Gaurangbhai Jagdishbhai Patel vs Vs Shrimati Shimoliben Gaurangbhai Patel D/O Pankaj Ramprasad

Biren Vaishnav, J

[1.] This appeal has been filed by the appellant, challenging the judgment and decree of the Family Court, Ahmedabad in Family Suit No.1077 of 2015, by which, the learned Family Court has refused a decree of dissolution of marriage under the provisions of Hindu Marriage Act, 1955 (henceforth, “the Act, 1955”). The appellant-husband filed a petition for obtaining a decree of dissolution of marriage against the respondent-wife under Section 13(1) of the Act, 1955.

[2.] Perusal of judgment of the Family Court indicates that the appellant got married with the respondent on 29.01.2008. Out of the wedlock, a child Kushang was born on 28.05.2009.

[3.] The case of the appellant before the Family Court was that the wife was making unreasonable demands inasmuch as she desired to lead a luxurious life, which the appellant-husband being a peon doing private service, could not manage. The case of the appellant-husband before the Family Court was that the wife continued to misbehave and would pick up quarrels at small issues. An incident of shouting reported on account of the child’s behaviour in which she tried to stab herself is also set up as a ground for desertion and cruelty.

[4.] Two issues were framed by the Family Court as to whether the petitioner treated the respondent with cruelty as alleged in the petition and whether the petitioner proves that the respondent had deserted the petitioner for a continuous period of not less than two years preceding the presentation of the petition without reasonable cause and without consent.

[5.] Ms. Samata V. Patel, learned counsel for the appellant, would submit that the appellant was entitled to a decree of divorce on the ground that reading the cross-examination of the respondent itself would indicate that admittedly she was staying separately since year-2011, which proved the appellant’s case of the wife’s desertion without reasonable cause. Had she been willing to return to the matrimonial home as is evident from her evidence, she would have initiated proceedings for restitution of conjugal rights.

[6.] Perusal of the judgment of the Family Court, would indicate that while assigning the reasons for not accepting the version of the appellant for dissolution of marriage on the ground of desertion and cruelty, the Family Court on examination of the wife’s evidence, has found that the wife had apprehensions and reservations about the misbehaviour of her brother-in-law as is evident from the cross-examination, which, the learned Judge of the Family Court has appreciated that she had resided in the matrimonial home for approximately one and half year from 2008 to 2011, and thereafter, had to leave the matrimonial home because of the behaviour of the brother-in-law. On the aspect of mental cruelty appreciating the oral evidence, the learned Judge of the Family Court found that on certain trivial issues as not preparing a meal for the family members and the appellant, it cannot be said that cruelty was inflicted upon the appellant-husband so as to entitle him to obtain a decree of divorce.

[7.] During the course of submissions, a list of documents has been handed over to us by the learned counsel for the appellant and much emphasis had been laid on the admission and the cross-examination of the wife to suggest that it was an admitted fact of wife leaving the husband since the year-2011, and therefore, desertion was established.

[8.] We are not in a position to accept these submissions of learned counsel for the appellant, as perusal of the entire evidence of the respondent-wife before us, would indicate that she made all efforts to see that within the limited means that the family was living, she would want to co-operate with the appellant-husband. On the aspect of the allegations or reservations on the behaviour of her brother-in-law i.e. the appellant’s brother, she has in detail elaborated the unfortunate incident of misbehaviour at the hands of the appellant’s brother, which engineered reservations in her to part company albeit briefly with the husband-appellant herein. She has in fact shown a willingness to unite with the husband as is evident from her deposition. When the reasonings of the Family Court are viewed in light of this evidence and also the deposition of the husband, where in fact no ground of cruelty and/or dissolution is made out, we find that the issues framed by the Family Court that, whether the appellant had made out any ground for divorce on the ground of cruelty and whether the appellant-petitioner proved that there was a reasonable cause of desertion are not made out. Merely because the wife was compelled to leave her matrimonial home on an incident of misbehaviour of her brother-in-law would not give a licence to the appellant-husband to prove that the wife had deserted him to make out a ground to obtain a decree of divorce.

[9.] For the aforesaid reasons, therefore, we find no reason to entertain the present appeal. The appeal is dismissed, accordingly.