Richard Gonsalves vs Tressy Menezes

N.K. Patil, J.—1. This appeal by the appellant/husband is directed against the impugned judgment and decree dated 31/08/2012, passed in M.C. No. 368/2011, by the Judge, Family Court, Mangalore, wherein, the petition filed by him U/s. 10(1)(x) of the divorce Act has been dismissed.

It is the case of the appellant/husband that, appellant and respondent/wife are Indian Christian by religion. Their marriage was solemnized on 16/02/1995 at Valencia Church (St. Vincent Church), Mangalore. The said marriage was registered in the register maintained in the said Church. After the marriage, appellant took respondent to his house at Jalgaon Maharashtra and was looking after her with great love and affection as a dutiful husband. Out of their wedlock, respondent has delivered a male child by name Ritesh Gonsalves, aged about 15 years and studying in 10th standard at Mangalore. After his return to Mangalore, he was living with respondent in Ron Castle Valencia Mangalore. Respondent joined St. Agnes P.U College as a Librarian for the past 7 years and thereafter, she deliberately neglected him and mentally harassed him and failed to discharge her marital obligation of legally wedded wife. She took hostile attitude towards the appellant by not serving food etc., and he suffered both mentally and physically and thereby made his life miserable.

It is the further case of the appellant that, respondent has deserted him and not living with him for the past few years and whenever he visits respondent''s place she abuses him in most filthy language and also threatened that she is no more required to lead a life with him, she can live with anybody according to her will and pleasure. Owing to the vindictive attitude of the respondent, he is not in a position to continue the marital obligation and also he is not in a position to tolerate abusive and inhuman attitude of the respondent. Therefore, he sent notice to the respondent through his counsel and respondent has sent reply stating that he has contacted with incurable disease and she was not interested to live with him and not willing to continue marital life with him. He once again sent registered notice to the respondent on 10/03/2011 calling upon her to give consent for the dissolution of the marriage. To that, respondent has sent reply dated 16/04/2011 through her counsel falsely contending that he is having HIV and through her sister she has borne the expenses of all his treatment. She further falsely contended that he has taken money from her for his brother''s marriage and that he has sold the house and pocketed the money. The respondent also contended that she would agree for divorce by mutual consent if he pays half share of the sale proceedings pertaining to Kulshekar Chowki property. Due to the aggressive, posture and hostile attitude of the respondent there is no hope to him to continue the matrimonial relationship with the respondent nor there is any point in continuing the relationship with the respondent under the present circumstances. There are no chances of reunion and the petitioner has decided to put an end to their matrimonial relationship in the best interest of both the parties. Therefore, he has filed a petition before the Family Court U/s. 10(1)(x) of the divorce Act.

Upon service of notice of the main petition, respondent has appeared before the Court and she has been permitted to take assistance of the legal practitioner. The respondent in her objections to the main petition has inter alia contended that the petition is nothing but a bunch of lies put together just to file a false case against her. The appellant has committed so many matrimonial misdemeanours that she is entitled for divorce, if she seeks it and not the appellant. She has admitted that the marriage between her and the appellant was solemnized on 16/02/1995 at Valencia Church (St. Vincent Church) Mangalore as per the customs prevailing in Christian community. But she has denied all other allegations made in the petition. She has denied that the he was looking after her with great love and affection by providing all comforts as a dutiful husband. She has admitted that, out of the wedlock, she has delivered a male child by name Ritesh Gonsalves who is now aged 15 years and he is studying in 10th standard in Mangalore.

In 1998 when they were in Bombay her husband suffered from Herpes. When medical test was conducted on him, it was discovered that he is suffering HIV + due to his illicit extra marital relationship. Her sister rendered financial assistance for treatment and her entire provident fund amount was spent for treatment. Even though appellant suffered from AIDS, he would force her to perform sexual intercourse with him, she performed sexual intercourse by using condoms only to satisfy him. It is further contended by her that, in May 2000 they returned to Mangalore from Bombay. A house site was purchased to build a house in Kulshekar Chowki. At the time of buying house site the respondent''s sister pledged her gold to obtain a loan. The respondent got a job in St. Agnes College and all her salary was spent for building of the house and for her husband''s medicine. Even while building the house he fought with her brother regarding the rates.

It is further contended by her that, in September 2007, the house build at Kulshekar, Chowki which was in their joint name was sold by her husband by obtaining her signature and he has pocketed Rs. 7,25,000/- and she had half share a single pie was not given to her. Immediately after pocketing the money from the sale of Kulshekar, Chowki property, he issued a lawyer notice demanding divorce and threatened her that he would illegally dispossess her from the flat. On 4.8.2008, appellant has entered into the flat ie. Flat No. 401, Ron Castle when the respondent was away for work and has taken away two gold chain, two sets of gold bangles, one gold necklace, two sets gold ear rings, two tables, a wall clock, gas stove and gas cylinder, belonging to the respondent from the flat. Therefore, she had lodged a police compliant before Pandeshwar Women''s Police Station on 4.8.2008 and she has filed a suit before Civil Court in O.S. No. 662/2008 for the relief of injunction and for return of gold ornaments and movables belonging to her.

It is further contended that, appellant was seriously ill due to AIDS and he was admitted to Sneha Sadan where AIDS patients given treatment, feeling pity on his health condition, she did not pursue the case even though it is still pending before the Lok Adalath. The respondent has denied the averments made in para No. 3 of the petition and appellant has doubting personality and he would attribute adulterous relationship with anybody who would talk to her. He would suddenly come to her work place and used to shout and create a scene. Due to the excessive mental torture given by him, she developed ulcerative colitis. She denied the averments made in para Nos. 4 to 14 of the petition and contended that, due to his extra marital affairs he got contacted with AIDS. She has not deserted the appellant, but it is the appellant who kicked her out of the house and has stayed away from her since August 2007. Therefore, she prayed to dismiss the said petition with costs.

On the basis of the pleadings of the appellant/husband and objections of the respondent/wife, the Trial Court has raised three points for consideration.

Before the Trial Court, in order to prove his contention, respondent/husband has examined himself as PW1 and got marked five documents as per Exs.P1 to P5 and appellant/wife has got examined herself as RW1 and got marked eight documents as per Exs.R1 to Ex. R8.

The Trial Court, after hearing learned counsel for both the parties and after perusing the relevant materials available on file, has answered Point Nos. 1 and 2 in the negative and as per final order, allowed the petition after assigning cogent and valid reasons Being aggrieved by the impugned judgment and decree passed by the Trial Court, the appellant/husband has presented this appeal.

We have heard the learned counsel appearing for both parties and perused the grounds urged by the appellant in the memorandum of appeal.

It is the specific case of the appellant that, the Family Court ought to have accepted the case made out by the appellant and denied the statements made in the objection by the respondent, when he has proved the cruelty which has been meted out to him by the respondent, she used to say that he is suffering from HIV + and in holding that he has failed to prove that respondent has treated him with such cruelty. Further, the Family Court has failed to consider that the respondent has deserted him without any reason and she has refused to join him apart from, she has been making false allegations against him. But this aspect of the matter has not been considered or appreciated by the Family Court, and on the contrary, has proceeded to dismiss the petition after assigning reasons in para-14 of the judgment and the same cannot be sustained and is liable to be set aside. Therefore, he submitted that, appeal may be allowed and prayer sought by him in the petition may be granted.

As against this, learned counsel appearing for respondent, inter-alia, contended and substantiated the impugned judgment and decree passed by the Family Court is after due appreciation of the oral and documentary evidence available on file and in view of the admission made by the appellant in the cross examination that, he is affected with HIV + (AIDS) disease from 1997 and he has further admitted that his wife and son have no AIDS and when he had been to a party in Mumbai he had sexual relationship with one lady accident in the party and that is how he is affected with AIDS and he further admitted that he used to have sexual inter course with her by using condoms whenever she desired and that has been rightly accepted and considered by the Family Court. Inspite of making all efforts to lead life with him, he has deserted her and sold the said house in the year 2005 without her consent. Therefore, he submitted that the reasoning given by the Family Court is just and proper and after due appreciation of the oral and documentary evidence available on file and inspite of giving sufficient opportunity, appellant has not produced any credible oral or documentary evidence as such to satisfy the ingredients of Section 10 (1)(x) of Divorce Act and therefore, interference by this Court is not called for.

After considering the submissions made by learned counsel appearing for both the parties and after perusal of the impugned judgment, it emerges that, there is no dispute with regard to their marriage and from the marriage they got male child, aged about 15 years and prosecuting his studies. It is significant to note that, husband has admitted in his cross-examination that he is suffering from HIV+ AIDS since 1997 and his wife and son have no such disease and admitted that when he had been to a party in Mumbai he had sexual relationship with one lady accidentally, that is now he is affected with AIDS he has further admitted that he used to have sexual inter course with respondent by using condoms and his evidence clearly discloses that respondent lived with him even though she knew that he is suffering from AIDS and they lived together happily in Mangalore and this goes to show that she has not treated him with cruelty. Taking all these factors into consideration and after critical evaluation of the oral and documentary evidence and other material on record and considering the welfare of the appellant, the family Court has justified in recording the finding of fact that inspite of giving sufficient opportunity appellant has failed to make out any case to establish cruelty meted out by his wife as per the ingredients of the relevant provisions of the Act. After re-appreciation of the oral and documentary evidence available on file and the reasoning given by the Family Court, we do not find any error or illegality in the impugned judgment and decree passed by the Family Court, nor the appellant has made out any good grounds as such to entertain the relief sought in this appeal. Hence, the appeal filed by the appellant is dismissed as devoid of merits.