Madras High Court
Tamizh Selvi vs Arumugam on 10 July, 1990
Equivalent citations: I(1991)DMC296
JUDGMENT Srinivasan, J.
1. This appeal has been preferred by the wife against the decree for divorce granted by the First Additional District Judge at Pondicherry on the ground of cruelty.
2. Admittedly the marriage took place according to Hindu Sastras on 26-6-1975 and a child was born in July 1976. The respondent alleged in the petition for divorce that when the appellant was pregnant, she wanted to go to her parent s house for delivery, but he refused permission due to several domestic reasons. She left the house in May, 1976 without his consent and got herself admitted in the St. Joseph of Cluny Hospital at Pondicherry, The birth of the child was intimated to him only three days thereafter and he went to the hospital to see the child. But, the appellant refused to show the child to him. He was humiliated and distressed by the conduct of the appellant. She issued a notice in August, 1977 demanding from him maintenance at the rate of Rs. 100 per mensem. He issued a reply notice asking her to resume cohabitation within seven days from the receipt thereof. As she was picking up quarrels with his aged parents he provided a separate residence for her at Vazhaikulam. He had to stay with his parents for some time as they were sick and as there was no one to attend on them. The appellant advised him to resign his job and he refused to do so. The appellant was developing a baseless apprehension in her mind that he was preparing to marry his uncle's daughter, who was already married to another man at Kurinjipadi. The appellant was picking up quarrel with the respondent very often and she left the conjugal home at Vazhaikulam on 5-9-1977 without his consent and knowledge She issued a notice to him demanding maintenance and filed a petition under Section 125 of the Crl. P.C. for maintenance for herself and her child. The Judicial First Class Magistrate at Pondicherry granted maintenance. The respondent preferred a Revision Petition to the Principal Sessions Judge at Pondicherry, who allowed the revision in part and set aside the order of maintenance to the appellant on the ground that he offered to take her back and she agreed to resume cohabitation with him. As against that order the appellant filed a revision in the High Court in Criminal Revision No. 675 of 1979. At the time of arguments, a compromise were arrived at and in accordance with the compromise, the respondent established his conjugal home at Pudu Saram at Pondicherry in the month of October 1980 because of non-availability of a separate residence at Pondicherry and because of the festival season at Sinnerkunam. The appellant's father and her brother visited the conjugal home thrice and took her under the pretext that somebody was ill in the village. She left the conjugal home without the consent and knowledge of the respondent on 22nd January 1981 along with the child. He was very much upset and had mental agony because of the conduct of the appellant. Because of the mental agony and torture he was not able to carry on his daily avocation with mental peace She issued a notice on 3-3-1981 making several allegations and accusations against him and charged him for leading an adulterous life with a woman. The false allegations caused further mental agony and torture to the respondent. He apprehended that the intention of the appellant was only to extract money from him by coercive and intimidative methods The conduct of the appellant amounted to Cruelty in law and the appellant was guilty of treating the respondent contemptuously with cruelty On the above allegations, he filed the petition for divorce.
3. The appellant filed a counter denying the allegations contained in the petition. She stated that she was sent out of the matrimonial home when she was pregnant on the ground that she and the respondent's sister should not see each other after delivery as both were pregnant at the same time. It was the respondent who was at fault and a panchayat had to be convened in November 1976 in which he agreed to take the appellant and her child and lead a happy life, but he did not keep up his word She was obliged to file a petition for maintenance before the Magistrate as the respondent did not choose to come to the matrimonial home, but stayed away. Even after the order by the Revisional Court and the compromise in the High Court, the respondent did not keep up his promise. He did not fix any separate house as undertaken by him saying that he had no money. The father of the appellant gave Rs. 1,000 by way of cash and house-hold articles worth about Rs. 1,000 and set up a family in October, 1980. The respondent did not mend himself and he began to have illicit connection with another woman openly from 2-1-1981 after deserting the appellant. The appellant had to take shelter in her parents' house. It was only the respondent who was treating the appellant with cruelty and he had been from the beginning bent upon marrying a second wife, and with that object had filed the petition for divorce. Hence, she prayed that the petition should be dismissed.
4. The respondent examined himself as P.W. 1 and one Janarthanam as P.W. 2 who claims to have resided in Pudhu Saram in the house opposite to that of the respondent. The appellant examined herself as the only witness on her side. The respondent filed nine documents comprising of the notices and reply notices exchanged previously and the orders of the Principal Sessions Judge and of this Court in the Criminal Revision Petitions. The appellant filed three documents which were letters written by the respondent to the appellant's father in April 1980 and June 1980.
5. The First Additional District Judge of Pondicherry held that the appellant had want only made a wild allegation of adultery against the respondent and he had obviously suffered mental agony. He also held that the appellant indulged always in initiating advocate's notices and litigation, which also caused mental agony to the respondent. In that view, the First Additional District Judge held that the appellant was guilty of cruelty and allowed the petition for divorce. However, he refused to grant custody of the child to the respondent holding that the custody of the young child should be only with the appellant.
6. Aggrieved by the said decree, the wife has filed the present appeal.
7. The question which should be considered by me is whether the appellant is guilty of treating the respondent with cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act.
8. Before the Act was amended by Act 68 of 1976, cruelty was only a ground for judicial separation and not for divorce. Section 10(1)(b) of the Act as it stood before the amendment provided that a decree for judicial separation could be granted on the ground of cruelty which caused a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the other party. By virtue of the amendment introduced by Act 68 of 1976, a drastic charge is brought about. Under Section 13, cruelty has been made a ground for dissolution of marriage. The requirement that the 'cruelty' should be such to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; is no longer in existence. The section uses only the word "cruelty" simpliciter.
9. In Balbir Kaur v. Dhir Dass, AIR 1979 Pun. & Har. 162 it is held that the term 'cruelty' admits in its ambit and scope such acts which might even cause mental agony to the aggrieved party and what acts cause such an agony depends upon the facts and circumstances of each case.' It is observed that while determining the question, the Court has to take into consideration the status of the parties, customs and traditions by which they are governed as also the public opinion which prevails in the locality.
10. In Dr. Srikant Rangacharya Adya v. Smt. Anuradha, , a Division Bench of the Karnataka High Court held that failure to comply with one of the obligations of the marital life by the husband would amount to subjecting the wife to cruelty. It is observed as follows :--
". . .Although the term "cruelty" is not defined by the Act and to define the said expression is to limit its application which is not advisable inasmuch as it is not at all possible to comprehend the human conduct and behaviour for all time to come; but it may safely by stated that any conduct of the husband which causes disgrace to the wife or subjects her to a course of annoyance and indignity amounts to cruelty. False accusation would also amount to cruelty as the same will lead to mental torture. . ."
11. In Sulekha v. Kamala Kanta, a Division Bench of the Calcutta High Court held that the position of law was the same even after the Amendment Act of 1976 came into force. According to the Division Bench, even after the amendment, 'cruelty' simpliciter would not suffice and the petitioner will have to prove that the cruelty is of a nature as to give rise to a reasonable apprehension in his or her mind that it would be harmful and injurious for him or her to live with the other party.
12. In Smt. Shakuntala Kumari v. Om Prakash Ghai, AIR 1981 Delhi 53 it is held that wilful denial of sexual relationship by a spouse when the other spouse is anxious for it, would amount to mental cruelty, especially when the parties are young and newly married. On the facts, it is found that the wife refused to continue her treatment for frigidity and refused to discharge her matrimonial obligations and also made false complaints to the husband's superior, which would have the effect of bringing him down in the eyes of the superior. It is therefore held that refusal of wife to fulfil her matrimonial obligations coupled with her making of false complaints amounted to treating the husband with cruelty.
13. In Suresh Kumar Gulati v. Smt. Suman Gulati, AIR 1983 All. 225 Deoki Nandan, J. held that cruelty in order to be a ground for divorce must be some such conduct of the respondent as gives the petitioner a reasonable cause of apprehension of injury to body, mind or health in the future, It was observed that every mental tension cannot amount to infliction of mental cruelty and it must be shown that the injury inflicted through the mind of the petitioner had affected his health, or that the future repetition of that injury is most likely to affect his health.
14. A Full Bench of the Bombay High Court has in Dr. Keshaorao Krishnaji Londhe v. Mrs. Nisha Londhe held that the cruelty contemplated under Section 13(1)(ia) of, the Act after amendment neither attracts the old English doctrine of danger nor the statutory limits embodied in old Section 10(1)(b). It was held that he cruelty contemplated was a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent or living together of the spouses had become incompatible. The Full Bench had made a detailed reference to the 59th Report of the Law Commission and the Statement of Objects and Reasons of the Amendment Act 68 of 1976, taking the view that the Parliament intended to amend the law with a view to liberalise the same in accordance with the modern trend and not to restore the old doctrine of danger which had been discarded even in England. The relevant passage in the judgment of the Full Bench reads thus :--
" . . .What is cruelty simpliciter ? It is not possible to comprehend the human conduct and behaviour for all time to come and to judge it in isolation. Apriori definition of cruelty is thus not possible and that explains the general legislative policy with sole exception of the Dissolution of the Muslim Marriage Act--to avoid such definition and leave it to the Courts to interpret, analyse and define what would constitute cruelty in a given case depending upon many factors such as social status, background, customs, traditions, caste and community, upbringing public opinion prevailing in the locality, etc. It is in this background that the suggestion contained in para 2.12 of the 59th Report was turned down and the limiting words, namely, "such cruelty that the petitioner cannot reasonably be expected to live with the respondent" were not incorporated on the view that "the court would even in the absence of such words broadly adopt the same approach". After referring to the fact that the divorce on the ground of cruelty is "usually justified on the ground of principle of protection" the final draft as mentioned in para 2.17 was suggested and which, as referred to above, was accepted by the Parliament in toto. The board test, therefore, that will have to be applied in interpreting Section 13(1)(ia) has to be whether the cruelty is of such type that the petitioner cannot reasonably be expected to live with the respondent or living together of the spouses had become incompatible."
15. In my opinion, the Full Bench of the Bombay High Court has prescribed the correct test, but while applying the same, the dictum of Punjab & Haryana High Court in Balbir Kaur's case (supra) has to be kept in mind by the Court. In other words, while the Court has to decide whether the cruelty is of such type that the petitioner cannot reasonably be expected to live with the respondent, or that living together with the spouses has become incompatible, the Court has to take into consideration before deciding the question the status of the parties, customes and traditions by which they are governed as also the public opinion which prevails in the locality.
16. A similar view has been taken by a Division Bench of the Kerala High Court in K. Narayanan v. K. Sreedevi . It is held in that case that the concept of cruelty is not a static one and so a definition applicable and suitable for all times cannot be given. According to the Bench, it is a concept which would naturally change depending on social and economic conditions, status of parties and multitude of other consideration, and whatever liberal approach that is to be adopted by the Court, it will find cruelty only on some legal evidence.
17. In Kachman Utamchand Kirpalani v. Meena alias Mota, , it is held that the burden of proving desertion--the 'factum' as well as the 'animus deserendi--is on the petitioner and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. It is observed that even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner husband has still to satisfy the Court that the desertion was without just cause. The rule will also apply to cases in which divorce is sought on the ground of cruelty. It is for the petitioner in a petition for divorce to prove beyond reasonable doubt to the satisfaction of the Court that the other party is guilty of cruelty, Unless and until such burden is discharged, a decree for divorce cannot be granted in favour of petitioner.
18. Bearing the above principles in mind, it has to be decided whether on the evidence let in by the respondent in this case, it is possible for the Court to hold that he has proved beyond reasonable doubt that the appellant treated him with cruelty which would warrant the grant of decree for divorce. From the admitted facts it is seen that the respondent was responsible for the conduct of the appellant even assuming that she had behaved as alleged by the respondent. It is admitted in the petition for divorce that the respondent refused permission to the appellant to leave the conjugal home for the purpose of delivery of the first child due to several domestic reasons. Whatever may be the reasons, and however valid they may be, a Hindu woman would naturally desire to be with her parents at the time of her first delivery. It is highly cruel on the part of the husband to refuse permission to his wife to be with her parents at that time. It has been held in P. Indira Devi v. Kumaran, that a pregnant wife leaving for her father's house for the purpose of delivery need not have the consent of the husband therefor and the act of the wife would not amount to desertion in law.
19. A perusal of the deposition of the respondent shows that he is not a truthful witness. His version that the appellant left him without his knowledge or consent for her parents' house is not acceptable. On the other hand, the case of the appellant is that it was the respondent who sent her to her parents' house on the footing that she should not see his sister who was also pregnant at that time. There is such a belief in this part of the country that a woman and her sister-in-law (husband's sister) should not see each other after delivery if they were pregnant at the same time without performing certain expiation ceremonies. It is not necessary for me to consider whether the belief and custom based on it are superstitious and whether they should be followed in these modern days. The fact remains that it is being followed in certain families. Hence, the version given by the appellant is more probable and acceptable. The respondent has not chosen to disclose either in the petition for divorce or in his deposition the so called "several domestic reasons" for which he refused permission to the appellant to leave the conjugal home for the purpose of delivering a child. In fact, he admits in his deposition that when the appellant's pregnancy was four months old, he sent her to her parents' house. If that was so, there was no reason as to why he could not send her to her parents' house for delivery. The respondent is also guilty of giving contradictory versions in his evidence. In one place in the deposition he states that the appellant lived in the house at Saram, Pondicherry for about three months. In another place he says that she lived only for about ten days at the said place. He states in his evidence that his father-in-law and brother-in-law used to demand money from him and he used to pay the same. But, Ex. R2 dated 23-4-1980 which-is admittedly a letter written by the respondent to his father-in-law proves the contrary. He has stated therein that he required a sum of Rs. 1500, but he did not ask for the same as he was not accustomed to borrow money. He requested his father-in-law to help him in order to set up a new house for his family. The respondent admits that he used to stay for two days in his parents' house and one day in his conjugal home. That was at a time when the child was just one year and two months old. Naturally, the appellant was not inclined to live in a house where the husband did not provide her company continuously. The respondent also admits that the appellant was a good, dutiful and loyal wife to him. It is also admitted by him that he had not cared to take his child and cares him. He admits that he cannot say who are all the persons residing in other portions of his house. That itself shows that he has not been living in the house regularly. While in the petition for divorce it is categorically stated that the appellant had left his house without his consent and knowledge on 22nd January 1981, in the evidence PW 2 stated that the appellant left the house on 2-1-1981. The deposition of PW 2, who is said to be a person living in the opposite house at Saram, is wholly unacceptable. A perusal of the deposition shows that he is not speaking the truth and that he does not know the facts of the case. He does not know even the door number of the respondent's house. It is highly doubtful whether he was living in the opposite house at Saram. Thus, the evidence of both P.W. 1 and P.W. 2 is not worthy of acceptance.
20. I shall now refer to the chronology of events as is evident from the records of the case. The marriage took place in June 1975. In May 1976, the appellant went for delivery. In July 1976, the child was born. In November 1976, there was a panchayat. The respondent agreed to take his wife and child on 24-11-1976. But, he did not do so. The fact of panchayat in November 1976 is admitted by the respondent in his deposition. It is also admitted that he executed an agreement that he would take his wife and live with her and that even after the agreement there was no reunion. The appellant issued a notice, marked as Ex. P1, on 10-8-1977 through her lawyer setting out the factum of Panchayat and the failure of the respondent to take her. She claimed a sum of Rs. 200 by way of maintenance for her and Rs. 100 for the child. Ex. P2 is the reply sent through the respondent's lawyer on 23-8-1977. There was no denial of the Panchayat held in November 1976 and his having agreed to take the wife and child. But, it was alleged in Ex. P2 that the respondent had not condoned the appellant's conduct of desertion of the conjugal home. The following sentence in paragraph 4 of the notice is quite relevant : "If your client does not return to the conjugal home and if the statutory period gets lapsed, my client will not hesitate to take necessary legal proceedings to dissolve the marriage." The respondent had even at that time expressed his intention to get the marriage dissolved. The conduct of the respondent in issuing a threat to his wife as stated above after having agreed before the Panchayat to take his wife and child and live with them shows that the fault is only on his part and not on the part of his wife. It was alleged in the said notice that the wife had deserted the conjugal home without sufficient reason and she was not entitled to any maintenance. The respondent invited the appellant to join him at his uncle's house and resume cohabitation. Admittedly, the wife joined the husband thereafter and they were living in Vazhaikulam. The house fixed by the husband at Vazhaikulam consisted only of a small room without any amenities. The surroundings were not suitable for a family woman to reside. Yet, the husband did not choose to live with her continuously, but was admittedly staying with his parents for two days and only for one day with the wife. Naturally, the wife had to leave the house and issue a notice on 6-9-1977 through her advocate setting out all the above facts. It was alleged that on 2-9-1977 at about 7 P.M. the husband, after teasing the wife and quarrelling with her, demanded her signing a paper for divorce. The respondent did not send any reply to the notice dated 6-9-1977 which is marked as Ex. P3. There was no denial of the allegation that he demanded her signing a paper for divorce. Neither in his petition nor in his deposition he has stated that a reply was sent to the notice Ex. P3.
21. Thereafter, the appellant filed a petition under Section 325 Crl. P.C. for maintenance for herself and her child. The Judicial First Class Magistrate, Pondicherry, granted Rs. 100 per mensem for her and Rs. 40 per mensem for the child. The respondent filed a revision petition in the Court of the Principal Sessions Judge, Pondicherry. The Principal Sessions Judge referred to the statement found in the counter filed by the husband that he was ready to take the wife back and to live with her and observed that it was for the wife to take a clear stand as to whether she accepted the offer of the husband or not. He also referred to the statement of the wife in the cross examination that she was prepared to join her husband. Hence, the Principal Sessions Judge took the view that the husband and wife being prepared to live together, there was no occasion for granting maintenance to the wife. Therefore, he set aside the order granting maintenance to the wife, but confirmed the order in so far as the child was concerned.
22. Though the respondent had made an offer to take the wife back and live with her, as stated by the Principal Sessions Judge, he did not make any attempt to do so. The order of the Principal Sessions Judge was made on 18-10-1978. After waiting for three months, the appellant issued a notice through her lawyer on 28-1-1979 calling upon the respondent to take her back within one week from the receipt of the latter. It was made clear that if he failed to comply with the request, steps would be taken to file an application for restitution of conjugal rights. That notice is marked as Ex. P 7. The respondent claims to have sent a reply under Ex. P8 dated 14-2-1979 through his advocate. But, there is nothing on record to show whether such a reply was actually sent or it reached the appellant's advocate. Even assuming that such a reply was sent admittedly the respondent did not take any steps to fix up a house to live along with the appellant.
23. The appellant was obliged to move this Court in Criminal Revision No. 675 of 1979. A compromise was entered and a joint memo, was filed by the parties. As per the joint memo, the respondent undertook to fix a separate house for leading a happy family life at Pondicherry within a month from that date. The respondent also undertook to take the appellant within one month to Pondicherry. The compromise memo, was recorded and an order was passed by this Court on 18-3-1980. In spite of the compromise, the respondent did not fix any house for the joint living till October 1980. I had already referred to Ex. R 21 in which the respondent has expressed his financial constraint and requested his father-in-law to help him with money. It is the case of the appellant that her father gave Rs. 1,000 in cash and by way of house hold articles another Rs. 1,000 and even thereafter, the respondent did not fix a house to live separately. Admittedly, in October 1980, the parties started to live together.
24. It is alleged by the respondent in the petition that on 22-1-1981 the appellant left the house without his knowledge and consent and thereby he was upset and had mental agony because of her conduct. I have already pointed out that in the evidence a different version is given with regard to the date on which the appellant left the house. The respondent did not choose to write any letter or issue any notice to the appellant that she had left the house without his knowledge or consent. On the other hand, it was the appellant who issued a notice on 3-3-1981 to the respondent through her lawyer setting out all the facts and alleging that the respondent had started living with a woman from 2nd January 1981 elsewhere. It is also alleged that the respondent did not turn up to the house. According to the appellant, she waited for over ten days and as the respondent did not turn up, she had to leave for her parents' house. The notice dated 3-3-1981 is marked as Ex. P6. The respondent did not send any reply thereto, but filed the petition for divorce, out of which this appeal arises, in August, 1981, though the petition was signed by the respondent on 14-4-1981 itself. The above facts disclose that the appellant is not guilty of any act of cruelty. In the petition for divorce, it has been alleged that the fact of the appellant leaving the conjugal home without his knowledge and consent again and again caused mental agony to the respondent. It is also alleged that the appellant's allegation that the respondent is having illicit intimacy with one Marie is a false one and that has also caused him mental agony. A reference is made to the circumstances that a copy of Ex. P-6 is marked to the educational authorities. In the petition it is alleged that it has been done so, in order to harass and malign the respondent herein. The lower Court has taken the view that the allegation of illicit intimacy of the respondent with another woman has not been proved by the appellant as she has not examined anybody to prove the same. The learned Judge has held that the appellant has want only made a wild allegation of adultery in Ex. P6 and sent a copy to the Educational authorities in order to harass and malign the respondent, who has suffered mental agony and consequently, mental cruelty. The lower Court has placed reliance on the circumstances that a copy of Ex. P6 was marked to the educational authorities. There is nothing on record to show that the copy of Ex. P6 reached the educational authorities or that they took any action on the same. The respondent has not even whispered in his chief-examination about any action by the officials consequent to Ex P6. On the other hand, in the cross-examination he admits that his higher officials had not sent any memo to him that he was not attending to his work properly. It is thus clear that the version put forward by the respondent that he was mentally disturbed by Ex. P6 and other notices issued by the appellant and could not attend to his work properly is totally false. His categorical declaration in the cross-examination that he is not prepared to take his wife even if she is willing to live with him in his parents' house shows that his application for divorce is with ulterior mala fide motives.
25. Though there is not sufficient evidence before the Court to hold that the respondent is living in adultery of having illicit intimacy with another woman, it cannot be said that the allegation is a wild one or that it is made for the first time in Ex. P6 dated 3-3-1981. Even in the notice dated 7-9-1977 marked as Ex. P3, it is stated specifically that the respondent wanted the appellant to sign a paper for divorce. In the very same notice it was also stated that the respondents' brother-in-law Anbu met the appellant and her father and told them that the respondent wanted to marry another girl and the appellant should give permission therefor so that both can reside in the same house. Significantly, the respondent did not choose to send any reply to the said notice. I had referred to this aspect of the matter already. The conduct of the respondent as disclosed from the above said facts in not taking back the appellant even after the order of the Principal Sessions Judge in October 1978 and after the compromise before this Court in March 1980 shows that the respondent was very reluctant to live with her. His conduct creates a suspicion, though it may not amount to proof of his living with another woman in adultery or having illicit intimacy. But, the suspicious conduct on the part of the respondent is sufficient to reject his prayer for divorce on the ground of cruelty. The Court below is in error in holding that the respondent had suffered mental cruelty on account of the conduct of the appellant and the allegation made by her in Ex. P6.
26. In a Hindu society, if an allegation of unchastity is made against a woman falsely, it would certainly amount to cruelty on the part of the husband. But the converse will not be correct. The Court can certainly take judicial notice of the fact that even though bigamy is made an offence under the Penal Code and bigamy is prevented by legislation from 1949 onwards, there are numerous instances where men are living with more than one woman in extra-marital relationship. If an allegation is made against a man that he is living with another woman in illicit intimacy, that will not by itself amount to cruelty. It is here the principle set out by the Punjab & Haryana High Court in Balbir Kaur's case (supra) becomes relevant. If the customs and traditions by which the parties are governed as also the public opinion in the locality are taken into account, it cannot be said that an allegation that a man is living in illicit intimacy with another woman, even if such allegation is false, will amount to cruelty. Such an allegation cannot be placed on the same pedestal as a false allegation of unchastity made against a Hindu woman.
27. On the facts-and circumstances of the case, I am of the view that the respondent has failed to prove that the appellant treated him with cruelty so as to warrant the grant of a decree for divorce. The Civil Miscellaneous Appeal has to be and is hereby allowed and the decree for divorce granted by the First Additional District Judge, Pondicherry is set aside. The order for payment of Rs. 100 per month towards maintenance of the child will remain, as there is no appeal against the same. The respondent is directed to pay the costs incurred by the appellant in the Court below as well as in this Court. The respondent is also directed to pay a sum of Rs. 400 per mensem towards maintenance to the appellant.