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IN THE HIGH COURT OF BOMBAY
Ashok Agarwal, J.
Alka Bhaskar Bakre (Smt.)... Appellant.
Versus
Bhaskar Satchidanand Bakre ... Respondent.
First Appeal No. 834 of 1987, decided on 15/16/17-1-1990.
Advocates appeared :
M.D. Angal, for appellant.
D.S. Sawant, for respondent.
Held-In the present modern set up it cannot longer be claimed that it is only the house of the husband or the house of his parents that will be the matrimonial home of the parties. In the present times husband and wife are equal partners and in the present case the wife is little more than an equal partner. She has an equal right of having a say in the matter of determining the place of their matrimonial home. The fact that the parties had booked the ownership flat in Bombay towards which, according to the husband, he has contributed the initial amount, is a pointer to the intention of the parties to settle down in Bombay, Therefore, it is this house which is the matrimonial home of the parties.
Section 13 (1) (i-a)-Divorce petition by husband – Cruelty-Letters written by husband to wife produced by wife in evidence-Contents of said letters not set out in petition.
Held-When allegations in letters were not contained in petition, husband can not be allowed to rely on them In support of grounds of cruelty.
Section 13 (1) (i-a)-Divorce petition-Cruelty-Both spouses employed Husband at A and wife B-Wife resigning her job and joining him at A Husband proceeded to Germany wife came back at B-Husband returned from Germany and was posted at A -. Wife again resigned her job to accompany husband at A Husband transferred to B and she got re-employed at B-Husband again transferred at N & then at A-wife refusing to leave her job and to join bus band-Husband writing wife two letters containing baseless and wild allegation wife prepared to reconcile but husband refusing to express regrets.
Held-Wife could not be blamed in above circumstances to deny husband conjugal rights. Her refusal to join husband at N or at A would not amount to cruelty. Husband not entitled to Divorce decree.
Section 26-Order for maintenance.
Held-Jurisdiction of Court to pass orders for maintenance restricted to minor children alone. Once children attain may only provision of Lection 26 would cease to apply.
Sections 13 (1), 13 (1) (i-a) and 13 (1) (i-b)-Cruelty-Absence of some allegations of cruelty in petition for divorce-No such allegation can be relied upon-What constitutes cruelty?-Refusals by wife to dance to his time and to live her in-laws are not wifes cruelty-Allegations of her chastity made by husband - Wife agreed to live with husband provided he expresses regrets for such allegations-It is no cruelty or desertion.
The allegations contained in these letters are wild and unjustified. Even then the wife was prepared to reconcile if the husband expressed regrets. The husband, however, Justified the allegations and threatened the wife not to open the topic. If in these Circumstances, the wife has refused or denied her husband his conjugal rights it is only the husband who can be blamed.
In the present modern set up it can no longer be claimed that it is only the house of the husband or the house of his parents that will be the matrimonial home of the parties in the present time husband and wife are equal partners and in the present case the wife is little more than an equal partner. She has equal night of having a say in the matter of determining the place of their matrimonial home. The fact that the parties had booked tile ownership that in Bombay towards which, according to the husband, he has contributed the Initial amount, is a pointer to the Intention of the parties to settle down in Bombay in Courts Judgment, it is this house which is the matrimonial of the parties.
Despite such serious allegations having been levelled against her, the wife was prepared to accept the husband back on the condition that he express regrets. He, however, declined and on the contrary justified the allegations. If in these Circumstances, the wife refused to cohabit, can she be held to be a guilty spouse.
In courts judgment, if there has been an estrangement between the parties the husband is wholly responsible and hence the husband is not entitled to any reliefs on this ground the decree passed by tile learned Judge of the trial Court on the ground of desertion is liable to be set aside.
Section 26-Order of maintenance-Jurisdiction of court - Such orders under Section 26 are restricted to minor children alone.
The above provisions make it clear that the jurisdiction of the Court to pass order for maintenance are restricted to minor children alone. Once the children attain majority the provisions of Section 26 would cease to apply. Hence the order of maintenance under the Hindu Marriage Act can be passed ouly during the minority of the children.
2. The parties to the marriage hail from a middle class educated family. The father of the wife was the head of the department of Sanskrit in Ruia College, Bombay, whereas the father of the husband was a retired school teacher at Wardha. The wife having passed her M.A. in Sanskrit was employed as a Lecturer in Ruia College. The husband had passed his B.E. (Civil) and was an Assistant Lecturer in the Government Polytechnic at Amravati. The marriage between the parties was soleminised in Bombay on the 18th March, 1967. Soon after the marriage the wife tendered her resignation and accompanied the husband to Wardha where her in-laws were residing. The parties stayed there for about 8 days and thereafter proceeded to Amravati and stayed there till about the end of April 1967. Thereafter the wife came back to Bombay for the purpose of assessing the examination papers. She also undertook German language course. In May, 1967 the wife withdrew her resignation and rejoined Ruia College in June 1967. She was also required to attend the marriage of her sister Vidya which was solemnised at about that time. In June, 1967 the husband was called for an interview for German Scholarship for which he was selected. Between July and September 1967 the husband attended the German language course at Pune. He proceeded for Germany on the 10th October, 1967. In March, 1968 the wife obtained a passport probably with a view to join her husband in Germany. The husband returned from Germany and rejoined the college at Amravati in December, 1968. On his request the wife gave up her job by resigning and joined her husband, at Amravati in March, 1969. The husband however, was transferred to Bombay in December 1969 and hence both the husband and wife came to Bombay and the wife rer-employed in Ruia College. In August/September 1970 the husband was transferred to Nagpur. In March 1971 he was transferred to Amravati. In July 1971 the husband joined VJTI at Bombay for post graduation and was posted in Bombay after he completed his post graduate examination. Thereafter the husband resided in the Shardashram for sometime. Thereafter the husband resided in the VJTI hotel during which period the wife resided with her parents. On 11th January, 1972 a son Abhijeet was born to the couple. During October/November, 1974 the couple resided at Thane and thereafter in Government quarters at Bandra. The wife had in the meanwhile in 1972 booked a flat at Andheri and it is the case of the husband that he had contributed the initial amount of Rs. 3000/- towards booking of that flat. This flat was ready by about March, 1975 and the couple shifted their residence to this flat.
3. On the 1st of September, 1975 a daughter Ajita was born. The husband, however, on the 1st July, 1976 came to be transferred to Nagpur. In the same month, the wife got herself admitted for M.A., in Sociology. During his stay in Nagpur the wife visited him on a couple of occasions. However, it is the grievance of the husband that she did not visit parents at Wardha. Likewise the husband used to visit the wife and the children at Bombay.
4. The relations between the parties by this time had become strained and the last straw that broke the camels back was when the husband addressed his letters, Exhibits B and C, to the wife. These letters were dated 28th September, 1978 and 22nd April, 1979. They however, were posted sometime in May 1979. By these letters the husband levelled serious allegations against the wife. They reflect a series of grievances nursed by the husband against the wife. I will have occasion
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