MEENA DESHPANDE Vs. PRAKASH SHRINIWAS DESHPANDE

JUDGEMENT

(1.) This second appeal by the wife arises out of the marriage proceedings which were initiated by the respondent praying for a decree if nullity or in the alternative for a divorce on the grounds that the appellant-wife was suffering from mental disorder and a fraud was practised on the respondent-husband by suppressing the facts about the mental state of the wife. To seek a decree for divorce, the grounds of cruelty and desertion were asserted. In the proceedings, the present appellant-wife admittedly filed an application under Section 24 of the Hindu Marriage Act (hereinafter called "the Act") as per Ex. 11 praying for interim maintenance at Rs. 350/- per month and a sum of Rs. 1,000/- for the expenses of the proceedings. This application was filed on January 22, 1980 which was supported by an affidavit of the wife (Ex. 12). Thereafter, before the trial Court it does not appear that any written statement was filed. Five applications were made for seeking time and when the matter came before the trial Court on April 14, 1980, again a similar application was moved, but that application was rejected. Acting upon the affidavit filed by the respondent-husband, which is at Ex. 23, in support of the allegations in the petition, the trial Court made a somewhat curious decree which doe all purposes is ex parte that the marriage was null and void and it stood dissolved. Furthermore, it was directed that a decree for divorce be drawn accordingly. In the appeal taken up by the wife, the First Appeal Court was of the view that the decree of nullity could not be made in view of the bar of limitation. However, the decree for divorce could be made ex parte because no written statement was filed. Taking that view, the appeal was dismissed. This decree for divorce as is affirmed by the First Appeal Court is under challenge in the present second appeal. It does appear that during the course of the hearing of the appeal on behalf of the wife written statement was sought to be tendered, but the same was not accepted.

(2.) In the entire proceedings excepting para 5 of the trial Court's judgment it does not appear that there was any consideration bestowed upon the entitlement of such wife to seek maintenance pendente lite and the expenses of the proceedings for which proper application was filed supported by the affidavit as available at Exs. 11 and 12. Without deciding such an application, it is indeed difficult to permit the passing of such exparte judgment only because the written statement is not filed, particularly when the allegations on the basis of which relief of nullity and divorce are sought ate serious enough and, before they are accepted, required sufficient and adequate proof. In such matters, looking to the policy of law, it must be observed that the proceedings under Section 24 of the Act have an important bearing with regard to the rights of the defending spouse. Not only the provisions of Section 24 of the Act permit grant of maintenance pendente lite, but also it permits the Court to make an order with regard to necessary expenses of the proceedings. In a given case without provision for the necessary expenses of the proceedings, it would be impracticable to insist upon the defending spouse even to file a written statement. The trial Court, which was bound to decide the application with regard to the maintenance and the expenses. There is, thus, obvious failure to follow the provisions of Section 24 of the Act, and that should be enough to set aside the judgment under appeal and remit the matter back to the trial Court directing it to consider the application filed at Ex. 11 supported by Ex. 12 and then to proceed with the enquiry in the petition according to law.

(3.) There is, however, another aspect which must be mentioned and that relates to the adequacy of the proof in such matters. Decrees of the kind sought by the spouses cannot be made as of course. The same should be made only on the basis of adequate material placed by the party seeking a decree. This is more so when the charges are serious enough like that of the mental disorder of the spouse and of fraud. it is obvious that by mere statements in an affidavit, which may in a given case deserve acceptance, the factum of the mental disorder of the given person cannot be found out. The material like the one having reference to medical treatment, evidence of the other persons who had ordinarily occasions to be in the company of such person, which should be available, should ordinarily be insisted upon. It is significant that though in the present case the plea was that of mental disorder, no other material in that regard was either tendered or insisted upon. An affidavit of the husband is nothing but the recitals of the allegations contained in the petition. Such assertions can hardly be treated as adequate.