BIPINCHANDRA JAISINGHBAI SHAH Vs. PRABBAVATI

JUDGEMENT

(1.) This is an appeal by special leave against the judgment and decree of the High Court of judicature at Bombay dated August 22, 1952, reversing those of a single Judge of that Court on the Original Side, dated March 7, 1952, by which he had granted a decree for dissolution of marriage between the appellant and the respondent.

(2.) The facts and circumstances of this case may be stated as follows. The appellant who was plaintiff, and the respondent were married at Patan on April 20, 1942, according to Hindu rites of Jain Community. The families of both the parties belong to p73 Patan, which is a town in Gujarat, about a night's rail journey from Bombay. They lived in Bombay in a two room flat which was in occupation of the appellant's family consisting of his parents and his two sisters who occupied the larger room called the hall, and the plaintiff and the defendant who occupied the smaller room called the kitchen. The appellant's mother who is a patient of asthama lived mostly at Patan. There is an issue of the marriage, a son named Kirit, born on September 10, 1945. The defendant's parents lived mostly at Jalgaon in the East Khandesh district in Bombay. The parties appear to have lived happily in Bombay until a third party named Mahendra, a friend of the family came upon the scene and began to live with the family in their Bombay flat some time in 1946, after his discharge from the army. On January 8, 1947, the appellant left for England on business. It was the plaintiff's case that during his absence from Bombay the defendant became intimate with the said Mahendra and when she went to Patan after the plaintiff's departure for England she carried on 'amorous correspondence' with Mahendra who continued to stay with the plaintiff's family in Bombay. One of the letters written by the defendant to Mahendra while staying at the plaintiffs flat in Bombay, is Ex. E, as officially translated in English the original being in Gujarati except a few words written in faulty English. This letter is dated April 1, 1947, written from the plaintiff's house at Patan, where the defendant had been staying with her mother in law. This letter had been annexed to the plaint with the official translation. It was denied by the defendant in her written statement. But at the trial her counsel had admitted it to have been written by her to Mahendra. As this letter started all the trouble between the parties to this litigation it will have to be set out in extenso hereinafter. Continuing the plaintiff's narrative of events as alleged in the plaint and in his evidence, the plaintiff returned to Bombay from abroad on May 20, 1947. To receive him back from his foreign journey the whole family including the defendant was therein Bombay. According to the plaintiffs he found that on the first night after his return his bed had been made in the hall occupied by his father and that night he slept away from his wife. As this incident is said to have some significance in the narrative of events leading up to the separation between the husband and the wife and about the reason for which the parties differ, it will have to be examined in detail later. Next morning that is to say, on May 21, 1947, the plaintiff's father handed over the letter aforesaid to the plaintiff who recognised it as being in the familiar handwriting of his wife. He decided to tackle his wife with reference to the letter. He handed to a photographer to have photo copies made of the same. That very day in the evening he asked his wife as to why she had addressed that letter to Mahendra. She at first denied having written any letter and asked to see the letter upon which the plaintiff informed her that it was with the photographer with a view to photo copies being made. After receiving the letter and the photo copies from the photographer on May 23, the plaintiff showed the defendant the Photo copy of the letter in controversy p73 between them at that stage and then the defendant is alleged to have admitted having written the letter to Mahendra and to have further told the plaintiff that Mahendra was a better man than him and that Mahendra loved her and she loved him. The next important event in the narrative is what happened on May 24, 1947. On the morning of that day, while the plaintiff was getting ready to go to his business office his wife is alleged to have told him that she had packed her luggage and was ready to go to Jalgaon on the ostensible ground that there was a marriage in her father's family. The plaintiff told her that if she had made up her mind to go, he would send the car to take her to the station and offered to pay her Rs. 100 for her expenses. But she refused the offer. She left Bombay apparently in the plaintiff's absence for Jalgaon by the afternoon train. When the plaintiff came back home from his office, he "discovered that she had taken away everything with her and had left nothing behind". It may be added here that the plaintiff's mother had left for Patan with his son some days previously. Plaintiff's case further is that the defendant never came back to Bombay to live with him, nor did she write any letters from Jalgaon, where she stayed most of the time. It appears further that the plaintiff took a very hasty, if not also a foolish, step of having a letter addressed to the defendant by his solicitor on July 15, 1947, charging her with intimacy between herself and Mahendra and asking her to send back the little boy. The parties violently differ on the intent and effect of this letter which will have to be set out in extenso at the appropriate place. No answer to this letter was received by the plaintiff. In November 1947 the plaintiffs mother came from Patan to Bombay and informed the plaintiff that the defendant might be expected in Bombay a few days later. Thereupon the plaintiff sent a telegram to his father-in-law at Patan. The telegram is worded as follows:-

(3.) The suit was contested by the defendant by a written statement filed on 4th February 1952, substantially on the ground that it was the plaintiff who by his treatment of her after his return from England had made her life unbearable and compelled her to leave her marital home against her wishes on or about 24th May 1947. She denied any intimacy between herself and Mahendra or that she was confronted by the plaintiff with a photostat copy of the letter, Ex. E, or that she had confessed any such intimacy to the plaintiff. She admitted having received the Attorney's letter, Ex. A, and also that she did not reply to that letter. She adduced her father's advice as the reason for not sending any answer to that letter. She added that her paternal uncle Bhogilal (since deceased) and his son Babubhai saw the plaintiff in Bombay at the instance of the defendant and her father and that the plaintiff turned down their request for taking her back. She also made reference to the negotiations between the defendant's mother and the plaintiff mother to take the defendant back to Bombay and that the defendant could not go to Bombay as a result of the telegram of 13th November 1947, and the plaintiffs father's letter of 15th November 1947, aforesaid. She also stated that the defendant and her son Kirit both lived with the plaintiff family at Patan for over four months and off and on several occasions. The defendant's definite case is that she had always been ready and willing to go back to the plaintiff and that it was the plaintiff who all along had been willfully refusing to keep her and to cohabit with her. On those allegations she resisted the plaintiffs claim for a dissolution of the marriage.