V.P. Tyagi, J.
1. Smt. Lalita Devi has filed this appeal against the judgment and decree of the learned District' Judge, Jaipur City, dated January 24, 1974, dismissing the suit of the petitioner appellant filed under the provisions of Hindu Marriage Act for the dissolution of the marriage with respondent Radha Mohan
2. The facts giving rise to this appeal are in nut-shell as follows :
Lalita Devi was married to Radha Mohan at Jaipur on 5th April, 1963. Out of this wedlock she gave birth to four children, out of whom two have already died. The grievance of Lalita Devi against Radha Mohan was that Radha Mohan was addicted to liquor and that he was not doing any work to earn the livelihood to maintain the petitioner Lalita Devi. Her further grievance was that Radha Mohan was a person of loose character indulging in sex with other ladies and that he was in love with one Chandra with whom letters were exchanged by Radha Mohan assuring Chandra to marry her and to keep her as his second wife.
Lalita Devi filed a suit for the dissolution of the marriage in the District Court at Jaipur. But a compromise was effected between the parties on the assurance given by Radha Mohan that he would properly look after his wife Lalita Devi. It is alleged that for sometime Radha Mohan properly looked after her but later on he again indulged in immoral life and acted cruelly while dealing with his wife. In these circumstances the present petition for divorce was filed under Section 12 of the Hindu Marriage Act, (hereinafter referred to as 'the Act') praying that a decree of divorce be passed in her favour and in the alternative if decree for divorce cannot be passed then a decree for judicial separation be passed.
3. Radha Mohan in spite of notice did not put his appearance in the court and therefore ex parte proceedings were taken against him.
4. Petitioner Lalita Devi examined herself as a witness and also produced one Devi Singh P.W. 2, in support of her allegations against her husband. She also filed three letters one addressed by Chandra to Radha Mohan and two written by Radha Mohan to Chandra. Learned Judge after having gone through the oral testimony produced by Lalita Devi and the documentary evidence in the form of letters exchanged between Radha Mohan and Chandra came to the conclusion that from this scanty evidence it was difficult for the court to infer that Radha Mohan was living in adultery. The petition of Lalita Devi was therefore, dismissed. It is in these circumstances that the present appeal has been filed by Lalita Devi.
5. Learned counsel appearing on behalf of the petitioner appellant Lalita Devi candidly conceded before me that he cannot press for a decree of divorce because from the letters relied upon by the petitioner Lalita Devi it is difficult to infer that Radha Mohan was actually living in adultery but he urged that a decree for judicial separation for which 'a prayer has been made by the petitioner, could be passed in her favour as from the circumstances proved and brought on the record it could easily be inferred that Radha Mohan treated the petitioner with such cruelty as to cause reasonable apprehension in the mind of the petitioner that it will be harmful and injurious to the petitioner to live with Radha Mohan.
6. Smt. Lalita Devi has come in the witness-box and has deposed in an unambiguous language that Radha Mohan was not earning anything for pretty long time and that he was not looking after the petitioner and her two children with a result that she had to incur a debt to the tune of Rs. 6,000 to maintain the family. She has also deposed that Radha Mohan used to beat her and when she went to police to lodge a report the police refused to register the case. According to this witness she had filed a petition for divorce previously also but it was compromised. But after a few days he reverted to his old habits of taking drinks and making overtures with other ladies.
While proving the two letters Exs. 2 and 3, she stated that the letters Exs. 2 and 3 are in the handwriting of her husband which were addressed by him to one Chandra. For letter Ex. 1 her statement isthat it was found from the custody of herhusband and it was alleged to have beenwritten by one Chandra to her husband.She, however, admitted that she does notknow who this Chandra was. She also deposed that a suggestion was given by herhusband to adopt immoral means to earnher livelihood and then demanding moneyfrom her.
7. Devi Singh P.W, 2, who used to visit the house of Mst. Lalita Devi, however, could not prove any fact deposed by the petitioner Lalita Devi.
8. There is no reason to disbelieve Mst. Lalita Devi on the ground that she was not properly looked after by Radha Mohan, There is no reason to disbelieve the statement about the letters produced by her which are Ex. 2 and Ex. 3 written by Radha Mohan to Chandra. She is well conversant with the handwriting of her husband and she had deposed on oath that both these letters are written by her husband. These letters by themselves show that Radha Mohan was leading a life from which it can very easily be inferred that he was not loyal to his wedded wife and that in Ex. 3 Radha Mohan gave Chandra to understand that in any case he was prepared to marry her. This assurance was given by Radha Mohan to Chandra that he would persuade Mst. Lalita Devi to give her consent to his marriage with Chandra and even if she did not agree he would marry her against her wishes.
9. Learned counsel appearing on behalf of the appellant urged that this conduct of Radha Mohan flirting with other ladies and giving Chandra an assurance that he would marry her is by itself a conduct which comes within the mischief of the word 'cruelty' as used in Section 10 of the Act, Therefore, Mr. Tibrewal argued that his client was entitled to a decree for judicial separation under Section 10 of the Act.
10. Cruelty has not been defined anywhere in the Act. But now it is a settled rule of law that the expression 'cruelty' not only covers the physical or violent acts of the spouse but also covers the mental or the psychological acts of the other partner which create apprehension in the mind of the complaining partner that it will be harmful or injurious to live with the other party. Events that took place in the life of Lalita Devi and Radha Mohan which resulted in compelling Lalita Devi to file the divorce petition, therefore, shall have to be examined with a view to find out whether they go to constitute mental cruelty as to give misapprehension in the mind of the wife that it will not be safe to live with her husband.
Looking to the provisions of Section 10(1)(b) of the Act it is necessary for the Court to consider the impact of the events of the life of the petitioner on her mind in deciding whether the alleged actions of Radha Mohan could cause reasonable apprehension of harm or injury to the petitioner. While judging it the mental condition and the temperamental qualities of the petitioner shall also have to be taken into account in the light of the circumstances brought on record.
11. In support of his argument Mr. Tibrewal placed reliance on Kusum Lata v. Kampta Prasad, AIR 1965 All 280, Goilins v. Gollins. (1963) 2 All ER 966 and Dr. Narayan Ganesh Dastane v. Mrs. Sucheta Narayan Dastane, AIR 1970 Bom 312.
12. In the Allahabad case the learned Judge while considering the meaning of the expression 'cruelty' of one spouse to another in the eye of law placed reliance on the following observations in Halsbury's Laws of England Vol. 12, 3rd Edition, page 270, paragraph 516 :
'The general rule in all kinds 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.'
13. In the Bombay case the learned Judge held that cruelty in matrimonial law may be of infinite variety. It can be subtle or brutal. It may be physical, or mental. It may be by words, gestures or by mere silence, violence or non-violence. That is the reason-why Courts have never tried to give an exclusive definition of cruelty as understood in matrimonial law. While considering a question whether in the given circumstances the conduct of a spouse could or could not fall within the term 'cruelty' in the light of expression of the law as developed in England; the learned Judge referred to the following observations from Tolstoy's Divorce and Matrimonial Causes. Sixth Edition. 1967 at page 61:
'Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental or as to give rise to a reasonable apprehension of such a danger.'
14. In the same case the learned Judge considered an English Authority Gollins v. Gollins, (1963) 2 All ER 966 where two tests were laid down which must be satisfied for cruelty to be established: first, is the conduct complained of sufficiently grave and weighty to warrant the description of being cruel and, secondly, has the conduct caused injury to health or reasonable apprehension of such injury.
15. In Gollins v. Gollins, (1963) 2 All ER 966 their Lordships discussed at length whether the injury that is to toe caused on account of the conduct of a spouse must be aimed at and that the intention for mens rea is necessary to be established before such a conduct can toe acted upon by the Court to grant a decree of divorce. But I need not go into the reasoning given by the learned Judges in their separate judgments in that case. It would suffice to quote Lord Reid's observations which may throw light on this subject, which are as follows:
'Such an intention may readily be inferred from the fact that it is the natural consequence of his conduct, especially when the one spouse knows, or it has already been brought to his notice, what the consequences will toe, and nevertheless he does it careless and indifferent whether it distresses the other spouse or not.'
16. In the light of these rulings it can safely be said that the conduct of Radha Mohan of indulging in love affairs with Chandra and going to the length of promising to marry her and keeping her as his own wife in the same house where the petitioner lived is sufficient to give rise to an apprehension that a lady of the status of Lalita Devi would certainly be mentally hurt and it would be difficult for a married wife to tolerate against her wishes a second wife to her husband living in the same house. This conduct would naturally cause mental disturbances resulting in harm or injury to the petitioner. There is no reason to disbelieve the statement of Mst. Lalita Devi that the letters Ex. 2 and Ex. 3 were addressed by her husband to Chandra. as these two letters right from A to Z are in the hands of Radha Mohan. In the circumstances the conduct of Radha Mohan will certainly have an impact on the mental peace of Mst. Lalita Devi, which conduct squarely falls within the expression 'cruelty' as used in Section 10(1)(to) of the Act. In these circumstances I am of the opinion that Mst. Lalita Devi is entitled to get a decree of judicial separation under Section 10 of the Act.
17. The appeal is therefore, accordingly allowed. The judgment passed by the lower court is set aside. A decree for judicial separation is awarded in favour of Lalita Devi. Though Radha Mohan has not cared to appear before the trial Court as well as before this Court, I think it proper that he must be saddled with the costs of litigation in both the courts.