Patna High Court
Mr. Radha Rajpal vs K.M. Rajpal on 12 August, 1991
Equivalent citations: 1992(1)BLJR123
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the said Act') arises out of a judgment and decree dated 10-5-1989 passed by Shri D.N. Cbakraborty, 1st Additional District Judge in Matrimonial Case No. 49 of 1986-87; whereby and where-under the said learned court granted a decree for judicial separation in terms of Section 10 thereof.
2. The fact of the matter lies in a very narrow compass.
3. The plaintiff-respondent filed aforementioned Matrimonial Cass No. 49 of 19-86-87 for a decree for dissolution of marriage by divorce or in the alternative a decree for judicial separation on the ground of cruelty.
4. The averments in the plaint which are relevant for the purpose of this appeal are contained in paragraphs 7 and 8 of the plaint which read as follows:
7. That, the respondent came to Jamshedpur again in the year 1983 of her own accord and stayed with the applicant for 3 months only. Even during this period the applicant did not find any change in her attitude towards the applicant. The respondent always abuse that the applicant will make his daughters prostitutes and would be living on their income. The respondent went to the extent of saying that the applicant has illicit connections with his own widow sister. The respondent always insulted the friends and relations of the applicant. The respondent told the applicant that she did not like his face; it is nauseating though the applicant is an Engineer he looks like an ordinary labourer. The respondent further told the applicant that his father looked at her with bad intention and evil eyes for immoral purpose and left the house abruptly without any information deserting the applicant and till today the respondent has not joined the applicant.
8. That, the applicants' father died on 10th day of March, 1984 and the respondent was informed about the death of applicant's father by a letter as well as by a Telegram but she did not come to Jamshedpur nor did she give any reply.
5. A written statement was filed on behalf of the defendant wherein the allegations made in the plaint had been denied and disputed.
6. Admittedly the parties were married according to Hindu rites on 31-2-1978.
7. The appellant stated in her written statement that she had lived with her husband for the whole of 1982. She further emphatically denied that she made any accusation as against her husband alleging his connection with his widowed sister or that his father looked at her for bad intention and for immoral purpose.
It was further alleged that the plaintiff-respondent had developed intimacy with one Mamta Sharma who had been living in Jugsalai.
8. It was further alleged that in June 1985, the defendant-appellant came to Jamshedpur after her B.E.D. Examination and it was found that her husband was residing with Smt. Mamta Sharma and her husband.
9. It was further alleged that as the plaintiff in the presence of the defendant tried to go the room of aforementioned Mamta Shanna, the matter was reported to the police but the parties were dissuaded from instituting any criminal case as the prestige of two educated spouses was involved.
10. The appellant, therefore, in her written statement contended that plaintiff himself is guilty of adultery.
11. With regard to the statement made in paragraph 8 of the plaint it was stated that as at the relevant time she was at her parent's house in village Bot Kharik situated in the district of Bhagalpur and she got the news of the death of her father-in-law at a belated stage whereupon she immediately rushed to Jamshedpur but by that time the Sradh ceremony of her father-in-law was over.
According to her she did not receive any telegram in this connection as alleged.
12. The learned court below on the basis of the pleading of the parties aforementioned framed the following issues:
1. Is the suit maintainable?
2. Has the applicant any cause of action or right to sue?
3. Is the suit barred under Section 23 of the Hindu Marriage Act?
4. Has the respondent treated the applicant with cruelty and also has deserted him?
5. Had the applicant sexual intercourse with another woman after the solemnization of his marriage with the respondent?
6. Is the applicant entitled to a decree of divorce or alternately for a decree of judicial separation?
7. To what relief reliefs the applicant is entitled?
13. I must point out before proceeding to discuss the submissions made by the learned Counsel for the parties that the judgment passed by the learned court below is not in accordance with law. It has completely misdirected itself in passing a decree for judicial separation without recording any reason for arriving at his finding that the appellant made any false accusations with regard to the character of the plaintiff-respondent vis-a-vis his sister as also against her father-in-law. Such anon-speaking orders are nullities. Judicial orders must be supported by reasons. In fact the learned court below itself has found that the respondent had been living in adultery with the aforementioned Mamta Sharma.
14. With regard to issue No. 4 the learned court below without discussing the evidences OH record held:
12. On perusal of the evidence adduced by both sides on this issue. I find that the respondent was dissatisfied with the status of her husband right from the start. She had made some accusation as mentioned above which can well be taken to be an act of cruelty to the applicant. It has, however, not been proved that the respondent had deserted the applicant within the meaning of Section 13(1)(ia) of the Hindu Marriage Act. It has come in evidence that the respondent had to go to Bhagalpur and Purnja in connection with her examination and duties. These issues are thus decided.
15. With regard to issue No. 5 the learned court below, held that the plaintiff-respondent had committed adultery with a married woman after his marriage with the appellant. So far as the issue No. 3 is concerned the learned court below held that despite the fact that the respondent had lived in adultery with another woman, the suit is not barred under Section 23 of the said Act.
However, the learned court below instead of granting a decree for divorce granted a decree for judicial separation.
16. In this view of the matter. Mr. Gadodia, learned Counsel appearing on behalf of the plaintiff-respondent rightly submitted that this Court has to consider the evidence on record and pass a judgment on merits of the case.
17. The learned Counsel for the parties have placed before me in extenso the evidences of the witnesses examined on behalf of the applicant as also the evidence of respondent herself and made their respective submissions.
18. Mr. M.Y. Eqbal, learned Counsel appearing on behalf of the appellant submitted that in view of the finding of the learned court below itself that the appellant was not guilty of deserting her husband and further in view of her willingness to live with the plaintiff, no case for judicial separation has been made out.
19. According to the learned Counsel, a husband while his wife is alive if develops illicit connection with another woman, cannot take advantage of his own wrong by filing a suit for decree for divorce in terms of Section 13(1)(ia) of the said Act.
20. The learned Counsel further submitted that even assuming that the evidence brought on record satisfy the requirement of Section 10 of the said Act, it is evident that despite the alleged acts of cruelty on the part of the defendant-appellant; as the couple had been living together till 1986, the plaintiff-respondent thus, must be deemed to have condoned the said alleged acts of defendant-appellant and thus, was disentitled from obtaining a decree for divorce or for judicial separation in view of the provisions contained in Section 23 thereof.
The learned Counsel in this connection has strongly relied upon a Division Bench decision of the Calcutta High Court in Tapan Kumar Chatterjee v. Kamala Chatterjee reported in 1989 (1) Divorce and Matrimonial Cases 428.
21. Sub-section (1) of Section 10 of the Hindu Marriage Act reads as follows:
13. Judicial separation.--(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in Sub-section (i) of Section 13, and in the case of a wife also on any of the grounds specified in Sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.
22. Section 13(1)(ia) of the said Act reads as follows:
13. Divorce.--(1) Any marriage solemnized, whether before or after the commencement of this Act may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party--
(i) ** ** ** (ia) has after the solemenization of the marriage, treated the petitioner with cruelty ; or
23. Cruelty has been denned as willing and unjustifiable conduct of such a nature so as to cause danger to life, limb or health, bodily or mentally, or as to give rise to a reasonable apprehension of such a danger. For the purposes of proving cruelty by one spouse as against the other it is not enough to show that the spouse found to live together difficult, even it the same results in injury to health. The act of cruelty must be as against the plaintiff-respondent's will. The second test of cruelty is that the conduct of the defendant has caused injury to health or mind or there is a reasonable apprehension of such a danger.
24. The applicant-respondent examined three witnesses in support of his case. A.W. 1 is Shri D.A. Reddy who merely stated that on 14th August, 1986 he found the couple quarelling at a public place. According to the A.W. 1 the appellant had been abusing the respondent as a drunkard.
25. No such case has been made out in the plaint.
26. The only case made out as noticed hereinbefore was that the respondent always insulted friends and relations of the applicant. No witness has been examined on behalf of the applicant to prove the said fact. It was not the case of plaintiff-respondent that at any point of time the defendant-appellant had abused the plaintiff at a public place so as to lower down his image in the estimation of his friends.
Further no particulars with regard to the said allegations had been pleaded by the plaintiff at all.
27. A.W. 2, Smt. Surya Rao is the elder sister of the applicant-respondent. Accordingly to this witnesss, the defendant alleged that the plaintiff-respondent had illicit connection with his own widowed sister. The said accusations were allgedly made by the appellant in front of her mother, who has not been examined in this case. Those accusations, according to the said witness were made in the year, 1980.
28. It, therefore, appears strange that although according to the plaintiff-respondent she upon hearing the same had left his house immediately thereafter, as would appear from the statements of A.W. 3 that he was not aware at all about the said story by his sister, till he visited her on a later occassion in 1982. Allegedly on that occasion itself the respondent also gave out that appellant had made accusations against his father also.
29. The conduct of A.W. 2 is not natural and evidenily she has come to depose only at the instance of her brother.
30. It is wholly unlikely that the mother of the plaintiff would not disclose the said fact to her son immediately after the alleged incident took place nor would they take any action in relation thereto as against the defendant-appellant.
31. The evidence of A.W. 2, therefore, cannot be believed at all.
32. In my opinion, it is clear that the appellant bad never made any accusation in this regard to the plaintiff-respondent at all. Futher some statements allegedly made by the appellant in the year 1980 does not appear to have been taken seriously by the plaintiff-respondent inasmuch as from the evidence on records it is evident that he had been living with his wife up to 1986. From Ext. A, A/1 and A/2 which are the letters of 1985 it would be evident that he was maintaining good relationship with his wife.
33. A.W. 3 is the plaintiff himself, He admitted that his wife had appeared in B.Ed, examination. He further admitted that after the B.Ed. examination was over, she came back to Jugsalai. The respondent in his disposition merely stated that the appellant was an unpredictable woman. In his deposition he has not stated as to how by reason of the alleged accusations made by the appellant against him, he had suffered mental agony. He has also not proved his case as made out in paragraph 8 of the plaint.
34. In paragraph 9 of his deposition he merely stated that if his wite lives with him the relationship would be beyond adjustment. Such a case has not been made out in the plaint at all.
35. So far as the allegation to the effect that he had suffered nervous breakdown owing to the conduct of his wife; from Ext. 1 it appears that a letter to the effect that, as he had been suffering from chronic backache with neurological symptom, had been given to him by TISCO. intimating him that be would be entitled to certain benefits as stated therein.
36. The suit for a decree for divorce was instituted on 26-8-1986. Ext. 1, therefore was issued during pendency of this suit. Further, there is nothing to show owing to any act or conduct on the part of the defendent-appellant that appellant had developed the said alleged disease. A chronic backache cannot as such be said to be such a disease which could be caused owing to any acts of omission or commission on the part of his wife.
This witness in his cross-examination has also alleged that the appellant had entered into his house by breaking open the lock. Such an allegation had not been made in the application at all. In his deposition he further said, that the dispute started immediately after honeymoon. Even such a case has not been made in the plaint.
37. This witness has admitted that he has three daughters. The age of the eldest daughter was 10 years, the age of second daughter was 61/2 years' old and the third was four years' old on the date of his deposition.
38. The plaintiff-respondent examined him on 21st January, 1988. It is therefore clear that at least up to 1954 he had been maintaining his relationship with the defendant-appellant. As indicated hereinbefore, from Ext. A series it is evident that even in 1985 he had been maintaining good relationship with his wife.
39. With regard to the allegations made in paragraph 8 of the plaint, the plaintiff in his deposition stated that at the relevant time probably the appellant had been taking her teachers' training course m Saharsa and the news of his father's death was sent 10 the lathers place of the appellant which was situated at village Bot Kharik. According to this witness the quarrel used to take place in his bed room and that too mi daily. He could not state about the date when the appellant made accusations with regard to his illicit connection with his sister.
40. Even in his evidence he could not give the details of other incidents as alleged by him in his plaint.
41. On the other hand, the defendant-appellant, has examined six witnesses. Before the learned court below the defendant had been able to prove that the plaintiff had illicit connection with one Mamta Shanna.
42. The aforementioned finding of issue No. 5 has not been questioned before me. The appellant in her deposition supported her case made out in the written statement. Nothing has been brought to my notice by the learned Counsel for the respondent to show that her statements do not inspire confidence.
43. Taking thus, all facts and circumstances of the case into consideration, I am of the view that the plaintiff-respondent has failed to prove his casa of cruelty.
44. In Dr. N.G. Dastane v. Mrs. S. Dastane , the Supreme Court held:
Cruelty generally, does not consist of a single isolated act but consists in most cases of a series of acts spread over a period of tune. Law does not require that at the first appearance of a cruel act, tm other spouse must leave the matrimonial home lest the continued cohabitation be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the being a purpose of marriage laws.
The evidence of condonation consists here in the fact that the spouses led a normal sexual life despite the respondent acts of cruelty. This is not a case where the spouses, after separation, indulged in a stray act of sexual intercourse, in which case the necessary intent to forgive and restore may be said to be lacking. Such stray acts may bear more than one explanation. Buin if during cohabitation the spouses, uninfluened by the conduct of the offending spouses, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. There in then no scope for imagining that the conception of the child could be the result of a single act of sexual intercourse and that such an act could be stark animal act unaccompanied by toe nobler graces of marital life. One might then as well imagine that the sexual act was undertaken just in order to kill boredom or even in a spirit of revenge. Such speculation is impermissible Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. Therefore, evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by UEO spouse is proof that the other spouse condoned that, cruelty, Intercourse, of course, is not a necessary ingredient of condonation because there may be evidene otherwise to show that the offending spouse has been forgiven and has been received basis into the position previously occupied in the home, but intercourse in circumstances as obtain here would raise a strong inference of condonation with its dual requirement, forgiveness and restoration. That inference stands uncontradicted the appellant not having explained the circumstances in which he came to lead and live a normal life with the respondent, even after a series of acts of cruelty on her part.
45. In view of the decision of the Supreme Court aforementioned, it is clear that even assuming that the defendant-appellant had been guilty of acts of cruelty, the same were condoned by the plaintiff-respondent.
46. In Tapart Kumar Chatterjee v. Kamala Chatterjee reported in 1989 Vol. 1 Divorce and Matrimonial Cases 428, a Division Bench of Calcutta High Court has held:
Cruelty as we know, is a wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental or to give rise to reasonable apprehension of such a danger.
It so appears from evidence on record that she tolerated and swallowed all these ignominies without making any fuss, with a view to purchase family peace. In consideration of what has been stated above, we are in agreement with the finding of the learned Additional District Judge, that the petitioner has failed to prove his case and that he is not entitled to any relief whatsoever as claimed. The appeal, therefore, fails and the same is dismissed.
Such is the position is this case also.
47. In Kiran Sharma v. Shardha Nand Sharma reported in 1991 Vol. I Divorce and Matrimonial Cases 402, a Division Bench of Delhi High Court while allowing a Letter Patent Appeal also considered this aspect of the matter in great details and held:
During the course of earlier discussion, we have shown that it is a case in which the husband is the guilty spouse from which it follows that by seeking divorce, he is taking advantage of his own wrong. In view of the provisions of Section 23 of the Hindu Marriage Act, for this reason also, the petitioner is not entitled to any relief. He is not entitled to a decree of divorce. In this case it is the husband who has totally neglected his wife and has been callous to her. It is the petitioner's wrong which led to respondent's complaint to the Chief Minister. It is the petitioner who was trying to get rid of his wife, while seeking divorce.
48. Taking thus, into consideration all facts and circumstances of the case, I am of the view that the judgment and decree passed by the learned court below cannot be sustained.
49. In the result, this appeal is allowed and the judgment and decree passed by the learned court below is set aside and the plaintiff s application for judicial separation is dismissed.
However, in the facts and circumstances of the case, the parties are directed to bear their own costs throughout.