Rupinder Kaur vs Gurjit Singh Sandhu

M.L. Singhal, J.—This is letters patent appeal under Clause 10 of the letters patent against the judgment and decree passed by the learned Single Judge of this Court in FAO No. 272 M of 1995 allowing the husband''s appeal and granting his petition for divorce dissolving his marriage by decree of divorce with Smt. Rupinder Kaur, the appellant (herein).

Facts of the case briefly stated are as follows:

Gurjit Singh Sandhu (husband) filed petition u/s 13 of the Hindu Marriage Act as amended by Marriage Laws Amendment Act 68 of 1976 against his wife Smt. Rupinder Kaur seeking dissolution of his marriage with her by decree of divorce on the ground of ''cruelty''. It was alleged by the husband that marriage took place on 9.10.1978 between them. She treated him with cruelty. She was short tempered and was creating fuss and scenes in the matrimonial home. She refused to serve him and his relations. She was disrespectful to him and his parents (after the death of her father). She was disrespectful to him and his mother. She, her mother and brothers had been putting pressure on her to live separate from his parents. It was not possible for her to accede to this request as he was to maintain his old and infirm parents, two younger sisters, one younger brother and his own two sons. On his refusal to accede to this request she deserted him and went to her parents, stayed with them for months together. She thus neglected him and her children. She took to this attitude after a year of her marriage. She stayed with him only for 1-1/2 years after marriage. After her father''s death she became pawn in the hands of her brothers and mother as it was her father who could advise her into putting up in the matrimonial home and serving her husband and children. After the death of her father she compelled him to provide some financial support to her brothers who were unemployed. He continued tolerating her behaviour towards him which was unbecoming of a dutiful wife in the hope that with the passage of time, she would mend her behaviour towards him. He did not take any precipitating steps lest his marriage should be wreacked. Her brother''s marriage took place on 31.1.1982. He gave Rs. 5000/- for her brother on account of his marriage. She went to her parents house to attend her brother''s marriage. She took 20-22 tolas of gold ornaments with her promising that she would return those ornaments after marriage. After marriage she did not return those ornaments. She returned to the matrimonial home without those ornaments. Since 8.4.1982, she has been putting up at her parental home. She has deserted him. Intervention of the Panchayat has not succeeded in bringing her back to the matrimonial home. Her brother has warned him that he would kill his entire family and set on fire their house. Due to the threats given by the wife''s family there is reasonable apprehension in his mind that it will be injurious for him to put up with her in the matrimonial home. In January, 1983, 6/7 persons came to their house armed with deadly weapons and they threatened that he would be shot dead. For 15/20 minutes they created unruly scene. He was saved by the P. Was and the inhabitant of the locality.

Rupinder Kaur (wife) contested this petition urging that she never treated her husband with cruetly nor she ever deserted him. She never showed disrespect to him or his parents. She or her patents never put pressure upon him to live separate from his parents. The fact of the matter is that the husband was actuated by greed and avarice pressurising her to claim her share in her late father''s property. To secure that end he started maltreating/manhandling her. He threw her out of the matrimonial home when she could not oblige him. It was denied that he ever gave financial assistance to her brothers. It was denied that she took any gold ornaments to her parents on the occasion of her brother''s marriage. She was all along anxious to put up in the matrimonial home, cohabit with him and serve him and the children. It was denied that any panchayat was ever brought by him for her rehabilitation into the matrimonial home.

On the pleadings of the parties the following issues were framed by the learned trial court:-.

Whether the respondent has treated the petitioner with cruelty? OPP

Relief.

At the conclusion of the trial, this petition was dismissed by the learned Additional District Judge, Amritsar vide judgment dated 9.10.1985. Not satisfied with the refusal of grant of relief of divorce to him the husband knocked the door of this court in FAO No. 272-M of 1985. Learned Single Judge allowed the appeal and set-aside the judgment and decree passed by the Additional District Judge and granted the husband decree of divorce.

Not satisfied with the judgment passed by the learned Single Judge, the wife has knocked the door of this Court through this Letters Patent appeal.

In our opinion, there is absolutely no reason to allow the dissolution of marriage of Gurjit Singh with Rupinder Kaur by a decree of divorce on the ground of ''cruelty'' as is defined in Section 13 of the Hindu Marriage Act, 1955 which reads as under :-

"13 Divorce. - (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(1)xxx xxx

(1a) has, after the solemnization of the marriage, treated the petitioner with cruelty;............."

In Dr. N.G. Dastane Vs. Mrs. S. Dastane, , their Lordships of the Supreme Court dealt with ''cruelty'' as understood in matrimonial law. In English law, ''cruelty,'' which is a ground for dissolution of marriage is, ''wilful and unjustificable conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger.'' However, in our law, this is not the requirement that cruelty to be a ground for dissolution of marriage should be wilful and unjustifiable conduct of that character as to cause danger to life, limb or health, bodily or mental or as to give rise to a reasonable apprehension of such danger, in our law, the petitioner is required to show only this much that the respondent has treated him/her with such cruelty as to cause reasonable apprehension in his or her mind that it would be harmful or injurious for him/her to live with other spouse. Clearly danger to life, limb or health or reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to live with the other. In this case, we have to see whether the petitioner has proved that the respondent has treated him with such cruelty as to cause reasonable apprehension in his mind that it would be harmful or injurious for him to live with her.

In many marriages each party, if it so wills, discover many a cause for complaint but such grievances may arise mostly from temperamental disharmony. Such disharmony or incompatibility is not cruelty and will not furnish a-cause for dissolution of marriage. We will, therefore, have regard only to grave and weighty instances and consider these to find what place they occupy on the marriage canvas". We have, therefore, to judge the acts complained of whether they ar6 mere temperamental adjustments or they are grave and weighty making one spouse to cohabit with other spouse without entertaining apprehension that it will be harmful or injurious for that spouse to live with other spouse acting as a reasonable persons impossible.

Gurjit Singh husband stated that he- was married on 9.10.1978. The wife cohabited with him for 3-1/2 years. Two children were born to her during this period. On 8.4.1982 she left matrimonial home without any reason and thereafter did not return to the matrimonial home. She was of nagging nature. She quarrelled with him and his parents for no good reason. For no good reason, she gave beating to the children. She gave beatings to the children so that he felt tortured and harassed. She took with her two attache-cases containing clothes and one knitting machine. In December, 1982 her brothers came to his house and threatened him that he would be done to death if he ever came to their house to take her to the matrimonial home. On 2.5.1982 he took Panchayat to her parental home for rehabilitating her in the matrimonial home. She then told him that she would join him after a few days. On the following day, he took both of his children to her parental home so that she felt moved to accompany him to the matrimonial home saying that she was not all concerned with the children. The husband filed petition for divorce on 23.2.1983 i.e. within a year of the alleged departure from the matrimonial home. This shows that the husband''s anxiety was not to rehabilitate the matrimonial home but to rid her of.

If his anxiety had been to rehabilitate the matrimonial home he would have sued her for restitution of conjugal rights or at any rate for judicial separation. Wife on the other hand stated that she cohabited with him and bore him two sons. Her father died on 6.1.1980. After the death of her father, her husband put pressure upon her to ask for her share in the property. On her refusal to ask for her share in the father''s property he began maltreating her. On 31.1.1982, her brother''s marriage took place. It was after good deal of entreaties to her husband that he accepted the invitation to attend the marriage. After that marriage she went to the matrimonial home and put up with him for a week. On 8.4.1982 she was again given beating and turned out of matrimonial home as she refused to oblige her husband. Her husband kept the children with him. Younger son was 1-1/4 years old and was on breast milk. Her brother and uncle approached him with the request to induct him into the matrimonial home. He refused to provide her room in the matrimonial home, rather came out with the demand of share in her father''s property, She further stated that her husband made no effort to rehabilitate her in the matrimonial home.

From the tenor of the statement of the husband, we do not feel that the wife ever treated him with cruelty or she ever treated him or any other member of his family with cruelty/discourtesy. He has not given any specific instance of her ill treatment towards them. Allegations made by him are vague and are too general in character. There is no evidence that the husband ever reported any incident of threat to him to the Panchayat or the Police against the wife''s brother. Conduct of the wife should have been such as to cause reasonable apprehension in the mind of the husband that it would not be possible for him to cohabit with her. These are ordinary wears and tears of marriage would not constitute ''cruelty''. Wears and tears of marriage can not be allowed to destroy the very foundation of marriage. Marriage is founded on mutual trust, faith, goodwill and affection. Mutual trust, faith, goodwill and affection have to be generated by the wife towards the husband and the husband towards the wife, during the course'' of their living together and building up of a home. Assuming that the wife was short tempered, picking up quarrels with the husband, his parents and his relatives for no good reason, tactful counselling to her could chasten her temperament and behaviour.

No wife would desire rupture in the matrimonial home in our social set up. She would always desire that there is no rupture in the matrimonial home as she knows that a deserted wife loses all esteem in her relations and is looked upon with dismay and disfavour. Assuming that marriage has broken down irretrievably, irretrievable breakdown of marriage is no ground to dissolve marriage. Wife is burden in her parental home. Whom she should look to ? Both the sons are with the husband.

Marriage of the parties was quite recent. In the early years of marriage effort should be to bring about adjustment. Every circumstances which might work at destroying of weakening the foundation of marriage should be eschewed by the husband, wife and the parents of both. Marriage is an institution devised by human society after such thought. Every effort should be made to preserve marriage. For the reasons given above, we are of the opinion that acts imputed to the wife by the husband do not amount to ''cruelty'' in legal parlance as ''cruelty'' is understood in the Hindu Marriage Act, 1955.

Hence, the appeal is allowed. The judgment and decree passed by learned Single Judge are set aside and those passed by the learned Additional District Judge are restored and the petition of the husband is dismissed.