MRS. HETAL SHARAD PARMARversusMR. SHARAD DHIRAJLAL PARMAR

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                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CIVIL APPELLATE JURISDICTION


                           FAMILY COURT APPEAL (STAMP) NO. 35573 OF 2024
                                              WITH
                               INTERIM APPLICATION NO. 1461 OF 2026

                      Mrs. Hetal Sharad Parmar
                      Aged : 30 years,
                      Occu.: Housewife,
                      Residing at : 203, 2nd Floor,
                      Mahavir       Dham     Building                   …Appellant/Applicant
                      Devidayal Road, Mulund (West),
                      Maharashtra, Mumbai 400 080.

                              Versus
                      Mr. Sharad Dhirajlal Parmar,
                      Age : 31 years, Occu.: Business,
                      R/at. Flat No. - 202, Tridev Tower,
                      Bhakti Marg, Mulund (West),
                      Mumbai 400 080,                                              …Respondent
                      Maharashtra, India.


                      Mr. J.G. Sharma, Advocate for the Appellant/Applicant.
                      Mr. Vikas G. Saindane, Advocate for the Respondent.


                                              CORAM:         BHARATI DANGRE &
                                                             MANJUSHA DESHPANDE, JJ.

                                              DATED:         17th JULY 2026.

                      JUDGMENT (Per : Manjusha Deshpande, J.) :-

                      1.      The Appellant wife being aggrieved by the ex-parte

RAJESHRI              decree of dissolution of marriage passed by the learned
PRAKASH
AHER
Digitally signed by
RAJESHRI PRAKASH
AHER
Date: 2026.08.04
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19:06:47 +0530
                      04.08.2026.
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Judge of the Family Court Bandra, Mumbai, in Petition No. A-

428 of 2023, under Section 13(1)(i-a) and (i-b) of the Hindu

Marriage Act, 1955, on the ground of desertion and cruelty

has assailed it in the present Appeal.


2.      The marriage between Appellant and Respondent was

solemnized as per Hindu rites on 07.05.2017, which was an

arranged marriage. On account of her mother's kidney

related ailment, the Appellant was frequently required to

attend her mother and accompany her for dialysis thrice a

week, of which the Respondent-husband was aware. Even

though the Respondent had agreed to this arrangement,

eventually, when she joined him at the matrimonial home,

she was asked by the Respondent to abide by the family’s

culture and follow the unwritten rules of the family. She was

taunted by the members of his family, for not bringing

sufGcient dowry. There used to be frequent quarrels at her

matrimonial home. She was also abused by the family

members of the Respondent-husband without any reason.

Fed up with the treatment meted out to her by the

Respondent-husband and his family, she lodged complaint in

the police station.


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3.      The Appellant has Gled FIR No. 470 of 2022 on

05.07.2022 against the Respondent-husband and his family

members; a Domestic Violence Complaint (‘DV Complaint’, for

short) against the Respondent and his family on 24.11.2020;

an FIR on 05.07.2022 under Sections 498-A, 406 and 323 of

the Indian Penal Code (‘IPC’ for short); there are other

ancillary proceedings arising out of these complaints that are

pending between the parties.


4.      The learned Advocate for the Appellant submits that

during the pendency of all the aforementioned proceedings,

the Family Court allowed the petition for dissolution of

marriage Gled by the Respondent-husband ex parte on the

ground of desertion.


        It is submitted that the Appellant-wife did not get an

opportunity to defend the Hindu Marriage Petition, since she

had completely relied upon her Advocate on record.

According to the Appellant, she did not receive any response

from her Advocate whenever she enquired about the status

of the Hindu Marriage Petition pending before the Family

Court. Whenever she contacted the Advocate on record



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regarding the said proceedings, she did not receive

appropriate response from the Advocate. It is submitted that,

in fact, she intended to contest the dissolution of marriage on

merits, as she has strong grounds to oppose the same. It is

further submitted that it was due to the sheer mistake of the

Advocate, that the written statement could not be Gled before

the Family Court, as a result of which the petition for

dissolution of marriage is allowed ex parte.


5.      In support of her submissions that the litigant should

not suffer due to the mistake of his Advocate, the learned

advocate for the Appellant has relied on the judgment of the

Hon’ble Supreme Court in RafGq and Another v. Munshilal

and another1 where the Hon’ble Supreme Court has held that

for whatever reason the advocate might have absented

himself from the Court, the innocent litigant should not be

allowed to suffer injustice, for the fault of his advocate.


6.      The learned Advocate submits that the Judge of the

Family Court has observed in the judgment that the

Appellant-wife has deserted the Respondent-husband since

25.03.2020, however, the fact remains that the Respondent

1       AIR 1981 SC 1400

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himself has averred in the written statement Gled in the DV

proceedings in DV/53/2020 that the Appellant left the

matrimonial home in August 2020. Thus, in view of the

aforementioned observation, it is submitted that if the

ex parte order is not set aside, the Appellant would be

deprived of the valuable right to oppose, which would cause

grave injustice to the Appellant, and her other litigation is

likely to be affected because of the impugned order.


7.      On the contrary the learned Advocate Mr. Vikas

Saindane, appearing for the Respondent-husband submitted

that the present Appeal has been Gled by the Appellant with

an intention to deprive the Respondent-husband the beneGt

of the judgment and decree dated 19.06.2024. Had there

been any intention on her part to resume cohabitation, she

would have deGnitely returned back and wouldn't have Gled

proceedings such as complaint under the Protection of

Women from Domestic Violence Act, 2005 (“DV Act”, for

short) and the FIR under Section 498-A of the Indian Penal

Code. It is submitted that the reason given by the Appellant

for her failure to cause appearance in the Hindu Marriage

Petition is that, her advocate did not keep tab on the matter


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on the dates of the hearing in the divorce proceeding.

Therefore, due to negligence of the advocate and the

surrounding circumstances, she was unable to participate in

the said proceeding. This stand of the Appellant is patently

false, as all the while she had participated in the Court

proceeding concerning maintenance under the DV Act i.e.

DV/53/2020. The Appellant-wife was regularly attending the

dates in the aforesaid proceeding. She was very much aware

about the pending divorce proceedings, which can be

gathered from her own admission made in the cross-

examination in the D.V. Case No.DV/53/2020. In fact, the

Appellant-wife had caused appearance before the Family

Court in the Marriage Petition No. A/428/2023 along with

her advocate and also attended the meeting before the

marriage counselor.


        It is submitted that, the matter before the marriage

counselor could not be settled because of the enormous

demand of alimony made by the Appellant-wife. Thereafter,

she had stopped attending the divorce proceeding and

continued to attend the hearings in the DV case, which was

giving her maintenance regularly.


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        It is urged that, the Appellant is trying to take

advantage of her own wrong by resorting the falsities and

illegalities by suppressing the facts before this Court. She

herself has admitted that, she left her matrimonial home in

March 2020. In her cross-examination in the DV case, she

has admitted that, she had only once visited the house of

Respondent-husband in August 2020, to take possession of

her gold ornaments and belongings. It is also admitted in her

cross-examination that, she did receive the notice issued by

the Respondent-husband for restitution of conjugal rights

through his advocate on 15.01.2021.


        Thus, in view of the aforementioned background, the

period of 2 years was already over when the Hindu Marriage

Petition No.A/428/2023 was Gled by the Respondent on

13.02.2023. The Appellant had been served with the

summons long before and had due knowledge of the Divorce

Petition No. A/428/2023, which was pending before the

Family Court. It is therefore prayed that the Appellant

cannot be allowed to take advantage of her own wrong by

granting her prayer in the Appeal, since it is evident that the

Appellant is not interested in resumption of cohabitation, but


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interested in protracting the litigation so as to harass the

Respondent. It is therefore prayed that, the Appeal of the

Appellant deserves to be dismissed.


8.      We have heard the respective counsel and also perused

the documents placed on record. From the perusal of the

impugned judgment dated 19.09.2024, it is evident that the

Petition for dissolution of marriage has been Gled under

Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955.


        So far as the Grst ground of dissolution of marriage

invoked by the Respondent on the ground of cruelty as per

Section 13(1)(i-a) is concerned, the learned Judge while

declining the prayer on that, ground has observed that the

Petitioner has failed to prove that the Appellant has

subjected him to cruelty as alleged. So far as the other

ground i.e. Section 13(1)(i-b) for desertion invoked by the

Respondent-husband is concerned, the learned Judge of the

Family Court, has held that the Appellant-wife has left the

company of the Respondent-husband on 25.03.2020, without

any reasonable cause, and the Respondent has examined

himself and stated about the efforts made by him for



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reconciliation. He has also supported his testimony by

placing on record the police reports and complaints Gled

against him by his wife and also the legal notice issued by

him for resumption of cohabitation. Inspite of the notice

issued to her, the Appellant-wife has neither resumed

cohabitation nor given any response to the notice.


9.      In her cross-examination in DV Case No.DV/53/2020,

she has admitted that, she has not Gled any application for

resumption of cohabitation against the Respondent-husband,

nor did she Gle any application for judicial separation. She

admitted that she has Gled one case against the Respondent-

husband at Mulund Police Station, Mumbai. She has also

admitted in her cross-examination that she did receive a

notice from Family Court, Bandra, in which she appeared

through her advocate and participated in the counseling on

one occasion. She further admitted that she didn't Gle any

written statement before the Family Court, Bandra. Thus,

from the cross-examination of the Appellant in the D.V.

Proceedings, which is annexed to the reply by the

Respondent, it can be gathered that the Appellant after

leaving her matrimonial home on 25.03.2020 had only once


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visited her matrimonial home to collect her Stridhan. She

also admitted that she has received a notice for restitution of

conjugal        rights,   however,    she was        not    interested in

resumption of cohabitation due to the alleged ill-treatment.


10.     It can be gathered from the cross-examination of the

Appellant that she was very much aware about the pending

divorce proceeding. However, she has not shown any interest

and diligence to attend the dates in the proceedings for

divorce. On the other hand, she was regularly attending the

dates in the DV proceedings, where she was successful in

obtaining an order of maintenance of Rs.20,000/- per month.

The marriage between the parties has been dissolved by

invoking Section 13 (1) (i-b) of the Hindu Marriage Act,

1955, which reads thus :


      “13. Divorce. -- (1) Any marriage solemnized, whether
      before or after the commencement of this Act, may, on a
      petition presented by either the husband or the wife, be
      dissolved by a decree of divorce on the ground that the
      other party--

      [(i)    has, after the solemnization of the marriage, had
      voluntary sexual intercourse with any person other than
      his or her spouse; or

      (i-a)     …..



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      (i-b) has deserted the petitioner for a continuous period
      of not less than two years immediately preceding the
      presentation of the petition; or”

11.     In the present case, the Respondent-husband has made

an averment in the Petition itself that, the Appellant has

deserted him on 25.03.2020, and the petition for dissolution

of marriage is presented on 13.02.2023. Section 13(1) (i-b)

contemplates that there should be desertion by the Appellant

for a continuous period of not less than two years. In the

present case, it is more than two years after the date on

which the Appellant-wife has left her matrimonial home in

August 2020 with an intention of never returning back. Her

intention can very well be gathered from the date on which

she Gled the DV case i.e. 24.11.2020, wherein she had made

allegations of domestic violence against the Respondent-

husband. She has also admitted of having received the notice

for restitution of conjugal rights issued by the Respondent-

husband on 15.01.2021.


12.     Thus, in view of refusal of the Appellant to resume

cohabitation, having failed to respond to the notice issued by

the Respondent, and also considering that she has left her

matrimonial home on her own free will, in August 2020 the

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learned Judge of the Family Court has held that the

Respondent-husband has established the case of constructive

desertion. The oral evidence led by the Respondent has gone

unchallenged. In view of the deposition of Respondent-

husband about the date of desertion and the efforts made by

him for reconciliation, coupled with the other documents

placed on record, which are proved by him, the learned

Judge has rightly held that the Respondent has established

by way of unrebutted oral evidence that there is willful

desertion at the hands of his wife for more than 2 years, till

the date of Gling of the Petition, and has accordingly

answered the Point No.2 in afGrmative and accordingly the

marriage solemnized between the parties has been dissolved.


13.     Since the evidence led by the Respondent has gone

unchallenged, and it is also supported by producing evidence

in support of the claim of the desertion. It is also observed by

the learned Judge of the Family Court that, inspite of service

of summons, the Appellant has failed to lead any evidence,

that itself fortiGes the reluctance of the Appellant to resume

cohabitation. It is also observed that, though the Appellant-

wife appeared before the marriage counselor, she has failed


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to appear and Gle her written statement on the subsequent

dates in the proceedings for dissolution of marriage. This

conduct of the Appellant itself supports the observations of

the learned Judge that the Appellant-wife does not appear to

be interested in resumption of cohabitation and the

Respondent-husband herein has clearly proved the ground of

desertion though he has failed to prove the ground of cruelty.


14.     We do not Gnd any inGrmity in view of the conduct of

the Appellant-wife, which clearly reMects that though she was

simultaneously pursuing the proceedings Gled by her under

the DV Act, diligently, she has intentionally avoided to attend

the matrimonial proceedings. Thus, she cannot take beneGt

of her own wrong by contending that, due to negligence of her

Advocate, she could not remain present in the proceedings.

As such the challenge in the Appeal fails and the Appeal Gled

by the Appellant stands dismissed.


15.     In view of the dismissal of the Family Court Appeal,

stay to the impugned judgment granted earlier stands

vacated.




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16.     In view of dismissal of Family Court Appeal, Interim

Application stands disposed of.




 (MANJUSHA DESHPANDE, J.)                      (BHARATI DANGRE, J.)




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