A take from a aam adami: Ld. Advocates advising members that the lap of Mother is the only place where a child should stay, are they still in agreement to the below Judgment (5 weeks old child left behind by mother) ?
Ld. Advocates members - Kindly don't treat / give advise to general public that role of a father in India are only to be that of seed givers.
ITEM NO.104 COURT NO.10 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO. 5078 OF 2005
BHAVNABEN Appellant (s)
VERSUS
HARSHAD ZINABHAI DESAI Respondent(s)
(With appln. for permission to file rejoinder affidavit and office
report )
Date: 08/09/2010 This Appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE P. SATHASIVAM
HON'BLE DR. JUSTICE B.S. CHAUHAN
For Appellant(s) Mr. Nitin K. Gupta, Adv.
Mr. Shivaji M. Jadhav,Adv.
For Respondent(s) Mr. A.V. Savant, Sr.Adv.
Mr. Shishir Deshpande, Adv.
Mr. Amit Yadav, Adv.
Ms. Sujata Kurdukar,Adv.
UPON hearing counsel the Court made the following
O R D E R
The appeal is dismissed. No cost.
[ Usha Bhardwaj ] [ Savita Sainani ]
Court Master Court Master
Signed order is placed on the file.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5078 OF 2005
Bhavnaben ....Appellant
Versus
Harshad Zinabhai Desai ....Respondent
O R D E R
Aggrieved by the judgment and order of the High
Court dated 21.11.2003, granting decree for divorce,
dissolving the marriage of the appellant and the
respondent, wife has filed the above appeal.
Both the appellant and respondent got married on
02.04.1989 and a daughter was born on 22.12.1989. It is
the case of the husband that immediately after a month i.e.
on 30.01.1990, the appellant-wife left the matrimonial home
and the child who was about five weeks at Dadra and
deserted him.
When there was a series of civil and criminal
proceedings, the husband filed a petition for divorce on
13.02.1992 at District Court, Dadra and Nagar Haveli at
Silvassa. The appellant-wife filed a written statement on
29.07.1992 disputing the claim of the husband. Before the
District Court, the huaband apart from examining himself as
PW-1 also examined one independent witness by name Mr.
Natwarlal Shah as PW-2. The wife has examined as RW-1. By
order dated 26.11.1999, the District Court, Silvassa,
dismissed husband's petition for divorce.
Questioning the dismissal of his divorce petition,
the husband filed First Appeal No.635 of 2000 before the
High Court of Bombay. The High Court, after considering
all the materials including the evidences of PW-1, PW-2 and
RW-1 and after finding that (a) wife has no justifiable
reason to stay away from her husband, (b) refusing to
cohabit, (c) leaving one month child uncared for, accepted
the case of the husband and granted decree for divorce by
dissolving their marriage. Challenging the said order of
the High Court, the wife filed the above appeal by way of
special leave petition.
Heard learned counsel for the appellant as well as
for the respondent.
We perused the relevant materials such as specific
assertions in the form of the petition and counter,
evidence of PW-1, PW-2 and RW-1 as well as the orders
passed by the District Court and the High Court. There is
no reason to disbelieve the evidence of independent
witness, Mr. Natwarlal Shah (PW-2). From the materials,
the following facts have been found proved by the High
Court:
i) The wife left the matrimonial home leaving the
infant child of five weeks, on 30.01.1990.
ii) There was no justification for the wife to leave the
matrimonial home on 30.01.1990.
iii) The wife unjustifiably threw the entire
responsibility of bringing up the child of five weeks on
the Respondent husband.
iv) The appellant-wife refused to cohabit with
thehusband during several reconciliation attempts made
during the pendency of the proceedings.
v) Obstinate attitude adopted by the appellant-wife in
refusing the husband's bona fide offer of reconciliation.
In addition to the above factual findings, the High
Court has also concluded that the wife is guilty of
desertion for a continuous period of more than two years
without any justification and on this ground also the
husband is entitled for a decree of divorce.
It is also pointed out that there is an
irretrievable break down of the marriage between the
spouses who have lived separately for nearly 20 years from
30.01.1990.
Taking note of all these aspects, factual findings
by the High Court based on acceptable evidence, conduct of
the appellant-wife in leaving the matrimonial home
immediately after giving birth to a child and refusal to
join matrimonial home, we feel that the High Court was
fully justified in granting decree for divorce in favour of
the husband. We do not find any merit in the appeal filed
by the wife, consequently, the same is dismissed. No
cost.
...................J.
(P. SATHASIVAM)
...................J.
New Delhi, (Dr.B.S. CHAUHAN)
September 08, 2010.
Link: https://courtnic.nic.in/supremecourt/temp/ac%20507805p.txt
