S.S. Chadha, J.
(1) Shrimati Santosh (the wife) brought a petition on 6th April, 1976 under Section 10 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for judicial separation against Shri Suraj Parkash (the husband). The allegations are that the husband has deserted the wife for a continuous period of more than two years immediately preceding the presentation of the petition and the husband has treated the wife with such cruelty as to cause a reasonable apprehension in her mind that it would be harmful, injurious and dangerous for her to live with him and hence she is entitled to judicial separation under Section 10(1) of the Act. With the amendment of the Act by Act 68 of 1976, the wife moved an application under Order 6 Rule 17 of the Code of Civil Procedure for converting the petition for judicial separation into one for divorce by virtue of Section 39 of Act 68 of 1976. The amendment application was allowed. The wife in the amended petition seeks a decree of divorce against the husband. Shri S, Jain, Additional District Judge, Delhi to whom the petition was entrusted for trial on the appreciation of oral as well as documentary evidence produced on the record held the factum of cruelty as proved and granted a decree of divorce in favor of the wife against the husband with costs by Judgment and decree dated 6th October, 1977. The present appeal by the husband in directed against the said Judgment and decree.
(2) The husband along with the appeal has also filed an application under Order 41 Rule 27 of the Code of Civil Procedure for. lending additional evidence comprising of the letters exchanged between the parties and swo photographs of the wife. The ground for additional evidence is that these documents could not he traced during the trial of the case in spite of the exercise of due diligence and they became available only after the decition of the case from some oli papers. This is C.M. 2238/77.
(3) The husband has also moved another application under Section 26 of the Act for custody of the two children, i.e, one son born on 15th May, 1973 and the other son born on 7th October. 1974 during the lawful wedlock This is C.M. 2498/78.
(4) In support of the appeal, Mr. H.S Dass Behl, learned counsel for the husband took me through the enteire oral as well as the documentary evidence on the record. Agruments have been addressed only on the issue whether the husband has treated the wife with cruelty as alleged which has been decided by the court below against the husband.
(5) Before dealing with the merits of the appeal, I may notice the objection of the counsel for the husband that the amended petition for divorce is made only under Section 13(ib) of the Act and not under Section 13(ia) of the Act, Section 13 of the Act provides that any marriage Solemnized, whether before or after the commencement of the 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 (ia) has after the Solemnisation of the marriage, treated the petitioner with cruelty; or (ia) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition ; or. Even though in the hearing of the amended petition, there is no mention of the petition asunder Section 13(ia) of the Act, the petition is based on two grounds, firtly cruelty and secondly desertion. This is clear from the reading of the petition itself and particularly para 7 where it is alleged that the husband has treated the wife with such cruelty as cause a reasonable apprehenaion in her mind that it would be harmful, injurious and danger our for her to live with him and hence she is entitled to eivorce. The facts constituting the cause of action on the ground of cruelty have been stated in the petition for divorce and it is not mandatory to mention the specific section under which the petition for divorce is based. The mention of the section is only directory and is to help in the ascertainment of the ground on which the petition for divorce in presented. I, thereforee, do not find any force in this submission of the counsel.
(6) The trial court has rightly noted the elements which may constitute cruetly. It has recaptulated the oral and documentary evidence in para 10 onwards and I am relieved of restating the same. The marriage between the parties was solemnized on 15th April, 1971 according to Hindu Rities at Delhi. The first document in point of time is letter of husband dated 20th June, 1971, Exhibt A2. It mentions the estrangement and querrel between the parties. The first act of cruelty on which direct oral evidence has been led is of December, 1971. Public Witness -3 Shri S.P.Thakral deposes that in 1971, the wife was residing in D.D.A. Flats, Haus Khas and his flat was in front of her house, that in winter of 1971 he heard a noise in the house of the wife ; that the mother of the wife was also residing in that flat along with the parties ; that the mother ofthe wife was coming running out of the house and she was having injuries on her head and that the husband gave her beatings. The testimony of this independent witness is corroborated by the wife herself. RW-1 Shri Basant Lal produced by the husband admits that in December, 1971 there was quarrel between the parties and the mother of the wife received injuries but an Explanationn is offered that she got the injury accidentally on head by a cup of tea. The letter of the husband dated 3rd January. 1972, Exhibit A-1 admits of a recent quarrel between the parties. I, thereforee see no reason to disbelieve the testimony of Public Witness -3 when he gives a v.:rsion that husband had beaten the wife as well as the wife's mother who received the injury in December, 1971. Thereafter there are letters of 1972, 1973, 1974, and 1975, Exhibits R-1 to R-3 and others which are now sought to be produced by the husband showing the normal exchange of correspondence between the parties. First child was born on 15th May, 1973 and the second was born on 1st October, 1974. It could be that incident of December, 1971 was condoned by th3 wife and she made it effective by cohabiting with husband and by bringing in this world two sons in 1973 and 1974. If the things had remained only of minor quarrels between the parties, then I would have treated then as a normal incident of married life.
(7) But the relations between the parties do not stop at the stage of excuseable conflicts. The things became worse in 1975. The husband himself has produced two telegrams of October, 1975 sent by the wife alleging that the husband and his brother Shri D.V. Katyal took away all the ornaments, clothes and utensils on 10th October, 1975, that the husband was requested to stop his relations from visiting the wife's house with threat and coercion as otherwise the police intervention would bs sought and that the husband is called upon to return all articles belonging to the wife forthwith. Then there is a letter dated 1st March, 1976, Exhibit A3. from the husband. The marriage of the brother of the husband was scheduled to be performed on 7th March, 1976. The husband makes an admission of the constant quarrel between the parties and requests the wife to participate in the marriage. The wife does not participate. The evidence of the wife is that on 10th March, 1976 the husband, his brothers S/Shri D.V. Katyal and Pran Nath Katyal came to her house Along with their uncle and at that time her brother Shri Baldev Raj happened to be with her at that time : that the husband and his two brothers started mercilessly beating her; that they confined their mother in the store room and also caught hold of her brother and ultimately with the help of another friend, she was rescued. She deposes that an agreement was arrived at on 11th March, 1976 and was signed by the parties in the presence of the witnesses. The agreement in Exhibit A 4. The merciless beating is reported by the wife to Public Witness- Shri Kewal Malik, D.S.P. Delhi Police who says he advised her to go to the local police for that purpose. The testimony of Public Witness -2 is relevant to show the immediate conduct of the wife in seeking the assistance of D.S.P. Police attached with D.D.A. where she is working. On his advise the wife makes a written complaint on 26th March, 1976, copy Exhibit ?W6/1. The version of the beating on 10th March, 1976 as well as execution of the agreement dated 11th March, 1976 is incorporated therein. This version is orally deposed by Public Witness -3 Shri Baldev Raj. Nothing has been brought out in cross-examination which would dis-credit Public Witness -5 or Public Witness -6 to the version of beating to the wife. Their evidence may be partisan and thereforee has to be scrutinised minutely, but still it can be relied upon. Mr. D.V.Katyal has appeared as Public Witness -5 and has denied the incident of 10th March, 1976. The husband has appeared as Public Witness -8 who has again denied the incident of 10th March, 1976. The agreement Exhibit A4 is witnessed by Shri Chuni Lal, RW-2 and one Shri Arnrit Lal. The husband is the son of the brother of Shri Chuni Lal. The daughter of Shri Amrit Lal is married to the son of Shri Chuni Lal. Shri Amrit Lal was tried to bs summoned as witness by the wife but he (fid not appear and the suggestion is that the husband told Shri Arnrit Lal not to appear as witness. The tenor of the document dated 11th March, 1976 shows that it was a result of the deliberation between the parties. The parties wanted to settle their conflicts and disputes amicably. The terms reflect that the parties had reached a stage of no return in their relationship. The marriage between the parties stood completely broken with no intention of resuming the marital relations'. The document reflects the then existing relationship between the parties and no other inference can be drawn that the wife was forced to seek separation on the ground of cruel treatment by the husband. The document Exhibit A-1 cannot be used as an agreement between the parties to separate but it is certainly relevant to show the impact on the mind of the wife of the cruelty inflicted on her and the relationship then subsisting between the parties.
(8) Mr. Behl, learned councel for the husband contends that the incident of 10th March 1976 was not mentioned originally in the petition under Section 10 of the Act and she brought it in only in the amended petition under Section 13 of the Act which was filed on 13th September, 1976. The allegations have been made in the criminal petition that the wife has been ill treated, beaten and insulted by the husband who created such an atmosphere of physical and mental torture that it was unsafe for the wife and her children to live with the husband. Physical force and inflict of the mental torture on the wife is alleged of the husband as well as of his two brothers who had been visiting the house of the wife of and on. The incident of 10th March, 1976 is not given specifically in the original petition. The incident is however taken in the replication. There could have been some substance in the argument that this incident of 10th March, 1976 is only an after thought if this incident had only been mentioeed in Septembnr, 1976 and not earlier. The wife has produced a copy of the letter Exhibit Public Witness -1 which was delivered to S.HO. Janak Puri on 26th March, 1976 as is apparent from the endorsement on the copy itself signed by A.S.I. Dhar Singh. She also deposed on oath that this was filed in pursuance of the advise tendered' to her by Public Witness -8. The original petition was filed on 6th April, 1976. The incident of 10th March, 1976 had been reduced into a document before 6th April, 1976 when the original petition was filed and cannot be held to be an after-thought and manupulation.
(9) Shri Belh also urges that where there is co-habitation, the act of cruelty as well as desertion are condened. Counsel invites my attention to Section 23 of the Act and relies on 'Rukman Kanta v. Faquir Chand Labhu Ram' (AIR 1960 Punjab 403). 'Smf. Chandra Mohini Srivastava v. Avinash Prasad Srivastaya and another' (AIR 1967 Supreme Court 561) and 'Smt. Gurbachan Kaur Vs . Sardar Swaran Singh', : AIR1978All255 , If the note of cruelty had been confined during the period 1971 to 1974, then they could be regarded by act of cohabitition as a token of forgiveness amounting to condensation. The acts of cruelty of 1971 and later of 1974 are relied upon for the purpose of showing the persistent conduct of the husband in mal-treating the wife even before 1975. After the incident of 10th October, 1975 and 10/11th March, 1976, till the filing of the present petition nothing has been shown that the wife gave forgivenesc or condended the cruelty by effective reinstatement of co-habitation. The Punjub case relied upon proceeds on its own facts when the act of desertion of 1954 was made the cause of action after 1956. It was held that the act of desertion was negatived by the subsequent living together of the parties as husband and wife in 1956 and this period of residence cannot bs regarded as a token of mere forgiveness but constitutes condensation. In the case before me the acts of cruelty are also proved of 1975-76 about which there is no satisfactory evidence of any condensation. The husband produced RW-6 Shri S.P. Notial who deposes that the parties lived together as husband and wife at Rishikesh from 30th September, 1976 to 2nd October, 1976. The testimony of RW-6 is not worthy of any credence as the wife was present in office in Delhi on 30th September, 1976 as per the official records produced by Public Witness -1. She could not have reached Rishikesh at 9 P.M. the same day after leaving the office at about 5 P.M. RW-6 then contradicts RW-7. Shri K.L. Sachdeva, the other witness produced by the husband to show that the wife come to that witness on 3rd October, 1976. RW-6 save that she came back on 3rd October, 1976. R.W.6says that she came back on 2nd Oct. 1976. The evidence of RW-6 and RW-7 cannot also be considered trust worthy as they are interelated in the husband. It is unbelievable that the wife who was prosecuting her petiton vigorously before the Additional District Judge for divorce on the ground of cruelty and decertion, would visit the husband during the pendency of that petition. There are thus no acts of the wife constituting condensation. The law laid down by the Suprems Court 'would not apply unless it is etablished that there has been cohabitation after the proved acts of cruelty. The Allahabad case has no application as the allegations of unchasity was made after provocation and on facts not considered as an act of cruelty.
(10) The act of cruelty is not confined only to the mal-treatment of the wife but is extented further by a civil suit instituted by the husband against the wife relating to flat C-3A/146-3 Janak Puri, New Delhi. The husband admits that the said flat was allotted to the wife from the staff quata and Rs, 40,000.00 has been paid by her; that it is correct that this amount is being deducted from her pay and that the husband has filed a civil suit against the wife, her mother and brother relating to this property. The prayer made in that suit was that the flat should be transferred jointly in favor of the husband along with wife. Institution and prosecuiion of the suit would cause mental agony and pain to the wife whose right in the property acquired by her was being questioned. This is at the instance of the husband. The acts of physical as well as mental cruelty mentioned above clearly establish that the husband treated the wife with cruelty within the meaning of Section 13(ia) of the Act entitling the wife to adissolution of the marriage by a decree of divorce.
(11) For the above reasons I affirm the finding of the Additional District Judge that the wife has established by the oral as well as documentary evidence on record that husband has treated her with cruelty.
(12) The application for additional evidence by production of the correspondence between the parties is only for the purposes of enabling this court to pronounce its judgment and I do not require it. The correspondence between the parties is of the period 1971 to 1974 and not of 1975 or 1976. This evidence, even if produced, will have no bearing and will not materially effect the decision of the points arising in the appeal. I am, thereforee, not inclined to receive any additional evidence in this court. C.M. 2238/77 is dismissed.
(13) The other application is for he custody of two minor children. It is admitted by the husband that the two sons of the parties had been living with the wife from their birth and are being maintained by her. One child was born on 15th May, 1973 and other was born on 1st October, 1974. Mr. Bahl requests, for the time being for the custody of the childborn on 15th May, 1973 as the other child is below 5 years. Under the law the custody of a minor male who has not completed the age of five years shall ordinarily be with the mother. The prime and paramount consideration is the welfare of the minors and the custody of a child of tander years should, thereforee, remain with the mother. The rule of law of five years is a guiding factor, but the pivotal factor is the benefit and well being of the minors. It will be in the interest of minors if both the brothers live together. It will be conducive to the right development of the two minors. It will be in the interest of and in the welfare of the minors that they are allowed to remain in the custody of the mother till there is some change in the circumstances or any subsequent events. It will be open to the parties to approach the court for orders regarding custody of minors after about a period of two years for any modification of the orders. C.M. 2498/78 is dismissed.
(14) In the result Fao 201/77 is dismissed. The decree of divorce on the ground of cruelty is affirmed. I, however, make no order as to costs in this court.