Smt. Smita Ajit Deshmukh vs Ajit Haribhau Deshmukh (Dead) ...
2021 Latest Caselaw 3373 Bom

212-J-FCA-23-14                                                                     1/5


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

                        FAMILY COURT APPEAL NO.23 OF 2014


Smita Ajit Deshmukh,
aged about 45 years, Occupation Service,
resident of 12, Prakash Building,
Behind State Bank of India, Ravi Nagar Chowk,
Amravati Road, Nagpur                                        ... Appellant

-vs-

1. Ajit s/o Haribhau Deshmukh
   (since dead) Through LRs

i. Devyani Onkar Wazalwar,
   aged about 35 years, Occ. Private Service
   r/o D-1, Shivam Apartments, Mahashabde Galli,
   Behind Axis Bank, Mahal, Nagpur 44 00 32 (daughter)

ii. Rajani Haribhau Deshmukh
    (Deleted)                                                ... Respondents

Shri Vinay Dahat, Advocate for appellant.
Shri A. R. Patil, Advocate for respondents.

               CORAM : A. S. CHANDURKAR AND PUSHPA V. GANEDIWALA, JJ.

DATE : February 23, 2021

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

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

1984 takes exception to the decree for divorce granted by the Family

Court on the ground of desertion in the proceedings initiated by the

original respondent-husband.

2. The appellant and the original respondent were married on

04/05/1982. In the year 1984 a daughter was begotten from the said

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wedlock. From 23/07/1986 the parties started residing separately.

Various proceedings were filed by either of them for seeking restitution

of conjugal rights, grant of maintenance as well as divorce. Since the

wife was residing separately from 23/07/1986 despite having secured a

decree of restitution of conjugal rights, the husband filed the present

proceedings for grant of divorce under Section 13(1)(i-a) and (i-b) of the

Hindu Marriage Act, 1955 (for short, the said Act). These proceedings

were opposed by the wife by alleging that false grounds had been raised

by the husband for seeking divorce. The parties led evidence before the

Family Court and by the judgment dated 29/03/2004 the divorce

petition was partly allowed. The marriage between the parties was

dissolved by passing a decree for divorce on the ground of desertion.

Being aggrieved the wife has filed the present appeal.

2. During pendency of the appeal the husband expired on

01/09/2018 and the legal heirs were permitted to be brought on record

as the cause of action survived. Accordingly the mother of the husband

and thereafter the daughter of the present appellant are on record.

3. Shri Vinay Dahat, learned counsel for the appellant submitted

that the Family Court was not justified in passing the decree for divorce

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on the ground of desertion. There was no sufficient evidence to prove

that it was the wife who had deserted the husband. On the contrary

despite passing the decree for restitution of conjugal rights it was the

husband who refused to abide by that decree and the wife was compelled

to live separately. He referred to the evidence on record and submitted

that the husband could not be permitted to take benefit of his own wrong

under Section 23 of the said Act. He therefore submitted that the

impugned decree of divorce be set aside.

4. Shri A. R. Patil, learned counsel for the original respondent in

this appeal supported the impugned judgment. According to him though

the decree for restitution of conjugal rights was passed in favour of the

wife she did not take any steps to execute the same. The wife had left

the matrimonial house voluntarily and her evidence indicated that she

was not desirous of returning to the matrimonial house. Since the parties

were residing separately from 1986 the husband was left with no option

but to seek divorce on the ground of cruelty and desertion. He therefore

submitted that since the Family Court had considered the entire evidence

on record and had granted divorce on the ground of desertion, no

interference was called for.

5. In the light of aforesaid submissions the following point arises

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for determination :

" Whether the judgment of the Family Court deserves to be interfered with ? "

6. We have heard the learned counsel for the parties at length

and we have also perused the records of the case. The facts indicate

that after the parties were married on 04/05/1982 they resided together

for a short period. A daughter was born in the year 1984 and within two

years that is from 23/07/1986 the parties started residing separately.

Despite decree for restitution of conjugal rights being passed in favour of

the wife no steps were taken to execute the same. Perusal of the

evidence of both the parties indicates that the wife in her cross-

examination admitted that when the earlier proceedings for divorce filed

by the husband were withdrawn she was ready to live with the

husband. However after withdrawal of those proceedings she admitted

that she did not go back to stay with him. It is further admitted by her

that she came from well-to-do family as her father was having servants

and a car at his residence. These facilities were not available at the

matrimonial house. She further admitted that for more than twelve

years she was residing separately and that she did not make any effort to

return the matrimonial house. The husband in his deposition has

reiterated the averments as made in the divorce petition. He has denied

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the suggestion that he was not willing to take back the wife at the

matrimonial house.

7. The learned Judge of the Family Court after considering all

this evidence on record found that the wife had no desire to return to the

matrimonial house. Animus deserendi is clear from consideration of the

evidence of the parties. It was also found that there was no material on

record even to infer that the husband was opposing the attempts of his

wife to resume cohabitation. Despite the decree for restitution of

conjugal rights there was no resumption of cohabitation thereafter

between the parties for which the judgment-debtor could not be blamed.

It is found that the Family Court has considered all the evidence on

record and has thereafter proceeded to grant decree for divorce on the

ground of desertion. Moreover the husband has now expired. We do not

find any exceptional case made out to interfere with the well reasoned

judgment of the Family Court. The point as framed is accordingly

answered by holding that no interference is called for in the impugned

judgment. Consequently the judgment of the Family Court in Petition

No.A-514/1999 stands confirmed. The Family Court Appeal stands

dismissed with no order as to costs.

                                  JUDGE                           JUDGE

Asmita