VERY IMPORTANT POINT
As appellant is taking advantage of her own wrong so in the circumstances she cannot invoke jurisdiction of Apex Court under Article 142 of Constitution alleging dissolution of a dead marriage . Reformation of matrimonial law suggested on period of limitation to file first appeal.

Headnote:(i) Hindu Marriage Act, 1955-Section 13(1)(ia)-Cruelty as a ground of divorce-Definitions of cruelty for matrimonial law.
       Held : Treating the petitioner with cruelty is a ground for divorce under Section 13 (1)(ia) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. (Para 6)
       (ii) Constitution of India-Article 136-Appeal against decision of High Court upholding Family Court s finding that there is no evidence on cruelty-Whether can be disturbed in law or on facts? (No).
       Held : In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly shows that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life. (Para 6)
       (iii) Hindu Marriage Act, 1955-Sections 13(1)(ib), 13B and 23(1)-Desertion as a ground of divorce-No issue framed-But decree of divorce granted on desertion by Family Court and High Court set it aside in appeal-Evidence led by parties despite no issue - Meaning of desertion-Essential and proof-Whether attracted in the case? (No, appellant taking advantage of her own wrong)-Case law discussed on divorce by mutual consent and irretrievable break down of marriage is not a ground of divorce-(Constitution of India-Art. 142). (Paras 14 to 18)
       Held : As already held, the appellant herself is trying to take advantage of her own wrong and in the circumstances of the case, the marriage between the parties cannot be held to have become dead for invoking the jurisdiction of this Court under Article 142 of the Constitution for dissolving the marriage. (Para 19)
       (iv) Reformation in Matrimonial Law-Provision of irretrievable breakdown of marriage as a ground of divorce-Increasing period of limitation to file appeal u/s. 28(4). (Paras 18 & 20)

JUDGMENT

Sethi, J.-Alleging cruelty and desertion against the husband, the appellant-wife approached the Matrimonial Court under Section 13 of the Hindu Marriage Act (hereinafter referred to as "the Act") praying for dissolution of her marriage with the respondent by a decree of divorce. She also prayed for direction to the respondent to return her ornaments given to him at the time of marriage. The Family Judge allowed the petition and dissolved the marriage of the parties on the ground of desertion by the husband. The appellant was also granted a decree of Rs. 12,000./- towards the price of the scooter, allegedly given at the time of the marriage and payment of Rs.500/- per month as permanent alimony. Both the husband and the wife preferred appeals against the order of the Family Court as the wife was not satisfied with the part of the order refusing to grant a decree in her favour in respect of properties claimed by her and the husband was aggrieved by the order of dissolution of the marriage by a decree of divorce. Both the appeals were disposed of by the impugned order holding that the appellant-wife herself was a defaulting party and neither the allegations of cruelty nor of desertion were proved. The order passed under Section 27 of the Hindu Marriage Act and for permanent alimony was also set aside. The grievance of the appellant-wife is that the High Court was not justified in setting aside the findings of fact arrived at by the Family Court and that she had proved the existence of cruelty and desertion against the respondent. It is contended that as the appellant-wife was proved to have been living separately, it was to be presumed that the respondent had deserted her.

2. The facts of the case giving rise to the filing of the present appeals are that marriage between the parties was solemnised on 6.5.1987. The appellant-wife lived with the respondent-husband till 21st June, 1987 and according to her the marriage between the parties was never consummated. After 21st June, 1987 the parties started living separately. The appellant alleged that her parents spent more than Rs. 80,000/- with respect to the ceremonies of the marriage and also gave several articles in the form of ornaments, valuables, cash and kind as per demand of the respondent. The respondent and his family members allegedly made further demands of Colour TV, Refrigerator and some other ornaments besides hard cash of Rs. 10,000/-. The father of the appellant obliged the respondent by giving him Rs. 10,000/- in the first week of June, 1987 but could not fulfil the other demands of his parents. The respondent and his family members were alleged to have started torturing the appellants on false pretexts. Aggrieved by the attitude of the respondent and his family members, the appellant states to have filed a petition under Section 13 of the Act seeking dissolution of marriage by a decree of divorce along with prayer for the return of the property and grant of permanent alimony. The respondent also filed a petition seeking divorce and grant of other reliefs. However, on 14.5.1996 the respondent filed an application for withdrawal of his matrimonial case which was allowed on 19.5.1996. The appellant had alleged that the respondent was having illicit relations with a lady residing in Gaya at Bihar with whom he was stated to have solemnised the marriage. The allegations made in the petition were denied by the respondent and it was stated that in fact the appellant-wife was taking advantage of her own wrongs.

3. On the basis of the pleadings of the parties, the following issues were framed:

"1. Whether the defendant has treated the petitioner with cruelty? If so, its effect?

2. Whether the petitioner is entitled to relief under Section 27 of the Hindu Marriage Act? If so, its effect?

3. Whether the defendant is entitled to any relief? If so, its effect?

4. To what relie

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2002 Supreme(SC) 19

Cases Referred (8)