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Jyotish Chandra Guha Vs. Sm. Meera Guha - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 375 of 1964
Judge
Reported inAIR1970Cal266
ActsSpecial Marriage Act, 1954 - Sections 27, 34(1), 35 and 51(1); ;Divorce Act, 1869 - Sections 10 and 14; ;Hindu Marriage Act, 1955 - Sections 10, 13 and 23; ;Special Marriage Act (Calcutta High Court) Rules, 1955 - Rule 340A
AppellantJyotish Chandra Guha
RespondentSm. Meera Guha
Appellant AdvocateB.K. Ghosh, ;Samir Kumar Mookherjee and ;Jyotirindra Roy Chowdhury, Advs.
Respondent AdvocateJyotirmoyee Nag and ;Manjuli Sen Gupta, Advs.
DispositionAppeal dismissed
Cases ReferredIn Sheldon v. Sheldon
Excerpt:
- salil kumar datta, j.1. this is an appeal by the husband against the judgment and decree passed by the additional district judge, 24-parganas allowing the wife's application for a decree of divorce.2. the material allegations of the wife in her petition for divorce are as follows:(a) the parties were married on 21st january, 1945, under the provision of the special marriage act (act iii of 1872). it appears that the age of the wife at the time of marriage was about 21 years while the age of the husband then was 34 years. after marriage the wife came to reside at 80/d, lansdown road, ballygunge, being the place of husband's residence. within a few days, the wife found the husband cold and indifferent and sexually abnormal and perverse. shortly thereafter, the husband left for united.....
Judgment:

Salil Kumar Datta, J.

1. This is an appeal by the husband against the judgment and decree passed by the Additional District Judge, 24-Parganas allowing the wife's application for a decree of divorce.

2. The material allegations of the wife in her petition for divorce are as follows:

(a) The parties were married on 21st January, 1945, under the provision of the Special Marriage Act (Act III of 1872). It appears that the age of the wife at the time of marriage was about 21 years while the age of the husband then was 34 years. After marriage the wife came to reside at 80/D, Lansdown Road, Ballygunge, being the place of husband's residence. Within a few days, the wife found the husband cold and indifferent and sexually abnormal and perverse. Shortly thereafter, the husband left for United Kingdom on business for about three months and the wife became busy with her M. A. examination which was held in August, 1945. During the period from marriage till September, 1945, except the sojourn in foreign land, the wife found the husband cold and indifferent towards her and the husband would flare up on occasional slight protest made by the wife at his said coldness and indifference.

(b) After her examination was over, a period of unspeakable misery and agony, both physical and mental, for the wife ensued as the husband was too busy with the East Bengal Club and its young members which appeared to be the be-all and end-all of his life, avoiding the wife's company altogether. The husband would go straight from his so-called business to the club and return therefrom during late hours of night; he would then talk with his mother till late in the night returning to his room after ascertaining that the wife had fallen asleep. The occasional remonstrance by the wife and her rare expressions of desire for his company and to have a child used to upset the husband so much that he would become rude to her stating that she was too ugly to attract him. Even on such occasion he would strike her and at times strike her hard. For the wife the days rolled on in un-happiness, agony, and frustration and desperation due to the rude and cruel conduct and misbehaviour of the husband who thus practically deserted her although living in the same house. Thehusband's mother sided with the husband and reprimanded her as over-sexy modern, girl and selfish. Her father-in-law was reasonable in his attitude to her though he had no freedom of action and he died in 1954. The feeling between the wife and the husband became highly strained due to the attitude of the husband, who, to get rid of her, suggested that she should go to the United Kingdom for higher studies and that her education would make up her lack of beauty and the husband would be able to present her in society with his head high. For considerable time prior to the wife's starting for England she used to visit her parents then staying at Lahore and Jaipur and stay with them for long periods and beseeched them to allow her to stay with them in order that there might be an end of her miserable existence in the husband's house.

(c) The wife sailed for England in August, 1948, and got herself admitted in the London School of Economics for her Ph. D. Degree in geography. She stayed in the United Kingdom up to December, 1951 throughout except two visits in India. During the visits the wife found the husband more cruel, apathetic, negligent and cold and even her letters from England to the husband were found unopened in his desk. After her return from England there was occasional discussion by her parents with the husband for her stay with them, but all such discussions ended in physical violence to the wife and rude and rough behaviour to her parents.

(d) in August, 1952, the husband's family moved to their own house at 23, Lake Place, Tollygunge and the wife, with her parents living at Jaipur, had to reside at the said Lake Place house. The wife spent her days in frustration and agony and would have suffered a complete mental break-down but for a job as Lecturer in Geography she could secure in the University of Calcutta in the latter part of 1952, and she realized that she would have to live in a frustrated married life. She dedicated her life to her work in the said University and began to observe complete home reticence and indifference at the matrimonial home and apparently a defiant attitude to the husband. As a result of this, there was, in the husband's house, no more of physical torture and violence and mental shock to her. The wife realized that the husband wanted her to live elsewhere and that the husband had developed a feeling of hatred and abhorrence for her. In the same house, thus, they became strangers to each other and during the years of 1952, 1953 and major part of 1954 the wife was living her routine life, and each of them having his or her own way.

(e) in the early part of 1954, the wife's father was transferred from Cuttack to Mandalay and on his way to Mandalay at the wife's request he rented a room in April, 1954 at 67, Raja Basanta Roy Road, P. S. Tollygunge, leaving there, the wife's mother and sister in order that they might occasionally give her company and console her. Thereafter the wife's father secured a fiat at 51-M, Keyatala Road, Calcutta from November, 1954. By this time the wife made up her mind to desert the husband forever and from November, 1954, began to live with her mother and sister at the said flat since they had moved there.

(f) in May, 1955, the wife's father came down to Calcutta and on the morning of May, 16, 1955, he went to the husband's residence with a view to coming to some sort of understanding about the future course of life of the wife, whereupon the husband threatened the wife's father with violence and dragged him, so to speak, at the house at Keyatala Road. In the course of heated discussion held in the flat, the husband gave two alternatives to the wife --namely to sue for a divorce or to give up her employment in the University and to go to Mandalay with her father. To the said proposal the wife gave out that she could not think of divorce as her young sister was not then married nor could she ruin her career by giving up her service. At this the husband became mad with rage and struck the wife with a cricket umpire's stick which he had carried with him and when the wife's father and sister tried to prevent the stick being used against the wife, they were also struck by him repeatedly. The neighbours rushed in and came to their rescue and finally the husband was sent to Tollygunge Police Station where the wife and her father and sister made statements. The wife in the circumstances charged the husband with desertion and cruelty and apart from other marital offences, she even declared in her petition that during the first four years of married life, the husband did not cohabit with the wife for more than six occasions and that too about 3 years after marriage. The wife further stated that from November 1954, apart from the Incident of May 1955, she had no contact with the husband. There are the usual averments of absence of collusion and connivance between the parties.

3. On the above allegations, the wife came to Court praying for a decree of dissolution of her marriage with the husband under Section 27 of the Special Marriage Act, 1954, (Act XLIII of 1954) her application having been filed on October, 3, 1958.

4. The application was contested by the husband who filed an elaborate written statement denying all material allegations made in the petition.

(a) It was denied that there was any act of cruelty or desertion on the part of the husband or that the wife had any cause of action for initiation of this proceeding. The husband alleged that immediately after the marriage he found the wife cold and indifferent to him, which, he mistook as her devotion to her studies she was doing for her M. A. examination. The husband declared that during the period from January to June, 1945, he lived and co-habited with the wife in the normal and usual course except the voluntary restraint made by them in consideration of the wife's examination. In June, 1945, the husband, an international and Well known football player, left for England for 3 months. On his return on September 5, 1945, the husband discovered that during his absence the wife succeeded in reviving her old love for one of her class-mates, Himangshu Roy, and his temporary absence gave opportunity to the wife and Himangshu to misbehave themselves. As he met his wife, he was surprised to find her not so responsive. On the following day, the wife left for her parents' place at Lahore and stayed there until October, 1946, when the husband again went abroad for business.

(b) During the latter part of his stay in England, the wife came to Calcutta and lived with the husband's family. But on the very day the husband returned to Calcutta from Europe, the wife again left for Lahore. The husband, on his return in January, 1947, came to learn that the wife avoided his company and did not like to live with his family but derived pleasure in the company of a person like Himangshu Roy, The husband reported the unbecoming affairs to wife's parents and he was asked by the wife's father to come to Delhi to settle the matter. The husband went to Delhi in August, 1947, when his father-in-law also came and took him to Jaipur where he was then with his family. At Jaipur the wife promised to give up her old habits and to be a dutiful wife. The husband agreed to forgive the past and on such condonation the parties on way to Calcutta came to Delhi staying there for a couple of days at Agra Hotel. Even at the hotel he found his wife writing a letter to her mother confessing that in spite of reconciliation she had sent a telegram to Himangshu for rescuing her. The husband found the wife incorrigible but the husband requested the wife to put up normal relationship till they returned to Jaipur. At Kutab Minar where they proceeded on sight-seeing, the wife, as she confessed later, wanted to take extreme liberty with her life, as she felt guilty in her conscience. This confession melted the husband's heart and on return to Agra Hotel, he forgave the wife. They enjoyed each one's company and cohabited in the said hotel and left for Jaipur instead of Calcutta. At Jaipur, they found that Himangshu had arrived in the meantime.

The parents of the wife pleaded for their daughter and the husband assured them that he would take her back. On or about August 14, 1947, the wife made an attempt to commit suicide but she was saved by the strenuous attempts made by the husband on the timely alarm by the Nepal servant. At the entreaties of her parents, the husband was presuaded to take her back and thereafter the wife and husband returned to Calcutta, the husband hoping to build up a happy home.

(c) Himangahu however persisted in his pursuit for the wife in spite of a police warning by the Deputy Commissioner of Police, Lalbazer. Even then after a short interval the telephone calls from Himangshu began to pour in. These were reported to the parents of the wife and they came down to Calcutta in May, 1948, when the husband was leaving for U.K. as Manager for the Indian Boxing Team for Olympic. ,As desired by her parents, the wife accompanied the husband to England where she was taken for her Ph. D. She stayed back while the husband returned and during her stay she paid two visits to India, all the expenses having been borne by the husband.

(d) The respondent received reports from his English friends that the wife was leading a gay life in England. The wife returned to India after obtaining Ph. D. but she did not join the husband for about 4 months after her return and even when she came to Calcutta she used to stay at Uttarpara with her uncle. Her parents approved the wife living Independently and away from the husband pleading that she had obtained educational qualifications entitling her to live in her own way. The husband was, however, never agreeable to the wife's taking any job and wanted her to live with him like a respectable Hindu house-wife. Her parents, however, requested that the wife may be allowed for a short period to continue in her post as the lecturer in the University which she had taken in the meantime. The wife came back to the husband's family but soon picked up quarrels with the husband's parents as they did not like the extreme liberty in her movements.

(e) The husband shifted to 23. Lake Place leaving his parents at 80/D, Lansdown Road and there one Poonka alias G. S. Bhattacharjee, the younger brother of Indian Football Captain, K. Bhattacharjee, started making love to the wife. The husband went to Europe with the East Bengal Football Club and was away for some months. On his return to Calcutta, he came to know that the said Poonka misbehaved with his wife during his absence. In the meantime, Poonka went to England and started Bending presents and indecent love letters to the wife.

(f) in or about October -- November, 1955, the husband got a bunch of letters from the Almirh used by the wife and was staggered to find that the letters were filthy love letters written by Poonka and a Madrasi gentleman named Menon to the wife. As soon as the wife found that the letters had gone into the hands of the husband, she fled to her mother's house at Keyatala Road. The mother of the wife requested the husband to wait till the wife's father returned from Mandalay, On his return to Calcutta, the husband explained to him everything at the residence at Keyatala, where he had gone from his Lake Place residence. At that time the husband was suffering from high blood pressure and could only walk with the help of the stick which he carried. In the heated discussion that took place there the husband insisted that the wife should give up her service and go to Mandalay away from baneful influence. This was refused by the wife and the husband in his extreme mental and physical exhaustion, raised his stick in protest which unfortunately touched the father-in-law lightly. Local people immediately gathered inside the house and beat him and handed him over to the police.

(g) Since October, 1954, the wife has deserted the husband and has not returned to him. The husband denied the allegations made in the petition as vile and false. He denied that he was cold and indifferent to her and also denied that he suffered from any sexual abnormality and perversity. All the allegations of the wife about her suffering agony, frustration, all kinds of alleged rude conduct of the respondent or of the denial of the company by him while living with her are denied as untrue. The husband also complained that on her return from England she did not agree to come to him and there was no occasion for physical violence or rude behaviour by him as alleged. The husband further stated that he never deserted the wife nor ever intended to desert her. He again never denied his company to the wife nor bore any hatred or abhorrence for her. The husband contended that in November, 1954, or thereabout the wife deserted the husband for her misconduct which was thoroughly exposed when letters came to the hand of the husband as stated above and it was wholly incorrect to say that the wife deserted the husband for any mental or physical torture. The allegations of physical violence made by the husband on the wife and on her father and sister at Keyatala house are denied.

5. On the above pleadings, the following issues were framed:--

1. Is the suit maintainable in the present form?

2. Had the respondent actually deserted the petitioner without cause for more than 3 years before the presentation of this petition?

3. Is the respondent guilty of cruelty towards the petitioner?

4. Is the respondent guilty of sodomy since the solemnisation of the marriage?

5. What relief, if any is the petitioner entitled to?

6. The parties went to trial before the District Judge, Fifth Additional Court, Alipore and during trial, the wife examined her father Dr. Hem Chandra Choudhury on commission, as also Dr. P. Saha, a medical practitioner, Sudhir Chandra Das, Police Officer, Tollygunge P.S., Samarendra Nath Das, an Officer of Alipore Police Hospital, her friend Suhasi and herself. On the side of the husband. S.K. Chatterjee of Agra Hotel. Mahindra Nath Datta Roy, Secretary of Football Association, Satya Ranjan Datta, a Medical Practitioner, P. K. Sen, then Civil Defence Controller, Renu Nandi, cousin (mastulu sister) of the husband, Jnan Sankar Sen Gupta, Advocate and the husband himself were examined. Documentary evidences adduced by the wife were the G.D, entries in the Police Case Hospital Register while the husband produced the G. S. entries as also register of the Agra Hotel and letters written from the wife to the husband, letters from Poonka and Menon to the wife as also other letters.

7. The learned Judge, on a consideration of the materials on record found that there was no clear averment nor any evidence to substantiate that the husband was guilty of sodomy since the solemnisation of marriage. The issue No. 5 was accordingly decided against the wife. As to the issue on cruelty, the learned Judge found that the husband had no normal sexual relationship with the wife. It was found that the wife had no sexual Intercourse with the husband until about middle of 1947 and from after January 1948 in spite of her desire for his company. Further there was no convincing and just reason for the husband to withhold his marital company from the wife and not to have sexual relationship over prolonged periods and such refusal amounted to legal cruelty entitling the wife to a decree for divorce. The husband had been cold and indifferent to the wife all through and occasionally beat her and lastly assaulted her at the Keyatala house. On a consideration of the totality of circumstances, it was found that the husband since the marriage, had treated the wife with cruelty, physical and mental, entitling the wife to a decree for divorce.

8. The learned Judge also found that the husband, by his persistent refusal to give marital company to the wife and his cold and indifferent attitude to her, compelled the wife to withdraw from the matrimonial home which she did in October/November, 1954. Such conduct on the part of the husband constituted constructive desertion and no attempt Was made by him to bring her back and resume the normal married life thereby terminating desertion. The learned Judge overruled the contentions of the husband that the wife fled away when her conduct and character were revealed by the discovery of the letters, which according to written statement and evidence came to light long after in November 1955.

9. The learned Judge further found that there was no collusion or connivance between the parties nor any unnecessary or improper delay in institution of the proceeding, as the wife had to wait for sometime for the marriage of her sister before she could initiate the proceedings. Accordingly by his judgment and decree dated July 13, 1963, the suit was decreed dissolving the marriage. From the said decree the husband has preferred this appeal.

10. Mr. B. K. Ghosh, the learned counsel appearing for the appellant husband, has contended, with great emphasis, that on the application by the wife for a decree of divorce, the Court should not have granted the relief in view of the unnecessary and improper delay in instituting the proceeding. The Special Marriage Act 1954, hereinafter referred to as the said Act, while repealing the Special Marriage Act, 1872, (Act III of 1872) provides, that notwithstanding such repeal, the marriage solemnised under the earlier Act, shall be deemed to have been solemnised under this Act. Accordingly the present proceeding initiated by the wife for a decree for divorce, is to be governed by the provisions under the said Act. Section 34 of the said Act provides:--

'34. Duty of Court in passing decrees.

(1) in any proceeding under Chapter V (Restitution of conjugal rights and judicial separation) or Chapter VI, (Nullity of marriage and divorce) whether defended or not, if the Court is satisfied that,--

(a) any of the grounds for granting relief exists; and

XX XX XX

XX XX XX

(f) there is no other legal ground why the relief should not be granted; then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.'

11. In support of his contentions, Mr. Ghosh relied on the decision in King (husband) v. King (wife) : AIR1930Cal418 , where Costello J. quoted the dictum of Lord Stowell in Mortimer v. Mortimer, (1820) 2 Hag Con 310 that

'the Court will be indisposed to relieve a party who appears to have slumbered in sufficient comfort ......... and it will be inclined to infer either insincerity in the complaint, or an acquiescence in the injury whether real or supposed or a condonation of it.'

It is observed that the matrimonial jurisdiction of the Court is intended to afford relief to a husband or to a wife who feels that he or she has been grievously wronged by the other party and therefore desires to have the marriage dissolved. Further, the Court is not to be used merely as an engine for enabling a husband or a wife to retaliate on the other by reason of some injury which has been done outside the matter of violation of conjugal rights of the parties as such. In : AIR1930Cal418 (supra), this Court declined to grant the relief claimed, holding that the question of delay is always a matter of discretion of the Court, and, as the inaction on the part of the husband shows not that he was insincere in his complaint in the sense of not believing that his wife had committed adultery, but because there was an acquiescence by him in the injury which he knew he had suffered, the Court ought not to exercise the discretion in favour of the husband. Though the adultery was discovered by the husband on June 17, 1926, the husband was finally aroused the (sic) action when the wife removed certain articles of furniture, and for the first time publicly made a charge against the wife as having committed adultery by institution of proceedings in 1928 under the Indian Divorce Act, which, as already indicated were accordingly dismissed.

12. Mr. Ghosh also relied on the decision in Llewellyn v. Llewellyn, 1955-1 WLR 480, where the Court of Appeal affirmed the order dismissing the application for divorce by wife on the charge of cruelty on the sole ground of delay. It was found that the husband was guilty of cruelty and assaulted the wife in 1946, 1947 and 1951, and after June 1951, the husband had done nothing which in any way amounted to cruelty. During the period from June 1951 to January 1953, when she left, parties remained living together, the wife did not condone her husband's cruelty, though he pleaded with her to forgive him, but instead acted in an objectionable way and was hostile to him. In October 1953, the wife petitioned for divorce on ground of cruelty. The Court of appeal in affirming the trial Court's order dismissing the petition observed that the Court is not to be used as a place to which people can come for redress just when it suits them, and if it is found that a weapon is being held in reserve over the head of the spouse who is affected, the Court is entitled in the exercise of its discretion to refuse to accede to the prayer of the petition. Denning L. J. concurring observed:--

'If the husband repents of his wrong-doing and seeks forgiveness, as he has done here, the wife cannot stay in the house and refuse to forgive him, and all the while hold the past over his head, ready to strike with divorce whenever it suits her. She cannot play fast and loose with marriage in that way.'

The principle in Boulting v. Boulting, (1864) 3 Sw & T 329 was quoted with approval--

'The petitioner must feel and suffer under the wrong of which the complaint is made, and the Court must be satisfied that the remedy is sought as a genuine relief from the pressure of that grievance.'

Accordingly it could not be said that the wife, when she left the house still suffered under the grievance of 18 months before.

13. On the above authorities Mr. Ghosh contended that it is the duty of the Court, to grant the relief prayed for, if only it is satisfied but not otherwise, that there has not been any unnecessary or improper delay in instituting the proceedings. In view of the statutory provision, it is not of much consequence that the objection on the ground of delay was not specifically taken by the husband nor was any issue framed on the said ground of delay. The marriage of the wife's sister which was taken as a plea to explain the delay took place in 1956 and according to her, the desertion commenced from 1952 onwards, and in October 1954, she left husband's residence, the statutory period of desertion being three years. More, according to the wife, the husband had been persistently cruel since the marriage, and apart from the physical violence, ending lastly with the unfortunate incident of May 16, 1955, she had no company of the husband since January 1948. This unnecessary and improper delay has not been explained at all by the wife, and accordingly, the learned Judge should have dismissed the application in limine, on the ground of unnecessary and improper delay, indicating that she had no genuine grievance and her complaint was insincere.

14. Mrs. Jyotirmoyee Nag, the learned counsel appearing for the wife, has disputed the above contentions and has submitted that there had been no unnecessary and improper delay in institution of the proceeding by the wife. After her return from England in January 1952, the wife returned to the husband's place at Lake Place where she resided till October, 1954, and during this period, the husband did not misbehave with the wife though they had no relationship as husband and wife each having his or her own way of life. In May, 1955, the father of the wife came down to Calcutta and on May 16, 1955, he proceeded to the house of the husband with a view to coming to some sort of understanding about the future course of life of the parties. The attempt however ended in disaster, wrecking their marital life and on and from that day, the rupture was complete and beyond all chances of retrieval. At about the time, the younger sister of the wife was not still married and the wife, as she stated in her evidence, could not institute the proceeding earlier and the sister was married in 1956. Since then there has not been any unnecessary or improper delay the proceedings being instituted on October 3, 1958, if it is considered that the attitude of woman, particularly of our society, is rather to endure and suffer than to rush in Court and be the topic of a public scandal.

15. Mrs. Nag referred to the decision in G (the husband) v. M (the wife), (1885) 10 AC 171, where Fitzgerald L. J. made the following observations:--

'It is said that the pursuer ought sooner to have instituted the suit. I ventured to observe in the course of the case, and I repeat it now, that there is not one of us who cannot recall to memory the experience of some case in which a woman submitted to the worst of treatment, treatment degrading and humiliating, and allowed it to continue rather than permit her name to become the subject of a public scandal. And when we add to this that the lady in question had two sisters, young and unmarried, who would necessarily be implicated in any disclosure as to her character, that would greatly strengthen her motives for silence, and probably she would have submitted to much more if she had not been driven to her present course (action for nullity of marriage) by the institution of the action for divorce.'

Mrs. Nag also relied on the decision in Moreno (Husband) v. Moreno (Wife), AIR 1920 Cal 439, where it was held by this Court that delay will generally be excused if it is really due to poverty. Reliance was also placed in the decision in Becker v. Becker, 1966-1 WLR 423 where a delay of fifteen years after desertion in the institution of the proceedings was not considered as a bar when the parties lived far away and the marriage was as dead as could be. Denning M. R. quoted with approval the observations of Hodson L. J. in Crump v. Crump in C. A. No. 69 of 1957 (unreported):

'In dealing with the question of desertion it seems to me entirely different considerations apply and the fact that a person does not, immediately the three years lapses, take proceedings for divorce is not of itself a matter calling for adverse criticism at all. In fact one would regard it rather from the opposite point of view. It would in many cases, and perhaps in most cases, be praiseworthy if a person who had been deserted by their spouse did not at the first possible moment when the law allowed it petition for divorce. One knows in a great many cases such spouses endure with patient hope for many years before taking advantage of the right which is now available to them.'

In Adelaide Mande Tobias v. William Albert Tobias, : AIR1968Cal133 , a delay of 26 years in the institution of proceeding by the wife after desertion was not considered as a bar to the relief of divorce as the Court accepted the wife's explanation that she did not consider it wise to have the divorce until the children were brought up, educated and settled.

16. The delay to be a bar to relief must be unnecessary and improper in the circumstances of the case. In the present case the wife has stated candidly that her younger sister was still unmarried, when the final rupture took place on May 16, 1955. It was natural for her therefore to wait until the sister was married and settled in her new family, the marriage having taken place in 1956. And certainly to get settled takes time. Further the natural reluctance of the wife to be the subject of public scandal rather than endure the agony, the honour of the family, and the status of the divorced wife as unwanted woman in our society all these considerations keep away the wife from rushing to Court for relief of divorce and other reliefs to which she may be otherwise entitled in law. We also do not find here a wife acquiescing in the marital offences of the husband or taking from the husband any advantage of her position as the injured spouse or retaliating for some other injury caused by the husband. On the contrary, we find here a wife, who after prolonged years of the miserable life of a wrecked marriage, simply wants the freedom from a husband who, according to her, had blasted her life. We are convinced that there is no lack of sincerity in the complaint of the wife and that her suffering of an unfruitful and painful married life is genuine. In this background and looking at the marriage which is already dead, a delay for a period of about 21 months (January 1957 to September 1958) in our mind, is of no consequence, and is neither unnecessary nor improper when she was going to take, of her own, the most fateful decision in her life.

17. Mr. Ghosh in course of his submissions was candid enough to admit that the matrimonial home had been irretrievably broken down and that there is no meaning in the parties giving out further as a married couple. None the less, the husband is not willing to accept the position that the marriage has been wrecked for reasons given by the wife end the husband further is not willing to leave the Court room with such ignominy hanging over him. Mr. Ghosh submitted that under Section 35 of the said Act, his client is entitled to get the same relief against the wife as if he had presented a petition seeking such relief. Mr. Ghosh contended that his client's written statement contains ample and sufficient allegations corroborated by legal testimony to grant him a decree for divorce on the wife's adultery with several persons, and, no less on the grounds of her cruelty and desertion.

18. Mrs. Nag has opposed the above contentions of Mr. Ghosh and has further contended, apart from merits, that under Section 41 of the said Act, this Court has framed the rules of procedure, known as the Special Marriage Act (Calcutta High Court) Rules 1955. The said rules have been incorporated in the Civil Rules & Orders. Volume I, as Rule 340-A. Under Sub-rule (18), it is provided that in a proceeding for divorce, if the respondent asks for relief under Section 35 of the said Act, the answer shall contain particulars of adultery, cruelty or desertion, as if it were a petition mutatis mutandis. Sub-rule (19) again provides for an opportunity to the petitioner who may file a reply within 14 days from the filing of the answer or such extended time as may be allowed by the Court. Further, If the husband alleges adultery by the petitioner, he shall have to give the name address and description of the alleged adulterer (vide Rules 20 and 21). In such case, a writ of summons, to which shall be annexed a true copy of the answer, shall be served on the alleged adulterer in the same manner as a summons of a petition for divorce to be served on the respondent who is to be impleaded as 'corespondent' and such adulterer may file an answer to that of the respondent (Rule 22).

19. It is obvious that in his written statement the husband did not ask for relief under Section 35 of the said Act and accordingly the wife was not called upon to give her reply to the said allegations made in the written statement. There was no application nor any proceedings taken before the learned Judge for relief under Section 35 of the said Act and it is too late in the day for Mr. Ghosh now to come and pray before us. In this appeal, the relief to which his client, the husband, would have been entitled if he had presented a petition seeking the relief.

20. Before we enter into the merits of the appeal, we shall consider the position in law relating to cruelty and desertion as matrimonial offences. The wife in the connected proceeding has applied for divorce on the ground that the respondent has deserted the petitioner without cause for a period of over three years immediately preceding presentation of the petition and also has since the solemnisation of marriage treated the petitioner with cruelty. The relevant provisions of the Special Marriage Act, 1954, are as follows:--

'Section 27. Divorce. Subject to the provisions of this Act and the Rules made thereunder, a petition for divorce may be presented to the District Court either by the husband or by the wife on the ground that the respondent--

(a) --

(b) has deserted the petitioner without cause for a period of at least 3 years immediately preceding the presentation of the petition

(c) --

(d) has, since the solemnisation of marriage treated the petitioner with cruelty.

* * *

Section 34. Duty of Court in passing decrees.

(1) in any proceeding under Chapter V (restitution of conjugal rights and judicial separation) or Chapter VI (nullity of marriage and divorce) whether defended or not if the Court is satisfied--

(a) any of the grounds for granting relief exists and

(b) --

(c) --

(d) the petition is not presented or prosecuted in collusion with the respondent and

(e) there has not been any unnecessary or improper delay in instituting the proceeding, and

(f) there is no other legal ground why the relief should not be granted; then, and in such case, but not otherwise, the Court shall decree such relief accordingly.'

21. We are not concerned with the other ground of divorce as the learned Judge has decreed the suit on these two grounds only rejecting the other ground alleged by the wife.

22. As was approvingly quoted by the Supreme Court in Bipin Chandra v. Prabhavati, : [1956]1SCR838 the legal position is summarised in Halsbury's Laws of England. Third Edition, Volume XII in the following words:

'453. Meaning of desertion. In its essence desertion means the intentionally permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable, cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at denning desertion there being no general principle applicable to all cases.

Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be, termed, for short, 'the home'...... The person who actually withdraws from cohabitation is not necessarily the deserting party.........

454. Duration of desertion. The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition or where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding on the cause of action of desertion is not complete but inchoate until the suit is constituted. Desertion is a continuing offence.

456, Elements of desertion; factum and animus. For the act of desertion to exist there must be both the factum or physical separation, and the animus deserendi or intention to desert. All the necessary ingredients of desertion must continue throughout the statutory period.

A de facto separation may take place without there being an animus deserendi, as where there is a separation by mutual consent or a compulsory separation, but if that animus supervenes, desertion will begin from that moment, unless there is consent to the separation by the other spouse. On the other hand there may be animus deserendi without separation, as whether the parties live not as two households under the same roof but as one household. ... ... ... ... ... .... ... ... ...

459. Doctrine of constructive desertion. Desertion is not to be tested by merely ascertaining which party left the matrimonial home first If one spouse is forced by the conduct of other to leave home, it may be that the spouse responsible for the driving out is guilty of desertion. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves his wife and the case of a man which compels his wife by his conduct, with the same Intention, to leave him.

23. In : [1956]1SCR838 (supra), the Supreme Court also laid down that in any proceedings for divorce, the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. Further though corroboration is not regarded as an absolute rule of law, the Courts insist upon corroborative evidence, as a matter of precaution, unless its absence is accounted for to the satisfaction of the Court.

24. The other ground on which the wife seeks divorce is for cruelty and as already seen cruelty has not been defined in the said Act. In Halsbury's Laws of England (ibid), cruelty is defined as follows:--

'514. Meaning of cruelty. The legal conception of cruelty, which is not denned by statute, is generally described as conduct of such character as to have caused danger to life, limb, or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger.

516. Considerations which in general are material. The general rule in, all question of cruelty is that the whole matrimonial relations must be considered, that rule is of special value when the cruelty consists not of violent acts but of Injurious reproaches, complaints accusations or taunts.'

25. In Rayden 'On Divorce'. Tenth Edition at page 148. it is laid down:

'To obtain a divorce on the ground of cruelty it must be proved that one partner in the marriage, however mindless of the consequences, has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in a case of cruelty, from the petitioner's side ought this petitioner to be called on to endure the conduct; from the respondent's side, was this conduct excusable?'

26. Further 'Assuming that Injury or apprehended injury to health is found, the Court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view after a consideration of any excuse which this respondent might have in the circumstances, the conduct is such that the petitioner ought not to be called upon to endure it.'

27. For the purpose of convenience, the matrimonial life of the parties may be divided in four distinct periods. We shall consider each phase of the matrimonial life of the couple as borne out by the evidence. The first phase is from January 21, 1945, (date of solemnisation of marriage) to September 5, 1945. During this period, the wife stayed at the Lansdown Road, residence of the husband and appeared in her M. A. examination in August 1945. The husband left for England for his business in June 1945 and returned on September 5, 1945. The evidence of the wife is that immediately after marriage she found the husband unusually cold, indifferent and rude to her. He was unsympathetic and had no understanding and if she asked the reasons of such behaviour, he would use to be rude to her and in later years started beating her. The wife complained that she was not treated by the husband as his wife. She also did not get his company as he was too busy with his other affairs. Even during this period there was no sexual relationship between the parties and when she invited his company, he said that as examination was ahead, there should be no sexual relationship. Dr. Hem Chandra Choudhury, the father of the wife and her witness in this case corroborated that her daughter, the wife, had told him, at about the time, of the husband's cold and indifferent attitude to her, her failure to have his company and also of the non-consummation of the marriage.

28. The husband in his evidence stated that the wife was found to be cold from the very beginning. He generally denied the other allegations made by the wife while admitting that the feelings were strained for first five months. In his written statement, the husband stated that during January to June, 1945, they cohabited but voluntarily restrained themselves in view of the wife's examination.

29. On a consideration of the evidence, we have no doubt that the relationship between the parties was far from normal and that the husband denied his company to the wife. We have also no hesitation in holding that there was no sexual intercourse between the parties during the period even though both of them were then young. Though the wife was keen for the husband's company the husband kept her away on pretexts. This indicates the husband's utter callousness and indifference to the wife as has been alleged by her.

30. The second phase of the marriage life covers the period from September 5, 1945 to August 19, 1947. The husband according to him returned from his foreign tour on or about September 5, 1945, and the wife left for Lahore, where her parents resided, on September 6, 1945. According to the wife, however, the husband returned in August, 1945, and, after two to three weeks of his return, she left for Lahore, returning in December 1945. Even during this time she asked for his company and the husband was as cold and indifferent as before and used to abuse the wife saying that she was too demanding. She, however, returned from Lahore in December, 1945, and stayed at the husband's Lansdown Road residence. During this period, the husband, according to wife's evidence denied her company on the plea of his being busy with his club. Even he could not tolerate her if she was present at the time of his lunch and would be annoyed and beat her. He would not return home from his office after office hours but used to go straight to his club and return home at night at 10 or 10-30 p.m. and then he used to go to his mother and talked to her. If the wife wanted the husband to come to her, he would beat her, his mother taking the side of the husband. The husband used to say to wife that she was so ugly that he felt ashamed to take her with him. The wife, thus, had no sleep in day or at night and during the period from December, 1945 to March, 1947, when she left for Lahore, there was again no sexual relationship between the parties. In October/November, 1946, the husband left for England and returned on January 12, 1947, and on the day he returned, according to the husband, she left for Lahore. It appears that the father of the wife was transferred to Jaipur and at his request the husband came in August, 1947, to Jaipur in the Hotel where the wife's parents were then putting up. On the two nights the husband spent there, there was no sexual intercourse and the husband did not behave properly with her, on the contrary, on the first night as she was persuaded to go to him, he was rude, and hit her and the wife came out weeping after some time, as it was impossible for her to stay with him. According to the wife, her father impressed upon her that her place was at Calcutta with the husband and accordingly she returned to Calcutta with her husband to stay with him. According to the husband as stated in his written statement, during his absence in foreign lands in October, 1946, to January, 1947, the wife became very intimate with one Himangshu, her class-mate, and Himangshu, at that time went to Jaipur at the call of the wife. The husband's case about this sojourn is that he was taken to Jaipur by the father of the wife and at Jaipur the wife promised to be a dutiful wife giving up her old habits. The husband forgave and accepted the wife again and they came to Delhi at the Agra Hotel and they went on sight-seeing while at Kutub Minar the wife confessed that she wanted to take away her life as she felt guilty in her conscience. Such confession on her part melted the heart of the husband and they returned to Agra Hotel and enjoyed each other's company and cohabited each other. They again left Delhi for Jaipur and on August 16, 1947, they left Jaipur reaching Calcutta on August 19, 1947. The alleged assurance by the wife at Jaipur and her confession at Delhi and their cohabitation in Agra Hotel, Delhi do not find any place, however, in the evidence of the husband and we are unable to accept the same as true. There is also no evidence about the alleged bath-room incident or of an alleged attempt of suicide by the wife on August 14, 1947, at Jaipur which is also not stated by the husband in his evidence and we are unable to accept the same as true. The relationship of the parties during the period is also evidenced by some correspondence before the parties met at Jaipur, in his letter Ext. E dated July 6, 1947, the husband complained about the movement of the wife and mixing with Himangshu. In her letter Ext. E (19) dated July 16, 1947, the wife informed the husband that, Himangshu or no Himangshu, they could not carry on life as they were going on and that it was absolutely an abnormal sort of life to her. It was necessary for some sort of settlement to be reached and about some misunderstanding over her behaviour and action, she had offered to clear up everything and do the penance of her wrongs by coming over to Calcutta in spite of the unwelcome staring at her face. The offer was not accepted and the wife also complained in that letter that the husband always shirked his responsibilities and duties as a husband and did not give the wife the right to call herself as the wife of the husband and be proud of him. His attitude to her had been cold and indifferent, he being too busy with his plans of the future and works to devote any time to the wife and the family.

31. In the context of the evidence, oral and documentary, as stated above it again seems to us plain that the husband was as indifferent and cold to the wife as before. We have no doubt in our mind that the relationship between the parties was most abnormal and the reason for such relationship was due to the husband whose marital lapses caused the bitter and unfortunate situation. We have also a letter from the mother of the husband to the wife dated August 5, 1947, Exhibit E(8) where the mother complained about the wife's relationship with Himangshu. It may be mentioned that the husband in his evidence said that he had condoned the wife's conduct hi relation to Himangshu and in fact, there is nothing Incriminating in the conduct of the wife in so far as Himangshu is concerned, and to the husband, the intrusion of Himangshu in the scene did not have anything to do with the husband's relation with the wife. We also find in the letter Exhibit E(8) that the husband has not been performing his duties to the wife including sexual intercourse. We therefore find that the husband continued in his attitude of apathy and indifference to the wife and did not cohabit with her at all during this period.

32. The third phase is from August 20, 1947 to August 1948. The wife stated that after return to Calcutta from Jaipur the coldness persisted. Only for a short period they had the relationship and also had sexual intercourse for four or five times within one month during December, 1947/January, 1948, and there was noattempt for sexual intercourse after that As the husband was proceeding in Olvmpics in June/July, 1948, he desired that the wife should go to England and resume her studies as she should be sent away from Himangshu. It was obvious that Himangshu and not the wife was responsible for creating disturbances by telephone calls. In her letter to her father Exhibit E(2) dated October 3, 1947, the wife was telling him that the husband felt that the wife had been the cause of the detriment of his social status in Calcutta and he would be able to put up a bold face against the social and public scandal if she would make up her lack of beauty with her education, so that she could be presented in the society. In this, according to the wife, the husband was trying to get rid of the wife's company but there was no way out of her problem. Even during this period, in May 1948, when the father of the wife was on a holiday at the Lansdown Road residence, the husband continued beating and illtreatment of the wife in his presence, as testified by the wife and her father. She acknowledged that she went to United Kingdom on the initiative of the husband who introduced her to some persons in furtherance of her studies and bore part of the expenses. During her stay in England, she wrote several letters to the husband, the letters usual from a wife containing much warmth Exhibits E(3), E(4) and E(5), but none of these letters was replied to. It is obvious that the husband never desisted from illtreating the wife throughout the sojourn of the wife who had left for England in August, 1948.

33. The last phase of the marital life starts from the return of the wife in January 1952 from England, who stayed back to complete her course of study, and completed her Ph.D. and ends on May 16, 1955, the day of final rupture. After her return, she went straight to Jaipur but her father forced her to stay with the husband. Accordingly she stayed with the husband at the Lansdown Road residence and after August 1952, at the Lake Place Road residence of the husband. In July, 1952, the wife was appointed as lecturer in the Calcutta University but this was not liked by the husband. During this period according to her there was no relationship between the husband and the wife, each having his or her own way. There was no sexual relationship any more and the wife resigned to her frustrated marriage life. There was no physical torture, violence or mental shock to her. The wife began to feel that the husband had deserted her in his own house and under the same roof they became strangers. The wife could realize that the husband had developed a feeling of hatred and abhorrence for her and wanted her to deserthim and live elsewhere as he had deserted her in his own house. She was troubled by her feeling of loneliness and without having any companion and later on in April 1954 when her mother and sister came to reside in a rented room in the neighbourhood in Raja Basant Roy Road, she used to seek relief and solace from them. Thereafter a flat was taken at 51-M Keyatala Road, Calcutta in November 1954 and the wife left her husband's place at about this period for good. The father of the wife stated hi evidence that from May 1952 to November 1954, she was both mentally and physically broken.

34. The husband in his evidence stated that the wife willingly left his protection in November 1954 and she was not compelled to leave. Further, he did not refuse his company to the wife whenever she asked for it. It was his further evidence that she fled to her mother when towards end of 1955, the husband discovered a bunch of highly indecent letters written to her by her boy friends like Poonka and Manon. His further evidence was that he lived happily with her from August 1947 to till 1954. During the period of her stay in Lake Road house from August 1952 to November 1954, the husband had sexual intercourse with the wife on one or two occasions, and the wife was frigid.

35. Upon a consideration of the evidence as also the statements made by the wife in her petition for divorce, which under Section 32(2) of the said Act, we refer as evidence, we hold that the husband during this period also persisted in his attitude of utter indifference, callousness and apathy towards the wife and lived with the wife as strangers under the same roof. We are also satisfied that there was no sexual relationship between the parties during the period, due to the husband's antipathy to it. We are also inclined to accept the statement of the wife made in her petition that the husband developed an attitude of hatred and abhorrence to her. It is obvious that in the context of her suffering and loneliness of a frustrated married life, the husband created a situation in his house that it was impossible for the wife to stay there longer. The husband, thus forcing the wife by his conduct to leave the matrimonial home, became himself really guilty of desertion, even though it is the wife who had in fact deserted the house. The action on the part of the husband, is based, as the entire course of matrimonial life bears out, on his intention to repudiate the obligation of the marriage and the requisites of desertion in law, factum of desertion and animus diserendi were present in the case. As the statutory period of three years had passed away since November 1954 prior to the presentation of the petition for divorce in October 1958, without any attempt on the part of the husband to determine the desertion at any tune there is no legal bar or any other impediment or ground on the way of the wife having the relief she prays for.

36. Mr. Ghosh has contended with great emphasis that the real ground for leaving the matrimonial home was not the alleged acts of the husband, but it was the discovery of the bunch of indecent and despicable letters which came into the hands of the husband on opening an almirah exclusively used by the wife. Some of the letters which are Exhibits E(10), E(11). E(12), E(13), E(15), E(16). E(17). E(18), are undoubtedly highly Indecent and improper and indicate an amorous feeling of their writers for the wife and Mr. Ghosh wanted us to find an explanation there for the conduct of the husband. These letters are, however, only one-way traffic and there is no letter from the wife to the writers to indicate her amorous feelings for them. The one that is there, dated September 6, 1954, Ext E(10), written by her to Poonka, is simply a letter from a friend to a friend introduced to her by none else than her husband. To smell something erotic here or in the other letter, referred to above, on the part of the wife is impossible. And to infer adultery from this or even the Himangshu affair, put at its highest, upon the existing evidence is to subvert reason and common sense. Even a judicial personage must move with the times only to find that the latitude in the relations of sexes we see around us today is something which would have perhaps shocked our grandmothers, and possibly mother, to death. To judge therefore a matter as this of the mid-twentieth century in the light of the rigid conventions of the mid-Victorian era will be to misjudge the whole thing. Such a common-sense perspective apart, let it not be forgotten for a moment that a high standard of proof, not a mere balance of probability, is required to prove adultery, as held in Bastable v. Bastable. (1968) 1 WLR 1684. the decision of the House in Blyth v. Blyth. 1966 AC 643, notwithstanding, a decision which by three voices to two accepted the standard of balance of probability, but only about bars to relief: Condonation, connivance and the like, not about grounds for relief: adultery and the, like, as we took pains to point out in Sachindra Nath Chatterjee v. Smt. Nilima Chatterjee, A.F.O.D. No. 399 of 1965, in which we rendered judgment on 16-5-1969 (since reported in : AIR1970Cal38 ). And the law laid down by the Supreme Court --a law which finds us more than the law laid down by the House of Lords or the English Court of Appeal -- has uniformly been that every matrimonial 'offence' must be proved beyond reasonable doubt : [1956]1SCR838 , White v. White, : [1958]1SCR1410 , Lachman v. Meena, : [1964]4SCR331 , Mahendra v. Sushila, : [1964]7SCR267 . These letters, by themselves, therefore, do not prove as Indeed they cannot, that there was any illicit relationship between the writers of the letters and the wife nor that the feelings were ever reciprocated by the wife as was held with respect to such letters to the wife by the Supreme Court in Chandra Mohini v. Avinash Prasad, AIR 1967 SC 581. In any event, in the present proceedings, they appear us to be wholly irrelevant, as it is never and could not be the case of the husband nor his evidence that because of the lack of fidelity on the part of the wife even if indicated by the said letters, the husband kept himself away from the wife, became cruel to her and also deserted her repudiating the bonds of marriage.

37. As to the discovery of the said letters being the immediate cause of the desertion by the wife, there is a serious discrepancy about the dates, proclaiming the falsity of the cause asserted on behalf of the husband. It is said in paragraph 34 of the written statement, as also in the evidence of the husband that the letters were discovered towards the end of 1955. Even assuming that the letters were discovered in November 1954, as appears from paragraph 42 of the written statement, it is not the husband's evidence nor was it put to the wife that she left the husband's Lake Place house on the discovery of the said letters. We are, therefore, unable to accept the contention of Mr. Ghosh that she deserted the matrimonial home on account of the discovery of the letters, and hold that the wife left the husband's place on the grounds alleged by her which have been duly proved by legal testimony.

38. The last incident in the matrimonial life of the parties took place on May 16, 1955. The facts have been narrated by the wife in her petition and have been testified to by Dr. Hem Chandra Choudhury. He narrated that, on the morning of the fateful day, he went to the husband for making a final arrangement regarding the wife. On that, being highly enraged, and taking an umpire stick (a stick 3 feet long with a pointed spike at the bottom and a folded leather seat at the top), the husband dragged Dr. Choudhury to his Keyatala Lane house. The husband proceeded there even though he was told by Dr. Choudhury that the wife and her sister were to appear in B.T. examination on that 'ay, At the sitting room, abutting the road, he demanded the presence of the wife and she and her sister came inside the room. Then the husband gave her two alternatives: one to sue for divorce and the other togive up the job and to go with her father to Mandalay, as she would not be allowed to live in Calcutta. Both the proposals were unacceptable to the wife, as suing for divorce would mean a scandal and might be an, impediment for her sister's marriage, who was still unmarried, and the other proposal was impracticable as that would leave her without means of livelihood. At this the husband flew into a rage and struck the wife with the stick. The father stood up in protest and as the husband tried to strike him with the stick, the father raised his hand and received a stroke and thereafter he and the sister caught hold or the stick and there was a tussle. Then the husband gave slaps to the father and sister and twisted her hand also. The mother of the wife came into the room and cried aloud and the people of the locality came and forced down the husband to the chair. Thereafter the father took the daughters to the Loretto house for examination and the husband was taken, as it appears, to the Tollygunj Police Station.

39. Shorn of details, the incident was as stated above and in material particulars has been corroborated by the wife. The husband's version was that there was some altercation in Keyatala house and he never struck the wife there and in his written statement, he admitted that the discussion was heated, that he asked the wife to leave her job and to live at Mandalay. On the refusal of the offer by the wife, he in protest raised his stick which unfortunately touched the father lightly. In his evidence, he stated that his offer was, either live with the husband as a Hindu wife or go to Mandalay. But he never asked her to divorce him.

40. On a consideration of the evidence we have no doubt in our mind that the version of the incident as given by the wife and her father is the correct and true picture of the events that took place there and we reject the version of the husband as untrue. We also reject the husband's case made out in his evidence and not in his written statement that he made an offer to the wife to return to him and live as a Hindu wife. It is obvious that even at this stage, the husband failed to make any genuine attempt to terminate the desertion caused by him as has been found by us. The acts on the part of the husband also constitute the acts of utter cruelty and callousness and we shall deal with the same hereafter.

41. From the entire course of the matrimonial life, it is clear that the husband, since the early days of married life and throughout, was cold and indifferent to the wife, and soon he started beating her, off and on, as corroborated by the father Dr. Chaudhury, we have definite evidence of such assaults on the wife, atJaipur in August 1947, May 1948 and lastly on May 16, 1955, and we reject the husband's evidence that he never assaulted her. It is further in the wife's evidence that sexual intercourse on four or five occasions the couple had in December 1947 or January 1948, apart from the fact that the marriage held in January 1945 was not consummated even till September 1945. The husband lends assurance to such evidence by saying towards the close of his testimony that he had sexual Intercourse on one or two occasions during the period 1952-54, when they were living in their Lake Place residence. The wife's evidence also is that, during the whole period of their matrimonial life, she had always the desire for sexual intercourse and on many occasions even asked for the husband's company. The husband however, without reasonable cause, refused to have sexual intercourse and deprived her of the same. The wife, who says too that she had no sexual relationship with her husband between December 1945 and March 1947, suggested sexual debility as the reason, but the husband denied that he ever suffered from sexual debility. He charged her instead with frigidity, the husband's statement that he had normal sexual life with his wife is unworthy of credence and we reject the same as untrue. The wife's testimony on this aspect, as also the conduct of the husband to her, are amply corroborated by her father, to whom she confided, off and on, and, at about the time, her relations with her husband.

41-A. Cruelty, as a matrimonial offence, is to be determined by taking Into account the particular individuals concerned and the particular circumstances of the case, rather than by any objective standard, as was reiterated in Gollins v. Gollins, (1963) 2 All ER 966. It was further laid down that the cumulative conduct must be sufficiently weighty to say that from a reasonable person's point of view, after a consideration of any excuse which the respondent may have in the circumstances, that the conduct is such that the petitioner ought not to be called on to endure it and an intention by the respondent to mi are the other spouse is not necessary. In the instant case, the cumulative conduct of the husband to the wife, his coldness, apathy and indifference to her, his assaults on her off and on and at his pleasure, his refusal to have sexual intercourse with her--all throughout the period of the matrimonial life, and without any justifiable and reasonable cause and excuse, caused serious and deep impact and injury in her health and mind, leading her to desperation and almost on the verge of mental breakdown. In such gloomy and despondent life to which she was forced to live, she realized that her life was frustrated and she wasdestined to such misery and suffering. We have it from Dr. Choudhury that the wife was mentally and physically broken down during May 1952 to November 1954. Any further continuance of this miserable existence could reasonably be apprehended to cause further and serious injury in her health and mind. In this state of affairs, when there is no cause or excuse on the part of the husband for such reprehensible conduct, it is impossible from the reasonable man's point of view to call upon the wife to endure such treatment any longer. In agreement with the learned Judge, we hold that the wife has established that the husband has been guilty of cruelty to her and she is entitled in law to a decree of divorce.

42. Before passing, a word may be said about the refusal of the husband to have sexual intercourse with the wife. In Sheldon v. Sheldon, 1966 Probate 62, the wife was held entitled to the decree for divorce when the husband while sleeping with the wife had persistently, without the least excuse, refused her sexual intercourse for six years and, her health being broken, she could not be asked to endure it any longer. In this case also, the wife was persistently refused sexual intercourse without any reasonable excuse, ever since the solemnisation of marriage and practically throughout the period of marital life, causing depression and frustration in her mind and there was or could be no reason for calling her to endure it further. Even on this solitary ground of refusal to have sexual intercourse without reasonable excuse, the wife, in the circumstance of the case, is entitled, in our opinion, to a decree for divorce.

43. The last act of cruelty of the husband in the incident of May 16, 1955, is also grave and serious enough to cause a grave apprehension in the mind of every reasonable person that it will even be risky to take any further chance of reconciliation between the husband and the wife. The cruelly exhibited by the husband on that day, the assaults committed by him on the wife, her father and sister and the threatening and peremptory demands on the wife in the garb of his terms for reconciliation, all indicate the high temper of the husband and his fury on the wife. It is therefore obvious that it will be futile in the circumstances to maintain the bond of marriage and ask the wife to endure the married life when she also indicated her firm intention not to return to the husband's house and be subject to mental and physical torture in his hand.

44. In the view we have taken, in agreement with the learned Judge, we hold that the wife is entitled to a decree for divorce on the ground of cruelty anddesertion. The appeal accordingly fails and is dismissed, each party, in the circumstance bearing its own costs, in this appeal.

Bijayesh Mukherji, J.

45. I agree.


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