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  • Atma Ram
  • H.L. Sarin
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  • Dua, J.
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  • Atma Ram
  • H.L. Sarin
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  • Dua, J.
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Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

The appellant, Gurcharan Singh, sought restitution of conjugal rights against his wife, Smt. Waryam Kaur, under section 9 of the Hindu Marriage Act. The parties were married in June 1954 and have a son born of the marriage, then about 2½ years old. On 16 July 1957 the wife applied for maintenance under section 488 of the Criminal Procedure Code. The husband sent a notice (apparently dated about 17 July 1957) asking the wife to return; the husband's petition for restitution was filed on 9 October 1957, alleging withdrawal of the wife from his society without reasonable cause and asserting that the cause of action culminated when she finally refused to return after his requests.

The wife resisted the petition, pleading ill-treatment/cruelty by the husband and his relatives, that her father took her to his house with the help of respectable persons, and that the husband falsely accused her of adultery. The trial Court (Subordinate Judge 1st Class, Malerkotla) framed three issues — maintainability, maltreatment/adultery allegation, and relief — and after amendment held the petition maintainable but, on the merits, found delay, desertion, that the petition was not bona fide, and that the husband had doubted the child's parentage (an imputation of immorality). The trial Court dismissed the husband's petition.

The husband appealed; the appeal was admitted by a Division Bench. The wife applied under section 24 of the Hindu Marriage Act for payment of maintenance and costs awarded below and for maintenance pendente lite. A Single Judge (Harbans Singh J.) ordered payment of maintenance installments and Rs. 120 towards appeal expenses; that order was not appealed and was therefore considered final. Subsequent non-compliance led the wife to file an application under Order 151 CPC seeking enforcement; Grover J. ordered that the Court below execute the Single Judge's order. The husband appealed to this Court against the dismissal of his restitution petition; the Court in this opinion also considered a preliminary objection raised by the wife that the appeal should be stayed because of the husband's non-compliance with the Court's earlier order.

Legal Issues Presented

  1. Whether the husband's petition for restitution of conjugal rights under section 9 of the Hindu Marriage Act should be granted in light of the facts (alleged cruelty, desertion, delay, and imputation of adultery).
  2. Whether the trial Court's findings (delay, desertion/making wife leave marital home, petition not bona fide, and imputation of immorality regarding the child's parentage) were justifiable on the evidence and should be interfered with on appeal.
  3. Whether the appeal should be stayed (or the appellant precluded from prosecuting the appeal) because of alleged contempt by non-compliance with the Single Judge's order of 27 January 1959 (payment of maintenance and appeal expenses), in the light of authorities permitting courts to refuse further hearing to parties in contempt.

Arguments of the Parties

Appellant's (Husband's) Arguments

  • The only defence pleaded by the wife in her written statement related to cruelty and reasonable apprehension; the trial Court wrongly took other factors into account when refusing restitution.
  • No particular instance of beating was proved; the wife's and her brother's accounts contradict each other; there is no medical evidence of injuries.
  • The allegation of adultery, unless imputed to third parties, would not significantly assist the wife.
  • There was no undue delay: the husband filed his petition once he realized the wife had finally refused to return.
  • The husband had made efforts (including representations to a Panchayat) to bring the wife back; when he gave the notice he could not have known of the wife's maintenance application under section 488 CrPC.
  • With respect to the preliminary objection, counsel argued that Grover J.'s order on 4 May 1959 (directing execution by the Court below) should be treated as a refusal of the wife's prayer to stay the appeal and that there was therefore no question of the appellant being in contempt; the appeal should not be adjourned for compliance.

Respondent's (Wife's) Arguments

  • The wife alleged ill-treatment and cruelty by the husband and his relatives and that her father, with respectable persons, had brought her to his home because of this cruelty.
  • The husband had falsely accused her of adultery and had not taken bona fide steps to bring her back, except one alleged non-bonafide Panchayat application.
  • The petition for restitution was filed as a "counter-blast" to her maintenance proceedings.
  • She sought enforcement of the Single Judge's order (payment of maintenance and costs). Counsel raised a preliminary objection that the husband should be considered in contempt for non-compliance with the 27 January 1959 order and that the appeal should be stayed until compliance—relying on authorities where courts adjourned matters until ordered payments were made.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Yaqub Masih v. Christina Masih, A.I.R. 1941 All. 93 Authority where the Court directed a case to be adjourned until costs ordered to be paid; used to support the view that a party in default of costs may be prevented from proceeding. Cited by counsel for the wife to argue the appeal should be stayed until payments were made. The Court noted the authority but, in view of Grover J.'s later order directing execution, declined to accede to the preliminary objection that the appeal be stayed.
Keane v. Keane (1873) 3 P. & D. 52 Ecclesiastical Court practice supporting the adjournment of cases until costs are paid. Referred to by counsel for the wife in support of the adjournment/stay argument. The Court acknowledged the practice but did not follow it to stay the appeal, given later procedural developments.
A.A. Garlinge v. I.R. Garlinge, A.I.R. 1922 All. 504 (F.B.) Authority cited alongside Keane on the practice of withholding further hearing from parties who have not complied with costs/alimony orders. Relied upon by the wife's counsel for the proposition that orders for payment can be enforced by refusing further part in litigation; the Court considered but did not accept the submission to stay the appeal.
Mrs. D. William Kallan v. K.W. William Kalian, A.I.R. 1933 Lah. 728 Authority for the proposition that isolated acts of violence or assault may not amount to cruelty under section 10(1)(b) of the Hindu Marriage Act. Cited by the husband's counsel to argue that isolated assaults here do not constitute cruelty. The Court reviewed this line of authority but nonetheless upheld the trial Court's findings on the record, observing modern disapproval of violence against women.
Heather Usser v. Thomas Usser, A.I.R. 1941 Rang. 221 Another authority cited for the proposition that isolated acts of violence do not necessarily constitute cruelty. Referred to by the husband's counsel; the Court noted such authorities but, on the evidence, declined to disturb the trial Court's conclusion that the husband's conduct disentitled him to relief.
Mrs. Jane Julius v. Mr. Aziel Julius, A.I.R. 1932 Oudh. 231 Authority supporting the same proposition about isolated acts of violence and cruelty. Cited by the husband's counsel; the Court took the authorities into account but affirmed the trial Court's factual findings and its conclusion on cruelty/conduct.
Mrs. Avis Katherine Niblett v. Mr. Robert Howard Viblett, A.I.R. 1935 Oudh. 133 Authority relied on for the proposition that an imputation of adultery is materially significant only when made to third parties. Cited by the husband's counsel to minimize the effect of the husband's imputation; the Court nevertheless accepted the trial Court's view that the husband's language suggested doubt about paternity and amounted to an imputation of immorality.
G.C. Foster v. A.B. Foster, A.I.R. 1928 Oudh. 114 Authority cited for the proposition that a husband who has not failed to support the wife may be entitled to restitution relief. Cited by the husband's counsel to argue entitlement to relief if support had been provided; the Court found on the evidence that the husband had neglected to maintain the wife and child, and therefore the authority did not assist the appellant.
Mst. Gurdev Kaur v. Sarwan Singh, (1959) 61 P.L.R. 188 Interpretation of section 9 of the Hindu Marriage Act: conditions for restitution, including that petitioner must not be guilty of matrimonial offences or conduct responsible for the respondent's withdrawal. The Court relied on this judgment to emphasise that a petitioner guilty of matrimonial offences or whose conduct caused the respondent to withdraw is not entitled to restitution. The Court applied this principle and concluded the husband was disentitled to relief.

Court's Reasoning and Analysis

The Court proceeded in two connected strands: first addressing the preliminary objection (contempt/non-compliance) and then examining the merits of the restitution petition.

On the preliminary objection, the wife's counsel urged that non-compliance with the Single Judge's order of 27 January 1959 placed the appellant in contempt and that, following authorities (Yaqub Masih and related practice), the appeal should be adjourned or stayed until the sums were paid. The Court observed those authorities and the general principle that courts may refuse further participation to parties in contempt; however, the Court noted that Grover J. had, in open court on 4 May 1959, directed that the Court below execute the Single Judge's order. In view of that subsequent order passed in the presence of counsel, the Court was, "as at present advised," inclined to refuse the preliminary objection and to proceed to the merits. (The Court did not make a final adjudication of contempt in this judgment; it declined to stay the appeal on that basis.)

On the merits, the Court applied the statutory conditions set out in section 23 of the Hindu Marriage Act, which limits the circumstances in which courts can grant relief (including requirements about advantage from one's own wrong, condonation/accessory issues where relevant, absence of collusion, absence of unnecessary delay, and absence of other legal grounds preventing relief). The Court held that it was competent for the trial Court to take into account all the circumstances it did.

The Court reviewed the evidence in detail and accepted the trial Court's findings that:

  • There was inordinate delay and negligence by the petitioner in bringing the action;
  • The husband had been guilty of desertion and that the wife had been made to leave her marital home;
  • The petition was not bona fide; the husband had not cared to maintain or enquire about his wife and child and had only filed the petition after the wife's maintenance proceedings; and
  • The husband had doubted the paternity of the child, which amounted to an attribution of immorality to the wife.

The Court addressed the husband's factual contentions (no particular instance of beating proved, contradictions in testimony, lack of medical evidence) but found that the trial Court's assessment of oral evidence was amply justified. The Court reiterated the appellate principle that appellate tribunals are slow to disturb primary fact-findings of trial courts unless there is a special feature or a sufficiently strong weight of improbability to displace them. No such special feature was shown here.

The Court also commented on the modern social context: while recognizing precedents that isolated acts of violence might not amount to cruelty, the Court expressed reluctance to dismiss lightly isolated assaults against women and indicated a modern tendency to treat such acts with disapproval. Nonetheless, on the record before it, the Court found the trial Court's conclusions warranted.

Holding and Implications

Holding:

DISMISSED. The appeal is dismissed with costs. (The opinion concludes: "For the reasons given above this appeal fails and is hereby dismissed with costs. Appeal dismissed.")

Immediate consequences for the parties:

  • The dismissal affirms the trial Court's conclusion that the husband is not entitled to a decree for restitution of conjugal rights.
  • The Single Judge's order of 27 January 1959 (award of maintenance and Rs. 120 towards appeal expenses), which was not appealed and was described in the opinion as final and binding, remains in force and was left to execution (Grover J. had directed the Court below to execute that order).

The opinion does not purport to lay down any new principle of law beyond applying existing statutory criteria (section 23 and section 9 of the Hindu Marriage Act) and established appellate principles respecting factual findings; it affirms that a petitioner guilty of matrimonial offences or whose conduct caused the respondent to withdraw is not entitled to restitution.

Appeal dismissed.
Show full summary ...

    Shri Gurcharan Singh v. Shrimati Waryam Kaur .

    Dua, J.:— This appeal is directed against the order of a Subordinate Judge Ist Class, Malerkotla, dismissing the application of Gurcharan Singh appellant for restitution of conjugal rights under section 9 of the Hindu Marriage Act against his wife, Smt. Waryam Kaur.

    2. In June 1954 the parties got married, and it is admitted before me that a son was born out of this wedlock who is now about 2½ years old. It is also admitted that on 16th of July 1957 the lady applied for maintenance allowance against her husband under section 488, Criminal Procedure Code. It appears that an undated notice was sent by the husband through his counsel Shri Khem Chand to Smt. Waryam Kaur asking her to come and live with him. From the post-office seal, however, the trial Court has observed that perhaps it was sent on the 17th of July 1957, which is one day after the institution of the application under section 488, Criminal Procedure Code. The present petition was filed on the 9th of October, 1957. In this petition it is asserted that Smt. Waryam Kaur had without reasonable cause withdrawn from the petitioner's society about three years earlier, but the cause of action finally accrued about nine months before the institution of the petition when she finally refused to come in spite of his requests and efforts to get her back in his house. This petition has been resisted by the lady on grounds inter alia that she was ill-treated by her husband and his relatives and because of this cruelty her father had brought her to his own house with the help of respectable persons; she has further pleaded that the petitioner had falsely accused her of adultery and that no steps had been taken by her husband to bring her to his house, except one application before the Nagar Panchayat Sarod, which, according to her, was not bona fide. The present petition has been alleged to have been filed as a counter blast to the maintenance proceedings initiated by her. On these grounds the lady has claimed that the application for restitution of conjugal rights deserves to be dismissed.

    3. Three issues were framed, the first one dealing with the maintainability of the petition; the second one with the maltreatment of the lady and the accusation of adultery against her; and the third one deals with the relief to be granted. The petition was held to be maintainable after amendment by which the application was made to conform with the rules framed under the Hindu Marriage Act. Under issue No. 2 the Court discussed all the points which arise for consideration and came to the following conclusions:—

    (1) That the petitioner has been guilty of inordinate delay and negligence in bringing the present action for restitution of conjugal rights;

    (2) that the husband has been guilty of desertion and the wife had been made to leave her marital home. This desertion has continued from the time when the lady had been taken away from the husband's house with the help of some members of the Panchayat;

    (3) that the present petition is not bona fide and that the husband had never cared to look after his wife and that he did not care even to enquire about the birth of his son; he only filed the present petition after the lady had taken proceedings for relief under section 488, Criminal Procedure Code; and

    (4) that the husband actually doubted the parentage of the child born to Smt. Waryam Kaur, which in effect amounted to attribution of immorality to the wife.

    4. On all these grounds the learned Subordinate Judge felt that the petitioner husband could not succeed.

    5. An appeal was preferred to this Court by the husband on the 24th of October 1958 and was admitted by a Division Bench on the 7th of November. On the 31st of December 1958 an application was filed in this Court (Civil Miscellaneous No. 60 of 1959 in F.A.O No. 185 of 1958) by Smt. Waryam Kaur under section 24 of the Hindu Marriage Act stating that an order awarding a sum of Rs. 15/- per month by way of maintenance had been passed under section 488, Criminal Procedure Code, in her favour against Gurcharan Singh, but she had not till then been paid a single penny with the result that she was in great financial difficulties; it was further stated that the trial Court under section 24 of the Hindu Marriage Act had also awarded to her a sum of Rs. 45/- as expenses of the proceedings. She claimed in this Court a sum of Rs. 350/- by way of expenses for the proceedings and a sum of Rs. 50/- per month as maintenance pendente lite from the date of the filing of the appeal up to the date of final decision. Notice of this application to the appellant was ordered by Mehar Singh J. on the 13th of January 1959, and on the 27th of January 1959 in the presence of the counsel for both the parties Harbans Singh J. ordered that the amount of maintenance fixed under section 488, Criminal Procedure Code, beginning from the 25th of July 1958 up to the 25th of January 1959 should be paid within three weeks and thereafter, for the month beginning the 25th of January 1959 till the 25th of February 1959 should be paid on or before the 10th of March 1959 and for the next month on the 10th of April 1959 and so on till the decision of the present appeal. The appellant was further directed to pay a sum of Rs. 120/- to the wife towards expenses of the proceedings in the present appeal, on or before the 1st of March 1959. It appears that no appeal was preferred against this order of the learned Single Judge with the result that it must be deemed to have become final and binding on the parties. This order having not been complied with, on the 26th of March 1959 another application was filed on behalf of Smt. Waryam Kaur under section 151, Civil Procedure Code (Civil Miscellaneous No. 760 of 1959 in F.A.O No. 185 of 1958), stating all the facts and praying that the amount ordered to be paid on the 27th of January 1959 should be got paid within a time to be fixed by this Court, failing which this appeal may be dismissed with costs. On this application notice was directed to be issued on the 23rd of April 1959 by Harbans Singh J., but on the 4th of May 1959 Grover J. in the presence of counsel for the parties passed the following order:—

    “Let the Court below execute the order of Harbans Singh J. passed on the 27th of January 1959.”

    6. Mr. Sarin on behalf of Smt. Waryam Kaur raised a preliminary objection before me that in view of the non-compliance with the order of this Court, dated the 27th of January 1959, the appellant should be considered to be in contempt and therefore this appeal should not be heard on the merits but should be stayed till the order is obeyed and complied with by the appellant. He has in this connection drawn my attention to Yaqub Masih v. Christina Masih A.I.R 1941 All. 93, where Allsop J. directed the case before him to stand adjourned till the costs ordered to be paid by the husband were actually paid. In the reported case the husband had charged Page: 130the wife with adultery and the Court observed that if the husband sought relief, it was just that he should enable his wife to defend herself when she had no means to support her own case. The husband alleged that he had absolutely no means and that he could not deposit the money. It was in these circumstances that the learned Judge ordered that the petition should not be allowed to proceed and should be adjourned till the costs were paid. In support of this order reliance was placed on the practice of the Ecclesiastical Court as disclosed in Keane v. Keane (1873) 3 P. and D. 52. The counsel has also referred me to A.A Garlinge v. I.R Garlinge A.I.R 1922 All. 504 (F.B). Sections 24 and 28 of the Hindu Marriage Act have also been referred to in support of the contention that this Court can both pass orders under section 24 and enforce them under section 28 of the Act. The counsel has also stated at the Bar that though execution proceedings are going on as directed by Grover J., the appellant seems to have absconded with the result that the payment orders cannot be satisfied. This assertion is however, not denied or controverted by Mr. Atma Ram who has merely expressed his ignorance.

    7. As against this Mr. Atma Ram has submitted that the present prayer, which was also contained in the application dated the 26th of March 1959, should be deemed to have been refused by Grover J. on the 4th of May 1959, when the Court below was merely directed to execute the order of this Court dated the 27th of January 1959. The counsel has also submitted that there is no question of the appellant being in contempt and therefore there is no justification for an order adjourning this case till the order dated the 27th of January 1959 is complied with.

    8. In England although orders for payment of costs and alimony can no longer be enforced by attachment since the enactment of the Debtors Act, 1869, non-compliance with such orders is still a contempt of Court, and the Court may legitimately refuse to permit the party in contempt to take a further part in the litigation. (See Halsbury's Laws of England, Third Edition, Volume 8, para 41, page 22). I am, however, inclined as at present advised to agree with Mr. Atma Ram that prima facie, in view of the order of Grover J., passed in the presence of the parties on the 4th of May 1959, it may not be proper to accede to the preliminary objection.

    9. Coming to the merits of the case, Mr. Atma Ram has contended that the only objection raised in the written statement of the lady related to cruelty and reasonable apprehension in her mind that it would be harmful or injurious for her to live with the husband and that, therefore, the Court below was not justified in taking into consideration other factors for refusing the husband's prayer. From the written statement filed by the lady, I find that inordinate delay and negligence in filing the present petition as also the false accusation of adultery were in addition pleaded therein. Cruelty and physical beating by the husband and his relations was of course pleaded. But this apart, it is clear that under section 23 of the Hindu Marriage Act, the law lays down the circumstances in which alone the Court can decree the relief claimed. This section, so far as relevant for our purpose, is in the following terms:—

    “23(1) In any proceeding under this Act whether defended or not, if the Court is satisfied that—

    (a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

    (b) where the ground of the petition is the ground specified in Page: 131clause (f) of sub-section (1) of section 10, or in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and

    (c) the petition is not presented or prosecuted in collusion with the respondent, and

    (d) there has not been any unnecessary or improper delay in instituting the proceeding, and

    (e) there is no other legal ground why relief should not be granted then, and in such a case, but not otherwise, the Court shall decree such relief accordingly. * * * *”.

    10. It was therefore within the competence of the Court below to take into consideration, all the circumstances which it did, in passing the final order. The counsel then took me through the evidence led on behalf of the lady and submitted that the findings of the Court below are not justified on the present evidence. He also referred to the evidence led by the husband to show that he had tried to bring the wife back to his own house, but she, for reasons best known to her, did not agree to come. The counsel has submitted that there is no particular instance of beating the lady proved on the present record; it is also emphasized that Smt. Waryam Kaur herself does not say that she ever reported or complained to her father or her brother about any particular instance of beating. In this connection Mr. Sarin has drawn my attention to the evidence of the lady that she was beaten even when her brother went to see her. Mr. Atma Ram, however, submits that on this point her brother's testimony differs from that of the lady, and indeed their versions so says the counsel are contradictory as to what precisely had happened on this occasion. Mr. Atma Ram has also tried to make capital of the fact that no medical evidence with respect to the injuries on the wife's person has been produced on the present record. In this connection reference has been made by the counsel to cases like Mrs. D. William Kallan v. K.W William. Kalian A.I.R 1933 Lah 728, Heather Usser v. Thomas Usser A.I.R 1941 Rang 221, Mrs. Jane Julius v. Mr. Aziel Julius A.I.R 1932 Oudh. 231, as authorities for the proposition that isolated acts of violence or assault do not amount to cruelty within the provisions of section 10(1)(b) of the Hindu Marriage Act. So far as the allegation of the charge of adultery is concerned, the counsel has vehemently submitted that unless the imputation is made to third parties, it would not be of much help to Smt. Waryam Kaur; she has also submitted that if the husband had not failed to support the lady and the child in a decent way, he Was entitled to the relief claimed by him. Mrs. Avis Katherine Niblett v. Mr. Robert Howard Viblett A.I.R 1935 Oudh. 133, has been relied upon for the first submission and G.C Foster v. A.B Foster A.I.R 1928 Oudh. 114, for the second. On facts he has submitted that there was really no undue delay on the part of the petitioner and that as soon as he realised that the lady had finally refused to come back to his house he filed the present petition. It has further been argued that when he gave the notice, he could not be aware of the filing of; the application under section 488, Criminal Procedure Code, by the lady. Mr. Sarin in reply has controverted this argument and has submitted that after the birth of the son it is neither party's case that the wife lived in her marital home. The counsel contends that ever since then the husband has been completely neglecting and refusing to maintain her. He has in Page: 132this connection placed reliance on Mst. Gurdev Kaur v. Sarwan Singh (1959) 61 P.L.R 188. where considering the scope of section 9 of the Hindu Marriage Act, it has been laid down as follows:—

    “Although sub-section (2) of section 9 of the Hindu Marriage Act confines pleas in defence only to those grounds which can betaken under sections 10, 12 and 13 of the Act, sub-section (1) itself lays down certain conditions which must be fulfilled before a decree can be granted. It will have to seen firstly whether the husband or wife, as the case may be, has withdrawn from the society of the other without reasonable cause. The second requirement is that the Court must be satisfied of the truth of the statements made in such a petition. Thirdly, there should be no legal ground why the relief should not be granted.

    The Court would refuse to order restitution, where it has become a practical impossibility for the parties to live together. The Court should not only refuse a decree to a petitioner who has been guilty of a matrimonial offence but also if his conduct was responsible for the respondent withdrawing from his society. Further the conduct falling short of cruelty may also disentitle the petitioner to any relief.”.

    11. Relying on this judgment, the counsel contends, that it is the husband who is guilty of various matrimonial offences and therefore is not entitled to the relief by way of restitution of conjugal lights. Mr. Sarin has also submitted that the judgment of the Court below is fully justified on the evidence led in the case.

    12. After giving my most anxious thought to the evidence on the record and the arguments of the counsel, in my view this appeal cannot succeed. It is fully established on the record that, ever since the lady was taken away by her father, when she was in the family way, the husband has not cared either to send maintenance to her or even to take interest in his wife or even in the child; he did not keep in touch even with the birth of the child. The evidence led on his behalf with respect to the Panchayat does not, in the background of the attending circumstances, show that he was genuinely and in a bona fide way desirous of bringing back his wife to her marital home and of treating her in a manner in which she is entitled, as a wife, to be treated in her house. I have deliberately used the expression “her house” because her husband's house must also be considered in this context to be her house. The language in which Exhibits D.A and D.C are couched, and on which reliance has been placed by the Courts below, for the observation that he had suggestively attributed immorality or infidelity on the part of his wife, by using language, which suggested doubt in his mind about the paternity of the child, in my view, fully justify, the opinion expressed in the impugned judgment. Nothing substantial has been shown by the counsel for the appellant to enable me to hold that the observation is so clearly erroneous as to justify its reversal by this Court on appeal.

    13. The oral evidence, through which I have been taken, also amply justifies the finding of the Court below. In the case of conflict of oral evidence of the parties, unless there is some special feature about the evidence of a particular witness, which has escaped the trial Court's notice, or unless there is a reasonably sufficient balance of improbability to displace the opinion of the trial Judge, the appellate Court is usually slow to interfere with the findings of the Court of first instance on questions of fact. No nicely balanced calculations can ordinarily justify reversal of the decision of the Court on facts. In the present case no such special feature has been shown by the learned counsel. In this connection, it is Page: 133not without significance that the trial Court was invested both with the powers of a criminal Court as well as a civil Court and, as such, it was trying both the present suit and, the proceedings under section 488, Criminal Procedure Code, in which aim it actually passed an order for maintenance.

    14. Before concluding I may observe that whether or not isolated acts of violence amount to cruelty normally depends on the facts and circumstances of each case and the modern tendency of the society is at least to treat with disapproval acts of violence or assault towards women. New rules of social behaviour and conduct must, therefore, be recognised by the Courts in determining what would amount to cruelty in the present set up, and I would be disinclined to dismiss lightly the so-called isolated acts of violence and assault as not amounting to cruelty, if the victims of such assaults resent and take exception to them.

    15. For the reasons given above this appeal fails and is hereby dismissed with costs.

    Appeal dismissed.

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    Shri Gurcharan Singh v. Shrimati Waryam Kaur .
    (Nov 10, 1959)