1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 60 OF 2005 Sau Suman Ramesh Bhanuse ........Appellant versus Shri Ramesh Shantaram Bhanuse ........Respondent. Ms. S.S. Kshirsagar adv. for the appellant. Mr. Nitin P. Deshpande adv. for the Respondent. CORAM: A.P. DESHPANDE AND R.V. MORE, JJ. DATED : 17th March, 2010. JUDGMENT (PER A.P. DESHPANDE,J.): 1. This appeal is filed by the appellant/wife against the judgment and decree passed by the Family Court dissolving the marriage of the parties by a decree of divorce on the ground that the appellant/wife had deserted the respondent for a period of more than three years preceding the filing of the Marriage Petition. While disposing of the Marriage Petition, the Family Court has addressed itself to the question of granting permanent alimony to the present appellant and has passed a decree for payment of permanent alimony in the sum of Rs. 1000/- per month. The appellant wife is challenging the grant of divorce on the ground of desertion so also she is challenging the order 2 granting permanent alimony in the sum of Rs. 1000/- per month by contending that the said amount is insufficient for the wife to maintain herself. 2. Few admitted facts are narrated herein below. The marriage of the appellant and the respondent was solomanized on 23-1-1998 at Alandi according to Hindu rites. After the marriage they stayed together for about six months. It is the case of the respondent (original petitioner) that on 24th July 1998 the mother of the appellant, sister and other relatives of the appellant had come to the house of the petitioner and took the appellant along with them and since then the appellant is staying with her mother. The appellant did not return to the house of the respondent till the date of filing of the Hindu Marriage Petition. 3. In the above set of facts it is the case of the present respondent-husband that the present appellant completely severed the relationship by abandoning the respondent and permanently shifted to her mother’s place at Barshi. According to the respondent the appellant did not make any effort with a view to reconcile. With a view to show that the appellant had permanently moved out of the house of the respondent/husband a receipt bearing the signature of the parties and the witnesses was produced in evidence and the same is filed as Exh.37. The said receipt bears the signature of the present appellant, and also thumb impression of the mother of the appellant besides the signature of the maternal uncle and paternal uncle of the appellant who have signed as witnesses on the said document. The names of the 3 paternal and maternal uncle are Mr. Mane and Mr. Yadav. They have signed as witnesses. The said document has been exhibited and read in evidence. From the perusal of the said document, it is revealed that as there were differences in between the parties, after discussion, the appellant collected whatever was given to her at the time of marriage by her mother and brother. A reference is made in the said document in regard to the ornaments and other goods which came to be returned by the respondent to the appellant. Even the number of vehicle (tempo) is mentioned in which the belongings of the appellant were carried by her. The said document had been read by the trial court so as to reach the conclusion that there was not only a physical separation but an intention on the part of the present appellant to separate from the respondent permanently. Having found there existed animus deserendi a decree of desertion came to be passed. The only question that falls for determination in the present appeal is whether the appellant has deserted the respondent ? 4. According to the learned counsel for the appellant in the first place the petition for divorce was based on the ground that the appellant was suffering from mental disorder. However, the said ground came to be deleted by seeking permission of the court to amend the Marriage Petition. It is submitted that the Marriage Petition was solely filed on the ground of mental disorder of the present appellant. And hence no cause for dissolution of marriage survived after amendment of the petition. 5. We have perused the petition and we have no iota of 4 doubt that the ground of desertion is also taken by the present appellant in the petition and the same is rightly taken into consideration by the Family Court. Touching the crucial document at Exh.37 titled as receipt dated 27-4-1998 it is submitted by the learned counsel for the appellant that the receipt was written by the father of the respondent, the contents whereof are denied and it is further submitted that forcibly the signature of the appellant was obtained besides the thump impression of her mother. The Family Court rejected the case of the present appellant relating to the document at Eh. 37 by holding that besides the signature of the appellant and thump impression of her mother, two other close relatives of the appellant had signed as witnesses. They are referred to herein above as Mane and Jadhav who are maternal and paternal uncle of the present appellant and they were not cited as witnesses in support of the case of the present appellant. According to the respondent, the purported signatures were that of the maternal and paternal uncle of the appellant and hence it was obligatory on the part of the appellant to examine them as witnesses. However for undisclosed reason the maternal and paternal uncle have not been examined by the appellant. The family court is thus justified in drawing the adverse inference against the appellant that had she examined her maternal and paternal uncle their evidence would have gone against her. Even otherwise this is an admitted fact that the appellant has moved out of the house of the respondent on the date on which the receipt is executed i.e. on 28th July 1998 and did not return thereafter. It is 5 also an admitted fact that the parties have not cohabited from 24th July 1998 till the date of filing of the petition for divorce. 6. The finding recorded by the Family Court that the appellant has deserted the respondent without reasonable cause and without the consent or against the wish of respondent cannot be faulted. It will not be out of place to state at this juncture that since the year 1998 till date, the parties are staying separately. The learned counsel for the respondent has also stated that the respondent has re-married and a child is also born from that marriage which is performed by the respondent after the decree of divorce came to be passed in his favour. It is also pointed out that the appeal was filed belatedly by moving an application for condonation of delay and the marriage came to be performed by the respondent after the period of limitation was over. Be that as it may, in the facts of the present case, we do not see any reason to interfere with the judgment and decree passed by the court below in dissolving the marriage by passing a decree of divorce. 7. Next point for determination is as to whether the Family court has fixed the quantum of maintenance correctly in the sum of Rs. 1000/- per month. During pendency of the proceedings, the Family court had granted interim maintenance under section 24 and while disposing of the petition has quantified the amount of permanent alimony in the sum of Rs.1000/- per month. The learned counsel for the appellant has submitted that the appellant has absolutely no source of income and is constrained to wholly depend upon the amount of maintenance that she receives from 6 the respondent. It is also submitted that though the appellant is an educated able bodied woman having post graduation in Arts , is unemployed. It is then submitted that the decree passed by the trial court is of the year 2004 and by passage of time the appellate is facing inflation array pressure and is unable to sustain in the meager sum of Rs. 1000/-. 8. Reliance is also sought to be placed on the observations made by the Family Court in its judgment in regard to the agricultural landed property standing in the name of respondent’s father. Thus the submission is that the respondent is earning sum of Rs.10,000/- per month and is also possessing immovable property. Fact remains that in the first place 7/12 extract which was filed on record by the appellant has not been exhibited and admitted in evidence. There is no satisfactory evidence touching the income of the respondent. However, having regard to the fact that a sum of Rs. 1000/- would not be sufficient to maintain the appellant and having regard to the passage of time from the date of passing of the decree by the Family court in the year 2004, we deem it appropriate to enhance the amount of maintenance from Rs. 1000/- per month to Rs. 2000/- per month. This, in our view, would advance the cause of justice. Thus the appeal filed by the appellant wife to the extent it challenges the decree for dissolution of marriage is concerned, the appeal deserves to be dismissed and we reject the appeal. The decree to the extent it grants permanent alimony of Rs. 1000/- per month by the respondent to the appellant, the same stands modified and we 7 direct the respondent to pay towards permanent alimony a sum of Rs. 2000/- per month with effect from the date of this judgment and order. With this modification in the amount of permanent alimony, rest of the order passed by the court below is confirmed. The appeal is thus partly allowed in the above terms and disposed of. (A.P.DESHPANDE, J.) (R.V. MORE, J)