Krishnamoorthy Iyer, J.
1. The husband aged 62, who is a Hindu, petitioned for judicial separation against his wife aged 48, who is a Roman Catholic Christian, on grounds of cruelty and adultery. The wife denied the allegations. The additional District Judge, Ernakulam dismissed the petition finding that the husband has not proved both the grounds. The appeal is filed against the said decision.
2. The parties were married in Delhi on the 22nd day of April, 1948 before the Registrar of Marriages under the provisions of the Christian Marriage Act. There are three daughters bom to them after their marriage and they are Sudha, Geeta and Uma aged 16, 14 and 8 years.
3. At the time of marriage the husband was Deputy Controller of Rubber in the Government of India. Towards the end of April, 1948, the wife left for her native place at Trivandrum. The husband was in Delhi till the beginning of 1949 when he was transferred to Calcutta where the wife joined him. They were residing in Calcutta as husband and wife till the end of 1951, when the husband resigned the Government job and joined Dunlop Rubber Company at Kottayam. The parties were residing in Kottayam till the middle of 1955. The office of Dunlop Rubber Company was thereafter shifted to Cochin and the parties were from 1956 residing in Ernakulam.
4. The husband's case is that from 1959 onwards the wife was conducting herself towards him with great harshness and cruelty and frequently abusing him in the coarsest and most insulting language, that she has on some occasions physically assaulted him, that on several occasions she had locked him out of the house compelling him to take residence in hotels at Ernakulam, that on account of her frequent violent outbursts he had to admit the children in St. Teresa's Convent in Ernakulam, that before the date of the petition she had left him and has been staying in Trivandrum where she is living in adultery, that her behaviour subjected to him to frequent emotional upsets which has caused an abnormal increase in his blood pressure and that it is not possible for him to endure her any more.
5. While denying the allegations of the husband, the wife stated that the husband is addicted to alcoholic drinks, he used to return home late hours in the night and abuse her and children and sometimes even beat her, that he used to stay on some nights in hotels for boozing and that the children have been admitted in the Convent to improve them in their studies. The wife would allege that the husband stayed with her in Trivandrum for three days in September, 1966 when he had sexual relationship with her.
6. In a rejoinder, the husband has denied his staying with the wife for three days in September, 1966 and stated further that normal marital life with the wife had been impossible since 1959.
7. The learned counsel for the husband fairly conceded before us that the evidence regarding the plea of adultery is very meagre and that he is withdrawing the said averment. He therefore confined his attack to the finding of the learned Judge that cruelty has not been proved.
8. Though there was some dispute in the trial court, it was agreed before us that the provisions of the Indian Divorce Act (IV of 1869) apply to the parties and the appeal was argued on that basis. Sections 22 and 23 are the relevant provisions.
9. Section 22 reads:
'No decree shall hereafter be made for a divorce a mensa et toro but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion without reasonable excuse for two years or upwards, and such decree shall have effect of a divorce a mensa et toro under the existing law, and such other legal effect as hereinafter mentioned'.
10. Section 23 reads:
'Application for judicial separation on any one of the grounds aforesaid may be made by either husband or wife by petition to the District Court or the High Court; and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly.'
11. Section 7 of the Indian Divorce Act requires Courts in India to give relief subject to the provisions of the Act on the principles and rules which are as nearly as may be conformable to the principles and rules on which the English Divorce Courts for the time being act and give relief.
12. No decided case either in England or in India has ever attempted to give a comprehensive definition of the term 'cruelty' in Matrimonial cases. The word is not defined in the Indian Divorce Act. The term 'cruelty' is a word which should take its meaning from the context. In Jamieson v. Jamieson, 1952 AC 525 Lord Tucker in the course of his speech pointed out:
'..... Judges have always carefully refrained from attempting a comprehensive definition of cruelty for the purposes of matrimonial suits, and experience has shown the wisdom of this course. It is in my view equally undesirable--if not impossible--by judicial pronouncement to create certain categories or acts or conduct as having or lacking the nature or quality which render them capable or incapable in all circumstances of amounting to cruelty in the cases where no physical violence is averred.'
Agreeing with the above passage Lord Pearce observed in Gollins v. Gollins, 1963-2 All ER 966 at p. 992:
'But cruelty is a question of fact and degree, and no legal formula can resolve its peculiar problems. It would no doubt simplify decisions in accident cases if the law evolved a legal principle that all driving over forty m. p. h. is negligent and that no driving under that speed could be negligence; but such a principle would be an evasion of the court's duty to decide the question of fact. So too with cruelty cases which depend on an even wider variety of matters than negligence cases. The particular circumstances of the home, the temperaments and emotions of both the parties and their status and their way of life, their past relationship and almost every circumstance that attends the act or conduct complained of may all be relevant.'
Lord Reid in King v. King, 1952-2 All ER 584 at p. 598 observed:
'I do not intend to try to define cruelly. I doubt whether any definition would apply equally well to cases where there has been physical violence and to cases of nagging, or to cases where there has been a deliberate intention to hurt and to cases where temperament and unfortunate circumstances have caused much of the trouble.'
Harman, L. J., in Le Brocg v. Le Brocg, 1964-3 All ER 464 which is a decision of the Court of Appeal said:
'Counsel for the respondent husband ended his address with the words: ' 'Cruel' means 'cruel'.' With that I agree. I think, moreover, that 'cruel' is not used in any esoteric or 'divorce court' sense of that word, but that the conduct complained of must be something which an ordinary man or a jury --I suppose this court sits as a jury--would describe as 'cruel' if the story were fully told. There need not be blows. (There is no question here now of blows). There need not be any physical force used (there can be words which would be much worse than blows with a saucepan) but there must be something as to which a jury would be able to say, when they heard it related, 'Well, that was cruel of him', before a husband can be branded with the serious charge of being cruel to his wife.'
13. The whole of the law relating to legal cruelty in matrimonial cases is only Judge-made law and there has been considerable divergence of view revealed in the judgments of the Divisional Court, Court of Appeal and the House of Lords. The range of the reported decisions in cruelty cases is so large that any attempt to reconcile them will only be futile. In the recent case of Gollins v. Gollins, 1963-2 All ER 966 decided by the House of Lords the diversity of judicial opinion has been traced and it shows how uncertain the law is on the concept of legal cruelty in matrimonial cases.
14. Russell v. Russell, 1897 AC 395 with a powerful dissent took the view that to find cruelty it is necessary that the conduct complained of must be such as to cause danger to health -- bodily or mental -- or a reasonable apprehension thereof and the Court of Appeal in Kaslefsky v. Kaslefsky, 1950-2 All ER 398 held that the conduct on the part of the offending spouse must be in some sense aimed at or directed against the complaining spouse. But in 1963-2 All ER 966 the House of Lords though not unanimously disapproved the view in 1950-2 All ER 398 that intention to injure is necessary to establish cruelty. In the former case Lord Reid observed:
'If the conduct complained of and its consequences are so bad that the petitioner must have a remedy, then it does not matter what was the state of the respondent's mind. That I shall develop in Williams v. Williams, (1963) 2 All ER 994. In other cases the state of his mind is material and may be crucial.'
Lord Pearce said in the same case: 'Allowances must always be made for temperament, and mere temperamental disharmony simpliciter is not cruelty. But if a temperament which naturally tends to un-kindness or selfishness or callousness develops to a point at which its acts are cruel, whether intentionally or not, it cannot be right to say that the other spouse must endure it without relief. Nor can one helpfully say that development of character is within its own sphere if its emanations affect and cause injury to the other spouse.' The theory that law of Divorce is partly punitive and we should therefore look to criminal law for guidance is not being accepted as correct in recent times. In the course of his speech Lord Pearce in 1963-2 All ER 994 at p. 1022 said:
'I cannot accept the argument that divorce is partly punitive and should, therefore, look to the criminal law for guidance. The dissolution or permanent interruption of a union, which is in theory life-long and indissoluble, cannot be justified by any logic. But the frailties of humanity produce various situations which demand practical relief and the divorce Acts owe their origin to a merciful appreciation of that demand. Any extension of the area of relief has always been advocated on the ground that there are situations of hardship that must be, alleviated, and has been contested on the ground that to extend relief would create corresponding hardship to the other party and would weaken the important and sacred institution of matrimony. Never does an intention to punish enter into the debate; nor is an extension of the grounds of divorce ever advocated or opposed on the ground that it will extend the area of punishment of errant spouses. It is true that the divorce law of England, following the ecclesiastical law, is founded on the concept of the matrimonial offence. That concept is used to give some justification for breaking an indissoluble union against the will of the offending party. But in the Divorce Acts there is nothing that suggests an intention to punish ..... I do not find anything in the divorce Acts to justify a theory that the law is intended to punish. They appear to intend a practical alleviation of intolerable situations with as little hardship as may be upon the party against whom relief is sought. On this subject A. L. Goodhart the Editor of the Law Quarterly Review has said in his Article on cruelty, desertion and insanity in Matrimonial Law, (1963) 79 Law Quarterly Review 98 at page 106:
'A century ago it may have been in accord with contemporary thought to speak of the respondent's guilt in all instances in which a marriage had so far broken down that the only solution was a divorce, but today the point of view that divorce is founded on crime or even on constructive crime, to use that misleading word, is out of date both from the legal standpoint and from that of the social sciences. This does not mean that there is a failure to recognise that the breakdown of a marriage is a misfortune both for the parties themselves, and especially for the children, but it is a recognition that to deal with such a situation as if it were criminal in nature is unrealistic, and, therefore, unhelpful. It is a hindrance to, rather than a support of, the institution of marriage.'
15. In Halsbury's Laws of England the concept of legal cruelty with reference to matrimonial cases is summed up in Vol. 12, 3rd Edition, page 270, paragraph 516 in the following words:
'The general rule in all questions of cruelty is that the whole matrimonial relations must be considered, and that rule is of special value when the cruelty consists not of violent acts, but of injurious reproaches, complaints, accusations or taunts. Before coming to a conclusion, the Judge must consider the impact of the personality and conduct of one spouse on the mind of the other, and all incidents and quarrels between the spouses must be weighed from that point of view. In determining what constitutes cruelty regard must be had to the circumstances of each particular case, keeping always in view the physical and mental condition of the parties, and their character and social status.'
16. In this state of law, we will adopt the test laid down by Lord Pearce in 1963-2 All ER 966 as it appears to us a safe guide to understand the meaning of 'cruelty' in matrimonial cases. The learned Judge said:
'It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or departure from the normal standards of conjugal kindness causes injury to health or an apprehension of it, it is, I think, cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances would consider that the conduct complained of is such that this spouse should not be called on to endure it.'
17. The above passage does not mean that judicial separation can be demanded for mere trivialities or incompatibility of temperament. The facts of the case should go well beyond 'the ordinary wear and tear of conjugal life', to adopt the words of Lord As-quith in Buchler v. Buchler, 1947-1 All ER 319 at p. 326. We do not think that the husband will be justified in pleading for judicial separation merely on the ground that the wife's conduct is highly irritating and exasperating to him.
18. Now we will examine the facts of the case. The husband as P, W. 1 has deposed:
(1) that the wife in 1960 and 1965 attempted to stab him. On the second occasion he sustained an injury on his finger.
(2) that the wife threatened to kill him by poisoning.
(3) that the wife attacked him with a bath stool on one mid-night in 1964 and P. W. 2 who was then his driver saved him.
(4) that on one night when he was asleep the wife poured kerosene oil on his trousers and the trousers were set fire to and thrown on him.
(5) that on one night he was locked out of the house and he was compelled to go to the Sea View Hotel in Ernakulam with only the banian and underwear he was then wearing.
Apart from the above specific acts, P. W. 1 has deposed in general terms to the reprehensible conduct of his wife which has made his life miserable.
19. As regards attempts at stabbing and the threat of poisoning there is no doubt only the uncorroborated testimony of P. W. 1. But to prove the other incidents the husband has examined P. Ws. 2 to 5. We are of the view that the evidence of P. Ws. 3 to 5 is too general to bring out any of the specific acts attributed to the wife.
20. The learned Judge has not found thatthe husband was addicted to alcoholic drinksor that he stayed with the wife in Trivandrum for three days in September, 1966.The counsel for the wife did not contend before us for the acceptance of those avermentspleaded by his client.
21. The evidence of P. W. 1 and 2 is quite sufficient to grant the husband a decree for judicial separation. The learned Judge has observed.
'If the specific instances of cruelty spoken to by the petitioner's witnesses like locking out the petitioner, the throwing of burning trousers, the attempt to throw the stool and the frequent throwing of the vessels at the petitioner are taken as proved, their cumulative effect would be sufficient to substantiate the ground of cruelty,'
22. P. W. 2 has been disbelieved by the learned Judge for two reasons. The first is that since he deposed that he was staying with P. W. 1 from 1957 he should have seen more incidents and he has not spoken to them. The second is that there is discrepancy between the evidence of P. W. 1 and P. W. 2. The discrepancy pointed out by the learned Judge is that while P. W. 2 said that when the wife was about to throw the bath stool he caught hold of the same and removed it while P. W. 1 said that P. W. 2 rushed in and pulled the wife down. We do not think that this discrepancy is sufficient to disbelieve P. W. 2. C. P. W. 1 the wife has admitted that P. W. 2 was in the employment of P. W. 1 from 1957 to 1964 and during this period he was staying in the same building. We have been taken through the evidence of P. Ws. 1 and 2 and we have no hesitation to believe them. The learned Judge would disbelieve P. W. 1 on the ground that in respect of several incidents spoken to by him he did not take any action against C. P. W. 1. The failure to take any immediate action cannot lead to the inference that the incidents narrated are false. P. W. 1 was holding a responsible post in the Dunlop Rubber Company in Cochin. He cannot be expected to go about tom-toming the strained relationship between him and his wife. The attempt must have been to wait and see whether things would not improve.
23. It is rarely possible to prove the incidents spoken to by P. W. 1 through stran-ger witnesses. After all every person has his own self-respect to be preserved. Section 23 of the Divorce Act enables the court to allow judicial separation if it is satisfied of the truth of the statements and when there is no legal ground for not granting the same. There is no provision of law that the uncorroborated evidence of the spouse should not be accepted in matrimonial cases. According to Section 134 of the Evidence Act, no particular number of witnesses are required for the proof of any fact. But in view of Section 7 of the Indian Divorce Act, the uncorroborated evidence has to be scrutinised with care and received with caution.
24. It is necessary for us to observe that the married life of the wife and the husband was far from pleasant. The husband produced Exts. P1 to P11 letters received by him from Sri Pereira who is in Malaya, who is the uncle of the wife. No doubt, he has not been examined. The learned Judge has refused to go into these letters for reasons which do not appear to be convincing. We hold on the evidence of P. Ws. 1 and 2 that the allegations spoken to by P. W. 1 have been proved. We are satisfied that P. W. 1 cannot be left alone with our sympathy but he has to be granted judicial separation. In the circumstances of this case we think it unnecessary to wait for the last straw.
25. We therefore set aside the decision of the court below and allow the appeal. We make no order as to costs.
26. The husband has undertaken before us through his counsel that he will continue to maintain the children in the same way he is doing now.