[Cites 6, Cited by 0]
Gujarat High Court
Harsha Manoj Sharma vs Manoj Krushnakumar Sharma on 2 December, 2025
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C/SA/108/2023 CAV JUDGMENT DATED: 02/12/2025
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Reserved On : 07/10/2025
Pronounced On : 02/12/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 108 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
No
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HARSHA MANOJ SHARMA
Versus
MANOJ KRUSHNAKUMAR SHARMA
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Appearance:
MR NK MAJMUDAR(430) for the Appellant(s) No. 1
MR NL RAMNANI(2400) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
1. The present Second Appeal has been filed under Section 100 of the
Code of Civil Procedure, 1908, challenging the judgment and order
passed by the Principal District Judge, Gandhinagar, dated 28.06.2021, in
Regular Civil Appeal No.28 of 2018, whereby the said appeal filed by the
original applicant husband has been allowed and the judgment and decree
passed in HMP No.141 of 2012, by the 6 th Additional Senior Civil Judge,
Gandhinagar dated 24.01.2018, has been quashed and set aside.
2. For the sake of brevity, parties are referred to herein as per their
original status as that of in the suit.
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3.1 The brief facts arising in the present case are that marriage of the
original plaintiff - husband and respondent-wife was solemnized on
22.04.2004 at Jalgaon, Maharashtra as per Hindu Marriage Act. It is an
admitted fact that this was second marriage of both the parties and
plaintiff husband had daughter from his first marriage, who is residing
with the plaintiff husband.
3.2 It is the case of the appellant (defendant) that after the marriage,
the appellant was being ill-treated by the family members of the husband
on trivial issues and within a short span of marriage of four months, she
was deserted by the husband. The appellant thereafter filed an application
under Section 125 of the Code of Criminal Procedure, for maintenance
and the JMFC, Jalgaon, Maharashtra was pleased to grant amount of
maintenance of Rs.2,000/- per month. Thereafter on 02.11.2012 the
husband filed application under Section 13 o the Hindu Marriage Act for
divorce on the ground of desertion before the Principal Senior Civil Judge
being HMP No.141 of 2012.
3.3 The defendant wife appeared in the said suit and filed written
statement at Exh.10. After hearing the parties, the trial Court framed
issues at Exh.22 which reads as under:
"(1) Whether applicants prove that opponent has left the house of
applicant since last two years ?
(2) Whether the applicant proves that opponent has given mental
pain to the applicant?
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(3) Whether applicant is entitled to get the relief as prayed in the
application ?
(4) What order and decree ?"
3.4 The husband examined himself vide Exh.26 whereas the wife has
examined himself at Exh.35 and witness of the wife is examined at
Exh.39. The trial Court, after hearing the parties and after considering
oral and documentary evidences, and after giving findings on all issues,
rejected the suit of the plaintiff.
3.5 Against the said judgment and decree passed by the trial Court, the
husband filed Regular Civil Appeal No.28 of 2018. In the said appeal,
though notice was served to defendant wife, none appeared for the
defendant wife. After hearing the learned advocate for the plaintiff -
husband, the appellate Court quashed and set aside the judgment and
order passed by the trial Court in HMP No.141 of 2012 and allowed the
appeal filed by the plaintiff husband under Section 13(1) (ib) of the Hindu
Marriage Act and declared the marriage of the plaintiff husband and
defendant wife (appellant herein) to be dissolved. Hence, the present
Second Appeal.
4.1 Learned advocate for the defendant - appellant has mainly argued
that the appellate Court has not taken into consideration the fact that the
plaintiff has not made any attempt for restitution of conjugal rights and
there is no criminal complaint filed by the defendant wife and the only
proceeding that was filed by the defendant wife was under Section 125 of
the Cr.PC.
4.2 Learned advocate for the defendant has also argued that if the
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deposition of the husband is taken into consideration, even in his
deposition, the plaintiff husband has not stated anything that he has made
attempts to take back the defendant wife.
4.3 Learned advocate for the defendant has also argued that appellate
Court has committed grave error of law by making assumption and
presumption about status of both the parties.
4.4 Learned advocate for the defendant has also argued that no
opportunity was given to defendant to represent her case before the
appellate Court and judgment of the trial Court has been reversed by the
first appellate Court taking into consideration social structure of Indian
culture and the same can never be ground for divorce and, therefore,
judgment and decree passed by the appellate Court is required to be
quashed and set aside and present appeal requires to be admitted on the
following substantial questions of law, as suggested in the memo of
appeal.
"(a) Whether the Ld. First Appellant Court can overlook
the proviso of Section 13 of the Hindu Marriage Act, and
deliver judgment on assumptions and presumption with respect
to the desertion ?
(b) Whether the Ld.First Appellant Court can travel
beyond the deposition of the parties and make presumption
taking examples of Social Structure, as mentioned in para no.8
& 10 of impugned judgment ?
(c) Whether in the matrimonial disputes the Ld.First
Appellant Court can shift the burden of proof on the defendant
- wife, by making merely presumption or assumptions in
favour of plaintiff - husband, in absence of any specific
evidence, either orally or documentary lead by husband ?
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(d) Whether in the First Appeal the defendant - wife
would compel to prove the facts of matrimonial dispute, which
the plaintiff - husband has failed to prove ?
(e) Whether the Ld. First Appellant Court can terminate
the relations of husband and wife as mentioned in the Hindu
Marriage Act, merely by presumption or assumptions ?
(f)Whether Ld. First Appellant Court can reverse the judgment
and decree of Ld. Trial Court which is based upon the guided
principle of law, merely by taking examples of social structure
and presumption and assumptions ?"
5.1 Learned advocate for the plaintiff has mainly argued that even after
separation, the plaintiff waited for 8 - 10 years and thereafter the divorce
proceedings were filed on the ground of desertion and mental cruelty.
5.2 Learned advocate for the plaintiff has also argued that if the date of
marriage is taken into consideration, i.e. 22.04.2004 and thereafter the
parties have lived together from 22.04.2004 to 20.05.2004 and thereafter
from 25.07.2004 to 24.08.2004 and therefore there is a clear cohabitation
between the parties for the period of two months and thereafter after
waiting for at least for 10-12 years plaintiff husband filed suit for divorce.
5.3 Learned advocate for the plaintiff has also argued that the appellate
Court had given full opportunity to defendant wife to put forward her
case before the appellate Court. However, defendant wife neither
bothered to appear in the matter or represent her case before the appellate
Court. Moreover, if the Record and Proceedings before the appellate
Court are taken into consideration, the matter was placed for order from
20.07.2018 till date 28.06.2021 i.e. date when the said appeal was
disposed of, the defendant wife had not bothered to appear in the matter
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and, therefore, after re-appreciating the evidence and taking into
consideration the fact that the defendant wife has deserted the plaintiff
husband the appellate Court has granted divorce.
5.4 Learned advocate for the plaintiff has also argued that the appellate
Court has taken into consideration the fact that there was desertion
between the parties for more than six years at the time when the said
appeal was decided by the first appellate Court and the defendant wife
has not taken any steps for restitution of conjugal right and if the
defendant wife really wanted restitution, the defendant wife could have
come forward with the case that she tried her level best to come and stay
with the husband but her husband did not agree to the same.
5.5 Learned advocate for the plaintiff has also argued that after the
disposal of the application under Section 125 of the Cr.P.C. the defendant
wife had filed proceedings under Section 127 fo the Cr.P.C. and in the
said proceedings, on 20.01.2022, plaintiff husband filed written statement
vide Exh.15, in the said proceedings and in the said proceedings it is
stated that the plaintiff husband has remarried after waiting for appeal
period of second appeal. Therefore, the wife was aware of the fact that
the plaintiff husband has remarried but thereafter also appeal was not
filed within a period of limitation and that the said second appeal was
filed on 17.10.2020 i.e. beyond the period of limitation and, therefore, if
the present Second Appeal is admitted, the same will cause injustice to
the plaintiff husband therefore also present second appeal is required to
be dismissed.
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5.6 Learned advocate for the plaintiff husband also argued that in the
oral evidence of the plaintiff, the plaintiff husband has stated that he had
tried a lot to get back the defendant wife and the said statement has not
been cross-examined by defendant wife and, therefore, the said fact has
been proved by the plaintiff husband and, therefore, the judgment and
decree passed by the appellate Court whereby the judgment and decree of
the trial Court has been reversed does not require any interference and,
therefore, the present Second Appeal is required to be dismissed.
6.1 Having heard learned advocates for the parties, having gone
through the judgment and decree passed by the trial Court and the
judgment and decree passed by the appellate Court, it appears that the
appellate Court has taken into consideration the fact that the co-habitation
between the plaintiff and defendant is for two months from the date of
marriage.
6.2 There is nothing on record to show and suggest that defendant wife
wants to cohabit with the plaintiff husband. If the oral evidence of the
plaintiff is taken into consideration, in examination-in-chief, he has stated
at Exh.26 that defendant wife has permanently shifted to her father's
house taking all her belongings with her.
6.3 It has also been stated in the examination-in-chief that the
defendant is of suspicious mind and is quarrelsome and at para:5 of the
examination-in-chief, the plaintiff husband has stated that after defendant
left matrimonial home, he had tried several time to bring the defendant
wife back to his house and the fact remains that the fact has not been
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challenged by the defendant wife, while cross-examining the plaintiff's
witness.
6.4 If the entire cross-examination of the plaintiff husband is taken into
consideration, in the entire cross, questions that were asked were as to
physical and mental violence of the plaintiff and his family members
towards defendant, and the said facts have not been proved either by
defendant in her examination vide Exh.35, nor in examination of father of
the defendant at Exh.39 and, therefore, the appellate Court has rightly
come to the conclusion that the defendant has deserted the plaintiff
husband for continuous period of not less than two years preceding the
presentation of the petition.
6.5 The other factors which also have to be considered is that the
husband has waited at least around 10-12 years before filing petition for
divorce on the ground of desertion and mental cruelty and, therefore, the
fact that at this stage, defendant wife intends her willingness to cohabit
with the plaintiff husband is only after thought and by her conduct, the
same is not proved by the defendant wife.
6.6 In the case of Jaichand (Dead) through Lrs and Other v.
Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the
Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100
CPC, the High Court cannot interfere with
the findings of fact arrived at by the first
Appellate Court which is the final Court of
facts except in such cases where such
findings were erroneous being contrary to
the mandatory provisions of law, or its
settled position on the basis of the
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pronouncement made by the Apex Court or
based upon inadmissible evidence or
without evidence."
6.7 Therefore, also the defendant has miserably failed to show that
there is any substantial question of law involved in the present appeal and
the substantial question of law which has been suggested in the memo of
appeal are also not substantial question of law and on facts and the said
factual aspect have well been considered by the First Appellate Court
and, therefore, the present appeal requires to be dismissed.
7. Under the circumstances, this Second Appeal is devoid of any
substantial question of law. The first appellate Court has rightly decided
the issue between the parties in the right perspective and as stated above
no substantial question of law arises in the present appeal. The present
appellant has failed to prove his case before the learned first appellate
Court. This Court does not find any substance in the present Second
Appeal as the same is devoid of any merit both on facts and law and the
same is dismissed at admission stage.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
