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Gopal Krishan Sharma Vs. Dr. Mithilesh Kumari Sharma - Court Judgment

LegalCrystal Citation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2282 of 1976
Reported inAIR1979All316
ActsHindu Marriage Act, 1955 - Sections 13(1)
AppellantGopal Krishan Sharma
RespondentDr. Mithilesh Kumari Sharma
Appellant AdvocateSri Kant Sharma and ;P.S. Misra, Advs.
Respondent AdvocateR.N. Bhatta, Adv.
DispositionAppeal allowed
(i) family - decree of divorce on account of cruelty - section 13 (1) (ia) of hindu marriage act, 1955 - mother in law of respondent criticizing, nagging and calling her names - failure of husband to restrain third person from committing assault on wife in his presence does not amount to cruelty - respondent's grievance against mother in law not husband - in trial and appellate court appellant offered to separate from mother - respondent did not accept - charge of cruelty on conduct of husband not established as seen from character and personality of appellant and surrounding circumstances. (ii) ground of 'desertion' - section 13(1)(ia) of hindu marriage act,1955 - animus deserendi not established - appellant made efforts of reconciliation - charge of desertion cannot be held - appeal.....gopi nath, j.1. this is a husband's appeal from the judgment and decree of the district judge meerut, dated 28-10-1976 allowing the wife's appeal in a petition for divorce and decreeing the same. the petition was filed on the grounds of cruelty and desertion.2. parties are brahmins by caste. they were married according to hindu rites on 24-11-1962. the appellant was 26 and the respondent 22 years of age at the time of marriage. their fathers were high placed officers in the education department. the appellant's father was the principal of the government college at nainital while the respondent's father was an officer posted at lucknow. their traditional faith in religion and its rituals is not in doubt. the appellant's parents were conservative in views and had an orthodox way of living......

Gopi Nath, J.

1. This is a husband's appeal from the judgment and decree of the District Judge Meerut, dated 28-10-1976 allowing the wife's appeal in a petition for divorce and decreeing the same. The petition was filed on the grounds of cruelty and desertion.

2. Parties are Brahmins by caste. They were married according to Hindu rites on 24-11-1962. The appellant was 26 and the respondent 22 years of age at the time of marriage. Their fathers were high placed officers in the Education Department. The appellant's father was the Principal of the Government College at Nainital while the respondent's father was an officer posted at Lucknow. Their traditional faith in religion and its rituals is not in doubt. The appellant's parents were conservative in views and had an orthodox way of living. The appellant at the time of marriage, was an Assistant Conservator of Forest while the respondent was a student of the M. B. B. S. When the respondent's father approached the appellant's father for the marriage of his daughter with his son, the appellant's father, an educationist with views very set in domestic living, made it plain to the respondent's father that the advanced studies of his daughter in medicine would not be permitted to be utilized by her for a profession or service career in medicine. The respondent's father consulted his family and again approached the appellant's father with his proposal for marriage. It was accepted and the marriage was performed according to Hindu rites on 24-11-1962. The parties bound themselves into a sacred wedlock and promised to remain united. None of them could then imagine that one would get sick of the other and seek for a release. But living, as we do, in an era of disintegration and growing disillusionment this marriage could not last long. The fault does not appear to lie much with the parties. The case unfolds a story of unhealthy relations between the mother-in-law and the daughter-in-law, a feature not uncommon in families in this country. The respondent's complaint is that she was ill-treated by her mother-in-law and the husband did not intervene, hence she could not live with him.

3. To resume the narration of events, the respondent, after her marriage, went to Nainital with her husband where they lived in the Government accommodation provided to the husband's father who was the Principal of the Government College. The husband and wife lived together from 26-11-1962 to 30-11-1962. The respondent then returned to her parents. She wrote to her husband on 17-12-1962 referring to the consummation of marriage besides many other nice things. Her next visit to her husband was around 18th May of 1963. She lived with him till 23rd August, 1963. They were at Nainital from 18th May, 1963 to the 1st week of July, 1963 and thereafter at Delhi where the appellant's father had a house. The respondent then left for her parents. She went to her husband on 22nd November, 1963. They lived together from 22nd November, 1963 to 7th October. 1964 at different places where the appellant had to go on tour. During this period, the appellant's father died on 25th May, 1964. The appellant's mother thereafter lived with his son. The respondent returned to her parents after 7th October, 1964. She joined the M. D. Course at Kanpur in January 1965 and also took up a job as a Demonstrator in the Medical College. This was not liked by her husband. He belonged to a conservative family. The respondent appeared to be forward in views. The relations between the mother-in-law and the daughter-in-law did not appear to be happy. The mother-in-law often criticised the respondent about her living habits and sometimes rebuked her as well. This is indicated in the respondent's letter dated 19th May, 1964 (Ext. A-1) to her husband in which she said that the reproaches of her mother-in-law were instructive but what she did not like was his indifference to them. The respondent came to her husband in July, 1965 and lived with him at Meerut till 29th of November, 1965. She finally went back to her parents on 30th of November, 1965, never to return to her marital home.

4. The respondent's case was that her mother-in-law was greatly dissatisfiedwith the dowry given by her parents and she was so annoyed that she never allow* ed the appellant to meet the respondent or permitted them to live as husband and wife. She had a complete hold on her son and it was alleged that even in her first visit to her marital home the respondent was not allowed to meet her husband and live with him with the result that the marriage was never consummated. The subsequent visits also ended in the same fashion, and the parties never enjoyed a marital life. The respondent was treated as an out-caste and was required to cook meals for the family, clean the utensils, wash the clothes, dust the floors and work like a maid servant, and the mother-in-law was all the time nagging at her and calling her names. During the lifetime of her father-in-law it was alleged that there was some restraint on the mother-in-law but after his death she became unbearable. This ruined her health. She made complaints to her husband but he showed his inability to intervene as he could not offend his mother. Lack of affection for the wife is not pleaded. What is complained of his weakness to stand up against his mother. It was alleged that she had been impressing upon the appellant that she was a full-fledged doctor and to what use was her education if she was to live like a house-maid. Her complaint was that her husband had neither the will nor the mind to change things, and she had to go back to her parents many times. Even after her visit to the matrimonial home in July, 1965 and till she went back to her parents in November, 1965 she did not find any change in the behaviour of her mother-in-law or the attitude of her husband. She had thus been treated with cruelty by them since her marriage till her final departure to her parents. Her further complaint was that after she had left on 30th November, 1965, the appellant never called on her to bring her back. It is stated that in March, 1966 he went to Kanpur and contacted her on telephone. He asked her to leave the M. D. Course and return to him, but, on a request to have a face-to-face talk at her father's place, he did not go to meet her. It is further stated that the appellant did not attend the marriage of the respondent's younger sister in 1966 and avoided meeting her or her parents. Efforts for reconciliation made on her behalf failed. The respondent, accordingly, was driven to the filing of this petition for divorce on grounds of cruelty anddesertion -- cruelty consisting of the ill-treatment meted out to her by her mother-in-law and the appellant's apathy to intervene, and the desertion consisting of the appellant's living away from the respondent and severing his connections from her since November, 1965.

5. The appellant denied the charges and controverted the allegations. His case was that the parties were married according to Hindu rites and their marriage was indissoluble, that the appellant had always discharged his marital obligations towards his wife, and was deeply attached to her, that he had never withheld his affection or sympathy from her. His parents also treated her with care and affection, It was alleged that after their marriage, the parties went to Nainital, where they lived as husband and wife in the Government accommodation allotted to the appellant's father. The respondent was provided with all the amenities and facilities for a comfortable living as could be made available according to the status and position of the appellant's father. The respondent had a separate room, and the parties had a free and full marital life. The respondent was fully satisfied and had written to him nicely referring to the consummation of the marriage. She had no complaint to make about either anything or anybody. In her subsequent visits also, she was treated cordially and the appellant's mother had never given her any ill-treatment; nor had she ever interfered in the conjugal life of the parties. The accusations made against her were false and were so mads only for the purposes of the petition. It was alleged that the respondent was always keen to pursue her studies in medicine. The appellant and his parents were opposed to it. The views of the appellant's family did not suit the respondent. She did not give vent to her feelings during the lifetime of the appellant's father but after his death, she found it convenient to pursue her plans for a career in medicine. She joined the M. D. course in the Medical College at Kanpur and also took up a job there. The appellant greatly resented the respondent's move and asked her to coma back and look after her home. She, however, had no regard or respect for his views or sentiments and declined to alter her plans. The appellant visited Kanpur around Holi in March 1966, talked to her on telephone and tried to persuade her to come back to her marital home but with no success. He did not go to his father-in-law as his relations with him were strained and he felt embarrassed in going to him. He had not even cared to invite the appellant in the marriage of his second daughter. According to the appellant, he had always been very affectionate to the respondent and had never uttered even an unkind word to her. He had produced in court a number of letters written by her to him, which he had preserved, in token of his love and affection for her. The appellant alleged that he had been making constant efforts to bring back the respondent since Nov. 1965 but she declined to return to the marital home. It was pleaded that the petition was belated and was also otherwise not maintainable.

6. During the course of the trial before the learned Civil Judge, the appellant made an offer to the respondent that he would separate his mother from him so that her grievances, if any, may be alleviated and she may come back to her marital home but the respondent refused the offer and declined to come back. The trial court also made attempts for a reconciliation but the same failed as the respondent was adamant not to go back to the appellant. The court then decided the petition on merits and dismissed the same holding that no case of either cruelty or desertion was made out against the appellant. It found that the parties were married according to Hindu rites; that they had lived as husband and wife without any interference by the appellant's mother in their conjugal life, which they had enjoyed freely; that the marriage had been consummated in the first visit of the respondent to the marital home, that the mother-in-law had not treated the respondent with cruelty, that the accusations made against her as regards the cleaning of the utensils, the washing of the clothes and being treated as a house-maid were wholly wrong. It appeared to the trial court that the mother-in-law had required the respondent to discharge her household duties in the manner, the old school people do and she had also tried to train her in that direction, thinking she could do so being a mother-in-law, but the respondent resented the same. She was highly educated and modern in views. The differences appeared to the learned Judge were part of life and a mere wear and tear for which no marriage could be broken particularly when no serious allegation had been made against the appellant except that he was too weak to stand up against his mother. Learned Judge observed that if the respondent was aggrieved with the conduct of the mother-in-law, the appellant could not be accused of treating her with cruelty. The trial court further found justification in the conduct of the appellant. Traditions according to him did not permit the attitude the respondent expected of him in the matter. They require a son to be obedient, respectful and uninterfering in such controversies. The trial court found that the appellant was quite affectionate and attached to the respondent and was not guilty of any misconduct towards her. It held that the respondent herself had decided to leave the husband and join the medical college. Ambition or dissatisfaction may have been the reason but what the learned Judge found was that when the husband asked her to come back and look after her matrimonial home, she declined saying that she was drawing Rs. 1700/-per month while the appellant was getting only Rs. 1000/-. The trial court further held that the offer made by the appellant during the proceedings of the suit to separate his mother for the pleasure of his wife was a sincere one and the refusal of the respondent to accept the same and go back to him was a clear proof of the fact that the wife had herself deserted the husband. She had made up her mind to leave him and the charge levelled against the appellant was wholly unfounded. The court, accordingly, held that neither the charge of cruelty nor of desertion was proved against the appellant. The petition was further found to be highly belated, having been filed nearly nine years after the separation of the wife from the husband. The petition, in these circumstances, was dismissed.

7. On appeal, the lower appellate court reversed the decree and has allowed the petition. It did not reverse the findings of the trial court regarding the enjoyment of conjugal life by the parties and the attachment of the appellant with the respondent. It also did not reverse the finding that the respondent was never subjected to any undignified treatment by the mother-in-law such as of cleaning the utensils or washing the clothes. It further found that the appellant had gone to Kanpur and had tried to persuade the respondent to come back to him but only on phone. The charges of cruelty and desertion were found proved against the appellant on the findings that he had not protested against the constant nagging of his mother at the respondent and had not called on the respondent at her father's place when he had visited Kanpur in March, 1966. These findings were as follows;

'The accusation that cruel treatment was meted out to the applicant is mainly against respondent's mother. It is said that the mother-in-law of the petitioner was constantly nagging at her. She criticised the petitioner in everything she did. She was called Manhoos. Her looks and her dress were also criticised ......

This treatment given to the petitioner was cruel because the mother of the respondent was always nagging at the petitioner, criticising her in everything and using abusive language while the respondent himself was indifferent to what was happening and refused to intervene'.

8. It would be seen that what had been found against the appellant was that he did not intervene in the matter as he probably did not want to offend his mother. The court below then observed:--

' ......... Had the petitioner been anilliterate wife of the respondent then perhaps the treatment meted out to her would not have been construed to be cruel and some nagging or criticism of the mother-in-law would have been excusable but at the time of the marriage the petitioner was in her final year of M. B. B. S. and was from a good family. She was entitled to a treatment in keeping with the social status of the parties and the education of the petitioner ...... itmust have been very difficult for her to endure the agonising ordeal of staying with the respondent's mother and because the respondent refused to intervene, therefore, this treatment was cruel.'

The respondent's stay with the mother-in-law, and not the husband, was thus found agonising to her. If the husband could keep her away from the mother-in-law and live with her, there could then possibly be no objection to her living with him. As regards desertion, the court below observed :--

'On 30-11-1965 the petitioner went to her father and after that the respondent never went to bring her ......... the respondent should have brought her. This was, however, never done. Since the respondent deserted the petitioner after 30-11-1965 and the desertion continuedfor almost nine years, therefore, on this ground also a decree of divorce should have been granted.'

9. The question thus arising for determination is whether on the facts and in the circumstances of the case the appellant could be held guilty of the charges of cruelty and desertion against his wife. This would depend upon the nature of the marriage, the marital relations of the spouses, their respective temperaments, the appellant's attitude in regard to the conduct of his mother towards his wife and his liability for the same on a true construction of the provisions of the Hindu Marriage Act and the scope thereof.

10. The marriage was performed according to Shastric rites. The institution of matrimony under the Hindu law is a sacrament, and not a mere socio-legal contract. It is not performed for mere emotional gratification and is not a mere betrothal. Its content is religious. It is regarded as part of the life of the soul. It is holy spiritual union corresponding to the consortium omnium vitae of Rome, a process by which the husband and wife become one. The bride, on the seventh step of the Saptapadi, loses her original Gotra and acquires the Gotra of the bridegroom, and a kinship is created which is not a mere friendship for pleasure or gain. A Hindu marriage thus performed in one of the four forms, namely (i) Brahma, (ii) Prajapatya, (ii) Arsa and (iv) Daiva, is regarded as indissoluble (see Manu: IX, 101, IX, 46; Kane: 'History of Dharma Shastra' volume 2, part 1, page 427 : Mayne : 'Hindu Law' 10th Edition, page 108.)

11-13. The Shastra regards marriage as a rite of conservation (Sanskar) too holy to be undone. As the wife is half her husband's body so as to continue his personality even after his death she is never free and available for a remarriage. But ideologies and notions change when a change sets in the social structure. The Hindu Society is not the same which it was in the time of Manu, Narad and Yajnavalkya. A relaxation accordingly was sought in the rigours of the traditional law of matrimony. Piecemeal legislations followed in certain parts of the country. The Parliament ultimately passed the Hindu Marriage Act in 1955 (Act 25 of 1955), hereinafter referred to as the Act to amend and modify the law relating to marriage among Hindus. Some of the basic features of the Act are:--

(1) The removal of restrictions on marriages between Hindus belonging to different castes;

(2) The prevention of bigamous marriages;

(3) the introduction of divorce and Judicial separation; and

(4) Statutory recognition of the relief of restitution of conjugal rights,

14. The liberal attitudes introduced, however do not alter its basic structure or its true content. It continues to be a religious institution and a sacrament. The spiritual kinship of the spouses continues an abiding faith in them in its life-long continuance. Its sacred character is still preserved and its traditional value has not lost its importance. Religious and social taboos and a spirit of dedication and devotion to motherhood and fatherhood still condition the Hindu mind to consider marriage a lifelong union. The Act insists on maintenance of family cohesion and strongly disfavours a disruption. It enjoins that every endeavour should be made to preserve and maintain marital ties. The Hindu marriage thus continues to be an institution, sacred in character, religious in content, traditional in value and its basic concept has undergone no change. The social attitudes introduced cannot be regarded as having made it a mere socio-legal contract. The Supreme Court in Swarajya Lakshmi v. Dr. G. G. Padma Rao (AIR 1974 SC 165) observed that divorce and dissolution of marriage were foreign to Hindu Law before the statute stepped in to modify the traditional law and in construing the provisions of the Act 'one has to remember that divorce is not generally favoured or encouraged by courts and is permitted only for very serious and grave reasons'.

15. The parties lived as husband and wife for nearly three years before they parted for a civil action. Their relations but for a difference on the question of the mother-in-law's attitude, could not be regarded as uncordial or inharmonious. The letters produced show that the wife had been addressing the husband in affectionate terms and writing nicely on topics of common interest. She, of course, complained of his passive attitude in regard to his mother's attitude towards her, which though she called instructive, she did not like. She appeared to be occidental while the husband was oriental in views. An emotional reaction set in the wife, who felt aggrieved at the timidness or indifference of the husband in the matter of his mother's attitude towards her. She found life not worth living with him, and she walked out.

16. The question is whether the husband's undemonstrable reaction in the mother and wife controversy amounted to treating the wife with cruelty for which he could be punished by a decree of divorce passed against him.

17. Section 13 of the Act provides for a dissolution of marriage by a decree of divorce on the grounds mentioned therein. The material part of it as it stood prior to its amendment by the State legislature or the Parliament was as follows:--

'13. divorce, (1) 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) is living in adultery; or

(ii) has ceased to be a Hindu by conversion to another religion; or

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

(iv) has, for a period of not less than three years immediately preceding the presentation of petition, been suffering from a virulent and incurable form of leprosy; or

(v) has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; or

(viii) has not resumed cohabitation for a space of two years or upwards after the passing of a decree for judicial separation against that party; or

(ix) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree'. This section did not include cruelty as a ground for divorce though the same existed for a judicial separation under Section 10. By an Uttar Pradesh Amendment in 1964 (Amending Act 44 of 1964)

a new clause was inserted after Clause (i) in Section 13 which read as follows;

'(i-1) has persistently or repeatedly 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; The Parliament then passed The Marriage Laws (Amendment) Act, 1976 (Act No. 68 of 1976) to further amend the Hindu Marriage Act 1955. In Section 13 of the Act, for Clause (i), the following clauses were substituted:

'(i) has, after the solemnization of the marriage, voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty, or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or'.

The amendment was given a retrospective effect. Cruelty thus became a ground for divorce, and we have to see whether the husband has treated the wife with cruelty, so as to entitle her to obtain a decree of divorce under Section 13(1)(ia) of the Act.

18. Cruelty is not denned in the Act It 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.' (Halsbury's Law of England, 4th Edn. Vol. 13 Para. 1269). This judicially accepted legal concept of cruelty had for its basis the principles adopted by the ecclesiastical courts in England and it found favour in the House of Lords with five law lords in the leading case of Russell v. Russell (1897 AC 395). This case in short laid down the test of legal cruelty as any conduct which would make marital life physically or otherwise (but not only morally) impossible. There are two tests of cruelty-

(i) Whether the conduct in question is sufficiently grave and weighty to warrant the description of being cruel, and

(ii) whether it caused injury to health for reasonable apprehension of injury to health.

In judging the conduct the entire matrimonial relationship, the surrounding circumstances, physical or mental condition or susceptibilities of the spouses and the probable effect of theill-treatment, have to be taken into account. Lord Penzance in Plowden v. Plowden, (1870) 23 LT 266, said:

'It was not every act of cruelty in the ordinary and popular sense of that word which amounted to saevitia entitling the party aggrieved to a divorce, that there might be many wilful and unjustifiable acts inflicting pain and misery in respect of which that relief could not be obtained.'

Harman L. J. in Le Brocq v. Le Brocq, (1964) 3 All ER 464, said that the 'conduct complained of must be something which an ordinary man or jury would describe as cruel if the story were fully told.' Sir Jocelyn Sumon p in Mulhouse v. Mulhouse, (1964) 2 All ER 50 at pp. 56 & 57, said that it must be proved beyond reasonable doubt that it is the misconduct of the respondent which has caused the injury to health of the complainant and the whole of the conduct of the respondent, must be looked into to see whether it can properly be described as cruel in the ordinary sense of the term. In Paten v. Paten, 1964 Australian LR 240, Selby J. at p. 243 said that in order to prove cruelty which includes mental cruelty as well, it must be shown that the petitioner has suffered an injury to health, bodily or mental or a reasonable apprehension of danger of such injury. This involves a two-fold element for not only must the effect of the conduct be proved but exhypothesi the conduct must be such as is capable of having that effect. In King v. King, (1953 AC 124), it was observed that the conduct must be inexcusable, which means unpardonable, unforgiveable or grossly excessive. Some cases took the view that the conduct must be 'aimed at' the injured spouse and must consist of an intention to injure. See Kaslefsky v. Kaslefsky, (1950) 2 All ER 393. But this view was not approved by the House of Lords in Gollins v. Gollins (1964 AC 644) and Williams v. Williams (1964 AC 698). We shall deal with these two cases later. It must at once be pointed out that a conduct has to be distinguished from a mere state of affairs or a psychological condition. See Katz v. Katz ((1972) 1 WLR 955). In Livingstone Stallard v. Livingstone Stallard ((1974) 3 WLR 302) it was laid down that 'in judging a behaviour the correct approach is to ask whether any right thinking person would come to the conclusion that the husband had so behaved taking into account the whole of circumstances and the charactera and the personalities of the parties that the wife could not reasonably be expected to live with him'. It may however, be pointed out that the English Law as to 'marriage being irretrievably broken' is not to be applied in India and a decree of divorce can only be awarded if the grounds mentioned in Section 13 of the Act are satisfied. In 'Rayden on Divorce' 10th Ed. at p. 148, it is stated;

'there are two sides to be considered in case of cruelty, from the petitioner's side, ought this petitioner to be called on to endure the conduct, from the respondent's side was this conduct excusable'

19. Cruelty is frequently a term of relative meaning. It includes 'every wilful act, omission or negligence whereby unjustifiable physical pain, suffering or death is caused or permitted.' See Words and Phrases (Permanent Edition) Vol. 10 p. 615. Aat page 618 it is stated that

'mere want of sympathy, disagreeable manners, delusions of ill temper, habitual disregard of the wife's feelings, refusal to protect her from the insults of others etc, do not constitute cruelty furnishing ground for divorce.' in Haisbury's Laws of England, 4th Edn, Vol. 13, Para. 1269, it is stated that

'if the court finds that one spouse has, by reprehensible conduct or departure from the normal standards of conjugal kindness caused injury to health or a reasonable apprehension of it on the part of other spouse then it is cruelty if a reasonable person after taking due account of all the circumstances of the cases would consider that the conduct complained of is of so grave and weighty nature that the complainant should not be called upon to endure it. The court's principal motive in intervening in the parties' affairs is not to punish one spouse for his or her past conduct but to protect the other for the future'.

20. The statements extracted and the authorities cited yield the following principles regarding matrimonial cruelty in respect of a marriage which is contractual in nature:

(i) That the offending spouse must perform a conduct either of commission or omission;

(ii) that the conduct must be 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;

(iii) that a conduct has to be distinguished from a mere state of affairs or psychological condition;

(iv) that the conduct must be of the offending spouse, i.e. his or her own conduct;

(v) that the whole of the conduct has to be taken into account;

(vi) that the nature of the conduct is to be judged on a consideration of the enire matrimonial relationship, the surrounding circumstances and the personalities and character of the spouses;

(vii) that the conduct has to be of a grave and weighty nature;

(viii) that the grave and weighty nature of the conduct has to be judged from a reasonable man's point of view;

(ix) that the protection of the injured spouse is the object of the relief.

21. A sacramental marriage, to our mind, stands on a higher and stronger footing than a contractual one in the sense that though made dissoluble by law, it is intrinsically indissoluble by its nature while the contractual marriage is dissoluble basically. Hence they do not stand at par so far as the nature of kinship is concerned. Spiritual unity being the true content of sacramental marriage, disruption at that level may have to be found while assessing a conduct complained of. A contractual marriage may or may not require going that far. That, however, is not a question we are called upon to decide in the instant case. We are only indicating an approach in regard to a sacramental marriage.

22. We shall now examine the provisions of S 13(1)(ia) of the Act and the conduct of the appellant. Section 13(1)(ia) provides that if one spouse 'has treated' the other 'with cruelty' the other spouse may seek a decree of divorce against the offending spouse. The word 'treated' denotes a conscious action and includes an omission which has to be cruel in order to call for a decree of divorce. Thus a conscious act cruel in nature is the requirement of the provision.

23. Sir William Scott (Lord Stowell) in Evans v. Evans (1790) 1 Hag Con 35, at p. 37, said

'......It is the duty of courts keep............(the definition of cruelty)extremely strict'.

Russell v. Russell, 1897 AC 395, expressly required that the conduct must be 'inexcusable', King v. King, 1953 AC 124 approved of the test and ruled that that was the best word to describe cruelty.Lord Reed in Gollins v. Gollins (supra) said 'I do not intend to try to define cruelty ......But ......... the conduct mustat least be inexcusable after taking everything into consideration'. Thus a conscious act, inexcusable in any sense of that term is the requirement of the Statute. We have now to see whether the will, the intention or the motive of the doer has any place in it,

24. All actions whether righteous or unrighteous are preceded by an activity of the mind and the person affected normally takes into account the reason, the desire, the intention or the motive of the doer for an assessment of the conduct. A wife who knows that her husband is treating her harshly only for show may never accuse him of cruelty even though the external effect may point to that result. A conduct thus is generally not judged by its external effect but by the reason, the desire, the motive or the intention of the doer. To what extent is this rule approved or disapproved by the law, relating to matrimonial cruelty may now be examined. Intention of the charged spouse according to the learned counsel for the respondent, has no relevance in the field of matrimonial cruelty and the complained conduct has to be judged only by the impact produced on the injured spouse. Two questions are involved in this issue -- one whether the impact has a reference to the state of the mind of the doer, and the other whether the nature of the act whose impact is judged, can have a reference to the state of mind of the doer. A distinction can be drawn between intention as a necessary ingredient of cruelty and intention as a factor to be considered in that regard. It is one thing to require a petitioner to prove an intention to injure on the part of the offending spouse in a charge of cruelty and another to permit a defendant to set up a righteous or beneficial intention or an intention which negatives cruelty, or lack of such a motive or intention in defence. A distinction may further be drawn between cases involving 'unequivocal' conduct which conduct clearly constitutes cruelty and those involving 'equivocal' conduct which may in certain circumstances amount to cruelty and in other may not. In Corpus Juris Secundum, Vol. 27A, Section 25, p. 69, it is stated:

'ordinarily, intention, wilfulness or malice is a necessary element of the cruel treatment which the law recognizes as a ground for divorce and according to some authorities this is true notwithstanding the act complained of injuriously affected the health of the other spouse.'

Then follows a statement;

'It is not always necessary that course of conduct be deliberately undertaken for the purpose of causing mental pain and suffering in order to constitute such cruelty as is a ground for divorce, and acts of alleged cruelty may be judged by the effect produced and not by the motive prompting the act. ............ However, motive may be the factor that determines whether conduct or acts were of were not cruelty as that term is used in the law of divorce.'

In Jamieson v. Jamieson, 1952 A. C. 525, Lord Normand said, 'I am of opinion that actual intention to hurt may have in a doubtful case a decisive importance'. See also Lang v. Lang, 1955 A. C. 402. Lord Evershed in Williams v. Williams (supra) observed:

'It is no doubt true that in some cases applying the ordinary standards of sense and language, proof of a deliberate intention on the part of the actor to hurt may be highly relevant in deciding whether the conduct amounts to cruelty. But, save in such borderline cases, my view is that the problems whether the conduct challenged was 'aimed at' the person affected or was (or should be treated as) 'intentional' do not properly arise in the jurisdiction we are concerned............'

It follows that the reason, the will, the intention or the motive of the doer cannot completely be ruled out of consideration and in appropriate cases they may have an important bearing. A wilful act implying a conscious action grave and weighty in nature and inexcusable in any sense of that term may be an ordinary working formula for determining the culpability of the conduct. It was suggested that the action must be judged only by the impact produced or alleged to be produced on the complaining spouse. This may open the doors too wide, and petitions may follow not for relief but for mere release. It seems to us that the nature of the act must first objectively be determined and then its impact subjectively assessed. The culpability of the conduct must accordingly be judged from a reasonable man's point of view.

25. The respondent's case, as found proved by the court below, was that the mother-in-law had been generally criticising and nagging at her, and often calling her names also. No complicity or interest of the appellant was found involved in it. The allegation made was that he was completely disinterested in the matter, and that was the exact grievance. What was resented was that he witnessed it as a helpless observer. The wife expected a demonstrable reaction on his part. The complaint was about his disinclination to intervene in the matter and restrain his mother from behaving in the fashion she did towards his wife. The appellant thus was found morally guilty of not acting in the manner expected of him by his wife. The question is whether this amounted to treating the wife with cruelty by the husband. There may be high moral offences in the marriage state which may surely not be innocent in any state of life but still the question has to be seen whether they amount to cruelty against which the law can give relief by a decree of divorce. The respondent's own case was that the husband was too weak to stand up against his mother. It can, therefore, be assumed that if he had been accorded the same treatment by his mother, he would not have reacted in any different manner and would have meekly submitted to it. Unfortunate may be the state of affairs but did that satisfy the requirement of the law? We have already observed that a mere state of affairs is not the same thing as a conduct. So far as the liability of the appellant in refraining to intervene and restraining his mother was concerned we may usefully quote a passage from Corpus Juris Secundum, Vol. 27A, Sec. 25, at page 71. It states:

'......Failure of a husband to restraina third person from committing an assault on his wife in his presence does not constitute cruelty...... unless he isshown to make the act his own either by procurement or prior assent.'

No procurement or prior assent was even whispered in the instant case. The mother's act consequently was not the act of the appellant. A distinction here may be made between an act and omission. Acts are generally associated with causing harm while omissions permit harm to occur. 'Liability is not quite so automatic in the case of an omission' says Dias in his Jurisprudence, Fourth Edition, Page 426, 'since .....................there has to be a duty to act which depends upon the circumstances including among other things, the relationship between the parties.' The appellant, it seems to us, tried to keep himself away from the controversy bearing in mind his family traditions and his duties towards his mother. He avoided giving her an offence particularly when his father was dead, he may further have avoided giving her an impression that the wife occupied a better position. He might have thought that differences between the mother-in-law and the daughter-in-law, a feature common in domestic life, shall in due course of time get patched up particularly when the wife in her letters had written to him that she was picking up things. The father of the appellant had died and his obligations towards his mother had increased. Keeping in mind the social status and the reputation of the family, he may not have thought it proper to create a situation which might bring the family into disrepute or compel him to separate from his mother. He may further have thought that the respondent, with all her education and equipments may bring round his mother and the differences if any may disappear and things may settle down. The appellant, in the circumstances, to our mind, could not be held to have acted in a manner which could be said to be inexcusable in any sense of that term. The matter, in our opinion, did not go beyond a mere state of affairs, in which no vileness of the appellant's mind, no selfish interest or delight in the respondent's pain was involved. The omission complained of was not of such a grave and weighty nature as to constitute cruelty within the meaning of Section 13(1)(ia). It was a part of life which not only the wife but the husband had also to suffer if he was attached to her.

26. It may further be pointed out that the respondent's main grievance was against the mother-in-law whom she could easily avoid if she had persuaded her husband to keep the two away from each other. The respondent wanted a relief against the mother-in-law and not against the husband. Divorce is granted for the protection of an injured spouse from injury apprehended from a misconduct and not for the punishment of a spouse. The appellant in the trial court, the first appellate court and in this court made an offer to the respondent that he would now separate his mother from him for the convenience and comfort of the respondent and would thus alleviate her grievances, if any, on that account and she may come back to him. But the respondent refused the same. Before the hearing of the case started in this court we made efforts for a reconciliation and the appellant came forward with the offer mentioned above. But the respondent declined the same and was not prepared to go back to him,

27. Learned counsel for the respondent submitted that the matter must be judged as between this husband and this wife or this man and this woman and a case of matrimonial cruelty was fully proved against him, and his intentions were wholly immaterial in the matter. Strong reliance was placed on Gollins v. Gollins (supra) and it was urged that the decision in that case fully covered the instant case. Reliance was further placed on Williams v. Williams (supra) on the question that intention to injure is not a necessary ingredient of cruelty. Both the cases, in our opinion are wholly distinguishable, and cannot govern the decision in the instant case. In Gollins v. Gollins, the husband was incorrigibly and inexcusably lazy. He was considerably in debt and was constantly dunned by his creditors. The wife who ran a guest house, which was the sole support of the family, was also constantly pestered by the creditors for the debts of the husband. She wrote to him that she could not bear the strain any longer and that if he did not get work, she would have to take proceedings for divorce. The husband did not mend his ways, and the wife's health was considerably reduced by the inexcusable conduct of the husband, and although he knew the damage he was doing, he closed his eyes to the consequences. Such conduct, it was held, amounted to cruelty and an intention to injure on the part of the spouse charged or proof that the conduct was aimed at the other spouse was held not an essential requisite for cruelty. The case is only an authority for the proposition that if a course of conduct injuring the health of a spouse is pursued by the other spouse with an attitude to persist in the conduct without any adequate justification, and with a mind closed to the consequences, cruelty may be inferred without proof of an intention to injure. Mrs. Gollins could not avoid the situation except by obtaining a decree of divorce, since the incorrigible nature and the inexcusable conduct of the husband were a part of his personality from which there was no escape except by separation. Gollins's case thus was of inherent and incorrigible defects in the husband which had brought the sufferings to his wife, and the husband could furnish no reasonable justification for his blameworthy conduct. In the instant case the sufferings of the respondent are not due to any misconduct of the husband or any inherent defects in his nature, character or personality. She is aggrieved by the misconduct of the mother-in-law over which the husband had no control and parting with the mother-in-law could have afforded her adequate relief without a severance of ties with the husband. The case is further distinguishable on the ground that the nature of marriage in Gollins's case was different from the one in the instant case, Gollins marriage was not a sacramental one. Conditions widely differ in the two countries as regards matrimonial relationships. As to intention all that was said in the Gollins's case was that that was not a necessary element of cruelty. To say that intention on the part of one spouse to injure the other is not a necessary element of cruelty, is not to say that it is not a factor to be considered. In Gollins's case, the conduct was found inexcusable. We have not reached that conclusion in the instant case. The circumstances differ, the character and personalities differ, so also the nature of responsibility, Gollins being directly responsible, the appellant only indirectly.

28. Williams v. Williams was concerned with the question whether insanity was an answer to a charge of cruelty. The husband persecuted his wife by unjustly alleging her of misbehavior with other men. He was suffering from paranoid schizophrenia. He, however, knew what he was doing, and it was held that proof of insanity was no answer to the charge in view of the character and the gravity of the act which were intentionally pursued though with no intention to injure, The case has no application in the instant case.

29. We may further observe that decisions of English Courts have to be understood in the context of the social conditions in that country, and may be useful only for the basic principles enunciated and no further. Generalizations drawn from the facts of judicial precedents in different conditions cam not, in our opinion, be applied to matrimonial relationship in this country, where marriages are made not in the form they are made in the West, and the social conditions are also widely different. See Smt. Umri Bai v. Chittar (AIR 1966 Madh Pra 205) and Subbarama Reddiar v. Sarswathi Ammal ((1966) 2 Mad LJ 263),

30. The conduct of the appellant, after taking into account the entire matrimonial relationship, the surrounding circumstances, the character and personality of the appellant with all his limitations could in our opinion not be characterised as one of cruelty towards his wife and no decree of divorce could be passed against him on that ground,

31. Learned counsel for the appellant submitted that even if any miscon duct on the part of the appellant be assumed that stood condoned by the respondent going back to him and the parties living as husband and wife from July, 1965 to Nov., 1965. Condonation consists of the factum of reinstatement and animus remittendi. That is more or less a question of fact, and the same having not been canvassed in the courts below, it cannot properly be considered at this stage. Further we have already held that the charge of cruelty has not been established against the appellant and the question accordingly becomes only academic.

32. The next charge is of desertion, The trial court held that the respondent herself had deserted the appellant. That finding has not been reversed by the lower appellate court. The trial court further held that proper allegations of desertion were lacking in the petition. The finding is as follows; 'I find that the petitioner has herself not alleged desertion by the respondent in this petition.' This part of the case has also not been considered by the lower appellate court. As to the appellant's conduct both the courts below found that he went to Kanpur around Holi in March, 1966 and tried to persuade the respondent to come back to him. The lower appellate court found him guilty because he did not go to the respondent's father and ask her there to come back to him. The appellant furnished an explanation that his relations with the father-in-law were strained and he felt embarrassed in going to him and hence he had talked to the respondent on telephone and tried to persuade her the best he could to come back to her marital home. Both the courts below have found that the respondent was free to go back to the husband and he would have received her well. The lower appellate court however, observed that 'Indian womanhood has its passiveness and it could never be expected that the petitioner should have gone to the respondent of her own free volition and the only course available for reconciliation was that the respondent should have gone to the petitioner's house and should have brought her. This was, however, never done'. We have already pointed out the appellant's embarrassment in visting his father-in-law. On the findings recorded by the lower appellate court itself it is apparent that there was no intention on the part of the appellant to abandon the respondent. Without proof of animus deserendi no charge of desertion can be established. To prove that charge, (i) Intention of; desertion, (ii) factum of separation (in) want of consent and (iv) want of reasonable cause must be clearly alleged and proved. The plaint allegations fail far, too short of them, The trial court recorded a finding to that effect. The lower appellate court did not consider that aspect. On the findings recorded by the lower appellate court no animus deserendi is established. The mere fact of separate living when the appellant had been making efforts for reconciliation and he had gone to bring back the respondent, was by itself wholly insufficient to establish the charge. The charge of desertion also accordingly fails.

33. Learned counsel for the appellant submitted that the petition had to fail on the ground of delay also as the cause of action had accrued in 1963 and the petition was filed in 1974. The court below has found that since efforts for reconciliation were being made till 1973 the petition as filed in 1974 was not belated. The appellant's own case is that efforts for reconciliation were being made and the court below found that they lasted till 1973. The petition filed in 1974 accordingly could not be held to be belated.

34. The charges having failed the petition for divorce deserves to be dismissed.

35. The appeal, accordingly, succeeds and is hereby allowed. The decree passed by the court below is set aside and that of the trial court is restored. But in the circumstances of the case, the parties shall bear their own costs.

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