JUDGMENT
R.D. Shukla, J.
1. This appeal is directed against the judgment and decree dated 22-1-1990 passed by Distt. Judge, Damoh in Civil Suit No. 22-A/88 whereby the petitioner’s (appellant/husband) petition for divorce has been dismissed on the ground of condonation.
2. The admitted facts of the case are that the petitioner Devidas was married to Gyanwati alias Sheela Rani somewhere in 1988. They were living together in the paternal house of the petitioner where his other relations (father, mother and brother) were also living. There was some dispute. A Panchyat was held. Thereafter petitioner and respondent separated from the joint family and lived together for about 7-8 months. During her residence as such the respondent was taken to her father’s house by her father. She is living with her father till date.
3. The petitioner filed a petition for divorce under Section 13 of the Hindu Marriage Act on 13-12-1988 with the allegations that while residing with him in his paternal house respondent tried to commit suicide twice. The respondent did not like to live along with the joint family. As such she was pressurizing him (husband) to ask for partition and wanted separate residence. Petitioner declined to do so and therefore she tried to commit suicide as stated above. It has further been submitted that this amounts to cruelty. The respondent is likely to commit suicide on some pretext and that may cause harassment to the petitioner and further a risk of prosecution as well.
4. Respondent denied the allegations and contended that she was being forced to bring dowery from her parents. She was harassed by the petitioner and his relations. She was beaten by her mother-in-law and therefore she requested for partition and separate
residence. Respondent denied to commit suicide and prayed for dismissal of petition for divorce.
5. Learned District Judge after trial has dismissed the petition on the ground that the petitioner has condoned the alleged cruelty and therefore is not entitled for decree of divorce. Hence this appeal.
6. Counsel for the appellant has submitted that there was no repentance on the part of the respondent. She has never expressed regret in her conduct. In order to avoid controversy petitioner agreed to live separately along with the respondent and therefore merely because they lived together for few months would not amount to condonation. It has also been submitted that the facts of condonation has not been pleaded by the respondent and therefore the same cannot be considered.
7. As against it counsel for the respondent has submitted that firstly condonation was not required to be pleaded. Secondly if certain facts leading to condonation have been admitted by the petitioner himself then it requires no further pleading and proof.
8. For proper appreciation of condonation of the parties the relevant provisions of Section 23 is reproduced below :–
“23. Decree in proceedings — (1) In any proceedings under this Act, whether defended or not, if the court is satisfied that –
(a)………………………………..
(b) Where the ground of the petition is the ground specified 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 petitioner is cruelty the petitioner has not in any manner condoned the cruelty.”
9. From the plain reading of Section 23 of the Act it is clear that if a party wants decree of divorce on the ground of cruelty, he is not only required to prove the facts of cruelty but is further required to show that he has not in any way condoned the alleged cruelty of the respondent.
10. The petitioner appearing as P.W.5 in the case has admitted in the later part of para 2 of his statement that there was a Panchayat in the presence of the father of the wife. Panchas advised them (petitioner and respondent) to separate from the joint family and live as such. They lived as such for about 7-8 months. Though it has been stated in the last portion of para 2 of his statement that the respondent thereafter asked him to live along with her parents or in that village which he declined and therefore the respondent went along with his father. But this fact has not been pleaded as a further ground of cruelty.
11. It has therefore rightly been accepted by the learned trial Court that the petitioner and respondent after the alleged incident of attempt to commit suicide, lived together for about 7-8 months. There is nothing to disturb that finding. If the parties (husband and wife) live together under the same roof for a period of 7-8 months, it would be presumed that they were leading a normal conjugal life and that they maintained sexual relations. Under these circumstances it is for the party who wants the court to believe that despite living as such they did not have any sexual relations. It is for him to plead and prove the fact by cogent evidence. I do not find any pleading and proof to that effect.
12. The following observations in Dastane v. Dastane, AIR 1975 SC 1534, is relevant for this case (at page 1545):–
“Even though condonation is not pleaded as defence by the respondent it is Court’s duty, in view of the provisions of Section 23, to find 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 the court is 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.
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 is as strong and satisfactory as the evidence of cruelty.”
In this case since the spouse lived together for 7-8 months, it can very easily be assumed that the husband has forgiven the wife for her misdeed and there was restoration of old position of conjugal relations.
13. Counsel for the appellant referred a case, Shantabai v. Sukhandan, 1962 MPLJ 617, and submitted that this type of grim reconciliation has to be rejected. I am in agreement with the preposition of law therein. That was a case where the husband tried to take advantage of his own misdeed and wrong on the ground of condonation of cruelty. In that case his wife was physically tortured and on pursuation of relations she lived along with her husband. Thus, it must have caused a reasonable apprehension in her mind that living with the husband may be dangerous to her life. It was under these circumstances that living together was not taken to be sufficient for reconciliation.
14. Counsel for the appellant then submitted a case reported in Dina Dinshaw v. Dinshaw Ardeshir, AIR 1970 Bom 341, in support of his contention. That was a case under Parsi Marriage and Divorce Act. However, in that case also earlier suit for judicial separation was withdrawn on pursuation of friends and therefore it was held that divorce on the same ground is not barred and the same was not accepted to have the effect of reconciliation and condonation.
15. In the opinion of this court, therefore, it has rightly been held by the Distt. Judge that the petitioner has condoned the cruelty caused by his wife. As such the petition is not entitled for decree of divorce.
16. Consequently the appeal is dismissed with costs. Counsel fee Rs. 200/- if certified.