Shri Shantaram Ragu Gaonkar vs Jayanti Shantaram Gaonkar

F. M. Reis, J

Heard Shri N. Sardessai, learned counsel appearing for the appellant and Shri Arun Bras De Sa, learned counsel appearing for the respondent. The above Second Appeal challenges the Judgments passed by the Courts below whereby the suit filed by the appellant for divorce on the ground of abandonment of the conjugal domicile for a period of more than three years stands dismissed.

The brief facts of the case are that the marriage between the appellant and the respondent was solemnized on 07.09.1994 and registered in the Civil Registration Office of Sanguem under No. 246/1994. The suit for divorce came to be filed by the appellant on 22.09.2003 bearing Matrimonial Petition No. 14/2003 before the learned Civil Judge, Senior Division, Quepem, on the ground of complete abandonment of conjugal domicile under Article 4(5) of the Law of Divorce. The respondent filed the written statement opposing the prayer for divorce and claiming inter-alia that the appellant started harassing the respondent and drove her away from the marital house. The learned Judge after recording of evidence and appreciating evidence on record by judgment and decree dated 28.07.2005 came to the conclusion that the atmosphere in the conjugal domicile was not conducive so as to make the respondent to stay comfortably and such circumstances compelled the respondent to leave the conjugal domicile and live with her parents.

Being aggrieved by the said judgment, the appellant preferred an appeal before the learned District Judge being Regular Civil appeal No. 98/2005 which came to be allowed by judgment and decree dated 08.06.2006 and the suit for divorce was decreed. Being aggrieved by the said judgment, the Second Appeal was preferred by the respondent being Second Appeal No. 85/2006 before this Court which came to be allowed by judgment dated 18.10.2010 and the judgment and decree passed by the Lower Appellate Court dated 08.06.2006 was set aside and the matter was remanded back to the learned District Judge to decide the appeal a fresh. By judgment and decree dated 01.12.2010, the learned District Judge on reappreciating the evidence on record dismissed the appeal preferred by the appellant and confirmed the judgment passed by the learned Trial Judge dated 28.07.2005. Being aggrieved by the said judgment, the appellant has preferred the present appeal.

Shri N. Sardessai, learned Counsel appearing for the appellant has assailed the impugned judgment on the ground that the learned Judge has wrongly appreciated the evidence on record and has come to the perverse finding to the effect that the appellant has failed to establish that there was total abandonment of the conjugal domicile. The learned Counsel has pointed out that there was sufficient material on record to come to such a conclusion that the Courts below have erroneously dismissed the suit filed by the appellant for divorce.

On the other hand, Shri Arun Bras De Sa, learned Counsel appearing for the respondent has supported the impugned judgment. The learned Counsel has pointed out that there is no perversity in the findings of the Courts below. The Courts below have rightly appreciated the evidence on record and have come to the conclusion that the respondent was drove away from the conjugal domicile as the atmosphere in the house was not conducive for healthy living. The learned Counsel further pointed out that the concurrent findings of fact arrived at by the Courts below cannot be interfered by this Court in the present Second Appeal.

Before hearing the above appeal, the parties were given an opportunity to try and settle their dispute but however no such conciliation came to be reported by the learned Counsels appearing for the respective parties.

I have heard the learned Counsel appearing for the appellant as well as the respondent. I have also perused the impugned judgment and the records and the pleadings of the parties. Both the Courts below have concurrently held that the appellant has failed to prove that there was total abandonment of conjugal domicile for a period of more than three years in order that the appellant would be entitled for divorce. The Courts below have considered each and every piece of evidence adduced by the parties to come to such findings. The learned Counsel appearing for the appellant has not pointed out any perversity in such findings arrived at by both the Courts below. The concurrent findings of fact arrived at by the Courts below cannot be interfered with in the present Second Appeal u/s 100 of the Civil Procedure Code. Hence, no substantial question of law arises in the appeal which requires consideration. Hence, the appeal stands dismissed. It is made clear that this order shall not affect the parties in any other proceedings to get their right adjudicated on any other ground in accordance with law.