Varinder vs Major Ranjit Singh

V.P. Bhatnagar, J.—This is a first appeal against the order dated March 15, 1983 of the learned District Judge, Shimla, whereby he accepted the petition filed by Major Ranjit Singh under the provisions of Section 13 of the Hindu Marriage Act against Respondent Smt. Varinder for a decree of divorce by dissolution of their marriage.

Major Ranjit Singh''s case is that he was married to the Respondent on May 19, 1979 at Gurudwara Matwani Sahib, Tehsil Moga, District Faridkot. It was a love marriage. The parties stayed and cohabited as husband and wife at Mt. Abu and Pune till March, 1980 when the Petitioner was transferred to Shimla. Both of them thereafter stayed in Shimla and cohabited as husband and wife till October 10, 1980 on which date the Respondent left the company of the Petitioner without any reasonable cause. Since then, she failed to discharge her legal and moral duties as a wife. The Petitioner further alleged that the Respondent, after the solemnisation of the marriage, treated the Petitioner with cruelty. She quarrelled over trifles and would use filthy and abusive language against the Petitioner and his parents and relatives. She even hurled shoe on the Petitioner. She attacked him with a bath stool in the first week of October, 1980. She kept on demanding money, ornaments and property from the Petitioner and treated him with such cruelty as to cause reasonable apprehension in his mind that it would be injurious for him to live with her. There is a danger to the life and health of the Petitioner from the Respondent. In fact, their relations have become so strained that there is no chance of retrieve. On the above allegations, it was prayed that the marriage between the parties be dissolved by a decree of divorce on the grounds of cruelty and desertion.

The Respondent, in her reply, has admitted that love marriage took place between the parties on May 19, 1979. However, all other averments have been emphatically denied. The instances of alleged cruelty are stated to be false, baseless and concocted. According to her, Major Ranjit Singh started asking her to get money from her parents after three or four months of the marriage, presumably, at the instance of his brother. Her parents raised funds by selling house at Moga and from other sources and paid a sum of Rs. 60,000/- to the Petitioner and his brother. The Petitioner appeared to be interested only in extracting money from her parents. When she resisted the demands, she was treated with cruelty. She was tortured, abused, beaten and an attempt was made by her husband to do away with her life, It was under dramatic circumstances that he succeeded in procuring a statement from her that she got the burn injuries from a stove. Actually, it was an intentional act of criminal assault on her life. The efforts made on the part of her parents to get the matter reconciled failed so much so that her father was assaulted and the Petitioner and his brother posed danger to the life of her parents. Twice the matter was reported to the police. The Petitioner was addicted to liquor and was a spend-thrift and was short of money. The petition has been further resisted on the ground that it is not in accordance with law inasmuch as full particulars have not been given therein and that the Petitioner cannot be permitted to take undue advantage of his own wrongs.

The parties were taken to trial on the following issues:

Whether the Respondent has treated the Petitioner with cruelty both mental and physical as set dut in the petition ? OPP.

Whether the Respondent has deserted the Petitioner without any reasonable excuse ? OPP.

Whether the petition is not in accordance with law and to what effect ? OPR.

Whether the Petitioner is taking advantage of his wrong and to what effect ? OPR.

Relief.

The learned District Judge decided issues No. 1 and 2 in favour of the Petitioner but negatived issues No. 3 and 4 as they were not pressed by the Respondent at the time of arguments and proceeded to grant the Petitioner a decree of divorce. Hence, this appeal.

It may be stated at the very outset that the ground of desertion is not available to Major Ranjit Singh, Respondent before me, for the simple reason that the Appellant is alleged to have left him on October 10, 1980, whereas the petition u/s 13 of the Hindu Marriage Act was filed on October 22, 1981, that is, much before the statutory period of two years as stipulated u/s 13(1)(i-b) of the Hindu Marriage Act. In fact, the learned Counsel for the Respondent frankly conceded that he would not press the ground of desertion in support of his case. Thus, the only question which requires determination in this appeal is whether the Appellant has treated the Respondent with cruelty after the solemnisation of the marriage.

Before the enforcement of the Marriage Laws (Amendment) Act (68 of 1976) introducing drastic amendments in the Hindu Marriage Act, 1955, cruelty was the ground provided only for judicial separation. According to this provision, if the Petitioner had been treated with 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, a decree for judicial separation could be obtained. For the aforesaid purpose, the Courts in India enforced the English concept of cruelty meaning injury causing danger to life or limb or health or reasonable apprehension of such injury. However, the above-mentioned English concept was held inapplicable to India in Dr. N.G. Dastane Vs. Mrs. S. Dastane, wherein the Supreme Court fell back on the statutory requirement in old Section 10(1)(b) of the Hindu Marriage Act and held that cruelty must be such as to cause a reasonable apprehension in the mind of the Petitioner that it would be harmful or injurious for the Petitioner to live with the Respondent.

Then came the Marriage Laws (Amendment) Act (68 of 1976). It enabled any of the spouses to pray for either judicial separation or divorce on the ground of cruelty. Section 13(1)(i-a), introduced thereunder, reads:

13(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-

(i) ....

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

(i-b) .....

The Legislature has not defined "cruelty" and rightly so. It has left to the Courts to determine in a particular case on its own facts and merits if the facts substantiated constitute such cruelty as to warrant the dissolution of the sacred ties of marriage. While doing so, the background of the spouses, their culture, temperament, status and upbringing have to be borne in mind.

When the Legislature has intentionally refrained from attempting a definition, it will be unwise for the Courts to enter into that exercise. And there are good reasons for not doing so. It is because the variety of problems in all its mani festations cannot be possibly confined in a strait-jacket. More- over, the values held dear by the society at a given time are bound to keep on changing with the passage of time and so would the concept of cruelty.

Short of attempting a definition of "cruelty", the concept thereof for the purposes of Section 13(1)(i-a) of the Hindu Marriage Act must be explained in broad terms. Thus, if the aggrieved spouse can be held to be justified in concluding that it has become unbearable to live together with the other spouse due to his or her conduct, the ground of having been treated with cruelty may be invoked for seeking a relief of dissolution of marriage.

In Dr. Keshaorao Krishanji Londhe v. Mrs. Nisha Londhe, AIR 1984 Bombay 413, the Full Bench of the Bombay High Court has laid down the broad test for interpreting Section 13(1)(i-a) of the Hindu Marriage Act. According to it, the cruelty has to be of such type that the Petitioner cannot reasonably be expected to live with the Respondent.

In Ashwini Kumar Sehgal v. Smt. Swatantar Sehgal 1979 MLR 26 (Punjab and Haryana), the concept of cruelty has been described as follows:

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 live together without mental agony, torture or distress.

The above observations are of considerable assistance in determining whether the facts and circumstances of a particular case constitute cruelty.

The law applicable in the case having been cited, the evidence adduced by the parties may now be dealt with

The Respondent examined 7 witnesses in addition to stepping into the witness box as PW 1 in support of his own case. He has stated on oath that the Appellant had short temper and used to flare up on trifle matters and abused him, his parents and other relations. She hurled a shoe at him in the month of March or April, 1980. He has emphatically denied that he made an attempt on her life by attempting to burn her though he has admitted that she was admitted in the Walker Military Hospital at Shimla with burn injuries on her body during the period she stayed with him at Jutog. She was pregnant at that time. He has further denied that he ever made any demand for dowry or that her parents paid to him a sum of Rs. 60,000/- in cash by selling their land. It may be stated here that the allegations now sought to be levelled against the Respondent are totally unconvincing. According to the Appellant herself, she received burns in the month of May, 1980. She remained admitted in the Walker Military Hospital, Shimla, for 20 to 25 days. She had then narrated to the police that the burn injuries had been received by her due to the bursting of a stove. Not only this, she continued to stay with her husband even after this incident inasmuch as, according to her own case, she left him never to come back again on October 10, 1980. She has also admitted in her cross-examination that Capt. Kapur and his wife were her next door neighbours at Jutog when the Respondent had set fire to her clothes and further that they had come to the place of incident. However, no attempt has been made to examine any one of them in support of her case. Her explanation that she did not then file a case against the Respondent because she was pregnant and still wanted to continue as his wife hardly inspires confidence because the alleged incident was of too serious a nature to be ignored. It is also difficult to belive that a sum of Rs. 60,000/-was paid to the Respondent or any of his relatives in the month of September, 1981 when the parties had already separated in October, 1980. The parties admittedly contracted a love marriage which was not even attended to by the bride''s father. This eliminates, atleast at the time of marriage, the element of dowry or the presence of any greed on the part of the Respondent as a consideration for marriage. In any case, there does not appear much sense in making the payment of Rs. 60,000/- in September, 1981 when the parties were no longer living together after October 10, 1980.

Lt. Col. Surjit Singh, PW 2, is the elder brother of the Respondent and he has testified about the rude behaviour of the Appellant who had crossed all limits and would even abuse the Respondent in public. Major Sajjan Singh, PW 3, has deposed that he had social relations with the Respondent and that he had observed the Appellant not behaving properly with her husband. The Appellant would criticise the army officers and would tell the Respondent that he was of low caste and further that once she had even flung a shoe on him. The evidence of PW 4 P.N. Sharma is to the effect that the Appellant once lost temper while sitting in the club and behaved improperly with her husband. PW 5 Varinder Thakur had visited the Respondent at his residence. His testimony is to the effect that the Appellant refused to prepare tea for him when her husband asked her to do so.

The evidence narrated above does bring out the dark side of the Appellant�s conduct. Nevertheless, it has to be kept in mind that all these incidents took place much before October 10, 1980 upto which date the parties admittedly stayed together and continued to cohabit as husband and wife. The Respondent had stated so in his petition itself. It means that he had not only condoned the aforesaid acts but had also restored her to the position of his wife. It further follows that the Respondent cannot press these incidents into service as instances of cruelty.

What, however, helps the Respondent is the letter dated September 22, 1981 at Ex. PB written by the Appellant to the Station House Officer, Police Station, Chotta Shimla with a copy to the Superintendent of Police, Shimla. A number of allegations have been levelled against the Respondent in this letter, the authorship of which has been admitted by the Appellant in the witness box. It is in this letter that she has termed the burning incident which happened in the month of May, 1980 as an attempt on the part of her husband to put her on fire and thus take away her life. I have already given reasons about the falsity of this story. This letter further charges the Respondent for flirting with different ladies and states that his character from the very beginning has been doubtful and unsteady. It has also been stated therein that the Respondent, armed with weapons, threatened to kill the Appellant and her father. Actually, her father did lodge F.I.R. No. 57 of 1981 at Ex. PX on October 2, 1981 u/s 506 I.P.C. against the Respondent. He further lodged Anr. F.I.R. Ex. RW 4/A to the same effect at Police Station, Ladwa, District Karnal. The above allegations were also repeated in the letter Ex. PC addressed to the Vice Chier of Army atari on August 30, 1982 during the pendency of this petition in the District Court. Although this letter is written by the Appellant�s father, the address on it has been admitted to have been penned by the Appellant herself. Even if this letter is not taken into consideration as having been written during the pendency of the petition, the false allegations made earlier to it against the Respondent are of such serious nature as to render the living together of the spouses no longer bearable. In my opinion, the above acts fully establish that the Appellant did treat the Respondent with cruelty within the ambit of Section 13(1)(i-a) of the Hindu Marriage Act.

In view of the above discussion, I find no reason to inferfere with the order of the learned Court below. This appeal is, therefore, dismissed. However, in the totality of the circumstances of this case, there will be no order as to costs.