Jammu & Kashmir High Court
on 15 September, 1988
Equivalent citations: AIR 1990 J K 7
Bench: R Sethi
JUDGMENT R.P. Sethi, J.
1. Leading cruelty and desertion the respondent-wife sought the dissolution of marriage by a decree of divorce under Section 13 of the Jammu and Kashmir Hindu Marriage Act (herein-after referred to as ‘the Act’) in the trial Court of Sub Judge, Reasi. It was contended by the respondent-wife that the marriage between the parties was solemnized on Oct. 13, 1976 according to the Hindu rites and customs. Firstly after one year the husband met with the serious accident and lost his mental equilibrium for some time.
i The relationship between the parties became strained and deteriorated day by day. During the period of more than four years the respondent alleged to have beaten her and subjected herself to cruelty by her husband.
The treatment of the husband with the wife for the aforesaid period is alleged to be cruel and barbarous. It is alleged that the husband defamed the wife by making groundless and false charges against her character. She was deserted wilfully and without any reasonable cause since Oct. 1979. The wife was forced to leave the company of her husband and was putting up in her parental house at Reasi against her will in constrained and forced circumstances created by her husband. The respondent is alleged to have been persuaded by the father of the wife to come and live with her at Reasi but despite all efforts he did not show any change in his attitude towards wife. As the parties were living separately the wife sought the dissolution on the ground of desertion.
2. In the objections filed on behalf of the husband the marriage between the parties and the occurrence of accident is not disputed. It is submitted that as a result of the accident the husband suffered a serious brain injury and remained in coma for some time. The wife instead of behaving like a pious Hindu wife and to help the husband at the time of his accident and injury, deserted the husband and did not even think it proper to attend to her husband. The wife was responsible for the deterioration of the relationship and it is submitted that in fact the wife has deserted the husband The petition has been filed mala fide with the objection of getting divorce on concocted grounds. It was further submitted that the petition was not bona fide as the wife was taking the advantage of her own wrong.
3. On the pleadings of the parties the trial Court framed the following issues : —
1. Whether the application has not been properly verified, if so, what is its effect?
2. Whether the respondent has been treating the petitioner with cruelty? OPP
3. Whether the respondent has wilfully deserted the petitioner without any reasonable and probable cause? OPP
4. The petitioner-wife produced Mohan Lal, Harbans Lal, Sh. Hem Raj Sh. Rishi Kumar Koushal, Shri Brij Mohan, Shri Ashok Dhaman, Sh. Anand Saroop and Shri Chuni Lal as her witnesses besides appearing herself as her own witness. The respondent did not produce any evidence except getting his own statement recorded.
5. After appreciating the evidence leu by the parties the trial court came to the conclusion that the wife had proved the issues regarding cruelty and desertion and eventually directed the passing of a decree of divorce under Section 13 of the Act. Aggrieved by the judgment and decree of the trial court the present appeal has been filed in this court on various grounds including the one that the court below has not properly appreciated the evidence led in the case and that the issues framed were not proved in favour of the wife. It is further submitted that even if the allegation regarding cruelty and desertion stood proved no decree could have been passed in favour of the wife because according to her husband she had condoned the acts of cruelty and desertion as complained by her in the petition. The husband had also filed an application under Section 9 of the Act praying for restitution of conjugal rights. The trial court despite consolidating both the petitions did not pass any order with respect to the petition of the husband.
6. During the pendency of the proceedings the husband filed an application in this court being Civil Misc. Petition No. 484 of 1988 praying therein to grant maintenance pendente lite as also the expenses of litigation incurred by him. He has also filed a petition for the grant of permanent alimony and maintenance which has been registered as Civil Misc. Petition No. 405 of 1988.
7. I have heard the learned counsel for the parties and have perused the record.
8. A perusal of the statement of the witnesses produced by the appellant could show that the wife had proved that the husband had not provided her any maintenance during the period of desertion. It is also proved on the basis of evidence that the husband had been ill-treating her and despite several attempts made by her parents to take back and to rehabilitate her, the husband did not pay any heed to it. It is also proved that husband had been in the habit of physically assaulting wife and treating her with cruelty.
9. The learned counsel for the appellant-husband has however submitted that as the wife had allowed the husband to have cohabitation with her the acts of cruelty and desertion stood condoned. Referring to the provisions of Section 23 of the Central Act corresponding to Section 28 of the State Act the learned counsel for the appellant has submitted that as the ground of the petition is one of the grounds specified in Clause (i) of Sub-section (1) of Section 13 of the Act which had been condoned, the petitioner-wife was not justified to the grant of the decree of divorce in her favour. The argument though at-tractive on the face of it is without any legal force because the mere resumption of cohabitation would not mean condonation of the acts of , cruelty to claim the benefit of condonation. It has to be proved while resuming cohabitation the other party had completely forgiven the conjugal offence. Condonation mean the complete forgiveness and blotting out of a conjugal offence followed by cohabitation, the whole being done with the full knowledge of all the circumstances of the offence forgiven, so as to restore the offending party to the same position he or she occupied before the offence was commuted. Cohabitation being the essence of the matrimonial tie between the parlies to a marriage, there can be no condonation which is not followed by conjugal cohabitation. It is a conditional waiver of right of the injured spouse to take matrimonial proceedings and is a conditional reinstatement of the offending spouse. Condonation is a conclusion of fact and not of law. The condonation has to be acknowledged and proved as a fact which can he ascertained from the evidence produced in the case and cannot be inferred as a question of law. It was held in AIR 1970 Bom 341 that resumption of cohabitation after desertion must be with intention of forgetting and remitting wrong on condition that spouse whose wrong is so condoned does not thenceforward commit any further matrimonial offence. If a further matrimonial offence is committed, condonation is cancelled and old cause of complaint is revised. Similarly it was held in AIR 1969 Gujarat 21, that mere forgiveness is not condonation to constitute condonation it must completely restore offending party and must he followed by cohabitation. Such a finding can be based only on the evidence produced or the fact brought to the notice of the Court.
10. In the instant case the alleged condonation of the acts complained of were not specifically pleaded by the husband in his objections. There is no evidence of the alleged condonation in the evidence produced by the parties. Even in his statement recorded on 5-5-1986 it was not pleaded that the wife had ever condoned the acts of desertion or cruelty as complained of by her. On the other hand he has specifically stated that after the accident in October, 1986 the wife deserted him and never came back to live with him under his roof and protection. The argument of the learned counsel of the appellant, therefore is without any basis and in fact imaginary which is not born from the record of the case.
11. On the basis of the evidence led in the case and keeping in view the conduct of the parties the trial court has rightly held the desertion and cruelty attributed to the husband have been proved. There is no illegality or error of jurisdiction in the judgment and decree of the trial Court. The judgment and decree of the trial court by which the marriage between the parties was dissolved by the trial court is therefore upheld. ”
12. In Civil Misc. Petition No. 404 of 1988 the husband has claimed that the respondent-wife was employed in National Hydro Project Corporation and was having sufficient means to pay the maintenance to him at the rate of Rs. 500/- per month which is stated to be his minimum requirement. It is submitted as the husband has suffered a head injury which caused permanent defect in the nervous system it was not possible for him to earn sufficient amount of money for his own livelihood. It is alleged that he is totally dependent upon his close relations. The husband has also claimed the grant of permanent alimony at the rate of Rs. 500/- per month from the wife. It is submitted that the husband is entitled to claim the maintenance pendente lite and permanent alimony under Sections 30 and 31 of the Act. The learned counsel for the respondent-wife opted not to file any objections and submitted that the application of the husband for the grant of maintenance was liable to be dismissed as not maintainable under law.
13. The words ‘wife or the husband’ used in this Sections 30 and 31 of the Act are indicative of the fact that any one of the party to the marriage can obtain the relief of maintenance pendente lite and expenses of proceedings and permanent alimony under the Act. The provision made in the Act regarding the grant of maintenance is clearly distinctive from the one contained in Section 125 of the Central Criminal Procedure Code corresponding to Section 488 of the State Criminal Procedure Code. In appropriate case any party to the marriage can be granted the maintenance and expenses of the proceedings under these Sections. The provisions for grant of maintenance and expenses of the proceedings under the Act is in fact a revolutionary provisions made in as much as there is no such corresponding provisions in any enactment relating to matrimonial law in force in any of the countries of the Western Civilization. In those countries, it is only the wife who is entitled to such a right and not the husband. The object of the section is that none of the parties should suffer to get adequate justice from the court on account of his or her financial difficulties. The reasons for enacting the provisions is that a wife or husband who has no independent income sufficient for her or his support or enough to meet the necessary expenses of the proceedings may not be handicapped. Such a provision was made on social and moral grounds with the motive that the party should be able to maintain himself or herself during the pendency of the proceedings as there was no freedom of contracting another marriage. The intention of the Legislature was to provide financial assistance to the indigent spouse during the proceedings and after the passing of the decree. The other spouse is under an obligation to provide the indigent spouse financial assistance so that the proceedings may be conducted and he or she be maintained during the pendency of the proceedings and not forced to starvation or moral degradation. After the passing of the decree of divorce or judicial separation the permanent alimony or the maintenance can be granted for a term not exceeding the life of the spouse or till he or she remarries. The order of maintenance passed in favour of the husband can also be rescinded if it is proved that he has been doing sexual intercourse outside the wedlock. The provisions of Sections 30 and 31 of the Act are independent provisions which are not controlled by any other statute or (he Criminal Procedure Code. The relief under Section 31 of the Act is in fact ancillary and consequential.
14. The facts and circumstances of this case show that husband does not have any independent income and that the respondent-wife is in a position to pay maintenance to the husband in terms of Sections 30 and 31 of the Act. Keeping in view the respondent’s own income and income from other property, the capacity of the petitioner to earn and the conduct of the parties I am satisfied that the petitioner is entitled to the grant of maintenance pendente lite, expenses of the proceedings and also permanent alimony and maintenance. The learned counsel to the respondent-wife has also no objection to the grant of the relief to the husband but has prayed that as she is in temporary service she is not in a position to pay either the expenses of litigation or any maintenance pendente lite or permanent alimony.
15. Keeping in view the facts and circumstances of the case it is ordered that respondent-wife shall pay a sum of Rs. 500/-as expenses of the proceedings and would pay a sum of Rs. 100/- per month as maintenance pendente lite and permanent alimony to the petitioner-husband from the date of application till his death or his remarriage which ever is earlier. Civil Misc. Petition No. 404 of 1988 is, therefore, allowed and disposed of accordingly.
16. Under these circumstances the appeal filed by husband fails and the application for the grant of maintenance pendente lite expenses of the proceedings and permanent alimony are allowed to the extent as detailed herein above.