IMPORTANT POINT
Long separation and absence of cohabitation can constitute cruelty under Section 13(1)(ia) of the Hindu Marriage Act, warranting a decree of divorce.

JUDGMENT :

MAULIK J.SHELAT, J.

1. A disgruntled wife, who failed to secure divorce, has preferred the present appeal under Section 19 of the Family Courts Act, 1984 (hereinafter referred to as “the Act, 1984”) against the Judgement and Decree dated 30.04.2018 passed by the learned Principal Judge, Family Court, Palanpur in Family Suit No. 7 of 2017. Her suit for seeking divorce is dismissed. The Appellant is original plaintiff-wife and Respondent is original defendant-husband. For the sake of convenience, the parties are referred to as per their original positions before the Family Court.

2. Admit, learned Advocate Mr. A.M. Parekh waives service of notice of admission of appeal. Truely, ordinarily this Court, in its appellate jurisdiction, before finally adjudicating any first appeal, would like to call for the record and proceedings, but having been supplied necessary documentary evidence and pleadings by the parties as well as considering the request made by the learned advocates of the respective parties, especially, the defendant – husband, who was present in the Court identified by learned Advocate Mr. A.M. Parekh, which was duly recorded in the order dated 30.10.2024 passed by this Court while reserving the order, whereby both parties have tendered a compromise purshis and requested the Court to modify the impugned judgment and decree, then this Court would like to finally adjudicate the present appeal without calling for the record and proceedings.

3. The copy of compromise purshis duly signed by the parties and their respective advocates appears to have been notarized on 23.10.2024 is taken on record.

Brief Facts of the case

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

4.1 The marriage of the plaintiff – wife was solemnized with the defendant – husband on 01.03.2009, and out of the said wedlock, they were blessed with a boy, namely, “Vidhan” on 31.10.2012.

4.2 It is the case of the plaintiff that following birth of “Vidhan”, differences arose between the couple which seriously affected her matrimonial life. It is further stated that the defendant had a habit of betting on cricket matches, thereby creating a huge debt. According to the plaintiff, her husband was not taking care of either the plaintiff or her son instead asking for money from her to get rid of his debt. Eventually, the defendant and his family members had started inflicting cruelty upon the plaintiff, which ultimately led to her decision to leave her matrimonial home somewhere around April, 2013. Since then, the couple are residing separately and thereafter have never cohabited.

4.3 It is further stated by the plaintiff that due to the intervention of elders, a mature decision was taken by the couple to happily depart by executing mutual/consent deed of divorce, which according to the parties is permissible in their custom. The mutual deed of divorce appears to have been executed between the parties/couple on 10.04.2014, which was duly witnessed and notarized.

4.4 It is the case of the plaintiff that as per the above preferred mutual deed of divorce, the parties have been residing separately since last one year before the date of execution of the mutual consent deed. Since then plaintiff-wife is residing with her parents at Palanpur, whereas the defendant-husband is living at Ahmedabad. It was observed in the divorce deed that there is no possibility of reunion as the differences and ill-will between the parties are not going to be resolved amicably by any means and then it was felt that they should happily depart in the best interest of their son.

4.5 Therefore, in light of the aforementioned facts and circumstances and based on the strength of the mutual deed of divorce, the plaintiff - wife filed Family Suit no. 7 of 2017 seeking divorce from the defendant - husband under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the 1955 Act”). The said Family Suit got amended by f