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2012 Supreme(Guj) 160
2012 (2) GCD 1692 (Guj) (DB)
Hon’ble Mr. Justice Akil Kureshi
Hon’ble Mr. Justice C.L. Soni
Sapna Rameshchandra Trivedi W/O Darshan Janakbhai Joshi
Versus
Darshan Janakbhai Joshi
First Appeal No. 568 of 20101—Decided on 20/03/2012
Appearance :
Mr. Manan A. Shah, for the Appellant No. 1.
Mr. Utpal M. Panchal, for the Defendant No. 1.
Point in Issue :
Whether applicant husband is entitled to decree of divorce on ground of desertion.
Headnote:Head Note :
(a) Hindu Marriage Act, 1955 (Central Act 25 of 1955) — Section 13(1)(b) — Divorce — On ground of desertion — Finding as to — Sustainability — The marriage between parties took place on 21.01.2001 and admittedly on 15.05.2001 wife left her materimonial house — She complained of ill treatment by husband and other family members — The wife in her deposition in the form of affidavit gave no specific instances of such ill treatment — Her averments were by and large general in nature — It is not even her case that she was driven out of house by her husband or other family members that apart in her deposition admitted that she had come with father and collected all her belongings — This was a unilateral and voluntary act on her part — This was a strange behaviour on the part of newly married wife and clearly indicates her intention of not rejoining the husband — The marriage came to an end for all practical purposes for more than eight years — The Family Court has correctly found that wife had left the husband house without any reasonable cause on excuse and refused to resume cohabition in view of the matter Court refused to interfere with the decree of divorce passed by trial Courts on the application of husband — It also refused any interference in the order of rejecting the application of wife for judicial separation.
Held :
In the present case, admittedly, the wife resided separately from the husband from 15.5.2001. Admittedly there had been no cohabitation between the parties after that except for a short period of three days shortly thereafter. When the husband therefore presented his petition initially for a decree of judicial separation and thereafter converted the same into one for dissolution of marriage, period of two years as envisaged in Section 13(1)(ib) of the Act was already over. Only question therefore was whether this was a case of desertion by wife. In this respect, Court has already come to the conclusion that the trial Court has correctly found that the wife had left the husband’s house without any reasonable cause or excuse and refused to resume cohabitation. Court cannot help expressing Court feeling that with the little more patience and tolerance from both sides what should have, would have and could have been a happy marriage has turned out to be a failed affair. The marriage is dead for all practical purposes for more than eight years. [Para 26]
In that view of the matter, Court see no reason to interfere with the decree of divorce passed by the Family Court. For the same reason, order dismissing wife’s petition for judicial separation requires no interference. [Para 27]
Head Note :
(b) Hindu Marriage Act, 1955 (Central Act 25 of 1955) — Section 25 — Maintenance — Grant of Rs. 3000/- P.M. — Claim for enhancement by wife — Scope of — Finding as to — The husband is admittedly employed as a clerk in Co-operative Bank and has no other sources of income — Court considering the current income of husband even after giving benefit for support his aged parents, held that wife must get monthly maintenance of Rs. 8000.00 — Suit amount obviously can not be paid from the date of decree since the income of the husband at that time would not be at the same level as present and would be considerably lower Court there directed husband to pay monthly maintenance of Rs. 4500.00 to wife from the date of decree till 31.12.2010 and from 01.01.2011 on wards Rs. 8000.00 per months — The contention on behalf of husband that wife has done the course of fashions design therefore can not maintain herself has no force and can not be accepted in absence of any evidence on record.
Held :
The husband has been contending that the wife has done the course of fashion design but nothing is produced on record to this effect. There was no evidence worth the name to show that the wife was earning any independent income from such activity or from any other source. Court must therefore hold that the wife has no independent source of income. Therefore, looking to the current income of the husband, even after giving some benefit for the support of his aged parents, Court is of the opinion that the wife must receive monthly maintenance of Rs. 8000.00. Such amount obviously cannot be paid from the date of decree since the income of the husband at that time would not be at the same level as present and would be considerably lower. [Para 33]
In the facts of the case, therefore, Court direct that the husband shall pay monthly maintenance of Rs. 4500.00 to the wife from the date of the decree till 31.12.2010 and from 1.1.2011 onward, husband shall pay maintenance of Rs. 8000.00 every month. [Para 34]
Law Laid Down :
Under the Act desertion means the desertion of a party by this party to marriage without reasonable cause and without consent and includes the willful neglect of party by other party of marriage.
Akil Kureshi, J.—These two appeals arise out of common judgment dated 30th January, 2009 passed by the learned Principal Judge, Family Court, Surat disposing of two separate proceedings instituted by the appellant wife and respondent husband.
2. Brief facts may be noted at the outset:
The appellant and respondent married according to the Hindu rites on 21.1.2001. Only after about four months of married life, disputes surfaced between the parties. The wife left the house of husband and started residing with her father from May, 2001. Since there was no reconciliation between the two for a considerable period, the wife filed an application for judicial separation before the competent Civil Court which was numbered as Hindu Marriage Petition No. 50 of 2002. Shortly thereafter, the husband also filed application for similar prayer. Husband’s petition was numbered as Hindu Marriage Petition No. 14 of 2003. Both these proceedings came to be transferred to the Family Court, Surat upon establishment of such Family Court. Wife’s application was re-numbered as Family Suit No. 764 of 2008. Husband’s application was re-numbered as Hindu Marriage Petition No. 215 of 2008. The husband, in the mean time, had amended his petition and prayed for a decree of divorce on the ground of desertion by the wife. Such proceedings came to be consolidated by the Family Court, Surat. Common evidence was recorded. By common judgment dated 30th January, 2009, the Family Court dismissed the wife’s petition for judicial separation and allowed the husband’s petition for divorce and granted decree accordingly. During the pendency of such proceedings, interim maintenance of Rs. 2,000.00 was being paid to the wife. The Family Court while disposing of such proceedings finally, directed the husband to pay monthly maintenance of Rs. 3,000.00 from the date of the decree till the wife’s remarriage.
3. In First Appeal No. 568 of 2010, the wife has challenged the judgment and decree passed by the Family Court in Family Suit No. 215 of 2008 by virtue of which the husband has been granted decree of divorce. In First Appeal No. 736 of 2009, the wife has challenged very same judgment of Family Court in so far as her petition for judicial separation was dismissed. The wife has also sought enhancement of the monthly maintenance of Rs. 3000.00 fixed by the Family Court on the ground that the husband is earning handsome income. He is employed as a Clerk in a Co-operative Bank. He has additional source of income from musical orchestra in which he participates professionally.
4. Before the Family Court, the wife’s grounds for judicial separation were that she was ill treated by the husband and other family members. She was being taunted for inadequate dowry which she had brought. She was made to over work by the family of the husband. She was even when not keeping well, not taken to the doctor for medical treatment. On one occasion, the mother in law had falsely blamed her for missing earrings.
5. The husband, initially, also had filed petition seeking decree of judicial separation. However, since for several years after husband and wife started residing separately there was no reconciliation, the husband sought and was granted permission to amend his petition converting the same into one for divorce under Section 13(1)(ib) of the Hindu Marriage Act, 1955 (“the Act” for short).
Case of the husband before the Family Court was that he had treated the wife properly. The wife had never shown willingness to perform her duties and responsibilities of married life. Time and again, she would make false excuses and she was not interested in cohabitation with the husband. She had deserted the husband on 15.5.2001, never to return to the matrimonial home.
6. The Family Court in the impugned judgment, framed following issues:
1. Whether the petitioner-wife Sapnaben proves that opponent has done mental and physical cruelty with her?
2. Whether the petitioner-wife Sapnaben is entitled to
