1987 Supreme(MP) 606

IN THE HIGH COURT OF MADHYA PRADESH
T.N. Singh, J.
Umadevi - Appellant
Vs.
Nareshchandra - Respondent
F.A. No. 11 of 1987 (G)
Decided On : 30-11-1987

Headnote:(1) Hindu Marriage Act, 1955 – S.28 – appeal under – different views on evidence – may be taken only in compelling circumstances.

       (2) Hindu Marriage Act, 1955 – S.13(1)(i – a) – denial of right of cohabitation to husband – gives him mental cruelty.

        Short Note

       Appeal Under Section 28 of the Hindu Marriage Act, against the order dated 22 January 1987, passed by the Shri M.W. Deo, District Judge, Gwalior, in Case No. 103 – A/1984 (Naresh Chandra v. Umadevi).

       2. Held: Shri Mishra submitted before me that I should take a different view on evidence, differing from the trial Court which has taken the view that there was unholy pre – marital alliance between the appellant Umadevi and one Ashok Kumar Sharma, but that would hardly make any difference. The trial Court has relied on documentary evidence, namely, letters (Ex. P/1 and Ex.P/2) and has believed the evidence of petitioner rejecting that of the wife in taking the view and the only thing that I may say in this connection is that appreciation of oral evidence lie primarily within the province of the trial Court. Only in compelling circumstances, when the view taken is palpably unreasonable, an appellate Court may differ on the question of veracity of witnesses (See Madhusandan, AIR 1983 SC 114 and Sarju Prasad, AIR 1951 SC 120). The moot point indeed is, it is a difficult thing to reject the finding and the conclusion of the trial Court that before the appellant finally deserted the respondent after about two years of marriage, during the intervening period they did not live together as husband and wife, and they had no sexual intercourse because the wife did not discharge her marital obligation and the husband was not allowed to enjoy her company.

       3. Indeed, the plea of the appellant that she could not live with the respondent at the matrimonial home due to torture stands discredited not only on evidence which the trial Court has discussed, but also by the subsequent event witnessed during the pendency of the appeal in this Court. On several dates, hearing of the appeal was adjourned to allow the couple to live together in a separate house but even after the respondent/husband hired a separate residence for the two to live together, the appellant all along played truant. At the Bar, this position indeed is not denied that a similar futile exercise was also undertaken during the course of trial. The conduct of the appellant definitely lends credence to the finding of the trial Court that her plea of torture was nothing, but a subterfuge to non – suit respondent/petitioner.

       4. Judicial consensus, in my opinion, is clear and unambiguous that the term "cruelty" used in clause (i – a) of Section 13(1) of the Act includes cruelty of the type as would embrace the concept of mental cruelty resulting from dental to the husband the right of cohabitation. In the Bench decision of the Calcutta High Court in the case of Sankar Prasad v. Madhabi, 1983 MIR 155, the holding to this effect is clear, categorical and forceful. Indeed, a learned single Judge of this Court has taken the same view in the case of Harbhajan Singh v. Amarjeet Kaur, 1980 (1) DMC 470. The law is succinctly stated in a Full Bench decision of Bombay High Court in the case of Dr. K.K. Londhe v. Mrs. Nisha Londhe, reported in 1985 MIR 11, as to the broad test to be applied in considering validity of a plea made under Section 13(1)(i – a) of the Act. It was held that “cruelty” contemplated therein "is of such type that the petitioner cannot reasonably expect to live with the respondent or living together of the spouses had become uncompatible". Applying this test to the facts and circumstances of this case, the relief prayed cannot be refused as it has been established beyond any pale of controversy that the two having failed to live together as husband and wife their living together has become incompatible with their relationship of which the foundation is physical support and company that one spouse must give to other for mutual physical and mental happineS. AIR 1983 SC 114, AIR 1951 SC 120, 1983 MIR 155, 1980 (1) DMC 470 and 1985 MIR 11 relied on. AIR 1978 All. 285, AIR 1981 All. 78, AIR 1982 All. 52, AIR 1964 SC 40 and AIR 1957 SC 176 distinguished. Appeal dismissed.