Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Hindu Marriage Act |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | Hindu Marriage Act, 1955: S.13-Divorce on the ground of cruelty and desertion-Desertion means withdrawing from the matrimonial obligations-Not permitting/facilitating the cohabitation between-Continuous .course of conduct to be determined, under the facts and circumstances of each case-One spouse abandoning the matrimonial home and declining to cohabitate-Amounts to forebearing to perform matrimonial obligation-There can be no desertion without previous co-habitation by the parties except on the ground of mental or physical incapacity or other peculiar circumstances of the case-Party seeking divorce has to prove that he/she is not taking advantage of his/her own wrong or disability. Cruelty may be mental or physical-Cruelty postulates treatment of one spouse as to cause a reasonable apprehension in his/her mind that it would be harmful or injurious to live with other spouse-It has to be distinguished from the ordinary wear and tear of family life-Sensitivity of the spouse with respect to conduct of other is termed as ordinary wear and tear of the family life and not cruelty. Right to appeal-Inference of-Right to appeal is a recognised right under legal jurisprudence-If one spouse solemnise 2nd marriage during pendency of appeal, he/she would do so at his/her own risk-Not permitted to flout the course of justice by overt and covert acts. Legislation-In the context of filing of appeal under the Act-30 days period is insufficient and inadequate-Other party may frustrate the appeal right of other side-Minimum period of 90 days for filing appeal may be prescribed and to declare marriage void if solemnised during the appeal period-Suggestion given.Marriage between appellant and respondent was solemnised on 6.5.1987. The appellant-wife started living separately with the respondent husband since 21st June, 1987 and according to the appellant the marriage was never consummated; and the respondent and his family members allegedly made demands of more and more dowry; and that since her parents could not fulfil such ever increasing demand of dowry, the respondent and his family members started torturing her on false pretexts; and that the respondent was having illicit relations with a lady with whom he was stated to have solemnised the marriage . The appellant filed a petition before the Matrimonial Court under Section 13 of the Hindu Marriage Act alleging cruelty and desertion against the 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 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 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. |
Judge | Hon'ble Mr. Justice R.P. Sethi |
Neutral Citation | 2002 INSC 5 |
Petitioner | Savitri Pandey |
Respondent | Prem Chandra Pandey |
SCR | [2002] 1 S.C.R. 50 |
Judgement Date | 2002-01-08 |
Case Number | 20 |
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