JUDGMENT :

Jayant Patel, J.

The present appeals arise against the judgment and order passed by the Family Court dated 16.06.2003 in Family Suit No. 996 of 2000 with Misc. Civil Application No. 33 of 2000, whereby the marriage between the Appellant and Respondent is dissolved and the respondent - husband is further directed to pay the maintenance at the rate of Rs.4,000/- per month. Below Misc. Civil Application No. 33 of 2000, it is ordered that the children be handed over to the wife on every Sunday from 11.00 a.m. to 5.00 p.m. and in Diwali vacation custody of children be handed over for a week and in Summer vacation for 15 days.

2. The short facts are that the marriage of the appellant with the respondent (for the sake of convenience, the appellant shall be referred to as 'the wife' and the respondent shall be referred to as 'the husband') had taken place on 26.05.1989. Out of wedlock, one daughter “Priyal” and one son “Harsh” were born and initially the marriage life was good. However, as the husband was in medical professional and he was of the view that he was getting good income, he insisted the wife to leave job and to take care of children. But, as the wife was not coming back to the home in time after completion of service, it gave rise to the dispute between the husband and wife. As per the wife, she was compelled to leave the house and stay with the parents. There was also police complaint and ultimately, the said situation continued for a considerable time.

3. Under these circumstances, the husband contending that the wife has deserted him, and filed the suit being Family Suit No. 396 of 2000 for the dissolution of marriage. It may also be recorded that the wife preferred Civil Misc. Application No. 33 of 2000 for getting custody of the children which was with the husband on the ground that she is natural guardian of both the children and if the children are kept with the husband, there will not be proper care of their future and therefore, the custody be given to the wife.

4. The Learned Judge of the Family Court has, at the conclusion of the proceedings, passed the above referred judgment and decree for dissolution of marriage as well as the order of giving custody of the children to the wife for a limited period. Under these circumstances, the present appeal before this Court.

5. We may state that the wife has preferred appeal being First Appeal No. 725 of 2004 for challenging the decree for dissolution of marriage and First Appeal No. 726 of 2004 for not giving permanent custody of children. Whereas the husband has preferred First Appeal No. 1342 of 2004 against the order of the Family Court for maintenance of Rs.4,000/- per month.

6. We have heard Learned Counsel Mr. Balsare appearing for the wife and Ms.Contractor with Mr. Nanavati for the husband. We have considered the record and proceedings. We have also considered the judgment and order and the reasons recorded by the Learned Judge of the Family Court.

7. The evidence led on behalf of the husband, if considered with the evidence of his mother, it appears from the record that the following aspects have been proved and rather there is no dispute on that.

1. The marriage between the husband and the wife was in the year 1989.

2. One daughter and one son were born out of the wedlock.

3. The husband initially was serving as doctor in Government Hospital and thereafter, started his own practise as medical professional. The wife, prior to marriage, was working with the State Government in P.W.D. Department and she continued the service even after the marriage.

4. The dispute arose somewhere in the year 1996 between the husband and the wife and since then, both are staying separate.

8. The only question was to be considered by the Lower Court as to whether the wife has deserted the husband or not or the husband has created such circumstances compelling the wife to leave the home of the husband, based on the legitimate right available. Before we further consider the factual as