IMPORTANT POINT
Prolonged separation and absence of cohabitation constitute mental cruelty under Section 13(1)(ia) of the Hindu Marriage Act, justifying divorce.

JUDGMENT :

MAULIK J.SHELAT, J.

1. The present appeal is filed under Section 19 of the Family Courts Act, 1984 (hereinafter referred to as “the Act, 1984”) against the Judgement and Decree dated 05.08.2017 passed by the learned Principal Judge, Family Court, Anand in Family Suit No.306 of 2015.

2. The parties are referred to as per their original positions before the Family Court.

Brief Facts of the case

3. The short facts of the case, which are necessary for the adjudication of the present appeal, are as follows:-

3.1 The Plaintiff happens to be the husband of the defendant, whose marriage was solemnized with the defendant on 28.02.2013 at Anand. It is a case of the plaintiff that the defendant was residing in Australia at the time of marriage, so she returned to Australia on 14.03.2023 after their honeymoon.

3.2 It has been further alleged that they were in touch over the phone and internet and in the meantime, plaintiff had started preparing for IELTS examination to get a Visa/permanent residency of Australia.

3.3 It has been further alleged by plaintiff that somewhere in August, 2013, defendant – wife came back to India for sometime but during her short visit, disputes erupted between the spouses on simple issues. The defendant returned to Australia in September, 2013 and then after, she went to London in February, 2014 without informing the plaintiff and after returning India from London, she has not contacted the plaintiff.

3.4 It has been further alleged by the plaintiff that when he tried to contact the defendant at Anand on her return journey from London to India, defendant had pressurized him to obtain permanent residency of Australia at any cost, failing which, she would not live together.

3.5 According to the plaintiff, after June, 2014, they have never lived as husband and wife under one roof. The plaintiff has further alleged that without any reasonable excuse, the defendant – wife has deserted him and noncohabitation between them throughout this period amounts to mental cruelty to him.

3.6 It is the case of the plaintiff that when defendant had completely stopped talking with plaintiff, he had no option but to file divorce petition before Family Court under Section 13(a)(i)(ii) of Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act, 1955”), and thereby he had filed Family Suit No.306 of 2015 against the defendant wife on 30.11.2015.

3.7 The Defendant had appeared in the suit through her power of attorney i.e. her father and denied all the allegations leveled against her. She had come out with a case that the plaintiff had married her with an intention to settle in Australia. Nonetheless, no documentary evidence were submitted by her in support of her case.

3.8 The plaintiff has submitted documentary evidence and so also examined himself at Exh.21. So far as the defendant is concerned, she has never appeared in person before the Family Court either for her oral evidence/ crossexamination or for any conciliation to settle dispute with plaintiff.

3.9 After appreciating the evidence and hearing the parties, the Family Court vide its impugned judgment and decree has dismissed the suit of plaintiff – husband by neither believing that husband is subjected to mental cruelty by the wife nor a case of desertion is made out by husband.

4. Being aggrieved and dissatisfied with the judgment and decree, due to non-granting of the relief in favour of the plaintiff, thereby, not being granted the prayer of dissolution of marriage, the present appeal is filed at the instance of plaintiff to get decree of divorce.

SUBMISSIONS OF THE PLAINTIFF – HUSBAND – APPELLANT

5. Learned advocate appearing for the appellant, Mr. Shashvata U Shukla, has vehemently submitted that the Family Court has erroneously dismissed the suit of the plaintiff, who has suffered a lot by the conduct of the defendant – wife, which is nothing but mental cruelty inflicted upon husband at the instance of wife.

5.1 Learned advocate for the appellant would further submit t