KESHAORAO KRISHNAJI LONDHE Vs. NISHA KESHAORAO LONDHE

JUDGEMENT

(1.) Has Madanlal Sharma v. Smt, Santosh Sharma, 1980 Mah LJ 391, correctly laid down the law relating to "cruelty" as a ground for divorce as envisaged by section 13 (1) (i-a) of the Hindu Marriage Act, 1955 ("The Act" for short) is a point which needs answer in this reference to the Full Bench.

(2.) First of all, the factual background. Appellant Dr. K. K. Londhe, married the respondent Mrs. Nisha Londhe in the year 1950. The respondent is Christian by birth but she was converted to Hinduism and the marriage was performed according to Hindu rites. During the period of 16 years of marital life, the couple was blessed with three children. The marriage life unfortunately was unhappy. The respondent had gone to Bangalore sometime after May, 1966. In September, 1966, she gave a notice to the appellant for restitution of conjugal rights to which no response was given. She, therefore, filed a petition for custody of the children and also filed a civil suit for maintenance. In the year 1967, the appellant filed a petition for judicial separation under old section 10 (1) (b) of the Act on the ground of cruelty. The substance of the appellant's contention was that the respondent was uncultured, she entertained uncultivated ideas of behaviour and had not developed any emotional bond requisite for a happy married life. She was dogmatic, quarrelsome, selfish, arrongant and had no emotions of affection and love even towards the children. She obtained complete control over the financial situation of the family, insulted the appellant from time to time, exhibited inhuman behaviour towards the children, prevented the children from following Hindu religion, exhibited total lack of attention to the family affairs and gave threats to commit suicide and falsely alleged illegitimate relationship between the appellant and a nurse by name Chellamma. The respondent contended in defence that unhappiness in the family life crept in only when the appellant became unfaithful to her and got himself attached to Chellamma sometime in 1965 when he was serving a Medical Officer in the refugee camp at Chandrapur. She denied the allegations of cruelty.

(3.) The learned trial Judge came to the conclusion on evidence that the appellant had failed to prove such cruelty "as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party" as contemplated under old section 10(1) (b) of the Act. He further held that the petition was based on the ground of incompatibility and the examples given were of moral cruelty not contemplated under that provision and that unless the cruelty alleged is shown to have endangered appellant's health, no relief could be granted. He also held that the appellant was having illicit love affair with Chellamma and was leading an adulterous life. The petition was dismissed but the custody of the children was given to the appellant. Both parties filed an appeal which came to be dismissed by the Assistant Judge in the year 1971. Reliance was placed on the case of Dr.Narayan Dastane v. Mrs. Sucheta Dastane, 1969 Mah LJ 798 : AIR 1970 Bom 312, which had taken a view, as many other High Courts had taken, that cruelty contemplated under old section 10 (1) (b) meant legal cruelty as understood in English Law, namely, injury causing danger to life or limb or health or reasonable apprehension of such injury. The appellant filed the present second appeal in the year 1972. During the pendency of the second appeal, the Marriage Laws (Amendment) Act, 1976 (Act No 68 of 1976) was passed. It introduced drastic changes and obliged the Courts to decide pending petitions as if they had been originally instituted under the Act as amended. The Act No. 68 of 1976, inter alia, provided also for divorce on the ground of cruelty as mentioned in the amended provision, viz., section 13 (1) (i-a). The appellant sought an opportunity to amend the pleadings as contemplated under section 39 (2) of the Act No. 68 of 1976. This amendment claiming relief of divorce under the new provision was allowed by this Court and thereafter hearing commenced in the second appeal.