IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No 20 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : To be circulated to family courts. -------------------------------------------------------------- JAGDISH MANGTANI Versus GEETA JAGDISH MANGTANI -------------------------------------------------------------- Appearance: 1. Second Appeal No. 20 of 2000 MR CL SONI for Petitioner No. 1 MR LM CHHABLANI for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE K.M.MEHTA Date of decision: 22/01/2002 ORAL JUDGEMENT Jagdish Mangtani-appellant husband (original petitioner) has filed this Second Appeal under Section 100 of C.P.C. against the judgement and decree dated 15.12.1999 passed by the learned Joint District Judge, Kutch at Gandhidham in Regular Civil Appeal No. 189 of 1999. The learned judge by his impugned judgement and decree was pleased to allow the appeal filed by Smt. Geeta Jagdish Mangtani-wife (original respondent). The learned judge was pleased to quash and set aside the judgement and decree dated 18.6.1999 passed by the learned Civil Judge (S.D.), Gandhidham, in Hindu Marriage Petition No. 14 of 1998 filed by Shri Jagdish Mangtani-appellant husband. The learned Trial Judge has passed a decree of divorce between the appellant and the respondent wife by dissolving their marriage as provided under Section 13 of the Hindu Marriage Act. 2. The facts giving rise to this petition are as under. 2.1 Marriage of between Jagdish Mangtani-appellant husband and Geeta Jagdish Mangtani-respondent wife was solemnised on 2.11.1993 as per Hindu Customs at Ulhasnagar, Mumbai. At the time of marriage the husband was working in shop at meagre salary of Rs. 1400/- per month whereas the respondent wife was serving as primary teacher at Adipur, Gandhidham, drawing salary of Rs. 7000/- per month. 2.2 As per the facts as emerging from the record the appellant husband is residing with his parents and brothers in a joint family at Ulhasnagar, Mumbai. The respondent wife originally is staying at Adipur, Gandhidham (Kutch). They both jointly stayed for some time in Mumbai. However, after the marriage the respondent took leave and came to Ulhasnagar and at that time she proposed the petitioner to settle at Adipur as she was serving in a primary school as teacher at Gandhidham. The petitioner did not agree to it that led to some dispute and difference and also led to quarrel between the appellant and the respondent. 2.3 It was submitted that somewhere in February, 1993 the respondent wife conceived and ultimately on 2.6.1993 the wife went to her parents' house for the purpose of delivery and rest. However, after that the boy was born on 11.11.1993. The wife thereafter has not returned to matrimonial house and thereby the respondent wife has deserted the husband. 2.4 From the record it appears that the appellant-husband addressed a notice dated 30.9.1996 through his advocate to the respondent wife at Exh. 21 in which it was stated that after the marriage the respondent wife was interested in job as teacher in Nagarpalika school at Anjar and to settle at Adipur and therefore the respondent was pressurising the appellant-husband to resign his job and to settle in Adipur. As the appellant-husband was not agreeable for the same, quarrel started in this behalf. 2.5 The respondent wife replied to the said notice on 14.10.1996 at Exh. 22 and denied the contention of the petitioner husband. The respondent wife has stated that she is prepared to stay at matrimonial house at Mumbai. 2.6 The appellant-husband has issued another notice dated 21.10.1996 to the respondent wife which is at Exh. 23 and reiterated what has been stated in the notice dated 30.9.1996. It was stated that the respondent wife has left her matrimonial house without any reasonable cause. It was reiterated that the appellant husband has decided to settle at Ulhasnagar with his parents and he is not interested in resigning his present job and to reside at the in-law's house at Adipur as son-in-law. It appears that the respondent wife has also replied to the said notice vide her letter dated 4.12.1996 denying the contentions in the said notice. The respondent wife ha stated that she is always ready to leave the job of Anjar and she is ready and willing to settle and live with the petitioner-husband. 2.7 In view of the above, ultimately the appellant-husband has filed petition for divorce. Originally the appellant-husband filed petition being H.M.P. No. 754 of 1996 in the court of Civil Judge (S.D.), Kalyan on the ground of desertion as contemplated under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955. The said petition was filed on 31.12.1996. In the said application the respondent wife filed written statement on 14.9.1997 before the learned Civil Judge (S.D.), Kalyan. Ultimately, the same was transferred to the Court of Civil Judge (S.D.), at Gandhidham (Kachchh) and numbered as H.M.P. No. 14 of 1998. 2.8 After the transfer of the petition to the Court of Civil Judge (S.D.) at Gandhidham-Kachchh, the appellant husband was examined at Exh. 19. In the deposition also the husband stated that he is staying with his parents in a joint family and the wife was serving as a teacher at Gandhidham. The respondent wife did not agree to stay at Ulhasnagar, Mumbai and therefore it led to quarrel between the appellant husband and the respondent wife. The appellant husband made efforts to bring the respondent wife but she was not prepared to leave the job at Gandhidham and to come to her matrimonial home at Ulhasnagar. It was stated the appellant husband was drawing salary of Rs. 1400/- per month whereas the respondent wife was getting salary of Rs. 3000/- per month. 2.9 On behalf of the husband his brother was Jetho Mangtani was also examined at Exh. 27. However, his evidence is not material and therefore, I am not referring to the same. Before the Trial Court, respondent wife Ms. Geetaben was examined at Exh. 29. In her deposition she has stated that at the time of her marriage the appellant was getting salary of Rs. 1400/whereas she was getting salary of Rs. 7500/- and if she leaves the job of teacher at Gandhidham and goes to Ulhasnagar, Mumbai, it will not be possible for them to live in a joint family with the meagre salary of Rs. 1400/- of the husband. It was also stated if the husband earns approximately Rs. 5000/- then she is prepared to stay at Ulhasnagar in this behalf. Except maintenance there is no other dispute and difference in this behalf. It was admitted that from 2.6.1993 she has left matrimonial house and staying at Gandhidham. The respondent wife has examined one Shri Popatlal who is a neighbour. However, his evidence is not relevant and therefore I am not referring to the same. 2.10 Before the trial court the matter was heard and ultimately the trial court framed the following issues which have been answered. (i) Whether the petitioner proves that the respondent has committed an act of cruelty with the petitioner? (ii) Whether the petitioner proves that the respondent has wilfully abandoned the petitioner? (iii) Whether the petitioner is entitled a decree of divorce? (iv) What order? 2.10A The learned trial judge while giving his finding has stated that the petitioner-appellant husband proved that the respondent wife has committed the act of cruelty with the petitioner-husband. The petitioner-husband has also proved that the respondent wife has lawfully abandoned the petitioner-appellant husband. 2.11 In view of the above, the trial court has after considering the evidence on record, come to the conclusion that the petitioner-husband has been able to prove the ingredients of Section 13(1)(ia) and Section 13(1)(ib) of the Act and the petitioner husband is entitled to a decree of divorce in this behalf. 3. Being aggrieved and dissatisfied with the said judgement the respondent wife filed appeal being Regular Civil Appeal No. 189 of 1999 before the Joint District Judge, Kachchh on 13.7.1999. The Joint District Judge, Kachchh at Gandhidham by his judgement and decree dated 15.12.1999 has held that the trial court has erred in holding that the respondent wife has committed an act of cruelty towards the petitioner-husband by abandoning the petitioner-husband and the petitioner husband was entitled to obtain a decree of divorce. The learned appellate judge also held that the learned trial judge has not properly considered the fact that decree of divorce granted by the trial court is improper and illegal. The learned appellate judge has held that if a woman gets good designation or good job on the strength of her education and if a husband is not earning good income and is residing at another place after the marriage, wife cannot be compelled, according to orthodex Hindu mythology, to leave her good services or status and to stay at the husband's place. If a woman refuses to do so, she cannot be called upon to be ready for divorce. If it is so acted upon, it would be an insult to the woman's pride and it would amount to denial of a woman's right of equality. In view of the same, the learned appellate judge has held that it cannot be said that the wife has abandoned her husband or has committed an act of cruelty towards the husband by abandoning the husband and the husband was entitled to obtain the decree of divorce. 4. Being aggrieved and dissatisfied with the aforesaid order of the learned appellate judge, the appellant husband has filed this Second Appeal before this court. When the Second Appeal was admitted on 8.8.2000 the following substantial question of law was formulated by the then learned judge which read as follows: "Whether the respondent wife's insistence of not leaving job (service) to join her husband's matrimonial home amounts to desertion and whether the appellant husband is entitled for decree of divorce on this ground as provided under Section 13(1)(ib) of the Hindu Marriage Act, 1955? 4A This matter was heard on 24th and 26th December, 2001. Arguments were over. However, at that time both the learned counsel stated that before the court pronounces the judgement, they may try to settle the matter and if need arises both parties will come to this court and this court can enquire about the desire of husband and wife. Due to paucity of time both could not come to this court and ultimately on 15th January, 2002 both husband and wife came to Ahmedabad and I have called both the parties in my chamber jointly and thereafter I have heard them in my chamber independently. I have requested both the parties to join together and live together happily as husband and wife in the matrimonial home but unfortunately both parties were adamant and the matter could not be resolved and that is why I have to give the judgement. 5. On behalf of the appellant husband Mr. C.L. Soni, learned advocate appeared whereas on behalf of the respondent wife Mr. L.M. Chhablani appeared. The learned advocate for the appellant husband has relied on Section 13(1)(ia) and Section 13(1)(ib) of the Hindu Marriage Act, 1955 which read as under:- "13 Divorce - (1) Any marriage solemnized, whether before or after the commencement of this Act, may, 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)xxxxxxxxxx (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period not less than two years immediately preceding the presentation of the petition; or (ii) & (vii) xxxxxxxx Explanation - In this sub-section the expression `desertion' means the desertion of the 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 wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly." 6. The learned counsel for the appellant stated that when the respondent wife had agreed to marry the appellant she knew that the appellant husband was earning meagre income of Rs. 1100/- to Rs. 1400/- per month and at the time of marriage also she knew that she got married to a person earning very meagre salary. Now therefore when with full knowledge if the respondent wife had married the appellant husband, then subsequently living separately from the husband on the ground that the husband's income was not sufficient, was nothing but a deliberate desertion by the respondent wife. It was submitted that leaving of matrimonial home by the respondent wife is without any reasonable cause. Therefore, the appellant husband was entitled for a decree of divorce under Section 13(1)(ib) of the Act. 7. The learned counsel for the appellant husband has further submitted that in any case looking to the facts and circumstances of the case as well as the evidence on record it has been clearly established that the respondent wife in no circumstances wants to join her matrimonial house of the husband unless the income of the husband reached the stage of Rs. 5000/- per month. This contention of the respondent wife is nothing but a condition of wife to the effect that so long the income of the husband continues to be below Rs. 5000/- she is not inclined to join the matrimonial home of the husband. Thus, the respondent wife has deliberately deserted the appellant husband with no intention to go to the matrimonial home and in view of this position, the appellant husband was in all circumstances entitled for the decree of divorce. 8. The learned counsel for the appellant husband further submitted that it is clearly revealed that it is the respondent wife's insistence not to leave the job (service) she is doing at Anjar has rendered the main cause for her because she believed that she is earning much more amount than her husband and, therefore, she is justified in not joining the matrimonial home of her husband who is earning a meagre income. 9. It may be noted that originally the ground of cruelty was alleged in the petition but at the time of hearing of the Second Appeal was heard on the ground of desertion. Therefore, I am not considering the ground of cruelty in the present Second Appeal. 10. The learned advocate for the appellant husband relied on the judgement of the Hon'ble Supreme Court in the case of ADHYATMA BHATTAR ALWAR VS. ADHYTMA BHATTAR SRI DEVI reported in (2001) AIR SCW 4641 = AIR 2002 SC 88. 10.1 In Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi (supra) the facts were that the appellant Adhyatma Bhattar Alwar and the respondent Adhyatma Bhattar Sri Devi were married on 22nd August, 1978 in Nalamvari Choultry at Rajahmundry. The couple stayed together in village Palacole where the parents of the husband reside. A female child was born to them on 12th December, 1979 whereafter they separated. The wife and the daughter lived with her parents at Rajahmundry, while the husband continued to stay with his parents at Palacole. The husband filed a petition for dissolving the marriage under Section 13 of the Hindu Marriage Act, 1955 praying for a decree for divorce on the ground stated in sub-clause (ib) of sub-section (1). In the petition it was alleged that the father of the respondent wife had taken her to Rajahmundry for delivery and also stating that her mother was not well. After the birth of the child, since the respondent did not return to Palacole, the appellant, his father and other relations made attempts to persuade the respondent's father to send his daughter to Palacole. The attempt did not bear fruit as the respondent was insistent that the appellant should live separately from his parents in a separate house. Since the condition was not acceptable to the appellant, she refused to join him at Palacole. On 23rd May, 1981 the appellant went to Rajahmundry to bring the respondent but she was not sent and the appellant was informed that the respondent would be sent only after he got a job. As he appellant could not be able to get a job, the respondent wife did not join matrimonial home and all attempts to persuade the respondent to come and live with him failed. The appellant therefore filed the petition for divorce on the ground of desertion by the wife for a period of more than two years. 10.2 The respondent wife contested the said petition before the Trial Court. The Trial Court held that the appellant had satisfactorily proved that the respondent was guilty of having deserted him for a continuous period of more than two years preceding the filing of the petition for divorce and that he was entitled to a decree for judicial separation under Section 10 of the Act instead of decree for dissolution of marriage under Section 13(1)(ib) of the Act. 10.3 Being aggrieved and dissatisfied with the judgement of the Trial Court, both the appellant and the respondent filed appeal before the High Court of Andhra Pradesh. The High Court of Andhra Pradesh set aside the judgement and decree of the trial Court, allowed the appeal filed by the respondent wife and dismissed the appeal filed by the appellant husband. The High Court held that the wife did not have at any time the necessary animus to put an end to the matrimonial relationship and never intended to desert her husband. In view of the same, Special Leave Petition was filed before the Hon'ble Supreme Court. 10.4 In ADHYATMA BHATTAR ALWAR's case (supra) at para 6 on page No. 91 the Hon'ble Supreme Court has observed thus: "The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include `wilful neglect' of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes wilful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned; (1) absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period." 10.5 The Hon'ble Supreme Court has allowed the appeal and set aside the judgement of the High Court of Andhra Pradesh and the judgement of the Trial Court was restored. 11. Thereafter, the Hon'ble Supreme Court has, after considering its judgements in the case of BIPIN CHANDER JAISINGHBHAI SHAH VS. PRABHAWATI reported in AIR 1957 SC 176; LACHMAN UTAMCHAND KIRPALANI VS. MEENA reported in AIR 1964 SC 40, ROHINI KUMARI VS. NARENDRA SINGH reported in AIR 1972 SC 459, SANAT KUMAR AGARWAL VS. NANDINI AGARWAL reported in AIR 1990 SC 594, and also CHETAN DASS VS. KAMLA DEVI reported in AIR 2001 SC 1709, in para 12 on pages 94-95, observed as under: "Para 12 - Coming to the case at hand, it is revealed from the evidence on record, as discussed in the judgements of the Trial Court and the High Court that the respondent wife had gone to her parents' house for birth of the child, which apparently cannot be construed as an expression of her desire to forsake her husband permanently; but after the birth of her child when attempts were made by the husband appellant, his parents and relations, she had laid down a condition that the appellant should live in a separate house from his parents taking the plea that her father in law had attempted to molest her, which explanation she signally failed to establish. In the meantime, father of the appellant expired some time in 1988, putting an end to the so-called reason of misbehaviour of her father-in-law. There is nothing on record that thereafter she expressed her desire to join her husband at the matrimonial home. It is relevant to state here that the appellant is the only son of his parents and as expected, he was not willing to establish a separate residence leaving his parents to live alone in their old age. The cumulative effect of the circumstances and the conduct of the respondent is that she had given expression of animus deserendi. Thus, the two ingredients of the matrimonial offence of desertion i.e. separation in fact and animus deserendi have been established by the appellant. The learned trial Judge, having regard to the facts and circumstances of the case, was right in recording the finding that the husband had successfully established the case of desertion by the wife and exercising the discretion vested under Section 13A of the Act, the learned trial Judge had granted the decree of judicial separation instead of divorce. xxxxxxxxxx The failure on the part of the wife to substantiate a serious allegation of infamous conduct of indecent advances said to have been made to her by the father-in-law, taken together with the absence and omission from her side to demonstrate her readiness and willingness to discharge her continuing obligation to return to the matrimonial home, establish sufficiently the animus deserendi, necessary to prove legal desertion as required under section 13(1)(b). The conduct of the wife seems to be more indicative of a firm determination not to return to the marital home and discharge the obligations attendant thereto. Therefore, the judgement of the High Court is unsustainable and has to be set aside." 11.1 The learned counsel for the appellant has relied on another judgement of the Hon'ble Apex Court in the case of G.V.N. KAMESWARA RAO VS. G. JABILLI reported in 2002 AIR SCW 162. In that case G.V.N. Kameswara Rao-the appellant husband is a double doctorate holder one in Mathematics from Andhra University and another from U.S.A. and had been working in United States during the relevant period. The respondent, G. Jabilli, is a post-graduate in Home Science and was working as a lecturer in the year 1979. The marriage between two was solemnised on 30.7.1979. After the marriage, the appellant and respondent stayed together for some period and thereafter the appellant left India for United States. The respondent was asked to join him after having obtained the visa and completing other formalities. The respondent, after a period of six months, joined the appellant in United States. It appears that the marital life of the appellant and the respondent ran into rough weather from the very beginning of their stay in United States. A daughter, Sandhya, was born to them, on 10.6.1981. In 1982, the appellant, respondent and their daughter Sandhya came to India but the appellant returned to United States in November, 1982 and the respondent joined him only in April, 1983. In January, 1985, the respondent along with her daughter returned to India and it seems that