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2025 DIGILAW 1006 (GUJ)

Kamalrukh Tehmul Sethna v. Tehmul Burjor Sethna

2025-09-09

A.Y.KOGJE, N.S.SANJAY GOWDA

body2025
JUDGMENT : A.Y. KOGJE, J. 1. This appeal is filed against the order dated 20.01.2024 passed by the Principal District Judge, Surat and Parsi Matrimonial Court, Surat. Impugned order was passed on preliminary issue of limitation raised by respondent-husband in Special Marriage Petition (suit) No.6 of 2016, wherein wife had sought divorce under the Parsi Marriage and Divorce Act, 1936 (hereinafter referred to as “the Act” for short). 2. The brief facts of the case that the appellant-wife got married to respondent no.1 on 08.11.1987 according to Parsi Zoroastrian rites and rituals in Ahmedabad. Around October 2014, as the appellant-wife was facing an issue with her phone, her husband gave his old phone to her. On 08.10.2014, while setting up her phone she came across Whatsapp messages and emails consisting of explicit photographs and videos, wherein the respondent-husband was chatting with several women simultaneously. The appellant-wife thereafter left her matrimonial home and filed a complaint at Vastrapur Police Station on 16.11.2014. Thereafter, upon going to the matrimonial home along with P.I. Ramanuj and her friends, the respondent-husband upon being confronted regarding his affairs with multiple women he admitted to it but denied the fact that he abused the appellant-wife and accused her of not having any physical intimacy for over 10 years. 3. The respondent-husband filed a restitution petition being Family Suit No.192 of 2015 (Parsi Suit No.24 of 2016) before the Family Court, Ahmedabad on 02.02.2015. The appellant- wife filed Parsi Suit No.5 of 2015 before the Parsi Chief Matrimonial Session in Bombay High Court on 26.03.2015seeking divorce. 3.1 The appellant-wife has thereafter filed Transfer Petition (Civil) No.612 of 2015 before the Hon'ble Supreme Court for transferring Family Suit No.192 of 2015 from Family Court, Ahmedabad to Family Court, Mumbai. The said transfer petition was disposed of by order dated 11.12.2015 by transferring the proceedings of Family Suit No.192 of 2015 from the Family Court, Ahmedabad to Family Court, Mumbai by clarifying that in case the Family Court, Mumbai finds that it has no jurisdiction in the matter, it shall transfer the said case to such court as may be competent. The Review Petition (Civil) No.97 of 2016 filed by the respondent-husband against the said order was dismissed by the Hon'ble Supreme Court by order dated 21.01.2016. The Review Petition (Civil) No.97 of 2016 filed by the respondent-husband against the said order was dismissed by the Hon'ble Supreme Court by order dated 21.01.2016. 3.2 Thereafter, the respondent-husband in Parsi Suit No.5 of 2015 has filed Notice of Motion No.12 of 2015 seeking dismissal of suit for want of jurisdiction or alternatively to return the plaint to the appellant-wife (plaintiff) for presentation to the proper court which was allowed and the suit by order dated 25.08.2016 was transferred to the District Court at Surat in Gujarat along with the restitution petition being Family Suit No.192 of 2015 as there is an empanelled jury of delegates in Surat. Thereafter, there was one correction order on 02.10.2016. Against the said order dated 25.08.2015, the appellant-wife filed Appeal No.343 of 2016 before the High Court of Judicature at Bombay and the Appellate Bench of the High Court of Bombay by order dated 28.09.2016, disposed of the said appeal by dismissing both the suits, i.e Family Suit No.192 of 2015 as the respondent- husband withdrew the same and Parsi Suit No.5 of 2015 as it was withdrawn by the appellant-wife and the Court has reserved specific liberty to file fresh suits, in accordance with law. 3.3 Thereafter, vide order dated 18.12.2017, the entire proceedings along with the documents presented in Parsi Suit No.5 of 2015 came to be transmitted to the District Court at Surat. 4. Thereafter, the appellant-wife has approached the Surat Court by moving leave application being Civil Misc. Application No. 289 of 2016 under section 29 of the Act on 13.10.2016 and the leave application was granted by the District Court, Surat on 30.12.2016. The plaint of Special Marriage Petition (Suit) No.6 of 2016 was also presented on 13.10.2016 and after grant of leave application by order dated 30.12.2016, the same was numbered as Special Marriage Petition (Suit) No.6 of 2016. 4.1 The respondent-husband has filed Order VII Rule 11 application Exhibit 17 in Parsi Family Suit No.6 of 2016 on 06.10.2017 which came to be rejected by order dated 13.10.2017 by Principal District Judge, Surat. 4.1 The respondent-husband has filed Order VII Rule 11 application Exhibit 17 in Parsi Family Suit No.6 of 2016 on 06.10.2017 which came to be rejected by order dated 13.10.2017 by Principal District Judge, Surat. Against the said order dated 13.10.2017, the respondent-husband presented Civil Revision Application No.462 of 2017 before this Court which was not entertained and came to be disposed of vide order dated 27.07.2022 giving liberty to the respondent- husband to move appropriate application for framing the issue of limitation and upon filing such application, to treat the issue of limitation as a preliminary issue and to decide the same. The respondent-husband moved an application under Order XXIV Rule 2 of CPC seeking framing of preliminary issue on 22.08.2022 (Exhibit 54) against which the appellant- wife filed reply Exhibit 55 on 29.08.2022 and the Court has framed the period of limitation as preliminary issue by order dated 01.09.2022. 4.2 The District Court at Surat vide impugned order dated 20.01.2024, rejected the plaint, seeking divorce on the ground of adultery as time-barred under Section 32(d) of the Act and further observed that the suit is required to be proceeded with on the grounds of cruelty under Section 32(dd) of the Act. Hence, the present appeal. 5. It is observed that there are other pending proceedings between the parties being, FIR CR No.I-132 of 2016 registered with Crime Branch, Gaekwad Haveli Police Station, Ahmedabad filed by the appellant-wife against the respondent-husband on 26.12.2016 for the offence under sections 406, 420, 465, 467, 468, 471 of IPC which has culminated into Criminal Case No.36583 of 2019 pending before the Metropolitan Magistrate, Court at Ahmedabad and another proceeding being, Criminal Case No.700040/DV/2015 which is pending before 32 nd Metropolitan Magistrate, Court at Bandra, Mumbai. Also, the respondent-husband had approached the Hon’ble Supreme Court for transferring the said proceeding in Metropolitan Magistrate, Court at Bandra, Mumbai initiated by the appellant-wife under the Protection of Women from Domestic Violence Act, 2015 to Chief Metropolitan Magistrate, Surat on the ground that the divorce petition filed by the appellant-wife is pending at Surat and it came to be dismissed by the Hon’ble Supreme Court by an order dated 26.04.2017. 6. Learned advocate Ms. 6. Learned advocate Ms. Kruti Shah appearing for the appellant submitted that it was on 08.10.2014, when the respondent wife came across a message on the iPhone of her husband given to her for use which arose suspicion about the adulterous life of the respondent-husband. However, it was on 24.08.2016 when she received the report of the expert which confirmed her suspicion about the adulterous life of her husband and therefore, the limitation would start after she received forensic authentication. 6.1 Learned advocate submitted that the trial Court has overlooked the fact that the plaintiff had initiated proceedings from March 2015 by way of suit and then preferred an appeal before the Bombay High Court which came to be decided on 28.09.2016 and thereafter, the suit was filed on 13.10.2016. Therefore, the appellant was litigating in good faith and there was due diligence on her part and the trial Court wrongly rejected the suit partly on a technical ground of delay of five days. 7. Learned advocate Ms.Jayani Shah appearing the respondent-husband supported the judgment and decree of the Family Court and submitted that the divorce cannot be granted on the ground of adultery if suit is filed more than two years after the appellant-wife came to know of the facts which was on 08.10.2014 when she came across a WhatsApp message. However, the suit has been filed by the appellant wife on 13.10.2016, which is after the expiry of two years. 8. Heard learned advocates for the parties and perused the documents placed on record. The appellant (plaintiff) wife has filed the Special Marriage Petition No.6 of 2016 under Section 32(d) and (dd) of the Act, meaning thereby claiming right to divorce on the ground of spouse having committed adultery along with the ground of mental cruelty. By the impugned order, the suit for decree of divorce under Section 32(d) of the Act (Adultery) was rejected as being time barred whereas the suit on the ground of cruelty under Section 32(dd) of the Act was to continue. 8.1 The impugned order was passed on a preliminary issue of “Limitation”. The preliminary issue was framed pursuant to the directions contained in order passed by this Court in Civil Revision Application No.462 of 2017. This order permitted respondent-husband to move an appropriate application in pending Parsi Marriage Suit to frame an issue of “Limitation” as preliminary issue. 8.1 The impugned order was passed on a preliminary issue of “Limitation”. The preliminary issue was framed pursuant to the directions contained in order passed by this Court in Civil Revision Application No.462 of 2017. This order permitted respondent-husband to move an appropriate application in pending Parsi Marriage Suit to frame an issue of “Limitation” as preliminary issue. Accordingly, application Exh.54 under Order 14 Rule 2 of Civil Procedure Code was moved by the respondent-husband. 9. The appellant-wife filed her affidavit for evidence Exh. 62 contesting the preliminary issue on the ground that her valid ground on basis of cogent evidence cannot be frustrated on the technicality of limitation. 10. According to the appellant-wife, it was on 08.10.2014 she came across a message on the iPhone of her husband given to her for use which arose suspicion about the adulterous life of the respondent-husband. However, considering the length of 27 years of the married life, she preferred to remain silent. On 16.11.2014, she came to Ahmedabad to confront the respondent husband with her recent knowledge and sought assistance from Vastrapur Police Station. Thereafter in March 2015, she filed a suit for divorce under Sections 32(d) and 32(dd) of the Act in the Bombay High Court being Parsi Suit No.5 of 2015. Therefore, the appellant had initiated the action within stipulated period prescribed. 11. However, the Court by impugned order concluded that the right to divorce on the ground of limitation is time barred. While doing so, the Court considered these dates to be relevant. The first being 08.10.2014, date on which she saw the messages on iPhone which showed adulterous relation of the respondent-husband and the date of 13.10.2016 when she filed the suit. 12. The wife has claimed that she has good reason for not immediately proceeding with an action with due regard to a long standing marriage of 27 years and her children out of wedlock. 13. The issue that comes up for consideration is whether the Parsi Matrimonial Court, Surat was justified in framing the preliminary issue of limitation and thereafter holding that the suit for decree of divorce under Section 32(d) of the Act on the ground of adultery is time barred. 14. For the aforesaid issue, it would be relevant to examine the dates which have come on record regarding the knowledge of adulterous life of the respondent-husband. 15. 14. For the aforesaid issue, it would be relevant to examine the dates which have come on record regarding the knowledge of adulterous life of the respondent-husband. 15. Section 32(d) of the Act provides that any married person may sue for divorce on the ground that the defendant since the marriage committed adultery. It is further provided that the aforesaid ground may not be a ground for divorce, if the suit has been filed after period of two years from the knowledge of the fact. 15.1 Meaning thereby, the suit for divorce on the ground of adultery has to be brought within the period of two years from the knowledge of the plaintiff about the adulterous ground. 15.2 The reason for limiting the cause of action within period of two years of the knowledge, in the opinion of the court, is certainly not that the fact of the adultery gets diluted or vanishes but it is giving a choice to the spouse to prosecute or condone such adulterous relations. if the spouse with due regards to the other factors of the matrimonial life deems it fit to condone such adultery then the time period to presume such condonation is prescribed to be two years. 15.3 In the facts of the case the manner in which the appellant has persued the litigation it cannot be said that she wanted to condone the adultery of the respondent. 16. In the facts of the present case, the date of knowledge as is held in the impugned judgment and order is 08.10.2014 when allegedly the appellant-wife came across some messages which created suspicion in the mind of the appellant about the possibility of extramarital affair of the defendant-husband. She had also seen other materials in the phone of the husband. 17. Parsi Suit No.5 of 2015 with Chief Matrimonial Sessions Court, Mumbai was filed by the wife on 26.03.2015 which obviously was within the period prescribed under Section 32(d) Proviso. However, pending the proceedings, applications were filed and several orders came to be passed including an order below notice of motion No. 12 of 2025 filed by the respondent-husband seeking dismissal of the suit for want of jurisdiction and alternatively praying for return of the plaint to be proceeded before the Court of appropriate jurisdiction. However, pending the proceedings, applications were filed and several orders came to be passed including an order below notice of motion No. 12 of 2025 filed by the respondent-husband seeking dismissal of the suit for want of jurisdiction and alternatively praying for return of the plaint to be proceeded before the Court of appropriate jurisdiction. The notice of motion came to be decided by an order dated 25.08.2016, wherein in para-11 it is held that the proceedings to stand transferred to the District Court in Surat being a Court in Gujarat which hears the Parsi Matrimonial Cases through the Empanelled Jury of delegates in Surat. Accordingly, an agreement between the parties was recorded that the District Court in Surat will have the jurisdiction. Appeal No.343 of 2016 was preferred before the High Court of Judicature at Bombay under its ordinary original jurisdiction and in its order dated 28.09.2016, it is recorded as under:- “ 2. After hearing the parties for some time, learned counsel for the respondent-husband seeks to withdraw the respondent’s Family Suit No.192 of 2015 on the file of Ahmedabad Court (Parsi Suit No.24 of 2015 before this Court). Since the respondent is master of his cause is permitted to withdraw the said suit. Accordingly, Parsi Suit No.24 of 2015, which is now to be transferred to Surat by virtue of impugned order, is dismissed. 3. Similarly, Parsi Suit No.5 of 2015 initiated at the instance of petitioner-wife for divorce is also withdrawn. Accordingly, the same is also dismissed as withdrawn. 4. Both the suits are dismissed by reserving liberty to file fresh suits, in accordance with law.” 17.1 By the aforesaid order, the proceedings initiated by both husband and wife came to be withdrawn. 18. It is after these proceedings that Special Marriage Petition No.6 of 2016 is filed on 13.10.2016. 19. According to the impugned order, considering the date of 08.10.2014 to be the starting point, the matrimonial suit ought to have been filed on 07.10.2016, whereas the present suit has been filed in fact on 13.10.2016 and therefore, delayed by five days. The date 13.10.2016 is the date on which the wife had filed Civil Misc. Application No.289 of 2016 with the leave application and thereafter, Special Marriage Petition No.6 of 2016 was registered on 31.12.2016 upon leave being granted by an order in Civil Misc. The date 13.10.2016 is the date on which the wife had filed Civil Misc. Application No.289 of 2016 with the leave application and thereafter, Special Marriage Petition No.6 of 2016 was registered on 31.12.2016 upon leave being granted by an order in Civil Misc. Application No.289 of 2016 being allowed by an order dated 30.12.2016. 19.1 In the opinion of the Court, what had transpired in between has not been taken into consideration by the Court which has come on record. When the appellant-wife came to know about the messages which she found on the iPhone given by her husband on 08.10.2014 she came to know about the possibility of adulterous life of her husband which was only a ground for raising a suspicion about the adulterous life. One relevant factor which weighed with the wife was 27 years long marriage and the children borne out of their wedlock. For which, she obviously did not rush into taking any action. 20. The appellant-wife adopting a mere prudent path would decide to reconfirm as to whether the source of her suspicion that is to say the content of the iPhone of her husband can really be true. For that reason, she engaged an expert to examine the content of the phone and as to whether this can be treated as an evidence and therefore, consulted a forensic expert in Mumbai being Helik Advisory Private Limited in the third week of October 2015. On 26.10.2015, she handed over the iPhone with necessary details to Helik Advisory Private Limited and upon necessary process at the hands of the expert, the report was given which is dated 24.08.2016. The report of the expert confirmed her suspicion about the adulterous life of her husband and therefore, in the opinion of the Court, the relevant date for beginning the limitation ought to have been treated as 24.08.2016 when the cause of action for filing the suit had arisen. 20.1 The Court may observe that in a delicate relation between the husband and wife in a family dispute, mere information and inputs with regard to adulterous relation can never be treated as an exact date of knowledge. 20.1 The Court may observe that in a delicate relation between the husband and wife in a family dispute, mere information and inputs with regard to adulterous relation can never be treated as an exact date of knowledge. It is always upon the spouse as to how much credence he or she would give to such inputs or information so as to make it a foundation for the action which would permanently scar the institution of marriage and therefore, a spouse is always expected to play safe and often takes caution so as to save the marriage which in the facts of this case was of 27 years and also involved young children. It was natural of the appellant- wife to have adopted a safe path and getting the inputs which rose a suspicion in her mind confirmed by a scientific method, thereby resorting to an assistance of the forensic expert. Therefore, in the opinion of the Court, the date on which the forensic expert submitted its report to the appellant i.e. on 24.08.2016 the knowledge of adulterous life of the respondent-husband can be attributed. Therefore, in the opinion of the Court, the filing of the Suit No.6 of 2016 on 13.10.2016 could not have been treated as beyond the period of two years from the date of knowledge of adultery to the respondent-husband. 21. The Court may also take into consideration the another aspect, where the proceedings were initiated by the wife in Mumbai by filing Parsi Suit No.5 of 2015. This suit was filed on 26.03.2015 which came to be decided on 02.09.2016 and against which an appeal was preferred which ultimately got withdrawn by an order dated 28.09.2016. 22. It is pertinent to consider the observations made by the Bombay High Court in its order dated 28.09.2016 in para-2 which became the reason for withdrawal of the appeal filed by the wife so as to enable the wife to prefer the suit before the Court at Surat. 23. 22. It is pertinent to consider the observations made by the Bombay High Court in its order dated 28.09.2016 in para-2 which became the reason for withdrawal of the appeal filed by the wife so as to enable the wife to prefer the suit before the Court at Surat. 23. Considering the dates on which action was initiated even on the basis of the initial knowledge in the year 2014, the action was brought by the appellant-wife well within the period of two years however, the same was being pursued before the Mumbai High Court being Parsi Suit No.5 of 2015 in which the appeal was notice of motion No.12 of 2015 wherein, the Court in its order dated 25.08.2016 has held as under:- “11. In view of this, these proceedings will stand transferred to the District Court in Surat, that being the Court in Gujarat that, I am told, hears Parsi Matrimonial Case, there being an empanelled jury of delegates in Surat. The Alhmedabad Family Court, it is agreed, does not have jurisdiction. Parties before me agree that it is the District Court in Surat that will have jurisdiction 12. It is clarified that the transfer will be of the present matrimonial Parsi Suit No. 5 of 2015 as also the 1st Defendant's Petition for restitution of conjugal rights, viz., Family Suit No. 192 of 2015. 13. Lastly, it is clarified that the Plaintiff in the present divorce proceedings will have to take appropriate directions from the District Court in Surat Ahmedabad for effecting service in accordance with the Rules and procedures of that Court. 14. Ms. Pandit now points that there is also a pending proceeding under the Domestic Violence Act filed before the 12th Magistrate: Ms. Pandit has sought a transfer of that Domestic Violente proceedings to this Court. That transfer application is pending before another Bench on the appellate side of this, Court Liberty to the parties to move that Bench for a transfer of those DV proceedings to the Surat Court as well. Ms. Pandit is also at liberty to withdraw her transfer application of DV proceedings, if she is so instructed. 15. The Suit is disposed in these terms.” 24. Ms. Pandit is also at liberty to withdraw her transfer application of DV proceedings, if she is so instructed. 15. The Suit is disposed in these terms.” 24. In view of the aforesaid fact situation, the appellant-wife is entitled to the benefit of Section 14 of the Limitation Act and hence also, the Court is of the view that the ground of adultery for the decree of divorce could not have been held to be time barred. 25. The Court is of the view that in a matrimonial issues, particularly in the facts of the present case, where the marriage of 27 years was on the brink only on the ground of adulterous relation of the respondent-husband, the appellant- wife cannot be rendered remediless on the technicalities like the present one. The ground supported by the very cogent evidence cannot be frustrated on a hyper technical ground of limitation. 26. In view of the aforesaid, the appeal stands allowed . The impugned order insofar as it holds that the prayer of the appellant wife seeking decree of divorce under Section 32(d) of the Act, also ground of adultery being time barred is quashed and set aside. As a consequence, the suit which is otherwise to proceed on the ground of cruelty under Section 32(dd) of the Act shall now proceed, both on the grounds of adultery and cruelty under Sections 32(d) and 32(dd) of the Act. 27. In view of disposal of main appeal, no orders are required to be passed in the connected Civil Applications. Hence, the Civil Applications stand disposed of accordingly.