1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.20 OF 2002 Mr. Sheikh Camruddin alias Xeque Camrudin, of major age, service, residing at Nanus, Valpoi. .... Appellant V e r s u s Mrs. Zarinabi Sheikh Camruddin alias Zarina Begaun, C/o Sheik Husein, of major age, service, residing at Bhatulem, Panjim, Goa. ..... Respondent. Mr. S.D. Lotlikar, Senior Advocate with Advocate P. Lotlikar for the Appellant. Mr. D.P. Bhise, Advocate for the Respondent. CORAM: A. P. LAVANDE, J. DATE: 31ST AUGUST,2010. ORAL JUDGMENT: By this appeal the Appellant challenges the Judgment and Decree dated 7th September, 2001 passed by the learned District Judge, North Goa, Panaji, in Regular Civil Appeal No. 90/1999 dismissing the appeal filed against the judgment and decree dated 17th July, 1999 passed by the learned Civil Judge, Senior Division, Bicholim in Special Civil Suit No.17/1990, whereby the suit for divorce filed by the appellant (hereinafter referred to as plaintiff) was dismissed. 2 2. The parties herein shall be hereinafter referred to as per their status before the trial Court. 3. Briefly, the facts leading to filing of the present second appeal are as under: The Plaintiff and the Defendant got married on 17.5.1982. Out of the wedlock, a boy named Sheikh Naushad was born on 4.4.1984. After the marriage the Plaintiff and the defendant started residing at Nanus-Valpoi. According to the Plaintiff on 20.10.1983, the Defendant left the matrimonial house without any reason and inspite of the efforts on the part of the Plaintiff to bring the Defendant back to the conjugal house, the Defendant did not return. 4. The Plaintiff filed the above suit seeking divorce on the ground of complete abandonment of the conjugal domicile for a period of three years. The Defendant field the written statement in which she stated that the Plaintiff during the period the Defendant was at the conjugal house, ill-treated and assaulted her and he was having illicit relationship with one Shobana Kudalkar. On the basis of the pleadings, the following issues were framed: i) Whether the plaintiff proves that the defendant left the 3 matrimonial house voluntarily for good on 20.10.1983 without any reason? ii) Whether the defendant proves that this court has no jurisdiction to try and entertain the present suit? iii) Whether the defendant proves that the plaintiff was ill treating and assaulting her? And that he is having illicit relation with one Shobana Kudalkar? 1v) What relief? What order? 5. In support of his case the Plaintiff examined himself and two witnesses. The Defendant examined herself and also two witnesses. The learned trial Judge upon appreciation of the evidence held that the Plaintiff did not prove that the Defendant had left the matrimonial house on 20/10/1983 without any reason. The learned trial Judge held that the Defendant had made attempts to return to the matrimonial house in May 1985 and since at the relevant time she was doing her B.Ed., she with the consent of the Plaintiff was staying at Panaji to pursue her B.Ed. course. The learned trial judge also held that the Plaintiff did not make any attempt to bring the defendant to the conjugal house, as claimed by him. The trial Judge also held that out of the illicit relationship 4 between the Plaintiff and Shobana Kudalkar, two children namely, Sheikh Atiya Wishaat and Sadiya Tarquem Shaikh were born. The learned trial Court therefore held that the Plaintiff had illicit relationship with the said Shobana Kudalkar. 6. Aggrieved by the Judgment, the Plaintiff preferred Regular Civil Appeal No.90/1999. During the pednency of the appeal the Plaintiff sought amendment of the plaint and urged additional ground of de-facto separation for a continuous period of 10 years, in terms of Clause (8) of Article 4. The Defendant led evidence. The Plaintiff did not lead any evidence. The Appellate Court dismissed the appeal holding that the plaintiff did not prove abandonment of the conjugal domicile by the defendant for a period of not less than three years. The learned District Judge further held that the Plaintiff had also not proved that there was de facto separation freely consented for 10 consecutive years. 7. This appeal was admitted on the following substantial questions of law: i) Whether in a suit for divorce under Clause 8 of Article 5 of the Law of Divorce, it is enough to prove that the couple 5 are separated for a continuous period of 10 years, its continuity and duration? And ii) Whether in a suit for divorce under Clause 8 of Article 4 read with paragraph 3 of the Law of Divorce, it can be said on the face of litigation between the parties that the separation was in continuity? 8. Mr. Lotlikar, Senior Counsel appearing for the Plaintiff/Petitioner submitted that the Plaintiff is entitled to divorce in terms of Clause 8 of Article 4 of the Law of Divorce in as much as the evidence on record clearly proves that the couple are separated for continuous period of 10 years. He further submitted that in terms of paragraph 3 of Article 4, the reason for which the husband and wife are separated, is irrelevant and once the Plaintiff proves that the couple are factually separated for a period of 10 years, the Plaintiff is entitled to a decree of divorce in terms of Clause 8 of Article 4. In support of this submission, Mr. Lotlikar, placed reliance upon unreported judgment dated 20/10/2000 passed by the learned Single Judge of this Court in First Appeal No.66 of 1997. 6 9. Per contra, Mr. Bhise learned Counsel appearing for the Defendant/Respondent submitted that the Plaintiff cannot be permitted to take advantage of his own wrong. He further urged that the evidence on record clearly proves that the Plaintiff was having illicit relationship with Shobana Kudalkar and out of the said relationship two children were born. He further submitted that the Defendant was compelled to stay separately from the plaintiff and inspite of her desire to join her husband, she was not allowed to do so. According to Mr. Bhise unless the husband and wife reside separately with free-consent, the husband or wife is not entitled to a decree of divorce in terms of Clause 8 of Article 4. He, therefore, submitted that the impugned judgment and decree does not not deserve any interference by this Court. In support of his submission, he placed reliance on the judgment of the Apex Court in the case of Shyam Sunder Kohli V. Susma Kolhi @ Satya Devi (2004) INSC 601. 10. I have carefully considered the rival submissions and perused the record. Clause 8 of Article 4 and paragraph 3 of the explanation on which reliance has been placed by Mr. Lotlikar read thus: 7 “ Article 4- The contested divorce may be obtained only on the following grounds and on no other: ....... (8) De facto separation, freely consented, for ten consecutive years, whatever may have been the cause of that separation. Paragraph 3. In a case coming under clause (8), the evidence shall be restricted to the fact of separation, its continuity and duration.” 11. No doubt, in terms of paragraph 3 of Article 4, in a case under clause (8), the evidence shall be restricted to the fact of separation, its continuity and duration. However, the fact remains that in order to get the decree of divorce under Clause (8) of Article 4, the de facto separation must be freely consented by both the parties for 10 consecutive years, whatever be the cause of separation. In order to get a decree of divorce under clause 8, the party seeking divorce must establish free consent on the part of both the parties in respect of separation for 10 years. I am unable to accept the submission of Mr. Lotlikar that in terms of paragraph 3 the consent is totally irrelevant while deciding the suit filed claiming divorce under Clause (8) of Article 4. It is well settled rule of interpretation that a provision in a statute has to be read 8 harmoniously and applying this principle, Clause (8) and paragraph 3 of Article 4 have to be read harmoniously. Merely because paragraph 3 provides that evidence shall be restricted to the fact of separation, its continuance and duration, the aspect of consent does not lose it relevance. In the present case, the learned Appellate Court in paragraph 13 of the impugned judgment stated that the defendant had vehemently contested the suit and in the additional written statement filed in that Court, the defendant had denied that the separation was duly consented by her. She further stated that she was ready and willing to join the plaintiff in the conjugal house. The Plaintiff did not lead any additional evidence on this ground. The learned Appellate Court, therefore, held that that separation was not freely consented. 12. I do not find any illegality or infirmity in the findings record by the learned Appellate Court. In so far as as the judgment dated 20/10/2000 in First Appeal No.66/1997 is concerned, the said case the learned Single Judge held that the wife had left the home on her own, when her husband was not present and in this factual background granted decree of divorce. I am,therefore, of the opinion that having regard to the factual background in the present case the said judgment does not advance the case of the Appellant. 9 In so far as the case of Shayam Sunder (supra) relied upon Mr. Bhise is concerned, the facts are entirely different and, as such it not it is not necessary for me to make reference to the same. 13. In view of the above discussion, I find no merit in the appeal. The substantial questions of law are answered against the Appellant. Consequently the appeal stands dismissed. Having regard to the facts and circumstances of the case, the parties are directed to bear their own costs. A.P. Lavande, J. Ap/-