Mrs. Nutan Shankar Moily vs Mr. Shankar Ramanna Moily
2017 Latest Caselaw 6488 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE JURISDICTION

                              FAMILY COURT APPEAL NO. 230 OF 2015

Mrs. Nutan Shankar Moily                                                                       ]
Age 45 years, Indian Inhabitant,                                                               ]
Occ. Professional, having her office                                                           ]
address at C/o. Sakhalkar's Leimare,                                                           ]
Advocates, B-112, 1st Floor, Urmila                                                            ]
Co-operative Housing Society,                                                                  ]
Koldongari Road No.1, Andheri (East),                                                          ]
Mumbai - 400 069.                                                                              ]
                                                                                               ]
And also at                                                                                    ]
C/o. Anand Bangera, 20/649,                                                                    ]
Vartak Nagar, Thane (West),                                                                    ]       Appellant
Thane - 400 606.                                                                               ]       (Org. Respondent)

V/s.

Mr. Shankar Ramanna Moily                                                                      ]
Aged about 52 years, Indian Inhabitant,                                                        ]
Occ. Service, having Permanent Address at                                                      ]
C/o. P. R. Moily, 8/213, Nandadeep, Roop                                                       ]
Nagar, Bandra (East), Mumbai - 400 051.                                                        ]
                                                                                               ]
Presently residing at :                                                                        ]
6651 Maple Grove DR                                                                            ]       Respondent
Indiapolis, IN46250, U.S.A.                                                                    ]       (Org. Appellant)

• Mr.Vishal Kanade a/w. Mr.Sunil Karothe i/b. Mr.Swapnil A. Waradkar for the Appellant.

• Mr.Jaydev Trivedi a/w. Ms.Bhupali Vaze for the Respondent.

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CORAM : SMT. V.K. TAHILRAMANI & DR. SHALINI PHANSALKAR-JOSHI, J.J.

DATE : 23rd AUGUST, 2017.

JUDGMENT : (PER :- DR. SHALINI PHANSALKAR-JOSHI, J. )

1] This appeal, preferred by Original Respondent-wife takes

an exception to the judgment and order dated 23 rd September, 2015

passed by Family Court No.3 Mumbai at Bandra, thereby dissolving

the marriage of Appellant and Respondent by decree of divorce under

Section 13(1-A) (ii) of the Hindu Marriage Act, 1955 (hereinafter

referred to as "the Act").

2] Brief facts of the appeal can be stated as follows;

Appellant and Respondent were married on 22nd August,

1996 at Powai, as per the rites and custom of Hindu Religion. After

the marriage, they cohabited together for some years in USA where

Respondent was and is serving since prior to their marriage. However,

some years after the marriage, due to differences of opinion and

incompatibility, Respondent had filed a petition for divorce bearing

No.747 of 2006 under Section 13(1)(ia) & (ib) of the Act on ground

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of cruelty and desertion. In the said petition, Appellant had preferred

counter claim for Restitution of conjugal rights under Section 9 of the

Act. By judgment and decree dated 15 th September, 2009, the petition

for divorce filed by Respondent-husband came to be dismissed.

Whereas counter claim of Appellant-wife for Restitution of conjugal

rights was allowed. As per the order passed therein, Respondent-

husband was directed to join company of Appellant-wife.

3] As per the case of the Respondent, after the passing of this

decree for Restitution of conjugal rights, he made genuine efforts of

convincing the Appellant for resuming cohabitation with him.

However all along she refused. He wrote letters to her from time to

time and requested her to set up a mechanism for preparing

documents like her Visa for her entry and stay in USA, where he is

residing since last more than 10 years which was since prior to their

marriage and also after the marriage. Appellant however, despite his

various efforts did not resume the cohabitation, though the decree for

Restitution of conjugal rights was in her favour. She did not show any

interest or inclination by seeking execution of the said decree, though

she filed execution proceedings for recovery of maintenance. Thus,

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ultimately being convinced that the Appellant is no more interested in

resuming cohabitation with him, Respondent filed the petition No.A-

1010 of 2012 before the Family Court Mumbai at Bandra seeking

dissolution of marriage on ground of non resumption of cohabitation

for a period of more than one year, even after the passing of decree of

Restitution of conjugal rights.

4] This petition came to be resisted by the Appellant

contenting inter-alia that there is willful default on the part of

Respondent himself in non compliance of the decree for Restitution of

conjugal rights. It was submitted by her that the Respondent has

visited India four times after the decree was passed, but he has never

made any attempt to join her company or to resume cohabitation.

According to her, Respondent had advanced only false promises and

assurances, but all along he insisted on her to join cohabitation in

USA. According to her, her cohabitation with him at USA is not

possible and Respondent is fully knowing about the same. It was

submitted that, as per the order passed by the Court, Respondent was

directed to join her company, thereby implying that he has to resume

cohabitation with her in India and it was not for her to resume

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cohabitation with him at USA. On all these grounds, the Appellant

prayed for dismissal of the petition.

5] In support of his case, the Respondent examined himself

and his sister Jyoti to prove his efforts of resuming cohabitation. He

has also placed reliance on the letters written by him to the Appellant

from time to time. His sister Jyoti has also deposed about the efforts

made by Respondent and she herself to convince the Appellant to

resume the cohabitation.

6] As against it, the Appellant examined herself and relied

upon certain documentary evidence.

7] On appreciation of this evidence, the learned Family Court

was pleased to uphold the case of Respondent that he has made

genuine efforts of resuming cohabitation but there was no response

and total non cooperation on the part of the Appellant. The learned

Family Court held that since beginning, the Appellant was very much

aware that Respondent was residing at USA and she has to resume her

cohabitation at USA, therefore there is no question of her now

insisting that Respondent should resume cohabitation in India.

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Accordingly, the learned Family Court allowed the petition filed by

the Respondent and dissolved the marriage, by impugned judgment

and decree, on the ground of non resumption of cohabitation, under

Section 13(1-A)(ii) of the Act.

8] While challenging this judgment and decree of the Family

Court, the submission of the learned counsel for the Appellant is that

the learned Family Court has proceeded on a totally wrong

presumption that it is for the wife to leave her paternal house and to

join her husband's company at his house. It is submitted that, the

Family Court has committed an error in observing that, wherever the

husband is residing, the wife has to cohabit with him and she cannot

insist or expect the husband to leave his job/carrier and to reside with

her at the place of her whims and desire. According to learned counsel

for the Appellant, just as it will be wrong on the part of the Appellant-

wife to expect that her husband should leave his job and residence at

USA and come and cohabit with her in India; similarly, it would be

wrong to expect the Appellant-wife to leave her residence and practice

in India and to resume cohabitation with Respondent at USA.

According to learned counsel for the Appellant, when the Family

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Court has while allowing the Appellant's petition for Restitution of

conjugal rights specifically directed the Petitioner-husband to join the

company of the Respondent-wife, the Family Court should not have

held that as the Appellant is not ready to resume cohabitation in USA,

she has no desire and therefore, it was necessary to pass the decree of

dissolution of marriage. The sum and substance of the learned counsel

for the Appellant is that as the Family Court has proceeded on totally

wrong assumptions and presumptions, the impugned judgment and

decree of the Family Court needs to be quashed and set aside.

9] Per contra, learned counsel for the Respondent has

supported the said judgment and order by pointing out that there is

ample evidence produced on record by the Respondent and which has

remained mostly unchallenged, proving that the Respondent has

made genuine efforts to resume cohabitation with the Appellant but

her attitude remained totally non-cooperative and non responsive.

The only reason offered by her for non-resumption of cohabitation is

that, she cannot be insisted to resume cohabitation at USA. It is

submitted that when the Appellant was very much aware since

beginning that Respondent is residing in USA and if at all she wanted

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to resume cohabitation, she had to go to USA, now she cannot

contend that she will not do so. If she says so, then it is clear that she

has no desire or interest in resuming cohabitation. Hence, according

to learned counsel for the Respondent, there was no alternative before

the Family Court but to dissolve the marriage. Hence, in his opinion,

no interference is warranted in the impugned judgment and decree of

the Family Court.

10] In the light of these rival submissions advanced by the

learned counsel for both the parties and on perusal of the evidence

and impugned judgment of the Family Court, we are of the considered

opinion that the judgment and decree passed by the Family Court

does not called for any interference. We record this finding for the

following reasons.

11] In the first place, in this case, the decree for Restitution of

conjugal rights was obtained by the Appellant by filing counter claim,

but admittedly she has not made any efforts to resume cohabitation. It

is pertinent to note that she had filed the proceedings for execution of

the order of maintenance, which was passed in earlier proceedings but

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she has not asked for the execution of the decree of Restitution of

conjugal rights. Thus, from her side, the Appellant has not made any

effort to resume cohabitation.

12] As against it, the evidence on record proves that she has

not even responded to the efforts made by the Respondent for

resumption of cohabitation. The evidence on record proves that the

Respondent has made several efforts of resuming the cohabitation.

The letters written by him to the Appellant on 25/12/2009 and

06/02/2010 produced at Exh.25, go to prove that he has tried to

convince her to resume cohabitation at USA. Further there is letter

written by him dated 30/04/2010, which is at Exh.27, proving that he

has called upon the Appellant to send the documents for completing

her Visa Process for her entry and stay in USA. The Appellant has

admitted the receipt of the said letter. She has replied the said letter

on 22/5/2010 vide Exh.45. In the said letter, the Respondent has

mentioned in clear terms that he was ready to comply with the decree

of Restitution of conjugal rights and she should therefore supply him

necessary documents for preparing her Visa. However, in her reply,

the Appellant has not specifically dealt with the Respondent's

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readiness and willingness to resume cohabitation. She even did not

express her desire to cohabit with the Respondent. Then there is e-

mail dated 3/8/2010 (Exh.44) sent by Respondent to the Appellant,

again asking her to cooperate for resuming the process of

cohabitation. The Appellant has admitted the receipt of this e-mail but

has not replied the same. The Appellant has also admitted the

Respondent's letter dated 20/3/2010 (Exh.29), wherein the

Respondent has disclosed intention of cohabiting with her in USA and

has requested her to contact him. But the Appellant has not replied

the said letter. Even in the notice Exh.41 issued by the Respondent to

the Appellant before filing of this petition, he has stated the efforts

made by him, proving his intention to resume cohabitation. However,

in her reply to the said notice Exh.42, the Appellant has not expressed

her intention or desire to cohabit with the Respondent.

13] In addition to these letters and the e-mail sent by

Respondent requesting the Appellant to resume cohabitation, his oral

evidence goes to prove that in the month of April 2010 when he

visited India, he tried to approach and convince the Appellant for

cohabitation. He has even visited her office on 20th April, 2010 for

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seeking her cohabitation. But there was no change in her attitude and

she was reluctant to talk about stay with him. There is no suggestion

in his cross examination that he has not made any such efforts at the

relevant time.

14] Further, there is also the evidence of Respondent's sister

Jyoti, who has also deposed about the efforts made by her to convince

the Appellant to resume cohabitation. She has also stated that in the

year 2010 she approached the Appellant several times and tried to

talk with her but she never responded. She has specifically stated

about visiting the Appellant's office in the month of June-July 2011 to

convince the Appellant but it was of no use.

15] Appellant has admitted that she has not provided the

necessary documents to the Respondent for preparing Visa. She has

also admitted that though the Respondent has given her his mother's

mobile number, she did not contact his mother to complete the

formalities of her visiting to USA. Thus, there is absolutely no iota of

evidence on record to show that she has ever exhibited any interest or

willingness to join the Respondent for cohabitation. She has neither

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taken any steps on her own to resume cohabitation nor responded to

the various steps taken by the Respondent for resumption of

cohabitation.

16] The only excuse offered by the Appellant for not resuming

cohabitation is that she cannot be expected to join the Respondent at

USA. However, this excuse cannot be accepted for the simple reason

that, since beginning, even prior to his marriage with the Appellant,

the Respondent is residing in USA and accordingly after the marriage,

the Appellant has joined his company in USA. In written statement

cum counter claim filed by the Appellant to the petition for divorce

filed earlier, the Appellant has categorically admitted in paragraph

No.2(b) that, after the marriage she had joined the Respondent in

USA and she was very happy and comfortable during her stay in USA.

The Respondent was treating her with love, care and affection. He

provided her with all the basic necessities required for her and also

used to take her along with him to various functions, parties, movies

etc. It is also a matter of record that even when Appellant filed

counter claim for Restitution of conjugal rights, she was aware that

Respondent is residing at USA, as he is doing the job there. In the said

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petition, the address of Respondent was given as resident of USA. She

has sought maintenance from him claiming that he is serving in USA

and getting substantial salary. Therefore, it is not a case, as rightly

observed by the Family Court, that the Respondent has intentionally

left India after the decree of Restitution of conjugal rights was passed

and settled in USA in order to avoid the execution of such decree.

17] In view of this undisputed fact that Respondent is residing

in USA since last more than 10 years and even after the marriage, the

Appellant has cohabited with him at USA and at the time of her

counter claim for Restitution of conjugal rights also she was aware

about his residence in USA, then it necessarily follows that when the

Respondent has expressed desire and shown her willingness and

interest in resuming cohabitation, by filing counter claim for

restitution, she was aware that she will have to resume cohabitation

with Respondent in USA. There was absolutely no question of

Respondent coming to India and resuming cohabitation with her at

India. There was no such condition put up by her also in her counter

claim, nor there is any discussion or evidence led on that aspect in the

earlier petition for divorce in which counter claim for restitution was

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filed by the Appellant.

18] Therefore, in our considered opinion, the Family Court has

rightly held that the Appellant was since beginning knowing that if

she had desire to resume cohabitation then it was to be at USA.

Hence, now the contention advanced by learned counsel for the

Appellant, that if the Respondent cannot be expected to come to India

leaving his job and residence in USA, Appellant also cannot be

expected to leave her residence and job in India and to go to USA

cannot be accepted. She had married with the Respondent knowing

well that she has to cohabit him at USA and she has actively cohabited

with him in USA only. It was her counter claim for Restitution of

conjugal rights expressing desire to resume cohabitation, knowing

fully that the Respondent was very much residing and doing job in

USA and hence now she cannot be permitted to back track by saying

that she is not ready to comply with the Restitution of conjugal rights

as the Respondent is residing in USA. If she says so, then it has to be

inferred that she has no desire or interest in resuming cohabitation

and her counter claim for Restitution was merely to defeat the petition

for divorce filed by the Respondent.

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19]                     In   such   situation,   as   the   resumption   of   cohabitation

between the parties has not taken place, even after the decree of

Restitution of conjugal rights was passed and that too, only on

account of non cooperation on the part of the Appellant, the learned

Family Court has rightly passed the decree of dissolution of marriage

on that ground.

20] Even if the contention of the Appellant is accepted that she

cannot be expected to leave her job and residence in India and to join

the Respondent in USA, it was necessary on her part to find out some

solution, by showing interest and giving response to the efforts made

by the Respondent. Both of them could have found out some amicable

solution to this problem but as she has never shown any interest or

desire to resume cohabitation and merely put up a lame excuse for not

doing so, on ground that she cannot be expected to go to USA, the

learned Family Court was perfectly justified in holding her responsible

for non resumption of cohabitation and therefore, granting the decree

of dissolution of marriage on that ground.

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21]                     The   Appeal,   therefore,   holds   no   merits,   hence   stands

dismissed with no order as to costs. 


(DR. SHALINI PHANSALKAR-JOSHI, J.)    (SMT. V.K. TAHILRAMANI, J.)