SAVITRI PANDEY versus PREM CHANDRA PANDEY

Citation: [2002] 1 S.C.R. 50 · Decided: 08-01-2002 · Supreme Court of India · Bench: R.P. SETHI · Disposal: Dismissed

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Judgment (excerpt)

A 
SAVJTRI PANDEY 
• 
v. 
PREM CHANDRA PANDEY 
JANUARY 8, 2002 
B 
[R.P. SETHI AND Y.K. SABHARWAL, JJ.] 
Hindu Marriage Act, 1955: 
C 
S 13-Divorce on the ground of cruelty and desertion-Desertion means 
withdrawing from the matrimonial obligations-Not permitting/facilitating 
the cohabitation between-Continuous .course of conduct to be determined, 
under the facts and circumstances of each case-One spouse abandoning the 
matrimonial home and declining to cohabitate-Amounts to forebearing to 
perform matrimonial obligation-There can be no desertion without previous 
D co-habitation by the parties except on the ground of mental or physical 
incapacity or other peculiar circumstances of the case-Party seeking divorce 
has to prove that he/she is not taking advantage of his/her own wrong or 
disability. 
E. 
F 
G 
H 
Cruelty may be mental or physical-Cruelty postulates treatment of 
one spouse as to cause a reasonable apprehension in his/her mind that it 
would be harmful or injurious to live with other spouse-it has to be 
distinguished from the ordinary wear and tear of family life-Sensitivity of 
the spouse with respect to conduct of other is termed as ordinary wear and 
tear of the family life and not cruelty. 
Right to appeal-Inference of-Right to appeal is a recognised right 
under legal jurisprudence-If one spouse solemnise 2nd marriage during 
pendency of appeal, he/she would do so at his/her own risk-Not permitted 
to flout the course of justice by overt and covert acts. 
Legislation-Jn the context of filing of appeal under the Act-30 days 
period is insufficient and inadequate-Other party may frustrate the appeal 
right of other side-Minimum period of 90 days for filing appeal may be 
prescribed and to declare marriage void if solemnised during the appeal 
period-Suggestion given. 
50 
.... 
Cll ' 
J 
• 
'" . 
SAVITRI PANDEYv. P.C. PANDEY 
51 
Marriage between appellant and respondent was solemnised on 6.5.1987. A 
The appellant-wife started living separately with the respondent husband since 
21st June, 1987 and according to the appellant the marriage was never 
consumated; and the respondent and his family members allegedly made 
demands of more and more dowry; and that since her parents could not fulfil 
such ever increasing demand of dowry, the respondent and his family members 
started torturing her on false pretexts; and that the respondent was having B 
illicit relations with a lady with whom he was stated to have solemnised the 
marriage . 
The appellant filed a petition before the Matrimonial Court under Section 
13 of the Hindu Marriage Act alleging cruelty and desertion against the C 
husband, praying for dissolution of her marriage and to return her ornaments. 
The respondent also filed a petition seeking divorce. However the same was 
withdrawn. The Family Judge allowed the petition, dissolved the marriage on 
the ground of desertion and also granted other reliefs like alimony, return of 
jewels etc. Aggrieved by the order, husband preferred appeal. Not fully satisfied 
with the other reliefs, wife preferred an appeal. High Court disposed of both D 
the appeals setting aside the order of the Family Judge. Hence this appeal. 
It was contended for the appellant as she was proved to have been living 
separately, it was to be presumed that the respondent had deserted her; that 
after the decree of divorce by the Family Judge the appellant had remarried E 
and out of second marriage a child was also stated to have been born and, 
therefore, it would be in the interest of justice and the parties that the marriage 
} 
between them was dissolved . 
• 
Dismissing the appeal, the Court 
F 
HELD: 1. Cruelty for the purpose of the Act means where one spouse 
has so treated the other and manifested such feelings towards her or him as 
to have inflicted bodily injury or to have caused reasonable apprehension of 
bodily injury, suffering or to have injured health. Cruelty, however, has to be 
distinguished from the ordinary wear and tear of family life. It cannot be G 
decided on the basis of the sensitivity of the petitioner and has to be adjudged 
on the basis of the course of conduct which would, in general, be dangerous 
for a spouse to live with the other. In the instant case, the averments made in 
the petition and evidence led in supi)ort thereof clearly shows that the 
allegation, even if held to have been proved, would only show the sensitivity of 
the appellant with respect to the conduct of the respon

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