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No Desertion without Prior Cohabitation by the Parties & Cruelty must be distinguished from the Ordinary Wear and Tear of Family Life: Best Criminal Lawyer Advice
Savitri Pandey v. Prem Chandra Pandey [(2002)2 SCC 73]
The facts of the case are that the appellant Savitri Pandey approached the matrimonial court praying for dissolution of marriage alleging Cruelty and Desertion as a ground for divorce against her husband namely Prem Chandra Pandey. Further, the appellant prayed for direction to the respondent to return the ornaments he(respondent) received at the time of marriage. Their marriage was solemnized on 6 July,1987 and they started living separately after 21 August, 1987 and it was also alleged that the marriage between the parties was never consummated. The issues of the case were if the defendant had treated the appellant with cruelty and if yes, then what was the impact of that on the appellant?

The allegations made under the petition were denied by the respondent. It is settled rule in law that cohabitation by the parties is an essential of valid marriage and there can be no desertion without prior cohabitation of the parties. In the present case the appellant herself had admitted that there had not been cohabitation after the marriage between the parties. The court observed that the appellant did not allow the respondent to have cohabitation and no evidence was led by the appellant to show that the respondent had forced her to leave their matrimonial home and live separately. So, in the present case the appellant was disentitled to claim dissolution of marriage on the grounds of desertion.

The allegation of Cruelty against the respondent was also denied. The term ‘Cruelty’ is not defined under the Hindu Marriage Act (HMA). But from time-to-time various judgements have been passed interpreting the term cruelty. Cruelty can be both physical and mental. Physical cruelty means inflicting pain on the body of the person whereas mental cruelty means where the conduct of one spouse is such that it causes mental suffering to the other. But in the present case there is no evidence shown by the appellant to prove that any type of injury or cruelty has been suffered by the appellant which is caused by the respondent. But even if the allegations made by the appellant are proved they cannot be termed as cruelty, it would only show the over-sensitiveness of the appellant. The court would term the conduct of the respondent as ordinary wear and tear of family life and not cruelty. There is a difference between the two. The term ‘cruelty’ must be distinguished from the ordinary wear and tear of family life. The conduct of the respondent is to be looked into and examined if it causes the mental suffering to the appellant and how does it affect the appellant. It must be examined if the conduct of the respondent can be termed as cruelty or if it is just the sensitivity of the appellant with respect to such conduct of the respondent.

Conclusion
It was held by the Court that the issue of cruelty cannot be judged on the basis of hypersensitivity/oversensitivity of the appellant. The conduct of the respondent must be examined and looked into. It is clarified that cruelty must be distinguished from ordinary wear and tear of family life. It was also held in the case that the appellant is disentitled to claim divorce on the ground of desertion as there are evidences indicating that appellant herself did not allow her husband to cohabit with her and there can be no desertion without prior cohabitation of the parties also the respondent had never refused the appellant to cohabit with him or live separately from him.
Marriage | Dowry | Cruelty | Domestic Violence | Divorce | Stridhan | Maintenance
Authored By: Adv. Anant Sharma & Anjali Swami