Narayan Ganesh Dastane vs Sucheta Narayan Dastane on 19 March, 1975

           PETITIONER:
NARAYAN GANESH DASTANE

	Vs.

RESPONDENT:
SUCHETA NARAYAN DASTANE

DATE OF JUDGMENT19/03/1975

BENCH:
CHANDRACHUD, Y.V.
BENCH:
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
UNTWALIA, N.L.

CITATION:
 1975 AIR 1534		  1975 SCR  (3) 967
 1975 SCC  (2) 326
 CITATOR INFO :
 RF	    1988 SC 121	 (7,10)


ACT:
Hindu	   Marriage	 Act--Section	   10(1)(b)	 and
23(1)(a)(b)--Meaning   of   cruelty--Burden  of	  proof	  in
matrimonial   matters--Whether	beyond	reasonable   doubt--
Condonation--of cruelty--Whether sexual intercourse  amounts
to condonation--Whether condonation is	conditional--Revival
of cruelty.
Code of Civil Procedure--Section 100 and 103--Powers of High
Court in second appeal.
Evidence Act--Section 3--Proof, meaning of.



HEADNOTE:
The  appellant	husband filed a petition  for  annulment  of
marriage on the round of fraud, for divorce on the ground of
unsoundness  of	 mind  and for judicial	 separation  on	 the
ground	of  cruelty.  The appellant and	 respondent  possess
high  educational  qualifications and they were	 married  in
1956.	Two children were born of the marriage one  in	1957
and the other in 1959.
The  Trial  Court  rejected  the  contention  of  fraud	 and
unsoundness  of mind.  It, however, held the wife guilty  of
cruelty	 and  on that ground passed a  decree  for  judicial
separation.  Both sides went in appeal to the District Court
which dismissed the husband's appeal and allowed the wife's.
The  husband then filed a Second Appeal in the	High  Court.
The High Court dismissed that appeal.
On appeal to this Court,
HELD  (i)  Normally  this Court would  not  have  gone	into
evidence especially as the High Court itself could not	have
gone into the evidence in second appeal.  Section 100 of the
C.P.C.	restricts  the	jurisdiction of the  High  Court  in
second	appeal to questions of law or to substantial  errors
or  defects  in	 the procedure	which  might  possibly	have
produced  error or defect in the decision of the  case	upon
merits.	 The High Court came to the conclusion-that both the
courts	below had failed to apply the correct principles  of
law  in determining the issue of cruelty.   Accordingly	 the
High Court proceeded to consider evidence for itself.  Under
s. 103 C.P.C. the High Court can determine any issue of fact
if the evidence on the record is sufficient but if the	High
Court takes upon itself the duty of determining an issue  of
fact, its powers to appreciate evidence would be subject  to
the  same restraining conditions to which the power  of	 any
court  of facts is ordinarily subject.	The limits  of	that
power  are  not wider for the reason that  the	evidence  is
being appreciated by the High Court and not by the  District
Court.	While appreciating evidence, inferences may and have
to be drawn but courts of facts have to remind themselves of
the  line  that	 divides  an  inference	 from  guess   work.
Normally  this Court would have remanded the matter  to	 the
High  Court  for a fresh consideration of the  evidence	 but
since  the proceedings were pending for 13 years  the  Court
itself went into the evidence. [973 F-974 H]
(ii) The burden of proof in a matrimonial petition-must	 lie
on the petitioner because ordinarily the burden lies on	 the
party  which affirms a fact, not on the party  which  denied
it.  This principle accords with commonsense, as it is	much
easier to prove a positive than a negative.  The  petitioner
must, therefore. prove that the respondents had treated	 him
with cruelty within; the meaning of r. 10(1)(b) of the	Act.
But the High Court was wrong in holding that the  petitioner
must  prove his case beyond a reasonable doubt.	 The  normal
rule which governs civil proceedings is that a fact is	said
to  be	established  if it is  proved  by  preponderance  of
probabilities.	Under s. 3 of the Evidence Act a act is said
to be. proved when the court either believes it to exist  or
if  considers its existence so probable that a	prudent	 man
ought,	in  the circumstances, to act upon  the	 supposition
that  it exists.  The first step in this process to fix	 the
probabilities. the second to weigh them.  The impossible  is
weeded
968
out  in	 the  first stage, the	improbable  in	the  second.
Within the wide range, of probabilities the Court has  often
a  difficult  choice  to make but it is	 this  choice  which
ultimately    determines   where   the	 preponderance	  of
probabilities  lies.   Important issues like the  status  of
parties demand closer scrutiny than those like the loan on a
promissory note.  Proof beyond reasonable doubt is proof  by
a higher standard which generally governs criminal trials or
trials	involving  enquiries into issues  of  quasi-criminal
nature.	 It is wrong to import such considerations in trials
of  a  purely civil nature.  Neither s.10 nor s. 23  of	 the
Hindu  Marriage Act requires that the petitioner must  prove
his case beyond reasonable doubt S. 23 confers on the  court
the power to pass a decree if it is satisfied on the matters
mentioned   in	 Clauses  (a)  to  (e)	of   that   Section.
Considering  that proceedings under the Act are	 essentially
of  a civil nature the word 'satisfied' must mean  satisfied
on a preponderance of probabilities and not satisfied beyond
a  reasonable  doubt.	The  society  has  a  stake  in	 the
institution of marriage and, therefore, the erring spouse is
treated	 not  as a mere defaulter but as an  offender.	 But
this social philosophy, though it may have a bearing on	 the
need  to have the clearest proof of an allegation before  it
is accepted as a ground for- the dissolution of marriage, it
has  no	 bearing  on the standard of  proof  in	 matrimonial
cases.	 In  England, a view was at one time  taken  that  a
petitioner  in a matrimonial petition must establish his  or
her case beyond a reasonable doubt but the House of Lords in
Blyth  v. Blyth has held that the grounds of divorce or	 the
bars  to  the divorce May be proved by	a  preponderance  of
probability.   The High Court of Australia has also taken  a
similar view. [975 A-976 B]
(iii) On the question of condonation of cruelty, a  specific
provision  of  a specific enactment has to  be	interpreted,
namely	s.  10(1) (b).	The enquiry, therefore,	 has  to  be
whether	 the  conduct  charged	as  cruelty  is	 of  such  a
character  as  to  cause in the mind  of  the  petitioner  a
reasonable apprehension that it will be harmful or injurious
for  him to live with the respondent.  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 or  as
to give rise to a reasonable apprehension of such a  danger.
It  is	risky  to rely on English decisions  in	 this  field
although  awareness  of foreign decisions can  be  a  useful
guide  in  interpreting our laws.  The apprehension  of	 the
petitioner that it will be harmful or injurious to live with
the other party has to be reasonable.  It is, however, wrong
to  import the concept of a reasonable man as known  to	 the
law  of negligence for judging matrimonial  relations.	 The
question  is  not whether the conduct would be	cruel  to  a
reasonable   person  or	 a  person  of	average	 or   normal
sensibilities  but whether it would have that effect on	 the
aggrieved spouse.  That which may be cruel to one person may
be  laughed off by another and what may not be cruel  to  an
individual  under  one set of circumstances may	 be  extreme
cruelty	 under another set of circumstances.  The Court	 has
to deal not with an ideal husband and an ideal wife but with
the  particular man and woman before it.  The only rider  is
that  of s. 23(1)(a) of the Act that the relief	 prayed	 for
can  be	 decreed  only	if  the	 petitioner  is	 not  taking
advantage of his own wrong. [977 D-G; 978 C-F; 979 A]
(iv) Acts like the tearing of the Mangal Sutra, locking	 out
the  husband  when  he is due to  arrive  from	the  office,
rubbing	 of chilly powder on the tongue of an infant  child,
beating	 a  child  mercilessly	while  in  high	 fever	 and
switching  on the light at night and sitting by the  bedside
of  the	 husband merely to nag him are acts  which  tend  to
destroy	 the legitimate ends and objects of matrimony.	 The
conduct of wile amounts to cruelty within the meaning of  s.
10(1) (b) of the Act.  The threat that she would put an	 end
to her own life or that she will set the house on fire,	 the
threat that she will make the husband lose his job and	have
the matter published in newspapers and the persistent abuses
and insults hurled at the husband and his parents are all of
so  grave an order as to 'imperil the appellant's  sense  of
personal  safety,  mental happiness,  job  satisfaction	 and
reputation. [985 B-E]
(v)  In	 any proceeding under the Act, whether	defended  or
not,  the  relief  prayed for can be  decreed  only  if	 the
petitioner  has not condoned the cruelty.  The wife did	 not
take  up the plea of condonation in her	 written  statement.
The Trial Court did not frame any issue of condonation.	 The
District Court
969
did not address itself on the question of condonation  since
it  did not find the conduct of the wife to be	cruel.	 The
High  Court held that the conduct of the wife was not  cruel
and  in	 any  case it was condoned.  S.	 23  (1)  (b)  casts
obligation  on	the  court  to	consider  the  question	  of
condonation.	Condonation   means   forgiveness   of	 the
matrimonial  offence and restoration of spouses to the	same
position  as  he  or she  occupied  before  the	 matrimonial
offence	 was committed.	 Cruelty generally does not  consist
of  a single isolated act.  It 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
continued coharbitation be construed as condonation.  Such a
construction   will   hinder  reconciliation   and   thereby
frustrate the benign purpose of marriage laws.	The evidence
on condonation consists in this case in the fact that spouse
led  a	normal	sexual	life despite  the  various  acts  of
cruelty.   This	 is  not  a  case  where  the  spouse  after
separation  indulge in stray acts of sexual  intercourse  in
which  case the necessary intent to forgive and restore	 may
be  said to be lacking.	 Such stray acts may bear more	than
one  explanation  but  if during  cohabitation	the  spouses
uninfluenced by the conduct of the offending spouse, lead  a
life  of  intimacy which  characterised	 normal	 matrimonial
relationship,	the  intent  to	 forgive  and  restore	 the
offending  spouse to the original status way  reasonably  be
inferred.   There  is then no scope for imagining  that	 the
conception of the child could be the result of a single	 act
of sexual intercourse and that such an act could be a  stark
animal	act  unaccompanied by the nobler graces	 of  marital
life.	Sex  plays  an important role in  married  life	 and
cannot	be  separated  from  other  factors  which  lend  to
matrimony  a sense of fruition and  fulfilment.	  Therefore,
evidence  showing that the spouse led a normal	sexual	life
even  after serious acts of cruelty by one spouse  is  proof
that the other spouse condoned that cruelty.  Intercourse in
circumstances	as  obtained  here  would  raise  a   strong
inference    of	  condonation.	  That	 inference    stands
uncontradicted.	  the  husband	not  having  explained	 the
circumstances In which hecame to lead and live a normal
sexual life,
		 [985 G-987 B]
(vi)  But condonation of a matrimonial offence is not to  be
likened	 to a Presidential pardon 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 further	 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.   Condoned
cruelty	  can,	therefore,  be	revived.   For	revival	  of
condonation  it is not necessary that the conduct should  be
enough by itself to found a degree for judicial	 separation.
The wife in not allowing the husband access to the  children
cannot be said to have revived the earlier cruelty since the
children  were of tender age and the only person  who  could
escort	them had left or had to leave the  matrimonial	home
for  good.   The subsequent conduct of the wife	 has  to  be
assessed  in the context in which the husband behaved.	 The
husband	 persistently  accused	the  wife  of  insanity	 and
refused	 to maintain her.  In that context, the	 allegations
made  by  the wife in her letter to  the  Government  cannot
revive the original cause of action, though it is true	that
more serious the original offence the less grave need be the
subsequent act to constitute revival.
		      [987 C; 988 C-D, G-H; 991 E-H]
Held, dismissing the appeal,
That the wife was guilty of cruelty but the husband condoned
it and the subsequent conduct of the wife was not such as to
amount to revival of the original cause of action. [992 B-C]



JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2224 of
1970.

From the judgment and order dated the 19th February, 1969 of
the Bombay High Court in Second Appeal No. 480 of 1968.
V. M. Tarkunde, S. Bhandare, P. H. Parekh and Manju Jaitely,
for the appellant.

V. S. Desai, S. B. Wad and Jayashree Wad, for the
respondents.

970

The Judgment of the Court was delivered by
CHANDRACHUD, J.-This is a matrimonial dispute arising out of
a petition filed by the appellant for annulment of his
marriage with the respondent or alternatively for divorce or
for judicial separation. The annulment was sought on the-
ground of fraud, divorce on the ground of unsoundness of
mind and judicial separation on the ground of cruelty.
The spouses possess high academic qualifications and each
one claims a measure. of social respectability and cultural
sophistry. The evidence shows some traces of these. But of
this there need be no doubt,: the voluminous record which
they have collectively built up in the case contains a fair
reflection of their rancour and acrimony,
The appellant, Dr. Narayan Ganesh Dastane, passed his M.Sc.
in Agriculture from the Poona University. He was sent by
the Government of India to Australia in the Colombo Plan
Scheme. He obtained his Doctorate in Irrigation Research
from an Australian University and returned to India in
April, 1955. He worked for about 3 years as an Agricultural
Research Officer and in October, 1958 he left Poona to take
charge of a new post as an Assistant Professor of Agronomy
in the ‘Post-Graduate School, Pusa Institute, Delhi. At
present be is said to be working on a foreign assignment.
His father was a solicitor-cum lawyer practising in Poona.
The respondent, Sucheta, comes from Nagpur but she spent her
formative years mostly in Delhi. Her father was transferred
to Delhi in 1949 as an Under Secretary in the Commerce
Ministry of the Government of India and she came to Delhi
along with the rest of the family. She passed her B.Sc.
from the Delhi University in 1954 and spent a year in Japan
where her father was attached to the Indian Embassy. After
the rift in her marital relations, she obtained a Master’s
Degree in Social Work. She has done field work in Marriage
Conciliation and Juvenile Delinquency. She is at present
working in the Commerce and Industry Ministry, Delhi.
In April, 1956 her parents arranged her marriage with the
appellant. But before finalising the proposal, her father-
B. R. Abhyankarwrote two letters to the appellant’s father
saying in the first of these that the respondent “had a
little misfortune before going to Japan in that she had a
bad attack of sunstroke which affected her mental condition
for sometime”. In the second letter which followed at an
interval of two days, “cerebral malaria” was mentioned as an
additional reason of the mental affectation. The letters
stated that after a course of treatment at the Yeravada
Mental Hospital, she was cured : “you find her as she is
today”. The respondent’s father asked her appellant’s
father to discuss the matter, if necessary, with the doctors
of the Mental Hospital or with one Dr. P. L. Deshmukh, a
relative of the respondent’s mother. The letter was written
avowdely’in order that the appellant and his people “should
not be in the dark about an important episode” in the life
of the respondent, which “fortunately, had ended happily”.
Dr. Deshmukh confirmed what was stated in the letters and
being content with his assurance, the appellant and his
father made no enqui-

971

ries with the Yeravada Mental Hospital. The marriage was
performed at Poona on May 13, 1956. The appellant was then
27 and the respondent 21 years of age.

They lived at Arbhavi in District Belgaum from June to
October, 1956. On November 1, 1956 the appellant was
transferred to Poona where the two lived together till 1958.
During this period a girl named Shubha was born to them on
March 11, 1957. The respondent delivered in Delhi where
,her parents lived and returned to Poona in June, 1957 after
an absence, normal on such occasions, of about 5 months. In
October, 1958 the appellant took a job in the Pusa Institute
of Delhi, On March 21, 1959 the second daughter, Vibha, was
born. The respondent delivered at Poona where the
appellant’s parents lived and returned to Delhi in August,
1959. Her parents were living at this time in Djakarta,
Indonesia.

In January, 1961, the respondent went to Poona to attend the
marriage of the appellant’s brother, a doctor-by profession,
who has been given an adoption in the Lohokare family. A
fortnight after the marriage, on February 27, 1961 the
appellant who had also gone to Poona for the marriage got
the respondent examined by Dr. seth, a Psychiatrist in
charge of the Yeravada Mental Hospital. Dr. Seth probably
wanted adequate data to make his diagnosis and suggested
that he would like to have a few sittings exclusively with
the respondent. For reasons good or bad, the respondent was
averse to submit herself to any such scrutiny. Either she
herself or both she and the appellant decided that she
should stay for some time with a relative of bers, Mrs-.
Gokhale. On the evening of the 27th, she packed her tit-
bits and the appellant reached her to Mrs. Gokhale’s house.
There was no consultation thereafter with Dr. Seth.
According to the appellant, she had promised to see Dr, Seth
but she denies that she made any such promise. She believed
that the appellant was building up a case that she was of
unsound mind and she was being lured to walk into that trap.
February 1961 was the last that they lived together-. But
on the day of parting she was three months in the family
way. The third child, again a girl, named Pratibha was born
on August 19, 1961 when her parents were in the midst of a
marital crisis.

Things had by then come to an impossible pass. And close
relatives instead of offering wise counsel were fanning the
fire of discord that was devouring the marriage. A
gentleman called Gadre whose letter-head shows an “M.A.
(Phil.) M.A. (Eco.) LL.B.”, is a maternal uncle of the
respondent. On-March 2, 1961 he had written to tile
appellant’s father a pseudonymous letter now proved to be
his, full of malice and sadism. He wrote :

“I on my part consider myself to be the father
of ‘Brahmadev …………. This is only the
beginning. From the spark of your foolish and
half-baked egoism, a big conflagration of
family quarrels will break out and all will
perish therein This image of the mental agony
suffered by all your kith and’ kin gives me
extreme happiness…… You worthless person,
who cherishes a desire to spit on my face, now
behold that all the world is going to spit on
your old cheeks.

972

So why should I loose the opportunity of
giving you a few severe slaps on your cheeks
and of fisting your ear. It is my earnest
desire that the father-in-law should beat your
son with foot-ware in a public place.”

On March 11, 1961 the appellant returned to Delhi all alone.
Two days later the respondent followed him but she went
straight to her parents’ house in )Delhi. On the 15th, the
appellant wrote a letter to the police asking for protection
as he feared danger to his life from the respondent’s
parents and relatives. On the 19th, the respondent saw the
appellant but that only gave to the parties one more chance
to give vent to mutual dislike and distrust. After a brief
meeting, she left the broken home for good. On the 20th,
the appellant once again wrote to the police renewing his
request for protection.

On March 23, 1961 the respondent wrote to the appellant com-
plaining against his conduct and asking for money for the
maintenance of herself and the daughters. On May 19, 1961
the respondent wrote a letter to the Secretary, Ministry of
Food and Agriculture, saying that the appellant had deserted
her, that he had treated her with extreme cruelty and asking
that the Government should make separate provision for her
maintenance. On March 25, her statement was recorded by an
Assistant Superintendent of Police, in which she alleged
desertion and ill-treatment by the appellant. Further
statements were recorded by the police and the Food Ministry
also followed up respondent’s letter of May 19 but
ultimately nothing came out of these complaints and cross-
complaints.

As stated earlier, the third daughter, Pratibha, was born on
August 19, 1961. On November 3, 1961 the appellant wrote to
respondent’s father complaining of respondent’s conduct and
expressing regret that not even a proper invitation was
issued to him when the naming ceremony of the child was
performed. On December 15, 1961 the appellant wrote to
respondent’s father stating that he had decided to go to the
court for seeking separation from the respondent. The
proceedings out of which this appeal arises were instituted
on February 19, 1962.

The parties are Hindus but we do not propose, as is commonly
done and as has been done in this case, to describe the
respondent as a “Hindu wife in contrast to non-Hindu wives
as if wotmen professing this or that particular religion are
exclusively privileged in the matter of good sense, loyalty
and conjugal kindness. Nor shall we refer to the appellant
as a “Hindu husband” as if that species unfailingly projects
the image of tyrant husbands. We propose to consider the
evidence on its merits, remembering of course the peculiar
habits, ideas, susceptibilities and expectations of persons
belonging to the strata of society to which these two
belong. All circumstances which constitute the ,occasion or
setting for the conduct complained of have relevance but we
think that no assumption can be made that respondent is the
oppressed and appellant the oppressor. The evidence in any
case ought to bear a secular examination.

The appellant asked for annulment of his marriage by a
decree of nullity under section 12(1) (c) of ‘The Hindu
Marirage Act’, 25 of
973
1955, (“The Act”) on the ground that his consent to the
marriage was obtained by fraud. Alternatively, he asked for
divorce under section 13 (1) (iii) on the ground that the
respondent was incurably of unsound mind for a continuous
period of not less than three years immediately preceding
the presentation of the petition. Alternatively, the
appellant asked for Judicial separation under section 10(1)

(b) on the ground that the respondent had treated him with
such cruelty as to cause a reasonable apprehension in his
mind that. it would be harmful or injurious for him to live
with her.

The appellant alleged that prior to the marriage, the
respondent was treated in the Yeravada Menfal Hospital for
Schizophrenia but her father fraudulently represented that
she was treated for sun-stroke and cerebral malaria. The
trial court rejected this contention. It also rejected the
contention that the respondent was of unsound
mind.It,however, held that the respondent was guilty of
cruelty and on that ground it passed a decree for judicial
separation.

Both sides went in appeal to the District Court which
dismissed the appellant’s appeal and allowed the
respondent’s, with the result that the petition filed by the
appellant stood wholly dismissed.

The appellant then filed Second Appeal No. 480 of 1968 in
the Bombay High Court. A learned single Judge of that court
dismissed that appeal by a judgment dated February 24, 1969.
This Court granted to the appellant special leave to appeal,
limited to the question of judicial separation on the ground
of cruelty.

We are thus not concerned with the question whether the
appellant’s consent to the marriage was obtainede by fraud
or whether the respondent bad been of unsound mind for the
requisite period preceding the presentation of the petition.
The decision-of the-High Court on those questions must be
treated as final and can not be reopened.

In this appeal by special leave, against the judgment
rendered by the High Court in Second Appeal, we would not
have normally permitted the parties to take us through the
evidence in the case. Sitting in Second Appeal, it was not
open to the High Court itself to reappreciate evidence.
Section 100 of the Code of Civil Procedure restricts the
jurisdiction of the High Court in Second appeal to questions
of law or to substantial errors or defects in the procedure
which may possibly have produced error or defect in the
decision of the case upon the merits. But the High Court
came to the conclusion that both the courts below had
“failed to apply the correct principles of law in
determining the issue of cruelty”. Accordingly, the High
Court proceeded to consider the evidence for itself and came
to the conclusion independently that the appellant had
failed to establish that the respondent had treat him with
cruelty. A careful consideration of the evidence by the
High Court ought to be enough assurance that the finding of
fact is correct and it is not customary for this Court in
appeals under Article 136 of the Constitution to go into
minute details of evidence and weigh them one against the
other, as if for the first time. Disconcertingly, this
normal process is beset with practical difficulties.

974

In judging of the conduct of the respondent, the High Court
assumed that the words of abuse or insult used by the
respondent
“could not have been addressed in vacuum.

Every abuse, insult, remark or retort must
have been probably in exchange for remarks and
rebukes from the husband…………. a court
is bound to consider the probabilities and
infer, as I have done, that they must have
been in the context of the abuses, insults,
rebukes and remarks made by the husband and
without evidence on the record with respect to
the conduct of the husband in response to
which the wife behaved in a particular way on
each occasion, it is difficult, if not impos-
sible to draw inferences against the wife.”
We find this approach difficult to accept. Under section
103 of the Code of Civil Procedure, the High Court may, if
the evidence on the record is sufficient, determine any
issue of ‘fact necessary for the disposal of the appeal
which has not been determined by the lower appellate court
or which has been wrongly determined by such court by reason
of any illegality, omission, error or defect such as is
referred to in sub-section (1) of section 100. But, if the
High Court takes upon itself the duty to determine an issue
of fact its power to appreciate evidence would be subject to
the same restraining conditions to which the power of any
court of facts is ordinarily subject. The limits of that
power are not wider for the reason that the evidence is
being appreciated by the High Court and not by the District
Court. While appreciating ,evidence, inferences may and
have to be drawn but courts of facts have to remind
themselves of the line that divides an inference from guess-
work. If it is proved, as the High Court thought it was,
that the respondent had uttered words of abuse and insult,
the High Court was entitled to infer that she had acted in
retaliation, provided of course there was evidence, direct
or circumstantial, to justify such an inference. But the
High Court itself felt that there was no evidence on the
record with regard to the conduct of the husband in response
to which the wife could be said to have behaved in the
particular manner. The High Court reacted to this situation
by saying that since there was no evidence regarding the
conduct of the husband, “it is difficult, if not impossible,
to draw inferences against the wife”. If there was no
evidence that the husband had provoked the wife’s
utterances, no inference could be drawn against the husband.
There was no question of drawing any inferences against the
wife because, according to the High Court, it was
established on the evidence that she had uttered the
particular words of abuse and insult.

The approach of the High Court is thus erroneous and its
findings are vitiated. We would have normally remanded the
matter to the High Court for a fresh consideration of the
evidence but this proceeding has been pending for 13 years
and we thought that rather than delay the decision any
further, we should undertake for ourselves the task which
the High Court thought it should undertake under section 103
of the Code. That makes it necessary to consider the
evidence in the case.

975

But before doing so, it is necessary to clear the ground of
certain misconceptions, especially as they would appear to
have influenced the judgment of the High Court. First, as
to the nature of burden of Proof which rests on a petitioner
in a matrimonial petition under the Act. Doubtless, the
burden must lie on the petitioner to establish his or her
case for, ordinarily, the burden lies on the party which
affirms a fact, not on the party which denies it., This
principle accords with commonsense as it is so much earlier
to prove a positive than a negative. The petitioner must
therefore prove that the respondent has treated him with
cruelty within the meaning of section 10 (1) (b) of the Act.
But does the law require, as the High Court has held, that
the petitioner must prove his case beyond a reasonable doubt
? In other words, though the burden lies on the petitioner
to establish the charge of cruelty, what is the standard of
proof to be applied in order Lo judge whether the burden has
been discharged ?

The normal rule which governs civil proceedings is that a
fact can be said to be estabilshed if it is proved by a
preponderance of probabilities. This is for the reason
that under the Evidence Act, section 3, a fact issaid to be
proved when the court either believes it to exist or
considersits existence so probable that a prudent man
ought, under the circumstances of the particular case, to
act upon the supposition that it exists. The belief
regarding the existence of a fact may thus be founded on a
balance of probabilities. A prudent man faced with
conflicting probabilities concerning a fact-situation will
act on the supposition that the fact exists, if on weighing
the various probabilities he finds that the preponderance is
in favour of the existence of the particular fact. As a
prudent man, so the court applies this test for finding
whether a fact in issue can be said to be proved. The first
step in this process is to fix the probabilities, the second
to weigh them, though the two may often intermingle. The
impossible is weeded out at the first stage, the improbable
at the second. Within the wide range of probabilities the
court has often a difficult choice to make but it is this
choice which ultimately determines where. the preponderance
of probabilities lies. Important issues like those which
affect the status of parties demand a closer scrutiny than
those like the loan on a promissory note “the nature and
gravity of an issue necessarily determines the manner of
attaining reasonable satisfaction of the truth of the
issue”(1) ; or as said by Lord Denning, “the degree of
probability depends on the subject-matter. In proportion as
the offence is grave, so ought the proof to be clear” (2).
But whether the issue is one of cruelty or of a loan on a
promote, the test to apply is whether on a preponderance of
robabilities the relevant fact is proved. In civil cases
this, normally, is the standard of proof to apply for
finding whether the burden of proof is discharged.
Proof beyond reasonable doubt is proof by a higher standard
which generally governs criminal trials or trials involving
inquiry into issues of a quasi-criminal nature. A criminal
trial involves the liberty of the subject which may not be
taken away on a mere preponderance of probabilities. If the
probabilities are so’ nicely balanced that a reasonable,
(1) Per Dixon,J.in Wright v.Wright (1948)77 C.L.R.191at p.

210.
(2) Blyth v. Blyth, [1966] 1 A.E.R. 524 at 536.

976

not a vascillating, mind cannot find where the preponderance
lies, a doubt arises regarding the existence of the fact to
be proved and the benefit of such reasonable doubt goes to
the accused. It is wrong to import such considerations in
trials of a purely civil nature.

Neither section 10 of the Act which enumerates the grounds
on which a petition for judicial separation may be presented
nor section 23 which governs the jurisdiction of the court
to pass a decree in any proceeding under the Act requires
that the petitioner must prove his case beyond a reasonable
doubt. Section 23 confers on the court the power to pass a
decree if it is “satisfied” on matters mentioned in clauses

(a) to (e) of the section. Considering that proceedings
under the Act are essentially of a civil nature, the word
“satisfied” must mean “satisfied on a preponderance of
probabilities” and not “satisfied beyond a reasonable
doubt”. Section 23 does not alter the standard of proof in
civil cases.

The misconception regarding the standard of proof in
matrimonial cases arises perhaps from a loose description of
the respondent’s conduct in such cases as constituting a
“matrimonial offence”. Acts of a spouse which are
calculated to impair the integrity of a marital union have a
social significance. To mar’ or not to marry and if so
whom, may well be a private affair but the freedom to break
a matrimonial tie is not. The society has a stake in the
institution of marriage and therefore the erring spouse is
treated not as a mere defaulter but as an offender. ]But
this social philosophy, though it may have a bearing on the
need to have the clearest proof of an allegation before it
is accepted as a ground for the dissolution of a marriage,
has no bearing on the standard of proof in matrimonial
cases.

In England, a view was at one time taken that the petitioner
in a matrimonial petition must establish his case beyond a
reasonable doubt but in Blyth v. Blyth(P), the House of
Lords held by a majority that so far as the grounds of
divorce or the bars to divorce like connivance or
condonation are concerned, “the case; like any civil case,
may be proved by a preponderance of probability”. The High
Court of Austraila in Wright v. Wright (2) , has also taken
the view that “the civil and not the criminal standard of
persuasion applies to matrimonial causes, including issues
of adultery”. The High Court was therefore in error in
holding that the petitioner must establish the charge of
cruelty “beyond reasonable doubt”. The High Court adds that
“This must be in accordance with the law of evidence”, but
we are not clear as to the implications of this observation.
Then, as regards the meaning of “Cruelty”. The High Court
on this question begins with the decision in Moonshee
Bazloor Rubeem v. Shamsoonnissa Begum(3), where the Privy
Council observed:

“The Mohomedan law, on a question of what is
legal cruelty between Man and Wife, would
probably not differ materially from our own of
which one of the most recent exposition is the
following :- ‘There must be actual violence
(1) [1966] A.E.R. 524 at 536.

(2) 1948, 77 C.L.R. 191 at 210.

(3) 11 Moore’s Indian Appeals 551.

977

of such a character as to endanger personal
health or safety; or there must be a
reasonable apprehension of it’.”

The High Court then refers to the decisions of some of the
Indian Courts to illustrate “The march of the Indian Courts
with the Englishs Courts” and cites the following passage
from D. Tolstoy’s “The Law and Practice of Divorce and
Matrimonial Causes” (Sixth Ed., p. 61):

“Cruelty which is a ground for dissolution of
marriage may be defined as wilful and
unjustifiable conduct of such a character as
to cause danger to life, limb or health,
bodily or mental, or as to give rise to a
reasonable apprehension of such a danger.”

The High Court concludes that “Having regard to these
principles and the entire evidence in the case, in my
judgment, I find that none of the acts complained of against
the respondent can he considered to be so sufficiently grave
and weighty as to be described as cruel according to the
matrimonial law.”

An awareness of foreign decisions could be a useful asset in
interpreting our own laws. But it has to be remembered that
we have to interpret in this case a specific provision of a
specific enactment, namely, section 10(1) (b) of the Act.
What constitutes cruelty must depend upon the terms of this
statute which provides :

“10(1) Either party to a marriage, whether
solemnized 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
other party-

(b) has treated the petitioner with such
cruelty as to cause areasonable
apprehension in the mind of the petitioner
that it will be harmful or injurious for the
petitioner to live with the other party;”

The inquiry therefore has to be whether the conduct charged
a,.- cruelty is of such a character as to cause in the mind
of the petitioner a reasonable apprehension that it will be
harmful or injurious for him to live with the respondent.
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 or as to give rise to a reasonable
apprehension of such a danger. Clearly, danger to life,
limb or health or a reasonable apprehension of it is a
higher requirement than a reasonable apprehension that it is
harmful or injurious for one spouse to live with the other.
The risk of relying on English decisions in this field may
be shown by the learned Judge’s reference to a passage from
Tolstoy (p. 63) in which the learned author, citing Horton
v. Horton(1), says :

“Spouses take each other for better or worse,
and it is not enough to show that they find
life together impossible, even if there
results injury to health.”

(1) [1940] P. 187.

978

If the danger to health arises merely from the fact that the
spouses find it impossible to live together as where one of
the parties shows an attitude of indifference to the other,
the charge of cruelty may perhaps fail. But under section
10(1) (b), harm or injury to health, reputation, the working
career or the like, would be an important consideration in
determining whether the conduct of the respondent amounts to
cruelty. Plainly, what we 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
proves 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.

One other matter which needs to be clarified is that though
under section 10(1) (b), the apprehension of the petitioner
that it will be harmful or injurious to live with the other
party has to be reasonable, it is wrong, except in the
context of such apprehension, to import the concept of a
reasonable man as known to the law of negligence for judging
of matrimonial relations. Spouses are undoubtedly supposed
and expected to conduct their joint venture as best as they
might but it is no function of a court inquiring into a
charge of cruelty to philosophise on the modalities of
married life. Some one may want to keep late hours to
finish the day’s work and some one may want to get up early
for a morning round of golf. The court cannot apply to the
habits or hobbies of these the test whether a reasonable man
situated similarly will behave in a similar fashion. “The
question whether the misconduct complained of constitutes
cruelty and the like for divorce purposes is determined
primarily by its effect upon the particular person com-
plaining of the acts. The question is not whether the
conduct would be cruel to a reasonable person or a person of
average or normal sensibilities, but whether it would have
that effect upon the aggrieved spouse,. That which may be
cruel to one person may be laughed off by another, and what
may not be cruel to an individual under one set of circums-
tances may be extreme cruelty under another set of
circumstances.”(1) The Court has to deal, not with an ideal
husband and ideal wife (assuming any such exist) but with
the particular man and woman before it. The ideal couple or
a near-ideal one will probably have no occasion to go to a
matrimonial court for, even if they may not be able to drown
their differences, their ideal attitudes may help them over-
look or gloss over mutual faults and failures. As said by
Lord Reid in his speech in Gollins v. Gollins (2).

“In matrimonial cases we are not concerned
with the reasonable man, as we are in cases of
negligence. We are dealing with this man and
this woman and the fewer a priori assumptions
we make bout them the better. In cruelty
cases one can hardly ever even start with a
presumption that the parties are reasonable
people, because it is hard to imagine any
cruelty case ever arising if both the spouses
think and behave as reasonable people.”

We must therefore try and understand this Dr. Dastane and
his wife Sucheta as nature has made them and as they have
shaped their lives.

(1) American Jurisprudence, 2nd Ed., Vol. 24, p. 206.
(2) [1963] 2 A.E.R. 966,970.

979

The only rider is the interdict of section 23 ( 1 ) (a) of
the Act that the relief prayed for can be decreed only if
the court is satisfied that the petitioner is not in any way
taking advantage of his own wrong. Not otherwise.
We do not propose to spend time on the trifles of their
married life. Numerous incidents have been cited by the
appellant as constituting cruelty but the simple
trivialities which can truly be described as the reasonable,
wear and tear of married life have to be ignored. It is in
the context of such trivialities that one says that spouses
take each other for better or worse. In many marriages each
party can, if it so wills, discover many a cause for
complaint but such grievances arise mostly from
temperamental disharmony. Such disharmony or
incompatibility is not cruelty and will not furnish a cause
for the dissolution of marriage. We will therefore have
regard only to grave and weighty incidents and consider
these to find what place they occupy on the marriage canvas.
The spouses parted company on February 27, 1961, the
appellant filed his petition on February 19, 1962 and the
trial began in September, 1964. The 3-1/2 years’ separation
must naturally have created many more misunderstandings and
further embitterment. In such an atmosphere, truth is a
common casualty and therefore we consider it safer not to
accept the bare word of the appellant either as to what the
respondent said or did or as to the genesis of some of the
more serious incidents. The evidence of the respondent too
would be open to the same criticism but the explanation of
her words and deeds, particularly of what she put in cold
print, must come from her oral word and that has to be
examined with care.

The married life of these spouses is well-documented, almost
incredibly documented. They have reduced to writing what
crossed their minds and the letters which they have written
to each other bear evidence of the pass to which the
marriage had come. Some of these were habitually written as
the first thing in the morning like a morning cup (if tea
while some were written in the silence of mid-night soon
after the echo of harsh words had died down. To think that
this young couple could indulge in such an orgy of furious
letter-writing is to have to deal with a problem out of the
ordinary for it is seldom that a husband and wife, while
sharing a common home, adopt the written word as a means of
expression or communication.

The bulk of the correspondence is by the wife who seems to
have a flair for letter-writing. She writes in some style
and as true as “The style is the man”, her letters furnish a
clue to her personality. They are a queer mixture of
confessions and opprobrious accusations. It is strange that
almost every one connected with this couple his a penchant
for writing. The wife, apart from her voluminous letters,
has written an autobiographical account of her unfortunate
experiences in the Yeravada Hospital, calling it “Mee
Antaralat Tarangat Asta” (“while I was floating in space”).
The husband’s father idealised the Shiva-Parvati
relationship in a book called : “Gauriharachai Goad Kahani”
(“The sweet story of Gaurihar”). Quite a few of the wifes
relatives including a. younger sister of hers and of course
her maternal
980
uncle have set their pen to paper touching some aspect or
the other of her married life. Perhaps, it was unfortunate
that the promised millennium that did not come began with a
letter. That was the letter of April 25, 1956 which the
wife’s lather wrote to the husband’s father while the
marriage negotiations were in progress. The marriage took
place on May 13, 1956.

Nothing deserving any serious notice happened till August,
1959 except that the letters Exs. 556, 238, 243 and 244 show
that quite frequently the respondent used to get into fits
of temper and say things for which She would express regret
later. In the letter Ex. 556 dated November 23, 1956 she
admits to having behaved “very badly”; in Ek. 238 dated
March 26, 1959 she admits that she was behaving like an
“evil star” and had harassed the appellant; in Ex. 243 dated
May 5, 1959 she says that she was aware of her “lack of
sense” and asks for forgiveness for having insulted the
appellant, his parents, his sister and her husband; and in
Ex. 244 dated May 22, 1959 she entreats the appellant that
he should not feel guilty for the insults hurled by her at
his parents.

The period from August 1959 to March 1960 was quite critical
and the correspondence covering that period shows that an
innate lack of self-control had driven the respondent to
inexorable conduct. By the letter. Ex. 256 dated February
16, 1960 the appellant complained to the respondent’s father
who was then in Indonesia that the respondent kept on
abusing him, his parent and sister and that he was extremely
unhappy. The appellant says in the letter that differences
between a husband and wife were understandable but that it
was impossible to tolerate the respondent constantly
accusing him and his relatives of wickedness. The appellant
complains that the respondent used to say that the book
written by his father should be burnt to ashes, that the
appellant should apply the ashes to his forehead, that the
whole Dastane family was utterly mean and that she wished
that his family may be utterly ruined. The appellant was
gravely hurt at the respondent’s allegation that his
father’s ‘Sanad’ bad been once forfeited. The appellant
tells the respondent’s father that if he so desired he could
ask her whether anything stated in the letter was untrue and
that he had conveyed to her what be was stating in the
letter. It may be stated that the respondent admits that
the appellant had shown her this letter before it was posted
to her father. On March 21. 1960 the respondent wrote a
letter (Ex. 519) to the appellant’s parents admitting the
truth of the allegations made by the appellant in Ex. 256.
On June 23, 1960 the respondent made a noting in her own
hand stating that she had accused the appellant of being a
person with a beggarly luck, that she had said that the food
eaten at his house, instead of being digested would cause
worms in the stomach and that she had given a threat :
“murder shall be avenged with murder”.

During June 1, 1960 to December 15, 1960 the marital
relations were subjected to a stress and strain which
ultimately wrecked the marriage. In about September, 1960
the appellants father probably offered to mediate and asked
the appellant and the respondent to submit to him their
respective complaints in writing. The appellant’s bill of
complaints is at Ex. 426 dated October 23, 1960. The letter
much
981
too long to be reproduced, contains a sorry tale. The gist
of the more important of the appellant’s grievances in
regard to the period prior to June, 1960 is this : (1)’ The
respondent used to describe the appellant’s mother as a
boorish woman; (2) On the day of ‘Paksha’ (the day oil which
oblations are offered to ancestors) she used to abuse the
ancestors of the appellant; (3) She tore off the ‘Mangal-
Sutra’; (4) She beat the daughter Shubha while she was
running a high temperature of 104′; (5) One night she
started behaving as if she was ‘possessed’. She tore off
the Mangal-Sutra once again and said that she will not put
it on again; and (6) She used to switch on the light at
midnight and sit by the husband’s bedside nagging him
through the night, as a result he literally prostrated
himself before her on several occasions.

The gist of the incidents from May to October, 1960 which
the appellant describes as ‘a period of utmost misery’ is
this. (1) The respondent would indulge in every sort of
harassment and would blurt out anything that came to her
mind; (2) One day while a student of the appellant called
Godse was sitting in the outer room she shouted : “You are
not a man at all”; (3) In the heat of anger she used to say
that she would pour kerosene on her body and would set fire
to herself and the house; (4) She used to lock out the
appellant when he was due to return from the office. On
four or five occasions he had to go back to the office
without taking any food; (5) For the sheer sake of harassing
him she would hide his shoes, watch, keys and other things.
The letter Ex. 426 concludes by saying : ,
“She is a hard headed, arrogant, merciless,
thoughtless, unbalanced girl devoid of sense
of duty. Her ideas about a husband are : He
is a dog tied at doorstep who is supposed to
come and go at her beck and call whenever
ordered. She behaves with the relatives of
her husband as if they were her servants.

When I see her besides herself with fury, I
feel afraid that she may kill me at any
moment. I have become weary of her nature of
beating the daughters, scolding and managing
me every night uttering abuses and insults.”
Most of these incidents are otherwise, supported, some by
the admissions of the respondent herself, and for their
proof we do not have to accept the bare word of the
appellant.

On July 18, 1960 the respondent wrote a letter (Ex. 274) to
the appellant admitting that within the bearing of a visitor
she had beaten the daughter Shubha severely. When the
appellant protested she retorted that if it was a matter of
his prestige, be should not have procreated the children.
She has also admitted in this letter that in relation to her
daughters she bad said that there will be world deluge be-
cause of the birth of those “ghosts”. On or about July 20.
1960 she wrote another letter (Ex. 275) to the appellant
admitting that she had described him as “a monster in a
human body”, that she had and that be’should not have
procreated children. that he should “Pickle them and
preserve them in a jar” and that she had given a threat that
she would see to it that he loses his job and then she would
publish the news in the Poona newspapers. On December 15,
1960 the appellant wrote a
982
letter (Ex. 285) to the respondent’s father complaining of
the strange and cruel behaviour not only of the respondent
but of her mother. He says that the respondent’s mother
used to threaten him that since she was the wife of an Under
Secretary she knew many important persons and could get him
dismissed from service, that she used to pry into his
correspondence in his absence and that she even went to the
length of saying that the respondent ought to care more for
her parents because she could easily get another husband but
not another pair of parents.

The respondent then went to Poona for the appellant’s
brother’s marriage, where she was examined by Dr. Seth of
the Yeravada Hospital and the spouses parted company on
February 27, 1961.

The correspondence subsequent to February 27, 1961 shall
have to be considered later in a different,, though a highly
important, context. Some of those letters clearly bear the
stamp of being written under legal advice. The parties had
fallen out for good and the domestic war having ended
inconclusively they were evidently preparing ground for a
legal battle.

In regard to the conduct of the respondent as reflected in
her admissions, two contentions raised on her behalf must be
considered. It is urged in the first place that the various
letters containing admissions were written by her under
coercion. There is no substance in this contention. In her
written statement, the respondent alleged that the
appellant’s parents had coerced her into writing the
letters. At the trial she shifted her ground and said that
the coercion proceeded from the appellant himself. That
apart, at a time when the marriage had gone asunder and the
respondent sent to the appellant formal letters resembling a
lawyer’s notice, some of them by registered post, no alle-
gation was made that the appellant or his parents had
obtained written admissions from her. Attention may be
drawn in this behalf to the letters Exs. 299 and 314 dated
March 23 and May 6, 1961 or to the elaborate complaint Ex.
318 dated May 19, 1961 which she made to the Secretary to
Government of India, Ministry of Food and Agriculture.
Prior to that on September 23, 1960 she had drawn up a list
of her complaints (Ex. 424) which begins by saying : “He has
oppressed me in numerous ways like the following.” But she
does not speak therein of any admission or writing having
been obtained from her. Further, letters like Exs. 271 and
272 dated respectively June 23 and July 10, 1960 which
besides containing admissions on her part also contain
allegations against the appellant could certainly not have
been obtained by coercion. Finally, considering that the
respondent was always surrounded by a group of relatives who
had assumed the role of marriage-counsellors, it is unlikely
that any attempt to coerce her into making admissions would
have been allowed to escape unrecorded. After all, the
group here consists of greedy letter-writers.
The second contention regarding the admissions of the
respondent is founded on the provisions of section 23(1)(a)
of the Act under which the court cannot decree relief unless
it is satisfied that “the petitioner is not in any way
taking advantage of his own wrong’. The fulfilment of the
conditions mentioned in, section 23(1) is so imperative
983
that the legislature has taken the care to provide that
“then, and in such a case, but not otherwise, the court
shall decree such relief accordingly”. It is urged that the
appellant is a bigoted and egocentric person who demanded of
his wife an impossibly rigid standard of behaviour and the
wife’s conduct must be excused as being in selfdefence. In
other words, the husband is said to have provoked the wife
to say and act the way she did and he cannot be permitted to
take advantage of his own wrong. The appellant, it is true,
seems a stickler for domestic discipline and these so-called
perfectionists can be quite difficult to live with. On
September 22, 1957 the respondent made a memorandum (Ex.

379) of the instructions given by the appellant, which makes
interesting reading:

“Special instructions given by my husband.
(1) On rising up in the morning, to look in the minor.
(2) Not to fill milk vessel or tea cup to the brim.
(3) Not to serve meals in brass plates cups and vessels.
(4) To preserve carefully the letters received and if
addresses of anybody are given therein to note down the same
in the note book of addresses.

(5)After serving the first course during meals, not to
repeatedly ask ‘what do you want?’ but to inform at the
beginning of the meals how much and which are the courses.
(6)As far as possible not to dip the fingers in any
utensils.

(7) Not to do any work with one hand.

(8) To keep Chi. Shuba six feet away from the primus stove
and Shegari.

(9) To regularly apply to her ‘Kajal’ and give her tomato
juice, Dodascloin etc. To make her do physical exercise, to
take her for a walk and not to lose temper with her for a
year.

(10) To give him his musts and the things he requires when
he starts to go outside.

(11) Not to talk much.

(12) Not to finish work somehow or the other; for example
to write letters in good hand writing, to take a good paper,
to write straight and legibly in a line.

(13) Not to make exaggerations in letters.
(14) To show imagination in every work. Not to note down
the milk purchased on the calendar.”

984

Now, this was utterly tactless but one cannot say that it
called for any attack in self-defence. The appellant was
then 28 and the respondent 22 years of age. In that early-
morning flush of the marriage’ young men and women do
entertain lavish expectations of each other do not and as
years roll by they see the folly of. their ways. But we
think that the wife was really offended by the instructions
given by the appellant. The plea of self-defence seems a
clear after-thought which took birth when there was a
fundamental failure of faith and understanding.
Reliance was then placed on certain letters to show that the
husband wanted to assert his will at any cost, leaving the
wife no option but to retaliate. We see no substance in
this grievance either. The, plea in the written statement
is one of the denial of conduct alleged and not of
provocation. Secondly, there are letters on the record by
which the wife and her relatives had from time to time
complimented the husband and his parents for their warmth,
patience and understanding.

Counsel for the respondent laid great emphasis on the
letter, Ex. 244 dated May 22, 1959 written by her to the
appellant in which she refers to some “unutterable question”
put by him to her. It is urged that the appellant was
pestering her with a demand for divorce and the “unutterable
question” was the one by which he asked for divorce. No
such inference can in our opinion be raised. The respondent
has not produced the letter to which Ex. 244 is reply; in
the written statement there is hardly a suggestion that the
appellant was asking her for a divorce; and the appellant
was not asked in his evidence any explanation in regard to
the “unutterable question”.

These defences to the charge of cruelty must accordingly be
rejected. However, learned counsel for the respondent is
right in stressing the warning given by Denning L.J., in
Kaslefsky v. Kaslefsky that : “If the door of cruelty were
opened too wide, we should soon find ourselves granting
divorce for incompatibility of temperament. This is an easy
path to tread especially in undefended cases. The temp-
tation must be resisted test we slip into a state of affairs
where the institution of marriage itself is imperilled.” But
we think that t1o hold in this case that the wife’s conduct
does not amount to cruelty is to close for ever the door of
cruelty so as to totally prevent any access thereto. This
is not a case of mere austerity of temper, petulance of
manners, rudeness of language or a want of civil attention
to the needs of the husband and the household. Passion and
petulance have perhaps to be suffered in silence as the
price of what turns out to be an injudicious selection of a
partner. But the respondent is the mercy of her inflexible
temper. She delights in causing misery to her husband and
his relation-, and she willingly suffers the calculated
insults which her relatives hurled at him and his parents :
the false accusation that, “the pleader’s Sanad of that old
bag of your father was forfeited”; “I want to see the
ruination of the whole Dastane dynasty”, “burn
(1)[1950] 2 A.E.R. 398,403.

985

the book written by your father and apply the ashes to your
forehead”; “you are not a man” conveying that the children
were not his; “you are a monster in a human body. “I will
make you lose your job and publish it in the Poona
newspapers”-these and similar outbursts are not the ordinary
wear and tear of married life but they became, by their
regularity a menace to the peace and well-being of the
household. Acts like the tearing of the Mangal-Sutra,
locking out the husband when he is due to return from the
office, rubbing chillie powder on the tongue of an infant
child, beating a child mercilessly while in high fever and
switching on the light at night and sitting by the bedside
of the husband merely to nag him are acts which tend to
destroy the legitimate ends and objects of matrimony.
Assuming that there was some justification for occasional
sallies or show of temper, the pattern of behaviour which
the respondent generally adopted was grossly excessive.
The conduct of the respondent clearly amounts to cruelty
within the meaning of section 10(1) (b) of the Act. Under
that provision, the relevant consideration is to see whether
the conduct is such as to cause a reasonable apprehension in
the mind of the petitioner that it will be harmful or
injurious for him to live with the respondent. The threat
that she will put an end of her own life or that she will
set the house on fire, the threat that she will make him
lose his job and have the matter published in newspapers and
the, persistent abuses and insults hurled at the appellant
and his parents are all of so grave an order as to imperil
the appellant’s sense of personal safety. mental, happiness,
job satisfaction and reputation. Her once-too-frequent.
apologies do not reflect genuine contrition but were merely
impromptu device to tide over a crisis temporarily.
The next question for consideration is whether the appellant
had at any time condoned the respondent’s cruelty. Under
section 23(1) (b) of the Act, in any proceeding under the
Act whether defended or not, the relief prayed for can be
decreed only and only if “where the ground of the petition
is cruelty the petitioner has not in any manner condoned the
cruelty”.

The respondent did not take up the plea in her written
statement that the appellant bad condoned her cruelty.
Probably influenced by that omission, the trial court did
not frame any issue on condonation. While granting a decree
of judicial separation on the ground of cruelty, the learned
Joint Civil Judge, Junior Division, Poona, did not address
himself to the question of condonation. In appeal, the
learned Extra Assistant Judge, Poona, having found that the
conduct of the respondent did not amount to cruelty, the
question of condonation did not arise. The High Court in
Second Appeal confirmed the finding of the 1st Appellate
Court on the issue of cruelty and it further held that in
any case the alleged cruelty was condoned by the appellant.
The condonation, according to the High Court, consisted in
the circumstance that the spouses co-habited till February
27, 1961 and a child was born to them in August, 1961.

986

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
co-habitation 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 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.

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(1). The evidence of
condonation in this case is, in our opinion, as strong and
satisfactory as the evidence of cruelty. 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. Cruelty, 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 continued
co-habitation be construed as condonation. Such a
construction will hinder reconciliation and thereby
frustrate the benign purpose of marriage laws.
The evidence of condonation consists here in the fact that
the spouses led a normal sexual life despite the
respondent’s Acts of cruelty. This is not a case where the
spouses, after separation, indulged in a stray act of sexual
intercourse, in which case the necessary intent to forgive
and restore may be said to be lacking. Such stray acts may
bear more than one explanation. But if during co-habitation
the spouses, uninfluenced by the conduct of the offending
spouse, lead a life of intimacy which characterises normal
matrimonial relationship, the intent to forgive and restore
the offending spouse to the original status may reasonably
be inferred. There is then no scope for imagining that the
conception of the child could be the result of a single act
of sexual intercourse and that such an act could be a stark
animal act unaccompanied by the nobler graces of marital
life. One might then as well magine that the sexual act was
undertaken just in order to kill boredom or even in a spirit
of revenge. Such speculation is impermissible. Sex plays
an important role in marital life and cannot be separated
from other factors which lend to matrimony a sense of
fruition and fulfilment. Therefore, evidence showing that
the spouses led a normal sexual life even after a series of
acts of cruelty by one spouse is proof that the other spouse
condoned that cruelty. Intercourse, of course, is not a
necessary ingre-

1. The Law and Practice of Divorce and Matrimonial Causes by
D. Tolstoy sixth Ed., p. 75.

987

dient of condonation because there may be evidence otherwise
to show that the offending spouse has been forgiven and has
been received back into the position previously occupied in
the home. But intercourse in circumstances as obtain here
would raise a strong inference of condonation with its dual
requirement, forgiveness and restoration. That inference
stands uncontradicted, the appellant not having explained
the circumstances in which he came to lead and live a normal
sexual life with the respondent, even after a series of acts
of cruelty on her part.

But condonation of a matrimonial offence is not to be
likened to a full Presidential Pardon under Article 72 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” (1). 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(2). Condoned
cruelty can therefore be revived, say, by desertion or
adultery.”

Section 23 (1) (b) of the Act, it may be urged, speaks of
condonation but not of its revival and therefore the English
doctrine of revival should not be imported into matters
arising under the Act. Apparently, this argument may seem
to receive some support from the circumstances that under
the English law, until the passing of the Divorce Reform
Act, 1969 which while abolishing the traditional bars to
relief introduces defences in the nature of bars, at least
one matrimonial offence, namely, adultery could not be
revived if once condoned (3). But a closer examination of
such an argument would reveal its weakness. The doctrine of
condonation was established by the old ecclesiastical courts
in Great Britain and was adopted by the English Courts from
the canon law. ‘Condonation’ is a technical word which
means and implies a conditional waiver of the right of the
injured spouse to take matrimonial proceedings. It is not
‘forgiveness’ as commonly understood (4). In England
condoned adultery could not be received because of the
express provision contained in section 3 of the Matrimonial
Causes Act, 1963 which was later incorporated into section
42(3) of the Matrimonial Causes Act, 1965. In the absence
of any such provision in the Act governing the charge of
cruelty, the word ‘condonation’ must receive the meaning
which it has borne for centuries in the world of law(“).
‘Condonation’ under section 23 (1) (b) therefore means
conditional forgiveness, the implied condition being that no
further matrimonial offence shall be committed.
(1) See Words and Phrases Legally Defined (Butterworths)
1969 Ed., Vol I, p. 305, (“Condonation”).

(2) See Halsbury’s Laws of England, 3rd Ed., Vol. 12, p.
3061.

(3) See Rayden on Divorce, 11th Ed. (1971) pp. 11, 12, 23,
68, 2403.

(4) See Words and Phrases Legally Defined (Butterworths)
1969 Ed., p. 306 and the Cases cited therein.
(5) See Ferrers vs Ferrers (1791) 1 Hag. Con 130 at pp.
130, 131.

988

It therefore becomes necessary to consider the appellant’s
argument that even on the assumption that the appellant had
condoned the cruelty, the respondent by her subsequent
conduct forfeited the conditional forgiveness, thereby
reviving the original cause of action for judicial
separation on the ground of cruelty. It is alleged that the
respondent treated the appellant with cruelty during their
brief meeting on March 19, 1961, that she refused to allow
to the appellant any access to the children, that on May 19,
1961 she wrote a letter (Ex. 318) to the Secretary to the
Government of India, Ministry of Food and Agriculture, New
Delhi, containing false and malicious accusations against
the appellant and his parents and that she deserted the
appellant and asked the Government to provide her with
separate maintenance.

These facts, if proved, shall have to be approached and
evaluated differently from the facts which were alleged to
constitute cruelty prior to its condonation. The incidents
on which the appellant relied to establish the charge of
cruelty had to be grave and weighty. And we found them to
be so. In regard to the respondent’s conduct subsequent to
condonation, it is necessary to bear in mind that such
conduct may not be enough by itself to found a decree for
judicial separation and yet it may be enough to revive the
condoned offence. For example, gross familiarities short of
adultery(1) or desertion for less than the statutory period
(2) may be enough to revive a condoned offence.
The incident of March 19, 1961 is too trifling to deserve
any notice. That incident is described by the appellant
himself in the complaint (Ex. 295) which he made to the
police on March 20, 1961. He says therein that on the 19th
morning, the respondent went to his house with some
relatives, that those relatives-instigated her against him,
that they entered his house though he asked them not to do
so and that she took away certain household articles with
her. As shown by her letter (Ex. 294) dated the 19th
itself, the articles which she took away were some petty
odds and ends like a do]], a slate, a baby hold-all, two
pillows, a bundle of clothes and a baby-cart. The police
complaint made by the appellant betrays some
hypersensitivity.

As regards the children, it does seem that ever since
February 27, the appellant was denied a chance to meet them.
His letters Exs. 307. 309 and 342 dated April 20, April
21 and November 23, 1961 respectively contain the grievance
that the children were deliberately not allowed to see him.,
From his point of view the grievance could be real but then
the children, Shubha and Vibha, were just 4 and 2 years of
age in February, 1961 when their parents parted company.
Children of such tender age need a great amount of looking
after and they could not have been sent to meet their father
unescorted. The one person who could so escort them was the
mother who bad left or bad to leave the matrimonial home for
good. The appellant’s going to the house of the
respondent’s parents where he was living was in the
circumstances an impracticable proposition. Thus, the wall
that divided the parents denied to the appellant access to
his children.

(1) Halsbury’s Law-, of England, 3rd Ed., Vol. 12, p. 306,
para 609.

(2) Beard vs. Beard [1945] 2 A.E.R. 306.

989

The allegations made by the respondent in her letter to the
Government, Ex. 318 dated May 19, 1961 require a close
consideration. It is a long letter, quite an epistle, in
tune with the, respondent’s proclivity as a letter-writer.
By that letter, she asked the Government to provide separate
maintenance for herself and the children. The allegations
contained in the letter to which the appellant’s counsel has
taken strong exception are these : (1) During the period
that she lived with the appellant, she was subjected to
great harassment as well as mental and physical torture; (2)
The appellant had driven her out of the house on February
27, 1961; (3) The appellant had deserted her and had declar-
ed that he will not have any connection with her and that he
will not render any financial help for the maintenance of
herself and the children. He also refused to give medical
help to her in her advanced stage of pregnancy; (4) The
appellant had denied to her even the barest necessities of
life like food and clothing; (5) The parents of (he
appellant were wicked persons and much of her suffering was
due to the influence which they had on the appellant; (6)
The appellant used to threaten her that he would divorce
her, drive her out of the house and even do away with her
life, (7) The plan to get her examined by Dr. Seth of the
Peravada Mental Hospital was an insincere wicked and evil
move engineered by the appellant, his brother and his
father, (8) On her refusal to submit to the medical
examination any further, she was driven out of the house
with the children after being deprived of the valuables on
her person and in her possession; and (9) The appellant had
subjected her to such cruelty as to cause a reasonable
apprehension in her mind that it would be harmful or
injurious for her to live with him.

Viewed in isolation, these allegations present a different
and a somewhat distorted picture. For their proper
assessment and understanding, it is necessary to consider
the context in which those allegations came to be made. We
will, for that purpose, refer to a few letters.
On March 7, 1961 the respondent’s mother’s aunt, Mrs.
Gokhale wrote a letter (Ex. 644) to the respondent’s mother.
The letter has some bearing on the events which happened in
the wake of the separation which took place on February 27,
1961. It shows that the grievance of the respondent and her
relatives was not so much that a psychiatrist was consulted
as that the consultation was arranged without any prior
intimation to the respondent. The letter shows that the
appellant’s brother Dr. Lohokare, and his brother-in-law
Deolalkar, expressed regret that the respondent should have
been got examined by a psychiatrist without previous
intimation to any of her relatives. The letter speaks of a
possible compromise between the husband and wife and it sets
out the terms which the respondent’s relatives wanted to
place before the appellant. The terms were that the
respondent would stay at her parents’ place until her
delivery but she would visit the appellant off and on; that
the children would be free to visit the appellant; and that
in case the appellant desired that the respondent should
live with him, he should arrange that Dr. Lohokare’s mother
should stay with them in Delhi for a few days. The last
term of the proposed compromise Was that instead of digging
the past the husband and wife should live in peace and
happiness. The letter bears mostly the handwritting
990
of the respondent herself and the significance of that
circumstance is that it was evidently written with her
knowledge and consent. Two things are clear from the letter
: one, that the respondent did not want to leave the
appellant and two, that she did not either want to prevent
the children from seeing the appellant. The letter was
written by one close relative of the respondent to another
in the ordinary course of events and was not, so to say,,
prepared in order to create evidence or to supply a possible
defence. It reflects a genuine attitude, not a makebelieve
pose and the feelings expressed therein were shared by the,
respondent whose handwriting the letter bears.
This letter must be read along with the letter Ex. 304 which
the respondent sent to the appellant on April 18, 1961. She
writes :

“I was sorry to hear that you are unwell and
need treatment. I would always like never to
fail in my wifely duty of looking after you,
particularly when you are ailing, but you
will, no doubt, agree that even for this, it
will not be possible for me to join you in the
house out of which you have turned me at your
father’s instance. ‘This is, therefore, just
to keep you informed that if you come to 7/6
East Patel Nagar, I shall be able to nurse you
properly and my parents will ever be most
willing to afford the necessary facilities
under their care to let me carry out this
proposal of mine.”

There is no question that the respondent had no animus to
desert the appellant and as stated by her or on her behalf
more than once, the appellant had on February 27, 1961
reached her to Mrs. Gokhale’s house in Poona, may be in the
hope that she will cooperate with Dr. Seth in the
psychiatric exploration. She did not leave the house of her
own volition.

But the appellant had worked himself up to believe that the
respondent had gone off her mind. On March 15, 1961 he made
a complaint (Ex. 292) to the Delhi Police which begins with
the recital that the respondent was in the Mental Hospital
before marriage and that she needed treatment from a
psychiatrist. He did say that the respondent was “a very
loving and affectionate person” but he qualified it by say-
ing : “when excited, she appears to be a very dangerous
woman, with confused thinking”.

On April 20, 1961 the appellant wrote a letter (Ex. 305) to
the respondent charging her once again of being in an
“unsound state of mind”. The appellant declared by that
letter that he will not be liable for any expenses incurred
by her during her stay in her parents’ house. On the same
date he wrote a letter (Ex. 307) to the respondent’s father
reminding him that he, the appellant, had accepted a girl
“who had returned from the Mental Hospital”. On April 21,
1961 he wrote it letter (Ex. 309) to the Director of Social
Welfare, Delhi Administration, in which he took especial
care to declare that the respondent “was in the Poona Mental
Hospital as a lunatic before the marriage”. The relevance
of these reiterations regarding the so-called insanity of
the
991
respondent, particularly in the last letter, seems only
this, that the appellant was preparing ground for a decree
of divorce or of annulment of marriage. He was surely not
so naive as to believe that the Director of Social Welfare
could arrange to “give complete physical and mental rest” to
the respondent. Obviously, the appellant was anxious to
disseminate the information as widely as possible that the
respondent was of unsound mind.

On May 6, 1961 the respondent sent a reply (Ex. 314) to the
appellant’s letter, Ex. 305, dated April 20, 1961. She
expressed her willingness to go back to Poona as desired by
him, if he could make satisfactory arrangements for her stay
there. But she asserted that as a wife she was entitled to
live with him and there was no purpose in her living at
Poona “so many miles away from Delhi, without your shelter”.
In regard to the appellant’s resolve that he will not bear
the expenses incurred by her, she stated that not a pie
remitted by him will be illspent and that, whatever amount
he would send her will be, accounted for fully.
It is in this background that on May 19, 1961 the respondent
wrote the letter Ex. 318 to the Government. When asked by
the Government to offer his explanation, the appellant by
his reply Ex. 323 dated July 19, 1961 stated that the
respondent needed mental treatment, that she may have
written the letter Ex. 318 in a “madman’s frenzy” and that
her father had “demoralised” her. In his letter Ex. 342
dated November 23 , 1961 to the respondent’s father, he
described the respondent as “‘your schizophrenic daughter”.
Considered in this context, the allegations made by the
respondent in her letter Ex. 318 cannot revive the original
cause of action. These allegations were provoked by the
appellant by his persistent and purposeful accusation,
repeated times without number, that the respondent was of
unsound mind. He snatched every chance and wasted no oppor-
tunity to describe her as a mad woman which, for the
purposes of this appeal, we must assume to be wrong and
unfounded. He has been denied leave to appeal to this Court
from the finding of the High Court that his allegation that
the respondent was of unsound mind is baseless. He also
protested that he was not liable to maintain the respondent.
It is difficult in these circumstances to accept the
appellant’s argument either that the respondent deserted him
or that she treated him with cruelty after her earlier
conduct was condoned by him.

It is true that the more serious the original offence, the
less grave need be the subsequent acts to constitute a
revival(1) and in cases of cruelty, “very slight fresh
evidence is needed to show a resumption of the cruelty. for
cruelty of character is bound to show itself in conduct and
behaviour, day in and day out, night in and night out”. 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 not give
(1) Cooper vs. Cooper (1950) W.N. 200 (H.L.)
(2) Per Scott L. J. in Batram vs. Batram (1944) p. 59 at p.

60.
992
to the condoning spouse a charter to malign the other
spouse. If this were so, the condoned spouse would be
required mutely to submit to the cruelty of the other spouse
without relief or remedy. The respondent ought not to have
described the appellant’s parents as “wicked” but that
perhaps is the only allegation in the letter Ex. 318 to
which exception may be taken. We find ourselves unable to
rely on that solitary circumstance to allow the revival of
condoned cruelty.

We therefore hold that the respondent was guilty of cruelty
but the appellant condoned it and the subsequent conduct of
the respondent is not such as to amount to a revival of the
original cause of action. Accordingly, we dismiss the
appeal and direct the appellant to pay the costs of the
respondent.

P. H. P.	    Appeal dismissed.
993