KANAIYALAL AMBALAL THAKKAR Vs. JAISHREEBEN KANAIYALAL THAKKAR

JUDGEMENT

(1.) FEELING aggrieved and dissatisfied with the impugned judgment and decree dated 30.09.2013 passed by the learned Principal Judge, Family Court, Rajkot in Familty Suit No.9/2008 [Old HMP No.94/1995] by which the learned Judge has dismissed the said family suit preferred by the appellant herein original applicant for getting the divorce under Section 13(1A) of the Hindu Marriage Act, 1955 [hereinafter referred to as "Act"], the appellant herein original applicant has preferred the present First Appeal under Section 19 of the Family Courts Act.

(2.) THAT the appellant herein original applicant husband filed the HMP Suit No.99/1995 before the learned Senior Civil Judge, Rajkot for dissolution of the marriage/divorce under Section 13(1A)(ii) of the Act, which came to be transferred to Family Court, Rajkot, which was renumbered as Family Suit No.9/2008. It was the case on behalf of the appellant husband that the respondent wife is without any reasonable cause as deserted him and is residing separately since 1988. It was the case on behalf of the appellant that earlier the respondent wife filed the Hindu Marriage Petition No.42/1992 under Section 9 of the Act for restitution of conjugal rights which came to be decreed on the consent given by the appellant husband, however thereafter and as per the judgment and decree passed in HMP No.42/1992, the appellant husband made number of efforts in person and on telephone to call back the wife and to stay with him, however the respondent wife is not returning and more than one year has been passed after the decree for restitution of conjugal rights and therefore, it was requested to grant the decree for dissolution of the marriage between the parties under Section 13(1A) of the Act.

(3.) SHRI Amrish Pandya, learned advocate appearing on behalf of the appellant has vehemently submitted that the learned Judge has materially erred in dismissing the suit and not granting the decree for dissolution of marriage between the parties under Section 13(1A) of the Act. It is submitted that all efforts were /are made by the appellant to bring back the respondent wife, however the respondent wife has refused to return without any reasonable cause. It is submitted that infact in the HMP Suit filed by the respondent wife being HMP Suit No.42/1992, which was filed for restitution of conjugal rights, the appellant husband volunteered and agreed for restitution of conjugal rights and thereafter number of efforts have been made by the appellant husband for restitution of conjugal rights, however has failed and therefore, considering section 13(1A) of the Act, after a period of one year of the decree for restitution of conjugal rights, the appellant husband shall be entitled to the decree for dissolution of marriage. It is submitted that the learned Judge has not properly appreciated the evidence on record and thereby has materially erred in dismissing the suit and refusing to grant the decree for dissolution of marriage under Section 13(1A)(ii) of the Act.