1 fca107.05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.107 OF 2005 Prakash Shrikrishna Sali .. Appellant. Vs. Usha Prakash Sali .. Respondent. Mr.L.K.Tripathi for the appellant. Mr.A.G.Toraskar for the respondent. CORAM : D.B.BHOSALE & ANOOP V.MOHTA, JJ. DATED : 5TH SEPTEMBER, 2011. P.C. 1. This appeal is directed against the judgment and order dated 15th December, 2004 passed by the Family Court, Bandra in Petition No.A-571/2001 whereby the appellant’s petition for dissolution of marriage on the ground of cruelty and desertion came to be dismissed. 2. The petitioner and the respondent got married on 23.2.1992 at Jogeshwari, Mumbai as per Hindu vedic rites. The appellant claims that she left matrimonial home without his consent on 22.9.1992 and since then they have been residing separately. The petition for divorce was filed in 2001 and it was dismissed on 15.12.2004. 3. The appellant has filed an affidavit dated 24.8.2011 stating that S 2 fca107.05 during the pendency of this appeal the respondent-wife has remarried and her whereabouts are not known. Mr.Toraskar, learned advocate for the respondent has filed his own affidavit dated 5th September, 2011 stating that he made several efforts to get in touch with the respondent, however, his all efforts were in vain. It is against this backdrop we have heard learned counsel for the parties on merits. Learned counsel for the appellant, on instructions, submits that he has instructions to press the appeal only on the ground of desertion. 4. There does not appear to be any dispute that since September 1992 the appellant and the respondent are residing separately. According to the appellant, the respondent left matrimonial home without his consent on 22.9.1992, whereas, according to the respondent-wife, she was forced to leave the matrimonial home with her father. The appellant claims that he made repeated efforts to bring the respondent-wife back to matrimonial home but he did not succeed. As against this according to the respondent-wife, she was compelled to leave matrimonial home and that she had keen desire to go back and join company of the appellant. 5. The respondent-wife had filed petition under section 9 of the Hindu Marriage Act in the Court of Civil Judge, Senior Division bearing Petition No.46 of 1995 for restitution of conjugal rights. That petition was dismissed in default on 23rd April, 1996. The 3 fca107.05 respondent-wife never made any attempt for seeking restoration of the said petition. She had also filed Criminal Misc. Application No.191 of 1993 in the Court of Judicial Magistrate, First Class, Dhule for maintenance under section 125 of the Code of Criminal Procedure. That court had granted interim maintenance of Rs.350/- per month, which the appellant-husband regularly paid till December 2007. Learned counsel for the appellant, on instructions, submits that the said criminal misc. application also came to be dismissed for non prosecution and the appellant-wife never made any efforts for restoration of the said petition. The dismissal of these proceedings in default coupled with the statement made by the appellant on affidavit about re-marriage of the respondent-wife, in our opinion, is sufficient to hold that the respondent-wife left matrimonial home without the petitioner’s consent. In other words, from the facts of the case including the subsequent events clearly show that the respondent-wife left the matrimonial home and/or company of the appellant-husband in September 1992 without consent of the petitioner with a view not to return to matrimonial home. In the circumstances we have no hesitation to hold that the evidence led by the appellant to prove the case of desertion is sufficient to grant decree of divorce on the ground of desertion. The facts of the case clearly show that since last about 20 years the appellant and the respondent are separate. The respondent-wife seems to have remarried and, therefore, is not coming forward to defend the impugned judgment or to give instructions to her 4 fca107.05 advocate. Learned counsel for the respondent states that during last about three years, he has not heard anything from the respondent and that her whereabouts are not known. In view thereof, we are satisfied that there is no possibility of the parties coming together. Hence the appeal is allowed. The marriage of the appellant and the respondent is dissolved by a decree of divorce under section 13 (1) (i-b) of the Hindu Marriage Act. No costs. Learned counsel for the respondent-wife to communicate this order to the respondent on her last known address and/or her address on record. Certified copy expedited. (ANOOP.V.MOHTA,J.) (D.B.BHOSALE,J.)