Deserter Wife Can’t Challenge Second Marriage of Husband – Bombay High Court Judgement

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 87 OF 2003

Vardhaman @ Pushkaraj Bamb .. Appellant

V/s

Smt. Alka Vardhaman Bamb .. Respondent

Mrs.Sunanda Kumbhat for the appellant.

Mr.A.P. Vanarse for the respondent.

CORAM : B.H. MARLAPALLE & D.G. KARNIK, JJ.

DATE OF RESERVING THE JUDGMENT : 27TH FEBRUARY 2009

DATE OF PRONOUNCING THE JUDGMENT: 7TH MAY 2009

JUDGMENT : (Per D.G. Karnik, J.)

1. This appeal is directed against the judgment and order dated 21st June 2003 passed by the learned Judge of the Family Court, Pune dismissing the petition bearing PA No.654 of 2002 filed by the appellant-husband against the respondent-wife for dissolution of their marriage.
2. The case of the appellant is that he and the respondent were married as per the Hindu Religious Rites at Pune on 4th June 1985. The appellant was permanent resident of Village Bhadgaon, District Jalgaon and the said fact was known to the respondent and her parents. After the marriage, the respondent lived with the appellant for a period of 1 1/2 months at Bhadgaon. On 10th August 1985, in the Hindu religious Lunar month of “Adhik Mas“, the respondent’s brother fetched her from Bhadgaon to Pune. After a few days, the appellant also went to Pune to the place of the respondent’s father to fetch the respondent back to Bhadgaon, but she refused to accompany him. The appellant again went to Pune in September 1985 to fetch the respondent, however she again declined to go with him. Her parents suggested the appellant that he should settle in Pune permanently and do his business there. The appellant did not agree and thereupon the respondent refused to go with him to Bhadgaon. The appellant, his father, uncle and other relatives made several attempts to persuade the respondent and her parents, but the respondent declined to go to Bhadgaon and stated that she wanted to stay at Pune and would not stay with the appellant anywhere else. The respondent without just or sufficient cause had deserted the appellant since August 1985 for a period of 2 years. The appellant, therefore, filed a petition in January 1988 for dissolution of their marriage by a decree of divorce.
3. The respondent filed her written statement and contested the petition. She denied the averments made in the petition and further pleaded that the appellant had kept with himself the gold ornaments given to her at the time of marriage. The appellant and his family members were greedy. On several occasions, they had pressurised the respondent to bring money from her parents. On one occasion, they also told her to bring all her certificates so that a loan could be raised in her name which should be repaid by her father. She admitted that she went to her parents’ place in August 1985 in the month of “Adhik Mas” as per Hindu calendar,but pleaded that the appellant did not fetch her back and insisted that she should bring money from her parents. Significantly, the respondent did not mention what was the amount that was allegedly demanded by the appellant or his parents. Only a vague allegation was made that the appellant and his parents had been demanding money and had told her to come back with money. She further admitted that the appellant had sent notices through his advocate on 8th September 1987 and 18th October 1987, but denied their contents and stated that the notices were duly replied by her. The respondent amended her written statement in November 2002 and by the amendment she pleaded that during the pendency of the petition, the appellant had remarried one Kalpana, daughter of Shantilal Dudhedhiya and had begotten two children from her. She pleaded that the appellant was cohabiting with his second wife Kalpana and on that count the respondent was entitled for a separate residence and maintenance from the appellant.
4. With these pleadings, the parties went for trial. The petitioner examined himself Premsukh Motilal Bamb, Dilipkumar Bamb and Nemichand Kunkulol as witnesses. The respondent examined herself and also examined Pandharinath Patil, Sharadkumar Moharir and Shantilal Dudhediya as witnesses.
5. After considering the oral and documentary evidence, the Family Court held that the appellant had failed to prove that the respondent had deserted him without just and sufficient cause for a continuous period of 2 years preceding the filing of the petition. After considering the evidence adduced by the parties,the Family Court dismissed the petition for divorce filed by the appellant. Aggrieved appellant is in appeal.
6. After hearing the learned counsel for the parties, the points that arise for our determination and our answers thereto are as follows:

(1) Whether the appellant Yes. (original petitioner) has proved that the respondent had, without any reason and sufficient cause, deserted him for a continuous period of 2 years preceding the date of the petition?

(2) If answer to the point no.1 is No.in the affirmative, whether there is any ground for refusing to pass a decree of dissolution of the marriage?

REASONS

7. The marriage between the parties was solemnised on 4th June 1985. In his examination in chief, the appellant has stated that after the marriage, the respondent stayed with him initially for 8-10 days and after a brief stay of 4-5 days with her parents she returned to the matrimonial house. They then stayed together at Bhadgaon till August 1985. On 10th August 1985, Bharat (the brother of the respondent) came to Bhadgaon and the respondent went with him to her parents’ house. In the month of September 1985, the appellant went to Pune to fetch her back for cohabitation which she refused. Thereafter, the father of the appellant wrote 3-4 letters to the parents of the respondent requesting them to send her, but each time her father replied that the respondent was ill. Under the pretext of illness, the respondent refused to go to Bhadgaon and cohabit with the petitioner. Premsukh Motilal Bamb (P.W.2) has stated that the appellant is his nephew. He has further stated that few days after the marriage, the respondent went to her parents and that the appellant had thereafter gone to Pune to fetch her. However, the respondent’s parents did not send her with the appellant. He further stated that he had personally gone to Pune and met the parents of the respondent on 3-4 occasions. On one occasion, he was accompanied by Hastimal Lodha. On the third occasion, he was accompanied by Kapurchand Khater and Popatlal Bamb and on the fourth occasion, he was accompanied by Lalchand Fulchand Fulpagar. On each of the occasions, he requested Nihalchand, the father of the respondent, to send her to the appellant for cohabitation. However, the respondent’s father stated that Bhadgaon was a village and he did not wish to send her in the village. Nihalchand further stated that the climate of Bhadgaon was not suitable to his daughter. The respondent also repeated the same things.
8. Dilip Kumar Nemichand Bamb (P.W.3), the younger brother of the appellant, has stated that 7-8 days prior to the Diwali of 1985, at the request of the appellant, he had gone to Pune to fetch the respondent. However, the respondent refused to go to Bhadgaon for cohabitation with the appellant. Nemichand Kunkulol (P.W.4) is an independent witness. He has stated that he knows Nihalchand Khater, the father of the respondent. He has further stated that he had once gone to his cousin brother Chandanmal Kankariya at Dhule. At that time, Nemichand Nahar, a relative of the appellant, had come to Chandanmal by chance. During the conversation, Nemichand inquired whether he knew Nihalchand Khater of Pune. On learning that P.W.4 knew that Nihalchand Khater, he asked whether he could mediate and request the respondent’s father to send his daughter to cohabit with the appellant. Accordingly, he went to the house of Nihalchand Khater for mediation. At that time, Nihalchand told him that if the appellant was willing to leave Bhadgaon and come to stay at Pune, he can help him in setting up a shop and send his daughter for cohabitation. However, if the appellant was not willing to come to Pune, he was not willing to send his daughter to Bhadgaon for cohabitation with the appellant. The appellant has also produced on record a letter dated 16th January 1986 written by P.W.4 to Nemichand Nahar. In that letter, he has stated that as per his request he had gone to Nihalchand Khater and also met the respondent and tried to convince her. However, the respondent’s father told him that he was not willing to send the respondent to Bhadgaon. He was, however, willing to arrange for accommodation of the appellant at Chinchwad, Pune, and also set up a shop for him, but he was not willing to send his daughter to Bhadgaon. In the said letter, he also stated that the respondent was also not willing to go to Bhadgaon. There is thus contemporaneous record of a letter written by Nemichand Kunkulol about what he has stated on oath before the court.
9. We have perused the cross examination of Nemichand Kunkulol and we do not find anything to disbelieve what he has stated in the examination in chief. He is an independent witness and we see no reason to disbelieve his testimony. The case of the appellant that the respondent was not willing to come to Bhadgaon and stay with him is corroborated by the letters of the respondent’s father produced on record. In July 1985, the father of the respondent had requested that she be sent to him for Adhik Mas (a month according to the Hindu Calendar in which customarily married daughter goes to her parents). He had also written letter sending his son. On 20th August 1985, the respondent’s father wrote a letter to the father of the appellant. In that letter, he has stated that the appellant’s father had indicated that he would fetch the respondent after coconut pournima, but the respondent was ill and so she would not be able to go to her matrimonial home. On 14th September 1985, the respondent’s father wrote another letter to the appellant’s father acknowledging the receipt of the letter written by the appellant’s father and stated that the respondent was still not well and he would inform the appellant’s father after the respondent recovered from her illness. On 9th October 1985, the respondent’s father again wrote another letter to the appellant’s father acknowledging the receipt of his letter and stated that the respondent was still not well and she would be sent only after her health improved. On 28th October 1985, the respondent’s father again wrote a letter to the appellant’s father acknowledging his next letter and further reiterated that the respondent’s health was not good. He further wrote that the climate at Bhadgaon was not suitable for the respondent. All these letters show that the appellant and/or his father were requesting the respondent’s father to send the respondent to live with the appellant in the matrimonial home at Bhadgaon, but the respondent’s father continuously pleaded illness of the respondent and the respondent was avoiding to go to stay at Bhadgaon. Mention in the letters that the weather at Bhadgaon was not suitable for the respondent corroborates the oral testimony of P.W.4 – Nemichand that the respondent’s father had told him that the respondent was not willing to go to Bhadgaon, but the respondent’s father was willing even to get a place for the appellant for stay at Chinchwad, Pune,
10. The evidence produced by the appellant leaves no doubt in our mind that the respondent stayed with the appellant only for a couple of months after her marriage in June 1985 and went to her parents at Pune in August 1985 on the occasion of Adhik Mas and thereafter never returned. Several attempts were made by the appellant to bring back the respondent to the matrimonial home. However, under the excuse that she was not well, the respondent did not go to stay with the appellant at Bhadgaon. In fact, the respondent and her parents wanted the appellant to leave Bhadgaon and come to stay at Pune and only then the respondent was willing to cohabit with him.
11. The respondent examined herself as a witness on her behalf. In the first part of the examination in chief, she stated that she was insulted by the appellant’s father stating that her father had not given due respect to them by giving appropriate gifts at the wedding. She further stated that they were demanding money and when she went to her parents’ place in Adhik month, they asked her to bring money from her parents. However, this fact has not been mentioned in the correspondence which ensued between the appellant’s father and the respondent’s father. Letters to the respondent’s father only make a mention of the respondent being ill and unable to go to Bhadgaon. It is nowhere mentioned in the contemporaneous letters that any money or ornaments were demanded by the appellant’s father from the respondent’s father or from the respondent. In the second part of the depositions,the respondent has stated that the appellant was invited by the respondent’s father to come to their home for celebrating Diwali by letter dated 18th October 1987. According to the respondent, the appellant did not come on the occasion of Diwali of 1987 despite this letter. It may be mentioned that by that time the relations between the parties had strained. The respondent left the matrimonial home in August 1985 and did not return for more than 2 years despite several requests. Notices were exchanged between the parties in September 1987. In such circumstances, no fault can be found with the appellant for not responding to the invitation allegedly extended by the letter dated 18th October 1987. It is worthy to note that in the cross examination, the respondent has admitted that the wedding of the sister of the appellant was performed in May 1986 and that the respondent and her father had received the invitation for the said marriage. The appellant had also sent a telegram requesting them to attend the marriage. Despite that, neither the respondent nor her parents nor anybody from her family attended the wedding of the appellant’s sister in May 1986. This indicates that the respondent and her family did not wish to continue the relationship with the appellant and his family. She did not even give any excuse for not attending the wedding of the appellant’s sister. In her examination in chief, the respondent did not refer to the evidence of P.W.4 – Nemichand Kunkulol and his evidence regarding his visit to the respondent’s house and refusal by the respondent’s father and herself to go to the matrimonial home at Bhadgaon. That testimony has gone uncontradicted.
12. R.W.2 – Pandharinath Patil and R.W.3-Sharadkumar Moharir were examined to seek to prove that the appellant had remarried and/or had begotten children from one Kalpana Dudhediya. The father of Kalpana was also examined to prove relationship between the appellant and Kalpana. Though Shantilal Dudhediya did not support the respondent fully, his evidence does indicate that his daughter Kalpana was staying with the appellant and has two children from him. He indirectly admitted that Kalpana had relationship with the appellant since 1989. The respondent did not file a cross appeal or any other proceedings to seek any relief against the appellant and Kalpana. She did not file a petition for restoration of conjugal rights during all these years. It is worthy to note that the marriage between the appellant and the respondent took place on 4th June 1985 and she left the matrimonial home in August 1985 and never returned. The period of 2 years of desertion without just and sufficient cause was completed in August 1987. If the appellant after waiting for 2 years developed a relationship with Kalpana, it cannot be said that the appellant was taking advantage of his own wrong. He waited for the respondent for more than 3 years, but the respondent did not go to stay in the matrimonial home. The respondent, at the most, could plead justification for not joining the appellant after 1989 when the respondent developed relationship with Kalpana but she can have no justification for not joining the matrimonial home between 1985 and 1989. The statutory period of desertion of 2 years was completed in 1987 and, in our view, on the date of filing of the petition in January 1988, there was no justification for the respondent not to join the appellant in his matrimonial home.
13. In our view, therefore, the Family Court erred in coming to the conclusion that the appellant had not proved desertion by the respondent for a statutory period of 2 years immediately preceding the presentation of the petition. We accordingly reverse the said finding and hold that the respondent had deserted the appellant for a period of more than 2 years immediately preceding the filing of the petition without just and sufficient cause. Though the appellant succeeds before us on the ground of cruelty,he can not escape his liability to pay permanent alimony, more so when he, during the intervening period, begot two children from another lady. He has accepted to pay a lumpsum amount of Rs.2,00,000/-towards permanent alimony. We accept the same as a fair and reasonable amount in the peculiar facts of this case.
14. For the reasons stated above, the appeal succeeds. The judgment and order passed by the Family Court is set aside. The appellant is entitled to a decree of divorce and accordingly a decree of divorce is granted under section 13(1)(ib) of the Hindu Marriage Act, 1955 on the ground of desertion of the appellant by the respondent. The appellant shall pay an amount of Rs.2,00,000/- (Two Lakhs only) towards permanent alimony to the respondent within 2 months from today.
15. In the facts and circumstances of the case, the parties shall bear their own costs.
16. The Registry to draw a decree on the above terms.

(D.G. KARNIK, J.)  (B.H. MARLAPALLE, J.)

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