DESIDERIO SANTAN SEBASTIAO PRETTO Vs. NATALINA FILOMENA GOMES

JUDGEMENT

(1.) THIS first appeal is filed by the appellant/husband Desiderio Santan Sebastiao Pretto being aggrieved by the judgment and Order dated 19-8-1997 passed by the Civil Judge, Senior Division, Mapusa in Special Civil Suit No. 125/93/a. By the impugned judgment and order, the learned Civil judge, Senior Division, Mapusa dismissed the suit of the appellant/plaintiff which he had filed praying for dissolution of his marriage with the respondent/defendant, Natalina.

(2.) THE appellants case is that he got married to the respondent on 27-12-1966. Three children were born of this wedlock who are with the wife. The case of the appellant is that in the year 1972, the respondent deserted the conjugal house and was living at Marwado, Mapusa. According to the appellant, the respondent refused to live with the appellant and started saying that the appellant should come and live with her at Tivim. The appellant tried to reconcile and, in fact, stayed with her at Tivim for sometimes but the respondent and her parents started abusing and insulting him. The appellant (or respondent?) also asked her to leave and stay in his house at Aldona. Thus, unable to bear the torture, the appellant started staying separately. On 6-9-93, the appellant filed the present suit for divorce under Article 4 (4) and (5) of the Portuguese Civil Code, that is on the ground of complete abandonment of the conjugal domicile for a period of not less than 3 years. Earlier to the present suit, the appellant had filed another suit at Bicholim Court, seeking to restrain the respondent from constructing a building at Tivim. According to the appellant, the respondent has no intention to return to the matrimonial home, but the husband and the wife have been residing separately de facto for last many years. The respondent has been working in Saudi Arabia and has completely prejudiced the mind of the children. The children do no want to come to see the appellant. The appellant has, therefore, prayed that his marriage with the respondent be dissolved on the ground of complete abandonment of conjugal domicile and also for ill-treatment by the respondent to the appellant.

(3.) THE respondent/defendant/wife filed written statement, wherein all the contentions raised by the appellant/husband were denied. It is her case that the appellant is a seaman by profession and most of the time, he is away from Goa. According to her, when she conceived for the first time, she came to her parents house at Tivim for delivery, where she gave birth to her eldest son Sylvester on 1-10-1967. It was decided by the appellant and the respondent mutually that till Sylvester was reasonably grown up, the respondent would stay along with Sylvester at her parents place at Tivim. At the appellants place, there was nobody to look after Sylvester, except his aged mother and the appellant himself was always out of Goa on account of his job. In the year 1970, another son was born by name Melvin and in the year 1971, third son by name Michael was born. By that time, first son Sylvester was of the school going age and was, in fact, going to School at St. Britto High School, Mapusa from Tivim. When the second and third child was born, it was decided by the appellant and the respondent mutually that the respondent would stay at Tivim till all the children were fairly grown up. In the year 1975, the second son also started going to school. The appellant suggested that it would be difficult for the respondent to bring both the sons to Mapusa in the early hours of morning for sending them to school and proposed that the respondent should acquire a rented house at Mapusa, so that it would be convenient for the children to attend school. In the year 1975, the respondent procured a rented house at Marwado, Mapusa and started residing there along with the children. The respondent used to stay with the appellant sometimes at Tivim, and sometimes at Aldona, whenever the appellant used to come on holidays. The appellant also used to stay sometimes with the respondent and children at Aldona, as well as at Tivim, so also at Mapusa. In the year 1981, the appellant stopped visiting the children and the respondent at Mapusa. It is the case of the respondent that the appellant is a person of whimsical character, temperamental in attitude and miser at core, without any education. According to the respondent, the appellant used to pick up quarrels with the respondent and the children on some pretext or other. According to her, the appellant did not send any money for the maintenance of the respondent and the children for a long time and the respondent virtually lived on charity of her parents and was forced to take up a job of nurse in Remanso Hospital. According to her she has brought up the children with utmost sacrifice from her side. Since the appellant did not bother to maintain her and the children, she was forced to serve legal notice on the appellant and it was thereafter, that with great reluctance the appellant sent some money for the expenses of the respondent, however, from 1981, the appellant has virtually stopped sending money. He also stopped visiting the respondent and the children. To the shock of the respondent, the appellant filed a suit for divorce on the ground of alleged adultery of the respondent which he subsequently withdrew unconditionally. She has further averred in the written statement that since the children were studying at St. Britto High School at Mapusa, and as she herself was working as Nurse at Mapusa and since she had to attend night duties, she had to stay at Mapusa. She has further submitted that whenever, that is prior to 1981, the appellant used to come to stay with the respondent and the children at Mapusa, he used to quarrel, abuse and insult them. According to her, the appellant never tried to reconcile the marriage. It is also her case that right from the beginning, the children are in her custody and care and that she has brought them up and now they are settled in life because of her sacrifice. She has denied that she has abandoned the conjugal domicile and that there is de facto separation etc. She has stated that though there was separation, it was not freely consented to by herself. She has also submitted that the appellant never showed any love and affection for the children and stopped visiting them, as well as the respondent herself. She has also stated that she is not working in Saudi Arabia, but working in a private hospital at Porvorim. She has denied that she is well of and does not require the company of the plaintiff. She has also denied that the respondent has prejudiced the mind of the children. In short, the allegation of abandonment of the conjugal domicile is denied by the respondent and she has prayed that the suit of the appellant/plaintiff for divorce be dismissed.