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IN THE HIGH COURT OF BOMBAY
K.K. Desai and N.P.Nathwani, JJ.
Appellants: Dina Dinshaw Merchant
Vs.
Respondent: Dinshaw Ardeshir Merchant
A.F.O.D. No. 249 of 1967 Decided On: 06.03.1969
Counsels:
For Appellant/Petitioner/Plaintiff: H.D. Banaji, Adv., i/b., Vacha and Co. Attorneys
For Respondents/Defendant: S.D. Vimadalal and C.N. Daji, Advs., i/b., Little Co. Attorney
PARSI MARRIAGE AND DIVORCE ACT, 1936 - S. 46, 47 - DIVORCE - CONSTRUCTIVE DESERTION - RECONCILIATION - WITHDRAWAL OF SUIT - EFFECT - FINDINGS OF DELEGATES - INTERFERENCE BY HIGH COURT - JURISDICTION.
Fact of the Case:
The plaintiff filed a suit for divorce on the ground of constructive desertion by the defendant. The defendant filed a counterclaim for judicial separation. 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 a decree for divorce. In view of the decree, he dismissed the counterclaim made by the defendant for judicial separation.
Finding of the Court:
The High Court held that the withdrawal of the suit by the plaintiff did not amount to an abandonment of his right to rely upon the previous acts of cruelty committed by the defendant. The reconciliation which resulted into the withdrawal of the suit in April 1961 brought the previous constructive desertion, if any, completely at an end. In law, the plaintiff lost all rights to rely upon the previous alleged acts of cruelty. The result of the withdrawal of the suit was that it was not open to the plaintiff to contend that constructive desertion had commenced at any date prior to April 1961. This was in law the result of the withdrawal of the suit. The learned trial Judge should have himself, as on demurrer or in limine, held that constructive desertion had not existed for a period of three years immediately prior to the date of the suit. The learned trial Judge should not have left the matter of the decision of Issues Nos. 3 and 4 arising on the written statement for the decision of the Delegates as questions of facts; he should have himself held that the result of withdrawal of Suit No. 45 of 1959 in April 1961 was that in law all the prior acts of cruelty and desertion had ceased to be available to the plaintiff and the suit had been filed prematurely and was, therefore, liable to be dismissed. The issues should have been answered in the above manner. In the alternative, the submission was that, having regard to the above position in law, the learned trial Judge should have directed the Delegates that the plaintiff was not entitled to rely upon any acts of cruelty of the defendant prior to April 1961, He should have accordingly directed the Delegates to answer Issues Nos. 3 and 4 in the negative.
Issues: 1. Whether the withdrawal by the plaintiff of his Suit No. 45 of 1959 in April 1961 amounted to an abandonment by the plaintiff of his right to rely upon the previous acts of cruelty committed by the defendant? 2. Whether the findings of the Delegates on Issues Nos. 3 and 4 arising on the written statement were wholly opposed to the evidence on record and, therefore perverse and contrary to law? 3. Whether there was overwhelming evidence tendered on behalf of the defendant about the plaintiffs acts of gross cruelty continuously upto the date of the institution of the counter-claim and thereafter?
Ratio Decidendi: 1. The withdrawal of a suit for judicial separation does not amount to an abandonment of the right to rely upon previous acts of cruelty committed by the defendant. 2. The reconciliation which results in the withdrawal of a suit for judicial separation brings the previous constructive desertion, if any, completely to an end. 3. In law, the plaintiff loses all rights to rely upon the previous alleged acts of cruelty. 4. The result of the withdrawal of the suit is that it is not open to the plaintiff to contend that constructive desertion had commenced at any date prior to the withdrawal of the suit. 5. The High Court has no jurisdiction to interfere with the findings of the Delegates on questions of fact unless it is shown that the Delegates misconducted themselves in arriving at their decision or that they ignored the material evidence on record.
Final Decision: The appeal was dismissed.
1. This is the defendants 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 plaintiffs 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 defendants 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 plaintiffs married life was completely shattered by innumerable acts of gross cruelty and callousness on the part of the defendant. As a result of the defendants 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 defendants 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, 19
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