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1996 DIGILAW 232 (BOM)

Narayan Shankar Gokhale v. Sudha Narayan Gokhale

1996-06-03

A.S.VENKATACHALA MOORTHY, M.L.DUDHAT

body1996
JUDGMENT - M.L. DUDHAT, J. :---Being aggrieved by the Judgment and Decree dated 16-4-1994 passed by the learned Judge of the Family Court at Pune in P.A. No. 641 of 1992, the appellant-husband has filed this first appeal. Few facts which are necessary for the disposal of this appeal are as under : 2. The appellant who is a school teacher got married with the respondent, who was also a school teacher, on 16th May, 1981 as per the rites and ceremonies of Hindu religion. After the marriage, there were differences of opinion, due to which the relations between the parties were strained and, therefore, it is the case of the appellant, that the respondent had deserted him. It was also the case of the appellant that he suffered mental cruelty at the behest of the respondent, due to which he became entitled to get divorce under section 13(1-A) of the Hindu Marriage Act, 1955. The appellant, therefore, filed appeal for divorce on 20th December, 1990, against the respondent-wife for divorce, more particularly, on the grounds of desertion and cruelty. The trial Court, after hearing both the sides, held that the appellant had suffered cruelty at the hands of the respondent. However, the trial Court passed the decree of judicial separation instead of the decree for divorce. 3. Against the aforesaid Judgment and Decree, the respondent-wife preferred an appeal before this High Court, being Family Court Appeal No. 65 of 1992. The aforesaid appeal came up for admission before this Court and this Court by its judgment dated 20th September, 1993 confirmed the decree passed by the trial Court and dismissed the appeal with no order as to costs. 4. After the aforesaid decree passed by this High Court, the appellant preferred the present petition being P.A. No. 641 of 1992 for divorce under section 13(1-A)(i) of the Hindu Marriage Act, 1955. In this petition, the appellant contended that after the passing of the decree for Judicial Separation there was no cohabitation between the appellant and the respondent and, therefore, the appellant claimed that he was entitled to the decree for divorce. In this petition, the appellant contended that after the passing of the decree for Judicial Separation there was no cohabitation between the appellant and the respondent and, therefore, the appellant claimed that he was entitled to the decree for divorce. The respondent, by her written-statement which is at Exhibit 18, contended that after the admission of the petition of the appellant, she showed her willingness to reside with the appellant and the appellant also agreed to reside with her, more particularly in view of the fact that his two children from his earlier wife had become independent. It is further stated that she was following all the terms and conditions led down by her husband and in view of the fact that there is cohabitation between her and her husband, the appellant is not entitled to get the decree of divorce. 5. After allowing both the parties to lead the evidence and after hearing both the sides on merits, the Family Court, by its judgment and decree dated 16th April, 1994 dismissed the petition filed by the appellant on the ground that the petition filed by the appellant is barred by the provisions of the Hindu Marriage Act, 1955, more particularly under section 23(1)(b) of the said Act and also on the ground that after the decree of judicial separation, there was resumption of cohabitation between the parties. 6. Against this judgment and decree, the husband, appellant herein, has preferred the present appeal. Mr. Rajesh Behere, the learned Counsel appearing on behalf of the appellant, contended that the appellant has filed this petition under section 13(1-A)(i) of the Hindu Marriage Act on the ground that there is no resumption of cohabitation between the parties for a period of more than one year after the passing of the decree of judicial separation and in respect of that fact there is no evidence on record to show that the parties cohabited together after the passing of the decree for judicial separation. The Family Court came to the conclusion that parties cohabited together only on the basis of the oral evidence to the effect that on few occasions, the appellant and the respondent came together, either at the time of Ganpati festival or for taking fruit juice. The Family Court came to the conclusion that parties cohabited together only on the basis of the oral evidence to the effect that on few occasions, the appellant and the respondent came together, either at the time of Ganpati festival or for taking fruit juice. It is contended on behalf of the appellant that even taking into consideration the evidence relied upon by the respondent, it is difficult to come to the conclusion that after passing of the decree of judicial separation, the appellant and the respondent cohabited together. As against this, Mr. Anturkar, the learned Counsel for the respondent, contended that in fact after the passing of the decree of judicial separation, the appellant and the respondent cohabited together and, therefore, the trial Court was right in dismissing the petition filed by the appellant. 7. The only important question to be decided in this matter is whether after the passing of the decree of judicial separation, the appellant and the respondent cohabited together or not. If we come to the conclusion that they have not cohabited together, then the appellant will be entitled to the decree of divorce under section 13(1-A)(i) of the Hindu Marriage Act, 1955. In this matter, apart from the petition and the reply in the deposition, the appellant has specifically stated that there was no cohabitation between him and the respondent from 17-9-1991 till the date of the petition. It is true that in the cross-examination, some sort of suggestion was made to the effect that the respondent used to come to Pune on every Saturday in the evening for visiting the appellant and thereafter used to reach to her place on Monday morning. However, the said suggestion in the cross-examination is denied by the appellant. Even in her deposition, the respondent has stated that : "On every Sunday we met each other. He did not take me to his house. Petitioner was behaving with me as husband. We were moving to juice bars and Ganpati Temple. In September 1992, we met each other in the house of her friend Vidula Bhate. Taking this deposition of the respondent at the highest, this witness herself admits that when she came to see the appellant-husband she never went to the house of the appellant, but they only visited Juice Bars, Ganpati Temple and on one occasion they went to the place of a friend of the respondent. Taking this deposition of the respondent at the highest, this witness herself admits that when she came to see the appellant-husband she never went to the house of the appellant, but they only visited Juice Bars, Ganpati Temple and on one occasion they went to the place of a friend of the respondent. The respondent has further stated that on those occasions, the appellant was behaving as her husband. According to our opinion, this is of no consequence, firstly because, inspite of the passing of the decree of judicial separation, the appellant continues to be the husband of the respondent till the decree of divorce is obtained. What is contemplated under section 13(1-A)(i) of the Hindu Marriage Act, 1955 is that after the passing of the decree of judicial separation, they (i.e. the parties to the marriage) have not cohabited together? According to our opinion, merely because on few occasions, the parties (i.e. the appellant and the respondent) came together either in the juice bar or at the Ganpati Temple, that will not amount to cohabitation. Cohabitation, as defined by the Chambers 12th Century Dictionary is as under : Cohabit - means to dwell together as husband and wife or as if husband and wife and word "cohabitant" means one dwelling with other. Merely because the parties in this case on some occasions went to juice bar or Ganpati Temple or at some friend's place together, that will not amount to "cohabitation" by the appellant and the respondent. In view of this according to our opinion, there is no evidence whatsoever to show that the appellant and the respondent cohabited together and, therefore, the decree passed by the Family Court is liable to be set aside in view of the fact that decree of judicial separation was already passed on 17-9-1991 and thereafter the appellant and the respondent have not cohabited together till the filling of the present petition for divorce. 8. Hence this appeal is allowed. The Judgment and Decree passed by the Family Court at Pune on 16th April, 1994 in P.A. No. 641 of 1992 is set aside. The marriage solemnized between the appellant and the respondent stands dissolved and decree with consequential relief to the decree of judicial separation in P.A. No. 641 of 1992 is awarded with no order as to costs. Certified copy expedited. The marriage solemnized between the appellant and the respondent stands dissolved and decree with consequential relief to the decree of judicial separation in P.A. No. 641 of 1992 is awarded with no order as to costs. Certified copy expedited. Parties are authorised to act on an ordinary copy of this order duly authenticated by the Personal Secretary of this Court. Appeal allowed.