Bombay High Court
Pestonji Kekobad Bharucha vs Aloo (Mrs.) W/O. Pestonji on 11 March, 1983
Equivalent citations: AIR 1984 BOMBAY 75, (1983) 2 BOM CR 312, 1983 MATLR 386, (1983) 1 DMC 468
JUDGMENT R.D. Tulpule, J.
1. This is an appeal against the judgment and order passed by the District Judge and Judge of the Parsi Matrimonial Court, Pune in Matrimonial Suit No. 10 of 1966. This is husband's appeal against whom the suit was filed by the wife-respondent for a decree for a divorce and/or for judicial separation under section 34 of the Parsi Marriage and Divorce Act, 1936 (hereinabove referred to as the 'Parsi Marriage Act").
2. The complaint of the plaintiff-wife was that the defendant was neglecting his wife and also their children. That he was good for nothing. That he even sold the property and spent a large amount for his luxury and vices. The defendant used to borrow and would not pay his debts which had to be paid by her and she had to work in order to support the family. Nevertheless the husband started to extract moneys from her and even also from her mother by threats and other means. There used to be quarrels and threats to the wife and children and numerous acts of cruelty. The applicant wife got herself employed in Dancing school at Rajkot to escape from the husband but the husband also came to high-school and there also he seems to have threatened and beat her. He was ultimately refused to allow to stay with the plaintiff by the management, where the plaintiff-wife was serving. That in 1966 he visited Rajkot. He had abused her, beaten severely and also threatened that he would see when the wife came to Pune.
3. The defendant-husband denied all these allegations and further he alleged that the wife had illicit and intimate relations with Major Saxena.
4. The suit was filed in the year 1966 and had a chequered career. The parties approached this Court on two occasions earlier. Ultimately, issues were framed on 21st June, 1973, but trial of the suit was commenced only much later. Ultimately, on 5th November, 1979 regularly earlier part of the evidence has been recorded, which was challenged by the plaintiff. After considerable delay the suit was heard and by his order dated 10th December, 1979 the learned District Judge and Judge of the Parsi Matrimonial Court allowed the petition and granted decree for judicial separation in favour of the wife. Aggrieved by that judgement and order the husband has preferred this appeal.
5. The appeal under the Parsi Marriage Act is provided under section 47 and that section requires certain contention which were raised before me seeking to bring them within the provisions It was urged that the order passed by the Court should be set aside. Relevant part of that section reads thus :---
"47. An appeal shall lie in the High Court from---
(a) the decision of any Court established under this Act, whether a Chief Matrimonial Court or District Matrimonial Court on the ground of the decision being contrary to some law or usage having the force of law, or of a substantial error or defect in the procedure or investigation of the case which may have produced error or defect in the decision of the case upon the merits and on other grounds......"
6. Two contentions were urged on behalf of the appellant. The first contention was that the decision was contrary to law inasmuch as the decision of the delegates was only of five delegates and not seven as is required under section 20. The second contention which was urged was relating to the frame of issue No. 6 and the absence of summing up by the learned District Judge before the delegates returned their verdict. This failure to place on record the summation of the learned District Judge which was a defect of the procedure, according to the learned Counsel for the appellant has produced an error or defect in the decision on merits. As pointed out under section 47(a) of the Parsi Marriage Act an appeal can be considered only on these grounds and no other viz. that the decision was contrary to some law or usage having the force of law or secondly there was some error or defect in the procedure or investigation of the case, which was responsible for a defective and erroneous decision. The ambit of the appeal, therefore, is only to that extent and no other. It has, therefore, to be found whether there was anything which is contrary to law in the decision and secondly whether there was any error or defect in the procedure which produced a defective and erroneous decision. It will be seen that the scope of the appeal thus being limited and in view of the provisions of section 46 of the said Act, unless the appellant succeeds in showing that there was any error or defect in the procedure adopted, the finding reached by the delegates cannot be reconsidered.
7. Before proceeding to consider the first contention advanced by the learned Counsel, it would be advisable to refer to section 46 which demarcates the sphere of the Parsi Matrimonial Court. The Parsi Matrimonial Court consists of a Judge at place other than a presidency-town, which is the principal Court of original civil jurisdiction viz. the District Judge of that district aided by seven delegates. Their functions and duties are however regulated by section 46. Section 46 is as under :---
"46. In suits under this Act all questions of law and procedure shall be determined by the Presiding Judge; but the decision on the facts shall be the decision of the majority of the delegates before whom the case is tried."
It will be thus seen that questions of law and procedure have to be determined by the Judge, while the decision on the facts has to be of the delegates and reached by the delegates before whom the case is tried. Proviso to section 46 clearly lays down that it is only when the delegates are equally divided in their opinion, then it is that Presiding Judge can decide the case on facts. Parsi District Matrimonial Court, therefore, is a Court presided over by a Judge of District Court being the Court of original civil jurisdiction aided by seven delegates.
8. The first contention of the learned Counsel which was urged in the present case is that the delegates who gave the decision and answered the issue were only five. With reference to Exhibit 435 he pointed out that it is only five delegates who ultimately decided the matter. A perusal of the index (Rozanama) in this case would go to show that the evidence in this case was commenced on 7th June, 1977, when nine delegates were present. Exhibit 125 shows the number of delegates who were present of whom nine continued to remain in the case to watch the proceeding on the next day of the hearing viz. on 8th June, 1977. There is a list of delegates at Exh. 308 who were present. Similar is the position on 9th June, 1977 as per list Exh. 356 six delegates were present is mentioned. Similarly on 10th June, 1977 as per Exh. 363 and on 13th June, 1977 as per Exh. 369 the delegates were present. On 5th November, 1979 when the case was commenced as per list Exh. 387 the seven delegates were present and on that date the evidence was completed and the matter was posted for arguments.
9. On 29th November, 1979, it appears that only five delegates were present. So is the position on 30th November, 1979 and 1st December, 1979 as per the lists of delegates Exhs. 432, 433 and 434. The findings of delegates are at Exh. 435 referred to earlier.
10. Mr. Agarwal, learned Counsel for the appellant-husband, contended that the proceeding is required to be attended as per section 20 of the Parsi Marriage Act by seven delegates. That this number of delegates according to him cannot be below seven and that if seven delegates had been present and heard the evidence and were present at the time of the trial, then the verdict cannot be returned by only five, two of them not having remained present. The absence of two delegates at the time of the argument and at the time of giving verdict deprives the party of the opinion of two delegates and thus renders a defect in the procedure which has affected the decision. It was urged that it was possible that the absentee delegates would have taken a different view and would have also been able to persuade others to their points of view. Since the appellant is deprived of the advantage of the opinion of these two delegates an infirmity and defect in the procedure was introduced resulting in an erroneous decision.
11. For the respondent, it was urged that under section 44, if there are five delegates, who are attending throughout the proceedings, then the trial is not rendered invalid by reason of the absence "during any part thereof of the other delegates". Mr. Agarwal contends that this section merely takes care of occasional or casual absence of one or two delegates during the course of the trial. It does not contemplate their absence at the time of the verdict. Though a trial may not be vitiated, he argues, on account of occasional and casual absence of one or two delegates during the course of trial, seven delegates must be present at the time of the verdict. He makes a distinction between trial and decision. Section 44, according to him does not affect the trial if there are less than seven delegates as contemplated by section 20 but it affects the verdict and decision and introduces an error of procedure if they were not present at the time of the final decision. Since the decision of the delegates on facts is to be final and binding, he submitted that all the delegates must be present at the time of the decision. It is not possible to accept this contention.
12. It is true that the composition of the Court under the Parsi Marriage Act is provided under section 20, which is constituted at a place other than a Presidency-town. Law lays down that such a Court shall consist of a Judge aided by seven delegates. The words used in section 47 say that it is a decision of the Court which is appealable. Now, the decision of the Court in view of the provisions of section 46 to which I have made a reference, consists of the decision and verdict of the delegates and of the Presiding Judge resulting in the final decision. As pointed out above, section 46 divides the functions to be carried out and performed by the two parts of the Court viz. the Presiding Judge and the Delegates. It is their final conclusion on the basis of the verdict of the delegates as determined in accordance with law by the Presiding Judge entitling or disentitling the plaintiff to relief, which is the decision of the Court.
13. It is true that section 44 does not speak of any decision or the number of delegates not less than five who must be present at the time of the decision. It speaks merely of the trial. But it cannot be argued or contended that the process of deciding by the delegates is distinct and separate from the trial of the suit. The delegates are to aid the Presiding Judge in the final decision of the suit. The trial, therefore, does not and merely with the return of the verdict by the delegates in the suit but ends only with the decision of the Court. It would be wrong to say that the trial ends with the verdict, and therefore, at the time of making of the decision or returning of the verdict all the delegates must be present, and section 44 would not cure any invalidity on account of the absence of seven delegates which would be introduced if there were only five. The verdict of the delegates, in my opinion, in the circumstances is merely a stage in the trial and the trial can only be said to be terminated with the decision by the Court of the case.
14. There is yet one more reason whey this contention of the appellant cannot be accepted. If the Legislature had intended that all the seven delegates must participate in terms of section 46 upon the decision on the facts, then I do not think that the proviso to section 46 would have been worded in the manner in which it has been so worded. That proviso as pointed out above provides that in the case of equal division between the delegates upon a question of fact, the decision on the facts shall be the decision of the Presiding Judge. If Mr. Agarwal is right in his contention that there should be at least seven delegates for the purpose of the decision of facts and in the case of any lesser number of delegates participating and returning the decision, then the decision would be bad then the contingency of the kind contemplated in the proviso would never arise. In another words, if it was the intention of the Legislature that seven delegates must always participate in the process of the decision, then they relied upon the decision of the Court of its Original Side in Cowasil Nusserwanji Patuck v. Shehra Cowas Patuck, 39 Bom.L.R. 1138. The learned Counsel submitted as was done in that case, and as is done in cases tried with the aids of assessors or jury, the Presiding Judge has to sum up the case for the benefit of the assessors or juries. In the case of Parsi Matrimonial proceeding this has also to be done for the benefit of the delegates. He submitted that unless that submission was on record it would not be possible to see how the learned Judge summed up the case, how he guided, what he stated and what principles he directed them to consider and observe while returning the finding on facts.
15. This contention was strongly pressed into service in view of the frame of Issue Nos. 1 and 6 cast by the learned Judge at the trial. Issues Nos. 1 and 6 are in these terms :---
"Whether the plaintiff proves that the defendant has been guilty of such cruelty or has used such personal violence or has behaved in such a way as to render it improper to compel the plaintiff to live with the defendant ?
(2) If yes, whether the defendant proves that the plaintiff is having illicit relations with R.C. Saxena, so as to disentitle the plaintiff to claim any relief ?"
It was, therefore, urged that Issue No. 1 requires the delegates to find firstly whether the defendant was guilty of cruelty. That it is not merely enough to find that he was guilty of any cruelty but that cruelty which is alleged and about which the evidence is led, and the delegates must find, must be of such character "as to render it improper to compel the plaintiff to live with the 'defendant". It was, therefore, submitted that it is not merely enough to record a finding by the delegates as the issue required that there was cruelty, but that cruelty was of such a character that it was improper to compel the parties to live together. The guidance and the circumstances in which it can be properly determined that the cruelty was of such a kind, that it was improper to compel the parties to live together was a matter on which the summation would have guided the delegates to come to a right conclusion. In the absence of the summation the appellant was deprived of a very valuable instrument to understand and consider whether the delegates in recording a finding on facts were guided properly and decided properly.
16. Similar was the contention with regard to Issue No. 2. It called upon the defendant to prove the illicit relations of the plaintiff with R.C. Saxena and again not simply being any illicit relations between them but that too must be of such kind as to disentitle the plaintiff to claim any relief. The findings of the learned Judge in this connection with respect to Issue Nos. 1 and 2 were attacked. It was contended that these findings are contradictory. Though the learned Judge answered in the affirmative Issue No. 5 which relates to the right of the defendant to raise a defence of illicit relations as to disentitle the plaintiff to a decree for judicial separation, the learned Judge found that it was permissible to raise a defence but only as general defence. At the same time, it was contended that the finding on Issue No. 6 suggests that illicit relations were not such as to disentitle the plaintiff to claim any relief. This argument though ingenious must be rejected as not susceptible to a closer examination and correct understanding of what was decided and what was placed before the delegates.
17. It is true that in Meherbai v. Hormasji N. Motivala, 10 Bom.L.R. 1019 adultery viz. general mis-conduct has been held to be the other legal ground disentitling the party to a relief. It was held in that case that it is proved that if the wife was guilty of adultery in terms of section 32 of the Parsi Marriage Act it can be considered one of the legal grounds as contemplated in section 32(e) of the said Act, a legal ground disentitling a party to the relief. A grievance was that when this is considered as permissible defence in answer to issue No. 6, it has been held that illicit relations were of such kind disentitling the plaintiff to claim any relief. Now, to analyse issue No. 6 as set out, it will be seen that issue No. 6 consists of two components. The first part of the issue deals with intimate or illicit relations by the plaintiff with R.C. Saxena and the second whether such illicit relations disentitle the plaintiff to claim any relief. The first part of the issue viz. whether there were any illicit relations between Saxena and the plaintiff is a pure question of fact. It may be possible to urge that the second component of the issue viz. whether it was of such a character as to disentitle the plaintiff to claim any relief is a mixed question of fact and law. But it is quite clear that any investigation or inquiry into this latter part of the issue will depend upon the answer to the first part. It is obvious that where there is no finding of existence of any illicit relations between Saxena and the plaintiff, there is nothing further to inquire, whether any such relations would disentitle the plaintiff to claim any relief. The argument though attractive does not bear examination. Since the first part of the issue is a pure question of fact within the exclusive competence and jurisdiction of the decision of the delegates, the finding of the delegates must be understood in that light. The finding must, therefore, be understood to be that the delegates did not find any illicit relations between Saxena and the plaintiff. If that is so, nothing further remained. Even though adultery may be "other legal ground" which would disentitle the plaintiff to a decree for judicial separation, since it did not exist there need have been no further inquiry.
18. Besides, in Meherbai's case the kind of adultery which was found as other legal ground disentitling the wife to a decree was a general misconduct i.e. general adultery. The issue there was also, whether the plaintiff was guilty of adultery with one Sorabji Nowroji and others. That indicated therefore, a course of conduct and not a single act of infidelity. Even on merits the learned Counsel has not been able to point out that there was cogent and acceptable evidence to reach the conclusion of adultery by the plaintiff. Reliance was placed on two letters in the Court below, Exhibits 366 and 367 from Saxena to the plaintiff, dated 29th August, 1963 and 16th April, 1965. Apart from the question whether these letters have been written by Saxena, having gone through these letters, it is not possible to conclude that they show any adulterous behaviour or conduct which can be described as general mis-conduct on the part of the plaintiff. I am, therefore, not satisfied either on facts or in law, the there was any defect in the procedure with regard to the finding of issue No. 6 which would vitiate the decision
19. Before proceeding to the other question, I may point out that though the learned Judge has not placed on record his summation, there is evidence to show that the Presiding Judge did so. In para 7 of his judgement he says that "at the end of the arguments, the Court summed up in short the evidence for consideration by the delegates and also explained to them the legal position about the nature of proof required in case of cruelty". Later again after survey of the entire evidence adduced by the parties documentary and oral to which he makes a reference in his judgement commencing from para 9 to para 47 and in para 48 observed that "all the above different aspects regarding the facts of the case with reference to the oral evidence and the documentary evidence were explained to the delegates". He then proceeded to deal with the question of cruelty. So far as the question of cruelty is concerned relating to issue No. 1 have already dealt with the other aspect of the case whether there was adulterous behaviour on the part of the plaintiff. It will, therefore, be seen that whatever one finds in the judgment from paras 9 to 47 was summed up and pointed out to the delegates for their consideration.
20. Now, we may go to the remaining contentions which were advanced relating to issue No. 1 of cruelty and the contention that the decision was contrary to law. Reliance once again was placed in this behalf on the decision of Cowasji's case reported in 39 Bom.L.R., 1138. In summing up, Justice Wadia observed that legal cruelty means "as understood in English law, namely, injury, causing danger to life or limb or health, or reasonable apprehension of such injury", and further that was the meaning of the word 'cruelty' under section 32 of the Parsi Marriage Act. Mr. Agarwal pointed out that the learned Judge seems to have not chosen to follow this statement of law of Justice Wadia and has referred to the provisions of the Hindu Marriage Act. His contention was that it was wrong to import the notions of cruelty under the Hindu Marriage Act into the Parsi Marriage Act for two reasons. He contended firstly that this Court had held that 'cruelty' as stated in section 34 of the Parsi Marriage Act was other legal ground as understood in English law meaning thereby such cruelty as would likely to cause danger to life, or limb, or health or reasonable apprehension thereof. On the other hand, the concept under the Hindu Marriage Act of cruelty was not so stringent particularly after the amendment to sections 10 and 13 of the Hindu Marriage Act.
21. The learned Judge in this behalf observed that "a number of years have passed thereafter (after the decision of Cowasji's case in 39 Bom.L.R. 1138 decided in 1937) and there has been a further development and rethinking over the whole law. It is, therefore, not understood why the observation in the case of the Supreme Court Dastane v. Dastane, should not also be applicable to cases under the Parsi Marriage and Divorce Act". It was, therefore, urged that the learned Judge modified the connotation of the word "cruelty" in accordance with the concept of Hindu Law and imported it into the Parsi Matrimonial Law which was contrary to law, and therefore, the decision of the Court must be upset.
22. The present requirement under section 13(1)(ia) of the Hindu Marriage Act to obtain a decree for divorce is that the petitioner must have been treated with cruelty and nothing more. Section 10 has now undergone a charge while formerly cruelty was a ground for judicial separation was provided under section 10 of the Hindu Marriage Act. Section 10(1)(b) was then worded "with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party". It is clear, therefore, that the former requirement of the Hindu Marriage Act was more stringent than the present, which requires only proof of cruelty. As to what is meant by cruelty is not defined in either Hindu Marriage Act or Parsi Marriage Act. In Dastane v. Dastene, , with reference to the word, cruelty, occurring in the former section 10(1)(b), the Supreme Court held that to prove cruelty "it was not necessary, as under the English Law, that the cruelty must be of such a character as to cause 'danger' to life, limb or health or to give rise to a reasonable apprehension of such a danger". With this decision, it must be held that is the law so far as Hindus in our country are concerned and the notions of English Law as to what is cruelty in Matrimonial Causes cannot be imported. The learned Judge, therefore, was not right in preferring the definition of cruelty as made out in Dastane's case (supra) than Cowasji's case which was decided on the basis of English decision. I do not think, however, that there was any misapplication of law so as to entitle the appellant defendant to have the decree set aside. Besides I must say that on facts also there was evidence which was considered and found by the delegates as well as by the Presiding Judge of an assault by the defendant upon the plaintiff at least at Rajkot. The course of conduct which was complained of is such that it is capable of coming within the definition of cruelty enunciated by this Court in Cowasji's case. Even if, therefore, the learned Judge had in his summation to the delegates indicated as to what was meant by cruelty in accordance with Hindu Marriage Law as laid down by the Supreme Court I do not think that it can be said in any way contrary to law. Consequently there were no ground in which the decree passed by the Parsi Matrimonial Court is liable to be set aside.
The appeal, therefore, fails and is dismissed. There will be no order as to costs.