KISHORILAL GOVINDRAM BIHANI Vs. DWARKABAI KISHORILAL BIHANI

JUDGEMENT

(1.) THIS appeal involves a rather intricate angle of the law relating to desertion. The proceedings, now in the second round, involve a review of the case that was tried by the Family Court at Pune. Under the law, an appeal lies to the Division Bench of the High Court where the parties are represented by Counsel and are subject to being circumscribed to the pleadings and the record of the Trial Court. With recurring regularity, we are faced with a situation of both learned Counsel making a strong grievance that the case has either gone by default or that it has been seriously jeopardised because the parties were deprived of legal assistance before the Family Court. A remand at this stage would be inhuman to the parties and it is, therefore, essential that corrective steps be taken forthwith. First, the facts.

(2.) THE appellant before us, the original petitioner before the Family Court at Pune in petition No. A-812 of 1989, has presented this appeal which is directed against the judgment and order of that Court dated 20-1-1990. The appellant-husband had originally filed a matrimonial petition on 13-2-1989 praying for restitution of conjugal rights. His grievance was that the respondent-wife, whom he had married on 6-7-1973, had resided with him till 26-1-1975 on which date she returned to her parents home at Village Sonai. Thereafter, followed a long gap of separation, which ultimately came to an and on 16-12-1984 when the wife ostensibly at the behest of the petitioner and other persons came back to reside with the appellant. This cohabitation was for a short period because the respondent again left the matrimonial home on 27-2-1985 and it is common ground that there was no resumption of cohabitation thereafter. The appellant had originally moved the Family Court for a relief of restitution of conjugal rights obviously with the intention of restoring the marriage to its original status. The couple had two children, both sons, the first of them born on 5-3-1975 and the second one born on 15-10-1985. The appellant had contended that in spite of his best efforts and for no fault of his that the wife had continued to reside separately from him and he was, therefore, desirous that the Court should grant him relief whereby his conjugal rights could be restored. Two months thereafter, on 25-5-1989 to be precise, the appellant presented an application to the Court for amendment of the original petition, which came to be granted. By this amendment, the appellant prayed for the alternate relief of divorce from the respondent on the ground that she had deserted him for a continuous period of over two years.

(3.) WE must at this stage dispose of an objection that was sought to be canvassed before us by learned Counsel Shri Shah, appearing on behalf of the respondent-wife. He has pointed out to us that the petition in its amended form retains the original prayer for a decree of restitution of conjugal rights and at the same time incorporates an alternate plea for divorce on the ground of desertion. Mr. Shah points out that on these pleadings, the appellant before us is totally precluded from praying for a decree of divorce. He contends that the prayers are mutually exclusive and if the appellant desires restitution of conjugal rights first and expresses unqualified willingness to live with the respondent, then the question of granting any alternate relief cannot be pleaded in appeal, implying thereby a bar of estoppel. Mr. Anturkar, learned Counsel appearing on behalf of the appellant, has pointed out to us, and to our mind with some justification, that the original prayer made to the trial Court is an indication of the utmost bona fides on the part of the appellant, who has all through the pendency of the marriage displayed his desire to continue with it. Once he realised when the matter had come to the Court from the attitude of the respondent that the prayer for restitution of conjugal rights in the circumstances in which he was placed is a worthless one and, therefore, he was left with no other motion except to pray for the relief of divorce on the ground of desertion. We need to take serious note of the fact, as pointed out to us by both learned Counsel in the course of the hearing, that by virtue of the misreading of the provisions in the Family Courts Act and these Courts all but barring appearance of Advocates before that forum completely, that inconsistencies of the present nature are inevitable. The parties before us are a simple middle-class couple. The husband is a clerk working with the S. S. C. Board of the Pune and the respondent-wife have very little education. The record of this case is quite eloquent in so far as it indicates the handicaps under which the litigants are pleaded when they are deprived of the services of legal assistance before Family Courts. It is this factor alone that has persuaded us to take a charitable view of the record that is otherwise an shambles. We, therefore, do not attach any significance to the technicalities with regard to the inconsistencies or otherwise in the pleadings, but we would prefer to her the appeal by delving into the substance of the real issue that falls for determination. Suffice it to say that the prayer for dissolution of the marriage, whether alternative or otherwise, did exist in the petition as presented and the short question before us is, therefore, as to whether on the material placed before the trial Court, the appellant before us was entitled to any relief.