DINA DINSHAW MERCHANT Vs. DINSHAW ARDESHIR MERCHANT

JUDGEMENT

(1.) THIS is the defendant's appeal against the decree for divorce made against her on January 20, 1968, in Parsi Matrimonial Suit No. 33 of 1963. The suit was tried by Mr. Justice Kanta-wala with the assistance of Delegates under the Parsi Marriage and Divorce Act, 1936. The Delegates found that the defendant was guilty of constructive desertion of the plaintiff without lawful cause and against his wishes for a period of over three years. The learned Judge accordingly passed the above decree. In view of the decree, he dismissed the counterclaim made by the defendant for judicial separation. In view of the decree for divorce, he also found that there was no question of considering the alternative relief for judicial separation prayed for by the plaintiff. The question of the custody of children and permanent alimony was directed to stand over. The learned trudge ultimately, upon a subsequent hear-ing, ordered that the costs to defend the suit be paid by the plaintiff.

(2.) THE plaintiffs case may be shortly summarised as follows:-On July 1,1945, the parties were married according to the rites and ceremonies of the Parsee Zorostrian religion at Poona. The defendant was then a divorcee. There ate four issues of the marriage; the eldest and the two youngest being daughters and the second child being a son named Hosang. The four children were, at the date of the suit, of the respective ages of 16, 14, 12 and 10 years. The plaintiff's married life with the defendant had been one of continuous misery and unhappiness and constant violent quarrels. The defendant was a sadist who indulged in perversity and cruelty. She loved to provoke the plaintiff to breaking point and to violence by constantly nagging, abusing, assaulting and humiliating the plaintiff on various pretexts, and on various occasions, without even the least care for the presence of the children, servants, friends and outsiders. Abuses and insults were hurled on the plaintiff by the defendant almost every day throughout their married life until the plaintiff by reason of the conduct of the defendant, was compelled to live apart from the defendant and cease to cohabit with the defendant as husband and wife. The family had to change residences because of the temperament of the defendant The parties resided from June 1, 1954, in a bungalow at 26, Pali Hill at Bandra. As a result of the defendant's above conduct, on December 14, 1955, the plaintiff filed Suit No. 41 of 1955 against the defendant for judicial separation. The acts of cruelty which transpired upto that date were all mentioned in the plaint in that suit The defendant filed a counterclaim. On September 24, 1956, the suit and the counter-claim were allowed to be dismissed by consent The plaintiff had agreed to the dismissal of the suit at the intervention of friends and thereafter tried his very best to win over the defendant and make it possible for her to have and keep a happy home. Within a short time the defendant exhibited such conduct as made it clear that she had no intention to have a happy married life with the plaintiff. The defendant gave full vent to her wild temperament and committed further acts of assault and cruelty against the plaintiff. The plaintiff failed to bring any sense to the defendant and did not have a happy or peaceful family life. Between September 24, 1956 and October 1959, the plaintiff's married life was completely shattered by innumerable acts of gross cruelty and callousness on the part of the defendant. As a result of the defendant's conduct the plaintiff was compelled to live separately from the defendant and withdrew himself from the marital relations with the defendant. The plaintiff then felt that he could no longer stand the defendant's cruelty and even felt unsafe to reside in the same house with the defendant. The plaintiff was, in the aforesaid circumstances, compelled to leave his own house and stay with friends. In his Attorneys' letter dated October 20, 1959, the plaintiff recorded the facts of the incident which had occurred that morning. The facts disclosed were about the merciless assault by the-defendant on the plaintiff's head with a stone in her hand. A complaint had been lodged by the plaintiff with the Bandra Police Station. The plaintiff was treated at a hospital. When the plaintiff went to the house to fetch his clothes, a further scene was created by the defendant. She hurled a big stone at the plaintiff. She had attempted to prevent the plaintiff from driving away in his car and attempted to break the glasses (i. e. spectacles) which the plaintiff was wearing. It has recorded by this letter finally that the acts of the defendant had compelled the plaintiff to leave the matrimonial home. The plaintiff filed suit No. 45 of 1959 against the defendant for judicial separation on the ground of gross cruelty. The defendant filed a counterclaim for judicial separation. The suit was adjourned from session to session and reached hearing in April 1961. Prior to that date, the defendant had tried to persuade and/or coerce the plaintiff to withdraw the suit. The plaintiff was suffering, a little before April 1961 from Typhoid and was in bed for a long time, and was prevailed upon for the sake of his four children--who were then minors, to withdraw the second suit The plaintiff was then assured by the defendant that she would not further harass, annoy or molest the plaintiff in any manner and "would not interfere with the plaintiff living separately from the defendant," The suit and the counter-claim were thus withdrawn in April 1961 by consent of the parties. In this connection in para-graph 10 of the plaint the plaintiff has stated that though by consenting to the withdrawal of the said suits he had tacitly condoned the various acts of cruelty, the same had become revived by reason of the facts and circumstances as set out in the subsequent paragraphs. The defendant had been guilty of further matrimonial offences and her conduct had revived hen previous acts of matrimonial offences. Though the suit was withdrawn, the plains tiff had been since October 1959, compel-led to withdraw and had withdrawn himself from matrimonial relations with the defendant and had lived apart against his own wishes and only preserved his marriage for the sake of his children. The plaintiff' had continued to reside apart from the defendant in view of her acta of gross cruelty and callous conduct. After: October 1959 having regard to the above conduct of the defendant, the plaintiff had except for short visits, resided separate from the defendant with other friends and outsiders. During the short visits that the plaintiff had at the residence at Pali Hill, the defendant did not lose any opportunity to further annoy, harass, humiliate and violently quarrel with the plaintiff. She had such quarrels with the plaintiff even at outside places. The defendant aa above created situations which would lead to brawls and figlits with the plaintiff and provoked him by abuses, insults and actions to such an extent that the plaintiff was unable to keep control over himself, After Suit No. 45 of 1959 was withdrawn, the defendant made it a point to invent false accusations against the plaintiff and not only provoked quarrels with him at different times and places, but after February 1962 she continuously lodged complaints against the plaintiff and at the police station. False and frivolous complaints were thus lodged about 9 or 10 times within one week of March 1962. According to the plaintiff, these accusations and complaints were made because the plaintiff had withdrawn himself from the marital relations with the defendant. On the basis of the above allegations of facts the plaintiff, in paragraph 17 of the plaint. pleaded constructive desertion by the defendant in the following manner:--

(3.) THE defendant by her written statement, and counterclaim generally denied the above allegation of cruelty made in the plaint. Her case was that it was the plaintiff's conduct that had made the defendant's married life with the plaintiff one of continuous misery, torture and unhappiness. The plaintiff had behaved in the most cruel, callous, sadistic and brutal manner towards the defendant in sub-paragraphs (a) to (n) of paragraph 4 of her written statement she gave various Incidents of the plaintiff's conduct, as acts of cruelty upto the date of the first suit. In sub-paragraphs (a) to (i) of paragraph 6 of the written 'statement she related further incidents as acts of gross cruelty of the plaintiff. She denied having been guilty of the conduct as a result whereof the plaintiff could not live with her. She denied that it was unsafe for the plaintiff to reside in the same house with her. She denied that in October 1959 the plaintiff withdrew himself from marital relations with her. According to her, after the summons in Suit No. 45 of 1959 was served on her, the plaintiff came back to the marital home and resumed cohabitation with the defendant. In that connection in paragraph 8 she mentioned that on November 4, 1959, the plaintiff had returned to the marital home. On Nbvem-ber 7, 1959 upon his return from Ahmeda-bad the plaintiff had gone to the Pali Hill residence and informed the defendant that "he had returned home and was going to stay with the defendant. " That night the plaintiff had marital relations with the defendant'. She also alleged that the parties had marital relations between November 9 and December 10, 1959 twice. She also gave similar incidents of marital relations between the parties in paragraphs 9 and 10 and the subsequent paragrapha She recited the various acts of cruelty by the plaintiff in March 1960 in paragraphs 11 and 12 of the written statement. She alleged that she was coerced to withdraw her counter-claim in Suit No. 45 of 1959 by reason of certain conduct of the plaintiff. In connection with the withdrawal of the suit and the counter-claim in April 1061 she stated that the plaintiff has approached her for a reconciliation, pleading for mercy on the ground that he was about to lose his job in the Tata Mills where he was then employed. The defendant herself was entreated and advised by well-wishers not to proceed with the counterclaim as the plaintiff was willing to have the suit dismissed. This, according to her, was the reason why the suit and the counter-claim were, by consent of the parties dismissed in April 1961. She stated that she was not aware and did not admit that the plaintiff had then suffered from typhoid and had been in bed for a long time as alleged by him. She denied having given any assurances to the plaintiff that she would. not interfere with the plaintiff living separately from her. She stated that, on the contrary, the plaintiff assured her that he would live peacefully with her and that he would not assault and abuse her. The plaintiff assured her that he would give a separate car for her use and would find a suitable accommodation in the City limits. She denied that from October 1959 the plaintiff was compelled to withdraw or had withdrawn himself from marital relations with the defendant or had lived apart against his wishes or otherwise, or only preserved the marriage for the sake of the children. Her case was that the plaintiff continued to live and cohabit with her till March 13, 1962. In sub-paragraphs (1) to (u) of paragraph 19 of the written statement she recites various incidents being the -acts of cruelty by the plaintiff during the period January 1962 to July 1962. In paragraph 21 she repeated her denial that the plaintiff withdrew himself from the marital relations with her. She stated that cohabitation between the plaintiff and herself continued upto March 13, 1962. She further denied all the statements in the plaint relating to her conduct, or that the same had made it impossible for the plaintiff to cohabit with her or have any marital relations with her. She denied having been guilty of gross cruelty or callous actions or that for the alleged reasons the plaintiff was compelled to stay separately from her, or to continue to stay separately or withdrew himself from the marital relations with her. She denied that she was guilty of constructive desertion.