Bombay High Court
Prabhakar S/O Shankar Nikam vs Satyabhama W/O Prabhakar Nikam on 28 March, 2008
Equivalent citations: 2008(3)MHLJ627
Author: C.L. Pangarkar
Bench: C.L. Pangarkar
JUDGMENT C.L. Pangarkar, J.
1. This is an appeal by the original petitioner, who had filed a petition for divorce.
2. The facts giving rise to this appeal are as under The appellant/petitioner was married to the respondent on 24/5/1983. They have a son by name Vivek who is in the custody of the respondent. After the marriage, the respondent had come to reside with the appellant/petitioner. While respondent was living with the appellant, he did not give any reason to make any grievance against him. He submits that respondent, however, was not desirous of leading happy life with the appellant. She was in the habit of going back to her parents off and on without any reason. She was also in the habit of picking up quarrels. She was behaving in arrogant manner and used to insult the elderly persons in the family. The respondent met with an accident in the year 1989. She was given immediately medical treatment for the same. After she recovered, she went to her parents house. Since then she did not come back. The appellant tried to bring the respondent back to his house. Appellant submits that the respondent has treated him with cruelty and has, without any reason, withdrawn herself from his company.
3. The respondent resisted the petition by filing written statement. She admitted the relationship and countered all allegations made against her. It is the contention of the respondent that she was ill treated by the appellant and was being forced to bring dowry from her parents. Her parents, however, could not fulfill the demand. It is the contention of the respondent that she had tried to end her life due to the ill-treatment meted out to her. She, however, did not disclose this fact to others because of the fact that she did not want to severe the relations with the petitioner. All efforts on the part of the mediators failed. She submits that it was the appellant who treated her with cruelty and she has a reasonable cause to live separately from the appellant.
4. The learned judge of the trial court found that the appellant had failed to prove cruelty as well as desertion. He, however, found that since the marriage has irretrievably broken, the appellant was entitled for a decree of divorce. Being aggrieved by that, the respondent preferred an appeal before the District Judge. The Additional District Judge, who heard the appeal set Second Appeal No. 351 of 1998. 4 aside the judgment and decree passed by the Trial court and dismissed the application, in view of the fact that the trial court could not have passed the decree for divorce since it was found that the case for divorce was not made out and the appellant had failed to prove the cruelty as well as desertion.
5. Being aggrieved by that judgment, the petitioner has now preferred this second appeal.
6. The appeal was admitted on ground No. 7 by this Court, as mentioned in memo of appeal. The said ground No. 7 has to be treated as substantial question of law. The ground reads as follows.
Whether the Lower Appellate court is justified in not granting alternative relief to petitioner as envisaged under Section 13A and Section 10 of the Hindu Marriage Act, 1955
7. The learned judge of the trial court had specifically recorded a finding that the petitioner i.e. the present appellant had failed to establish desertion and cruelty. He, however, had passed a decree for divorce because he found that the marriage has irretrievably broken. The original respondent -wife preferred appeal, as decree for divorce was passed. The appellant husband, however, did not prefer any appeal or cross-objection against the finding on the question of cruelty and desertion. The learned judge of the first appellate court, therefore, took that finding as a conclusive one. Since that finding was not challenged before the first appellate court, it is clear that the finding has assumed finality.
8. It is thus clear that the petitioner/appellant has failed to prove the case of cruelty or desertion. Shri Patil, learned Counsel for the appellant submits that even though that is so, the fact is that the husband and wife have not been living together and their relations are extremely strained. He submits that there is, therefore, sufficient ground to pass a decree for judicial separation. He submits that the first appellate court, therefore, should have at least passed a decree for judicial separation relying on provisions of Section 13A of the Hindu Marriage Act, 1955. He submits that the Legislature intended to grant a decree for judicial separation in certain cases where a decree for divorce cannot be granted. To decide the controversy it would be necessary to bear in mind the provisions of Section 13A of the Act, which reads as follows.
13-A. Alternative relief in divorce proceedings.-In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in Clauses (ii), (vi) and (vii) of Sub-section (1) of Section 13, the Court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.
This section cannot be interpreted to mean that the court can or ought to grant a decree for judicial separation where it cannot or does not grant decree for divorce. If the Section is interpreted in the way as suggested, every petition may either end in a decree for divorce or judicial separation. There would be no occasion to dismiss the petition for divorce at all. The Legislature certainly did not intend to grant decree for judicial separation even where no ground for divorce was made out. Therefore, to my mind, the Section has to be interpreted differently. What section envisages is that even where ground for divorce is made out, the court may refuse decree for divorce and instead grant a decree for judicial separation. Therefore, essentially the appellant must first make out a ground for divorce and then the court may exercise its discretion to grant decree for judicial separation or a decree for divorce. When no ground is at all made out, there could be no occasion to use the discretion. In the instant case, we have found that the finding on issue of desertion and cruelty has gone against the appellant/ petitioner and that has assumed finality. There, therefore, exists no ground for divorce. Necessarily, therefore, the court cannot exercise the discretion of granting decree for judicial separation. There is, therefore, no substance in the appeal. It is dismissed. No order as to costs.