Prolonged separation without lawful reasons constitutes desertion, justifying the grant of divorce under the Hindu Marriage Act.

JUDGMENT :

(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)

1. The present appeal is preferred under Section 19 of the Family’s Court Act read with Section 96 of the CIVIL PROCEDURE CODE against the judgment and order dated 01.07.2017 in Family Suit No.540 of 2015 passed by the Family Court No.2, Ahmedabad. The original proceedings were in the form of an application under Section 13 (1) of the HINDU MARRIAGE ACT seeking a decree of divorce on the ground of cruelty and desertion by the appellant-husband which came to be rejected by the impugned judgment and order. Against the aforesaid rejection of the application preferred by the husband, present appeal is preferred.

2. Learned advocate for the appellant has at the outset submitted that both the husband and wife are now senior citizen having crossed the age of 62 years plus and having separated since last 38 years. He also submitted that out of the wedlock, one son is borne out who also is now 36 years of age and residing with respondent-wife and he has also started his own family consisting of his own wife and two girl child who are presently college and school going.

2.1 Learned advocate for the appellant has submitted that the appellant has raised a contention that the wife was suffering with Tuberculosis at the time of marriage which she did not disclose and therefore, considering the nature of disease suffered by the wife and not being disclosed to the appellant, amounts to cruelty for which the appellant was entitled a decree of divorce. He also submitted that the respondent on her own started residing separately without there being any valid reason at the hands of the appellant and she had continued to reside separately for more than two years before which the family suit was filed and therefore also he is entitled to decree of divorce on the ground of desertion.

2.2 He submits that the appellant had made sufficient efforts to bring back his wife including the filing of the proceedings under Section 9 of the HINDU MARRIAGE ACT for restitution of his conjugal rights however, inspite of coming back to the matrimonial home, the respondent preferred an application for maintenance and continue to reside separately with her parents.

2.3 Learned advocate for the appellant further submitted that as the appellant was left alone with his aged parents and he himself was employed, he had no option, but to engage someone who take care of his parents and in that effort, he had engaged after a public advertisement one Smitaben. It is with this Smitaben the appellant developed relationship over the period out of his lonely life that he started living with said Smitaben under the live-in-relationship.

2.4 Out of the live-in-relationship, two children have been borne who are still studying and whose responsibilities are squarely on the shoulder of the appellant however, by way of permanent alimony, the appellant is ready and willing to pay an amount of Rs.15 Lakhs lump sum.

2.5 Learned advocate for the appellant further submitted that the appellant has duly complied with the directions of the Court for maintenance of the respondent and had without default since 1990 paid maintenance to the tune of Rs.7,000/- per month. According to learned advocate, till date, total maintenance paid has added upto Rs. 16,25,000/- (Approximately).

2.6 Learned advocate for the appellant has lastly submitted that the error is committed by the