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2014 DIGILAW 2028 (BOM)

Banwarilal v. Lata

2014-09-18

Z.A.HAQ

body2014
JUDGMENT : Z.A. Haq, J. 1. This is an appeal filed by the husband (original petitioner) challenging the judgment passed by the learned Second Additional District Judge, Khamgaon allowing the appeal filed by the wife and setting aside the judgment and decree of divorce granted by the learned trial Judge. 2. The appellant-husband filed the petition praying for decree for restitution of conjugal rights and alternatively for dissolution of marriage and for decree of divorce. The appellant-husband contended that the marriage between the appellant and the respondent was solemnized in June, 1989 and the respondent cohabited with him till 30-10-1990. The appellant stated that during this period, the respondent-wife used to regularly visit her parental house and her behaviour with the elderly persons in the matrimonial house was not proper. The appellant-husband stated that she left her matrimonial house along with her father on 31-10-1990 and while leaving, she left the four month old child at the husband's house. The appellant contended that the respondent-wife issued false notice dated 6-11-1990 through her Advocate which was replied by him on 16-11-1990. It is stated that on 17-11-1990, the appellant's father, along with some respectable persons went to the parental house of the respondent-wife at Pandharkawda and persuaded her to return to the matrimonial house. However, the respondent-wife insisted that the appellant should reside separately from his parents and that the child should be first brought to Pandharkawda. 3. The appellant-husband stated that the respondent-wife had filed an application under Section 125 of the Criminal Procedure Code making false and frivolous allegations and making demand of Rs. 10,000/- and ill treatment and during pendency of the proceedings, she threatened the appellant and his father that they would be implicated in prosecution under Section 498(A) of the Indian Penal Code. The appellant contended that the attempts for reconciliation failed. With these pleadings and contentions that the respondent-wife had deserted the appellant for more than two years, the appellant prayed for decree of divorce. 4. The respondent-wife filed the written statement and opposed the claim made by the appellant. She reiterated her allegations of demand of Rs. 10,000/- by the appellant and his mother. The respondent stated that after the birth of her son- Purshottam, in spite of intimation, the appellant had not visited her for about one month. She reiterated her allegations of ill treatment. She reiterated her allegations of demand of Rs. 10,000/- by the appellant and his mother. The respondent stated that after the birth of her son- Purshottam, in spite of intimation, the appellant had not visited her for about one month. She reiterated her allegations of ill treatment. The respondent stated that the appellant was not having intentions to cohabit with her. She stated that when she was pregnant for the second time, she was sent to her parental house along with her father where she gave birth to second son- Sevakram. She denied the averments made by the appellant about giving of threats by the respondent and prayed for dismissal of the petition. 5. The learned trial Judge proceeded with the trial and by the judgment dated 2-6-1996 concluded that the respondent-wife had withdrawn from the company of the appellant-husband without any reasonable cause and that the respondent-wife and her relatives threatened the appellant. The learned trial Judge concluded that the respondent-wife had deserted the appellant-husband and had no intention to cohabit with him. The learned trial Judge concluded that the respondent-wife failed to prove the allegations of cruelty and desertion by the appellant-husband. The learned trial Judge granted decree of divorce. 6. The respondent-wife, being aggrieved by the judgment and decree passed by the trial Court, had filed appeal before the District Court. The learned District Judge by the judgment dated 17-9-1998 concluded that the husband had failed to prove that the wife had deserted him without any reasonable cause and that the wife treated him with cruelty. The learned District Judge allowed the appeal and set aside the judgment passed by the learned trial Court. The husband has filed this appeal challenging the judgment and decree passed by the learned District Judge. 7. Shri N. R. Saboo, the learned Advocate for the appellant has submitted that the findings recorded by the learned trial Judge were based on proper appreciation of the material on the record and were in consonance with the legal position and the learned District Judge has committed an error in setting aside the judgment passed by the learned trial Judge. The learned Advocate has submitted that the respondent-wife had made false allegations of demand of Rs. The learned Advocate has submitted that the respondent-wife had made false allegations of demand of Rs. 10,000/- by the appellant and his mother and these allegations are reiterated in the notice dated 6-11-1990 (Exhibit No. 70) and in the written statement filed by the respondent-wife before the trial Court. It is submitted that the appellant is entitled for decree of divorce on this point itself. In support of this submission, reliance is placed on the judgment of Hon'ble Supreme Court given in the case of Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate reported in 2003(3) ALL MR 777 (SC). 8. The learned Advocate for the appellant has submitted that the petition was filed on or about 20-11-1990 and it was amended on 23-7-1993 and by the amendment, the fact that the respondent-wife was living separately for more than two years without any justifiable cause was brought on record. It is submitted that till date, the appellant and the respondent are living separately for about 24 years and this shows that the marriage is irretrievably broken and the appellant is entitled for the decree of divorce as granted by the trial Court. In support of the submission, the learned Advocate has relied on the judgment given by the Division Bench of this Court in the case of "S" Vs. "D" reported in 2014(5) Mh. L. J. 181 and the judgment given by the Hon'ble Supreme Court in the case of Malathi Ravi (Dr.) Vs. Dr. B. V. Ravi reported in II (2014) DMC 483 (SC). 9. Shri S. I. Khan, the learned Advocate for the respondent-wife has submitted that the contentions of the respondent-wife that the appellant-husband and his mother demanded Rs. 10,000/- from the father of the respondent could not be proved by the respondent. It is submitted that, in any case it cannot be said that the allegations are of such serious nature that the appellant-husband is entitled for the decree of divorce. The learned Advocate has submitted that the contentions of the appellant- husband that the respondent-wife had threatened him and his father of false implication in prosecution under Section 498(A) of the Indian Penal Code has not been proved by the appellant-husband. 10. The learned Advocate has submitted that the contentions of the appellant- husband that the respondent-wife had threatened him and his father of false implication in prosecution under Section 498(A) of the Indian Penal Code has not been proved by the appellant-husband. 10. The learned Advocate for the respondent has submitted that the ground of desertion raised by the appellant-husband in the petition for seeking decree of divorce under Section 13(1)(i-b) of the Hindu Marriage Act was incorporated in the petition by the amendment, the application having been filed on or about 23-7-1993. It is submitted that the trial Court had allowed the amendment by the order dated 31-7-1993. The learned Advocate has submitted that the order passed by the trial Court on 31-7-1993 allowing the amendment is silent about the date of its effect and, therefore, as per the settled principles of law, it has to be considered that the amendment relates back to the date on which the petition was filed. It is submitted that it has to be considered that the ground of desertion was raised by the appellant-husband at the time of filing of the petition that is on 20-11-1990. The learned Advocate has submitted that the respondent-wife admittedly resided with the appellant- husband till 30-10-1990. Thus, according to the respondent-wife, the desertion, if any, was only for the period of twenty days and it does not entitle the appellant-husband for the decree of divorce under Section 13 of the Hindu Marriage Act. In support of the submissions, Shri Khan, the learned Advocate has relied on the judgment given by the Hon'ble Supreme Court in the case of Sampath Kumar Vs. Ayyakannu and anr. reported in (2002) 7 SCC 559 and in the case of Prithi Pal Singh and anr. Vs. Amrik Singh and ors. reported in (2013) 9 SCC 576 . 11. Shri Saboo, the learned Advocate for the appellant, in reply, has submitted that the submissions made on behalf of the respondent that the claim made by the appellant for divorce on the ground referable under Section 13(1)(i-b) of the Hindu Marriage Act is unsustainable as the amendment relates back to the date of the filing of the petition, is misdirected and cannot be accepted. To counter submissions made on behalf of the respondent, the learned Advocate for the appellant has relied on the following judgments : (i) Judgment given by the Hon'ble Supreme Court in the case of Narsingh Das Tapadia Vs. Goverdhan Das Partani and anr. reported in 2001(1) Mh. L. J. 154, (ii) C. R. Janardhan Vs. Smt. N. S. Vinutha and anr. reported in AIR 2003 Karnataka 393, (iii) Charanjit Singh Mann Vs. Neelam Mann reported in AIR 2006 Punjab and Haryana 201 and (iv) Jaika Vanijya Ltd., Nagpur and anr. Vs. State of Maharashtra and ors. reported in 2013(4) Mh. L. J. 161. 12. This Court has admitted the appeal and has formulated the substantial question of law requiring consideration about the effect of the amendment i.e. whether it relates back to the date of filing of petition. 13. With the assistance of the learned Advocates for the respective parties, I have examined the record. The learned District Judge has considered the evidence on the record and has recorded the findings of fact that the respondent-wife has not deserted the husband. The conclusions of the learned District Judge are in paragraph no. 12 of the judgment which reads as follows : "12. It would not be out of place to mention here that wife was carrying pregnancy at that time i.e. when the witnesses had been to Pandharkawada to persuade her and wife delivered second son by name Sevakram on 6/6/91 at the house of her parents. According to husband himself, till 31/10/90 their matrimonial life was smooth. There is only incident of 30/10/90 regarding falling of child from the cot. Except that incident, nothing was happened and in such circumstances the wife will never intend to remain at the house of her parents. On the contrary, the record itself shows that on 7/9/92 wife has filed pursis (Ex.18) with her signature showing her willingness to go for cohabitation at the house of husband. Thereafter the trial Court made attempt for reconciliation but the husband was not ready for cohabitation and thus the reconciliation failed and accordingly the trial Court passed order below Exh. no. 1 on 4/11/92. Thus it clearly shows that husband was not ready to accept wife and to maintain her. On 4/11/92 there was no any amendment to the petition for restitution of conjugal rights filed by the husband. no. 1 on 4/11/92. Thus it clearly shows that husband was not ready to accept wife and to maintain her. On 4/11/92 there was no any amendment to the petition for restitution of conjugal rights filed by the husband. When wife has shown readiness to go for cohabitation, then and then only he has amended the petition and prayed for decree of divorce on the ground of mental cruelty. Thus all the circumstances constrained me to say that wife has not deserted the husband." The learned Advocate for the appellant has not been able to point out any perversity in the findings recorded by the learned District Judge. 14. The ground of mental cruelty as raised by the appellant- husband for seeking the decree of divorce has also been exhaustively considered by the learned District Judge. The contentions of the appellant-husband are that respondent-wife made false allegations of demand of Rs. 10,000/- by the appellant-husband and his mother from the father of the respondent-wife. It is contended that these false allegations have been brought on record in the notice dated 6-11-1990(Exhibit No. 70) and in the pleadings in the written statement filed before the trial Court. The learned District Judge has considered this in paragraph no. 15 of the judgment as follows : "15. So far as the allegation of demand of Rs. 10,000/- is concerned, wife has not filed any letter alleged to have sent to her father mentioning that she was ill-treated by husband and his mother on that count nor there is sufficient oral evidence to prove that husband and his mother insisted wife to bring Rs. 10,000/- from the house of her parents and on that count she was ill-treated. Wife may not have disclosed the allegation of demand of dowry by husband and her mother-in-law to any third person. She might have thought that one day wisdom will prevail. But only because she failed to prove the allegation of dowry, it can not be said that the allegations are false. According to her, she sent letters mentioning the said allegations to her father but those letters have not brought on record as those may not be available at the time of evidence but if we go through inland letters filed on record at Exs. According to her, she sent letters mentioning the said allegations to her father but those letters have not brought on record as those may not be available at the time of evidence but if we go through inland letters filed on record at Exs. 77 to 79 which were sent by wife to her father during the period from July 1990 to October 1991, it clearly show that she was ill-treated by mother-in-law and other inmates of her family on trifling grounds. I have already mentioned that she was constrained to leave matrimonial house on 31/10/90 alongwith her father without her son Purushottam when she was carrying pregnancy for second time. Thus from the circumstances mentioned above only because she has not disclosed the allegation of demand of amount of Rs. 10,000/- till sending notice Dt. 6/11/90, it can not be said that those allegations are false." The appellant has not been able to point out that the findings recorded by the learned District Judge are perverse or the view taken by the learned District Judge is not possible at all. The learned District Judge, in paragraph no. 15 of the judgment, has observed that the allegations of demand of Rs. 10,000/- made by the respondent-wife could not be said to be false. Consequently, I find no reason to interfere with the findings of fact as recorded by the learned District Judge which are based on appreciation of the material on the record and the conduct of the parties. In any case, the allegations made by the respondent-wife about demand of Rs. 10,000/- by the appellant-husband and his mother cannot be said to be of such a serious nature that it constitutes mental cruelty to the appellant-husband which can entitle him for a decree of divorce. The reliance placed by the learned Advocate for the appellant on the judgment given by the Hon'ble Supreme Court in the case of Vijaykumar Ramchandra Bhate is misdirected. In that case, serious allegations of unchastity and extra-marital relations were made by the husband against the wife and subsequently, husband sought to withdraw the allegations. It is in this background that the Hon'ble Supreme Court concluded that the allegations made by the husband against the wife amounted to grave assault on the educated wife and were sufficient to constitute mental cruelty. It is in this background that the Hon'ble Supreme Court concluded that the allegations made by the husband against the wife amounted to grave assault on the educated wife and were sufficient to constitute mental cruelty. In the present case, the allegations made by the respondent-wife that the appellant-husband and his mother demanded Rs. 10,000/- from the father of the respondent-wife cannot be treated on par with the allegations which were made by the husband against the wife in the above mentioned reported case. The judgment relied upon by the learned Advocate for the appellant does not assist the appellant. 15. The submissions made by Shri Khan, the learned Advocate for the respondent that the appellant is not entitled for the decree of divorce under Section 13(1)(i-b) of the Hindu Marriage Act is worth consideration. The order passed by the trial Court on 31-7-1993 allowing the amendment is silent about the date of its taking effect. As per the settled principles of law laid down by the Hon'ble Supreme Court in the judgment given in the case of Sampath Kumar and in the case of Prithi Pal Singh, it has to be treated that the amendment related back to the date of filing of the petition. The petition is filed on 20-11-1990. It is undisputed that the respondent-wife resided with the appellant-husband till 30-10-1990. Though the appellant has failed to prove that the respondent-wife has deserted him, even if it is considered that the respondent-wife left the company of the appellant-husband without any justifiable cause, the separation on the date of filing of the petition is only for twenty days and moreover, it is undisputed that at that time, the respondent-wife was pregnant. 16. The learned District Judge has found that the respondent-wife has not deserted the husband without any reasonable cause. The learned District Judge has concluded that the prayer for decree of divorce on the ground of separation for more than two years was sought by amending the petition after the respondent-wife filed pursis before the trial Court showing her willingness to cohabit with the appellant-husband. The learned District Judge has concluded that the prayer for decree of divorce on the ground of separation for more than two years was sought by amending the petition after the respondent-wife filed pursis before the trial Court showing her willingness to cohabit with the appellant-husband. Apart from this, Shri Khan, the learned Advocate for the respondent- wife has rightly submitted that the allegations made by the appellant- husband against the respondent-wife for seeking the decree of divorce does not entitle the appellant-husband for decree of divorce inasmuch as the alleged incidents on the basis of which the appellant-husband has sought decree of divorce are prior to the filing of the petition and the appellant-husband sought the decree for restitution of conjugal rights consequently condoning the lapses on the part of the respondent-wife, if any. In support of this submission, Shri Khan, the learned Advocate has relied on the judgment given by the Division Bench of this Court in the case of "S" Vs. "D" reported in 2014(5) Mh. L. J. 181, specifically paragraph no. 12 which reads as follows : "12. On this aspect, the appellant has been subjected to cross-examination by the Advocate for the respondent. In paragraph 10, the appellant stated that as the respondent went away with her parents, he filed a petition for restitution of conjugal rights. He has denied the correctness of the suggestion that the respondent had shown willingness to resume cohabitation. He has also denied the correctness of the suggestion that respondent's father had also stated that he was willing to withdraw all the complaints and send back the respondent to resume cohabitation. It is pertinent to note that allegations of very serious nature regarding conduct of the respondent have been made in the petition which according to the appellant constitute acts of cruelty. All the allegations relate to the period prior to 2nd April, 1998. The very fact that after 2nd April, 1998, in the year 1998 itself, the appellant filed a petition for restitution of conjugal rights shows that the appellant himself was ready and willing to resume cohabitation with the respondent and, therefore, the very conduct of filing the petition for restitution of conjugal rights is nothing but a clear act of condonation of the alleged acts of cruelty. No other inference is possible to be drawn as there was no reason for the appellant to file a petition for seeking a decree for restitution of conjugal rights. The appellant has made no attempt to explain in detail, the reasons for filing the petition for restitution of conjugal rights and the reasons as to why the petition was unconditionally withdrawn. In view of the act of condonation of cruelty, in the light of clause (b) of sub- section (1) of Section 23 of the said Act, the appellant will be disentitled to claim a decree of divorce on the ground of cruelty." 17. The judgment reported in AIR 2003 Karnataka 393 does not assist the appellant inasmuch as in that case, the relief sought by amendment was based on new cause of action. In the present case, the appellant sought the decree of divorce on the basis of the same cause of action. The judgment reported in AIR 2006 Punjab and Haryana 201 supports the arguments on behalf of the respondent-wife than the appellant-husband. In paragraph no. 18 of this judgment, the Court has recorded as follows : "18. After a ruminated consideration of the point in issue, we are unable to persuade ourselves to agree with the learned counsel for the appellant. The doctrine of 'relation back' being not of universal application, cannot be pressed into service to defeat a statutory provision or its object. The legislative scheme unfolds that occasion to observe the minimum and/or maximum waiting period envisaged under sub-section (2) of Section 13-B of the Act would arise only when a joint petition in terms of sub- section (1) thereof is presented before the Court. Thus, if the theory of 'relate back' is applied in such like cases then the 'waiting period' will precede the presentation of a joint petition. Such a consequence being totally alien and contrary to the legislative intendment behind the aforesaid provision, we reject the appellant's contention that on conversion of his petition under Section 10 into under Section 13-B of the Act, the joint petition shall be deemed to have been filed on 15-4-1998." The judgment reported in 2013(4) Mh. L. J. 161 does not assist the appellant as it is given considering the object of the provisions of Section 127 of the Maharashtra Regional and Town Planning Act, 1966. L. J. 161 does not assist the appellant as it is given considering the object of the provisions of Section 127 of the Maharashtra Regional and Town Planning Act, 1966. The ratio of that judgment cannot be applied to defeat the object of the provisions of Section 13(1)(i-b) of the Hindu Marriage Act. The judgment given by the Hon'ble Supreme Court in the case of Narsingh Das Tapadia also does not assist the appellant inasmuch as that judgment is given considering the provisions of the Negotiable Instruments Act and the ratio laid down in that judgment cannot be applied to defeat the object of the provisions of Section 13(1)(i-b) of the Hindu Marriage Act. 18. In view of the above, I find that the judgment and decree passed by the learned District Judge is proper and does not require any interference. The appeal is dismissed. In the circumstances, the parties to bear their own costs.