Gujarat High Court
Patel Manjulaben Mahendrabhai vs Patel Mahendrabhai Kanjibhai Having ... on 25 August, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
C/FA/490/2022 ORDER DATED: 25/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 490 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 490 of 2022
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PATEL MANJULABEN MAHENDRABHAI
Versus
PATEL MAHENDRABHAI KANJIBHAI HAVING DIED
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Appearance:
MR DK CHAUDHARI(5361) for the Appellant(s) No. 1
for the Defendant(s) No. 1,1.1
MS RUCHABEN A GAMI(11652) for the Defendant(s) No. 1.2,1.3
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 25/08/2022
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1.0. It is one of these appeals where unfortunately the proceedings have continued even after the death of husband who is now represented by two of his heirs, who are the children of the appellant - original opponent, who are strongly and fervently resisting the dissolution of divorce as that has been done while the father himself was alive.
2.0. This appeal arises from the judgment and decree passed by the Principal Judge, Family Court, Mehsana in Family Suit No.162 of 2016 dated 30.08.2019.
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C/FA/490/2022 ORDER DATED: 25/08/2022 3.0 The brief facts leading to the present appeal are as follows:
3.1. The marriage of the parties appellant - Manjulaben and deceased Mahendrabhai took place 34 years back at Unjha. They were legally wedded husband and wife and three children were begotten out of the said wedlock. Presently eldest daughter Jyotsana is 36 years old, son Brijesh is 33 years old and the youngest daughter Krupa is 31 years old. They are all married settled in their respective lives.
3.2. The deceased husband was working with the Municipal Corporation, Ahmedabad in the year 2001. The quarrel between the parties had led them to separate and the eldest daughter continued to be with the mother whereas the two children were get up by the father.
3.3. A complaint came to be filed with Chansama Police Station and Unjha Police Station in the year 2001 and till the date of passing of the decree of divorce by the Family Court, these criminal proceedings had continued.
3.4. It is a matter on record that the appellant had received an amount of maintenance from the husband and intermittently Page 2 of 22 Downloaded on : Sun Dec 25 00:17:21 IST 2022 C/FA/490/2022 ORDER DATED: 25/08/2022 she needed to also approach the Court for getting this amount of maintenance. The daughter Jyotsana, who was with her, studied upto M.A, B.Ed, her marriage also had been performed which unfortunately ran into the rough weather and all throughout there was no separate financial help on the part of the father either for the maintenance of the child or for the wedding of the daughter. Be that as it may, the trial Court has recorded the following issues and answered it this wise:
"1. Whether the petitioner proves that his marriage with opponent was solemnized before 34 years from the date of filing this application i.e. 24.11.2016, according to Hindu Rights and Rituals and petitioner is legally wedded husband of the opponent?
2. Whether the petitioner proves that opponent has caused cruelty to the petitioner?
3. Whether the petitioner proves that, the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of this petition?
4. Whether the petitioner is entitled to get relief as prayed?
5. Whether opponents proves that petitioner has caused mental and Physical cruelty to the opponent, and deserted her and her daughter Jyotsana without any reasonable cause?
6. What order and Decree?
1. In affirmative.
2. In negative.
3. In affirmative.
4. In affirmative.
5. In negative.
6. As per final order."Page 3 of 22 Downloaded on : Sun Dec 25 00:17:21 IST 2022
C/FA/490/2022 ORDER DATED: 25/08/2022 3.5. So far as issue nos.1 to 3 concerned, they have been answered as follows.
1. In affirmative.
2. In negative.
3. In affirmative.
So far as issue no.1 is concerned, the factum of their marriage and the appellant being a wedded wife of deceased is not in dispute. Whereas issue nos. 3, 4 and 5 being interconnected and inseparable, the Court has taken into consideration the depositions of the parties to hold in favour of the deceased husband that the appellant has deserted him continuously for a period of two years prior to his preferring the Family Suit No. 162 of 2016. While doing, it has relied on the depositions of the parties and also heavily relied on the decision of the Hon'ble Apex Court rendered in the case of Malathi Ravi.
MD vs. B. V. Ravi. M. D reported in (2014) 7 SCC 640, where the Court has said that;
"Desertion for the purpose of seeking divorce means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is Page 4 of 22 Downloaded on : Sun Dec 25 00:17:21 IST 2022 C/FA/490/2022 ORDER DATED: 25/08/2022 not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati1 held that if a spouse abandons the other in a state of temporary passion, for example, anger [pic]or disgust without intending permanently to cease cohabitation, it will not amount to desertion. In the said case, reference was also made to Lachman Utamchand Kirpalani's case wherein it has been held that desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the Page 5 of 22 Downloaded on : Sun Dec 25 00:17:21 IST 2022 C/FA/490/2022 ORDER DATED: 25/08/2022 deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation".
3.6. The Court also has taken a note of the provisions of the Protection of Women from Domestic Violence Act, 2005 to hold that even if the decree of divorce is granted, she would be entitled to her share in the properties of her husband. The factum of separation having been proved according to Court, it chose to grant the decree in favour of the husband. The Family Court also has taken note of the complaint filed under Section 498 A of the Indian Penal Code and also the factum of pendency of these proceedings. It took note of the fact that mere filing of such complaint would not prove cruelty and making allegations against the husband and his brother also would not prove anything. Such vague allegation should not be believed and the same is required to be proved by giving the cogent evidence of Page 6 of 22 Downloaded on : Sun Dec 25 00:17:21 IST 2022 C/FA/490/2022 ORDER DATED: 25/08/2022 cruelty being purported.
4.0. We have extensively heard Mr. D.K. Chaudhary, learned advocate for the appellant and Ms. Gami, learned advocate for the opponent. Several attempts were made by both the parties to settle the disputes amicably, which have not resulted into any fruitful gains. By the Coordinate Bench, the matter had been taken up in Chamber by calling the parties noticing the fact that the husband has passed away and now only the children who are required to decide the fate of this matter. Resistance was enormous and that we could also notice today also before hearing finally on merits, the learned advocates had been proposed once again to explore the possibility of amicable settlement. Ms. Gami fairly as an officer of the Court submitted to this Court that although she would have much liked that to have happened, her instructions are very clear that the matter requires to be proceeded and also requires adjudication. She was also given other instructions with regard to the conduct of the maternal uncle about which we may not like to opine on anything in the absence of any evidence merely on piece of paper which has no value in the eyes of law.
4.1. This preface is necessary for the Court to give in the point Page 7 of 22 Downloaded on : Sun Dec 25 00:17:21 IST 2022 C/FA/490/2022 ORDER DATED: 25/08/2022 that distress, disbelief and the anger which both the parties have nourished against each other not only the husband and wife have restricted to themselves but all these also have percolated in the next generation which has continued and carried these negativities as legacy unfortunately.
5.0. Reverting to the evidence on record which has led the Family Court to decide this matter in favour of the respondent, at the outset, it is required to be noted that this being a suit for divorce by the husband, the onus is upon him to prove the case with the preponderance of probabilities being the civil matter. He on the ground of desertion apprised the Court and has sought decree of divorce.
5.1. The depositions of his reveal that there are allegations of appellant being obstinate and not of a mixing nature. She was not adopting the rituals of the family nor was she of any accommodative nature. He agreed that after the marriage, with three children when he was serving in the Municipal Corporation in the year 2001, because of the children's education, there was some dispute and the brother of the respondent was called and at his instigation led the wife to leave home. She had left 17 Page 8 of 22 Downloaded on : Sun Dec 25 00:17:21 IST 2022 C/FA/490/2022 ORDER DATED: 25/08/2022 years before with the eldest daughter and many efforts made by the family had failed to bring her back.
5.2. Her FIR for the offence under Section 498 A of Indian Penal Code at Chanasma as well as Unjha was in relation to such incident are matter of record. The complaint being Criminal Case No. 676 of 2001 is also pending before the Unjha Court and it is posted on evidence. He continued to pay Rs.4200/- amount and according to his version she had ruined his life and therefore, he wanted peace in his life. Also has further made a grievance that she would talk to the advocate but not with the husband. She continued to live at Mehsana if she was ready to come to Ahmedabad and stay, he would not mind. However, in the very breath he had said that for the past 16 years, he had not lived with her and they have no relation as husband and wife, it is virtually impossible for him to live with her and therefore, he has moved this petition.
6.0. In cross examination, he denied of perpetrating any cruelty. With regard to the brother of hers having instigated and beaten him up, he agreed that he had never filed any complaint before the Police. He has also never given any notice to her Page 9 of 22 Downloaded on : Sun Dec 25 00:17:21 IST 2022 C/FA/490/2022 ORDER DATED: 25/08/2022 calling her back. He also never asked for the custody of Jyotsana in all these years. The amount of Rs.4200/- has been paid after the Court passed an order. He agreed that one complaint under the Domestic Violence Act was also initiated by the wife.
In the cross examination, he agreed that neither for the studies nor for maintenance nor for the marriage of the eldest daughter, he has paid any amount. Whereas other two children who were with him namely Brijesh and Krupa, they both are married and neither elder daughter nor opponent had been at any point of time called by him even during the marriage. The amount he has received in post retirement period, he has not shared anything with even the eldest daughter. 7.0. The appellant herein also gave her deposition saying that she had been driven out of the home 18 years back and she continued to live at her parental home with the eldest daughter. The daughter though studied, she never got any job and her marriage was also performed with the help of the brother. She made grievance that maintenance was never paid in time and she needed to move many applications for the same and she was also not given any amount out of his retiral benefits. In the cross examination, she agreed that the case at Unjha under Section Page 10 of 22 Downloaded on : Sun Dec 25 00:17:21 IST 2022 C/FA/490/2022 ORDER DATED: 25/08/2022 498 A of the IPC is pending. She also refused the suggestion that there was any attempt made on the part of the deceased husband to take her back. She agreed that from 2001 they both are separated and they never had lived as husband and wife. She also said that because of that she is not ready to now join as the wife.
8.0. This one sentence in the cross examination appears to have been overemphasized by the Family Court. What can be noticed from the deposition of the both the husband and wife is that the desertion admittedly is 18 years before the filing of the petition. They never lived as spouses in all these years and the criminal complaint also has not been over and at two places, she filed the criminal complaint and at Unjha her complaint under Section 498 A has continued. There are no details with regard to the complaint on the Domestic Violence Act, however the husband has specifically deposed about the pendency of such complaint. The maintenance amount had been given by the Court noticing all aspects and that has never been stopped. 9.0. One of the primary requirements is that she has deserted without any reason. The order of maintenance under Section Page 11 of 22 Downloaded on : Sun Dec 25 00:17:21 IST 2022 C/FA/490/2022 ORDER DATED: 25/08/2022 125 under Chapter IX of the Criminal Procedure Code and under Section 125 is that any person having sufficient means neglects or refuses to maintain who unable to maintain herself. Sub- section (4) of Section 125 provides that no wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of the proceeding, as the case may be from her husband under this section if she is living in adultery, or if, without any sufficient reasons, she refuses to live with her husband, or if they are living separately by mutual consent. Sub-section (5) of Section 125 also provides that on proof that the wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the magistrate shall cancel the order. It is in particular required to be noted that for all these years she continued to receive this maintenance for not having any sufficient means and husband having the sufficient means and this amount also had been paid by virtue of the Court's directions time and again. Had it been a case of her having refused to join the husband without any sufficient cause, nothing prevented the husband also to move the Court for canceling the order of maintenance, as provided under sub- Page 12 of 22 Downloaded on : Sun Dec 25 00:17:21 IST 2022
C/FA/490/2022 ORDER DATED: 25/08/2022 section (4) and sub-section (5) of Section 125.
10. It is also worthwhile to note at this stage that Section 13, which provides for the divorce under the Hindu Marriage Act states that any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuance period of not less than two years immediately preceding the presentation of the petition. It would be appropriate to reproduce Section 13 at this stage.
"Section 13:. Divorce: (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party--
[(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
(ii) has ceased to be a Hindu by conversion to another religion; or [(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation.--In this clause,--
(a) the expression mental disorder means mental illness, arrested or incomplete development of mind, psychopathic Page 13 of 22 Downloaded on : Sun Dec 25 00:17:21 IST 2022 C/FA/490/2022 ORDER DATED: 25/08/2022 disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression psychopathic disorder means a persistent disorder or disability of mind (whether or not including sub normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;
[Explanation. In this sub-section, the expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. [(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,--
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
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C/FA/490/2022 ORDER DATED: 25/08/2022 Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or[bestiality; or] [(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. Explanation. This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976). 13A. Alternate relief in divorce proceedings. In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses
(ii), (vi) and (vii) of sub-section (1)of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation."
11. One of the grounds for grant of decree of divorce is desertion of the petitioner for a continued period of not less than two years by the person, against whom, such decree is being sought, immediately preceding the presentation of the proceedings. This is the reason for the Family Court to allow the same.
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C/FA/490/2022 ORDER DATED: 25/08/2022 It would be apt to refer to the decision of the Hon'ble Supreme Court in the case of Malathi Ravi (supra).
"18. To appreciate the rivalised submissions raised at the Bar, we have carefully perused the petition and the evidence adduced by the parties and the judgment of the Family Court and that of the High Court. The plea that was raised for grant of divorce was under Section 13(1)(ib) of the Act. It provides for grant of divorce on the ground of desertion for a continuous period of not less than two year immediately preceding the presentation of the petition. The aforesaid provision stipulates that a husband or wife would be entitled to a dissolution of marriage by decree of divorce if the other party has deserted the party seeking the divorce for a continuous period of not less than two years immediately preceding the presentation of the petition. Desertion, as a ground for divorce, was inserted to Section 13 by Act 68/1976. Prior to the amendment it was only a ground for judicial separation.
19. Dealing with the concept of desertion, this Court in Savitri Pandey v. Prem Chandra Pandey[5] has ruled thus:-
8. "Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children.
Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Page 16 of 22 Downloaded on : Sun Dec 25 00:17:21 IST 2022 C/FA/490/2022 ORDER DATED: 25/08/2022 Jaisinghbai Shah v. Prabhavati1 held that if a spouse abandons the other in a state of temporary passion, for example, anger [pic]or disgust without intending permanently to cease cohabitation, it will not amount to desertion.
20. In the said case, reference was also made to Lachman Utamchand Kirpalani's case wherein it has been held that desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.
21.In the case at hand, the Family Court, on the basis of the evidence brought on record, has recorded a finding that there was no desertion for a continuous period of two years. The High Court has reversed it by emphasizing on certain aspects of conduct. Analysing the evidence, we are of the considered opinion that it is not established that the appellant- wife had deserted the husband for a continuous period of not less than two years immediately preceding the presentation of the petition. It is because the petition was presented in the year 2001 and during the cross- examination of the husband it has been admitted by him that he had gone to Gulbarga in May, 1999 for two days. The Family Court, on the basis of material brought on record, has opined that there is no sufficient evidence to come to a definite conclusion that the wife deserted him with intention to bring the matrimonial relationship to an end and further the period of two years was not completed. The High Court, as it seems to us, has not dealt with this aspect in an appropriate manner and opined that the wife had no intention to lead a normal married life with the husband. Therefore, the allegation of desertion, as enshrined under Section 13(1)(ib) has not been established. The finding on Page 17 of 22 Downloaded on : Sun Dec 25 00:17:21 IST 2022 C/FA/490/2022 ORDER DATED: 25/08/2022 that score as recorded by the learned Principal Judge, Family Court, deserves to be affirmed and we so do.
22. Presently to the factual matrix in entirety and the subsequent events. We are absolutely conscious that the relief of dissolution of marriage was sought on the ground of desertion. The submission of the learned counsel for the appellant is that neither subsequent events nor the plea of cruelty could have been considered. There is no cavil over the fact that the petition was filed under Section 13(1)(ib). However, on a perusal of the petition it transpires that there are assertions of ill-treatment, mental agony and torture suffered by the husband."
12. It is quite clear from this decision that relying on the decision in the case of Savitri Pandey vs. Prem Chandra Pandey reported in (2002) 2 SCC 73, the Court has held that desertion for the purpose of seeking divorce under the Act means the intentional permanent forsaking and abandonment of one spouse by the other without other's consent and without reasonable cause. It is construed as a total repudiation of the obligations of marriage. It is not the withdrawal from a place but from a state of things. Withdrawing from the matrimonial obligations not permitting or allowing and facilitating the cohabitation between the parties. The Apex Court says that it is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. In the matter before the Hon'ble Apex Court, the Family Court on the basis of material brought on record had Page 18 of 22 Downloaded on : Sun Dec 25 00:17:21 IST 2022 C/FA/490/2022 ORDER DATED: 25/08/2022 opined that there was no sufficient evidence to come to a definite conclusion that the wife deserted the husband with an intention to bring the matrimonial relationship to an end. However, the High Court opined that the wife had no intention to lead a normal married life with the husband and therefore, the allegation of desertion, as enshrined under Section 13(1)(i-b), has not been established. It was on the strength of factual matrix when it is appreciated in its entirety, the Court so held. It was also argued before the Court that when dissolution of the marriage was sought on the ground of desertion alone, the issue of mental cruelty can neither be raised nor can be addressed too. The Court however for doing the complete justice to the parties and not leaving the battle open once again after 13 years of litigation, exercising the powers under Article 142, had permitted the raising of the ground of cruelty.
13. Here, it is only aspect of desertion which will need to be regarded on the basis of facts which have been presented before this Court. Intend to consider that the Family Suit for divorce had been instituted in the year 2016. This had been happened after 15 years of separation. As is emerging from the record from the year 2001 that the husband and wife are not living together Page 19 of 22 Downloaded on : Sun Dec 25 00:17:21 IST 2022 C/FA/490/2022 ORDER DATED: 25/08/2022 and they have never even under same roof lived for a day. The cause of this separation according to the spouses, was a dispute with regard to children's studies, which led the parties to separate. The version of the late husband was that she had called her brother and beaten him out, whereas according to the wife, she was driven out her from matrimonial home and complaint to that effect under Section 498- A of the Indian Penal Code of Unjha Court was still pending, at the time of preferring this petition and even thereafter at the time of passing of the decree by the Court. It is also admitted by late husband that he never complained of any kind of cruelty nor any beating by his brother in law, when this incident took place. It is also admitted that she left home because of this incident with the eldest daughter, who is never called back nor asked for her custody nor had at any point of time he as a father bothered for her education, higher studies, basic education and marriage. She does not have permanent job even today and her marriage after ran into the rough weather and she is doing the tuition and earning for herself and her mother. There does not appear to be a single notice indicating that he had called her back. All aspects of attempts of restitution voiced are oral. The element of desertion for the purpose of the divorce would mean a Page 20 of 22 Downloaded on : Sun Dec 25 00:17:21 IST 2022 C/FA/490/2022 ORDER DATED: 25/08/2022 permanent abandonment on forsaking by his wife without others' consent and without reasonable cause. Even assuming that this was a long period for the grant of decree of divorce on the ground of desertion, it can be surely held that this certainly was not the correct interpretation of evidence adduced and the law on the subejct made by the Court on the basis of one line that the appellant mentioned in the cross examnation of not desirous of joining. Evidence would need to be appreciated holistically and not by peacemeal picking up the words herein and there.We, therefore, of the firm opinion that this decree of divorce passed by the Family Court deserves to be quashed and set aside. This, in essence, will not have any value as husband has already passed away. However, this may give her some succor because she would be entitled to the family pension from the Municipal Corporation. It is admitted by Ms. Gami, learned advocate, on instructions, that the family pension, one of the children is entitled to and particularly, it is urged by learned advocate Mr. Chaudhary that wife is not interested in the property of her husband. The Family Court of-course has given her the rights to agitate separately, if she is entitled to have share in the property of the husband. We do not intend to comment upon the same nor restrain her from so doing if she Page 21 of 22 Downloaded on : Sun Dec 25 00:17:21 IST 2022 C/FA/490/2022 ORDER DATED: 25/08/2022 chooses to separate.
14. In view of the above and for the reasons stated above, present appeal succeeds and impugned judgment and decree passed by the Family Court, Mehsana dated 30.08.2019 in Family Suit No.162 of 2016 is hereby quashed and set aside. Appeal is allowed to the aforesaid extent. In view of disposal of the appeal, Civil Application stands disposed of accordingly.
(SONIA GOKANI, J) (NISHA M. THAKORE,J) KAUSHIK J. RATHOD Page 22 of 22 Downloaded on : Sun Dec 25 00:17:21 IST 2022