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IN THE HIGH COURT OF ALLAHABAD
Deoki Nandan, J.
SADAN SINGH - Appellant
Versus
SMT.RESHAM - Respondents
Second Appeal 2125 Of 1978
Decided On : 07/27/1981
HINDU MARRIAGE ACT - SECTION 10(1)(B) - CRUELTY - FALSE CHARGE OF ADULTERY - AMENDMENT OF PETITION - SECTION 13(1-A) - DIVORCE - JUDICIAL SEPARATION - CONDONATION - DESERTION - INTERPRETATION AND APPLICATION.
Fact of the Case:
Husband filed a petition for divorce on the grounds of cruelty and desertion. The trial court granted a decree for judicial separation but awarded maintenance to the wife. The lower appellate court set aside the trial court's judgment and dismissed the petition. The husband appealed to the High Court.
Finding of the Court:
The High Court held that the false charge of adultery made by the wife against the husband did not amount to cruelty. The court also held that the allegation of illicit relations between the husband and his sister-in-law, which was made by the wife, was condoned by the cohabitation between the parties in 1969, which resulted in the birth of a child. The court further held that the husband was not entitled to a divorce on the ground of desertion as the finding of the trial court on this point was in favor of the wife.
Issues: 1. Whether the false charge of adultery made by the wife against the husband amounted to cruelty? 2. Whether the allegation of illicit relations between the husband and his sister-in-law, which was made by the wife, was condoned by the cohabitation between the parties in 1969, which resulted in the birth of a child? 3. Whether the husband was entitled to a divorce on the ground of desertion?
Ratio Decidendi: 1. A false charge of adultery made by a wife against her husband does not amount to cruelty unless it causes reasonable apprehension in the mind of the husband that it will be harmful and injurious for him to live with her. 2. An allegation of illicit relations between a husband and his sister-in-law, which is made by the wife, is condoned by the cohabitation between the parties after the allegation is made. 3. A husband is not entitled to a divorce on the ground of desertion if the finding of the trial court on this point is in favor of the wife.
Final Decision: The appeal was dismissed with costs.
( 1 ) THIS is a husbands second appeal in a suit for dissolution of his marriage with the respondent, by a decree of divorce and in the alternative for judicial separation.
( 2 ) THE appellant is captain now a major in the army. His case was that the parties were married on 26-4-1959 when he was about 17 years of age and the respondent was only 14. They lived and cohabited together at their village home where they last resided together upto 10-10-1969. The respondent wife is then described as short-tempered who sometimes becomes violent and who is said to use abusive language. She was alleged to be shortstatured and hard of hearing. It was then said that one day the respondent wife hurled a Belen and used to beat his nephews and abused the petitioners mother as also his brothers wife. This is followed by the complaint that the respondent wife falsely accused the husband of "complicity with his Bhabhi who is about 18 years older than him" and has 8 issues, the eldest of them being 27 years old and whom petitioner "respects like his mother. " The husband had to suffer indignity and humiliation before his family and neighbours. His life became Very miserable so that "he became impotent towards her". This is followed by the allegation that "he could not associate with her in the advanced society to which the petitioner belongs as a commissioned officer of Indian army. " Lastly he alleged that the respondent wife collected people, defamed the petitioner and ultimately left the petitioners house and went to her fathers house in or about Febuary 1970 and had not returned to the petitioner thereafter. A son was said to have been born on 12-5-1970, but died ten days thereafter on 22-5-1970. On these facts, the husband alleged that the respondent wife had "deserted the petitioner now for 5 years"; that "she has treated the petitioner with such cruelty as to cause reasonable apprehension in the mind of petitioner that it will be harmful and injurious for the petitioner to live with her"; and that "she had almost disrupted the joint family life of the petitioner with his parents, brother and his sons and has thus caused incalculable mental torture to petitioner". A petition for divorce was said to have been filed by the husband on 11-10-1969 on which an ex parte decree for divorce was passed on 23-4-1970, but was set aside and thereafter the suit was dismissed for default of parties on 14-2-1974. The petitioner Stated that he came to know about it only a few days before from leave (sic ).
( 3 ) HAVING stated the facts narrated in the petition, I must observe that even if all the facts that the petitioner has stated were accepted at their face, no case, whether of cruelty or desertion, could be said to be made out against the respondent and the petition was liable to the dismissed. Be that as it may, the respondent filed a written statement and the matter went to trial on the following issues :-
"1. Whether cruelty was committed by the respondent on the petitioner ? 2. Whether the respondent malignantly blamed the petitioner to have illicit relations with his bhabhi and thus brought him to disrepute, if so its effect ? 3. Whether the petitioner has become impotent towards her on account of her continuous maltreatment?
( 4 ) TO what relief, if any, is the petitioner entitled ?
( 5 )
Whether the respondent has deserted the petitioner without any reasonable and probable cause ?" 4. On an appraisal of the evidence, the trial court found on issue No. 1 that the respondent is not guilty of having committed cruelty or of such conduct as to give rise to an apprehension in the petitioners mind that co-habitation with her would be injurious or harmful; on issue No. 2, that a false charge of adultery was made by the respondent against the petitioner which caused him mental agony and that amounted to cruelty within the meaning of Section 10 (1) (b); on issue no. 3, that the petitioner was not impotent and was capable of sexual intercours
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