Kishorebhai Naginbhai Patel vs Leelaben W/O Kishorebhai ...

                                                                                  NEUTRAL CITATION




     C/SCA/18623/2011                             JUDGMENT DATED: 25/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 18623 of 2011


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                     KISHOREBHAI NAGINBHAI PATEL
                                Versus
               LEELABEN W/O KISHOREBHAI NAGINBHAI PATEL
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Appearance:
MR MANAN A SHAH(5412) for the Petitioner(s) No. 1
MR JR SHAH(762) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                              Date : 25/08/2023

                             ORAL JUDGMENT

This petition is directed against the judgment and order dated 11/08/2011 passed in Regular Civil Appeal No.18 of 2008 by the learned Additional District Judge, Surat at Vyara confirming the judgment and decree rendered by the learned trial Court in Civil Suit No.17 of 2001 on 16/05/2008 Page 1 of 10 Downloaded on : Sun Sep 17 02:32:07 IST 2023 NEUTRAL CITATION C/SCA/18623/2011 JUDGMENT DATED: 25/08/2023 undefined dismissing the suit seeking dissolution of his marriage filed un.

2. The factual matrix of the case are as under:

2.1 On 01/06/1989, both the parties got married to each other as per their rituals and rites and they both belong to schedule tribes. Both of them serving as teacher and now they have retired from the service. It is an undisputed fact that the parties are governed by the principle of Baroda Hindu Nibandh, 1937 (herein after referred to as the Nibandh).

2.2 After the marriage both of them stayed together for a short period at Village Gagadiya. It was asserted by the petitioner that his wife told him that she married to him against her desire and only upon the pressure of the family. In the initial period of the marriage, wife was used to come and stay with the husband during the holidays; but according to the averments made in the suit, gradually she curtailed the period and then stopped coming to matrimonial home. Pleadings further stated that she did not bother to get the transfer with her husband at the same station. The child is delivered out of the said wedlock yet she did not come to join the husband in the matrimonial home. Importantly, it is stated that husband and wife are staying separately since 1991 and wife has withdrawn herself from the matrimonial home without reasonable excuse and therefore there is no chance of restitution of conjugal rights between the parties. The above pleadings has been made by way of filing a Civil Suit No.17 of 2001 by the petitioner seeking relief in the mode of dissolution of marriage.

NEUTRAL CITATION C/SCA/18623/2011 JUDGMENT DATED: 25/08/2023 undefined 2.3 The learned trial Court framed the issue at Exhibit-18; though in Gujarati language; but is translated as follows:

"1. Whether the plaintiff proves that the defendant has without any reasonable cause deserted him since 1990?

2. Whether the plaintiff proves that since the defendant has failed to cohabit any conjugal rights with the plaintiff and therefore is not able to live the marriage life with the plaintiff now?

3. Whether the plaintiff proves that provisions of the Baroda Hindu Nibandh Act, 1937 is applicable to the facts of the case of the plaintiff?

4. Whether the plaintiff proves that he is entitled to get the relief as prayed for in the suit?

5. What order and decree?"

2.4 After framing of the issues, both the parties led evidence and after appreciating the evidence the learned trial Court held the issue Nos.1, 2 and 4 in negative while holding issue No.3 in affirmative and thereby dismissed the suit of the plaintiff.

2.5 Unsuccessfully, challenge is made to dismissal of the suit by filing RCA No.16 of 2008 before the learned first appellate Court and this has given rise the present petition.

3. Heard learned Advocates appearing for both the parties.

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4. Learned Advocate for the petitioner while relying upon the decision in the case of Shri Rakesh Raman vs. Smt. Kavita [2023 LiveLaw (SC) 353] would submit that if marital relationship between the parties are not subsisting for more than decades or over the many years and marriage is irretrievable breakdown it can be read as a cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act, 1955 (for short the Act). He would further submit that in the present case the parties are living apart since 1990 and settled in their life since then. There is no chance of reconciliation between them. He would further submit that both the parties are living in the later part of their life and both of them have retired from their service and now nothing remains between them which can be said to be a part of marriage relationship. He would further submit that keeping the marriage alive is nothing but a wooden aspect. He would further submit that since the marriage which is broken down irretrievable between the parties by itself spells that cruelty has been meted to both the parties as they could not live together for such a long period of life. Upon such submissions, more particularly, on the submission that there is a long separation and barely exists the chance of cohabitation, there is no meaning to keep the parties in a bonding call marriage and therefore he would submit to allow the present petition by quashing and setting aside the impugned order.

5. On the other hand, learned Advocate for the respondent would submit that in the case of Shri Rakesh Raman (supra), the Hon'ble Apex court in exercise of power under Article 142 of the Constitution has dissolved the marriage on the ground of Page 4 of 10 Downloaded on : Sun Sep 17 02:32:07 IST 2023 NEUTRAL CITATION C/SCA/18623/2011 JUDGMENT DATED: 25/08/2023 undefined irretrievable breakdown which is otherwise does not exist under Section 13(1)(ia) of the Act. He would submit that the learned trial court has categorically noted that respondent was ever ready and willing to cohabitate with the petitioner and to carry the relationship viz., marriage in its true perspective. He would further submit that however the petitioner who is at fault and did not carry the respondent-wife with him and deserted. He would further submit that the petitioner upon his fault cannot submit that the marriage is irretrievably broken down. Upon fault, petitioner cannot press into service that petitioner now living separately since long amounts to irretrievably broken down of marriage and therefore he would submit to dismiss the petition. He would further submit that the learned trial Court has categorically and comprehensively decided the issue raised by the petitioner and in view of that this Court should not exercise its power under Article 227 of the Constitution of India which is very sparingly available and to dismiss the petition.

6. Having heard the learned Advocates appearing for the respective parties, at the outset, the findings of the trial Court, more particularly, on internal page nos.25 and 26 are required to be referred to which reads thus:

"....Further appreciating this point the plaintiff in his evidence Exh.24, he specifically states that he is not ready and willing to call her back even if she is ready for that, the plaintiff has given explanation for that being living separately for more then 16 years, here it is required to consider that the plaintiff side has relied upon the case reported in 2006-SCC-4-558, but the same refers to the Hindu Marriage Act, when this case relates to special enactment I.e.

Nibandh, hence can not be made applicable, despite the above fact if Page 5 of 10 Downloaded on : Sun Sep 17 02:32:07 IST 2023 NEUTRAL CITATION C/SCA/18623/2011 JUDGMENT DATED: 25/08/2023 undefined we consider for shake of argument that in light of admitted fact that the parties to the present suit have stopped living together since 1991, then also the ration laid down in this case shows that, mere there are allegation and counter allegation, a decree of divorce can not follow. There must be some extra ordinary features to warrent grant of divorce on the basis of pleading and other admitted material without a full trial, irretrievable breakdown of the marriage is not a ground by itself, but the plaintiff has to establish by evidence that the grounds made out in the pleading are proved, herein present case the evidence on record shows that the defendant before filing this suit initiated the proceedings for restitution of conjugal rights, and in the same way the defendant has initiated the proceedings U/s 125 of the Code of Criminal Procedure against the plaintiff for obtaining the maintenance allowance for Minor Animesh, this fact in the light of the other evidence on record shows that the parties have been living separately since 1990 but it can not be said that it is the defendant on whose part this has happened, the evidence on record clearly establishes that the since the first meeting of Panchas called upon for conciliation on December 1991 the defendant was present in it, but the plaintiff who was absent which the second meeting on 22-12- 1991 even after entering into agreement with the defendant the plaintiff does not appear to have honestly and heartily efforted to call her back. On the other hand the evidence of the plaintiff and the defendant in the light of Exh.45, 46 leads to believe that even after filing of this suit the defendant was ready and willing to live with the plaintiff but it is the plaintiff who does not want the defendant to come and live with him, hence the evidence on record even specifically proves that since 1990 the parties; have been living separately, but it does not necessarily mean that this has happened due to withdrawing form the society on part of the defendant, but the evidence leads to come to a conclusion that even though the parties are living separately since long period it is due to the plaintiff who the evidence on record shows that that, prevented the defendant from living with him and allowing him to enloy conjugal rights, hence as Page 6 of 10 Downloaded on : Sun Sep 17 02:32:07 IST 2023 NEUTRAL CITATION C/SCA/18623/2011 JUDGMENT DATED: 25/08/2023 undefined stated above, the evidence clearly establishes that the plaintiff has not efforted to enjoy the conjugal rights with the defendant not has he attempted to allow her to live with him. On the contrary it appears that the defendant has offenly efforted to live with plaintiff but the efforts on the part of plaintiff prevented her hence despite the fact that they are living separately since 1990 it can not be said that the defendant has deserted the plaintiff without any reasonable excuse, but the evidence on record shows that the defendant has sufficient cause to live separately which does not entitle the plaintiff for the relief prayed in this suit, not the plaintiff has succeeded in making out the case as contained in the above provision of the nibandh. Hence when the plaintiff has failed to prove that without any reasonable excuse the defendant has withdrawn from his society for more then three years, and since 1990 nor can it be said that the defendant has not allowed the plaintiff to enjoy the conjugal rights, Therefore the plaintiff is not entitled for the reliefs prayed in this suit. Thus in the light of above discussion the issue No.1-2- 4 are accordingly answered in negative and with regard to issue No.5 following final order is passed. "

(sic)

7. Perusal of the impugned order indicates that the petitioner has filed the suit for dissolution of the marriage under the provisions of the Baroda Hindu Nibandh, 1937. The main ground for the dissolution of the marriage under the said Act is living separately; without reasons. In context of this provision if one looks at the evidence recorded before the learned trial Court, it appears that the petitioner has filed the suit under the provisions of Baroda Hindu Nibandh, 1937. It also appears that the present petitioner fails in restituting the marital relationship between the parties and to reconcile it. It also appears that the respondent - lady was ready and willing to cohabit alongwith the petitioner and to continue the marriage. Living separately to Page 7 of 10 Downloaded on : Sun Sep 17 02:32:07 IST 2023 NEUTRAL CITATION C/SCA/18623/2011 JUDGMENT DATED: 25/08/2023 undefined pursue their own carrier cannot be a ground considered to be irretrievably broken down of the marriage. Both the party were knowing that they were serving as a teacher even prior to their marriage took place and therefore there are blink chance that they could live together continuously to consume marriage as it would be consumed by the ordinary couple.

8. On perusal of the provisions of Baroda Hindu Nibandh, 1937 as noted by the learned trial Court in its order, it appears that the husband has to prove that he was ready and willing to keep her wife within the matrimonial bound and if the wife is not ready and willing to reside alongwith husband in matrimonial bound; in that given circumstances the dissolution of marriage can be made out; but as noted herein above by the learned trial Court there was a complete different situation where the wife was ready and willing to remain with the matrimonial bound but not the husband. The husband in order to prove that he is ready and willing to keep the wife in matrimonial bound can show his readiness by filing the petition for restitution of conjugal rights.

9. It is the case here that where the husband has directly filed the case for dissolution of marriage. Learned Advocate for the petitioner would submit that even in a suit for dissolution of the marriage, the husband can lead the evidence to prove that he was ready and willing to keep the wife and wife was not ready and willing to cohabit for three years. Having perused the impugned order, it transpires that no such evidence was led by the petitioner before the learned trial Court.

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10. It was also sought to be argued that living separately for many years together by the husband and wife itself is a cruelty and that render the fag end of the marriage and as such it should be discontinued by dissolution of the marriage. The cruelty may be mental or physical. If it is a physical, it is question of fact and degree and if it is a mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse (Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511) . Living separately to pursue the service by the spouse by itself is not a cruelty. It cannot go unnoticed that many couples are not living under the one roof on the ground that they are serving in the different districts. That aspect itself therefore cannot be considered as cruelty. The said submission is therefore negatived.

11. It is trite to note that Baroda Hindu Nibandh, 1937 does not give the irretrievably broken down of a marriage as a ground for dissolution of marriage. In that circumstances, bringing the decision under Section 13(1)(ia) of the Act would not help the petitioner. Even otherwise perusing paragraph 13 and 14 of the Shri Rakesh Raman (supra), it seems that the Hon'ble Apex Court in exercise of power under Article 142 of the Constitution has thought it fit to dissolve the marriage on the ground of irretrievably broken down as a ground which is otherwise not exist in Section 13(1)(ia) of the Act.

12. In nutshell, the petitioner has failed to make out the case for exercise of limited jurisdiction under Article 227 of the Constitution of India which is to be exercised sparingly.

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13. In the result, the petition fails and is dismissed. Rule is discharged.

(J. C. DOSHI,J) sompura Page 10 of 10 Downloaded on : Sun Sep 17 02:32:07 IST 2023