GAUHATI HIGH COURT
Bench: JUSTICE J.N. Sarma
MONIKA HOM ROY
SMARAN ROY On 5 Jun 2000
Decided On Jun-05-2000
Case Number First Appeal No. 82 of 1995
This interest has been filed by a mother underneath Section 28 of a Hindu Marriage Act opposite a approach of divorce postulated by a Trial Court, that is, by a Additional Deputy Commissioner, East Khasi Hills, Shillong in Divorce Misc. Case No. 10(T) of 1993 (Divorce Misc. Case No. 14 of 1991). The benefaction respondent-husband filed an focus for divorce underneath Section 13(1) of a Hindu Marriage Act on a belligerent of cruelty. The created matter was filed by a wife-defendant and, thereafter, after filing of a created matter another focus was filed to rectify a plaint/petition and that was allowed. Accordingly, an nice petition was filed. The issues were framed by a Trial Court. The following witnesses were examined on interest of a parties :
(1) Samaran Hom Roy, P.W. 1, (2) P.W. 2 C.K. Rudra, (3) P.W. 3, Soumen Sarkar, (4) P.W. 4 Madhab Dutta, (5) P.W. 5 K.P. Roy, (6) P.W. 6, Ram Babu Rai. The justification of a P.Ws. was closed. On 18.3.1994, 2 P.Ws. were examined and a box was shelved for 7.4.1994, a box was bound for justification of a defendant. On 7.4.1994 time was taken on interest of a defendant. The subsequent date was on 21.4.1994. On 21.4.1994 no list of witnesses was furnished on interest of a suspect and no declare was benefaction on interest of a suspect and as such a Trial Court sealed a justification of a suspect and bound a matter for argument. On 30.4.1994 nothing was benefaction on interest of a suspect and a box was shelved compartment 9.5.1994. The Counsel for respondent on 9.5.1994 was also absent and as such a justification was listened on interest of a petitioner/plaintiff and by a impugned visualisation antiquated 16.3.1994 authorised a focus for divorce. Hence this appeal.
2. we have listened Mr. H.R.A. Choudhury, schooled Advocate for a appellant and Mr. P.C. Roy, schooled Counsel for a respondent. Mr. Choudhury creates two, overlay submissions :
(1) That cruelty as purported has not been determined by adequate, sufficient and authorised evidence.
(2) That no event was given to a suspect to cite justification and as such a visualisation is to be set aside holding it to be an ex-parte visualisation and a matter might be remitted back.
3. we take adult a belligerent No. 2 initial for decision. It is good determined element of law that a equine can be taken to a H2O yet it can't be forced to splash water. Ample event was given to a suspect to cite evidence, yet she did not service that opportunity. As such we do not find this to be a defensible belligerent to meddle with a impugned judgment. This row shall mount rejected.
4. The subsequent doubt is that either a anticipating arrived during by a Trial Court with courtesy to cruelty is adequate, sufficient and there is authorised justification to capacitate a Court to pass a approach for divorce.
5. The authorised source of cruelty required to volume to a matrimonial corruption has not been tangible by any government of a Indian Legislature relating to matrimony and divorce nor has a countenance been tangible in a Matrimonial Cause Act, 1950 in England. The risk of any try of giving a extensive clarification that might cover all a cases have been emphasised in a array of decisions Lord Denning forked out, “The categories of cruelty are not closed” Sheldons v. Sheldon, (1966) 2 All.ER 257. The law on a theme had been rather from a motionless cases and Courts in India have supposed and adopted it in a array of cases to conditions in India on a Judge done laws on a theme in England. The supposed authorised clarification in England also in India of a countenance that is rather formidable to conclude is a control of such impression as to have caused danger, for a life, prong or health, corporeal or mental or to give arise to a reasonable confinement of such danger.
6. It might be beheld that cruelty per se was not a belligerent for service by proceed of divorce before to a amendment of a Section 13 of a Act. Before a amending Act of a 1976, cruelty was usually a belligerent for a service of legal separation, in a Clause (b) of Section 10(1) of a Act. The word used in a territory simply states, “Treated a postulant with cruelty”. The intent it would seem was to secrete giving a clarification disdainful or thorough that will abundantly accommodate any sold act or control and to destroy in some circumstances. By a amendment a Legislature must, therefore, supposed to have left to a Court to settle on a contribution and resources of any box either a control amounts to cruelty. Some High Courts have taken a perspective that by a amendment magnanimous proceed have been done for a approach of divorce on a belligerent of cruelty, government reduction enclosed in a aged Section 10(1)(b) hence now have been wiped out. This perspective might not be correct. Though there might be try to liberalise nonetheless in sequence to be entitled to get a approach of divorce on a belligerent of cruelty. The cruelty contingency be brought home and established. In Dastane v. Dastane, we (1981) DMC 293 (SC)=AIR 1975 SC 1534, a Supreme Court examined a matrimonial offence/relief on a belligerent of cruelty as it was accessible in a aged section. The Supreme Court forked out that a Court contingency control itself to find out either cruelty is of such a impression as to means in a mind of a postulant a reasonable confinement that it will be damaging to a health, prong or life of a petitioner. It was also forked out by a Supreme Court that it is not necessary, as underneath a English Law, that a cruelty contingency be of such a impression as to means risk to life, prong or health or as to means a reasonable confinement of such a danger, yet of march harm, damage to health, reputation, a operative career or a like, would be an critical care in last either a control of a respondent amounts to cruelty. Therefore, what a Courts contingency settle is not either a postulant has to yield a assign of cruelty carrying courtesy to a beliefs of English Law, yet either a postulant proves that a respondent has treated him with such cruelty as to means reasonable confinement in his mind that it will be damaging or damaging for him to live with a respondent. The business varies unequivocally from box to case, in Mulla’s explanation on a Hindu Marriage Act during pages 666 and 668, it has been forked out as follows :
“The Court will not try to hunt a colour of a contribution of one box with that of another nor will it tab on any specific exam of ubiquitous application, yet of course, a occupations authorized of by a High Court and quite a Supreme Court continues to be of substantial superintendence in these matters. Some extended ubiquitous principles, that emerge from a preference should be found useful;
(i) Cruelty might be unspoken from a whole contribution and matrimonial family of a parties and communication in their daily life disclosed by a evidence. The doubt either a respondent treated a postulant with cruelty is a singular doubt usually to be answered after all a contribution have been taken into account. Without quoting a specific opinions in that this element was staid by during slightest dual of a Lords who motionless a box of Jamieson v. Jamieson, in a House of Lords, (i) a element might now be pronounced to be good established. It might be taken as equally good determined that it is a wrong proceed to put a several acts or control purported into a array of apart compartments and contend any of them that by themselves they can't press a exam of cruelty and, therefore, that a locality can't press that test.
(ii) It is undesirable, if not illusive to emanate categories of acts or control as carrying or lacking a inlet or peculiarity that describe them able or unqualified in all resources volume to tangible cruelty (i) Nor is it required to review acts as being sum and reduction gross. There might be cases where a acts complained of are in themselves so pardonable that a Court would be fit in not attaching any significance to them. On a other palm acts not critical in themselves might be symptomatic of a press in that a matrimony had come and of a state of mind of a parties. Since cruelty is to be unspoken from a whole of a family between a father and mother it would not be a correct proceed to take adult any purported occurrence one by one and reason that it is pardonable or that it is not hurtful or vicious and afterwards to contend that partially do not amounting to anything grave pithy or serious. The attribute of matrimony in a benefaction context is not to be taken as only a sum of a array of incidents.
(iii) In ubiquitous cruelty is in a impression a accumulative charge. It is not required that a acts complained of contingency be of a certain character. The control might include of a array of acts any of that is critical in itself, yet it might good be even some-more effective, if it consists of a prolonged continued array of teenager acts no one of that could be regarded as critical if taken in isolation. Every such act contingency be judged in propinquity to a attendant resources and a earthy or mental condition or susceptibilities of a trusting associate and a offender’s believe of a tangible or illusive outcome of his control on a other. The age, environments, customary of enlightenment and standing in life of a parties are also matters that might be wilful in last on that side of a line a sold act or march of control lies. The acts and incidents complained of as also a control of a parties contingency be taken together to form a combination design from that alone it can be guarded either a acts of a associate on another should, judged in propinquity to all a surrounding resources be found as volume to cruelty.
(iv) The existence of cruelty depends not merely on a magnitude, yet during times also on a consequences of a offence, tangible or apprehended.
(v) Mental hurt might be joined with earthy hurt in sequence together to found a assign of vicious treatment. Since mental and earthy hurt can, yet they are not ejusdem generis, be taken together, it contingency follow that opposite forms of hurt might be taken together to found a assign of diagnosis that amounts to cruelty (m).
(vi) The primary doubt in these cases is not either a control complained of would be vicious to a reasonable person. The Court has to understanding not with an ideal father or ideal mother yet with, “this male and this woman”. Nor is a Court endangered with a reasonable person. The Court will not start with any priori assumptions that a parties are reasonable people (ml).”
It is on a credentials of this law that we contingency confirm a benefaction box and have to find out either cruelty has been done out or not.
7. we have perused a letters created by her prior partner to a mother before she left a matrimonial house, both a English translations as good as a strange in Bengali. They etch low adore and love that both of them had for any other. Those letters are exhibited as Exhibit I. A oppressive minute was sent by a mother vide Exhibit-4, created to sister of plaintiff and that minute is quoted next :
I am promulgation a man, we send my clothes, sewing tack books and a request book. Yes, a garments and shawl given by you, we keep back, we shall send a things given by you, by creation a list, locker will be closed. Tell Samaran to be during a Bank during a Puja holidays. we wish to lapse a matrimony ring, given to me by Samaran. Tell Samaran to take a diary and a photographs, from doorway to doorway and display them. Tell him to reason these things by his heart (the photographs and a letters) as they are useful to him. Hope so we will try to contend a decency, as we all go to a Hom Roy Clan. we will come and take a rest of my effects during a Puja vacation.
That respond also sent by a mother not to a father yet to a sister of her husband, Renu by name. This shows that she does not have any passive attitude. It is unequivocally formidable to find a ideal couple. It is common and normal to find mother and father who came to live together from opposite background. The approach of matrimony life is that we should adjust. If there is no composition between a mother and father a marital life shall collapse. A integrate can make it a pacific life by their possess control and poise if both of them try to adjust themselves. As will be transparent from a letters created by a husband, a mother was not prepared to make even a tiny scapegoat as it is determined from a evidence. There is serve thing, it has been brought home by a justification of a neighbour, who staid in a justification that a mother used to misbehave even during a open place with a father and that also is highlighted by a Trial Court in a judgment. The matter does not finish there, a mother attempted for and concluded for mutual divorce if she is paid one lakh rupees and accordingly an agreement was executed between a father and mother by extenuation a income receipt, a mother supposed sixty thousand rupees and afterward she did not pointer a mutual divorce petition. Accordingly we do not find any belligerent to meddle with a impugned visualisation of a Trial Court. The cruelty has been determined in this case. Exhibit-3 is a minute created by father to mother to come behind to marital home. To that means a respond vide Exhibit-4 quoted above. Exhibit-5 is another minute created by mother to a neighbour of father wherein also she voiced her inability to live in marital house. The P.W. 1 father deposed as follows :
“In many occasions when we reached my central entertain during Khliehriat around 8.30 p.m. we found a doorway was sealed from inside and after giving many knocks, she never non-stop a doorway and we had been compelled to stay with my neighbours, namely Shri Madhav Dutta and one Souren Sarkar. Ultimately on 17.5.1989 respondent came to my Khliehriat Quarter during about 11.30 a.m. with a chairman whom we do not know and took her belonging and left a residence a same day after abusing me in front of my subordinate staff. In September, 1992, a respondent along with one Advocate approached one Shri C.K. Rudra, Head Assistance, MSEB and my Ex. Engineer for a mutual divorce and a same was staid in front of a Magistrate, First category during Shillong, wherein we paid a divorce upkeep volume for a sum of Rs. 60,000/- (Rupees sixty thousand) as allege and on execution of a mutual divorce box we would compensate again a sum of Rs. 20,000/- (Rupees twenty thousand) as asked by a respondent. Ext.-8 is a agreement sealed before a Magistrate, First Class, Ext. 8(1) is a signature of a respondent and Ext. 8(2) is my signature. Ext. 8(3) is a signature of Shri C.K. Rudra who was a declare for a respondent. Ext. 8(4) is a signature of Shri Ram Rabi Roy who is also one of a witnesses on my behalf. Ext. 8(5) is a signature of Magistrate, First Class with a signature of a Court. After holding a income of Rs. 60,000/- she gave a income receipt antiquated 28.9.1992. Ext.-9 is a pronounced income receipt and Ext. 9(1) is a signature of a respondent. The agreement was for a respondent to pointer a divorce papers for mutual divorce, yet she did not pointer and left Shillong though observant anything.”
8. P.W. 3 Shri Madhab Dutta deposed as follows :
“(a) we used to revisit a entertain of a postulant and we find a respondent several times quarrelling with a postulant and abusing other members of a petitioner’s family. One dusk we found a respondent throwing a crater of tea during a petitioner. On several occasions when we returned from Shillong on central work, a respondent close a postulant out and we requested her to open yet she refused and a postulant was compelled to stay with me for a night.
(b) It is not illusive for any lucid male to live and stay with a respondent.”
9. All a justification review with Exhibits 1 and 2 settle a control of cruelty on a partial of respondent-wife. Accordingly a interest shall mount discharged and a approach of divorce postulated by a Trial Court shall reason a field.
10. But before we partial with a record we contingency give some permanent subsistence to a mother as it is submitted by Shri H.R.A. Choudhury that a mother is not operative and she is vital during a forgiveness of her brother, who is also unemployed. Section 25 of a Hindu Marriage Act provides for permanent subsistence and maintenance. Though Section 25 of a Hindu Marriage Act recognises a rights of a mother and a father to be placed on equal footings in a matter of upkeep when a Court will extend relief, a Court itself essentially supports a wife. A Court is thankful to approach that a father contingency compensate adequate upkeep to a mother as it is not a duty of a Court to concede a lady to lead a life of destitute. The father herein as on currently is an Executive Engineer and a sum of rupees sixty thousand has been paid to a wife, from a date of filing of a focus for divorce a father has not paid any subsistence to a mother save and solely rupees sixty thousand. In that perspective of a matter we make it transparent that a father shall compensate a serve sum of rupees one lakh fifty thousand in lumpsum within a duration of 6 months by equal 4 instalments to a wife. The approach of a divorce shall be effective after a aforesaid volume is paid by father to a wife. The volume shall be paid to a mother by crossed Bank Draft in a name of mother to be sent to her during Karimganj. An comment shall be non-stop in a name of a mother and there during bank during Karimganj a income might be deposited by a father in a comment of a wife. The comment shall be operated by a mother and a Bank shall not concede her to repel a volume during a time. It is unnecessary to contend that a income is for a mother and a Bank shall give reasonable income to a mother during a finish of reasonable interval.