Wife deserting husband since 1998 tries to deny him divorce even in 2015 !! Even though the husband is ready to pay 7 lakhs as one-time lump some settlement, the wife continues to refuse that and demand more and more money !!! The Hon Court Studies the records, understand that the wife has always been cruel to the husband, has also deleted the husband, and has filed a restitution case has an eye wash… The honourable court calls the wife’s actions an abuse of process of law and grants divorce I favour of the husband !!
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IN THE HIGH COURT OF GUJARAT
FIRST APPEAL NO. 974 of 2015
FIRST APPEAL NO. 975 of 2015
LALITABEN W/O MUKESHKUMAR SOLANKI….Appellant(s)
MUKESHKUMAR A SOLANKI….Defendant(s)
MR HB CHAMPAVAT, ADVOCATE for the Appellant(s) No. 1
MR BHUNESH C RUPERA, ADVOCATE for the Defendant(s) No. 1
MR MB SHEKHAWAT, ADVOCATE for the Defendant(s) No. 1
HONOURABLE MR.JUSTICE KS JHAVERI
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 09/07/2015
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. Both these appeals involve common questions on law and facts and hence, they are decided by this common order.
2. The facts in brief are that the appellantwife got married to the respondenthusband on 05.06.1995 at Ahmedabad as per the Hindu rituals. It is the case of appellantwife that after about two years of marriage, the respondenthusband and her inlaws harassed her mentally as well as physically and started to demand dowry from her and thereafter, on 15.02.1998, allegedly drove her out of the matrimonial home. The respondenthusband filed a suit u/s.13(1) of the Hindu Marriage Act before the District Court at Mahesana being No.133/2000. However, the same was withdrawn on the assurance given by the respondent that she would be called back at her matrimonial home. It is the case of the appellantwife that the said assurance was not fulfilled by the respondent.
3. The appellant, thereafter, filed an application u/s.125 Cr.PC seeking maintenance, which was allowed whereby, an amount of Rs.2500/ per month was fixed as maintenance. Subsequently, the appellant filed an application u/s.9 of the Act vide Family Suit No.974/2008 before the Family Court, Ahmedabad. The said suit was dismissed, vide order dated 07.04.2014.
4. The respondent filed a suit u/s.13(1) of the Act being Family Suit No.783/2009, which came to be allowed, vide order dated 07.04.2014. The appellantwife had filed a suit u/s.9 of the Act being Family Suit No.974/2008. However, the same was rejected, vide order dated 07.04.2014.
5. Being aggrieved by the judgment and decree passed in Family Suit No.783/2009 as also the order passed in Family Suit No.974/2014, the appellantwife has preferred the present appeals. In F.A. No.974/2015, challenge is made to the impugned order passed in Family Suit No.974/2008 dated 07.04.2014 whereas, in F.A. No.975/2015, challenge is made to the impugned judgment and decree passed in Family Suit No.783/2009 dated 07.04.2014.
6. We have heard learned counsel for both the sides and perused the documents on record. We have also gone through the paperbook supplied by learned counsel for the appellant.
7. Before we proceed with the matter, it is to be noted that on the last occasion, i.e. on 07.07.2015, the matter was adjourned at the joint request of the parties so as to see that the dispute may be resolved amicably by payment of lumpsum amount as permanent alimony to the appellant wife. Today, learned counsel for the respondenthusband stated that the respondent is ready to pay an amount of Rs.7.00 Lacs to the appellantwife towards permanent alimony. However, it was informed by learned counsel Mr. Champavat appearing on behalf of appellantewife that the appellant is not ready to settle the dispute by accepting any amount of permanent alimony.
8. It is a matter of fact that marriage between the parties is in the doldrums since 1998. Though several efforts were made at different times to resolve the dispute, but not yielded the desired result. Considering this background, the Court deemed it appropriate that the dispute could be put to an end by payment of lumpsum amount of permanent alimony. However, today, the stand taken by the appellant vindicates the respondent and speaks volumes about her conduct. In our opinion, this is nothing but, gross misuse and abuse of the process of Court. Now, we shall proceed to decide the matter on merits.
9. It transpires from the record that the appellantwife left her matrimonial home on 15.02.1998 and has been residing separately since then at her parental house. From the crossexamination of the appellantwife, it is established that when the respondenthusband filed the suit for divorce before the District Court at Mahesana in 2000, the appellant-wife immediately preferred an application u/s.125 Cr.PC. The said application was granted and the appellant wife was paid maintenance amount regularly. Thereafter, in the year 2008, viz. after residing separately for ten years, the appellantwife preferred an application u/s.9 of the Act. Thus, it is an established fact that after residing separately for ten years, the appellantwife filed the application u/s.9 of the Act for restitution of conjugal rights. Before that, the appellantwife had made no such attempts for conciliation. The appellantwife has not given any ground, much less any satisfactory ground, behind her decision to desert the respondenthusband two years after their marriage and to live separately since then. Under these circumstances, the Court below was justified in passing the decree u/s.13(1) of the Act.
10. Before the Court below, the respondent-husband had produced several documents to show that he was meted out cruel treatment by the appellantwife. The documents at Exhibits 30 to 36 are all such documents, which were admitted by the appellantwife before the Court below. As discussed hereinabove, the factum of desertion by the appellantwife was established from her crossexamination itself. The documents at Exhibits – 30 to 36 are the letters written by the father of respondenthusband to the father of appellantwife, the complaint lodged before Danilimda Police Station by the father of respondenthusband, the letter written by the father of appellantwife to the leader of their community, the suit bearing Family Suit No.133/2000 filed by the respondenthusband u/s.13(1) of the Act before the District Court at Mahesana along with the withdrawal purshis and the copy of the order passed in application filed by the appellantwife u/s.125 Cr.PC. The above documents prove the conduct of appellantwife and her behaviour with the respondenthusband.
11. In view of the above, we are of the considered opinion that the Court below has not committed any error in passing the decree u/s.13(1) of the Act in favour of the respondenthusband and in rejecting the application u/s.9 of the Act filed by the appellantwife. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below and hence, find no reasons to entertain these appeals.
12. For the foregoing reasons, both the appeals are dismissed. At this stage, we would like to observe that if the appellantwife is desirous to accept the lumpsum amount of Rs.7.00 Lacs as permanent alimony, which the respondent husband has offered to pay today, she shall be at liberty to do so, by writing a letter to the respondenthusband to that effect, in which case, the respondenthusband shall make such payment to the appellantwife, by "Accounts Payee" cheque, within a period of three months from the date of receipt of such letter from the appellant.
(G.B.SHAH, J.) Pravin