NARAYAN GANESH DASTANE

SUCHETA NARAYAN DASTANE

March 19, 1975

(Y. V. CHANDRACHUD, P. K. GOSWAMI AND N. L. UNTWA1LIA, JJ.]

8 Hindu Marriage Act.:._Sectio11 IO(l)(b) and 23(1)(a) (bl-Meaning of cmelty-Burden of proof. in matrimonial matters-Whether beyond reasonable doubt-Condonation of cruelty-Whether sexual intercourse amounts to condoi; ation-Whetlzer condo11atio11 is conditional-Revival of cruelty.

Code 'of Civil Procedure-Sectio11 100 and 103-Powers of Hig/z Court in second appeu:.

Evidence Act-Section 3-Proof, meaning of.

The. :ippellant husband filed a petition for annulment of marriage on the ground of fraud, for divorce on the ground of unsoundness of mind and for judicial separation on the ground of cruelty. The appellant and respondent possess high educational qualificat!ons and they were married in 1956. Two children were born of the marriage one in 1957 and the other in 1959.

The Trial Court rejected the coatention of fr:iud and unsoundness of mind.

It, however, held the wife guilty of cruelty and on that ground passed a decree for judicial separation. Both sides went in appeal to the District Court which • dismissed the husband's appeal and allowed the wife's. The husband then filed a Second Appeal in the High Court. The High Court dismissed thllt appeal.

On appeal to this Court.

HELD. (i) Normally this Court would not have gone into evidence esP::- cia!Iy as the High Court itself could not have gone into the evidence m

seond appeal. sction JOO of the C.P.C. restricts the jurisdiction of the High Court in second appeal to questions of law or to substantial errors or defects in the procedure which might possibly hllve produced error or defect in the decision of the case upon merits. The High Court came to the conclusion that both the courts below had failed to apply the correct principles of law in determining the issue of cruelty. Accordingly the High Court proceeded to consider evidence for itself. Under s. 103 C:P.C. the High Court can determine any issue of fact if the evidence on the record is sufficient but if the High Court takes upon iiself the duty of determinng an issue of fa,:t, its powers to appreciate evidence would be subject to the same restraining conditions to which the power of any court of facts is ordin; irily subject. The limits of that power are not wider for the reason that the evidence is being appreciated by the High Court and not by the District Court.

While appreciating evidence, inferences may and have to be drawn but courts of facts have to remind themselves of the line that divides an inference from guess work.

Normally this Court would have remanded the matter to the High Court for a fresh cons!deration of the evidence but since the proceedings were pending for 13 years the Court itself went .into the evidence. [973 F-974 HJ

(ii) The burden of proof in a matrimonial petition must lie on the petitioner because ordinarily the burden lies .on the party which affirms a fact, not on the party which denied it.

This principle accords with commonsense, as it is much easier to prove a positive than a negative. The petitioner must, therefore. prove that the respondents had treated him with cruelty within the meaning of s. JO(J)(b) of the Act.

But the High Court was wrong in holding that the petitioner must prove his case beyond a reasonable doubt. The normal rule which governs civil proceedings is that a tact is said tO be established if it is proved by preponderance of probabilities. Under s. 3 of the . Evidence Act a fact is said to be proved when the court either believes it to exist or if

rnnsiders its existence so probable th:it a prudent man ought, in the cicum stances, to act upon the supposition that it exists. The first step in this process is to fix the p; orabilities. the second to weigh them. The impossible is weeded

out in the first stage, the improbable in the second.

Within the wide range of probabilities the Court has often a difficult .choice to make but it is this choice which ultimately determines where the preponderani:e of probabilities lies. Important issues like the status of parties demand closer scrutiny than those like the loan on a promissory note. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving enquiries into issues of quasi-criminal nature. It is wrong to import such considerations in trials of a purely civil nature. Neither s .. 10 nor s. 23 of the Hindu Marriage Act requi.res that the petitioner must prove his case beyond reasonable doubt.

S. 23 confers on the court the po_wer to pass a decree if it is satisfied on the matters mentioned in Clauses (a) to {e) of that Section.

Considering that proceedings under the Act are essentially of a civil hature the word 'satisfied' must mean satisfied on a preponderance of probabilities and not satisfied beyond a reasonable doubt. The society has a stake in the institut'on of marriage and, therefore, the erring spouse is treated not as a mere defaulter but as an offender. But this social philosophy, though it may have a bear'.ng on the need to have the clearest proof of an allegation before it is

acc~, itPd as a ground for. the dissolution of marriage, it has no bearing on the &tandard of proof in matrimonial cases. In England, a view was at one time taken that a petitioner in a matrimonial petition must establish his or her case beyond a reasonable doubt but the House of Lords in Blyth v.

Ellyth has held that the grounds of divorce or the bars to .the divorce may be proved b'y a preponderance of probability. The High Court of Austr?-1ia has also taken a similar view. (97 5 A-976 Bl

(iii) On the quest!on of condonation of cruelty, a specific provision of a specific enactment has to be interpreted, namely s. lO{l)(b). The enquiry, D therefore,' has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. It is not necessary, as under the English Law, that the cruelty must be of such a character as to cause danger to life; limb or health or as to ive rise to a reasonable apprehension of such a danger. It is risky to rely on English decisions in this field although awarenes5 of foreign decisions can be a useful guide irr interpreting our laws.

The apprehension of the petitioner that it will be harmful or injurious to live E with the other party has to be reasonable.

It is, howe.ver, wrong _to import the concept of a reasonable man as known to the law of negligence for judging matrimonial relations. The question is not whether the conduct would be cruel to a reasonable person or a person d average or normal sensibilities but whether it would have that effect on the aggrieved spouse. That which may be cruel to one person may be .aughed off by another and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances. The Court has to deal not with an ideal husband and an ideal wife but with the particular man and woman before it. The F only rider is that of s. 23 (1) (a) of the Act that the relief prayed for can be decreed only if the petitioner is not taking advantage of his own wrong.

[977 D-G; 978 C-F; 979 A]

(iv) Acts like the tearing of the Mangal Sutra, locking out the husband when he is due to arrive from the office, rubbing of chilly powder on the tongue of an infant child, beating a child mercilessly while in high fever and switching on . the light at night and sitting by the bedside of the husband merely to nag him are actswhich tend to destroy the legitimate ends and objects of matrimony. The •:onduct of wife amounts to cruelty within the meaning of s. 10(1) (b) of the Act.

The threat that she would 'put an end to her own life or that she will set the house on fire, the threat that she will make the husband lose his job and have the matter published in newspapers and the persistent abuses and inmlts hurled at the husband and his parents are all of so grave an order as to imperil the appellant's sense of personal safety, mental . happiness, job satisfaction and reputation. [985 B-E]

(v) In any proceeding under the Ac\, whether defended or not, the relief prayed for can be decreed only if the petitioner has not condoned the cruelty.

The wife did not take up the plea of condonation in her written statement.

The Trial Court did not frame any issue of condonation,. The District Court

N, G. DASTANE v. SUC{l_ETA (Chandrachud, /.) 969

did not address itself on the question of condonation since it did not find the condu:t of the wife to be cruel. The High Court held that the conduct of the wife was not cruel and in any case it was condoned. S. 23 (1 )(b) casts obligation on the court to consider the question of condonation. Condonation means forgiveness of the matrimonial offence and restoration of spouses to the same position as he or she occupied before the matrimonial offence was committed. Cruelty generally does not consist of a single isolated act. It eonsists in most, ca5Cs of a series of 11cts spread over a period of t@.e. Law does not require that at the first appearanci;: of a cruel act, the other spouse must leave the matrimonial home lest the continued coha.rbitation be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the benign purpose of marriage laws. The evidence on condonation consists in th1s case in , the fact that spouse led a normal sexual life despite the various acts of cruelty. This is not a case where the spouse after separation indulge in stray acts of sexual intercourse in which case the necessary intent to forgive and restore may be said to be lacking. Such stray acts may bear more than one explanation but if during cohabitation the spouses uninlluenced by the conduct of the offending spouse, lead a life of intimacy which characterised normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. There is then no scope for imagining that the conception of the child could b~ the result of a single act of sexual intercourse and tha.t such an act could be a stark animal act unacompanied by the nobler graces of marital life. Sex plays an imJ>?rtant role in married life and cannot be separated from other factors which lend to matrimony a sense of fruition a.nd fulfilment. Therefore, evidence showing that the spouse led a normal sexual life even after serious acts of cruelty by one s.ir<>use is proof that the other spouse •:ondoned that cruelty. Intercourse in circumstances as obtained here _would raise a strong inference of condonation.

That inference stands uncontradicted, 'the husb11nd not 'having explained the circumstances in which he came to lead and live a normal sexual life.

[985 G-987 BJ

(vi) But condonation of a matrimonial offen:e is not to be likened to a Presidential pardon which once granted wipes out the guilt beyond the possibility, of revival.

Condonation is always subject to the imolied condition that the offending spouse, will not com.mit a further matrimonial offence either of the same variety as the one condoned or of any other variety. No matrimonial offence is erased by condonation. It is obscured but not obliterated. Condoned cruelty can, therefore, be revived. For revival of condonation it is not necessary that the conduct should be 'enough by itself to found a degree for judicial separation. The wife in not ailowing the husband access to the childre11 cannot be said to have revived the earlier cruelty since the children were of tender age and the c; mly person who could escort them had left or had to leave the matrimonial home for good. The subsequent conduct of the wife has to be !ISSessed in the context in which the husband behaved. The husband persistently accused the wife of insanity and refused to maintain her. In that context, the alleg!!tions made by the wife in her letter to the Government cannot revive the original cause of action though it is true t.hat more serious the original offence the less grave need be' the subsequent act to. constitute revival. .

[987 C; 988 C-D, G-H; 991 E-H]

Held, dismissing the appeal,

That the .wife was guilty of cruelty but the husband condoned it and the

subseqnf conduct of the wife was not such as to amount to revival of the original cause of action. [992 B-C] CML APPELLATE ]UJUSDICTION : Civil Appeal No. 2224 of 1970.

From the judgment and order dated the 19th February, 1969 of the Bombay High C':>urt in Second Appeal No. 480 of 1'68 ..

V. M. Tarkunde, S. Bhandare, P. H. Parekh ain.d Manju laitely, for the appellant.

Vl. S. Desai, S. B. Wad alnd Jaya/Jhree Wad, for the respondents.

The Judgment of the Court was delivered by

CHANDRACHUD, J .-This is a matrimonial dispute arising out of a petition filed by the appellant for annulment of his marriage with the respondent or alternatively for divorce or for judicial separation. The annulment was sought on the ground of fraud, divorce on the ground of unsoundness of mind and judkial separation on the ground of cruelty .. ·

The spouses possess high academic qualifications and each one claims a measure of social r-espectability and cultural sophistry.

The evidern:e shows some traces of these.

But of this there need be no doubt : the voluminous record which they have collectively built up in the case contains a fair' reflection of their rancour and acrimony. ·

The appellant, Dr. Narayan Ganesh Dastane, passed his M.Sc. in C Agriculture from the Poona University. He was sent by the Government of India to Australia in the Colombo Plan Scheme.

He obtained his Doctorate in Irrigation Research from an Australian Univerity and returned to India in April, 1955.

He worked for about 3 years as an Agricultural Research Officer and in October, 1958 he left. Podaa to take charge of a new post as an Assistant Professor of Agronomy in the Post-Graduate School, Pusa Institute, Delhi.· At present be is said fo D be working on a foreign assignment. His father was a solicitor-cum lawyer practising in Poona.

The respondent, Sucheta, comes from Nagpur but she spent her formative years mostly in Delhi.

Her father was transferred to Delhi in 1949 as an Under Secretary in the Commerce Ministry of the Government uf India and she came to Delhi along with the rest of the family. . E She passed her B.Sc. from the Delhi University in 1954 and spent a year in fapan where her father was attached to the Indian Embassy. After the rift in her marital relations, she obtained a Master's Degree in Social Work.

She has done field work in Marriage Conciliation and Juvenile Delinquency .. She is at present working in the Commerce and Industry Ministry, Delhi.

In April, 1956 her parents arranged her marriage with the appellant But before finalising the proposal, her father-B. R. Abhyankar-- wrote two letters to the appellant's father saying in the first of these that the respondent "had a little misfortune before going to Japan in that she had a bad attack of sunstroke which affected her mental condition for sometime''.

In the second letter which followed at an interval of two days, "cerebral malaria" was mentioned as an additional reason of the mental affectation.

The letters stated that after a course of treatment at t'he Yeravada Mental Hospital, she was cured : "you find h~:r as she is today''.

The respondent's father asked her appellant's father to discuss the matter, if necessary, with the doctors of the Mental Hospital or with one Dr. 'P. L. Deshmukh, a relative of the respondent's mother.

The letter was written avowdcly in order that the appellant and his people "should not be in the dark about an important episode"

in the life of the rnspondent, which "'fortunately, _had ended happily''.

Dr. Deshmukh confirmed what was stated in the letters and being content with his assurance, the appellant and his father made no enqui-

N. G. DASTANE v. SUCHETA (Chandradhud, J.) 971

A ries with the Yeravada Mental Hospital.

The marriage was performed at Poona on May 13, 1956.

The appellant was then 27 and the respondent 21 years of age.

They lived at Arbhavi in District Belgaum from June to October, 1956.

On November 1, 1956 the appellant was transferred to Poona where the two lived together tilll958.

During this period a girl named Shubha was born to them on March 11, 1957.

The respondent delivered in Delhi where 'her parents lived and returned to Poona in June, 1957 after an absence, normal on such occasions, of about 5 inonths.

In October, 1958 the appellant took a job in the Pusa Institute of Delhi.

On March 21, 1959 the second daughter, Vibha, was born.

The respondent delivered at Poona where the appellant's parents lived and returned to Delhi in August, 1959. Her parents were living at this time in Djakarta, Indonesia.

• In January, 1961, the respondent went to Poona to attend the marriage of the appellant's brother, a doctor by profession, who has been givcn'an adoption in the Lohokare family.

A fortnight after the marriage, on February 27, 1961 the appellant who had also gone to Poonu for the marriage got the respondent examined by Dr. Seth, a Psychiatrist in charge of the Yeravada Mental Hospital.

Dr. Seth probably wanted adequate Llata to make his diagnosis and suggested that he would like lo have a few sittings exclivcly with the respondent.

For reaso;1s good or bad, the respondent was averse to submit herself to any such scrutiny.

Either she herself or both she and the appellant decided that she should stay for some time with a relative of hers, Mrs. Gokhalc.

On the evening of the 27th, she packed her tit-bits and the appellaI't reached her to Mrs. Gokhalc's house.

There was no consultation thereafter with Dr. Seth.

According to the appellant, she had promised to se Dr. Seth but she denies that she made any such promise .. She believed that the appellant was building up a case that she was of unsound mind and she W!\S being lured to walk into that trap.

Fcbraa,> 27, 1961 was the last that they lived together.

But on the d"; of pailing she was three months in t'he family way.

The third ch .. le, agai1~ ;1

gir~ named Pratibha was born on August 19, 1961 when hi!: p8rc•1cs were in the midst of a marital crisis.

Things had by the, n come to an impossible pass.

And close relatives instead of offering wise counsel were fanni•ag the fire of discord that was devouring the mariage. A gentleman called Gadre . whose letter-head shows an "M.A. (Phil.) M.A. (Eco.) LL.B.", is a maternal uncle of the respondent.

On March 2, 1961 he had written to the appellant's father a pseudonymous letter now proved to be his, full of malice and sadism.

He wrote :

"I on my part consider myself to be the father of'Brahmadev'. . ......... This is only the beginning.

From the . spark of your foolish and half-baked egoism, a big conflagration of family quarrels will break out and all will perih therein; This image of the mental agony suffered by all your kith and kin gives me extreme happiness. . . . . . You worthless -person, who cherishes a desire to spit on my face, now behold that all the world is going to spit on your old cheeks.

So why should I loose the opportunity of giving you a few severe slaps on your cheeks and of fisting your ear. It is my earnest desire that the father-in-law should beat your son with foot-ware in a public place." ·

On March 11, 1961 the appellant returned to Delhi all alone. Two days later the respondent followed him but she went straight to her parents' house in Delhi. On the 15th, the appellant wrote a letter to the police asking for protection as he feared danger to his life from the respondent's parents and relative.s.

On the 19th, the respondent saw the appellant but that only gave to the parties one more chance to give vent to mutual dislike and distrust. After a brief meeting, she left the broken home for good. On the 20th, the appellan_t once again wrote to the police renewing his request for protection.

On March 23, 1961 the respondent wrote to the appellant complaining against his c:onduct and asking for money for the maintenance. of herself and the daughters.

On May 19, 1961 the respondent wrote a letter to the Secretary, Ministry of Food and Agricultur.e, saying that the appella:nt had deserted her, that he had treated her with extreme cruelty and asking that the Government should make separate provision for ber . .maintenance. On March 25, her statement ':Vas recorded by an Assistant Superintendent of Police, in which she alleged desertion and ill-treatment by the appellant. Further statvnents were recorded by the police and the Food Ministry also followed up respol,1dent's letter of

, May 19 but ultimately nothing came out of these complaints and crosscomplaints-.

As stated earlier, the third daughter, Pratibha, was born on August 19, 196!. On November 3, 1961 the appellant wrote to respondent's falber compllJining of respondent's conduct and expressing regret that not even a proper invitation was issued to him when the naming ceremony of the child was performed.

On December 15, 1961 the appellant wrote to respondent's father stating that he had decided to go to the court for seeking sq:w-ation from the respondent. The proceedings out of which this appeal arises were instituted on February 19, 196Z.

The parties are Hindus but we do not propose, as is commonly done and as has . \)cen done in this case, to describe the respondent as a "Hindu wife" in contrast to non-Hindu wives as if women professing this or that particular religion are exclusively privileged in the matter of good sense, loyalty and conjugal kindness. Nor .shall we refer to the appellant as a "Hindu husband" as if that species unfailipgly projects the. image of tyrant husbands.

We propose to consider the evidence on its merits, remembering of course the peculiar habits, ideas, susceptibilities and expectations of persons belonging to the strata of society to which thes.-, two belong.

All circumstances which CODStitute the occasion err settiq for. the conduct complained of have releVance but

we think that no wumpti.On. can be made that. respondeM is the oppressed and appellant the QPl)l'essor. The evidence m any case ought to

bear a secular examination. The appe'llal\t iasked f0r annulment of his marriage by a decree of nullity under section 12(1) (c) of 'The Hindu Marirage Act', 2S of

N. G. DAST.ANE v. SUCHETA (Chandrachud, !.) 973

1955, ("The Act") on the ground that his consent to the marria11:e was obtained by fraud.

Alternatively, he asked.for divorce under section 13 ( 1) (iii) on the ground that the respondent was incurably of unsound mind for a continuous period of ot less than three years immediately preceding the presentation of the petition. Alternatively, the appellant asked for judicial separation under section 10 (1) (b) on the ground <hat the respondent had treated him with such cruelty as to cause a reasonable apprehension in his mind that it would be harmful or injurious for him to live with her.

The appellant alleged that prior to tlie marriage, the nispondent was treated in the Yeravada Mental Hospital for Schizophrenia but her father fraudulently represented that she was treated for sun-stroke and cerebral malaria. The trial court rejected this contention. It also rejected the contention that the respondent was of unsound mind.

It, however, held that the respondent was guilty of cruelty and on that grouni it passed a decree for judicial separation.

Both sides went in appeal to the District Court which dismissed the appellant's appeal and allowed the respondent's.._ with the result that the petition filed by the appellant stood wholly dismissed.

The appellant then filed Second Appeal No. 480 of 1968 in the Bombay High Court. A learned single Judge of that court dismissed that appeal by a judgment dated February 24, 1969. This Court granted to the appellant special leave to appeal, limited to the question of judicial separation on the ground of cruelty.

We are thus not concerned with the question whether the appellant's consent to the marriage was obtained by fraud or whether the respondent had been of unsound mind for the requisite period preceding the presentation of the petition. The decision of the High Court on those questio',1s must be treated as final and can not be reopened.

 In this appeal by special leave, against the judgment rendred by the High Court in Second Appeal, we would not have normally per-: mitted the parties to take us through the evidence in the case. Sitting in Seond Appeal, it was not open to the High Court itself to reappreciate evidence. Section 100 of the Code of Civil Procedure restricts the jurisdiction of the High Court in Second appeal to questions of law or to substantial errors or defects in the procedure which may possibly have prOduced error or defect in the decision of the case upon the merits. But the High Court came to the conclusion that both the courts below had "failed to apply the correct principles of law in determining the issue of cruelty". Accordingly, the Hih Court proceeded to consider the evidence for itself and came to the conclusion independently that the appellant had failedto establish that the respondent had treathint with cruelty. A careful consideratio.n of the evidence by the High Court ought to be enough assurance that the finding of fact Is correct

and it is not customary for this Court in appeals under Article 136 of the Constitution to go into minute details rl evidence and weieb them one a1minst the other, as if for the firqt time. Disconcertingly, this normal process is beset with practical difficultfes.

SUPREME J:OURT REPORTS ll 97 SJ 3 s.c.R.

ln judging of the conduct of the respondent, the High Court assumed that the words of abuse or insult used by the respondent

"could not have been addressd in vacuum.

Every abuse, insult, remark or retort must have been probably in exchange for remarks and rebukes from the husband ............ a court is bound to consider the probabilities and infer, as I have done, that they must have been in the context of the abuses, insults, rebukes and remarks made by the husband and without evidence on the record wjth respect to the conduct of the husband in response to which the wife behaved in a particular way on each occasion, it is difficult, if not impossible to draw inferences against the wife."

We find this approach difficult to accept.

Under section 103 of the Code of Civil Procedure, the High Court may, if the evidence on the record is sufficient, determine any issue of fact nece~a.ry for the disposal of the appeal which has not been determined by the lower appellate court or which has been wrongly determined by such court by reason of any illegality, omission, error or defect such as is referred to in sub-section (1) of section 100.

But, if the High Court takes upon itself the duty to determine an issue of fact its power to appreciate evidence would be subject to the same restraining conditions to which the power of any court of facts is ordinarily subject.

The limits of that power are not wider for the reason that the evidence is being appreciated by the High Court and not by the District Court. While appreciating evidence, inferences may and have to be drawn but courts of facts have to remind themselves of the line that divides an inference from guesswork. If it is proved, as the High Court thought it was, that the respondent had uttered: words of abuse and insult, the High Court was entitled to infer that she had acted in retaliation, provided of course there was evidence, direct or circumstantial, to justify such an inference.

But the High Court itself felt that there was no evidence on the record with regard to the conduct of the husband in response to which the wife could be said to have behaved in the particular manner.

The High Court reacted to this siuation by saying that since there was no evidence regarding the conduct of. the husband, ''it is difficult, if not impossible, to draw inferences against the wife". If there was no evidence that flle husband had provoked the wife's utterances, no inference could be drawn against the husband.

There was no question of drawing any inferences against the wife because, according to the High Court, it was established on the evidence that she had uttered the particular words of abuse and insult.

The _approach of the High Court is thus erroneous and its fiadings are vitiated.

We would have normally remanded the matter lo the High Court for a fresh consideration of the evidence but this proceeding has been pending for 13 years and we thought that rather than delay the decision any further, we should undertake for ourselves the task which the High Court thought it should undertake under section 103 of the Code.

That makes it necessary to consider th~ evidence in the case.

N. (;. DAST.ANE v. 'SUCHETA ( Chandrachud, J.) 975

But before doing so, it is necessary to clear the ground 'of certain misconceptions, especially as they would appear to have intluencedthe

judgment of the High Court. . First, as to the nature of.burden of proof which rests on a petitioner in a matrimonial petition under the Act.

Doubtless, the burden must lie on the petitioner to establish his or her case for, C?rdinarily, the .bujden lies on the party which affirms a fact, not on the'party which denies it.

This principle accords with commonsense 'as it is so much earier to prove a positive than a negative. The petitioner must therefore prove that the responoent . has treated him with cruelty within the meaning of section 10(1) (b) .of the A.ct.

But does the law require, as the High Court has held, that the petitioner must prove his case beyond a reasonable doubt?

In . other ', words, though the burden lies on the petitioner to establish the charge of cruelty, what is the standard of proof to be applied in order l0 judge whether the burden has been discharged ? .

The normal rule which governs civil proceedings is that a fact can be said to be estabilshed if it is proved by a preponderance of probabilities.

This is for the reason that under the Evidence Act, section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

The belief regarding the existence of a fact may thus be founded on a balance of probabilities.

A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he tinds that the preponderance is in favour of the existence of the particular fact.

As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved.

The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle.

The impossible is weeded out at the first stage, tbe improbable at the second.

Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities Jie3.

Important issues like those which affect the status of parties demand a closer scmtiny than those like the !Dan on a promissory note : "the nature and gravity of an issue necessarily cietermines the manner of attaining reasonable satisfaction of the truth of the issue" ( l) ; or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear" (2).

But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged.

Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal . trials or trials involving inquiry into issues of a quasi-criminal nature.

A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable,

(I) Per Dixon, J. in Wright v. Wright {1948) 77 C.L.R. 191 at p. 210.

(2) Blyth-;. Blyth, [1966] 1 A.E.R. 524 at 536.

not a vascillating, mind cannot find where the . preponderance:: lies, . a A . doubt arises regarding the existence of the fact to be proved and .the ·

benefit of such reasonable doubt goes to. the accused. ' It is wrong to import such considerations in' trials of a purely civil nature. . ·.

~ . . . Neither •ectio~ 10 ofthe Act which enuil\erates the grounds .'n which a petition for judicialseparation may be Presented nor section 23 which governs the jurisdiction of the court to pass a decree in any pro- B ceeding under the Act requires that the petitioner must prove his case beyond a reasonable doubt; Section 23 confers on the court the power to pass a decree if it is "satisfied" on.matters. mentioned in clauses (a) to (e) of the section.

Considering that proceedings under. the Act are essentially of a civil nature, the word "satisfied" must mean "satisfied on a prepd.:iderance of probabilities'.' and not '.'rntisfied beyond a reasonable doubt''. Section 23 does not alter the standard of proof in C civil cases. · ·

. The ntlsconception regarding the standard, f proof in matrimonial cases arises perhaps from a loose description of the respondent's conduct in such cases as constituting a "matrimonial offence", Acts of a spouse which are calculated to impair the integrity of a marital union have a social significance. To marry or not to marry and if so whom, may well be a private affair but the freedom to break a matrimonial tie is not. The society has: a stake in the institution of marriage and there-. fore the erring spouse is treated not as a mere defaulter but as an. offender. But this social philosophy; though it may have a bearing on the need to have the clearest proof of an allegation before it is accepted as a ground fpr the dissolution of a marriage, has no bearing on the standard of proof in matrimonial cases. . ' . . .

In Enand, a view was at one time taken that the petitioner in a m:itrhnorual petition must establish his case beyond a reasonable doubt but in Blyth v. Blyth(1), the House of Lords held by a majority that so far as the grounds of divorce or the bars to divorce like connivance or condonatlcin are concerned, "the case, Jike any civil case, may be proved by a preponderance of probability". The High Court of Austraila in Wright v. Wright('), has also taken the view that "the civil and not the criminal standard of persuasion applies to matrimonial causes, includ- ing issue~ of adultery" •. The Hiizh Court was therefore in error in hold~ ing that the petitioner must establish the charge of cruelty "beydnd reasonable doubt''. The High Court adds that "This must be in accor . dance with the law of evidence"; but we are not clear as to the implications of this observation.

 Then, as regards the meaninji of "Cruelty''. The High Court on this question begins with the decision in Moonshee Bazloor Rubeem v.

Shamsoonnissa Begum(8), where the Privy Council observed : ' ·

"The Mohomedan law, on a question of what is legal

cruelty between Man and Wife, would probably not differ materially from our own of which one of the most recent ex- H posit!on is the fo)J.owing :~ 'There must be actual violence

(I.) [196(;1 A. E.R. S24 at S36. ,

(2) 1948, 77 C.L.R. 191at210.

(3) II Moore's Indian Appeals SSI.

N. G. DASTANE V. SUCHETA ·(ChandrMJzud, J.) 977

of such a character as to endanger personal health or safely; or there Must be a .reasonable apprehension 01 it'."

Ti1~ High Court then refers to the decisions of some of the Indian Courts to illustrate ''The march of the Indian Courts with the Englishs Courts" arid cites the following passage from D. Tolstoy's ''The Law and Practice of Divorce and Matrimonial Causes" (Sixth Ed., p: 61):

"Cruelty which is a ground for dissolution of marriage may be defined as willul and unjustifiable .:onduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger." ·

The High Court concludes that "Having regard to these prmctples and the entire evide.,1ce in the.case, in my judgment, I find that none of tbe.

acts complained of against the respondent can (:le considered to be so sufficiently grave and weighty as to b~ described as cruel according to the matrimonial law."

An awareness of foreign decisions could be a useful asset in interpreting our own laws.

But it has to be remembered that we have to interpret in this case a specific provision of a specific enactment, namely, section 10(1) (b) of the Act.

What constitutes cruelty must depend upon the terms of this statute which provides : . . . "10(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party...:.. ·

(b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party;"

1 he inquiry therefore has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it wil! be harmful or injurious .for him to live

with the respondent. Jt is not necessary, as under the English law, that the cruelty must be of such a character as to cause "danger" to life, limb or health or as to give rise to a reasonable apprehension of such a danger.

Clearly, danger to life, limb or health or a reasonable apprehcn>ion of jl is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to Jive with the other.

 The risk of relying on English decisions in this field may be shown by the Icarnd Judge's reference to a passage from Tolstoy (p. 63) in which the karned author, citing Horton v. Horton( I), says : ·

"Spouses take each other for better or worse, and it is not enough to show that they find life_ together impossible, even if there results injury to health." ~~

(I) (1940] P. 187. 16-564 Sup. Cl/7S

J1 the danger to health arises merely from the fact that the spouses find it impossible lo live together as where one of the parties sn.:iws an attitude of indifference to the other, the charge of cruelty may perhaps fail.

But under section 10(1) (b), harm or injury to health, repmation, the working career or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty.

Plainly, what we must determine 1s not whether the petitioner has proved the charge of cruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonabk: apprehension in his mind that it will be harmful or injurious for him to live with the respondent.

One other matter which needs to be clarified is that though under section 10 ( 1) (b), the apprehension of the petitioner that it will be harmfu/, or injurious to live with the other party has to be reasonable, it is wrong, except in the context of such apprehension, to import Lhe concept of a reasonable man as known to the law of negligence for judgmg of matrimonial relations.

Spouses are undoubtedly supposed and expected to conduct their joint venture as best as they mig:1t but it is no function of a court inquiring into a charge of cruelty to philosophise on the modalities of married life.

Some one may want to keep late hours to finish the day's work and some one may want to get up early for a morning round of golf.

The court cannot apply to the habits or hobbies of these the test whether a reasonable man situated similarly will behave in a similar fashion. "The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determmed primarily by its effect upon the particular person complaining of the acts.

The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse.

Tha' which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances."(!) The Court has to deal, not with •a.n ideal hu<band and a•a ideal wife .(assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a mattimonial court for, even if they may not be able to drown their differences. their ideal attitudes may help them overlook or gloss over mulual faults and failures. As said by Lord Reid

i~1 his speech in Gollins v. Gollins(2).

"In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence.

We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better.

In cruelty cases one can hardly ever even start with a presumption that the parties a;.ereasonable people, because it is bard to imagine anv cruelti case ever arising if both the spouses think and behave as reasonable people." We must therefore try and understand this Dr. Dastane and his wife Sucheta as nature has made them and as they have shape~ their lives.

(1) American Jurisprudence, 2nd Ed., Vol. 24, p. 206.

(2) [1963] 2 A .E.R. 966, 970.

N. G. DASTANE v. SUCHETA (Chandrachud, !.) 979

The op\y rider is the interdict of section 23(l)(a) of the Act that the relief prayed for can be decreed only if the court is satisfied that the petitioner is not in any way taking advantage of bis own wrong.

Not otherwise.

We do not propose to spend time on the trifles of their married life.

Numerous jncidents have been cited by the appellant as constituting cruelty but the simple trivialities which can truly be described as the reasonable wear and tear of married life have to be ignored. It is in th;; con' ext of such trivialities that one says that spouses take each other for better or worse. In many marriages each party can, if it so wills,

discover many a cause for complaint but such grievances arise mostly from temperamental disharmony.

Such disharmony or incompatibility is not cruelty and will not furnish a cause for the dissolution of marriage.

We will therefore have regard only to grave and weighty incidents and consider these to find what place they occupy on the marriage canvas.

The spouses parted company on February 27, 1961, the appellant filed his petition on February 19, 1962 and the trial began in September. 1964.

The 3t years' separation must naturally have created many more misunderstandings and further embitterment.

In such an atmosphere, truth is a common casualty and therefore we consider it safer not to accept tl; e bare word of the appellant either as to what the respondent said or did or as to the genesis of some of the more serious incidents.

The evidence of the respondent too would be open to the same criticism but the explanation of her words and deeds, particularly of what she put in cold print, must come from her oral word and that has to be examined with care.

The married life of these spouses is well-documented, almost incredibly documented.

They have reduced to writing what crossed their minds and the letters which they have written to each other bear evidence of the pass to which the marriage had come.

Some of these were habitually written as the first thing in the morning like a morning cup of tea while some were written in the silence of mid-night soon after the echo of harsh ·.vords had died down.

To think that this young couple contd indulge in such an orgy of furious letter-writing is to have to deal with a problem out of the ordinary for it is seldom that a husband and wife, while sharing a common home, adopt the written word as a means of expression or communication.

The bulk of the correspondence is by the wifo who seems to have a flair for letter-writing.

She writes, in some style and as true as "The style is the man", her letters furnish a clue to her personality.

They are a queer mixture of confessions and opprobrious accusations. It is strange that almost every one connected with thi~ couple h'ls a penchant for writing. The wife, apart from her voluminous letters, has written an autobiographical account of her unfortunate experiences in the Yeravada Hospital, calling it "Mee Antaralat Tarangat Asta.,

("while I was floating in space").

Th~ husband's father idealised the Shiva-Parvati relationship in a book called : "Gauriharachai Goad Kahani" ("The sweet story of Gaurihar").

Quite a few of the wife's relatives including a younger sister of hers and of eourse her maternal

uncle have set their pen to paper touching some aspect or the other of her married life. Perhaps, it was unfortunate that the promised milknnium that did not come began with a letter. That was the letter of Apnl 25, 1956 Which t11e wn'c's lather wrote to the husband's father while the marriage negotiations were in progress.

The marriage took place on May 13, 1956.

Nothing deserving any serious notice happened till August, 1959

xcept that the letters Exs. 556, 238, 243 and 244 show that quite frequently the respondent u:sed to get into fits of temper and say things for which she would express regret later. In the letter Ex. 556 dated November 23, 1956 she admits to having behaved "'very badly"; in Ex. 238 dated March 26, 1959 she admits that she was behaving like an ''evil star" and had harassed the appellant; in Ex. 243 dated May 5, l 959 she says that she was aware of her "lack of sense" and asks for forgiveness for having insulted the appellant, his parents, his sister and her husband; and in Ex. 244 dated May 22, 1959 she entreats the appellant that he houlid not feel guilty for the insults hurled by her at his parents.

The period fr-om August 195~> to March 1960 was quite critical and the correspondence covering that period shows that an innate Jack of self-control had driven the respondent to inexorable conduct.

By the letter. Ex. 256 dated February 16, 1960 the appellant complained to the respondent's father who was then in Indonesia that the respondent kept on abu5ing him, his parent and sister and that he was extremely unhappy. The appdlant says in the letter that differences between a husband and wife were understandable but that it was impossible to tolerate the respondent constantly accusing him and his relatives of wickedness.

The appellant complains that the respondent used to say that the book written by his father should be burnt to ashes, that the ilPPellant hould apply the ashes to his forehead, that the whole Dastane family was utteriy mean and that she wished that his family may be mrerly ruined.

The appellant was gravely hurt at the respondent's allegation that his fath.:r's 'Sanad' had been once forfeited.

The appellant tells the respondent's father that if he so desired he could ask her whether anything stated in the Jetter was untrue and that lie had conveyed to her what he was stating in the letter. It may be stated that the respondent admits that the appellant had shown her this Jetter before it v.as posted to her father.

On March 21. 1960 the respondent wrote a letter (Ex. 519\ to the appellant's parents admitting the truth of the allegations made by the appellant in Ex. 256.

On June 23, 1960 the respondent made a noting in her own hand tating that she had accused the appellant of heing a person with a beggarly luck, that she had said that the food eaten at l11s house, instead of heing digested would cause worms in the stomach and that she had given a rbrl'at : "murder hall be avenged wltl\ murder''.

During June 1, 1960 to December 15, 1960 the marital relations were subjected to a stress and strain which ultimately wrecked the marriage.

In about September, 1960 the appellant's father probably offered to mediate and asked the appellant and the respondent to submit to him theii' respt', ctive complaints in writing. . The appellant's bill of complaints is at Ex. 426 dated October 23, 1960.

The letter much

N. G. DASTANE v. SUCHETA ( Chandrachud, J.) 981

too long to be reproduced, contains a sorry tale.

The gist of the more unportant of the appellant's grievances m regard to the period prior to June, 1960 is this : (1) The respondent used to describe lhe appellant's

moher as a. boorish woman; (2) On the day of 'Paksha' (the day 011 whrch oblations are offered to ancestqrs) she used_ to abuse the ancestors of the appellant; (3) She tore off the 'Mangal-Sutra'; (4) She beat the daughter Shubha while she was running a high temperature of 104';

( 5) One night she started behaving as if she was 'possessed'. She tore off .the Mangal-Sutra once again and said that she w:ill not put it on agam; and ( 6) She used to switch on the light at midnight and sit by the husband's bedside nagging him through the night, as a result he literally prostrated himself before her on several occasions.

'Jhe gist of the incidents from May to October, 1960 which the appellant describes as 'a period of utmost misery' is this. ( l) The respondent would indulge in every sort of harassment and would blun out anything that came to her mind; (2) One day while a student l)f the appellant called Godse was sitting in the outer room she shouted : ''You are not a mr .. 1 at all"; t 3) Jn the heat of anger she used to say tbat she would pour kerosene on her body and would set fire to herself and tl1e house; ( 4) She used to lock out the appellant when he was due to return from the office.

On four or five occasions he had to go back to the office without taking any food; (5) For the sheer sake of harassing him she would hide _his shoes, watch, keys and other things.

The letter Ex. 426 concludes by saying :

"She is a hard headed, arrogant, merciless, thoughtless, unbalanced girl devoid of sense of duty.

Her ideas about a husband are : He is a dog tied at doorstep who is supposed to come and go at her beck \nd call whenever ordered.

She behaves with the relatives of her husband as if they were her servants.

When I see her besides herself with fury, I feel afraid that she may kill me at any moment.

I have become weary of her nature of beating the daughters, scolding and nagging me every night uttering abuses a!nd insults."

Most of these incidents are otherwise supported, some by the admissions of the respondent herself. and for their proof we do not have to .accept the bare word of the appellant.

On July 18. 1960 the respondent wrote a letter (Ex. 27 4) to the appellant admitting that within the hearing of a vi<:itor she had beaten the daughter Shubha severely.

When the appellant protested she retorted that if it was a matter of his prestige, he should nnt have pro- . created the children.

She has also admitted in this letter that in relation to her daughters she had said that there will be world deluge because of the birth of those "ghosts".

On or abllut Julv 20. 1960 she wrote another letter (Rx 275) tn the applla.nt admitting that she had described him as "a monster in a human body". that she bad said that he should not have pror, reated chil<iren. that he should "Pickle them and preserve them in a iar" and that •he h<1cl give" a thr,,.t hat she would see to it that he loses his job and then she would publish the news in the Poona newspapers.

On. Dcember 15, 1960 the appellant wrote a

letter (Ex. 285) to the respondent's father .:omplaining of the strange and cruel behaviour not only of the respondent but uf her inothet.

He says that the respondent's mother used to threaten him that since she was the wife of an Under Secretary she knew many 1mponam persons and could get him dismissed from service, that she used w pry into his correspondence in his absence and that she even went w the lengd1 of saying that the respondenl ought to care more for her parents because she could easily get another husba.id but not another pair or parents.

The respondent then went to Poona for the appellant's brother's marriage, where she was examrnt:d by Dr. Seth of the Ycravada Hospital and the spouses parted company on February 27, 1961.

The correspondence subsequent to February 27, l96i shall have to be considered later in a different, tbough a highly important, context.

Some of those letters clearly bear the stamp of being written under le,'lal advice.

The parties had fallen out for good and the domestic war having ended inconclusively they were evidently preparing ground for a legal battle.

In regard to the conduct of the respondent as reflected in her admissions, two contentions r:iised on her behalf must be .; onsidered. It is urged in the first place that the various letters containing admissions were written by her under coercion. The; e is no substance in this contention. n her written statement, the respondent alleged that the appellant's parents had coerced her into writing the letters. At the trial she shifted her ground a 11d said that the coercion proceeded from the appellant himself. That apart, at a time when the marriage had gone asunder and the respondent sent to the appellant formal letters resembling a lawyer's notice, some of them by registered post, no all~ gation was made that the appellant or his parents had obtained written admissions from her.

Attention may be drawn in this behalf to the lette:s Exs. 299 and 314 dated March 23 and May 6, 1961 or to the elaborate complaint Ex. 318 dated May 19, 1961 which she made to the Secretary to Governmnt of India, Ministry of Food and Agriculture. Prior to that on September 23, 1960 she had drawn up a list of her complaints (Ex. 424) which begins by saying : "He has oppressed me in numerous ways like the following." But she Joes not speak therein of any admission or writing having been obtained from her. Further, letters like Exs. 271 and 272 dated respectively June 23 and Jul) 10, 1960 which besides containing admissions on her part also contain allegations against the appellant could certainly not have been obtained by coercion. Finally, considering that the respondent was always surrounded by a group of relatives who lnd assumed the role of marria!!e-counsellors, it is unlikely that any attempt to coerce her into making admissions would have been allowed to escape unrecorded.

After all, the group here consists of greed' letter-writers.

The second contention regarding the admissions of th~ respcrndent . is founded on the provisions of s1~Ction 23(1)(a) cf the Act under which the court cannot decree relief unless it is satisfied that "the petitioner is not in any way taking advantage of his own wrong".

The fulfilment of the conditions mentioned in section 23(1) is so imperative

N, G. DASTAN:> v. SUCHETA (Chandrachud, /.) . 983

A that the legislature has taken the care to provide that "then, and in such a case, but not otherwise, the court shall decree such relief accordingly". It is urged that the appellant is a bigoted and egocentric person who demamled of his wife an impossibly rigid standard of behaviour and the wife's conduct must be excused as being in selfdefence.

In other words, the husband is said to have provoked the wife to say and act the way she did and he cannot be permitted to B take advantage of his own wrong. The appellant, it is true, seems 'l stickler for domestic discipline and these so-ca:lled perfectionists can be quite difficult to live with. On September 22, 1957 the respondent made a memorandum (Ex. 379) of the instructions given by the appellant, which makes interesting reading :

"Special instructions given by my husband.

(1) On rising up in the morning, to .look in the mirror.

(2) Not to fill milk vessel or tea cup to the brim.

(3) Not to serve meals in brass plates cups and vessels.

(4) To preserve carefully the letters received and if addresses of anybody are given therein to note down the same in the note book of addresses.

(5) After serving the first course during meals, not to repeatedly ask 'what do you want?' but to inform at the beginning of the meals how n; mch and which are the courses.

(6) As far as possible not to dip the fingers in any utensils.

(7) Not to do any work with one hand.

(8) To keep Chi. Shuba six feet away from the primus stove and Shegari. ·

(9) To regularly apply to her 'Kajal' and give her tomato

juice, Dodascloin. etc.

To make her do physical exercise, to take her for a walk and not to lose temper with her for a year.

(10) To give him his musts and the things he reqaires when he starts to go outside,

(11) Not to talk much.

(12) Not to finish work somehow or the other; for example to write letters in good hand writing, to take a good paper, to write straight and legibly in a line.

(13) Not to make exaggerations in letters.

(14) To shew imagination in every work. Not to note down the milk purchased on the calendar."

sUf>nEMI! C..oultT REPORTS C19751 3 s.c.R.

Now, this was utterly tactless but one cannot say that it called for any attack in self-defence. The appellant was then 28 and the respondenc 22 years of age. In that early-morning flush of the marriage, young men and wO'lllen do entertain lavish expectations of each other and as Yt1ars roll by they sec the folly of their ways. But we do not thintt that the wife was really offended by the instructions given by the appellant. The plea of self-defence seems a clear after.-thought whil.:h took birth when there was a fundamental failure of faith and understanding.

Reliance was then plaoed on certain letters to show that the husband wanted to assert his will at any cost, leavin,11 the wife no option but to retaliate. We see no substance in this gnevance either.

The plea in the written statement is one of the denial of conduct alleged. and not of provocation. Secondly, there are letters on the record by which the wife and her relatives had from time to time complimented the husl:?and and his parents for their warmth, patience and understanding.

Counsel for the n:spondent laid great emphasis on the letter, Ex. 244 dated May 22, 1959 written by her to the appellant in which she refers to some "unutterable question" put by him to her. It is urged that the appellant was pestering her with a demand for divorce and the "unutt¢rable question" was the one by which he asked for qivorce.

No such inference can in our opinion be raised. The respondent has not produced the letter to which Ex. 244 is reply; in the written statement there is hardfy a suggestion that the appellant was askihg her for a divorce; and the appellant was not asked in his evidence any explanation in regard to the "unutterable question".

These defences to the charge of cruelty must accordingly be rejected.

However, learned counsel for the resP'ondent is right in. stressing the warning given by Denning L.J., in Kaslefsky v. Kaslefsky that : "If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament. This is an easy path to tread especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage i•self is imperilled." But we think that tO hold in this case that the wife's conduct does not amount to cruelty is to close for ever the door of cruelty so as to totally prevent any access thereto. This is not a case of mere austerity of temper, petulance of manners, rudeness of language or a want of civil attention to the needs of the husband and the household. Passion and petulance have perhaps to be suffered in silence as the mice of what turns out to be an iniudic!ous election of a partner. But the rrsnondent is atthe mercy of her mflex1ble temper. She c1elight~ in camin1r miery to her husband and his relation" and she willin•!lv suffers the cnlculnted insults which

er relatives hurled at him and his oarents : tlie f?lc acc11sation that, the oleader's Sanad of that old hag of your father was forfeited"· "I . want to see the ruination of the whole Dastane dynasty", "bun{

(1) [1950] 2 A.E.R. 398, 403.

N, G. DASTANE V. SUCHETA (Chandnichud, /.) 985

the book written by your father and apply the ashes to your forehead"; "you are not a man" conveying that the children were not his; "you are a monster in a human body". "I wiil make you lose your job and publish it in the Poona newspapers"-these and similar outbursts are not the ordinary wear and tear of married . life but they became, by their regularity a menace to the peace and well-being of the household.

Acts like the tearing of the Mafigal-Sutra, locking out the husband when he is due to return from the office, rubbing chillie powder on the tongue of an infant child, beating a child mercilessly while in high fever and switching on the light at night and sitting by the bedside of the husband merely to nag him are acts which tend to destroy the legitimate ends and objects of matrimony. . Asum ing that there was some justification for occasional sallies or show of temper, the pattern of behaviour which the. respondent generally adopted was grossly excessive.,

The conduct of the respondent clearly amounts to cruelty within the meaning of section: 10(1) (b) of the Act.· Under that provision, the relevant consideration is to see whether the conduct is such as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with the respondent. The threat that she will put an end of her own life or that she will set the house dn fire, the threat that she will make him lose his job and have the matter published in newspapers and the persistent abuses and insults hurled at the appellant and his parents are all of so grave an order as to imperil the appellant's sense of pers'Onal safety. mental happiness, job satisfaction and reputation. }Jer once-too-frequent apologies do not reflect genuine contrition but were merely impromptu device to tide over a crisis temporarily.

The next question for consideration is whether the appellant had at any time condoned the respondent's cruelty. Under section 23(1)

(b) of the Act, in any proceeding under the Act whether defended or not, the relief prayed for can be dee.reed' only and only if "where the ground 'Of the petition is cruelty the petitioner has not in any manner condoned the cruelty".

The respondent did not take up the plea in her written statement that the 'appellant had condoned her cruelty. Probably influenced. by that omission, the trial court did not frame any issue on condonation.

While granting a decree of judicial separation on the ground of cruelty, the learned Joint Civil Judge, Junior Division, Poona. did not arldress himself to the question of condonation. In aopeal. the learned Extra Assistant Judge, Poona. havin~ found that the conduct of the respondent did not amount to cruelty, the question of condonation did not arise.

The High Court in Second Aopeal confirmed the finding of the 1st Appellate Court on the issue of crueltv and it fur•her heM that in any case the alleged cruelty was condoned by the aooellant. The condonation. acconling to the Hi<!h Court, consisted in the circumstance that the spouses co-habited till February 27, 1961 and a child was born to them in August, 1961.

986 '.lUPREME COURT REPORTS [19751 3 s.c.R.

Before us, the question of condonation was argued by both the sides.

It is urged on behalf of the appelbnt that there is no

1 evidence of cundonation while the :rgument of the respondent is that .condonation is implicit in the act of co-habitation and is proved by the fact that on February 27, 1961 when the spouses par_ted, the respondent was about 3 months pregnant. Even though caadonation was not pleaded as a defence by the respondent it is our duty, in view of the provisions of section 23 ( l )(b), to find whether the cruelty was condoned by the appellant.

That section casts an obligation on the court to consider the question of condonation, an obligation which has to be discharged even in undefended cases.

The relief prayed for can be decreed only if we are satisfied "but not otherwise'', that the petitioner has not in any manner condoned the cruelty.

It.is, of course, necessary that there should be evidence on the record of the case to show that the appellant had cor.doned the cruelty.

Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occu- pied before the offence was committed.

To constitute condonation there must be, therefore, two things : forgiveness and restoration (1) .

The evidence of condo nation in this case is, in our opinion, s strong and satisfactory as the evidence of cruelty.

But that evidence floes not consist in the mere fact that the spouses continued to share a .common home during or for some time after the spell of cruelty.

Cruelty, generally, docs not consist of a single, isolated act but consists in niost cases of a series of acts spread over a period of time.

Law does not require that at the first appearance of a. cruel act, the other spouse must leave the matrimonial home lest the continued co-habitation be co\}strued as condonation.

Such a construction will hinder reconciliation and t!iereby frustrate the benign purpose of marriage laws.

The evidence of condonation consists here in the fact that

1 the $pouses led a normal sexual life despite the respondent's acts of cruelty.' This is not a ease where the spouses, after separation, indulged in 11 stray act of sexual intercourse, in which case the necessary intent to forgive and restore may be said to be lacking.

Such stray acts may bear more than one explanation.

But if during co-habitation the spouses, uointluenced by the conduct of the offending spouse, lead a life of intimapy which characterises normal m;1trimonial relationship, the intent to f<?rgive and restore the offending spouse to the original status may reasonably be inferred.

There is then no scope for imagining that the conception of: the child could be the result of a single act of sexual intercourse and that such an act could be a stark animal oact u'aaccompariied by the nobler grace.> of marital life.

One might then as well magine that the sexual act wo.s undertaken just in order to kill boredom or even in a spirit of revenge.

Such speculation is impermissible.

Sex ' plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment.

Therefore, evidence showing that the spouses led a normal sexual life everi after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty.

Intercourse, of course, is not a necessary ingre-

1. The Law and Practice of Divorce and Matrimonial Causes by D. Tolstoy Sixth Ed., p. 75. ·

1•. G. DASTANE v. SUCHETA (Chandrachud, J.) 987

A dient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home .. But intercourse in circumstances as obtain here would raise a strong inference of condonation with its dual requirement, forgiveness and restoration.

That inference stands unconiradicted, the appellant not having explained the B circumstances in which he came to lead and live a normal sexual life

rith the respondent, ewn after a series of acts of cruelty on her part.

But condonation of a matrimonial offence is not to be likened to a full Presidential Pardon under Article 72 of the Constitution which, once granted, wipes out the guilt beyond the possibility of revival.

Condonation is always subject to the implied condition that the offending spouse will not commit a fresh matrimonial offence, either" of the same variety as the one condoned or of any other variety. "No matri~ monial offence is erased by condonation.

It is obscured but not obliterated" { 1) • Since the condition of forgiveness is that no further mari monial offence shall occur, it is not necessary that the fresh offence should be ejusdem generis with the original offence( 2). Condoned cruelty can therefore be revived, say, by desertion or adultery."

Sec.tion 23 (1 ){b) of the A..:t, it may be urged, speaks of condonation but not of its revival and therefore the English doctrine of revival should not be imported into matters arising under the Act. Apparently, this argument may seem to receive some support from the circumstances that under the English law, until the passing ot the Divorce Reform Act, 1969 which while abolishing the traditional bars to relief introduces defences in the nature of bars, at least one matrimonial offence, namely, adultery could n.ot be revived if dace condoned(3 ). But a closer examination of such an argument would reveal its weakness.

The doctrine of condonation was established by the old ecclesiastical courts in Great Britain and was adopted by the English Courts from the canon Jaw. 'Condonation' is a technical. word which means and implies a conditional waiver of the right of the injured spouse to take matrimonial pro-. ceedings. It is not 'forgiveness' as commonly understood(4).

In England condoned adultery could not be revivea because of the expres~; provision contained in seetion 3 of the Matrimonial Causes Act, 1963 which wa., later incorporated into section 42(3) of the Matrimonial Caw; es Act, 1%5.

Ii1 the ab<encc of any such provision in the Act governing the charge of cruelty, the word 'condonation' must receive the meaning which it has borne for cnturies in the world of !aw(5). 'Condonation' under section 23(1) (b) therefore means conditional forgiveness, the implied condition being that no further matrimonial offence shall be committed.

(I) See Words and Phrases Legally Defined (Buttcrworlhs) 1969 Fd., Vol

J, p. 305, ("Condonation").

(2) See Halsbury's Laws of England, 3rd Ed., Vol. 12, p. 3061.

(3) See Rayden on Divorce, !Ith Ed. (1971) pp. 11, 12, 23, 68, 2403.

(4) See Words and Phrases Legally Defined.(Butterworths)

1969 Ed., p. 306 and the Cases cited therein.

(5) See Ferrers vs Ferrers (1791) I Hag. Con. 130 at pp. 130, 131.

It therefore becomes necessary to consider the appellant's argument that even on the assumption that the appellant had condoned the cruelty, the respondent by her subsequent conduct forfeited the conditional forgiveness, thereby reviving the original cause of action for judicial separation on the ground of crudty.

It is alleged that the respondent treated the appellant with cruelty during their brief meeting on March 19, 1961, that she refused to allow to the appellant any access to the children, that on May 19, 1961 she wrote a letter (Ex. 318) to the Secretary to the Government of India, Ministry of Food and Agriculture, New Delhi, containing false and malicious accusations against the appellant and his parents and that she deserted the appellant and asked the Government .to provide her with separate maintenance.

These facts, if proved, shall have to be approached and evaluated differently from the facts which were alleged to constitute cruelty prior to its condonation.

The incidents on which the appellant relied to establish the charge of cruel.ty had to be grave and weighty.

And we found them to be so.

In regard to the re!pondent's conduct subsequent to condonation, it is necessary to bear in mind that such conduct may r.ot be enough by itself to found a decree for judicial separation and yet it may be enough to revive the condoned offene. For example, gross familiarities short of 11dultery ( 1) or desertion for less than the statutory period(2) may be enough to revive a condoned offence.

The incident of March 19, 1961 is too trifling to deserve any notice.

That incident is described by the appellant himself in the complaint

(Ex. 295) which he made to th~ police on March 20, 1961. He says therem that on the 19th morning, the respondent went to his house with some relatives, that those relatives instigated her against him, that they entered his house though he asked them not to do so and that she took away certain household articles with her. As shown by her letter (Ex.

294) dated the 19th itself, the articles which she took away were some petty odds and ends like !{ doll, a slate, a baby hold-all, two pillows, a bundle of clothes and a baby-cart.

The police complaint made by the appellant betrays some hpersensitivity.

As regards the children, it does seem that ever since February 27, 1961 the appellant was denied a chance to meet them.

His letters Bxs. 307, 309 and 342 dated Ap; il 20, April 21 and November 23, 1961 respectively contiin the grievance that the children were deliberately not allowed to see him.

From his point of view the grievance could be real but then the children, Shubha and Vibha, were just 4 and 2 years .of age in February, 1961 when their parents parted company.

Children of such tender age need a great amount of looking after and they could . not have been sent to meet their father unescorted.

The one person who could so escort them was the mother who had left or had to leave the matrimonial h•.>me for good.

The appellant's going to the home of t-he rcpondenf's p; ircnt~ where sh~ wao. Jivinq W'l~ in the circumstances an imoracticable orooosition. 11ms, the wall that divided the parents denied to the appellant access to his children.

---·----·-- , J (I) H1lsoury's Law> of England, 3rd Ed., Vol. 12, p. 306, para 609. ,(2) Beard vs. Beard [1945) 2 A.E.R. 306.

N. G. DASTANE v. SUCHETA (Chandrachud, ]. )

PS 9

The allegations made by the respondent in her letter to the Government, Ex. 318 dated May 19, 1961 require a close consideration. It is a long letter, quite an epistle, in tune with the respondent's proclivity as a letter-writer. By that Jett, r, silt asked the Uovanmeut to provide separate maintenance for herself and the children.

The allegations contained in the letter to which the appellant's cou'ascl has taken strong exception are these : ( 1) During the period that she lived with the appellant, she was ubjected to great harassment as well a~ mental and physieal torture; (2) The appellant had driven her out of the house on Febmary 27, 1961; (3) The appellant had deserted her and had declared that he will not have any connection with her and that he will not render any financial help for the maintenance of herself and the children.

He also refused to give medical help to her in her advauced stage or pregnancy; ( 4) The appellant had denied to her even the barest necessities of life like fooj and clothing; (5) The parents of the appellant were wicked persons and much of her suffering was due to the influence which they had on the appellant; (6) The appellant used to threaten her that he would divorce her, drive her out of the house and even do away with her life; (7) The plan to get her examined by Dr. Seth of the Pcravada Meutal Hospital was an htsmcere, wicked and evil move engineered by the appellant, his brother and his father, (8) On her refusal to submit to the medical examination any further, she was driven out of foe house with the children after being deprived of the valuables on her person and in her possession; and (9) The appellant had subjected her to such cruelty as to cause a reasonable apprehension in her mind that it would be harmful or injurious for her to live with him.

Viewed in isolation, these allegations present a different aud a somewhat distorted picture.

For their proper assessment and understanding, it is necessary to consider the context in which those allegations came to be made.

We will, for that purpose, refer to a few letters.

On March 7, 196 l the respondent's mother's aunt, Mrs. Gokhak wrote a letter (Ex. 644) to the re8pondcut's mother.

The letter has some bearing on the events which happened in the wake of the separation which took place on February 27, 1961. It shows that the grievance of the respondent and her refatives was not so much that a psychiatrist was cdasulted as that the consultation was arranged without any prior intimation to the respondent. The letter shows that the appellant's

brother Dr. Lohokare, ancl his brother-in"law Deolalkar, expre:; sed re-· gret that the espondent should have been got examined by a psychiatrist without previous intimation to any of her relatives.

The letter speaks of a possibk compromise between the husband and wife and it sets out the terms which the respondent's relatives wanted to place befort: the appellant.

The terms were that the respondent would stay at her parents' place until her delivery but sh~ would visit the appellant off and on; that the children would be free to visit the appellant; and that in' case the appellant desired that the respondent should live with him, he should arrange that Dr. Lohokare's mother should stay with them in Delhi for a few days.

The last term of the proposed compromise was that instead of digging the past the husband and wife should

live in peace and happiness.

The letter bears mostly the handwritting

of the respondent herself and th~ significance of that . circumstance is that it was evidently written with her knowledge and consent.

Two tlimgs are dear trom the letter : one, that the repondent did not want to kave the appellant and two, that she did not either want to prevent the children from seeing the appellant. 'Ihe letter was written by one close relative of the respondent to •ancther in the ordinary course of events and was not, so to say, prepared in order to create evidence or to supply a possible defe1ace. It relkcts a genuine attitude, not a makebelieve pose and the feelings expresE1od therein were shared by the respondent whose handwriting the letter bears.

This letter must be read along with the letter Ex. 304 which the respondent sent to the appel1'ant on April 18, 1961. She writes :

"I was sorry to hear thst you are unwell and need treatment. 1 would always like never to fail in niy wifely duty of looking after you, particularly when you are ailing, bu! you will, no doubt, agree that even for this, it will not be possible for me to join you in the house out of which you have turned me at your father's i11stancc.

This is, therefore, just to keep y0u informed that if you come to 7 /6 East Patel Nagar, I shall be able to nurse you properly und my parents will ever be most willing to afford ihe necessary facilities under their care to let me carry out this proposal of mine."

There is no question that the respondent had no animus to dcc; ert the appellant and as stated by her or on her behalf more than once, the appellant had on February 27, 1961 reached her to Mrs. Gl1khalc's house in Poom. may be in the hope that she will co-operafe with Dr.

Seth in the psychlatric exploration.

She did not leave the house of her own volition.

But the appellant h; d worked himself up to believe that !he respondent had gone off her mind.

On March 15, 1961 he made a complaint (Ex. 292) to '.he Delhi Police wich begins with the recital that the respondent was in the Mentnl Hospital before marriage and that she needed treatment from a p'y<:11:trist.

He did say that the no''pondent was "a very loving and affectionate p'.'rson" but he qualified it by saying : "when excited, she appears t0 be a very dangerous woman, with confused thinking".

On April 20, 1961 the appeHant wrote a letter (Ex. 305) to the respondent charging her once again of being in an "unsound state of mind". The appellant declared by th1t letter that he will not be Ii.able for any expenses incurred by her during her stay in her parents' house.

On the same date he wrote a letter (Ex. 307) to the re, ponde1t's father reminding him that he, the appellant, had accepted a girl "who had returned from the Mental Hospital".

Q,1 April 21, 1961 he wrote a letter (Ex_ 309) to the Director of Social Welfare, Delhi Administra-· tion, in which he took especial care to declare that the respondent "was in the Poona Mental Hospital as a lunatic before the marriage".

The relevance of these reiterations regarding the so-called insanity of th!:

... -

N. G. l>ASTANE v. SUCHETA (Chandrachud, !.) 991

respondent, particularly in the last letter, seems only this, that the appellant was preparing ground for a decree of divorce or of annulment of marriage.

He was surely not so naive as to believe that the Director of Social Welfare could arrange to "give complete physical and mental

rest" to the respondent.

Obviously, the appellant was anxious to disseminate the information as widely as possible that the respondent was of unsound mind.

On May 6, 1961 the respondent sent a reply (Ex. 314) to the appellant's Jetter, Ex. 305, dated April 20, 1961. She expressed her willingness to go back to Poona as desired by him, if he could make satisfactory arrangements for her stay there.

But she asserted that as a wife she was entitled to live with him and there was no purpose in her living at Poona "so many miles away from Delhi, without your shelter". In regard to the appellant's resolve that he will not bear the expenses incurred by her, she stated that •aot a pie remitted by him will be illspent and that, whatever amount he would send her will be accounted for fully.

It is in this ba1.-kground that on May 19, 1961 the respondent wrote the letter Ex. 318 to the Government.

When asked by the Government D to offer his explanation, the appellant by his reply Ex. 323 dated July 19, 1961 stated that the respondent needed mental treatment, that she may have written the letter Ex. 318 in a "madman's frenzy" and that her father had "demoralised" her.

In his Jetter Ex. 342 dated November 23, 1961 to the respondent's father, he described the respondent as

"your schizophrenic daughter".

, Considered in this context, the allegations made by the respondent in her letter Ex. 318 cannot revive the original cause of action.

These allegations were provoked by the appellant by his persistent and purposeful accusation, repeated times without number, that the respondent was of unsound mind. He snatched every chance and wasted no opportunity to describe her as a mad woman which, for the purposes of this appeal, we must assume to be wrong and unfounded.

He ha<. been denied leave to appeal to this Court from the finding of the High Court that his allegation that the respondent was of unsound mind is baeless.

He also protested that he was not liable to maintain the responrlent.

It is difficult in these circumstances to accept the appellant's argument either that the respondent deserted him or that she treated him with cruelty after her earlier conduct was condoned by him.

It is true that the more serious the original offence, the less grave need be the subsequent acts to constitute a revival(!) and in cases of cruelty, "very slight fresh evidence is needed to show a resumption of: the crnelty. for crueltv of chancter is bound to show itself in conduct and behaviour, day in and day out, nig.it in and night out". But the conduct of the respondent after condonation cannot be viewed apart from the conduct of the appellant after condonation. Condonation is

conditional forgiveness but the grant .of such forgiveness does not give

(I) Cooper vs. Cooper (1950) W.N. 200 (H.l.)

(2) Per Scott!.,. J. in Bairam vs. Bairam (1944) p. 59 at p. 60.

992 SUPRJi; ME COURT REPORTS [19751 3 s.c.R.

to the condoning spouse a charter to malign the other spouse. If this were so, the condoned spouse would be required mutely to submit to the cruelty of the other spouse without relief or remedy.

The respondent ought not to have described the appellant's parents as "wicked" but that perhaps is the only allegation in the letter Ex. 318 to which exception may be taken. We fiad ourselves unable to rely on that solitary circumstance to allow the revival of condoned cruelty.

We therefore hold that the respondent was guilty of cruelty but the appellant condoned it and the subsequent conduct of the respondent is not such as to amount to a revival of the original cause of action.

Accordingly, we dismiss the appeal and direct the appellant to pay the costs of the respondent.

p 1-f. p Appeal dismissed.