It will not be open to the husband to rely on allegations not contained in the petition for proving the ground of cruelty.

Undoubtedly if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. But in considering the application of this doctrine to the facts of a particular case Court must bear in mind the other principle that consideration of form cannot override the legitimate considerations of substance.

If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both the parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."

In my judgement it will not be open to the husband to rely on allegations not contained in the petition for proving the ground of cruelty.

Bombay High Court

Smt. Alka Bhaskar Bakre vs Bhaskar Satchidanand Bakre on 17 January, 1990

Equivalent citations: AIR 1991 Bom 164, 1990 (2) BomCR 388, (1990) 92 BOMLR 255

Bench: A Agarwal

1. Being aggrieved by the judgment and decree dated 27th August, 1966, by his Honour Judge S.F. Rego, of the city Civil Court, Bombay decreeing the petitioner-husband's petition for divorce under S. 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955, for divorce on the ground of cruelty and desertion, the original respondent-wife has preferred the present appeal.
2. The parties to the marriage hail from a middle class educated family. The father of the wife was the head of the department of Sanskrit in Ruia College, Bombay, whereas the father of the husband was a retired school teacher at Wardha. The wife having passed her M.A. in Sanskrit was employed as a Lecturer in Ruia college. The husband had passed his B.E. (Civil) and was an Assistant Lecturer in the Government Polytechnic at Amravati. The marriage between the parties was solemnised in Bombay on the 18th of March 1967. Soon after the marriage the wife tendered her resignation and accompanied the husband to Wardha where her in-laws were residing. The parties stayed there for about 8 days and thereafter proceeded to Amravati and stayed there till about the end of April 1967. Thereafter the wife came back to Bombay for the purpose of assessing the examination papers, she also undertook German language course. In May, 1967 the wife withdrew her resignation and re-joined Ruia College in June 1967. She was also required to attend the marriage of her sister Vidya which was solemnised at about that time. In June, 1967 the husband was called for an interview for German scholarship for which he was selected. Between July and September, 1967 the husband attended the German language course at Pune. He proceeded for Germany on the 10th October 1967. In March, 1968 the wife obtained a passport probably with a view to join her husband in Germany. The husband returned from Germany and rejoined the college at Amravati in December, 1968. On his request the wife gave up her job by. resigning and joined her husband at Amravati in March, 1969. The husband, however, was transferred to Bombay in December, 1969 and hence both the husband and wife came to Bombay and the wife was re-employed in Ruia College. In August/September, 1970 the husband was transferred to Nagpur. In March, 1971 he was transferred to Amravati. In July 1971 the husband joined VJTI at Bombay for post graduation and was posted in Bombay after he completed his post graduate examination. During this period the couple resided in Shardashram for sometime. Thereafter the husband resided in the VJTI hostel during which period the wife resided with her parents. On 11th January, 1972 a son Abhi-jeet was born to the couple. During October/ November, 1974 the couple resided at Thane arid thereafter in Government quareters at Bandra. The wife had in the meanwhile in 1972 booked a flat at Andheri and it is the case of the husband that he had contributed the initial amount of Rs. 3000/-towards booking of that flat. This flat was ready by about March, 1975 and the couple shifted their residence to this flat.
3. On the 1st of September, 1975 a daughter Ajita was born. The husband, however, on the 1st July, 1976 came to be transferred to Nagpur. In the same month, the wife got herself admitted for M.A. in Sociology. During his stay in Nagpur the wife visited him on a couple of occasions. However, it is the grievance of the husband that she did not visit his parents at Wardha. Likewise the husband used to visit the wife and the children at Bombay.
4. The relations between the parties by this time had become strained and the last straw that broke the camels back was when the husband addressed his letters, Exhibits B and C, to the wife. These letters were dated 28th September, 1978 and 22nd April, 1979. They however, were posted sometime in May 1979. By these letters the husband levelled serious allegations against the wife. They reflect a series of grievances nursed by the husband against the wife. I will have occasion to deal with the contents of these letters at a later stage. However, it is enough at this stage to observe that the wife was pained at receiving these letters. She thought that her matrimonial life was in the doldrums and her chances of being in the company of the children had come to an end. At that time the children were with the father at Wardha during their vacations. The wife in the company of her father, sister and brother went to Wardha and surreptiously brought back the children to Bombay without informing the husband. After the childcen were brought back, the wife's father addressed his letter, Exhibh-D, dated 4th June, 1979 to the husband expressing his grief at the contents of the letters Exhibits B and C and even invited him for a discussion so as to remove the misunderstanding. Nothing happened till August, 1980 when the husband visited the wife at their Andheri flat. When the wife noticed the husband on her opening the door in response to his knocking, she was surprised and she slammed the door. She, however, was persuaded by the husband to open the door. The wife expressed her grief at the allegations levelled by the husband in the letters Exhibits B and C with a hope that the husband would express regrets. He, however, justified the allegations that he had levelled in these letters. That niglit, it is the case of the husband that he was required to sleep in the balcony whereas the wife and the children slept inside. On his return the husband addressed his letter, Exhibit-E, dated 17th August, 1980 wherein he expressed his grievance against the wife.
5. The husband, thereafter, in December 1980 again visited the wife for the purpose of seeing the children and to persuade the wife to join him at Wardha after tendering her resignation. The wife, however, declined to respond with the result that the husband returned within a few hours. He went again on the next day but the attitude of the wife remained the same. He, therefore, left for Nagpur. Thereafter, the next visit of the husband was in the end of February or in the beginning of March 1981. The husband was on his way back from Pune, he met the children for a few hours and left by the next available train. Again in the end of March, 1981 when the children's examinations were in progress the husband came to Bombay for 3 or 4 days. He, however, stayed with his friend Tembekar at Bandra colony. During this period, he used to meet the children in the morning and take their studies. During this stay, the husband asked the wife for a final decision. She, however, refused to join him. Even the children refused to accompany him. The husband suggested the wife that they should separate and asked for the return of the ornaments. The wife informed that the same were with her father. On the next day both the wife and her father refused to return the ornaments. After heated arguments, the husband finally left.
6. Thereafter in April 1981 the husband came in the company of his father alongwith a trunk and removed alt the articles which were in the Andheri flat which included bed, furniture and even the cooking gas. It was in these circumstances that the husband filed the present petition on 1st August, 1982.
7. The husband has claimed divorce on two grounds namely cruelty and desertion. The gravamen of the charges levelled by the husband are that the wife refused to join him and his parents at Wardha. She was guilty of racking quarrels on petty money matters. She was cool and she refused to perform her marital obligations. She had surreptiously whisked away the children from Wardha without informing him and she was guilty of making overtures towards third parties. This had caused severe mental agony upon the petitioner. Moreover, she had without justification refused to cohabit with him and was guilty of desertion.
8. The wife resisted the said petition by filing her written statement wherein she denied all the adverse allegations made in the petition. According to her, she had resigned and joined her husband immediately after the marriage. It was on account of the husband intending to proceed to Germany on scholarship and thereafter intending to stay in Bombay that she was persuaded to withdraw her resignation. She had even taken up the German Language, Course and had obtained a passport so that she could join her husband to Germany. When her husband returned to Amravati from Germany she at his request once again tendered her resignation and joined him. It was only after the husband was transferred to Bombay that she also got herself re-employed in Bombay. Thereafter when the husband was transferred to Nagpur and thereafter to Amravati she was willing to join him for good. But she expressed her unwillingness to keep shunting from place to place on the frequent transfers of her husband. She denied the allegations of cruelty as also in regard to her being over-friendly with third parties. She was shocked to receive the letters, Exhibits B and C, and hoped that the husband would repent. He, however, justified the allegations. According to her, it is the husband and not herself, who is the offending party. Consequently she prayed for dismissal of the petition.
9. At the trial the only evidence that was led was that of the husband and the wife. Various letters which were addressed by the husband to the wife were got produced. However, the letters addressed by the husband are not forthcoming as according to the husband he had not maintained them.
10. By the impugned judgment and decree, the learned trial Judge answered both the issues regarding cruelty as also desertion against the wife. Consequent upon these findings, the learned Judge proceeded to pass a decree for divorce in favour of the husband and against the wife. The custody of the children were directed to be retained with the wife and the husband was ordered to pay monthly maintenance for the two children at the rate of Rs. 200/- each. Taking exception to this decree, the wife has preferred the present appeal wherein she has challenged the findings on both the aforesaid issues and has also claimed enhanced maintenance. The husband has not preferred any appeal against the order of the custody of the children.
11. At the trial the husband has alleged that the wife was guilty of maintaining improper association. While he was in the Government Polytechnic at Amravati, one Jamdar was his neighbour residing in the Pavnaskar's bunglow. It is the grievance of the husband that the wife used to parise Jamdar as tall and handsome and used to describe the husband as short. This amounted to cruelty. The wife's younger sister Sheela was married to one Pimplaskar. In April 1979 Sheela had proceeded to Baroda. At that time Pimplaskar used to visit the wife for his meals. In May, 1979 the wife instead of accompanying the husband and the children to Wardha accompanied Pimplaskar to Ahmedabad. When the andheri flat was practically ready, she chose to go and inspect the same in the company of Pimplaskar in preference to the husband though the husband had returned early. One Joshi a friend of the wife's brother was on visiting terms to the house of the wife's parents. When the husband was residing in the V.J.T.I. hostel, Joshi used to visit the house of her father. Whenever the husband was present the wife would hand over their child to the husband and engage herself in conversation with Joshi. By these allegations, the husband sought to attack the moral character of the wife.
16-1-1990
12. The relations between the parties became sore particularly after the husband addressed his letters, Exhibits B and C. The letter, Exhibit-B, was scribed on 28th September 1978 but was not posted. The husband continued the scribing of the said letter on the 22nd April, 1979. This letter was posted sometime around 23rd May, 1979 and this in all probability turned out to be the breaking point in the relations between the parties. In this letter the husband has levelled serious allegations against the wife. The following are the few extracts contained ia this letter:--
"As usual 1 left Bombay in an agitated state of mind. Always my wife's face as though beaten with a shoe. Deadly silence and an unhappy state of affairs are the usual features at home. To experience all this I spend Rs. 100/- for train fare and more for other expenses and come there. At all times I have to make false show of happiness in front of the children. I feel disgusted at home and in addition to this for the number of days I have to stay there. I pass sleepless nights up to 3 or 3.30 a.m. suffering from mental torture. This has become a regular experience......who takes pride in not speaking a single word to him (referring to the petitioner) throughout his stay? Do I come there because I don't get anything to eat outside? Sexual pleasure is such a thing which easily relieves mental tension. But here too you take pride in refusing it. Do not be under the impression that you are obliging me. From now on I shall not even touch you. Even otherwise I am leading the life of a widower......Ever since the marriage you have put on such a trouble- some behaviour that my physical and mental well-being has been shattered.
The entire youth was snuffed out without fulfilment of the desires about youth, wife, romance and sexual pleasure. Body and mind have been reduced to a crushed state. Hopes of married life have been dashed without fulfilment of any of the desires. Your husband is only for your fulfilling a social need ......Coming to Bombay any time I experience lack of love and affection and nothing but mental torture and tension .....No thought or memory about you is a happy one.
I am dangling in between with a noose around my neck.........I am passing the days jiggling to take care of both the fronts without any happiness and while bearing extreme mental agony.
In the 12 years, there is not a single episode connecting you which would give me happy memories in your absence and gladden my heart. Your memories only cause extreme annoyance, tension and sense of torture. There has been no joy after your arrival and nobody likes to come near you."
Allegations against her moral character were also levelled.
13. A perusal of the aforesaid allegations, make it clear that the allegations levelled against the wife are undoubtedly serious. If they are found to be true and justified they would undoubtedly amount to cruelty meted against the husband. If, on the other hand, it is found that these allegations are false or unfounded then the making of these allegations would undoubtedly amount to inflicting of cruelty by the husband upon the wife.
14. It has to be observed that the various allegations contained in the aforesaid letters, Exhibits B and C, are absent in the petition. The husband has undoubtedly in the petition made reference to the alleged overtures made by the wife towards Jamdar and Pimplaskar. However, there is no reference about Joshi. It is true that there is a reference of Exhibits B and C made in the petition. However, the contents of these letters have not been set out in the petition so as to make out a ground of cruelty for the purpose of claiming a decree for divorce. In the letter, Exhibited-B, scribed on 28th September, 1978 there is no reference either of Pimplaskar or Joshi. The gravamen of the charge was that the wife was indifferent towards the husband and was rude and indifferent to his parents at Wardha. There is undoubtedly a reference to Jamda and all that is stated is that while at Amravati the wife had complained that when Jamdar used to stare at her she used to get nervous. In the letter dated 22nd April 1979, part of Exhibit-B, the grievances are directed more towards the financial bickering and it is alleged that his marriage was got solemnised against the wishes of the wife thereby destroying the peace and happiness in the household of the husband. It is pertinent to note that in Exhibit-B, there is no material to indicate any cruelty meted out to the husband. Apart from the stray reference to Jamdar mentioned above, there is no allegation against the wife's character. It is only in the letter Exhibit-C that wild allegations against the wife's character have been levelled. If the allegations contained in Exhibit-C were true, one would ordinarily expect them to be mentioned in the forefront in the letters, Exhibit-B. These allegations are conspicuously absent in Exhibit-B. In my view, the husband would not be entitled to rely upon the allegations contained in Exhibits B and C for proving the ground of cruelty especially when these allegations were not contained in the petition. I am conscious that the husband was permitted to lead his oral evidence in regard to these allegations without raising specific objections and he was also cross-examined on behalf of the wife. The wife has also led her evidence in rebuttal.
15. It has been observed in the case of Bhagwati Prasad v. Chandramaul, , as follows (at p'.'738):--
"Undoubtedly if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. But in considering the application of this doctrine to the facts of a particular case Court must bear in mind the other principle that consideration of form cannot override the legitimate considerations of substance.
If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both the parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."
In my judgement it will not be open to the husband to rely on allegations not contained in the petition for proving the ground of cruelty.
16. In the present case, the husband in paragraph 44 of his deposition has admitted as a follows:--
"Between my letter dated 28-9-1978 till May, 79 I visited Bombay almost every month. Even after the letter dated 28-9-78 I had marital relations with the respondent but the occasions were very few."
The aforesaid admission would lead to two inferences: (1) That the allegations contained in the letters, Exhibits B and C, were expression of a frustrated or a diseased mind i.e. making wild allegations against character of the wife or (2) Even if the allegations were true, the same have been condoned. It may be observed that one of me grievances purforth by the husband in the letter Exhibit-C is that the wife had not even the courtesy to accede to the trivial demand of the husband for adorning a large kumkum on her forehead. This fortunately is not one of the grounds set up for claiming divorce. II have made a reference to the aforesaid allegation and which allegation was not made a ground for divorce, as it was only after the wife had produced these letters on record that the husband has chosen to take [advantage of various allegations contained therein for making out grounds for claiming divorce. Since these allegations are totally absent in the petition, the husband would not be entitled to place reliance thereon for making good his ground of cruelty. Even assuming that he is permitted to place reliance on these allegations in my judgment the allegations are totally unfounded and without any independent material in support thereof, if these allegations were to be true, it is difficult to see how the husband in his letter Exhibit-5 dated 25th July, 1981 entreated the wife to come back and join him at Wardha. The admissions of the husband in regard to his having had marital relations after the aforesaid letter as also his calling upon the ,wife to come back to him at Wardha are pointers to the eondonation by the husband in regard to the aforesaid allegations.
17. When the husband in August 1980 for the first lime after sending the aforesaid letters, Exhibits B and C, went to the wife, the wife naturally expressed her grief on the allegations levelled by the husband. She would naturally expect or rather hope that the husband would express regrets. The husband, however, snubbed her by stating that she should not open that topic. In other words leven when the husband had approached the wife for the purpose of breaking the deadlock, as he puts it in paragraph 26 of his deposition, he justified writing letters by saying that they were the result of his observations and experience that he had with her. Despite this, he expected the wife to join him at Wardha. If on account of this attitude of the husband if the wife failed to respond, can it be said that this was without reasonable cause. In the present case we have on record, the letters addressed by the husband to the wife and those were produced by the wife. However, we have not had the benefit of the letters addressed by the wife to the husband. The explanation of the husband is that he had not maintained the same. Had the said letters been available they would have given us a clear picture in respect of the allegations made by the husband against the wife. During the course of evidence, the husband has not made any direct allegations against the moral character of the wife. Even the learned Judge of the trial Court has held that there is nothing established against the wife of her improper association with the aforesaid persons. According to him, it was a feeling of a jealous husband who has not received the kind of attention he claimed or deserved. It is further pertinent to note that in the Advocate's notice dated 21st October, 1981 no allegations of the aforesaid nature were made. I am not at all satisfied with the explanation advanced by the husband in his evidence that they were not made on account of legal advice as the same would come in the way of negotiations for a settlement. In the petition as also in the evidence the husband has made no allegations in respect of the indifferent nature of the wife prior to 1976. However, in the aforesaid notice, he has made these allegations and has further alleged that the wife did not take up residence at Wardha with her in-laws. In my view up to 1976 there arose no occasion for the wife to go and reside in Wardha in view of the transfers up to that period. During this period, the parties only visited Wardha during vacations. Between March, 1969 and December, 1969, the wife had joined her husband at Amravati after resigning her job and in December, 1969 the husband was transferred to Bombay and the wife joined him by accepting re-employment in Ruia College. The husband, however, complains that the wife failed to maintain cordial relations with her mother-in-law. He in paragraph 5 qf the petition stated that he expected her to go to Wardha even during her 2 or 3 days stay when she had come to see him at Nagpur in the year 1969. In paragraph 6 of the petition he has made a grievance about the wife not visiting her in-laws at Wardha. The question that arises for consideration is whether in the present days, it is reasonable for a husband to expect his wife to dance to his tunes and move and reside whereever he desires. In my view, gone are the good old days when the husband was the sole bread earner and the wife who was wholly dependent on his earnings was constrained to act as per his dictates. Times have-changed and parties to the marriage should be alive of such a change. In the present case both the husband and the wife are equal parents having independent earnings of their own. The wife in the present case earns even more than her husband. Is it reasonable in such a case for a husband to justifiably expect the wife not only to live with him after resigning her job but also to live with her in-laws even at times when he is not residing with them. Is it reasonable for him to expect the wife despite all odds to maintain cordial relations with her mother-in-law? The illwill between the mother-in-law nd the daughter-in-law are age old and are well known. Is it reasonable for an husband in the event of the wife not acceding to his request to maintain good relations with the mother-in-law, and reside with her to treat this refusal as cruelty, so as to seek a decree for divorce. I should think not. The wife has not refused to cohabit with her husband. On the eve of her marriage she resigned her job from Ruia College and joined her husband at Amravati where he was employed. At that time she did go to Wardha and stayed there alongwith her husband and her in-laws. If at that time the husband was contemplating to appear for an interview and to proceed to Germany on scholarship, can it be said that the wife was wholly unjustified in returning to Bombay especially when her younger sister Vidya was to be married on the 2nd day of June 1967. She undoubtedly did withdraw her resignation but at the same time she undertook a German Language Course and also obtained a passport. Are these not the indications of the mind of the wife to be in the company of her husband. It may be that she could not join her husband in Germany but when he returned from Germany in December, 1968 andjoined College at Amravati, she again resigned her job and joined him there. They cohabited together at Amravati till the husband was transferred to Bombay and it was on account of this transfer that the wife also returned and got re-employed in Bombay. In my view, looked at from the proper perspective, these are the instances which indicate the desire of the wife to cohabit with the husband. The husband was subsequently transfered first to Nagpur in August/ September 1970, thereafter to Amravati in March, 1971, and again to Bombay in July 1971. The wife who was gainfully employed in Bombay could not reasonably be expected to toss of her job and join the husband on each of his frequent transfers. This is especially so when the earnings of the husband cannot be said to be adequate to meet the expenses of all the members of their family. At the time of the evidence recorded in the trial Court, the husband used to get Rs. 2200/- per month in hand. He was contributing a sum of Rs. 400/ -per month to supplement his father's pension of Rs. 300/- per month and he was till the order of maintenance was paying Rs. 300/-per month to the wife towards household expenses and for maintenance of the children. As against this, the wife was getting a salary of Rs. 2500/- per month in hand. Moreover, the wife had in the year 1972 booked the Andheri flat and it is the claim of the husband that he had contributed the initial deposit amount of Rs. 3000/-. It is common ground that apart from the aforesaid alleged contribution it is the wife who has spent towards the acquisition of the said flat. In such circumstances, in my view, it was not reasonable on the part of the husband to expect the wife that she time and again resign her job and accompany him at the places of his frequent transfers and also reside with her in-laws and maintain good relations with her mother-in-law. The denial by the wife of such a demand, in any event, cannot amount to cruelty so as to entitle the husband to a decree for divorce.
18. In his evidence the husband has stated that he was denied conjugal rights during o their stay in the Andheri flat. This obviously pertained to the period 1st March, 1975 to July, 1976. This allegation is, however, conspicuously absent in the petition as also in the letter Exhibited-B, and as also in the Advocate's notice dated 21st October, 1981. As regard the earlier period, there is no allegation set up by the husband. In my view, the allegations set up in the evidence will have to be styled as an after thought and the same deserve to be rejected. On the contrary, as stated herein above the parties had marital relations even after the letter Exhibit-D dated 28th September, 1978. During this period, the husband was merely visiting and not residing I with the wife. Therefore, if the occasions were few, no fault could be found with the wife. If in August, 1980 when the husband came to the wife for the first time after addressing his letters, Exhibits B and C, and if the wife (refused to respond when the husband justified the allegations he had made in Exhibits B and C, can she be blamed I should think not. I find that the allegations contained in these letters are wild and unjustified. Even then the wife was prepared to reconcile if the husband expressed regrets. The husband, however, justified the allegations and threatened the wife not to open the topic. If, in these circumstances, the wife has refused or denied her husband his conjugal rights it is only the husband who can be blamed.
19. Another ground set up by the husband for establishing cruelty is the demand by the wife for a greater contribution from the husband towards the house-hold expenses. The husband gets Rs. 2200/- in hand. Apart from payment of Rs. I25/- per month for a room at Amravati, he is contributing a sum of Rs. 400/- per month to augment the pension of his father which is Rs. 300/- per month. The concern of the husband towards his parents is no doubt laudable. However, he has an equal obligation towards the maintenance of his wife and children. In my view the amount of Rs. 300/- contributed prior to the Court order was wholly insufficient to meet the household requirement of the wife and the children in Bombay. The wife in paragraphs 44 to 47 of her deposition has given some details of the income and the expenses in the house-hold. If one has regard to the same, as also the contents of the diary, Exhibit-10, no fault could be found with the wife if she demanded a larger sum towards the household expenses.
20. After the visit of the husband to the Andheri flat in August, 1979 the husband next visited the wife in December, 1980, an February, 1981 and at the end of March, 1981. However, what transpired in his visit in April 1981 is worth noting. On that occasion the husband came to the Andheri flat in the company of his father. They had brought a huge trunk with them. At that time the wife was busy cooking. There was only one cooking gas connection in the house. There were one cooker, one dining table and chairs. the children were using the table and the chairs not only for the purpose of dining but for their studies also. The husband told the wife that he wanted everything that belonged to him. He entered the kitchen and cut the gas tube. The gas cylinder was kept aside and gas stove was packed and kept in the trunk. Cooker and other utensils, spoons, table fan, dining table, chairs, steel utensils, some bed sheets and bed were also packed and kept in the trunk. The husband in his deposition stated that it is true that serious inconvenience would be caused to the respondent and her children by removal of the articles. It was also true that those articles were not required by him. The children asked him where they would sit if he removes chairs and tables. But he did not feel sorry even at that stage. In my view, the aforesaid action was an unkindest cut exhibited by the husband. It shows the meanness of the mind of the husband. In my view, for the foregoing reasons, the husband is not entitled to a decree for divorce on the ground of cruelty. The learned Judge of the trial Court, in my view, has erred in permitting the husband to support the ground of cruelty on allegations not contained in the petition. He has erred in overlooking the omissions in the petition & the advocates notice in regard to the allegations contained in the letters Exhibits B and C noted by me herein above. He has erred in overlooking the positive act on the part of the wife in resigning from a well paid job on two occasions when she joined her husband on the place of his employment and has given undue importance to the fact that she had not resigned further on his subsequent and frequent places of transfer. Though he has held that the allegations in regard to the improper association of the wife had not been established he found no fault with the husband in his addressing his letters Exhibits B and C, in not apologising for the same and also in justifying the allegations. He has unduly glorified the obligations of an earning wife to cohabit with the erring spouse but also to reside and keep good relations with her in-laws. He has also failed to have a rational approach for determining as to who is the erring spouse. He was not justified in disbelieving the wife in regard to the demand of her mother-in-law for her three months' salary for the purpose of raising an additional floor on the Wardha house on the ground that the said house was not of RCC as if the wife was an expert on the matter of construction and repairs. He has erred in not finding fault with the husband when he had clearly erred. He overlooked the various pieces of evidence which lead to the conclusion of condonation. In these circumstances, I am unable to subscribe to the view arrived at by the learned Judge of the trial Corut.
21. Shri Sawant the learned Counsel appearing on behalf of the husband, however, submitted that the respondent hails from Wardha and it was natural that he was interested in settling down there. According to him, Wardha was the matrimonial home. The wife was not at all justified in returning to Bombay on the pretext that Amravati and Wardha were too hot. According to him, the wife was not justified in preferring to stay in Bombay during the husband's three months' German Language Course in Pune and two years in Germany. According to him, her proper place was with her in-laws in Wardha. On return from Germany in December, 1968 the husband joined Amravati College and requested the wife to join him. At that stage the wife was not justified in informing him that it was not in their interest to settle down in Amravati and she was not justified in suggesting the husband to come to Bombay. The wife did resign and join him in Nagpur. In March, 1979, she refused to go to Wardha. This according to him, amounted to cruelty. According to him when she resigned her Bombay job in March, 1969 that was not on account of the request of the husband but because of the gossip in Bombay. In regard to the husband's transfer to the Government Polytechnic in Bombay in December, 1969 he stated that it was managed by the father of the wife. When the husband, in August/ September, 1970, was promoted as Class II, at Nagpur, the wife declined the husband's suggestion to join him but suggested him to come to Bombay. According to him, the refusal of the wife to accompany the husband to Wardha when she came to Amravati on vacation or when the husband went from Bombay to Wardha during vacation are the instances of cruelty. In my judgment, there is no merit in any of the aforesaid contentions advanced on behalf of the husband.
22. In my view it is difficult to subscribe to the submissions advanced on behalf of the husband that the matrimonial home of the parties was either at Amravati or at Wardha merely on the ground that the husband or his parents happened to be there. In the facts of this case, in my view, the parties to the marriage are equal partners in all respects and there is no justification to hold that it is only the place of posting or the original place of the residence of the husband that will be the matrimonial home. Both had in the year 1972 booked the ownership flat in Andheri andit is the case of the husband that he had contributed an initial amount of Rs. 3000/ -. The following extract of the letter Exhibit-C addressed by the husband to the wife would show the view the husband expressed regarding the aforesaid Andheri flat and desirability of residing in Bombay:--
"There are many advantages of staying in Bombay. Children could be brought up in good company and they can be given good education; your labour should also be rewarded; you should be doing a job to your liking and there should be benefit from the financial angle; these were my desires while having an alliance with Bombay. It will be possible to learn other trade as well in Bombay; children will also have a scope in all respects and you too will not feel cooped up at home. This was my intention behind staying in Bombay. In a small village there is neither scope nor good company for children. But you never gave me the mental satisfaction and joy in coming to Bombay."
In these circumstances and in view of the frequent transfers as also two occasions when the wife did resign and join her husband, it is difficult to subscribe to the view that it is the wife who is the offending party in refusing to cohabit with her husband so as to form the basis of a finding of cruelty for the purpose of inviting a decree for divorce.
23. Shri Sawant further submitted that the act on the part of the wife in sending the children alongwith the husband to Wardha and not accompanying them but accompany-ing her sister's husband to Ahmedabad amounted to cruelty. In my judgment, it is not possible to hold that the fact that the wife accompanied her brother-in-law to Ahmedabad is an act that could lead to a suspicious circumstance. The wife denied having accompanied him. There is no direct evidence on the point. Even if it were to be held that she did accompany him, in my view, there is nothing wrong and if the husband complained about it, in the absence of anything more, especially in view of the fact that no allegation of moral turpitude has been levelled, such an allegation can only be attributed to a suspicious or sick mind of the husband. Shri Sawant further submitted that the wife was maintaining an attitude of aloofness and was rude to her in-laws. She indulged in frequent quarrels over houshold expenses. She used to slam the door on the face of her husband and sleep separately. This had led to mental tension and sleepless nights to the husband. In my judgment, there is no merit in the aforesaid contentions. Shri Sawant, in my judgment, is turning a deaf ear to the faults of the husband while making submissions on his behalf. He is presuming that the entire fault lies at the doors of the wife and he is giving a clean chit to the conduct of the husband. Having considered the overall evidence, I am of the view that the fault if at all lies at the doors of the husband. I find him to be more unreasonable who is prone to throw the entire blame on the wife. It may be that the wife may be sober and reserved in speach. she may even be aloof in her nature. However, in view of the allegations made by the husband in the letters, Exhibits B and C, which allegations I have found to be wholly unjustified and in view of the husband's attitude of non co-operation and the attitude of justifying the allegations against the wife, no fault could be found with the wife.
24. In the result, the decree passed by the trial Court under S. 13(1)(ia) on the ground of cruelty cannot be sustained.
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25. This takes me to the consideration of the second ground set up for claiming divorce namely "desertion". In order to determine as to whether the wife is guilty of desertion, it may be convenient to determine which is the matrimonial home of the parties. On the date of the marriage the wife was a resident of Bombay and the husband was a resident of Amravati and his parents were reaiding at Wardha. The parties jointly resided either at Bombay or at Amravati. In the year 1972 the parties booked an ownership flat at Andheri. The intention of the husband in regard to the place of their matrimonial home can be seen by the averments contained in his letter Exhibit-C, extracted herein above, He has categorically stated that there were many advantages of residing in Bombay. The children could be brought up in good company and they could be given good
education.........etc.......The husband alongwith the wife did reside together in their ownership flat at Andheri. In my judgment, it is this house, which will have to be considered as their matrimonial home.
26. It is further contended by Shri Sawant, the learned Counsel appearing on behalf of the defendant that the husband hails from Wardha. His parents lived there and therefore it would be natural that he would be interested in settling down there. According to him, it would be the Wardha house which would be the matrimonial home of the parties. According to him, it will be the husband's house that will be the matrimonial home of the parties.
27. In my judgment, there is no merit in the aforesaid contention. In the present modern set up it can no longer be claimed that it is only the house of the husband or the house of his parents that will be the matrimonial home of the parties. In the present times husband and wife are equal partners and in the present case the wife is little more than an equal partner. She has an equal right pf having a say in the matter of determining the place of their matrimonial home. The fact that the parties had booked the ownership fiat in Bombay towards which, according to the husband, he has contributed the initial amount, is a pointer to the intention of the parties to settle down in Bombay. In my judgment, it is this house which is the matrimonial home of the parties.
28. This leaves me to the consideration of the further question as to who is guilty of deserting other. In the Advocate's notice, Exhibit--H, dated 21st October, 1981 it has been alleged on behalf of the husband that the husband was constrained to leave Bombay and obtained a transfer at Nagpur on account of the harassment and indifferent attitude of the wife. By this the husband sought to suggest that it was the wife who was the guilty spouse and that had led him to obtain a transfer at Nagpur. However, in paragraph 55 of his deposition he has given up that case by stating as follows:--
"The statement appearing in advocate Paranjpe's notice that I got myself transferred to Nagpur is a mistake, and is not in accordance with my instructions. I did not get the mistake corrected because she was very late in sending the notice and her services were not required. I had no desire to set up an establishment in Bombay for me and my family.
In the petition the husband has not made any averment that he was compelled to go to Nagpur on account of the harassment by the wife. Having given up this case there appears to have been no justification on the part of the husband to stay away from the wife. The correspondence Exhibits B and C commenced from April, 1979 onwards. I have already held herein above that the aforesaid, letters addressed by the husband contained serious insinuations which have no basis. Despite such serious allegations having been levelled against her, the wife was prepared to accept the husband back on the condition that he expressed regrets. He, however, declined and on the contrary justified the allegations. If in these circumstances, the wife refused to cohabit, can she be held to be a guilty spouse? Explanation to S. 13(1)(ib) provides as follows :--
"In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be constituted accordingly."
In my judgment, if there has been an estrangement between the parties the husband is wholly responsible and hence the husband is not entitled to any reliefs on this ground. The decree passed by the learned Judge of the trial Court on the ground of desertion is liable to be set aside.
29. The trial Court has awarded the custody of the children to the wife and there is no challenge to that part of the decree. The order regarding the custody of the children is, therefore, affirmed.
30. In regard to the claim for alimony, the learned Judge of the trial Court has found that the husband earns a gross salary of Rs. 2800/- per month and after permissible deductions he gets Rs. 2200/- in hand. Out of this amount he sends Rs. 400/- per month to the parents and pays RE. 125/- per month towards the rent of his Amravati room. As against this, the wife gets an amount of Rs. 2500/-per month in hand. Out of this, she is required to expend an amount of Rs. 325/-per month towards the out-goings of the Andheri flat and Rs. 200/- towards railway pass and bus fare. The learned Judge of the trial Court directed the husband to pay an 'amount of Rs. 200/- per month for each of the children i.e. an aggregate amount of Rs. 400/-per month.
31. In my judgment the order of maintenance awarded by the learned Judge of the trial Court cannot be termed as adequate to meet the requirements of the growing children of the parties. The wife in paragraph 84 of her deposition has stated that the fees for the son for each term is Rs. 78/- and there are two terms. The children have two pairs of school uniforms costing about Rs. 500/-. The other clothes would cost about Rs. 1500/- to Rs. 2000/- for both the children. Though no conveyance is required to go to the school as the school is at walking distance their son attends tution class which requires conveyance. In my view, the husband would be liable to pay atleast an amount of Rs. 300/- per child aggregating Rs.600/- per month. This amount will be payable from the date of the filing of the petition.
32. Shri Sawant the learned Counsel appearing on behalf of the husband, however, has pointed out that the son has attained majority on the 1 Ith January, 1990. According to him, the obligation of the husband to maintain him ceased-on that day. Reliance is placed on S. 20(2) of the Hindu Adoptions and Maintenauce Act as also on the decision in the case of Krisankant Raoji dalvi v. Sadhana Krishnakant Dalvi in Letters Patent Appeal No. 113 of 1983 with letter patent Appeal No. 114 of 1983 decided by Sawant and" Dudhat JJ "on 26th June, 1989. Shri Sawant has also relied on the decision in the case of Kartarchand Dalliram Jain v. Smt. 1982 Bom 15.
33. Shri Angal the learned Counsel appearing for the wife has, however, contended that the provisions of the Hindu Adoptions and Maintenance Act cannot be imported in the Hindu Marriage Act. According to him, the conduct of the husband as also the non-payment of maintenance from the time the wife had brought the children from Wardha sometime in May 1979, till the order of maintenance was passed in the proceedings underg. 125 of the Criminal Procedure Code ought to be taken into account for the purpose of awarding maintenance against the husband.
34. The relevant provisions for awarding maintenance in a matrimonial petition can be found in S. 26 of the Hindu Marriage Act. The said provision in so far as is relevant provides as follows:--
"In any proceeding under this Act, the Court..... may make such provisions ..... with respect to the custody, maintenance and education of minor children ..... and may ..... all such orders and provisions with respect to the custody, maintenance and education of such children.....".
The above provisions make it clear that the jurisdiction of the Court to pass orders for maintenance are restricted to minor children alone. Once the children attain majority, the provisions of S. 26 would cease to apply Hence the order of maintenance under the Hindu Marriage Act can be passed only! during the minority of the children. In this view of the matter, the order of maintenance for the son Abhijeet will be only for the period from the date of the filing of the petition till 11 th January, 1990 and for the daughter from the date of the Filing of the petition till 1st September, 1993 when they attain majority.
35. In the result, the appeal succeeds and the impugned decree dated 27th August, 1986 passed by his Honour Judge Rego of the Bombay City Civil Court, in M.J. Petition No. 828 of 1982 awarding the divorce is set aside and the petition is dismissed. The order in respect of the custody of the children to the wife is maintained. The order of maintenance of the minor children of Rs. 200/- to each child is enhanced to Rs. 300/- each which shall be payable from the date of the filing of the petition till they attain majority i.e. 11th January 1990 in the case of Abhijeet and 1st September 1993 in the case of daughter, Ajita.
The respondent-husband shall pay the costs both this appeal as also of the trial Court.
36. Appeal allowed.