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2012 DIGILAW 2242 (RAJ)

Falima Jesinta Lusi v. Alexzendor Philips

2012-11-30

DINESH MAHESHWARI, VINEET KOTHARI

body2012
JUDGMENT 1. - The present appeal in the matrimonial dispute by appellant Fatima jesinta Lusi against her husband Alexzendor Philips is directed against the decree of divorce by the Family Court No. 1, jodhpur in divorce petition No. 85/2007 filed by respondent husband-Alexzendor Philips. 2. Both the parties aforesaid got married at. Jodhpur on 26.5.1993 in Church as both follow the Christian religion and out of this wedlock, a son Chirag @ Anthony was born on 28.6.1994. The divorce petition was filed by husband with the allegation that on 10.8.1995, the appellant wife went away with her dowry articles to her father's place at Ajmer and thereafter, she refused to come back to the matrimonial home with the applicant-husband and despite efforts made by the applicant-husband, the wife refused to come to the matrimonial home and on 5.1.2005 when the applicant-husband along with his relatives went to invite the family of respondent wife at Ajmer, she refused to come back with him. The husband also stated in his petition under Section 10 of the Divorce Act, 1869 that previously the divorce application by mutual consent was also filed by both the parties in the same Family Court, which was registered as case No. 355/2005, but at the stage of second motion, the respondent wife withdrew her consent for taking divorce by mutual consent on 26.1.2006 and, thereafter, the applicant husband filed the present divorce petition under Section 10 of the Act in the Family Court. The divorce petition also contained the allegations of cruelty allegedly committed by the respondent wife, that after marriage she did not keep good relations with the family members of the applicant husband and the respondent wife did not disclose the details of telephone calls received by her from Ajmer to her husband and used to say that she would live in Ajmer as her love is in Ajmer. 3. The respondent wife, the appellant before us, contested the divorce petition by filing a written statement in which she denied the allegation of cruelty and desertion and stated that the application of divorce by mutual consent was got signed by her husband under undue influence and she also stated that it was wrong to say that she threatened her husband of filing the case for dowry against him. On the contrary, she stated that the applicant-husband used to bead her and on account of such physical violence against her, she had to leave home in 1995 despite her desire to remain with the husband and such desire even now she has. It was also stated that despite death of her father on 9.3.2009 and the applicant husband was informed on telephone, but neither the husband nor anybody from his family had turned up at Ajmer on that sad occasion and accordingly it was prayed that the divorce petition deserves to be dismissed as no case of cruelty or desertion was made out. 4. The learned Family Court framed two issues, one relating to cruelty allegedly committed by the respondent wife and another for desertion by her. 5. While deciding the issue No. I on cruelty against the applicant-husband, the Court below found that the applicant-husband had failed to establish any cruel behaviour on the part of respondent wife and no evidence. was let to establish the same and consequently issue relating to cruelty was liable to be decided against the applicant-husband. However, while deciding issue No. 2 relating to desertion, the learned Family Court decided the said issue in favour of applicant husband and hold that on the basis of evidence, the applicant-husband had proved that respondent wife-had left the matrimonial home in 1995 without any adequate reasons and had refused to come back to the matrimonial home without any valid reasons. For this, the learned Family Court relied upon the statement of A/W.1 Alexzendor, husband himself and A/W.2 Teresa Philips, mother of the applicant husband. The learned Family Court found that the allegations of beating by the husband after consuming liquor was not established and the event of 2005 while the applicant-husband and his relatives went to Ajmer to give marriage invitation card of his brother showed that the applicant- husband was ready to keep alive the matrimonial relationship, however, the respondent wife was not willing to continue the same and, therefore, animus deserendi on her part was proved. Even withdrawal of consent by the respondent wife from seeking divorce by mutual consent was adversely taken by the learned Family Court. Even withdrawal of consent by the respondent wife from seeking divorce by mutual consent was adversely taken by the learned Family Court. The Family Court further took adverse view of the fact that despite direction of C.J.M. in the previous case No. 355/2005 directing both the parties to live together, the respondent wife lived with her husband on 13.6.2007 to 15.6.2007 only formally and did not maintain the relationship of husband and wife during the said stay for 3-4 days, therefore, taking the desertion from 1995 by the respondent wife, the learned Court below decided issue No. 2 in favour of applicant-husband and granted the divorce decree on 2.12.2010. 6. Being aggrieved of the same, the respondent wife has filed the present appeal before this Court under Section 19 of the Family Court Act. 7. Learned counsel for the applicant-wife, Mr. Mridul Jain with Mr. K.C. Sharma relying upon various case laws, which would be discussed hereinafter, urged that the learned Court below has grossly erred in granting divorce decree on the ground of desertion, whereas, respondent-husband had come to the Court with clearly false case that appellant-wife stayed in the matrimonial home only for four months after their marriage in 1993, whereas, even after delivery of child, Chirag on 28.6.1994, the appellant wife had stayed in the matrimonial home upto 1995, for about two years and, thereafter, the due to circumstance beyond her control and because of physical violence by the husband and demand of dowry, she had to leave the matrimonial home under the forced circumstance and, therefore, it cannot be said that animus deserendi could be attributed to her and, therefore, the learned Court below has erred in arriving at the finding of desertion on her part. He also contended that for a long period of ten years, no effort was made by the respondent-husband to restore the matrimonial home by taking back the appellant-wife to their matrimonial home at jodhpur and merely because the appellant wife withdrew her consent is the application filed for seeking divorce by mutual consent, it cannot be said that she wanted to desert her husband. He also submitted that the delay in filing the divorce petition of ten years after alleged desertion by the appellant wife is fatal under Section 10 of the Divorce Act and consequently the divorce petition deserved to be dismissed. He also submitted that the delay in filing the divorce petition of ten years after alleged desertion by the appellant wife is fatal under Section 10 of the Divorce Act and consequently the divorce petition deserved to be dismissed. He also emphasised that while the ground of cruelty has not been believed by the teamed Family Court and issue No. 1 was decided against the respondent-husband on the same set of facts alleged, the issue No.2 being integrally connected with the same could not have been decided against the appellant-wife. Reliance has been placed by the learned counsel for the appellant-wife on the following judgments: (i) Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558 (ii) Smt. Laxmi v. Mukesh Mordia, 2007 (5) WLC 714 (iii) Sanjay Sharma v. Smt. Aradhana Sharma, 2007 (6) WLC 200 8. On the other hand, Mr. Mahesh Khayani appearing for the respondent- husband urged that the finding of desertion has been rightly arrived at by the learned Family Court as for a long period of ten years the appellant-wife failed to come back to the matrimonial home without any valid rhyme or reason. After the delivery of child, Chirag, at Ajmer, she went back to Amer taking along with her the dowry articles and she refused to come back to the matrimonial home and the factum of desertion was duly proved by the oral evidence of the respondent- husband himself and his mother Teresa Philip. He also submitted that the delay in filing the divorce petition occurred on account of constant efforts made by the respondent-husband to bring back the appellant-wife to the matrimonial home but the same failed due to the reticent attitude of the appellant-wife. 9. He also submitted that the delay in filing the divorce petition occurred on account of constant efforts made by the respondent-husband to bring back the appellant-wife to the matrimonial home but the same failed due to the reticent attitude of the appellant-wife. 9. Learned counsel for the respondent-husband also submitted that mere fact of joint application being filed by the parties for seeking divorce by mutual consent is sufficient to show that the parties could never get along and wanted divorce and since withdrawal of the consent by the appellant-wife was not proper and the respondent-husband made efforts for restoration of matrimonial home, the animus deserendi on the part of appellant-wife was duly proved by the respondent-husband and consequently even while finding that there was no cruelty committed by the appellant-wife, the divorce decree was rightly granted by the learned Family Court in favour of respondent-husband on the ground of desertion, which finding according to the learned counsel for the respondent- husband does not require interference by this Court and present appeal of the appellant wife deserves to be dismissed. 10. Learned counsel for the respondent-husband placed reliance on the following decisions: (i) Geeta Jagdish Mangtani v. Jagdish Mangtani, 2005 (3) CCC 750 (SC) (ii) Johnson M. Josheph v. Smt. Aneeta Johnson, AIR 2003 M.P. 271 11. We have heard learned counsels at length and perused the material on record. 12. On the basis of evidence on record, this Court is of the opinion that the learned Family Court has erred in deciding the issue No. 2 in favour of the respondent-husband-Alexzendor of desertion by appellant-wife for a period of more than two years prior to filing of the petition. The respondent-husband not only came to the Court with wrong averments that the appellant-wife lived with the respondent-husband only for four months after their marriage, which was admittedly solemnized on 26.5.1993, which averment was contradicted in Para 3 of the plaint itself where the husband himself stated that the respondent-wife left the matrimonial home on 10.8.1995. The respondent-husband not only came to the Court with wrong averments that the appellant-wife lived with the respondent-husband only for four months after their marriage, which was admittedly solemnized on 26.5.1993, which averment was contradicted in Para 3 of the plaint itself where the husband himself stated that the respondent-wife left the matrimonial home on 10.8.1995. These contradictory averments in the plaint in the face of the written statement filed by the appellant wife, wherein, she clearly denied the averment in Para No.3 to the effect that she left for Ajmer with her mother and dowry articles on 10.8.1995 and also in the statement recorded of the appellant-wife by the Family Court below on 13.7.2010 in which also she has clearly stated that after her marriage, she lived with the respondent-husband despite physical beatings given by the husband after consuming liquor and it clearly shows that the respondent-husband had no bona fide case to file the present divorce petition under Section 10 of the Divorce Act, 1869. The appellant- wife in her examination by the Court even after long lapse of time in 2010 stated that it is the respondent-husband, who has deserted her and not she and she is ready and willing to go the matrimonial home even now. She of course stated before the Court that if her husband keeps her safe and properly, she is even ready and willing to withdraw the case filed under the Domestic Violence Act. In her cross-examination also, the appellant-wife stated that in the year 2007 under the orders of Chief Judicial Magistrate, she went to live with her husband but even for three days the respondent-husband neither lived her nor resumed matrimonial relationship and despite he having his residential house, she was kept in a railway quarter and he even did not take dare to provide proper food to her and their son Chirag. In her cross-examination, she also stated that after delivery of the child, she stayed at her parents' house only for 1 viz months and, thereafter, came back to the matrimonial home at jodhpur where she stayed for about two years but thereafter due to constant bad behaviour of physical violence, she came back to her parents' house at Ajmer. She categorically denied of having any other love affair with anybody at Ajmer. She categorically denied of having any other love affair with anybody at Ajmer. The respondent-husband himself admitted before the learned Family Court in his statement recorded on 7.2.2009 that he never cared to check and verify as to who was the person with whom his wife was involved at Ajmer. In his cross-examination also, at the end, he stated that if his wife wants to live now with him, he has an objection in that. 13. The case in hand has only oral evidence on record from the side of respondent-husband as AW-1 and his mother, Teresa Philip as AW-2, whereas, on the defence side only the wife herself was examined as NAW-1 and despite detailed cross-examination, this Court finds nothing in her evidence, which would reflect her intention to desert her husband. On the contrary, the fact that the present divorce petition was filed after ten years of the alleged leaving of the matrimonial home by the appellant-wife in 1995 clearly shows that the respondent-husband himself had deserted his wife and had compelled her to leave the matrimonial home for her own safety and the allegations of other love affair at Ajmer was also made without any substance just for her character assassination. The animus deserendi on the part of respondent-husband is more reflected that even on the death of father of appellant-wife on 9.3.2000, the respondent-husband did not care to go even at this juncture of bereavement to Ajmer. As against this, he claimed that in 2005 he went to invite the family of appellant-wife for the marriage of his brother but was not well received and father of the appellant-wife refused to send her back with him, whereas, the appellant has stated that she was not even available at her home when they allegedly came. The mother of the husband AW-2, has also not given any details of alleged misbehaviour or lack of love with his son on the part of appellant-wife. Like the respondent-husband, AW-2-Teresa Philips also repeats that the appellant-wife syated in the matrimonial home only for four months and she left the matrimonial home on 10.8.1995. The averments made by her that her son made efforts for bringing back the appellant-wife to jodhpur, also do not give any details or particulars thereof. Like the respondent-husband, AW-2-Teresa Philips also repeats that the appellant-wife syated in the matrimonial home only for four months and she left the matrimonial home on 10.8.1995. The averments made by her that her son made efforts for bringing back the appellant-wife to jodhpur, also do not give any details or particulars thereof. On the basis of such vague averments made by the respondent-husband and his mother, the learned Family Court could not have drawn the inference of animus deserendi and arrived at the conclusion that the appellant-wife was guilty of deserting her husband without any reasons, consequently resulting into divorce decree under Section 10 of the Act. 14. Divorce in a society, where institution of marriage is highly respected and safeguarded is a great stigma, particularly on a woman and is a curse not only on the parties to the marriage but more so on the children out of such forlorn marriages. Ego . sans love carried over a long period, results in psychological barriers between the parties and the reconciliation after long lapse of period simply becomes difficult though relentlessly sincere efforts are made by the Courts of law and so also Lok Adalats and Court-annexed Mediation Centres. In all, the emphasis of the society is always to continue with the institution of marriage rather than breaking it. 15. The case laws relied upon by the learned counsel for the respondent- husband about irretrievable break down of marriage cannot apply in the present case because such cases arose and were dealt with by the Apex Court in exercise of its powers under Article 142 of the Constitution and Hon'ble Apex Court granted divorce decree finding that such marriages before them have irretrievably broken down but in the present case, this Court does not find any such irretrievable break down of the marriage. The continuous desire expressed by the appellant-wife to go back to the matrimonial home in the absence of any sincere effort made by the respondent-husband to restore the matrimonial home, is sufficient to draw the inference otherwise than the one drawn by the learned Family Court. Unless the ground of desertion is fully and properly established with the facts pleaded and proved, the mere silence on the part of the respondent wife could not be presumed as her animus deserendi, giving rise to a ground of divorce and decree in favour of the husband. 16. Unless the ground of desertion is fully and properly established with the facts pleaded and proved, the mere silence on the part of the respondent wife could not be presumed as her animus deserendi, giving rise to a ground of divorce and decree in favour of the husband. 16. The fact of filing of divorce petition by mutual consent in the present case and later on withdrawal of her consent by the appellant-wife also does not show that she voluntarily deserted her husband but on the contrary it shows that filing of the divorce petition was more impulsive or under some influence rather than a considered decision. The very purpose of providing statutory opportunity of rethinking and giving of consent against at the stage of second motion after six months of cooling period under Section 10 A of the Divorce Act of 1869, which is akin to Section 13-B of the Hindu Marriage Act, 1955 is to allow the parties to have a rethinking and give deeper thought before they take a considered decision to obtain the divorce by mutual consent and, therefore, no adverse inference could have been drawn against the appellant-wife in the present case when she withdrew her consent from such application under Section 10 A of the Act. 17. In Naveen Kohli v. Neelu Kohli (supra), the Hon'ble Supreme court in Paras 85 and 87 held as under: "Undoubtedly, it is the obligation of the Court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life." 18. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life." 18. While recommending irretrievable break down of marriage to be given a status of statutory ground of divorce and on facts of the case even finding the marriage as irretrievably broken down, in that case, the Court in unambiguous terms as quoted above said that unless that marriage is totally dead, the Courts are under an obligation to save and maintain the status of marriage in view of such institution being sacrosanct. The facts of that case being contrary to the present case except passage of ten years of separation, this Court does not find any ground to hold that marriage in the present case has become dead of irretrievably broken down. 19. The judgment relied upon by the learned counsel for the respondent- husband in the case of Geeta Jagdish Mangtani v. Jagdish Mangtani (supra) is clearly distinguishable on fact. In that case, the Court found as under: "The marriage survived only for a brief period of about seven months. After 2.6.1993 till the exchange of notices and replies during September to December, 1996 and filing of the divorce petition ultimately by the husband on 31.12.1996, there has been no attempt on the part of the wife to stay with the husband. She is a school teacher and it is common knowledge that in schools there are long vacations during summer months, more so, in Government schools where the wife teaches. At least during those holidays she could have visited the husband at Ulhasnagar alongwith her son and stayed with him. There is nothing on record to show that any such attempt was ever made by her to visit the husband during this entire period. She has stated in her evidence that the husband used to come and stay with her during her vacations. This has been denied by the husband. Therefore, the conclusion in inevitable, that there was never any attempt on the part of the wife to go to husband's house i.e., matrimonial home of the parties after she left on 2.6.1993. From this fact alone animus deserendi on the part of the wife is clearly established. This has been denied by the husband. Therefore, the conclusion in inevitable, that there was never any attempt on the part of the wife to go to husband's house i.e., matrimonial home of the parties after she left on 2.6.1993. From this fact alone animus deserendi on the part of the wife is clearly established. She has chosen to adopt a course of conduct which proves desertion on her part. In the facts and circumstances of the case, it cannot be said that this desertion on the part of the wife was with a reasonable cause. Such a course of conduct over a long period indicates total abandonment of marriage and cannot be justified on ground of monetary consideration alone as a reasonable cause to desert. It also amounts to willful neglect of the husband by the wife." 20. However, the facts of the present case are diagonally opposite. Not only the appellant-wife lived with the respondent-husband for about two years as against the period of four months claimed by the husband but there is a child born out of this wedlock in between this period of two years and the appellant wife has constantly expressed her desire to come back to the matrimonial home and was compelled to leave the same on account of atrocious behaviour of the husband and coupled with the fact that husband never made any effort to bring back her to the matrimonial home. This Court is of the clear opinion that the facts of case relied upon by the learned counsel for the respondent-husband are clearly distinguishable and, therefore, the divorce decree In the present case cannot be maintained on the strength of the same. 21. Similary, in the other decision relied upon by the learned counsel for the respondent-husband is the case of Johnson M. Joseph v. Smt. Aneeta Johnson (supra) the learned Single Judge of Madhya Pradesh High Court found as a matter of fact in Para 12 of the judgment that the defendant refused to live with the plaintiff when attempts were made to bring reconciliation by the lady Police Officer and even now there is no sincere move from the side of the defendant to live with the plaintiff husband and, therefore, the Court inferred animus deserendi on the part of defendant wife and granted divorce decree. The facts here, as stated above, are distinguishable. 22. The facts here, as stated above, are distinguishable. 22. Thus, having considered the case laws cited at the bar and the factual matrix and evidence on record, this Court is of the clear opinion that the learned Family court below has wrongly granted the divorce decree to the respondent- husband on the ground of desertion and issue No. 2 was wrongly decided by the learned Family Court in favour of the respondent-husband and the present appeal of wife deserves to be allowed and same is accordingly allowed. The divorce decree d Ad 2.12.20,10 is set aside. No order to costs.Appeal Allowed. *******