Decided on August 23,2017

Nutan Shankar Moily Appellant
Shankar Ramanna Moily Respondents


SHALINI PHANSALKARJOSHI, J. - (1.) This appeal, preferred by Original Respondentwife takes an exception to the judgment and order dated 23 rd September, 2015 passed by Family Court No.3 Mumbai at Bandra, thereby dissolving the marriage of Appellant and Respondent by decree of divorce under Section 13(1A) (ii) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act").
(2.) Brief facts of the appeal can be stated as follows; Appellant and Respondent were married on 22nd August, 1996 at Powai, as per the rites and custom of Hindu Religion. After the marriage, they cohabited together for some years in USA where Respondent was and is serving since prior to their marriage. However, some years after the marriage, due to differences of opinion and incompatibility, Respondent had filed a petition for divorce bearing No.747 of 2006 under Section 13(1)(ia) & (ib) of the Act on ground of cruelty and desertion. In the said petition, Appellant had preferred counter claim for Restitution of conjugal rights under Section 9 of the Act. By judgment and decree dated 15 th September, 2009, the petition for divorce filed by Respondenthusband came to be dismissed. Whereas counter claim of Appellantwife for Restitution of conjugal rights was allowed. As per the order passed therein, Respondent husband was directed to join company of Appellantwife.
(3.) As per the case of the Respondent, after the passing of this decree for Restitution of conjugal rights, he made genuine efforts of convincing the Appellant for resuming cohabitation with him. However all along she refused. He wrote letters to her from time to time and requested her to set up a mechanism for preparing documents like her Visa for her entry and stay in USA, where he is residing since last more than 10 years which was since prior to their marriage and also after the marriage. Appellant however, despite his various efforts did not resume the cohabitation, though the decree for Restitution of conjugal rights was in her favour. She did not show any interest or inclination by seeking execution of the said decree, though she filed execution proceedings for recovery of maintenance. Thus, ultimately being convinced that the Appellant is no more interested in resuming cohabitation with him, Respondent filed the petition No.A 1010 of 2012 before the Family Court Mumbai at Bandra seeking dissolution of marriage on ground of non resumption of cohabitation for a period of more than one year, even after the passing of decree of Restitution of conjugal rights.;

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