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Babu Ram vs Kanta Devi on 17 November, 1988

Cites 3 docs
The Hindu Marriage Act, 1955
Section 13 in The Hindu Marriage Act, 1955
Ram Charan Das vs Girjanandini Devi And Ors on 20 April, 1965
Citedby 1 docs
Gurdev Singh vs Daljit Kour on 22 March, 2002

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Jammu High Court

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Equivalent citations: AIR 1990 J K 1, I (1990) DMC 586
Bench: R Sethi
Babu Ram vs Kanta Devi on 17/11/1988
JUDGMENT
R.P. Sethi, J.
1. Alleging cruelty and deserction the appellant herein filed an application
under Section 13 of the Hindu Marriage Act for the dissolution of the
marriage between the parties by a decree of divorce. The trial court
dismissed the petition vide the order impugned in this appeal by holding
that petition herein has completely failed to prove his case projected in the
petition filed.
2. The facts of the present appeal are that the marriage between the parties
was solemnized in the month of June, 1967 and out of wedlock one male
child was born in the month of Nov. 1969. It was alleged by the husband-
appellant that the conduct and behaviour of the respondent with him after
the marriage was neither good nor proper or affectionate and she wanted
money and monetary gains for her parents from him. The petitioner
submitted that he was posted at Udhampur and had kept the respondent-
wife at Sumelpur along with his parents where she is alleged to have mal-
treated with the parents of the appellant. It is further alleged that
respondent used to disobey whatever his parents used to tell her to do. She
used to slip away from the house without the consent of his parents. The
respondent-wife at times threatened the appellant and his parents. It was
submitted that it was not possible for the parties to live together any more.
3. In the objections filed by the respondent it was submitted that her
conduct towards the petitioner and all his family members was extremely
cordial, affectionate and good. Even though the petitioner had not shown
much affection for her and had exhibited an indifferent attitude towards
respondent, she as a pious Hindu lady served the petitioner and his parents
in the best possible manner and showered all her love and affection on the
petitioner. The respondent continued to live in the house of the petitioner
with the hope that he may improve his conduct and behaviour but all in
vain. The respondent had denied of being cruel to the petitioner or having
deserted him.
3A. On the pleadings of the parties the following issues were framed by the
trial court : --
1. Whether the respondent has treated the petitioner with cruelty? OPP
2. Whether the respondent has deserted the petitioner for a period of more
than two years? OPP
3. Relief.
The petitioner examined Hans Raj, Risal Singh and Gurdial as his witnesses
and in rebuttal the respondent produced Ranja Ram, Pushpa Devi, Bishan
Dass and Sardari Lal as her witnesses. Both the petitioner and the
respondent also appeared in the Court as their witnesses.
4. I have heard the learned counsel for the parties and perused the record.
5. And the effort was made for reconciliation between the parties which
failed.
6. After going through the statements of witnesses of the parties named
hereinabove I have come to the conclusion that the petitioner failed to
prove either the cruelty or desertion attributed to the respondent-wife in
this case. No evidence worth any mention was produced by the petitioner to
prove the issue regarding cruelty.
7. Mere abandoning the matrimonial house may not amount to desertion
unless it is shown that the deserting spouse had intended permanent
forsaking and abandonment of spouse by the other without that other's
consent and without reasonable cause. Desertion is a total repudiation of
the obligation of marriage and is not to withdrawal from a place but from a
state of things. The person who actually withdraws from cohabitation is not
necessarily the deserting the party. The offence of desertion is a course of
conduct which exists independently of its duration and is a continuing
offence. Pollock described it as.-
"Desertion is not a single act complete in itself and revocable by a single act
of repentance. The act of departure from, the other spouse draws its
significance from the purpose with which it is done as revealed by
conductor other expressions of intentions. A mere temporary parting is
equivocal unless and until its purpose and object is made plain."
8. The Supreme Court in Bipin Chandra Shah v. Prabhavati, AIR 1957 SC
176 (at p. 184) defines the desertion as.-
".....It is well settled that in proceedings for divorce the plaintiff must prove
the offence of desertion, like any other matrimonial offence beyond all
reasonable doubt Hence though corroboration is not required as an
absolute rule of law the courts insist upon corroborative evidence unless its
absence is accounted for to the satisfaction of the Court."
It has been held by the English, Courts that though the parties may reside
under the same roof yet there may be desertion by a party to the other. The
crucial aspect to be seen as to what constitutes desertion is not walking out
of a house but withdrawal from a home. A distinction must be made
between a house and home. A house is built by hands, but a home is built
by hearts. According to explanation under Sub-section (i) of Section 13 of
the Act the expression "desertion" means "the desertion of the aggrieved by
the other party without reasonable cause and without the consent or
against the wish of such party and includes the wilful neglect of the party by
the other party to the marriage. The party must prove that the other party
has deserted the petitioner without his or her consent or against the wishes.
In a petition filed to obtain a relief on the ground of desertion by the
petitioner the factum of desertion has to be proved. Desertion within the
meaning of the provisions of the Act does not imply only a separate
residence and separate living. There must be determination to put an end to
marital relations and to cohabitation permanently. It is well settled
principle of law as recognized by the Hindu Marriage Act that no party can
be allowed to take advantage of his/her own wrong. En the instant case a
perusal of the statement of the appellant would show that the respondent-
wife is only alleged to have left the house and went to the house of her
parents but he has not slated anywhere that she had left his company with
the intention of permanently forsaking his company or that she withdraw
from his society which would amount to desertion within the meaning of
Section 13 of the Hindu Marriage Act. It also does not come out from the
record that the appellant had made any efforts to bring his wife back to his
matrimonial fold for the rehabilitation of conjugal relationship or that the
wife had ever refused to come, live and reside with him under his roof and
protection. The appellant having failed to prove the precondition of
desertion as stated hereinabove was rightly held not entitled to the grant of
the relief under the provisions of the Hindu Marriage Act.
9. The appellant has also failed to prove the cruelty alleged in the case as
such is not entitled to the grant for divorce. Cruelty is not confined to
physical cruelty but also includes mental cruelty. In the case of physical
cruelty harm or injury inflicted is to the body directly and in the case of
mental cruelty, the harm or injury caused is through the mind but
nevertheless it is a harm or injury caused to the human body. The question
of mental cruelty should be decided in the light of the. norms of marital ties
of the particular section of the society to which the parties belong keeping
in view their social values and the status of the parties. The cruelty may
consist of various forms and it must be productive of an apprehension in
the mind of the other spouse that it is dangerous to live with the erring
party. Wilful and unjustifiable interference by one spouse in sphere of life
of the other is one species of cruelly in the same way in which rough or
domineering conduct or unnatural sexual practices or disgusting accusation
of unchastity or adultery and some times even studied, unkind or persistent
nagging can in a proper case be regarded as cruelty. In the instant case the
appellant has not been in a position to establish the physical or mental
cruelly attributed to the respondent wife. The trial Court, therefore, was
justified in rejecting his prayer for the grant of a decree of divorce on this
ground as well.
10. Mr. Wazir the learned counsel for the appellant has however submitted
that as in fact the marriage between the parties has broken there will be no
purpose for keeping the same alive particularly when the parties cannot live
together despite dismissal of the petition. He has referred to a judgment of
Rajasthan High Court reported in AIR 1978 Raj 140 (at p. 155) wherein was
held that:
"Their marriage is now only an empty shell which should be destroyed with
the maximum fairnessand minimum bitterness. I am satisfied that the
marriage deserves to be dissolved. If they cannot bury the hatchet, let them
bury the marriage and live again. Divorce, is no doubt not a cure for
matrimonial happiness and may result in loneliness despair and hardship
more to the child than to the spouse but the parties are young and
fortunately belong to a community in which severance of marriage and
remarriage are not uncommon events and may be able to find more
agreeable parties."
A perusal of the aforesaid judgment would show the Rajasthan High Court
directed the dissolution of marriage primarily being moved by the fact that
the parties in that case belonged to a community in which severance of
marriage and re-marriage were not uncommon. In the instant case there is
nothing on record to suggest that the parties were interested in re-marriage
or that they belong to a community in which severance of marriage or re-
marriage was common. It would be dangerous to compare the marriage
with sheds or direct its destruction if the shell is found empty. If the parties
to the marriage cannot bury the hatchet, they cannot be permitted to bury
the marriage as observed by Rajasthan High Court which has completely
ignored the historical growth of the institution of marriage, the family and
the society.
11. The growth of the Institution of marriage is connected with the
economic, social and political situations prevalent in the society at a given
time. The present society is constituted of different units, the smallest being
family. The foundation upon which the structure of the family rests is the
institution of marriage which dates back to the time, the modern civilised
world came into existence. Centuries of human experience have resulted in
giving a social meaning to the term, marriage which originated from the
loose sexual relations between man and woman.
12. The marriage legalises the sexual relations between man and woman in
the society for the perpetuation of the race, permitting lawful indulgence in
passions, to prevent licentiousness and for procreation of children. Unlike
primitive age, the lower unit of the society are not based upon sex groups
but its shape is determined by the family existing in the society. The
Institution of marriage has travelled through three main stages of human
development, that is, Savagery, Barbarism and Monogamy. Various
philosphers of history including Bachofen, Morgan, J.F. McLomman,
Lubbock, and Engles have traced the origin of the Institution of the
Marriage from the original state of humanity when man and woman lived
in a state of sexual promiscuity popularly known as "hetaerism" and such
promiscuity excluded certainty as regards paternity, the lineage, therefore
could be reckoned only through the female line, that is according to mother
right. The women, as mother's were the only definitely ascertainable
parents of the younger generation and treated with a high degree of
consideration and respect and the rule of women in that protective age is
known as "gynaecocracy". The devolution to the marriage to the state of
monogamy implied to the evolution of primeval religious injunction
conferring right upon a man to have relations with a specified woman. The
evolution was based upon the development in religious ideas, the social and
economic growth in the society and a comparatively progressive outlook
prevalent. The concept of marriage has differed from age to age and society
to society which was determined on the basis of the socio-economic
political system then prevalent. The duration of the urge of individual sex
differs according to the individual, particularly among men and a defaction,
cessation of affection or its displacement by a new passionate love by
directing easy separation to the man, would amount to blessing the, erring
spouse particularly husband as predominantly our society is influenced by
male chauvinism. An attempt has to be made to keep the institution of
Marriage intact as far as possible, for keeping the balance of good values in
the society. The sanctity of the marriage and the acknowledged pious
relationship between man and woman cannot be compared with shells or
other objects. The structure of human society is based upon the historical
evolution determined by various considerations prevalent at particular lime
in the society. The Courts have to adopt an approach by which the smallest
unit of the society is not easily destroyed, unless it is proved to have
crumbled down under its own pressure. Hindu Marriage was considered, as
a "Sanskar" as conceived in Yajnavalkya Smriti as distinguishable from
Christian and Muslim marriage which is a contract with some religious
sanctity. The Hindu Marriage Act has brought revolutionary changes in the
concept of the marriage which is no more," once a marriage always a
marriage" as the same can be dissolved by a decree of divorce or judicial
scparalion if the existence of the circumstances provided under the Act are
proved to be existing by the aggrieved party. It appears that the Rajasthan
High Court while passing the judgment completely ignored the concept of
the marriage being the foundalion of the institution of family which is the
smallest unit in the society. Easy dissolution of marriage may result in
crumbling down of the whole of the instilution of the family resulting in
destruction of the society. With great respect I differ from the views of
Rajasthan High Court as expressed in AIR 1978 Raj 140, Even if the
marriage is held to be a shell, the same cannot be directed to be destroyed if
empty unless it is full of explosives.
13. There is no merit in this appeal which is hereby dismissed with costs.