{1} FIRST APPEAL No.1699/2011 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.1699 OF 2011 Anita Johnny Kardoj APPELLANT Age-42 years, Occ-Nil R/o C/o Namdeo Ananda Waghmare, Survey No.5/12, Bajiraonagar Near Shivasi Club, Wadgao Sheri, Pune VERSUS Johnny Francis Kardoj RESPONDENT Age-42 years, Occ-Service, R/o Ward No.1, Shrirampur Tq-Shrirampur, Dist-Ahmednagar ....... Mr.R.A.Tambe, Advocate for the Appellant Mr.B.R.Kedar, Advocate for the respondent ....... [CORAM : A.V.POTDAR, J.] DATE: 13 th December 2011 ORAL JUDGMENT: 1. By this appeal, the original respondent in Divorce Petition No.6/2006 has assailed the judgment and decree dated 25.06.2009 passed by District Judge-1, Shrirampur. {2} FIRST APPEAL No.1699/2011 2. Admit. 3. Heard finally by consent. 4. The facts, which gave rise to file the present first appeal may briefly be stated thus- Present respondent is the husband of appellant whose marriage was performed on 22.08.1999 as per Christian religion. Admittedly, the appellant and respondent profess Christian religion. Respondent-husband is serving in St.Lucas Hospital, Shrirampur even prior to his marriage. After the marriage, the appellant frequently used to visit her parents. She had left the matrimonial house on 01.01.2000 and was continuously and frequently used to leave the matrimonial. It appears that during the said period the appellant-wife used to suspect the respondent- husband in respect of alleged illicit relations with others and used to take quarrel on the said ground. Ultimately, the appellant-wife left the matrimonial house on 12.10.2001. The respondent- husband lodged complaint in respect of alleged assault on him, in {3} FIRST APPEAL No.1699/2011 city police station, Shrirampur. Thereafter, it appears that, the parties were called in the police station for settlement through mediation by one Social Worker Ranjana Patil, however, at that time the appellant-wife straight way refused to cohabit with the respondent-husband. Respondent-husband contended that after the appellant-wife left his house, she started residing with her parents at Pune and she had also joined service and is earning Rs. 5000/- per month. According to respondent-husband, as the appellant-wife had left the matrimonial house since 20.10.2001 and was permanently residing away from him, he had filed marriage petition u/s 10 (1) (x) of the Divorce Act for dissolution of marriage. 5. It appears that in response to the summons of the marriage petition, the appellant-wife appeared in the petition and filed her written statement (Exhibit-7) denying all the allegations against her. A specific defence was taken in paragraph No.15 of the written statement that it was agreed between respondent-husband and appellant-wife that after their marriage, respondent-husband would vacate the rented premises where he was residing prior to {4} FIRST APPEAL No.1699/2011 marriage and would occupy the service quarters, however respondent-husband did not honour the said promise and continued to reside in the rented premises. It is also alleged that the respondent-husband used to suspect appellant-wife and his behaviour was rude towards her parents. It is also alleged that respondent-husband had demanded Rs.10,000/- from the father of the appellant-wife for purchase of motor bike and when her father offered Rs.5000/- he refused the same and somewhere in 2000 respondent-husband driven her out of his house. It is also alleged that a complaint was lodged by respondent-husband with Womens’ Grievance Redressal Forum where settlement was arrived between the parties and she had started to cohabit with respondent- husband and also gave birth to a girl child, however, according to appellant-wife, as there were no honest and sincere efforts on the part of respondent-husband she was compelled to leave the company of the respondent-husband. Thereafter, she filed a petition seeking maintenance in the Family Court at Pune. It was alleged that the respondent-husband is serving as a clerk in St.Lucas Hospital and was earning Rs.7000/- per month. Therefore, it was prayed to dismiss the petition for divorce and it {5} FIRST APPEAL No.1699/2011 was requested to grant maintenance of Rs.3000/- per month. 6. It appears that on the basis of the pleadings of the parties, the trial court had framed issues at Exhibit-17 in respect of desertion and also on the point of cruelty. Record shows that both the appellant-wife and respondent-husband examined themselves on oath before the trial court. The trial court, after appreciation of the evidence on record, came to the conclusion the respondent-husband has proved that the appellant-wife has deserted him and it is further held that respondent-husband has established cruelty at the hands of appellant-wife and thus, allowed the petition, which judgment and decree is impugned by the appellant-wife in the present appeal. 7. Mr.Tambe, learned counsel for appellant-wife submitted that the observations of the trial court in paragraph No. 13 of the impugned judgment and decree are not proper appreciation of evidence and the inference drawn by the trial court that the respondent-husband has proved desertion by appellant- wife so also cruelty at the hands of appellant-wife is erroneous and {6} FIRST APPEAL No.1699/2011 hence requested to allow the appeal. On the other hand, Mr.Kedar, learned counsel for respondent-husband supported the impugned judgment and decree and urged for dismissal of the appeal. 8. Considering the rival submissions and the pleadings of the parties, the following points arise for my consideration - i) Whether the trial court has committed an error in concluding that the respondent-husband has proved that appellant-wife has deserted him from 20.10.2001 so also cruelty on the part of appellant-wife and hence respondent- husband is entitled for the decree of divorce on the ground of desertion and cruelty. ii) What order - 9. Finding on point No.1 – For better appreciation of the rival submissions, I think it appropriate to quote section 10 (1) (ix) and (x) of the Divorce Act, 1869, which reads thus - “10. Grounds for dissolution of marriage – (1) Any {7} FIRST APPEAL No.1699/2011 marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent - (ix) has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or (x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.” Evidence lead by the parties before the trial court is required to be considered in the light of these legal provisions. 10. Perusal of the evidence on record discloses that the cause of action to the petition aroused on 20.10.2001 when according to the petitioner-husband, the respondent-wife had left the matrimonial house. Admittedly, the petition has been filed before the District Judge-1, Shrirampur on 24.07.2006 and hence certainly the same was presented after two years from 20.10.2001. 11. Considering the evidence on record, after appellant- {8} FIRST APPEAL No.1699/2011 wife left her matrimonial house and after complaint came to be lodged by respondent-husband, the parties were called in the police station and the matter was referred for mediation to a Social Worker. In this respect, it is necessary to advert to the admission given by the appellant-wife in her cross examination which reads thus - “It is true to say that petitioner filed criminal complaint against my father and sister making such allegations against them. A social worker by name Ranjana Patil mediated between myself and petitioner and tried to solve our dispute. It is not true to say that I told Ranjana Patil that I do not want to reside with the petitioner.” Though appellant-wife had denied the suggestion, yet the fact remains that according to her she did not turn back to cohabit with the respondent-husband. 12. In this respect, the last paragraph of the cross examination of the appellant-wife further play vital role, which reads thus - “Now, after lapse of eight years, since we are residing separately for eight years, I am not now willing to join the company of the petitioner. (Witness volunteers that, {9} FIRST APPEAL No.1699/2011 the petitioner treated herself and her daughter with cruelty for long period and now daughter has grown up and therefore it is not possible to live with the petitioner)”. This evidence of the appellant wife was recorded on 24.03.2009 and thus, it tallies with the contention of the respondent-husband that the appellant-wife had left his house since eight years. 13. Now, the cause behind the fact that the spouses are living separately needs to be considered. It is the consistent stand of the appellant-wife in her written statement so also in her evidence that it was agreed between herself and respondent- husband, before marriage, that after marriage respondent- husband would occupy service quarter, however, he did not keep the promise and continued to reside in the rented premises, which is situated in slum area. To these allegations it was the contention of the respondent-husband that he could not vacate the rented premises in the hope that one day some builder would occupy the area and in such circumstances he would get huge money and {10} FIRST APPEAL No.1699/2011 hence he was not ready to vacate the rented premises and continued to stay there. If on such petty issue the appellant-wife has left the company of respondent-husband and did not return back inspite of mediation that too for years together and it is clear from the admissions in her cross examination that she is not ready to cohabit with the respondent-husband and hence the trial court has concluded that now the relations between the parties have worsened and the ray of hope of re-union is lost and hence they cannot be forced to live together by denying the decree of divorce. In the light of factual aspects so also in law, after 2001 till 2009, the appellant-wife did not turn up to cohabit with respondent- husband, which clearly indicates that she has deserted the husband at her own. 14. In respect of allegations of demand of money from her parents, there are no specifications as to when the demand was made and even no complaint has been filed in this respect. Moreover, to suspect about the spouse regarding illicit relations with somebody without any basis and making false allegations, amounts to harassment and cruelty to the spouse. Considering {11} FIRST APPEAL No.1699/2011 this aspect, it is to be held that the trial court has rightly concluded that the appellant-wife has deserted the respondent- husband and also behaved cruelly with him. In the premise, the finding on point No.1 has to be recorded in negative. 15. Finding on point No.2 – Once finding on point No.1 is recorded in negative that no error has been committed by the trial court in concluding that the appellant-wife has deserted the respondent-husband and she has also behaved cruelly with him, then there is no option left but to dismiss the appeal by upholding and confirming the decree of divorce granted by the trial court. 16. Resultantly, for the above discussion, as the appeal is devoid of any merits and hence dismissed with no order as to costs. As the appeal itself has been dismissed, the pending civil applications, if any, do not survive and hence disposed of accordingly. [A.V.POTDAR, J.] drp/B11/fa1699-11