Bombay High Court
Shri. Akhilkumar Ratnachand Jain vs Mrs. Renu Akhil Jain on 7 October, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:43113
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Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 13 OF 2023
WITH
INTERIM APPLICATION NO. 3200 OF 2020
Akhilkumar Ratanchand Jain ..Appellant
Versus
Renu Akhilkumar Jain ...Respondent
Adv Hemangi D Pathare, for the Appellant.
Mr. Surendra Kumar Choudhari, for the Respondent.
CORAM: N. J. JAMADAR, J.
DATE : 7th OCTOBER 2025
ORDER:
1. This Second Appeal is directed against a judgment and decree
dated 7th March 2019 passed by the learned District Judge, Vasai,
whereby the Appeal preferred by the Appellant-Petitioner against the
judgment and decree dated 20th April 2017 passed by the learned Civil
Judge in Marriage Petition No. 38 of 2014, came to be dismissed by
affirming the order of dismissal of the Petition for dissolution of
marriage.
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2. Heard Ms Pathare, the learned Counsel who has been appointed
to espouse the cause of the Appellant, and Mr. Surendra Kumar
Choudhari, the learned Counsel for the Respondent.
3. The marriage of the Appellant was solemnized with the
Respondent on 16th February 1996. The Appellant and Respondent have
been blessed with a son and a daughter.
4. In the year 2013, the Respondent lodged a complainant against
the Appellant under the provisions of the Protection of Women from
Domestic Violence Act, 2005 ("the DV Act") and sought various reliefs.
The Appellant instituted Petition No. 38 of 2014 for dissolution of
marriage on the grounds of cruelty and desertion.
5. After appraisal of the evidence, the learned Civil Judge, Vasai,
dismissed the Petition for dissolution of marriage holding inter alia that
the Appellant failed to establish that the Respondent treated the
Appellant with cruelty and that the Respondent had deserted the
Petitioner for a continuous period of not less than two years
immediately preceding the presentation of the Petition.
6. The learned Civil Judge was of the view that the Appellant was
dissatisfied with the Respondent as the latter failed to clear Chartered
Accountant's examination. Appellant and Respondent continued to
reside under one and the same roof, and it appeared that the Appellant
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desired to get rid of the Respondent by raising grounds of desertion and
cruelty.
7. The Appellant carried the matter in Appeal before the District
Court. By the impugned judgment and decree the learned District Judge
dismissed the Appeal broadly concurring with the view of the learned
Civil Judge. In an elaborate judgment, the learned District Judge found
that the alleged acts of cruelty and desertion were far from proved. The
evidence indicated that the Appellant harassed the Respondent to
coerce her to meet unlawful demand for acquisition of a residential
premises and the inability of the Respondent to clear the CA
examination, which was allegedly agreed upon at the time of marriage.
8. The learned District Judge also noted that since the material on
record indicated that the Appellant and the Respondent were cohabiting
together under one and the same roof till the month of June 2012, there
was no cause of action for the institution of the Suit on the ground of
desertion in the month of February 2014.
9. Being aggrieved the Appellant has preferred this Second Appeal.
10. Ms. Pathare earnestly urged that both the Courts have completely
misconstrued the claim of the Appellant. The mere fact that the
Appellant and the Respondent were residing under one and the same
roof was not sufficient to non-suit the Appellant. There can be desertion
in law, even if the parties were residing under one and the same roof.
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Inviting attention of the Court to the observations in the impugned
judgment, that the Respondent conceded that the Respondent used to
cook the food for herself and children and not for the Appellant and the
Appellant was doing his own chores including cooking food for himself,
Ms. Pathare would urge there was a clear animus deserendi. The said
act on the part of the Respondent also constituted matrimonial cruelty.
Consequently, the substantial questions of law as to whether the Courts
below erred in misreading the evidence and misconstruing the concepts
of cruelty and desertion, arise for consideration, submitted Pathare.
11. In opposition to this, Mr Surendra Choudhari submitted that no
question of law much less a substantial question of law arises for
determination in the Second Appeal. The concurrent findings of facts by
the Courts below are impeccable. Therefore, the Appeal deserves to be
dismissed.
12. Evidently, the Appellant and the Respondent are residing in the
same premise. They have two grown up children. The Respondent had
initially lodged a proceeding under the DV Act and sought monetary
and other protective reliefs. Thereafter, the Appellant instituted the
instant Petition for dissolution of marriage. It is true, there can be
desertion even where the parties share the same house. Desertion
means the intentional abandonment of one spouse by the other without
consent of the other and without reasonable cause. Both factum of
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separation and animus deserendi are required to be established. The
animus deserendi on the part of the deserting spouse is of material
significance and often tilts the scale where the factum of separation is
objectively established.
13. In the case at hand, the Courts below have noted that the
estrangement between the Appellant and the Respondent was brought
about by the acts and conduct on the part of the Appellant. There is
material to indicate that the Appellant was dissatisfied on account of
the non fulfillment of the promise to provide financial assistance to
acquire a house in Mumbai by the father of the Respondent and the
failure of the Respondent to clear the CA examination. These twin
factors appeared to be the prime causes for the marital discord.
14. The learned District Judge was, therefore, justified in recording a
finding that the Appellant could not have insisted for the performance
of the aforesaid conditions and exerted pressure on the Respondent on
the said count. A finding of fact was also recorded by the Courts below
that the Appellant himself refused the company of the Respondent.
Thus neither the ground of desertion nor cruelty can be said to have
been made out. On the contrary, an inference becomes inescapable that
Petition for dissolution of marriage was filed as a counterblast to the
proceeding instituted by the the Respondent for monetary and other
protective reliefs under the DV Act.
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15. In the backdrop of the evidence on record and the appraisal
thereof by the learned Civil Judge and learned District Judge, this Court
finds that no question of law, much less substantial question of law,
arises for determination.
16. The Appeal, therefore, stands dismissed.
17. In view of the dismissal of the Appeal, the Interim Application
also stands disposed.
[N. J. JAMADAR, J.]
