Madras High Court
A.P. Ranga Rao
on 26 September, 1988
Equivalent citations: I (1990) DMC 567
Bench: K Natarajan
JUDGMENT K.M. Natarajan, J.
1. This second appeal is directed by the petitioner husband challenging the legality and correctness of the judgment passed by the VI Additional Judge, City Civil Court, Madras, in C.M.A. 54 of 1979, confirming the decree and judgment passed by the IV Assistant Judge, City Civil Court, Madras, dismissing the petition for dissolution of marriage.
2. The facts which are necessary for the disposal of this appeal can be briefly stated as follows : The appellant (herein after referred to as the petitioner) married the respondent on 9 9-1968, according to caste custom. On account of the lawful wedlock she gave birth to a daughter on 3-7-1969. The case of the petitioner is that the respondent used to tease him and provoke him often. On several occasions she threatened to commit suicide. She insisted on the petitioner to start a separate establishment after severing his connection with the other members of his family, namely, mother, brother, brother’s wife and unmarried brother. In or about March 1969, the respondent consumed bug poison and she was admitted in the Government Stanley Hospital. She deserted the petitioner in June 1970. By the intervention of mediators, who consisted of close relations, she later joined and she again left the house in February 1971. Subsequently in October 1972 she returned. In June-July 1973, she again attempted to commit suicide by consuming glass pieces. According to him, Mr. V.M. Day, Advocate, attempted to settle the matter amicably, but of no use. On account of the various acts of the respondent, he is put to extreme mental agony and that the respondent has also developed ulcer. Hence, he filed the petition for dissolution of marriage on the ground of desertion and cruelty. In addition he prayed for custody of the minor child.
3. The said position was resisted by the respondent and she would contend that all the allegations in the petition are untrue. The petitioner agreed to pay Rs. 100 per mensem to her as maintenance. He failed to do so. He later filed O.P. 407 of 1973, for judicial separation. It was not pressed. She went to the house of the petitioner to reside with him even after the dismissal of the said petition. But it was only the petitioner who suddenly left the house without intimating the respondent. She would state that she is willing to reside with her husband, the petitioner. To substantiate the allegations, the-petitioner examined himself as PW 1 and also examined seven other witnesses and filed Ex. A. 1 to A. 11. On the side of the respondent, besides examining herself, three other witnesses were examined and Ex. B. 1 to B. 3 were marked.
4. The trial Assistant Judge dismissed the petition holding that the petitioner has not made out any of the grounds of desertion or cruelty. He was unsuccessful before the appellate court. Hence this second appeal.
5. The second appeal was admitted on the following substantial question of law :–
“Whether in view of the conclusion of the lower appellate Court that there had been several attempts on the part of the respondent to commit suicide, the ground of cruelty has not been made out within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act 1955 ?
6. Learned counsel for the appellant, Mr. G.M. Nathan, submitted that within six months the marriage the respondent attempted to commit suicide by consuming bug poison and that she was taken to the Stanley Medical Hospital and examined by the doctor PW 7 who certified that she consumed bug poison. Subsequently in July, 1973, she again consumed glass pieces and that she was taken to the house of one lawyer V.M. Dev (PW 8) who is his family friend. PW 8 directed his son to admit her in the Stanley Medical College Hospital, Madras PW 5, doctor, treated her. It is supported by Ex. A. 6 and A. 7. The lower appellate Court came to the conclusion that it has been established that she attempted to commit suicide on those occasions. But the lower appellate court held that the reason for the respondent to commit suicide was the refusal of the appellant to set up separate residence and his disliking towards her and as such, it cannot be said that the appellant suffered any mental cruelty on account of the above facts, namely, her attempt to commit suicide on more than one occasion which amounted to mental cruelty. Learned counsel for the appellant in this connection submitted that the very approach of the lower appellate Court is not proper especially in view of the introduction of Section 13(1)(i-a), by virtue of the amendment Act 68 of 1976 and the ratio laid down by the Supreme Court and High Courts.
7. In the instant case, admittedly, the marriage between the parties took place on 9-9-1968 and a child was born on 3-7-1969. According to the appellant the respondent was not behaving like a normal woman and that she was behaving like person affected with hysterical complaint. It is seen that the respondent insisted the appellant to separate from his family which consisted of his mother, elder brother, brother’s wife and married younger brother and set up a separate family, to which the appellant was not agreeable. Even according to the case of the respondent, the appellant’s brother’s wife was responsible for the disharmony and that her efforts to set up a separate residence was not fruitful.
8. It is seen from the evidence of PW 7, who is a Civil Assistant Surgeon, attached to the Stanley Medical Hospital, that the respondent was admitted into the hospital on 14-3-1969 at 8.15 p.m. for consuming bug killer poison. The respondent complained of vomiting and pain in the abdomen. She has stated that she took bug killing poison at 8 p.m. According to AW 7, the diagnosis also showed that she consumed bug killer poison and the medical opinion also was to the same effect. Learned Counsel for the respondent submitted that in cross-examination, this witness has stated that he spoke only from the records and the symptoms noticed by his assistants who treated her and hence no reliance could be placed on this evidence. The learned counsel also submitted that even the finding of the lower appellate Court on this aspect should not be accepted. I do not find any merit in the said contention. The evidence of PW 7 clearly establishes that her respondent took bug killer poison, that she was treated for the same, that there were symptoms of consuming bug killer poison and that that is the diagnosis by the medical authorities. Again, the respondent consumed glass pieces on 30-7-1973 for which she was admitted in the Stanley Medical College Hospital. PW 5, Civil Assistant Surgeon, gave treatment to her. He had stated that the respondent herself stated that she swallowed glass pieces. He had made a note of it in the case sheet Ex. A. 6, and Ex. A. 7 is her O.P. ticket. Learned counsel for the respondent, relying on the answer given by this witness in cross-examination that no glass pieces were detected and that he cannot say whether she consumed glass pieces, contended that it cannot be said that she consumed glass pieces. On a careful reading of the evidence of PW 5,1 find that the respondent not only admitted that she had taken in glass pieces, but also she vomited once or twice. It is also seen that she was given drugs to bring the glass pieces out, that she refused to take them and that she also refused to get proper ., treatment. She also refused to given reasons for consuming glass pieces. Besides the evidence of PW 5, we have got the evidence of PW 8, an advocate, who mediated and who admitted her in the hospital through his son PW 5. The appellant also examined PW 2, 3 and 4 to establish the above act of the respondent in attempting to commit suicide. It is also in evidence that the respondent was in a state of pregnancy when for the first time she consumed bug poison. In evidence she would come forward with the version that she took it by mistake. But such defence was not taken by her in her counter. As regards the reasons for attempting to commit suicide PW 2 would say that there were frequent quarrels and that on account of the same, the respondent took bug poison. The evidence of PW 4 is to the effect that in June 1973, the respondent was actually seen taking glass pieces and was anxious to put an end to her life. With regard to this incident, we have got the evidence of the advocate PW 6 who mediated the dispute between the parties. The finding of the lower appellate Court in para 9 of its judgment is to the effect–
“The lower court has taken these instances and has held that there was no conclusive proof about the consumption of bug poison or of having taken glass pieces. I do not accept this finding of the lower court. As pointed out by the Supreme Court, the court has come to a conclusion on a preponderance of probabilities. The evidence taken as a whole establishes that the respondent was dissatisfied with her marital life and was deeply affected and agitated by the lack of affection and courtesy by her husband. If she had resorted on more than one occasion to put an end to her life, it was not because of any dislike for family life, but because she was dissatisfied with her surroundings.”
Again, in para 10, the lower appellate Court has pointed put–
“Of course, there have been attempts to commit suicide, but on that ground it cannot be said that the petitioner was put to mental agony. It is urged that the behaviour of the wife was such as to cause an extreme mental upset and detriment to the health of the petitioner.”
In para 10, it was also observed–
“His admission that PW I attempted to commit suicide because he was not prepared to set up a separate residence, indicates that cause for dejection of the respondent. It is not a case of mental cruelty by the respondent, but a marked obsession on the part of the petitioner to tear away from the other members of his family.”
Finally, the lower appellate Court gave a finding–
“On the facts of the case, I am satisfied that the respondent has not been guilty of mental cruelty, and if the petitioner entertained feeling that he has been treated with cruelty, it is due to his own making. Point No. 1 is found against the petitioner.”
It is clear from the above finding of the lower appellate court, that the respondent attempted to commit suicide on more than one occasion by consuming bug poison and taking glass pieces. The lower appellate Court held that those acts would not amount to mental cruelty as the appellant was resposible for those acts since he refused to set up separate family and that he did not like her. It is only this reasoning which is now challenged by the learned counsel for the appellant by contending that the refusal of the appellant-husband to set up a separate family and his disliking is quite immaterial and if it is established that there was an attempt on the part of the wife to commit suicide, the reason for the same has no consequence and the very act would amount to mental cruelty. In this connection, my attention was drawn to the fact that prior to the amendment Act 68 of 1976, ‘cruelty’ was not shown as one of the grounds for divorce, but it was shown as one of the grounds for judicial separation after amendment. By virtue of the amendment Act, Section 13(1)(i-a) was introduced under which ‘cruelty’ was also mentioned as one of the grounds for divorce. It is worthwhile to quote Section 13(1)(i-a) of the Act–
“13(1) Any marriage solemnised, 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). …
(i-a) has, after the solemnisation of the marriage, treated the petitioner with cruelty.”
This provision came up for interpretation before a Full Bench of the Bombay High Court in the case reported in Keshacrao v. Nisha, it has been held :–
“The cruelty contemplated under Section 13(1)(i-a) of the Act neither attracts the old English doctrine of danger nor the statutory limits embodied in old Section 10(1)(b). The cruelty contemplated is a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent”.
It was therefore held in that case, that the decision in Madanlal Sharma v. Santosh Sharma, 1980 Mah. LJ 391, does not lay down the law on the point correctly.
9. Learned counsel for the appellant invited the attention of this Court to the decision reported in Shobha Rani v. Madhukar Reddi, AIR 1980 SC 121, wherein it was held–
“The demand for dowry is prohibited under law. That by itself is bad enough. That amounts to cruelty entitling the wife to get a decree for dissolution of marriage.”
It was further observed–
“The word ‘cruelty’ has not been defined and could not have been defined. It has been used in relation to human conduct or; human behaviour. It is conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of 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 perse 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.”
The learned Judge further observed–
“A new dimension has been given to the concept of cruelly. Explanation to Section 498-AI.P.C. provides that any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute cruelty. Such wilful conduct which is likely to cause grave injury or danger to life, limb or health (whether mental or physical of the woman) would also amount to cruelty. Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security would also constitute cruelty. The cruelty as a ground for dissolution of marriage if not admitted requires to be proved on the preponderance of probabilities as in civil cases and not beyond a reasonable doubt as in criminal cases.”
Learned counsel for the appellant submitted that the attempt to commit suicide is per se an offence punishable under the Penal Code, and is like the demand for dowry which is prohibited under law and which by itself is bad enough and the same would amount to cruelty as per the decision of their Lordships of the Supreme Court in the case reported in Shobha Rani v. Madhukar Reddi (supra). Certainly, the attempt to commit suicide would also amount to mental cruelty to the husband by the wife. In para 17 of the judgment, it was observed —
The cruelty treatment may also result by the cultural conflict of the spouses, in such cases, even if the act of cruelty is established, the intention to commit cannot be established. The aggrieved party may not get relief, we do not think that was the intention with which the Parliament enacted Section 13(1)(i-a) of the Hindu Marriage Act. The context and the set up in which the word ‘cruelty’ has been used in the section seems to us, that intention is not necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, that act complained of could otherwise be regarded as cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment. The same is also the line of reasoning adopted by the House of Lords in Collins v. Collins, 1963-2-All ER 966, at page 976 where Lord Evershed said–
‘I am unable to accept the premise that ‘cruelty’ in matrimonial proceedings requires or involves of necessity the element of malignity though I do not of course doubt that if malignity be in fact established it would be highly relevant to a charge of guilty.
In my opinion, however, the question whether one party to a marriage has been guilty of cruelty to the other or has treated the other with cruelty does not according to the ordinary sense of the language use by Parliament, involve the presence of malignity (or its equivalent); and if this view be right it follows, as I venture to thick, that the presence of intention to injure on the part of the spouse charged or (which is, I thing, the same thing) proof that the conduct of the party charged was ‘aimed at’ the other spouse is not an essential requisite for cruelty. The question in all such cases is, to my mind, whether the acts or conduct the party charged were ‘cruel’ according to the ordinary sense of that word, rather than whether the party charged was himself or herself a cruel man or woman.. ..”
It is clear from the above decision that the proper approach in matrimonial cases is whether the acts or conduct of the party charged were cruel according to the ordinary sense of that word. Further, the intention to cause such cruelty is not a necessary element and it is no answer that for committing the acts the party charged himself was responsible as was done in case by the lower appellate Judge. In Narayan Ganesh Dastane v. Sucheta Narayan Dastane, , it was held that the threat given by wife to her husband that she will put an end to her life was cruelty towards her husband. In that case, the act of taking poison by wife was held to be cruelty to her husband. In Savitri v. Mulchand, , it was observed in para 28 at page 57 :
“The respondent petitioner husband had deposed that on his return from London the wife took poison when she saw him, and that she was saved by Jethanand. Attempt to commit suicide with a view to coerce the husband into doing something which he is not inclined to do, for whatever reason, I am of the view, is also a cruelty on the husband. Justice Leila Seth in her judgment reported as Shakunlala Kumari v. Om Prakash Ghai, I (1981) DMC 25=AIR 1981 Delhi 53, also said that threat to commit suicide by the wife amounts to cruelty on the husband. In my view attempt to commit suicide by taking poison would also amount to cruelty.”
In that case, the learned Judge referred to the decision reported in Narayana Ganesh Dastane v. Suchita Narayana Dastane, (supra), also. Applying the ratio mentioned in the above quoted decisions to the facts of this case, it can be held that merely because the husband was not agreeable to separate from the members of the family and set up separate family as desired by his wife, she was not justified in resorting to attempt to commit suicide by consuming poison or glass pieces on more than one occasion. She could have worked out her remedy by taking such legal action open to her under law. It is not open to her to remain in the house of the husband and threaten to commit suicide by consuming poison etc. and cause mental cruelty to him. In Harbajan Singh v. Amarjeet Kaur, , it has been held “For these reasons it is established that the defendant respondent held out threats of committing suicide. It is needless to add that such threats constitute cruelty.”
Therein also, reliance was placed on the decision of the Supreme Court, in Dastane’s case (supra). As already stated, in the instant case, the lower appellate Court came to the conclusion, after differing from the view taken by the trial court, that there has been attempts to commit suicide. But, he came to the conclusion that on that ground it cannot be said that the husband was put to mental cruelty. According to the lower appellate Judge, the admission of the husband that his wife attempted to commit suicide because he was not prepared to set up a separate residence, indicates the cause for dejection, the appellant-husband should blame himself for his lapse and it is not open to him to contend that the threat to commit suicide and various acts attributed to the wife would amount to cruelty. In view of the ratio laid down in the above decisions, the said reasoning of the lower appellate judge is not tenable and on the established facts it is clear that the appellant has made out a case for mental cruelty so as to get a decree for dissolution of marriage under Section 13(1)(i-a) of the Hindu Marriage Act, as amended by Act 68 of 1976. Thus the substantial question of law is answered in favour of the appellant and against the respondent.
10. As regards the question of desertion, I do not find any irregularity or illegality in the finding rendered by both the courts below. Though their marriage was celebrated in 1968. they lived together till about 1973 and according to the appellant, there was desertion from 1973. It is seen from the evidence of PW 1 that even after the orders passed in O.P. 407 of 1973 she came and lived with him and subsequently she left only on 22-3-1976. The Original Petition was filed on 25-11-1977 which is less than two years immediately after leaving the appellant, and in view of Section 13(1)(i-b) the said ground is not tenable. It cannot be said from the circumstances that there was any animus deserendi on her part so as to constitute desertion. Hence no interference is called for in the finding on the question of desertion by the respondent wife. However, in view of the finding on the ground of cruelty, the appellant is entitled to the relief of dissolution of marriage.
11. In the result, the appeal is allowed. The judgment and decree of the courts below are set aside and the petition O.P. 629 of 1977 filed by the appellant is allowed and there will be a decree for dissolution of marriage between the appellant and the respondent under Section 13(1)(i-a) of the Hindu Marriage Act. In the circumstances, of the case, there will be no order as to costs.
12. Before parting with the case, I wish to place on record the valuable assistance rendered by Mr. S. Swaminathan, Advocate, who acted as amicus curiae on behalf of the respondent in the case, and my appreciations to him.