Whether burden of proof is on wife to prove
that husband has condoned her unwarranted desertion?
Family -
Divorce on ground of cruelty - Whether Respondent was entitled for decree of
divorce on ground of cruelty - Held, there was no evidence whatsoever on record
to hold that Respondent had in any manner condoned desertion by Appellant
- Appellant had not placed any
material on record to indicate that Respondent had condoned desertion on part
of Appellant - Appellant was required to show that Respondent had in any manner
condoned unwarranted desertion of Appellant - From evidence on
record, it was clear that after being married parties lived together only for
period of 10 months - They have resided separately since then, now almost for
20 years - Hence material on record was sufficient to hold Respondent entitled
for decree of divorce on ground of desertion and on ground of cruelty.
IN THE HIGH COURT OF JUDICATURE
AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO.308 OF 1998
Smt. Uttara Praveen Thool,
aged 28 years, C/o Manoharrao
Bhavade, resident of Girad,
Tq. Samudrapur, District
Wardha. ---
APPELLANT:
-VERSUS
Praveen S/o Bhanudas Thool, age
37 years, Occupation-Service,
resident of House No.4/44.
Raghuji Nagar, Nagpur. ----
RESPONDENT:
Mrs. V. Thakre Advocate for the appellant.
Mrs. R. S. Sirpurkar Advocate for respondent.
CORAM: B.P.DHARMADHIKARI AND
A.S. CHANDURKAR,JJ.
DATE OF RESERVING THE JUDGMENT:
20TH NOVEMBER 2013.
DATE OF PRONOUNCING THE
JUDGMENT: 6TH JANUARY,2014.
ORAL JUDGMENT: (Per A. S.
Chandurkar, J)
1. The
appellant – wife has preferred the present appeal under Section 19 of the
Family Courts Act 1984 being aggrieved by the judgment dated 8-6-1998 passed by
the learned Judge, Family Court, Nagpur whereby the petition filed by the
respondent – husband for grant of divorce has been allowed. Herein after the
wife will be referred to as the appellant and the husband will be referred to
as the respondent.
2. The
marriage between the parties was solemnized on 2-12-1992. Out of said wedlock,
the appellant gave birth to a son on 27-8-1993. According to the respondent, after
the birth of said child the appellant did not return to her matrimonial home
for no justifiable reason. Hence, on 22-12-1994, the respondent preferred Hindu
Marriage Petition under Section 9 of the Hindu Marriage Act 1955 (hereinafter refer
to as the said Act) bearing No.364 of 1994 for restitution of conjugal rights.
During pendency of said proceedings, the respondent amended his pleadings and
in the alternate sought a decree for divorce on the ground of mental cruelty on
the basis of desertion by the appellant. The parties went to trial and on the
basis of the material on record, the Family Court, Nagpur by judgment dated
8-6-1998 was pleased to allow the petition filed by the respondent and thereby
passed a decree of divorce on the ground of cruelty.
3. Before
considering the challenge to the aforesaid decree, it would be necessary to
note the rival pleadings of the parties and also the other material on record
on the basis of which the impugned decree has been passed. In the petition
filed under Section 9 of the said Act, it was pleaded by the respondent that
from the second month of the marriage itself, the appellant was requesting for
grant of divorce. It was stated that the appellant disliked the idea of a joint
family and hence, the respondent started living separately from his mother and brother.
It is further pleaded that after the birth of their son on 27-8-1993, the
appellant's father took her to their native place and since then for no justifiable
reason, the appellant had deprived the respondent of her company and had failed
to fulfill her obligation as wife. It was further pleaded that on 23-12-1993,
the appellant along with her father, her uncle and few other persons came in a
Jeep to the respondent's place. After some talks, the appellant's father
informed the respondent that it was not possible for the appellant to live with the respondent. Despite
efforts through mediators, the appellant did not return to the matrimonial home
and hence, on 22-12-1994 aforesaid petition seeking restitution of conjugal
rights was filed by the respondent.
4. The
appellant filed her written statement below Exh.14. She denied the averments
made in the petition filed by the respondent. According to the appellant, the
respondent used to treat her cruelly and keep her without food for 2 to 3 days.
The respondent used to beat her and abuse her. It was further pleaded that in
July, 1993, the respondent had called the appellant's mother and had demanded Rs.4,000/-
from her and threatened that if said demand was not met, the mother should take
back her daughter. It is stated that on 17/18-8-1993, despite intervention of Panchas, the respondent did
not listen to them due to which the appellant was forced to return to her
father's home. Despite a message being given about the birth of a child, the respondent
did not accept the sweets that were sent in that regard. The respondent did not
attend the ceremony that was held for naming the child. Ultimately, on
23-12-1993 though the appellant had returned to the respondent's house along
with their child, the appellant was not permitted to enter the house in the
presence of various persons. It was further pleaded that on 2-3-1994, the
appellant had filed proceedings for grant of maintenance under Section 125 of
the Code of Criminal Procedure and with a view to defeat the appellant's right,
the present proceedings for restitution of conjugal rights was filed. The
appellant, therefore, prayed for dismissal of the proceedings.
5. During
pendency of the proceedings before the Family Court, the respondent moved an
application below Exh.16 to amend the petition by deleting the prayer for
restitution of conjugal rights and substituting the same by the prayer for
grant of divorce. The learned Judge of the Family Court by order dated 20-5-1996
disposed of the aforesaid application by directing the respondent to file another
application for seeking divorce as an alternate relief.
On 25-4-1996, the
marriage Counselor submitted his report below Exh.24 in which he opined that
amicable settlement between the parties was not possible.
Subsequently, the
respondent moved another application below Exh.28 for amendment of the aforesaid
petition. By said application, the respondent made another prayer that in case
it was not possible to grant the relief of restitution of conjugal rights, a
decree of divorce on the ground of mental cruelty be passed. The aforesaid
application was filed on 13-6-1996. After considering the reply of the
appellant filed below Exh.32, the learned Judge of the Family Court by order
dated 19-10-1996 allowed the aforesaid application for amendment holding that
the respondent was entitled to make an alternate prayer. Accordingly, the proceedings
as filed stood amended in view of the aforesaid order. In view of addition of
the prayer for grant of divorce, the proceedings were renumbered as Petition
No.A/604/1996. The appellant amended her written statement and opposed the
alternate relief sought by the
respondent.
6. The
respondent examined himself below Exh.60, his brother-in-law – Manishankar
Patil below Exh.69 and another brother-in-law Vitan Borkar below Exh.70. The
appellant examined herself below Exh.74, her father Manohar Shevde below
Exh.83, Shiodas Betal, her maternal uncle and one Ashok Naranje below Exh.85.
On the basis of the aforesaid pleadings and the evidence led by the respective
parties, the learned Judge of the Family Court recorded a finding that the
appellant had treated the respondent with cruelty, that she had withdrawn from
the respondent's society without any reasonable cause and hence, the respondent
was entitled for a decree of divorce on the ground of cruelty. Thus, by
judgment dated 8-6- 1998, the marriage between the parties was dissolved by a
decree of divorce on the ground of cruelty.
7. On
behalf of the appellant – wife, it was urged by her learned Counsel Mrs. V.
Thakre that the Family Court erred in granting the decree for divorce on the
ground of cruelty. It was submitted that though initially the petition was
filed under Section 9 of the said Act for restitution of conjugal rights, no
issue in that regard was framed while deciding the said proceedings. It was
submitted that by seeking restitution of conjugal rights, the respondent had condoned
all earlier incidents that had occurred and hence, on said count, a decree for
divorce could not have been passed. It was further submitted that in proceedings
for restitution of conjugal rights, there could not be a prayer for grant of
divorce on the ground of cruelty as such pleadings were mutually destructive
and prayers were opposed to each other. It
was further submitted that though the statutory period of two years as
contemplated under Section 13 of said Act was not complete when the initial proceedings
were filed, by permitting the petition to be amended for seeking the relief of
divorce, the respondent had got over aforesaid statutory bar. In support of the
aforesaid submission, the learned Counsel for the appellant relied upon the
following judgments.
[1] AIR 2006 Himachal Pradesh 33, Baldev Raj v. Smt. Bimla Sharma.
[2] AIR 212 Rajasthan 8, Reema Bajaj v. Sachin Bajaj.
[3] 2000(4) Mh.L.J. 244, Sanjay Chandrakant Mehta vs. Malaben Sanjay Mehta.
[4] (2005)9 Supreme Court Cases 600, Uma Parekh alias Pinku versus Ajeet
Pareek Alias Govind Pareek and others.
[5] AIR 1988 Supreme Court 839, Tejinder Kaur v. Gurmit Singh.
[6] AIR 1990 Bombay 84, Smt. Smita Dilip Rane v. Dilip Dattaram Rane.
[7] AIR 1989 Supreme Court 1477, Smt. Lata Kamat v. Vilas.
[8] AIR 2009 Andhra Pradesh 54, Lakkaraju Pradma Priya v. Lakkaraju Shyam
Prasad.
[9] AIR 1975, Supreme Court 1534(1) Dr. N. G. Dastane v. Mrs. S. Dastane.
Respondent.
On the other hand,
Mrs. R. Sirpurkar, the learned Counsel appearing for the respondent – husband
supported the impugned judgment. It was submitted that though initially the
respondent had sought restitution of conjugal rights by filing aforesaid
proceedings under Section 9 of the said Act, in view of the stand of the
appellant before the Marriage Counselor that she was not ready to reside with the
respondent and in view of absence of any justifiable cause assigned by the wife
for living separately from her husband, the respondent was compelled to seek
divorce on the ground of cruelty. It was submitted that though various
allegations were made by the appellant in her pleadings as regards ill-treatment
and cruelty on the part of the respondent, the same were not substantiated by leading
any cogent evidence. It was urged that failure to frame the issue as regards
the restitution of conjugal rights did not have the effect of vitiating the
impugned judgment. It was further submitted that the parties were living
separately since August 1993 i.e. after the birth of the child and hence, the
Family Court was justified in passing the decree for divorce. It was further
submitted that though the appellant had pleaded that there was a demand for
dowry, no evidence in that regard was led by the appellant. On the contrary, it
was the appellant who was guilty of deserting the respondent for no justifiable
cause and the same, therefore, entitled the respondent for grant of divorce on account
of desertion resulting in cruelty. It was further urged that there was an
irretrievable breakdown of marriage and both parties having been separated for
almost 20 years, they could not be expected to live together as husband and
wife. By filing an additional affidavit on record, it was submitted that the
respondent had contracted the second marriage on 30th of November 1998. The
learned Counsel for the respondent has relied upon the following judgments in
support of her submissions:
[1] AIR 1992 Madhya Pradesh 105, Smt. Bhavna Adwani v. Manohar Adwani.
[2] [1999 (2) Civil JJ 65] Smt. Shashi Shah V. Kiran Kumar Shah.
[3] 1992 Mh.L.J. 997, Kishorilal Govindram Bihani vs. Dwarkabai
Kishorilal Bihani.
[4] II (1991) DMC 326 Sanyogta Verma versus Vinod Verma.
[5] II(1985) DMC 329, Suren Chandrakant Shah versus Rita Suren Shah.
[6] 2012(7) ALL MR 282, Smt. Bhawna w/o Vijaykumar Sakhare vs. Vijaykumar
S/o Tarachand Sakhare.
[7] [2006(1) Mh.L.J., Durga Prasanna Tripathy vs. Arundhati Tripathy.
[8] II (2006) DMC 107 (DB)Iffath Jamalunnisa versus Mohd. Suleman
Siddiqui.
[9] 2007(3) Mh.L.J. 1, Rishikesh Sharma vs. Saroj Sharma.
[10] (2007) 4 Supreme Court Cases 511, Samar Ghosh Vs. Jaya Ghosh.
[11] (2007) 4 Supreme Court Cases 548, Masooda Parveen Versus Union of
India and others.
She has, therefore, sought dismissal of the
aforesaid appeal.
8. After
hearing the respective Counsel and in view of the material on record, the
following points arise for determination.
(1) Whether failure on the part of the Family Court
to frame the issue pertaining to the claim for restitution of conjugal rights has
resulted in vitiating the judgment?
(2) Whether a decree for divorce could be sought
as a relief in a petition filed under Section 9 of the said Act for restitution
of conjugal rights?
(3) Whether on an amendment permitting a
prayer for grant of divorce in such proceedings being granted, the same relates
back to the date of filing of the proceedings?
(4) Whether decree for divorce needs to be granted
on the ground that there has been an irretrievable breakdown of the marriage?
(5) Whether the respondent is entitled for a decree
of divorce on the ground of cruelty?
(6) What relief?
9. AS
TO POINT NO.1: The respondent had filed the present proceedings under
Section 9 of the said Act seeking restitution of conjugal rights. In paragraph
nos.6,9 & 10 of the petition, he had made various assertions in support of
aforesaid relief. In reply thereto, the appellant had denied the claim as made
by the respondent. This, therefore, gave rise to an issue pertaining to the
claim of the respondent for restitution of conjugal rights. Such issue,
however, was not framed by the learned Judge of the Family Court. It is,
therefore, necessary to consider whether failure to frame said issue has resulted
in vitiating the impugned judgment.
In this regard, the
provisions of Section 99 of the Code of Civil Procedure may be noticed. Under
Section 99, no decree can be reversed or substantially varied on account of any
defect or irregularity in any proceedings not affecting the merits of the case
of the jurisdiction of the Court. Though failure to frame a issue that arises
on the basis of the pleadings of the rival parties would amount to an error
being committed by the Trial Court, that by itself will not be a ground to
reverse the impugned judgment. It is necessary to note here that during
pendency of the proceedings, the respondent had made another prayer seeking
grant of divorce on the ground of desertion. Such prayer was permitted to be
added. The parties thereafter went to trial and contested the proceedings.
While the respondent led evidence for grant of divorce, the appellant led
evidence to demonstrate that the respondent was not entitled for said relief. Therefore,
the prayer for divorce was, in fact, contested as being the main relief sought
in said proceedings. Further, assuming that the issue pertaining to claim for
restitution of conjugal rights was framed and answered against the respondent,
the same would not have resulted in dismissal of petition in view of the other
prayer in the proceedings. Similarly, the nature of evidence for seeking the
relief of restitution of conjugal rights and for seeking divorce on the ground
of desertion would naturally be of a distinct nature. Such evidence could not
be overlapping. In these circumstances, therefore, it is clear that the parties
have contested the proceedings with regard to the prayer for grant of divorce,
mere failure on the part of the learned Judge of the Family Court in framing
the issue as regards restitution of conjugal rights would not have the result
of vitiating the impugned judgment. In any event, the appellant before commencement
of the evidence did not raise any grievance before the Family Court that the
issue pertaining to restitution of conjugal rights had not been framed. Hence,
taking an overall view of the matter, we find that the failure on the part of
the Family Court in framing the issue as regards the claim for restitution of
conjugal rights has not resulted in vitiating the impugned judgment. Point no.1,
therefore, stands answered accordingly.
10. AS TO POINT NO.2: This takes
us to consider the next point as to whether a decree for divorce could be
sought as an alternate relief in a petition filed for restitution of conjugal
rights. While a petition for restitution of conjugal rights is required to be
filed under Section 9 of the said Act, a petition seeking divorce is required
to be filed on the grounds stipulated in Section 13 of the said Act. In the
present case, initially, the proceedings were filed merely for restitution of conjugal
rights. By subsequently amending the aforesaid proceedings, the relief for
grant of divorce on the ground of cruelty was sought to be made. As noted
above, the requirements of Section 9 and Section 13(1)(i-b) of the said Act are
distinct.
According to the
learned Counsel for the appellant, the relief of restitution of conjugal rights
cannot go hand in hand with the relief of divorce. Both reliefs were
diametrically opposite. In support of the aforesaid submission, the learned Counsel
for the appellant relied upon the decision of Himachal Pradesh High Court in Baldeoraj
(Supra). In said judgment, the alleged desertion took place on 19-2-1993.
On 31-3-1993 the husband filed a petition for restitution of conjugal rights
and in the alternate, sought a decree for divorce on the ground of desertion.
In that context, it was observed that as the alleged desertion took place on
19-2-1993 and the petition was filed on 31-3-1993, no petition for divorce on
the ground of desertion could have been entertained as the desertion itself was
for a period of less than two years. In that context, it was observed that the
prayer for grant of divorce itself was not tenable in law. The aforesaid
judgment does not assist the appellant in view of its peculiar facts. In the
present case, the prayer for grant of divorce has been made by way of amendment
on the basis of prior desertion of two years. Hence, the ratio in the aforesaid
case is not applicable to the case in hand.
The learned Counsel
for the appellant has then relied upon the decision of the Hon'ble Apex Court
in the case of Uma Parekh (supra). Perusal of aforesaid decision reveals
that though the proceedings were for restitution of conjugal rights, an
alternate relief was being sought without there being any specific pleadings or
without invoking the powers of the Court under Section 13 of the said Act. The
proceedings therein related to a claim for transfer of the matrimonial case.
The aforesaid decision has no application to the case in hand.
11. On
the other hand, according to the learned Counsel for the respondent, it was permissible
to seek the relief of divorce in a petition for restitution of conjugal rights.
Reliance in this regard was placed on the decision of the Madhya Pradesh High
Court in Bhavna Adwani (supra). In aforesaid decision, it was observed
that there was no legal prohibition under the said Act for filing proceedings
for restitution of conjugal rights or in the alternate, for a decree of divorce
on the ground of desertion. It was held that if at the stage of filing of the
proceedings, the petitioner had sought restitution of conjugal rights and in
the alternate, if the other party continued to refuse to reside together, the
marriage could be dissolved if a case for desertion was made out. The ratio of
the aforesaid decision, therefore, applies to the facts of the present case.
The decision of the
Allahabad High Court in Binod Kumar (Supra) is also pressed into
service. In the said case, the Family Court permitted conversion of proceedings
for restitution of conjugal rights to a petition for divorce. It was Court held
that such course was permissible by taking support of the provisions of Section
23A of the said Act. The present case being one for grant of separate relief
and there being no question of conversion of the proceedings as originally
filed, the aforesaid judgment has no application to the case in hand.
In Kishorilal (supra)
in proceedings for restitution of conjugal rights, an alternate plea for divorce
on the ground of desertion was made. On this being objected in appeal, the
Division Bench of this Court observed that it did not intend to go into the said
technicalities and preferred to decide the actual issue on merits. Hence, said
decision is also of no assistance to the respondent. As held in Bhavna
Adwani (supra), there is no legal bar to make a prayer for grant of divorce
in proceedings for restitution of conjugal rights. Though the petitioner in a
given case may seek restitution of conjugal rights initially, on account of the
conduct of the other side, such petitioner could urge that the other relief of
divorce on the ground of desertion could, however, be granted. If in law
separate proceedings for such a relief could be filed, there is no reason not
to permit a party from seeking such reliefs in the same proceedings. Ultimately,
even for succeeding in the grant of such relief, it would be necessary for such
party to prove the claim made therein.
12. Similarly,
we find that the appellant's objection to amendment and to insertion of an additional
prayer seeking the relief of decree of divorce on account of cruelty is also
unsustainable. A civil suit to certain extent, is bound by the procedural laws
and in province of amendment, by Order 2 Rule 2, Order 6 Rule 17 of CPC and the
Limitation Act,1963. The Hindu Marriage Act,1955 does not prescribe any outer
period to prove the desertion or cruelty, if the cause continues. The said Act
only prohibits filing of premature proceedings and after expiry of said
bar-period, the cause in most of the matrimonial
disputes may be continuous accruing till the normal ties are not restored.
Section 21 only makes CPC applicable as far as possible and not otherwise.
The legislative
intent to attempt to put an end to the matrimonial dispute in one proceeding and
to avoid multiplicity is also perceived in Section 23 and Section 23A of the
said Act. Duty of Court to attempt to reconciliate or divorce by mutual consent
or then an irretrievable breakdown of marriage are some of the features
peculiar to this jurisdiction. Thus, primacy is given to restoration of normal
marital ties and ,if not possible, to grant other appropriate relief of
separation or divorce. There is no principle that husband, having failed to
secure the relief of restitution, can thereafter, never, file the proceedings
for divorce on the available grounds. Non execution of a decree for the
restitution of conjugal rights may also lead to grant of divorce. Hence, the
concept like changing the nature of suit etc. may be inherently foreign to and
not applicable in matrimonial matters. Perspective that due to change in nature
of suit the defense may receive severe set back may not be available at all in
matrimonial jurisdiction. However, not much arguments are advanced on these lines
before us and hence, we leave this aspect open for its due consideration in an
appropriate case. But, on the date on which the respondent husband sought the
leave to amend in present matter, it was also open to him, to institute fresh
proceedings for grant of divorce on the ground of cruelty and continuous
desertion. As institution of the fresh case was not prohibited, he could have very
well sought leave to amend and add an additional relief in the alternative in
very same proceeding.
13. Husband-original
petitioner was attempting to show unwarranted withdrawal from society by his wife
i.e. appellant. Even while amending, he placed his unequivocal desire to have
restitution and hence, qualified the amended prayer clause by employing the words
“if not possible”. The respondent wife in said proceeding can not object to
such prayers as mutually destructive prayers. She can not be heard to say that
she will not cohabit and will not permit the husband to pray for dissolution of
the marriage. She can not turn a Nelson's eye to the forgiveness offered by
husband by filing a case for restitution against her and at the same time,
frown upon the request for putting an end to matrimonial relationship because
of her wrong offered to be condoned. Appellant can not approbate and reprobate at
the same time. We find that the respondent husband has also continued with his
bonafides while seeking the amendment and it is not open to appellant to urge any
prejudice, though factually none is caused to her. The admitted date on which
appellant left the matrimonial house is 23.8.1993 and the parties have not
resided together thereafter. Child is born to the couple on 27.8.1993 and the
proceedings for restitution are instituted on 22.12.1994. After filing of a
written statement by wife turning down his forgiveness and failure before the
Marriage Counselor, leave to amend was sought and granted. In amended plea also,
desire to condone is expressed and divorce is sought, if the condonation does
not evoke required response. On that day, it was open to husband to file fresh
proceedings for divorce on the strength of desertion and cruelty. Hence, by amendment,
the time spent in litigation in seeking response to conditional forgiveness
between 22.12.1994 till October, 1996 is thus sought to be put to use permitted
by law. Appellant wife can not on one hand refuse to cohabit and on other hand,
insist for institution of fresh case on the ground of desertion and cruelty.
Encouraging such a defence will be to put a premium on party at fault and an injustice
to a bonafide spouse who desires to resume cohabitation. It will be defeating
the very scheme of jurisdiction with the Court under the said Act. We therefore
express reservations on relevance/correctness of view reported at AIR 2012 Raj
8 (Reema Bajaj v. Sachin Bajaj) relied upon by the learned counsel for the
appellant which considers Sections 9,13 and 13A of the said Act with Order 6 Rule
17, Order 7 Rule 7 of Civil Procedure Code and holds that an application for
restitution of conjugal rights cannot be converted into application for divorce
by way of amendment since prayer for restitution of conjugal rights and divorce
are diametrically opposite prayers. It is concluded by the learned Single Judge
there that allowing such an amendment results into change in nature of matrimonial
application. Moreover, in present matter, the learned Judge of the Family Court
by order dated 20-5-1996 disposed of the earlier application for amendment
filed by respondent husband by directing him to file another application for
seeking divorce as an alternate relief. This order or liberty has remained unchallenged.
Hence, we hold that
in the proceedings for restitution of conjugal rights under Section 9 of the said
Act, the relief of divorce could be sought by the petitioner. Point No.2 stands
answered accordingly.
14. AS TO POINT NO.3:
According to the learned Counsel for the appellant, the learned Judge of the Family
Court erred in permitting the proceedings to be amended so as to incorporate
the alternate prayer for grant of divorce. According to the learned Counsel in
view of the provisions of Section 13(1) (i-b) of the said Act for constituting
desertion as a ground for divorce, one of the parties has to desert the other
for a continuous period of not less than two years immediately preceding the
presentation of the petition. It was submitted that though the original
proceedings were filed on 22-12-1994, by permitting the respondent to amend the
proceedings by adding the prayer for divorce on the ground of desertion, the
Family Court has permitted the respondent to agitate a ground of divorce that
was not permissible in law to be relied upon when such proceedings were filed.
In other words, there was no desertion for period not less than two years immediately
preceding the filing of the petition i.e. on 22-12-1994.
The argument though
attractive, on further consideration the same does not merit its acceptance. The
case of the respondent is that the appellant had left the matrimonial home in
the last week of December 1993. The respondent thereafter filed application for
amendment on 13-6-1996 and same was allowed on 19-10-1996. By said amendment
the respondent was permitted to raise the ground of divorce on account of
desertion under Section 13(1)(i-b) of the said Act. The effect of allowing the amendment
on 19-10-1996 would be that it would be necessary for the respondent to prove
that for a continuous period of two years prior thereto, the appellant had
deserted the respondent. The amendment, therefore, would necessarily be
required to have taken effect from the date it was allowed i.e. on 19-10-1996
and the same would not relate to the date of filing of the petition. The
learned Judge of the Family Court while considering this issue has observed
that said ground of divorce was available to the respondent for seeking
divorce. The aspect of avoiding multiplicity of proceedings has also been taken
into account while allowing the amendment.
In this regard, the
learned Counsel for the respondent has relied upon a judgment of the learned
Single Judge of this Court in Suren (supra). It was held by the learned
Single Judge that granting such an amendment would not relate back to the date of
filing of the petition and the ground sought to be raised would become
available only from the date of grant of such amendment. In the said case also,
the ground of desertion was added by way of amendment during pendency of the
matrimonial proceedings. It was observed that the ground that was initially not
available could be permitted to be added on the basis of subsequent conduct of
the parties and the same would not relate back to the date of filing of the
petition but, said ground would become available from the date of grant of the
amendment. In our view, the aforesaid observations of the learned Single Judge
are correct and we respectfully affirm the same. The aforesaid decision of the
learned Single Judge has been also followed by the Delhi High Court in Sanyogta
(supra).
Therefore, the
amendment permitting raising of a ground of divorce during pendency of the proceedings
would not relate back to the date of filing of the proceedings, but would
become available from the date it is granted. Hence, Point No.3 stands answered
accordingly.
15. AS TO POINT NO.4: According
to the learned Counsel for the respondent, the present is a case where there
has been an irretrievable breakdown of the marriage between the parties and
hence, on said count itself, a decree for divorce needs to be passed. It is
submitted that the parties have been living separately for last almost 20 years
and considering their conduct, the only inference that can be drawn is that the
marriage between the parties has broken
down. In this regard, the learned Counsel placed reliance upon the decisions of
the Hon'ble Apex Court in Durga (supra)and Rishikesh (supra)as well
as the judgment of Andhra Pradesh High Court in Iffath (supra).
Irretrievable
breakdown of marriage is not a ground envisaged by Section 13 of the said Act
for grant of divorce. Separation of the parties for a long period of time
without any justifiable cause amounting to desertion could be a ground for
passing a decree of divorce under Section 13(1) (i-b) of the said Act. As
observed by the Hon'ble Apex Court in Chetandass Vs. Kamladevi, AIR 2001 SC
1709, it would not be appropriate to apply any submission of “irretrievably
broken marriage” as a strait jacket formula for grant of divorce. Thus, it is
clear that mere submission that the marriage has irretrievably broken down
cannot lead this Court to pass a decree for divorce without examining if any
ground for divorce has been made out or not. Such view is already taken by
Division Bench of this Court in Bajrang Revdekar Vs. Pooja Revdekar AIR 2010
Bom 8. We would, therefore, prefer to examine whether the respondent has
made out a case for divorce on the ground of desertion. Point No.4, therefore,
stands answered accordingly.
16. AS TO POINT NO.5: The
respondent has sought divorce on the ground of desertion in terms of provisions
of Section 13(1)(i-b) of the said Act. The provision contemplates desertion for
a continuous period of not less than two years immediately preceding the presentation
of the petition. The explanation to the expression “desertion” means the desertion
of the petitioner by the other party without reasonable cause and without the
consent or against wish of such party. As held hereinabove, by order dated
19-10-1996, the respondent was permitted to make a prayer for grant of divorce
by allowing the amendment. Hence, the aspect of desertion will have to be
considered for a period commencing two years prior thereto i.e. from 19-10-1994
onwards. In other words, the respondent would be required to prove that the
appellant had deserted him from 19-10-1994 onwards without reasonable cause and
without his consent or against his wish.
Before examining
the aspect of cruelty, it would be necessary to consider the observations of
the Hon’ble Apex Court made in N. G. Dastane (Supra). In the aforesaid
decision, it has been held that firstly the burden to prove the grounds on which
relief is sought in a matrimonial proceeding rests on the petitioner. It has been
further held that normal rule that governs civil proceedings namely that a fact
can be said to be established if it is proved by a preponderance of
probabilities is also applicable in such cases. There is no need to expect the
petitioner to establish a particular ground “beyond reasonable doubt”, but the
Court must be satisfied on a preponderance of probabilities that a case for
relief has been made out. These aspects, therefore, are required to be
considered while examining the matter on merits.
17. Though
the proceedings as initially filed were for restitution of conjugal rights, the
respondent has also sought divorce on the ground of mental cruelty arising out
of the appellant’s conduct and behaviour as well as by the fact of desertion.
In reply to the aforesaid pleadings, the appellant has denied that the
respondent is entitled to claim divorce on aforesaid grounds. In her specific
pleadings, the appellant has stated that she was being illtreated by the respondent.
It has been pleaded that the respondent and his mother used to beat the appellant,
the respondent used to drive out the appellant from the house when it was raining.
There was also a threat given by the respondent of throwing acid on the appellant.
There are also pleadings regarding demand of dowry by the respondent. It is
stated that the respondent had called the mother of the appellant and had
demanded Rs.4,000/-. It is thereafter pleaded that a demand of Rs.4,000/-
towards the expenses of delivery were also made to the appellant’s father. It
is then specifically pleaded that on 23-12-1993 when the appellant’s father and
uncle along with other Panchas had come to the house of the respondent, the
appellant who was accompanying the aforesaid persons was beaten in presence of
said persons.
The respondent in
his evidence has stated that he was ready to take the appellant back, but it
was her father who was not ready to send the appellant back. He has further
deposed that he had issued notices on 28-1-1994 (Exh.61) and 18-2-1994 (Exh.64)
calling upon the appellant to resume cohabitation. In the cross examination, he
has denied suggestions made regarding demand of Rs.4,000/- to the appellant’s
mother. There are, however, no suggestions given to him with regard to the case
of the appellant on the point of illtreatment namely driving her out from the
house in the rains, throwing of acid or beating her in the presence of all on 23-12-1993.
The appellant in the course of her examination-in-chief has referred to the
threat given by the respondent of throwing acid, demanding Rs.4,000/- from the
appellant’s father and also her father being driven out when he had gone to
invite the respondent for naming ceremony. In the cross examination, she has
stated that though she received the notices (Exh 61 & 64) from the
respondent, she did not return to the matrimonial house though the said notices
were not for divorce. She has further admitted that she had not sent any letter
to her parents informing them about ill-treatment or that she had requested them
to take her back. She has stated that she was employed in the year 1996 as a teacher
and even after marriage she had continued using her maiden name in the service
record.
The appellant’s
father was examined and in his cross examination he admitted that after the
marriage, his daughter lived with the respondent only for 10 months. He further
admitted that he did not lodge any report regarding illtreatment of his
daughter or regarding demanding of dowry. Similarly, Shiodas (Exh.84) and Ashok
(Exh.85) who had accompanied the appellant’s father during talks to the respondent
were also examined. In their examination-in-chief, however, there is no reference
to the appellant being beaten in the presence of Panchas on 23-12-1993.
18. In
so far as the aspect of illtreatment of the appellant by the respondent is
concerned except the bare statement of the appellant, there is no material on
record to come to the conclusion that the appellant was, in fact, ill-treated
by the respondent. Though it was alleged that the appellant was driven out of the
matrimonial home and she was required to go out when it was raining, no neighbour
has been examined to support aforesaid plea. In so far as the allegation that
on 23-12-1993, the appellant was threatened and beaten in presence of panchas,
the two witnesses examined by the appellant namely Shiodas (Exh.84) and Ashok (Exh.85)
do not refer to aforesaid threats or beating of the appellant in their deposition.
Even the appellant’s father Manohar (Exh.83) does not say anything in this
regard. In fact, no suggestions are given to the respondent that on said date, he
threatened or ill treated the appellant in presence of the Panchas. Therefore, there
is no material on record to hold that the respondent had ill treated or beaten the
appellant on 23-12-1993. The appellant’s father in his cross examination has
categorically admitted that he did not lodge any report regarding either demand
of dowry or ill-treatment at the hands of the respondent. It may be noted that
it was the case of the appellant that she had left the matrimonial home on
account of the illtreatment at the hands of the respondent.
In so far as the
demand of the amount of Rs.4000/- by the respondent is concerned, the appellant
has pleaded that in July 1993, the respondent had called the mother of the appellant
and had demanded Rs.4000/-. It is further pleaded that similarly demand was
thereafter made from the appellant’s father as expenses for delivery. The
mother of the appellant to whom the first demand of Rs.4000/- was made has not
been examined. Except the statement of the appellant’s father, there is no other
material on record to hold that there was any such demand made by the
respondent especially when the appellant’s father did not lodge any report in
that regard. Hence, except bare statements on the part of the appellant and her
father, the same having been denied by the respondent in his cross examination,
there is no other material on record to hold that such demand of Rs.4000/- was
made by the respondent. Thus, it has to be held that the appellant has failed
to prove the plea of illtreatment by the respondent or the demand of an amount of
Rs.4000/- by the respondent. The Division Bench of this Court in Bhawna (supra)
has held that making false and unsubstantiated charges against other party as
regards demand of dowry would amount to cruelty.
19. Having held that the appellant had failed
to prove either illtreatment or demand of the amount of Rs.4000/- by the respondent,
it would now be necessary to consider whether the appellant had deserted the
respondent without reasonable cause and without his consent or against his wish
in terms of the Explanation to the provisions of Section 13(1)(i-b) of said
Act. The reasons assigned by the appellant for leaving matrimonial home are on
account of the illtreatment and demand of Rs.4000/- by the respondent. Other
than the aforesaid two reasons, no other reason has been assigned for leaving
matrimonial home. The respondent in his cross examination has stated that on
the day the appellant left the matrimonial home, they were living separately
from his mother and brother and hence, when he returned home, he did not find
anybody at home. It is also necessary to note that the respondent by sending
two notices (Exh.61 & Exh.64) had called upon the appellant to rejoin his
company. There was, however, no positive response from the appellant.
Thereafter, during pendency of the proceedings when the parties were referred
to the Marriage Counselor, the appellant stated before him that she was not
desirous of returning to the matrimonial home and that she would do so only
after her son completed the age of 18 years. The appellant, therefore, has
failed to place any justifiable reason on record or to assign any reasonable
cause to desert the respondent. The reasons given for leaving the matrimonial
home have not been proved by the appellant and hence, it has to be held that
the appellant has deserted the respondent “without reasonable cause” in terms
of the Explanation to Section 13(1)(i-b) of said Act. It is, therefore, clear
that though the appellant left the matrimonial home before the birth of her son
on 27-8-1993, as stated above,considering the desertion for the period from
19-10-1994 onwards, it is clear that the appellant has left the matrimonial
home and deserted the respondent “without reasonable cause”.
20. It is not in dispute that appellant did not
agree to resume cohabitation even on trial basis and expressed that she would
consider going to her husband's house only after her son became major i.e. on
or after 27.8.2011. She has left the matrimonial house behind her husband on
23.8.1993 and hence, burden was upon her to bring on record the justification
therefor. Not only this, if she had any desire to resume matrimonial
relationship, steps taken by her in that direction should have been pleaded and
proved. Her readiness to cohabit pleaded in written statement is subject to the
undertaking of husband and circumstances justifying that need are not proved by
her. Effort to reunite alleged by her on 23.12.1993 does not substantiate any
need of undertaking and that effort also is not brought on record with proper
evidence. On the contrary, it militates with her other plea of demand of money
and cruelty which again is not proved. Why she could not agree to temporary
joint stay on trial basis or required time till her son attained 18 years of
age even to think of returning to her matrimonial house or wanted an
unreasonably long time to even consider its pros and cons is not clarified. She
appears not interested in cohabitation sand also in dissolving the marriage. It
is obvious that this is nothing but cruelty as also desertion. Even before the
Family Court or then before this Court, she never expressed her design to
revive the relationship. She is only opposing every move of her husband without
any rhyme or reason. Marriage in question has lost its
propriety and there is no point in continuing
the relationship. It will, therefore, have to be held that the appellant having
failed to assign any reasonable cause for desertion, the respondent is entitled
for a decree of divorce on the ground of cruelty on account of said desertion.
21. At this stage, it is necessary to refer to
the contention raised by the appellant regarding the aspect of condonation of
acts by the respondent. In view of the provisions of Section 23(1)(b) of the
said Act, the Court is required to be satisfied that the party seeking divorce on the ground of cruelty has not in
any manner condoned the cruelty. The expression “or condoned the act or acts
complained of” as appearing in Section 23(1)(b) of the said Act is required to
be considered.
Law on the point of condonation is laid down
by the Division Bench of this Court in 2000 (1) Mh.L.J. 429 (Harvinder Singh
Marwah Vs. Charanjit Kaur). There the cruelty was found established in
Divorce Petition filed by husband on the ground of cruelty. Till the respondent
wife left the marital home, they were co-habiting together and were having
physical relations. Question involved was whether the order of learned
Principal Judge dismissing the petition on the ground of condonation of cruelty
needed to be set aside? While answering the question in affirmative, this Court
held in para 11 that "For two young persons to have physical relations is
quite common. But that itself would not lead to an inference of condonation.
Even that case is not put forth by the other side. She has left the marital
home since 24.4.1992 and has stayed away since then."
In Ravi Kumar v.
Julmidevi, (2010) 4 SCC 476, at page 478 Hon. Apex Court has observed that:
“9. Several questions cropped up in the course
of hearing before the High Court. One of them being whether in view of filing
of a proceeding for restitution of conjugal rights, the appellant had condoned
all alleged prior acts of cruelty of the wife.
10. The High Court
after considering some decisions came to a finding that by filing a petition
under Section 9 of the Act, the appellant had condoned the earlier alleged acts
of cruelty of the respondent wife. Condonation is basically a question of
fact. This Court finds that the reasoning of the High Court on condonation in
the facts of this case is correct.”
In Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558,
at page 568, Hon. Apex Court observed in para 42 that “ In England, a view was
at one time taken that the petitioner in a matrimonial petition must establish
his case beyond a reasonable doubt but in Blyth v. Blyth5 (All ER
at p. 536 H-I) the House of Lords held by a majority that so far as the grounds
of divorce or the bars to divorce like connivance or condonation are concerned,
“the case, like any civil case, may be proved by a preponderance of probability”.
In N.G. Dastane (Dr) (supra), in para 55 to 58, Hon. Apex Court
observes:-
“55. Condonation means forgiveness of the matrimonial offence and the
restoration of offending spouse to the same position as he or she occupied before
the offence was committed. To constitute condonation there must be,
therefore, two things: forgiveness and restoration. The evidence of condonation
in this case is, in our opinion, as strong and satisfactory as the evidence of
cruelty. But that evidence does not consist in the mere fact that the spouses
continued to share a common home during or for some time after the spell of
cruelty. Cruelty, generally, does not consist of a single, isolated act but
consists in most cases of a series of acts spread over a period of time. Law
does not require that at the first appearance of a cruel act, the other spouse
must leave the matrimonial home lest the continued cohabitation be construed as
condonation. Such a construction will hinder reconciliation and thereby
frustrate the benign purpose of marriage laws.
56. The evidence of condonation consists here
in the fact that the spouses led a normal sexual life despite the respondent’s
acts of cruelty. This is not a case where the spouses, after separation, indulged
in a stray act of sexual intercourse, in which case the necessary intent to
forgive and restore may be said to be lacking. Such stray acts may bear
more than one explanation. But if during cohabitation the spouses, uninfluenced
by the conduct of the offending spouse, lead a life of intimacy which
characterises normal matrimonial relationship, the intent to forgive and
restore the offending spouse to the original status may reasonably be inferred.
There is then no scope for imagining that the conception of the child could be
the result of a single act of sexual intercourse and that such an act could be
a stark animal act unaccompanied by the nobler graces of marital life. One
might then as well imagine that the sexual act was undertaken just in order to
kill boredom or even in a spirit of revenge. Such speculation is impermissible.
Sex plays an important role in marital life and cannot be separated from other
factors which lend to matrimony a sense of fruition and fulfillment. Therefore,
evidence showing that the spouses led a normal sexual life even after a series
of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty.
Intercourse, of course, is not a necessary ingredient of condonation because
there may be evidence otherwise to show that the offending spouse has been
forgiven and has been received back into the position previously occupied in
the home. But intercourse in circumstances as obtain here would raise a
strong inference of condonation with its dual requirement, forgiveness and
restoration. That inference stands uncontradicted, the appellant not having
explained the circumstances in which he came to lead and live a normal sexual
life with the respondent, even after a series of acts of cruelty on her part.
57. But condonation of a matrimonial offence
is not to be likened to a full Presidential pardon under Article 72 of the
Constitution which,once granted, wipes out the guilt beyond the possibility of
revival. Condonation is always subject to the implied condition that the
offending spouse will not commit a fresh matrimonial offence, either of the
same variety as the one condoned or of any other variety. “No matrimonial
offence is erased by condonation. It is obscured but not obliterated”. Since
the condition of .forgiveness is that no further matrimonial offence shall
occur, it is not necessary that the fresh offence should be ejusdem generis
with the original offence. Condoned cruelty can therefore be revived, say, by
desertion or adultery.
58. Section 23(1)(b) of the Act, it may be urged,
speaks of condonation but not of its revival and therefore the English doctrine
of revival should not be imported into matters arising under the Act. Apparently,
this argument may seem to receive some support from me circumstance that under
the English law, until the passing of the Divorce Reform Act, 1969 which while
abolishing the traditional bars to relief introduces defences in the nature of
bars, at least one matrimonial offence, namely, adultery could not be revived
if once condoned. But a closer examination of such an argument would reveal its
weakness. The doctrine of condonation was established by the old ecclesiastical
courts in Great Britain and was adopted by the English courts from the canon
law. “Condonation” is a technical word which means and implies a conditional
waiver of the right of the injured spouse to take matrimonial proceedings. It
is not “forgiveness” as commonly understood. In England condoned adultery
could not be revived because of the express provision contained in Section 3 of
the Matrimonial Causes Act, 1963 which was later incorporated into Section
42(3) of the Matrimonial Causes Act, 1965. In the absence of any such provision
in the Act governing the charge of cruelty, the word “condonation” must receive
the meaning which it has borne for centuries in the world of law. “Condonation”
under Section 23(1)(b) therefore means conditional forgiveness, the implied
condition being that no further matrimonial offence shall be committed.”
The Division Bench of the Delhi High Court in
Mat. App. (FC) No. 3/2013 and CM 7056 and 7057/2013-Pushpa Rajai Vs. Jai Prakash
Lalwani recently accepted the same meaning by following N. G. Dastane (supra). In
AIR 2013 Chh 88 (Smt. Mamta Namdeo Vs. Ghanshyam Bihari Namdeo), the
Chhattisgarh High Court also adopted the same view.
22. Thus, to constitute condonation in terms
of Section 23(1)(b) of the said Act, there must be forgiveness and restoration.
The question, however, is whether for constituting condonation, the conduct of only
one of the parties is to be considered or whether the conduct of both parties
is to be taken into account. In other words,whether the unilateral act of one
of the parties is to be considered or whether the bilateral acts of both
parties are to be considered. If for constituting condonation, there must be
forgiveness and restoration, it is obvious that bilateral acts of both parties
will be required to be taken into account while considering the aspect of
condonation. Forgiveness and restoration cannot be unilateral and for it to be
effective and fruitful, it has to be bilateral. One party to the marital tie
may be ready to forgive and restore the same. One of the modes could be by
filing proceedings for restitution of conjugal rights. The other party may,
however, not be ready to forgive and restore said tie. The proceedings filed by
one party for restitution could be opposed by the other by refusing to rejoin
the marital tie. The same would not result in condonation in as much as there
would be no consensus between the parties for the purposes of forgiveness and
restoration. It would remain onesided. Hence, the aspect of condonation will
have to be adjudicated after taking into account the bilateral acts of both parties.
The offer made by one party and the reciprocal conduct of the other will have
to be viewed together while determining codonation in terms of Section 23(1)(b)
of the said Act.
What we can gather
from the above precedents is that condonation implies knowledge to the husband
of being wronged by wife, conscious election by him not to exercise the legal
right flowing therefrom,to forgive the wife conditionally and the same
resulting in the resumption of normal relationship between the couple. Thus, it
is resumption of normal marital ties with mutual understanding which assumes
significance. In matter like one at hand, where the desertion continues without
even a day's break, the conditional forgiveness offered by the husband is not reciprocated
by the respondent wife. On the contrary, she refuses to take advantage of the
opportunity available and persists in desertion. As such, condonation which technically
is a bilateral act or decision, never occurred and insistence upon the said aspect
by the appellant wife is misconceived and ill advised.
In Baldev Raj (supra),
the parties were married on 7-8-1998. After about seven months, the wife left
the matrimonial home, but returned back in May 1989. Thereafter, she again left
her husband after a week and later on rejoined him. On 19-2-1993, she again
deserted him. The husband made efforts from 20-2-1993 to 28-2-1993 to bring her
back, but was not successful. On 23-3-1993, the husband went to his wife’s
place to get her back but was not unsuccessful. He, therefore, filed proceedings
for restitution of conjugal rights on 31-3-1993 with an alternate prayer for
dissolving the marriage by a decree of divorce. In that context, relying upon
the Division Bench judgment of said High Court in Nirmala Devi Vs. Ved
Prakash AIR 1993 HP 1 , it was held in Baldev Raj (supra) that
filing of petition for restitution of conjugal rights implied condonation of
all earlier acts of cruelty. Similar view has been taken in Reema Bajaj (supra),
where amendment was sought to convert proceedings for restitution of conjugal
rights into proceedings for divorce on the ground of desertion. The learned
Single Judge of the Rajasthan High Court observed that filing of proceedings
for restitution of conjugal rights amounted to condonation or forgiveness of
the alleged act of cruelty till the date of filing of the amendment application.
With utmost respect, we are unable to agree with aforesaid views. The
unilateral act of filing petition for restitution of conjugal rights ignoring
the response of the other side by itself would not amount to condonation for
the purposes of Section 23(1)(b) of the said Act. When satisfaction in terms of
said provision is to be arrived at by the Court, the approach and response of
both parties will have to be taken into account.
23. In the present case, in view of filing of
the petition for restitution of conjugal rights by the respondent, the appellant
has submitted that the same amounts to the respondent condoning the alleged act
of desertion and cruelty. In the proceedings for restitution of conjugal
rights, the appellant filed her written statement and opposed the relief sought
by the respondent. The offer made by the respondent for restituting conjugal rights
by filing petition under Section 9 of the said Act was not accepted by the appellant
who replied that the respondent was not entitled for said relief. Prior thereto,
the response of the appellant to the two notices sent by respondent (Exh.61 &
64) was also not positive. In her crossexamination, the appellant stated that
it was suggested to the parties to live together on trial basis and inform the Court.
She has also admitted that she had stated before the Marriage Counsellor that she
would consider going back to her husband after her son would complete the age
of 18 years. Thus, neither the pleadings of the parties nor the evidence of the
appellant indicate any bilateral act or conduct so as to record a finding that there
was forgiveness and restoration between the parties and the same amounted to
condonation of the act of desertion on the part of the appellant.
24. Further, the appellant has opposed the petition
for divorce on the ground of cruelty. It was, therefore, necessary for her to
have pleaded and proved the fact that the respondent had in any manner condoned
the alleged cruelty. There is, however, no evidence whatsoever on record to
hold that the respondent had in any manner condoned the desertion by the
appellant. The appellant has not placed any material on record to indicate that
the respondent had condoned the aforesaid desertion on the part of the
appellant. As stated herein above, the ground of cruelty on account of
desertion having been permitted to be raised on 19-10-1996, the act of condoning
such desertion should be from 19-10-1994 onwards on the part of the respondent.
In other words, the appellant was required to show that after 19-10-1994, the
respondent had in any manner condoned the unwarranted desertion of the
appellant. However,there is hardly any material on record to come to such a
conclusion. We, therefore, record our satisfaction in terms of Section 23(1)(b)
of the said Act that the respondent has not in any manner condoned the
desertion on the part of the appellant from 19-10-1994 onwards in any manner whatsoever.
25. In Samar Ghosh (Supra) relied upon by
the learned Counsel for the respondent,it has been observed in para 101 that
where there has been a long period of continuous separation, it could be fairly
concluded that the matrimonial bond is beyond repair. In such situation by
refusing to sever that tie, the same could lead to mental cruelty. From the
evidence on record, it is clear that after being married on 2-12-1992 the
parties lived together only for a period of 10 months. They have resided separately
since then, now almost for 20 years. We have found that the material on record
is sufficient to hold the respondent entitled for a decree of divorce on the
ground of desertion. The learned Judge of the Family Court has found that the
appellant had failed to prove various allegations made by her which were
reasons for deserting the respondent. We find that the aforesaid conclusion has
been arrived at on the basis of the material on record and we find no reason
whatsoever to strike a discordant note. Accordingly, we affirm the conclusion arrived
at by the Family Court and hold the respondent entitled for a decree of divorce.
26. The last grievance on behalf of the
appellant namely re-marriage by the respondent during pendency of the appellant
is now required to be noticed. According to the learned Counsel for the
appellant,though the present appeal was pending, the respondent remarried on
30-11-1998.According to the learned Counsel, the aforesaid conduct of the
respondent was required to be taken note of. Relying upon the decisions of the
Hon’ble Apex Court in Tejinder Kaur (Supra), Lata Kamat (Supra), and
of the Division Bench of this Court in Smita Rane (Supra), it was
submitted that the appeal preferred by the appellant would not be rendered
infructuous. On the other hand, it was submitted by the learned Counsel for the
respondent that while admitting the present appeal, Rule on stay was issued by
this Court on 3-8-1998. Said Rule on stay came to be discharged after hearing
both sides on 11-9-1998. It was submitted that it was open for the appellant to
have sought review of aforesaid order, but the same was not done. It was,
therefore, submitted that in these circumstances, as interim stay was notgranted
during pendency of the appeal, the respondent had remarried on 30-11-1998.The
Hon’ble Apex Court in Tejinder Kaur (Supra), Lata Kamat (Supra)
as well as this Court in Smita Rane (Supra) have held that the appeal as
filed under Section 28 of said Act would not become infructuous only on account
of the remarriage during pendency of said appeal. In view of the aforesaid law
as laid down, we have considered the challenge to the decree passed by the
Family Court on merits and we have not treated the appeal as filed to have
become infructuous. We have thereafter found that the decree passed by the
Family Court granting divorce to the respondent is legal and proper. We,
accordingly, answer point No.5 as above and hold that the respondent is
entitled for a decree of divorce on the ground of cruelty.
27. In view of our aforesaid findings, we find
no merit in the challenge to the decree passed by the Family Court. Both the parties
have filed affidavits on record on the aspect of amount of maintenance. From the
material on record, it is clear that the appellant was serving as an Anganwadi Sevika
at Samudrapur and is getting Rs.4000/- per month. The son born on 27-8-1993 has
now attained the age of majority. The respondent in his affidavit has stated
that he is paying an amount of Rs.1500/- towards maintenance to the appellant
and her son in addition to an amount of Rs.896/- that is being deducted from
his salary. This arrangement is in force since 8-12-2003 as per orders passed on
the pursis signed by both sides. Said arrangement can, therefore, be directed
to be continued till it is modified in accordance with law. Hence, while dismissing
the appeal, it is directed that the arrangement as jointly arrived at by the
parties and as ordered by this Court on 8-12-2003 shall continue to operate
till it is modified in accordance with law. Point No.6 stands answered
accordingly.
28. In the result, the following order is
passed:
[i] The appeal challenging the judgment dated
8-6-1998 passed by the Family Court, Nagpur in Petition No.A-604/1996 stands dismissed
with parties left to bear their own costs.
[ii] The respondent shall continue to pay a
sum of Rs.1500/- per month
in addition to the deduction of Rs.896/- per
month from his salary to the appellant in terms of joint pursis dated 8-12-2003
till said arrangement is duly modified in accordance with law.
[iii] Appeal stands disposed of accordingly.
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