Biren Vaishnav, J
1. First Appeal No.1016 of 2018 has been filed by the appellant-wife challenging the judgement and order dated 11.10.2017 passed by the Principal Judge, Family Court, Vadodara, in Family Suit No.1188 of 2010. Family Suit No.1188 of 2010 was filed by Dinesh Jasbhai Patel-the husband, the respondent in First Appeal No.1016 of 2018 by which he prayed for a decree of divorce under Section 13 of the Hindu Marriage Act on the ground of desertion and cruelty. By the aforesaid judgement and order, the suit of the plaintiff husband was allowed. The marriage between the appellant and the respondent was directed to be dissolved. Hence, the appeal by the wife.
2. First Appeal No.1957 of 2018 has been filed by the husband-original plaintiff challenging only that part of the judgement and order by which, the husband has been directed to pay Rs.6000/-per month to the wife towards her maintenance amount and Rs.4000/- for the maintenance of minor daughter Shreeja.
3. Facts in brief indicate that it was the case of the husband – Dineshbhai Patel that having married the appellant of First Appeal No.1016 of 2018 on 04.02.2006, he found that on one or the other pretext, the appellant-wife would leave the matrimonial home which happened from February 2008 without reasonable cause and therefore, the husband is entitled to a decree of divorce on the ground of desertion. It was his case too that the wife having carried out abortion without his consent, tantamounted to mental and physical cruelty. After examination of witnesses on behalf of the wife and the husband, the Family Court came to the conclusion that the parties had no good relations from the date of separation and from the perusal of the entire testimony of witnesses of both parties, the Trial Court found that the couple was only for some time interested to stay together and therefore it was not possible to resolve the dispute. The marriage appeared to be broken without any possibility of reunion and therefore, the decree of divorce was passed.
4. In the First Appeal No.1016 of 2018, where the wife had challenged the decree of divorce, Ms.Khushbu Vyas learned counsel for the appellant would make the following submissions:
4.1 Ms.Vyas would submit that on the basis of the evidence of the witnesses of the husband and the defendant wife respectively, the reliance placed by the Court on the settlement deed Exh.62 was misconceived. She submitted that compromise deed Exh.62 was seriously disputed by the wife on the ground of fraud. The Trial Court committed an error in not believing the stand of the wife only on the ground that the wife had not filed any FIR pursuant to the stand taken that the settlement deed was obtained by fraud.
4.2 Ms.Vyas would submit that the Trial Court failed to consider the fact that even after the execution of the settlement deed by which the respective parties had decided to withdraw their cases, though the case under the Domestic Violence Act was withdrawn by the appellant-wife as per the condition in the deed, the husband did not carry out such withdrawal. Having not honored the settlement, obviously when a case was made out that in such a settlement the signature of the appellant wife was disputed by her, there was no ground on which the decree of divorce could have been granted.
4.3 Ms.Vyas would further submit that as per Section 13 of the Hindu Marriage Act desertion has to be proved for a continuous period of not less than two years immediately preceding the presentation of the plaint. What is evident from the pleadings in the plaint and which is not even disputed by the husband is that the husband sent a notice on 03.10.2009 for restitution of conjugal rights and a petition for divorce was filed on 10.10.2009 within eight days from the date of the notice. Ms.Vyas would submit that in the petition for divorce filed by the respondent husband, it was an admitted fact that in February 2008, the appellant brother had come to take the wife from the matrimonial home and the wife gave birth to a baby girl. From the cross-examination of the husband, Ms.Vyas would submit that it was even admitted that she had accompanied the husband to Dakor by walking and therefore from October 2008 to October 2009 the desertion even if proved, was only for a period of one year and not that of two years as stipulated under the provisions of the Hindu Marriage Act.
4.4 Ms.Vyas would further submit that by way of evidence, Exhs.140, 141, 142, 143 and 146, it has come on record that even during the pendency of the divorce proceedings, the appellant-wife had gone to the matrimonial home in the year 2016 on 04.08.2016. On 07.08.2016 she took a leaving certificate from the Dabhoi school so that the daughter can be admitted to a school in Vadodara and that these documents too showed that both the husband and wife met at guesthouse and hotel alone to cohabit the marriage which clearly proved that there was in fact no desertion. Ms.Vyas would submit that from the witness of the defendant who was cross-examined viz. Bhavesh Rajubhai Rabari this fact was proved. Even the real brother of the husband Mitesh admitted that the wife used to visit the matrimonial home frequently and reside with the family. The fact that the husband had an extramarital relationship with a neighbor-a lady from Uttar Pradesh, was also denied. The Trial Court, in Ms.Vyas’s submission committed an error in not appreciating the fact that the wife had clearly deposed that she was ready to go to him and that on social occasions, she would visit the matrimonial family. Ms.Vyas would rely on the documents viz. those produced with the Civil Application for production of additional evidence to suggest that there were various whats-app chats communicated between the husband and wife which indicated clear proximity that they were continuously in touch with each other, they would talk to the daughter, that the relationship of the husband and wife continued including the physical relations and that even it was an admitted fact that when the wife returned at one stage, the husband left the house locking the same so as to prevent the wife from reunion and thereby creating a case of desertion.
4.5 Ms.Vyas would submit that as far as the ground of cruelty is concerned, the issue of cruelty was added more than seven years after the suit was filed on 06.02.2017 and the only ground which was not even pleaded in the plaint was that due to an earlier abortion which was performed without notice to the husband, a ground of cruelty was created. Such a ground was neither mentioned in the original plaint nor was any medical evidence produced on record to suggest such a behavior on the part of the wife. In fact, it had come on record that the wife was compelled to walk to Dakor during her pregnancy. That, with a view to save the marriage and in the welfare and in the interest of the child, the appellant-wife did not file any proceedings except the one under the Domestic Violence Act, which she withdrew on the basis of the settlement. Having so withdrawn the case, it was a fraud played on her inasmuch as the wife had admitted in the cross-examination that the signatures were obtained by fraud to create evidence against the wife. Even if the settlement is accepted, as per the settlement, the husband did not withdraw the FIR against the father-in-law. The wife had a clear and a bona-fide intention to reside with the husband. She would defend the order of alimony directed by the Trial Court but also submit that due to the conduct of the husband, she was entitled to larger amount of alimony as the husband was working and earning a good salary.
5. Mr.Rituraj Meena, learned counsel for the respondent husband would support the order of the Trial Court. He would submit that the evidence brought on record in terms of the testimony of the husband at Exh.22 would indicate that in light of the settlement, both the parties would withdraw the cases, the wife came to the matrimonial home in August 2016, went back to obtain leaving certificate of their daughter, came back on 10.08.2016 and then went back to Dabhoi on 12.08.2016 and then though briefly came back to Dabhoi, she returned from Vadodara back to Dabhoi not to come back again.
5.1 Mr.Meena would submit that it was clear case of desertion at the hands of the wife as a result of which, the husband was entitled to the decree of divorce on the ground of desertion and cruelty.
5.2 Mr.Meena would submit that even after the settlement as is deposed from the husband, the wife did not come back to the matrimonial home and she did only come back for a brief period of five to seven days as deposed by the witnesses Prahladbhai, Jagdishbhai and Lakshmanbhai.
5.3 Mr.Meena would submit that on the birth of daughter Shreeja, on one or the other pretext as observed by the Trial Court, the wife would never come back to her matrimonial home and perform her conjugal rights which too amounted to cruelty.
5.4 Mr.Meena would submit that no case of torture was made out, inasmuch as, when the couple went for a walk to Dakor, he was not aware of the pregnancy of wife. Reading the judgement and relying on the testimony of Sunil Jhaverbhai Patel, Mr.Meena would submit that admittedly, the compromise had taken place which deed at Exh.22 indicated that the wife had admitted that she was often deserting the family and therefore the case of desertion too was made out.
5.5 Mr.Meena submits that the learned Family Court rightly held that the wife’s unilateral decision to abort, constituted as cruelty. The wife admitted that she visited the matrimonial home only on social occasions.
5.6 Mr.Meena further submits that the couple staying together during the divorce proceedings as part of settlement trials does not change the overall circumstances. The wife’s brief stay in August 2016 is insignificant in this context. It is undisputed that she has not resided with her husband since 2007. He submits that the marriage took place on 4th February, 2006 and the suit was filed on 12th October 2009. Although it is mentioned in the suit that the wife deserted the husband since February 2008, it has been consistently reiterated that from the very beginning of the marriage, the wife did not stay with the husband and frequently returned to her paternal home.
6. Having considered the submissions made by the learned counsels for the respective parties, we have essentially first considered whether the husband was entitled to a decree of divorce on desertion. The Trial Court has been impressed by the fact that the evidence would indicate that the wife would frequently leave her matrimonial home to return to her maternal home and this back and forth attitude was an enough indicator that the wife had deserted the husband. The additional fact that weighed with the Trial Court in approving the stand of the husband that the wife had deserted him was the settlement arrived at Exh.62. When the plaint at Exh.1 is read of the appellant-husband, what is evident is that he prayed for a decree of divorce only on the ground of desertion on account of the fact that the wife left the matrimonial home when her brother came to pick her up in February 2008 and did not turn back after the birth of their daughter Shreeja. In a plaint which is running into one and a half page, the only ground that weighed with the plaintiff husband to file for a decree of divorce on the ground of desertion is this very issue. Admittedly, as made out from the plaint, the case of the husband that the wife had deserted him in February, 2008, indicates that after that relevant date set out in the plaint, the husband gave a notice for restitution of conjugal rights on 03.10.2009 and within eight days of the notice, filed a plaint for divorce. Admittedly therefore, to make out a case for desertion, the statutory frame set out in Section 13 of the Hindu Marriage Act was not satisfied. There is one more reason that when the plaint is perused, the sole ground of an incident of February 2008, the wife in a reply which was filed extensively denying the stand of desertion, it had come on record that she denied desertion. That she was at times taunted for not having brought dowry and that she was compelled to go to Dakor prior to the birth of her daughter Shreeja on 12.10.2008. It was her case that she had to undergo treatment on 10.04.2008 at a hospital as a result of the strain due to the walk and in fact at one stage when she went back to the matrimonial home, the husband locked the house and went away so as to avoid the reunion. The learned Trial Judge, it appears, rather than appreciating the evidence of the witnesses and weighing their options, based on the testimony, has essentially relied on a settlement deed entered into by and between the wife and husband on 11.02.2010 by which, the deed indicates that the wife admitted that she would leave the house often to go to her maternal home. That she had received a notice, that she must return and she did not. That as per the settlement, the cases which were filed inter-se between the parties would stand withdrawn. It has also come on record from the testimony of the witnesses that the wife acted as per the settlement and withdrew her case for domestic violence whereas the husband did not withdraw the FIR against the father-in-law. The husband’s case in the FIR was that while he was in premises of the Court and riding a motorbike, the father-in-law pushed him off the moving motorbike resulting in injuries. The evidence of husband Dinesh Jashbhai Patel is on record. When one reads the cross-examination, what is evident is that he had made efforts to see that the wife comes back and that the family members had attempted to bring a reunion. The examination of the testimony of the husband would indicate that he denied knowledge of the fact that he was aware of a conception of a child when he took the wife for a temple trip to Dakor. The evidence of the wife would indicate that she had disputed the document at Exh.62 and submitted that signatures were obtained by fraud. Even without getting into the controversy of the settlement deed, which has weighed with the Trial Court in attributing the ingredient of desertion against the wife, merely because the document and the testimonies of the witnesses indicate the frequent back and forth of the wife from the matrimonial home to the maternal home would by itself not make out a case of desertion.
6.1 The term desertion has been well defined by several decisions of the Supreme Court. Mere temporary abandonment would not amount to desertion. The case of Bipin Chandra v. Prabhavati reported in AIR 1957 (SC) 176, while explaining the word ‘desertion’, the Supreme Court had said that the only physical act of leaving the home is not to be seen and what is to be seen is the intention to bring cohabitation to an end which on the basis of the evidence would indicate otherwise. Merely because the wife kept going back and forth from the matrimonial home and then being brought back at various intervals would not indicate a circumstance of desertion. We have also undertaken an exercise to go through the cross-examination of the wife. At best, what is culled out from the circumstances that after the birth of the child Shreeja in October 2008, it was at best in the early beginning of 2008, that the wife may have left her matrimonial home. The suit for divorce was filed on 12.10.2009 and therefore, the ingredient of desertion to invoke the provisions to get a divorce does not stand satisfied.
6.2 It is Mr.Meena’s submission that the parties were meeting even during the course of pendency of these proceedings at various guest-houses and hotels and which is proved by the testimony of the manager of the guest-house and the documents indicate that the appellant-wife and the husband continued to meet and cohabit despite the pendency of proceedings for divorce. The circumstance therefore, would strongly suggest that even the husband-plaintiff was in no frame of mind to establish that the wife had deserted when he continued to meet the wife during the pendency of these proceedings.
6.3 What is also apparent from the alternative plea of cruelty that is raised by the plaintiff-husband is that it is his case that an abortion was carried out by the wife when she conceived in the first phase of marriage without the knowledge of the husband. This is a ground which is never raised in the plaint in the matrimonial case. At the cost of reiteration, we may say that the only ground in a para of the plaint is that post February 2008 the wife did not come back to the matrimonial home when she left on conception of the daughter born in October, 2008. The addition of the issue of cruelty seven years after the filing of suit for divorce, was therefore designed at the hands of the husband to manufacture the ground in addition to that of desertion so as to obtain a decree of divorce. In absence of any evidence and/or discussion on the issue, clearly, on reading of the judgement under challenge, no case is made out to nullify a marriage on the ground of cruelty too.
6.4 On the twin grounds of desertion and cruelty therefore, the assessment of evidence would indicate that the husband was not entitled to obtain a decree of divorce.
7. For the reasons aforesaid therefore, First Appeal No.1016 of 2018 filed by the wife challenging the decree dated 11.10.2017 dissolving the marriage on the ground of desertion and cruelty is quashed and set aside. The appeal is allowed.
8. In light of the reasons assigned in First Appeal No.1016 of 2018, we see no reason to interfere with the judgement and order on the question of alimony at the hands of the appellant husband in First Appeal No.1957 of 2018. Having reversed the decree of dissolving the marriage, the appeal of the husband therefore i.e. First Appeal No.1957 of 2018 is dismissed.
9. Having considered the evidence on record as sufficient, we see no reason to entertain the Civil Application for additional evidence filed at the hands of the wife and therefore we dispose of the Civil Application. Order accordingly.
10. In view of the disposal of the main appeal, connected Civil Applications will not survive and hence, they also stand disposed of.
