Bombay High Court
Paresh S/O Natwarlal Vyas vs Seema @ Gita W/O Paresh Vyas on 23 January, 2017
Author: Vasanti A. Naik
Bench: Vasanti A. Naik, V. M. Deshpande
1 fca126.14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FAMILY COURT APPEAL NO.126/2014
Paresh s/o Natwarlal Vyas,
aged 40 years, r/o Vyas Building,
New Shukrawari, Nagpur. .....APPELLANT
...V E R S U S...
Seema @ Gira w/o Paresh Vyas,
aged 34 years, R/o Madhukanth
D. Thakakr, Shriram Kripa,
Postal Society, Joshipura,
Near Railway Station, Junagarh,
Gujrat - 362002. ...RESPONDENT
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Shri Apurv De, Advocate for appellant.
Shri B. D. Dave, Advocate for respondent
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CORAM:- SMT. VASANTI A. NAIK AND
V. M. DESHPANDE, JJ.
DATED :- JANUARY 23, 2017
ORAL JUDGMENT (Per : Smt. Vasanti A. Naik, J.)
By this family court appeal, the appellant challenges the judgment of the family court dated 27.11.2009, dismissing the petition filed by the husband for a decree of divorce on the ground of desertion.
Few facts giving rise to the family court appeal are stated thus:
The appellant-husband and the respondent-wife were married at Junagarh in Gujarat on 18.02.2000 according to Gujarati rites and customs. The respondent-wife came to the matrimonial home at Nagpur after the solemnization of marriage and the parties resided together for about 1 ½ months. It is the case of the husband that in ::: Uploaded on - 07/02/2017 ::: Downloaded on - 27/08/2017 14:12:19 :::
2 fca126.14.odt April-2000, the appellant went to Junagarh to bring back the respondent to the matrimonial house but she refused to return on the ground that her father was not well. It is pleaded that the respondent was brought back to Nagpur by the father of the respondent on 25.07.2000. According to the appellant, on 25.02.2001 the mother and elder brother of the respondent came to Nagpur and the 7 th month pregnancy programme of the respondent was celebrated. It is pleaded that the respondent left the matrimonial home with her mother and elder brother on 25.02.2001 for Junagarh, for the delivery. A male child was born on 08.05.2001 at Junagarh. It is pleaded that after hearing the news of the birth of the child, the appellant, his sister Trupti, his sister-in-law Rekha and his niece Shweta, went to Junagarh to meet the respondent and the child. It is pleaded that after a few months, the appellant, his sister and sister-in-law went to Junagarh to bring the respondent to the matrimonial home but the parents of the respondent declined to send her. It is pleaded that the parents of the respondent assured the appellant that they will reach the respondent and the child to the matrimonial home in August-2001. It is pleaded that as per their assurance, the parents of the respondent did not bring the respondent and child to Nagpur. It is pleaded that though father of the appellant wrote a letter to the respondent informing as to when they would be sending the respondent to Nagpur, it was informed to the parents of the appellant that they would do so after the cataract ::: Uploaded on - 07/02/2017 ::: Downloaded on - 27/08/2017 14:12:19 ::: 3 fca126.14.odt operation was performed on the father of the respondent. It is pleaded that by a further communication, the father of the appellant was informed that instead of sending the respondent to Nagpur in August, they would send the respondent to Nagpur after six months. It is pleaded that though the appellant had sent communications under certificate of posting and registered post acknowledgment due on 19.11.2001 and 29.07.2002 respectively asking the respondent to return to the matrimonial home, she failed to reply to the same. It is pleaded that before the Lok Adalat in Junagarh, the respondent refused to return to the matrimonial home. It is pleaded that despite the efforts of the appellant, the respondent refused to join the company of the appellant and hence the appellant was entitled to a decree of divorce on the ground of desertion.
The respondent denied the claim of the appellant and denied that she had deserted him. It is stated by the respondent in the written statement that the atmosphere in the house of the appellant was not proper and hence she was not ready to join the company of the appellant unless he gave an assurance about good behaviour. It is pleaded by the respondent that she was not ready to join the company of the appellant unless he assured that he and his parents would take proper care of the respondent and the child. It is pleaded that since the appellant failed to give any such assurance, the respondent did not accede to the request of the appellant to return to the matrimonial ::: Uploaded on - 07/02/2017 ::: Downloaded on - 27/08/2017 14:12:19 ::: 4 fca126.14.odt home. The respondent admitted in the written statement that the appellant had attended the Lok Adalat at Junagarh but it was disputed that she refused to join the company of the appellant. In the specific pleadings, it was pleaded by the respondent that because of the behaviour of the appellant, the respondent was physically and mentally harassed. It is pleaded that though the respondent was ready to join the company of the appellant if he assured about good behaviour, the appellant did not assure of the same and hence she did not join his company. The respondent further pleaded that she was treated like a jail inmate in the matrimonial home. It is pleaded that if the appellant changed the ways, she was ready to join his company.
On the aforesaid pleadings of the parties, the family court framed the issues and the parties tendered oral and documentary evidence. The appellant examined himself and the respondent examined herself, they did not examine any other witness in support of their respective cases. Certain documents were tendered by the appellant on record to prove his case. On an appreciation of the evidence on record, the family court, by judgment dated 27.11.2009 dismissed the petition filed by the appellant. The appellant has challenged the judgment in this family court appeal.
Shri De, the learned counsel for the appellant submitted that the Family Court committed an error in dismissing the petition filed by the husband for a decree for divorce. It is stated that there is ample ::: Uploaded on - 07/02/2017 ::: Downloaded on - 27/08/2017 14:12:19 ::: 5 fca126.14.odt evidence on record in respect of his claim that the respondent refused to join his company without any just or reasonable excuse. It is submitted that the letters exchanged between the father of the appellant and the father of the respondent clearly show that though the appellant was ready to bring back the respondent to the matrimonial home after delivery, the father of the respondent was not ready to send her to Nagpur. It is submitted that though the respondent has pleaded in the written statement that the appellant and his family members were behaving badly with her, the communications exchanged between the parties did now show so. It is submitted that after the child was born, the appellant and his family members had gone to Junagarh to meet the respondent and the child and despite the sincere efforts on the part of the appellant and his family members to bring back the respondent to the matrimonial home, the respondent declined to return. It is submitted that merely because the respondent was ready to join the company of the appellant during the pendency of the proceedings before the family court, the family court could not have refused to grant a decree for divorce in favour of the appellant, when the appellant had tendered cogent evidence on record to prove that the respondent had deserted the husband for nearly five years without any just or reasonable excuse. It is stated that the respondent had falsely pleaded in the written statement that she was treated badly in the matrimonial home and the case of the respondent in this regard stands falsified by ::: Uploaded on - 07/02/2017 ::: Downloaded on - 27/08/2017 14:12:19 ::: 6 fca126.14.odt the communications exchanged between the relatives of the parties and the cross-examination of the wife. It is stated that material admissions in the cross-examination of the respondent were not considered by the family court while refusing to grant a decree of divorce in favour of the respondent. It is stated that some of the important communications exchanged between the parents of the parties are not considered by the family court and certain other communications that do not throw much light on the issue of desertion are considered.
Shri Dave, the learned counsel for the respondent, supported the judgment of the Family Court. It is stated that the appellant was a drunkard and though he did not physically assault the respondent, he had mentally tortured her. It is submitted that the respondent was not ready to return to the matrimonial home till the appellant gave an assurance that he would mend his ways and he and his family members would behave properly with the respondent. It is submitted that during the pendency of the proceedings before the family court, the respondent was ready to join the company of the appellant and had come to the family court with a suitcase and the family court has, therefore, rightly dismissed the petition filed by the appellant for a decree of divorce on the ground of desertion. The learned counsel sought for the dismissal of the family court appeal.
On hearing the learned counsel for the parties and on a perusal of the record and proceedings it appears that following points ::: Uploaded on - 07/02/2017 ::: Downloaded on - 27/08/2017 14:12:19 ::: 7 fca126.14.odt arise for determination in this Family Court Appeal:-
(i) Whether the appellant proves that the respondent had deserted the appellant without any just or reasonable excuse?
(ii) Whether the appellant is entitled to a decree of divorce on the ground of desertion?
(iii) What order?
It is apparent from the material on record that the parties have not resided together in the matrimonial house even for six months after the solemnization of the marriage in the year 2000. The respondent had gone to her maternal house time and again after marriage and in March-2001 she returned to Junagarh to her maternal home for delivery. After the birth of the male child on 08.05.2001, the respondent had not joined the company of the appellant. The parties are residing separately for past more than 16 years. It would be necessary to consider whether the respondent had deserted the appellant without any just or reasonable excuse as per his case.
Admittedly, the respondent had left the matrimonial home in March- 2001 to join the company of her parents at Junagarh for the delivery. After the delivery of the child, it is an admitted fact that the appellant, his sister, his niece and his sister-in-law had been to Junagarh to meet the respondent and the child. It appears that all was well between the parties till the respondent went to the parental home for the delivery and even thereafter when the appellant and his family members went to ::: Uploaded on - 07/02/2017 ::: Downloaded on - 27/08/2017 14:12:19 ::: 8 fca126.14.odt Junagarh to meet the child. On a reading of the evidence, we find that the parents of the respondent had assured that the respondent would be brought to Nagpur to her matrimonial home in the month of August- 2001. A couple of communications are exchanged between the father of the respondent and the father of the appellant. The father of respondent wrote to the father of the appellant that he should not send anybody else from the family to take back the respondent to the matrimonial house. It is admitted by the respondent that it was communicated by his father that the father and the mother of the appellant should personally come to Junagarh to take the respondent to the matrimonial home. The father of the appellant had communicated to the father of the respondent that since he was 75 years of age and was not fit to come to Junagarh along with his old wife, he would send either of his two sons along with his wife to Junagarh to fetch the respondent and bring her to the matrimonial home. It is stated in the communication that the father of the respondent had initially agreed to send the respondent to the matrimonial home in August-2001 and there appears to be some delay on the part of the family members of the respondent to send back the respondent to the matrimonial home. We find no fault in the conduct of the father of the appellant in writing to the father of the respondent that the old couple would not be able to come to Junagarh to fetch the respondent. The father of the appellant was desirous of sending his elder son along with his wife to Junagarh to ::: Uploaded on - 07/02/2017 ::: Downloaded on - 27/08/2017 14:12:19 ::: 9 fca126.14.odt fetch the respondent. However, it appears that father of the respondent wrote to the father of the appellant that they should not send anybody from their side to fetch his daughter for at least six months after delivery. It is stated in the communication that if his daughter stays in Junagarh for six months, she would be able to look after the child well. The father of the respondent further wrote that since his cataract operation was to be performed, the respondent would not be able to come to Nagpur. It is apparent from the communication that the father of the respondent was not ready to send the respondent to the matrimonial home for more than six moths from the delivery. We do not find anything in the communications that are issued from the side of the respondent to show that the respondent was treated badly in the matrimonial home by the appellant and his family members and that she was not ready to return to the matrimonial home unless the appellant gave an assurance that he would mend his ways and behave well with her. We do not find anything on record to show that the appellant and his family members were behaving badly with the respondent except the pleadings in the written statement of the respondent and the statement in her evidence on affidavit. It would be pertinent to consider the admissions of the respondent in her cross- examination. The respondent admitted in her cross-examination that after birth of the child, the appellant had come to see the child at her parent's place and had resided there. Though the respondent had ::: Uploaded on - 07/02/2017 ::: Downloaded on - 27/08/2017 14:12:19 ::: 10 fca126.14.odt denied in her cross-examination that her father had agreed to send her to Nagpur in August-2001, she admitted that it was mentioned in the communication exchanged between the parties that the appellant was making a programme to fetch the respondent in August-2001. The respondent admitted in her cross-examination that her father had expressed in the communication addressed by him to the father of the appellant that the appellant's father should fetch the respondent after his cataract operation was over. The respondent admitted in her cross- examination that her father had written to the father of the appellant that the programme to fetch her in August-2001 should be postponed. This clearly shows that the appellant and his family members were ready to take back the respondent to the matrimonial home after the birth of the child and had made repeated requests for sending the respondent to the matrimonial home. There is an ample evidence on record to show that the appellant's parents were ready to send some responsible persons from the appellant's family to fetch the respondent so that she should return to the matrimonial home. It is pertinent to note that it is not the case of the respondent or her family members, as could be depicted from the communications exchanged between the parties that the appellant and his family members had treated the respondent with cruelty and it was not possible for her to join the company of the appellant until he changed his ways. This appears to be the stand of the respondent for the first time in her written statement. ::: Uploaded on - 07/02/2017 ::: Downloaded on - 27/08/2017 14:12:19 :::
11 fca126.14.odt Though there is no pleading in the written statement that the appellant used to consume liquor, that he used to come home late night, that he used to quarrel and even assault the respondent, the respondent improved her case in her evidence and stated in her examination in chief that the appellant was a drunkard, he used to come late at night and assault her and that he told her that he had an affair with another lady with whom he wanted to marry. It was not proper on the part of the respondent to state so in her evidence on affidavit since that is not the case of the respondent in her written statement. In the written statement, the respondent has merely stated that she was not ready to join company of the appellant unless he changed his ways by giving an assurance that he and his family members would behaver properly with the respondent. There is nothing in the written statement to show that the appellant always told the respondent that he did not wish to marry her as he had an affair with some lady. The respondent admitted in her cross-examination that she had never complained to anybody about the appellant's habit of consuming liquor. The respondent further admitted in her cross-examination that she cannot tell the name of the lady with whom the appellant had an affair. It is clearly stated in the examination in chief of the appellant that he and his family members were ready to bring back the respondent to the matrimonial home but she refused to return to the home. We do not find any cogent material on record, to show that the appellant had treated the respondent with ::: Uploaded on - 07/02/2017 ::: Downloaded on - 27/08/2017 14:12:19 ::: 12 fca126.14.odt cruelty and, therefore, the respondent had left the company of the appellant. The appellant had waited five years for the respondent to return to the matrimonial home and the proceedings were filed by him in the year 2006. The parties have not resided together even for a single day after they separated in the month of March-2001 when the respondent went to her parental house to give birth to the child. It is clear from a reading of the evidence of the parties that the respondent had refused to join company of the appellant without just or reasonable cause. Firstly, the parents of the respondent tried to delay matter in respect of sending the respondent to her matrimonial home as could be seen from the communication of the father of the respondent and then they did not send the respondent to the matrimonial home. The letters served by the appellant on the respondent are left unanswered. Merely because the respondent was ready to join the company of the appellant during the pendency of the proceedings, it cannot be said that the respondent had not deserted the appellant. The offer to join the company of the spouse during the pendency of the proceeding by itself cannot frustrate the case of desertion. It is apparent from the documentary evidence tendered by the parties that the respondent had deserted the appellant without any just or reasonable excuse.
Hence, for the reasons aforesaid, the family court appeal is allowed. The judgment of the family court is set aside. The petition filed by the appellant is allowed. The marriage solemnized between the ::: Uploaded on - 07/02/2017 ::: Downloaded on - 27/08/2017 14:12:19 ::: 13 fca126.14.odt parties on 15.02.2000 stands dissolved by a decree of divorce on the ground of desertion. It is needless to mention that the respondent would be entitled to file appropriate proceeding against the appellant for grant of permanent alimony, if so advised. In the circumstance of the case, there shall be no order as to costs.
(V. M. Deshpande, J.) (Smt. Vasanti A. Naik, J.)
kahale
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