Court:MADHYA PRADESH HIGH COURT
Bench: JUSTICE K.L. Shrivastava
USHA Vs. VIMAL KUMAR On 5 January 1987
Section 13(1)(ia) — Husband’s petition for divorce on wife’s cruelty — Wife asked to accompany husband and engaged herself in a scuffle with him and also slapped him — Altercation seen by witness — Her behaviour with members of his family not proper. Divorce granted to husband on ground of cruelty.
This appeal under sec. 28 Hindu Marriage Act, 1955 (For short ‘the Act’) is directed against the Judgment and decree dated 8.10.85 passed y the Addl. Judge to the District Judge, Mandsaur at Neemuch, in C.S. No. 35 of 83.
2. It is not in dispute that the parties are Hindus and they were united in wedlock in 1974. For about a year they resided together at Manasa. Thereafter the appellant has been residing away from her Husband’s home and is in service. In April 1982 the respondent’s younger brother had come to her. Later the respondent served her with a notice dated 7.10.82 (vide Ex. P/1) which she has replied by the notice dated 22.10.82 (vide Ex. D/1).
3. The respondent instituted the aforesaid suit on the ground that all along the appellant had been residing with him, her behaviour with the persons of his family was not proper. She used to disobey his mother and she had subjected her to unbecoming behaviour. The respondent tried to explain matters to her but to no use. They somehow pulled on for some time and then she left his home. In 1975 they had occasion to meet and then she had declined to come with him and had indulged in marpit and had also threatened to kill him. His attempts to bring her back home have proved abortive. According to him, she has deserted him for a continuous period of more than two years immediately preceding the presentation of the petition, and she treated him with cruelty and hence the suit.
4. The appellant resisted the suit stating that she herself was subjected to illtreatment and cruelty and it is for this reason that perforce she had to take up service on daily wages. According to her, Gopal had been sent to her to pave the way for dissolution of marriage.
5. The point for consideration is whether the appeal deserves to be allowed.
6. The grounds on which the respondents claim in suit is founded are enumerated in section 13 (1) (i-a) and (i-b) in these terms : —
13. “Divorce.-(1) Any marriage solemnized, whether before or after the commencement of this Act, may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—
(i) has, ————, or
(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty or
(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition, or—-——”
It may be noted that the provision as to cruelty has been made a ground for divorce by amending the Act by Act No. 68 of 1976 with effect from 27.5.1976 is not qualified by any words of limitations. The Legislature has intentionally avoided to emplicitly spell out the definition of the word “cruelty” and the duration and frequency of the conduct to establish cruelty. The words “treated with cruelty”, imply harsh conduct of a certain intensity and persistence. In short, the words “treated the petitioner with cruelty” would mean and imply harsh conduct of such intensity and persistence which would make it almost impossible to operate the marriage. The Legislature has left it to the courts to determine on the facts of each case whether the conduct amounts to cruelty and while deciding case, under this provision, courts would keep in mind the principle that relief is granted not only to protect a spouse from physical injury but also from danger to mental health.
7. The value of marriage as on institution for the well being of society cannot be over-emphasised. However, where it is almost impossible to operate it, the law provides for its dissolution. As pointed out in Mahendra Babu’s case, 1982 MPWN 179, particulars of cruelty have to be pleaded and proved.
8. Cruelty has not been defined in the Act. It is certainly not restricted to physical cruelty as pointed out in the decision in Smt. Kalpana Shrivastava v. Surendranath Shrivastava, 1985 All. 253. Words, at times, do cause more damage than physical violence.
9. In the Full Bench decision in Jia Lal Abrol v. Sarla Devi, AIR 1978 J & K 69, it has been pointed out that it cannot be safely laid down that element of intention is a sine qua non for establishing or rejecting a case for judicial separation or divorce on the ground of cruelty and the question has to be determined on consideration of entirely of fact and circumstances of the particular case including the culture, temperament and status in life of the parties and many other factors. Where one of the parties to the marriage tie-indulges in reprehensible conduct and departs from the normal standards of conjugal kindness a finding of cruelty against it, may be recorded. Where intention to be cruel can be found as a fact the importance of its relevance cannot, however, be denied.
10. In the decision in Chunnilal’s case, 1984 MPWN 315, it has been pointed out that in relation to the ground of desertion the burden of proving the “factum” as well as the “animus deserendi“ is on the petitioner. In the decision in Dinesh Mishra’s case, 1985 MPWN 430, where the wife had denied her society to the husband for a pretty long time, the High Court had modified the judgment and decree of judicial separation and had passed a decree for divorce.
11. In this case the version of respondent as P. W. 1 is that when in 1975 he had occasion to meet her and had then directed her to accompany him, she had refused to do so and had engaged herself in a scuffle with him and had also slapped him. The appellant has denied to have done so. The respondents version finds some corroboration in the testimony of Nemichand P.W. 3 who has stated that the respondent had complained to him that the appellant had slapped him. The witness has further stated that he had himself seen that there was altercation between the parties.
12. The testimony of Gopal P.W. 6, the younger brother of respondent is that he had been to the appellant to fetch her home but she had refused to accompany him saying that she was serving. The appellant’s evidence is that through her relative Sohanlal she had tried to reside with her husband but she was not allowed to do so. The appellant has not examined Sohanlal to corroborate this self-serving version.
13. Though the appellant had admitted participation of the appellant in the ceremony connected with the death of the father of Surajmal D.W 2 who is no other than the husband of her elder sister, the said Surajmal has, however, denied any such participation of the respondent. Satnarayan D.W. 3 is also the appellant’s sister’s husband. According to him he had taken the appellant to her husband’s home at Manase and had stayed with one Sohanlal there. As already pointed out Sohanlal has not been examined and the appellant’s reply notice Ex. D/1 is also significantly silent on this point.
14. Learned lower Court has rightly found that the evidence adduced by the respondent is weighty and trust-worthy as compared to the interested evidence adduced by the appellant.
15. From the evidence on record it is clear that in 1977 the appellant without seeking her husband’s approval had been to Bhopal for training and thereafter is in service. All this is clearly indicative of the fact that at a very early stage she had taken a decision to live away from the conjugal home.
16. There is nothing reliable to hold that the respondent was in any way instrumental in the appellant leaving the conjugal home. It is pertinent to point out that till the respondent served her with a notice (vide Ex. P/1) she had kept quiet. If the respondent, from the very inception, had any motive of divorcing her and of remarrying he could have instituted the suit much earlier. It is clear that he instituted the suit in 1983 when he found that there is no possibility of the petitioner returning to the conjugal home. His refusal how to live with her is, in the circumstances more than justified. It is certainly not reasonable to require the respondent to live in the appellant’s company. It would be denial of justice to him to keep the marriage, subsisting. The facts and circumstances of the decision in Manjulata’s case, 1982 MPWN 480, are clearly distinguishable.
17. On a careful consideration of the material on record and the relevant provisions including those in section 23 of the Act. I find that the learned lower Court, with reference to decision in Mahendra Babu v. Smt. Usha (supra) has rightly held that the appellant has been guilty, of cruelty, to the respondent and that she has also deserted him thereby furnishing him with the grounds for divorce. The conclusions reached at by the learned lower Court are on firm foundation and are not liable to be interfered with.
18. In the result the appeal fails and is dismissed with no order as to costs.