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2024 Supreme(Bom) 859
IN THE HIGH COURT OF BOMBAY AT GOA
M.S. KARNIK, J.
Arshad Khalifa Alias Arshad Hussain, S/o. Shri Mohammed Hasham - Appellant
Versus
Gulzar Khalifa, D/o. Shri Arshad Khalifa Alias Arshad Hussain - Respondent
Second Appeal No. 29 of 2024
Decided On : 09-08-2024
For the Appellant : Mr. Shivan Desai with Ms. M. Viegas.
For the Respondent: Ms. Prachi Sawant.
IMPORTANT POINT
De facto separation for divorce under Article 4(8) must be freely consented by both parties, not merely established by duration.
Headnote:
Divorce - De Facto Separation - Article 4(8) of the Law of Divorce - The court interpreted 'freely consented' in the context of de facto separation, emphasizing that mere separation for ten years does not suffice for divorce unless it is established that such separation was mutually agreed upon.
Fact of the Case:
The husband filed for divorce citing cruelty and abandonment, claiming de facto separation for ten years. The wife countered that the husband had a relationship outside marriage, justifying her refusal to live with him.
Finding of the Court:
The court found that the husband failed to prove cruelty or abandonment by the wife and that the separation was not freely consented, as the wife was compelled to live separately due to the husband's actions.
Issues: The main issue was whether the husband could obtain a divorce under Article 4(8) based on the claim of de facto separation that was freely consented.
Ratio Decidendi: The court held that for a divorce under Article 4(8), it must be established that the de facto separation was freely consented by both parties, which was not proven in this case.
Result: The appeal is dismissed without any order for costs.
JUDGMENT :
M.S. Karnik, J.
1. Heard Mr Shivan Desai for the appellant and Ms Prachi Sawant for the respondent.
2. The appeal is taken up for hearing with the consent of both the parties. The parties rely upon the paper book of pleadings and notes of evidence. This appeal is admitted on the following substantial question of law :
(I) What is the meaning of ‘freely consented’ in the context of a de facto separation for the purpose of Article 4(8) of the Law of Divorce and in the facts and circumstances of the present case?
3. There appears to be a typographical mistake in the original cause title which records the name of the party respondent-wife as ‘D/o’ instead of ‘wife of’. This is obviously a typographical mistake.
4. The challenge in this appeal is to the Judgment and Decree dated 27.09.2022 of the Ad-hoc District Judge (FTC-II) at Margao, Goa partly allowing the appeal. The appellant is the husband and the respondent is the wife. The husband filed a Matrimonial Petition before the Senior Division, ‘A’ Court at Vasco-da-Gama, under Article 4(4), (5) and (8) of the Law of Divorce (Divorce Act of 1910, Decree of 3rd November 1910), in force in the territories of Goa, Daman and Diu w.e.f. 26.05.1911, on the grounds of ill-treatment, complete abandonment of the conjugal domicile for at least three years and de facto separation, freely consented, for ten consecutive years.
5. The marriage between the appellant and the respondent was an arranged marriage, registered against Entry No.320/1992 before the Civil Registrar of Quepem on 03.11.1992 and religiously solemnized on 26.12.1992 as per Muslim rites. Out of the said wedlock, the couple had a son named Sarfaraz, who at the time of filing the matrimonial petition was 22 years of age.
6. The reason for filing the matrimonial petition before the Trial Court for divorce according to the husband was that the wife continually picked quarrels with him, abused him and his family members, disturbed his family life and disrespected his parents. It is alleged that the wife used to leave the house in the morning and return only at night. The wife would find excuses to trouble the husband and his family members who were residing in the matrimonial home. On one occasion, when the wife did not return home till late at night, the husband lodged a missing persons report with the police. As a result of such verbal altercation and abuses, the husband’s father asked the husband to reside separately with the wife but she refused to do so. According to the husband, the wife refused to accompany him to the new matrimonial home at Katem, Baina. It is the husband’s case that despite showing concern for her, and calling upon her to reside with him at the new matrimonial home, the wife filed false cases against the husband and his family members, including a domestic violence case demanding a separate house for herself to reside and for a share in the property.
7. It is the husband’s case that the cause of action to file the Matrimonial Petition arose on 15.05.1993 when the wife refused to come to reside with him at the new matrimonial home. The husband claims that he is suffering mental torture as a result of constant cruelty and harassment meted out against him by the wife. The Matrimonial Petition for divorce therefore came to be filed.
8. Per contra, it is the case of the wife that the husband was residing with a woman named ‘A’, a relationship outside marriage. This was prior to their marriage. This fact was never disclosed to the wife or their family members prior to the marriage. It is for this reason that the wife claims that she is justified in refusing to leave the original matrimonial home and deciding not to live with the husband who was residing with the said ‘A’ and their children in the so-called new matrimonial home at Katem, Baina. It is further the case of the wife that the husband owns private vehicles registered in the name of the ‘A’ and her children, which he lets out on hire on rental basis
