{"id":43144,"date":"1975-03-19T00:00:00","date_gmt":"1975-03-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/narayan-ganesh-dastane-vs-sucheta-narayan-dastane-on-19-march-1975"},"modified":"2018-08-20T19:56:02","modified_gmt":"2018-08-20T14:26:02","slug":"narayan-ganesh-dastane-vs-sucheta-narayan-dastane-on-19-march-1975","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/narayan-ganesh-dastane-vs-sucheta-narayan-dastane-on-19-march-1975","title":{"rendered":"Narayan Ganesh Dastane vs Sucheta Narayan Dastane on 19 March, 1975"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Narayan Ganesh Dastane vs Sucheta Narayan Dastane on 19 March, 1975<\/div>\n
Equivalent citations: 1975 AIR 1534, \t\t 1975 SCR (3) 967<\/div>\n
Author: Y Chandrachud<\/div>\n
Bench: Chandrachud, Y.V.<\/div>\n
           PETITIONER:\nNARAYAN GANESH DASTANE\n\n\tVs.\n\nRESPONDENT:\nSUCHETA NARAYAN DASTANE\n\nDATE OF JUDGMENT19\/03\/1975\n\nBENCH:\nCHANDRACHUD, Y.V.\nBENCH:\nCHANDRACHUD, Y.V.\nGOSWAMI, P.K.\nUNTWALIA, N.L.\n\nCITATION:\n 1975 AIR 1534\t\t  1975 SCR  (3) 967\n 1975 SCC  (2) 326\n CITATOR INFO :\n RF\t    1988 SC 121\t (7,10)\n\n\nACT:\nHindu\t   Marriage\t Act--Section\t   10(1)(b)\t and\n23(1)(a)(b)--Meaning   of   cruelty--Burden  of\t  proof\t  in\nmatrimonial   matters--Whether\tbeyond\treasonable   doubt--\nCondonation--of cruelty--Whether sexual intercourse  amounts\nto condonation--Whether condonation is\tconditional--Revival\nof cruelty.\nCode of Civil Procedure--Section 100 and 103--Powers of High\nCourt in second appeal.\nEvidence Act--Section 3--Proof, meaning of.\n\n\n\nHEADNOTE:\nThe  appellant\thusband filed a petition  for  annulment  of\nmarriage on the round of fraud, for divorce on the ground of\nunsoundness  of\t mind  and for judicial\t separation  on\t the\nground\tof  cruelty.  The appellant and\t respondent  possess\nhigh  educational  qualifications and they were\t married  in\n1956.\tTwo children were born of the marriage one  in\t1957\nand the other in 1959.\nThe  Trial  Court  rejected  the  contention  of  fraud\t and\nunsoundness  of mind.  It, however, held the wife guilty  of\ncruelty\t and  on that ground passed a  decree  for  judicial\nseparation.  Both sides went in appeal to the District Court\nwhich dismissed the husband's appeal and allowed the wife's.\nThe  husband then filed a Second Appeal in the\tHigh  Court.\nThe High Court dismissed that appeal.\nOn appeal to this Court,\nHELD  (i)  Normally  this Court would  not  have  gone\tinto\nevidence especially as the High Court itself could not\thave\ngone into the evidence in second appeal.  Section 100 of the\nC.P.C.\trestricts  the\tjurisdiction of the  High  Court  in\nsecond\tappeal to questions of law or to substantial  errors\nor  defects  in\t the procedure\twhich  might  possibly\thave\nproduced  error or defect in the decision of the  case\tupon\nmerits.\t The High Court came to the conclusion-that both the\ncourts\tbelow had failed to apply the correct principles  of\nlaw  in determining the issue of cruelty.   Accordingly\t the\nHigh Court proceeded to consider evidence for itself.  Under\ns. 103 C.P.C. the High Court can determine any issue of fact\nif the evidence on the record is sufficient but if the\tHigh\nCourt takes upon itself the duty of determining an issue  of\nfact, its powers to appreciate evidence would be subject  to\nthe  same restraining conditions to which the power  of\t any\ncourt  of facts is ordinarily subject.\tThe limits  of\tthat\npower  are  not wider for the reason that  the\tevidence  is\nbeing appreciated by the High Court and not by the  District\nCourt.\tWhile appreciating evidence, inferences may and have\nto be drawn but courts of facts have to remind themselves of\nthe  line  that\t divides  an  inference\t from  guess   work.\nNormally  this Court would have remanded the matter  to\t the\nHigh  Court  for a fresh consideration of the  evidence\t but\nsince  the proceedings were pending for 13 years  the  Court\nitself went into the evidence. [973 F-974 H]\n(ii) The burden of proof in a matrimonial petition-must\t lie\non the petitioner because ordinarily the burden lies on\t the\nparty  which affirms a fact, not on the party  which  denied\nit.  This principle accords with commonsense, as it is\tmuch\neasier to prove a positive than a negative.  The  petitioner\nmust, therefore. prove that the respondents had treated\t him\nwith cruelty within; the meaning of r. 10(1)(b) of the\tAct.\nBut the High Court was wrong in holding that the  petitioner\nmust  prove his case beyond a reasonable doubt.\t The  normal\nrule which governs civil proceedings is that a fact is\tsaid\nto  be\testablished  if it is  proved  by  preponderance  of\nprobabilities.\tUnder s. 3 of the Evidence Act a act is said\nto be. proved when the court either believes it to exist  or\nif  considers its existence so probable that a\tprudent\t man\nought,\tin  the circumstances, to act upon  the\t supposition\nthat  it exists.  The first step in this process to fix\t the\nprobabilities. the second to weigh them.  The impossible  is\nweeded\n968\nout  in\t the  first stage, the\timprobable  in\tthe  second.\nWithin the wide range, of probabilities the Court has  often\na  difficult  choice  to make but it is\t this  choice  which\nultimately    determines   where   the\t preponderance\t  of\nprobabilities  lies.   Important issues like the  status  of\nparties demand closer scrutiny than those like the loan on a\npromissory note.  Proof beyond reasonable doubt is proof  by\na higher standard which generally governs criminal trials or\ntrials\tinvolving  enquiries into issues  of  quasi-criminal\nnature.\t It is wrong to import such considerations in trials\nof  a  purely civil nature.  Neither s.10 nor s. 23  of\t the\nHindu  Marriage Act requires that the petitioner must  prove\nhis case beyond reasonable doubt S. 23 confers on the  court\nthe power to pass a decree if it is satisfied on the matters\nmentioned   in\t Clauses  (a)  to  (e)\tof   that   Section.\nConsidering  that proceedings under the Act are\t essentially\nof  a civil nature the word 'satisfied' must mean  satisfied\non a preponderance of probabilities and not satisfied beyond\na  reasonable  doubt.\tThe  society  has  a  stake  in\t the\ninstitution of marriage and, therefore, the erring spouse is\ntreated\t not  as a mere defaulter but as an  offender.\t But\nthis social philosophy, though it may have a bearing on\t the\nneed  to have the clearest proof of an allegation before  it\nis accepted as a ground for- the dissolution of marriage, it\nhas  no\t bearing  on the standard of  proof  in\t matrimonial\ncases.\t In  England, a view was at one time  taken  that  a\npetitioner  in a matrimonial petition must establish his  or\nher case beyond a reasonable doubt but the House of Lords in\nBlyth  v. Blyth has held that the grounds of divorce or\t the\nbars  to  the divorce May be proved by\ta  preponderance  of\nprobability.   The High Court of Australia has also taken  a\nsimilar view. [975 A-976 B]\n(iii) On the question of condonation of cruelty, a  specific\nprovision  of  a specific enactment has to  be\tinterpreted,\nnamely\ts.  10(1) (b).\tThe enquiry, therefore,\t has  to  be\nwhether\t the  conduct  charged\tas  cruelty  is\t of  such  a\ncharacter  as  to  cause in the mind  of  the  petitioner  a\nreasonable apprehension that it will be harmful or injurious\nfor  him to live with the respondent.  It is not  necessary,\nas under the English Law, that the cruelty must be of such a\ncharacter  as to cause danger to life, limb or health or  as\nto give rise to a reasonable apprehension of such a  danger.\nIt  is\trisky  to rely on English decisions  in\t this  field\nalthough  awareness  of foreign decisions can  be  a  useful\nguide  in  interpreting our laws.  The apprehension  of\t the\npetitioner that it will be harmful or injurious to live with\nthe other party has to be reasonable.  It is, however, wrong\nto  import the concept of a reasonable man as known  to\t the\nlaw  of negligence for judging matrimonial  relations.\t The\nquestion  is  not whether the conduct would be\tcruel  to  a\nreasonable   person  or\t a  person  of\taverage\t or   normal\nsensibilities  but whether it would have that effect on\t the\naggrieved spouse.  That which may be cruel to one person may\nbe  laughed off by another and what may not be cruel  to  an\nindividual  under  one set of circumstances may\t be  extreme\ncruelty\t under another set of circumstances.  The Court\t has\nto deal not with an ideal husband and an ideal wife but with\nthe  particular man and woman before it.  The only rider  is\nthat  of s. 23(1)(a) of the Act that the relief\t prayed\t for\ncan  be\t decreed  only\tif  the\t petitioner  is\t not  taking\nadvantage of his own wrong. [977 D-G; 978 C-F; 979 A]\n(iv) Acts like the tearing of the Mangal Sutra, locking\t out\nthe  husband  when  he is due to  arrive  from\tthe  office,\nrubbing\t of chilly powder on the tongue of an infant  child,\nbeating\t a  child  mercilessly\twhile  in  high\t fever\t and\nswitching  on the light at night and sitting by the  bedside\nof  the\t husband merely to nag him are acts  which  tend  to\ndestroy\t the legitimate ends and objects of matrimony.\t The\nconduct of wile amounts to cruelty within the meaning of  s.\n10(1) (b) of the Act.  The threat that she would put an\t end\nto her own life or that she will set the house on fire,\t the\nthreat that she will make the husband lose his job and\thave\nthe matter published in newspapers and the persistent abuses\nand insults hurled at the husband and his parents are all of\nso  grave an order as to 'imperil the appellant's  sense  of\npersonal  safety,  mental happiness,  job  satisfaction\t and\nreputation. [985 B-E]\n(v)  In\t any proceeding under the Act, whether\tdefended  or\nnot,  the  relief  prayed for can be  decreed  only  if\t the\npetitioner  has not condoned the cruelty.  The wife did\t not\ntake  up the plea of condonation in her\t written  statement.\nThe Trial Court did not frame any issue of condonation.\t The\nDistrict Court\n969\ndid not address itself on the question of condonation  since\nit  did not find the conduct of the wife to be\tcruel.\t The\nHigh  Court held that the conduct of the wife was not  cruel\nand  in\t any  case it was condoned.  S.\t 23  (1)  (b)  casts\nobligation  on\tthe  court  to\tconsider  the  question\t  of\ncondonation.\tCondonation   means   forgiveness   of\t the\nmatrimonial  offence and restoration of spouses to the\tsame\nposition  as  he  or she  occupied  before  the\t matrimonial\noffence\t was committed.\t Cruelty generally does not  consist\nof  a single isolated act.  It consists in most cases  of  a\nseries\tof acts spread over a period of time.  Law does\t not\nrequire\t that  at the first appearance of a cruel  act,\t the\nother  spouse  must  leave the\tmatrimonial  home  lest\t the\ncontinued coharbitation be construed as condonation.  Such a\nconstruction   will   hinder  reconciliation   and   thereby\nfrustrate the benign purpose of marriage laws.\tThe evidence\non condonation consists in this case in the fact that spouse\nled  a\tnormal\tsexual\tlife despite  the  various  acts  of\ncruelty.   This\t is  not  a  case  where  the  spouse  after\nseparation  indulge in stray acts of sexual  intercourse  in\nwhich  case the necessary intent to forgive and restore\t may\nbe  said to be lacking.\t Such stray acts may bear more\tthan\none  explanation  but  if during  cohabitation\tthe  spouses\nuninfluenced by the conduct of the offending spouse, lead  a\nlife  of  intimacy which  characterised\t normal\t matrimonial\nrelationship,\tthe  intent  to\t forgive  and  restore\t the\noffending  spouse to the original status way  reasonably  be\ninferred.   There  is then no scope for imagining  that\t the\nconception of the child could be the result of a single\t act\nof sexual intercourse and that such an act could be a  stark\nanimal\tact  unaccompanied by the nobler graces\t of  marital\nlife.\tSex  plays  an important role in  married  life\t and\ncannot\tbe  separated  from  other  factors  which  lend  to\nmatrimony  a sense of fruition and  fulfilment.\t  Therefore,\nevidence  showing that the spouse led a normal\tsexual\tlife\neven  after serious acts of cruelty by one spouse  is  proof\nthat the other spouse condoned that cruelty.  Intercourse in\ncircumstances\tas  obtained  here  would  raise  a   strong\ninference    of\t  condonation.\t  That\t inference    stands\nuncontradicted.\t  the  husband\tnot  having  explained\t the\ncircumstances In which hecame to lead and live a normal\nsexual life,\n\t\t [985 G-987 B]\n(vi)  But condonation of a matrimonial offence is not to  be\nlikened\t to a Presidential pardon which once  granted  wipes\nout   the   guilt  beyond  the\t possibility   of   revival.\nCondonation is always subject to the implied condition\tthat\nthe  offending spouse will not commit a further\t matrimonial\noffence either of the same variety as the one condoned or of\nany  other  variety.  No matrimonial offence  is  erased  by\ncondonation.  It is obscured but not obliterated.   Condoned\ncruelty\t  can,\ttherefore,  be\trevived.   For\trevival\t  of\ncondonation  it is not necessary that the conduct should  be\nenough by itself to found a degree for judicial\t separation.\nThe wife in not allowing the husband access to the  children\ncannot be said to have revived the earlier cruelty since the\nchildren  were of tender age and the only person  who  could\nescort\tthem had left or had to leave the  matrimonial\thome\nfor  good.   The subsequent conduct of the wife\t has  to  be\nassessed  in the context in which the husband behaved.\t The\nhusband\t persistently  accused\tthe  wife  of  insanity\t and\nrefused\t to maintain her.  In that context, the\t allegations\nmade  by  the wife in her letter to  the  Government  cannot\nrevive the original cause of action, though it is true\tthat\nmore serious the original offence the less grave need be the\nsubsequent act to constitute revival.\n\t\t      [987 C; 988 C-D, G-H; 991 E-H]\nHeld, dismissing the appeal,\nThat the wife was guilty of cruelty but the husband condoned\nit and the subsequent conduct of the wife was not such as to\namount to revival of the original cause of action. [992 B-C]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2224  of
\n1970.\n<\/p>\n
From the judgment and order dated the 19th February, 1969 of
\nthe Bombay High Court in Second Appeal No. 480 of 1968.
\nV. M. Tarkunde, S. Bhandare, P. H. Parekh and Manju Jaitely,
\nfor the appellant.\n<\/p>\n
V.  S.\tDesai,\tS.  B.\tWad  and  Jayashree  Wad,  for\t the
\nrespondents.\n<\/p>\n
970<\/span><\/p>\n
The Judgment of the Court was delivered by
\nCHANDRACHUD, J.-This is a matrimonial dispute arising out of
\na  petition  filed  by the appellant for  annulment  of\t his
\nmarriage with the respondent or alternatively for divorce or
\nfor  judicial separation.  The annulment was sought on\tthe-
\nground\tof  fraud, divorce on the ground of  unsoundness  of
\nmind and judicial separation on the ground of cruelty.
\nThe  spouses possess high academic qualifications  and\teach
\none claims a measure. of social respectability and  cultural
\nsophistry.  The evidence shows some traces of these.  But of
\nthis  there need be no doubt,: the voluminous  record  which
\nthey have collectively built up in the case contains a\tfair
\nreflection of their rancour and acrimony,
\nThe appellant, Dr. Narayan Ganesh Dastane, passed his  M.Sc.
\nin  Agriculture from the Poona University.  He was  sent  by
\nthe  Government\t of India to Australia in the  Colombo\tPlan
\nScheme.\t  He obtained his Doctorate in\tIrrigation  Research
\nfrom  an  Australian  University and returned  to  India  in
\nApril, 1955.  He worked for about 3 years as an Agricultural
\nResearch Officer and in October, 1958 he left Poona to\ttake
\ncharge\tof a new post as an Assistant Professor of  Agronomy
\nin  the\t ‘Post-Graduate School, Pusa Institute,\t Delhi.\t  At
\npresent\t be is said to be working on a\tforeign\t assignment.
\nHis father was a solicitor-cum lawyer practising in Poona.
\nThe respondent, Sucheta, comes from Nagpur but she spent her
\nformative years mostly in Delhi.  Her father was transferred
\nto  Delhi  in  1949 as an Under Secretary  in  the  Commerce
\nMinistry  of the Government of India and she came  to  Delhi
\nalong  with  the rest of the family.  She passed  her  B.Sc.
\nfrom the Delhi University in 1954 and spent a year in  Japan
\nwhere her father was attached to the Indian Embassy.   After
\nthe  rift in her marital relations, she obtained a  Master’s
\nDegree in Social Work.\tShe has done field work in  Marriage
\nConciliation  and Juvenile Delinquency.\t She is\t at  present
\nworking in the Commerce and Industry Ministry, Delhi.
\nIn  April, 1956 her parents arranged her marriage  with\t the
\nappellant.  But before finalising the proposal, her  father-
\nB.  R. Abhyankarwrote two letters to the appellant’s  father
\nsaying\tin  the first of these that the\t respondent  “had  a
\nlittle\tmisfortune before going to Japan in that she  had  a
\nbad attack of sunstroke which affected her mental  condition
\nfor  sometime”.\t In the second letter which followed  at  an
\ninterval of two days, “cerebral malaria” was mentioned as an
\nadditional  reason of the mental affectation.\tThe  letters
\nstated\tthat  after a course of treatment  at  the  Yeravada
\nMental\tHospital,  she was cured : “you find her as  she  is
\ntoday”.\t  The  respondent’s  father  asked  her\t appellant’s
\nfather to discuss the matter, if necessary, with the doctors
\nof  the\t Mental Hospital or with one Dr. P. L.\tDeshmukh,  a
\nrelative of the respondent’s mother.  The letter was written
\navowdely’in order that the appellant and his people  “should
\nnot  be in the dark about an important episode” in the\tlife
\nof the respondent, which “fortunately, had ended happily”.
\nDr.  Deshmukh confirmed what was stated in the\tletters\t and
\nbeing  content\twith his assurance, the\t appellant  and\t his
\nfather made no enqui-\n<\/p>\n
971<\/span><\/p>\n
ries  with the Yeravada Mental Hospital.  The  marriage\t was
\nperformed at Poona on May 13, 1956.  The appellant was\tthen
\n27 and the respondent 21 years of age.\n<\/p>\n
They  lived  at\t Arbhavi in District Belgaum  from  June  to
\nOctober,  1956.\t  On  November 1,  1956\t the  appellant\t was
\ntransferred to Poona where the two lived together till 1958.
\nDuring\tthis period a girl named Shubha was born to them  on
\nMarch  11,  1957.  The respondent delivered in\tDelhi  where
\n,her parents lived and returned to Poona in June, 1957 after
\nan absence, normal on such occasions, of about 5 months.  In
\nOctober, 1958 the appellant took a job in the Pusa Institute
\nof Delhi, On March 21, 1959 the second daughter, Vibha,\t was
\nborn.\t The  respondent  delivered  at\t Poona\t where\t the
\nappellant’s  parents lived and returned to Delhi in  August,
\n1959.\tHer  parents were living at this time  in  Djakarta,
\nIndonesia.\n<\/p>\n
In January, 1961, the respondent went to Poona to attend the
\nmarriage of the appellant’s brother, a doctor-by profession,
\nwho  has been given an adoption in the Lohokare\t family.   A
\nfortnight  after  the  marriage, on February  27,  1961\t the
\nappellant  who had also gone to Poona for the  marriage\t got
\nthe  respondent\t examined  by Dr. seth,\t a  Psychiatrist  in
\ncharge\tof the Yeravada Mental Hospital.  Dr. Seth  probably
\nwanted\tadequate  data to make his diagnosis  and  suggested
\nthat  he would like to have a few sittings exclusively\twith
\nthe respondent.\t For reasons good or bad, the respondent was
\naverse\tto submit herself to any such scrutiny.\t Either\t she
\nherself\t or  both  she and the appellant  decided  that\t she
\nshould\tstay  for some time with a relative of\tbers,  Mrs-.
\nGokhale.   On the evening of the 27th, she packed  her\ttit-
\nbits and the appellant reached her to Mrs. Gokhale’s  house.
\nThere\twas  no\t consultation  thereafter  with\t Dr.   Seth.
\nAccording to the appellant, she had promised to see Dr, Seth
\nbut she denies that she made any such promise.\tShe believed
\nthat  the appellant was building up a case that she  was  of
\nunsound mind and she was being lured to walk into that trap.
\nFebruary  1961 was the last that they lived together-.\t But
\non  the\t day of parting she was three months in\t the  family
\nway.  The third child, again a girl, named Pratibha was born
\non  August 19, 1961 when her parents were in the midst of  a
\nmarital crisis.\n<\/p>\n
Things\thad by then come to an impossible pass.\t  And  close
\nrelatives instead of offering wise counsel were fanning\t the
\nfire  of discord that was devouring the marriage.  A
\ngentleman  called  Gadre whose letter-head  shows  an  “M.A.
\n(Phil.)\t M.A.  (Eco.)  LL.B.”, is a maternal  uncle  of\t the
\nrespondent.   On-March\t2,  1961  he  had  written  to\ttile
\nappellant’s  father a pseudonymous letter now proved  to  be
\nhis, full of malice and sadism.\t He wrote :\n<\/p>\n
\t      “I on my part consider myself to be the father
\n\t      of  ‘Brahmadev …………. This is only\t the
\n\t      beginning.  From the spark of your foolish and
\n\t      half-baked  egoism,  a  big  conflagration  of
\n\t      family  quarrels will break out and  all\twill
\n\t      perish therein This image of the mental  agony
\n\t      suffered\tby all your kith and’ kin  gives  me
\n\t      extreme happiness…… You worthless  person,
\n\t      who cherishes a desire to spit on my face, now
\n\t      behold that all the world is going to spit  on
\n\t      your old cheeks.\n<\/p><\/blockquote>\n
972<\/span><\/p>\n
\t      So  why  should  I loose\tthe  opportunity  of
\n\t      giving  you a few severe slaps on your  cheeks
\n\t      and  of  fisting your ear.  It is\t my  earnest
\n\t      desire that the father-in-law should beat your
\n\t      son with foot-ware in a public place.”\n<\/p><\/blockquote>\n
On March 11, 1961 the appellant returned to Delhi all alone.
\nTwo  days  later the respondent followed him  but  she\twent
\nstraight to her parents’ house in )Delhi.  On the 15th,\t the
\nappellant wrote a letter to the police asking for protection
\nas  he\tfeared\tdanger to his  life  from  the\trespondent’s
\nparents and relatives.\tOn the 19th, the respondent saw\t the
\nappellant but that only gave to the parties one more  chance
\nto give vent to mutual dislike and distrust.  After a  brief
\nmeeting,  she left the broken home for good.  On  the  20th,
\nthe  appellant once again wrote to the police  renewing\t his
\nrequest for protection.\n<\/p>\n
On March 23, 1961 the respondent wrote to the appellant com-
\nplaining  against his conduct and asking for money  for\t the
\nmaintenance  of herself and the daughters.  On May 19,\t1961
\nthe respondent wrote a letter to the Secretary, Ministry  of
\nFood and Agriculture, saying that the appellant had deserted
\nher, that he had treated her with extreme cruelty and asking
\nthat  the Government should make separate provision for\t her
\nmaintenance.  On March 25, her statement was recorded by  an
\nAssistant  Superintendent  of Police, in which\tshe  alleged
\ndesertion  and\till-treatment  by  the\tappellant.   Further
\nstatements were recorded by the police and the Food Ministry
\nalso   followed\t up  respondent’s  letter  of  May  19\t but
\nultimately  nothing came out of these complaints and  cross-
\ncomplaints.\n<\/p>\n
As stated earlier, the third daughter, Pratibha, was born on
\nAugust 19, 1961.  On November 3, 1961 the appellant wrote to
\nrespondent’s father complaining of respondent’s conduct\t and
\nexpressing  regret  that not even a  proper  invitation\t was
\nissued\tto  him when the naming ceremony of  the  child\t was
\nperformed.   On\t December 15, 1961 the\tappellant  wrote  to
\nrespondent’s father stating that he had decided to go to the
\ncourt  for  seeking  separation from  the  respondent.\t The
\nproceedings out of which this appeal arises were  instituted
\non February 19, 1962.\n<\/p>\n
The parties are Hindus but we do not propose, as is commonly
\ndone  and  as has been done in this case,  to  describe\t the
\nrespondent  as a “Hindu wife in contrast to non-Hindu  wives
\nas if wotmen professing this or that particular religion are
\nexclusively privileged in the matter of good sense,  loyalty
\nand conjugal kindness.\tNor shall we refer to the  appellant
\nas a “Hindu husband” as if that species unfailingly projects
\nthe  image of tyrant husbands.\tWe propose to  consider\t the
\nevidence  on its merits, remembering of course the  peculiar
\nhabits, ideas, susceptibilities and expectations of  persons
\nbelonging  to  the  strata of society  to  which  these\t two
\nbelong.\t All circumstances which constitute the ,occasion or
\nsetting for the conduct complained of have relevance but  we
\nthink that no assumption can be made that respondent is\t the
\noppressed and appellant the oppressor.\tThe evidence in\t any
\ncase ought to bear a secular examination.\n<\/p>\n
The  appellant\tasked  for annulment of his  marriage  by  a
\ndecree\tof  nullity under section 12(1) (c)  of\t ‘The  Hindu
\nMarirage Act’, 25 of
\n973<\/span>
\n1955,  (“The  Act”) on the ground that his  consent  to\t the
\nmarriage was obtained by fraud.\t Alternatively, he asked for
\ndivorce\t under section 13 (1) (iii) on the ground  that\t the
\nrespondent  was incurably of unsound mind for  a  continuous
\nperiod\tof not less than three years  immediately  preceding
\nthe  presentation  of  the  petition.\tAlternatively,\t the
\nappellant asked for Judicial separation under section  10(1)\n<\/p>\n
(b)  on the ground that the respondent had treated him\twith
\nsuch  cruelty as to cause a reasonable apprehension  in\t his
\nmind that. it would be harmful or injurious for him to\tlive
\nwith her.\n<\/p>\n
The  appellant\talleged\t that prior  to\t the  marriage,\t the
\nrespondent  was treated in the Yeravada Menfal Hospital\t for
\nSchizophrenia  but her father fraudulently represented\tthat
\nshe  was  treated for sun-stroke and cerebral  malaria.\t The
\ntrial  court rejected this contention. It also rejected\t the
\ncontention    that   the   respondent\twas    of    unsound
\nmind.It,however,  held\tthat the respondent  was  guilty  of
\ncruelty\t and on that ground it passed a decree for  judicial
\nseparation.\n<\/p>\n
Both  sides  went  in appeal to\t the  District\tCourt  which
\ndismissed   the\t  appellant’s\tappeal\t and   allowed\t the
\nrespondent’s, with the result that the petition filed by the
\nappellant stood wholly dismissed.\n<\/p>\n
The  appellant then filed Second Appeal No. 480 of  1968  in
\nthe Bombay High Court.\tA learned single Judge of that court
\ndismissed that appeal by a judgment dated February 24, 1969.
\nThis Court granted to the appellant special leave to appeal,
\nlimited to the question of judicial separation on the ground
\nof cruelty.\n<\/p>\n
We  are\t thus not concerned with the  question\twhether\t the
\nappellant’s  consent to the marriage was obtainede by  fraud
\nor  whether the respondent bad been of unsound mind for\t the
\nrequisite period preceding the presentation of the petition.
\nThe  decision-of the-High Court on those questions  must  be
\ntreated as final and can not be reopened.\n<\/p>\n
In  this  appeal  by special  leave,  against  the  judgment
\nrendered  by the High Court in Second Appeal, we  would\t not
\nhave  normally permitted the parties to take us through\t the
\nevidence in the case.  Sitting in Second Appeal, it was\t not
\nopen  to  the High Court itself\t to  reappreciate  evidence.
\nSection\t 100  of the Code of Civil Procedure  restricts\t the
\njurisdiction of the High Court in Second appeal to questions
\nof law or to substantial errors or defects in the  procedure
\nwhich  may  possibly have produced error or  defect  in\t the
\ndecision  of the case upon the merits.\tBut the\t High  Court
\ncame  to  the  conclusion that both  the  courts  below\t had
\n“failed\t  to  apply  the  correct  principles  of   law\t  in
\ndetermining  the issue of cruelty”.  Accordingly,  the\tHigh
\nCourt proceeded to consider the evidence for itself and came
\nto  the\t conclusion  independently that\t the  appellant\t had
\nfailed\tto establish that the respondent had treat him\twith
\ncruelty.   A  careful consideration of the evidence  by\t the
\nHigh Court ought to be enough assurance that the finding  of
\nfact  is correct and it is not customary for this  Court  in
\nappeals\t under\tArticle 136 of the Constitution to  go\tinto
\nminute\tdetails of evidence and weigh them one\tagainst\t the
\nother,\tas  if for the first  time.   Disconcertingly,\tthis
\nnormal process is beset with practical difficulties.\n<\/p>\n
974<\/span><\/p>\n
In judging of the conduct of the respondent, the High  Court
\nassumed\t that  the  words of abuse or  insult  used  by\t the
\nrespondent
\n\t      “could  not  have been  addressed\t in  vacuum.\n<\/p>\n
\t      Every  abuse,  insult, remark or\tretort\tmust
\n\t      have been probably in exchange for remarks and
\n\t      rebukes from the husband…………. a  court
\n\t      is  bound\t to consider the  probabilities\t and
\n\t      infer,  as  I have done, that they  must\thave
\n\t      been  in the context of the  abuses,  insults,
\n\t      rebukes  and remarks made by the\thusband\t and
\n\t      without evidence on the record with respect to
\n\t      the  conduct  of the husband  in\tresponse  to
\n\t      which the wife behaved in a particular way  on
\n\t      each occasion, it is difficult, if not  impos-
\n\t      sible to draw inferences against the wife.”
\nWe  find this approach difficult to accept.   Under  section
\n103  of the Code of Civil Procedure, the High Court may,  if
\nthe  evidence  on the record is\t sufficient,  determine\t any
\nissue  of  ‘fact necessary for the disposal  of\t the  appeal
\nwhich  has not been determined by the lower appellate  court
\nor which has been wrongly determined by such court by reason
\nof  any\t illegality, omission, error or defect\tsuch  as  is
\nreferred to in sub-section (1) of section 100.\tBut, if\t the
\nHigh Court takes upon itself the duty to determine an  issue
\nof fact its power to appreciate evidence would be subject to
\nthe  same restraining conditions to which the power  of\t any
\ncourt  of facts is ordinarily subject.\tThe limits  of\tthat
\npower  are  not wider for the reason that  the\tevidence  is
\nbeing appreciated by the High Court and not by the  District
\nCourt.\t While\tappreciating ,evidence, inferences  may\t and
\nhave  to  be  drawn  but courts\t of  facts  have  to  remind
\nthemselves of the line that divides an inference from guess-
\nwork.\tIf it is proved, as the High Court thought  it\twas,
\nthat  the respondent had uttered words of abuse and  insult,
\nthe  High Court was entitled to infer that she had acted  in
\nretaliation,  provided of course there was evidence,  direct
\nor  circumstantial, to justify such an inference.   But\t the
\nHigh  Court  itself felt that there was no evidence  on\t the
\nrecord with regard to the conduct of the husband in response
\nto  which  the\twife could be said to have  behaved  in\t the
\nparticular manner.  The High Court reacted to this situation
\nby  saying  that since there was no evidence  regarding\t the
\nconduct of the husband, “it is difficult, if not impossible,
\nto  draw  inferences  against the wife”.  If  there  was  no
\nevidence   that\t  the  husband\thad  provoked\tthe   wife’s
\nutterances, no inference could be drawn against the husband.
\nThere was no question of drawing any inferences against\t the
\nwife   because,\t according  to\tthe  High  Court,   it\t was
\nestablished  on\t the  evidence\tthat  she  had\tuttered\t the
\nparticular words of abuse and insult.\n<\/p>\n
The  approach  of the High Court is thus erroneous  and\t its
\nfindings are vitiated.\tWe would have normally remanded\t the
\nmatter\tto the High Court for a fresh consideration  of\t the
\nevidence  but this proceeding has been pending for 13  years
\nand  we\t thought  that rather than delay  the  decision\t any
\nfurther,  we should undertake for ourselves the\t task  which
\nthe High Court thought it should undertake under section 103
\nof  the\t Code.\t That makes it\tnecessary  to  consider\t the
\nevidence in the case.\n<\/p>\n
975<\/span><\/p>\n
But before doing so, it is necessary to clear the ground  of
\ncertain\t misconceptions, especially as they would appear  to
\nhave  influenced the judgment of the High Court.  First,  as
\nto the nature of burden of Proof which rests on a petitioner
\nin  a  matrimonial petition under the Act.   Doubtless,\t the
\nburden\tmust lie on the petitioner to establish his  or\t her
\ncase  for,  ordinarily, the burden lies on the\tparty  which
\naffirms\t a  fact, not on the party which  denies  it.,\tThis
\nprinciple accords with commonsense as it is so much  earlier
\nto  prove a positive than a negative.  The  petitioner\tmust
\ntherefore  prove  that the respondent has treated  him\twith
\ncruelty within the meaning of section 10 (1) (b) of the Act.
\nBut  does the law require, as the High Court has held,\tthat
\nthe petitioner must prove his case beyond a reasonable doubt
\n?  In other words, though the burden lies on the  petitioner
\nto establish the charge of cruelty, what is the standard  of
\nproof to be applied in order Lo judge whether the burden has
\nbeen discharged ?\n<\/p>\n
The  normal rule which governs civil proceedings is  that  a
\nfact  can  be said to be estabilshed if it is  proved  by  a
\npreponderance of probabilities. This  is for  the  reason
\nthat under the Evidence Act, section 3, a fact issaid to be
\nproved\twhen  the  court  either believes  it  to  exist  or
\nconsidersits  existence\t so  probable that  a  prudent\tman
\nought,\tunder the circumstances of the particular  case,  to
\nact  upon  the\tsupposition  that  it  exists.\t The  belief
\nregarding  the existence of a fact may thus be founded on  a
\nbalance\t  of  probabilities.   A  prudent  man\tfaced\twith
\nconflicting  probabilities concerning a fact-situation\twill
\nact on the supposition that the fact exists, if on  weighing
\nthe various probabilities he finds that the preponderance is
\nin  favour  of the existence of the particular fact.   As  a
\nprudent\t man,  so the court applies this  test\tfor  finding
\nwhether a fact in issue can be said to be proved.  The first
\nstep in this process is to fix the probabilities, the second
\nto  weigh them, though the two may often  intermingle.\t The
\nimpossible is weeded out at the first stage, the  improbable
\nat  the second.\t Within the wide range of probabilities\t the
\ncourt  has often a difficult choice to make but it  is\tthis
\nchoice which ultimately determines where. the  preponderance
\nof  probabilities lies.\t Important issues like\tthose  which
\naffect\tthe status of parties demand a closer scrutiny\tthan
\nthose  like  the loan on a promissory note “the\t nature\t and
\ngravity\t of  an issue necessarily determines the  manner  of
\nattaining  reasonable  satisfaction  of\t the  truth  of\t the
\nissue”(1)  ;  or  as said by Lord Denning,  “the  degree  of
\nprobability depends on the subject-matter.  In proportion as
\nthe  offence is grave, so ought the proof to be clear”\t(2).
\nBut  whether the issue is one of cruelty or of a loan  on  a
\npromote, the test to apply is whether on a preponderance  of
\nrobabilities  the relevant fact is proved.  In\tcivil  cases
\nthis,  normally,  is  the standard of  proof  to  apply\t for
\nfinding whether the burden of proof is discharged.
\nProof beyond reasonable doubt is proof by a higher  standard
\nwhich generally governs criminal trials or trials  involving
\ninquiry into issues of a quasi-criminal nature.\t A  criminal
\ntrial  involves the liberty of the subject which may not  be
\ntaken away on a mere preponderance of probabilities.  If the
\nprobabilities are so’ nicely balanced that a reasonable,
\n(1)  Per Dixon,J.in Wright v.Wright (1948)77 C.L.R.191at  p.\n<\/p>\n
210.
\n(2) Blyth v. Blyth, [1966] 1 A.E.R. 524 at 536.\n<\/p>\n
976<\/span><\/p>\n
not a vascillating, mind cannot find where the preponderance
\nlies, a doubt arises regarding the existence of the fact  to
\nbe  proved and the benefit of such reasonable doubt goes  to
\nthe  accused.  It is wrong to import such considerations  in
\ntrials of a purely civil nature.\n<\/p>\n
Neither\t section 10 of the Act which enumerates the  grounds
\non which a petition for judicial separation may be presented
\nnor  section 23 which governs the jurisdiction of the  court
\nto  pass a decree in any proceeding under the  Act  requires
\nthat the petitioner must prove his case beyond a  reasonable
\ndoubt.\tSection 23 confers on the court the power to pass  a
\ndecree if it is “satisfied” on matters mentioned in  clauses\n<\/p>\n
(a)  to\t (e) of the section.  Considering  that\t proceedings
\nunder  the Act are essentially of a civil nature,  the\tword
\n“satisfied”  must  mean\t “satisfied on\ta  preponderance  of
\nprobabilities”\tand  not  “satisfied  beyond  a\t  reasonable
\ndoubt”.\t Section 23 does not alter the standard of proof  in
\ncivil cases.\n<\/p>\n
The  misconception  regarding  the  standard  of  proof\t  in
\nmatrimonial cases arises perhaps from a loose description of
\nthe  respondent’s  conduct in such cases as  constituting  a
\n“matrimonial   offence”.   Acts\t of  a\tspouse\t which\t are
\ncalculated to impair the integrity of a marital union have a
\nsocial\tsignificance.\tTo mar’ or not to marry\t and  if  so
\nwhom, may well be a private affair but the freedom to  break
\na  matrimonial tie is not.  The society has a stake  in\t the
\ninstitution  of marriage and therefore the erring spouse  is
\ntreated\t not  as a mere defaulter but as an  offender.\t]But
\nthis social philosophy, though it may have a bearing on\t the
\nneed  to have the clearest proof of an allegation before  it
\nis  accepted as a ground for the dissolution of a  marriage,
\nhas  no\t bearing  on the standard of  proof  in\t matrimonial
\ncases.\n<\/p>\n
In England, a view was at one time taken that the petitioner
\nin  a matrimonial petition must establish his case beyond  a
\nreasonable  doubt  but in Blyth v. Blyth(P),  the  House  of
\nLords  held  by\t a majority that so far as  the\t grounds  of
\ndivorce\t  or  the  bars\t to  divorce  like   connivance\t  or
\ncondonation  are concerned, “the case; like any civil  case,
\nmay be proved by a preponderance of probability”.  The\tHigh
\nCourt of Austraila in Wright v. Wright (2) , has also  taken
\nthe  view that “the civil and not the criminal\tstandard  of
\npersuasion  applies to matrimonial causes, including  issues
\nof  adultery”.\t The High Court was therefore  in  error  in
\nholding\t that  the petitioner must establish the  charge  of
\ncruelty “beyond reasonable doubt”.  The High Court adds that
\n“This  must be in accordance with the law of evidence”,\t but
\nwe are not clear as to the implications of this observation.
\nThen,  as regards the meaning of “Cruelty”.  The High  Court
\non  this  question  begins with\t the  decision\tin  Moonshee
\nBazloor\t Rubeem v. Shamsoonnissa Begum(3), where  the  Privy
\nCouncil observed:\n<\/p>\n
\t      “The  Mohomedan law, on a question of what  is
\n\t      legal  cruelty  between Man  and\tWife,  would
\n\t      probably not differ materially from our own of
\n\t      which one of the most recent exposition is the
\n\t      following :- ‘There must be actual violence
\n(1) [1966] A.E.R. 524 at 536.\n<\/p><\/blockquote>\n
(2) 1948, 77 C.L.R. 191 at 210.\n<\/p>\n
(3) 11 Moore’s Indian Appeals 551.\n<\/p>\n
977<\/span><\/p>\n
\t      of  such a character as to  endanger  personal
\n\t      health   or  safety;  or\tthere  must   be   a
\n\t      reasonable apprehension of it’.”\n<\/p>\n
The  High Court then refers to the decisions of some of\t the
\nIndian Courts to illustrate “The march of the Indian  Courts
\nwith  the Englishs Courts” and cites the  following  passage
\nfrom  D.  Tolstoy’s  “The Law and Practice  of\tDivorce\t and
\nMatrimonial Causes” (Sixth Ed., p. 61):\n<\/p>\n
\t      “Cruelty which is a ground for dissolution  of
\n\t      marriage\t may  be  defined  as\twilful\t and
\n\t      unjustifiable  conduct of such a character  as
\n\t      to  cause\t danger\t to life,  limb\t or  health,
\n\t      bodily  or  mental, or as to give\t rise  to  a
\n\t      reasonable apprehension of such a danger.”\n<\/p><\/blockquote>\n
The  High  Court  concludes that  “Having  regard  to  these
\nprinciples  and\t the  entire evidence in  the  case,  in  my
\njudgment, I find that none of the acts complained of against
\nthe respondent can he considered to be so sufficiently grave
\nand  weighty  as to be described as cruel according  to\t the
\nmatrimonial law.”\n<\/p>\n
An awareness of foreign decisions could be a useful asset in
\ninterpreting our own laws.  But it has to be remembered that
\nwe have to interpret in this case a specific provision of  a
\nspecific  enactment, namely, section 10(1) (b) of  the\tAct.
\nWhat constitutes cruelty must depend upon the terms of\tthis
\nstatute which provides :\n<\/p>\n
\t      “10(1)  Either  party to a  marriage,  whether
\n\t      solemnized before or after the commencement of
\n\t      this  Act,  may  present\ta  petition  to\t the
\n\t      district\tcourt  praying\tfor  a\tdecree\t for
\n\t      judicial\tseparation  on the ground  that\t the
\n\t      other party-\n<\/p><\/blockquote>\n
\t      (b)  has\ttreated\t the  petitioner  with\tsuch
\n\t      cruelty as to cause areasonable
\n\t      apprehension  in\tthe mind of  the  petitioner
\n\t      that  it will be harmful or injurious for\t the
\n\t      petitioner to live with the other party;”\n<\/p><\/blockquote>\n
The inquiry therefore has to be whether the conduct  charged
\na,.- cruelty is of such a character as to cause in the\tmind
\nof the petitioner a reasonable apprehension that it will  be
\nharmful\t or injurious for him to live with  the\t respondent.
\nIt  is\tnot necessary, as under the English  law,  that\t the
\ncruelty must be of such a character as to cause “danger”  to
\nlife,  limb  or health or as to give rise  to  a  reasonable
\napprehension  of  such a danger.  Clearly, danger  to  life,
\nlimb  or  health  or a reasonable apprehension of  it  is  a
\nhigher requirement than a reasonable apprehension that it is
\nharmful or injurious for one spouse to live with the other.
\nThe  risk of relying on English decisions in this field\t may
\nbe shown by the learned Judge’s reference to a passage\tfrom
\nTolstoy\t (p. 63) in which the learned author, citing  Horton
\nv. Horton(1), says :\n<\/p>\n
\t      “Spouses take each other for better or  worse,
\n\t      and  it is not enough to show that  they\tfind
\n\t      life   together  impossible,  even  if   there
\n\t      results injury to health.”\n<\/p><\/blockquote>\n
(1) [1940] P. 187.\n<\/p>\n
978<\/span><\/p>\n
If the danger to health arises merely from the fact that the
\nspouses find it impossible to live together as where one  of
\nthe parties shows an attitude of indifference to the  other,
\nthe  charge of cruelty may perhaps fail.  But under  section
\n10(1) (b), harm or injury to health, reputation, the working
\ncareer\tor the like, would be an important consideration  in
\ndetermining whether the conduct of the respondent amounts to
\ncruelty.  Plainly, what we must determine is not whether the
\npetitioner has proved the charge of cruelty having regard to
\nthe  principles of English law, but whether  the  petitioner
\nproves that the respondent has treated him with such cruelty
\nas  to cause a reasonable apprehension in his mind  that  it
\nwill  be  harmful  or injurious for him\t to  live  with\t the
\nrespondent.\n<\/p>\n
One other matter which needs to be clarified is that  though
\nunder section 10(1) (b), the apprehension of the  petitioner
\nthat it will be harmful or injurious to live with the  other
\nparty  has  to\tbe reasonable, it is wrong,  except  in\t the
\ncontext\t of  such apprehension, to import the concept  of  a
\nreasonable man as known to the law of negligence for judging
\nof matrimonial relations.  Spouses are undoubtedly  supposed
\nand expected to conduct their joint venture as best as\tthey
\nmight  but  it is no function of a court  inquiring  into  a
\ncharge\tof  cruelty  to philosophise on\t the  modalities  of
\nmarried\t life.\t Some  one may want to keep  late  hours  to
\nfinish the day’s work and some one may want to get up  early
\nfor a morning round of golf.  The court cannot apply to\t the
\nhabits or hobbies of these the test whether a reasonable man
\nsituated  similarly will behave in a similar fashion.\t“The
\nquestion  whether the misconduct complained  of\t constitutes
\ncruelty\t and  the like for divorce  purposes  is  determined
\nprimarily  by  its effect upon the  particular\tperson\tcom-
\nplaining  of  the  acts.  The question is  not\twhether\t the
\nconduct would be cruel to a reasonable person or a person of
\naverage\t or normal sensibilities, but whether it would\thave
\nthat  effect upon the aggrieved spouse,.  That which may  be
\ncruel to one person may be laughed off by another, and\twhat
\nmay not be cruel to an individual under one set of  circums-
\ntances\t may  be  extreme  cruelty  under  another  set\t  of
\ncircumstances.”(1) The Court has to deal, not with an  ideal
\nhusband\t and ideal wife (assuming any such exist)  but\twith
\nthe particular man and woman before it.\t The ideal couple or
\na  near-ideal one will probably have no occasion to go to  a
\nmatrimonial court for, even if they may not be able to drown
\ntheir differences, their ideal attitudes may help them over-
\nlook  or gloss over mutual faults and failures.\t As said  by
\nLord Reid in his speech in Gollins v. Gollins (2).\n<\/p>\n
\t      “In  matrimonial\tcases we are  not  concerned
\n\t      with the reasonable man, as we are in cases of
\n\t      negligence.  We are dealing with this man\t and
\n\t      this woman and the fewer a priori\t assumptions
\n\t      we  make\tbout them the  better.\t In  cruelty
\n\t      cases  one can hardly ever even start  with  a
\n\t      presumption  that the parties  are  reasonable
\n\t      people,  because\tit is hard  to\timagine\t any
\n\t      cruelty case ever arising if both the  spouses
\n\t      think and behave as reasonable people.”\n<\/p><\/blockquote>\n
We  must therefore try and understand this Dr.\tDastane\t and
\nhis  wife Sucheta as nature has made them and as  they\thave
\nshaped their lives.\n<\/p>\n
(1)  American Jurisprudence, 2nd Ed., Vol. 24, p. 206.
\n(2)  [1963] 2 A.E.R. 966,970.\n<\/p>\n
979<\/span><\/p>\n
The  only rider is the interdict of section 23 ( 1 ) (a)  of
\nthe  Act that the relief prayed for can be decreed  only  if
\nthe court is satisfied that the petitioner is not in any way
\ntaking advantage of his own wrong.  Not otherwise.
\nWe  do\tnot propose to spend time on the  trifles  of  their
\nmarried\t life.\t Numerous incidents have been cited  by\t the
\nappellant   as\t constituting\tcruelty\t  but\tthe   simple
\ntrivialities which can truly be described as the reasonable,
\nwear and tear of married life have to be ignored.  It is  in
\nthe context of such trivialities that one says that  spouses
\ntake each other for better or worse.  In many marriages each
\nparty  can,  if\t it  so wills, discover\t many  a  cause\t for
\ncomplaint   but\t  such\t grievances   arise   mostly\tfrom
\ntemperamental\t  disharmony.\t  Such\t   disharmony\t  or
\nincompatibility is not cruelty and will not furnish a  cause
\nfor  the  dissolution of marriage.  We will  therefore\thave
\nregard\tonly  to grave and weighty  incidents  and  consider
\nthese to find what place they occupy on the marriage canvas.
\nThe  spouses  parted  company  on  February  27,  1961,\t the
\nappellant  filed his petition on February 19, 1962  and\t the
\ntrial began in September, 1964.\t The 3-1\/2 years’ separation
\nmust naturally have created many more misunderstandings\t and
\nfurther\t embitterment.\t In such an atmosphere, truth  is  a
\ncommon\tcasualty and therefore we consider it safer  not  to
\naccept the bare word of the appellant either as to what\t the
\nrespondent  said or did or as to the genesis of some of\t the
\nmore serious incidents.\t The evidence of the respondent\t too
\nwould  be open to the same criticism but the explanation  of
\nher  words and deeds, particularly of what she put  in\tcold
\nprint,\tmust  come  from her oral word and that\t has  to  be
\nexamined with care.\n<\/p>\n
The married life of these spouses is well-documented, almost
\nincredibly  documented.\t They have reduced to  writing\twhat
\ncrossed their minds and the letters which they have  written
\nto  each  other\t bear  evidence of the\tpass  to  which\t the
\nmarriage had come.  Some of these were habitually written as
\nthe  first thing in the morning like a morning cup  (if\t tea
\nwhile  some  were written in the silence of  mid-night\tsoon
\nafter the echo of harsh words had died down.  To think\tthat
\nthis  young couple could indulge in such an orgy of  furious
\nletter-writing is to have to deal with a problem out of\t the
\nordinary  for  it is seldom that a husband and\twife,  while
\nsharing a common home, adopt the written word as a means  of
\nexpression or communication.\n<\/p>\n
The  bulk of the correspondence is by the wife who seems  to
\nhave  a flair for letter-writing.  She writes in some  style
\nand as true as “The style is the man”, her letters furnish a
\nclue  to  her  personality.  They are  a  queer\t mixture  of
\nconfessions and opprobrious accusations.  It is strange that
\nalmost\tevery one connected with this couple his a  penchant
\nfor  writing.  The wife, apart from her voluminous  letters,
\nhas  written an autobiographical account of her\t unfortunate
\nexperiences  in\t the  Yeravada\tHospital,  calling  it\t“Mee
\nAntaralat Tarangat Asta” (“while I was floating in  space”).
\nThe    husband’s   father   idealised\tthe    Shiva-Parvati
\nrelationship in a book called : “Gauriharachai Goad  Kahani”
\n(“The  sweet story of Gaurihar”).  Quite a few of the  wifes
\nrelatives including a. younger sister of hers and of  course
\nher maternal
\n980<\/span>
\nuncle  have set their pen to paper touching some  aspect  or
\nthe other of her married life.\tPerhaps, it was\t unfortunate
\nthat the promised millennium that did not come began with  a
\nletter.\t  That\twas the letter of April 25, 1956  which\t the
\nwife’s\tlather\twrote  to the  husband’s  father  while\t the
\nmarriage  negotiations were in progress.  The marriage\ttook
\nplace on May 13, 1956.\n<\/p>\n
Nothing\t deserving any serious notice happened till  August,
\n1959 except that the letters Exs. 556, 238, 243 and 244 show
\nthat  quite frequently the respondent used to get into\tfits
\nof temper and say things for which She would express  regret
\nlater.\t In the letter Ex. 556 dated November 23,  1956\t she
\nadmits\tto  having behaved “very badly”; in  Ek.  238  dated
\nMarch  26,  1959 she admits that she was  behaving  like  an
\n“evil star” and had harassed the appellant; in Ex. 243 dated
\nMay  5,\t 1959 she says that she was aware of  her  “lack  of
\nsense”\tand  asks for forgiveness for  having  insulted\t the
\nappellant,  his parents, his sister and her husband; and  in
\nEx.  244 dated May 22, 1959 she entreats the appellant\tthat
\nhe  should not feel guilty for the insults hurled by her  at
\nhis parents.\n<\/p>\n
The period from August 1959 to March 1960 was quite critical
\nand  the correspondence covering that period shows  that  an
\ninnate\tlack  of self-control had driven the  respondent  to
\ninexorable conduct.  By the letter.  Ex. 256 dated  February
\n16, 1960 the appellant complained to the respondent’s father
\nwho  was  then\tin Indonesia that  the\trespondent  kept  on
\nabusing him, his parent and sister and that he was extremely
\nunhappy.  The appellant says in the letter that\t differences
\nbetween\t a husband and wife were understandable but that  it
\nwas   impossible  to  tolerate\tthe  respondent\t  constantly
\naccusing him and his relatives of wickedness.  The appellant
\ncomplains  that\t the respondent used to say  that  the\tbook
\nwritten\t by  his father should be burnt to ashes,  that\t the
\nappellant  should apply the ashes to his forehead, that\t the
\nwhole  Dastane family was utterly mean and that\t she  wished
\nthat  his family may be utterly ruined.\t The  appellant\t was
\ngravely\t hurt  at  the\trespondent’s  allegation  that\t his
\nfather’s  ‘Sanad’  bad been once forfeited.   The  appellant
\ntells the respondent’s father that if he so desired he could
\nask her whether anything stated in the letter was untrue and
\nthat  he  had  conveyed to her what be was  stating  in\t the
\nletter.\t  It may be stated that the respondent\tadmits\tthat
\nthe appellant had shown her this letter before it was posted
\nto  her\t father.  On March 21. 1960 the respondent  wrote  a
\nletter\t(Ex. 519) to the appellant’s parents  admitting\t the
\ntruth  of the allegations made by the appellant in Ex.\t256.
\nOn  June  23, 1960 the respondent made a noting in  her\t own
\nhand  stating that she had accused the appellant of being  a
\nperson with a beggarly luck, that she had said that the food
\neaten  at his house, instead of being digested\twould  cause
\nworms  in  the\tstomach and that she had given\ta  threat  :
\n“murder shall be avenged with murder”.\n<\/p>\n
During\tJune  1,  1960\tto December  15,  1960\tthe  marital
\nrelations  were\t subjected  to a  stress  and  strain  which
\nultimately  wrecked the marriage.  In about September,\t1960
\nthe appellants father probably offered to mediate and  asked
\nthe  appellant\tand the respondent to submit  to  him  their
\nrespective  complaints in writing.  The appellant’s bill  of
\ncomplaints is at Ex. 426 dated October 23, 1960.  The letter
\nmuch
\n981<\/span>
\ntoo long to be reproduced, contains a sorry tale.  The\tgist
\nof  the\t more  important of the\t appellant’s  grievances  in
\nregard to the period prior to June, 1960 is this : (1)’\t The
\nrespondent  used  to describe the appellant’s  mother  as  a
\nboorish woman; (2) On the day of ‘Paksha’ (the day oil which
\noblations  are offered to ancestors) she used to  abuse\t the
\nancestors  of the appellant; (3) She tore off  the  ‘Mangal-
\nSutra’; (4) She beat the daughter   Shubha  while  she\t was
\nrunning a high temperature of 104′; (5) One    night\t she
\nstarted\t behaving as if she was ‘possessed’.  She  tore\t off
\nthe  Mangal-Sutra once again and said that she will not\t put
\nit  on\tagain; and (6) She used to switch on  the  light  at
\nmidnight  and  sit  by the  husband’s  bedside\tnagging\t him
\nthrough\t the  night,  as a result  he  literally  prostrated
\nhimself before her on several occasions.\n<\/p>\n
The  gist of the incidents from May to October,\t 1960  which
\nthe  appellant describes as ‘a period of utmost\t misery’  is
\nthis.  (1)  The respondent would indulge in  every  sort  of
\nharassment  and\t would blurt out anything that came  to\t her
\nmind;  (2) One day while a student of the  appellant  called
\nGodse  was sitting in the outer room she shouted : “You\t are
\nnot a man at all”; (3) In the heat of anger she used to\t say
\nthat she would pour kerosene on her body and would set\tfire
\nto  herself  and  the house; (4) She used to  lock  out\t the
\nappellant  when\t he was due to return from the\toffice.\t  On
\nfour  or  five\toccasions he had to go back  to\t the  office
\nwithout taking any food; (5) For the sheer sake of harassing
\nhim she would hide his shoes, watch, keys and other  things.
\nThe letter Ex. 426 concludes by saying : ,
\n\t      “She  is a hard headed,  arrogant,  merciless,
\n\t      thoughtless,  unbalanced girl devoid of  sense
\n\t      of  duty.\t Her ideas about a husband are :  He
\n\t      is  a dog tied at doorstep who is supposed  to
\n\t      come  and\t go at her beck\t and  call  whenever
\n\t      ordered.\t She behaves with the  relatives  of
\n\t      her  husband  as if they\twere  her  servants.\n<\/p>\n
\t      When  I see her besides herself with  fury,  I
\n\t      feel  afraid  that  she may  kill\t me  at\t any
\n\t      moment.  I have become weary of her nature  of
\n\t      beating the daughters, scolding and   managing
\n\t      me every night uttering abuses and insults.”
\nMost  of these incidents are otherwise, supported,  some  by
\nthe  admissions\t of the respondent herself,  and  for  their
\nproof  we  do  not  have to accept  the\t bare  word  of\t the
\nappellant.\n<\/p>\n
On July 18, 1960 the respondent wrote a letter (Ex. 274)  to
\nthe appellant admitting that within the bearing of a visitor
\nshe  had  beaten  the daughter Shubha  severely.   When\t the
\nappellant protested she retorted that if it was a matter  of
\nhis  prestige, be should not have procreated  the  children.
\nShe has also admitted in this letter that in relation to her
\ndaughters  she bad said that there will be world deluge\t be-
\ncause of the birth of those “ghosts”.  On or about July\t 20.
\n1960  she  wrote another letter (Ex. 275) to  the  appellant
\nadmitting  that\t she had described him as “a  monster  in  a
\nhuman  body”,  that  she had and  that\tbe’should  not\thave
\nprocreated  children.  that  he\t should\t “Pickle  them\t and
\npreserve them in a jar” and that she had given a threat that
\nshe would see to it that he loses his job and then she would
\npublish\t the news in the Poona newspapers.  On December\t 15,
\n1960 the appellant wrote a
\n982<\/span>
\nletter\t(Ex. 285) to the respondent’s father complaining  of
\nthe  strange and cruel behaviour not only of the  respondent
\nbut  of\t her mother.  He says that the\trespondent’s  mother
\nused to threaten him that since she was the wife of an Under
\nSecretary she knew many important persons and could get\t him
\ndismissed  from\t service,  that she used  to  pry  into\t his
\ncorrespondence in his absence and that she even went to\t the
\nlength of saying that the respondent ought to care more\t for
\nher parents because she could easily get another husband but
\nnot another pair of parents.\n<\/p>\n
The  respondent\t then  went to\tPoona  for  the\t appellant’s
\nbrother’s  marriage, where she was examined by Dr.  Seth  of
\nthe  Yeravada  Hospital and the spouses\t parted\t company  on
\nFebruary 27, 1961.\n<\/p>\n
The  correspondence  subsequent to February 27,\t 1961  shall
\nhave to be considered later in a different,, though a highly
\nimportant, context.  Some of those letters clearly bear\t the
\nstamp of being written under legal advice.  The parties\t had
\nfallen\tout  for  good and the\tdomestic  war  having  ended
\ninconclusively\tthey were evidently preparing ground  for  a
\nlegal battle.\n<\/p>\n
In  regard to the conduct of the respondent as reflected  in
\nher admissions, two contentions raised on her behalf must be
\nconsidered.  It is urged in the first place that the various
\nletters\t containing  admissions were written  by  her  under
\ncoercion.  There is no substance in this contention.  In her
\nwritten\t  statement,   the  respondent\talleged\t  that\t the
\nappellant’s  parents  had  coerced  her\t into  writing\t the
\nletters.  At the trial she shifted her ground and said\tthat
\nthe  coercion  proceeded from the appellant  himself.\tThat
\napart, at a time when the marriage had gone asunder and\t the
\nrespondent sent to the appellant formal letters resembling a
\nlawyer’s  notice, some of them by registered post, no  alle-
\ngation\twas  made  that the appellant  or  his\tparents\t had
\nobtained  written  admissions from her.\t  Attention  may  be
\ndrawn  in this behalf to the letters Exs. 299 and 314  dated
\nMarch  23 and May 6, 1961 or to the elaborate complaint\t Ex.
\n318  dated May 19, 1961 which she made to the  Secretary  to
\nGovernment  of\tIndia,\tMinistry of  Food  and\tAgriculture.
\nPrior to that on September 23, 1960 she had drawn up a\tlist
\nof her complaints (Ex. 424) which begins by saying : “He has
\noppressed  me in numerous ways like the following.” But\t she
\ndoes  not speak therein of any admission or  writing  having
\nbeen obtained from her.\t Further, letters like Exs. 271\t and
\n272  dated  respectively  June 23 and July  10,\t 1960  which
\nbesides\t containing  admissions\t on her\t part  also  contain
\nallegations  against the appellant could certainly not\thave
\nbeen  obtained by coercion.  Finally, considering  that\t the
\nrespondent was always surrounded by a group of relatives who
\nhad assumed the role of marriage-counsellors, it is unlikely
\nthat any attempt to coerce her into making admissions  would
\nhave  been  allowed to escape unrecorded.   After  all,\t the
\ngroup here consists of greedy letter-writers.
\nThe  second  contention\t regarding  the\t admissions  of\t the
\nrespondent is founded on the provisions of section  23(1)(a)
\nof the Act under which the court cannot decree relief unless
\nit  is\tsatisfied  that “the petitioner is not\tin  any\t way
\ntaking\tadvantage of his own wrong’.  The fulfilment of\t the
\nconditions mentioned in, section 23(1) is so imperative
\n983<\/span>
\nthat  the  legislature has taken the care  to  provide\tthat
\n“then,\tand  in such a case, but not  otherwise,  the  court
\nshall decree such relief accordingly”.\tIt is urged that the
\nappellant is a bigoted and egocentric person who demanded of
\nhis  wife an impossibly rigid standard of behaviour and\t the
\nwife’s conduct must be excused as being in selfdefence.\t  In
\nother  words, the husband is said to have provoked the\twife
\nto say and act the way she did and he cannot be permitted to
\ntake advantage of his own wrong.  The appellant, it is true,
\nseems a stickler for domestic discipline and these so-called
\nperfectionists\tcan  be quite difficult to  live  with.\t  On
\nSeptember  22,\t1957 the respondent made a  memorandum\t(Ex.\n<\/p>\n
379) of the instructions given by the appellant, which makes
\ninteresting reading:\n<\/p>\n
“Special instructions given by my husband.
\n(1)  On rising up in the morning, to look in the minor.
\n(2)  Not to fill milk vessel or tea cup to the brim.
\n(3)  Not to serve meals in brass plates cups and vessels.
\n(4)  To\t preserve  carefully  the letters  received  and  if
\naddresses of anybody are given therein to note down the same
\nin the note book of addresses.\n<\/p>\n
(5)After  serving  the first course during meals,  not\tto
\nrepeatedly  ask\t ‘what do you want?’ but to  inform  at\t the
\nbeginning of the meals how much and which are the courses.
\n(6)As  far  as\tpossible not to dip  the  fingers  in  any
\nutensils.\n<\/p>\n
(7)  Not to do any work with one hand.\n<\/p>\n
(8)  To keep Chi.  Shuba six feet away from the primus stove
\nand Shegari.\n<\/p>\n
(9)  To regularly apply to her ‘Kajal’ and give\t her  tomato
\njuice, Dodascloin etc.\tTo make her do physical exercise, to
\ntake  her for a walk and not to lose temper with her  for  a
\nyear.\n<\/p>\n
(10)  To give him his musts and the things he requires\twhen
\nhe starts to go outside.\n<\/p>\n
(11)  Not to talk much.\n<\/p>\n
(12)   Not to finish work somehow or the other; for  example
\nto write letters in good hand writing, to take a good paper,
\nto write straight and legibly in a line.\n<\/p>\n
(13)   Not to make exaggerations in letters.
\n(14)  To show imagination in every work.  Not to  note\tdown
\nthe milk purchased on the calendar.”\n<\/p>\n
984<\/span><\/p>\n
Now,  this was utterly tactless but one cannot say  that  it
\ncalled\tfor any attack in self-defence.\t The  appellant\t was
\nthen 28 and the respondent 22 years of age.  In that  early-
\nmorning\t flush\tof  the marriage’ young\t men  and  women  do
\nentertain  lavish expectations of each other do not  and  as
\nyears roll by they see the folly of. their ways.  But we
\nthink that the wife was really offended by the\tinstructions
\ngiven  by the appellant.  The plea of self-defence  seems  a
\nclear  after-thought  which  took birth\t when  there  was  a
\nfundamental failure of faith and understanding.
\nReliance was then placed on certain letters to show that the
\nhusband\t wanted to assert his will at any cost, leaving\t the
\nwife  no  option but to retaliate.  We see no  substance  in
\nthis  grievance either.\t The, plea in the written  statement
\nis  one\t of  the  denial  of  conduct  alleged\tand  not  of
\nprovocation.   Secondly, there are letters on the record  by
\nwhich  the  wife  and her relatives had from  time  to\ttime
\ncomplimented  the husband and his parents for their  warmth,
\npatience and understanding.\n<\/p>\n
Counsel\t for  the  respondent laid  great  emphasis  on\t the
\nletter,\t Ex.  244 dated May 22, 1959 written by her  to\t the
\nappellant in which she refers to some “unutterable question”
\nput  by\t him  to her.  It is urged that\t the  appellant\t was
\npestering her with a demand for divorce and the “unutterable
\nquestion”  was\tthe one by which he asked for  divorce.\t  No
\nsuch inference can in our opinion be raised.  The respondent
\nhas  not produced the letter to which Ex. 244 is  reply;  in
\nthe written statement there is hardly a suggestion that\t the
\nappellant  was asking her for a divorce; and  the  appellant
\nwas  not asked in his evidence any explanation in regard  to
\nthe “unutterable question”.\n<\/p>\n
These defences to the charge of cruelty must accordingly  be
\nrejected.   However, learned counsel for the  respondent  is
\nright  in  stressing the warning given by Denning  L.J.,  in
\nKaslefsky  v. Kaslefsky that : “If the door of cruelty\twere
\nopened\ttoo  wide, we should soon  find\t ourselves  granting
\ndivorce for incompatibility of temperament.  This is an easy
\npath  to  tread especially in undefended cases.\t  The  temp-
\ntation must be resisted test we slip into a state of affairs
\nwhere the institution of marriage itself is imperilled.” But
\nwe think that t1o hold in this case that the wife’s  conduct
\ndoes not amount to cruelty is to close for ever the door  of
\ncruelty\t so as to totally prevent any access thereto.\tThis
\nis  not\t a case of mere austerity of  temper,  petulance  of
\nmanners,  rudeness of language or a want of civil  attention
\nto the needs of the husband and the household.\tPassion\t and
\npetulance  have\t perhaps to be suffered in  silence  as\t the
\nprice of what turns out to be an injudicious selection of  a
\npartner.  But the respondent is\t  the mercy of her inflexible
\ntemper.\t  She delights in causing misery to her husband\t and
\nhis  relation-,\t and she willingly  suffers  the  calculated
\ninsults which her relatives hurled at him and his parents  :
\nthe false accusation that, “the pleader’s Sanad of that\t old
\nbag  of\t your  father was forfeited”; “I  want\tto  see\t the
\nruination of the whole Dastane dynasty”, “burn
\n(1)[1950] 2 A.E.R. 398,403.\n<\/p>\n
985<\/span><\/p>\n
the book written by your father and apply the ashes to\tyour
\nforehead”;  “you are not a man” conveying that the  children
\nwere  not his; “you are a monster in a human body.  “I\twill
\nmake  you  lose\t your  job  and\t publish  it  in  the  Poona
\nnewspapers”-these and similar outbursts are not the ordinary
\nwear  and  tear of married life but they  became,  by  their
\nregularity  a  menace  to the peace and\t well-being  of\t the
\nhousehold.   Acts  like\t the tearing  of  the  Mangal-Sutra,
\nlocking\t out the husband when he is due to return  from\t the
\noffice,\t rubbing chillie powder on the tongue of  an  infant
\nchild,\tbeating a child mercilessly while in high fever\t and
\nswitching  on the light at night and sitting by the  bedside
\nof  the\t husband merely to nag him are acts  which  tend  to
\ndestroy\t the  legitimate  ends\tand  objects  of  matrimony.
\nAssuming  that there was some justification  for  occasional
\nsallies\t or show of temper, the pattern of  behaviour  which
\nthe respondent generally adopted was grossly excessive.
\nThe  conduct  of the respondent clearly amounts\t to  cruelty
\nwithin\tthe meaning of section 10(1) (b) of the Act.   Under
\nthat provision, the relevant consideration is to see whether
\nthe conduct is such as to cause a reasonable apprehension in
\nthe  mind  of  the petitioner that it  will  be\t harmful  or
\ninjurious  for him to live with the respondent.\t The  threat
\nthat  she will put an end of her own life or that  she\twill
\nset  the  house on fire, the threat that she will  make\t him
\nlose his job and have the matter published in newspapers and
\nthe,  persistent abuses and insults hurled at the  appellant
\nand  his parents are all of so grave an order as to  imperil
\nthe appellant’s sense of personal safety. mental, happiness,
\njob  satisfaction  and reputation.   Her  once-too-frequent.
\napologies do not reflect genuine contrition but were  merely
\nimpromptu device to tide over a crisis temporarily.
\nThe next question for consideration is whether the appellant
\nhad  at any time condoned the respondent’s  cruelty.   Under
\nsection\t 23(1) (b) of the Act, in any proceeding  under\t the
\nAct  whether defended or not, the relief prayed for  can  be
\ndecreed\t only and only if “where the ground of the  petition
\nis cruelty the petitioner has not in any manner condoned the
\ncruelty”.\n<\/p>\n
The  respondent\t did  not take up the plea  in\ther  written
\nstatement  that\t the  appellant bad  condoned  her  cruelty.
\nProbably  influenced by that omission, the trial  court\t did
\nnot frame any issue on condonation.  While granting a decree
\nof judicial separation on the ground of cruelty, the learned
\nJoint  Civil Judge, Junior Division, Poona, did not  address
\nhimself\t to  the question of condonation.   In\tappeal,\t the
\nlearned Extra Assistant Judge, Poona, having found that\t the
\nconduct\t of  the respondent did not amount to  cruelty,\t the
\nquestion  of condonation did not arise.\t The High  Court  in
\nSecond\tAppeal\tconfirmed the finding of the  1st  Appellate
\nCourt  on the issue of cruelty and it further held  that  in
\nany case the alleged cruelty was condoned by the  appellant.
\nThe  condonation, according to the High Court, consisted  in
\nthe  circumstance that the spouses co-habited till  February
\n27, 1961 and a child was born to them in August, 1961.\n<\/p>\n
986<\/span><\/p>\n
Before\tus, the question of condonation was argued  by\tboth
\nthe  sides.   It is urged on behalf of\tthe  appellant\tthat
\nthere  is no evidence of condonation while the\targument  of
\nthe respondent is that condonation is implicit in the act of
\nco-habitation and is proved by the fact that on February 27,
\n1961  when  the spouses parted, the respondent was  about  3
\nmonths pregnant.  Even though condonation was not pleaded as
\na  defence by the respondent it is our duty, in view of\t the
\nprovisions of section 23(1) (b), to find whether the cruelty
\nwas  condoned  by  the appellant.   That  section  casts  an
\nobligation  on\tthe  court  to\tconsider  the  question\t  of
\ncondonation,  an obligation which has to be discharged\teven
\nin  undefended cases.  The relief prayed for can be  decreed
\nonly  if  we  are satisfied “but not  otherwise”,  that\t the
\npetitioner  has not in any manner condoned the cruelty.\t  It
\nis,  of course, necessary that there should be\tevidence  on
\nthe  record  of\t the case to show  that\t the  appellant\t had
\ncondoned the cruelty.\n<\/p>\n
Condonation means forgiveness of the matrimonial offence and
\nthe restoration of offending spouse to the same position  as
\nhe  or\tshe occupied before the offence was  committed.\t  To
\nconstitute condonation there must be, therefore, two  things
\n:   forgiveness\t  and  restoration(1).\t The   evidence\t  of
\ncondonation  in this case is, in our opinion, as strong\t and
\nsatisfactory as the evidence of cruelty.  But that  evidence
\ndoes not consist in the mere fact that the spouses continued
\nto  share  a common home during or for some time  after\t the
\nspell of cruelty.  Cruelty, generally, does not consist of a
\nsingle, isolated act but consists in most cases of a  series
\nof acts spread over a period of time.  Law does not  require
\nthat  at  the  first appearance of a cruel  act,  the  other
\nspouse\tmust leave the matrimonial home lest  the  continued
\nco-habitation\tbe   construed\tas  condonation.    Such   a
\nconstruction   will   hinder  reconciliation   and   thereby
\nfrustrate the benign purpose of marriage laws.
\nThe  evidence of condonation consists here in the fact\tthat
\nthe   spouses\tled  a\tnormal\tsexual\tlife   despite\t the
\nrespondent’s Acts of cruelty.  This is not a case where\t the
\nspouses, after separation, indulged in a stray act of sexual
\nintercourse,  in which case the necessary intent to  forgive
\nand restore may be said to be lacking.\tSuch stray acts\t may
\nbear more than one explanation.\t But if during co-habitation
\nthe  spouses, uninfluenced by the conduct of  the  offending
\nspouse,\t lead a life of intimacy which characterises  normal
\nmatrimonial relationship, the intent to forgive and  restore
\nthe  offending spouse to the original status may  reasonably
\nbe inferred.  There is then no scope for imagining that\t the
\nconception of the child could be the result of a single\t act
\nof sexual intercourse and that such an act could be a  stark
\nanimal\tact  unaccompanied by the nobler graces\t of  marital
\nlife.  One might then as well magine that the sexual act was
\nundertaken just in order to kill boredom or even in a spirit
\nof  revenge.  Such speculation is impermissible.  Sex  plays
\nan  important role in marital life and cannot  be  separated
\nfrom  other  factors  which lend to  matrimony\ta  sense  of
\nfruition  and fulfilment.  Therefore, evidence showing\tthat
\nthe spouses led a normal sexual life even after a series  of
\nacts of cruelty by one spouse is proof that the other spouse
\ncondoned  that\tcruelty.  Intercourse, of course, is  not  a
\nnecessary ingre-\n<\/p>\n
1. The Law and Practice of Divorce and Matrimonial Causes by
\nD. Tolstoy sixth Ed., p. 75.\n<\/p>\n
987<\/span><\/p>\n
dient of condonation because there may be evidence otherwise
\nto show that the offending spouse has been forgiven and\t has
\nbeen received back into the position previously occupied  in
\nthe  home.  But intercourse in circumstances as obtain\there
\nwould raise a strong inference of condonation with its\tdual
\nrequirement,  forgiveness and restoration.   That  inference
\nstands\tuncontradicted, the appellant not  having  explained
\nthe circumstances in which he came to lead and live a normal
\nsexual life with the respondent, even after a series of acts
\nof cruelty on her part.\n<\/p>\n
But  condonation  of  a matrimonial offence  is\t not  to  be
\nlikened\t to a full Presidential Pardon under Article  72  of
\nthe  Constitution which, once granted, wipes out  the  guilt
\nbeyond\tthe possibility of revival.  Condonation  is  always
\nsubject\t to the implied condition that the offending  spouse
\nwill  not commit a fresh matrimonial offence, either of\t the
\nsame  variety as the one condoned or of any  other  variety.
\n“No  matrimonial  offence is erased by condonation.   It  is
\nobscured  but not obliterated” (1).  Since the condition  of
\nforgiveness  is\t that no further matrimonial  offence  shall
\noccur, it is not necessary that the fresh offence should  be
\nejusdem\t generis  with the  original  offence(2).   Condoned
\ncruelty\t can  therefore\t be revived, say,  by  desertion  or
\nadultery.”\n<\/p>\n
Section\t 23 (1) (b) of the Act, it may be urged,  speaks  of
\ncondonation but not of its revival and therefore the English
\ndoctrine  of  revival should not be  imported  into  matters
\narising\t under the Act.\t Apparently, this argument may\tseem
\nto  receive some support from the circumstances\t that  under
\nthe  English  law, until the passing of the  Divorce  Reform
\nAct,  1969  which while abolishing the traditional  bars  to
\nrelief\tintroduces defences in the nature of bars, at  least
\none  matrimonial  offence,  namely, adultery  could  not  be
\nrevived\t if once condoned (3).\tBut a closer examination  of
\nsuch an argument would reveal its weakness.  The doctrine of
\ncondonation was established by the old ecclesiastical courts
\nin Great Britain and was adopted by the English Courts\tfrom
\nthe  canon  law.  ‘Condonation’ is a  technical\t word  which
\nmeans  and implies a conditional waiver of the right of\t the
\ninjured\t spouse to take matrimonial proceedings.  It is\t not
\n‘forgiveness’\tas  commonly  understood  (4).\tIn   England
\ncondoned  adultery  could  not be received  because  of\t the
\nexpress provision contained in section 3 of the\t Matrimonial
\nCauses\tAct, 1963 which was later incorporated into  section
\n42(3)  of the Matrimonial Causes Act, 1965.  In the  absence
\nof  any\t such provision in the Act governing the  charge  of
\ncruelty,  the  word ‘condonation’ must receive\tthe  meaning
\nwhich  it  has borne for centuries in the world\t of  law(“).
\n‘Condonation’  under  section  23 (1)  (b)  therefore  means
\nconditional forgiveness, the implied condition being that no
\nfurther matrimonial offence shall be committed.
\n(1)  See  Words and Phrases Legally  Defined  (Butterworths)
\n1969 Ed., Vol I, p. 305, (“Condonation”).\n<\/p>\n
(2)  See  Halsbury’s Laws of England, 3rd Ed., Vol.  12,  p.
\n3061.\n<\/p>\n
(3)  See Rayden on Divorce, 11th Ed. (1971) pp. 11, 12,\t 23,
\n68, 2403.\n<\/p>\n
(4)  See  Words and Phrases Legally  Defined  (Butterworths)
\n1969 Ed., p. 306 and the Cases cited therein.
\n(5)  See  Ferrers vs Ferrers (1791) 1 Hag.  Con 130  at\t pp.
\n130, 131.\n<\/p>\n
988<\/span><\/p>\n
It  therefore becomes necessary to consider the\t appellant’s
\nargument that even on the assumption that the appellant\t had
\ncondoned  the  cruelty,\t the respondent\t by  her  subsequent
\nconduct\t forfeited  the\t conditional  forgiveness,   thereby
\nreviving   the\toriginal  cause\t of  action   for   judicial
\nseparation on the ground of cruelty.  It is alleged that the
\nrespondent  treated the appellant with cruelty during  their
\nbrief  meeting on March 19, 1961, that she refused to  allow
\nto the appellant any access to the children, that on May 19,
\n1961  she wrote a letter (Ex. 318) to the Secretary  to\t the
\nGovernment  of India, Ministry of Food and Agriculture,\t New
\nDelhi,\tcontaining false and malicious\taccusations  against
\nthe  appellant\tand his parents and that  she  deserted\t the
\nappellant  and\tasked  the Government to  provide  her\twith
\nseparate maintenance.\n<\/p>\n
These  facts,  if proved, shall have to\t be  approached\t and
\nevaluated  differently from the facts which were alleged  to
\nconstitute cruelty prior to its condonation.  The  incidents
\non  which  the appellant relied to establish the  charge  of
\ncruelty\t had to be grave and weighty.  And we found them  to
\nbe so.\tIn regard to the respondent’s conduct subsequent  to
\ncondonation,  it  is  necessary to bear in  mind  that\tsuch
\nconduct\t may not be enough by itself to found a\t decree\t for
\njudicial  separation and yet it may be enough to revive\t the
\ncondoned offence.  For example, gross familiarities short of
\nadultery(1) or desertion for less than the statutory  period
\n(2) may be enough to revive a condoned offence.
\nThe  incident of March 19, 1961 is too trifling\t to  deserve
\nany  notice.   That incident is described by  the  appellant
\nhimself\t in  the complaint (Ex. 295) which he  made  to\t the
\npolice on March 20, 1961.  He says therein that on the\t19th
\nmorning,  the  respondent  went\t to  his  house\t with\tsome
\nrelatives, that those relatives-instigated her against\thim,
\nthat  they entered his house though he asked them not to  do
\nso  and that she took away certain household  articles\twith
\nher.   As  shown  by her letter (Ex.  294)  dated  the\t19th
\nitself,\t the  articles which she took away were\t some  petty
\nodds  and  ends like a do]], a slate, a baby  hold-all,\t two
\npillows,  a bundle of clothes and a baby-cart.\t The  police
\ncomplaint    made    by\t  the\tappellant    betrays\tsome
\nhypersensitivity.\n<\/p>\n
As  regards  the  children, it does  seem  that\t ever  since
\nFebruary 27, the appellant was denied a chance to meet them.
\nHis letters Exs. 307.\t 309  and 342 dated April 20,  April
\n21 and November 23, 1961 respectively contain the  grievance
\nthat the children were deliberately not allowed to see him.,
\nFrom his point of view the grievance could be real but\tthen
\nthe  children, Shubha and Vibha, were just 4 and 2 years  of
\nage  in\t February, 1961 when their parents  parted  company.
\nChildren  of such tender age need a great amount of  looking
\nafter and they could not have been sent to meet their father
\nunescorted.  The one person who could so escort them was the
\nmother who bad left or bad to leave the matrimonial home for
\ngood.\t The   appellant’s  going  to  the  house   of\t the
\nrespondent’s  parents  where  he  was  living  was  in\t the
\ncircumstances an impracticable proposition.  Thus, the\twall
\nthat  divided the parents denied to the appellant access  to
\nhis children.\n<\/p>\n
(1)  Halsbury’s Law-, of England, 3rd Ed., Vol. 12, p.\t306,
\npara 609.\n<\/p>\n
(2) Beard vs.  Beard [1945] 2 A.E.R. 306.\n<\/p>\n
989<\/span><\/p>\n
The allegations made by the respondent in her letter to\t the
\nGovernment,  Ex.  318  dated May 19, 1961  require  a  close
\nconsideration.\t It is a long letter, quite an\tepistle,  in
\ntune  with the, respondent’s proclivity as a  letter-writer.
\nBy that letter, she asked the Government to provide separate
\nmaintenance  for herself and the children.  The\t allegations
\ncontained in the letter to which the appellant’s counsel has
\ntaken  strong  exception are these : (1) During\t the  period
\nthat  she  lived with the appellant, she  was  subjected  to
\ngreat harassment as well as mental and physical torture; (2)
\nThe  appellant had driven her out of the house\ton  February
\n27, 1961; (3) The appellant had deserted her and had declar-
\ned that he will not have any connection with her and that he
\nwill  not render any financial help for the  maintenance  of
\nherself\t and the children. He also refused to  give  medical
\nhelp  to  her in her advanced stage of\tpregnancy;  (4)\t The
\nappellant  had denied to her even the barest necessities  of
\nlife  like  food  and  clothing;  (5)  The  parents  of\t (he
\nappellant were wicked persons and much of her suffering\t was
\ndue  to the influence which they had on the  appellant;\t (6)
\nThe  appellant\tused to threaten her that he  would  divorce
\nher,  drive her out of the house and even do away  with\t her
\nlife,  (7) The plan to get her examined by Dr. Seth  of\t the
\nPeravada  Mental Hospital was an insincere wicked  and\tevil
\nmove  engineered  by  the appellant,  his  brother  and\t his
\nfather,\t (8)  On  her  refusal\tto  submit  to\tthe  medical
\nexamination  any  further, she was driven out of  the  house
\nwith  the children after being deprived of the valuables  on
\nher person and in her possession; and (9) The appellant\t had
\nsubjected  her\tto  such cruelty as to\tcause  a  reasonable
\napprehension  in  her  mind  that it  would  be\t harmful  or
\ninjurious for her to live with him.\n<\/p>\n
Viewed\tin isolation, these allegations present a  different
\nand   a\t somewhat  distorted  picture.\t For  their   proper
\nassessment  and understanding, it is necessary\tto  consider
\nthe context in which those allegations came to be made.\t  We
\nwill, for that purpose, refer to a few letters.
\nOn  March  7,  1961 the\t respondent’s  mother’s\t aunt,\tMrs.
\nGokhale wrote a letter (Ex. 644) to the respondent’s mother.
\nThe letter has some bearing on the events which happened  in
\nthe wake of the separation which took place on February\t 27,
\n1961.  It shows that the grievance of the respondent and her
\nrelatives was not so much that a psychiatrist was  consulted
\nas  that  the consultation was arranged\t without  any  prior
\nintimation  to\tthe respondent.\t The letter shows  that\t the
\nappellant’s  brother  Dr. Lohokare, and\t his  brother-in-law
\nDeolalkar, expressed regret that the respondent should\thave
\nbeen  got  examined  by\t a  psychiatrist  without   previous
\nintimation to any of her relatives.  The letter speaks of  a
\npossible compromise between the husband and wife and it sets
\nout  the  terms which the respondent’s relatives  wanted  to
\nplace  before  the  appellant.\t The  terms  were  that\t the
\nrespondent  would  stay\t at her\t parents’  place  until\t her
\ndelivery but she would visit the appellant off and on;\tthat
\nthe children would be free to visit the appellant; and\tthat
\nin  case  the appellant desired that the  respondent  should
\nlive with him, he should arrange that Dr. Lohokare’s  mother
\nshould\tstay  with them in Delhi for a few days.   The\tlast
\nterm of the proposed compromise Was that instead of  digging
\nthe  past  the\thusband and wife should live  in  peace\t and
\nhappiness.  The letter bears mostly the handwritting
\n990<\/span>
\nof  the\t respondent  herself and the  significance  of\tthat
\ncircumstance  is  that\tit was evidently  written  with\t her
\nknowledge and consent.\tTwo things are clear from the letter
\n:  one,\t that  the  respondent did not\twant  to  leave\t the
\nappellant  and two, that she did not either want to  prevent
\nthe  children  from seeing the appellant.   The\t letter\t was
\nwritten\t by one close relative of the respondent to  another
\nin  the ordinary course of events and was not, so  to  say,,
\nprepared in order to create evidence or to supply a possible
\ndefence.  It reflects a genuine attitude, not a\t makebelieve
\npose and the feelings expressed therein were shared by\tthe,
\nrespondent whose handwriting the letter bears.
\nThis letter must be read along with the letter Ex. 304 which
\nthe respondent sent to the appellant on April 18, 1961.\t She
\nwrites :\n<\/p>\n
\t      “I  was sorry to hear that you are unwell\t and
\n\t      need treatment.  I would always like never  to
\n\t      fail  in my wifely duty of looking after\tyou,
\n\t      particularly  when  you are  ailing,  but\t you
\n\t      will,  no doubt, agree that even for this,  it
\n\t      will not be possible for me to join you in the
\n\t      house out of which you have turned me at\tyour
\n\t      father’s instance.  ‘This is, therefore,\tjust
\n\t      to  keep you informed that if you come to\t 7\/6
\n\t      East Patel Nagar, I shall be able to nurse you
\n\t      properly\tand  my parents will  ever  be\tmost
\n\t      willing  to  afford the  necessary  facilities
\n\t      under  their  care to let me  carry  out\tthis
\n\t      proposal of mine.”\n<\/p><\/blockquote>\n
There  is no question that the respondent had no  animus  to
\ndesert\tthe appellant and as stated by her or on her  behalf
\nmore  than  once,  the appellant had on\t February  27,\t1961
\nreached her to Mrs. Gokhale’s house in Poona, may be in\t the
\nhope   that  she  will\tcooperate  with\t Dr.  Seth  in\t the
\npsychiatric exploration.  She did not leave the house of her
\nown volition.\n<\/p>\n
But the appellant had worked himself up to believe that\t the
\nrespondent had gone off her mind.  On March 15, 1961 he made
\na complaint (Ex. 292) to the Delhi Police which begins\twith
\nthe  recital that the respondent was in the Mental  Hospital
\nbefore\tmarriage  and  that  she  needed  treatment  from  a
\npsychiatrist.\tHe did say that the respondent was  “a\tvery
\nloving and affectionate person” but he qualified it by\tsay-
\ning  :\t“when excited, she appears to be  a  very  dangerous
\nwoman, with confused thinking”.\n<\/p>\n
On April 20, 1961 the appellant wrote a letter (Ex. 305)  to
\nthe  respondent\t charging  her once again  of  being  in  an
\n“unsound  state\t of mind”.  The appellant declared  by\tthat
\nletter that he will not be liable for any expenses  incurred
\nby  her during her stay in her parents’ house.\tOn the\tsame
\ndate he wrote a letter (Ex. 307) to the respondent’s  father
\nreminding  him that he, the appellant, had accepted  a\tgirl
\n“who  had returned from the Mental Hospital”.  On April\t 21,
\n1961 he wrote it letter (Ex. 309) to the Director of  Social
\nWelfare,  Delhi\t Administration, in which he  took  especial
\ncare to declare that the respondent “was in the Poona Mental
\nHospital  as a lunatic before the marriage”.  The  relevance
\nof  these reiterations regarding the so-called\tinsanity  of
\nthe
\n991<\/span>
\nrespondent,  particularly  in the last\tletter,\t seems\tonly
\nthis,  that the appellant was preparing ground for a  decree
\nof  divorce or of annulment of marriage.  He was surely\t not
\nso  naive as to believe that the Director of Social  Welfare
\ncould arrange to “give complete physical and mental rest” to
\nthe  respondent.   Obviously, the appellant was\t anxious  to
\ndisseminate  the information as widely as possible that\t the
\nrespondent was of unsound mind.\n<\/p>\n
On May 6, 1961 the respondent sent a reply (Ex. 314) to\t the
\nappellant’s  letter,  Ex. 305, dated April  20,\t 1961.\t She
\nexpressed her willingness to go back to Poona as desired  by
\nhim, if he could make satisfactory arrangements for her stay
\nthere.\tBut she asserted that as a wife she was entitled  to
\nlive  with  him and there was no purpose in  her  living  at
\nPoona “so many miles away from Delhi, without your shelter”.
\nIn  regard to the appellant’s resolve that he will not\tbear
\nthe  expenses  incurred by her, she stated that\t not  a\t pie
\nremitted  by him will be illspent and that, whatever  amount
\nhe would send her will be, accounted for fully.
\nIt is in this background that on May 19, 1961 the respondent
\nwrote  the letter Ex. 318 to the Government.  When asked  by
\nthe  Government to offer his explanation, the  appellant  by
\nhis  reply  Ex.\t 323 dated July 19,  1961  stated  that\t the
\nrespondent  needed  mental  treatment,\tthat  she  may\thave
\nwritten\t the letter Ex. 318 in a “madman’s frenzy” and\tthat
\nher  father  had “demoralised” her.  In his letter  Ex.\t 342
\ndated  November\t 23 , 1961 to the  respondent’s\t father,  he
\ndescribed the respondent as “‘your schizophrenic daughter”.
\nConsidered  in\tthis context, the allegations  made  by\t the
\nrespondent in her letter Ex. 318 cannot revive the  original
\ncause  of  action.  These allegations were provoked  by\t the
\nappellant  by  his  persistent\tand  purposeful\t accusation,
\nrepeated  times without number, that the respondent  was  of
\nunsound mind.  He snatched every chance and wasted no oppor-
\ntunity\tto  describe  her  as a mad  woman  which,  for\t the
\npurposes  of  this appeal, we must assume to  be  wrong\t and
\nunfounded.  He has been denied leave to appeal to this Court
\nfrom the finding of the High Court that his allegation\tthat
\nthe  respondent\t was of unsound mind is baseless.   He\talso
\nprotested that he was not liable to maintain the respondent.
\nIt  is\tdifficult  in  these  circumstances  to\t accept\t the
\nappellant’s argument either that the respondent deserted him
\nor  that  she  treated him with cruelty\t after\ther  earlier
\nconduct was condoned by him.\n<\/p>\n
It  is true that the more serious the original offence,\t the
\nless  grave  need  be the subsequent acts  to  constitute  a
\nrevival(1)  and\t in  cases of cruelty,\t“very  slight  fresh
\nevidence is needed to show a resumption of the cruelty.\t for
\ncruelty of character is bound to show itself in conduct\t and
\nbehaviour, day in and day out, night in and night out”.\t But
\nthe  conduct of the respondent after condonation  cannot  be
\nviewed\tapart  from  the  conduct  of  the  appellant  after
\ncondonation.  Condonation is conditional forgiveness but the
\ngrant of such forgiveness does not give
\n(1) Cooper vs.\tCooper (1950) W.N. 200 (H.L.)
\n(2) Per Scott L. J. in Batram vs.  Batram (1944) p. 59 at p.\n<\/p>\n
60.
\n992<\/span>
\nto  the\t condoning  spouse a charter  to  malign  the  other
\nspouse.\t  If  this  were so, the condoned  spouse  would  be
\nrequired mutely to submit to the cruelty of the other spouse
\nwithout relief or remedy.  The respondent ought not to\thave
\ndescribed  the\tappellant’s  parents as\t “wicked”  but\tthat
\nperhaps\t is  the only allegation in the letter\tEx.  318  to
\nwhich  exception may be taken.\tWe find ourselves unable  to
\nrely  on that solitary circumstance to allow the revival  of
\ncondoned cruelty.\n<\/p>\n
We therefore hold that the respondent was guilty of  cruelty
\nbut the appellant condoned it and the subsequent conduct  of
\nthe respondent is not such as to amount to a revival of\t the
\noriginal  cause\t of  action.  Accordingly,  we\tdismiss\t the
\nappeal\tand  direct the appellant to pay the  costs  of\t the
\nrespondent.\n<\/p>\n
P. H. P.\t    Appeal dismissed.\n993<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Narayan Ganesh Dastane vs Sucheta Narayan Dastane on 19 March, 1975 Equivalent citations: 1975 AIR 1534, 1975 SCR (3) 967 Author: Y Chandrachud Bench: Chandrachud, Y.V. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-43144","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNarayan Ganesh Dastane vs Sucheta Narayan Dastane on 19 March, 1975 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/narayan-ganesh-dastane-vs-sucheta-narayan-dastane-on-19-march-1975\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Narayan Ganesh Dastane vs Sucheta Narayan Dastane on 19 March, 1975 - 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