(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA) These two First Appeals were heard together as those have been preferred against the selfsame judgment and decree passed by the learned trial Judge thereby granting a decree for judicial separation on an application for divorce filed by the husband on the ground of desertion and cruelty. The learned Family Court has held that the allegation of cruelty has not been proved but the husband has proved desertion and on that ground, instead of passing a decree for divorce, the one for judicial separation has been passed.
Being dissatisfied, the husband has preferred First Appeal No. 2713 of 2008 thereby praying for converting the decree for judicial separation into one for divorce while the wife has filed a separate appeal, being First Appeal No. 2109 of 2009, thereby praying for dismissal of the suit.
The case made out by the husband in the application for divorce may be summed up thus:-
[a]. The parties were married on 9th May 1997 according to Hindu rites and customs. The initial 15 days after the marriage went peacefully but thereafter the wife started quarrelling on minor issues and used to insult the husband. The wife did not do household works and also did not permit the husband to have physical relation. The wife used to go to her parents' house without any permission of the husband or intimation to him. She misbehaved with the husband and his family members when she was asked to come back on the death of the sister of the husband.
[b]. One Mr. Khodabhai once came to the residence of the husband to take back the wife to her father's house but since the husband did not know him, he refused to send the wife with him. On this ground, the wife became angry and threatened the husband that she would commit suicide. Ultimately, on the request of the father of the wife, she was permitted to accompany Mr. Khodabhai.
[c]. Immediately after the marriage, the wife conceived and was asked by the husband to come back but she did not return. The family members of the husband decided to perform 'shrimand' ceremony of the wife, but she did not come. The wife threatened that if he forced her to come back to her matrimonial home, the legs of the husband would be broken. The wife also did not intimate the husband about the birth of the daughter and when the husband came to know about the birth of the daughter, he and other members of his family went to see the child but the wife and her parents insulted the husband and her parents threatened them and did not permit them to see the child. They were threatened that they would be roped in false cases.
[d]. Thereafter, the husband tried on many occasions to bring the wife back to the matrimonial home, but she refused to come back without any justifiable reason. The aforesaid behaviour on the part of the wife amounted not only to cruelty but it was also the case of desertion for a period of more than 2 years. Hence the suit.
The suit was contested by the wife by filing written statement thereby denying all the material allegations made in the plaint, and the defence of the wife may be summed up thus:
(i). After the marriage, the wife came to the husband's house and used to perform all her duties properly as a wife but the husband and the members of his family used to quarrel with her on minor issues. They used to harass the wife mentally and physically alleging insufficiency of dowry and used to pressurize her to bring more amount of dowry. Thus, finding no other way, the wife had to go back to her parental house where she gave birth to a girl child.
(ii). The husband was well informed about the birth of the child but neither he nor his parents came to see the child. On 2nd September 2001 when the wife was at her parental house, the husband came with divorce papers and forced the wife to sign on them. But she having refused to sign on those papers, she was told that if she did not want divorce, she should bring dowry according to their demand and only on that condition, she would be taken back. The brother and mother of the wife expressed their inability to give dowry as demanded; as a result, the husband became annoyed and threatened that if she came back without dowry, she would be set ablaze. Thus, the wife had justifiable reason for not coming back to the matrimonial home, though the wife was ready and willing to go to the husband and perform all her duties as wife.
At the time of hearing of the suit, apart from husband, his father and the maternal uncle of the wife gave evidence in support of the husband while the respondent alone deposed in support of her defence.
As indicated earlier, the learned Family Court, by the judgment and decree impugned herein, disbelieved the case of cruelty but granted decree of judicial separation only on the ground of desertion.
Before this Court, we tried for reconciliation but our endeavour failed. As a result, we have heard the appeals on merits. At the time of reconciliation-process, the husband refused to condone the allegations of cruelty and desertion although the wife had shown her willingness to go back.
After hearing the learned counsel for the parties and after going through the order impugned in this appeal, we find that the learned Family Court was of the view that there was irretrievable breakdown of the marriage which was not curable. The learned Judge further held that the husband had failed to prove that the wife had treated him with cruelty, but passed a decree on the ground of dessertion.
It appears from record that the parties were married in the month of May 1997. The wife wanted to go back to her father's house on the 8th day of 'Navratri' but on the request of the husband, she ultimately left on the day of 'Dusshera'.
It further appears from the evidence on record that thereafter she had not come back.
Although the wife tried to make out a case that after 'Diwaali' she went but the members of the husband's family did not permit her to stay unless she brought additional dowry, we, however, find that such allegation has not been proved by any cogent evidence. The person who accompanied her on that occasion could be examined to substantiate such fact. It appears from the deposition of the wife that she had faith in 'Goga bappa' and according to her, she refused to go back to the husband by keeping faith on 'Goga bappa'.
On consideration of the materials on record, we find that there is no dispute that the wife left on the date of 'Dusshera' of the year 1997, which had fallen on 11th October of that year and the suit had been filed on November 4, 1999. From the evidence on record, it appears that the daughter of the parties was born in the month of March 1998 but the wife refused to return to the husband even for performing 'shrimand' ceremony before the birth of the child. From the evidence on record, we agree with the learned trial Judge that the wife had left the husband's house in the month of October 1997 with an intention not to come back and thereafter, she never came back. It appears that she even did not permit the husband and members of his family to see the child when they visited her paternal house. As regards the allegation of demand of dowry, in the absence of any evidence of independent witness, we are unable to believe such statement of the wife. Even the maternal uncle of the wife deposed in support of the plaint case that the husband tried to bring her back but the wife refused to come. The said witness did not support the case of demand of dowry alleged by the wife.
Therefore, we find that in the facts of the present case, atleast the ground of desertion for two years prior to the presentation of the divorce-petition has been well proved and that itself affords a ground for passing a decree of divorce.
Although the parties were married in the year 1997, they stayed together only for approximately six months and thereafter they have been living separately. In such a situation, in our view, no purpose will be served by passing a decree for judicial separation by keeping the dispute unresolved and compelling the parties to involve in further litigations. It appears that there is no chance of reconciliation and thus, there is no justification of passing a decree for judicial separation instead of the one for divorce available to the husband under the law.
Although Ms. Kumar, the learned advocate appearing on behalf of the wife, tried to convince us that the wife being ready and willing to go back to the matrimonial home, we should not convert the decree of judicial separation to one for divorce but should dismiss the suit, we are not at all impressed by such submission. In our opinion, the willingness on the part of the wife within the statutory period of desertion has not been proved and thus, once a right accrued in favour of one of the spouses to have a decree of divorce, such right cannot be taken away merely on the basis of willingness expressed by the defaulting spouse after accrual of such rights in favour of the other one. Therefore, the willingness at this stage will be of no avail to the wife to overcome the effect of the wrong already done to the husband.
On consideration of the entire materials on record, we thus find that it is a fit case where the learned Family Court should have granted a decree for divorce once desertion for more than two years before presentation of the divorce petition has been proved and there was no justification of passing a decree for judicial separation in the facts of the present case.
Since we propose to grant a decree for divorce, we also intend to pass a decree for permanent alimony in favour of the wife.
It appears from the record that in the course of these proceedings, already an order of maintenance of Rs. 2000/- a month for the wife and the minor daughter, who is now staying with her mother, has been passed. This Court has also passed a direction upon the husband to deposit a further sum of Rs.1 lakh, which has been kept in Fixed Deposit for bearing the expenses of education of the daughter who is now studying in Class IX.
We are of the view that in the facts of the present case, after taking into consideration the conduct of the wife, it is a fit case where the husband should be directed to make a onetime payment of Rs.3 lakh to the wife towards her future permanent alimony in addition to Rs.1 lakh already lying in the Fixed Deposit for the education of the daughter. The interest accruing from the said amount of Rs. 1 lakh should be spent for the education of the daughter until she attains majority. It is needless to mention that after attainment of majority, it will be the duty of the father to bear all her future maintenance and the expenses for her marriage. The husband will not be entitled to get back the amount of Rs.1 lakh already invested in the name of the daughter. The husband is directed to pay further amount of Rs.3 lakh to the wife within two months from today.
Both the appeals are thus disposed of. The decree of judicial separation passed by the learned Family Court is converted into one of divorce, subject to payment of permanent alimony stated hereinabove and the decree of divorce will be effective only on payment of such onetime permanent alimony in the name of the wife by bank draft of any nationalized bank.
The appeal filed by the husband is allowed to the extent indicated above and the one filed by the wife is dismissed. In the facts and circumstances of the case, the parties shall bear their own costs.
[BHASKAR BHATTACHARYA, ACTING C.J.] mathew [J.B.PARDIWALA. J.] Top