:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.101 of 2001 Mrs.Meera Raju Mandlik .. Appellant V/s Shri Raju Martand Mandlik .. Respondent Shri N.K.Mudnaney for the Appellant Shri Rajiv Desai i/b N.B.Shah for the Respondent CORAM CORAM CORAM:S.B.MHASE AND S.R.SATHE,JJ. DATED:12th July, 2005 ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT :- (Per S.R.SATHE,J.) 1. The Appellant original Respondent in Marriage Petition NO.595 of 1998 has preferred this Appeal against the judgment and order passed by the Court of Family Court No.2, Pune, whereby the petition for divorce filed by Respondent-husband claiming divorce on the ground of cruelty and desertion was allowed, 2. The brief facts giving rise to this appeal are as under : . The marriage of appellant Meera took place with respondent Raju Mandlik as per Hindu Rites on 11-5-1993 at Chembur, Mumbai. Both of them are highly qualified :2: and it was their arrnaged marriage. After marriage both of them went to Mahabaleshwar for honeymoon during the period from 13-5-1993 to 16-5-1993. Thereafter for 2 days both of them stayed at Chembur and then they returned to the house of respondent at Lonikand, Pune and stayed there upto 22-5-1993. As respondent husband was serving in Coco Cola bottling company at Gambia, West Africa, both of them went to Gambia on 26-5-1993. They had happy time at Gambia . On 21-7-1994 appellant wife returned to India for her delivery. She was received at the Air port, Mumbai by her in-laws and they took her to their house at Pune. Customary rituals of Dohaljevan Dohaljevan Dohaljevan were celebrated at Pune. After few days she returned to her maiden home at Chembur. On 30-9-1994, appellant wife gave a birth to a male child. When it was informed to in-laws of the appellant they went to Chembur to see their daughter-in-law and grand son. During the period when appellant was in the hospital, the respondent husband contacted her on telephone from Gambia. 3. On 18-3-1995 the respondent husband returned to India for short stay. However, after returning to India he straightway went to Pune. According to him the appellant wife was informed about his arrival but she did not return to Pune. As the respondent was suffering from Ulcer and Appendix, he was admitted at Dindayal Hospital, Pune during 9-5-1995 to 18-5-1995 and required :3: to undergo surgery. It is the case of the respondent husband that though the appellant was informed about his illness and operation she did not contact him nor she returned to Pune. He waited for her till 2-6-1995 but she did not come. Ultimately, the respondent returned to Gambia on that day to join his duties. 4. On 21-6-1996 the respondent husband returned to India and tried to contact the appellant. On 26-6-1996 the appellant told the respondent that he should come to the residence of respondent’s friend Kumar at Vashi and they will have a talk at his place. Accordingly, respondent went to his friend Kumar’s house at Vashi. The appellant had also come there. Both of them talked to each other and respondent took the appellant and son to Pune on 27-6-1996. According to respondent there appellant used to pick up quarrels on trifle matters. On 2-7-1996 naming ceremony of newly born child took place and he was named as Palash alies Mehul. According to the respondent he had invited his in-laws for the said naming ceremony (Barse) but they did not come. On 3-7-1996 the mother of appellant contacted her on telephone and expressed her displeasure as the grand son was named as Palash. On that day the appellant picked up quarrel with respondent and expressed that she will not stay at Pune with her in-laws. In order to avoid any further dispute the respondent took the appellant for South India tour on 4-7-1996. They returned from :4: said tour on 7-7-1996 at about 6-00 p.m. During the said tour both of them had happy time. On the day they returned to Pune, appellant’s parents went to the house of respondent and told him that they would take Meera i.e. appellant with them. Naturally, it was not liked by the respondent husband and he told them that they should not take her. However, they picked up quarrel with respondent and his parents. On the next day i.e. on 8-7-1996 appellant’s brother went to the house of respondent and again there was some quarrel and they took appellant with them. Not only that but at the instance of mother of the appellant, the appellant went to Kothrud Police Station and filed a false complaint against respondent husband and his parents for the offences punishable under section 498A, 323, 504, 506 read with 34 of IPC. On the basis of the said complaint, Police registered the offence and arrested the respondent and his parents. However, the said case ultimately resulted in their acquittal. According to respondent on 8-7-1996 as per demand made by the appellant he handed over her ornaments to her at Kothrud Police Station. The appellant also filed an application under Sections 18 and 20 of Hindu Adoption and Maintenance Act against the respondent husband in the Family Court, Bandra, Mumbai. As the appellant had treated respondent with cruelty by filing a false Criminal case and deserted him without any cause on 8-7-1996, he also filed Petition for divorce bearing :5: No.1012 of 1996 in the Family Court at Pune. 5. In the maintenance petition filed by the appellant she submitted an application before the Court and prayed that the respondent be restrained from going to Gambia and his passport be impounded. 6. During the pendency of the maintenance petition the appellant and respondent agreed to put an end to their dispute and file Consent terms. Accordingly, on 4-2-1997 both of them signed the consent terms whereby they agreed to unconditionally withdraw the allegations made against each other. It was also agreed that respondent should withdraw his Marriage petition No.1012 of 1996 filed for divorce in the Family Court at Pune. Respondent agreed to take appellant to Gambia and make the necessary arrangement for tickets of appellant and son Mehur @ Palash. Thus both of them agreed to stay together. On 5-2-1997 respondent went to Gambia. After reaching there he contacted the appellant and also sent the tickets for appellant and son Mehur @ Palash. The appellant wife however submitted an application dated 1-4-1997 in the Family Court, Mumbai and withdrew herself from the consent terms. Not only that but she filed separate application under Order 39 Rule 2A of Code of Civil Procedure and submitted that respondent has left India though there was an injunction order against him and as such he be detained in civil prison. :6: The respondent gave reply to the said application and ultimately the Court dismissed the said application. The appellant refused to take tickets provided by respondent and declined to go to Gambia. All this caused further mental agony to the respondent. In the meantime as agreed in the Consent Terms he had withdrawn his divorce petition NO.1012 of 1996 filed in the Family Court at Pune. 7. As the appellant had withdrawn herself from consent terms and treated respondent with cruelty and left him on 8-7-1996 and thereafter never returned to him and thus deserted him for a continues period of 2 years, he filed second petition for divorce against his wife in the Family Court at Pune. 8. The appellant filed her written statement at Exh.21 and opposed the petition. She contended that as she had filed petition for maintenance in the Family Court, Mumbai with a view to give go bye to the said petition and harass her, the respondent husband filed false petition for divorce. She admitted that after her marriage with respondent, for few days they stayed together at Pune and thereafter she had accompanied the respondent to Gambia. There she lived happily with respondent and when she was pregnant, on 18-3-1995 she returned to Mumbai. She also admitted that she gave birth to a male child on 30-9-1994. She however, :7: contended that when respondent had come to India and was aware that appellant and son were at Mumbai he did not care to see them and on the contrary straightway went to Pune and thus it indicated that relations between appellant and respondent were strained since the birth of Palash. The appellant further contended that during the period when she was residing at Mumbai, at her maiden home, the respondent and his parents had contacted her on telephone from time to time and given threats and as a result of the same there was apprehension in her mind that respondent and his parents would cause hurt to her and then in that event it would not be possible for her to go to any other place at Pune and as such she did not go to Pune. According to her she was never informed about the illness of respondent or about surgery which he had undergone at Pune. It is her case that respondent used to tell her that she should behave as per the wishes of his parents and gave threats that if she would not behave accordingly she would be required to face grave consequences. 9. The appellant further contended that meeting of the parties at Kumar’s residence at Vashi would indicate that respondent was not ready to take the appellant with him. However, considering the future of their son she agreed to accompany respondent to Pune and accordingly they went to Pune on 26th/27th June 1996. It is her case that the during period from 26th June to 2nd July :8: 1996, respondent’s parents were insulting and taunting her and had also given threats. Though it was agreed to name the child as Mehul, at the instance of the respondent’s parents he was named as Palash. 10. The appellant also contended that she had informed her parents about the ill-treatment meted to her and hence her parents had come to Pune on 7-6-1996 to take her with them. Respondent and his parents used abusive language to them and picked up quarrel and hence she filed a complaint against them at Kothrud Police Station. 11. She admitted that consent terms were signed by her but contended that before any order was passed on the consent terms, the respondent husband after reaching Gambia gave threats to her on telephone and as a result of the same she was constrained to withdraw from the consent terms. According to her, the respondent had sent the air tickets only to make a show. His real intention was to get rid of maintenance application and then harass her. When she realised the said intention she filed an application for withdrawing from the consent terms. Lastly, she contended that she never ill-treated the respondent nor deserted him but as the respondent and his parents treated her with cruelty, she was constrained to leave her matrimonial home. Hence on all these grounds the appellant wife prayed for :9: dismissal of the petition. 12. In order to prove his case the respondent husband examined himself at Exh.13 and his father at Exh.16. As against this the appellant wife examined herself at Exh.33. Both the parties produced certain documents. 13. After considering the evidence adduced by both the parties the learned Family Court Judge, Pune came to the conclusion that the Respondent husband has proved that the appellant treated him with cruelty and he was deserted by her for a continuous period of 2 years immediately preceding the filing of the petition. Naturally, the learned Judge passed decree for divorce in favour of the respondent husband. 14. The above mentioned decree is challenged by the appellant wife in this appeal. Shri Mudnani, learned Advocate for the appellant has urged four points before us. Firstly, he submitted that as respondent had withdrawn his earlier Petition NO.1012 of 1996 unconditionally, the subsequent petition filed by him was not maintainable in view of the provisions of Order 23 Rule 1(4) of Code of Civil Procedure. Secondly, he canvassed before us that that as in the consent terms Exh.34, both the parties have stated that both of them have agreed to unconditionally withdraw the allegations made against each other, all earlier alleged acts of :10: cruelty as well as the act of desertion stand condoned and as such respondent husband is not entitled for a decree of divorce on the ground of cruelty and desertion. Thirdly, he submitted that there is no evidence with regard to acts of cruelty subsequent to withdrawal of the earlier petition and the learned Family Court Judge erred in considering the earlier conduct of the appellant. Lastly, he submitted that period of 2 years had not lapsed from withdrawal of earlier petition and as such it cannot be said that appellant had deserted the respondent for a period of 2 continues years immediately preceding the filing of petition. He therefore submitted that the appeal be allowed and the decree for divorce be set aside. 15. Mr.Rajiv Desai, learned advocate for respondent supported the judgment and order passed by the Family Court Judge and submitted that the contention with regard to the application of Order 23 Rule 1(4) of Code of Civil Procedure was not taken by the appellant wife in her written statement. Besides this, the respondent husband had in fact acted in pursuance of consent terms and withdrawn the earlier petition but the appellant backed out from the said consent terms and as such it cannot be said that there was a real withdrawal of his earlier petition as contemplated under Order 23 Rule 1(4). Nor it can be said that the earlier conduct or action of the appellant was condoned by the respondent. :11: Lastly, he submitted that there is sufficient material to show that the appellant wife caused mental cruelty to respondent and deserted him on 8-7-1996. He, therefore, submitted that appeal be dismissed. 16. It is not in dispute that the marriage of appellant and respondent took place at Chembur on 11-3-1993 and after few days both of them went to Gambia, West Africa on 26-5-1993. They lived happily at Gambia and when appellant was pregnant she returned to India on 21-7-1993 and immediately went to Pune at the residence of respondent’s parents. She stayed there for few days and then went to her maidan home and on 30-9-1994 gave birth to a male child. Thereafter some dispute started at the time of naming ceremony. It is also an admitted fact that on 8-7-1996 the Appellant wife left her matrimonial home and went to Chembur at her maiden home and thereafter she filed a petition for maintenance in the Family Court at Bandra,Mumbai. Respondent husband also filed Petition No.1012 of 1996 for divorce in the Family Court, Pune. It is not in dispute that on 4-2-1997 both the parties signed the consent terms in the maintenance Petition and in pursuance of the same the Respondent husband withdrew his divorce petition unconditionally. 17. The first and foremost objection of the learned Advocate for the Appellant wife is that present petition :12: filed by Respondent husband for divorce is not maintainable in view of the provisions of Order 23 Rule 1(4) of Code of Civil Procedure. It would be worthwhile to see what the said provision says : Order 23 Rule 1(4): 1. Withdrawal of suit or abandonment of part of claim -(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim. (2) An application .. . . . ..... (3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such term as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with :13: liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. (4) Where the plaintiff - (a) abandons any suit or part of claim under sub rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. 18. At the outset it must be mentioned that admittedly the earlier petition was withdrawn by the Respondent husband unconditionally. Besides this, while considering the above mentioned provision one should not take into consideration only the technical aspect but must see the object with which the above provision has been made. The object of the rule is not to enable the plaintiff, after he has failed to conduct his suit with proper care and due diligence, to obtain an opportunity of commencing the trial afresh in order to avoid the :14: result of his previous bad conduct of the case so as to prejudice the other party. It is needless to say that the right given to party under Order 23 Rule 1 of Code of Civil Procedure has to be necessarily viewed in the context of the facts of each case. So, in order to find out as to whether respondent husband can be non suited on this technical provision, it is absolutely essential to see the circumstances under which the respondent husband withdrew his earlier petition. 19. The copy of the consent terms signed by both the parties on 4-2-1997 is produced at Exh.34. As per the said consent terms both the parties agreed to give up their allegations against each other and it was decided that respondent should withdraw his petition NO.1012 of 1996. Even the appellant wife has also clearly admitted that it is only because of the said condition embodied in the consent terms the respondent withdrew the said petition and there was no other reason for the same. Admittedly, the appellant wife subsequently backed out from the consent terms and after a period of two months from the consent terms, she submitted an application seeking permission to withdraw from the consent terms. It is also an admitted fact that appellant did not comply the conditions which she was supposed to comply in pursuance of the said consent terms. It is also admitted that the Court has not actually recorded the said consent terms and disposed of the maintenance :15: petition. So, the consent terms have in fact not come into effect or operation. Thus, it is quite evident that it was not a case where the respondent sue moto, voluntarily or unilaterally decided to withdraw the petition. As a part of consent terms he withdrew the said marriage petition but when we find that as the said consent terms have not been actually put into effect by the parties, the earlier withdrawal of the petition cannot be considered to be a real, genuine withdrawal of the petition as contemplated under Order 23 Rule 1(4) of Code of Civil Procedure. Certainly, it was also not a case that there was any lacuna or defect in the petition or that due to any negligence on the part of the Petitioner he was required to withdraw the said petition. So, it was certainly not a case where the respondent husband had abandoned part of his claim unconditionally.So, taking into consideration the peculiar facts and circumstances of this case we are not inclined to accept the argument advanced by the learned Advocate for the appellant wife when he says that present petition is not maintainable in view of Order 23 Rule 1(4) of Code of Civil Procedure. 20. The two authorities cited by the learned Advocate for the appellant on this point viz. Narayan Jethanand and Ors. V/s Asapuri Vijay Saw Mill AIR 1995 Guj. 194 AIR 1995 Guj. 194 AIR 1995 Guj. 194 and Secretary, Bangalore Turf Club and Ors. V/s Kishan Srivatsava and Anr. AIR 1996 Kar. 306 AIR 1996 Kar. 306 AIR 1996 Kar. 306 are not :16: applicable to the facts of the present case. In the above stated two cases the earlier suit was withdrawn by the plaintiff unconditionally and subsequent suit was for the same subject matter. Naturally, it was held that such subsequent suit is not maintainable. However, in the instant case as pointed out by us above, in view of the peculiar circumstances it cannot be said that there was withdrawal of a suit in real sense as contemplated under Order 23 Rule 1(4) of Code of Civil Procedure. 21. The second limb of the argument of the learned Advocate for the appellant is that in the consent terms it was mentioned "the Petitioner and Respondent have agreed to unconditionally withdraw the allegations made against each other", and so the alleged acts of cruelty/desertion of appellant wife are condoned by the respondent husband and as such he can not claim divorce on the same grounds again. Firstly, it must be noted that if we see the present petition, then it is crystal clear that respondent has claimed divorce not only on the basis of the conduct of the appellant wife prior to withdrawal of earlier divorce petition but even on the basis of subsequent conduct of the appellant. Here again it must be noted that when the consent terms mentioned above are not at all recorded by the Court and the appellant without any just cause has withdrawn from the said consent terms, in the eyes of law there are in :17: fact no consent terms in existence. So, by no stretch of imagination it can be said that respondent has actually given up the allegations made by him against appellant in earlier petition. The consent terms, under such circumstances shall have to be ignored. When such is the position, there is in fact no question of condonation. While considering this aspect we have to bare in mind the following observations made by the apex court in a case Dr.N.G.Dastane V/s Mrs. S.Dastane (1975) 2 SCC 326 (1975) 2 SCC 326 (1975) 2 SCC 326 to which our attention is drawn by Advocate Shri Rajiv Desai for the respondent. "condonation is always subject to the implied condition that the offending spouse will not commit a fresh matrimonial offence, either of the same variety as the one condoned or of any other variety. No matrimonial offence is erased by condonation. It is obscured but not obliterated. Since the condition of forgiveness is that no further matrimonial offence shall occur, it is not necessary that the fresh offence should be ejusdem generis with the original offence. Condoned cruelty can therefore be revived, say be desertion or adultery. "Condonation" under section 23(1)(b) therefore means conditional forgiveness, the implied condition being :18: that no further matrimonial offence shall be committed." 22. Thus, from the facts of the present case we have absolutely no hesitation to hold that by virtue of mere signing the consent terms or by withdrawing the earlier divorce petition the respondent had not at all condoned the alleged acts of cruelty/desertion of appellant. So, there is no substance in the argument advanced by the learned Advocate for the appellant wife in this behalf. 23. It is the case of respondent husband that appellant treated him with cruelty, as contemplated by Section 13(1)(ia) of Hindu Marriage Act, 1955 (Hereinafter referred to as the said Act). Cruelty may be express or implied, it may be by words or conduct, it may be intentional or unintentional. From the averments in the petition, it is very clear that there is no question of any physical cruelty. The conduct which causes and is intended to cause suffering to one’s