Madhya Pradesh High Court
Prem Prakash Rubin vs Smt. Sarla Rubin on 3 May, 1989
Equivalent citations: AIR1989MP236, AIR 1989 MADHYA PRADESH 326, (1989) JAB LJ 573, (1989) MPLJ 571, (1990) 1 CIVLJ 128
JUDGMENT B.C. Varma, J.
1. Applicant, Prem Prakash Rubin and non-applicant, Sarla Rubin were duly married according to Christian rites and in the matrimonial matter are governed by the Indian Divorce Act. The applicant's allegation, however, is that after some time of the marriage, the non-applicant completely withdrew herself from the applicant and would not permit him access. This has caused tremendous agony to the applicant and is a cruelty of high order. The non-applicant has also deserted the applicant for no good cause and is living separately. Allegations as to adultery have also been made. The non-applicant did not contest. Statement of the applicant Prem Prakash was recorded as witness for himself. In the judgment dated 5-10-1988, the learned Additional District Judge found the allegation as to leading adulterous life not proved. It has, however, been found that the respondent was guilty of cruelly and even attempted to assault the applicant with knife. Further finding is that she has withdrawn from the petitioner's society. A decree for divorce on these findings have been passed. This decree has been referred to this Court for confirmation.
2. After perusal of the record and after hearing the learned counsel for the applicant, we are of the opinion that the decree passed by the lower Court is not correct. Section 10 of the Indian Divorce Act is as follows :
"10. When husband may petition for dissolution. -- Any husband may present a petition to the District Court or to the High Court, praying that his marriage may he dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.
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It is obvious from the reading of the aforesaid provision that a husband governed by the Indian Divorce Act can make a petition for dissolution of marriage only on the ground that the wife is living in adultery. The Act envisages no other ground for such a decree in a petition by the husband. Since the lower Court has expressly held the alleged adultery on the part of respondent wife not proved and the petitioner also made no attempt to demonstrate that finding as incorrect, we arc of the opinion that the petitioner is not entitled to any decree for divorce.
3. Nevertheless, in view of the findings recorded on other issues and holding the respondent wife guilty of cruelty and wilful desertion of the petitioner, we are of the opinion that the petitioner is entitled to a decree for judicial separation in terms of Section 22 of the Indian Divorce Act. This section reads as follows:
"22. Bar to decree for divorce a mensa et thoro, but judicial sepration obtainable by husband or wife. -- No decree shall hereafter be made for a divorce a mensa et thoro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion without reasonable excuse for two years or upwards, and such decree shall have the effect of a divorce a mensa et thoro under the existing law, and such other legal effect as hereinafter mentioned."
4. It cannot be disputed as a matter of law that where the petitioner is unsuccessful in establishing a case for grant of a decree for divorce, he/she may be given a decree for judicial separation even if not asked for in the petition. An oral request in this behalf would be enough. See Siluvaimani Animal v. Thangiah Nadar, AIR 1956 Mad 421 (FB). The petitioner's deposition in Court, which has remained unrebutted is that whenever proposed, the respondent refused to cohabit with the petitioner. According to him, all pursuation in that behalf failed. Of late and before separation any advance made by him towards cohabitation was strongly refused by the respondent and always caused annoyance to her so much so that she even tried to stab the petitioner by a knife. This refusal to permit sexual relation is said to constitute cruelty on the part of the respondent wife. According to Section 7 of the Act, in all suits and proceedings under the Act, Court can give relief on principles and rules which, in the opinion of the Court, are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief. However, the principles and rules of English law which can be applied are those which do not run counter to the provisions of the Act. The rules and principles of English law must relate to a matter on which both the Act and the Civil Procedure Code are silent. Therefore, in the absence of a definition of 'cruelty' in Indian Divorce Act, the Court in proceedings under the Act can look for its definition in the principles laid down by English Divorce Courts and are entitled to apply the principles of English law in considering whether facts appearing in the case make out cruelty. Under the English law, it is not necessary that the cruelly must be of such a character as to cause danger to life, limb or health or as to give rise to a reasonable apprehension of such a danger. (See Dastane v. Dastane, AIR 1975 SC 1534, Para 30. It will, therefore, not necessary in order to establish cruelty as a ground for judicial separation under Section 22 of the Indian Divorce Act, to establish danger to life, limb or health or to give rise to a reasonable apprehension of such danger. Such cruelty is not restricted to physical cruelty and menial cruelly is also within its fold. Sex plays important role in matrimonial life and cannot be separated from other factors leading to a successful married life. Therefore, conduct of husband or wife which renders the continuance of cohabitation and peformance of conjugal duties impossible amounts to such cruelly. (See Soosarnamma v. Varghese Abraham, AIR 1957 Trav-Co 277. In Squire v. Squire, (1948) 2 All BR 51, it has been held that persistent refusal by wife to have children knowingly that the refusal has resulted in the mental ill-health of husband amounts to cruelty. Again, in Knott v. Knoll, (1955) 2 All ER 305, the view expressed is that permanent and unreasonable starvation of the maternal instinct may by itself be cruel. No doubt the burden to prove the accusation of cruelly is on the part of the person aleging it and, in the present case, is upon the petitioner. There is no rule of law saying that the uncorroborated testimony of the husband appearing as a solitary witness in the case cannot be accepted. This burden can be discharged even by the solitary testimony of the husband, if it inspires confidence. True, it is that such evidence of the husband as to non-access be considered with certain amount of caution, as held in Vira Reddy v. Kistamma, AIR 1969 Mad 235, all the same it is admissible and can well be acted upon. Such is the view expressed by Madras High Court, in Pamela v. Patric, AIR 1970 Mad 92 with which view, we respectfully concur.
5. Tested on the aforesaid principles, in the present case, we find, as referred to above, that the petitioner/husband has pledged his oath to say that the respondent had completely denied to him access and would become violent when asked to share the bed with him. This testimony of the petitioner_ has remained uncorroborated and after going through that evidence, we are satisfied that if is worthy of all credit. We accept that evidence without hesitation. In our opinion, that evidence is sufficient to hold the respondent guilty of cruelty entitling the petitioner to a decree for judicial separation.
6. The lower court has also held on evidence on record that the respondent has withdrawn herself from the petitioner's society since the year 1982, i.e., for a period of more than two years before the presentation of the petition. The petitioner has deposed in the witness box, that the respondent has so deserted him without any reasonable excuse. The desertion in order to be a ground for a decree of judicial separation, means wilfull abstention by one spouse against the wishes of the other and is per se a ground for award of decree for judicial separation. "None can desert who does not actively and wilfully put an end to an existing state of cohabitation". In Cohen v. Cohen, 1940 AC 631 : (1940) 2 All ER 331, attempt to define desertion has been discouraged. However, certain ingredients which the concept of desertion in the field of matrimonial law embraces, are stated to be "(a) it is the separation of one spouse from the other; (b) with an intention on the part of the deserting spouse to put an end to cohabitation; (c) without reasonable cause." In order to bring out a case of desertion, the factum of desertion and the necessary animus to put cohabitation permanently to an end are on the part of the deserting spouse. Al the same time, the deserting spouse must show absence of consent and absence of conduct on his part reasonably causing the deserting spouse to form his intention bringing the cohabitation loan end. The petitioner, in the present case, has deposed on oath that the respondent wife has left his company from 1982 and has ever since started living separately from him. Attempts to bring her back and to resume company tailed. The respondent has not appeared to rebut these allegations. There is no reason why petitioner's assertion in this behalf in the witness box should not be accepted. We, therefore, agree with the lower court and upheld the finding that the respondent deserted the petitioner for more than two years prior to the institution of the proceedings before the lower Court for no reasonable cause and without the consent of the petitioner. On this ground also, therefore, the petitioner is entitled to a decree for judicial separation.
7. We, therefore, decline to confirm the decree for divorce passed by the lower Court. Instead, we make a decree for judicial separation. Under the circumstances, there shall be no order as to costs throughout.