IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 1868 OF 2007
RAVI KUMAR ..Appellant(s)
J U D G M E N T
1. The husband is in appeal before us impugning the Judgment and Order of the High Court in a Matrimonial Proceeding whereby the Judgment and Order of the District Judge, Mandi in Hindu Marriage Petition No.20 of 2002 dated 27.10.2004 was reversed by the High Court.
2. The marriage between the parties took place on 13.12.1988
according to Hindu rites and customs and in March, 1990 a girl
child was born to them. The husband alleged that after the
birth of the girl child, his wife left for parental house at
village Samlet and spent her period of maternity leave there.
It was further alleged that his wife, who was working, on
being transferred from Garli to Chauaku, stayed at Chauaku
instead of in the matrimonial home which was only at a
distance of 3 Kms. from the place of her posting. However,
the husband admitted that in May, 1994, his wife came to his
house for a short period and stayed there with him till the
month of May, 1994. Thereafter, his wife is alleged to have
permanently deserted him. The further allegation is that in
September, 1996, he tried to bring his wife back to his
residence for staying with him and his old parents but she refused to do so.
3. Ultimately, the appellant filed a proceeding under Section 9
of the Hindu Marriage Act (hereinafter referred to as the Act)
for restitution of conjugal rights and that was contested by
his wife. Ultimately a compromise was arrived at before the
Lok Adalat and the learned Sub-Judge, Sarkaghat presiding over
the Lok Adalat passed an Order on 26-9-1998 treating the said
petition under Section 9 as withdrawn, having ended in a
compromise. The statements of the parties before the Lok
Adalat were recorded and formed part of the decree. The
statements, recorded before the Lok Adalat, may be set out hereinbelow:-
(a) Statement of appellant – Husband Stated that I shall provide room and kitchen for proper living to my wife Julmi Devi and I shall not trouble her in any manner.
(b) Statement of respondent – Wife Stated that I am prepared to live with my husband Shri Ravi Kumar,I shall live with my husband properly.
4. The allegation of the appellant is that his wife did not
comply with the stand taken before the Lok Adalat by residing
with him and continued to stay separately. The appellant,
being frustrated thereby, filed a petition for a decree of
divorce and dissolution of marriage on the grounds of cruelty
and desertion. It was numbered as Petition No.20 of 2002.
5. Initially, the District Judge, Mandi made some unsuccessful
efforts to bring about a reconciliation between the parties.
Then the proceeding was ultimately tried and evidence was
recorded and by a Judgment and an Order dated 27.10.2004, the
learned District Judge granted a decree of divorce which was
challenged by the respondent wife before the High Court and
the High Court reversed the finding of the learned District Judge.
6. While reversing the finding of the learned District Judge, the
High Court acted in exercise of its powers under Section 28 of
the Act. In doing to, the High Court acted as a first Court
of appeal, which is a Court, both on facts and law. The High
Court noted the case of the parties and also the evidence
which was adduced before the Trial Court.
7. Several questions cropped up in the course of hearing before
the High Court. One of them being whether in view of filing of
a proceeding for restitution of conjugal rights, the appellant
had condoned all alleged prior acts of cruelty of the wife.
The High Court after considering some decisions came to a
finding that by filing a petition under Section 9 of the Act,
the appellant had condoned the earlier alleged acts of cruelty
of the respondent wife. Condonation is basically a question of
fact. This Court finds that reasoning of the High Court on
condonation in the facts of this case is correct.
8. After recording the said finding, the High Court noted that
there is no specific allegation by the appellant of wife’s
cruelty and in his deposition also husband does not refer to
any specific instances of cruelty by his wife. In the absence
of such specific allegations, the learned Trial Court was, in
the opinion of the High Court, in error by granting a divorce
on grounds of cruelty.
9. From the petition filed by the appellant husband, it appears
that in paragraph 6 of the said petition, the proceeding under
Section 9 of the Act has been referred to. After the said
paragraph, this Court finds that in paragraphs 7, 8, 9, 10 and
11 there is no specific allegation of cruelty against the
wife. There are some vague allegations but no allegation with
specific particulars has been given about the alleged cruelty
of the respondent wife. No specific case of desertion has been pleaded either.
10. It may be noted only after the amendment of the said Act by
the amending Act 68 of 1976, desertion per se became a ground
for divorce. On the question of desertion, the High Court
held that in order to prove a case of desertion, the party
alleging desertion must not only prove that the other spouse
was living separately but also must prove that there is an
animus deserendi on the part of the wife and the husband must
prove that he has not conducted himself in a way which
furnishes reasonable cause for the wife to stay away from the matrimonial home.
11. Looking to the materials which have come on record in this
case, it is clear that the wife had sufficient ground to live
separately. In this case, the evidence of the daughter is very crucial.
12. The daughter in her evidence categorically stated that her
father used to beat her mother. She denied that her mother
abused her father but she repeatedly deposed that her father
used to beat her mother and the reasons of which are not known to her.
13. It has been argued by the learned counsel for the appellant
that Appellate Court did not have the occasion to appreciate
the demeanour of the witnesses and the High Court acting as a
First Appellate Court ought not to reverse a finding which was
arrived at by the learned Trial Court.
14. It is difficult for this Court to accept the aforesaid
contention. It cannot be disputed that while exercising its
power under Section 28 of the said Act, the High Court, as the
first Court of Appeal is both a Court of Law and also of facts.
15. The power of the Appellate Court as explained in Order 41 Rule
33 of the Civil Procedure Code shows that very wide powers
have been conferred. Commenting on the width of this power,
Mulla (CPC 15th Edn, p. 2647) commented that this rule is
modelled on Order 59, rule 10(4) of the Supreme Court of
Judicature in England. The learned author further commented
that the object of this rule is to empower the appellate court
to do complete justice between the parties.
16. This Court is in respectful agreement with the aforesaid
commentary of Mulla on order 41 Rule 33 with one rider. If
there is a legal interdict, the rule will not apply (See S.
Nazeer Ahmed vs. State Bank of Mysore – (2007) 11 SCC 75 and
which has been followed in Samundra Devi & Ors. vs. Narendra
Kaur & Ors.- AIR 2008 SC 3205 at para 19, p 3208).
17. Therefore, in exercise of its power, the First Appellate Court
can come to a finding different from the one which has been
arrived at by the Trial Court especially in a case where
appreciation of evidence by the Trial Court is not proper. In
the instant case, this Court finds that Trial Court has not
properly appreciated the evidence of the child. It may be
noticed here that the evidence of the child is very vital in
the facts and circumstances of this case of matrimonial
discord. In this case the child has clearly stated the
cruelty of the appellant-husband towards his wife. Therefore,
there is sufficient reason for the wife to stay apart. Under
such circumstances one cannot say the wife is guilty of either
cruelty or desertion.
18. It may be true that there is no definition of cruelty under
the said Act. Actually such a definition is not possible. In
matrimonial relationship, cruelty would obviously mean absence
of mutual respect and understanding between the spouses which
embitters the relationship and often leads to various
outbursts of behaviour which can be termed as cruelty.
Sometime cruelty in a matrimonial relationship may take the
form of violence, some time it may take a different form. At
times, it may be just an attitude or an approach. Silence in
some situations may amount to cruelty. Therefore, cruelty in
matrimonial behaviour defies any definition and its category
can never be closed. Whether husband is cruel to his wife or
the wife is cruel to her husband has to be ascertained and
judged by taking into account the entire facts and
circumstances of the given case and not by any pre-determined
rigid formula. Cruelty in matrimonial cases can be of infinite
variety it may be subtle or even brutal and may be by
gestures and words. That possibly explains why Lord Denning
in Sheldon vs. Sheldon, [(1966) 2 All E.R. 257] held that
categories of cruelty in matrimonial cases are never closed.
19. This Court is reminded of what was said by Lord Reid in Gollins vs. Gollins [(1963) 2 All. E.R. 966] about judging cruelty in matrimonial cases. The pertinent observations are:
“In matrimonial cases we are not concerned with the
reasonable man, as we are in cases of negligence. We
are dealing with this man and this woman and the fewer
a priori assumptions we make about them the better. In
cruelty cases one can hardly ever 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
20. The aforesaid passage was quoted with approval by this Court in Dastane vs. Dastane [(1975) 2 SCC 326]. About changing perception of cruelty in matrimonial cases, this Court observed in Shobha Rani vs. Madhukar Reddi – AIR 1988 SC 121 at page 123 of the report:
“It will be necessary to bear in mind that there has
been a marked change in the life around us. In
matrimonial duties and responsibilities in particular,
we find a sea change. They are of varying degrees from
house to house or person to person. Therefore, when a
spouse makes complaint about the treatment of cruelty
by the partner in life or relations, the court should
not search for standard in life. A set of facts
stigmatised as cruelty in one case may not be so in
another case. The cruelty alleged may largely depend
upon the type of life the parties are accustomed to or
their economic and social conditions. It may also
depend upon their culture and human values to which
they attach importance. We, the judges and lawyers,
therefore, should not import our own notions of life.
We may not go in parallel with them. There may be a
generation gap between us and the parties”.
21. For the reasons aforesaid, this Court does not find any reason to interfere with the judgment of the High court.
22. The appeal is dismissed. The parties are to bear their own costs.
(ASOK KUMAR GANGULY)
February 9, 2010
ITEM NO.1B COURT NO.11 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO(s). 1868 OF 2007
RAVI KUMAR Appellant (s)
JULMI DEVI Respondent(s)
Date: 09/02/2010 This Appeal was called on for Judgment today.
Mr. Sumit Kumar,Adv.
Mr. Balraj Dewan,Adv.
Hon’ble Mr.Justice Asok Kumar Ganguly pronounced the Judgment of the Bench comprising Hon’ble Mr.Justice P.Sathasivam and His Lordship.
The appeal is dismissed in terms of the signed Judgment. The parties are to bear their own costs.
(Satish K.Yadav) (Phoolan Wati Arora)
Court Master Court Master
( Signed reportable Judgment is placed on the file )