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2002(1) Supreme 123
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
D.P. Mohapatra and K.G. Balakrishnan, JJ.
G.V.N. Kameswara Rao -Appellant
versus
G. Jabilli -Respondent
Civil Appeal No. 140 of 2002
(Arising out of SLP (C) No. 1417 of 2000)
Decided on 10-1-2002
Counsel for the Parties :
For the Appellant : L. Nageswara Rao, Sr. Advocate and S. Udaya Kumar Sagar, Advocate.
For the Respondent : M.N. Rao, Sr. Advocate, Annam D.N. Rao, Advocate.
Held : The omission of the words, which described cruelty in the unamended Section 10 of the Hindu Marriage Act, has some significance in the sense that it is not necessary to prove that the nature of the cruelty is such as to cause reasonable apprehension in the mind of the petitioner that it would be harmful for the petitioner to live with the other party. English Courts in some of the earlier decisions had attempted to define "cruelty" as an act which involves conduct of such a nature as to have caused damage to life, limb or health or to give rise to reasonable apprehension of such danger. But we do not think that such a degree of cruelty is required to be proved by the petitioner for obtaining a decree for divorce. Cruelty can be said to be an act committed with the intention to cause sufferings to the opposite party. Austerity of temper, rudeness of language, occasional outburst of anger, may not amount to cruelty, though it may amount to misconduct. (Para 10)
(ii) Hindu Marriage Act, 1955-Section 13(1)(ia) r/w 23(1)(a)-Husband seeking divorce on ground of wife s mental cruelty-Granted by Family Court but reversed by High Court-Appellant proving that the attitude of the respondent was not cordial and co-operative-The police complaint caused loss of reputation and prestige in the society-The marriage life started in 1979 with many ups and down-No conjugal relationship since 1985-Prior thereto respondent was not discharging her marital obligations properly-High Court denying relief on ground that appellant was taking advantage of his own wrongs whether proper-(No)-Result-Appeal allowed-Divorce granted. (Para 16)
Held : The High Court has held in the impugned judgment that the appellant himself was responsible for many of the unhappy incidents and therefore, he shall not be allowed to take advantage of his own fault and the decree for dissolution of marriage shall be denied to him in view of Section 23(1)(a) of the Hindu Marriage Act. We do not think that the High Court was justified in holding this view. The decision was based on the fact that the appellant had executed a power of attorney in favour of his brother-in-law, Rama Rao, authorizing him to take steps for seeking divorce in the year 1982. The appellant admitted having executed that power of attorney. According to the appellant, the respondent, after she came to India in 1982, refused to come back to United States even after much persuasion and under those circumstances, he executed the power of attorney, but later on came to know that power of attorney holder could not file an application. That would only show that right from 1982, the relationship between the appellant and the respondent was not good and the parties thought of divorce. But the appellant did not file any application in 1982. As regards the incident relating to police complaint also, in his statement the appellant had admitted that the respondent had a scratch injury. But there is nothing in the evidence to show that either the appellant or his mother caused any serious injury to the respondent. We do not think that this is a case, where the appellant could be denied relief by invoking Section 23(1)(a) of the Hindu Marriage Act. On the other hand, various incidents brought out in the evidence would show that the relationship between the parties was irretrievably broken, and because of the non-cooperation and the hostile attitude of the respondent, the appellant was subjected to serious traumatic experience which can safely be termed as cruelty coming within the purview of Section 13(1)(ia) of the Hindu Marriage Act. Therefore, we hold that the appellant is entitled to the decree for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act. However, we make it clear that any order of maintenance passed in favour of the respondent will stand unaffected by this decree for dissolution of the marriage. We also make it clear that if any rights have been accrued to the respondent in the joint assets of both, she would be at liberty to take appropriate action to enforce such rights. The appeal is allowed. Parties to bear their respective costs. (Paras 17 and 18)
JUDGMENT
K.G. Balakrishnan, J.-Leave granted.
2. The husband who had been unsuccessfully fighting litigation for the post more than 15 years for snapping his marital ties with the respondent wife is the appellant before us. The appellant is double doctorate holder-one in Mathematics from Andhra University and another from U.S.A., and had been working in United States during the relevant period. The respondent is a post-graduate in Home Science and was working as a lecturer in the year 1979. The appellant came to India in 1979 and gave advertisement in the newspaper seeking matrimonial alliance from a suitable bride. The relatives of the respondent responded to the advertisement and there was mutual consultation between the parties, which led to the marriage of the appellant with the respondent on 30.7.1979. After the marriage, the appellant and respondent stayed together for some period and thereafter, the appellant left India for United States. The respondent was asked to join him after having obtained the visa and completing other formalities. The respondent, after a period of six months, joined the appellant in United States. It appears that the marital life of the appellant and the respondent ran into rough weather from the very beginning of their stay in United States. There used to be occasional quarrel between the parties. A daughter, Sandhya, was born to them on 10.6.1981. In 1982, the appellant, respondent and their daughter Sandhya came to India, but the appellant returned to United States in November 1982 itself and the respondent joined him only in April 1983. In January 1985, the respondent along with her daughter returned to India and it seems that the misunderstandings between the parties deepened and ultimately the appellant filed application for divorce under Section 13 of the Hindu Marriage Act, 1955 alleging that after the solemnization of their marriage, the respondent treated the appellant with cruelty.
3. The respondent contested the proceedings and denied all the allegations made by the appellant in the petition and also made counter-allegations alleging that the appellant was responsible for wrecking the marriage. Parties on either side examined witnesses to substantiate their allegations. The learned Family Court Judge after assessing the rival contentions and the evidence adduced by the parties, came to the conclusion that the respondent had treated the appellant with mental cruelty and, therefore, the appellant was entitled to get a decree for dissolution of marriage. This was challenged by the respondent before the Hon ble High Court of Andhra Pradesh and the Division Bench of the High Court reversed the decision of the Family Court holding that the appellant was at fault and he had been trying to take advantage of his own wrongs; hence, he was not entitled to get a decree in his favour in view of Section 23(1)(a) of the Hindu Marriage Act. The Judgment of the Division Bench is challenged before us.
4. We heard learned Senior Counsel for the appellant, Mr. L. Nageswara Rao and Mr. M.N. Rao, learned Counsel on behalf of the respondent. The learned senior Counsel for the appellant contended that there was complete breakdown of the marriage due to the attitude of the respondent and the appellant was under severe mental agony and that the various acts committed by the respondent amounted to mental cruelty and the High Court was not justified in reversing the finding of the Family Court. The learned Counsel for the respondent, on the other hand, contended that there were differences of opinion between the appellant and the respondent on many matters, but the respondent had not done anything to cause mental pain or agony to the appellant. It was argued that the Family Court Judge passed his decision based on a solitary incident and, therefore, the same had been rightly reversed by the High Court.
5. For proper appreciation of the disputes between the parties, it is necessary to consider the various allegations
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