Bombay High Court
Desiderio Santan Sebastiao Pretto vs Mrs. Natalina Filomena Gomes on 21 December, 2000
Equivalent citations: I(2002)DMC78
Author: Pratibha Upasani
Bench: Pratibha Upasani
JUDGMENT Pratibha Upasani, J.
1. This first appeal is filed by the appellant/husband Desiderio Santan Sebastiao Pretto being aggrieved by the judgment and order dated 19.8.1997 passed by the Civil Judge, Senior Division, Mapusa in Special Civil Suit No. 125/93/A. By the impugned judgment and order, the learned Civil Judge, Senior Division, Mapusa dismissed the suit of the appellant/plaintiff which he had filed praying for dissolution of his marriage with the respondent/defendant, Natalina.
2. The appellant's case is that he got married to the respondent on 27.12.1966. Three children were born of this wedlock, who are with the wife. The case of the appellant is that in the year 1972, the respondent deserted the conjugal house and was living at Marwado, Mapusa. According to the appellant, the respondent refused to live with the appellant and started saying that the appellant should come and live with her at Tivim. The appellant tried to reconcile and in fact, stayed with her at Tivim for sometimes but the respondent and her parents started abusing and insulting him. The appellant also asked her to leave and stay in his house at Aldona. Thus, unable to bear the tortures, the appellant started staying separately. On 6.9.1993, the appellant filed the present suit for divorce under Article 4(4)(5) of the Portuguese Civil Code, that is on the ground of complete abandonment of the conjugal domicile for a period of not less than 3 years. Earlier to the present suit, the appellant had filed another suit at Bicholim Court, seeking to restrain the respondent from constructing a building at Tivim. According to the appellant, the respondent has no intention to return to the matrimonial home, but the husband and the wife have been residing separately de facto for last many years. The respondent has been working in Saudi Arabia and has completely prejudiced the mind of the children. The children do not want to come to see the appellant. The appellant has, therfore, prayed that his marriage with the respondent be dissolved on the ground of complete abandonment of conjugal domicile and also for ill-treatment by the respondent to the appellant.
3. The respondent/defendant/wife filed written statement, wherein all the contentions raised by the appellant/husband were denied. It is her case that the appellant is a seaman by profession and most of the time, he is away from Goa. According to her, when she conceived for the first time, she came to her parents house at Tivim for delivery, where she gave birth to her eldest son Sylvester on 1.10.1967. It was decided by the appellant and the respondent mutually that till Sylvester was reasonably grown up, the respondent would stay along with Sylvester at her parents place at Tivim. At the appellant's place, there was nobody to look after Sylvester, except his aged mother and the appellant himself was always out of Goa on account of his job. In the year 1970, another son was born by name Melvin and in the year 1971, third son by name Michael was born. By that time, first son Sylvester was of the school going age and was in fact, going to school at St. Britto High School, Mapusa from Tivim. When the second and third child were born, it was decided by the appellant and the respondent mutually that the respondent would stay at Tivim till all the children were fairly grown up. In the year 1975, the second son also started going to school. The appellant suggested that it would be difficult for the respondent to bring both the sons to Mapusa in the early hours of morning for sending them to school and proposed that the respondent should acquire a rented house at Mapusa, so that it would be convenient for the children to attend school. In the year 1975, the respondent procured a rented house at Marwado, Mapusa and stared residing there along with the children. The respondent used to stay with the appellant sometimes at Tivim, and sometimes at Aldona, whenever the appellant used to come on holidays. The appellant also used to stay sometimes with the respondent and children at Aldona, as well as at Tivim, so also at Mapusa. In the year 1981, the appellant stopped visiting the children and the respondent at Mapusa. It is the case of the respondent that the appellant is a person of whimsical character, temperamental in attitude and miser at core, without any education. According to the respondent, the appellant used to pick up quarrels with the respondent and the children on some pretext or other. According to her, the appellant did not send any money for the maintenance of the respondent and the children for a long time and the respondent virtually lived on charity of her parents and was forced to take up a job of nurse in Remanso Hospital. According to her she has brought up the children with utmost sacrifice from her side. Since the appellant did not bother to maintain her and the children, she was forced to serve legal notice on the appellant and it was thereafter, that with great reluctance the appellant sent some money for the expenses of the respondent, however, from 1981, the appellant has virtually stopped sending money. He also stopped visiting the respondent and the children. To the shock of the respondent, the appellant filed a suit for divorce on the ground of alleged adultery of the respondent which he subsequently withdrew unconditionally. She has further averred in the written statement that since the children were studying at St. Britto High School at Mapusa, and as she herself was working as Nurse at Mapusa and since she had to attend night duties, she had to stay at Mapusa. She has further submitted that whenever, that is prior to 1981, the appellant used to come to stay with the respondent and the children at Mapusa, he used to quarrel, abuse and insult them. According to her, the appellant never tried to reconcile the marriage. It is also her case that right from the beginning, the children are in her custody and care and that she has brought them up and now they are settled in life because of her sacrifice. She has denied that she has abandoned the conjugal domicile and that there is de facto separation etc. She has stated that though there was separation, it was not freely consented to by herself. She has also submitted that the appellant never showed any love and affection for the children and stopped visiting them, as well as the respondent herself. She has also stated that she is not working in Saudi Arabia, but working in a private hospital at Porvorim. She has denied that she is well of and does not require the company of the plaintiff. She has also denied that the respondent has prejudiced the mind of the children. In short, the allegation of abandonment of the conjugal domicile is denied by the respondent and she has prayed that the suit of the appellant/plaintiff for divorce be dismissed.
4. On these pleadings of the parties, the learned Civil Judge, Senior Division, Mapusa framed the issues, which are as follows :
(1) Whether the plaintiff proves that the Defendant has abandoned her conjugal domicile for more than 3 years ?
(2) Whether the defendant proves that the present suit is not maintainable in law as the plaintiff has already withdraw the Special Civil Suit No. 255/1981 for divorce filed by him against the defendant on the same cause of action and he has withdrawn the same without leave of the Court?
5. After recording the evidence of the plaintiff and one more witness in support of his case, so also on recording the evidence of the defendant herself and hearing both sides, the learned Civil Judge, Senior Division, Mapusa came to the conclusion that the plaintiff had failed to prove that the defendant had abandoned the conjugal domicile for more than 3 years. He also gave a finding that the defendant could not prove that the present suit for divorce filed by the plaintiff was not maintainable in law as the plaintiff had already withdrawn Special Civil Suit No. 255/1981, which also was for divorce, as it was withdrawn with leave of the Court.
6. As far as first point, which is the main point before the Court, about the defendant's alleged abandonment of her conjugal domicile for more than 3 years, is concerned, the admissions given by the plaintiff in his deposition would be significant. After admitting his marriage with the defendant and three children which were born out of the wedlock and also after admitting that he was a seaman by profession and had filed a suit earlier for divorce, in cross-examination/he stated that he had not pleaded that his wife was living in adultery. This is patently a false statement because the earlier suit for divorce which was filed by him, was on the ground of alleged adultery of the defendant. This suit, being Special Civil Suit No. 255/1981/ was pending for almost 11 years and was subsequently withdrawn by him only in the year 1992. In the very next sentence, in the same breath, he however, stated that in the earlier suit, he had stated that his wife had illicit relations with one Alex. He admitted in his cross-examination that in the year 1981, his wife took a rented premises in Mapusa because of children. He also admitted that he had no document to show that he was remitting money to his wife and the children. He also admitted that his wife was working as a Nurse on right duty at Remenso Hospital and that it was difficult for her to come from Aldona during night and that is why she was residing at Mapusa. He also admitted that he was not abandoned by his wife and that he left on his own and started staying at Aldona.
7. This is the quality of the plaintiff's evidence. The examination-in-chief of the plaintiff is also very scanty and does not say anything what has been pleaded in the plaint. What has been stated by the plaintiff is that his mother expired in 1989 who used to cook for him after he was abandoned by his wife and that he was getting stomach upsets because of eating outside. He also stated that he requested his wife on several occasions to join him, but that she refused. He produced his Marriage Certificate, but he could not produce any evidence to either show that any attempts were made by him to reconcile the marriage or to show that he was sending money for the maintenance of his wife, namely the defendant and the children. He knew that his children were studying at St. Britto High School at Mapusa, but except for the oral statement that he was sending money to his wife and children, no documentary evidence could be produced by him in support of it. He also could not examine any witness to support his case. One George Martins has been examined by him as P.W. 2, whose evidence was rightly rejected by the Trial Judge as being completely hearsay.
8. As against this, the deposition of the defendant/wife of the plaintiff Nataline appears to be consistent and convincing. She has given reasons for staying initially at Tivim with her parents' place and thereafter, at Mapusa. Admittedly the plaintiff is a seaman by profession, who, most of time, was away from home. The defendants had her parents who were staying nearby. During the absence of the plaintiff, it was natural for the defendant/wife, who had three small children, to go and stay with her parents. It was also natural and reasonable for the wife to make a home at Mapusa for the school going children who were attending the school at Mapusa. Since no money was forthcoming from the plaintiff, she was constrained to take up a job of Nurse at a private hospital near Mapura. The plaintiff himself has admitted that it was not possible for his wife to every day go to Adlona because of children and that because of children's convenience and for their education, he suggested to his wife to acquire a rented house at Mapusa and, that is how, the defendant started living at Mapusa. This was purely a mutual arrangement between the husband and the wife for the sake of convenience, more of the children. If relationship between the parties subsequently soured, it cannot be said that the defendant had abandoned the conjugal domicile. The strained relationship between the parties was another problem. In between the plaintiff also filed a suit for divorce, being Special Civil Suit No. 255/1981 wherein he made allegations against the wife that she was having illicit relationship with one Alex. This suit was pending for about 11 years. It would be preposterous to contemplate that when a suit for divorce on the ground of alleged infidelity of the wife is filed by the husband, the wife would go and stay with the husband during the pendency of that suit. It is pertinent to note that this suit was withdrawn by the plaintiff unconditionally only in the year 1992 and again filed the present suit for divorce in the year 1998 on another ground. By that time, probably the relationship between the parties had worsened.
9. Mr. Kantak, appearing for the appellant/husband, submitted that not only the defendant has abandoned the conjugal domicile for more than 3 years, but, even as such, they have been residing separately for a very long time and the marriage between them is practically dead and over and, therefore, there is no point in continuing with the marital status of the parties. He, therefore, submitted that under these circumstances, the marriage between the parties, has to be dissolved.
10. Mr. Malgaonkar, appearing for the respondent/wife, on the other hand, forcefully argued that the defendant might be residing separately for a long time due to sheer constraint of circumstances, convenience of the children and for the sake of her own service as night shift nurse in the hospital at Porvorim, but that does not mean that she has abandoned her conjugal domicile, He also pointed out that as such, there is no mention in the plaint as to which place constitutes "conjugal domicile" of the parties inasmuch as there is no single statement in the plaint that after marriage, the plaintiff and the fendant resided at their matrimonial house at a particular place. He submitted that since the plaintiff was a seaman he used to be always away from Goa and, therefore, the defendant when she delivered her first child was constrained to reside with her parents and that the plaintiff/husband was going and residing there for sometimes when he used to come on holidays. He submitted that it is not clear as to which is supposed to be a "conjugal domicile" of the parties - whether it is Adlona, or whether it is Tivim or whether it is Mapusa.
11. I have heard both the Advocates at langth. I have also perused the evidence recorded by the lower Court and the judgment of the lower Court and, in my opinion, there is substance in the submissions made by Advocate Mr. Mulgaonkar appearing for the respondent. As such, the evidence recorded by the lower Court is very scanty. Both the parties are to be blamed for this. The evidence of the plaintiff is all the more scanty and is without any particulars. It is as brief and as vague as it can be. In fact, his cross-examination is dotted with all the admissions which supports the defendant's case. It completely negatives his own averment regarding abandonment of conjugal domicile by the defendant. The picture that emerges before the Court from the deposition of both the parties is that the plaintiff was a seaman who used to be away for most of the time from Goa. The young wife of the plaintiff for the purpose of delivery went to her parents' house and used to stay there, as there was nobody else in the plaintiff's house apart from his old mother. The plaintiff, whenever he used to come to Goa for holidays, used to stay sometimes at the defendant's parents' place at Tivim with the defendant. The parties also used to stay sometimes at plaintiff's place at Aldona. Thus, somewhere they were residing together. Three children were born out of the wedlock. Later on, as the children grew up and became of school going age, need for a stable residence at a place where the children were going to school, arose. The place at Mapusa was chosen because the children were attending St. Britto High School, Mapusa. It was difficult for the defendant/wife to reach the children to school early in the morning from Aldona and hence, on a mutual understanding between the plaintiff and the defendant, the defendant with the children started residing in a rented house at Mapusa. Subsequently, the relationship between the plaintiff and the defendant became sour. It also appears that the husband started neglecting the wife and the children which necessitated the wife to take up employment as a night shift Nurse in a private hospital at Porvorim. This action put compulsion upon the defendant to stay at Mapusa only. There was also allegation by the husband that she was having some illicit relationship with one Alex. Suit for divorce based on this allegation was also filed, which was kept pending for 11 years. In the meantime, there was no financial help from the husband to the wife or to the school going children. Thereafter, the present suit for divorce was slapped by the husband on the ground of complete abandonment of conjugal domicile by the wife. Thus, it appears that the wife, by sheer force of circumstances, was constrained to reside separately sacrificing her own interest and purely for the sake of children, but that allegedly provided a cause for the husband to file a suit for divorce. Since the parties are residing separately for a pretty long time as contended by Mr. Kantak appearing for the plaintiff, the marriage might be dead and over, but the marriage bond still survives. The wife does not want divorce. It does not appear that she is very much attached to her husband, but, if a decree of divorce is granted to the husband on the grounds which are pleaded by the husband, the wife would be punished for the fault which she has not committed and the husband's stand will be vindicated, which is not the factual position.
12. Now the husband and the wife have become both old and the children have all grown up and are themselves married and settled in life. It appears that the circumstances alone were more responsible for the things to come to such a pass rather than the parties themselves. Even now the doors for reconciliation are hot closed, if, only the parties given up their individual ego. Both should keep in mind that during old age need of spouse is felt more than is felt in younger days. Contention that the marriage has remained only for name's same is not, by itself, a ground for dissolution of marriage. If the prayer of the husband for dissolution of the marriage on the ground as stated by him is granted, it will be injustice to the defendant who was constrained to stay separately from the husband for the sake of the children's education. Presently, relationship between the parties may not be as lovable as it should be and the separate residence might have made the parries more rigid, but considering the long pendency of the earlier suit, it was too much to expect that during the pendency of the divorce proceedings which were filed on the ground of allged adultery the wife would go and stay with the husband. The plaintiff/husband has not come out convincingly as to what concrete, genuine and honest efforts were made by him to reconcile the marriage. Under these circumstances, to allow his prayer for dissolution of marriage would amount to giving him benefit of his own wrongs. Hence, the following order :
The First Appeal No. 1/1998 is dismissed. The judgment and order dated 19.8.1997 of the Civil Judge, Sr. Division, Mapusa is, hereby confirmed.