Adhyaatmam Bhaamini vs Jagdish Ambalal Shah

G.D. Kamat, J.—This appeal is directed against the judgment dated 18th June, 1993 rendered by Family Court, Bandra, Bombay in Petition No. A-272 of 1990.

The respondent-husband instituted a petition for divorce alleging cruelty and desertion by the appellant-wife on 26thFebruary, 1990 vide Sections 13(1)(ia) and 13B of the Hindu Marriage Act, 1995. The Judge of the Family Court found favour with both the grounds and by the impugned judgment dated 18th June 1993, the marriage solemnised between the parties on 15th November, 1959 was directed to be dissolved. A direction was made requiring respondent-husband to pay Rs. 1,000/- per month to the appellant-wife by way of permanent alimony from the date of the order. A further direction was also made to the respondent-husband to hand over vacant and exclusive possession of Flat No. 602, Damodar Park, Building No. 3-E, Ghatkopar (West), Bombay within two months from the date thereof.

In the present appeal, some challenges have been made to assail the impugned judgment, but finally Mrs. Ponda, learned Counsel for the appellant- wife, has restricted her challenge on the ground that the judgment made dissolving the marriage between the spouses has gone ex-parte as against the appellant-wife. She vehemently contended that in the proceedings of this nature, this Court should take appropriate view and ex-parte proceedings must be held not palatable and, therefore, she urged that proceedings are required to be remanded to the Family Court so that the appellant-wife is able to cross-examine respondent-husband from the stage at which the proceedings were directed to go ex-parte. Mrs. Ponda also suggested that the appellant-wife herself is ready to depose in the matter and that appellant-wife will not shy away from allowing herself to be cross-examined by the Counsel appearing for the respondent- husband. Otherwise, the grievance of Mrs. Ponda is that in view of insufficiency of evidence and that too as a result of evidence being shut off by proceeding ex- parte, the appellant-wife is unable to argue the appeal on merits because evidence recorded is one sided and in the absence of respondent-husband not being cross- examined, it is bound to be held that it is overwhelmingly against the wife, but rest the submission that proceedings are remanded to the Trial Court on ground of insufficiency of evidence, she has relied upon the decision in the case of Sudha Devi Vs. M.P. Narayanan and Others, .

It is not necessary to dilate on this authority and otherwise it is well-settled law that the parties must be allowed to fight their battles on merits and that way the expression "sufficient cause" as appearing in the Statutes like limitation Act and CPC has been liberally construed by the High Courts and Apex Court. It is also possible to accept a view that ex-parte order and decree made are set aside by awarding costs to the opposite party so that the res between the parties once for all is adjudicated by the Court upon having the versions of the parties before the Court.

At one stage, the Court felt that this being proceeding for dissolution of marriage and that too which was solemnised in year 1959 ought not be allowed to be dissolved by ex-parte proceedings on consideration that the appellant-wife must have some opportunity to contest the matter, but then this appeal is very vehemently opposed by the respondent-husband through his Counsel Mr. Anil Mehta. Mr. Mehta pointed out that in the first place, no useful purpose would be served by remanding the proceedings to the Family Court to afford any opportunity to the appellant-wife to adduce evidence as it would bear no fruits whatsoever. He points out that a look at the pleadings filed by the appellant-wife in answer to the Matrimonial Petition instituted by the respondent-husband would reveal that the appellant-wife has been consistently holding out that her husband is guilty of cruelty to her. He relies upon Paragraph 34-g which reads thus :

"All of which amount to more than mental cruelty on the part of the petitioner. The respondent states that the petitioner is guilty of the following : fraud in marriage, embezzlement, attempted murder, harassment for dowry and Stridhan, confessed adultery, wife''s defamation misrepresentation, misinformation, molestation and general harassment with applied gangster tactics instigating and supporting the trespassing of their younger son and his wife in the wrongful and forceful occupation of the respondent''s children''s room, and in the case of his mother trespassing her. flat in general, even though the respondent had objected to the same, the promotion of flesh trade if not as a trader as a customer and the violation of SITA through immoral traffic as already confessed several times in the privacy of the bed-room. Benamdari transactions by the wrongful use of their elder son''s revoked general power of attorney since July, 1984 and tax evasion prosecution infringement of FERA and the NIR status of their elder son who is a USA citizen; the wrongful kinship demotion of their younger son to a ''Ghar Jamai'' and correspondingly the wrongful kinship promotion of their younger-daughter- in-law to an ''adopted daughter'' illegally; attempted rape in marriage, irregular sexual relationship demands from wife and its clandestine practice outside; betrayal of trust in marriage, the violation of marriage contract and marriage vows; the violation of a wife''s socio-economic status and role; the violation and tarnishing of wife''s image in her society and family, the violation of the wife''s motherly status and role; the wrongful depreciation of the respondent''s invaluable contribution as wife, mother, daughter-in-law, mother-in-law, and affined kin and now as grand-mother; the wrongful depreciation of the respondent image as friend, society member, wife of business partner, as housewife, research scholar, student, intellectual, etc. The respondent states that the contents of the petitioner''s M. J. petition serve as a synopsis to all the above criminal and civil offences within matrimonial while the respondent''s reply to the same spells out each crime he has committed against her and her sons throughout these 31 years or more since he has known her."

Apart from direct allegations of cruelty being meted out by her to her husband, Mr. Mehta says that in Paragraph 9-a, the appellant-wife has stated :

"The respondent says that this in itself is proof that the petitioner is indeed the offending party in marriage. What the petitioner fails to realise is that by bringing up this issue he has indeed upset the hornet''s nest, when he could have requested for a divorce by mutual consent and saved his face. As the judicial saying goes, the criminal always returns to the scene of his crime the petitioner has gone back to his crimes."

From what is extracted above, he points out that despite all sorts of allegations made against the husband, the appellant-wife clearly stated that in reality her husband ought to have filed a Divorce Petition by mutual consent and that way save his face.

The attempt of Mr. Metha, learned Counsel for respondent-husband, is that when appellant-wife herself has labelled and urged cruelty as against her husband who is himself seeking divorce on the same ground and when the appellant-wife herself suggests that her husband ought to have sought a divorce by mutual consent, there can be no question of remanding the proceedings, to the Family Court and have another round there so as to delay the entire proceedings. He then says that the history of the litigation as also the conduct of the appellant- wife in the proceedings has not been upto the mark and a bare look to the proceedings before the Family Court from April, 1993 until its culmination on 18th June, 1993 would suggest that the appellant-wife allowed the proceeding to go ex-parte against her by deliberately remaining absent and also with a view to protract the same.

We find some merit in this contention. It is necessary to point out that as against refusal of some interim order, the appellant-wife had instituted writ. Petition No. 37 of 1993 which came up before learned Single Judge who summarily rejected the same on 5th February, 1993. While, however, recording that order, the learned Judge gave direction to the Family Court to hear and dispose of the matrimonial petition as expeditiously as possible and preferably by end of June, 1993. It is based upon this order of the learned Single Judge that the Family Court activated itself and indeed started proceedings in the petition as earnestly as possible. The proceedings were first placed on board on 28th April, 1993. It is not necessary to refer to the various dates that intervened between the afore- mentioned date and the final disposal of M.J. petition but it is clear that on large number of occasions, the appellant-wife was not present before the Family Court. Secondly, whenever adjournments were sought, the Family Court granted the same but what is, however, relevant not to notice is that the respondent-husband was first examined in support of the Divorce Petition on 21st May, 1993. The matter thereafter was posted to 27th May, 1993 for continuation of examination-in-chief. The matter thereafter appeared on Board on 31st May, 1993 on which appellant- wife sought an adjournment which was granted. The appellant cross-examined her husband on 2nd June, 1993. Thereafter made herself scarce on 4th June, 1993 nor appeared on 5th June, 1993. The result was that the Family Court was to close the evidence of respondent-husband. On 5the June, 1993, the son of the parties by name Nirvan Shah was examined. Some official from Income Tax Department was also examined on subsequent date. The appellant-wife did not appear on any one of the further dates until the matter culminated on 18th June, 1993.

An attempt is, however, made by Mrs. Ponda to suggest that appellant- wife had in the meantime left for Goa and she forwarded an application for adjournment addressed to the Family Court that too by courier service. An application was also handed over to the Lady Advocate to be handed over to the Judge of the Family Court by name Madhu Shetty. When the question came whether Advocate Madhu Shetty was appearing for the appellant-wife, she stated that she has not been instructed in the matter and that unknown lady had approached her and requested her only to tender the application to the Court. All this indeed reflects in the main judgment.

The question to ask that in view of the stand of the appellant-wife in the pleadings and otherwise her conduct in the proceedings no useful purpose can be served in remanding the proceedings to the Family Court and that way prolong the agonies of the parties. We are, in fact, sorry that the petition of divorce is required to be filed by one of the spouses who have otherwise crossed and entered the threshold of the old age, but then having regard to the stands adopted by both of them, we are convinced that the position reached is of no return and the marriage is irretrievable. In fact, evidence has been tendered by Nirvan Shah, the second son, which is against his mother. This being the position, in our view, no useful purpose would be served in interfering in this appeal and remanding the proceedings to the Family Court as that would amount to, as mentioned earlier, reviving a dead horse.

We may also mention that by now we are told that three Special Leave Petitions were instituted before the Supreme Court seeking relief as against some order or the other made in the proceedings. Even when this appeal came up for hearing when interim order was refused appellant-wife took up the matter before the Supreme Court in Special Leave Petition. The same was, however, dismissed on 16th May, 1994. The Supreme Court refused to entertain the petition and Supreme Court directed appellant-wife to cease to occupy the matrimonial flat and, on the contrary, directed the appellant-wife to occupy Ghatkopar Flat as directed by the impugned order of the Judge of the Family Court. The Supreme Court also enhanced the monthly alimony by Rs. 4,000/- with the result the alimony payable by respondent-husband to appellant-wife was Rs. 5,000/- per month. Mr. Mehta, however, told as a fact that respondent-husband has seen paying the alimony in an amount of Rs. 5,000/- per month and for that matter, Mrs. Ponda, learned Counsel appearing for the appellant-wife, told that the appellant has taken up the residence at Ghatkopar. In this view of the matter, no interference is called for. The question of monthly alimony has been raised before us. We, however, do not propose to go into the same. The respondent-husband is, however, directed to keep on paying alimony at the rate of Rs. 5,000/- per month covering November, 1995.

Accordingly, the appeal is dismissed. In the circumstances of the case, there will be no order as to costs. Certified copy expedited.