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High Court Of Rajasthan
Judgename : M.L.Jain
PARIHAR (PRITI) - Appellant
Versus
PARIHAR (KAILASH SINGH) - Respondent
Civil Misc. Appeal 7 Of 1977
Decided On : 04/04/1978
HINDU MARRIAGE ACT, 1955 - SECTION 10 - JUDICIAL SEPARATION - GROUNDS - DESERTION - INTENTION TO BRING COHABITATION PERMANENTLY TO AN END (ANIMUS DESERENDI) - CRUELTY - MENTAL CRUELTY - CONDONATION - REVIVAL - BURDEN OF PROOF - SPOUSAL CRUELTY - RELIEF - COURT'S DISCRETION TO GRANT DECREE OF DISSOLUTION OF MARRIAGE - IRRETRIEVABLE BREAKDOWN OF MARRIAGE.
Fact of the Case:
The husband filed a petition for judicial separation on the grounds of desertion and mental cruelty under Section 10 of the Hindu Marriage Act, 1955. The wife denied the allegations and filed a reply explaining all the allegations levelled by the husband. The trial court, after a careful analysis of each piece of evidence led on either side, found that the plea of desertion was false and disbelieved most of the allegations regarding cruelty. However, the court held that the wife's relationship with Ramesh and her desire to commit suicide written in the diary were two facts which establish that the husband was treated with mental cruelty, but the letters which he subsequently wrote to her from Jorhat from March 10, 1969 to October 23, 1969, showed that he had condoned the cruelty. The court also found that there was no possibility of reconciliation and the gulf between the two had widened during the last 7 years. It, therefore, dissolved their marriage.
Finding of the Court:
The court held that the husband failed to prove desertion for more than 2 years and further that during all this period the husband was ready and willing to keep the wife. The court also held that the wife is not in desertion much less for the statutory period of not less than two years. With regard to cruelty, the court held that the circumstances alleged to have caused mental cruelty to the husband in this case are not sufficient to establish mental cruelty. The court also held that the subsequent conduct of the wife did cause mental cruelty to the husband and that the cruelty by the wife has been established. The court further held that the marriage deserves to be dissolved as it is an empty shell which should be destroyed with the maximum fairness and minimum bitterness.
Issues: 1. Whether the wife was guilty of desertion for two years or more. 2. Whether the husband was treated with mental cruelty by the wife. 3. Whether the husband had condoned the cruelty. 4. Whether there was any possibility of reconciliation between the parties. 5. Whether the marriage should be dissolved.
Ratio Decidendi: 1. Desertion - The essential conditions for desertion are: (1) the factum of separation, and (2) intention to bring cohabitation permanently to an end (animus deserendi). The burden of proof is on the petitioner to establish beyond reasonable doubt to the satisfaction of the court the desertion throughout the entire period of 2 years immediately preceding the petition as well as that such desertion was without just cause. 2. Cruelty - Cruelty is wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health bodily or mental as to give rise to reasonable apprehension of such a danger. It includes action or omission which injures the susceptibilities of the affected spouse and causes him or her mental agony which the sufferer alone can state. 3. Condonation - Condonation within Section 23 (1) (b) of the Hindu Marriage Act, 1955 means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. Revival of condoned cruelty can occur if the offending spouse commits a fresh act of cruelty. 4. Dissolution of Marriage - The court has the discretion to grant a decree of dissolution of marriage if it is satisfied that the marriage has broken down irretrievably.
Final Decision: The court dismissed the appeal and upheld the impugned judgment and decree of the trial court dissolving the marriage between the parties.
M. L. JAIN, J.
( 1 ) THIS is wifes appeal against the judgment and decree passed by the learned district Judge, Jodhpur, and dated January 4, 1977, by which he granted a decree of divorce to her husband.
( 2 ) RESPONDENT Kailsh Singh Parihar a pilot officer (now a Squadron Leader) son of a Judge of this court (now Retd.) and appellant Priti a daughter of an army medical officer with the rank of Colonel (now retd-) and educated in a convent were married on May 9, 1968, in Jodhpur. Both come of the two prominent families of the Mali community. Their marriage was not even four years old before it came crashing down and the husband preferred an application on january 11, 1972, for judicial separation on the grounds of desertion and mental cruelty under Section 10 of the Hindu Marriage Act, 1955, which shall hereinafter be called the Act. The Act was amended on May 24, 1972. It was later on converted into a petition for divorce on July 7, 1976, The allegations commence right from the time the bride crossed the threshold to receive her groom at the time of the "toran" ceremony. It is complained that she had no veil on her face- Since the respondent made her then cover her face, the appellant made it a point of her prestige. After the marriage, the respondent came to know that on the day of the marriage, some young man had caught her by her hands in a mournful tone that alas, she was being married, and thereupon, tears began to leave her eyes. The husband was then posted outside Jodhpur at Jorhat. After a honey-moon of three months, while he was departing to join his duties on June 3, 1968, relatives of the wife insisted that he should take her with him, but he then failed to catch the significance thereof and left her behind with his parents at their house, which he describes as his declared matrimonial home, as it was also his officially notified residence. She however went to her fathers home and it is alleged that it was there that she lived for most of the time. The husband returned in November, 1968, on leave. At that time, the wife received a letter from an army officer Capt. David bargouhna in which he addressed her as "priya Bhabhiji" On enquiries being made by the husband, the wife was unable to give a satisfactory explanation. The husband then commanded her that there being no discipline in the house of her rather she must stay with his parents, though she could be permitted to visit them for a day or two. It appears that the husband then left Jodhpur.
( 3 ) ON February 4, 1969, the marriage of his elder brother took place in bombay. In that connection he came to Jodhpur and was told that she lived with her father for the entire period of December, 1968, and January, 1969. They, however, went to Bombay and returned on February 6, 1969. Then, before his departure, he happened to come by the daily personal memoirs of the wife which disclosed her mode of living, thinking, intentions, conduct and character and particularly, her fondness for one Ramesh. These memoirs further revealed that the wife did not like to live in the strict discipline of the husbands family and was intent upon suicide. She preferred to live as a "hippy" and suffered mental agony upon her helplessness to break the social bonds. The wile had undesirable and unbecoming connection with Ramesh. She was longing to join dance parties with him. She was found frequenting restaurants, sexy English films in the company of young men and dressed like a "hippy. " she has been living with her parents since February, 1968, against his wishes. In July, 1969, the husband came again on leave for 10 days but she came to see him only for once and defying his instructions, she continued to live with her parents. In spite of this, he carried on normal correspondence so that their relations were not poisoned. This he had to because he was in active service and his letters were subjected to censor and he could not write anything to his wife about his real feelings. O
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