JUDGMENT
T. Ramabhadran, J.C.
1. These two appeals can be conveniently disposed of by means of one judgment. Misc. First Appeal 22 of 59 arises out of a petition under Section 10 of the Hindu Marriage Act, 1955, instituted by Mt. Padma against her husband, Parma Ram, for judicial separation (case No. 74 instituted in the Court of the Senior Subordinate Judge, Mandi, exercising powers of a District Court under the above Act on 27-5-1958). Misc. First Appeal No. 23 of 59 arises out of a petition under Section 9 (case No. 63 for restitution of conjugal rights) instituted by Parma Ram against Mt. Padma in the same Court on 28-4-1958. The learned Judge granted Parma Ram’s petition, but dismissed that of Mt. Padma, by means of his judgments D/-6-2-1959. Aggrieved by these decisions, Mt. Padma has come up in appeal under Section 28 of the Act in both cases. Mt. Padma was married to Parma Ram some years ago and there is a child of the marriage. The marriage was what is known as an exchange marriage, i. e., while Mt. Padma was married to Parma Ram, Parma Ram’s sister, Mt. Vidya was married to Saran, brother of Mt. Padma.
Mt. Padma’s case was that Mt. Vidya had contracted liaison with Nokhu and declined to live with her husband, Saran. Parma Ram put pressure upon Mt. Padma to persuade her brother to divorce Mt. Vidya so that she (Mt. Vidya) could settle down permanently with Nokhu. Saran, however, did not agree to follow such a course. Consequently, Parma Ram started treating Mt. Padma with habitual cruelty. He went to the extent of beating her and turning her out of his house. On these premises, Mt. Padma claimed that she had reasonable apprehension in her mind that it would be harmful and injurious for her to live with Parma Ram. Therefore, she claimed a decree for judicial separation. In addition, she sought maintenance pendente lite and reasonable expenses of proceedings under Section 24.
2. The allegations of cruelty were denied by Parma Ram. According to him, the petition for judicial separation was by way of reply to his earlier application for restitution of conjugal rights under Section 9. According to Parma Ram, Mt. Padma had withdrawn herself from his society without reasonable excuse. Therefore, he sought a decree for restitution of conjugal rights against Mt. Padma under Section 9.
3. The two petitions were separately tried by the learned Senior Subordinate Judge, although they were disposed of simultaneously. Evidence in the two eases was recorded separately, although some witnesses were common.
4. It is obvious that the result of the two petitions would depend upon the question as to whether Parma Ram had been guilty of treating Mt. Padma with such cruelty as to cause a reasonable apprehension in her mind that it would be harmful or injurious to her to live with her husband. If such cruelty is established, Mt. Padma would be entitled to a decree for judicial separation. As a necessary corollary, it would be reasonable excuse for Mt. Padma to withdraw from the society of her husband and the latter could not claim restitution of conjugal rights under Section 9. The learned trial Judge held that Mt. Padma had failed to prove cruelty on the part of her husband and, accordingly, dismissed her petition for judicial separation and granted Parma Ram’s petition for restitution of conjugal rights.
5. Arguments of the learned counsel for the parties were heard at considerable length on the 2nd instant. Judgment was reserved till today. For reasons to be stated shortly, I have come to the conclusion that the charges of cruelty, brought by Mt. Padma against her husband, stand substantiated and accordingly both the appeals should be allowed.
6. The following instances of cruelty were cited by Mt Padma: (A) In the month of Magh, 2014, ber brother, Saran, accompanied by three persons, named Durga Datt, Thakur Singh and Kaltu, had gone to Parma Ram’s house with a view to take Mt. Vidya, (wife of Saran), to his house. In the presence of the persons mentioned above, Parma Ram suggested to Saran that he should divorce Mt. Vidya. Mt. Padma also requested Saran to divorce Mt. Vidya on the ground that Parma Ram was treating her (Mt. Padma) cruelly on this account. Hearing these words, Parma Ram lost his temper and gave a few slaps on Mt. Padma’s face with the result that her nose began to bleed. The spectators patched up the quarrel and washed the blood-stains from Mt. Padma’s nose.
The Court below has not relied upon this incident on the ground that it did not find a place in Mt. Padma’s written-statement in case No. 63 of 58. I agree with the contention of the learned counsel for the appellant that it was not necessary tor Mt. Padma to enumerate in her written-statement details of the evidence to be produced by her later on at the trial. In case No. 74 of 1958, the trial Court has held that the incident of Magh, 2014 (when Mt. Padma was beaten by Parma Ram resulting in injuries to her nose) was condoned by her subsequent
conduct in continuing to live with Parma Ram. Learned counsel for the appellant contended that condonation, if any, by Mt. Padma was conditional upon the future good behaviour of Parma Ram and if the offences were repeated, the right to make the condoned offences a ground for divorce would revive. Reliance was placed upon Morena v. Morena, ILR 47 Cal 1068, where a Division Bench of that High Court remarked that:
“Condonation of past matrimonial offences is impliedly conditioned upon the future good behaviour o the offending spouse, so that if after condonation the offences are repeated, the right to make the condoned offences, a ground for divorce, revives.”
As already pointed out, it was not necessary to refer to the incident of Magh 2014 in Mt. Padma’s written-statement. I see no reason to disbelieve the testimony of Durga Datt, Thakur Singh (and of Kaltu in case No. 74 of 1958) regarding this incident). In my opinion, this does constitute one incident of cruelty.
7. (B) We then come to the incident of Chet 201.5. From the statements of Mt. Padma, her brother, Saran, Phandi cleaner and (in the case No. 74 of 1958 of Dila Ram and Dr. Om Parkash, in charge Mobile dispensary), it is amply proved that at mile 11 on the Mandi-Kulu road, near Pandoh, Mt. Padma was dragged and beaten by Parma Ram, who was assisted, among others, by his brother and mother. On behalf of Parma Ram it was suggested that Mt. Padma had left her husband’s house without his permission and during his absence.
It was, therefore, pleaded that Parma Ram went ia search of her and finding her on the road near Pandoh, was merely persuading her to return. From the statements of Phandi, cleaner (and Dila Ram and Dr. Om Parkash in case No. 74 of 58) it is evident that something more than persuasion had been used by Parma Ram, i. e. Mt. Padma was dragged and slapped. I am unable to agree with the trial Court that this incident cannot be deemed to be an act of such cruelty as could cause a reasonable apprehension in the mind of Mt. Padma that it would be injurious for her to go back to her husband’s house.
8. Learned counsel for the appellant submitted that the status of women in general has undergone a great change for the better during the last 15 years and the same has been recognized in recent legislation, e. g. Hindu Succession Act, Hindu Marriage Act. He invited my attention to the following authorities:
(i) Pancho v. Ram Prasad, AIR 1956 All 41, wherein a learned Judge of that High Court, while dealing with a case under Section 488, Cr. P. C., remarked that:
“A husband, who is prone to make adverse statements against the chastity of wife, to meet the exigencies of the situation, cannot be said to be a husband, who has taken a kindly attitude towards the wife. Conception of legal cruelty undergoes
changes, according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions this feature has obtained legislative recognition that a second marriage is a sufficient ground for separate residence and separate maintenance.”
“Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous illtreatment. cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which may undermine the health of a wife. In such oases, it would not be unreasonable to hold that the wife may legitimately apprehend, that if she goes to her husband there will be a repetition of such conduct which may result in a complete breakdown of her health.”
“Where evidence of physical violence is not per se sufficient to warrant a finding of cruelty, the Court is bound to take into consideration the general conduct of the husband towards the wife and if this is of a character, tending to degrade the wife and subjecting her to a course of intense indignity injurious to her health, the Court is at liberty to pronounce the cruelty proved.”
(ii) Soosannamma Kurien v. Varghese Abraham, AIR 1957 Trav-Co., 277. There, dealing with a case under the Divorce Act, a Division Bench of that High Court had occasion to observe that:
“It is not correct to say that) under the Divorce Act, 1869, only physical cruelty will be a defence on an action for restitution of conjugal rights. The word cruelty as used in S. 22 of the Act is not restricted to physical cruelty.”
“Legal cruelty is still the proper defence, but the progressive tendency of law and the requirements to modern civilized life have left mere physical violence in the background. Thus, in an application for restitution of conjugal rights by the husband under Section 22 of the Act the wife may express her fear that there will be the exercise of tyranny by the husband, subjecting her to constant insults and abuses and accusation of adulterous conduct. This would make a state of married life impossible to be endured and cause a very unhappy and miserable state of existence. This is cruelty of a worse kind than that of physical violence.”
(iii) Mst. Gurdev Kaur v. Sarwan Singh, AIR 1959 Punj 162, where a learned Judge of that High Court indicated that:
“The theory that in order to constitute cruelty there must be physical acts of violence was abandoned long ago and is now ancient history.”
(iv) Sarah Abraham v. Pyli Abraham, AIR 1959 Kerala 75. There, dealing with a case under the Divorce Act, 1869, a Division Bench of that High Court pointed out that:
“The legal conception of cruelty, which is not defined by statute, is generally described as conduct
of such a character as to have caused danger to life, limb, or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger.”
“The general rule in all questions of cruelty is that the whole matrimonial relations must be considered and that rule is of special value when the cruelty consists not of violent acts, but of injurious reproaches, complaints, accusations or taunts. Before coming to a conclusion the Judge must consider the impact of the personality and conduct of one spouse on the mind of the other, and all incidents and quarrels between the spouses must be weighed from that point of view. In determining what constitutes cruelty regard must be had to the circumstances of each particular case, keeping always in view the physical and mental condition of the parties, and their character and social status.”
“Though the Indian Courts originally construed ‘legal cruelty’ in the strict sense as above, there has come about a gradual change and the tendency has been in favour of the view that any conduct of the husband which causes disgrace to the wife or subjects her to a course of annoyance and indignity amounts to legal cruelty. The harm apprehended may be mental suffering as distinct from bodily harm, for pain of mind may be even more severe than bodily pain and a husband disposed to evil, may create more misery in a sensitive and affectionate wife by a course of conduct addressed only to the mind than if, in fits of anger, he were to inflict occasional blows upon her person.”
9. Learned counsel for Parma Ram, oa the other hand, cited G, C. Foster v. A. B. Foster, AIR 1928 Oudh 114, where Pullan, J., observed that:
“Cruelty may be defined as conduct of such a character as to have caused danger to life, limb or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger. In order to establish a case of cruelty against her husband a wife must prove more than isolated acts of violence. The degree of violence varies in accordance with the status of the parties but merely proving certain isolated assaults, all of which arose on the spur of the moment and on some real or fancied provocation is not enough.”
As pointed out earlier, the whole conception of cruelty has undergone a vast change during the last 30 years. Cruelty does not mean physical cruelty, i. e. cruelty caused by physical acts of violence.
10. Judged by the above criterion, it seems to me that the charge of cruelty was satisfactorily brought home by Mt. Padma to Parma Ram. Mt. Padma’s refusal or inability to persuade her brother, Saran, to divorce Mt. Vidya, in favour of Nokhu, appears to have been the root cause of the trouble.
11. The Court below, in my opinion, has attached undue importance to the unwillingness of Saran to keep Mt Vidya at his house. Saran’s explanation was that) Mt. Vidya had contracted a liaison with Nokhu and, therefore, he could not be blamed if he was not prepared to keep Mt. Vidya with him. Under the circumstances, Mt. Vidya’s offer or expression of willingness to live with Saran cannot rebut the positive evidence of cruelty adduced by Mt. Padma.
12. As regards the evidence produced by
Parma Ram to the effect that he never ill-treated Mt. Padma, I would say that such evidence is of a negative character and cannot rebut the positive evidence of mal-treatment adduced by Mt. Padma and referred to earlier in this judgment.
13. To sum up, therefore, I am satisfied that Mt. Padma was justified in apprehending that it would be harmful and injurious for her to live with Parma Ram. It, therefore, follows that she was entitled to a decree for judicial separation under Section 10(1)(b) of the Act and as a necessary corollary it follows that Parma Ram’s petition for restitution of conjugal rights under Section 9 should fail.
ORDER
Misc. First Appeal No. 22 of 59.
14. I allow this appeal, set aside the decision of the trial Court and grant Mt. Padma a decree for judicial separations against Parma Ram under Section 10(1)(b) of the Hindu Marriage Act, 1955. She will get her costs, here and in the Court below, from the respondent
Misc. First Appeal No. 23 of 59.
15. I allow this appeal and set aside the decree for restitution of conjugal rights granted by the trial Court, i. e., Parma Ram’s petition under Section 9(1) of the Act is dismissed. The appellant will get her costs here, and in the Court below, from the respondent.
16. This judgment will be read in both the
appeals, i. e., Misc. First Appeals 22 and 23 of 1959.
Appeals allowed.