Gujarat High Court
Diken Surendrabhai Barot vs Toral Ashokbhai Barot on 3 February, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
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C/FA/1316/2019 JUDGMENT DATED: 03/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1316 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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DIKEN SURENDRABHAI BAROT
Versus
TORAL ASHOKBHAI BAROT
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Appearance:
DARSHIT R BRAHMBHATT(8011) for the Appellant(s) No. 1
MR. NISARG N JAIN(8807) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 03/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. With consent of learned advocates appearing for
the respective parties, the matter is taken up for final
hearing.
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2. Heard Mr.Darshit Brahmbhatt, learned counsel
for the appellant and Mr.Nisarg Jain, learned counsel for
the respondent.
3. Admit. Mr.Nisarg Jain, learned counsel waives
service of notice of admission for and on behalf of
respondent.
4. The present First Appeal has been filed by the
appellant - husband challenging the judgment and decree
of the Family Court at Nadiad dated 11.12.2017, by
which, the suit of the appellant for claiming a decree of
divorce on the ground of desertion under the relevant
provisions of the Hindu Marriage Act, 1955, has been
dismissed.
5. Briefly stated, the application for divorce was
filed by the appellant on 27.06.2016. In the application,
the appellant claimed that the respondent had deserted
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him for a period of over 2 years. Therefore, the appellant
- husband contended that he was entitled to a decree of
divorce under Section 13(1)(ib) of the Hindu Marriage Act.
6. Assessment of evidence on record based on the
examination and cross-examination of witnesses has been
been done by the Family Court. Perusal of the judgment
would indicate that it is an admitted fact that the
application for divorce was filed on 27.06.2014, whereas
the couple had stayed together upto 27.11.2014. Therefore,
the statutory period of desertion of two years had not
been completed which persuaded the Family Court not to
entertain the application.
7. In light of the decision of the Division Bench of
this Court in the case of Prashant Arvindbhai Halari Versus
Nina Vivek Mushale passed in First Appeal No.1481 of
2016 on 28.08.2020, wherein the facts are similar to the
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present appeal. Relevant paras 29 and 30 of the said
judgment reproduced as under:-
29. It is also admitted in the cross-examination that
the respondent had taken the treatment of family
planning in July 2009 and also in August 2009 at
Pune and the appellant has further stated that he
had gone to Pune to the Respondent and treatment
was taken. He has also admitted that the
application for divorce is filed in December 2009.
Thus, from the very admission in the cross-
examination at exhibit 41, it clearly transpires that
in the month of August 2009, the appellant had
gone to the house of respondent at Pune and
treatment for family planning was taken at Pune in
the month of August 2009. The appellant has also
admitted that in the month of October 2009, he
went to Dubai with respondent wife. The fact
remains that the application for divorce on the
ground of desertion was filed by the appellant on
29.12.2009. Hence, there was no continuous
desertion for a period of two years as provided
under section 13(1)(ib). The admission is made by
the appellant in his cross-examination that the
respondent accompanied the appellant on official
tour of Dubai in the Month of October 2009. The
learned Family Court has rightly appreciated the
evidence on record and more particularly the
admission made by the appellant in his oral
testimony at exhibit 41 and therefore has correctly
come to the conclusion that the desertion as
provided under section 13(1)(ib) is not proved by
the appellant.
30. Upon reappreciation of the evidence, it cannot
be said that the conduct of the respondent wife is
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indicative of a firm determination not to return to
the marital home and discharge obligations attached
thereto. On the contrary, the evidence shows that
the respondent was willing to expand the family for
which the appellant also attended the treatment
being given at Ahmedabad and Pune and therefore,
the Family Court has rightly come to the conclusion
that the appellant has not been able to prove
desertion as provided under section 13(1)(ia) of the
Act. Upon re-appreciation of the evidence on
record, the finding on desertion arrived at by the
learned Family Court including the explanation to
section 13(1)(ib) is rightly appreciated by the Family
Court, which does not require any interference.
8. In view of the above, we are of the opinion that
the learned Judge of the Family Court has committed no
error. The First Appeal is accordingly dismissed. No order
as to costs.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
MANOJ
