1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.8 OF 2008 WITH FIRST APPEAL NO.1554 OF 2007 A.P.C.D’souza (Retired Colonel) Age: 54 Yrs., occu. Pensioner, r/o F-191, ‘GREVILLEA’ Magarpatta city, Hadapsar, Pune-13. .. APPELLANT VERSUS Aloma D’souza w/o Col.A.P.C. D’souza, Age: 57 Yrs., occ.Household, r/o C/o V. D’souza Arihant Colony, Penta Mala, Kothi Road, Ahmednagar. .. RESPONDENT ***** S/Shri SL Jondhale & AS Jondhale,Advocates for Appellant; Shri SS Deshmukh,Advocate for Respondent. ----- CORAM : K.U.CHANDIWAL, J. DATE : 9TH JULY, 2009. JUDGMENT : 1) Heard Mr.Jondhale for the appellant and Mr. S.S.Deshmukh for sole respondent. 2) The order in Special Marriage Petition No.12/2005, dismissing the petition for divorce 2 is subject of challenge in First Appeal No. 8/2008; while the grant of application, under Section 23 of the Indian Divorce Act, 1869 for permanent alimony in favour of wife, is subject of First Appeal No.1554/2007. 3) The parties are referred as husband and wife, and at places by their first name. 4) The marriage of husband and the wife was solemnized on 13th November, 1983 as per the Roman Catholic rites at Ahmednagar. Out of the marital relations, the wife gave birth to a son – Richard in the year 1984. Other son is Ronald. Both these sons are now grown up and duly employed in prominent positions. The husband has retired as a colonel from armed forces recently. The wife was a teacher. The couple is not sailing well since 1984 as before the birth of Richard, the wife has left matrimonial home, which has been objected to by the husband. It was ultimately from April 2005, the behaviour of the husband has become odd and aggravated. He used to return home late. The wife says, in the month of June 2005, he stopped taking meals with her on the ground that 3 he was not happy with cooking, husband started abusing the wife, asperting that she was good for nothing. She complained, the husband would unnecessarily and mercilessly beat her and coerced to demand divorce, as he wanted to remarry. The husband even tried to strangulate her on number of occasions. 5) The husband led his evidence and that of his sister, three witnesses from military office to establish how he suffered at the hands of the wife. On the other hand, the wife has examined herself and her two sons Richard and Ronald. The wife has produced monthly statement of salary account of the husband at Exhibit-43 to 46. 6) The husband in his evidence has disclosed that when he was at Patiyala in the year 1992 and also in the year 2001, when he was posted at Coimbatore, the wife alleged him of infidelity castigating that the husband has affairs with house-maid. These allegations of the wife apparently were vague, could be even seen from the pleadings and her examination-in-chief. In the year 2005, the wife accused the husband 4 for having illegal relations with a lady in the office. 7) The wife did not stop here, she made written complaint to the superiors of the husband at Ahmednagar, which was followed by a show cause notice from headquarters, Southern Command Pune. 8) The husband pleads, on 10th July, 2005, it was Sunday, the wife left the home with younger son for church at about 7,00 hrs., however, she did not return home. She had already such planning in her mind as the important belongings were removed by her. The wife has deserted him. 9) The husband has alleged, it was from November, 1983 the wife has subjected him to social persecution embarrassing humiliation and mental torture. She has repeatedly accused him of lack of moral integrity and character. She has willfully neglected and repeatedly deserted him and ultimately the husband is left in these old age to fend for himself. 10) It is more than clear that the conduct of the parties has reached a stage of loosing 5 peace and ambiance at the abode. There is indeed privation, since all the soft mutual feelings between them, which is the basic feature between a couple. The wife has made a complaint in writing dated 5th August, 2005 to the Commandant of MIRC. A suggestion was given to the husband in paragraph 5 of the cross-examination that on 17th May, 2005, the husband had purchased a refrigerator from Vishal Departmental Stores and had given the same to one lady of his office. 11) Witness no.2 – Shrikantpure produced action taken based on letter of allegations made by wife Almola against the husband. 12) The wife, through her petition, before the learned Additional Sessions Judge, Ahmednagar, being Marriage Petition No.14/2005, sought judicial separation from the husband and by prayer clause (C), she sought permanent alimony to the tune of Rs.15,000/- till her life time. In this petition, the wife repeated her allegations of illegal relationship between husband and a lady and fear to the life of wife, as the husband has threatened to do away. 6 13) It is not in controversy that the wife has addressed a letter to the superiors of the husband about his illicit relations with the lady. She even stated that, she knew the name of the lady, however, did not mention it in her application or did not so state in her evidence. She has sent a complaint to the wife of Chief of Army staff against the husband, which also prompted an inquiry to faced by the husband and meeting all sorts of humiliations before his superiors. In paragraph 8 of her evidence, the wife has admitted - “It is not correct to say that, I have made false allegations against my husband by saying that he is sleeping with prostitute.” 14) It was the wife’s reckless letter/ complaint against the husband, the Department initiated inquiry and The Military Officer Commander Mr. Ramesh Kumar Jangu has stated that “ the inquiry was made under the supervision of Brig. Nabab and the decision has been given by the organization.” Based on such inquiry and decision, final letter, Exh.36, under his 7 signature, was issued. It is stated in the letter that the allegations, made by the lady (wife) against the officer (husband) regarding harassment and illicit relations, have been found to be baseless and with no substance. The original letter of the wife is not on record. However, the fact remains, the wife did not dispute of making such letter, alleging in chastity to her husband, and having his extra- marital relations with another lady. The wife had even did not spare the husband in presence of the grown-up two sons, since she stated, the husband has no character and he slept with prostitute and come home. These facts are reiterated by husband in his evidence. There is no denial from the wife to this effect. 15) The contention that on 17th May, 2005, the husband had purchased a refrigerator from Vishal Departmental Stores, Ahmednagar and gave it to another lady, is not proved by the wife. The wife contended that husband has received mobile message from said lady on 17th May, 2005 at 5.20 p.m., communicating receiving the 8 refrigerator. However, it is not again established by leading the requisite evidence to that effect. The husband has volunteered to produce his handwriting to establish that there is no writing made by him of receiving any mobile phone or message. The wife in the pleading has stated, husband has developed illicit relations with another lady. These aspersions were false to the knowledge of the wife, but she had her own reservations. She was a teacher for 18 years, has two grown-up prominently placed children, but oblivious to the standard of the family, she has made the reckless allegations. 16) Cruelty has different shades and angularities. It is a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the later that it is not safe for the other spouse to continue the matrimonial relationship. It is well settled, mental cruelty is state of mind and feeling with one of the spouses due to the behaviour by the other. The wife herself came with a case, seeking judicial separation from the husband on 9 the ground of his immoral character. She had, as stated earlier, resorted to make representations to the higherers of the husband and the inquiry letter (Exhibit-36) is eloquent. In this situation of the matter, since the matrimonial matters more lean to rest on mutual understanding and it should be in the social norms as well, the reckless allegations made by the wife, has led the marital status to such a stage of irretrievably breakdown in the matrimonial relationship. 17) During the course of submissions, it was canvassed by the counsel for wife that the allegations of husband getting remarried are not false as the husband through his wife informed this Court, his such desire. I quite see, however, the husband at this fag end of his life since he is retired, needs a friend, a caretaker to look after him and if he feels to get remarry, it cannot be a blot for such exercise or cannot be treated to be the only root cause which prompted either the wife to seek separation or the husband seeking divorce. The evaluation of 10 evidence indicate that the wife was also fed up with the husband and she herself deserted him not for once, but for several occasions. She did not even attend funeral of her mother-in-law, who expired on 11.7.2002, without any reason. This also speaks of her behavioral pattern. 18) The Hon’ble Supreme Court in the matter of Chetan Dass Vs. Kamla Devi – AIR 2001 SC 1709, in paragraph 14 have observed thus : 14. Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by Statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of 11 a well knit, healthy and not a disturbed and porous society. Institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of irretrievably broken marriage as a straight jacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.” 19) The long period of continuation separation between the spouse has also added to the situation that it has become practically difficult for them to live together. The reckless allegations made by the wife attract the terms of cruelty as envisaged in Section 10 of the Divorce Act, 1869 as the wife has treated the husband to such a cruelty as to cause a reasonable apprehension in his mind. 20) In the result, the request of the husband for dissolution of marriage between the 12 spouse needs to be favourably considered. 21) Now, comes award of alimony as sought by the wife. The husband has retired in June-2007. He was drawing a good salary of Rs.35,000/- at the material time during employment. Now the pension drawn by the husband is Rs.15,000/- or more. However, it was canvassed that the husband was to shell out the EMI of Rs.8315/- towards purchase of a flat at Pune and hence, he has only left Rs.7000/- with him. This may be correct, however, the flat at Pune is bound to add to the earnings of the husband, if he is not residing therein. He has purchased the same in joint name of the wife. The wife has to live with standard akin to that of the husband. Consequently, even if the post-retiral benefits in monetary terms are considered, they come to Rs.14098/- with regular additions therein, the award of maintenance by the learned Judge to the tune of Rs.7,500/-, needs no interference. It may be that the two sons of the spouse are now earning, that by itself, the right accrued to the wife to live with a reasonable standard from the earnings of 13 her husband is not taken away. It is correct that the husband has in past made various expenses over educational purposes of the two children. It was canvassed, that the wife is getting Rs.1,000/- as interest from deposited amount of Rs.1,50,000/- on 4.8.2004. The total emoluments of the husband, apart from the pensionary benefits, made the learned Judge to award permanent alimony @ Rs.7,500/- in favour of the wife, which, in the fitness to the facts and the status of both the parties, is reasonable and not unjust. Consequently, no interference is warranted in such directions of learned Additional Sessions Judge dated 24.8.2007 in Special Marriage Petition No.14/2005. Hence, following order - i) First Appeal No.8/2008 moved by Col.A.P.C.D’souza (Special Marriage Petition No. 12/2005) is allowed as under - (a) It is declared that the marriage between appellant – A.P.C.D’souza and his wife respondent – Aloma D’souza is dissolved; 14 (b) The parties are warned that remarriage before six months from the date of this judgment is prohibited in terms of Section 57 of the Divorce Act, 1869. No costs. Respective Civil Applications disposed of. ii) First Appeal No.1554/2007, moved by Col.A.P.C.D’souza challenging the Judgment and Order in Special Marriage Petition No.14/2005, is dismissed. No costs. Respective Civil Applications disposed of. ( K.U.CHANDIWAL ) JUDGE bdv/fa8-08