JAYASHREE VINOD BILTHARE Vs. VINOD BHAGWANDAS

JUDGEMENT

(1.) THIS Second Appeal is filed by the wife challenging the judgment and decree passed by the Additional District Judge, Thane in Civil Appeal No.117/1990, confirming the judgment and decree passed by the Learned Joint Civil Judge, Senior Division, Thane in Marriage Petition No. 94/86.

(2.) THE facts relevant for decision of this appeal are that the appellant and respondent were married somewhere on 12.2.1981 as per the Hindu rites and rituals and led married life for about 9 months. The respondent husband had filed Marriage Petition No.94/86 before the learned Joint Civil Judge, (S.D.), Thane for dissolution of marriage under section 13(1-A)(ii) of the Hindu Marriage Act, 1955, (hereinafter referred to as the "said Act" for the sake of brevity). As stated, by the husband, the wife, left the matrimonial house without his consent and on her own accord, somewhere in the month of July/August, 1983. The respondent, has also stated that while leaving the matrimonial house, the wife took alongwith her minor son Ameet. The respondent has further stated in the said petition that despite his persuasion, the wife did not return for cohabitation. Ultimately wife was served with the notice through advocate and copy of the said notice was also sent by Under Certificate of Posting on 19.9.1983, by the Advocate of husband-respondent. The husband-respondent has also stated in the said petition that he had sent an amount of Rs.50/- by money order so as to enable the wife to have medical treatment and to meet the expenses of medicines to his ailing son Amit; however, she had refused the money order. The respondent-husband has also stated in the petition that ultimately he filed Marriage Petition bearing No.5/1984 in the Court of learned Civil Judge, (S.D.), Thane under section 9 of the said Act. According to the respondent-husband the learned Civil Judge, (S.D.), Thane was pleased to pass a decree in Marriage Petition No.5/84 in his favour which is ex-parte decree as the appellant remained absent. The respondent-husband had issued a notice to his wife through this advocate by R.P.A.D. and also under Certificate of Posting dated 14.11.1984 informing the fact of decree of restitution of conjugal rights against her. According to the husband, the registered notice was refused by her, however, the envelope containing the notice sent by Under Certificate of Posting was not received back by him. Although the notice was received by the wife the did not turn to her husband for cohabitation, the husband. therefore, stated in the petition that the wife is not ready and willing to reside with him and has deserted the husband, without any just and sufficient reasons as well as despite the decree of restitution of conjugal rights against her.

(3.) THE learned Civil Judge (S.D.) considering the plea of the parties had framed three issues. In those issues, the issue No.2 is regarding passing of decree for restitution of conjugal rights and non cohabitation and so far as the maintenance is concerned the issue No.3 was framed by the Trial Court as to whether the appellant-wife is entitled to get maintenance for herself and her son Amit. The learned Civil Judge (S.D.), Thane after recording the evidence was pleased to allow the said Marriage Petition No.94/86 by the judgment and decree dated 30.11.89 and the marriage between the parties came to be dissolved and so far as the orders of maintenance is concerned the learned Trial Court granted an amount of Rs.200/- per month towards the maintenance of minor son from the date of the order. The appellant wife by filing Civil Appeal No. 117/90 in the Court of the learned Additional District Judge, Thane, challenged the judgment and decree passed by the Civil Judge, (S.D.) Thane in Marriage Petition No.94/86. The learned Additional District Judge, Thane after hearing of the parties, dismissed the said appeal by his judgment dated 9.7.1991. It is this judgment and decree which is assailed in this Second Appeal by the appellant-wife.