Bombay High Court
Saroj W/O Maical @ Babasaheb Patole vs Maical @ Babasaheb Sadanana Patole on 7 December, 1999
Equivalent citations: 2000(4)BOMCR532, 2000(2)MHLJ512
Bench: S.B. Mhase, B.H. Marlapalle
ORDER V.K. Barde, J.
1. This is reference under section 17 of the Indian Divorce Act, 1869 (For short, hereinafter referred to as "the Act"). The learned Judge of the Family Court, Aurangabad, has passed the decree for dissolution of marriage under section 10 of the Act, in Petition A. 182/97.
2. The petitioner, Smt. Saroj, filed the petition for dissolution of marriage on the ground of ill-treatment and desertion. She also contended that the respondent Maical @ Babasaheb was already married with a woman prior to his marriage with the petitioner and on that ground also, dissolution of marriage was prayed.
3. The respondent Maical, by his written statement, denied all the allegations.
4. The learned Judge of the Family Court recorded the evidence of both sides and then came to the conclusion that the petitioner failed to prove that the respondent was already married before his marriage with the petitioner. However, the learned Judge held that the petitioner proved that the petitioner was being treated with cruelty by the respondent and, therefore, the decree nisi is passed.
5. The petitioner and respondent both are served. Both were present before us at the time of hearing of the reference. Considering the circumstance of the case, Shri M.V. Deshpande, learned Advocate is appointed as amicus curiae for the petitioner.
6. The first important question to be considered is whether the petitioner can claim the decree for divorce only on the ground of cruelty or desertion when there being no allegation that the respondent has committed adultery. In this respect, the learned Judge of the Family Court has relied upon the ruling of the Full Bench, of this Court, in the matter between Pragati Varghese v. Cyril George Varghese, (F.B.). In the said matter, constitutional validity of section 10 of the Act was considered by the Full Bench and it is observed in para 43 (Full Bench of Kerala High Court A.I.R. 1995 Ker. 525 on Bom.C.R. page 575) :
"Section 10 being the only provision allowing dissolution of marriage among Christians governed by the Act, striking down of the provisions as a whole should be avoided as far as possible. As such, we should see whether the offending portion to the impugned provisions are sever-able and if so whether the (remaining provisions) can be allowed to remain as provisions valid in law. Having thus considered the rival contentions, we find that the underlined portions are the offending portions which makes the impugned provisions ultra vires and if such portions are severed and quashed as ultra vires, the remaining portions of the provisions can validly stand along with the other provisions in section 10. So modified section 10 would permit Christian wives to seek dissolution of their marriages on the grounds of adultery, desertion and cruelty also without the necessity of proving adultery. In that event, the remaining provisions will be more or less similar to the provisions contained in all other enactments, in force regulating dissolution of marriages among people belonging to other religions and also the Special Marriage Act. If such a course is adopted, the provisions can be made constitutionally valid and retainable in the modified form to serve the purpose for which it was enacted in a better way avoiding the striking down of the entire provision which would have created a hiatus as feared by the Law Commission of India in its 90th report."
It is further held by the Full Bench of this Court, in para 46 (Full Bench of Kerala High Court A.I.R. 1995 Ker. 525 on Bom.C.R. page 577):
"For all the above reasons we hold that the offending portions of the provisions as already indicated are severable and they are liable to be quashed as ultra vires. We would further hold that the remaining portions of the provisions can remain as valid provisions allowing dissolution of marriage on grounds of adultery simpliciter and desertion and/or cruelty independent of adultery. Adoption of such a course, in our view, would help to avoid striking down of the entire provisions in section 10 of the Act and to grant necessary reliefs to the petitioners and similarly situated Christian wives seeking dissolution of their marriage which has for all intents and purposes ceased to exist in reality."
7. In view of the above decision of this Court, it is now possible for a Christian wife to claim divorce under the Act, on independent ground of adultery, cruelty and/or desertion. Therefore, in the instant petition, where there is no allegation that the respondent has committed adultery, but there is only allegation of cruelty, the petition was maintainable.
8. Now, coming to the question of fact, it is noticed that the petitioner has examined herself and two witnesses in support of her case. She has also filed certain documents on record. From her evidence and evidence of her witnesses, it is noticed that the respondent is addicted to liquor and under the influence of liquor, he was beating and ill treating the petitioner. Not only that he was even causing trouble to the parents of the petitioner. The documents filed on record show that various applications were made to the Police regarding the bad behaviour of the respondent while under influence of liquor. The evidence of the petitioner, therefore, shows that she was being treated with cruelty by the respondent.
9. The respondent has examined himself and he has also examined one witness in support of his case. However, the evidence of the respondent is not convincing to persuade us that he did not treat the petitioner with cruelty.
10. The respondent has admitted in his written say, that he had once slapped the petitioner when there was a quarrel between him and the petitioner. In his cross examination, he has admitted that he had slapped the petitioner.
11. The deposition of Pradip, witness of the respondent, makes the case of the petitioner convincing because he states that there was quarrel between husband and wife and he had gone to mediate at the house of petitioner's mother. The evidence clearly shows that the husband and wife were not able to pull on together under the same roof.
12. The contention of the respondent, in the written statement, is that the parents of the petitioner wanted to grab his property and, therefore, they were not allowing him to have peaceful married life with his wife. However, in his deposition, he has not made out any such case and we do not find any substance in the contention that the parents of the petitioner were instigating her and were not allowing her and the respondent to cohabit peacefully.
13. The learned Judge of the Family Court had the occasion to see the witnesses while they were giving the evidence, and the learned Judge has believed the evidence of the petitioner and her witnesses. We do not find any reason to express any different view than the view taken by the learned Judge of Family Court. The petitioner has proved that she was being treated with cruelty by the respondent and it has become impossible for her to continue cohabitation with the respondent.
14. So far as the other allegation that the respondent was already married with another woman, when his marriage with the petitioner took place, the learned Judge of the Family Court has correctly observed that the petitioner has failed to make out that case. However, on the ground of cruelty, the petitioner is entitled to get a decree for divorce.
15. Hence, the reference is accepted. The decree for dissolution of marriage passed under section 10 of the Indian Divorce Act, 1869, by the learned Judge of the Family Court, Aurangabad, in Petition A-1 82/97, is confirmed. In the given circumstances, no order as to costs.
16. Order accordingly.