JUDGMENT : (PER : HONOURABLE MR. JUSTICE A.Y. KOGJE) 1. The present appeal is preferred under Section 19 of the Family’s Court Act read with Section 96 of the CIVIL PROCEDURE CODE against the judgment and order dated 01.07.2017 in Family Suit No.540 of 2015 passed by the Family Court No.2, Ahmedabad. The original proceedings were in the form of an application under Section 13 (1) of the HINDU MARRIAGE ACT seeking a decree of divorce on the ground of cruelty and desertion by the appellant-husband which came to be rejected by the impugned judgment and order. Against the aforesaid rejection of the application preferred by the husband, present appeal is preferred. 2. Learned advocate for the appellant has at the outset submitted that both the husband and wife are now senior citizen having crossed the age of 62 years plus and having separated since last 38 years. He also submitted that out of the wedlock, one son is borne out who also is now 36 years of age and residing with respondent-wife and he has also started his own family consisting of his own wife and two girl child who are presently college and school going. 2.1 Learned advocate for the appellant has submitted that the appellant has raised a contention that the wife was suffering with Tuberculosis at the time of marriage which she did not disclose and therefore, considering the nature of disease suffered by the wife and not being disclosed to the appellant, amounts to cruelty for which the appellant was entitled a decree of divorce. He also submitted that the respondent on her own started residing separately without there being any valid reason at the hands of the appellant and she had continued to reside separately for more than two years before which the family suit was filed and therefore also he is entitled to decree of divorce on the ground of desertion. 2.2 He submits that the appellant had made sufficient efforts to bring back his wife including the filing of the proceedings under Section 9 of the HINDU MARRIAGE ACT for restitution of his conjugal rights however, inspite of coming back to the matrimonial home, the respondent preferred an application for maintenance and continue to reside separately with her parents. 2.2 He submits that the appellant had made sufficient efforts to bring back his wife including the filing of the proceedings under Section 9 of the HINDU MARRIAGE ACT for restitution of his conjugal rights however, inspite of coming back to the matrimonial home, the respondent preferred an application for maintenance and continue to reside separately with her parents. 2.3 Learned advocate for the appellant further submitted that as the appellant was left alone with his aged parents and he himself was employed, he had no option, but to engage someone who take care of his parents and in that effort, he had engaged after a public advertisement one Smitaben. It is with this Smitaben the appellant developed relationship over the period out of his lonely life that he started living with said Smitaben under the live-in-relationship. 2.4 Out of the live-in-relationship, two children have been borne who are still studying and whose responsibilities are squarely on the shoulder of the appellant however, by way of permanent alimony, the appellant is ready and willing to pay an amount of Rs.15 Lakhs lump sum. 2.5 Learned advocate for the appellant further submitted that the appellant has duly complied with the directions of the Court for maintenance of the respondent and had without default since 1990 paid maintenance to the tune of Rs.7,000/- per month. According to learned advocate, till date, total maintenance paid has added upto Rs. 16,25,000/- (Approximately). 2.6 Learned advocate for the appellant has lastly submitted that the error is committed by the Family Court in considering the ground of the respondent suffering from Tuberculosis and not disclosed the same to the appellant, is a ground amounting to cruelty. 2.7 Learned advocate submitted that the error is committed on behalf of the Family Court in not treating the period of almost 36 years as a period of desertion to grant decree of divorce in favour of the appellant. 2.8 Learned advocate has thereafter, placed on record various decisions of the Apex Court being in case of Ramesch Chandar v/s. Savitri (Smt) , reported in, (1995) 2 SCC 7 and in case of Prakashchandra Joshi v/s. Kuntal Prakashchandara Joshi @ Kuntal Visanji Shah , reported in 2024 INSC 55 , contending that whenever there is a irretrievable break down of marriage and the parties are residing separately for long period, the decree of divorce be granted. 3. 3. As against this, learned advocate for the respondent opposing the grant of appeal submitted that the Family Court has rightly not believed that the appellant was able to make out the ground of cruelty on the basis of Tuberculosis suffered by the wife before the marriage and not disclosed the same to her husband or any other family members. In this regard, he has referred to the evidence of the treating doctor, who was examined vide Exh.104, whose deposition would establish that the respondent was operated on 20.02.1989 and that the disease of Tuberculosis was six months old prior to the operation, whereas the marriage was solemnized on 03.06.1986. Therefore, such a ground was rightly discarded. 3.1 Insofar as the ground of desertion is concerned, learned advocate for the respondent has argued that admittedly the appellant was having an illicit relationship with one Smitaben and out of such relationship, two daughters have been borne and therefore, the respondent had sufficient ground to stay away from the society of the appellant and therefore, the period during which the respondent had stayed away, cannot be treated as a desertion. 3.2 Learned advocate has submitted that earlier also, the appellant has preferred an application for divorce on the very same ground which came to be rejected by the Family Court, against which though the appellant had preferred an appeal before the High Court, the same came to be dismissed for default and therefore, the present appeal as well as original proceedings could not have been entertained and much less relief for divorce be granted. 3.3 Learned advocate for the respondent has supported the reasonings given by the Family Court in the impugned judgment and order. 4. The Court has heard learned advocates for the parties and perused the impugned judgment and order. The chronology of facts which is not in dispute are recorded as under:- 5. The marriage between the parties was solemnized as per the Hindu Rites and Rituals on 03.06.1986 in Ahmedabad and thereafter, out of the wedlock on 01.12.1987, a son Chirag was borne, who at present reportedly is aged 36 years of age and is in private job. The respondent wife is being maintained by the son. The marriage between the parties was solemnized as per the Hindu Rites and Rituals on 03.06.1986 in Ahmedabad and thereafter, out of the wedlock on 01.12.1987, a son Chirag was borne, who at present reportedly is aged 36 years of age and is in private job. The respondent wife is being maintained by the son. 5.1 It is on 31.08.1988 that the wife had left the company of the appellant and thereafter, on account of her medical condition, it appears that she was operated for Tuberculosis on 20.09.1989. As continuously the wife was staying away from the company of the appellant on 02.07.1990, a notice came to be issued by the appellant for restitution of conjugal rights however, in response to such notice, a reply and counter notice was addressed on 06.07.1990, wherein the contents of the notice by the appellant-husband were denied and a counter claim for medical expense to the tune of Rs.25,000/- was raised. The appellant had thereafter, issued one more communication dated 26.07.1990. However, there does not appear to be any reconciliation and the wife appears to have continuously stayed separately. 6. The issue with regard to the maintenance is concerned, an application for claiming maintenance was filed by the wife, wherein the Court concerned had passed an order to pay maintenance to the tune of Rs.7,000/-, both for the wife and the child which admittedly has been continuously paid and approximately an amount of Rs.16,25,000/- has been paid towards maintenance. 7. The appellant-husband had originally approached the Family Court by preferring the aforesaid petition, wherein the cause of action would reveal the basis of the respondent-wife suffering with Tuberculosis and hiding the same from the appellant and only at the stage of her being operated that it was revealed to the appellant that she is suffering with Tuberculosis. Moreover, the other cause of action is that despite notice being given to the respondent-wife to join the society of the husband, there is no act on the part of the wife to join the society of the husband and therefore, the wife had effectively deserted the appellant for the period of more than two years prior to the filing of the proceedings before the family court for divorce. 8. 8. The Court may refer to the argument made by the learned advocate for the appellant that on account of respondent-wife suffering with Tuberculosis was a reason why the appellant had ground for alleging cruelty as she had not disclosed the suffering of Tuberculosis even when the marriage took place. This one ground that is argued by the learned advocate for the appellant is immediately required to be turned down in view of the evidence which has come on record in the form of deposition of the treating doctor, who has treated the respondent-wife for Tuberculosis. 9. During the course of trial, Exh.104 is the deposition of Doctor Dinkar Gulabray Yagnik has been examined, who has deposed that he had treated the respondent-wife for Tuberculosis and had in fact undertaken an operation on 20.02.1989 however, in the very deposition, he has deposed that the age of the disease of Tuberculosis was six months old prior to the date on which she was operated and therefore, the age of the disease of Tuberculosis could not be beyond September-1988, whereas even on the record it is coming out that the marriage of the parties have been solemnized in the year 1986. Therefore, the Tuberculosis if at all suffered by the respondent-wife would be two years after the date of marriage and therefore, the ground i.e. advanced by the appellant with regard to suffering of Tuberculosis, cannot be accepted. 10. However, the ground on desertion with regard to which the evidence of the appellant recorded vide Exh.15 in the form of affidavit would indicate that the appellant as well as his relatives had approached the family of the respondent-wife from 20.09.1988 till 09.06.1990 requesting her to join the family of the appellant however, despite the efforts being made by the several individuals, who were named in the deposition, she did not accede to the request and had in fact indicated that only way out is the divorce between the two. 11. The Court may thereafter, referred to the notices issued by the appellant and was responded to by the respondent-wife which were produced at Exh.25, 26 and 27 respectively. 11. The Court may thereafter, referred to the notices issued by the appellant and was responded to by the respondent-wife which were produced at Exh.25, 26 and 27 respectively. The perusal of these documents would indicate that the wish of the appellant was to call back the respondent to resume matrimonial relationship, where in para-8 of such notice, it is stated that within a period of three days of receiving such notice, the respondent wife was called upon to join the family alongwith their son however, there does not appear to anything on record that the respondent-wife has joined the family of the appellant instead a reply to the notice and counter notice Exh.26 has been issued on behalf of the wife, wherein in para-9 and 10 of such notice at Exh.26, a claim is made for receiving an amount of Rs.25,000/- which were spent by the father of the respondent-wife. It was also narrated in the very reply to the notice that the reason why the respondent is not joining the appellant was that the appellant was thinking about the second marriage. 12. According to argument advanced by the learned advocate, the second marriage which the appellant has entered into is a cause which is sufficient for the respondent- wife to stay away from the society of the appellant and therefore, the same would not be construed as desertion as such cause was provided by the conduct of the appellant himself. 13. In this connection The Court has perused the evidence of the respondent-wife at Exh.23 which is in the form of an affidavit and the cross-examination thereto. In the evidence in the form of an affidavit at Exh.23, a reference is made to previous round of litigation to contend that as previously also on the same ground, the appellant-husband had filed the litigation which he did not succeed and therefore, the second round of litigation ought not to be considered. However, the evidence at Exh.23 only reflects to the filing an application under the provisions of HINDU MARRIAGE ACT being application No.58 of 1994, which in the deposition is stated to have been dismissed for default. Against which also, the appeal preferred before the Gujarat High Court being First Appeal No.2324 of 2000 has also been dismissed for want of prosecution. Against which also, the appeal preferred before the Gujarat High Court being First Appeal No.2324 of 2000 has also been dismissed for want of prosecution. The evidence of the wife itself reflects that the previous petition was dismissed for non prosecution therefore the issues were not examined with merits, there is nothing otherwise on record of the present appeal to presume that the previous round of litigation was on merits. over and above the cause of action on the ground of desertion would continue to subsists. 14. The present litigation on the basis of desertion considering the period for which wife had withdrawn from the society of the appellant since 1998 is substantiated even from the deposition of the respondent-wife itself. In para-9 of such evidence in chief, she has admitted that since 1988 alongwith her son she had gone to the resident of her parents and had thereafter waited for the husband to come and take her back to her society. However, there is no reference to the fact of second marriage and the only place, where she refers to the second marriage is with regard to information that she received that the appellant is having relationship with other lady through whom he has two girl children. This contention, even if it is to be taken into consideration, has not found any place at the first instance when she has replied to the notice in the year 1990. 14.1 Considering the facts which have come on record namely the marriage between the parties in the year 1986 and the separation in the year 1988, whereas the relationship with the lady Smitaben, if at all has started w.e.f. 31.10.2001, when the said Smitaben joined the family of the appellant in response to the advertisement issued in ‘Gujarat Samachar’ as a maid servant to take care of the aged parents of the appellant and therefore, for the period between 1988 to year 2001, there does not appear to be any cause for the respondent-wife to stay away from the society of the appellant. Therefore, the period between 1988 to 2001, being the period more than two years the appellant was able to establish desertion of the respondent without any lawful reason to stay away from the society of the appellant. 15. Therefore, the period between 1988 to 2001, being the period more than two years the appellant was able to establish desertion of the respondent without any lawful reason to stay away from the society of the appellant. 15. To make out a ground of desertion the provision of HINDU MARRIAGE ACT , would provide for as under quote the relevant section S. 13, 16. In the opinion of the Court, considering the aforesaid evidence which has come on record, an error is committed by the learned Family Court in not accepting the period as between 1988 to 2001 to be a period for desertion which has therefore, entitled the appellant for divorce. 17. The Court is required to take into consideration the present status also,wherein the appellant is now a retired employee and aged 64 years. The respondent-wife is also aged 62 years and as on date, they have stayed separated for a period of 38 years. 18. Considering the submission made on behalf of the respondent-wife regarding present status and the fact that the wife will have to maintain herself, of course, she is being entertained by the son, still the primary responsibility of maintaining the respondent-wife would that be of the appellant. 19. In this connection, the Court may refer an order dated 10.09.2024, wherein the willingness of the appellant has been recorded and has offered an amount of Rs.15,00,000/- towards the full and final alimony to the respondent. when this court has come to a conclusion that the marriage is required to be dissolved on the ground of desertion and has also considered the existing factual scenario, the appellant is reportedly having 2 immovable property, his pension and after his death the family pension, all of which would be going in favour of the second wife as she has been shown as the nominee, so at the same time the respondent who has remained a legally wedded wife having bore a child of the appellant can not be left high and dry. 20. Therefore the deems it fit to invoke Section 25 of the HINDU MARRIAGE ACT , and considering the offer made voluntarily and the totality of facts and circumstances to make provision for the respondent wife as well so as to enable to live a dignified life hereon. 20. Therefore the deems it fit to invoke Section 25 of the HINDU MARRIAGE ACT , and considering the offer made voluntarily and the totality of facts and circumstances to make provision for the respondent wife as well so as to enable to live a dignified life hereon. 20.1 At this stage, the Court may also consider the submission made on behalf of the wife that during period separation, the appellant-husband has become owner of two residential properties, whereas there is no residential property of her own available with the appellant and therefore, proportionately the amount of alimony be considered towards permanent alimony. The Court has also taken into consideration the submissions made by both the sides with regard to nature of immovable properties, the pension that the appellant continuous to receive and also the provision for family pension from the employer of the appellant which are required to be considered while considering the permanent alimony. 20.2 Considering the overall facts and circumstances, the Court deems it fit to hold that an amount of Rs.20,00,000/- would be just and proper towards permanent alimony for maintaining the wife hereinafter. The amount of Rs.20,00,000/- is directed to be deposited within a period of two months from today with the Family Court. 21. Upon such deposit, it is open for the respondent-wife to withdraw an amount of Rs.5,00,000/- from the aforesaid amount immediately. The balance amount of Rs.15,00,000/- be deposited in the Fixed Deposit running in the name of the respondent-wife earning non-cumulative interest which the wife is entitled to withdraw periodically. The Court may hereby observe that in view of the permanent alimony being paid under this order, the appellant may not be now required to pay the interim maintenance as is ordered by the Family Court, Ahmedabad in Criminal Misc. Application No.1035 of 2017. 22. In view of the aforesaid finding, the appeal is allowed. The impugned judgment and decree dated 01.07.2017 in Family Suit No.540 of 2015 passed by the Family Court No.2, Ahmedabad is ordered to be quashed and set aside. The marriage of the parties i.e. Chimanlal Sajanbhai Bathwar- appellant husband and Amriben @ Amitaben Chimanlal Bathwar respondent-wife solemnized at Ahmedabad on 03.06.1986 is ordered to be dissolved. Rule is made absolute.