Lakshmi Shanmugham vs P.R. Shanmugham

S.S. Subramani, J.—In both these appeals, wife is the appellant.

O.P. No. 254 of 1991 was filed by the wife on the file of the Subordinate Judge, Thanjavur, for restitution of conjugal rights. That was filed on

2.8.1991. Counter was filed by the husband on 5.2.1992. Immediately thereafter, husband filed H.M.O.P. No. 19 of 1992, on the file of the

Subordinate Judge''s Court, Kumbakonam on 31.3.1992. The wife seems to have filed an application for transfer in view of the pendency of O.P.

No. 254 of 1991 before the Subordinate Judge''s Court, Thanjavur as Tr. O.P. No. 61 of 1992. The District Court, allowed the petition and

H.M.O.P. No. 19 of 1992 was transferred to the Subordinate Judge''s Court, Thanjavur, where it was re-numbered as O.P. No. 59 of 1992. It

was thereafter the wife filed a counter in O.P. No. 59 of 1992 on 19.11.1992.

I have stated the dates of filing of petitions and counter-affidavits since they have some relevancy when I deal with the matter regarding the

merits of the case.

In the petition filed by the wife for restitution of conjugal rights, it is averred that the marriage took place on 7.9.1986 at Swamimalai. At that

time, the respondent (husband) was employed at Tirunelveli and the petitioner (wife) was employed in Canara Bank, Trichy Junction Branch. It is

stated that they lived as husband and wife at 21, Keelakosa Street, Beema Nagar, Trichy from 1986 onwards. The respondent was transferred to

Thanjavur in October, 1987 after which they got settled down at Thanjavur. The petitioner was transferred to Thanjavur in January, 1989 and till

then she was attending to her duty at Trichy by going from Thanjavur. During 1989-90, both of them lived at No. 2, Anna Nagar, Easwari Nagar,

Thanjavur Town. It is said that right from the beginning, except at the initial stage, the husband had started to cast a doubtful eye upon the

petitioner (wife), and also treated her with utmost cruelty and beat her black and blue. The wife says that she was patiently waiting, that one day or

other the husband would change his attitude and lead a normal life with her. But it was of no use. Under some pretext or other or on some flimsy

grounds, the husband had started beating the wife without any justification at all. It is stated by the wife that he even avoided having any sexual

relationship with her and was always insulting her using undesirable and unpalatable words. It is stated that the respondent deserted the petitioner

on 10.6.1990 taking away with him all the articles offered at the time of marriage. The wife was left alone in the house. She made several bona fide

and earnest attempts to effect a mediation, but due to the stubborn attitude of the husband, nothing could be done. As a result of this, she had no

other alternative except to live with her parents at Kumbakonam from August, 1990. Even thereafter several mediations were attempted. But the

attitude of the respondent (husband) was not encouraging. It is said that after marriage, she alone was maintaining the family spending more than

Rs. 5,000. According to the wife, right from September, 1986 till May, 1990 she has handed over her entire salary, bonus and arrears, totalling

about Rs. 80,000 to the respondent (husband). All these amounts were given with the fond hope that both of them would settle down peacefully.

But, in spite of the same, the conduct of the respondent was cruel. It is said that in view of the conduct of the respondent, she has undergone

untold mental and physical torture. A demand was made to the respondent to cohabit with her and lead a happy marital life. A reply was sent by

the husband in which false allegations have been made. The statement made therein that the wife left the matrimonial home is incorrect. The

statements made in the reply notice are false to the knowledge of the respondent. In the reply, the husband wanted the petitioner-wife''s consent

for her divorce, for which she is not willing. She is still hopeful of leading a normal life. Since the respondent has refused to lead a normal marital life

and has deserted her, she has sought for restitution of conjugal rights.

In the counter filed by the respondent to that petition, the date of marriage is admitted. It is also admitted that he was employed at Tirunelveli

and he used to visit Trichy once in a fortnight and stay with his wife during every weekend and he was transferred to Thanjavur in October, 1987,

after which both the petitioner and the respondent settled down at Thanjavur. But the petitioner (wife) was transferred to Thanjavur only in

January, 1989. Till then she was attending to her duty at Trichy by going from Thanjavur. It is said that right from the beginning, the petitioner did

not exhibit any genuine anxiety to run the matrimonial home as a dutiful Hindu wife and she proved herself to be an overbearing type of woman

given to hysterical outbursts. According to the husband, the wife was always quarrelsome and not a single day passed without her picking up some

quarrel or other on trivial and flimsy things. It is stated that the respondent''s continuous approach to the petitioner (wife) to put her in proper lines

and to make her develop a taste for a peaceful and harmonious marital life was only in vain and she had obviously no desire to run the matrimonial

home in a normal and peaceful manner. According to the husband, the wife used to go to Kumbakonam to her parents house frequently under

some pretext or other not bothering about her husband''s comforts and well-being and she sometimes did not even return home after finishing her

office work, and because of this, the respondent had to undergo terrible mental agony without any peace of mind and his efficiency in his official

career was also affected as a result of the mental agony. The respondent (husband) tried to change the attitude of the petitioner (wife) through his

well-wishers. The allegation that the husband avoided having sexual relationship with the wife, is denied. On the other hand, the wife only avoided

the husband even from the first day itself. The respondent says that the averment that he used to beat the wife without any justification is false. It is

stated that in December, 1989, the wife left the family house without any reason whatsoever and she was attending to her official work at

Thanjavur by coming from her parents'' house at Kumbakonam. When the respondent met the petitioner at her office and expressed his

displeasure and wanted her to come and live with him, she ridiculed the idea and gave out that she was not prepared for any such event. But she

came to the house of the respondent only once between December, 1989 and March, 1990, for the purpose of threatening and intimidating, and

the letter sent by her in October, 1990 also reveals her character. It is said that the respondent went on official tour in or about January or

February, 1990 handing over the key of the house to the owner, with a request that in the event of his wife coming there, the key might be given to

her. Some time later, the petitioner had come there along with her parents and occupied the house. When the husband returned from tour, she did

not open the door, and, making hysterical outbursts, she cried out that she was not prepared to live with him and showered volley of abuses on the

respondent from upstairs, creating an ugly scene in the locality. Hence, the respondent was forced to stay in his friend''s house that night

consequent upon the indecent behaviour of his wife. It is said that the wife herself wrote a letter addressing to her name, with an intention to stop

the marriage. In fact, the marriage was arranged by the respondent only after seeing a ""wanted"" column in ''The Hindu'' dated 1.6.1986. After

sometime, on 15.7.1987, she had undergone a training in her office at Madras Staff Training College. On receipt of some records after the filing of

the O.P., he got an order sent from the Circle Office to the petitioner to undergo the training. From that order, he found that she had undergone the

Special Training for Scheduled Tribes in the Bank. After verification, the respondent came to know that her father, brother, herself and her sister

got job only claiming as Scheduled Tribes. It is stated that the wife''s parents belonged to Gavara Naidu and the documents reveal the original

community of the petitioner and her parents. It is stated that the wife has cheated the Government and has seized the opportunity which is intended

to benefit a Scheduled Tribe. According to the respondent, this one incident is sufficient to prove the mentality of the wife. It is further averred by

the husband that there are several instances which will speak volumes of her indecent behaviour. The respondent bore such humiliations and insults

only with the genuine hope of turn of events for better. It is said that the wife had shown disrespect to her husband. While the husband was

working at Tirunelveli and the wife was at Trichy, she was in the family way. The husband took her to a doctor for check-up and it was found that

she was pregnant and her pregnancy was two months old. When he came from Tirunelveli subsequently, he was shocked to find that his wife had

effected voluntary miscarriage. When the husband questioned her as to how she could do it without his consent, she had the temerity to retort that

effecting miscarriage was her own business and she was not bound to get the respondent''s consent. It is said that this one incident will be ample

proof of the petitioner''s overbearing nature and also her adamant attitude. It is said that the respondent could refer so many incidents which he

reserves for at the time of enquiry. From December, 1989 to March, 1990, there were several incidents which completely betrayed the imperious

and overbearing attitude of the petitioner. The petitioner would never tolerate her conduct being questioned by the respondent. At times she even

grew violent and threw costly articles including transistor in a fit of wild rage. The respondent says that he was brought up in such atmosphere that

he would deal with the domestic issues smoothly. On the other hand, the wife was always found lacking in patience, tolerance and amicable

settlement of any domestic dispute. It is stated that from March, 1990, the respondent was never allowed to enter the house at No. 2, Anna

Nagar, Thanjavur. She abused him, and in fact, went to the extent of asking him to fix up some other house for himself. The matter was tried to be

compromised through mediation. At a mediation, in the presence of certain well-wishers, the petitioner expressed that she was not prepared to live

with the husband and that she would take away all her belongings including the jewels, and then, in fact, within a few days of the mediation, she had

removed all her belongings including 18 sovereigns of jewels presented to her by the respondent''s parents and left Thanjavur to settle down at

Kumbakonam with her parents. Hence, the respondent was forced to fix up a separate house for himself in No. 24, Sri Nagar 1st Street,

Thanjavur. It is stated by the husband that only the wife, by her own conduct and callous mental attitude, rendered herself to be unsuitable, for any

peaceful marital life, and that the petitioner (wife) is clearly guilty of infliction of mental cruelty and also desertion of the respondent without any

justifiable or reasonable cause. It is also stated that the wife herself at several times expressed that she was not willing to lead a matrimonial life with

the respondent. It is said that the wife, without realising the consequences, has indulged in baseless and wild allegations, obviously to cover up her

own deficiencies and weaknesses. For these reasons, the respondent (husband) wanted the petition for restitution of conjugal rights to be

dismissed.

As stated earlier, on 31.3.1992, the husband filed before the Subordinate Judge'' s Court, Kumbakonam H.M.O.P. No. 19 of 1992, for

divorce. In that petition, it is averred that the wife did not exhibit any genuine anxiety to run the matrimonial home as a dutiful Hindu wife and she

proved herself to be an overbearing type of woman, given to hysterical outbursts, as she is working in Canara Bank. It is said that she was always

quarrelsome, and not a single day passed without her picking up a quarrel one some trivial or flimsy reasons. It is stated that the wife used to go to

Kumbakonam to her parent''s house frequently under some pretext or other, not bothering about the husband''s comforts and well-being, and that

she did not return to the house several times, after finishing her office work. Because of this, the husband had to undergo mental agony and it

affected his official career also. It is said that in December, 1989, the wife left the family house without any reason whatsoever and she was

attending to her official work at Thanjavur by coming from her parents'' house at Kumbakonam and started living permanently at Kumbakonam.

The husband says that he met the wife at her office and expressed his displeasure and wanted her to come and live with him. But she ridiculed the

idea and gave out that she was not prepared for any such events. The husband further say s in his petition that the wife came to his house in or

about January or February, 1990 when he was on official tour, and when he returned from tour, she did not open the door, and making hysterical

outburst, cried that she was not prepared to live with him and directed him to take a separate house and abused volley of abuses on him from

upstairs, creating an ugly scene in the locality. According to the husband, the wife has deserted him for the last more than two years without any

valid reason. It is said that the wife has no respect for the husband and she treated him only as a chattle, and that the husband was bearing all the

humiliations with a genuine hope that she will change her attitude. It is said that the husband took the wife to a doctor for confirmation of her

pregnancy. It was found that she was two months pregnant, and the husband was happy. But when he returned from Tirunelveli subsequently, he

was shocked to find that the wife had effected voluntary miscarriage. When the husband questioned her as to how she could do it without his

consent, she retorted by saying that it was her own business and that she was not bound to get his consent. According to the husband, this will

show her attitude. The husband says that there are so many incidents which he reserves for at the time of enquiry. He would further say that at

times at the wife becomes violent, and in a fit of wild rage, she will throw several costly articles. It is said that the conduct of the wife amounts to

severe cruelty and torture, and, therefore, he is entitled to get a decree of divorce u/s 13(1)(i)(a) of the Hindu Marriage Act. The husband also

says that the wife got employment under Scheduled Tribe quota on false grounds. It is said that the husband is, therefore, entitled to get divorce on

the above grounds.

A detailed counter has been filed by the wife on 19.11.1992. The averments therein are more or less the same as in the petition for restitution of

conjugal rights. She also denied the allegation that she caused any mental agony to her husband. She has offered herself to discharge the obligations

as a wife. She has denied the allegation that she got employment under Scheduled Tribe quota on false grounds.

Even before the transfer was ordered, trial in H.M.O.P. No. 254 of 1991 has begun, and the wife examined on 3.4.1992 and her evidence was

completed on 6.4.1992. It is seen that the husband was examined on 7.4.1992, 8.4.1992 and 9.4.1992. During this time, on the side of the wife,

Exs. A-1 to A-4 and on the side of the husband, Exs. B-1 to B-14 were marked, and the case was posted for arguments on 10.4.1992.

Thereafter, an application seems to have been filed as I.A. No. 43 of 1992, to reopen the case for evidence and also an application as LA. No. 48

of 1992 to recall the witness. The matter was adjourned from time to time. In the meanwhile, the petition for divorce was transferred to the

Subordinate Judge''s Court, Thanjavur, and the same was tacked on with H.M.O.P. No. 254 of 1991. On 11.1.1993, the interlocutory

application seems to have been allowed, and the husband was recalled and examined. On the side of the husband, R.W. 2 and R.W. 3 were

examined on 13.1.1993 and 18.1.1993 respectively. The wife was recalled and examined on 2.2.1993, and through the wife, Exs. B-15 and B-16

were marked.

On the basis of the above evidence, the trial court dismissed the application for restitution of conjugal rights and allowed the petition for divorce.

The trial court was of the view that Ex. B-16 speaks volumes about the conduct of the wife, and any husband who has got self-respect cannot live

with such a wife. It also believed the evidence of R.W. 2 and R.W. 3. But the trial court did not discuss the evidence of these witnesses, but only

said that they have no axe to grind against the wife, being independent witnesses. Even the evidence of R.W. 1 was not discussed by the trial court.

It assumed that what all he deposed must be true, and on the basis of such assumption, Ex. B-16 was also taken into consideration. The trial court

also found that abortion was performed without the consent of the husband and that also amounts to cruelty. It also held that the wife secured job

by misrepresenting the Government and bank officials declaring herself as belonging to scheduled tribe. It took the view that a person who goes to

the extent of falsely describing herself as belonging to scheduled tribe for the purpose of getting a job, can never be believed.

The wife filed two appeals before the District Court, Thanjavur, as C.M.A. Nos. 17 and 18 of 1993. The lower appellate court held that the

question of obtaining a job and the circumstances under which the wife got the same are not relevant for the purpose of deciding the case. It also

opined that the finding on those aspects by the trial court was unwarranted. But the lower appellate court relied on Ex. B-16 to hold that the

conduct of the wife does not deserve granting a decree for restitution of conjugal rights, and also held that the allegation of the husband that the

wife always treated him with cruelty can only be true. The lower appellate court was of the view that the wife was always insulting her husband and

that has caused mental cruelty. It also found that the husband was kept outside the house waiting, and the allegation by the wife that the husband is

impotent and her use of abusive language, all amounted to cruelty. The lower appellate court also relied only on Ex. B-16 to enter a finding on the

same. There is no finding by the lower appellate court whether the allegation of cruelty on the basis of abortion was true or not. The lower

appellate court only said that such a case has been put forward by the husband and the same is denied by the wife. No definite finding was

entered.

As it stands, the finding on divorce is mainly on the basis of Ex. B-16 only and also on the evidence of R.Ws. 2 and 3 who, according to the

Courts below, have corroborated the evidence of R.W. 1, the husband. In respect of the allegations regarding the obtaining of job by the wife and

abortion, there is no finding by the lower appellate court.

Since the lower appellate court has also upheld Ex. B-16 to enter a finding on cruelty, the petition for restitution of conjugal rights was

dismissed, and the petition for divorce, filed by the husband, was allowed, i.e., the judgment of the trial court was confirmed.

It is against these decisions the wife has preferred these appeals.

At the time of admitting these appeals, the following substantial question of law has been formulated:

When Ex. B-16, the letter written by the appellant to her parents, was not posted to the addressee, whether the said letter is admissible in evidence

and whether the courts below can take cognizance of the same?

At the time of arguments, learned Counsel on both sides argued the entire matter, and they did not confine themselves to the question of law

raised (extracted above). They also argued the effect of Ex. B-16 and also how far the oral evidence can be acted upon. Learned Counsel on both

sides also argued on the aspect of jurisdiction of this Court when there is a concurrent finding against the wife.

On the basis of the arguments, I feel that some more questions of law have to be formulated for consideration in this second appeal. I think I

am empowered to do so u/s 100 of the CPC which says:

Provided that nothing in this sub-section (i.e., 5) shall be deemed to take away or abridge the power of the court to hear, for reasons to be

recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.

Learned Counsel for the wife argued on the aspect of lack of pleading and lack of particulars both in the counter to the restitution petition and also

in the petition for divorce filed by the husband. Accordingly, the learned Counsel for the husband argued that in matrimonial cases, the court need

not confine itself to the pleadings regarding cruelty, and that it can take into consideration acts of cruelty which have arisen even subsequent to the

filing of the petition. Therefore, I formulate the following substantial questions of law for consideration in these second appeals:

(1) Whether, on the basis of the pleadings in both the cases, the husband is entitled to get a divorce, and whether his counter-statement in C.P.

No. 254 of 1991 has explained reasonable cause for refusing ""restitution of conjugal rights""?

(2) Even if Ex. B-16 can be admitted in evidence, whether the same is sufficient to pass a decree of divorce?

(3) Is not the finding of the courts below that the husband has proved his case is based on no evidence or misreading of evidence?

(4) Is not the procedure adopted by the trial court in casting the burden of proof on the wife, has caused grave miscarriage of justice?

Before rendering a finding on the above substantial questions of law, let me consider how far the pleadings enables the husband in getting a

divorce. Even if the wife''s application for restitution of conjugal rights is dismissed, that will not enable the husband to get adecree of divorce, for,

the scope of enquiry in both the cases is different. The wordings of Sections 9 and 13 of the Hindu Marriage Act have, therefore, to be

considered. Section 9 deals with restitution of conjugal rights. It read thus:

When either the husband or the wife has without reasonable excuse withdrawn from the society of the other, the aggrieved party may apply, by

petition to the District Court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition

and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

Section 13 deals with divorces. It reads thus:

Divorce: (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the

husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) xxx

(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (i-b) has deserted the petitioner for a continuous period of

not less than two years immediately preceding the presentation of the petition;

xxx xxx xxx xxx xxx

Section 9 deals with reasonable excuse for withdrawing from the society of the other, whereas Section 13 contemplates proof of facts alleged. The

grounds mentioned in Section 13 will have to be proved before getting a decree of divorce. I am not for a moment saying that the proof must be as

in a criminal case, but, being a civil proceeding, it depends upon the preponderance of probabilities, as decided in Dr. N.G. Dastane Vs. Mrs. S.

Dastane, . Hence, both the cases will have to be considered independently, for, the refusal of a relief in one application will not result in the granting

of relief in the other.

First I will deal with the petition for divorce, filed by the husband.

In paragraph 4 of the petition, the husband has averred that ''the respondent has completely deserted the petitioner (husband) for the past more

than 2 years without any valid reason.'' In paragraph 5, he says that he is entitled to get a relief of divorce on the ground of cruelty.

Both the courts below have held that the husband is entitled to get a divorce on the ground of cruelty, and not on the ground of desertion. But,

for the sake of appreciation, I extract paragraphs 4 and 5 of the petition filed by the husband. They read thus:

In December, 1989, the respondent left the family house without any reason whatsoever and she was attending to have official work at Thanjavur

by coming from her parent''s house at Kumbakonam and she started to reside permanently at Kumbakonam. The petitioner also met the

respondent at her office and expressed his displeasure and wanted her to come and live with him. She ridiculed the idea and gave out that she was

not prepared for any such events. But the respondent came to the house in or about January or February, 1990 when the petitioner was on official

tour. After the petitioner returning from tour, the respondent was not opening the door and making hysterical outburst and also crying out that she

was not prepared to live with him and she directed the petitioner to take separate house and she showered volley of abuses on the petitioner from

upstairs creating an ugly scene in the locality. The respondent has completely deserted the petitioner for the past more than 2 years without any

valid reason. Therefore, on the ground of wilful desertion the petitioner is entitled to a decree of divorce u/s l3(l)(i)(b) of the Act.

The respondent had no respect for her husband and was treating the petitioner not as a human being but as a chattel. The petitioner bore with such

humiliations and insults only with the genuine hope of turn of events for better. Once the petitioner took the respondent to a doctor for making a

routine check-up and to confirm her pregnancy. The petitioner found that she was pregnant and her pregnancy was two.months old and he felt

very happy. When he came back from Tirunelveli subsequently he was shocked to find that the respondent had effected voluntary miscarriage.

When the petitioner questioned her as to how she could do it without his consent, she had the temerity to report that effecting miscarriage was her

own business and she is not bound to get the petitioner''s consent. The petitioner states that this one incident will be ample proof of the

respondent''s overbearing nature and also her adamant attitude. The petitioner could refer to so many incidents which the petitioner reserves for at

the time of enquiry. The respondent would never tolerate any piece of her conduct being questioned by the petitioner. At times the respondent

even grew violent, and instances are not wanting when she threw several costly things including a transistor in a fit of wild rage. The respondent has

caused severe torture and treated the petitioner with utmost cruelty after the marriage. Therefore, the petitioner is entitled to a decree of divorce u/s

13(1)(i)(a) of the Act.

Along with the same, I will also incorporate the averments contained in the counter in O.P. No. 254 of 1991. Paragraphs 2 to 4 read thus:

The averments made in para 1 of the petition that the marriage had taken place on 7.9.1986 at Swamimalai between the petitioner and the

respondent is true and it is also true that to start with they lived at Bheema Nagar from 1986. It is submitted that the respondent herein was

employed at Tirunelveli and he used to visit Trichy once in a fortnight and stay with his wife during every weekends and he was transferred to

Thanjavur in October, 1987, after which both the petitioner and the respondent settled down at Thanjavur but the petitioner was transferred to

Thanjavur only in January, 1989; till then she was attending to her duty at Trichy by going from Thanjavur. Right from the beginning, the petitioner

only did not exhibit any genuine anxiety to run the matrimonial home as a dutiful Hindu wife and she proved herself to be an overbearing type of

woman given to hysterical outbursts. Further the petitioner was always quarrelsome and not a single day passed without her picking up some

quarrel or other for trivial and flimsy reasons. The respondent''s continuous approach to the petitioner to put her in proper lines and to make her

develop a taste for a peaceful and harmonious marital life was only in vain and she had obviously no desire to run the matrimonial home in a normal

and peaceful manner. This respondent humbly submits that the petitioner used to go to Kumbakonam to her parent''s house frequently on some

pretext or other not bothering about her husband''s comforts and well-being and she also was not turned to home after finishing her office work

several times. This type of imperious manners by the petitioner, the respondent had to undergo terrible mental agony without any peace of mind

whatsoever and his efficiency in his official career was also affected as a result of this mental agony. The respondent also tried to change her

attitude through the well-wishers those interested in the welfare of the petitioner and respondent. The averment that the respondent avoided having

sexual relationship with the petitioner is utter false. On the other hand, the petitioner only avoided the respondent even from the first day itself and

the averment that the respondent used to beat the petitioner without any justification is also not correct.

The averments in para 2 of the petition are not correct. On the other hand, in fact in December, 1989, the petitioner left the family house without

any reason whatsoever and he was attending to her official work at Thanjavur by coming from her parents'' house at Kumbakonam. The

respondent also met the petitioner at her office and expressed his displeasure and wanted her to come and live with him, she ridiculed the idea and

gave out that she was not prepared for any such event. But she used to come to the house of the respondent only once between December, 1989

and March, 1990 only for the purpose of threatening and intimidating and the letter sent by her in October; 1990 also reveals character. The

respondent went on an official tour in or about January or February, 1990, handing over the key of the house to the owner with a request that in

the event of his wife coming there, the key might be given to her. Sometime later, the petitioner had come there along with her parents and

occupied the house at a time when the respondent was away on tour. After returning from tour, she was not opening the door and making

hysterical outbursts and also crying out that she was not prepared to live with him. In fact she showered volley of abuses on the respondent from

upstairs creating an ugly scene in the locality. Hence, the respondent was forced to stay in his friend''s house that night consequent upon this

indecent behaviour of the petitioner. It is also important to mention that she herself wrote a letter addressing to her name itself with an intention to

stop the marriage. In fact the marriage was arranged by the respondent only after seeing a ""Wanted column"" in Hindu paper dated 1st June, 1986,

Post Box No. 599. To prove the untruthfulness of the petitioner, the respondent humbly submits that in the ""Wanted column"" of Hindu paper, it

was given as ""Wanted a bridegroom for a Nationalised Bank Employee"" After that, the respondent and his family members contacted the

petitioner''s family and the marriage was performed. After some time on 15th July, 1987, she had undergone a training in her office at Madras Staff

Training College. Now recently after receiving the notice in this O.P. from this Hon''ble Court, the respondent searched for some records in his

house. But he got the order sent from the circle office to the petitioner to undergo the training. From that order, he found that she had undergone

the special training for scheduled tribes in the Bank. After verification, the respondent came to know that all her father, brother, herself and her

sister got the job only claiming as scheduled tribes. The respondent is producing herewith xerox copy of the documents dated 28.2.1944,

21.1.1964, 10.6.1966 to prove that both the petitioner''s mother and father belonged to Gavara Naidus and those documents reveal the original

community of the petitioner and her parents. As per the documents the petitioner and his family members have not only cheated the Government

but also seized the opportunities of the scheduled tribes peoples given under the Constitution. This one incident would be enough to prove the

mentality of the petitioner and her family.

The respondent humbly submitted that several incidents speaking volumes of the petitioner''s intemperate and indecent behaviour could be recalled

by him and she had absolutely no respect for her husband and was treating the respondent not as a human being but as a chattel. The respondent

bore such humiliations and insults only with the genuine hope of turn of events for better. One glaring instance of callous disrespect shown to the

respondent by the petitioner would be sufficient to prove her mettle and caliber while the respondent was working at Tirunelveli and the petitioner

was staying at Trichy and she was in the family way. The respondent took her to a doctor for making a routine check-up and to confirm her

pregnancy. The respondent found that she was pregnant, and her pregnancy was two months old. When he came back from Tirunelveli,

subsequently, he was shocked to find that the petitioner had effected voluntary miscarriage. When the respondent questioned her as to how she

could do it without his consent, she had the temerity to retort that effecting miscarriage was her own business and she was not bound to get the

respondent''s consent. The respondent states that this one incident will be ample proof of the petitioner''s overbearing nature and also her adamant

attitude. The respondent could refer so many incidents which the respondent reserves for at the time of enquiry. From December, 1989 to March,

1990, there were several incidents which completely betrayed the imperious and overbearing attitude of the petitioner. The petitioner would never

tolerate any piece of her conduct being questioned by the respondent. At times, the petitioner even grew violent and instances are not wanting

when she threw several costly articles including a transistor in a fit of wild rage. The respondent has been brought up in such atmosphere that he

would always soft pedal several domestic issues only in the hope of a better turn of events. On the other hand, the petitioner has always been

found lacking in patience, tolerance and amicable settlement of any domestic disputes. In fact, in October/November, 1988, the petitioner''s

parents at the request of the respondent''s parents intervened and advised the petitioner to behave properly and prove to be a dutiful wife and the

advices had also been ignored by the petitioner and there was also absolutely no attempt on her part to mend and reform her manner and attitude.

I incorporated the pleading in the above case also only for the reason that both these were jointly tried.

In Smt. Maya v. Brij Nath AIR 1982 Delhi. 240, the learned Judge held thus:

In a petition for divorce on the ground of cruelty, acts of cruelty will have to be specifically pleaded. No amount of evidence can be looked into on

a plea which was never pleaded.

In Smt. Parvati Vs. Shiv Ram and Another, the learned Acting Chief Justice said thus:

The pleadings in regard to desertion and cruelty have to be specific in nature as envisaged by R-5. Desertion in essence means the intentional

permanent forsaking and abandonment of one spouse by the other without that other''s consent and without reasonable cause. Heavy burden lies

upon a petitioner who seeks divorce on the ground of desertion. The offence of desertion must be proved beyond any reasonable doubt. Similarly,

acts of ""cruelty"" have to be specifically pleaded. In absence of such pleadings it would be impossible for the answering spouse to effectively meet

the allegations. If specific allegations are not made with sufficient details no amount of evidence can cure the defect for it cannot be looked into....

The learned Judge held further thus:

Acts of ""cruelty"" have to be specifically pleaded. In the absence of such pleadings it would be impossible for the answering spouse to effectively

meet the allegations. If specific allegations are not made with sufficient details no amount of evidence can cure the defect for it cannot be looked

into.

B.P. Beri, on Law of Marriage and Divorce in India, Second Edition, 1989 (at pages 148 and 149), has stated thus:

As the charge of cruelty is within the direct knowledge of the complaining spouses, law requires that averments in relation to this charge must be

specific, concise and clear. Vagueness or ambiguity in the allegations of cruelty is likely to be viewed with disfavour. If the instances of cruel

treatment are not pleaded they cannot be considered for granting relief on the ground of cruelty. The trial court''s judgment reversed where the

husband''s petition for divorce was granted on the ground of cruelty which was not pleaded in the petition by the Punjab and Haryana High Court.

A.N.Saha, on Marriage and Divorce, Second Edition, 1981, has stated at page 131 thus:

Acts of cruelty are to be specifically pleaded. Specific instances of conduct should be described in particular and in separate paragraphs....

This Court framed Rules under the Hindu Marriage Act. Rule 4(a)(vi) deals with the contents of the petition. The relevant portion of the said

Rule reads thus:

...If the petition is for divorce the matrimonial offence alleged or other grounds upon which the relief is sought together with the full particulars

thereof so far as such particulars are known to the petitioner....

According to me, the pleadings put forward by the husband are vague. Except for the general pleadings, no specific act of cruelty has been

mentioned (apart from alleged abortion).

I will deal with the case of abortion initially. In paragraph 5 of the divorce petition, it is stated that the wife is guilty of cruelty on the ground that

she effected a voluntary miscarriage. The time at which it was alleged to have been effected is also relevant. Regarding this, it is stated that when he

came back from Tirunelveli, the husband was shocked $o find that ''the wife had effected voluntary miscarriage''. From the averments in the notice,

reply notice and counter-affidavit, it is clear that the husband was employed at Tirunelveli at the time of marriage. So, it was some time immediately

after the marriage. It is also admitted that in October, 1987, the husband was transferred to Thanjavur and thereafter the husband and wife were

living at Thanjavur together, and the wife was attending her office by going to Trichy by bus from Thanjavur, till she was transferred to Thanjavur in

1989. So, after the alleged abortion, both the husband and wife lived there for more than two years. In her evidence, P.W. 1 (wife) has stated that

she had a miscarriage once, but she did not do it voluntarily. In cross-examination, the only question that was suggested is, ''Is not the miscarriage

done by you voluntarily?'' for which the answer was a denial of the suggestion. There was no serious cross-examination on this point. Taking into

consideration their continued residence for more than two years, it can be assumed that it would not have been a voluntary miscarriage as alleged.

At any rate, the lower appellate court has not entered any finding on the same. In this connection, it is also worthwhile to remember that in the

petition for restitution of conjugal right, the wife has averred that the husband was avoiding sexual relationship with her. The same is specifically

denied by the husband. That means, he was having sexual relationship even after the alleged incident. If we read all these together, even if there

was any voluntary abortion or miscarriage, by the conduct of the husband the said act must be deemed to have been condoned. The husband will

not, therefore, be entitled to a decree of divorce on the said ground. This point has not been considered either by the trial court or by the lower

appellate court.

Regarding the evidenciary value of Ex. B-16, it is admitted that it is a letter written by the wife to her parents. Even though it is addressed to

her parents, she did not send the same. It was left in the house where they (husband and wife) were residing together. It is that letter which has

been made use of by the husband as a trump card for proving his allegation regarding cruelty. On the basis of Ex. B-16, there is no pleading and

there is also no evidence to show that the same has affected him mentally. The wording in Section 13 of the Hindu Marriage Act is ''treated the

petitioner with cruelty''. So, there must be evidence in this case to show that Ex. B-16 has affected him. Even though he was examined on

11.1.1993, after the case was transferred from Kumbakonam to Thanjavur, he did not speak anything about Ex. B-16. Regarding that letter, P.W.

1 was asked. She admits that it was written by her. She says that she wrote Ex. B-16 only because she suffered physical torture from her husband.

But in spite of the same, even though she addressed it to her parents, she did not send it. Regarding Ex. B-16, her evidence is:

As against this, there is no counter evidence. No let us see what she has written in Ex. B-16 which reads as follows.

According to me, a reading of the above letter will not show any cruelty but only the helplessness of the wife in cohabiting with her husband.

According to her, he is always suspicious; he has no love for her; always physically cruel; and when begins to manhandle her, he becomes an

animal. She also says that he never used to take her out. From 6.00 p.m. to 10.00 p.m., he will not be available. If any question is put, he will not

answer, or will take a long time to answer. She further says in the letter that he is not in the habit of informing her where he is going, and that she

was also prevented from enquiring about it. She has further said that he has not informed her about his emoluments and that he is also not helping

her in maintaining the family, and that her entire income has to be spent for the family, and only if there was any balance, that will be retained by

her. She also says that she should not talk to anybody, whether male or female, and even if she does not speak, that also will be made use of by

him for picking up a quarrel. Whenever he comes from the office, he has a quarrelsome behaviour. He also used to go to her office and enquire

about her. She also says that whenever she speaks to him, that ends in a quarrel. For all these reasons, and that too when the husband is suspicious

about her, she says that she cannot live with him. She also says that she has been prevented from meeting her parents and she was always

mandandled. In her letter (Ex. B-16) she has written that her husband wants to know as to what she had done about the four months'' salary she

had earned while she was at Kumbakonam. For not giving that she was beaten and physically tortured. In fact, in view of his conduct, she does not

want to live with him. Whatever she does, he finds fault with her. With such a man, how she can live, is her pleading in that letter. In the letter itself

she says that only as a last resort she is writing that letter to her parents, after having thought over the matter. She wants her parents to come and

take her. This is the sum and substance of Ex. B-16. Along with Ex. B-16, we have the evidence of P.W. I. This will not show that she was cruel

towards him. She also says that even within two months, she had taken seven days leave, and from 1.3.1990, she was again on leave for one

month. She says that only because (here was nobody to question him, he (husband) was behaving like that. For these reasons, she wanted her

parents to come and take her.

The courts below have found fault with the wife for having used the word (he) and also the words Learned Counsel for the respondent

(husband) argued on these two words. According to him, the wife has described the husband as an ''animal'' and ''impotent'' and that she has also

called him with disrespect. I do not think that the argument of the learned Counsel for the husband can be accepted so long as the evidence of

P.W. 1 remains unchallenged. The circumstances under which Ex. B-16 was written by her, were explained by P.W. 1. The conduct also reveals

the same. She was put to misery and torture. We must appreciate the conduct of the wife, that even though she wrote the letter, she did not send

the same to her parents. That only shows her tolerance in cohabiting with her husband. According to me, Ex. B-16 cannot be made use of by the

respondent. For, he has not spoken about the impact on his mind after he read that letter (Ex. B-16).

In this connection, it is relevant to point out the decision reported in V. Bhagat Vs. Mrs. D. Bhagat, , wherein (in paragraph 15) their Lordships

of the Supreme Court have stated thus:

''Mental cruelty'' in Section 13(1)(i)(a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as

would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot

reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such

conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the

petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the

possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it

is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be

determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be

had to the context in which they were made.

[Italics supplied]

It is true that cruelty need not be physical cruelty alone. It has got varied meanings. As has been held in the decision reported in Shobha Rani

Vs. Madhukar Reddi, , it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of

matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical,

intentional or unintentional. It is a question of fact and degree. Their Lordships held thus:

Section 13(1)(1-a) uses the words ""treated the petitioner with cruelty"". The words ""cruelty"" has not been defined. Indeed it could not have been

defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and

obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or

unintentional. If it is physical the court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem presents

difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment in the mind of the spouse.

Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be

drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct

complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired

into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.

It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular,

we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the

treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatised as cruelty in one

case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic

and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers,

therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the

parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as

Lord Denning said in Sheldon v. Sheldon (1966) 2 All E.R. 257 ""the categories of cruelty are not closed."" Each case may be different. We deal

with the conduct of human beings who are not generally similar. Among the human beings their is no limit to the kind of conduct which may

constitute cruelly. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the

conduct complained of. Such is the wonderful realm of cruelty.

[Italics supplied]

In Kamlesh Vs. Paras Ram, the learned Judge of that High Court has held thus:

The term ''legal cruelty'' as known to matrimonial law is that item of cruelty which the law recognises as an instance. Making a false allegation of

adultery by one spouse against the other is an instance of ''legal cruelty''. That is to say it has inherently an element of cruelty and the law recognises

it. Other instances of objectionable human behaviour can easily be multiplied. From time to time they have come to the notice of the Courts and off

and on been given the title of cruelty, and have unquestionably been followed by courts precedent-bound. But elemental cruelty does not ipso facto

mean that it would entitle the aggrieved spouse to a relief. And to be precise relief u/s 13(1)(a) of the Hindu Marriage Act. The ground of divorce

now available to the petitioning spouse is that the other party has after the solemnization of marriage treated the petitioner with cruelty. It does not

ipso facto mean that the petitioner has only to allege and prove that the respondent has indulged in act or acts which amount to ''legal cruelty'', But

then he or she has further to prove that it was ''cruelty'' satisfying the tests of the Hindu Marriage Act. In that Act cruelty as a ground for divorce

must mean cruelty of such a character as to cause danger to life, limb or health or to give rise to reasonable apprehension of such danger. After the

1976 amendment in the Hindu Marriage Act, cruelty as a ground for divorce has been brought at per with one existing in the Special Marriage Act.

And under the Special Marriage Act the ground of cruelty has always been understood to mean cruelty as it is understood under the English Law.

The effect of Dr. N.G. Dastane Vs. Mrs. S. Dastane, , was nullified by causing the 1976 amendment in the Hindu Marriage Act. In Baj Kumar

Manocha v. Smt. Anskuka Manocha 1983 C.L.J.134, S.P. Goyal, J. relying on Madan Lal Sharma v. Smt. Santosh Sharma 1980 H.L.R. 441

(Bom.), summed up the position of law on the point with erudite clarity with which I am in respectful agreement. The accusations instantly made by

the wife-appellant even if proved to have been false would not ipso facto entitle the husband to have a decree for divorce unless there was a

further finding that these were of such a grave character so as to cause danger to life, limb, health or to give rise to reasonable apprehension of

such danger....

In Sir Hari Singh Gour''s Hindu Code - 6th Edition - Volume 2 page 1057, the learned Author, on the basis of the decision reported in Mr. P.

v. P. 1988 M.L.J. 419, has stated thus:

...Take the example of a virgin, who has had a pre-marital serious love affair with some man other than her husband, she has received a bunch of

letters from him. After the marriage, she vows to remain and actually remains chaste to her husband alone. If such a wife were to read these letters

in the physical presence of the husband, one can appreciate that she is treating him with ""cruelty"". But if she reads the letters in hiding, taking all

precautions to keep them secret from the husband and the husband himself undertakes to unearth the secret activity of the wife by some ingenious

means, it is doubtful whether the wife would be charged with ""treating"" him with cruelty.

In this case, the letter is not published by the wife, and she has not made use of the same for any purpose. The husband takes possession of it and

publishes himself. That will not show that the wife was treating him (husband) cruelly.

In this connection, the legal concept of ''cruelty'' also has to be considered. The existence of cruelty depends not on the magnitude but, rather

on the consequence of the offence of cruelty, actual or apprehended. In a petition based on cruelty, the duty of the court to interfere was intended,

not to punish the husband for the past but to protect the wife for the future. According to the learned author (of Hindu Code mentioned above), the

word ''cruelty'' is employed only in limited sense. The learned author says thus:

Every unpalatable behaviour of the other spouse is not necessarily ""cruelty"" physical or even mental, so as to afford a ground for judicial separation

u/s 10 of the Act. Sometimes, when parties to a marriage forget that married life is a joint adventure and they do not ""bear and forbear"",

differences occur, and if they are not resolved amicably they give rise to misunderstandings, and, if either party lacks the force of character and the

art of tact and patience, they aggravate and aggravate sometimes to such an extent that the parties begin to feel hostile to each other. Then it

becomes difficult to hone their minds to peace. And, if they have foolish advisers, fuel is added to fire; their problems are converted from molehills

into mountains, with an enabling dissolution of marriage, they rush to the court and try to wash their dirty linen. Each seeks the pride of winning the

case. Here it is that the court has carefully to bear in mind that the expression, ""cruelty"" is employed in the Act in a limited sense.

The learned author also says at page 1058 that the following tests have been followed by the courts in India for granting or refusing to grant a relief

of divorce in matrimonial cases. The relevant portion reads as follows:

...First the act, words omissions or events alleged to amount to cruelty directed against the petitioner must be proved beyond reasonable doubt.

This must be in accordance with the law of evidence, second, it must be established that there is an apprehension in the mind of the petitioner that it

would be harmful or injurious for the petitioner to live with the other party. No doubt, every petitioner will say that he apprehends such harm or

injury. But he must be able to establish that what he apprehends is real harm or injury. Even that is not enough; and the third requirement of law is

that the court must be satisfied that this apprehension is reasonable having regard to all the facts and circumstances of the case including the

physical, mental and social condition of the parties concerned; their status, perhaps social, economic and physical; the nature of the differences

between the spouses; the welfare of the children, if any, of the marriage; the conduct of the parties towards each other during coverture and

thereafter, including the conduct of the parties in the course of the prosecution of the matrimonial petition, if necessary, depending on the nature of

each case; and possibly what the court ought to regard as the prevailing notions regarding the conduct and relation between husband and wife.

Moreover, the Parliament has considered that even this is not enough to entitle the petitioner to relief if the conduct of the petitioner himself

disentitles him to any relief, because if the court finds that the petitioner is taking advantage of his own wrong, it is the duty of the court not to grant

the relief. Hence, the fourth requirement laid down by the law is that the petitioner must satisfy the court that he is not in any way taking advantage

of his or her own wrong or disability for the purpose of the relief. The fifth requirement, so far as the present case is concerned, which is mentioned

in Section 23 is that where the ground of the petition is cruelty, as in the present case, the petitioner has not in any manner condoned the cruelty. It

is not sufficient to prove mere cruelty. What is required is that the conduct should be such as it wilful or unjustifiable and of such a character as to

cause danger to life, limb or health, bodily or mental or to give rise to a reasonable apprehension of such danger. If without the presence of danger

to health element the courts were to grant divorce on the ground of cruelty a heavy toll would be levied on the institution of matrimony.

Ex. B-16, according to me, has been misused by the courts below in rendering a finding against the wife.

I come to the oral evidence of R.Ws. 1 to 3. According to me, their evidence was misread by the courts below.

R.W. 1 is the husband. While he was examined, he said that on the first night of the marriage, the marriage could not be consummated since his

wife slept within five minutes. Further, he says that it is not correct to allege that he teased his wife by mentioning her community. He came to know

that his wife belonged to a Scheduled Tribe only when the wife went for training. He further said that he never talked to his wife about caste to

which she belonged. He has further deposed that his parents are at Madras, that he went to the petitioner (wife) in October, 1987 and that she

teased him, that she asked him to go to Dubai, that once his wife had pregnancy, that it was confirmed to be of two months, that when he left for

Tirunelveli, the wife committed voluntarily miscarriage, and further down he says that very often his wife used to go to Kumbakonam to her

parent''s house, that whatever he said, she will not obey, and she was always suspicious. In December, 1989 his wife scolded him in front of the

house. She abused him and he immediately left the house taking the scooter. Later, his wife brought her parents and when he returned in the night,

they also scolded him. His wife left with her parents to Kumbakonam 15 days later, he came back and his wife along with her parents bolted the

doors from inside. His wife scolded him from the balcony by saying, ""You are sleeping with your mother, why are you coming to your wife?"". He

immediately went along with his friend. Later, in March 1990, the matter was settled and thereafter he went to a new house. Even in the new

house, his wife used to bolt the door from inside and used to ask him, ""which woman you are keeping?"". In the examination dated 8.4.1992, he

has said that his wife used to tale sleeping pills and she used to throw away household articles. He has further said that the scooter which he is

having, was purchased by him. He denied the suggestion that his wife used to spend more than Rs. 5,000 per month, and added that her income

was only Rs. 1,500. In the last sentence of the chief-examination, he has stated that he does not want to live with his wife. These are the only

statements of R.W. I (husband) in the chief-examination.

In the cross-examination, he says that he came to know that his wife belonged to Scheduled Tribe, that he never hesitated to live with his wife,

and that his marriage was performed after noticing a publication in ''The Hindu''. He has further deposed that he did not take away the belongings

of the wife. He said that he prepared the documents only for knowing the caste of the wife. He denied the suggestion that in the first night itself the

marriage was consummated. He denied the suggestion that he used to scold his wife, He also denied the suggestion that the wife did not avoid a

transfer. He said that both of them resided together in Trichy and that after he came over to Thanjavur, the wife came from Trichy to Thanjavur

and lived with him. He denied the suggestion that his wife never scolded him in front of the house. He would say that many persons witnessed when

his wife scolded him. He denied the suggestion that he only deserted the wife. He says that he does not have the scooter loan application form. He

says that he is not willing to live with his wife. He denied the suggestion that he did not provide jewels to his wife. After the transfer of the petition

for divorce, the chief-examination contains only two sentences. They are: ""After marriage, the wife did not cohabit with me. She deserted me in

March, 1990. Thereafter I did not join her. She has deserted me intentionally and insulted me."" In cross-examination, he has stated that he only

remembers that in March, 1990 she deserted him, but he does not remember the date. He denies having stated in his petition that she deserted him

in December, 1989. He says that in December his wife quarrelled with him. He says that he has not stated as to on which date she deserted him.

He says that it is not correct to suggest that he deserted his wife from 10.6.1990. He says that k is only his wife who gave the notice. He says that

his address is No. 10, Sivapuram, Tirunelveli Junction, He also denied the suggestion that his wife never teased him. This is the evidence of R.W. 1

(husband). On the basis of this evidence which is not pleaded I do not think a decree of divorce can be granted.

Let us now see what R.W. 2 has stated in his evidence. In chief-examination, he says that the husband was occupying the upstair portion of his

house from April, 1990, along with his parents. He says that he knows the appellant. He has further stated that one month after the husband

occupied his house, the appellant once came to the house and bolted the house from outside and abused her husband and that he (R.W. 2.)

requested her not to abuse R.W. 1. He further says that she tore the scooter-seat of R. W. 1 and pushed down the scooter. According to R.W. 2,

the incident must be sometime during April, 1990. R.W. 1 has no case that he ever lived with the wife after March, 1990 and in the petition it is

stated as December, 1989. His specific case is that in March, 1990, the wife had left to her parent''s house. The courts below did not consider this

fact when they believed the version of R.W. 2. He could not have been an eye witness to the alleged incident if the husband and wife lived

separately from March, 1990.

R.W.3 is a person who can never be believed. He says that he has noted down in a diary as to what all had happened between the husband

and wife (parties herein) and that is why he is in a position to speak about the same. He is an utter stranger to the family. The circumstances under

which he had to take down these facts in a diary are not explained. The diary is also not produced before court. He also does not give the details

of time or day about such incidents. In fact, the incident that was spoken to by R.Ws. 2 and 3 was not pleaded by the husband. Even R.W. 1 has

not spoken about such an incident while he was in the box. What R.Ws. 2 and 3 have spoken is a case which has not been pleaded or proved by

R.W. 1. It is that evidence that has been accepted by the courts below only for the reason that they are independent witnesses. The reliance placed

by the courts below on the evidence of these witnesses is illegal. Their evidence is no evidence at all.

Exs. B-3, B-4 and B-6areof no evidenciary value to prove cruelty. Of course, Ex. B-3 has been relied on by the learned Counsel for the

husband to show that the scooter seat was torn. Though there is a statement that the scooter seat was torn, the wife has stated that if she is

responsible for the same, she wants to be excused. She also says that she is possessive and she wants only his love. She further says that even if he

does not speak to her, she will continue to talk to him due to love and affection. She further says that sometimes her behaviour may be harsh, but it

was only because of greater affection towards him. Even if others laugh at her behaviour, she will continue to talk to him and love him. This only

shows that the wife is very much affectionate towards her husband and the alleged cruelty by the husband is lacking in good faith.

I have already extracted the passages of the petitions on the allegation of cruelty. I have also stated that these are all only general in character.

At the most, it can be said that these alleged acts may be treated as disharmony. Simple trivialities which can truly be described as reasonable wear

and tear of married life cannot be treated as cruelty. In paragraph 34 of the decision reported in Dr. N.G. Dastane Vs. Mrs. S. Dastane, , their

Lordships have held thus:

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

In J.L. Nanda v. Smt. Veena Nanda : [1988]2SCR348 also, their Lordships said that sometimes the temperament of the parties may not be

conducive to each other which may result in petty quarrels and troubles, but the same will not amount to cruelty or a ground for divorce. In

paragraph 7 of the judgment, their Lordships have held thus:

Having heard learned Counsel for the parties and also having heard the parties themselves we come to the same conclusion as was reached by the

learned Judges of the Division Bench of the High Court while disposing of the appeal filed by the appellant against the judgment of the learned

single Judge. It is no doubt an unfortunate state of affairs but it could not be held that the respondent was behaving with the appellant in a manner

which could be termed as cruelty which would entitled the appellant to a decree for divorce. Sometimes the temperament of the parties may not be

conducive to each other which may result in petty quarrels and troubles although it was contended by the appellant that he had to suffer various

ailments on account of this kind of behaviour meted out to him by the wife; but it could not be held on the basis of any material that ailment of the

appellant was the direct result of her (respondent''s) conduct. The Division Bench therefore was right in coming to the conclusion that there is no

material to come to the conclusion that the respondent treated the appellant with such cruelty as would entitle him to a decree for divorce....

In Sukumar Mukherjee Vs. Tripti Mukherjee , a learned Judge of the Patna High Court has held thus:

The cruelty has not been defined under the Act and the reason is obvious. The acts and behaviour of human being are diverse and infinite and it is

impossible to give a definition which will include all acts and conducts amounting to cruelty. Whether a particular act or conduct will amount to

cruelty or not will depend upon the facts of each case. However, two elements are required to be proved for obtaining a decree of divorce,

namely, the act complained of i.e., the nature of the cruel treatment and secondly, its effect on the aggrieved spouse. The question whether a

particular act or behaviour will amount to cruelty or not depends upon the character, way of the life of the parties, their social and economic

conditions, their status, customs and traditions. Each case is to be decided on the facts of its own. The Judges

and the lawyers should not import their own notions of life while deciding the matrimonial cases.

[Italics supplied]

In this connection, the decision reported in Smt. Vibha Shrivastava Vs. Dinesh Kumar Shrivastava, , has some relevance. In paragraph 18, the

learned Judge has considered the concept of an orthodox Hindu wife and a modern Hindu wife. The relevant portion of the said paragraph, reads

thus:

...The orthodox concept of Hindu wife is to recognize her as a marriage partner having only a domestic role in the house of the husband. This

orthodox concept has lost its relevance in modern Hindu society where with advanced education of women, a Hindu wife is also capable of

seeking employment and having a professional career of her own. The concept of ''cruelty'' in the matrimonial law is not fixed or rigid and the Act

has purposely not defined the word ''cruelty'' the concept of cruelty may vary from couples to couples depending upon the peculiar circumstances,

intellectual level, financial and social status. In modern Hindu society it would be unjust to the fair sex to look at the Hindu wife only as a marriage

partner with a role confined to four walls of her husband''s home. She cannot be forced to compromise herself to a secondary role in the

husband''s house nor can she beexpected to subject herself to the unreasonable dictates of her husband. Any other attitude towards modern Hindu

women is bound to belittle her status in Hindu Society and would deter full growth of her personality in and outside the house.

In Madan Mohan Manna Vs. Smt. Chitra Manna, , their Lordships followed the decision of Denning, L.J. in Kaslefsky v. Kaslefsky (1950) 2

All. E.R. 398, which was quoted with approval in Dr. N.G. Dastane Vs. Mrs. S. Dastane, , which reads thus:

...If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility to 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

itself is imperilled."" Those observations were made in connection with cruelty, but the result would be same if the court grants decree simply

because a party has filed petition the whole institution of marriage itself would be seriously shaken if such liberty is given to a person.

In Suresh Kumar Gulati v. Smt. Suman Gulati AIR 1983 All. 225, a learned Judge of that High Court held that every mental tension cannot

amount to infliction of mental cruelty, and that it must be shown that the injury inflicted through the mind of the petitioner has affected his health, or

that the future repetition of that injury is most likely to affect his health. The learned Judge has held thus:

Cruelty in order to be a ground for divorce must be some such conduct of the respondent as gives the petitioner a reasonable cause of

apprehension of injury to body, mind or health in the future. Past conduct is undoubtedly relevant as it forms the very basis of the reason for the

apprehension of the injury or harm in the future. Cruelty can be mental; but when one speaks of mental cruelty as distinct from physical cruelty, the

idea is to show that while in the case of physical cruelty, harm or injury inflicted is to the body directly, in the case of mental cruelty, the harm or

injury caused is through the mind, but nevertheless it is a harm or injury caused to the human body. The injury when caused to the physical body is

something which could be perceived by the senses but when it is caused mentally, the result of it may appear later on by affecting the health of the

person to whom it is caused. Every mental tension cannot amount to infliction of mental cruelty. It must, however, be shown that the injury inflicted

through the mind of the petitioner has affected his health, or that the future repetition of that injury is most likely to affect his health....

On the basis of the above settled position of law and also on the basis of the evidence, I have to hold that Ex. B-16 was misread by the courts

below and the evidence of R.Ws. 1 to 3 was misapplied without taking into consideration the pleadings in the case. What was pleaded was not

attempted to be proved, and even if any fact pleaded was attempted to be proved, that was also condoned by the conduct of the husband.

Learned Counsel for the respondent (husband) cited before me various decisions to substantiate his case regarding ''cruelty''. They are: Smt.

Umri Bai Vs. Chittar, , Keshaorao Krishnaji Londhe Vs. Nisha Londhe, , Harbhajan Singh Monga Vs. Amarjeet Kaur, , Smt. Shanti Devi Vs.

Raghav Prakash, Smt. Kamala Devi v. Balbir Singh AIR 1979 J. & K. 4, Dr. Srikant Rangacharya Adya v. Smt. Anuradha AIR 1980 Kar. 8,

Smt. Asha Handa v. Baldev Raj Handa AIR 1985 Delhi. 76, Smt. Kalpana Srivastava Vs. Surendra Nath Srivastava, , Sushil Kumar Verma v.

Usha AIR 1987 Delhi. 86, K. Narayanan Vs. K. Sreedevi, and V. Bhagat Vs. Mrs. D. Bhagat, . The legal propositions settled in those cases are

not doubted.

In Sarah Abraham v. Righi Abraham AIR 1959 Ker. 75, their Lordships followed the decision reported in Jamieson v. Jamieson (1952) 1 All.

E.R. 875. While considering the question of ''cruelty'', their Lordships held that before coming to a conclusion, the Judge must consider the impact

of the personality and conduct of one spouse on the mind of the other, and all incidents and quarrels between the spouses must be weighed from

that point of view. In determining what constitutes cruelty, regard must be had to the circumstances of each particular case, keeping always in view

the physical and mental condition of the parties, and their character and social status. It is further said in that decision that though the Indian Courts

originally construed ''legal cruelty'' in the strict sense as above, there has come about a gradual change. I would have appreciated if only the

respondent had made an attempt to prove the factum of cruelty and also how the same has affected his character and social status.

In Smt. Umri Bai Vs. Chittar, , paragraph 5 of the judgment was read before me wherein it is said that the legal concept of ''cruelty'' has varied

from time to lime not in theory but in application, accordingly as the social and economic conditions changed.

The other decisions are also cited only for the purpose of showing whether ''cruelty'' has undergone a great change, and all acts will have to be

taken together in applying in the same to the facts of the case. It is the totality of all the circumstances that has to be applied. It is also stated in

those decisions that if we take each case independently, it may be trivial. But, if all these are taken together, it can be found that there is strained

relationship where they cannot live together.

As has been held in Shobha Rani Vs. Madhukar Reddi, , ""a set of facts stigmatised as cruelty in one case may not be so in another case. The

cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend

upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of

life. We may not go in parallel with them. There may be generation gap between us and the parties. It would be better if we keep aside our

customs and manners. It would be also better if we less depend upon precedents."" [Italics supplied]

Following the above principles, we have to consider in this particular case only the marital relationship so far as the parties herein are

concerned, and not about an ideal wife and an ideal husband.

Learned Counsel also submitted that the question of cruelty is a concurrent finding of fact, and, therefore, this Court may not interfere u/s 100

of the Code of Civil Procedure, unless a substantial question of law arises in this case.

I perfectly agree with the correctness of the legal proposition submitted by the learned Counsel for the husband. I have already said that the

courts below have misdirected themselves and misread the evidence and rendered a finding for which there is no evidence and pleading, and as a

result of that, great prejudice has been caused, and that will be a ground for interfering u/s 100 of the Code of Civil Procedure.

In Jagdish Singh Vs. Natthu Singh, , in paragraph 10, their Lordships have said thus:

...As to the jurisdiction of the High Court to reappreciate evidence in a second appeal it is to be observed that where the findings by the court of

facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded

from recording proper findings....

In Hiralal and Anr. v. Gajjan and Ors. (1990) 3 S.C.C. 285, their Lordships have dealt with the matter in paragraph 8 which reads thus:

The main contention advanced on behalf of the appellants before us is that the decision having been rendered by the trial court and the first

appellate court on the basis of the finding of fact regarding the right claimed and the possession alleged, in the absence of any substantial question

of law, there was no jurisdiction of the High Court u/s 100, C.P.C. to disturb the finding of a concurrent nature and upset the decision. The High

Court, while exercising its power u/s 100, C.P.C, has no jurisdiction to interfere with the finding of fact recorded by the first appellate court.

Reliance was placed on R. Ramachandran Ayyar Vs. Ramalingam Chettiar, . Section 100(1)(c) referred to a substantial error or defect in the

procedure. The error or defect in the procedure etc. which the clause referred is not an error or defect in the appreciation of evidence adduced by

the parties on the merits. Even if the appreciation of evidence made is patently erroneous and the finding of fact recorded in consequence is grossly

erroneous, that cannot be said to introduce a substantial error or defect in the procedure. If in dealing with a question of fact the lower appellate

court has placed the onus on wrong party and its finding of fact is the result substantially on this wrong approach that may be regarded as a defect

in procedure. When the first appellate court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was

inadmissible that may introduce an error or defect in procedure. So also in a case where the court below ignored the weight of evidence and

allowed the judgment to be influenced by inconsequential matters, the High Court would be justified in reappreciating the evidence and coming to

its own independent decision as held in Madan Lal v. Gopi 1980 H.L.R. 441.

[Italics supplied]

In R. Ramachandran Ayyar Vs. Ramalingam Chettiar, , it has been held thus:

In hearing a second appeal, if the High Court is satisfied that the decision is contrary to law or some usage having the force of law, or that the

decision has failed to determine some materia! issue of law or usage having the force of law, or if there is a substantial error or defect in the

procedure provided by the Code, or by any other law for the time being in force which may have produced error or defect in the decision of the

case upon the merits, it can interfere with the conclusions of the lower appellate court. The error or defect in the procedure to which Clause (c) of

Section 100(1) refers is, as the clause clearly and unambiguously indicates, an error or defect connected with, or relating to the procedure; it is not

an error or defect in the appreciation of evidence adduced by the parties on the merits. That is why, even if the appreciation of evidence made by

the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to

introduce a substantial error or defect in the procedure. On the other hand, if in dealing with a question of fact, the lower appellate court has placed

the onus on a wrong party and its finding of fact is the result, substantially, of this wrong approach, that may be regarded as a defect in procedure;

if in dealing with questions of fact, the lower appellate court discards evidence on the ground that it is inadmissible and the High Court is satisfied

that the evidence was admissible, that may introduce an error or defect in procedure. If the lower appellate court fails to consider an issue which

had been tried and found upon by the trial court and proceeds to reverse the trial court''s decision without the consideration of such an issue, that

may be regarded as an error or defect in procedure; if the lower appellate court allows a new point of fact to be raised for the first time before it,

or permits a party to adopt a new plea of fact, or makes out a new case for a party, that may, in some cases, be said to amount to a defect or

error in procedure. But the High Court cannot interfere with the conclusions of fact recorded by the lower appellate court, however erroneous the

said conclusions may appear to be to the High Court.

If a finding of fact has been recorded by the first appellate court without any evidence, that finding can be successfully, challenged in second

appeal, because a finding of fact which is not supported by any evidence can be questioned u/s 100; and in the connection, it may be said that the

decree proceeding on which a finding discloses a substantial defect or error in procedure. This however, does not mean that wherever the High

Court thinks that the evidence accepted by the lower appellate court could not have been reasonably accepted, the High Court would be justified

in interfering with the decision of the lower appellate court. All that it means is that it should be a case where the evidence, which is accepted by the

lower appellate court, no reasonable person could have accepted and that really amounts to saying that there is no evidence at all.

In this case, the courts below have cast the burden of proof on the husband who has sought for a decree of divorce. It is for him to prove that

there was cruelty on the part of the wife and that she treated him with cruelty. The only piece of evidence is Ex. B-16. I have already said that the

same cannot be interpreted in the way in which the courts below have done. I he circumstances under which Ex. B-16 was written were not

considered. Moreover, Ex. B-16 must be read as a whole. On the other hand, the courts below, by reading certain words in Ex. B-16,

approached the entire case with a prejudiced mind. The oral evidence for which there is no pleading, was acted upon.

The learned Counsel for the respondent (husband) wanted me to uphold the concurrent finding of the courts below. I am of the view that if the

same is allowed to stand, it will only be a repetition of the injustice done by the courts below. A right of appeal u/s 100 of the CPC is only for

claiming justice, and not to confirm injustice already done. I repel the contention of the learned Counsel for the respondent (husband) and hold that

the husband is not entitled to get a decree of divorce on the grounds alleged in his petition.

The courts below have also refused the relief of conjugal rights mainly relying on Ex. B-16.1 also rely on Ex. B-16 to show that Ex. B-16

should not be read as the courts below have done.

The letter (Ex. B-16) shows the helplessness of the wife in the acts of the husband. In spite of the same, she wanted to live with him. Both the

Courts below have believed Ex. B-16. If you believe the same, then, naturally, the respondent (husband) will not be entitled to say that he has got

reasonable cause for withdrawing the society of the appellant (wife). So, if he is permitted to withdraw his society from the wife, then the courts

below will be justifying his own wrong. His cruelty towards his wife will be justified by the courts below in saying that the restitution should not be

allowed. Here is a wife who has filed a petition for restitution of conjugal rights, saying that she is still prepared to cohabit with her husband. She is

prepared to forgive his past conduct. The courts below have disbelieved the evidence of P.W. 1 (wife) for the only reason that there is no

corroborative evidence.

In marital disputes, the husband and wife alone can be parties, and insistence of witnesses for all their acts and omissions by way of

corroboration will amount to doing injustice to a party. Believing Ex. B-16, I hold that the wife is entitled to get a decree for restitution of conjugal

rights also.

Learned Counsel for the respondent (husband) wanted this Court to enter a finding on the question whether the conduct of the wife in getting

employment describing herself as a member of Scheduled Tribe community would amount to cruelty. A detailed argument was also put forward by

the learned Counsel. I have already said that the lower appellate court did not consider the same as relevant while considering a case of divorce. I

perfectly agree with the said observation of the lower appellate court. Even if the said allegation is true (which according to me is not necessary for

a finding in this case), we find that no evidence has been let in by the respondent (husband) that the same has in any way affected the marital life.

''There must have been some action or conduct by the one spouse which affects the other. Behaviour is something more than a mere state of affairs

or a state of mind. It may take the form of an act or omission or may be a course of conduct, and must have some reference to the marriage.''

[Italics supplied]. (See page 26 of Law and Practice in Matrimonial Causes - Second Edition (1974) - by Bernard Passingham).

Learned Counsel for the husband also wanted that the concurrent judgment of the Courts below should be confirmed on the ground that the

parties are not on good terms. According to him, even though the marriage was performed in 1986, they could live together only for a period of

four years, and thereafter they have been living separately. According to the learned Counsel, the marriage has irretrievably broken down, and, for

that reason also, the decree for divorce has to be upheld. Learned Counsel also wanted this Court to take note of certain decisions of the Supreme

Court for considering the said plea. He relied on the decisions reported in Ramesh Chander v. Smt. Savitri (1995) 2 L.W. 42 and also Smt. Saroj

Rani Vs. Sudarshan Kumar Chadha, . He also wanted this Court to consider the decision reported in Smt. Chanderkala Trivedi v. Dr. S.P.

Trievedi (1994) 1 L.W. 37, which is also a decision of the Apex Court.

The decision in Smt. Saroj Rani Vs. Sudarshan Kumar Chadha, can be distinguished on facts. The said decision does not lay down the

proposition that whenever a decree of divorce is prayed for on the ground that the marriage has broken down, it should be granted. In that case,

the facts are different. There, the wife filed a petition for restitution of conjugal rights, and a consent decree was passed granting that relief. There

was no cohabitation for a period of one year and the husband filed a petition for decree of divorce. The wife pleaded that after the decree was

passed, there was cohabitation for two days, and thereafter the husband turned her out. The court disbelieved the evidence. The trial court did not

grant relief, but the High Court passed a decree for divorce. In appeal before the Supreme Court, the wife sought to the decree on the ground that

the husband wanted the wife to have a decree for restitution of conjugal rights by some kind of a trap and then not to cohabit with her and

thereafter obtain a decree for divorce. Thus the original decree for restitution of conjugal right was itself assailed. It was clear that there was no

collusion between the parties. In that background, the Supreme Court made the observation that when the marriage had broken down, it was

better to close the chapter.

In Ramesh Chander v. Smt. Savitri (1995) 2 L.W. 42, the facts are entirely different. There were allegations and counter allegations of adultery

and the parties were living separately for more than 25 years. It was in those circumstances, their Lordships said that ''continuance of marital

alliance for namesake is prolonging the agony and affliction.'' The marriage was dead for all practical purposes. Their Lordships said that

considering the facts and circumstances of the case, it is better to put an end to the relationship. In that case, the children born out of the wedlock

had grown and even got employed by the time the decree was passed. In that case, the Supreme Court did not say that whenever a party moves

the Court and pleads that there is a breakdown of the marriage, a decree of divorce has to be granted.

Similar is the case in Bhagat v. D. Bhagat (1994) 1 L.W. 27. In that case, the husband alleged adultery on the part of the wife and the wife in

turn alleged that the husband has lost his mental equilibrium. Their Lordships began the judgment in the following words:

This is an unusual case calling for an unusual solution....

The parties were living separately for more than 15 years on the basis of allegations and counter-allegations. Even though the allegations could not

be proved, the Supreme Court said that in view of the non-cohabitation for a long period, it is not possible for them to live together thereafter, after

having made these allegations. Hence that decision also cannot be made applicable to the facts of this case. In this connection, it is worthwhile to

consider the decision reported in S. Saikumari v. P. Mohana Sundaram (1995) 1 L.W. 201. In that case, a similar question was argued. This

Court refused to grant a divorce on the said allegation. It was held thus:

Section 13 of the Hindu Marriage Act was amended in the year 1976. At the time, when the amendment was moved, there was a proposal to

amend the Act providing ""breaking of relations"" between the parties as a ground for divorce. But, when the Bill was passed, the same was omitted.

It makes it clear that the said ground was purposely not included as a ground of relief and therefore it cannot be a ground for divorce. We can only

grant the relief on the grounds mentioned in Section 13 of the Hindu Marriage Act....

Section 23(1) of the Hindu Marriage Act says that before granting any relief under the Act, the court must be satisfied that the grounds exist.

We have only the statutory grounds for getting a divorce. Section 23(2) of the Act also says that before proceeding to grant any relief under this

Act, it shall be the duty of the court to make every endeavour to bring about a reconciliation between the parties, to see that the marriage bond

exists. So, the provisions of the Act make it clear that divorce shall not be granted except on specific grounds. In this connection, it is better to

remember the observations of Lord Stowell in Evans v. Evans (1790)1 Bag Con 35 which read thus:

...Yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility. When people understand that

they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation the yoke which they know

they cannot shake off; they become good husbands and good wives from the necessity of remaining husbands and wives; for necessity is a

powerful master in teaching the duties which it imposes. If it were once understood that upon mutual disgust married persons might be legally

separated, many couples who now pass through the world with mutual comfort, with attention to their common offspring and to the moral order of

civil society, might have been at this moment living in a state of mutual unkindness, in a state of estrangement from their common offspring, and in a

state of the most licentious and unreserved immorality. In this case, as in many others, the happiness of some individuals must be sacrificed to the

greater and more general good.

... ... ...

(See page 175 of Landmarks in the Law by Rt. Hon. Lord Denning - 1984)

The said observations still hold good in spite of the Statute.

It is the foremost duty of this Court, in dispensing the remedy of divorce, to uphold the institution of marriage. The possibility of freedom begets the

desire to be set free, and the great evil of a marriage dissolved, that it loosens the bonds of so many others. The powers of this Court will be turned

to good account if, while meting out justice to the parties, such order should be taken in the matter as to stay and quench this desire and repress

this evil.

(See Smt. Umri Bai Vs. Chittar, approving the passage of Sir J.P. Wilds, in Sidney v. Sidney (1734) 34 L.J.P.M. 122).

I have already stated in the previous portion of this judgment that the allegations are trivial, and if we combine all the allegations, it cannot be said

that there is a breakdown of marriage as alleged.

I answer the substantial questions of law thus: On question No. 1, I hold that the pleadings are vague both in the petition for divorce and also in

the counter statement in O.P. No. 254 of 1991, and that the husband had not explained any reasonable cause or excuse for not having

cohabitation with the wife. No specific averments have been made and the evidence is also lacking. Hence, I hold that the husband is not entitled to

get a decree of divorce, and the wife is entitled to get a decree for restitution of conjugal rights.

On question No. 2, from my discussion earlier, it is clear that Ex. B-16 is admitted by P.W. 1 as written by her, the genuineness of which is not

questioned. Hence it is admitted in evidence. But, for reasons stated in the earlier part of my judgment, I hold that Ex. B-16 cannot form the basis

for granting a decree of divorce.

On question No. 3, I hold that the decisions of the courts below are based on no evidence, and what was attempted to be proved was not

pleaded, and even in respect of matters which are sought to be proved, evidence is not satisfactory, and that apart, the available evidence has been

misread by the courts below. On question No. 4, I hold that the burden of proof was wrongly cast on the wife. Ex. B-16 was misinterpreted for

granting a decree of divorce in favour of the husband and the same was made use of against the wife for restitution of conjugal rights. Both the

courts below were of the view that if restitution of conjugal rights cannot be had, the husband is entitled to get a decree of divorce. That was the

patent illegality committed by the courts below. The procedure adopted by the trial court and repeated by the lower appellate court was illegal,

and the same has caused a grave miscarriage of justice.

In the result, the judgments of both the courts below are set aside. C.M.S.A. No. 13 of 1994 is allowed, and O.P. No. 59 of 1992 is

dismissed. C.M.S.A. No. 16 of 1994 is allowed and O.P. No. 254 of 1991 also stands allowed. Taking into consideration the facts and

circumstances of the case, I feel that this is a fit case where the respondent (husband) must be directed to pay the costs throughout for both the

proceedings.