1. The present Second Appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellant herein – original defendant – wife to quash and set aside the judgement and decree dated 18/03/1998 passed by learned Extra Assistant Judge, Junagadh in Hindu Marriage Petition No.85 of 1991, by which, learned Trial Court has passed decree of divorce u/s.13(1)(i-b) of the Hindu Marriage Act,1955, which has been confirmed by learned Appellate Court vide impugned judgement and order dated 15/10/2001 in Regular Civil Appeal No.60 of 1998.
2. Respondent herein – original applicant – husband has filed Hindu Marriage Petition No.85 of 1991 in the Court of learned Extra Assistant Judge, Junagadh against the appellant herein – original defendant – wife for obtaining decree of divorce u/s.13(1)(i-b) of the Hindu Marriage Act contending inter alia that the appellant-wife has deserved him without any reasonable cause. That the said petition was opposed by the appellant herein – original defendant – wife on the ground that in fact it was the husband, who use to harass and ill-treat her. That learned Trial Court framed issues and thereafter both the parties led evidence oral as well as documentary and on appreciation of evidence, learned Extra Assistant Judge, Junagadh by judgement and decree dated 18/03/1998 allowed the said petition and decreed the suit and declared that the marriage solemnized between the parties is dissolved u/s.13(1)(i-b) of the Hindu Marriage Act.
Being aggrieved by and dissatisfied with the judgement and decree dated 18/03/1998 passed by learned Trial Court in Hindu Marriage Petition No.85 of 1991 in passing decree of divorce, the appellant herein – original defendant – wife preferred Regular Civil Appeal No.60 of 1998 before learned District Court, Junagadh, which has been dismissed by learned District Court, Junagadh by impugned judgement and order dated 15/10/2001 and has confirmed the judgement and decree of divorce passed by learned Trial Court in Hindu Marriage Petition No.85 of 1991.
Being aggrieved by and dissatisfied with the judgement and orders passed by both the Courts below more particularly judgement and decree passed by learned Trial Court in passing decree of divorce, the appellant herein – original defendant – wife has preferred the present Second Appeal u/s.100 of the Code of Civil Procedure.
3. Mr.Anshin Desai, learned advocate appearing on behalf of the appellant herein - wife has vehemently submitted that learned Trial Court has materially erred in passing decree of divorce u/s.13(1)(i-b) of the Hindu Marriage Act. It is submitted that learned Trial Court has materially erred in holding that the appellant – wife has failed to prove the cruelty by the husband. It is submitted that as there was ill-treatment, which compelled the appellant herein-wife to leave the house of the husband and, therefore, learned Trial Court ought not to have passed decree of divorce. By making above submissions, it is requested to allow the present Second Appeal.
4. The present Second Appeal is opposed by Mr.Shakeel Qureshi, learned advocate appearing on behalf of the respondent herein - original applicant – husband. It is submitted that as such on appreciation of evidence, both the Courts below have concurrently found that the appellant herein- wife has deserted the husband without any reasonable cause and justification. That on appreciation of evidence, both the Courts below have concurrently held that the appellant- wife has failed to prove cruelty by the husband. Therefore, it is submitted that there is concurrent finding of facts given by both the Courts below, which are on appreciation of evidence and the same are not required to be interfered with by this Court in exercise of power u/s.100 of the Code of Civil Procedure and, therefore, it is requested to dismiss the present Second Appeal.
5. Heard learned advocates appearing on behalf of the respective parties and considered judgement and orders passed by both the Courts below as well as gone through the entire record of the case, which was received from the learned Trial Court. Considering the judgement and orders passed by both the Courts below, it appears that there are concurrent findings of facts given by both the Courts below holding that the appellant herein – wife has deserted the husband without reasonable cause and justification and the appellant-wife has also failed to prove the cruelty on her by the husband. This Court has considered entire evidence of the case and it appears that findings of facts given by both the Courts below are on appreciation of evidence. On appreciation of evidence, both the Courts below have rightly passed decree of divorce u/s.13(1)(i-b) of the Hindu Marriage Act on the ground of desertion by the appellant-wife. As such learned advocate appearing on behalf of the appellant herein – wife has failed to point out any substantial question of law arising in the present Second Appeal.
6. In view of the above and for the reasons stated hereinabove, the present Second Appeal fails and the same deserves to be dismissed and is accordingly dismissed. Ad- interim relief, if any, stands vacated forthwith. No costs.
*dipti [M.R.SHAH,J]