: 1 : IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE SIDE SIDE SIDE FAMILY FAMILY FAMILY COURT COURT COURT APPEALNO.10 OF 2004 APPEALNO.10 OF 2004 APPEALNO.10 OF 2004 SHRI SHRI SHRI NITIN VISHWAS GADGIL NITIN VISHWAS GADGIL NITIN VISHWAS GADGIL ......... APPELLANT. APPELLANT. APPELLANT. VS. VS. VS. MRS. MRS. MRS. NISHIGANDHA N. GADGIL NISHIGANDHA N. GADGIL NISHIGANDHA N. GADGIL ......... RESPONDENT. RESPONDENT. RESPONDENT. MR.SAGAR MR.SAGAR MR.SAGAR JOSHI I/B. S.M.OKA FOR THE APPELLANT. JOSHI I/B. S.M.OKA FOR THE APPELLANT. JOSHI I/B. S.M.OKA FOR THE APPELLANT. NONE NONE NONE FOR THE RESPONDENT. FOR THE RESPONDENT. FOR THE RESPONDENT. CORAM CORAM CORAM : : : J.N.PATEL & AMJAD A. SAYED, JJ. J.N.PATEL & AMJAD A. SAYED, JJ. J.N.PATEL & AMJAD A. SAYED, JJ. DATE DATE DATE : June 13, 2007. : June 13, 2007. : June 13, 2007. P.C. P.C. P.C. 1.1.1. Heard Heard Heard the learned Counsel for the appellant. the learned Counsel for the appellant. the learned Counsel for the appellant. None None None for the Respondent. for the Respondent. for the Respondent. 2.2.2. The The The appellant has preferred this appeal against appellant has preferred this appeal against appellant has preferred this appeal against the the the Judgment and Order, dated 21st May, 2003 passed by Judgment and Order, dated 21st May, 2003 passed by Judgment and Order, dated 21st May, 2003 passed by the the the Family Court No.2, Pune in Petition A- No.101 of Family Court No.2, Pune in Petition A- No.101 of Family Court No.2, Pune in Petition A- No.101 of 2002. 2002. 2002. 3.3.3. The The The appellant -husband filed the petition under appellant -husband filed the petition under appellant -husband filed the petition under : 2 : Section Section Section 13(1)(i-b) of the Hindu Marriage Act seeking 13(1)(i-b) of the Hindu Marriage Act seeking 13(1)(i-b) of the Hindu Marriage Act seeking divorce divorce divorce against his wife. against his wife. against his wife. 4.4.4. ItItIt is not disputed that the parties got married is not disputed that the parties got married is not disputed that the parties got married atatat Sangli on 14.5.1996 and last resided at Pune. The Sangli on 14.5.1996 and last resided at Pune. The Sangli on 14.5.1996 and last resided at Pune. The appellant-husband appellant-husband appellant-husband was was was required to visit Tokyo, Japan, a required to visit Tokyo, Japan, a required to visit Tokyo, Japan, a foreign foreign foreign country for business purposes and the country for business purposes and the country for business purposes and the respondent respondent respondent was residing with her parents and was was residing with her parents and was was residing with her parents and was serving serving serving there. However, the appellant -husband could there. However, the appellant -husband could there. However, the appellant -husband could not not not take her to Tokyo, Japan. The Respondent was, at take her to Tokyo, Japan. The Respondent was, at take her to Tokyo, Japan. The Respondent was, at the the the relevant time, pregnant and she delivered a son on relevant time, pregnant and she delivered a son on relevant time, pregnant and she delivered a son on 17.2.1998 17.2.1998 17.2.1998 at Sangli, named Ninad, who is at present at Sangli, named Ninad, who is at present at Sangli, named Ninad, who is at present staying staying staying with the appellant-husband. It is the case of with the appellant-husband. It is the case of with the appellant-husband. It is the case of the the the appellant-husband that while he was required to appellant-husband that while he was required to appellant-husband that while he was required to visit visit visit foreign countries due to exigencies of his foreign countries due to exigencies of his foreign countries due to exigencies of his service, service, service, on on on his return to India, he used to reside with his return to India, he used to reside with his return to India, he used to reside with his his his family and on one occasion, he went to Australia family and on one occasion, he went to Australia family and on one occasion, he went to Australia and and and taken his wife and son alongwith him and stayed in taken his wife and son alongwith him and stayed in taken his wife and son alongwith him and stayed in Sydney Sydney Sydney from 13.9.99 to 23.9.1999 and, thereafter, from 13.9.99 to 23.9.1999 and, thereafter, from 13.9.99 to 23.9.1999 and, thereafter, returned returned returned to to to India and stayed at Pune up to 3.10.99. He India and stayed at Pune up to 3.10.99. He India and stayed at Pune up to 3.10.99. He again again again went to Australia and resided there from 4.10.99 went to Australia and resided there from 4.10.99 went to Australia and resided there from 4.10.99 toto to 25.10.99 and returned to India to attend the 25.10.99 and returned to India to attend the 25.10.99 and returned to India to attend the marriage marriage marriage of Respondent’s brother at Sangli. of Respondent’s brother at Sangli. of Respondent’s brother at Sangli. 5.5.5. ItItIt is the case of the appellant-husband that is the case of the appellant-husband that is the case of the appellant-husband that the the the respondent respondent respondent was very much disturbed as the appellant was very much disturbed as the appellant was very much disturbed as the appellant : 3 : given given given up up up his job at Sydney as she was fascinated by the his job at Sydney as she was fascinated by the his job at Sydney as she was fascinated by the western western western life and desired that the appellant should get life and desired that the appellant should get life and desired that the appellant should get a job in foreign country. She wanted to enjoy the job in foreign country. She wanted to enjoy the job in foreign country. She wanted to enjoy the freedom freedom freedom from all responsibilities and bondages, from all responsibilities and bondages, from all responsibilities and bondages, including including including the the the responsibility of child Ninad. It is the responsibility of child Ninad. It is the responsibility of child Ninad. It is the case case case of the appellant that on 14.12.1999, the of the appellant that on 14.12.1999, the of the appellant that on 14.12.1999, the Respondent-wife Respondent-wife Respondent-wife abandoned the appellant-husband leaving abandoned the appellant-husband leaving abandoned the appellant-husband leaving the the the child Ninad, who was ultimately found at in Child child Ninad, who was ultimately found at in Child child Ninad, who was ultimately found at in Child Care Care Care Centre at Pune. Since then, neither the Centre at Pune. Since then, neither the Centre at Pune. Since then, neither the respondent-wife respondent-wife respondent-wife is traceable nor her whereabouts are is traceable nor her whereabouts are is traceable nor her whereabouts are known. known. known. Therefore, the appellant was left with no Therefore, the appellant was left with no Therefore, the appellant was left with no alternative alternative alternative but to approach this Court seeking divorce but to approach this Court seeking divorce but to approach this Court seeking divorce on on on the ground of cruelty and desertion. the ground of cruelty and desertion. the ground of cruelty and desertion. 6.6.6. The The The Family Court dismissed the petition of the Family Court dismissed the petition of the Family Court dismissed the petition of the appellant, appellant, appellant, inspite of taking cognizance of the fact, inspite of taking cognizance of the fact, inspite of taking cognizance of the fact, which which which was reflected in the report of the Counsellor was reflected in the report of the Counsellor was reflected in the report of the Counsellor that that that the respondent wife is not traceable. the respondent wife is not traceable. the respondent wife is not traceable. 7.7.7. The The The learned Judge of the Family Court took a learned Judge of the Family Court took a learned Judge of the Family Court took a technical technical technical view of the matter and came to a conclusion view of the matter and came to a conclusion view of the matter and came to a conclusion that that that the appellant-husband has not been able to prove the appellant-husband has not been able to prove the appellant-husband has not been able to prove the the the cruelty. In the view of the learned Judge of the cruelty. In the view of the learned Judge of the cruelty. In the view of the learned Judge of the Family Family Family Court abandoning the child and husband, by Court abandoning the child and husband, by Court abandoning the child and husband, by itself, itself, itself, could not lead to an inference of cruelty and could not lead to an inference of cruelty and could not lead to an inference of cruelty and further further further merely because the wife was missing or that merely because the wife was missing or that merely because the wife was missing or that : 4 : there there there were quarrels between them also cannot be a were quarrels between them also cannot be a were quarrels between them also cannot be a justification justification justification to grant relief of divorce on the ground to grant relief of divorce on the ground to grant relief of divorce on the ground of of of cruelty and desertion. cruelty and desertion. cruelty and desertion. 8.8.8. The The The learned Counsel appearing for the learned Counsel appearing for the learned Counsel appearing for the appellant- appellant- appellant- husband husband husband submitted that the whole approach of submitted that the whole approach of submitted that the whole approach of the the the Family Court is not correct and that the Family Court is not correct and that the Family Court is not correct and that the authorities authorities authorities cited cited cited in the impugned Judgment and Order by in the impugned Judgment and Order by in the impugned Judgment and Order by the the the Family Court do not come in the way of the Family Court do not come in the way of the Family Court do not come in the way of the appellant appellant appellant in seeking divorce. It is further submitted in seeking divorce. It is further submitted in seeking divorce. It is further submitted that that that the the the ratio in the said authorities has been wrongly ratio in the said authorities has been wrongly ratio in the said authorities has been wrongly applied applied applied to the facts of this case and therefore, the to the facts of this case and therefore, the to the facts of this case and therefore, the appeal appeal appeal deserves to be allowed. deserves to be allowed. deserves to be allowed. 9.9.9. During During During the pendency of this appeal before this the pendency of this appeal before this the pendency of this appeal before this Court, Court, Court, all attempts were made to serve the respondent all attempts were made to serve the respondent all attempts were made to serve the respondent wife wife wife including substitute service through publication including substitute service through publication including substitute service through publication but but but the whereabouts of the respondent-wife are not the whereabouts of the respondent-wife are not the whereabouts of the respondent-wife are not known. known. known. The learned Counsel appearing for the The learned Counsel appearing for the The learned Counsel appearing for the appellant- appellant- appellant- husband husband husband submitted that the appellant-husband submitted that the appellant-husband submitted that the appellant-husband contacted contacted contacted the parents-in-law i.e. the parents of the the parents-in-law i.e. the parents of the the parents-in-law i.e. the parents of the respondent-wife respondent-wife respondent-wife but they are also not able to give any but they are also not able to give any but they are also not able to give any clue clue clue about her whereabouts. about her whereabouts. about her whereabouts. 10. 10. 10. ItItIt is further submitted that the child Ninad is is further submitted that the child Ninad is is further submitted that the child Ninad is staying staying staying with the appellant-husband and under these with the appellant-husband and under these with the appellant-husband and under these : 5 : circumstance, circumstance, circumstance, the Court may allow the appeal. The the Court may allow the appeal. The the Court may allow the appeal. The learned learned learned Counsel for the appellant-husband has also Counsel for the appellant-husband has also Counsel for the appellant-husband has also placed placed placed reliance on the decision of the Apex Court in reliance on the decision of the Apex Court in reliance on the decision of the Apex Court in case case case of G.V.N.KAMESHWARRAO VS. G.JABILLI, reported in of G.V.N.KAMESHWARRAO VS. G.JABILLI, reported in of G.V.N.KAMESHWARRAO VS. G.JABILLI, reported in (2002) (2002) (2002) 2 SCC 296. It is submitted that the fact in the 2 SCC 296. It is submitted that the fact in the 2 SCC 296. It is submitted that the fact in the case case case supra, supra, supra, broadly tally with the facts of the present broadly tally with the facts of the present broadly tally with the facts of the present case case case and as the wife has deserted the appellant- and as the wife has deserted the appellant- and as the wife has deserted the appellant- husband husband husband and and and her whereabouts are not known, there was no her whereabouts are not known, there was no her whereabouts are not known, there was no reason reason reason for the Family Court to refuse the prayer for for the Family Court to refuse the prayer for for the Family Court to refuse the prayer for divorce, divorce, divorce, on both the counts i.e. cruelty and on both the counts i.e. cruelty and on both the counts i.e. cruelty and desertion. desertion. desertion. 11. 11. 11. Our Our Our attention is also drawn to a Certificate, attention is also drawn to a Certificate, attention is also drawn to a Certificate, issued issued issued by the Police Inspector, Yerwada Police Station by the Police Inspector, Yerwada Police Station by the Police Inspector, Yerwada Police Station on on on 2.5.2001, which is addressed to the father of the 2.5.2001, which is addressed to the father of the 2.5.2001, which is addressed to the father of the appellant appellant appellant as regards the whereabouts of their as regards the whereabouts of their as regards the whereabouts of their daughter-in-law daughter-in-law daughter-in-law that that that she has not been found yet and the she has not been found yet and the she has not been found yet and the search search search of the lady in the said missing file is of the lady in the said missing file is of the lady in the said missing file is continued. continued. continued. 12. 12. 12. Therefore, Therefore, Therefore, taking into consideration the fact taking into consideration the fact taking into consideration the fact that that that the wife has abandoned not only the appellant but the wife has abandoned not only the appellant but the wife has abandoned not only the appellant but also also also her minor child and that the whereabouts of the her minor child and that the whereabouts of the her minor child and that the whereabouts of the respondent-wife respondent-wife respondent-wife are not known inspite of all efforts are not known inspite of all efforts are not known inspite of all efforts being being being made to trace her out, we do not find any made to trace her out, we do not find any made to trace her out, we do not find any justification justification justification in denying to the appellant, the decree in denying to the appellant, the decree in denying to the appellant, the decree : 6 : of of of divorce, if not on the count of cruelty at least on divorce, if not on the count of cruelty at least on divorce, if not on the count of cruelty at least on the the the ground ground ground of desertion, as the whereabouts of the wife of desertion, as the whereabouts of the wife of desertion, as the whereabouts of the wife are are are not known for more than seven years. Therefore, not known for more than seven years. Therefore, not known for more than seven years. Therefore, the the the appeal deserves to be allowed. Hence, the Order :- appeal deserves to be allowed. Hence, the Order :- appeal deserves to be allowed. Hence, the Order :- ORDER ORDER ORDER The The The appeal is allowed. appeal is allowed. appeal is allowed. ItItIt is declared that the marriage solemnised is declared that the marriage solemnised is declared that the marriage solemnised between between between the appellant and the respondent on the appellant and the respondent on the appellant and the respondent on 14.5.1996, 14.5.1996, 14.5.1996, stands dissolved by a decree of stands dissolved by a decree of stands dissolved by a decree of divorce. divorce. divorce. Decree Decree Decree be be be drawn up accordingly with no order as drawn up accordingly with no order as drawn up accordingly with no order as toto to costs. costs. costs. ..... ..... ..... [Amjad [Amjad [Amjad A.Sayed, J] A.Sayed, J] A.Sayed, J] [J.N.Patel, [J.N.Patel, [J.N.Patel, J.] J.] J.]