Gujarat High Court
Diken Surendrabhai Barot vs Toral Ashokbhai Barot on 3 February, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/1316/2019 JUDGMENT DATED: 03/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1316 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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DIKEN SURENDRABHAI BAROT
Versus
TORAL ASHOKBHAI BAROT
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Appearance:
DARSHIT R BRAHMBHATT(8011) for the Appellant(s) No. 1
MR. NISARG N JAIN(8807) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 03/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. With consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing.
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2. Heard Mr.Darshit Brahmbhatt, learned counsel for the appellant and Mr.Nisarg Jain, learned counsel for the respondent.
3. Admit. Mr.Nisarg Jain, learned counsel waives service of notice of admission for and on behalf of respondent.
4. The present First Appeal has been filed by the appellant - husband challenging the judgment and decree of the Family Court at Nadiad dated 11.12.2017, by which, the suit of the appellant for claiming a decree of divorce on the ground of desertion under the relevant provisions of the Hindu Marriage Act, 1955, has been dismissed.
5. Briefly stated, the application for divorce was filed by the appellant on 27.06.2016. In the application, the appellant claimed that the respondent had deserted Page 2 of 5 Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:53:12 IST 2025 NEUTRAL CITATION C/FA/1316/2019 JUDGMENT DATED: 03/02/2025 undefined him for a period of over 2 years. Therefore, the appellant
- husband contended that he was entitled to a decree of divorce under Section 13(1)(ib) of the Hindu Marriage Act.
6. Assessment of evidence on record based on the examination and cross-examination of witnesses has been been done by the Family Court. Perusal of the judgment would indicate that it is an admitted fact that the application for divorce was filed on 27.06.2014, whereas the couple had stayed together upto 27.11.2014. Therefore, the statutory period of desertion of two years had not been completed which persuaded the Family Court not to entertain the application.
7. In light of the decision of the Division Bench of this Court in the case of Prashant Arvindbhai Halari Versus Nina Vivek Mushale passed in First Appeal No.1481 of 2016 on 28.08.2020, wherein the facts are similar to the Page 3 of 5 Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:53:12 IST 2025 NEUTRAL CITATION C/FA/1316/2019 JUDGMENT DATED: 03/02/2025 undefined present appeal. Relevant paras 29 and 30 of the said judgment reproduced as under:-
29. It is also admitted in the cross-examination that the respondent had taken the treatment of family planning in July 2009 and also in August 2009 at Pune and the appellant has further stated that he had gone to Pune to the Respondent and treatment was taken. He has also admitted that the application for divorce is filed in December 2009.
Thus, from the very admission in the cross- examination at exhibit 41, it clearly transpires that in the month of August 2009, the appellant had gone to the house of respondent at Pune and treatment for family planning was taken at Pune in the month of August 2009. The appellant has also admitted that in the month of October 2009, he went to Dubai with respondent wife. The fact remains that the application for divorce on the ground of desertion was filed by the appellant on 29.12.2009. Hence, there was no continuous desertion for a period of two years as provided under section 13(1)(ib). The admission is made by the appellant in his cross-examination that the respondent accompanied the appellant on official tour of Dubai in the Month of October 2009. The learned Family Court has rightly appreciated the evidence on record and more particularly the admission made by the appellant in his oral testimony at exhibit 41 and therefore has correctly come to the conclusion that the desertion as provided under section 13(1)(ib) is not proved by the appellant.
30. Upon reappreciation of the evidence, it cannot be said that the conduct of the respondent wife is Page 4 of 5 Uploaded by MANOJ KUMAR(HC01092) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:53:12 IST 2025 NEUTRAL CITATION C/FA/1316/2019 JUDGMENT DATED: 03/02/2025 undefined indicative of a firm determination not to return to the marital home and discharge obligations attached thereto. On the contrary, the evidence shows that the respondent was willing to expand the family for which the appellant also attended the treatment being given at Ahmedabad and Pune and therefore, the Family Court has rightly come to the conclusion that the appellant has not been able to prove desertion as provided under section 13(1)(ia) of the Act. Upon re-appreciation of the evidence on record, the finding on desertion arrived at by the learned Family Court including the explanation to section 13(1)(ib) is rightly appreciated by the Family Court, which does not require any interference.
8. In view of the above, we are of the opinion that the learned Judge of the Family Court has committed no error. The First Appeal is accordingly dismissed. No order as to costs.
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