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CASE NO.: Appeal (civil)  5779 of 2006

PETITIONER: Sujata Uday Patil

RESPONDENT: Uday Madhukar Patil

DATE OF JUDGMENT: 13/12/2006

BENCH: G.P. Mathur & A.K. Mathur

JUDGMENT: J U D G M E N T (arising out of SLP (C) Nos. 18502-18503 of 2004)

G.P. Mathur, J.

       Leave granted. 2.      These appeals, by the special leave, have been preferred against  the judgment and decree dated 9.3.2004 of Bombay High Court  (Aurangabad Bench) by which the second appeals preferred by the  appellant herein were dismissed and the decree of divorce passed by  the learned District Judge, Jalgaon, on 12.11.2002 was affirmed. 3.      The marriage of the appellant and the respondent was  performed on 1.3.1994 and a son Charul @ Chaitanya was born out  of the wedlock on 6.2.1995.  In the year 1999 the respondent  (husband) filed a petition for a decree of divorce against the appellant  (wife) under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act,  1955 on the ground that the appellant had treated him with cruelty  and had also deserted him for a continuous period of not less than two  years immediately preceding the presentation of the petition.  The  petition was contested by the appellant on various grounds.  The Joint  Civil Judge (Senior Division) passed a decree for judicial separation  on 10.12.2001.  The appellant and respondent both preferred appeals  against the said decree and the learned District Judge, Jalgaon, by the  judgment and decree dated 12.11.2002, dismissed the appeal filed by  the appellant and allowed the appeal filed by the respondent and  dissolved the marriage of the parties by a decree of divorce.  He  further directed that the respondent shall pay permanent alimony @  Rs.700/- per month to the appellant and @ Rs.500/- per month to the  son Charul @ Chaitanya.  The second appeals preferred by the  appellant against the decree passed by the learned District Judge were  dismissed by the High Court on 9.3.2004. 4.      The trial court held that the appellant behaved in a cruel  manner and did not cohabit with the husband; that the husband failed  to prove that the wife deserted him without any reasonable excuse and  that the appellant was ill-treated by the respondent and his parents.   On these findings the trial court came to a conclusion that the  respondent was not entitled for a decree of divorce but had made out a  case for judicial separation and a decree was accordingly passed.  The  learned District Judge, after a detailed discussion of oral and  documentary evidence on record, held that the wife had treated the  husband with cruelty; that she had deserted the husband for a  continuous period of not less than two years immediately preceding  the presentation of the petition and that there was no legal  impediment in granting the decree for divorce.  On these findings  decree of divorce was granted. 5.      The High Court in second appeal, after a careful consideration  of the submissions made by the learned counsel for the parties and the  material available on record, has recorded the following findings: -

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"After giving my thoughtful consideration the  submissions made by the counsel for the parties and also  having gone through the evidence recorded at the trial  and findings recorded by the courts below and reasons  assigned therefore, I am of the opinion that it was a case  where the wife was guilty of deserting the husband  without sufficient cause and the desertion was certainly  with the intention to put an end to the matrimonial  relations.  The trial court as well as appellate court have  rightly found that the wife was guilty of conduct  amounting to cruelty.  Here as rightly submitted by Mr.  Dixit learned counsel for the respondent, the act of  cruelty was pertinent and grave on account of police  complaints lodged against the appellant and his father  and that too during the period when the marriage of  respondents brother was settled.  It was in that  background that the wife voluntarily left the matrimonial  home and desertion on her part stood confirmed by the  fact that she lived separately for over two years and did  not make any efforts to come back to matrimonial home  for cohabitation.  The wife having failed to establish the  alleged acts of cruelty on the part of the husband, it is  needless to say that her leaving the matrimonial home  and cause separation was without sufficient cause.  .........  ...........................................................................................  As against that, one cannot lose sight of the fact that  wife, even after having lodged complaint against the  husband in police station, left the matrimonial home  happily without there being any remorse or repentance  and that too carrying all her belongings with her and  admittedly she did not return though a period of two  years lapsed and the husband issued notice seeking  divorce.  Therefore, the appellate court was right in  observing in his judgment that there was no condonation  of cruelty on the part of the husband and that there was  no reconciliation between the parties and that the  husband is not taking undue advantage of his own  wrong."  

Holding as above the High Court dismissed the second appeals filed  by the appellant and affirmed the decree of divorce passed by the  learned District Judge. 6.      Sub-section (1) of Section 13 of the Hindu Marriage Act, 1955  (hereinafter referred as ’the Act’) lays down the grounds on which a  marriage may be dissolved by a decree of divorce.  This sub-section  has  several clauses and under clause (i-a) cruelty and under clause   (i-b) desertion for a continuous period of not less than two years  immediately preceding the presentation of the petition, are grounds  for granting a decree of divorce.  The following observation made by  this Court in Reynolds Rajamani vs. Union of India AIR 1982 SC  1261, which is a case under Section 10 of the Divorce Act, throw  considerable light on the approach which should be adopted in  dealing with a provision relating to divorce: - "The history of all matrimonial legislation will show that  at the outset, conservative attitude influenced the  grounds on which separation or divorce could be  granted.  Over the decades a more liberal attitude has  been adopted, fostered by a recognition of the need for  individual happiness of the adult parties directly  involved.  But although the grounds for divorce have  been liberalized, they nevertheless continue to form an  exception to the general principles favouring the  continuation of the marital tie.  In our opinion, when a  legislative provision specifies the grounds on which  divorce may be granted they constitute the only

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conditions on which the Court has jurisdiction to grant  divorce.  If grounds need to be added to those already  specifically set forth in the legislation, that is the  business of the Legislature and not of the Courts.  It is  another matter that in construing the language in which  the grounds are incorporated the courts should give a  liberal construction to it.  Indeed we think that the courts  must give the fullest amplitude of meaning to such a  provision.  But, it must be meaning which the language  of the section is capable of holding."  

Therefore, a liberal approach has to be adopted in dealing with  various clauses of sub-section (1) of Section 13 of the Act and full  meaning should be given to the words used by the legislature. 7.      The word "cruelty" and the kind or degree of "cruelty"  necessary which may amount to a matrimonial offence has not been  defined in the Act.  What is cruel treatment is to a large extent a  question of fact or a mixed question of law and fact and no dogmatic  answer can be given to the variety of problems that arise before the  court in these kind of cases.  The law has no standard by which to  measure the nature and degree of cruel treatment that may satisfy the  test.  It may consist of a display of temperament, emotion or  pervasion whereby one gives vent to his or her feelings, without  intending to injure the other.  It need not consist of direct action  against the other but may be misconduct indirectly affecting the other  spouse even though it is not aimed at that spouse.  It is necessary to  weigh all the incidents and quarrels between the parties keeping in  view the impact of the personality and conduct of one spouse upon  the mind of the other.  Cruelty may be inferred from the facts and  matrimonial relations of the parties and interaction in their daily life  disclosed by the evidence and inference on the said point can only be  drawn after all the facts have been taken into consideration.  Where  there is proof of a deliberate course of conduct on the part of one,  intended to hurt and humiliate the other spouse, and such a conduct is  persisted, cruelty can easily be inferred.  Neither actual nor presumed  intention to hurt the other spouse is a necessary element in cruelty. 8.      We have carefully considered the findings recorded by the  learned District Judge and also by the High Court and in our opinion  they are fully born out from the material on record and cannot be  faulted with on any ground.  Therefore, the decree for divorce has to  be maintained. 9.      There is another aspect of the case which has a serious bearing  on the outcome of the litigation.  It is averred in the counter affidavit  filed by the respondent that after the decree of divorce had been  granted by the learned District Judge on 12.11.2002 he married one  Manisha Patil on 11.1.2003 and a daughter Sejal Uday Patil was born  out of the said wedlock.  In the rejoinder affidavit filed by the  appellant it is averred that immediately after the judgment was  delivered by the learned District Judge, an application for certified  copy of the judgment was given and thereafter a notice by registered  post was sent to the respondent on 11.1.2003 that she was taking steps  to file a second appeal in the High Court and this notice was served  upon the respondent on 14.1.2003.  The second appeals were filed in  the High Court on 21.1.2003 and it was thereafter that the respondent  married Manish Patil on 25.1.2003.  It may be mentioned here that at  the relevant time Section 28 (4) of the Hindu Marriage Act provided a  limitation of 30 days for filing an appeal against all decrees made by  the court in any proceeding under the Act.  This provision has been  amended by Marriage Laws (Amendment) Act, 2003 on 23.12.2003  and now the period of limitation for filing an appeal is 90 days.   Therefore, when the respondent entered into wedlock with Manisha  Patil, the period of limitation for filing the appeal against the decree  of divorce granted by the learned District Judge had expired and no  order staying the decree had been obtained by the appellant.  We may  clarify here that it should not be understood that this Court is

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expressing any opinion regarding the validity or otherwise of the  second appeals which were filed by the appellant before the High  Court.  However, the fact remains that the respondent has married  again and he has a child from the second wedlock. 10.     Matrimonial disputes have to be decided by courts in a  pragmatic manner keeping in view the ground realities.  For this  purpose a host of factors have to be taken into consideration and the  most important being whether the marriage can be saved and the  husband and wife can live together happily and maintain a proper  atmosphere at home for the upbringing of their offsprings.  This the  court has to decide in the fact and circumstances of each case and it is  not possible to lay down any fixed standards or even guidelines. 11.     In the case in hand it is an established fact that the respondent  has married again and has a child from the second wife.  In such  circumstances even if the decree for divorce granted by the learned  District Judge which has been affirmed by the High Court is set aside,  as prayed by the appellant herein, no useful purpose would be served.   The appellant cannot possibly live with the husband in such a  scenario nor it will be conducive to the upbringing of her son Charul  @ Chaitanya.  The learned District Judge has mentioned in the  judgment that he made serious efforts for reconciliation and talked to  the parties in arriving at an amicable solution but the respondent was  reluctant to take back the appellant on account of strained relationship  and at the same time the appellant, who refused to give divorce to the  respondent, was not firm as to whether their union would bring about  happy reunion.  He has further mentioned that he suggested to the  parties to take some unanimous decision keeping in mind the future  of their son Charul @ Chaitanya but they failed to come to any such  decision.  The case was adjourned several times in this Court also to  enable the parties to arrive at a settlement but it did not bring about  any fruitful result. 12.     The appellant had filed an application in this Court claiming  Rs.6,000/- towards maintenance.  A reply has been filed by the  respondent and paragraph 4 thereof reads as under: - "4.     It is submitted that the petitioner in her application  has pointed out that the respondent is holding  agricultural land gut No. 34 admeasuring 24 are, gut No.  380/2 admeasuring 96 are and a residential house  admeasuring 45/12.5 feet situated at Shevge, Tehsil- Pachora, District Jalgaon.  It is submitted that the said  properties are joint family properties and same are not  the independent properties of the respondent.  However,  with consent of father and brother towards full and final  settlement I am ready to give all the three aforesaid  properties to the petitioner and son Charul in lieu of the  maintenance subject to withdrawal of all the proceedings  and orders obtained by the petitioner against respondent  in various courts below."

In para 5 of the reply it is averred that the learned District Judge has  directed the respondent to pay Rs.700/- per month to the appellant  and Rs.500/- per month to the son Charul @ Chaitanya as  maintenance as per the provisions contained in Section 25 of the Act.   In special civil suit No. 88 of 2000 filed under the Hindu Adoption  and Maintenance Act the trial court has directed the respondent to pay  Rs.1,000/- per month as maintenance for son Charul @ Chaitanya in  addition to the aforesaid amount.  Apart from above an ex-parte order  has also been passed in proceedings under Section 125 of Criminal  Procedure Code wherein the respondent had been directed to pay  Rs.1,000/- per month to the appellant and Rs.800/- per month to the  son Charul @ Chaitanya.  It is also averred that a criminal case has  also been instituted by the appellant against the respondent under  Section 494 of Indian Penal Code. 13.     We are of the opinion that the offer made by the respondent  regarding giving of some immovable properties to the appellant and

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her son Charul @ Chaitanya in lieu of maintenance may not be  workable and may create complications, specially in view of the fact  that the respondent has asserted the said properties to be the joint  family properties and there is no such enforceable document on  record by which the consent of the father and other brothers may be  clearly and unequivocally accepted.  We, therefore, consider it proper  that the respondent should pay a lump sum amount to the appellant,  interest income whereof may be enough for her maintenance and also  that of her son Charul @ Chaitanya.  It has come on record that the  appellant is living with her father and she is working as a teacher in  some school where she is getting Rs.2,000/- per month.  The  respondent is working as a Junior Engineer in Municipal Corporation  of the city of Jalgaon.  Though he has produced a salary certificate  wherein his basic salary is shown to be Rs.2,360/- per month and  gross salary as Rs.8,423/- but the same has been seriously challenged  by the appellant on the ground that the respondent has not opted for  the grade which is payable in accordance with the recommendations  of Fifth Pay Commission and is deliberately drawing salary in a lower  grade.  However, we do not want to enter into this controversy.  In  our opinion, payment of a lump sum amount of rupees eight lakhs by  the respondent to the appellant would meet the ends of justice.   14.     In view of the discussion made above the appeals are disposed  of in following terms: - (i)     The decree of divorce passed by the learned District Judge on  12.11.2002 is affirmed.   (ii)    The respondent is directed to pay a lump sum amount of rupees  eight lakhs to the appellant as maintenance for herself and her  son Charul @ Chaitanya.  The respondent is granted three  months time to pay rupees four lakhs and the balance in the  next three months and thus the entire amount should be paid  within six months.   (iii)   The proceedings initiated by the appellant or by her son against  the respondent under (a) The Hindu Adoptions and  Maintenance Act, (b) Section 125 of Code of Criminal  Procedure and (c) criminal case under Section 494 IPC shall  remain suspended for a period of three months and if the  amount is paid as indicated earlier, for a further period of three  months.   (iv)    After the entire amount of rupees eight lakhs has been paid by  the respondent to the appellant, the proceedings of the cases  instituted under Section 125 Cr.P.C. and Section 494 IPC shall  stand quashed and the proceedings under Section 18 of the  Hindu Adoptions and Maintenance Act shall be abated.   (v)     If the sum of rupees eight lakhs is not paid by the respondent to  the appellant as indicated above, it will be open to the appellant  to execute the decree and recover the said amount from the  respondent in accordance with law.