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Smt. Umri Bai Vs. Chittar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 45 of 1962
Judge
Reported inAIR1966MP205
ActsHindu Marriage Act, 1955 - Sections 10(1)
AppellantSmt. Umri Bai
RespondentChittar
Appellant AdvocateA.S. Usmani, Adv.
Respondent AdvocateR.C. Agrawal, Adv.
DispositionAppeal allowed
Cases ReferredSidney v. Sidney
Excerpt:
- - she is still residing with him, but he does not disapprove of it; it is obvious enough that his willingness to take her back is faked when he goes to the extent of saying that he does not disapprove of that conduct of his wife. allthis must be taken into account to judgewhether the conduct complained of amounts toa matrimonial offence of cruelty within the meaning of section 10(1) of the act. the powers of this court will he turned to good account if, while meting out justice to the parties, such order should he taken in the mailer as to slay and quench this desire and repress this evil......offence. his statement must therefore, be rejected.4. where such suspicion not only lurks in the husband's mind against the fidelity of his wife, but he also gives expression to it, is it not bound to cause a reasonable apprehension in her mind that it will be harmful or injurious for her to live with him the appellant's apprehension is that her life would be in danger, or her nose would be cut off, or she would be disfigured otherwise.5. it is dangerous to attempt a comprehensive definition which would cover all cases of cruelty and that danger has been emphasised on occasions without number. the legal concept of cruelty has varied from time to time not in theory but in application, according as the social and economic conditions changed. before the enactment of the hindu marriage.....
Judgment:

Shiv Dayal, J.

1. This is an appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter called the Act). In 1961 the appellant made an application under Section 10 of the Act for judicial separation on the ground that the respondent had deserted her for a continuous period of more than two years immediately preceding the presentation of the petition and further that he treated her with cruelty. The parties were married in or about the year 1951. They lived together upto November 1957. No child was born to them. The petitioner's case was that for about three and half years prior to the presentation of the petition her husband deserted her and did not cohabit with her. He filed a criminal complaint against her under Section 494 of the Penal Code, alleging that she had contracted another marriage with one Chhinga. She was acquitted. Now she has apprehension in her mind that if she would live with the respondent, her life would be in danger, or her nose would be cut off, or she would otherwise be disfigured.

The respondent's case was that it was she who left the matrimonial home of her own record and at the instigation of her father. He was prepared to take her back. He admitted that he had prosecuted her under Section 494 of the Penal Code and that she had been acquitted.

2. The trial Court dismissed the petition on the ground that the petitioner's statement as to the facts constituting the alleged desertion were not proved and that she had herself left the matrimonial home when her mother died. As to the charge levelled by the husband against her that she had deflected from the path of rectitude, the learned trial Judge observes;

' In bringing criminal complaint the purpose as it appears from the statement of Jhaboolal was to get the lady back and not to see her punished. The respondent and his witnesses have also deposed to the effect that Mst. Umri has been visiting Itarsi and she has illicit relations with Chhinga. This story docs not appear to be imaginary or malicious. ' He reached the conclusion that as the husband was willing to take her hack, judicial separation could not be decreed.

3. We are unable to agree with the learned Additional District Judge in his approach to the matter. He did not view it in the correct perspective. The respondent accused her of having contracted a second marriage with Chhinga. The criminal Court acquitted her of the charge which was not proved. But this is not all. Even in these proceedings, the respondent made no endeavour to prove any marriage between her and Chhinga, His statement is curious enough. He says that Smt. Umri has taken Chhinga as her husband; she is still residing with him, but he does not disapprove of it; he is still prepared to take her back.

'UMRI NE CHHINGA KO KAR LIYA HAI AB BHI USKE PAS RAHATI HAI YAH BAT MUJHE KOI NAGAWAR NAIIIN HAI MAIN TO AB BHI LE JANE KO TAIYAR HUN. '

It is quite plain from this statement that the respondent still persists in his allegations on which she was prosecuted earlier. He reiterates the accusation that she is maintaining illicit intimacy with Chhinga. It is obvious enough that his willingness to take her back is faked when he goes to the extent of saying that he does not disapprove of that conduct of his wife. The only purpose behind this statement is to defeat the present proceedings. His statement cannot be accepted on its face value. It does not accord with the natural conduct of an ordinary husband. He is not that ideal type who would forgive and forget. His own conduct in prosecuting her under the law of crimes proves the extent to which he took offence. His statement must therefore, be rejected.

4. Where such suspicion not only lurks in the husband's mind against the fidelity of his wife, but he also gives expression to it, is it not bound to cause a reasonable apprehension in her mind that it will be harmful or injurious for her to live with him The appellant's apprehension is that her life would be in danger, or her nose would be cut off, or she would be disfigured otherwise.

5. It is dangerous to attempt a comprehensive definition which would cover all cases of cruelty and that danger has been emphasised on occasions without number. The legal concept of cruelty has varied from time to time not in theory but in application, according as the social and economic conditions changed. Before the enactment of the Hindu Marriage Act, judicial separation was not known to Hindu Law. As alternative conditions arose in matters, social, economic and political, the Hindu Law relating to marriage was codified. A large volume of case law is available around the significance of important expressions employed in the Hindu Marriage Act, 1955. But the Courts should be extremely careful while seeking assistance and guidance from English decisions, or even Indian decisions based on other laws, now in force or previously in force, and should not follow them blindly, particularly while dealing with persons whose manners, customs and mode of life may be different from those of the parties concerned in those decisions.

6. 'Cruelty' within the meaning of Section 10(1)(b) of the Act postulates a treatment of the petitioner with such cruelty as tocause a reasonable apprehension in the petitioner's mind that it will be harmful or injurious for the petitioner to live with the other party. But cruelty under that section is not necessary physical cruelty. The clause iscomprehensive enough to apply to cases ofmental cruelty, which may cause even moveserious injury than physical harm and createin the mind of the injured spouse such apprehension as is contemplated in the section.Lord Hobhouse said in (Earl) Itussel v.(Countess) Russel, 1897 AC 395 at p. 438 :

' Cruclty has never been confined to cases ofpersonal danger but has been judged by a wider and more reasonable criterion expressedby Lord Stowell, namely, whether or no conjugal duties have become impossible betweenthe litigant husband and wife.'

In that case it is laid down by the majority oflaw Lords that cruelty is a conduct of such acharacter us to have caused danger to life,limb or health (bodily or mental) or to giverise to a reasonable apprehension of such danger. It would bear repetition that it is undesirable, if not impossible, to categorise acts andconduct amounting to cruelty. The questionmust be determined from the whole facts andthe matrimonial relations between the spouses.It is to be determined as a cumulative effect ofall the circumstances, having regard to theirculture, temperaments, stains in life, the stateof health of the parties, the interaction betweenthem in their daily life and numerous otherfeatures which cannot be brought in and confined to an exclusive or inclusive definition. Allthis must be taken into account to judgewhether the conduct complained of amounts toa matrimonial offence of cruelty within the meaning of Section 10(1) of the Act. The existence of cruelty depends not on the magnitude, but rather on the consequence of theoffence of cruelty, actual or apprehended. Ina petition based on cruelty the duty of theCourt to interfere was intended, not to punishthe husband for the past, but to protect thewife for the future. This was also the view ofPearson, J., in Lissack v. Lissack (1950) 1 AllER 233.

7. In this case, the parties are Dhanaks. They are rustic cultivators. The husband is about 29 and the wife about 23. They have no issue. They have been living apart for about 8 years. The husband falsely charged the appellant with immorality and adultery. Even now he persists in that charge. Having regard to all the circumstances, it must be said that a reasonable apprehension in her mind has been caused that it will be harmful or injurious for her to live with the respondent. In Kuppuswami v. Alagammal, AIR 1961 Mad 391 and Iqbal Kuar v. Pritam Singh, AIR 1963 Punj 242; judicial separation was decreed on the ground of cruelty within the meaning of Section 10(1) of the Hindu Marriage Act, where the husband charged the wife with immorality and adultery, and persisted in his charge. We share that view.

8. We make it very clear that every unpalatable behaviour of the other spouse is not necessarily 'cruelty,' physical or even mental, so as is afford a ground for judicial separation under Section 10 of the Act. Sometimes, when parties to a marriage forget that married life is a joint adventure and they do not 'bear and forbear,' differences occur, and if they are not resolved amicably, they give rise to misunderstandings, and, if either party lacks the force of character and the art of tact and patience, they aggravate, and aggravate sometimes to such an extent that the parties begin to feel hostile to each other. Then it becomes difficult to horn their minds to peace. And, if they have foolish advisers, fuel is added to fire; their problems are converted from mole hills into mountains. With a law enabling dissolution of marriage, they rush to the Court and try to wash their dirty linen. Each seeks the pride of winning the case. Here it is that the Court has carefully to bear in mind that the expression 'cruelty' is employed in the Act in a limited sense.

Although what the majority of Law Lords said in Russel v. Russel (supra) would serve as a guide, each case must he determined on the totality of the facts and circumstances before the Court. On every such occasion the following remarks of Sir J. P. Wilds, in Sidney v. Sidney (1734) 34 LJPM 122, must be remembered :

' If is the foremost duty of this Court, in dispensing the remedy of divorce, to uphold the institution of marriage. The possibility of freedom begets the desire to be set free, and the great evil of a marriage dissolved, that it loosens the bonds of so many others. The powers of this Court will he turned to good account if, while meting out justice to the parties, such order should he taken in the mailer as to slay and quench this desire and repress this evil.'

9. For the appellant it is undertaken that no alimony will be claimed from the husband under Section 25 of the Act.

10. The appeal is allowed. The order of the trial Court is set aside. The appellant shall have a decree for judicial separation from the respondent. Parties shall bear their own costs throughout.


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