R.K. MAHAJAN, J.
This is an appeal arising under Section 28 of the Family Courts Act filed by the wife appellant attacking the judgment and decree of Sri Surendra Pratap Mishra, Family Court Judge, Allahabad dated 10-3-1997 in case No. 293 of 1991 by virtue of which the divorce was granted to the respondent (wife) on the ground of marriage has been broken down and as there is no hope of revival as 14 years have passed and both husband and wife have deserted each other.
2. The brief facts which are culled out from the appeal as well as written statement and from the record are as follows:-
The parties are Sikh by faith. The petitioner-respondent is working as an auditor in the office of the Accountant General, Uttar Pradesh, Allahabad and now is aged about 51 years. The marriage of the petitioner-respondent was solemnized with the respondent-appellant on 31-5-1982 at Varanasi. The appellant-wife is an educated lady. She has done her B. Sc. , B. Ed. , M. A. and P. L. and she is employed as P. T. teacher in Durga Charan Das Girls Inter College, Sonarpura, Varanasi. She was enjoying the same status at the time of the marriage. It is alleged by the petitioner-respondent that he has given "saris" and clothes of worth Rs. 3,000/- and 12 tolas of gold to the respondent-appellant at the time of the marriage. There is no dispute that the marriage was consumated. The respondent-appellant after marriage remained with the petitioner-respondent till 5-7-1982 and then she left for Varanasi and on the petitioner-respondents willingness the respondent wife-appellant came to Allahabad in Sept. 1982 but left for Varanasi after two days despite objections. She also remained with the petitioner- respondent in Nov. 1982 for a month and in the last week of Dec. 1982 father of the respondent- appellant came to Allahabad and represented that there was a marriage in the family and she be sent. Despite letters and verbal requests the respondent-appellant has not turned up from Dec. 1982 to join the conjugal life and she has deserted the husband for more than seven years before the filing of the petitioner. There is also an allegation that the respondent-appellant is a teacher in some institution and has refused to live with the petitioner-respondent i. e. husband and perform the marital duty at Allahabad. In an oblique manner the petitioner-respondent alleges that the respondent-appellant has her own environment at Varanasi and does not want to come to Allahabad. It is also alleged that the respondent-appellant humiliated the petitioner-respondent by way of calling "white haired sikh" and it has amounted into cruelty.
The version of the respondent-appellant is of pure denial with the following explanations. In additional plea the respondent-appellant has stated that a house was taken at Preetam Nagar Colony at Allahabad so that they can live together. It is also stated by the respondent-appellant that her husband is under
the influence of his sister, who is unmarried, and dances to the tune of her command as well as his mother. According to the respondent-appellant that she has taken leave even in 1983 and has been residing with her husband at Allahabad. She has also been residing with her husband in holidays despite taunts and humiliation of her sister-in-law. The respondent-appellant has asserted that she has maintained the conjugal relations off and on and on account of exisgency of the service and lastly in June, 1989. Reference will also be made later on of two letters written by the wife-respondent-appellant to her father regarding treatment which she is receiving at her in-laws house and the letter written by her husband.
The Family Court relied upon the statements of the wife and husband and other material on record and came to the finding that the version of petitioner-respondent of cruelty has not been proved and as such it does not amount to humiliation. The learned Family Court Judge was of the view that they have deserted each other and the marriage has broken down for the last 14 years.
Feeling aggrieved the appellant has filed the present appeal.
3. The learned counsel for the appellant Shri T. P. Singh has submitted that the Family Court has committed mistake by holding that it is a case of mutual desertion. He has further submitted that the Family Court fell in error after holding that cruelty and desertion has not been proved, the decree of divorce could not have been granted. He further submitted that the appellant-respondent was doing job at Varanasi at the instance of husband. He further stated that despite reconciliation the petitioner- respondent did not agree to resume the marital relations.
4. Smt. Ramo Devi Gupta learned counsel for the petitioner-respondent submitted that the marriage is dead and it needs no oxygen now. It would be exercise in futility to rejuvenate the marriage. She further submitted that the attitude of respondent-appellant was not reasonable to adjust in the family. She has also taken as through the letters as referred to above, showing the conduct of a wife and husband.
5. This appeal raises some interesting questions -
(i) Normally the house of the husband is a marital home for wife but in the changing circumstances of the present society when the women are in service and they want to become independent in life if the wife and husband are in service and the distance of Varanasi and Allahabad is 125 Kms. only, is it not the
duty of husband and wife to make a mutual adjustment to maintain conjugal relations by visiting each other on week ends or as suits them by mutual adjustment and understanding.
(ii) Can a husband force the wife to live at Allahabad when she has failed, as per on record, to get herself transferred at Allahabad from Varanasi. The appellant wife filed an application for transfer which was not accepted by the competent authority. Would this circumstance be called the circumstance of desertion?
(iii) Is it not a duty of the husband to make a suitable adjustment without breaking the motherly ties and duties towards the mother and unmarried sister to live with his wife at separate house which the wife has taken at Preetam Nagar Colony at Allahabad ?
6. It is a matter of common knowledge and human experience that there is a conflict of ego in some cases between sister of husband and wife and even mother-in-laws and in that eventuality the husband's duty is to give due consideration to the wishes of the wife to lead a family life in a separate house. At the most he can visit them off and on and contribute financially so that the storm in the cup is over.
7. In this case a question also arises that the petition was filed in the year 1989 and thereafter on creation of Family Court it was transferred to Family Court in the year 1991 and before 1989 on this aspect there is not a single word either in the petition or in the statement of the petitioner-respondent regarding allegation of desertion etc. made in the petition.
8. We tried out best in the chambers for settlement of the dispute but failed. Appellant-respondent is still ready and willing to leave the job and to live separately with her husband (respondent-petitioner) in a flat taken by her. The husband told us in confidence that no question of living arises with her. It was also revealed during our meeting in Chamber that his sister has now left for Ludhiana. He is serving his mother, who is an old lady. The appellant-respondent is ready to lead the married life and serve the mother-in-law also.
9. We have scrutinised the statement of DW 1 Gurbachan Kaur, DW 2 namely Ms. Archana Ghosh, Principal of the school in which the appellant is working regarding proving of her application for leave etc. We have also scrutinised the statement of husband. There is no other oral evidence except this. The theme of their evidence is to support own case and rebut the other party evidence.
10. Reference would be made to two letters. We have perused the letter dated 10-6-1982 written to Sardar Tirath Singh by her daughter (respondent-appellant) and also another letter dated 29-12-1982 by her daughter to her father and mother. She has only expressed that she is happy except that some dispute arises on account of sister-in-law namely Rani. The Hindi translation of the letter is on record. She has also expressed in this letter that she is trying to adjust her best to the circumstances but some time she feels that she has been unnecessarily villified in character. In her letter dated 29-12-1982 she has also written that she would tell all things when she would come to her parents home. She has also expressed that she should be taken from this place as she fears every worst possible treatment i. e. , "papa JI AGAR AAP MUJHE YEHAN SE LEKAR NAHIN GAYE TO MAIN NAHIN LIKH SAKTI KI MERE SAATH YEHAN PAR KYA KUCH HO SAKATA HAI"
On 6-8-1982 the petitioner-respondent has written a letter to the respondent-appellant with love and affection.
11. In our considered view the judgment of the Family Court is not sustained and is liable to be set aside.
12. Section 23 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act of 1955) lays down that in any proceeding under Chapter V or Chapter VI, whether defended or not, if the court is satisfied. Section 23 of the Act of 1955 is quoted below with an advantage:-
"23. Duty of Court in passing decrees -
(1) In any proceeding under Chapter V or Chapter VI, whether defended or not, if the Court is satisfied that -
(a) any of the grounds for granting relief exists, and
(b) where the petitioner is founded on the ground specified in clause (a) of sub-section (1) of Section 27, the petitioner has not in any manner been accessory to or connived at or condoned the act of sexual intercourse referred to therein, or where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty; and
(c) when divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence; and
(d) the petition is not presented or prosecuted in collusion with the respondent; and
(e) there has not been any unnecessary or improper delay in instituting the proceeding; and
(f) there is no other legal ground why the relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly. . . . . . . . . . . . . "
A legal duty has been cast on the court that the court must be satisfied that there exists a real ground for divorce and who is a defaulting party. The concept of marriage is a sacred nuptial tie and it is not just like a toy to be broken at the will. 13. The husband is 51 years of age and wife is 50 years as revealed in the chambers and is also on record. In our society there is a stigma on a divorce and second marriage is not possible except in very rare cases. The marriage is solemnised for perpetuating the family lineage and procreating children and the marriage is also for companionship. Now at least in this case the marriage can be for companionship in the evening of life. There is no such ground like mutual desertion in the Hindu Marriage Act. The Family Court has given a wrong finding and committed an error of law that both the parties have deserted each other. It has been judicially doubted that there can be a mutual desertion. One party has to be held as guilty. In Rayden's Law and Practice in Divorce and Family Matters, 14th edition at page 253. It is observed that:
"the view that two spouses in respect of the same parting may each be guilty of desertion at the same time has, however, been judicially doubted, and expressly disapproved. The difficulty about the idea of mutual desertion is that it is not distinguishable easily, if at all, from divorce by a consensual separation for the statutory period. "
Under Section 13 of the Act of 1955 it is specifically laid down that either the husband or wife who has filed a petition for divorce must always specifically prove that there is desertion by presentation for statutory period at the time of filing the petition. There is no mention of mutual desertion.
14. Coming to another aspect whether there was any misunderstanding on the part of the wife to desert the husband and not result the marriage. It is not shown from the record that by way of letters or other evidence that petitioner-respondent has been visiting Varanasi for performing conjugal rites. It has been constant plea of the respondent-appellant that she was ready to live at Allahabad and she had taken a flat there. She is still ready to resume the cohibitation and it was never the intention to abandon cohibitation and it was husband who hesitated from his marital duties. As discussed earlier wife and husband should have met and an arrangement should have been made for a choice of matrimonial home when both of them were in service. It is for the parties to arrange their affair and spend their time together. In this case when the wife has taken a house at Preetam Nagar Colony, Allahabad there was no harm to arrange a temporary marital home there for spending week ends and also looking after the mother and sister. It was remarked on page 289 in Rayden, 14th Edition on Divorce that someone must have casting vote. In the circumstances in our view reasons dictate that husband should have accommodated the casting vote for the wife. It was also observed on page 289 in Rayden on Divorce that the parties should so arrange their affairs that they spend their time together and not apart, and where there is a difference of view, reason must govern. A wife does not succeed in establishing that a husband has not provided her with a reasonable home by showing that, having left him unreasonably, she has, by her independent action, found accommodation somewhere else which he is unwilling to accept.
In this case also, as remarked, husband must have yielded to the reasonable request of wife.
15. The plea of the husband that he was not aware that the wife is in service is not born out from the record and it appears that he is not coming with truth at all. It is also on record that the wife filed a suit for restitution of conjugal rights but reasonable offer to return to company cannot be brushed aside. In matrimonial life there has to be give and take and not stiffness and stubbornness. It is not explained that why the petitioner-respondent kept silent for seven years. If the version of the appellant is accepted for the argument sake that when she left the husband in the year 1984 it is unfortunate that delay has not been explained and the legislature in its wisdom has discouraged to file the petition late on the ground that the prime of the youth of the parties has been spent and there is no use to break the marriage.
16. It is very unfortunate that Family Court has taken six years to decide the case. This was not the intention of the legislature at all that matter should be decided after such a long time.
We have also perused the record of the case. Some time the cases has been adjourned on account of strike of lawyers and some time the Presiding Officer was on leave. The matter took eight years as it was filed in the year 1989 before the competent court and before it was transferred to the Family Court in
the year 1991. The Family Court should not behave in a manner in disposing of the matter as it has been disposed of very casually and in an indifferent attitude with regard to the mandate of legislature for the speedy disposal as warranted by the Family Court, 1984 as envisaged in its aims and objects. The aims and objects of the Family Court are as follows:-
"several associations of women, other organisations and individuals have urged, from time to time, that Family Courts be set up for the settlement of family disputes, where emphasis should be laid on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. The Law Commission in its 59th report (1974) had also stressed that in dealing with disputes concerning the family the court ought to adopt an approach redically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. The Code of Civil Procedure was amended in 1976 to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family. However, not much use has been made by the courts in adopting this conciliatory procedure and the courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails. The need was, therefore, felt, in the public interest, to establish Family Courts for speedy settlement of family disputes. "
Even the representation of lawyers under Section 13 of the Family Courts Act, 1984 has been prohibited as of right. Section 13 of the Family Courts Act is quoted with an advantage:-
"13. Right to legal representation- Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner:
Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae. "
Attention is also invited to Section 10 (3) of the Family Courts Act. Section 10 (3) of the Act is quoted with an advantage:-
"10 (3) - Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other. "
In order to expedite the proceedings so that prime life of the couple may not be waisted the Family Courts are duty bound to adopt its own procedure in the proceedings, otherwise the proceedings will go on for years together. It should be in consonance with fair hearing and procedure. The Court's duty extends even to put question to elicit truth and should show dynamic approach towards the achievement of this end.
17. Section 14 of the Family Courts Act is also quoted with an advantage:-
"14. Application of Indian Evidence Act, 1872-
A Family Court may receive as evidence any report, statement, documents information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872. "
All these provisions further shows that matters have to be settled in a simple and not in a complex manner as adopted in protracted trial of civil suit.
18. Family courts if grant opportunity to the parties to be represented by lawyers and it comes to the conclusion that some obstruction is being caused by non-availability of lawyers or otherwise. If some problems come to its notice the Family Courts can immediately cancel the "vakalatnama" and obey the mandate of legislature rather than prolonging the agony and waiting period of matrimonial disputes. The time spent cannot be regained or recalled and youth cannot be restored. So the court should also keep in mind also the settlement of the parties by negotiation.
19. It appears from the perusal of record that no serious statutory effort was made by the Family Judge, as required under the Family Courts Act as well as under Order XXXII Rule A C. P. C. For settlement of the dispute. A duty has been imposed under Section 9 of the Family Courts Act to make all possible endeavour which is at para materia with Order XXXIII Rule A CPC. T
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he Court must express its concern that the Family Courts should work in a spirit of dedication to settle the matter by negotiation and all possible methods of persuation to shat the marriage may be preserved. The court expresses its concern that it should not turn into an ordinary civil court as seen by us while sitting in this jurisdiction and dispose of the matter as expeditiously as possible and adjournments should be restricted. The proceedings must be held in camera and the advantage of provisions of Family Court Act be taken fully with respect to the association of social welfare agencies. The Court should keep in mind the provisions of Section 14 of the Family Courts Act regarding the applicability of Indian Evidence Act (sic) record the oral evidence. These provisions have been made to cut short the procedure. 20. We are afraid to agree with the submission of Smt. Ramo Devi Gupta that the marriage has become dead. If somebody who makes a marriage to be sick then he should not be given advantage. She has relied upon AIR 1995 SC 851 Ramesh Chandra v. Savitri. The Hon'ble Supreme Court while exercising power under Section 142 directed the dissolution of the marriage subject to transfer of the house in the name of wife after holding that the marriage has become dead. Similarly, it was done in two other cases reported in 1994 (1) SCC 337 (AIR 1994 SC 710) V. Bhagat v. D. Bhagat (Mrs.) and 1993 (4) SCC 232 Chandrakala Trivedi (Smt.) v. Dr. S. P. Trivedi. 21. Coming to the conduct of the husband we would like to emphasis that husband should not be allowed to take advantage of his wrong. The husband never made efforts to acede the reasonable wishes of the wife which is also sine qua non in the stability of the marriage. 22. We are of the considered view that approach of the Family Court in appreciating evidence and law is wrong in law and facts. 23. Therefore, we set aside the impugned judgment and decree and allow the present appeal with costs. 24. We hope and trust that still good sense will prevail on the husband to adopt attitude of forgiveness and forgetness. We hope that GOD will bless them. It is never to be too late to start a married life.