Gujarat High Court
Shilpaben Ashishkumar Bhatt vs Ashishkumar Dilipbhai Bhatt on 4 May, 2017
Bench: Harsha Devani, A.S. Supehia
C/FA/811/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO.811 of 2012
With
CIVIL APPLICATION NO. 4518 of 2017
In FIRST APPEAL NO. 811 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI Sd/
and
HONOURABLE MR.JUSTICE A.S. SUPEHIASd/
===================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of NO India or any order made thereunder ?
=================================================== SHILPABEN ASHISHKUMAR BHATT....Appellant(s) Versus ASHISHKUMAR DILIPBHAI BHATT....Defendant(s) =================================================== Appearance:
MR AMRISH K PANDYA, ADVOCATE for Appellant(s) No. 1 MR ASHIT J VYAS, ADVOCATE for Appellant(s) No. 1 MR HRIDAY BUCH, ADVOCATE for the Defendant(s) No. 1 =================================================== CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI and HONOURABLE MR.JUSTICE A.S. SUPEHIA Date : 04/05/2017 CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE A.S. SUPEHIA) Page 1 of 11 HC-NIC Page 1 of 11 Created On Tue Aug 15 15:02:51 IST 2017 C/FA/811/2012 CAV JUDGMENT (1) The applicanthusband has filed Civil Application No.4518 of 2017 in the main first appeal seeking a relief to grant decree of divorce to the applicanthusband under Section 13(1)(i), (ia) and (ib) of the Hindu Marriage Act, 1955 ('the Act' for short). The first appeal is filed by the appellantwife challenging the judgement and order dated 30.01.2012, passed by Family Court, Ahmedabad, wherein and whereby the petition filed by the petitioner, the appellant herein, for dissolution of marriage was dismissed, which is under challenge in the present first appeal.
(2) By order dated 20.03.2012 this Court admitted the aforesaid first appeal.
(3) The brief facts culled out from the record of the appeal are that:
3.1) The marriage between the parties was solemnized on 03.12.1995 at Vadodara according to Hindu rites and rituals and after marriage, they lived together for some time at Ahmedabad and from the wedlock, two children, namely, Chinmay and Viha were born. The allegations are that the Page 2 of 11 HC-NIC Page 2 of 11 Created On Tue Aug 15 15:02:51 IST 2017 C/FA/811/2012 CAV JUDGMENT appellantwife was mentally tortured by the respondenthusband for some or other reasons from 1996 to 2009. The appellant was also physically attacked and main reason for it was dowry and, therefore, on 03.01.2009, the appellant left the house of the respondent at Ahmedabad and started residing at Vadodara along with the children.
3.2) The appellant also lodged an F.I.R. for the offences punishable under Sections 498A, 323, 506(2) of the Indian Penal Code, 1860 and Section 7 of the Dowry Prohibition Act at Karelibaug Police Station, Vadodara, which was subsequently transferred to Satellite Police Station, Vadodara, on 10.01.2009. It is alleged that the cause behind the cruel behaviour of the respondenthusband was the illadvice of his elder brotherMehul and his wifeYogini.
3.3) On 19.03.2009 the appellant returned to Ahmedabad at her residence and found that the flat, which is owned and purchased by her out of her own resources and for which she has also obtained loan from the bank, has been in illegal occupation of the respondent's cousin sister's daughter and soninlaw and, therefore, another F.I.R.Page 3 of 11
HC-NIC Page 3 of 11 Created On Tue Aug 15 15:02:51 IST 2017 C/FA/811/2012 CAV JUDGMENT was lodged by the appellant. Ultimately, the appellant filed the divorce petition being Family Suit No.601 of 2009 before Family Court at Ahmedabad under Section 13A of the Act, for dissolution of the marriage on the ground of cruelty meted out by the respondenthusband to the appellantwife.
3.4) Upon service of the notice of the aforesaid petition, the respondenthusband appeared and filed a detailed reply/written statement below Exh.10 wherein the allegations of cruelty have been denied. It is the case of the respondenthusband that the appellant has voluntarily deserted and pressurized him to give consent for divorce. It is submitted that the appellant forcibly took the possession of a threebed room flat situated at Ahmedabad. After denying all the averments made and contentions raised by the appellant in the aforesaid petition, the respondent narrated the details of the misdeeds and cruelty meted out by the appellant to the respondenthusband and the illicit relations with his cousin. Ultimately, in the reply/written statement the respondent prayed that considering the facts of the case, the petition of the appellant may be dismissed.
Page 4 of 11HC-NIC Page 4 of 11 Created On Tue Aug 15 15:02:51 IST 2017 C/FA/811/2012 CAV JUDGMENT 3.5) After considering the pleadings of the parties, Family Court framed the issues below Exh.16. Thereafter both the parties led their evidence. The evidence of the respondent is recorded below Exh.20 wherein she stated that as the respondent used to give mental torture and physical cruelty, she started residing separately w.e.f. 03.01.2009. She has further alleged that the respondent is impotent. In the cross examination the appellant admitted her illicit relation with Rashmin (cousin brother of the respondent) and has admitted that children born out of the wedlock are not born due to conjugal relation with the respondenthusband. She admitted lodging of two FIRs and other proceedings initiated by her against the respondent and his family members. The appellant has also admitted that a flat at Ahmedabad has been given on rent and she is earning rent of Rs.27,000/ per month. The appellant has also stated that she is not willing to go and reside with the respondent.
3.6) The evidence of the respondent has been recorded below Exh.43. He has denied the averments made and the allegations raised on behalf of the appellant. The respondent has Page 5 of 11 HC-NIC Page 5 of 11 Created On Tue Aug 15 15:02:51 IST 2017 C/FA/811/2012 CAV JUDGMENT stated about adulterous relation between the appellantwife and his cousin brother Rashmin and because of the said relation, the appellant used to threaten the respondent to commit suicide and that the appellant also misbehaved with the respondent and his family members. It is alleged that false criminal cases are foisted and the possession of the flat has been grabbed. Ultimately, after hearing the parties, the Family Court dismissed the petition filed by the appellantwife on 30.01.2012.
3.7) During pendency of the appeal, the appellant has permanently shifted to United States on 16.07.2013 along with the children and thereafter she has never visited India. Several other civil and criminal litigations have been filed by the appellantwife in different courts.
3.8) Learned Advocate, Mr.Hriday Buch has submitted that in view of the aforesaid facts, the respondenthusband has filed the aforesaid civil application in the main first appeal for seeking divorce under the provision of section 23A of the Act on the Page 6 of 11 HC-NIC Page 6 of 11 Created On Tue Aug 15 15:02:51 IST 2017 C/FA/811/2012 CAV JUDGMENT ground that the appellant wife has deserted and has treated the respondent with cruelty. Learned Advocate, Mr.Hriday Buch appearing on behalf of the applicanthusband has stated that the false prosecution initiated against the respondent and his family members has resulted into clean acquittal. He has also submitted that the admission of the appellantwife about the illicit relation with cousin brother of the respondent establishes that she has lived in adultery. Moreover, since the appellant has voluntarily left the house of the respondenthusband and deserted him since 2009 and has also permanently shifted to U.S.A w.e.f. 16.07.2013, he is entitled to divorce under sections 13(1)(i) and 13(1) (ib) of the Act. He has placed reliance on the judgement rendered by the Apex Court in the case of Radha vs Mohbinder Kumar reported in 1998 (8) S.C.C. 530.
3.9) Learned Advocate Mr.Amrish K Pandya appearing for the Appellantwife has submitted, on instructions from his client, that she has no intention or desire to return to India. However, he has assailed the judgement and order dated 22.07.2015 passed by the Principal Judge, Family Court, Page 7 of 11 HC-NIC Page 7 of 11 Created On Tue Aug 15 15:02:51 IST 2017 C/FA/811/2012 CAV JUDGMENT Ahmedabad, in Family Suit No.601 of 2009 on the ground stated in the present appeal.
(4) Heard learned counsel for the respective parties at length and perused the record of the case.
(5) It is evident from the aforesaid facts that both the Appellantwife and applicant husband have reached the point of no return and the intention to cohabit is non existent. The undisputed fact remains that the appellantwife has parted from her husband in the year 2009 and had started living separately with her children. She has also permanently settled in U.S.A since 2013. Under the circumstances it can be said that the marriage between the parties has irretrievably broken down. The applicant husband is acquitted in the criminal case initiated by her wife under section.498A of the I.P.C. The applicant has filed the Civil application seeking decree of divorce under Section 23A of the Act, which reads as under:
"SECTION 23A : Relief for respondent in divorce and other proceedings :
In any proceeding for divorce or judicial separation or restitution of conjugal rights, Page 8 of 11 HC-NIC Page 8 of 11 Created On Tue Aug 15 15:02:51 IST 2017 C/FA/811/2012 CAV JUDGMENT the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counterclaim for any relief under this Act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground."
(6) The aforesaid section enables the respondent to seek relief under the Hindu Marriage Act, 1955 if adultery, cruelty or desertion is proved. Thus, in the peculiar facts and circumstances of the case, we are of the considered opinion that the husband respondent in appeal is entitled to relief under section 23A of the Act on the ground of desertion as it is evident that the wife has left him since 2009 and has settled in U.S.A permanently since 2013 with her children. We have also perused the judgement dated 22.7.2015 passed by the Chief Judicial Magistrate, Ahmedabad in Criminal Case No.11860 of 2009, which reveals that the husband and his family members are acquitted on merits. We refrain from expressing any opinion on the circumstances under which the appellant had to live an adulterous life. Simultaneously, the version of the husband Page 9 of 11 HC-NIC Page 9 of 11 Created On Tue Aug 15 15:02:51 IST 2017 C/FA/811/2012 CAV JUDGMENT before the Trial Court that despite having the knowledge of adultery on the part of his wife, he continued with his marital life with a hope that she will improve by passage of time, does not inspire confidence. However, the facts remain that the appellantwife was unable to prove the cruelty on the part of the husband and it is an admitted fact that the two children were born as a result of relationship with the cousin brother of the respondenthusband. Thus, insofar as First Appeal No.811 of 2012 preferred by the appellantwife, while disagreeing with the reasoning adopted by the Principal Judge, Family Court, Ahmedabad, we agree with the final outcome of Family Suit No.601 of 2009, viz., that the wife has failed to establish cruelty on the part of the respondent-husband. Consequently, First Appeal No.811 of 2012 is hereby dismissed.
(7) In wake of the multifaceted circumstances, the husbandapplicant is entitled to the decree of divorce on the ground stated in section 13(1)(ib) of the Act. Civil Application No.4518 of 2017 filed by the husband is allowed. The marriage between the Page 10 of 11 HC-NIC Page 10 of 11 Created On Tue Aug 15 15:02:51 IST 2017 C/FA/811/2012 CAV JUDGMENT applicant-husband and the respondent-wife solemnized on 03.12.1995 at Vadodara is hereby dissolved by a decree of divorce.
Sd/ [HARSHA DEVANI, J] Sd/ [A. S. SUPEHIA, J] *** Bhavesh[pps]* Page 11 of 11 HC-NIC Page 11 of 11 Created On Tue Aug 15 15:02:51 IST 2017