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2013 Supreme(Bom) 1668
HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA & G.S. PATEL, JJ.
S.
Versus
Y.
Family Court Appeal No.29 of 2003
Decided On : 23-08-2013
For the Appellant:Uday P. Warunjikar, Advocate.
For the Respondent:Rajiv Patil, Senior Advocate i/by Dushyant Purekar, Advocates.
Headnote:Family Courts Act, 1984 - Section 11 - Proceedings in respect of matrimonial disputes.
Courts are competent to handle such cases in privacy as Section 11 of Act provides for in-camera hearing for keeping identity of parties secret. - All matrimonial disputes, and particularly in those where there are children involved, Courts should as a matter of inflexible practice, refer to parties only by initials and mask their true identities. It sometime s happens that not only our decisions, but even exchanges between Bar and Bench are widely reported in the media, very often for reasons that are merely salacious and have little or nothing to do with findings in law. The law permits Courts to handle such cases in privacy. There are provisions, for instance, for in camera hearings. Section 11 of the Family Courts Act, 1984, the purpose of such provisions is not far removed from the present objective.
These are all personal matters, often touching issues of profound intimacy and privacy. These should, remain between the parties. Courts must decide the cases according to law, but if Courts can do so without harming the personal sentiments, privacy and deep- seated beliefs of individuals, then that it is an endeavour Courts are equally duty-bound to make.
Hindu Marriage Act, 1955 - 13(1)(i-b) - Divorce on ground of desertion.
In absence any proof that wife was forcibly driven out of matrimonial home, husband entitled to divorce on ground of desertion. - On its own, and shorn of context, this evidence might again have been incapable of unequivocal assessment, but for the attendant circumstances. Beyond her bare word, there is no evidence that S ever attempted to resume cohabitation. Y filed his Petition for divorce on 18th December 1999. S received the summons on 12th May, 2000. The parties were referred to the marriage counsellor. On 18th August, 2000, the counsellor reported that reconciliation was not possible. On. 19th January, 2001, well over a year after the petition was filed, and a little over two years after S left the matrimonial home, she filed her written statement and included a counter- claim for restitution of conjugal rights. This is the first time that Court seen any positive statement by S in support of her case for restitution of conjugal rights. It comes far too late in the day to be of any assistance to S or to lend any weight to her testimony that she always sought reconciliation and restitution of conjugal rights. Against this, it is uncontroverted that the S has been away from both Y and, more importantly, her son from his infancy. Till the time she filed the counter-claim, there is nothing to indicate that she ever attempted to resume cohabitation.
There is also, importantly, the reference in written statement and counter-claim to her sister who, she says, attempted to bring about a rapprochement. This might have tilted the evidentiary balance, but for the fact that S did not, call her sister as a witness at all. No explanation is given, even now, as to why her sister could not be called to give evidence. An adverse inference is inescapable : that there were, in fact, no such attempts at reconciliation by S ’s sister, and, by necessary extension - since S makes this averment to support her contention that she has "always" been willing to resume cohabitation but has not been allowed to do so - that there were no such attempts by S at all. Even if the burden of proof does not lie on a party, a Court may draw an adverse inference if the party who relies on a "certain state of affairs (withholds) from the Court the best evidence that could throw light upon the issues in controversy.
There is no reliable evidence that S was driven from the matrimonial home; only that after 24th January 1997 she has not resided there. Beyond her word, there is no evidence of her making any attempt to resume cohabitation. At the time of the separation, the son was just seven months old. Let assume that what S says is true : that she was driven from the home and not permitted to return, despite every effort to do so. On her own admission, she is an educated working lady of some means. It would be reasonable to expect that, had her case been true, she would have filed a petition for restitution of conjugal rights. She did not. It was only after Y filed for divorce and the mandatory attempt at counselling and reconciliation had failed that she filed an action for restitution of conjugal rights in the form of a counter-claim. S ’s case proceeds on the basis that Y ’s conduct was such that she was driven from the matrimonial home; quite literally, for she alleges that it was he who threw her out by taking her to her parents’ residence and leaving her there. Throughout her pleadings and testimony, S has portrayed her husband in the darkest of hues, all culminating in her eviction at his hands from the matrimonial home. Were any of this to have credence, Court should have expected to find evidence of it in the way she conducted herself vis-a-vis Y . All Court have, instead, is a very belated attempt to mount a claim for restitution of conjugal rights. The conclusion is inescapa ble : S clearly preferred to stay away from the matrimonial home, her husband and his family even at the cost of being separated from her son. It is impossible to resist the conclusion of desertion by Y or to expect any greater evidence of the animus deserendi essential to establishing desertion.
In this case, however, this proposition is of no assistance to S . Mr. Patil, senior counsel for the respondent, Y, is justified in that this is not a case of the wife "merely separating", or doing so for a brief period; it is a case of complete abandonment of the matrimonial home and, more importantly, her infant son. The trial Court, he points out, correctly noted that S made no attempt to take her son with her; this is not even her case, and there is no evidence of it. There is also the matter of her much-delayed claim for restitution of conjugal rights (almost exactly two years after’ the divorce petition was filed), another circumstance noted by the trial Court in finding against the appellant. As far as S is concerned, there can be no doubt about either the fact of separation or her intention to cease cohabitation permanently. The record indicates that this permanent separation was without Y ’s consent and there is nothing to show that his conduct forced S out of the matrimonial home. The four elements required to establish desertion thus all exist : (a) the factum of separation; (b) the deserting spouse’s intention to cease cohabitation permanently, (c) Y ’s lack of consent; and (d) the absence of any evidence that his conduct forced S out of the matrimonial home.
G.S. Patel, J.
1. This is an appeal by the original Respondent before the Family Court, the wife, against the original Petitioner, the husband. The order under challenge is dated 31st October 2002 in Petition No.A-40 of 2000 filed by the husband for a decree of divorce on the grounds of cruelty and desertion, and for custody of their son, then a minor. Before the Family Court, there was also a counter-claim by the wife for restitution of conjugal rights.
2. We have consciously masked the parties’ names from the title of this judgment. During the course of hearings, we asked Learned Counsel for the parties whether there was any possibility of an amicable settlement. We were told that the wife did not wish to take a divorce, even by mutual consent; she saw this as a stigma. This is unfortunate and regrettable, but we must respect her views. That said, we felt it would be even more traumatic if, after hearing parties, we were to find for the husband against the wife, and uphold the decree of divorce. Our findings might well prey far more on the mind and emotions of the wife than a decree for divorce by mutual consent. That our orders and judgments are now very much in the public domain and are publicly accessible on the website of the High Court — a situation that cannot be changed to allow only selective matters to be uploaded — would only exacerbate the problem. Indeed, we are of the view that in all matrimonial disputes, and particularly in those where there are children involved, courts should as a matter of inflexible practice, refer to parties only by initials and mask their true identities. It sometimes happens that not only our decisions, but even exchanges between Bar and Bench are widely reported in the media, very often for reasons that are merely salacious and have little or nothing to do with findings in law. The law permits courts to handle such cases in privacy: there are provisions, for instance, for in camera hearings (Sn.11 of the Family Courts Act, 1984). The purpose of such provisions is not far removed from our present objective: these are all personal matters, often touching issues of profound intimacy and privacy. These should, we believe, remain between the parties. We must decide the cases that come before us according to law, but if we can do so without harming the personal sentiments, privacy and deep-seated beliefs of individuals, then that it is an endeavour we believe we are equally duty-bound to make. We have, therefore, taken this step of keeping their identities from public view. We believe this should be the norm in all family court matters that come before a court of record.
3. The parties were married on 28th November 1993 in Mumbai following Hindu Vedic Rites and Customs. For a short while thereafter, they lived together as man and wife at Bandra in Mumbai. They have a son, born on 20th May 1996.
4. Central to the husband’s case before the Family Court on the grounds of both cruelty and desertion is the matter of a separate residence, i.e., a matrimonial home away from the husband’s parents. Y claims that well before the marriage S had been told that they would have to stay in the same house as his aged parents (especially since his father had a heart condition) and his younger brother, then a student, and that S expressly agreed to this.
5. Following their marriage and a honeymoon in Ooty, the parties returned to Mumbai and lived together as man and wife at Y’s house in Bandra, which they shared with his parents. Both S and Y had full-time jobs, but had taken a month’s leave and spent that time together in Mumbai, resuming work in January 1994. Y was then a clerk with Corporation Bank while S worked with the Life Insurance Corporation. They would both leave in the morning, S an hour after Y, returning home only late in the evening.
6. Y’s allegations of cruelty are, broadly, four: first, that S refused to assist her mother-in-law in household chores; second, that she did not con
