1 S.A.73/2000 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.73 OF 2000 Smt. Sheetal Prakash Pai nee Vijaya Bhangui, daughter of late Shri Bhavanath Bhangui, major in age, service, residing at Mapusa, C/o. Advocate F.B. Bhangui, Panchawadi. ... Appellant vs, Dr. Prakash Ramnath Pai son of Mr. Ramnath Pai Age 55 years, Govt. Servant, residing at Merces, Goa. ... Respondent Mr. M.S. Usgaonkar, Sr. Advocate with I. Agha for the appellant. Mr. Coelho Pereira, Sr. Advocate with Mr.S.Karpe for the respondent. CORAM : U. D. SALVI, J. RESERVED ON : 18/08/2010 PRONOUNCED ON : 26/11/2010 JUDGMENT : Challenge to the judgment and decree of divorce dated 6th April, 2000 granted in Regular Civil Appeal no.10/1999 in favour of the respondent husband by the IInd Additional District Judge, Panaji posed the following questions of law, 2 S.A.73/2000 conceived as substantial, at the admission of this appeal : (a) Whether the consecutive period of 10 years of de facto separation referred to under clause 8 of Article 4 of Law of Divorce can be any period of 10 years before filing of the petition or that the period could be immediately preceding the date of filing of the petition for divorce? (b) Would the amendment made in the present case relate back to the date of filing of the suit so as to find out whether the cause of action under Article 4(8)of Law of Divorce was or was not available to the appellant on the date of filing of the suit ? (c) Whether paragraph 3 of Article 4(8) directing the evidence to be restricted to the fact of separation, its continuity and duration has to be restricted strictly to the period of separation or does it permit the evidence to be led on the point of reasons for such separation, continuity and duration? 2. Before dealing with the aforesaid questions, it would be necessary to give overview of the facts leading to present appeal. The respondent husband instituted Special Civil Suit No.98/1984/A on 4th July, 1984 for divorce and incidentally, for 3 S.A.73/2000 the custody of his minor son Ramnath on the ground of ill- treatment or serious injuries as envisaged under clause 4 of Article 4 of Law of Divorce under the Portuguese Civil Code against the appellant wife – Sheetal, who entered into matrimonial alliance with him under Portuguese Civil Law on August 17, 1981 at Panaji before Civil Registrar. A son, Ramnath, was born out of the said wedlock on 3rd May, 1983. The respondent was working as a Demonstrator in Department of Anatomy at Goa Medical College, Bombolim and the couple started cohabitation at the respondent's home at Merces, Goa after the marriage. The mother of the respondent was living with them at the matrimonial home. According to the respondent, the appellant immediately after the marriage started harassing the plaintiff and his mother with insults, abusive language and quarrels, and ultimately left the matrimonial home on 8th December, 1983 without informing him. She took along with her their only son Ramnath as well as gold ornaments and valuable articles, and since then, started residing separately with the child at her mother's place at Mapa, Panchawadi. 3. The plaint was initially amended on 16th February, 1985 thereby incorporating in the plaint the particulars of false 4 S.A.73/2000 accusations made by the appellant wife regarding respondent's matrimonial infidelity, drunkenness and acts of physical violence. Particulars of abusive language used by the appellant were also incorporated in the plaint at that time in order to highlight the case of mental torture or severe injury. 4. Later on, the plaint was further amended as per order dated 25th August, 1994 to incorporate in the plaint an additional ground of divorce as contemplated in clause 8 of Article 4 of Law of Divorce vide newly added paragraphs 8b and 11a, as follows : 8b- “Ever since the defendant abandoned the conjugal domicile on 8th December, 1983, she never returned and there was no contact at all between the plaintiff and the defendant since then and hence on 8th December, 1993, the period of 10 consecutive years of de facto separation freely consented, has been completed and for this reason also, the plaintiff is entitled to divorce.” 11a- “The cause of action for divorce on the ground of freely consented de facto separation for consecutive 10 years arose on 8th December, 1993 under clause 8 of Article 4 of Division I, Chapter 2 of Law of Divorce” 5 S.A.73/2000 5. Claim for divorce, as initially conceived, was duly resisted with the written statement dated 27th September, 1985. The allegations made by the plaintiff except those concerning the solemnization of marriage, birth of son and date and manner of leaving the matrimonial home vide paragraph nos. 1 to 3 and 8 of the plaint, were denied. Counter allegations of cruelty and inhuman ill-treatment compelling the appellant wife to leave the matrimonial home were made by the appellant against the respondent husband. Instances of cruelty and harassment meted out to the appellant at the hands of the respondent were quoted in the written statement. 6. Initially, issues were framed in context with the pleadings pertaining the ground of divorce under clause 4 Article 4 of Law of Divorce on 15th February, 1986 vide exhibit 11. The respondent was burdened with the proof of proving the acts constituting the ill-treatment or serious injury as envisaged under the said provisions of law. The burden of proving the fact of leaving matrimonial house in order to avert danger to life was placed on the appellant wife. As regards the custody of the child, the respondent/ plaintiff was required to prove his claim to the custody of his son. 6 S.A.73/2000 7. The record reveals that the respondent /plaintiff examined himself as well as four of his acquaintances, one of them his relation. The appellant responded with her testimony and the evidence of the banker and her brother. It appears that the amendment to the plaint incorporating the ground of de facto separation as envisaged under Clause 8 of Article 4 of Law of Divorce was incorporated in the plaint thereafter. Additional issue in that regard was framed. However, the respondent /plaintiff chose not to lead any further evidence, and the appellant wife, her brother and two others namely DW2-Pushpa Prabhu and DW3-Shivaji Bangui stepped in the witness box to testify for answering the ground of de facto separation taken up by the respondent/plaintiff. 8. The Learned Civil Judge, on appreciation of evidence, registered the finding that the appellant/ defendant succeeded in proving that she had to leave the matrimonial home in order to avert danger to her life and answered all other issues negatively for dismissing the suit with costs. Judgment and decree of the Trial Court was assailed in Regular Civil Appeal no.10/1999 by the respondent husband before the IInd Additional District Judge, Panaji. It was argued on behalf of the respondent husband – the appellant in the said appeal that the 7 S.A.73/2000 divorce was sought on two distinct grounds firstly, ill-treatment or serious injuries and secondly, de facto separation freely consented for 10 consecutive years; and as regards the other ground of de facto separation incorporated later on in the said suit for divorce, the evidence led by the respondent wife therein on the issue failed to establish that there was any attempt of conciliation or reconciliation between the parties during the period of continuous separation commencing from 8th December, 1983 to 8th December, 1993 and for securing the decree on this ground motive or cause for such separation, remained irrelevant. This argument was countered with the submissions that mere 10 years separation was not enough and the respondent / plaintiff had to establish that such separation was continuous and freely consented laced with the absence of intention to reunite i.e. animus non rivertendi; and further for this 10 years period of de facto separation to be a ground of divorce, it must be a period, which has ended prior to filing of the suit; and on preponderance of probabilities, the appellant wife had succeeded in proving the efforts of reconciliation. Submissions were also made on behalf of the appellant wife that she had succeeded in proving before the Learned Trial Court her case of she being meted out cruel treatment at the hands of her husband. 8 S.A.73/2000 9. The learned Additional District Judge, Panaji blamed the Trial Court of lapses in appreciation of evidence and observed that even if it is taken that the case of divorce on the ground of injuria gravis was not proved, the plaintiff remains entitled to divorce on the ground of de facto separation for a period of 10 consecutive years. Admittedly, the defendant had never returned to the conjugal house after leaving it in the year 1983. The Learned District Judge further held that once this ground for claiming divorce has been allowed on amendment, which relates back, it is not open to the defendant to contend that this period of 10 years should have lapsed prior to the institution of the suit and not during its pendency. It is in this context, that the questions seen as substantial one at the time of admission of this appeal, crave for their resolution. 10. With reference to the meaning of term 'cruelty' as found in the second edition of legal Thesurus by William C. Burton, learned Advocate Usgaonkar for the appellant wife submitted that the terms 'cruelty and ill-treatment' are synonyms and become relevant in appreciating the facts concerning de facto separation. It is true that one of the dictionary meaning of the term 'cruelty' is oppression as found 9 S.A.73/2000 in the said celebrated work and in turn it also means ‘ill- treatment’. However, the question arises as to how far it is relevant in context with the provision under clause 8 of Article 4 of Law of Divorce. Question (c), therefore, needs to be answered first to find out the relevancy of the alleged cruelty, which has been held to be cause for separation of the warring spouses herein. 11. Clause 8 of Article 4 of Law of Divorce reads as under : 'De facto separation, freely consented, for 10 consecutive years, whatever may have been the cause of that separation.' Paragraph 3 in the said provision provides further elaboration on this point as under : Paragraph 3 - “ In a case coming under clause 8, the evidence shall be restricted to the fact of separation, its continuity and duration.” 12. According to learned Advocate Usgaonkar for the appellant wife, de facto separation freely consented integrates mutual accord of spouses and free consent for separation at its 10 S.A.73/2000 beginning is sine qua none for a decree of divorce on the ground under clause 8 of Article 4 of Law of Divorce. He further submitted that the First Appellate Court did not deal with the issue of free consent and was guided only by the fact of 10 years' separation between the spouses. He cited the judgment of the Supreme Court of Portugal reported in the Bulletin published by Ministry of Justice (Bolatinto Ministerio Da Justica) No.8, 304, September, 1948, Case No.55.872; Fernando Pereira Pinto Vs. Clarinda D Jesus. In the said case, it appears, the husband Fernando instituted a suit for divorce alleging that he was separated from his wife for more than 10 to 12 consecutive years such de facto separation being freely consented. The defendant wife, it appears, pleaded that her husband abandoned her 15 years ago in order to live with his paramour and continued to live with her; and several persons at her instance, had gone to request her husband to come back home, to which, he did not accede to. This suit was dismissed and later on the High Court of Portugal confirmed the said decision followed by the Supreme Court of Justice of Portugal dismissing the review appeal preferred against the decision of the High Court of Portugal. It is in this context that the observations were made by the Hon'ble Supreme Court of Portugal while interpreting clause 8 of Article 4 of Law of Divorce as under : 11 S.A.73/2000 “What cannot be allowed and proved is the reason for separation as it is concluded without any effort from the expression of 'whatever may be the reason for that separation' which reads in the clause 8 read with such paragraph 3 which enjoins to restrict the proof to separation, its continuity and duration. This is what is reduced from the law and not what the appellant avers.” 13. Citing the observations made by the Supreme Court of Justice of the then State of Portugal in the proceeding no.56798 reported in Bulletin of Ministry of Justice No.63 Page 556 on 25th January, 1957, learned Advocate Usgaonkar for the appellant submitted that proof of agreement to separate is indispensable in the claim for divorce on the ground of de facto separation. The relevant observations are as under : “It is indispensable that it is proved that the separation was freely consented by both the spouses, i.e. both had agreed to separate, whatever may the reason for that separation, showing thereby the firm will to put an end to conjugal togetherness. It is necessary that the situation for de facto separation had created, by free will of both the spouses. The circumstances that a spouse, victim of separation, had not asked for the returning house of the plaintiff, 12 S.A.73/2000 does not lead to free consent as required under the law. It is necessary that the separation results from deliberation and from the accord of both the spouses at the time at which it begins.” 14. This view is found voiced in another judgment of the Supreme Court of Portugal in proceeding no.56460 delivered on 18th October, 1955 and reported in Bulletin of Ministry of Justice No.53 page 663, dated 15th January, 1957. 15. Countering these submissions, learned Advocate Pereira for the respondent husband submitted that under Roman Law of which the Portuguese Civil Code is progeny, the concept of binding precedents is unknown and every judicial forum is free to interpret the law independent of the decision of the superior Courts. He proceeded to cite judgment of His Hon'ble Judge Dr. Robert Martins delivered in Folio No.7.273- Abel Adelino Vaz de Sa Vs. Maria D Piedade Antunes de Sa in order to bring before this Court the interpretation of clause 8, Article 4 of Law of Divorce in light of the jurisprudential thought underlying the said provision. The learned Judge Dr. Martins took into account the divergence in the thinking on the interpretation of the said provision of law – on one hand sustaining a view that de facto separation to be freely consented 13 S.A.73/2000 had to be as a consequence of an agreement between the spouses at least on the occasion of separation and on the other hand a view that the factum of separation resultant from an act of one of the spouses with the tacit consent of other is enough. The learned Judge Dr. Martins found that the judgment of the Supreme Court of Justice dated 1st January, 1938 published in the Magazine of Justice year 23 at Folio No.99 supported the first premise. As regards the second premise, he observed: “on the second proposition, Dr. Cunna Gonsalves in his treatise of Civil Law Volume 7 of Folio 44 and Dr. Julio Martins in the Magazine of High Court of Lisbon of the year 1926 at Folios No.81 to 89 supports the said theory.” He further observed that good interpretation of the provision of clause 8 of Article 4 leads to a conclusion that the words 'freely consented' do not mean that separation has taken place by agreement between both the spouses at least at the time of separation as it is ruled in the judgment of Supreme Court of Justice dated 1-2-1938, but it is enough that the separation of the husband and wife has taken place with an intention of breaking the matrimonial ties, and the spouse, who has been abandoned freely or expressly consented in the act of the spouse who abandoned the home which to us means a separation of body and soul. The learned Judge Dr. Martins with the said judgment decreed the suit for permanent 14 S.A.73/2000 divorce instituted by the husband Abel Adelino, who lived separately for 15 consecutive years in Zambezi leaving his wife and two children in Portugal. The learned Judge Dr. Martins reasoned for granting divorce in the said case that (i) de facto separation for more than 10 years without any minor interruption stood proved (ii) free consent on the part of the defendant stood demonstrated from the fact that separation has resulted from the plaintiff unwilling to be in company of his wife and the wife was not willing to reunite with the husband (iii) the wife does not resort to legal remedies for compelling her husband to take her back. The learned Judge Dr. Martins preferred to follow the doctrine defined by Dr. Cunha Gonsalves in his treatise of Civil Law in the following words : “ In my view, the phrase 'freely consented' includes both de facto separation derived from agreement between both the spouses which would be in the rarest of rare cases and also it included the one resultant from initiative of one which the other spouse resile himself for not having legal means to oppose the same or because of his dignity, would not permit him or waiting for reconciliation or to avoid scandal or for other convenience.” 16. Learned Advocate Usgaonkar for the appellants submitted that the opinion of the Supreme Court at Lisbon even 15 S.A.73/2000 if in the nature of obiter dictum is entitled to respect and weight unless it can be shown by convincing reasons that it cannot be sustained. In support of his submissions, he placed reliance on the judgment of the Additional Judicial Commissioner reported in AIR 1968 Goa Daman and Diu 101; Lilawati Naik Vs. Sundari Godekar. Certainly, the word of Supreme Court at Lisbon has its weight and deserves a due respect. However, the words of law and the plain understanding of it ought to supersede every other consideration. Reading of clause 8 of Article 4 of the Law of Divorce shows what is to be freely consented for 10 consecutive years is the fact of separation and the cause for such separation is inconsequential. In keeping with this thought, paragraph 3 of the said Article further requires that the evidence shall be restricted to the fact of separation, its continuity and duration in order to render the said provision meaningful. If one delves deeper in the thought behind this provision, it is not difficult to discover that the theory of irretrievable breakdown of marriage is given effect to in some measure by the said provision. Theologically, every marriage is considered to be union of two persons, both in body and soul. As a corollary to this concept, mere bodily separation of the spouses is not enough for divorce. Spouses may separate bodily, but if one of the spouses soulfully desires an union and 16 S.A.73/2000 demonstrates this desire during the period of separation of the two, it can not be said that it is a separation of the spouses freely consented. However, if it is shown that there was no such desire to unite on the part of the spouse contesting the claim for divorce during the period of 10 consecutive years of separation, it can very well be said that the claim for divorce on the ground of freely consented de facto separation under Clause 8 of Article 4 of Law of Divorce ought to succeed. Similar thought is found expressed in the unreported judgment of this Court delivered by the learned Single Judge in F.A. No. 66/1997- Alverta Laurento Fernandes Vs. Maria Alsa D. Alvaree Gomes on October, 20, 2000. 17. In the considered opinion of this Court, therefore, paragraph 3 of clause 8 of Article 4 of Law of Divorce requires restricting the reading of the evidence to the fact of separation including the intention not to reunite i.e animus non rivertendi, its continuity and duration while interpreting the provision of clause 8 of Article 4 of Law of Divorce, and for understanding freely consented de facto seperation, the cause/reason is inconsequential. The Que. ‘C’ is, therefore, answered accordingly. 17 S.A.73/2000 18. Questions (a) and (b) which were found to be involved in the present case at the time of admission of the present appeal essentially are concerning the efficacy of the amendment to the plaint incorporating an additional ground for divorce after institution of the suit for divorce on other ground. Learned Advocate Usgaonkar for the appellant submitted that Article 6 of Law of Divorce required the plaintiff to make precise statement of facts giving rise to cause of action in the plaint at the time of institution of the suit and, therefore, later amendment incorporating the facts leading to the cause of action is of no assistance. He further submitted that the plaintiff ought to have brought a separate suit on the ground under clause 8 of Article 4 of Law of Divorce as the amendment made to incorporate the said ground is of no consequence. In support of his submissions, he cited the judgment reported in (2001) 6 SCC 163; Vishwambhar and others Vs. Laxminarayan through L.Rs. and others. According to him, the amendment though properly made cannot relate back to the date of filing of the suit and as such, no relief of divorce could have been granted on the ground under clause 8 of Article 4 of Law of Divorce in the suit thus amended by the First Appellate Court. In response thereto, learned Advocate Pereira for the respondent husband submitted that the ground for divorce 18 S.A.73/2000 under clause 8 of Article 4 of Law of Divorce became available during the pendency of the said suit with the passage of time and, therefore, to avoid multiplicity of proceeding with consequent prolongation of litigation between the parties the plaint in the suit for divorce was amended. Inviting the attention of the Court to Order II, Rule 3 of C.P.C.,1908, he submitted that no wrong was done by the respondent/ plaintiff by uniting in his suit other ground based on later developments or the facts; and Article 6, which is corresponding to Order VI, Rule 2 of C.P.C.,1908, is not a bar to the amendment of the plaint to incorporate the necessary facts to sustain the ground/s for divorce in the pending suit. In support of his submissions, he relied on the judgment of the Supreme Court reported in (2009) 10 SCC 197; Jaiprakash Gupta (dead) through L.Rs. Vs. Riyaj Ahmed and another. 19. Article 6 of the Law of Divorce requires the plaintiff to make precise allegations giving rise to any one of the grounds listed under Article 4 therein. Nowhere in the said Article, there is any prohibition on the amendment of the plaint as resorted to by the plaintiff for incorporating the precise allegations in respect of an additional ground of divorce in the plaint. This can be seen from the text of Article 6, which is reproduced 19 S.A.73/2000 hereunder : “Article 6 – In the plaint of the suit, the plaintiff shall allege precisely any one of the facts listed under Article 4 as the lawful ground for divorce as well as file the marriage certificate, and when the relief is based on any of the grounds mentioned under clauses 3 and 7 of the same Article the certified copy of the respective judgment, become final for want of appeal.” Sole paragraph – In the same petition, the plaintiff shall give his say regarding the custody of minor children, if any, their maintenance and any other matter of which it may be necessary