KANCHAN AMAR ASRANI Vs. AMAR VISHINDAS ASRANI

JUDGEMENT

(1.) HEARD both the learned Counsel at length viz. Mr. Makhija for the appellate-wife and Mr. A. K Abhyankar for the respondent-husband.

(2.) THIS is an appeal by the wife against the judgment and decree dated 15th October, 1993 passed by the Family Court, Bombay, in M. J. Petition No. 597 of 1986. By the said Decree, the husbands petition for divorce on the ground of cruelty and desertion by the wife has been allowed. Consequently, the marriage has been dissolved by a decree for divorce. Admittedly, the only child-son-Vishal is all along with the respondent-father since 15th July, 1983. The wife has been held entitled to the maintenance of Rs. 700/- per month from the date of the passing of the order. No order for return of ornaments was made since there was no specific claim in the form of a counter-claim nor was any Court fees paid therefor. It is this judgment which is challenged before us in appeal. After the matter was heard initially, we had suggested to the counsel to explore the possibility of a settlement and hence the matter was adjourned more than once. However, the learned Counsel have expressed their inability to arrive at any conciliation. Unfortunately, the parties are living separate from each other since 14th July, 1983. Under the circumstances, we are left with no alternative but to decide the matter on the basis of the evidence on record.

(3.) A few facts necessary for the disposal of the appeal may be stated as under : The spouses were married on 8th December, 1978 at Bombay according to Hindu Vedic Rites. A son named Vishal was born on 18th April, 1980. In his petition filed on 9th June, 1986, the husband-Amar has alleged that the appellant-wife was of a quarrelsome nature and he referred to the conduct of the wife which, according to him, amounts to cruelty in matrimonial law. The first of such incident was in June, 1980 when the wife is alleged to have left the matrimonial home which is at Khar, Bombay and gone to her parents house which is at Chembur, Bombay. However, she came back after 2-3 days and stayed in the matrimonial home. Then it is alleged that there was a quarrel in January, 1981 and after this, in March 1981, as a result of a dispute over the wife breaking her fast there was a quarrel which resulted in the alleged attempt by the wife to swallow a diamond from her ear-ring after which she went to her parents at Chembur. Admittedly, she returned after two weeks and stayed in the matrimonial home. The pleadings and the evidence is clear on one point that after the March, 1981 incident till 14th July, 1983 the spouses lived happily without any signs of strained relationship. However, the husband alleges that on 14th July, 1983, the wife deserted the matrimonial home and again went back to her parents house at Chembur. This, according to the husband, constitutes desertion in matrimonial law and this was accompanied by the necessary factum and animus deserendi on the part of the appellant-wife.