JUDGMENT
B.J. Wadia, J.
1. This is a suit in which the husband sues his wife for judicial separation from her. It is the first case of its kind under the provisions of the new Parsi Marriage and Divorce Act of 1936, for under Section 31 of the old Act of 1865 it was the wife alone who could sue the husband for judicial separation on the ground of his cruelty or personal violence towards her rendering it improper for them to live together, or on the ground that the husband’s conduct afforded reasonable ground for apprehending danger to life or serious personal injury, or if the husband openly brought a prostitute or allowed her to remain in the place of abode of his wife. Under Section 34, however, of the new Act any married person may sue for judicial separation on one of four grounds, namely (a) any of the grounds for which such person could have filed a suit for divorce, or (b) on the ground that the defendant had been guilty of such cruelty to him or her or to their children as to render it in the judgment of the Court improper to compel the husband and wife to live together, or (c) had used such personal violence as to render it improper for them to live together, or (d) had behaved in such a way as to render it improper for them to live together. In this partis cular case the husband sues on the ground that his wife has been guilty of cruelty to him, and also on the ground that she has behaved during their married lives in such a way as to render it improper in the judgment of the Court to compel him to live with her.
2. 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. That, gentlemen, was laid down as far back as 1790 in the famous case of Evans v. Evans (1790) 1 Haggard’s Consistory Rep. 35. The discussion is summarized at pp. 37 to 40. At p. 38 it is stated that
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 cruelty against which the law can relieve.
In order that there may be legal cruelty there must be actual violence of such a character as to endanger personal health, bodily as well as mental, or safety; or there must be a reasonable. apprehension of it. At p. 40 it is pointed out that the apprehension must be reasonable:
…it must not be an apprehension arising merely from an exquisite and diseased sensibility of mind. Petty vexations applied’ to such a constitution of mind may certainly in time wear out the animal machine, but still they are not cases of legal relief people must relieve themselves as well as they can by prudent resistance by calling in the succours of religion and the consolations of friends; but the aid of Courts is not to be resorted to in such cases with any effect.
This is the only safe and practical criterion of cruelty which guides the English Courts, and as Lord Stowell pointed out in Evans v. Evans, “the Court has never been; driven off this ground.” The case has been cited with approval by the Privy Council in Moonshee Buzlaor Ruheem v. Shumsoon-mssa Begum (1867) 11 M.I.A. 551, 612. It has also been held, gentlemen, that cruelty in the legal sense need not necessarily be physical violence either to the husband or the wife. It may even consist in a course of harsh conduct pursued by the husband towards his wife and/or their children, and also vice versa by the wife. I may also point out to you that 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.
3. The more important ground, however, on which the plaintiff seeks relief is the ground that his wife has behaved towards him in such a way as to render it in your opinion improper to compel him to live with her. It is not merely improper behaviour that constitutes the ground for judicial separation; it is much wider than that; it must be a behaviour of such a nature as to make it improper for husband and wife to live together in future. I may point out to you, gentlemen, that there is no definition nor description of what would amount to such behaviour, and there cannot be one. The safest criterion in my opinion is to consider the course of the conduct of the. parties towards each other during their married lives and to consider whether the plaintiff has shown just and lawful grounds not only for living separately from his wife, but for asking for a decree of the Court for judicial separation. There is no doubt that the parties have not been living for a long time happily together as husband and wife, and that there is considerable disagreement between them which has been the source of constant quarrels and bickerings and general unpleasantness. But it is not enough for you, gentlemen, to say merely that it will not be possible for the parties to live happily together hereafter. It requires two to make a quarrel generally, and it is not always easy to adjudicate where the blame lies. But you must be satisfied that the causes of disagreement between husband and wife are “grave and weighty, and such as she an absolute [that is, moral] impossibility that the duties of the married life can be discharged ” (p. 37). In determining what is moral impossibility, you, gentlemen, as pointed out by Mr. Justice Fulton in Hirabai v. Dkanjibhai (1900) 2 Bom. L.R. 845, 852 will take into consideration the feelings and customs of the Parsi community, and bear in mind the grave responsibility that rests on you not to permit the relaxation of the marriage-bond further than the conscience of the community will approve. It is my duty, and it will be your duty, always to uphold the sanctity of married life, but to see at the same time that the provisions of the law are not so narrowed down in their application as to lead to “barbarous results” and to compel husband and wife to live together, when living together as such has become morally impossible.
4. You and you alone are the sole Judges of fact, and it is for you to consider the evidence led on both sides as a whole and substantially without paying undue importance to minor details and little inconsistencies, and to consider whether in this particular case the course of the wife’s conduct towards the husband has been such that it is no longer morally possible for him to discharge the duty of married life towards her, or, to use the words of the section itself, that it has become improper in your opinion to compel him to live with her any longer as her husband.
5. [The delegates found in favour of the defendant. His Lordship accepted the finding and dismissed the suit with costs.Eds.]
