1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE FAMILY COURT APPEAL NO. 75 OF 2008 WITH CIVIL APPLICATION NO. 134 OF 2008 Pandhari Jayaram Kirve ..Appellant Vs. Sharda Pandhari Kirve ..Respondent Mr. P.V. Dhopatkar for appellant. Mr. S.P. Kadam for respondent. CORAM: B.H.MARLAPALLE & S.J.VAZIFDAR, JJ. June 30, 2009. P.C. 1. Heard. Admit. 2. By consent of the parties, the appeal has been heard finally forthwith. R and P has been perused and print is dispensed with as private paper book copies have been circulated. 3. This appeal filed under Section 19 of the Family Courts Act, 1984 arises from the Judgment and Order dated 22/1/2008 rendered by the Family Court at Mumbai, thereby dismissing Petition No.A-616 of 2000 filed by the appellant seeking divorce on the ground of cruelty and desertion. 4. The parties were married on 11/5/1986 and from the said marriage they begot 2 three children i.e. Siddhesh (son), Supriya (daughter) and Swapnil (son). Both the elder children are major and the youngest son is about 17 years of age. They have been separated from 19/11/1999 and the petition is presented on 2/3/2000. It was contended by the appellant that after the third child was born, the relations between the parties did not remain normal. He claimed that on 27/8/1992 he had employed the respondent’s brother and granted him some loan as well, but when her brother started indulging in fraudulent activities by showing wrong accounts and taking advantage of his relationship, came to be removed from service in the year 1994 and that became the cause for the beginning of strained relationship. She started quarreling and also becoming violent. On 20/5/1994 at about 9.30 p.m. she started nagging him without any reason and also assaulted him. She used to make unnecessary hue and cry of any issue she took up. The quarrelsome nature became more and more intolerable and ultimately he left the house on 19/11/1994. 5. As per Section 13(1)(i-b) of the Hindu Marriage Act, 1955, the petition for seeking divorce on the ground of desertion can be filed if other spouse has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. As noted earlier, in the instant case, the husband alleged that the respondent – wife deserted the house from 19/11/1999 and he has filed the petition on 2/3/2000 and, therefore, the statutory period of desertion was not completed. However, the respondent in her cross-examination before the Family Court admitted that there was no physical relation as husband and wife between them after 1994 and on this ground the petition for desertion was also entertained. 3 6. The wife filed her Written Statement and denied all the allegations leveled against her and opposed the petition for divorce on the ground of cruelty. The appellant examined himself, whereas the respondent examined herself, her brother – Gurunath Manohar Chavan and one employee – Avinash Narayan Ramdasi from the MTNL. It was the case of the wife that the appellant had employed Rajeshri Karadkar in 1993 and developed an illicit relationship with one her. She further alleged that in the year 1994 the appellant told her about his intention to marry Rajeshri. His family members also supported his proposal but she opposed it. She lodged the complaint on 19/11/1999 with the police station and she alleged that thereafter she was not allowed to enter the house. Initially, she was working with a company by name SEEPZ and after one and half years of marriage the appellant asked her to leave the job as his business was expanding. He employed 10-12 lady employees and one of them was Rajeshri, with whom he has married, and has a son by name Abhishek from the second wife, alleged the respondent. She also stated that the appellant was staying with his second wife and she has changed her name as Pranali Pandhari Kirve. 7. The Family Court framed the following issues and answered Issue Nos.1 to 3A in the negative:- Issues Findings 1) Does the petitioner prove that the respondent In the negative treated him in cruel manner/cruelty? 2) Does the petitioner prove that the respondent In the negative 4 deserted him without any reasonable excuse/ cause? 3) Does the respondent prove that she is entitled In the negative to get a decree of restitution of conjugal rights? 3A) Whether he is entitled to have a decree of In the negative dissolution of marriage? 4) Whether respondent and her children are Yes entitled to get maintenance, then what order and quantum? 5) Whether petitioner is entitled to get As per final order litigation expenses from respondent? 6) What order and decree? As per final order On the issue of maintenance, the court allowed the claim partly and directed to pay maintenance at the rate of Rs.5000/- per month along with the litigation cost of Rs. 5000/-. The Family Court noted on evidence that the appellant was paying for the children’s education and maintenance as well and, therefore, no separate amount of maintenance has been provided for the daughter. 8. The appellant admitted that he left the company of his family on his own and contended that after the police complaint was filed by the respondent, he left the house. The present house occupied by the respondent is owned by him and in addition he has 5 other premises in Mumbai and has some property at Ratnagiri as well. The elder son is studying at Ratnagiri and other two children are staying with the respondent. Initially, he denied to have any business at Ratnagiri but in his cross-examination when he was confronted with the copy of the “Maharashtra Times” newspaper (Exh. 47), he admitted that he had such a business in the name and style as “Abhishek Enterprises” and that he was given the award of successful businessman for Abhishek Enterprises, Ratnagiri. It is the case of the respondent – wife that the petitioner married Rajeshri Kharadkar, changed her name to Pranali wife of Pandhari Kirve and from her he begot a son by name Abhishek. PW 3 – Avinahs Narayan Ramdasi is an employee of the MTNL and in his evidence the documents at Exhs. 51 to 54 came on record i.e. Affidavit, telephone application, telephone bill etc. PW 2 – Gurunath Chavan, the brother of the respondent brought on record the telephone bill at Exh. 46 which indicated that Rajeshri changed her name to Pranali. Rajeshri has also filed a criminal complaint against the respondent for defamation in the court of Metropolitan Magistrate at Vikroli and the appellant admitted that he was accompanying her to said court on every date and PW 2 – Gurunath was accompanying the respondent. The said complaint came to be dismissed for non prosecution. It has also come in evidence of the appellant that he had three telephone lines in his office and one of them was Telephone No. 25795908 and he claimed that it was in his name. The petitioner initially had denied that Rajeshri and Pranali are two different women but when he was confronted with the photographs at Exhs. 45 and 51 he admitted that both the photographs belonged to the same person and impliedly Rajeshri and Pranali are one and the same person. The telephone address of the bill brought on record was Flat No. 2, Vikroli Chawl, Surya Nagar, which was a residential address of the petitioner, as he admitted in the cross examination and the 6 telephone bill brought on record and other documents through the evidence of PW 3 – Avinash that Pranali wife of Pandhari Kirve had also furnished very same address and Telephone No. 25795908 was in her name before it was surrendered. The appellant also admitted in his depositions before the Family Court that Classic Enterprises as his proprietary concern and it has a website which shows that Rajeshri is Finance Manager. The Telephone Application/affidavit at Exh. 54 indicated that the applicant/affiant was Pranali wife of Pandhari Jayaram Kirve. 9. On evaluating the above evidence placed before it, the Family Court rightly recorded that it was the petitioner who had deserted his family and he was living as the husband of Pranali Pandhari Kirve who was formerally known as Rajeshri Kharadkar. It was under these circumstances, the claim of the respondent for restitution of conjugal rights was not pressed for by her and, therefore, the Family Court did not grant such a relief. The evidence also indicated that it was the petitioner who was guilty of subjecting the respondent with mental cruelty by living with another woman as her husband. The Family Court also noted that he was paying for his children’s education and other expenses and was discharging his duties as a father. The grounds of desertion and cruelty alleged by the appellant for seeking divorce from the respondent have been rightly turned down by the Family Court, which rightly noted that the appellant was taking the benefit of his own wrongs. Hence, the reasoning set out by the Family Court in support of the impugned order cannot be said to be erroneous or illegal so as to call for interference in this appeal. 10. Hence, this appeal fails and the same is hereby dismissed. 7 11. Civil Application No. 134 of 2008 does not survive and the same shall stand disposed as such. (S.J.VAZIFDAR,J.) (B.H.MARLAPALLE,J.)