SUREN CHANDRAKANT. SHAH Vs. RITA SUREN SHAH

JUDGEMENT

(1.) This appeal is preferred by the original petitioner/husband against the judgment dated April 30, 1982 passed by the learned Judge, City Civil Court, Bombay, dismissing the petition for divorce. The husband sought divorce on two grounds-desertion and mental cruelty and on both the grounds the trial Judge recorded finding against the petitioner/husband. The facts giving rise to the filing of this appeal are as follows.

(2.) On April 24, 1974 the petitioner was engaged to be married to the respondent. The respondent was of a comparatively young age at the time of marriage. The marriage was solemnised according to Hindu Vedic Rites on June 16, 1974, and the parties set up their matrimonial home at Sterling Apartments, where the petitioner is residing with his parents, elder brother Arun, his wife and their children. The flit in Sterling Apartments is a very luxurious flat with air-conditioners fitted. On solemnisation of the marriage, the petitioner went on honeymoon to Kashmir and Nainital and curiously the young couple was accompanied by the petitioner's sister Manjira. On return from the honeymoon, the respondent went to her parents place, which is at a stone throw from the residence of the petitioner. The respondent came back to the house of the petitioner after a period of about one month, and thereafter went back to her parents on Feb. 15, 1975 for delivery of her first child. The first child was a female child born on May 24, 1975 and named of Rakhee. The respondent returned back to the house of the petitioner on Aug. 25, 1975. The second child, Shyam was born on Aug. 13, 1976 While the respondent was in the house of the petitioner along with her first child Rakhee and second son Shyam, who, was hardly about a month old, an incident occurred late at night on Sept. 11, 1976, where it is claimed by the respondent that she was threat ended by her mother-in-law in the presence of all the family members. The respondent along with her two children left the house of the petitioner early in the morning of Sept. 12, 1976 and went to her parents place. The petitioner along with his another went to the house of the parents of the respondent, but the respondent declined to go back. Thereafter certain correspondence took place between the parties, but neither the parties nor their parents had any wisdom to patch up the dispute and bring about reconciliation. In deed, neither the husband nor the wife had any complaint against each other, but the whole dispute seems to have started because of the attitude adopted by the mother-in-law towards the respondent.

(3.) On July 26, 1977 the petitioner presented M. J. Petition No. 550 of 1977 in the Bombay City Civil Court seeking the relief of divorce on the ground that his wife had deserted him and also treated him with cruelty. The two grounds raised by the petitioner were under Sec. 13 (1) (ia) and (ib) of the Hindu Marriage Act, 1955. The ground of desertion was obviously not maintainable on the date of presentation of the petition as Sec. 13 (1) (ib) demands that a marriage can be dissolved by a decree of divorce provided the wife had deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The period of two years had not lapsed prior to the date of presentation of the petition as the petitioner claimed that his wife had deserted him on Sept. 12, 1976, while the petition was filed on July 26, 1970. Realising this difficulty, the petitioner sought amendment of the petition on Jan. 25, 1980 claiming that till the date of seeking the amendment the wife had not returned back to the matrimonial home. The amendment was granted and the wife was permitted to amend the written statement. Parties also joined battle in respect of custody of the children and the quantum of alimony to be paid to the wife and maintenance to the children. The trial Judge framed the requisite issues and recorded evidence, both oral and documentary. The petitioner entered the witness-box in support of his case and examined Dr. Soochak to establish that he mentally suffered at the hands of the respondent. The respondent on her part examined herself and her father and led evidence of two employees of the banks to establish the financial condition of the husband. The trial Judge, after carefully perusing the evidence led by the parties, delivered his judgment on April 30, 1982 holding that the petitioner had miserably failed to establish both the grounds for grant of decree of divorce. The trial Judge granted custody of both the children to the respondent-mother and directed the petitioner to pay monthly alimony at the rate of Rs. 1,000.00 to the wife and Rs. 500.00 per month to each child and made it payable from April 1, 1982. The trial Judge recorded in the judgment several efforts made during the pendency of the petition to bring reapproaehment between the parties. The judgment reflects that the trial Judge was at pains to point out that in spite of his several efforts the parties refused to show any sense and obviously the petitioner is in the wrong box because he had no complaint whatsoever against his wife and in spite of realisation that the wife had left the house because of the proverbial ill-treatment by the mother-in-law has refused to find out the solution. The judgment of the trial Judge is under challenge in this appeal.