Savitri Pandey v. Prem Chandra Pandey
By: Robin Pandey Date: 24/February/2022
The wife lived with the husband for few weeks and as per her own pleading the marriage between the parties was never consummated The wife (Appellant) alleged that the husband and his family members have started torturing her on false pretext soon after the marriage and started demanding household articles and money from her father. She also alleged that the husband was having illicit relations with a lady with whom he was stated to have solemnized the marriage. The allegations made in the petition were denied by the respondent and was stated that in fact the appellant wife was taking advantage of her own wrongs by not allowing cohabitation and Consummation of the marriage by leaving matrimonial home.
(1) What is the meaning of "Cruelty" and "Desertion" for the purpose of matrimonial law?
(2) What is the legal position of wife who claiming relief on the ground of Desertion while the marriage itself is not consummated and there is no cohabitation?
Supreme Court's Observations
Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(ia) HMA. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. "Cruelty" therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the Petitioner to live within the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis ne sensitivity of the petitioner and has to be adjudged on the basis of course of conduct which would, in general, be dangerous for a spouse to live with the other.
Desertion" for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without other consent and without reasonable cause. In other words, it is a total repudiation of the obligations of marriage. Desertion is the withdrawal from the matrimonial obligations, i.e. not permitting or allowing and facilitating the cohabitation between the parties. Desertion is not the withdrawal from a place, but from a state of things. Desertion is not a single act complete in itself; it is a continuous course of conduct to be determined under the facts and Circumstances of each case. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalizes the sexual relationship between man and woman in society for the procreation of children.
There can be no desertion without previous cohabitation by the parties. The basis for this theory is built upon the recognized position of law in matrimonial matters that no one can desert who does not actively or wilfully bring to an end the existing state of cohabitation. Where a wife herself did not permit the husband to have cohabitation for consummating the marriage and there was nothing on record to indicate that the husband ever refused to cohabit with her, the wife would not be entitled to raise a plea of desertion against the husband, to seek a divorce. Thus, in this case, there was admittedly no cohabitation because the wife declined it, so no question of any desertion by the husband. Allowing the wife any relief in such case would be allowing her to take advantage of her own fault.
The marriage between the parties cannot be dissolved only on the averment made by one of the parties that as the marriage between them has broken down. n useful purpose would be served to keep it alive. The legislature, in its wisdom despite observation of this court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where, on facts, it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity of marriage cannot be left to the whims of one of the erring spouse. The appellant wife herself is trying to take advantage of her own Wrong and in the circumstances of the case, the marriage between the parties cannot be held to have become dead for invoking the jurisdiction of this court under Article 142 of the Constitution for dissolving the marriage. Appeal dismissed.