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2006 Supreme(Gau) 9
IN THE HIGH COURT OF GAUHATI
B. SUDERSHAN REDDY AND AFTAB H. SAIKIA, JJ.
Rup Jyoti Das – Appellant
Vs.
Beron Saikia – Respondent
MAT Appeal No. 17 of 2004
Decided On: 03.01.2006
Advocate Appeared
For Appellant/Petitioner/Plaintiff: M.U. Mahmud, P.K. Talukdar, K.R. Patgiri and I. Choudhury, Advs.
For Respondents/Defendant: D.R. Gogol and Imnasangla, Advs.
The main legal point established in the judgment is that mental cruelty can be grounds for divorce under Section 13(1)(ia) of the Hindu Marriage Act, and the irretrievable breakdown of a marriage can also be considered for granting a decree of divorce.
Headnote:
Hindu Marriage - Divorce - Hindu Marriage Act, 1955 - Section 13(1)(ia) and (ib)
Fact of the Case:
The appellant sought divorce on the grounds of cruelty and desertion under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955. The marriage was solemnized under Hindu rites and rituals, and the appellant alleged mistreatment and neglect by the respondent, leading to her leaving the marital home with their child.
Finding of the Court:
The court found that the appellant's allegations of cruelty and desertion were not substantiated, and the petition for divorce was dismissed. The court emphasized the importance of reconciliation and attempted to bring about a reconciliation between the parties, but the effort failed.
Issues: The issues included whether the respondent treated the petitioner with cruelty, whether the respondent deserted the petitioner, and whether the petitioner was entitled to a decree of divorce.
Ratio Decidendi: The court found that the appellant suffered mental cruelty due to the respondent's accusations affecting her character, but the ground of desertion was not established. The court also noted that the marriage had irretrievably broken down.
Final Decision: The court allowed the appeal and granted the relief of dissolution of marriage by a decree of divorce in favor of the appellant.
A.H. Saikia, J.
1. Issue in lis:
Whether the marriage solemnized between the appellant, Smt. Rupjyoti Das and the respondent Sri Beron Saikia under Hindu rites and rituals can be dissolved by a decree of divorce on being sought by the appellant on the ground of Cruelty and Desertion as embodied in Section 13(1)(ia) and (ib) respectively under the Hindu Marriage Act, 1955 (for short, 'the Act').
Tenets of Hindu Marriage and Divorce:
2. It is considered that the judgment would be benefited if purity and sanctity of the institution of marriage vis-a-vis scope of divorce as mandated under old Hindu Law is highlighted herein and the same is accordingly discussed.
(i) Ancient Textual concepts:
3. In Manusmriti, IX, P. 64-68, Manu declared that due performance of religious rites, faithfully worship, performance yagnas, highest conjugal happiness and heavenly bliss for ancestors and oneself all depend upon the wife. Hence wife is not just patni (wife) but dharrnapatni (partner) in performance of duties, spiritual, religious and others inasmuch as among Hindus there are many yagnas i.e. religious and spiritual sacrifices, rites and ceremonies, which a man without wife cannot perform. Dictate of Vedas is that marriage is a union of 'bones with bones, flesh with flesh and skin with skin, the husband and wife as if they were one person'. In the Dharmashastras, the husband is referred to several designations as he is known as bhartri because he is to support his wife, he is known as pati because he is to protect her. Similarly the wife has several names. She is called jaya because one's ownself is begotten on her. She is grihini, the lady of the house, so sachive, wise counseller; sakhi, confidante; she is the dearest disciple of her husband in his pursuits (Dr. Paras Dwan's Hindu Law, 1st Edition, 1995, p. 470). Manusmriti-V 147-54 has ordained that the husband must be obeyed as long as he lives and the wife should remain faithful to his memory after his death.
4. Hindu marriage is, thus, a sacrament. Hindus conceived their marriage not merely a sacrosanct and inviolable union, but also an eternal union-a union which subsists not merely during this life but for all lives to come. Derrett in his 'A Critique of Modern Hindu Law (1970) p. 287' candidly put "the intention of the sacrament is to make the husband and wife one, physically and psychically, for a secular and spiritual purpose, for this life and for after lives. It can, therefore, be easily said that it is a tie which once tied cannot be untied.
5. In view of the above historical background pertaining to the concepts of Hindu marriage, Divorce was unknown to general Hindu Law. Generally Hindu Law does not recognize divorce because marriage in Hindu Law is regarded as an indissoluble union of the husband and the wife extending to the next world. Although Hindu Law does not contemplate divorce, yet it has been held that where it is recognized as an established custom, it would have the force of law. Manu succinctly declared "Let mutual fidelity continue till death; this in brief may be understood to be the highest Dharma of man and wife". Duty of a wife continues even after her death. Basically the custom of divorce existed among the lower caste. Only in a very few high castes, divorce by custom has been available. The importance of customary divorce is accepted even after the reform and codification of Hindu Law of Marriage. In some cases, marriage can be dissolved by mutual consent. Under Kautilya Arthasasthra, marriage might be dissolved by mutual consent in case of unapproved form of marriage.
6. However, in India in the later part of the 19th century, divorce was introduced by two sets of enactment for two classes of persons; (i) those who converted to Christianity and consequent thereof their spouses refused to live with them through the Native Converts Marriage Dissolution Act, 1866 and (ii) as per Indian Divorce Act, 1869 those who were Christians and performed Christian marri
