1 fca143.04 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.143 OF 2004 Sou. Jyotidevi R. Garg ) Aged 32 years, Occ.Household ) Residing at C/o Shivkumar Sadgerum) Goyal, 74, Gawdewada, Yerawada, ) Pune – 411 006. ) ....Appellant. Vs. Mr. Rajbir Ramkaran Garg ) Aged 34 years, Occ.Business ) Residing at/available at Garg ) General Stores, Malwadi, Dehugaon, ) Pune – 412 109 ) ....Respondent. Mr. A.M.Joshi for Appellant. None for the respondent. CORAM:- A.M.KHANWILKAR AND A.A.SAYED, JJ DATED:- JULY 14, 2010 JUDGMENT: (Per A.M.Khanwilkar, J) 1. This appeal takes exception to the Judgment and Decree passed by the Family Court No.2, Pune dated 3rd September, 2004 in Petition A No.553/2001. The Family Court has dismissed the Petition preferred by the Appellant wife for 2 fca143.04 divorce on the ground of cruelty and desertion within the meaning of Section 13(1)(i-a) and (i-b) of Hindu Marriage Act. However, during the course of argument of this appeal, Counsel for the Appellant submitted that the Appellant would be content with the decree of divorce on the ground of desertion. In his submission, the pleadings and evidence on record were more than sufficient to grant decree of divorce on the said ground. In the circumstances, we have confined our discussion to the ground of desertion within the meaning of section 13(1) (i-b) of the Act. 2. In the Petition as filed, it is stated that the Respondent-husband left the matrimonial house in January, 1999 without reasonable cause and without consent of the Appellant wife. It is also stated that since the time the husband left the company of the wife in January, 1999, he completely neglected the Appellant. As a result, the Appellant sent legal notice dated 15th June, 2001. In reply to the said notice vide letter dated 18th July, 2001, the Respondent denied the allegations made against him and also stated that he was willing to resume co-habitation. The Appellant however, proceeded to institute the Petition on 7th August, 2001 reiterating the allegations made in the legal notice sent to the Respondent both on the ground of cruelty and desertion. The relevant assertions in the context of ground of desertion are found in paragraph-8 to 10 of 3 fca143.04 the Petition filed by the Appellant-wife. This Petition however, was resisted by the Respondent by filing Written Statement. In the Written Statement, we find that there is general denial of the allegation of desertion, as can be noticed from paragraph-5 thereof. In paragraph-7 and paragraph-9 of the Written Statement, the specific case made out by the Respondent is that he was staying in the matrimonial home alongwith the Appellant-wife until December, 1999, when he was forcibly thrown out from the said place by the Appellant and her relative. The Petition proceeded for trial. 3. In support of the allegations made in the Petition, the Appellant entered the witness box and reiterated the allegations made in the Petition to the effect that the Respondent has deserted her in January, 1999 without reasonable cause and without her consent and further he has neglected the Appellant thereafter. The Appellant has been cross-examined by the Respondent. During the cross- examination, the Appellant was asked as to whether the Respondent resided with her for six years. The tenor of the cross examination presupposes that the Respondent cohabited with the Appellant only for six years from the date of marriage in April, 1992. Be that as it may, in so far as the case made out by the Appellant about her desertion, besides denial, no material question has been put during the cross-examination. Only suggestion was put at the end that the 4 fca143.04 cousin brother of the Appellant and the Appellant threw out the Respondent out of the house after assaulting him in December, 1999, which suggestion however, has been denied by the Appellant. The Respondent entered the witness box and examined himself on 25th February, 2004. His examination-in-chief was recorded on that date. But thereafter, the Respondent remained absent and did not make himself available for cross examination. In this backdrop, the trial Court discarded the evidence of the Respondent and proceeded to consider the matter only on the basis of the pleadings of both sides and evidence produced by the Appellant. 4. While considering the issue of desertion, the trial Court in the first place has noticed that the fact that there was separation between the parties over two years before the date of institution of the Petition on 7th August, 2001 has been proved. The trial Court then took into account the deposition of the Appellant that they started residing separately at Yerwada when the Respondent’s father gave them Rs. 2,00,000/- for vacating his house. The Respondent was lazy, did not work in her father’s shop or in the bank and left house in January, 1999. The trial Court then referred to cross-examination of the Appellant where she has denied the suggestion that in December, 1999 her cousin brother turned out the Respondent from the house after assaulting him. The trial Court has also 5 fca143.04 noticed that the Appellant denied that the Respondent came to take her and requested her uncle Khushiram to send her. Thereafter, reference is made to the legal notice sent by the Appellant Exh. 23, wherein it is mentioned that she was not ready to reside with the Respondent for fear to her life. On the other hand, the Respondent was ready to reside with her as is stated in the reply Exh. 24. The trial court then has gone astray in observing that the Appellant has also deposed that the Respondent left house and took away all the money but was not in a position to explain as to how much money was taken away by the Respondent, moreso, when she herself has pleaded that he was not earning. The said aspect has no bearing on the issue of desertion. 5. We have noticed that although the Respondent was attempted to be served with the present appeal, that did not fructify. As a result, this Court was eventually required to permit the Appellant to serve the Respondent by publication. Inspite of publication, the Respondent has not chosen to appear in the present proceedings. As aforesaid, even before the trial Court, the Respondent allowed the matter to go in default and did not make himself available for cross-examination. In that sense, the Respondent has failed to establish the case pleaded by him that he was thrown out of the premises by the Appellant wife and her relative. Considering this position, we have no 6 fca143.04 hesitation in agreeing with the finding recorded by the trial Court that the Appellant and Respondent had separated for over two years before the institution of the Petition on 7th August, 2001. The question is: whether the Respondent left matrimonial house without reasonable cause and without the consent of the Appellant or against the wishes of the Appellant and further, whether his conduct amounts to willful neglect of the Appellant. In the Petition as filed, it is clearly asserted by the Appellant that the Respondent removed himself from the matrimonial house without reasonable cause from January, 1999. It is also stated that he has deserted the Appellant without her consent and continued to neglect her throughout till institution of the Petition and also thereafter. The Respondent resisted these allegations. However, he did not bother to appear in the proceedings although he chose to enter the witness box for recording his examination in chief. Naturally, therefore, his evidence has been discarded. That leave us with his only written statement. The assertions made therein with regard to the ground of desertion have not been established by the husband. On the other hand, the plea taken by the Appellant in her petition for divorce has been restated and established in her evidence. The Appellant made herself available for cross-examination. She has stood the cross examination. On analysis of the cross examination, it is noticed that besides denial, only suggestion is put to the Appellant as to whether the Respondent was 7 fca143.04 thrown out of the house after assaulting him in December, 1999. That suggestion has been denied. That fact has not been established by the Respondent at all. As no other justification has been offered by the Respondent, we are left with no option but to hold that the Respondent deserted the Appellant from January, 1999 without reasonable cause and without her consent. Further, the Respondent has neglected the Appellant since January, 1999. He has not bothered to even offer maintenance amount to the Appellant, especially when the son born out of the wedlock was in the custody of and looked after by the Appellant. The Respondent has not even bothered to find out the well being of the only son and of the Appellant. In the circumstances, the Appeal filed by the wife ought to succeed. 6. Accordingly, the impugned Judgment and Decree is set aside. Instead, the Petition A No. 553/2001 is allowed. It is ordered that the marriage between the Appellant and Respondent dated 18th April, 1992 is dissolved on the ground of desertion of the Appellant. No order as to cost. (A.A.SAYED, J) (A.M.KHANWILKAR, J)