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Narayan Ganesh Dastane Vs. Sucheta Narayan Dastane - Court Judgment

LegalCrystal Citation
CourtMumbai High Court
Decided On
Case NumberA.F.A.D. No. 480 of 1968
Reported inAIR1970Bom312; (1969)71BOMLR569; ILR1969Bom1024; 1969MhLJ798
ActsHindu Marriage Act, 1955 - Sections 10, 10(1), 12(1), 12(2), 13(1), 23, 25 and 26; Code of Civil Procedure (CPC), 1908 - Sections 100; Evidence Act, 1872 - Sections 4, 31, 45 and 87
AppellantNarayan Ganesh Dastane
RespondentSucheta Narayan Dastane
Appellant AdvocateS.B. Bhasme, Adv.
Respondent AdvocateM.V. Paranjpe and N.D. Hombalkar, Advs.
hindu marriage act (xxv of 1955), sections 10, 23 - cruelty, what amounts to under act--testa to be followed in determining legal cruelty in matrimonial law.;sections 10 and 23 of the hindu marriage act, 1955, indicate the tests to be followed by the court in determining what amounts to cruelty under the act. first, the acts, words, omissions or events alleged to amount to cruelty directed against the petitioner must be proved beyond reasonable doubt. this must be in accordance with the law of evidence. second, it must be established that there is an apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the other party. the petitioner must be able to establish that what he apprehends is real harm or injury. the third requirement.....1. this second appeal raises novel and difficult points with regard to the relations between a modern educated husband and his wife in hindu society.2. the appellant in this appeal is the husband dr. narayan ganesh dastane. the respondent is his wife mrs. sucheta narayan dastaoe. they were married according to vedic rites on may 13, 1956 in poona. a daughter shobha was born on march 11, 1957, a second daughter vibhavari was born on march 20, 1959, and before the third daughter. prabha was delivered, the husband and wife unfortunately fell out as it is undisputed that they have been living separately from each other since march 1961.3. on february 19, 1962, the appellant filed the petition from which the present second appeal arises. in that petition the appellant prayed in the first.....

1. This second appeal raises novel and difficult points with regard to the relations between a modern educated husband and his wife in Hindu Society.

2. The appellant in this appeal is the husband Dr. Narayan Ganesh Dastane. The respondent is his wife Mrs. Sucheta Narayan Dastaoe. They were married according to Vedic rites on May 13, 1956 in Poona. A daughter Shobha was born on March 11, 1957, a second daughter Vibhavari was born on March 20, 1959, and before the third daughter. Prabha was delivered, the husband and wife unfortunately fell out as it is undisputed that they have been living separately from each other since March 1961.

3. On February 19, 1962, the appellant filed the petition from which the present second appeal arises. In that petition the appellant prayed in the first instance for a declaration annulling the marriage under Section 12(1)(c) of the Hindu Marriage Act on the ground that the consent of the husband for the marriage was obtained by fraud. According to the husband, the wife was suffering from schizophrenia and she was treated in the Mental Hospital Yeravda some time in the year 1954; but schizophrenia was an incurable and dangerous form of unsoundness of mind, being hereditary and recurring; and these facts were suppressed from the husband before he consented for the marriage. The husband alleged that the parents and the relatives of the wife had known or ought to have known that the respondent's disease was diagnosed as schizophrenia before her marriage was settled with the petitioner and that they had deliberately concealed this fact from the petitioner and his father and deliberately gave them to understand and made them believe that the nature of the illness was simply a sunstroke and cerebral malaria. It is on this ground that the husband prayed for the decree of nullity of the marriage. In the alternative; the husband prayed for a decree of divorce under Section 13(1)(iii) on the ground that the wife had been incurably of unsound mind for a continuous period of not less than three years immediately before the presentation, of the petition. Finally, in the alternative, the husband prayed for a decree for judicial separation under Section 10(1)(b) alleging that the wife treated him with such cruelty as to cause a reasonable apprehension in the mind of the husband that it would be harmful or injurious for him to live with her.

4. The wife in her written statement denied the allegations made in the petition and contended that she was and is always ready and willing to go and live with the petitioner.

5. The learned Civil Judge, Senior Division, by his judgment and decree dated July 31, 1965 while dismissing the claim of the husband for a decree for nullity of marriage and divorce ordered the husband to pay Rs. 400 per month as interim maintenance till the end of January 1965 and Rs. 280 per month from February 1, 1965 till the date of the judgment under Section 24 of the Hindu Marriage Act and further directed that on full payment of arrears of interim maintenance as ordered, the petitioner was entitled to a decree for judicial separation under Section 10(1)(b) of the Hindu Marriage Act against the wife, He also ordered that the petitioner should pay Rs. 280 per month as future maintenance to the respondent and children under Sections 25 and 26 of the Hindu Marriage Act and directed that the children of the petitioner and respondent should be in the custody of the respondent till they attained majority while at the same time ordering that in the interest of the children and the petitioner and the respondent, the petitioner must be given interview with the children once in a fortnight at a convenient place, preferably a public park or a residence of a common friend. The learned Judge ordered the parties to bear their own costs.

6. The wife filed Civil Appeal No. 700 of 1965 against the decree or judicial separation. The husband filed Civil Appeal No. 722 of 1965 against the decree refusing annulment of marriage and divorce. The two appeals were heard by the Fourth Extra Assistant Judge at Poona who by his judgment and decree dated January 8, 1968 allowed the wife's appeal and set aside the decree passed by the Civil Judge and dismissed the husband's appeal and ordered the husband to pay to the wife costs of the petition and of the two appeals as well as maintenance at the rate of Rs. 400 till the end of January 1965 and Rs. 280 per month from February 1, 1965 to the date of the judgment.

7. Feeling aggrieved by the said judgment and decree, the husband has filed the present second appeal.

8. The first ground urged in this appeal is that the Courts below erred in law in not granting a decree annulling the marriage under Section 12(1)(c) of the Hindu Marriage Act notwithstanding that the husband established facts which show that his consent to the marriage was obtained by fraud. The relevant provisions of the Hindu Marriage Act are as follows:--

12. '(1) Any marriage solemnized, whether before or after the commencement of this Act shall be voidable and may be annulled by a decree of nullity on any of the following grounds namely:--

(a) .... ...(b) .... ... (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under Section 5, the consent, of such guardian was obtained by force or fraud; or

(d) ...... (2) Notwithstanding anything contained in Sub-section (1), no- petition for annulling a marriage:--

(a) on the ground specified in Clause (c) of Sub-section (1), shall be entertained if-

(i) the petition is presented more than oneyear after the force had ceased to operate .or, as the case may be, the fraud had beendiscovered; or

(ii) the petitioner has; with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered.'

9. The finding of the trial Court on this question is that there was no fraud committed by the respondent or her parents-or anyone else in getting the final consent from the petitioner to his marriage with the respondent, The trial Court held that the allegation of the husband in his petition that he came to know that the respondent suffered from schizophrenia on April 25, 1961 from a certificate of the entry in the register of the Mental Hospital at Yeravda dated April 10, 1961 was proved and that the husband came to know about the alleged fraud about respondent's disease being schizophrenia on April 25, 1961 after the receipt by him of the certificate Exhibit 208; and hence the petition filed by him on February 19, 1962 was not barred by limitation under Section 12(2)(a). He, however, considered the evidence on the point and came to the conclusion that the petitioner had decided to marry the respondent after fully considering the facts about the mental illness of the respondent as communicated ' in her father's letters dated April 25, 1956 and April 27, 1956, in view of the admissions made by , the petitioner himself and the contents of his own letter to the respondent's father dated April 30, 1956, Exhibit 567.

10. In appeal the learned Assistant Judge considered the entire evidence on the record on the point and found that the petitioner had failed to prove' that his consent to the marriage was obtained by any fraud, holding that considering the contents of the letter addressed by the respondent's father and all the circumstances of the case, it was evident that the petitioner, with open eyes gave the consent for his marriage by his letter dated 30th April, 1956, Exhibit 567, observing as follows:--

'Petitioner had seen the respondent before marriage, petitioner had talk with the respondent before marriage. Not only the petitioner, his father, his family members had a talk with the respondent. The respondent entered the kitchen of the petitioner's family, did some work in the family as recorded by the petitioner's father in his letter, Exhibit 566. It cannot be said that the consent of the petitioner for the marriage between the petitioner and the respondent was obtained by fraud.'

11. Now, these concurrent findings on the question of fraud are essentially questions of fact. Mr. Bhasme, however, argued that this finding of fact is based on a misconstruction of the relevant letters which clearly show that the petitioner and his family members were misled by the suppression of the disease from which the wife suffered in 1954 and a representation falsely made that she had an attack of sun-stroke. There is no merit in this contention because in his letter, dated April 23, 1956, Exhibit 394 the respondent's father had clearly informed the petitioner's father as follows:--

'My wife writes to me from Poona thatyou yourself, Shrimati Dastane and your sonhave approved of my, daughter, Ch. Meera.I feel very happy about the approval.But, before we proceed further in regard tothe negotiations for marriage, I feel I oughtto keep you informed that, while my daughter is undoubtedly as good as you have been,pleased to consider she is, and as she actually is, she had a little misfortune beforegoing to Japan, in that she had a bad attack of sun-stroke which affected her mentalcondition for some (sic). Happily by courseof a treatment in the Yeravda Mental Hospital, she could be cured satisfactorily andyou find her, as she is today. Dr. Mujawar.Head of the Yeravda Mental Hospital andShrimati Malatibai Ranade of the Hospital,who know her very well since then may, ifyou consider necessary, be kindly consultedin the matter.

If, after taking this letter into account and making such enquiries, as you may deem proper, you reconsider the matter and thereafter, your approval of my daughter continues, my joy will know no bounds, and on hearing from you I shall ask my wife to continue negotiations regarding further details about the marriage or if I can get leave, I shall myself go to , Poona for the negotiations, My going to Poona, however, for this purpose is not certain because Parliament is in session at present and I have been put in charge of Commerce and Industry Ministry's Parliamentary work since joining here on the 12th instant.

As father of the girl, I greatly value your approval of my daughter, but the sole object in writing this letter is to ensure that, if she is yours for good, you should not be in the dark about an important episode in her life, which, though unfortunate, has happily ended well.'

I cannot imagine a more frank and fair disclosure from a father of a daughter about to be married. Nothing would have been easier for the petitioner, who was then a Research Officer of the Agricultural Institute at Arbhavi, belonging to the then Government of Bombay, and his father, who was a lawyer in Poona, to have a full enquiry to satisfy themselves about the details of the illness which affected the respondent in 1954 for which she was treated in the Yeravda Mental Hospital. In his letter, Exhibit 567, dated April 30, 1956 addressed to the respondent's father, the petitioner has referred to the above letter and categorically stated:--

^^ ,danj loZ ifjfLFkrhpk fopkj l:u Hkh dkyp

rh- lkS- deykckbZuk fp- ehjkps ckCr ek>kiw.kZ

gkdkj dGfoyk- **

The petitioner himself in his deposition paragraph 41 has honestly stated:--

'On the day in which we gave our final approval, respondent and her mother were with us in our residence for about 1 1/2 hour. I came to Poona on 29th April, 1956 at 1-00 p.m. After finishing meals at about 1-30 p.m. I phoned to Mental Hospital, Yerawada from the next house of our residence, .......... We thought on reading letter from respondent's father dated 27th April, 1956, that proper inquiries have to be made with the Mental Hospital authorities about the exact malady from which respondent was suffering in that hospital. I had no discussion with my father before sending a phone call to the mental hospital on 29th April, 1956. On inquiry on phone I did not get information which I required. On phone I was asked to come with family doctor of respondent. So I went to Dr. Deshmukh also to inquire as to who was the family doctor. I had a talk with Dr. Deshmukh for about half an hour. Dr. Deshmukh told me, that he was the family doctor of respondent, I believed him. I had no acquaintance, or knowledge about Dr. Deshmukh before I went to him. I did not ask as to how he could be the family doctor of respondent's family, when that family was residing in Delhi and Japan ............ Dr. Deshmukh is a relation of respondent and so I thought it necessary to make some independent inquiry, but when he showed the certificate about the respondent of Dr. Mujawar and told me about the treatment in the hospital, I did not think it necessary to make any independent inquiry. I relied upon the word of respondent's father, mother and Dr. Deshmukh, being supported by the medical certificate of Dr. Mujawar. I did not know Dr. Mujawar before that ........ I had not mind to find out whether she had any remnant disease from which she was suffering in the mental hospital as I was convinced about the normal nature of respondent and that is why I had no talk with her about that interval to find out whether there was any remnant in her of the former disease. My father also did not ask any question to respondent to verify as to whether there was any sign remaining of the disease from which she was suffering in tie mental hospital.'

This evidence, in my judgment, clearly shows that the concurrent findings of the two Courts below that the consent of the petitioner to the marriage was not obtained by fraud is right and hence the petitioner is not entitled to a decree for annulment of marriage under Section 12(1)(c) of, the Hindu Marriage Act. .

12. The second ground urged by. Mr. Bhasme, the learned Counsel for the husband, is that the record dearly establishes the petitioner's case under Section 13(1)(iii) that the wife had been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition and the lower Court erred in law in not granting divorce on this ground. Both the Courts below have carefully considered the oral and documentary evidence on the record including the evidence of the petitioner's witnesses Dr. Yeshwant Waman Kelkar, Psychiatrist, Mental Hospital, Yerawada and Dr. Hanumant Vidyadhar Sardesai, M. B. B. S., M. D., Bombay, M. R. C. P., Edinborough, Neurologist practising in Poona as a Consulting Physician and Radiologist and came to the conclusion that the petitioner failed to prove that she never suffered from schizophrenia which is the only ground alleged for saying that the respondent was of unsound mind The learned Judge in the trial Court held from the evidence of Dr. Kelkar and Dr. Sardesai that a mere entry at page 26 of the file, Exhibit 85 which is the history sheet of the respondent maintained in the Yerawada Mental Hospital where the word 'Schizo' was recorded by Dr. Mujawar, was not sufficient to show that the respondent was in fact suffering from schizophrenia. He further found that the diagnosis of Dr. Mujawar that the respondent suffered from schizophrenia was not correct observing as follows:--

'Dr. Kelkar of the Mental Hospital who is Psychiatrist in that hospital also admits that when a person moves in society, as well dressed, passes examination and is in the Government service, he cannot call that person a patient of Schizophrenia, that if a patient is discharged as recovered in 1954 and has not relapsed upto 1964-65 he cannot also call that patient as a patient of Schizophrenia, that the column of diagnosis in the form as at page 26 of Exhibit 85 is filled up after all the data in the other columns is ready for consideration, that in the case of respondent no such data seems to have been taken and considered before writing the diagnosis as Schizophrenia that diagnosis of doctors are at times wrong and more so when prescribed dates are not taken, that Schizophrenic patients are not allowed to travel by sea. So on the statement of the expert of petitioner himself Dr., Kelkar, the diagnosis of respondent's disease as Schizophrenia in 1954 by Dr. Mujawar cannot be accepted as correct, There is no recurrence of the disease in the case of respondent for the last 11 years even though she has pre-pregnancies. She mixed in society and the family members of her husband's side and parents' side for those 11 years. She passed M. A, in February, 1964 and is now in the employment of the Central Government in Delhi. A number of letters written by respondent are produced and they show that she is an intelligent girl. So these facts read with the statement of Dr. Sardesai and Dr. Kelkar lead me to hold the diagnosis of Dr. Mujawar that respondent suffered from Schizophrenia is not correct.

This finding of the trial Court is confirmed by the Assistant Judge. The question as to whether the respondent suffered at any time from Schizophrenia is essentially a question of fact; and in view of these concurrent findings recorded by the two Courts on a careful consideration of the evidence and of the circumstances of the case, it is not open to the appellant to challenge these findings in second appeal. Dr. Mujawar was not examined as he was not available.

13, Mr. Bhasme has, however, contended relying on (1) certain passages from Henderson and Gillespie's Textbook of Psychiatry, (2) a pamphlet issued in 1961 by an organisation known as the Mental Health Research Fund having its office at 39, Queen Anne Street, London, (3) Volume 10, Encylopaedia of Medical Practice, 2nd edition under the general editorship of Lord Border, Extra Physician to Her Majesty the Queen and Consulting Physician to St. Bartholomew's Hospital, London in the year 1953, and (4)' the behaviour of the respondent during the period of her cohabitation with the petitioner and thereafter, that the lower Courts ought to have held that the wife suffered from Schizophrenia not only in 1954 but all along and further that the finding of the two Courts that it was not an incurable disease was also wrong.

14. There is no substance even in this contention of Mr. Bhasme, Section 13(1) of the Hindu Marriage Act in so far it is material is as follows:--

13. 'Any marriage solemnized, whether before or after the commencement of this Act, may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party:--

(i) .... .. (ii) .... .. (iii) has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition.

It is clear from this that the petitioner has to establish firstly that the respondent has been incurably of unsound mind and secondly that she has been so, for a continuous period of not less than three years immediately before the filing of the petition on February 19, 1962. It may be that schizophrenia is a disease which renders the mind unsound, although this fact is also not established on the record. The pamphlet referred to above says:--

'About one person in every hundred born will suffer from schizophrenia. It is the largest of all causes of severe mental disablement -- there are nearly 60,000 schizophrenic patients in hospital in England and Wales now. This is about four times the number being treated for all forms of tuberculosis. Schizophrenia knows no frontiers whether of age, sex, social class, high intelligence, or special training. , Among its victims are people of outstanding intellectual or artistic merit, But it is a disease especially of youth, and its cost to the community in human suffering and financial loss is incalculable.'

The pamphlet goes on to say what is schizophrenia as follows: --

'Stated briefly, it is a disorder leading detachment from the world without, together With disruption of the world within. The patient shows abnormal ways of thinking: speech becomes broken up and one sentence seems to lose contact with the next leading, at its most extreme, to a jumbled flow of apparently meaningless words. The schizophrenic is likely to hold false belief, often of persecutory type, convinced that he is the victim of malevolent plotters and that his thoughts are controlled by external forces such as radar or television. Delusions like this are unusually supported by hallucinations, especially of known or unknown voices, which may repeat his thoughts, threaten or abuse him, or make obscene comments, These voices, which may seem to come from inside or outside his body, are so real that, the sufferer may talk back and, for this reason, the term 'split mind' is often used.'

The authorship of this pamphlet is not disclosed. It cannot be relied upon as authoritative merely because it is issued by a charitable society which is interested in collecting funds for treating schizophrenics and carrying on research in England on the subject. Even assuming that what it stales is correct, it must be said that there is no basis whatsoever on the record of this case to show that the wife in this case is schizophrenic except the cryptic word 'Schizo' written by Dr. Mujawar on the Mental Hospital register and an article which is very strongly relied upon by the petitioner admittedly written by the respondent entitled ^^ eh varjkGkar rjaxr vlrk **Exhibit 542which the respondent had written after she recovered from her illness for which she was kept in the Mental Hospital and treated by Dr. Mujawar. So far as the entry made by Dr. Mujawar is concerned, no presumption can be made that what is stated in the entry is correct. Dr. Mujawar could not be examined and the petitioner's own witness Dr. Kelkar and Dr. Sardesai have rightly admitted that it is possible that Dr. Mujawar was wrong in his diagnosis. The diagnosis of schizophrenia and its classification as described in the Encyclopaedia of Medical Practice shows that it is a very complicated and difficult process. At page 387 it is stated: -

'It will always be wise, even for the consultant psychiatrist, to see the patient on several occasions before ruling out schizophrenia, and his relatives, employers and friends should be interviewed. A single interview may not disclose any abnormalities, but if he can be observed in hospital quite blatant signs may be recognised.

............ But there is no single test for schizophrenia the total clinical picture and the history of the development of symptoms must be studied.' There is no evidence in the case to show that any such study of the respondent was made in 1954, On the contrary, all the evidence in the case and the conduct of the respondent in the two Courts below as well as here shows that she is a normal person. In fact the trial Court who decided against her has observed:--

'It is true that respondent behaved in a dignified way befitting a housewife in a noble and respectable family throughout the 5-6 months' period of hearing of this matter in Court, .

Surprisingly, however, he went on to observe and, in my opinion, not fairly:--

'But I am to judge her conduct with petitioner and not her conduct in Court. From that conduct it can only be decided that she is a lady who knows well as to how to behave in a society and in the public. No conclusion however can be drawn from that conduct in Court about her conduct with petitioner.'

These remarks were made by him in the context of his findings regarding cruelty. But I think that what he has stated is enough to show that she behaved very well in the course of this trial in which she had to face an unfounded charge of unsoundness of mind. If she was a patient of schizophrenia alleged by the petitioner, I am sure that she could not have faced such a trial including a lengthy and gruelling cross-examination at the hands of the Counsel for the petitioner. Moreover, she could not have passed the M. A, examination and worked as an employee in the Government of India if she was schizophrenic. She has been so very reasonable in her attitude towards the petitioner throughout the seven years of litigation that even today, she is willing to go back to her husband. I cannot understand how, expert or no expert, any such wife can he considered to be schizophrenic. So far as the article written by the wife before her marriage was concerned, it is -obviously on the childish assumption that what the doctor thought was schizophrenia was in fact schizophrenia. It will be clear from this article that she has been an extrovert eager to communicate to others her experience and moods, of choice and pleasures, dreams and illusions. It is in that mood that she has written the article which reads very well and a perusal of the article will show that the author could never have been mad, although she was believing honestly on the basis of what she was told by Dr. Mujawar that she was a patient of schizophrenia.

15. Moreover, the argument that schizophrenia is an incurable disease is not supported by the very authorities which are cited 'by Mr. Bhasme. Henderson and Gillespie's Textbook of Psychiatry which is considered to be a standard authority on the subject has cautiously stated at page 288:--

'The more enthusiasm and staying power we bring to the treatment of schizophrenia, the better are likely to be our results: but complete success can not often be claimed for treatment. All our treatments are empirical and limited to their effects: we are frustrated by our very slight knowledge of the etiology of the illness.'

16. It is argued by Mr. Bhasme that a schizophrenic person can never be cured though he or she may recover. This may not be true. At least the' pamphlet relied on by him shows:--

'Speaking generally, the chances of recovery are about equal; but how often is the return home of the recovered mental patient obstructed by relatives, friends and employers who are reluctant to accept him?' This means that it is possibly curable provided the relatives co-operate, in treating the schizophrenic person as a normal person. Mr. Bhasme has relied on the following passage in the Encyclopaedia at page 389:--

'For anyone who has had a schizophrenic illness, there is an ever-present risk of another attack and, although a happy marriage may have a great stabilizing effect on the patient, the normal partner has shouldered a burden which may weigh heavily at times and can never be forgotten.'

According to Mr. Bhasme; this shows that once a person becomes schizophrenic, he or she continues to be schizophrenic susceptible to frequent attacks at intervals. With great respect to all these authorities, common sense tells us that the medical science is still in its infancy regarding the diseases of the brain. What I am concerned with here is a common sense question as to whether the wife in the present case is suffering incurably from unsound mind. That is the expression which the Legislature in its wisdom has used and not 'schizophrenia'. With the advance in medical science, perhaps, more details about schizophrenia may be known. But everybody knows what is an unsound mind and I have no doubt that the respondent in this case has no unsound mind. Her mind has been always in the right place and there is nothing on the record to show that she ever suffered from unsound mind. In the result, I must hold that the petitioner is not entitled either to a divorce (sic) under Section 13(1)(iii) or to a judicial separation (sic) under Section 12(1)(c) of the Hindu Marriage Act.

17. The third and the most important ground on which Mr. Bhasme has challenged the decree passed by the Assistant Judge in this second appeal is that the Assistant Judge erred in law in setting aside the decree passed by the trial Court for judicial separation on the ground that the respondent treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the respondent within the meaning of Section 10(1)(b) of the Hindu Marriage Act, discarding the voluminous documentary evidence which contained admissions by the wife about the cruel treatment and torture inflicted by her on the husband.

18. Before discussing this point, it is necessary to refer briefly to the findings of the two Courts below on this aspect of the matter. In support of his allegations of cruelty by the wife, the petitioner relied principally on:--

(1) insults and abuses hurled by the wife to the petitioner and the members of his family,

(2) beating children mercilessly,

(3) a habitual disregard of household duties and indifference and disrespectful behaviour in the house in the presence of strangers.

(4) threats of violence to herself and to the household,

(5) addressing defamatory letters against himself to his superiors,

(6) conniving at writing of threatening letters and anonymous letters to the petitioner, and

(7) concealment of a medical examination report from the petitioner. According to the husband the consequence of this cruelty was to make it impossible for him to live with her. Reliance is placed on a large number of documents admittedly signed by the wife in which we find the wife recording all the objectionable words uttered by her in the course of the day and apologising for the mistake committed by her and promising not to repeat them. It may be at once stated here that all this voluminous evidence was led by the petitioner principally to establish that the respondent was suffering from schizophrenia or unsound-ness of mind and as a result of that, she committed so many acts right from the beginning of married life till they were separated and even thereafter.

19-42. (His Lordship went through the evidence relied upon by the two 'Courts below, and the findings arrived at by them, His Lordship then proceeded.)

43. In this second appeal Mr. Bhasme, the learned Counsel for the husband, has challenged the findings of the appellate Court on the ground that the Assistant Judge erred in holding that, in spite of the admissions of the respondent recorded in the various writings, those writings were obtained by force. He submitted that even the admitted writings disclosed the cruel conduct of the respondent from which the petitioner had reasonable apprehension that in would be harmful or injurious for him to have with 'her.' Ordinarily the proof of acts or omissions complained of by the petitioner would be pure questions of fact; but, according to Mr. Bhasme, the correspondence and writings produced in the case establish beyond any doubt that the petitioner's endurance was exhausted and right from, the beginning of the marriage till they separated, the respondent behaved cruelly towards him and the members of his family. He contended that the Assistant Judge was wrong in assuming that the abuses and insults given by the respondent, as admitted by her in her various writings, were not at all abuses which were commonly known as abuses. He further urged that the learned Assistant Judge was in error in considering the petitioner's behaviour as unjustified or unreasonable when it was not at all the case of the respondent that he behaved in any unreasonable manner. He also contended that several documents and other evidence on the record were completely ignored by the Assistant Judge. According to him, the final act of cruelty inflicted by the wife on the husband was the representation made by her on May 19, 1961 to the Ministry of Agriculture jeopardizing his very continuance as a Class I Officer of the Government of India; and the Assistant Judge refused to consider it as of any consequence and completely ignored it and this was not justified in law.

44. I think that both the Courts have failed to apply the correct principles of law in determining the issues of cruelty in this case in the light of the evidence before the Court. The trial Court ignored the provisions of Section 31 of the Indian Evidence Act and assumed that whatever was written down by the respondent in the form of admissions was conclusive proof of the words and happenings mentioned therein and these amounted to cruelty. The trial Court was grossly in error further in ignoring the provisions of Sections 10 and 23 of the Hindu Marriage Act and in dealing with the whole matter as if the word 'cruelty' in matrimonial law had the same meaning as it had in an 'ordinary dictionary, disregarding completely the principles laid down in Sections 10 and 23. The trial Court did not even apply its mind to the question as to whether the apprehensions of the petitioner were reasonable, and whether he had condoned the alleged acts by cohabiting with the respondent from the time of the marriage till February 21, 1961. The trial Court proceeded with the matter as if Section 23 of the Hindu Marriage Act did not exist and completely ignored the conduct of the petitioner towards the respondent, though it was the duty of the Court to consider the provisions of Section 23 (see Laxmibai v. Laxmichand, : [1969]72ITR157(Bom) ). The principles laid down by the Act for the guidance of the Court when dealing with the matrimonial offence of cruelty were not at all borne in mind , by the trial Court. What is unfortunate is that even as late as 1965, the learned Judge thought that a Hindu wife could not express herself freely about her domestic affairs notwithstanding that we are living in a society in which equality of status and opportunity is given to a woman and she enjoys the liberty of expression, faith, belief and worship, If the husband can express his views about the wife and her relations how can a wife be prevented from expressing her views? But the learned trial Judge appears to have assumed that in spite of the parity of status accorded to a woman under the Hindu Marriage Act, the wife had no right to express any views about any of these matters if the husband did not like that.

45. Similarly, the appellate Court has also approached the case, ' though not as erroneously as the trial Court, yet not in accordance with the settled principles of law. The Assistant Judge has wrongly excluded all the documents assuming that they were executed under force forgetting that he was not dealing with a confession in a criminal trial but with admissions in a civil trial. He wrongly assumed that merely because the abuses and insults were not commonly regarded as abuses, they could never amount to acts of cruelty. He further wrongly assumed and blamed unnecessarily the husband and his parents thinking that they were an orthodox lot from Poona and because of this orthodoxy, the husband could not put up with the wife who was brought up under less orthodox surroundings in Delhi. The Assistant Judge did not consider carefully all the requirements of law under Section 10 and Section 23 and the principles laid down regarding the concept of legal cruelty in matrimonial law.

46. Hence I allowed Mr. Bhasme to take me through the entire oral and documentary evidence which according to the petitioner, established the alleged cruelty on the part of the respondent. Mr. Bhasme strenuously urged that the writings in which the respondent had admitted her abuses and insults to the husband showed the modus operandi used by the respondent for torturing the petitioner. According to him, the modus operandi consisted of abuses, insults, admissions, apologies, promises and again abuses and so on repeated from time to time. He urged that the respondent was persisting in her mental torture of the petitioner in even resisting his petition for Judicial separation at this stage because she takes pleasure in the mental torture thereby caused to the petitioner.

47. To repel these arguments of Mr. Bhasme, Mr. Paranjpe, the learned Counsel for the wife, stated that his client had still hopes of reconciliation with the husband and he would, therefore, restrain himself from saying all that he wanted to say or could say on the evidence, but the least that he had to say, not on the instructions of his client but purely as a matter of argument on the evidence, was that the petitioner -had dishonestly adopted the plea of cruelty because his real intention in filing the petition was to get a divorce on the basis that the respondent was of unsound mind and suffering from schizophrenia. He contended that although the Assistant judge might not have adopted the correct ratio decidendi in assessing the conduct of the parties and the consequences, he had arrived at the correct conclusion and rightly held that the petitioner was not entitled to judicial separation.

48. In view of these contentions, it is first necessary to state, as far as it is possible, the meaning of the word 'cruelty' in matrimonial law as a ground for judicial separation. Cruelty may be of infinite variety. It can be subtle or brutal. It may be physical or mental. It may be by words, gestures or by mere silence, violence or nonviolence. That is the reason why Courts have never tried to give an exclusive definition of cruelty as understood in matrimonial law.

49. Before the Hindu Marriage Act, 1955, the Indian Courts generally applied the principles followed by the English Courts in deciding this question in so far as they were applicable to conditions in Indian Society. In Moonshee Buzloor Ruheem v. Shamsoonnissa Begum (1866) 11 Moo Ind App 551, the parties were Muslims, but the Privy Council adopted the exposition of the law regarding cruelty as prevailing in England more than a hundred years ago and observed:

'The Mohomedaa law, on a question of what is legal cruelty between Man and Wife, would probably not differ materially from our own, of which one of the most recent expositions is the following:-- 'There must be actual violence of such a character as to endanger personal health or safety; or there must be a reasonable apprehension of it,' The Court', as Lord -Stowell said Evans v. Evans (1 Hagg. Con. Rep., 37, et seq.) 'has never been driven off this ground.' In Yamunabai v. Narayan ILR (1876) 1 Bom 164 in which the husband and wife were Kokanastha Brahmins Mr. Justice Melvill and Mr. Justice West, following the above decision adopted the principles followed by English Courts. In Meherally Mooraj v. Sakerkhanoobai (1905) 7 Bom LR 602, Mr. Justice Batchelor followed the same principle in a case in which the parties belonged to the Khoja community. The march of the Indian Courts with the English Courts in expounding the concept of cruelty is illustrated in Cowasji Nuseerwanji Patuck V. Shehra Cowasji Patuck 39 Bom LR 1138: AIR 1938 Bom 81 in which Mr. Justice B. J. Wadia after referring to the above Privy Council case stated: . .

'The word 'cruelty' has not been defined in the Act, but there is no doubt that it means legal cruelty as understood in English law, namely, injury, causing danger tolife or limb or health or reasonable apprehension of such injury'.He approved of the following passage inEvans v. Evans, (1790) 1 Hagg Con 35:--'Mere austerity of temper, petulance ofmanners, rudeness of language, a want ofcivil attention and accommodation, even occasional sallies of passion, if they do notthreaten bodily harm, do not amount to legalcruelty: they are high moral offences in themarriage state undoubtedly, not innocentsurely in any state of life, but still theyare not that cruelty against which the lawcan relieve.'

50. It is, therefore, necessary to consider the question of cruelty in the light of the exposition of that law for the time being in force in England which is consistently and precisely stated in Tolstoy's Divorce and Matrimonial Causes,. Sixth Edition, 1967 at page 61 as follows:--

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

The learned author further goes on to say:--

'In 1963 the meaning of cruelty was interpreted 'by the House of Lords in Gollins v. Gollins, (1964) AC 644 and Williams v. Williams (1964) AC 698 and previous decisions must be read in the light of these two cases, Intention is not a necessary ingredient of cruelty and neither a malevolent intention, nor a desire to injure, nor knowledge that the act done is wrong and hurtful, need be present for conduct to amount to cruelty; the question in all cases is whether the respondent's conduct Was cruel, rather than whether the respondent was himself or herself a cruel person......

There are no limits to the kind of conduct which might constitute cruelty, but whatever the conduct it must be grave and weighty and which can properly be described as cruelty in the ordinary sense of the term. Spouses take each other for' better or worse, and it is not enough to show that they find life together impossible, even if there results injury to health..........

Since 1964 AC 644 and. 1964 AC 698 there are two tests which must be satisfied for cruelty to be established: first, is the conduct complained of sufficiently grave and weighty to warrant the description of being cruel and, secondly, has the conduct caused injury to health or reasonable apprehension of such injury.'

Having regard to these principles and the entire evidence in the case, in my Judgment I find that none of the acts complained of against the respondent can be considered to be so sufficiently grave and weighty as to be described as cruel according to the matrimonial law. The acts complained of are expressions sometimes of rebuke, sometimes of remorse very often arising out of occasional ill-tempers which are the ordinary wear and tear of married life. Even the application made by the respondent to the Ministry of Agriculture which is, perhaps, the gravest of the acts attributed to the respondent cannot be considered as a cruel act, It has not injured the status or health of the petitioner. It was in fact an act of an Innocent wife who was placed in a pitiable position by her husband who charged her with insanity while she was pregnant and had to take the shelter of her parents.

51. Apart from this, what the Courts have to bear in mind when deciding these questions is, in my judgment, clearly indicated in Sections 10 and 23 of the Hindu Marriage Act, the relevant provisions of which are as follows:--

'10. (1) Either party to a marriage, whether solemnized before or after the commencement of this Act may present a petition to the District Court praying for a decree for judicial separation on the ground that the other party-

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

23. (1) In any proceeding under this Act, whether defended or not if the Court Is satisfied that-

(a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

(b) where the ground of the petition is the ground specified in Clause (f) of Subsection (1) of Section 10, or in Clause (1) of Sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition Is cruelty the petitioner has not in any manner condoned the cruelty, and

(c) the petition is not presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and

(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be me duty of the Court in the first instance, in every case where it Is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties.'

The Parliament in enacting these provisions has clearly indicated what are the tests to be followed by the Courts In India. First the acts, words, omissions or events alleged to amount to cruelty directed against the petitioner must be proved beyond reasonable doubt. This must be in accordance with the law of evidence. Second, it must be established that there is an apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the other party. No doubt, every petitioner will say that he apprehends such harm or injury. But he must be able to establish that what he apprehends is real harm or injury. Even that is not enough; and the third requirement of law is that the Court must be satisfied that this apprehension is reasonable having regard to all the facts and circumstances of the case including the physical, mental and social condition of the parties concerned; their status, perhaps social, economic and physical; the nature of the differences between the spouses; the welfare of the children, if any, of the marriage; the conduct of the parties towards each other during coverture and thereafter, including the conduct of the parties in the course of the prosecution of the matrimonial petition, if necessary, depending on the nature of each case; and possibly what the Court ought to regard as the prevailing notions regarding the conduct and relation between husband and wife. Moreover, the Parliament has considered that even this is not enough to entitle the petitioner to relief, if the conduct of the petitioner himself disentitles him to any relief, because if the Court finds that the petitioner is taking advantage of his own wrong, it is the duty of the Court not to grant the relief. Hence the fourth requirement laid down by the law is that the petitioner must satisfy the Court that he is not in any way taking advantage of his or her own wrong or disability for the purpose of the relief. The fifth requirement, so far as the present case is concerned which Is mentioned in Section 23 is that where the ground of the petition is cruelly, as in the present case, the petitioner has not in any manner condoned the cruelty.

52. In my judgment, the petitioner in this case must fail even assuming that all that he has established amounts to cruel treatment by the wife to him, because the present petition was filed against the respondent as a person of unsound mind. Attempt was made to appoint a guardian for this alleged lunatic. The wife established that she was not a lunatic and the petition proceeded on the footing that she was not a lunatic. In spite of this, the husband has persisted in contending in all the three Courts that she was suffering from schizophrenia and that alone is the explanation for all that she said and did during their coverture. I have already held above that this charge against the respondent is entirely baseless, It was utterly wrong on the part of the husband and his parents and his relations in Poona to subject the respondent to theinhuman indignity of being examined as aninsane person while she was taking mealsin the house.

53. Moreover, a perusal of the pleadings and the evidence led in the case shows that the petitioner was more particular about getting a divorce than to' prove cruelty and get a judicial separation; and the alleged instances of legal cruelty were trotted out ad nauseam to establish that she was schizophrenic, in which attempt the husband has miserably failed in all the three Courts now.

54. Besides, it is common ground that the husband and wife cohabited till February 27, 1961 at Arbhavi, Poona and Delhi and the last daughter born, Pratibha, was delivered in August 1961, In my judgment, this clearly establishes that the husband himself had condoned all the alleged so-called acts of cruelty by his wife. It is a well-settled principle in matrimonial law in general that condonation involves forgiveness confirmed or made effective by reinstatement, as stated by Lord Chancellor Simon in Henderson v. Henderson, 1944 AC 49. (Normally, sexual intercourse is evidence of both forgiveness and reconciliation and raises a presumption of condonation in the case of either spouse. It may be rebutted by evidence sufficient to negative the intent to forgive.

55. The moral virtues of the wife in this case are not challenged by the husband. It must be said to his credit that in spite of his obsession that his wife was suffering from schizophrenia, he has not made any remark against the chastity or against the moral character of the wife. In these circumstances, as the husband and wife parted when the wife was pregnant, it must be held that till the date or parting whatever happened between the husband and wife was condoned by the husband. The wife was reinstated to her position. The husband is not entitled to any relief on the ground of any of the acts committed by her during coverture till February 27, 1961. For reasons which will be stated below, I hold that the husband has failed to prove that the wife did anything which amounted to treating the petitioner with cruelty after that date. On this ground alone, the petition is liable to be dismissed.

56. Moreover, I have carefully considered the oral and documentary evidence regarding the alleged acts of cruelty. They are not specifically and clearly mentioned as such in the petition filed by the petitioner. The parties have led oral or documentary evidence regarding the alleged acts (although mainly in the context of schizophrenia). The lower Courts have discussed them. The trial Court was not prepared to believe the petitioner's uncorroborated testimony regarding them and relied on the so-called admissions in the respondent's writings. The Assistant Judge in appeal while excluding many of these writings as secured by force referred to the others and found that none of them showed any acts of cruelty. As already stated by me, the trial Court appears to have erroneously assumed that admissions in the writings were conclusive proof of the matters in issue and the Assistant Judge wrongly excluded many of them applying the law of confession. I, therefore, went through all the relevant writings and letters in which the respondent admitted the words which she used, apologised for them and promised to come up to the standard required by her husband.

57. In my judgment it is wrong to rely on these admissions as conclusive proof of acts of cruelty because the words of abuse or insult or provocative remarks or retorts contained therein are all stated without reference to the context. They could not have been addressed in vacuum. Every abuse, insult, remark or retort must have been probably in exchange for remarks and rebukes from the husband. Mr. Bhasme argued that such is not the case of the respondent. Her case is that she was forced to give all these writings and Mr. Bhasme submits that no such case of force was made either in the written statement or at any time before she gave evidence. That is true. But a Court is bound to consider the probabilities and infer, as I have done, that they must have been in the context of the abuses, insults, rebukes and remarks made by the husband, and without evidence on the record with respect to the conduct of the husband in response to which the wife behaved in a particular way on each occasion, it is difficult, if not impossible, to draw inferences against the wife.

58. I have read all that the wife wrote from 1956 to February 27, 1961 on which day, she was practically abandoned as schizophrenic in a 'callous manner by her husband in Poona. I find that most of the words and sentences and acts were sallies of ill-temper or retorts exchanged for the rigid expectations and rebukes by the husband. They were the result of the delicate and sometimes turbulent interplay of the personalities of the husband and wife. The husband with a brilliant academic career, a Class I Government of India Officer and Assistant Professor in the All India Institute of Agriculture at Poona expected his wife to yield to the norms set up by him in his household. The wife also a Science graduate at the relevant time (she passed M. A. examination of Delhi University in 1964 during the pendency of the litigation) tried her best to come up to the meticulous standards set up by the husband, But the husband was not satisfied. He pulled on 'somehow in this unsatisfactory way from 1956 to February 27, 1961. He had two daughters from her and was expecting a third and then, unfortunately, in his relentless search for the causa causans of the failures and infirmities of his wife he hit upon schizophrenia. He thought that he had discovered his wife completely. Perhaps in consultation with his father (a lawyer) and brother (a medical practitioner) he convinced himself that schizophrenia is incurable unsoundness of mind. He felt that the only way of getting rid of his marital troubles was to file a petition for nullity or divorce. All this was thoroughly wrong on the part of the husband. But somehow he nursed and cultivated an invincible repugnancy to the company of his wife which he cannot shed even after seven years of litigation in the Courts mainly because he perhaps still thinks that his wife is suffering from schizophrenia. He sees every act and omission of his wife in this frame of mind and apprehends that he cannot live with her. He may not be dishonest in his belief, as suggested by Mr. Paranjpe, learned counsel for me wife. He is certainly unwise and unreasonable in sticking to that belief despite the just and proper decisions of the two Courts below holding that his wife is not schizophrenic.

59. It is in this background of the husband's conduct and attitude that all the allegations made against the wife by him must be considered. Apart from the fact that all the facts and words prior to February 27, 1961 were condoned by him, there is nothing in them which can be considered as cruel. They do amount to reactions and expressions, occasional abuses and insults about what she felt about the household, her husband and his family. For instance, when the husband wrote that he would prefer to stay with snakes without teeth and scorpions without poison rather than slay with a wife like her, she replied that she would like her teeth to be extracted by him, so that she could live with him like snakes. What is cruel about this? The husband is a Deshastha Brahmin. The wife is a Kokanastha Brahmin. The wife wrote that if he did not like a Kokanastha Brahmin girl, he should have thought about it before marriage, This must have been in the context of some remark made by the Deshastha Brahmin husband against his Kokanastha Brahmin wife critiquing the Kokanastha community. Such tactless remarks and retorts 'can never be considered as amounting to cruelty. Sometimes the wife said objectionable things for which she repented. As I have already referred to the important allegations while summarising the findings of the Civil Court above, I do not wish to repeat and discuss them in details. Although I am not prepared to agree with the Assistant Judge and say that she used no words of abuse and insults, I cannot agree with the trial Court and hold that they amount to cruelty as understood in matrimonial law. The tongue can undoubtedly pierce deeper than the sword Injuries inflicted by the tongue may be deeper and may last longer.

But what happened between the husband and wife in the present case cannot be considered as so grave and serious as to result in such injuries. Ill-temper, petulance of manners, rudeness of language, a want of civil accommodation, occasional sallies of wit and passion, frequent nagging were shared commonly by both husband and wife. Hence the husband cannot complain that the wife was cruel to him. Both must suffer it in silence or overcome it by prudent conciliation.

60. Mr. Bhasme argued that in any event the wife's conduct after February 27, 1961 firstly, in not caring to undergo the treatment in the Mental Hospital at Yeravda secondly, in not believing and leaving her husband unceremoniously on March 19, 1961 at Delhi, thirdly, in applying to the Ministry of Agriculture making allegations against him and his family, fourthly, in suppressing the certificate given to her by Dr. Boshaa Master, fifthly, in persisting in this litigation, not to agree to judicial separation, although she herself stated in her application, to the Ministry of Agriculture that she did not like to live with him and he and his family members were wicked, and lastly, in not allowing her children to meet their father for some months before the petition was filed--consisted of intolerable acts of cruelty on the part of the wife. This argument ignores the conduct of the husband-

(1) in abandoning the wife and children at Poona to the tender mercies of her parents and brother while she was pregnant baselessly assuming that the wife was a schizophrenic,

(2) in not providing for any expenses to the wife and children after they returned to Delhi hi spite of notices, and

(3) in not caring to look them up even after the delivery of the third child.

In my judgment the wife was fully justified, in these circumstances, to make a representation to the Ministry of Agriculture and in not supplying the certificate of sound mind given to her by Dr. Roshan Master. The husband and his family suspected her sanity. She naturally described them as wicked, She lost faith for the time being in her husband's good faith. She did not intend to jeopardize his job. She wanted to preserve herself and her children. There is nothing unjustifiable even in her conduct and attitude in the course of this litigation. With, all his faults, she loves and respects her husband, the father of her three daughters. She wants to live with him and make him happy if a chance is given to her. Her conduct and attitude have been rightly praised by the two Courts below. She has rightly insisted that her husband should not try to run away from his matrimonial obligations like a blind man groping on an unfamiliar road on the basis of an erring belief in schizophrenia. She is doing her best to win back her husband for herself and the father for the children.

61. Whether the alleged acts of cruelty are viewed singly or cumulatively, they are all humdrum, ordinary results of the shortcomings of both the husband and wife. The great Indian poet Kalidas gave a universal advice to young housewives through Shakuntala when he said 'Do not go against the husband's wishes even if you are upset by anger'.

HkrqfoZizd`rkfi jks';k ekLe izrhiaxe%

But how many housewives have been able to follow this wholesome advice? Marriage, which is otherwise very virtuous, as in the present case, cannot be broken up merely because the wife has common foibles shared by most women. No incident alleged by the husband viewed in isolation or in the background of all other incidents cumulatively can be considered so grave and weighty as to justify a finding of cruelty as required by matrimonial law.

61A. A perusal of the provisions of the Hindu Marriage Act, 1955 shows that it justifies breaking up of the matrimonial tie only when there are grave and weighty reasons which make it wrong to continue the matrimonial home. Mutual irritability, mutual incompatibility and even mutual consent are not considered sufficient under the Act to break up the matrimonial home by a decree of the Court, Marriage is still assumed to be a basic, vital and fundamental institution not only for the physical, mental, spiritual and social comforts of the spouses but for the maintenance, protection and education of the progeny. The Court cannot countenance ill-conceived notions of an intemperate husband to shatter the legitimate dope of a virtuous wife for re-union. It is true that the efforts made in the two Courts below and in this Court, as well as outside, to reconcile the husband and wife, who have not lived together since. February 27, 1961, have completely failed on account of the unbending temper of the husband; But I am convinced that he has not done what a right-minded, reasonable, fair, practical, highly educated and wise husband ought to do.

62. Having regard to all these aspects of the matter and all the facts and circumstances of the case, I must hold that there is no substance in any of the grounds urged by the appellant in his petition and the petition must be dismissed with costs throughout. The law does not and cannot allow even by a decree of judicial separation breaking up of a marriage which has resulted in the birth of three innocent children in the manner wanted by the husband in the present case. His apprehension that he cannot live safely with his wife is, in my judgment, most unreasonable.

63. In the result, the second appeal is dismissed with costs throughout and for the reason stated above, the decree passed by the Assistant Judge is confirmed, The respondent is given liberty to withdraw theamount deposited by the appellant in thisCourt.

64. Appeal dismissed.

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