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Smt. Kaushalya Devi Vs. Masat Ram - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtHimachal Pradesh High Court
Decided On
Case NumberF.A.O. No. 71 of 1980
Judge
Reported inAIR1981HP63
ActsHindu Marriage Act, 1955 - Sections 13 and 23; ;Special Marraige Act, 1954 - Section 27
AppellantSmt. Kaushalya Devi
RespondentMasat Ram
Advocates: K.S. Patyal, Adv.
DispositionAppeal allowed
Cases ReferredChhaganlal v. Sakha Devi
Excerpt:
family - dissolution of marriage - hindu marriage act, 1955 - appellant wife of respondent - filed petition for dissolution of marriage - petition dismissed by senior sub-judge - appeal - appellant alleged maltreatment on part of respondent - appeal dismissed by trial court as appellant failed to prove cruelty and petition was filed beyond reasonable delay - appeal - evidence and corroboration of other witnesses brought forward by appellant proved cruelty on part of respondent - no witness brought by respondent - no period of limitation prescribed in act - parties not so well advanced so as to prompt them to come to court of law - no unnecessary or unreasonable delay in seeking relief by appellant - decree for dissolution of marriage passed in favour of appellant. - .....marriage between them. the senior sub-judge, bilaspur (with the powers of district judge under the hindu marriage act) dismissed the petition of the appellant by his order and judgment dated 24th april, 1980.2. aggrieved by the same, the appellant has preferred this appeal, the facts relevant to the case may be stated. the appellant (hereinafter referred to as the petitioner) was married to the respondent on 9th falgun 2026 bk. no child is bora out of the wedlock. according to the petitioner the respondent maltreated her, he used togive her beatings and did not even provide her with clothings and food. ai contended by the petitioner, she was not even allowed to talk or have the company of any one in the village including the women folk. the petitioner lived at the honse of the respondent.....
Judgment:

H.S. Thakur, J.

1. The appellant, who is the wife of the respondent, filed a petition under Section 13 of the Hindu Marriage Act for the dissolution of marriage between them. The Senior Sub-Judge, Bilaspur (with the powers of District Judge under the Hindu Marriage Act) dismissed the petition of the appellant by his order and judgment dated 24th April, 1980.

2. Aggrieved by the same, the appellant has preferred this appeal, The facts relevant to the case may be stated. The appellant (hereinafter referred to as the petitioner) was married to the respondent on 9th Falgun 2026 Bk. No child is bora out of the wedlock. According to the petitioner the respondent maltreated her, he used togive her beatings and did not even provide her with clothings and food. Ai contended by the petitioner, she was not even allowed to talk or have the company of any one in the village including the women folk. The petitioner lived at the honse of the respondent for about one and a half years. Peeling that it was not possible for her to live with the respondent, she came to live with her parents. Some panchayats were held to bring about reconciliation between the parties. The respondent was asked by the members of the panchayat not to give beatings to tbe petitioner. The petitioners (sic --respondents) however, replied that he could give food and clothings to the petitioner, but they had no business to stop him from treating the petitioner in any manner he liked. When the efforts to bring about reconciliation between the parties failed, the petitioner filed a petition for the dissolution of marriage.

3. The trial Court after examining the witnesses of both the parties dismissed the petition on the grounds that the petitioner had not been able to establish cruelty against her and moreover there was also delay in filing the petition. It may be pointed out that on the pleadings of the parties as many as 7 issues were framed, but at the time of arguments, only the issue regarding cruelty was pressed.

4. I have gone through the judgment of the trial Court and have also perused the evidence on record. In Halsbury's Laws of England, cruelty has been defined as under :

'The legal conception of cruelty, which is not defined by statute, is generally described as conduct of such character as to have caused danger to life, limb, or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger.'

It may, however, be noticed that under the Hindu Marriage Act, it is not necessary, as under the English Law, that the cruelty must be of such a character as to cause 'danger' to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Under the Hindu Marriage Act (the Act in short), the marriage would be dissolved if it is proved that the other party has after the solemnisation of the marriage, treated the petitioner with cruelty. As such, danger to life, limb or health or a reasonable apprehension of it, is not the requirement of the Act. The petitioner has appeared as her own witness and has stated that the respondent used to give beatings to her and did not permit her even to talk to any neighbour, a male or female. It is further stated by her that the respondent threatened her that in case she talked to any one she would be put to death. She has also stated in clear words that the respondent gave her beating in the presence of S/Shri Karamu and Kashi, who are the co-villagers of the respondent. Shri Karamu has appeared as a witness and has supported the version of the petitioner. P W 4 is the uncle of the petitioner. He has stated that the father of the petitioner is very old and is not physically capable to walk about. He has further stated that panchayats were held to bring about reconciliation between the parties. The respondent was asked by the members of panchayat that he should give proper food and clothings to the petitioner and also should not give her beatings. In reply thereto the respondent is alleged to have stated that they were not his officers and that he would do what he liked. This fact is corroborated even by P W 5. I have no reason to doubt the testimony of P W 4 who is the uncle of the petitioner. The respondent has also appeared as his own witness and has not chosen to produce any other witness to contradict the allegations of the petitioner. No doubt, he has denied the allegation of cruelty, but admitted that the panchayats were held three times to bring about reconciliation between the parties. It may be relevant to point out that after the petitioner preferred an appeal in this Court, she also filed an application under Section 24 of the Act for her maintenance and expenses of litigation which is registered as C. M. P. No. 1199 of 1980. By an order dated 18-12-1980 the respondent was ordered to pay a sum of Rs. 500/- for the time being. The respondent undertook to deposit the said amount within one month from that date. The amount has, however, not been deposited at all. On that date Shri Ramesh Chand, Advocate, was also representing the respondent. On the subsequent dates as also today neither the respondent is present nor his counsel.

5. After considering the evidence on record, I am of the view that the petitioner has been able to establish cruelty to her by the respondent. The trial Court has observed that the petition was also filed beyond a reasonable delay. I am of the view that the delay in itself is not fatal to the proceedings under the Hindu Marriage Act if any reasonable explanation is given. In proceedings under the Hindu Marriage Act, the question of delay is to be determined according to the nature of allegations and the relief sought. Reference may be made to a decision in Nirmoo v. Nikka Ram (AIR 1968 Delhi 260). It was also a petition for divorce filed by wife. It was observed therein that the determination of the question as to whether there has been any unnecessary or improper delay in instituting the proceedings is important in view of the provisions of Section 23 of the Act and that Clause (d) of Sub-section (1) thereof does not come in the way of passing of the decree if the Court is satisfied that there has not been any unnecessary or improper delay in instituting the same. The learned Judge has also referred to a decision of Delhi High Court wherein it has been held that whether in a given case there had been unnecessary and improper delay in instituting the proceedings has to be decided on its own facts and no hard and fast rule is to be applied. It was pointed out that the Act had not prescribed any period of limitation for presenting a petition and in considering whether there was unnecessary or unreasonable delay in seeking the relief the conditions of the society in which the parties lived, the traditions of the family to which they belonged and the fact that even today considerable sections of the Hindu society look with disfavour the idea of dissolving the marriage had to be kept in view. It cannot be disputed that the people of the area to which the parties belong are not so well advanced so as to prompt them to come to a Court of Law to seek relief in such matters. As such, I am of the view that there has been no unnecessary or unreasonable delay in seeking relief in this case.

6. The learned trial Court has referred to a decision in Chhaganlal v. Sakha Devi (AIR 1975 Raj 8). That was a case for judicial separation on the ground of adultery. In this case there was a delay of four years and was considered to be unreasonable. A case of adultery, however, stands on a different footing than a case for dissolution of marriage on the basis of cruelty.

7. The learned counsel for the appellant has pointed out that the petitioner has a legal right to claim maintenance from the respondent till the time she gets remarried. It is, however, frankly stated by the learned counsel that he has specific instructions from his client that in case a decree for dissolution of marriage is passed in her favour, she would not claim any maintenance from the respondent, even if she remains unmarried. This undertaking given by the petitioner is binding on her.

8. For the foregoing reasons I have no alternative but to allow this appeal. The appeal is accordingly allowed, the order and judgment of the trial Court is set aside and a decree for dissolution of marriage is passed in favour of the petitioner and against the respondent. The parties are, however, left to bear their own costs.


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