Point of Law: Family and Personal Law - Divorce case - Delay and Laches - In matrimonial cases where one tries to snap the bond and where the other tries to hang on to it, we must not merely look at the calendar to count the delay; we should rather look to all the attending circumstances. Here is a woman who has no means of living. The husband accuses her of having married him for his property. She denies that but agrees she is destitute - Doctrine of delay is almost anomalous to the Indian Constitutional scheme. But the doctrine of laches holds its place. The laches must be writ large on the person’s conduct. In a case like this, it must be nothing short a virtual abandonment of one’s right for an inordinate period. And in the meanwhile, an indefeasible right must have accrued to the adversary’s advantage. Neither is present here.

JUDGMENT :

Heard the learned counsel for the parties. Rule. Rule made returnable forthwith. The learned counsel appearing for the respondent no.1 waives service.

Introduction:

2. Two divorcees, in their mid-40s, marry each other. They live happily or normally for a few years. Then, the husband realises that the wife is not interested in him; she is interested in his property. The wife is past her prime to beget children, too. They frequently fight. So he thinks back and realises that when he ‘consented’ to marry, he suffered from a "grave lack of discretion of judgment”. And that grave lack of discretion of judgment is about the “essential matrimonial rights and duties” the wife and husband are expected to give and accept mutually. Given the personal laws that bind them, the husband takes recourse to Canon Law and gets the marriage annulled.

3. So, the questions are these: (a) What is a grave lack of discretion of judgment? (b) What are the essential matrimonial rights and duties between the two spouses?

Facts:

4. The petitioner is the wife; the respondent is the husband. Their marriage was solemnised and registered on 27.07.2012. By then, they each had a failed marriage. When they entered this matrimonial bond, they were in their mid-forties.

5. For about a year, the couple had been happy. Later, there arose certain differences, which, according to the respondent, are irreconcilable. So he complained to the Parish Priest, who tried to counsel both the wife and husband; he failed to bring about any reconciliation or rapprochement between them.

6. Under these circumstances, the husband applied to Ecclesiastical Tribunal for the annulment of the marriage. Then, the Tribunal called for the report from the Parish Priest, who reported to it about his failed efforts. Eventually, on the merits, the Tribunal annulled the marriage. It was on 14.10.2017.

7. Aggrieved, the wife approached the Metropolitan Tribunal of the Archdiocese of Bombay. Again, through an order dated 26.05.2018, the appellate Tribunal too confirmed the annulment. Later, with a delay of over one year, the petitioner has filed this Writ Petition. Meanwhile, this Court, on its administrative side, confirmed the decree of annulment through its proceedings, dated 14.06.2018.

8. In the above factual background, I have heard Shri Vivek Rodrigues, the learned counsel for the petitioner; and Shri John A. Lobo, the learned counsel for the respondent.

A Word of Appreciation:

9. Before I extract the respective counsel’s submissions ever so briefly, I may place on record a word of appreciation for both the learned counsel. They have produced both parties before me in the chamber and tried to persuade their respective clients to have an amicable settlement and to end their marital discord. Despite their best efforts, the counsel could not achieve their ends. So, they wanted the Court to rule on the merits.

Submissions: Petitioner:

10. Shri Rodrigues, to begin with, has submitted that the primary Tribunal has grossly violated the principles of natural justice. The petitioner-a destitute, deserted woman-has had no means of defending herself effectively, given her lack of legal knowledge and paucity of funds. He reminds me that the appeal was in Mumbai. At any rate, Shri Rodrigues has contended that unless there is an opportunity of cross-examination to the wife to expose her husband’s false claims, the Tribunal ought not to have annulled the marriage. About the inviolability of natural justice principles, he has drawn my attention to a judgment rendered by a Division Bench of this Court in Mrs. Elmas Fernandes v. State of Goa & Ors, WP No.351 of 2017, dated 15.10.2019.

11. On the merits, Shri Rodrigues has submitted that it is the wife that has been the victim of the matrimonial dispute. But she alone was made to pay the price for the husband's actions, in the end. As to the marital obligations (for example, begetting children) the wife has allegedly failed to discharge, Shri Rodriguez points ou