SEBASTEAO VALENTE FERNANDES Vs. PAULINA ROMANA FERNANDES

JUDGEMENT

(1.) The appellant has filed a suit for divorce against the respondent on the grounds of adultery and that she had abandoned the conjugal domicile for a period of more than three years. This suit was resiste by the respondent inter alia, on the ground that she had not abandoned the conjugal domicile, but she had been forced out of these house by him. She also denied the charge of adultery. By his judgment dated 7th March 1986, the learned Civil Judge, Senior Division, Quepem, decreed the said suit on the ground of the abandonment of the conjugal domicile for over three years. Being aggrieved, the respondent approached the District Court, South Goa, in appeal. She suceeded as by the impugned judgment dated 30th September 1986, the learned Additional District Judge, Margao, set aside the judgment of the trial Court and accordingly, dismissed the suit for divorce. It is against this judgment that the present second appeal was filed. The same appeal was admitted on the following substantial questions of law:-

(2.) Mr. M.S. Usgaokar, the learned counsel appearing for the appellant at the outset stated that though the learned Additional District Judge had held the view that adultery had not been proved, and though this finding is not above criticism, the appellant does not challenge it because this being a second appeal, it will not be open to him to challenge the said finding which records one of the possible views. He therefore restricted his attack only to the ground of abandonment. The learned counsel urged that it is an admitted position that the respondent has left the conjugal domicile on her own and has been living for more than 16 years separate from the appellant. The question was whether she left it voluntarily or whether she was forced out of the conjugal domicile by the appellant. According to Mr. Usgaonkar, the question of proving that the respondent was not forced out of the house is negative fact which, naturally, had to be proved by the respondent. He further submitted that Article 38 of the Decree No.1 of 1910 (Law of Marriage) provides, inter alia, that the spouses should live together. Article 40 further provides that the wife should reside with the husband unless the latter, without her concurrence, desires to reside in the colonies or in a foreign country. The law therefore, casts a duty on the wife to reside with her husband and if she leaves the conjugal domicile, it is for her to prove that she was compelled to leave it by her husband. This evidence has not been adduced by the respondent and therefore, the trial Court rightly recorded such finding in its judgment. The learned Additional District Judge was wrong in reversing this finding only on the basis that the evidence adduced by the parties was not sufficient to give a finding as to whether the respondent had left the house voluntarily or had been forced out therefrom. This being the position, it is the case of Mr. Usgaokar that the interference by the First Appellate Court with the judgment of the trial Court was unjustified and therefore, the impugned judgment is liable to be set aside.

(3.) Mr. Reis, the learned counsel appearing for the respondent, joined issue and he submitted that abandonment means willful desertion with a reasonable cause. The appellant approached the Court for divorce, inter alia, on the ground that the respondent had abandoned the canjugal domicile. He failed to prove his case and therefore, he cannot turn the tables and come out with a case that it was for the respondent to prove that she had a reasonable cause to leave the house. In any event, the learned counsel urged, that the question of abandonment is a question of fact and the burden of proving it was lying entirely on the appellant. In this connection reliance was placed by him on Lachman Utamchand Kirpalani v. Meena alias Mota, 1964 AIR(SC) 40