RAVI KUMARversusJULMIDEVI

                   [2010] 2 S.C.R. 545


                         RAVI KUMAR                                 A
                               v.
                          JULMIDEVI
               (Civil Appeal No. 1868 of 2007)
                     FEBRUARY 09, 2010
                                                                    B
  [P. SATHASIVAM AND ASOK KUMAR GANGULY, JJ.]

     Hindu Marriage Act, 1955:

      s. 28 - Power of High Court - Scope of - Held: While          c
 exercising power under s. 28, High Court as the first court of
 appeal is both a court of law and also of facts - In exercise of
 its power, first appellate court can come to a finding different
·from one arrived at by trial court - Code of Civil Procedure;
 1973 - Order 41 r. 33 - Power of appellate court.                  0
      s.13(1)(ia) and (ib) - Divorce petition filed by husband
on the ground of cruelty and desertion - Decreed by trial court
- Decree reversed by High Court - On appeal, held: No
reason to interfere with the order of High Court - Evidence of
daughter of parties was vital in the facts of the case - She        E
clearly stated that her father used to beat her mother - Thus,
wife had sufficient reason to live apart, and cannot be held
guilty of either cruelty or desertion.

     Words and Phrases:                                             F
     Cruelty in matrimonial cases - Meaning of.

    Appellant-husband filed divorce petition on the
ground of cruelty and desertion. District Judge granted
decree of divorce. High Court set aside the decree. Hence           G
the appeal.

    Dismissing the appeal, the Court

    HELD: 1.1. It cannot be disputed that while exercising
                              545                                   H
    546      SUPREME COURT REPORTS                 [2010] 2 S.C.R.


A its power under Section 28 of the Hindu Marriage Act, the
  High Court, as the first Co~rt of appeal is both a Court of
  law and also of facts. The power of the appellate court
  as explained in Order 41 Rule 33 of the Civil Procedure
  Code are very wide. Therefore, in exercise of its power;
B the First Appellate Court can come to a finding different
  from the one which has been arrived at by the trial Court
  especially in a case where appreciation of evidence by
  the trial Court is not proper. In the instant case, trial Court
  did not properly appreciate the evidence of the child. The
c evidence of the child is very vital in the facts and
  circumstances of this case of matrimonial discord. The
  child clearly stated the cruelty of the appellant-husband
  towards his wife. The daughter in her evidence
  categorically stated that her father used to beat her
  mother. She denied that her mother abused her father but
0
  she repeatedly deposed that her father used to beat her
  mother and the reasons of which were not known to her.
  Therefore, there was sufficient reason for the wife to stay
  apart. Under such circumstances one cannot say the
E wife was guilty of either cruelty or desertion. [Paras 12,
  14, 15 and 17] [550-H; 551-A-H; 552-A-B]
        S. Nazeer Ahmed v. State Bank of Mysore (2007) 11
    SCC 75; Samundra Devi & Ors. v. Narendra Kaur & Ors. AIR
    2008 SC 3205, relied on.
F
          Mui/a (CPC 15th Edition), referred to.

      1.2. It may be true that there is no definition of cruelty
  under the Act. Actually such a definit!on is not possible.
  In matrimonial relationship, cruelty would obviously
G mean absence of mutual respect and understanding
  between the spouses which embitters the relationship
  and often leads to various outbursts of behaviour which
  can be termed as cruelty. Sometime cruelty in a
  matrimonial relationship may take the form of violence,
H some time it may take a different form.- At times, it may be
              RAVI KUMAR v. JULMIDEVI                    547


just an attitude or an approach. Silence in some                A
situations may amount to cruelty. Therefore, cruelty in
matrimonial behaviour defies any definition and its
category can never be closed. Whether husband is cruel
to his wife or the wife is cruel to her husband has to be
ascertained and judged by taking into account the entire        B
facts and circumstances of the given case and not by any
pre-determined rigid formula. Cruelty in matrimonial
cases can be of infinite variety - it may be subtle, or even
brutal and may be by gestures and words. [Para 18] [552-
C-F]                                                            C
   Dastane v. Dastane (1975) 2 SCC 326; Shobha Rani v.
Madhukar Reddi AIR 1988 SC 121, relied on.

     Sheldon v. Sheldon (1966) 2 All E.R. 257; Gollins v.
Gol/ins (1963) 2 All. E.R. 966, referred to.                    D
                     Case Law Reference:
    (2007) 11 sec 75         relied on             Para 16
    AIR 2008 SC 3205         relied on             Para 16      E
    (1966) 2 All E.R. 257    relied on             Para 18
    (1963) 2 All. E.R. 966   relied on             Para 19
    (1975) 2 sec 326         referred to           Para 20
                                                                F
    AIR 1988 SC 121          referred to           Para 20
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1868 of 2007.

    From the Judgment & Order dated 7.6.2005 of the High        G
Court of Himachal Pradesh at Shimla in F.A.O. No. 95 of 2005.

    Gurukrishna Kumar, Rajesh Pathak, Anil Bhati, Dhirendra
Pratap Singh and Sumit Kumar for the Appellant.
     '
    J.S. Attri, Balraj Dewan for the Respon®nt.                 H
    548      SUPREME COURT REPORTS                    [201 O] 2 S.C.R.


A         The Judgment of the Court was delivered by

        GANGULY, J. 1. The husband is in appeal before us
    impugning the Judgment and Order of the High Court in a
    Matrimonial Proceeding whereby the Judgment and Order of
    the District Judge, Mandi in Hindu Marriage Petition No.20 of
8
    2002 dated 27.10.2004 was reversed by the High Court.

        2. The marriage between the parties took place on
  13.12.1988 according to Hindu rites and customs and in March,
  1990 a girl child was born to them. The husband alleged that
C after the birth of the girl child, his wife left for parental house at
  village Samlet and spent her period of maternity leave there. It
  was further alleged that his wife, whowas working, on being
  transferred from Garli to Chauaku, stayed at Chauaku instead
  of in the matrimonial home which was only at a distance of 3
o Kms. from the place of her posting. However, the husband
  admitted that in May, 1994, his wife came to his house for a
  short period and stayed there with him till the month of May,
  1994. Thereafter, his wife is alleged to have permanently
  deserted him. The further allegation is that in September, 1996,
E he tried to bring his wife back to his residence for staying with
  him and his old parents but she refused to do so.

       3. Ultimately, the appellant filed a proceeding under
  Section 9 of the Hindu Marriage Act (hereinafter referred to as
  the Act) for restitution of conjugal rights and that was contested
F by his wife. Ultimately a compromise was arrived at before the
  Lok Adalat and the learned Sub-Juda"e, Sarkaghat presiding
  over the Lok Adalat passed an Order on 26-9-1998 treating
  the said petition under Section 9 as withdrawn, having ended
  in a compromise. The statements of the parties before the Lok
G Adalat were recorded and formed part of the decree. The
  statements, recorded before the Lok Adalat, may be set out
  hereinbelow:-

          (a) Statement of appellant - Husband

H         Stated that I shall provide room and kitchen for proper
               RAVI KUMAR v. JULMIDEVI                         549
              [ASOK KUMAR GANGULY, J.]

     living to my wife Julmi Devi and I shall· not trouble her in . A
     any manner.

     (b) Statement of respondent - Wife

     Stated that I am prepared to live with my husband Shri Ravi
     Kumar, I shall live with my husband properly.                     B

     4. The allegation of the appellant is that his wife did not
comply with the stand taken before the Lok Adalat by residing
with him and continued to stay separately. The appellant, being
frustrated thereby, filed a petition for a decree of divorce and       C
dissolution of marriage on the grounds of cruelty and desertion.
It was numbered as Petition No.20 of 2002.

     5. Initially, the District Judge, Mandi made some
unsuccessful efforts to bring about a reconciliation between the       D
parties. Then the proceeding was ultimately tried and evidence
was recorded and by a Judgment and an Order dated
27.10.2004, the learned District Judge granted a decree of
divorce which was challenged by the respondent wife before
the High Court and the High Court reversed the finding of the
learned District Judge.                                                E

     6. While reversir:ig the finding of the learned District Judge,
the High Court acted in exercise of its powers under Section
28 of the Act. In doing to, the High Court acted as a first Court
of appeal, which is a Court, both on facts and law. The High           F
Court noted the case of the parties and also the evidence which
was adduced before the Trial Court.

      7. Several questions cropped up in the course of hearing
 before the High Court. One of them being whether in view of
filing of a proceeding for restitution of conjugal rights, the         G
appellant had condoned all alleged prior acts of cruelty of the
wife. The High Court after considering some decisions came
to a finding that by filing a petition under Section 9 of the Act,
the appellant had condoned the earlier alleged acts of cruelty
of the respondent wife. Condonation is· basically a question of        H
    550      SUPREME COURT REPORTS                    [2010] 2 S.C.R.


A fact. This Court finds that reasoning of the High Court on
  condonation in the facts of this case is correct.

         8. After recording the said finding, the High Court noted
    that there is no specific allegation by the appellant of wife's
    cruelty and in his deposition also husband does not refer to any
8
    specific instances of cruelty by his wife. In the absence of such
    specific allegations, the learned Trial Court was, in the opinion
    of the High Court, in error by granting a divorce on grounds of
    cruelty.

C      9. From the petition filed by the appellant husband, it
  appears that in paragraph 6 of the said petition, the proceeding
  under Section 9 of the Act has been referred to. After the said
  paragraph, this Court finds that in paragraphs 7, 8, 9, 10 and
  11 there is no specific allegation of cruelty against the wife.
D There are some vague allegations but no allegation with
  specific particulars has been given about the alleged cruelty of
  the respondent wife. No specific case of desertion has been
  pleaded either.

E       10. It may be noted only after the amendment of the said
  Act by the amending Act 68 of 1976, desertion per se became
  a ground for divorce. On the question of desertion, the High
  Court held that in order to prove a case of desertion, the party
  alleging desertion must not only prove that the other spouse was
  living separately but also must prove that there is an animus
F deserendi on the part of the wife and the husband must prove
  that he has not conducted himself in a way which furnishes
  reasonabJe cause for the wife to stay away from the
  matrimonial home.

G         11. Looking to the materials which have come on record
    in this case, it is clear that the wife had sufficient ground to live
    separately. In this case, the evidence of the daughter is very
    crucial.

          12. The daughter in her evidence categorically stated that
H
               RAVI KUMAR v. JULMIDEVI                         551
              [ASOK KUMAR GANGULY, J.]
her father used to beat her mother. She denied that her mother        A
abused her father but she repeatedly deposed that her father
used to beat her mother and the reasons of which are not
known to her.                                                                 .,
       13. It has been argued by the learned counsel for the
                                                                      B       l
 appellant that Appellate Court did not have the occasiori to                  ~
 appreciate the demeanour of the witnesses and the High Court                 ,c
                                                                              t
 acting as a First Appellate Court ought not to reverse a finding         lit
                                                                              \
 which was arrived at by the learned Trial Court.                                 \


     14. It is difficult for this Court to accept the aforesaid       c
contention. It cannot be disputed that while exercising its power
u.nder Section 28 of the said Act, the High Court, as the first
Court of Appeal is both a Court of Law and also of facts.
                                                                                  1
                                                                                  (-
                                                                                  ~
        15. The power of the Appellate Court as explained in Order    D           t
                                                                                  i
  41 Rule 33 of the Civil Procedure Code shows that very wide
  powers have been conferred. Commenting on the width of this
  power, Mulla (CPC 15th Edn, p. 2647) commented that this
                                                                              ~
  rule is modelled on Order 59, rule 10(4) of the Supreme Court                   \
  of Judicature in England. The learned author further commented                  ,,
                                                                      E
  that the object of this rule is to empower the appellate court to       ,-1
. do complete justice between the parties.                                             (
                                                                              . ~


      16. This Court is in respectful agreement with the aforesaid                     j

commentary of Mulla on order 41 Rule 33 with one rider. If there
is ·a legal interdict, the rule will not apply - (See S. Nazeer       F
Ahmed vs. State Bank of Mysore - (2007) 11 SCC 75 and
which has been followed in Samundra Devi & Ors. vs.
Narendra Kaur & Ors.-AIR 2008 SC 3205 at para 19, p 3208).

     17. Therefore, in exercise of its power, the First Appellate
                                                                                  '
                                                                      G
Court can come to a finding different from the one which has
been arrived at by the Trial Court especially in a case where
appreciation of evidence by the Trial Court is not proper. In the
instant case, this Court finds that Trial Court has not properly
appreciated the evidence of the child. It may be noticed here
                                                                      H
                                                                          !·I

                                                                          (
    552       SUPREME COURT REPORTS                 [2010] 2 S.C.R.,


A that the evidence of the child is very vital in the facts and
  circumstances of this case of matrimonial discord. In this case
  the child has clearly stated the)cruelty of the appellant-husband
  towards his wife. Therefore, there is sufficient reason for the
  wife to stay apart. Under such circumstances one cannot say
B the wife is guilty of either cruelty or desertion.

        18. It may be true that there is no definition of cruelty under
  the said Act. Actually such a definition is not possible. In
  matrimonial relationship, cruelty would obviously mean absence
  of mutual respect and understanding between the spouses
C which embitters the relationship and often leads to various
  outbursts of behaviour which can be termed as cruelty.
  Sometime cruelty in a matrimonial relationship may take the
  form of violence, some time it may take a different form. At
  times, it may be just an .attitude or an approach. Silence in some
D situations may amount to cruelty. Therefore, cruelty in .
  matrimonial behaviour defies any definition and its category can
  never be closed. Whether husband is cruel to his wife or the
  wife is cruel to her husband has to be ascertained and judged
  by taking into account the entire facts and circumstances of the
E given case and not by any pre-determined rigid formula. Cruelty
  in matrimonial cases can be of infinite variety - it may be subtle
  or even brutal and may be by gestures and words. That possibly
  explains why Lord Denning in Sheldon vs. Sheldon, [(1966) 2
  All E.R.257] held that categories of cruelty in matrimonial cases
F are never closed.

         19. This Court is reminded of what was said by Lord Reid
    in Gollii1s vs. Gollins [(1963) 2 All. E.R. 966] about judging
    cruelty in matrimonial cases. The pertinent observations are:

G         "In matrimonial cases we are not concerned with the
          reasonable man, as we are in cases of negligence. We
          are dealing with this man and this woman and the fewer a
          priori assumptions we make about them the better. In
          cruelty cases one can hardly. ever start with a presumption
H         that the parties are reasonable people, because it is hard
                 RAVI KUMAR v. JULMIDEVI                         553
                [ASOK KUMAR GANGULY, J.]

       to imagine any cruelty case ever arising if both the             A
       spouses think and behave as reasonable people."

       20. The aforesaid passage was quoted with approval by
this Court in Dastane vs. Dastane [(1975) 2 SCC 326]. About
changing perception of cruelty in matrimonial cases, this Court
                                                                        B
observed in Shobha Rani vs. Madhukar Reddi -AIR 1988 SC
121 at page 123 of the report:

       "It will be necessary to bear in mind that there has been a
       marked change in the life around us. In matrimonial duties
       and responsibilities in particular, we find a sea change.        C
       They are of varying degrees from house to house or
       person to person. Therefore, when a spouse makes
       complaint about the treatment of cruelty by the partner in
       life or relations, the court should not search for standard
       in life. A set of facts stigmatised as cruelty in one case may   D
       not be so in another case. The cruelty alleged may largely
       depend upon the type of life the parties are accustomed
       to or their economic and social conditions. It may also
       depend upon their culture and human values to which they
       attach importance. We, the judges and lawyers, therefore,        E
       should not import our own notions of life. We may not go
       in parallel with them. There may be a generation gap
       between us and the parties".

    21. For the reasons aforesaid, this Court does not find any
reason to interfere with the judgment of the High court.                F

       22. The appeal is dismissed. The parties are to bear their
own costs.

D.G.                                           Appeal dismissed.