SAVITRI PANDEY V. PREM CHANDRA PANDEY AIR 2002 SC 591
Author-Nidhi Nande, Symbiosis Law School, Pune
ABSTRACT
Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, respect, care, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform for social norms as well.
Earlier it was difficult for people to accept the dissolution of marriage as it was considered one of the most sacred relationship and divorce which in general implies the breakage of the marital tie and becoming free from marital duties. The common notion was that marital tie cannot be severed even if the biggest hurdle arise or death comes[1].But this also does not mean that divorce was altogether unknown to India as customary laws did recognize the concept of divorce. Baroda was the first state to introduce legislation for divorce in Hindu religion in 1971[2]. However with the enactment of Hindu marriage Act, 1955 such scenario was changed.
Among various grounds provided for the divorce under Hindu Marriage Act, 1955, the two which will be discussing here are cruelty and desertion. It is very important for us to understand that not every wear and tear, annoyance and quarrels in the normal course of marital life creates the ground for divorce. The interpretation of cruelty has gained a wider interpretation over these years. It essentially means willful and unjustifiable conduct of such character as to cause danger to life, limb or health[3] but its scope is not limited to physical cruelty alone, mental cruelty also is a recognized ground for divorce[4] whereas desertion can be viewed as synonym to terms like abandonment, forsaking, relinquishment, abstinence, refraining from marital obligations, total repudiation, separation, renouncement and other such terms. It is not the withdrawal from a place, but from a state of things.”[5]
CASE ANALYSIS
NAME OF THE CASESAVITRI PANDEY V. PREM CHANDRA PANDEY AIR 2002 SC 591DECIDED ON
08.01.2002
HON'BLE JUDGES/CORAMR.P. SETHI AND Y.K. SABHARWAL, JJ. |
A. Facts -
· The parties were married according to the Hindu Marriage customs and rites on 06.05.1987. The appellant-wife lived with the respondent-husband till 21.06.1987 without having consummated their marriage.
· The appellant alleged that even after spending Rs. 80,000/- in the marriage and giving several gifts in cash as well as kind to the in laws, they demanded for more and more regularly.
· The appellant also alleged that due to non-fulfillment of their demands, the respondents and his family members started torturing the appellant on false pretexts.
· This attitude of her in-laws aggrieved the appellant which led her to file a petition under Section 13 of the Act seeking dissolution of marriage by a decree of divorce praying for permanent alimony and return of the cash and kind demanded by them.
B. Procedural History of the Case-
· FAMILY COURT- The case was initially filled under family court which gave the decision in the favor of the appellant and allowed the dissolution of marriage in the grounds of desertion by the husband and also granted permanent alimony along with some return amount demanded by the respondent and his family but no evidence was available to prove for cruelty.
· HIGH COURT- Since neither of the parties was satisfied by the decision of the family court, an appeal was filled in the High Court to increase the amount paid in the appellant’s side and the decree of dissolution from the respondent’s side. But the High Court set aside the appeal saying the wife was the defaulting party.
· SUPREME COURT- The current appeal is filled under the supreme court of India to solve the conflict and decide the point of case according to the law.
C. Issues-
1. Whether Cruelty and Desertion as grounds for divorce applicable in the present case.
2. Whether the petitioner is entitled to relief under Section 27 of the Hindu Marriage Act.
D. Analysis of the judgment
1. Cruelty as a ground for divorce
· Cruelty under section 13(1)(ia) is considered as a sufficient ground for divorce under Hindu Marriage Act,1955 after the amendment of 1976 but before this it was only a ground for judicial separation. This was upheld by the Supreme Court case of Dastane v Dastane[6].
· Although Cruelty has not been defined anywhere in the act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of either of the spouse with the other. Cruelty consists of acts which are dangerous to life, limb or health of a person. Cruelty could also be established if the conduct itself is proved or admitted.[7] In the present case there were no harsh or painful conduct[8] on the part of the respondent for a relatively prolonged duration and even the circumstances did not sufficiently prove cruelty.
· Even mental cruelty is accounted as “cruelty” which gives a wider interpretation[9] to the law as postulates a treatment of either of the spouse with such cruelty so as to cause a reasonable apprehension in the other’s mind that it would be dangerous or injurious for him/her to live with the other party and cause mental suffering.[10] In the present case cruelty was distinguished from mere wear and tear of family matters and it was head that it cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.
· Thus Cruelty as a ground for divorce was not accepted by the Supreme Court.
2. Desertion as a ground for divorce
· Desertion refers to abandonment of either of the spouse with an intention to end marital relations. Under the Hindu law, section 13 (1) (ib) of the Hindu Marriage Act, 1955 mentions desertion as a ground for divorce Desertion in order to be a valid ground for divorce means the deliberate permanent abandonment of one spouse to the other without that other’s consent and without reasonable and just reason. In other words, it is an absolute repudiation of the obligations of marriage[11].In the present case reliance was placed on Jiansingbhai Shah v. Prabhavati[12] which provided that two condition needed to be fulfilled to establish desertion- a factum of separation and animus deserendi and they must co-exist.
· One of the most essential elements to prove desertion is a Factum of separation which means one of the spouses has withdrawn from the married life and is living separately.[13] Ceasing to engage in sexual intercourse without even having a just cause does not constitute desertion. But a significant abandonment of marital duties results in practical destruction of marital life making the party guilty of desertion. In the present case it was held that there had not been cohabitation between the parties after the marriage. She neither assigned any reason nor attributed the non-resumption of cohabitation to the respondent. Another important element to prove desertion is animus deserendi, that is the intention to desert or end matrimonial relations and it must exist from the beginning. There should not be any conflict in the intention with respect to the grounds alleged like in the case of Prakash v Kavita[14] where sections of IPC were alleged along with asking restitution in the divorce case under cruelty and desertion. In the present case there has been no evidence to show that she was forced to leave the company of the respondent or that she was thrown away from the matrimonial home or that she was forced to live separately and that the respondent had intended animus deserendi. There is nothing on record to hold that the respondent had ever declared to bring the marriage to an end or refuses to have cohabitation with the appellant. As a matter of fact the appellant is proved to have abandoned the matrimonial home and declined to cohabit with the respondent thus forbearing to perform the matrimonial obligation.
· Efforts on the part of deserting spouse for reconciliation are another important factor to determine the intent of desertion. In the present case there were no efforts from either of the spouse to reconcile their marital life.
· Another two conditions are also needed to prove taking into consideration the deserted spouse- the absence of consent and the absence of reasonable cause for the deserting spouse to form such intention or to abandon. The cause should be reasonable enough to appeal the court and be proved beyond reasonable doubt.[15] In the present case the appellant has remarried and begotten a child which forms a reasonable cause for the husband to desert and ask for divorce.[16]
· Taking into consideration the non-applicability of any of the elements which are necessary to prove desertion as a ground for divorce, it was held by the court that in the present case divorce cannot be given on the ground of desertion.
3. Entitlement to relief under section 27 of the Hindu Marriage Act, 1955
· Section 27 specifically talks about the disposal of the property which are jointly held by both the spouses and it is well settled principle of law that the jurisdiction of court created special powers[17] for the family court to adjudicate upon any questions relating to the properties of divorced parties.[18]
· The grant of relief by the court depends on the satisfaction of certain conditions given under Section 23(1) of the Hindu Marriage Act, 1955. One of the major conditions provides that one should not be allowed to take advantages of his/her own wrong[19]. In the present case the appellant engaged into another marriage and also gave birth to a child with the second marriage. Therefore the court held that no relief could be granted as a person should not be allowed to take advantages of its own wrong doings.
4. Ruling
· The Supreme Court held that there is no merit to the appeal as neither of the two grounds was satisfied for the divorce, also no relief was granted as a person should not be allowed to take advantages of its own wrong doings.
· Thus the appeal was dismissed.
THE APPROACH OF LEGISLATURE ON THE ISSUE
Divorce is among one of the most traumatic and long time process as far as the laws in India are considered, though it is reasonable as the martial tie in India is considered so sacred that normal wear and tear in the living cannot grant divorce to any couple unless there are enough and reasonable grounds for the same. The laws of divorce in India are based on personal laws and are connected to religion. The area of concern in our analysis is the divorce for Hindus, Buddhists, Sikhs and Jains which is governed by Hindu Marriage Act, 1955. Divorce is provided under Section 13 of the Hindu Marriage Act, 1955 which states that any marriage can be dissolved by a decree of divorce on any of the grounds which are provided under the section whether the marriage is solemnized before or after the commencement of the act. The area of concern in our case related to two of the main topics that are cruelty and desertion which are death in section 13(1) (ia) and 13 (1) (ib).
A. THE PROVISION OF CRUELTY AS A GROUND: A SWORD OR A SHIELD
Cruelty in the today’s scenario is the most used ground for divorce under the Hindu Marriage Act. Although the section does not properly defines the term cruelty, it can be referred from various precedents as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger.[20] Cruelty is the res gestae[21] that adverse affects on the mental and physical health, social status and life style of the other party. The expression of cruelty under section 13 clearly admits in its ambit and scopes such acts which may even cause mental agony to aggrieved party.[22] The debate still rests in the question that whether the widely drafted provision of the law for cruelty as a ground makes it a sword for the people or a shield.
B. DESERTION: A PRAGMATICAL VIEW
Desertion can be elementarily defined as the negation of the marital relation to live with each other which is the nitty-gritty of a matrimonial tie, provided it is indefensible and then it forms a ground for matrimonial relief and this is the same sense which is incorporated under the provisions of Hindu Marriage Act, 1955. The provision for desertion provides various essentials which are needed to be satisfied to prove desertion as a ground for divorce which are- the fact of separation, the intention to desert[23], desertion without any reasonable cause, desertion without the consent of the applicant, desertion continues for two years but in the practical scenario divorce will not be granted if the petitioner is found to be guilty or if the conduct of the respondent having deserted the petitioner is well justified. The plain and simple rule of “who is guilty” would be taken.
PROVISIONS AND JUDICIAL ACUMEN
A. CRUELTY
It began from 1975 that Indian Judiciary had to peep in the life of the spouse to find out the meaning of cruelty. There is no doubt in the fact that apart from the laws and religious texts, the precedents provided by the judiciary hold a major part in the family law for divorce. It is not surprising that Indian judiciary apart from giving reasonable practical solutions have also included philosophical texts considering the sanctity of marital ties. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage.[24] Following are some of the judgments which added new dimensions to the provision for cruelty-
· Poonam Gupta v. Ghanshyam Gupta[25]- Due to the criminal complaint filed by the wife, the husband and his family members remained in jail which constitutes cruelty ground for divorce.
· Mrs. Deepalakshmi Saehia Zingade v Sachi Rameshrao Zingade[26]- In this case wife filed a case against her husband on the ground of husband having illegitimate affair with another girl which is proved as false in a court of law so it can be considered as cruelty against husband.
· Mamta Namdeo v Ghanshyam Bihari Namdeo[27]- Cruelty of a spouse can be condoned by the acts of the other spouse and negate the ground of cruelty of the spouse.
· Nalini Sunder v. G.V. Sundar[28]- In order to constitute mental cruelty facts are not to be seen in isolation, whole circumstance has to be looked upon.
· S. Hanumantha Rao v. S. Ramani[29]- Removal of mangalsutra by wife at the instance of her husband does not amount to mental cruelty.
· Yudhishter Singh v. Sarita[30] -asking his wife to stay in the matrimonial house and himself living separately amounts to cruelty.
B. DESERTION
The Indian Judiciary has taken a step forward on the touchstone of human and fundamental rights to protect the spouse by the provisions of desertion under Hindu Marriage Act, 1955. The court therefore takes a progressive interpretation to look into the guilt of the either spouse instead of going solely to the words of law. Following are some of the cases which gave a different view to the law on desertion-
· Bhargav Shukla v. Chhayaben Shukla[31]- it is the party by whose conduct cohabitation comes to an end is guilty of desertion and not the party who has withdrawn from the marital home.[32]
· Shyam Sunder Kohli v. Sushma Kohli [33]- marriage could not be dissolved on the mere ground of it being broken irretrievably, had desertion been proved then still divorce could have been granted but, that is not the case now.
· Lakkaraju Pradma Pria v. Lakkaraju Shyam Prasad [34]- if only the factum of separation exist and because of absence of any intention it cannot be desertion.
· Geeta Jagdish Mangtani v. Jagdish Mangtani[35] – low income of the husband is not a reasonable ground for the wife to desert and if she does desertion can be alleged.
CONCLUSION
There exists a co-relation between legal change and social change. Law cannot be understood without social facts which gave birth to it. The matrimony plays a significant role in the social set-up of a nation. It is the basis of the institution of marriage which signifies a complete physical, mental and spiritual union of man and woman as husband and wife to establish a family. So although the judicial trend is shifting but yet the goal is quite far, whereas is family law matters conciliation is a better serving method than adversarial type of litigation. Rather litigation in respect of any matter concerning family, whether, divorce, maintenance and alimony or custody should not be viewed in terms of failure or success of legal action but as a social therapeutic problem. It should not be viewed as litigation in which parties and their counsel are engaged in winning or defeating but as a social problem needing solution.
SUGGESTIONS
From all the above discussions on the concept of divorce it can be seen that there are two facets of the coin- one where women in the rural areas are suffering the ill- treatment of the in-laws and the other where the law is twisted and turned and misused by both men and women. The legislature as well as the judiciary should consider both the facets of the coin to come up with a solution which would ensure justice to all and injustice to none. In the view of above observation it is submitted that the learned judges though appreciate the fine nuances of human life but fail to see the whole issue in large perspective. While expediency demands that no marriage which has completely lost its sanctity and fervor should be kept in vegetative existence, nonetheless, caution and fairness demand that irretrievable breakdown as a ground should not become an agent of offence to be misused to the detriment of the innocent and the ignorant. Also it cannot be ignored that the laws of marriage and divorce in its pragmatic application under Hindu Law are more women-centric which necessarily needs a reform. In this day and age we have to give a new look to the jurisprudence of divorce as the modern day society looks marriage differently. In Indian society divorce has traditionally been looked as a stigma, a thing not done, whereas in western societies it is an accepted part of life, we would have to shift our focus as to what is the purpose of good divorce law.
[2] The Baroda Hindu divorce act 1931 referred in report of Hindu Law commission(1947) page 27 para 109-110
[3] Maya Devi v. Jagdish Prasad, AIR 2007 SC 1426
[4] Vishwanath Agrawal v. Sa Sarla Vishwanath Agrawal, [2012] 7 SCR 607
[6] AIR 1975 SC 1534
[7] Shobha Rani v Madhukar Reddi, AIR 1988 SC 121 and A. Jayachandra v Aneel Kaur, 2005(2) SCC 22.
[8] Harsh or painful conduct of the other spouse was interpreted from the case of Mayadevi v Jagdish Prasad, AIR 2007 SC 1426
[9] Samar Ghosh v Jaya Ghosh, (2007) 4 SCC 511
[10] Bhagat v Bhagat AIR 1994 SC 710
[11] Desertion as a ground for divorce , at ( 22nd July 2019) ,
www.lawweb.in/2013/01/there-can-be-no-desertion-without.html
www.lawweb.in/2013/01/there-can-be-no-desertion-without.html
[13] Durga prasan Tripathi v Arundhati Tripathi, AIR 2005 SC 297
[14] AIR 2008 RAJ 111
[15] See Geeta Mangtani v Jagdish Mangtani, AIR 2005 SC 3508, Financial insecurity is not a reasonable ground for desertion, also see Damyanti Devi v Pavitra Mohan, AIR 2005 OR 264, second marriage a good ground for desertion.
[16] Damyanti Devi v Pavitra Mohan, AIR 2005 OR 264
[17] K A Abdul Jaleel v T.A. Shahida, AIR 2003 SC 369
[18] Balkrishna Ramchandra Kadam v Sangeeta Balkrishna Kadam, AIR 1997 SC 3562
[19] Hirachand Srinivas Mangaonkar v. Sunanda AIR 2001 SC 285
[21]As per the definition of Oxford Dictionary- The events, circumstances, remarks which relate to a particular case, especially as constituting admissible evidence in a court of law.
[23] Sanghamitra Singh v. Kailash Chandra Singh, AIR 2001 Ori 151
[24] Smt. Mayadevi Vs. Jagdish Prasad : A.I.R. 2007 SC 1426
[26] AIR 2010 Bom 16
[27] AIR 2013 Chh 89
[32]Sarin Advocate, Desertion as a ground for divorce, (July 24, 2019, 10.04 pm), https://sites.google.com/site/sarinadvocate/family-court/hindu-marriage-act-1955/
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