Dastane v. Dastane

A husband sought judicial separation (a court order allowing spouses to live apart without ending the marriage) from his wife on the ground of cruelty. The Supreme Court found the cruelty proved on the ordinary civil standard. It still dismissed his appeal, because he had condoned (forgiven and taken back) the cruelty and she had not revived it afterwards.

Quick Revision

Parties

Dr. Narayan Ganesh Dastane — appellant and husband. He held a doctorate in irrigation research and worked as an Assistant Professor of Agronomy at the Pusa Institute, Delhi. He petitioned for annulment, divorce or judicial separation.

Sucheta Narayan Dastane — respondent and wife. She held a B.Sc. and later a Master's degree in Social Work. She worked in the Commerce and Industry Ministry, Delhi, and resisted the petition.

Procedural History

The judgment text has no numbered paragraphs, so no paragraph numbers are cited below.

1. The husband filed his petition on 19 February 1962. The trial began in September 1964.
2. He asked for annulment under section 12(1)(c) of the Hindu Marriage Act, 1955 on the ground of fraud. In the alternative he asked for divorce under section 13(1)(iii) on the ground of unsoundness of mind. As a further alternative he asked for judicial separation under section 10(1)(b) on the ground of cruelty.
3. The trial court rejected the fraud claim and the unsoundness of mind claim. It held the wife guilty of cruelty and passed a decree of judicial separation.
4. Both sides appealed to the District Court. It dismissed the husband's appeal and allowed the wife's appeal. His petition stood wholly dismissed.
5. The husband filed Second Appeal (a further appeal to the High Court, limited to questions of law) No. 480 of 1968 in the Bombay High Court. A single Judge dismissed it by a judgment dated 24 February 1969. The report's header gives the date of the High Court's judgment and order as 19 February 1969.
6. The High Court agreed with the first appellate court that the wife's conduct was not cruelty. It also held that, in any case, the husband had condoned the cruelty.
7. The Supreme Court granted special leave to appeal, limited to judicial separation on the ground of cruelty. The appeal is Civil Appeal No. 2224 of 1970.
8. The Supreme Court treated the High Court's decision on fraud and unsoundness of mind as final. It would not reopen those questions.
9. The Supreme Court decided the appeal on 19 March 1975. The proceedings had been pending for 13 years.

Facts

The Court noted that both spouses had high academic qualifications and that the record reflected their rancour and acrimony.

1. The husband passed an M.Sc. in Agriculture from Poona University. The Government of India sent him to Australia under the Colombo Plan, and he earned a Doctorate in Irrigation Research there.
2. He returned to India in April 1955 and worked about three years as an Agricultural Research Officer. In October 1958 he moved to Delhi as Assistant Professor of Agronomy at the Pusa Institute. His father was a solicitor-cum-lawyer in Poona.
3. The wife came from Nagpur but spent her early years mostly in Delhi, where her father became an Under Secretary in the Commerce Ministry in 1949. She passed her B.Sc. from Delhi University in 1954 and spent a year in Japan, where her father was attached to the Indian Embassy.
4. After the rift in the marriage she obtained a Master's Degree in Social Work and did field work in marriage conciliation and juvenile delinquency.
5. In April 1956 her parents arranged her marriage to the husband. Before the proposal was finalised, her father B. R. Abhyankar wrote two letters to the husband's father.
6. The first letter said she had a bad attack of sunstroke that affected her mental condition for some time. The second added cerebral malaria as a further reason.
7. The letters said she had been treated at the Yeravada Mental Hospital and was cured. They invited the husband's side to check with the hospital's doctors or with Dr. P. L. Deshmukh, a relative of her mother. They said the aim was that the husband's family should not be in the dark about an important episode in her life.
8. Dr. Deshmukh confirmed the letters. The husband and his father were content and made no enquiries with the hospital.
9. The marriage took place at Poona on 13 May 1956. The husband was 27 and the wife was 21.
10. The couple lived at Arbhavi in District Belgaum from June to October 1956. On 1 November 1956 the husband was transferred to Poona, where they lived together until 1958.
11. A daughter, Shubha, was born on 11 March 1957. The wife delivered in Delhi, where her parents lived, and returned to Poona in June 1957 after about five months.
12. In October 1958 the husband took the job in Delhi. A second daughter, Vibha, was born on 21 March 1959 at Poona, where the husband's parents lived. The wife returned to Delhi in August 1959. Her parents were then living in Djakarta, Indonesia.
13. In January 1961 the wife went to Poona for the marriage of the husband's brother, a doctor who had been adopted into the Lohokare family.
14. A fortnight after that marriage, on 27 February 1961, the husband had the wife examined by Dr. Seth, a psychiatrist in charge of the Yeravada Mental Hospital. Dr. Seth wanted a few sittings exclusively with her.
15. The wife was unwilling to go through any such scrutiny. She or both spouses decided that she should stay for some time with a relative, Mrs. Gokhale. On the evening of 27 February the husband took her to Mrs. Gokhale's house.
16. There was no further consultation with Dr. Seth. The husband said she had promised to see him. She denied any promise. She believed the husband was building a case that she was of unsound mind.
17. That day was the last on which the couple lived together. She was then three months pregnant. The third daughter, Pratibha, was born on 19 August 1961, in the middle of the marital crisis.
18. Close relatives fanned the discord. On 2 March 1961 Gadre, a maternal uncle of the wife, wrote a pseudonymous letter to the husband's father. It was proved to be his, and it was full of malice and sadism. He wrote that this was only the beginning of a conflagration of family quarrels. He also wrote that he wished the wife's father would beat the husband with footwear in a public place.
19. On 11 March 1961 the husband returned to Delhi alone. Two days later the wife followed but went straight to her parents' house.
20. On 15 March 1961 the husband wrote to the police asking for protection. He feared danger to his life from the wife's parents and relatives.
21. On 19 March 1961 the wife met the husband. The meeting gave them one more chance to vent mutual dislike and distrust. After a brief meeting she left the broken home for good. On 20 March the husband again wrote to the police for protection.
22. On 23 March 1961 the wife wrote to the husband complaining about his conduct and asking for money to maintain herself and the daughters. On 25 March her statement alleging desertion (abandonment by a spouse) and ill-treatment was recorded by an Assistant Superintendent of Police. Further statements were recorded.
23. On 19 May 1961 she wrote to the Secretary, Ministry of Food and Agriculture. She said the husband had deserted her and treated her with extreme cruelty, and asked that Government make separate provision for her maintenance. The Ministry followed up, but nothing came of these complaints and cross-complaints.
24. On 3 November 1961 the husband wrote to her father complaining about her conduct. He regretted that not even a proper invitation was sent to him for the naming ceremony of the third child. On 15 December 1961 he wrote that he had decided to go to court for separation.
25. The husband alleged that before the marriage the wife was treated at the Yeravada Mental Hospital for schizophrenia. He said her father had fraudulently described it as sunstroke and cerebral malaria.

The correspondence and the wife's admissions

1. The spouses documented their married life in an almost incredible way. Some letters were written first thing in the morning. Others were written at midnight, soon after harsh words had died down.
2. The wife wrote most of the letters and had a flair for letter-writing. She also wrote an autobiographical account of her stay in the Yeravada Hospital, titled Mee Antaralat Tarangat Asta.
3. The husband's father wrote a book called Gauriharachai Goad Kahani. Several of the wife's relatives, including a younger sister and her maternal uncle, also wrote about her married life.
4. Until August 1959 nothing serious happened. The letters Exs. 556, 238, 243 and 244 show that she often lost her temper and later expressed regret.
   • In Ex. 556 of 23 November 1956 she admitted she had behaved very badly.
   • In Ex. 238 of 26 March 1959 she admitted she behaved like an evil star and had harassed the husband.
   • In Ex. 243 of 5 May 1959 she admitted a lack of sense and asked forgiveness for insulting the husband, his parents, his sister and her husband.
   • In Ex. 244 of 22 May 1959 she asked the husband not to feel guilty about the insults she hurled at his parents.
5. The period from August 1959 to March 1960 was critical. On 16 February 1960 the husband wrote Ex. 256 to her father, then in Indonesia. He said she kept abusing him, his parents and his sister, and that he was extremely unhappy.
6. In Ex. 256 he said she wanted his father's book burnt and the ashes applied to his forehead. He said she called the whole Dastane family mean, wished it ruined, and alleged that his father's Sanad had once been forfeited. The wife admitted the husband had shown her this letter before posting it.
7. On 21 March 1960 the wife wrote Ex. 519 to the husband's parents, admitting the truth of the allegations in Ex. 256.
8. On 23 June 1960 she noted in her own hand that she had called him a person of beggarly luck. She had said that food eaten at his house would cause worms in the stomach. She had threatened: murder shall be avenged with murder.
9. From 1 June to 15 December 1960 the strain wrecked the marriage. In about September 1960 the husband's father offered to mediate and asked each spouse for written complaints.
10. The husband's complaint is Ex. 426 of 23 October 1960. For the period before June 1960 he said she called his mother boorish and abused his ancestors on the day of 'Paksha'. He said she tore off the Mangal-Sutra and beat Shubha while the child had a temperature of 104.
11. He also said one night she behaved as if possessed, tore off the Mangal-Sutra again and refused to wear it. He said she switched on the light at midnight and sat by his bedside nagging him through the night, so that he prostrated himself before her several times.
12. For May to October 1960, which he called a period of utmost misery, he alleged these acts:
    • She harassed him and blurted out anything.
    • She shouted You are not a man at all while a student named Godse sat in the outer room.
    • She said in anger that she would pour kerosene on herself and set fire to herself and the house.
    • She locked him out when he was due back from the office. On four or five occasions he went back to the office without food.
    • She hid his shoes, watch and keys to harass him.
13. Ex. 426 ended by describing her as hard-headed, arrogant, merciless and unbalanced. It said she treated him as a dog tied at the doorstep. It said she treated his relatives as servants. It said he feared she might kill him at any moment, and that he was weary of her beating the daughters and abusing him every night.
14. Most of these incidents were supported by the wife's own admissions, so the Court did not need the husband's bare word.
15. On 18 July 1960 she wrote Ex. 274, admitting she had severely beaten Shubha in front of a visitor. When he protested she retorted that he should not have procreated children if it was a matter of his prestige. She also admitted saying there would be a world deluge because of the birth of those ghosts.
16. On or about 20 July 1960 she wrote Ex. 275. She admitted calling him a monster in a human body and saying he should Pickle them and preserve them in a jar. She admitted threatening that he would lose his job and that she would publish the news in the Poona newspapers.
17. On 15 December 1960 the husband wrote Ex. 285 to her father. He complained about the wife and her mother. He said the mother threatened that, as the wife of an Under Secretary, she knew important people and could get him dismissed. He said she pried into his correspondence in his absence and said the daughter could easily get another husband but not another pair of parents.
18. The wife then went to Poona for the brother's marriage, was examined by Dr. Seth, and the spouses parted on 27 February 1961.
19. Letters after 27 February 1961 bear the stamp of legal advice. The parties were preparing for a legal battle.

Issues Raised

1. What is the nature of the burden of proof (the duty to prove a fact) on a petitioner under the Hindu Marriage Act? What standard of proof applies to cruelty: proof beyond reasonable doubt or preponderance of probabilities?
2. What constitutes cruelty under section 10(1)(b) of the Act, and is the English test of danger to life, limb or health applicable?
3. Is the test of the reasonable man, as in negligence, to be applied in judging the conduct of spouses?
4. Did the wife's conduct amount to cruelty under section 10(1)(b), and were her defences of coercion and self-defence tenable?
5. Had the husband condoned the cruelty under section 23(1)(b), and does continued normal sexual life amount to condonation?
6. Can condoned cruelty be revived by later conduct, and did the wife's later conduct revive it?
7. What are the limits of the High Court's power in a second appeal under sections 100 and 103 of the Code of Civil Procedure, and was the High Court's approach to evidence correct?

Arguments Contended

For the appellant (husband)

• The wife's conduct amounted to cruelty. The Court records that he relied on the tearing of the Mangal-Sutra, the locking out, the threats of suicide and arson, the threats about his job, and the persistent abuse of him and his parents.
• Before the Supreme Court he argued that there was no evidence of condonation.
• Even if he had condoned the cruelty, the wife forfeited the conditional forgiveness by later conduct and revived the original cause of action. He relied on four later facts. The first was the brief meeting of 19 March 1961. The second was her refusal to allow him access to the children. The third was her letter of 19 May 1961 (Ex. 318) to the Ministry, which he said made false and malicious accusations against him and his parents. The fourth was her desertion and her request for separate maintenance.
• Counsel strongly objected to the nine allegations in Ex. 318.
• The authorities he relied on are not named in the judgment.

For the respondent (wife)

• The letters containing her admissions were written under coercion. In her written statement she blamed the husband's parents. At the trial she blamed the husband himself.
• The husband was bigoted and egocentric. He demanded an impossibly rigid standard of behaviour, so her conduct was self-defence or retaliation. He had provoked her and could not take advantage of his own wrong under section 23(1)(a).
• Counsel relied on letter Ex. 244 of 22 May 1959. It refers to an unutterable question. She argued that this was a demand for divorce by which he pestered her.
• Counsel stressed the warning of Denning L.J. in Kaslefsky v. Kaslefsky that opening the door of cruelty too wide would lead to divorce for incompatibility of temperament.
• Condonation is implicit in cohabitation. It is proved by the fact that she was about three months pregnant when the spouses parted on 27 February 1961.
• Section 23(1)(b) speaks of condonation but not of revival. The English doctrine of revival should therefore not be imported into the Act. The judgment records this as an argument that may be urged.

Court's Reasoning

Opinion of Chandrachud, J. (for the Court, with Goswami and Untwalia, JJ.)

Scope of the appeal and the High Court's approach

1. Noted: This is a matrimonial dispute over annulment, divorce or judicial separation. The Court said the record reflects the spouses' rancour and acrimony.
2. Noted: The parties are Hindus, but the Court would not call the wife a Hindu wife or the husband a Hindu husband. It said women of one religion are not exclusively privileged in good sense and loyalty. It said the evidence should bear a secular examination, with no assumption that the wife is the oppressed one.
3. Noted: Special leave was limited to judicial separation on the ground of cruelty. The High Court's decision on fraud and unsoundness of mind is final and cannot be reopened.
4. Noted: The Court would not normally go through the evidence in an appeal under Article 136. A High Court sitting in second appeal could not itself reappreciate the evidence. Section 100 of the Code of Civil Procedure restricts a second appeal to questions of law or to substantial errors or defects in procedure.
5. Noted: The High Court held that both courts below had failed to apply the correct principles of law on cruelty. It therefore examined the evidence itself.
6. Held: The High Court's approach to the wife's abuse and insults was wrong. It had assumed the words were said in exchange for the husband's remarks, yet found no evidence of the husband's conduct. Section 103 of the Code allows the High Court to decide issues of fact if the evidence is sufficient. That power has the same restraints as any court of facts. Courts must remember the line between an inference and guesswork.
7. Held: If the High Court found she uttered the abuse, it could infer retaliation only with direct or circumstantial evidence. With no evidence the husband provoked her, no inference could be drawn against him. No inference arose against the wife either, because the High Court had found the abuse proved. The approach was erroneous and the findings were vitiated.
8. Held: The Court would normally remand (send back) the case. It examined the evidence itself because the proceedings had been pending for 13 years.

Burden and standard of proof

9. Held: The burden of proof lies on the petitioner. Ordinarily the burden lies on the party that affirms a fact, not on the party that denies it. Why: it is much easier to prove a positive than a negative. The petitioner must prove cruelty under section 10(1)(b).
10. Noted: The High Court held that the petitioner must prove cruelty beyond reasonable doubt. The Court asked what standard applies to decide whether the burden has been discharged.
11. Held: The normal civil rule is proof by preponderance of probabilities. Why: under section 3 of the Evidence Act a fact is proved when the court believes it exists. It is also proved when the court finds it so probable that a prudent man would act on the supposition that it exists.
12. Noted: The first step is to fix the probabilities and the second is to weigh them. The impossible is weeded out at the first stage and the improbable at the second.
13. Noted: Important issues, such as those affecting the status of parties, need closer scrutiny than a loan on a promissory note. The Court cited Dixon J. in Wright v. Wright and Lord Denning in Blyth v. Blyth for the point that proof must be clearer as the offence is graver.
14. Held: Whether the issue is cruelty or a loan, the test is whether the fact is proved on a preponderance of probabilities.
15. Noted: Proof beyond reasonable doubt is a higher standard. It governs criminal trials and quasi-criminal inquiries, where liberty is at stake. If a reasonable mind cannot tell where the preponderance lies, a doubt arises and the accused gets its benefit. It is wrong to import this into a purely civil trial.
16. Held: Section 10, which lists the grounds for judicial separation, and section 23, which governs the court's power to decree, do not require proof beyond reasonable doubt. Section 23 allows a decree if the court is satisfied. Because proceedings under the Act are essentially civil, satisfied means satisfied on a preponderance of probabilities, not beyond reasonable doubt. Section 23 does not alter the civil standard.
17. Noted: The misconception may come from calling the respondent's conduct a matrimonial offence. Society has a stake in marriage, so the erring spouse is treated as an offender. This may call for the clearest proof of an allegation before marriage is dissolved. It has no bearing on the standard of proof.
18. Noted: The House of Lords in Blyth v. Blyth held by a majority that the grounds of divorce, and bars such as connivance or condonation, may be proved by a preponderance of probability. The High Court of Australia in Wright v. Wright took the same view for matrimonial causes, including adultery.
19. Held: The High Court erred in requiring proof of cruelty beyond reasonable doubt. The Court was not clear what the High Court meant by adding that proof must be in accordance with the law of evidence.

Meaning of cruelty under section 10(1)(b)

18. Noted: The High Court began with Moonshee Bazloor Rubeem v. Shamsoonnissa Begum. The Privy Council there said legal cruelty needs actual violence endangering personal health or safety, or a reasonable apprehension of it.
19. Noted: The High Court also traced the march of Indian courts with English courts and cited Tolstoy's definition. Tolstoy defines cruelty as wilful and unjustifiable conduct causing danger to life, limb or health, bodily or mental, or a reasonable apprehension of such danger. The High Court held that none of the acts was grave enough to be cruelty.
20. Held: Foreign decisions are a useful guide. But the Court must interpret a specific provision of a specific enactment: section 10(1)(b). The provision lets a spouse seek judicial separation where the other has treated the petitioner with such cruelty as to cause a reasonable apprehension that living together will be harmful or injurious.
21. Held: Under the Act, the question is whether the conduct caused a reasonable apprehension in the petitioner's mind that it would be harmful or injurious to live with the respondent. The English requirement of "danger" to life, limb or health is not needed. Danger is a higher requirement than harm or injury.
22. Noted: The Court showed the risk of relying on English decisions through Tolstoy's passage citing Horton v. Horton. It says spouses take each other for better or worse, and it is not enough that they find life together impossible, even if health suffers.
23. Noted: Where danger to health arises merely from inability to live together, as with indifference, the charge of cruelty may perhaps fail. But under section 10(1)(b), harm or injury to health, reputation, the working career or the like is an important consideration. The Court must ask whether this respondent treated this petitioner with cruelty causing a reasonable apprehension of harm. It is not asking whether English principles are met.
24. Held: The apprehension must be reasonable. Apart from that, it is wrong to import the reasonable man of the law of negligence into matrimonial relations. A court should not philosophise on the modalities of married life, such as late hours or an early golf round.
25. Noted: The Court quoted American Jurisprudence. Cruelty is judged mainly by its effect on the particular person complaining. The question is not whether the conduct would be cruel to a person of average sensibilities, but whether it would have that effect on the aggrieved spouse. What one person laughs off may be extreme cruelty in another situation.
26. Noted: The Court deals with the particular man and woman before it. An ideal couple will rarely need a matrimonial court. It quoted Lord Reid in Gollins v. Gollins: "We are dealing with this man and this woman". He said one can hardly start with a presumption that the parties are reasonable people.
27. Held: The Court must understand this husband and wife as nature made them and as they shaped their lives.
28. Held: The only rider is section 23(1)(a). Relief can be decreed only if the court is satisfied that the petitioner is not taking advantage of his own wrong. Not otherwise.
29. Held: Trivialities and the reasonable wear and tear of married life must be ignored. Grievances from temperamental disharmony or incompatibility are not cruelty and do not justify dissolving a marriage. The Court looks only at grave and weighty incidents.
30. Noted: The spouses parted on 27 February 1961. The husband filed his petition on 19 February 1962 and the trial began in September 1964. The 3½ years of separation must have created further misunderstanding and bitterness. In such an atmosphere truth is a common casualty, so the Court would not accept the husband's bare word on what the wife said or did. The wife's evidence is open to the same criticism, so her explanations need care.

The evidence of cruelty

29. Noted: The married life is well documented. The Court observed that it is seldom a husband and wife sharing a home use the written word to communicate. The wife's letters are a queer mixture of confessions and opprobrious accusations. Every person connected with the couple seemed to have a penchant for writing.
30. Noted: The marital letters show the wife often lost her temper and later expressed regret (Exs. 556, 238, 243, 244). The critical period of August 1959 to March 1960 shows an innate lack of self-control that drove her to inexorable conduct. In Ex. 256 the husband complained of her constant accusations. She admitted its truth in Ex. 519 and in her note of 23 June 1960.
31. Noted: The husband's bill of complaints (Ex. 426) lists the incidents before June 1960 and from May to October 1960, as recorded in the Facts. Most of them are supported by the wife's own admissions. These include Exs. 274 and 275, in which she admitted beating Shubha, calling him a monster in a human body, and threatening his job.
32. Noted: Ex. 285 records the complaints about the wife's mother, including the threat that she could get the husband dismissed through her contacts. The correspondence after 27 February 1961 shows legal advice and preparation for a legal battle, and the Court said it would be considered later in a different context.
33. Held: The wife's first contention was that the letters containing her admissions were written under coercion. The Court found no substance in it. Her written statement blamed the husband's parents, but at trial she blamed the husband.
34. Why: After the marriage collapsed she sent formal letters like lawyer's notices, some by registered post, and none alleged that admissions had been obtained from her. See Exs. 299 and 314 of 23 March and 6 May 1961 and Ex. 318 of 19 May 1961. Her list of complaints Ex. 424 of 23 September 1960 does not mention it. Exs. 271 and 272 of 23 June and 10 July 1960 also contain allegations against the husband, so could not have been coerced. She was always surrounded by relatives acting as marriage-counsellors, and any coercion would not have escaped being recorded.
35. Held: Her second contention relied on section 23(1)(a). She said the husband was bigoted and egocentric, and that she acted in self-defence. The fulfilment of the section 23(1) conditions is imperative. The legislature provided that then, and in such a case, but not otherwise, the court shall decree relief.
36. Noted: The husband seems a stickler for domestic discipline. The wife's memorandum Ex. 379 of 22 September 1957 lists his 14 special instructions. They include:
    • looking in the mirror on rising;
    • not filling the milk vessel or tea cup to the brim;
    • not serving meals in brass plates;
    • preserving letters and not dipping fingers in utensils;
    • not working with one hand;
    • keeping Shubha six feet from the primus stove;
    • not talking much, and writing letters in good handwriting without exaggeration.
37. Held: The instructions were utterly tactless but did not call for an attack in self-defence. The husband was 28 and the wife 22. Young couples have lavish expectations that they later regret. The plea of self-defence was an afterthought that arose when there was a fundamental failure of faith and understanding.
38. Why: The written statement denied the conduct and did not plead provocation. Also, letters on record show the wife and her relatives had complimented the husband and his parents on their warmth, patience and understanding.
39. Held: Counsel also relied on the unutterable question in Ex. 244 of 22 May 1959 to argue that the husband demanded divorce. The Court said no such inference could be drawn. The wife did not produce the letter to which Ex. 244 replied. Her written statement hardly suggested he asked for divorce. She was not asked in evidence to explain the phrase.
40. Held: The defences to the charge of cruelty are rejected. The Court accepted the warning of Denning L.J. in Kaslefsky v. Kaslefsky that opening the door of cruelty too wide would mean divorce for incompatibility of temperament and would imperil marriage. But holding that this wife's conduct is not cruelty would close the door for ever.
41. Held: This is not a case of mere austerity of temper, petulance of manners, rudeness of language or want of civil attention. The wife is at the mercy of her inflexible temper and delights in causing misery. She willingly suffered the calculated insults her relatives hurled at the husband and his parents. The Court listed her outbursts:
    • the false accusation that his father's Sanad was forfeited;
    • wishing ruin on the whole Dastane dynasty;
    • burning his father's book and applying the ashes to his forehead;
    • you are not a man (conveying that the children were not his);
    • you are a monster in a human body;
    • "I will make you lose your job and publish it in the Poona newspapers".
    By their regularity these became a menace to the peace and well-being of the household.
42. Held: The tearing of the Mangal-Sutra, locking out the husband, rubbing chilli powder on an infant's tongue, beating a child mercilessly in high fever, and switching on the light at night to nag him tend to destroy the legitimate ends and objects of matrimony. Even if occasional sallies were justified, her pattern of behaviour was grossly excessive. Her conduct clearly amounts to cruelty within section 10(1)(b).
43. Held: Her threats and abuse were of so grave an order that they imperil the husband's sense of personal safety, mental happiness, job satisfaction and reputation. The threats were to end her own life, to set the house on fire, and to make him lose his job and publish it in the newspapers. The abuse of him and his parents was persistent. Her frequent apologies were impromptu devices to tide over a crisis, not genuine contrition.

Condonation

42. Noted: Section 23(1)(b) applies in any proceeding, defended or not. Where the ground is cruelty, relief can be decreed only if the petitioner has not in any manner condoned the cruelty.
43. Noted: The wife did not plead condonation in her written statement, so the trial court framed no issue on it. The trial court granted separation without addressing condonation. The first appellate court found no cruelty, so condonation did not arise.
44. Noted: The High Court held that, in any case, the husband had condoned the cruelty. It rested this on cohabitation until 27 February 1961 and the birth of a child in August 1961.
45. Noted: Before the Supreme Court the husband argued there was no evidence of condonation. The wife argued condonation is implicit in cohabitation and proved by her pregnancy when they parted.
46. Held: Even though condonation was not pleaded, the Court must decide it. Section 23(1)(b) places an obligation on the court that must be discharged even in undefended cases. There must be evidence on the record to show the husband condoned the cruelty.
47. Held: Condonation means forgiveness of the matrimonial offence and restoration of the offending spouse to the same position as before the offence. It needs two things: forgiveness and restoration. The evidence of condonation in this case is as strong and satisfactory as the evidence of cruelty.
48. Held: Condonation is not proved by the mere fact that the spouses shared a common home during or after the cruelty. Cruelty is generally a series of acts over time, not a single act. The law does not require a spouse to leave at the first cruel act, lest continued cohabitation be treated as condonation. That would hinder reconciliation and frustrate the benign purpose of marriage laws.
49. Held: The evidence here is that the spouses led a normal sexual life despite the wife's cruelty. This is not a case of stray acts of intercourse after separation, where intent to forgive and restore may be lacking. If during cohabitation the spouses, uninfluenced by the offending spouse's conduct, live in an intimacy that characterises normal marriage, the intent to forgive and restore may reasonably be inferred.
50. Held: The conception of the child cannot be treated as a stark animal act without the nobler graces of marital life. It cannot be imagined that the act was to kill boredom or in a spirit of revenge. Such speculation is impermissible. Sex plays an important role in married life. Evidence of a normal sexual life after a series of cruel acts is proof that the other spouse condoned them.
51. Held: Intercourse is not a necessary ingredient of condonation, because other evidence may show forgiveness and restoration. But intercourse in these circumstances raises a strong inference of condonation, and that inference stands uncontradicted. The husband did not explain how he came to lead a normal sexual life with the wife after a series of acts of cruelty.

Revival of condoned cruelty

51. Held: Condonation is not like a full Presidential pardon under Article 72 of the Constitution, which wipes out guilt beyond revival. Condonation carries an implied condition that the offending spouse commits no fresh matrimonial offence. The fresh offence may be of the same variety or any other.
52. Noted: The Court quoted the principle: "No matrimonial offence is erased by condonation. It is obscured but not obliterated". Since the condition is that no further offence occurs, the fresh offence need not be ejusdem generis (of the same kind) with the original. Condoned cruelty can therefore be revived, for example by desertion or adultery.
53. Noted: The argument that section 23(1)(b) speaks of condonation but not revival, so the English doctrine of revival should not be imported, may seem to get support from English law. Until the Divorce Reform Act, 1969, one offence, adultery, could not be revived once condoned in England.
54. Held: The argument is weak. Condonation was established by the ecclesiastical courts and adopted from canon law. It is a technical word meaning a conditional waiver of the injured spouse's right to take matrimonial proceedings, not forgiveness as commonly understood. In England condoned adultery could not be revived because of section 3 of the Matrimonial Causes Act, 1963, later section 42(3) of the Matrimonial Causes Act, 1965. The Act has no such provision on cruelty.
55. Held: Condonation in section 23(1)(b) therefore means conditional forgiveness, with the implied condition that no further matrimonial offence is committed.
56. Noted: The husband argued that the wife forfeited the forgiveness by later conduct and revived the cause of action. He relied on the 19 March 1961 meeting, denial of access to the children, her letter of 19 May 1961 (Ex. 318), and desertion with a demand for maintenance.
57. Held: The later conduct must be assessed differently from the earlier cruelty. The earlier incidents had to be grave and weighty. Conduct after condonation may be insufficient by itself for a decree of judicial separation, yet may still revive the condoned offence. For example, gross familiarities short of adultery, or desertion for less than the statutory period, may suffice. The Court cited Halsbury and Beard v. Beard.
58. Held: The 19 March 1961 incident is too trifling to deserve notice. The husband's own police complaint (Ex. 295 of 20 March 1961) says the wife came with relatives, they entered his house though he asked them not to, and she took away some household articles. Her letter Ex. 294 of 19 March shows these were petty items: a doll, a slate, a baby hold-all, two pillows, a bundle of clothes and a baby-cart. The police complaint showed hypersensitivity.
59. Held: On access to the children, the husband's grievance in Exs. 307, 309 and 342 of 20 April, 21 April and 23 November 1961 could be real. But Shubha and Vibha were 4 and 2 years old when the parents parted. They could not travel unescorted. The only person who could escort them was the mother, who had left or had to leave the home for good. Going to her parents' house was impracticable for the husband. The wall dividing the parents denied him access.
60. Noted: Ex. 318 of 19 May 1961 asked the Government to provide separate maintenance. The Court listed nine allegations:
    • harassment and torture during the marriage;
    • being driven out on 27 February 1961;
    • desertion and refusal of maintenance or medical help in advanced pregnancy;
    • being denied food and clothing;
    • wicked parents-in-law;
    • threats of divorce, expulsion or killing;
    • the psychiatric plan as an insincere and evil move;
    • being driven out after refusing further examination;
    • cruelty causing a reasonable apprehension of harm.
61. Held: Read in isolation, the allegations give a distorted picture. The context matters.
62. Noted: Mrs. Gokhale's letter Ex. 644 of 7 March 1961 shows the wife's side objected not to consulting a psychiatrist but to doing so without prior intimation. The husband's brother Dr. Lohokare and his brother-in-law Deolalkar expressed regret. The letter proposed a compromise: the wife stays at her parents' place until delivery and visits the husband; the children are free to visit him; and Dr. Lohokare's mother stays with them in Delhi for a few days if he wants her to live with him. It ends with a plea to live in peace instead of digging the past.
63. Held: The letter is mostly in the wife's handwriting, so it was written with her knowledge and consent. It shows she did not want to leave the husband or to keep the children from him. It was written in the ordinary course, not to create evidence, and reflects a genuine attitude. The Court read it with her letter Ex. 304 of 18 April 1961, which offered to nurse him at her parents' address in East Patel Nagar, Delhi.
64. Held: There is no question that the wife had no intention to desert. As she said more than once, the husband had taken her to Mrs. Gokhale's house on 27 February 1961, perhaps hoping she would cooperate with Dr. Seth. She did not leave the house of her own volition.
65. Noted: The husband had worked himself up to believe she had gone off her mind. On 15 March 1961 his police complaint Ex. 292 said she was in the Mental Hospital before marriage and needed treatment, and called her a very dangerous woman, with confused thinking when excited, though also loving and affectionate. On 20 April 1961 he wrote Ex. 305 charging her with an unsound state of mind and refusing liability for her expenses. He also wrote Ex. 307 to her father and, on 21 April 1961, Ex. 309 to the Director of Social Welfare, Delhi, calling her a lunatic before marriage.
66. Held: The reiterations seem aimed at preparing ground for divorce or annulment. The husband was anxious to spread the information widely that she was of unsound mind.
67. Noted: On 6 May 1961 the wife replied with Ex. 314. She was willing to go back to Poona if he made satisfactory arrangements, but said that as a wife she was entitled to live with him. She promised to account for every pie he sent. Against this background she wrote Ex. 318 to the Government.
68. Noted: When the Government asked for his explanation, the husband replied by Ex. 323 of 19 July 1961. He said she needed mental treatment, wrote Ex. 318 in a madman's frenzy and that her father had "demoralised" her. In Ex. 342 of 23 November 1961 he called her your schizophrenic daughter.
69. Held: In this context the allegations in Ex. 318 cannot revive the original cause of action. The husband provoked them by his persistent and purposeful accusation that she was of unsound mind. For this appeal the Court must assume that accusation is wrong and unfounded, because leave to appeal against the finding of baselessness was denied. He also protested that he was not liable to maintain her. It is difficult to accept that she deserted him or treated him cruelly after the condonation.
70. Noted: The more serious the original offence, the less grave need be the subsequent acts to constitute a revival. In cruelty cases "very slight fresh evidence is needed" to show resumption, since cruelty of character shows itself day in and day out. The Court cited Cooper v. Cooper and Batram v. Batram (Scott L.J.).
71. Held: The wife's conduct after condonation cannot be viewed apart from the husband's. Condonation is conditional forgiveness, but it does not give the condoning spouse a charter to malign the other spouse. Otherwise the condoned spouse would have to submit mutely to cruelty with no remedy.
72. Held: The wife ought not to have called the husband's parents wicked. That is perhaps the only allegation in Ex. 318 open to exception. The Court could not rely on that solitary circumstance to revive condoned cruelty.
73. Held: The wife was guilty of cruelty, but the husband condoned it. Her later conduct is not such as to revive the original cause of action.

Authorities

• Blyth v. Blyth, [1966] 1 A.E.R. 524 at 536 (House of Lords): relied on. Held by majority that grounds of divorce and bars such as connivance or condonation may be proved by preponderance of probability. Lord Denning's remark that proof must be clearer as the offence is graver was also cited.
• Wright v. Wright, (1948) 77 C.L.R. 191 at 210 (High Court of Australia): relied on. The civil, not the criminal, standard applies to matrimonial causes, including adultery. Dixon J.'s remark on the nature and gravity of an issue was also cited.
• Moonshee Bazloor Rubeem v. Shamsoonnissa Begum, 11 Moore's Indian Appeals 551 (Privy Council): relied on by the High Court for its view of legal cruelty. The Supreme Court held the test under section 10(1)(b) is different.
• Tolstoy, The Law and Practice of Divorce and Matrimonial Causes (6th Ed.), pp. 61, 63, 75: the High Court cited the definition of cruelty from p. 61. The Supreme Court did not follow it. It cited p. 63 for the passage from Horton v. Horton. It cited p. 75 for the meaning of condonation.
• Horton v. Horton, [1940] P. 187: cited through Tolstoy, as an example of the risk of relying on English decisions. Spouses take each other for better or worse.
• Gollins v. Gollins, [1963] 2 A.E.R. 966, 970 (Lord Reid): followed. The Court deals with this man and this woman, not the reasonable man of negligence law.
• American Jurisprudence, 2nd Ed., Vol. 24, p. 206: quoted. Cruelty is judged mainly by its effect on the particular person complaining.
• Kaslefsky v. Kaslefsky, [1950] 2 A.E.R. 398, 403 (Denning L.J.): accepted as a warning. If the door of cruelty is opened too wide, divorce for incompatibility of temperament follows. The Court said that holding no cruelty here would close the door for ever.
• Ferrers v. Ferrers, (1791) 1 Hag. Con 130: cited for the long-standing legal meaning of condonation.
• Beard v. Beard, [1945] 2 A.E.R. 306: cited for the point that desertion for less than the statutory period may revive a condoned offence.
• Cooper v. Cooper, (1950) W.N. 200 (H.L.): cited for the point that the more serious the original offence, the less grave the later acts need be.
• Batram v. Batram, (1944) P. 59 at 60 (Scott L.J.): cited for the point that very slight fresh evidence is needed to show resumption of cruelty.
• Also cited in footnotes: Words and Phrases Legally Defined (Butterworths, 1969 Ed.), Vol. I, pp. 305, 306; Halsbury's Laws of England, 3rd Ed., Vol. 12, p. 3061 and p. 306 (section 609); Rayden on Divorce, 11th Ed. (1971), pp. 11, 12, 23, 68, 2403.

Provisions Discussed

• Hindu Marriage Act, 1955, section 12(1)(c): lets a party seek annulment where consent to the marriage was obtained by fraud.
• Section 13(1)(iii): lets a party seek divorce where the other is incurably of unsound mind for a continuous period of at least three years immediately before the petition.
• Section 10(1)(b): lets a party seek judicial separation where the other has treated the petitioner with cruelty that causes a reasonable apprehension that living together will be harmful or injurious.
• Section 23(1): relief is decreed only if the court is satisfied on the matters in clauses (a) to (e), but not otherwise. The court acts if it is satisfied.
• Section 23(1)(a): relief only if the petitioner is not taking advantage of his own wrong.
• Section 23(1)(b): where the ground is cruelty, relief only if the petitioner has not in any manner condoned the cruelty. This applies to defended and undefended cases.
• Code of Civil Procedure section 100: limits a second appeal to questions of law or substantial procedural errors or defects. Section 103: lets the High Court decide issues of fact when the evidence is sufficient.
• Section 3 of the Evidence Act: a fact is proved when the court believes it exists or finds it so probable that a prudent man would act on the supposition that it exists.
• Constitution of India, Article 136: the Supreme Court's special leave jurisdiction; the Court does not normally weigh evidence in such appeals. Article 72: the President's pardon power, used as a contrast with condonation.
• English law referred to: Matrimonial Causes Act, 1963, section 3, and Matrimonial Causes Act, 1965, section 42(3), on adultery not being revivable once condoned; and the Divorce Reform Act, 1969.

Judgement

1. The Court held that the wife was guilty of cruelty, but that the husband condoned it. Her later conduct did not revive the original cause of action.
2. The appeal was dismissed.
3. The appellant was directed to pay the costs of the respondent.

Legal Principle / Ratio

• A petitioner must prove cruelty, but only on a preponderance of probabilities. Section 23 satisfied means satisfied on a preponderance of probabilities, not proof beyond reasonable doubt.
• Cruelty under section 10(1)(b) means conduct causing a reasonable apprehension that it will be harmful or injurious to live with the respondent. It is judged on the particular spouses, not a reasonable man or the English test of danger.
• Condonation is forgiveness plus restoration. A normal sexual life after a series of cruel acts is proof of condonation. Condonation is conditional, so a fresh matrimonial offence can revive the condoned cruelty. The Court's holding: "the respondent was guilty of cruelty but the appellant condoned it".

Critical Analysis

Analysis based on the judgment text.

• The Court treated its holding on revival as turning on the husband's own conduct, namely his repeated accusations of unsound mind. The judgment does not say how a Court should weigh provocation in other revival cases.
• The finding of condonation rests on the inference from a normal sexual life. The judgment itself says intercourse is not a necessary ingredient of condonation, and that stray acts after separation may lack the intent to forgive and restore.
• The Court accepted that its evidence examination replaced a remand only because the case had been pending 13 years. The judgment shows the High Court's mistake in applying section 103, and the Supreme Court itself reassessed the facts under that provision.
• The Court ignored what it called trivialities and relied only on grave and weighty incidents. The judgment does not draw a precise line between temperamental disharmony and cruelty.

Significance

• The judgment fixes the civil standard of proof for matrimonial cases under the Hindu Marriage Act and explains how a court weighs probabilities.
• It sets out an Indian test for cruelty under section 10(1)(b), apart from English law's test of danger to life, limb or health.
• It explains condonation as forgiveness plus restoration, shows how continued marital life proves it, and treats condonation as conditional and revivable.
• It confirms that section 23(1)(b) duty to examine condonation applies even where the respondent did not plead it.
• It shows how a petitioner can prove cruelty and still lose by condonation.

Exam-Important Points

• Rule: the burden lies on the petitioner, but the standard is preponderance of probabilities, not beyond reasonable doubt. Trap: the High Court applied the criminal standard and was held wrong.
• Rule: cruelty under section 10(1)(b) needs a reasonable apprehension of harm or injury. Danger to life, limb or health is not required.
• Rule: do not apply the reasonable man of negligence law. The Court deals with this man and this woman.
• Rule: trivialities and the wear and tear of married life are not cruelty. Only grave and weighty incidents count. Temperamental disharmony or incompatibility is not cruelty.
• Rule: condonation = forgiveness + restoration. Continued cohabitation alone is not condonation. A normal sexual life after a series of cruel acts proves it. Stray acts after separation may not.
• Rule: the court must examine condonation under section 23(1)(b) even if the respondent did not plead it, and even in undefended cases.
• Rule: condonation is conditional. A fresh offence of any kind, not necessarily the same kind, can revive it. Trap: condonation is not like a Presidential pardon.
• Trap: the husband proved cruelty and lost. His own accusations of unsound mind provoked the wife's later letter, so it did not revive the cruelty.
• Rule: in second appeal, section 100 CPC limits the High Court to questions of law, and section 103 powers have the same restraints as any court of facts.

Prepared from the full text of the judgment. The judgment text has no numbered paragraphs, so no paragraph numbers are cited. The report is AIR 1975 SC 1534; (1975) 2 SCC 326.