Mahitosh Majumdar, J.@mdashShri Dipak Kumar Roy, husband (for brevity the petitioner), could not succeed before the Court of the District Judge, Purulia in obtaining the Decree of Divorce against Sm. Anjali Roy, his wife (for short mentioned as the Respondent hereafter). He has, therefore, come up in appeal u/s 2 8 of the Hindu Marriage Act, 1955 (for short mentioned as the said Act hereafter), against the judgment dated April 6, 1983 of the learned District Judge, Purulia, dismissing his suit. The dissolution of marriage was claimed by the petitioner on the allegations that the Respondent committed adultery and treated the petitioner with cruelty. It was his case that according to Hindu rites, the marriage between the petitioner and the respondent took place at village Kumardanga, P.S. Onda, District Bankura and in the house of the father of the respondent on 31st May, 1978, when the petitioner was aged 38 years and the Respondent was about 2 5/27 years old and the marriage was consumated and a son was born on 2nd April 1979. It has also been stated that after the solemnization of the marriage, the petitioner came to his residence at Palashola with his wife and from the date of arrival of the respondent in his house, the petitioner found her extremely wild and ill-tempered.
2. It has also been alleged that on the day of Baubhat, the respondent even refused to perform the ceremony of striachar, broke the pitcher i.e. Kalashi, Sankha Balay, tore garlands and removed vermillion from her head and left the room when striachar and other functions were to be performed. It has further been stated that on 20th. June 1978, the petitioner along with the respondent left Adra for Udaipur, for attending the Annual General Meeting of All India Station Masters'' Association, which was to be held there from 23rd June 1978 to 25th June, 1978 and the service-colleagues of the petitioner also went along with him. It is alleged that the respondent, during the time of. journey by train and stay at Udaipur, behaved with the petitioner in wild manner and treated him with cruelty, so much so, that the colleagues of the petitioner became apprehensive about the life and safety of the petitioner. It was the case of the petitioner that the respondent became furious and declined to proceed to Udaipur in the same compartment with him and ultimately, she travelled in another compartment. It has been alleged that in Udaipur also, the respondent behaved wildly and treated the petitioner with cruelty. It is further alleged that the respondent during her stay at Udaipur moved here and there without informing the petitioner and. whenever the petitioner asked about her movements, she quarrelled and abused him in filthy language.
3. It would appear from the pleadings that on 27th June, 1978, while on way back, the respondent''s menstruation smarted at Delhi and from Delhi, they reached Varanasi on 28th June, 1978, where it is alleged, all of them. including one Madhusudhan Pathak, put up in a Dharmashalla known as Patel Dharamashalla. It is also alleged that at about 1/1.30 a.m., the respondent was found sitting on the railing of the Second Floor and two persons namely Madhusudhan Pathak and I.R. Majhi were saying that she would commit suicide. Thereafter, the respondent was persuaded and requested by the petitioner and the said two persons, to come down and in fact after coming down she started assaulting the petitioner in the presence of those two persons and they had to go to the Railway Station, but no train was then available. It has also been stated that, from Varanasi, they reached Adra on 30th June, 1978 and the petitioner sent information to the, respondent''s father about the incident, whereupon the father of the respondent took her to Onda on July 1, 1978 and the petitioner duly intimated all the aforesaid matters and happenings to the father and the brothers of the respondent.
4. Thereafter, on 14th October, 1978, the respondent''s eldest brother brought her to the petitioner and on the next day, Nanigopal Sarkar, the eldest brother, of the respondent, gave an undertaking in writing to the effect that if the respondent misbehaves with the petitioner or with anybody from that day, then the eldest brother would remain responsible for her acts and actions. It is alleged that after some months, the respondent again began to torture the petitioner, both mentally and physically. It is alleged that in the month of March, 1979, the mother-in-law of the petitioner came and assured that the respondent would stay with the petitioner and she would further see that the respondent changes her conduct. It is further alleged that instead of changing her character, one day in the month of March, 1979, when the petitioner was getting ready to report for duty, the respondent brought a glass of milk for him. The petitioner, immediately after taking the milk, fell sick and started vomiting. It has also been alleged that the respondent, had illicit connection with one Krishna Palit alias Jharu.
5. On 9th July 1980, the petition u/s 13 of the said Act was presented by the petitioner. After a lapse of almost 18 months from the date of presentation of the petition, an application for amendment, praying for treating the same as part of the original petition, was filed and the amendment, as prayed for, was allowed. It would also appear that the respondent entered appearance and contested the proceedings for divorce by filing written objection, whereby she denied the allegations of cruelty, including the supply of the glass of milk mixed with poison or some injurious substance, apart from claiming that the marriage was consumnated and a son was born to the parties on 2nd April, 1979. It was also claimed that the relationship between the petitioner and respondent was cordial and the petitioner caused the respondent to be examined by the Doctor at regular intervals, at the time of her pregnancy and invited his mother-in-law to be present at the time of delivery of the child. The respondent denied the charge of adultery with Shri Krishna Palit alias Jharu and further asserted that she did not know him. The respondent also took exception to the petitioner''s intimacy with a girl at Adra.
6. The parties were taken to the trial on the following issues:
i) Is there any cause of action for the Suit?
ii) Had the respondent after solemnisation of the marriage had voluntary sexual intercourse with any other person than her husband?
iii) Has the respondent after the solemnisation of the marriage treated the petitioner with cruelty?
iv) Has the petitioner condoned the adultery of voluntary sexual intercourse of the respondent with any other person ?
v) Has the petitioner condoned the cruelty of the respondent ?
vi) To what relief, if any,, is the petitioner entitled ?
7. The learned Court below, after consideration of the pleadings of the parties and evidence both oral and documentary as adduced before it, came to the findings that adultery of the respondent has not been proved. It was not also proved that the respondent had sexual intercourse with any person other than her husband after her marriage. Issue (ii) has been decided in favour of the respondent and against the petitioner and accordingly, the Court below has held that in view of such findings on Issue No. (ii), decision on issue No. (iv) should be answered against the petitioner. As regards Issue No. (iii) the learned Court below reached its conclusion that the Exhibits and the depositions of the witnesses for the petitioner, do prove cruelty before 14th October, 1978, but there was no cogent evidence to show and establish cruelty after that date and the care taken by the petitioner about or at the time of respondent''s delivery and her stay till her delivery under care of the petitioner, go to show, that the cruelty complained of, was condoned. The learned Court below has decided Issue no. (iii) against the respondent and Issue No. (v) in favour of the respondent.
8. Now, we shall turn to the evidence of the witnesses tendered before the learned Court below, both oral and documentary. Shri Narayan Kaibarta, (P.W. 1), a cultivator by occupation deposed that Shri Krishna Palit alias Jharu, was the nephew of Bhajahari Sarkar and he used to live in the quarter of Bhajahari Sarkar, his maternal uncle and the respondent had some love affairs with him and for that reason, she used to come in that quarter. He has further deposed that even after one month of the marriage of the respondent, she was found to come to Jharu as before and used to stay in the quarter of Bhajahari during his absence, for one or two hours and even after retirement, he found Anjali coming to the said Jharu as such. The said P.W. 1 has further deposed that he did not know where the house of Krishna Palit was. He only stated about the age of both the respondent and Krishna Palit. According to him, both of them were aged about 18 to 20 years at the relevant time. P.W. 1 of course admitted that he did not say anything to Bhajahari Sarkar about the coming of the respondent to his quarter during his absence. The said P.W. 1, has further in cross-examination stated that by love affair, he meant that Anjali and Jharu were found moving together. Shri Madhusudhan Pathak (P.W. 2), accompanied the appellant and the respondent to Udaipur in the month of June, 1978 and he tried to corroborate the petitioner about his wife''s refusal to travel in the same compartment at Delhi and deposed that, the appellant and respondent returned to Adra on 30th June, 1978. Shyamal Majumdar, (P.W. 3), hails from Adra and resides near the house of the petitioner. He narrated about the behaviour of the respondent at the time of Striachar and also her leaving for Udaipur and their return from Udaipur. He stated that after their return from Udaipur, on the following moring, the respondent went to Onda, her father''s house and she came back to the house of the petitioner after three and half months and the elder brother of the respondent, agreed in writing that the respondent would behave properly and the respondent was thereafter sent to the quarter of the elder brother of the" petitioner, where she stayed for about two months and she was again brought to the house of the petitioner at Palashtola. He has also stated that he found one youngman talking to the respondent in the bed-room of the petitioner and the said youngman used to come to the house of the petitioner during his absence on more than two or three occasions and the same witness deposed that he learnt that the said youngman was Krishna Palit. This witness further deposed that he heard about the incident that took place after the drinking of milk by the petitioner. Sri Dilip Kumar Roy (P.W.4), the elder brother of the petitioner narrated the refusal of the respondent to perform the ceremonial functions after the marriage and he also deposed that on 14th October, 1978, the respondent came to the P.W. 5, Dipak Kumar Roy''s quarter at Adra and her older brother agreed, by giving an undertaking in writing, that the respondent would behave properly. It was his deposition that the respondent stayed at his quarter for 8 or 10 days and then went to the quarter of his maternal uncle and stayed there for 10 to 15 days and thereafter, came back to the quarter of P.W. 4. P.W. 4 has also narrated about the visit of Krishna Palit to his quarter during his absence. He has deposed further that he was told by the petitioner about his becoming unconscious after taking milk. Dipak Kumar Roy (P.W. 5), has deposed about the incident of Striachar, visit to Udaipur and return from Udaipur. He has also stated that on 14th October 1978, the respondent came with her elder brother to the house of the petitioner from her father''s house and her elder brother gave an undertaking for good conduct. He deposed further about the visit of an outsider during his absence and the incident relating to his taking milk and becoming unconscious. He also deposed that the respondent gave birth to a male child on 2nd April, 1973 and proved the letters Exhibits 1A and 1B.
9. Sm. Anjali Roy (O.P.W. 1), the respondent, denied the allegations and stated that she did know any person named Krishna Palit nor was Krishna Palit, her class-mate or she had any love affairs with him in the College. She further denied that after her marriage, Krishna Palit visited her at Palashtola. She denied having any knowledge of a gangman named Narayan. She denied that she offered poisonous milk to her husband, after which., her husband started vomitting. She has also deposed that her husband himself got her admitted in the Adra Railway Hospital and her mother stayed at the hospital and she come at the request of her husband. After discharge, the respondent returned to her husband''s place and her mother stayed there for about one and a half months. Thereafter, her mother returned to Kumardanga. She has asserted further, that her husband took her to her parents'' place at the time when her son was about 3-1/2 months old. She also denied the material allegations and according to her, her husband had instituted the proceedings with the intention of marrying again. Aparajita Sarkar, (O.P.W. 2), the mother of the respondent has deposed about the dlivery of the petitioner''s child and her staying at the house of the petitioner for about 1-1/2 months for looking after the child. She has also denied about the love affairs of the respondent with Krishna Palit. Shri Nani Gopal Sarkar, (O.P.W. 3) the brother of the respondent deposed and stated about his written undertaking at the insistence of the petitioner, promising that his sister would not behave badly as complained of by him. According to him, the petitioner had all along misbehaved with the respondent since her marriage. Exhibit 1 dated 5th July, 1978 was written by the respondent''s brother requesting her to adjust herself with the husband''s family. On the same day, the respondent''s brother requested the petitioner to keep patient. Exhibit 1B is a latter of the respondent, requesting the petitioner to excuse the respondent. Exhibit 3 is an undertaking given by Shri Nani Gopal Sarkar and Exhibit ''A'' is a letter written by the petitioner to the father-in-law showing anxiety about the delivery of the child.
10. Mr. Syama Prasanna Roy Chowdhury, the learned Advocate appearing in support of the appeal, submitted that the evidence both oral and documentary, contained ingredients of cruelty and the respondent is really guilty of cruelty. That apart, Mr. Roy Chowdhury advanced his submissions on the findings of the Court below, as against Issue No. (ii) and the decision, according to him, was unjustified. Mr. Roy Chowdhury also submitted that there has been no condonation of the cruelty, as found by the Court below against Issue no. (v).
11. The contentions of Mr. Roy Chowdhury as regards Issue no. (ii), if considered in the light of the pleadings of the parties, depositions of the witnesses and documentary evidence, in our view cannot be accepted, as we do not find any cogent ground for interfering with the decision of the learned Court below with regard to the charge of adultery. Mr. Roy Chowdhury submitted further that there must be pleadings as regard condonation and without such pleadings, the Court cannot on its own, condone, the matrimonial offence, inasmuch as, condonation has a special meaning in matrimonial matters. According to Mr. Roy Chowdhury, the condonation, as required to be pleaded, was not pleaded at all. He, while proceeding to assail the findings of the Court below, laid emphasis on the fact that matrimonial offence as complained, of has been proved and established and for such establishment of the offence, according to him, strict corroboration as is applicable in criminal trials, is not necessary, in as much as corroboration is a matter of precaution and not of law. Mr. Roy Chowdhury further scanned the evidences and/or depositions of the witnesses, for the purpose of showing that the respondent was guilty of cruelty and for that purpose the standard of proof applicable in criminal trials is not required in matriminial cases. He focussed on the net effect of the Amending Act, whereby section 10(1)(h) of the said Act has been amended. Mr. Roy Chowdhury further contended that by reason of the said amendment, old doctrine of danger is replaced, by the broad test, whether the petitioner spouse cannot reasonably be excepted to live with the respondent. According to Mr. Roy Chowdhury, the matrimonial offence, if committed by the respondent, would not only constitute physical cruelty, but also mental cruelty and there was no legal or factual warrant for the court below to come to a finding that there had been a condonation of the offence complained of, as the petitioner neither forgave the respondent nor allowed the said offence to be condoned. The mere fact that the respondent was allowed to stay, at the home of the petitioner, would not mean that the offence has been condoned.
12. Mr. Roy Chowdhury next relied on the letter written to the petitioner by the respondent, as also the letter of the elder brother, being Exhibits A(1) and A(b) and contended that the said two Exhibits, if read together, would show that the respondent was actually guilty of cruelty and the said cruelty, stood amply substantiated by the corroboration of the different witnesses. In support of his submissions, Mr. Roy Chowdhury relied on the decision in the case of Dipali Das vs. Gorachand Das, 87 CWN 648, which has decided that the word ''cruelty'' even if not mentioned in the pleading can be proved from the facts stated in the pleading. It has further been held in that case that the proof of fact as required in the criminal cases, is not necessary in a matrimonial proceeding, when the court is satisfied on the evidence adduced before it, that a case has been made out u/s 13 and further more, if the Court is satisfied on the basis of the materials of the case, a decree in favour of the petitioner can be given. The next decision of Smt. Krishna Sarbadhikari vs. Alok Ranjan Sarbadhikari, 89 CWN page 156, as cited by Mr. Roy Chowdhury deals with the reach and sweep of section 23(1)(b) and as regards satisfaction of the Court and there it has been indicated that it can be based on preponderence of probabilities. The aforesaid case has also decided that the legal concepts of cruelty comprises two distinct elements firstly, the ill-treatment complained of, secondly, the resultant danger or apprehension thereto and the expression ''cruelty'' comprehends both mental and physical cruelty. It should also be noted that Mr. Roy Chowdhury, strenuously reinforced his argument by relying on the various paragraphs of the most celebrate decision of the Hon''ble Supreme Court in N.G. Dastane vs. Mrs. S. Dastane, AIR 1975 SC 15 34, in support of his contentions that matrimonial offence complined of has not been condoned in this case and the respondent was guilty of cruelty even on the analogy of the liberal and broad tests as applied in the said case of Dastane vs. Dastane (supra). Mr. Roy Chowdhury''s contention was also that section 23(1)(B) of the said Act warrants that the satisfaction of the Court must be founded upon legal evidence. According to him, ''satisfaction'' of the Court in the facts of the present case was based on mere probalities and his last contentions were that there be pleading as regards ''condonation'' and in the instant case, ''condonation'' was not pleaded by the "respondent in her written statement.
13. Mr. Ajit Kumar Roy, the learned Advocate appearing for the respondent, while supporting the views taken by the learned Court below, initiated his argument by submitting, that even if no cross-objection to the findings is filed, challenge can be laid, as is found by the Division Bench of this Court in the case of
14. Exhibit 4(1), the letter of the elder brother admittedly shows the financial stringency and the poverty of the family of the respondent. Mr. Roy drew our attention to the said Exhibit in support of his contentions that the petitioner''s attitude towards his wife should not be lost sight of, particularly from the point of her financial insecurity. Mr. Roy also submitted that the charge of adultery, without making Krishna Palit a co-respondent in the proceedings must fail, as the said allegations cannot be sustained on the ground of the failure of the petitioner to make Krishna Palit, a co-respondent and the charge of adultery without specific particulars and evidence and disinterested witnesses cannot be proved and the petitioner, according to him failed to substantiate the said charge of adultery against the respondent. These apart, from the evidence, Mr. Roy stated that it appeared to be utterly insufficient to prove the allegations of adultery. We feel that it is true that it is really not possible to prove adultery by direct evidence and the question has to be decided whether on the evidence available, the learned Court can be satisfied on the preponderance of probabilities that the adultery was committed. In the instant case, circumstantial evidence, which does not lend to an inference of the alleged adultery nor does it carry the necessary degree of probability. The pleading that the marriage was duly consummated really outweighs the plea of adultery. The expression ''consummation'' in the back-drop of matrimonial consortium should be of wide import.
15. We find that there is no foundation both factual and legal, for accepting the plea of adultery raised by the petitioner against the respondent. The petitioner utterly failed to substantiate or to establish the serious charge of adultery against the respondent nor did he adduce any evidence to show that the respondent, during the period between 1st July, 1978 to 13th October, 1978, had any access, scope or opportunity to have sexual relation with Krishna Palit alias Jharu. The evidence of P.W. 1, Shri Narayan Kaibartha, a cultivator by occupation, appeared to be utterly vague, as he did not depose anything, which could, by any stretch of imagination, establish illicit connection amounting to adulterous act between the respondent and the said Krishna Palit. It was admitted by P.W.1, that he did not say anything to Bhajahari Sarkar about the visit of the respondent to his quarters during his absence. We feel that nothing turns on the evidence of P.W. 1, as his evidence was tainted with vagueness. It is curious to note that by love affairs, P.W. 1 only meant that the respondent and Krishna Palit were moving together.
16. From the evidence of P.W. 3, Shri Shyamal Majumdar, it appeared that the said P.W. 3 did not notice anything, which may constitutes any adulterous act, P.W. 3 only found one youngman talking with the respondent in the bed room of the petitioner. Mere presence of Krishna Palit in the bedroom of the parties does not constitute an adulterous act. No conclusion of adultery could be reached, where the respondent was/found talking with someone, here namely Krishna Palit, other than her husband, in the bed-room of the petitioner. The mere fact that Krishna Palit used to visit the quarter or house of the petitioner during his absence or had attended on three/four occasions does not prove that there was any illicit relation between the respondent and Krishna Palit. The petitioner admitted that the marriage was consummated and a child was born on 2nd April, 1979. After such admission, the petitioner sought to doubt the legitimacy of the child born on 2nd April, 1979, although the pleadings do not support such belated plea, that the child delivered by the respondent, was not the product of consummation of marriage between the respondent and the petitioner. The learned District Judge, in our view, for very good and sufficient reasons did not accept the plea of adultery and/or illegitimacy of the child, as alleged and in support of, the reasons, the learned District Judge duly relied on Modi''s Medical Jurisprudence, 16th Edition at page 324. The belated plea of adultery vis-a-vis illegitimacy cannot, therefore, be accepted (i) Krishna Palit was not made a co-respondent; (ii) the case of the petitioner that the marriage was duly consummated and a child was born and (iii) there was no evidence either direct or circumstantial that the wife, after being sent to her father''s house on 1st July, 1978, had any opportunity to have illicit relation or sexual connection with Krishna Palit. In fact, there has been no whisper that the respondent had any sexual involvement with any person other than her husband after the marriage. It should be noted that direct evidence on an act of adultery as indicated earlier, is very rarely available or in other words, so extremely difficult to obtain, that insistence on it by Courts, may amount to a denial of legitimate protection of marital rights. In fact, proof by ocular evidence, would normally required to be corroborated by circumstantial evidence. To lay down in general. Rules or to attempt to define what circumstances would be sufficient for inferring the fact of adultery, is well-nigh impossible and we feel further that each case must depend on its own peculiar and particular facts and circumstances. But one thing is certain that evidence must travel beyond establishing mere suspicion and the possibility to commit adultery and evidence must be such, as to satisfy the conscience of the Court, that adultery must have taken place, if the factum of adultery is sought to be proved by circumstantial evidence, the evidence should be such, as would be incompatible with innocence of the party charged.
17. In Dastane v. Dastane (Supra) the Hon''ble Supreme Court of India has held that a fact can be said to exist, if on weighing various probabilities, the preponderance is in favour of its existence. The first aim in this process is to fix the probabilities, the second, to weigh them, though they too are often intermingled and the impossible is to be weeded out at the first stage and the improbable at the second stage, apart from holding that proof beyond reasonable doubt is proof by a higher standard, which generally governs Criminal trials or trials involving enquiry into issues of quasi-criminal nature. In the present case, the petitioner has not only failed to prove that the respondent was living in adultery, but has also failed to prove any or more stray acts of adultery. We are of the view that in the absence of any evidence, either direct or circumstantial, the learned District Judge for very good reasons, decided the Issue No. (iv) in favour of the respondent and we do not find any ground for altering or reversing such decision. Accordingly, the said decision in respect of Issue No.(iv) is upheld and we hold that Issue Nos. (ii) and (iv) have thus been lightly decided against the petitioner.
18. With regards to Issue Nos. (iii) and (v), Mr. Roy''s contention was that the ''cruelty'', even if committed, was condoned since marriage was duly consummated even after the occurrences that took place between the period 31st May 1978 to 26th June 1978. Consummation of marriage, we feel, is the clearest manifestation of restoration of matrimonial consortium and matrimonial offences, even if proved, can at best be called trivialities, which do embrace the sweep of ordinary wear and tear of married life. The allegation of cruelty, followed by the birth of the child, alleged to have been committed by the respondent, was condoned. The aforesaid acts certainly constitute the intention of the petitioner to forgive and remit the wrong. Mr. Roy further submitted that no specific case of cruelty after 14.10 1978, has been made out, for example no instance of continuous ill-treatment, cessation of marital relations, studied neglect, indifferent act of the respondent have been cited either in the pleading or in the evidence. The word ''cruelty'' in our opinion cannot and should not be put in a strait-jacket of judicial definition. It must be viewed on the facts of each case, having proper and effective regard to the surrounding circumstances of social customs, condition of the parties, traditions, caste, community and upbringing. All these facts ought to be taken into account before the Court reaches its conclusion as to whether cruelty has been committed or not. The instances cited by M. Roy Chowdhury do not constitute a grave weighty evidence to cause cruelty and admission of the consumation of marriage and birth of the child, would naturally outweigh the hypothetical pleas of the petitioner.
19. The test of legal cruelty is that any conduct, which would make married life physically or otherwise impossible. Cruelty in law of divorce means ''cruelty'' in ordinary and natural meaning and it has no esoteric or artificial meaning in that law. In this connection reference may be made to Gollins v. Gollins (1932) (2) All England Report 996. In the said case. Lord Pearce said "in the light of the vital fact, the Court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently grave and weighty to say that from a reasonable person''s point of view, after consideration of any excuses, which the respondent might have in the circumstances, the conduct is such that the petitioner ought not to be called to endure it. The other essential element is that the conduct must be grave and weighty. Mere austerity of temper, petulance of manners, readiness of language, want of civil attention and accommodation, even occasional sallies of passion, do not constitute cruelty, against which the law can relieve". We think that in view of the provisions as contained u/s 23(1)(b), we are to find out whether cruelty in this case was condoned by the petitioner. As the aforesaid provisions casts obligation on the Court to consider the question of condonation and to discharge the obligation, even in an undefended case, it is not necessary to have matrimonial offence proved by the petitioner beyond all reasonable doubts, as the same decree of proof as required in a Criminal proceeding is not required in matrimonial cases which is in the nature of civil proceeding. It is true that matrimonial proceedings are of civil nature and as such the test or standard of proof applicable in criminal trials need not be applied and it is not at all necessary to establish the allegations beyond any reasonable doubt, the reason being that Criminal trials involve the liberty of the subject, which may not be taken away on a mere preponderence of probabilities. We feel that it would not be correct to import such considerations into cases of civil nature.
20. In Dastane vs. Dastane (Supra), the Hon''ble Supreme Court of India has observed that cruelty in matrimonial law may be subtle or brutal, physical or mental, that it may be word, gesture or by mere silence, violent or non-violent and the Court is required to see, that cruelty is of such type, from. which a prudent man would be fully satisfied that the atmospheres or environment in the matrimonial house is so sur-charged that it is not conducive to mental and physical health of any of the spouses to live together. Though we fully agree that the tests or burden of proof in Criminal proceeding need not be applied in matrimonial proceedings, but nevertheless, scrupulous care and caution is required to be taken by the Court to see that the innocent spouse is not fastened with the matrimonial offence. It should be noted that Mr. Roy Chowdhury dealt it length, on the net effect of the Amending Act no. 68 of 1976 as regards ''cruelty'', with special stress on old section 10(1)(b) of the said Act, which reads thus:
10(1) Either party to marriage whether solemnised 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 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.
Section 10 of the parent Act was amended so as to effect transfer of the ground of the judicial separation from that section to section 13, permitting either judicial separation or divorce on the new grounds enumerated therein.
Section 13(1)(b) of the Act 68 of 1976 reads as under:
13(1) Any marriage solemnized, whether before or after the commencement of this Act, may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party
(i)........
(i-a) has, after the solemnization of the marriage treated the petitioner with cruelty.
21. The Act 68 of 1976, although does not contain what would constitute cruelty, but it appears left to the Court to interprete, analyse and define cruelty in a case, depending upon variety of factors. The broad and liberal test for interpreting section 13(1) (ia), as amended, is to find out whether cruelty is of such type, that the petitioner cannot reasonably be expected to live with the Respondent. The contention of Mr. Roy Chowdhury, appears to be correct as regards the tests to be applicable in interpreting the net effect of the Act 68 of 1976, amending Section 10 (1)(b) and 13(1) (ia), which replaces the old doctrine of danger, as was applied, while interpreting old section 10(1))(b) of the Act. Mr. Roy Chowdhury, while advancing his contentions that there was no prior definition of cruelty excepting liberal and broad tests, as indicated by com also strenuously argued that the matrimonial offence, as committed by the Respondent in this case, not only amounted to physical cruelty, but also caused mental cruelty. He, while laying stress on the physical and mental cruelty, could not of course pinpoint the basis therefore, which would constitute both physical and mental cruelty, as contended by him. We find it difficult to accept the said contentions of Mr. Roy Chowdhury that the factual matrix as presented does show any basis of physical cruelty and/or mental cruelty. Physical cruelty may consist of physical violance, bodily danger. Physical violance in its term, may be actual or threatend violance. The germ of mental cruelty lies on the conduct of the Respondent, which would cause injury to the petitioner to live with the Respondent or it is of such nature, so as to create a reasonable apprehension to that effect and the same may amount to mental cruelty. It is, therefore, essential and vital to prove that mental cruelty can even cause more grievous injury and create in the mind of injured spouse, reasonable apprehension that it will be impossible or unsafe to live with the other party. We also feel that the conduct alleged, must also be viewed from the angle of the victim''s capacity or incapacity for endurance in so far as, that is, or ought to be known to the offending spouse and cruelty is in generality, in its character, a cumulative charge. Thus we say that whether the Respondent treated the petitioner with cruelty, can only be answered after all the facts and matrimonial relation of the parties and interaction in the daily life as disclosed by the evidence, have been taken into account. The case sought to be made out by the petitioner before the learned Court below and as also convassed before us does not contain such ingredients for physical cruelty or mental cruelty and there is no evidence of act of cruelty other physical or mental after 14th October 1978 and such fact was not averred either in the pleading or by the witnesses.
22. It is curious that even P.W. 3, in his cross-examination stated that in April 12, 1979, the Respondent had given birth to a male child at Adra Railway Hospital and the respondent was admitted in the Hospital at the instance of the petitioner and the Respondent, with the newly born baby, returned to the house of the petitioner from the Hospital. P.W. No. 4, also stated that after the discharged from the Railway Hospital, the Respondent, along with her baby, came to Palastola and she left for her father''s place within a month thereafter. P.W. 5 in examination-in-chief has deposed that he got the Respondent admitted in Adra Hospital, in connection with the delivery and she ultimately gave birth to a male child on 2nd April, 1979 in the Hospital and the Respondent and the child were taken by the Mother-in-law to her In-Law''s place. The conflicting versions as regards the duration of stay of the Respondent at the quarter of the petitioner, presented by prosecution witnesses justified the conclusion as regards the condonation of the offence by the Court below: P.W. 5, further admitted that by his letter Exhibit ''A'', the petitioner informed his father-in-law that the Respondent, his wife was in advanced stage of pregnancy and he was not unwilling to take the responsibility of her delivery and also requested him to take the Respondent to his place or to send his mother-in-law to the petitioner''s place, in connection with the delivery of the respondent, as would be deemed necessary. The petitioner further paid the necessary charges of the Hospital, in connection with the delivery of the Respondent and he brought the Respondent and the newly born baby to his house, after getting discharged from the Hospital. On an overall analysis of the evidence of prosecution witness, it appeared that the case of the petitioner suffered from utter contradiction and/or conflicting version of the prosecution witnesses. The Respondent stated in examination-in-chief that after the discharge of the Respondent from Hospital, she returned to her husband''s place. Her mother also stayed for about 1-1/2 months and thereafter, the Respondent''s mother returned to Kumardanga and where the son was about 3-1/2 months old, the petitioner took the Respondent to her father''s place. In cross-examination, the Respondent further stated that from the month of August, 1979, the respondent was staying at her father''s place. She i.e. the Respondent, further stated that she sent many letters to her husband, enquiring why he could not allow her to stay with him, but he did not reply. It is also stated by the respondent, that the petitioner did not reply to any of her letters of earlier occasions also. She denied the suggestion that she went to her father''s place with her mother two days after the discharge from the Hospital. In fact, no cogent ground and/or evidence was adduced before the Court below, in support of the case of the petitioner that the Respondent treated the petitioner with cruelty. The petitioner has also admitted that he did not mention the particulars of misbehaviour of the Respondent towards his maternal uncle or his wife or the elder brother of the petitioner. In our view, evidence of the prosecution witnesses do not show any complaint against the Respondent during her stay at Palaskhola, although there was a vague allegation of misbehaviour at the house of petitioner''s elder brother and maternal uncle and in fact, no material was placed before the Court below to the effect that the Respondent, after 14th October, 1978, treated the petitioner with cruelty. The wild allegations of contaminated milk cannot at all be believed and accepted, as neither the local Doctor, who was consulted at the time when the petitioner became semiconscious, was produced as one of the witnesses for the petitioner not the relevant medical evidence, showing that the petitioner had to be brought to normalcy by medical treatment, was made exhibits. It is very curious that P.W. 3, understood that some poison has been administered along with the milk, although in his cross-examination, he admitted that the petitioner was not required to be admitted in the Hospital, when he vomitted after drinking the milk, which was given by the Respondent and more particularly when he also deposed that on that very date, the petitioner performed his duties and attended his office at the belated hours and it is also to be noted that while he stressed upon his understanding that some poison might have been administered, he admitted that he did not get the sample of milk examined chemically, to ascertain, if any poison was really administered with the same nor he could get the vomitted milk or stool for examination. An unfounded allegation of offering contaminated milk which allegedly took place, sometime in the month of March 1979, in the absence of any cogent evidence or the evidence of any disinterested person cannot, but he disbelieved. We also feel that nothing turns on the evidence of other witnesses as regards revival of matrimonial offence, allegedly committed by the Respondent after 14th October, 1978. P.W. 4 deposed that he learnt from the petitioner that on ope day after taking milk (rice etc.), he fell unconscious and accordingly, he had to be medically attended by one Dr. Sheoji Misra of Adra. The said deposition is completely in conflict with the versions of the other witness. P.W. 4 did not depose anything about the supply of contaminated milk nor did he state, that the respondent served the petitioner a glass of milk, suspected to be mixed with some poison. He remained conspicuously silent over the contaminated milk. On consideration of the submissions and the facts of this case, we are of the view that cruelty in the facts and circumstances of the instant case, was not of the type, which satisfied the conscience of the Court to believe that the marital relations between the parties had deteriorated to such extent by reason of the conduct of the Respondent or that it become impossible for the petitioner and the Respondent to live together without wild bickering and open day to day confrontation.
23. While proceeding with the question of condonation affected by the petitioner, Mr. Roy relied on the decisions as indicated hereinbefore and it should also be noted that Mr. Roy Chowdhury strenuously reinforced his arguments by relying on the various paragraphs of the most celebrated decision of the Hon''ble Supreme Court in Dastane v. Dastane'' (Supra), in support of his contentions that matrimonial offences complained of, has not been condoned and the Respondent was guilty of cruelty even on the analogy of the liberal tests as applied in that case. Mr. Roy Chowdhury''s last contention was that Section 23(1)(b) of the said Act warrants that the satisfaction of the Court must be founded upon legal evidence. According to him, satisfaction of the Court in the facts of the present case was based merely on probabilities. Viewed from a clearest analysis of Section 23(1)(b) of the said Act, we think that the word ''satisfied'', must mean satisfied on a preponderance of probabilities and not satisfied beyond a reasonable doubt. The learned Court below watched the conduct of the parties, demeanour of the witnesses, examined the evidences both oral and documentary and considered the pros and cons of the entire case and after such active examination, was satisfied that the decree for annulment of marriage or divorce cannot be granted.
24. Turning back to the basis question, whether the respondent was guilty of cruelty and condonation of the matrimonial offence, it committed by the respondent, if the same has in actuality been effected or not, we now proceed to examine the same. Condonation of the matrimonial offences, according to Mr. Roy, was evident by reason of the fact that the petitioner was present all throughout during the time of the delivery of the child and also both the petitioner and the respondent stayed together in the matrimonial home upto the month of August 1979. Even the petitioner brought his mother-in-law to stay at his house at the time of delivery of the respondent. All these acts show, that there has been reinstatement of the respondent in her former marital position. The petitioner failed to prove the revival of the matrimonial offence as the petitioner took care of the respondent arid looked after her during this period. On the basis of the evidence in this case, we feel that the petitioner has failed to discharge his burden of disproving the condonation, which lay upon him nor did he establish that there has been no restoration of matrimonial consortium.
25. Mr. Roy also drew our attention to the letter of the respondent addressed to the petitioner and according to him, the said letter was an eloquent testimony to the desire of the wife to obtain the condonation. After the receipt of the letter, the petitioner admittedly allowed the respondent to come back to the matrimonial home. This act of the petitioner, not only constitutes act of forgiveness, but it also amounted to factual restoration to status quo ante. It was stated that after receipt of the letter, the petitioner, by allowing the respondent to return, home forgave her and thereafter, they stayed together without any further unhappiness or conflict, during the period between 14th October 1978 and August 1979. The story of milk alleged to have been mixed with poison, as indicated earlier, was disbelieved by the learned Court below. According to Mr. Roy, no untoward incident or matrimonial offence was proved nor direct or circumstantial evidence was adduced for the purpose of disproving the condonation of matrimonial offence. In answer to Mr. Roy Chowdhury''s submission that the Court cannot investigate condonation in cases where they are not pleaded, Mr. Roy submitted, even though condonation was not pleaded as defence by the respondent, Section 23(1)(b) casts an obligation on the Court to find out whether cruelty was condoned by the petitioning spouse and the obligation had to be discharged even in undefended cases. It should be noted further that Mr. Roy Chowdhury''s contention was that there must be pleading as regards condonation and in the instant case, condonation was not pleaded by the respondent in her written statement. We are unable to accept the contentions of Mr. Roy Chowdhury that although condonation was not pleaded, the Court cannot decide such question.
26. In Dastane v. Dastane case (Supra), the Hon''ble Supreme Court observed that: "Before us, the question of condonation was argued by both the sides. It is urged on behalf of the appellant that there is no evidence of condonation while the argument of the respondent is that condonation is implicit in the act of cohabitation and is proved by the fact that on February 27, 1961 when the spouses parted, the respondent was about 3 months pregnant. Even though condonation was not pleaded as a defence by the respondent, it is our duty, in view of the provisions of Section 23 (1)(b), to find out whether the cruelty was condoned by the appellant. That section casts an obligation on the court to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief prayed for can be decreed only if we are satisfied "but not otherwise", that the petitioner has not in any manner condoned the cruelty. It is, of course, necessary that there should be evidence on the record of the case to show that the appellant had condoned the cruelty". The Supreme Court in this said authoritative announcement in Dastane v. Dastane (Supra), analysed the contents of the concept of the condonation which reads as "condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore two things; forgiveness and restoration. The evidence of condonation in this case was, in our opinion strong and satisfactory. But that evidence does not consist in the mere fact that the spouses continued to share a common home during or for some time after the spell of cruelty, which, generally, does not consist of a single, isolated act, but consists in most cases, of a series of acts spread over a period of time. Law does not require that at the first appearance of a cruel act, the other spouse must leave the matrimonial home lest the matrimonial intercourse be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the benign purpose of marriage laws. It has also been observed that condonation of matrimonial offence is not to be linked to a full Presidential pardon under Article 7.2 of the Constitution which, once granted wipes out the guilt beyond the possibility of revival. Condonation is always subject to the implied condition that the offending spouse will not commit a fresh matrimonial offence, either of the same variety as the one condoned or of any other variety.
No matrimonial offence is erased by condonation. It is obscured but not obliterated". Since the condition of forgiveness is that no further matrimonial offence shall occur, it is not necessary that the fresh offence should be ejusdem generis with the original offence. Condoned cruelty can therefore be revived, say, by desertion of adultery.
In the said case of Dastane v. Dastate (Supra) it has also been held "Condonation" u/s 23(1)(b) therefore means conditional forgiveness, the implied condition being that no further matrimonial offence shall be committed. But the conduct of the respondent after condonation cannot be viewed apart from the conduct of the appellant after condonation. Condonation is conditional forgiveness but the grant of such forgiveness does hot give to the condoning spouse a charter to malign the other spouse. If this were so, the condoned spouse, would be required mutually to submit to the cruelty of the other spouse without relief or remedy. Condonation of matrimonial offence, we also feel does not mean mere forgiveness. Forgiveness is condonation when it results in restoring offending party in the former position. Condonation consists of factum of reinstatement and of animus remittendi. The petitioiner and the respondent continued to live in the same quarter and the respondent is reinstated in her former position, is indeed in evidence, from which reconciliation can be inferred. The petitioner obtained an undertaking from the elder brother of the respondent on 15th October 1978 and thereafter, the wife at the instance of the petitioner returned to the matrimonial home and thereby the petitioner condoned the alleged matrimonial offence committed by the respondent. It should be noted here that the petitioner had the full knowledge of the respondent''s offences as alleged. Condonation is also a word of technical import, which means and implies a conditional waiver of the right of the injured spouse to take kmatimonial proceedings. In essence, condonation is reconciliation. The intention to remit the wrong can be gathered from the attending circumstances. To constitute condonation, there must be two things - forgiveness and restoration. Condonation has been defined to be forgiveness either express or implied by a husband of the wife or by a wife of the husband. It is however, something more than forgiveness in that, there must be resumption or continuation of matrimonial status or restoration of matrimonial consortium. Ordinarily, as a general rule, condonation of matrimonial offence deprives the condoning spouse, of the right thereafter, seeking relief under them for the condonation of offence. We accept the contentions of Mr. Roy that the condonation of the matrimonial Offence is patently evidenced by reason of the fact that the petitioner was present although out during the delivery of the child and allowed his mother-in-law to stay with him during the period of confinement. Mr. Roy was also justified in contending that the petitioner after accepting the undertaking from the elder brother of the respondent, brought about the reinstatement of the respondent in her matrimonial home. According to him no case has been made out about revival of the matrimonial offence nor the story of contaminated milk can be accepted in the absence of medical evidence or evidence of any disinterested witnesses. We are, therefore of the view that the petitioner failed to disprove condonation nor did he prove revival of matrimonial offence, and the contentions of Mr. Roy Chowdhury were wholly untenable in this regard and we reject them. While accepting the contentions of Mr. Roy, we are of the view that the letter addressed to the petitioner-husband by the respondent was a clear proof of the intention of the respondent to obtain condonation of the petitioner and after receipt of the said letter of the respondent, coupled with the furnishing of an undertaking by the elder brother of the respondent, the respondent was allowed to come back to the matrimonial home The aforesaid act of the petitioner cannot be confined only to mere forgiveness, but it also demonstrates the factual restoration. Mr. Roy was also justified in his contention that no untoward incident of matrimonial offence was alleged to have been committed nor any evidence was adduced for the purpose of proving the revival of the matrimonial offence. We cannot shut our eyes also to the contents and import of the letter of the elder brother being exhibit A(1). The said letter describes the poverty and economic distress, worries and anxieties that plagued the respondent''s family. The said letter is to be viewed in the backdrop of the principles decided in the case of Dipali Das v. Gorachand Das (Supra), decided by this Court. From the letter or the undertakinq as aforesaid, it would be clear that the petitioner-husband, taking advantage of his economic position, compelled the elder brother of the respondent to give undertaking in writing, for good behavior of his sister. In our opinion, although a certain mutuality finds a necessary place in the totality of the circumstances making up condonation, the essential characteristic of condonation is the forgiveness of, and reinstatement, by, the spouse who has suffered the matrimonial offence. The respondent, in our view was, accorded condonation. The word ''condone'' as ordinarily used, means to overlook an offence by acting as if it had not been committed. Not only is this the ordinary modern meaning of the English verb, but it is the only relevant sense of the Latin term ''condonus''. The word ''condone'' was never, we think, and is not now, used in the purely subjective sense, which the word ''forgive'' is clearly capable of bearing. The pages 781-82, 856-859 and 861 of Mulla''s Hindu Law as referred by the learned counsel for the parties contain illuminative and comprehensive dissertion on the subject of cruelty, condonation and revival of matrimonial offence and it is very difficult to define in a very short compass, the true meaning of the word ''Cruelty'' in the matrimonial background. The liberal approach should be that the cruelty must be of the type, which must impel the conscience of the Court to reach the conclusion that the matrimonial relations between the parties suffered intolerable set-back and irretrievable break down to such a degree or extent by reason of the conduct of the spouses, that it has become mentally and physically impossible for the spouses to live together any further. We find that the conduct of the petitioner demonstrates that condonation, as found by the learned Court below of the matrimonial offence, has been proved. We find that the said condonation in fact and effect was neither erased nor blotted out by their revival of any matrimonial offence and tested on the touchstone of the probabilities, the petitioner''s version regarding the cruelty and the condonation, does not inspite any confidence. In view of our finding indicated above, we hold that the learned Court below was justified in dismissing the suit. We are of the view that no case has been made out for interference with the findings of the learned Court below and accordingly, we dismiss the appeal and affirm the judgment of the learned Court below. There will be no order as to costs.
M.N. Roy, J.
I agree.
