Spouse Silence is Cruelty – SC

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 1868 OF 2007

RAVI KUMAR ..Appellant(s)

Versus

JULMIDEVI ..Respondent(s)

J U D G M E N T

GANGULY, J.

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petition under Section 9 as withdrawn, having ended in a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

READ  Divorce on grounds of Cruelty and Desertion

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

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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

READ  Limitations of Sections 498(A)

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
reasonable people.”

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.

(P. SATHASIVAM)

(ASOK KUMAR GANGULY)

New Delhi
February 9, 2010
10

ITEM NO.1B COURT NO.11 SECTION XIV
(For Judgment)

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)

VERSUS

JULMI DEVI Respondent(s)

Date: 09/02/2010 This Appeal was called on for Judgment today.

For Appellant(s)
Mr. Sumit Kumar,Adv.

For Respondent(s)
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 )

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