Court:DELHI HIGH COURT
Bench: JUSTICE D.K. Kapur
DAYA WATI Vs. RAJ SINGH On
Cold indifference like not visiting the hospitalized husband amounts to cruelty.
The respondent-husband Lt. Raj Singh Mathur has applied for divorce under Section 13 of the Hindu Marriage Act, 1955, on the ground of cruelty as well as the ground of desertion without reasonable cause. The conclusion of the learned Additional District Judge was to grant divorce on the ground of cruelty on material I will presently refer to, but to refuse divorce on the ground of desertion on the footing that the desertion was not for a continuous period of two years. On the point of desertion, the finding was that the petition was pre-mature, but the period of desertion of two years did elapse during the pendency of the petition.
2. The facts of the case can shortly be stated. The parties were married on 17th February, 1973, on 1st March, 1973, the husband left for duty as an Army Officer. A male child was born to the parties on 23rd November, 1973. According to the husband, the wife went back to her parent’s home on 4th March, 1973, after he went on duty. Although the petitioner was ill at Bhatinda with the result that he was removed to the Military Hospital, Ferozepur, the wife did not visit him at Ferozepur. Later in April 1973, the husband had an accident which made him an in-door patient at the Military Hospital, Delhi, but the respondent did not care to see him. Then the husband obtained family accommodation in Chandi Mandir in June, 1974, but the wife did not join him inspite of repeated requests. The husband had visited his home town on leave in April 1975 August 1975 and April, 1976, but the wife had avoided him on some pretext or the other. It appears that the wife wanted the husband to live separately from his parents to which he did not agree with the result that she came to the matrimonial home sometimes and left the home as she liked and finally on 13th October, 1976, she deserted him leaving behind the son aged three years. The wife filed a petition for judicial separation on 15th October 1976, on the ground of cruelty, but this was dismissed on 5th July, 1978’ It was also claimed that the wife had written derogatory letters concerning the husband to his senior officers and also made complaints about him hence, it was claimed that there was cruelty and desertion. As may be noticed, the desertion was alleged on 13th October, 1976 and the petition was filed on 23rd August, 1978, i.e., over two years had not elapsed from the date of desertion.
3. The wife’s case was that she went home as was customary after the husband went back on duty, but nobody had come to fetch her. She claimed that she lived at her parents house; and that she went back to the petitioner’s parents and did not visit her own parents’ house because she was restrained from going outside the matrimonial home. It appears that she had learnt of the husband’s illness at Bhatinda but nobody had visited him. However, she denied that the husband had met with an accident in April, 1973 which led to him being admitted in the Military Hospital at Delhi She did not say anything about going to Chandi Mandir. She alleged that after the birth of a male child, the husband was quite indifferent to her and thus she had gone to her parent’s to live there. She had, off and on, at various times, gone to live at the house of the parents of the husband, but then difficulties had forced her to leave. She had last gone in February/ March, 1976, but had to return on 13th October, 1976. It was her case that she had been forced to file a petition for judicial separation in the above circumstances.
4. In view of the conclusion of the learned Additional District Judge that the marriage had to be dissolved on account of cruelty, the wife has appealed and learned counsel, Mr. Bhargava has very rightly urged that many of the grounds raised in the petition have become redundant as there was resumption of cohabitation. In fact, whatever the conduct of the wife may be, it is urged that once it is established that up to October, 1976, the wife continued to live in the husband’s home, though off and on, it may be stated that the resumption of cohabitation ends the cruelty. I am not satisfied that this is the state of law. Cruelty may consist of an act or series of acts which may take place in a short span of time or a long span of time. During the period of cruelty, the husband and the wife have to be together, otherwise there can be no cruelty. As living together as husband and wife constitutes cohabitation we cannot be forced into the view that all acts of cruelty are condoned during the period when the husband and wife live together. There has to be a positive act of forgiveness which would end the cause for divorce. But Mr. Bhargava urges the converse and relies on the judgment of the Supreme Court in Dr. N.G. Dastane v. Mrs. S. Dastane, I (1981) DMC 293 (SC), so some analysis is necessary regarding this judgment. It would appear on the contention of Mr. Bhargava that all acts prior to desertion would stand condoned and there can be no cruelty afterwards. So, the petition cannot succeed on the ground of cruelty. I have examined the aforementioned judgment of the Supreme Court in the light of the fact that it was there held that even if condonation was not pleaded, it was the Court’s duty to find out whether cruelty was condoned. It was held that condonation means forgiveness of the matrimonial offence and the restoration of the offending spouse to the same position as he or she occupied before the offence was committed. It was pointed out that condonation of two positive acts— forgiveness and restoration. Mr. Bhargava has rightly placed great emphasis on this because the facts of the case show that upto October, 1976, the wife continued to live in the husband’s house. Can it, therefore, be said that there is condonation of cruelty within the ratio of the Supreme Court’s judgment in Dastane’s case. As I have already pointed out, it cannot be held that wherever there is cruelty and the husband and wife continue to live together, it amounts to condonation. I quote from the Supreme Court’s judgment :-
“Cruelty, generally, does not consist of a single, isolated act but consists in most cases of a series of acts spread over a period of time. Law does not require that at the first appearance of a cruel act, the other spouse must leave the matrimonial home lest the continued cohabitation be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the benign purpose of marriage laws.”
5. The analysis by the Court then continued on the basis that the spouses continued to live in intimacy leading to a normal sexual life uninfluenced by the conduct of the offending spouse. It was not a case in which there was a stray act of sexual intercourse after cruelty, but a resumption of cohabitation and intimacy characteristic of normal matrimonial relationship. In fact, an analysis of the facts in Dastane’s case shows that the cruelty was of an unusual type, and then it appears that there was a real reconciliation between the parties. The present case is not of that type at all. In this case, for one thing, the husband is a serving Army Officer who only comes to his home for leave periods. If we consider that the marriage took place in 1973 and the husband was home on leave only in April 1975, August 1975 and April, 1976, for short periods, he does not seem to have had much scope for reconciliation in this case. In October, 1976, the appellant had already left the matrimonial home. In the case of a serving Army Officer the only way in which the parties could have lived a normal life would have been if the wife had joined the husband wherever he was posted. The cruelty, therefore, in this case is that of cold indifference. It appears as if the wife never wished to leave her home village and this cannot be considered to be a case of the type narrated in Dastane’s case, where the cruelty was of a violent and more or less of mental type. What constitutes cruelty must vary from case to case. The circumstances of this case are so strikingly different with the husband living hundreds of miles away wanting the wife to join him in family quarters at Chandi Mandir and the wife continuing to live in the home village. Furthermore, the indifference of the wife towards the husband when he was in the hospital can also be considered to be part and parcel of the indifference she indicated.
6. It may be pointed out that if the wife continues to live in the matrimonial home when the husband is posted out, then it becomes a question of the wife living with her in-laws and normally in such circumstances friction and differences exist. Even the birth of the child has not solved the problem. I have examined the case closely to find out if I can possibly apply the principle of condonation and I am unable to find if there was any forgiveness or restoration in this case. It appears to me that the question of restoration, which in the case before the Supreme Court consisted of resumption of sexual intercourse, has never been brought about in this case. Rather, I am of the view that this marriage was not a success at all from the very beginning. It is not, therefore, possible to apply the ratio of Dastane’s case to the circumstances of this case. It is, in a sense, regrettable that this situation has happened to a large extent due to the husband himself. He may have taken some positive action to take the wife along with him to wherever he was posted. It also appears that the in-laws and other relations ‘ of the husband did not behave properly towards the wife. According to her, she was treated almost as a servant in the house made to domestic work. Some relations of the husband, i.e., father’s sister and her children used to give her beating and she was not given proper food. It was also alleged that there was condonation of cruelty in as much as in the previous desertion case brought by the wife, Shri R.K. Sain, Additional District Judge, had ordered her to go and live with her husband and she did so for three months, but the husband had only come for one week. Then, he again came on leave and brought her to the Court of Shri R.K. Sain. She claimed that the husband had gone back on duty and she was turned out of the matrimonial home. This was not pleaded in the written statement, nor apparently did she continue her judicial separation application which was dismissed on 5th July, 1978. It thus appears that there was no attempt to reconciliation which had led her to go back to the matrimonial home for a period of three months or so.
7. In the circumstances, I also agree with the learned Additional District Judge that this is a case in which cruelty has been established and there has been no condonation in spite of the attempt at reconciliation. There is no forgiveness and restoration within the meaning of the words used in the Supreme Court’s judgment aforementioned. The acts of cruelty and indifference narrated by the husband do constitute cruelty and is a case in which dissolution of marriage should be ordered. I would, therefore, affirm the Additional District Judge’s judgment and only refer to the fact that it was held in Rajinder Singh Joon v. Smt. Tara Wati, 17 (1980) DLT 295, by Avadh Behari J. that a wife not caring to see her seriously injured husband in hospital does constitute an act of cruelty. This is only one of the points arising in this case.
8. I would accordingly dismiss the appeal, but leave the parties to bear their own costs.