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Smt. Priti Parihar Vs. Kailash Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberSpecial Appeal No. 64 of 1974
Judge
Reported inAIR1975Raj7; 1974(7)WLN397
ActsHindu Marriage Act, 1955 - Sections 10(1); Rajasthan High Court Rules, 1952 - Rule 801E
AppellantSmt. Priti Parihar
RespondentKailash Singh
Appellant Advocate N.C. Bhoot, Adv.
Respondent Advocate V.S. Dave, Adv.
DispositionAppeal dismissed
Cases ReferredRichardson v. Richardson
Excerpt:
hindu marriage act, 1955 - section 10--'matrimonial offence'--mental cruelty is a matrimonial offence.;'matrimonial offence' is a convenient judicial phrase with which matrimonial lawyers are fairly familiar.; it includes action or omission which injures the susceptibilities of the affected spouse and causes him or her mental agony to which the sufferer alone can state. in view of the time honoured definition of cruelty, mental cruelty is undoubtedly a matrimonial offence.;(b) rajasthan high court rules, 1952 - rule 801--matrimonial offence--room for improvement in drafting of allegations--held, allegations disclose cause of action and does not violate spirit of rule. - industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees..........when he says: 'as already stated above, judicial separation has been claimed on the ground of mental cruelty besides desertion, and the learned counsel has failed to point out whether an allegation of mental cruelty is a matrimonial offence. in my humble opinion it is not.' 'matrimonial offence' is a convenient judicial phrase with which matrimonial lawyers are fairly familiar. in our opinion, the learned. single judge was in error when he said that mental cruelty is not a matrimonial offence. cruelty has been defined in the classic judgment of russell v. russell, (1895) p.d. 335,-- 'cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give.....
Judgment:

B.P. Beri, C.J.

1. This is a special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 directed against the order of a learned Single Judge of this Court dated March 13, 1974, in a matrimonial matter. The husband has instituted a petition for judicial separation on the ground of desertion and cruelty. After a protracted contest in the Court of the learned District Judge as well as in this Court several issues were framed out of which two are material for the purposes of this appeal. These issues read:

'4. Whether the petition discloses a cause of action for judicial separation?

5. Whether the petition is not in proper form as provided in the Hindu Marriage Act and the rules made thereunder and, if so, to what effect?'

The learned District Judge heard the learned counsel for the parties and by a detailed order dated January 1, 1974 decided both the issues against the wife. Dissatisfied, she came to this Court and the learned Single Judge by his order dated March 13, 1974 dismissed the appeal summarily.

2. Learned counsel for the appellant urges that as required by Rule 801-E (f) of the Rajasthan High Court Rules, 1952 the necessary particulars for the matrimonial offences have not been given in separate paragraphs. The material sub-rule reads--

'801-E (f) the matrimonial offence or offences charged set out in separate paragraphs with the time and place of its or their alleged commission.'

So far as desertion is concerned, the learned District Judge held that it is alleged by the petitioner to have commenced on November 7, 1969. In our opinion, no other date is material in the circumstances of this case. So far as cruelty is concerned, we regret, we are unable to agree with the observations of the learned Single Judge when he says:

'As already stated above, judicial separation has been claimed on the ground of mental cruelty besides desertion, and the learned counsel has failed to point out whether an allegation of mental cruelty is a matrimonial offence. In my humble opinion it is not.'

'Matrimonial offence' is a convenient judicial phrase with which matrimonial lawyers are fairly familiar. In our opinion, the learned. Single Judge was in error when he said that mental cruelty is not a matrimonial offence. Cruelty has been defined in the classic judgment of Russell v. Russell, (1895) P.D. 335,--

'Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger.'

It includes action or omission which injures the susceptibilities of the affected spouse and causes him or her mental agony to which the sufferer alone can state. In view of the time honoured definition of cruelty, mental cruelty is undoubtedly a matrimonial offence. We are supported in our opinion by the observations in Richardson v. Richardson, (1949) 2 All ER 330, wherein Bucknil L. J. has observed,--

'A matrimonial offence seems to me to mean an offence against the vows of marriage. The vows of marriage are well known. Desertion is certainly one offence, and cruelty as defined by the law is another.'

3. We had asked learned counsel for the appellant to road before us the material paragraphs in the petition to appreciate whether the allegations of mental cruelty are made with sufficient clarity enabling the wife to answer them adequately. They have been read before us and we find no difficulty in saying that the averments do disclose the allegations of mental cruelty.

4. Prima facie and without expressing any opinion on the materials, in our opinion, the allegations contained in the petition sufficiently disclose a cause of action on this ground. We repeat, we express no opinion on the merits.

5. So far as the complaint against the paragraphing of the petition as required by Rule 801-E (f) is concerned, all that we can say is that the drafting has room forimprovement, but that does not violate, insubstance, the spirit of the rule.

6. We do not decide the question whether this appeal is or is not maintainable under Section 18.

7. After having heard the learned counsel at considerable length, we are of the opinion that this appeal has no substance and is summarily dismissed with the aforesaid observations.


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