neglecting husband & desertion ; family court decree NOT perverse; divorce confirmed; Bombay HC

A married woman claims that her mother in law is bedridden &chewing tobacco!! She claims this is embarrassing, and want’s divorce ! (one of her claims inter alia)

Wedlock of APPROX two decades, two beautiful children, government employment for both husband and wife, still marriage on the rocks …what a sad sad state we Indians are in !

DIVORCE granted on grounds of wife’s desertion (sec 10 (i) (ix) of Indian Divorce act) by Family court and cofirmed by High court of Maharashtra.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 47 OF 2004

1. Mrs. Jaya Vijay Wavikar ]
Age 40 years, Occ: Service ]
as Stamp Vendor, Post Office, Pune ]

2. Miss. Snehal (Cynphia) Vijay Wavikar ]
Age 11 years, Occ: Education ]

3. Master Ashish Vijay Wavikar ]
Age 8 years, Occ: Education ]
Petitioner Nos. 2 and 3 are minor ]
represented by their mother ]
Jaya R/at as above ] ..Appellants

Versus

Shri Vijay @ Vijaykumar Shankar Wavikar ]
Age 40 years, Occ: Service, ]
R/at. C/o. DMC Loco Shed Diesel Eng. ]
Department, Chorpadi, Pune 1 ] ..Respondent

Mr. Mahesh Raut i/b. Mr. P. B. Shah for Appellant.

Mr. Rahul S. Kate for Respondent.

JUDGMENT FCA 47 OF 2004

CORAM : NARESH. H. PATIL & A. R. JOSHI, JJ.

DATED : 17TH JANUARY, 2013

JUDGMENT (Per : NARESH H. PATIL, J. )

1] Heard.

2] This appeal is directed against the judgment and order passed by Family Court No. 1, Pune dated 7.1.2004. The impugned judgment and order was passed by the Family Court No. 1, Pune on 7.1.2004 thereby deciding both the petitions. The first Petition A.No. 766/2002 was preferred by the present respondent / husband for divorce under section 10(1)(ix) of the Divorce Act, 1869 and the second Petition E. No. 220/2002 was preferred by the present appellants (wife and her two minor children) for grant of maintenance under Section 125 of Cr.P.C.

>The following order was passed disposing off both the
>said Petitions:
>
>” ORDER In PA No. 766/2002
>
>1) The marriage between petitioner -Shri Vijay alias
>Vijaykumar Shankar Wavikar and respondent Sau. Jaya
>Vijay Wavikar stands dissolved by decree of divorce on
>the ground of desertion u/s 10(1)(ix) of the Divorce
>Act 1869 with effect from the date of this order with
>parties left to bear their own costs.
>
>The respondent Shri Vijay alias Vijaykumar Shankar
>Wavikar do pay Rs.1000/- each per month to the
>petitioner no. 2, Miss. Snehal and petitioner Master
>Ashish from the date of this order and costs of
>Rs.700/- and to bear his own.”

3] The appellant no. 1 and the respondent got married on 17.05.1989 at Oldham Memorial Methodist Church, East, Pune -1. It was an arranged marriage. Both the appellant no. 1 and the respondent were in service and continue to be in service. The appellant no. 1 wife was working as postal clerk while the respondent husband was working as mechanic in Central Railway, posted at Pune. At the relevant time the wife was drawing salary of Rs.5,000/- per month and husband was drawing salary of Rs.8,000/-per month. Two children were born from this wedlock, viz. Snehal and Ashish. The grievance of the husband was that now and then wife used to go to maternal home. She neglected to perform her duties as a wife. She never bothered to take care of the family affairs and matters and eventually deserted him from 19.11.1997. It is contended that thereafter wife never bothered to either resume cohabitation with the husband nor showed any inclination to resume cohabitation with him.

4] The appellant wife filed reply to the said petition and controverted the allegations levelled against her. According to wife she was ill treated by her husband. She tolerated him for some time due to children. There was no improvement in the husband’s behaviour and character and therefore she had to leave the matrimonial home on 19.11.1997. At the same time it was contended that she was willing to go back to her husband if he undertakes to treat her properly.

5] During these proceedings wife claimed maintenance allowance of Rs.1,500/- each for her two children. Both parties have examined themselves and were cross-examined.

6] The learned counsel for the appellant submitted that it has come on record during the deposition of the wife that husband was addicted to gambling and used to be under influence of liquor. He was ill treating the appellant. Efforts made by the family members of the husband to pacify their strained relationship were futile. Though both the parties at some point of time expressed their desire to come together but unfortunately could not come together. The learned counsel for the appellant submitted that due to the behaviour of the husband and mother-in-law it was difficult for her to lead life. Counsel submitted that in the facts of the case and the evidence on record, the trial court committed error in allowing the petition.

7] The learned counsel appearing for the respondent supported the reasonings arrived at by the Family Court. It was submitted that on small issues and on account of day to day wear and tear of life the appellant left the house, deserted the husband and started residing with her parents at her parental home. The allegation that husband used to drink and under the influence of liquor assaulted, were denied. The allegation to the effect that husband was engaged in gambling was also denied. The learned counsel submits that the marital ties suffered severely and they are broken. Wife is residing from 19.11.1997 separately along with children. Since last 15 years there is absolutely no contact between the parties, neither they had shown any interest to carry on the relationship.

8] We have perused the record placed before us and considered the submissions advanced. We have gone through the reasonings adopted by the Family Court. It seems as a matter of fact that since last 15 years the parties are not residing together neither there are instances of their meeting on some occasions or any indication that they are willing and eager to stay together. Curious fact is that both at the relevant time were engaged in their respective services in Central Government. Probably both even at this stage must be engaged in the same services. But being in service would not allow the party to refuse to live together or discharge duties and obligations towards family and inmates of the house. In the deposition before the court the appellant no. 1 had stated that the behaviour of the mother of the husband was strange and troublesome. She was bed ridden and used to murmur. She was dependent even for performing her day to day affairs. She was habituated to chewing tobacco and spitting. This had caused embarrassment to the wife according to her deposition. Her grievance is that husband atleast ought to have taken efforts to bring her back but he did not make. One of the reasons put forth by the wife was that as the husband was seen under influence of liquor it was creating bad impact on the innocent minds of the children. Leaving house with children even on that count could not be a final solution to the problem. The children require care of father which they were deprived of. Just because the mother of the husband was bed ridden that would not be a ground for leaving the house. The Family Court after considering the nature of allegations and evidence on record reached appropriate conclusions, which in our view, are not perverse and erroneous. There is no merit in the appeal. The same stands dismissed.

(A. R. JOSHI, J.) (NARESH H. PATIL, J.)

Chandka

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******************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

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