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Showing contexts for: constructive desertion in Dina Dinshaw Merchant vs Dinshaw Ardeshir Merchant on 6 March, 1969Matching Fragments
The Delegates answered this issue by majority in the negative. As already stated, having regard to the findings made on the issues arising on the written statement, a decree for divorce having been passed, the learned Judge held that the defendant was not entitled to a decree for judicial separation and dismissed the counter-claim.
7. Mr. Banaji for the defendant has made the following contentions in this appeal:--
(1) The withdrawal by the plaintiff of his Suit No. 45 of 1959 in April 1961 amounted to an abandonment by the plaintiff of his right to rely upon the previous acts of cruelty committed by the defendant. These previous acts of cruelty could not be good cause of action for claim for divorce-on the ground of constructive desertion. The reconciliation which resulted into the withdrawal of the above suit in April 1961 brought the previous constructive desertion, if any, completely at an end. In law, the plaintiff lost all rights to rely upon the previous alleged acts of cruelty. The result of the withdrawal of the previous suit was that it was not open to the plaintiff to contend that constructive desertion had commenced at any date prior to April 1961. This was in law the result of the withdrawal of the suit This being the true legal position, the trial Court should have himself, as on demurrer or in limine, held that constructive desertion had not existed for a period of three years Immediately prior to the date of the suit. The learned trial Judge should "not have left the matter of the decision of Issues Nos. 3 and 4 arising on the written statement for the decision of the Delegates as questions of facts; he should have himself held that the result of withdrawal of Suit No. 45 of 1959 in April 1961 was that in law all the prior acts of cruelty and desertion had ceased to be available to the plaintiff and the suit had been filed prematurely and was, therefore, liable to be dismissed. The issues should have been answered in the above manner. In the alternative, the submission was that, having regard fo the above position in law, the learned trial Judge should have directed the Delegates that the plaintiff was not entitled to rely upon any acts of cruelty of the defendant prior to April 1961, He should have accordingly directed the Delegates to answer Issues Nos. 3 and 4 in the negative, (2) The second contention was that the findings of the Delegates on these two Issues were wholly opposed to the evidence on record and, therefore perverse and contrary to law. No reasonable body of delegates could have made the findings. The Delegates have failed to take notice of overwhelming evidence led on behalf of the defendant and also brought out in the cross-examination of the plaintiff's witnesses, which went to prove that the plaintiff and the defendant cohabited together and had marital relation at the Pali Hill residence upto March 1962. This court, therefore, should take notice of that evidence and hold that the defendant was never guilty of any constructive desertion; and, on the contrary, the plaintiff and the defendant lived and cohabited together till March 1962.
Now, as already stated above, there is no dispute between the parties as regards the facts necessary to be proved to establish constructive desertion. There can be no: dispute that the parties living under the same roof may have separated and may have ceased to cohabit togethers and even in those circumstances can prove that there had been constructive desertion by one spouse as against the other,
11. The first question raised by Mr. Banaji was that the withdrawal of Suit No. 45 of 1959 had the legal consequence of ending the alleged constructive desertion by the defendant during the previous period. In that connection the argument was two-fold? (1) that in law the plaintiff could not rely upon the previous acts on the ground of estoppel and/or the principles to be found in Section 11 and Order 23, Rule 1 of the Code of Civil Procedure and (2) that the withdrawal was the result of such reconciliation as ended the previous separation and also the animus deserendi, the intention to bring cohabita-tion permanently to an end.
15. In this connection it may be noticed that the cause of action in respect of desertion and/or constructive desertion remains inchoate till the date of the institution of the suit for divorce on that ground. As claim for divorce was not made in the previous suit, the cause of action and/or the bundle of facts on which reliance could be placed for relief of divorce on the ground of constructive desertion had remained inchoate and accordingly cannot be held to have been made the subject-matter of the previously instituted and withdrawn suit No. 45 of 1969.
The submission of Mr. Banaji was that the finding about constructive desertion is always an inference of law from facts. The finding of the delegates on the above facts related to the finding that the defendant was guilty of constructive desertion. Therefore, the decision of the Delegates was contrary to law. The further submission of Mr. Banaji was that the finding of the Delegates was contrary to overwhelming evidence and was such as no reasonable body of Delegates could arrive at having regard to the evidence. The finding was, therefore, arrived at, by defective procedure and investigation of the case, which had produced an error and defect in the decision of the case upon the merits. Now, in connection with this submission it first requires to be noticed that the Parsi Marriage and Divorce Act is special law and enacts procedure for decision of matrimonial disputes. Including the question of divorce amongst the Parsis. Admittedly the Act clearly provides by Section 46 that 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. Even as regards appeals to the High Court, jurisdiction has been circumscribed by the phrase "on no other ground" in the last part of Sub-section (1) of Section 47. The word "law" appears in both the above sections. Now, it is true that it is well settled that the findings of facts arrived at without any evidence at all on record may in law be treated as "erroneous". In a particular, exceptional case, it may be proved in an appeal before the High Court that the findings of the delegates had resulted from misconduct. Towards proving misconduct, reliance may be placed on the fact that the finding was impossible having regard to overwhelming evidence in favour of the party alleging misconduct, On such an argument . being made, the question of misconduct may be decided by this Court and consequently a conclusion may be arrived at that the findings of the delegates were Incorrect.