1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.899 OF 2008 Angad s/o Panditrao Mali, Age: 39 years, Occ: Service, R/o. Village Ekurga, Tq. & Dist. Latur, At present R/o. Vinayak Nagar, Latur. .. Appellant Versus Manisha w/o Angad Mali, Aged : 30 years, Occ: Nil, R/o. Mauli Niwas, Near New Masjid, Kranti nagar, Khadgaon, At Latur Dist.Latur. .. Respondent ... Mr. N.D. Kendre, Advocate for the appellant. Mr. Amit Deshpande, Advocate for respondent. ... CORAM : K.K. TATED, J. RESERVED ON : 13/07/2009 PRONOUNCED ON: 17/07/2009 PER COURT : 1. Heard learned Counsel for the parties. 2. Present Second Appeal is preferred by the original petitioner against the judgment and decree dated 08-08-2008 passed by the District 2 Judge-2, Latur in R.C.A. No. 137/2007 arising out of the judgment and decree dated 18-07-2007 passed by the Civil Judge, Senior Division, Latur in H.M.P. No. 50/2006. The appellant is the original petitioner and the respondent is the original respondent. The appellant filed H.M.P. No. 50/2006 for divorce under Section 13 of the Hindu Marriage Act in the Court of Civil Judge, S.D. Latur on the ground that the respondent deserted him without any cause for more than two years. The marriage took place between the appellant and respondent on 15-03-1996. Out of the said wedlock, the respondent has given birth to four children namely Akash, son aged 8 years, Bhagyashree, daughter aged 6 years, Devanand, son aged 5 years and Govind, son aged 3 years. 3. It is the case of the appellant that after marriage on 15-03-1996, the respondent started cohabiting with the appellant in his house in Vyankateshnagar, Latur. The appellant is a 3 Karta of his family. The appellant is having his parents who are aged and the appellant has two brothers. All those family members were residing with the appellant. The respondent resided with them for about one year. After one year, she started quarreling with his parents and insisted on the appellant to reside separately. On 30-05-1997 the respondent delivered first child Akash and thereafter she started deserting the appellant and she started to follow instructions of her parents who insisted the respondent to leave the house of the appellant and to come to their house and accordingly, the respondent did the same. Therefore, the appellant was compelled to file H.M.P. No. 69/1998 before the Court of the Civil Judge, Senior Division, at Latur. At that time, the respondent realised the gravity and consequences of the petition and therefore, she arrived at an amicable settlement and came back to cohabit with the appellant thinking that thereby the appellant might withdraw the said 4 petition. After some time, the respondent in the year 2001 went to her parent's house and resided there for about one year. During this period, the appellant tried to meet the respondent but the respondent refused to admit the appellant in her house. Therefore, the appellant was compelled to issue notices to the parents of the respondent dated 14-09-2001, 05-10-2001 and 26-11-2002. All these notices were actually received by the respondent but she did not reply. Because of such type of attitude of the respondent, it became impossible for the appellant to take care of his parents as well as to enjoy his life. After issuing notices, with the help of relatives, the appellant pursuaded the respondent to cohabit with him. Therefore, in November 2002, she came back to the appellant's house. Thereafter, the appellant started residing happily with the respondent and his family members. But suddenly on 09-03-2004 when the appellant was on duty, the respondent left the house of the appellant and filed false 5 complaint before the police under Section 498-A of the Indian Penal Code by putting forward the false grounds and caused to register the criminal case against the appellant and his parents. Thereafter, the respondent filed M.A. No. 208/2004 for maintenance claiming for herself and on behalf of four minor children. It is the case of the appellant that in the said petition, the respondent in her examination clearly stated that she did not want to joint appellant's company. Therefore, the appellant filed present petition for divorce on the ground of desertion. 4. The respondent appeared in the said petition and denied all the allegations. The respondent filed her Written Statement dated 21-07-2006 and opposed the divorce petition of the appellant. The respondent submitted that during the course of cohabitation and particularly after the period of two years of the marriage, the appellant on the instigation 6 of his parents and brothers started threatening her with cruelty and also put illegal demands to her to bring money from her parents to purchase colour T.V., and motor cycle etc. Not only that, she was kept starving and beat her on many occasions and also drove her away from the house for not meeting his illegal demands. On the festival of Gudi Padva in 2004, the appellant drove out the respondent from his house alongwith minor children and from that date, the respondent and her children were with the parents of the respondent. Thereafter, the respondent personally and through her relatives tried to persuade the appellant to allow her to join his company. The appellant flatly refused to allow the respondent to join his company and insisted on her to sign the divorce papers. After all efforts were over to settle the matter, the respondent filed criminal complaint against the appellant for cruelty and also filed application in the Court of law for maintenance for herself and for four minor children. During 7 this period, the appellant never cared for the maintenance of the respondent and the four minor children. The appellant to avoid the payment of maintenance filed the present case. The respondent further stated that she was always ready and willing to cohabit with the appellant brushing aside all the allegations made by him against her. 5. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. It is also necessary that there must be a determination to put an end to marital relation and cohabitation. In case of desertion heavy burden lies upon a petitioner. The petitioner is required to prove four essential conditions, namely (1) the factum of separation; (2) animus deserendi; (3)absence of his or her consent; and (4) absence of his or her conduct giving reasonable cause to the deserting spouse 8 to the matrimonial home. The desertion must be proved beyond any reasonable doubt and a rule of prudence the evidence of the petitioner shall be corroborated. In the present case, the respondent - wife specifically stated in her Written Statement that she is always and willing to go and to reside with the appellant - husband. This itself shows that her intention was not to end the marital relations and cohabitation. Because of unavoidable circumstances created by the appellant, the respondent started residing with her father. 6. Considering the submissions of both the parties, the trial Court held that the appellant failed to prove that the respondent deserted him without reasonable cause since two years prior to the presentation of the petition. The trial Court further held that the appellant was not entitled to the divorce on the ground of desertion. Even the appellate Court held that the appellant was not entitled to divorce on the 9 ground of desertion. 7. It is to be noted that the respondent specifically stated in her Written Statement that she was ready to cohabit with the appellant ignoring all the allegations made by the appellant against her. Not only that, the evidence on record also shows that the respondent on her own did not leave the matrimonial home. She was constrained to leave matrimonial home due to cruelty meeted out by the appellant. Considering the evidence on record, I do not find any substance in the present Second Appeal. 8. The Apex Court in the matter of Boodireddy Chandraiah and others vs. Arigela Laxmi and another, reported in 2007 (9) SRJ 564 held that concurrent findings of facts usually should not be disturbed in Second Appeal. Para 12 of the said judgment reads as under. 10 "12. The principles relating to Section 100 C.P.C., relevant for this case, may be summerised thus :- (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also rise in a contrary situation, where the legal position is clear, either on account of express provisions 11 of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law." 9. In any cases, the appellant failed to justify by any reason to interfere with the concurrent findings of facts of the two Courts below. The appellant did not indicate any legal flaw in the appreciation of evidence by the two Courts below. There is no substantial question of law involved in the present case. Hence the appeal is dismissed summarily. No order as to costs. [ K.K. TATED, J.] sut/JUL09/sa899.08