PRITI PARIHAR Vs. KAILASH SINGH

JUDGEMENT

(1.) THIS is a special appeal u/s 18 of the Rajasthan High Court Ordinance, 1949 directed against the order of a learned Single Judge of this Court dated 13-3-1974, in a matrimonial matter. The husband has instituted a petition for Judicial separation on the ground of desertion and cruelty. After a protracted contest in the Court of the learned District Judge as well as in this Court several issues were framed out of which two are material for the purposes of this appeal. These are issues read: "4. Whether the petition discloses a cause of section for judicial separation? 5. Whether the petition is not in proper form as provided in the Hindu Marriage Act and the rules made there under and if so, to what effect?" The learned District Judge heard the learned counsel for the parties and by a detailed order dated January 1, 1974 decided both the issues against the wife Dis-satisfied, she came to this Court and the learned Single Judge by his order dated March 13, 1974 dismissed the appeal summarily.

(2.) LEARNED counsel for the appellant urges that as required by rule 801 E (f) of the Rajasthan High Court Rules, 1952 the necessary particulars for the matrimonial offences have not been given in separate paragraphs. The material sub-rule reads - "801-E (1) the matrimonial offence or offences charged set out in separate paragraps with the time and place of its or their alleged commission. " So far as desertion is concerned, the learned District Judge held that it is alleged by the petitioner to have commenced on November 7, 1969. In our opinion no other date is material in the circumstances of this case. So far as cruelty is concerned, we regret, we are unable to agree with the observations of the learned Single Judge when he says: "as already stated above, judicial separation has been claimed on the ground of mental besides desertion, and the learned counsel has failed to point out whether an allegation of mental cruelty cruelty is a matrimonial offence. In my humble opinion it is not. " 'matrimonial offence' is a convenient judicial phrase with which matrimonial lawyers are fairly familiar. In our opinion, the learned Single Judge was in error when he said that mental cruelty is not a matrimonial offence. Cruelty has been defined in the classic judgment of Russell vs. Russell (1895) Probate Division p. 315, - "cruelty which is a ground for dissolution of marriage may be defined as wilfal and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such ad anger. " It includen action or omission which injures the susceptibilities of the effected spouse and causes him or her mental agony to which the sufferer alone can state. In view of the time honoured definition of cruelty, mental cruelty is undoubtedly a matrimonial offence. We are supported in our opinion by the observations in Richardson vs. Richardson (1949) 2 All. E. R. 330 wherein Bucknil L. J. has observed - "a matrimonial offence seems to me to mean an offence against the vows of amrriage. The vows of marriage are well known. Desertion is certainly one offence, and cruelty as defined by the law is another. "