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1987 DIGILAW 28 (GAU)

Ka. Amal Lyngdoh v. U. Jabin Pakem

1987-05-15

K.N.SAIKIA, MANISANA, S.N.PHUKAN

body1987
* Against decree of Judge, Jaintia Hills Autonomous District Council Court, Jowai, D/-29-7-1986. Judgement SAIKIA, Actg., C.J. :- The decree nisi dated 29-7-86 dissolving the marriage of the petitioner with the respondent granted by the Judge, District Council Court, Jaintia Hills Autonomous District Council, Jowai in Divorce Suit No. 4/86 has come up for confirmation under S.17, Divorce Act, 1869. The parties are Christians. They were married according to the Christian Marriage Act, 1872 and they had 7 children. The petitioner sued the respondent for divorce on the grounds that the respondent had deserted her for more than 7 years since 1979 without any reasonable cause and had not maintained her and her children since then; and he had treated her with cruelty having often threatened to injure her person, and to burn her house and make her unsafe. 2-3. The petitioner examined herself as witness 1 and one U. Kilbert Latam as witness 2. The petitioner deposed that she married the respondent in 1967 whereafter they cohabited and lived together as husband and wife for about 12 years and had 7 children. Since 1979 the respondent deserted her and her children and he, very often, threatened to hurt her and to burn her house whenever she met him, and made her life miserable and unsafe wherefore she had to leave her village and come to stay at Jowai town where also whenever the respondent came he used to threaten her; and that for his bad and evil behaviour, she had to file the petition for divorce as she felt that it was no longer safe to live with him. 4. PW 2 U. Kilbert Latam, corroborated the petitioner saying that the respondent threatened the petitioner to hurt her whenever he met her and to burn her house; and that the respondent was a very desperate person and used to drink liquor; and, therefore, the petitioners life was miserable and unsafe and she had to leave her village. 5. The learned Judge on the basis of the above evidence was of opinion that it was not fair to force the petitioner to live with the respondent as husband and wife as he had treated the petitioner cruelly and made her life miserable and unsafe; and on that ground passed the decree nisi dissolving the marriage. 6. 5. The learned Judge on the basis of the above evidence was of opinion that it was not fair to force the petitioner to live with the respondent as husband and wife as he had treated the petitioner cruelly and made her life miserable and unsafe; and on that ground passed the decree nisi dissolving the marriage. 6. For confirmation of the decree nisi two questions arise for consideration, namely, (1) Whether the facts and circumstances stated by the petitioner amounted to cruelty under the law; (2) Whether the ground stated in the petition, namely, desertion and cruelty constituted valid grounds for dissolution of marriage ? 7. Section 10, Divorce Act, 1869, dealing with grounds of dissolution of marriage provides : "10. When husband may petition for dissolution- .... .... .... .... When wife may petition for dissolution.- Any wife may present petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solmenization thereof, her husband has exchange his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman; or has been guilty of incestuous adultery, or of bigamy with adultery, or of marriage with another woman with adultery, or of rape, sodomy or bestiality, or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro, or of adultery coupled with desertion, without reasonable excuse for two years or upwards." Thus we find adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro, or adultery coupled with desertion without reasonable excuse for two years or upwards are, inter alia, grounds for dissolution of marriage. In the instant case, there is no allegation or evidence of adultery. On the other hand, there is allegation of desertion and cruelty, but not of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro. Desertion coupled with cruelty are not grounds of dissolution of marriage. The notion of such cruelty as without adultery would have entitled a wife to a divorce a mensa et toro may now be examined. 8. Desertion coupled with cruelty are not grounds of dissolution of marriage. The notion of such cruelty as without adultery would have entitled a wife to a divorce a mensa et toro may now be examined. 8. Divorce a mensa et toro, which means a divorce from table and bed, or from bed and board is a partial or qualified divorce by which the parties are separated and forbidden to live and cohabit together without affecting the marriage itself. Section 22, Divorce Act, 1869, puts a bar to decree for divorce a mensa et toro; but provides for judicial separation obtainable by husband or wife. Under this Section "no decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion without reasonable excuse for two years or upwards, and such decree shall have the effect of a divorce a mensa et toro under the existing law, and such other legal effect as hereinafter mentioned." Under S.23, application for judicial separation on any one of the grounds aforesaid, may be made by either husband or wife by petition to the District Court or the High Court; and the Court, on being satisfied of the truth of the statement made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly. Section 10 enables the wife to present a petition for dissolution of marriage on the ground of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro. This only prescribes a standard of cruelty which coupled with adultery will enable the wife to present a petition for dissolution of marriage. But cruelty of that standard by itself will not be enough ground for decreeing dissolution of marriage but will be sufficient ground for obtaining a decree of judicial separation and if such a decree is obtained it shall have the effect of a divorce a mensa et toro under the existing law and other legal effects. 9. What is the nature and standard of cruelty that will enable a party to obtain a decree for judicial separation, which would amount to a divorce a mensa et toro ? 10. 9. What is the nature and standard of cruelty that will enable a party to obtain a decree for judicial separation, which would amount to a divorce a mensa et toro ? 10. While applying the law to facts of the case, we have to remember that "Cruelty" means cruel in the ordinary sense. It has no esoteric or artificial meaning. There must be some grave and weighty matters to constitute cruelty as was held in Le Brocq v. Le Brocq, (1964) 1 WLR 1085. Cruelty as a ground of divorce must be some conduct of respondents as gives the petitioner a reasonable cause of apprehension of injury to body, mind or health in future. In Forbes v. Forbes, (1955) 2 All ER 311, it was laid down that "if a wife deliberately and consistently refuses to satisfy her husbands natural and legitimate craving to have children, and the deprivation reduces him to despair and affects his mental health, the wife is guilty of cruelty. There may be cruelty without an intention to injure as was held in Gollins v. Gollins, 1964 AC 644. Persistent refusal of sexual intercourse without any reason may amount to cruelty. (Sheldon v. Sheldon, 1966 P 62 or constructive desertion (1969) 1 P 122). Persistent cruelty may be a ground. Where the respondent-has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent, it may amount to cruelty. Legal cruelty has been defined in Russel v. Russel, (1897) AC 395, 467 as conduct of such a character as to have caused danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger". No hard and fast rules can, however, be laid down; and in determining what constitutes cruelty, regard must be had to the circumstances of each particular case, keeping always in view the physical and mental condition of the parties, and their character and social status. What we must determine is not whether the petitioner has proved the charge of cruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has treated her with cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with the respondent. 11. What we must determine is not whether the petitioner has proved the charge of cruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has treated her with cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with the respondent. 11. In "Tolstoy on Divorce" 7th Edition Page 68, we find some examples of cruelty. Husband deceiving his wife as to antecedents, refusal to co-operate over family matters, taciturnity, personal uncleanliness, nagging, moods of sulkiness during which the husband ignored his wife, unreasonable demand of sick wife preventing the husband from sleeping, killing wifes child, brutality to her child, systematic neglect or insult, wilful neglect to maintain his wife and children, in certain circumstances desertion, wifes obsession over cleaning the house, drunkenness, sexual malpractices on the other spouse such as coitus interruptus or grossly excessive or revolting sexual demands, or refusal to have a child, false accusation of adultery, misconduct, in relation to third parties such as husbands indecent assault on the child of the marriage or on his step daughter or carnal knowledge of the wifes infant sister or his conviction for indecent exposure, the wifes unnatural practice with other women. 12. In deciding cruelty, the Court must consider the social status, environments, the mental and physical conditions and the susceptibilities of the innocent spouse and also the custom and manners of the parties. In case of mental cruelty, the whole matrimonial relation must be taken into account. There must be reliable circumstances as it was held in Lawson v. Lawson, (1955) 1 All ER 341. As proof of torture or cruelty corroboration from friends, neighbours, doctors, etc., may be accepted. Bipin Chandra v. Prabhabati, AIR 1957 SC 176 . 13. Applying the above standard, the learned Judge was perhaps justified in holding the present case to be a case of cruelty inasmuch as the petitioners life was made miserable by the respondent, wherefor she had even to leave her village and come to Jowai where also she was similarly threatened not only with physical injury but also to burn her house by the respondent. 14. Then arises, the next question whether the cruelty itself will be a ground ? 14. Then arises, the next question whether the cruelty itself will be a ground ? It appears, that under the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, and the Parsi Marriage and Divorce Act, 1936 both the parties are allowed to petition for a divorce on the ground of cruelty which may be physical, or mental cruelty or both. The Dissolution of Muslim Marriage Act, 1939, which provides grounds for divorce exclusively upon the wife also includes cruelty. The only act which does not allow the wife to obtain divorce on the ground of cruelty alone is the Divorce Act, 1869, as would be apparent from the relative provisions quoted above. Under these Acts, the wife has to prove that her husband was not only cruel, but also that he had adulterous sexual intercourse with a party other than his spouse who claims a divorce. Desertion is again another common ground of divorce under all the Personal Laws. Under the Hindu Marriage Act and the Special Marriage Act, desertion for a period of 2 years is sufficient to constitute a ground for divorce. However, under the Parsi Marriage and Divorce Act, the period of desertion has to be 3 years. The Christian woman on the other hand has again to prove dual matrimonial offences by her husband, that is, adultery coupled with desertion. In Ambujam Ammal v. M.R. Arumugham, AIR 1966 Mad 153 (FB), a Full Bench of the Madras High Court has also held that the cruelty, by itself, is not an adequate ground for divorce. If the wife is to succeed in a decree for divorce against the husband, she must show not merely cruelty, but adultery coupled with cruelty. This was followed by the Special Bench of the same High Court in Doris Padmavathy v. V. Christodass, AIR 1970 Mad 188 . In that case, it was reiterated that cruelty although grave is not per se a ground for dissolution of the marriage under S.10, though it is a ground in itself for the grant of a decree for judicial separation between the parties. We respectfully agree. 15. In that case, it was reiterated that cruelty although grave is not per se a ground for dissolution of the marriage under S.10, though it is a ground in itself for the grant of a decree for judicial separation between the parties. We respectfully agree. 15. Under S.22, Divorce Act, 1869, no decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial separation on the ground of adultery or cruelty or desertion without reasonable excuse for two years or upwards, and such decree shall have the effect of a divorce a mensa et toro under the existing law and such other legal effect as hereinafter mentioned. 16. We are accordingly unable to confirm the decree nisi for dissolution of marriage. The reference is accordingly rejected. Reference rejected.