(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) The present appeals arise against the judgement and order passed by the Family Court dated 16.06.2003 in Family Suit No. 996 of 2000 with Misc. Civil Application No. 33 of 2000, whereby the marriage between the Appellant and Respondent is dissolved and the respondent
- husband is further directed to pay the maintenance at the rate of Rs.4,000/- per month. Below Misc. Civil Application No. 33 of 2000, it is ordered that the children be handed over to the wife on every Sunday from 11.00 a.m. to 5.00 p.m. and in Diwali vacation custody of children be handed over for a week and in Summer vacation for 15 days.
The short facts are that the marriage of the appellant with the respondent (for the sake of convenience, the appellant shall be referred to as 'the wife' and the respondent shall be referred to as 'the husband') had taken place on 26.05.1989. Out of wedlock, one daughter "Priyal" and one son "Harsh" were born and initially the marriage life was good. However, as the husband was in medical professional and he was of the view that he was getting good income, he insisted the wife to leave job and to take care of children. But, as the wife was not coming back to the home in time after completion of service, it gave rise to the dispute between the husband and wife. As per the wife, she was compelled to leave the house and stay with the parents. There was also police complaint and ultimately, the said situation continued for a considerable time.
Under these circumstances, the husband contending that the wife has deserted him, and filed the suit being Family Suit No. 396 of 2000 for the dissolution of marriage. It may also be recorded that the wife preferred Civil Misc. Application No. 33 of 2000 for getting custody of the children which was with the husband on the ground that she is natural guardian of both the children and if the children are kept with the husband, there will not be proper care of their future and therefore, the custody be given to the wife.
The Learned Judge of the Family Court has, at the conclusion of the proceedings, passed the above referred judgement and decree for dissolution of marriage as well as the order of giving custody of the children to the wife for a limited period. Under these circumstances, the present appeal before this Court.
We may state that the wife has preferred appeal being First Appeal No. 725 of 2004 for challenging the decree for dissolution of marriage and First Appeal No. 726 of 2004 for not giving permanent custody of children. Whereas the husband has preferred First Appeal No. 1342 of 2004 against the order of the Family Court for maintenance of Rs.4,000/- per month.
We have heard Learned Counsel Mr. Balsare appearing for the wife and Ms.Contractor with Mr. Nanavati for the husband. We have considered the record and proceedings. We have also considered the judgement and order and the reasons recorded by the Learned Judge of the Family Court.
The evidence led on behalf of the husband, if considered with the evidence of his mother, it appears from the record that the following aspects have been proved and rather there is no dispute on that.
The marriage between the husband and the wife was in the year 1989.
One daughter and one son were born out of the wedlock.
The husband initially was serving as doctor in Government Hospital and thereafter, started his own practice as medical professional. The wife, prior to marriage, was working with the State Government in P.W.D. Department and she continued the service even after the marriage.
The dispute arose somewhere in the year 1996 between the husband and the wife and since then, both are staying separate.
The only question was to be considered by the Lower Court as to whether the wife has deserted the husband or not or the husband has created such circumstances compelling the wife to leave the home of the husband, based on the legitimate right available. Before we further consider the factual aspect we may consider the statutory provisions as provided under section 13 (1)(i-b) of the Marriage Act which reads as under :
13 (i-b) : has deserted the petitioner for a period of not less than two years immediately preceding the presentation of the petition.
The aforesaid shows that if the respondent may be husband or wife has deserted the petitioner for a continuous period of not less than two years immediately preceding presentation of the petition, it may be a valid ground for dissolution of the marriage. Therefore, it will be for the Court to examine that whether that desertion is of the petitioner by the other party, may be husband or wife, as the case may be, and the second aspect to be considered is if there is desertion, whether such desertion is for a continuous period of not less than two years immediately preceding presentation of the petition or not. As observed earlier, it is an undisputed position that the husband and wife both were living separately since 1996, therefore, the period of two years and more, so far as living separately is satisfied but the language shows that it is not on account of separate living of husband and wife for a period of two years, there is a valid ground seeking dissolution of marriage. But it is required for the petitioner to prove that the respondent has deserted the petitioner and thereafter, the question of continuous period of not less than two years immediately preceding presentation of the petition may be required to be considered. The resultant effect is that whether the petitioner has been deserted by the respondent or in other words, whether the other party has deserted the petitioner or not is the main aspects to be proved by the petitioner who is seeking the dissolution of marriage.
The explanation as provided under section 13, which has come into force w.e.f. 27.5.1976, reads as under :-
"Explanation : - In this sub section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly."
The aforesaid shows that the words "without reasonable cause" and "without the consent or against the wish of such party" are relevant to be considered while giving effect to the "desertion". Naturally where there is no consent or against the wish of the petitioner for staying separate, the same may not assume much importance, because if it is with consent or as per the wish of the petitioner, possibly the grievance or the dispute may not arise at all or such contingency may not be required to be considered by the Court. Therefore, the most relevant aspect would be whether staying separate or living separate is without reasonable cause or not?
As per the law dictionary "The Law Lexicon" the meaning of the word "desertion" is in general, the act by which a person abandons and forsakes, without justification, a station or condition of public or social life, renouncing its responsibilities and evading its duties. In matrimonial law, desertion means continual absence from cohabitation contrary to the will, or without the consent, of the party charging it and without reasonable cause. In the very dictionary it has been further provided that "desertion" means it is not to be tested by merely ascertaining which party left the matrimonial home first. The party who intends to bring the cohabitation to an end and whose conduct in reality caused its termination, commits the act of desertion. i.e. there is no substantial difference between the case of a husband who intends to put an end to the state of cohabitation and does so by leaving his wife to separate from him. The aforesaid shows that the desertion would mean the abandonment against the will of the person charging but in order to succeed on a plea that the desertion by the respondent was voluntarily excluding the situation created by the petitioner compelling the respondent to leave the home. Therefore, it would be relevant to further examine as to whether leaving of the home is a voluntary action or is a reasonable cause or without reasonable cause. If the action of abandoning or leaving of the home is without reasonable cause, it may be termed as voluntary but if the same is with a reasonable cause or on account of circumstances so created by the petitioner compelling the respondent to leave the home it cannot be termed as a desertion in the eye of law entitling the petitioner to invoke the ground under section 13(1)(i-b) of the Hindu Marriage Act (herein after referred to as 'the Act') It is in this light of the aforesaid legal position we have further examined the facts of the present case. If the evidence led on behalf of the petitioner husband is considered read with the evidence of the respondent wife, it appears that both the parties made allegations against one another inasmuch as as per the husband, the wife was not coming in time and was coming late and was not attending the children and the family. Whereas as per the wife, she was in Government service and more particularly, looking after the treasury, in-charge and therefore, on account of duty as a Government servant she had regularly to work upto late hours and the delay, if any, while coming back was because of the discharging of the duty as the Government servant. She has further deposed and it is further come on evidence of the wife that there was no special arrangement of vehicle for joining the duty and while coming back she had to make use of the public transportation and therefore, such also was resulting into coming back to the home at late hours. If the evidence of the husband is considered with the evidence of witness at Exh. 66, Sulochanaben Kantilal Shah, mother of the husband, who was examined by the Petitioner, in support of his case, she has stated that his daughter-in-law i.e. wife was working in P.W.D. and she used to leave the home at 9.00 to 9.30 in the morning and she was coming back to the home at 7.00 to 8.00 o'clock. The aforesaid is the evidence in the examination in chief by the mother of the husband. This part of the evidence cannot be challenged by the husband because Sulochanaben was examined by him as his own witness. It further appears from the evidence of the said witness, mother of the husband at Exh. 66 that the dispute between the husband and wife was on account on the delay in coming back at the residence. The aforesaid aspect is further required to be considered in light of the pleadings made by the husband in the petition that he had insisted the wife to leave the job but she did not agree for leaving of the job. It has also come on record that thereafter on Monday when she came late, there was further aggravation of the dispute and on account of the same, the wife had to leave the home of the husband and had to stay at the parents home.
The continuation of the matrimonial life of the husband and wife depends upon the mutual understanding by both the parties and the adjustment as per the circumstances for the betterment of the family. But, at the same time even after the marriage of the husband or wife, as the case may be, both are entitled to a reasonable expectation from his or her spouse. We cannot ignore the aspect of the rise in the level of the education amongst the female members of the society and also their involvement in the functioning of the society and also the other activity. If the husband and wife both are working or in service prior to the marriage, the insistence by either side to leave the service and to work as only house wife cannot be said as a reasonable expectation by the husband just on a mere ground to take care of the family. It is a different matter if wife after understanding the circumstances voluntary decides to leave the job for the betterment of the family. But, the question of the reasonable ground for desertion is to be decided which meets with the test of reasonable behaviour and the reasonable expectation by both the sides, may be in capacity of the husband and or wife. If the wife is already in service prior to the marriage and after marriage, she is continuing in service, the husband cannot compel to leave the service and if such a insistence made by the husband, it cannot be said as reasonable expectation of a wife from a husband but can rather be termed as unreasonable expectation by husband from wife. After marriage such would equally apply in case of the husband, if the wife insisted for leaving job by the husband. We may make it clear that we are not concerned with the voluntary action or volition shown by the husband or the wife to leave the job. In the present case, the aspect to be considered is whether the insistence by the husband or the wife, as the case may be, to leave job and to only depend upon the financial aspect or the income of other side could be said as reasonable or not.
The evidence on record goes to show that the dispute between the husband and wife arose on account of the delay in coming back after discharging duty in service by the respondent - wife and the insistence by the husband to leave the job. The say of the wife is that she was driven away from the house by the husband, whereas the husband has said that she had left the home of the husband on her own, but even if it is considered that the wife, under the above referred circumstances namely; that the husband was making grievance in coming late by the wife after completing her service and the dispute arose on account of the same coupled with the circumstances that the husband was insisting for leaving the job by the wife, both can be said as an unreasonable approach on the part of the husband. Even if it is considered, for the sake of examination, that the wife, under these circumstances, was compelled to leave the house of the husband, it cannot be said as abandonment of the house of the husband without reasonable cause. Once it is not an abandonment of the house without reasonable cause, it cannot be termed as desertion by the wife of the husband.
In our view, the learned Judge of the Family Court has not properly appreciated the evidence and has proceeded on the basis to consider the matter that there was irretrievable break-down of the marriage. If the evidence does not show the ground for desertion or dissolution of marriage, which was pressed in service by the petitioner, certainly the decree for dissolution of marriage could not have been passed by the lower Court. In view of the aforesaid observations and discussion, we find that the decree of divorce order passed by the lower Court cannot be sustained in the eye of law.
It also appears that the lower Court has committed error in awarding maintenance to the wife. The contention of the husband that the lower Court has awarded maintenance even it was not demanded is with substance, inasmuch as in the judgement the learned Judge himself has mentioned at paragraph 27 that the maintenance was not demanded by the wife, but as the Court had passed the order for interim maintenance, he has enhanced the maintenance.
In our view, on two reasons, the aforesaid order cannot be sustained; one is that the wife, as per the evidence on record, is working with the State Government and she has her own source of maintenance. Further, she has also not demanded for maintenance as recorded by the Court in the judgement. Therefore, on both the counts, the order of maintenance passed by the lower Court cannot be sustained.
The aforesaid would lead us to examine the question of custody of the children demanded by the wife on permanent basis. It has come on record that the children throughout have remained with the husband and the learned Judge has mentioned that the daughter is aged 13 years and the son is aged 10 years at paragraph 14 of the judgement. The judgement was delivered in 2003 and if the span of 9 years by now in 2012 is considered, the daughter has become major by now and so will be the son. Therefore, both the children have become major and since throughout they have stayed with the husband and the right of visitation has already been given to the wife as mother as prescribed in the order, we find that in view of the peculiar facts and circumstances, it would not be a case to direct for custody of the children. In any event, the question of custody of the children would also not arise, since they have become major by now.
Under these circumstances, the order passed on the aspect of custody of the children does not deserve to be interfered with.
In view of the aforesaid observations and discussion, the judgement and decree for dissolution of marriage as well as for ordering maintenance is set aside with the further observations that the maintenance already paid shall not be required to be refunded by the wife, but if any maintenance has remained unpaid or for future period, she would not be entitled to any maintenance from the husband. The order passed for giving custody for limited period would also not survive, since the children have become major by now.
First Appeal No.725 of 2004 as well as First Appeal No.1342 of 2004 are partly allowed to the aforesaid extent and First Appeal No.726 of 2004 is dismissed.
The learned Counsel for respondent husband at this stage prays that the operation and implementation of the judgement be suspended for some time, so as to enable her client to approach before the higher forum. As the decree of dissolution is set aside and if the operation is stayed, it may create irreversible situation and, therefore, we are not inclined to accept the request. Hence, the request is declined.
(Jayant Patel, J.) (C. L. Soni, J.) *fskazi/vinod Top