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iqbal Kaur Wife of S. Pritam Singh Vs. Pritam Singh S. Nanak Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 52(M) of 1961
Judge
Reported inAIR1963P& H242
ActsHindu Marriage Act, 1955 - Sections 10(1)
Appellantiqbal Kaur Wife of S. Pritam Singh
RespondentPritam Singh S. Nanak Singh
Appellant Advocate Dalip Singh Kang, Adv.
Respondent Advocate J.S. Shahpuri, Adv.
DispositionAppeal allowed
Excerpt:
.....passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - a happy domestic life, in my view, has become a sheer impossibility and in face of the denial by the wife, the allegations which have been made by the husband regarding her immorality and unchastity must per se be regarded to constitute cruelty......and her daughter remained in jail as a result of the proceedings initiated by the husband. the learned judge in a discussion of the issue on cruelty has observed that :-'even though it is true that there has been considerable criminal litigation between the parties and they cannot live peacefully under one roof yet it is no ground for granting a decree for judicial separation. it may here be mentioned that there have been proceedings between the parties under section 107 of the code of criminal procedure. the respondent has also prosecuted the petitioner for the commission of an offence under section 498. indian penal code. the petitioner was also proceeded against under section 160, indian penal code, even though the respondent did not admit that it was he who launched this.....
Judgment:

Shamsher Bahadur, J.

1. This is an appeal of Iqbal Kaur whose petition under Section 10 of the Hindu Marriage Act for judicial separation from her husband has been dismissed by the Senior Subordinate Judge, Amritsar.

2. It is somewhat unusual that the parties in this case who have been married for about 25 years and have as many as seven children from this wedlock have been leading such a strained life for the past two or three years that one spouse feels compelled to seek separation from the other. The wife sought the decree for judicial separation on the ground that she had been deserted by her husband Pritam Singh. respondent about ten years prior to 22nd of January, 1960, when the present petition was filed. According to her allegation, he indulgedin the business of speculation and lost heavily. He did not desist from such a ruinous course in spite of the wife's protestations who was often given a beating when she protested. An allegation is made that the husband wanted to take an unmarried daughter from her custody for immoral purposes. General cruelty was alleged against the husband. On the pleadings two issues were framed, one in respect of desertion and the other bearing on the question of' cruelty. On the question of desertion it has been found that the petitioner has not proved her case and no argument has been addressed by her learned counsel Mr. Dalip Singh Kang on this aspect of the case.

3. So far as cruelty is concerned, the statement of the respondent himself as R. W. 2, coupled with the other evidence, proves beyond any manner of doubt that the petitioner has been treated with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful, or injurious for her to live with the other party, and the under Clause (b) of Sub-section (1) of Section 10 of the Hindu Marriage Act is sufficient to justify a decree for judicial separation, The two witnesses who have appeared for the petitioner have stated that a scuffle took place between the husband ancl the wife in an open thoroughfare on 5th of December, 1959. The husband uttered the threat that he would kill his wife who was leading an immoral life. This incident was followed by proceedings under Section 107 of the Code of Criminal Procedure. In his own statement the respondent has made an allegation that the petitioner was living in adultery with one Dr. Tarlok Singh. The approach of the learned Senior Subordinate Judge is somewhat curious. While conceding that the evidence disclosed open quarrel between the parties in the Court compound in the month of January, 1960, a conclusion has been reached that this has no bearing on the' question of cruelty. The petitioner and her daughter remained in jail as a result of the proceedings initiated by the husband. The learned Judge in a discussion of the issue on cruelty has observed that :-

'Even though it is true that there has been considerable criminal litigation between the parties and they cannot live peacefully under one roof yet it is no ground for granting a decree for judicial separation. It may here be mentioned that there have been proceedings between the parties under Section 107 of the Code of Criminal Procedure. The respondent has also prosecuted the petitioner for the commission of an offence under Section 498. Indian Penal Code. The petitioner was also proceeded against under Section 160, Indian Penal Code, even though the respondent did not admit that it was he who launched this prosecution.'

4. in my opinion this evidence which has been accurately summarised by the Court is sufficient to grant the relief of judicial separation to the wife on ground of cruelty. As stated in Rayden on Divorce (8th edition) at page 122:-

'The general rule in all questions of cruelty is that the whole matrimonial relations must be considered, and that rule is of special value when the cruelty consists not of violent acts, but of injurious reproaches, complaints, accusations or taunts.'

The husband has not hesitated to make allegations of the foulest character against his wife. He has accused the wife of living in adultery with Dr. Tarlok Singh, of conniving at immorality and keeping (sic) brothel. If such a course of conduct is not cruelty it is difficult to imagine what state of affairs would be regarded sufficient to cause mental suffering and pain to the person concerned? The wife has stated unequivocally that she is not prepared to live with her husband and there is grave apprehension of danger to her life. Taking the evidence as it is, nobody can conceivably take the position that the wife can still live amicably in the matrimonial home. A happy domestic life, in my view, has become a sheer impossibility and in face of the denial by the wife, the allegations which have been made by the husband regarding her immorality and unchastity must per se be regarded to constitute cruelty. The learned Judge has brushed aside the evidence on the ground that such a plea was not taken in the petition itself. It is true that the allegations are not set out in such details as these might have been but where cruelty is made the principal ground for relief, the evidence when it emanates from the respondent himself cannot be disregarded or ignored. The learned Judge has not found and indeed could not do so that the evidence adduced by the parties does not constitute legal cruelty. When the wife is stated by the husband to be living the life of a prostitute and in the environments of immorality without any proof of these allegations, she can legitimately ask the Court to give a finding, that she has a reasonable apprehension in her mind about the harmful or injurious effect of living in the matrimonial home.

5. This appeal in my view must be allowed with costs and the wife is granted a decree for judicial separation under Section 10 of the Hindu Marriage Act as prayed for.


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