Smt. Shobha W/O. Fakiraji ... vs Shri. Fakira S/O. Chirkutrao ...
2021 Latest Caselaw 2192 Bom

FCA48.16(j)                                                                          1/7


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH, NAGPUR.


                            FAMILY COURT APPEAL NO.48/2016


Smt. Shobha w/o Fakiraji Amnerkar,
Aged about 46 years, Occ- Household,
R/o. Plot No.75, Sai Nagar, Shanti Nagar Road,
Nagpur, District Nagpur.                                     ... Appellant

-vs-

Fakira s/o Chirkutrao Amnerkar,
Aged about 50 years, Occ. Business,
R/o. Takalghat, Tah. Hingna, District Nagpur.                ..Respondent

                                         ....

Shri D.C.Chahande, Advocate for the appellant. None for the respondent.

.....

CORAM : A. S. CHANDURKAR AND N. B. SURYAWANSHI JJ. DATED : FEBRUARY 03, 2021.

Judgment : (Per A.S.Chandurkar, J.)

This appeal under Section 19 of the Family Courts Act, 1984

raises challenge to the judgment of the Family Court, Nagpur, dated

18.02.2016 in Petition No.A-645/2016. By the said order, the petition for

dissolution of marriage filed by the respondent-husband has been partly

allowed and the marriage between the parties has been dissolved by

passing a decree of divorce on the ground of desertion.

2. The marriage between the appellant and the respondent was

solemnized on 06.05.1983. From the said wedlock the couple had three

FCA48.16(j) 2/7

children. It is the case of the husband that he was taking good care of the

family but the behaviour of his wife was not good. She used to abuse the

husband on various occasions. She was not interested in doing household

duties and was interested only in the income of the husband. It is the case

of the husband that the wife drove him away from his house and since

12.01.2011 he was required to reside in a rented house. On these counts

the husband filed the present proceedings on 03.07.2013 seeking

dissolution of the marriage.

3. The wife filed her written statement at Exhibit 20 and opposed

the prayers as made therein. It was denied that the wife was in any

manner ill-treating the husband. It was denied that the wife had driven

away the husband from the matrimonial house. Reference was made to

the orders passed in other proceedings by which the husband was

required to pay maintenance to the wife but these orders were not

complied with. It was prayed that the proceedings were liable to be

dismissed.

4. The parties led evidence before the Family Court and after

considering the same it was held that the husband had failed to prove that

the wife was treating him with cruelty. The Family Court further held that

the husband had proved that the wife had deserted him for a period of not

less than two years prior to filing of the petition. Hence, on 18.02.2016

FCA48.16(j) 3/7

the Family Court allowed the petition filed by the husband partly and

granted a decree of divorce under Section 13(1)(i-b) of the Hindu

Marriage Act, 1955 (for short, the said Act). Being aggrieved the wife has

challenged the aforesaid judgment.

5. Shri D.C.Chahande, learned counsel for the appellant-wife

submitted that it was the case of the husband that on 12.01.2011 the wife

did not permit the husband to enter the matrimonial house and drove him

away. Since that date the husband was not residing with the wife.

According to the learned counsel this act would not constitute desertion as

contemplated by Section 13(1)(i-b) of the said Act. In fact, it was the

husband who had himself left the matrimonial house and had refused to

return back. The ingredients of desertion that are required to be proved

before passing a decree for dissolution of marriage on that count were not

satisfied. Merely because the wife could not lead evidence on account of

her ill-health the same could not be a ground to hold that the husband's

case had been duly proved. In fact, the evidence led by him was

insufficient to grant such decree. It was further submitted that despite

various orders for paying the amount of maintenance, the husband had

failed to comply with the same thereby causing prejudice to the rights of

the wife. It was thus submitted that the impugned judgment was liable to

be set aside.

FCA48.16(j) 4/7

6. On 02.02.2021 the learned counsel for the respondent was

absent. To grant an opportunity we had kept the appeal today. Today

also there is not appearance on behalf of the respondent.

7. We have heard the learned counsel for the appellant and we

have perused the records of the case. The following point arises for

adjudication :

Whether the Family Court was legally correct in holding that

the husband had proved that the wife had deserted him so as to pass a

decree of divorce on that ground ?

8. As stated earlier, in the petition filed by the husband

dissolution of marriage was sought on two counts namely under Section

13(1)(i-a) on the ground of cruelty and Section 13(1)(i-b) on the ground

of desertion. The Family Court held that the husband had failed to prove

cruelty on the part of the wife and no decree on that ground was passed.

The decree has been passed only on the ground of desertion. Perusal of

the petition filed by the husband and especially the averments in

paragraph 10 indicate that it was the case of the husband that the wife

drove away the husband from his house on 12.01.2011 and since that date

the husband was living in a rented house. Except these averments, there

are no pleadings to indicate that it was the wife who had deserted the

FCA48.16(j) 5/7

husband. In the evidence led by the husband the same aspects are

reiterated. In his evidence, the husband did not substantiate his stand

that the wife had deserted him. Except for stating that on 12.01.2011 the

wife had driven him away, there are no further pleadings. We find that

these pleadings in the petition and thereafter the evidence led by the

husband are wholly insufficient to enable the Court to conclude that it was

the wife who had deserted the husband.

9. At this stage, it would be necessary to refer to the explanation

to Section 13(1) of the said Act in the context of the expression

"desertion". The explanation reads as under :

"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 wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly."

As held in Rohini Kumari Vs. Narendra Singh AIR 1972 SC 459 there

must be a determination on the part of a party to put an end to the marital

relation. Without animus deserendi, there can be no desertion. We find

that none of the ingredients to constitute desertion as contemplated by

Section 13(1) (i-b) of the said Act have been brought on record by the

husband. The learned Judge of the Family Court in paragraph 21 has

merely observed that as the parties were residing separately for about four

FCA48.16(j) 6/7

years and the wife had driven away the husband, this was sufficient to

constitute desertion. We are not in a position to sustain this finding since

the ingredients of desertion as contemplated by Section 13(1)(i-b) of the

said Act are neither pleaded nor proved by the husband.

10. It is to be noted that the learned Judge of the Family Court has

given much importance to the fact that the wife had failed to lead

evidence before the Family Court. The wife in her adjournment

application stated that she was unwell on account of her ailment of cancer

and hence she could not attend the Court. Though the learned Judge of

the Family Court granted adjournment on two occasions, the case

proceeded further without her evidence. Be that as it may, the burden to

prove the allegation of desertion was on the husband and he has failed to

lead any evidence in that regard. Hence absence of evidence of the wife

cannot be a ground to accept the case of the husband.

11. It was urged by the learned counsel for the appellant that the

husband was not regularly paying the amount of maintenance. We find

that it is open for the wife to execute the orders of grant of maintenance

and that matter can be independently pursued. The point as framed is

answered by holding that the Family Court was not legally justified in

granting divorce on the ground of desertion.

FCA48.16(j) 7/7

12. As a result of the aforesaid discussion, we pass the following

order :

(i) The judgment dated 18.02.2016 in Petition No.A-645/2013 is

set aside. Petition No.A-645/2013 stands dismissed with costs. Family

Court Appeal No.48/2016 is allowed and the respondent shall pay the

costs to the appellant.

                        JUDGE                       JUDGE



Andurkar.