M.L. Jain, J.
1. This is wife's appeal against the judgment and decree passed by the learned District Judge, Jodhpur, and dated January 4, 1977, by which he granted a decree of divorce to her husband.
2. Respondent Kailsh Singh Parihar a pilot officer (now a Squadron Leader) son of a Judge of this court (now Retd.) and appellant Priti a daughter of an army medical officer with the rank of Colonel (now retd-) and educated in a convent were married on May 9, 1968, in Jodhpur. Both come of the two prominent families of the Mali community. Their marriage was not even four years old before it came crashing down and the husband preferred an application on January 11, 1972, for judicial separation on the grounds of desertion and mental cruelty under Section 10 of the Hindu Marriage Act, 1955, which shall hereinafter be called the Act. The Act was amended on May 24, 1972. It was later on converted into a petition for divorce on July 7, 1976, The allegations commence right from the time the bride crossed the threshold to receive her groom at the time of the 'Toran' ceremony. It is complained that she had no veil on her face- Since the respondent made her then cover her face, the appellant made it a point of her prestige. After the marriage, the respondent came to know that on the day of the marriage, some young man had caught her by her hands in a mournful tone that alas, she was being married, and thereupon, tears began to leave her eyes. The husband was then posted outside Jodhpur at Jorhat. After a honey-moon of three months, while he was departing to join his duties on June 3, 1968, relatives of the wife insisted that he should take her with him, but he then failed to catch the significance thereof and left her behind with his parents at their house, which he describes as his declared matrimonial home, as it was also his officially notified residence. She however went to her father's home and it is alleged that it was there that she lived for most of the time. The husband returned in November, 1968, on leave. At that time, the wife received a letter from an army officer Capt.David Bargouhna in which he addressed her as 'Priya Bhabhiji' On enquiries being made by the husband, the wife was unable to give a satisfactory explanation. The husband then commanded her that there being no discipline in the house of her rather she must stay with his parents, though she could be permitted to visit them for a day or two. It appears that the husband then left Jodhpur.
3. On February 4, 1969, the marriage of his elder brother took place in Bombay. In that connection he came to Jodhpur and was told that she lived with her father for the entire period of December, 1968, and January, 1969. They, however, went to Bombay and returned on February 6, 1969. Then, before his departure, he happened to come by the daily personal memoirs of the wife which disclosed her mode of living, thinking, intentions, conduct and character and particularly, her fondness for one Ramesh. These memoirs further revealed that the wife did not like to live in the strict discipline of the husband's family and was intent upon suicide. She preferred to live as a 'hippy' and suffered mental agony upon her helplessness to break the social bonds. The wile had undesirable and unbecoming connection with Ramesh. She was longing to join dance parties with him. She was found frequenting restaurants, sexy English films in the company of young men and dressed like a 'hippy.' She has been living with her parents since February, 1968, against his wishes. In July, 1969, the husband came again on leave for 10 days but she came to see him only for once and defying his instructions, she continued to live with her parents. In spite of this, he carried on normal correspondence so that their relations were not poisoned. This he had to because he was in active service and his letters were subjected to censor and he could not write anything to his wife about his real feelings. On October 80, 1969, a daughter was born to her. As desired by the husband, she was admitted in the military hospital. The expenses of the delivery were deducted from his pay. From the hospital she went to her parental home again against his clear directions.
4. From November 7, 1969 to February 3. 1970, he was temporarily posted in Jodhpur. A message was sent to her through her brother to come post-haste to the husband's house but she just did not care. She did not even telephone him. When he was to proceed to his place of posting, her brother Nirmal Singh came to meet him but he misbehaved and even hollered that if his father had come to know of his narrow minded-ness, he would not have married his daughter to him. They had enough bread for their sister and she would not have to return to 'susral'.
5. On May 17, 1970, the marriage of the husband's sister took place. Wile and her family members were invited, but none came to attend the marriage. She did not even send a congratulatory message, nor did they send any 'Neg' (presents) according to social customs. The wife was a student of Three Years Degree Course in the Kamla Nehru Hall, a local college for girls. After passing 1st year in 1970, she joined Biology and also appeared in Pre-medical Test which she could not clear. She applied for admission again in 1971 but she again failed in the Pre-medical Test. All this was done without the consent and knowledge of the husband. The husband alleges that these facts clearly exhibited an intention that the wife was not prepared to live and have any marital relationship with him. On September 30, 1970, the husband was posted in the Air Force Station, Jodhpur, but the wile did not care to meet him or even to ring him up, though, while going to the College she daily used to pass by his house. He also did not like to visit or to talk to her father as he had allowed her to keep contacts with Ramesh and other young friends. At the time of 'Toran' his grand-aunt was pushed about. She even fell down but neither her father nor any members of her family begged her pardon. Her father had invited him soon after the marriage and made him booze. When he came home and got up late next morning his dad smelt liquor and was annoyed. When their daughter was born, her father did not congratulate his father. On January 31, 1970, Nirmal Singh had already misbehaved with him. When his parents went to see their daughter in the military hospital on October 31, 1969, she did not greet them then or thereafter on the occassion of any festival, nor did she call them on phone.
6. The plea of the husband in brief was that since November 6, 1969, at any rate since November 30, 1969, the wife had physically withdrawn from the society of the husband and exhibited no intention to return to matrimonial home and discharge the marital obligations, and was thus in desertion for more than two years.
7. On May 9, 1971, he wrote a registered letter, which was replied on June 10, 1971, in which she levelled serious allegations against him. Thereupon, a photostat copy of the extracts of her memoirs were sent to her. In reply, she stated that whatever was said about her relationship with Ramesh was trivial. The husband informed her on July 7 1971, that he was prepared to meet her in the Circuit House on August 2, 1971. The meeting did take place but did not last for more than 3 to 4 minutes without any talk contrary to her behaviour towards Ramesh which gave her great excitement.
8. When Capt. David Bargouhna was on leave, she was seen moving with him on August 15, 1971. On New Year's eve, she was seen dancing in the army mess and had been seen in the English films, restaurants etc. in the company of unidentified young men, dressed like a 'hippy'. Her diary clearly gave an indication that she had some connection with Ramesh and her conduct caused mental cruelty to the husband of such nature that to live with her was harmful and dangerous to his health and life. Her diary of January 6, 1969, further showed that she could take poison which was easily available to her as her father was a doctor. The husband also apprehended that if she had done so, he could be implicated into a false case of murder. It was also likely that considering him to be an impediment in her connection with Ramesh, she could even poison him. She had levelled accusations against him and his parents, which had further hurt him. The duties of the husband were of a dangerous nature, in discharge of which it was necessary for him to possess mental peace and balance. With mental agony horn of the misconduct of his wife, he was likely to lose his balance of mind and a moment's imbalance can involve him in a perilous air-accident He asked for a dissolution of the marriage.
9. The respondent denied all the allegations and a detailed reply explained all the allegations levelled by the husband. I need not reproduce the reply because that is what I shall be discussing as and when relevant.
10. The learned District Judge, after a careful analysis of each piece of evidence led on either side found that the plea of desertion was a false plea. He also disbelieved most of the allegations regarding cruelty. He, however, held that her relationship with Ramesh and her desire to commit suicide written in the diary were two facts which establish that the husband was treated with mental cruelty, but the letters which he subsequently wrote to her from Jorhat fromMarch 10, 1969 to October 23, 1969, showed that he had condoned the cruelty. The learned Judge then discussed certain allegations which were made by the wife after the petition was filed. The wife wrote a letter to the Air Force authorities on February 8, and July 1, 1972 in which she complained against her husband. She also threw aspersions upon the family of the father of the husband with an innuendo that they were greedy; that the husband suffered from inferiority complex and the parents of the husband were old fashioned. Certain insulting questions were also put to the husband at the time of cross-examination with respect to the character of his sister. The learned Judge held that all this later conduct revived the cruelty which had been condoned. The learned Judge then felt that there was no possibility of reconciliation and the gulf between the two had widened during the last 7 years. He wished that both the parties had buried their hatchet but it was unlikely to happen. It was in the interest of either of them that they live apart in peace. He accordingly, dissolved their marriage.
11. In this appeal, the wife challenged the findings arrived at by the learned lower court against her, while the respondent does not only support the decree but also states that the findings against him in the court below ought to have been given in his favour and if those findings were reversed, the decree shall stand maintained.
12. The learned lower court has rejected the contention that the wife was guilty ol desertion but the husband challenges these findings as against the record. It has, therefore, become necessary to examine as to whether the wife is in a desertion for two years more so, because this is also now a ground for divorce. In Bipin Chandra Shah v. Prabhawati, AIR 1957 SC 176 the Supreme Court observed that the two essential couditions must be there before the spouse can be held guilty of desertion. They are; (1) the factum of separation, and (2) intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned, (1) absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. If there has been separation, the essential question always is whether that act could be attributable to an animus deserendi. During, all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resumemarried life on such conditions as may be reasonable. If one spouse by his words and conduct, compelled the other spouse to leave the matrimonial home, the former would be guilty of desertion though it is the latter who has physically separated from the other and has been made to leave the matrimonial home. As held in Lachman v. Meena AIR 1964 SC 40, in cases of desertion--the factum as well as the animus deserendi--the burden of proof is on the petitioner and he or she has to establish beyond reasonable doubt to the satisfaction of the court the desertion throughout the entire period of 2 years immediately preceding the petition as well as that such desertion was without just cause. Even if the wife, where she is a deserting spouse, does not prove just cause for her living apart, the petitioner husband has still to satisfy the court that desertion was without just cause.
13. In the light of the aforesaid observation let us notice a few facts of this case. The marriage was performed on May 9, 1968. The husband went to Jorhat the place of his posting and came for 3 weeks from May 9, 1968, to June 3, 1968. He then came in November 1968 for 10 days. He came again in January, 1969, and was out to Bombay from February 2, 1969 to February 5, 1969, to attend the marriage of his brother on February 4, 1969. In July, 1969, he came for 10/15 days. A daughter was born to them on October 30, 1969, in the military hospital from where she was discharged on November 6, 1969. She went to her father's house and became fit to move about after a month but remained there from November 7, 1969, onwards. The husband was posted in Jodhpur on September 30, 1970. Some letters then exchanged between the parties. They agreed to meet in the Circuit House. On August 2, 1971, the meeting took place On January 11, 1972, this petition came to be filed. It was urged on behalf of the husband that though according to Hindu law, it is the duty of the wife yet since November 30, 1969, she made no efforts to come to the matrimonial home.
14. It was further submitted on behalf of the husband that both houses are separated by a furlong. She had joined the college but never came to the petitioner's house, though on her way to the college, she was daily passing by his house. In May, 1970, she was invited to the marriage of his sister, but she did not even send a congratulatory message. She twice attempted though in vain to join the medical college. In the Indo-Pak war of December, 1971, the husband was at thefront, but she did not try to contact the petitioner or his parents or other relatives to enquire about his safety.
15. The contention of the wife is that, as a matter of tact, the husband after he came to be posted -at Jodhpur, never wanted her to return to the matrimonial home. The husband falsely alleged that he had instructed her on 23rd October, 1969, that she should go to 'Susral' from the hospital but there is nothing of the kind in his letter (Ex. P 28). He says he had also written to his mother about this but that letter was (sic) produced, nor was the mother. The wife deposed that her mother-in-law did not ask her to come to 'Susral'. The letter Ex. 8 dated May 9, 1971, shows there was no willingness on the part of the husband to call her or receive her. This letter showed more than anything else, that the husband was building a case upon legal advice, to forsake her. By then he had determined 'to fight only once' but 'to finish'. In his cross-examination, the husband admitted that after the Indo-Pak War of 1971 he stoutly refused to take back the wife on any condition-She has been living in her 'Susral' from July 1989 to September 10, 1969, as the letter's were addressed by the husband to her on that address. She has been asking Chetan, husband's brother, about the welfare of her husband, but no reply was given to her. She used to contact his colleagues one Dipak and Sonpal and she also came to know that he was on no front duty at all.
16. The learned trial Judge has found the charge of desertion baseless. His findings are that the husband had decided before filing the petition that he was not prepared to keep his wife. In Ex. 8, he has categorically disclosed his intention in this respect. The learned Judge observed that it appears that he was waiting for the statutory period of just 3 years and no more to expire and charge her with desertion, while the wife has been asserting that she was ever willing and ready to live with him. When the husband came to Jodhpur after their daughter was born, he did not even care to go and see the child and its mother, did not even care to talk to her on the phone. The learned Judge has very rightly said that this kind of indifference on the part of the husband must have saddened the wife's heart and in these circumstances to expect her, soon after the delivery to go on her own to 'Susral', will be an unreasonable demand. To break the ice he was even invited on the eve of the Deepawali, but hedeclined the invitation on the pretext that he was busy in some official work, but admittedly he had gone out to see the lightings in the town. The learned Judge also refused to draw any conclusion adverse to her from the facts that she tried to join the medical course, as that was done upon the wishes of the husband, who was dreaming that his wife were a doctor in service along with him in the Air Force. The story of the invitation to his sister's marriage was found by the learned trial judge a concoction. If one were to believe what the husband has to (sic) this regard, even then one must not expect the wife to attend the marriage where naturally she was not welcome. No one went to invite her or her father, but the invitation was sent through a peon Hari Singh. The wife maintains that when she was discharged from the hospital, she was given to understand that she should go to her father's house and could return only when a 'muhurat' was conveyed to her. At the time of the trial, the husband's case has been that no one in his family believes in 'muhurat', but the learned trial Judge rightly found it false, as the family brought their car by the astrologer's time and the husband appeared in the court wearing some auspicious thread round his wrist. As a matter of fact, the husband has alleged acts of cruelty on the part of the wife and it appears that having entertained hostile feelings against the wife, it was the husband, who chose to keep the wife separated. There is no fault on the part of the wife. The learned Judge held that it was not possible to come to the conclusion that the wife had deserted the husband but the evidence pointed to the contrary. From 7th November, 1969, onwards the conduct of the husband has been such as if the wife had little meaning for him and when she wanted to know why it was so, then in his letter Ex. 3 he stated only trivial reasons such as, her father did not congratulate his father etc. That he sent through her brother a message to the wife to come, was also disbelieved by the learned Judge. Even when he was invited to a dinner on the Deepawali night, he avoided by saying that he was busy in official work. One Dr. Ram Swaroop Sankhla wanted to intervene. He stated in his affidavit that the wife was at all times ready and willing to go and live with her husband but she was not welcome and the husband even refused to agree to talk to her. The accusation that the intention of desertion was implicit in her attempts to join medical studies was also found untrue as the attemptsof pursuit of medical studies were made with the wishes of the husband. He considered it quite normal that a wife remained away from the husband for a period of 5 months after birth of the daughter. The learned Judge, therefore, held that the husband failed to prove desertion for more than 2 years and further that during all this period the husband was ready and willing to keep the wife.
17. The learned counsel for the wife has drawn my attention to letter (Ex. 3) dated June 15, 1971, sent by the husband to the wife. It was urged that this letter exposed the real motive of the husband why the wife was being deserted. The pertinent passage of his letter is as follows:
'On the occasion of the birth of our child the usual customary 'Badhai' (Messenger with auspicious news) was not sent nor did your father show the small courtesies to congratulate my father. In these circumstances, your father being found wanting in ordinary courtesy and customary observances there could hardly be any question of my and my parents visiting your father's house. Please note that at no time did your father have any talk over any matter with my father after the birth of the child.'
18. The learned counsel questioned what 'any other matter' was there to talk about, if it was not over money matters. This has to be considered in the light of the customary ^ux* that they were expecting incase of his sister's marriage. As a matter of fact, since no money was coming forward from the side of the wife's parents, he chose to forsake the wife. The learned counsel further stated that the greed of the husband was evidenced by a further fact that the wife had some money in a firm and the husband withdrew half of it on the ground that he had to spend on purchase of saris which he says he brought from Assam for his wife. All this criticism of the conduct of the husband is not without foundation. Be that as it may, I am left unconvinced totally that it was the wife who was in desertion. Rather it is the husband, who is guilty of that offence. There is no doubt that after the birth of the baby, the parties met once or twice only casually and thus the fact of separation is there but there is no intention on her part to bring the cohabitation permanently to an end while the conduct of the husband has been such as to give reasonable cause to the wife to believe that she was no more welcome in the husband's house. She says she had been insulted and humiliated in the presence of her college friends in her 'Susral'.The husband has failed to satisfy that the separation was without any just cause. The wife has until today been ready and willing to live with him forgetting all what has gone by. Though in the background of her education and family she was entitled to ask for a better treatment in the house, she has put no conditions. Since no desertion has been established there was otherwise no obligation on her part to attempt to return to the matrimonial home. Since husband had made it clear that she was no more welcome or can no more be tolerated, she is excused from any attempt to terminate the desertion. There is no animus deserendi on her part rather there is an implied consent on the part of the husband. The conduct of the husband cannot be overlooked by quoting scriptures regarding the duties of the wife as if Hindu law lays down no duties for the husband. I am, therefore, unable to hold that the wife is in desertion much less for the statutory period of not less than two years.
19. With regard to cruelty in Smt. Priti Parihar v. Kailash Singh 1974 WLN 397 : (AIR 1975 Raj 52) Ben C. J., referring to Russell v. Russell 1895 PD 315 said that cruelty is wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health bodily or mental as to give rise to reasonable apprehension of such a danger. It includes action or omission which injures the susceptibilities of the affected spouse and causes him or her mental agony which the sufferer alone can state Bucknill J. in Horton v. Horton 1940 PD 187 at p. 193 was of the view that a man takes the woman for his wife for better, for worse. He cannot establish cruelty merely because he finds life with her is impossible. He must prove that she has committed wilful and unjustifiable act inflicting pain and misery on him and causing him injury to health. In Siddagangiah v. Smt. Lakshamma AIR 1968 Mys 115, it was held that it is not restricted to acts of physical violence and may extend to behaviour which may cause pain and injury to the mind as well, and so renders the continuance in the matrimonial home an agonising ordeal. In Smt. Putal Devi v. Gopi Mandal AIR 1963 Pat 93 it was observed that a husband or a wife may not prima facie do anything directly against the other and apparently there may be good relations. Nonetheless, the behaviour may be such as to cause an extreme mental distress and consequent detriment to health. What acts will constitute mental agony will obviously depend uponthe circumstances of each case. Several factors will have to be taken into account, such as, environment, status in society, education, cultural development, local custom, social condition, physical and mental condition of the parlies etc. In Dastane v. Dastane AIR 1975 SC 1534 a decision handed down before the Act was amended in 1976, the Supreme Court held that the court has to deal not with an ideal husband and an ideal wif' (assuming any such exist) but with the particular man and woman before it. The threat by the wife to her husband that she will put an end to her own life or that she will set the house on tire, the threat that she will make him lose his job and have the matter published in news papers and the persistent abuses and insults hurdled at the husband and his parents were held all of so grave an order as to imperil the husband's sense of personal safely, mental happiness, job satisfaction and reputation, As regards condonation, the Supreme Court observed that condonation within Section 23(1)(b) means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. As to revival in that case, the wife had written a letter to the Government of India asking it to provide separate maintenance for herself and the children. The husband was an employee at the Pusa Hospital, Delhi. She alleged that during the period that she lived with the appellant, she was subjected to great harassment and mental and physical cruelty. The parents of the appellant were wicked persons and much of her suffering was due to the influence which they had on the appellant. They planned to get her examined by experts in the mental hospital with insincere, wicked and evil motive. On her refusal to submit to the medical examination, she was driven out of the house with the children after being deprived of the valuables on her person and in her possession. This letter was considered to constitute cruelty, but the Supreme Court proceeded to examine the back ground in which the letter was written. It came to the conclusion that the appellant had worked himself as to believe that the respondent had gone off her mind, he lodged a complaint to the police that she needed treatment from a psychiatrist, he wrote her aletter that she was in unsound state of mind and that he will not be liable for any expenses incurred by her during her stay in her parents' house, he wrote a letter to the Director Social Welfare that the respondent was a lunatic before her marriage, all thisshowed that the husband was preparing ground for a decree of divorce or for annulment of marriage. He was anxious to disseminate the information as widely as possible that the respondent was of an unsound mind. Yet she expressed her willingness to go to her husband as desired by him. It is in this background that the respondent wrote the offending letter to the Government. The allegations were provoked by the husband by his persistent and purposeful accusation, repeated times without number, that the respondent was of unsound mind. It is true that the more serious the original offence, the less grave need be the subsequent acts to constitute a revival, and in cases of cruelty, very slight fresh evidence is needed to show a resumption at the cruelty. The wife ought not to have described the husband's parents as wicked but upon this solitary circumstance there was no revival o condoned cruelty. As respects the burden of proof, the Court stated the rule that it is not the requirement of the law that petitioner must prove his case beyond reasonable doubt. Proceedings under the Act being essentially of a civil nature, the word 'satisfied' in Section 28 must mean satisfied on a preponderance of probabilities and not satisfied beyond a reasonable doubt.
20. Let us now examine our case in this light. The circumstances which are alleged to have caused mental cruelty to the husband in this case are said to be the following:--
1) On the eve of marriage an unidentified friend had caught her hand and bemoaned that she was being married.
2) She had appeared without a veil at the Toran ceremony and his grand aunt was pushed about at the marriage ceremony without an apology.
3) The diary contained references to one Ramesh. It is alleged that in the diary, she has mentioned of him as a nice guy. In cross-examination, she said that by 'nice guy' she meant friendly, while the impression of the husband is that the wife was living a romantic life with him. Ramesh admitted that it may be that she may have been impressed by him. The wife said that she used to tie 'Rakhi' to Ramesh, but Ramesh denied this. It was urged that 'nice guy' means 'Chhela' and that showed that wife was fond o a person like 'Chhela'. That she wanted to go to a dance with him and she did actually go jumping and dancing with him in Mandore in the company of his family. That shows that she wanted to main-tain her relationship with him even after the marriage.
4) Her connection with David Bargouhna, an Army Captain which is based upon a letter, which he addressed to her calling her 'Bhabhiji'. She was also seen with him in Nehru Park on 15th August, 1971. The letter has not been produced.
5) She, in her diary, stated that she was so much afflicted and has been insulted in the 'Susral' that she felt like taking poison. If she had implemented her intention, then it would have involved the husband in serious difficulties.
6) In her diary, she states that she wished that she could live like a 'hippy'.
7) In the letter Ex. 5, she delivered a muffled threat that she will expose the life her husband was living.
8) Against the wishes of his parents, she appeared on the college stage, sang and danced there in a drama. She called them old fashioned.
9) Her mode of living was quite contrary to a Hindu wife. She was alleged to be fond of English pictures, and of frequenting restaurants. She was seen in the Mandore gardens with one Vijay Singh. People have seen her dressing like hippies. She was seen on, the Shiv Ratri day in Kailana. She has been wearing slacks and shirt or short blouses and has been seen coming out of the local coffee house.
21. The learned trial Judge observed that in the original petition, the husband had not given all these instances which were the cause of his mental cruelty. When the wife asked for particulars, then, the husband amended the petition in which he detailed all these grounds. The husband developed his case further at the time of his examination when he alleged that his wife had relations with Ramesh which were akin to that of a husband and wife though no such allegation was made by him earlier. The learned judge described it as a wild allegation. Though the wife did not ask for any counter relief but she has explained the type of treatment she received in her 'Susral' which afflicted and tormented her. Nothing she did or talk was ever received with approval but she always met insults at each step. Even the servants were encouraged to ignore her. The husband was unable to prove as to who was the person who caught her hands on the eve of her marriage. The learned Judge found nothing wrong in the wife appearing without a veil at the time of the 'Toran' ceremony. The husband could also not substantiate the implied meaning in the request which people of her family made to him to take her to the place of his posting. On 15th June, 1968, there was a long dance dinner night in the mess at Jorhat where he was asked about his wife. Writing back home, he told his wife that be was able to tactfully avoid the inquiries. He also avoided showing them her photograph because he wanted to show them the photo of a slim wife. He also promised that he will bring her to Jorhat and that she should keep ready for that. He even advised her to take to Yogic exercises and drugs to reduce her weight. The petitioner told a lie to the Judge that he was posted in a non-family station, as his own letters belied him. The learned Judge also found that as confessed by him on the first night of marriage, he had no intention of marriage, but his parents forced him into it. He also found that the story of misconduct towards his grand-aunt at the marriage was also not proved.
22. The learned Judge then proceeded to discuss relationship with David Bargouhna and held that the whole story was disproved. He held that nothing was proved which could show that the wife had any objectionable contacts with him. The learned Judge has severely criticised the evidence in respect of the other allegations and found that the allegations regarding the mode of living, dressing, movement in cinemas and restaurants, were tried to be supported by unreliable witnesses.
23. I agree with the learned trial Judge, that all these allegations were tried to be proved by witnesses of doubtful veracity who came to the witness stand more to support the case of the husband than to tell the truth. I need not burden this judgment with all the facts found and the criticism of the witnesses as I am in agreement with the learned trial Judge in his analysis of the evidence and a few remarks will suffice for the present purpose.
24. The husband gave no details in his petition in the first instance in respect of the incideut with regard to unidentified person showing intimacy to the wife on the eve of her marriage. The husband stated that he came to know of this event from the members of his family who got it from some girl of 12-13 years old. This, therefore, is entirely a piece of hearsay evidence. Regarding the appearance of the bride without a veil, I could hardly conceive that it could ever be an element of cruelty, or that the bride shall begin to develop some ill feeling because the husband rudely pulled her veil on her face. The story regarding the illtreatment which was said to have been given to his grand-aunt was also not at all worthy of credence. Firstly, the grand-aunt and her husband have never made any such complaint and as the learned trial Judge rightly observed even if it were true the wife could not be responsible for that ill treatment. The letter with regard to David Bargouhna has not been produced. One Prem Singh PW 7 was produced to depose that he had seen her on 15th August, 1971, in Nehru Park but upon further probe this witness had to admit that he did not know who David Bargouhna was and his information regarding the identity of the boy is based upon the gossip he heard at the betel shop. He is an old friend of the petitioner and bis family, yet he did not narrate all what he saw immediately to the petitioner but waited for nearly two months till at the time of Deepawali the petitioner and the witness happened to meet. The allegation regarding her movements with unidentified persons were for the first time levelled in the letter Ex. 8 dated 9th May, 1971. The details regarding these allegations were also Dot mentioned in the amended petition. This creates a grave suspicion about their being invented afterwards. The witness J. R. Purohit PW 2 claimed to have seen her with a young boy in October, 1970 in a lawn in the Mandore gardens. He also saw her with another boy in an English picture. He further stated that the same day he told all about this occurrence to the petitioner who was his boyhood friend. But it is strange indeed to find that the petitioner took this information casually and did not care to know as to who those boys were. There is no mention of these two incidents in the letters that exchanged between the parties. The name of this witness was not in the list of the witnesses and he appears to have been discovered subsequently. Above all this witness failed to identify Mst. Priti when her photograph was shown to him. Laxman Singh PW 3 saw her in the Olympic Cinema in modern clothes in the. company of two hoys in December, 1969. He narrated this to the petitioner at the time of Holi in 1970. The witness was totally falsified when the husband himself deposed that on the occasion of Holi in 1970 he was in Assam and not in Jodhpur. Ram Prakash PW 4 claims to have seen her with Ramesh and in March, 1969, with other boys in Olympic Cinema drinking from one bottle. Ramesh was calling the girl as 'Darling Priti'. He said that he narrated this to the husband at the time ofDeepawali. Upon cross-examination the witness completely fumbled and was unable to give details as to the position at which Priti and her friends were sitting. Ved Prakash PW 5 was an employee of the college. He saw the appellant dressed like a hippy several times. She was seen by him moving with boys and also saw her half dressed near B. Ed. hostel. He also saw her dancing in the Army Mess and he told this to the petitioner in January, 1971 when they met in a party at the place of Wing Commander Misra. The petitioner himself was a student of Law College in 1972-73, then also he used to tell him about the way Mst. Priti dressed. Asuram PW 6 has seen Mst. Priti several times in the house of Vijay Singh who used to give her lessons in scooter driving. He also saw her in 1973 in Kailana with him. Priti is the niece of Mahavir Singh. Vijay Singh is the son of a relative of Mahavir Singh who accepts Rakhi from Vijay Singh's mother. Vijay Singh had a quarrel with his own wife who is a sister in relation to the petitioner. It appears that the petitioner was hitting two birds with one stone by introducing this witness. Asuram PW 6 has no personal knowledge but his information is based upon whatever he heard at the Pan shop near her house. Prem Singh PW 7 stated that in the year 1971 he saw her in the college lawn with two boys dressed like hippies and singing love songs. Hardayal Kaur PW 10 had seen Priti in the company of boys and dressed in pants, bush-shirt, and short blouses. She admitted in her cross-examination that she is widow and lives in a house of Anand Singh who is friend of Shri Kan Singh father of the petitioner. She manages to live upon a bare pittance of Rs. 50/- as widow's pension out of which Rs. 7/- she pays to the landlord and she has no other occupation. Without doubt this woman is a person of unreliable character. On the contrary, the wife has produced about 23 witnesses representing a cross-section of her teachers both at Jodhpur and Ajmer, her classmates, managers of the Olympic Cinema and Coffee House who have all with one voice said that Mst. Priti was dressed like ordinary girls and never indulged in befriending boys or singing love songs with them and her behaviour and character was nothing but ideal The petitioner came out with a story that he had seen her in Mandore with a boy on scooter and in March, 1969 he had seen her coming out of an English picture in the Minerva Cinema and going away with a boy on a scooter. The learned Judge dismissed this as a canard because if theseincidents were true they would have most certainly found place in the petition.
25. The learned Judge then examined the relationship of the wife with Ramesh. It was alleged that besides the reference made to him in the diary, he was seen with her in the gardens of Mandore in January, 1969, and in the ball dance in the army mess on the night intervening December 31 and January 1, 1971. According to the husband, he discovered about the memoirs in February, 1969, when he received some pages thereof, sent by some unidentified person by post and had a tiff with his wife at midnight over them which attracted the attention of his parents, who are said to have intervened and saved the situation. The learned Judge also disbelieved that the diary was received through post sent by a person of an unknown identity. The wife had maintained that whatever she wrote in her daily diary was always read by her husband and when she came for delivery, she had left all those diaries at 'Susral'. The husband after that event went to Delhi by car and enquired about Ramesh in Ajmer. Yet on March 10, 1969, he addressed a letter to her on his father's address. In this letter he did not say any thing about Ramesh nor in the letter of March 13, 1969, which he sent to his mother. The learned Judge also found that the petitioner tried to tamper with the diary dated January 4, 1969, so that the memoirs of that day could be connected with Ramesh. In respect of the two events mentioned in respect of Ramesh, the learned Judge held that these were the stories woven around the references found in the diary. Ho also found that the story about ball dance in the Army mess was also not proved by any trustworthy evidence,
26. Lastly, the learned Judge quoted in extenso and scrutinised the diary. I shall not reproduce the whole of the memoirs but shall confine to whatever has been charged as giving cause for mental cruelty. The ob-jectionable features in the diary are said to be the following:
4th January, 1969
'My snaps have come. They are nice but I am not satisfied really, I wonder if he would like 'em xxxxx'
It is alleged this is a reference to Ramesh. 5th January, 1969
'xxxxx First thing in the morning when I was nearly ready to leave for Jaswant College hall for the final practice, who comes in No one else, but Ramesh. I could not believe it at first but all the same I was so happy and excited to see him -- we talkedof the good old days I had spent 'crying' at sophia. He hasn't changed one bit and even though I'm married now he's as friendly as he used to be. We have asked him over for lunch tomorrow. He is a nice guy.
Our charity show went on quite well and our songs were good, especially twjk people said I sang well, but who knows. The music master said that if he had another 4 days, he 'd make me lead the song. I was rather scared-what will my in-laws have to say about it, but why would they mind it. After all it was, K. N. Hall show and for charity. I wish they 'd be more broad minded about things. They seem to mind everything that I do.'
6th January, 1969
'xxxxx Ramesh, Balesh and Rani were invited to lunch with us. They -- except Rani -- came quits early and sat in the kitchen as I cooked pulow. It was fun talking to him really -- he makes you laugh like any thing and one being -- he has not forgotten our friendship. He still talks like that. After lunch all of us -- Papa-Mama included went to show them Balsamand aud Mandore etc. and again it was the first time I ever enjoyed going to Mandone -- so free of care, laughing and talking, joking, running and jumping. It is so different from going with my in-laws -- with them I am so tied up in veils etc. That I start hating it all xxxxx'.
7th January, 1969
'xxxxx There is no welcome for me how can there be any welcome for my friends. I do not see wrong in taking your close friends homo without telling. Whatever I do turns out wrong. I will take poison. I prefer dying than living that kind of humiliated insulted life any more, xxxxx'
8th January, 1969
'xxxxx Ramesh is leaving for Ajmer tomorrow, so he came to us and sat down for quite some time. We chatted -- he said some thing about a dance he'd been to -- said 'I kept wishing you weren't in your Susral so I'd have been able to take.' I'd loved to have gone. It's been ages since I went to t party it would have been a change from this dragging routine. I hope Kailash will agree to come to Ajmer for the prize giving day. It'll be fun I know, xxxxx'
20th January, 1969
'xxxxx I wish I could go away -- very far away -- from this world where there's no feeling for any one. Those Hippies I read about in the papers -- they seem to be so happy without a care in the world. I could go away and join them but these bonds that tie me we are so strong that I can't break them. Ihave to go back there--susral--soon and I am dreading it.'
27. The learned Judge now commented that the wife felt suffocated and miserable on her being kept in veils in her 'susral', which she greatly disliked and therefore, she enjoyed her outing to Mandore. The learned Judge concluded that the memoirs disclosed that probably there was objectionable relationship between her and Ramesh. It was not without foundation if the husband entertained doubt about the conduct of his wife upon reading the memoris about her relationship with Ramesh. The learned Judge however, held that the memoirs came in the knowledge of the husband after November 7, 1969, but in order to complete the statutory period for divorce, he said that he got the memoris in February, 1969. It is the husband who has to tell about the effect of the conduct of his wife on his mind and the husband has categorically stated that the conduct of the wife caused mental cruelty. The learned Judge, however, agreed that there was nothing in the memoirs about his parents which could have caused any mental cruelty. The learned Judge also rejected the contention that the letter (Ex. 5) dated June 10, 1971, in which the wife stated that 'I am not prepared to expose the kind of life you are leading xxxxx,' was not in the circumstances it was written such as to cause any cruelty. One of the allegations of mental cruelty was that she took part in drama in her college. It was not proved but even if she were to take part as a play back singer in a college function which she had been attending while living in 'Susral' if could amount to no cruelty. But it was clear that the wife did not feel free in her 'Sus-ral'; the discipline of 'Susral' was considered by her to be severe; she was afraid of the harsh treatment of her mother-in-law and was always afraid of going there. She could not adjust to the atmosphere she found there because it was different from what she was used to enjoy in her father's house. She is a very sensitive girl and out of emotional upsurge she wrote in her memoirs about her feelings to end her life. Yet the learned Judge was of the view that it was quite natural for the husband to feel mental cruelty when he read that his wife was even thinking about suicide. Whatever be the conditions in her 'Susral' the learned Judge sermoned that an educated girl coming from one high family to yet another high family, should not have entertained such ideas which would naturally cause mental cruelty to her husband when they came to his knowledge. The learned Judge held that relationship with Rameshand the desire to end her own life are the two acts of mental cruelty which were proved by the diary. I agree with the trial Judge with most of his findings but I cannot agree with him that the remarks and reactions of the wife contained in the diary about the life in 'Susral' were such as would 'naturally' cause mental cruelty to the husband. Upon a reading of these offending memoirs one will be struck by the fluency of expression of thoughts crossing the wife's mind as against the matter of fact tattle which we rind in the letters written by the husband. There is a sort of mental inequality. I have been made to read and re-read these passages and each time I have found them totally innocuous in all respects. All girls who have received modern education and are treated with contempt in their 'Susral' and without affection and due respect are bound to entertain the types of feelings which the wife has recorded in the aforesaid passages. There is nothing wrong if the wife had a nostalgia for the happy days at school when Ramesh happened unexpectedly to come to see her No wonder if the girl felt like taking poison. No wonder if she felt breaking the fetters which were not bonds of love and had made her miserable. There is nothing in them so far as Ramesh is concerned which can be considered objectionable in any manner. Ramesh was a family friend and was naturally invited to a meal and to an outing, and was expected to say good bye before leaving Jodhpur. What was natural was that the wife felt more care free and enjoyed her outing in the company of her parents and friends which naturally she was unable to do in the company of her in-laws covered in long veils. All married women do so. Moreover, how does it amount to treatment of the husband with cruelty? This is a mere record of her feelings and sufferings and if the husband were not fully under the influence of his family which has a generation gap, he would have cared to know why the wife felt in the manner she did and whether he could do anything to improve her lot specially in his absence when he was for most of the time posted outside Jodhpur. The husband though a member of the defence forces where ball dances and parties are so common exhibited complete lack of open mindedness and even objects why the wife could even wish she could go to such a party. He was even shy of her weight -- utterly unlike a chivalrous profession in which he is. It is indeed cruel to take offence to these suppressed and harassed feelings rather than to show consideration and sympathy for the suffering wife. Thewife even complained that seeing some marks on her abdomen her mother-in-law suspected that she had a pre-marital pregnancy. One can imagine the anguish which such taunts and remarks are likely to create in the mind of the daughter-in-law. The complaint regarding her dresses is all the more puerile. One daily comes across girls young and middle aged coming from sophisticated families found dressed in the fashion of the day without any eye-brows being raised from their parents, husbands and other members of the society, who are equally respectable as the petitioner and his family, may claim. To exaggerate a mode of dressing out of proportion or to read the diary out of context is to make a grievance where none should be. To misconstrue a simple harmless word like 'nice guy' used for Ramesh as meaning 'a Chhela' (an undesirable dandy) was nothing but sinister. Even if one were to hold in favour of the husband that the wife was sick of the atmosphere in his house and out of sadness, she felt like taking poison or if she felt how happy the liberty loving hippies were or she attended some dance party or went to English pictures, or to a restaurant; all these are accusations which have been stoutly denied by the wife, none of these acts severally or collectively can cause any cruelty, mental or otherwise, unless the husband chooses to work himself up to believe that he is being treated with cruelty. I have little hesitation that a little word from the husband would have stopped all these things. But there was total lack of affection and courtesy which an educated girl expected from the members of the family which is highly placed in society. It was an arranged marriage and those who have taken a convent educated girl, who is sought for by educated men when they specially the men of the defence forces, look around to find a partner should have reacted not in a hostile but affectionate manner to her liking or longing for modern living. Moreover, soon after the diary came to the knowledge of the husband sometime in February, 1969, we come across a series of letters in which he has waxed eloquent over his affection towards his wife and has in each letter been sending 'a million kisses' which is a conduct opposite to that of a person who can since complain that he was cruelly hurt upon reading the diary. The explanation of the husband is that he being an Air Force Officer, his letters were subjected to censor and therefore he wanted to maintain a facade of the marriage, and hence the hooey he poured in his letters. This cannot be believed and I do not at all feel satisfied that thecensor if there be any, will take objection if he told his wife what he felt about her. Were we to believe this, then the husband was certainly trying to cheat the heart of a sophisticated girl. Why did he write at all? He could have just kept quiet, The husband, therefore, it roust be held, felt no mental cruelty upon reading of those memoirs. The learned Judge too had to treat his letter at least suggestive of condonation. But by two circumstances, (1) the complaint contained in her letters Exs. 12 and 13 made to Air Force Authorities (2) allegations which are made iu cross-examination of the hushand that his sister had gone away to USA with some unrelated person and that she was of doubtful character, he felt that cruelty had revived. Here I do agree with the views of the learned lower court but with this modification that these facts specially the letters were acts of cruelty not slight enough to effect revival only but per se constitute spousal cruelty in the first instance. The complaint which the wife made against the husband to his officers could have even cost him his job and is certainly an act which would bring about mental cruelty. The questions that in this connection arise ate whether these acts which took place after the petition was filed, could be taken into account for this purpose and whether in the circumstances, these acts were provoked by the husband himself and therefore, do not amount to cruelty.
28. The learned counsel for the appellant contended that the events subsequent to the cause cannot be taken into consideration without the consent of the opposite party. Ho cited Gindan v. Bare Lal Kashi Kalar, 1976 Hindu LR 270 : (AIR 1976 Madh Pra 83). The learned Judges in that case observed that under Section 10(b) of the Hindu Marriage Act, the word 'cruelty' has reference to before filing of the petition for judicial separation and not subsequent thereto. He further relied upon State of Rajas-than v. Buudi Electric Supply Co. AIR 1970 Raj 36 for the submission that no amount of evidence can be looked into on a contention which has not been raised in the pleadings. He also argued that the petitioner has not based his claim on these complaints and he was not allowed to plead any new facts in the rejoinder as decided by the High Court.
29. I have considered these objections. As far as the position of law is concerned, in Dhan Singh Yadav v. Badri Prasad 1963 Raj LW 304 : (AIR 1963 Raj 198) and in Ram Dayal v. Maji Devdiji (AIR 1956 Raj12) this court has held that relief can be granted on the basis of the events that have taken place subsequent to the suit. In Lachmeshwar Prasad v. Keshwar Lal Choudhari AIR 1948 FC 5 the Federal Court held that in moulding a relief even the appellate Court could take into account the facts that came into existence even after the decree. Moreover, the letters were written before the amendment of the Act and before the petition was allowed to be converted from judicial separation to dissolution. In her reply the appellant has stated that she wrote the letter to Air Force Head Qrs. by which the petitioner was annoyed and filed a suit for damages for defamation and obtained a decree of Rupees 6,000/- against her. These facts were therefore also parts of the pleadings and can ba made the basis for the relief of divorce.
30. I have stated above some judicial opinions with respect to what it is that we call cruelty, The conduct complained of must be much higher than in the words of Lord Asquith in Buchler v. Buchler (1947) 1 All ER 319 the ordinary wear and tear of married life. In order to determine cruelty it would not be safe to compare one decided case with the other as no one has ever attempted successfully to give a comprehensive definition of cruelty and I do not intend to try to do so. Probably no general statement is equally applicable in all cases except the requirement that the party seeking relief, must show actual or probable injury to life, limb or health, If one spouse sets out to hurt the other and causes injury to the health the means whereby that happens can hardly matter. Judges have shown much ingenuity where justice demands a remedy but where it is extremely improbable that the respondent had any intention to cause harm. The objective test of what a reasonable man would have had in mind slips in. The House of Lords held in Gollins v. Gollins (1963) 2 All ER 966 (HL) that where two spouses are of normal physical and mental health and the conduct of the respondent spouse was considered, is so bad that the other should not be called upon to endure it, cruelty is established and then it does not matter what was the respondent's state of mind. It is immaterial whether the respondent's conduct aimed at the other spouse or was simply due to unwarranted indifference. The spouse must be presumed to intend the natural and probable consequence of his or her own acts. It is not necessary to prove that the respondent intended to be cruel provided that her intentional acts amounted in fact to cruelty. Instead of going into the various decisionstrying to explain an illusive word like cruelty, I can do no better than quote what Harman L. J. said in Le Brocq v. Le Brocq (1964) 3 All ER 464.
'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 blow. 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 where they heard it related,' Well, that was cruel of him,' before a husband can be branded with a serious charge of being cruel to his wife.'
31. In Gollins v. Gollins, Lord Evershed said,
'The question in all such cases is, to my mind whether the acts or conduct of the party charged were cruel according to the ordinary sense of that word xxxxx.'
32. Salmon L. J. agreed that it is important to emphasise that 'cruelty' means cruelty in the ordinary and natural meaning of that word. Cruelty has no esoteric and certainly no artificial meaning in the law of divorce. Again the treatment with cruelty must be treatment since the celebration of the marriage and even acts after the parties have separated and are living apart, may establish ground for alleging cruelty.
33. Lord Pearce in Gollins v. Gollins (1963-2 All ER 966) stated that the phrase 'treated with cruelty' is no more than a convenient description of a situation where thera has been cruel treatment of which the respondent was the author.
34. Now, the explanation of the wife is that the letters Exs. 12 and 13 she wrote to the military authorities were written in the background that in spite of her willingness and readiness to go with her husband, he was persistently refusing to accept her and had chartered a course of litigation as is indicated by the letters written by him which certainly were written as also as held by the court below, upon legal advice. He was openly accusing her of objectionable relations or association with an Army Captain and a childhood and family friend Ramesh. He was refusing to maintain her and their child. The wife was bound to feel hurt at the unfounded charges and apply to the military authorities for maintenance as was provided in the Air ForceAct. I do not think the matter is so easy. It is one thing to ask for provision and quite the other to complain to the military authorities that her husband has cheated them and that her in-laws were waiting for presents from her side to come. She has said in one letter dated February 2, 1972, that 'according to the customs which were unfortunately deep-rooted in my in-laws, he was to take me back from my parental home in a function organised for the purpose. At this occasion valuable presents are likely to be presented to the husband and the relatives. It seems that my parents could not come to an understanding with my in-laws, so my de-parture was delayed and is still being delayed. So, I am still with my parents. My husband never came to see me or to see his newly born daughter and she is being ignored. The relations of both the families had reached to a breaking down point. I want that all these facts should come on record so that the privileges obtained by him be scrutinised, and the privileges which are allowed to a married man be diverted from him to maintain my child and myself for a decent living. His record, if scrutinised will clearly reveal that he has availed all the facilities including the family posting etc. on a false report that he is maintaining his wife.'
In the other letter dated July 1, 1972, she wanted to know the result of investigations on her request and further complained that he has obtained leave on the pretext of attending the court while he has availed of the leave in order to appear in B. A. examination of Saugar University. The complaints were followed by a written statement in which allegations of greed were levelled against the husband's parents, of inferiority complex against him and further by insinuations against his sister at the time of his cross-examination. This is conduct which certainly causes danger to one's mental health and therefore amounts to cruelty. These are acts which were intentional and could not be ignored on account of strained relationship that had come about.
35. Now, relief. Section 23(1) of the Act enjoins that in any proceedings under the Act whether defended or not the court shall not grant a decree unless it is satisfied inter alia that the petitioner is not in any way taking advantage of his own wrong or disability for the purpose of relief. It was strenuously urged before me that all along it is the husband who has in fact been a guilty party and was determined to obtain dissolution of the marriage either hook or by crook. None of the allegations which helevelled against the wife has been proved and a husband simply cannot be permitted to dissolve the marriage as and when he chooses to do so. Though the wife has not asked for relief, the fact is that she has been treated with cruelty and if husbands are permitted to dissolve marriages in cases like the one we are dealing with, it would make a mockery of marriage. This part of the case has caused me many anxious moments and I have found that it would be not proper to refuse relief in this case. Firstly, it is not correct to say that the subsequent cruelty is on account of wrong committed by the husband. Secondly, the relationship between the parties and their families in spite of a conciliatory attitude shown by the wife and her parents to have been reduced to nothing and all attempts at reconciliation made by the well wishers of the families, by the District Judge and some of the Judges of this Court have failed largely became the husband was not prepared to accept the wife. They also could not see their way through a divorce by custom or by consent. He made it absolutely clear to me that come what may, living together was an impossibility, If such a marriage is not allowed to be dissolved, it is not going to bring about happiness on either side. That is why the courts in India have been feeling uncomfortable, while coming across such a situation, and have been leaning towards permitting the couple to live apart. P. L. Sayal v. Sarla Rani AIR 1961 Punj 125 was a case for judicial separation. The wife had administered love potion to her husband with deleterious results. The wife was extremely repentant but the court decreed the application of the husband because in the situation and state of affairs it would be plain denial of justice to keep them, within the bonds of marriage.
36. In Alop Bai v. Ramphal, AIR 1962 Madh Pra 211, the learned Judges observed (at p. 212):
'In marital matters it is the attitude of the mind and the feelings that count and no decree of the court can force the parties to live together. It is because of this fact that Section 23(2) provides that before granting any relief under the Act it shall be the duty of the court in the first instance to make every endeavour to bring about a reconciliation between the parties.'
37. The Andhra Pradesh High Court in K. Damayanthi v. C. Rama Rao, AIR 1969 Andh Pra 62 commented as follows (at p. 63):
'It may be said as indeed it was said by the learned counsel for the respondent that changing social conditions require that thereshould be no rigid insistence on the maintenance of a union which has utterly broken down.'
38. In Kuppuswami v. Alagammal, AIR 1961 Mad 391 Anantanarayanan J., had to say as follows (at p. 392):
'The difficulty is whether in the definite future also this state of things is to subsist between the parties without any possibility of beneficial modification. This is all the more urgent in that courts, functioning as matrimonial courts, are there to support and to encourage the state of matrimony by all means, and not merely to acquiesce in or to support a state of affairs in which the marriage is only in name, and its true purpose of connubial living is permanently frustrated.'
It appears therefore that a marriage in which the parties could no more live together deserved to be dissolved. But there is no provision in the Act, that a marriage which has broken down irretrievably should be dissolved. Even in England this was introduced by the Matrimonial Causes Act, 1973, but the courts even earlier appeared to be acting upon it, and have shown much ingenuity where justice demanded a remedy. In Kelly v. Kelly (1968) 1 WLR 152, Wrangham J., found that break-down had to be attributed equally to each and in the interest of everybody, directed that the marriage should be dissolved. He observed that a discretion of the court should be exercised in such cases in favour of each party. There must be comparatively few cases where it could be found that the spouse who has suffered cruelty from another spouse is nevertheless reacting so unreasonably to that cruelty that he or she should be convicted of cruelty as well, because obviously the worse one spouse behaves the more it may be said that he or she asks far from the other spouse. In King v. King 1953 AC 124 Lord Normand said that where either party has reacted unreasonably to the conduct of the other party, then cruelty may be found because in such a case the complainant has got not merely that she or he asked for but more than he or she asked for. In the case on hand cruelty by the wife has been established as indicated by me above. Though I have no hesitation in saying that if the husband has been entertaining any doubt about the character of the wife, then it is without any foundation and he has troubled himself on misinformation and imagination. I agree however that the subsequent conduct did cause to him mental cruelty. The complaint, which the wife made to the army authorities could do him immense harm. The irresponsible insinuations and allegations which were made during the course of litigation against the husband and his family cannot be brushed aside by simply saying that these were acts in reaction to husband's behaviour and should be ignored on account of the strains that have developed. In my view, this is where cruelty has taken place. The learned counsel for the appellant submitted that the husband cannot be allowed to take advantage of his own wrongs. If he is allowed to have his way, some other innocent girl may fall a victim to his viciousness. As a matter of fact the husband was guilty of cruelty and the wife went on quiet-ly suffering. Now, if it is so, then it is all the more appropriate, as the learned trial fudge observed, that the couple is permitted to live apart. Their marriage is now only an empty shell which should be destroyed with the maximum fairness and minimum bitterness. I am satisfied that the marriage deserves to be dissolved. If they cannot bury the hatchet, let them bury the marriage and live again. Divorce is no doubt not a cure tor matrimonial happiness and may result in loneliness, despair and hardship more to the child than the spouses but the parties are young and fortunately belong to a community in which severance of marriage and remarriage are not uncommon events and may be able to find more agreeable parties.
39. I, therefore, uphold the impugned judgment and decree and dismiss this appeal. The husband shall bear his costs and those of the wife as well.