Madhya Pradesh High Court
Smt. Vibha Shrivastava vs Dinesh Kumar Shrivastava on 24 June, 1991
Equivalent citations: AIR1991MP346, I(1992)DMC337, 1991(0)MPLJ975, AIR 1991 MADHYA PRADESH 346, 1991 MPLJ 975, (1992) 2 HINDULR 504, (1992) 1 DMC 337, (1992) JAB LJ 63, (1992) 1 CIVLJ 737
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari
JUDGMENT D.M. Dharmadhikar, J.
1. This case is a typical instance of matrimonial mal-adjustment between couples who are both employed in service at two different places. The wife/ appellant is serving as a teacher in a private school at Rajnandgaon. The husband/respondent is working as Field Supervisor in a Rural Bank in village Latabod, in Rajnandgaon district. They were married on 14-7-1986 and at the time of their marriage also they were employed. For a few months after the marriage they had a happy married life and now they have a daughter aged about 3 years. According to the husband, the wife left the matrimonial home on 16th Nov., of 1986 when he was away on his duty. Before leaving the matrimonial home she had sent a letter of resignation from her service by registered post on 14/11/1986. The complaint of the husband is that thereafter be made several approaches personally, in writing and through his relations to persuade the wife to return to the matrimonial home but she persistently refused. Her insistence was that she would continue with her service and the husband should live with her at Rajnandgaon.
2. The husband's case is that the above persistent refusal of the wife to give conjugal company to the respondent amounts to cruelty and a good ground for grant of a decree of divorce. The petition for divorce was filed on 25/4/88.
3. The wife opposed the petition and in her reply stated that she was forced to submit resignation from her service by the husband and his relations during their joint stay after their marriage in the husband's house. She later withdrew the resignation and resumed her service. According to the wife, she left the husband's home because grave differences and serious misunderatanding had developed between the two families so much so that her living at husband's place had become impossible. It was explained by her that the husband's sister was married to the brother of the wife under a custom called 'Gurwat' which means mutual exchange of daughters in marriages between the two families. According to the wife, since the other marriage between the husband's sister and brother of the wife has broken down for some reason, the wife was subjected to ill-treatment. The wife, therefore, took a plea that in view of the above breach in relationship between the families she cannot for ever give up her service and be dependent on the husband for all times who has no sufficient source of income to maintain all members of the family in his parental house at Rajnandgaon.
4. The husband and the wife both gave their own versions in their depositions of their differences and cause of separation. He was very emphatic in his statement in the Court that he would not like his wife to serve and would wish her to return to him to serve the family as a house wife. He admitted that the conduct of the wife during her stay with him was good but asserted that he would take her back only on the condition of her resigning from service. In his cross-examination he admitted that during the marriage negotiations, he was aware that she was employed but he had expressed that he would decide upon their future course of action with regard to her service, keeping in view the circumstances that might emerge after their marriage. When suggested on behalf of the wife whether he would like to attend to his duty on service by living jointly with her at Rajnandgaon, he flatly refused.
5. The wife in her statement in the court gave her own version of the cause of their separation. It was stated that after the marriage and after her vacations were over when she proposed to return to her in laws from the place of her service, the husband did not permit her and forced her to send a letter of resignation from service. She stated that she was sent to her parents with a warning that she should return only after leaving the service. She maintained her past attitude and stated that keeping in view the financial status of her husband and the circumstances obtaining in her husband's house she did not think it wise to give up her service. In her cross-examination she stuck to the same position and stated she cannot leave her service permanently and continuously live with her husband only as house wife. She expressed her willingness to meet and live with him as and when time and occasions permit.
6. The trial Court on the basis of the above pleadings and the evidence of the parties granted a decree of divorce in favour of the husband holding that persistent refusal of the wife 'to permanently live with the husband after leaving service amounts to an act of 'cruelty' as the husband is deprived of married life and conjugal happiness.
7. The question before me is whether the conduct of the wife, as disclosed from the evidence on record, amounts to 'cruelty' against the husband and justifies a decree of divorce on that ground. Learned counsel for the wife submitted that the alleged acts constitute 'desertion' which is a distinct ground of divorce under Section 13(l)(i-b) of the Hindu Marriage Act is, 'desertion' is for a continuous period not less than two years. The petition by the husband in this case was filed within less than a period of two years from the date of the alleged desertion of the wife. The argument, on behalf of the wife, is that by describing on set of 'desertion' as an act constituting 'cruelty' an attempt is being made to obtain divorce within less than two years statutory period provided under the above provision of the Act. The second submission of the learned counsel for the wife is that the petition lacks in material particulars of 'cruelty' and the only act of the wife living separate from the husband is not a ground to justify the decree of divorce.
8. Learned counsel for the husband/respondent supported the decree of the trial Court by arguing that denial of marital and sexual life to the husband by the wife by refusing to permanently return to him is an act of both mental and physical cruelty. Reliance is placed on Mrs. Rita Nihawan v. Balkishan Nihawan, AIR 1973 Delhi 200, Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121, Avinash Prasad Shrivastava v. Chandra Mohini, AIR 1964 All 486 and Gaya Prasad v. Mst. Bhagwati, AIR 1966 Madh Pra 212.
9. The real question before me is whether the conduct of the wife in insisting upon continuing with her employment and refusal to permanently live with the husband at his place can be said to be an act of 'cruelty' justifying decree of divorce. It is true that the orthodox concept of the Hindu wife is that she is expected to be Dharmpatni Ardhangini, Bharya or Anugamini. The literal meaning is that she has to follow the husband and be in his company always as a part of his own body. This orthodox concept of wife and expectations from her to subject herself to husband's wishes has undergone a revolutionary change with education and high literacy in women and with recognition of equal rights to women in the constitution and abolition of sex distinction in all walks of life. She is a partner in marriage with equal status and equal rights with the husband. The provisions of the Act have to be understood and given effect to in the light of the provisions of the constitution which does not permit discrimination on the ground of sex, excepting right to receive favourable treatment to a limited and permissible extent as provided in Article 15(3) of the Constitution of India. As marriage partners no partner can claim a better or superior right over the other. It is true that married life means joint living of the parties to the marriage for mutual conjugal happiness and sexual life. But where both the parties to the marriage employed in service or engaged in profession or vocation of their choice, the nature of their married life is and should be such as permitted by the nature of their employments or avocations. The question before me is whether a Hindu husband has a right to insist that the wife should leave her service and live with him as his dependent only to discharge her marital obligations towards him, their children and the members of the family of the husband. A same proposition can be posed for the wife as to whether she has a right to insist that the husband should enjoy so much of married life as would be permitted by the nature of employment of the wife in service at the place away from him. Such problems between the modern couples are on increase naturally because there are large number of marriage partners who are educated and have a career of their own in service or profession and they want to continue with them during the whole period of their married life.
10. Normally, the English decisions are not taken aid of for resolving the marriage disputes amongst Hindus because of the great difference between the social custom, the style ofliving and the nature of two societies Indian and English. But on this aspect and for resolving this sort of a dispute between the couples who are both engaged in service, in my opinion, some assistance can be had from English decisions where similar problems arise between couples and divorce petitions are filed by the parties on the ground either of 'desertion' or 'cruelty'. In Dunn v. Dunn, (1948) 2 All ER 822, in similar circumstances and on similar difference of opinion between the couple a decree of divorce was refused to the husband and it was stated thus :--
"It is simply a proposition of ordinary good sense arising from the fact that the husband is usually the wage earner and has to live near his work. It is not a proposition which applies in all cases. The decision where the home should be a decision which affects both the parties and their children. It is their duty to decide it by agreement, by give and take, and not by the imposition of the will of one over the other. Each is entitled to an equal voice in the ordering of the affairs which are their common concern. Neither has a casting vote, though, to be sure, they should try so to arrange their affairs that they spend their time together as a family and not apart. If such an arrangement is frustrated by the unreasonableness of one or the other, and this leads to a separation between them, then the party who has produced the separation by reason of his or her unreasonable behaviour is guilty of desertion. The situations which may arise are so various that I think it unwise to attempt any more precise test than that of unreasonableness."
11. This view was followed in Me Gowan v. Me Gowan (1948) 2 All ER 1032, where relying from the earlier case (1948 (2) All ER 822) (supra) one of the Judges states thus:--
"The authorities referred to by my Lord make it clear that neither husband nor wife has any legal right to dictate the whereabouts of the matrimonial home. In the event of any unfortunate difference of view the rights of the parties must be governed by reasons."
12. In the book of Bromley on Family Law this right between married couples is considered as the right to 'consortium'. A note is taken of the modern view by the author statingthus:--
"Wife is no longer the weaker partner but both spouses are joint co-equal heads of the family. It seems to be clear that at the present day a husband has a right to the consortium of his wife, and the wife to the consortium of her husband, and these rights must now be regarded as exactly reciprocal. Consortium, then, connotes as far as possible the sharing of a common home and a common domestic life. The incidents of consortium are capable of considerable variation and clearly will depend upon such factors as the age, health, social position and financial circumstances of the spouses. It is the duty of the spouses to live together as far as their circumstances will permit....... The modern view, however, is that this, like other domestic matter of common concern, is something in which the wife too has a right to be heard and which the spouses are bound to settle by agreement..... Moreover, whatever arrangements the husband proposes must be reasonable from the wife's point of view; he cannot, for example, insist upon her living with his mother when the two women obviously will . not be able to share the same house."
"The practical importance of the question of the right to choose the matrimonial home lies in the fact that where the spouses separate as a result of their inability to agree on where the home is to be, it is the spouse who is acting unreasonably who will be in desertion. Where both act unreasonably or, at least, where it cannot be said that either clearly has right upon his side, it would seem that neither can allege that the other is in desertion."
If any Indian authority on the subject is to be searched I derive some assistance from a passage by Raghvacharia on Hindu Law, Vol. 1, Seventh Edition, at Page-58 wherein it is stated thus:--
"The question as to the course to be adopted if the wife refuses to resign her job and the husband refuses to allow the wife to continue in the job, is more difficult to decide. Mere refusal on the wife's part to resign her job is not a sufficient ground for the husband to seek relief for the restitution of conjugal rights. The court has to decide an the circumstances of each case which of the parties is reasonable. If the attitude of the wife is reasonable the Court may dismiss the suit in its discretionary jurisdiction. If it is unreasonable it will decree the suit on the ground that wife has no just defence to the action,"
13. Taking assistance from the above views expounded above, the test can be applied is of reasonableness. In other words, it is to be decided as to which party is unreasonable in its approach in the matter of joint living. As has been brought out in the evidence on record both are as emphatic as their voice commands to continue with their service and not to leave his/her service and place of work. The husband is posted in a village near Rajnandgaon and the wife is serving at Rajnandgaon. The wife's proposal is that the husband should come to Rajnandgaon and attend the duty in the village where he is posted which is possible for him as he is daily going up and down from Balod to his place of work. The husband's case is that his mother is dead and he has to attend to his retired father and other family members. He is unwilling to leave his family members at Balod and requires the presence of the wife to look after the domestic affairs.
14. Repeated attempts were made in the trial Court as also in this Court for reconciliation. By order passed on 27/11/90 I gave them opportunity to live together and work out a solution or arrangement for their joint living. Both report that the attempts failed. The wife is still insistent that she would not leave her job and lose a steady source of her income. The question before me is whether the conduct of the wife can be said to be unreasonable and amounts to 'cruelty'. As I have commented above the wife being an equal partner in the married life, is not required to obey the dictates of the husband. She cannot also be compelled to give up her service career and be completely dependent on her husband. She is not unwilling to live with him as and when there are occasions to meet. She being in a private service there is no possibility of her transfer to the place of her husband, who is a Bank employee. Her expectation from her husband is, therefore, of reasonable adjustment so that she is not totally required to give up her and source of independent income. She has also stated that the husband is not so financially sound that she should not supplement the income. The husband, however being a Hindu husband has adopted a stiff and uncompromising attitude by taking an unflinching position that he would not receive her back in his house unless she resign her service and agrees to live with him only as a house wife. To me the attitude of the husband appears to be unreasonable. Bromley in his family Law (Fifth Edition) referred to a similar situation in a case arising in England and has commented thus:--
"Another type of case arises when one spouse is obliged to go away for reasons of business or health and has to go away for reasons of business or health and the other cannot or will not go too. If both have good reasons for their conduct, then it may be impossible to allege that either is in desertion. This happened in Walter v. Walter (1949 (65) ITR 680) where the husband and the wife were both working in different parts of London. The husband moved to be nearer his place of work and the wife remained in the former matrimonial home to be near hers. Neither consented to the separation. It was held by Willmer, J. that in such circumstances neither of them could succeed on petitions based upon desertion because neither could prove that the separation was due to the other's fault."
15. Learned counsel appearing for the appellant has placed very strong reliance on the Division Bench case Gaya Prasad v. Mst. Bhagwati, AIR 1966 Madh Pra 212. Relying on the above decision, the contention is that the attitude of the wife and her withdrawal from the society of the husband is an act of 'cruelty' justifying a decree of divorce. In the Division Bench decision (supra) the husband had filed a petition for restitution of conjugal rights and the Court accepted his case that merely because the wife is serving at a different place, she cannot withdraw from the society of the husband. Her employment in service at a different place was held to be not a reasonable excuse for living apart. The decision of the Division Bench was based on a single bench decision of the Punjab High Court in Smt. Tirath Kaur v. Kirpal Singh, AIR 1964 Punjab 28. The aforesaid Punjab High Court decision placed reliance on a passage of Mulla's Hindu Law Para. 555 which is as under:--
"The wife's first duty to her husband is to submit herself obediently to his authority, and to remain under his roof and protection. She is not, therefore, entitled to separate residence or maintenance unless she proves that, by reason of his misconduct or by his refusal to maintain her in his own place of residence or for other justifying cause, she is compelled to live apart from him."
Relying on the above passage of Mulla's Hindu Law the learned single Judge of Punjab High Court held as under (at p. 30 of AIR 1964 Punjab 28):--
"It is not possible to accede to the contention of Mr. Gandhi that the husband in the present case should content himself by visiting his wife whenever he wishes to live with her or cohabit with her or by her coming to live with him occasionally. There can be no bar to such an arrangement being made by mutual consent and concurrence of the parties but I have not been shown any rule or principle in law which would justify the Court holding that the wife can be allowed to virtually withdraw herself from the society of the husband in this manner."
16. The above decision of the Punjab High Court has been quoted by the Division Bench (AIR 1966 Madh Pra 212) (supra) and it has been held as under (at p. 214 of AIR):--
"According to the ordinary notions of Hindu society, the wife is expected to perform the marital obligations at her husband's residence. She can accept service at adifferent place but not so as to clash with the husband's marital rights which she is duty bound to render. It is, therefore, plain that there could only be an arrangement, for staying separately for continuing her service by mutual consent and concurrence of both the parties but she could not impose her unilateral decision on the husband by merely stating that she had no objection to allow the husband to live with her at the place where she has accepted the service. The attitude taken by the wife in the instant case amounts in our opinion, to a virtual withdrawal from the society of the husband and, therefore, the factum of separation which is established in this case amounts in our judgment, to the matrimonial offence of desertion by the wife-respondent. The wife, in our opinion, was not entitled to reject the husband's offer to bring herto their matrimonial home. As she refused to go with the husband (appeallant), she became guilty of desertion. In our opinion, further the husband (appellant) was not bound to accede to the request of the wife to give up his residence at Bankhedi where he was residing with his parents and to accompany the respondent to the place where she had taken up the service."
17. The Division Bench case (supra) of our Court and the decision of the Punjab High Court were cases where the petition by the husband was for restitution of conjugal rights and conduct of the wife was judged on the facts obtaining and on consideration of question whether he had any reasonable excuse to withdraw from the society of the husband. As I have stated above the husband in the present case before me has not claimed either restitution of conjugal rights or divorce on the ground of desertion. The divorce here has been claimed on the alleged ground of cruelty. The question before me is different as to whether the conduct and attitude adopted by the wife can be said to amount to 'cruel treatment to the husband'. As has come from the deposition of the wife, she wants to be financially independent for two reasons, firstly, according to her, the husband' financial status is not very sound so as to shoulder responsibilities. of all family members; secondly, her feeling of insecurity is natural because of the breaking down of the other marriage between her brother and sister of the husband. In such a situation she feels unsafe to give up the service and lose for all times her financial backing and economic independence. She is very can did in stating that she is prepared for any other arrangement of their joint living without sacrificing her service. She has invited the husband to attend to his duties from Rajnandgaon. She has shown her ever willingness to go to live with him and allow him to her place of posting as frequently as times and occasions permit. The husband, on the other hand, as a Hindu husband has adopted a very still and uncompromising attitude. He would receive the wife only on the condition that she leaves the service for all times and remains under his roof only as a domestic wife to discharge marital obligations towards him and duties towards members of his family as daughter-in-law of the house. In such a situation, which of the two parties is unreasonable has to be judged to uphold or otherwise the alleged charge of cruelty against her by the husband.
18. As I have slated the test applied in such situations between married couples is of 'reasonableness'. To me, the wife's insistence to continue with her service and at the same time to adjust her marital life cannot be said to be wholly unreasonable. The husband's attitude, however, appears unreasonable. He has adopted an obstinate and uncompromising attitude and would not accept her except on the condition of her leaving the service. The husband thus wants to keep her under his domination and as his dependents position in which the wife would feel herself completely under subordination and insecure. The husband's conduct not to accept any practical solution so as to permit service career to both of them appears unreasonable. Even a suggestion to have joint house at a place from where he can conveniently attend to his duties in a out-skirt village where he is posted, to look after his family members and at the same time to lead a married life, is not acceptable to him. Even if it is held that the husband's attitude is reasonable and he is within his rights to expect from the wife that she should constantly live with him and attend to his sexual and domestic needs, yet as the attitude and conduct of the wife, in the circumstances, in which she finds herself, cannot be said to be unreasonable, she cannot be held guilty of the matrimonial offence of 'cruelty' so as to justify a decree of divorce. The Division Bench of this Court (AIR 1966 Madh Pra 212) (supra) and Punjab High Court case (AIR 1964 Punjab 28) (supra) has placed reliance on a passage of Mulla's Hindu Law, quoted above, in which one of the duties of a Hindu wife stated to be is to live with her husband wherever he likes and to obey him. The orthodox concept of Hindu wife is to recognize her as a marriage partner having only a domestic role in the house of the husband. This orthodox concept has lost its relevance in modern Hindu society where with advanced education of women, a Hindu wife is also capable of seeking employment and having a professional career of her own. The concept of 'cruelty' in the matrimonial law is not fixed or rigid and the Act has purposely not defined the word 'cruelty' the concept of Cruelty may vary from couples to couples depending upon the peculiar circumstances, intellectual level, financial and social status. In modern Hindu society it would be unjust to the fair sex to look at the Hindu wife only as a marriage partner with a role confined to four walls of her husband's home. She cannot be forced to compromise herself to a secondary role in the husband's house nor can she be expected to subject herself to the unreasonable dictates of her husband. Any other attitude towards modern Hindu women is bound to be little her status in Hindu society and would deter full growth of her personality in and outside the house.
19. In Raghavachariar's Hindu Law, Seventh Edition, Volume-2, page 1021 on the concept of cruelty in matrimonial law, it is commented as under :--
"It is difficult to define what constitutes 'cruelly' in all cases and each case has to be judged on its own facts and circumstances, having regard to the conduct of the parties, their previous relations to each other, their status in life, the particular acts of cruelty alleged and the cases that precipitated it, state of health of the parties and numerous features which cannot be brought in and confined to an exclusive and inclusive definition. In view of this difficulty of defining cruelty, the Courts have generally confined themselves to the task of determining whether the facts in the particular case in question constitute cruelty."
"This, however, does not mean that one cannot indicate what may or may not amount to cruelty, all the while remembering that the same set of facts may amount to cruelty in the background of the relations between the parties in a particular case while in another set of circumstances those facts may fall below the requisites warranting the conclusion of cruelty. Generally there must be an intention to cause suffering to the other spouse. The concept of cruelty has varied from time to time, place to place, individual to individual, in its application according to the social status of the parties and their economic conditions etc. Character, temperament, status in life are factors to be considered..."
The question of cruelty must be determined from the whole facts and the matrimonial relations between the spouses. It must be determined on a cumulative effect of all the circumstances. The question of cruelty is to be judged on the basis of evidence on record and totality of the circumstances of the case.
20. In the light of the above legal position, even assigning a very wide meaning to the word 'cruelty', I have not been able to persuade myself to hold that a wife, who because of her feeling of her financial insecurity, wants to have a source of income from her independent earning, is acting cruelly against her husband who expects her to live with him and sacrifice her service career and financial independence. The wife in adopting the attitude she has manifested in her conduct cannot be said to be acting with an intention to cause any mental or physical suffering to the husband. 'Cruelty' is a ground of divorce different from grounds on which an aggrieved spouse may claim a decree of restitution of conjugal rights for divorce based on desertion. Separation between spouses on which a; husband may claim restitution or divorce based on desertion may not necessarily be a good ground constituted cruelty for decree of divorce. The Division Bench decision of this Court (AIR 1966 Madh Pra 212) (supra) arose from a petition filed by the husband for restitution of conjugal rights and for reasons already stated above is distinguishable.
21. In the facts and circumstances of this case I am clearly of the opinion that the wife in the peculiar predicament in which she finds herself cannot be held to be guilty of any matrimonial offence of cruelty so as to justify grant of decree of divorce in favour of the husband.
22. Looking to the age and education of the parties this Court, however, hopes that wisdom will dawn on them and both will reunite having regard to each other's ambitions. They should adjust their married life in a way to ensure independent social and financial status to themselves and also give utmost importance to the interest of their child to whom they are duty bound to bring up with parental love. Mutual adjustment between the spouses is the second name of the happy marriage.
23. Consequently, the appeal is allowed. The judgment and decree of divorce passed by the Court below is hereby set aside. In the circumstances the parties shall bear their own costs.