Bombay High Court
Vaishali Nagsen Sarje vs Nagsen Kondibarao Sarje on 3 October, 2017
Bench: T.V. Nalawade
1 FCA12.2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
FAMILY COURT APPEAL NO. 12 OF 2016
Sou. Vaishali W/o. Nagsen Sarje,
Age : 35 years, Occu. Nil,
R/o. Anand Building, Flat No. 12,
Adinath Nagar, Garkheda Parisar,
Aurangabad. ... Appellant
VERSUS
Nagsen S/o. Kondibarao Sarje,
Age : 41 years, Occu. Government Servant,
R/o. S.T. Quarters, Samarthnagar,
Aurangabad. ... Respondent
..........
Mr V. D. Patnoorkar, Advocate for the appellant
Mr Hemant Surve, Advocate for respondent.
.............
CORAM : T. V. NALAWADE &
A. M. DHAVALE, JJ.
DATE : 03.10.2017.
ORAL JUDGMENT (PER A. M. DHAVALE, J.) : -
1. After hearing learned counsel for the parties on
03.10.2017, we have dismissed the appeal stating that the reasons to
follow. Here are the reasons.
2. This is an appeal by wife - Vaishali challenging the
Judgment & Decree of judicial separation u/s 10(1) of the Hindu
2 FCA12.2016
Marriage Act, 1955 delivered by Judge, Family Court at Aurangabad
on 16.10.2014 in Petition No.A-57/2013.
3. The facts relevant may be stated as follows :
The present respondent is the original petitioner - Nagsen.
For the sake of convenience the parties are herein after referred to by
their first names i.e. Nagsen & Vaishali. The marriage of Vaishali was
solemnised with Nagsen on 05.01.2003 as per Buddhist rites and
customs. Both Nagsen & Vaishali were cohabiting at Aurangabad.
Out of the said wedlock, Vaishali was blessed with two sons. Nagsen
had filed HMP No. A-57/2013 before the Family Court for judicial
separation on the ground of cruelty. He alleged that Vaishali was
very much aggressive and quarrelsome in nature. She was quarreling
with all persons like vegetable vendor, society watchman, maid
servant etc. She used to insult and humiliate the persons with whom
she was quarreling. She was not in habit of cooking food. She was
extremely suspicious and was raising suspicion about relations of
Nagsen with any person coming to his house. She used to make
comments that particular persons were not of good morals. Whenever
Nagsen was appreciating any woman including actresses acting in
T.V. serial, she used to make taunts as to whether he was having any
relations with her. She was never contended by purchases made by
3 FCA12.2016
Nagsen and she used to make taunts about the quality of articles
purchased. She was taking money from the pocket of Nagsen
without intimation to him and was indulging into Bhishi of
Rs.5,000/- per month. She was not behaving respectfully with the
relatives of Nagsen and was making insulting taunts with respect to
her parents in-law and suggesting that they should commit suicide.
She was in habit of chewing tobacco. She beat her son mercilessly
and when she was persuaded not to beat children, she showed
aggressive and violent attitude. She was not maintaining peace in the
house and was not doing household activities. She was neither
teaching her children nor cultivating good habits to them. Nagsen
had taken her for Psychological treatment in Shanti Nursing Home
and thereafter Doctor opined that she is a psychiatric patient. This
fact was brought to the notice of her maternal relatives and they
assured that they would try their level best to treat her properly.
Vaishali was not taking medicines brought for her and was making
comments against the Doctor. She was threatening to commit
suicide. Once she broke her Mangalsutra and threw it towards her
husband. Once Nagsen was offering prayers to Lord, she assaulted
him with broom. She threatened to kill him by smothering under a
pillow. When he called his parents, she continuously insulted them
and threatened them. Once she confined herself in one room and
4 FCA12.2016
threatened to commit suicide. Once she had left her house along with
her clothes, ornaments and cash of Rs. 7,000/- without intimation
and Nagsen was required to lodge report with Police Station. Later,
she returned home of her own and when she was asked where she
had gone, she told him that she had gone to commit suicide. Nagsen
gave intimation about her behaviour to her maternal relatives. Her
brother came on 18.08.2012 and admitted that his sister was wrong
and took her to her maternal relatives. Nagsen offered to pay money
for her psychiatric treatment. On 15.12.2012, she returned home
and tried to make forcible entry. She later on executed Mafinama
and thereafter she was allowed to resume cohabitation but she again
started behaving in same fashion. She started writing letters making
false allegations. Her maternal relatives declined to interfere and
disowned her. On 25.12.2012, she quarreled with her husband and
compelled him to leave his house. Then she gave a ring to him and
called him stating that she had cooked Gulab Jamun for him. He was
surprised and took Gulab Jamun to eat. He noticed pungent smell
and avoided to eat it. When one cat ate Gulab Jamun, it was
revealed that Gulab Jamun was mixed with poison. On 28.12.2012,
Vaishali and her maternal relatives forcibly broke open the house of
Nagsen and took away cash of Rs. 15,000/- and gold of 11.5 tolas.
Nagsen lodged FIR at Mukundwadi Police Station. Vaishali lodged a
5 FCA12.2016
false report at Women's Grievances Redressal Cell on 07.01.2013.
Hence, Nagsen claimed judicial separation from her.
4. Vaishali appeared in the matter but did not respond to the
efforts of Marriage Counsellor and did not file written statement.
She did not attend the case for contesting the same. The petition
proceeded without her written statement. The petitioner filed
affidavit evidence.
5. As per his pleadings, the petitioner also examined Dr. Vinay
Barhale and filed number of documents. The respondent - Vaishali
did not attempt to cross-examine the witnesses of the petitioner.
The ld. trial Judge on the basis of uncontroverted pleadings and
evidence of the petitioner, was satisfied about the mental cruelty and,
therefore, the decree for judicial separation was passed on
16.10.2014.
6. Vaishali has preferred this appeal and seeks remand of the
matter on the following grounds:
(i) She had not appeared before the Family Court and
had not sought time for filing written statement. Her
6 FCA12.2016
signature in the record is false. She is illiterate,
innocent and has no legal knowledge.
(ii) She could not appear personally. She was under
tension due to ill-treatment by her husband.
(iii) She wanted to cohabit with her husband in the
company of her sons but he was not cohabiting with
her. She was ready to cohabit with him without any
condition. Her husband has earlier given divorce to his
first wife Sheela by ex parte decree and his marriage
with Vaishali was second marriage.
(iv) Hence, she prayed for setting aside the impugned
decree and remanding the matter back to Family
Court at Aurangabad.
7. Heard learned counsel Shri. V. D. Patnoorkar for the
appellant and Shri. Hemant Surve for the respondent.
8. After hearing the ld. advocate for respective parties, we
find no substance in the contention of the appellant that she was not
7 FCA12.2016
served, she did not appear and had not filed any application before
the ld. trial Court. The record of the trial court shows that she had
very much appeared and she was even sent to Marriage Counsellor.
She had filed application Exh. 6 for written statement and registered
address at Exh. 7. Therefore, decree cannot be set aside on the
ground that there was no service of summons on the appellant.
9. A request was made for quashing of the impugned
judgment and remanding the matter to the Family Court in the
interest of justice as the matrimonial life of the appellant was in
danger and she was not likely to get even maintenance. It is also
submitted that the husband has filed petition for divorce on the
ground of judicial separation and the same would succeed in case the
decree of judicial separation is not set aside.
10. Learned advocate Shri Hemant Surve for the respondent
has relied upon the judgment of this Court in the case of Jethabhai
Ratanshi Lodaya vs Manabai Jethabhai Lodaya AIR 1975 Bom 88
to submit that, only because there is a decree of judicial separation,
the discretion of the court either to grant a decree of divorce or
refuse the said decree is not taken away. In this case, it is observed
as under :
8 FCA12.2016
9. ......... the term 'judicial separation' came to be
used for denoting a limited kind of divorce i.e. separation from bed
and board thereby putting an end to notice that in India also the
remedy of judicial separation was made available to the Christians by
the Indian Divorce Act.
12. ........ But judicial separation does not itself
dissolve the marriage though it affords a ground for divorce. In this
sense a decree of judicial separation aims at divorce but the
separation is not final and irrevocable as can be seen from the latter
provisions of Section 10(2) and there is always a locus penitential.
But since on a decree of judicial separation the duty to cohabit ceases
there can be no desertion after such decree.
13. ....... But having regard to the very nature of the
remedy of judicial separation and the effect of non-cohabitation
provision itself there is no ambiguity or obscurity in construing the
provisions of Section 10(2) and they are susceptible of only one
meaning namely that after the passing of the decree for judicial
separation both the parties are released from their material
obligations to cohabit with the other. Therefore as already noticed
earlier, the above rule of harmonious construction of several parts of
9 FCA12.2016
a statute also militates against appellant's contention that the old
clause (viii) of Section 13 did not imply an element of default or
wrong on the part of the other party.
14. .... No doubt after a decree of judicial separation
the parties or either of them may make attempts for reconciliation
and even the Court is at the hearing of the petition for divorce
enjoined in every case where it is possible so to do to make every
endeavour consistently with the nature and circumstances of the case
to bring about a reconciliation between the parties.
19. .... As already noticed a decree of judicial
separation does not by itself dissolve the marriage but aims at it
while leaving time to both the parties for reelection, adjustment and
reconciliation.
11. We agree with the submissions of learned advocate - Shri.
Hemant Surve that once a decree for judicial separation is passed and
thereafter a decree for divorce is claimed on the said ground, the
decree of divorce is not a matter of course. Considering the facts, we
find that it is not necessary to set aside the decree of judicial
separation on equitable grounds as well. It is open for the parties to
10 FCA12.2016
make efforts for reconciliation as observed in para 105 of Jethabhai's
case (supra) as under:
105. ......... It stands to reason that the decree for
judicial separation both the husband and the wife back,
would be his duty to do after the decree for judicial
separation, both the husband and the wife are entitled to
live separately (and in a majority of cases peacefully), as
per the orders of the Court and they are, in my opinion,
in no way obligated to resume cohabitation or to make
overtures to each other, although it can be said that
there is nothing in a decree for judicial separation which
would prevent the parties, if they are so minded., to be
reconciled to each other and to resume cohabitation, if
they choose to do so. The only result of such resumption
of cohabitation would be able to take recourse to the
grounds contained in Section 13(1A) for obtaining a
divorce if they should unfortunately, fall out again.
12. With these observations, we dismiss the appeal with no
order as to costs.
[ A. M. DHAVALE ] [ T. V. NALAWADE ]
JUDGE JUDGE
sgp
