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Govanji Vs. Smt. Kaduva - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Appeal No. 94 of 1984
Judge
Reported in1985WLN(UC)307
AppellantGovanji
RespondentSmt. Kaduva
DispositionAppeal dismissed
Cases ReferredSmt. Saroj Rani v. Sudarshan Kumar Chhadda
Excerpt:
.....other mental. in a case of physical cruelty, there can be tangible and oral evidence from which charge of cruelty can be made out. as regards the cruelty of corporeal nature its effects is to be seen on the mind of the spouse who has filed a petition for divorce on the allegations of cruelty.;(c) hindu marriage act, 1955 - section 13--divorce--wife stating instances of physical assault and apprehensive of injury to her in future--held, it can reasonably be believed that marriage has broken and it would be better to close chapter;the petitioner gave instance of cruelty and proved physical assault that the conduct of the respondent was such which had given reasonable cause of apprehension of injury to body and health in future also. it is a case where it can reasonably be believed that..........590. these authorities have been cited to prove that allegations should be specific and that the charge of cruelty should be examined in the light of some complaints, if made, during the period the wife remained with the husband.5. mr. m.c. bhandari, learned counsel for the respondent, has submitted that in this case, there is no defect in pleadings, there is no contradictions in the statement of various witnesses and that the petitioner has been able to prove the charge of cruelty. he has also put reliance on smt. saroj rani v. sudarshan kumar chhadda 1985 uj(sc) 146, on the basis of this authority the learned counsel submits that it is a case where the marriage is broken down and the parties can no longer live as husband and wife, and, in such circumstances it would be better to.....
Judgment:

Panna Chand Jain, J.

1. This appeal has been directed against the Judgment and Decree dated 24th April, 1984, passed by the District Judge, Doongarpur, in Civil Misc. Case No. 15/82 by which the marriage between the appellant and respondent was dissolved by a decree for divorce on the ground of cruelty.

2. Briefly stated the facts of the case are that parties were married at Upargaon District Doongarpur, according to the Hindu custom. The petitioner is the wife, she alleged against her husband that on a number of occasions he has given beating and treated her with cruelty. He also turned her out from the house and thereafter did not take any care of her. Thus, the petitioner has based her petition for divorce on the ground of cruelty and desertion. In reply, the husband contended that the allegations levelled against him by the wife are false and frivolous and he never gave any beating to her. He pleaded that her father Memji wanted to give her in 'Nata' for purpose of personal gains. The learned Trial Court framed issues regarding cruelty and desertion. Both the parties lead evidence. Petitioner examined herself and produced Memji AW 2 and Thawara AW 3. Non-Petitioner husband examined himself and produced Gangji NW 2 and Bhalji NW 3 and Govind Ram NW 4. After appreciating the entire evidence on record and seeing that no reconciliation was possible, the learned District Judge gave a finding that the Non petitioner is guilty of cruelty and accordingly a decree of divorce was granted.

3. Aggrieved by the judgment and decree passed by the learned District Judge, Doongarpur, the Non-petitioner has preferred this appeal.

4. Mr. Suresh Shrimali, learned counsel for the appellant, has submitted that the pleadings of the petitioner are defective in as much as particulars regarding various acts of cruelty have not been given neither dates nor time or place has been mentioned. He has also submitted that even it has not been pleaded that the alleged acts had given any reasonable apprehension to the wife for any danger to her life. He has relied on number of authorities to substantiate his contention. Placing reliance on Sulekha Baragi v. Kamla Kanta Daragi 1981 (1) DMC 217, he submits that in a case for divorce on the ground of cruelty, the petitioner is required to prove cruelty of the nature which gives rise to a reasonable apprehension in his mind, that it would be harmful and injurious to life. He also relied upon Dervan v. Dervan 1981 (2) DMC, 12. To substantiate that a case of cruelty cannot be made out on the strength of general evidence. To the same effect is the authority of Suresh Kumari Gulathi v. Suman Gulathi 1981(1) DMC 398, wherein also it has been observed by the Court that it should be pleaded that acts of cruelty were harmful or injurious to body, mind or health of the petitioner. He has also put reliance on Jeetu v. Ram Murthi 1980 HLR 516. Jeet Ram v. Chanoo 1981 HLR 180 and also on Darshan Singh v. Amarjeet Kaur 1977 HLR 590. These authorities have been cited to prove that allegations should be specific and that the charge of cruelty should be examined in the light of some complaints, if made, during the period the wife remained with the husband.

5. Mr. M.C. Bhandari, learned counsel for the Respondent, has submitted that in this case, there is no defect in pleadings, there is no contradictions in the statement of various witnesses and that the Petitioner has been able to prove the charge of cruelty. He has also put reliance on Smt. Saroj Rani v. Sudarshan Kumar Chhadda 1985 UJ(SC) 146, on the basis of this authority the learned counsel submits that it is a case where the marriage is broken down and the parties can no longer live as husband and wife, and, in such circumstances it would be better to close the chapter.

6. I have given my thoughful consideration to the respective contentions made by the learned counsel for the parties. It is true that in a case of divorce based on charge of cruelty, the pleadings should be specific and the charge of cruelty should be proved on the basis of reliable evidence. If the case is examined in the light of law of pleadings, it can certainly be said that there is wishper of the allegations of cruelty in the pleadings, and, that the petitioner has been able to prove the charge of cruelty against the husband. The statement of petitioner, though, was lacking in some particulars in the examination in chief but it was covered up on in the cross-examination, that is to say, in the statement as such she has clearly deposed that she was beaten by her husbands, once she was rescued by her husband's brother and at another occasion it was Thawara who came to her rescue. She has even deposed that she was beaten by a stick and the beating was so severe that blood oozed out from her head, and, that she was given treatment in the hospital at Khera. Her statement was corroborated by her father who has deposed that Govanji the husband of her daughter used to give beating to his daughter and once she was treated in the hospital for her injuries. Thawara AW 3 also corroborated the testimony of Kaduva the petitioner. This witness has deposed that even in his presence Govanji, the Non-petitioner, gave a stick blow which fell on his head and shoulder. As against there is practical no rebuttal of the respondent. Even the appellant has not denied in any specific words, various allegations made by the petitioner wife in her statement. The other witness also in no way improves the case of the husband.

7. In criminal trial the concept of proof beyond the shadow of doubt is required but such a standard of proof is neither required in civil matters and nor in the matters which related to the delicate personal relationship of the parties as husband and wife. The Court is required to appreciate the evidence and to see probabilities in a case. The charge of legal cruelty has to be found out not from the fact on record but the court should infer it from the effect on the mind of the complaining spouse. The cruelty may be classified under two heads, one may be corporeal and other mental. In a case of physical cruelty, there can be tangible and oral evidence from which charge of cruelty can be made out. As regards the cruelty of corporeal nature its effect is to be seen on the mind of the spouse who has filed a petition for divorce on the allegations of cruelty. In this case, from the direct evidence of the petitioner herself corroborated by the evidence of other witnesses charge of cruelty is clearly established Even in this case, it has been established by the petitioner that she had apprehension of danger to her life if she be allowed to live with the husband. In the cross-examination, a question was put to her if she could live with her husband in case her husband gives her assurance that he would not give any beating to her. Her reply was very categorical and convincing that she is not prepared to live as she has apprehension of danger to her life. In view of this statement of the petitioner which has not been assailed a charge of cruelty stands established. The rulings referred to by the learned counsel for the petitioner can be distinguished as in this case the petitioner gave instance of cruelty and proved physical assault that the conduct of the respondent was such which had given reasonable cause of apprehension of injury to body and health in future also. In this view of the matter, I am of the opinion that the finding given by the learned lower Court regarding the charge of cruelty is absolutely correct and taking into consideration, it is a case where it can reasonably be believed that the marriage between the petitioner and non-petitioner has broken down and parties can no longer live as husband and wife and the circumstances lead to believe that it would be better to close the chapter.

8. The appeal has no merit and the same is dismissed without any order as to costs.


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