Back
SUPREME COURT OF INDIA
K.S. HEGDE AND A.N. GROVER, JJ.
Smt. Rohini Kumari, Appellant
Versus
Narendra Singh, Respondent.
Civil Appeal No. 35 of 1971, D/- 2-12-1971.
Advocates appeared
M/s. S. K. Gambhir and S. K. Dhingra, Advocates, for Appellant: Mr. C. K. Daphtary, Sr. Advocate, (M/s. J. B. Dadachanji and S. S. Shukla, Advocates, with him), for Respondent.
Hindu Marriage Act 1955 - Section 10 (1) (a), 10, 9, 18 (2), 18 (2) (g) - Hindu Married Women s right to Separate Residence and Maintenance Act 1946 - Hindu Adoptions and Maintenance Act 1956 - Hindu Adoptions and Maintenance Act 1956 – Section 18 (2) (d) - Husband - Wife - Decree for Judicial Separation - Whether during statutory period of two years in terms of S. 10 (1) (a) husband had, by word or conduct, provided a just cause to his wife to desist from making any attempt at reconciliation or resuming cohabitation - Whether provisions of section 18 (2) of Maintenance Act can affect matters provided for by section 10 of Act – Held, It is well known that when a particular branch of law is codified it is intended and the object essentially is that on any matter specifically dealt with by that law it should be sought for in codified enactment alone when any question arises relating to that matter - Ordinarily when it has been expressly stated that an enactment is meant for codifying law court is not at liberty to look to any other law - Act not only amends but also codified law of marriage and it has made fundamental and material changes in prior law - Section 4 of Act gives overriding effect to its provisions - Section 18 (2) provides inter alia, that Hindu wife shall be entitled to live separately form her husband without forfeiting her claim to maintenance if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish or of willfully neglecting her or if he has any other wife living - Indeed last clause (g) of S. 18 (2) is very general i.e. if there is any other cause justifying her living separately - Section 10 of Act and S. 18 of Maintenance Act are quite distinct and one cannot be said to control other - Former provision deals with matrimonial offences by either spouse which would justify grant of a decree for judicial separation - Section 18 provides for grant of maintenance to wife alone - It is significant that under S. 13 (2) of Act a wife may present a petition for dissolution of marriage by a decree of divorce on ground that husband had married again before commencement of Act or that any other wife of husband married before such commencement was alive at the time of solemnization of marriage of petitioner - But this can be done only if marriage with petitioner was also solemnized before commencement of Act - It is quite obvious that S. 18 of Maintenance Act does not amend or abrogate provisions of S. 10 of Act which alone must be looked at for purpose of disposing of appeal before - Appeal dismissed.
Judgment
GROVER, J.:- This is an appeal from the judgement of the Allahabad High Court wherein special leave was granted limited to the question of law as to the interpretation of S. 10 (1) (a)read with the Explanation of the Hindu Marriage Act 1955, hereinafter called the Act .
2. The undisputed facts are that the parties got married in 1945 and in February 1947 the wife went to Alirajpur her parental home. She never returned thereafter. In 1953 the husband, who was a member of the Indian Foreign Service met a Dutch lady - Countess Rita - while he was posted abroad. He married her only a day before the Act came into force. In August 1955 the husband filed a petition in the court of a Munsif for judicial separation under S.10 of the Act on the ground of the wife s descretion. An ex parte degree was passed against the wife which was later on set aside. The wife also raised an objection that the Munsif had no jurisdiction to grant the decree. That objection was accepted and the plaint was returned for being presented to the proper court. In 1959 the husband divorced Countess Rita. The Trial court delivered its judgement in July 1964 allowing the husband s petition for judicial separation and granting a decree for that relief. The matter was taken in appeal to the first appellate court which affirmed the decision of the trial court. A second appeal was filed to the High Court by the wife which was heard by a learned single judge but he referred the same to a division bench. The division bench dismissed the appeal but directed the husband to pay Rs. 150/- per month to the wife by way of maintenance.
3. The concurrent findings of the trial court and the first appellate court which were not questioned before the High Court were these:
(1) During her stay at Sarela (husband s home) the wife was provided with decent accommodation, wholesome food and all such amenities which were available at Sarela.
(2) It was wrong that she was given inhuman treatment at Sarela during her stay there and that she had developed heart trouble as a result of it as alleged by the wife.
(3) The wife had left Sarela for her parental home (Alirajpur) with the intention of permanently giving up her marital relation with the husband and not to return to Sarela or to her husband .
(4) The wife left her matrimonial home without any reasonable cause and without the consent of the husband and with the intention of bringing cohabitation to an end.
(5) The marriage of the husband with Countess Rita did not have any such impact on the mind of the wife that it caused her to continue to live apart and to continue the desertion.
4. Under Section 10 (1) (a) a decree for judicial separation can be granted on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. According to the Explanation the expression "desertion" with its grammatical variation and cognate expression means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage. The argument raised on behalf of the wife is that the husband had contracted a second marriage on May 17, 1955. The petition for judicial separation was filed on August 8, 1955 under the Act which came into force on May 18, 1955. The burden under the section was on the husband to establish that the wife had deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition. In the presence of the Explanation it could not be said on the date on which the petition was filed that the wife had deserted the husband without reasonable cause because the latter had married Countess Rita and that must be regarded as a reasonable cause for her staying away from him. Our attention has been invited to the statement in Rayden
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
