No doubt that now (sic) has been repealed but at the same time we must bear in mind that the concept of cruelty is a matrimonial offence and the legislatures had tagged a caveat to the effect that it has to be interpreted and applied in each case on the basis of the particular facts of that case. A bare allegation of cruelly without anything concrete is certainly not sufficient to snap the tie of marriage. The learned Judge has found in his judgment that because of the living as husband and wife, the respondent/wife conceived and 'ultimately there was a abortion. The learned Judge has found in the judgment as follows :
"The admitted incident of insult by the responent was nothing but an attempt by here to live in the matrimonial home. She got a pleader's notice issued on the petitioner directing him to take her back. Ail these show her willingness to go and live in the matrimonial home. The petitioner does not dispute the fact of the abortion alleged by the respondent, but he is very categorical on the point he was riot the cause of it.' In fairness to the petitioner, it must be said that he has no grievance against the character of the respondent. If the character is not bad then pregnancy must have been by the petitioner. Thus the claim of want of sexual contact which he regards as the basis of cruelty is also defeated by his own pleadings."
Gauhati High Court
Gouri Shankar Chakravarty vs Smt. Basana Roy on 24 July, 1998
Equivalent citations: II (1998) DMC 630
1. An application was filed for dissolution of the marriage by the husband under Section 13 of the Hindu Marriage Act, 1955. The marriage look place on 30-7-87 and it was a marriage registered under the Hindu Marriage Act, 1955. The marriage was registered at Faridabad, Delhi. The parties belong to Tinsukia. After the marriage the parties lived there as husband and wife for some time but it is alleged that on 9-8-87 the wife left the marital home and did not return back to the place of husband. It is alleged that the opposite party/wife refused to come and live with the petitioner/husband at his residence. It is alleged that there was some attempt by her husband to bring her home back but he failed.2. This suit was filed on 11 th November, 1988 for dissolution of the marriage within two years from the date of marriage. So, the ground of desertion shall not be available to the husband/ petitioner for seeking a divorce. The only ground which was available is cruelly.
3. The plaint was amended on 11th August, 1991. Be that as it may, the opposite parly filed a written statement and denied all the allegations. Witnesses were examined before the learned Judge. The learned District Judge by judgment dt. 11-1-94 dismissed the suit. The learned Judge rightly found that the petition for divorce is not maintainable for non completion of two years since the dale of marriage as required under the Hindu Marriage Act. The learned Judge thereafter took up the case of cruelty and after considering the evidence rightly came to the finding that cruelty has' not been established and that it was not impossible to live together as husband and wife. Before 1976 under Section 10 of the Hindu Marriage Act, the cruelty was defined as follows :
"The other party has treated the petitioner with such cruelty to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party:"
4. No doubt that now (sic) has been repealed but at the same time we must bear in mind that the concept of cruelty is a matrimonial offence and the legislatures had tagged a caveat to the effect that it has to be interpreted and applied in each case on the basis of the particular facts of that case. A bare allegation of cruelly without anything concrete is certainly not sufficient to snap the tie of marriage. The learned Judge has found in his judgment that because of the living as husband and wife, the respondent/wife conceived and 'ultimately there was a abortion. The learned Judge has found in the judgment as follows :
"The admitted incident of insult by the responent was nothing but an attempt by here to live in the matrimonial home. She got a pleader's notice issued on the petitioner directing him to take her back. Ail these show her willingness to go and live in the matrimonial home. The petitioner does not dispute the fact of the abortion alleged by the respondent, but he is very categorical on the point he was riot the cause of it.' In fairness to the petitioner, it must be said that he has no grievance against the character of the respondent. If the character is not bad then pregnancy must have been by the petitioner. Thus the claim of want of sexual contact which he regards as the basis of cruelty is also defeated by his own pleadings."
5. Much stress is laid now on an incident of insult by the wife to the husband but the learned Judge on appreciation of the materials on record found that this incident of insult took place because of sincere desire on the part of the wife to live with her husband and not to cause any injury or mental agony to the husband. It is very diffi-cult to find a perfect couple or a perfect husband and wife. There may be some fight at some point of time and mutual insult may also be there but that cannot be made a ground to snap the tie of marriage. If that is allowed the very concept of Hindu Marriage shall fall through. Here is a wife who is willing 'to go back to her husband but husband is not inclined to take her back. It cannot be said that it is a dead marriage. Both are young and can start life afresh.
6. It is urged by the learned Advocate for the appellant Sri Baruah that the marriage, in this case has irretrievably broken down and on that ground relief should be granted to the husband. It may be stated herein that the Law Commission wanted to take up this ground i.e. irretrievable break down of marriage as a ground of divorce in the Hindu Marriage Act by amended Act, 1976 but the legislature did not accept it as a ground for divorce and that was not included in the amended Act, 1976. The Supreme Court in certain cases have granted relief in an extreme situation by exercising the power under Article 142 of the Constitution of India but the power under Article 142 of the Constitution of India is not available to tins-Court. That aspect of the matter came up for consideration before the Division Bench of this Court reported in 1997 (3)'Gauhati LT 292 (Monoranjan Dutta v. Smt. Shibani Dey) wherein in paragraph 12 of the judgment it is laid down as follows:
"Mr. Choudhury the learned senior counsel lastly submitted that since, marriage has been irretrievably broken down for doing complete justice between the parties, it is a case where the Court should have decreed the suit. In support of his submission the learned senior counsel brought our attention to the decision in (Smt. Sneh Prabha v. Ravinder Kumar), reported in AIR 1995 SC 2170 (Ramesh Grander v. Savitri (Smt.)), reported in (1995) 2 SCC 7 : (AIR 1995 SC 851), (ChanderkalaTrivedv (Smt.) v. Sir. S.P. Trivedi) reported in (1993) 4 SCC 232' and (Ashok Hurra v. Rupa Bipin Zaveri) reported in (1997) 4 SCC 226: (AIR 1997" SC 1266). In the above cases the Supreme Court found that there was total break down of the marriage and there was no scope for retrieve of those marriage. In sum the Court found that marriages were irretrievably broken down. The Supreme Court accordingly ordered for dissolution of those marriages to do complete justice' between the parties in aid of the power conferred under Article 142 of the Constitution of India. The Courts other than the Supreme Court cannot pass a decree of dissolution of marriage other than the grounds specified in the statute."
7. This decision is squarely binding on me. I have given anxious consideration to the matter and after considering the entire aspect of the matter I do not find any merit in this appeal and accordingly, the appeal is dismissed with cost of Rs.2,000/-.
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