A.B. Rohatgi, J.
(1) This is a husband's appeal from the order of the Additional District Judge dated September 15, 1978, refusing him a decree of divorce.
(2) The appellant Sq. Ldr. J. S. Sodhi was married to the respondent Smt.Amarjit Kaur on January 25, 1970 at Delhi, she being 23 and he 31 years of age. They have two daughters born in 1971 and 1976. On February 21, 1977 the husband petitioned for divorce under Section 13(l)(i)(a) of the Hindu Marriage Act, 1955 (the Act) on the ground that the wife had treated him with cruelty. The judge dismissed the petition. Now there is an appeal to this court.
(3) During this period of seven years the husband was stationed at Bareilly, Belgaum and Delhi. The history of this marriage can be thus sketched in three phases. (1) At Bareilly
(4) From January to March, 1970, the husband and wife stayed at Bareilly. In March 1970 wife's parents visited Bareilly. The husband took them to the club. They had dinner at Kwality. In the night at about 10 or Ii p.m. when they returned home there was an unpleasant incident over cooking gas in the matrimonial home. According to ihe wife's version the husband said : 'Can't your father arrange for gas'? The husband became angry. He ordered the wife and her parents to leave his house at once. As a result the wife and the parents left Bareilly at mid night.
(5) In April there was reconciliation. The husband and wife lived at Bareilly from 3rd or 4th April 1970 to May, 1970. At this time the wife conceived.
(6) In June, 1970 the husband and wife returned from Bareilly. The husband went to Belgaum to join his duty. The wife stayed with her parents at Delhi till March, 1971. On February 3, 1971 a daughter was born to her. (2) At Belgaum
(7) The wife joined the husband at Belgaum )'n March 1971. She brought with her one month old child. They lived together from March 1971 to the first week of July, 1972. In the first week of July 1972 wife's father visited Belgaum and he brought back the wife with him. According to the wife her father and brother arrived in Belgaum. They stayed at a hotel. The father contacted Wing Commander S.K.C. Gupta, Officer-in-charge of the husband. Mr. Gupta asked the father to take away his daughter as there was risk to her life because of the cruel treatment meted out by the husband to the wife. The father requested Mr. Gupta to ask his wife to examine the body of his daughter for injuries received by her at the hands of the husband.Mrs. Gupta found that there were many injuries on the body.
(8) From July, 1972 to May, 1975 the wife lived with the parents at Delhi. On February 5, 1973, the wife wrote to the army authorities for maintenance. In July, 1974, a sum of Rs. 340.00 per month was fixed as maintenance. This was deducted from the husband's salary and regularly remitted to the wife.
(9) On August 7, 1974, the husband brought a petition for restitution of conjugal rights in Belgaum court. On September 25, 1974, he obtained an ex parte decree. As a result of persuasion of the army authorities the wife joined the husband at Belgaum in May, 1975. Wing Commander Ahluwalia in his letters August 16, and September 16, 1974 addressed to the wife (Rl and R2) advised her to patch up differences and to live together. The wife showed no willingness to join the husband. At last the Wing Commander asked her : 'May I know categorically when and on what date you intend joining your husband?' After this letter the wife joined the husband in May, 1975 at Belgaum, as I have said. From May 1975 to October 1976 the parties lived at Belgaum. It was during this period that a second daughter was born to them on February 6, 1976.
(10) In August 1976 the husband was admitted in the hospital and remained there for two months on sick leave. (3) At Delhi
(11) In October 1976 the husband was transferred to Delhi. On October 20, 1976, the parties arrived in Delhi. From October 20,1976 till November 3, 1976 the parties lived together at Delhi. On November 20, 1976 the husband was again admitted in the hospital where he remained till January 7, 1977. At the time the husband was in hospital the wife stayed with her parents in their house at Delhi.
(12) After parties arrival in Delhi there are two events of significance. One is the incident of December 28, 1976 and the other is of January 17, 1977. On December 28, 1976, according to the wife she came to the husband's house at Kirti Nagar at 10 a.m. with her daughters 'without waiting for his (husband's) call to return.'' The husband came to the house at about 2 or 2.30 p.m. He gave her a beating with iron rods and bolted the doors. Leaving her and the children inside the house the husband and his mother went away. As the door was not properly bolted, so the wife escaped leaving the two children behind. She went to a father's friend in the neighborhood and from there informed her father on telephone as to what had happened. The father arrived. Both of them went to Moti Nagar Police Station and lodged a complaint. The police examined the wife next morning and found that she had sustained a simplei njury. The police lodged acomplaint under S. 107/150 Cr. P. G. before the S. D. M. This is the version of the wife. The husband however denies this.
(13) More significant than the first is the episode of January 17, 1977Of this episode the husband's version is this. The wife, her parents, her brother with one more person arrived at his house on January 17, 1977 in the evening at about 7 p.m. 'Under directions of the respondent (wife), I was kicked by her father who was armed with a pistol. I was overpowered by all these persons and was thrown on the ground. My uniform was torn and I started bleeding from the nose. R.S. Vohra, my sister's husband, happened to be there along with me. He was not allowed to take any part, in fact, he was not allowed to move. After about 10 minutes R.S. Vohra got a chance and escaped and police arrived but by that time the respondent and her companions had left. I made my statement to the police officer.' This is the husband's statement. The wife however denies this.
(14) That on January 17, 197 7 this violent episode occurred is established on the record. It is admitted by the wife that her parents were going for condolence to Kirti Nagar and she requested them to take her along with them. She wanted to see the children. She went to the husband's house. She found the children sitting in the kitchen. She went there. Then in her evidence she says : 'Just then I heard shouting of the petitioner and immediately came out of the kitchen. I saw my own brother who had accompanied me tying the turban and perhaps the pstitioner had given him a beating.'
(15) Then there is the evidence of Sub Inspector 0m Dutt of Police Station Moti Nagar. He testified that on January 17, 1977 he received information from. the control room that there was a quarrel ( jhagra) at B-26, Kirti Nagar, New Delhi. He rushed to the spot. The husband told him about the dispute. He found the husband bleeding from the nose and his turban lying on the ground under the dinning table. He also found Vohra there. Vohra in his evidence has also testified to this event.
(16) That there was a quarrel between the husband on the one side and wife's brother on the other, cannot be denied. It is a pity that the wife's brother in his testimony flatly denied the episode. I do not regard his evitence on this point trustworthy. On this episode of January 17, 1977, the trial judge came to the conclusion that there was a 'scuffle' between the husband and wife's brother. But he was not prepared to believe the story of the husband that he was beaten. The evidence shows that there was a scuffle between the husband and wife's brother. Wife's own evidence confirms this. In the quarrel the husband was worsted. He was bleeding from the nose. His brother-in-law R.S. Vohra reported the matter to the police. The police arrived. But the wife and her relations had left beforet he arrival of 0m Dutt,S.I.
(17) On February 21, 1977, the husband brought the petition. The wife opposed. The judge learned evidence and arguments. The trial judge came to the conclusion that the wife did not treat the husband with cruelty. On the other hand he found that the husband was cruel to the wife. He did not believe the evidence of the husband. He accepted the evidence of the wife. His conclusions may be summarised as under : 1. About the Bareilly incident the husband was to be blamed. There was nothing in the wife's conduct which can be said to be cruel. The wife's version that the husband became angry because her father had not provided a gas connection and ordered her, her parents and sister, to leave the house immediately was believed. The husband's version was rejected as improable. 2. That the correspondence between the army authorities and the wife regarding maintenance showed that the husband was at fault. 3. That the petition made by the husband for restitution of conjugal rights immediately after maintenance was .granted showed that the husband's intention was to nullify the order passed by the army authorities. 4. That the husband's mother was responsible for his misbehavior towards his wife. Her non-production as a witness goes a long way against the husband. 5. On 28th December, 1976, the wife went to live with the husband but at the instigation of his mother he compelled her to leave the house, gave her a beating and shut her up in the house. That she escaped, informed her parents, and then lodged a report with the police was substantially true. 6. On January 17, 1977 there was a scuffle because the husband did not want the wife and her brother to enter his house. 7. That the wife's father came to the husband's house armed with a pistol was an 'unblievable story.' 8. That Mahipal Singh was a 'cooked up' witness. 9. That the husband's evidence was 'all concoction.' 10. That the wife did not treat the husband with cruelty. It was the husband who was cruel to the wife.
(18) The real question is boldly to ask oneself, which story is the more probable Is there any glaring improbability about the story accepted by the judge of first instance? In almost every case which involves the consideration of evidence the opinion of the judge of first instance is important, but if he is shown clearly to have gone astray, it is for the appeal court to say so, although the court always ought to bear in mind that the one who has seen and heard the witnesses is the best judge of their varacity.
(19) In the present case Shri B.B. Gupta, Additional District Judge who decided the case recorded the evidence of the wife and her witnesses when the case came to him on transfer on April 15, 1978. The evidence of the husband was recorded by another judge. Shri B.B. Gupta was impressed by wife's evidence. He came to the conclusion that the account given by the wife was substantially true and the conduct of the husband was such as might amount to cruelty. He, thereforee, found against the husband. He declined to grant divorce to the husband because he held that the husband 'cannot be allowed to take benefit of his own wrongs'.
(20) Normally the cruelty is alleged to have occurred within the family establishment and the physique, temperment, standard of culture, habits of verbal expression and of action, cannot l;e adequately judged except by seeing and hearing them in the witness box. The law has no footrule by which to measure the personalities of the spouses. In cases such as the present it will be almost invariably found that a divided household promotes partisanship, and it is difficult to get unbiased evidence.
(21) The question whether the respondent treated the husband with cruelty is a single question only to be answered after all the facts hive been taken into account. The personalities ofthe parties are an iimportent element in the decision whether conduct between the two spouses has been cruel. 'A judge does, and must, try to read the minds of the parties in order to evaluate their conduct.' (Golling v.Golling (1964) A.C. 644 per Lord Reid). In a cruelty case the question is whether this conduct by this man to this woman or vice versa is cruelty. We are dealing with this man and this woman. Is the conduct complained of such that it can properly and rationally be stigmatised by the word 'cruelty' in its ordinary acceptation? The Court is solely concerned with the characters of the protagonists in the dispute and the quality of their conduct. 'Cruelty is a question of fact and degree' (Gollings, supra at p. 696 per Lord Pearce).
(22) I have read the evidence more than once. There are same outstanding events which call for scrutiny. The first is a present of Rs. 2500.00 made to the husband for hying a refrigerator in December, 1971. The wife's father went to Belgaum. He made this gift to the husband. The husband readily accepted it. He brought a frig from the Army Canteen. All this is admitted. This shows that everything was fine and O.K. with husband and wife. They were happy. Bareilly incident had been forgotten and forgiven. The parties were reconciled.
(23) Secondly, two daughters were born to the parties. One on February 3) 1971 and the other on February 6, 1970. This is strong evidence of condensation, assuming for a moment that the wife was cruel at one time. Reconciliation is the test of condensation. Having regard to the long period of cohabitation between the parties, during which they continued to Jive as a family, the right inference to be drawn is that there had been condensation. The best evidence of reconciliation is the continuance or resumption of sexual intercourse. As a result of intervention of the army authorities the wife joined the husband at Belgaum. This was a reinstatement of wife's former marital position. They were united. They shared the same bed. A daughter was born. Resumption of cohabitation is indicative of reconciliation and condensation. (See Dastane v. Dastane, : 3SCR967 ). On resumption of cohabitation the element of cruelty departs. It may return if the offending spouse acted with deliberate intention of hurting. In this case I find no evidence of revival, assuming for argument's sake that the wife was cruel to begin with.
(24) Thirdly, I come to the incident of December 28, 1976. The wife came to the husband's house to resume married life. She brought the children with her. The husband gave her a beating with iron rod. She escaped from the house and reported the matter to the police. Proceedings under Section 107 and 150, Cr. P.O. were launched against the husband. The judge accepted this version of the wife as true. I am not prepared to differ from his assessment.
(25) Lastly is the untoward incident of January 1977. This was a violent episode and indeed regrettable. The wife came to see the children. She accompanied her parents and brother who were going for condolence to a relation in Kirti Nagar where the husband also lived. The wife entered the husband's house. The children were in the kitchen. She went to them. Immediately she heard a noise. She came out and saw that her brother was tying the turban. It is reasonable to infer, as did the judge, that the husband objected to the wife and her relations coming to his house and making an unheralded entry like this. There must have been a sharp exchange of hot words. The wordy duel issued forth in violence. There was a 'scuffle' as the judge found. The husband must have attacked wife's brother and, in defense, he may have given a blow or two to the husband. He started bleeding from the nose. His brother-in-law R.S. Vohra reported the matter to the police. But before the police arrived the wife, her parents and her brother had made a hasty retreat. They felt sorry for having gone to an unwelcome house where not only the wife but her relations also were accorded a humiliating treatment. The episode shows the husband's attitude of mind during a scene and is illustrative of his violent quality.
(26) The violent episode is a continuation of the event of 28th Dec. On 28th December the wife was beaten and shut up. She escaped but the children were left behind. After 20 days the wife could no longer endure separation from the children and thereforee she summoned courage to visit the husband's house on 17th January. But the husband had not changed. There was again violence. This time it was between the husband and wife's brother. The husband was the attacker and wife's brother the defender. In the scuffle the husband received bodily injury and he bled from the nose.
(27) The husband's account of this violent episode of 17th January is highly exaggerated. In essence he said: 'They came and beat me in my own house.' The judge did not believe this account. No one can believe that the wife's father armed with a pistol and accompanied by his wife, son. and a 'bad character' came to attack the husband in his house. The judge called it a 'cock and bull story.' On weighing the evidence it is not possible to conclude that the wife and her relations, actuated by a spirit of evenge, came in a body to strike the husband as an act of retaliation or reprisal.
(28) It appears to me that the husband never tried to rebuild the matrimonial home. He refused to let bygones be begones. He reopened the wounds inflicted on 28th December which could best be allowed to heal. He struck wife's brother. The latter in defense gave blow for blow. I cannot ascribe this episode to the wife. She cannot be held responsible. Circumstances support the theory that the husband was the first to give the blow.
(29) Under Section 13 marriage may be dissolved on the ground that the other party 'has treated the petitioner with cruelty.' The phrase 'treated with cruelty' is a convenient description of a situation where there has been cruel treatment of which the respondent was the author. Evidence in this case does not suggest that the wife was the author of the wrong. If anything, she was the victim of the wrong. The sum total of the evidence does not prove the husband's case that the wife had treated him with cruelty. The evidence is all one way.
(30) The husband complained that the wife did not attend on her when he was being hospitalised at Belgaum and later in Delhi. The wife denied this charge in her evidence. Assuming that the husband is to be believed it will not constitute cruelty. Before'conduct can be called cruel, it must reach a certain pitch of severity. 'Cruelty is a question of degree'. (Gollins p. 693). * This has been variously described as 'inexcusable, unpardonable, unforgivable or grossly excessive.' (King v. King (1952)3 All E.R. 584 but the commonest description now is 'grave and weighty.' (Gollins, supra per Lord Pearce). It is for the court to weigh the gravity: the test to be inferred from the parts of Lord Pearce and Lord Reid's speeches in Gollins v. Gollins quoted above, is that the conduct must be such that no reasonable person would tolerate it or consider that the complainant should be called on to endure it.
(31) Although the respondent's conduct must be grave and weighty, it must be remembered that the question before the court is whether the conduct by this man to this woman, or vice versa is cruelty (Gollins p. 644 and Dastane, supra). This is not to be measured objectively against any artificial standards laid down by a hypothetical reasonable man. Thus acts which amount to cruelty in one case may not be so in another because of a difference in the parties' physical or psychological make up. It is imperative to look at the whole history of the marriage including the parties' conduct after they have stopped living together (Waters v. Waters (1967)3 A. E. R. 417. A picture of the domestic lives of this man and this woman must be surveyed as a whole before a true judgment can be formed of their possible future relations.
(32) Taking into account the whole of the circumstances and the characters and personalities of the parties I have come to the conclusion that the wife's conduct did not amount to cruelty. Whatever opprobrious names one may give to the wife, I do not think that 'cruel' is one of them. I have considered not only the behavior of the wife but the character, personality desposition and behavior of the husband. The husband had his faults. He was inconsiderate and devoid of conjugal kindness. His mother made 'life hell', the wife said. So had wife her attributes, good and bad. I have borne in mind the characters and difficulties of each of them, trying to be fair to both of them, and expecting neither heroic virtue nor selfless abnegation from either, and always remembering that they are made of common clay.
(33) It must also be remembered that reasonable wear and tear of married life will not suffice to constitute cruelty. Nor are pinpricks sufficient. Nor little tiffs. The husband said that on one occasion the wife broke the crockery and beat the children. This cannot form the foundation for matrimonial relief. Except matters which are grave and weighty the rest can be dismissed as wear and tear.
(34) Lastly, counsel for the husband argued that a decree for judicial separation may be passed under Section 13A if it is found that the husband is not entitled to a decree of divorce under Section 13. Section 13A was introduced by Act 68 of 1976. But there is no fundamental distinction between cruelty which gives rise to grounds for judicial separation and that which gives rise to grounds for divorce. There is, however, one important difference. Instead of taking the high road to divorce under Section 13 the court may take the lower road of judicial separation under Section 13A 'having regard to the circumstances of the case.' Judicial separation is just a halting place. It is a stepping stone to divorce under Section 131 A(l). Before the final step ^ of dissolving the marriage is taken by the court the parties will have one year's time to think cooly and decide, if they so wish, in favor of reversal of their decision taken in the white heat of emotion. One year's time is intended to bring peace in a life of disharmony and discord. It is a non-cohabitation provision and nothing more.
(35) If it is once held that the wife has not treated the husband with cruelty it is impossible to grant relief to the husband in the present state of law. The husband cannot be allowed to take advantage of his own wrong. [S. 23(l)(a)], This is the main point in the case.
(36) The divorce law of India is founded on the concept of the matrimonial offence. The offending spouse is charged with cruelty. Before marriage can be dissolved the complaining spouse has to prove that the other party is guilty of cruelty. Cruelty is not a crime, it is true. But the offending spouse has to be found guilty. In some jurisdictions the expression 'guilty of cruelty' is used instead of 'treated with cruelty''. This concept of guilt is the underlying assumption in the divorce law which gives some justification for breaking an indissoluble union against the will of the offending spouse. If relief is granted, each party must alike forfeit the status of matrimony. One party loses it voluntarily the other involuntarily. But the guilty party cannot take advantage of his own wrong.
(37) On the whole case I am in agreement with the judge's findings. I regard his estimate of witnesses sound. I endorse his conclusion without hesitation.
(38) For these reasons the appeal is dismissed but I make no order as to costs.