1 fca.89.00 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 89 OF 2000 Dr. Bhalchandra Shantaram More, Baudh, aged about 31 years, Indian Inhabitant, Occ. Medical Practitioner, Residing at Indrayani Nagar, More Niwas, Near Bhosari, Pune 411 026. ... APPELLANT VERSUS Dr. (Mrs.) Sangeeta Bhalchandra More, Baudh, D/o. Madhavrao Maruti Daware, Age about 30 years, Indian Inhabitant, Occ. Medical Practitioner, R/o. Own House, A/10, Kalpana Housing Society, Yerawada, Pune 411 006. ... RESPONDENT -------- Ms. Suhasini Mutalik for the Appellant. Mr. Mahesh Rawool i/b Mr. P.B. Shah for the Respondent. -------- CORAM : A.M. KHANWILKAR, J. A.A. SAYED, JJ. DATE : 12 th July, 2010. 2 fca.89.00 ORAL JUDGMENT : ( PER A.A.SAYED, J ) 1 The above Family Court Appeal is filed by the Appellant- husband challenging the judgment and order dated 31 st August, 2000 passed by the Family Court No.1, Pune, whereby the petition filed by the husband for decree of divorce on the grounds of cruelty and desertion came to be dismissed. The brief facts of the case are as under: 2 The Appellant-husband and the Respondent-wife were married on 25 th November, 1995 at Yerawada, Pune as per Baudh religion and custom. After marriage, they were residing in a flat taken on rental basis at Shantiben Society, Kothrud Road, Pune. Both the husband and the wife are doctors by profession. The husband is practicing Ayurvedic medicine and the wife is practicing Homeopathic medicine. It is the case of the husband that after marriage, his wife used to insult and humiliate him. Since his wife’s father’s financial position was 3 fca.89.00 very sound as compared to his, the members of his wife’s family used to insult and humiliate him and his wife never cared to oppose their behaviour and she in fact joined them in humiliating him. His wife used to go to her parents’ house after locking the matrimonial flat and she used to take the keys of the flat with her and that he was required to wait for her outside the house after returning from his clinic and he had to go to his in-laws house at Yerawada, Pune to inquire about his wife and he was being insulted by them. His in-laws used to compare their financial position to his and tell him that their daughter was used to facilities like refrigerator, TV, telephone and ask him as to whether he is going to provide all facilities to her. His wife was not cooking food at home and insisted that food be called from expensive hotels. She used to wake up late, much after he used to leave for his work. She was not attending to other domestic duties like washing, cleaning, arranging household articles, etc. and when he used to question her, his wife used to start quarreling with him. It is further alleged by the husband that on 27 th February, 1996, his wife had left the matrimonial home without his consent at a time when he was suffering from Gastroenterites. After 10 4 fca.89.00 days, when his wife came to his clinic, which was at Pirangut, he asked her as to why she left the house when he was unwell and that he would speak to her father about it, his wife got annoyed and threatened that she will make ‘tamasha’ in presence of patients in the clinic and she started crying loudly. His wife abused him in most filthy language saying “Bastard, Bhikarda”. On account of the conduct of his wife, he surrendered the flat at Kothrud to the owner on 31 st May, 1996 and as his wife was not cohabiting with him in the matrimonial home he arranged for a room near his clinic for residence. On many occasions, however, his wife used to come at late hours and stay with him at the said room. They had sexual relations and during that period his wife conceived a child and this was confirmed on 13 th July, 1996. When his wife came to know about her pregnancy, she started saying that her purpose is served and that she does not need him anymore. On the same day i.e. on 13 th July, 1996 at about 4:30 p.m. his wife came to the clinic and in the presence of patients, she started abusing him in most filthy language and made ‘tamasha’ before the patients and threatened that she will see how he can practice in the clinic. She also demanded her articles back from him. 5 fca.89.00 It is further alleged by the husband that though since 17 th February, 1996 his wife had left the matrimonial home, she used to visit the matrimonial home. However, after 13 th July, 1996, she stopped coming and failed to return to the matrimonial home and stayed with her parents permanently. According to the husband, during the period of seven and half months since marriage, his wife had stayed with him only for three months and ten days. 3 It is alleged by the husband that even during the period of pregnancy of his wife, he used to provide her medicine and other necessities of life and made all efforts to settle the matter amicably and insisted that his wife come and stay at matrimonial home, but she refused. On 9 th March, 1997, his wife gave birth to a female child and at that time he has paid a sum of Rs.5000/- to his wife towards delivery expenses and medication. 4 It is the further case of the husband that when he was to appear for his post-graduation exams, which were to be held on 18 th, 19 th 6 fca.89.00 and 20 th May, 1997, on first day of exam i.e. on 18 th May, 1997 when he came out of the exam hall at 5:30 p.m., his wife came at the exam hall and started quarreling with him and abusing him in most filthy language saying “bastard, tu gataratla kida ahes, ani amchya pudhe to shunya ahes” and she threatened that she will see how he would appear for his next paper and threatened him that he should return all her articles. This incident, caused him a lot of mental pressure and he could not write his exam paper on the next day. On 28 th September, 1997 he made a list of articles and presents given to his wife at the time of their marriage and packed the same in lorry and handed over all her articles at the house of her parents. 5 It is further alleged by the husband that when his wife used to attend his clinic earlier, when lady patients used to visit him at the clinic, she used to get suspicious about his character and also used to mis-guide them that they should take Homeopathic medicine and his wife used to thus cause obstruction in his profession and she used to abuse him in presence of patients and put obstacles to his medical 7 fca.89.00 practice. Thus, according to the husband, after 13 th July, 1996, his wife has not returned to the matrimonial home though he made several attempts to bring back his wife. According to the husband, he has suffered mentally at the hands of his wife and he was entitled to a decree of dissolution of marriage on the account of cruelty as well as desertion. 6 The wife had filed her written statement opposing the petition. According to the wife, her husband was ill-treating and harassing her. She and her husband resided together at Kothrud for about 7 to 8 months and since the husband was creating a commotion every day, the landlord asked them to vacate the premises and thereafter, they shifted to Pirangut. As there was no proper accommodation there, their luggage was kept at Pirangut and they resided at Bhosri alongwith the parents of the husband upto September, 1997. Thereafter, the husband took her to her parents’ house saying that he would make provision for a separate residence and accordingly she started staying with her parents and her husband was frequently visiting her at her parents’ house. However, her husband did not make any provision for 8 fca.89.00 separate residence. It is further alleged by the wife that her husband was insisting that she should sell the plot at Pimple-Nilakh, which was purchased by her father in her name, as also her golden ornaments for repayment of his loan amount. Her husband was asking her to bring an amount of Rs.15,000/- from her father for purchase of a plot at Pirangut and used to send her to her parents’ house and also assaulted her on account of money. According to the wife, she used to prepare meals and alongwith tiffin and she and her husband used to go to Pirangut clinic. When she asked her husband about his parents he got annoyed and poured kerosene on her and stated that he would set her on fire. While she was pregnant, she was assaulted by her husband and when she threatened him to go to the police, he restrained her and asked her to go to her parents’ house. In September 1997, he took her to her parents’ house and even thereafter, he used to come to her parents’ house. It is further alleged by the wife that her husband sold gold ornaments and two earrings belonging to her and used the said amount of Rs.35,000/- for repaying his loan amount. It was her husband, who was responsible for all these situations which were created by him. According to the wife, it 9 fca.89.00 was her husband who has deserted her and she is ready and willing to reside with her husband. She therefore, prayed for dismissal of the petition. 7 At the trial, the husband examined himself and his father Shamsunder Sayaji More (PW-2) and one of his patients Mr. Dattatraya Shankar Lonkar (PW-3). The wife examined herself and one Dr. Sanjay Joshi (DW-2), who is a medical practitioner. On the basis of the pleadings and the evidence, the trial Court by the impugned judgment and order dismissed the petition of the husband, hence this Appeal. 8 We have heard the learned counsel for the parties and perused the material on record. At the outset, we have noticed that the learned Judge in the impugned order has, amongst other issues, framed two separate and distinct issues in respect of ‘cruelty’ and ‘desertion’. However, on perusal of the impugned judgment, we find that the said two issues have not been dealt with separately and the learned trial Judge has muddled up the discussion of the said issues in the judgment. Thus, 10 fca.89.00 no specific and separate analysis are found in the judgment in respect of each of the said issues. Ordinarily, on this ground alone, we would have relegated the parties to the trial Court for consideration afresh. However, considering the fact that the petition is of the year 1998, we have undertaken this exercise ourselves. 9 Insofar as the issue of ‘desertion’ is concerned, we find ourselves in agreement with the conclusion arrived at by the trial Court in negating the prayer of dissolution of marriage on the ground of desertion. We have noticed that the petition itself was amended on 11 th November, 1999 by adding paragraph Nos. 15-A and 15-B, which read as under: “15-A] The Petitioner submits that the Respondent has deserted him, without any reasonable cause and without his consent and wish since July 1996 i.e. for a continuous period of not less than two years immediately preceding the presentation of this petition on 25 th September 1998 and hence, the Petitioner is entitled for dissolution of marriage also u/s 13[1] [1-a] of the Hindu Marriage Act. 15-B] The cause of action for the ground of cruelty arose soon after the marriage and for ground of desertion it arose since July, 1996 and is continuing 11 fca.89.00 thereon.” 10 Perusal of the above paragraph Nos. 15-A and 15-B, indicates that it is the husband’s case that his wife had deserted him since July, 1996 for a continuous period of not less than two years immediately preceding the presentation of the petition on 26 th September, 1998. However, it is admitted by the husband that even after 13 th July, 1996, since his wife was pregnant, he used to visit her and provide her with medicine and other necessities of life. It is also undisputed that it was the husband who had admitted the wife to the hospital when his wife gave birth to their female child on 09 th March, 1997 and that he had paid a sum of Rs.5,000/- to his wife towards delivery expenses and medication. Thus, on the husband’s own showing he was visiting his wife and carried out some of his duties as a husband, though his wife was residing separately. At this juncture, it would be beneficial to extract Section 13 of the Hindu Marriage Act, 1955 which deals with dissolution of marriage inter-alia on the ground of desertion. Section 13 of the Hindu Marriage Act, 1955 reads as under: 12 fca.89.00 “13 Divorce. - (1) Any marriage solemnized, whether before or after the commencement of this Act, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party - ......... (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or .........” The ‘Explanation’ to this Section which deals with the expression “desertion” reads as under: Explanation, - In this sub-section, the expression “desertion” means the desertion of petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.” 11 In the case of Lachman Utamchand Kirpalani Vs. Meena reported in AIR 1964 SC 40, the Constitution Bench of the Apex Court (majority view) while dealing with the issue of desertion, observed in paragraph No.18 as follows: 13 fca.89.00 “18. The question as to what precisely constitutes “desertion” came up for consideration before this Court in an appeal for Bombay where the Court had to consider the provisions of S. 3(1) of the Bombay Hindu Divorce Act, 1947 whose language is in pari materia with that of S. 10 (1) of the Act. In the judgment of this Court in Bipin Chandra V. Prabhavati, 1956 SCR 838; ((S) AIR 1957 SC 176) there is an elaborate consideration of the several English decisions in which the question of the ingredients of desertion were considered and the following summary of the law in Halsbury’s Law of England (3 rd Edn.) Vol. 12 was cited with approval : “In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.” The position was thus further explained by this Court. “If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently the cease cohabitation, it will not amount to desertion. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation, and (2) the intention of bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention 14 fca.89.00 aforesaid . . . . . . Desertion is a matter of inference to be drawn from the fact the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time.” Two more matters which have a bearing on the points in dispute in this appeal might also be mentioned. The first relates to the burden of proof in these cases, and this is a point to which we have already made a passing reference. It is settled Law that the burden of proving desertion – the “factum” as well as the “animus deserendi” – is on the petitioner; and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband has still to satisfy the Court that the desertion was without just cause.....” 15 fca.89.00 12 In the case of Savitri Pandey Vs. Prem Chandra Pandey reported in AIR 2002 SC 591 , the Hon’ble the Apex Court observed that desertion is not the withdrawal from a place but from a state of things. 13 In the case of Parbhat s/o Shekuba Pawar Vs. Swati @ Push w/o Parbhat Pawar reported in 2007 (6) Mh. L.J. 277, the Division Bench of this Court (N.V.Dabholkar and M.G.Gaikwad, JJ), held that mere separate residence by wife by itself may not amount to desertion. In paragraph Nos. 10 and 11 of the said judgment the Division Bench observed as follows: “10. In view of the provisions of sub-section (i-b) read with its explanation, one who claims a decree for dissolution of marriage on the ground of desertion, it is for him to prove that the desertion alleged is for a continuous period of not less than 2 years and same is without any reasonable cause and without the consent or against the wish of such a party. The willful neglect of the petitioner by other party is also included in the Explanation of the section for the expression ‘desertion’. So it has to be seen as to whether in the present case, the husband who claims a decree for dissolution of marriage has established the desertion as required. 11. The appellant husband needs to prove the 16 fca.89.00 animus deserendi and mere separate residence by itself may not amount a desertion. It has also to be proved by appellant-husband that desertion is without any reasonable cause and without his consent and against his wish. In case the wife proves that there was any reasonable cause or justifiable reason to leave the company of the husband, then it cannot be said that she has deserted the husband. With the background of this legal position, the pleadings and evidence of the parties need to be considered to find out as to whether the appellant-husband proved the alleged desertion on which he claimed a decree for divorce.” 14 Thus, from the principles of law as laid down in the above rulings, what is required to be examined in the present case is whether there was animus deserendi on part of the wife and that the wife had deserted the husband for a continuous period of two years immediately preceding the presentation of the petition and whether the husband has discharged his burden of proving such desertion. 15 It is noticed from the depositions of the husband as well as the wife that both of them resided at Kothrud which was their matrimonial home and that the said matrimonial home was surrendered to the owner 17 fca.89.00 on 31 st May, 1996 and the husband had thereafter, taken a room at Pirangut near his clinic. The wife in her testimony has stated that there was no proper accommodation at Pirangut and therefore, their luggage was kept at Pirangut and they resided at Bhosari alongwith the parents of her husband upto September, 1997 and thereafter, her husband took her to her parents house saying that he would make separate provision of residence and accordingly she started staying with her parents and her husband was frequently visiting her at her parents’ house. However, he did not make any provision of separate residence. She has deposed that she is ready and willing to reside with her husband. On the other hand, the husband has stated in his evidence that after surrendering the flat at Kothrud to the owner on 31 st May, 1996, as his wife was not cohabiting with him in the matrimonial home, he arranged for a room near his clinic for residence. According to the husband, his wife used to come at late hours and stay with him at the said room and they had sexual relations during this period and his wife conceived a child, which was confirmed on 13 th July, 1996. There is, therefore, some controversy as to what was the matrimonial home of the parties after 31 st May, 1996, when the flat at 18 fca.89.00 Kothrud was surrendered. Considering the aforesaid facts, it appears to us more probable that after the surrender of the flat at Kothrud on 31 st May, 1996, there was no proper permanent matrimonial home of the parties and some temporary arrangements for stay were made. 16 Be that as it may, assuming that the wife had left the matrimonial home on 13 th July, 1996 as stated by the husband, it is admitted by the husband that even after the said date he used to visit her and during her pregnancy provided her medicines and other necessities of life and the husband himself had taken his wife to the hospital when the wife gave birth to a female child on 09 th March, 1997 and he also gave her a sum of Rs.5,000/- towards delivery expenses and medication. It is therefore not possible for us to accept the case of the husband that his wife had left the matrimonial home against his wish for a continuous period of two years immediately preceding to the presentation of the petition on 25 th September 1998. It is not unknown in our country that the wife goes to her parents’ house after marriage for her first delivery. In the facts of the present case, we are unable to accept the contention of the 19 fca.89.00 husband that his wife had infact abandoned him, and the intention of the wife was to leave the matrimonial home for good. It does appear to us that the ground of desertion was only an afterthought on part of the husband inasmuch as this ground was added in the petition only at a later stage by way of an amendment on 11 th November, 1999, whereas the petition was presented on 25 th September, 1998. 17 Thus, in the fact situation of the present case, in our view there was no animus deserendi on part of the wife. Merely because she was residing separately from the husband would not amount to desertion by her. The husband