R.P. SETHI, J
IN THE MATTER OF -
SAVITRI PANDEY ......... APPELLANT
VERSUS
PREM CHANDRA PANDEY ........... RESPONDENT
Facts
Asserting cruelty and renunciation against the spouse, the appellant (wife), moved to the Family Court under Section 13 of the Hindu Marriage Act, petitioning court for disintegration of her marriage with the respondent by a pronouncement of separation. She likewise appealed to court for course to the respondent to restore her ornaments and other valuable items given to him at the hour of marriage. The court permitted the petition and dissolved the marriage on the ground of renunciation by the spouse. The appellant party was additionally conceded an announcement of Rs.12, 000/ - towards the cost of the bike, supposedly given at the hour of the marriage and installment of Rs.500/ - every month as lasting divorce settlement. Both the parties favored interests against the request for the Court as they were not happy with the order of the court. The wife also wanted her share in the properties and the husband was oppressed by the request for disintegration of the marriage by a pronouncement of separation.
Both the interests were discarded, holding that the appellant herself was a defaulting party and neither the claims of cruelty nor of desertion were true. The request went under section 27 of the Hindu Marriage Act. The complaint of the appellant party is that the High Court was not supported in putting aside the discoveries of certainty showed by the Family Court and that she had demonstrated the presence of cruelty and desertion against the respondent. It is fought that as the appellant was demonstrated to have been living independently, it was to be assumed that the respondent had abandoned her.
The realities of the case offering ascend to the documenting of the current interests are that marriage between the parties was solemnized on 6.5.1987. The appellant lived with the respondent till 21st June, 1987 and as per her the marriage between the parties was rarely consummated. After 21st June, 1987 the parties began living independently. The appellant affirmed that her parents spent more than Rs.80,000/ - as for the rituals and ceremonies.
The respondent and his relatives began tormenting the appellant on occasions. Abused by the mentality of the respondent and his relatives, the appellant states to have recorded an appeal under section 13 of the Act, looking for disintegration of marriage by separation alongside petition for the arrival of the property and award for divorce settlement. The respondent additionally recorded a request looking for separation and award of different reliefs. On 14.5.1996, the respondent submitted an application for withdrawal of his marriage which was permitted on 19.5.1996. The appellant had affirmed that the respondent was having relations with a woman living in Bihar with whom he was expressed to have solemnized the marriage. The claims made in the request were denied by the respondent and it was expressed that in truth the appellant was exploiting her own wrongs.
Based on the pleadings of the parties, the accompanying issues were surrounded:
1. Whether the respondent has treated with cruelty? Assuming this is the case, its impact?
2. Whether the applicant is qualified for help under Sec.27 of the Hindu Marriage Act? Provided that this is true, its impact?
3. Whether the respondent is qualified for any relief? Assuming this is the case, its impact?
4. What relief are parties entitled to?
It might be seen that no issue as to supposed abandonment was demanded. As for the issue of cruelty, the Family Court reasoned that no proof had been directed to demonstrate the charges. The Court, in any case, held: "but it is proved that the respondent had deserted the petitioner, hence the petitioner will get or is entitled to for a decree of divorce". On valuation for proof drove for the situation, the Division Bench of the High Court held: "We also do not find any evidence that the wife has been treated with cruelty by the husband. We are also of the view that there is no evidence that petitioner is deserted."
The request was challenged by the respondent, where he argued that neither had he requested share nor his wife (appellant) has been tortured by him or his relatives. She was herself not ready to remain in the joint family and needed him to come and remain with her parents instead.
Judgement
Treating the applicant with cruelty is a ground for divorce under Section 13(1)(ia) of the Act. Cruelty has not been defined under the Act, yet according to marital issues it is mulled over as a lead of such kind which jeopardizes the living of the applicant with the respondent. Cruelty comprises of acts which are hazardous to life or wellbeing of a person. Cruelty with the end goal of the Act implies where one companion has so treated the other and showed such sentiments towards her or him as to have exacted substantially injury, or to have caused sensible anxiety of real injury, enduring or to have harmed wellbeing. Cruelty might be physical or mental. "Cruelty", in this manner, proposes a treatment of the person with so much pitilessness as to cause a sensible misgiving in their brain that it would be unsafe or damaging for the solicitor to live with the other party. Remorselessness, be that as it may, must be recognized from the customary mileage of family life. It can't be settled based on the affectability of the candidate and must be declared based on the course of direct which would, when all is said in done, be hazardous for a mate to live with the other. In the moment case both the preliminary court just as the High Court have discovered realities that the spouse had neglected to demonstrate the charges of brutality ascribed to the respondent. Simultaneous discoveries of actuality showed up at by the courts can't be upset by this Court in exercise of forces under Article 136 of the Constitution of India. In any case additionally the averments made in the request and the proof drove in help thereof plainly shows that the claims, regardless of whether held to have been demonstrated, would just show the affectability of the appealing party as for the lead of the respondent which can't be named more than normal mileage of the family life.
No declaration of separation could be conceded on the ground of renunciation without arguing and verification. Learned advice for the appellant party presented that even without explicit issue, the parties had proof and there was adequate material for the Family Court to restore a decision of desertion
There is another part of the issue which disentitles the appellant from looking for divorce on the ground of abandonment for this situation. As desertion in marital cases implies the withdrawal of one party from a situation, for example a conjugal status of the party, no party to the marriage can be allowed to claim renunciation except if the individual concedes that after the conventional functions of the marriage, the parties had perceived and released the basic commitment of the wedded life which basically requires to live together for the marriage. Living together by the parties is fundamental and substantial for the object of the marriage. As it were, there can be no renunciation without past living together by the parties. In any case, the parties divorcing on the ground of desertion is required to show that the person was not exploiting their own wrong.
No proof was given by the appellant party to show that she had to leave the respondent or that she was discarded from the matrimonial home or that she had to live independently and that the respondent had proposed animus deserendi. There is nothing on record to hold that the respondent had ever pronounced to finish the marriage or will not have living together with the appellant. As a mater of fact, the appellant is the one who surrendered the marital home and refused to live together with the respondent.
At this stage we would like to observe that the period of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. In a vast country like ours, the powers under the Act are generally exercisable by the District Court and the first appeal has to be filed in the High Court. The distance, the geographical conditions, the financial position of the parties and the time required for filing a regular appeal, if kept in mind, would certainly show that the period of 30 days prescribed for filing the appeal is insufficient and inadequate. In the absence of appeal, the other party can solemnise the marriage and attempt to frustrate the appeal right of the other side as appears to have been done in the instant case. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf.
There is no merit in these appeals which are dismissed with costs throughout.
Both the aforesaid revisions are hereby dismissed but the operative portion of the order of the Court below is modified to-the extent that the awarded maintenance of Rs. 300/per month that would be payable to the petitioner/wife only from 24-9-1988 up to 28-5-1997.Where after she solemnized her re-marriage with another person. The aforesaid arrears of the maintenance may be paid in installment, as directed in the impugned judgment, if the same has not yet been paid.
