Judgment:
A.P. Shah, J.
1. This is an appeal preferred by the appellant wife against the judgment and order of the Family Court, Pane, granting decree of judicial separation to the respondent-husband.
2. The Trial Court has granted a decree for judicial separation on the ground of desertion. In this appeal, the appellant has challenged the decree for judicial separation and the respondent has filed cross-objections claiming a decree for divorce.
3. The brief admitted facts may be stated first:
The appellant and the respondent married according to the Hindu Vedic rites at Pune on April 9, 1983. The couple is blessed with two sons Chetan and Shrikant. The appellant left the matrimonial home in October 1987 and since then she has been staving with her parents along with son Shrikant. The respondent issued a notice dated August 15, 1988 requesting the appellant to come back to the matrimonial home and to resume the matrimonial relationship. There was no response from the appellant. In 1990, the appellant filed an application under Section 125 of the Criminal Procedure Code for maintenance. The learned Magistrate granted to appellant maintenance at the rate of Rs. 200/- and to son Shrikant at the rate of Rs. 125/- per month.
4. The respondent filed the petition in the Family Court, Pune on October 7, 1990 claiming divorce firstly on the ground that the appellant is guilty of causing mental cruelty on the respondent and secondly on the ground of desertion. The case of the respondent as made out in the petition is as follows :
The relations between the respondent and the appellant were cordial for the initial one or two months after the marriage. The appellant thereafter started raising quarrels on petty grounds. She used to pick up quarrels with the respondent and his mother and also with the other relations of the respondent and her behaviour was arrogant. She also started insisting that the respondent should buy a separate flat for their residence and used to quarrel with the respondent and his family members on this count. She neglected and ill-treated her elder son Chetan. Then without any reason, she left the matrimonial home sometime in October 1987 with the younger son Shrikant and never returned back. She has no desire to resume cohabitation with the respondent. On these allegations, the respondent claimed a decree for divorce under Sections 13(1)(ia) and 13(1)(ib).
5. As far as the written statement is concerned, the appellant denied all the allegations made in the petition. According to the appellant, after the marriage, the respondent and his family members started making demands of money and valuable articles from her father who was not in a position to meet such demands though on one or two occasions, he made some payments to the respondent. As the appellant was unable to meet the demands made by the respondent and his family members, she was harassed and ill-treated by them. On October 10, 1987, after some quarrel, the respondent poured kerosene on her and tried to set her on fire and thereafter she was driven out of the house with the younger son Shrikant. The appellant also alleged that the respondent has contracted a second marriage with one Kalpana, daughter of Murlidhar Qulwankar. The appellant thus alleged that it was the respondent who refused and neglected to maintain the appellant and her son.
6. Before the Family Court, the respondent examined himself and his father in order to establish the allegations of mental cruelty and desertion. The appellant led the evidence of her own and that of her father. On appreciation of the evidence led by the parties, the Family Court held, inter alia, that the ground of mental cruelty was not established but accepted the ground of desertion. The Family Court recorded a finding that the defence of the appellant that the respondent had tried to set her on fire was not established. The Family Court also recorded a finding that the appellant left the matrimonial home on her own accord. The Family Court disbelieved the story of the appellant about the second marriage of the respondent. The Family Court, however, felt that having regard to the fact that the respondent and appellant were related even prior to the marriage and that dispute between them is not very serious and hence, sufficient time should be given to them for reconciliation. In that view of the matter, the Family Court passed a decree for judicial separation instead of passing a decree for divorce.
7. Mr. Hushing, the learned Counsel appearing for the appellant submitted that the decree passed by the Family Court is contrary to the evidence on record. Mr. Suvarna, the learned Counsel appearing for the respondent supported the reasoning of the Family Court and further submitted that having regard to the fact that the parties are residing separately for last eight years and there being no chance or hope of reconciliation, the decree for divorce be passed in favour of the respondent.
8. As far as the ground of mental cruelty is concerned, we have gone through the evidence led by the parties with the assistance of the learned Counsel and we find that the respondent has failed to establish the case of mental cruelty within the parameters of Section 13(i)(ia) of the Act. The Family Court has given cogent and valid reasons for rejecting the case of the appellant under Section 13(1)(ia). We are in complete agreement with the view taken by the Family Court and we do not see any reason to interfere with this finding.
9. The main question is whether the respondent has established the ground of desertion. In order to appreciate the case of the respondent, it will be necessary to mention few admitted facts. The appellant left the matrimonial home in October 1987 and since then, she has been staying with her parents. She has not made any efforts for reconciliation and there is nothing on record to show that she wanted to resume cohabitation with the respondent at any time after she left the matrimonial home in October 1987. She has failed to respond to the notice given by the respondent on August 15, 1988. Mr. Hushing, however, submits that there was sufficient cause for the appellant not to cohabit with the respondent. Mr. Hushing submits that the appellant was continuously harassed and ill-treated by the respondent and his family members and finally in October 1987, the respondent tried to kill the appellant. She also submits that in view of the second marriage of the respondent, the appellant is justified in staying away from the matrimonial home.
10. On perusal of the record, we find that there is no evidence worth the name about the alleged second marriage. The appellant has deposed in her evidence that she learnt about the second marriage of the respondent from her grand-father. The appellant has not examined her grand-father in support of her case. No evidence is adduced to establish the second marriage. In our opinion, therefore, the Family Court was right in disbelieving the case of the appellant that the respondent has contracted a second marriage.
11. Turning now to the alleged incident of October 10, 1987, we find that the story of the appellant is not truthful and credible. A perusal of the record shows that the appellant has tried to improve her case at the time of the trial. The version of the appellant appears to be exaggerated and totally unconvincing. It is also important to note that there is no corroboration to the alleged incident. It is also difficult to believe that the appellant and her father will keep quiet in spite of the serious nature of the alleged incident.
12. Having regard to the totality of the circumstances, we find ourselves unable to take a view contrary to the one taken by the Family Court. We do not see any justification for the appellant in leaving the matrimonial home in October 1987. In our opinion, the Family Court rightly decided the issue of desertion in favour of the respondent.
13. Now, the question which remains to be considered is whether the Family Court was right in passing a decree for judicial separation instead of a decree for divorce. It is true that the appellant and the respondent were related even prior to the marriage. But after going through the record and having regard to the passage of time of eight years since the parties are staying separately, we do not think that there is any possibility of reconciliation between the parties. In any event, two years have passed since the date of the judgment of the Family Court and, therefore, we think that there is no point in upholding a decree for judicial separation. Having regard to the facts and circumstances of the case, we are of the opinion that the respondent is entitled to a decree for divorce on the ground of desertion.
14. For the reasons recorded hereinabove, we dismiss the Family Court Appeal No. 45 of 1992. We allow the cross-objections of the respondent to the extent that instead of a decree for judicial separation, there will be a decree for divorce under Section 13(1)(ib) of the Hindu Marriage Act in favour of the respondent. The respondent shall pay by way of maintenance a sum of Rs. 400/- per month to the appellant and a sum of Rs. 200/- per month for the minor son Shrikant who is in the custody of the appellant, from the date of the judgment of the Family Court i.e., 6.9.1991. The arrears of maintenance shall be paid within three months from today and the maintenance for the month of October 1993 shall be paid on or before 10th of that month and the maintenance for subsequent period shall be payable by 10th of every succeeding month. No order as to costs.
15. Issuance of certified copy of this judgment is expedited.