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2014 DIGILAW 1789 (BOM)

Kalpika Sharad Naik v. Sharad G. Naik

2014-08-11

A.R.JOSHI

body2014
Judgment : 1. Heard rival submissions at length on this First Appeal preferred by the appellant/wife, original respondent challenging the judgment and order dated 12/12/2012. By the said order impugned in the present appeal the Matrimonial Petition No.23/2011/A filed by the present respondent/original petitioner for decree of divorce under Article 4(4) & 4(5) of the Law of Divorce applicable to Goa, Daman and Diu, was decreed. The marriage between the appellant and respondent registered under the entry no.255/2002 of the marriage registration book in the office of Civil Registrar of Mormugao was dissolved by decree of divorce. Civil Registrar, Mormugao was directed to make necessary endorsement against the said entry. The parties were directed to bear their own costs. Appellant and respondent are hereinafter referred to as wife and husband, respectively. 2. Being aggrieved by the said judgment and decree of divorce, wife had preferred the present appeal. At the threshold, the thrust of the arguments advanced on behalf of the wife are mentioned as under: Firstly, the two issues framed by the trial Court were answered cumulatively, without separate reasoning for individual issue, Secondly, the issue no.1 was not objectively discussed, Thirdly, that there was no discussion at all by appreciation of evidence on the second issue, and, Fourthly that the trial Court had erred in accepting the alleged situation that the marriage was irretrievably broken. 3. In order to appreciate these arguments initially the issues farmed by the trial Court are required to be mentioned. Said issues are as under: 1. Whether the petitioner was subjected to ill treatment by the respondent? 2. Whether the respondent had abandoned the marital house from 30.05.2007? 4. Certain factual position and filing of different petitions concerning the marriage between the parties, are required to be mentioned in order to ascertain as to at what stage the petition for divorce was preferred by husband. The marriage between the parties was registered on 23/04/2002 and marriage as per the custom was performed on 9/05/2002. Apparently, till the birth of the male child, the relations between the parties were cordial and there was no much dispute except some trivial differences. Son was born on 20/01/2007. Initially the parties were residing at the Government allotted quarters given to the husband, till the year, 2007. However, intermittently, the parties were staying separately on account of their respective jobs. Son was born on 20/01/2007. Initially the parties were residing at the Government allotted quarters given to the husband, till the year, 2007. However, intermittently, the parties were staying separately on account of their respective jobs. Without much going into the details, suffice it to say that the wife is working as a Station Master and was having shift duties and was posted at various stations including Canacona and Balli. Her parents reside at Karwar. Even the ancestral house of the husband is also at Karwar. The wife withdrew herself from the conjugal relations from sometime about 30/05/2007. Then she started residing at Karwar with her parents and coming to Canacona at the place of her work as Station Master. Husband all along stayed at Canacona in the Government quarters given to him till about October, 2008 and then surrendered the quarters and started residing at native place at Karwar along with his mother. 5. Due to apparent desertion by the wife, husband filed an application for restitution of conjugal rights in November, 2008. Wife appeared and filed counter claim for divorce on the ground of ill treatment. She filed the petition under Article 4(4) of Law of Divorce. Apparently, there was some settlement talk between the parties and husband withdrew this application for restitution of conjugal rights sometimes in September, 2010. However, wife did not withdraw her counter claim asking for divorce and the matter was listed for evidence. However, subsequently, she withdrew from the proceedings sometime in June, 2011. Thereafter, husband filed a suit for divorce in July, 2011 and in which the decree of divorce was granted which is impugned in the present appeal by the wife. 6. The Article 4(4) and 4(5) of the Family Laws applicable to Goa, Daman & Diu read thus: ARTICLE 4 The contested divorce may be obtained only on the following grounds and on no other: (4) Ill-treatment or serious injuries; (5) Complete abandonment of the conjugal domicile for a period of not less than three years. 7. Broadly following circumstances were pleaded and evidence to that effect was given by the husband. 7. Broadly following circumstances were pleaded and evidence to that effect was given by the husband. Said circumstances are: (i) Suicide attempt by the wife, (ii) Dispute and difference of opinion on the circumstances as to the new born child to be taken to temple to perform religious pooja, (iii) Episode of quarrel at the time of sickness of the child, (iv) Asking the wife to stand as surety for the car loan to be obtained in the year 2007 and denial of the wife to stand as surety. 8. During the arguments learned Counsel for the wife mainly emphasized the points mentioned at the threshold of this judgment and placed reliance on various authorities as under: (i) 2002 (3) ALLMR 924 (S.C.) in the case of Jagbir Sharma V/s. Babli. This authority cited to canvass the proposition that there is no objective discussion of the material evidence produced by the parties. (ii) 2009 (6) ALL MR 515 in the case of Anil Kumar Jain V/s. Maya Jain, (iii) AIR 2009 SC 2254 in the case of Visnu Dutt Sharma V/s. Manju Sharma, (iv) 2006 (4) SCC 558 in the case of Naveen Kohli V/s Neelu Kohli. Above three authorities were cited on behalf of the wife to substantiate the proposition that the ground of marriage being irretrievably broken is not available for the trial court and only under Article 142 of the Constitution of India, such recourse can be taken by the Apex Court to put an end for the marriage as this is not a specific ground for asking for divorce under special family laws applicable to Goa, Daman & Diu. (v) Unreported decision in Second Appeal No.85/2006 decided on 18/08/2010. By taking shelter of the above authority, it is submitted that when there is no proper appreciation of the material available on record and when there is no reasoning given and no objective discussion of the substantive evidence, the matter is required to be remanded back to the trial Court for disposal according to law. 9. Counter to the above arguments learned Counsel for the husband took this Court to the observations mentioned in the impugned judgment and order of the trial Court and it is submitted that the evidence of the parties was taken care of and proper reasoning was given by the trial Court. 9. Counter to the above arguments learned Counsel for the husband took this Court to the observations mentioned in the impugned judgment and order of the trial Court and it is submitted that the evidence of the parties was taken care of and proper reasoning was given by the trial Court. It is further argued that clubbing both the issues for the purpose of answering them and giving reason for the respective answers cannot be termed as an illegality, much less a ground for setting aside the judgment and decree. On this aspect, it is to be seen that both the issues framed by the trial Court and which are reproduced earlier, they are answered by the same reasoning and both the issues are not individually discussed by the trial Court, mentioning that they are interlinked. 10. Without going into the detail scrutiny of rival substantive evidence led before the Court i.e. the evidence of husband and his mother and evidence of wife and her father, what is required to be seen is whether the said substantive evidence has been appreciated by the Court or in fact whether the trial Court had taken recourse to the pleadings of the parties. This is the argument advanced on behalf of the wife mentioning that in various paragraphs of the impugned judgment the trial Court has passed its decision and opinion on the pleadings of the parties. If this is so there is no objective discussion of the substantive evidence and no separate discussion as to two distinct issues framed then the circumstances warrant, in the opinion of this Court, to send the matter back to the concerned trial Court for answer of the issues framed in the light of the substantive evidence led by the parties. On this aspect, reference can be made to the observations made by the trial Court in various paragraphs of the impugned judgment. After discussing the case of the rival parties in earlier paragraphs and after framing the two issues and taking shelter of the authority Naveen Kohli V/s. Neelu Kohli (supra) cited on behalf of the wife, the trial Court based its findings on the pleadings of the parties and this is specifically done in paragraph 20, 22, 26, 28, 29, 32, 33, 35, 42, 47, 48. In these paras based on pleadings various circumstances taken shelter of by the husband in his petition for divorce, were considered and answered. At the cost of repetition it must be mentioned that those circumstances are like suicide attempt by the wife, new born child to be taken to temple, sickness of the child, car loan to be taken and asking the wife to stand as surety, etc. As said again without going much into the other aspects in the considered opinion of this Court the impugned judgment and decree cannot sustain in law inasmuch as the substantive evidence is not objectively discussed and hence it is a fit case in which the impugned judgment and decree of divorce is required to be set aside and the matter is remanded to the trial Court for appraisal of the substantive evidence and the material produced by the rival parties and to deal with the matter and dispose of the same in accordance with law. Hence, order: ORDER (i) The appeal is partly allowed. (ii) The impugned judgment and order dated 12/12/2012 is quashed and set aside. (iii) The matter is remanded back to the trial Court for appraisal of substantive evidence and material produced by rival parties. (iv) The trial Court to deal with the matter in accordance with law and dispose off the same as early as possible being a matrimonial dispute. (v) Both the parties to remain present before the trial court on 1/09/2014 at 10.00 a.m. (vi) The First Appeal accordingly stands disposed off.