{"id":272106,"date":"2002-01-08T00:00:00","date_gmt":"2002-01-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/savitri-pandey-vs-prem-chandra-pandey-on-8-january-2002"},"modified":"2015-08-30T01:28:44","modified_gmt":"2015-08-29T19:58:44","slug":"savitri-pandey-vs-prem-chandra-pandey-on-8-january-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/savitri-pandey-vs-prem-chandra-pandey-on-8-january-2002","title":{"rendered":"Savitri Pandey vs Prem Chandra Pandey on 8 January, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Savitri Pandey vs Prem Chandra Pandey on 8 January, 2002<\/div>\n
Author: Sethi<\/div>\n
Bench: R.P. Sethi, Y.K. Sabharwal<\/div>\n
           CASE NO.:\nAppeal (civil) 20-21  of  1999\n\n\n\nPETITIONER:\nSAVITRI PANDEY\n\n\tVs.\n\nRESPONDENT:\nPREM CHANDRA PANDEY\n\nDATE OF JUDGMENT:\t08\/01\/2002\n\nBENCH:\nR.P. Sethi & Y.K. Sabharwal\n\n\n\n\nJUDGMENT:\n<\/pre>\n
SETHI,J.\n<\/p>\n
Alleging cruelty and desertion against the husband, the appellant-
\nwife approached the Matrimonial Court under Section 13<\/a> of the Hindu
\nMarriage Act (hereinafter referred to as “the Act”) praying for
\ndissolution of her marriage with the respondent by a decree of divorce.
\nShe also prayed for direction to the respondent to return her ornaments
\ngiven to him at the time of marriage.  The Family Judge allowed the
\npetition and dissolved the marriage of the parties on the ground of
\ndesertion by the husband.  The appellant was also granted a decree of
\nRs.12,000\/- towards the price of the scooter, allegedly given at the
\ntime of the marriage and payment of Rs.500\/- per month as permanent
\nalimony.  Both the husband and the wife preferred appeals against the
\norder of the Family Court as the wife was not satisfied with the part of
\nthe order refusing to grant a decree in her favour in respect of
\nproperties claimed by her and the husband was aggrieved by the order of
\ndissolution of the marriage by a decree of divorce.  Both the appeals
\nwere disposed of by the impugned order holding that the appellant-wife
\nherself was a defaulting party and neither the allegations of cruelty
\nnor of desertion were proved.  The order passed under Section 27<\/a> of the
\nHindu Marriage Act and for permanent alimony was also set aside.  The
\ngrievance of the appellant-wife is that the High Court was not justified
\nin setting aside the findings of fact arrived at by the Family Court and
\nthat she had proved the existence of cruelty and desertion against the
\nrespondent.  It is contended that as the appellant-wife was proved to
\nhave been living separately, it was to be presumed that the respondent
\nhad deserted her.\n<\/p>\n
\tThe facts of the case giving rise to the filing of the present
\nappeals are that marriage between the parties was solemnised on
\n6.5.1987.  The appellant-wife lived with the respondent-husband till 21st
\nJune, 1987 and according to her\t the marriage between the parties was
\nnever consummated.  After 21st June, 1987 the parties started living
\nseparately.  The appellant alleged that her parents spent more than
\nRs.80,000\/- with respect to the ceremonies of the marriage and also gave
\nseveral articles in the form of ornaments, valuables, cash and kind as
\nper demand of the respondent.  The respondent and his family members
\nallegedly  made further demands of Colour TV, Refrigerator and some
\nother ornaments besides hard cash of Rs.10,000\/-. The father of the
\nappellant obliged the respondent by giving him Rs.10,000\/- in the first
\nweek of June, 1987 but could not fulfil the other demands of his
\nparents.  The respondent and his family members were alleged to have
\nstarted torturing the appellants on false pretexts.  Aggrieved by the
\nattitude of the respondent and his family members, the appellant states
\nto have filed a petition under Section 13<\/a> of the Act seeking dissolution
\nof marriage by a decree of divorce along with prayer for the return of
\nthe property and grant of permanent alimony.  The respondent also filed
\na petition seeking divorce and grant of other reliefs.\tHowever, on
\n14.5.1996 the respondent filed an application for withdrawal of his
\nmatrimonial case which was allowed on 19.5.1996.  The appellant had
\nalleged that the respondent was having illicit relations with a lady
\nresiding in Gaya at Bihar with whom he was stated to have solemnised the
\nmarriage.  The allegations made in the petition were denied by the
\nrespondent and it was stated that in fact the appellant-wife was taking
\nadvantage of her own wrongs.\n<\/p>\n
\tOn the basis of the pleadings of the parties, the following issues
\nwere framed:\n<\/p>\n
“1.\tWhether the defendant has treated the petitioner with
\ncruelty? If so, its effect?\n<\/p>\n
2.\tWhether the petitioner is entitled to relief under
\nSec.27 of the Hindu Marriage Act?  If so, its effect?\n<\/p>\n
3.\tWhether the defendant is entitled to any relief? If
\nso, its effect?\n<\/p>\n
4.\tTo what relief, parties are entitled?”\n<\/p>\n
It may be noticed that no issue with regard to alleged desertion
\nwas insisted to be framed.  With respect to the issue of cruelty, the
\nFamily Court concluded that no evidence had been led to prove the
\nallegations.  The Court, however, held: “but it is proved that the
\nrespondent had deserted the petitioner, hence the petitioner will get or
\nis entitled to for a decree of divorce”.  On appreciation of evidence
\nled in the case, the Division Bench of the High Court held:
\n“We also do not find any evidence that the wife has been
\ntreated with cruelty by the husband.  We are also of the
\nview that there is no evidence that petitioner is deserted.”\n<\/p>\n
\tWe have heard the learned counsel for the parties and perused the
\nrecord.\n<\/p>\n
\tTreating the petitioner with cruelty is a ground for divorce under
\nSection 13(1)(ia)<\/a> of the Act.  Cruelty has not been defined under the
\nAct but in relation to matrimonial matters it is contemplated as a
\nconduct of such type which endangers the living of the petitioner with
\nthe respondent.\t Cruelty consists of acts which are dangerous to life,
\nlimb or health.\t Cruelty for the purpose of the Act means where one
\nspouse has so treated the other and manifested such feelings towards her
\nor him as to have inflicted bodily injury, or to have caused reasonable
\napprehension of bodily injury, suffering or to have injured health.
\nCruelty may be physical or mental.  Mental cruelty is the conduct of
\nother spouse which causes mental suffering or fear to the matrimonial
\nlife of the other.  “Cruelty”, therefore, postulates a treatment of the
\npetitioner with such cruelty as to cause a reasonable apprehension in
\nhis or her mind that it would be harmful or injurious for the petitioner
\nto live with the other party.  Cruelty, however, has to be distinguished
\nfrom the ordinary wear and tear of family life.\t It cannot be decided on
\nthe basis of the sensitivity of the petitioner and has to be adjudged on
\nthe basis of the course of conduct which would, in general, be dangerous
\nfor a spouse to live with the other.  In the instant case both the trial
\ncourt as well as the High Court have found on facts that the wife had
\nfailed to prove the allegations of cruelty attributed to the respondent.
\nConcurrent findings of fact arrived at by the courts cannot be disturbed
\nby this Court in exercise of powers under Article 136<\/a> of the
\nConstitution of India.\tOtherwise also the averments made in the
\npetition and the evidence led in support thereof clearly shows that the
\nallegations, even if held to have been proved, would only show the
\nsensitivity of the appellant with respect to the conduct of the
\nrespondent which cannot be termed more than ordinary wear and tear of
\nthe family life.\n<\/p>\n
\tNo decree of divorce could be granted on the ground of desertion
\nin the absence of pleading and proof.  Learned counsel for the appellant
\nsubmitted that even in the absence of specific issue, the parties had
\nled evidence and there was sufficient material for the Family Court to
\nreturn a verdict of desertion having been proved.  In the light of the
\nsubmissions made by the learned counsel, we have opted to examine this
\naspect of the matter despite the fact that there was no specific issue
\nframed or insisted to be framed.\n<\/p>\n
\t“Desertion”, for the purpose of seeking divorce under the Act,
\nmeans the intentional permanent forsaking and abandonment of one spouse
\nby the other without that other’s consent and without reasonable cause.
\nIn other words it is a total repudiation of the obligations of marriage.
\nDesertion is not the withdrawal from a place but from a state of things.
\nDesertion, therefore, means withdrawing from the matrimonial
\nobligations, i.e., not permitting or allowing and facilitating the
\ncohabitation between the parties.  The proof of desertion has to be
\nconsidered by taking into consideration the concept of marriage which in
\nlaw legalises the sexual relationship between man and woman in the
\nsociety for the perpetuation of race, permitting lawful indulgence in
\npassion to prevent licentiousness and for procreation of children.
\nDesertion is not a single act complete in itself, it is a continuous
\ncourse of conduct to be determined under the facts and circumstances of
\neach case.  After referring to host of authorities and the views of
\nvarious authors, this Court in Bipinchandra Jaisinghbhai Shah v.
\nPrabhavati [AIR 1957 SC 176] held that if a spouse abandons the other in
\na state of temporary passions, for example, anger or disgust without
\nintending permanently to cease cohabitation, it will not amount to
\ndesertion.  It further held:\n<\/p>\n
“For the office of desertion, so far as the deserting spouse
\nis concerned, two essential conditions must be there, namely
\n(1) the factum of separation, and (2) the intention to bring
\ncohabitation permanently to an end (animus deserendi).
\nSimilarly two elements are essential so far as the deserted
\nspouse is concerned: (1) the absence of consent, and (2)
\nabsence of conduct giving reasonable cause to the spouse
\nleaving the matrimonial home to form the necessary intention
\naforesaid.  The petitioner for divorce bears the burden of
\nproving those elements in the two spouses respectively.
\nHere a different between the English law and the law as
\nenacted by the Bombay Legislature may be pointed out.
\nWhereas under the English law those essential conditions
\nmust continue throughout the course of the three years
\nimmediately preceding the institution of the suit for
\ndivorce, under the Act, the period is four years without
\nspecifying that it should immediately precede the
\ncommencement of proceedings for divorce.  Whether the
\nomission of the last clause has any practical result need
\nnot detain us, as it does not call for decision in the
\npresent case.  Desertion is a matter of inference to be
\ndrawn from the facts and circumstances of each case.  The
\ninference may be drawn from certain facts which may not in
\nanother case be capable of leading to the same inference;
\nthat is to say, the facts have to be viewed as to the
\npurpose which is revealed by those acts or by conduct and
\nexpression of intention, both anterior and subsequent to the
\nactual acts of separation.  If, in fact, there has been a
\nseparation, the essential question always is whether that
\nact could be attributable to an animus deserendi.  The
\noffence of desertion commences when the fact of separation
\nand the animus deserendi co-exist.  But it is not necessary
\nthat they should commence at the same time.  The de facto
\nseparation may have commenced without the necessary animus
\nort it may be that the separation and the animus deserendi
\ncoincide in point of time; for example, when the separating
\nspouse abandons the marital home with the intention, express
\nor implied, of bringing cohabitation permanently to a close.
\nThe law in England has prescribed a three years period and
\nthe Bombay Act prescribed a period of four years as a
\ncontinuous period during which the two elements must
\nsubsist.  Hence, if a deserting spouse takes advantage of
\nthe locus poenitentiae thus provided by law and decide to
\ncome back to the deserted spouse by a bona fide offer of
\nresuming the matrimonial home with all the implications of
\nmarital life, before the statutory period is out or even
\nafter the lapse of that period, unless proceedings for
\ndivorce have been commenced, desertion comes to an end and
\nif the deserted spouse unreasonably refuses to offer, the
\nlatter may be in desertion and not the former.\tHence it is
\nnecessary that during all the period that there has been a
\ndesertion, the deserted spouse must affirm the marriage and
\nbe ready and willing to resume married life on such
\nconditions as may be reasonable.  It is also well settled
\nthat in proceedings for divorce the plaintiff must prove the
\noffence of desertion, like and other matrimonial offence,
\nbeyond all reasonable doubt.  Hence, though corroboration is
\nnot required as an absolute rule of law the courts insist
\nupon corroborative evidence, unless its absence is accounted
\nfor to the satisfaction of the court.”\n<\/p>\n
\tFollowing the decision in Bipinchandra’s case (supra) this Court
\nagain reiterated the legal position in Lachman Utamchand Kirpalani v.
\nMeena<\/a> alias Mota [AIR 1964 SC 40] by holding that in its essence
\ndesertion means the intentional permanent forsaking and abandonment of
\none spouse by the other without that other’s consent, and without
\nreasonable cause.  For the offence of desertion so far as deserting
\nspouse is concerned, two essential conditions must be there (1) the
\nfactum of separation and (2) the intention to bring cohabitation
\npermanently to an end (animus deserendi).  Similarly two elements are
\nessential so far as the deserted spouse is concerned: (1) the absence of
\nconsent, and (2) absence of conduct giving reasonable cause to the
\nspouse leaving the matrimonial home to form the necessary intention
\naforesaid.  For holding desertion proved the inference may be drawn from
\ncertain facts which may not in another case be capable of leading to the
\nsame inference; that is to say the facts have to be viewed as to the
\npurpose which is revealed by those acts or by conduct and expression of
\nintention, both anterior and subsequent to the actual acts of
\nseparation.\n<\/p>\n
\tTo prove desertion in matrimonial matter it is not always
\nnecessary that one of the spouse should have left the company of the
\nother as desertion could be proved while living under the same roof.
\nDesertion cannot be equated with separate living by the parties to the
\nmarriage.  Desertion may also be constructive  which can be inferred
\nfrom the attending circumstances.  It has always to be kept in mind that
\nthe question of desertion is a matter of inference to be drawn from the
\nfacts and circumstances of each case.\n<\/p>\n
\tThere is another aspect of the matter which disentitles the
\nappellant from seeking the relief of divorce on the ground of desertion
\nin this case.  As desertion in matrimonial cases means the withdrawal of
\none party from a state of things, i.e., a marital status of the party,
\nno party to the marriage can be permitted to allege desertion unless he
\nor she admits that after the formal ceremonies of the marriage, the
\nparties had recognised and discharged the common obligation of the
\nmarried life which essentially requires the cohabitation between the
\nparties for the purpose of consummating the marriage.  Cohabitation by
\nthe parties is an essential of a valid marriage as the object of the
\nmarriage is to further the perpetuation of the race by permitting lawful
\nindulgence in passions for procreation of children.  In other words,
\nthere can be no desertion without previous cohabitation by the parties.
\nThe basis for this theory is built upon the recognised position of law
\nin matrimonial matters that no-one can desert who does not actively or
\nwilfully bring to an end the existing state of cohabitation.  However,
\nsuch a rule is subject to just exceptions which may be found in a case
\non the ground of mental or physical incapacity or other peculiar
\ncircumstances of the case.  However, the party seeking divorce on the
\nground of desertion is required to show that he or she was not taking
\nthe advantage of his or her own wrong.\n<\/p>\n
\tIn the instant case the appellant herself pleaded that there had
\nnot been cohabitation between the parties after the marriage.  She
\nneither assigned any reason nor attributed the non-resumption of
\ncohabitation to the respondent.\t From the pleadings and evidence led in
\nthe case, it is apparent that the appellant did not permit the
\nrespondent to have cohabitation for consummating the marriage.\tIn the
\nabsence of cohabitation between the parties, a particular state of
\nmatrimonial position was never permitted by the appellant to come into
\nexistence.  In the present case, in the absence of cohabitation and
\nconsummation of marriage, the appellant was disentitled to claim divorce
\non the ground of desertion.\n<\/p>\n
\tNo evidence was led by the appellant to show that she was forced
\nto leave the company of the respondent or that she was thrown away from
\nthe matrimonial home or that she was forced to live separately and that
\nthe respondent had intended animus deserendi.  There is nothing on
\nrecord to hold that the respondent had ever declared to bring the
\nmarriage to an end or refuses to have cohabitation with the appellant.
\nAs a mater of fact the appellant is proved to have abandoned the
\nmatrimonial home and declined to cohabit with the respondent thus
\nforbearing to perform the matrimonial obligation.\n<\/p>\n
\tIn any proceedings under the Act whether defended or not the court
\nwould decline to grant relief to the petitioner if it is found that the
\npetitioner was taking advantage of his or her own wrong or disability
\nfor the purposes of the reliefs contemplated under Section 23(1)<\/a> of the
\nAct.  No party can be permitted to carve out the ground for destroying
\nthe family which is the basic unit of the society.  The foundation of
\nthe family rests on the institution of a legal and valid marriage.
\nApproach of the court should be to preserve the matrimonial home and be
\nreluctant to dissolve the marriage on the asking of one of the parties.\n<\/p>\n
\tFor upholding the judgment and decree of the Family Court, Shri
\nDinesh Kumar Garg, the learned counsel appearing for the appellant
\nsubmitted that as after the decree of divorce the appellant had
\nremarried with one Sudhakar Pandey and out of the second marriage a
\nchild is also stated to have been born,\t it would be in the interest of
\njustice and the parties that the marriage between them is dissolved by a
\ndecree of divorce.  In support of his contention he has relied upon
\njudgments of this Court in Anita Sabharwal v. Anil Sabharwal [1997 (11)
\nSCC 490], Shashi Garg (Smt.) v. Arun Garg<\/a>[1997 (7) SCC 565], Ashok Hurra
\nv. Rupa Bipin Zaveri<\/a> [1997 (4) SCC 226] and Madhuri Mehta v. Meet Verma<\/a>
\n[1997 (11) SCC 81].\n<\/p>\n
\tTo appreciate such a submission some facts have to be noticed and
\nthe interests of public and society  to be borne in mind.  It appears
\nthat the marriage between the parties was dissolved by a decree of
\ndivorce vide the judgment and decree of the Family Court dated 8.7.1996.
\nThe respondent-husband filed appeal against the judgment and decree on
\n19.1.1997.  As no stay was granted, the appellant solemnised the second
\nmarriage on 29.5.1997, admittedly, during the pendency of the appeal
\nbefore the High Court.\tThere is no denial of the fact that right of at
\nleast one appeal is a recognised right under all systems of civilised
\nlegal jurisprudence.  If despite the pendency of the appeal, the
\nappellant chose to solemnise the second marriage, the adventure is
\ndeemed to have been undertaken at her own risk and the ultimate
\nconsequences arising of the judgment in the appeal pending in the High
\nCourt.\tNo person can be permitted to flout the course of justice by his
\nor her overt and covert acts.  The facts of the cases relied upon by the
\nlearned counsel for the appellant are distinct having no proximity with
\nthe facts of the present case. In all the cases relied upon by the
\nappellant and referred to hereinabove, the marriage between the parties
\nwas dissolved by a decree of divorce by mutual consent in terms of
\napplication under Section 13B<\/a> of the Act.  This Court while allowing the
\napplications filed under Section 13B<\/a> took into consideration the
\ncircumstances of each case and granted the relief on the basis of
\ncompromise.  Almost in all cases the other side was duly compensated by
\nthe grant of lumpsum amount and permanent provision regarding
\nmaintenance.\n<\/p>\n
\tThis Court in Ms.Jorden Diengdeh v. S.S. Chopra<\/a> [AIR 1985 SC 935]
\nsuggested for a complete reform of law of marriage and to make\ta
\nuniform law applicable to all people irrespective of religion or caste.
\nThe Court observed:\n<\/p>\n
“It appears to be necessary to introduce irretrievable
\nbreakdown of marriage and mutual consent as grounds of
\ndivorce in all cases. …. There is no point or purpose to
\nbe served by the continuance of a marriage which has so
\ncompletely and signally broken down.  We suggest that the
\ntime has come for the intervention of legislature in these
\nmatters to provide for a uniform code of marriage and
\ndivorce and to provide by law for a way out of the unhappy
\nsituation in which couples like the present have found
\nthemselves.\n<\/p>\n
\tMarriage between the parties cannot be dissolved only on the
\naverments made by one of the parties that as the marriage between them
\nhas broken down, no useful purpose would be served to keep it alive.
\nThe legislature, in its wisdom, despite observation of this Court has
\nnot thought it proper to provide for dissolution of the marriage on such
\naverments.  There may be cases where, on facts, it is found that as the
\nmarriage has become dead on account of contributory acts of commission
\nand omission of the parties, no useful purpose would be served by
\nkeeping such marriage alive.  The sanctity of marriage cannot be left at
\nthe whims of one of the annoying spouses.  This Court in V. Bhagat v.
\nMrs.D.Bhagat<\/a> [AIR 1994 SC 710] held that irretrievable breakdown of the
\nmarriage is not a ground by itself to dissolve it.\n<\/p>\n
\tAs already held, the appellant herself is trying to take advantage
\nof her own wrong and in the circumstances of the case, the marriage
\nbetween the parties cannot be held to have become dead for invoking the
\njurisdiction of this Court under Article 142<\/a> of the Constitution for
\ndissolving the marriage.\n<\/p>\n
\tAt this stage we would like to observe that the period of
\nlimitation prescribed for filing the appeal under Section 28(4)<\/a> is
\napparently inadequate which facilitates the frustration of the marriages
\nby the unscrupulous litigant spouses.  In a vast country like ours, the
\npowers under the Act are generally exercisable by the District Court and
\nthe first appeal has to be filed in the High Court.  The distance, the
\ngeographical conditions, the financial position of the parties and the
\ntime required for filing a regular appeal, if kept in mind, would
\ncertainly show that the period of 30 days prescribed for filing the
\nappeal is insufficient and inadequate.\tIn the absence of appeal, the
\nother party can solemnise the marriage and attempt to frustrate the
\nappeal right of the other side as appears to have been done in the
\ninstant case.  We are of the opinion that a minimum period of 90 days
\nmay be prescribed for filing the appeal against any judgment and decree
\nunder the Act and any marriage solemnised during the aforesaid period be
\ndeemed to be void.  Appropriate legislation is required to be made in
\nthis regard.  We direct the Registry that the copy of this judgment  may
\nbe forwarded to the Ministry of Law & Justice for such action as it may
\ndeem fit to take in this behalf.\n<\/p>\n
\tThere is no merit in these appeals which are dismissed with costs
\nthroughout.\n<\/p>\n
\t\t\t\t\t\t…………………..J.\n<\/p>\n
\t\t\t\t\t\t\t(R.P. SETHI)<\/p>\n
\t\t\t\t\t\t…………………..J.\n<\/p>\n
\t\t\t\t\t\t\t(Y.K. SABHARWAL)
\nJanuary 8, 2002<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Savitri Pandey vs Prem Chandra Pandey on 8 January, 2002 Author: Sethi Bench: R.P. Sethi, Y.K. Sabharwal CASE NO.: Appeal (civil) 20-21 of 1999 PETITIONER: SAVITRI PANDEY Vs. RESPONDENT: PREM CHANDRA PANDEY DATE OF JUDGMENT: 08\/01\/2002 BENCH: R.P. Sethi & Y.K. Sabharwal JUDGMENT: SETHI,J. Alleging cruelty and desertion against the husband, […]<\/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":[30],"tags":[],"class_list":["post-272106","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSavitri Pandey vs Prem Chandra Pandey on 8 January, 2002 - 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\/savitri-pandey-vs-prem-chandra-pandey-on-8-january-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Savitri Pandey vs Prem Chandra Pandey on 8 January, 2002 - 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