1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Second Appeal St.No.914 of 2009 [Smt. Shubhangi V. Sonwane Vs. Vitthalrao K. Sonwane] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. K.R. Lambat, Adv., for the appellant. Mr. Raju Dhoble, Adv., for the respondent. ----- CORAM : A.H. JOSHI, J. DATE : 01st July, 2009. 1. This is a Second Appeal by unsuccessful wife. 2. Initially, husband s petition for a decree of divorce was dismissed. 3. In First Appeal, the decree of dismissal of Hindu Marriage Petition has been reversed and decree for divorce has been granted. 4. In this appeal, following Questions are raised as Substantial Questions of Law as averred in Memo of Appeal, namely:- 1. Whether the First Appellate Court was right in giving the finding in para 15 of the impugned judgment that there are least chances of their 2 continuation of peaceful marital life, the marriage seems to be irretrievably broken down and therefore, the appellant deserves for decree of dissolution of marriage instead of directing the parties to perform conjugal rights? 2. Whether the First Appellate Court s approach is proper in holding that the trial court erred in refusing the decree of divorce for the reason that no issue regarding cruelty was framed? 3. Whether the First Appellate Court is right in holding that a decree of divorce as an alternate relief ought to have been granted in accordance with Section 13 (A) of the Hindu Marriage Act on the grounds mentioned in (i-a) and (i-b) of Section 13 of the Act? 4. Whether the First Appellate Court was right in granting the decree of divorce in favour of the respondent in as much as the documents filed by the petitioner and after considering the oral submissions as well as written notes of arguments, the Trial Court came to the conclusion that firstly the respondent/petitioner in the H.M.P. is not entitled for decree of restitution of conjugal rights on the ground of desertion because he has not proved desertion and also because, during the course of argument in view of the changed circumstances, the petition 3 does not want decree for restitution of conjugal right. 5. Whether the First Appellate Court was right in quashing and setting aside the judgment and decree dated 24-8-2005 passed by the Trial Court, when it has given the clear finding that the petitioner is also not entitled for the decree of divorce because though he has alleged that there is cruelty at hands of respondents, however there is no issue of cruelty nor it is objected by him to frame the said issue till the decision of the case. 5. Heard learned Adv. Mr. D.S. Yadav and Mr. K.R. Lambat for the appellant and perused impugned Judgment. 6. It is seen from the judgment of Appellate Court that on facts as contained in Paragraph Nos. 6 to 12, the Court has discussed the conduct of the wife in behaving with husband with cruelty, non-co-operation and withdrawal from matrimonial company. 7. After appreciation of evidence as noted in foregoing para, learned Appellate Court has recorded a finding as follows:- 15. ........................... ..........The appellant has produced cogent and credible evidence to show that without any reasonable excuse or sufficient cause respondent left his society and point of desertion ought to have been decided in favour 4 of appellant. It also erred in refusing the decree of divorce for the reason that no issue regarding cruelty was framed. However, the issue No.4 was framed as an additional issue regarding entitlement of the appellant for decree of divorce. Therefore, the evidence led by the appellant on the basis of pleadings and amendment sought in the petition etc., ought to have been taken by the trial court while considering his case in accordance with either Section 9 or 13 (1) (i-a) of Hindu Marriage Act. A decree of divorce as an alternative relief ought to have been granted in accordance with Section 13 (A) of the Act on the grounds mentioned in (i-a) and (i-b) of Section 13 of the Act. Therefore, impugned order needs to be quashed and set aside by allowing the petition in favour of appellant. ..... 8. In the above-said background, the questions, as agitated, revolve around appreciation of evidence. Any substantial Question of Law does not arise. 9. In the above premises, appeal has no merit, and is dismissed accordingly. Judge |Hedau| 5