Rekha vs Banwari

Feeling aggrieved with the judgment dated 18.02.2005 passed in Civil Suit No. 41-A/2010 (H.M.A.) by the Additional District Judge, Sheopur (M.P.) by which the application u/s 13(1)(1A) of Hindu Marriage Act, 1955, filed by the applicant/respondent was allowed, the non-applicant/appellant has filed this appeal u/s 28 of the Hindu Marriage Act, 1955.

It is not disputed that the marriage of the appellant and respondent was held as per Hindu customs in the year 1992 at a "common marriage ceremony"(Samuhik Vivah Sammelan). A baby girl has been born out of the wedlock. She was four years at the time of filing the application.

The factual matrix of the case lies in a narrow compass. The applicant/respondents claimed that the non-applicant/appellant after the gauna (a ceremony by which the bride goes to the matrimonial home) they lived peacefully for some times. But she started quarreling with the respondent due to which their relations became strained. The family became disrepute in the society. Many a time the non-applicant/appellant refused to prepare food, due to which the applicant/respondent had to remain without food. She refused to live with the applicant and always quarreled with the applicant/husband. Therefore, the applicant filed the application u/s 13(1)(1-a) of Hindu Marriage Act, 1955 for dissolution of the marriage.

Per contra, the non-applicant wife denied all the averments and submitted that the applicant/husband is in the habit of taking alcohol and casting aspersions on her character used to beat her. She never neglected her duties. It is the applicant/husband, who forcibly removed her from the house.

On the aforesaid, pleadings, the learned Trial Court framed a single issue regarding "cruelty". Applicant/respondent examined himself in support of his case, whereas the non-applicant/appellant examined herself in support of her case.

In this case, the burden was on the applicant/respondent to proof that the non-applicant/wife treated her with "cruelty" but except his own statement that his wife had been quarreling with him and was not preparing food no other witness has been examined to support his version.

The term ''cruelty'' however is no where defined, nor is it capable of any definition. It has no parameters; it is subjective and relative; what was not ''cruelty'' until a few decades back is construed as ''cruelty'' today, what is not ''cruelty'' today may be so construed a couple of year hence, likewise, it would differ from place to place from person to person and would also vary depending on social and cultural backgrounds of the parties. The attitudes of the courts have also been changing with changing times.

However, mere mismatching of personalities and frictions arising because of that cannot be termed as ''cruelty''. The wife/non-applicant, on the other hand, alleged ''cruelty'' against the applicant/husband and in her statement she has stated that the applicant is in the habit of drinking and used to misbehave with her in the state of drunkenness. This statement is also remained uncorroborated.

Divorce proceedings are proceedings of civil nature. Therefore, it has to be decided on the basis of "preponderance of probability". The statement of the applicant himself, without any corroboration, denied by the non-applicant in her statement, is therefore, cannot form the only basis for grant of divorce. The evidence must preponderate in favour of the petitioner and must be clear and satisfactory for allowing the application. The ''cruelty'' must be established on "preponderance of probability", what is required is that ''cruelty'' must be strictly proved. In the present case, it has not been strictly proved. The accusation of ''cruelty'' is a very grave and serious charge and, therefore, the Court should insist on strict proof. The relief of the divorce should not be granted as a matter of course. When disruption took place leading to matrimonial litigation, especially on the ground of cruelty, the Court has to delve into the facts and try to ascertain not only in fact but also as regards the effect on the ground of the complainant spouse.

In the present case, we find that the learned Trial Court pronounced the judgment in a causal manner. Therefore, we deem it proper to exercise the powers under Order XLI Rule 23 C.P.C. and remand the matter for fresh adjudication.

Accordingly, the impugned judgment dated 18.2.2005 is set-aside and the case is remanded to the Trial Court with the direction that parties may be allowed to adduce evidence on the issue framed by it and after affording opportunity to adduce evidence if any the same may be decided afresh.

No order as to cost.