G.N. Vaidya, J.@mdashHis Lordship after holding that the appellant was not entitled either to a divorce u/s 13 (I) (iii) or to annulment of marriage u/s 12 (1) (c) of the Hindu Marriage Act, 1955, proceeded to consider whether the respondent had treated the appellant with such cruelty as to cause a reasonable apprehension in the mind of the appellant that it would be harmful or injurious for the appellant to live with the respondent within the meaning of section 10 (1) (b) of the Hindu Marriage Act. His Lordship referred to a large number of documents signed by the respondent which contained admissions by her about the cruel treatment and torture alleged to have been inflicted by her on the appellant.-J I think that both the Courts have failed to apply the correct principles of law in determining the issue of cruelty in this case in the light of the evidence before the Court. The trial Court ignored the provisions of section 31 of the Indian Evidence Act and assumed that whatever was written down by the respondent in the form of admissions was conclusive proof of the words and happenings mentioned therein and these amounted to cruelty. The trial Court was grossly in error further in ignoring the provisions of sections 10 and 23 of the Hindu Marriage Act and in dealing with the whole matter as if the word ''cruelty'' in matrimonial law had the same meaning as it had in an ordinary dictionary. disregarding completely the principles laid down in sections 10 and 23. The trial Court did not even apply its mind to the question as to whether the apprehensions of the petitioner were reasonable, and whether he had condoned the alleged acts by cohabiting with the respondent from the time of the marriage till February 27. 1901. The trial Court proceeded with the matter as if section 23 of the Hindu Marriage Act did not exist and completely ignored the conduct of the petitioner towards the respondent, though it was the duty of the Court to consider the provisions of section 23 [see Laxmibai v. Laxmichand 1968 Mh. L J 338= (1967) 70 Bom. L R 80]. The principles laid down by the Act for the guidance of the Court when dealing with the matrimonial offence of cruelty were not at all borne in mind by the trial Court. What is unfortunate is that even as late as 1965, the learned Judge thought that a Hindu wife could not express herself freely about her domestic affairs notwithstanding that we are living in a society in which equality of status and opportunity is given to a woman and she enjoys the liberty of expression, faith, belief and worship. If the husband can express his views about the wife and her relations how can a wife be prevented from expressing her views? But the learned trial Judge appears to have assumed that in spite of the parity of status accorded to a woman under the Hindu Marriage Act. the wife had no right to express any views about any of these matters if the husband did not like that.
2. Similarly, the appellate Court has also approached the case, though not as erroneously as the trial Court, yet not in accordance with the settled principles of law. The Assistant Judge has wrongly excluded all the documents assuming that they were executed under force forgetting that he was not dealing with a confession in a criminal trial but with admissions in a civil trial. He wrongly assumed that merely because the abuses and insults were not commonly regarded as abuses, they could never amount to acts of cruelty. He further wrongly assumed and blamed unnecessarily the husband and his parents thinking that they were an orthodox lot from Poona and because of this orthodoxy, the husband could not put up with the wife who was brought up under less orthodox surroundings in Delhi. The Assistant Judge did not consider carefully all the requirements of law u/s 10 and section 23 and the principles laid down regarding the concept of legal cruelty in matrimonial law.
3. Hence I allowed Mr. Bhasme to take me through the entire oral and documentary evidence which according to the petitioner, established the alleged cruelty on the part of the respondent. Mr. Bhasme strenuously urged that the writing in which the respondent had admitted her abuses and. insults to the husband showed the modus operandi used by the respondent for torturing the petitioner. According to him, the modus operandi consisted of abuses, insults, admissions, apologies, promises and again abuses and so on repeated from time to time. He urged that the respondent was persisting in her mental torture of the petitioner in even resisting his petition for judicial separation at this stage because she takes pleasure in the mental torture thereby caused to the petitioner.
4. To repel those arguments of Mr. Bhasme. Mr. Paranjpe, the learned counsel for the wife, stated that his client had still hopes of reconciliation with the husband and he would, therefore, restrain himself from saying all that he wanted to say or could say on the evidence, but the leant that he had to say, not on the instructions of his client but purely as a matter of argument on the evidence, was that the petitioner had dishonestly adopted the plea of cruelty because his real intention in filing the petition was to get a divorce on the basis that the respondent was of unsound mind and suffering from schizophrenia. He contended that although the Assistant Judge might not have adopted the correct ratio decidendi in assessing the conduct of the parties and the consequences, he had arrived at the correct conclusion and rightly held that the petitioner was not entitled to judicial separation.
5. In view of these contentions, it is first necessary to state, as far as it is possible, the meaning of the word ''cruelty'' in matrimonial law as a ground for judicial separation. Cruelty may be of infinite variety, It can be subtle or brutal. It may be physical or mental. It may be by words, gestures or by mere silence, violence or non-violence. That is the reason why Courts have never tried to give an exclusive definition of cruelty as understood in matrimonial law.
6. Before the Hindu Marriage Act, 1955, the Indian Courts generally applied principles followed by the English Courts in deciding this question in so far as they were applicable to conditions in Indian Society. In Moonshee Buz-loor Ruheem v. Shumsoonissa Begum and Jodonatk Bose v. Shumsoonissa Begum (1867) 11 Moore''s 1 A 551, the parties were Muslims, but the Privy Council adopted the exposition of the law regarding cruelty as prevailing in England more than a hundred years ago and observed (p. 611):
7. The Mahomedan law, on a question of what is legal cruelty between Man and Wife, would probably not differ materially from our own, of which one of the most recent expositions is the following:-There must be actual violence of such a character as to endanger personal health or safety; or there must be a reasonable apprehension of it.'' ''The Court'', as Lord Stowell said, in Evans v. Evans (1790) 1 Hagg. Con. Rep. 35, 37, et scq, ''has never been driven off this ground.''
In Tamunabai and Narayan Jaganath Bhide v. Narayan Moreskvar Pendse (1876) I L R 1 Bom. 164, in which the husband and wife were Kokanastha Brahmins. Mr. Justice Melville and Mr. Justice West, following the above decision, adopted the principles followed by English Courts. In Meherally v. Sakerkhanoobai (1905) 7 Bom. L R 602, Mr. Justice Batchelor followed the same principles in a case in which the parties belonged to the Khoja community. The march of the Indian Courts with the English Courts in expounding the concept of cruelty is illustrated in
The word ''cruelty'' has not been defined in the Act, but there is no doubt that it means legal cruelty as understood in English law, namely, injury, causing danger to life or limb or health, or reasonable apprehension of such injury." He approved of the following passage in Evans v. Evans (1790) 1 Hagg. Con. Rep. 35, 37, et. seq (p. 38):
Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty; they are high moral offences in the marriage state undoubtedly, not innocent surely in any state of life, but still they are not that cruelly against which the law can relieve.
7 . It is, therefore, necessary to consider the question of cruelty in the light of the exposition of that law for the time being in force in England which is concisely and precisely stated in Tolstoy''s Divorce and Matrimonial Causes, Sixth Kdn.. 1967, at p. 61 as follows:
Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental or has to give rise to a reasonable apprehension of such a danger." The learned author further goes on to say:
In 1963 the meaning of cruelty was interpreted by the House of Lords in Gollins v. Gollins (1964) A C 644 and Williams v. Williams (1964) A C 698 and previous decisions must be read in the light of these two cases. Intention is not a necessary ingredient of cruelty and neither a malevolent intention, nor a desire to injure, nor knowledge that the act done is wrong and hurtful, need be present for conduct to amount to cruelty; the question in all cases is whether the respondent''s conduct was cruel father than whether the respondent was himself or herself a cruel person...
There are no limits to the kind of conduct which might constitute cruelty, but, whatever the conduct, it must be grave and weighty and which can properly be described as cruelty in the ordinary sense of the term. Spouses take each other for better or worse, and it is not enough to show that they rind life together impossible, even if there results injury to health..
Since Gollins v. Gollins (1964) A C 644 and Williams v. Williams (1964) A C 698 there are two tests which must be satisfied for cruelty to be established; first, is the conduct complained of sufficiently grave and weighty to warrant the description of being cruel ? and, secondly, has the conduct caused injury to health or reasonable apprehension of such injury?
Having regard to these principles and the entire evidence in the case, in my judgment, I find that none of the acts complained of against the respondent can be considered to be so sufficiently grave and weighty as to be described as cruel according to the matrimonial law. The acts complained of are expressions sometimes of rebuke, sometimes of remorse very often arising out of occasional ill tempers which are the ordinary wear and tear of married life. Even the application made by the respondent to the Ministry of Agriculture which is, perhaps, the gravest of the acts attributed to the respondent, cannot be considered as a cruel act. It has not injured the status or health of the petitioner. It was in fact an act of an innocent wife who was placed in a pitiable position by her husband who charged her with insanity while she was pregnant and had to take the shelter of her parents.
8. Apart from this, what the Courts have to bear in mind when deciding these questions, is, in my judgment, clearly indicated in sections 10 and 23 of the Hindu Marriage Act, the relevant provisions of which are as follows:
10. (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district Court praying for a decree for judicial separation on the ground that the other party-
(a) ....
(b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; or.
23. (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that-
(a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b) where the ground of the petition is the ground specified in clause (f) of subsection (1) of section 10, or in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty, and
(c) the petition is not presented or prosecuted in collusion with the respondent, and
(d) there has not been any unnecessary or improper delay in instituting the proceeding, and
(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.
(2) Before proceeding to grant any relief under this Act, it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties.
The Parliament in enacting these provisions has clearly indicated what are the tests to be followed by the Courts in India. First, the acts, words, omissions or events alleged to amount to cruelty directed against the petitioner must be proved beyond reasonable doubt. This must be in accordance with the law of Evidence. Second, it must be established that there is an apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the other party. No doubt, every petitioner will say that he apprehends such harm or injury. But he must be able to establish that what he apprehends is real harm or injury. Even that is not enough; and the third requirement of law is that the Court must be satisfied that this apprehension is reasonable having regard to all the facts and circumstances of the case including the physical, mental and social condition of the parties concerned; their status, perhaps social, economic and physical: the nature of the differences between the spouses; the welfare of the children, if any, of the marriage; the conduct of the parties towards each other during coverture and thereafter, including the conduct of the parties in the course of the prosecution of the matrimonial petition, if necessary, depending on the nature of each case; and possibly what the Court ought to regard as the prevailing notions regarding the conduct and relation between husband and wife. Moreover, the Parliament has considered that even this is not enough to entitle the petitioner to relief, if the conduct of the petitioner himself disentitles him to any relief, because if the Court finds that the petitioner is taking advantage of his own wrong, it is the duty of the Court not to grant the relief. Hence the fourth requirement laid down by the law is that the petitioner must satisfy the Court that he is not in any way taking advantage of his or her own wrong or disability for the purpose of the relief. The fifth requirement, so far as the present case is concerned, which is mentioned in section 23 is that where the ground of the petition is cruelty, as in the present case, petitioner has not in any manner condoned the cruelty.
9. In my judgment, the petitioner in this ease must fail even assuming that all that he has established amounts to cruel treatment by the wife to him, because the present petition was filed against the respondent as a person of unsound mind. Attempt was made to appoint a guardian for this alleged (sic)x. The wife established that she was not a lunatic and the petition proceeded on the footing that she was not lunatic. In spite of this, the husband has persisted in contending in all the three Courts that she was suffering from schizophrenia and that alone is the explanation for all that she said and did during their coverture. I have already held above that this charge against the respondent is entirely baseless. It was utterly wrong on the part of the husband and his parents and his relations in Poona to subject the respondent to the inhuman indignity of being examined as an insane person while she was taking meals in the house.
10. Moreover; a perusal of the pleadings and the evidence led in the case shows that the petitioner was more particular about getting a divorce than to prove cruelty and get a judicial separation; and the alleged instances of legal cruelty were trotted out ad nauseam to establish that she was schizophrenic, in which attempt the husband has miserably failed in all the three Courts now.
11. Besides, it is common ground that the husband and wife cohabited till February 27, 1961 at Arbhavi. Poona and Delhi and the last daughter born, Prabha, was delivered in August 1961. In my judgment, this clearly establishes that the husband himself had condoned all the alleged so called acts of cruelty by his wife. It is a well settled principle in matrimonial law in general that condonation involves forgiveness confirmed or made effective by reinstatement, as stated by Lord Chancellor Simon in Henderson v. Henderson (1944) A. C. 49. Normally, sexual intercourse is evidence of both forgiveness and reconciliation and raises a presumption of condonation in the case of either spouse. It may be rebutted by evidence sufficient to negative the intent to forgive.
12. The moral virtues of the wife in this case are not challenged by the husband. It must be said to his credit that in spite of his obsession that his wife was suffering from schizophrenia, he has not made any remark against the chastity or against the moral character of the wife. In these circumstances, as the husband and wife parted when the wife was pregnant, it, must be held that till the date of parting whatever happened between the husband and wife was condoned by the husband. The wife was reinstated to her position. The husband is not entitled to any relief on the ground of any of the acts committed by her during coverture till February 27, 1961. For reasons which will be stated below, I hold that the husband has failed to prove that the wife did any thing which amounted to treating the petitioner with cruelty after that date. On this ground alone, the petition is liable to be dismissed.
13. Moreover, I have carefully considered the oral and documentary evidence regarding the alleged acts of cruelty. They are not specifically and clearly mentioned as such in the petition filed by the petitioner. The parties have led oral or documentary evidence regarding the alleged acts (although mainly in the context of schizophrenia). The lower Courts have discussed them. The trial Court Was not prepared to believe the petitioner''s uncorroborated testimony regarding them and relied on the so called admissions in the respondent''s Writing''s. The Assistant Judge in appeal while excluding many of these writings as secured by force referred to the others and found that none of them showed any acts of cruelty; As already stated by me, the trial Court appears to have erroneously assumed that admissions in the writings were conclusive proof of the matters in issue and the Assistant Judge wrongly excluded many of them applying the law of confession. I, therefore, went through all the relevant writings and letters in which the respondent admitted the words which she used, apologized for them and promised to come up to the standard required by her husband.
14. In my judgment, it is wrong to rely on these admissions as conclusive proof of acts of cruelty because the words of abuse or insult or provocative re-marks or retorts contained therein are all stated without reference to the context. They could not have been addressed in vacuum. Every abuse, insult, remark or retort must have been1 probably in exchange for remarks and rebukes from the husband. Mr. Bhasme argued that such is not the case of the respondent. Her case is that she was forced to give all these writings and Mr. Bhasme admits that no such case of force was made either in the written statement or at any time before she gave evidence. That is true. But a Court is bound to consider the probabilities and infer, as I have done, that they must have been in the context of the abuses, insults, rebukes and remarks made by the husband, and without evidence on the record with respect to the conduct of the husband in response to which the wife behaved in a particular way on each occasion, it is difficult, if not impossible, to draw inferences against the wife.
15. I have read all that the wife wrote from 1056 to February 27, 1061 on which day, she was practically abandoned as schizophrenic in a callous manner by her husband in Poona. I find that most of the words and sentences and acts were sallies of ill temper or retorts exchanged for the rigid expectations and rebukes by the husband. They were the result of the delicate and sometimes turbulent interplay of the personalities of the husband and wife. The husband with a brilliant academic career, a Class I Government of India Officer and Assistant Professor in the All India Institute of Agriculture at Poona, expected his wife to yield to the norms set up by him in his household. The wife, also ''a Science graduate at the relevant time (she passed M. A. examination of Delhi University in 1964 during the pendency of the litigation) tried her best to come up to the meticulous standards set up by the husband. But the husband was not satisfied. He pulled on somehow in this unsatisfactory way from 1956 to February 27, 1961. He had two daughters from her and was expecting a third and then, unfortunately, in his relentless search for the causa, causans of the failures and infirmities of his wife he hit upon schizophrenia. He thought that he had discovered his wife completely. Perhaps in consultation with his father (a lawyer) and brother (a medical practitioner) he convinced himself that schizophrenia is incurable unsoundness of mind. He felt that the only way of getting rid of .MB marital troubles was to file a petition for nullity or divorce. ,AH this was thoroughly wrong on the part of the husband. But somehow he nursed and cultivated an invincible repugnancy to the company of his wife which he cannot shed even after seven years of litigation in the Courts mainly because he perhaps still thinks that his wife is suffering from schizophrenia. He sees every act and omission of his wife in this frame of mind and apprehends that he cannot live with her. He may not be dishonest in his belief, as suggested by Mr, Paranjpe, learned counsel for the wife. He is certainly unwise and unreasonable in sticking to that belief despite the just and proper decisions of the two Courts below holding that his wife is not schizophrenic.
16. It is in this background of the husband''s conduct and attitude that all the allegations made against the wife by him must be considered. Apart from the fact that all the facts and words prior to February 27, 1961 were condoned by him, there is nothing in them which can be considered as cruel. They do amount to reactions and expressions, occasional abuses and insults about what she felt about the household, her husband and his family. For instance, when the husband wrote that he would prefer to stay with snakes without teeth and scorpions without poison rather than stay with a wife like her, she replied that she would like her teeth to be extracted by him, so that she could live with him like snakes. What is cruel about this? The husband is a Deahastha Brahmin. The wife is a Kokonastha Brahmin. The wife wrote that if he did not like a Kokonastha Brahmin girl, he should have thought about it before marriage. This must have been in the context of some remark made by the Deshastha Brahmin husband against his Kokanastha Brahmin wife criticising the Kokonastha community. Such tactless remarks and retorts can never be considered as amounting to cruelty. Sometimes the wife said objectionable things for which she repented. As I have already referred to the important allegations while summarising the findings of the civil Court above, I do not wish to repeat and discuss them in detail. Although I am not prepared to agree with the Assistant Judge and say that she used no words of abuse and insults, I cannot agree with the trial Court and hold that they amount to cruelty as understood in matrimonial law. The tongue can undoubtedly pierce deeper than the sword. Injuries inflicted by the tongue may be deeper and may last longer. But what happened between the husband and wife in the present case cannot be considered as so grave and serious as to result in such injuries. Ill temper, petulance of manners, rudeness of language, a want of civil accommodation, occasional sallies of wit and passion, frequent nagging were shared commonly by both husband and wife. Hence the husband cannot complain that the wife was cruel to him. Both must suffer it in silence or overcome it by prudent conciliation.
17. Mr. Bhasme argued that in any event, the wife''s conduct after February 27, 1961 firstly, in not caring to undergo the treatment in the Mental Hospital at Yeravada, secondly, in not believing and leaving her husband unceremoniously on March 19, 1961, at Delhi, thirdly, in applying to the Ministry of Agriculture making allegations against him and his family, fourthly, in suppressing the certificate given to her by Dr. Roshan Master-, fifthly, in persisting in this litigation, not to agree to judicial separation, although she herself stated in her application to the Ministry of Agriculture that she did not like to live with him and he and his family members were wicked, and lastly, in not allowing her children to meet their father for some months before the petition was filed consisted of intolerable acts of cruelty on the part of the wife. This argument ignores the conduct of the husband-
(1) in abandoning the wife and children at Poona to the tender mercies of her parents and brother while she was pregnant baselessly assuming that the wife was a schizophrenic,
(2) in not providing for any expenses to the wife and children after they returned to Delfai in spite of notices, and
(3) in not caring to look them, up even after the delivery of the third child.
In my judgment, the wife was fully justified, in these circumstances,, to make a representation to the Ministry of Agriculture and in not supplying the certificate of sound mind given to her by Dr. Roshan Master. The husband and his family suspected her sanity. She naturally described them an wicked. She lost faith for the time being in her husband''s good faith. She did not intend to jeopardize his job. She wanted to preserve herself and her children. There is nothing unjustifiable even in her conduct and attitude in the course of this litigation. With all his faults, she loves and respects her husband, the father of her three daughters. She wants to live with him and make him happy if a chance is given to her. Her conduct and attitude have been rightly praised by the two Courts below. She has rightly insisted that her husband should not try to run away from his matrimonial obligations like a blind man groping on an unfamiliar road on the basis of an erring belief in schizophrenia. She is doing her best to win back her husband for herself and the father for the children.
18. Whether the alleged acts of cruelty are viewed singly or cumulatively, they are all humdrum, ordinary results of the shortcomings of both the husband and wife. The great Indian poet Kalidas gave a universal advice to young housewives through Shakuntala when he said "Do not go against the husband''s wishes even if you are upset by anger." . But how many housewives have been able to follow this wholesome advice? Marriage, which is otherwise very virtuous, as in the present case, cannot be broken up merely because the wife has common foibles shared by most women. No incident alleged by the husband viewed in isolation or in the background of all other incidents cumulatively can be considered so grave and weighty as to justify a finding of cruelty as required by matrimonial law.
19. A perusal of the provisions of the Hindu Marriage Act, 1955 shows that it justifies breaking up of the matrimonial tie only when there are grave and weighty reasons which make it wrong to continue the matrimonial home. Mutual irritability, mutual incompatibility and even mutual consent are not considered sufficient under the Act to break up the matrimonial home by a decree of the Court. Marriage is still assumed to be a basic, vital and fundamental institution not only for the physical, mental, spiritual and social comforts of the spouses but for the maintenance, protection and education of the progeny. The Court cannot countenance ill conceived notions of an intemperate husband to shatter the legitimate hope of a virtuous wife for re-union. It is true that the efforts made in the two Courts below and in this Court, as well as outside, to reconcile the husband and wife, who have not lived together since February 27, 1961, have completely failed on account of the unbending temper of the husband. But I am convinced that he has not done what a right-minded, reasonable, fair, practical, highly educated and wise husband ought to do.
20. Having regard-to all these aspects of the matter and all the facts and circumstances of the case, I must hold that there is no substance in any of the grounds urged by the appellant in his petition and the petition must be dismissed with costs throughout. The law does not and cannot allow even by a decree of judicial separation breaking up of a marriage, which has resulted in the birth of three innocent children, in the manner wanted by the husband in the present case. His apprehension that he cannot live safely with his wife is, in my judgment, most unreasonable.
21. In the result, the second appeal is dismissed with costs throughout and for the reasons stated above, the decree passed by the Assistant Judge is confirmed. The respondent is given liberty to withdraw the amount deposited by the appellant in this Court.
