MUKESHKUMAR VISHNUPRASAD BAROT Vs. NITABEN W/O MUKESHBHAI VISHNUPRASAD BAROT AND D/O HASMUKHLAL BAROT

JUDGEMENT

(1.) Feeling aggrieved and dissatisfied with the impugned judgment and decree passed by the learned Family Court, Surat in HMP No.183/2013 by which the learned Judge had dismissed the said petition filed by the appellant herein - original petitioner and has refused to grant the decree of divorce under Section 13(1)(i -b) of the Hindu Marriage Act, the appellant herein -original petitioner -husband has preferred the present First Appeal.

(2.) The appellant herein -original petitioner had filed the aforesaid Hindu Marriage Petition in the Family Court, Surat for decree of divorce under Section 13(1)(i -b) of the Hindu Marriage Act on the ground of desertion. It was the case on behalf of the appellant that since 1991 and thereafter both the husband and wife are residing separately and that the respondent -wife has deserted him and there is no relationship as of husband and wife and only marriage is in existence, and therefore, it is requested to pass the decree of divorce.

(3.) The aforesaid petition was vehemently opposed by the respondent -wife. It was the case on behalf of the respondent -wife that in fact the appellant -husband has deserted her. It was the case on behalf of the respondent -wife that in the year 1996 appellant -original petitioner had re - married with one Sonalben and she had started residing with the appellant as his second wife, and therefore, the respondent -wife was constrained to go to Surat and stay with her parents alongwith her children. It was also the case on behalf of the respondent -wife that the respondent -wife is maintaining her two children and even the appellant -original petitioner has not performed his duty as a father towards his children also. It was also the case on behalf of the respondent - wife that earlier in the year 1991 and thereafter in the year 1997 the appellant -husband filed the Hindu Marriage Petition for the same relief, which came to be dismissed. It was submitted that therefore even the respondent -wife filed HMP No.762/2008 before the Family Court under Section 9 of the Act for restitution of conjugal rights and despite the above, the appellant -husband did not take her back from her parents house. It was the case on behalf of the respondent -wife that in fact as the appellant -husband had re -married and / or is staying with another lady, and therefore, the respondent -wife was compelled to stay at her parental house, and therefore, the appellant -husband cannot be permitted to take the benefit of his own wrong.