Ramesh Chandra Ray vs Smt. Nandita Ray

N.K. Das, J.—This appeal is directed against the confirming decision of the District Judge, Sambalpur in a matrimonial case filed by the husband against his wife for judicial separation. The Appellant initially prayed for a decree for divorce or for annulment of marriage or for judicial separation on the ground of unchastity, insanity cruelty and desertion on the part of his wife. Subsequently, after hearing commenced and some witnesses were examined, the plaint was amended and the prayer has been limited only to a decree for judicial separation on the ground of cruelty.

The parties are governed by Dayabhag School of Hindu Law and are original residents of Calcutta. Their marriage took place on 12-8-1964 at the place of the Respondent, i.e. 14 Despriya Park, West Calcutta according to Hindu rites and customs. The Appellant is a member of the Indian Administrative Service of Orissa cadre. He was posted at Bhawanipatna, Sambalpur, Banki, Padampur, Nawapara and Rayagada. The Respondent lived with him at all these places and two issues were born out of their wedlock a son on 19-2-1966 and a daughter on 13-3-1967. It is alleged that some time after the marriage, the Appellant discovered that the Respondent was suffering from a typical type of unbalanced mind which was exhibited by her acts, conduct and ways of life. Even though the Respondent read up to B.A. and comes of a well educated family, she possessed repulsive and unhygienic habits, inasmuch as she never washed her teeth or tongue, never kept her hair tidy and did not take care of her dresses and clothes Such habits on the part of the Respondent produced a repulsive smell around her and in spite of repeated requests by the Appellant there was no improvement in the habits of the Respondent. It is further alleged that the Respondent was unresponsive, indifferent and apathetic to the Appellant''s domestic expectations, desires and conjugal comforts. On several occasions, the Appellant on return from his office found the Respondent rude, irritative and abusive with violent outburst of temper, seeking to strike her head against the wall or some hard substance like glass, stone or paperweight and sometimes seeking to cut her throat by razor blade. On account of such acts and conduct on the part of the Respondent, the Appellant had to pass sleepless nights. The Respondent shunned the company of the Appellant and declined to move out with him in the society. In January 1965, the Appellant took the Respondent to a psychoanalyst at Calcutta who prescribed some medicines. Some-time thereafter, the Respondent was about to swallow the entire bottle of medicine in an irritative mood and the Appellant threw away the bottle. The Respondent never agreed to the course of treatment arranged by the Appellant. On 3-5-1965, the Appellant came to know that the Respondent had swallowed 25 ''Sequil'' tablets and she was removed to the hospital for treatment. The Respondent explained to the police at Calcutta that she was not having sleep and by mistake she had taken the pills meant for her sister''s treatment for insanity. The Appellant has described this as an attempt to commit suicide. A week thereafter, the Respondent joined the Appellant at Banki. At that time Respondent was pregnant. The conduct and habits of the Respondent showed no improvement and resulted in continuing physical and mental distress on the part of the Appellant. On 19-2-1966 the Respondent gave birth to the first child at Calcutta. While the Appellant was at Rayagada the Respondent joined him sometime around 7-6-1966. No improvement was also noticed at that time in the conduct and habits of the Respondent. The Respondent started sleeping separately from 10-6-1966 and was not taking care of the child and, therefore, the Appellant had to look after the comforts of the child. The Respondent thereafter again left for Calcutta where she gave birth to the second child on 13-3-1967. She joined the Appellant at Sambalpur on 27-7-1907 with her first child, leaving the second child at Calcutta. The Respondent continued her obnoxious habits and conduct resulting in mental pain and distress of the Appellant. In October 1967, the Respondent went back to Calcutta again and came back in January, 1968. In April or May, 1968, the Respondent took some sedative drugs of a very higher dose and continued to live separately from the Appellant.

She filed Title Suit No. 2/68 in the Court of the District Judge, Sambalpur on 2-8-1968 (vide Ext. 10) and again left for Calcutta via Jharsuguda on 25-9-1968. She returned to Sambalpur with her mother and another person on 11-10-1968, but stayed in the inspection bungalow. On 14-10-1968 she filed an application for withdrawal of the suit and the suit was dismissed for non-prosecution, The present suit was filed on 9-12-1968 by the Appellant.

The Respondent in her written statement has denied all the allegations of the Appellant. Her contention is that she comes of a respectable educated family of Calcutta and is a lady of good tastes and habits. The Appellant kept her in a substandard condition and he was not very much attached to the family life. He used to come home late at night and abuse the Respondent without any rhyme or reason. Also the Appellant used to assault the Respondent. He neglected her and never took her out to move in the society. She had taken some pills by mistake thinking the same to be vitamins. Besides denying the allegations in the plaint, she contends that she does not suffer from any kind of imbalanced mind. At Rayagada she slept separately from the Appellant at the instance of the latter. Even in spite of that the parties cohabited regularly and they had their last cohabitation two or three days before 25-9-1968. She left for Calcutta in January 1967 at the request of the Appellant even though she was in an advance Stage of pregnancy. The two children were born through caesarean operation at huge costs which were borne mostly by the widowed mother of the Respondent. In May and June. 1967 the parties lived at Calcutta and had cohabitation. In August, 1967 they lived at Sambalpur and cohabited. In November, 1967 the Respondent went to Calcutta for attending the marriage of her sister and the Appellant joined her there in December, 1967 and they stayed together for some time. She filed Title Suit No. 2/68 at the instigation and in collusion with the Appellant as a price for peace in the family. She returned to Sambalpur in January, 1968 and stayed with the Appellant till 27-9-1963 and again went back to Calcutta with one Naren Mandal. When she went out of the control of the Appellant, she withdrew the said suit. The allegations of mental or physical pain or suffering as well as the allegations of rude, irritative and abusive habits or cruelty by the Respondent are denied. According to her, the Appellant suffers from inferiority completed and has all along been very cruel to her. The Appellant demanded a new car from the Respondent and as the same could not be provided, the present suit has been filed out of that grudge.

It may be mentioned that though the case of the Appellant was based on cruelty and desertion, he has limited the case only to cruelty and the question of desertion has not been pressed.

The trial Court dismissed the suit holding that the allegations made by the Appellant have not been established. The lower appellate Court has confirmed the decision of the trial Court and has held that both the parties quite often misbehaved with each other and have been very critical of each other''s conduct. The incidents of April, 1968 when judged as a whole, keeping in view the position, background, temperament and status of the parties, cannot be said to amount to such cruelty on the part of the Respondent as to cause any reasonable apprehension in the mind of the Appellant that it will be harmful or injurious for him to live with the Respondent. As during this period the parties begot two children and there Respondent conceived for the third time, though it ended in miscarriage, cruelty, if there was any, must be held to have been adequately condoned by the Appellant by his cohabitation with the Respondent. The filing of a title suit by the Respondent which was subsequently withdrawn and a letter written by the Respondent (Ext. 6), in the background of matrimonial relationship of the parties, do not also amount to cruelty of a degree which can cause a reasonable apprehension in the mind of the Appellant that it would be harmful or injurious for him to live with Respondent. He has further held that the evidence adduced in the case does not lead to the conclusion that the acts complained of are so grave as to destroy the very foundation of conjugal life so as to justify disruption of the marriage.

The incidents mentioned in the plaint which are now sought to establish a case of cruelty have not been specifically stated in the plaint to be the grounds of reasonable apprehension in the mind of the Appellant that the same would be harmful or injurious for him to live with the Respondent. On the other hand, those incidents are related to the allegation of desertion.

Mr. Rath, the learned Counsel for the Appellant contends that the allegations made in paras 7, 8, 12 and 14 to 19 of the plaint have not been specifically denied by the Respondent and hence those allegations must be accepted to have been admitted. Besides the original written statement, the Respondent has also filed an additional written statement. The allegations in the aforesaid paragraphs of the plaint relate to certain habits and nature of the Respondent as well as some incident. In the written statement, it is stated that those allegations are all false and concocted. Also in the additional written statement some allegations have been denied. Of course, there may not have been denial word for word in the written statement, but it cannot be said that the allegations about the incidents and the habits of the Respondent made in the plaint, have not been denied. It is not a case where the question of specific denial would arise as in case of particular dates of birth or relationship found in the genealogy or execution of documents etc. In such cases, specific denial may be necessary. It is not also a case where the allegations in the plaint have been stated in the written statement "not admitted" or "has no knowledge". In such cases, the question of inference of absence of specific denial may arise. Considering the allegations in the plaint and the assertions in the written statement that those allegations are false and concocted and some of them are also denied in particular, it cannot be said that the allegations in the plaint should be taken as admitted expressly or impliedly. It would appear from the evidence that some of these allegations regarding incidents have been admitted and explanations have been given for such incidents. Accordingly, I hold that the aforesaid contention is not tenable.

Reliance has been placed by the Appellant on Tek Bahadur Bhujil Vs. Debi Singh Bhujil and Others, . That was a case in which the relationship as brothers belonging to the same joint family centering round a common ancestor was alleged and there was no specific denial as to joint family and, accordingly, there was no error in the evidence in the lower Court on that point. In view of the facts and circumstances of that case, the decision is not applicable to the present case. Reliance has also been placed on Jahuri Sah and Others Vs. Dwarka Prasad Jhunjhunwala and Others, . This was a case wherein the Defendant contended that he had no knowledge of the fact pleaded by the Plaintiff in the plaint and, accordingly, it was held that it would not tantamount to denial of incidents of a fact. Therefore, this decision is also not applicable to the facts and circumstances of the present case.

The next question is whether the Appellant is entitled to a decree for judicial separation on the ground of cruelty. Admittedly, two issues were born out of the wedlock of the parties and the last living issue was born on 13-3-1967. The parties were also living together till 25-9-1968.

Undisputedly, Respondent is a fairly educated lady and comes of a respectable family of Calcutta. The Appellant belongs to a scheduled caste and his father was not well-to-do. It transpires from the evidence that both of them lived together at different places 10 Orissa where the Appellant was posted and they had cohabitation. They have also two issues. On these admitted facts, the lower appellate Court has held that even though the parties were misbehaving with each other and have been critical to each other''s conduct, there was ample material on record to show that the Appellant had condoned the behaviour and actions of the Respondent as provided in Section 23(b) of the Hindu Marriage Act, 1955. Both the parties have cast aspersions on each other and witnesses from both sides have been examined in this respect. Regarding the habits and apathy of the Respondent towards the Appellant and his family, Appellant has tried to establish the allegations through two peons, P.Ws. 8 and 9. From their cross-examination, as well as from the statement of the Appellant himself (P.W. 10) and the evidence adduced from the side of the Respondent, it is clear that the Appellant has failed to establish the allegations as to habits, nature and temperament of the Respondent. On the other hand, P.W. 8 has stated that the Respondent used to appear unhappy. P.W. 9 who was previously a rickshaw puller and was appointed by the Appellant as a peon, has stated that there were dinners in the residence of the Appellant and many local officers with their family members used to attend and the Respondent used to look after their comfort and used to take part in the dinners with them. There was no quarrel or trouble between the parties when the Respondent was going out of the house during absence of the Appellant. He has further stated that the Respondent was taking care of the child at Sambalpur. One Naren Mandal who is admittedly a relation of the Appellant was also living in their family While confronted with the fact whether the Respondent was occasionally going out of the home to pay return visit to others, he expresses his inability to reply the same. The Appellant admits that the mother and relations of the Appellant used to come and stay with him and there is evidence that the Respondent was also looking after them. But the Appellant has not examined anyone of them and save that he did not feel it necessary to examine them. Undoubtedly, they would have been the best persons to speak about the nature, conduct and habits of the Respondent as alleged by the Appellant. None of the neighbours of the Appellant of any place where both the parties lived together bas been examined to support the allegations of the Appellant on this count. In para-28 of his opposition the Appellant has mentioned the names of some of his friends, officers and family members who complained about the habits of the Respondent, but curiously enough none of them has been examined to support the Appellant. Certain allegations as to actions of the Respondent in taking sedative drug of high dose etc. have been tried to be proved by the Appellant through a doctor, but the doctor does not support the Appellant in this respect. After going through the evidence on record, I am in agreement with the appellate Court that both the parties were misbehaving with each other and were critical to each other''s actions. Such behaviour was never one-sided. But undisputedly during that period they had cohabitation and issues were born. It can at least be said to be mal-adjustment or disharmony of temperaments of the parties, but this cannot amount to cruelty so as to warrant a decree for judicial separation. Of course, in course of argument the learned Counsel for the Appellant did not lay much stress on these aspects relating to the period prior to 1968 and concentrated on the period beginning from 2-8-1968, i.e. from filing of Title Suit No. 2 of 1968 by the Respondent at Sambalpur.

Mr. Rath further contends that even if up to 1968 the alleged actions and nature of the Respondent are said to have been condoned, yet the filing of the title suit (vide Ext. 10) by the Respondent and writing of the letter Ext. 10 to a friend of hers, subsequent to withdrawal of the suit and departure of the Respondent from Sambalpur would amount to cruelty. In Dr. N.G. Dastane Vs. Mrs. S. Dastane, , it has been held as follows:

The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities: This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition .that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a situation will act on the Supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the Court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the Court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies.

The Supreme Court while considering the value of English decisions in such cases, has observed that an awareness of foreign decisions would be a useful asset in interpreting our own la ws. But it has to be remembered that we have to interpret in this case a specific provision of a specific enactment, namely, Section 10(1)(b) of the Act. What constitutes cruelty must depend upon the terms of this statute. The risk of relying on English decision in this field may be shown by a passage from Tolstoy (p 63) in which the learned author citing Horton v. Horton, 1940 p. 187 says:

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

It is then observed:

If the danger to health arises merely from the fact that the spouses find it impossible to live together as where one of the parties shows an attitude of indifference to the other, the charge of cruelty may perhaps fail. But u/s 10(1)(b), harm or injury to health, reputation, the working career or the like, would be an important consideration in determining whether the conduct of the Respondent amounts to cruelty. Plainly, what we must determine is not whether the Petitioner has proved the charge of cruelty having regard tu the principles of English law, but whether the Petitioner proves that the Respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the Respondent.

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Spouses are undoubtedly supposed and expected to conduct their joint venture as best as they might but it is no function of a Court inquiring into a charge of cruelty to philosophies on the modalities of married life... The Court cannot apply to the habits or hobbies of these tests whether a reasonable man situated similarly will behave in a similar fashion... The question is not whether the conduct would be cruel to a reason able person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse....

With the aforesaid observations, the Supreme Court has laid down that the Court has, therefore, to try and understand the parties as nature has made them and as they have shaped their lives. The only ridder is the interdict of Section 23(1)(a) of the Act that the relief prayed for can be decreed only if the Court is satisfied that the Petitioner is not in any way taking advantage of his own wrong, or has condoned.

The Supreme Court is also of the view that numerous incidents as to cruelty may be cited, 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 for 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. Only the'' grave and weighty incidents are to be considered to find what place they occupy on the marriage canvas.

While considering the question of condonation, the Supreme Court has also observed that Section 23 casts an obligation on the Court to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief prayed for can be decreed only if the Court has satisfied "but not otherwise", that the Petitioner has not in any manner condoned the cruelty. It is necessary that there should be evidence on the record of the case to show that there was condonation. To constitute condonation, there must be two things forgiveness and restoration. "Condonation" u/s 23 means conditional forgiveness, the implied condition being that no further matrimonial offence shall be committed. Condonation is conditional forgiveness but the grant of such forgiveness does not give to the condoning spouse a charter to malign the other spouse. If this were so, the condoned spouse would be required mutely to submit to the cruelty of the other spouse without relief or remedy. In the case relied on by the Appellant, there were several allegations including a letter written by the wife to the authorities of the husband to do away with the service of the husband. But the Supreme Court held that the Respondent was guilty of cruelty and the Appellant had condoned it and the subsequent conduct of the Respondent was not such as to amount to a revival of the original cause of action.

The Respondent while admittedly living at Sambalpur with the Appellant filed Title Suit No. 2/68 for judicial separation. This suit was filed on 2-8-1968. The allegations in the plaint were that the Appellant did not allow the Respondent to pay any courtesy visit to the educated friends. The Appellant never had any outing with the Respondent for social purpose or social cause, befitting modern educated society. The mother of the Appellant imputed had motive to the Respondent which was believed by the Appellant and since July, 1966 the parties were using beds in separate rooms. It is admitted by the Appellant that he was giving only Rs. 30/- or Rs. 40/- to the Respondent for her monthly expenses which fact has been alleged in that plaint. The parties have controverted about going out for social cause.

Evidence has been adduced by both sides to that effect. But the question fur consideration is whether these allegations would amount to cruelty as envisaged u/s 10 of the Act. It has been already held that the parties had mal-adjustment or disharmony of temperaments. These may be affairs of day to day life and wear and tear of married life. These allegations cannot per se, be described as so grave as to give rise to a consideration on the part of the Appellant that it was dangerous for him to continue married life with the Respondent. Most of these are now alleged by the Appellant against the Respondent in the present suit. The Respondent has also explained that they were sleeping in separate rooms after the birth of the child, but they had no inconvenience in having marital affairs and she also wanted to plan the family. It is in evidence, as has been found by the lower appellate Court, with which I have agreed, that the Appellant was also not properly behaving with the Respondent. This is also admitted to 8 great extent by the Appellant in his deposition.

The case of the Appellant is that after filing of the suit, the Respondent had written a letter to her friend (Ext. 16) that she would no longer be considered as a married woman. Undisputedly this letter was not sent or posted and the Respondent left the same at Sambalpur when she proceeded to Calcutta. The contents of this letter are characterised by the Appellant to be of cruel act on the part of the Respondent.

The suit was withdrawn on 14-10-1968 (vide Ext. 11). The lower appellate Court has held that the filing of the suit by the Respondent which was subsequently withdrawn by her and the letter of the Respondent. In the background of the matrimonial relationship between the parties, do not also amount to cruelty of a degree which can cause a reasonable apprehension in the mind of the Appellant that It would be harmful or injurious for the Appellant to live with the Respondent and the evidence adduced in this case does not lead to the conclusion that the acts complained of are so grave as to destroy the very foundation of conjugal life, or to justify disruption of the marriage. In this connection the lower appellate Court has also held that the allegations in para-20 of the plaint are only in respect of desertion and not in respect cruelty.

The suit was filed by the Respondent while she was living with the Appellant at Sambalpur in the same house. Appellant states that prior to filing of that suit, the Respondent had threatened him and also his mother and brother (who have not been examined) about filing the suit. Evidence has been adduced to show that the Respondent contacted the advocate P.W. 6 through a peon (P.W. 9). The advocate states that when he came to see the Respondent, the Appellant was also present in the house and the Respondent handed over a draft plaint to him stating that the same was prepared by a friend. Long before the filing of the suit, the Respondent was residing with the Appellant. The case of the Respondent is that at the instance of the Appellant that suit was filed. The lower appellate Court bas held that the suit was a voluntary one and not at the instance of the Appellant. But certain other materials are also to be considered along with it. The Appellant says that there were threatening from Respondent about the suit before hand and he was seeing that the Respondent was having consultation with an advocate. His orderly-peon was going to call the advocate. He had also information about this from his stenographer as well as from P.W. 6 who was acting as advocate for the Respondent in that case. Before service of notice, the Appellant appeared in the suit. These facts clearly indicate that the Appellant was aware of the entire situation when the Respondent was living with him. There is no evidence that after filing of the suit there was any unusual or unhappy incident in the house in which both of them were living. About a month thereafter, admittedly the Respondent went to Calcutta, and she went up to Jharsuguda in the car of the Appellant and the Appellant''s stenographer accompanied her up to Jharsuguda. One Naren Mandal who is admittedly a relation of the Appellant also accompanied the Respondent. These facts are not disputed. This would clearly indicate that till the Respondent left for Calcutta there was no unhappy incident in the house even though the Appellant was aware of the suit in detail and had appeared in Court. This attitude of the Appellant speaks a lot relating to the relationship of the parties even after filing of the suit. The lower appellate Court has not at all taken into consideration these facts and circumstances having a material bearing on the case. The Respondent came back from Calcutta along which her mother and remained in the inspection bungalow. While staying there, she filed an application for withdrawal of the suit and the suit was withdrawn. That day also, as the Appellant admits, he went to the inspection bungalow to have a talk with the Respondent and her mother about the suit and to request the Respondent to come back to his house, but the Respondent and her mother, it is alleged were annoyed and the evidence of P.W. 7 shows that both parties shouted at each other. The Respondent states that when she was freed from the clutches of the Appellant, she decided to withdraw the suit after her mother consulted a lawyer at Calcutta, but the Appellant was not in favour of withdrawal. If the Appellant intended to get rid of the Respondent, as stated by the Appellant, there was no need on his part to go to the inspection bungalow again and ask the Respondent to come back to his house, or to have a talk with the Respondent about the suit. The very fact that the Respondent did not make any claim for maintenance in the suit filed by her at Sambalpur goes to the extent that a simple prayer for judicial separation was made and in ordinary course maintenance should have been claimed if the Respondent wanted judicial separation when she has got two children and intended to go to Calcutta and remain there for good. In ordinary course, and according to ordinary human nature and conduct a prayer for maintenance should have been made. But strangely enough such a prayer has not been made by the Respondent. If at all the Respondent wanted to teach a lesson to her husband and wanted to bid a good-by for ever and go away with her children, it would be natural on her part to claim maintenance when she had no source of income. Moreover, she is an educated lady and can be expected to visualise the situation which she would have to face in future.

Along with the aforesaid facts, the statement of P.W. 6 relating to preparation of the draft of the plaint of the title suit handed over by the Respondent to P.W. 6 is also to be considered. Admittedly, Respondent was living in the house of the Appellant. The contention of the Appellant is that she was not having social contact. There is no material on record to show that the Respondent was having any source of legal advice save and except P.W. 6 who was called through a peon of the Appellant.. The Appellant had also a stenographer attached to him who had also to play some role on the direction of the Appellant and he was in close contact with the Appellant. In view of these circumstances, handing over the draft of the plaint to P.W. 6 in the house gives rise to the probability in favour of the Respondent. The stand taken by the Appellant does not appear to be reasonably probable. Taking an overall picture of the attitudes or habits as described by the Appellant, it would not be normal or natural on the part of the Respondent to obtain a draft of the plaint for judicial separation. The allegations in the plaint do not appear to be of a grievous type and, added to it, there is also no prayer for maintenance or alimony. These two circumstances reinforce the probabilities in favour of the Respondent. On the aforesaid analysis of facts and circumstances, it can reasonably be held that the filing of the title suit by the Respondent cannot be said to be voluntary and that the Appellant had no role to play in the filing of that suit. It is contended by the Appellant that the finding of the lower appellate Court on this point being a finding of fact, cannot be interfered with. But it has been held by the Supreme Court in Dr. N.G. Dastane Vs. Mrs. S. Dastane, that u/s 103 of the Code of Civil Procedure, High Court may, if the evidence on record is sufficient, determine any issue of fact necessary for the disposal of the appeal which has not been determined by the lower appellate Court or which has been wrongly determined by such Court by reason of any illegality, omission, error or defect such as is referred to in Sub-section (1) of Section 100 and if direct or circumstantial evidence is available to justify the inference drawn by the High Court (vide para 21).

In this connection, the question of abortion in the middle of 1968 has also to be considered. Admittedly the Respondent came back and lived with the Appellant in January, 1968. Ext. H is an entry in the hospital register of Burla Hospital which shows that one Nandita Bose was admitted into the hospital for evacuation. One Dr. Kalpana Nandi is said to have made the entry In the register. The entry has been proved by the Respondent''s witness No. 4, but she was not present at the relevant time. Counsel for both sides have admitted that Respondent comes of a ''Bose'' family. The Respondent states that her condition was very bad at that time and she was not aware of any entry in the register. Admittedly at that time the Respondent was residing with the Appellant. But the Appellant says that he does not know anything about the fact of Respondent being admitted into the hospital for evacuation. This is not only strange, but against the ordinary human nature. If the Respondent was pregnant at that time and she went to hospital and had evacuation, in natural course the Appellant who was then the local Additional District Magistrate could know this fact. The Appellant does not deny this fact. On the other hand, he states that he does not know. The Respondent in her evidence has stated that though they were occupying separate bed-rooms, it was only for the sake of convenience and that did not interfere nor did it cause any inconvenience in having their normal marital life at any time. She has further stated that in December, 1967 they had intercourse at Calcutta. She states that in June, 1968 the Appellant threw her down from cot and kicked on her abdomen which resulted in miscarriage. Her definite case is that the Appellant took her to Burla Hospital and she was admitted into the Emergency Ward on 4-7-1968. After examination, decision was taken for evacuation and, accordingly, evacuation was done she also states that she was Dot in a position to give information to anybody through her husband. Both the previous deliveries were done by caesarean operation and the doctors advised them not to have a third child. She wanted to plan the family, but the Appellant was against it. It is contended by the learned Counsel for the Appellant that the two persons, one excise officer and the stenographer of the Appellant, who went to Burla Hospital, have not been examined by the Respondent. Undisputedly, the Respondent had left Sambalpur since September, 1968 and was residing at Calcutta when the suit came up for hearing. Admittedly, the excise officer and the stenographer of the Appellant were serving at Sambalpur and the Appellant was the Additional District Magistrate of Sambalpur. The stenographer has also not been examined by the Appellant. Considering the question of preponderance of probability, the lower appellate Court has impliedly accepted the story of third conception and evacuation. The statement of the Appellant that he does not know anything about this, which was only two months prior to the institution of the suit (vide Ext. 10), goes to show that the Appellant is suppressing facts and reasonable probability tilts in favour of the Respondent.

Judged on the dictum of the Supreme Court stated above in Dr. N.G. Dastane Vs. Mrs. S. Dastane, , the aforesaid facts and circumstances have a material bearing on the issues in dispute between the parties. While deciding these points, the lower appellate Court has lost sight of these facts and circumstances, inasmuch as these facts and circumstances emerging out of the evidence adduced by both parties, clearly establish the assertions of Respondent on preponderance of probabilities. The actions on the part of the Respondent cannot be characterised as one-sided without any contribution for the same by the Appellant.

The next stage is the letter Ext. 16. admittedly written by the Respondent to a friend. This letter was written subsequent to filing of the plaint, Ext. 10. Admittedly, this letter had not been posted or given any publicity in this letter, the Respondent stated that she should no longer be considered as a married lady, but a spinster. After filing of the plaint, as described above, she had expressed her grief and depression in writing. This was also not made known to the Appellant. So, there was no occasion for reaction of the Appellant. The Respondent had left it at the residence of the Appellant while she left for Calcutta on 25-9-1968. In view of the decision Pranab Biswas v. Mrinmayee Dassi and Anr. AIR 1976 Cat. 156, the aforesaid action of writing letter and not making it known to others cannot be characterised as cruelty satisfying the requirements of Section 10 of the Act.

The next stage is return of the Respondent on 11-10-1968 to Sambalpur with her mother. Both of them stayed in the inspection bungalow at Sambalpur and on that date a petition for withdrawal of the suit (T.W.No. 2/68) was filed and the case was accordingly dismissed for non-prosecution. Whatever may be the situation, the withdrawal of the suit was a voluntary act on the part of the Respondent. It cannot be characterised to have been done under the influence of the Appellant. This position leads to a reasonable assurance that filing of the suit by the Respondent was not voluntary and leads to a probability in favour of the version of the Respondent. If the Respondent wanted to vilify the Appellant and after filing of the suit left for Calcutta, then there was no reason for her to come from Calcutta and withdraw the suit. These circumstances coupled with the fact that the Respondent did not claim maintenance lead to a reasonable probability in favour of the version of the Respondent. The explanations given by the Appellant do not appear, in the circumstances stated above, to be more probable.

Nearly two months thereafter, the present suit was filed by the Appellant. In the plaint, originally several allegations were made imputing unchastity, venereal disease etc. to the Respondent and prayer for divorce, annulment of marriage or in the alternate judicial separation was made. But after entering into evidence and after examination of some witnesses, the Appellant gave up the prayer for divorce and also deleted many imputations. The remaining portion mostly relates to desertion and at present has been attributed to cruelty. Up to the end of 1967, it can be clearly found that the action of the Appellant even if actions of cruelty can be attributed to the Respondent, amounts to condonation. But I have already held, agreeing with the findings of the Courts below, that Appellant has failed to establish cruelty as envisaged u/s 10 of the Act. From the beginning of 1968, the actions of the Respondent, as I have discussed above, cannot be said to amount to cruelty complying with the requirements of Section 10.

The suit for maintenance filed by Respondent is after the present suit by the Appellant. In view of the original allegations and prayer in the plaint of the present suit filing of a suit by the wife for maintenance cannot be, in any manner, cruelty. Moreover, filing of that suit having been after institution of the present case, cannot be considered as a fact for the allegation of cruelty.

It is not expressly mentioned in the plaint by the Appellant whether the specific allegations made in Ext. 10 were of such a nature that those amounted to mental cruelty. He also does not state specifically that the allegations made in Ext. 10 were false or if the allegations were otherwise harmful to his prestige, his honour and job prospects. He has stated in para-44 of his statement that he did not examine any relation or friend, nor filed any piece of paper to show that he suffered from, unbearable mental distress or had gone down in the estimation of public or if his official status and dignity were impaired in any manner and he admits that he had not received any adverse comments in his confidential character roll. Mr. Rath contends that when the Respondent has said that she lost her love for the Appellant and since 1966 they were using separate beds, it should be deemed that no more there is any good feeling between the parties and this aspect of the matter should be considered as cruelty on the part of the Respondent affecting the mental condition of the Appellant, his status, his environment and official position. As I have discussed above, the evidence of Appellant himself does not establish this fact and the actions of the Respondent cannot be attributed solely to her without having any contribution from the side of the Appellant. All the actions complained of by the Appellant are outcome of mental disharmony between the parties. Taking into consideration the background of the relationship of the parties as discussed above and on that setting of facts unruly temper of a spouse or matrimonial wranglings cannot be said to amount to cruelty, nor it would be sufficient to show that the other spouse is whimsical, exacting, inconsiderate and irascible. Incompatibility of temperament, negligence or want of affection, wounding the feeling of the other, or expression of hatred or the like, would not be regarded as by themselves cogent grounds for relief. Meanness, stinginess, shiftlessness, selfishness, or defects of temperament cannot by themselves amount to cruelty. Those must ordinarily be accepted for better or for worse. The Court has to take account of the ordinary weakness and failings and shortcomings and should not be satisfied unless grave and substantial causes are established. Unhappiness in a marriage per se also does not amount to cruelty. The Court has to bear in mind that the husband and wife are made for each other and there is no question of give and take policy between them.

Considering the facts and circumstances as available from materials on record, the Appellant has failed to establish the requirements of cruelty, according to the dictum laid down by the Supreme Court in Dastane cases. Even if cruelty can be said to be established, then also there has been condonation on the part of the Appellant, as has been held by the lower appellate Court and with which I also entirely agree.

I do not find any element of illegality in the ultimate conclusion of the Court below, nor the decision can be said to be without materials on record.

In the result, the appeal fails and is dismissed with costs.

Appeal dismissed.