1 IN THE HIGH COURT OF BOMBAY AT GOA LETTERS PATENT APPEAL NO. 18 OF 2001 Shri Aldino Santos Braganza aged about 50 years, resident of Assagao, Bardez, Goa. ... Appellant versus Smt. Marle Dos Santos Braganza C/o. Smt. Sara Freitas, Verla, Parra, Bardez, Goa. ... Respondent Mr. M. S. Usgaonkar, Senior Advocate with Ms. G. Kale, Advocate for the Appellant. Mr. M. B. Da Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the Respondent. CORAM : S. A. BOBDE & N. A. BRITTO, JJ. DATE : 6/05/2008 JUDGMENT(Per N. A. BRITTO, J.) In this Plaintiff's Letters Patent Appeal, the short question for our consideration is whether the plaintiff is entitled for divorce under Article 4(4) of the Law of Divorce in force in the State of Goa which when translated reads as follows:- 2 The contested divorce may be obtained only on the following grounds:- 1. ..... 2. ..... 3. ..... 4. Ill-treatment or serious injury. 2. The Plaintiff married the Defendant on 19-4-1987. The Plaintiff is from Assagao whilst the Defendant is from Verla, Parra. The Plaintiff is a mechanical engineer working abroad and periodically comes to Goa whilst the Defendant is a lecturer in a higher secondary school. Theirs was an arranged marriage and the Plaintiff was elder to the Defendant by about 9 years. Armando, their only child was born to them on 16-3-1988. Their relations were rather strained at least from 3-11-1990 if not earlier, as a result of which the Defendant was residing at her mother's house at Verla, Parra during the absence of the Plaintiff while he was abroad. 3. On behalf of the Plaintiff, an advocate's letter dated 21-2-1991 was written to the Defendant to find out a solution in law in respect of the differences arising between the Plaintiff and the Defendant. That letter was replied to by the Defendant's letter dated 26-2-1991. The Plaintiff went for his job on 25-2-1991 and on the same evening the Defendant went to stay at her mother's house at Verla and when the Plaintiff returned on 20-3-1991, the Defendant was not in the matrimonial house at Assagao and she came on 3 22-3-1991, and according to the Plaintiff, without their son, and, when the Plaintiff questioned the Defendant, the Defendant told him that he would bring the son on the next day but she did not come as told to him but came on 2-4-1991 to collect some articles and when the Plaintiff asked her why she did not come earlier, the Defendant did not reply. The Defendant took some articles and went away. 4. The suit was filed based on an incident which took place at the Plaintiff's house at Assagao on 5-4-1991 regarding which there is no dispute but each of them have given their own versions. The suit was filed on 19-4-1991 and the summons on the Defendant were served on 8-5-1991. After the receipt of the summons by the Defendant, the Plaintiff received a letter dated 7-5-1991 on 14-5-1991 and based on the same the Plaintiff applied for amendment and incorporated additional ground for divorce. 5. Learned Senior Counsel appearing on behalf of both parties do not dispute that the first part of Article 4(4) refers to physical ill treatment and second part to mental cruelty. Not that the second part i.e. Mental cruelty would not include the first part i.e. physical ill treatment. 6. In other words, Plaintiff's suit for divorce is based on physical ill treatment particularly as regards the incident of 5-4-1991 and mental cruelty which is based on the allegation made by the Defendant in the said letter dated 4 7-5-1991. 7. The suit of the Plaintiff was decreed by the learned trial Court by Judgment/Decree dated 30-3-1999 but the said Judgment/Decree came to be reversed by Judgment dated 21-12-2000 of the learned Single Judge of this Court. 8. By our Order dated 30-1-2006, three points for determination were framed in this appeal. They could be re-numbered as follows:- 1. Whether the incident of 5th April, 1991 in the facts and circumstances of the case established ill treatment within the meaning of the said expression under Article 4(4) of the Law of Divorce justifying Decree of Divorce thereunder. 2. Whether the letter dated 7-5-1991 Exh.PW1/B disclose serious injury within the meaning of the said expression under Article 4(4) of the Law of Divorce in the State of Goa justifying Decree of Divorce. 3. Whether one instance of ill treatment or one instance of serious injury is sufficient to 5 entertain the suit and grant a decree of Divorce in terms of Art. 4(4) of the Law of Divorce in force in the State of Goa. 9. It is the case of the Plaintiff that on 5-4-1991 at about 5.30 p.m. when the Plaintiff was in the front garden, the Defendant came on a scooter and went straight to the bedroom without talking to the Plaintiff and the Plaintiff found that the Defendant had opened the cupboard with the key which was with her and started collecting her articles. The Plaintiff asked the Defendant as to why she did not bring their son and who was not seen by the Plaintiff for a long time to which the Defendant replied that she would never bring him and the Plaintiff therefore told the Defendant not to take anything from the house when the Defendant slapped the Plaintiff on his face and came in the balcony with the articles already taken and the Plaintiff followed her and after coming to the balcony the Defendant turned around and slapped the Plaintiff again threw his glasses down and the Defendant also tried to kick the Plaintiff but the labourer of the Defendant Shri Prabhakar Gad came forward and intervened. According to the Plaintiff, the incident was witnessed by Carmita D'Souza, Florinda D'Souza, (examined as PW3), Alex D'Souza and Prabhakar Gad (examined as PW2). The Plaintiff stated that the Defendant had ill treated the Plaintiff in the past also. 6 10. After the receipt of the said letter dated 7-5-1991, the Plaintiff amended the plaint and reproduced the imputation in the said letter which according to the Plaintiff constituted serious injuries i.e. mental cruelty. The said imputation was that during the periods the Plaintiff was absent from Goa on duty, his mother and his elder spinster sister Pramila who were also staying in the said house started ill treating the Plaintiff and the said Pramila stooped so low as to write anonymous letters against the Defendant regarding her family story background, mental illness, education, etc. It was also alleged that under their instigations and also on account of some illicit relations which the Plaintiff had developed somewhere in the Gulf countries, the Plaintiff began ill treating the Defendant whenever the Plaintiff returned home. The Plaintiff sent a reply by letter dated 31-5-1991 denying the allegations. The Plaintiff also stated that the allegations that he had illicit relations in the Gulf country was totally false. The Plaintiff also stated that the Defendant's behaviour was rude, obnoxious and unbecoming that of a young wife. The Plaintiff also stated that the said allegations in the said letter constituted a ground for divorce under Clause 4 of Article 4 of the Law of Divorce. 11. On the other hand, it was the case of the Defendant that the Defendant went to her mother's place with her child with the consent and permission of the Plaintiff and it was never her intention to leave the conjugal domicile nor she had left the same but she was compelled to stay at her mother's place as the Plaintiff was not ready to allow the Defendant to reside in 7 her conjugal house at Assagao. In the first written statement filed by the Defendant, the Defendant denied that there were any differences between the Plaintiff and the Defendant and stated that there were differences between the mother-in-law and the spinster sister-in-law by name Pramila and the Defendant. The Defendant stated that the Plaintiff was under the control of his mother and sister Pramila which gave rise to the said differences but the Defendant had always shown her willingness and was still ready to sort out the differences, if any still existed. The Defendant stated that through her lawyer she organized a meeting with the Plaintiff as well as his lawyer who suggested to sort out the differences arising between the mother-in-law and the spinster sister-in-law and further suggested that being unable to stay in the house when the Plaintiff went abroad due to harassment of mother-in-law and spinster sister-in-law including the harassment of the family servant by name Rosa Costa who was with their family for 12 years and who tried to control the affairs of the family that the Plaintiff should hire a flat or house elsewhere so that the Plaintiff and the Defendant with the child could stay separately as normal families reside but the Plaintiff turned down the proposal as the Plaintiff was adamant to seek a divorce though the Plaintiff would not succeed nor the Plaintiff would be entitled to it. The Defendant admitted having come to the conjugal house on 2-4-1991 as she wanted some books and a birth certificate of her son but she could take only the birth certificate. The Defendant denied that the Plaintiff inquired with the Defendant as to why she did not come to Assagao despite her knowledge of return with the Plaintiff. 8 The Defendant stated that it was the duty of the Plaintiff to come and pick up their son soon after he returned but did not even bother inspite of the fact that the Defendant wrote to inform her about the date of his arrival. It was the case of the Defendant that on the same day i.e. on 2-4-1991 the Plaintiff told the Defendant that he wanted her back if the Defendant accepted conditions such as (a) the Defendant should obey whatever terms and conditions he puts, (b) the Defendant should obey and listen to whatever he says, (c) the Defendant should sell her scooter and (d) that the Defendant should cut off the relations with Dr. Ena Abreu and family and families of Tony D'Souza and Olavo Fernandes from Assagao, and, in case the Defendant was not prepared to accept the said conditions she should get out with her baggage. 12. The Defendant stated that she was trying her best to unite and not to separate and for this the Defendant went to seek the assistance of Dr. Camila Costa. The Defendant admitted having gone on 5-4-1991 to collect some of her belongings which were of day to day use and went to open the cupboard, the keys of which were with her, and when the Defendant was removing some of her belongings the Plaintiff came and threatened her not to remove anything from the cupboard and further threatened the Defendant to sign the car papers to enable him to transfer the car which was a Fiat car standing in the name of the Defendant and also demanded from the defendant a sum of Rs.7000/-, but the Defendant refused to sign the car papers as a result of which the Plaintiff got annoyed and started abusing the Defendant with filthy language and started 9 twisting the arms of the Defendant so badly that she sustained injuries and refused to allow the Defendant to take anything from the cupboard and pushed the Defendant out of the room and at this time the sister of the Defendant by name Madeline Fernandes was present outside the room and she called her for help and whatever articles were taken out from the cupboard were dumped in a room adjacent to the bedroom by the Plaintiff and the Plaintiff closed the room and thereafter the Defendant filed a N.C. complaint with Mapusa Police Station. 13. It was the case of the Defendant that the Plaintiff was so arrogant that he was on the verge of assaulting the Defendant very badly, and in self defence, the Defendant removed the glasses of the Plaintiff which the Plaintiff was wearing so that the Plaintiff was not able to see, the Plaintiff being a myopic. As per the Defendant, the Plaintiff has cooked up a story and the allegation regarding the attempt of kicking is with the intention to make a ground for divorce. The Defendant denied that she assaulted or attempted to kick the Plaintiff as alleged. As per the Defendant the said Prabhakar Gad was in the balcony and witnessed the removing of the glasses and so did the sister, the said Madeline. The Defendant has stated that there was no incident of assault by the Defendant. According to the Defendant, it is the Defendant who was ill treated by the Plaintiff, his mother and his sister by name Pramila who had gone to the extent of writing anonymous letters one of them being dated 5-3-1987 and the Defendant had obtained the opinion of the handwriting expert 10 vide report dated 17-12-1990. The Defendant stated that on 3-11-1990 the Plaintiff hit the Defendant and tried to strangle her and the mother of the Plaintiff asked the Defendant to get out of the conjugal house and both insulted the Defendant calling her half caste and mad and accused her of having affairs with a bearded man as a result of which she had pain in her neck and also bruises on her arm and therefore she had approach Dr. Abreu, a family friend of the Plaintiff, who prescribed Brufen and salt water fomentation. The Defendant also stated that on 22-12-1990 at night time the Plaintiff hit the Defendant and the mother-in-law pulled her hair twice, and, the Defendant approached Fr. Joe, Mr. Tony, Mrs. Angela D'Souza and Mr. Olavo Fernandes all being the neighbours of the Plaintiff and reported the incident to them and all of them came to the house of the Plaintiff when the Plaintiff admitted having hit the Defendant. On the same night when the Defendant was screaming for help because of hitting and pulling of hair by the Plaintiff and his mother, the Defendant ran out from the back door and called out to the sisters of Devmata Convent who were residing in the next house and three sisters from the said Convent came for her help and thereafter went to the house of the Plaintiff to settle the issue. As per the Defendant, the ill treatment by the Plaintiff and that of his mother as well as of his sister were continuously going on from time to time and the Defendant was totally frustrated on account of emotional security. As per the Defendant due to the instigations of the sister and the mother of the Plaintiff, the Defendant has been forced to stay with her mother at Parra and no steps are taken by the Plaintiff, on his own, to take her 11 back and on the contrary inspite of efforts made by the Defendant the Plaintiff has not come forward to sort out the differences and the Plaintiff has deserted the Defendant when the Defendant is ready and willing to stay with the Plaintiff. 14. Initially, three issues were framed by the trial Court. The first was regarding ill treatment by the Defendant, the second was regarding the Defendant leading an adulterous life and the third regarding the Defendant being forced to leave the conjugal home due to the ill treatment given to her by the sister and mother of the Plaintiff. Issue Nos.2 and 3 came to be deleted and only issue which remained to be adjudicated was the first issue regarding the ill treatment by the Defendant. 15. The learned trial Court recorded evidence of three witnesses for the Plaintiff and four of the Defendant and came to the conclusion that the Plaintiff had succeeded in proving that the Defendant had ill treated the Plaintiff and therefore the Plaintiff was held to be entitled to divorce under Article 4(4) of the Law of Divorce. 16. However, the learned Single Judge of this Court came to the conclusion that the incident of 5-4-1991 of slapping the Plaintiff by the Defendant, even if held to be proved, it could not be called so humiliating, so discrediting and so shameful or causing such mental agony that it should be 12 treated as a ground for dissolution of marriage. The learned Single Judge also held that the said incident appeared to be of doubtful nature as no medical certificate was produced by the Plaintiff showing any injury on his person and thus there was neither any injury nor any humiliation. The learned Single Judge accepted the Defendant's version as regards the said incident as honest and sincere and held that the repeated attempts made by her for reconciliation were corroborated by other witnesses. The learned Single Judge noted that the evidence of Prabhakar Gad/PW2 had to be weighed very cautiously and with circumspection, and, this the learned Single Judge did, inspite of the fact that the presence of Prabhakar Gad/PW2 was admitted by the defendant not only in the front portion of the garden of the Plaintiff but in the veranda of the house itself. Regarding the letter dated 7-5-1991 the learned Single Judge held that one such sentence did find a place therein about the husband having some affairs in the Gulf countries but the Plaintiff did a mountain out of a molehill when the whole trust of the letter was on the mother-in-law and sister-in-law of the Plaintiff. The learned Single Judge also held that it was erroneous on the part of the trial Court to have granted the divorce on the vague statement in the letter dated 7-5-1991 allegedly made on the instructions of the Defendant and therefore proceeded to dismiss the suit. 17. Efforts were made by this Court to bring about a reconciliation between the parties. The efforts did not succeed. Admittedly, both the parties are living separately for over seventeen long years. As per the Defendant, the 13 Plaintiff has deserted her. It can be reasonably inferred, notwithstanding Defendant's hope to the contrary, that the marriage between the parties has broken down irretrievably. Time, it is said, heals all wounds; but there are times when time only festers them. This appears to be a case where passage of time has only widened the gap between both the parties. Irretrievable break down of marriage, as the law stands, gives no ground for divorce but it is apt to keep in mind what the Apex Court stated in V. Bhagat v. D. Bhagat(1994(1) SCC 337). The Apex Court has stated that “while scrutinizing the evidence on record to determine whether the grounds alleged are made out and while determining the relief to be granted, the said circumstance can certainly be borne in mind”. Matrimonial relations between them have ceased to exist de facto, though they exist de jure. It will serve no purpose, either of the parties, or the society that they should remain as husband and wife only bound in law when in fact they have ceased to be as such. 18. Before we deal with the incident of 5-4-1991, which as already stated, is otherwise admitted, though the versions differ, it must be stated that the Plaintiff and the Defendant parted company on 25-2-1991, when the Plaintiff went to the Gulf for work and the Defendant to her mother's place. The Plaintiff returned from the Gulf on 20-3-1991 but did not find the Defendant in the house. As per the Plaintiff, the Defendant knew his full programme of his arrival and departure and that statement cannot be doubted because the Plaintiff used to work for about four weeks and then again come 14 on leave for about four weeks. If the Defendant had gone to her mother's house on 25-2-1991 with Plaintiff's permission, as stated by her, what prevented the Defendant returning to the conjugal house before the return of the Plaintiff on 20-3-1991 as was expected of any spouse? It is also admitted that the Defendant came to the house on 22-3-1991 and according to the Plaintiff, without their son but according to the Defendant she had gone to the neighbour's house on that day where she came to know about the arrival of her husband and thereafter she visited the house. It is also not the case of the Defendant that on knowing that her husband had arrived, she returned back to reside in the house, and at least that would have been normal behaviour as a spouse in case she had gone to her mother's house with the Plaintiff's permission, as otherwise stated by her. The Defendant again visited the house on 2-4-1991 only to collect some articles and when questioned by the plaintiff, as to why she had not come earlier, the Defendant did not reply. Then, the Defendant came again on 5-4-1991. The question of the Defendant asking the Plaintiff whether he did not want her back, in our view, would not arise since it is not the case of the Defendant that she was thrown out of the house by the Plaintiff and in case she had gone to her mother's house with the permission of the Plaintiff it was expected of her to have returned back before the Plaintiff arrived and in any event immediately thereafter, after she came to know about the arrival of the Plaintiff. 15 19. Admittedly, the incident of 5-4-1991 took place in the presence of Prabhakar Gad/PW2 and the Defendant's sister Madeline and although the Plaintiff examined the said Prabhakar Gad/PW2 to support his version, the Defendant chose not to examine her sister, the said Madeline and apparently without any explanation. This was a fit case to draw adverse inference against the Defendant for non examination of the said Madeline. As per the Plaintiff, she saw the Defendant coming on a scooter and going directly to the bedroom without wishing him and she came without bringing their son and he followed her in the bedroom and he saw the Defendant removing some articles from the cupboard and when he asked her as to why she did not bring her son to which she replied that she would never bring the son to the house, and, he told her not to take the articles from the cupboard and for this the Defendant slapped him on his face, and thereafter locked the cupboard, and came out in the balcony, after having collected the articles, from the cupboard and he followed her in the balcony and thereafter she slapped the Plaintiff on his face as a result of which, his spectacles fell on the ground and when he was trying to pick up the spectacles she was about to kick him when Prabhakar/PW2 intervened. The Defendant's version as regards this incident is that she had gone to collect her son's things and her sister was accompanying her but she did not enter the gate and she went inside the house in the room and opened the cupboard to take the required articles and the Plaintiff came and told her that she would not take anything out of the house and further told her that she had to sign the car papers and when she told him that she would not sign the car papers he got 16 angry and started twisting both the arms and took away the things and threw them in the adjoining room and thereafter started pushing her out and at the main door when he was trying to assault her, she took off his glasses because the Plaintiff cannot see without glasses and thereafter she lodged her complaint. 20. The learned Senior Counsel on behalf of the Defendant contends that it is the Defendant's version which is more credible. Learned Counsel further contends that it is the Plaintiff who would have been angry and that explains that it is the Plaintiff who twisted the Defendant's hands. We are