Meenakshi Ashokbhai Doshi vs Ashok Dhirajlal Doshi on 6 October, 1986

JUDGMENT

Sharad Manohar, J.

1. This is as appeal filed by the respondent with against the decree of divorce passed against her by the City Civil Court, Bombay.

For the sake of convenience, the parties will be referred to with reference to their position in the trial Court as petitioner and respondent, the husband being referred to as the ‘petitioner’ and the wife being referred to as the ‘respondent’.

2. To state it very briefly, the petitioner husband filed the petition against the respondent wife for divorce on the ground that with effect from 25th October, 1976 she left the matrimonial home with the intention not to return back to the matrimonial home at any time. In other words, according to the petitioner she deserted him for good on and with effect from 25th October, 1976 and that she had not come to the matrimonial home right till the date of the petition which was filed on 4th March, 1980.

The respondent’s defence on other hand was that she did not leave the matrimonial home out of volition but was forced to take that step because of the harassment and ill-treatment meted out to her by the petitioner and his parents and sisters. In other words, it was her case that the boot was on the other foot and that it was a case of constructive desertion on the part of the husband himself.

Pending the hearing of the petition, she made an application for interim alimony and interim alimony had been awarded to her by the Court at the rate of Rs. 850/- per month for herself as well as for the child from the marriage.

After the evidence was led and the arguments were heard, the learned Judge was satisfied that the respondent-wife had not made good her case of such cruelty as could give rise to the inference of constructive desertion on the part of the husband. At the same time, however, the learned Judge was of the view that the petitioner-husband had not placed all the evidence before the Court to prove his plea of inability to pay maintenance to the respondent-wife at any rate higher than Rs. 850/- per month as already ordered by the Court. Taking an over-all view of the evidence, reading between the lines as it were, the learned Judge arrived at the conclusion that the petitioner-husband must be getting an income of Rs. 5000/- per month and on that basis, directed payment of alimony to the respondent-wife under section 25 of the Hindu Marriage Act, 1955 at the rate of Rs. 2000/- per month, Rs. 1500/- for the wife and Rs. 500/- for the child. The petitioner’s petition for divorce was, therefore, decreed by him but at the same time he ordered the petitioner to pay maintenance to the respondent aggregating to Rs. 2000/- per month for herself and for the child.

It is against this decree that the respondent wife had filed the present Appeal to this Court whereas the petitioner-husband had filed cross-objections contending that the award of alimony at the rate of Rs. 2000/- per month was not justified by the evidence on the record.

This is the broad picture of the nature of dispute that is required to be resolved by me in this Appeal. But I may say at this stage itself that the resolution of the dispute is the last thing which will take place in this Appeal. As rightly pointed out by Mrs. Nanavati, the spouses are living apart for ten years by now; there exists complete absence of rapport between them; practically they are strangers to each other by now and it appears that even the child has been a stranger to the father. In fact it is the argument of Miss Bandukwala appearing for the respondent-wife that on all material occasions the petitioner-husband has treated even the child with coolness, aloofness and indifference. No doubt this position is not admitted by Mrs. Nanavati appearing for the respondent-husband. In fact she has placed before the Court an Insurance Policy taken by the petitioner for the child by virture of which a sizable amount will be available to the child in one lumpsum upon his attainment of majority. Whatever that may be, the fact remains that whatever judgment. I deliver, resolution of the dispute will be the last thing which will materialise. All that is, therefore, left for me is to adjudicate upon the dispute in the cold legal manner, hoping that wiser counsel prevail at least at the time when this litigation is carried further and this is what I propose to do in the following paragraphs.

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7. The Written Statement was filed by the respondent on 13th July, 1980. Naturally, she denied the allegation of desertion on her part. It is unnecessary to set out each of the denials. It is sufficient her to state the following averments and denials in the written statement.
 

In paragraph 4 of her written statement, it is denied that the respondent left the matrimonial home on 25th October, 1976 by virtue of any instigation on the part of her parents. A positive averment was made by the respondent that the petitioner started beating the respondent off and on upon the instigation of his own parents and sisters. She stated that as a Hindu wife she tolerated all the suffering with the hope that the situation would improve one day, but that her life became more and more miserable and ultimately this caused so much mental torture and became so much unbearable for the respondent that it was impossible for her to live any more in the matrimonial home.

In paragraph 5 she has given the same explanation as given in the correspondence for the question as to why she did not reply the petitioner’s personal letters and the circumstances in which she was compelled to give reply to the legal notices sent by him through his Advocate. A copy of the letter dated 15th August, 1977 written by her Advocate, which copy was not annexed to the petition by the petitioner, was annexed by the respondent to her written statement as Exhibit “I”.

In paragraph 6 it is stated that the respondent still yearns to reside with the petitioner but in separate home. She has further stated that it is not late even till today when relations can be restored and the petitioner’s prejudice to the respondent would subside.

In paragraph 13 she has described the affluence of the petitioner and has mentioned, inter alia, the fact that at the time of her marriage, as huge an amount of Rs. 1,11,221/- had been just donated by the petitioner’s family.

In paragraph 14 she has mentioned the value of the ornaments gifted to her by the petitioner’s parents and relatives. She has mentioned that about 50 tolas to gold ornaments worth about Rs. 1,00,000/- were given to her and she has even described those ornaments. She has stated that those ornaments were retained by the petitioner when the respondent was compelled to leave the matrimonial home, only with the ornaments given by her parents.

In Paragraph 15 of the written statement she has asked for maintenance for herself at the rate of Rs. 1,500/- per month and for the child at Rs. 500/- per month as also for the return of the jewellery gifted to her in-laws at the time of her marriage with the contention that, that was her Stridhan property and as such belonged to her exclusively.

I may, however, mention here that although allegations of cruelty and beating are made in the written statement as filed originally, the particulars about cruelty and the particular incidents of beating have not been given in the written statement.

8. Issues on all these points were framed by the learned Judge. One of the issues was as to whether the respondent makes good her case of cruelty having been meted out to her by the petitioner during the respondent’s stay with the petitioner. There were certain supplemental pleadings and by virtue of that fact certain additional issue was framed by the learned Judge ; but it is unnecessary to refer to that part of the proceeding because there is no grievance about the same in this Appeal from either side. On 27th March, 1984 an additional issue was framed whether petitioner was taking advantage of his own wrong and on 14th June, 1984 the trial started. As the Examination-in-Chief of the petitioner was in progress, an additional issue relating to the Court’s jurisdiction was framed by the learned Judge on 25th June, 1984. We are not concerned about even this issue because there is no dispute before me that the finding of this issue which is in favour of the petitioner is unassailable.

9. On 29th June, 1984, the petitioner’s Advocate gave a Notice to the respondent’s Advocate stating that although the plea of cruelty was raised by the respondent in her Written Statement, no particulars of the same were given in the Written Statement. It was stated that the defence of constructive desertion raised by the respondent in the Written Statement was devoid of all particulars as required by law. The respondent’s learned Advocate was, therefore, informed by the petitioner’s Advocate that on the next date of hearing of the petition the petitioner’s Advocate would be applying for striking out of the issue raised by the Court on that plea. It was after the receipt of this notice that on 6th July, 1984 the respondent took out a Chamber Summons for amendment to the Written Statement for giving particulars relating to the various acts of cruelty committed by the petitioner-husband upon the respondent-wife during the respondent’s stay with the petitioner’s family. The particulars are mentioned in Schedule-I annexed to the petition. They are 25 in number. The Chamber Summons was opposed by the petitioner but after hearing the parties the learned trial Judge allowed the Chamber Summons with respect of particulars Nos. 14, 17, 19, 20, 22, 23, 24 & 25.

By particular No. 14 the respondent stated that when the respondent went back to the petitioner’s house on 26th March, 1976 the petitioner’s parents and sisters continued the same behaviour of harassment to the respondent and that though the petitioner initially was keeping quiet from June 1976 onwards the petitioner started assaulting the respondent at the instigation of his parents and sisters.

By particular No. 17, it was stated that the petitioner, one day in June 1976, told the respondent that her father had swindled the wealth of her grandparents and deprived his brothers and sisters of their shares in the grandparents’ property. There was a reply given by the respondent to the effect that even the petitioner’s mother had inherited legacy from her father and that, that fact did not mean that the petitioner’s father had swindled his father-in-law. Upon hearing this reply, the petitioner gave to the respondent severe beating by hand which made her lose her mental peace and ruined her health.

By particular No. 19 an incident that took place early morning on a Shravan day has been described and it is stated that at that time the petitioner gave to the respondent severe beating. This incident has quite some bearing upon the respondent’s evidence. I will refer to the same in details at the time when I discuss the evidence as a whole.

By particular No. 20, it was mentioned that in September 1976 the respondent was ordered by the petitioner to prepare two lists of her presents, and as regards those given to her by her own parents and the other as regards those gifted to her by her in-law and their relatives. The petitioner stated that she refused to do so upon which the petitioner got flared up and assualted the petitioner. She stated that she had to prepare the two lists and the same were handed over by the petitioner to his father. She has stated that this caused extreme anxiety in respondent’s mind and made her spend a few sleepless nights.

By particular No. 22, one incident that took place in October 1976 is described. This incident has also great bearing upon the question that needs to be decided in this Appeal. I will therefore, set out the same fully when I discuss the entire evidence. At this stage, I may state only this much that at that time, according to the respondent, the respondent gave to the petitioner first blows on her head and that this was the result of the instigation received by him from his father. She has stated that as a result of these fist blows she got headache for a continuous period of ten days but she received no treatment in the matrimonial home.

By particular No. 23, it is contended that at the time of the said incident the petitioner’s father was hurt by a piece of glass from the broken milk bottle and that taking advantage of this, the petitioner and his family spread a rumour in the building that the respondent had tried to throw the bottle at the petitioner’s father but that luckily the servant who came in between received the injuries and the petitioner’s father was saved. The allegation is that the petitioner supported this version of his parents.

By particular No. 24, the incident that took place on the date of the Laxmi pooja in October 1976, just about three days before the date on which the petitioner took departure from her matrimonial home is stated. This incident really speaking spells a plea of mental cruelty. I will set out the full allegation at the time when I discuss the parties evidence.

The last particular No. 25 refers to an imputation against the respondent as regards her character. I will refer to the incident while discussing the evidence.

10. It will be seen that out of twenty-five particulars given by the respondent by way of amendment of the written statement, only eight have been allowed to be incorporated in the written statement whereas the other eighteen incidents have been disallowed. Against that part of the order disallowing amendment of the written statement by incorporation of those 18 incidents, Revision Application No. 454 of 1984 was filed by the respondent. It appears that rule was issued on the same initially but by order dated 27th February, 1985 a learned Single Judge of this Court (S.J. Deshpande, J.) discharged the rule. I will have occasion to examine the effect of this order in this judgment.

After decision of this Revision Application the evidence re-started on 30th January 1985. It was over on 21st October, 1985. The arguments were thereafter heard by the learned Judge and the learned Judge came to the conclusion that whereas the fact that the respondent had left the matrimonial home on 25th October, 1976 and had not returned to the matrimonial home even on the date of the petition was fully proved because it was an admitted fact, the respondent’s plea of constructive desertion by the petitioner based upon her plea of cruelty meted out to her by the petitioner was not at all made good by her. The learned Judge has held that the petitioner has proved desertion by the respondent wife without any just and sufficient cause for a period extending to 2 years, the petitioner was entitled to a decree of divorce from the respondent-wife.

The learned Judge was required to decide also the question of alimony, upon the grant of a decree of divorce, under section 25 of the Hindu Marriage Act. He examined the evidence of the petitioner as well as that of the respondent and he came to the conclusion that although the petitioner wanted the Court to believe that his actual income that he got in his hand did not exceed Rs. 800/- per month and although his total income, according to the petitioner, could not be more than Rs. 1800/- per moth, his income must not be less than Rs. 5000/- per month subject to the deduction of income-tax. The learned Judge, therefore, granted respondent’s prayer for maintenance to be paid by the husband to the respondent at the rate of Rs. 1500/- per month to herself and at the rate of Rs. 500/- per month to the child Anand. A decree for divorce and for payment of maintenance as aforesaid was, therefore, passed by the learned Judge by the order dated 10th January, 1986.

11. Although the arguments on the part of both the learned Counsel, Miss Bandookwala as also Mrs. Nanavati went on for quit a few days, the question that ultimately boils down is as to whether the respondent wife has made good her case of cruelty allegedly meted out by her husband and by her in-laws. Unless the respondent proves this cruelty, instances as regards which have been set out by the amendment of the Written Statement, the respondent can have no answer to the petitioner’s demand for divorce. Evidently, therefore, the onus of proving that the petitioner is not entitled to divorce in the context of the instances of cruelty pleaded by her amended written statement is upon the respondent herself. However, as will be presently pointed out, it would not be correct to hold that the test for discharging the onus is a test of absolute rigidity. After all this is a civil matter. From the very nature of things, these instances of cruelty pleaded by the respondent would be within the knowledge of herself and her husband and all other members of his family. Normally, it would be futile to expect independent evidence of persons such as neighbours or strangers to be adduced by the respondent. This apart in these matters we have to go by the rule of probability as in other civil cases and not by the rule of certainty beyond reasonable doubt as in criminal matters. I shall have to examine whether the learned Judge has not fallen in an error, although unconsciously, of requiring the respondent’s evidence to be tested on the touchstone of certainty beyond reasonable doubt.

Further, the fact that the instances of cruelty were not pleaded by the respondent in her original Written Statement dated 13th July, 1980 may have some bearing upon the question as to whether the statement of the instances was not an afterthought ; but once the amendment is allowed, that inference cannot be a conclusive inference. It is possible that such cases pleadings of those particulars were omitted not on account of any fault on the part of the party as such but because of the decision of the learned Advocate of the party. As will be presently pointed out, there are Advocates and their understanding of the procedural law and of the law relating to pleadings cannot be of uniform character. If the respondent has mentioned in the Written Statement that she was given beating by her husband, it would be necessary for the learned Advocates to make averments in the Written Statement as regards the days or occasions on which such beatings were administered. But this is after all a matter of expert knowledge. It is unrealistic to expect the party to be cognisant of the intricacies of the law of pleadings and to expect her to prevail upon her Advocates to incorporate those instances of cruelty in the Written Statement. As will be presently pointed out, this is what the learned Judge has really done and the evidence of the respondent as regards each of the instances of cruelty has been rejected more or less on the ground that the instances had been pleaded long after the original Written Statement. As will be presently pointed out, the learned Judge has examined the respondent’s evidence in connection with each of the instances of cruelty and has discarded the evidence in some cases because it is word against word. But when he found that some part of the petitioner’s evidence suffered from similar drawback of word against word, he has believed the petitioner and has disbelieved the respondent’s evidence as regards that instance on the ground that the instance was pleaded as an after-thought by an amendment. To my mind, an element of unfairness has crept into the Judgment by virtue of such an approach to the respondent’s evidence.

I will, therefore, firstly deal with the effect of the delay in the amendment of the Written Statement of the first respondent and whether it conclusively spells afterthought in the instant case.

12. Normally speaking, once the amendment is allowed, it is deemed to have become a part of the Written Statement right from the date of filing the original Written Statement, but it would be a legitimate subject of cross-examination to ascertain whether the facts pleaded by the amendment were not an afterthought. The cross-examination of the respondent in this connection starts from Para No. 28 of her evidence.

(a) The first question put to her in that behalf by Mrs. Nanavati was as to whether the respondent was fully aware, when she filed her original Written Statement, that all the particulars of cruelty were required to be stated. This question was objected to by Miss Bandukwala, and to my mind, quite rightly. It was really speaking futile to expect the respondent to be aware of the intricacies of the law of pleadings. As can be readily seen, even her old Advocate seems to be blissfully unaware of this requirement of law. He had pleaded cruelty in the written Statement but particulars about the occasions and time of beating were not mentioned by him. Either the respondent had given him instructions. If the instructions were received by respondent had given him, it was incumbent upon him to incorporate them in the Written Statement because that was his professional duty. If he had received no instructions from the respondent as regards the particulars of beatings and cruelty, it was incumbent upon him to get those instructions; it was incumbent upon him to ask her relevant question in that behalf and to state those particulars in the Written Statement because even that part is a matter of his professional obligation. The Advocate evinces a degree of indifference or inefficiency or negligence if he does not ask such question to his client and does not secure appropriate instructions from the client in that behalf. I could understand such line of cross-examination if the respondent was a law graduate or a practising Advocate or where knowledge about such intricacies and technicalities was a proven or established fact. If such person had failed to give the particulars of cruelty etc. in the Written Statement, the above mentioned question asked to him or her might have been justified; but in the case of a layman as a client, it is a sheer futility to expect such knowledge or awareness of intricacies of the law of pleadings on the part of such client. To my mind, Miss Bandukwala was justified in objecting to this question and the learned Judge was not justified in overrulling the objection in the context of the facts of the case.

No doubt the reply was given by the respondent to this effect that she was aware of such requirement. To my mind, it is a meaningless reply. I do not mean that she was telling a lie; but I can certainly see that she was not knowing what she was telling and the learned Judge should have taken this into account having regard to her educational qualifications. She has just passed her S.S.C. and has spent few days in the College. She is not initiated to the niceties and intricacies of law, nor, in any case, the intricacies of pleadings.

Moreover, if you look at the relevant question and answer it is possible to come to the conclusion that what the witness was answering was an entirely the different thing. I would set out the question and answer verbatim.

“Q. You were fully aware when you filed original Written Statement that all particulars of cruelty to be alleged by you were required to be stated. What do you say?

(Miss Bandukwala says how the witness can say about it ?)

A. Yes, I was fully aware. I had told my Advocate all the incidents of cruelty.”

It will be, thus, seen that probably according to the witness, she was fully aware of the fact that she had told the instances of cruelty to her Advocate. She probably did not understand what she was asked about was the legal requirement. What she has stated is that she had told these instances to her learned Advocate. If this is so, it is a perfectly intelligible explanation. I may mention here that I have examined the reply given by her Advocate to the notice given to the petitioner’s Advocate and I have gone through the Written Statement drafted by him and I do not see that it is a particularly luminous piece of excellent drafting. Even an Advocate of average standing belonging to the civil bar would know that particulars of pleas such as fraud and cruelty have to be given if such pleas of fraud and cruelty are as grounds for divorce or as defence or as to the prayer for divorce. Even if, therefore, the client does not furnish the instances of cruelty the Advocate has to probe deeper into the matter and prevail upon his client to furnish him the instances or particulars of cruelty. In the instant case all that the learned Advocate Mr. Bhogani has done is that he has made a reference to cruelty and beating and has found it unnecessary to give any particulars about those pleas. This was the fault of the Advocate, penalty for which cannot be upon the client.

(b) The next position that was put to the respondent was that she had taken out the Chamber Summons only because of the legal advise that she received from her new Advocate (meaning thereby Miss Bandukwala). The witness has very appropriately answered the question by stating that she had taken out the Chamber Summons not only because of the legal advise but also because of the cruel treatment meted out to her by the petitioner and his family members. A further question was put to her viz. as to why the respondent had not stated in her Affidavit that she was taking out the Chamber Summons not only upon the legal advise but because she had suffered cruelty at the hands of the petitioner. The question was not disallowed but it was not pressed by the learned Advocate for the petitioner. To my mind, the question itself is meaningless. When the respondent stated in the Affidavit the instances of cruelty it did mean, in the ultimate analysis, that she was making a reference to them because she had suffered by virtue of those instances. It is meaningless expecting the person to say so additionally. It is not wrong to state in the Affidavit-in-support of the Chamber Summons that the respondent was taking out the Chamber Summons upon legal advice because she was justifiably doing so upon legal advise. It does not require a very fertile and sophisticated imagination to hold that but for the legal advise the respondent could never have taken out such Chamber Summons for the very simple reason that she is not introduced to the requirements of the procedural law.

(c) The next question is of the same type. The question is as to whether it was not true that only two reasons actuated the respondent to take out a Chamber Summons viz. (i) legal advise and (ii) the cruelty meted out to her. As mentioned above, this classification is on the face of it illogical and irrational. The Chamber Summons was taken out because of the legal advise but the facts she stated because she had suffered those facts.

(d) Then the respondent was asked whether it was true that it was because respondent’s Advocate received the notice of the petitioner’s Advocate dated 29-6-1984 that she took out a Chamber Summons dated 6th July, 1984. The witness no doubt stated that she wanted to take out a Chamber Summons even independent of the letter received by her Advocate from the petitioner’s Advocate. She further stated that she had decided to take out the Chamber Summons after she changed her Advocate. But she could not give the reason why there was some delay in taking out the Chamber Summons. To the question as to when the Schedule giving particulars of cruelty was prepared, she could not remember the date and she said so. I have examined the entire cross-examination on this point. To my mind it is a cross-examination of next to no consequences. What the facts present broadly is the following picture. The respondent had given instructions to her Advocate as regards the various acts of cruelty done to her by her husband. The learned Advocate thought it enough to mention the defence of cruelty in general. Evidently, either his time was too precious for him to pay attention to such details and particulars or was blissfully unaware of the requirements of the law of pleadings. Fact, however, remains that he just found it not necessary to mention the instances and particulars of cruelty in the Written Statement and remained satisfied by mentioning only the fact that the petitioner had meted out cruelty to the respondent and had given to her beating during her stay in the matrimonial home. Ultimately, a stage came when the respondent found it impossible to continue with the Advocate and she changed the Advocate. In all probability, Miss Bandukwala who came on the scene at the later stage must have discussed the inadequacy of pleadings with her client and at that time they might have felt that the Written Statement was inadequate and instances of cruelty should have been pleaded. A vague decision might have been taken to take out a Chamber Summons but because of the other demands of time the learned Advocate was unable to take out the requisite Chamber Summons in time. Evidence, she found from the letter of the petitioner’s Advocate dated 29th June, 1984 that the effect of not taking out the Chamber Summons was going to be disastrous and hence she look out the Chamber Summons almost immediately, i.e. to say, just within a week from the date of the receipt of the letter, Exhibit “M” dated 29th June, 1984. The Courts have got to be realistic about the fact that the Advocates are busy and it is not every time that the client can prevail upon the Advocate either to draft the pleadings in exact accordance with his or her wishes or to make application on the spur of the moment requiring the Advocate, thus, to be constantly at the client’s back and call. These are realities of life and the Courts cannot afford not to be alive to them.

I may say at this stage itself that there may be occasions on which pleadings as regards particular incident may be an afterthought, but inferences to that effect would be drawn generally in cases where there is no basis for the incidents in the original pleading. To be more concrete, if in the instant case, there was no plea of cruelty at all, a strong inference would arise that the attempt to plead cruelty at a later stage and an attempt to reinforce that plea by giving instances of cruelty was an afterthought. In the instant case, the basis for the plea of cruelty is very well laid down in the original Written Statement itself. All that remained were the particulars of the cruelty. From the very nature of things, the learned Advocate could not have pleaded cruelty unless he was informed by the respondent that cruelty had been meted out to her by the petitioner or by the members of his family with the tolerance of petitioner. It was, therefore, his duty to plead those instances in the original Written Statement. On the other hand, if the respondent had not given him the necessary information of the instances, he was duty bound to ask her about those instances because he should have known as a lawyer practising in the Courts would know that the plead of cruelty unaccompanied by the particulars of the cruelty is an averment in the air not acceptable to the Courts. In fact his duty would extend even to informing his client that he would not plead cruelty unless the particulars of cruelty were furnished to him, because mere plea of cruelty would be an exercise, more or less, in futility. Whichever way we take, we cannot but notice that this is the glowing instance of professional inadequacy and negligence and I find no reason why the respondent should pay penalty for the same by having her entire evidence relating to the instances of cruelty discarded. The respondent has said time and again that she had given instructions to her Advocate about the instances of cruelty and she did not know why he did not incorporate them in the Written Statement. To my mind, there can exist no reason why such a plea should not be accepted by the Court.

The reason why I have devoted quite a substantial portion of judgment to this aspect of the matter is that the learned Judge has disbelieved every instance of cruelty deposed to by the respondent mainly on the ground that it was not pleaded in the original Written Statement. I find no justification for such an approach and hence I will henceforth examine the evidence irrespective of the fact that the instances have not found place in the original Written Statement.

13. The respondent had pleaded in reality five instances of cruelty:-

(A) incident relating to beating allegedly given by the petitioner to the respondent wife because of her reply to his allegation of swindling by her father:

(B) Incident relating to beating given to her by her husband when she requested him to accompany her to temple early morning at 5 a.m. on a Shravan day;

(C) beating given to her husband when she refused to prepare two separate lists of the presents that she had received at the time of her marriage;

(D) the incident which may be described as the bottle-breaking incident;

(E) incident of mental cruelty consequent upon the incident that took place on the Laxmi poojan day on October 1976 about three days before the respondent took departure from the matrimonial home.

(A) (i) The first incident we may refer to as Allegation of Swindling incident. In paragraph 6 of her deposition the respondent had stated that her husband said to her that the respondent’s father had swindled the property left by the respondent’s grandparents and had, thereby, deprived her father’s brother and sisters of their shares (evidently in that property). The respondent states in her evidence that when she heard this remark from her husband, she said to him that even his own mother had inherited property from her own parents and that fact did not mean that the petitioner’s father had swindled his parents in respect of his wealth. She stated that upon hearing this, the petitioner slapped her.

(ii) The witness is cross-examined on this statement in paragraph 47 of her cross-examination. All that is put to her in this connection is that the incident was false and concocted and that her evidence of slapping was false. As usual she was cross-examined on the question as to why she had not pleaded that incident in the Written Statement and she naturally stated that she could not say as to why her Advocate did not find it fit to mention that incident in the original Written Statement.

(iii) It will be thus seen that there is next to no cross-examination on the point. As I see the story narrated by the respondent, there exists enough material for respondent’s cross-examination were the story not true. As for instance, it can be said that the reply given by the respondent to the petitioner’s allegation of swindling by her father is somewhat illogical. Such illogical reply may be justified by the fact that the logic is not the hall-mark of the ordinary house-wife. Even in our ordinary life we are not guided by the requirements of logic. This apart, there was enough material for the cross-examination of this witness on the question as to why she said to her husband that the legal share received by his mother from her parents did not amount to swindling by the petitioner’s father to his own father. If falsehood of statement was to be established, cross-examination could have been directed to the nature of the statement made by the wife in reply to that statement of swindling made by her husband. No such cross-examination is to be found.

In this connection, I may refer to the averments made by the respondent in her amended written statement. Her deposition as regards that incident is exactly the same as the averments made by her in the amended Written Statement (vide particular No. 17). It can be said that this by itself vouchsafes the truth about the allegation.

(iv) But a caveat was put by Mrs. Nanavati by pointing out that whereas in the amended Written Statement the respondent has mentioned that upon her reply the petitioner-husband gave her a severe beating by hand and that beating made the respondent lose her mental peace and ruined her health, in her deposition she remained satisfied by saying that he only slapped her and has not made any reference to loss of mental peace or running of her health at all. Miss Bandukwala pointed out that reference to this harassment and mental suffering has been made by the respondent in paragraph 13 of her Examination-in-Chief by stating that on 25th October, 1976 she informed her parents on the telephone that owing to the harassment and cruelty and owing to her mental and physical suffering it was unsafe for her to stay in the house anymore. I am not sure that Miss Bandukwala is quite right on this point. To my mind, if it was necessary to state the fact in her evidence that by virtue of the beating received by her at the hands of the petitioner at the time of the particular incident, she lost her mental peace and ruined her health, that fact cannot be said to have been deposed to by her atleast directly or specifically. But really speaking, I do not opine that such a statement is necessary in the evidence at all. If the husband gave beating to his wife and atleast that much fact is deposed to and proved, the fact that the wife suffered from the beating and lost her mental peace is a matter of inference by the Court, just as by any other reasonable person. The resultant loss of mental peace and the resultant physical and mental suffering from the acts of beating are not mere matters of evidence. I believe the Courts are not expected to forget that two and two make four. Even if that part of the fact was not pleaded, it could have been stated in the evidence and the evidence would be readily believed. The points is that the main incident which is some what complicated one has been deposed to by the respondent-wife in a correct manner as averred in the amended Written Statement and, to my mind, this itself should be considered as a guarantee for its truth.

This contradiction which is sought to be brought in the two statements, the severe beating averred in the Written Statement and the slap deposed to in the evidence, is, to my mind, an argument of hair-splitting. Whatever the instructions the respondent gave to her learned Advocate were put by the Advocate in the amended Written Statement in her own words. From the very nature of things the instructions must have been given by the respondent to her learned Advocate in Gujarati and they must have been reduced in the Written Statement by the learned Advocate in English. On the other hand, in the Court the respondent gave evidence in Gujarati which was interpreted to the Court in English. Miss Bandukwala invited my attention to ground No. 85 taken by her in the Memorandum of Appeal where it is stated that what the respondent deposed to in her evidence was “Mane Maro Hate”. This is readily understandable. To my mind, to make a distinction between severe beating and slapping is expecting too much of precision from lay-man.

The learned Judge has rightly held in this connection that this is essentially a case of word against word and normally I would have accepted his finding on this point on the ground that this is word against word. But what I find further is that instead of subjecting the respondent to appropriate cross-examination, contradictions in pleading and evidence which, to my mind, are contradictions of no consequence whatsoever are used as a shield. By and large, therefore, I would accept the respondents evidence in this behalf in preference to the evidence of the petitioner because as will be presently pointed out, the petitioner has presented his image to the Court as that of the supreme liar. Even the learned Judge who has proceeded to accept all his evidence almost hook, line and sinker has found it impossible to accept his plea regarding his assets and income. No doubt that part of judgment of the learned Judge has been appealed against and assailed by petitioner’s learned Advocate Mrs. Nanavati. But as will be presently pointed out, the petitioner’s evidence relating to his income from the property is the thirteenth strike of chronometer which belies all the previous twelve strikes. Since therefore I am required to choose between the words of the petitioner and the respondent, in the context of the evidence in this case I accept respondent’s plea that on this occasion the petitioner did give to the respondent at least a slap or two. Whether this amounts to act of cruelty or not as contemplated by the Hindu Marriage Act is a different matter. I, however, hasten to add that if the incident was to stand all by itself, I might not have held, perhaps, that there was enough justification for the respondent to leave the matrimonial home.

(v) The entire question is examined by the learned Judge in paragraph 61 of this judgment. The learned Judge has held that while the respondent has deposed to this incident, the petitioner has denied the same and hence it is word against word. The learned Judge has further observed as follows:-

“The incident is to be understood if at all it has happened in its proper perspective. The tempers of husband and wife had arisen high, and such incident happen ordinarily between husband and wife. There cannot be attached more importance than what usually occurs because no intention of either side can be read therein of causing cruelty to the other party to such an extent that the marital relation could come under strain”.

I very much appreciate the learned Judge’s reasoning. Normally, I would have accepted this position. But as will be presently pointed out, in the context of the social level that the parties are stationed at, the beating given by a husband to his wife, not out of fun but out of anger, cannot be dismissed as something of usual occurences between the spouses. Moreover, to my mind, read with the other incidents, this incident completes the behaviour of cruelty complained of by the respondent-wife against the petitioner.

(B) The second incident may be described as The Temple Incident on the Shravan day. What the respondent averred in the amended Written Statement in this behalf is as follows:-

(i) One Shravan morning in the year 1976, the respondent was told by the petitioner’s father to go to the temple at Bhuleshwar early in the morning at 5 a.m. The respondent requested the petitioner to accompany her as she was frightened to go to the temple alone and on this the petitioner gave her severe beating. In the Examination-in-Chief the respondent has deposed to the same facts.

x x x

(vi) The learned Judge has examined this incident in para 62 of his judgment. He has found the respondent’s evidence to be full of contradictions principally because in her Written Statement she has averred that her father-in-law asked her to go to temple whereas in the cross-examination she said that her father-in-law told his own wife. As mentioned above, I do not see any reason to disbelieve the respondent on this account. To my mind, both the statement are correct. When she said that she was asked by her father, she need not be taken to mean that her father-in-law directly told her. As it is customary in these communities, the father-in-law communicates to the daughter-in-law usually through others. If this position is realised, the apparent contradiction for the two statements of the respondent stands readily resolved and understood. I am, therefore, unable to agree with the learned Judge when he arrived at the conclusion that the incident should not be given much importance. In fact, I am not sure that he has totally discarded the evidence of the respondent on this point. Even the learned Judge has himself noticed the blatant contradictions in the evidence of the petitioner compared with the suggestion made on his behalf to the respondent as mentioned above.

This means that the respondent’s plea that she was given a beating by her husband on this Shravan day is made good by her.

(vi) Mrs. Nanavati argued that this is an allegation made against the petitioner’s father and her contention is that the respondent has done so knowing full well that her father-in-law was no-where alive to give evidence for disproving the allegation. I see no justification for this submission. The petitioner’s mother is very much alive. She could have given evidence in relation to this incident. She is directly involved in the incident. Moreover, petitioner’s mother is involved in many other allegations against the petitioner and against the members of his family. The death of the petitioner’s father gives no advantage to the respondent at all for avoiding evidence against her.

Differing from the view taken by the learned Judge, I hold that the respondent has proved the incident in question as also the fact that on that day she did receive the beating from the petitioner-husband.

(C) (i) The third incident may be described as incident relating to preparation of Two Separate Lists. Plea is that it occurred in the month of September 1976 when on one day the petitioner was instigated by his parents to order the respondent to prepare two separate lists of presents received by her at the time of her marriage; one pertaining to the presents received by the petitioner’s family and other relatives and another pertaining to the presents received by the respondent from her own parents and their relatives. The respondent’s case is that she refused to do so where upon the petitioner got flared up and assaulted the respondent. The respondent states that thereafter she did prepare the two lists and the list were handed over by the petitioner-husband to his father.

(ii) I may state here that the incident of requiring the respondent to prepare two lists is by itself not an act of cruelty. It is the act of the petitioner of assaulting the respondent upon her refusal to do so which constitutes cruelty. In paragraph 8 of her Examination-in-Chief, the respondent has deposed to the facts stated in the amended Written Statement. She has stated there that she asked the reason as to why these two lists were to be prepared and thereupon the petitioner slapped her. She has further stated that thereupon she prepared the lists and gave them to the petitioner who gave them to his own father.

It must be stated here that in the light of her evidence, this incident related by the respondent makes quite a consistent reading, Moreover, this incident finds some support in a strange quarter, viz. the fact that on the last date of their matrimonial life, the day on which the respondent left the matrimonial home, she was actually made to write the ornaments and articles that she received from her own parents. I will come to that part of the evidence presently. But I may state here that the story told by the respondent makes a plausible whole. The picture that emerges from these three incidents that we have discussed so far and from the three further incidents is that a systematic attempt was being made by the petitioner to make life difficult for the respondent and that when she ultimately left the matrimonial home, or was made to leave it, she was allowed to take only ornaments that were given to her by her parents. This explains why she herself directed to prepare two separate lists of the ornaments and articles etc., as deposed to by her. There is no cruelty involved in directing the respondent to prepare two lists but when she is asked to prepare the lists, she is bound to ask her husband as to for what purpose she was to prepare the lists. She says that she asked such question and that question enraged her husband resulting in a slap being administered by him to her. Unless the picture is disturbed in the respondent’s cross-examination, the picture is a consistent whole.

x x x

(v) This question has been examined by the learned Judge in paragraphs 63 and 64 of the judgment. In this connection, the learned Judge has stated that there was no reason for the respondent not to obey her husband when she was asked to prepare two lists, when the elders in the family desired to have two lists. The learned Judge has further observed that she refused to do so and that on account of that the petitioner assaulted her and that if at all the assault had taken place it was because of her own fault. The learned Judge has observed that beating in such cases would not amount to cruelty. According to him, cruelty as required by law for the purpose of divorce cannot be equated with normal acts of wear and tear of daily occurence and isolated in nature. The learned Judge has further observed that if the husband in such situation were to slap the wife, that could be regarded as something done in the heat of moment and cannot amount to cruelty. According to learned Judge, this incident is supposed to have taken place in the month of August 1976 and since the respondent left the matrimonial house as late as in October 1976, much importance could not be attached to this incident.

(vi) I am unable to appreciate this reasoning. I cannot agree that because the respondent refused to obey the petitioner’s orders, he was entitled to slap her or that in that particular situation such slapping would not amount to cruelty. I propose to discuss this aspect of question in a separate paragraph after I have examined all the instances of cruelty. But I may state at this stage itself that the learned Judge’s view that the respondent was not justified in refusing to obey her husband’s orders is not correct in the context of the facts of this case. What is to be noted is that according to the respondent the entire atmosphere of the house was becoming hotter and hotter for anything like her comfortable stay there and if in this atmosphere when the husband directed his wife, all of a sudden, to prepare two list of the ornaments that were received by her at the time of her marriage, she would immediately smell rat and ask her husband as to for what purpose she was asked to make such lists. The two lists would make no meaning as she could not have and need not have made any distinction between these two kinds of ornaments. Unless the person asking her to make such list had some ulterior aim in view of such a demand was meaningless. Now, this lady may not be and cannot be as intellectual as the learned Judge expects her to be; but she is not a fool. Atleast she has common intelligence to realise that whatever she is called upon to do is not without some purpose. This must be the reason where she must have refused to do so or atleast must have asked the reason for doing so. It is significant to note that the learned Judge has not disbelieved her when she stated that her husband asked her to write those two lists. The question then arises as to why, at all, the husband has denied the fact that he asked her to prepare the two lists. Had he stated that he had asked her to prepare the two lists and that she did prepare the two lists and hence no question of beating arose, it would be a question of word against word on the question of beating. But the respondent-wife has come out with a natural case which is borne out by its own consistency. Differing from the view taken by the learned Judge, therefore, I am of the opinion that the incident relating to these two lists is also made good by respondent. It follows that her evidence even of beating given to her must also be accepted.

(D) The fourth incident can be described aptly as the Bottle Breaking Incident. It really consists of four parts:-

(i) The meeting of the respondent’s father and uncle Chandubhai with petitioner’s father and their discussions with the petitioner’s father and their talk at the time of the meeting;

(ii) The incident of the respondent being locked out.

(iii) The incident of the breaking of the milk-bottle; and

(iv) The spreading of rumour by the petitioner’s family.

The incident, narrated as Incident No. 22 in the Written Statement, is as follows:-

(i) In the beginning of October 1976 the respondent’s father and her uncle Chandubhai came to meet the petitioner and his father at their house with a view to request them not to harass the respondent. The respondent has averred that the petitioner’s sister Kanakben and her husband were also present in the house at the time but the petitioner was not present. The respondent has averred that when the petitioner’s father was requested by the respondent’s father not to given beating to the respondent, the petitioner’s father stated to them that after all the petitioner was her husband and hence had every right to beat his wife because she was his wife.

She has further stated that when the respondent’s father and husband were leaving the house she accompanied him to the stair-case and when she returned she found the main door of the house to be closed and locked and in spite of her several knocks on the door, nobody opened it. Her son Anand was in the house at that time and was crying loudly. After some time petitioner’s sister Kanakben opened the door.

Thereafter, when the respondent rushed into the house, seeing Anand crying, to prepare milk for him in the kitchen, the petitioner came from behind and gave severe beating to the respondent. As a result of this milk bottle from her hand drooped down and broke. Upon hearing this, the petitioner’s father instigated the petitioner saying that the respondent had screamed because she wanted the neighbours to know that her husband was assaulting her. She further stated that, thereupon, once again, the respondent gave fist blows on her head and that as a result of this she was getting headache for ten days continuously and even then she was not given medical treatment for that purpose.

The next part of the same incident is narrated as Particular No. 23. It is averred that when the bottle broke, the petitioner’s father got hurt by a piece of the broken glass whereupon the petitioner and his family members spread a rumour amongst the neighbours in the building that the respondent has thrown a bottle at the petitioner’s father, that luckily a servant came in between and got injured while the petitioner’s father was saved. According to the respondent, this version was supported even by the petitioner himself.

All these four incidents are part and parcel of the same incident which occurred on one and the same day.

x x x

(vii) It is the third part of the incident which really matters. As stated above, the entire incident is stated by the respondent in Paragraph 9 of her depositions. If the incident was denied by the respondent wholly and if no other evidence was led by the petitioner it could be argued that it was a case of word against word; but the position here is somewhat strange. The fact that the petitioner’s father and uncle had come to the petitioner’s house on that day is admitted. The reason given for their coming is that they wanted petitioner to stay separately from his parents. As will be presently pointed out, this story of the petitioner smacks of clear afterthought. At all the relevant and material times this story is not as much as whispered about. One does not find a place for the same even in the petition although it is the most important part of the petitioner’s grievance against the respondent-wife. As a matter of fact a large part of the arguments in this Court on behalf of the petitioner-husband centered around this question as to whether the petitioner’s present contention relating to his wife’s demand for separate residence and business was a true contention. For the reasons which would be stated presently, I am of the opinion that there is no basis whatsoever for believing this part of the petitioner’s evidence which is clearly an afterthought. If that is the position, then question arises as to for what purpose the respondent’s father and uncle had come to the petitioner’s place on that particular day. They must have come to implore the petitioner and her father not to ill-treat and beat the respondent. It then stands to reason that respondent’s evidence in this behalf is more coherent. She states that the petitioner was not present at that time. He came later on. She states that he came from the back-door of the kitchen and gave her fist blows on her head and back from behind. She has not stated so but one can readily infer (not as a surmise but as a matter of reasonable inference) that when he came home and found that his wife’s father and uncle had come to plead on her behalf, he must have known that she had complained to them about the beating received the milk bottle to break and when he admitted that earlier also two or three times the bottle had broken, he was asked a pertinent question by him to give beating to her as deposed to by her. The story makes out a coherent whole.

The position would have been different if the husband had explained the entire situation at least in his cross-examination; but his cross-examination presents most anomalous picture. He was cross-examined with reference to the incident that took place after the departure of the respondent’s father and uncle. According to the petitioner, nothing happened thereafter; but he admitted that the milk-bottle broken on that day. He also admitted that the milk bottle had broken also on other occasions. He was asked as to why she remembered the particular day when the milk-bottle broke if nothing particular had happened on that day. The question obviously was to elicit from the petitioner husband that there was something special about that incident of that day’s milk-bottle breaking. If milk-bottles broke at many times and if the petitioner remembered only the particular incident of breaking of the bottle, there must be some reason why he remembered it. The learned Advocate for the respondent wanted to elicit from the petitioner the fact that something special occurred on that day. That something special might be that which was deposed to by the respondent-wife or it might be something entirely different, but something special it had got to be or else the petitioner would not have remembered that particular incident of bottle-breaking. The petitioner has admitted that this was not the first time for the milk bottle to break and when he admitted that earlier also two or three times the bottle had broken, he was asked a pertinent question by the respondent’s learned Advocated. The question was “why do you remember of the bottle having broken once in 1976?’ Mrs. Nanavati objected to the question but the objection was wholly unsustainable. The learned Judge has given some kind of reasoning for not allowing the question. But not only that I could not appreciate the reasoning, but even Mrs. Nanavati was wholly unable to justify her own objection to a most opposite question as also the reasoning of the learned Judge for disallowing the same. I see scantest possible justification for disallowing the question. To my mind the question was the most apposite question and by giving opportunity to the petitioner not to be subjected or exposed to such a question in cross-examination, in fact opportunity is made available to him to keep the truth away from the Court. As stated above, even Mrs. Nanavati was not able to justify before me the objection raised by herself. She could not explain to me as to what was meant by her when she stated that the question should be disallowed because the incident had been deposed to by the petitioner by way of denial of the allegation in the written statement. I have already referred to an unfair question asked by Mrs. Nanavati herself to the respondent and I have stated that such a question should never have been allowed. Nothing unfair was found in question when put by the petitioner’s Advocate but when the most apposite question is asked to the petitioner in his cross-examination, the answer he is allowed to evade by just disallowing the question. To my mind, this aspect has vitiated the evidence of the petitioner to quit a large extent.

(viii) The question then comes as to what should be done when an apposite question is disallowed resulting in truth being kept away from the Court, which position, in ultimate analysis, results into a very unfair benefit to the petitioner. Two alternatives are possible:

(i) sending back the matter for fresh evidence, or taking fresh evidence on the point here itself; OR

(ii) raising a strong adverse inference against the petitioner.

Having regard to the facts of the case, it is next to impossible sending the matter back to the trial Court or taking evidence afresh. This is particularly so because the petitioner is now made wise as to the answer it is in his interest to give to such question, if he is given second opportunity to answer the same. The only alternative, therefore, is to raise a strong adverse inference against the petitioner.

(ix) Mrs. Nanavati invited my attention to section 114 with particular reference to illustration- G thereto and submitted that this was the only provision under which adverse inference could be raised against the petitioner. Her submission was that this provision could not apply and hence adverse inference would not be warranted.

To my mind, there is some confusion in the reasoning. The illustration to section 114 of the Evidence Act are not and, from the very nature of things, cannot be exhaustive. Illustration-G is just one of the illustration for understanding the scope and thrust of the main body of section 114. In the instant case, if the learned Advocate for the petitioner did not want her client to reply the particular question legitimately put to him in the cross-examination, the only inference can be that the answer to that question would be inconvenient or damaging for the petitioner. In these matters it has got to be held that the interest of the client is represented by his Advocate and whatever is done by the Advocate is done by and on behalf of the client. Reluctance to give answer to a legitimate question on account of the objection taken by her Advocate is tantamount to his own reluctance.

Moreover, as a matter of fact there is no reason to hold that the said illustration-G does not apply. The illustration runs as follows:-

“That evidence which could be and is not produced would, if produced, be unfavourable to the person who witholds it.”

One should substitute the word ‘reply’ in place of the word ‘evidence’ and the word ‘given’ in place of the word ‘produced’ and one has the complete answer to this legal question. The illustration in that case would run as follows:-

“That reply which could be and is not given would, if given, be unfavourable to the person who withholds it.”

In the ultimate analysis one has to know that a reply given by witness in cross-examination is part of his evidence. The reply thus itself is an evidence. Not leading the evidence when it could be and ought to be lead must give rise to the adverse inference against the person who had to lead it.

(x) The petitioner’s cross-examination is continued on this point in paragraph 33 of his cross-examination as well. In that paragraph two important admissions have been elicited from the petitioner:-

(i) He admitted that Chandubhai, the maternal uncle of the respondent had come to his house once and that too in the year 1976 only. He, no doubt, stated that he did not remember the date of month of incident but he also stated that he did not remember for what purpose he had come. This means that his earlier statement in his Examination-in-Chief to the effect that the respondent’s father and uncle (Chandubhai) had come to persuade the petitioner to take separate residence is just not true. This aspect has great significance and bearing with relation to the petitioner’s present plea that the respondent had been insisting right from the beginning for having separation in residence and business from his parents.

(ii) Secondly, on that particular day on which Chandubhai had come to him, milk bottle did actually fall from the hands of the respondent and was broken. It is in this context that one has to see the importance of the questions asked to him in the cross-examination as to why he remembered the breaking of bottle on that particular day when on his own admission the milk bottle had broken on quite few occasions earlier. That question was disallowed and as pointed out above, great damage has been done to the respondent’s case going a long way to disable her from proving the incident of cruelty that had taken place on that particular day.

(xi) The petitioner is further cross-examined on the last part of this incident, in Paragraph 40 of his cross-examination. In that part of the cross-examination he has denied that anybody including his father was hurt by the breaking of the milk bottle. He denied the spreading of the particular rumour imputed to him, In fact he denied the very existence of the rumour alleged against him, viz, that the respondent had thrown the milk bottle at her father-in-law. He denied that his parents spread the rumour or that he himself supported the same.

Normally, it would have been word against word, because from the very nature of things, independent person could not be available for giving evidence about such incident. But when the petitioner’s Advocate gagged the respondent from asking the most crucial question, the adverse inference to be drawn against the petitioner must extend to the full extent and must support the respondent’s contention that some such effort was made by the petitioner’s parents to malign the name of the respondent. I my state here that this would be only the form of mental cruelty and not actual cruelty; but the evidence of the respondent regarding the second beating given by the petitioner on account of the breaking of the milk bottle and on account of the screaming on the part of the respondent shall have to be believed. The respondent has stated that when the milk bottle fell from her hand because of the beating given to her by the petitioner from behind she screamed loudly and when she screamed, the petitioner’s father instigated the petitioner to believe that she has screamed with a view to proclaim to the neighbours that she was being beaten by her husband and her in-laws. Upon this instigation, the petitioner gave her another beating. This part of her evidence relating to the second beating shall also have to be held proved, thanks to the thoroughly unjustified objections raised by the petitioners Advocate to a most legitimate and crucial question in the cross-examination.

(xii) The entire question had been examined by the learned Judge in Paragraphs 65 to 73. After discussion the evidence, the learned Judge has observed that so far as the behaviour of the father of the petitioner was concerned, that could have no direct relevance. This is what the learned Judge has further observed in this connection:

“The attempt of the respondent all along has been to show that the petitioner and his parents and family members all were against her and they acted in support of each other and at the instigation of each other. In other words, it is her case that the petitioner on his own did not assert and fell in line with the vengeance of the family members and either remained passive or acted at their instigation when she was troubled. It is, however, not shown as to what was the grudge of other family members against her.”

With respect for the learned Judge, to my mind, the entire approach is somewhat incorrect. In the first place, it is not correct to say that the behaviour of the petitioner’s father has no direct relevance. Had the petitioner decided every dispute in the house on merits and had he supported the petitioner at some time when he found that she was not in the wrong and pointed out to her, mistakes vis-a-vis her parents-in-law when she was in the error, it might be that the behaviour of the parents-in-law and the respondent’s father-in-laws would not be of much relevance; but what we find in the instant case is that according to the petitioner there were recurrent and persistent disputes and quarrels in the house and what is significant is that according to him in these quarrels between the respondent on the one hand and her in-laws on the other, he found the respondent to be on the wrong on every occasion.

The petitioner has minced no words in stating that in every such quarrel it was the respondent who was in wrong. I will reproduce his own words in his cross-examination. At the end of paragraph 50 of the cross-examination, he states as follows:-

“(Witness is unable to explain the reaction but says) I used to feel that the respondent was at fault, and used to try and pacify her.”

The petitioner has further stated in his cross-examination :-

“It is true that I did not oppose my family members. I did not do so because they were not at fault and I could not say anything.”

It is thus obvious that according to him every time when there was a quarrel, it was the respondent who was in the wrong and the conduct, approach and stance of each and every other members of his family was of the purest ray serene : Every reasonable man knows that this is just impossible, from the very nature of things. In these domestic disputes, by and large, it can never happen that only one party is in the wrong. I may go to the extent of saying that even on some occasion the respondent might be in the wrong; but from the very nature of things, it could not be that there was nothing wrong on the part of the petitioner’s parents and sisters. In the first instance, there was the generation-gap between the petitioner’s parents and the respondent. She has stated that she had been transplanted into the petitioner’s house having come from the other family having its own ways of thinking and own modes of behaviour. It hardly needs to be emphasised that in these matter the elderly persons in our country have their attitude which is more or less orthodox. I do not want to criticise the attitude. What I mean to say it that having regard to these facts and realities of life, one must realise that the conflict in the family life deposed to by the parties was understandable. They were the conflicts between the older generation and a member of the younger generation. In such conflict the respondent life companion could not say that his wife was always in the wrong. When his wife knows that every time he decides the question on merits, she may be unhappy about it, but normally she will not be feeling injustice about it. But when she finds that on each occasion he takes his parents side and refuses to see his wife’s view point, then the feeling that she gets of injustice not only of sorrow, and this feeling of injustice is the basis of the feeling of cruelty.

In this connection, it needs to be noted that it is not as if that every wife in this country gets a feeling of “cruelty” by virtue of the beating administered to her by her husband. In certain sections of the Society, even the beating may not be regarded as “cruelty”, whereas in other sections a mere harsh word may amount to cruelty. It is a matter of common knowledge that there exist some sections in the Society where the husbands beat their wives everyday. Nobody can say that those wives like it ; but still Sociologists agree that the feeling that they get is not one of injustice or cruelty ; the feeling is one of pain and sorrow only. Such wives take this beating in their strides. They take it as a matter of usual wear and tear of the matrimonial life; no sense of humiliation and injustice as such, in the serious sense of the terms, is generated in their minds. But in the case such as the present one it cannot be held that the husband’s conduct in supporting his parents and sister on each occasion against his wife, when they practised harshness towards her. If the parents-in law did acts of cruelty to her, physical and mental, and if the husband stood by them and not by her on each occasion, it must be held that the husband had himself practised cruelty against her.

(xiii) But in the instant case there is something even more than that meets the eye. At the end of Para 7 of the Examination-in-Chief itself it is stated by the petitioner that he did not remember why the respondent quarrelled with her sisters. If this is so, he cannot say that on each occasion the wife was in the wrong. And still he admits that he took his sisters side. No wonder the respondent got a justified feeling of injustice. This is a manifestation of mental cruelty on the part of the petitioner-husband.

x x x x

(xv) Curiously enough, in Paragraph 68 of his judgment, the learned Judge has once again blamed the respondent for not having mentioned this bottle breaking incident in the Written Statement. As a matter of fact, this objection will apply to each of the incidents of cruelty. The learned Judge has chosen some incidents for being disbelieved because of the failure on the part of the Advocate to mention the same in the original Written Statement. For those instances, he expected the original Advocate of the respondent to be examined.

I must say that in these matters, the Courts must go by the realities of life. The Court must taken judicial notice of the fact that normally speaking the Advocates are not examined for proving such matters. If the Advocate was examined, it would quite unlikely that he would have admitted the fact that during her instructions instances and particulars of cruelty were given by the respondent to him. And this would be so even if he had received such instructions. He might not have deposed to the correct factual position for the simple reason that by doing so he would have exposed himself to a charge of professional misconduct or professional negligence. While saying so, I do not have the slightest desire to denigrate the entire profession. There are members of profession known for their high standards of rectitude. But it is sheerly unrealistic presuming every member of the profession, practising in every Court, is possessed of such implacable rectitude.

(xvi) But Miss Bandukwala rightly invited my attention to another aspect of this matter. She pointed out that the learned Judge has fallen into an error of having double standards. The petitioner has raised a hue and cry, during the course of his evidence, that the respondent had been demanding separate residence from the month of June 1975. Curiously enough, this plea is spurted out for the first time in reply to the respondent’s Advocate’s letter dated 13th June, 1977-part of Exhibit ‘D’ collectively. But significantly enough, in the petition itself this fact is not stated at all. Mrs. Nanavati’s plea was that the letter dated 19th May ,1977 as also the petitioner’s Reply dated 15-5-1977 have been annexed as annexures to the petition and hence they must form part of the petition, meaning thereby that the plea must be said to be a part of the petition. I cannot accept this contention. A reply is given by the respondent in the Written Statement on the basis of and with reference to the pleas in the petition; not with reference to what is stated in the correspondence. If what is stated in the correspondence is adopted in the petition by any expression or reference to that effect, it may be that the Written Statement would require dealing with that plea. But there is no such expression or reference in the petitioner’s petition indicating that according to him it was the respondent’s old demand starting from the month of June 1975 that the petitioner should separate from his parents. There is not as much as a whisper about this allegation in the petition. The petitioner has stated that he had given instructions to his learned Advocate to make that statement in the petition; but he has not examined the Advocate for proving that fact and even then the petitioner has been believed by the learned Judge who has held been the respondent’s demand right from the beginning i.e.from June 1975. I have not the slightest doubt that the learned Judge command highest rectitude. But quite unconsciously, the learned Judge has exposed himself to the charge of double standard. I do not wish to suggest that is was incumbent even upon the petitioner to examine his Advocate. What I mean to is that in these matters Advocates are not examined. The Courts have to go by the practices in the profession which are very well known to the Bench as well as to the Bar. In Paragraph 70 of the judgment, the learned Judge has disbelieved the bottle breaking incident firstly because when it was pleaded the incident was about nine years old and secondly because it was pleaded after the death of the petitioner’s father, thus taking advantage of the fact that he could not be available for giving evidence. The constant thrust of the argument has been that the respondent had waited till the death of the respondents’ father and has chosen to make allegation against the petitioner’s father after his death so that he would not be available for evidence. I do not appreciate the learned Judge’s accepting such argument. It is not as if that in the correspondence as also in the original Written Statement, no grievance was made by the then Advocate of the respondent that petitioner’s father, mother and sister had been harassing her. Further, it is not the allegation made only against the father; it is made even against the mother and sisters who are very much alive. It is not as if that they have been examined by the petitioner and he was handicapped in the matter of examination of his father because the allegations were made against his father after his death. This entire approach on the part of the petitioner’s Advocate with which the learned Judge appears to have agreed is, to my mind, devoid of legitimacy and justification. It is true that there has been an omission in the matter of pleading of the instances of cruelty in the original Written Statement, but it is not as if that any prejudice is caused to the petitioner by virtue of the fact that these instance of cruelty are pleaded at the time of leading of the evidence. Moreover, if there was any prejudice caused, the amendment itself would not have been allowed. Significantly enough, against the order allowing the amendment of the Written Statement, no Revision Application had been filed by the petitioner nor any Appeal (which is provided for under the amended Civil Procedure Code) has been filed against that part of the decree. The cross-objections filed by the petitioner are restricted to the point of quantum of maintenance Not a word has been whispered against allowing of the amendment application. In these circumstances, to my mind, harping upon the fact that this incident has not been referred to in the original Written Statement or that the petitioner is required to give evidence about the same long after its occurrence, is of no relevance x x x (E) The last incident may be conveniently termed as the Laxmi Poojan Incident. This is really speaking an incident of mental cruelty. I may state at the very outset that this incident must be held to have been proved mainly by virtue of what has been stated by the petitioner himself in his cross-examination. The allegation about the incident, by itself, is somewhat vague. But the defect of vagueness is remedied by what is stated by the petitioner himself in the cross-examination.

(i) The nature of the incident is as follows:-

These parties come from a business community. Laxmi Poojan day is the first day of the Hindu New Year on which the new books of account are opened by this community. The Account Books are worshipped on that day and it is considered as a matter of privilege for members of the family to write something in the Books of Accounts on the opening page. This custom and practice is all a matter of admission. There is no dispute about it. On these days, all the members of the family remain present and those who are privileged to write in the books do so with awareness of the privilege. The grievance of the respondent was that thought she is the elder Bahu or rather, the only Bahu at that time in the family, she was not allowed to participate’ in the Laxmi Poojan ceremony. Now the expression ‘participation’ is somewhat vague. I myself had been asking Miss. Bandukwala repeatedly as to what the respondent meant by participation, Miss Bandukwala stated that by participation means that she was not allowed to write in the new Account Books which was the privilege for the important members of the family. The respondent gave evidence stating that though she was allowed to remain present at the time of the ceremony of Laxmi Poojan and though her sister-in-law and their husbands were allowed to write and did write in the Account Books, she was neither called upon nor allowed to write upon in the new Account Book. Question is whether this is what she meant by participation”. If this was the only evidence and if it was denied by the respondent, it would be just word against word and would throw no light upon what she meant by “participation”. But the point is that the respondent’s evidence in cross-examinations extremely significant. From his cross-examination, it is clear that so far as the petitioner was concerned, he had no difficulty in understanding the meaning of the expression, “participation”. I will set out that part of the evidence verbatim.

“Ques. : Who were the person who participated in the Laxmi Poojan In October 1976?

Ans. : My father, my mother, younger brother, 3 sisters, their husbands and children and myself. I now say my wife and my children were also present. None of the persons present had objected to the presence of the respondent at the function. It is not correct to say that at the time of Laxmi Poojan everyone writes something in the Account Books. At the time of Laxmi Poojan in October 1976 my father, myself, my younger brother and two sisters Kanakben and Taruben wrote in the books. It will not be possible for me to find out these books of 1976.’

From the above deposition it is clear that even on the petitioner’s own showing the respondent was allowed only to remain present at the time of incident. She was not allowed to ‘participate’. This is made clear by the petitioner when he states further as to who wrote into Accounts Book. He has stated that his father, he himself, his younger brother and his two sisters wrote in the books. The name of the respondent has not been mentioned in this array of the ‘participants’.

This is precisely the respondent’s grievance. She was the only Bahu in the family. She could justly claim a prime place in the family and, still, everybody is allowed to write in the book but not her. There exist many people who might give scant importance to such things which they consider to be trivialities of life; but these parties before me do not belong to that category. As for them these incidents are of great importance and they affect their ego to a substantial extent. If their ego is hurt on such points, the wound is deep and the feelings of the persons such as the respondent would be that a cruel treatment has been meted out to her by her exclusion from such important function.

(ii) Mrs. Nanavati argued that this is a trivial incident and no importance should be attached to the same. I personally may not be believing in any such religious rituals and hence may not attach any importance to the same. But I have got to be alive to the fact that there is a large number of people who think these incidents to be a matter of grave substance; not a matter of mere triviality. Mrs. Nanavati was not able to say that these people do not belong to that class. The very fact that these people worship the Books of Accounts, spend hours together on the ceremony, that in fact so many people are invited to the function and that in their presence privilege is given to the members of the family to subscribe their writings on the first page of the Account Books means that they attach great importance to such rituals and functions. If outsiders are allowed to take part in the function he will feel it a matter of pride. If an important member of the family is excluded from such participation in the function, it would hurt him deeply. To my mind, this is an incident of mental cruelty and it must be held that the petitioner’s own evidence goes to prove the allegation made by the respondent in this connection.

(iii) But in the instant case the cruelty does not consist merely of preventing the respondent from writing in the books. The reason why she was prevented is important. The respondent has stated that her father-in-law and the sister-in-law stated that the respondent was an ill-starred woman and hence she should not be allowed to participate in the Pooja. According to her, this was the reason why she was not allowed to write in the books and was thus prevented from participation. Now if the fact that the respondent was not allowed to participate in the pooja except by being allowed to remain present there is admitted, then the respondent’s version regarding the reasons for her not being allowed to do so has got to be accepted unless some other reasonable reason is advanced by the respondent. The respondent has not given any reason for that at all and it is in this connection that the examination of the petitioner’s sister would have been of great importance. Respondent’s allegation is that they stated that the respondent was an ill-starred woman and their view prevailed upon the petitioner. She stated that the petitioner stood by them. It thus appear that he made no effort to allow the respondent to write in the books. This means that he must have agreed with his sister that the respondent was an ill-starred woman. This certainly is a matter of great mental cruelty for a Bahu in a respectable family. If the sister did not say so they should have been examined by the petitioner. He has not done so. No adverse inference is raised by the learned Judge on this account but he raised adverse inference against the respondent when she did not examine her father for proving the first part of the incident on the day of the bottle-breaking. I appreciate Miss Bandukwala’s submission in this behalf.

(iv) In paragraph 74 of his Judgment, the learned judge has blamed the respondent and his Advocate on account of the typographicial error committed by her typist. In the amended Written Statement, instead of using the word ‘Respondent’s father-in-law, the words used are petitioner’s father-in-law. Obviously, this was a typographical error which had escaped the attention of the learned Advocate of the respondent. The fact that this is a typographical error is fairly conceded even by the petitioner’s learned Advocate and this could not be otherwise because the entire context shows that this was patently a typographical error. Even the learned Judge has stated that he was prepared to assume that this was a typographical error but he stated further that these mistakes which have occurred in the allegation at different places go to show that the allegations were made in a casual manner and they were not coming from the bottom of heart. I see no justification for such observation. It may be that the typist was not very efficient. Efficiency is not a commodity abundantly five efficiency prevalent in these days. In fact all of us are pulling our hair on that account. When there are so many errors committed by the typist one error or the other is bound to escape the attention of the Advocate upon whom is imposed the task of correcting the errors. No inference can be drawn against the party on account of such typographical errors committed by the typist of her Advocate.

(v) When the petitioner named the persons who wrote in the Account Books, he was asked whether he could produce the relevant Account Books for the year 1976-77. If those books were produced, they would show as to who were the persons who were allowed to write in the Books of Account on the first day of inaugaration but he stated that he could not produce the books of Account. The learned Judge has stated that he was not called upon to produce the books. In my opinion this observation has no justification because the petitioner stated in so many words that he could not produce the Books of Account and hence it would have been meaningless on the part of the respondent’s Advocate to call upon the petitioner to produce that Book of Account. What escaped the attention of the learned Judge was that the petitioner belongs to a business community. The books belonged to his business and under the Income-Tax the books have got to be maintained for a minimum period of eight years although they are generally maintained for a longer period. The period of eight years would be over in October 1985. It is, therefore, impossible that the petitioner would have destroyed books by the time his evidence was recorded. But the point is that he has not stated that he had destroyed the books. He has just blankly stated that he could not produce the same, meaning thereby that he was reluctant to produce them. The learned Judge has noted that the relationship between the respondent on the one hand and the remaining members of the family, that is to say the petitioner and her in-laws was very much strained at that time. He was in fact reading between the lines and very rightly so. It appears that the respondent was not allowed to write in the books because of the strained relations. If that is so, it is just a small step to the further conclusion that she must not have been allowed because according to her in-laws she was an ill-starred woman. The respondent said them in so many words. No respectable Hindu woman will say so in public unless she is smarting under it. It does not require a fertile imagination to picture the situation when her in-laws might have given to her such taunts. The respondent had certainly led evidence enough at least to require the petitioner to examine his sister or mother to prove that no such thing was over said by them or that she was not prevented from writing the Account Books on that ground or on any other ground. In this connection, the learned Judge has observed that assuming that the respondent was not allowed to write the Account Books, that was the result of that atmosphere and that not allowing the books of Account is a matter of triviality if seen all by itself. In the context of the facts of this case, if the woman folks of the house openly condemned the ill-starred women and go to the extent of preventing the only Bahu of the family from subscribing writing to the Books of Account it would be a great mental cruelty for her and the incident cannot be dismissed as an incident of triviality.

x x x

15. It will be seen that out of the six or seven instances of cruelty allowed to be pleaded against the petitioner, at least five are sufficiently proved by the respondent. All the above incidents, excepting the Laxmi Poojan incident, show that the petitioner was in the habit of beating his wife. This incident shows that beating was not a stray incident. This incidents show that whenever something enraged him he just did not hesitate to assault his wife. Question is whether this does not amount to an act of cruelty.

16. Now, on this point I must state that this question cannot be considered in the air. There are sections in the community where the wives do not consider that every beating given to them by their husband are acts of cruelty within the contemplation of the Hindu Marriage Act. Nay, we are told by men of literature that category of women folk is not unknown where the women consider the beating given to them by their husbands to be the indices of manliness of their husband. But you cannot apply this criterion to every class of women. As the education spreads and as you go higher and higher up in the strata of society, economically and educationally, the resentment of the woman folk against these acts of beating becomes more and more noticeable. A maid servant in the house of an educated family may not resent occasional beating given to her by her husband and on that account she might not rush to the Court for getting divorce; but if a lady of the house, belonging to the higher strata of the Society having had some education and affluent one is assaulted by her husband, she would keenly resent to them and would treat it as an act of cruelty, even if the beating by the husband had some justification. One may, therefore, consider her state of mind if she feels that there was no justification for such assault. This is the reason why I have observed above that the examination of this concept of cruelty cannot be considered in the air. It has to be considered with reference to the status of the parties to the litigation, their station in life and the position that they occupy in the Society. Here in the instant case, both the parties claim to have come from a very great Khandan. The respondent claims that she come from a Khandani family. The petitioner has come out with a rejoinder saying that he also belongs to a khandan. If that is so, I can see every justification for believing that the respondent would be feeling deeply aggrieved and humiliated by the beating administered to her by her husband in the presence of her mother-in-law and sisters-in-law. In addition to that we find the grave mental cruelty meted out to her at the time of the incident of Laxmi Pooja. In any event so far as the beating part is concerned, there is every reason to believe that she must have been feeling life thoroughly unbearable in the matrimonial home if such acts of cruelty were meted out to her days in and days out. She, therefore, decided to leave the matrimonial home and not to return to the same unless she got an assurance of such incident not being repeated. The Court will not hesitate to hold that in such case she was in reality driven out of the house. This is not a case of desertion on her part. It is a clear case of constructive desertion by the husband himself. If this is so, the petitioner’s plea of desertion by the respondent must fail.

 x                       x                       x

 

19.     This brings me to the question of validity of the order passed by the trial Court, confirmed (apparently) by a learned Judge of this Court disallowing the respondent's Written Statement to be amended with respect of some of this alleged instance of cruelty.
 

As already mentioned in Para 9 above that out of the total number of 25 Particulars, only Particulars at Item Nos. 14,17,19,20 & 22 to 25 have been allowed by the learned Judge. Remaining particulars have not been allowed to be pleaded by amendment of the Written Statement. Against that part of the Order, C.R.A. No. 454 of 1984 was filed by the respondent Wife. Rule, it appears, was issued by a learned Single Judge of this Court on the said Application. Another learned Single Judge (S.J. Deshpande, J.) discharged the rule by his Judgment and Order dated 27-2-1985.

The plea of Miss Bandukwala is that the order of the learned trial Judge refusing to allow pleading of some of the particulars of cruelty is unsustainable and that part of the order should be set aside by me in Appeal and further appropriate order giving liberty to the appellant to lead evidence in relation to those particulars of cruelty should be passed.

20. As will be discussed presently, out of the disallowed items of particulars Nos. 1 to 13, 15, 16, 18 & 21 I find no justification for not allowing Items Nos. 3,4,6,7,12,16,18 & 21 at all. I would have found no difficulty in setting aside that part of the learned Judge’s order on the Chamber Summons at all because I see no justification for such order.

But the difficulty arises, because that order has been apparently confirmed by a learned Single Judge of this Court (S.J. Deshpande, J.) in C.R.A. No. 454 of 1984. Mrs. Nanawati understandably argued that this judgment of the High Court constituted res judicata so far as this question was concerned.

I have grave doubts as regards the plea that the judgment of S.J. Deshpande, J., amounts to res judicata in this Appeal. In my opinion, it would be res judicata only in the trial Court, not in the this Appeal. The order on the Chamber Summons was not an appealable order. The order passed by a Single Judge of this Court in the exercise of his revisional jurisdiction cannot attract such finality as is attracted by an order passed by this Court in Appeal. I have read the judgment of S.J. Deshpande, J., more than once. One of the reasons given by him for discharging the rule is that no such jurisdictional error was committed by the learned trial Judge as could be corrected by this Court in its revisional jurisdiction. If this is so, then the question is still at large and I can deal with it in my appellate jurisdiction.

But it was argued that the learned Judge has confirmed the trial Court’s order also on merits. E.g. He has held that the particulars disallowed relate to the harassment meted out by the other members of the petitioner’s family, not by himself. It is also held that the particulars allowed were sufficient to constitute cruelty, if they were proved, and that, hence, it was unnecessary multiplying the instances of cruelty.

With respect, the view is quite unsustainable. If harassment resulting in cruelty is meted out by the respondent’s in-laws in the petitioner’s presence and if the latter stood by it, it was a clear case of cruelty by the petitioner himself, at least mental, if not also physical. Likewise, it is an inarguable view that not because some particulars and instance are allowed to be pleaded, pleading of other particular and instance need not to be or ought not to be allowed. With respect, to my mind, such proposition of laws needs just to be stated to be rejected. As seen above, I have hold that some allegations of cruelty have been proved by evidence whereas some others have not been established. Same might be the position about the other instances disallowed by the learned trial Judge.

Moreover, one cannot lose sight of the fact that in addition to the effect of individual instances of proven cruelty, the Court is also required to take into the account the total impact of all the proven instances of cruelty. This will be particularly so about the several instances of mental cruelty. For instance, just one instance of physical beating may be sufficient for a decree for divorce, but just one instance of harsh word on the part of the husband may be described as usual wear and tear of married life. But when such instances occur repeatedly, it becomes harassment and cruelty, looked down upon by the Hindu Marriage Act. In such cases, you have to see the totality, not only the individual acts of cruelty. Preventing the respondent from making averments as regards some act of cruelty and not the others is, therefore, devoid of any justification in law.

With respect, therefore I am unable to agree with the learned Single Judge’s order based upon the view mentioned above.

21. However, Mrs. Nanavati’s contention that the learned Single Judge’s view constitutes res judicata, not only in the petition during the trial but also in this Appeal, has got to be answered. In my opinion such a view is not acceptable even on first principles. I have mentioned above that one of the reasons given by the learned Judge for discharging the Rule in the Revision Application was that no jurisdictional question was involved. Moreover, the decision was given at an interlocutory stage. It is, therefore, possible to take the view that according to the learned Single Judge he had no jurisdiction to interfere with the order on the Chamber Summons because no jurisdictional error was involved. If that is so, the plea or res judicata cannot be raised at all, because res judicata is constituted by the decision of a Court with jurisdiction; not by the decision of a Court which holds that it has no jurisdiction.

22. That apart, the decision could not constitude res judicata even otherwise. The decision was given at the interlocutory stage by the trial Court. The Revisional Application was the continuation of the said proceedings. This means that the decision of the trial Judge became final at the interlocutory stage. In the eyes of law, this order on the Chamber Summons forms part and parcel of the final decree passed by the trial Court. That decree is manifestly appealable. It should follow that every part of the same must be held to be questionable in Appeal. In my opinion, the fact that some part of the same was not interfered with by the Court in its revisional jurisdiction should make no difference in principle. The entire matter is open before the Court for having a second look at and every interlocutory order passed therein can be set right by the Court if doing so is found necessary in the interest of justice.

                 x                       x                       x
 

33.     It was, however, urged that now that I am allowing the Appeal and dismissing the petition for divorce I have no jurisdiction under section 25 of the Hindu Marriage Act to award any maintenance to the respondent and to the child.
 

I cannot accept this contention. In the first place, In my opinion the plain reading of section 25(1) of the Act leaves no scope for such view. Said section 25(1) states that:-
  

" Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband..........order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum..........as may seem to the Court to be just.....                             .
 

In my opinion, the employment of the word ‘any’ which is under scored by me, followed by the word “decree”. Leaves no room for doubt that maintenance can be ordered whether the petition for divorce be dismissed or not. In fact the jurisdiction is not confined to cases where the petition is only for divorce. It may be a petition for judicial separation. It may be for a declaration that the marriage was a nullity. Contention before me was that unless a decree for divorce is passed the Court cannot exercise its jurisdiction under the Act. I see no justification for such a view. Whenever a Court is examining the question whether the decree for divorce of judicial separation or annulment of marriage should be passed or not, the Court is exercising its jurisdiction under the Hindu Marriage Act and under no other Act. I see no reason to restrict the expression “any Court exercising the jurisdiction under this Act” or the expression “at the time of passing any decree” to a case where a Court is passing a decree for divorce only and to no other cases. A decree would be passed for judicial separation and still maintenance can be granted. A decree may be passed for restitution of conjugal rights in favour of a wife and still maintenance may be granted. A decree may be passed refusing both the above reliefs and still, in appropriate cases, maintenance may be granted on the application of one of the spouses against the other. On 1st principles and on the interpretation of and upon the plain reading of section 25, I find no justification for subjecting section 25 to strict interpretation.

34. Quite a few Authorities were sought to be cited by Mrs. Nanavati in support of her contention that a different view was taken by some other Courts. According to her, there are quite a few decisions of Single Judges of this Court taking the view that if in a petition for divorce a Court does not pass a decree for divorce in favour of the petitioner, the Court has no jurisdiction to grant the relief in the nature of permanent alimony contemplated by section 25 of the Hindu Marriage Act. I will make a passing reference to those Authorities presently, but at this stage I may refer to the judgment of a Division Bench of this Court, to which my attention was invited by Miss Bandukwala, Shakuntalabai Sahebrao Pawar v. Sahebrao Rambhau Pawar, 1976 Mh.L.J. Page 513.

In that case the question had arisen both under sections 18, 24 and 25 of the Hindu Adoptions and Maintenance Act, 1956 as also under section 25 of the Hindu Marriage Act, 1955 with which we are presently concerned. I am happy to say that precisely the same view which has been articulated by me above has been voiced by the Division Bench (G. N. Vaidya and B. Lentin, JJ. ) in the said Authority. This is what the Division Bench has observed in Para 24 of his judgment:-

“The word “decree” in section 25 of the Hindu Marriage Act can mean only a final order adjudicating upon the rights of the parties to a petition under the Hindu Marriage Act and it must, therefore, include a decree dismissing the petition which is appealable in the same way as the decree granting divorce or judicial separation and restitution of conjugal rights or annulment of the marriage. We are unable to find any reason for holding that the decree which is contemplated in section 25 is only a decree granting the relief asked for in a petition and not one dismissing a petition. This appears to be the basis of the above Madras decision and also the decision of the Mysore High Court in Muniratnam v. Shantamma and of the Rajasthan High Court in Devki v. Purshottam. In some of the above decisions, the remedy under section 25 given to either of the parties for making an application for permanent alimony and maintenance is described as ancillary or incidental to the main petition. But, however, it is described, there can be no doubt that section 25 provides a remedy by a simple application, in addition to other remedies which may be open to a wife such as the remedy under the Criminal Procedure Code or a remedy by way of a suit under the Civil Procedure Code. Section 25 must be, therefore, considered party substantive and party procedural, whether it is described as incidental or ancillary or supplementary or complementary to the main proceedings under the Hindu Marriage Act.”

35. My attention was not invited to any other subsequent Authority of this Court of a Division Bench taking a contrary view. On the other hand, Miss Bandukwala invited my attention to an unreported judgment of Vaze, J., taking precisely the same view as has been taken by me above.

36. All the other Authorities of this Court taking a contrary view are earlier decisions of Single Judges. Hence, the view expressed by those judgments must be deemed to have been over-ruled by the above mentioned Division Bench of Vaidya, Lentin, JJ. However, similar contrary view has been taken by the two Division Benches of other Courts, one of the Gujarat High Court and the other of the Calcutta High Court. Since this matter would not rest here and since the Appeal Court may be inclined to re-examine the above mentioned view of the Division Bench (Vaidya, Lentin, JJ.) it is worthwhile discussing the ratio of the Division Bench Judgments of the Gujarat and Calcutta High Court. I will thereafter also refer to the two judgments of the Single Judges of this Court which have followed the above mentioned Division Bench judgment of the Gujarat High Court.

(a) The 1st Judgment is of the Gujarat High Court , Kadia Harilal Purshottam v. Kadia Lilavati Gokaldas, by K.T. Desai, C.J. and V.B. Raja, J. I may mention here that the subsequent two judgments of the learned Single Judges of this Court (65, Bombay Law Reporter, page 441, decided by Shah J., and 63, Bombay Law Reporter, page 676, decided by Patwardhan J.,) follows the reasoning of this judgment of the Gujarat High Court. Hence, the examination of the judgment of the Gujarat High Court will be more or less enough to explain the reason why I am unable to follow the reasoning of the above mentioned two learned Single Judges of this Court. This is apart from the fact that I am bound by the judgment of the Division Bench of this Court Vaidya, Lentin, JJ., in Shakuntalabai v. Sahebrao, referred to by me above.

In the case before the Gujarat High Court, the husband’s petition for restitution of conjugal rights was dismissed by the trial Court and the Appeal against the same was dismissed by the Appeal Court. The respondent/wife thereafter made an application under section 25 of the Hindu Marriage Act for permanent alimony and the District Judge, who heard the application, awarded a sum of Rs. 40/- per month to her as permanent alimony. In the Appeal against the said order, the argument which went home to the Court was that when no decree for restitution of conjugal right is passed or when no decree giving the reliefs contemplated by the Hindu Marriage Act was passed, the Court had no jurisdiction under section 25 of the Act to grant permanent alimony.

The Division Bench accepted this argument. If held that the words “at the time of passing any decree or at any time subsequent thereto” in section 25 mean at the time of passing any decree of the kind referred to in the earlier provisions of the Act and not at the time of dismissing the petition for any of the reliefs provided in those sections or any time subsequent thereto. It was held that the expression “any decree” does not include an order of dismissal.

With great respect, I am unable to accept this view even on 1st principles (apart from the fact that a contrary view was taken by the above mentioned Division Bench Judgment of this Court). In my opinion, to hold that the words “any decree” employed by said section 25 imply a decree for the reliefs contemplated by the Act constitutes-

(i) reading into the section the words “decree for the reliefs contemplated by the Act”.

(ii) for no justifiable reason, constriction the jurisdiction of the Court in the matter of grant of permanent alimony.

In my opinion, the words “any decree” are not followed by any restrictive words at all, and there is no justification for reading those words into the same. In my opinion, with great respect, the error in the reasoning lies in the fact that the learned Judges have, unwittingly, imported into the word “decree”, the restriction contemplated by the initiating words of the section “any Court exercising jurisdiction under this Act”. Those words pertain to the identity of the Court and not to the jurisdiction of the Court. What the words of the section mean is that such a decree for permanent alimony can be passed by any Court under the Hindu Marriage Act. This may or may not restrict the jurisdiction of the other Court to grant permanent alimony, independent of this section. But the point is that the Court exercising the jurisdiction under it are specifically given this power, probably in addition of the one had by the Court, say, under the Criminal Procedure Code or under the Adoptions and Maintenance Act. These words “any Court exercising jurisdiction under this Act” do not imply that in order to claim jurisdiction for granting permanent alimony the Court must grant relief in the nature of divorce or restitution of conjugal rights or judicial separation or declaration of nullity of the marriage. This position is made clear beyond any doubt, in my opinion, by the employment of the word “any” by the said section as a description of the word “decree” employed by the section.

Moreover, I know of no principle of interpretation of statue which enjoins upon the Court the duty to give to this section a restrictive meaning. As is well-known, the Courts are first required to interpret the section with reference Court to the litera legis. If the sententio legis is clear from the litera legis, no further inquiry is required to be made by the Court into the question as to what was really meant or contemplated by the provision. It is only if there exists any ambiguity about the litera legis that the Court is required to embark upon the inquiry into the sententio legis of the statute.

Moreover, even otherwise the construction put upto the section by the Division Bench in Shakuntalabai v. Sahebrao is more acceptable having regard to the intendment of the section. A Court which has seen and examined the Court best suited for consideration of the grant of alimony to a particular spouse. That is the reason why instead of driving a particular spouse to initiate another fresh proceeding, permanent alimony is provided for in favour of the spouse at the hands of the same Court in the same proceedings. I see no particular justification for the view that the Court has jurisdiction to grant alimony when divorce is granted, but not when divorce is refused. In both the cases, the Court has examined the entire evidence and had before itself the entire picture of the matrimonial conflict.

I must mention here that if the above mentioned Division Bench Judgment in the case of Shakuntalabai v. Sahebrao was not there, I would certainly have referred this question to a Division Bench because of the opinion expressed by the Gujarat High Court, which is entitled to higher respect even though it is only a persuasive precedent. However, in view of the fact that the question is now finally set at rest by the above mentioned Division Bench Judgment in Shakuntalabai v. Sahebrao’s case, it is unnecessary for me to pass any such order.

(b) The two Authorities of the Single Judges may be referred to very cursorily. In 65, Bombay Law Reporter page 441, Shantaram Dinkar Karnik v. Malti Shantaram Karnik, it was held by Shah, J., that the Court dismissing the application for divorce filed by the spouse has no jurisdiction to grant permanent alimony to the respondent. Similar view was taken by Patwardhan, J., in 63, Bombay Law Reporter page 676, Shantaram Gopalshet Narkar v. Hirabai Shantaram Narkar. The 1st view is directly based upon the above mentioned Gujarat High Court Judgment. The view of Patwardhan, J., 63 Bombay Law Reporter page 676 strikes a slightly different note. It is held in that case that the existence of a decree is a condition precendent to the exercise of the jurisdiction under section 25(1) of the Hindu Marriage Act, 1955. The learned Judge has held that if there is no decree, the ancillary relief for permanent alimony under section 25(1) will not be available to the applicant.

With great respect, I cannot agree with this reasoning. In my opinion, there is no justification to hold when the petition is dismissed, there is no decree passed by the Court. It may be that there is no decree passed by the Court granting relief, but a decree does exist dismissing the petition which claimed the relief. In such petition there may be a decree for costs. But that apart, mere decree of dismissal is a decree. The meaning of the word “decree” under the Hindu Marriage Act is not different from the meaning of the expression defined under the Civil Procedure Code. In fact section 21 of the Hindu Marriage Act leaves no room for doubt that all proceedings under the Hindu Marriage Act have to be regulated, as far as may be by the Code of Civil Procedure, 1908., Section 2(2) of the Civil Procedure Code defines a decree and that definition of the word “decree” has got to be read into the expression “decree” employed by the Hindu Marriage Act, in the absence of the special meaning being given to the word “decree” under the Hindu Marriage Act. There can be no other meaning capable of being ascribed to the word “decree” under the said Act, except the meaning given to it by the Civil Procedure Code. Section 2(2) of the C.P.C. defines the word “decree”-

“as the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy…”

To hold that when a petition for divorce is dismissed, there exist no decree by the Court exercising its jurisdiction under the Hindu Marriage Act is, with great respect, a fallacy.

(c) I may mention here that the view taken by the Division Bench of the Gujarat High Court is also taken by another Division Bench of the Calcutta High Court in , Minarani Majumdar v. Dasarath Majumdar, as also by the two Single Judges of the Rajasthan High Court in , Smt Devki v. Purshotam Kewalia and , Darshan Singh v. Mst. Daso. I have noticed that those views are based more or less upon the view of the Gujarat High Court. Moreover, I find no particular discussion in these authorities on the question as to why the words “any decree”employed by section 25(1) should be subject to a restrictive interpretation as is done by the Gujarat and Calcutta High Court.

37. The result is that the Appeal succeeds and hence the same is allowed. The decree for divorce passed by the lower Court is set aside and the petition for divorce is dismissed. The Appellant will be entitled to the costs of this Appeal.

The respondent’s cross-objections are dismissed with costs.

The respondent/husband is directed to pay the amount of maintenance at the rate of Rs. 1500/- per month to the Appellant/wife along with Rs.500/- per month as a sum payable to the child, Anand. This payment will be made until any order modifying or annulling the same is passed by any other      Competent Court.
 

Likewise, if there are any arrears of maintenance payable by the petitioner/husband to the respondent/wife for any part of the period during the pendency of this Appeal, the same shall be paid by the petitioner to the respondent forthwith.