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IN THE HIGH COURT OF BOMBAY
Sharad Manohar, J.
Meenakshi Ashokbhai Doshi ... Appellant.
Versus
Ashok Dhirajlal Doshi ... Respondent.
First Appeal No. 253 of 1986, decided on 6, 7, 8, 9/10-1986.
Advocates appeared :
Miss. N.A. Bandukwala, for appellant.
Mrs. S.D. Nanavati with Mrs. Nerurkar, for respondent.
The plea of resjudicata cannot be raised at all, because resjudicata is constituted by the decision of a Court with jurisdiction; not by the decision of a Court which holds that it has no jurisdiction.
The decision was given at the inter locutory stage by the trial Court. The Revision Application was the continutation of the said proceedings. This means that the decision of the trial Judge became final at the inter locutory stage, In the eyes of law, this order on the Chamber Summons forms pari and parcel of the final decree passed by the trial Court. That decree is manifestly appealable It should follow that every part of be same must be held to be Questionable in Appeal. The fact that some part of the same was not interfered with by the Court in its revisional jurisdiction should make no difference in principle, The entire mailer is open before the Court for having a second look at and every inter locutory order passed their can be set right by the Court if doing so is found necessary in the interest of justice. Order 6, Rule 4, Order, 18, Rule 11.
See Hindu Marriage Act, 1955, Section 13. Order 6, Rule 17-Amendment of pleading - allowed-Effect-Held-Deemed to have become part of written statement -But legitimate subject of cross examination.
Once the amendment is allowed, it is deemed to have become a part of the Written Statement right from the date of filing the Original Written Statement, but it would be a legitimate subject of cross-examination to ascertain whether the facts pleaded by the amendment were not an after thought.
Section 13 -Civil Procedure Code, 1908, Order VI, Rule 4 and Order XVIII, Rule 11-Divorce-Particulars in pleading-Cruelty-Objector-Wife not aware of intricacies of law-Relevant question-Justification-Held-Learned Judge not justified in overruling objection-Objection justified.
Advocate evinces a degree of indifference or inefficiency or negligence if he does not ask such question to his client and does not secure appropriate instructions from the client in that behalf. This Court could understand such line of cross-examination if the respondent was a law graduate or a practicing Advocate or where knowledge about such intricacies and technicalities was a proven or established fact. If such person had failed to give the particulars of cruelty etc. in the Written Statement, the above mentioned question asked to him or her might have been justified; but in the case of a layman as a client it is a sheer futility to expect such knowledge or awareness of intricacies of the law of pleadings on the part of such client. Learned Counsel for appellant was justified in objecting to this question and the learned Judge was not justified in over ruling the objection in the context of the facts of the case.
SHARAD MANOHAR, J.:---This is as appeal filed by the respondent with against the decree of divorce passed against her by the City Civil Court, Bombay.
For the sake of convenience, the parties will be referred to with reference to their position in the trial Court as petitioner and respondent, the husband being referred to as the 'petitioner' and the wife being referred to as the 'respondent'.
2. To state it very briefly, the petitioner husband filed the petition against the respondent wife for divorce on the ground that with effect from 25th October, 1976 she left the matrimonial home with the intention not to return back to the matrimonial home at any time. In other words, according to the petitioner she deserted him for good on and with effect from 25th October, 1976 and that she had not come to the matrimonial home right till the date of the petition which was filed on 4th March, 1980.
The respondent's defence on other hand was that she did not leave the matrimonial home out of volition but was forced to take that step because of the harassment and ill-treatment meted out to her by the petitioner and his parents and sisters. In other words, it was her case that the boot was on the other foot and that it was a case of constructive desertion on the part of the husband himself.
Pending the hearing of the petition, she made an application for interim alimony and interim alimony had been awarded to her by the Court at the rate of Rs. 850/- per month for herself as well as for the child from the marriage.
After the evidence was led and the arguments were heard, the learned Judge was satisfied that the respondent-wife had not made good her case of such cruelty as could give rise to the inference of constructive desertion on the part of the husband. At the same time, however, the learned Judge was of the view that the petitioner-husband had not placed all the evidence before the Court to prove his plea of inability to pay maintenance to the respondent-wife at any rate higher than Rs. 850/- per month as already ordered by the Court. Taking an over-all view of the evidence, reading between the lines as it were, the learned Judge arrived at the conclusion that the petitioner-husband must be getting an income of Rs. 5000/- per month and on that basis, directed payment of alimony to the respondent-wife under section 25 of the Hindu Marriage Act, 1955 at the rate of Rs. 2000/- per month, Rs. 1500/- for the wife and Rs. 500/- for the child. The petitioner's petition for divorce was, therefore, decreed by him but at the same time he ordered the petitioner to pay maintenance to the respondent aggregating to Rs. 2000/- per month for herself and for the child.
It is against this decree that the respondent wife had filed the present Appeal to this Court whereas the petitioner-husband had filed cross-objections contending that the award of alimony at the rate of Rs. 2000/- per month was not justified by the evidence on the record.
This is the broad picture of the nature of dispute that is required to be resolved by me in this Appeal. But I may say at this stage itself that the resolution of the dispute is the last thing which will take place in this Appeal. As rightly pointed out by Mrs. Nanavati, the spouses are living apart for ten years by now; there exists complete absence of rapport between them; practically they are strangers to each other by now and it appears that even the child has been a stranger to the father. In fact it is the argument of Miss Bandukwala appearing for the respondent-wife that on all material occasions the petitioner-husband has treated even the child with coolness, aloofness and indifference. No doubt this position is not admitted by Mrs. Nanavati appearing for the respondent-husband. In fact she has placed before the Court an Insurance Policy taken by the petitioner for the child by virture of which a sizable amount will be available to the child in one lumpsum upon his attainment of majority. Whatever t
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