Neeta Kirit Desai vs Bino Samuel George
2002 Latest Caselaw 980 Bom

JUDGMENT

V.C. Daga, J.

1. This appeal is directed against the judgment and decree dated 18-10-2000 passed by the Family Court No. 4, Pune, in P.A. No. 511 of 1998, dismissing the petition filed by appellant-wife praying for divorce in the ground of cruelty.

THE FACTS

The facts in brief are as under.:--

2. The petitioner is Hindu and respondent is a Christian converted to Hindu Religion. Both of them got married on 18-10-1991.

3. It appears that immediately after the marriage sometime in the month of June 1992, matrimonial dispute cropped up amongst the parties to this appeal which resulted in matrimonial litigation being PA No. 295/92 wherein petitioner-wife prayed for decree of annulment of marriage and declaration to that effect under Section 5 read with Sections 1 and 12(1)(c) of the Hindu Marriage Act, 1955. In the said petition following issues were framed and tried and after full trial petitioner-wife suffered adverse findings on all the issues, summary of which is reproduced hereinbelow for ready reference along with conclusions and findings recorded thereon :

POINTS FINDINGS

i. Whether the petitioner proves that her consent for marriage was obtained by practising fraud on her by the respondent ?

No

ii) Whether the petitioner proves that she was forced to sign the marriage registration form in the hotel ?

No

iiA) Whether the petitioner proves that she merely signed the blank forms of marriage registration ceremony ?

No

iii) Whether the respondent proves that he was converted to Hindu religion on 10-7-1991?

Yes

iv) Whether the respondent proves that his marriage with petitioner was performed according to Hindu religion and as per their custom in Hotel Tourist on 18th October 1991?

Yes

v) Whether the alleged marriage is legal and valid?

Yes

vi) Whether the petitioner is entitled to decree for injunction as prayed for?

No

viA) Is the petitioner entitled to a decree of nullity regarding the alleged marriage?

No

4. On the aforesaid findings, the petition filed by the petitioner-wife came to be dismissed by judgment and decree dated 24-12-1994. The said judgment and decree was subject-matter of challenge in the Family Court Appeal No. 19 of 1995 before this Court. The said Family Court Appeal, ultimately came to be dismissed by order dated 24th June, 1997. The aforesaid judgment and order dated 24th June, 1997 was also challenged before the Apex Court in SLP (C) No. 2741 of 1998; which also came to be dismissed by order dated 2nd May, 2000. Thus, it would be clear that the findings recorded in the earlier round of litigation have become final and conclusive; whereunder the marriage between the parties was held to be legal and valid.

5. Having lost the above round of litigation right up to the Apex Court, second litigation came to be instituted at the instance of the Appellant-wife under Section 13(1)(a) of the Hindu Marriage Act, seeking decree of divorce on the ground that respondent-husband was demanding Rs. 25 lacs to extend his consent for dissolving marriage by consent of parties and that he defamed her in the society by spreading damaging rumours about her which made her difficult to live in the society. In other words, the present petition for divorce was grounded on the allegations of cruelty based on two counts; alleged illegal demand of Rs. 25 lacs and spreading damaging rumours in the society, making it difficult for her to stay in the society.

6. A bare look at the pleadings of the divorce petition would show that no material facts with material particulars in support of the allegations made are to be found in the petition filed before the Family Court. The pleadings are absolutely vague and general. No details of the alleged threats alleged to have been given on phone were disclosed in the petition. How situation became dangerous is not to be found in the petition. What were the derogatory rumours which spread by respondent have also not been disclosed in the petition.

7. On being noticed, respondent appeared and filed his written statement. He denied all the allegations as absolutely false and incorrect. With the aforesaid pleadings on the record the Family Court framed relevant issues and permitted the parties to lead their evidence in support of their respective contentions.

8. The petitioner (wife) herself entered the witness box and examined two other witnesses in support of her case. So far as respondent is concerned, he himself entered the witness box and deposed denying adverse allegations in consonance with the stand taken by him in his written statement.

9. If one turns to the evidence on record, the petitioner deposed that demand of Rs. 20 lacs was made by the respondent through S/Shri Balasaheb Hegde and Shamrao Kakde to extend his consent for mutual divorce. The said Balasaheb Hegde and Shamrao Kakde were also examined on oath. Balasaheb Hegde is known as Malhari Balkrishna Hegde. He deposed on oath but did not support the story sought to be made out by the petitioner. So first witness examined by her in support of her case did not prove the allegations made by the petitioner. The second witness Shamrao Kakde who was examined on oath deposed that he himself had suggested the respondent to take money which he had incurred in the marriage and settle the matter. He then went on to depose that Rs. 15 to 20 lacs were demanded by the respondent in one of the meetings. He was cross-examined by the respondent. In cross-examination he deposed that in the first meeting which took place during the pendency of the earlier litigation such demand was made but he did not tell the petitioner that he was willing to depose on her behalf or ready to file his affidavit regarding alleged demand. Thus looking to his evidence we do not think that this witness Shri Shamrao Kakde, is of any assistance to the petitioner on the question of alleged demand by the respondent. So far as second allegation with regard to spreading foul rumours in the society is concerned, there is absolutely no evidence brought on record on behalf of the petitioner-wife.

10. The respondent in rebuttal led evidence and examined himself. He deposed on oath and stated that he never demanded Rs. 20 lacs. He also deposed that he never spread any rumours much less foul rumours against the petitioner in the society. He was cross-examined at length. He stood well in the cross-examination.

11. With the aforesaid evidence on record, the trial Court after hearing parties came to the conclusion that the appellant (wife) has failed to prove that any demand was made by the respondent-husband or that he has committed any act by which it could he said he has created any problem for the petitioner-wife to live in the society. The case sought to be made out by the petitioner (wife) was disbelieved by the Family Court. With the aforesaid findings the trial Court dismissed the petition for divorce filed by the petitioner (wife). The trial Court refused to grant decree of divorce. The aforesaid judgment and decree is a subject-matter of challenge in the present appeal.

The Arguments:

12. Shri Deshpande, learned Counsel appearing for the appellant (wife) took us through the evidence on record and tried to make out a case sought to be made out before the Family Court but found it difficult to take his submissions to the logical end. The learned Counsel faced with this situation, made a last attempt by contending that marriage is dead for all practical purposes; having lasted for 7 days only and since then parties are living separately, hence this Court should pass the decree of divorce in exercise of appellate powers of this Court. He relied upon the judgment of the Apex Court in the case of Chandrakala Trivedi v. Dr. S.P. Trivedi, in support of his submission.

13. Per contra, learned Counsel for the respondent-husband Shri V.G. Peshave contended that there is absolutely no material on record to suggest that the marriage is dead for all practical purposes. The husband is very much interested in his wife, the petitioner is very much interested in living with him. He still loves her. He is ready to undertake to keep her with all love and affection. He further pointed out that because of the instigation of the parents of the petitioner (wife) all these unpleasant litigations have taken place, otherwise both of them were in love for a long time and after knowing each other they got married. He further submitted that looking to the young age of the parties, it cannot be said that marriage is dead. The possibility of reconciliation is always there, may be after some time, if opportunity is given to them. The learned Counsel for the respondent, independent of this submission, also supported each and every finding recorded by the Court below on the basis of evidence on record. He thus prayed for dismissal of the appeal.

CONSIDERATION AND FINDINGS :

14. Having heard rival contentions and having examined the evidence on record, we fully concur with the findings recorded by the Family Court. There is absolutely no material on record to take a contrary view. The evidence on record led by wife does not inspire judicial confidence. The view taken by the trial Court was the only possible view. No other view on the material available on record is possible. The Apex Court in the case of Madhusudandas v. Narayanibai, , held as under :

".............in an appeal against a trial Court decree, when the appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. In this connection, a reference may usefully be made to W.C. Macdonald v. Fred Latimer, AIR 1929 PC 15, 18, where the Privy Council laid down that when there is a direct conflict between the oral evidence of the parties, and there is no documentary evidence that clearly affirms one view or contradicts the other, and there is no sufficient balance of improbability to displace the trial Court's findings as to the truth of the oral evidence, the appellate Court can interfere only on very clear proof of mistake by the trial Court."

In view of the above law laid down by the Apex Court, we do not propose to interfere with the findings of the trial Court. On the contrary we endorse the same.

15. So far as last submission advanced by Shri Deshpande is concerned, we do not think that the marriage between the parties is dead and that this could be said to be a fit case for dissolving marriage on this ground. As a matter of fact, looking to the age of the parties to the appeal, we feel that given a chance both of them can come together. Their marriage was a culmination of love affair which went on for quite a long time before their marriage. It appears that untenable litigation was at the instance of the parents of the petitioner (wife). The petitioner (wife) is a medical practitioner must be dealing with patients with all sympathy at her command, can take sympathetic attitude towards her husband and can always try to reconcile. At any rate, it is very difficult for us to hold that the marriage is dead for all practical purposes. We are of the considered view that prima facie, frivolous and vexatious litigation Instituted and fought under the pressure of some family members cannot be used as a ground to contend that the marriage has irretrievably broken down and the marriage is, for all practical purposes, dead. Acceptance of such argument will mean, that in all matters wherever matrimonial litigation went on for five to ten years, the divorce must follow. In Indian Courts any litigation howsoever; minor it may be, it takes years for decision in the original Court, then appeals take their own share of time; under these circumstances mere lengthy period of litigation cannot be pressed into service to contend that marriage is dead for all practical purposes. While examining such argument and strength thereof, the Courts must examine the nature of rival allegations made, the attitude of parties, the evidence led by the parties including their strength and to what extent such allegations and counter-allegations have resulted in spoiling the mutual relations between the warring spouses. The lapse of time in litigation alone cannot be a ground to hold that the marriage is dead.

16. The foundation of the case in hand is based on concocted and false allegations. Not a single allegation made by wife is worthy of investigation. Had the husband remained ex parte even then, in our opinion, she could not have succeeded in her petition. In such frivolous case can the years spend in litigation be allowed to be used to claim decree for divorce; on the contention that looking to the span of litigation, the marriage is dead in absence of any potent ground for divorce having been made out under the provisions of Hindu Marriage Act. In our considered opinion, the marriage cannot be dissolved on this solitary count. The reliance on the Apex Court judgment in the case of Chandrakala Trivedi (supra) in our opinion, is misplaced.

17. In the circumstances, we do not see any reason to interfere with the findings recorded by the Family Court. Appeal, is thus dismissed for the reasons recorded hereinabove as also for the reasons recorded by the Family Court with no order as to costs.