HORMUSJI M KALAPESI Vs. DINBAI H KALAPESI

JUDGEMENT

(1.) This is an appeal by the husband against his wife and it has been preferred against the order passed by Coyajee J. directing him to pay alimony to his wife at the rate of Rs. 80 per month. The learned Judge has also directed mat this amount should be paid from the date when the petition for alimony was presented, that is to say, front 18-9-1950. As to the costs, the learned Judge has ordered that the husband should pay the costs and the wife's costs have been fixed at a lump sum of Rs. 2,100.

(2.) In the present appeal, Mr. Javeri contends that the learned Judge was in error in holding that the husband was liable to pay alimony to the wife and that he was also in error in fixing the amount at Rs. 80 and in directing that the said amount should be paid from the date of the petition. The order of costs has also been challenged by Mr. Javeri.

(3.) This unfortunate litigation has had a very chequered career. Indeed the marriage between the parties has turned out to be a complete failure. The parties were married on 15-8-1945. The wife belonged to Nasik and the husband to Bombay. The husband is a doctor and is employed by the Tatas. It appears to have been a very short-lived period of married life between the two parties and it is fairly clear that both the parties found it difficult to adjust themselves to each other. The husband is disposed to take care of his brothers and his sisters and he expected that his wife should join him in his household which consisted of the said relatives. The wife was unable, to appreciate the husband's affection for his relatives and that in substance is the genesis of the bickerings and disputes between the parties. Though the litigation between the parties has gone through a chequered career, it must be said in fairness to both the parties that no allegation has been made by either of them against the other in respect of character. The predicament in which the husband found himself is not unusual. He felt that he owed some obligation to his relatives and he was apparently trying to adjust his obligations to his relatives with those to his wife, while the wife apparently felt that she would not be able to live her full personal life unless the husband and she alone built up a world of their own. In such circumstances, it is sometimes futile to try to apportion blame between the parties. Even so, the unfortunate fact stared at both the parties to the present dispute that they were not able to pull on together for any length of time. It is unnecessary to set out the details in regard to the developments that took place in the married life of this couple. A girl was born of this marriage in August 1946. But even this happy event made no difference in the relationship between the husband and wife. The wife came and stayed with the husband for some time; then she went back to her parents ostensibly for the purpose of attending 'a navjot' ceremony in her family. She came back again, but that was with a view to return to her parents once again and she did leave the husband's protection sometime in May 1946 irrevocably. On 21-6-1949, the wife sued the husband for divorce on the ground of desertion. The husband counter-claimed and prayed for divorce on the ground of his desertion by the wife. It appears that the hearing of this suit and counter-claim commenced before Bbagwati J. on 10-10-1949. The wife gave evidence and she examined nine witnesses. Her case was closed on 13-10-1949. On October 14, the husband stepped into the box and gave evidence-in-chief. Then the learned counsel for the wife told Bhagwati J. that he did not propose to cross-examine the husband. Bhagwati J. then ruled that the failure of the wife to cross-examine the husband necessarily meant that the statements made by the husband on oath in the witness-box were not disputed by the wife and on this ruling the matter came to be decided, The delegates were asked to answer the issues which had been framed for their decision and in the light of the answers given by the delegates, the learned Judge dismissed the wife's suit and gave a decree to the husband in terms of prayer (a) on the counter-claim. Even so, the learned Judge felt that, the proper order of costs would be that the defendant should pay the plaintiff's costs of the suit as well as the counter claim. Thereafter the matter was taken before Bhagwati J. on 7-12-1949, for speaking to the minutes and Mr. Khambatta for the wife moved the learned Judge that he Should make an order reserving liberty to the wife to apply for permanent alimony and custody of the child. The learned Judge held that, since the suit preferred by the wife had been dismissed, there was no. question of reserving her claim for alimony. In regard to the question of the custody of the child, however, the learned Judge ruled that the wife could not be and was not concluded by the disposal of her suit. It was open to her to resist the defendant's prayer for custody of the child whenever she thought necessary so to do. That is where the matters stood between the parties for some time. On 19-4-1950, an application was preferred by the wife, for permanent alimony in the suit and the matter came before Bhagwati J. again. The learned Judge held that no application for alimony could lie in the suit since the suit had been dismissed. He however observed that the plaintiff could, if so advised, apply in the counter-claim. That inevitably led to the next step which was taken by the plaintiff on 18-9-1950. She applied for permanent alimony in the counter-claim and it is this petition which has given rise to the present appeal.