Desertion under the Hindu Marriage Act requires proof of continuous separation for two years, which was not established in this case.

JUDGMENT :

BIREN VAISHNAV, J.

1. First Appeal No.1016 of 2018 has been filed by the appellant-wife challenging the judgement and order dated 11.10.2017 passed by the Principal Judge, Family Court, Vadodara, in Family Suit No.1188 of 2010. Family Suit No.1188 of 2010 was filed by Dinesh Jasbhai Patel-the husband, the respondent in First Appeal No.1016 of 2018 by which he prayed for a decree of divorce under Section 13 of the Hindu Marriage Act on the ground of desertion and cruelty. By the aforesaid judgement and order, the suit of the plaintiff husband was allowed. The marriage between the appellant and the respondent was directed to be dissolved. Hence, the appeal by the wife.

2. First Appeal No.1957 of 2018 has been filed by the husband-original plaintiff challenging only that part of the judgement and order by which, the husband has been directed to pay Rs.6000/- per month to the wife towards her maintenance amount and Rs.4000/- for the maintenance of minor daughter Shreeja.

3. Facts in brief indicate that it was the case of the husband – Dineshbhai Patel that having married the appellant of First Appeal No.1016 of 2018 on 04.02.2006, he found that on one or the other pretext, the appellant-wife would leave the matrimonial home which happened from February 2008 without reasonable cause and therefore, the husband is entitled to a decree of divorce on the ground of desertion. It was his case too that the wife having carried out abortion without his consent, tantamounted to mental and physical cruelty. After examination of witnesses on behalf of the wife and the husband, the Family Court came to the conclusion that the parties had no good relations from the date of separation and from the perusal of the entire testimony of witnesses of both parties, the Trial Court found that the couple was only for some time interested to stay together and therefore it was not possible to resolve the dispute. The marriage appeared to be broken without any possibility of reunion and therefore, the decree of divorce was passed.

4. In the First Appeal No.1016 of 2018, where the wife had challenged the decree of divorce, Ms.Khushbu Vyas learned counsel for the appellant would make the following submissions:

4.1 Ms.Vyas would submit that on the basis of the evidence of the witnesses of the husband and the defendant wife respectively, the reliance placed by the Court on the settlement deed Exh.62 was misconceived. She submitted that compromise deed Exh.62 was seriously disputed by the wife on the ground of fraud. The Trial Court committed an error in not believing the stand of the wife only on the ground that the wife had not filed any FIR pursuant to the stand taken that the settlement deed was obtained by fraud.

4.2 Ms.Vyas would submit that the Trial Court failed to consider the fact that even after the execution of the settlement deed by which the respective parties had decided to withdraw their cases, though the case under the Domestic Violence Act was withdrawn by the appellant-wife as per the condition in the deed, the husband did not carry out such withdrawal. Having not honored the settlement, obviously when a case was made out that in such a settlement the signature of the appellant wife was disputed by her, there was no ground on which the decree of divorce could have been granted.

4.3 Ms.Vyas would further submit that as per Section 13 of the Hindu Marriage Act desertion has to be proved for a continuous period of not less than two years immediately preceding the presentation of the plaint. What is evident from the pleadings in the plaint and which is not even disputed by the husband is that the husband sent a notice on 03.10.2009 for restitution of conjugal rights and a petition for divorce was filed on 10.10.2009 within eight days from the date of the notice. Ms.Vyas would submit that in the petition for divorce filed by the respondent husband, it was an admitted fact that in February 2008, the appellant brother had come to take the wife from