PRABHASH SAXENA Vs. RANJANA SAXENA

JUDGEMENT

(1.) Marriage and sonship constitute some of the unique chapters in the litera legis of ancient Hindu law. As early as the time of Rig-Veda, marriage had assumed a sacred character of a sacrament and sanction of religion had heightened the character and importance of the institutional marriage. The basal thought was that marriage was a prime necessity for that alone could enable a person to discharge properly his religious and secular obligations. The smritis deal with the subject of marriage with meticulous care and make fascinating study. Manu expounded the subject so also many other smritikaras and commentators. Marriage is necessarily the basis of social organisation and the foundation of important legal rights and obligations. The importance and imperative character of the institution of marriage needs no comment. In Hindu Law, marriage is treated as a smaskara or a sacrament. It is the last of ten sacraments, enjoined by the Hindu religion for re-generation of men and obligatory in case of every Hindu, who does not desire to adopt the life of a sanyasi. These lofty ideals and principles have been highlighted in Mullah's Hindu Law (See the Seventeenth Edition).

(2.) Divorce, however, is a thorny question. Hindu Law, strictly so called, did not allow divorce except in certain communities, in the lower social strata, where it was permitted by custom; and there was deep-rooted sentiment against any provision for divorce in the new legislation, which was being forged. It may be of some interest to note that some of the smritikars, although they did not deal with divorce in the sense, it is now understood did declare that a woman could take a second husband in certain events. The celebrated test of Narada is "if the husband be missing, or dead, or retired from the world, or impotent, or degraded, in these five calamities a woman may take another husband." But the Hindu Marriage Act, 1955(in short,the Act')statutorily provides for divorce,on nine grounds enumerated in Section 13(1), and two more grounds are also provided in Section 13(1A). These grounds are available to both the parties to the marriage. In addition, a wife has been given four other grounds on which dissolution of marriage by a decree of divorce can be sought for. One of the grounds available to both parties to a marriage is 'cruelty'. That is the ground on which the appellant herein, the husband, had filed an application for a decree of divorce. The same was resisted by the respondent wife. While the Trial Court accepted the plea for divorce, the same was upset by learned Single Judge. Challenging the order of learned Single Judge, this appeal under the Letters Patent has been filed.

(3.) The husband alleged cruelty both physical and mental. It is to be noted that cruelty per se was not a ground for relief by way of divorce prior to the amendment of Section 13 by the Amending Act of 1976, but was only a ground for relief of judicial 'eparation under Clause (b) of Section 10(1) of the Act. The legal conception of cruelty and the question of decree of divorce on the ground of cruelty necessary to constitute matrimonial offence has not been defined by any Statute. The danger of any attempt at giving a comprehensive definition that may cover all cases has been noted by various Courts. The expression 'cruelty' is rather difficult to define, but broadly speaking, it is stated to be a 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 danger. (See Russell v. Russell, (1897) AC 395).