Sm. Sulekha Bairagi Vs. Prof. Kamala Kanta Bairagi and anr. - Court Judgment

B.N. Maitra, J.

1. Petitioner has asked for divorce on the ground of his wife's adultery and alternatively for judicial separation on account of her cruelty. His allegation is that in the middle of May, 1959, he was married to Sulekha, respondent No. 1, according to Hindu rites. Since then they have been residing at Bangaon. He is a professor of Dina Bandhu Maha Vidyalaya College of that place. From the beginning she had no liking for him. During the last four years the relations between the two became strained. She often used to go out of the house with co-respondent No. 2, Biswanath. On the 13th September, 1970, at about 10 p. m., he went to his house, opened the closed door for it was unbolted from within and found that Sulekha was in a compromising position with Biswanath. At his sight Sulekha became very angry and gave orders to Biswanath to do away with him. Biswanath picked up the bolt of the door and struck him on the head with it. He suffered grievous hurt, informed the police and was hospitalised. He was detained there for 21 days. A criminal case is pending against her and Biswanath over that incident. When he was in the hospital Sulekha did not go there to see him. After that incident he became very much afraid and for fear of his life he was compelled to live elsewhere in a rented house. On the request of his father-in-law he did not institute the suit for he wanted to give her a chance to mend her ways. But she has been living in adultery with Biswanath and other unknown persons.

2. Respondent No. 1 filed a written statement denying the petitioner's allegations. It has been alleged, inter alia, that on that night of the 13th Sept. 1970, the petitioner suddenly appeared before her and asked her to sign on a paper signifying her consent to his marriage with some other woman. She declined to comply with the request. Thereupon the petitioner flew into a rage and slapped her. All of a sudden, he fell down and sustained an injury in the head. She did not treat the petitioner with cruelty.When he was hospitalised, she used to go there and nurse him.

3. The learned Additional District Judge stated that the story of commission of adultery was not proved. He believed that Biswanath inflicted injury on the petitioner's head at her instance. So, on the ground of cruelty he passed a decree for judicial separation against respondent No. 1. Hence this appeal by the wife.

4. It has been contended on behalf of the appellant that in view of the provisions of Section 23(1)(d) of the Hindu Marriage Act, the petitioner is bound to explain the unreasonable delay of about three years and a half in filing the present suit. Reference has been made to the cases reported in : [1964]7SCR267 and : AIR1979Guj98 . The delay has not been explained and hence the suit will fail on that ground. The petitioner has come up with the story of cruelty on a solitary occasion. The single act of cruelty is not sufficient. It cannot be believed that Biswanath would commit sexual intercourse with her at that hour of the night, while the petitioner's mother and their five children were living in that house. The learned Additional District Judge rightly disbelieved that story. Reference has also been made to the case reported in : AIR1970Cal266 . It is true that the petitioner filed a criminal case against the respondents and both of them were convicted by the trial court. Biswanath did not move this Court against the order of conviction. But Sulekha came up in revision. Her revisional application was allowed by the High Court and she earned an acquittal It cannot be believed that Biswanath assaulted him at her instance. There was a scuffle. The petitioner fell down and sustained the injury in the head. The true version of the incident has been kept back from the court by the parties.

5. It has been urged on behalf of the husband respondent No. 1 that the Hindu Marriage Act was amended by the Marriage Laws (Amendment) Act 68 of 1976. Section 39 (1) of the amending Act shows that all the amendments apply to pending cases and such amendment is retrospective in operation. Previously, according to the provisions of Section 10(1)(b), it was necessary to prove that the petitioner had treated the respondent with such cruelty as to cause a reasonable apprehension in the mind of the respondentthat it would be harmful or injurious for the latter to live with the other party. According to Clause (i) of Sub-section (1) of Section 13 of the amended Act, a divorce could be granted if the other party was living in adultery. But after the amending Act of 1976 came into force, it is no longer necessary to prove that the party concerned was living in adultery. ' In view of Clause (i) of Sub-section (1) of Section 13 of the amending Act it has to be proved that the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. Since there has been a radical change in the law by the amending Act of 1976, the petitioner has filed a cross-objection. The Court should consider the probability of the matter because it is clear from the evidence that Biswanath was present in the petitioner's house on that night at 10 O'clock. That fact itself shows that the allegation of adultery is true. The petitioner is not supposed to sustain such injury in the head by a mere fall on the muddy ground. The court will believe the allegation of cruelty and find that Biswanath actually gave him a hit on the head with the bolt of the door at Sulekha's instigation.

6. The case of the alleged delay may be dealt with first. It is common ground that the husband did not take things lying down because after sustaining such injury an information was given to the police straightway and the criminal case initiated. The Magistrate convicted both the respondents. Biswanath did not move the High Court, but Sulekha did and was successful. Mr. Roy appearing on her behalf has not filed the judgment of the revisional case.

7. Let it be seen what will be the effect of such acquittal. After following the Privy Council case reported in 17 Weekly Reporter 283, it has been stated by Harries, C. J. and Singh, J., in the Bench case in AIR 1936 All 537 that the judgment of the criminal court is relevant only to show the fact of acquittal and nothing else. That judgment is in no way binding on the civil court, which must hear both the parties and decide the case itself. Of course, that was a case for recovery of damages for malicious prosecution. B. P. Sinha, C. J., has stated in the case of Anil Behari Ghosh v. Sm. Latika Bala Dassi in : [1955]2SCR270 , that the judgment of the criminal case is relevant to show that it resulted in conviction and sentence. It is not the evidence of the fact that the son was the testator's murderer in that case. That fact of murder by the son will have to be decided on the evidence on record, vide the observations at page 571 of the report. So in spite of her acquittal the correct state of affairs will have to be considered by this Court. P. W. 1 Kamala Kanta is the petitioner. He has stated that he wanted to institute the suit for divorce. But due to the persuasion of his father-in-law he did not file that suit because he decided to give a chance to the wife to rectify herself. But she did not avail of that chance and hence he was compelled to institute the suit. O. P. W. 2 Swapan says that the petitioner told Sulekha to get over her misconduct. Since he made no delay in informing the police and getting the criminal case filed, we are of opinion that there was no unreasonable delay and the alleged lapse of three and a half years has been sufficiently explained by him.

8. Now, we shall deal with the question of alleged adultery because the husband has filed a cross-objection. Regarding this, we are getting only the uncorroborated testimony of P. W. 1 Kamala Kanta. This is a serious allegation and Court will call for corroboration of the statement of the husband. The probabilities are against him because his evidence shows that the door though shut, was unbolted. His mother and five grown-up children were present in that house at that hour of the night. So, in the normal course it cannot be believed that on the 13th Sept. 1970, at 10 p.m. Biswanath was actually committing sexual intercourse with her leaving the door unbolted. We, therefore, hold that this part of the petitioner's allegation was not proved by clear and cogent evidence.

9. Then about the case of cruelty. The evidence of P. W. 1, Kamala Kanta shows that Sulekha told Biswanath to finish him. Biswanath hit him on the head with the bolt of the door, thus he sustained injury and he was hospitalized. He had to remain in hospital for more than twenty days. His version of sustaining an injury on the head has been corroborated by P. W. 2 Amiya and P. W. 3 Panchanan. Both of them are disinterested and natural witnesses to the occurrence. On behalf of the appellant there has been no criticism of the evidence of the last 2 P. Ws.

10. Sulekha, O. P. W. 4, and Biswanath, O. P. W. 5, denied the story of thehitting or of instigation by her. But it cannot be believed that the petitioner slipped on the muddy ground and sustained such injury on the head. In such circumstances we are disposed to believe the evidence of the P. Ws. and find that the story of hitting by Biswanath on the head at the instigation of Sulekha is true and there was cruelty on her part.

11. It has to be seen whether such cruelty is sufficient to grant relief according to the provisions of the Hindu Marriage Act.

12. Let us consider if the amending Act of 1976 is retrospective in operation. The relevant portions of Sub-sections (1) and (2) of Section 39 of the amending Act read as follows :--

'39. Special provision as to pending cases-

(1) All petitions and proceedings in causes and matters matrimonial which are pending in any court at the commencement of the Marriage Laws (Amendment) Act, 1976, shall be dealt with and decided by such courts-

(i) if it is a petition or proceeding under the Hindu Marriage Act, then so far as may be, as if it had been originally instituted therein under the Hindu Marriage Act, as amended by this Act; (2) In every petition or proceeding to which Sub-section (1) applies, the court in which the petition or proceeding is pending shall give an opportunity to the parties to amend the pleadings in so far as such amendment is necessary to give effect to the provisions of Sub-section (1), within such time as it may allow in this behalf and any such amendment may include an amendment for conversion of a petition or proceeding for judicial separation into a petition or proceeding, as the case may be, for divorce.'

13. K. C. Das Gupta, J. has stated in the case of Mahadeolal Kanodia v. Administrator General of West Bengal, reported in : [1960]3SCR578 that substantive rights are ordinarily prospective and they are retrospective only if by express words or by necessary implication the Legislature has made them retrospective. The intention of the Legislature has to be gathered from the words used by it. The words used in Clause (i), Sub-section (1) of Section 39 of the amending Act are clear. The expression 'as if it had been originally instituted therein under the Hindu Marriage Act, as amended by the Act' is a clear pointer that the amendment is retrospective in operation, and we find accordingly. In the case of Debi Bhaduri v. K. Bhaduri : AIR1980Cal1 (FB) it has been stated that that section has retrospective effect

14. Of course, both the sides have referred to some decisions of different High Courts on this. Since there is a decision of the Supreme Court, we may refer to that decision only. In the well-known case of Dr. N. G. Dastane v. Mrs. S. Dastane, : [1975]3SCR967 , Mr. Justice Chandrachud has held that cruelty need not be proved beyond reasonable doubt. Unlike English law, it is not necessary that the cruelty must be of such a character as to cause danger to life, limb or health as to give rise to a reasonable apprehension of such a danger.

15. It has already been indicated that according to the provisions of Section 10(1)(b) of the unamended Act it was necessary for the petitioner to prove that the cruelty was of such a character as to cause a reasonable apprehension in his mind that it. will be harmful or injurious for him to live with the other party. The amended Section 13(1)(ia) says that a decree for divorce can be passed if the other party has, after the solemnization of the marriage, treated the petitioner with cruelty. It has been urged for the respondent that after such radical amendment, mere cruelty is enough to ask for divorce. It is no longer necessary to prove that the cruelty in question is of such a nature as to cause a reasonable apprehension in the petitioner's mind that it will be harmful or injurious for him to live with his wife. We are of opinion that the position of law is still the same though the amending Act of 1976 has come into force. Even after the amendment cruelty simpliciter will not suffice. The petitioner will have to prove that the cruelty is of a nature as to give rise to a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the other party. Ordinarily a single act of violence is not sufficient for the purpose. But it is possible in the particular circumstances even for a single act of a grossly violent character to constitute a legal cruelty. The principles discussed in the cases in AIR 1938 Bom 81 and may be referred to.

16. There is another important aspect of the case. After that incident of beating, the petitioner did not return home, where respondent No. 1 has been living with her five children. He has been living elsewhere in a rented house at Bangaon. The question arises, why he hasbeen so living elsewhere and not residing in his own house with his children. Of course, O. P. W. 4. Sulekha. has stated in her evidence that previously her husband had illicit connexion with one Dipali and now he has been living separately with one Jaya, who is the daughter of a maid-servant. She has been sought to be corroborated by the other O, P. Ws. 1 to 3. O. P. W. 1 Madhusudan has been constrained to admit in his cross-examination that he does not recall in which year or month he saw the petitioner visit Jaya. O. P. W. 2 Swapan says that the petitioner moved about with Dipali and Jaya. He calls Biswanath brother. Like the O. P. W. 4 Sulekha, her father (O. P. W. 3 Nandan Adhikari) is an interested witness. The learned Judge rightly rejected their testimony.

17. This has been denied by P. W. 1 Kamala Kanta. He is a double M. A. and professor of a college at Bangaon. We are not inclined to believe her version in this respect because her statement has not been corroborated by clear and cogent evidence. The fact that after that night, the petitioner did not live in that house, goes a long way in establishing his case that he was apprehensive of his safety. Previously there was an act of grossly violent character. There is a reasonable apprehension in his mind that it will be harmful for him to live with the respondent in his own house for such violence may be repeated. P. W. 1, Kamala Kanta, has stated that when he was detained in the hospital for more than twenty days, Sulekha did not care to go to him. Perhaps the criminal case would have been compounded if she had gone there to see her husband. This lays bare her mental attitude and proves that Sulekha is actually guilty of cruelty towards her husband. In the facts and circumstances of the case, we accept the petitioner's version and hold that on the ground of cruelty the learned Additional District Judge rightly passed a decree.

18. According to Sub-section (2) of Section 39 of the amending Act 68 of 1976, the petitioner is required to pray for amendment of the petition and ask for divorce instead of judicial separation. But no such petition was filed for conversion and for amendment with a view to granting a decree for divorce. Consequently in spite of the provisions of Section 13(1)(ia), we cannot grant a decree for divorce on the ground of cruelty.

19. No argument has been advanced regarding the custody of the children ortheir maintenance. So, these questions are left open.

20. The appeal is, therefore, dismissed. The cross-objection is also dismissed. There will be no order as to costs regarding both.

Chittatosh Mookerjee, J.

21. I agree.