Judgment:
P.R. Borkar, J.
1. This is an appeal preferred by the husband - original petitioner whose petition for divorce bearing H.M.P. No. 19 of 1984 though decreed by the Civil Judge, Senior Division, Nanded, on 29.03.1986, said judgment and decree is reversed in Regular Civil Appeal No. 121 of 1986 by the II Additional District Judge, Nanded, on 16.04.1990. Present appellant sought divorce from his wife - respondent on the ground of desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955.
2. The appellant approached the Court with a case that in 1976, he married the respondent. For one year they lived happily. Thereafter, respondent started picking up quarrels on the petty matters. The appellant and his family members tried to have happy matrimonial atmosphere, but the respondent did not change her attitude. She insisted on separate residence with the appellant from the other members of the family, to which the appellant did not agree. Therefore, in the month of September, 1980, the respondent left company of the appellant and went to reside at her parental house. The appellant made several attempts personally and through his relatives to bring her back, but the respondent refused to join the company of appellant. Therefore, the appellant filed petition for divorce.
3. The respondent appeared in the petition and filed her written statement at Exh.13. She stated that for about two years she lived at the house of the appellant. The attitude of mother of the appellant changed thereafter. She started picking up quarrels over petty matters. She was instigating the appellant to abuse and beat the respondent and inspite of that she was pulling on with the matrimonial life. However, in Diwali, 1978, the respondent was driven out of the house of the appellant and sent back to her parental house. Thereafter, her father and other persons made efforts for reconciliation, but the appellant refused to accept the respondent in the house. The respondent denied that she voluntarily left house of the appellant. In the circumstances, according to her the application should be dismissed.
4. Heard Adv. Shri R.P. Dhase h/f. Adv. Shri M.V. Deshpande for the appellant and Adv. Shri D.R. Bhadekar for the respondent.
5. This appeal was admitted by order dated 21.01.1991 on ground Nos. 3 to 5 of the appeal memo, which are as follows:
(3) Application of irrelevant provisions in a peculiar or special case that such as matrimonial matter is a substantial question of law.
(4) Wrong interpretation or nonapplication of Ruling of High Court is a substantial question of law involved in this matter.
(5) The approach of the Lower Appellate Court in not granting a decree for divorce when there is no possibility of reconciliation is another substantial question of law involved in this matter.
6. The learned advocate for the appellant cited case of Kishorilal Govindram Bihani v. Dwarkabai Kishorilal Bihani 1992 Mh.L.J. 997. In para 15 & 16 following law is laid down:
15. The essential ingredients that constitute the matrimonial offence of discretion take on different complexions, human nature and its complexities being what they are. The simplest form of desertion, defined by the commentators as actual desertion involved the fact of separation (factum desrendi) and the intention to desert (animus desrendi). This contemplates a situation where the spouses have physically parted company, in the first instance, and it is demonstrated that there is an intention on the part of one of them to withdraw from the company of the other. In other words, it is not merely a fact that the parties are staying apart from each other for some time, which may be due to variety of reasons, but the fact that this is accompanied by the intention to put an end to the married state and to the marital obligations. A slight variation of this situation could arise in a case where the offending spouse and, in fact, the guilty one, is not the party who has departed but the one who stays behind, such as the familiar situation where, for reasons of severe mental and/or physical cruelty, it becomes unsafe or impossible for the wife to continue to live with her husband and she is forced to leave. Undoubtedly, in such a situation, it would not be open for the husband to contend that the wife has been guilty of desertion. There also arise the restricted category of cases where Courts have held that willful neglect of an extreme type could be construed as desertion; a typical situation being one where the spouses, though residing under the same roof, one of them has nothing to do with the other and virtually puts an end to the marital status, though neither of them have physically moved out of the premises.
16. Desertion, as pleaded or alleged, may assume one or more of the aforesaid complexions and it is, therefore, essential for the Court to examine the material on the basis of which the charge is sought to be established. It is equally necessary to guard against certain familiar situations to which there exists a total defence, for instance, where it is alleged that the wife left the matrimonial home without the husband's consent and refused to return in spite of several requests. It would be a valid defence if the Court is satisfied that the grounds which have forced the wife to live separately are genuine and cogent. It is equally well settled law that where one spouse has left without any valid justification that the law does not insist on the other spouse making any special or undue efforts to bring the deserting spouse back. It is true that by making such efforts, the innocent party would establish its bona fides, but merely because no such efforts were made, it would be incorrect to presume that there is a acquiescence of the act of desertion.
7. The learned advocate for the appellant also cited case of Prabhakar Govindrao Bokade v. Mangala Prabhakar Bokade 1992 Mh.L.J. 1098. Same principles of law regarding desertion are laid down. It is also observed that there is no exhaustive definition of the term 'desertion' and each case has to be considered in its own facts and circumstances to find out whether there is desertion within the meaning of Section 13(1)(ib) of the Act. We find same principle of law laid down in other cases including latest Division Bench ruling of this Court in Arundhati Patil v. Deepak Patil : 2008 (5) Bom.C.R. 1 : 2008 (5) All M.R. 702. Bearing in mind above position of law, I proceed to consider facts of the case in hand.
8. The advocates for the parties have taken me through the judgments of the Courts below. The Trial Court has narrated the evidence of the appellant, his father and witness Kishan. The Trial Court also narrated the evidence of the respondent, her father and witness Raghu. After stating what the witnesses have stated, in para 11 the Trial Judge came to the conclusion ' both the parties are having evidence of equal weight in their favour in this respect. Therefore, it is difficult to conclude as to actually which of the party had made sincere efforts to reconcile the matter. The appellant appears to be (to have made) the first movement in black and white, that too for the termination of the relation as husband and wife. So, it can be said that the appellant husband was eager to have the society and the company of the respondent, however, the respondent was not willing to join his society'. In para 12, it is observed that though the respondent has obtained order of maintenance under Section 125 of the Cr.P.C. vide judgment Exh.37/1, such being the position, there appears even no remote chance of reunion of the appellant and the respondent and therefore the Trial Court felt that there was hardly any utility in maintaining the marriage. Thus the reasons given for divorce are grossly inadequate and unsustainable in law. Merely because the Trial Court could not decide which evidence should be believed, that is no reason to allow the petition for divorce.
9. On the other hand the First Appellate Court has considered merits of the matter and evaluated evidence on record. The First Appellate Court has discussed the evidence and it is observed that there is much variance between the pleadings and proof, so far as evidence led by the petitioner/appellant is concerned. Thus, it is pointed out that the petitioner improved in his evidence and stated that the respondent was quarreling because of his poor financial position, because he was unable to provide proper food and because she was required to look after small children. The petitioner/appellant alleged that the respondent was interested in residing separately from his parents. There is also improvement so far as threats by the respondent to commit suicide. It is stated that the respondent used to go to river and the appellant used to bring her back. Thereafter the respondent left his house without his permission in the month of September. It is pointed out that nothing was said in the petition about such attempt of committing suicide or about going to the river by the respondent and the appellant bringing her back. There was also noting in the petition to show that the quarrels were due to poor financial condition, inability to provide proper food and because the respondent had to look after small children. It is also observed in para 11 that in the petition it was vaguely stated that several attempts were made by the petitioner/appellant to bring the respondent. In the evidence it is stated that the younger brother of the appellant was sent to Malegaon to bring back the respondent. It is also said that after the respondent left house, search for her was made. Thus the petitioner/appellant wanted to say that the respondent has absconded from the house. Considering these things the First Appellate Court did not find evidence of the appellant and his witnesses as reliable.
10. It is pointed out that from 1980 till 1984 (i.e. until the petition was filed), the petitioner/appellant did not issue any notice. The father of the petitioner/appellant P.W.2 Hullaji has also made improvement that the respondent was also quarreling with him; she was not cooking food and was not doing household work. But that is not the case of the petitioner/appellant. His father also said that if anybody asked questions to the respondent for not cooking food, doing work, she attempted to commit suicide, which is also new case not finding place in the pleadings.
11. It is observed in para 12 that P.W.3 Kishan in his cross-examination stated that the respondent cohabited properly for 34 years with the appellant. He also said that he did not know whether the petitioner and his mother were harassing and beating the respondent.
12. On the other hand the evidence of respondent and her father was found to be reliable. It is said that only after the respondent obtained order of maintenance, the petition for divorce on the ground of desertion was filed. The evidence of father of the respondent regarding attempts for reconciliation were believed. After going through the reasons given by the Trial Court and the First Appellate Court, in my opinion, the First Appellate Court properly appreciated all evidence and has come to a conclusion which can be said to be reasonable and based on evidence. The evidence of P.W.2 Hullaji and of the appellant that the respondent attempted to commit suicide or ran to river to commit suicide and the appellant brought her back and such happening more than one, shows life of the respondent was miserable. That makes her evidence about abusing and beating more probable. Absence of any notice for four years and filing of divorce petition only after decision of maintenance order under Section 125 of the Cr.P.C. makes case of the respondent more trustworthy.
13. After going through the judgment of the First Appellate Court, I am not satisfied that any irrelevant provision was quoted or there was any wrong interpretation or non-application of rulings of the High Court. Whatever case laws that are discussed in para 13 to 17 are relevant to the case in hand and it cannot be said that same was not at all relevant. Moreover, now it is well settled the 'irretrievable break down' is no ground for divorce. In this case the petitioner has come with a case of desertion and he has failed to prove it. It does not appear from the judgment of the Trial Court that the Court made any attempts for reconciliation. As stated in para 9 to 11 of Satish Sitole v. Ganga 2008 AIR SCW 5190, in some cases the Supreme Court in its power under Article 142 of the Constitution granted divorce on the ground of irretrievable break down of the marriage. But said powers under Article 142 of the Constitution are not conferred on the High Court or subordinate Courts. Nor the legislation has accepted irretrievable break down as valid ground for divorce. So, I answer last point raised at the time of admission against the appellant.
14. Considering the facts and circumstances of the case, this appeal has no merit. The same deserves to be dismissed. Therefore, the Second Appeal is dismissed. Parties to bear their own costs.