Gopal Rao Ekbote, J.
1. The respondent and her daughter instituted the suit for maintenance. It was alleged that the respondent married the appellant some thirty years before when she was ten years old. After attaining puberty she joined her husband. The 2nd plaintiff was born to them. The wife alleged that the husband was living with one Vadde woman by name Kami and was having illicit intimacy with her. Later on he brought her into the same house where the wife and her daughter were staying. It was also stated that the husband was ill-treating the wife and subsequently abandoned the plaintiffs. The wife therefore had to earn her livelihood and make arrangements of the 2nd plaintiffs marriage. Unfortunately her (2nd plaintiff's) husband died and as there was nobody to look after her in her husband's house, she had to come back and stay with her mother. It is on these grounds maintenance for both was claimed.
2. The defence set up by the husband was that he never illtreated the wife, nor abandoned her. He was not having any illicit intimacy with any woman, nor brought any woman to his house. He alleged that the Ist plaintiff, the wife, was lending an adulterous life, she left her husband and lived with one P. Laxmiah for three years. Later on she got into intimacy with another person, Jagu Suhbaramayya and lived with him for about five years and later on lived with Chekuru Kotayya for about ten years. She left him also and now is living as the concubine of Beludari Nagayya. It was therefore, contended that she is not entitled to any maintenance. It was also alleged that the defendant was not liable for maintaining his widowed daughter as she can got the maintenance from her husband's relatives.
3. Upon these pleadings the trial Court framed appropriate issues and after recording the evidence of the parties found all the allegations made in the plaint by the plaintiffs as not proved. It was also found that the allegation made by the husband that the wife was leading an adulterous life was satisfactorily proved. The trial Court did not hold responsible the defendant for the maintenance of his widowed daughter. Consequently the suit was dismissed.
4. Aggrieved by that decision the plaintiffs preferred an appeal to the Subordinate Judge, Kavali. The learned Subordinate Judge allowing the appeal granted maintenance only to the wife and rejected the claim of the 2nd plaintiff, the widowed daughter, on the ground that she is not entitled to it from her father. It was found by the lower appellate Court that the accusations of adultery made by the husband are unfounded. It is only on that ground alone that the wife was found entitled to the maintenance. The lower appellate Court did not consider any allegations made in the plaint by the plaintiffs on the basis of which maintenance was sought. It is relevant to note that the plaintiffs did not ask for maintenance on the ground that unfounded accusations of adultery were made by the husband. It is this view of the learned Subordinate Judge that is now assalied in this second appeal filed by the defendant, the husband, No appeal was filed by the widowed daughter.
5. The principal contention of Mr. A. Kuppuswamy, the learned counsel for the appellant, is that the learned Subordinate Judge has erred in granting maintenance merely on the ground that unfounded accusations of adultery were made in the written statement against the wife, when there is neither any allegation nor any proof of the fact that this allegation affected her physical or mental health,
6. In order to appreciate this contention it is necessary to read the relevant portion of Section 18 of the Hindu Adoption and Maintenance Act (Hereinafter called the Act).
'18. (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance.
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
Now Section 18(2)(b) of the Act is identical in terms with Section 10(1)(b) of the Hindu Marriage Act. A close analysis of this provision of law would disclose that in order to attract this clause two things must exist. Firstly the wife must have been treated with cruelty and secondly the cruelty must be such as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband.
7. The term 'cruelty' used in these enactments would show that no attempt was made to define the kind or degree of cruelty which falls within the ambit of these provisions by any relevant statute. This is so both in England as well as in India. The danger in defining such a term is obvious. Human conduct varies infinitely and the facts and circumstances in each case will be so different that it is almost impossible to lay down a precise definition of the term 'legal cruelty' which must apply to all the cases. The various factors which present relevant considerations of vital importance in such cases are so numerous that the acts may be said to amount to 'legal cruelty' in one case, may not be sufficient to fulfil the requisite test in another case.
8. The law on the subject therefore, has to be gathered from the important cases decided in England. Courts in India, it will be clear, have accepted and adapted to conditions in India the principles enunciated in those English cases. A reading of some of the important cases in this behalf would indicate that the term 'legal cruelty' has been broadly defined thus:
'Conduct of such a character as to have caused danger to life, limb or health (bodily or mental), or to give rise to a reasonable apprehension of such danger.'
That is the principle enunciated first in Russell v. Russell, 1897 AC 395 by the House of Lords. In that case it was held that a false charge of having committed an unnatural criminal offence brought by a wife against her husband although published to the world and persisted in after she did not believe in its truth, is not sufficient evidence of legal cruelty to entitle the husband to a judicial separation. This decision has been subsequently followed not only by the English Courts, but also by the Indian Courts. In Jamieson v. Jamieson, 1952 AC 525 it was further mid down that cruelty has to be inferred from all the facts and the matrimonial relations of the parties and their inter-action in their daily life disclosed in the evidence. The question whether the husband treated the wife with cruelty is always a question only to be answered after all the facts have been taken into account. It will be a mistake to put the various alleged acts or conduct into series of separate compartments and then say of each of them that by themselves they cannot pass the test of cruelty and, therefore, that the totality cannot pass the test.
9. In King v. King, 1953 AC 124 it was held that in considering a charge of cruelty by nagging the right approach is not to ask first whether the conduct of the respondent spouse was cruel in fact and then to examine whether it could in any way be justified. The question whether a spouse has behaved cruelly is a single one and can only be answered on a consideration of the whole matrimonial relations. It was also laid down in that case that wilful accusations made by one spouse against the other, which are untrue and for which there are no probable grounds, may not amount to cruelty it they have been provoked by the cruel conduct of the other spouse.
10. Turning now to the Indian cases, Augustin v. Augustin, (1882) 4 All 374 appears to be the leading case. It was ruled there that a false charge by a husband against his wife of adultery, although such charge is made wilfully, maliciously and without reasonable or probable cause, is not an act amounting at law to cruelty, so as to entitle the wife to a judicial separation. This decision it is true cannot be said to lay down that this principle will be applicable even to cases where physical or mental injury as a consequence of this allegation is also proved. The general principle referred to above that in such cases the totality of relations of the parties and all the relevant circumstances must be considered, is in this respect of special significance. When cruelty consists not of violent acts but of injuries, reproaches accusations or taunts, what the said decision says is that wilful accusations of adultery may be made, which are not true and for which there are no probable grounds and yet they would not amount to cruelty at law. 1953 AC 124, provides an example whether it was observed that such accusations may have been provoked by the cruel conduct of the other spouse. What must follow is that malicious charges of adultery persistently made in bad faith may fall under Section 18(2)(b). If in the light of the entire facts of the case the Court is satisfied that the mental or physical health of the wife was on account of such false accusations seriously impaired, or that it provided a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband, the criterion to be applied in all such cases is not however to find out what effect such accusations can produce in the minds of others but what has to be seen is the consequences of such accusations on the health of the wife, whether mental or physical actual or apprehended.
11. To the same effect is an earlier case decided by the Bombay High Court. That is Yamunabai v. Narayan Moreshwar, (1875-77) ILR 1 Bom 164, where a Hindu husband had filed a suit against his wife for the restitution of conjugal rights. The scope and meaning of the term 'legal cruelty' justifying the wife's desertion was held to be the same in India as in England viz., whether there has been actual violence of such a character as to endanger personal health or safety or whether there is me reasonable apprehension or it.
12. A Bench of the Oudh Chief Court in Niblett v. Niblett, AIR 1935 Oudh 133 ruled that a false charge by the husband against his wife of misconduct although such charge is made wilfully, mallciously or without reasonable or probable cause, is not an act amounting in law to cruelty so as to entitle the wife to judicial separation, unless the wife has suffered any mental injury or injury to health by reason of the insinuations or imputations, nor will this constitute reasonable excuse for her deserting him.
13. Sarah Abraham v. Pyli Abraham, AIR 1959 Ker 75, decides this point almost on the same fines,
14. What must follow from the above discussion is that the mode of dealing with or the behaviour of the husband towards the wife which must be wilful, must also be of such a character in order to amount to legal cruelty, that it must cause suffering in body or mind, whether in realisation or apprehension, rendering injurious or harmful to live with her husband.
15. This conclusion gathers support from the following passage in Halsbury's Laws of England, III Edition, Vol. 12, Page 274. Para 523:
'Mere vulgar, or even obscene, abuse, or false accusations of adultery, incestuous adultery, or unnatural practices, are not grounds for relief except on the principle of cumulative cruelty of a kind injuring health or calculated to do so.' see also Rayden on Divorce, Sixth Edition, page 105.
16. It will thus be plain that the legal conception of cruelty comprises of two distinct elements and in order to succeed the wife must prove both. She must firstly prove the ill-treatment complained of, and secondly the result and danger or apprehension thereof. I have already stated that these questions have to be resolved after taking into consideration the entire matrimonial relations and behaviour of the parties together with all relevant factors. This enquiry must be directed to find out whether the cruel treatment is established and further whether the cruel treatment is of such a nature as to cause in the mind of the wife a reasonable apprehension that it will be harmful or injurious to live with her husband. I have also stated that such danger or apprehension must be to the wife. It would be inaccurate and liable to lead to contusion if the word 'cruelty' is understood apart from its effect on the wife,
17. That position of law is now recognised statutorily in Section 18(2)(b). That being the position of law as I understand it, let me examine the following two cases which, I am told, strike a different note. In Dwaraka Bai v. Nainan, AIR 1958 Mad 792, a learned single judge of the Madras High Court although held that our divorce law Is based on the English law and after holding that the allegations of unchastity against the wife are as unproved as the charges of adultery against the husband made the following observation:
'I cannot agree with Mr. Thyagarajan that making such statements of Othello-like jealousy against a wife will amount to cruelty under Section 10, Indian Divorce Act, though deliberate attribution of immorality to a wife with named persons will certainly, under many rulings of this Court and other Courts, entitle the wife to resist a petition for restitution of conjugal rights filed by the respondent,'
18. Relying upon the above passage it is argued that distinction must be made between an allegation of adultery with named persons and a general allegation of adultery. It was contended that while the former allegation, i(sic) untrue would by itself constitute legal cruelty within the meaning of Section 18(2)(b) without requiring any further proof of any derogatory effect upon the mental or physical health of the wife, whereas in the latter case such proof may be necessary according to the position of law discussed above. I do not think there is any justification for any such distinction. Section 18 does not recognise any such distinction. I do not think that the learned judge intended to lay down the law that in a case of accusations of adultery with named persons it is not necessary to Further prove the effects of such accusations on the mental or physical health of the wife. Any such interpretation would be quite contrary to section 18(2)(b) of the Act. It is evident from the above said extract that his Lordship was not deviating from the law settled by various decisions. N reference to any particular decision was made which recognises such distinction. The learned Advocates for the parties in spite of their industry could not cite any case of the Madras or any other High Court, which recognises such distinction for the purpose of holding 'legal cruelty' nor am I aware of any such decision. The said decision of the Madras High Court therefore, has to be understood in the light of the English and the Indian decisions referred to above. Head thus, it will be clear that there is no warrant for making any such invidious distinction in the face of Section 18 of the Act. There does not also appear to be any logic behind it. Suppose A wife is accused generally of leading a prostitute's life, in such a case according to such distinction in spite of this worst charge further proof of its impact on the wife may be necessary, whereas it may not be necessary' if she is merely accused of adultery with a named person. A plain reading of Section 18(2)(b) of the Act however requires in all such cases a proof that such cruel treatment has proved to be harmful or injurious or is apprehended to be so.
19. Reliance was then placed on Rajya Lakshmi v. Venkata Subbarao, 1955 Andh LT 161 at p. 167. A learned single Judge of this Court after recording a finding, as was the case with the abovesaid Madras decision, 'that there is really no evidence establishing any unchastity on the part of the wife', observed:
'It has been held in several decisions of the Madras High Court that imputation of unchastity to a wife amounts to cruelty so as to entitle her to maintenance.'
After finding that the alleged unchastity is not proved it was not necessary in both these cases to make any general observations in regard to law on this subject. The case of this Court just now referred to goes a step forward than the abovesaid Madras case and observes in unqualified terms that mere imputation of unchastity to the wife amounts to cruetly. I do not think that there is any such decision of the Madras High Court. No such decision could he brought to my notice which lays down so broadly and in an unqualified manner that mere imputation of unchastity without any further proof amounts to 'legal cruelty' within the meaning of Section 18(2)(b) of the Act. A caution administered by Denning L.J., in a recent case Kaslefsky v. Kaslefsky, 1950-2 All ER 398 at p. 403 is relevant and ought to be kept in view when considering the scope and meaning of 'legal cruelty'.
'It the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of the temperament. That is an easy path to tread, especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperiled.'
These decisions therefore, must have to be understood in the light of what is discussed above in detail. To my mind they do not lay down a general rule of law that mere imputation of adultery, whether with a named person or generally, by itself constitutes legal cruelty without am further proof of its impact on the health of the wife and is enough to grant relief under Section 18(2)(b) of the Act.
20. Viewed in this background I do not find any difficulty in holding that the learned Subordinate Judge has erred in granting relief to the wife under Section 18(2)(b) merely because the husband has made unfounded allegations of adultery with named persons against the wife. It is to be noted in this connection that the wife in her petition did not ask for any relief on the ground that she was accused of false charges of adultery with named persons by the husband and that it has in any manner affected her mental or physical health and it has become harmful or injurious to live with the husband. In the absence of any such allegation and proof the wife cannot get any relief under that provision of law. It is not in dispute that this accusation was made in the written statement and in reply to the accusation which the wife had made in her plaint that the husband is living an adulterous life with a named woman, Kami. It has not been enquired into whether these accusations are made as a result of provocation or they were malicious. Nor any enquiry was made as to how these accusations actually affect the wife. I do not therefore, think that the wife can in this case get any relief under Section 18(2)(b) as there is no allegation or any proof of the impact of such unfounded accusations of adultery on her health.
21. The case therefore, will have to go back to the lower appellate Court for the consideration of the other allegations made by the wife against the husband in her petitions, which were found to be untrue by the trial Court. It would have been better if the lower appellate Court had also considered them. No doubt there are some vague references to these allegations but admittedly there are no clear findings on those matters. In fact the trial Court framed the issues only on those allegations made in the plaint and had given express findings in regard to them, although it gave findings in regard to the accusations made by the defendant. The appellate Court however confined its consideration only to the accusations of adultery made by the husband against the wife, but did not at all consider or give any finding in regard to the grounds upon the basis of which relief under Section 18(2)(b) of the Act was sought by the wife in her plaint. For the consideration or the same therefore, I have necessarily to send back the case to the lower appellate Court.
22. For the reasons mentioned above, the appeal is allowed, the judgment of the Court below set aside and the case remitted to the Subordinate Judge's Court, Kavali, for its disposal on merits and in accordance with the law. The costs of this appeal will depend upon the result of the suit. No leave.