Cruelty as a ground for divorce under section 13(1)(i-a) of the Hindu Marriage Act, 1955, does not attract the old English Doctrine of danger nor the statutory limits embodied in old section 10(1)(b). The cruelty contemplated is a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent.

Headnote:
HINDU MARRIAGE ACT - SECTION 13(1)(I-A) - CRUELTY AS GROUND FOR DIVORCE - INTERPRETATION - FULL BENCH REFERENCE - MADANLAL SHARMA V. SMT. SANTOSH SHARMA OVERRULED - LIBERALIZATION OF DIVORCE LAW - INTENTION OF THE LEGISLATURE - STATEMENT OF OBJECTS AND REASONS - LAW COMMISSION REPORT - ENGLISH LAW - DOCTRINE OF DANGER - IRRETRIEVABLE BREAKDOWN OF MARRIAGE - REASONABLE EXPECTATION OF LIVING TOGETHER - SOCIAL FACTORS - PRECEDENTS - CONCLUSION.
Fact of the Case:

Appellant Dr. K.K. Londhe filed a petition for judicial separation under old section 10(1)(b) of the Hindu Marriage Act, 1955, on the ground of cruelty. The respondent, Mrs. Nisha Londhe, denied the allegations of cruelty. The trial court dismissed the petition, holding that the appellant had failed to prove cruelty as contemplated under old section 10(1)(b). The appellant filed a second appeal, which was pending when the Marriage Laws (Amendment) Act 1976 (Act No. 68 of 1976) was passed. The appellant sought an opportunity to amend the pleadings to claim relief of divorce under the new provision, section 13(1)(i-a), which was allowed. The issue before the Full Bench was whether cruelty as a ground for divorce under section 13(1)(i-a) meant cruelty as understood under the old English concept of doctrine of danger or whether it had a broader meaning.
Finding of the Court:

The Full Bench held that cruelty as a ground for divorce under section 13(1)(i-a) of the Hindu Marriage Act, 1955, did not attract the old English Doctrine of danger nor the statutory limits embodied in old section 10(1)(b). The cruelty contemplated was a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent. The court overruled the decision in Madanlal Sharma v. Smt. Santosh Sharma, which had held that cruelty under section 13(1)(i-a) meant cruelty as understood under the old English concept of doctrine of danger.
Issues: 1. Whether cruelty as a ground for divorce under section 13(1)(i-a) of the Hindu Marriage Act, 1955, meant cruelty as understood under the old English concept of doctrine of danger? 2. Whether the intention of the legislature in enacting section 13(1)(i-a) was to liberalize the law of divorce or to restore the doctrine of danger?
Ratio Decidendi: 1. The court held that the intention of the legislature in enacting section 13(1)(i-a) was to liberalize the law of divorce and not to restore the doctrine of danger. This was evident from the statement of objects and reasons of the Amending Act, the Law Commission Report, and the social background against which the bill was introduced. 2. The court also held that the cruelty contemplated under section 13(1)(i-a) was not limited to conduct that caused danger to life, limb, or health, or a reasonable apprehension thereof. Rather, it was a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent.
Final Decision: The Full Bench answered the reference accordingly and directed that the Second Appeal be placed before the Single Judge for decision according to law.

JUDGMENT - Mohta J.-Has Madanlal Sharma v. Smt. Santosh Sharma1 correctly laid down the law relating to “cruelty” as a ground for divorce as envisag-ed by section. 13(l)(i-a) of the Hindu Marriage Act, 1955 (“The Act” for short) is a point which needs answer in this reference to the Full Bench.

2. First of all, the factual background. Appellant Dr. K.K.. Londhe, married the respondent Mrs. Nisha Londhe in the year 1950. The respon- dent is Christian by birth but she was converted to Hinduism and the marriage was performed according to Hindu rites. During the period of 16 years of maritai life, the couple was blessed with three children. The marriage life unfortunately was unhappy. The respondent had gone to Bangalore sometime after May 1966. In September 1966, she gave a notice to the appellant for restitution of conjugal rights to which no response was given. She, therefore, filed a petition for custody of the children and also filed a civil suit for maintenance. In the year 1967, the appellant filed a petition for judicial separation under old section 10(1) (b) of the Act on the ground of cruelty. The substance of the appellant's contention was that the respondent was uncultured, she entertained uncultivated ideas of behaviour and had not developed any emotional bond requisite for a happy married life. She was dogmatic, quarrelsome, selfish, arrogant and had no emotions of affection and love even towards the children. She obtained complete control over the financial situation of the family, insulted the appellant from time to time, exhibited inhuman behaviour towards tire children, prevented the children from following Hindu religion, exhibited total lack of attention to the family affairs and gave threats to commit suicide and falsely alleged illegitimate relationship between the appellant and a nurse by name Chellamma. The respondent contended in defence that unhappiness in the family life crept in only when the appellant became unfaithful to her and got himself attached to Chellamma sometime in 1965 when he was serving a Medical Officer in the refugee camp at Chandrapur. She denied the allegations of cruelty.

3. The learned trial Judge came to the conclusion on evidence that the appellant had failed to prove such cruelty “as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party” as contemplated under old section 10(1)(b) of the Act. He further held that the petition was based on the ground of incompatibility and the examples given were of moral cruelty not contemplated under that provision and that unless the cruelty alleged is shown to have endangered appellant's health, no relief could be granted. He also held that the appellant was having illicit love affair with Chellamma and was leading an adulterous life. The petition was dismissed but the custody of the children was given to the appellant. Both parties filed an appeal which came to be dismissed by the Assistant Judge in the year 1971. Reliance was placed on the case of Dr. Narayan Dastane v. Mrs. Sucheta Dastane which had taken a view, as many other High Courts had taken, that cruelty contemplated under old section 10(l)(b) meant legal cruelty as understood in English Law, namely, injury caasing danger to life or limb or health or reasonable apprehension of such injury. The appellant filed the present second appeal in the year 1972.-During the pendency of the second appeal, the Marriage Laws (Amendment) Act 1976 (Act No. 68 of 1976) was passed. It introduced drastic changes and obliged the Courts to decide pending petitions as if they had been originally instituted under the Act as amended. The Act No. 68 of 1976, inter alia, provided also for divorce on the ground of cruelty as mentioned in the amended provision, viz. section 13(1)(i-a). The appellant sought an opportunity to amend the pleadings as contemplated under section 39(2) of the Act No. 68 of 1976. This amendment c

Click Here to Read the rest of this document