[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has been preferred by the appellant herein – original plaintiff to quash and set aside the impugned judgment and decree dated 12.01.1996 passed by the learned Assistant Judge, Jamnagar in Hindu Marriage Petition No.56 of 1992 by which the learned trial Court dismissed the said petition filed by the appellant herein – original applicant to obtain the decree of divorce under Section 13(1)(ib) of the Hindu Marriage Act (hereinafter referred to as “the Act”) on the ground of desertion by the respondent wife as well as the impugned judgment and order dated 15.12.2001 passed by the learned Appellate Court passed in Regular Civil Appeal No.35 of 1996 by which the learned Appellate Court has dismissed the said Appeal preferred by the appellant herein and has confirmed the judgment and decree passed by the learned trial Court dismissing the H.M.P. [2.0] That the appellant herein preferred H.M.P. No.56 of 1992 in the Court at Jamnagar for getting the decree of divorce under Section 13(1)(ib) of the Act i.e. on the ground of desertion by the respondent wife.
[2.1] It was the case on behalf of the applicant that the marriage between the applicant and opponent was solemnized / performed according to the Hindu rites and ceremonies in the year 1976 and out of the said wedlock one son is born to them who was aged 13 years. It was the case on behalf of the appellant husband that he was residing at Jamnagar with his mother, father and wife and was serving in the government department. That he was transferred from Jamnagar to Ahmedabad. It was the case on behalf of the appellant that due to his transfer to Ahmedabad he had to go to Ahmedabad where he could not obtain the government quarter and therefore, he used to visit his own house at Jamnagar and stay with the opponent. It was the case on behalf of the plaintiff that as opponent's father was rich person and having good influence and that she studied upto SSC, she was arrogant lady and she did not intend to continue the marriage life and therefore, she left the house of the appellant. It was the case on behalf of the appellant that they are residing separately since last 7 years and as the respondent has gone to reside at her parental home at Ahmedabad and that the wife has deserted the appellant husband without reasonable cause or excuse, it was prayed to pass the decree of divorce under Section 13(1)(ib) of the Act.
[2.2] That the application was opposed by the respondent wife by filing written statement at Exh.10. It was the case on behalf of the respondent wife that as such due to the cruelty and harassment by the husband, she was compelled to leave her matrimonial house and go to her parental house. It was the case on behalf of the respondent wife that the appellant husband used to tell her that he does not like her and was giving her mental torture to her. It was the case on behalf of the respondent wife that as the appellant husband wanted to marry second time with another lady, with whom he had extramarital relation, the husband was harassing her.
[2.3] That the learned trial Court framed necessary issues at Exh.26. That the appellant husband should prove the desertion by the opponent wife by examining herself at Exh.29 and his brother Bharatsinh at Exh.55. That the opponent wife to prove her case examined herself at Exh.61; her father Narendrasinh Zala at Exh.62 and one Dashrathsinh Sarvaiya, the cousin brother of the husband at Exh.63; documentary evidences were produced at Exhs.42 to 46, 48 to 55, 54, 64 and 65. That on appreciation of evidence, the learned trial Court specifically held that the opponent wife was compelled to leave the house of the husband because of the cruelty and illtreatment committed by the appellant husband and therefore, the desertion is for reasonable cause and consequently the learned trial Court dismissed the H.M.P. and refused to pass the decree for divorce by impugned judgment and decree dated 12.01.1996.
[2.4] Being aggrieved and dissatisfied with the judgment and decree dated 12.01.1996 passed by the learned Assistant Judge, Jamnagar in H.M.P. No.56 of 1992, the appellant herein – original applicant preferred Regular Civil Appeal No.35 of 1996 before the District Court, Jamnagar and the learned Principal District Judge, Jamnagar by impugned judgment and order dated 15.12.2001 has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court.
[2.5] Being aggrieved and dissatisfied with the impugned judgment and order passed by both the Courts below in refusing to grant the divorce decree under Section 13(1)(ib) of the Act i.e. on the ground of desertion by respondent wife, the appellant herein – original applicant has preferred the present Second Appeal under Section 100 of the CPC.
[3.0] Shri B.P. Munshi, learned advocate appearing on behalf of the appellant has vehemently submitted that both the Courts below have materially held that desertion by the wife was for reasonable cause. It is submitted that the learned trial Court has materially erred in holding that the respondent wife was compelled to leave the matrimonial house due to illtreatment and harassment by the husband. It is submitted that as such no instances of cruelty have been pointed out in the evidence. Therefore, it is submitted that in absence of any other evidence, the learned trial Court has materially erred in holding that the respondent wife was compelled to leave the matrimonial house due to harassment and illtreatment by the appellant – husband. It is further submitted by Shri Munshi, learned advocate appearing on behalf of the appellant that the findings of fact given by both the Courts below on desertion are not proper.
[3.1] Shri Munshi, learned advocate appearing on behalf of the appellant has further submitted that in any case as the appellant and opponent are residing separately since last 22 years, there is an irretrievable breakdown of marriage and therefore, it is requested to allow the present Second Appeal and pass a decree of divorce even on the aforesaid ground of irretrievable breakdown of marriage.
Making above submissions, it is requested to allow the present Second Appeal.
[4.0] Present Second Appeal is opposed by Shri Nehul Dave, learned advocate appearing on behalf of the opponent wife. It is submitted that both the Courts below have rightly concurrently found that the opponent was required to leave the matrimonial house due to the illtreatment and harassment by the husband. It is submitted that the aforesaid concurrent findings of fact given by both the Courts below are on appreciation of evidence. It is further submitted that as such the appellant did not like the respondent wife and he wanted to marry another lady with whom he had extramarital relation with whom the appellant is residing at present and out of the same they have got children also. Therefore, it is submitted that when the opponent was compelled to leave the matrimonial house or compelled to stay at her parental house, both the Courts below have rightly refused to grant divorce the decree. It is submitted that even today also the appellant is not paying the maintenance regularly and a huge amount is due and payable towards the maintenance. Under the circumstances, it is requested to dismiss the present Second Appeal.
[5.0] Heard the learned advocates appearing on behalf of the respective parties at length, considered and gone through the judgment and order passed by both the Courts below as well as the findings of fact given by both the Courts below as well as the evidence on record available from the R & P of the case.
[5.1] At the outset it is required to be noted that as such there are concurrent findings of fact given by both the Courts below that the opponent wife was compelled to leave the matrimonial house due to the harassment and illtreatment by the husband appellant. It appears that the findings of fact given by both the Courts below are on appreciation of evidence. The same are neither perverse nor contrary to the evidence on record. Under the circumstances, when there are concurrent findings of fact given by both the Courts below, considering the decision of the Hon'ble Supreme Court in the case of Umerkhan vs. Bismillabi alias Babulal Shaikh and Ors. reported in (2011) 9 SCC 684, the present Second Appeal is not required to be entertained as no substantial of law arises in the present Second Appeal. At this stage it is required to be noted that while admitting the present Second Appeal, the learned Single Judge has framed the following substantial question of law.
1. Whether the plaintiff proves that the refusal to cohabit with him at the place of service without any justifiable excuses amounts to constructive desertion under the provisions of Hindu Marriage Act, 1955?
2. Whether the denial of the defendant wife to live with him continuously for more than seven years immediately preceding the presentation of the petition amounts to willful neglect as contemplated by explanation attached to Section 13(1)(ib) of the Hindu Marriage Act, 1955?
3. Whether the plaintiff proves that the unfounded and baseless allegations of the defendant wife against the character of the plaintiff husband entitles the defendant wife to live separate as contemplated by the Act?
4. Whether the plaintiff proves that the defendant wife had deserted him due to her arrogance and luxurious way of life and unwillingness to live a peaceful married life on account of her being coming from a rich family and a daughter of an ExMinister and political leader as alleged?
5. Whether the plaintiff proves that the separation of the plaintiff and the defendant since 21/05/1995 i.e. about 17 years during the course of appeal, amounts to irretrievable broken down tie of marriage sufficient for obtaining a decree of divorce as alleged?
6. Whether the plaintiff proves that the defendant wife had deserted him without reasonable cause and had been guilty of willful neglect as alleged?
7. Whether the defendant has been able to prove that she had been illtreated or treated with cruelty as contended?
8. Whether the plaintiff proves that there are no reasonable grounds for drawing adverse inferences against him as per settled principles of law?
9. What order ?
As such the aforesaid cannot be said to be substantial question of law as observed by the Hon'ble Supreme Court in the case of Umerkhan (Supra). Learned advocate appearing on behalf of the appellant is not in a position to point out any substantial question of law arising in the present Second Appeal. Under the circumstances, when there are concurrent findings of fact given by both the Courts below given on appreciation of evidence with respect to desertion by the respondent wife for a reasonable cause due to illtreatment and harassment by the appellant husband and when the Courts below have refused to grant the decree of divorce, the same are not required to be interfered by this Court in exercise of powers under Section 100 of the CPC.
[5.2] Now, so far as the submission of Shri Munshi, learned advocate appearing on behalf of the appellant to allow the present Second Appeal and pass the decree of divorce on the ground of irretrievable breakdown of marriage as parties are residing separately since 20 to 22 years is concerned, at the outset it is required to be noted that as on today considering the provisions of the Act prevailing, on the aforesaid ground the decree for divorce cannot be passed. Even otherwise it is required to be noted that before the learned trial Court the appellant herein – original applicant prayed for decree of divorce solely on the ground under Section 13(1)(ib) of the Act i.e. on the ground of desertion only. Under the circumstances, on the aforesaid ground, divorce of decree cannot be passed in the present Second Appeal.
[6.0] In view of the above and for the reasons stated above, present Second Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. No costs.
(M.R. Shah, J.) menon