PRAGATI PRAKASH SAWANT Vs. PRAKASH SAWANT

JUDGEMENT

(1.) THIS appeal is filed by the unsuccessful wife against the Judgment and Order passed by the Civil Judge, Sr. Division at Mapusa in Matrimonial Petition No. 54/99/b decreeing the divorce in favour of the respondent husband under Articles 4 (4) and 4 (5) of the Law of Divorce.

(2.) THE respondent petitioner filed suit for annulment of marriage and alternatively for divorce under various counts, including under Articles 4 (1), 4 (4) and 4 (5) of the Law of Divorce.

(3.) THE facts, in brief, involved in the dispute are thus: the parties were married on 27/3/91 at Duler Mapusa, and, their marriage was registered at Entry No. 201. Certificate of marriage is dated 7. 5. 1991 issued under no. 201. After some time of marriage, the petitioner husband realized that the wife was not conceiving and, therefore, medical assistance was sought for. After examination of both the parties, the petitioner was found normal. However, wife examination revealed that she had undergone termination of pregnancy while she was spinster and during the course of termination, her fallopian tunes were closed and she was not in a position to conceive. This caused lot of mental tortures to the petitioner. The petitioner also found the respondent to be of easy virtue and was having extra marital affairs. In April, 1994, the respondent left the matrimonial home and the petitioner had to file a complaint with the Superintendent of Police and with whose intervention, the respondent was sent to matrimonial home. Assistance of voluntary action bureau was also sought to reconcile the dispute. However, the respondent filed false complaint against the petitioner and in laws. However, they were acquitted after trial in Criminal Case No. 199/95/b. Thereafter, the respondent filed maintenance application No. 26/95 and obtained maintenance order from the lower Court. It is the case sought to be made out by the petitioner that the respondent never used to cook and also was living in adultery. She was not permitting the petitioner to have sex with her and had abandoned the matrimonial home and had caused mental cruelty to him. Hence, the petition for divorce came to be filed. The respondent contested the matrimonial petition and challenged the allegations submitting that she was not having any extramarital relationship with anybody and the allegations made by the petitioners were totally false. In fact, as alleged by the respondent, her mother in law never permitted her to cook and in fact, the petitioner and his mother assaulted her and, therefore, she had to file complaint on 15. 6. 94 at Mapusa Police Station. However, the matter was settled with the intervention of the Superintendent of Police. She alleged that since she was not keeping good health, she asked the petitioner to take her to a doctor. But the petitioner did not pay any attention and assaulted her and, therefore, she had to stay with her mother. After she recovered, the petitioner did not take her in the matrimonial home and, therefore, she filed criminal complaint on 10. 11. 94. According to her, she was forced to leave her matrimonial home and, therefore, there was no question of abandoning her matrimonial home at any time. On such and other grounds, the petition was sought to be dismissed. The learned trial Judge, recorded the evidence of both the parties and on the basis of the evidence, came to the conclusion that the petitioner failed to prove his allegation regarding adultery as contemplated under Article 4 (1) of the Law of Divorce. However, it was held that the petitioner succeeded in establishing that he was entitled to seek divorce by virtue of Articles 4 (4) and 4 (5) of the Law of Divorce, thereby it was held that the respondent wife was guilty of causing mental cruelty to the petitioner husband and had abandoned the conjugal domicile for more than three years and, hence, the decree for divorce on these grounds came to be passed. Hence, the appeal.