GREGORY JOSEPH SALVADOR PAIS Vs. MELBA DOLORES PAIS

JUDGEMENT

(1.) This Appeal by the husband is directed against the judgment and decree dated 29-5-1978 passed by the Third Additional District Judge, Bangalore, in Matrimonial Case No. 10 of 1973, on his file, allowing the petition of the wife Mrs. Melba Dolores Pais for j udicial separation and for custody of children, instituted Under Ss. 22 and 23 read with S. 41 of the Indian Divorce Act, 1869, (here in after referred to as the Act).

(2.) The relevant petition averments in brief are as follows: The petitioner and the respondent in the petition are Indian Christians. They were married on 21-8-19,61 in h1flagres Church. Mangalore, and. they last resided together at 25A, Magrath Road, Civil station, Bangalore. They have three sons born out of wedlock. The Petitioner and the respondent were not known to each other prior to their marriage. The engagement ceremony in respect of the marriage look place on 21-8-1961. Since marriage, their life has not been smooth and happy. The in-laws of the petitioner did not take kindly to her, They ill-treated her, the respondent Joining with them it, is The ease of the petitioner that since marriage, she has been subjected to both mental and physical cruelty at the bands of the respondent. After marriage, the respondent left to Kuwait. The petitioner joined in Oct. 16. The sisters of the respondent were living with them at Kuwait. The respondent was addicted to heavy drinking and was behaving cruelly with the petitioner and was beating her without or reason. The trouble aggravated in the year 1962 when It* Petitioner was expecting bye first child and was in a delicate state of health. The. respondent's sister got upset for no reason and confirmed cry and respondent blared the Petitioner for that and forced her ask forgiveness is of his sister. The in-laws were living with the petitioner a-ad the workload of the Petitioner increased very much and though she requested her husband to take her to a separate residence, he refused to do so. The petitioner wife. for India on 30-4-1962 for confinement and the respondent insisted that she should, for confinement go to his mother's house instead of going to her mother's hoist. Fever after the birth of the first son when The respondent came to India, he . Frequently quarreled with tile Petitioner and made her life desirable The Petitioner went back to Kuwait in, Dec 1962 and the respondent, continued to drink heavily and 4real her cruelly and that made her live in perpetual fear jeopardising her health. On 23-12-1974, when the respondent fell t received a letter from his sister regarding money matter, be. was 1.1psP1 and, attacked the petitioner by banging her head against the wall, and strangling tier, and, but for the intervention of a friend who was present then. she would have lost her life. The brother of the petitioner was sent for and then the respondent behaved as if nothing had transpired and. after his departure, the respondent got the petitioner to pack all her clothes and brought a can of petrol and threatened to set fire to it and burn The same During the Years 1965, 1966 and 1967, the same cruel treatment w as Incited (nit to her by she respondent, Even thereafter, when the petitioner came to India. the respondent was writing 1hrealening letters and was not sending remittances lo. the petitioner; she had come to India in early 1970. She had to struggle to maintain herself and her children. in spite of the fact that the respondent was getting a tat salary of Rs. 6,250/- per month, tax-free. The respondent came to India in 1971. He believed in witchcraft and he engaged the service of one Britto and began to act as per his instructions. Oil 21-12-1971, the respondent as usual got heavily drunk. locked himself in the bathroom for not less than five hours and broke everything he could lay his hands upon and attempted to commit suicide. The petitioner's younger brother visa sent for and he induced the Respondent to come out; the respondent came out with a knife to kill the petitioner and her children The Petitioner and her children locked themselves in a ro0in and escaped the and the respondent broke the door and hit the petitioner with a tea-poy. The respondent, before, being taken away 'from the house, attempted to set fire to curtains in the house, The same night, the respondent came with a knife in his hand and lived to assault the petitioner and her children; when they were rescued by the petitioner's brother, he went to the garage saying that he would commit suicide. He later left for Kuwait on 7-1-1972. From here he wrote letters threatening the petitioner with blackmail and ran her down to everyone, On 9-11-1972 the respondent came to Ban galore and commenced to drink and spend money lavishly without supporting the family. He wanted to go to Cannanore to contact some people who would help him in black magic and he went to Mangalore and brought some leaves broomsticks and some liquid etc., and kept them under lock and key and he told all the friends of the petitioner not to visit her and he was not allowing the petitioner to me anywhere, He would not allow her to play the radio or even' to talk to 1he children. On 30-11-1972. The petitioner was Spilled to go out or the house and then, when she started packing, be assaulted 1he petitioner by twisting her bands and ", took away all the things and been locked them up, When 1he petition was eldest son brought The duplicate keys and opened the floor, the respondent assaulted the child with hands and slippers and banged his had ~o the floor, The respondent later of a police complaint of robbery against the petitioner. By amending the petition subsequently the petitioner included one more para in the petition including these. The respondent got himself examined in 0ie case even before the petitioner led her evidence, remained in the country though he represented to the Court that lie would immediately leave for Kuwait and during The months of April and May 1974, he assaulted the petition anti her sop's and lodged a false complaint against her. As a consequence of the same, she had to face a criminal trial. The respondent also brought a large number of police men to The house to make an inventory of the movables. In the circumstances, the petitioner contended that it was impossible for her to continue to live with the respondent without danger to her health, life and limb. The petitioner further averred that she had not condoned these. She did not co-habit with, the respondent for the past 1 1/2 years prior to the institution of the petition. She also asserted That there was no collusion or contrivance b0ween herself and her husband in respect of the subject matter of the petition. In the circumstances, she prayed that a decree for judicial separation be passed against the respondent and further she be granted the custody of the children.

(3.) The respondent resisted the petition. While admitting the marriage with the petitioner, he asserted that his marital life with the petitioner was happy until about the end of 1965. He denied that his sisters were living with them, He had no house of his own in Kuwait and hence, they had to go and stay with his sister and her husband as paying guests. He denied that he was addicted to drink. He was drinking moderately on occasion, He denied that the struck his wife being drunk and treated her cruelly. He denied the incident of his sister crying as averred in the petition. According to him, during her pregnancy, the petitioner enjoyed remarkably good health and shed was given full medical attention. He further asserted that he asked here to stay in Mangalore for delivery as medical facilities were poor at her mother's palace at Karkal. He denied the incident that being drunk he hit the petitioner. He further asserted that the petitioner had associations with on J.J. Sequoia who was also known as Bosco; the petitioner and Bosco were very much in each other's company during the respondent's absence. The said Bosco described even certain intimate details of the petitioner's body and he even confessed that he was deeply in love with her. One Hebbar created scandal at Ban galore by spending days and nights at the petitioner's residence. But nevertheless, the respondent, with his love for his wife, accepted her assurance that she had not committed adultery with him. He maintained the petitioner and children luxuriously. Since 1967, the petitioner received from the respondent various sums of money amounting to a sum of Rest.3,00,000/-. He denied that he practiced any witchcraft. Britto was treating him for his heart and kidney infections. He denied that he wrote any threatening letter to his wife. He learnt that one Asirvadhan, who was called Granny, was living with the petitioner and that was a scandal. He further asserted that petitioner's association with him still continued. He denied that he assaulted and twisted the hands of his wife, lodged a police complaint or gave a report against the petitioner. He further asserted that he made everything in his power to make a success of his married life. But, despite the same, the petitioner treated the respondent with contempt although cohabitation continued till about the end of 1972. He asserted that the acts of cruelty alleged were condoned by the petitioner. According to him the petitioner had no affection for her children She was indifferent to their progress and was unfit to look after them. He was deeply attached to the children and he was willing to incur all the expenses connected with their maintenance and education. He was prepared to maintain them in one of the well-known Boarding Schools till he settled down in Bangalore. Hence, he prayed that the petition should be dismissed.