Shekha Kunal Ranawat Daughter Of ... vs Kunal Shripal Ranawat S/O Mr. ...
2021 Latest Caselaw 4751 Bom

                                                                           sa st 97776-20



                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sneha
N.                                   CIVIL APPELLATE JURISDICTION
Chavan
                                       SECOND APPEAL (ST) NO. 97776 OF 2020
Digitally signed
by Sneha N.
Chavan
Date: 2021.03.16
                   Shekha Kunal Ranawat
17:34:36 +0530     d/o Mr. Sampatraj Jain                         .. Appellant
                        V/s.

                   Kunal Shripal Ranawat
                   s/o Mr. Shripal Ranawat                        ..Respondent
                                                ----
                   Mr. Kunal Bhanage a/w Anish Khandekar i/b Akshay Pawar for the
                   Appellant.
                   None for the respondent.
                                                ----
                                                       CORAM : C.V. BHADANG, J.

                                                 RESERVED ON : 12th MARCH, 2021
                                              PRONOUNCED ON : 16th MARCH, 2021

                   :JUDGMENT:

1. The challenge in this appeal is to the concurrent orders passed

by the courts below, thereby refusing to grant a decree of divorce in

favour of the appellant.

2. The appellant and the respondent got married on 30.10.2011

as per Hindu vedic rites at Kandivali (W). It appears that the

marriage ran into rough weather shortly thereafter. According to

the appellant, she was required to leave the matrimonial home on

01.04.2012 on account of physical and mental harassment meted

Sneha Chavan page 1 of 10 sa st 97776-20

out to her by the respondent. The appellant lodged a N.C.

complaint against the respondent on 02.04.2012. Since the year

2012, the appellant is staying at her maternal house.

3. On 01.07.2017, the appellant filed Marriage Petition No. 468

of 2017 for dissolution of marriage on the ground of cruelty and

desertion i.e. under Section 13(1)(i-a) and (i-b) of the Hindu

Marriage Act, 1955 before the learned Senior Civil Judge, at Thane.

4. It appears that the respondent was served and had put in

appearance through M/s. M. Tripathi & Co. However, subsequently,

the learned Advocate appearing for the respondent filed a pursis

Exhibit 10 stating that the respondent did not turn up and she was

unable to file the vakalatnama. In these circumstances, the

respondent was proceeded ex-parte on 23.11.2017.

5. Thereafter, the appellant examined herself along with her

father Mr. Sampatraj Jain and the priest Mr. Sukhlal Garg, who had

solemnized the marriage.

6. The learned Trial Court by a Judgment and Decree dated

24.01.2018 dismissed the petition, which has been confirmed in

Sneha Chavan page 2 of 10 sa st 97776-20

appeal by the learned District Judge at Thane vide Judgment and

Decree dated 24.01.2018 in Civil Appeal No. 35 of 2018. Hence,

this appeal.

7. I have heard Mr. Bhanage, the learned counsel for the

appellant. Perused record.

8. It is submitted by the learned counsel for the appellant that

the courts below were in error in refusing to grant a decree of

dissolution of marriage on the ground of cruelty and desertion,

although the evidence led in that regard had gone uncontroverted. It

is submitted that the finding recorded by the courts below holding

that the ground for dissolution of marriage is not proved, is thus,

perverse and against the weight of the evidence on record which

according to the learned counsel for the appellant is a substantial

question of law arising in the appeal. It is submitted that within six

months of the marriage, the appellant was required to leave the

matrimonial home on account of cruelty meted out to her. It is

submitted that after the appellant returned to her maternal home,

the incident was reported to the police at Nerul. It is submitted that

thereafter, attempts were made for reconciliation and to see that the

parties resume cohabitation and the marriage is saved. However,

Sneha Chavan page 3 of 10 sa st 97776-20

the same could not materalise. It is submitted that the fact that the

respondent had failed to contest the petition before the learned Trial

Court as well as in the appeal and even before this Court is

indicative of the fact that respondent is not interested in resuming

cohabitation and thus, necessary ingredients for establishing

desertion namely factum of separation, animus to stay separate and

animus not to take back the appellant wife for cohabitation are

sufficiently proved on record.

9. The learned counsel for the appellant submitted that the

parties are staying separate for more than 8 years, with no chances

of resumption and in the submission of the learned counsel for the

appellant, the marriage has irretrievably broken down. Although,

the learned counsel for the appellant in all fairness submitted that

this is not by itself a ground for dissolution, in the submission of the

learned counsel for the appellant both the grounds of cruelty and

desertion are sufficiently proved on record and no purpose would be

served by keeping the parties together in a matrimonial tie. It is

submitted that the impugned judgment has led to a situation where

the respondent is not interested or willing to take back the appellant

for cohabitation. The marriage has irretrievably broken down and

still the appellant is required to keep the marital tie intact.

     Sneha Chavan                                                 page 4 of 10
                                                              sa st 97776-20

10. On behalf of the appellant reliance is placed on the decisions

of the Hon'ble Supreme Court in (i) Durga Prasad Tripathy v/s.

Arundhati Tripathi1, (ii)Vinita Saxena v/s. Pankaj Pandit2,

(iii)Naveen Kohli v/s. Neelu Kohli 3, (iv)Rishikesh Sharma v/s. Saroj

Sharma4, (v)Samar Ghosh v/s. Jaya Ghosh5, and the decision of this

Court in Ratnamalabai w/o Sunil Sadashive v/s. Sunil s/o Magan

Sadashive in Family Court Appeal No. 15 of 2019, decided on

05.04.2019 (Aurangabad Bench)

11. I have given my anxious consideration to the circumstances

and the submissions made. The record indicates that the respondent

has failed to contest the matter since inception. The respondent had

put in appearance before the learned Trial Court. However, he

failed to contest the petition. Even in the appeal before the learned

District Judge, the respondent remained absent. This court issued

notice to the respondent twice. On 01.02.2021, a notice was issued

indicating that the appeal could be taken up for final disposal.

However, inspite of service, as per the affidavit of service filed by the

appellant, the respondent had failed to appear or contest the appeal.

1 (2005) 7 Supreme Court Cases 353 2 (2006) 3 Supreme Court Cases 778 3 (2006) 4 Supreme Court Cases 558 4 (2007) 2 Supreme Court Cases 263 5 (2007) 4 Supreme Court Cases 511

Sneha Chavan page 5 of 10 sa st 97776-20

12. At the outset, it is necessary to note that although the petition

before the learned Trial Court mentioned Section 13(1)(i-b) of the

Hindu Marriage Act i.e. the ground of desertion, the first appellate

court has considered the claim for dissolution of marriage on both

the grounds namely of cruelty and desertion i.e. under Section 13(1)

(i-a) and (i-b) of the Hindu Marriage Act. In this regard, it is trite

that court will be required to go by pleadings as a whole and the

evidence led and the label or mentioning of only one section will not

be decisive. Thus, it is necessary to consider the claim for

dissolution of marriage on both the grounds i.e. cruelty and

desertion.

13. The facts indicate that the parties are related to each other

since prior to the date of marriage and the appellant and the

respondent were knowing each other and had developed love

relationship and had thereafter married. However, disputes and

differences arose between the parties shortly thereafter.

14. The appellant is a BMS graduate, while the respondent is

stated to be matriculate and was engaged in a family business. It is

the material case of the appellant that shortly after marriage, the

respondent started consuming liquor and under the influence of the

Sneha Chavan page 6 of 10 sa st 97776-20

same, used to ill-treat the appellant and used to suspect her

character. There is one incident which had happened in which the

appellant was physically abused by the respondent under the

influence of liquor in the presence of her in-laws. The attempt for

reconciliation at that stage did not materialise, which led the

appellant to leave the matrimonial home, somewhere in first week

of April, 2012 after which N.C. complaint was lodged on

02.04.2012. It is necessary to note that the wife would not venture

to lodge such a complaint unless and until there are reasons grounds

for taking such extreme step. A wife would be looking forward to a

peaceful married life and is likely to disrupt the same, by filing such

a complaint, unless there are grave and compelling circumstances

and reasons to do so. The allegations and the evidence about the

cruelty have gone unchallenged and uncontroverted. It is now well

settled that 'matrimonial cruelty' within the meaning of Section

13(1)(i-a) of the Hindu Marriage Act is a conduct of such a nature,

degree and gravity, under which he or she cannot reasonably be

expected to live with the other spouse.. The question whether, the

cruelty of a degree, required for dissolution of marriage, is proved or

not, would depend upon the facts and circumstances of each case.

As indicated earlier, although the parties were knowing each other

and had a love relationship which had culminated into the marriage,

Sneha Chavan page 7 of 10 sa st 97776-20

within six months of the marriage, the appellant was required to

leave the matrimonial home and to lodge a complaint. Considering

the over all circumstances and the fact that the evidence has gone

uncontroverted, I do find that the finding recorded by the Appellate

court refusing to accept the ground of cruelty cannot be sustained.

15. Coming to the ground of desertion, Section 13(1)(i-b) of the

Act provides that desertion has to be for a continuous period of not

less than two years, immediately preceding the presentation of the

petition. In the present case, the appellant had left the matrimonial

home in April, 2012 and the petition for divorce is filed in July 2017

i.e. after a span of more than 5 years. The question is whether the

ground of desertion is established or not. It has come in the

evidence of the appellant and her father that attempts were made

for reconciliation, which did not evoke the required result. Even the

first Appellate Court in paragraph 24 of the judgment has found that

there was no attempt made by the respondent during the period of 5

years for restitution of conjugal rights. The first Appellate Court has

further noted that despite being aware about the marriage petition,

the respondent had abstained from appearance. Merely because,

the appellant was required to leave the matrimonial home under the

compelling circumstances, would itself not be sufficient to hold that

Sneha Chavan page 8 of 10 sa st 97776-20

the appellant has failed to prove the ground of desertion. It is true

that in a dispute of the present nature, a party to the marriage could

not be allowed to take benefit of his or her own wrong. However,

this is not a case which indicates that, inspite of bonafide attempt,

by the respondent, the appellant had failed to resume cohabitation.

Quite to the contrary, it has come on record that attempts were

made for reconciliation and to save the marriage, which did not

materialise. The desertion within the meaning of Section 13(1)(i-b)

requires the factum of separation and the animus to separate and

not to resume cohabitation being proved, all of which in my

considered view are established in this case.

16. A brief reference may be made at this stage, to the decision of

the Supreme Court in the case of Samar Ghosh (supra). The Hon'ble

Supreme Court has inter alia held that where there has been a long

period of continuous separation, it may fairly be concluded that the

matrimonial bond is beyond repair. It has been held that the

marriage, in such a case becomes a fiction, though supported by a

legal tie and by refusing to sever that tie, the law in such cases does

not serve the sanctity of marriage, on the contrary it shows scant

regard for the feelings and emotions of the parties.

  Sneha Chavan                                                  page 9 of 10
                                                       sa st 97776-20

17. Considering the over all circumstances, I find that the appeal

deserves to be allowed.

18. Hence, the following order is passed:

         a)     The appeal is allowed.

         b)     The impugned Judgment and Decree is hereby set

aside.

         c)     The Marriage Petition No. 468 of 2017 stands allowed

as prayed.

         d)     The marriage between the parties stands dissolved by a

decree of divorce.

         e)     A decree be drawn accordingly.



                                         C.V. BHADANG, J.




 Sneha Chavan                                                 page 10 of 10