RAMCHANDRA ANAND SURYAVANSHI Vs. KALINDI RAMCHANDRA SURYAVANSHI

JUDGEMENT

(1.) THIS appeal by the husband, original petitioner, seeks to challenge the judgement and decree dated 29th August, 1986 passed by the City Civil Court, Bombay, dismissing the husbands petition for divorce on the ground of cruelty and desertion. The reliefs prayed for were under section 27 (1) (b) of the Special Marriage Act, 1954 on the ground of desertion and under section 27 (1) (d) on the cruelty. Apart from the question of the relief to be granted to the husband, an important question of law which arises in this appeal is as to whether the wife can be granted maintenance while dismissing the husbands petition. In other words whether the order dismissing the husbands petition is a decree within the meaning of the provision of section 37 of the Special Marriage Act, 1954. Another incidental question which arises is whether an application for interim alimony pendente lite can itself be treated as an application for grant of maintenance to the wife under section 37 of the said Act while dismissing the husbands petition for divorce. The few facts are as under :

(2.) THE husband, Ramchandra, and the wife, Kalindi admittedly belonged to Neo-Buddhist caste which is one of the scheduled castes. They are related to each other before their marriage. On 19th July, 1975 their marriage was solemnised under the Special Marriage Act, 1954. It appears that thereafter on 20th July, 1975 the parties also celebrated the marriage in accordance with the buddhist rites. The husband is working as a Teleprinter operator in the Associated Cement Co. , at Churchgate, Bombay. Presently, his salary is above Rs. 4,000/- per month. Admittedly, Ramchandra and kalondi had fallen in love and Kalindi had conceived from Ramchandra before the solemnisation of the marriage. Within four months of the marriage, that is to say, on 9th November, 1975 Kalindi gave birth to son Ravindra alias Ravi. The second son Rajiv alias Raju was born on 16th August, 1978. The petition for divorce has been filed on 9th September, 1982 and briefly stated the averments are as under :

(3.) ACCORDING to the husband, within a few months after the marriage the wife started picking up quarrels and insulting and abusing him. It is averred that the wife had deserted him several times, but he brought her back to the matrimonial home. It is further stated that the wifes father Krishnarao Kharat, who was formerly working as a Mechanic in B. E. S. T. was really not happy with marriage, which, as stated earlier was a love marriage. He always thought that his daughter deserved a better match. It is further alleged that the wife was carrying on an affair with one Dinkar Salve and had herself expressed a desire to the husband that she wanted a divorce from him so that she could marry Dinkar Salve. In Para 6 of the petition, it is alleged that on October 20, 1979 Shantabai Shishupal, sister of the wifes father, came to the matrimonial home and asked the wife to accompany her. On the husband refusing to permit the wife to leave the matrimonial home, it is alleged that Shantabai Shishupal came back in the afternoon of the same day and abused and threatened the husband with assault. Shantabai Shishupal is supposed to have brought some goondas during her 2nd visit on October 20, 1979. But on account of the intervention of some neighbours, no actual assault took place. On 21st October, 1979, however, the wifes father, Krishnarao Kharat, himself came to the matrimonial home and started abusing the husband and thereafter took his daughter Kalindi away. It is in these facts that the husband had alleged that the wife had deserted him on 21st October ,1979. There is reference to the alleged attempts to try to bring about a reconciliation, which attempts have failed. The husband has thereafter alleged that the wife came to his office at Churchgate, Bombay on 30th November, 1981 and 8th February 1982 and created a scene there. The husband had lodged N. C. complaints in this behalf, which complaints have been produced on record. In these facts, the husband has alleged that the wife has deserted him and further that the wife has treated him with cruelty within the meaning of the provisions of section 27 (1) (b) and section 27 (1) (d) respectively.