The act of non-payment of interim maintenance allowance as ordered by this Court during the pendency of the appeal cannot be in any manner construed as an act of cruelty so as to constitute revival of earlier acts of condoned cruelty

Gindan And Ors vs Barelal

Madhya Pradesh HC

05/12/1975

AIR 1976 MP 83

About/from the judgment:

Now as regards the third contention the learned counsel for the appellants contended that non-payment of maintenance allowance by the respondent as directed by this Court amounts to revival of cruelty by his wilfully neglecting to maintain his wife we are of opinion that it has no force. The act of non-payment of interim maintenance allowance as ordered by this Court during the pendency of the appeal cannot be in any manner construed as an act of cruelty so as to constitute revival of earlier acts of condoned cruelty. Under Section 10(b) of the Hindu Marriage Act the word 'cruelty' has reference to before filing of the petition for judicial separation and not subsequent thereto. That being so the non-payment of interim maintenance allowance as directed by this Court would not fall within the ambit of the term 'cruelty' so as to set aside the decree passed for restitution of conjugal rights. Even under Section 9(1) of the Act this ground advanced on behalf of appellant No. 1 would not meet the requirements of the provisions so as to hold that she had a reasonable excuse to withdraw herself from the society of her husband. The earlier act of cruelty alleged as a ground on behalf of appellant No 1 for withdrawing herself from the society of her husband was that about two years ago the respondent had beaten her resulting in a fracture of her palm as stated in her written-statement. It has come in the evidence that she came to her husband thereafter and stayed with him and as such the act of the wife clearly amounted to condonation of the act of cruelty. That apart even from the evidence adduced by appellant No. 1 it is clear that she completely failed to prove the fact of sustaining of an injury to her palm as alleged by her by adducing cogent evidence in that regard. We find it difficult to believe the solitary statement of appellant No 1 on that score. On the other hand we may further point out that in para 11 of her written-statement she stated that on being beaten by her husband she had sent a message to her father and brothers for help. But she did not examine the person through whom she is alleged to have sent a message. It has come in the evidence of respondent husband that he made three attempts to bring back his wife (appellant No. 1). This fact was stated in pura 3 of his petition and it was not specifically denied by appellant No. 1 in her written statement. She in her deposition admitted that her husband-respondent had come to her twice to take her to his house. This shows that the respondent all through has been keen to take his wife back and live with her but she always refused to oblige him. It has therefore to be construed that appellant No. 1 without any reasonable excuse had withdrawn from the society of her husband which Ultimately compelled him to file the present petition. The charge of cruelty on the part of the respondent as alleged completely fails and the submission in that regard is rejected.

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