Full Judgment Text
2017:BHC-AS:23005-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 230 OF 2015
Mrs. Nutan Shankar Moily
Age 45 years, Indian Inhabitant,
Occ. Professional, having her office
address at C/o. Sakhalkar's Leimare,
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Advocates, B112, 1 Floor, Urmila
Cooperative Housing Society,
Koldongari Road No.1, Andheri (East),
Mumbai – 400 069.
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And also at
C/o. Anand Bangera, 20/649,
Vartak Nagar, Thane (West),
Thane – 400 606.
Appellant
(Org. Respondent)
V/s.
Mr. Shankar Ramanna Moily
Aged about 52 years, Indian Inhabitant,
Occ. Service, having Permanent Address at
C/o. P. R. Moily, 8/213, Nandadeep, Roop
Nagar, Bandra (East), Mumbai – 400 051.
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Presently residing at :
6651 Maple Grove DR
Indiapolis, IN46250, U.S.A.
Respondent
(Org. Appellant)
• Mr.Vishal Kanade a/w. Mr.Sunil Karothe i/b. Mr.Swapnil A.
Waradkar for the Appellant.
• Mr.Jaydev Trivedi a/w. Ms.Bhupali Vaze for the Respondent.
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CORAM : SMT. V.K. TAHILRAMANI &
DR. SHALINI PHANSALKARJOSHI, J.J.
rd
DATE : 23 AUGUST, 2017.
JUDGMENT : (PER : DR. SHALINI PHANSALKARJOSHI, J. )
1] This appeal, preferred by Original Respondentwife takes
rd
an exception to the judgment and order dated 23 September, 2015
passed by Family Court No.3 Mumbai at Bandra, thereby dissolving
the marriage of Appellant and Respondent by decree of divorce under
Section 13(1A) (ii) of the Hindu Marriage Act, 1955 (hereinafter
referred to as “the Act”).
2] Brief facts of the appeal can be stated as follows;
nd
Appellant and Respondent were married on 22 August,
1996 at Powai, as per the rites and custom of Hindu Religion. After
the marriage, they cohabited together for some years in USA where
Respondent was and is serving since prior to their marriage. However,
some years after the marriage, due to differences of opinion and
incompatibility, Respondent had filed a petition for divorce bearing
No.747 of 2006 under Section 13(1)(ia) & (ib) of the Act on ground
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of cruelty and desertion. In the said petition, Appellant had preferred
counter claim for Restitution of conjugal rights under Section 9 of the
th
Act. By judgment and decree dated 15 September, 2009, the petition
for divorce filed by Respondenthusband came to be dismissed.
Whereas counter claim of Appellantwife for Restitution of conjugal
rights was allowed. As per the order passed therein, Respondent
husband was directed to join company of Appellantwife.
3] As per the case of the Respondent, after the passing of this
decree for Restitution of conjugal rights, he made genuine efforts of
convincing the Appellant for resuming cohabitation with him.
However all along she refused. He wrote letters to her from time to
time and requested her to set up a mechanism for preparing
documents like her Visa for her entry and stay in USA, where he is
residing since last more than 10 years which was since prior to their
marriage and also after the marriage. Appellant however, despite his
various efforts did not resume the cohabitation, though the decree for
Restitution of conjugal rights was in her favour. She did not show any
interest or inclination by seeking execution of the said decree, though
she filed execution proceedings for recovery of maintenance. Thus,
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ultimately being convinced that the Appellant is no more interested in
resuming cohabitation with him, Respondent filed the petition No.A
1010 of 2012 before the Family Court Mumbai at Bandra seeking
dissolution of marriage on ground of non resumption of cohabitation
for a period of more than one year, even after the passing of decree of
Restitution of conjugal rights.
4] This petition came to be resisted by the Appellant
contenting interalia that there is willful default on the part of
Respondent himself in non compliance of the decree for Restitution of
conjugal rights. It was submitted by her that the Respondent has
visited India four times after the decree was passed, but he has never
made any attempt to join her company or to resume cohabitation.
According to her, Respondent had advanced only false promises and
assurances, but all along he insisted on her to join cohabitation in
USA. According to her, her cohabitation with him at USA is not
possible and Respondent is fully knowing about the same. It was
submitted that, as per the order passed by the Court, Respondent was
directed to join her company, thereby implying that he has to resume
cohabitation with her in India and it was not for her to resume
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cohabitation with him at USA. On all these grounds, the Appellant
prayed for dismissal of the petition.
5] In support of his case, the Respondent examined himself
and his sister Jyoti to prove his efforts of resuming cohabitation. He
has also placed reliance on the letters written by him to the Appellant
from time to time. His sister Jyoti has also deposed about the efforts
made by Respondent and she herself to convince the Appellant to
resume the cohabitation.
6] As against it, the Appellant examined herself and relied
upon certain documentary evidence.
7] On appreciation of this evidence, the learned Family Court
was pleased to uphold the case of Respondent that he has made
genuine efforts of resuming cohabitation but there was no response
and total non cooperation on the part of the Appellant. The learned
Family Court held that since beginning, the Appellant was very much
aware that Respondent was residing at USA and she has to resume her
cohabitation at USA, therefore there is no question of her now
insisting that Respondent should resume cohabitation in India.
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Accordingly, the learned Family Court allowed the petition filed by
the Respondent and dissolved the marriage, by impugned judgment
and decree, on the ground of non resumption of cohabitation, under
Section 13(1A)(ii) of the Act.
8] While challenging this judgment and decree of the Family
Court, the submission of the learned counsel for the Appellant is that
the learned Family Court has proceeded on a totally wrong
presumption that it is for the wife to leave her paternal house and to
join her husband's company at his house. It is submitted that, the
Family Court has committed an error in observing that, wherever the
husband is residing, the wife has to cohabit with him and she cannot
insist or expect the husband to leave his job/carrier and to reside with
her at the place of her whims and desire. According to learned counsel
for the Appellant, just as it will be wrong on the part of the Appellant
wife to expect that her husband should leave his job and residence at
USA and come and cohabit with her in India; similarly, it would be
wrong to expect the Appellantwife to leave her residence and practice
in India and to resume cohabitation with Respondent at USA.
According to learned counsel for the Appellant, when the Family
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Court has while allowing the Appellant's petition for Restitution of
conjugal rights specifically directed the Petitionerhusband to join the
company of the Respondentwife, the Family Court should not have
held that as the Appellant is not ready to resume cohabitation in USA,
she has no desire and therefore, it was necessary to pass the decree of
dissolution of marriage. The sum and substance of the learned counsel
for the Appellant is that as the Family Court has proceeded on totally
wrong assumptions and presumptions, the impugned judgment and
decree of the Family Court needs to be quashed and set aside.
9] Per contra, learned counsel for the Respondent has
supported the said judgment and order by pointing out that there is
ample evidence produced on record by the Respondent and which has
remained mostly unchallenged, proving that the Respondent has
made genuine efforts to resume cohabitation with the Appellant but
her attitude remained totally noncooperative and non responsive.
The only reason offered by her for nonresumption of cohabitation is
that, she cannot be insisted to resume cohabitation at USA. It is
submitted that when the Appellant was very much aware since
beginning that Respondent is residing in USA and if at all she wanted
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to resume cohabitation, she had to go to USA, now she cannot
contend that she will not do so. If she says so, then it is clear that she
has no desire or interest in resuming cohabitation. Hence, according
to learned counsel for the Respondent, there was no alternative before
the Family Court but to dissolve the marriage. Hence, in his opinion,
no interference is warranted in the impugned judgment and decree of
the Family Court.
10] In the light of these rival submissions advanced by the
learned counsel for both the parties and on perusal of the evidence
and impugned judgment of the Family Court, we are of the considered
opinion that the judgment and decree passed by the Family Court
does not called for any interference. We record this finding for the
following reasons.
11] In the first place, in this case, the decree for Restitution of
conjugal rights was obtained by the Appellant by filing counter claim,
but admittedly she has not made any efforts to resume cohabitation. It
is pertinent to note that she had filed the proceedings for execution of
the order of maintenance, which was passed in earlier proceedings but
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she has not asked for the execution of the decree of Restitution of
conjugal rights. Thus, from her side, the Appellant has not made any
effort to resume cohabitation.
12] As against it, the evidence on record proves that she has
not even responded to the efforts made by the Respondent for
resumption of cohabitation. The evidence on record proves that the
Respondent has made several efforts of resuming the cohabitation.
The letters written by him to the Appellant on 25/12/2009 and
06/02/2010 produced at Exh.25, go to prove that he has tried to
convince her to resume cohabitation at USA. Further there is letter
written by him dated 30/04/2010, which is at Exh.27, proving that he
has called upon the Appellant to send the documents for completing
her Visa Process for her entry and stay in USA. The Appellant has
admitted the receipt of the said letter. She has replied the said letter
on 22/5/2010 vide Exh.45. In the said letter, the Respondent has
mentioned in clear terms that he was ready to comply with the decree
of Restitution of conjugal rights and she should therefore supply him
necessary documents for preparing her Visa. However, in her reply,
the Appellant has not specifically dealt with the Respondent's
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readiness and willingness to resume cohabitation. She even did not
express her desire to cohabit with the Respondent. Then there is e
mail dated 3/8/2010 (Exh.44) sent by Respondent to the Appellant,
again asking her to cooperate for resuming the process of
cohabitation. The Appellant has admitted the receipt of this email but
has not replied the same. The Appellant has also admitted the
Respondent's letter dated 20/3/2010 (Exh.29), wherein the
Respondent has disclosed intention of cohabiting with her in USA and
has requested her to contact him. But the Appellant has not replied
the said letter. Even in the notice Exh.41 issued by the Respondent to
the Appellant before filing of this petition, he has stated the efforts
made by him, proving his intention to resume cohabitation. However,
in her reply to the said notice Exh.42, the Appellant has not expressed
her intention or desire to cohabit with the Respondent.
13] In addition to these letters and the email sent by
Respondent requesting the Appellant to resume cohabitation, his oral
evidence goes to prove that in the month of April 2010 when he
visited India, he tried to approach and convince the Appellant for
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cohabitation. He has even visited her office on 20 April, 2010 for
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seeking her cohabitation. But there was no change in her attitude and
she was reluctant to talk about stay with him. There is no suggestion
in his cross examination that he has not made any such efforts at the
relevant time.
14] Further, there is also the evidence of Respondent's sister
Jyoti, who has also deposed about the efforts made by her to convince
the Appellant to resume cohabitation. She has also stated that in the
year 2010 she approached the Appellant several times and tried to
talk with her but she never responded. She has specifically stated
about visiting the Appellant's office in the month of JuneJuly 2011 to
convince the Appellant but it was of no use.
15] Appellant has admitted that she has not provided the
necessary documents to the Respondent for preparing Visa. She has
also admitted that though the Respondent has given her his mother's
mobile number, she did not contact his mother to complete the
formalities of her visiting to USA. Thus, there is absolutely no iota of
evidence on record to show that she has ever exhibited any interest or
willingness to join the Respondent for cohabitation. She has neither
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taken any steps on her own to resume cohabitation nor responded to
the various steps taken by the Respondent for resumption of
cohabitation.
16] The only excuse offered by the Appellant for not resuming
cohabitation is that she cannot be expected to join the Respondent at
USA. However, this excuse cannot be accepted for the simple reason
that, since beginning, even prior to his marriage with the Appellant,
the Respondent is residing in USA and accordingly after the marriage,
the Appellant has joined his company in USA. In written statement
cum counter claim filed by the Appellant to the petition for divorce
filed earlier, the Appellant has categorically admitted in paragraph
No.2(b) that, after the marriage she had joined the Respondent in
USA and she was very happy and comfortable during her stay in USA.
The Respondent was treating her with love, care and affection. He
provided her with all the basic necessities required for her and also
used to take her along with him to various functions, parties, movies
etc. It is also a matter of record that even when Appellant filed
counter claim for Restitution of conjugal rights, she was aware that
Respondent is residing at USA, as he is doing the job there. In the said
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petition, the address of Respondent was given as resident of USA. She
has sought maintenance from him claiming that he is serving in USA
and getting substantial salary. Therefore, it is not a case, as rightly
observed by the Family Court, that the Respondent has intentionally
left India after the decree of Restitution of conjugal rights was passed
and settled in USA in order to avoid the execution of such decree.
17] In view of this undisputed fact that Respondent is residing
in USA since last more than 10 years and even after the marriage, the
Appellant has cohabited with him at USA and at the time of her
counter claim for Restitution of conjugal rights also she was aware
about his residence in USA, then it necessarily follows that when the
Respondent has expressed desire and shown her willingness and
interest in resuming cohabitation, by filing counter claim for
restitution, she was aware that she will have to resume cohabitation
with Respondent in USA. There was absolutely no question of
Respondent coming to India and resuming cohabitation with her at
India. There was no such condition put up by her also in her counter
claim, nor there is any discussion or evidence led on that aspect in the
earlier petition for divorce in which counter claim for restitution was
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filed by the Appellant.
18] Therefore, in our considered opinion, the Family Court has
rightly held that the Appellant was since beginning knowing that if
she had desire to resume cohabitation then it was to be at USA.
Hence, now the contention advanced by learned counsel for the
Appellant, that if the Respondent cannot be expected to come to India
leaving his job and residence in USA, Appellant also cannot be
expected to leave her residence and job in India and to go to USA
cannot be accepted. She had married with the Respondent knowing
well that she has to cohabit him at USA and she has actively cohabited
with him in USA only. It was her counter claim for Restitution of
conjugal rights expressing desire to resume cohabitation, knowing
fully that the Respondent was very much residing and doing job in
USA and hence now she cannot be permitted to back track by saying
that she is not ready to comply with the Restitution of conjugal rights
as the Respondent is residing in USA. If she says so, then it has to be
inferred that she has no desire or interest in resuming cohabitation
and her counter claim for Restitution was merely to defeat the petition
for divorce filed by the Respondent.
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19] In such situation, as the resumption of cohabitation
between the parties has not taken place, even after the decree of
Restitution of conjugal rights was passed and that too, only on
account of non cooperation on the part of the Appellant, the learned
Family Court has rightly passed the decree of dissolution of marriage
on that ground.
20] Even if the contention of the Appellant is accepted that she
cannot be expected to leave her job and residence in India and to join
the Respondent in USA, it was necessary on her part to find out some
solution, by showing interest and giving response to the efforts made
by the Respondent. Both of them could have found out some amicable
solution to this problem but as she has never shown any interest or
desire to resume cohabitation and merely put up a lame excuse for not
doing so, on ground that she cannot be expected to go to USA, the
learned Family Court was perfectly justified in holding her responsible
for non resumption of cohabitation and therefore, granting the decree
of dissolution of marriage on that ground.
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21] The Appeal, therefore, holds no merits, hence stands
dismissed with no order as to costs.
(DR. SHALINI PHANSALKARJOSHI, J.) (SMT. V.K. TAHILRAMANI, J.)
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