's father alleged in the complaint that the Appellant ma
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
