JUDGMENT
A.G. Qureshi, J.
1. This appeal arises out of an application of
divorce filed by the appellant Under Section 13 of the Hindu Marriage Act
against the respondent Rekha (wife) on the ground of desertion and mental
cruelty.
2. The case of the appellant in the lower Court was that both the
parties are employed as teachers in the Education Department. The appellant is resident of Sanawad and the respondent is resident of Dakhalgaon
They both are Hindu Brahmins and were married in Sanawad in the
month of May, 1980. At the time of the marriage the appellant was posted
at Khargone, whereas the respondent was posted at another station.
After the marriage the respondent resided with the appellant till June, 1980 as
husband and wife. Thereafter she deserted the appellant clearly saying that
she will not return to the house of her husband and thereafter through her
behaviour had been of causing mental torture and cruelty to the husband
and the members of his family.
3 The respondent Smt. Rekha denied all the allegations made by the
appellant in respect of desertion and cruelty. According to her she was
willing to return to the house of her husband and has not treated the husband
or any of his family members with cruelty. She was always willing and still
willing to live with the husband.
4. On the aforesaid avernments the learned lower Court framed five
issues to decide the suit and held that the respondent has not deserted the
appellant since 1980 and she has not treated the appellant with cruelty. She
did not make any allegations against the character of the husband and, therefore dismissed the suit. Hence this appeal.
5. The learned Counsel for the appellant Shri Waghmare challenges
the findings of the learned lower Court on every issue. According to Shri
Waghmare the judgment is based on improper appreciation of the eivdence.
6. On the other hand Shri Chaphekar, learned Counsel argues that
the learned lower Court has rightly appreciated the evidence on record and
has not erred in any way in dismissing the suit.
7. The petitioner in support of his case has stated on oath that the
petitioner was accused by the respondent that he was having illicit relations
with a lady and propagated the same. Secondly she did not attend the mother
of the appellant when she was seriously ill. On the contrary she made
attempts to secure the transfer of the appellant and told the mother of the
appellant that she will secure the transfer of her husband. Even after the
death of his mother she did not go for condolence and did not participate in
any of the ceremonies although she was living in the same city and in the
same mohalla where the appellant was living. On many occasions she insulted
the appellant. On the second day of Dussera she entered the house of the
appellant and broke her mangal sutra and threw it at the appellant. She also
broke the bangles and caused great humiliation to the appellant and gave an
impression that she has become a widow. She also gave push to the appellant
while riding a bicycle in Khargone. The appellant was a Director of a Cooperative Society which runs a cloth shop. The respondent went there and
humiliated the appellant and there she broke a coconut and said that she has
become a widow. She also visited the school of the petitioner and she told
the Principal that the appellant be driven out from the school. She also told
the Principal that her husband has run away from the house.
8. The appellant has further stated that during the Satyanarayan
Katha she forcibly entered the house of the appellant and threw chappal at the
petitioner and ran away. She was also dressing in white cloth without sindhoor in her hair partition and had managed to send a money order through
his sister wherein the address was written as Smt. Rekha Sharma, widow of
Mahendra Sharda, Brahmanpuri.
9. The witnesses examined by the appellant P.W. 6 Surendra Sharda
P.W. 7 Madanlal, P.W. 4 Mahesh, P.W. 5 Jagdish and P.W. 2 Gendalal have
given their statements corroborating the testimony of the petitioner. Now as
regards P.W. 2 Gendalal he states that Rekha had visited the school and told
the Principal to send her husband out, upon which the Principal asked the
appellant to go out. Similarly Balkrishna Badole (P.W. 3 also states that
Rekha suddenly came in the bada at the time of the katha, lifted the earthen
water container, threw it and broke it. She also hurled chappal at Mahendra
the appellant. P.W. 4 Mahesh Vyas was present at the house of the appellant
when Rekha visited the house and threw the mangal sutra at the appellant, broke the bangles and asserted that there was no relation between
them.
10. P.W. 5 Jagdish is the Manager of the Cloth Shop which was
visited by Rekha. She purchased some cloth and saying that her husband is
Mahendra. She also told that her husband did not purchase cloth for her and
got the bill prepared in the name of her husband. The next time she went to
the shop, she broke a coconut and distributed it amongst the persons present
and said that this is the prasad of her being a widow. P.W.6 Surendra
Sharda, who is the brother of the appellant, states that Rekha did not attend
his mother when she was ill. She also did not attend the wedding of his
sister and she wore white saris and she also threatened that she will burn the
whole Sharda family.
11. In rebuttal Smt. Rekha has examind herself as N.A. 5. She
states that she was with her husband during the summer vacation and when
her school reopened on 30.6.80 she went from Khargone to Dhakalga to join
her duty. Her treatment all through and her stay in the house of her husband
was cordial with her husband and mother-in-law. Her mother-in-law died on
1.12.80 because she was suffering from cnancer. She denies that she at any
point of time behaved with cruelty with her husband or humiliated him. She
never deserted her husband. She further states that she got herself transferred
to Khargone and she went to the house of her husband, but he died not allow
her to enter the house. Thereafter she served a notice Ex. 10 through her
Advocate, the reply of which was received (Ex. P-11). In Ex. D-ll the
appellant has said that she should come and stay with the appellant within ten
days failing which he will file a suit for divorce. Thereafter she went with
Bankimchandra Joshi a,nd then with Laad to live with her husband, but the
husband did not keep her. They lived as husband and wife only for 15 or
20 days. At that time also the husband used to come at 30′ clock in the
night and used to ill treat her. She did not make any allegations against her
husband.
12. Smt. Rekha has further deposed that actually her husband wanted
her to give the fully pay to him. Therefore she sent a money order for Rs.
500/- which was refused by the husband because he wanted the full salary.
As she was not informed about the death of her mother-in-law and the
marriage of her sister-in-law she did not go on those occasions. She also made
allegations that the appellant wants to get a share of her patern al house at
Sanawad. She states that after September, 1980 she did not go the house of
the appellant because on 18th September, 1980 the appellant had turned her
out of the house. She had also made an application to the Education Department
that her husband had turned her out and that he should be transferred to
Sanawad, whereupon her husband was transferred to Sanawad. She was
confronted with her written statement where she has not stated that she was
turned out by her husband from the house on 18.9.80, but she is not
in a position to state as to how it was not mentioned in the written statement.
13. The respondent Smt. Sharda further said that after 20.7.1983
she had gone to the house of the appellant; to the school of the appellant. However, she states that the door of the house was closed. She denies to have
written the letter Ex. P-l. Ex. P-2 is in the handwriting of her sister. In Ex.
P-2 it is written that Smt. Rekha Sharma widow of Mahendra Sharda. She
admits to have written Ex. P-3. In letter Ex. P-6 also the address is written
by her. However, she did not send this letter to the appellant. She admits
that she got the bill at the cloth shop in the name of her husband. She did
so for getting the rebate. When asked about the throwing of mangal sutra in
cross-examination she says that her husband had not given any mangal sutra
at all, but she had to put on a mangal sutra which she had purchased herself.
She admits that mangal sutra is put in the neck of the bride at the time of the
marriage, but as her husband had not brought the mangal sutra she did not
wear it on the day of marriage. She admits that she met her husband in the
school but she denies the allegation that she asked the Headmaster to turn out
the husband from the school to meet her. As regards the residence of her
husband with her at Sanawad, she explains that the husband could stay with
her at Sanawad and could also shift his mother, who was suffering with cancer,
with him.
14. She has also examined four witnesses in support of her case.
N.A.W. 1 M.akhanlal Laad states in para 5 that he had performed the marriage
on behalf of the respondent Smt. Rekha, being elder to her. The appellant
had told in his presence that the behaviour of the respondent is not good with
him. Thereafter he advised both of them that they should improve their
relations, but the relations deteriorated. A notice was received from the petitioner saying that if the respondent comes to the house of the respondent within a month he will keep her. Then he took the respondent to the house
of the appellant at Khargone, but he refused to keep Rekha with him. He is
not able to remember whether he took tea at the house of Mahendra when he
went there with Rekha. According to this witness Mahendra asked Rekha to
stay at the door, so she stayed there and he went to the house of Mahendra
and came back after talking to Mahendra.
15. N.A.W. 2 Kedarnath Billore states that in tne year 1985 he had
met Mahendra. At that time Mahendra told him that Rekha Sharma has
written a letter to him. Mahendra told that the letter of Rekha stated that he
had met an accident. N.W. 3 Bankim Joshi states that Rekha is the daughter
of his friend. Rekha had gone to him with a notice saying that Mahendra
Sharda had called him and, therefore, he had gone to Mahendra Sharda with
Rekha. At that time Mahendra was not in his house. When Mahendra came
he said to Mahendra that Rekha has come to your hour house, but Mahendra
did not allow Rekha to enter the house. Mahendra said that he cannot keep
Rekha with him. N.A.W-4 Fathelal Verma states that he had not seen any
male person going to the house of Rekha and he resides in the same locality
where Rekha resides.
16. From the above evidence it is manifest that on the one hand there
are allegations of desertion and cruelty, whereas on the other hand these facts
have been denied and on the contrary it has been pleaded that, it is the husband
who is not keeping the wife. Now, the learned Trial Court after appreciating
the evidence has disbelieved the testimony of the witnesses of the appellant and
has believed the testimony of the witnesses of the respondent and, therefore, it
has held that a case of divorce is not made out. In view of the aforesaid
evidence one fact is undisputed that Smt. Rekha lived with her husband
after the marriage only for 15 to 20 days and left the house in June, 1980. Since
then there has been no cohabitation till the filing of the divorce petition.
Even after her transfer to Khargone although she resided in the same Mohalla
where the husband lived, but still they lived separately. It is also admitted
that the money order coupen. Ex. P. 2 was written by the sister of Rekha
wherein the sender’s name has been written as Rekha Sharma widow of
Mahendra Sharda. There is no dent in the statement of Jagdish (P.W. 5)
when he says that a scence was created by Rekha in the shop and she had said
that the coconut is the prasad of her being a widow.
17. Similarly as regards the school incident the testimony of Mahendra
stands corroborated by the statement of P.W. 1 Gendalal and the statement of
Rekha partially admitting of going to school does not falsify the aforesaid
statements of P.W. 1 Gendalal and that of the appellant. The statement of
appellant Mahendra supported by the statement of Balkrishna in respect of
breaking the earthen water container and hurling chappal at Mahendra cannot
be brushed aside being false and without any foundation. P.W. 4 Mahesh kumar has also corroborated the statement of the, appellant in respect of
breaking of bangles and throwing the mangal sutra.
18. The lower Court has rejected the evidence of the witnesses of the
appellant holding them as interested witnesses. About the school incident
the evidence has been disbelieved because the Principal has not been examined.
According to the lower Court the appellant has not been able to establish the
case of cruelty to the hilt. However, the lower Court has not taken into consideration the money order coupen whereas the testimony of the witnesses
about the willingness of Rekha to live with her husband has been believed.
19. Now as regards desertion the Court of England in Pardy v. Pardy,
[(1939) 3 All E.R. 779] has held that animus deserendi has to be gathered from
the facts of each case and the case should be viewed from angle whether there
is a bonafide willingness to live in cohabitation. Whether these conditions
exist during the relevant period is a question of fact in each and inference can
be drawn from the words and conduct of the parties.
20. The Supreme Court in the case of Dr. N.G. Dastane v. Mrs
S. Dastane, (AIR 1975 SC, 1534) has held that when a petitioner alleges
cruelty such a charge has not to be established beyond reasonable doubt. The
belief regarding the existence of a fact may be founded on a balance of probabilities. A prudent man face with conflicting probabilities concerning a factsituation will act on the supposition that the fact exists. If on weighing the
various probabilities he finds that the preponderance is in favour of the existence
of the particular fact. As a prudent man, so the Court applies this test for
finding whether a fact in issue can be said to be proved. The first step in this
process is to fix the probabilities, the second to weigh them, though the two
may often intermingle. The impossible is weeded out at the first stage,
the improbable at the second. Neither Section 10 nor Section 23 of the Hindu
Marriage Act envisages that the petitioner must prove his case beyond
reasonable doubt Section 23 confers on the Court the power to pass a decree if
it is satisfied on matters mentioned in Clauses (a) to (e) of the Section and the
word ‘satisfied’ in Section 23 should be construed to mean satisfied on a preponderance of probabilities and not satisfied beyond reasonable doubt. Section 23 does
not alter the standard of proof in civil cases. In the same judgment the
Supreme Court has held that cruelty would include harm or injury to health
reputation, working career or the like. It is not necessary that the cruelty
must be of such a character as to cause danger to life, limb or health as to
give rise to a reasonable apprehension of such a danger. Therefore what the
Courts must determine is not whether the petitioner has proved the charge of
cruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has treated him with such cruelty as to
cause a resasonable apprehension in his mind that it will be harmful or
injurious for him to live with the respondent.
21. A Full Bench of the Bombay High Court in Dr. Keshaorao
Krishnaji Londhe v. Mrs. Nisfia Londhe has held that the cruelty contemplated
Under Section 13(1)(i-a) of the Act neither attracts old English doctrine of danger
nor the statutory limits embodied in old Section 10(l)(b) of the Hindu Marriage
Act. The cruelty contemplated is a conduct of such type that the petitioner
cannot reasonably be expected to live with the respondent. The conscience
of the Court should be satisfied 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 cruelty admits within its ambit acts that might even
cause mental agony.
22. Now, the evidence in the present case has to be examined in the
light of the aforesaid principle and then it has to be held whether the evidence
led by the appellant is such which may lead a prudent and reasonable man to
hold it probable. The appellant and the respondents are teachers. They were
married over a decade back. Out of this matrimonial relationship they lived
as husband and wife only for 20 to 25 days. Thereafter it is a story of
quarrels, disputes and without any attempt of reconciliation on the part of the
parties or the guardians and relatives who have examined themselves as witnesses. It is undisputed that the mother of the appellant was suffering with cancer
and the wife got the husband transferred from his paternal home to the place
where she was living which the appellant recented very much because his
mother was suffering with cancer and he did not want to leave his mother alone
in such an ailment. The explanation which has come from the wife is that at
Sanawad the husband and wife can live peacefully and the mother could also
be shifted to Sanawad, i.e. shifting a cancer patient from the Distt. Headquarter to a Tahsil place to which naturally the husband did not agree. In India
society when a wife declares herself as a widow or behaves like one, it is
treated as a very bad Omen and it is believed that such a woman wants the
death of her husband. It is highly probable that the sister of the wife sent
a money-order in the coupen of which she mentioned the senders name as
Rekha Sharma widow of Mahendra Sharda. In the sentimental society such
a thing is highly offending.
Similarly if the mangal sutra is thrown and the coconut is broken that
is also treated as bad Omen. Hurling abuses or causing humiliation to a
husband by the wife is also not viewed with approval in the present day
society.
23. Now the main question which has also to be considered for
appreciating the evidence and conduct of the parties is as to why after 15 or 20
days of the Marriage this separation took place without any reconciliation for
over a decade. It is not a case of the wife that the husband wanted dowry or
he has relation with some other woman which had caused him to keep the
wife away. The marriage are performed they are not for a period of few
days; but it is a life-long tie. But unfortunately nothing has come on record
to show that there was any ultarior motive on the part of the husband to keep
his wife away. On the contrary, it appears, that the problem has started on
the point whether the husband should live with his wife at Sanawad or continue
to live with his family. It is true that the wife being a Government servant
had to attend to her duties but when the mother-in-law was suffering with a
deadly ailment like Cancer she could always take some leave and go back to her
in-laws to serve the mother and be with the family. But it appears that the
initial attitude of the wife put a scar on the matrimonial relationship and thereafter the problems started which were aggravated when the wife got the
husband transferred to Sanawad and thereafter the money-order receipt, throwing the mangal sutra, humiliation all followed. The relation instead of
improving deteriorated day-by-day to such an extent that living in the same
city and in the same mohalla the husband and wife could not live together.
In such circumstances the inescapable conclusion is that the allegations made
by the husband in respect of the behaviour of the wife and humiliation is highly
probable due to which the discord in the relationship was aggravated. Therefore, the approach of the learned trial Court in holding that the charges are not
sufficiently be proved while assessing the evidence of the petitioner is erroneous
and not based on the principle of appreciation of evidence on the anvil of
preponderance of probabilities to a prudent man. In view of the aforesaid
discussion I am of the view that the charge of cruelty is proved against the
respondent.
24. However, as regards the desertion, the evidence shows that at a
later part of the time in reply to the notice the respondent did approach the
appellant for living with him and it has not been proved that her intention
was to desert her husband for ever. On the contrary appears that her main
intention was that the husband instead of living with his family should live
with her. As such the charge of desertion cannot be held to be proved.
25. In the result it held that the appellant, has been able to prove
the factum of cruelty and as such the ground Under Section 13(1) (i-a) of the Act
is proved, but the appellant has failed to prove the charge Under Section 13(l)(ib).
As such the petitioner is entitled to get a decree of divorce under the provisions
contained in Section 13(l)(ib) of the Hindu Marriage Act. I am also satisfied that
the husband is not in any way taking advantage of his own wrong or disability
for getting the relief and there is no collusion between the parties and there is
no legal impediment in granting the relief including that of laches. Consequently the appeal of the appellant is allowed. The decree passed by the lower
Court dismissing the divorce petition of the appellant is set aside instead a
decree of divorce is granted in favour of the petitioner-appellant against the
respondent for divorce Under Section 13(l)(ib) of the Hindu Marriage Act.
In the facts and circumstances of the case there shall be no order as to
costs.