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Smt. Neera Vs. Kishan Swarup - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 390 of 1973
Judge
Reported inAIR1975All337
ActsHindu Marriage Act, 1955 - Sections 9, 10, 13 and 23(2)
AppellantSmt. Neera
RespondentKishan Swarup
Appellant AdvocateK.C. Saxena, Adv.
Respondent AdvocateVishnu Sahai, ;B. Dayal and ;S.P. Singh Raghav, Advs.
DispositionAppeal dismissed
Excerpt:
.....to the court unless three years have passed since the date of marriage, or leave for presenting a petition within that time has been obtained on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent. 1 to her father she did not complain that she had been falsely accused of being unchaste, and that the said accusation had caused a reasonable apprehension in her mind that it would be harmful or injurious for her to live with the respondent. in the case in hand, though the appellant had been successful in proving that the respondent had treated her with cruelty by accusing her of unchastity, she has failed to establish that the respondent had treated her with such cruelty as to cause a reasonable..........correct.5. maligning the wife by the husband as unchaste may in certain circumstances amount to cruelty. cruelty as envisaged in section 13(1a) as amended by u. p. act xiii of 1962, may be physical or psychological. the question of cruelty is, however, to be judged on the basis of; the evidence on the record and the totality of the circumstances of the case. the cultural background of the spouses, their temperament, social status and upbringing, educational acquirements, their behaviour with each other in daily life, their colloquialism, and the usual and normal way of conversation with each other and their norms and conceptions have to be kept in view in determining as to whether the accusation of unchastity would, on the facts proved and in the circumstances of the case, amount to.....
Judgment:

T.S. Misra, J.

1. This is an appeal by a young wife against her husband seeking divorce and in the alternative judicial separation. The marriage of the appellant with the respondent took place on 13th May, 1969 in accordance with Hindu Law and custom. She came to reside with the respondent at his house in village Bhadora on 14th May, 1969 and lived with him till 19th May, 1969 when she returned to her father's place. Thereafter she again lived with her husband from 12th June, 1969 to 22nd July, 1969. Again, she lived with him for some time till 22nd November, 1969. She went to Anupshahr to attend the marriage of the son of Bishan Swarup and returned to her father's place on 13th May, 1969 (?) and since then she has been residing with her father. Her allegations against the respondent were that he ill-treated her, called her ugly and black and also accused her of unchastity. He caused physical injuries to her, gave her beating off and on and once sprinkled kerosene oil on her and tried to burn her. She also alleged that the respondent had illicit connections with other ladies and when she objected to the same she was mercilessly beaten and abused and called unchaste and was threatened that her nose would be chopped off and she would be killed. Persistent and repeated ill-treatment by the respondent made her believe that if she would live with him she would be killed. The cruel behaviour of the respondent inflicting physical and mental torture on her has left an impact on her mind that it would be injurious and harmful to her if she would live with him as his wife. She, therefore, filed a petition under Sections 10 and 13 of the Hindu Marriage Act for the aforementioned reliefs. The petition was contested by the respondent denying the allegations made against him.

2. The trial court, on a consideration of the evidence on the record, recorded a finding that the petitioner had failed to prove that the respondent was living in adultery. It, however, held that the false accusation against the chastity of the petitioner amounted to cruelty and that the evidence on the record established that the petitioner was treated with cruelty by the respondent, that she was beaten and was threatened and that she was called unchaste. It, therefore, recorded a finding that the respondent treated the petitioner with cruelty both physical and mental. The accusation of unchastity amounted to mental cruelty and it gave reasonable apprehension in the mind of the petitioner that it would be quite harmful and injurious for her to live with the respondent. On these findings the trial court granted a decree of divorce to the petitioner. Against that decision an appeal was preferred by the present respondent Sri Krishna Swarup. The learned District Judge, who heard the appeal, concurred with the trial court that it was not proved that the husband, who is the respondent before me lived in adultery. As a consequence of this finding, the learned District Judge further held that Krishan Swarup had, therefore, no occasion for subjecting his wife to any mental or physical torture. Disagreeing with the trial court he, therefore, held that in the instant case the wife was not ill-treated by the husband. Dealing with the grievance that the respondent had falsely accused his wife of unchastity the learned District Judge held that he did not accuse her of unchastity. The learned District Judge, therefore, allowed the appeal and set aside the decree passed by the trial court. Aggrieved, the petitioner has come up to this Court in second appeal.

3. For the appellant it was urged that the appellate court below had erred in holding that she was not physically and mentally tortured by the respondent and that the respondent had not accused her of unchastity. It was submitted that the finding of the appellate court below was perverse and at any rate it was based on misconstruction of the evidence on record. It was urged that the grievance that the respondent had accused the appellant of unchastity was proved by oral and documentary evidence on the record. The appellant had deposed on oath that she was repeatedly maligned as unchaste by the respondent. Her statement, it was urged, found support from a letter Ex. 5 dated 2nd August, 1969 sent by the appellant's father to Sunder Lal as also from Ex. 1 which is a notice given by the respondent to the father of the appellant on 24th November, 1969. I was taken through the evidence on the record. The appellant had asserted in her petition that she was repeatedly accused of being unchaste by the respondent and was tortured by him. She was very often beaten, was called ugly and black and was also threatened that her nose would be chopped off and she would be killed. She had also alleged that the respondent had once sprinkled kerosene oil on her body and tried to burn her but luckily she was saved. She examined herself in the case to support her averments made in the petition. It appears from Ex. 5 that the appellant was maligned as unchaste. Even in the notice Ex. 1 an accusation was made that the appellant was unchaste. This notice was given by the respondent to the father of the appellant informing him that the respondent would reach the house of the addressee to fetch the appellant and that if she would not be sent with him he would take legal action. The contents of that notice are typed in Hindi letters. At the foot of the notice it is stated that initial letters in line 12 thereof were scored. Similarly one word in line 7 was scored. It is signed by the respondent. A sentence was, however, written in that notice in ink. That sentence is very material and needs to be reproduced. It reads:

'Halan ki uske badchalan hote huye bhi mai usko lane ko tayyar hun.'

That sentence was, however, scored out by drawing a straight line over it. But despite that it can be very easily read out. This document was admitted by the respondent. It is not the case of the respondent that the aforesaid sentence written in ink in the said letter was not added by him. The trial court while coming to the conclusion that the respondent had accused the appellant of being unchaste relied on this document as well. The learned District Judge, who heard the appeal, however, did not place reliance on that sentence in Ex. 1. The learned District Judge observed :

'The hand-written contents read that in spite of her bad character (chal chalan) he was prepared to bring her along with him. This hand-written portion appears to have been scored out by drawing a straight line from one end to the other. Phrase 'chal chalan' without any reference to the context can also mean misbehaviour and not necessarily unchastity. At any rate since this hand-written portion was struck off none is entitled to read it and much less base a finding upon it. Possibility was not ruled! out that under extreme despair, worry and anxiety this sentence was carelessly written and on a second thought its consequences were assessed and at the earliest opportunity, therefore, struck off. Such casual and unmindful remark should not forever mutilate the sacremental ties with which the couple was bound as life partners.

4. The learned District Judge has obviously misread the hand-written portion of the said notice Ex. 1. The respondent had not used the word 'chal chalan' but had used the word 'badchalan'. He bad written that despite her being un-chaste he was prepared to take her along with him. The word 'badchalan' does not mean misbehaviour. It connotes unchastity. It is true that the hand-written sentence was scored out by drawing a straight line from one end to the other but it was not so scored out as not to be deciphered. The sentence was meant to be read. Otherwise it would either have not been written or it would have been scored in such a way that no one could despite efforts made in that behalf read it. It is a strong circumstance corroborative of the fact that the respondent maligned the appellant of being unchaste. There is truth in the statement of the appellant that the respondent did accuse her of being unchaste. There is no evidence on the record that the said accusation was correct.

5. Maligning the wife by the husband as unchaste may in certain circumstances amount to cruelty. Cruelty as envisaged in Section 13(1a) as amended by U. P. Act XIII of 1962, may be physical or psychological. The question of cruelty is, however, to be judged on the basis of; the evidence on the record and the totality of the circumstances of the case. The cultural background of the spouses, their temperament, social status and upbringing, educational acquirements, their behaviour with each other in daily life, their colloquialism, and the usual and normal way of conversation with each other and their norms and conceptions have to be kept in view in determining as to whether the accusation of unchastity would, on the facts proved and in the circumstances of the case, amount to cruelty within the meaning of Section 13(la) of the Act. Cruelty need not be physical violence inflicted by one spouse on the other, but it may also be in his conduct, demeanour and treatment. Section 13 is not thus restricted to acts of physical violence, but it also covers cases of such mental torture as would cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious to the petitioner to live with the other party. A solitary incident of cruelty or an isolated lapse of tongue would, however, not be sufficient to bring the case within the ambit of Section 13(1a) of the Act. The respondent must be shown to have committed the imputed act of cruelty 'persistently or repeatedly' and the nature, degree and extent of cruelty was such as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the other party.

6. Divorce is a very serious matter which affects not only the lives of the two individuals but which has a great social bearing. It is in the interest of the community that the institution of marriage is upheld. A Hindu marriage is not merely a sacrament, but like all marriages, it is also a status, and as such it is a matter of concern of the community as well as the parties. The right to abandon the marital alliance is, therefore, hedged with positive restrictions and conditions. The husband and wife are not free to terminate their marriage at pleasure. Divorce may not be the panacea for all matrimonial ills, but, in certain circumstances that may be the only remedy. A Hindu marriage may now be dissolved either on the ground of 'fault' of the respondent or on the 'break down' thereof. Adultery is an instance in support of 'fault' concept; the 'breakdown' theory is founded on the idea of individual happiness. Failure of marriage with the resultant unhappiness between the parties are the factors governing the 'breakdown' theory. Besides these two theories the marriage may also be put an end to on the ground of insanity or other debility like virulent and incurable form of leprosy. The Hindu Marriage Act refers to both 'fault' and 'breakdown' theories. Cruelty is one of the grounds which may bring about a break down of marriage, but what should be the nature, degree and extent of cruelty which would make it actionable under Section 13(1a) of the Act, would depend on the capacity of the petitioner for endurance. The test, therefore, would not be whether the respondent is cruel, but whether the conduct appears as cruel to the other spouse. In other words, what is relevant is the impact or effect of the alleged conduct on the petitioner. Cruelty must be of such a nature and degree as to cause a reasonable apprehension in the mind of the petitioner that it would be injurious or harmful to the petitioner to live with the respondent. Similarly, under Section 9 of the Act the claim for restitution of conjugal rights may be resisted on the ground of 'cruelty' of such a nature and degree. Section 18 of the Hindu Adoptions and Maintenance Act, 1956 enables the wife to secure separate residence with maintenance on the establishment of 'cruelty' inflicted by the husband. Divorce may be a protective I weapon for the aggrieved spouse; it should not be used to secure an opportunity for sex relations. Sub-section (2) of Section 23 of the Hindu Marriage Act, hence makes it a primary duty of the Court to ensure that the marriage tie is not broken and make every effort in the first instance to bring about a reconciliation between the parties before proceeding to grant any relief under the Act. The legal system in England and Wales has also laid great stress on marital reconciliation. Statutory provisions were included in the Divorce Reforms Act, 1969 with a view to facilitating reconciliation in matrimonial causes. That Act has now been repealed and re-enacted by the Matrimonial Causes Act, 1973 which also makes provisions for reconciliation. The Law Commission in England commented that the objectives of divorce law in that country were:--

(i) to buttress, rather than to undermine the stability of marriage; and

(ii) when, regrettably, a marriage has irretrievably broken down, to enable the empty legal shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation.

7. Under the Hindu Marriage Act the aim of reconciliation as provided in Sub-section (2) of Section 23 is a means to the overriding end of 'buttressing...... the stability of marriage.

8. Indeed the provisions in Hindu Law do reflect a concern with reconciliation. For example, usually no petition for divorce can be presented to the court unless three years have passed since the date of marriage, or leave for presenting a petition within that time has been obtained on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent. This bar to an over-hasty dissolution of marriage is strengthened by the court being required to have regard to the question whether there is a reasonable possibility of reconciliation.

9. In the instant case, neither the trial court nor the appellate court below made any efforts to bring about a reconciliation between the parties. Effort was however, made by me to bring about a reconciliation between the appellant and the respondent, but it yielded no result The appeal is, therefore, being decided on merits.

10. The appellate court below recorded a finding that the allegation of unchastity made by the husband respondent against the appellant was false. So also it found that the allegation of the appellant against the respondent that the latter was living in adultery was also false. In the notice Ex. 1, the respondent had no doubt written that despite her being unchaste he was prepared to take the appellant along with him. The appellant had also deposed that while she stayed with the respondent she was accused of being unchaste. It is now to be seen whether the accusation was of such a nature and degree as to cause a reasonable apprehension in her mind that it would be harmful or injurious for her to live with the respondent. None of the documents filed on behalf of the appellant discloses that the impact of such an accusation was such as to make her apprehensive that it would be harmful or injurious for her to live with the respondent. Even in the letter which she sent to the respondent after the respondent had sent the notice Ex. 1 to her father she did not complain that she had been falsely accused of being unchaste, and that the said accusation had caused a reasonable apprehension in her mind that it would be harmful or injurious for her to live with the respondent. It was no doubt, not proper and desirable on the part of the respondent to malign his wife, the appellant, of unchastity; but in order to secure a decree of divorce on the ground of cruelty, it was necessary for the appellant to establish that (a) she had been persistently or repeatedly treated by the husband with cruelty and (b) that the cruelty was o such a nature, degree and extent as to cause a reasonable apprehension in her mind that it would be harmful or injurious for her to live with the husband. In the case in hand, though the appellant had been successful in proving that the respondent had treated her with cruelty by accusing her of unchastity, she has failed to establish that the respondent had treated her with such cruelty as to cause a reasonable apprehension in her mind that it would be harmful or injurious for her to live with the other party, It may be noticed that her other allegations that the respondent had inflicted physical injury on her while she stayed with him, was not found to be correct by the appellate court below. The only ground which was urged before me was that the appellant had been falsely accused of being unchaste and that this accusation amounted to cruelty. The appellant had, therefore, to establish that this false accusation of unchastity had caused a reasonable apprehension in her mind that it would be harmful or injurious for her to live with the respondent. She has, in my view, failed to establish this fact. The appellate court below was, therefore, correct in not granting a decree of divorce to her.

11. In the circumstances, the appeal fails and is dismissed. The parties shall, however, bear their own costs throughout.


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