… 1 … IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 85 OF 2006 Jayanti Shantaram Gaonkar wife of Shantaram Raghu Gaonkar daughter of Sonu Gaonkar residing at house no.8, Satarkarwada-Curpem, Sanguem,Goa .. Appellant. Versus 1. Shri Shantaram Raghu Gaonkar Major, Indian National, Residing at house No.17, Satkarwada-Curpem, Sanguem, Goa. .. Respondent Mr. S. S. Kakodkar, Advocate for the appellant. Mr. N. Sardessai with Mr. D. Shirodkar, Advocates for the respondent. CORAM :- U. D. SALVI,J. RESERVED ON : 10 th August, 2010. PRONOUNCED ON : 18 th August, 2010. JUDGMENT : The appellant - the original defendant in Matrimonial Civil Suit No.14/2003/A is assailing the judgment and decree of divorce dated 8th June, 2006 granted by the learned District Judge, South Goa in the Regular Civil Appeal No.98/2005 preferred against the judgment and decree dt. 28th July, 2005 dismissing the said suit for divorce under … 2 … Article 4(5) of Law of Divorce – Portuguese Civil Code instituted by the respondent herein. 2. The parties hereto at the end of their love affair lasting over a decade entered into matrimonial alliance despite opposition of the plaintiff's family members on 7th September, 1994 as per the Portuguese Civil Code before the Civil Registrar of Sanguem. According to the respondent/ plaintiff, the appellant, regardless of the fact of setting up a separate matrimonial home in the rental premises in order to avoid any inconvenience to her in his parental house and his efforts to bring her back on several occasions from her parents' residence, completely abandoned the conjugal domicile and deserted him without any prior intimation at the end of July 1995; and further failed to favourably respond to his verbal request and legal notice dated 15th August, 1997 to join him. 3. The record reveals that the respondent instituted a civil suit for divorce being Special Civil Suit No.59/1997 on the ground of adultery, ill-treatment and complete abandonment of the conjugal domicile against the appellant in the Court of Civil Judge, S.D., Sanguem. It appears from … 3 … the record, particularly a copy of the judgment in the said suit passed by the learned Civil Judge, S. D., Quepem, that the respondent/ plaintiff did not lead any evidence regarding the alleged adultery and ill-treatment, and limited his evidence to the ground of abandonment of conjugal domicile, and his word having gone unchallenged before the Trial Court fructified in the decree of divorce. However, this decision of the Trial Court found challenge in Regular Civil Appeal No.140/1992 preferred by the appellant in the Court of Additional District Judge, South Goa at Margao, and ultimately, the appeal came to be allowed with quashing of the judgment and decree of the trial Court, particularly for the reason that matrimonial suit instituted by the respondent/ plaintiff was premature. Following thereto, it appears, a fresh suit being Matrimonial Civil Suit no.14/2003 under Article 4(5) of Law of Divorce contained in Portuguese Civil Code was instituted in the Court of Civil Judge, S.D. at Quepem against the appellant herein on 22nd September, 2003. 4. The appellant joined the issues in the said suit with the written statement dated 18th December, 2003. The defendants specifically contended, besides denying the … 4 … plaintiff's case and explaining her conduct of abandoning, the previous suit – Special Civil Suit No.59/1997 midway in course of hearing, that she was harassed, tortured and made to suffer mental cruelty with slur on her chastity and was thrown out of the house. She accused the respondent/ plaintiff of making strong allegations of unchastity vide reply to her maintenance application vide – Maintenance Case No.1/M/1998/A before the JMFC, Quepem and of refusing her the entry to the matrimonial house. 5. The learned Civil Judge, S.D., Quepem framed the following issues : (i) Whether the plaintiff proves that within 4 months after his marriage with the defendant, the defendant left her marital house without informing and taking his permission started residing with her parents ? (ii) Whether the plaintiff proves that on several occasions he made verbal requests to the defendant to join his conjugal domicile and stay with him ? (iii) Whether the plaintiff proves that he had filed a Civil Suit for Divorce being Special Civil Suit No.59/1997 against the defendant, on several grounds besides ground of desertion, but evidence in the said suit was led only in respect … 5 … of desertion ? (iv) Whether the defendant proves that the suit is bad and not maintainable for the reasons given at para 1 of the written statement ? (v) Whether the defendant proves that after 6 months of marriage, the plaintiff and his family members started harassing her doubting her chastity and was driven out of the marital house by him and his family members ? (vi) What relief ? What order ? After hearing the parties and upon considering the evidence lead before him, the Ld. Civil Judge declined to grant divorce mainly for the reason that wild allegations doubting the chastity of the defendant (appellant herein) had compelled her to leave the conjugal domicile and, therefore, it could not be said that she had abandoned her conjugal domicile. In course of arriving at this decision, the learned Civil Judge,S.D., Quepem answered the aforesaid issues as under : Issue No.(i) - Not proved. Issue No.(ii) - Not proved. Issue No.(iii) - Proved. Issue No.(iv) - Not proved. Issue No.(v) - Proved. Issue No.(vi) - As per order. … 6 … 6. The learned District Judge, South Goa, Margao observed that as against the clear testimony of the respondent husband that within four months of the marriage, the defendant left staying with him without informing him and finally abandoned the conjugal domicile about the end of July 1995 without valid reason, the defendant's testimony lacks details about the circumstances under which she was driven out by the plaintiff and, therefore, it is difficult to believe her testimony. Further he observed that there is no satisfactory evidence on record to show that the plaintiff or his family members had driven the defendant out of the matrimonial house, and as such was satisfied, that the plaintiff succeeded in proving that the defendant had left matrimonial home within four months of the marriage. He further held that as they were not staying together from July 1995, the plaintiff became entitled to the decree of divorce on the ground of abandonment of conjugal domicile for a period of more than 3 years in terms of Article 4(5) of Law of Divorce. 7. Learned Advocate Mr. S. S. Kakodkar for the appellant assailed the judgment of the First Appellate Court … 7 … with a submission that the First Appellate Court despite being cast with the duty to reappreciate the facts and law, and thereupon to reflect its conscious application of mind and record findings supported by reasons, on all the issues arising alongwith contentions put forth, and pressed by the parties for its decision, did not consider the material issue no. 5 regarding harassment of the appellant/defendant by doubting her chastity, and failed to give objective reasons for coming to the conclusions contrary to those expressed by the learned trial Court. According to him, the learned First Appellate Court gave no reasons for disbelieving the appellant/defendant as regards her testimony that she was harassed by the plaintiff with doubts expressed about her chastity. 8. Mere leaving the matrimonial home, he submitted, constitutes no desertion or complete abandonment of conjugal domicile unless it is shown by concrete evidence that there was intention to desert or completely abandon the conjugal domicile. To complement his submissions in this regard, he placed reliance on judgment reported in AIR 2006 Bombay 145 Datta Rajaram Bhosle Versus Kavita Datta Bhosle. … 8 … 9. Thus, he argued, it was incumbent upon the First Appellate Court to have given reasoned findings in relation to the aforesaid issue no.5, which findings could have answered whether there was 'animus descerendi' i.e intention to desert or completely abandon the conjugal domicile in the mind of the appellant/defendant. In this context, he invited the attention of this Court to the Judgments reported in AIR 2001 SC 2171 - Madhukar and others Vs. Sangram and others, 2002(3) ALL MR 924 (SC) Jagbir Sharma Vs. Babli , (2001) 3 SCC 179 Santosh Hazari Vs. Purshottam Tiwari (Deceased) by LRs. 10. While commenting on the judgment delivered by the High Court of Karnataka in the case of Madhukar and others (supra), the Hon'ble Apex Court made observation: “First appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts, and the judgment in the first appeal must address itself to all the issues of law and facts and decide it by giving reasons in support of the findings.” The Hon'ble Apex Court being not satisfied with … 9 … the judgment delivered by the Karnataka High Court in the said case for the reasons of it falling short of considerations, which are expected from the Court of first appeal, was pleased to remand the first appeal to the High Court for its fresh disposal in accordance with law. 11. The Hon'ble Apex Court took into account its own observations in the judgment delivered in Santosh Hazari's case (Supra) for remanding the appeal in Madhukar and others case. The relevant observations are quoted herein for ready reference:- “The Appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first Appeal is valuable right of the parties and unless restricted by law, the whole case therein is open for hearing both on question of facts and law. The Judgment of the Appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising alongwith the contentions put forth, and pressed by the parties for decision of the Appellate Court....” While reversing a finding of fact the Appellate Court must come into close quarters with the reasoning assigned by the Trial Court and then assign its own reasons for arriving at a different findings. “This … 10 … would satisfy the Court hearing a further appeal that the First Appellate Court had discharged the duty expected of it.” 12. In Jagbir Sharma's case( supra), the Hon'ble Apex Court on being confronted with the issue of the High Court deciding the first appeal in a matrimonial case without discussing reasons given by the Trial Court in its judgment was prompted to set aside the judgment of the High Court and remand the first appeal to the High Court for fresh disposal of the appeal in accordance with law. 13. The aforesaid judgments do point out the duties of the first Appellate Court to objectively consider all the issues arising alognwith the contentions put forth and pressed by the parties and to assign its own reasons, after coming into close quarters with the reasoning assigned by the trial Court, for arriving at a finding different than the one given by the Trial Court. According to learned Advocate Kakodkar for the appellant, the First Appellate Court miserably failed in discharging this duty cast upon it by law, and, therefore, in his opinion, the case deserves to be remanded to the Court of District Judge, South Goa, at Margao for fresh disposal of Regular Civil Appeal no. 98/2005 … 11 … in accordance with law. 14. Learned Advocate Shri N. Sardessai for the respondent submitted that for the purpose of the second appeal there ought to be questions of law which substantially affect the right of the parties and such questions should arise before the Courts below. In his view, no such substantial question of law has arisen in the present appeal. In this context, learned Advocate Kakodkar for the appellant pointed out the substantial questions of law framed while admitting this appeal on 10.10.2006, and submitted that non- consideration of issue no. 5, which deals with the compelling circumstances for staying away from the conjugal domicile, by the First Appellate Court, has substantially affected the right of the parties to have a just decision in the present case and, therefore, it raises substantial questions of law as framed. 15. Order dated 10.10.2006 of this Court reveals the following questions of law: (a) Whether staying away from the conjugal domicile due to compelling circumstances amounts to complete abandonment of conjugal domicile in terms of Article 4(5) of Law of … 12 … Divorce of the Civil Code ? (b) Whether the First Appellate Court erred in law in not dealing with this specific issues and restricting itself to single point thereby affecting the decision of the case on merits ? 16. Obviously, the questions arising in the present appeal deal with vital issue as pointed out by learned Advocate Kakodkar for the appellant as answering of such issue is bound to lead to just decision in the present case. It can also be seen from the record that such issue did arise before the Court below. 17. In this context, Learned Advocate Nitin Sardessai for the respondent cited judgment delivered in A.P. SRTC. National Mazdoor Union Vs. A.P.SRTC and another [(2001) 9 SCC 413], and submitted that if any such issue was raised and was not considered by the First Appellate Court, the Appellant could have resorted to remedy of review petition, and brought the said issue to the notice of the First Appellate Court and ended the matter then and there. Having not done so, he argued that it is too late in a day to agitate the same issue before this Court. The Hon'ble Apex Court while considering the merits of plea raised for interference in the civil appeal on grant of a special leave under section 136 of … 13 … Constitution of India, had made parting remarks in the A.P. SRTC. National Mazdoor Union's case in the following words : “Even apart from that, if it was mentioned in the civil appeal that this point was urged and not considered, the appellant would have been relegated to the remedy of review proceedings. That occasion has not arisen for the appellant in the peculiar facts of the case as mentioned above.” Such remarks are often made by the Courts in the given set of facts and circumstances. It must, however, be remembered that the law provides for second appeal, and if the substantial questions of law arise in such appeal, the appellant is not precluded from seeking answer to such substantial questions of law in the second appeal merely on the ground that there was remedy of review for re-agitating the issue not considered by the Court below. 18. Learned Advocate Mr. Nitin Sardessai for the respondents further submitted that the First Appellate Court did consider the issue no. 5 by framing and answering a consolidated question involving the topics covered by issue … 14 … nos.1 and 5. He further pointed out that the Trial Court answered the issue nos. 1 and 5 together. This approach, he argued, justified answering a consolidated question as framed in the opening sentence of paragraph 5 of the judgment delivered by learned District Judge. He further submitted that the trial Court was moved by scandalous allegations of unchastity made by the respondent/plaintiff in the reply given by him in the month of August, 1998 to the maintenance application case no.1/M/1998/A moved by the appellant in the Court of JMFC, Quepem. However he submitted, the ld. Trial Court adverted to the evidence which had failed to disclose the concrete instances of making of such scandalous allegations/accusation by the respondent/plaintiff in course of his co-habitation with the appellant at the matrimonial home. According to him, the learned First Appellate Court has rightly disbelieved the appellant and no room was left by his decision for remanding the appeal for a fresh decision as solicited by the appellant. 19. This submission calls for survey of the judgments passed by the Courts below without indulging in detail discussion of the evidence. Learned trial Court rightly dealt with issue nos. 1 and 5 together as they are co-related. … 15 … Besides considering the admission emerging in the evidence of appellant/defendant that from end of July, 1995 till the date of giving evidence she did not stay in the conjugal domicile, the learned trial Court also considered the facts emerging from the testimonies of the respondent/plaintiff, his father PW2 Raghu Gaonkar, the appellant/ defendant and documents adduced in evidence namely (i) that the marriage in question was a result of love affair lasting over a decade and the plaintiff was visiting the house of the defendant regularly and used to stay in her house, and the relations between the two were cordial. (ii) that the defendant was local inhabitant of village Quepem. (iii) that the father of the plaintiff did not like the defendant to be his daughter in law as, according to him, she was girl of lose character and the plaintiff had made allegations doubting the chastity of the defendant vide reply to the maintenance application moved by the defendant, (iv) that the plaintiff made accusation against the defendant as a girl of lose character. Learned trial Court after taking into consideration the aforesaid facts observed that no sensible married house wife would reside with her husband either in the rental premises acquired by her husband or in … 16 … his parental home in face of wild allegations doubting her chastity and the circumstances had compelled her to leave the conjugal domicile. 20. In the words of the Hon'ble Apex Court, the Appellate Court ought to have come into close quarters with the reasons assigned by the trial Court and then assigned its own reasons for arriving at a different finding. A perusal of the para 5 of the impugned judgment delivered by the learned Dist.Judge, Margao reveals that the only point considered by the learned Dist.Judge was whether the defendant abandoned the plaintiff within four months from the marriage. No where at para 5 there is any reasoning assigned by the first appellate Court for arriving at the conclusion contrary to the one arrived at by the trial Court, particularly with reference to the circumstances that making of wild allegations doubting the chastity, had compelled the defendant to leave the conjugal domicile. What is revealed by the reply of the plaintiff to the defendant's maintenance application has not been dealt with by the first Appellate Court in the impugned judgment. Merely making reference to the facts disclosed through the testimony of the parties or any one of them and then rushing to the conclusion is not sufficient unless the … 17 … rational analysis of the evidence, both oral and documentary, becomes manifest in the judgment of the Court reappreciating the facts. It is seen that the impugned judgment lacks such rational analysis. In such circumstances it is difficult to accept the submissions that the learned first Appellate Court framed a consolidated question and answered issue nos.1 and 5 in just manner. 21. The substantial questions of law framed are inter related. Needless to say that staying away from the conjugal domicile due to compelling circumstances does not amount to complete abandonment of conjugal domicile in terms of Article 4(5) of Law of Divorce of the Code- as no “animus descerendi” is evident from the fact of staying away from the conjugal domicile due to compelling circumstances. In view of aforesaid discussion the second substantial question of law needs to be answered affirmatively. 22. Learned Advocate Mr. N. Sardessai for the respondent submitted that the learned trial Court was justified in granting divorce on the ground of irretrievable break down of marriage in light of the judgment of the Apex … 18 … Court reported in (2006) 4 SCC 558 Naveen Kohli Vs. Neelu Kohli. He further submitted that the judgment of the Hon'ble Apex Court in Naveen Kohli Vs. Neelu Kohli ( supra) has become law of the land in terms of Article 141 of the Constitution of India and overrules the contrary view taken by the smaller Benches and remains binding on any subsequent Benches of co-equal strength. To compliment this submission, he placed reliance on the judgments reported in (2005) 2 SCC 673 Central Board of Dawoodi Bohra Community vs. State of Maharshtra, (1976) 4 SCC 52 State of U.P. Vs. Ram Chandra Trivedi, ( 2000) 1 SCC 644 Sub Inspector Rooplal Vs. Lt. Governor through Chief Secretary, Delhi and others. 23. Undoubtedly, the law laid down by the Hon'ble Supreme Court becomes Law of the Land and the Courts below have to bow before it. The judgment of the Hon'ble Apex Court in the case of Central Board of Dawoodi Bohra Community(supra), further points out that the Division Bench of the Hon'ble Apex Court in Vishnu Dutt Sharma's case reported in AIR 2009 SC 2254 could not have disagreed or dissented from the view taken by the larger Bench in Naveen Kohli's case. It appears from the reading of the Vishnu Dutt … 19 … Sharma's case that the judgment in Naveen Kohli's case was not brought to the notice of the Division Bench of the Apex Court dealing with the said case then. From the reading of the judgment in Ramchandra Trivedi case (supra) one can easily gather that the view expressed by larger Bench has to prevail and must be followed in preference to those of smaller benches. 24. This jurisprudential discipline of paying obeisance to the verdict of superior Court and also requiring a Bench to remain bound by the precedent of co-ordinate bench is found expressed in Sub-Inspector Rooplal's case (supra). In line with this thinking, this Court is also expected to honour the legal thought formulated in Naveen Kohli's case (supra). 25. To assist this Court to understand the impact of legal thought or doctrine of irretrievable breakdown of marriage formulated in Naveen Kohli's case, learned Advocate S. S. Kakodkar for the appellant placed before this Court judgments of the Hon'ble Apex Court as well as of this Court. In Anilkumar Jain's case (2009 (06) All M R 515 SC- Anilkumar Jain Vs. Maya Jain) as well as Satish Sitole's case (2008(5) All M R 963 SC- Satish Sitole Vs. Smt Ganga) cited … 20 … in this context, the Hon'ble Apex Court made it amply clear that the doctrine of irretrievable breakdown of marriage was invoked to remedy an impasse reached in a matrimonial relationship by the Supreme Court under Article 142 of the Constitution. The Hon'ble Apex Court explained the impact of this doctrine in the following words : “This doctrine of irretrievable breakdown of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the Civil Courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on the grounds not provided for in sections 13 and 13-B of Hindu Marriage Act, 1955.” 26. Naveen Kohli's case was considered by the Division Bench of this Court while delivering the judgment in Bajrang Gangadhar Revdekar's case (2009(5)All M R 619 Bombay- Bajrang Gangadhar Revdekar Vs. Pooja Gangadhar Revdekar). The Bench observed : “The institution of marriage occupies an important place and plays an important role in the society in … 21 … general and, therefore, it would not be appropriate to apply the doctrine of irretrievable breakdown of marriage as a straight jacket formula for dissolving the marriage. This aspect has to be considered in the background of other facts and circumstances of the case. The sanctity of marriage cannot be left at the whims of one of the annoying spouses. Irretrievable breakdown of marriage is not a ground by itself to dissolve the marriage. It is only in extreme circumstances that the Court may use this