Indian Kanoon - Search engine for Indian Law

The respondent's defence on other hand was that she did not leave the matrimonial home out of volition but was forced to take that step because of the harassment and ill-treatment meted out to her by the petitioner and his parents and sisters. In other words, it was her case that the boot was on the other foot and that it was a case of constructive desertion on the part of the husband himself.

Pending the hearing of the petition, she made an application for interim alimony and interim alimony had been awarded to her by the Court at the rate of Rs. 850/- per month for herself as well as for the child from the marriage.

After the evidence was led and the arguments were heard, the learned Judge was satisfied that the respondent-wife had not made good her case of such cruelty as could give rise to the inference of constructive desertion on the part of the husband. At the same time, however, the learned Judge was of the view that the petitioner-husband had not placed all the evidence before the Court to prove his plea of inability to pay maintenance to the respondent-wife at any rate higher than Rs. 850/- per month as already ordered by the Court. Taking an over-all view of the evidence, reading between the lines as it were, the learned Judge arrived at the conclusion that the petitioner-husband must be getting an income of Rs. 5000/- per month and on that basis, directed payment of alimony to the respondent-wife under section 25 of the Hindu Marriage Act, 1955 at the rate of Rs. 2000/- per month, Rs. 1500/- for the wife and Rs. 500/- for the child. The petitioner's petition for divorce was, therefore, decreed by him but at the same time he ordered the petitioner to pay maintenance to the respondent aggregating to Rs. 2000/- per month for herself and for the child.

9. On 29th June, 1984, the petitioner's Advocate gave a Notice to the respondent's Advocate stating that although the plea of cruelty was raised by the respondent in her Written Statement, no particulars of the same were given in the Written Statement. It was stated that the defence of constructive desertion raised by the respondent in the Written Statement was devoid of all particulars as required by law. The respondent's learned Advocate was, therefore, informed by the petitioner's Advocate that on the next date of hearing of the petition the petitioner's Advocate would be applying for striking out of the issue raised by the Court on that plea. It was after the receipt of this notice that on 6th July, 1984 the respondent took out a Chamber Summons for amendment to the Written Statement for giving particulars relating to the various acts of cruelty committed by the petitioner-husband upon the respondent-wife during the respondent's stay with the petitioner's family. The particulars are mentioned in Schedule-I annexed to the petition. They are 25 in number. The Chamber Summons was opposed by the petitioner but after hearing the parties the learned trial Judge allowed the Chamber Summons with respect of particulars Nos. 14, 17, 19, 20, 22, 23, 24 & 25.

16. Now, on this point I must state that this question cannot be considered in the air. There are sections in the community where the wives do not consider that every beating given to them by their husband are acts of cruelty within the contemplation of the Hindu Marriage Act. Nay, we are told by men of literature that category of women folk is not unknown where the women consider the beating given to them by their husbands to be the indices of manliness of their husband. But you cannot apply this criterion to every class of women. As the education spreads and as you go higher and higher up in the strata of society, economically and educationally, the resentment of the woman folk against these acts of beating becomes more and more noticeable. A maid servant in the house of an educated family may not resent occasional beating given to her by her husband and on that account she might not rush to the Court for getting divorce; but if a lady of the house, belonging to the higher strata of the Society having had some education and affluent one is assaulted by her husband, she would keenly resent to them and would treat it as an act of cruelty, even if the beating by the husband had some justification. One may, therefore, consider her state of mind if she feels that there was no justification for such assault. This is the reason why I have observed above that the examination of this concept of cruelty cannot be considered in the air. It has to be considered with reference to the status of the parties to the litigation, their station in life and the position that they occupy in the Society. Here in the instant case, both the parties claim to have come from a very great Khandan. The respondent claims that she come from a Khandani family. The petitioner has come out with a rejoinder saying that he also belongs to a khandan. If that is so, I can see every justification for believing that the respondent would be feeling deeply aggrieved and humiliated by the beating administered to her by her husband in the presence of her mother-in-law and sisters-in-law. In addition to that we find the grave mental cruelty meted out to her at the time of the incident of Laxmi Pooja. In any event so far as the beating part is concerned, there is every reason to believe that she must have been feeling life thoroughly unbearable in the matrimonial home if such acts of cruelty were meted out to her days in and days out. She, therefore, decided to leave the matrimonial home and not to return to the same unless she got an assurance of such incident not being repeated. The Court will not hesitate to hold that in such case she was in reality driven out of the house. This is not a case of desertion on her part. It is a clear case of constructive desertion by the husband himself. If this is so, the petitioner's plea of desertion by the respondent must fail.