2003(1) ALL MR 1156
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.C. DAGA AND J.P. DEVADHAR, JJ.

Mrs. Shilpa Shashikant Bugde Vs. Shashikant Vishnupant Bugde

Family Court Appeal No.1 of 2002

24th October, 2002

Petitioner Counsel: Shri. D.S. MHAISPURKAR
Respondent Counsel: Smt. ARTI P. BHIDE

(A) Family Courts Act (1984), S.20 - Civil P.C. (1908), O.6, R.14 - Pleadings - Matrimonial matters - Some latitude with respect to law of pleadings - Can be tolerated by family Courts especially when representation by Counsel or Advocate is optional. (Para 5)

(B) Hindu Marriage Act (1955), S.13 - Divorce on ground of desertion - Permanent alimony - Petition for divorce filed by husband on ground of desertion of his wife for more than 2 years - Decree granted in favour of husband - Wife seeking permanent alimony - Wife economically independent with good monthly income - Her take home salary Rs. 9,000/-, P.M. - Wife not entitled to permanent alimony.

JUDGMENT

V.C. DAGA, J. :- Heard rival contentions. Perused record and proceedings.

2. This appeal is directed against the judgment and decree passed by the Family Court, Pune in Petition A No.656 of 1999 dated 28.10.2001, dissolving marriage under section 13 of the Hindu Marriage Act, 1955. The appellant herein (husband) had filed the petition for divorce against the respondent (wife) on the allegation that she practised cruelty and deserted him and that the marriage has irretrievably broken down for a period of 21 years.

3. On being noticed, the respondent appeared and filed her written statement alleging therein that the Appellant (husband) has developed illicit relationship with one Mrs. Arole and also prayed for decree of divorce on the ground of adultery by setting up counter claim.

4. The Family Court after examining pleadings of the parties framed issues relevant to the pleadings and put the petition for trial. The husband entered into the witness box, whereas; the respondent-wife prayed for adjournment. Her request for adjournment was rejected by the Family Court with the result she could not lead any evidence. The Family Court after hearing the parties was pleased to grant decree of divorce holding that the respondent (wife) has deserted the husband for continuous period of 2 years before presenting the petition for divorce. The Court below also recorded a finding that the marriage between the parties has irretrievably broken down. The Family Court was pleased to grant divorce for the reasons recorded in its judgment on the ground of desertion. So far as ground of cruelty pleaded by the Appellant (husband) is concerned, negative finding was recorded by the Family Court. This judgment and decree passed by the Family Court is a subject matter of challenge in this appeal.

5. Having heard the parties, if one turns to the written statement filed by the respondent (wife), then it would be clear that she was also seeking decree of divorce on the ground of cruelty alleged to have been practised by the Appellant (husband). As a matter of fact, the trial Court was not justified in refusing to take into account her written statement and counter claim merely because it was not signed by the wife, though it was verified by her. Some latitude with respect to law of pleadings could have been tolerated by the Family Court, especially, when the representation by Counsel or Advocate is optional. Apart from this, exclusion of written statement from consideration suffers from contradiction. If at all the Court below was of the view that the written statement needed to be excluded from consideration then, in that event, no issues could have been framed by the Court below. Issues are framed only when material proposition of fact or law is affirmed by the one party and denied by the other. In other words, if the parties are at issue. The very fact that the issues were framed by the Court below goes to show that the trial Court did take into account the written statement and pleadings incorporated therein. In this view of the matter, exclusion of counter claim by the trial Court was not justified.

6. Be that as it may, if wife was seeking divorce on the ground of cruelty, we do not see any serious contest so far as necessity of dissolving the marriage by a decree of divorce is concerned, may be on the ground of desertion. In any event, considering the rival pleadings and the picture emerging on record with regard to the matrimony of the parties, decree for divorce has to follow. No useful purpose would be served by remanding this matter for fresh consideration. Looking to the rival pleadings decree for divorce is bound to follow, may be on some other ground. In the facts and circumstances of the case, we do not propose to interfere with the impugned judgment and decree. We accordingly affirm the same for the reasons stated therein.

7. The learned Counsel for the appellant (wife) lastly submitted that the appellant was entitled for grant of permanent alimony even though no such prayer was made to the Family Court. The said submission needs no consideration for more than one reason. Firstly, when no such prayer was made, it was not necessary for the Family Court to consider any request in this behalf. Apart from this, salary sheet of the appellant (wife) produced on record shows that she is drawing a gross salary of Rs. 10.726.44 as she is employed with M/s B.C. Components India Pvt. Ltd. It appears that she has taken some loan from Bank and Co-operative Society and also insured herself with L.I.C. for which monthly premium is being deducted from her salary. The deductions on account of these items cannot be taken into account for the purpose of deciding monthly earning of the appellant (wife). If these figures are excluded from consideration and added to the net income, then the take home salary of the wife (appellant) would be somewhere in the region of Rs.9,000/- p.m. In this view of the matter, she being economically independent with good monthly income, we do not see any reason to grant her permanent alimony.

In the result, the appeal is dismissed with no order as to costs.

C.C. expedited.

Appeal dismissed.