1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEALS NO. 260 & 316 OF 2008 FIRST APPEAL NO. 260 OF 2008 Ms. Kiran Kamat alias Kiran P. Parrikar, major, married, R/o. C/o. B-365, House of Lords, Opp. Goa Marriot Resort, Miramar, Panaji, Goa. ....... Appellant. V/s. Mr. Molu Vitola Camotim, alias Pankaj Kamat, major, married, R/o. Opp. D.B.M. School, Near Dena Bank, Sonarbhat, Verem, Reis Magos, Goa, Proprietor Filmax Marketing, Gajanan Smruti Building, Near Mapusa Clinic, Mapusa, Bardez, Goa. ....... Respondent. Ms. A. A. Agni, Advocate for the appellant. Mr. M. B. D'Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the respondent. FIRST APPEAL NO. 316 OF 2008 Mr. Molu Vitola Camotim, alias Pankaj Kamat, major, married, R/o. Opp. D.B.M. School, Near Dena Bank, Sonarbhat, Verem, Reis Magos, Goa, 2 Proprietor Filmax Marketing, Gajanan Smruti Building, Near Mapusa Clinic, Mapusa, Bardez, Goa ....... Appellant. V/s. Ms. Kiran Kamat alias Kiran P. Parrikar, major, married, R/o. C/o. B-365, House of Lords, Opp. Goa Marriot Resort, Miramar, Panaji, Goa. ....... Respondent. Mr. M. B. D'Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the appellant. Ms. A. A. Agni, Advocate for the respondent. CORAM :- A.S. OKA, J. Date :- 6th August, 2010. ORAL J U D G M E N T : 1. These are cross appeals preferred by the husband and the wife, arising out of a decree passed in a suit for divorce filed by the wife against the husband. 2. By the impugned Judgment and Decree, the prayer for grant of decree of divorce was rejected. However, the husband was directed to hand over possession of the key of Locker No. 157 standing 3 in the Mapusa Urban Co-operative Bank of Goa, Mapusa Branch to the wife. The counter claim made by the husband as regards order of custody of the minor children was partly allowed. The Court retained the custody of the children with the wife. However, granted visitation rights to the husband. The appeal preferred by the wife challenges that part of the impugned Decree by which the prayer for divorce has been dismissed. The appeal preferred by the husband takes an exception to that part of the Decree whereby he was directed to hand over possession of the key of the bank locker. 3. It must be noted here that by consent of the parties, Mr. R. G. Ramani, learned Advocate was appointed as a Mediator. The learned Counsel appearing for the parties stated that the Mediator held a number of meetings with the parties. A report of the learned Mediator placed on record shows that after the fifth meeting with the parties, the terms of settlement were settled and finalised between the parties. According to the learned Mediator, draft of settlement terms was made and copies thereof were handed over to both the parties. However, thereafter, the settlement fizzled out. In fact, after the appeals were heard for sometime, Court directed the parties to remain 4 present in the Court and the appeals were taken up in the Chamber. Mr. R. G. Ramani, learned Counsel appointed as the Mediator also remained present in the Chamber and with his assistance, an effort was made to put an end to the dispute. However, the parties could not come to terms and that is how the appeals were taken up for final hearing. Before dealing with the merits of the matter, it must be stated here that the learned Counsel appearing for the parties stated that the learned Mediator tried his level best to put an end to the dispute, but unfortunately settlement could not be ultimately arrived at. 4. With a view to appreciate the submissions made by the learned Counsel appearing for the parties, it will be necessary to briefly refer to the facts of the case and the pleadings. It must be stated here that the ground invoked by the wife is under clause (4) of Article 4 of the Law of Divorce. The ground is of illtreatment or serious injuries. 5. The marriage between the parties was solemnized on 24th November, 1993. There are two children born from the marriage. A son by name Yash was born on 12th February, 2000 and a daughter by name Priyanka born on 21st June, 2002. Thus, the age of the minor son 5 is 10 years and the age of the minor daughter is 8 years. There are various allegations made by the wife against the husband of the alleged illtreatment and the acts of cruelty. Various incidents have been set out in the plaint. It is stated that after about 2 months from marriage, the wife realised that the husband was addicted to alcohol. The first incident narrated allegedly took place between 8th to 10th June, 1994. The said incident is narrated in paragraph 11 of the plaint, which reads thus : “ 11. That in the month of June – that is, between 8th to 10th June, 1994, - one evening at around 3.30 p.m. the Defendant, his niece Supriya, and the Plaintiff were sitting in the hall, when the Defendant and his sister Roshan picked up a quarrel over a derogatory statement made by the Defendant against the said sister Roshan. The Plaintiff further states that she intervened when the Defendant went to hit the said sister Roshan to protect the latter, but the same backfired on the Plaintiff as the said Roshan instead pulled both the mangalsutras that the Plaintiff was wearing (that is the one put by the mother as also the one put by the Defendant) and in the process the former broke. The said Roshan also roughly pushed aside the Plaintiff and at that time, the Defendant's mother emerged from her hiding place and caught the Plaintiff's neck accusingly charging “oozo kiteak lailo gharant” (loosely translated as why are you instigating people in the house?) whereupon the Defendant pulled her hand and told her to talk to him. The Defendant's mother then started bad mouthing the Plaintiff and her family with abusive and foul expressions like “tujea 6 gharar sunea chadhu”, “tujem nisantan javu” and also started cursing the marriage-mediator Vasanti that she had stated that the Plaintiff was coming from a good family when according to her (the Defendant's mother), she was not. The Defendant's sister Roshan then followed suit. Additionally, the Defendant's other sister Archana sought to poison the Defendant's mind against the plaintiff by attributing certain words to the Plaintiff taken completely out of context. This incident of the derogatory reference by the Defendant to his said sister Roshan thus became a launching pad for the Defendant and his family to vitiate the Plaintiff's life and fill it with sustained animosity and hostility towards the Plaintiff.” 6. The significant incident is of 17th August, 1994 when the wife was operated upon and was admitted to a hospital. The allegation is that after the wife recovered from the effect of anaesthesia, the husband even declined to serve a glass of water when the wife badly needed water. She has stated what transpired during her hospitalization. It is alleged that the husband had preferential relationship with his niece by name Supriya. It is alleged that in August or September, 1994, her husband showered filthy abuses on his mother. It is alleged that on one day, the husband took the wife's signature on a cheque drawn for an amount of few thousands stating that he will return the amount within few days. It is stated that the 7 husband did not want the wife to work, but he failed to pay her any amount for meeting her personal expenses. It is alleged that the wife used to depend on the money given to her by her own relatives and the money paid on occasions of birthday and the festivals like Diwali. It is stated that the husband used to get violent with her without any provocation or reason. It is stated that one day the husband got so violent that he caught hold of the wife by pulling her dress and tearing it and then hit the wife, pulled her by hair and shook her violently and the husband continued showering the choicest abuses and obscenities on the wife. It is alleged that the husband used to taunt the wife saying that she is from a beggar's family. 7. In paragraph 26 of the plaint, the wife narrated the incident of November, 1994. Paragraph 26 reads thus : “ The Plaintiff states that sometime in November, 1994, the Plaintiff suggested to the Defendant that they go for a consultation to the gynaecologist Dr. Kedar so that they could have a baby. The Plaintiff states that at this suggestion the Defendant kicked up a row, pushing the Plaintiff and telling her to go home there and then, and that he did not wish to stay married to the Plaintiff and further that he was willing to drop the Plaintiff off at her natal home. 8 The Defendant dragged the Plaintiff to his car, but did not muster courage to pull the Plaintiff out of the car when he drove up to her natal house. The Defendant then drove around and forced her out of the car abruptly somewhere on the way and when he noticed her advancing towards the river bank, returned and pushed the Plaintiff in the car again. The Defendant then remarked to the Plaintiff that he had gone through his cruel charade because he was angry that she had not eaten the mutton which was sent by his sister Archana and which he referred to as “Supriya's mutton”. It is stated that one night when the husband and the wife had gone for a dinner with husband's friends, in the presence of the husband's friends, she was abused by the husband. 8. The case made out by the wife is that after the birth of son Yash, the husband resumed his habit of drinking. It is stated that while under the influence of alcohol the husband used to wake up the son and make him play with him and when Yash was getting tired or irritable, the husband used to utter vulgar and filthy phrases while talking to the child. 9. Another allegation is made regarding behaviour of the husband on the first birthday of the daughter, which was celebrated on 9 21st June, 2003. It is stated that after the birthday celebration was over, the husband came upto the wife and kicked her all over her body and even on her head. In paragraph 43 of the plaint, it is alleged that on 1st, 5th, 12th and 13th August, 2003, the husband repeated his acts of spitting on the wife and slapping and pulling her hair, and showering bad words on her. Other material allegation is as regards the incident of 20th August, 2003 which allegedly took place in the house of the parents of the wife. Paragraph 45 of the plaint reads thus : “ 45) The Plaintiff states that on 20th August, the Defendant came completely drunk at 2.00 a.m. in the night to the Plaintiff's father's house and created a loud scene . The Plaintiff states that the Defendant threatened to take Yash and that if he was obstructed, he would hit the Plaintiff and her natal family members and then get the police himself and come to take Yash, and that the Plaintiff could keep Priyanka. The Plaintiff states that the Defendant had no regard for the unearthly hour at which he was subjecting the Plaintiff and the Plaintiff's family to his hostile behaviour. The Plaintiff states that the Defendant showed no regard whatsoever for the fact that in the house there was an elderly, ailing and bed-ridden women who was the Plaintiff's mother. The Plaintiff furthers states that the Defendant repeated his threats in the presence of her natal family members, in response to which the Plaintiff's brother Nitin Parrikar tried to talk some sense into the Defendant. The Plaintiff states that on the previous day the Defendant had telephoned the Plaintiff's brother Nitin and said he wanted to divorce the Plaintiff 10 and that in three months she would be free to re- marry or take up prostitution and further stated that he would send the Plaintiff's clothes most of which he in effect did not send the following day. The Plaintiff states that her mother was very sick at the time and the Defendant knew about it as he had been told the same by her brother Nitin. The Plaintiff states that the irresponsible and intimidating behaviour of the Defendant contributed to a worsening of the Plaintiff's mother's condition and she passed away on 24th August, 2003.” 10. Another allegation is that the husband and his father have committed inappropriate incestuous acts on the son. It is alleged that on Fridays and Saturdays, the defendant was indulging in uncontrolled and extensive drinking. It is stated that on 10th September, 2003, the husband assaulted the wife so severely that she had bruises on her head and hand, and her back was in pain. Paragraph 53 of the plaint reads thus : “ 53) The Plaintiff states that the defendant once again assaulted the Plaintiff very severely on 27th September, 2003 and demanded that the Plaintiff undertakes an oath on a picture of Lord Ganapati that she did not have sex with her brother Nitin and to ask Lord Ganapati to do “satyanash” of her father and brother Nitin. The Plaintiff states that she obliged him on the first count but could not bring herself to oblige him in terms of asking Lord Ganesh for the destruction of her own father and brother. The Plaintiff further states that on 28th September, 2003, the Defendant returned home 11 drunk and started both verbally abusing the Plaintiff with filthy language and physically abusing her by pulling her hair, and kicking and slapping her and even attempting to choke her. The Plaintiff states that as if this was not enough trauma to go through, the Defendant even resorted to telephoning the Plaintiff's brother Nitin insinuating about the nature of his work; this was followed by telephone calls in succession to his sister Archana and Archan's husband Vinay, where he bad- mouthed the Plaintiff and asked for help in initiating divorce against the Plaintiff. The Plaintiff states that after this, the Defendant kicked her on the chest and threatened that he will kill her, even as he kept asking the Plaintiff when she will divorce him. The Defendant further threatened the Plaintiff that if she stayed on, she might get murdered by him, and then went on to restate his accusation that the Plaintiff was having an affair with her brother Nitin.”. 11. After the evidence was substantially recorded, the plaint was allowed to be amended by adding paragraph 56-A which reads thus : “56-A) The Plaintiff states that the inappropriate acts in which the defendant as also his father was indulging, were by way of playing with/fondling/ touching the private parts of the minor child Yash. The Plaintiff was shocked to note that the defendant and his father were committing such acts oblivious of the fact that it would lead to the child developing unnatural habits and it would certainly be detrimental to the normal growth of the minor child. The Plaintiff has personally seen the defendant and his father committing such acts on several occasions in the year 2003 as also during the end 12 months of the year 2002.” 12. Thereafter, the wife came out with a case that the things took a turn for the worse and on account of physical and mental torture she was compelled to leave the matrimonial home and she started residing with her parents. It is stated that the wife also lodged a police complaint. It is contended in the plaint that the gold jewellery lying in the Bank locker was owned by the wife. 13. Written statement was filed by the husband. Apart from denying the adverse allegations, there are certain allegations made regarding the conduct of the wife. There is counter claim filed seeking the custody of the minor children. 14. The learned Counsel appearing for the appellant has taken the Court through the notes of evidence, documents on record and the evidence recorded by the learned trial Judge. She submitted that there was no reason to discard the testimony of the wife and her brother on the acts of illtreatment by the husband and causing injuries. She submitted that the husband has not chosen to examine any other person 13 as an independent witness. Inviting attention of the Court to the relevant findings recorded by the learned trial Judge, she submitted that the learned trial Judge has adopted a hyper-technical approach. She submitted that the entire approach of the leaned trial Judge was perverse. She pointed out that the learned trial Judge has misread the entire evidence. She pointed out that the factual statement made in paragraphs 21 of the Judgment that the wife deposed that she did not see the husband drinking alcohol is completely erroneous. She submitted that there is no reason to discard the evidence of the brother of the wife. The learned Counsel relied upon a decision of the Apex Court in the case of Parveen Mehta vs. Inderjit Mehta, (2002) 5 SCC 706). She submitted that apart from the fact that the evidence of illtreatment is proved beyond reasonable doubt, this was a case where there is a complete failure of the marriage and the marriage has irretrievably broken down. She submitted that the fact of the irretrievable breakdown of the marriage will have to be considered by this Court. She pointed out that the allegations made against the husband and the husband's father about sexual abuse of the child Yash have been established by the evidence of Child Psychologists. The learned Counsel, therefore, submitted that this was a case where the 14 ground of illtreatment was established and a decree of divorce ought to have been passed. 15. The learned Senior Counsel appearing for the respondent pointed out that the version of the witnesses examined by the wife is clearly exaggerated. He submitted that there are no independent witnesses examined to prove the allegation of illtreatment. He pointed out the evidence of the Psychologists. He submitted that the concerned Psychologists have invited an answer from the son Yash. He submitted that the last expert/Psychologist was examined by the wife at the fag- end of the trial. He invited attention of the Court to the Roznama dated 4th April, 2008. He pointed out that when recording of evidence of both sides was concluded, after taking several adjournments, an application for amendment of the plaint was made. He pointed out that the last Psychologist examined by the wife cannot be said to be an independent witness. He pointed out that the Psychologist admitted that her father was a practising Advocate and that he was a good friend of the Advocate representing the wife. He submitted that the wife has chosen to make scandalous allegations against the husband, as also against his father which could not be substantiated by evidence. He pointed out that in 15 the present suit, no finding could have been recorded on the issue of title as regards the goods in the Bank locker. In any case, there is no finding that all goods in the Bank locker are owned by the wife. It is submitted that the decree passed directing handing over of key of the Bank locker to the wife is illegal and without jurisdiction and that part of the Decree deserves to be quashed and set aside. 16. By way of reply, the learned Counsel for the wife submitted that there has been a complete breakdown of the marriage and considering the illtreatment meted out to the wife, this was a fit case for passing a decree of divorce under clause (4) of Article 4 of the Law of Divorce. 17. In support of her case, the wife deposed by filing an affidavit-in-lieu of evidence. She has narrated various incidents leading to ultimate separation between the parties with effect form September, 2003. As stated in the plaint, the wife narrated as to what transpired on 17th August, 1994 when she underwent a major surgery on account of detection of ectopic pregnancy. The wife stated that in the year 1994, around end of August or September, there was an 16 incident when the husband showered filthy abuses on his own mother and then proceeded to slap her on her face. It is pointed out in the affidavit that as a result of the said incident, the husband's father prohibited both the husband and the wife from having meals in the house for about 20 days. She narrated that the husband used to get violent without any provocation or reason. She stated that once he became so violent that he caught hold of her and tore her dress. Not only that the husband assaulted her, but he pulled her heir and shook her violently. According to the wife, the husband used to tell her that she was fit only for prostitution. 18. Subsequent incident of November, 1994 has been set out by the wife in her deposition. She stated that when she suggested that they should consult a gyneachologist as she was not conceiving, the husband kicked up a row and pushed her. He dragged her to his car. She stated that after driving the car for sometime, the husband forced her out of the car abruptly on the way and when she started proceeding towards the river bank, he returned and pushed her back in the car. Another incident stated by the wife that took place when the husband and the wife along with friends of the husband had gone out for a 17 dinner. In paragraph 19 of the affidavit-in-lieu of Examination-in- Chief, she has stated thus : “I say that one night at the River Rays restaurant where I and the defendant had gone out for dinner with the defendant's friends, the defendant started abusing me in the presence of all the people present, saying that I was a dirty woman and started showering vulgar and filthy abuses on me. I say that the defendant would take delight in creating a scene in the presence of others so that it was apparent that all was not well between us. I say that, on one such occasions, when the defendant and I had gone to Pernem at the defendant's sister's place for Bhaubheej, he behaved very rudely with me and was completely dismissive of me. At that time the defendant insulted me by telling me not to come to the bed room as he wanted to sleep and then signalled to his niece Supriya to follow him and shut the door.” 19. The wife has made serious allegations against the husband concerning his behaviour with the minor son Yash. In paragraph 23, the wife has stated thus : “23. I say that when I went to the Verem house with Yash for Gudi Padva that year (2000) and instead of being happy on his son's arrival, the defendant chose to create an excuse to fight with me and got violent. The defendant further telephoned my brother demanding that he should come and take me back to my parents house. I say that the defendant immediately resumed his drunken binges and would abuse me as soon as he entered our bedroom. The defendant would wake Yash up and make him play with him and when the baby Yash got tired or 18 irritable, the defendant would call him “kutro bavdo” and utter other vulgar and filthy phrases such as “avai zouno”. I further state that the defendant has even gone to the extent of slapping our child Yash hard on his face when he was barely one and half