Allowed

Nitin Vishwas Gadgil v. Nishigandha Nitin Gadgil

Bombay HC13 Jun 2007FCA/10/2004

Case brief

AI extract

What is this about?

The High Court allowed the husband's appeal against the Family Court's dismissal of his divorce petition. The Court held that the wife's abandonment of the husband and their minor child, coupled with her being untraceable for over seven years despite search efforts, justified granting divorce on the ground of desertion.

What did the court decide?

The divorce petition was allowed. The marriage is declared dissolved by a decree of divorce. Decree to be drawn up accordingly.

IN THE HIGH COURT OF JUDICATU APPELLATE	RE	AT BO	MBAY SIDE
FAMILY COURT APPEALNO.10		OF	2004
SHRI NITIN VISHWAS GADGIL ... VS.	APPELL	ANT.
MRS. NISHIGANDHA N. GADGIL ...	RESPON	DENT.
MR.SAGAR JOSHI I/B. S.M.OKA FOR	THE	APPEL	LANT.
NONE FOR THE		RESPON	DENT.
CORAM : J.N.PATEL & AMJAD	A.	SAYED,	JJ.
DATE : June	13,		2007.
P.C.
1. Heard the learned Counsel for the appellant. None for the Respondent.
2. The appellant has preferred this appeal against
the Judgment and Order, dated 21st May,	2003	passed	by
the Family Court No.2, Pune in Petition A- No.101 of 2002. 3. The appellant -husband filed the petition under

IN
THE
HIGH
COURT
OF
JUDICATU
APPELLATE

AT
BO

MBAY
SIDE

FAMILY
COURT
APPEALNO.10

2004

SHRI NITIN VISHWAS GADGIL
...
VS.

APPELL

ANT.

MRS. NISHIGANDHA N. GADGIL
...

RESPON

DENT.

MR.SAGAR
JOSHI
I/B.
S.M.OKA
FOR

THE

APPEL

LANT.

NONE
FOR
THE

RESPON

DENT.

CORAM
:
J.N.PATEL
&
AMJAD

SAYED,

JJ.

DATE
:
June

13,

2007.

P.C.

1.
Heard the learned Counsel for the appellant.
None for the Respondent.

2.
The appellant has preferred this appeal against

the
Judgment
and
Order,
dated
21st
May,

2003

passed

the Family Court No.2, Pune in Petition A- No.101 of
2002.
3.
The appellant -husband filed the petition under

4.	It i	s not disputed that the parties	got married
at	Sangli on	14.5.1996 and last	resided at Pune.		The
appellant-h	usband w	as required to	visit Tokyo,	Japan,	a
foreign	country	for business	purposes a	nd	the
respondent	was	residing with	her parents	and	was
serving	there.	However, the	appellant -husband		could
not	take her	to Tokyo, Japan.	The Respondent	was,	at
the	relevant	time, pregnant and	she delivered a	son	on
17.2.1998	at	Sangli, named Ni	nad, who is at		present
staying	with	the appellant-husband.	It is the	cas	e of
the	appellant-hus	band that while	he was req	uired	to
visit	foreign	countries due	to exigencies	of	his
service,	on his	return to India,	he used to	reside	with
his	family	and on one occa	sion, he went to		Australia
and	taken his	wife and son	alongwith him and	staye	d in
Sydney	from	13.9.99 to	23.9.1999 and,	th	ereafter,
returned	to India	and stayed at	Pune up to 3.10	.99.	He
again	went	to Australia and	resided there fr	om	4.10.99

It i

s not disputed that the parties

got married

Sangli
on

14.5.1996
and
last

resided
at
Pune.

The

appellant-h

usband
w

as
required
to

visit
Tokyo,

Japan,

foreign

country

for
business

purposes
a

the

respondent

was

residing
with

her
parents

and

was

serving

there.

However,
the

appellant
-husband

could

not

take
her

to
Tokyo,
Japan.

The
Respondent

was,

the

relevant

time,
pregnant
and

she
delivered
a

son

17.2.1998

Sangli,
named
Ni

nad,
who
is
at

present

staying

with

the
appellant-husband.

It
is
the

cas

e
of

the

appellant-hus

band
that
while

he
was
req

uired

visit

foreign

countries
due

to
exigencies

his

service,

on
his

return
to
India,

he
used
to

reside

with

his

family

and
on
one
occa

sion,
he
went
to

Australia

and

taken
his

wife
and
son

alongwith
him
and

staye

d
in

Sydney

from

13.9.99
to

23.9.1999
and,

ereafter,

returned

to
India

and
stayed
at

Pune
up
to
3.10

.99.

again

went

to
Australia
and

resided
there
fr

4.10.99

given	up his job at	Sydney	as she was	fascinated b	the
western	life and	desired	that the app	ellant should	get
a	job in foreign	country.	She wanted	to enjoy	the
freedom	from all		responsibilities	and b	ondages,
including	the responsibility	of	child Ninad.	It is	the
case	of the app	ellant	that on	14.12.1999,	the
Responde	nt-wife abandoned		the appellant	-husband	leaving
the	child Ninad, who	was	ultimately found	at in	Child
Care	Centre at P	une.	Since then,	neither	the
responde	nt-wife is	traceable	nor her	whereabouts	are
known.	Therefore, t	he a	ppellant was	left with	no

given

up
his
job
at

Sydney

as
she
was

fascinated
b

the

western

life
and

desired

that
the
app

ellant
should

get

job
in
foreign

country.

She
wanted

to
enjoy

the

freedom

from
all

responsibilities

and
b

ondages,

including

the
responsibility

child
Ninad.

It
is

the

case

of
the
app

ellant

that
on

14.12.1999,

the

Responde

nt-wife
abandoned

the
appellant

-husband

leaving

the

child
Ninad,
who

was

ultimately
found

at
in

Child

Care

Centre
at
P

une.

Since
then,

neither

the

responde

nt-wife
is

traceable

nor
her

whereabouts

are

known.

Therefore,
t

he
a

ppellant
was

left
with

7.	T	he lear	ned Judg	e of the F	amily Cour	t took	a
technical	view	of	the	matter	and	came	to	a c	onclusion
that	the a	ppellant-	husband	has	not	been	abl	e to	prove
the	cruelty.	In	the	view	of the	lea	rned	Judge of	the
Family	Court	aba	ndoning	t	he child		and	husband,	by
itself,	could	not	lead	to	an inf	erence	of	cruelty	and
further	merely		because	the	wife	was	missing	or	that

he lear

ned Judg

e of the F

amily Cour

t took

technical

view

the

matter

and

came

a
c

onclusion

that

the
a

ppellant-

husband

has

not

been

abl

e
to

prove

the

cruelty.

the

view

of
the

lea

rned

Judge
of

the

Family

Court

aba

ndoning

he
child

and

husband,

itself,

could

not

lead

an
inf

erence

cruelty

and

further

merely

because

the

wife

was

missing

that

9.		During the pendency of this appea	l before this
Court,		all attempts were made	to serve the		respondent
wife		including substitute serv	ice through		publication
but	the	whereabouts of the	respondent-wife	are	not
known.		The learned Counsel	appearing	for	the
appellant-		husband submitted	that the	appell	ant-husband
contacted		the parents-in-law i.e.	the parents	of	the

During the pendency of this appea

l before this

Court,

all
attempts
were
made

to
serve
the

respondent

wife

including
substitute
serv

ice
through

publication

but

the

whereabouts
of
the

respondent-wife

are

not

known.

The
learned
Counsel

appearing

for

the

appellant-

husband
submitted

that
the

appell

ant-husband

contacted

the
parents-in-law
i.e.

the
parents

the

circumsta	nce, the C	ourt	may	allow	the	appe	al.		The
learned	Counsel	for	the	appella	nt-husband		has		also
placed	reliance on	the	decis	ion of	the	Apex	Court		in
case	of G.V.N.KAM	ESHWA	RRAO	VS.	G.JA	BILLI,	repo	rted	in
(2002)	2 SCC 296.	It	is	submitted	that	the	fact	in	the
case	supra, broadly	tally	with	the	facts	of	the		present
case	and as t	he	wife	has	deserted	t	he	ap	pellant-
husband	and her wh	ereabouts	are	not	known,	the	re	was	no
reason	for the	Family	Cour	t to	refuse	the	prayer		for
divorce,	on both the counts i.e.	cruelty	and
desertion	.

circumsta

nce,
the
C

ourt

may

allow

the

appe

al.

The

learned

Counsel

for

the

appella

nt-husband

has

also

placed

reliance
on

the

decis

ion
of

the

Apex

Court

case

of
G.V.N.KAM

ESHWA

RRAO

VS.

G.JA

BILLI,

repo

rted

(2002)

2
SCC
296.

submitted

that

the

fact

the

case

supra,
broadly

tally

with

the

facts

the

present

case

and
as
t

wife

has

deserted

pellant-

husband

and
her
wh

ereabouts

are

not

known,

the

was

reason

for
the

Family

Cour

t
to

refuse

the

prayer

for

divorce,

on both the counts i.e.

cruelty

and

desertion

11.		Our	attention is also dr	awn to a C	ertificate,
issued		by	the Police	Inspe	ctor,	Yerwada	Police	Station
on	2.5.2	001,	which is	address	ed to	the	father of	the
appellant		as	regards	the	where	abouts	of	their
daughter-i	n-law	that	she has	not	been	found	yet and	the
search of	the lad	y in the	said missing file	is

11.

Our

attention is also dr

awn to a C

ertificate,

issued

the
Police

Inspe

ctor,

Yerwada

Police

Station

2.5.2

001,

which
is

address

ed
to

the

father
of

the

appellant

regards

the

where

abouts

their

daughter-i

n-law

that

she
has

not

been

found

yet
and

the

search of

the lad

y in the

said missing file

12.		Therefore,	taking into consi	deration the	fact
that	the	wife	has abandon	ed not	only the appellant	but
also	her	minor	child and	that	the whereabouts of	the
respondent-	wife	are	not	known	inspite of all	efforts
being	made	to	trace her	out, we	do not find	any
justification		in	denying to	the	appellant, the	decree

12.

Therefore,

taking into consi

deration the

fact

that

the

wife

has
abandon

ed
not

only
the
appellant

but

also

her

minor

child
and

that

the
whereabouts
of

the

respondent-

wife

are

not

known

inspite
of
all

efforts

being

made

trace
her

out,
we

do
not
find

any

justification

denying
to

the

appellant,
the

decree

	The appeal is a	llowed.
	It is	declared	that	the	marriag	e	solemnised
between	the	appellant	and	the	resp	onden	t on
14.5.1996,	stands	disso	lved	by	a	decr	ee of
divorce.
	Decree be	drawn	up ac	cordingly	with	no	order as
to		.....					costs.
[Amjad A.Sayed, J]				[J.N.	Patel, J.]

The appeal is a

llowed.

It
is

declared

that

the

marriag

solemnised

between

the

appellant

and

the

resp

onden

t
on

14.5.1996,

stands

disso

lved

decr

ee
of

divorce.

Decree
be

drawn

up
ac

cordingly

with

order
as

.....

costs.

[Amjad A.Sayed, J]

[J.N.

Patel, J.]

Nitin Vishwas Gadgil v. Nishigandha Nitin Gadgil

Case brief

What is this about?

What did the court decide?

Nitin Vishwas Gadgil v. Nishigandha Nitin Gadgil

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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Parties & counsel

Coram

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