Bombay High Court
Sheetal Vitthal Kshirsagar vs Vitthal Nagesh Kshirsagar on 3 May, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:21139
k 1/6 4 sa 189.24 as.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.189 OF 2024
WITH
INTERIM APPLICATION NO.7246 OF 2024
IN
SECOND APPEAL NO.189 OF 2024
WITH
INTERIM APPLICATION NO.7925 OF 2024
IN
SECOND APPEAL NO.189 OF 2024
Sheetal Vitthal Kshirsagar ....Appellant/Applicant
V/S
Vitthal Nagesh Kshirsagar ....Respondent
_________
Mr. Vaibhav R. Gargade for the Appellant/Applicant.
Mr. Rahul S. Kadam for Respondent.
__________
CORAM: SANDEEP V. MARNE, J.
DATE : 03 MAY 2024.
P.C.:
1 The Appellant has filed this Appeal challenging the decree dated 8
February 2024 passed by District Judge-1, Malshiras in Regular Civil Appeal
No.7 of 2023 by which the First Appellate Court has allowed the Appeal filed
by Respondent-husband and has set aside the judgment and decree dated 9
January 2023 passed by the Civil Judge Senior Division, Malshiras in Hindu
Marriage Petition No.136 of 2017. The First Appellate Court has allowed the
Respondent-husband's application and has dissolved the marriage solemnized
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between the Appellant and the Respondent. The First Appellate Court has
dismissed the Counter-Claim filed by the Appellant-wife and has directed the
Respondent-husband to pay permanent alimony of Rs.8,000/- per month to
the Appellant-wife from 5 April 2018.
2 I have heard Mr. Gargade, the learned counsel appearing for the
Appellant and Mr. Kadam, the learned counsel appearing for the Respondent.
3 On 2 April 2024 when Appeal was extensively argued by Mr. Gargade,
he made vehement appeal before this Court that parties be relegated to the
process of mediation and that such mediation is likely to result in success.
Despite resistance shown by Mr. Kadam, this Court referred the parties to
mediation. The learned Mediator has submitted a report stating that the
mediation proceedings have failed. Consequently the hearing of the Appeal
has progressed.
4 Mr. Gargade, would draw my attention to the findings recorded by the
Trial Court in paragraph 13 of its judgment under which various incidents
pertaining to the year 2013 are discussed when the Appellant-wife was not
taken back in the house of the Respondent-husband. He would submit that the
Trial Court had rightly recorded a finding that the Respondent-husband has
actually responsible for cruelty towards the Appellant-wife by not taking her
back in the house since the year 2013. He would therefore submit that the
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First Appellate Court has erroneously assumed and answered the issue of
desertion against Appellant-wife. He would submit that there is evidence on
record to indicate that Appellant-wife resided with Respondent-husband right
till the year 2016 and the ground of desertion was thus completely disproved.
He would also submit that there is no question of desertion by Appellant-wife
in view of the fact that she filed a counter-claim seeking a decree for
restitution of conjugal rights and actually desired to reside alongwith the
Respondent-husband. He would therefore submit that the First Appellate
Court has erroneously reversed the decree of the Trial Court.
5 After going through the findings recorded by the Trial Court and the
First Appellate Court it is seen that the Respondent-husband initially
approached the Trial Court with a complaint that the Appellant-wife deserted
him on 24 March 2013. A lot of debate has taken place between the parties
about whether there was desertion in the year 2013 or not. Even if contention
of Mr. Gargade about non-desertion in the year 2013 is to be accepted, it
appears that the First Appellate Court has held there is desertion atleast from
the year 2014. The said finding is recorded by the First Appellate Court on the
basis of one of the questions asked on behalf of the Appellant-wife to the
Respondent-husband during his cross-examination where a suggestion was
given that wife was residing with the husband during 29 January 2012 to 17
January 2014. If Appellant-wife indeed resided with her Respondent-husband
till the year 2016, it is incomprehensible as to why the above suggestion was
given to the Respondent-husband during the course of his cross-examination.
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Though Mr. Gargade has attempted mitigate the situation by inviting my
attention to another suggestion given in further cross-examination of
Respondent-husband about Appellant-wife's residence till December 2016, in
my view, such question does not explain in any manner as to why the
suggestion was earlier given that she resided with her husband only till 17
January 2014.
6 There is another interesting aspect in the present case. After receiving
summons in the Marriage Petition filed by the Respondent-husband,
Appellant-wife filed counter-claim on 12 May 2018. In the entire counter-
claim, there is no positive assertion by the Appellant-wife that she continued
residing with her husband till a particular date. The counter-claim is
completely vague. More interestingly, in paragraph 6 of the counter-claim the
Appellant-wife averred that the cause of action for filing the counter-claim for
restitution of conjugal rights arose on 27 October 2017 when the Respondent-
husband filed Marriage Petition for divorce. Thus there is a clear admission
that before 27 October 2017, there was no cause for the Appellant-wife to seek
a decree for restitution of conjugal rights. She thought of seeking restitution
of conjugal rights only after receipt of summons in Marriage Petition. In my
view, if Appellant-wife wanted to prove that she resided with her husband till
the year 2016, there ought to have been specific assertion to that effect in the
counter-claim. Therefore, no serious flaw can be found in the inference drawn
by the First Appellate Court about desertion after 17 January 2014.
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7 It must also be noted here that the marriage between the parties was
solemnized on 29 January 2012 and husband approached the Trial Court
seeking decree of divorce by contending that Appellant-wife left him on 24
March 2013. Even if the date of desertion on 17 January 2014 is taken into
consideration, the parties cohabited with each other only for a period of about
two years. In this connection reliance by Mr. Kadam on the judgment of the
Apex Court in Naveen Kohli vs. Neelu Kohli, 2006 (4) SCC 558 appears to
be apposite, wherein the Apex Court has held that irretrievable breakdown of
marriage can also be a good ground for granting the decree of divorce. In the
present case, the Appellant-wife appears to have deserted the Respondent-
husband after 17 January 2014 and is also ensuring that he does not secure a
decree of divorce. In my view, such conduct has rightly been considered by
the First Appellate Court for grant decree of divorce in favour of the
Respondent-husband. Interests of the Applicant-wife are duly taken care by
awarding permanent alimony in the form of maintenance of Rs.8,000/- per
month from 5 April 2018. It is only when the order was pronounced that
Mr. Gargade would request for enhancement of amount of maintenance.
However upon being enquired whether Appellant was willing to withdraw
proceedings under section 498-A of the Indian Penal Code and under
Protection of Women from Domestic Violence Act, 2005, his response is in
the negative. Appellant cannot seek enhancement of maintenance amount in
the Second Appeal while continuing with the above proceedings.
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8 In my view therefore, no substantial question of law is involved in the
Appeal. Second Appeal is accordingly dismissed. No costs.
9 In view of dismissal of the Second Appeal, nothing would survive in the
Interim Applications and the same are disposed of.
(SANDEEP V. MARNE, J.)
