PRASHANT KUMAR MISHRA, J.

Leave granted.

2. The instant appeal is directed against the judgment and order impugned dated 24.06.2021 passed by the High Court of Judicature at Bombay in Family Court Appeal No. 162 of 2019 whereby the High Court, while affirming the order of the Family Court, dismissed the appeal seeking dissolution of marriage by a decree of divorce.

Digitally signed by NITIN TALREJA Date: 2024.01.24 15:22:10 IST Reason:

Signature Not Verified

3. The facts in brief are that the marriage between the appellant and respondent was solemnized on 05.01.2004 as per the rituals of Hindu religion after having spent eight years in courtship. They are Indian citizens by birth. However, they acquired citizenship of Canada for financial gain and were living a normal and happy matrimonial life in Canada. A male child was born from the wedlock on 21.05.2010. In the year 2011, the appellant started experiencing medical problems namely, constant back and shoulder pain as well as skin related problems, especially during summer due to rag weed allergy resulting into sleepless nights and miserable days. During the period of recession in Canada, the appellant lost his job and the couple along with the minor child returned to India on 29.01.2011. The respondent after wilfully staying at her matrimonial home, joined her parental house on 20.02.2011. After some time, when the appellant asked the respondent to resume cohabitation, the respondent did not pay any heed and refused to join the company of the appellant. The respondent was interested in returning to Canada for a better future. The appellant, however, expressed his unwillingness to shift to Canada owing to his health issues. Various attempts were made by the family of the parties to resolve the matrimonial discord between them but to no avail. The respondent left for Canada with her son. Thereafter, the appellant tried to contact the respondent either through e-mail or by other modes requesting her to come and cohabit with him. It was neither responded to nor complied with.

4. The appellant was, therefore, constrained to prefer a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights which remained uncontested on behalf of the respondent though the respondent was duly served. Desperately, the appellant withdrew the petition for restitution of conjugal rights. Since the appellant realized that there would be no hope of any restitution, he filed a divorce petition on the ground of cruelty and desertion.

5. The petition proceeded ex parte as, despite due service, the respondent remained unrepresented. After considering the pleadings and evidence, the learned Family Court dismissed the petition of the appellant, inter alia, observing that no case had been made from the alleged cruelty caused to the appellant by the respondent.

6. Being aggrieved with and dissatisfied by the dismissal of the petition by the learned Family Court, the appellant moved a Family Court Appeal before the High Court. The High Court dismissed the appeal by holding that no case has been made out by the appellant for seeking a decree of divorce on the ground of either cruelty or desertion. Hence, this appeal.

7. Considering the facts and circumstances, a short question arises for our consideration as to whether a decree for divorce can be granted for the reason that the marriage has irretrievably broken down.

8. Notice was issued to the sole respondent/wife on 21.01.2022, which was duly served upon the respondent. The respondent once again did not put in appearance either in- person or through an advocate.

9. We have heard Mr. Dhananjay Bhaskar Ray, learned counsel appearing for the appellant at length and have also perused the pleadings.

10. Mr. Dhananjay would submit that the respondent deserted the appellant about 13 years ago and she refused to cohabit with the appellant. Learned counsel would further submit that the appellant and the respondent have