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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
K.K. Gupta,R.P. Sethi, JJ.
Kamla Devi - Appellant
Versus
Balbir Singh - Respondent
LPA No. 7/1978
Decided On : 14 July, 1986
HINDU MARRIAGE ACT - SECTION 23 - CONDONATION OF CRUELTY - COURT'S DUTY TO INQUIRE - CONDONATION INFERRED FROM COHABITATION - FORGIVENESS AND RESTORATION OF OFFENDING SPOUSE - STRAY ACTS OF SEXUAL INTERCOURSE INSUFFICIENT - INTENT TO FORGIVE AND RESTORE INFERRED FROM NORMAL MATRIMONIAL RELATIONS - COURT'S OBLIGATION TO ASCERTAIN DISABILITY UNDER SECTION 23 IRRESPECTIVE OF PLEADINGS - CONCURRENT FINDING OF FACT ON CRUELTY NOT DISTURBED - NORMAL WEAR AND TEAR OF FAMILY LIFE NOT AMOUNTING TO CRUELTY - RESUMPTION OF COHABITATION AND NORMAL MATRIMONIAL LIFE AFTER ALLEGED CRUELTY - EVIDENCE OF HUSBAND'S EFFORTS TO RESUME MATRIMONIAL RELATIONS - CONDONATION INFERRED - APPEAL ALLOWED, DECREE OF JUDICIAL SEPARATION SET ASIDE, HUSBAND'S APPLICATION DISMISSED WITH COSTS.
Fact of the Case:
Husband filed a petition under sections 10 and 13 of the Hindu Marriage Act for divorce or judicial separation on the ground of cruelty. The wife resisted the petition, denying the alleged cruelty and stating that she was willing to live with the husband. The trial court granted a decree for judicial separation. The wife appealed, and the High Court dismissed the appeal. The wife then filed a Letters Patent Appeal.
Finding of the Court:
The High Court held that the trial court and the lower appellate court erred in not considering the mandatory provisions of section 23 of the Hindu Marriage Act, which prohibits the passing of any decree unless the requirements of that section are complied with. The court found that the husband had condoned the alleged cruelty by resuming cohabitation with the wife and leading a normal matrimonial life after the alleged acts of cruelty. The court also found that the husband had made efforts to resume matrimonial relations with the wife, which indicated his intent to forgive and restore her to her original status.
Issues: 1. Whether the trial court and the lower appellate court erred in not considering the mandatory provisions of section 23 of the Hindu Marriage Act? 2. Whether the husband had condoned the alleged cruelty by resuming cohabitation with the wife and leading a normal matrimonial life after the alleged acts of cruelty? 3. Whether the husband had made efforts to resume matrimonial relations with the wife, which indicated his intent to forgive and restore her to her original status?
Ratio Decidendi: 1. Section 23 of the Hindu Marriage Act casts a duty upon the court to satisfy itself that none of the conditions of section 23(1) clauses (a, b, c, d,) existed before granting any decree. 2. Condonation means forgiveness of the matrimonial offence and the restoration of the offending spouse to the same position. To constitute condonation there must be, therefore, two things forgiveness and restoration. 3. In a case where the spouse after separation resumes cohabitation with the alleged erring party the condonation has to be inferred. However, stray acts of sexual intercourse may not be sufficient to come to the conclusion that the acts complained of had been condoned. 4. If during the co-habitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterizes normal matrimonial relations, the intent to forgive and restore the offending to the original status may reasonably be inferred.
Final Decision: The High Court allowed the appeal, set aside the judgment and decree of the lower courts, and dismissed the husband's application for divorce or judicial separation with costs.
1. A matrimonial dispute between the parties to this litigation legally started in the year 1970 when the husband respondent filed a petition under section 10 and 13 of the Hindu Marriage Act for getting a decree of divorce or in the alternative a decree for judicial Separation on the alleged ground of cruelty o. the wife appellant.
2. The facts leading to the filing of the present appeal are that the parties were married on 16-2-1964 a female child was born to the parties in the year 1965 who died after 6/7 months, second female child was born in November, 1979 who is alive and was living with the wife-appellant. The husband alleged that the treatment of his wife towards him had been very disrespectful and abusive. The behaviour of the wife towards the husband had been extremely bad who had always illtreated him The wife had been treating the husband with such cruelty that accused reasonable apprehension in his mind that it would be harmful and injurious for him to live with her. In para 10 of the petition the husband alleged that he has not in any manner condoned the cruelty of the respondent. The wife resisted the grant of decree of divorce or judicial separation on the grounds that she was not guilcy. of the alleged cruelty. She had been living with her husband in the house of her father-in-law. It was only about three months from the date of filing of her objections 24 - 3 - 1971 that she came to her parents in connection with the delivery of the child whereafter the petitioner husband never came to take her back to his house. She was prepared to go and live with the husband. The petitioner-husband had filed the application with the ulterior motive of his remarriage somewhereelse. Para 10 of the petition was specifically denied and it was stated that there was no truth in the allegations of the cruelty or bad treatment by ths wife, therefore there wa; no question of condonation of cruelty.
3. On the pleadings of the parties the following issue was framed:
"Whether the respondent has been treating the petitioner with such a cruelty that her stay with him is either dangerous to his life or injurious to his health." OPP
4. After recording the evidence of the parties the trial court passed a decree for judicial separation in terms of section 10 of the Jammu and Kashmir Hindu Marriages Act (Old) hereinafter called "the Act." The wife filed civil first Misc. appeal No. 6 of 1973 before this Court which was dismissed on 12-1-1978 whereafter the wife filed the present Letters Patent Appeal The respondent submitted that LPA No. of 1978 was not competent in view of the judgment of this Court in Satya Jyoti Vs Major R. D. Jyoti LPA No. 8 of 1878 decided on 14-3-1979. Two questions were formulated by the Division Be.ich of this Court by a majority judgment dated 18-11-1980 has held that the appeal was maintainable and directed that the record of the case be sent to the Div. Bench for the decision on other points raised in the appeal.
5. We have heard the learned counsel for the parties and have perused the relevant record.
6 Mr. Parihar, the learned counsel appearing for the appellant wife has submitted that the judgment of the Honble Single Judge and that of the trial Judge is liable to be set aside because the same suffers from material legal infirmity in as much as both the courts have ignored the statutory provisions as contained in section 23 of the Hindu Marriage Act which prohibit the passing of any decree unless the requirement of that section were complied with. Elaborating his argument he has submitted that as in the instant case the husband was claiming relief on the ground of alleged cruelty, he was under an obligation to prove and satisfy the court that the said cruelty had not in any way been condoned by him.
6. Mr. Nanda, learned Icounsel appearing for the respondent husband has however stated that as the finding regarding cruelty is a finding of fact and stands concunenlty concluded by two judgments, the sam
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