S.N. Kumar, J.
(1) This is an appeal by the wife against the decree of divorce granted on grounds of cruelty and desertion.
(2) The undisputed facts, briefly, are that the husband, a metriculate draftsman working with the Post & Telegraph Department married the appellant, who is M.A. B.Ed. on 10th December 1969. I have given the educational qualifications of the parties because the husband's case for cruelty has been built around the difference in educational qualifications.
(3) It seems the parties did not get along well after the marriage. There are conflicting allegations about the causes of the estrangement but it is common case of the parties that the appellant-wife went to live with her mother and brother about September 1970. While she was living with her mother, a notice dated 26th September 1970 was sent on her behalf by Shri N.P. Aggarwal, Advocate of Khurja (U.P.) to the husband. The said notice is exhibited on the record as Exhibit P2 and the relevant portions of the said notice read as under :-
'2.That my client informed her mother that you are a man of loose character and associates with persons of bad repute. You are a habitual drunkard and gambler. You do not behave properly with my client and rather ill treated her during her stay at your place.
3.That when asked to go to her in law place my client refused and say that her life will not be safe at the hands of her husband. She is under horror.
4.That my client Smt. Kusum Kheda is not ready to go to your place against her will as she threatens to commit suicide if she is compelled to go there.
5.That all the articles given at the time of dowry are in your possession. On 15.9.1970 my client was forced to leave your house for her mother's place to go to her mother's house and she was turned out without any ornament and articles.' Further on by Exhibit P2 the husband was called upon to return the articles belonging to the wife which were given in the dowry and on other occasions connected with the marriage. A reply dated 12.10.1970 to the notice was sent by the husband to the wife directly with a copy each to his mother-in-law and brother-in-law. A signed copy of the reply was proved by the husband in his statement. I do not find any exhibit mark on this copy although in the statement made by the husband it is recorded that the copy of the reply is exhibited as Ex. P 3. This obviously is a slip and I treat this document
as exhibited. The relevant portions of the reply are as follows :-
'(II)Your allegations against me are quite false, unfounded and wicked and be taken your own crooked nature, immoral behavior and loose character. You are very insolent, disobedient, willful and haughty. Your behavior with me is quite unwifely. I have been tolerating all this in the hope that you will gradually grow wise by experience and your conduct will be mended in due course.
(III)I now feel that all my persuasions and good counsels to you have proved futile and that under misadvise and misdirection of your relations and so called well wishers and your own strong headedness. You are bent upon worsening matters. I never ill- treated you, nor is your life unsafe at my hands. You do intend to lead a free and unfettered life like a society girl.
(IV)On 15th September 1970 you were never forced to leave my house. You rather ran away according to some preplanned arrangement against my will and consent. All your ornaments, clothes and other articles given to you by me and your mother are in possession of yourself, your in other and your brother P.L. Arora. You have been using them at your sweet will without any interference at my part. Come back atonce to me with all ornaments and clothes etc. as is proper and seemly for a good wife.'
(4) About May 1971 some relations and friends of the parties intervened and the wife joined the husband. Again in 1972 the wife left the husband, took up a teaching job in Muradnagar (UP) and continued to live in Muradnagar till 1976. During this period there was some exchange of correspondence and some attempts to maintain contacts but in hostility. The details of the activity during this period are not material for deciding this appeal.
(5) It is not in dispute that about the end of 1976 the appellant-wife took up teaching job in Delhi. There is serious conflict, however, about the question whether the parties stayed together again for a period of six months from September 1976 to April 1977 or not. The case of the wife is that she left the job in Muradnagar because there was reconciliation and she took up a job in Delhi and lived with her husband till April 1977 when she was for the third time turned out of her matrimonial home after giving her beating etc.
(6) The petition for divorce was filed on 21.3.1978 under Section 13 of the H.M. Act as amended without staling the specific ground on which the divorce was sought. In the prayer clause also it was not stated under which specific provision of Section 13 of the H.M. Act the prayer for divorce was made. In paragraph 3 of the petition it is stated that in April 1972 the wife 'left the society of the husband to join service at Muradnagar, District Meerut against the petitioner's will and consent.' The petitioner then further averred that he attempted through various methods on number of times to persuade his wife to join him but with no result. Regarding cruelty the allegations made by the husband are contained in paragraphs 8 and 9 of his petition and the same read :-
'8.That it is clear that the misaction stated above and the unreasonableness on the part of the respondent coupled with the fact that she deserted the petitioner since the year 1972, without any justifiable cause, has causes the state of mind of the petitioner highly disturbed, resulting in mental anguish and affected his peaceful domestic life. Moreover, the respondent's wild and baseless allegations in her notice of 1970 regarding the petitioner's immoral and loose character also amounts to nothing short of cruelty.
9.That the respondent is staying away from the society of the petitioner without his consent or permission and without any justification since 1972 and this long deprivation of marital rights of the petitioner, on the part of the respondent also amounts to cruelty.' Besides denying the allegations of the petitioner and giving reasons for her absence from the matrimonial home on different occasions the appellant- wife, inter-alia, stated:
'BECAUSE of the intervention of elder relatives of both the families and because of the assurances given by the petitioner that he would not maltreat or treat the respondent with cruelty, on 24.9 1976 the respondent again went to live with her husband at Shahdara. For a period of 2-3 months thereafter the petitioner tried to be good to the respondent and asked her to open account in Central Bank of India, Parliament Street, New Delhi. The respondent used to get cheque for Rs. 440.40 as her salary which cheque she would give to the petitioner for depositing in that account. In or about January 1977 the petitioner again started troubling the respondent and would insist that the respondent should give him the amounts which she has earned during the period of four years prior to 1977. On this issue the petitioner and his mother again started beating the respondent buried filthy abuses on her and made the life of the respondent hell in that house.
ON22.4.77 the respondent had gone to attend a function at Ghaziabad in the house of her brother which function, as usual, was not attended by the petitioner. On her return on 24.4.77 she was mercilessly beaten and was the victim of filthy abuses which were hurled on her both by the petitioner and his mother. Because of the severe beating the left hand bone of the respondent got fractured. The life of the respondent was in extreme danger on that day and because of the shrieks of the respondent certain neighbours came and rescued the respondent from being killed by the petitioner and his mother. The respondent had become unconscious because of the beating and when she regained her consciousness she discovered that her four golden bangles, 2 earrings and cash of Rs. 167.00 which was in the purse of the respondent were removed by the petitioner.'
(7) In his replication, the husband denied the above allegations but admitted that 4 or 5 times the appellant went to his office to get her cheques deposited and he deposited the same. The incident of 24.4.1977 was denied by the husband. It is not in dispute that on 21.12.77 Shri Bagga, sister's husband of the appellant, and his son went to the residence of the respondent-husband and there was a fight and a police report made by the husband. The trial court framed the following issues :
1. Whether the respondent has treated the petitioner with cruelty as alleged?
2.Whether the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition?
(8) On both the main issues the trial judge has found against the wife. I think the trial judge has erroneously decided both the issues.
(9) Regarding cruelty the trial judge fond as follows :
'The petitioner who appeared as Public Witness Public Witness . 1 as his own witness stated that the behavior of the respondent was not good towards him. She used to taunt him and used to call him fool. She used to consider him below her standard as she was highly educated than him and on that account, she used to taunt him. He also stated that the respondent threatened him to kill in the company other brother-in-law. Public Witness Public Witness . 2 Sahib Singh H. C. of Shahdara has proved the report lodged by the petitioner Ex. P 4. He also stated that on receipt of a notice Ex. P2, which was false one, he sent the reply Ex. P3 and lodged report with the police on 5/6.7.77. A perusal of the notice Ex. P2 shows that the respondent got sent that notice through her counsel Shri N.P. Aggarwal of Khurja on 26.9.70. In that notice, it was alleged that the petitioner was a man of loose character and was having association of person of bad repute. He was habitual drunkard and gambler. The version of the petitioner has not been shattered in his cross examination nor there is any rebuttal on his point. The respondent who appeared as R.W. 1 has not contradicted this version of the petitioner husband in her statement. She has also not explained as under what circumstances, she got sent that notice Ex. P2 making allegations against the character of the petitioner. Making allegations against the character of a spouse without any attempt to substantiate the same amounts to mental cruelty. There is no denial of the fact that the respondent wife is more educated than the petitioner. She is M.A. B.Ed. and employed as a Hindi teachers in Central Academy School. From these facts also the version of the petitioner husband finds corroboration. Not a single question has been put to the petitioner in his cross-examination regarding this version stated by the petitioner nor there is any rebuttal on his point. There is no reason to disbelieve this version of the petitioner that he was insulted, taunted and defamed. These acts which remained unsheltered and unrebuted are sufficient to cause mental cruelty to the petitioner.'
(10) About Exhibits P2 and P3, I have mentioned above and have reproduced relevant portions thereof. The respondent-husband falsely stated that he lodged a report with the police on 5/6 July 1977 and the same is Ex. P4. Exhibit P4 is a report lodged on 21/22 December 1977 by the husband in respect of his fight with Shri Bagga. The report of July 1977 is by the wife against the threats given by the husband. About the taunts which the trial judge has taken serious note of, the husband stated as under in his statement :-
'THAT the behavior of the respondent was not good towards me. She used to taunt me and used to call me fool etc. She used to consider me below her standard and she was highly educated than me and on that account she used to taunt me.'
(11) It was not stated when the wife taunted and on what occasion. Were these taunts in the year 1969, 1970 1971-72 1970 1971-72 or 1976-77. The petitioner- husband was cross-examined at length about his alleged violent behavior and the dowry articles. It is correct that he was not questioned about the taunts in cross-examination. The wife in her cross-examination denied that she ever told the petitioner that he was not up to her standard. She also denied that she ever taunted and called the respondent a fool.
(12) The trial judge has given a finding of cruelty against the wife on the basis of the material, namely the pleadings, the notice of 1970 and the oral evidence. The merits of a plea of cruelty have to be considered, as observed by their Lordships of the Supreme Court in Dastane. v. Dastane, : 3SCR967 , keeping in mind the peculiar habits, ideas, susceptibilities and expectations of a person belonging to the strata of society to which the parties belong. In Dastane's case their Lordships were dealing with a plea of cruelty under Section 10(1)(b) of the Hindu Marriage Act before it was amended in 1976. Relevant portion of Section 10 reads :-
'10. (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court playing for a decree for judicial separation on the ground that the other party-
(B)has 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.'
THIS was a ground for judicial separation only before 1976. Now cruelty has been introduced as a ground for divorce also but the ground is now worded differently and reads :
'13(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty;'
(13) The word 'cruelty' is no more qualified as was the case before the amendment in the law in 1976. The Law Commission while recommending that cruelty be made a ground for divorce observed :-
'CRUELTY is the very antithesis of love and affection. The duration and frequency of the conduct to be proved (to establish cruelty) need not be explicitly spelt out in this section, because the very words treated with cruelty, in general, imply harsh conduct of a certain intensity and persistence.'
(14) Looking at the conduct of the husband and what he wrote to his wife, his mother-in-law and brother-in-law in year 1970 and the fact that he has been getting involved repeatedly in brawls and fights resulting in police reports, it cannot be said that the husband is a man of above average sensitivity. If the wife did not try to substantiate what she allegedly told her mother about her husband in 1970 as stated in Ex. P-2 the husband also did not make any attempt whatsoever to substantiate what he wrote in Ex. P3. The trial judge has completely ignored that Ex. P2 and P3 exchanged in the year 1970 and subsequent thereto admittedly the parties lived together for about a year. In Dastane's case their Lordships of the Supreme Court held that even though condensation is not pleaded as a defense by the respondent it is court's duty in view of the provisions of Section 23(1)(b) to find whether the cruelty was condoned. Their Lordships further observed that it was an obligation on the court and the same has to be discharged even in undefended cases. Their Lordships further observed that if spouses start leading a normal sexual life after a series of acts of cruelty by one spouse it would amount to the condensation of cruelty by the other. In the present case, although there is no evidence on the record that when the parties lived together during 1971-72 for about a year they were having normal sexual life but it has to be presumed that there was such normal relationship unless there is cogent evidence to the contrary. I think that the learned trial judge committed an error in coming to the conclusion on the basis of totally unsatisfactory and insufficient material on record that the wife was cruel to the husband. No attempt has even been made by the husband to show any intensity or persistence in the conduct of the wife. Even in the pleadings a half hearted reference to cruelty is made.
(15) Regarding the finding of desertion the petitioner has to prove that the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. I did not think it is necessary for me to deal with the happenings before 1976. The trial judge has held that the parties have never lived together after 1972. I think this finding cannot be sustained. As I have noticed above the husband admitted in his replication that 4 or 5 times the wife went to his office to get her salary cheques deposited and he did deposit the same. In his cross-examination, however, he stated that he did not know when the appellant resigned from her job in Muradnagar, but then stated that when he went to Muradnagar and met the principal of the institution where the respondent was teaching, in the month of August 1976, he was told that his wife was on medical leave. He also stated that the principal told him that his wife had informed her (the principal) that she had gone to her husband's house. Then he stated that in January 1977 he came to know that the appellant-wife had joined service in Delhi. He denied that from 24.9.76 his wife had started living with him. He also denied that the wife opened an account in Central Bank of India, Parliament Street, New Delhi with his consent. He even denied any knowiege that she opened any account. Later on he changed his stand and admitted that in January 1977 he came to know that his wife had opened an account in Central Bank because she gave a cheque to the peon of his office to deposit in the bank and that peon was not in service any more because he was a casual employee. He specifically denied, contrary to what he stated in the replication, that he used to deposit the salary cheques of his wife. His case was that the wife was living with her sister, Mrs. Bagga in Ajmeri Gate and was working in the school in Delhi and she did not live with him for any period. The case set up by the wife in her pleadings was that she lived with her husband from 24.9.1976 till 24.4.1977 when she was beaten and she sustained a fracture and left the matrimonial home. In order to prove that she lived with her husband during that period the appellant-wife first relied upon the fact that her husband introduced her for the purpose of opening an account with the Central Bank of India, Parliament Street, New Delhi. The husband persisted in his false position, namely that he did not know anything about the bank account. The wife summoned a witness from the concerned bank. When the witness came to the court the husband made a statement that he might have introduced his wife for opening her account in the Central Bank of India, Parliament Street New Delhi. Upon this statement the witness was given up. The second fact that the wife relied upon was that when she was living with her husband in 1976-77 she received medical treatment on the G.G.H.S. card which was issued in the name of her husband. That dispensary was in Navin Shahdara, Delhi. Dr. Darshan Singh, Rw 4, appeared as a witness on behalf of the Central Government Health Scheme and brought the record that was available. The available record brought by him was from January 1977. He deposed that the record earlier to that was not available because it has been disposed of. He deposed that as per their record there were two entries in the name of the appellant-wife who got treatment from their hospital. The medicines supplied were also recorded. The registrar in which the name of the patient is entered was also produced. The age of the patient and the relationship of the patient with the government servant was also entered in the register. Dr. Darshan Singh was briefly cross-examined and he stated that the dispensary or hospital staff do not verify from the patient about the residence of the patient. Probably, the attempt was to show that the wife was leaping the Cash card in her possession from 1972 onwards and she used to go in 1977 to get medicines on the basis of that card. There is absolutely no Explanationn as to how from the year 1972 onwards the card remained in her possession and no fresh card was get issued by the husband. The appellant-wife in he statement stated about the deposit of the salary cheques. The story set up by the husband that his wife, who had allegedly deserted him in 1972, suddenly and without any reason came to him in his office 4 to 5 times to have her salary cheques deposited, is totally unworthy of belief. After going through the evidence of the doctor the statement made by the respondent-husband after a witness from the bank appeared, the contradictory positions taken by the husband regarding the deposit of cheques and after reading the statement of the appellant-wife I have no doubt that the parties lived together from September 1976 to 1977. The petition was, filed on 21st March 1978. A period of two years immediately preceding the presentation of the petition for divorce on the ground of desertion had not even elapsed after 24th April 1977 assuming desertion started on 24th April 1977. This ground for divorce was not available to the petitioner at all.
(16) In this view of the matter) the appeal is allowed with costs.