* 1 * FCA-53/2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 53 OF 2009 Mrs. Rajani Vijayanand Deshpande Age: 41 years, Occ: Housewife, Residing at : C/o Mr. Srikant Desai, Kasaba Peth, Old Hubli, Post Hubli, District Dharar, Pin Code No. 580024, Karnataka. .... Appellant : VERSUS : Mr. Vijayanand Venkatrao Deshande Age : 44 years, Occ. : Service, Residing at : 39/001, C.S.R. Complex, MHADA, Opposite Ekta Nagar, Kandivali (West), Mumbai - 400 067 ..... Respondent --------- Mrs. Ketki Datar, adv.fror the appellant. Mr. S.M. Bulbule, adv.for the respondent. Coram : A.P. Deshpande, & : Smt. R.P. SondurBaldota, JJ. Judgment Pronounced on : 6th May, 2010 JUDGMENT [PER :- SMT. R.P. SONDURBALDOTA, J] 1. The appellant wife prefers this appeal to challenge correctness and * 2 * FCA-53/2009 legality of the judgment and order dated 6th September, 2009 by which the Family Court allowed the petition filed by the respondent- husband for divorce under Section 13(1)(ib) of the Hindu Marriage Act on the ground of desertion. 2. The brief facts leading to the present appeal are that the marriage of the appellant and the respondent had taken place on 18th December, 1991 after which they resided at the matrimonial home at Jogeshwari and Kandivali. Daughter Shivangi was born to them on 23rd July 2000. The appellant allegedly is an arrogant and aggressive person. About a year after marriage, she started behaving indifferently and ignoring her wifely duties and responsibilities. She was also reluctant to reside in her matrimonial home and would often go away to her brother’s house at Hubli to stay there for a long time. Every time, the respondent had to persuade her to come back. Lastly, in August, 2003 she left the matrimonial home for Hubli and never returned despite persuasion by the respondent. The respondent had visited Hubli to persuade her to return and had also sent several letters trying to make her see reason. Therefore, he filed petition for divorce on 2nd February, 2005. 3. After due service of summons, the appellant appeared before the Family Court, Mumbai and filed her written statement at * 3 * FCA-53/2009 Exhibit-23. She alleged in the written statement that the respondent had suppressed material facts and had not approached the court with clean hands. She baldly alleged that the respondent and his parents had been harassing her physically and mentally. They also made her starve. According to the appellant, the letters sent by the respondent imploring her to return to the matrimonial home were sent only with a view to create evidence. 4. When the petition was taken up for final hearing by the Family Court the respondent led his evidence by filing affidavit. After his cross-examination was partly done, the appellant and her advocate failed to remain present in the court. Consequently, the cross- examination was closed by the court. Thereafter, the Family Court appreciated the evidence before it, consisting of the deposition of the respondent, the letters sent by him to the appellant after she left the house in August 2003 and the pleadings of the parties to find that the appellant had deserted the respondent for a continuous period of 2 years preceding presentation of the petition for divorce and hence dissolved the marriage on that count. In her written statement, the appellant had also claimed for maintenance. However, considering the fact that the appellant had already filed proceedings under Section 125 Criminal Procedure Code in the court at Hubli, the * 4 * FCA-53/2009 Family Court kept the claim of maintenance open for decision. 5. Perusal of the memo of appeal, shows that the challenge to the impugned order by the appellant is essentially on the ground of denial of opportunity to lead evidence and not on merits. Ms. Datar, the learned counsel for the appellant, submits that the Family Court erred in not granting sufficient time and opportunity to the appellant to complete the cross-examination of the respondent and to also bring in her own evidence. Ms. Datar, points out that the appellant resides at Hubli in the State of Karnataka which is at a substantial distance from Mumbai. She had the responsibility of looking after the minor daughter. The respondent also did not have any money for the long distance travel from Hubli to Mumbai. Therefore, according to her the Family Court ought to have made provision for travelling expenses of the appellant every time she was required to attend to the matter. Ms. Datar, complaints that the Family Court had granted travelling expenses of Rs.1800/- to the appellant only once, during the pendency of the proceedings. On a query from the court, Ms. Datar admits that it was not the case of rejection by the court of the application for travelling expenses by the respondent, but, it was the case of no application being moved before the court by the respondent. She however blames the learned advocate appearing for * 5 * FCA-53/2009 the respondent in the Family Court at the relevant time for not filing the necessary application. Be that as it may be, perusal of the record shows that the respondent had filed an application for setting aside the order of closing the evidence of the respondent which application was rejected by the Family court on 30th July, 2008. Thereafter, an application was moved under Section 151 Civil Procedure Code which came to be rejected on 25th August, 2008, The appellant did not challenge both the orders passed by the Family Court. Since the appellant had filed applications for setting aside the ex-parte orders passed against her, which orders have attained finality, there is no question of raising any dispute or complaint over the same in the present appeal. As regards the contention on merits, perusal of the Written statement shows that the appellant does not deny that she left the matrimonial home in the month of August, 2003 and thereafter has not returned till date. Though she alleges in the Written Statement that the respondent has not come to the court with clean hands and has suppressed material facts, the allegations therefor are seen to be bald without any particulars. In the circumstances, in our opinion, the Family Court was right in allowing the petition and dissolving the marriage on the ground of desertion. It has been pointed out by Mr. Bulbule, the learned Counsel for the * 6 * FCA-53/2009 respondent, that the records and proceedings would show that even the one time travel expenses ordered by the court and deposited by the respondent in the court, has not been withdrawn by the appellant. This would show that the complaint made as regards the travelling expenses is baseless and false. It is obvious that the appellant has deliberately avoided to appear in the court. In the circumstances, we find no substance in the appeal and dismiss the same. [SMT. R.P. SONDURBALDOTA, J] [A.P. DESHPANDE, J]