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Rabindranath Barik v. Smt. Pramila Bala Barik .

Orissa High Court

Dec 5, 1978

Judgment

Subsequent
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Factual and Procedural Background

The present matter is an appeal by the husband under Article 4 of the Orissa High Court Order read with Clause 10 of the Letters Patent against a reversing judgment of the learned Single Judge (Acharya, J.). The parties were married in March 1967 and lived together until July 1969 when the wife left for her father's house and did not return. On 17 March 1970 the husband filed a suit for restitution of conjugal rights in the Subordinate Judge's Court at Balasore.

The wife resisted the suit, alleging ill-treatment by her mother-in-law (habitual use of filthy and abusive language) and also complained that the husband's parents had failed to pay the promised dowry; she alleged that the mother-in-law poisoned the husband's mind against her and that she suffered nervous debility and became ill. At trial the plaintiff (husband) examined himself and three other witnesses; the defendant (wife) examined herself and two other witnesses including her brother. The Trial Judge held that the wife had a duty to live with her husband, found that the wife had not proved cruelty, and granted a decree for restitution of conjugal rights.

On the wife's first appeal to the High Court, the learned Single Judge reversed the Trial Judge: he found credible the wife's evidence of ill-treatment by the mother-in-law, observed that the husband had been influenced by his mother, and concluded that the husband's insistence upon the wife returning to her father-in-law's house appeared aimed at satisfying his parents rather than showing a genuine desire to resume matrimonial life. Attempts at reconciliation had been made; the wife agreed to return if the husband provided a separate residence where they could live in peace, but the husband pleaded inability to arrange such accommodation despite adjournments. The Single Judge dismissed the suit. The husband then appealed to the present Bench.

Legal Issues Presented

Whether the wife’s evidence of habitual ill-treatment by her mother-in-law amounted to "cruelty" such that restitution of conjugal rights should be refused.
Whether the Single Judge was correct to reverse the Trial Court's decree and dismiss the suit for restitution of conjugal rights.
Whether the appeal to this Court was maintainable (if the first appeal should have been before the District Court under the Bengal, Agra and Assam Civil Courts Act), and if a belated objection to maintainability justified vacating the Single Judge's decree.
Whether changed circumstances (the husband's later transfer to a school nearer the family home and his claim of inability to leave his aged parents) justified varying the Single Judge's decision.

Arguments of the Parties

Appellant's (Husband's) Arguments

The husband maintained that the wife had a legal duty to live with him and that the Trial Judge correctly found she had failed to substantiate cruelty; hence he sought restitution of conjugal rights.
At this stage of the letters patent appeal, counsel for the appellant sought leave to raise a new contention that the first appeal to the High Court was not maintainable because the suit was valued at Rs. 10 and the decree of the Subordinate Judge should have been appealed to the District Court under the Bengal, Agra and Assam Civil Courts Act (relying on Nrusingh Charan Nayak v. Hemant Kumari Nayak).
Later, the appellant contended there were changed circumstances: he had been transferred to a school (Raj Nilgiri) close to the family home such that he could live at home permanently and thus could now genuinely seek restitution; additionally he said his parents had become old and required his presence, affecting the practicality of living separately from them.

Respondent's (Wife's) Arguments

The wife alleged habitual ill-treatment by the mother-in-law, repeated abuses in filthy language, and that the mother-in-law poisoned the husband's mind; she also pleaded dowry-related grievance and resulting nervous debility and illness.
On appeal the respondent relied on the Single Judge's finding that she was justified in not returning to her in‑laws' house, especially as the husband was not residing there, and that the husband appeared motivated by his parents' wishes rather than a genuine desire to resume matrimonial life.
The respondent's counsel also asserted that no objection to the High Court's jurisdiction had been taken earlier and hence the Single Judge's decree should not be set aside on the ground of maintainability.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Evans v. Evans, 1 Hagg. Cons. p.35	Lord Stowell's articulation of "cruelty": causes must be grave and weighty; cruelty may affect comfort, health or life and courts should keep the rule strict; conjugal duties become impossible where personal danger exists or where duty of self-preservation overrides marital duties.	The Court quoted this passage to underscore the strictness of the cruelty standard and to frame the legal test (whether the duties of married life have become impossible) applied to the facts of habitual ill-treatment by the mother-in-law.
Russell v. Russell, 1897 App. C. 395	Lord Hobhouse's statement that cruelty is not confined to cases of personal danger; the wider criterion is whether conjugal duties have become impossible between the spouses.	The Court approved the broader criterion and applied it in assessing whether the wife's situation (habitual nagging and abuse by mother-in-law) made conjugal duties impossible.
Ramesh Chandra Roy v. Smt. Nandita Roy, 1974 1 C.W.R. 593	Discussion that whether conduct amounts to cruelty depends on facts; the usual test is whether consortium has become absolutely impossible; not every unpalatable behaviour is cruelty; courts must examine whether differences make married life untenable.	The Court relied on this articulation to decide that, on the facts (habitual, frequent nagging and abuse), the consortium had become sufficiently untenable to refuse restitution of conjugal rights.
Nrusingh Charan Nayak v. Smt. Hemant Kumari Nayak, 45 1978 C.L.T. 558	Bench decision indicating that appeals against decrees of courts other than the principal civil court of original jurisdiction (not the "District Court proper") do not lie to the High Court irrespective of valuation; appellate forum determined under the Bengal, Agra and Assam Civil Courts Act; where dispute valued up to Rs. 5,000 appeal lies to District Judge when impugned decree is of a court other than the principal civil court.	The Court acknowledged this authority to observe that, on the face of it, the first appeal ought to have been to the District Court. However, because no such objection was taken earlier and the case had been heard by the Single Judge, the Court declined to vacate the Single Judge's decree on that ground.
Pramilabala Barik v. Rabindranath Barik, A.I.R. 1977 Orissa 132	Reported judgment of the Single Judge which reversed the Trial Court's decree and dismissed the suit for restitution of conjugal rights.	The Court treated that reported Single Judge judgment as the reversing decree under challenge in the present letters patent appeal and affirmed its reasoning and result.

Court's Reasoning and Analysis

The Court proceeded in a structured manner:

Maintainability: The Court considered the late contention by the appellant that the first appeal to the High Court was not maintainable under the Bengal, Agra and Assam Civil Courts Act (relying on Nrusingh Charan Nayak). The Bench accepted that prima facie the appeal should have lain to the District Court but exercised its discretion not to vacate the Single Judge's decree because the objection was not raised earlier, the memorandum of letters patent did not raise this contention, and the Single Judge's decree could not be treated as a nullity merely on that ground.
Evaluation of evidence on cruelty: The Court examined the factual findings of the Single Judge, who accepted the wife's testimony that the mother-in-law habitually ill-treated and abused her in filthy language and had poisoned the husband's mind. The Court invoked established authorities on the test for "cruelty" (Evans v. Evans; Russell v. Russell; Ramesh Chandra Roy v. Nandita Roy) to restate the correct legal standard: the inquiry is whether the conjugal duties have become impossible, and whether the causes are grave and weighty.
Application to facts: Applying the above principles, the Bench agreed that habitual, frequent nagging and mental torture by the mother-in-law produced a situation where it was reasonable to conclude that the consortium had become effectively impossible. The Court therefore found itself unable to depart from the Single Judge's conclusion dismissing the suit.
Reconciliation attempt and separate residence condition: The Court noted the reconciliation attempts documented by the Single Judge and the wife's conditional willingness to return only if the husband arranged a separate residence. The husband repeatedly pleaded inability to arrange this; the Single Judge took this into account when dismissing the suit, and the present Bench affirmed that approach.
Changed circumstances: The appellant asserted subsequently that he had been transferred to a nearby school and could now reside at home permanently and was constrained by his duty to care for aged parents. The Court held these changed circumstances were not of a kind that justified varying the Single Judge's judgment at this time. However, the Court expressly recorded that the Trial Judge had found the husband not guilty of cruelty; accordingly, if in future the husband creates a situation in which he can live separately from his parents (whether at the family home or elsewhere), he would be entitled to renew his prayer for restitution of conjugal rights, unaffected by the present refusal.
Costs and final disposition: The Court directed that the parties bear their own costs throughout.

Holding and Implications

APPEAL DISMISSED

Holding (core ruling): The letters patent appeal by the husband fails and is dismissed; the decree of the learned Single Judge reversing the Trial Judge and dismissing the suit for restitution of conjugal rights is affirmed.

Implications:

The direct effect is that the plaintiff (husband) is not entitled to a decree for restitution of conjugal rights on the present record because the wife's credible evidence of habitual, frequent ill-treatment by the mother-in-law rendered conjugal duties effectively impossible.
The Court declined to set aside the Single Judge's decree on the procedural ground of appellate forum (that the first appeal should have been to the District Court) because that objection was not timely raised; the Single Judge's decree is therefore not treated as a nullity on this basis.
The Court did not find the subsequently asserted changed circumstances sufficient to vary the decree. However, the husband (who was found not to have committed acts of cruelty) remains entitled to renew his application for restitution if he later puts himself in a position where he can live apart from his parents and genuinely resume marital cohabitation.
No broader legal precedent or change in legal principle was announced beyond the application and reaffirmation of established tests for cruelty and the discretionary treatment of a belated jurisdictional/maintainability objection.

Judge(s): R.N. Misra, J. delivered the opinion; B.K. Ray, J. concurred ("I agree").

Show all summary ...

R.N Misra, J.:— It is a husband's appeal under Article 4 of the Orissa High Court Order read with Clause 10 of the Letters Patent and is directed against the reversing judgment of our learned brother Acharya, J.

2. In March, 1967, the appellant married the respondent. They lived together till July, 1969, when the wife went away to her father's house and did not return. On 17th March, 1970, the husband applied for restitution of conjugal rights to the learned Subordinate Judge at Balasore. The wife resisted the claim by contending that her mother-in-law was an ill-tempered land and she very often used to hurl abuses at the defendant in very filthy and objectionable language on some pretext or other as also on the ground that the defendant's parents had failed to pay the dowry as promised. The husband who was working as a teacher at a place away from home was occasionally coming home and the mother-in-law was poisoning his ears against the defendant. She pleaded that on account of such constant rebukes and abuses, she suffered from nervous debility and ultimately became ill. At the trial, plaintiff examined himself and 3 other witnesses and the defendant examined herself and 2 other witnesses including her brother. The learned Trial Judge proceeded on the footing that the wife had a legal duty to live with her husband and the defendant had failed to substantiate the plea of cruelty, and being satisfied that the husband was keen to have the company of the wife granted a decree for conjugal rights.

3. Upon wife's appeal to this Court, the learned Single Judge has come to hold:—

“On the oral and documentary evidence on record I am inclined to believe the case put forward by the defendant-appellant that during her stay in her father-in-law's house, her mother-in-law ill-treated her and made her stay in that house in a miserable proposition. From the tone of the husband's letter to his wife it is quite evident that the mother-in-law of the defendant was also successful in poisoning the ears of his son, the plaintiff, against his wife. On the above premises one cannot find fault with the defendant's disinclination to go back to her father-in-law's house, especially when her husband was not staying at that place. On the materials on record I am also inclined to. take the view that the plaintiff, instead of being particular about leading a matrimonial life with his wife, the defendant-appellant, was only insisting on the defendant to return to her father-in-law's house possibly only to satisfy the wishes of the plaintiff's parents. Consideration to satisfy the wishes of the parents without expressing and or indicating a sincere and genuine desire for restitution of conjugal rights, with all its legal trappings, obligations and duties, cannot enable a person to get a decree as prayed for in this suit.”

4. As it appears from the judgment of the learned Single Judge, an attempt for reconciliation was made and the wife seems to have agreed to return to the husband in case the husband was able to arrange a separate residence for the couple where she could live in peace in the company of the husband. The husband, however, pleaded inability even when several adjournments were granted and the learned Single Judge, therefore, ultimately reversed the decree and dismissed the suit. The judgment is reported in Pramilabala Barik… v. Rabindranath Barik…. . A.I.R 1977 Orissa 132.. This appeal has been carried by the husband against the said reversing decree.

5. Counsel for the appellant wanted leave of the Court to raise a question which had not been mooted in the first appeal, namely, that the appeal was not maintainable in this Court. Reliance is placed on a Bench decision of this Court in the case of Nrusingh Charan Nayak… v. Smt. Hemant Kumari Nayak…. . 45 1978 C.L.T 558., to support that plea. In the instant case the suit was valued at Rs. 10/- and the first appeal was given the same valuation. The decree being of the learned Subordinate Judge, the appeal, it is contended, should have been filed in the District Court and not in this Court as per the provisions of the Bengal. Agra and Assam Civil Courts Act. A Bench of this Court in that case indicated that:—

“Court other than the principal Civil Court of original jurisdiction which by notification made under section 3(b) of the Hindu Marriage Act are conferred with jurisdiction to entertain proceedings under the Act are not ‘District Court proper’ and irrespective of valuation an appeal would not lie against decree of such Courts to the High Court;

The appellate forum has to be determined in accordance with the provisions of the Bengal, Agra and Assam Civil Courts Act. Where the dispute is valued upto Rs. 5,000/-, the appeal would lie to the District Judge when the impugned decree is of a Court other than the principal Civil Court of original jurisdiction. ……………………………..”

6. In view of what has been stated by this Court in that case, undoubtedly the appeal in the instant case against the decree of the learned Subordinate Judge should have been laid before the District Court. But such an objection having not been raised and the present appellant having allowed the appeal to be heard by the learned Single Judge, we do not think it would be appropriate to vacate the decree of the learned Single Judge on that lone ground. We would like to point out that in the memorandum of letters patent appeal no such contention has been raised and there is force in the contention of the counsel for the respondent that the learned Single Judge was not a Court having no jurisdiction and the decree tendered in the first appeal cannot be held to be a nullity. We would not, therefore, entertain the argument of counsel for the appellant that the appellate decree should be vacated on the ground that the first appeal did not lie to this Court.

7. There is clear evidence that appellant's mother was of a nagging type and she was in the habit of hurling abuses in filthy language frequently. “Cruelty” has not been defined in the Hindu Marriage Act. Lord Stowell in Evans v. Evans . 1 Hagg. Cons. Page 35., observed:—

“What is Cruelty? In the present case it is hardly necessary for me to define it; because the facts here complained of are such as fall within the most restricted definition of cruelty; they affect not only the comfort, but they affect the health and even the life of the party. This, however, must be understood, that it is the duty of the Courts to keep the rule extremely strict. The causes must be grave and weighty, and such as to show an absolute imposibility that the duties of married life can be discharged. In a state of personal danger no duties can be discharged; for the duty of self-preservation must take place before the duties of marriage which are secondary both in commencement and obligation; but what falls short of this is with great caution to be admitted.”

8. With approval, Lord Hobhouse pointed out in Russell v. Russell . 1897 App. C. 395.:—

“Cruelty has never been confined to cases of personal danger but has been judged by a wider and more reasonable criterion expressed by Lord Stowell, namely, whether or no conjugal duties have become impossible between the litigant husband and wife.”

9. In the case of Ramesh Chandra Roy v. Smt. Nandita Roy . 1974 1 C.W.R 593., one of us pointed out:—

“What exactly would amount to cruelty in a given case would depend upon facts. But the usual test to be applied to a set of facts in a given case seems to be to find out whether the consortium has become absolutely impossible. When a man and a woman hitherto known or not known come to live together in a home as man and wife, a lot of adjustment becomes necessary. The two may have different aptitudes, varying likes and dislikes, opposite interests, conflicting hobbies, incompatible outlook and non-coalescing temper. In some cases the two minds may soon have fusion and in others there would soon grow indifference, neglect and aversion.

Every unpalatable behaviour of the other spouse is not necessarily ‘cruelty’, physical or mental, so as to afford a ground under section 10(1) of the Act. Most of the spouses-particularly in this country-have no occasion to prepare for marital life. Marriage comes as an event like any other - in life. Nature provides a lot of assistance to begin with - physical attraction, biological need, love, etc. Sometimes, however, parties to a marriage soon forget that married life is a joint adventure and they are not prepared to ‘bear and for bear’, differences occur and if they are not resolved amicably, they give rise to misunderstandings, and, if either spouse lacks the force of character and the art of tact and patience, the misunderstanding aggravate, and occasionally aggravate to such an extent that the parties begin to feel hostile to each other. Their problems are converted from mole hills into mountains. What was hitherto being yearningly looked for as a manifestation of love and overture now appears to be a challenge, a humiliating attack and an act of mental or physical torture. The relationship between the spouses is indeed very tender and has to be nourished with care, attention, love understanding and mutual respect.”

10. Ordinarily every Court is expected to uphold the institution of marriage and since the wife is bound to live in the consortium of the husband during the subsistence of marriage, the wife should be asked to return to the husband. In the instant case, however, as has been found by the learned Single Judge, the nagging was of habitual type and was too frequent to be tolerated. To live under constant dissatisfaction and mental torture is bound to give rise to a situation where it would become difficult to satisfy the test indicated by Lord Stowell in the decision referred to above. In the peculiar facts of this case, we are not in a position to take a view different from what has appealed to our learned brother.

11. We would accordingly affirm the decree of the learned Single Judge that the plaintiff is not entitled to ask for restitution of conjugal rights.

12. Counsel for the appellant brought before us a changed circumstance, namely, that the appellant who is a teacher has now been transferred to a school of Raj Nilgiri located at a short distance from the family home. It is submitted that the husband can now stay on permanent basis at home and go to the school in the morning and return in the evening after working hours. It is again stated that the appellant's parents have become old and they require nursing and constant attention. The appellant, therefore, is not in a position to abandon them and stay away in a different establishment along with his wife. We, however, do not think, these are circumstances which have brought about such a change that would justify the variation of the judgment of the learned Single Judge. We would, however, like to point out that there has been a finding that the husband is not guilty of any act of cruelty and, therefore, as and when the busband is in a position to create a situation where he can live separately from his parents -whether it is at the family home or at some other place he is entitled to renew his prayer for restitution of conjugal rights unaffected by the present refusal to give him a decree.

13. The appeal fails and is dismissed. We direct that parties do bear their own costs throughout.

14. B.K Ray, J.:— I agree.

Appeal dismissed.