HC uphold grounds of cruelty – Divorce

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 06.07.2010
Judgment delivered on: 18.8.2010
FAO 443/2000

RENU BALA ……Appellant
Through: Mr.Sanjeev Sindhwani, Adv.
Vs.
JAGDEEP CHILLER ……Respondent
Through: Mr.Rajesh Kalra and Mr.Anuj Soni, Adv.

CORAM:HON’BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes

KAILASH GAMBHIR, J.

1. By this appeal filed under Section 28 of the Hindu Marriage Act, 1955 the appellant seeks to challenge the impugned judgment and decree dated 24.10.2000, whereby the learned trial court has passed a decree of divorce on the ground of cruelty and desertion under Section 13 (1) (ia) and 13 (1) (ib) of the Hindu Marriage Act, 1955. The main grounds to assail the findings of the learned trial court taken in the present appeal inter alia are that the appellant was turned out of her matrimonial home in three wearings after she was mercilessly beaten by the respondent husband and this aspect was completely ignored by the learned trial court; the learned trial court also misread the evidence and assumed certain evidence which in fact does not exist; the allegations leveled by the petitioner husband in the divorce petition are contrary to the stand taken by him in his petition filed under Section 9 of the Hindu Marriage Act; the respondent husband had started creating evidence in his favour after a complaint was filed by the father of the appellant against him with the concerned police station; the learned trial court wrongly placed reliance on the FIR and the MLC, which documents could not be proved by the respondent in accordance with law; no specific allegations of cruelty were leveled by the respondent against the appellant till the date she remained in the matrimonial home; the plea of the respondent that he was given assurance by the appellant that she would come and join the matrimonial home is palpably false as the appellant had appeared before the concerned court to contest the petition filed by the respondent under Section 9 of the Hindu Marriage Act while the respondent chose not to appear on two dates which ultimately led to the dismissal of the said petition; the appellant never refused to join the company of the respondent and therefore the respondent miserably failed to prove one of the essential ingredients, „animus deserendi? to prove the ground of desertion; the appellant on the other hand successfully proved that she left the matrimonial home due to merciless beatings given by the respondent husband, therefore by granting a decree of divorce in favour of the respondent, the learned trial court has given advantage to the respondent husband to take benefit of his own wrongs. Broadly on the above mentioned grounds the appellant seeks to impugn the said judgment and decree.

2. Mr. Sanjeev Sindhwani, counsel for the appellant submitted that the respondent has failed to prove either the ground of cruelty or desertion on the part of the appellant. So far the ground of desertion is concerned, the counsel contended that the respondent failed to establish or prove on record that the appellant intended to permanently bring to an end the cohabitation between the parties and hence the respondent has failed to prove the essential ingredient of animus deserendi. Counsel also submitted that it is the respondent who forced the appellant to leave the matrimonial home on 15.09.1991 after being severely beaten by him. Counsel further urged that by filing a petition under Section 9 of the Hindu Marriage Act seeking restoration of Conjugal Rights, the respondent has not only condoned the alleged acts of cruelty on the part of the appellant but in fact has also condoned the alleged act of desertion on her part. In support of his argument, counsel for the appellant placed reliance on the judgment of the Division Bench of the Himachal Pradesh High Court in the case of Nirmala Devi Vs. Ved Prakash AIR 1993 HP 1 with special emphasis on paras 5, 8, 10, 11 & 13. Counsel also invited attention of this Court to Section 23 sub section (1) of the Hindu Marriage Act to support his argument that under sub section (b) of Section 23 (1) wherein reference has been made to clause (1) of Section 13, the same does not merely refer to 13 (1) (ia) but also to (ib) of Section 13(1) and therefore the condonation aspect is to be considered not only vis-à-vis ground of cruelty but for desertion as well.

3. Mr. Sindhwani further submitted that merely registration of an FIR against the brother and father of the appellant cannot be taken as an admission of the alleged acts attributed to them so far the appellant is concerned. Counsel also submitted that the findings of the criminal court would not bind the civil court. Counsel also submitted that nowhere either in the pleadings or in the evidence it was proved that the alleged beatings by the brother and family members of the appellant were at the behest of the appellant and in para 59 & 60 of the impugned judgment the trial court has wrongly observed that the said traumatic events were suffered by the husband at the hands of the wife and her family members who had acted at the behest of the appellant. The contention of the counsel was that these cruel acts, so far as the appellant is concerned, are not attributable to her but against the brother of the appellant and his friends who have been alleged to have kidnapped and beaten the respondent.

Counsel further argued that merely because in the crossexamination of the PW 1 the amount of dowry as demanded was not correctly suggested, that by itself could not belie raising of the demand by the respondent. The contention of the counsel was that the appellant in her examination-in-chief clearly deposed that a demand of Rs.50,000/- was raised by the respondent and she was told that she would be permitted to live in the matrimonial home only if her father paid the said amount to him. The said deposition of the appellant was strictly as per the case set up by her in her pleadings and therefore even if in the cross-examination of the respondent, due to some inadvertence, wrong figure of Rs.1,00,000/- was suggested to him, the same cannot be construed to mean that no demand was raised by the respondent. Finding another illegality in the impugned judgment, the counsel submitted that the Ld. Trial Court gave undue weightage to the different date given by the RW2, father of the appellant in his evidence of her leaving the matrimonial house, although the appellant herself was consistent in disclosing only one date i.e. 15.09.1991 of leaving the matrimonial home.

4. Assailing the findings of the trial court on cruelty, Mr. Sindhwani submitted that the allegations of cruelty leveled by the respondent husband are vague and general in nature and the same are not in conformity with the rules framed by the High Court under the Hindu Marriage Act. 5. Counsel also submitted that in para 37 of the impugned judgment, the learned trial court has wrongly attributed certain statement coming from the deposition of PW-1 while in fact no such statement was made by PW-1 in his entire deposition. He referred to para 15 of the impugned judgment to submit that nowhere in the evidence it was proved on record that the new residence was set up by the respondent husband to pacify the appellant wife. The contention of the counsel for the appellant was that there is an uncorroborated statement of the respondent husband on one hand and of the appellant on the other hand, but without disclosing any valid reason, the learned trial court has believed the version of the respondent husband and not that of the appellant wife. Counsel also submitted that no case of abduction was made out on record and therefore the learned trial court has made wrong observation in para 51 of the judgment that abduction of master Rajat from the custody of the husband caused mental agony to him. The contention of the counsel was that master Rajat was about 11 months old on the date of the alleged abduction i.e. 01.11.1991, and admittedly, the appellant wife was not living with the respondent husband, therefore, clearly as per the respondent husband 11 months old child was alone at the house which is highly improbable. Counsel further submitted that the respondent husband stated that he was informed by a neighbour about the said fact of abduction of the child but no such neighbour was produced in the witness box. Counsel thus submitted that this theory of abduction has been coined by the respondent to attribute cruelty on the part of the appellant wife. Counsel also submitted that even otherwise it was a hearsay version and the same cannot be admissible in evidence.

6. Mr. Sindhwani further submitted that the trial court wrongly observed in para 52 of the impugned judgment, that the FIR and MLC were proved on record. The contention of the counsel was that neither the FIR nor the MLC were proved by the respondent as neither any witness from the police was produced to prove the FIR nor the concerned Doctor was produced to prove the MLC. Counsel further submitted that the court below gave further incorrect finding that these documents were not disputed by the appellant. Referring to para 52 of the judgment, counsel submitted that again the court made certain observations without the backing of the evidence on record as the appellant was never confronted with any such suggestions referred to in the said para.

7. Mr. Sindhwani referred to para 55 of the judgment and submitted that simply because the father of the appellant did not corroborate the version of the appellant with regard to the acts of cruelty committed by the respondent husband, the same cannot lead to an inference that no such act of cruelty was committed by the respondent qua the wife. Counsel also submitted that simply because no complaint was lodged by the wife with the dowry cell also would not lead to infer that no acts of cruelty were committed by the respondent upon her. Counsel also submitted that trial court again wrongly held against the appellant because she did not produce the letters written by her to her father informing him about the physical assault by the husband or because the father did not depose about such physical assault in his own deposition.

In support of his arguments, counsel placed reliance on the following judgments:-
1. Shivakumar v. Premavathi AIR 2004 Karnataka 146
2. Savitri Pandey v. Prem Chandra Pandey (2002) 2 SCC 73 8. Refuting the arguments of Mr. Sindhwani, Mr. Rajesh Kalra, counsel for the respondent husband submitted that the learned trial court has gone into each and every aspect of the case set up by the parties and no illegality or perversity can be found in the same. Supporting the impugned judgment, counsel contended that the respondent husband has placed on record the facts in detail in his petition clearly disclosing various acts of cruelty committed by the appellant wife as envisaged under Section 13(1) (ia) of the Hindu Marriage Act and also sufficient grounds to attract the ground of desertion under Section 13(1)(ib) of the said Act. On desertion, counsel for the respondent contended that without there being any lawful excuse or reasons or for no fault on the part of the respondent, the appellant deserted the respondent on 10.9.91 in his absence and on the said very date the appellant intended to bring the matrimonial relation to an end. Counsel further contended that the appellant failed to join the respondent despite various attempts made by him and the respondent did not succeed even despite filing of the petition under Section 9 of the Hindu Marriage Act seeking restoration of conjugal rights. Countering the arguments of Mr. Sindhwani, counsel for the respondent contended that the appearance of the appellant in Section 9 proceedings without offering to join the company of the respondent itself would demonstrate the intentions of the appellant wife who did not offer to join the matrimony and instead preferred to move an application under Section 24 of the Hindu Marriage Act. Counsel thus argued that the respondent successfully proved the fact of separation by the appellant on 10.9.91 and then by clear refusal on the part of the appellant to join the company of the respondent despite filing of the said petition under Section 9. Counsel thus urged that the said reluctance of the appellant clearly proves animus deserendi on her part and without there being any lawful excuse the appellant wife brought to an end the marital relationship.

9. Counsel further argued that Section 23 of the Hindu Marriage Act cannot be interpreted in the manner as sought to be interpreted by the counsel for the appellant as under Section 23 (1) (b) of the Hindu Marriage Act, it is only where the ground for divorce of the petitioner is cruelty, the court must be satisfied that the petitioner has not in any manner condoned the acts of cruelty complained of. Counsel thus submitted that for seeking a decree of divorce on the ground of desertion, the respondent was not required to prove non-condonation of the act of desertion committed by the appellant wife. Counsel, therefore, urged that so far the respondent husband is concerned, he was able to successfully prove that the appellant wife had deserted him and such desertion on her part was with a view to permanently bring to an end the cohabitation between the parties. Counsel thus submitted that both these factors were fully proved on record by the respondent and therefore, based on the pleadings and evidence, the learned trial court has rightly passed the decree of divorce.

10. So far the ground of cruelty is concerned, counsel for the respondent submitted that leaving the matrimonial house by the appellant wife without there being any lawful excuse on 10.9.91 itself constitutes an act of cruelty and besides that the respondent successfully proved that his elder child was abducted by the brother of the appellant on 01.11.91, and also the abduction of the respondent himself by the brother of the appellant with the help of three goondas at gun point when he was severely beaten with hockey sticks and fist blows. These acts of physical violence constitute sufficient material to prove cruelty on the part of the appellant wife, counsel argued. Counsel also submitted that the respondent has proved on record copy of the FIR as well as the MLC and there has been no denial to the registration of the criminal case either by the appellant or by her father RW-2. Counsel further submitted that the testimony of the respondent husband remained unrebutted and unimpeached as the appellant not only failed to refute the testimony of the respondent but also failed to cross-examine the respondent in terms of her defence put up in the written statement. RW- 2, father of the appellant, also did not support her defence and failed to prove any kind of alleged ill treatment of his daughter at the hands of her husband, the counsel contended. On the abduction of the child, counsel clarified that the abduction of the child took place from the parental house of the husband and the matter was also reported to the police by the mother of the respondent, although, the respondent learnt about the abduction from a neighbour. Counsel thus submitted that these acts of abduction and kidnapping were committed by the brother of the appellant only at her instance and by no stretch of imagination the appellant being wife of the respondent can separate herself from the said incidents. Counsel thus submitted that the said acts caused immense pain and agony to the respondent both physical and mental and based on the said grounds the learned trial court has validly passed the decree of divorce. Counsel also placed reliance on the same very judgments as relied upon by the counsel for the appellant and submitted that the ratio of all these judgments support the case of the respondent.

11. I have heard learned counsel for the parties at considerable length and have given my thoughtful consideration to the facts of the case and the arguments advanced by the parties.

12. Before adverting to the facts of the present case, it would be useful to refer to the observations of the Apex Court in the celebrated pronouncement, Dr.N.G.Dastane Vs. Mrs. S.Dastane (1975) 2 SCC 326, which are reproduced as under:

“But does the law require, as the High Court has held,
that the petitioner must prove his case beyond a
reasonable doubt ? In other words, though the burden
lies on the petitioner to establish the charge of cruelty,
what is the standard of proof to be applied in order 10
judge whether the burden has been discharged?

24. The normal rule which governs civil proceedings is
that a fact can be said to be established if it is proved by
a preponderance of probabilities. This is for the reason
that under the Evidence Act, Section 3, a fact is said to
be proved when the court either believes it to exist or
considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to
act upon the supposition that it exists. The belief
regarding the existence of a fact may thus be founded
on a balance of probabilities. A. prudent man faced with
conflicting probabilities concerning a fact-situation will
act on the supposition that the fact exists, if on weighing
the various probabilities he links that the preponderance
is in favour of the existence of the particular fact. As a
prudent man, so the court applies this test for finding
whether a fact in issue can be said to be proved. The
first step in this process is to fix the probabilities, the
second to weigh them, though the two may often
intermingle. The impossible is weeded out at the first
stage, the improbable at the second. Within the wide
range of probabilities the court has often a difficult
choice to make but it is this choice which ultimately
determines where the preponderance of probabilities
lies. Important issues like those which affect the status
of parties demand a closer scrutiny than those like the
loan on a promissory note : “the nature and gravity of
an issue necessarily determines the manner of attaining
reasonable satisfaction of the truth of the issue” Per
Dixon, J. in Wright v. Wright (1948) 77 C.L.R. 191 or as
said by Lord Denning, “the degree of probability
depends on the subject-matter. In proportion as the
offence is grave, so ought the proof to be clear” Blyth v.
Blyth [1966] 1 A.E.R. 534. But whether the issue is one
of cruelty or of a loan on a pronote, the test to apply is
whether on a preponderance of probabilities the relevant
fact is proved. In civil cases this, normally, is the
standard of proof to apply for finding whether the
burden of proof is discharged.

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25. Proof beyond reasonable doubt is proof by a higher
standard which generally governs criminal trials or trials
involving inquiry into issues of a quasi-criminal nature. A
criminal trial involves the liberty of the subject which
may not be taken away on a mere preponderance of
probabilities. If the probabilities are so nicely balanced
that a reasonable, not a vascillating, mind cannot find
where the preponderance lies, a doubt arises regarding
the existence of the fact to be proved and the benefit of
such reasonable doubt goes to the accused. It is wrong
to import such considerations in trials of a purely civil
nature.

26. Neither Section 10 of the Act which enumerates the
grounds on which a petition for judicial separation may
be presented nor Section 23 which governs the
jurisdiction of the court to pass a decree in any
proceeding under the Act requires that the petitioner
must prove his case beyond a reasonable doubt. Section
23 confers on the court the power to pass a decree if it
is “satisfied” on matters mentioned in Clauses (a) to (e)
of the section. Considering that proceedings under the
Act are essentially of a civil nature, the word “satisfied”
must mean “satisfied on a preponderance of
probabilities” and not “satisfied beyond a reasonable
doubt”. Section 23 does not alter the standard of proof
in civil cases.

27. The misconception regarding the standard of proof
in matrimonial cases arises perhaps from a loose
description of the respondent’s conduct in such cases as
constituting a “matrimonial offence”. Acts of a spouse
which are calculated to impair the integrity of a marital
union have a social significance. To marry or not to
marry and if so whom, may well be a private affair but
the freedom to break a matrimonial tie ‘ is not. The
society has a stake in the institution of marriage and
therefore the erring spouse is treated not as a mere
defaulter but as an offender. But this social philosophy,
though it may have a bearing on the need to have the
clearest proof of an allegation before it is accepted as a
ground for the dissolution of a marriage, has no bearing
on the standard of proof in matrimonial cases. –

28. In England, a view was at one time taken that the
petitioner in a matrimonial petition must establish his
case beyond a reasonable doubt but in Blyth v. Blytht
[1966] A.E.R. 524 , the House of Lords held by a
majority that so far as the grounds of divorce or the
bars to divorce like connivance or condonation are
concerned, “the case, like any civil case, may be proved
by a preponderance of probability”. The High Court of
Australia in Wright v. Wright 1948, 77 C.L.R. 191, has
also taken the view that “the civil and not the criminal
standard of persuasion applies to matrimonial causes,
including issues of adultery”. The High Court was
therefore in error in holding that the petitioner must
establish the charge of cruelty “beyond reasonable
doubt”. The High Court adds that “This must be in
accordance with the law of evidence”, but we are not
clear as to the implications of this observation.
From the aforesaid observations, it would be quite
evident that to claim the decree of divorce on the ground of
cruelty or desertion, facts are not to be proved beyond
reasonable doubt and like in civil proceedings it would be
sufficient if such facts are proved by preponderance of
probabilities. The courts in matrimonial cases and civil
proceedings have to infer certain situations looking into the
normal human conduct and the prevailing fact-situation, even
though the same may not be specifically pleaded or proved by
the parties.

13. The main allegations on which the respondent based his petition, so far the ground of cruelty is concerned, are that during the stay of the respondent with the appellant her main demand was that the respondent should abandon his parents despite the fact that the respondent is the only son of his parents and accordingly the respondent had to arrange a separate residence i.e. at 43, Ashoka Park Extension, New Delhi for himself and the appellant wife. The other ground of cruelty is that the appellant left the matrimonial home without information and knowledge of the respondent. One of the other allegations is that the elder son of the couple, Master Rajat, was abducted in the absence of the respondent by the brother of the appellant and a report to this effect was lodged with the police station Paschim Vihar. One of the grievous acts of cruelty as per the respondent is that on 27.11.1996 at 9.45 a.m. the respondent was abducted by the brother of the appellant, Manoj Kumar, along with three goondas and he was beaten with hockey sticks and fist blows and was also given threat of dire consequences of death. An FIR bearing No. 1057 dated 17.12.96 was duly registered under Sections 365/342/323/506/34 IPC to this effect. The respondent in his petition clearly stated that the said act of abduction was committed by the brother of the appellant at the instance of the appellant.

14. So far the ground of desertion is concerned, the case of the respondent as set up by him in the petition is that the appellant deserted him for a continuous period of not less than five years immediately preceding the presentation of the said petition i.e. from 10.9.91 to 3.2.97. The respondent further claims that various attempts were made by him to bring back the appellant to join the matrimonial home, but she bluntly refused to do so. The respondent has further stated that the petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights was filed by him, but the same was got dismissed in default on the assurance given by the appellant that she would join the respondent, but she did not honour her commitment.

15. The appellant on the other hand, in her written statement, denied each and every allegation leveled by the respondent in his said petition. On merits, the appellant took a stand that at the matrimonial home the respondent and his family members caused harassment and physical torture to her so as to compel her to bring more dowry from her parents as the respondent and his family members were not satisfied with the dowry articles given in marriage. The appellant was also not provided proper food, clothing and was being treated as a maid servant by the respondent and his family members while the appellant fulfilled all her matrimonial obligations being a devoted wife. The appellant has further claimed that she remained in the matrimonial house upto 15.4.1991, when she was turned out of house after giving her merciless beatings by the respondent and his family members, which ultimately compelled the appellant to lodge a police report with PS Paschim Vihar. It is further claimed that the respondent himself agreed to arrange for a separate rented accommodation so as to live separately from his parents besides having undertaken to maintain the appellant properly. The appellant further averred that thereafter the respondent did not mend his behavior as she was not provided with proper meals and was not being paid even a single penny for household expenses and all these facts were informed by the appellant through letters sent by her to her father. The appellant has further averred that she was again turned out of the house at Ashoka Park Extension on 15.9.1991 in three wearings at the advance stage of pregnancy. She further stated that she gave birth to a child on 1.10.91, but the respondent visited the hospital only once and there also he demanded a sum of Rs. 50,000/- to be paid by her father from his retiral benefits and only on the payment of the same he would take the appellant back to the matrimonial house. It is further stated that the respondent did not bother to take the appellant back to the matrimonial house despite numerous attempts by her. It is further claimed that the respondent deliberately filed a petition under Section 9 of the Hindu Marriage Act with mala fide intentions and later on got the same dismissed in default without even taking any steps to seek restoration of the same.

16. The expression “cruelty” has not been defined in the Hindu Marriage Act and rightly so as the legislature probably refrained itself to define the said expression, which cannot be encompassed with precise and definite connotations. As interpreted by the Courts, the cruelty may be physical or mental, intentional or unintentional. Physical cruelty would involve physical violence and bodily injury and so far mental cruelty is concerned, the same would involve conduct of one party which inflicts such mental pain and suffering as would make it impossible for the other party to live with him/her. Explaining the concept of cruelty the Apex Court in A. Jayachandra vs Aneel Kaur AIR 2005 SC 534 held as under:-

“10. The expression “cruelty” has not been defined in
the Act. Cruelty can be physical or mental. Cruelty which
is a ground for dissolution of marriage may be defined
as willful and unjustifiable conduct of such character as
to cause danger to life, limb or health, bodily or mental,
or as to give rise to a reasonable apprehension of such a
danger. The question of mental cruelty has to be
considered in the light of the norms of marital ties of the
particular society to which the parties belong, their
social values, status, environment in which they live.
Cruelty, as noted above, includes mental cruelty, which
falls within the purview of a matrimonial wrong. Cruelty
need not be physical. If from the conduct of his spouse
same is established and/or an inference can be
legitimately drawn that the treatment of the spouse is
such that it causes an apprehension in the mind of the
other spouse, about his or her mental welfare then this
conduct amounts to cruelty. In delicate human
relationship like matrimony, one has to see the
probabilities of the case. The concept, a proof beyond
the shadow of doubt, is to be applied to criminal trials
and not to civil matters and certainly not to matters of
such delicate personal relationship as those of husband
and wife. Therefore, one has to see what are the
probabilities in a case and legal cruelty has to be found
out, not merely as a matter of fact, but as the effect on
the mind of the complainant spouse because of the acts
or omissions of the other. Cruelty may be physical or
corporeal or may be mental. In physical cruelty, there
can be tangible and direct evidence, but in the case of
mental cruelty there may not at the same time be direct
evidence. In cases where there is no direct evidence,
Courts are required to probe into the mental process
and mental effect of incidents that are brought out in
evidence. It is in this view that one has to consider the
evidence in matrimonial disputes.

11. The expression ‘cruelty’ has been used in relation to
human conduct or human behavior. It is the conduct in
relation to or in respect of matrimonial duties and
obligations. Cruelty is a course or conduct of one, which
is adversely affecting the other. The cruelty may be
mental or physical, intentional or unintentional. If it is
physical, the Court will have no problem in determining
it. It is a question of fact and degree. If it is mental, the
problem presents difficulties. First, the enquiry must
begin as to the nature of cruel treatment, second the
impact of such treatment in the mind of the spouse,
whether it caused reasonable apprehension that it would
be harmful or injurious to live with the other. Ultimately,
it is a matter of inference to be drawn by taking into
account the nature of the conduct and its effect on the
complaining spouse. However, there may be a case
where the conduct complained of itself is bad enough
and per se unlawful or illegal. Then the impact or
injurious effect on the other spouse need not be
enquired into or considered. In such cases, the cruelty
will be established if the conduct itself is proved or
admitted (See Sobha Rani v. Madhukar Reddi, :
[1988]1SCR1010 ).

12. To constitute cruelty, the conduct complained of
should be “grave and weighty” so as to come to the
conclusion that the petitioner spouse cannot be
reasonably expected to live with the other spouse. It
must be something more serious than “ordinary wear
and tear of married life”. The conduct, taking into
consideration the circumstances and background has to
be examined to reach the conclusion whether the
conduct complained of amounts to cruelty in the
matrimonial law. Conduct has to be considered, as noted
above, in the background of several factors such as
social status of parties, their education,physical and
mental conditions, customs and traditions. It is difficult
to lay down a precise definition or to give exhaustive
description of the circumstances, which would constitute
cruelty. It must be of the type as to satisfy the
conscience of the Court that the relationship between
the parties had deteriorated to such an extent due to
the conduct of the other spouse that it would be
impossible for them to live together without mental
agony, torture or distress, to entitle the complaining
spouse to secure divorce. Physical violence is not
absolutely essential to constitute cruelty and a
consistent course of conduct inflicting immeasurable
mental agony and torture may well constitute cruelty
within the meaning of Section 10 of the Act. Mental
cruelty may consist of verbal abuses and insults by
using filthy and abusive language leading to constant
disturbance of mental peace of the other party.”

17. It is a matter of common knowledge that the relationship of husband and wife is such that many acts of decency-indecency, love-hatred, taunts and tantrums take place to which both of them alone remain privy. There may be many other acts which are committed by either of the parties in the presence of the family members or in the presence of their respective in-laws. Some of the acts also at times, directly involve the family members of either of the parties and sometimes even friends, other relatives and even neighbours can be witness to the behavior of husband and wife. The Apex Court in the case of Praveen Mehta V. Inderjit Mehta AIR 2002 SC 2582 observed that unlike physical cruelty, mental cruelty is difficult to establish by direct evidence and therefore it is necessarily a matter of inference to be drawn from the facts and circumstances of each case. It would be useful to refer to the following para of the said judgment here:-

“Cruelty for the purpose of Section 13(1)(ia) is to be
taken as a behavior by one spouse towards the other
which causes reasonable apprehension in the mind of
the latter that it is not safe for him or her to continue
the matrimonial relationship with the other. Mental
cruelty is a state of mind and feeling with one of the
spouses due to the behavior or behavioral pattern by the
other. Unlike the case of physical cruelty the mental
cruelty is difficult to establish by direct evidence. It is
necessarily a matter of inference to be drawn from the
facts and circumstances of the case. A feeling of
anguish, disappointment and frustration in one spouse
caused by the conduct of the other can only be
appreciated on assessing the attending facts and
circumstances in which the two partners of matrimonial
life have been living. The inference has to be drawn
from the attending facts and circumstances taken
cumulatively. In case of mental cruelty it will not be a
correct approach to take an instance of misbehavior in
isolation and then pose the question whether such
behavior is sufficient by itself to cause mental cruelty.
The approach should be to take the cumulative effect of
the facts and circumstances emerging from the evidence
on record and then draw a fair inference whether the
petitioner in the divorce petition has been subjected to
mental cruelty due to conduct of the other.

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18. Dealing with the concept of cruelty, the Apex Court in Vinita Saxena Vs. Pankaj Pandit AIR 2006 SC 1662 observed as under:-

19. It is settled by catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the Section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case. The word ‘cruelty’ has not been defined and it has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.

20. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance. Judged by standard of modern civilization in the background of the cultural heritage and traditions of our society, a young and well educated woman like the appellant herein is not expected to endure the harassment in domestic life whether mental, physical, intentional or unintentional. Her sentiments have to be respected, her ambition and aspiration taken into account in making adjustment and her basic needs provided, though grievances arising from temperamental disharmony. This view was taken by the Kerala High Court in the case reported in MANU/KE/0001/1991.

21. In 1993 (2) Hin L.R. 637, the Court had gone to the further extent of observing as follows:

“Sometime even a gesture, the angry look, a sugar coated
joke, an ironic overlook may be more cruel than actual
beating. Each case depends on its own facts and must be
judged on these facts. The concept of cruelty has varied
from time to time, from place to place and from individual
to individual in its application according to social status of
the persons involved and their economic conditions and
other matters. The question whether the act complained
of was a cruel act is to be determined from the whole
facts and the matrimonial relations between the parties.
In this connection, the culture, temperament and status in
life and many other things are the factors which have to
be considered.

22. The legal concept 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 and mental) or to give rise to reasonable apprehension of such danger. The general rule in all question of cruelty is that the whole matrimonial relations must be considered, that rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complains accusations or taunts. It may be mental such as indifference and frigidity towards wife, denial of a company to her, hatred and abhorrence for wife or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellant’s side, ought this appellant to be called on to endure the conduct? From the respondent’s side, was this conduct excusable? The court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person’s point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure.

23. As to what constitute the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.

24. The modern view of cruelty of one spouse to another in the eye of law has been summarised as follows in (1977) 42 DRJ 270 Halsbury Laws of England Vol.12, 3rd edition page 270:-
The general rule in all kinds of cruelty that the whole matrimonial relations must be considered and that rule is of special value when the cruelty consists not of violent acts, but of injurious reproaches, complaints, accusations of taunts. Before coming to a conclusion, the judge must consider the impact of the personality and conduct of one spouse on the mind of the other, and all incidents and quarrels between the spouses must be weighed from the point of view. In determining what constitutes cruelty, regard must be had to the circumstances of each particular case, keeping always in view the physical and mental condition of the parties, and their character and social status. This Court in Dastane v. Dastane : [1975]3SCR967 observed as under:-

“The Court has to deal not with an ideal
husband and an ideal wife, (assuming
any such exist) but with the particular
man and women before it. The ideal
couple or a mere ideal one will probably
have no occasion to go to a matrimonial
court or, even if they may not be able to
drawn their differences, their ideal
attitudes may help them overlook or
gloss over mutual fault and failures.”……..

Spouses owe rights and duties each to the other and in their relationship they must act reasonably. In every case where cruelty exists it is possible to say that the spouse at fault has been unreasonable. The list of cruelty, therefore, should be breach of the duty to act reasonably, whether in omission or commission, causing injury to health. Such a list avoids imputing on intention where in fact none may exist. Further all such matters are foresight, desires, wishes, intention, motives, perception, obtuseness, persistence and indifference would remain relevant but merely as matter of evidence bearing upon the requirement to act reasonably or as aggravation of the matters charged”.

19. Now adverting to the facts of the present case, so far the ground of cruelty is concerned, I do not find any illegality, irrationality or perversity in the reasoning given by the Ld. Trial Court except some skirmishes which are totally inconsequential. The marriage between the parties was solemnized on 12.12.1987 and two children were born out of the said wedlock in the year 1990-1991 and both of them are now major. Both the parties have been living separately since 10.9.91, i.e. for almost over a period of 19 years. It is an admitted fact between the parties that the respondent had taken a separate residence to live with the appellant i.e. at 43, Ashoka Park Extension, New Delhi and undoubtedly separate residence to live apart from his parents was taken so that the husband and wife could live independently without any sort of interference in their matrimonial relationship. Usually, no son would take such a step to part company of his aging parents unless compelled by his wife or some other compelling circumstances. The respondent in his deposition clearly stated that the appellant did not want to stay in the joint family and she was not respecting his parents. The respondent further deposed that he was the only son of his parents and his father is an aged person but still in order to please the appellant he started living separately in a rented accommodation. The said statement of the respondent went unrebutted as no contrary suggestion was put to the respondent by the appellant. Again the statement of the respondent testifying that on 01.11.1991 the brother of the appellant, Manoj Kumar, came to the house along with his two companions and abducted his son Master Rajat and a police complaint regarding this incident was lodged by the mother of the respondent at P.S. Paschim Vihar, also remained unchallenged and unrebutted as no contrary suggestion was put to him by the appellant. Counsel for the appellant strenuously argued that the respondent could not have left his son alone at the matrimonial home as the child being just 11 months old and also no neighbour was produced by the respondent to prove the said allegation of abduction. This argument of the counsel could be of some substance had the respondent pleaded abduction from his newly acquired rented house, but in his deposition he clearly stated that his mother had lodged a report with regard to the incident and this clearly demonstrates that the child was at the parental house of the respondent. Counsel for the appellant did not offer any explanation as to why the said deposition of the respondent was not rebutted by the appellant. There is thus nothing wrong if the ld. Trial court gave due weightage to the said unrebutted deposition of PW 1.

20. Further, besides the mental cruelties, there is a case of physical cruelty inflicted on the respondent/husband. The respondent in his petition as well as in his deposition clearly deposed that the brother of the appellant, Manoj Kumar, along with other three goondas came on 26.11.1996 to his residence and after threatening him with revolver abducted him in a Maruti Jeep. The respondent also deposed that on the way his hands were tied and his face was covered and he was given beatings by fist blows, legs and hockey sticks and thereafter he was taken to the house of the in-laws at Bajit Pur village where he was locked by the brother of the appellant and was threatened that he would be killed. He further deposed that on 28.11.1996 he went to the police station and lodged a complaint regarding this incident. He also stated that he was medically examined by the police at DDU Hospital and an FIR under Section 365/342/506/34 IPC was lodged against the brother of the appellant and his other companions. Again, except seeking certain clarifications from the respondent, no contrary suggestion was put to him by the appellant to deny the occurrence of such an incident with him, and hence this part of the testimony of the respondent also remained unrebutted and unimpeached. Mr. Sindhwani, counsel for the appellant, laid much emphasis on the fact that mere registration of an FIR would not by itself prove that the said criminal acts were committed by the brother of the appellant and his companions. Counsel also argued that the FIR and the MLC were not proved by the respondent in accordance with law. I do not find any force in the arguments of the counsel for the appellant. An FIR is a public document and although by exhibiting the FIR it would not lead to proving the correctness of the contents of the FIR but certainly it will prove the reporting of the commission of a crime by the assailants. The deposition of the respondent narrating the sequence of incidents remained unrebutted and this evidence of respondent coupled with the fact of registration of an FIR clearly shows that such an incident did take place. Another limb of argument of the counsel for the appellant was that nowhere has the respondent proved that the said beatings by the brother and family members were at the behest of the appellant and the trial court in para 59 and 60 of the impugned judgment wrongly observed that these acts were committed at the behest of the appellant. At the first blush, I found this argument quite convincing but the perusal of the petition clearly shows that the respondent attributed commission of the said incident at the instance of the appellant alone. Although in the deposition, the respondent did not state that the said acts were committed by the brother and father of the appellant at her instance but keeping in view the totality of the circumstances, the said act could only be committed at the instance of the appellant, more particularly, when the appellant failed to explain any kind of animosity or rivalry between the respondent and the family members of the appellant otherwise than the matrimonial dispute. The MLC proved on record also exemplifies that the respondent had received injuries in the said incident.

21. Mr. Sindhwani sought to place reliance on the judgment of the Karnataka High Court in the case of Shivakumar vs. Premvathi, (supra) to support his argument that the respondent husband has not produced any independent evidence in corroboration of his case. This judgment of the Karnataka High Court will be of no help to the appellant as in the said case adultery was one of the grounds for divorce and the petitioner therein disclosed that the people in the locality had said that the respondent had illicit relations with some named person. The Court in the background of these facts took a position that no independent evidence was adduced by the petitioner to support the allegation of adultery committed by the respondent by living in the house of the named person. The facts of the present case in hand cannot be equated with the facts of that case as here the respondent husband has leveled serious allegations of physical violence committed by the brother of the appellant along with his accomplice for which the evidence of the respondent himself coupled with documentary evidence proved on record i.e. FIR and MLC is sufficient enough to establish cruelty on the part of the appellant. There is thus sufficient evidence adduced by the respondent to prove various acts of cruelties committed by the appellant and I do not find any illegality in the findings arrived at by the Ld. Trial Court even if the statement of the respondent remained uncorroborated. Unrebutted statement of a witness even if uncorroborated carries much weightage. I also do not find that the allegations leveled by the respondent husband are vague, uncertain and unspecific after looking at the petition and the replication in entirety. I also do not find any merit in the other pleas raised by the counsel for the appellant assailing the judgment of the Ld. Trial Court on the ground of cruelty. The judgment and decree passed by the Ld. Trial Court is accordingly upheld so far as the ground of cruelty is concerned.

22. Now dealing with the ground of desertion as envisaged under Section 13 (1) (ib) of the Hindu Marriage Act, 1955, the essentials of desertion as a matrimonial wrong were stated by the Hon?ble Supreme Court in the matter of Bipin Chander Jaisinghbhai Shah Vs. Prabhawati AIR 1957 SC 176 and it was held that:-

“If a spouse abandon the other spouse in a state of
temporary passion, for example, anger or disgust,
without intending permanently to cease cohabitation, it
will not amount to desertion. For the offence of
desertion, so far as the deserting spouse is concerned,
two essential conditions must be there, (1) the factum
of separation, and (2) the intention to bring
cohabitation permanently to an end (animus
deserendi). Similarly two elements are essential so far
as the deserted spouse is concerned : (1) the absence
of consent and (2) absence of conduct giving
reasonable cause to the spouse leaving the matrimonial
home to form the necessary intention aforesaid …….
Desertion is a matter of inference to be drawn from the
facts and circumstances of each case. The inference
may be drawn from certain facts which may not in
another case be capable of leading to the same
inference; that is to say, the facts have to be viewed as
to the purpose which is revealed by those acts or by
conduct and expression of intention, both anterior and
subsequent to the actual acts of separation. If, in fact
there has been a separation, the essential question
always is whether that act could be attributable to an
animus deserendi. The offence of desertion commences
when the fact of separation and the animus deserendi
co-exist. But it is not necessary that they should
commence at the same time. The de facto separation
may have commenced without the necessary animus or
it may be that the separation and the animus deserendi
coincide in point of time.”

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While discussing the said concept, the Apex Court also referred to various English decisions where the concept of desertion was discussed. Referring to Halsbury?s Laws of England (3rd Edn.) Vol. 12 it was observed:-

“In its essence desertion means the international
permanent forsaking and abandonment of one spouse
by the other without that other’s consent, and without
reasonable cause. It is a total repudiation of the
obligations of marriage. In view of the large variety of
circumstances and of modes of life involved, the Court
has discouraged attempts at defining desertion, there
being no general principle applicable to all cases.”

23. The Constitution Bench of the Apex Court further in the case of Lachman Utamchand Kirpalani Vs. Meena, AIR 1964 SC 40 explained the concept of desertion as follows:-

“Two more matters which have a bearing on the points in
dispute in this appeal might also be mentioned. The first
relates to the burden of proof in these cases, and this is a
point to which we have already made a passing reference. It
is settled law that the burden of proving desertion – the
“factum” as well as the “animus deserendi” – is on the
petitioner, and he or she has to establish beyond reasonable
doubt, to the satisfaction of the Court, the desertion
throughout the entire period of two years before the petition
as well as that such desertion was with out just cause. In
other words, even if the wife, where she is the deserting
spouse, does not prove just cause for her living apart, the
petitioner-husband has still to satisfy the Court that the
desertion was without just cause.

27. As Denning, L.J., observed : (Dunn v. Dunn) [1948] 2 All. E.R. 822 :

“The burden he (Counsel for the husband) said was
on her to prove just cause (for living apart). The
argument contains a fallacy which has been put
forward from time to time in many branches of the
law. The fallacy lies in a failure to distinguish
between a legal burden of proof laid down by law
and a provisional burden raised by the state of the
evidence …… The legal burden throughout this case
is on the husband, as petitioner, to prove that his
wife deserted him without cause. To discharge that
burden, he relies on the fact that he asked her to
join him and she refused. That is a fact from which
the court may infer that she deserted him without
cause, but it is not bound to do so. Once he proves
that fact of refusal, she may seek to rebut the
inference of desertion by proving that she had just
cause for her refusal; and indeed, it is usually wise
for her to do so, but there is no legal burden on her
to do so. Even if she does not affirmatively prove
just cause, the court has still, at the end of the
case, to ask itself : Is the legal burden discharged ?
Has the husband proved that she deserted him
without cause ? Take this case. The wife was very
deaf, and for that reason could not explain to the
court her reasons for refusal. The judge thereupon
considered reasons for her refusal which appeared
from the facts in evidence, though she had not
herself stated that they operated on her mind.
Counsel for the husband says that the judge ought
not to have done that. If there were a legal burden
on the wife he would be right, but there was none.
The legal burden was on the husband to prove
desertion without cause, and the judge was right to
ask himself at the end of the case : Has that burden
been discharged ?”

28. This, in our opinion, is as well the law in this country under the Act”

24. Taking into consideration the aforesaid well settled legal principles, let me examine the case in hand. In the petition, the respondent husband has stated that the appellant had deserted him on 10.09.1991 in his absence and at the time of desertion the parties were residing together at 43, Ashoka Park Extension, New Delhi. The respondent has further stated that he made various attempts to bring back the appellant to the matrimonial home but she bluntly refused to join him. It has been further stated that the respondent had filed a petition under Section 9 of the Hindu Marriage Act but the same was got dismissed in default by him on the assurance of the appellant that she would join back the respondent.

25. As per the settled legal position, it is not the factum of separation alone but the other essential ingredient of „animus deserendi? that should also be proved for claiming a decree of divorce on the ground of desertion. There is a consistent judicial view that the petitioner has not merely to prove the factum of desertion but also animus deserendi. Again, the petitioner has to establish that it is not on account of any circumstances created by the petitioner himself which led the other spouse to leave his/her company as the petitioner cannot be allowed to take advantage of his/her own wrongs. Yet again, it would not be enough for the petitioner to merely plead and prove that the respondent had left his/her company but also to prove that she did not return back even after genuine efforts are made by the petitioner. In a case where the husband seeks divorce on the ground of desertion, the court is required to see as to whether any concerted efforts were made by him to bring back his wife and whether on his making such efforts, the wife has expressed her reluctance to go back to the matrimonial house without any just cause or lawful excuse.

26. In the facts of the present case, the respondent has merely pleaded that the appellant had left the matrimonial home on 15.09.1991, the appellant wife, on the other hand, pleaded that she was turned out of the matrimonial home on 10.09.1991 just in three clothes that too after she was given merciless beatings. It is hardly of any consequence whether the wife left the company of the husband on 10.09.1991 or 15.09.1991 as the same would only prove the factum of separation between the parties. There is not an iota of evidence placed on record by the respondent/husband that he made any effort to bring back the appellant/wife to the matrimonial home. No letters, no telephonic request, no intervention of relatives, nothing of this sort was pleaded or proved on record by the respondent/husband. The mere fact that the respondent had filed a petition under Section 9 of the Hindu Marriage Act to seek restoration of conjugal rights would not by itself prove any genuine effort or sincerity on the part of the husband to bring back his wife, more particularly when he did not pursue the said remedy and allowed the said petition to go unrepresented while the appellant/wife remained present in court on the two dates of hearing. The respondent has failed to prove on record that any assurance was given by the appellant wife that she would join back the company of the husband on getting the said petition dismissed in default. The respondent has thus miserably failed to prove the „animus deserendi? on the part of the appellant wife.

27. The counsel placed reliance on the judgment of the Apex Court in Savitri Pandey Vs. Prem Chandra Pandey (2002) 2 SCC 73, but the same supports the plea of the appellant so far the ground of desertion is concerned, but does not support her so far the ground of cruelty is concerned.

28. Another argument of the counsel for the appellant was that under Section 23 (1) (b) of the Hindu Marriage Act the ground of cruelty as well as desertion would not be available to the petitioner where the same stands condoned by him. Before I examine this contention it would be useful to reproduce Section 23 of the Hindu Marriage Act, as under:-

23. Decree in proceedings.-
(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that-
(a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b) where the ground of the petition is the ground specified in clause (f) of sub-section (1) of section 10, or in clause (i) of subsection (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and
(c) the petition is not presented or prosecuted in collusion with the respondent, and
(d) there has not been any unnecessary or improper delay in instituting the proceeding, and
(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavor to bring about a reconciliation between the parties.

29. The plain language of Section 23 (1) (b) clearly shows the reference to clause (i) of sub-section (1) of Section 13 i.e. adultery and also to the ground of cruelty. The legislature in its wisdom has explicitly mentioned cruelty in Section 23(1) (b) and if it was to be impliedly considered as part of section 13(1) (i) then „cruelty? would not have been expressly mentioned. Section 23(1) (b) therefore does not include the ground of desertion and hence cannot be read into the same by virtue of it being a part of sub section (i) of Section 13(1). Also in the Hindu Marriage Act Rules of this court, Rule 9 states as:

R. 9 Affidavit of non-condonation- Where the ground of the petition is the ground specified in clause (i) of sub section (1) of section 13 or where the ground for the petition is cruelty, the petition shall be accompanied by an affidavit to the effect that the petitioner has not condoned the act complained of or not in any manner condoned the cruelty.

Hence it would be manifest from the abovesaid rule as well that if the ground of desertion would have to be included, then either it would have been explicitly done so or if sub clause (i) has to be read inclusive of both sub clauses (ia) and (ib) then it would have not separately mentioned the ground of cruelty in Section 23(1) (b). Therefore, to pass a decree of divorce on the ground of adultery and cruelty only, the court must be satisfied that the petitioner has not in any manner condoned the acts complained of before filing the divorce petition as envisaged under section 23(1)(b). Hence condonation as a bar to matrimonial relief applies only to the ground of adultery and cruelty.

30. Condonation however has not been defined by the statute. But it has come to mean the conditional forgiveness, the implied condition being that no further matrimonial offence shall be committed. To constitute condonation, two elements are necessary, namely, forgiveness of each other?s acts and restoration of cohabitation. The elements of condonotion being that there must be blotting out of the previous matrimonial offence and also must be followed by reinstatement, i.e restoration of the guilty spouse to his or her original place and status. Certainly in given situations, filing of the petition under Section 9 by the petitioner would imply that the petitioner has forgiven the offending or cruel acts of his spouse and seeks resumption of his marital ties. In the facts of the present case also the respondent had filed a petition under Section 9 of the Hindu Marriage Act, which he got dismissed in default. The respondent husband in his petition has stated that the said petition was got dismissed in default by him as the appellant had given him the assurance that she would join back the matrimonial home. The appellant on the other hand has taken a position that the respondent husband deliberately did not appear in the said matter and got the petition dismissed in default although she had appeared and had also sought to move an application under Section 24 of the Hindu Marriage Act. Even if the filing of the petition under Section 9 by the respondent for restitution of conjugal rights, is considered as an act of forgiveness, fulfilling one of the essentials of the act of condonation, but still there was no resumption of marital ties and obligations and the parties did not cohabit together thereafter. On the contrary, the petition was dismissed in default due to the non appearance of the respondent. Hence, the concept of condonation in the present facts cannot be a defence of the appellant for the grant of matrimonial relief.

31. Reliance was placed by Mr. Sindhwani on the Division Bench judgment of the Himachal Pradesh High Court in the case of Nirmala Devi (supra) where the Court was dealing with a petition filed by the husband on the ground of cruelty. In this case also prior to filing of the divorce petition the husband had filed a petition under Section 9 of the Hindu Marriage Act seeking a decree for restitution of conjugal rights, which fact was not disclosed by him in his divorce petition. The Court in this case also was confronted with a question whether the filing of a petition by the husband under Section 9 of the Hindu Marriage Act would amount to condoning the alleged acts of cruelty on the part of the wife. Answering the said question in the affirmative the Hon?ble Division Bench followed the mandate of section 23(1) (b) as the ground involved was cruelty and not desertion. The said Division Bench judgment of the Himachal Pradesh High Court, therefore, will be of no help to the appellant in the facts of the present case. Even otherwise in the said case, the husband had suppressed the fact of filing of the petition by him under Section 9 of the Hindu Marriage Act and in that case there was resumption of the marital ties in the interregnum period.

32. However, the ground of desertion would not be available to the petitioner if the deserter has terminated the desertion. In the present case as well, had the alleged deserter wife terminated the desertion, the ground would not have been available to the respondent husband. Desertion can be terminated at any time before the filing of the petition for divorce. It can come to an end by resumption of cohabitation; resumption of marital intercourse; offer of reconciliation; supervening agreement to separate; supervening insanity; and supervening marital misconduct. But in the present case there was no termination of desertion as none of the modes mentioned above were resorted to.

33. But, as already discussed above, the respondent/husband failed to prove animus deserendi on the part of the appellant wife as nowhere he has pleaded or proved that any sincere or actual efforts were put by him to bring back the appellant to the matrimonial home. Therefore he has miserably failed to prove desertion on the part of the appellant wife. Hence, the findings of the Ld. Trial Court so far the ground of desertion is concerned are set aside. The appellant succeeds in her appeal so far the ground of desertion is concerned.

34. In the ultimate analysis, the judgment and decree of the Ld. Trial Court is upheld on the ground of cruelty and the same is set aside so far the ground of desertion is concerned.

KAILASH GAMBHIR, J
August 18, 2010

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