1. This is an appeal by the wife and it is directed against a decision of the learned Judge, 7th Bench, City Civil Court, Calcutta, allowing her husband's petition under Section 10 of the Hindu Marriage Act, 1955 praying for judicial separation. The parties were married on December 14, 1950 at Calcutta according to Hindu rites. In the petition the husband alleged that his wife is a bad tempered, quarrelsome and intolerant woman and that all his efforts to correct her ways have proved ineffective. On October 21, 1951 a daughter was born of this marriage. On or about April 24, 1952, it is alleged, a love letter written by her to one Sudhangshu Sekhar Chose was detected and she left thematrimonial home leaving the baby. She was later found in her father's house where she went on living for about 8 or 9 months. Thereafter through the intervention of Dr. D. P. Basil, a well known physician related to the parties, she was taken back by her husband. It is stated that before she returned to the matrimonial home she signed a document admitting her guilt. Her conduct however did not change according to the petitioner. She often abused him in filthy language and used to hurl things at any one who protested against her behaviour. On April 11, 1953 her father is alleged to have forcibly taken her and the child away with him though it is not stated why. About four years thereafter she wrote a letter to the petitioner's father apologizing for her conduct and requesting him to take her back. As his father wanted her to come back, the petitioner did not object and she returned sometime in February, 1958. The petitioner's case is that very soon she lapsed into her old habits. She used to go away to her father's place whenever she pleased and threaten the petitioner that she would divorce him. The situation reached a climax on the night of January 1, 1966 when she tried to throttle the petitioner in sleep. According to the petitioner, since the happening on January I, 1966 he began living in a separate room. In paragraph 10 of the petition the petitioner states that 'on 18-8-1966 the respondent finally deserted your petitioner and she is still residing in her father's residence at 15, Gopi Bose Lane, Calcutta-12'. Paragraph 11 of the petition states 'that due to continuous tortures by the respondent and her misdealing and ill-treatment through all these years have made your petitioner's life miserable and your petitioner could not pass a single day in peace and happiness. For constant worries and tension, your petitioner has been a victim of diabetes. The respondent treated your petitioner with such cruelly, that it caused reasonable apprehension in his mind that it would be harmful and injurious for the petitioner to live with the respondent any more.' It would seem from the statements made in paragraphs 10 and 11 of the petition that the petitioner sought relief on two grounds, desertion and cruelty by the wife. It appears from the judgment of the Court below that the case of desertion was not pressed at the hearing and the learned Judge rightly held that in any event the ground was not available to the petitioner. Under Section 10 of the Hindu Marriage Act, desertion in order to be a ground for judicial separation must be for a continuous period of not less than two years immediately preceding the presentation of the petition. It is alleged that the wife deserted the petitioner on August 18, 1966 and this petition was filed on March 15, 1967 which is short of the statutory period by about five months.
2. Thus the only question for decision is whether on the evidence on recordthe ground of cruelty can be said to have been established. I have summarised the allegations made in the petition on this point. The petitioner examined in all six witnesses including himself. Deposing as P. W. 1 he stated that he found the alleged love letter (Ext. 1) from a shoe box. On cross-examination however he admitted that exhibit 1 did not contain anything to show that it was a love letter. He also referred to the agreement reached between him and his wife at the intervention of Dr. D. P. Basu, the terms of which were put in writing. The terms are referred to in a letter (Ext. 1g) addressed presumably to the petitioner's father by Dr. D. P. Basu. The terms appear to be as follows :--
'(1) I Sm. Aloka De went away alone on foot from 'Harinibas' [name of the petitioner's house] in the night of 22nd April, 1952 leaving my daughter and without informing any one. I am sorry for that and shall not do so again in future.
(2) If I have to write letter to any one I shall write it on a post card which my husband will have full right to see.
(3) The allegations I made previously that my father-in-law, mother-in-law and my husband beat me are wholly false and for that I am sorry.'
There was a further assurance by the wife that she would not act again in a similar fashion. In his evidence the petitioner filled in the gap in the petition as to why his father-in-law took away his wife and the child on April 11, 1953. He stated that on that day his wife abused him filthily and then summoned her father on the telephone and left with him taking the child with her. He proved exhibit 1 (a), a letter, written by his wife to his father in which she apologized for 'uttering evil words' and asked her father-in-law to forgive her out of his own goodness. The petitioner said that he took her back on or about 18th July, 1958 though the date mentioned in the petition is sometime in February, 1958. In his evidence the petitioner repeated that she tried to throttle him on the night of January 1, 1966 and that he began sleeping in a separate room since then. She left him finally on August 18, 1966. According to the petitioner, before leaving, his wife left a signed note (Ext. 2) which is as follows :-- 'Received all my articles to my satisfaction. My jewelleries are with me'. The petitioner stated that his wife's conduct made severe impact on his body and mind that caused him to suffer from diabetes since 1955 and that he was afraid to live with her. In answer to a question put by the Court he denied that exhibit 2 was written at his dictation.
3. Petitioner's elder sister Renukana Saha deposed as P. W. 2. Her evidence is that the appellant was rude to the petitioner's parents and used to quarrel with the petitioner and throw things at him. Thewitness stated that 'there was trouble' on January i, 1966 since when the petitioner and his wife used to sleep in different rooms. This witness did not refer to any specific act of cruelty during the period between 18th July, 1958 and 18th August, 1966 except the incident on January 1, 1966.
4. P. W. 3 Amiya De is petitioner's mother. Her evidence is that the appellant 'behaved very badly' with her, used to abuse them filthily and 'throw articles' at the petitioner. She denied the suggestion put to her in cross-examination that she tortured and ill-treated her daughter-in-law. She also denied the suggestion that the appellant's father took her away because she was ill. P. W. 3 did not refer to the alleged incident on the night of January 1, 1966 and did not speak of any act of cruelty by her daughter-in-law during the last period she had been with the petitioner.
5. P. W. 4 Durga Charan De is petitioner's uncle. He went to the house of the appellant's father and found her there after the petitioner had informed him on April 24, 1952 that the appellant was missing from the house. He said that he had heard exchange of words between the appellant and her father-in-law but he did not refer to any particular date when he happened to hear such altercations.
6. A maid-servant was also examined to say that the appellant used to quarrel with the petitioner and did not treat the petitioner well.
7. The last witness for the petitioner, P. W. 6. is the petitioner's brother-in-law, Dr. Probhat Chandra Sinha. His evidence is that on clinical test the petitioner was found to be suffering from diabetes some time in 1960. He stated further that some time in 1964 or 1965 he saw the appellant 'throwing away a cup of tea' and that on another occasion he heard her saying that she would go out and come back whenever she pleased and none could stop her.
8. The appellant in her written statement stated that the letter, Ext. 1, was not a love letter, that Sudhangshu Bose to whom it was addressed was her 'near relation' and that she did not run away after the letter was found but was driven out of the house. According to her the petitioner and his parents used to treat her very badly. She did not even get proper food. Even after a settlement was reached through the intervention of Dr. D. P. Basu, she continued to receive the same sort of treatment and on April 11, 1953 she was again driven out with her child. She stated further that the petitioner and his father persuaded her to write the letter of apology, exhibit l(a), and she wrote it to purchase peace. According to her, she was often made to write something or other at the dictation of the petitioner and his mother. She denied the allegation that she tried to throttle the petitioner while he was asleep as absolutely false and stated that even afterJanuary 1, 1966 they continued living in the same room. Her case is that the petitioner and his parents used to torture her in various ways and their motive was to extract money from her father. According to her, the petitioner's parents had realised from her father a substantial amount as dowry.
9. In her evidence she elaborated the case made in the written statement. According to her, about a year after her marriage her husband and his parents began ill-treating her. On occasions she had to go without food. She states that following a quarrel between her and the petitioner's parents, her father was summoned over the telephone and she and her daughter were sent away with her father. She did not mention any date but probably she was referring to the incident on April 11, 1953. According to her, following some altercations with her mother-in-law, her father was again sent for and she was finally sent away with him. She says that she was made to write the note exhibit 2, by her husband though she did not get back most of her clothes and jewellery. She denied the alleged incident on January 1, 1966 and maintained that even after that date she and her husband shared the same bed. She stated that for the sake of her daughter she was agreeable to come back to her husband. On cross-examination she stated that the letter, Ext. 1, was written to a cousin of her mother. She explained the letter by saying that she intended to apply for a job but did not wish to disclose it to her husband. Referring to the letter, Ext. 1a, she said that it was written at the direction of her husband but it was sent by post. She admitted that after her marriage she passed the Matriculation Examination and read up to the Fourth Year B. A. Class and that her husband paid her educational expenses. She also admitted having received from her husband Rs. 100/- a month so long she stayed at her father's place. She denied the suggestion that from 1958 to 1966 her behaviour with the petitioner and his parents became intolerable. It is to be noted that she was not cross-examined on her statement that she did not try to throttle the petitioner on January 1, 1966.
10. The only other witness examined on her side was her father who supported her case. The appellant and her father both stated in their evidence that the petitioner's parents realised a large amount as dowry.
11. The trial Court found that the case of the wife that her husband and his parents used to torture her to extract money from her father was not believable. At the time the parties were married, her father used to get a salary of Rs. 400/- a month, and we agree that it does not seem probable that a man with that income would be in a position to pay over Rs. 10,000/- as dowry as claimed or could be considered a likely subject for exploitation. The admitted fact that she hadbeen receiving Rs. 100/- a month during the time she had been living with her parents before she finally left the matrimonial home in 1966, also indicates that this allegation is without any basis. The learned Judge was of the view that the appellant before us being the wife of an only son, it was not believable that she would not be given proper food or clothes as alleged by her. We do not think that any such observation is justified before all the facts of the case are considered. Relations between the appellant and her parents-in-law had admittedly become strained; the facts that she was the daughter of their only son cannot by itself justify the conclusion that she must be responsible for all that happened without reference to the other circumstances appearing in evidence.
12. The learned Judge held that the letter, Ext. 1, was not a love letter. He further found that the letter, Ext. 1g, showed that the wife's allegations against her husband and his parents were false and the letter, Ext. 1(a), proved that she was guilty of bad behaviour to her father-in-law. The learned Judge also held that the three letters, exhibits A(1), A(2) and A(3), written to the appellant's father by the father of the petitioner in which it is alleged that she abused her husband's parents in vulgar language, proved that she was guilty of mental cruelty towards her husband. The learned Judge came to the conclusion that the various acts and conduct of the appellant 'taken together as a whole' showed that 'she has inflicted mental cruelty on the petitioner to such an extent that it will be harmful for him to live with her any more' and passed a decree for judicial separation.
13. The married life of the partiesbefore us falls into three distinct periods. From the marriage till April 24, 1952 when the wife left the matrimonial home following the discovery of the letter, Ext. 1, constitutes the first period. She came back about eight or nine months thereafter to leave again on April 11, 1953 and these three or four months may be described as the second period. From July, 1958 when she returned for the second time after about five years till 18th August, 1966 when she left finally constitutes the third period. Exhibits 1 (g) and 1 (a), the two letters on which the finding of cruelty is partly based, apparently relate to incidents taking place during the first and second periods. I have summarised above the evidence led on the petitioner's side to prove the allegation of cruelty. The main allegation appears to be that she was in the habit of quarrelling and abusing every one and that she also used to throw things at her husband when in temper. We find it difficult to agree with the learned Judge that the two letters, exhibits l(g) and 1 (a), would prove conclusively the charge of cruelty against the appellant. Ext. 1 (g) contains the statement made by the appellant admitting that she was at fault in leaving the matrimonial home on the night of April22, 1952, that the allegations made by her against her husband and his parents were false and assuring that she would mend her ways in future. The way it has been worded, the statement does not seem quite natural and one cannot avoid feeling that this was written under some sort of compulsion. Ext. 1(a) in which the appellant admits her own guilt was obviously written for a reconciliation and naturally there would be no mention in such a letter of any wrong done to her. In her evidence the appellant stated that she was persuaded to write the letter by the petitioner and his father and she wrote it to purchase peace. In this connection it is necessary to refer to the letter, Ext. 1(h), written by the petitioner to the appellant's father on April 21, 1953 after the appellant had left for the second time. In this letter the petitioner referred to Ext. 1 alleging that this showed that the appellant had been planning to elope with another man and described the appellant several times as a 'characterless' woman whom he would, not 'take back'. I have already stated that the petitioner in his deposition admitted that Ext. 1 was not a love letter as alleged by him in the petition and the Court below also found that it was not a love letter. Yet, it appears from Ext. 1(h), the petitioner 'remonstrated' with the appellant on the discovery of that letter; exhibit l(h) further proves that he persisted in making insinuations against his wife's character on the basis of the letter, Ext. 1. All these suggest that all the trouble was not due entirely to the appellant's uncontrollable temper as alleged but the other side also contributed to it though on the evidence on record it is not possible to ascertain the exact contribution of each. Thus, till the alleged incident on the night of January I, 1966, to which I shall presently refer, the quarrels and the abuses hurled by the appellant seem to have been provoked at least partly by the conduct of the petitioner. We are not suggesting that the allegation of ill-temper made against the appellant is wholly untrue but the incidents upon which the charge of cruelty is based must be viewed in the proper perspective. We find it difficult to hold on the evidence on record that the appellant deliberately set out on a course of conduct to make the petitioner's life unbearable with the knowledge that her conduct would affect the petitioner's mental and physical health. In this connection it is necessary to refer to the petitioner's complaint that the trouble at home made him a victim of diabetes; there is however no reliable evidence to suggest that the petitioner's ailment was the result of ill-treatment by the appellant.
14. The happenings till April 11, 1953 when the appellant left the petitioner for the second time do not establish in our opinion the charge of cruelty against her. Even assuming that they do, the offence appears clearly to have been condoned by the petitioner when the appellant came back to himin February, 1958. The argument of the learned advocate for the petitioner that the appellant was taken back on probation is quite untenable in view of the fact that they lived together for over seven years before she finally left on August 18, 1966. It is not claimed that they did not resume cohabitation in all these years. During the third and last period when they lived together except the general complaint that her ways had not changed, the only incident alleged by the petitioner is that the appellant sought to throttle him on the night of January 1, 1966. The appellant in her evidence denied the incident and stated that they continued to share the same bed even after the said date. She was not cross-examined on her statement denying the occurrence. The learned Judge was not 'agreeable to accept the case of throttling sought to be made out on behalf of the petitioner.' Considering the evidence ourselves we also find the story unbelievable. The learned Judge referred to three letters, Exts. A1, A2 and A3 written by the petitioner's father to the appellant's father on 7-1-1966, 31-1-1966 and 18-3-1966 respectively, complaining of an incident on January 2, 1966 when the appellant is alleged to have abused the petitioner's parents in extremely rude and vulgar language, as evidence of cruelty. The petitioner however did not refer to any such incident and did not build his case on this occurrence; the letters were disclosed by the appellant. We have already found that the petitioner's own conduct was at least partly accountable for the appellant's bursts of temper and we do not think that the allegations made in the said three letters are by themselves sufficient to establish the charge of mental cruelty as all the circumstances leading to the occurrence complained of in these letters cannot be gathered from the evidence on record. That the petitioner's attitude had not changed would appear from the letters Exts. 1(l), l(m) and l(n) written by the petitioner in which the imputations against the appellant's character were repeated. Considering all the relevant circumstances we are of the view that the charge of cruelty has not been established against the appellant.
15. We therefore allow the appeal, set aside the judgment and decree of the Court below and dismiss the application under Section 10 of the Hindu Marriage Act.
16. In the circumstances of the case, parties will bear their own costs in both courts.
Amiya Kumar Mookerji, J.
17. I agree.