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1994 Supreme(All) 790
HIGH COURT OF ALLAHABAD
V.P.Goel, S.C.Mohapatra
BEENA
Versus
GURESHVIR TOMER
Decided On : 15 November 1994
First Appeal No. 6 of 1994
P.K.Jain, V.K.Goel,
The standard of cruelty in Indian society is different from that in English society, and a wife's conduct, which might have appeared to have some resemblance of cruelty, may not be sufficient to constitute cruelty under Section 13 of the Hindu Marriage Act.
Headnote:
HINDU MARRIAGE ACT, 1955 - SECTION 13 - SECTION 9 OF THE FAMILY COURT ACT - CRUELTY - WIFE'S CONDUCT - STANDARD OF CRUELTY IN INDIAN SOCIETY - CONDONATION OF CRUELTY - CONCILIATION - SECOND MARRIAGE OF HUSBAND - VALIDITY.
Fact of the Case:
Wife appealed against the Family Court's order granting divorce to her husband under Section 13 of the Hindu Marriage Act, alleging cruelty. The husband claimed that the wife misbehaved with his family members, threatened to commit suicide, and left the matrimonial home. The wife denied the allegations and stated that she was forced to leave due to excessive dowry demands.
Finding of the Court:
The court found that the husband failed to prove the allegations of cruelty against the wife. The court held that the wife's conduct, even if true, could not be considered cruelty in the context of a newly married girl who wanted to be with her husband and was left alone for long periods. The court also found that the husband had condoned the wife's alleged cruelty by bringing her back to the matrimonial home after a period of separation.
Issues: 1. Whether the wife's conduct amounted to cruelty under Section 13 of the Hindu Marriage Act? 2. Whether the husband had condoned the wife's alleged cruelty? 3. Whether the Family Court erred in not taking steps for conciliation under Section 9 of the Family Court Act?
Ratio Decidendi: 1. The court held that the standard of cruelty in Indian society is different from that in English society, and that the wife's conduct, which might have appeared to have some resemblance of cruelty, was not sufficient to constitute cruelty under Section 13 of the Hindu Marriage Act. 2. The court held that the husband had condoned the wife's alleged cruelty by bringing her back to the matrimonial home after a period of separation. 3. The court held that the Family Court erred in not taking steps for conciliation under Section 9 of the Family Court Act, but that it was not necessary to remit the case back for conciliation in light of the husband's subsequent marriage.
Final Decision: The court allowed the appeal, reversed the Family Court's order, and dismissed the husband's application for divorce.
Wife is appellant in this appeal under Section 19 of the Family Court Act against the order of the Family Court decreeing the suit for divorce under Section 13 of the Hindu Marriage Act.
2. Parties who are Hindus were married on 9-2-1985. Husband is an employee stationed at Moradabad in a touring job. After residing in the matrimonial home for some time, wife went back to her parental home as per custom and came back to her matrimonial home in April, 1985 to reside in the joint family of her husband as husband could not find a place to stay with his wife at Moradabad. Case of husband is that while wife was in the joint family of husband consisting of his parents, sisters, brother and his wife, she was misbehaving with them. Many times she was not taking food for which unhappy atmosphere was created in the family. She also stayed for sometime with brother of his father. There also she behaved in the same manner. When husband requested her to remain peacefully with the joint family, she threatened to commit suicide in case she is compelled to stay with members of joint family of
husband. While so continuing, she left the matri monial home towards September, 1985 with all her belonging to her parental home with her brother. Sometimes after she regretted for her conduct and addressed a letter to her husbands father on 24-9-1984 and again on 20-1-1986. When wife was staying with her parents, there was conciliation and husband went and brought back his wife on 12-5-1987. After some lime, wife again started to misbehare as earlier and threatened to commit suicide. Lastly, she left her matrimonial home of her own on 16-8-1988. Further case of husband is that he had no sexual relationship with his wife as she was always avoiding the same on ground of her illness. On consultation with medical expert, he got the opinion that his wife has no child bearing capacity, On these allegation application was filed for declaring the marriage void on ground of impotency and for divorce on ground of cruelty by wife.
3. Wife contested the application. She denied allegations against her and asserted that she had sexual relationship with her husband. She stated that although she was stating to stay with husband in place of his posting she did not deny to stay in the joint family. Her case is that she was kept in joint family for extracting excessive dowry. She had not left matrimonial home on 16-7-1988 but on her brother lodging First Information Report alleging demand of excessive dowry, she was recovered from matrimonial home on 21-7-1988 and was thereafter staying with her parents. Since First Information Report yielded no result, matter is pending in criminal court at Meerut.
4. In support of his case, husband examined himself and another witness. He also proved letter of wife to him and to his father and written allegations made by wife against him to his superior authorities for action against him. Wife has examined herself and three others witnesses. Consi dering aforesaid materials, learned Family Judge disbelieved story of im potency or lack of child bearing capacity of wife. But the application for divorce was allowed coming to conclusion that wife is guilty of cruelty as she has made frivolous complaints against her husband to his employer, and initiated prosecution lodging First Information Report through brother alleging demand of dowry. Family Court also took ill-treatment by wife to be circumstance to prove her cruelty. It has been held that wife was cruel in her behaviour to her parents-in-law.
5. Sri V. K. Goel, learned counsel for the appellant contended that finding of cruelty by the learned Family Judge is not sustainable either on acts or under law. Mr. Jain, learned counsel for the respondent on the other hand submitted that taking into the consideration facts and circum stances as proved, irresistable conclusion would be that wife was cruel to the husband. To appreciate the contentions of both the parties, it
