A.B. Rohatgi, J.
(1) This is a husband's appeal from the decree of divorce dated September 18, 1978.
(2) The parties were married on May 1, 1969. Both come from well- to-do families. There are two children of the marriage. A son was born on July 9, 1970 and a daughter on October 30, 1971. The husband is 34 years of age and the wife 29.
(3) On July 15, 1977 the wife petitioned for divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act (the Act). The real gravement of the wife's complaint was that the husband is a drunkard and by reason of and in consequence of drinking habits cruel to her.
(4) The wife made three complaints against the husband-(1) drunkenness, (2) beating and (3) suspicious nature. In her evidence she deposed that the husband drank like a fish. The particular concomitant of husband's drunkenness was his habit of beating the wife whenever she remonstrated with him that he should give up drinking. The cause of unhappiness was drunkenness. The wife in her statement said :
'I used to tell my husband that he should not drink. Upon this he used to abuse me in filthy language. When J persisted in asking him not to drink, he started beating me. It so happened for about 30/40 times.'
Drunkenness was persistent. So was beating. The wife said 'the respondent used to beat me every third or fourth day'. The husband was alcoholic. 'He could never do without liquor', the wife said.
(5) In May 1975 the husband was treated for psychotic state (schizophrenia) and associated alcoholism by Dr. B. Gupta, a psychiatrist at Nandi Nursing Home. From May 31 to July 22, 1975 he remained in the nursing home. Dr. B. Gupta was examined on commission. He proved the history of the case and the record he had maintained. He affirmed that the husband was suffering from schizophrenia and associated alcoholism. Schizphrenia the doctor said, is a variety of insanity. The patient loses touch with reality exhibits queer and odd behavior, and is unable to answer questions coherently and is often inclined to be aggressive and violent. The doctor found these complex psychologic factors present in the husband. He found that he was incapable of 'sustained dialogue', that he had lost the sense of reality and was often non-co-operative, aggressive and violent. For a time the husband was better as a result of treatment. But very soon he relapsed into his former state of excessive drinking. This fondness of the bottle proved to be the ruination of marriage.
(6) From April to beginning of August 1977 and again from November 1977 to March, 1978 the husband remained under the treatment of Dr. Denial in Noormanzil Psychiatrist Centre, Lucknow. The record of this treatment was not produced by the husband though he did not deny that he was treated there for some 'mental ailment''. The husband had delusions. He admitted that many times he thought of an imaginary girl Kiran because of his 'mental illness'. That he remained under the treatment of Dr. Gupta was also not disputed.
(7) The medical history and evidence shows that the husband suffered from a psychotic disorder. His thinking was distorted. He was unable to cope with life situation. He showed a reduced tolerance for the stress of interpersonal relations. He retreated from social intercourse into his own fantasy life and commonly into delusions.
(8) Apart from beating which she said was the usual accompaniment of excessive drinking, the wife complained of the suspicious nature of the husband. He accused her of immoral b
(9) Soon after the marriage the wife found to her surprise that the husband was a drunkard. On the very first night of the marriage he came to her dead drunk. The husband did not amend his way inspire of wife's persuasions. In 1974 the wife found that she could not longer tolerate this life. She apprehended danger to her life and the life of her children. In her mind she decided that 'it is better to die rather than to live the the respondent,' as she said in court. The husband's regular and persistent habit of excessive drinking drove the wife beyond the bounds of her endurance. She very soon reached the end of her tether. In her statement she said :
'I am not prepared to live with the respondent. I think no wife can live with her husband in the circumstances in which I have passed through.'
On this evidence the trial judge came to the conclusion that the husband's conduct to the wife has been of such a nature that she cannot reasonably be expected to endure it further. So he held him guilty of cruelty.
(10) The wife appeared as a witness. Her father gave evidence. On behalf of the husband he and his father were the only witnesses. The Trial Judge believed the evidence of the wife. He rejected the husband's testimony. He held that the husband was guilty of cruelty. He dissolved the marriage.
(11) The Trial Judge formed his own estimate of the value of testimony. After analysing the evidence, the judge summed up his conclusion in these words:
'HAVING seen the parties in court and having recorded their statements and having taken the view that I do about their respective credibility and reliability as a witness, it is in my opinion safe to act upon the petitioner's evidence.'
(12) Matrimonial causes from a class in which it is generally most important to see and hear the witnesses, and particularly the spouses themselves; and further within that e lass, cases of alleged cruelty will afford even stronger example of such an advantage. Normally the cruelty is alleged to have occurred within the family establishment, and the physique, temprament, standards of culture, habits of verbal expression and of action, and the interaction between the spouses in their daily life, cannot be adequately judged except by seeing and hearing them in the witness box. The law has no foot- rule by which to measure the personalities of the spouses.'
(13) If ever there was a class of case, in which an overwhelming advantage lies with the judge who has the witnesses before him, it is in the arena of connubial infelicity and discord. The trial judge has the invaluable opportunity of seeing the demeanour of the witnesses, their can dour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial. This assistance the trial judge possesses in reaching his conclusion but it is denied to the appellate court. When this is so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not to be disturbed. This is not an abrogation of the powers of a court of appeal an question of fact. The judgment of the trial judge on the facts may be demonstrated on the evidence to be affected by material inconsistencies and inaccuracies or he may be shown to have failed to appreciate the weight or bearing or circumstances admitted or proved or otherwise to have gone plainly wrong (See Watt or Thomas v. Thomas (1947) A.G. 485.
(14) What is the impression made on the mind of the trial judge by the witnesses in the present case He found the wife worthy of credit. He held that the wife had suffered so much at the husband's hand that she was 'virtually a gone case.' He was impressed by the wife's demeanour in the witness box. It is impossible to reproduce that impression on the cold mechanical record of the evidence. It is something which has to do with the 'feel' of the case. There are the 'privileges' of the judge of first instance. Lord Shaw in a Scottish case pointed out that these privileges involve more than questions of credibility. He said :
'WITNESSES without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation in the nuance of their expressions, in even the turns of the eyelid left an impression upon the man who saw and heard them which can never be reproduced in the printed page.''
(Clarke v. Edinburgh & District Tramways Co. Ltd. (1919) S.C. (H.L. 35).
(15) The husband's evidence the judge rejected as entirely unreliable. He said: 'the entire statement of the respondent depicts his incoherent behavior.' He could not state facts with accuracy. His memory failed him. The evidence of the husband's father was equally untrustworthy. He pleaded complete ignorance of the actual disease from which his son was suffering though it was not denied that the son was admitted in psychiatric centres for treatment.
(16) It seems to me that the husband and wife lived at cross-purposes. There was an element of repugnancy in her marriage with him and his unbounded love for the bottle. She could never reconcile herself to the husband's addiction to drink. She came from a family of the teetotallers. No one in her family drink or smoked, she said in her evidence. She suffered the unhappiness of living with a drunkard husband. His habit of drinking caused distress to her. After a number of unheeded warnings the wife took the final step of dissolving the marriage. She found it impossible to live with a drink sodden husband. She had no peace of mind. For an indefinite period she could not put up with such a life.
(17) Unfortunately there are many drunken husbands and many wives who suffer the unhappiness of living with them. But that is not the question. The question in the present case is : whether this conduct by this man to this woman is cruelty. (See Gollins v. Gollins 1964 A.C. 644; Dastane v. Dastane : 3SCR967 ). This is a matter of human relations and should not be governed by cold judicial principle. The judge before coming to a conclusion must consider the impact of the personality and conduct of one spouse upon the mind of the other. He should weigh all the incidents and quarrels between them from that point of view. This is the proper approach to the issue and the method which ought to be followed. (King v. King (1963) A.C. 124 (130) .
(18) The sole cause of cruelty was habitual drunkennessr This was accompanied with a certain degree of violence. He did use violence to her on decisions. On the whole evidence in this case the learned judge was entirely satisfied that the charge of cruelty had been made out. I cannot say that he was wrong in this conclusion.
(19) On the main question of drunkenness the trial judge found as a fact that the husband was a heavy drinker and so conducted himself that it was not reasonable to expect the wife to continue to cohabit with him. At times he was dangerous to her by reason of intemperate drinking of intoxicating liquor. He habitually drank to excess and when drunk he was dangerous. He was excessively intemperate and violent at times and these acts of violence were caused by intemperance. He was not capable of managing the business affairs. His father, a big businessman, did not think him fit to appoint to a responsible job in his straw board factory. At the time of marriage he was working as a cane development officer at a salary of Rs. 400.00 per month. Rs. 900.00 per month were paid to him for managing the family business, perhaps with a view to supplement his meagre salary.
(20) The judge came to the conclusion that it was a bad case of persistent drunkenness. The husband was warned of the conseqences by the wife, her father, and the psychiatrist Dr. Gupta. Attempts were made to wean him away from habitual drunkenness. But to no purpose. The judge has further found that the husband's conduct was injuring wife's health. She was 'a gone case'. This is how the wife described herself because of mental and emotional stress and strain that she under went through seven years that this marriage lasted.
(21) The wife's evidence was that the husband constantly drank. He was rarely sober. On the first night of the marriage- he came to her dead drunk. The wife's father found bottles of liquor in his room. Many times he consumed cheap country liquor. He associated with persons of low status who procured drinks for him. He suffered from inferiority complex and rarely met persons of his standard in life. He retreated from social life. He was of 'incoherent behavior', as the judge found him in the witness box. He had lost consistency of mind and was incapable of managing himself. The trial judge adopted the words of Davies j. in Baker v. Baker (1955) W.L.R. 1011 (1016) and said : 'The respondent is so sodden with drink as to render his evidence in general most unreliable.' Under the influence of drink he assaulted the wife, children and the servant. The husband was drinking heavily. The judge held that the wife was entitled to the protection of the court against acts of cruely committed by the husband when suffering from the effects of drink. He formed the view that husband's drunkenness constituted such behavior that the wife cannot reasonably be expected to live with the husband. He dissolved the marriage on the ground of creulty.
(22) Now the law on the subject is clear and well settled :
'DRUNKENNESS, per se, is not cruelty, but may be, for example where it is persisted in, particularly after warnings that such conduct is injuring the other spouse's health.'
(Rayden on Divorce 13th ed. p. 1301).
(23) In Baker v. Baker, (supra) Davies J. said :
'PERSISTENT drunkenness after warnings that such a course of conduct inflicting pain on the other spouse, certainly if it is known to injuring the other spouse's health, may well of itself amount of cruelty. In any case, such drunkenness, if it is combined with other acts of ill treatement, may obviously be of the greatest importance.' (p. 1015)
(24) Before conduct can be called cruel, it must reach a certain pitch of severity. This has been variously described as 'inexcusable, unpardonable unforgivable or grossly excessive' and 'willful and unjustifiable acts inflicting pain and misery', but the commonest description now is 'grave and weighty'. It is for the court to weigh the gravity; the test to be inferred from the parts of Lord Reid and Lord Peareo's speeches in Gollins v. Gollins (l964) A.C. 644 is that the conduct must be such that no reasonable person would tolerate it or consider that the complainant should be called upon to endure it. On the history of the marriage I am satisfied on evidence that the conduct by husband to the wife was 'more than she was called upon by law to bear.' The wife cannot with safety to like and limb live with the husband. There was evidence of beating and ill-treatement. There was evidence of injury to wife's health. The judge concluded that court's protection of the injured spouse is necessary. He thereforee granted divorce to the wife. I endorse his conclusion.
(25) condensation The only defense that counsel for the wife argued with some vehemence condensation, apart from the plea of general denial. The evidence of persistent drunkenness is so overwhelming in this case that it is impossible to arrive at any other conclusion than that reached by the trial judge. Counsel built his argument on the wife's statement in cross-examination where she admitted that during the period of two weeks in the middle of 1976 when they were staying at Debgram in the district of Jalpaiguri, the husband had intercourse with her or every second or third day. The intercourse was said to be evidence of condensation. The judge rejected this argument. He found there was no evidence of condensation. The wife's condensation of cruelty cannot lightly be presumed from the continuance of cohabitation after one or several acts of cruelty. This was in fact an attempt by the wife's father to reform the husband and with this end in view he sent the daughter and son-in-law to Debgram.
(26) The wife's father tried to put the husband on right path by keeping him off the bottle. Cohabitation allowed by the wife in the hope of reform is not an act of forgiveness so as to disentitle her from suing for matrimonial relief. She bore her suffering with patience, with a hope in her heart that the husband will some day realise the gravity of his conductand the pain that he was inflicting on her. This is why she waited for seven years and allowed the husband to have intercourse with her. It has been said:
'FORBEARANCE in bringing a petition for divorce by a wife, may not only be excusable but is, in fact, meritorious in hopes of reconciliation. It is legal and meritorious in her to be as patient as possible and forbearance does not weaken her title to relief.'
(See Whitney v. Whitney (1951)1 All E. R. 301 Also Perry v. Perry (1952)1 All E. R. 1976).
(27) The relationship of marriage is not just the sum of a number of incidents. It is a partnership. It is the most personal and intimate of all human relationships. Some make life poetry, as Justice Holmes said of his wife. Some make life a hell. The incidents are to be looked at as a whole and not one by one. Judges have reminded us against the attempt 'to compartment acts for the purpose of relevance.' (Jamieson v. Jamiuson 1952 A. C. 525. All the incidents in a charge of cruelty must bejudged in relation to all the surrounding circumstances. So must the acts alleged to be evidence of condensation. The whole matter must be taken together. One must take the whole story both the cruelty and its condensation in the totality of the evidence.
(28) It is clear, beyond the slightest shadow of doubt, that the husband at no time had the intention of adjuring a life of compulsive drinking. Nor to curb his alcoholic propensities. condensation means resumption of cohabitation and resumption involves a bilateral intention on the part of both spouses to set up the matrimonial home together. Though the wife had complete abhorence for drinking the husband was not prepared to make his contribution in mutual interest in the direction of making amends. So on the total picture of proved facts I come to the conclusion that intercourse with the respondent is not condensation and this 'does not weaken her title to relief.'
(29) One important fact which would completely destroy the theory of condensation is this. The wife left the matrimonial home in September 1974. The husband had intercourse with the wife at Debgram in February 1976. He stayed there for two weeks and then 'slipped' away. The wife filed a petition for judicial separation on the ground of cruelty in Jalpaiguri on March 22,1976. That petition was withdrawn by the wife with permission to bring a fresh petition at Delhi. The present petition for divorce was filed on July l5,1977becauseaftertheamendmentof the act in 1976 the wife could sue for divorce on the ground of cruelty. The web of circumstances shows that cruelty was not condoned by casual acts of intercourse or casual visits without any return to the routine of common life or anything resembling 'the re-establishment of the matrimonial relationship.' It would be contrary to public policy to treat a temporary stay at wife's house, for the purpose of exploring the possibilities of genuine reform, as a resumption of cohabitation. The husband demanded intercourse when in drink. The wife had no choice. I cannot regard it more than a casual connection. Certainly not as a bar to the legal right to relief.
(30) In my view the facts proved in this case negative any intention on the part of the wife to reconstitute the broken marriage or to forgive the faults of the husband. The wife was not a free agent but was acting under the spur of necessity. It seems to me that the whole question turns on what cohabitation means, and what a resumption of cohabitation means. Resumption of cohabitation must mean the intention to rebuild the broken. That involves a bilateral intention on the part of both spouses to do so. I find no evidence of such an intention on the part of the wife in this case.
(31) For these reasons the appeal is dismissed. No costs.