Kishorilal Govindram Bihani Vs. Sou. Dwarkabai Kishorilal Bihani - Court Judgment

M.F. Saldanha, J.

1. This appeal involves a rather intricate angle of the law relating to desertion. The proceedings, now in the second round, involve a review of the case that was tried by the Family Court at Pune. Under the law, an appeal lies to the Division Bench of the High Court where the parties are represented by Counsel and are subject to being circumscribed to the pleadings and the record of the trial Court. With recurring regularity, we are faced with a situation of both learned Counsel making a strong grievance that the case has either gone by default or that it has been seriously jeopardized because the parties were deprived of legal assistance before the Family Court. A remand at this stage would be inhuman to the parties and it is, therefore,essential that corrective steps be taken forthwith, First, the facts.

2. The appellant before us, the original petitioner before the FamilyCourt at Pune in Petition No. A-812 of 1989, has presented this appeal whichis directed against the judgment and order of that Court dated 20-1-1990. Theappellant-husband had originally filed a matrimonial petition on 13-2-1989 praying for restitution of conjugal rights. His grievance was that the respondent-wife, whom he had married on 6-7-1973, had resided with him till 26-1-1975 on which date she returned to her parents' home at Village Sonai. Thereafter, followed a long gap of separation, which ultimately came to an end on 16-12-1984 when the wife ostensibly at the behest of the petitioner and other persons came back to reside with the appellant. This cohabitation was for a short period because the respondent again left the matrimonial home on 27-2-1985 and it is common ground that there was no resumption of cohabitation thereafter. The appellant had originally moved the Family Court for a relief of restitution of conjugal rights obviously with the intention of restoring the marriage to its original status. The couple had two children, both sons, the first of them born on 5-3-1975 and the second one born on 15-10-1985. The appellant had contended that in spite of his best efforts and for no fault of his that the wife had continued to reside separately from him and he was, therefore, desirous that the Court should grant him relief whereby his conjugal rights could be restored. Two months thereafter, on 25-5-1989 to be precise, the appellant presented an application to the Court for amendment of the original petition, which came to be granted. By this amendment, the appellant prayed for the alternate relief of divorce from the respondent on the ground that she had deserted him for a. continuous period of over two years.

3. We must at this stage dispose of an objection that was sought to be canvassed before us by learned Counsel Shri Shah, appearing on behalf of the respondent-wife. He has pointed out to us that the petition- in its amended form retains the original prayer for a decree of restitution of conjugal rights and at the same time incorporates an alternate plea for divorce on the ground of desertion. Mr. Shah points out that on these pleadings, the appellant before us is totally precluded from praying for a decree of divorce. He contends that the prayers are mutually exclusive and if the appellant desires restitution of conjugal rights first and expresses unqualified willingness to live with the respondent, then the question of granting any alternate relief cannot be pleaded in appeal, implying thereby a bar of estoppel. Mr. Anturkar, learned Counsel appearing on behalf of the appellant, has pointed out to us, and to our mind with some justification, that the original prayer made to the trial Court is an indication of the utmost bona fides on the part of the appellant, who has all through the pendency of the marriage displayed his desire to continue with it. Once he realised when the matter had come to the Court from the attitude of the respondent that the prayer for restitution of conjugal rights in the circumstances in which he was placed is a worthless one and, therefore, he was left with no other option except to pray for the relief of divorce on the ground of desertion. We need to take serious note of the fact, as pointed out to us by both learned Counsel in the course of the hearing, that by virtue of the misreading of the provisions in the Family Courts Act and these courts all but barring appearance of advocates before that forum completely, that inconsistencies of the present nature are inevitable. The parties before us are a simple middle-class couple. The husband is a clerk working with the S.S.C. Board of Pune and the respondent-wife has very little education. The record of this case is quite eloquent in so far as it indicates the handicaps under which the litigants are placed when they are deprived of the services of legal assistance before Family Courts. It is this factor alone that has persuaded us to take a charitable view of the record that is otherwise in shambles.

4. We, therefore, do not attach any significance to the technicalities with regard to the inconsistencies or otherwise in the pleadings, but we would prefer to hear the appeal by delving into the substance of the real issue that falls for determination. Suffice it to say that the prayer for dissolution of the marriage, whether alternative or otherwise, did exist in the petition as presented and the short question before us is, therefore, as to whether on the material placed before the trial Court, the appellant before us was entitled to any relief.

5. Adverting here to the issue regarding representation by advocates before the Family Court, it is essential to recognise the immense damage that can be done to the proceeding and to the parties if they are handicapped for want of competent legal assistance. Where there is a serious contest, the pleadings are of consequence and the conduct of the trial involves the leading of evidence, cross-examination and a variety of stages,the handing of which would be extremely difficult even for a well-educated person. One cannot overlook the emotional aspect that is paramount in these proceedings, which may, at times, render it impossible for the effected party to think clearly or rationally. The damage done at the trial stage would be fatal to an appeal. Conversely, even where consent is the ground or there is no real contest, the parties ought to beaware of what they can ask for, what they can insist upon, the finality of the orders, the scope for review and the implications of consent, waiver or admissions. The record of this case only reinforces our belief that the Family Courts would do well to ensure that litigants are saved from such predicaments and that they be afforded legal assistance when they desire it.

6. Mr. Anturkar, learned Counsel appearing on behalf of the appellant, has, in the first instance, clarified that his client only presses the prayer with regard to the divorce on the ground of desertion. He states that his client in now sufficiently advanced in life and that his client had made an unending number of efforts to save the marriage, but the same is irretrievably broken down and that there could be no question now of resumption of the matrimonial status. Under these circumstances, painful as it is, the appellant has no option except to pray for a divorce. In this background, Mr. Anturkar points out that the facts of the present case indicate two relatively long periods of separation between the spouses. The first of them covers the period between 26-1-1975 and 16-12-1984 a period of a little under 10 years. The second of them extends from 27-2-1985 upto 13-3-1989, a period of over 4 years. It is Mr. Anturkar's contention that, undoubtedly, there was a brief period when the parties did live together for approximately three months between 16-12-1984 and 27-2-1985, but that this will not disqualify the appellant from claiming the relief if he can establish that the matrimonial offence of desertion had been complete in either of the two periods. Basically, what is contended by Mr. Anturkar is that unlike in the case of certain matrimonial offences, such as adultery, the resumption of cohabitation in December 1984 will not absolve the respondent from the liabilities of her acts merely because she had come back to stay with the appellant for sometime. In effect, it appears that what the learned Counsel is contending is that on the facts of this case, there is a revival of the earlier offences of desertion very shortly after the respondent-wife had come back to live with the husband and to this extent, according to him, merely because there was some break in the period of desertion, she cannot take advantage of that fact. The issue does not really require any debate because the appellant would be entitled to the relief that he has prayed for, if he is able to establish that the period of desertion was for a continuous period of 24 months and is so far as admittedly the period of desertion after 27-2-1985 upto the date of filing of the petition itself exceeds this period, there is no specific reason that requires us to examine the intricacies of this argument in this case. Suffice it to say however that there is considerable substance in this submission.

7. Mr. Anturkar has taken us in some detail through the evidence that was presented by the parties before the trial Court. The petitioner has examined himself. He has examined his brother Radhakisan and has also examined one more witness by the name of Baban Khandve. As far as the respondent-wife is concerned, apart from examining herself, she has also examined one Onkarnath Malpam and a family friend by the name of Dattatraya Sable Apart from this, we also have on record certain original letters and copies produced by the respective parties. We have gone through the evidence in considerable detail We have also examined not only the documents that the parties have produced but in addition the record of the lower Court. We have heard learned Counsel on both sides in some degree of detail because this case is not free from dispute on certain material issues.

8. Before recording our findings on the material that is placed before us, we would prefer to summarise the issue that falls for determination in this appeal. As indicated earlier, the appellant prays only for a relief under 13 of the Hindu Marriage Act and the ground adduced by by of deseration. The fact that the respondent-wife was physically staying away from his for two long periods of time the first of them extending to almost 10 years and the second one extending to over 4 years is not really in dispute There has, how-ever, been a furious contest with regard to the circumstances that occasioned these separations. Whereas it is contended by the appellant that in law he is entitled to the relief if he satisfies the Court that the opposite party had abandoned the matrimonial status and stayed away from him for a period of over 24 months and that this was not due to any fault on his part, Shri Shah, learned Counsil representing the wife, has vehemently argued that this present a typing situation of the case, along with his relatives making it virtually impossible the poor wife to continue residing in the matrimonial home. Mr. Shah contends that the defence pleaded by the wife has been fully made out incase and that she has amply demonstrated to the satisfaction of the trial Court that she was virtually driven out of the matrimonial home and that her non- return to the matrimonial home was because of the situation created by the appellant and his relatives on the one hand and the fact that they virtually prevented her return and did not take her back. Under these circumstances, what need to be decided is the question as to whether it is demonstrated to us that the petitioner was not responsible for the departure of the respondent-wife, and secondly, as to whether the respondent-wife in her defence has established that even though she was the party who left the matrimonial home that this was because she was virtually forced to do so, or rather had no other option.

9. The petitioner and his two witnesses entered the witness-box and in their deposition made out a case that the respondent was well treated and apart from their oral evidence they have sought to rely on certain letters, the first of them being a letter dated 6-10-1973 written by the sister of the respondent as also the letter dated 6-5-1974 written by her brother. In both the letters, there are references to the fact that the respondent Dwarka was sufficiently well treated. Apart from their oral evidence, wherein they have conclusively made out a case that there was no justification in law for the respondent to have left the matrimonial home, the petitioner has relied heavily on the efforts made by him, both personally and in the company of others, to persuade the respondent to come back and stay with him. To this extent, he relies not only on the oral evidence but also on certain bills relating to telephone calls which have come on record, namely, the bill dated 27-5-1985, bill dated 16-12-1984 and the bill dated 13-3-1986 on the basis of which he contends that he had demonstrated before the trial Court that in addition to various persuasive efforts that he had even made a series of telephone calls to try and get the respondent wife to come and stay with him. We have examined this evidence and we are satisfied from the material placed before us that the petitioner did at all times make serious efforts to get the respondent-wife to come and reside with him. We are also satisfied from the record before us that the petitioner cannot be held responsible for the departure of the respondent-wife from the matrimonial home as also her having stayed away from him for both these long periods of time.

10. As against this position, Mr. Shah, learned Counsel appearing on behalf of the respondent-wife, has advanced a submission before us wherein he contends that this Court should take note of certain telling circumstances which would unequivocally establish his case. Firstly, he points out that there is no dispute about the fact that the relations between the parties were quite good in the beginning. He states that the parties are middle-class persons, that theresidential accommodation which was available to them was relatively small and that this was one of the situations which was gave rise for the mother-in-law and other family members continuously to harass and ill-treat the wife. He has also relied on an incident that took place on 26-1-1985, which was the date on which the respondent left the matrimonial home for the first time. The respondent has stated in her evidence that she had cooked some food on that dayand unfortunately a stray dog ate up the food, as a result of which there was aserious incident in the home between the respondent and her mother-in-law.The petitioner lost his temper and slapped her on that occasion. She also contends that because of this incident, she was starved and that even though shewas pregnant at that time, she had to virtually leave the matrimonial homewithout any money and travel by a truck to her father's house. Shri Shah contends that even on the second occasion, i.e., on 27-2-1915 when the respondentwife left, she has pointed out in her evidence that there was no let-up as far asharassment and torture to her was concerned and that she was virtually forcedfor her own safety to leave the matrimonial home. It was her misfortune thatthe petitioner was unduly attached to his family members and that this outweighed his duty to the wife, and in this back ground for her own safety andsanity, the respondent-wife had no option except to go away. Mr. Shah emphasises the fact that the respondent has two children out of this marriage.He submits that this Court should draw an inference in favour of the respondent-wife to the effect that she was serious about saving the marriage and about her duties as a wife and mother, as otherwise she would not have borne these two children and looked after them. It is Mr. Shah's contention that even at an earlier point of time in a previous litigation when the wife had filed an application for maintenance, she had made an offer expressing her keen desire to livewith her husband, the terms had been recorded, that she had virtually come toCourt with bag and baggage, but according to her, in spite of this the petitioner-husband did not take her back. All these circumstances put together,according to Mr. Shah, would unequivocally demonstrate the mental make-upof the respondent-wife which was towards saving the. marriage and has notdirected towards abandonment of that status. He, therefore, contends that onthe basis of this material, the trial Court was fully justified in having refusedthe petitioner-husband the relief that had been prayed for by him. Mr. Shah hasalso placed considerable reliance on the oral evidence of the wife Dwarka asalso at her two witnesses Onkarnath and Dattatraya and he states that it is notas if the wife was a guilty party but that she was virtually at the receiving end.On the basis of this evidence, he contends that the Court must accept theposition that the respondent-wife was left with no option except to stay away,as she had done.

11. The second submission canvassed by Mr. Shah that the respondent-wife is an ordinary middle-class housewife. He states that she was fully conscious of the fact that she hails from a strata of society where she has virtually no standing in future except as part and parcel of a matrimonial home and in addition to it being a mother of two sons, that this Court ,must accept her evidence when she states that she was and still is willing anddesirous of continuing with the marriage. It is this aspect of the matterwhich requires some examination. We have on record the totality of theevidence which undisputedly indicates one factor, namely, that there was noserious breakdown of the matrimonial relationship between the spouses.This is not a case where it was pleaded that the parties had virtually fallenout and reached a stage that they could not live together. The grounds pleaded by the respondent for living separate are neither sufficiently establishednor are they justified. On the first occasion, the respondent contends that itwas the incident concerning the dog which made her ultimately free fromthe matrimonial home. The background of this incident does not presentany degree of gravity, apart from which we find from the record that, no suchsituation of total breakdown had occasioned which would require the respondent to stay away from the husband for a long period of years, unless shehad made up her mind not to return. We have ample evidence on record toindicate that efforts for resumption of cohabitation were made and- this musthave been the case having regard to what invariable happens in IndianSociety.

12. Under these circumstances, from the record, we do not find anysufficient or ample justification for the respondent-wife to have stayed awayfrom the petitioner for this long period of time. More importantly, we needto examine the circumstances under which she left the matrimonial home on27-2-1985 after having returned on 16-12-1984. Admittedly, she was onceagain pregnant at that point of time. Mr. Shah uses this circumstance asa strong indication of the fact that the represent-wife was mentally preparedtowards saving the marriage and not towards breaking it up.

13. Mr. Anturkar had demonstrated to us from the record thatthe ground made out by the respondent-wife viz. that she left because of theillness of her father appears to be not only incorrect but it is established tobe false Mr. Anturkar has drawn our attention to the correspondenceBetween the parties received around that time, which indicates that the respondent s lather, though a sick person and under some medical treatment for a long time, had received and Was reasonably well. The case made out that he had suddenly fallen ill, does not appear to be plausible If that be so, the respondent's brother, who had taken her back, would have certainlybeen examined as a witness and would have established this, factor Regardless of the ground on which the respondent-wife left the matrimonial home what is of importance is that it has been demonstrated to our satisfaction that is of petitioner husband, even after that date right upto the year 1987, did make efforts requesting her to come back. That she did notreturn right through this period and continued to live separately upto thedate of filing of the petition would, therefore, be a circumstance that mitigatesheavily against her. Whereas Mr. Shah has contended that the evidencesought to be produced by the petitioner in favour of his plea that he wasrequesting the respondent-wife to return to his house is unreliable hestates that the record of the maintenance proceedings will indicate thatthe parties had arrived at a compromise before the Court to the extent tintthe petitioner-husband had agreed to take the wife back and that it was hewho backed out thereafter. We have on record a copy of the consent termsbut there is no indication either from that record or from the judgment ofthe Criminal Court as to what happened after that compromises was arrivedat, We are, therefore, unable to draw any conclusive inference from thesecompromise terms Suffice it to say that any effort made to resume thecohabitation after filing of the present petition would not absolve the restore-dent-wife from the legal and other consequences following from the long periodof desertion.

14. The anatomy of the matrimonial offence of desertion requires some degree of examination. The statute does not define the term and it would, therefore, be useful to advert to some of the authorities for purposes of crystallizing the position. Black's Law Dictionary Sixth Edition defines desertion as 'The act by which a person abandons and forsake. without justification, or unauthorised, a station or condition of public social or family life, renouncing its responsibilities and evading its duties A wilful abandonment of an employment or duty in violation of a legal or moral obligation'

15. As far as divorce is concerned, Black summarizes the position as follows:

'an actual abandonment or breaking off of matrimonial cohabitation, by either of the parties, and a renouncing or refusal of theduties and obligations of the relation, with an intent to abandon orforsake entirely and not to return to or resume marital relationsoccurring without legal justification either in the consent orwrongful conduct of the other party. The elements of the offendof 'desertion' as a ground for divorce are a voluntary intentionalabandonment of one party by the other, without cause or justification and without consent of the party abandoned'.

16. It is essential to consider also the aspect, of 'constructive desertion', which situation Black has defined in the following terms:-

'That arising where an existing cohabitation is put an end toby misconduct of one of the parties, provided such misconduct isitself a ground for divorce. For example, where one spouse, byhis or her words, conduct, demeanor, and attitude produces anintolerable condition which forces the other spouse to withdraw fromthe joint habitation to a more peaceful one'.

17. The essential ingredients that constitute the matrimonial offenceof desertion take on different complexions, human nature and its complexitiesbeing what they are. The simplest form of desertion, defined by the commentators as actual desertion involves the fact of separation (factum desirandi)and the intention to desert (animus desirandi). This contemplates a situationwhere the spouses have physically parted company, in the first instance, andit is demonstrated that there is an intention on the part of one of them towithdraw from the company of the other. In other words, it is not merelya fact that the parties are staying apart from each other for sometime, whichmay be due to a variety of reasons, but the fact that this is accompanied bythe 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 offendingspouse and, in fact, the guilty one. is not the party who has departed but theone who stays behind, such as the familiar situation where, for reasons ofsever mental and/or physical cruelty, it becomes unsafe or impossible forthe 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 contendthat the wife has been guilty of desertion. There also arise the restrictedcategory of cases where Courts have held that wilful neglect of an extremetype could be construed as desertion, a typical situation being one where thespouses, though residing under the same roof, one of them has nothing to dowith the other and virtually puts an end to the marital status, though neither ofthem have physically moved out of the premises.

18. Desertion, as pleaded or alleged, may assume one or more ofthe aforesaid complexions and it is, therefore, essential for the Court toexamine the material on the basis of which the charge is sought to be established. It is equally necessary to guard against certain familiar situationsto which there exists a total defence, for instance, where it is alleged that thewife left the matrimonial home without the husband's consent and refusedto return in spite Of several requests. It would be a valid defence if the Courtis satisfied that the grounds which have forced the wife to live separatelyare genuine and cogent. It is equally well-settled law that where one spousehas left without any valid justification that the law does not insist on theother spouse making any special or undue efforts to bring the deserting spouseback. It is true that by making such efforts, the innocent party wouldestablish its bona fides, but merely because no such efforts were made, itwould be incorrect to presume that there is a acquiescence of the act ofdesertion.

19. The time factor is one of consequence because the statute prescribes a continuous period of desertion extending to two years as the time-spanwhich is fatal to the marriage. It is obvious that sufficient allowance hasbeen made even for difficult situation, for the law takes cognizance of the factthat there is a limit to reasonableness and to the length of time for whichthe opposite party can be made to suffer and, therefore, the cause of actionarises immediately on its being established that desertion has taken place fora continuous period of two years.

20. Before adjudicating on merits, out of concern about the aspectof the welfare of the respective parties and two young children, we had askedboth learned Counsel as to whether there is any possibility of a patch-upeven at this point of time. Shri Anturkar had pointed out that his clientduring all these years did make very strong efforts and very serious efforts for agenuine compromise, but those having failed and the litigation having goneon for several years between the parties, any such efforts would be worthless.We have, therefore, not persued our efforts in that direction.

21. On the basis of the record that has been placed before the Court,it is established that the petitioner has made out a case of desertion. Undoubtedly, it is not totally obligatory on the part of one spouse to keep on persuading the party that has left him to resume cohabitation. But in the situationswhere this is done, it would certainly be an indication of bana fides. It wouldalso be highly supportive evidence of the fact that the party concerned is notthe guilty one and was not responsible for the breakdown of the relationship.The evidence produced in this case establishes that the respondent-wife hasdeserted the petitioner for a continuous period of two years and, consequently,the petitioner would be entitled to the relief that he has prayed for. To thisextent, the judgment and order of the trial Court is liable to be set aside.

22. Learned Counsel representing the parties in this case as also in aseries of appeals from the Family Courts have made a grievance with systematicregularity that applications for legal assistance, even when made in writingbefore the Family Courts, are rejected without giving any satisfactory reasons.Whereas it is true that the Family Court is not required to pass elaborateorders on such applications, having regard to the unfortunate situations whicharise thereafter, wherein specific prejudice is not only pleaded but is demonstrated, we consider it expedient to lay down certain broad norms which theFamily Courts should follow in such situations :

(a) That it be ascertained from the parties at the initial stage of theproceeding itself as to whether there exists need for the engagement of an advocate and, if so, what are the grounds in supportthereof.

(b)The Judge shall ascertain from the status of the parties, i.e., theage, educational qualifications, etc., as to whether they appearto possess the requisite capacity and qualifications to conductthe proceeding in person. This shall be all the more necessaryin cases where the parties appear to be uneducated or semi-educated.

(c) The normal place of residence, occupation, economic capacityand the feasibility of the party attending the Court in per$onwithout abnormal and undue hardship shall also be ascertainedand if it appears that the party would be subjected to considerable difficulty, loss or inconvenience by having to attend theCourt in person, it would be advisable to permit representation.

(d) The complexities of the' case on both sides will have to begleaned from the preceedings, for instance, the question as towhether any specialised medical, psychiatric or other specialisedknowledge is called for, or whether the conduct of. the casewould require special skills of an experienced cross-examiner, allof which it would be unreasonable to expect from a lay litigant,

(e) If it appears that the, parties are unevenly matched resulting inan obvious unfair advantage to one of them, the Court shallensure that this handicap be minimised by permitting legal assistance.

(f) In proceedings, such as petitions filed by consent of the parties,or where it appears that a contest on merit is minimum, undoubtedly, the presence of an advocate may appear redundant, butthe trial Court shall apply the aforesaid tests for the purposeof ascertaining that the Consent is free and fair and that noundue advantage is being taken by one of them. Instances areabundant in matrimonial proceedings where a grievance issubsequently projected that the implications of an admission ora consent were not known to the party, or that a party wronglygave up certain rights, or that .a party was unaware of the finality or otherwise of orders passed, in these proceedings, or forthat matter, was unaware of what could be legally insisted upon.It is a misnomer, therefore, to assume that legal representation isentirely unnecessary eyen in this category of cases.

(g) Matrimonial litigations invariably envisage not only hurt-feelingsbut supercharged emotions, both of which provide valid justification for the view that parties involved in such a tussle wouldfind it difficult to conduct a proceeding against the adversary andin these situations where a violent contest is apparent, thepresence of Counsel could, undoubtedly, act as a shock-absorber.More importantly, matrimonial proceedings often-times involveembarrassing details which would make it extremely difficult forthe litigant to hand personally.

23. Undoubtedly, the situations that arise before the Family Courts arecomplex, ones, but we have attempted to illustrate a few of the situations inwhich the Court ought to consider the need or the necessity for representationby an advocate and to permit it. It would be equally useful in cases where theCourt is of the view that representation by an advocate is unnecessary, thatbrief .reasons he recorded indicating that the overall complexion of the case andan assessment of the parties having been done that the Court concluded thatsuch representation was unnecessary and that it would not result in prejudice.

24. We, accordingly, set aside the judgment and order of the TrialCourt dated 29-1-1990. The appeal is allowed. The appellant shall be, entitledto a decree of divorce under Section 13 of the Hindu Marriage Act from therespond,ent on the ground of desertion. As far as consequential reliefs relatingto maintenance, etc., are concerned, we are not called upon to deal with thatmatter in so far as we are informed that proceedings are pending before thelearned Single Judge of this Court. It shall be open to the parties to seekappropriate prodders from that Court in the light of our judgment.

25. The appeal is accordingly allowed. In the circumstances of the!case, there shall be no order as to costs.