Rajasthan High Court - Jaipur
Smt. Meera vs Vijay Shankar Talchidia on 21 September, 1993
Equivalent citations: AIR1994RAJ33, I(1994)DMC215, 1994(1)WLC147
JUDGMENT R.C. Agrawal, C.J.
1. This is a wife's appeal under Section 28 of the Hindu Marriage Act against the judgment and decree of the District Judge, Sawai Madhopur dated 18th November, 1991 decreeing the suit of the husband for divorce and for grant of permanent alimony at the rate of Rs. 200/- p.m. till the lifetime of the wife or till she did not marry.
2. The respondent-Vijay Shanker Talchidia was married with the appellant Meera on 25th November, 1976. Both lived together at Sawai Madhopur, but no child was born to them.
3. The respondent alleged cruelty against the appellant for seeking divorce under Section 13 of the Hindu Marriage Act.
4. Section 13(1) of the Hindu Marriage Act provides the grounds of divorce. It reads as under:--
"Section 13. 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 party-
(i) has, after the solemnization of the marriage, had voluntarily sexual intercourse with any person other than his or her spouse; or (ia) has after the solemnization, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or..............."
5. The respondent asserted two acts of cruelty. One of them was that the respondent took 3-4 crossin tablets for committing suicide and the other was that she attempted to burn herself by collecting fire wood in the premises of the husband. The husband also alleged adultery on her part. He alleged that in 1978, he saw his wife sitting with a young boy, who was indulging in undesirable and unjustified activities.
6. The petition was contested by the appellant denying all the allegations. She asserted that these grounds had been manufactured by the respondent for getting a decree of divorce.
7. On the pleadings of the parties, six issues were framed by the court below. The issues which are relevant for the purposes of this appeal are issues Nos. 1, 2, 3 and 4.
Issue No. 4 was on adultery.
Under clause (i) of Sub-section (1) of Section 13 of the Hindu Marriage Act, Adultery has been provided as a ground of divorce.
8. The evidence led by the respondent consisted of his statement that he saw his wife sitting with the young boy who was indulging in undesirable and unjustified activities. The court below held that the young boy was domestic servant. He had no illicit relations with the appellant. From the evidence of the respondent, the court below concluded that it did not establish that the appellant had any sexual relationship with the young boy. The act alleged was not of indulgence in sex.
9. This ground was rightly disbelieved by the court below. Nothing was shown to me by the learned counsel for the respondent to take a different view on the findings recorded by the court below.
10. Issues Nos. 1 and 2 are connected with each other and can be disposed of together.
11. The appellant was said to have taken 3-4 crossin tablets with the intention to commit suicide or involving the respondent in some criminal case. The appellant denied that she took crossin for the purpose suggested by the respondent.
12. After having read the statements of the witnesses, I am unable to hold that taking of 3-4 crossin tablets by the appellant amounted to cruelty and that the respondent was entitled to a decree of divorce on that basis.
13. Cruelty is a ground for divorce under Section 13(1)(ia) of the Hindu Marriage Act. Whether particular conduct amounted to cruelty would be determined on facts and circumstances in each case. It has not been defined in the Act as it was not possible to do so. Section 13(1)(ia) has undergone a change by 1976 amendment made by the Parliament.
14. Before the amendment of 1976, the Act contained a different formulation of cruelty. At that time, the petitioner was required to show that the respondent had treated him or her with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the respondent. The change in the formulation of cruelty under the Hindu Marriage Act brings it at par with the Special Marriage Act. It has also simplified it. Cruelty in such cases has to be of the type which should satisfy the conscience of the Court to believe that the relations between the parties had deteriorated to such an extent due to the conduct of one of the spouses that it has become impossible for them to live together without mental agony, torture or distress.
15. Cruelty as a ground of divorce under Section 13(1)(ia) is a conduct of such type that the petitioner could not reasonably be expected to live with the respondent. Now, the act or omission or conduct which constitutes cruelty need not cause any sort of apprehension in the mind of the petitioner.
16. No rigid meaning can be assigned to cruelty in order to come under Section 13. What may amount to cruelty in one case may not amount to cruelty in another case. In order to consider whether a particular act complained against amounted to cruelty or not, the Court has to take into account the social status, the environment, the education, the mental and physical conditions and the susceptibilities of the innocent spouse as also the customs and manners of the parties.
17. The court dealing with a petition for divorce under Section 13 is expected to bear in mind that the problem before it is that of human beings and that all psychological changes in a man's conduct has to be borne in mind before granting or rejecting the petition. It is not that every insignificant or trifling conduct could constitute cruelty of one on the other.
18. In the instant case, from the facts and evidence, firstly, the act alleged by the respondent about taking of crossin tablets in excess by the appellant was not established and secondly, from that act alone it was not possible to conclude that it was intended to cause mental torture to the respondent by the appellant. It could be an act of mistake.
19. The second submission with regard to collection of fire wood by the appellant for burning herself was also not established. This incident, according to the respondent, occurred in 1977. After such a long time, it is unbelievable to attach any credence to the witnesses produced by the respondent. One of the witnesses produced by the respondent was Babu Lal, who said that when he saw smoke coming out of the house of the respondent, he and Babu rushed to his house where they saw that the appellant had made all the preparations for burning herself. This burning incident reoccurred in 1980 when one of the feet was put by her deliberately to fire.
20. After having read the statements of the witnesses, I am unable to hold that the acts alleged to have been committed by the appellant have been established. Neither did the respondent lodge any First Information Report nor did he complain against it to any relations of his. What he did was to catch-hold two witnesses to prove the same. The statements of the witnesses were wholly unreliable. They appear to have been caught for deposing in favour of the respondent. There are inherent contradictions in their statements.
21. Moreover, these acts were committed in 1977 and 1980, after which, the appellant lived with the respondent, therefore, they could be deemed to have been condoned and could not be the basis of the petition.
22. In Dastane v. Dastane, AIR 1975 SC 1534, the Supreme Court held:--
"Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things: forgiveness and restoration. The evidence of condonation in this case, is as strong as satisfactory as the evidence of cruelty."
23. Another ground taken by the respondent for divorce was that of desertion.
24. The appellant stated that in 1981, she was left by the respondent to her father's house and that since then, she was living there.
24A. From the evidence on record, the desertion from the side of the wife had not been established. The court below did not apply its mind to the relevant aspects of this ground and erroneously granted the decree of divorce putting the blame on the appellant for desertion. It is a case of wife being driven out and not of desertion.
25. Since I have dismissed the petition for divorce, that part of the permanent alimony which was awarded by the court below would automatically result in being setting aside.
26. In the result, the appeal is allowed and the judgment and decree of the court below dated 18th November, 1991 is set aside.