LexRAVI KUMAR versus JULMIDEVI
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[2010] 2 S.C.R. 545 RAVI KUMAR v. JULMIDEVI (Civil Appeal No. 1868 of 2007) FEBRUARY 09, 2010 [P. SATHASIVAM AND ASOK KUMAR GANGULY, JJ.] Hindu Marriage Act, 1955: A B 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 0 mother. She denied that her mother abused her father but 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] F 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. 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 (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 AIR 1988 SC 121 referred to Para 20 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1868 of 2007. E F Fro
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