KANNUSAMY vs SUMATHI CMA 1652/15 24/01/17

[M.JAICHANDREN,J. & T.MATHIVANAN,J]

[ MADRAS HIGH COURT ]

• Hindu Marriage Act Section 13(1)(ia) and (ib) Divorce Cruelty and desertion on part of spouse Accusation of cruelty is a very grave and serious charge and Court should insist on proof with same degree of strictness as in case of a criminal offence Decree of divorce cannot per se be granted on the basis of allegations made in pleadings What has not been stipulated by legislature, cannot be read into or imputed in the section In order to arrive at a definite conclusion that marriage has irretrievably broken down, Court must endeavour to analyse attendant circumstances in order to determine veracity of such allegations before arriving at a conclusion.

Relevant paras: 

21. We have carefully perused the grounds of appeal along with the impugned order. We have also perused the relevant materials and considered the submissions made on behalf of both sides. As rightly addressed by Mr.D.Selvaraju, learned counsel appearing for the respondent, the appellant had miserably and unfortunately failed to prove the allegation of cruelty and desertion.
22. With reference to this concept, we would like to place it on record that insofar as clause (ia) of Sub-Section (1) of Section 13 of the Act is concerned i.e., with reference to the term cruelty, the offending spouse must have treated the appellant with cruelty and the Court has to ascertain whether or not there was anything which could be described as treatment or conduct of the nature discussed above. There are no limits to the kind of treatment or conduct that might constitute cruelty. It is settled position of law that to amount to cruelty, the acts must be of a very serious nature than mere wear and tear of married life. The Apex Court in J. L. Nanda vs Smt. Veena Nanda reported in AIR 1988 SC 407 has observed that sometimes, the temperament of the parties may not be conducive to each other, which may result in petty quarrels. There is difference between original wear and tear of married life and when the disputes between the parties are not attributable to cruelty, no divorce can be granted.

23. On coming to clause (ib)of Sub-Section (1) of Section 13 of the Act, we may say that desertion per se was not a ground for the relief by way of divorce prior to the amendment of this section by the Amending Act of 1976, but was only a ground for the relief of judicial separation under clause (a) of sec.10(1) which was in identical terms.
24. The expression ‘desertion’ in the context of of matrimonial law represents a legal conception and is only very difficult to define. The essence of desertion is the forsaking and abandonment of one spouse by the other without reasonable cause and without the consent or against the wish of the other. It has been said more than once that no judge has ever attempted to give a comprehensive definition of desertion, and that probably no Judge would ever succeed in doing so, but among the descriptions of desertion one which has always appealed to courts trying matrimonial causes is that ‘desertion’ is ‘a withdrawal not from a place, but from a state of things’. This principle laid down in Pulford v. Pulford reported (1923) p.18, p.21. From the available materials we would like to express our view that the allegations levelled by the appellant cannot be termed as willful neglect on the part of the respondent.

27. However, it is a firmly established rule that the ground for the relief in a matrimonial cause should be strictly proved. As observed in the forgoing paragraphs, the standard of proof in case of all proceedings under the Act that the Court must be satisfied on a preponderance of probability that the ground for relief is proved and normally, the Court requires that the evidence of a spouse who charges the other spouse with a matrimonial offence should be corroborated. In the given case on hand, we are not able to find even a single piece of evidence relating to the allegation of cruelty and desertion to grant the relief of divorce as against the respondent.

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Judgment C.M.A.No.1652 of 2015 Madras High cOurt -The Law Literates

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