K.K. Desai, J.
1. This is the defendant's appeal against the decree for divorce made against her on January 20, 1968, in Parsi Matrimonial Suit No. 33 of 1963. The suit was tried by Mr. Justice Kanta Wala with the assistance of Delegates under the Parsi Marriage and Divorce Act, 1936. The Delegates found that the defendant was guilty of constructive desertion of the plaintiff without lawful cause and against his wishes for a period of over three years. The learned Judge accordingly passed the above decree. In view of the decree, he dismissed the counterclaim made by the defendant for judicial separation. In view of the decree for divorce, he also found that there was no question of considering the alternative relief for judicial separation prayed for by the plaintiff. The question of the custody of children and permanent alimony was directed to stand over. The learned trudge ultimately, upon a subsequent hear-ing, ordered that the costs to defend the suit be paid by the plaintiff.
2. The plaintiffs case may be shortly summarised as follows:--
On July 1,1945, the parties were married according to the rites and ceremonies of the Parsee Zoroastrian religion at Poona. The defendant was then a divorcee. There ate four issues of the marriage; the eldest and the two youngest being daughters and the second child being a son named Hosang. The four children were, at the date of the suit, of the respective ages of 16, 14, 12 and 10 years. The plaintiff's married life with the defendant had been one of continuous misery and unhappiness and constant violent quarrels. The defendant was a sadist who indulged in perversity and cruelty. She loved to provoke the plaintiff to breaking point and to violence by constantly nagging, abusing, assaulting and humiliating the plaintiff on various pretexts, and on various occasions, without even the least care for the presence of the children, servants, friends and outsiders. Abuses and insults were hurled on the plaintiff by the defendant almost every day throughout their married life until the plaintiff by reason of the conduct of the defendant, was compelled to live apart from the defendant and cease to cohabit with the defendant as husband and wife.
The family had to change residences because of the temperament of the defendant The parties resided from June 1, 1954, in a bungalow at 26, Pali Hill at Bandra. As a result of the defendant's above conduct, on December 14, 1955, the plaintiff filed Suit No. 41 of 1955 against the defendant for judicial separation. The acts of cruelty which transpired upto that date were all mentioned in the plaint in that suit The defendant filed a counterclaim. On September 24, 1956, the suit and the counter-claim were allowed to be dismissed by consent The plaintiff had agreed to the dismissal of the suit at the intervention of friends and thereafter tried his very best to win over the defendant and make it possible for her to have and keep a happy home. Within a short time the defendant exhibited such conduct as made it clear that she had no intention to have a happy married life with the plaintiff. The defendant gave full vent to her wild temperament and committed further acts of assault and cruelty against the plaintiff. The plaintiff failed to bring any sense to the defendant and did not have a happy or peaceful family life. Between September 24, 1956 and October 1959, the plaintiff's married life was completely shattered by innumerable acts of gross cruelty and callousness on the part of the defendant. As a result of the defendant's conduct the plaintiff was compelled to live separately from the defendant and withdrew himself from the marital relations with the defendant. The plaintiff then felt that he could no longer stand the defendant's cruelty and even felt unsafe to reside in the same house with the defendant. The plaintiff was, in the aforesaid circumstances, compelled to leave his own house and stay with friends. In his Attorneys' letter dated October 20, 1959, the plaintiff recorded the facts of the incident which had occurred that morning. The facts disclosed were about the merciless assault by the-defendant on the plaintiff's head with a stone in her hand. A complaint had been lodged by the plaintiff with the Bandra Police Station. The plaintiff was treated at a hospital. When the plaintiff went to the house to fetch his clothes, a further scene was created by the defendant. She hurled a big stone at the plaintiff. She had attempted to prevent the plaintiff from driving away in his car and attempted to break the glasses (i.e. spectacles) which the plaintiff was wearing. It has recorded by this letter finally that the acts of the defendant had compelled the plaintiff to leave the matrimonial home. The plaintiff filed suit No. 45 of 1959 against the defendant for judicial separation on the ground of gross cruelty. The defendant filed a counterclaim for judicial separation. The suit was adjourned from session to session and reached hearing in April 1961. Prior tothat date, the defendant had tried to persuade and/or coerce the plaintiff to withdraw the suit. The plaintiff was suffering, a little before April 1961 from Typhoid and was in bed for a long time, and was prevailed upon for the sake of his four children--who were then minors, to withdraw the second suit The plaintiff was then assured by the defendant that she would not further harass, annoy or molest the plaintiff in any manner and 'would not interfere with the plaintiff living separately from the defendant,' The suit and the counter-claim were thus withdrawn in April 1961 by consent of the parties. In this connection in paragraph 10 of the plaint the plaintiff has stated that though by consenting to the withdrawal of the said suits he had tacitly condoned the various acts of cruelty, the same had become revived by reason of the facts and circumstances as set out in the subsequent paragraphs. The defendant had been guilty of further matrimonial offences and her conduct had revived hen previous acts of matrimonial offences. Though the suit was withdrawn, the plains tiff had been since October 1959, compel-led to withdraw and had withdrawn himself from matrimonial relations with the defendant and had lived apart against his own wishes and only preserved his marriage for the sake of his children. The plaintiff' had continued to reside apart from the defendant in view of her acta of gross cruelty and callous conduct. After: October 1959 having regard to the above conduct of the defendant, the plaintiff had except for short visits, resided separate from the defendant with other friends and outsiders. During the short visits that the plaintiff had at the residence at Pali Hill, the defendant did not lose any opportunity to further annoy, harass, humiliate and violently quarrel with the plaintiff. She had such quarrels with the plaintiff even at outside places. The defendant aa above created situations which would lead to brawls and fights with the plaintiff and provoked him by abuses, insults and actions to such an extent that the plaintiff was unable to keep control over himself, After Suit No. 45 of 1959 was withdrawn, the defendant made it a point to invent false accusations against the plaintiff and not only provoked quarrels with him at different times and places, but after February 1962 she continuously lodged complaints against the plaintiff and at the police station. False and frivolous complaints were thus lodged about 9 or 10 times within one week of March 1962. According to the plaintiff, these accusations and complaints were made because the plaintiff had withdrawn himself from the marital relations with the defendant. On the basis of the above allegations of facts the plaintiff, in paragraph 17 of the plaint.pleaded constructive desertion by the defendant in the following manner:--
'The plaintiff says and submits that in the circumstances aforesaid, it had become Impossible for the plaintiff to cohabit with and have marital relations with the defendant. By reason of the matrimonial offences aforesaid and/or grossly cruel and callous actions of the defendant, the plaintiff was compelled to stay separately from the defendant and continue to stay and withdraw himself from marital relations with the defendant and has thus ceased to cohabit with her since October 1959 till the date of the suit.'
The plaintiff charged the defendant of being guilty of constructively deserting the plaintiff without lawful cause and against his own wishes for a period of over 3 years.
3. The defendant by her written statement, and counterclaim generally denied the above allegation of cruelty made in the plaint. Her case was that it was the plaintiff's conduct that had made the defendant's married life with the plaintiff one of continuous misery, torture and unhappiness. The plaintiff had behaved in the most cruel, callous, sadistic and brutal manner towards the defendant in sub-paragraphs (a) to (n) of paragraph 4 of her written statement she gave various Incidents of the plaintiff's conduct, as acts of cruelty upto the date of the first suit. In sub-paragraphs (a) to (i) of paragraph 6 of the written 'statement she related further incidents as acts of gross cruelty of the plaintiff. She denied having been guilty of the conduct as a result whereof the plaintiff could not live with her. She denied that it was unsafe for the plaintiff to reside in the same house with her. She denied that in October 1959 the plaintiff withdrew himself from marital relations with her. According to her, after the summons in Suit No. 45 of 1959 was served on her, the plaintiff came back to the marital home and resumed cohabitation with the defendant. In that connection in paragraph 8 she mentioned that on November 4, 1959, the plaintiff had returned to the marital home. On November 7, 1959 upon his return from Ahmedabad the plaintiff had gone to the Pali Hill residence and informed the defendant that 'he had returned home and was going to stay with the defendant.' That night the plaintiff had marital relations with the defendant'. She also alleged that the parties had marital relations between November 9 and December 10, 1959 twice. She also gave similar incidents of marital relations between the parties in paragraphs 9 and 10 and the subsequent paragraph She recited the various acts of cruelty by the plaintiff in March 1960 in paragraphs 11 and 12 of the written statement. She alleged that she was coerced to withdrawher counter-claim in Suit No. 45 of 1959 by reason of certain conduct of the plaintiff. In connection with the withdrawal of the suit and the counter-claim in April 1061 she stated that the plaintiff has approached her for a reconciliation, pleading for mercy on the ground that he was about to lose his job in the Tata Mills where he was then employed. The defendant herself was entreated and advised by well-wishers not to proceed with the counterclaim as the plaintiff was willing to have the suit dismissed. This, according to her, was the reason why the suit and the counter-claim were, by consent of the parties dismissed in April 1961. She stated that she was not aware and did not admit that the plaintiff had then suffered from typhoid and had been in bed for a long time as alleged by him. She denied having given any assurances to the plaintiff that she would . not interfere with the plaintiff living separately from her. She stated that, on the contrary, the plaintiff assured her that he would live peacefully with her and that he would not assault and abuse her. The plaintiff assured her that he would give a separate car for her use and would find a suitable accommodation in the City limits. She denied that from October 1959 the plaintiff was compelled to withdraw or had withdrawn himself from marital relations with the defendant or had lived apart against his wishes or otherwise, or only preserved the marriage for the sake of the children. Her case was that the plaintiff continued to live and cohabit with her till March 13, 1962. In sub-paragraphs (1) to (u) of paragraph 19 of the written statement she recites various incidents being the -acts of cruelty by the plaintiff during the period January 1962 to July 1962. In paragraph 21 she repeated her denial that the plaintiff withdrew himself from the marital relations with her. She stated that cohabitation between the plaintiff and herself continued upto March 13, 1962. She further denied all the statements in the plaint relating to her conduct, or that the same had made it impossible for the plaintiff to cohabit with her or have any marital relations with her. She denied having been guilty of gross cruelty or callous actions or that for the alleged reasons the plaintiff was compelled to stay separately from her, or to continue to stay separately or withdrew himself from the marital relations with her. She denied that she was guilty of constructive desertion.
4. In the amended sub-paragraphs 25 fa) to (e) of the written statement and counter-claim, she referred to the plaintiff's relations with one Bakhtavar Elavia and to the various incidents of intimacy between the plaintiff and Bakhtavar Elavia. She counter-claimed on the ground of gross cruelty that she was entitled to a decree for judicial separation.In that connection in paragraph 28 she, in the manner the plaintiff had done in the plaint, stated that by reason of fresh acts of cruelty committed after the withdrawal and dismissal of counter-claim in Suit No. 45 of 1959, the previous matrimonial offences of the plaintiff, viz. the acts of cruelty committed by the plaintiff against the defendant previously had become revived, and that the defendant was entitled to rely upon the same for the purpose of the reliefs claimed by her.
5. In reply to the counter-claim theplaintiff generally denied having beenguilty of any acts of cruelty against thedefendant.On the above pleadings separate issueson (i) the written statement and (ii) thecounter-claim were framed by the learned Judge. The main issues arising on thewritten statement, being Issues Nos. 3 and4. were as follows:--
'Issue No. 3:--Whether the plaintiff has ceased to live and cohabit with the defendant on and from 1959 as alleged.....?
Issues No. 4:-- Whether the defendant to the suit is 'guilty of constructive desertion of the plaintiff.....?'
6. Upon appreciation of evidence and the summing up of the learned Judge, the Delegates answered the above issues in the affirmative. In the result, a decree for divorce was passed by the learned Judge. The main issue on the counter-claim, being Issue No. 1, was as follows:--
'Issue No. 1:-- Whether the plaintiff to the suit and defendant to the counterclaim has been guilty of such cruelty to the defendant to the suit and plaintiff to the counter-claim, or has behaved in such a way as to render it improper to compel her to live with the 'plaintiff to the suit and defendant to the counter-claim.'
The Delegates answered this issue by majority in the negative. As already stated, having regard to the findings made on the issues arising on the written statement, a decree for divorce having been passed, the learned Judge held that the defendant was not entitled to a decree for judicial separation and dismissed the counter-claim.
7. Mr. Banaji for the defendant has made the following contentions in this appeal:--
(1) The withdrawal by the plaintiff of his Suit No. 45 of 1959 in April 1961 amounted to an abandonment by the plaintiff of his right to rely upon the previous acts of cruelty committed by the defendant. These previous acts of cruelty could not be good cause of action for claim for divorce-on the ground of constructive desertion. The reconciliation which resulted into the withdrawal of the above suit in April 1961 brought the previous constructive desertion, if any, completely at an end. In law, the plaintiff lost all rightsto rely upon the previous alleged acts of cruelty. The result of the withdrawal of the previous suit was that it was not open to the plaintiff to contend that constructive desertion had commenced at any date prior to April 1961. This was in law the result of the withdrawal of the suit This being the true legal position, the trial Court should have himself, as on demurrer or in limine, held that constructive desertion had not existed for a period of three years Immediately prior to the date of the suit. The learned trial Judge should 'not have left the matter of the decision of Issues Nos. 3 and 4 arising on the written statement for the decision of the Delegates as questions of facts; he should have himself held that the result of withdrawal of Suit No. 45 of 1959 in April 1961 was that in law all the prior acts of cruelty and desertion had ceased to be available to the plaintiff and the suit had been filed prematurely and was, therefore, liable to be dismissed. The issues should have been answered in the above manner. In the alternative, the submission was that, having regard fo the above position in law, the learned trial Judge should have directed the Delegates that the plaintiff was not entitled to rely upon any acts of cruelty of the defendant prior to April 1961, He should have accordingly directed the Delegates to answer Issues Nos. 3 and 4 in the negative,
(2) The second contention was that the findings of the Delegates on these two Issues were wholly opposed to the evidence on record and, therefore perverse and contrary to law. No reasonable body of delegates could have made the findings. The Delegates have failed to take notice of overwhelming evidence led on behalf of the defendant and also brought out in the cross-examination of the plaintiff's witnesses, which went to prove that the plaintiff and the defendant cohabited together and had marital relation at the Pali Hill residence upto March 1962. This court, therefore, should take notice of that evidence and hold that the defendant was never guilty of any constructive desertion; and, on the contrary, the plaintiff and the defendant lived and cohabited together till March 1962.
(3) A similar third contention Was that there was overwhelming evidence tendered on behalf of the defendant about the plaintiff's acts of gross cruelty continuously upto the date of the institution of the counter-claim and thereafter. Having regard to that evidence, it was impossible for the Delegates to make a finding in the negative against the defendant on Issue No. 1 on the counter-claim, on the contrary, ' the finding of the Delegates was perverse and was such as no reasonable body of Delegates could have arrived at. For this reason that finding should be set aside and this court should substitute itsown finding in connection with the question of facts of gross cruelty by the plaintiff, and. make a decree for judicial separation in favour of the defendant,
8. In developing the first contention, reliance has been placed on the law regarding the facts necessary to be proved for-establishing constructive desertion, and the facts leading to the withdrawal of Suit No. 45 of 1959 in April 1961. Before referring to the authorities cited at the Bar it requires to be recorded that the contention was not raised as mere question of law in the trial Court. In issue, that the suit as Instituted was premature (as a result of the withdrawal of Suit No. 45 of 1959) was not raised. On the contrary, it appears from the summing up of the learned Judge that the contention on behalf of the plaintiff was that the previous acts of cruelty alleged in the previous two suits revived as a result of the conduct of the defendant subsequent to the withdrawal of Suit No. 45 of 1959. Reliance in that connection was placed on behalf of the plaintiff on the cases of Bertram v. Bertram (1950) PD 1 and Perry v. Perry (1952) PD 203. The. learned Judge referred to these two authorities and pointed out that resumption of cohabitation after desertion by one spouse must mean resuming a state where a matrimonial home is again set UP and that involves bilateral intention on the part of both spouses so to set up that home. He explained in short details the ratio of the above two decisions on the question of reconstitution of marital home by consent of parties. On behalf of the defendant, it appears to have been conceded that to bring the previous (constructive) desertion to an end the reconciliation between the parties must be by an agreement not only to live under the same roof, but to do so with intention to break the separation and to live together as husband and wife.
9. As pointed out by the learned Judge, the question that arose for decision by the Delegates was whether the reconciliation was 'with the intention of forgetting and remitting the wrong on condition that the spouse whose wrong is so condoned does not thenceforward commit any further matrimonial offence.' As pointed out by him, the law was that if a further matrimonial offence was committed, the condonation was cancelled and the old cause of complaint was revived. There appears to have been no dispute at the Bar that the position in law was as above summarised by the learned Judge in his summing up.
10. There was also no dispute between the parties as regards what constituted 'constructive desertion' in law. Both sides appear to have relied in that connection on the observations of the Supreme Court in the case of 'Bipinchandra v. Prahha-vati', : 1SCR838 . in his summing up the learned Judge had pointed out to the Delegates the law in this connection as expounded in the above cases. As had been observed in that case, for the offence of desertion, so far as the deserting spouse is concerned two essential conditions must be them namely, (i) the factum of separation, and (ii) the intention to bring cohabitation permanently to an end (animus deserendi) Desertion is a matter of inference to be drawn from the facts and circumstances of each case. If, in fact there has been a separation, the essential question always is whether the act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi coexist. if one spouse by his words and conduct compels the other spouse to leave the marital home, the former would be guilty of desertion, though it is the latter who has physically separated from the other and has been made to leave the matrimonial home. Once it is found that one of the spouses has been in desertion, the presumption is that the desertion has continued. in this connection in. paragraph 125 in Section 6, under heading 'Desertion' at page 195 in 'Rayden on Divorce', Tenth Edition, the following relevant passage appears:--
'..... In calculating the period ionwhich the respondent has deserted the petitioner without cause, and in considering whether such desertion has been con-tinous, no account shall be taken of any one period (not exceeding three months) during which the parties resumed cohabitation with a view to a reconciliation.....'
The period of three months is the result of legislative history to be found in the Matrimonial Causes Act, 1965, and the Matrimonial Causes Act, 1963. Paragraph 146 at page 217 deals where parties live under the same roof. It is stated:--
'..... There may be an animusdeserendi without a separation, as where the parties, though at arm's length, live as one household under the same roof. There would, however, be the factum of separation if in fact the parties lived as two households under the same roof, even where the spouses live, because of compulsion, in the same bedroom .....'
At paragraph 133 as regards constructive desertion the following appears:--
'..... If one spouse is forced bythe conduct of the other to leave home, it may be that the spouse responsible for the driving out is guilty of desertion.........'
At paragraph 551, the following appears
'..... There are many cases ofhusbands and wives, not insane, but either sick in mind or body, or so stupid, selfish or that they plainly do not appreciate onforesee the harm which they are doing to the other spouse, they being so self-centered that nothing would ever get the truth Into their heads; cruelty can be proved against such a person if his acts are sufficiently grave and really imperil the other spouse. ..... In such case .....Cruelty is found because the facts are such that, after making all allowances for his disabilities and for the temperament of bothparties, it must be held that the character and gravity of his acts are such as to amount to cruelty ..... Where desertionIs once established, but, the separation is enforced through other circumstances, the Intention to continue desertion must be proved by positive evidence or by negative Inference,'
Now, as already stated above, there is no dispute between the parties as regards the facts necessary to be proved to establish constructive desertion. There can be no: dispute that the parties living under the same roof may have separated and may have ceased to cohabit together and even in those circumstances can prove that there had been constructive desertion by one spouse as against the other,
11. The first question raised by Mr. Banaji was that the withdrawal of Suit No. 45 of 1959 had the legal consequence of ending the alleged constructive desertion by the defendant during the previous period. In that connection the argument was two-fold? (1) that in law the plaintiff could not rely upon the previous acts on the ground of estoppel and/or the principles to be found in Section 11 and Order 23, Rule 1 of the Code of Civil Procedure and (2) that the withdrawal was the result of such reconciliation as ended the previous separation and also the animus deserendi, the intention to bring cohabitation permanently to an end.
12. Towards proving the ground of estoppel, Mr, Banaji relied upon the decision in the case of Stevenson v. Stevenson, (1911) PD 191. He candidly admitted that the observations of the appeal Court in that case were overruled by the House of Lords in Cohen v. Cohen, 1940 AC 631. It appears to have been held in the case of Stevenson that the institution and prosecution of a petition for judicial separation precluded the petitioner from contending that the period of desertion was running during the time the petition was being maintained. The background of that finding appears to be that the Institution of the petition for judicial separation was a compulsion on the other spouse not fo reunite with the petitioner in the matrimonial home. The spouse so compelled Could not be held to be deserting such a petitioner. In the case of Cohens, Lord Justice Romer observed that 'the decision in Stevenson v. Stevensons Sh laying a general principle applicable to allcases in which a deserted spouse presents a petition for divorce or judicial separation was wrong and should be overruled. The question whether a deserting spouse has reasonable cause for not trying to bring the desertion to an end and the corresponding question whether desertion without cause has existed for the necessary period must always be questions of fact, and the determination must depend upon the circumstances of the particular case.'
13. Now, having regard to the above observations, there is nothing that is in the case of Stevenson on which the contention made by Mr. Banaji can be upheld. As regards the principles of res judicata contained in Section 11, Civil P, C., it must at once be stated that these principles can never be made applicable in a case which has not been heard and finally disposed of and/or adjudicated upon by a Court of competent jurisdiction. Further, to apply the principles contained in Section 11 as well as the provisions under Order 23, Rule 1 of Civil P, C, it would be absolutely essential that 'the subject-matter' of the two litigations in question 'must be the same. The relevant provision in sub-rule (3) of Order/ 23 runs as follows:--
'(3) Where the plaintiff withdraws from a suit, or abandons part of a claim without the permission referred to in sub-rule (2), he shall be liable ..... andshall be precluded from instituting anyfresh suit in respect of such subject-matter .....'
The phrase 'subject-matter' as contained in this Sub-rule (3) has caused certain difficulties of construction. But it has now been clarified that unless the relief claimed in the previous suit is the same and/or alike as the relief claimed in the subsequent suit, the subject-matters of the Wo litigations must be held to be different, (See Sh this connection the decision of the High Court of Madras in the case of Singa Reddy v..Subba Reddy ILR 39 Mad 987 : AIR 1917 Mad 512 and the observations of the Chief Justice of this Court in the case of Rakhmabai v. Mahadeo ILR 42 Bom 155: AIR 1917 Bom 10 .
14. There is no dispute between the parties that Suit No, 45 of 1959 was only for judicial separation; There is no dispute as regards the fact that the acts of cruelty alleged in that suit have been relied upon for the relief qf divorce claimed Sn the present suit, As relief of divorce was not claimed in the previous suit, we are unable to hold that the present suit Sg in respect of the subject-matter for which the previous suit had been instituted. We are unable to accept Mr. Banaji's contention that on the ground of estoppel the plaintiff was not entitled to rely upon the previous acts of crueltyand/or the constructive desertion which were alleged in the previous suit. In this connection reliance has been rightly placed on behalf of the plaintiff on the case of Fisher v. Fisher 1959 3 All ER 131. It is not necessary to refer to the facts in that case. So far as we are concerned, it has been held under Order 23, Rule 1 that when a suit for a different relief is filed, it cannot be held to be a suit for the same subject-matter.
15. In this connection it may be noticed that the cause of action in respect of desertion and/or constructive desertion remains inchoate till the date of the institution of the suit for divorce on that ground. As claim for divorce was not made in the previous suit, the cause of action and/or the bundle of facts on which reliance could be placed for relief of divorce on the ground of constructive desertion had remained inchoate and accordingly cannot be held to have been made the subject-matter of the previously instituted and withdrawn suit No. 45 of 1969.
16-17. In connection with the facts which led to the withdrawal of the previous suit, we have already referred to the statements made by the parties in the plaint and the written statement. The plaintiff's case was that he had withdrawn himself from the marital relations with the defendant as from October 1959. After that suit was filed the defendant tried to coerce the plaintiff to withdraw the suit in various manners. After the suit was adjourned from session to session but some time before the suit reached hearing in April 1961, he had suffered from typhoid and was in bed for a long time. The plaintiff was prevailed upon for the sake of his four children, who were then minors, to allow' the suit to be withdrawn. The plaintiff had been assured by the defendant that she would not harass him and would not Interfere with the plaintiffs living separately from her. Though the plaintiff had by withdrawal of the suit tacitly condoned the various acts of cruelty, the same had become revived by reason of the facts and circumstances set out on the paragraphs in the plaint after paragraph 10. (After going through the evidence of the plaintiff and the defendant his Lordship continued),
18. On the basis of these facts the contention was that the withdrawal of the suit was the result of a reconciliation and an agreement between the parties to continue in marital cohabitation with each other, without any separation, in the same home. The condonation and the reconciliation agreement had the effect of completely wiping out the defendant's acts of cruelty alleged by the plaintiff to have taken place before April 1961. The question of constructive desertion being an inference of law from the fact recited in the evidence, the learned Judge, according toMr. Banaji should have held as a matter of law that the plaintiff had ceased to be entitled to rely upon all those previous alleged acts of cruelty. It is difficult to: appreciate this submission that the question was of law.
19. The question as to whether the suit and the counter-claim had been allowed to be dismissed by consent of the parties for the reasons mentioned by the plaintiff in his evidence and/or for the reasons mentioned by the defendant in her evidence, cannot be a question of law. In, fact, as already stated above,, it appears to have been conceded before the learned Judge on behalf of the defendant that the true position in law was that the condonation and/or reinstatement agreed to between the parties may be on condition that the spouse whose wrong was condoned does not thenceforward commit any (further matrimonial offence; and that if a further matrimonial offence is committed, the condonation stands cancelled and the old cause of complaint could stand revived.The learned Judge explained this position in law to the Delegates and asked them to decide the question about the fact of the agreement of withdrawal of the suit and the counter-claim on the footing of the above being the position in law and upon an appreciation of evidence which he discussed in his summing up. The learned Judge specifically pointed out that it was the case of the wife that after the incident of October 20. 1959. the husband had resumed cohabitation and they had lived as husband and wife right upto about March 13, 1962. Then he explained the relevant incidents which took 'place in February, March, May, November and December 1960 and also in February and March 1962 as also in November and December 1959. He drew the attention of the Delegates to the entries regarding the household expenses incurred by the plaintiff and the payments made by the plaintiff in that connection to the defendant He referred the Delegates to the evidence which Appa Dalvi had given. Now, it is not possible to accept the contention that this question should have been decided by the learned Judge as a question of law. He rightly pointed out all relevant evidence and the relevant law in that connection to the Delegates. He rightly left the question of the effect of the withdrawal of the suit and the counter-claim to be decided by the Delegates. We are unable to accept the submission of Mr. Banaji that we should substitute our own finding on this question in the place of the finding thatthe Delegates must be assumed to have made. The findings which Mr. Banaji wants us to give may be stated as follows that there is evidence on record that the plaintiff ceased to reside separately from the defendant between May 1960 and, March 1962, The plaintiff infeet had agreed to condone all acts of cruelty by the defendant prior to April 1961. The plaintiff was having marital relations with the defendant from and after May 1960 continuously till the date of the dismissal of the suit in April 1961. That was the effect of the admission of the plaintiff in connection with his having been in the family house at the time when the Navjot ceremony was performed in December 1960; and of the book entries showing that the plaintiff was paying for the household expenses to the defendant, and of the documentary evidence in the shape of the letter (Exhibit a 2) and the letter along with which he had sent sweets to his children on his birthday. May 16, 1960; that the dismissal of the suit and the counter-claim was with an agreement that the plaintiff and defendant were to live peacefully as husband and wife.
20. Mr. Banaji has submitted that under Section 47 of the Parsi Marriage and Divorce Act, we have jurisdiction to substitute our own findings to the above effect in the place of the findings of the Delegates. That section runs as follows:
'Section 47. An appeal shall lie to the High Court from-- (a) the decision of any Court established under this Act, whether a Chief Matrimonial Court or District Matrimonial Court, on the ground'of the decision being contrary to some Jaw or usage having the force of law. or of a substantial error or defect in the procedure or investigation of the case which may have produced error or defect in the decision of the case upon the merits and on no other ground and .....'.
The submission of Mr. Banaji was that the finding about constructive desertion is always an inference of law from facts. The finding of the delegates on the above facts related to the finding that the defendant was guilty of constructive desertion. Therefore, the decision of the Delegates was contrary to law. The further submission of Mr. Banaji was that the finding of the Delegates was contrary to overwhelming evidence and was such as no reasonable body of Delegates could arrive at having regard to the evidence. The finding was, therefore, arrived at, by defective procedure and investigation of the case, which had produced an error and defect in the decision of the case upon the merits. Now, in connection with this submission it first requires to be noticed that the Parsi Marriage and Divorce Act is special law and enacts procedure for decision of matrimonial disputes. Including the question of divorce amongst the Parsis. Admittedly the Act clearly provides by Section 46 that in suits under this Act all questions of law and procedure shall be determined by the presiding Judge; but the decision on the facts shall be the decision of the majority ofthe delegates before whom the case is tried. Even as regards appeals to the High Court, jurisdiction has been circumscribed by the phrase 'on no other ground' in the last part of Sub-section (1) of Section 47. The word 'law' appears in both the above sections. Now, it is true that it is well settled that the findings of facts arrived at without any evidence at all on record may in law be treated as 'erroneous'. In a particular, exceptional case, it may be proved in an appeal before the High Court that the findings of the delegates had resulted from misconduct. Towards proving misconduct, reliance may be placed on the fact that the finding was impossible having regard to overwhelming evidence in favour of the party alleging misconduct, On such an argument . being made, the question of misconduct may be decided by this Court and consequently a conclusion may be arrived at that the findings of the delegates were Incorrect.
21. However, on the plain language of Sections 46 and 47, it is clear that all questions of facts are liable to be generally disposed of by the decision of the majority of the Delegates. In this connection, it is relevant to remember that in, respect of such decision there will be nothing on the record at any time by way of reasoning on the basis whereof the same is arrived at. The High Court, therefore, in an appeal before it, will not be in possession of any material on an analysis whereof it could make a finding that the reasoning for the decision was Incorrect. The scheme of the Act, which does not require the delegates to record the reasoning for their decision, indicates that the Legislature never desired that the Court of Appeal should substitute its own findings on questions of fact. The above scheme of Sections 46 and 47, we apprehend, is enacted by the Legislature at the behest of the Parsi community. This scheme is emphasised by the phrase 'on no other ground' as contained in the part of Sub-clause (a) of Section 47.
22. In this connection Mr. Banaji relied upon the fact that the provisions in Section 100 of the Code of Civil Procedure regarding second appeals are in language similar to the language in Section 47. He also relied upon the decision of the Supreme Court in the case of Sonavati v. Shri Ram, : 1SCR617 . The argument for the appellant in that case was that the finding of the first appellate Court that one Pritam Singh was in cultivatory possession in ,1359 Fasli was binding upon the High Court in second appeal. The Supreme Court negatived that contention on the ground that the appellate Judge had in arriving at his conclusion ignored very important evidence on record and on thataccount the conclusion was not binding on the High Court The effect of the above observations of the Supreme Court is that where the first appellate Court ignores important evidence on record in arriving at certain conclusions, its finding on question of fact may not be binding on the High Court. In making the above proposition the Supreme Court appears to have relied upon its finding that 'possession of a person in wrongful occupation cannot be deemed cultivatory possession.' in the aforesaid manner the Supreme Court considered the question as question of law and then made the above observations, it has been observed -for a number of years in diverse reports of cases as regards the true construction and effect of Section 100 that appeal does not lie on the ground of an erroneous finding of fact, A second appeal would lie if it could be shown that the first ap-pellate Court misdirected itself on a point of law in dealing with the evidence, or when it refused altogether to consider the material evidence on the erroneous ground that it was Immaterial. Having regard to the phrase 'on no other ground' as contained in Section 47 of the Act, it is difficult to hold that the decision of the delegates on the question of fact is liable to be set aside by the High Court in an appeal. It is difficult to hold that it could be proved in an appeal before the High Court that in arriving at their decision the delegates had failed to consider the material evidence on record. The law having not required the delegates to record the reasoning of their decision, it would be impossible for the High Court to make such a finding. For the same reason, it would, be impossible for the High Court to set aside any decision of the delegates on questions of fact on the ground of the same being perverse, or as being unreasonable. As already stated, unless a finding is made that the delegates misconducted themselves in arriving at their decision in respect of questions of fact, the High Court will not be justified in Interfering with such decision,
23. This being the true effect and construction of the scheme of Sections 46 and 47, we are unable to accept Mr. Banaji's submission as regards each of the three contentions made by him. Now, in connection with the above finding, it requires to be recorded that on the question of the delegates' findings being perverse, we permitted Mr. Banaji to rely upon the evidence of the plaintiff and his witnesses. He desired to prove by relying upon this evidence that the plaintiff has lived and cohabited with the defendant between May 1960 and March 1962. We did not think that it was permissible and refused to allow Mr, Banaji in that connection to read the evidence tender-ed on behalf of the defendant. Apparent-ly the question of law that constructive desertion had ended by the stay of the plaintiff at the residence at Pali Hill during the above period was always liable to be decided by inference to be drawn from the evidence of facts and incidents that transpired during the above period. The decision of that question was thus to be a decision on the facts and the same was, under Section 46, liable to be finally disposed of by the decision of the majority of the delegates. In that connection the important facts appearing in the evidence of the witnesses tendered on behalf of the parties, including the case regarding the plaintiffs stay at the Pali Hill residence and the celebration of Navjot of his two younger daughters in December 1960, the fact of the letter dated July 4, 1960. (Exhibit 12) the fact of the contents of Exhibits 11 and 12, the fact of the picnic at Ellora and Ajanta in which the plaintiff participated, the fact of the arrests of the plaintiff from the residence at Pali Hill twice in March 1962, and all other relevant facts were pointed out by the learned Judge in his summing up to the delegates. The learned Judge also pointed out the facts relating to the plaintiff's relations with Bakhtavar, and that the plaintiff had related in hi's evidence three incidents as acts of cruelty by the defendant having taken place between April 1961 and the date of the Institution of the suit. After all the relevant facts were thus pointed out, the delegates were at liberty to hold that there was sufficient evidence on record and the plaintiff had proved that his stay at the Pali Hill residence was not with intent to restore the matrimonial home with matrimonial relations- between the plaintiff and the defendant; that in spite of such stay and in spite of the plaintiff having resided under the same roof and having Incurred household expenses and having partaken in some celebrations and picnics, the animus deserendi and the separation had not come to an end. It was permissible for the delegates to hold that the subsequent conduct of the defendant was such as entitled the plaintiff to rely upon her previous acts of cruelty and to prove that the constructive desertion had commenced and continued from before three years prior to the date of the institution of the suit,
24-25. In connection with' the above finding, we have read the evidence tendered on behalf of the plaintiff in ex-tenso. (His Lordship went through the evidence and continued,)
26. Ordinarily in an appeal under the Act, this Court being not concerned, reference to the evidence of the parties on question of facts would be unnecessary. In this case, however, we have referred to the above statements of the plaintiffIn his evidence to connection with the second and the third contention that the delegates ignored the overwhelming evidence on record in arriving at their decisions on Issues Nos. 3 and 4 arising on the defences and on Issue No. 1 arising on the counter-claim. We are bound to record that it is impossible to hold that there was no evidence on record on the basis whereof the delegates could have made their findings in respect of these issues. It is also impossible to hold that the delegates did not attach importance to the evidence tendered on behalf of the defendant All the evidence, including what we have quoted above, was before the delegates. They were at liberty to accept such of the evidence tendered on behalf of the plaintiff as according to them was true and to reject such of the evidence as tendered on behalf of the defendant as according to them was un-true and unreliable. It was permissible for the delegates on evidence on record to hold that though the plaintiff had stayed at the Pali Hill residence between May 1960 and March 1962, the constructive desertion by the defendant of the plaintiff had continued. The plaintiff had not resumed the marital relations with the defendant The plaintiff had not reconciled himself to anything except to withdraw the prior Suit No. 45 of 1959 for the sake, of love and affection for his children. The delegates were entitled to hold that there was evidence that the defendant's conduct had continued to be such as the plaintiff could not continue his marital relations with her and that there was constructive desertion, on the part of the defendant, of the plaintiff. It is, difficult to hold that in that connection the delegates ignored the evidence of relationship between Bakhtavar and the plaintiff. It is difficult to hold that in arriving at their decision the delegates did not consider the correctness or otherwise of What is mentioned by Mr. Banaji as overwhelming evidence of cruelty by the plaintiff against the defendant. It is difficult to make a finding that the decision of the delegates is contrary to the overwhelming weight of documentary evidence on record. We are unable to accept Mr. Banaji's submission that we are entitled to substitute our own conclusions on questions of facts decided by the delegates. We are unable to accept his submission that the decision of the delegates is perverse or so unreasonable as ordinarily the delegates could not have arrived at
27. Under the circumstances, all the contentions made by Mr. Banaji are rejected. The appeal will accordingly stand dismissed.
28. The respondent-plaintiff will pay Rs. 4000/- towards costs of the appellant-defendant.
29. There Will be liberty to the Taxing Master to grant an amount exceeding Rs. 1000/-. If he so thinks fit, to the Attorneys of the respondent-plaintiff by stay of instructions.
30. Appeal dismissed.