Sanjay vs Usha Khokar

Shailendra Shukla, J

This appeal under Section 19 of the Family Court Act has been preferred against the order dated 3.3.2008, passed by the principal Judge, Family Court, Indore in HMA Case No.57/07, whereby the application of the appellant filed under Section 13(1) of the Hindu Marriage Act was dismissed.

Brief facts of the case are that the marriage of the appellant with the respondent was solemnized on 5.5.1992 according to Hindu rites and out of this wed-lock 3 children were begotten. The respondent deserved the appellant taking along with her two sons aged 14 and 12 years and left her daughter behind with the appellant. The respondent used to pressurize the appellant to live separately from her parents and sisters. The appellant being the only son of the parents has his duty to look after his old parents and two sisters who are not married as yet.

The respondent lodged a false report against the appellant. Due to cruel behavior of the respondent, the appellant could not perform his official duties and was forced to leave his parents to placate the respondent. The respondent further pressurized him to live far away from his parents.

Later on the respondent deserted her matrimonial house on 14.1.2006 and since then, has been living separately. All attempts to bring her back have failed. The respondent ensured that the appellant may not keep contact with his two sons who were with the respondent- wife.

The respondent remained ex parte during the course of the proceedings before the Family Court.

The Family Court, vide judgment dated 3.3.2008, considered the ex parte evidence, but formed an opinion that it is less than two years since both the parties separated from each other and also did not find any evidence which would show that appellant had made efforts to bring his wife back and on these grounds the suit for dissolution of marriage was rejected.

In appeal, it has been stated that the respondent - wife had remained ex parte and was not interested in establishing conjugal relations with the appellant and the respondent had deserted appellant and the period of separation between two is more than two decades old.

On these grounds, it is submitted that there is irretrievable break down of the marriage and, therefore, marriage has been sought to be dissolved.

It is quite clear that the respondent had remained ex parte in the original suit and has not made any endeavour to counter the submissions of the appellant either in the suit.

The Apex court in the case of Sandhya Rani vs. Kalyanram Narayanan, (1994) Suppl. 2 SCC 588, has held that when the parties have been found to be living separately for a long duration then, marriage would be considered to have irretrievably broken down. Similar observation has been made by the Apex court in the case of Chandrakala Menon (Mrs.) & Anr. vs. Vipin Menon, 1993 Vol. II SCC page 2 and Smt.Kanchan Devi vs. Praveen Kumar Mittal, (1996) 8 SCC page 90.

It is borne out from perusal of the ex parte evidence that there is thus irretrievable break down of marriage and, therefore, this appeal for dissolution of marriage is allowed. The order dated 3.3.2008, passed by the principal Judge, Family Court, Indore in HMA Case No.57/07, is set aside. Decree for dissolution of marriage is directed to be drawn. Appellant shall bear the costs incurred.

A copy of this order be sent to the trial court for compliance. The appeal stands disposed of in above terms.