Madras High Court
A.P. Ranga Rao
on 26 September, 1988
Equivalent citations: we (1990) DMC 567
Bench: K Natarajan
JUDGMENT K.M. Natarajan, J.
1. This second interest is destined by a postulant father severe a legality and exactness of a visualisation upheld by a VI Additional Judge, City Civil Court, Madras, in C.M.A. 54 of 1979, confirming a direct and visualisation upheld by a IV Assistant Judge, City Civil Court, Madras, dismissing a petition for retraction of marriage.
2. The contribution that are required for a ordering of this interest can be quickly settled as follows : The appellant (herein after referred to as a petitioner) married a respondent on 9 9-1968, according to standing custom. On comment of a official nuptials she gave birth to a daughter on 3-7-1969. The box of a postulant is that a respondent used to incite him and incite him often. On several occasions she threatened to dedicate suicide. She insisted on a postulant to start a apart investiture after disjunction his tie with a other members of his family, namely, mother, brother, brother’s mom and unwed brother. In or about Mar 1969, a respondent consumed bug poison and she was approved in a Government Stanley Hospital. She forlorn a postulant in Jun 1970. By a involvement of mediators, who consisted of tighten relations, she after assimilated and she again left a chateau in Feb 1971. Subsequently in Oct 1972 she returned. In June-July 1973, she again attempted to dedicate self-murder by immoderate potion pieces. According to him, Mr. V.M. Day, Advocate, attempted to settle a matter amicably, yet of no use. On comment of a several acts of a respondent, he is put to impassioned mental anguish and that a respondent has also grown ulcer. Hence, he filed a petition for retraction of matrimony on a belligerent of abandonment and cruelty. In serve he prayed for control of a teenager child.
3. The pronounced position was resisted by a respondent and she would contend that all a allegations in a petition are untrue. The postulant concluded to compensate Rs. 100 per mensem to her as maintenance. He catastrophic to do so. He after filed O.P. 407 of 1973, for authorised separation. It was not pressed. She went to a chateau of a postulant to reside with him even after a exclusion of a pronounced petition. But it was usually a postulant who unexpected left a chateau yet intimating a respondent. She would state that she is peaceful to reside with her husband, a petitioner. To justify a allegations, the-petitioner examined himself as PW 1 and also examined 7 other witnesses and filed Ex. A. 1 to A. 11. On a side of a respondent, besides examining herself, 3 other witnesses were examined and Ex. B. 1 to B. 3 were marked.
4. The hearing Assistant Judge discharged a petition holding that a postulant has not finished out any of a drift of abandonment or cruelty. He was catastrophic before a appellate court. Hence this second appeal.
5. The second interest was approved on a following estimable doubt of law :–
“Whether in perspective of a finish of a reduce appellate Court that there had been several attempts on a partial of a respondent to dedicate suicide, a belligerent of cruelty has not been finished out within a definition of Section 13(1)(i-a) of the Hindu Marriage Act 1955 ?
6. Learned warn for a appellant, Mr. G.M. Nathan, submitted that within 6 months a matrimony a respondent attempted to dedicate self-murder by immoderate bug poison and that she was taken to a Stanley Medical Hospital and examined by a alloy PW 7 who approved that she consumed bug poison. Subsequently in July, 1973, she again consumed potion pieces and that she was taken to a chateau of one warn V.M. Dev (PW 8) who is his family friend. PW 8 destined his son to acknowledge her in a Stanley Medical College Hospital, Madras PW 5, doctor, treated her. It is upheld by Ex. A. 6 and A. 7. The reduce appellate Court came to a finish that it has been determined that she attempted to dedicate self-murder on those occasions. But a reduce appellate justice hold that a reason for a respondent to dedicate self-murder was a refusal of a appellant to set adult apart chateau and his disliking towards her and as such, it can't be pronounced that a appellant suffered any mental cruelty on comment of a above facts, namely, her try to dedicate self-murder on some-more than one arise that amounted to mental cruelty. Learned warn for a appellant in this tie submitted that a really proceed of a reduce appellate Court is not correct generally in perspective of a introduction of Section 13(1)(i-a), by trait of a amendment Act 68 of 1976 and a ratio laid down by a Supreme Court and High Courts.
7. In a present case, admittedly, a matrimony between a parties took place on 9-9-1968 and a child was innate on 3-7-1969. According to a appellant a respondent was not working like a normal lady and that she was working like chairman influenced with excitable complaint. It is seen that a respondent insisted a appellant to apart from his family that consisted of his mother, elder brother, brother’s mom and married younger hermit and set adult a apart family, to that a appellant was not agreeable. Even according to a box of a respondent, a appellant’s brother’s mom was obliged for a noise and that her efforts to set adult a apart chateau was not fruitful.
8. It is seen from a justification of PW 7, who is a Civil Assistant Surgeon, trustworthy to a Stanley Medical Hospital, that a respondent was approved into a sanatorium on 14-3-1969 during 8.15 p.m. for immoderate bug torpedo poison. The respondent complained of queasiness and pain in a abdomen. She has settled that she took bug murdering poison during 8 p.m. According to AW 7, a diagnosis also showed that she consumed bug torpedo poison and a medical opinion also was to a same effect. Learned Counsel for a respondent submitted that in cross-examination, this declare has settled that he spoke usually from a annals and a symptoms beheld by his assistants who treated her and hence no faith could be placed on this evidence. The schooled warn also submitted that even a anticipating of a reduce appellate Court on this aspect should not be accepted. we do not find any outcome in a pronounced contention. The justification of PW 7 clearly establishes that her respondent took bug torpedo poison, that she was treated for a same, that there were symptoms of immoderate bug torpedo poison and that that is a diagnosis by a medical authorities. Again, a respondent consumed potion pieces on 30-7-1973 for that she was approved in a Stanley Medical College Hospital. PW 5, Civil Assistant Surgeon, gave diagnosis to her. He had settled that a respondent herself settled that she swallowed potion pieces. He had finished a note of it in a box piece Ex. A. 6, and Ex. A. 7 is her O.P. ticket. Learned warn for a respondent, relying on a answer given by this declare in interrogate that no potion pieces were rescued and that he can't contend possibly she consumed potion pieces, contended that it can't be pronounced that she consumed potion pieces. On a clever reading of a justification of PW 5,1 find that a respondent not usually approved that she had taken in potion pieces, yet also she vomited once or twice. It is also seen that she was given drugs to move a potion pieces out, that she refused to take them and that she also refused to get correct ., treatment. She also refused to given reasons for immoderate potion pieces. Besides a justification of PW 5, we have got a justification of PW 8, an advocate, who mediated and who approved her in a sanatorium by his son PW 5. The appellant also examined PW 2, 3 and 4 to settle a above act of a respondent in attempting to dedicate suicide. It is also in justification that a respondent was in a state of pregnancy when for a initial time she consumed bug poison. In justification she would come brazen with a chronicle that she took it by mistake. But such counterclaim was not taken by her in her counter. As regards a reasons for attempting to dedicate self-murder PW 2 would contend that there were visit quarrels and that on comment of a same, a respondent took bug poison. The justification of PW 4 is to a outcome that in Jun 1973, a respondent was indeed seen holding potion pieces and was concerned to put an finish to her life. With pleasantness to this incident, we have got a justification of a disciple PW 6 who mediated a brawl between a parties. The anticipating of a reduce appellate Court in para 9 of a visualisation is to a effect–
“The reduce justice has taken these instances and has hold that there was no decisive explanation about a expenditure of bug poison or of carrying taken potion pieces. we do not accept this anticipating of a reduce court. As forked out by a Supreme Court, a justice has come to a finish on a majority of probabilities. The justification taken as a whole establishes that a respondent was discontented with her marital life and was deeply influenced and vibrated by a miss of love and pleasantness by her husband. If she had resorted on some-more than one arise to put an finish to her life, it was not given of any dislike for family life, yet given she was discontented with her surroundings.”
Again, in para 10, a reduce appellate Court has forked put–
“Of course, there have been attempts to dedicate suicide, yet on that belligerent it can't be pronounced that a postulant was put to mental agony. It is urged that a poise of a mom was such as to means an impassioned mental dissapoint and wreckage to a health of a petitioner.”
In para 10, it was also observed–
“His acknowledgment that PW we attempted to dedicate self-murder given he was not prepared to set adult a apart residence, indicates that means for melancholy of a respondent. It is not a box of mental cruelty by a respondent, yet a noted mania on a partial of a postulant to rip divided from a other members of his family.”
Finally, a reduce appellate Court gave a finding–
“On a contribution of a case, we am confident that a respondent has not been guilty of mental cruelty, and if a postulant entertained feeling that he has been treated with cruelty, it is due to his possess making. Point No. 1 is found opposite a petitioner.”
It is transparent from a above anticipating of a reduce appellate court, that a respondent attempted to dedicate self-murder on some-more than one arise by immoderate bug poison and holding potion pieces. The reduce appellate Court hold that those acts would not volume to mental cruelty as a appellant was resposible for those acts given he refused to set adult apart family and that he did not like her. It is usually this logic that is now challenged by a schooled warn for a appellant by contending that a refusal of a appellant-husband to set adult a apart family and his disliking is utterly vaporous and if it is determined that there was an try on a partial of a mom to dedicate suicide, a reason for a same has no outcome and a really act would volume to mental cruelty. In this connection, my courtesy was drawn to a fact that before to a amendment Act 68 of 1976, ‘cruelty’ was not shown as one of a drift for divorce, yet it was shown as one of a drift for authorised subdivision after amendment. By trait of a amendment Act, Section 13(1)(i-a) was introduced underneath that ‘cruelty’ was also mentioned as one of a drift for divorce. It is inestimable to quote Section 13(1)(i-a) of a Act–
“13(1) Any matrimony solemnised, possibly before or after a derivation of this Act, may, on a petition presented by possibly a father or a wife, be dissolved by a direct of divorce on a belligerent that a other party-(i). …
(i-a) has, after a solemnisation of a marriage, treated a postulant with cruelty.”
This sustenance came adult for interpretation before a Full Bench of a Bombay High Court in a box reported in Keshacrao v. Nisha, it has been hold :–
“The cruelty contemplated under Section 13(1)(i-a) of a Act conjunction attracts a aged English doctrine of risk nor a orthodox boundary embodied in old Section 10(1)(b). The cruelty contemplated is a control of such form that a postulant can't pretty be approaching to live with a respondent”.
It was therefore hold in that case, that a preference in Madanlal Sharma v. Santosh Sharma, 1980 Mah. LJ 391, does not lay down a law on a indicate correctly.
9. Learned warn for a appellant invited a courtesy of this Court to a preference reported in Shobha Rani v. Madhukar Reddi, AIR 1980 SC 121, wherein it was held–
“The direct for dowry is taboo underneath law. That by itself is bad enough. That amounts to cruelty entitling a mom to get a direct for retraction of marriage.”
It was serve observed–
“The word ‘cruelty’ has not been tangible and could not have been defined. It has been used in propinquity to tellurian control or; tellurian behaviour. It is control in propinquity to or in honour of matrimonial duties and obligations. It is a march of control of one that is adversely inspiring a other. The cruelty might be mental or physical, conscious or unintentional. There might be cases where a control complained of itself is bad adequate and perse wrong or illegal. Then a impact or a damaging outcome on a other associate need not be enquired into or considered. In such cases, a cruelty will be determined if a control itself is valid or admitted.”
The schooled Judge serve observed–
“A new dimension has been given to a visualisation of cruelly. Explanation to Section 498-AI.P.C. provides that any determined control that is of such a inlet as is expected to expostulate a lady to dedicate self-murder would consecrate cruelty. Such determined control that is expected to means grave damage or risk to life, prong or health (whether mental or earthy of a woman) would also volume to cruelty. Harassment of a lady where such nuisance is with a perspective to coercing her or any chairman associated to her to accommodate any wrong direct for any skill or profitable confidence would also consecrate cruelty. The cruelty as a belligerent for retraction of matrimony if not approved requires to be valid on a majority of probabilities as in polite cases and not over a reasonable doubt as in rapist cases.”
Learned warn for a appellant submitted that a try to dedicate self-murder is per se an corruption punishable under the Penal Code, and is like a direct for dowry that is taboo underneath law and that by itself is bad adequate and a same would volume to cruelty as per a preference of their Lordships of a Supreme Court in a box reported in Shobha Rani v. Madhukar Reddi (supra). Certainly, a try to dedicate self-murder would also volume to mental cruelty to a father by a wife. In para 17 of a judgment, it was distinguished —
The cruelty diagnosis might also outcome by a informative dispute of a spouses, in such cases, even if a act of cruelty is established, a goal to dedicate can't be established. The depressed celebration might not get relief, we do not consider that was a goal with that a Parliament enacted Section 13(1)(i-a) of the Hindu Marriage Act. The context and a set adult in that a word ‘cruelty’ has been used in a territory seems to us, that goal is not required component in cruelty. That word has to be accepted in a typical clarity of a tenure in matrimonial affairs. If a goal to harm, harass or harm could be unspoken by a inlet of a control or heartless act complained of, cruelty could be simply established. But a deficiency of goal should not make any disproportion in a case, if by typical clarity in tellurian affairs, that act complained of could differently be regarded as cruelty. The service to a celebration can't be denied on a belligerent that there has been no counsel or determined ill-treatment. The same is also a line of logic adopted by a House of Lords in Collins v. Collins, 1963-2-All ER 966, during page 976 where Lord Evershed said–
‘I am incompetent to accept a grounds that ‘cruelty’ in matrimonial record requires or involves of prerequisite a component of fatality yet we do not of march doubt that if fatality be in fact determined it would be rarely applicable to a assign of guilty.
In my opinion, however, a doubt possibly one celebration to a matrimony has been guilty of cruelty to a other or has treated a other with cruelty does not according to a typical clarity of a denunciation use by Parliament, engage a participation of fatality (or a equivalent); and if this perspective be right it follows, as we try to thick, that a participation of goal to harm on a partial of a associate charged or (which is, we thing, a same thing) explanation that a control of a celebration charged was ‘aimed at’ a other associate is not an essential claim for cruelty. The doubt in all such cases is, to my mind, possibly a acts or control a celebration charged were ‘cruel’ according to a typical clarity of that word, rather than possibly a celebration charged was himself or herself a vicious male or woman.. ..”
It is transparent from a above preference that a correct proceed in matrimonial cases is possibly a acts or control of a celebration charged were vicious according to a typical clarity of that word. Further, a goal to means such cruelty is not a required component and it is no answer that for committing a acts a celebration charged himself was obliged as was finished in box by a reduce appellate Judge. In Narayan Ganesh Dastane v. Sucheta Narayan Dastane, , it was hold that a hazard given by mom to her father that she will put an finish to her life was cruelty towards her husband. In that case, a act of holding poison by mom was hold to be cruelty to her husband. In Savitri v. Mulchand, , it was distinguished in para 28 during page 57 :
“The respondent postulant father had deposed that on his relapse from London a mom took poison when she saw him, and that she was saved by Jethanand. Attempt to dedicate self-murder with a perspective to require a father into doing something that he is not prone to do, for whatever reason, we am of a view, is also a cruelty on a husband. Justice Leila Seth in her visualisation reported as Shakunlala Kumari v. Om Prakash Ghai, I (1981) DMC 25=AIR 1981 Delhi 53, also pronounced that hazard to dedicate self-murder by a mom amounts to cruelty on a husband. In my perspective try to dedicate self-murder by holding poison would also volume to cruelty.”
In that case, a schooled Judge referred to a preference reported in Narayana Ganesh Dastane v. Suchita Narayana Dastane, (supra), also. Applying a ratio mentioned in a above quoted decisions to a contribution of this case, it can be hold that merely given a father was not acceptable to apart from a members of a family and set adult apart family as preferred by his wife, she was not fit in resorting to try to dedicate self-murder by immoderate poison or potion pieces on some-more than one occasion. She could have worked out her pill by holding such authorised movement open to her underneath law. It is not open to her to sojourn in a chateau of a father and bluster to dedicate self-murder by immoderate poison etc. and means mental cruelty to him. In Harbajan Singh v. Amarjeet Kaur, , it has been hold “For these reasons it is determined that a suspect respondent hold out threats of committing suicide. It is unnecessary to supplement that such threats consecrate cruelty.”
Therein also, faith was placed on a preference of a Supreme Court, in Dastane’s box (supra). As already stated, in a present case, a reduce appellate Court came to a conclusion, after incompatible from a perspective taken by a hearing court, that there has been attempts to dedicate suicide. But, he came to a finish that on that belligerent it can't be pronounced that a father was put to mental cruelty. According to a reduce appellate Judge, a acknowledgment of a father that his mom attempted to dedicate self-murder given he was not prepared to set adult a apart residence, indicates a means for dejection, a appellant-husband should censure himself for his relapse and it is not open to him to contend that a hazard to dedicate self-murder and several acts attributed to a mom would volume to cruelty. In perspective of a ratio laid down in a above decisions, a pronounced logic of a reduce appellate decider is not defensible and on a determined contribution it is transparent that a appellant has finished out a box for mental cruelty so as to get a direct for retraction of matrimony under Section 13(1)(i-a) of the Hindu Marriage Act, as nice by Act 68 of 1976. Thus a estimable doubt of law is answered in foster of a appellant and opposite a respondent.
10. As regards a doubt of desertion, we do not find any anomaly or illegality in a anticipating rendered by both a courts below. Though their matrimony was distinguished in 1968. they lived together compartment about 1973 and according to a appellant, there was abandonment from 1973. It is seen from a justification of PW 1 that even after a orders upheld in O.P. 407 of 1973 she came and lived with him and subsequently she left usually on 22-3-1976. The Original Petition was filed on 25-11-1977 that is reduction than dual years immediately after withdrawal a appellant, and in perspective of Section 13(1)(i-b) a pronounced belligerent is not tenable. It can't be pronounced from a resources that there was any animus deserendi on her partial so as to consecrate desertion. Hence no division is called for in a anticipating on a doubt of abandonment by a respondent wife. However, in perspective of a anticipating on a belligerent of cruelty, a appellant is entitled to a service of retraction of marriage.
11. In a result, a interest is allowed. The visualisation and direct of a courts next are set aside and a petition O.P. 629 of 1977 filed by a appellant is authorised and there will be a direct for retraction of matrimony between a appellant and a respondent under Section 13(1)(i-a) of the Hindu Marriage Act. In a circumstances, of a case, there will be no sequence as to costs.
12. Before interruption with a case, we wish to place on record a profitable assistance rendered by Mr. S. Swaminathan, Advocate, who acted as amicus curiae on interest of a respondent in a case, and my appreciations to him.