1. This Appeal by the husband is directed against the judgment and decree dated 29-5-1978 passed by the Third Additional District Judge, Bangalore, in Matrimonial Case No. 10 of 1973, on his file, allowing the petition of the wife Mrs. Melba Dolores Pais for judicial separation and for custody of children, instituted Under Ss. 22 and 23 read with S. 41 of the Indian Divorce Act, 1869, (here in after referred to as the Act).
2. The relevant petition averments in brief are as follows:
The petitioner and the respondent in the petition are Indian Christians. They were married on 21-8-19,61 in h1flagres Church. Mangalore, and. they last resided together at 25A, Magrath Road, Civil station, Bangalore. They have three sons born out of wedlock.
The Petitioner and the respondent were not known to each other prior to their marriage. The engagement ceremony in respect of the marriage look place on 21-8-1961. Since marriage, their life has not been smooth and happy. The in-laws of the petitioner did not take kindly to her, They ill-treated her, the respondent Joining with them it, is The ease of the petitioner that since marriage, she has been subjected to both mental and physical cruelty at the bands of the respondent.
After marriage, the respondent left to Kuwait. The petitioner joined in Oct. 16. The sisters of the respondent were living with them at Kuwait. The respondent was addicted to heavy drinking and was behaving cruelly with the petitioner and was beating her without or reason. The trouble aggravated in the year 1962 when It* Petitioner was expecting bye first child and was in a delicate state of health. The. respondent's sister got upset for no reason and confirmed cry and respondent blared the Petitioner for that and forced her ask forgiveness is of his sister. The in-laws were living with the petitioner a-ad the workload of the Petitioner increased very much and though she requested her husband to take her to a separate residence, he refused to do so. The petitioner wife. for India on 30-4-1962 for confinement and the respondent insisted that she should, for confinement go to his mother's house instead of going to her mother's hoist. Fever after the birth of the first son when The respondent came to India, he . Frequently quarreled with tile Petitioner and made her life desirable The Petitioner went back to Kuwait in, Dec 1962 and the respondent, continued to drink heavily and 4real her cruelly and that made her live in perpetual fear jeopardising her health.
On 23-12-1974, when the respondent fell t received a letter from his sister regarding money matter, be. was 1.1psP1 and, attacked the petitioner by banging her head against the wall, and strangling tier, and, but for the intervention of a friend who was present then. she would have lost her life. The brother of the petitioner was sent for and then the respondent behaved as if nothing had transpired and. after his departure, the respondent got the petitioner to pack all her clothes and brought a can of petrol and threatened to set fire to it and burn The same During the Years 1965, 1966 and 1967, the same cruel treatment w as Incited (nit to her by she respondent, Even thereafter, when the petitioner came to India. the respondent was writing 1hrealening letters and was not sending remittances lo. the petitioner; she had come to India in early 1970. She had to struggle to maintain herself and her children. in spite of the fact that the respondent was getting a tat salary of Rs. 6,250/- per month, tax-free.
The respondent came to India in 1971. He believed in witchcraft and he engaged the service of one Britto and began to act as per his instructions. Oil 21-12-1971, the respondent as usual got heavily drunk. locked himself in the bathroom for not less than five hours and broke everything he could lay his hands upon and attempted to commit suicide. The petitioner's younger brother visa sent for and he induced the Respondent to come out; the respondent came out with a knife to kill the petitioner and her children The Petitioner and her children locked themselves in a ro0in and escaped the and the respondent broke the door and hit the petitioner with a tea-poy. The respondent, before, being taken away 'from the house, attempted to set fire to curtains in the house, The same night, the respondent came with a knife in his hand and lived to assault the petitioner and her children; when they were rescued by the petitioner's brother, he went to the garage saying that he would commit suicide. He later left for Kuwait on 7-1-1972. From here he wrote letters threatening the petitioner with blackmail and ran her down to everyone,
On 9-11-1972 the respondent came to Ban galore and commenced to drink and spend money lavishly without supporting the family. He wanted to go to Cannanore to contact some people who would help him in black magic and he went to Mangalore and brought some leaves broomsticks and some liquid etc., and kept them under lock and key and he told all the friends of the petitioner not to visit her and he was not allowing the petitioner to me anywhere, He would not allow her to play the radio or even' to talk to 1he children.
On 30-11-1972. The petitioner was Spilled to go out or the house and then, when she started packing, be assaulted 1he petitioner by twisting her bands and ', took away all the things and been locked them up, When 1he petition was eldest son brought The duplicate keys and opened the floor, the respondent assaulted the child with hands and slippers and banged his had o the floor, The respondent later of a police complaint of robbery against the petitioner.
By amending the petition subsequently the petitioner included one more para in the petition including these. The respondent got himself examined in 0ie case even before the petitioner led her evidence, remained in the country though he represented to the Court that lie would immediately leave for Kuwait and during The months of April and May 1974, he assaulted the petition anti her sop's and lodged a false complaint against her. As a consequence of the same, she had to face a criminal trial. The respondent also brought a large number of police men to The house to make an inventory of the movables.
In the circumstances, the petitioner contended that it was impossible for her to continue to live with the respondent without danger to her health, life and limb.
The petitioner further averred that she had not condoned these. She did not co-habit with, the respondent for the past 1 1/2 years prior to the institution of the petition.
She also asserted That there was no collusion or contrivance b0ween herself and her husband in respect of the subject matter of the petition.
In the circumstances, she prayed that a decree for judicial separation be passed against the respondent and further she be granted the custody of the children.
3. The respondent resisted the petition. While admitting the marriage with the petitioner, he asserted that his marital life with the petitioner was happy until about the end of 1965. He denied that his sisters were living with them, He had no house of his own in Kuwait and hence, they had to go and stay with his sister and her husband as paying guests. He denied that he was addicted to drink. He was drinking moderately on occasion, He denied that the struck his wife being drunk and treated her cruelly. He denied the incident of his sister crying as averred in the petition. According to him, during her pregnancy, the petitioner enjoyed remarkably good health and shed was given full medical attention. He further asserted that he asked here to stay in Mangalore for delivery as medical facilities were poor at her mother's palace at Karkal. He denied the incident that being drunk he hit the petitioner.
He further asserted that the petitioner had associations with on J.J. Sequoia who was also known as Bosco; the petitioner and Bosco were very much in each other's company during the respondent's absence. The said Bosco described even certain intimate details of the petitioner's body and he even confessed that he was deeply in love with her. One Hebbar created scandal at Ban galore by spending days and nights at the petitioner's residence. But nevertheless, the respondent, with his love for his wife, accepted her assurance that she had not committed adultery with him. He maintained the petitioner and children luxuriously. Since 1967, the petitioner received from the respondent various sums of money amounting to a sum of Rest.3,00,000/-.
He denied that he practiced any witchcraft. Britto was treating him for his heart and kidney infections. He denied that he wrote any threatening letter to his wife.
He learnt that one Asirvadhan, who was called Granny, was living with the petitioner and that was a scandal. He further asserted that petitioner's association with him still continued. He denied that he assaulted and twisted the hands of his wife, lodged a police complaint or gave a report against the petitioner.
He further asserted that he made everything in his power to make a success of his married life. But, despite the same, the petitioner treated the respondent with contempt although cohabitation continued till about the end of 1972. He asserted that the acts of cruelty alleged were condoned by the petitioner. According to him the petitioner had no affection for her children She was indifferent to their progress and was unfit to look after them. He was deeply attached to the children and he was willing to incur all the expenses connected with their maintenance and education. He was prepared to maintain them in one of the well-known Boarding Schools till he settled down in Bangalore. Hence, he prayed that the petition should be dismissed.
4. On these pleadings, the trial Court raised the following points for consideration :
(1) Whether the petitioner had been treated with cruelty by the respondent ?
(2) Whether the petitioner has condoned the cruelty of the respondent ?
(3) Whether the petitioner is entitled to the decree for judicial separation and also custody of the children
5. During hearing, the petitioner examined PWs. 1 to 3 viz., herself, Mr. I. L. Menders and Mr. Norman Mendenz. As against that, the respondent examined himself as RW 1 and examined RWs. 2 to 6 on his behalf. The petitioner got marked Exhibits P-1 to P-23 and the respondent got marked Exhibits D-1 to D-17.
6. The trial Court, appreciating the evidence on record answered Point No. 1 in the affirmative, Point No. 2 in the negative and, in that view, the trial Court passed a decree for judicial separation and further directed that one of the three children shall be admitted by the petitioner to a Boarding School in Bangalore if the entire expenses in that behalf for one year was deposited in advance by the respondent. That way, the petition was allowed with costs. Aggrieved by the said judgment and decree the husband (respondent in the petition) has come up with the above appeal before this Court.
7. Sheri. S. G, Sundaraswamy, learned counsel appearing for the appellant, strenuously urged before us that the trial Court was not justified in coming to the conclusion that the petitioner/ wife proved that the present appellant/husband treated her with cruelty so as to cause danger to her life, limb and health. (bodily or mental) or so as to give rise to a reasonable apprehension of such danger in her mind. He further submitted that even if there were stray instances of cruelty the petitioner had condoned them as she lived with him and, as such, she could not rely on any such cruel conduct on the part of her husband to seek a decree for judicial separation. According to him, bickerings in the family were a matter of common experience and such bickerings could not be made the basis of judicial separation which require graver acts and higher degree of proof. Hence, he submitted that the appeal was entitled to succeed.
8. As against that, Shri G. M. Rego, learned counsel appearing for the respondent in the appeal, argued supporting the decree passed by the trial Court.
9. The points, therefore, that arise for our consideration in this appeal are:
(1) Whether the trial Court was justified in holding that the petitioner proved that her husband (the present appellant) treated her with cruelty so as to cause danger to her life limb, health or reputation or so as to give rise to a reasonable apprehension of it in her mind? and
(2) Whether the trial Court was justified in holding that the petitioner had not condoned the cruel conduct, if any, on the part of her husband ?
(3) Whether the judgment and decree passed by the trial Court require to be interfered with in the interest of justice ?
10. The parties are Christians and they are married according to Roman Catholic rites. Hence, they are governed by the Act.
11. Section 22 of the. Act speaks of judicial separation. It reads:
'Bar to decree for divorce a mensa ettoro; but judicial separation obtainable by husband or wife. - No decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may, obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion without reasonable excuse for two years or upwards, and 'such decree shall have the effect of a divorce a mensa et toro under the existing law, and such other legal effect as hereafter mentioned.'
Thus, it is clear that the decree for judicial separation can be obtained on the ground of cruelty among other grounds.
Section 42 of the Act states:
'Power to make such orders after decree.- The Court, after a decree of judicial separation., may upon application (by petition) for this purpose make, from time to time, all such orders and provision, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending.'
Thus, the Court can also proceed to pass an order for the custody of the Children.
Section 7 of the Act makes it necessary for the Court to follow the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief. S. 7 reads:
'Court to act on principles of English Divorce Court. - Subject to the provisions contained in this Act, the High Courts and District Courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules which, in the opinion of the said Courts, are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief :
12. The term 'cruelty' is not defined in the Act. It is, therefore, necessary to interpret the terms as nearly as may be conformable to the meaning of cruelty' as interpreted currently by the Court for Divorce and Matrimonial Causes in England.
13. 'Rayden on Divorce., (Twelfth Edition 1974). at page 1130, states :
'Legal cruelty, may be defined as conduct of such a character as to have caused danger to life, limb, or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger.'
Similar is the definition of the term cruelty given in Halsbury's Laws of England. (Fourth Edition: 1975), in Volume 13, under para 1269, wherein it is stated thus:
'Cruelty generally. - The legal conception of cruelty, which is not defined by statute, is generally described as conduct of such a character as to have caused danger to life, limb, or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger. (Russell v. Russell, (1897) AC 395 at 467 (HL) : (1965) 2 All ER 82 at page 86 etc.)
14. It was once the view held by Matrimonial Courts in England that the standard of proof required in matrimonial cases was as in criminal cases 'beyond reasonable doubt. But, subsequently, it is held that the standard of proof necessary in a civil proceeding as in matrimonial cases is by preponderance of probabilities, the actual degree of preponderance depending upon the gravity of allegation made. That is the current view prevalent in England.
15. This Court, after a review of case law, has held so in the case, Roland Premkumar Gokuldas, Bangalore v. Mrs. Jyothsna Gokuldas, (ILR (1980) 2 Kant 1444).
16. In fact, the Supreme Court of India has also taken a similar view in the case of Dr. N. G. Dastane v. Mrs. Dastane, : 3SCR967 , in a matrimonial case under Hindu Law. This is what is laid down by the Supreme Court in para 24 of the judgment:
'The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, S. 3, a fact is said to be proved, when the court either believes it to exist or considers its existence so probable that a prudent ought, under, the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a. balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second, to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect tile status of parties demand a closer scrutiny than those like the, loan on a promissory note 'the nature and gravity of an issue necessarily determines tile 11-Yantler of attaining reasonable satisfaction of the truth of the issue' Per Dixon, J in Wright v. Wright. (19481 77 CLR 191 at p. 210; or as said by Lord Denning, 'the degree of probability depends on the subject-matter. In proportion as tile offence is grave. so ought the proof to be clear. Blyth v. Blyth, 1966-t All ER 524 at p. 536.' But whether the issue is one of cruelty or of a to all on a promote the test to apply is wh0her oil a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is tile. Standard of proof to apply for finding whether the burden of proof is discharged.'
The Supreme Court in para 25 has observed:
'Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issue of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not. be taken away on a mere preparedness of probabilities. if the probabilities are so nicely balanced that a reasonable, no& a vacillating. mind canton and where the preponderance Lies. a doubt arises regarding the oxi-Aeuce of the fact to be proved and the benefit of such reasonable doubt goes to the accused. it Ls wrong to import , such considerations in trials of a purely will nature.'
17. Adverting to condo nation, it is necessary to recall that a petitioner has to plead and prove that there is no collusion or connivance between. the Petitioner and the other party to the marriage,
18. Section 47 of the Act states :
'Petition to stat' absence of collusion every petition under this Act, for a decree of dissolution of marriage, or Of nullity of marriage or of judicial, separation shall state that them- is not any 6ollusion or connivance between the petitioner and the other party to the marriage,'
19. Speaking on the aspect of condonation of cruelty the Supreme Court of India, in the aforesaid case, has observed.
'Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as, he or she occupied before the offence, was committed, To constitute condonation there must be, therefore, two things: forgiveness and restoration: The Law and Practice of Divorce and Matrimonial Causes by D. Tolstoy. Sixth Ed P. 75, The evidence of condonation in this case is, in our opinion, as strong and satisfactory as the evidence of cruelty. But that evidence does not consist in the mere fact that the spouses continued to share a commonly home during or for some time after the spell of cruelty. Cruelty generally does not consists of a single, isolated act but consists in most cases of series of acts spread over a period of time does not require that at tile first appearance of a cruet act, the other spouse must leave the matrimonial home test the continued cohabitation be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the benign purpose of marriage laws.
Tile evidence of condonation consists here in the fact that the spouses led a normal sexual life despite the respondent's act-,, of cruelty. This, is not a where the spouses, after separation, indulged in a stray act of sexual intercourse, in which case -the necessary intent to forgive and restore may be said to be lacking. Such stray acts may bear more than one explanation. But if during cohabitation the spouses, uninfluenced by the conduct of the offending spouse. lead a life of intimacy which characterizes normal matrimonial relationship, the intent to and restore the, offending spot. to tile original quality may reasonably he inferred .................'
The Supreme Court in para 57 has further explained.
'But condo nation of matrimonial Offence is not to be likened to a full Presidential Pardon under Art. 12 of the Constitution which, once granted, wipes out the guilt beyond the possibility of revival. Condonation is subject to implied condition that the offending spouse will not commit a fresh matrimonial of-fence, either of the same variety as the one condoned or of any other variety.
No matrimonial offence is caused by condonation. It is obscured but not obliterated. See Words and Phrases Legally Defined (Butter Worths), 1969 Ed. Vol. 1, P. 305 ('Condonation'). Since the condition of forgiveness is that no further matrimonial offence shall occur, it is not necessary that the fresh offence should be eludes generic with the original offence. (See Halsbury's Laws of England. 3rd Ed., Vol. 12, p. 306). Condoned cruelty can therefore be revived, say, by desertion or adultery.'
The law in Matrimonial causes in England is the same in this behalf.
20. Rayden on Divorce (Twelfth Edition), al page 1165, under the rubric 'Condonation' states:
'Condonation is the reinstatement in his or her former marital position of a spouse who has committed a matrimonial wrong of which all material facts are known to the other spouse with the intention of forgiving and remitting the wrong, on condition that the spouse whose wrong is so condoned does not thenceforward commit any further matrimonial offence. Condonation therefore consists of a facture of reinstatement and an animus remitted. Adultery or cruelty shall not be deemed to have been condoned by reason only of a continuation or resumption of cohabitation between the parties for one period not exceeding three months, or of anything done during such cohabitation, if it is proved that cohabitation was continued or resumed. as the case may be, with a view to effecting a reconciliation '
It is further stated in para 43 at page 1167 thus:
'Mere forgiveness of a matrimonial offence, whether expressed orally or by letter, cannot amount to condonation, unless it is followed by the reinstatement of the offending spouse in his or her former marital position.'
Again in para-44 at page 1168, it is stated --
'Reinstatement is not sufficient without proof of an intention to forgive and remit the wrong.'
21. Similarly, there should be no connivance. Rayden, speaking on this aspect at para 50, page 1176. states :-
'Connivance implies an anticipatory Consent to adultery committed by the other spouse. It may be active or passive acquiescence in. or toleration of, the adultery; but mere negligence, inattention or overconfidence, not amounting to intentional concurrence and consent, are not connivance. Where, however a spouse bona fide and reasonably believes that the other is committing adultery, and, in order to get proof, follows or observes and does not interfere while adultery is being committed, such following or observations and non-interference does not amount to connivance. Connivance at adultery with one person may preclude relief in respect of adultery with another.
22. Another special feature that has to be borne in mind while considering the facts of the present case is that the Court cannot apply the test whether a reasonable man situated similarly will behave in a similar fashion. The apprehension of the petitioner that it will be harmful or injurious to live with the other party has to be reasonable. It is wrong however, to expect in the context of such apprehension to import the concept of a reasonable man as known to the law of negligence for judging matrimonial relations.
23. As observed by the Supreme Court of India in para 32 of the judgment in the aforesaid decision.
'........ Spouses are undoubtedly suppose and expected to conduct their joint venture as best as they might but it is no function of a court inquiring into a charge of cruelty to philosophies on the modalities of married life. Some one may want to keep late hours to finish the day's work and some one may want to get up early for a morning round of golf. The Court cannot apply to the habits or hobbies of these the test whether a reasonable man situated similarly will behave in a similar fashion,
The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances.' American Jurisprudence, 2nd Edn., Vol. 24. P. 206. The Court had to deal, not with an ideal husband and an ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go 10 a matrimonial court for, even if they may not be able to draw their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures. As said by Lord Reid in his speech in Gollins v. Gollins, (1963) 2 All ER 966:-
'In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people.'
24. Bearing these salutary principles of established law we would proceed to consider the facts of the present case.
25. It has been averred by the petitioner/wife that ever since her marriage with the respondent, her life has not been happy and that she has been treated with cruelty by her husband. Her marriage took place on '21-8-1961. There after she went to stay with her husband in Kuwait on 5-10-1961. Her husband had then no independent house, He was staying as paying-guest in the house of his sister and brother-in-law. She has averred that his sister and in-laws did not take her with sympathy and kindness. She had further complained that she was made to cook f or a] I of them, by her husband. It is also her case that without any rhyme or reason, the sister of the husband found fault with her and actually her husband compelled her without any reason who also ever to seek the forgiveness of his sister which she had to do under compulsion. Whenever her husband received any let containing disturbing news from her home, he would behave in a very rude and cruel manner with her and beat her and, ultimately, when she was to leave Kuwait for confinement to India on 30-4-1962 for her first delivery, her husband required her to go to his mother's house instead of to the house of her mother as was customary.
She went back to Kuwait after the delivery of the first child, namely Arthur in Dec. 1962. By then, no doubt, her husband had a separate home. She was expecting that things would moT smooth. But to her great dismay and surprise, her husband continued to drink heavily and spoiled every good occasion by quarrelling and hitting the petitioner and her little son Arthur. That made her a nervous wreck as she had to live in perpetual fear of life and limb. Thereafter, she has given a concrete instance of the cruel behaviour of her husband in Dec. 1964, on 23-12-1964, her husband received a letter from his sister regarding some money matter and that upset her husband and he attacked the petitioner in the presence of a friend by banging the head of the petitioner against the wall and also by strangling her. If it were not for the timely intervention of the friend, the petitioner would have according to her, lost her life. Her husband, then, picking up a knife and a screw-driver, threatened to kill the petitioner and the children. The petitioner's brother who was then working in Kuwait was sent for. But when her brother arrived her husband behaved as if nothing had happened. He also forced the petitioner not to re-veal anything concerning his misconduct on that occasion. After the petitioner's brother left, her husband got the petitioner to pack her clothes, then brought a can of petrol and threatened to burn all her clothes. According to her, her husband was brought to his senses by a friend who was present. The petitioner has further averred that the years 1965, 1966 and 1967 were no better.
She has averred that in the year 1967, she was expecting her third child. In the interest of child's education and also for confinement she came down to India. Her husband no doubt accompanied her and later went back to Kuwait as he was working for Getti oil Company there.
In Jan. 1967, her third child Brian was born. A new house was purchased in Bangalore and the petitioner and her children moved into the new house.
Even her husband was staying for a few days in India. During that time, by heavy drinking, quarrelling and beating, her husband made her life miserable.
Her husband came back in 1968 to India and implored her to go back to Kuwait, as the Company would meet the expenses. The petitioner went to Kuwait in July 1969 and returned to India in early 1970 as her husband made her life intolerable.
Her husband came down to India in Oct. 1970. He stayed in India quite for one time, He got drunk and misbehaved before all and sundry. He went back to Kuwait in Jan. 1971 and started writing threatening letters. He would not even send money for maintenance. At the end of 1971, her husband came down to India as his mother was ill on 21-12-1971. Her husband as usual got heavily drunk and locked himself in the bathroom for not less khan five hours, broke every thing on which he could lay his hands in the bathroom, including the toilet bowl and attempted to commit suicide. The petitioner's eldest son who went to see what was happening noticed that his father was making preparations to commit suicide by hanging himself with a rope. Petitioner's younger brother was sent for and he induced her husband to come out on the pretext of joining him in a drink. Her husband came out with a knife and went to kill her and her children. The petitioner and her children locked themselves in a room to escape the fury of the respondent (husband), Her husband broke the door and came to the petitioner with a tea-poy and she was rescued by his brother who managed to take her husband to his house. Before going, her husband attempted to set fire to the curtains in the house.
That night her husband returned after mid night, drunk, into the house with a knife in hand and tried to assault the petitioner and her children. The petitioner's brother who came earlier to warn the petitioner of her husband's approach, rescued the petitioner and her children. Her husband went into the garage saying that he would commit suicide. He remained there till 3.00 A. M. He again came into the house with a knife and wanted to know what the petitioner wanted and the petitioner told him that it was impossible for her to live with him. A cable was sent to Kuwait to the elder brother of the petitioner who came down to India on 31-12-1971. Her husband cooled down on seeing him and pleaded that he would bring down Britto who would set right everything. Her husband left for Kuwait on 7-1-1972. From there, he wrote threatening letters to the petitioner and ran her down to everyone.
According to the petitioner, her husband came down to India on 9-11-1972. He wanted to practise black magic with the petitioner. He went to Mangalore and brought some leaves, broomsticks and some liquid etc., which he kept under lock and key, He threatened all the friends of the petitioner not to visit her and he was not allowing the petitioner to go anywhere. He left for Kuwait on 29-1-1973.
Being harassed by her husband and having suffered physically and mentally and having been subjected to the apprehension of danger to her life and limb, the petitioner instituted the petition for judicial separation before the District Judge, Ban galore on 28-51973.
Even after the filing of the petition, her husband returned to India in 1974 and assaulted the petitioner and her children and lodged a police complaint against her as a consequence of which she had to face criminal trial. He brought a number of policemen to the house to search the house and to prepare an inventory and harassed the petitioner in every way. He also attacked her and twisted her hand and gave her beatings. She obtained a medical certificate in that behalf.
Thus the petitioner has averred that it has become impossible for her to stay with the respondent because of his cruel conduct.
26. The petitioner has spoken to these during trial in her evidence and she has examined her brother I. L. Menders about the incident that she described happening in Dec. 1971. She has further examined one Norman Mendenz, another brother of hers who was in Kuwait during the relevant time. He has spoken to the incident of 1964 in Kuwait. He has also spoken to the incident that happened on 30-12-1971. He received a cable in Kuwait asking him to go down to India, as there was serious trouble to his sister. He took the earliest flight and came down to Bangalore on 31-12-1971 and came to know about the incident.
27. In addition to the oral evidence, the petitioner has produced the letters received by her from her husband. These go to establish the averments made by her in the petition and the fact that her husband was addicted to heavy drinking and being under the influence of alcohol he was ill-treating his wife.
28. Though the husband, in his written statement as well as in his evidence, denied that he was a heavy drunkard, he has admitted that he was a heavy drunkard and that he was addicted to drink in several of his letters written earlier. For example, in Exhibit P-5 dt. 5-3-1970, he has written inter alia thus:-
'Yes, I drink why I should not drink? I drink because I like drinks. HA! HA! right now I am on my 4th.'
At the end of the letter he has added a post-script which reads:-
'Once again I repeat. 11 drink because I like drinks'.
He has also admitted to several of his letters that he struck his wife five or six times.
29. Thus reading the evidence as also the letters, it becomes obvious that the husband is given to heavy drinking and under the influence of alcohol he has been harassing his wife.
30. It is true 'Drunkenness,, per se is not cruelty, (Baker v. Baker (1955) 3 All ER 193); but it may be, for example where it is persisted in, particularly after warnings that such conduct is injuring the other spouse's health. But where it is alleged that the defendant is a habitual drunkard that is sufficient ground in itself on which to seek a matrimonial order. Further, a spouse is entitled to the protection of the Court against acts of cruelty committed by the other spouse when suffering from the effects of drink, (Vide: Para 23, page 1148, of Rayden on Divorce, Twelfth Edition).
31. As pointed out by the Supreme Court of India in the aforesaid case I the wife may not rush to a Court for judicial separation even at the very first instance of cruelty. The 'evidence in this case shows that though as early as in the year 1964 the husband misbehaved with her and treated her cruelly and she sent for her brother, as soon as her brother came. at the command of her husband. she did not reveal anything to him. She pretended as if nothing serious has happened. That is normally the conduct of any dutiful house-wife.
32. Life is, after all, not a bed of roses. It is full of ups and downs. the pains and sorrows as well as the joys and pleasures - all together make up 'Life's fitful fever. As the Great Poet Shelley has put it:-
'Life. like a dome of many-coloured glass.
stains the white radiance of Eternity.' As another Poet has put it, in life :-
'To each his sufferings: all are men, Condemned alike to groan;
The tender for another's pain,
The unfeeling for his own.' That is why the poet has exclaimed:
' Where ignorance is bliss.
'Ts folly to be wise '
33. In normal family life also there are bickering and quarrels. Either spouse cannot rush to Court on the occasion of the very first quarrel. In fact, it is well said that in the case of happy couple, occasional quarrels bring them closer. But when as in the present case, may be due to heavy drinking, the husband starts beating his wife giving her troubles and in spite of protests and imploring by the wife, the husband persists a stage would be reached when it becomes intolerable for the wife to stay with her husband. She apprehends danger to her life and limb and she actually suffers physically and mentally. She suffers from nervous break-down then it is but natural that she would be compelled to approach the Court for a judicial separation. The facts of the present case reveal such a sorry tale.
34. Not merely that, the husband has in his talks and in his letters made reckless allegations about the character of the present petitioner. He has reaffirmed it in his statement of objections.
35. 'Rayden on Divorce,, (Twelfth Edition), speaking on this aspect at para 22 page 1147, states:-
'Threats of actual personal violence may constitute cruelty: as may the use of offensive language, or false accusations of adultery, incestuous adultery, or of unnatural practices.
But to constitute cruelty such conduct must give rise to injury to health, or reasonable apprehension of it.'
36. On the facts of the present case, the petitioner has averred that due to such conduct of her husband her health has failed and she has become a nervous break-down patient. That also is a good ground for judicial separation and the learned District Judge has considered both the aspects in granting a decree for judicial separation. We have no compelling reason to differ.
37. The learned Counsel appearing for the appellant strenuously argued before us that till the end of 1971, at any rate the couple continued to enjoy marital happiness inasmuch as they had sexual intercourse and, as such, according to him, the acts of cruelty, if any, were condoned by the wife and the same could not be made the ground for relief in the petition.
38. We have set down above the principles regarding condonation. Condonation is not unconditional. It presupposes proper subsequent conduct on the part of the other spouse. If after condonation, any acts of cruelty are committed again of the same kind or of any other variety then the earlier acts of cruelty would revive.
39. In the instant case, as rightly pointed out by the learned Counsel appearing for the respondent (Wife), even after the filing of the petition for judicial separation, the husband filed a false complaint against the petitioner complaining of theft and robbery as a result of which she was subjected to physical and mental harassment. She was summoned to the Police Station. Police in number, at the instance of the husband, visited the house, effected an inventory and ultimately, the complaint was discharged as groundless by the learned Magistrate; (Vide: Exhibit P-21 dated 3-1-1975).
40. Again, the petitioner has complained that her husband, without any reason whatsoever, beat her, twisted her hand as a result of which she was constrained to approach a doctor. The medical certificate is at Exhibit P-22. It is with regard to an injury suffered on 13-5-1974 i.e., after the filing of the petition.
41. Thus, it is obvious that in view of these acts of cruelty committed by the husband, both physical and mental, all the earlier acts get revived even assuming that there was condonation earlier. There is no substance, therefore, in the argument that the wife has condoned all the previous acts of cruelty and, as such, they cannot be made the ground for judicial separation.
42. Further, the evidence on record shows that though the husband in some of his letters has stated that he seeks the forgiveness of his wife for any acts of cruelty that he might have committed it is obvious that it has no real meaning whatsoever in reality. The fact remains that though the Court ordered the respondent to pay alimony during the dependency of the hearing, he has not paid the same to the wife for years together. That again is an act of cruelty. Even during hearing of the appeal, there was no move on the part of the husband to deposit anything in Court towards the amount of alimony over-due. The wife has no support and she was to support her three children born out of wedlock.
43. In the circumstances therefore we are satisfied that the trial Court was fully justified in coming to the conclusion that the wife (original petitioner) has proved the acts of cruelty on the Part of her husband which justify a decree for judicial separation.
44. The point regarding custody of children was not pressed for our consideration.
45. In the result, therefore, we hold that the appeal is devoid of merits and is liable to be dismissed and we dismiss the same, with costs.
46. Appeal dismissed.