Rule 5 of the Bombay High Court Hindu Marriage and Divorce Rules, 1955 mandatorily require alleged adulterers as co-respondents in the petition for divorce filed on the ground of adultery. He has invited the Court's attention to Rule 5 which says that in every petition for divorce or judicial separation on the ground that the respondent has after the solemnization of the marriage, had voluntary sexual intercourse with any person other than the petitioner, the petitioner shall make such person a co-respondent. The petitioner may, however, apply to the Court by an application supported by an affidavit for leave to dispense with the joinder of such person as a co-respondent on any of the following grounds :-
That the
name of such person is unknown to the petitioner although he has made due efforts for discovery;
that such
person is dead;
that the
respondent being the wife is leading a life of a prostitute and that the petitioner does not know any person with whom the respondent has, after the solemnization of the marriage, had voluntary sexual intercourse;
for any
other sufficient reason the Court may deem fit to consider.
He
has further submitted that the petition for divorce was filed by the respondent in violation of Rule 5 as neither the petitioner has joined the alleged adulterers as party respondents nor any affidavit is filed seeking dispensation of joining such persons as parties on any of the four grounds mentioned in Rule 5. He has, therefore, submitted that the divorce petition itself is not maintainable and that is the substantial question of law raised by the appellant in the present Second Appeal.
The
second question is in relation to the challenge to the maintainability of petition for divorce on account of non-joinder of necessary party. The Trial Court has framed this issue and decided it against the present respondent husband. The First Appellate Court, strictly speaking, did not address itself on this point. It is true that Rule 5 of Bombay High Court, Hindu Marriage and Divorce Rules, 1955 mandatorily requires alleged adulterers as co-respondents in the petition for divorce filed on the ground of adultery. This Court in the case of Maganlal Budhaiabhai Patel (Supra) held that the word 'shall' in Rule 5 is mandatory and, therefore, person with whom a woman is alleged to be living in adultery when known is a necessary party in divorce proceedings. It is, however, to be kept in mind that the petition for divorce is not filed on the ground of adultery. The petition is basically filed on the ground of desertion. There are averments with regard to adultery. However, there was no concrete or definite evidence about the names of persons with whom the appellant wife was living with adulterous life. The facts regarding pregnancy of the appellant have also come to the forefront during the course of trial, but in view of the rival contentions, it is difficult to implicate any one. The respondent husband, on assumption, howsoever strong it may be, cannot implicate any one as co-respondents in the petition for divorce and invite troubles for him from such persons. It is true that he could have filed an affidavit and sought leave of the Court as contemplated in Rule 5. But, such an inadvertent lapse does not vitiate the decree for divorce, more particularly, it is not solely based on adultery. The second question is, therefore, answered in negative i.e. against the appellant and in favour of the respondent.
Gujarat High Court
Varshaben vs Janakkumar on 5 October, 2010
The appellant
original plaintiff has filed this Second Appeal under Section 100 of the Code of Civil Procedure read with Section 28 of the Hindu Marriage Act challenging the judgment and order dated 03.01.2007 passed by the learned 2nd Additional District Judge, Sabarkantha in Regular Civil Appeal No.9 of 2005 whereby the appeal filed by the respondent herein came to be allowed and the judgment and decree passed by the learned Additional 2nd Civil Judge at Himmatnagar on 30.06.2005 in HMP No.32 of 2000 came to be quashed and set aside. The learned Additional District Judge has allowed the petition for divorce by holding that the marriage between the parties stands dissolved subject to the condition that the respondent herein deposits an amount of Rs.2 Lacs towards permanent maintenance within six months from the date of judgment and decree.
The respondent
No.1 original plaintiff husband has filed this cross objection praying for quashing and setting aside the judgment and decree passed by the learned District Judge, Sabarkantha at Himmatnagar in Civil Appeal No.9 of 2005 in so far as and to the extent that it has awarded the amount of permanent alimony and maintenance of Rs.2 Lacs to the wife, and to direct that the amount already deposited by the husband be forthwith refunded to him.
Initially,
this Court vide its order dated 14.08.2008 dismissed this second appeal for want of prosecution. However, by an order dated 12.12.2008 passed in Civil Application No.13070 of 2008 condoned the delay and thereafter the order of even date passed in Misc. Civil Application (Stamp) No.3071 of 2008 restored the Second Appeal to its original file. Thereafter, this Court has issued notice in the Second Appeal on 13.03.2009 and decree of divorce was directed to be remained under suspension. The Second Appeal came to be admitted on 25.09.2009 and following substantial questions of law were framed by this Court for consideration and determination of this Court :-
Whether
on the facts and circumstances of the case the First Appellate Court committed error in passing the impugned judgment on the ground of irretrievable break down of marriage ?
Whether
on the facts and circumstances of the case the petition was not maintainable on account of non-joinder of necessary party?
Whether
on the facts and circumstances of the case the First Appellate Court committed error in not following procedure prescribed under section 23(2) of the Hindu Marriage Act, 1955 ?
After
admission of the Second Appeal, the respondent husband has moved Civil Application N.5038 of 2010 for fixing early date of hearing on Second Appeal. This Court vide its order dated 13.05.2010, after considering the averments in the application and looking to the controversy in the Second Appeal, directed the Registry to notify the main Second Appeal for final hearing along with the cross objections, if any, on 30.06.2010.
In the above
background of the matter, this Second Appeal is taken up for final hearing on 30.07.2010 as well as on 02.08.2010.
The brief
facts giving rise to the present Second Appeal are that the respondent herein filed HMP No.32 of 2000 before the Court of 7th Additional Senior Civil Judge at Himmatnagar, alleging therein that the marriage between the parties to the proceedings had taken place on 10.02.1989 at village Vadali as per Hindu ritual. It was also stated therein that during the matrimonial life, there was a birth of baby boy, namely, Neel in the year 1991. it was also contended that the appellant herein original defendant had studied upto PTC and got job as Primary Teacher on 26.02.1992 and she was posted in the primary school at different places as Primary Teacher. The matrimonial life between the parties to the proceedings was good for initial six months but the defendant present appellant was having illicit relations with persons, namely, J. H. and Vicky prior to marriage and there was physical relationship with them and even after marriage, the defendant appellant herein used to meet them under the excuse of going to the parental house. It was further alleged that the appellant had executed Kabulatnama dated 30.12.1996 accepting about the physical relation. The respondent herein had made various reckless, baseless and wrong allegations against the appellant herein, taking disadvantage of the petitioner's attending the school at village Gadu.
The appellant
herein had filed substantive reply in the said HMP opposing the said petition and making it clear that the said petition was filed on the basis of the concocted, false and fabricated facts. All the allegations of the respondent herein had been denied. It was further stated that the alleged Kabulatnama was doubtful and handwriting therein are not of the appellant herein and the respondent herein has misused the signature obtained on blank papers after lapse of about 10 years. Since the respondent herein and his family members were causing mental and physical torture and by using force, giving threats and causing heavy pressure, the respondent herein and other named persons in the complaint had aborted the child of the appellant on 07.11.1997, without the consent of the appellant and against her will and thereafter the appellant was driven out from the house and thereafter also, the respondent herein and his family members had given threats on 17.10.2004 compelling her to give divorce and hence, the appellant herein was constrained to lodge a criminal complaint before the police authorities on 18.10.2004. Since no action was taken by the Police authorities, the appellant herein had filed Criminal Case No.111 of 2004 before the learned JMFC, Idar.
It is also the
case of the appellant herein that the appellant was deserted by the respondent and hence, the appellant had filed HMP No.61 of 2004 before the learned Civil Judge (S.D.) at Himmatnagar for restitution of the conjugal rights and maintenance and the said petition is still pending before the Trial Court. It is also the case of the appellant that HMP No.32 of 2000 was heard and disposed of by the learned 7th Additional Senior Civil Judge, Himmatnagar on 30.06.2005 whereby the said petition filed by the respondent under Section 13 of the Hindu Marriage Act, for divorce, came to be dismissed.
The said
judgment and decree of the learned Additional Senior Civil Judge was challenged by way of filing Regular Civil Appeal No.9 of 2005 before the learned 2nd Additional District Judge at Himmatnagar. After hearing both the sides and considering the submissions, the said appeal came to be allowed by quashing and setting aside the judgment and order of the learned Additional Senior Civil Judge, Himmatnagar. The decree for divorce was passed by the learned Additional District Judge and the direction was given to the respondent herein to deposit the amount of Rs.2 Lacs within six months.
It is this
order which is under challenge in the present Second Appeal.
Mr. Manish H.
Shah, learned advocate appearing for the appellant has submitted that the learned Additional District Judge has erred in allowing the appeal filed by the respondent herein against the judgment and decree passed by the Trial Court. Despite the fact that no ground was made out for decree of divorce and yet the appeal was allowed by granting the prayer for divorce and by declaring the marriage between the parties dissolved. He has further submitted that the learned Additional District Judge has erred in observing that the finding recorded by the Trial Court is totally against the admission of wife and documentary evidence. The learned Additional District Judge has not considered the fact that from the very beginning, in the criminal complaint and in the suit for restitution of conjugal rights as well as in defence, the appellant herein has made it clear that she had become the victim of the respondent herein and his relatives who had forced and compelled her for abortion against her will. He has, therefore, submitted that the reply given in cross-examination cannot be treated as admission of living in adultery, by selecting single line. He has further submitted that the appellant herein was forcefully driven out and as she was willing to come back, she had filed HMP No.61 of 2004 for restitution of conjugal rights. There is enough evidence on record which reveals that the appellant herein was tortured to a high extent by the respondent herein and his family members disturbing the matrimonial life and she was compelled to live separately, with malicious intention to create and strengthen the ground for divorce. The compulsion to abort child against the will of the appellant itself shows the extent of cruel manner of the respondent herein and his family members.
Mr. Shah
further submitted that without prejudice to his main contention and ground of challenging the decree for divorce that the amount awarded as permanent maintenance is absolutely inadequate in comparison of income of the respondent and to live the appellant in respectable comparative status and for that, the right for claiming adequate maintenance has been closed down. He has further submitted that while determining the amount of compensation, the learned Additional District Judge should have considered that the marriage between the parties had taken place in the year 1989 and there was a birth of child during matrimonial life in the year 1991. Thereafter, upto the year of 1997, the matrimonial life had continued and after about 9 years, the matrimonial life was disturbed and the reasons thereof reveal from the first complaint filed by the appellant against the respondent and his family members for their intolerable acts. He has further submitted that the writings at Exh.21 are stated to have been added by the respondent herein and the same are not in the handwriting of the appellant. The same are of the year 1990 whereas they are used in the year 1999 2000. The deposition and the cross-examination of the appellant have not been properly understood in its true meaning by the learned Additional District Judge. There is settled principle of law that in a case where an allegation of adultery is made, the concerned person is required to be joined as party or at least the reasons for not joining the said party will have to be explained. The respondent herein has neither joined the concerned persons as party respondents nor has filed any affidavit showing the reasons for not joining them as parties. He has, therefore, submitted that this affidavit itself proves that the respondents have falsely relied on the document which is fabricated with an ulterior motive to create ground for divorce. He has, therefore, submitted that the appeal filed by the appellant deserves to be allowed and the judgment passed by the learned Additional District Judge deserves to be quashed and set aside.
Mr. K. B.
Pujara, learned advocate appearing for the respondent has submitted that the respondent has filed affidavit-in-reply raising certain preliminary objections as well as contentions on merits on 18.12.2008 as well as 13.03.2009. Based on these two replies, Mr. Pujara has submitted that the present Second Appeal is not maintainable at law in as much as in the Hindu Marriage Act, 1955, Section 28 (1) provides for only one appeal against the decree passed by the Court in exercise of its original civil jurisdiction i.e. First Appeal. There is no provision providing for a right of Second Appeal against the decree passed by the Court in appellate jurisdiction. In support of this submission, he relied on the decision of this Court in the case of LALLUBHAI KESHAVRAM JOSHI V/S. NIRMALABEN LALLURAM JOSHI, 1972 GLR 626 wherein it is held that the right to appeal under the Hindu Marriage Act is provided in Section 28 and the applicability of the Code of Civil Procedure to the proceedings under the Hindu Marriage Act is only for laying down the procedure and no more. The Code of Civil Procedure does not contain any provision for a right to appeal under any other law. He has, therefore, submitted that in absence of any specific provision for a right of second appeal against the decree passed in the appellate jurisdiction, under the Hindu Marriage Act, no Second Appeal can be preferred.
He also
submitted that the present Second Appeal is not involving any substantial question of law and, therefore, the same is liable to be dismissed as per the well settled principles of law. He has also submitted that the finding of facts recorded by the learned Additional District Judge on the basis of evidence on record cannot be reversed by re-appreciation of the same evidence in exercise of jurisdiction of Second Appeal. Even on this ground, the second appeal is liable to be dismissed. The Apex Court, after discussing the previous law on the subject, has held in the case of GOVINDARAJU V/S. MARIAMMAN, AIR 2005 SC 1008 that as per settled law, the scope of exercise of the jurisdiction by the High Court in Second Appeal under Section 100 is limited to the substantial questions of law framed at the time of admission of the appeal or additional substantial questions of law framed at a later date after rewarding reasons for the same. A point of law which admits of no two opinions may be a proposition of law but can not be a substantial question of law. To be a substantial question of law must be a debatable, not previously settled by law on the land or a binding precedent and answer to the same will have a material bearing as to the rights of the parties before the Court. As to what would be the question of law involving in the case, it was observed that to be a question of law involving in a case there must be first a foundation for it laid down in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the Court of facts and it must be necessary to decide that question of law for a just and proper decision between the parties.
Apart from the
legal submissions against the maintainability of the Second Appeal, Mr. Pujara has submitted that the facts are not correctly stated by the appellant in the appeal memo. The relevant and important facts are that the marriage between the appellant and the respondent took place on 10.02.1989. A child, namely, Neel was born out of the said wedlock on 06.12.1991. The appellant joined service as Primary Teacher on 26.02.1992. She had entered into sexual relationship with several persons prior to the marriage and she continued to live adulterous life even after marriage by continuing to have sexual relationship with several other persons. In May 1997, she left the matrimonial house and withdrew herself from the Society of the respondent. Thereafter, she became pregnant in August 1997 though she did not have any physical relationship with the respondent. The said pregnancy was terminated on 07.11.1997 at Khedbrahma in Pragati Hospital of Dr. Ganesh S. Patel. On 23.06.2000, the respondent filed Hindu Marriage Petition No.32 of 2000 under Section 13 of the Hindu Marriage Act, 1955 praying for decree of dissolution of marriage which came to be rejected by the learned Trial Court by judgment and order dated 30.06.2005. During the pendency of the said HMP No. 32 of 2000, the appellant filed criminal complaint dated 30.10.2004 in the Court of learned JMFC, Idar against the respondent and his father, mother, brothers, wife of brothers, sisters and other persons for offences punishable under Sections 313, 316, 323, 504, 506 (2), 498-A, 406, 497, 494 and 164 of Indian Penal Code which came to be registered as Criminal Inquiry No.111 of 2004. The learned Magistrate passed an order under Section 202 of Code of Criminal Procedure directing the PSI, Vadali to investigate and to report. PSI, Vadali there upon made investigation and submitted report that the accused had not committed any offence. Thereafter, after hearing the complainant, the learned Magistrate dismissed the complaint by an order dated 28.09.2005.
Mr. Pujara has
further submitted that during the pendency of HMP No.32 of 2000, the appellant also filed HMP No.61 of 2004 on 30.11.2004 praying for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. However, the same came to be withdrawn following the withdrawal purshish dated 17.03.2007 submitted by the appellant.
The learned
Trial Court rejected HMP No.30 of 2000 by judgment and order dated 30.06.2005 despite clear evidence on record to the effect that the appellant was living adulterous life during her marriage with Janakbhai and that she had withdrawn herself from the Society of the respondent in May 1997 and thereafter, there was no resumption of physical relationship between the appellant and the respondent and yet in August 1997, she became pregnant and pregnancy was got terminated by her on 07.11.1997. He has further submitted that the appellant has admitted in her writing dated 30.12.1990 at Exh.21 that she was having physical relations with two persons viz. J. H. and Vicky since prior to the marriage and that she was in love with J. H. and that she had decided to marry with him and that even after marriage, she had frequently entered into sexual relationship with both the said persons in the Guest House at Idar and that the two letters written by the said persons were received by the respondent and that she had entered into sexual relationship with several other persons for the sake of pleasure. He has, therefore, submitted that the judgment and decree passed by the learned Trial Judge was clearly perverse and contrary to law and, therefore, he preferred Civil Appeal No.9 of 2005 in the District Court against the said judgment. The said appeal was allowed by the learned Additional District Judge in favour of the respondent.
Mr. Pujara has
further submitted that the grounds of challenge in the present case are that the marriage between the parties cannot be saved as there are no circumstances showing or suggesting that the husband and wife can live together happily. It is established fact that the wife had withdrawn from the Society of the respondent since May 1997 i.e. more than 13 years now, that neither party has shown any interest in staying with each other, that both the Courts had made serious efforts for reconciliation between the parties which failed and thereafter only the decree of dissolution was passed. In support of this contention, Mr. Pujara relied on the judgment of the Apex Court in the case of SUJATA UDAY PATIL V/S. UDAY MADHUKAR PATIL, (2006) 13 SCC 272 wherein it is held that matrimonial disputes have to be decided by Courts in a pragmatic manner keeping in view the ground realities. For this purpose, a host of factors have to be taken into consideration and the most important being whether the marriage can be saved and the husband and wife can live together happily and maintain a proper atmosphere at home for the upbringing of their offsprings. This the Court has to decide in the facts and circumstances of each case and it is not possible to lay down any fixed standards or even guidelines. Mr. Pujara further relied on the decision of the Apex Court in the case of RISHIKESH SHARMA V/S. SAROJ SHARMA, (2007) 2 SCC 263 wherein it is held that in the instant case, the marriage is irretrievably broken down with no possibility of the parties living together again. It will not be possible for the parties to live together and, therefore, there is no purpose in compelling both the parties to live together. Therefore, the best course is to dissolve the marriage by passing a decree of divorce so that the parties who are litigating since 1981 and have lost valuable part of life can live peacefully for remaining part of their life.
Mr. Pujara has
further submitted that though the respondent has filed affidavit-in-reply pursuant to the notice issued by this Court in the Second Appeal, on 13.03.2009, the said reply is verbatively on the same line as it was filed on 18.12.2008.
Since certain
issues were raised by the respondent against the maintainability of the Second Appeal, the appellant has filed rejoinder dealing with all these contentions raised by the respondent in his reply. As far as the maintainability of the Second Appeal is concerned, Mr. Shah has submitted that the Second Appeal is maintainable under Section 28 of the Hindu Marriage Act and it is very much clear by the previous and successive judgments delivered by the Courts including this Court. He relied on the decision of this Court in the case of BAI UMIYABEN V/S. AMBALAL LAXMIDAS, AIR 1966 GUJARAT 139 wherein it is held that the words decrees and orders made by the Court in S. 28, Hindu Marriage Act, 1955 include not only original decrees and orders but also appellate decrees and orders. Hence, the provision enacted in the second part of S. 28 makes such decrees and orders appealable and the words under any law for the time being in force in S. 28 of the Hindu Marriage Act, 1955 provide not only the procedure for filing the appeal and the forum in which the appeal must be filed but also the jurisdiction and power of the Court in dealing with the appeal so filed. The right of appeal is conferred by the Section but the nature and extent of the right of appeal which depend on the procedure, jurisdiction and powers of the Court in dealing with the appeal are governed by the law for the time being in force which includes inter alia the Code of Civil Procedure. Thus, a right of second appeal is conferred by S. 28 but that right of appeal is limited to the grounds set out in S. 100 of the Code of Civil Procedure and can, therefore, be exercised only on questions of law and not on questions of fact.
Mr.
Shah further relied on the decision of this Court in the case of PATEL DHARAMSHI PREMJI
V/S. BAI SAKAR KANJI, AIR 1968 GUJARAT 150 wherein also it is reiterated that the right of Second Appeal conferred by Section 28 is limited to the grounds set out in Section 100 of the Code of Civil Procedure and can, therefore, be exercised only on question of law and
not on question of fact. What should be the quantum of the amount of permanent alimony on a
consideration of the factors set out in Section 25 is essentially a question of fact, and no Second Appeal can lie to challenge the determination of the amount of permanent alimony made by the lower Appellate Court, unless the complaint be that the lower Appellate Court has failed to take into account any factors set out in Section 25 or taken into account any extraneous or irrelevant factors.
Mr.
Shah further submitted that in the case of BHAVNA AMIT PATHAKJI V/S. AMIT MANAVANTCHANDRA PATHAKJI, in Civil Reference No.2 of 2007 decided on 23.10.2007,
a specific question arose before this Court as to whether, after amendment of Section 28 of the Hindu Marriage Act by Marriage Laws Amendment Act, 1976 (Act No.68 of 1976), a second appeal under Section 100 of the Code of Civil Procedure against the judgment and decree of the first Appellate Court would be maintainable. After considering the relevant statutory provisions and the decided case law on
the subject, this Court comes to the conclusion that Second Appeal against the judgment and decree of the first Appellate Court under the Hindu Marriage Act would be maintainable under Section 28 of the Hindu Marriage Act, as it stands after the amendment of Section 28 of the Hindu Marriage Act, by Marriage Laws Amendment Act, 1976 and not under Section 100 of the Code of Civil Procedure, but the same would be regulated by Section 100 of the Code of Civil Procedure. Mr. Shah, therefore, submitted that the controversy is now set at rest after the above judgment of this Court.
Mr.
Shah further submitted that a substantial question of law is raised by the appellant in the present Second Appeal and that substantial question of law is whether the petition for divorce is maintainable, if filed without joining the alleged adulterers as parties or it suffers from non-joinder of parties and, therefore, becomes not maintainable. He
has submitted that Rule 5 of the Bombay High Court Hindu Marriage and Divorce Rules, 1955 mandatorily require alleged adulterers as co-respondents in the petition for divorce filed on the ground of adultery. He has invited the Court's attention to Rule 5 which says that in every petition for divorce or judicial separation on the ground that the respondent has after the solemnization of the marriage, had voluntary sexual intercourse with any person other than the petitioner, the petitioner shall make such person a co-respondent. The petitioner may, however, apply to the Court by an application supported by an affidavit for leave to dispense with the joinder of such person as a co-respondent on any of the following grounds :-
That the
name of such person is unknown to the petitioner although he has made due efforts for discovery;
that such
person is dead;
that the
respondent being the wife is leading a life of a prostitute and that the petitioner does not know any person with whom the respondent has, after the solemnization of the marriage, had voluntary sexual intercourse;
for any
other sufficient reason the Court may deem fit to consider.
He
has further submitted that the petition for divorce was filed by the respondent in violation of Rule 5 as neither the petitioner has joined the alleged adulterers as party respondents nor any affidavit is filed seeking dispensation of joining such persons as parties on any of the four grounds mentioned in Rule 5. He has, therefore, submitted that the divorce petition itself is not maintainable and that is the substantial question of law raised by the appellant in the present Second Appeal.
In
support of this submission, Mr. Shah relied on the decision of this Court in the case of MAGANLAL BUDHAIABHAI PATEL V/S. BAI DAHI, AIR 1971 GUJARAT 33 wherein it is held that the word 'shall' in Rule 5 of the Hindu Marriage and Divorce Rules, 1955 (Bombay High Court) is mandatory and, therefore, person with whom a woman is alleged to be living in adultery when known is a necessary party in divorce proceedings. If the name of such person is unknown, the necessary affidavit in that behalf of the person committing adultery being unknown is necessary. This has considerable effect on the question of living in adultery because if such person is unknown and could not be made a party the evidence has to be appreciated in that light.
Mr.
Shah has further submitted that another substantial question was raised by the appellant in the present Second Appeal is whether the District Court has power to grant divorce on the ground which is not provided under the statute i.e. irretrievable breakdown of marriage. He has submitted that Section 13 enumerates several grounds for divorce. However, the ground on which the learned Additional District Judge has decided the appeal granting divorce to the respondent is not the ground on which divorce can be granted. In support of this submission, he relied on the decision of the Apex Court in the case of VISHNU DUTT SHARMA V/S. MANJU SHARMA, 2009 AIR SCW 2984 wherein it is held that on a bare reading of Section 13 of the Act, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature. The Court further observed that a mere direction of the Court without considering the legal position is not a precedent. If the Court grants divorce on the ground of irretrievable breakdown, then the Court shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. The Court held that this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts.
Mr.
Shah further submitted that even after the Appellate Court's decision, the respondent herein got remarried. However, the remarriage by the respondent does not make the appeal as infructuous. In support of this submission, he relied on the decision of the Apex Court in the case of TEJINDER KAUR V/S. GURMIT SINGH, AIR 1988 SC 839, wherein it is held that under the Hindu Marriage Act, 1955, monogamy is the rule and a party can only contract a valid second marriage after the first marriage ceases to exist in the manner envisaged by S. 15. The rule laid down in this section is an integral part of the proceedings by which alone both the parties of the decree of divorce can be released from their incapacity to contract a fresh marriage. Parliament by the Marriage Laws (Amendment) Act, 1976 has done away with the period of waiting by deleting the proviso to Section 15. The deletion of the proviso has given rise to a question of great difficulty. The section when it speaks of a case where there is a 'right of appeal' does not in terms cover a case of an application for special leave to appeal to the Supreme Court under Art. 136 of the Constitution. Though S. 15 in terms does not apply to a case of special leave to appeal to the Supreme Court, a spouse who has won in the High Court and got a decree of dissolution of marriage cannot by marrying immediately after the High Court's judgment take away the right of presenting an application for special leave to appeal from the other spouse. The successful party must wait for a reasonable time and make sure whether an application for special leave has been filed in the Supreme Court. Thus where a decree for dissolution is passed and appeal against it dismissed by High Court and the husband remarries after one month of the High Court's order, he cannot be allowed to raise the plea that since he has remarried the special leave petition filed by the wife becomes infructuous. It was incumbent on him to have apprised himself as to whether the appeal in the High Court was still pending, and if not, whether the period for filing a special leave petition to the Supreme Court had expired.
Mr.
Shah further relied on the decision of the Apex Court in the case of SUMAN KAPUR V/S. SUDHIR KAPUR, AIR 2009 SC 589 wherein it is held that it is true that filing of appeal under Article 136 of the Constitution of India is not a right of the party. It is the discretion conferred on Supreme Court to grant leave to the applicant to file appeal in appropriate cases. But, since the Constitution allows a party to approach Supreme Court within a period of 90 days from an order passed by the High Court, no precipitate action should be taken by any party creating the situation of fait accompli. The Court further held that considering the fact that divorce decree granted in favour of husband on finding that he has suffered mental cruelty at hands of wife to file SLP against the decree to expire has remarried, the Court directed the respondent husband to pay an amount of Rs.5 Lacs to the appellant wife.
Based
on this judgment, Mr. Shah has submitted that the learned Additional District Judge has passed the judgment and order granting divorce on 03.01.2007. The limitation for filing the second appeal is 90 days as per Article 116 of the Limitation Act. The Second Appeal was filed on 23.01.2007. However, the same was dismissed by this Court for want of prosecution on 14.08.2008. The notice for restoration of the Second Appeal was issued on 21.11.2008 and Second Appeal was restored on 12.12.2008. The fact still remains that before the statutory time limit for filing the appeal expired, the respondent got remarried on 03.02.2007 and the marriage was registered on 05.02.2007. He has, therefore, submitted that the said remarriage is contrary to the judgment of the Apex Court and on that ground, it is not now open for the respondent to raise a contention that the Second Appeal becomes infructuous.
Mr.
Shah further submitted that the findings of fact recorded by the learned Additional District Judge on the basis of gross misappreciation of evidence and which go to the root of the matter can certainly be interfered with by this Court in the present Second Appeal. He has further submitted that the allegations made against the appellant are not true and are not admitted. He has further submitted that the allegation about the pregnancy in the year 1997 out of the sexual relationship with other persons are not reflected in the petition for divorce filed by the respondent on 26.06.2000. In this petition, the respondent had not stated anything about the alleged pregnancy of the appellant in the year 1997 out of sexual relationship with other persons, much less not a single averment or the allegation was made in the petition for divorce about this incident. He has further submitted that in view of the observations made by the learned Trial Judge, it is necessary to take note of the fact that the respondent has not denied that he had no access to the appellant at the relevant time and that he has no where stated that the foetus was not of him and that he had failed to establish any non-executant of matrimonial relationship with the appellant at the relevant time. He has, therefore, submitted that the respondent has not dispelled the presumption provided under Section 112 of the Indian Evidence Act, 1872 which presumes conclusively the legitimacy of child, born during the marriage.
In
support of this submission, Mr. Shah relied on the decision of the Apex Court in the case of PERUMAL NADAR (DEAD) BY LEGAL REPRESENTATIVE V/S. PONUSWAMI NADAR (MINOR), AIR 1971 SC 2352, wherein it is held that unless husband is able to establish absence of access, presumption raised under Section 112 of the Evidence Act will not be displaced. Mr. Shah further relied on the decision of the Punjab & Haryana High Court in the case of OMPRAKASH V/S. SMT. ROSHNI, AIR 1985 P & H 364 wherein it is held that the proof required to prove adultery cannot necessarily be what at times is said proof beyond a shadow of doubt. At the same time, in light of Section 112 of the Evidence Act, the presumption of legitimacy is highly favoured by law and it is necessary that proof of non-access must be clear and satisfactory. The Court has to examine the evidence with a lynx eye. Access or non-access, connote the existence or non-existence of opportunities for marital intercourse. The relevant facts can no doubt be established not merely by positive evidence of the parties, but by circumstantial evidence also. The established circumstances have essentially to be such as would lead the guarded judgment of a reasonable and just man to the conclusion that the parties had no opportunity of intercourse.
Mr.
Shah further submitted that the learned Additional District Judge has grossly erred in appreciating the evidence recorded by the learned Trial Judge in respect of the alleged letter dated 30.12.1990 Exh. 21. He submitted that the appellant had given birth to one male child, namely, Neel on 06.12.1991 and the son is thereafter kept by the respondent with him and in view of these facts, even if the alleged letter, for the sake of the argument taken as correct, the respondent has condoned that act of the appellant by co-habitating with the appellant and staying with the appellant for a long period of 10 years thereafter. In support of this submission, he relied on the decision of the Apex Court in the case of SMT. CHANDRA MOHINI SRIVASTAVA V/S. SHRI AVINASH PRASAD SRIVASTAVA AND ANOTHER, AIR 1967 SC 581.
Mr.
Shah has, therefore, submitted that all the objections raised by the respondent against the maintainability of the Second Appeal either on law or on merits have no force at all in the eye of law and hence, the Court should ignore these objections and reverse the judgment and decree passed by the learned Additional District Judge and the appeal of the appellant be accordingly allowed.
Having
heard the learned Counsels appearing for the parties and having considered their rival submissions in light of the statutory provisions contained in Hindu Marriage Act, 1955 and the Rules framed thereunder as well as decided case law on the subject and having minutely examined the judgments and decrees passed by the Courts below, this Court is of the view that the judgment and decree for divorce passed by the lower Appellate Court and awarding sum of Rs.2 Lacs towards permanent alimony and maintenance does not call for any interference by this Court while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure and, therefore, both these Second Appeal as well as Cross objection deserve to be dismissed and are accordingly dismissed.
The
appellant wife has raised three substantial questions of law before this Court. They are (1) Whether the Decree for divorce can be passed on the ground of irretrievable breakdown of marriage ? (2) Whether petition for divorce is maintainable on account of non-joinder of necessary party ? and (3) Whether the lower Appellate Court has committed any error in not following procedure prescribed under Section 23 (2) of the Hindu Marriage Act, 1955 ?
Before
these questions are considered by the Court, it is necessary to consider the preliminary objections raised by the respondent husband against the maintainability of this Second Appeal. The main argument canvassed on behalf of the respondent husband is that no Second Appeal is provided under Section 28 (1) of the Hindu Marriage Act, 1955. It only provides for one appeal against the decree passed by the Court in exercise of its original civil jurisdiction i.e. First Appeal. However, in view of the decision of the Division Bench of this Court in the case of Bhavna Amit Pathakji V/s. Amit Manavantchandra Pathakji, in Civil Reference No.2 of 2007 decided on 23.10.2007, this question no longer remains res integra. The Division Bench, in this Reference, held that Second Appeal against the judgment and decree of the First Appellate Court under the Hindu Marriage Act would be maintainable under Section 28 of the said Act as it stands after the Marriage Laws (Amendment) Act, 1976, and not under Section 100 of the Code of Civil Procedure, but the same would be regulated by Section 100 of the Code of Civil Procedure. In view of this binding decision, challenge to the maintainability of this Second Appeal under Section 28 (1) of the Act fails.
The
second challenge to the maintainability of this Second Appeal is that no substantial question of law arises out of the order of the lower Appellate Court. However, looking to the questions posed by the appellant and framed by the Court for its consideration and determination, it cannot be said that no substantial question of law arises. This second challenge also, therefore, fails.
So
far as the first question is concerned, it appears to the Court that the appellant has erroneously presumed that the First Appellate Court passed the decree for divorce only on the ground of irretrievable breakdown of marriage. In fact, it is not so. The First Appellate Court, at great length, discussed several issues, which, inter alia, includes desertion, living adulterous life with other person, the appellant having pregnancy when she was not living with the respondent husband, abortion etc. and thereafter, the Court came to the conclusion that it was not possible for them to live together and there was irretrievable breaking down of marriage. The divorce was, therefore, the only solution. It is true that as per the judgment of the Apex Court in the case of Vishnu Dutt Sharma (Supra), no Court can add any ground to Section 13 of the Act, however, after considering any one or more grounds enumerated in Section 13 of the Act, the Court, by way of giving cumulative effect, holds that there is an irretrievable breakdown of the marriage. It is precisely for this reason, the Apex Court in the case of Sujata Uyay Patil (Supra) and Rishikesh Sharma (Supra) held that a host of factors have to be taken into consideration and the most important being whether the marriage can be saved and the husband and wife can live together happily and maintain a proper atmosphere at home for the upbringing of their offsprings. In the present case, there is no question of having such atmosphere at the matrimonial home. The petition for divorce was filed on the ground of desertion. Certain allegations are made in relation to adultery. The appellant has filed criminal complaint against the respondent and his family members. But it is of no consequence. She has also filed petition for restitution of conjugal rights and it was withdrawn. They are living separately since May, 1997, more than 13 years have passed. In such a situation, one would draw a definite conclusion that the marriage between them is irretrievably broken down. However, this is not the sole ground on which the decree for divorce was passed by the First Appellate Court. The first question is, therefore, answered in negative i.e. against the appellant and in favour of the respondent.
The
second question is in relation to the challenge to the maintainability of petition for divorce on account of non-joinder of necessary party. The Trial Court has framed this issue and decided it against the present respondent husband. The First Appellate Court, strictly speaking, did not address itself on this point. It is true that Rule 5 of Bombay High Court, Hindu Marriage and Divorce Rules, 1955 mandatorily requires alleged adulterers as co-respondents in the petition for divorce filed on the ground of adultery. This Court in the case of Maganlal Budhaiabhai Patel (Supra) held that the word 'shall' in Rule 5 is mandatory and, therefore, person with whom a woman is alleged to be living in adultery when known is a necessary party in divorce proceedings. It is, however, to be kept in mind that the petition for divorce is not filed on the ground of adultery. The petition is basically filed on the ground of desertion. There are averments with regard to adultery. However, there was no concrete or definite evidence about the names of persons with whom the appellant wife was living with adulterous life. The facts regarding pregnancy of the appellant have also come to the forefront during the course of trial, but in view of the rival contentions, it is difficult to implicate any one. The respondent husband, on assumption, howsoever strong it may be, cannot implicate any one as co-respondents in the petition for divorce and invite troubles for him from such persons. It is true that he could have filed an affidavit and sought leave of the Court as contemplated in Rule 5. But, such an inadvertent lapse does not vitiate the decree for divorce, more particularly, it is not solely based on adultery. The second question is, therefore, answered in negative i.e. against the appellant and in favour of the respondent.
The
third question is in relation to not following the procedure prescribed under Section 23 (2) of the Hindu Marriage Act, 1955. Though this question is raised by the appellant and framed by the Court at the time of admission of this Second Appeal, no submissions are made by the learned Counsels on this question. Section 23 (1) provides for satisfaction of the Court on certain issues enumerated therein. Section 23 (2) imposes an obligation on the Court to make every endeavour to bring about reconciliation between the parties before proceeding to grant any relief under the Act, in every case. It is the case of the appellant that the First Appellate Court has not followed this procedure and, therefore, decree for divorce deserves to be set aside. It is true that if for some reason, the reconciliation procedure was not followed by the Trial Court, it can be followed by the Appellate Court. Here in the present case, the Trial Court did not find any ground for granting relief and hence, the question of bringing about reconciliation did not possibly arise. The First Appellate Court, while granting decree for divorce, has observed that the Court should seriously make an effort to reconcile the parties, but, it found that the breakdown was irreparable. The Court further observed that the consequences of preservation in law of the unworkable marriage which was long ceased to be effective are bound to be a source of greater misery for the parties. The Court further observed that considering the circumstances and peculiar facts of the case on hand and the effort made by the parties including the Court, it appeared that both the parties have crossed the point of no return. A workable solution was not possible. Parties at this stage could not reconcile themselves and live together forgetting past as a bad dream. It is only due to this reason, the Courts have taken the view time and again that the Court in its anxiety to promote an enforced reconciliation should not condone cruelty. In this view of the matter, the third question is answered in negative i.e. against the appellant and in favour of the respondent.
Over
and above these questions, the appellant has raised an issue in oral arguments that before the expiry of the statutory period of filing an appeal challenging the decree for divorce before this Court, the respondent got remarried and hence, on this ground, the decree deserves to be set aside. The original Section 15 with its proviso was intended to see that the spouse who obtained a decree for divorce would not rush to marry again during the finalization of the decree by the Appellate Court and also in cases where the decree is finally confirmed by the Appellate Courts within one year from the date of decree of the First Court, by postponing the remarriage till after the expiry of one year from the date of decree in the Court of first instance. By Section 10 of the Marriage Laws (Amendment) Act, 1976, the original proviso was deleted. Here in the present case, the decree was passed by the First Appellate Court on 03.01.2007 and the respondent husband got remarried on 03.02.2007 i.e. before the expiry of the period of filing an appeal before this Court. It is, however, necessary to note that appeal so filed on 23.01.2007 was dismissed for want of prosecution on 14.08.2008 and notice in Misc. Civil Application for restoration was received by the respondent on 21.11.2008 and appeal was restored on 12.12.2008. The respondent, therefore, came to know about filing of Second Appeal only after about two years. Due to the respondent's remarriage before the expiry of statutory period of appeal, the respondent seems to have committed breach of Section 15 of the Act. The same does not affect the decree of dissolution itself as it prescribes only a limit for the purpose of remarriage of the spouses thereunder. Precisely for this reason, the Apex Court in the case of Suman Kapoor V/s. Sudhir Kapoor (Supra), without disturbing the decree for divorce granted on the ground of cruelty, directed the husband to pay an amount of Rs.5 Lacs to the wife. In the present case, the First Appellate Court awarded an amount of Rs.2 Lacs towards permanent alimony and maintenance, even in absence of any application to this effect. Thus, this contention raised by the appellant fails.
One
more issue raised by the appellant is with regard to respondent husband's failure to establish that he did not have any access to the appellant wife in or around August, 1997 when she became pregnant. The legal position is very clear in this regard. However, the ultimate outcome depends on the facts and circumstances of each case. The First Appellate Court discussed this issue at great length. The appellant wife, in her cross-examination had admitted that she was pregnant in the month of August, 1997 which was aborted in November, 1997. The husband, therefore, could not be held responsible for this foetus as she deserted the husband in May, 1997. The learned Trial Judge has ignored this admission of wife which is sufficient to draw a finding regarding her adulterous life. The learned Trial Judge has recorded a finding that the husband failed to establish that the foetus did not belong to him. It is, however, evident from record that the learned Trial Judge has positively rejected that particular question put to her in her cross-examination. On behalf of the husband, a question was put to her as to whether after the birth of son Neel, she was ever pregnant by her husband. On the one hand, the learned Trial Judge rejected that particular question and on the other hand, he recorded the finding that the said foetus was not of husband and was not established. The First Appellate Court, therefore, rightly held that such contradictory finding cannot be sustained in law. This Court, therefore, does not find any substance or merit in this contention.
In
view of the above discussion and considering the entire facts and circumstances of the case, this Court is of the view that judgment and decree for divorce passed by the First Appellate Court does not call for any interference by this Court and, therefore, this Second Appeal fails without any order as to costs.
In
view of the above judgment and order in the main Second Appeal, the Court does not find any substance in the cross-objection and hence, it, too fails.
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