Bombay High Court
Lavina Martin vs Sam Bosco Martin on 5 May, 2017
Bench: A.S. Oka
Megha fca_183_2008.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.183 OF 2008
WITH
CIVIL APPLICATION NO.192 OF 2009
IN
FAMILY COURT APPEAL NO.183 OF 2008
Mrs. Lavina Martin ...Appellant
Versus
Mr. Sam Bosco Martin ...Respondent
.....
Shri A.N. Mulla for the Appellant.
None for the Respondent.
CORAM : A.S. OKA &
SMT. ANUJA PRABHUDESSAI, JJ.
JUDGMENT RESERVED ON: 1st MARCH, 2017
JUDGMENT PRONOUNCED ON: 5th MAY, 2017
Judgment (Per Smt. Anuja Prabhudessai, J.):-
The Appellant wife has by this application challenged the
judgment and decree dated 17th July, 2008 whereby the 7th Family
Court, Mumbai allowed the Petition under section 10(x) and 10(ix) of
the Indian Divorce Act, 1869 filed by the Respondent-husband and
dissolved the marriage solemnised between them.
2. The brief facts necessary to decide this Appeal are as under:
The marriage between the Appellant-wife and the
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Respondent-husband was solemnised on 2.1.1988 at St. Joseph
Church, Umarkhadi, Mumbai as per Christian Rules and rituals. On
19.6.1989, a son was born in the wedlock. On 12 th October, 2006 the
Respondent -husband filed a petition under section 10(x) and 10(ix) of
the Divorce Act, 1869 for a decree of divorce.
3. The Respondent-husband claimed that the Appellant-wife
had agreed to stop working in shifts and instead work during regular
office hours. However, after marriage she refused to alter her work
schedule. The Respondent-husband claimed that the Petitioner-wife
was frigid and psychologically impotent. The Respondent-husband
further claimed that the Appellant-wife had given in writing that she
did not have any objections if he had affair with or marries any other
girl and that she displayed total lack of interest and indifference
towards him.
4. The Respondent-husband further claimed that Appellant-
wife frequently visited her parents without informing him and thus
caused mental agony to him and inconvenience to his ailing mother.
The Respondent-husband alleged that in 1988 the Appellant-wife went
to church alone on Christmas day and avoided his company. During
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the Christmas season of 1988 she slapped and abused him and insulted
his mother.
5. The Appellant-wife went to her maternal house during her
pregnancy. The Appellant-wife did not inform him about the birth of
their son, baptism and his first birthday. She returned about two years
later, after much persuasion, but there was no change in her behaviour.
She deprived him of physical relations and remained aloof and on
some occasions she was violent towards him. She did not do
household work and started visiting her parental home.
6. The Respondent-husband claimed that in April-1992
Appellant-wife visited her brother at Kenya with the child without his
permission and knowledge, she started residing in her parental house
after she returned from Kenya, she did not join him in the matrimonial
home and deserted him since 1992. The Respondent-husband
therefore sought divorce on the ground of cruelty and desertion.
7. The Appellant-wife repudiated all the allegations levelled
against her. She claimed that she was ill treated by her mother-in-law
since the date of the marriage. The Respondent-husband did not help
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her in any manner even when she told him about the ill-treatment
meted out to her by his mother, on the contrary, he too started abusing,
assaulting and ill-treating her. The Appellant-wife claimed that the ill-
treatment at the hands of the Respondent-husband and his mother
continued even during her pregnancy. She went to her parental house
for delivery and their son was born on 19.6.1989. Though the
Respondent-husband was informed about the birth of the child, he
visited her only once and thereafter, he refused to take her and the
child to the matrimonial home. It was only after a joint meeting held
between the family members of both sides that the Respondent-
husband took her to the matrimonial house. The Appellant-wife claims
that even thereafter there was no change in his behaviour and which
necessitated her to approach the parish priest for intervention. The
Appellant-wife has stated that she suffered tremendously due to
continuous quarrels and abusive nature of the Respondent-husband.
She has stated that she was forced and coerced into writing the note
that she would have no objection if the Respondent-husband had affair
with or married any other girl.
8. The Appellant-wife has stated that since she was working
for AIR India, was given free tickets to Kenya. She had requested the
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Respondent-husband to accompany her to Kenya, but he refused to join
her. The Appellant-wife claims that she had visited her brother at
Kenya with the permission of the Respondent-husband. When she
returned, she was surprised to receive a legal notice from the
Respondent-husband. She replied to the said notice. She has stated
that the Respondent-husband turned down every attempt made by her
to sort out the differences and to join him at the matrimonial home.
The Appellant-wife claimed that the Respondent-husband cannot take
advantage of his own wrong.
9. Both parties adduced oral as well as documentary evidence.
The learned Judge after considering the evidence adduced by both the
parties held that the Respondent-husband had proved the grounds of
cruelty and desertion and was therefore, entitled for a decree of
divorce under section 10(1) (x) and 10(1) (ix) of the Divorce Act,
1869. Accordingly the Petition was allowed and the marriage between
the parties was dissolved. Being aggrieved by the impugned decree the
Appellant-wife has preferred this Appeal.
10. We have heard Mr. Mulla, the learned counsel for the
Appellant-wife. The Respondent-husband failed to put in his
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appearance despite due service of notice.
11. Mr. Mulla, the learned counsel for the Appellant-wife has
assailed the judgment on the following grounds.
a) The learned Judge has blindly accepted the allegations
levelled against the Appellant-wife and discarded the case
of the Appellant-wife without any cogent reason.
b) The inference drawn by the learned Judge on the basis
of the writing at Exhibit-16 that the Appellant-wife was
avoiding physical relations with the Respondent-husband
is totally erroneous.
c) The learned Judge has failed to consider that the
marriage was consummated and a child was born in the
wedlock. Therefore, the finding that the Appellant-wife
was frigid and psychologically impotent are totally
contrary to the evidence on record.
d) The learned Judge erred in holding that the Appellant-
wife had subjected the Respondent-husband to cruelty.
e) The learned Judge discarded the evidence of the
Appellant-wife that she was forced to leave the
matrimonial-home and that the efforts to resume co-
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habitation were frustrated by the Respondent-husband.
f) The findings on cruelty and desertion are totally
erroneous and cannot be substantiated.
12. We have perused the records and considered the
submissions advanced by the learned counsel for the Appellant-wife.
The Respondent-husband had sought divorce on the ground of cruelty
and desertion under sections 10(1)(x) and 10(1)(ix) of the Divorce
Act.
13. In order to obtain a decree of divorce, the Respondent-
husband had to substantiate that the Appellant-wife had treated him
with such cruelty as to cause a reasonable apprehension in his mind
that it will be harmful or injurious for him to live with the Appellant-
wife.
14. Before adverting to the facts of the case, it is necessary to
refer to the decision of the Apex Court in Samar Ghosh Vs. Jaya
Ghosh (2007) 4 SCC 511 wherein the Apex Court after surveying the
previous judgments has summarised the concept of 'cruelty' as under:-
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"79. ....
On proper analysis and scrutiny of the judgments of this Court
and other Courts, we have come to the definite conclusion that
there cannot be any comprehensive definition of the concept of
'mental cruelty' within which all kinds of cases of mental cruelty
can be covered. No court in our considered view should even at-
tempt to give a comprehensive definition of mental cruelty.
Human mind is extremely complex and human behaviour is
equally complicated. Similarly human ingenuity has no bound,
therefore, to assimilate the entire human behaviour in one defi-
nition is almost impossible. What is cruelty in one case may not
amount to cruelty in other case. The concept of cruelty differs
from person to person depending upon his upbringing, level of
sensitivity, educational, family and cultural background, finan-
cial position, social status, customs, traditions, religious beliefs,
human values and their value system.
Apart from this, the concept of mental cruelty cannot remain
static; it is bound to change with the passage of time, impact of
modern culture through print and electronic media and value
system etc. etc. What may be mental cruelty now may not re-
main a mental cruelty after a passage of time or vice versa.
There can never be any strait-jacket formula or fixed parameters
for determining mental cruelty in matrimonial matters. The pru-
dent and appropriate way to adjudicate the case would be to
evaluate it on its peculiar facts and circumstances while taking
aforementioned factors in consideration.
No uniform standard can ever be laid down for guidance, yet we
deem it appropriate to enumerate some instances of human be-
haviour which may be relevant in dealing with the cases of 'men-
tal cruelty'. The instances indicated in the succeeding paragraphs
are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties,
acute mental pain, agony and suffering as would not make pos-
sible for the parties to live with each other could come within the
broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of
the parties, it becomes abundantly clear that situation is such
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that the wronged party cannot reasonably be asked to put up
with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty,
frequent rudeness of language, petulance of manner, indifference
and neglect may reach such a degree that it makes the married
life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep an-
guish, disappointment, frustration in one spouse caused by the
conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment cal-
culated to torture, discommode or render miserable life of the
spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse
actually affecting physical and mental health of the other
spouse. The treatment complained of and the resultant danger
or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indiffer-
ence or total departure from the normal standard of conjugal
kindness causing injury to mental health or deriving sadistic
pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness,
possessiveness, which causes unhappiness and dissatisfaction
and emotional upset may not be a ground for grant of divorce
on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of
the married life which happens in day to day life would not be
adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few
isolated instances over a period of years will not amount to cru-
elty. The ill-conduct must be persistent for a fairly lengthy peri-
od, where the relationship has deteriorated to an extent that be-
cause of the acts and behaviour of a spouse, the wronged party
finds it extremely difficult to live with the other party any
longer, may amount to mental cruelty.
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(xi) If a husband submits himself for an operation of steriliza-
tion without medical reasons and without the consent or knowl-
edge of his wife and similarly if the wife undergoes vasectomy or
abortion without medical reason or without the consent or
knowledge of her husband, such an act of the spouse may lead to
mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for consid-
erable period without there being any physical incapacity or
valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after mar-
riage not to have child from the marriage may amount to cruel-
ty.
(xiv) Where there has been a long period of continuous separa-
tion, it may fairly be concluded that the matrimonial bond is be-
yond repair. The marriage becomes a fiction though supported
by a legal tie. By refusing to sever that tie, the law in such cases,
does not serve the sanctity of marriage; on the contrary, it shows
scant regard for the feelings and emotions of the parties. In such
like situations, it may lead to mental cruelty.".
15. Now reverting to the facts of the present case the main
grievance of the Respondent-husband was that the Appellant-wife was
frigid and psychologically impotent and that she deprived him of
pleasures of marital life. It is pertinent to note that the Appellant-wife
and the Respondent-husband were married in the year 1988. Their
marriage was consummated and they were blessed with a son on
19.6.1989. Therefore, the contention of the Respondent-husband that
the Appellant-wife was frigid and psychologically impotent needs to be
rejected outright.
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16. It is pertinent to note that the Appellant-wife had
categorically denied the allegations of frigidity and impotency. The
learned Judge discarded the defence and accepted the case of
Respondent-husband, mainly on the basis of the writing at Exhibit-16
wherein the Appellant-wife had stated that she had no objection if the
Respondent-husband had affair with any girl or if he married any girl
or all of them.
17. The evidence on record clearly indicates that the marital
life of the Appellant-wife and the Respondent-husband was not
smooth, peaceful or blissful. There were constant quarrels and
squabbles between the parties over trivial issues. In such
circumstances, writing at Exhibit-16 can at the most be construed as an
expression of frustration and mental stress. The said note, wherein the
Appellant-wife had allegedly given permission to the Respondent-
husband to have affair with other women certainly cannot be
construed as an admission of frigidity or psychological impotency.
Hence, the inference drawn by the learned Judge on the basis of the
said writing is totally erroneous. Furthermore, apart from the bold
allegations made by the Respondent-husband, there is absolutely no
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evidence to indicate that the Appellant-wife was repugnant to have
physical relationship with the Respondent-husband or that she had
deprived him of marital relationship as to constitute mental cruelty.
18. The Respondent-husband has also alleged cruelty in the
form of continuous insulting and denigrative treatment meted out to
him and his mother by the Appellant-wife. The incidents as narrated
by the Respondent-husband in his evidence are :-
(1) The Appellant-wife, though agreed prior to marriage,
did not get her work schedule changed from shifts to
regular office hours and this caused inconvenience to him
and his mother.
(2) The Appellant-wife frequently visited her parental
home during her pregnancy and stayed there for a long
period without his permission.
(3) That Appellant-wife insulted him in presence of his
mother.
(4) The Appellant-wife did not accompany him to church
on the Christmas day of 1988 and during a quarrel, she
slapped and abused him and insulted his mother.
(5) The Appellant-wife did not inform him of the birth of
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his son on 19th June, 1989 and he learnt about the same
on 29th June, 1989 through his friend.
(6) The Appellant-wife did not name the child as 'Victor'
i.e. after the name of his father.
(7) The Appellant-wife baptised the child in his absence.
19. The allegations against the Appellant-wife are either of
trivial nature or vague and therefore, are not adequate for grant of
divorce. Furthermore, the Appellant-wife in her evidence has denied
all these allegations. She has deposed that after her marriage she was
ill-treated by the Respondent-husband and his mother. She has
deposed that she used to go to her parental house with due permission
of the Respondent-husband. The Appellant-wife has denied that the
Respondent-husband was not informed about the birth of the child.
She has deposed that the Respondent was informed on the same date
but he visited them only on 29th June, 1989. She has denied that she
had abused, insulted or slapped the Respondent-husband.
20. The Appellant-wife has thus refuted each and every
accusations levelled against her by the Respondent-husband. Hence, in
absence of corroborative evidence the learned trial Judge was not
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justified in accepting the evidence of the Respondent-husband and
discarding the evidence of the Appellant-wife, without there being any
justifiable reasons.
21. It is also to be noted that despite these allegations, the
matrimonial dispute was settled with the intervention of the relatives
and the Appellant-wife had joined the Respondent-husband in the
matrimonial home in the year-1990. Thus, cruelty, if any was
condoned by subsequent conduct and hence the incidents narrated
above could not be a ground for divorce.
22. The Respondent-husband has also given some instances of
cruelty after the Appellant-wife had joined the matrimonial home.
These allegations which are akin to those stated above, are again not
corroborated. Furthermore, these allegations are nothing more than
ordinary wear and tear of married life.
23. The evidence does not indicate that the Appellant-wife by
her acts or action or by her conduct had subjected the Respondent-
husband to such physical or mental suffering as to raise reasonable
apprehension that it would be harmful or injurious for him to live with
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the Appellant-wife. Hence, we are of the view that the conduct
attributed to the Appellant-wife does not amount to 'cruelty'.
24. The Respondent-husband has also sought divorce on the
ground of desertion. To obtain divorce on the ground of desertion, in
terms of section 10(1)(ix) of the Divorce Act the burden was on the
Respondent-husband to prove that the Appellant-wife had deserted
him for more than 2 years immediately preceding the presentation of
the Petition. In Rohini Kumari v/s. Narendra Singh (1972) 1 SCC 1,
the Apex Court while considering the true meaning of 'desertion' has
held as under :
"It is stated that desertion is not to be tested by merely
ascertaining which party left the matrimonial home first. If
one spouse is forced by the conduct of the other to leave home,
it may be that the spouse responsible for the driving out is
guilty of desertion. There is no substantial difference between
the case of a man who intends to cease cohabitation and leaves
the wife and the case of a man who with the same intention
compels his wife by his conduct to leave him.
In Lachman Utamchand Kirpalani v. Meena alias Mota(1) this Court
had occasion to consider the true meaning and ambit of s. 10
(1) (a) of the Act read with the Explanation. Reference (1)
[1964] 4 S.C.R. 331.
was made in the majority judgment to the earlier decision
in Bipin Chander Jaisinghbhai Shah v. Prabhawati (2) in which all the
English decisions as also the statement contained in authorita-
tive text books were considered. After referring to the two es-
sential conditions, namely, the factum of physical separation
and the animus deserendi which meant the intention to bring
the cohabitation permanently to an end as also two elements
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so far as the deserted spouse was concerned i.e. (1) the absence
of consent and (2) absence of conduct giving reasonable cause
to the spouse leaving the matrimonial home to form the inten-
tion aforesaid, it was observed while examining how desertion
might come to an end "In the first place,, there must be con-
duct on the part of the deserted spouse which affords just and
reasonable cause for the deserting spouse not to seek reconcili-
ation and which absolves her from her continuing obligation
to return to the matrimonial home. In this one has to have re-
gard to the conduct of the deserted spouse. But there is one
other matter which is also of equal importance, that is, that
the conduct of the deserted spouse should have had such an
impact on the mind of the deserting spouse that in fact it caus-
es her to continue to live apart and thus continue the desertion.
But where, however, on the facts it is clear that the conduct of
the deserted spouse has had no such effect on the mind of the
deserting spouse there is no rule of law that desertion termi-
nates by reason of the conduct of the deserted spouse".
25. Reverting to the facts of the present case, the Respondent-
husband has claimed that on 28th April, 1992 the Appellant-wife left
the matrimonial home and did not return. He was subsequently
informed by the brother of the Appellant-wife that she had gone to
Nairobi with their minor son, to visit her elder brother and that she
would return after about 15 days. The Respondent -husband has
stated that the Appellant-wife had left the country with minor child
without his knowledge, permission or consent and that it was the final
separation. He has deposed that the Appellant -wife had purposely
rejected all opportunities of coming together and deserted him for
more than 15 years and had thus brought cohabitation to an end.
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26. It is to be noted that as against the aforesaid evidence, the
Appellant-wife has deposed that since she was working for AIR India
she had got free tickets for Kenya. She has stated that she had gone to
Kenya to visit her brother with the permission and consent of the
Respondent-husband. She has stated that when she returned to
Mumbai to her surprise she received a legal notice dated 26.5.1992
from the Respondent-husband which was replied by her through her
Advocate dated 16.9.1992. She has stated that meanwhile her son was
sick as he had asthamatic problem and she remained busy taking care
of him. The Respondent-husband sent another notice dated 21.1.1993
making several allegations against her which was replied by her reply
dated 11.6.1993. She has deposed that thereafter she contacted the
Respondent-husband to allow her to return to matrimonial house.
However, he refused to allow her to resume cohabitation. She has
stated that the Respondent-husband by his own conduct deserted her
and that he is not entitled for decree of divorce. In her cross
examination she has stated that she had also approached Mahila
Manch in an attempt to resume cohabitation, however, the Respondent
-husband refused to allow her to join the matrimonial house.
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27. The aforesaid evidence reveals that in the month of April-
1992 the Appellant-wife had gone to Kenya for about 15 days to see
her brother. The mere fact that the Appellant-wife had visited her
brother at Kenya with or without consent of the Respondent -
husband, or that upon her return she had started residing at her
parental house would not per say amount to desertion or final
separation as alleged by the Respondent-husband. The moot question
is whether the Appellant-wife had no intention of resuming
cohabitation. In this regard, it is pertinent to note that the evidence of
Appellant-wife indicates that she had made attempts to join
matrimonial house and that the Respondent-husband had not allowed
her to resume cohabitation. The contention of the Appellant-wife is
fortified by the fact that the Respondent-husband had issued a legal
notice immediately after her return from Kenya. In the said legal
notice he had made several allegations against the Appellant-wife
including the allegation that his consent for marriage was not free and
valid consent and the same was obtained by misrepresentation,
coercion, pressure and fraud. The records further reveal that vide
Petition dated 1.7.1993 addressed to Judicial Vicar, the Metropolitan
Tribunal of the Archdiocese of Bombay, the Respondent-husband had
sought annulment of the marriage. The allegations made in the notice
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as well as filing of the Petition for annulment within a period of two
years from the alleged date of separation, reveals that the Respondent-
husband was not keen on continuing with the marital ties. The
aforesaid facts supports the case of the Appellant-wife that the
Respondent-husband had in fact not allowed her to join the
matrimonial house despite her efforts. Consequently, it cannot be held
that the Appellant-wife had left the matrimonial home without any
reasonable cause or with an intention of bringing cohabitation to an
end. In the light of the above facts, the marriage could not have been
dissolved on the ground of desertion.
28. Now coming to the Application No.192 of 2009 The
Appellant-wife has sought following reliefs :
(a) The Respondent be directed to pay a sum of Rs.16,37,542/-
(Rupees Sixteen Lakhs Thirty Seven Thousand Five Hundred Forty
Two only) being arrears of maintenance incurred by applicant on
their son Zeeshan Sam Martin;
(b) the respondent be further directed to pay monthly maintenance
of Rs.15,000/- to his son Zeeshan Sam Martin to enable him to
maintain and study;
(c) the respondent be directed to pay a sum of Rs.15,000/- to
applicant as a monthly maintenance.
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29. At the outset, it may be mentioned that the Appellant-wife
had not filed any application before the Family Court for maintenance
either for herself or the minor son. The question whether the
Appellant-wife had indeed incurred expenses of Rs.16,37,542/-
towards the maintenance of the child, is a question of fact and needs
adjudication on merits.
30. Similarly, the Appellant-wife has claimed maintenance of
Rs.15,000/-p.m. for herself and Rs.15,000/-p.m. for her son. The
Appellant-wife is employed and the son had attained majority on the
date of the judgment of the Family Court. Since the Appellant-wife
had not made any such claim before the Family Court, the Respondent
-husband had no opportunity of being heard in the matter. In the
absence of evidence and adjudication of the issue on merits, the claims
for payment of arrears or maintenance for the Appellant-wife and the
child cannot be decided or granted in this Appeal. Suffice it to say that
we have not gone into the merits of the said claims and the Appellant-
wife is at liberty to raise such claims by filing appropriate proceedings,
if she so desires.
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31. Under the circumstances and in view of discussion (supra)
the Appeal is allowed. The impugned judgment and order dated 17 th
July, 2008 is hereby quashed and set aside. The Application No.192 of
2009 stands dismissed as not maintainable.
(ANUJA PRABHUDESSAI, J.) (A.S. OKA, J.)
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