Lellis R.P. Ozorio vs Santan Anthony Gomes

R.K. Batta, J.—The respondent had filed a suit for divorce on grounds of adultery and abandonment of conjugal domicile for a period of more than three years. The ground of adultery was given up in the Trial Court itself and the only ground pressed into service for divorce was complete abandonment of conjugal domicile for a period of three years.

On behalf of the respondent, his Power of Attorney namely his mother was examined besides one more witness. The appellant examined herself in the proceedings. The Trial Judge came to the conclusion that the respondent had established that the appellant had abandoned conjugal domicile from the year 1987. He, therefore, decreed the suit and dissolved the marriage by granting divorce. This judgment is challenged by the appellant.

Learned Advocate Mr. F. Reis, appearing on behalf of the appellant, submitted before me that the marriage in question took place in Bombay on 1.11.1980; that initially the parties stayed at Bombay and in the year 1983 they shifted to Goa and started residing in the house of the mother of the appellant; that somewhere in the year 1984 the mother of the appellant gave Power of Attorney in favour of the respondent to manage her properties and taking advantage of the confidence reposed by the appellant''s mother, the respondent transferred properties of the mother of the appellant in the name of his own mother; thereafter three suits were filed by the mother of the respondent in respect of the said properties against the appellant, her mother and in which the respondent was also joined as a party. According to Mr. Reis, in the year 1987, the respondent left for Kuwait and since then the parties are staying separately. The main challenge which is advanced by learned Advocate for the appellant is that the respondent had failed to prove abandonment and the Trial Court inverted the burden of proof and wrongly cast the same on the appellant. In support of his submission he relied upon the decision in Shri Sebasteao Valente Fernandes v. Smt. Paulina Romana Fernandes, 1990 (2) GLT 342. He, therefore, contends that the decree in question is liable to be set aside as the respondent had failed to prove abandon- ment of conjugal domicile.

On the other hand, learned Advocate Mr. S. Sonak, submitted before me that the evidence of the appellant herself shows that she wants divorce and that in the year 1991 an advertisement was published in the newspaper regarding celebration of Silver Jubilee wedding of the appellant with her ex-husband. According to learned Advocate for the respondent, both these facts show the state of mind that the appellant does not want to stay at all with the respondent which, by itself, would amount to desertion. It was also submitted by him that reckless allegations have been made by the appellant in the written statement which amount to grievous injury and even though this ground was not pleaded, the Court should grant divorce on this count as well. Alternatively, it was submitted that the marriage has broken down and judicial separation to be ordered.

The respondent had alleged that the appellant had abandoned the conjugal domicile and on this count he had approached the Court to seek divorce. Therefore, as rightly pointed out by learned Advocate for the appellant the burden of proof to prove the said fact is on the respondent. It is no doubt true that the appellant had also taken the stand that it was the respondent who had deserted her but she did not seek any counter-relief of divorce. Therefore, the only issue which was required to be decided by the Trial Court was as to whether the appellant had deserted the respondent. The Trial Judge had addressed wrongly on this aspect when he said that the question for determination is whether the defendant / appellant had deserted the plaintiff/respondent or plaintiff had de- started the defendant. As I have already stated the point for determination was whether the defendant namely the appellant had deserted the respondent namely the plaintiff. In order to prove the same, the burden was on the respondent and I have absolutely no hesitation in coming to the conclusion that the respondent had miserably failed to discharge the said burden. It is rather surprising and shocking as to how the Trial Judge could come to the conclusion that the testimony of P.W.I namely Power of Attorney of the respondent remained unshaken. As I shall demonstrate hereinafter, the said conclusion cannot be sustained on the basis of cross- exanimation of P.W.I. It appears that either the Civil Judge S.D. had not gone through the cross-examination of P.W.I or if he had gone through the cross-examination he had thrown all canons of assessment of evidence to the winds in coming to the said conclusion. P.W.I had stated in her examination-in-chief that soon after the marriage the plaintiff and the defendant were staying in Bombay; thereafter they came to Goa and were residing at Durga, Chichinim; that the plaintiff and defendant resided in Chichinim for about two or three years; defendant left her matrimonial house sometime in the year 1987 and did not come back to stay with the plaintiff. According to her, the defendant never came back after she left the house of plaintiff. Thus she gave an impression in her chief that the plaintiff and defendant were residing in the house of the plaintiff which is in fact falsified by record. During her cross-examination, certain suggestions were put to her and she stated that she did not know about the same because plaintiff and defendant were residing separately in the house of the parents of the defendant. She has nowhere stated when defendant came to reside in the house of plaintiff. According to the defendant''s evidence plaintiff was residing in her mother''s house till 1987. P.W.I admitted that the plaintiff and defendant came to reside in Goa in the year 1983; during the time when the plaintiff was residing in the parents house of the defedant he was not coming to her house; that she had filed three civil suits and when those civil suits were filed the plaintiff and defendant were residing together. The said suits were filed during the years 1987 to 1989, this means that the case of the plaintiff No. 1 herself is when the said suits were filed the plaintiff and defendant were residing together. P.W.2 had also admitted in her cross-examination that in Goa plaintiff and defendant were mostly staying in the house of the parents of the defendant. Thus, it is clear from the evidence of P.W.I and P.W.2 that in Goa the plaintiff and defendant were staying in the house of the mother of the appellant namely the defendant and thereafter they did not stay together and the respondent left for Kuwait. From these circumstances, it cannot be concluded that the defendant namely the appellant had abandoned the conjugal domicile, but on the contrary, it stands proved that it was the respondent who had left the appellant. It may also be mentioned here that the respondent after gaining confidence of the mother of the appellant, had obtained Power of Attorney from her to administer her properties and transferred some of the properties belonging to the mother of the appellant in favour of his own mother. Thus, on the basis of the evidence led by the respondent, the respondent had failed to prove the ground of abandonment of conjugal domicile by the appellant. The evidence of the appellant to which my attention has been drawn by learned Advocate Mr. S. Sonak does not in any manner help in proving that it was the appellant who had abandoned the conjugal domicile. Mr. Sonak has drawn my attention to the fact that an advertisement had appeared regarding Silver Jubilee wedding of the appellant with her first husband in the year 1991. Admittedly, there was legal divorce between the appellant and her husband and it is after that only that she had married the respondent. According to the appellant, the said advertisement was put by her children. When the appellant had obtained divorce, the question of celebrating Silver Jubilee wedding would not arise in law, nor does it establish the stand taken by the respondent that she had abandoned him. The second piece of evidence to which my attention was drawn is that the appellant had herself stated that she is prepared to give divorce to the plaintiff in case all properties which are subject matter of the suits are returned back. First of all, this was a conditional statement made by her and secondly, this would, by itself, not establish that it amounts to abandonment of conjugal domicile by her. The cause of action as stated in the plaint arose in the year 1987 and subsequent state of mind of the appellant would not be very much relevant and even otherwise from the said two statements, it cannot be concluded that the appellant had abandoned the conjugal domicile and on the contrary the evidence on record is that it is the respondent who had left her. Accordingly, the findings of the Trial Court being contrary to the evidence on record cannot be sustained.

Learned Advocate Mr. Sonak had submitted that since wild allegations have been made by the appellant in the written statement, it amounts to grievous injury and the divorce can be granted on the said ground. First of all, the said ground was not taken and secondly reliance placed by learned Advocate Mr. Sonak on Jaishree Mohan Otavnekar v. Mohan Govind Otavnekar, 1987 M.L.J. 160, does not in any manner advance the cause of the respondent. In the said case, divorce had been sought on the ground of cruelty and it is in this context that the matter was dealt with in the said case. In the case before me no ground of cruelty or grievous injury had been taken and, as such, the contention of the Advocate for the respondent does not merit any consideration. Likewise, I do not find any merit in his alternative submission that judicial separation be ordered.

For the reasons mentioned above, the appeal is allowed and the impugned judgment and decree dated 11th February, 1994 is hereby set aside. Costs shall be borne by the respondent throughout.