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Yaduray Bansi Vs. Sunderbai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtGujarat High Court
Decided On
Case NumberAppeal No. 234 of 1963 from Original Decree
Judge
Reported in(1969)GLR45
ActsHindu Marriage Act, 1955 - Sections 10(1), 13(1), 23 and 23(1)
AppellantYaduray Bansi
RespondentSunderbai
Appellant Advocate S.B. Vakil, Adv.
Respondent Advocate K.G. Bhatt, Adv.
DispositionAppeal allowed
Cases ReferredMt. Anis Begum v. Muhammed Istafa Wali Khan.
Excerpt:
.....same type, provided the petitioner is able to establish by reliable and sufficient evidence the acts of cruelty on the part of her husband which obliged her to leave the place and then file the petition for judicial separation. in other words, in order to strengthen or add justification to her being obliged to live separate from her husband on grounds of cruelty and desertion, previous instances of similar character may well be relevant but it cannot serve as good ground for obtaining judicial separation unless sufficient and reliable evidence with regard to the last acts of ill-treatment and cruelty or/ and desertion which led her to file the petition, are established in the case. in the first case, i am not satisfied with her evidence alone in that direction and even if any such..........same type, provided the petitioner is able to establish by reliable and sufficient evidence the acts of cruelty on the part of her husband which obliged her to leave the place and then file the petition for judicial separation. in other words, in order to strengthen or add justification to her being obliged to live separate from her husband on grounds of cruelty and desertion, previous instances of similar character may well be relevant but it cannot serve as good ground for obtaining judicial separation unless sufficient and reliable evidence with regard to the last acts of ill-treatment and cruelty or/ and desertion which led her to file the petition, are established in the case. in the first case, i am not satisfied with her evidence alone in that direction and even if any such.....
Judgment:

Shelat, J.

1-5. * * *

6. Even if, for a moment, we were to take it that she was ill-treated or beaten some time, before she went on the last occasion in March 1960, she can be taken to have duly condoned the same, and more so when she had gone to his place at Umred of her own accord. It Was urged that under Section 23(1)(b) of the Hindu Marriage Act, 1955, any act of cruelty committed by her husband would obviously be taken as condoned, and therefore, that ground of cruelty cannot be considered a good ground for claiming any such relief of judicial separation. The relevant part of Section 23 of the Act provides as under :--

'(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that :--

(a) .......

(b) where the ground of the petition is the ground specified in Clause (f) of Sub-section (1) of Section 10 or in Clause (i) of Sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the

act or acts complained of, or where the ground of the petitioner is cruelty the petitioner has not in any manner condoned the cruelty, and

(c) .......

(d) .......

(e) .......

then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.'

A plain reading of Clause (b) of Section 23(1) of the Act, shows that before the Court is satisfied for granting any such relief, in case of a ground of cruelty -- it must not have been condoned by the petitioner -- before filing the petition. The present petition is based on a subsequent incident which took place on her third stay at Umred in 1961 and that is not said to have been condoned. But the previous two incidents can easily be taken as her having condoned -- if they were to be held as in any way established, and consequently they cannot be ordinarily taken into account. But it was pointed out by Mr. Bhatt, the learned advocate for the respondent, by a reference to a case of Stones v. Stones, (1935) ILR 62 Cal 541, where it was held that a matrimonial offence, subsequent to the condonation of a prior matrimonial offence, operates to revive the condoned offence, enabling the aggrieved party to rely thereon as a ground for divorce. That was a case for divorce on the ground of adultery. Another case relied upon by him is one of Kafton v. Kafton, (1948) 1 All ER 435, where it was held that 'cruelty which has been condoned may be revived as a matrimonial offence by subsequent desertion, and for this purpose desertion for 3 years need not be established.' This case was further relied upon by Mr. Bhatt to show that the requirement by the Court of corroboration where cruelty is alleged is merely a matter of practice, and not a rule of law, and it has never been decided that the Court is not entitled in a proper case, where (there?) it is no doubt where the truth lies, to act on the uncorroborated testimony of the petitioner. Leaving aside for the time being as to the requirement of any corroboration to the petitioner's evidence, it can be said that even if any act of cruelty has been condoned by the wife, that could be revived as a ground if she is later on treated with cruelty and/or deserted. But that has to be so only for showing that he was so behaving before, and that he has continued to be of the same type, provided the petitioner is able to establish by reliable and sufficient evidence the acts of cruelty on the part of her husband which obliged her to leave the place and then file the petition for judicial separation. In other words, in order to strengthen or add justification to her being obliged to live separate from her husband on grounds of cruelty and desertion, previous instances of similar character may well be relevant but it cannot serve as good ground for obtaining judicial separation unless sufficient and reliable evidence with regard to the last acts of ill-treatment and cruelty or/ and desertion which led her to file the petition, are established in the case. In the first case, I am not satisfied with her evidence alone in that direction and even if any such acts were committed, they stood condoned by her as soon as she went to her husband's house of her own accord on the last occasion.

7. It is, therefore, necessary for her to establish the matrimonial offence such as that of cruelty on the part of her husband so as to cause reasonable apprehension in her mind that it is harmful and injurious to live with her husband. The onus of proof of any such matrimonial offence is on the person who alleges the same namely the petitioner in the present case. The parties to such a petition are obviously interested in the relief that one claims against the other and each side is likely, therefore, to either exaggerate or even go beyond what might have actually happened, for ordinarily solemn marriage ties cannot easily be disrupted unless, it has become highly unbearable for one to stay with the other. In a case of this character, therefore, while rule of law may not require corroboration in the sense that even the testimony of a single person such as even the party in a proceeding can be acted upon if it inspires confidence and the reliability that it should, but as pointed out from the decision in the case of (1948) 1 All ER 435, as a matter of practice Court would ordinarily require some corroboration. In fact, if we refer to the judgment of Tucker L.J., it has been pointed out that there may be many cases in which it would be unsafe to act upon without corroboration, though no doubt the Court would be entitled to act upon without corroboration in a proper case, where there is no doubt where the truth lies. Then it is observed as under :--

'I do not desire to be understood as saying anything to weaken the requirement that corroboration in these cases is highly desirable, but there may be cases in which the Court feels that it can safely act without corroboration.'

It is no doubt true that in cases of this character where cruelty is committed inside the doors of the house, eye witnesses may not be possible to have. In Carroll v. Carroll, AIR 1934 Pat 475, it is observed that 'in a case of cruelty it is necessary to have corroboration of the evidence of petitioner.' In another case of Mirjanali v. Maimuna Bibi, AIR 1949 Assam 14, it is observed that 'it iswell-established principle that in matrimonial causes, the uncorroborated testimony of one of the parties to the marriage is not sufficient to prove cruelty. There must be some corroboration of that evidence, though obviously it is not necessary to examine an eye-witness to the alleged acts of cruelty'. On the other hand it was pointed out that in case of Mt. Anis Begum v. Muhammed Istafa Wali Khan. : AIR1933All634 , it has been observed that 'when the question is of the husband's cruel treatment towards his wife, evidence of a large number of witnesses cannot be expected to be forthcoming, and much will depend on the statement of the wife corroborated by the circumstantial evidence, particularly when the cruelty is alleged to have taken place inside the house of her husband.' The effect of all these decisions is that ordinarily as a rule of prudence and practice, though not as a rule of law, in cases of matrimonial causes the Court should always expect to get some corroboration from other evidence or even from circumstances in regard to the material particulars relating to the acts of cruelty alleged by one against the other. It is only in very rare cases where and that too when the evidence of the party to such a cause inspires the confidence and the reliability, in the given circumstances of a particular case, that the Court can act upon the same without any corroboration. While no direct evidence to support a party may be had, there must be some reliable circumstances which tend to support the testimony of a petitioner and it is in that light that we have to consider the effect of the evidence led in the case. In the present case, however, it is difficult to put implicit reliance on the evidence either of the petitioner or the opponent. Each side has not chosen to tell the truth, and while one has tried to exaggerate to the highest extent, the other has tried to minimise his attitude and acts with regard to the relations existing between them. Apart from that position, this is a case in which some corroboration appears to be available with regard to the acts of cruelty alleged against the husband and yet none is brought on record.

8-11. * * * * *


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