Jia Lal Abrol vs Sarla Devi

G.M. Mir, J.—This appeal is directed against the order of the learned District Judge, Jammu, dated 30-4-1976 in petition under Sections

10/13 of the Hind Marriage Act. The trial Judge holding that there was no substance in the petition an that the Appellant having failed to provided

the grounds alleged by him in the petition for judicial separation/divorce dismissed the petition with costs.

The parties were admittedly married according to Hindu rites in Jammu July 1967. They lived together for son time but according to the

Appellant-Petitioner, the wife, the Respondent, was suffering from a disease in nose because which she was continuously emitting su(sic) awful

smell as made it unbearable for his either to sit by her side or to enjoy her company or to have sexual intercourse with her. The Petitioner also

alleged the besides suffering from this awful disease the wife was also of an unsound mind. According to him the wife was suffering from both these

diseases even at the time of marriage itself but this fact was kept back from him by her and her parents. He alleged further that the disease of nose

was incurable and despite all possible treatment which he arranged for the wife, the disease could not be cured, and as such hag caused a

reasonable apprehension in his mind that it would be harmful and injurious for him to continue to live with her. According to the Petitioner the very

purpose of the marriage has thus been foiled and the circumstances have given rise to a situation sufficient to show that the wife has been guilty of

committing cruelty towards him. The wife however, denied all these allegations and contended that after the marriage between the parties she lived

with the Petitioner for about two years and the relation during that period remained very cordial between her and her husband. The Petitioner

according to her, however, developed an idea to have Anr. wife during the lifetime of the Respondent and therefore, with that aim in view started

maltreating her and the attitude of the Petitioner towards her underwent a change and his behaviour became so cruel that she had to leave the

house of the Petitioner and take refuge in the house of her brother. The Petitioner however, on intervention of the relatives took her back after

some time but finally turned her out of his house in March 1972 and since then she has been living separately from him. She denied to be suffering

from any disease of nose or throat which could possibly prevent the Petitioner from having cohabitation with her or from enjoying her company.

She also denied that she was of unsound mind and contended that she was a completely normal person competent to manage her affairs. She

finally contended that the petition has been lodged with the sole intention of getting rid of her without any reasonable cause and to enable the

Petitioner to take some other person as his wife.

On the pleadings of the parties, on 29-6-1972 the trial court raised the following four issues:

Whether the petition has not been drafted according to the rules prescribed in that behalf and if so, what is its effect on the application? O.P.P.

Whether the Respondent is suffering from any incurable disease of nose and throat from which she is emitting obnoxious foul smell and because

of that it is harmful and injurious for the Petitioner to live or cohabit with her? O.P.P.

Whether the Respondent was of unsound mind at the time of marriage and continued to be as such? O.P.P.

What relief if any is the Petitioner entitled to? O.P.P.

A number of witnesses were produced and examined by both the parties in the trial court. On behalf of the Petitioner Ram Paul, Devi Dass,

Chaman Lal Mattoo and Bishan Dass, Yesh Paul, and Dr. J.R. Sethi were examined. The Respondent produced Om Parkash, Mahesh Dass, Ved

Parkash, Dr. K.R. Gandotra, Hira Nand, Dr. Chaman Lal, Ashok Kumar and Virender Khajuria. The parties were also examined as their own

witnesses and Dr. Jyoti Parkash appears to have been examined as a court witness.

On a perusal of the testimonies of the witnesses examined by the Petitioner in the trial court, it appears that C.L. Matoo, the first witness, has

nowhere referred to any disease of throat or nose on account of which the Respondent was emitting foul smell. In his presence, however, the

Respondent sometimes behaved in an unusual manner which led him to suspect the presence of some disease in her. According to him she was

examined by Dr. Sethi. Bishen Dass P.W. 2 has found that the Respondent was not behaving like a normal person inasmuch as she neither

understood the conversation properly nor was able to do any work in a proper manner. She, according to him, emitted foul smell from her nose.

Yash Paul P.W. 3 has stated that the Petitioner took the Respondent to various places for treatment because, as he had heard from the house of

the Petitioner, the Respondent was suffering from some disease of the nose. Devi Dass P.W. 4 has deposed that the Respondent was suffering

from some disease of throat and nose because of which she was emitting foul smell causing mental torture to the Petitioner and that the parties

were unable to live as husband and wife any longer. Dr. J.R. Sethi P.W. 5 is the only medical witness produced and examined by the Petitioner.

He has examined the Respondent and prescribed treatment for her nose trouble which according to him was chronic rhinitis. He found that

because of this disease she was emitting foul smell from her nose and also found that her mental development was defective. He treated her for 2/3

months but the Respondent was not cured. The Respondent according to him was emitting foul smell from her nose which was so obnoxious as to

render it difficult for any person to sit by her side. She was suffering from a chronic infection but the disease was not contagious. In his opinion in

most cases such patients do not completely recover. The witness however, found very little smell coming out of the nose of the Respondent when

he examined her from a close distance again in the court during his testimony at the suggestion of the opposite party. This witness gave rise to a

controversy between the parties as to whether he was an expert and a specialist in the branch of medicine known as E.N.T. He claimed to be one

but admitted that he had not obtained any degree as a Specialist in E.N.T. Dr. Jyoti Prakash has refuted the claim of Dr. Sethi.

In his own statement the Petitioner has stated that the Respondent was suffering from a disease of the nose because of which she was emitting

foul smell which made it impossible for him to have cohabitation with her. Further, he contended that she was neither able to speak properly nor

her voice was normal. He got her examined by Dr. J.R. Sethi who told him that the disease was incurable. He has not been able to have

cohabitation with her which has resulted in mental agony for him and that his health has been adversely affected. He has maintained that the

Respondent was of unsound mind, and was suffering from the nasal disease even before she was married to him.

On the other hand, witnesses for the Respondent namely, Om Parkash, Mahesh Dass, Ved Parkash, Hira Nand, Ashok Kumar and Virender

Khajuria have claimed to have known the parties, more particularly the Respondent, and were aware of no foul smell coming out of the

Respondent's nose or throat. To them she has always appeared to be a normal human being capable to attend to her affairs as a normal person

and they found her of good sound mind. Besides these persons the Respondent has examined two Medical experts namely, Dr. K.R. Gandotra

and Dr. Chaman Lal. None of them however has claimed to be an E.N.T. Specialist. They have as general practitioners examined the Respondent

at various times. Both of them are unanimous in saying that the Respondent suffers from a minor defect in her nose which they called deviated nasal

septum; but because of this defect, they maintained, she was not emitting any awful smell and that the defect could not be removed and was

curable on a minor surgery of the nose. According to Dr. Chaman Lal the Respondent was of sound mind and capable of looking after herself and

managing her affairs. He examined the Respondent from a very close distance but found no awful smell coming from her nose. Minor surgery

which was suggested by these Doctors would according to them need hardly a week's hospitalisation.

Appearing as her own witness the Respondent has categorically denied that she was of unsound mind, or that she was emitting foul smell from

her nose. She has admitted to have been examined by some Doctors for treatment of a wound in her nose caused by the ill-treatment of the

Petitioner. The wound has now been cured and she was completely all right. She has alleged that the Petitioner was trying to get rid of her on one

pretext or the other, so that he may be able to marry Anr. girl during her life time.

Dr. Jyoti Prakash who appears to be the most important witness has been examined. He was an M.Sc., in E.N.T. and has worked in local

hospitals since 1966 as Nose and Throat Specialist. He examined the Respondent on 30-5-1974 at the direction of the court. He found no foul

smell coming out from the nose of the Respondent. According to him she was suffering from 'deviated nasal septum' to the right with unilateral dry

rhinitis of the left nostril. Her nasal septum was not in mid-line but deviated to the right causing dryness in the left nostril. This was the only malady

he found in her nose. He admitted that such a disease may cause foul smell from the nose. On examination he however did not find any foul smell

coming out of her nose. The disease according to him was curable on a minor surgery and medication. He has claimed to have performed such like

operations quite a number of times and about the instant case he felt that if the operation was performed the result would be quite satisfactory.

Explaining further the witness said that foul smell may be caused if crusts accumulate and are not cleaned. When the nose is cleaned of crusts, the

smell would not be there. He was of the opinion that the Respondent was not emitting foul smell of the nature which could possibly prevent a

person from sitting near her. He has further stated that if the disease was left untreated, it was likely to lead to the disease of the nose called

Atrophic rhinitis"" but the witness could not say with certainty that the Respondent would in that event develop such a disease.

The conclusion at which the trial court of the District Judge arrived was that there was no substance in any of the grounds set out by the

Petitioner for divorce or in the alternative for judicial separation and therefore, it dismissed the petition with costs. The Petitioner-Appellant

preferred an appeal in this Court which came to be heard by Justice Mian Jalal-ud-Din, Acting Chief Justice (as his Lordship then was) on

December 21, 1976. During the course of arguments his Lordship felt that an important question of law being involved in the appeal, the same, as

a whole, be heard by a Full Bench. His Lordship referred to a Division Bench Judgment of this Court viz: Rup Lal v. Kartaro Devi reported in

1970 K. LJ 311 : AIR 1970 J and K 158 and was of the view that it may require further consideration as the scope of intention had not been

considered in that judgment in matters of petitions for judicial separation under Clause (b) of Sub-section (1) of Section 10 of the Hindu Marriage

Act, In his Lordship's words:

In this appeal which is directed against the judgment and decree dated 30-4-1976 of the learned District Judge, Jammu, the important question

involved is whether it is open to a Hindu husband to claim divorce or in the alternative judicial separation from his wife on the ground that the wife

is suffering from a disease of her nose and throat and that she emits foul smell which renders it impossible for the husband to enjoy the society of

the wife.

His Lordship went on to say in the order of reference that:

The matter raised before me is of considerable importance. There is, however, an authority of the Division Bench of this Court reported in 1970

Kash LJ 311 : AIR 1970 J and K 158 which deals with the proposition that has been debated before me. In my opinion, the Judgment delivered in

the aforesaid authority does not take into consideration the aspect of intention. It needs to be reconsidered in view of the fact that if it is laid down

that even a nasty disease contracted by either party to the marriage can furnish a ground for claiming dissolution of marriage, this will have far

reaching effect on the Hindu Society....

In my opinion, it is, therefore, necessary to refer the question and also, the whole case to a Full Bench for an authoritative pronouncement on the

points involved in the appeal, and also for reconsideration of the observations made in 1970 Kash LJ 311 : AIR 1970 J and K 158....

It is in this manner that the present appeal has come to be heard by this Bench.

Before us during the hearing of the appeal arguments advanced were confined and limited firstly to the inquiry and consideration as to whether

to succeed in the petition, it was incumbent for the Petitioner to prove in a matter for judicial separation u/s 10(1)(b) of the Hindu Marriage Act the

intention on the part of the defaulting party to injure, harm, or to harass the other spouse and secondly on facts of the case whether factum of

cruelty as envisaged u/s 10(1)(b) of the Act has been established or not it was urged by the learned Counsel for the Appellant that intention did not

form an important or necessary element for a matrimonial offence as envisaged u/s 10(1)(b) of the Act. According to him the the only point that

would arise for consideration in matter like this would be to see what consequences flow or may reasonably be expected to flow from the action

complained of, on the other spouse. If the consequences, he contended, were found to be injurious or harmful to the other spouse, the question of

intention would not arise. The intention of the legislature, according to him, could reasonably be presumed to be the same as otherwise the

legislature while enacting Section 10(1)(b) of the Act would have specifically laid down the requirement of intention for establishment of such an

offence. The argument advanced by the learned Counsel for the other side was that the language used in Sub-clause (b) of Sub-section (1) of

Section 10 of the Act obviously leads to the only interpretation that the proof of intention was a sinequa-non for a decree of judicial separation on

the ground mentioned in that sub-clause. A number of judgments were cited at the bar in support as well as against the importance of the existence

of intention in a matter like this. Most of the judgments, of course, pertain to cases for divorce which arose in England and have been reported in

All England Reports. We have been particularly referred to:

(i) Atkins v. Atkins (1942) 2 All ER 637 (ii) Squire v. Squire (1947) 2 All ER 529 (iii) Kaslefsky v. Kaslefsky (1950) 2 All ER 398 and (iv)

Gollins v. Gollins (1963) 2 All ER 966 and the Indian cases.

(i) Smt. Umri Bai v. Chittar AIR 1966 Madh Pra 205 , (ii) Trimbak Narayan Bhagwat Vs. Kumudini Trimbak Bhagawat, and (iii) Rup Lal v.

Kartaro Devi 1970 Kash LJ 311 : AIR 1970 J and K 158.

Upto 1963 the view taken in most of the cases by courts in England with regard to the necessity of intention in a matrimonial offence has been

consistently unanimous to the effect that the element of intention was an essential ingredient to be proved for a decree of divorce or judicial

separation on the plea of cruelty. The English courts were of the view that the defaulting spouse must be found guilty of deliberate behaviour on his

or her part, the effect of which either has been or must be, in the ordinary course, to injure the health, bodily or mentally, of the other spouse, In

Squire v. Squire (1947) 2 All ER 529) (supra) on the facts appearing in the case the opinion of the court was that 'the wife's conduct arising as it

did from illness, did not amount to legal cruelty, to constitute which the conduct complained of must be deliberate, malignant and intentional.

In Kaslefsky v. Kaslefsky 1950-2 All ER 398 (supra) the view taken was that in the absence of evidence that the wife's conduct was due to

her intention to wound the husband's feelings and that it had resulted in injury or reasonable apprehension of injury to his health, the conduct of the

wife could not be held to amount to cruelty.

In Gollins v. Gollins 1963-2 All ER 966 (supra) however, the House of Lords after taking note of a number of authorities on the question of

cruelty came to hold the view that an intention on the part of one spouse to injure the other was not a necessary element of cruelty for a

matrimonial offence. Two of the five Law Lords dissented from this view. In their dissenting judgments delivered separately the two law Lords

were of the view that intention on the part of the defaulting spouse to injure the other spouse was a necessary ingredient to establish the matrimonial

offence of cruelty. Lord Reid the presiding Judge, in effect, was of the view that intention was not a necessary element in such matters. He however

observed at the close of his judgment that ""if the conduct complained of and its consequences are so bad that the Petitioner must have a remedy,

then it does not matter what was the state of the Respondent's mind. In other cases the state of his mind is material and may be crucial"". The state

of mind of the defaulting spouse, in the opinion of Lord Reid also, was not obviously an element of no consequence that could be lightly ignored in

all cases of matrimonial offences. It may be crucial and material in some cases and requires due consideration, It was clearly on the facts of the

case and the circumstances appearing in Gollins v. Gollins (Supra) that the majority of the Law Lords came to hold the view that intention was not

a necessary element for proving the matrimonial offence of cruelty as alleged, Obviously the judgment in the said case has not and should not be

interpreted as having laid down a general principle of law applicable in all cases wherein cruelty was a ground for judicial separation or divorce.

The desirability of making a distinction between cases of this nature for the requirement or otherwise of the element of intention has found favour

with the majority of the law Lords who decided Gollins v. Gollins (supra). It may be hazardous and on facts of a particular case even unjustified to

lay down as a general principle of law the necessity or otherwise of the element of intention as a requirement sinequa-non for establishing or

rejecting a case for judicial separation or divorce on the basis of cruelty, Each case depends on its own facts and must be judged on these facts.

The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status

of the persons involved and their economic conditions and other matters The question whether the act complained of was a cruel act is to be

determined from the whole facts and the matrimonial relations between the parties. In this connection the culture, temperament and status in life and

many other things are the factors which have to be considered All these factors need be considered for judging the conduct complained of in

relation to the fact as to whether it amounts to matrimonial offence of cruelty within the meaning of Section 10(1)(b) of the Act.

In most cases decided by English and Indian courts the question of the cruelty came up for consideration in the context of a particular

behaviour or conduct exhibited by the defaulting spouse. The case of Gollins v. Gollins 1963-2 All ER 966 (supra), was one of such cases. A

particular conduct and behaviour of the husband was held to be sufficient to establish cruelty and on the facts appearing in the case it was laid

down that intention was not necessary element to establish cruelty. A similar view was taken in Trimbak Narayan Bhagwat Vs. Kumudini Trimbak

Bhagawat, and on facts of the case the insanity of husband coupled with his attempt to strangulate the brother of the wife on one day and their child

on the other was held to be an act of cruelty without proof of intentional behaviour of the husband.

The case at hand however on facts stands distinguished from Gollins 1963-2 All ER 966 (supra) and the Bombay case. The husband here is

not complaining of any rude behaviour or of a particular conduct the wife injurious to the health of the husband. It was not the case of the husband

that the illness was deliberate or aimed at him with intention to injure or harm him. The disease itself as it transpires from evidence was not of the

nature that would lead a reasonable person to conclude that it would be dangerous for the health of the husband to continue to remain united in the

bond of marriage with the wife. The alleged disease was neither contagious nor incurable. In fact the bad smell was not there throughout the day

and night. Its effect could be diminished to a large extent by removing the crusts from the nose. It was not the case of the husband that with

intention to harm him, wife declined to cleanse her nose or refused treatment. On facts, it appears, on the other hand, that no serious attempt has

ever been made by the husband to provide proper treatment to the wife. A minor surgery might have been of great help as a result of which the

disease might have been brought to an end. This was not done and the responsibility squarely lies on the husband. In cases of illness of the nature

we are dealing herein it would not be only desirable but necessary to show the existence of intention to injure so as to meet the requirements for

judicial separation on the ground of cruelty. The phraseology employed in Sub-clause (b) of Sub-section (1) of Section 10 of the Act may give an

indication of the intention of the Parliament with regard to the requirement of element of intention for establishing the matrimonial offence as

envisaged under the said sub-clause if it is conceded that the words ""has treated the Petitioner"" used therein in some form or other point out to a

deliberate act in the treatment of the Petitioner by the defaulting spouse. We however, would not go to that extent in interpreting these words in the

manner but the fact remains that the contention is not totally devoid of force. The words used are capable of creating an impression of that kind.

On turning to other permissible grounds for judicial separation enumerated in the Act, one immediately comes across the provisions in (c), (d) and

(e) of the same sub-section wherein diseases have been distinctly and specifically mentioned which may, on certain conditions, provide valid

grounds for judicial separation. The diseases, mentioned therein are virulent form of leprosy, venereal diseases, and unsoundness of mind. No other

disease, be it ordinary or dangerous, could be made a ground for dissolution of marriage or judicial separation under these sub-clauses of Sub-

section (1) of Section 10 of the Act. There is no gainsaying the fact that many more diseases exist which may be equally or in some ways even

more dangerous than leprosy or venereal diseases, but those diseases would not by themselves furnish valid grounds for judicial separation or

divorce, unless such diseases are further shown to have created a situation for the other spouse which amounts to cruelty. For a Petitioner under

sub-clauses (c), (d) and (e) of Sub-section (1) of Section 10 of the Act, it may not be necessary to prove Intention to harm; the factum of the

existence of such a disease is sufficient for a decree for judicial separation. But in case of other diseases further requirement is to establish that the

cruelty as envisaged under Sub-clause (b) of Sub-section (1) of Section 10 of the Act has resulted in, The aspect of intention may become

important and crucial"" In such cases. May be venereal disease and leprosy because of being at once dangerous as well as contagious have been,

on fulfilment of certain conditions, declared to be good grounds for judicial separation but as is well known these are not the only contagious and

dangerous diseases. The Parliament in its wisdom has however, singled out these two diseases only for this purpose. Be it as it may, it is for the

Parliament to think about it. We have to interpret the law as it is or as it appears to be. We are conscious that cruelty includes mental cruelty also

besides physical cruelty. Yet the door of cruelty could not be opened too wide as otherwise we may soon find ourselves granting divorce on the

ground of mild diseases and even for the incompatibility of the temperament. True, that the husband or wife as the case may be, could not be

blamed and condemned to suffer for ever for no fault of his or her, but the temptation to grant divorce or judicial separation has to be resisted lest

we step into a state of affairs where the sacred institution of marriage itself is endangered. Illness was bound to create a position of great difficulty

and inevitable suffering for both the spouses but then it must be remembered that one has taken the other for good or bad as the one's spouse and

the sacred bond of marriage could not and should not be allowed to the scrapped on light or flimsy grounds.

In this view of the matter, we feel obliged to agree with the learned Counsel for the Respondent that the extent and nature of the element of

intention not having been considered in 1970 Kash LJ 311 : AIR 1970 J and K 158 (supra) decided by a Division Bench of this Court, the

proposition of law expounded therein could neither be followed nor taken as a general principle of law applicable to all cases of judicial separation

on grounds of cruelty as envisaged under Sub-clause (b) of Sub-section (1) of Section 10 of the Act. On the evidence in that case it had been

established that the wife was suffering from a disease called Atrophic rhinitis as a result of which the wife had developed a serious type of sinus and

a fleshy portion of the nose had got putrefied and consequently it emitted very bad smell. It was laid down by their Lordships in that case that ""in

the instant case it is manifest that in view of the dirty disease from which Mst. Kartaroo is suffering it was impossible for the husband either to have

sexual intercourse with the wife, or to enjoy her company. In this view of the matter the very purpose of marriage would be foiled so long as the

wife was suffering from this disease."" A decree for Judicial separation therefore, against the wife was ordered. The judgment speaks of a positive

finding of fact with regard to the existence of the deadly disease of nose and also about its awful smell. The Division Bench had also on the basis of

evidence come to the conclusion that under the circumstances of the case it was impossible for husband to cohabit with wife. It was also found that

wife was suffering from a disease known as Atrophic rhinitis. These were findings of fact and on the basis of these findings a decree for judicial

separation appears to have been ordered without taking into consideration the element of intention in matters like these, as the same does not

appear to have been pointed out to their Lordships of the Division Bench, the proceedings in appeal having been ex parte. The decree for judicial

separation ordered therein might have been justified on facts of the case but the omission to refer to the necessity or otherwise of the element of

intention in matrimonial matters for purposes of establishing cruelty has rendered the judgment effective only with regard to that particular case, and

could not form a precedent for any other.

The question of intention in our view is important and may in appropriate cases turn out to be crucial. We therefore, find ourselves in

agreement with the learned Counsel for the Respondent wife and would not (as we have not) leave this case without considering the scope and

extent of the element of intention in a matter of judicial separation (like the one at hand) on grounds of cruelty.

We now turn to the evidence produced in the instant case to find as to whether the Petitioner-Appellant has been successful in proving as a

fact that the wife was suffering from a deadly and injurious disease, which was harmful and injurious to his health. On having perused it minutely,

we are satisfied that the Petitioner-Appellant has completely failed to establish a case in his favour. From whatever angle one scrutinises it, the most

cogent and relevant piece of evidence that is on record in this behalf is the testimony of Dr. Jyoti Prakash, a Specialist in nose diseases. He was

firm in his view that the disease in her nose was an ordinary one and could be permanently cured on a minor surgery. It was not (he found on

physical examination) that the wife would give out bad smell through her nose every time. It may be so only when the crusts accumulate in the nose

and the nose remained unwashed and uncleaned. The smell even then was not of the nature that would prevent or make it impossible for Ors. to sit

near her. It was on record that on examination in the court the nose was not found to be giving out any awful smell. When Dr. Jyoti Prakash could

not find any bad smell coming out of the nostrils of the Respondent, which was also the case with Dr. J.R. Sethi, the Petitioner-Appellant's own

witness, (who said so after bringing his nose very close to the nose of the Respondent during his deposition in the trial court) it is difficult to believe

the Petitioner-Appellant when he says that it was impossible for him to sit near his wife or enjoy her company or have sexual intercourse with her.

The charge of cruelty as a matrimonial offence requires to be established as any other fact. It has to be determined by taking into account the

individual concerned and the particular circumstances of the case. No objective standards can be laid down for this purpose.

We are therefore, convinced that the Appellant has not been able to establish the factum of alleged cruelty by any evidence whatsoever. May

be the wife was speaking the truth when she alleged that the husband in order to take Anr. person as his wife was vainly trying to find fault with her

nose and putting up pretexts which were imaginary and false.

Holding, therefore, that on facts of the case the Appellant has not been successful in showing that the act complained of was an act of cruelty

aimed at him by his wife, and also that on facts appearing in the case intention was a necessary element to be established which has not been done,

this appeal we dismiss but we make no order as to costs.

M. Jalaluddin, C.J.

I agree.

A.S. Anand, J.

I also agree.