BINA RANI BANIK Vs. PRADIP KR BANIK

JUDGEMENT

(1.) This appeal arises out of a matrimonial proceeding. The wife is the appellant. A Suit being Title Suit (D) No. 13 of 1993 was filed before the learned District Judge at Nowgong and the learned District by judgment and decree dated 7.7.94 granted a decree of divorce.

(2.) I have heard Smti K. Deka, learned Advocate for the appellant and Smti A. Hazarika, learned Advocate for the Respondent. The parties were married on 9.7.85. Out of this wed-lock a child was born on 25.1.86. But the said child died on 25.3.87. The Respondent is an employee of the Railway and he is a Junior Clerk under Railway. This application of divorce has been filed on the ground of cruelty. Section 13 of the Hindu Marriage Act, 1955 provides three grounds for dissolution by a decree of divorce and Section 13( 1) (ia) provides that a decree of divorce may be granted where the either party after celebration of marriage treated the petitioner with cruelty. That the Clause (ia) and (ib) were added to sub-section (1) whereunder cruelty and desertion were made grounds for obtaining divorce prior to 1976. The grounds mentioned in Clauses (ia) and (ib) were grounds only for judicial separation under Section 10 with a slight difference in wording. Thereafter they were incorporated as grounds for divorce. The object of the amendment of some of the provisions in the original Section 13 are amongst others to liberalise the provisions relating to divorce. The expression cruelty is not defined in the Act. Interpreting Section 10(1)(b), the Supreme Court observed in Dastane-Vs-Dastane, AIR 1975 Supreme Court 1534, that it is not necessary that the cruelty must be of such a character as to give, rise to a reasonable apprehension as to life and danger to limb as laid down by the English decision. The Supreme Court further observed that harm or injury to health, reputation, the working career or the like would be an important consideration to know/ascertain whether the Respondent's conduct amounts to cruelty. The Courts have to see whether the petitioner proves that the respondent has treated him/her with such cruelty as to cause reasonable apprehension in the mind that it will be harmful or injurious to the petitioner. This aspect of the matter was considered by the Punjab High Court in AIR 1985 Punjab And Haryana 199 (Kamalesh-Vs-Parasar) and also by the Full Bench of Bombay High Court in 1984 Bombay 413 and the Bombay High Court laid down the law that the cruelty contemplated under Section 13(1)(ia) of the Act neither attract the old English doctrine of danger nor the statutory limits embodied in old Section 10( 1) (b) cruelty contemplated is a conduct of such type that the petitioner cam not reasonably be expected to live with the Respondent. The amendment was made on the basis of the 59 Report of the Law Commission which was prior to Dastane's case to the effect that it is sufficient to prove cruelty as a ground for divorce and leave it to the court on the facts of its case whether the conduct amounts to cruelty. They also pointed out that even in England, the principle laid down in Rushel-Vs-Rushel was abandoned in the Matrimonial Causes Act, 1973. After amendment as pointed above, the object was stated to be to liberalise the provisions relating to divorce. The Courts have to interpret, analyse and defined what would constitute cruelty in a given case depending on many factors, such as, family status, background, customs, tradition, caste and community, up-bringing, public influence prevailing in the areas etc. Cruelty should be of the type as to usually satisfy the conscience of the Court whether the relationship between the parties deteriorated to such an extent that it has become impossible for them to live together without mental agony, torture and distress. Court should make an assessment of human nature and human affairs and the picture of domestic live of the spouses to be surveyed as a whole before forming a judgment of their possible future relations. Cruelty may be both mental and physical. It is in this background now let us have a look to the matter.

(3.) Cruelly as ground for divorce, consists of unwarranted and unjustifiable conduct on the part of one spouse causing other spouse to endure suffering and distress, thereby destroying peace of mind and making living with such spouse unbearable, completely destroying real purpose and object of matrimony. If a person by his own conduct creates a situation, where he is reasonably expected to face some consequence, actions leading to that consequence can not be deemed to be cruelty. Pursuing a legal remedy for the protection of the limb/body of a person can not be cruelty, acquittal in such a case is relevant only when the Court/authority comes to a finding that it is false, frivolous, vexatious or malicious. Otherwise a person shall be deterred from pursuing a legal remedy, as it is the common experience that many of prosecutions and in acquittal, the rate of conviction in India being on the low side. In the case of a perfect couple (which is difficult to find) or a reasonable couple certainly it is not expected that one shall institute a criminal prosecution against the other. But the question is whether instituting a prosecution or setting the ball in motion for prosecution per se will amount to cruelty. If such a course is absolutely not warranted or justified the answer may be in the positive, but otherwise the matter requires scrutiny to find out whether the Court is satisfied that allegation of cruelty has been brought home on that count. Applying the yardstick/touchstone I find that in the instant case cruelty has not been established because of launching persecution by the wife against the husband.