Case: Savitri Pandey Vs. Prem Chandra Pandey

marriage between the parties was solemnised on 6.5.1987. The appellant-wife lived with the respondent-husband till 21st June, 1987 and according to her the marriage between the parties was never consummated. After 21st June, 1987 the parties started living separately. The appellant alleged that her parents spent more than Rs. 80,000/- with respect to the ceremonies of the marriage and also gave several articles in the form of ornaments. Valuables, cash and kind as per demand of the respondent. The respondent and his family member allegedly made further demands of Colour. TV, Refrigerator and some other ornaments besides hard cash of Rs. 10,000/-. The father of the appellant obliged the respondent by giving him Rs. 10,000/.- in the first week of June, 1987 but could not fulfil the other demands of his parents. The respondent and his family members were alleged to have started torturing the appellants on false pretexts. Aggrieved by the attitude of the respondent and his family members, the appellant states to have filed a petition under Section 13 of the Act seeking dissolution of marriage by decree of divorce along with prayer for the return of the property and grant of permanent alimony. The respondent also filed a petition seeking divorce and grant of other reliefs. However, on 14.5.1996 the respondent filed on an application for withdrawal of his matrimonial case which allowed on 19.5.1996. The appellant had alleged that the respondent was having illicit relations with a lady residing in Gaya at Bihar with whom he was stated to have solemnised the marriage. The allegations made in the petition were denied by the respondent and it was stated that in fact the appellant-wife was taking advantage of her own wrongs.3. On the basis of the pleadings of the parties, the following issues wereWhether the defendant has treated the petitioner with cruelty? If so, it effect?2. Whether the petitioner is entitled to relief under Sec. 27 of the Hindu Marriage Act? If so, its effect?3. Whether the defendant is entitled to any relief? If so, its effect?4. To what relief, parties areIt may be noticed that no issue with regard to alleged desertion was insisted to be framed. With respect to the issue of cruelty, the Family Court concluded that no evidence had been led to proved the allegation. The Court, however, 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 appreciation of evidence led in the case, the Division Bench of the High Courtalso 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."

Reasoning:
Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(ia) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where on spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension or bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. 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 the be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife has failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly shows that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the familythe offence of desertion so far as deserting spouse is concerned, two essential conditions must be there (1) the factum of separation and (2) the intention to bring cohabitation permanently to an and (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts ofperiod 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.