1 sa 441.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 441 OF 2010 Sanjay Yeshwant Bharaskar .. Appellant Versus Kranti Sanjay Bharaskar .. Respondent Shri N. B. Suryawanshi, Advocate for the Appellant. Smt. C. S. Deshmukh, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 03RD MAY, 2011. PER COURT : . This is an appeal by the original plaintiff who had filed a petition for divorce on the ground of desertion and mental cruelty. The Civil Judge Senior Division, Dhule dismissed the petition of the plaintiff for divorce. Aggrieved thereby the plaintiff filed an appeal before the District Court. The District Court also dismissed the appeal confirming the judgment and decree passed by the Trial Court. The plaintiff/husband has assailed the said judgments in the present second appeal. 2. Shir Suryawanshi, the learned counsel for the appellant 2 sa 441.10 submitted that, in fact there is no cohabitation between the appellant and the respondent since the year 2001 is a proved fact. When it is proved that there is no cohabitation between the appellant and the respondent since 2001, then in such circumstances there was no impediment for the Courts to grant a decree for dissolution of marriage on the said count. The learned counsel further submitted that, even the allegations of mental cruelty were proved. According to the learned counsel the family background of the respondent is such, that they have habituated to the disturbed matrimonial life in as much as even the respondent's brothers are facing matrimonial proceedings and litigations. According to the learned counsel the Courts below have not appreciated the evidence on record in correct perspective and thereby have arrived at erroneous conclusion. 3. Mrs. C. S. Deshmukh, the learned counsel for the respondent submits that, it is a case of constructive desertion. No evidence is led by the appellant to show that the present respondent had inflicted mental cruelty on the appellant. The appellant is not interest in as much as even the appellant is not in a position to tell the birth date of his son who is disabled and mentally challenged, he even did not come to meet him. 3 sa 441.10 4. With the assistance of the learned counsel I have gone through the judgments. The courts have discussed the evidence on record and have come to the categorical conclusion that the mental cruelty as alleged by the appellant is not proved in as much as the members of the joint family have not been examined and adverse inference is required to be drawn. It has also come on record that it is the present appellant who is not interested in continuation of the matrimonial life with the respondent. He has shown his total disinterest even to the ailment of the son who is admittedly physically disabled and mentally challenged. He is required to be taken in the hospital once in a week. The appellant has hardly visited at the place of the wife even for 2/3 times. 5. The Courts have observed that the appellant's only intention is to obtain divorce for disowning the liability of a disabled son. The Courts on appreciation and evaluation of evidence have come to the plausible conclusion. The second appeal being sans substantial question of law is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/May 11