-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.147 OF 2008 FAMILY COURT APPEAL NO.147 OF 2008 FAMILY COURT APPEAL NO.147 OF 2008 Mr. Subhash Sahebrao Deshmukh, .. Appellant. Vs Mrs Vandana Subhash Deshmukh, .. Respondent. Mr A.S.Desai, for the appellant. Mr R.R.Thumbre, for the respondent. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. DATE : 25/07/2008 DATE : 25/07/2008 DATE : 25/07/2008 PC: PC: PC: 1. We have heard Mr Desai, the learned counsel for the appellant-husband and Mr Thumbre, the learned counsel for the respondent. 2. Mr Desai has placed on record a private paper book to which we have referred to, so as to go through the depositions of all the witnesses examined on both sides and the other material. 3. The appellant is aggrieved by the Judgment and order dated 26.11.2007 rendered by the Family Court at Bandra, Mumbai, whereby Petition No.A-1612 of 2003 filed by the appellant-husband came to be dismissed and Petition No.C-41 of 2004 filed by the respondent-wife came to be allowed by directing the husband to pay an amount of Rs.5000/- per month to the wife and Rs.3000/- per month to -2- the daughter towards maintenance from 26.11.2007. The Family Court further directed the husband to pay an amount of Rs.3500/- per month to the wife towards accommodation charges with effect from 26.11.2007. 4. By his Petition No.A-1612/2003, the husband had prayed for a decree of divorce under section 13 of the Hindu Marriage Act, 1955 ("the Act", for short) on two grounds, namely (a) cruelty and (b) dissolution. The learned Judge of the Family Court held against the appellant on both these counts and in the petition filed by the wife the Family Court held that she was justified leaving separately from the respondent-husband and without forfeiting her claim for maintenance. 5. The marriage between the appellant and the respondent was solemnized at Bandra, Mumbai as per Hindu Vedic rites and customs on 28.4.1996 and it was an arranged marriage. On 18.8.2001, that is after about five years of the marriage, a daughter was born. The husband claimed that after the wife went for delivery to her parents’ home she did not return and he waited upto October, 2003 and filed the petition seeking divorce on the ground of desertion. He also claimed that on one occasion, i.e. on or about 16.9.1996 the wife had consumed poison so as to commit suicide and again on -3- 24.7.1999, she had set herself on fire and had sustained 40% burn injuries. As per the husband, both these acts alleged on the part of the wife were the acts of attempt to commit suicide and, therefore, she was guilty of cruelty and more particularly mental cruelty. He also claimed that the petitioner’s cousin Shri Ashok Pawar was to be employed in the Co-operative Bank of which the appellant’s father was the Chairman and, therefore, the relations between the family had been disturbed. 6. The appellant examined himself and one more witness Shri Prakash Junghre who is the husband of his sister. In defence, the wife stepped into the witness box and examined her father Shri Vishnu Pawar and her cousin Ashok Pawar. We have perused the depositions of all these five witnesses and the following facts are clearly established. (a) The couple could not have a child despite more than four years of the marriage and though these spouses were medically examined. Even after five years of marriage they begot a daughter and not a son; (b) the incident of the alleged consumption of poison has not been established. On the other hand, the wife had taken some medicine which was kept in a bottle and it was noticed that somebody had added some poison in the same -4- bottle. The wife was admitted at Bandra clinic and the matter was reported to the police. It was at the request of her in-laws, she did not make any statement against them to the police. The second incident of 24.2.1999 has also been dealt with in the evidence. It has clearly come out that it was an accidental fire. But when the wife was admitted in the nursing home of C.M.Pujari and was subsequently shifted to Masina Hospital at Byculla, the husband did not bother to visit. When she was discharged he was not present in the hospital. (c) On 18.5.2001 she was sent to her parents home for delivery and on 18.8.2001 she gave birth to a daughter. The husband, though visited her at her parents home, did not take any steps to bring her in his house for cohabitation. In his cross-examination Shri Vishnu Pawar, the father of the wife, has clearly stated that "after delivery though he visited our house but did not utter a single word to take her. He never took her after birth of daughter." (d) The family of the appellant-husband had changed their home from Bandra to Santacruz while the wife was with her parents and her name was removed from the ration card at Bandra. In his cross-examination the following question was asked to the husband which he did not reply. -5- "You are not giving ration card to your wife as you have neglected her and her daughter." (e) The wife was always willing to join the company of her husband for cohabitation and even before the Family Court this readiness and willingness was manifestly demonstrated. In his cross-examination the husband stated "I am not ready to take her though she is ready to join my company from court also. I am not ready to take her as she did not give any response when I made several efforts." 7. Admittedly, no steps were taken by the husband so as to bring his wife in his house from her parental home after she had given birth to the daughter. No notice was sent. Neither he had approached the competent court for restoration for conjugal rights. 8. It was under these circumstances the Family Court held in the impugned judgment that there was no incident of cruelty that was proved by the husband and the wife was not guilty of desertion. As per the Family Court it was the husband who had deserted the wife and therefore Issue nos 1 and 2 as framed by the family Court in the petition filed by the husband came to be answered against him. -6- 9. The marriage between the parties is admitted and from the wedlock a daughter is born. We are more than satisfied that the amount fixed for maintenance and for shelter is justified and, therefore, the order passed in favour of the wife on that count does not call for any interference. Hence, this Appeal must fail. The Appeal is dismissed in limine. (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (B.H.MARLAPALLE,J.) (B.H.MARLAPALLE,J.) (B.H.MARLAPALLE,J.)