Poor labor who can’t provide separate home looses divorce 12 years after separation !! Marriage is a gamble !!

A poor manual labor’s wife seeks separate acco. Case goes to CAW cell, here there. Husband is forced to arrange separate acco for wife. He does initially but later on abandons acco (probably couldn’t afford it). (however in his depositions he denied having provided separate acco) Wife and husband separate. Husband tries to get divorce. He looses divorce in lower court and also in HC !! Even though parties are separated for 12 years, Delhi HC refuses divorce !! 😦

#Divorce #Cruelty #Desertion #Irretrievable_Breakdown #Men_and_Marriage #Is_Marriage_a_gamble

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 26.07.2016

Decided on: 21.09.2016

MAT.APP. 45/2011

MINI APPA KANDA SWAMI @ MANI              ….. Appellant
Through: Ms. Shailja Balasaria, Advocate.

versus

M INDRA                                               …. Respondent
Through: None.

CORAM:
HON’BLE MR. JUSTICE S. RAVINDRA BHAT
HON’BLE MS. JUSTICE DEEPA SHARMA
MS. JUSTICE DEEPA SHARMA

(JUDGMENT)

1. 1. This appeal has been preferred by the appellant husband against the order of the Family Court, Rohini, Delhi, dated 12.08.2010 whereby his petition for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act (hereafter “the Act”) was dismissed.
2. Briefly, the facts are that the parties got married according to Hindu rites and customs at JJ Colony, Delhi on 06.09.2003 and through the wedlock one male child was born on 01.07.2004.
3. The petition for divorce was filed by the appellant on the ground of cruelty, alleging that the respondent wife was pressurizing him to setup a separate home as she did not want to live in a joint family. The appellant worked as a labourer and it is his contention that owing to limited financial means it was not possible for him to set up a separate independent household. It is further contended that despite several attempts to explain the difficulty of setting up a separate household, the respondent refused to cooperate and kept pressurizing the appellant. It is argued that the respondent became overbearing and abusive and also started misbehaving, not only with the appellant but also with his family members. The respondent would get aggressive and on several occasions had even beaten him. She also refused to do the household chores and threatened to implicate him and his family members in false criminal cases. Thereafter, on 21.11.2003, her parents visited her and instead of advising her to mend her ways, supported her. The respondent continued her atrocities against the appellant and his family and on 21.01.2004, left the matrimonial home without giving any reasons. It is argued by the appellant that he and his family members made several efforts for reconciliation and even went to the respondent’s parental home on 10.02.2004 and 04.03.2004 to bring her back so that she could rejoin the company of the appellant. However, all such attempts failed. In fact, it is alleged, that instead of sorting the differences, the respondent and her family threatened to implicate the appellant as well as his family members in dowry demand cases. The appellant received a notice from CAW Cell (Crime Against Women Cell) on 30.03.2005. A false complaint with Mahila Ayog (Delhi Commission of Women) was also filed by the wife. The appellant submits that he returned all the dowry articles to the respondent on 25.04.2005. It is submitted that he did not condone the wife’s cruelty in any manner and that their marriage reached a point of no return with there being no likelihood of a patch up or sorting of differences. Under such circumstances there could be no re-union of the parties.
4. The respondent, who appeared in person in the proceedings, had filed her written statement which controverted all the appellant’s contentions and had urged that it was he who had treated her with cruelty. She contends that the appellant had raised a demand of ` 1 lakh as well as a motor cycle and when she could not make good of these demands, she was turned out of the matrimonial home; she made efforts for reconciliation, but to no avail. It is also contended that she was sent back to her parental home when she was in family-way and all the delivery expenses were borne by her parents.
5. In the replication, the appellant had alleged that it was he who had borne the delivery as well as post-delivery expenses and denied any allegation that he had demanded any money or a motor cycle or even that he had treated her with cruelty.
6.  The Family Court heard the arguments and framed three issues:- “a. Whether after the solemnization of marriage, the respondent has treated ‘the petitioner with cruelty’? OPP b. Whether the respondent has deserted the petitioner , for a continuous period of not less than 2 years immediately before presentation of this petition? OPP c. Whether the petitioner is entitled for a decree of divorce on the ground as prayed for? OPP
7. Parties led their evidence. While the appellant had examined himself and his mother and one neighbour, the respondent had examined herself and her father. After considering all the evidence on record, the Family Court found that the husband had failed to discharge the burden placed upon him and had failed to prove that the respondent had committed cruelty of such nature which warranted a decree of divorce. It was also observed that the husband had failed to prove that his wife had deserted him for a continuous period of two years and dismissed the petition.
8. The impugned order is challenged by the appellant before this Court on the grounds that the learned Judge has failed to take note of the unrebutted statements of his witnesses and that there was no reason to disbelieve their testimonies. Learned counsel for the respondent, Ms. Shailja Balasaria submits that on a reading of the impugned order, there appears to be an inconsistency in the observations made by the learned trial Judge in para 22. Counsel urges that the judgment is based solely on presumptions and suffers from infirmity and illegality and is liable to be set aside.
9. It is further contended that the appellant is possessed of limited financial means and in the circumstances could not have afforded a separate independent household. The respondents demanded a separate residence and committed acts of misbehavior which resulted in cruelty; by passing the impugned order, the Family Court has erred in holding that the demand of the respondent for a separate home was justified. It is further argued that the Family Court wrongly relied upon a settlement reached between the parties before the CAW Cell although no such settlement was proved on record by the respondent.
10. The question for consideration is whether the conduct of the respondent/wife in the circumstance of the case, amounted to cruelty, to entitle the husband to divorce. Cruelty could be physical or mental or both. While it is easy to discern physical cruelty, mental cruelty has to be assessed from the overall behavior of spouses as well as other incidental factors. There is no doubt that in a matrimonial setup, a couple, which decides to live together, invariably has different attitudes and opinions, likes and dislikes, and more often than not spouses behave differently when faced with the same situations. While disputes and arguments are normal in a marriage, in order to constitute cruelty, the conduct of the spouse should be something more serious than the ordinary “wear and tear” of a marital life.
11. While considering whether a particular conduct constitutes cruelty or not, the social status of parties, cultural background, physical and mental conditions, customs and traditions etc. have to be considered. Mental cruelty can be assessed from the continuous unprovoked conduct of a spouse which causes embarrassment, humiliation, and anguish so as to render the other spouse’s life miserable and unendurable. This conduct should be of such gravity that the wronged party cannot be reasonably asked to put up with such conduct and continue to live with the other party.
12. The Supreme Court in the case of A. Jayachandra v. Aneel Kaur reported in (2005) 2 SCC 22, has observed as under:- “It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of such type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of …….”
13. It is in the backdrop, of the behavior of parties, that the court has to discern if the conduct complained is cruelty. There is no dispute as to the fact that the appellant was working as a labourer. He was living in a house built on a plot measuring 25 sq. yards, consisting of two rooms, along with his parents, three brothers and three sisters. While the appellant in his evidence deposed he had a room on the ground floor and one room on the first floor, his mother in her deposition claimed that there were two rooms on the ground floor and one room on the first floor. Even if the latter account were taken to be true, it leads to a scenario where, three rooms accommodate eight adults. With the respondent joining her matrimonial home and after the birth of their child, the number of members living in that house further increased. It was in the background of these facts that the learned trial Judge held:– “The petitioner has claimed that the respondent wanted to stay in a separate accommodation. She definitely requires/required one bedroom for herself and the petitioner. Such a demand from the newlywed cannot be considered as unwarranted or undesirable. If the respondent at all wanted to stay in a separate accommodation that could be only because she did not or could not have the required privacy in the matrimonial home in such a large family. I am, therefore, of the considered view that her expectation/demand was not unreasonable.”
14. Privacy is a fundamental human right. Oxford dictionary defines privacy as “a state in which one is not observed or disturbed by the other people.” So when a woman enters into matrimony, it is the duty of the family members of her matrimonial home to provide her with some privacy. There is no evidential backing by the appellant or his family members showing that they had provided requisite privacy to the respondent. The Family Court was therefore correct in holding that such demand was not unreasonable and as such did not constitute cruelty. Besides this allegation, the appellant has not brought on record any proof to substantiate the allegation that the behavior of the respondent caused mental cruelty. The allegation that she was abusing the appellant and his family members are vague and there are no specific instances cited.
15. The Family Court has further noticed on the basis of evidences on record that the petitioner had taken a rented accommodation and stayed there with the respondent, but later on abandoned her. The Family Court relying on the evidences on record held:- “The record, further, reveals that the respondent had lodged a complaint with CAW Cell and there, the parties arrived at a compromise. The Respondent has claimed that as per the settlement, it was agreed that the parties shall stay in a separate independent accommodation. The Petitioner has, however, stated that no such settlement was arrived at. The Petitioner has taken the stand contradictory to his own testimony in the court. He has testified in his cross- examination that all the dowry articles of the Respondent as per the list Ex. PW1/R1 were returned to the Respondent. He denied the suggestion that any rented accommodation was taken by them in E-Block Shakurpur. He, also, denied that rent of the said accommodation was Rs. 1200/- per month or that father of the Respondent was/has been paying the rent. He, however, admitted voluntarily that all the dowry articles of the Respondent are lying in that rented accommodation. He, further, denied the suggestion that the articles are not lying in the house of real Bua (sister of father of the Respondent). If the Petitioner and the respondent had not taken any rented accommodation in pursuance of the settlement arrived at in CAW Cell, the Petitioner could not have known that the dowry articles are lying in that rented accommodation. The Respondent has, therefore, rightly claimed and testified in the court that the Petitioner stayed with her in a separate rented accommodation for 2-3 days in the year 2005 i.e. after the settlement arrived at in CAW Cell. The dowry articles were returned to the Respondent on 25.04.2005 and thereafter, the parties stayed in a rented accommodation for 2-3 days.”
16. The evidence clearly disproves the appellant’s contention that the respondent left her matrimonial home and never returned. Rather, the record shows that the appellant had set up the matrimonial home in a rented accommodation, which he left and did not return to thereby abandoning the respondent. In his cross-examination, the appellant has also admitted that at the time of marriage the respondent had brought dowry with her. His testimony is extracted as under:- “At the time of my marriage respondent brought one bed, some utensils, one refrigerator, one washing machine and one almirah. We have returned all the articles of the respondent which belongs to her as per the list mentioned Ex. PW1/R1.”
17. Interestingly, in the cross-examination of the respondent/wife a suggestion was given which was accepted by the respondent, thereby fortifying her stand that the appellant had demanded ` 1 lakh and one motorcycle from her and on her failure to arrange the same, he abandoned her. The suggestion which was accepted as correct by the respondent is “It is correct that petitioner demanded Rs. One Lac and one motor cycle from me. This demand was raised in the presence of my in-laws.”
18. A person is not allowed to take advantage of his own wrong. The appellant has failed to prove his allegation of cruelty. Not just this, he had also demanded dowry and it is he who abandoned the respondent. Under the circumstances, there is no infirmity in the order of the learned trial judge inasmuch as the appellant is not entitled to a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. Furthermore, Section 23(1)(a) of the Act makes it abundantly clear that a decree can be granted when the Court is satisfied that the petitioner is in no way taking advantage of his wrong. Such is not the case here, as it is the appellant who abandoned the company of his wife.
19. Lastly, it is urged by learned counsel for the appellant that the parties have been living separately for the last 12 years and the marriage has virtually lost its meaning for them as they have reached a point of no return. She avers that there is no life in the marriage bond and that it should be dissolved for this reason. She has relied on para 26 of the Judgement in K. Srinivas Rao vs D.A. Deepa, 2013 (2) SCALE 735, reproduced as under:- “We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court’s decree.”
20. We have given thoughtful consideration to this argument of the learned counsel. While there is no dispute to the fact that the parties have not been living together for almost 12 years, yet a decree of divorce cannot be passed on this ground alone as has been observed by the Supreme Court in the Rao case (supra):- “Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act.”
21. No doubt in Naveen Kohli vs. Neelu Kohli (2006) 4 SCC 558, the Supreme Court made a recommendation to the Union of India to amend the Hindu Marriage Act to incorporate irretrievable breakdown of marriage as a ground for divorce, yet till date this ground of divorce has not been added to the Act. Also in Vishnu Dutt Sharma v. Manju Sharma (2009) 6 SCC 379, the Supreme Court held as under:- “On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature. Learned Counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned Counsel for the appellant.”
22. The Supreme Court in Anil Kumar Jain vs. Maya Jain 2009 (12) SCALE 115 clearly defined the jurisdiction of the High Court while considering the ground of irretrievable breakdown of marriage as a ground for granting divorce. The court has stated as under: 17. …….This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution.
23. This Court thus lacks jurisdiction to dissolve a marriage on the doctrine of “irretrievable breakdown”.
24. The findings of the Family Court that the respondent had no intention to desert the appellant cannot be faulted with especially when evidence shows that it was the appellant who had left her and the child in the rented accommodation where he stayed with them only for 2-3 days.
25. The order of the family court does not warrant any interference. The appeal has no merit and is dismissed.

DEEPA SHARMA (JUDGE)
S. RAVINDRA BHAT (JUDGE)

SEPTEMBER 21, 2016

sapna

Wife left 12 years ago. All accused in DOWRY case DISCHARGED !! Still NO divorce for man!

When I tell ppl that A MAN filing for divorce is taking a gamble and that could be costly and FUTILE, ppl just laugh at me !! Now guys tell me what this is ???

“…In his plea, the husband argued that since he and his wife had been living separately for the past 12 years, he should be allowed to end his marriage. ……”

“…On her part, the wife claimed she was harassed for dowry but HC found that everyone was discharged for lack of evidence by the trial court…”

No proof wife’s cruel, divorce plea junked

 

TNN | Sep 10, 2016, 01.02 AM IST

New Delhi: A man living separately from his wife for over a decade failed to get a divorce from the Delhi high court after he couldn’t prove that his wife was cruel.

A bench of Justices Pradeep Nandrajog and Pratibha Rani dismissed the appeal filed by the husband, pointing out that divorce can’t be granted merely on the grounds that a marriage is dead and there has been a breakdown.

“We know that the parties have been living separately for the past 10 years. Efforts made at different levels by the family court could not resolve the issue. Parties may claim that the marriage has broken down irretrievably as they could not reconcile themselves but the question is whether this is reason enough to be granted divorce. The answer is no according to the decision of the apex court,” the bench noted, refusing relief.

In his plea, the husband argued that since he and his wife had been living separately for the past 12 years, he should be allowed to end his marriage. The man had filed a petition seeking dissolution of marriage on account of cruelty.

But the trial court, on the basis of evidence, concluded that the accusations of cruelty against the wife could not be proved.

“We have no hesitation to conclude that the instances given by him are nothing but normal wear and tear in a matrimonial life, which cannot constitute mental cruelty and aren’t weighty enough to dissolve the marriage,” the court said.

On her part, the wife claimed she was harassed for dowry but HC found that everyone was discharged for lack of evidence by the trial court.

“What actually led the wife to separate from her husband along with her daughter is something only the couple knows,” HC noted.

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Husband LOOSES DIVORCE though wife suffering from PARANOID SCHIZOPHRENIA & needs medicine life long! Karnataka HC

As per expert doctor’s reports, the wife’s disease which started approx 9 years before marriage. Her own doctor says she NEEDS medicines LIFE LONG and at best the disease can be controlled and it cannot be cured !! Husband proves that the disease was hidden from husband before marriage) Wife refuses sex !, she hears voices when there is no one around, throws things on husband’s mother etc etc. Still HUSBAND DENIED DIVORCE !! Long live Marriage !!

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• marriage in 2011

• after marriage it comes to light that wife is suffering from various hallucinations and psychiatric symptoms since 2002 (9 years BEFORE marriage)

• after marriage, wife refuses sex saying someone is watching them even though there is NO one and all windows / doors are closed

• Wife throws vessels etc on mother in law and injures her

• there are various other allegations against the wife’s erratic behavior as well

• the NIMHANS (government hospital report clearly says) “…9. As per the report of the NIMHANS dated 1.4.2014, on her mental state examination, she was found to be asymptomatic. Her diagnosis is “Paranoid Schizophrenia”…“. !!!

• The NIMHANS report says the earlier doc, Dr C.Y.Sudarshan who has seen her over 10 years is the right person to treat her ”…9. As per the report of the NIMHANS dated 1.4.2014, on her mental state examination, she was found to be asymptomatic. Her diagnosis is “Paranoid Schizophrenia”. If she remains symptom-free, she may be able to discharge marital responsibilities. At the end, the report refers PW-3/Dr.C.Y.Sudarshan, Psychiatrist of Davangere, her treating Doctor as the most appropriate person to provide additional information since he has seen her for over a decade……“

• That doctor C.Y.Sudarshan, says the wife’s disease is NOT curable but has to take medicines life long !!. As per the Hon court’s summary ”…As per the testimony of PW-3 (the Doctor who has been treating her since the year 2002) she has Bipolar affective disorder i.e., disturbances of mood episodically. While under depressed mood, she has decreased appetite and sleep, poor concentration and fearful; during happy mood, she has mild anger and irritability in her behavior. In his opinion, if she is put on regular check-up and regular treatment, the disease that she is suffering with, can be controlled, but it is not curable…….“

• Still the Hon HC says the husband is NOT entitled to divorce

• The Hon HC says ”….25. In our considered opinion, the Court below was insensitive in branding the wife as suffering with completely incurable paranoid schizophrenia. …… We have living examples of lot many victims of such ailment in our society, who are leading life with the support of regular medication like any other normal members of the society. The appellant/wife, who was present before this Court, looked like any other person present in the Court hall, she is a M.C.A. graduate with 1st class with distinction and it is also the submission at the Bar, she was employed prior to her marriage, even if there is any apprehension of recurring of schizophrenic symptoms, the answer is in re-modeling the medicine, but not in amputing her marital/emotional life itself…..“ !!
  http://evinayak.tumblr.com/post/148184220214/wife-suffering-paranoid-schizophrenia-needing

 

Bombay HC Full bench overturns Madanlal Sharma Vs Santosh Sharma. Cruelty under Sec 13(1) (1a) of HMA defined.

This is a landmark case defining Cruelty under Sec 13(1) (1a) of HMA. In this case, as per the Hon Bom HC Full bench, cruelty as envisaged under the amended Sec 13(1)(1a) of HMA does NOT attract the old English doctrine of danger nor the statutory limits embodied in old S. 10(1)(b).

Excerpts :

“….14. To conclude, in our view, the cruelty contemplated under S. 13(1)(i-a) of the Act neither attracts the old English doctrine of danger nor the statutory limits embodies in old S. 10(1)(b). the cruelty contemplated is a conduct of such type that the petitioner cannot reasonably the expected to live with the respondent, and, therefore, Madanlal’s case 91980 Mah LJ 391) does not lay down the law on the point correctly…..”

 

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Bombay High Court

Keshaorao Krishnaji Londhe vs Nisha Londhe on 23 March, 1984

Equivalent citations: AIR 1984 Bom 413, (1984) 86 BOMLR 339

Author: Mohta

Bench: Chandurkar, Mohta, Dhabe

JUDGMENT Mohta, J.

1. Has Madanlal sharma v. Smt. Santosh Sharma 1980 Mah LJ 391 correctly laid down the law relating to “cruelty” as a ground for divorce as envisaged by S. 13(1)(I-a), Hindu Marriage Act, 1955 (“The Act” for short) is a point which needs answer in this reference to the Full Bench.

2. First of all, the factual back ground. Appellant Dr. K. K. Londhe, married the respondent Mrs. Nisha Londhe in the year 1950. The respondent is Christian by birth but she was converted to Hinduism and the marriage was performed according to Hindu rites. During the period of 16 years of marital life, the couple was blessed with three children. The married life unfortunately was unhappy. The respondent had gone to Bangalore some time after May 1966. In September 1966. She gave a notice to the appellant for restitution of conjugal rights to which no response was given. She therefore, filed a petition for custody of the children and also filed a civil suit for maintenance. In the year 1967, the appellant filed a petition for judicial separation under old S. 10(1)(b) of the Act on the ground of cruelty. The substance of the appellant’s contention was that the respondent was uncultured, she entertained uncultivated ideas of behaviour and had not developed any emotional bond requisite for a happy married life. She was dogmatic, quarrelsome, selfish, arrogant and had no emotions of affection and love even towards the children. She obtained complete control over the financial situation of the family, insulted the appellant from time to time, exhibited inhuman behaviour towards the children, prevented the children from following Hindu religion, exhibited total lack of attention to the family affairs and gave threats to commit suicide and falsely alleged illegitimate relationship between the appellant and a nurse by name Chellamma. The respondent contended in defence that unhappiness in the family life in only when the appellant became was serving as a medical Officer in the refugee camp at Chandrapur. She denied the allegations of cruelty.

3. The learned trial Judge came to the conclusion on evidence that the appellant had failed to prove such cruelty “as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party” as contemplated under old S. 10(1)(b) of the Act. He further held that the petition was based on the ground of incompatibility and the examples given were of moral cruelty not contemplated under that provision and that unless the cruelty alleged is shown to have endangered appellant’s health, no relief could be granted. He also held that the appellant was having illicit love affair with Chellamma and was leading an adulterous life. The petition was dismissed but the custody of the children was given to the appellant. Both parties filed an appeal which cam eto be dismissed by the Assistant Judge in the year 1971. Reliance was placed on the case of Dr. Narayan Dastane v. Mrs. Sucheta Dstane which had taken a view , as many other High Courts had taken, that cruelty contemplated under old s. 10(1)(b) meant legal cruelty as understood in English Law, namely, injury causing danger to lilfe or limb or health or reasonable apprehension of such injury. The appellant filed the present second appeal in the year 1972. During the pendency of the second appeal, the Marriage Laws (Amendment) Act 1976 (Act No.68 of 1976) was passed. It introduced drastic changes and obliged the Courts to decide pending petitions as if they had been originally instituted under the Act s amended. The Act No. 68 of 1976, inter alia, provided also for divorce on the ground of cruelty as mentioned in the amended provision, viz. S. 13(1)((i-a). The appellant sought an opportunity to amend the pleadings as contemplated under S. 39(2) of the Act No.68 of 1976. This amendment claiming relief of divorce under the new provision was allowed by this Court and thereafter hearing commenced in the second appeal. http://evinayak.tumblr.com/ https://vinayak.wordpress.com/ http://fromvinayak.blogspot.com

4. One development having bearing on the question may be noticed at this stage. The decision given by this Court in Dastane’s case (supra) was reversed by the Supreme Court in Dr. Dastane v. Mrs. Dastane decided on 19th Mar. 1975. The Supreme Court took view that it was risky to rely on foreign decisions on this question, the old English principles of doctrine of danger could not be applied and that the cruelty contemplated was such cruelty as qualified in old s. 10(1)(b), namely, “as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with the respondent”. It was further held that danger to life, limb or health or a reasonable apprehension of it is the higher requirement than a resonable apprehension that it is harmful or injurious for one spous to live with the other.

5. Now legislative background. The Act originally provided cruelty as a ground only for judicial separation under S. 10 and not for divorce under S 13. It was by the Hindu Marriage (Amendment) Act, 1964 (Act No. 44 of 1964) that the change was introduced in the form of S. 13(1A) by which it became posible to obtain a decree for divorce two years after passing of the dcree for judicial separation provided the parties did not resume cohabitation during that period. Old S. 10(1)(b) read as under:

“10(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district Court praying for a decree for judicial separation on the ground that the other party –

…………………..

has treated the petitioner with such cruelty as 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.”

By Act No. 68 of 1976, as mentioned earlier, drastic changes were brought about in the Act. A provision for divorce by mutual consent was introduced. Waiting period for obtaining divorce was reduced from one year right of repudiation of marriage to girls subjected to child marriage was conferred and the Amending Act was applied also to pending proceedings with a view to avoiod multiplicity of suits and consequent appeals. New S. 13 is subsituated for the former section and sub-s. (1) (I-a) reads thus :–

“13(1) Any marriage solemnized, whether before or after the commencement of this jAct, may, on a petition presented by either the husband or the wife, lbe dissolved by a decree of divorce on the ground that the other party –

……………………..

(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty ;

(i-b) ……………………………….”

The net effect of the amending Act is that any of the spouses can calim either judicial separation or divorce on the ground of cruelty as contemplated under the aforesaid clause. It may be mentioned that there is an analogous provision, viz., S. 27(1)(d) in the Special Marriage Act, 1954, for obtaining divorce on the ground of cruelty. This provision was also interpreted by various High Courts before Dastane’s becision in Supreme Court by applying the old English concept of doctrine of danger as was applied while interpreting old S. 10(1)(b) of the Act.

6. Before the learned single Judge it was contended one behalf of the respondent that cruelty contemplated under the Act as amended meant cruelty, as it is lunderstood under the old English concept, as the object of the amending Act was to nullify the effect of the decision of the supreme Court in Dastane’s case and to restore the ratio laid down by various Courts prior to the decision and to bring the new provision at par with s. 27(1)(d), Special Marriage Act. proposition on Madanlal’s case 91980 Mah LJ 391) (supra). The learned Judge hearing this appeal did not agree with the view taken in the said decision as a result, the matter was referred to the Division Bench, being unaware of the fact that decision redered in Madanlal’s case was confirmed by other Division bench in Letters Patent Appeal No. 28 of 1980 decided on 10th Mar. 1980. The Division Bench to which the matter was referred also did not agree with the view taken in Madanlal’s case as according to it the intention of the Amending Act was to liberalize the law of divorce in accordance with the modern trend and not to restore the doctrine of danger which now is discared even in England and hence this reference to the Full Bench.

7. We are inclined to take a view that Madanalal’s case (1980 Mah LJ 391) does not correctly lay down the position of law. Here are our reasons. In Madanlal’s case the learned Judge refused to took into the recommendations of the Law Commission as contained in its 59th Report and the Statement of Objects and Reasons of the Amending Act in order to examine the legislative intention, on the ground that this was impermissible except for purposes of finding out what the state of affairs was before the amendment. It was also held that even though the Amending Act generally intended to make and has actually made some provision relating to divorce liberal it may not be liberal “on a particular aspect”. It is observed –

“Mr. Vora, however, invited my attention to the statement of objects and reasons accompanying the bill which ultimately amended the Hindu Marriage Act in 1976. The concluding senence in the statement of objects and reasons reads as follows :–

“The objects of the legislation are mainly. (1) to liberalise the provisions relating to divorce, (2) to enable expeditious disposal of proceedings under the Act; and (3) to remove certain anomalies and handicaps that have come to light after the passing of the Acts”. 9See Gazette of India, Extraordinary, Part II, Jan-April 1976, page 780).

Mr. Vora contends that the view which I am taking militates against the intention of the Legislature as is expressed in the Statement of Objects and Reasons. I am unable to accept this contention of Mr. Vora. In the first place, the statement of objects and reasons cannot be referred to except for the purpose of finding out what the state of affairs was before the amendment. It cannot be referred to for under standing the meaning of any particular words in the state itself. The statement of objects and reasons has always been held to be an unsafe guide while interpreting the substantive provisions of lany enactmnet. Secondly, even though the Act intended to make and has actually made liberal some provisions relating to divorce, on a particular aspect a provision may not be made liberal. If the provision of cruelty as a ground of divorce were to be liberal, then in view of the decision of the Supreme Court in Dastane v. Dastane, , it was not even necessry to amend the Act. The fact that the Parliament though it fit to amend the ground relating to cruelty and bring it on par with the language used in the Special Marriage Act shows that on this aspect the intention of the Legislature, as it revealed through the words, was not to liberalise the ground relaing to cruelty. Furthermore, “where a word has been construed judicially in a certain legal area, it is, I think, right to give it the same meaning if it occurs in a statute dealing with the same general subject matter, unless the context makes it clear that the word must have a different construction”. (See Maxwell on The Interpretation of Statutes, 12th Edition, page 278). I have, therefore, no hesitation in holding that the expression to be found in S. 13(1)(i-a), Hindu Marriage Act, endorses necessarily the concept of cruelty as it is understood under the English law.”

In the first place, the view that either the recommendations of the Law Commission or the statement of objects and reasons cannot be looked into for judging the legislative intention even in case of doubt, is not correct. The law on the point is no more res integra. No more the old approach is held valid either in India or in Western countries. In the case of Sagnata Investment Ltd. v. Norwich Corporation (1971) 3 WLR 133 (CA) Lord Denning freely referred to the report of the Royal Commission on Betting, Lotteries and Gaming and to the Minister’s speech in the House of Commons on the bill for construing the Betting, Gaming and Lotteries Acts of 1963 and 1964. The decision of the House of Lords in Fothergill v. monarch Air lines Ltd. (1980) 2 All ER 696 (HL) is an indication of the shift in favour of more liberal use of legislative materials. The position is in no way different in India. In the case of union of India v. Steel Stock Holders syndicate, Poona free use of the statement of objects and reasons was made while interpreting some of the provisions of the Indian Railways Act pertaining to the provision relating to breach of contract. In K. P. Varghese v.l Income-tax Officer, Ernakulam , not only the Statement of Objects and Reasons of the bill was referred but even the speech made by the mover of the bill was referred. http://evinayak.tumblr.com/ https://vinayak.wordpress.com/ http://fromvinayak.blogspot.com

8. This takes us to the examination of 59th Report and the statement of objects and reasons of the relevant bill. Before we do so, we would like to refer to the social back ground against backdrop of which the bill was introduced. In the Shastrik Hindu Law divorce was unknown. Then came the Act which permitted judicial separation and divorce on some different grounds. On the ground of cruelty only judicial separation was permissible before 1964, after which divorce was permitted after waiting for a period of two years of the passing of decree for judicial separation and that too lon certain conditions. Examination of the grounds either for divorce or for judicial separation would reveal that the “fault theory” predominated. After the passing of the Act as well as the Special Marriage Act, various suggestions for their amendment all directed towards liberalization of law relating to divorce were put forth by members of Parliament as well as the general public. New trend of thinking had developed in society. The thinking was that there is no use maintaining the marriage as a facaee in the absence of emotional and other bonds which are the very essence of the marriage. It was considered better in the interest of healthy society to dissolve the marriage than meaninglessly to try it to limp along. The fault theory was thus considered as outdated and the “requested to examine the matter and the Commission presented the 59th Report of the Union Law Minister on 6th Mar. 1974. The committee on Status of Women in India generally supported the amendments proposed by the Law Commission.

9. The Statement of Objects and Reasons in terms refers to all these matters and the 59th Report of the Law Commission. The topic of cruelty as a ground for divorce is contained in paras 2.12. to 2.17 of the Report. It reads thus :

10. A draft on the following lines was suggested during our discussion :

“that the respondent has, since the solemnisation of the marriage, treated the petitioner with such cruelty that the petitioner cannot reasonably be expected to live with the respondent.”

We do not, however, think it necessary to add such limiting words, because we consider that the court would, even in the absence of such words broadly adopt the same approach.

It may incidentally be mentioned here that in many countries, matrimonial relief is provided to the aggrieved spouse on the ground of cruelty. This redress is usually justified on the ground of the principle of production.

to 2.16. Having considered all aspects of the matter, we have come to the conclusion that it is sufficient to provide for cruelty as a ground of divorce, and it should be left to the courts to determine on the facts of each case whether the conduct amounts to cruelty.

Accordingly, we recommended that in S. 13(1), Hindu Marriage Act, a new clause should be added as follows :–

“has treated the petitioner with cruelty”.

It would be seen that the above Commission is bodily lifted and put in S. 13(1)(i-a). It is sufficient to notice that the suggestion to add even certain limiting words contianted in para 2.12 was rejected because the Commission considered “that the Court would even in the absence of such words broadly adopt the same approach”.

In Dastane’s case the standard of cruelty was watered down from doctrine of danger to the “reasonable apprehension that it is harmful or injurious for one spouse to live with the other” as envisaged in old S. 10(1)(b). Even this legislative standard of cruelty – on which Supreme Court laid great stress – is made to disappear by Act 68 of 1976. Cruelty as a matrimonial offence has now no specified caveat tagged to it. It is now cruelty simpliciter. It is a well-known canon of interpretation that every amendment is intended to bring about a change in the existing law and is not an exercise in futility. This position is indeed not debated before us. The contention is that intention was to bring back the concept of cruelty on par with the age old English concept of doctrine of danger and to nullify the effect of Dastane’s case. We find it difficult to accept. In the first place, there is not even a Wisper in the Statement of Objects and Reasons directly or indirectly about Dastane’s case or the view that prevailed before that decision. Secondly the bill in terms refers to the recommendation contained in 59theREport which itself is submitted on 6th Mar. 1974 i.e. more than one year before the decision in Dastane’s case. When entire gneral trend of the Amending Act is towards a forward step of liberalization of divorce it is fallacious to hold that only with relation to cruelty as to ground for divorce intention was to make the law more stringment and to move backward. Indeed in view of law laid down in Dastane’s case, earlier decisions interpreting S. 27(1)(d), Special Marriage Act, are no longer good law and deserve to be reviewed.

11. There is yet another aspect to the question. The whole of the English Law relating to cruelty is judge made. The first Divorce, 9th Edition, page 123, para 79 states the law as under:

“Legal cruelty’ may be defined as conduct of such a character as to have caused danger to life, limb or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger. Where conduct over a period of years is relied on as constituting cruelty, it is very difficult to prove to the satisfaction of the court that there was reasonable apprehension of danger to health where actual injury is not proved. The fact that a marriage had broken down is no reason in itself for a finding of cruelty.”

This definition of cruelty was consistently applied in India while interpreting either provisions of the Act or the Special Marriage Act before Dastane’s case. Legislative history of law in England will indicate that egen there, the aforesaid concept has become outdates. Sweeping changes made in England in the law relating to divorce is a pointer matrimonial causes Act, 1965, was amended by the Divorce Reforms Act, 1969, permitting divorce on the sole ground of irretrievable breakdown of marriage. Section 2(1) of the said Act says –

“the Court hearing the petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say –

that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent ;

(c) that the respondent has deserted the petitioner for a continous period of at least two years immediately preceding the presentation of the petition ;

that the parties to the marriage have lived apart for a continous period of at least two years immediately preceding the presentation of the petition and the that the parties to the marriage have lived apart for a continous period of at least five years immediately preceding the presentation of the petition.”

The Matrimonial Causes Act, 1973, which repealed the 1969 Act contains analogous provisions. The behaviour of a type that the petitioner cannot reasonably be expected to live with the respondent is a valid ground for divorce even in England. This change in the approach cannot be ignored and it cannot be reasonably held that Indian Parliament in 1976 was oblivious of those development. It is pertinent to notice that changes suggested by the Law Commission and accepted by the Parliament are on almost similar lines. In this background also it is not possible to attribute intention to restore the higher standard of cruelty contemplated under the old concept, viz., danger to life, limb or health or reasonable apprehension thereof.

12. 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. A priori 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 59 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 crelty 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 therefore, that will have to be applied in interpreting S. 13(1)(i-a) has to be whether the cruelty is of such type that the petitioner cannot reasonable be expected to live with the respondent or living together of the spouses had become incompatible.

13. Now brief survey of precedents to which our attention was drawn. A single Judge of this Court in the case of Kalpana Shripati Rao v. Shripati V. Rao (1983) 1 DMC 483 has also taken a view of the matter similar to the one we are taking. The bare reading of the judgement will indicate that the view taken in Madanlal’s case (1980 Mah LJ 391) has not been approaved in this judgement. However, lwithout referring the matter to the larger Bench it has been held that by Act, l68 of 1976, not only there is no reversion to the old English concept but there is a forward march towards liberalisation of the divorce on the ground of cruelty and even the statutory limitations have now been done away with. In ashwini Kumar Sehgal v. Smt. Swatantar Sehgal 1979 Mat LR 26 (Punj & Har) taking a view that Act, 68 of 1976, has simplified the concept of cruelty, the Pubjab and Haryana High Court has aptly observed :–

“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 lilve together without mental agony torture or distress.”

In Balbir Kaur v. Dhir Dass it has been held that cruelty admits in its ambit and scope such acts that might even cause mental agony. Almost on the same lines is the view taken in Dr. Srikant Rangacharya Adya v. Smt. Anuradha . In Sulekha Bairagi v. Kamala Kanta Bairagi Calcutta High Court has taken a view that the cruelty need not be of such a character as to cause danger to life, limb or health or to give a rise to and that it has to be of the type contemplated under S 10(1)(b). However, according to this High Court, Act, 68 of 1976 has made no change in the law as declared in Dastane’s case by the Supreme Court. For the reasons which need not be repeated we are not in agreement with the latter part of the view, In Raj Kumar Manocha v. Anskuka Manocha 1983-1 DMC 448 Punjab & Haryana High Court has followed in terms the view take in Madanlal Sharma’s case (1980 Mah LJ 391), without giving any additional reasonings. In P. v. P. also decision in LPA No. 28 of 1980 has been followed in substance.

14. To conclude, in our view, the cruelty contemplated under S. 13(1)(i-a) of the Act neither attracts the old English doctrine of danger nor the statutory limits embodies in old S. 10(1)(b). the cruelty contemplated is a conduct of such type that the petitioner cannot reasonably the expected to live with the respondent, and, therefore, Madanlal’s case 91980 Mah LJ 391) does not lay down the law on the point correctly.

15. Reference answered accordingly. The Second Appeal be now placed before the single Judge for decision according to law. No order as to costs.

16. Answer accordingly.

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Preserve institution of marriage. Don’t grant divorce easily. Attempt reconciliation. SUPREME COURT !!

In this case the wife claims that she did NOT want a divorce and she was defrauded into a divorce. The Hon HC refuses her petition citing technical / time delay. Even though all lower courts have affirmed the divorce, the Hon SC allows wife’s petition emphasising on the need to preserve marriages and attempt at reconciliation

The stress is on reconciliation. The Hon SC differentiates between other civil suits and matrimonial cases

Excerpts and Emphasis :

“……A petition for divorce is not like any other commercial suit. A divorce not only affects the parties, their children, if any, and their families but the society also feels its reverberations. Stress should always be on preserving the institution of marriage. That is the requirement o law. One may refer to the Objects and Reasons which led to setting up of Family Courts under the Family Courts Act, 1984. For the purpose of settlement of family disputes emphasis is “laid on conciliation and achieving socially desirable results” and eliminating adherence to rigid rules of procedure and evidence. …”

“….It is now obligatory on the part of the Family Court to endeavour, in the first instance to effect a reconciliation or settlement between the parties to a Family dispute. It will be useful to note the qualifications and the method of selection of a Family Court Judge. That will be sub-sections (3) and (4) of Section 4 of the Family Courts Act:……”

“……….A duty is also cast on the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties. Under sub-section (3) of Section 23 of the Act, the court can even refer the matter to any person named by the parties for the purpose of reconciliation and to adjourn the matter for that purpose. These objectives and principles govern all courts trying matrimonial matters. ……”

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Supreme Court of India

Balwinder Kaur vs Hardeep Singh on 18 November, 1997

Author: D Wadhwa

Bench: Sujata V. Manohar, D.P. Wadhwa

PETITIONER: BALWINDER KAUR

Vs.

RESPONDENT: HARDEEP SINGH

DATE OF JUDGMENT:    18/11/1997

BENCH: SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T D.P. Wadhwa, J.

Leave granted.

Appellant-wife is in appeal against the judgment dated September 27, 1996 of the Division Bench of Punjab and Haryana High Court summarily dismissing her appeal filed under Section 28 of the Hindu Marriage Act, 1955 (for short `the Act’). Appellant had filed this appeal against the judgment and decree dated December 4, 1995 passed by the District Judge, Patiala in her own petition under Section 13 of the Act seeking divorce from her husband the respondent herein, on the grounds of cruelty and desertion. Appellant had alleged that fraud was perpetrated upon her by her husband in filing the petition for divorce which she said she never intended to file and never sought divorce from her husband. In the proceeding before the District Judge appellant appeared to have examined herself and also one Dalip Singh who claimed to be her material uncle which the appellant has denied. An ex-parte decree of divorce was granted by the District Judge, Patiala on the petition of the appellant. Appellant says when she became aware of the decree of divorce she moved the High Court in appeal which appeal, as noted above, was dismissed by the following order:

    “Neither any ground for condoning the delay of 263 days is made out
    nor there i any merit in the appeal. It is the applicant- appellant
    who filed a petition for divorce under Section 13    of the Hindu
    Marriage Act. If any fraud has been practised on the applicant, the
    present appeal is not the appropriate remedy. The remedy lies with
    the Civil Court. The application as well as the appeal is dismissed.”

The marriage between the parties was solemnised according to Sikh rites on February 18, 1991 at Sangrur, tehsil and District Patiala in the State of Punjab. After sometime it appears differences arose between the parties. Appellant on May 22, 1995 lodged a complaint with the Senior Superintendent of Police complaining harrassment by the respondent in connivance with his parties. She said her husband was having illicit relations with the wife of his elder brother and that her parents-in-law and brothers-in- law were hatching a conspiracy to kill her in order to get her husband married for a second time. She complained that for the last six months she was living with her parents because of the ill-treatment meted out to her and that all the persons named in the complaint were not permitting her to live in peace. There is an entry in the Police Station City Rajpura, District Patiala dated July 10, 1995 where compromise between the parties has been recorded. Reporting of the compromise was made by the respondent himself who was accompanied with various respectable persons whose names are recorded as under:

    “Sh. Diwan Singh S/o Daudagar Singh R/o H.No. 920 Gurbax Colony,
    Patiala, Shri Mohinder Singh, Sarpanch village Pillap Maghali, Sh.
    Sukhdev Singh Sarpanch Mando P.S. Ghanour, Sharan Singh Member
    Panchayat village, Alipur Raian, Jarnail Singh S/o Sh. Arjan Singh
    R/o Rampur, Bagh Singh Nambardar Village Ghaggar Sarai, Baldev Singh
    Nambardar village: Chamaru.”

The report further records that the compromise has been accorded between the parties with the help of the aforesaid persons after lodging of the complaint by the appellant against her husband when she felt annoyed. It was also reported that from that day onwards both parties will live separately from other members of the family and that respondent would not unduly cause hardship to the appellant. Since the complaint by the appellant had been addressed to the Senior Superintendent of Police her statement was separately recorded on July 21, 1995 withdrawing the complaint when she made the following statement:

    “Statement of Smt. Balwinder Kaur w/o Shri Hardeep Singh D/o Shri
    Tirath Singh R/o Kasturba Road, Rajpura Stated that I am the resident
    of the address given above. I got married to Hardeep Singh on
    18.2.91. I had a family problem with my husband Hardeep Singh and my
    in-laws family and because of this problem I had gone to the house of
    my mother and father at Samour because of which I gave this
    application. Both the parties with the aid and help of respectable
    persons and the Panchayat have arrived at a settlement. I have agreed
    to this settlement without any fear or pressure from any quarter. I
    agree to the settlement got done by the Panchayat. Now I do not want
    any action on the complaints given by me. Now I live separately from
    my in-laws house. sd/-
    
(BALWINDER KAUR) W/o Hardeep Singh d/o Tirath Singh R/o Kasturba
    Road, Rajpura 21.7.95″

On July 4, 1995 respondent had filed a petition against the appellant, his, wife, under Section 9 of the Act for restitution of conjugal rights in the court of the Additional Senior Sub Judge, Rajpura. This petition was withdrawn on February 14, 1996. The following is the record of proceeding on that day:

    “14.2.1996 – Present:- Counsel for the plaintiff.
    
    Counsel for the plaintiff has made statement that he does not want
    to proceed with this case. So in view of the statement of counsel for
    the plaintiff the suit of the plaintiff is dismissed as withdrawn.
    File be consigned to the Record Room.
    
    Announced        Sd/-
    Dt. 14.2.96        Civil Judge Junior
                Division, Rajpura”

Appellant submitted that service on her in this petition filed by her husband under Section 9 of the Act was wrongly got obtained. However, it is not necessary for us to go into all the details at this stage.

The petition for divorce filed by the appellant out of which this proceeding has arisen was instituted on September 4, 1995. We have gone through the petition for divorce. Apart from the date of the marriage between the parties the petition singularly lacks in better particulars though the petition is based on the alleged acts of cruelty and desertion. Respondent did not appear and the proceeding was exparte against him. Statement of the appellant was recorded on November 22, 1995 and that of her solitary witness also on the same day. The judgment of the learned District Judge allowing the petition is dated December 4, 1995. The judgment merely reproduces what the appellant had stated in the petition for divorce in general terms and the fact that she was an illiterate person and it proceeds as under:

    “Respondent Hardeep Singh did not turn up to contest the petition
    inspire of his service and therefore, he was proceeded exparte.
    
    I have recorded exparte proof of the petitioner. Balwinder Kaur
    petitioner appeared as AW1 and she examined Dalip Singh her maternal
    uncle.
    
    Petitioner while appearing as AW 1 supported her allegations made in
    the petition while Dalip singh AW2 her maternal uncle corroborated
    her. Both of them have stated that the respondent used to treat her
    with cruelty during her stay with him and deserted her for a
    continuous period of more than two years.

    In view of the exparte proof of the petitioner, I am satisfied that
    the respondent treated the petitioner with cruelty and deserted her
    for a continuous period of more than two years before the filing of
    the petition. Resultantly, I accept this petition and pass an exparte
    decree divorce in favour of the petitioner and against the respondent
    dissolving their marriage with immediate effect.
    
    No order as to costs.
    
    Pronounced.         Sd/District
                  Judge
    4.12.1995        Patiala.

Appellant has alleged fraud by her husband in getting her signatures on the petition for divorce and then bringing her to court to record her statement. Her case is she was unaware of what was happening and she in fact was duped in signing the petition and then appearing in the court as a witness. She said she never wanted divorce. During the course of hearing in this appeal, we enquired from learned counsel for the respondent if the respondent himself at any time wanted divorce and the reply was in the negative. The question then arises as to why the respondent allowed the proceeding to go ex-parte. There is no mention of the complaint filed by the appellant before the Senior Superintendent of Police and recording of the compromise between the parties and her own statement in the police on July 21, 1995. If the matter had been settled between the parties in July 1995 one may ask a question as to what was the reason for the appellant to file a petition for divorce within six weeks of the compromise. The conduct of the respondent in proceeding with the petition filed by him for restitution of conjugal rights is also not understandable. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

A petition for divorce is not like any other commercial suit. A divorce not only affects the parties, their children, if any, and their families but the society also feels its reverberations. Stress should always be on preserving the institution of marriage. That is the requirement of law.

One may refer to the Objects and Reasons which led to setting up of Family Courts under the Family Courts Act, 1984. For the purpose of settlement of family disputes emphasis is “laid on conciliation and achieving socially desirable results” and eliminating adherence to rigid rules of procedure and evidence. These further note:

“The Law Commission in its 59th report (1974) had also stressed that
in dealing with disputes concerning the family the court ought to
adopt an approach radically different from that adopted in ordinary
civil proceedings and that it should make reasonable efforts at
settlement before the commencement of the trial. The Code of Civil
Procedure was amended in 1976 to provide for a special procedure to
be adopted in suits or proceedings relating to matters concerning the
family. However, not much use has been made by the courts in adopting
this conciliatory procedure and the courts continue to deal with
family disputes in the same manner as other civil matters and the
same advisary approach prevails.”

It is now obligatory on the part of the Family Court to endeavour, in the first instance to effect a reconciliation or settlement between the parties to a Family dispute. It will be useful to note the qualifications and the method of selection of a Family Court Judge. That will be sub-sections (3) and (4) of Section 4 of the Family Courts Act:

“(3) A person shall not be qualified for appointment as a Judge
unless he-

(a) has for at least seven years held a judicial office in India or
the office of a member of a Tribunal or any post under the Union or a
State requiring special knowledge of law; or

(b) has for at least seven years been an advocate of a High Court or
of two or more such courts in succession; or

(c) possesses such other qualifications as the Central Government
may, with the concurrence of the Chief Justice of India, prescribed.

(4) In selecting persons for appointment as Judges,-

(a) every endeavour shall be made to ensure that persons committed
to the need to protect and preserve the institution of marriage and
to promote the welfare of children and qualified by reason of their
experience and expertise to promote the settlement of disputes by
conciliation and counselling are selected; and

(b) preference shall be given to women.”

Even where the Family Courts are not functioning, the objects and principles underlying the constitution of these courts can be kept in view by the civil trying matrimonial causes.

Under Section 21 of Hindu Marriage Act provisions of Code of Civil Procedure 1908, as far as may be, are applicable but that is subject to other provisions contained in the Act and to such rules the High Court may make in this behalf. Under Section 28 of Hindu Marriage Act decree of divorce is appealable. Section 28 of the Act is as under:

“28. Appeals from decrees and orders.-

(1) All decrees made by the court in any proceeding under this sub-
section (3), be appealable as decrees of the court made in the
exercise of its original civil jurisdiction, and every such appeal
shall lie to the court to which appeal ordinarily lie from the
decisions of the court given in the exercise of its original civil
jurisdiction.

(2) Orders made by the court in any proceeding under Act section 25
or section 26 shall, subject to the provisions of sub-section (3), be
appealable if they are not interim orders, and every such appeal
shall lie to the court to which appeals ordinarily lie from the
decisions of the court given in exercise of its original civil
jurisdiction.

(3) There shall be no appeal under this section on the subject of
costs only.

(4) Every appeal under this section shall be preferred within a
period of thirty days from the date of the decree or order.”

This Section 28 may be contrasted with Section 96 of the Code which provides for appeal from original decree, which, in relevant part, is as under:

“96. Appeal from original decree.- (1) Save where otherwise expressly
provided in the body of this Code or by any other law for the time
being in force, an appeal shall lie from every decree passed by any
Court exercising original jurisdiction to the Court authorised to
hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte. (3)
No appeal shall lie from a decree passed by the Court with the
consent of parties.”

Rules of procedures are meant to subserve the cause of justice and not to frustrate it. In the present case when fraud has been alleged by the wife in getting the petition for divorce filed through her when she never wanted a divorce and circumstances showed that what she said was prima facie probable and further from circumstance of the case hereinafter pointed out, the High Court in our opinion was not justified in rejecting the appeal without satisfying itself that the requirements of law had been satisfied.

Section 23 of the Hindu Marriage Act mandates the court before granting decree for divorce, whether defended or not to satisfy itself (1) if the grounds for claiming relief exist and the petitioner is not taking advantage of his or her own wrong or disability for the purpose of such relief and (2) the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty. A duty is also cast on the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties. Under sub-section (3) of Section 23 of the Act, the court can even refer the matter to any person named by the parties for the purpose of reconciliation and to adjourn the matter for that purpose. These objectives and principles govern all courts trying matrimonial matters. The judgment of the District Judge is silent of the learned Judge took into consideration all what is mentioned in Section 23 of the Act. A question also arises can a party defeat the provisions of sub-section (2) and sub-section (3) of Section 23 of the Act by remaining ex-parte and the court is helpless in requiring the presence of that party even if in the circumstances of the case so required. We are of the opinion that court can in such a situation require the personal presence of the parties. Though the proceedings were ex-parte in the case like this the court cannot be a silent spectator and it should itself endeavour to find out the truth by putting questions to the witnesses and eliciting answers from them. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

In the circumstances aforesaid, the High Court should not have summarily dismissed the appeal. By doing so it has also failed to exercise its power of superintendence under Article 227 of the Constitution. The High Court should have been if the proceedings before the District Judge were in accordance with the procedure prescribed and as per the law applicable. To direct the appellant to file a separate suit for setting aside the decree of divorce on the ground of fraud otherwise is hardly a solution to the case.

As to the correctness otherwise of the allegations made by the appellant or the stand taken, by the respondent, we do not wish to comment as it might prejudice the case of either of the parties as we are considering of remanding matter back to the District Judge for trial of the case afresh.

Accordingly, the appeal is allowed, the impugned judgment dated September 27, 1996 of the High Court and as well as that of District Judge dated December 4, 1995 are set aside. The matter will go back to the learned District Judge to try and proceed with the petition in accordance with law.

A copy of this judgment shall be sent to the District Judge, Patiala immediately and the parties are directed to appear in that court on December 17, 1977.

The appellant is entitled to costs which we quantify Rs. 2,000/-.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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