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Shailendra Madhukar Bhalerao vs Suruchi Shailendra Bhalerao on 26 November, 2018

sg fca215-08.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO.215 OF 2008

Shri. Shailendra Madhukar Bhalerao .. Appellant
(Org. Petitioner)
V/s.
Sou. Suruchi Shailendra Bhalerao .. Respondent
(Org. Respondent)
….
Mr. Prashant Bhavake, for the Appellant.

Mr. Y.G. Thorat, i/b. A.B. Tajane, for the Respondent.
….
CORAM: A.A. SAYED
S.C. GUPTE, JJ.

RESERVED ON : 6 SEPTEMBER, 2018.

PRONOUNCED ON : 26 NOVEMBER, 2018.

JUDGMENT:

(PER S.C. GUPTE, J.)

. This family Court appeal challenges a dismissal order passed
by the Family Court at Pune on a divorce petiton filed by the Appellant
husband on the ground of desertion under Section 13(1)(ib) of the Hindu
Marriage Act.

2. The facts of the Appellant’s case may be briefly stated as
follows:

The Appellant and the Respondent were married on 20

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December 1994. They have a son by the name of ‘Shardul’. (The son,
who was a minor on the date of the petition as well as on the date of the
impugned order, is now a major, aged 23 years.) The Respondent left the
matrimonial home and the parties have been living separately since
February 1998. In 1999, the Appellant filed a divorce petition on the
ground of cruelty. The petition was dismissed by the Family Court on 25
August 2000. The parties, however, continued to live separately ever
since their original separation in February 1998. They have had no
relations ever since. On 31 May 2008, when the Respondent preformed
the thread ceremony of their son, Shardul, whilst living at her parental
home, the Appellant and his immediate family members such as parents,
brother, etc. were not invited. The only communication they had was
through a few phone calls. This state of affairs continued till the filing of
the petition, i.e. till 20 July, 2006. (It continues till date, i.e. till the date
of this order.) On these facts, it is the submission of the Appellant that
the Respondent has deserted him; the statutory period of separation has
passed long by; and divorce ought to be granted.

3. The parties were sent to a marriage counsellor and even the
Family Court explored the possibility of a mutual settlement, which did
not come about. The trial thereafter commenced, when the parties led
evidence before the Court. The Family Court, after hearing the parties,
dismissed the petition on the ground that though the parties were
admittedly living apart since the last over ten years, the separation was at
the instance of the Appellant husband; the Respondent wife’s evidence in
this behalf was practically unchallenged or unrebutted.

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4. Relying on the decisions of our Court in the cases of Jaya
Vijay Wavikar vs. Vijay @ Vijaykumar Shankar Wavikar 1 and X
husband vs. Y wife2, learned Counsel for the Appellant submits that there
has been effective desertion on the part of the Respondent wife; it is the
wife who left the matrimonial home and for the last over twenty years
(ten years before the impugned order and ten years thereafter, i.e. during
the pendency of this appeal), there has been no attempt on her part of
resuming cohabitation. Learned Counsel for the Respondent counters this
by submitting that the wife’s oral evidence that the husband had asked her
to leave the matrimonial house was unchallenged in the cross-
examination and hence, it has been proved as a matter of fact that the
husband was responsible for the couple’s separation.

5. As this Court explained in X husband (supra), the essential
requisites of desertion have long been settled by the Supreme Court in
Bipinchandra Jaisinghbhai Shah vs. Prabhavati 3 by bringing out
essential conditions in a case of desertion. Along with the factum of
separation, an intention must be shown on the part of the deserting
spouse to bring cohabitation permanently to an end (animus deserendi).
Secondly, desertion is a matter of inference to be drawn from the facts
and circumstances of each case. Thirdly, the offence of desertion
commences when the fact of separation and the animus deserendi co-exist.
They, however, need not commence at the same time. It may be that the
de facto separation may have commenced without the necessary animus,
but at a later date, if there is animus, from that moment onwards they co-
exist and if they so continue for the requisite length of time, the
1 2013 (3) Mh.L.J. 886
2 2014(4) Bom.C.R. 168
3 A.I.R. 1957 S.C. 176

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matrimonial offence of desertion is complete and divorce may follow.

6. In X husband (supra), the facts before this Court were that
the deserting spouse had physically stayed away from the matrimonial
home; there was absence of consent for such stay from the deserted
spouse; there was failure to substantiate any reason for such separate
stay; and there was a clear omission to demonstrate readiness and
willingness to discharge the continuing obligation to return to the
matrimonial home. These circumstances, taken together, were sufficient,
according to this Court, to draw a conclusion of existence of animus
deserendi. The Court was of the view that once such separation with
animus was established, there was no obligation on the part of the
deserted spouse to actually take steps to effect reconciliation or bring the
deserting spouse back to the matrimonial home.

7. In the light of this law, let us test the facts of the present case.
The Respondent wife evidently was living in the matrimonial home on 15
February 1998. On that day, she left the matrimonial home. Why she left
is a matter of debate, both parties having their own different versions of
the same. It is the case of the Appellant that on that day, the Respondent
started quarreling without any reason and left the house with the parties’
young son, Shardul, asking the Appellant to make his face dark and never
returned thereafter, and, on the other hand, made his life miserable by
visiting his office on some occasions and insulting him. On the other
hand, the Respondent wife’s case is that on that day (i.e. 15 February
1998), the Appellant asked her to leave the house and she left at his
instance, and that she was always ready to cohabit with him. These are

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words against words. Though it is possible to believe the wife, in the
light, however, of what actually followed and has been the continuous
state of affairs for the last many years, twenty long years at the current
count, this initial separation and the identity of the spouse responsible for
it hardly matters. The parties have stayed separately for each day of the
last twenty years. There is nothing concrete to suggest that the wife made
any single attempt to recommence cohabitation or even harboured any
intention to do so. There is at least no outwardly sign to demonstrate
that. There is no proceeding filed by the Respondent wife for restitution
of conjugal rights. The parties have gone about living their separate lives
all these years and the only communication, if ever, they have had during
this period was over phone on a few occasions before the filing of the
present petition, i.e. more than twelve years back. In the premises, can it
reasonably be said as at this date (or, for that matter, even at the date of
the impugned order) that there is (or had been) actually absence of an
intention on the part of the Respondent wife to bring cohabitation
permanently to an end or does this conduct and state of affairs suggest
the contrary, namely, her intention to bring cohabitation permanently to
an end. We are sure any reasonable person duly instructed in law would
return the latter verdict rather than the former.

8. The Family Court appears to have laid much emphasis on the
fact that the Respondent was not effectively cross-examined on her oral
evidence that she was asked by the Appellant to leave the house. No
doubt this is by itself a possible conclusion and in ordinary course this
Court would not have interfered with that conclusion. But then the
Family Court seems to have lost sight of the fact that the wife’s conduct

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thereafter suggests that there was absolutely no intention on her part to
resume cohabitation at any time thereafter. A reasonable conclusion to
draw was that there was animus deserendi on her part at least with
reference to this subsequent period. Animus deserendi or intention to
bring cohabitation permanently to an end is nothing but the opposite of
intention to resume cohabitation. If there is no intention at all to resume
cohabitation for a reasonably long period, there could be said to be
intention to bring cohabitation on a end. How much long a reasonably
long period would be, as the Supreme Court said in Bipinchandra
Jaisinghbhai Shah (supra), is a matter of inference to be drawn from the
facts and circumstances of each case. But surely twenty years is in any
event a reasonably long period. If there is no attempt on the part of the
deserting spouse to resume cohabitation for twenty years after the initial
seperation, even if one were to grant that the original separation did not
have the element of animus deserendi, there could be said to be presence
of such animus afterwards. No doubt it is difficult to pinpoint any
particular moment from when such animus can be said to have
commenced and co-existed with the factum of separation. But then in this
case it can be certainly said to have commenced since long before the
statutory period of two years.

9. So far as the deserted spouse, namely, the Appellant, is
concerned, one of course cannot say that there was absence of consent on
his part for the separation which is one of the conditions to be shown for
the deserted spouse, though there is nothing to suggest that there was any
conduct on his part giving reasonable cause to the Respondent to form the
requisite animus deserendi at any time. But simply for that one element,

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there is no reasonable basis for perpetuating the matrimony which has
wholly and hopelessly lost its raison d’etre. There has been such
inordinately long period of separation, where the initial cause of
separation can now be said to be hardly relevant, that the marriage
between the parties can be said to be nothing but a fiction. There is
practically no hope for any revival or survival. The matrimonial bond
exists, if at all, only in form and not one bit in substance. One would do
well to recall here the following words of the Supreme Court in Naveen
Kohli vs. Neelu Kohli4 :

“74. We have been principally impressed by the consideration that
once the marriage has broken down beyond repair, it would be
unrealistic for the law not to take notice of that fact, and it would be
harmful to society and injurious to the interests of the parties.
Where there has been a long period of continuous separation, it may
fairly be surmised that the matrimonial bond is beyond repair. The
marriage becomes a fiction, though supported by a legal tie. By
refusing to sever that tie the law in such cases does not serve the
sanctity of marriage; on the contrary, it shows scant regard for the
feelings and emotions of the parties.

75. Public interest demands not only that the married status
should, as far as possible, as long as possible, and whenever possible,
be maintained, but where a marriage has been wrecked beyond the
hope of salvage, public interest lies in the recognition of that fact.

76. Since there is no acceptable way in which a spouse can be
compelled to resume life with the consort, nothing is gained by trying
to keep the parties tied forever to a marriage that in fact has ceased
to exist.”

No doubt these eloquent remarks were made in the context of
the Court’s recommendation to the legislature to consider the ground of

4 (2006) 4 S.C.C. 558

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irrevocable breakdown of marriage as an additional ground of divorce.

Yet their importance as a guiding spirit even in a case of desertion such as
this cannot be lost sight of altogether. The marriage between the parties
here took place in 1994. In 1998, within 3 years of their only child’s birth,
the couple separated. Both parties have lived separately ever since. The
only contact they have had so far was through a few phone calls made
before 2006. We are today in 2018; twenty years have elapsed since their
separation during which there was no single attempt to resume
cohabitation. Their only son is now 23 years and has lived apart from his
father for over twenty years. Is there any sanctity or, for that matter, even
semblance of a purpose left in continuing this legal tie? Is there any stake
of either party or, for that matter, of the society in preserving this broken
marriage? To our mind the answer seems to be clear. It would be unjust
not to sever the marital tie in the facts of the case. Justice, consistent with
good conscience, demands that the marriage be dissolved.

10. In the premises, the impugned order of the Family Court is
quashed and set aside and the petiton is allowed by granting a decree of
divorce on the ground of separation. There shall, however, in the facts of
the case, be no order as to costs.

(S.C. GUPTE,J.) (A.A. SAYED,J.)

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