Mukul Gopal Mukherji, J.@mdashThis is an appeal filed by the husband who was the petitioner in the court below seeking devorce on the ground of cruelty against the wife respondent. It was the specific allegation made in the plaint as well as in the evidence of the plaintiff husband that the wife respondent on a particular day i.e. on 1st August 1982 assaulted him with a stick. It was specifically alleged that the wife is a woman of violent, ungovernable temper and she frequently nagged, abused and humiliated the husband. It was further alleged that she made excessive sexual demand upon the husband and that the husband had to face frequent outrage on her part which seriously aftected his health. It was also the specific case of the husband appellant in the court below that he took medical help on this count. The husband went so far as to allege that on 5.11.82 the wife did not allow a food which was really meant for him to be taken by his second elder sister on the plea that some mosquito or fly sat on the prepared food but the husband petitioner had the apprehension that some poison must have been put in the cup of tea which was specially prepared for him. The husband further alleged that on 25.12.82 his wife got him beaten by his second elder brother Sukumar Pal on entering into a conspiracy with him so that the husband would be compelled to leave the matrimonial home. The case of the husband in the court below was that on 25.12.82 at about 8 a.m. the respondent abused him in most filthy language and on his asking her the cause, she got him beaten by his second elder brother Sukumar Pal and his wife sila Pal with fists and blows. The wife respondent resisted the prayer for divorce contending inter alia, that there was normal conjugal life for sometime immediately after the marriage. She denied to have ever annoyed him in any manner whatsoever. On the other hand, she looked after her old bed-ridden ailing father-in-law who was left behind by her husband. As regards the allegation of assault resorted to by her husband, whe denied it to be absolutely untrue and as regards Sukumar Pal and his wife Sila Pal beating husband as alleged, she described it as a false and concocted story. On the other hand she alleged that the husband behaved violently with her and also abused and humiliated her and her brothers when they visited their house. She however denied having any specific knowledge about any severe nervous break down of the husband on or about 14th October, 1982 since the husband never disclosed about this to her. As regards the attempt to poison the cup of tea, her specific case was that she did not allow the tea to be taken by her sister-in-law because some mosquoto or fly sat on the prepared drink. However, there was no poison put in the cup of tea alleged by the husband. There were various allegations made by the couple against each other which we have taken into loan creation at the proper context.
2. It has come out from the testimony of P.W. 4 Dr. Probodh Kumar Dhar that the husband petitioner. Sankar Pal. was under his treatment from 6th October. 1982 till 7.2.83. He treated the husband petitioner for his mental depression. He came with some injuries in the bridge of his nose and lower lip. It seemed to the doctor that he suffered mental shock and on his query he stated that his wife had tortured him. On 25.12.82 he also stated that he was man-handled by his brother Sukumar Pal in conspiracy with his wife. This doctor is a general physician. In cross-examination he stated that on 6.10.82 Sankar Pal was abnormal in his behaviour and that is why he wrote in the prescription that he was suffering from mental derangement. He advised him that since he could not come round after taking the necessary medicine, he should contact Dr. Anadi Ghoshal, a specialist in psychiatric medicine. The doctor was not specific as to how many days he attended the patient Sankar Pal but he described it as "5/6/7 times". He admitted that he wrote out in the prescription that he was man-handled by his brother Sukumar Pal. Sankar Pal also gave out to him that he suffered mental shock due to "rough and bad behaviour of his wife".
3. The trial court dismissed the matrimonial suit holding inter alia, that the case of cruelty against the wife has not been really proved.
4. Having heard at length the learned advocates of the respective parties and having failed in our attempt to effect any reconciliation in between the parties and having considered the fact that the wife respondent was still ready and willing to joint the matrimonial home if the husband really accepted her and came to live with her in the matrimonial home, that is the family home left by the husband where they last resided together, we thought it necessary that we should take the help of a psychiatrist. Having considered also the apprehension expressed by the husband appellant that when he went back to the matrimonial home he would be poisoned to death since he had no confidence on his wife altogether, we were persuaded to a tentative apprehension that the husband petitioner is suffering from certain mental inhibition regarding the wife respondent. Even though we marked a callous indifferent attitude on the part of the wife respondent towards her husband, still she candidly expressed before us her reluctance to make any counter claim against the husband so as to seek any judicial separation or divorce against him.
5. Under Order 32A Rule 5 of the CPC we thought it our duty to enquire so far as we reasonably could go into the facts alleged by the plaintiff appellant and the defendant respondent. In the fitness of things we directed both the appellant petitioner and the respondent opposite party to attend the Chamber of Dr. Amar Nath Mullick, a consultant Psychiatrist so that he might advice both the parties for a reconciliation in the shape of a family counsellor after taking into account their physical and mental health and as well as the state of mind. We directed the consultant psychiatrist. Dr. Amar Nath Mullick to interview both the parties jointly as well as separately and submit his report to this Court. We quote hereinbelow the report as submitted by Dr. Amar Nath Mullick after the said psychiatrist interviewed both the parties, examined both of them and made a psychological assessment and gave them necessary counselling.
Sri Sankar Pal, a Government employee with no symptoms of serve form of mental illnesses (such as delusion hallucination, mood variations) at present refused to stay with his wife (living separately for 11 years) and seeking divorce on the ground of cruel behaviour of his wife Smt. Sabita Pal. During counselling Sri Pal realised the consequence of the matter but expressed his view of unwillingness in the normal conjugal life with Sabita Pal.
Smt. Sabita Pal was interviewed on 13.1.93. She has expressed her willingness to conjugal life and denied any form of cruelty towards husband nor she complained any form of misconduct and misbehaviour of her husband.
It appears that Sankar Pal seems to have some personality disorder (suspicious of and overtly sensitive to perceive injuries, tricks by wife, aloofness and emotional coldness to marital relation) which usually does not response to treatment. However psychotherapy may be beneficial otherwise both husband and wife does not bear any severe form of mental illness.
None of the parties gave any objection to the report submitted by Dr. Amarnath Mullick.
6. Mr. Bijitendra Mohan Mitra, Advocate appearing for husband appellant draw our attention to paragraphs 7,10,15,17 and 21 of the plaint and paragraphs 10,11,13,17 and 20 of the written statement and asked us to draw an inference from the testimony of P.Ws. 1, 2 and 4 that in between 6th of October, 1982 and 25th December 1982 acts of cruelty presumably were perpetrated by the respondent on the appellant so as to persuade the latter to leave his matrimonial home and chooses sojourner''s life with temporary shelter at his elder brother''s residence avoiding the company of his wife and keeping himself away from his ancestral property. Mr. Mitra contended further that the genuine apprehension that was created in the mind of the appellant was good enough to take the case within the pale of cruelty where there could indeed be no barometer to gauge the extent of all the subjective reactions of the husband and we can ill afford to be close-tied with ignorance about the actual realities that happened in between the couple. Mr. Mitra contended further that cruelty is not a static apprehension. Drawing the distinction between English Law and Indian law on the point, Mr. Mitra contended citing the reference of two Punjab High Court decisions in P.L. Sayal Vs. Smt. Sarla Rani, and Smt. Kaushalya Vs. Wisakhi Ram Mohan Lal, that the crucial point to determine us whether there was reasonable apprehension in the mind of the husband emanating from an act purportedly resorted to by the wife which amounted to cruelty. P.L. Sayal Vs. Smt. Sarla Rani, was a case where the wife administered "love potion" to husband on the belief that it would conduce to happy married life on account of which the husband suffered In health and the wife repented and there was a reasonable apprehension of the husband that such things might be repeated. It was held in that case that the wife''s acts amounted to a legal cruelty and subsequent cohabitation did not amount to any condonation. Even a single act of gross cruelty may be enough to constitute legal cruelty, if it is such as to lead to a reasonable apprehension of further acts of cruelty towards the aggrieved party but then the question which automatically arises in the facts and circumstances of the present case is whether there was any reality in this sphere based on the instinct of self-preservation. In the facts and circumstances of the present case it has not been proved at all that the husband has suffered a great deal from the hands of the wife and we cannot infer that it would be futile to expect the husband and the wife to live a normal married life again and that it would be a plain denial of justice to keep them within the bonds of marriage. Irretrievable breakdown of marriage however, has not as yet formed a legal ground of divorce. In Smt. Kaushalya Vs. Wisakhi Ram Mohan Lal, it was held that women in our society normally submit themselves to their fate and bear ill-treatment at the hands of their husbands, and unless a climax is reached, they usually do not take the desparate step of going to a police station to lodge a report. It was held in this case that there is a public policy clearly discernible in the recent legislative measures whereby attempts have been made to raise the social status of women in India. New rules of social behaviour and conduct in respect of the status of women in the Indian Society must be recognised and kept in the forefront by the Courts while determining what would really amount to cruelty under the Hindu Marriage Act. That was obviously a case of a husband resorting to cruelty which ultimately goaded the wife to approach the police station to lodge a report against him. This decision is clearly distinguishable from the facts of the present case where we find that an information was lodged by the husband at the police station narrating about the assaults made by his own second elder brother Sukumar Pal where he signally failed to mention the name of his wife. Even the report to the doctor did not implicate his wife in perpetrating assaults on him. If there was such a vital omission on the part of the husband appellant to name the wife in his narration of events to the police station or to the doctor who attended him, we can reasonably infer that the implication of the wife is clearly an alter thought. Assuming for the sake of argument that because of a mis-behaviour towards his wife, his second elder brother Sukumar Pal beat the husband appellant which actuated him to go to a doctor or even lodge a report to a police station, it does not ipso facto prove that there was a reasonable apprehension in the mind of the husband that he would be maltreated by the wife over again. The silent positive role of the wife in such circumstances after having lodged a complaint to the second elder brother Sukumar (who stayed in the same house but in another floor) will not amount to any apprehension of recurrence of any such events. We therefore rule out any positive act of cruelty from the trend of behaviour of the wife respondent so as to entitle the husband to obtain a divorce against her. Mr. Mitra submitted before us to look with proper introspection the entire course of events during the short period of conjugal life that the couple had together in between the date of marriage i.e. 15.5.82 and the date when the husband left the matrimonial home i.e. 25.12.82. We have to reckon in this context that the suit for divorce was filed on 10.6.83. It is indeed true as has been propounded in Dr. N.G. Dastane Vs. Mrs. S. Dastane, that the harm or injury to health, reputation, the working career of the life would be important considerations in determining whether the conduct of the respondent amounts to cruelty. It is not necessary, as under the English Law, that the cruelty must be of such a character as to cause danger to life, limb or health as to give rise to a reasonable apprehension of such a danger. Therefore what the courts must determine is not whether the petitioner has proved the charge of cruelty having regard to the principles of English law, but whether the petitioner prove is able to that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent. The court has to deal, not with an ideal husband and an ideal wife but with the particular man and the particular woman before it. The ideal couple or a near ideal couple will probably have no occasion to go to the matrimonial court, for even if they may not be able to drawn their differences, their ideal attitudes may keep them to overlook or gloss over mutual faults and failure. We are convinced in the facts and circumstances of the present case that the husband is trying to take advantage of his own wrong and his suspicious mental condition and personality disorder and overtly sensitive nature and emotional coldness to marital relation, cannot be a ground for divorce against his wife who even today is ready and willing to accept him as his marital partner.
7. Mr. Mitra placed before us a Division Bench judgment of our Court in Tapankumar Chatterjee Vs. Smt. Kamala Chatterjee, Even though the Division Bench in this Court chose to follow the more or less the earlier decisions on the point by not taking into account the previous Supreme Court decision in Dr. N.G. Dastane Vs. Mrs. S. Dastane, had held that cruelty is willful and unjustifiable conduct of such a character as to cause danger to life, limb, health bodily or mentally or to give rise to a reasonable apprehension of such a danger. We can only infer in the facts and circumstances of the present case that it is manifest from the evidence that if cruelty and desertion had ever been perpetrated upon anybody, it was on the wife by the resent appellant husband.
8. Mr. Mitra placed before us a Division Bench judgment of our Court in Ratnamayee Das Vs. Bikash Das, . This decision reiterates the principle that a court dealing with a matrimonial cause will be justified in returning a verdict of cruelty on consideration not only of intrinsic evidence but also on the attending circumstances. Proof of fact as required in criminal proceedings is not necessary in a matrimonial cause when the court is satisfied on the available evidence that a case has been made out. Such obligation can also be discharged by the Court on preponderance of probabilities. The test of "legal cruelty" would be whether any conduct which would make married life physically or otherwise impossible. Cruelty in this context means cruelty in the ordinary and natural meaning and the court has to decide whether the sum total of the reprehensible conduct was cruel so as to grant decree to the applicant spouse. It is indeed true that such a finding would depend on the answer to the question as to whether the cumulative conduct of a guilty spouse in a given case is sufficiently grave and weighty to conclude from a reasonable person''s point of view, after concession of any excuse, that the conduct was such that the applicant spouse ought not to be called to endure the same. The other element is that the conduct must be grave and weighty and mere austerity of temper, petulance of manner, rudeness of language, want of civil attention and accommodation, even occasional salies of passion, would not construe cruelty. It is the duty of the court to interpret, analyse and define cruelty in a particular case. The broad and liberal test for interpreting Section 13(1)(ia) of the Hindu Marriage Act, will be that the complaining spouse cannot reasonably be expected to live with the other spouse and there is no doubt that in order to find cruelty, a liberal and broad test will have to be applied. Taking into consideration the entire guideline as delineated in the said reported decision which we respectfully follow in the instant case, we are unable to answer a verdict against the wife in the facts and circumstances of the present case.
9. We have taken into account the submissions made by Mr. Bhaskar Bhattacharjee, Advocate appearing for the wife respondent that the case of excessive demand of sex is without any evidence. Moreover this aspect of the matter has not been pressed by the learned advocate for the appellant. As regards the incident of 1st August, 1982 which the Trial Judge did not believe to be true because of noncorroboration, we find as well a candidate admission from the petitioner husband appellant that despite the wife beating him with a stick on August 1, 1982 they lived together as husband and wife till December 25, 1982. Thus virtually a case of condonation on the point is established. In Sm. Aloka Dey Vs. Mrinal Kanti Dey, a Division Bench of our Court held that if it is not claimed that the husband and wife did not resume cohabitation it would be presumed that in fact there was a condonation. Applying the said principle we cannot but hold that in between 1st of August, 1982 and 25th December. 1982 by virtue of the fact that they lived together and shared the same bed, there was in fact a condonation of the matrimonial offence, even if it is assumed for the sake of argument that such an incident took place on August 1, 1982 even though there is no corroboration on the point to land credibility to the same.
10. As regards the incident of 25th December, 1982 we have already come to a conclusion that neither in the first information report nor in his narration of events before the doctor, the appellant did mention the complicity of the wife respondent.
11. Mr. Bhattacharjee by citing the decision in Narbada Prasad Vs. Chhaganlal and Others, contended before us that on this score the practice of the courts has uniformly been to give the greatest assurance to the assessment of evidence made by the Trial Judge who hears the witnesses and witnesses in the first instance. In an appeal the burden is on the appellant to prove how the judgment under appeal is wrong. To establish this the appellant must do something more than merely ask for a re-assessment of the evidence. The appellant must show wherein the assessment as made by the Trial Court has gone wrong. Where the Court of first instance relies upon probabilities alone perhaps the appellate court may be in as good position as the court of Trial in judging the probabilities but where the court of trial in own sense of the credibility of a witness, the appellate court is (sic) at a disadvantage because it has not before it the witnesses but the dead secord of the deposition as recorded. Applying these tests Mr. Bhattacharjee submitted before us that there was no scope for re-assessment of the evidence in this particular perspective. As regards the obstruction on the part of the wife and the second elder brother Sukumar in performing Sradh ceremony of the appellant''s father by the appellant in their matrimonial home, we have gone through the evidence on this score and we are not convinced that it amounted to any act of cruelty perpetrated by the wife, because the main role that was attributed in this context was ascribed to the second elder brother Sukumar. The eldest of the brothers married a girl of barbar caste and separated from father during his life-time and did not maintain any good relation with father. The husband appellant also left his father leaving him to the sole charge of the wife respondent, even though the second elder brother of the appellant Sukumar already separated from the father and was living in a different mess. The father not only gave a major share of his property to the appelent but was living with him and his wife. As to why he left not only his wife but also his old ailing father behind, is rather inexplicable but the only answer we find from the family doctor''s testimony is that he was suffring from mental depression.
12. Mr. Bijitendra Mohan Mitra further submitted before us the decision in Radha Prasad Singh Vs. Gajadhar Singh and Others, that when it appears to the appellate court that important considerations bearing on question of credibility have not been taken into account Or properly weighed by the Trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the Trial Judge is wrong, the appeal court should have no hesitation in reversing the findings of Trial Judge on such questions. Where the question is not of credibility based entirely on the demeanour of the witnesses observed in court but a question of inference of, one fact from proved primary facts, the court of appeal is in as good a position as the Trial Judge and is free to reverse the findings if it thinks that the inference is not justified. We have no scope whatsoever in the facts and circumstances of the present case to disagree with this proposition but the facts and circumstances of the present case we do not think even on our own appreciation of the facts and on reassessment of the evidence, we can reasonably differ from the view taken by the Trial Judge in holding the husband petitioner''s case of cruelty as having been proved at all.
13. Last but not least a question has been posed by Mr. Bhattacharjee that the alimony pendente lite that we ordered in the present case ought to have been from the date of pendency of the appeal preferred by the husband. In this context Mr. Bhattacharjee cited before us two Division Bench Judgments of our Court in Arya Kumar Bal Vs. Sm. Ila Bal, and in Smt. Sobhana Sen Vs. Amar Kanta Sen, While we take into consideration the fact that in the Trial Court there was an order for alimony pendente lite passed in favour of the wife respondent, no such application was filed before the appellate court prior to 31.7.92 and by our order dt. 18.8.92 we directed the husband-appellant to pay to the wife-respondent alimony pendente lite at the rate of Rs. 600/- (Rupees Six hundred) per month from the date of the application i.e., from 31.7.92 but still we granted her liberty to file a separate application to pray for alimony pendente lite with effect from the date of presentation of the appeal. On the date of the presentation of the appeal the wife was not getting any alimony pendente lite just because the lower court proceeding terminated with the dismissal of the suit brought by the husband-appellant. Mr. Bijitendra Mohan Mitra, learned Advocate who appeared in the matter with Mr. Bijon Behari Roy, learned Advocate for the appellant contended before us that even though a discretion is vested in the Court to pass the order of alimony pendente lite from the date of presentation of the plaint in respect of the trial court proceeding and in respect of the date of presentation of the appeal in respect of the appellate proceeding, normally the order is made from the date from which the application is filed. Mr. Mitra submitted before us a Full Bench decision of the Jammu and Kashmir High Court in Amrit Lai vs. Usha reported in AIR 1982 J.&K. 98 and particularly is drew our attention to paragraph 20 of the said judgment. Section 30 of the J. and K. Hindu Marriage Act is almost to Section 24 of the Hindu Marriage Act. What was reiterated in the said Full Bench decision of the Jammu and Kashmir High Court is that this provision being exclusively meant for the benefit of the indigent spouse. It is entirely for the indigent spouse to decide whether or not she has to avail the benefit and if so. from what point of time and such an intention would normally be manifested by the application made in that behalf. The spouse may move that application if she is an applicant to the matrimonial lis either along with the substantive petition or even at a stage much later than that. There would obviously he no justification for granting maintenance in favour of such a claimant from a date earlier than the date of the application, when such an application could have been moved along with main petition. Similarly a respondent being hard pressed may 111 afford to await the service of the substantive petition and may make an application by voluntarily appearing in the Court. To make maintenance payable in favour of the applicant from the date posterior to the date of the application would be manifestly unjust. In any case, therefore, the date of the application for such maintenance shall morally be the point of time from which relief may be granted, even though claim from an earlier date of course not earlier than the date of the commencement of the main proceeding, is given to the party claiming the same. Unless it can satisfy the Court as to what prevented the applicant from making the application earlier. Lacks on the part of the applicant from making the application shall always be considered as a circumstance disentitling applicant from claiming the relief from a date earlier than the date of the application. It must be home In mind that this view was expressed by the Full Bench of the Jammu and Kashmir High Court in respect of a trial court proceeding and is not confined to the appellate court proceeding where the applicant in the lower court was already found to be entitled to alimony pendente lite which was stopped with the passing of the order of dismissal of the proceeding brought at the behest of the husband against the wife. The wife indeed is an aggrieved party in the case and she is not aware of the proceeding brought by the husband against her in the appellate forum. It is indeed true that in the facts of the present case, the appeal was filed out of time and the delay was condoned and only at the time of condonation of delay she could know of the proceeding brought by the husband at the appellate stage. Be that as it may we do not think that the observations as made by the Full Bench of Jammu and Kashmir High Court in the case referred to are applicable in the facts and circumstances of the present cast so as to disentitle the claim of maintenance or alimony pendente lite by the wife whatever name it is called from the date of presentation of the appeal referred by the husband by appellant. Calculating the entire amount Rs. 600/- per month we find that she after taking into sum of Rs. 5000/- already paid by the husband-appellant pursuant to the order dated 25.2.91, would fee entitled to a further sum of Rs. 19.800/ - as (sic) pendente lite which amount is to be paid to her within & period of four months from this date, failing which the respondent would be entitled to execute the said amount against the husband petitioner by way of attaching his pay according to law.
14. An oral prayer is made by the learned Advocate for the appellant for a certificate of fitness for leave to appeal to Supreme Court. We reject the said prayer, Mr. Mitra, learned Advocate for the appellant further wanted a stay of operation of the order for a period of six weeks. In view of the fact that we have already granted four months time to the husband-appellant to pay the arrear amount of alimony pendente lite, we think the prayer is redundant and we dismiss the said prayer.
15. Let the certified copy of the Judgment be given to the learned Advocate for both parties as expeditiously as possible. There will be no order as to costs in the present appeal.
Nikhil Nath Bhattacharjee, J.
I agree.
