Bombay High Court
Pramod Purshottam Patkar vs Vasundhra Pramod Patkar on 3 November, 1987
Equivalent citations: AIR1989BOM75, AIR 1989 BOMBAY 75
Author: Sharad Manohar
Bench: Sharad Manohar
JUDGMENT
1. The Appellant in this appeal was the petitioner in the trial Court who had filed M.J, Petition No. 414 of 1982 against his wife , the present respondent for a decree for divorce. The grounds mentioned for divorce were two-fold :-
(a) Cruelty on the part of the respondent/wife. Evidenced by the various instances averred in the petition and deposed to in the evidence: and
(b) desertion for a period of nearly 15 years before and till the date of the petition.
2. The Respondent/Wife filed her written statement and denied the various allegations of cruelty levelled against her. She also denied desertion on her part and contended, implicitly, if not in so many words, that the petitioner was himself the sole cause of desertion which was the constructive desertion practiced by himself against the respondent by driving her out of the matrimonial home. Her defense amounts to this that it was the petitioner who was to be blamed for her departure from the matrimonial house, because it was he who made her leave the house.
I may mention here that what is stated above is the substance of the Respondent's averments in Para 10 of her Written Statement. She has not made those statements in so many words, but I have no doubt that is what implies.
3.On these rival contentions. Issues were framed by the learned Judge and the parties went to trial. Evidence was led only by the petitioner. The respondent did not as mush as step into the witness-box. It can be safely stated that evidence of no kind whatsoever was led by her event to prove that her departure from the matrimonial home was the result of anything done by the husband against herself or that it was the result of the fact that her living in the house was made impossible by the husband.
In spite of this position, the learned Judge record the finding that:-
(a) the petitioner had failed to prove the cruelty alleged against the respondent/wife:
(b) he had failed to prove also the fact that it was the respondent who had deserted him. Implicitly, he has held that the petitioner/husband had failed to prove that the desertion continued over this long period of 15 years till the date of the petition
4. The major facts, out of which the petition arise and on the basis of which the present Appeal can be disposed of, are more of less admitted facts.
The marriage between the two spouses took place on 11-5-1965. The two persons knew each other for a period of about 5 years before the marriage, In fact it is almost common ground that their engagement also took place about 5 years before the marriage and the respondent was in fact visiting the place of her fianc, at Gamdevi, quite often while they were engaged to each other. The respondent was therefore aware of the fact that the petitioner was staying with his old mother and she had occasion to know the nature of her mother-in-law. After the marriage, they stayed with each other , one child (son) was born, but it was a still -born child. Thereafter, the respondent was once again in the family way and for her delivery she went to stay with he mother., who was staying just at a walking distance, from French Bridge. The daughter was born on 10th January, 1968.
The subsequent incidents are matters of dispute, but I need not examine the correctness of the version of either of the parties, because the question has become now a matter of academic importance. Contention of the petitioner was and is that the respondent started misbehaving with her mother-in-law., that is to say with the petitioner's mother and that she went to the extent of even assaulting her. His further contrition is that some of these incidents took place in the presence of 3rd persons. Giving rise to scenes. According to him, the respondent insisted that she should stay away from his mother in a flat which she would secure from her office and when he refused to fall in line with the suggestion she stated that in that event she was leaving the matrimonial house with no intention to return. According to him, she in fact left the matrimonial home. Taking with her all the jewels, ornaments and her valuables informing him that she entertained (no?) intention to revert back to the matrimonial home. No doubt this entire story has been flatly denied by the respondent./wife. But a most crucial document, has come on record., the authenticity of which is not ni dispute. It is the Notice dated 5-2-1969, sent by her to the petitioner /husband . It is an Advocate's Notice in that Notice , she was made allegation that it had become impossible for her to stay in the matrimonial house . She also stated that the notice she had decided not to return back to the matrimonial home at all. She further asked for maintenance for herself at the rate of Rs. 125/- per month and for her infant daughter at the rate of Rs. 100/- per month, This Notice is at Exhibit "A" in these proceedings.
A reply dated 7-3-1969 (Exhibit "B" ) was given by the petitioner's Advocate to the said letter ,in the reply, the allegation of cruelly mired out of her were denied, It is unnecessary for me to refer to that part of the reply. But it is necessary to set out of the petitioners contention relating to the respondents statement that she was not prepared to come back to the matrimonial home. In the last Para of the reply, it is stated as follows:-
" As your client has left my client's house of her own accord without any just cause with the intention not to return and after expressing her desire not to see ny client's face in future your client is not entitled to demand any maintenance".
Pursuant to this Notice (Exhibit "A") for maintenance. The respondent filed an application in the court of the Presidency Magistrate u/s 488 of the Criminal Procedure Code, as it then stood. There is no disputer that the application was not contested at all and it was agreed that the petitioner would pay a sum of Rs. 100/- to his daughter Devaki as maintenance per month. There is further no dispute that this amount of maintenance is being paid accordingly by the petitioner/husband to his daughter till this date. Whether the amount of Rs.100/- per month should be held enough for the child even at this stage is a different question. The question has no bearing upon the present proceedings although having regard to the ends of justice. I propose to pass an independent order in this behalf directing the petitioner/husband to make some better provision for his own daughter.
5. But in the year 1969 itself, the present petitioner filed M.J. Petition No. 8622 of 1969 in the Bombay City Civil Court for a decree of judicial separation . I may mention here that both the grounds which are the subject matter of the present petition, were urged by the petitioner in the said proceeding instituted for judicial separation, His contention firstly was that the respondent was guilty of cruelly towards himself and towards his mother and that she was also guilty of deserting the petitioner by leaving the matrimonial home without any just cause . The respondent filed her Written Statement and denied those allegations and hence, the learned judge framed the issues. Those issues have a very material bearing upon the question falling for determination in these proceedings . Hence , the issues and the Court's finding thereon are set out herein below:-
( See table below)
16. On these pleadings, the following issues were framed by me My finding on the same are:-
1. Whether the petitioner proves that the respondent has treated him With such cruelty as to cause reasonable apprehension in the mind No Of the petitioner that it would be harmful or injurious for him to live With the respondent?
2. Whether petitioner proves that the respondent has deserted him for a continuous period of 2 years, immediately preceding the No Presentation of the petition?
3. Whether there is any legal ground to refuse the petitioner the relief of Decree for judicial separation, claimed by him? Does not survive.
4. Whether the petitioner is entitled to a decree for judicial separation On the grounds alleged by him? No
5. What Order? See Order below".
6. I may further mention here that I have perused the entire judgment delivered by the said Court. The Court has no doubt held that the petitioner /husband had failed to prove the cruelty alleged by him against his wife. It also held that the learned Judge had no reason to hold and he in fact did not hold that the boot was on the other foot. On the question of cruelty, the learned Judge held only this much viz, that the petitioner./ husband had failed to make good his allegation of cruelly by the wife. Vis a vis the issue of desertion , the learned judge held that the petitioner/husband has failed to prove that when the wife actually left the matrimonial; home on 21-5-1967 or 22-5-1967, she entertained any animus discerned. The learned judge had no occasion to hold and had in fact not held that she was required to leave the house because of the cruelty practiced by the husband upon her. The learned Judge has not held that is was the husband or his mother who had driven the respondent/wife out of the issue did not fall for the consideration of the learned judge and, as I go through the judgment . I find that no such conclusion has been given or arrived at by the learned judge at all holding that it was the petitioner/ husband who had compelled the respondent/wife to leave the matrimonial house against her wait.
7. It is in the context of this judgment in the previous petition that we have to consider whether the respondent/wife was entitled to call upon this Court to accept her pleas in her written statement without demur. To swallow them hook, line and sinker, without leading any evidences to prove those allegations, and to hold in favour of the house was based upon any legal justifications.
8. It is command ground before me that after this judgment was given by the Court on 11-11-1971, the situation has remained stagnated all this time. The petitioner husband did not file any appeal against that judgment . He wherever may be reason , fact remains that parties have not come together at any time, thereafter In the above mentioned judgment in the earlier petition, the learned judge had taken a view that the animus discerned on the part of the respondent wife was not proved because the wife used to telephone to her husband in his office. I have my own doubts as to whether such a view could be legitimately taken. A telephonic communication of the gone asunder. But I have read the judgment of the learned Judge and I am not sure that the inference of the learned Judge viz that those telephonic communications spelt desire on the part of the wife to, come back to the matrimonial house was a legitimate inference . But whatever they may be, the present petitioner had not filed appeal against that judgment and hence the decision become that judgments and hence the decision final and conclusive so far as present petitioner is concerned. But I may mention here that so far as the position subsequent to the judgment is concerned, there is not even any whisper of any communication, of whatever character, between the husband and wife. Telephonic or otherwise. Not even legal notices have been exchanged . The husband has been living separately. He left his residence at Gamdevi and went to reside died at Mahim. The respondents mother died and respondent continues to stay in the French Bridge premises along with her daughter. The two spouses are living away from each other almost as strangers for the past 18 years.
9. In these circumstance . the present petition was filed by the petitioner husband on 20th March 1982, for divorce. The grounds assigned for prayers for the decree for divorce , as mentioned above are the self same grounds namely cruelty, and desertion. But , as mentioned above , the petitioner has stated in no uncertain terms that the respondent was has deserted him for about 15 years also referred to the notice given by the respondent's advocate on behalf of the respondent dated 5th February, 1969 in which she has stated in no uncertain terms that she had no desire to come back to the matrimonial home . No doubt she has also relied upon also for resisting the earlier petition for for judicial separation but, from the very nature of things. The cause of action for divorce on the ground from the one of the earlier petitions. In the earlier petition , the desertion was alleged from 21st or 22nd May, 1967. In the present petition, the desertion is alleged of the petition. As will be presently pointed out the notice dated 5th February,1969 leaves no room for doubts that the respondent had expressed her home. That would itself be the date from which desertion would start because till that state she could be said to have manifested her intention to desert. As is well known desertion is not mere living away. Intention not to revert back to the matrimonial homes is the gist of the concept of desertion. In the instant case that intention was manifestly expressed for the first time by the notices dated 5-2-69. As argued by Mr, Singbal, the learned Counsel for the appellant, the earlier petition could not have been decided with reference for this cause of action dated 5-2-69. The earlier petition for judicial separation ws filed in the year 1969 itself. The period of two years had not expired from the date of that cause of action when the earlier petition was filed. Mr. Singbal argued, with evident force, that so far as the present petition was concerned., the petitioner was entitled to make use of that cause of action which arose out of and was evidenced by the notice dated 5-2-69.
10. After the issue were framed parties went to trial. The petitioner gave his evidence. He referred to the earlier acts of cruelty referred to by him in the petition . I may state at this at this stage itself that so far as the ground of cruelty is concerned, it would be of no avail to the present petitioner because the decision in the earlier petition for judicial separation would inexorably constitute is judicata in the present proceeding . It will not be open for this Court to hold that the instances of cruelty which were the subject matter of the earlier petition and which were held not to have been established on the basis of the evidence led in the earlier petition could be said to have been proved in the present petition on the basis of the evidence led in this proceeding . May be that the respondent had not stepped into the witness box for denying the evidence led by the petitioner husband in support of his plea of cruelty but the earlier Court has held that plea of cruelty was not made good. The present petition does not make out any different cause of action so far as the plea of cruelty was concerned, In fairness to Mr Singbal I contenting that it would be open for him to set up the said plea of cruelty in the present petition.
11. But Me Singbal is very much right so far as the second plea of desertion is concerned, The caused of for desertion in the present case is not the same as the one in the earlier petition. One and the same relief can be asked for on the basis of various causes of actions. In the earlier petition , the cause of action for the petition for divorce on the ground of judicial separation was the one dated 22-5-1969. The cause of action for the decree for divorce in the present proceeding is the notice dated 5-2-1969. In which notice the respondent wife declared her unequivocal intention for the first time not to return to the matrimonial home. Decree for judicial separation could not have been passed by the earlier because the requester period of two years had not expired on the date of the earlier petition. That period has expired long back so far as the present petition concerned.
The only question that therefore , remain is whether the petitioner has made good the case of desertion on the basis of the said notice dated 5-2-69 in which the respondent wife declared unequivocally her intention not to come back to the matrimonial.
12. The fact that such notice was given by the respondent-wife to the petitioner husband is an admitted fact. The notice itself is on record. The reply given thereto is alos in record. The notice no doubt states that the petitioner-husband and indulged in a conduct which compelled her to leave the matrimonial home.But the fact remains that she stated that because of that conduct she has taken a decision not to revert back to the matrimonial home. The petitioner has stepped into the witness box and has stated that the respondent had left the matrimonial home. The petitioner has stepped in to the witness box and has stated that the respondent had left the matrimonial home, without any justification . Hr has also cruelty. I am not inclined to pay any heed to that part of the evidence at all. To my mind , the petitioner's evidence relating to cruelty need not be even relating to desertion by his wife is conserved, it would have to be accepted unless there is a counter balancing evidence, In this connection, it is to be noted that the fact that the respondent wife has been living away from the matrimonial home for a period far exceeding 15 years, not only till the date of the petition but even till this date is not disputed at all. It is nobody's contention that after the judgment was delivered in the earlier petition., any attempt was made by the respondent-wife to go back to the matrimonial home. Mr.Nadkarni, the learned advocate for the respondent -wife contended that no attempt was made by the petitioner-husband to take her back , but even the learned advocate could not deny the fact that the respondent-wife had sent the notice dated 5-2-69 in which she had stated in no uncertain terms that she had no intention to go back to the matrimonial home. She has referred to some reasons why she was not prepared to come back. Had she established those reasons. The petition would have to be dismissed because in that case she would be deemed to have proved that this case. Far from being a case of desertion by the wife, was a case of constructive desertion by the husband himself because it was he who would be deemed to have driven her out of the matrimonial house. But the factual position in the present case relating to the evidence is that the respondent-wife has not as much as stepped of whatever character led by her in the present proceeding to prove the circumstance in which she left the matrimonial home.
13. Mr. Nadkarni wanted to rely upon the evidence of the wife in the earlier proceeding showing that no cruelty was indulged in by her. Such an attempt and approach is fruitless. In the first place you an not rely upon the evidence in the earlier proceeding, unless that evidence is made a part of the present proceeding in the second place. I am not accepting the petitioners evidence relating to ceualty at all, not because according to me his evidence is not reliable but because it is not open for him now to lead the evidence . But as mentioned above, so far as the plea of desertion is concerned, the very cause of action is different. He was entitled to lead evidence on that cause of action, he has led evidence on that cause of action and what we find is that there is no counter evidence led by the wife at all. In her notice dated 5-2-69 she had stated that there were certain reasons which compelled her to leave the matrimonial house, and she stated further that on that account she had made up her mind not to revert she desired not to come back is evidenced by the notice. It is evidenced also by the fact at least prima facie in that she has not returned to the matrimonial home at any time thereafter. But the fact that she had very good reason for doing so is something which has to be proved by evidence. There is nothing in the evidence of the husband which prove this/ there is nothing in his cross examination which proves this. There is no circumstance bought on record by the respondent/wife why she should not have returned to the matrimonial house. The question whether she had just cause to remain away from the matrimonial house. We not in issue in the earlier proceeding All that was examined in the earlier proceeding was as to whether she had an animus desserendi when she left home on 21/22nd May 1967. Whether she disclosed her animus deserendi by their Notice dated 6-2-69 was not examined in the earlier proceeding. In that connection, the husband has led evidence whatsoever. On the evidence led. The petitioner /husband is entitled to a decree for divorce on the ground of desertion. The plea of Mr. Nadkarni, the learned Advocate for the respondent, that it was not necessary for the respondent to lead evidence because the husband was not entitled to file the petition is a fruitless plea Significantly enough , this plea does not appear to have been taken in the lower Court. In any event, no issue is invited on the plea. The court can understand the position if this was a case where there was the evidence of word against word. If there was the word of the husband that the respondent wife has deserted him and if the wife had come to the Court to give evidence that she always wanted to come back to the matrimonial home. The position would have been entity different, But in the present case it is word of only husband . Beyond setting out her word protestation in the written statement, the respondent wife has done nothing to make good her plea of constructive desertion by the husband itself.
I may mention her that no effect was spared by me to bring the parties together . It appears now that the petitioner's mother in no more alive. Likewise, the respondent's mother is dead/ They have a grown up daughter. There is no difficulty of accommodation either. Still I could see that the marriage has gone on the rocks. It has broken down. The parties can no longer live together as husband and wife. As observed by the Supreme Court in Smt. Saroj Rani v. Sudarshan Kumar Chadha, .
" It is evident that for wherever be the reason , this marriage has broken down and the parties can no longer live together as husband and wife and if such is the situation, it is better to close the chapter."
The appeal therefore, succeed. The decree passed by the lower Court is set aside and the appellant's petition for divorce is decreed and it is declared that the marriage between the petitioner and respondent is dissolved by this decree of divorce.
However , in the circumstances of the case, there shall bee no order as to costs.
14. Appeal allowed.