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Jai Shanker Vs. Smt. Chandresh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc Appeal No. 9 of 1978
Judge
Reported in1978(11)WLN627
AppellantJai Shanker
RespondentSmt. Chandresh
DispositionAppeal dismissed
Cases ReferredGollins v. Gollins
Excerpt:
hindu marriage act, 1955 - section 13(1)--divorce animus deserendi date of actually leaving husband's borne is not date of animus desereodi--two years not complete when suit was instituted--held, appellant is not entitled to get marriage dissolved.; desertion for a continuous period of not less than two years is to be prior to the presentation of the petition and it is only after the expiry of the statutary period prescribed under section 13(1)(ib) that mat to husband becomes entitled to a divorce. in certain circumstance the deserting spouse may not be the person who actually leaves the matrimonial home. the actual parting tiny be due to the deserting spuse making continued joint life impossible and thus complling the deserted spouse to leave the matrimonial home in such casts the.....s.k. mal lodha, j.1. the appellant-husband (hereinafter called as 'the appellant') has bled this appeal against the judgment and decree of the learned district judge, bhilwara dated december 23, 1977, by which he dismissed the petition of the appellant filed under section 13 of the hindu marriage act, 1955 (hereinafter referred to as 'the act') for divorce.2. the facts which have given rise to this appeal are as follows : the appellant, jaishanktr was married with smt. chandresh, respondent-wife (hereinafter called as 'the respondent') on may 26, 1973 at bijainagar. both of them lived together as husband and wife in village roopahale tehsil murdha, district bhilwara upto february 26, 1975. the case of the appellant is that on february 26, 1975, the respondent bad left the company of the.....
Judgment:

S.K. Mal Lodha, J.

1. The appellant-husband (hereinafter called as 'the appellant') has bled this appeal against the judgment and decree of the learned District Judge, Bhilwara dated December 23, 1977, by which he dismissed the petition of the appellant filed under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') for divorce.

2. The facts which have given rise to this appeal are as follows : The appellant, Jaishanktr was married with Smt. Chandresh, respondent-wife (hereinafter called as 'the respondent') on May 26, 1973 at Bijainagar. Both of them lived together as husband and wife in village Roopahale Tehsil Murdha, District Bhilwara upto February 26, 1975. The case of the appellant is that on February 26, 1975, the respondent bad left the company of the appellant of her own will, without just and reasonable cause and since then she has been living at the house of her father, Mad an Lai Shatma in village Panotia, Tehsil Shahpura The appellant claimed a decree of divorce on the following grounds:

(i) that the respondent has deserted the appellant for more than 2 years immediately preceding the presentation of the petition (petition under Section 13 of the Hindu Marriage Act, 1955 was submitted on March 4, 1977).

(ii) that the respondent is suffering from mental disorder 'one of the grounds on which divorce can be claimed under Section 13 of the Act is that the respondent has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that it cannot be reasonably expected to live with the respondent.

(iii) that she has, after the marriage had voluntary sexual intercourse with other persons and is leading an unchaste life, and

(iv) that the respondent has, after the marriage, treated the appellant with cruelty.

It was further stated that the respondent's behaviour was not that of what should he of a faithful wife, that she quarrelled with the appellant & that she used the sleep in a separate room. It was also alleged that she did not do the house bold work The appellant has also stated, in the petition, that on October 20, 1975, the respondent, through her father, filed a false complaint under Section 107 and 116(3) of the Code of Criminal Procedure against him and his mother and father in the court of the sub-Divisional Magistrate, Shabpura which was dismissed on May 22, 1976 for want of evidence. From the averments made in the application, it is clear that the appellant has claimed a decree of divorce on the grounds of desertion, adultery, mental disorder and cruelty. As stated above, this petition under Section 13 of the Act was field on March 4, 1977.

3. The respondent contested the petition. She stated that after her marriage she and the appellant lived together as husband and wife for about two years and that she did not leave the company of her husband on February 26, 1975 as alleged by the appellant, but in April, 1975 after 5 or 7 days of 'Holi', the appellant, his mother and father turned her out of the house after beating her and thereafter she was compelled to live with her parents. She denied the grounds of desertion, adultery, mental disorder and cruelty. In regard to the grand of desertion, besides denying the same, an objection was taken that two years have not elapsed immediately preceding the presentation of the petition under Section 13(1)(ib) of the Act and, therefore, on the ground of desertion, the petition is not maintainable. She pleaded that the behaviour of the appellant as well as his mother and father towards her was cruel and without any reason they used to beat her. It was averred that the character of the appellant's mother is bad about which she complained to the appellant and it is on account of this reasin, that the members of his family often beat her and in April 1975, she was turned out of the house by the appellant and his parents after beating her. As regards the initiation of proceedings under Section 107 and 116(3) of the Code of Criminal Procedure, she stated that her father correctly initiated them against the appellant and his mother and father.

4. The learned District Judge framed as many as eight issues arising out of the pleadings of the parties.

5. In support of the petition under Section 13 of the Act, the appellant examined himself as PW 1 and PW 2 Radha Krishan (father of the appellant), PW 3 Amaisingh, PW 4 Jagdishprasad, PW 5 Devidutt, PW 6 Kanhiyalal, PW7 Ravishanker, PW 8 Ramlal, PW 9 Deo Bux St PW 10 Rameshwarprasad were also examined. The respondent examined herself as NAW 1 & the statements of NAW 2 Bhuralal & NAW 3 Madanlal Sharrna (father of the respondent) were also recorded. After hearing the arguments, the learned District Judge decided issues Nos. 1 to 4 against the appellant As regards issue No 5, he was of the opinion that this issue is redundant and, therefore, he did not decide it. Issue No. 6 was decided against the respondent No decision was given on issue No. 7 In view of the decisions on issues NOS. 1 to 4, the learned District Judge held that the appellant was not entitled to get a decree of divorce. The learned District Judge has mentioned that effects for reconciliation under Section 23(3) of the Act were made after casing both the parties in chamber. The respondent showed her willingness to go with the appellant, but he was not ready to take the respondent and as such reconciliation between the parties could not. materialise, He, therefore, dismissed the petition under Section 13 of the Act and directed that the respondent will be entitled to get the costs froai the appellant, which were assessed by him at Rs 200/-.

6. Being aggrieved by the judgment and decree of dismissal of the petition under Section 13 of the Act dated December 23, 1977, the appellant has preferred this appeal under Section 28 of the Act.

7. In this case, arguments were heard in part on August 14, 1978. On August 16, 1978, Mr D.K. Parihar, learned Counsel for the appellant, submitted an application under order VI Rule 17, CPC for the, amendment of the memo of appeal, the copy of which was supplied to the learned Counsel for the respondent. The appeal also remained part heard on that day. Time was granted to Mr. N.P. Gupta, learned Counsel for the respondent on August 17 and 21, 1978 to enable him to seek instructions from the respondent. The arguments, in the appeal, were conculuded on August 28, 1978 and it was ordered that the appeal be put for dictation of judgment on August 29, 1978 On August 29, 1978, the learned Counsel for the respondent prayed that in this case the dictation of judgment may be postponed as his client will be coming to Jodhpur on September 4, 1978 and after her arrival, he wants to explore the possibilities of a settlement between the parties. Learned Counsel for the respondent informed the Court on September 4, I978.that the respondent has come but on that day the appellant did not come and, therefore, the learned Counsel for the parties again took time for exploring the possibilities of a settlement between the parties in their presence. At the request of the learned Counsel for the parties, the dictation of judgment was deferred for two days When the case came up on September 6, 1978, Smt. Ghandresh (respondent), who was present in the Court in person, stated that she is ready to go the house of the appellant, provided che appellant takes her. At the request of the learned Counsel for the appellant, to enable him to seek instructions from the appellant, dictation of judgment was again deferred and it was ordered that the appeal be put up for dictation of judgment on September 11, 1978. Learned Counsel for the parties informed me that no information has been received by them from the parties and as such I may dictate the judgment.

8. In the application dated August 16, 1978; which was Sled on behalf of he appellant under Order VI Rule 17 CPC, the appellant wanted to insert the folic wing in para (b) of the memo of appeal:

The respondent having made serious allegations in reply against the mother of the appellant regarding her lack of moral character in compelling the respondent to load the adulterous and immoral life and also making serious allegations against the moral character Of the mother of the appellant to the effect that she herself was leading adulterous life and having illegal connection with Shri Amarsingh Choudhary PW 3. The lower court must have decided the issue in favour of the appellant had it entered upon it and not left undecided as it did. After the conclusion of the evidence of the respondent it became clear that the charge was made with a view to inflict mental torture on the appellant. The very fact of making charge of immorality en the mother and that too in the Court of law is one of the worst cruelty committed by the Respondent, particularly so when it is proved to be wholly unfounded, the respondent's whole purpose in making averment to demagrade the appellant in the eyes of the society and his relations, thus in itself amounts to mental cruelty. No grievance of the falsity of these charges could have been made before they were proved false. The proof of false allegations, of immorality of appellant's mother emerges after the judgment of the court below'

There are some mistakes in Ike original para.

By inserting the above mentioned averment, the appellant wants to supplement the ground of cruelty, which he has taken in the petition under Section 13 of the Act. This ground of cruelty is based on the averments which the respondent has made in her reply: namely that the mother of the appellant, Smt. Sarjudevi, is leading an immoral life as she was having illicit connection with one Amarsingh Choudhary of Roopahale.

9. The averments that the character of the mother of the appellant is bad and she was having illicit connection with Amarsingh Ghodhary of Roopahale have been made in para 13 of the reply filed by the respondent. Issue No. 5 was framed b) the trial court as it, arose out of these allegations. The learned Judge did not think it necessary to decide this issue, as according to him this issue was redundant for the disposal of the petition under Section 13 of the Act. The appellant has prayed for the decree of divorce on the basis of four grounds as alleged by him in the petition. The learned District Judge found that the appellant has not been able to establish any of the grorunds, which have been mentioned in the petition under Section 13 of the Act.

10. In a petition under Section 13 of the Act, only those grounds can be availed of which have arisen before the filing of. the petition. The petition under Section 13 is to be decided on the basis of the averments made in it. Section 13 providas that any marriage solemnised, whether before or after the commencement of the Act, may, on a petition presented by either husband or the wife, be dissolved by a decree of divorce on one or more of the grounds mentioned therein.

11. In these circumstances, I proceed to decide the appeal on the basis of the grounds taken by the appellant in his petition.

12. Learned Counsel for the appellant, during the course of his arguments, challenged the findings on issues Nos. 1 and 4 before me. He did not assail the finding on issues Nos. 2 and 3 and he frenkly conceded that there is no direct evidence in support of the grounds of mental disorder and adultery. As such, I am only concerned with issues Nos. 1 and 4 in this appeal. Issues Nos. 1 and 4, when translated into English, read as under:

ISSUE NO. 1:

Whether the opposite party (respondent) had voluntarily left the petitioner on February 25, 1975 without just and reasonable cause and as more than two years have elapsed since the non-petitioner had left the petitioner, it is necessary to dissolve the marriage of the petitioner (appellant) and the opposite party (respondent). ISSUE No. 4:

Whether in view of the facts msntioned in para 5 of the petition, the rpposite party (respondent) misbehaved with the petitioner (appellant) and has treated him with cruelty and on acccount of this it is necessary to dissolve the marriage of the parties?

13. The burden of proving issue No. 1 was on the appellant. He was to establish that the desertion was without reasonable cause and without his consent or against his wish. In order that desertion may furnish as a ground for divorce, the petitioner is required to prove (i) factum of separation and (ii) animus deserendi i.e the intention to bring cohabitation permanently to an end. Similarly two elements are essential so far as the deserted spouse is concerned; (i) absence of consent, and (ii) absence of conduct giving reasonable cause to the spouse lewing the mitrimonial home, to form the necessary intention aforesaid. What is 'desertion' came up for consideration before their Lordships of the Supreme Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati : [1956]1SCR838 . Their Lordships approved the following summarised in paras 453 and 454 at pp. 241 to 243 of Hihbury's Lays of Eigland (3rd Edn.), Vol 12:

In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without resonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.

Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition & discharge of the common obligations of the married state, the state of things may usually be termed, for short, 'the home.' There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated.

The person who actually withdrawn from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.

The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition or where the offence appears as a cross-charge of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the effence founding the cause of action of desertion is not complete, but is if choate, until the suit is constituted. Desertion is a continuing offence.

In Bipinchandra Jaisinghbhai 'Shah's case, the position Was summarized as under:

If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commence when the fact of sepation and the animus deseaendi co-exist, ,But it is not necessary that they should commence at the same time., The de facto separation may have commenced without the necessary animus or it may be that the separation arid the animus deserendi coincide in point of time....

14. This decision was relied upon in Lachman Utamchand Ktipalani v. Meena alias Mota (2). The following observations from Lachman's case may be referred to:

it is settled law that the burden of proving desertion-the 'factum' as well as the 'animus deserendi' is on the petitioner, and he or she has to establish beyond reasonable doubt, to the satisfaction of the court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner husband has still to satisfy the court that the desertion was without just cause.

15. In view of the authoritative pronouncement of their Lordships of the Supreme Court on the point, it is not necessary to examine in detail the decision reported in Smt. Kcko v. Ajitsingh . Manglatai v. Deorao Gulabrao : AIR1962MP193 (5) and Krishanbai v. Punamchand : AIR1967MP200 .

16. With these preliminary observations, I now proceed to examine the evidence of the parties. The appellant has produced P.W. 1 Jaishankir, PW 2 Radhakrishan, PW 3 Amar Singh, PW 5 Devdutt, PW 6 Kanhiyalal & PW 7 Ravi Shanker, to prove desertion. It is relevant here to examine the allegation of desertion made by the appellant in para 2 of the1 petition' What has been stated in para 2 is that the respondent has left voluntarily the appellant on February 26 1975 without just an reasonable cause and since February 26, 1975 upto the date of presentation of the petition, she has been living with her father, Shri Madanlal Sharnsa in village Panotia, Tehsil Shahpura and as the period of more than 2 years has since elapsed, it has become necessary to dissolve the marriage between the appellant and the respondent. The important element of animus deserendi is conspicuously absent. PW 1 Jai Sharker has deposed that the father of the respondent came, to Roophale on February. 26, 1975 and took her away and thereafter the respondent had ript come to his place & since February 26, 1975, she has been living with her father. He has further deposed that the respondent has gone with her father after quarelling and without asking him and that on Octber 8, 1975 he went to her father's house to bring her but she did not come. He has also stated that at that time, he was misbehaved and maltreated and was turned out from the house and the mother and father of the respondent quarrelled with him and refused to send the respondent. In his crossexamination, the appellant has admitted that he and his father and mother did not turn out the respondent from the house after beating her but they sent Ghandresh with her father on February 126, 1975. The witness has deposed as under:

geus pUnzs'k dks ekjihV dj ?kj ls ugh fudkyk] cfYd rk0 26&2&75dks pUnzs'k dks geus ?kj ds jhfr fjokt ds vuqlkj diM+s xgus igukdj mlds firk ds lkFk Hkstk Fkk A

P.W. 2 Radha Krishan, father of the appellant, has stated that on February 26, 1975, father of the respondent came to take the respondent aid in the pre-sence of some persons she was sent to her father's house. It is relevant to quote the words of this witness -

rk0 26&2&75 dks pUnzs'k ds firk ysus vk;s A geus cv;n vkMsk ifgukdj Hk; t; tsoj pUnzs'k dks dbZ O;fDr;ks ds le{k ihgj Hkst fn;k A

P.W. 2 Radhakrishan has further deposed that since February 26, 1975, the respondent has been living at her father's house This witness has also deposed that during this period efforts were made to bring the respondent and he went three times to bring her and that P W. 3 Amarsingh PW 5 Devidutt, PW 6 Kanhiyalal and two panchas were was also sent to bring her, but her father avoided sending her and she was not sent. The statement of P.W 3 Amersingh is to the effect that on October 8, 1975 he went with the appellant to bring the respondent, that he talked over the matter in the night with the lather of the respondent. & he told him that he would send the respondent when the appellant comes, but on the next day, the lather of the respondent told that a bullock cart is being sent & whatever articles were given to him be returned with the child PW 5 Devdutt is the Panch of the Brahmia Sainaj. He has stated that he went to village Panotia for making the father of the respondent agreeable to send her. The father of the respondent agreed to send the respondent within 5 or 7 days, but he did not send her. P.W 6 Kanhiyalal is also the panch of the Brahmin Samaj and he stited that he alsu went to village Panotia & asked the father of the respondent to send the respondent. PW4 Jagdish Prasad has admitted in the cross examination that the behaviour of the respondent, which he saw, was good According to the respondent, she has gone to her father's house alone before two days of 'Shi ala Saptami' NAW 1 Chandreish (respondent) has stated that she was turned out from the house after beating and she went allabne N A W. 3 Madanlal Sharma, father of the respondent has stated that the respondent had last come to as house on Chaitbadi 5 Smt. 2031 and on being asked she told that her mother-in-law and husband had started beating her and that is why she had come all alone. He has further deposed that on October 13, 1975, P.W, 2 Radhakrishan, Smt. Sarju (mother of the appellant) and Jaishanker came to his house and when he refused to send her, they abused him, He has also staled that when the Panchas came to take the respondent, he was ready to send her, but these persons at that time had left the place.

18. In these circumstances, the question that arises for consideration is whether the appellant has been able to prove that the respondent has deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition. It my be recalled here that the petition was filed on March 4, 1977. Learned counsel for the appellant has contended that the respondent left the company of the appellant on February 26, 1975 and as she did not return thereafter to her husband's house the period of two years was complete, when the petition under Section 13 of the Act was filed On the other hand, learned Counsel for the respondent vehemently argued that the period of two years cannot be counted from February 26, 1975 and at the most it can be counted from October 8, 1975, when the respondent refused to go tone? husband's house as alleged by the appellant Learned counsel for the respondent in support of his argument laid considerable emphasis on the portions of the statements of P.W 1 Jashankerand P.W. 2 Radhakishan, which have been extracted above to show that on February 26, 1975 there was no animus deserendi. He emphatically submitted that there is no evidence on record that there was any animus deserendi prior to or on February?6, 1975. Separation of the respondent for a period of two years by itself is not sufficient to establish 'animus deserendi', for. 'offence of desertion' commences when the fact of reparation and animus deserendi co-exist The desertion has to be throughout the entire period of two years He invite 1 my attention to the Explanation appended to Section 13 of the Act, which is in these term desertion means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party; and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.

19. The word 'wilful' has also been employed in the Explanation. From para 2 of the petition, it is not possible to draw an inference of animus deserendi from February 26, 1975. On the other hand, it is clear from the statements of P.W. 1 Jaishanker and PW 2 Radhakrishan that the respondent was sent

20. Learned Counsel for the appellant also invited my attention to the complaint Ex. 2 under Section 107 and 116(3) Cr. PC dated October 20, 1975 which was admitted by the Shri Arjunlal Singhvi, Advocate for the respondent during the trial of the petition, in which in para 1, it has been stated that during the period of two years preceding the filing of this complaint, the appellant, his mather and father had maltreated the respondent and had beaten her, as a result of which the respondent had come to her father's house seven months before. On the basis of these allegations in the complaint Ex. 2, learned Counsel for the appellant submitted that desertion commenced from February 5:6, 1975 as the complaint Ex 2 is dated October 20, 1975. To constitute desertion, there must be cessation of cohabitation without cause therefore and consent thereto but with an intent to abandon which is wilfully persisted in for the space of the statutory period A mete severance of the relations is not sufficient, since there may be a separation without desertion and desertion without separation.

23. In these circumstances, I am unable to agree with the learned Counsel for the appellant that the desertion commenced from February 26, 1975. It cannot be sail that on February 26, 1975 there was an act of forsaking or abandoning or the act of quitting without leave and with an intention not to return when the respondent was sent with her father. From the evidences that has been referred to above, it cannot be inferred this there vas an intention of the part of the respondent not to return to her matrimonial home.

22. Learned Counsel for the appellant then argued that the subsequent events show that there was animus deserendi on the pert of the respondent He urged that at least on October 8, 1975, there was refusal of the respondent when her father toto P.W. 3 Amarsingh that a bullock cart is being sent and whatever articles were given to the appellant be returned with the child. As the respondent If ft the matrimonial home on February 26, 1975, the desertion would relate back from this date, though refusal was on October 8, 1975. I may observatence that under Section 13 of the Act. a husband can get the marriage dissolved by a decree of divorce on a petition, if he proves that his wife has desened him for a continuous period of not less than two years immediately preceeding the presentation of the petition. Desertion for a continuous period of not less than two years is to be prior to the presentation of the petition and it is only after the expiry of the statutory period prescribed under Section 13(1)(ib) that the husband becomes entitled to a divorce. In certain circumstances the deserting souse may not be the person who actually leaves the matrimonial horre. The actual parting may be due to the deserting spouse making continued joint life impossible and thus compelling the deserto spouse to leave the matrimonial rome In such cases the actual abandoning of the matrimonial home is not the act of the person against when the allegation of desertion is made, but the act of the person making the allegation. It has been held in Rangoswami v. Arvindammal : AIR1957Mad243 that the test by which the offence is judged is not the abandoring of the matrimonial hoem, but the fact that the other party has caused such abandonment by his actions, since he must be taken to intend the consequences of such actions.

23. In this case, as held by me above, the appellant has not been able to establish animus deserendi on the part of the respondent on February 26,1975 and as such from subsequent events it cannot be said that there was animus deserendi on the part of the respondent wife on February 26, 1975 In these circumstances, the case of the appellant is not covered by Section 13(1)(ib) of the Act and the appellant is not entitled to get the marriage dissolved on the ground of desertion.

24. It was next argued that on the ground of mental cruelty, the appellant is entitled to get a decree of divorce, Para 5 of the petition deals with the allegations of the cruelty, learned Counsel for the appellant confined his submission to mental cruelty alone and in this connection he invited my attention to the allegations made para 5 of the effect that the respondent through her father on October 20 1975 filed a false complaint under Section 107 and 116(3) Cr. P.C. against him, his mother and father in the Court of the Sub-Divisional Magistrate, Shahpura, which was dismissed for want of evidence on May 20, 1976 His submission is that lodging of a false criminal complaint by the respondent against the appellant and his parent constitutes mental cruelty Ex 2 is the copy of the complaint It beats signature of the father of the respondent Shri Madan Lal Sharma marked A to B. This complaint has been admitted during trul of the petition by Shri Arjunlal Singhvi, Advocate for the respondent in the trial court on July 25, 1975.

25. Learned Counsel for the other hand, submitted that there is no evidence on record that filing of the complaint by the father of the respondent caused reasonable apprehension in the mind of the appellant that it would be injurious or harmful to live with the respondent. Mental condition and thinking process of the appellant has been mentioned. He has further contended tint the complaint Ex, 2 has not been proved to be false. He also urged that it was rot filed be the respondent and the respondent was within her rights to support the complaint under, Section 107 and 116(3) Cr. PC. by filing the affidavit, in the absence of necessary averments and evidence the learned Counsel for the respondent argued that the appellant is not entitled to get the marriage dissolved by a decree of divorce.

26. In lalita Devi v. Radhamohan 1975 RLW 549, Tyagi J, as he then was, has observed in para 10:

But now it is a settled rule of law that the expressions cruelty not only covers the physical or violent act of the spouse but also covers the mental' or the psychological acts of the other partner which create apprehension in the mind of the complaining partner' that it will be harmful Or injurious to live with the other party.

(underlining is mine).

In Priti Parihar v. Kailaihshgh 1974 RLW 284, the learned Judges have held that it (cruelty) includes action or omission which injures the susceptibilities of the affected spouse & causes him or her mental agony to which the sufferer alone can state and the learned Judges were of the opinion that in view of the time honoured definition of cruelty, mental cruelty is' undoubtedly a matrimonial offence. In Siddagangiah v. Smt. Lakshamma AIR 1968 Mysore 115, A.R. Somnath Iyer J, as he then was observed:

Wilful and unjustifiable interference by one spouse in the sphere of the life of the other, is one species of cruelty in the same way in which rough, or demineering conduct or unnatural sexual practices or disgusting accusations of unchastity or adultery, and sometimes eyen studied ,unkindness or, persistent, nagging can, a proper case be, regarded, as cruelty and that cruelty about which, the, Act speaks is pot restricted to acts of physical violence and, ;may extend to behaviour which may cause pain and injury to the mind as well and so renders the continuance in the matrimonial, home as agonishing ordeal.

(Emphasis supplied).

27. This decision was followed in N, Sreepadachar v. Vasantha Bai AIR 1970 Mys 232, and it was held that the cruelty under Section 10(1)(b) need not be only physical, but, there can be mental, cruelsy and the question, of, crueitly must be determined from the whole facts and the matrimonial relations between the, spouses, and it must be determined as a cumulative effect of all the circumstances.

28. Section 10(1)(b) of the Hindu Marrige Act, as it existed then, came to be considered by their Lordships of the Supreme Court in Dr. N.G. Distant v. Mrs S. Distune : [1975]3SCR967 It was held therein that the petitioner must prove that the respondent has threatened him with cruelty within the meaning of Section 10(1)(b) of the Act and dealing with the question of standard of proof to be applied in such cases, it was observed that neither Section 10(1)(b) Which enumerates the grounds on which a petition for judicial' separation may be presented or Section 23 which governs the jurisdiction of the Court to pass a decree in any proceeding under the Act requires that the petitioner mast prove his case beyond a reasonable',' doubt. While dealing with the question as to what amounts to cruelty, their Lordships observed that the inquiry therefore has to be whether the conduct charged as cruelty is of such character as to cause in the, mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. It was further held that clearly, danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to live with the other. Their Lordships further quoted the following from the American Jurisprudence, 2nd Edn., Vol. 24 Page 206:

the question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances ma} be extreme under another set of circumstances.

Their Lordships also approved the principle laid down by Lord Reid in his speech in Gollins v. Gollins (1963) 2 All E.R. 966:

In matrimonial cases we are not concerned with the: reasonable man, as we are in case; of negligence. We are dealing with this man and this woman and the fewer a priori assumption we. make about them the better. In, cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people.

Just by these broad considerations, I have to determinr whether the charge of cruelty on the basis of the complaint Ex. 2 has been proved or not? As stated above, in para 5 of the petition, it has not been stated by the appellant that because of the filing of the complaint Ex. 2 by the father pf the respondent, it is harmful or injurious to live with the respondent. I have also carefully read the statement of P W. 1 Jaishanker in connection with the complaint Ex 2. He has merely ; stated that the 'respondent through' 'his father initiated proceedings under Section 107 and 116(3) 'Or. P.O.' against him, his mother and father. It has also been stated by him that in the Police Station Phulia, a report for arresting him was made I may state that there is no proof in regard to this alleged report He has admitted that ho challan was submitted by the Police in respect of the report lodged in the Police Station Phulia. NAW 1 Ghandresh has deposed that his father, (NAW 3 Shri Madanial Sharma) filed a complaint in the Court of Sub-Divisional Magistrate, Shahpura under Section 107 and 116(3) Cr. PC. and she went once for presenting an affidavit in support of the complaint. NW3, Madanlal Sharma has also admitted that he filed the complaint Ex. 2 under Sections 107 and 116(3) Cr. PC. in the C6urt of the Sub Divisional Magistrate, Saahpura. It has been admitted by this witness that it is correct that on October 13, 1975, the appellant, his father and mother came to his house and asked to send the respondent to which he refused and thereafter they abused him and it is cm account of this incident, that the complaint Ex. 2 was filed. Learned Counsel for the appellent drew my attention to the copy of the notice Ex. 3 dated May 25, 1976 and submitted that amongst others because of the complaint Ex. 2 the appellant lest confidence in her and it was stated that in future there is a danger to the person and property of the appellant and, therefore, he is not in a position to keep her as his life-partner. Reference was made to the copy of the registered notice date September 1, 1976, in which it was mentioned that because of desertion and her refusal to come to the appellant's house and her character being bad, he understands that it is not safe for him to live with her On the other hand, learned Counsel for the respondent invited my attention to the letter Ex A. 1 dated November 24, 1973 which is said to have been written by Fadhakrishao (father of the appellant) to the father of the respondent that the respondents father should come to take her within a week otherwise he will be forced to separate her. From the tenor of the letter Ex A. I, learned counsil wanted to impress upon me that there were events preceding the filing of the complaint Ex. 2 and for which there was justification for initiating the proceedings under Sections 107 and 116(3) Cr. P.C and that this, by itself, cannot and does not lead to the inference that the respondent treated the appellant with cruelty.

29. I have carefully examined the rival contentions of the parties in this regard. In my considered opinion, the appellant has not been able to establish that the respondent has treated him with cruelty so as to entitle him to get the marriage dissolved by a decree of divorce. It has come on record that on October 8, 1975, the appellant had gone to his father-in-law's house, but the respondent did rot accompany him. The appellant was accompanied at that time b) P W. 3 Amarsirgh. These facts have come in the statements of P.W. 1 Jaifhanker, P.W. 2 Radhakrishan and P.W. 3 Amersingh. NAW 3 Madanlal Sharrra, father of the respondent has deposed that on the night between October 12 and 13, 1975, the appellant along with one man came there. NAW 3, Madanlal Sharma has also deposed that on October 13, 1975, the appellant, his mother and father came to his house and told him to send the respondent to which he refused and thereafter, they abused him. It appears that same trouble arose between the appellant, his mother and father en one side and the respondent and her father, on the other when the at pellar came to take the respondent from her father's house and that led to the initiation of the proceedings under Section 107 and 116(3) Cr. PC. by the father of the respondent. The refusal to send the respondent was by her father. The proceedings under Sections 107 and 116(3) Cr. PC. were initiated by tie father of the respondent and ^^xkyh xykSp** was between the appellant, his mother and father and the respondent's father. The complaint under Sections 107 and 116(3) Cr. P.C. was dismissed as period of six month had expired by then. The appellant has not been able to place any material on record to show that the complaint Ex 2 by the father of the respondent was face It is significant to note that in the letter Ex. A 1 dated November 24, 1973, which was written by the appellant's father to the respondent's father, was merely a complaint that the respondent was not doing the house hold work and, therefore, he (respondent's father) should come within a week to take her otherwise she would be separated. There was no suggestion in that letter by the appellant's father that the respondent has treated the appellant with cruelty. There is some force in the contention of she learned Counsel for the respondent that in the facts and circumstances of he case, the respondent cannot be held liable for the act of her father in initiating the proceedings under Sections 107 and 116(3) Cr. P.C. As stated above, the learned Counsel for the appellant during the course of arguments only emphasised that the filing of the complaint Ex. 2 under Sections 107 and 116(3) Cr. P.C. amounts to mental cruelty.

30. In these circumstances in my opinion, the learned District Judge was right in holding that the appellant has not been able to establish that the respondent has treated him with cruelty. Decision on issue No. 4 calls for no interference.

31. Before parting with the case, I may mention here that the learned Counsel for the appellant tried to persuade me to hold that in view of the allegations made in para 13 of the reply filed by the respondent, case of mental cruelty under Section 13(1)(ia) of the Act is clearly made out. I regret, this cannot be done. A perusal of issue No. 4 shows that the subject-matter of the enquiry before the lower court was whether on the basis of the facts mentioned in para 5 of the petition, the respondent has treated the appellant with cruelty and on account of which it is necessary to dissolve the marriage between the parties. Reference was also made to the averments made in para 5 of the reply. Apart from this in the absence of the trial regarding the averments made in para 13 of the reply, the allegations made therein cannot be made the basis for holding that the respondent has treated the appellant with cruelty. The petition under Section 13 is to be decided on the basis of the averments made therein. As such para 13 of the reply cannot be availed of by the appellant for obtaining a decree of divorce.

32. No other point survives for consideration.

33. The end product of the exercise made in the foregoing paragraphs is that the appellant has not been able to make out the grounds under Section 13(1)(ia) and 13(1)(ib) of the Act in respect of which the arguments were addressed to me by the learned Counsel for the appellant.

34. In the result, this appeal has no merit and it is accordingly dismissed. In the facts and circumstances, I direct that the parties will bear their own costs of this appeal.


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