abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 54 OF 2009 Annappa Sunder Poojary .. Appellant V/s Mrs.Smita Annappa Poojary .. Respondent Mr.Dilip Bagave i/b Mr.P.K. Shetty for the appellant. CORAM : B.H. MARLAPALLE & D.G. KARNIK, JJ. DATE : 25TH MARCH 2009 P.C. P.C. P.C. : 1. We have heard Mr.Bagave with Mr.Shetty, the learned counsel for the appellant-husband. We have also gone through the oral depositions and other pleadings filed along with the appeal memo. 2. The parties were married on 30th May 1996 at Udupi in Karnataka State. The respondent, who was working at Bombay, sought transfer to Chikaballapur in - 2 - Karnataka and she joined her matrimonial home. On 24th February 1999, son Vinayak was born. It was the case of the husband that on 21st November 1999, the respondent left the matrimonial home permanently and did not show any interest in returning. He, therefore, approached the Family Court by filing Petition No.A-337 of 2007 seeking divorce on the ground of cruelty and desertion. The wife appeared before the Family Court and filed the written statement on 21st March 2007. They stepped in the witness box in support of their respective claims and there was no third party witness examined by either of them. The Family Court, after hearing both the parties, held in the impugned order dated 1st December 2008 that the husband failed to prove the ground of cruelty as well as desertion and consequently the petition came to be dismissed. 3. There is no dispute that on 19th November 1999, the wife had filed a police complaint at Chikaballapur and along with her father she left her matrimonial home on 21st November 1999. The police had advised the respondent to sort out the family disputes. In August 2001, the appellant filed the petition for restitution of conjugal rights and it came to be dismissed on 23rd November 2002. In the meanwhile, on 8th October 2001, the respondent had filed the petition for maintenance in the Family Court at Bandra. The parties filed consent - 3 - terms on 6th June 2003 and the appellant agreed to pay an amount of Rs.1500/- per month by way of maintenance for the minor son, to the respondent from the date of the application and, therefore, the said petition came to be decided on 6th June 2003. The petition memo in Petition No.A-337 of 2007 does not set out any instance of cruelty from August 2001 till April 2006. The husband alleges that in April 2006, there was inaugural function of Billawa Bhavan at Andheri Sports Complex and the families met to discuss the matrimonial disputes between the appellant and the respondent. He alleged that the respondent and her family members refused to talk to them and thus all the efforts made to persuade her to join the matrimonial home failed. The respondent, on the other hand, alleged that she was harassed, ill-treated and at times was assaulted. These circumstances forced her to leave the matrimonial home. She also alleged that she suffered an abortion because of the physical violence that the appellant had unleashed on her. It is thus clear that between the parties there are words against words on the issue of cruelty. The Family Court was therefore justified in holding that the husband could not prove the allegation of cruelty. 4. Even on the ground of desertion, the Family Court has rejected the plea of the husband and has noted - 4 - that after the petition for restitution of conjugal rights was dismissed, the husband did not take any steps to call upon the wife and persuade her to join the matrimonial home. Even in the petition submitted by him, there was no prima facie material in support of the ground of desertion except to say that she left the matrimonial home on 21st November 1999 and did not return thereafter for almost 6 years. Whereas, the wife claimed that she was forced to leave the matrimonial home initially and subsequently the husband neglected her and the minor son. 5. We have noted that both the parties are well educated. The appellant is a Professor in a Government College in Karnataka State and the respondent is employed with the Life Insurance Corporation of India. It would be therefore for both of them to sit together and sort out the matrimonial disputes. As far as this appeal is concerned, we do not find any reason to hold that the impugned order passed by the Family Court requires to be reconsidered by us as it does not suffer from errors on any count. 6. Hence, the appeal is dismissed in limini. (D.G. KARNIK, J.) (B.H. MARLAPALLE, J.)