ISHWARLAL SARABHAI PARIKH Vs. PRABHAWATI ISHWARLAL PARIKH

JUDGEMENT

(1.) This judgment disposes of L.P.A. Nos. 14 and 15 of 1983. Ishwarlal Parikh is the common appellant. Prabha who is the first respondent in both appeals is his wife. The husband has filed two petitions against her under the Hindu Marriage Act for dissolution of their marriage on the ground of adultery and cruelty. The first one was filed in January 1973, with one Ram Ahuja as the co-respondent. The second petition was filed in July 1976. Here are two co-respondents, Joshi and Malkan. The two petitions were tried separately by two Judges of the Bombay city Civil Court, Shri R.V. Joshi and the Late Shri Makhijani. Both came to be dismissed. The learned Single Judge (Mody, J.) has dismissed the two appeals preferred by the petitioner. Now he has preferred these two Letters Patent Appeals before this Court.

(2.) It is not in dispute that the marriage of the appellant and the first Respondent (hereafter generally referred to as "the Respondent") was solemnised according to Hindu Rites on 14th February, 1943 at Bhavnagar. They are at present about 73 years and 65 years old respectively. Ever since the marriage, they have been residing at Bombay. They have three sons and one daughter. The eldest issue-Kiran a son is now about 44 years old. The youngest son Yatin is about 30. The appellant is a double Graduate in Arts and Law and a Sales Tax practitioner by profession. There were no problems till 1964 or so. The appellants case is that at about that time he noticed coldness and indifference developing in respondents treatment to him. This conduct aroused his suspicion about her fidelity. In 1969 he arranged a watch on her movement with the help of certain private detectives. Although evidence was adduced in the first petition on as many as five incidents, ultimately the trial Court found that the appellant had succeeded in establishing just one incident of 30th November, 1971 (that too, partly). In the other petition the trial Court held that the appellant had met co-respondent Joshi on four occasions and respondent Malkan on two occasions. It was, however, held in both matters that the facts proved were not sufficient to establish the plea of adultery. So far as the question of cruelty was concerned, the trial Judges held that according to the law then obtaining, it was necessary for the appellants to establish that the conduct of the wife was of such a character as to cause danger to his life, limb or health-bodily or mental or to give rise to a reasonable apprehension of such a danger. As this particular ingredient remained unproved, the trial Judges negatived the plea of cruelty as well. Both petitions came to be dismissed and the learned Single Judge (Mody, J.) confirmed these decisions in the two First Appeals preferred by the appellant.

(3.) At this stage, it will be of advantage to take not of certain legislative changes brought about in the Hindu Marriage Act by Amending Act of 1976. The trial Court delivered its judgments in the first petition in February, 1979 and in the second in 1980. During the pendency of the first petition itself, the Amending Act came into force with retrospective effect. Before the amendment, cruelty was recognised only as a ground for judicial separation under section 10(1)(b) and not as a ground for dissolution of marriage. There was a waiting period of 2 years after the decree of judicial separation was passed. Only thereafter could the aggrieved party come to the Court for getting a divorce. The Amending Act recognised cruelty as a ground for divorce.