Savitri Pandey v. Prem Chandra Pandey

A wife, who said the marriage was never consummated, won a divorce from the Family Court on the ground of desertion by her husband. The High Court set it aside. The Supreme Court held that desertion needs earlier cohabitation, and that she could not use her own wrong to claim it. It also asked for a longer period to appeal against a divorce decree.

Quick Revision

Read the full judgment: Indian Kanoon (unofficial copy)

Parties

Savitri Pandey — appellant; the wife, who sought divorce on grounds of cruelty and desertion.

Prem Chandra Pandey — respondent; the husband, who denied the allegations and said the wife was taking advantage of her own wrongs.

Procedural History

1. Family Court. The wife petitioned under Section 13 of the Hindu Marriage Act for divorce and for return of her ornaments. The Family Judge dissolved the marriage on the ground of desertion by the husband (Sethi, J.).
2. The Family Court also granted a decree of Rs.12,000/- for the price of the scooter allegedly given at the marriage. It ordered Rs.500/- per month as permanent alimony (Sethi, J.).
3. The Family Court's judgment and decree of divorce is dated 8 July 1996 (Sethi, J.).
4. High Court. Both spouses appealed. The wife was unhappy that her claim to properties was refused. The husband was aggrieved by the divorce (Sethi, J.).
5. The husband's appeal was filed on 19 January 1997. The High Court held that the wife herself was a defaulting party and that neither cruelty nor desertion was proved (Sethi, J.).
6. The High Court also set aside the order under Section 27 of the Act and the permanent alimony (Sethi, J.).
7. Supreme Court. The wife appealed. She said the High Court was wrong to set aside findings of fact, and that living separately raises a presumption of desertion (Sethi, J.).

Facts

1. The marriage was solemnised on 6 May 1987 (Sethi, J.).
2. The wife lived with the husband till 21 June 1987. According to her, the marriage was never consummated. After 21 June 1987 the parties lived separately (Sethi, J.).
3. She alleged that her parents spent more than Rs.80,000/- on the marriage ceremonies. They also gave ornaments, valuables, cash and goods on the husband's demand (Sethi, J.).
4. She alleged that the husband and his family later demanded a colour TV, a refrigerator, more ornaments and Rs.10,000/- in cash. Her father paid Rs.10,000/- in the first week of June 1987 but could not meet the other demands (Sethi, J.).
5. She alleged they began torturing her on false pretexts. She filed a petition under Section 13 for divorce, return of property and permanent alimony (Sethi, J.).
6. The husband also filed a petition for divorce and other reliefs. On 14 May 1996 he applied to withdraw it, and the application was allowed on 19 May 1996 (Sethi, J.).
7. She alleged that the husband had illicit relations with a lady in Gaya, Bihar, with whom he was said to have solemnised a marriage (Sethi, J.).
8. The husband denied the allegations. He said the wife was taking advantage of her own wrongs (Sethi, J.).
9. After the Family Court's decree, the wife married one Sudhakar Pandey on 29 May 1997, during the pendency of the husband's appeal in the High Court. A child is stated to have been born of that marriage (Sethi, J.).

Issues Raised

1. Did the husband treat the wife with cruelty, as framed by the Family Court as its first issue?
2. Was the wife entitled to relief under Section 27 of the Hindu Marriage Act?
3. Was the husband entitled to any relief, and to what relief were the parties entitled (issues 3 and 4 framed by the Family Court)?
4. Was desertion proved, although no issue on it was framed or insisted upon, and could the wife claim it when she said there was no cohabitation?
5. Should the marriage be dissolved because the wife had remarried and had a child, or under Article 142 because the marriage had broken down?

Arguments Contended

For the appellant (wife):

• The High Court was not justified in setting aside the Family Court's findings of fact. She had proved cruelty and desertion (Sethi, J.).
• Since she was proved to be living separately, it should be presumed that the husband had deserted her (Sethi, J.).
• Even without a specific issue on desertion, the parties had led evidence, and there was enough material for the Family Court to hold desertion proved (Sethi, J.).
• Shri Dinesh Kumar Garg, for the appellant, said the wife had remarried Sudhakar Pandey after the decree and had a child. So it would be in the interest of justice that the marriage be dissolved (Sethi, J.).
• He relied on Anita Sabharwal v. Anil Sabharwal [1997 (11) SCC 490], Shashi Garg (Smt.) v. Arun Garg [1997 (7) SCC 565], Ashok Hurra v. Rupa Bipin Zaveri [1997 (4) SCC 226] and Madhuri Mehta v. Meet Verma [1997 (11) SCC 81] (Sethi, J.).

For the respondent (husband):

• The judgment records the husband's case only in the facts: he denied the allegations, and said the wife was taking advantage of her own wrongs (Sethi, J.).
• It does not record separate arguments of his counsel.

Court's Reasoning

The judgment is by Sethi, J. for the Bench of R.P. Sethi and Y.K. Sabharwal, JJ. It has no numbered paragraphs, so steps cite the opinion.

Sethi, J. (for the Bench)

The pleadings and findings below

1. Noted: The wife alleged cruelty and desertion, and asked for a decree of divorce under Section 13 and for return of her ornaments. The Family Judge dissolved the marriage on desertion. The High Court reversed it. (Sethi, J.)
2. Noted: The Family Court framed four issues. Was there cruelty and its effect? Was the petitioner entitled to relief under Section 27? Was the defendant entitled to any relief? What relief were the parties entitled to? (Sethi, J.)
3. Noted: No issue on desertion was insisted upon. On cruelty, the Family Court found no evidence. It still held that desertion was proved and the petitioner was entitled to a decree. (Sethi, J.)
4. Noted: The Division Bench of the High Court found no evidence that the wife was treated with cruelty, and no evidence that she was deserted. (Sethi, J.)

Cruelty

1. Held: Cruelty is a ground for divorce under Section 13(1)(ia) of the Act. The Act does not define it. In matrimonial matters it means conduct that endangers the petitioner's living with the respondent. (Sethi, J.)
2. Noted: Cruelty consists of acts dangerous to life, limb or health. It means one spouse so treating the other as to inflict bodily injury or cause reasonable apprehension of bodily injury, suffering or injury to health. (Sethi, J.)
3. Noted: Cruelty may be physical or mental. Mental cruelty is conduct of a spouse that causes mental suffering or fear to the matrimonial life of the other. (Sethi, J.)
4. Noted: Cruelty therefore needs treatment that causes reasonable apprehension that it would be harmful or injurious to live with the other party. (Sethi, J.)
5. Held: "Cruelty, however, has to be distinguished from the ordinary wear and tear of family life". It cannot be decided by the petitioner's sensitivity. It is judged by the course of conduct that would generally be dangerous for a spouse to live with. (Sethi, J.)
6. Held: Both the trial court and the High Court found that the wife failed to prove cruelty. This Court cannot disturb concurrent findings of fact (findings of the same fact by two courts below) under Article 136. (Sethi, J.)
7. Held: Even if proved, her allegations would show only her sensitivity to the husband's conduct. They amount to no more than ordinary wear and tear of family life. (Sethi, J.)

Desertion

1. Held: No decree of divorce can be granted on desertion without pleading and proof. The Court still examines the point because counsel argued that the parties had led evidence. (Sethi, J.)
2. Held: Desertion for divorce under the Act means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. (Sethi, J.)
3. Held: "Desertion is not the withdrawal from a place but from a state of things". It means withdrawing from matrimonial obligations, that is, not permitting or facilitating cohabitation. (Sethi, J.)
4. Noted: Proof of desertion must be seen against the concept of marriage. In law, marriage legalises the sexual relationship between man and woman for perpetuation of the race, lawful indulgence in passion to prevent licentiousness, and procreation of children. (Sethi, J.)
5. Noted: Desertion is not a single complete act. It is a continuous course of conduct, decided on the facts of each case. (Sethi, J.)
6. Noted: In Bipinchandra Jaisinghbhai Shah v. Prabhavati [AIR 1957 SC 176], this Court held that leaving in a state of temporary passion, such as anger or disgust, with no intent to end cohabitation permanently, is not desertion. (Sethi, J.)
7. Noted: Bipinchandra said the deserting spouse must satisfy two essentials. These are the factum (the fact) of separation and the intention to bring cohabitation permanently to an end (animus deserendi). (Sethi, J.)
8. Noted: For the deserted spouse, two elements are essential. There must be absence of consent, and absence of conduct giving reasonable cause to the spouse leaving to form the intention. The petitioner bears the burden of proving these. (Sethi, J.)
9. Noted: Bipinchandra compared English law and the Bombay Act. The English law requires the conditions to continue for three years before the suit. The Bombay Act requires four years, without saying they must immediately precede the suit. Whether that omission has any practical result was not decided. (Sethi, J.)
10. Noted: Desertion is an inference from the facts of each case. The facts are viewed for the purpose revealed by acts, conduct and expressions of intention, both before and after the separation. (Sethi, J.)
11. Noted: The offence commences when the fact of separation and the animus deserendi co-exist. They need not begin together. Separation may begin without the animus, or both may coincide. (Sethi, J.)
12. Noted: A deserting spouse can take advantage of the locus poenitentiae (room for repentance). If he or she makes a bona fide (genuine) offer to resume the matrimonial home before divorce proceedings begin, desertion ends. (Sethi, J.)
13. Noted: If the deserted spouse unreasonably refuses the offer, that spouse may be in desertion. During the whole period, the deserted spouse must affirm the marriage and be ready and willing to resume married life on reasonable conditions. (Sethi, J.)
14. Noted: The plaintiff must prove desertion, like any matrimonial offence, beyond all reasonable doubt. Corroboration is not an absolute rule of law, but courts insist on it unless its absence is accounted for. (Sethi, J.)
15. Noted: Lachman Utamchand Kirpalani v. Meena alias Mota [AIR 1964 SC 40] followed Bipinchandra. It repeated that desertion is the intentional permanent forsaking of one spouse by the other, with the two essentials on each side. (Sethi, J.)
16. Held: To prove desertion, one spouse need not always have left the other's company. It can be proved while living under the same roof. (Sethi, J.)
17. Held: Desertion cannot be equated with separate living. It may be constructive, inferred from the attending circumstances. It is always a matter of inference. (Sethi, J.)
18. Held: Another aspect disentitles the appellant. Desertion means withdrawal from a marital status. No party can allege desertion unless he or she admits that, after the formal ceremonies, the parties recognised and discharged the common obligations of married life. (Sethi, J.)
19. Held: Those obligations essentially require cohabitation for the purpose of consummating the marriage. Cohabitation is essential to a valid marriage, as marriage exists to further the perpetuation of the race. (Sethi, J.)
20. Held: In other words, there can be no desertion without previous cohabitation. No one can desert who does not actively or wilfully end an existing state of cohabitation. (Sethi, J.)
21. Held: The rule is subject to just exceptions, such as mental or physical incapacity or other peculiar circumstances. But the party seeking divorce for desertion must show that she or he was not taking advantage of his or her own wrong. (Sethi, J.)
22. Held: The wife herself pleaded that there was no cohabitation after the marriage. She gave no reason and did not blame the husband. It is apparent that she did not permit the husband to cohabit for consummating the marriage. (Sethi, J.)
23. Held: Since she never permitted a state of matrimonial position to come into existence, she was disentitled to divorce on desertion. (Sethi, J.)
24. Held: She led no evidence that she was forced to leave, thrown out or made to live separately, or that the husband had animus deserendi. Nothing shows the husband declared an end to the marriage or refused cohabitation. (Sethi, J.)
25. Held: In fact, the appellant is proved to have abandoned the matrimonial home and declined to cohabit with the respondent, thus not performing the matrimonial obligation. (Sethi, J.)
26. Held: In any proceeding under the Act, defended or not, the court declines relief if the petitioner takes advantage of his or her own wrong or disability, for the reliefs in Section 23(1). (Sethi, J.)
27. Held: "No party can be permitted to carve out the ground for destroying the family which is the basic unit of the society". The foundation of the family is a legal and valid marriage. The court should preserve the matrimonial home and be reluctant to dissolve a marriage at one party's asking. (Sethi, J.)

The wife's second marriage and irretrievable breakdown

1. Noted: Counsel said that, since the wife had remarried Sudhakar Pandey after the decree and had a child, it is in the interests of justice to dissolve the marriage. He cited four cases. (Sethi, J.)
2. Noted: The Family Court dissolved the marriage on 8 July 1996. The husband appealed on 19 January 1997. No stay was granted, and the wife remarried on 29 May 1997, during the pendency of the appeal. (Sethi, J.)
3. Held: The right to at least one appeal is recognised in all systems of civilised legal jurisprudence. If she remarried despite the pending appeal, the step was at her own risk and subject to the consequences of the High Court's judgment. (Sethi, J.)
4. Held: No person can be permitted to flout the course of justice by overt or covert acts. (Sethi, J.)
5. Held: The cases cited are distinct. In all of them the marriage was dissolved by mutual consent under Section 13B, on the circumstances of each case and on a compromise. Almost all compensated the other side with a lump sum and permanent maintenance. (Sethi, J.)
6. Noted: In Ms. Jorden Diengdeh v. S.S. Chopra [AIR 1985 SC 935], this Court suggested reform of marriage law and a uniform law for all people. It said irretrievable breakdown and mutual consent should become grounds of divorce in all cases. (Sethi, J.)
7. Noted: Jorden Diengdeh said there is no point in continuing a marriage that has completely broken down. It said the time had come for the legislature to provide a uniform code of marriage and divorce. (Sethi, J.)
8. Held: A marriage cannot be dissolved only on one party's averment that it has broken down. The legislature, despite this Court's observation, has not provided for dissolution on that ground. (Sethi, J.)
9. Noted: There may be cases where a marriage has become dead through contributory acts of commission and omission of the parties, so that no purpose is served by keeping it alive. (Sethi, J.)
10. Held: "The sanctity of marriage cannot be left at the whims of one of the annoying spouses". (Sethi, J.)
11. Noted: In V. Bhagat v. Mrs. D. Bhagat [AIR 1994 SC 710], this Court held that irretrievable breakdown of the marriage is not by itself a ground to dissolve it. (Sethi, J.)
12. Held: The appellant is trying to take advantage of her own wrong. The marriage cannot be held to have become dead, so the Court will not use Article 142 to dissolve it. (Sethi, J.)

Observation on the period of appeal

1. Noted: The 30 days prescribed for an appeal under Section 28(4) is apparently inadequate. It helps unscrupulous litigant spouses to frustrate marriages. (Sethi, J.)
2. Noted: In a vast country, powers under the Act are generally exercised by the District Court and the first appeal is in the High Court. Distance, geography, finances and the time needed for a regular appeal make 30 days insufficient. (Sethi, J.)
3. Noted: Without an appeal, the other party can remarry and attempt to defeat the appeal right, as appears to have been done here. (Sethi, J.)
4. Held: A minimum period of 90 days may be prescribed for appealing any judgment and decree under the Act. Any marriage solemnised in that period should be deemed void. Appropriate legislation is needed. (Sethi, J.)
5. Held: The Court directs the Registry to forward a copy of the judgment to the Ministry of Law and Justice for such action as it may deem fit. (Sethi, J.)
6. Held: There is no merit in the appeals. They are dismissed with costs throughout. (Sethi, J.)

Authorities

• Bipinchandra Jaisinghbhai Shah v. Prabhavati (AIR 1957 SC 176): desertion needs factum of separation and animus deserendi; deserted spouse must not consent or give reasonable cause; proof beyond reasonable doubt. Followed (Sethi, J.).
• Lachman Utamchand Kirpalani v. Meena alias Mota (AIR 1964 SC 40): repeated the law in Bipinchandra. Followed (Sethi, J.).
• Anita Sabharwal v. Anil Sabharwal ([1997] 11 SCC 490), Shashi Garg (Smt.) v. Arun Garg ([1997] 7 SCC 565), Ashok Hurra v. Rupa Bipin Zaveri ([1997] 4 SCC 226) and Madhuri Mehta v. Meet Verma ([1997] 11 SCC 81): relied on by the appellant; distinguished as mutual consent cases under Section 13B (Sethi, J.).
• Ms. Jorden Diengdeh v. S.S. Chopra (AIR 1985 SC 935): suggested irretrievable breakdown and mutual consent as grounds, and a uniform code; the legislature has not acted (Sethi, J.).
• V. Bhagat v. Mrs. D. Bhagat (AIR 1994 SC 710): irretrievable breakdown is not by itself a ground to dissolve a marriage. Followed (Sethi, J.).

Provisions mentioned

• Section 13, Hindu Marriage Act, 1955: divorce petition; Section 13(1)(ia) makes cruelty a ground.
• Section 13B, Hindu Marriage Act, 1955: divorce by mutual consent, used in the cases the appellant cited.
• Section 23(1), Hindu Marriage Act, 1955: the court declines relief to a petitioner taking advantage of his or her own wrong or disability.
• Section 27, Hindu Marriage Act, 1955: disposal of property; the Family Court order under it was set aside.
• Section 28(4), Hindu Marriage Act, 1955: the 30-day period for appeal, called inadequate.
• Article 136, Constitution: concurrent findings of fact are not disturbed under it.
• Article 142, Constitution: refused to be used to dissolve this marriage.

Judgement

1. The appeals are dismissed with costs throughout (Sethi, J.).
2. Cruelty is not proved, and the wife is not entitled to a decree of divorce on the ground of desertion (Sethi, J.).
3. The Court will not dissolve the marriage under Article 142 (Sethi, J.).
4. The Registry must forward a copy of the judgment to the Ministry of Law and Justice, for action on the recommendation of a minimum 90-day appeal period, with any marriage in that period deemed void (Sethi, J.).
5. The judgment records no amount of costs.

Legal Principle / Ratio

Desertion needs the fact of separation and the intention to end cohabitation permanently, and the deserted spouse must not have consented or given reasonable cause. A party who never allowed cohabitation cannot claim desertion. In the Court's words: "there can be no desertion without previous cohabitation by the parties". A petitioner may not take advantage of her own wrong.

Subsequent Treatment

One later Supreme Court judgment refers to this case. It is described only as its own text states.

Shilpa Sailesh v. Varun Sreenivasan, Transfer Petition (Civil) No. 1118 of 2014, Supreme Court of India (Constitution Bench), decided 1 May 2023. Bench: Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath and J.K. Maheshwari, JJ. Khanna, J. wrote the judgment.

• Why it arose. A 2010 order in Neeti Malviya doubted the views in Anjana Kishore and Manish Goel that this Court cannot waive or reduce the six-month period for the second motion under Section 13-B(2) of the Hindu Marriage Act, using its power under Article 142 (para 1).
• What it said about Savitri Pandey. The Bench noted that Savitri Pandey refers to Jorden Diengdeh. That case had suggested reform of the law of marriage and irretrievable breakdown as a ground of divorce (para 39). It noted that Savitri Pandey held there could be cases where a marriage has become dead through contributory acts of commission and omission of the parties, as in V. Bhagat. It also noted the point that the sanctity of marriage cannot be left at the whims of one of the annoying parties (para 39).
• Read down. The Bench held that Savitri Pandey and other decisions have to be read down in the context of this Court's power to do complete justice under Article 142(1). The other decisions are Manish Goel, Neelam Kumar, Darshan Gupta and Hitesh Bhatnagar (para 40).
• Fault and blame. In matrimonial disputes under the Hindu Marriage Act, the power to do complete justice is not fettered by the doctrine of fault and blame that applies to divorce petitions under Section 13(1)(i-a). The power to dissolve a marriage by consent on settlement, and to quash other proceedings, remains (para 40).
• Irretrievable breakdown. The Court held that under Article 142(1) it has the discretion to dissolve a marriage on the ground of irretrievable breakdown, even if the other spouse opposes. It must be satisfied that the marriage has completely failed, that the parties will not cohabit again, and that continuing the formal legal relationship is unjustified. It must also balance the position of the spouse who opposes the dissolution (para 42(iii)).
• No direct writ. A party cannot file a writ petition under Article 32 and seek dissolution of marriage directly from this Court (para 41). The Bench approved Poonam v. Sumit Tanwar on spurning such petitions, but did not approve its observation that it is questionable whether the six-month period under Section 13-B(2) can be waived (para 41).

Critical Analysis

Analysis based on the judgment text.

The Court allows exceptions to the cohabitation rule but does not list them. It says the rule is subject to just exceptions, such as mental or physical incapacity or other peculiar circumstances. The judgment gives no test for what counts as a peculiar circumstance.

The Court treats the wife's plea of non-cohabitation as fatal. It relies on her own pleading that there was no cohabitation, and on her failure to give any reason. The judgment does not discuss what follows if the husband had, in fact, refused to cohabit, although it notes that no evidence of refusal was led.

The Court leaves the irretrievable breakdown gap to the legislature. It notes that Jorden Diengdeh suggested the ground and that the legislature has not thought it proper to provide for it. It also says a dead marriage may exist through contributory acts. Its own recommendation is limited to the period for appeal.

Significance

• The Court restated cruelty as conduct that endangers living together, separated from ordinary wear and tear of family life.
• It restated desertion using Bipinchandra and Lachman Utamchand Kirpalani, and held that previous cohabitation is a precondition.
• It applied Section 23(1) to bar a petitioner who takes advantage of her own wrong.
• It held that a second marriage during a pending appeal is at the party's own risk.
• It recommended a minimum 90-day period to appeal under the Act, with marriages in that period deemed void, and sent the judgment to the Ministry of Law and Justice.

Exam-Important Points

• Facts in one line: the wife got a divorce for desertion from the Family Court although she said the marriage was never consummated. The High Court reversed, and the Supreme Court dismissed her appeals with costs.
• Rule: desertion is the intentional permanent forsaking and abandonment of a spouse without consent and without reasonable cause.
• Elements: for the deserting spouse, the factum of separation and animus deserendi. For the deserted spouse, no consent and no conduct giving reasonable cause.
• Trap: desertion can be proved while living under the same roof. Separate living is not desertion by itself.
• Trap: no desertion without previous cohabitation, and no relief if the petitioner takes advantage of her own wrong (Section 23(1)).
• Trap: irretrievable breakdown is not by itself a ground of divorce (V. Bhagat), and the Court refused Article 142.
• Recommendation: a 90-day minimum period to appeal under Section 28(4), with marriage in that period deemed void. It is a suggestion for legislation, and the Registry must send the judgment to the Ministry of Law and Justice.

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.