MEENA ALIAS MOTA Vs. LACHMAN UTAMCHAND KIRPALANI

JUDGEMENT

(1.) In Matrimonial Petition No. 2129 of 1956 of the file of the Bombay City Civil the learned Trial Judge passed a decree in favour of the petitioner for judicial separation. Against that decree this appeal has been preferred.

(2.) The petitioner and the opponent were married according to Hindu rites on 10th November 1946 at Hyderabad (Sind). At the time of his marriage, the petitioner was residing as a member of a joint Hindu family with his parents, brothers and sisters. After the marriage the opponent commenced living with petitioner. On 19th July 1947, the opponent gave birth to a male child who was named Ashok. In October 1947 the parties, on account of the Partition of India, migrated to Bombay. As they were unable to obtain suitable accommodation in Bombay, the petitioner took his mother, his sisters and one of his brothers as also the opponent and the child Ashok to Ceylon and left them in the care of one Narain - his maternal uncle. The petitioner and his mother stayed at Colombo for some time an thereafter returned to Bombay. The opponent with her child Ashok, however, continued to stay at Colombo. On 17th January 1948, the pponent left Colombo with her son Ashok in company of one Khubchand - a cousin of hers - and arrived on 21st of January 1948 at Lonavala, where her mother was residing. Thereafter about the month of April 1948 the petitioner and his moher went to Lonavala and brought the opponent from Lonavala to Bombay. Sometime in the month of September 1948, the opponent came to Bombay and lived with the petitioner for about three months, but in the month of December 1948, the opponent again left for Poona to live with her father. At tat time, it is undisputed, the opponent went to Poona with the consent of the petitioner. Sometime in the month of February 1954. During this interval, it is undisputed that opponent visited her parents at Poona occasionally, but on the frequecy of these there is dispute between the parties. On 26th February 1954, the opponent left the Matrimonial home and went to Poona and continued to reside with her prents till 7th July 1954. On the 7th July 1954, without informing the petitioner, the opponent left for Hongkong where her father was conducting his business and till sometime in the month of April 1956 she continued to live at different places such as Hongkong, Singapore, Manila and Djakarta. On the 8th April 1956, the opponent returned to Bombay and after some time she left for Kashmir. No attempt was made on either side after the opponent returned to Bombay, to make a reapprochement and the opponent even did not try to meet her minor son Ashok who was then about nine years old and living with the petitioner. Thereafter on 20th September 1956, the petitioner filed a petition in the City Civil Court at Bombay for judicial separation alleging that the opponent had deserted him for a continuous period of not less than two years immediately before the presentation of the petition, that the desertion was without reasonable cause and without the consent and against the wish of the petitioner and that he - the petitioner - was accordingly entitled to a decree for judicial separation.

(3.) The petitioner's claim was resisted by the opponent. She contended that she had left the matrimonial home on account of harassment from her parents-in-law and also on account of the conduct of the petitioner, that after going to Poona she accompanied her father to Hongkong, but she had at all material times a desire to return to the matrimonial home which she could not put into effect on account of her ill-health. She stated that after she returned to India the petitioner had shown "gross and complete indifference" to her and that was why she did not go to reside with him and that the rupture between her and the petitioner was on account of the latter's refusal to live with her. She also stated that during the time she was out of India the petitioner had made "undignified allegations" against her in the correspondence stating that she was living "a life of guilt and degradation." She submitted that in view of the conduct of the petitioner and her intention evidenced by her conduct at all material times to return to the matrimonial home and live with the petitioner, a decree for judicial separation could not be passed against her.