FA/2377/1987 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2377 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PRABHABEN BAVABHAI KANPARA - Appellant(s) Versus VITHALBHAI PREMJIBHAI SARVAIYA - Defendant(s) ========================================================= Appearance : MR RD DAVE for Appellant(s) : 1, MR MN MEHTA for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 08/05/2008 ORAL JUDGMENT 1. This Appeal is directed against the judgment and decree dated 19.11.1987 passed by the learned Extra Assistant Judge, Ahmedabad [Rural], Narol in FA/2377/1987 2/4 JUDGMENT H.M.P. No. 85 of 1985 whereby, the said application was allowed. 2. Before proceeding further, it may be noted that the matter was called out thrice in the first sessions and that in all the three calls, Mr. R. D. Dave, learned Advocate for the appellant, was not present. In the second sessions, when the matter was called out, Mr. Dave requested the Court that he is busy in a part-heard matter before another Court and therefore, the matter may be kept at the bottom of the Board and that, in any case, he would remain present before the Court at 3.00 p.m.. Accordingly, at his request, the matter was kept at the bottom of the Board. 3. The Court took up all the matters which were listed on Board today, barring this matter, in view of the aforesaid request made by Mr. Dave. The Court waited till 4.10 p.m. for Mr. Dave to turn up. However, Mr. Dave did not turn up. Therefore, the Court had no other alternative but, to proceed with the matter on merits. 4. The facts in brief are that the respondent herein filed an application being H.M.P. No. 85 of 1985 for dissolution of the marriage with the appellant by a decree of divorce on several grounds. The appellant filed her objections to the said application. The trial Court framed the issues and after hearing the parties and considering the FA/2377/1987 3/4 JUDGMENT evidence on record, allowed the application preferred by the respondent and passed a decree of divorce u/s. 13(1)(a) of the Hindu Marriage Act. Being aggrieved by the same, the appellant has approached this Court by way of this Appeal. 5. Heard Mr. M. N. Mehta, learned Advocate for the respondent and have gone through the documents on record as also the memo of Appeal. 6. While the Court was dictating the judgment, Mr. Dave, learned Advocate for the appellant, approached the Court and requested to adjourn the matter to some other date. It may be noted that the matter was earlier listed before this Court on 17.08.2006 and on that day, at the request of Mr. Dave, the matter was adjourned to 31.08.2006. Thereafter, again on 31.08.2006, the matter was adjourned to 21.09.2006 with a view to enable Mr. Dave to find out some amicable solution of the dispute. On 21.09.2006, it appears that some order was passed in the matter by this Court. However, the said order is missing from the Court file. Therefore, the Court is not in a position to refer to the same. Be that as it may, the fact remains that on account of the pendency of this Appeal, the appellant has been deprived of his legitimate right under the Act. In the aforesaid circumstances, this Court is not inclined to accept the request for adjournment made by Mr. Dave. FA/2377/1987 4/4 JUDGMENT 7. It transpires from the record that both the parties were residing separately for a period of more than nine years immediately prior to the filing of the application for divorce before the trial Court. The said aspect has weighed with the trial Court while deciding the application Exhibit – 41. No reconciliation has taken place even after the passing of the impugned judgment in the year 1987. In other words, both the parties have been residing separately since last more than three decades. Therefore, it appears that the parties are not in a position to reconcile or to amicably settle the dispute in spite of the opportunity granted by this Court 1½ years back, i.e. vide order dated 30.08.2006. 8. Looking to the peculiar facts and circumstances of the case and in view of the provisions of the Act, this Court is not inclined to entertain this appeal. I am in complete agreement with the reasonings given by and the findings arrived at by the trial Court and hence, fine no reasons to interfere in this appeal. 9. In the result, the Appeal is dismissed. No orders as to costs. [K. S. JHAVERI, J.] Pravin/*