1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.35 OF 2006 Radhabai Shrishailam Kashiguru .. Appellant Versus Shrishailam Bugayya Kashiguru .. Respondent Mr.Anand Kulkarni for appellant. Mr.M.R.Deshpande for respondent. CORAM : S.C.DHARMADHIKARI, J. DATE : 22nd August, 2007. P.C. . The Appellant wife has challenged in this second appeal the judgement and order rendered against her in matrimonial proceedings granting 2 Decree for Divorce in favour of the Respondent-husband on the ground of cruelty. 2. Mr.Kulkarni would urge that the substantial question of law is that the original proceeding was remanded, as is clear from the order passed by the lower appellate court, on the issue of desertion. While, additional issue was framed of desertion and the matter was remanded, the trial court once against considered both grounds viz., cruelty and desertion and proceeded to grant a decree in favour of the respondent. He submits that when the remand was limited to the ground of desertion and considering the appellate order, it was not open for the trial court to have considered both grounds and pass the impugned decree. He submits that even the lower appellate court has erred in confirming the judgement on the ground of cruelty and desertion. 3. With the assistance of the learned 3 Advocate for both sides I have perused the judgements and decrees of the trial court and lower appellate court. Since the proceedings are under Hindu Marriage Act and the husband is seeking a decree for divorce on the ground of cruelty and desertion, several attempts were made to find out an amicable solution to the dispute. More so, when from this wedlock there is a daughter aged 22 years who is of marriageable age. However, both sides inform me that settlement is not possible. In the above circumstances, the second appeal is placed for admission. 4. The lower appellate court has clearly observed that apart from the deposition of the husband, there is enough material to hold that he has been treated with cruelty. Hindu Marriage Petition No.167 of 1994 was preferred earlier for restitution of conjugal rights wherein compromise terms were filed and the petition was withdrawn. 4 This was on the basis that the wife would resume co-habition. It appears that she did not resume it and, therefore, public notice was given and later on a complaint was filed with the police. 5. There was remand by the lower appellate court by an order dated 6th July 2004. Therefore, the husband once again stepped into the box and was cross examined. The Court below has observed that insofar as cruelty is concerned, wife was leaving the matrimonial house frequently. The daughter was born on 20th July 1985. Whenever, the wife left the matrimonial home, she would go and reside with her brothers who are in powerloom business and have several properties. The husband has specifically deposed that being handicapped and from a poor family, the wife was not interested in continuing with the marriage. There are instances cited where the husband’s attempt to get her back have failed. In this behalf reference is also made to 5 the second round of litigation whereafter co-habition resumed for about three to four months and once again she left the society of husband. This version of the husband is uncontroverted. The wife is residing with her brothers. In such circumstances, the conclusion drawn that she has treated the husband with cruelty cannot be faulted. This is not a court where re-appreciation and re-appraisal of the materials can take place. There is no denial of the above facts even when it comes to the issue of desertion. The attempts at mediation by family members and all have been referred to extensively to record findings against the Appellant-wife. In such circumstances, I am of the opinion that the second appeal cannot be entertained. The same is devoid of any merits and is accordingly dismissed. No costs. (S.C.DHARMADHIKARI, J)