Leila Seth, J.
(1) George Eliot wrote
'WHAT greater thing is there for two human souls than to feel that they are joined for life - to strengthen each other in all labour, to rest on each other in all sorrow, to minister to each other in all pain, and to be with each other in silent unspeakable memories............'.
(2) But what happens, if before two human souls have an, opportunity to feel that they are joined for life, the bond is broken. Such is the case be. fore me.
(3) Neclam, the appellant, a first year student of the Master of Arts course was married to Mr. Vinod Kalra on 8th October, 1976. Vinod was working at the time as a T.V. Sound Recorder in Lucknow. The marriage took place as a result of the negotiations of the respective parents. It was solemnized in Delhi according to Hindu rites and ceremonies.
(4) On the nuptial night, Neelam told Vinod that she was neither interested in life nor in her matrimonial obligations. It appears that she was in a state of mental depression and wanted to commit suicide.
(5) On the next day, 9th October, she 1976. left the house. She was found at Greater Kailash bus stop from where Vinod brought her back.
(6) Vinod had planned a honeymoon with her to Kashmir and they were to leave on 10th October, 1976. Neelam refused to leave Delhi and declared that she was not interested in living. However, as a result of the intervention of her parents, she and Vinod went to Kashmir on 17th October. 1976.
(7) They stayed in Kashmir from 17th October, 1976 till 27th October, 1976. While at Kashmir Neelam refused to go out with Vinod. Vinod managed to take her out to see some of the sights of Kashmir after a great deal of persuation. But she was completely disinclined to matrimonial life and to life in general. .
(8) When Neelam and Vinod returned Delhi, Vinod brought this matter to the attention of her parents. They informed Vinod that she had been suffering from mental depression before her marriage and was being treated.
(9) Vinod left for Lucknow to rejoin work. Neelam stayed behind at Delhi, though it is not quite clear whether she stayed with her parents or his.
(10) On 13th December, 1976, Neelam's mother-in-law accompanied her to Lucknow. Alter a week or sober mother-in-law returned leaving Neelam with Vinod at C-1006,Mahanagar, Lucknow.
(11) On 25th December, 1976, Neelam disappeared from the house and' on search was found at a rickshaw stand near Mahanagar. When Vinod asked her to return, she created a scene and threatened to commit suicide at the railway, station. She was brought home after a great deal of persuation as She kept insisting that she wanted to commit suicide. Mr. Lekh Raj, the landlord and his wife were present at the time.
(12) On 2nd January, 1977, Neelam was again missing from the house. When Vinod returned home, he found the house open and he went 'in search of her accompanied by Mr. Lekh Raj. They found her sitting near a well in Hanuman Temple in Mahanagar. When queried she stated that she wanted to jump into the well as she had no interest in matrimonial life.
(13) The next incident occurred on 10th February, 1977. Neelam's mother .had come to visit her at Lucknow. When Vinod returned from the office, he found Neelam's mother upset and in tears. The landlord Mr. Lekh Raj informed Vinod that Neelam had been missing since 1.30 p.m. Vinod and Mr. Lekh Raj went in search of Neelam towards Mahanagar Market. Sahu, a friend of Vinod went with Neelam's mother towards Odeon Cinema to look for her. She could not be traced. Vinod was naturally very upset and apprehensive and he lodged a report at Mahanagar Police Station at about 9.25 p.m. He also sent a telegram to his father and to Neelam's maternal uncle. At the behest of his mother-in-law he also sent a telegram to an 'Ashram' in Dehradun where the mother thought that Neelam might have gone.
(14) On the next day, he was informed telegraphically by his father that Neelam had arrived in Delhi and was living with her father. Till he received this information, he was in a state of great mental anguish.
(15) Thereafter Neelam remained in Delhi for approximately six months with her parents. It appears that she was under homoeopathic treatment. '
(16) On the assurances other parents that she had been cured, Vinod again brought her to Lucknow on 13th September, 1977. He had in the meantime changed his residence and was livinginahouseinG-121,Nirala Nagar; Lucknow. Within a few weeks other arrival, Neelam disappeared once again from the house after quarrelling with the landlord's daughter. Vinod's friend Sahu was present at the time. When Vinod returned from office, he found her missing and was told that she had threatened to commit suicide and stated that she was not interested in matrimonial, life.
(17) The final incident after which the parties came to court occurred on 16th October, 1977. It appears that on 10th October, 1977, Neelam and Vinod came to Delhi to attend the Mundan ceremony of Vinod's nephew. A large gathering was present at the house of Vinod's parents at S-353, Greater Kailash, New Delhi. The 'havan' ceremony had just been performed. Neelam was requested to sing a song. She sang a song which was most inappropriate for the happy occasion as it spoke of a person being taken to the cremation ground. The song created a furor. Vinod's maternal grandmother objected and tried to prevent Neelam from continuing with this song. Neelam) however, insisted on singing this song and proclaimed loudly that she would sing such type of songs as she had no interest in life. There was an unpleasant scene. Vinod took Neelam to the bed room and in the evening he took her to see the family doctor, Dr. Passi. The family doctor found that she was sufferring from depressive phychosis. In his certificate he stated that she was suffering from depressive phychosis with suicidal tendency and needed constant waich apart from medical treatment. For this purpose, it was essential that she be left in Delhi as her family was in Delhi.
(18) Vinod returned to work at Lucknow and Neelam to her parents' home.
(19) On 23rd October, 1977, Neelam's brother Devinder wrote to Vinod that she was not willing to take 'English medicines'. I presume this means 'allopathic medicines'. Dr. Sood, the .homeapath was, thereforee, consulted.
(20) On 26th October, 1977, Devinder once again worte toVinod at Lucknow that as desired by his family, Neelam had been taken to Dr. Passi for treatment. She had taken the medicines prescribed, but as there was a reaction she refused to go to see Dr. Passi thereafter. She insisted that she would only take homeopathic medicines. Vinod was requested to try to come to Delhi and sort out things.
(21) On 31st October, 1977, Vinod wrote a detailed letter to Devinder. In it he said that he had originally wanted Neelam to come to Lucknow before he became aware of her actual condition of mental depression. He could not understand her reluctance in being treated by an allopathic doctor, especially as she had been suffering from a severe shock in her childhood. He felt that homoeopathic treatment had not been at all effective despite the six months of treatment. There had been no change in her attitude which was the same as at the time of marriage. She had no interest in life and continued to contemplate suicide. He definitely felt that it was not advisable for her to stay at Lucknow especially as anything dangerous could happen and he could not take the risk. This was especially so in view of the fact that she had left Lucknow in the past without informing anybody. He wrote, 'you cannot imagine that under how much tension I was for those 28 hours when she was out and I had run in the police stations'.
(22) On 1st November, 1977, Neelam wrote to Vinod expressing her apprehension of being separated on medical grounds. She queried whether he could be transferred to some other place rather than Lucknow as she was afraid of Muslims. She made some vague suggestions about Vinod being fond of children and this might be a solution. However, in her subsequent letter on 4th December 1977 she wrote that 'sex'' was not everything, and at the time of marriage, she had no 'idea' of sex. She had 'found the whole concept of sex very strange when they were in Srinagar. She requested him not to discuss these matters with Devinder.
(23) It appears that sometime in the middle of November, 1977, Neelam was treated by Dr. Datta Ray, a psychiatrist. Thereafter, an advocates notice dated 16th December, 1977, was served on Neelam. The fact of marriage and the circumstances leading to the present situation were stated therein. It was also averred therein that it was not possible for Vinod to maintain her as his wife and he wished to seek divorce in accordance with law.
(24) On 12th January, 1978, a petition was filed under section 13(1)(ia) and 13(1)(ii) ofthe Hindu Marriage Act, 1955 (to be referred to in brief as 'the Act'). On 3rd April, 1978, the written statement was filed and thereafter the replication. Two issues were framed by the trial court :
'1. Whether respondent is suffering from mental disorder of such a kind and to such an extent that petitioner is entitled to divorce on that ground? 2. Whether the conduct and behavior of respondent caused such mental torture to the petitioner, entitling him to divorce?'
(25) With regard to issue No. 1, the trial court found that is was not established. In fact, counsel for Vinod, the respondent herein, also conceded this position.
(26) With regard to issue No. 2, the trial court held that on the facts mental cruelty had been established. The court, thereforee, dissolved the marriage and granted a decree of divorce.
(27) Mr. S.K. Luthra, appearing for the appellant-wife, Neelam, has challenged this finding. He contends, inter alia, that the evidence adduced by Vinod is not reliable and should not be believed. He submits that the evidence of the appellant, Neelam, should be relied on. In the alternatives, he contends that even if the evidence of the respondents' witnesses are accepted - the facts, the pleadings and the documents do not substantiate a case of the appellant treating the respondent with cruelty. His last contention is that even assuming that the incidents that took place prior to 13th September, 1977 amounted to cruelty, the respondent condone the matrimonial offence by cohabiting with appellant between 13th September, 1977 and 16th October, 1977. The two incidents that took place during this period, according to him, are not of a weighty nature and the condoned offence cannot be revived.
(28) In order to appreciate Mr. Luthra's first contention that the evidence led by the appellant should be relied on, it is necessary to see what is her evidence. Only two witnesses have been examined i.e. the appellant herself and her brother. The evidence of her brother, Devinder is, to the effect, that his sister Neelam was not suffering from any disease or mental disorder before marriage. He also deposes that after marriage, she was not undergoing any treatment nor did she take any medicines for any mental illness except calmpose. According to him she took calmpose also, only when she was upset, being torturned by her mother-in-law. He asserted that the relationship between the appellant and the respondent was cordial and no complaint had been made to him by the respondent.
(29) However, in cross-examination, Devinder has admitted that Neelam was being treated by Dr. Dutta Ray of Connaught Circus who is a Psychiatirst and a specialist of mental cases. He has also admitted ..that she was shown to Dr. Passi, the family doctor of the respondent. He admits the correctness of the contents of the letter, he wrote, to Vinod on 26th October, 1977. The contents of thisletterandthatof 23rd October, 1977 have been noticed, earlier. '
(30) In view of the letters and the admission in cross-examination by Devinder, it is clear that his earlier statement in examination-in-chief., that there was nothing a miss nor wrong With Neelam does not carry much force.
(31) NEDAM'S evidence is to the effect that her stay in Srinagar was pleasant ; that she had not asserted that she was not happy in matrimonial life; nor had she stated that she would commit suicide; and no attempt to commit suicide was ever made. The only reason she took calmpose occasionally was because of her mother-in-law's ill treatment. She denies having left the matrimonial home on 9th October, 1976 as also on 25th December, 1976 or on 2nd January, 1977. With respect to 10th February, 1977, she states that it was the respondent who saw her off at the Railway Station. However, she does not explain or give any reason as to why she stayed with her parents at Delhi right from 10th Feb., 1977 to 13th September, 1977. With regard to the two incidents after this lapse of six months, she denies the first i.e. 25th September, 1977 and gives a somewhat different version of the second i.e. 16th October, 1977. According to her she sang a pleasurable song, yet the respondent wanted to turn her out of the house and locked her for the whole day inside a room. Thereafter, he took her to Dr. Passi and then to her parents. She states that she is perfectly normal and neither under treatment nor taking any medicines.
(32) However, in cross-examination the letters written by her which have been noticed earlier, are admitted. She admits that she was not willing to be treated by Dr. Passi as she did not like taking allopathic medicine, but took homoepathic medicine instead. But she denies that sexual relationship was not normal between her and Vinod.
(33) The statement of the appellant and her brother Devinder to the effect that she was normal and healthy, is belied by their letters, the medical evidence and their own admissions in cross-examination. The letters already noticed clearly indicate that she stayed back in Delhi because of her condition of depressive psychosis and was under treatment of Dr. Passi, Dr. Dutta Ray and Dr. Suri, the Hompoepath.
(34) On the other hand the respondent's evidence with regard to the various incidents and general behavior of the appellant has been corroborated by various persons. With regard to the incident of 25th December, 1976 and 2nd January, 1977 by Lekh Raj, the landlord. The third incident of 10th February, 1977 which really created a serious problem for the respondent a Government servant, has been corroborated both by the landlord Mr. Lakh Raj and Mr. Sahu, a colleague of the respondent; as also the first information report and copies of telegrams. The subsequent incident of 28th September, 1977 has been corroborated by Mr. Sahu and the final incident of 16th October, 1977 has been corroborated by M.L. Nayyar, a Government servant and an acquaintance of the parties.
(35) In this view of the matter, I find no reason to interfere with the findings of fact recorded by the trial court. These were : That the appellant was unwell. She had been under the treatment of doctors. She used to leave the house without informing the respondent and would create scenes causing him mental agony and worry. That she would be brought back after search and persuation. That on 10th February, 1977 she left Lucknow without informing the respondent. That the respondent underwent considerable mental harrasment till he get information about her whereabouts, i.e. at her parents' home in Delhi. An ugly incident took place at the time of the respondent's nephew's 'mundan' ceromony. That the appellant had been behaving abnormally and acting in a manner to cause mental anguish to the respondent. Her lack of interest in life as also matrimonial obligations resulted in the respondent being denied a healthy normal sexual life. This also caused him mental agony.
(36) On the basis of these facts, the trial court inferred that the appellant had treated the respondent with cruelty.
(37) Learned counsel for the appellant, submitted, as noticed above, that from these facts cruelty could not be inferred as there was no intention to hurt the respondent
(38) What amounts to cruelty As has been said over and over again, the conduct should be 'grave and weighty' so as to make cohabitation virtually unendurable. It must be more serious than the ordinary wear and tear of marriage. The cumulative conduct taking into consideration the circumstances and the background of the parties, has to be examined to reach a conclusion. However, the conduct need not be aimed at.the other party. In Gollins v. Gollins, 1963(2) A.E.R. 986, it has been held :
'AN intention on the part of one spouse to injure the other is not a necessary element of cruelty as a matrimonial offence where cruelty at a matrimonial offence. Whether established is a question of fact ' and decree. This is to be determined by taking the particular individuals concerned and the particular circumstances of the case rather than by objective statements. It the conduct is so bad that it is unendurable, the state of mind of the offending spouse and whether it was aimed at the other spouse, are not material.''
(39) The facts of the present case have to be looked at from the above- mentioned angle. The incidents and the facts have to be looked at in totality and not in isolation. The time, the sequence and the stage of married life are also relevant.
(40) In the present case, the problem started on the very first night. The appellant declared that she was not interested in life nor in sexual relationship. One can imagine the shock this must have given the respondent who must have been full of anticipation and desire. The next day she left the house and had to be persuaded to return. She refused to go for her honeymoon. She reluctantly agreed after much persuation, to go a week later. She was depressed and disinterested at a time, when a bride would normally be joyous, happy and anxious to share togetherness.
(41) The respondent made three abortive attempts to try and make the marriage a success, but to no effect. The first was during the period 17th October, 1976 to 27th October, 1976 at Srinagar. The second between the period 13th December, 1976 to 10th February, 1977 at Lucknow and the last from 13th Sep., 1977 to 16th October, 1977. Due to the abnormal condition of the appellant during this period of one year, the parties stayed together for less than four months.
(42) It is in this background that one has to see whether the situation and facts amounted to cruelty. It would appear to me, .that the respondent Vinod must have suffered great mental anguish. He must have been looking. forward to marriage and its concomitant pleasures. He must have been rarely disappointed. However, he does not appear to have gone into a tantrum, or given up straightway, but rather faced the situation with patience and perseverance. Despite the appellant disappearing on various occasions and causing mental anguish to the respondent he persisted in trying to make a normal life and home together. It is only when he realised that the appellant was suffering from depressive psychosis and it was serious that he called a halt. In fact, he has so stated in his letter that it was not possible to keep Neelam with him in Lucknow in view of her condition. The mental agony he had suffered as a result of her sudden disappearance on 10th February, 1977 is also understandable. Apart from everything else, if anything had happened to Neelam while she was under his care and protection, especially with her suicidal tendency, being a Government servant he might have been in serious difficulties. This must have also played on his mind causing him mental anguish.
(43) Illness by itself cannot be considered mental cruelty. But the consequences of that illness and the conduct resulting there from can amount to cruelty. The conduct of the appellant, from the start, of disappearing without information, threatening to commit suicide, disinclination to sexual intercourse and general depression resulting in mental agony to the respondent would according to me amount to the appellant treating the respondent with cruelty.
(44) The situation might have been different if the appellant had been inflicted 'With illness of depressive psychosis many years after a normal happy married life together. In that ase, after having experienced the joy of having been 'joined for life', after having shared the pleasures of togetherness and sexual intimacy and having many 'silent unspeakable memories' to sustain the bond, it could perhaps be expected that the respondent would 'minister' to the appellant in her illness and treasure her thereafter even if she were not physically fit and were disinclined to sexual intercourse. But in the present case, there has beenno sharing, there are no memories, as the marriage never took off.
(45) The last argument of the learned counsel for the appellant, is with regard to condensation, as set out earlier. He submits that the acts and incidents which took place before 13th September, 1977, have been condoned by the respondent as the parties cohabitated thereafter; and the incidents of 28th September, 1977 and 16th October, 1977 are not sufficiently weighty to revive the matrimonial offence.
(46) INDR.N.G.DASTANE v. Mrs.S.Dastane, : 3SCR967 , the Supreme Court has held that to constitute condensation, two things are necessary, forgiveness and restoration.
(47) It would appear to me that in this case the necessary intent to forgive and restore is not present. The living together from 13th September, 1977 to 16th October, 1977 is in the nature of an experimental arrangement based on the assurances of the appellant's parents that the appellant was now fit for matrimonial life. Further, there is no evidence that normal matrimonial relationship existed during this time, nor can it be inferred in this case, as that was the very difficulty faced by the parties due to the appellants* depression and disinclination.
(48) In these circumstances, I hold that there was no condensation by the respondent of the matrimonial offence.
(49) For the reasons outlined above, the appeal is dismissed, but ill the circumstances of the case, I make no order as to costs.