CHIMANLAL SAJANBHAI BATHWAR Vs. AMRIBEN

JUDGEMENT

(1.) The present appeal is preferred under Sec. 19 of the Family's Court Act read with Sec. 96 of the Civil Procedure Code against the judgment and order dtd. 1/7/2017 in Family Suit No.540 of 2015 passed by the Family Court No.2, Ahmedabad. The original proceedings were in the form of an application under Sec. 13(1) of the Hindu Marriage Act seeking a decree of divorce on the ground of cruelty and desertion by the appellant-husband which came to be rejected by the impugned judgment and order. Against the aforesaid rejection of the application preferred by the husband, present appeal is preferred.

(2.) Learned advocate for the appellant has at the outset submitted that both the husband and wife are now senior citizen having crossed the age of 62 years plus and having separated since last 38 years. He also submitted that out of the wedlock, one son is borne out who also is now 36 years of age and residing with respondent-wife and he has also started his own family consisting of his own wife and two girl child who are presently college and school going.

(3.) As against this, learned advocate for the respondent opposing the grant of appeal submitted that the Family Court has rightly not believed that the appellant was able to make out the ground of cruelty on the basis of Tuberculosis suffered by the wife before the marriage and not disclosed the same to her husband or any other family members. In this regard, he has referred to the evidence of the treating doctor, who was examined vide Exh.104, whose deposition would establish that the respondent was operated on 20/2/1989 and that the disease of Tuberculosis was six months old prior to the operation, whereas the marriage was solemnized on 3/6/1986. Therefore, such a ground was rightly discarded.