Second Appeal No. 192 of 2016 and Civil Application No. 7646 of 2016 in Second Appeal No. 192 of 2016. Case: Alpaben Hiteshbhai Joshi Vs Hiteshbhai Prahladbhai Joshi. Gujarat High Court

Case Number:Second Appeal No. 192 of 2016 and Civil Application No. 7646 of 2016 in Second Appeal No. 192 of 2016
Party Name:Alpaben Hiteshbhai Joshi Vs Hiteshbhai Prahladbhai Joshi
Counsel:For Appellant: Kalpesh N. Shastri, Advocate and For Respondents: Sandeep R. Limbani, Advocate
Judges:Rajesh H. Shukla, J.
Issue:Code of Civil Procedure, 1908 (CPC) - Section 100; Hindu Marriage Act, 1955 - Section 9; Indian Evidence Act, 1872 - Section 114
Judgement Date:March 27, 2017
Court:Gujarat High Court
 
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Judgment:

Rajesh H. Shukla, J.

  1. The present Second Appeal is filed by the Appellant being aggrieved with the impugned judgment and order in Regular Civil Appeal No. 19 of 2015 by the learned Additional District Judge, Amreli dated 4.7.2016 confirming the judgment and order in Hindu Marriage Petition No. 11 of 2013 by the learned Additional Senior Civil Judge, Amreli dated 18.6.2015 posing the substantial questions of law as follows:

    "(i) Whether the courts below have committed error in not considering that the appellant had not voluntarily left the marital home but the respondent has deserted the appellant without any reason?

    (ii) Whether the courts below have erred in not considering the aspect that merely on not filing the complaint, cannot give rise to a ground of presumption of not having torturous behaviour of the respondent?

    (iii) Whether both the courts below have committed error in passing the decree u/s. 9 of the Hindu Marriage Act though there are positive and specific assertions of cruelty and misbehaviour of the respondent?"

  2. The background of the facts briefly summarized is that the Hindu Marriage Petition No. 11 of 2013 came to be filed by the Respondent husband under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act") for restitution of conjugal rights and that after the marriage, the Appellant wife deserted without sufficient cause. It also submitted that the husband agreed for living separately and he was separated from the family. The letters by the husband have not been placed on record by the Appellant wife. The compromise was also arrived at and they started living separately in a rented house. The Appellant/Original Respondent in HMP 11/2013 - wife is educated having Sanad to practice as an Advocate. She was also having a job as a teacher in school for which the Petitioner Husband would leave her at the school. When she was pregnant, the husband used to take care as stated by her. Thereafter, when she was at the parental house, the husband - Respondent herein by letter suggested to take her back, but she was not willing and as the separation remained, the husband filed the Petition under Section 9 of the Act for restitution of conjugal rights.

  3. The court below on appreciation of material and evidence granted the decree of the restitution of conjugal rights appreciating the aspect of matrimonial law that once the spouse is entitled to the society and comfort of the other spouse and where either spouse has abandoned or withdrawn from the society...

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