{"id":123434,"date":"1992-03-18T00:00:00","date_gmt":"1992-03-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mahendra-sharda-vs-rekha-on-18-march-1992"},"modified":"2016-11-28T08:03:22","modified_gmt":"2016-11-28T02:33:22","slug":"mahendra-sharda-vs-rekha-on-18-march-1992","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mahendra-sharda-vs-rekha-on-18-march-1992","title":{"rendered":"Mahendra Sharda vs Rekha on 18 March, 1992"},"content":{"rendered":"
Madhya Pradesh High Court<\/div>\n
Mahendra Sharda vs Rekha on 18 March, 1992<\/div>\n
Equivalent citations: II (1992) DMC 320<\/div>\n
Author: A Qureshi<\/div>\n
Bench: A Qureshi<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
A.G. Qureshi, J.<\/p>\n
1. This appeal arises out of an application of
\ndivorce filed by the appellant Under Section 13 of the Hindu Marriage Act
\nagainst the respondent Rekha (wife) on the ground of desertion and mental
\ncruelty.\n<\/p>\n
2. The case of the appellant in the lower Court was that both the
\nparties are employed as teachers in the Education Department. The appellant is resident of Sanawad and the respondent is resident of Dakhalgaon
\nThey both are Hindu Brahmins and were married in Sanawad in the
\nmonth of May, 1980. At the time of the marriage the appellant was posted
\nat Khargone, whereas the respondent was posted at another station.
\nAfter the marriage the respondent resided with the appellant till June, 1980 as
\nhusband and wife. Thereafter she deserted the appellant clearly saying that
\nshe will not return to the house of her husband and thereafter through her
\nbehaviour had been of causing mental torture and cruelty to the husband
\nand the members of his family.\n<\/p>\n
3 The respondent Smt. Rekha denied all the allegations made by the
\nappellant in respect of desertion and cruelty. According to her she was
\nwilling to return to the house of her husband and has not treated the husband
\nor any of his family members with cruelty. She was always willing and still
\nwilling to live with the husband.\n<\/p>\n
4. On the aforesaid avernments the learned lower Court framed five
\nissues to decide the suit and held that the respondent has not deserted the
\nappellant since 1980 and she has not treated the appellant with cruelty. She
\ndid not make any allegations against the character of the husband and, therefore dismissed the suit. Hence this appeal.\n<\/p>\n
5. The learned Counsel for the appellant Shri Waghmare challenges
\nthe findings of the learned lower Court on every issue. According to Shri
\nWaghmare the judgment is based on improper appreciation of the eivdence.\n<\/p>\n
6. On the other hand Shri Chaphekar, learned Counsel argues that
\nthe learned lower Court has rightly appreciated the evidence on record and
\nhas not erred in any way in dismissing the suit.\n<\/p>\n
7. The petitioner in support of his case has stated on oath that the
\npetitioner was accused by the respondent that he was having illicit relations
\nwith a lady and propagated the same. Secondly she did not attend the mother
\nof the appellant when she was seriously ill. On the contrary she made
\nattempts to secure the transfer of the appellant and told the mother of the
\nappellant that she will secure the transfer of her husband. Even after the
\ndeath of his mother she did not go for condolence and did not participate in
\nany of the ceremonies although she was living in the same city and in the
\nsame mohalla where the appellant was living. On many occasions she insulted
\nthe appellant. On the second day of Dussera she entered the house of the
\nappellant and broke her mangal sutra and threw it at the appellant. She also
\nbroke the bangles and caused great humiliation to the appellant and gave an
\nimpression that she has become a widow. She also gave push to the appellant
\nwhile riding a bicycle in Khargone. The appellant was a Director of a Cooperative Society which runs a cloth shop. The respondent went there and
\nhumiliated the appellant and there she broke a coconut and said that she has
\nbecome a widow. She also visited the school of the petitioner and she told
\nthe Principal that the appellant be driven out from the school. She also told
\nthe Principal that her husband has run away from the house.\n<\/p>\n
8. The appellant has further stated that during the Satyanarayan
\nKatha she forcibly entered the house of the appellant and threw chappal at the
\npetitioner 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
\nhis sister wherein the address was written as Smt. Rekha Sharma, widow of
\nMahendra Sharda, Brahmanpuri.\n<\/p>\n
9. The witnesses examined by the appellant P.W. 6 Surendra Sharda
\nP.W. 7 Madanlal, P.W. 4 Mahesh, P.W. 5 Jagdish and P.W. 2 Gendalal have
\ngiven their statements corroborating the testimony of the petitioner. Now as
\nregards P.W. 2 Gendalal he states that Rekha had visited the school and told
\nthe Principal to send her husband out, upon which the Principal asked the
\nappellant to go out. Similarly Balkrishna Badole (P.W. 3 also states that
\nRekha suddenly came in the bada at the time of the katha, lifted the earthen
\nwater container, threw it and broke it. She also hurled chappal at Mahendra
\nthe appellant. P.W. 4 Mahesh Vyas was present at the house of the appellant
\nwhen Rekha visited the house and threw the mangal sutra at the appellant, broke the bangles and asserted that there was no relation between
\nthem.\n<\/p>\n
10. P.W. 5 Jagdish is the Manager of the Cloth Shop which was
\nvisited by Rekha. She purchased some cloth and saying that her husband is
\nMahendra. She also told that her husband did not purchase cloth for her and
\ngot the bill prepared in the name of her husband. The next time she went to
\nthe shop, she broke a coconut and distributed it amongst the persons present
\nand said that this is the prasad of her being a widow. P.W.6 Surendra
\nSharda, who is the brother of the appellant, states that Rekha did not attend
\nhis mother when she was ill. She also did not attend the wedding of his
\nsister and she wore white saris and she also threatened that she will burn the
\nwhole Sharda family.\n<\/p>\n
11. In rebuttal Smt. Rekha has examind herself as N.A. 5. She
\nstates that she was with her husband during the summer vacation and when
\nher school reopened on 30.6.80 she went from Khargone to Dhakalga to join
\nher duty. Her treatment all through and her stay in the house of her husband
\nwas cordial with her husband and mother-in-law. Her mother-in-law died on
\n1.12.80 because she was suffering from cnancer. She denies that she at any
\npoint of time behaved with cruelty with her husband or humiliated him. She
\nnever deserted her husband. She further states that she got herself transferred
\nto Khargone and she went to the house of her husband, but he died not allow
\nher to enter the house. Thereafter she served a notice Ex. 10 through her
\nAdvocate, the reply of which was received (Ex. P-11). In Ex. D-ll the
\nappellant has said that she should come and stay with the appellant within ten
\ndays failing which he will file a suit for divorce. Thereafter she went with
\nBankimchandra Joshi a,nd then with Laad to live with her husband, but the
\nhusband did not keep her. They lived as husband and wife only for 15 or
\n20 days. At that time also the husband used to come at 30′ clock in the
\nnight and used to ill treat her. She did not make any allegations against her
\nhusband.\n<\/p>\n
12. Smt. Rekha has further deposed that actually her husband wanted
\nher to give the fully pay to him. Therefore she sent a money order for Rs.
\n500\/- which was refused by the husband because he wanted the full salary.
\nAs she was not informed about the death of her mother-in-law and the
\nmarriage of her sister-in-law she did not go on those occasions. She also made
\nallegations that the appellant wants to get a share of her patern al house at
\nSanawad. She states that after September, 1980 she did not go the house of
\nthe appellant because on 18th September, 1980 the appellant had turned her
\nout of the house. She had also made an application to the Education Department
\nthat her husband had turned her out and that he should be transferred to
\nSanawad, whereupon her husband was transferred to Sanawad. She was
\nconfronted with her written statement where she has not stated that she was
\nturned out by her husband from the house on 18.9.80, but she is not
\nin a position to state as to how it was not mentioned in the written statement.\n<\/p>\n
13. The respondent Smt. Sharda further said that after 20.7.1983
\nshe 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
\nwritten the letter Ex. P-l. Ex. P-2 is in the handwriting of her sister. In Ex.
\nP-2 it is written that Smt. Rekha Sharma widow of Mahendra Sharda. She
\nadmits to have written Ex. P-3. In letter Ex. P-6 also the address is written
\nby her. However, she did not send this letter to the appellant. She admits
\nthat she got the bill at the cloth shop in the name of her husband. She did
\nso for getting the rebate. When asked about the throwing of mangal sutra in
\ncross-examination she says that her husband had not given any mangal sutra
\nat all, but she had to put on a mangal sutra which she had purchased herself.
\nShe admits that mangal sutra is put in the neck of the bride at the time of the
\nmarriage, but as her husband had not brought the mangal sutra she did not
\nwear it on the day of marriage. She admits that she met her husband in the
\nschool but she denies the allegation that she asked the Headmaster to turn out
\nthe husband from the school to meet her. As regards the residence of her
\nhusband with her at Sanawad, she explains that the husband could stay with
\nher at Sanawad and could also shift his mother, who was suffering with cancer,
\nwith him.\n<\/p>\n
14. She has also examined four witnesses in support of her case.
\nN.A.W. 1 M.akhanlal Laad states in para 5 that he had performed the marriage
\non behalf of the respondent Smt. Rekha, being elder to her. The appellant
\nhad told in his presence that the behaviour of the respondent is not good with
\nhim. Thereafter he advised both of them that they should improve their
\nrelations, 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
\nof the appellant at Khargone, but he refused to keep Rekha with him. He is
\nnot able to remember whether he took tea at the house of Mahendra when he
\n went there with Rekha. According to this witness Mahendra asked Rekha to
\nstay at the door, so she stayed there and he went to the house of Mahendra
\nand came back after talking to Mahendra.\n<\/p>\n
15. N.A.W. 2 Kedarnath Billore states that in tne year 1985 he had
\nmet Mahendra. At that time Mahendra told him that Rekha Sharma has
\nwritten a letter to him. Mahendra told that the letter of Rekha stated that he
\nhad met an accident. N.W. 3 Bankim Joshi states that Rekha is the daughter
\nof his friend. Rekha had gone to him with a notice saying that Mahendra
\nSharda had called him and, therefore, he had gone to Mahendra Sharda with
\nRekha. At that time Mahendra was not in his house. When Mahendra came
\nhe said to Mahendra that Rekha has come to your hour house, but Mahendra
\ndid not allow Rekha to enter the house. Mahendra said that he cannot keep
\nRekha with him. N.A.W-4 Fathelal Verma states that he had not seen any
\nmale person going to the house of Rekha and he resides in the same locality
\nwhere Rekha resides.\n<\/p>\n
16. From the above evidence it is manifest that on the one hand there
\nare allegations of desertion and cruelty, whereas on the other hand these facts
\nhave been denied and on the contrary it has been pleaded that, it is the husband
\nwho is not keeping the wife. Now, the learned Trial Court after appreciating
\nthe evidence has disbelieved the testimony of the witnesses of the appellant and
\nhas believed the testimony of the witnesses of the respondent and, therefore, it
\nhas held that a case of divorce is not made out. In view of the aforesaid
\nevidence one fact is undisputed that Smt. Rekha lived with her husband
\nafter the marriage only for 15 to 20 days and left the house in June, 1980. Since
\nthen there has been no cohabitation till the filing of the divorce petition.
\nEven after her transfer to Khargone although she resided in the same Mohalla
\nwhere the husband lived, but still they lived separately. It is also admitted
\nthat the money order coupen. Ex. P. 2 was written by the sister of Rekha
\nwherein the sender’s name has been written as Rekha Sharma widow of
\nMahendra Sharda. There is no dent in the statement of Jagdish (P.W. 5)
\nwhen he says that a scence was created by Rekha in the shop and she had said
\nthat the coconut is the prasad of her being a widow.\n<\/p>\n
17. Similarly as regards the school incident the testimony of Mahendra
\nstands corroborated by the statement of P.W. 1 Gendalal and the statement of
\nRekha partially admitting of going to school does not falsify the aforesaid
\nstatements of P.W. 1 Gendalal and that of the appellant. The statement of
\nappellant Mahendra supported by the statement of Balkrishna in respect of
\nbreaking the earthen water container and hurling chappal at Mahendra cannot
\nbe brushed aside being false and without any foundation. P.W. 4 Mahesh kumar has also corroborated the statement of the, appellant in respect of
\nbreaking of bangles and throwing the mangal sutra.\n<\/p>\n
18. The lower Court has rejected the evidence of the witnesses of the
\nappellant holding them as interested witnesses. About the school incident
\nthe evidence has been disbelieved because the Principal has not been examined.
\nAccording to the lower Court the appellant has not been able to establish the
\ncase of cruelty to the hilt. However, the lower Court has not taken into consideration the money order coupen whereas the testimony of the witnesses
\nabout the willingness of Rekha to live with her husband has been believed.\n<\/p>\n
19. Now as regards desertion the Court of England in Pardy v. Pardy,
\n[(1939) 3 All E.R. 779] has held that animus deserendi has to be gathered from
\nthe facts of each case and the case should be viewed from angle whether there
\nis a bonafide willingness to live in cohabitation. Whether these conditions
\nexist during the relevant period is a question of fact in each and inference can
\nbe drawn from the words and conduct of the parties.\n<\/p>\n
20. The Supreme Court in the case of Dr. N.G. Dastane v. Mrs
\nS. Dastane, (AIR<\/a> 1975 SC, 1534) has held that when a petitioner alleges
\ncruelty such a charge has not to be established beyond reasonable doubt. The
\nbelief 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
\nvarious probabilities he finds that the preponderance is in favour of the existence
\nof the particular fact. As a prudent man, so the Court applies this test for
\nfinding whether a fact in issue can be said to be proved. The first step in this
\nprocess is to fix the probabilities, the second to weigh them, though the two
\nmay often intermingle. The impossible is weeded out at the first stage,
\nthe improbable at the second. Neither Section 10 nor Section 23 of the Hindu
\nMarriage Act envisages that the petitioner must prove his case beyond
\nreasonable doubt Section 23 confers on the Court the power to pass a decree if
\nit is satisfied on matters mentioned in Clauses (a) to (e) of the Section and the
\nword ‘satisfied’ in Section 23 should be construed to mean satisfied on a preponderance of probabilities and not satisfied beyond reasonable doubt. Section 23 does
\nnot alter the standard of proof in civil cases. In the same judgment the
\nSupreme Court has held that cruelty would include harm or injury to health
\nreputation, working career or the like. It is not necessary that the cruelty
\nmust be of such a character as to cause danger to life, limb or health as to
\ngive rise to a reasonable apprehension of such a danger. Therefore what the
\nCourts must determine is not whether the petitioner has proved the charge of
\ncruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has treated him with such cruelty as to
\ncause a resasonable apprehension in his mind that it will be harmful or
\ninjurious for him to live with the respondent.\n<\/p>\n
21. A Full Bench of the Bombay High Court in Dr. Keshaorao
\nKrishnaji Londhe v. Mrs. Nisfia Londhe has held that the cruelty contemplated
\nUnder Section 13(1)(i-a) of the Act neither attracts old English doctrine of danger
\nnor the statutory limits embodied in old Section 10(l)(b) of the Hindu Marriage
\nAct. The cruelty contemplated is a conduct of such type that the petitioner
\ncannot reasonably be expected to live with the respondent. The conscience
\nof the Court should be satisfied to believe that the relations between the parties
\nhad deteriorated to such an extent due to the conduct of one of the spouses
\nthat it has become impossible for them to live together without mental agony,
\ntorture or distress. The cruelty admits within its ambit acts that might even
\ncause mental agony.\n<\/p>\n
22. Now, the evidence in the present case has to be examined in the
\nlight of the aforesaid principle and then it has to be held whether the evidence
\nled by the appellant is such which may lead a prudent and reasonable man to
\nhold it probable. The appellant and the respondents are teachers. They were
\nmarried over a decade back. Out of this matrimonial relationship they lived
\nas husband and wife only for 20 to 25 days. Thereafter it is a story of
\nquarrels, disputes and without any attempt of reconciliation on the part of the
\nparties or the guardians and relatives who have examined themselves as witnesses. It is undisputed that the mother of the appellant was suffering with cancer
\nand the wife got the husband transferred from his paternal home to the place
\nwhere she was living which the appellant recented very much because his
\nmother was suffering with cancer and he did not want to leave his mother alone
\nin such an ailment. The explanation which has come from the wife is that at
\nSanawad the husband and wife can live peacefully and the mother could also
\nbe 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
\nsociety when a wife declares herself as a widow or behaves like one, it is
\ntreated as a very bad Omen and it is believed that such a woman wants the
\ndeath of her husband. It is highly probable that the sister of the wife sent
\na money-order in the coupen of which she mentioned the senders name as
\nRekha Sharma widow of Mahendra Sharda. In the sentimental society such
\na thing is highly offending.\n<\/p>\n
Similarly if the mangal sutra is thrown and the coconut is broken that
\nis also treated as bad Omen. Hurling abuses or causing humiliation to a
\nhusband by the wife is also not viewed with approval in the present day
\nsociety.\n<\/p>\n
23. Now the main question which has also to be considered for
\nappreciating the evidence and conduct of the parties is as to why after 15 or 20
\ndays of the Marriage this separation took place without any reconciliation for
\nover a decade. It is not a case of the wife that the husband wanted dowry or
\nhe has relation with some other woman which had caused him to keep the
\nwife away. The marriage are performed they are not for a period of few
\ndays; but it is a life-long tie. But unfortunately nothing has come on record
\nto show that there was any ultarior motive on the part of the husband to keep
\nhis wife away. On the contrary, it appears, that the problem has started on
\nthe point whether the husband should live with his wife at Sanawad or continue
\nto live with his family. It is true that the wife being a Government servant
\nhad to attend to her duties but when the mother-in-law was suffering with a
\ndeadly ailment like Cancer she could always take some leave and go back to her
\nin-laws to serve the mother and be with the family. But it appears that the
\ninitial attitude of the wife put a scar on the matrimonial relationship and thereafter the problems started which were aggravated when the wife got the
\nhusband transferred to Sanawad and thereafter the money-order receipt, throwing the mangal sutra, humiliation all followed. The relation instead of
\nimproving deteriorated day-by-day to such an extent that living in the same
\ncity and in the same mohalla the husband and wife could not live together.
\nIn such circumstances the inescapable conclusion is that the allegations made
\nby the husband in respect of the behaviour of the wife and humiliation is highly
\nprobable 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
\nsufficiently be proved while assessing the evidence of the petitioner is erroneous
\nand not based on the principle of appreciation of evidence on the anvil of
\npreponderance of probabilities to a prudent man. In view of the aforesaid
\ndiscussion I am of the view that the charge of cruelty is proved against the
\nrespondent.\n<\/p>\n
24. However, as regards the desertion, the evidence shows that at a
\nlater part of the time in reply to the notice the respondent did approach the
\nappellant for living with him and it has not been proved that her intention
\nwas to desert her husband for ever. On the contrary appears that her main
\nintention was that the husband instead of living with his family should live
\nwith her. As such the charge of desertion cannot be held to be proved.\n<\/p>\n
25. In the result it held that the appellant, has been able to prove
\nthe factum of cruelty and as such the ground Under Section 13(1) (i-a) of the Act
\nis proved, but the appellant has failed to prove the charge Under Section 13(l)(ib).
\nAs such the petitioner is entitled to get a decree of divorce under the provisions
\ncontained in Section 13(l)(ib) of the Hindu Marriage Act. I am also satisfied that
\nthe husband is not in any way taking advantage of his own wrong or disability
\nfor getting the relief and there is no collusion between the parties and there is
\nno legal impediment in granting the relief including that of laches. Consequently the appeal of the appellant is allowed. The decree passed by the lower
\nCourt dismissing the divorce petition of the appellant is set aside instead a
\ndecree of divorce is granted in favour of the petitioner-appellant against the
\nrespondent for divorce Under Section 13(l)(ib) of the Hindu Marriage Act.
\nIn the facts and circumstances of the case there shall be no order as to
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madhya Pradesh High Court Mahendra Sharda vs Rekha on 18 March, 1992 Equivalent citations: II (1992) DMC 320 Author: A Qureshi Bench: A Qureshi 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) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,24],"tags":[],"class_list":["post-123434","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"\nMahendra Sharda vs Rekha on 18 March, 1992 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mahendra-sharda-vs-rekha-on-18-march-1992\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mahendra Sharda vs Rekha on 18 March, 1992 - 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