Bombay High Court
Shri Raymond Lancy Rodrigues vs Smt. Yogita W/O Raymond Rodrigues on 3 April, 2017
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FAMILY COURT APPEAL NO.287/2014
APPELLANT: Shri Raymond Lancy Rodrigues
Org. Petitioner Aged about 63 years, Occupation - Retired,
R/o Shirthadi Main Road, P.O. Shirthadi,
District - Mangalore, Taluka Karkal.
...VERSUS...
RESPONDENT : Smt. Yogita w/o Raymond Rodrigues,
Org. Respondent Aged about 30 years, R/o C/o Mrs. Alexandar
Vincent, Yerkheda, Kamptee, Tahsil Kamptee,
District Nagpur.
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Shri Amit Khare, Advocate for appellant
Shri N.M. Kolhe, Advocate for respondent
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CORAM : SMT. VASANTI A NAIK, AND
MRS. SWAPNA JOSHI, JJ.
DATE : 03.04.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
By this family court appeal, the appellant-husband
challenges the judgment of the learned District Judge-7, Nagpur, dated
07.09.2013 dismissing a petition filed by the appellant under Section
10(1)(ix) and (x) of the Divorce Act, 1869.
2. The appellant-husband and the respondent-wife were
married at Sadar, Nagpur as per the Christian custom on 01.10.2003. The
appellant was originally from Shirthadi, Mangalore, in the State of
Karnataka and the respondent was a resident of Nagpur. The parties
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resided together for some time at Nagpur after the marriage. A son
named Marshall was born from the wedlock. At the relevant time, the
appellant was serving with the government in Nagpur and after his
retirement on 31.08.2008, the appellant started residing at Shirthadi.
According to the appellant, the respondent's behaviour was objectionable
since the inception of the marriage. It is pleaded by the appellant in the
petition filed by him for a decree of divorce on the ground of cruelty and
desertion that the respondent did not show any love and affection
towards him. It is pleaded that the respondent was in the habit of
developing illicit relationship with strangers despite strong objection of
the appellant. It is pleaded that the respondent used to frequently quarrel
with the appellant and also assault him on some occasions. It is pleaded
that the respondent was in the habit of going to her parental home
unnecessarily without the permission of the appellant. It is pleaded that
in October-2005, the respondent went to her parental home for the
delivery of the child and did not return to the matrimonial home. It is
pleaded that the parties were living separately for more than two years
when the petition was filed in the month of April-2009 and the appellant
was entitled to a decree of divorce on the ground of desertion. It was
pleaded that the respondent would abuse the appellant in filthy language
and sometimes assault the appellant with iron rod and stick. It is pleaded
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that when the appellant was asleep in the bedroom, the respondent used
to bring the cooking gas cylinder in the bedroom with a view to injure the
life of the appellant. It is pleaded that sometimes the respondent used to
try to inflict serious injuries on the appellant with the knife. It is pleaded
that the acts on the part of the respondent resulted in the deterioration of
the health of the appellant and he suffered from heart problem. It is
pleaded that the marriage between the parties is irretrievably broken
down and the appellant is, therefore, entitled to a decree of divorce on
the ground of cruelty and desertion.
3. The respondent filed the written statement and denied the
claim of the appellant. Every adverse allegation that was made by the
appellant against the respondent was denied by the respondent. It is
pleaded by the respondent in the specific pleadings that the marriage
between the parties was settled by the consent of the parties and at the
relevant time, the appellant was working as a professor in the Hislop
college. It is pleaded that the appellant was addicted to liquor and under
the influence of liquor, he used to compare the respondent with his two
former wives and used to abuse and insult her. It is pleaded that the
appellant used to fight with the respondent on trivial issues and used to
beat her in the fit of anger. It is pleaded that in the presence of public,
the appellant used to insult her by saying that she cannot give birth to a
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child. It is pleaded that when the uncle of the respondent expired in
April-2005, the appellant quarrelled with the respondent and objected to
her visit to her uncle's place. It is pleaded that the appellant used to
abuse the respondent in filthy language in the presence of his students
and used to say that the respondent was his daughter and not his wife. It
is pleaded that the appellant sent the respondent to her parental home
when she was in the seventh month of the pregnancy and never came to
take back the respondent to the matrimonial home after the child was
delivered. It is pleaded that after the maternal aunt of the respondent
dropped her to the matrimonial home, the appellant used to leave the
matrimonial home and remain out of the house for four to five days and
also granted leave to his servants during the days when he was out of the
house. It is pleaded that the appellant used to misbehave with the
maidservant whom he had engaged for performing his body massage. It
is pleaded that after the retirement of the appellant, the parties started
residing in Kashi Patna village of Mangalore. It is pleaded that the
appellant used to keep the respondent and the son alone in the house
which was located in a forest. It is pleaded that the appellant resided
with the respondent till the month of March-2009 and in April-2009, he
dropped the respondent to the railway station to reach her to Nagpur. It
is pleaded that since the respondent had neither treated the appellant
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with cruelty nor had the parties separated for two years, a decree of
divorce should not be granted in favour of the appellant.
4. On the aforesaid pleadings of the parties, the learned
District Judge-7, Nagpur framed the issues. The appellant examined
himself and also examined Vijay Gurwa, who was working as a domestic
worker in the farm of the appellant in Karnataka. The respondent
examined herself and closed the evidence on her side. On an appreciation
of the evidence of the parties, the learned District Judge dismissed the
petition filed by the appellant for a decree of divorce. The learned District
Judge held that the appellant was unsuccessful in proving that the
respondent had treated the appellant with cruelty. The learned District
Judge held that the parties had not separated for a period of two years
before the institution of the proceedings by the husband for a decree of
divorce on the ground of desertion and, hence, the appellant was not
entitled to a decree under Section 10(1)(ix) of the Divorce Act.
5. Shri Khare, the learned counsel for the appellant, submitted
that the learned District Judge was not justified in refusing to grant a
decree of divorce in favour of the appellant. It is submitted that the
parties had lastly resided together in the year 2007 and the learned
District Judge erroneously held that the parties had not resided separately
for a period of two years preceding the date of filing of the petition. It is
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stated that the admissions of the respondent in her cross-examination are
not considered by the learned District Judge in the right perspective while
refusing to grant the decree of divorce on the ground of desertion. It is
submitted that the marriage between the parties is irretrievably broken
down and though there was an attempt in the year 2011 to consider
whether there was a possibility of a settlement between the parties and
though the parties started residing at Mangalore in different houses which
were at a distance of four kilometers from each other, the said attempt
did not materialize. It is submitted that since the marriage between the
parties is irretrievably broken down, it would be necessary to dissolve the
marriage by a decree of divorce. It is submitted that the appellant and his
witness Vijay Gurwa have proved that the respondent had maintained
illicit relationship with Mr.Ranganna. It is submitted that in the
circumstances of the case, this Court may grant a decree of divorce in
favour of the appellant.
6. Shri Kolhe, the learned counsel for the respondent has
supported the judgment passed by the learned District Judge. It is
submitted that the learned District Judge has rightly held that a decree of
divorce could not have been granted on the ground of desertion as the
parties had resided together in the year 2008 and 2009 and the petition
was filed by the appellant in the State of Karnataka in April-2009 and the
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same was subsequently transferred to Nagpur and registered as such, in
the year 2010. It is submitted that since the parties had not separated for
a period of two years before the filing of the petition, a decree of divorce
was rightly refused on the ground of desertion. It is submitted that the
learned District Judge has rightly held that the respondent had not treated
the appellant with cruelty. It is stated that the evidence tendered by the
appellant in regard to the illicit relationship of the respondent with
Mr.Ranganna is extremely vague and unsatisfactory and the learned
District Judge has, therefore, rightly rejected the same. It is submitted
that the allegations of the appellant about the non-performance of the
marital duties by the respondent are also vague and general and the
learned District Judge has rightly held that the appellant had failed to
prove his case in that regard. It is submitted that there was no evidence
to prove that the respondent had subjected the appellant with cruelty and
the petition filed by the appellant was, therefore, rightly dismissed.
7. On hearing the learned counsel for the parties and on a
perusal of the Record & Proceedings, it appears that the following points
arise for determination in this family Court appeal.
(I) Whether the appellant proved that the
respondent had treated him with cruelty?
(II) Whether the appellant proved that the
respondent had deserted him?
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(III) Whether the appellant is entitled to a
decree of divorce under Section 10(1) (ix) and (x) of the
Divorce Act?
(IV) What order?
8. To answer the aforesaid points for determination, it would
be necessary to consider the pleadings of the parties and the evidence
tendered by them. We have narrated the pleadings of the parties in the
earlier part of the judgment. The appellant examined himself and
reiterated the facts stated by him in his petition, in his examination-in-
chief. It is stated by the appellant in his evidence that the parties were
residing separately for a period of two years before the institution of the
petition. It is pleaded that the respondent did not have just and
reasonable excuse for residing away from him. It is stated by the appellant
that the wife had failed to perform the marital duties and obligations. It is
stated that the respondent used to quarrel with him and also assault him.
It is stated that the respondent always visited her parents despite the
objection of the appellant. It is stated that the respondent used to assault
the appellant with a rod or a stick. It is stated that the respondent used to
abuse him in filthy language and some times used to bring the cooking
gas cylinder in the bedroom so as to cause injury to his life and limb. It is
stated that the respondent some times tried to inflict injury on the body of
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the appellant with the help of the knife. The appellant stated that the
marriage between the parties had irretrievably broken down and a decree
of divorce may be passed in his favour. The appellant was cross-examined
on behalf of the respondent. The appellant admitted in his cross-
examination that he had retired from service on 31.8.2008 and had
started residing at Mangalore with the respondent. This admission on the
part of the appellant falsifies his case that the respondent had deserted
him for a period of two years before the filing of the petition in April,
2009. The appellant had admitted that the respondent and his son went
to Nagpur from Karnataka in the month of April, 2009. It is admitted by
the appellant that during the pendency of the proceedings, the deed of
settlement was executed between the parties and the parties were
residing in Karnataka State, in different houses which were 4 kilometers
away from each other. The appellant admitted that the respondent was
his third wife and the marriage between him and his two former wives
was dissolved by a decree of divorce. The appellant admitted that when
the respondent's brother came to Mangalore, the appellant had lodged a
report in respect of theft against the respondent's brother in the police
station. The appellant denied the suggestion that the respondent did not
have habit of developing relations with the strangers. The appellant stated
that he had no desire to live with the respondent even if she desired to
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stay with him.
9. The appellant examined Vijay Gurwa as his witness. The
said witness was cultivating the farm and fields of the appellant. Vijay
stated in his evidence that he learnt from Smt. Bijakre that the
respondent was having an illicit relationship with Mr. Ranganna when she
was staying with the appellant. Vijay stated in his evidence that in 2008,
the respondent took-up quarrel with the appellant and left the
matrimonial house at Shirthadi, Mangalore. Vijay stated in his evidence
that Mr. Ranganna with whom the respondent had an illicit relationship
was a cook in the bar, which was situated near the house of the
respondent. It is stated that once Mr. Ranganna had asked for the mobile
number of the respondent. Vijay was cross-examined on behalf of the
respondent. He admitted in his cross-examination that when the appellant
and the respondent were residing at Shirthadi in Karnataka, Meenu and
Gayatri were doing the household work. He admitted in his cross-
examination that for some time the appellant and the respondent were
residing separately in separate houses. The witness however denied the
suggestion that the respondent did not have an illicit relationship with
Mr. Ranganna.
10. The respondent examined herself and stated that she was
ill-treated by the appellant. It was stated that the appellant used to insult
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her and abuse her as she was not able to conceive for some time. It is
stated that the appellant used to physically and mentally harass the
respondent. It is stated by the respondent in her evidence that after the
marriage, she was not permitted to visit her parental home and the
appellant objected if the respondent had relationship with her parents.
The respondent stated that when the respondent was pregnant, the
appellant used to abuse her in filthy language in the presence of the
students. It is stated that the appellant did not pay a single penny for her
treatment after she conceived. It is stated that the appellant was in the
habit of drinking and in an intoxicated state, he used to abuse the
respondent and also beat her. It is stated that in Karnataka though their
house was located in the midst of the forest, the appellant left the
respondent in the house and remained away for four to five days.
The respondent was cross-examined on behalf of the
appellant. She stated in the cross-examination that the appellant had
levelled false allegation of theft against her brother when he had been to
Mangalore. The respondent stated in her cross-examination that the
appellant was interested only in their son and not the respondent. It is
stated in the cross-examination that the appellant deliberately filed false
complaints against the respondent and her relatives at Mangalore to seek
the transfer of the matter from Nagpur to Mangalore. The respondent
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admitted in her cross-examination that she resided with the appellant in
Mangalore till 2009. She admitted that after 2009 the parties resided
separately. The respondent denied that she was acquainted with Mr.
Ranganna. She stated in her cross-examination that she had not heard his
name and she did not have any illicit relationship with him. The
respondent admitted that there was a great difference of age between the
appellant and the respondent.
11. The learned District Judge appreciated the evidence
tendered by the parties to hold that the appellant had failed to prove that
the parties were residing separately for a period of two years prior to the
institution of the petition. The petition was instituted in Karnataka in
April, 2009 and it was necessary for the appellant to prove that the parties
had separated before April, 2007. The appellant has admitted in his
cross-examination that he retired from service on 31.8.2008 and
thereafter went to Mangalore and started residing with the respondent.
He further admitted in his evidence that the respondent and his son went
to Nagpur in April, 2009. The case of the appellant that the parties had
separated two years before the institution of the proceedings is falsified by
the admissions of the appellant in his cross-examination. The said fact is
further falsified by the evidence of Vijay in his cross-examination. Vijay
had admitted in his cross-examination that Meenu and Gayatri were doing
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the household work in the house in Karnataka when the respondent was
residing with the appellant at Shirthadi. Apart from the evidence of the
respondent, the evidence of the appellant and his witness Vijay, specially
the admissions in their cross-examination have falsified the case of the
appellant that the parties were residing separately for a period of two
years before the institution of the proceedings. The learned District Judge
rightly held that the appellant had failed to prove that the respondent had
deserted the appellant and was residing away from him for a period of
two years before the institution of the proceedings. The parties resided
together till they separated just before the institution of the proceedings
by the appellant in Karnataka. There is no reason to interfere with the
findings recorded by the learned District Judge on the issue of desertion.
12. In respect of the ground of cruelty, the learned District
Judge has rightly held that the appellant had failed to substantiate that
the respondent had treated him with cruelty. The learned District Judge
rightly held that the appellant had levelled baseless allegations against the
respondent in respect of her extramarital affairs with Mr. Ranganna.
Apart from the bald words of the appellant and some vague statements in
the evidence of Vijay, there is nothing on record to show that the
respondent had illicit relationship with Mr. Ranganna. Vijay has stated in
his evidence that once Ranganna had asked for the phone number of the
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respondent. Ranganna is stated to be a cook and if he asked for the phone
number of the respondent, it cannot be said that the respondent had illicit
relationship with Mr. Ranganna. Mr. Ranganna would have had the
number of the respondent if there was an illicit relationship and
Mr. Ranganna would not have asked for the same from Vijay. Though
Vijay had stated that he had learnt from Smt. Bijakre that the respondent
had illicit relationship with Mr. Ranganna, the appellant has not
examined Smt. Bijakre. In any case, on the basis of such bald allegations,
it cannot be said that the respondent was in the habit of developing
relationship with strangers and had an illicit relationship with
Mr. Ranganna. In the absence of any satisfactory evidence in respect of
the illicit relationship, it would be necessary to hold that the appellant has
not proved the said case pleaded by him. There is evidence on record to
show that when the brother of the respondent came to Shirthadi,
Mangalore, the appellant lodged the police complaint against him in
respect of theft. It is difficult to believe that the brother of a woman
would steal or commit theft in her house and even if he so commits, it is
difficult to believe that the husband would lodge a police complaint. Even
if a theft is committed by the brother of the wife, a husband would, at the
most drive out the brother from his house but normally a police complaint
would not be filed. It appears that the police complaint was lodged by the
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appellant at the relevant time in Karnataka merely with a view to ensure
that some proceedings are initiated in Karnataka, so that the petition filed
by him for a decree of divorce is not transferred to Nagpur where the
respondent resides. We find that the allegations levelled by the appellant
against the respondent are reckless. Apart from the bare words of the
appellant there is nothing on record to show that the respondent used to
beat him with iron rod or stick. If that was so, the appellant would have
surely complained about it to the police. Also, the appellant would not
have dared to compromise the matter with the respondent in the year
2011 during the pendency of the proceedings at Nagpur, if the respondent
had frequently assaulted him with iron rod and stick. It is difficult to
believe the case of the appellant that the respondent used to bring the
cooking gas cylinder in the bedroom so as to cause injury to the life and
limb of the appellant and some times, the respondent tried to injure the
appellant with the help of a knife. These allegations appear to be
imaginary and they are not supported by any evidence except the bare
words of the appellant. If the respondent had brought the cooking gas
cylinder in the bedroom when the appellant was asleep or if the
respondent had tried to injure him with a knife in the year 2004-2005, it
is difficult to believe that the appellant would reside with the respondent
and take her to Mangalore after he retired from service on attaining the
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age of superannuation in August, 2008. The parties resided together
firstly at Nagpur and then at Mangalore till they separated in the month
of April, 2009. Immediately after the parties separated, the appellant
instituted the proceedings for a decree of divorce under Section 10 (1)
(ix) and (x) of the Divorce Act. The learned District Judge, on a proper
appreciation of the evidence on record has rightly held that the appellant
had failed to prove that the respondent had treated him with cruelty and
had deserted him. The learned District Judge has rightly held that the
parties had not separated for a period of two years before the institution
of the proceedings. We find that the parties had resided together till the
proceedings were instituted in April, 2009. The evidence of the appellant
is not credible and a decree of divorce cannot be based on his evidence.
Most part of the evidence of the appellant is falsified by the admissions of
the appellant and Vijay in their cross-examination. The findings recorded
by the learned District Judge are just and proper and call for no
interference.
13. In the result, the Family Court Appeal fails and is dismissed
with no order as to costs.
JUDGE JUDGE
Apte and
Wadkar
