Maria Linda Rodrigues vs Ashley Joseph Rodrigues

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1992 Supreme(Bom) 245

IN THE HIGH COURT OF BOMBAY
V.P. Tipnis M.F. Saldanha, JJ.
Maria Linda Rodrigues ... Appellant.
Versus
Ashley Joseph Rodrigues ... Respondent.
Family Court Appeal No. 39 of 1992 in M.J. Petition No. 571 of 1988, decided on 28-4-1992.
Advocates appeared :
G.R. Rebello, for the appellant original petitioner.

Headnote:FOREIGN MARRIAGE ACT, 1969
       Section 18 (3) (a).
       See Special Marriage Act, 1954, Section 27.

       SPECIAL MARRIAGE ACT, 1954
       Section 27-Foreign Marriage Act, 1969, Section 18 (3) (a)-Petition of appellant for decree of nullity of her marriage solemnized in America-Petition dismissed on ground that she was not residing in India for minimum period of 3 years before petition as required in Section 18 (3) (a)-Condition of residence of three years-What it means.
       Held, it does not mean continuous or uninterrupted residence. Being away from India for short period will not make her disentitled- to file petition.
       It is a requirement of the section that for conferring jurisdiction on the Indian Court, the petitioner-wife should have been domiciled in India immediately before the marriage, which condition she satisfies. The difficulty that has arisen in this case centre around the fact that the petitioner had left India in December, 1986 and returned in August, 1987. The petition was filed on 29-4-1988. The learned trial Judge while considering the second requirement of residence in India for three years immediately preceding the presentation of the petition, has construed the requirement to mean 3 continuous years without a break. Excluding the period of her absence, he has held that the time would run from August, 1987, i. e. the date of her return, and that it would thereby mean that she was resident in India for only 8 months prior to the filing of the petition. This computation, in our considered view, is totally faulty. The petitioner had not emigrated from India which is established by the fact that she had gone out of the country only on a "tourist visa" and she did, in fact, return and has been permanently domiciled and resident in India all through. In matimonial statutes in this country, the law confers local jurisdiction on a Court if the party concerned is in fact resident there and not on the basis of casual short-term visits. It is true that in some parts of the world, like Maxico, it is permissible to obtain matrimonial reliefs if one is physically present for few hours after arrival and to leave by the next plane. The foreign Marriage Act does not approve of such frivolous methods and, therefore, confers jurisdiction if the party is resident fur a reasonably long time the minimum unit being 3 years. It would be quite unreasonable to hold, particularly while interpreting a matrimonial statute, that any break in the period of residence will be fatal to the maintainability of the petition, for in that event the section would have used the word "continuous" or "unbroken". In the absence of these words, it would only be correct to assume the legislative intent as having prescribed the test of ascertaining whether in the preceding 36 months the petitioner was resident in this country. The healthy principle applicable to a Court in these cases would be to adopt a benevolent approach as refusal to pass a decree in these circumstances would cause immense hardship to the aggrieved spouse who is before the Court. To this extent, therefore, the findings of the trial Judge are liable to be set aside. Admittedly, the Court was invested with the jurisdiction to grant the requisite relief and the Court ought not to have disqualified the petitioner on the hyper technical ground of jurisdiction.

JUDGMENT - M.F. SALDANHA, J.:---There exists a class of litigation where the role of the Judge requires to be redefined for it is expected of him in these situations to temper the approach to that of a father and not an impassioned adjudicator of law points alone. Matrimonial litigation has a ring of pathos about it, where relationships have soured, young people have been estranged and unfortunate children are being battled over. True it is that when such cases come before the Courts, the decision has to be governed by legal principles, but the approach of the Court must be a benevolent, understanding and helpful one, and if there is one field in which the time factor is crucial, this is it, We prefix our judgment with these observations because it has been the recurrent complaint in this and several other matters that if a more helpful attitude had been forthcoming from the presiding officer, the case could have been concluded at the trial Court in far less time.

2. The appellant before us, the original petitioner before the Family Court in M.J. Petition No. 571 of 1983, has assailed the correctness of the judgment and order dated 27-9-1991 whereby the Family Court has dismissed her petition. The appellant had prayed for a decree of nullity of her marriage solemnized at Houstan, Texas, U.S.A. on 27-4-1987. Alternatively, She has prayed for a decree of divorce on the ground of cruelty. The petition was originally filed before the City Civil Court at Bombay on 22-4-1988 under the provisions of the Special Marriage Act, 1954, which applied to the parties by virtue of the provisions of section 18 of the Foreign Marriage Act, 1969. The learned trial Judge, in the first instance, dismissed the petition on the ground that the Court was not vested with the requisite jurisdiction. He also held that as far as the question of nullity was concerned that the petitioner had failed to make out any case. As far as the question of cruelty was concerned, strangely enough, the learned trial Judge held that even though several instances stood established that they were not of the requisite gravity that would entitle the petitioner to the reliefs asked for by her. It is this judgment that is assailed before us.

3. Mr. Rebello, learned Counsel appearing on behalf of the appellant at the stage of admission of this appeal, advanced a strong plea to the Bench that since his client was a young lady who had undergone a lot of hardship and since according to him the order of the Family Court requires rectification on a point of law, that the appeal be taken up expeditiously. After hearing learning learned Counsel and being reasonably satisfied that this position was correct, we directed the appellant to serve the respondent forthwith and also satisfied us that the respondent has been duly served. From the record, we have reason to conclude that the respondent is not interested in any contest since the marriage has failed and the petitioner is not making any claims. It is relevant to record that even though the respondent at an initial stage before the trial Court filed a short written statement, that the M.J. Petition was pending and that if he did not take part in the proceedings that the Court would pass an ex parte order against him and in spite of this position, he just did not appear before that Court. It is under these circumstances that even though the respondent has chosen not to appear before us that we have heard the appeal on merits and are disposing it of.

4. Mr. Rebello has pointed out to us, in the first instance, that the interpretation of section 18(3)(a) of the Foreign Marriage Act, 1969 as set out in the impugned judgment is erroneous. The relevant section reads as follows :

'18(3) Nothing contained in this section shall authorise any Court-

(a) to make any decree of dissolution of marriage, except where-

(i) the parties to the marriage are domiciled in India at the time of the presentation of the petitioner or---

(ii) the petitione

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