NAZARIO ALFREDE MAGALHAES Vs. MARIA FATIMA VARELA

JUDGEMENT

(1.) The parties are Goan. The appellant is the husband. The respondent is the wife. Their marriage was solemnized on 22-2-1977. Out of the wedlock the son was horn on 21-11-1978 and the daughter was born on 24-4-1981. Both the children were born in Goa.

(2.) The husband on 10-3-1993 filed the suit against the wife and prayed for decree of divorce and dissolution of marriage on the ground of abandonment of conjugal domicile. The husband averred in the plaint that he being a seaman has to be on board ship for 9 months a year and that he gets leave for three months and during that time he stays in Goa. The husband alleged that the wife was unwilling to reside with him at the matrimonial home right from the inception of their marriage. She would complain that his house was too small to accommodate all the family members. The wife would say that she did not like to reside with the family members of the husband. The wife wanted the husband to stay with her parents who were living in the same village, viz. St. Estevam. Whenever the husband came on leave, the wife would pick up quarrels with him on flimsy grounds. During his absence, the wife would stay at her parents's place for months together. Despite persuasion by the husband, the behaviour of the wife did not improve. The wife last resided with him at the matrimonial home during his visit in the month ot November, 1980, after which the wife completely abandoned the matrimonial home with an intention to bring an end to the matrimonial relationship. In the year 1981, he constructed a new house which was hardly 50 metres away from the wife's parents but despite the repeated request by him, the wife refused to join him. The husband, thus, set up the case for dissolution of marriage and divorce under clause (5) of Article 4 of the Law of Divorce.

(3.) The wife contested the suit; filed written statement and traversed the allegations made in the plaint. In the written statement she set up the case that after few days of marriage, the husband left on board ship and returned only in the month of December, 1978. During that time she was ill-treated by the husband as well as by his mother. The husband again went on board ship in the month of May, 1979 and he did not want her to stay in his house. He came to her parents house and told that he was going to take an appointment with the doctor to examine the child and that he would come back to take them. He left but did not return. Thereafter, he came back in the month of April, 1980. She went to the matrimonial home on the date of his arrival and remained there until the month of november, 1980. The husband this time also did not allow her to stay in his house and told her that he did not want her to stay in the house. She gave birth to a girl child in the month of april, 1981. The husband then came back in the month of September, 1981. However, he did not visit her nor did he see the girl child. The husband created an impression that if she came to his house, he would kill her. One of the sisters of the husband, out of compassion came to her house and tried to convince her to visit the matrimonial home. At that time she decided go to the husband's house. However, the husband came to know about the intervention of his sister and he immediately wrote to her that he never requested anyone to plea with her in order to come and live with him. The husband returned in the month of december, 1982 and thereafter he started residing in his new house. The husband did not take her or the children to the new house. On the contrary, he made her feel that he did not want them and that he would kill them if they came to his house. The wife averred that the husband apparently was not willing to allow her or her children to reside in the conjugal domicile because of his illicit relations with one married lady by name conceicao Femandes. The wife alleged that the suit has been filed by the husband with the sole intention to get rid of her in view of his illicit relation with the said lady.