SAVJTRI PANDEY v. PREM CHANDRA PANDEY

The appellant filed a petition before the Matrimonial Court under Section 13 of the Hindu Marriage Act alleging cruelty and desertion against the C husband, praying for dissolution of her marriage and to return her ornaments. The respondent also filed a petition seeking divorce. However the same was withdrawn. The Family Judge allowed the petition, dissolved the marriage on the ground of desertion and also granted other reliefs like alimony, return of jewels etc. Aggrieved by the order, husband preferred appeal. Not fully satisfied with the other reliefs, wife preferred an appeal. High Court disposed of both D the appeals setting aside the order of the Family Judge. Hence this appeal. It was contended for the appellant as she was proved to have been living separately, it was to be presumed that the respondent had deserted her; that after the decree of divorce by the Family Judge the appellant had remarried E and out of second marriage a child was also stated to have been born and, therefore, it would be in the interest of justice and the parties that the marriage between them was dissolved . Dismissing the appeal, the Court F HELD: 1. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be G decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case, the averments made in the petition and evidence led in supi)ort thereof clearly shows that the allegation, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be H 52 SUPREME COURT REPORTS [2002] l S.C.R. A termed more than ordinary wear and tear of the family life. (55-F-G-H; 56-A-B)

2.1. 'Desertion', for the purpose of seeking divorce under the Act means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In B other words withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating co-habitation between the parties. The proof of desertion bas to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race permitting lawful indulgence c in passion to prevent licentiousness and procreation of children. Desertion is not a single act complete in itself. It is continuous course of conduct to be determined under the facts and circumstance of the case. [56-D-E-F) Bipinchandra Jaisinghbhai Shah v. Prabhavati, AIR (1957) SC 176 and Lachman Utamchand Kirpa/ani v. Meena alias Mota, AIR (1964) SC 40, relied D on. E

2.2. There can be no desertion without previous cohabitation by the parties. The basis for this is built upon the recognised position of law in matrimonial matter that no one can desert who does not actively or wilfully bring to an end the existing stage of cohabitation. However, such a rule is subject to just exception viz, on the ground of mental or physical incapacity or other peculiar circumstances of the case. However, the party seeking divorce on the ground of desertion is required to show that he/she was not taking the advantage of his/her own wrong or disability for the purpose of relief under the Act. In the present case, in the absence of co-habitation and consumption of marriage, the appellant was disentitled to claim divorce on the ground of F desertion. (59-B-C-E)

#3. There is no denial of the fact that right of at least one appeal is a recognised right under all system of civilised legal jurisprudence. If despite the pendency of the appeal, the appellant chose to solemnise the second marriage, the adventure is deemed to have been undertaken at her own risk G and the ultimate consequences arising out of the judgment in the pendency of appeal. No person can be permitted to flout the cause of justice by his/her overt and covert acts. [60-E-F)