Supreme Court of India

CASE NO.:Appeal (civil) 20-21 of 1999

PETITIONER:SAVITRI PANDEY
Vs.
RESPONDENT:PREM CHANDRA PANDEY

DATE OF JUDGMENT: 08/01/2002

BENCH:R.P. Sethi & Y.K. Sabharwal

JUDGMENT:SETHI,J.

Alleging cruelty and desertion against the husband, the appellant- wife approached the Matrimonial Court under Section 13 of the Hindu Marriage Act (hereinafter referred to as “the Act”) praying for dissolution of her marriage with the respondent by a decree of divorce. She also prayed for direction to the respondent to return her ornaments given to him at the time of marriage. The Family Judge allowed the petition and dissolved the marriage of the parties on the ground of desertion by the husband. The appellant was also granted a decree of Rs.12,000/- towards the price of the scooter, allegedly given at the time of the marriage and payment of Rs.500/- per month as permanent alimony. Both the husband and the wife preferred appeals against the order of the Family Court as the wife was not satisfied with the part of the order refusing to grant a decree in her favour in respect of properties claimed by her and the husband was aggrieved by the order of dissolution of the marriage by a decree of divorce.
Both the appeals were disposed of by the impugned order holding that the appellant-wife herself was a defaulting party and neither the allegations of cruelty nor of desertion were proved. The order passed under Section 27 of the Hindu Marriage Act and for permanent alimony was also set aside. The grievance of the appellant-wife is that the High Court was not justified in setting aside the findings of fact arrived at by the Family Court and that she had proved the existence of cruelty and desertion against the respondent. It is contended that as the appellant-wife was proved to have been living separately, it was to be presumed that the respondent had deserted her.

The facts of the case giving rise to the filing of the present appeals are that marriage between the parties was solemnised on 6.5.1987. The appellant-wife lived with the respondent-husband till 21st June, 1987 and according to her the marriage between the parties was never consummated. After 21st June, 1987 the parties started living separately. The appellant alleged that her parents spent more than Rs.80,000/- with respect to the ceremonies of the marriage and also gave several articles in the form of ornaments, valuables, cash and kind as per demand of the respondent. The respondent and his family members allegedly made further demands of Colour TV, Refrigerator and some other ornaments besides hard cash of Rs.10,000/-. The father of the appellant obliged the respondent by giving him Rs.10,000/- in the first week of June, 1987 but could not fulfil the other demands of his parents. The respondent and his family members were alleged to have started torturing the appellants on false pretexts. Aggrieved by the attitude of the respondent and his family members, the appellant states to have filed a petition under Section 13 of the Act seeking dissolution of marriage by a decree of divorce along with prayer for the return of the property and grant of permanent alimony. The respondent also filed a petition seeking divorce and grant of other reliefs. However, on 14.5.1996 the respondent filed an application for withdrawal of his matrimonial case which was allowed on 19.5.1996. The appellant had alleged that the respondent was having illicit relations with a lady residing in Gaya at Bihar with whom he was stated to have solemnised the marriage. The allegations made in the petition were denied by the respondent and it was stated that in fact the appellant-wife was taking advantage of her own wrongs.

On the basis of the pleadings of the parties, the following issues were framed:

“1. Whether the defendant has treated the petitioner with cruelty? If so, its effect?

2. Whether the petitioner is entitled to relief under Sec.27 of the Hindu Marriage Act? If so, its effect?

3. Whether the defendant is entitled to any relief? If so, its effect?

4. To what relief, parties are entitled?”

It may be noticed that no issue with regard to alleged desertion was insisted to be framed. With respect to the issue of cruelty, the Family Court concluded that no evidence had been led to prove the allegations. The Court, however, held: “but it is proved that the respondent had deserted the petitioner, hence the petitioner will get or is entitled to for a decree of divorce”. On appreciation of evidence led in the case, the Division Bench of the High Court held: “We also do not find any evidence that the wife has been treated with cruelty by the husband. We are also of the view that there is no evidence that petitioner is deserted.”

We have heard the learned counsel for the parties and perused the record.

Treating the petitioner with cruelty is a ground for divorce under Section
13(1)(ia) of the Act. Cruelty has not been defined under the Act but in relation
to matrimonial matters it is contemplated as a conduct of such type which
endangers the living of the petitioner with the respondent. Cruelty consists of
acts which are dangerous to life, limb or health. Cruelty for the purpose of the
Act means where one spouse has so treated the other and manifested such feelings
towards her or him as to have inflicted bodily injury, or to have caused
reasonable apprehension of bodily injury, suffering or to have injured health.
Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse
which causes mental suffering or fear to the matrimonial life of the other.
“Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty
as to cause a reasonable apprehension in his or her mind that it would be
harmful or injurious for the petitioner to live with the other party. Cruelty,
however, has to be distinguished from the ordinary wear and tear of family life.
It cannot be decided on the basis of the sensitivity of the petitioner and has
to be adjudged on the basis of the course of conduct which would, in general, be
dangerous for a spouse to live with the other. In the instant case both the
trial court as well as the High Court have found on facts that the wife had
failed to prove the allegations of cruelty attributed to the respondent.
Concurrent findings of fact arrived at by the courts cannot be disturbed by this
Court in exercise of powers under Article 136 of the Constitution of India.
Otherwise also the averments made in the petition and the evidence led in
support thereof clearly shows that the allegations, even if held to have been
proved, would only show the sensitivity of the appellant with respect to the
conduct of the respondent which cannot be termed more than ordinary wear and
tear of the family life.

No decree of divorce could be granted on the ground of desertion in the absence
of pleading and proof. Learned counsel for the appellant submitted that even in
the absence of specific issue, the parties had led evidence and there was
sufficient material for the Family Court to return a verdict of desertion having
been proved. In the light of the submissions made by the learned counsel, we
have opted to examine this aspect of the matter despite the fact that there was
no specific issue framed or insisted to be framed.

“Desertion”, for the purpose of seeking divorce under the Act, means the
intentional permanent forsaking and abandonment of one spouse by the other
without that other’s consent and without reasonable cause. In other words it is
a total repudiation of the obligations of marriage. Desertion is not the
withdrawal from a place but from a state of things. Desertion, therefore, means
withdrawing from the matrimonial obligations, i.e., not permitting or allowing
and facilitating the cohabitation between the parties. The proof of desertion
has to be considered by taking into consideration the concept of marriage which
in law legalises the sexual relationship between man and woman in the society
for the perpetuation of race, permitting lawful indulgence in passion to prevent
licentiousness and for procreation of children. Desertion is not a single act
complete in itself, it is a continuous course of conduct to be determined under
the facts and circumstances of each case. After referring to host of authorities
and the views of various authors, this Court in Bipinchandra Jaisinghbhai Shah
v. Prabhavati [AIR 1957 SC 176] held that if a spouse abandons the other in a
state of temporary passions, for example, anger or disgust without intending
permanently to cease cohabitation, it will not amount to desertion. It further
held:

“For the office of desertion, so far as the deserting spouse is concerned, two
essential conditions must be there, namely (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. The petitioner for divorce bears the burden of proving those elements
in the two spouses respectively. Here a different between the English law and
the law as enacted by the Bombay Legislature may be pointed out. Whereas under
the English law those essential conditions must continue throughout the course
of the three years immediately preceding the institution of the suit for
divorce, under the Act, the period is four years without specifying that it
should immediately precede the commencement of proceedings for divorce. Whether
the omission of the last clause has any practical result need not detain us, as
it does not call for decision in the present case. 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 ort it may be that the separation and the animus deserendi coincide in
point of time; for example, when the separating spouse abandons the marital home
with the intention, express or implied, of bringing cohabitation permanently to
a close. The law in England has prescribed a three years period and the Bombay
Act prescribed a period of four years as a continuous period during which the
two elements must subsist. Hence, if a deserting spouse takes advantage of the
locus poenitentiae thus provided by law and decide to come back to the deserted
spouse by a bona fide offer of resuming the matrimonial home with all the
implications of marital life, before the statutory period is out or even after
the lapse of that period, unless proceedings for divorce have been commenced,
desertion comes to an end and if the deserted spouse unreasonably refuses to
offer, the latter may be in desertion and not the former. Hence it is necessary
that during all the period that there has been a desertion, the deserted spouse
must affirm the marriage and be ready and willing to resume married life on such
conditions as may be reasonable. It is also well settled that in proceedings for
divorce the plaintiff must prove the offence of desertion, like and other
matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is
not required as an absolute rule of law the courts insist upon corroborative
evidence, unless its absence is accounted for to the satisfaction of the court.”

Following the decision in Bipinchandra’s case (supra) this Court again
reiterated the legal position in Lachman Utamchand Kirpalani v. Meena alias Mota
[AIR 1964 SC 40] by holding that in its essence desertion means the intentional
permanent forsaking and abandonment of one spouse by the other without that
other’s consent, and without reasonable cause. For the offence of desertion so
far as 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. For holding desertion proved 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.

To prove desertion in matrimonial matter it is not always necessary that one of
the spouse should have left the company of the other as desertion could be
proved while living under the same roof. Desertion cannot be equated with
separate living by the parties to the marriage. Desertion may also be
constructive which can be inferred from the attending circumstances. It has
always to be kept in mind that the question of desertion is a matter of
inference to be drawn from the facts and circumstances of each case.

There is another aspect of the matter which disentitles the appellant from
seeking the relief of divorce on the ground of desertion in this case. As
desertion in matrimonial cases means the withdrawal of one party from a state of
things, i.e., a marital status of the party, no party to the marriage can be
permitted to allege desertion unless he or she admits that after the formal
ceremonies of the marriage, the parties had recognised and discharged the common
obligation of the married life which essentially requires the cohabitation
between the parties for the purpose of consummating the marriage. Cohabitation
by the parties is an essential of a valid marriage as the object of the marriage
is to further the perpetuation of the race by permitting lawful indulgence in
passions for procreation of children. In other words, there can be no desertion
without previous cohabitation by the parties. The basis for this theory is built
upon the recognised position of law in matrimonial matters that no-one can
desert who does not actively or wilfully bring to an end the existing state of
cohabitation. However, such a rule is subject to just exceptions which may be
found in a case on the ground of mental or physical incapacity or other peculiar
circumstances of the case. However, the party seeking divorce on the ground of
desertion is required to show that he or she was not taking the advantage of his
or her own wrong.

In the instant case the appellant herself pleaded that there had not been
cohabitation between the parties after the marriage. She neither assigned any
reason nor attributed the non-resumption of cohabitation to the respondent. From
the pleadings and evidence led in the case, it is apparent that the appellant
did not permit the respondent to have cohabitation for consummating the
marriage. In the absence of cohabitation between the parties, a particular state
of matrimonial position was never permitted by the appellant to come into
existence. In the present case, in the absence of cohabitation and consummation
of marriage, the appellant was disentitled to claim divorce on the ground of
desertion.

No evidence was led by the appellant to show that she was forced to leave the
company of the respondent or that she was thrown away from the matrimonial home
or that she was forced to live separately and that the respondent had intended
animus deserendi. There is nothing on record to hold that the respondent had
ever declared to bring the marriage to an end or refuses to have cohabitation
with the appellant. As a mater of fact the appellant is proved to have abandoned
the matrimonial home and declined to cohabit with the respondent thus forbearing
to perform the matrimonial obligation.

In any proceedings under the Act whether defended or not the court would
decline to grant relief to the petitioner if it is found that the petitioner was
taking advantage of his or her own wrong or disability for the purposes of the
reliefs contemplated under Section 23(1) of the Act. No party can be permitted
to carve out the ground for destroying the family which is the basic unit of the
society. The foundation of the family rests on the institution of a legal and
valid marriage. Approach of the court should be to preserve the matrimonial home
and be reluctant to dissolve the marriage on the asking of one of the parties.

For upholding the judgment and decree of the Family Court, Shri Dinesh Kumar
Garg, the learned counsel appearing for the appellant submitted that as after
the decree of divorce the appellant had remarried with one Sudhakar Pandey and
out of the second marriage a child is also stated to have been born, it would be
in the interest of justice and the parties that the marriage between them is
dissolved by a decree of divorce. In support of his contention he has relied
upon judgments of this Court in Anita Sabharwal v. Anil Sabharwal [1997 (11) SCC
490], Shashi Garg (Smt.) v. Arun Garg[1997 (7) SCC 565], Ashok Hurra v. Rupa
Bipin Zaveri [1997 (4) SCC 226] and Madhuri Mehta v. Meet Verma [1997 (11) SCC
81].

To appreciate such a submission some facts have to be noticed and the interests
of public and society to be borne in mind. It appears that the marriage between
the parties was dissolved by a decree of divorce vide the judgment and decree of
the Family Court dated 8.7.1996. The respondent-husband filed appeal against the
judgment and decree on 19.1.1997. As no stay was granted, the appellant
solemnised the second marriage on 29.5.1997, admittedly, during the pendency of
the appeal before the High Court. There is no denial of the fact that right of
at least one appeal is a recognised right under all systems of civilised legal
jurisprudence. If despite the pendency of the appeal, the appellant chose to
solemnise the second marriage, the adventure is deemed to have been undertaken
at her own risk and the ultimate consequences arising of the judgment in the
appeal pending in the High Court. No person can be permitted to flout the course
of justice by his or her overt and covert acts. The facts of the cases relied
upon by the learned counsel for the appellant are distinct having no proximity
with the facts of the present case. In all the cases relied upon by the
appellant and referred to hereinabove, the marriage between the parties was
dissolved by a decree of divorce by mutual consent in terms of application under
Section 13B of the Act. This Court while allowing the applications filed under
Section 13B took into consideration the circumstances of each case and granted
the relief on the basis of compromise. Almost in all cases the other side was
duly compensated by the grant of lumpsum amount and permanent provision
regarding maintenance.

This Court in Ms.Jorden Diengdeh v. S.S. Chopra [AIR 1985 SC 935] suggested for
a complete reform of law of marriage and to make a uniform law applicable to all
people irrespective of religion or caste. The Court observed:

“It appears to be necessary to introduce irretrievable breakdown of marriage and
mutual consent as grounds of divorce in all cases. …. There is no point or
purpose to be served by the continuance of a marriage which has so completely
and signally broken down. We suggest that the time has come for the intervention
of legislature in these matters to provide for a uniform code of marriage and
divorce and to provide by law for a way out of the unhappy situation in which
couples like the present have found themselves.

Marriage between the parties cannot be dissolved only on the averments made by
one of the parties that as the marriage between them has broken down, no useful
purpose would be served to keep it alive. The legislature, in its wisdom,
despite observation of this Court has not thought it proper to provide for
dissolution of the marriage on such averments. There may be cases where, on
facts, it is found that as the marriage has become dead on account of
contributory acts of commission and omission of the parties, no useful purpose
would be served by keeping such marriage alive. The sanctity of marriage cannot
be left at the whims of one of the annoying spouses. This Court in V. Bhagat v.
Mrs.D.Bhagat [AIR 1994 SC 710] held that irretrievable breakdown of the marriage
is not a ground by itself to dissolve it.

As already held, the appellant herself is trying to take advantage of her own
wrong and in the circumstances of the case, the marriage between the parties
cannot be held to have become dead for invoking the jurisdiction of this Court
under Article 142 of the Constitution for dissolving the marriage.

At this stage we would like to observe that the period of limitation prescribed
for filing the appeal under Section 28(4) is apparently inadequate which
facilitates the frustration of the marriages by the unscrupulous litigant
spouses. In a vast country like ours, the powers under the Act are generally
exercisable by the District Court and the first appeal has to be filed in the
High Court. The distance, the geographical conditions, the financial position of
the parties and the time required for filing a regular appeal, if kept in mind,
would certainly show that the period of 30 days prescribed for filing the appeal
is insufficient and inadequate. In the absence of appeal, the other party can
solemnise the marriage and attempt to frustrate the appeal right of the other
side as appears to have been done in the instant case. We are of the opinion
that a minimum period of 90 days may be prescribed for filing the appeal against
any judgment and decree under the Act and any marriage solemnised during the
aforesaid period be deemed to be void. Appropriate legislation is required to be
made in this regard. We direct the Registry that the copy of this judgment may
be forwarded to the Ministry of Law & Justice for such action as it may deem fit
to take in this behalf.

There is no merit in these appeals which are dismissed with costs throughout.

(R.P. SETHI)

(Y.K. SABHARWAL)

January 8, 2002