CALCUTTA HIGH COURT
Bench: JUSTICE Chittatosh Mookerjee and Mukul Gopal Mukherji
Sm. Krishna Sarbadhikary
Alok Ranjan Sarbadhikary
Petition no 119 1982
The principal question in this appeal is whether the learned Additional District Judge, 2nd Court, Alipore was justified in dissolving the marriage of the appellant wife with the respondent husband on the ground that she had treated her husband with cruelty within the meaning of section 13(1)(ia) of the Hindu Marriage Act, 1955.
2. On 12th December, 1976 the marriage of the parties took place according to Hindu rites at Baguihati, P S. Rajarhat, District 24-Parganas. At the time of the marriage the petitioner husband (respondent herein) was aged about 36 years and the appellant wife was aged about 28 years. After marriage, they had lived at the husband’s joint family residence at 27/l/lB, Jiban Krishna Mitra Road, PS, Chitpur, District 24-Parganas. The petitioner husband’s widowed mother, his sister, who had been divorced from her husband and his three brothers used to live with them. One brother subsequently died. Soon after her marriage, the appellant wife had conceived and on 9th October, 1977, in a Nursing Home at North Calcutta she had given birth to a daughter. During their married life the appellant Krishna, on several occasions had left her husband’s house and had stayed in her father’s house. According to the respondent husband, she used to depart without the consent or knowledge either of his mother or of himself. The appellant wife, however, denied the same and according to her, except on one occasion with consent of her husband she used to visit her father’s house. On the evening of 10th July, 1978, the appellant wife with her daughter left her husband’s place and, thereafter, she did not return. There was some angry correspondence between the parties. On 14th May, 1979, the present respondent filed in the District Judge’s Court, 24-Parganas, a petition for dissolving the marriage on the ground of cruelty of his wife. She contested the case. As already stated, the learned Additional District Judge, 2nd Court, Alipore has allowed the said petition and has passed a decree dissolving the marriage between the parties on the ground of cruelty.
3. Mr. Bankim Dutt, learned Advocate for the appellant has submitted that there was no evidence that the appellant wife was guilty of legal cruelty and throughout their married life the appellant’s behaviour towards her husband was what was expected of a Hindu wife and occasional differences of opinion between the two were part of normal wear and tear of married life. According to the learned Advocate for the appellant, there was no proof that the alleged acts of the appellant had caused reasonable apprehension in the husband’s mind that it would be harmful and injurious for him to live with her and, therefore, the Court below was wrong in holding that the appellant wife had treated her husband with cruelty. Further, submission on behalf of the appellant is that up to 10th of July, 1978 the parties had admittedly lived as husband and wife and therefore the husband must be deemed to have condoned the alleged acts of cruelty on the part of his wife committed prior to 10th of July, 1971. Since 10th July, 1978 they have been living separately and they had only exchanged letters and there was neither any pleading nor proof that subsequent to 10th July, 1978 she had treated her husband with cruelty. The learned Advocate for the appellant has further urged that even if the decree passed by the Court below is upheld, the appellant wife ought to be awarded permanent alimony. The learned Advocate for the appellant has also submitted that appropriate order under section 27 of the Hindu Marriage Act ought to be made in respect of the appellant’s properties lying in the house of her husband.
4. The petitioner husband who is the respondent in this appeal, in paragraph 3 of his petition under section 13 of the Hindu Marriage Act, had pleaded that Smt. Krishna, who is the respondent in the Court below, was extremely short-tempered, rude eccentric, whimsical and discourteous and suffered from mental disorder resulting in abnormally aggressive or seriously irresponsible conduct on her part. The petitioner husband further claimed that from the very night of the Phoolssajjya day on 14th December, 1976 she had become highly displeased with him and had expressed her extreme dissatisfaction about the gifts and presentations made to her from the petitioner’s family. The husband’s another allegation in his petition under section 13 of the Hindu Marriage Act was that after her marriage without his permission she used to often visit and to stay for long duration at her father’s house and she had to be brought back after good deal of persuasion; Whenever the petitioner raised any protest against such frequent visits or stay, the respondent wife got annoyed, enraged and agitated and picked up quarrels with him and abused the petitioner and his family. The petitioner alleged that her mode of living and conduct had injured his mental feelings (vide paragraphs 5 and 6 of the petition). The petitioner further pleaded that his wife had lodged a written complaint to the Officer-in-Charge, Chitpur Police Station making false and unfounded charges of torture against him and the members of his family. On 19th October, 1977 she had given birth in a Nursing Home to a daughter and then she was taken back to her husband’s house. Even thereafter she had gone back to her father’s house and had to be brought back. On 10th July, 1978 she had finally left her husband’s place with her baby without the consent and knowledge of the petitioner or his family. Thereafter, she had written him letters making false and defamatory allegations of torture and maltreatment towards her She had also demanded return of her ornaments and other presents made to her.
5. The present appellant in her written statement filed in the Court below had denied the aforesaid allegations of her husband. She averred that she was an obedient and submissive wife but she had been ill-treated by the petitioner’s mother and his youngest sister, who were in the habit of picking up quarrels with her and used to oppress her in such a cruel way that it was impossible for her to stay in her husband’s house. She claimed that in order to avoid further physical assaults and mental torture, she had to leave her husband’s house and had to take rest in her father’s house (vide paragraph 7 of her written statement). She did not deny that she had lodged complaint with the police against her husband. But she alleged that her husband had thereafter taken her to Alipore Criminal Court and made her sign a blank paper which had been afterwards converted into an affidavit for using the same for the petitioner’s gain. She further averred that because of apprehension of losing her life, she had returned to her father’ family. But she was ready to meet her marital obligations with the petitioner if he made provisions for separate residence for her and the baby. She also claimed return of ornaments, jewelleries, furniture, clothing and other articles given in the list annexed to her written statement.
6. We may proceed to examine whether the learned Additional District Judge, 2nd Court, Alipore was justified in believing the petitioner husband’s case of cruelty against his wife (the present appellant) and in granting the decree for divorce. Both in her pleading and in course of her evidence, the appellant wife has admitted that she used to frequently leave her husband’s house and stay at her father’s house. Intermittently she returned to her husband’s house. Since 10th July, 1978, she did not return at all to her husband’s house. In our view the learned Additional District Judge for very good reasons has accepted the petitioner husband’s case that frequently the present appellant used to leave her husband’s house without consent. This part of the petitioner husband’s case has been proved by himself, his sister Smt. Smritikana Sarvadhikary, P.W. 6, and his mother Smt. Sankurani Sarvadhikary, P.W. 3. According to these witnesses, Krishna often left their house without telling them anything. The Court below in this connection, has referred to a letter written by Krishna herself to her mother-in-law [Ext. 3(f)] and also to her mother’s letter dated 14th February, 1977 [Ext. 3(e)] to the petitioner’s mother. Both these letters referred to an incident at her husband’s house on 8th February, 1977. Both of them tendered apologies for misbehaviour by her uncle, Durga Ghosh, who had taken her away to her father’s house. Krishna in her letter [Ext. 3(f)] confessed that on the said date she was not been able to restrain herself and had misbehaved. Paramesh Ghosh, the father of the appellant, in his letter dated 15th August, 1977, addressed to Smt. Sankurani Sarvadhikary referred to another incident between her and her mother-in-law’s family, F!e promised to take steps and stated that he was aware that her daughter was living happily in her husband’s house. Paramesh craved apologies for being unable to personally meet Smt. Sankurani The statement made by Smt. Krishna, the appellant, in course of her evidence given in the Court below that whenever she went to her father’s house she took permission of her husband or mother-in-law is even inconsistent with not only some of the averments made in her written statement but also with other parts of her evidence. We have already mentioned her case was that because of ill-treatment at her husband’s house she was compelled to frequently come away and to stay in her father’s house. In her evidence she had repeated some of these allegations against her husband and the members of his family. We have also mentioned that in paragraph 12 of her written statement Krishna had, inter alia, averred that unless proper security for her safety or arrangement for separate accommodation for herself and her child was made, she was unable to live with her husband.
7. The appellant’s allegations against her husband, her mother-in-law and others members of their family have not been corroborated by any other witness or contemporaneous documentary evidence. Such corroboration is not required as an absolute rule of law. In proof of the matrimonial offence the Court insists upon corroborative evidence unless its absence is accounted for to the satisfaction of the Court vide Bipin Chandra v. Prabhabati, 1950 SCR 836. The Supreme Court in their later decision in Dastane v. Dastane, I (1981) DMC 293 (SC), held the word ‘satisfied’ in section 23 of the Hindu Marriage Act means preponderance of probabilities and not satisfaction beyond doubt. In a Bengali family a newly married girl who still retains her close affinities with her father’s family generally confides in her mother as to how she has been received in her husband’s house and about important incidents, if any, occurring in her husband’s house. If she felt hurt in all probabilities she would have also written letters to her parents complaining ill-treatment meted out to her. Krishna, the appellant, during her cross-examination had stated that she had kept contact with her parents through letters. We are not prepared to believe her statement that she had to write letters in the presence of her husband who used to post these letters. In the first place, such a case was neither pleaded nor any suggestion in this behalf was given to Alok Ranjan (P.W.i). It is also highly improbable that Smt. Krishna had on opportunities to write any letter to her parents when her husband went to office or elsewhere. In reply to further questions in cross-examination, Krishna practically admitted that except in her one letter she did not complain against her husband. But she did not produce in Court the said letter allegedly containing the allegations against her husband Alok Ranjan.
8. Even if we hold that out of natural shyness Krishna’s mother did not come forward to testify, we find no reasonable explanation at least why her father, Sri Paramesh Ghosh, or any other member of her father’s family did not depose on her behalf. Krishna had claimed in her deposition given in the Court below that all her relations knew about her experience in husband’s house, but she did not want to name them as they had not been cited as witnesses. It may be also noted that on 10th July, 1978 when she finally came away, her father had taken her back from the house of Sunil Kumar Bhattacharyya, a neighbour of Sarvadhikaries. According to Krishna, her father had drafted a complaint to the police, if the appellant’s father had been examined, he could have testified as to the circumstances under which her daughter frequently came away from her husband’s house. In this state of evidence, the Court cannot rely upon her evidence about her alleged ill-treatment at her husband’s house. Alok Ranjan had denied that in house his wife was subjected to cruel treatment, and that she was compelled to frequently leave her husband’s house, Alok’s mother. Smt. Sankurani (P.W. 3), his sister Smt, Smritikana (P.W. 6 and his brother, Asit Ranjan (P.W. 5) have also denied that the appellant was cruelty treated in their house. Smt, Sankurani held a Master degree in Bengali, Smt. Smritikana was also an M.Sc. and Asit Ranjan was a Chartered Accountant. The appellant in her evidence stated that the members of her husband’s family were highly educated and cultured but their behaviour was bad. Even if from the beginning there was not much cordiality between Krishna, on one side, and her mother-in-law and sister-in-law, on the other, it is not believable that immediately after the marriage Smt. Sankurani and Smritikana would begin to torture Krishna and Smritikana who herself was a divorcee, would openly threaten to wreck Krishna’s married life. Smritikana was living at her brother’s house and probably was their dependent. Therefore, it does not seem convincing that she would misbehave with her brothers wife and try to do her any harm. Alok Ranjan and the members of his family had, no doubt, protested against Krishna’s frequent visit to her father’s place but it is not credible that Alok Ranjan, his mother and his sister would constantly cruelly treat her or that they or any of them would even go to the length of taking assistance of a Tantrik for harming her. In Bengali families unhappy relations between the mother-in-law and her daughter-in-law may not be uncommon. But the same is generally veiled and muted. Krishna was herself a grown-up wife. She had been recently married and her open revolt shortly after the marriage was somewhat unusual and indicated her unwillingness to obey her husband and her mother-in-law. We have also observed that her mother-in-law and her sons and daughters were also educated persons. They were not likely to openly threaten her or without any cause cruelly treat her. On the other hand, Krishna herself was unable to reconcile herself to the petitioner which a newly married lady usually occupies in a middle-class Bengali joint family and could not adjust herself in her new surrounding. She was defiant and when her husband protested, she used to misbehave with him.
9. After perusing the letters of Krishna to Alok Ranjan, her suicide note and also her pleading and deposition, it appears to us that Krishna the appellant was a highly impulsive emotional lady who lacked balance and had suspicious nature. She had violently reacted when her husband and her family members had opposed her frequent visits to her father’s house. She had developed serious antipathy against her mother-in-law and sister-in-law and also harboured resentments against her husband. We also believe the evidence given on the petitioner husband’s behalf that Krishna very often flew into rage or abused and threatened him. It transpired from both oral and documentary evidence that in the first week of February, 1977 an uncle of Krishna named Durga Ghosh, insulted her husband’s mother and had taken Krishna back to her father’s house. Alok Ranjan brought her back some time later. On 6th June, 1977 she had lodged a complaint against her husband at Chitpur Police Station and the police came to Alok’s house to hold an enquity. On 9th October, 1977 Krishna gave birth to a daughter in a North Calcutta Nursing Home. Alok Ranjan had borne the expenses. On 28th November, 1977 she with her child without permission of her husband again left for her father’s house. On or about 12th March, 1978 Alok Ranjan brought her back to see his brother who was in his death bed and subsequently expired on 7th June, 1978. In April/May, 1978 Krishna prepared a suicide note (Ext. 2.). On the night of 10th July, 1976 Krishna with her child finally left her husband’s house. On 4th May, 1979 Alok Ranjan filed his present petition for divorce. Alok Ranjan has deposed that in fits of temper his wife grew violent. She used to tear his shirt and destroyed household articles. He claimed that she also assaulted him with a broom and lathi in fits of temper. She used to abuse him in filthy language, Alok’s mother and sister stated that in presence of them Krishna had assaulted Alok. She had torn his shirt. Asit Ranjan (P.W. 5), the younger brother of Alok Ranjan, has also stated that his brother’s wife’s behaviour was indecent unbearable and offensive. She abused his brother and assaulted him. According to P.W. 5, Krishna had shattered their hope for a peaceful life and they had been lowered in estimation of others. Asit further states that they used to treat Krishna well and had attempted to persuade Krishna to behave properly but had failed. We have also referred to the evidence of Smritikana (P.W. 6), the sister-in-law of Krishna who has substantially corrobrated Alok, his mother and his brother about Krishna’s behaviour.
10. Dr. Satyen Sinha (P.W. 2) who was a medical practitioner, was a friend of Alok Ranjan, the petitioner. Debapriya Basu (P.W. 4) also was Alok’s colleague and his friend. Debapriya has deposed that in April, 1977 when he had visited Alok’s house he found his wife. Krishna, abusing Alok in vulgar language cups and spoons were lying scattered in floor. According to Debapriya, Krishna had assaulted her husband with a lathi. Similarly, Satyen Sinha, P.W. 2, in May, 1977 had visited Alok’s house when he heard shouts and found Krishna in an agitated mood and was threatening his husband with a broom in her hand. The Court has rightly believed P.W.s. 2 and 3’s who were disinterested witnesses. There was no plausible reasons for them to tell lies about Krishna’s aforesaid behaviour.
11. We have already observed that no witness has corroborated Krishna’s allegations against her husband and his family : (I) beating, (2) ill-treatment, (3) abusing and threatening to ruin her married life and (4) confining her in a single room and preventing her from making telephone calls and writing letters in Alok Ranjan’s presence [vide Krishna’s letter Exts. 3 and(c)]. Krishna herself at a stage of her evidence given in the Court below had stated that she had all along good relationship with her husband. She was taken in her husband’s car on many occasions even to her father’s house. Her husband used to escort her. Her husband or his family members did not object to her writing to her father’s house and that her husband used to go to see her. Her mother and elder brother used to come to see Krishna’s mother-in-law. Thus, Krishna’s own evidence was not consistent and did not inspire confidence Sunil Krishna Bhattarcharjee (D.W. 2), was a neighbour of Alok Ranjan. Although Sunil claimed that he knew Alok Ranjan since 1961-62 he never heard any shouts from Alok’s house. He never heard Krishna shouting. Sunil’s evidence was that on 10th July, 1978 his tenant had told him that a woman from a neighbouring house was in their house and she was crying. She had a baby in her arms. He also saw Krishna crying, who told him that she had been assaulted and turned out of the house Sunil had telephoned Krishna’s father who came and took Krishna away. But Sunil admitted that he had not witnessed any other incident and he did not testify that Alok and his family members used to torture her. We conclude that Alok has satisfactorily established that her wife used to frequently leave without permission and knowledge for her father’s house and used to stay there for long spells. She used to abuse and quarrel with her husband and his family and misbehaved with them. On occasions she even physically assaulted Alok Ranjan. In her pleading and also in her evidence Krishna had alleged that her husband had improper relationship with one Uma Bakshi who worked under him at the office. But she failed to prove the said allegation. Merely because the said Uma Bakshi had visited Alok’s house one or two occasions had met members of Alok’s family, it cannot be inferred that there was any basis for Krishna being suspicious about her husband’s fidelity.
12. We are unable to accept the submission of Mr. Dutt, learned Advocate for the appellant, that the aforesaid acts and conduct of the appellant, Krishna, even if proved, were merely part of ordinary wear and tear of married life and did not amount to cruelty within the meaning of clause (ia) of sub-section (1) of section 13 of the Hindu Marriage Act. Mulla’s Hindu Law, 15th Edn., pages 781-792 contain a very useful discussion of the concept of ‘Cruelty’ and the broad general principles which emerge from the decided cases. The expression “cruelty” has not been defined in the Statute presumably because ‘all cases which come before the Court must be determined on their own particular facts’ (vide in Simson v. Simson, (1951) 1 All.ER 955. The accepted legal meaning of the expression “cruelty” is conduct of such a character as to have caused danger to life. Limb or health physical or mental) or to give rise to a reasonable apprehension of such danger vide in Russell v. Russell, 1887 AC 395. Clause (ia) of section 13(1) of the Hindu Marriage Act, 1955 requires that after solemnization of the marriage, if a person has treated his spouse with cruelty, the Court dissolve the marriage by passing a decree. Merely by showing that the parties are unhappy because of unruly temper of a spouse or matrimonial wrangling fall considerably short of the conduct which can amount cruel treatment. It would not be sufficient to show that the other spouse is moody, whimsical, exacting, inconsiderate and irascible. Defects of temperament must ordinarily be accepted for better or for worse. Therefore, there may be unhappiness in a marriage and the Court cannot have for that cause alone find cruelty (see Mulla on Hindu Law, 15th Edn., pages 788-89) “what is cruel treatment must to a large extent be a question of factor a mixed question of law and fact to be determined within the ambit of Rule and the accepted criteria”. It has been held that the legal concept of cruelty comprises two distinct elements. Firstly, the ill-treatment complained of and secondly, the resultant danger or apprehension thereto. It is not possible to specify the grounds of treatment of conduct which might constitute cruelty. It may consist of display of violent temper, unwarrantable indifference to other party’s health and happiness, deliberate refusal to so-operate. The expression “cruelty” comprehend both physical and mental cruelty. In deciding whether the act conduct or attitude of behaviour of one spouse towards the other amounts to cruel treatment has to be measured by the resultant danger or apprehension of the victim. Physical temperament standard of living and culture of the spouses, special ideas and all other relevant circumstances have bearing on the question whether the acts and conduct complained of amount to the matrimonial offence of cruelty conduct alleged must be judged up to a point by reference to victim’s capacity or incapacity for endurance in so far as that is or ought to be known to the offending spouse (see cases noted in the foot note (g) of Mullets Hindu Law, 15th Edition, page 783). The Therefore a particular treatment in case of one person may amount to cruelty having regard to his temperament, physique and capacity to endure such treatment. It has been said that actual intention on the part of one spouse to injure the other is not an essential factor. “It is necessary in determining this point to enquire from what motives such treatment proceeds”. Intentional acts may amount cruelty even though the one who perpetuated the same had no intention of being cruel. But in doubtful cases the state of mind of the offending spouse would be material and may be crucial. In case the reprehensible conduct of departure from normal standard of conjugal kindness cause injury or apprehension thereof, the Court may consider that the victim should not be called on to endure it. The contrary views expressed in Keslcfsky v. Keslefshy, (1950) 2 All.ER 398 (CA), was not approved by the House of Lords in Collins v. Collins, 1964 AC 644=(1963) 2 All.ER 966, which laid down that neither actual or presumed intention to hurt the other spouse was a necessary element in cruelty.
13. In the instant case by reason of the petitioner’s wife frequently departing without permission from the matrimonial home, the husband felt humiliated socially and was in constant fear and anxiety and he had no mental peace. His claim that his health had suffered and he was attacked with colitis has been corroborated by the deposition of Dr. Satyen Sinha (P.W. 2) Smt. Sankurani, mother of Alok Ranjan, P.W. 3 : also deposed that her son sustained mental and physical pain because of the behaviour of his wife. “ Sometimes a doctor had to be consulted. We have also referred to the evidence of acts of physical violence by Krishna. We are not unmindful of the fact that in his petition under section 13 of the Hindu Marriage Act Alok did not expressly plead acts of physical cruelty and mostly averred about the acts mental cruelty on the part of his wife. But in their correspondence prior to the filing of the case, Alok Ranjan on several occasions had alleged that Krishna had beaten him and also had in various was cruelty treated him. Proper inference has to be made from the whole set of facts and matrimonial relations. Individual acts in isolation may be trivial and not sufficient to constitute cruel treatment. But cumulative effect of reries of related acts may if taken together constitute cruel treatment. In the instant case, having regard to the ages of the parties, environments, their standard of culture and status in life, we are bound to hold that the series of acts committed by Krishna amounted to cruelty towards her husband and the same had serious consequences, both actual and apprehended, upon the husband, Alok Ranjan. Her behaviour towards her husband and his family members was indecent, unbearable and offensive. We have also referred to the fact that Krishna went to the length by lodging a complaint with the police against her husband. Actually a police officer visited Alok Ranjan’s house to enquire about her complaint when Krishna had retracted her allegations against her husband. The police actually made an enquiry when Krishna had disowned her said complaint on grounds which at the trial she herself admitted to be not true and according to her, her husband had tutored her to deny the complaint made against him. At the trial she admitted that she had made such complaint to the police. There is no evidence that there was any foundation for her making such a complaint. Therefore, in the facts of the present case, lodging of complaint of commission of criminal offence against her husband, who was a Government official, was very likely to cause an apprehension in the mind of Alok Ranjan that continued co-habitation with his wife would be harmful and injurious. It would appear that on the day Krishna finally come away, i.e. 10th of July, 1978, she and her father had again gone to the police station. In such circumstances, the petitioner husband cannot be compelled to endure the company of the wife who makes false complaints to the police over matrimonial differences.
14. We have also mentioned that in April/May, 1978 she had prepared a suicide note (Ext. 2), In her said note she had written that her husband would not be responsible and he was always affectionate towards her. But she was unable to withstand the oppression of her mother-in-law and sister-in-law. She had appealed to the police to take firm steps against such oppression. This propensity to commit suicide also might also raise a reasonable apprehension in Alok’s mind that it would be harmful and injurious to live with Krishna, It is not necessary that the act or acts complained of must take place within what is sometimes described as the ambit of a marital relationship. It may well be that the acts may occur after the husband and wife had began living apart [see Mulla’s Hindu Law, 15th Edn., page 783 and the decision in (7) Cade v. Cade, 1957 (1) All.ER 609]. Therefore, in the instant case we need not confine our attention to the acts of the parties from the date of marriage up to. 10th July, 1978 when Krishna with her child left the matrimonial home. We may legitimately take into consideration her conduct and behaviour even subsequent to the said date. We have already mentioned that after she left on 10th July, 1978 she with her father had again gone to police station presumably to lodge a complaint against her husband and his family. She had continued to write insulting and offensive letters to her husband making various accusations which she has failed to substantiate. She had demanded return of her movables and on occasions insisted that unless a separate home for her was set up, she did not propose to return. Inspite of protests of her husband she had continued to write such letters at Alok’s office address and Alok had in writing claimed that Krishna had done so to humiliate him in his office. In the above view, in deciding whether Krishna had ill-treated her husband and the resultant danger of apprehension up to the dated of the filing of Alok’s petition under section 13(1)(i)(a) of the Hindu Marriage Act, We have already held that the same fully establish that Krishna was guilty of having cruelly treated her husband Alok Ranjan.
15. We next take up the question whether or-not Alok Ranjan, the husband, had condoned the acts of cruelty on the part wife Krishna. Mr. Dutt submitted that up to 10th July, 1978 the parties had lived together as husband and wife. Mr. Dutt has submitted that on all previous occasions Krishna had returned either on her own or her husband had brought her back. Thereby, Alok Ranjan must be deemed to have forgiven the alleged acts of his wife and had reinstated her. After 10th July 1978 the parties did not any further live together and therefore, according to Mr. Dutt, there could be no further occasion for Krishna to cruelly treat her husband. We have already pointed out that in deciding whether the husband or the wife had cruelly treated his or her spouse, the Court need not confine its attention to the facts which had occurred up to 10th July, 1978 and may take into consideration the acts and conduct of the parties subsequent thereto. We have found that even after 10th July, 1978 Krishna had continued to write insulting offensive and threatening letters to her husband. In our view, the said facts also constituted acts of mental cruelty upon Alok Ranjan. Further, the very act of Krishna living with the child on the night of 10th July, 1978, taking shelter in a neighbour’s house and lodging complaint to the police were also acts of cruelty towards her husband. ‘Condonation’ means forgiveness of the matrimonial offence and the restoration offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation, there must be therefore two things : forgiveness and restoration (vide Dastane v. Dastane, I (1981) DMC 293 (SC). But such forgiveness is conditional, on the condoned spouse thereafter fulfilling in all respects the obligations of marriage (vide in Henderson v. Henderson, 1944 AC 497). Their conjugal life had subsisted for a short period and was repeatedly interrupted by Krishna often departing for her father’s house. During her stay in her husband’s house she used to often insult, threaten and on occasions assaulted Alok Ranjan. Therefore, even if Krishna had been reinstated, she having repeatedly committed such acts of cruelty, her previous acts of cruelty committed before her reiostatment, again revived. Mulla on Hindu Law at page 861 her referred to the decisions on the subject of revival of matrimonial offence which would be itself given adequate ground for divorce or judicial separation. Commission by the condoned spouse of a matrimonial offence less than legal cruelty would be sufficient if the conduct complained of is of such persistence that it will make married life together impossible vide in Richardson v. Richardson, (1949) 2 All.ER 330; Tomson v. Tomson, (1912) 39 Cal. 395. In the instant case, on 10th July, 1978 Krishna with her child finally left her husband’s house. She had failed to prove by reliable evidence that her husband and his family had themselves cruelly treated her and they had compelled her to leave and that the marriage broke down because of the conduct of the husband without her fault. We have already held that the evidence on the side of the petitioner husband was more acceptable and that Krishna used to cruelly treat her husband. In the above view, the petitioner husband was entitled to rely on all the previous guilty acts of his wife as a ground for relief under section 13(i)(i)(a) of the Hindu Marriage Act, 1955. There has been no unnecessary of improper delay in instituting the proceeding and there was no other legal ground why the petitioner husband should not be granted the relief prayed for by him.
16. In her written statement, the appellant, Krishna, had prayed for making an order in terms of section 27 of the Hindu Marriage Act, 1955 for return of her articles stated to be still lying in the home of the husband. At the time of the hearing with notice the appellant had urged the said additional ground under section 27 of the said Act the Court below, however, did not frame and issue and did not pass any order in terms of section 27 of the Hindu Marriage Act. We propose to direct the Court below to give opportunities to both parties to adduce further evidence and thereafter make appropriate orders regarding Krishna’s properties, if any, still lying in the house of her husband.
17. In the circumstances of the case, the Court below also ought to make an order for payment of permanent alimony to Krishna until and unless she re-marries and also provide the maintenance of the child of the parties. Before the conclusion of the hearing of the appeal, the learned Advocate for the appellant filed before us statement of the monthly emoluments of Alok and the deduction made therefrom. According to the said statement, Alok’s total pay including allowances was allegedly Rs, 2,086.70 per month. A total sum of Rs. 290/- per month was being deducted from his salary towards provident fund, group insurance, professional tax, income tax, surcharge and compulsory deposit. Thus, according to the present respondent, he received a net sum of Rs. 1,797/-per month. We remit the question of payment of permanent alimony to the Court below for determining the same upon the evidence which may be adduced by both parties. Pending such decision by the trial court, we direct the petitioner husband to continue to remit by money order or by account payee cheque a sum of Rs. 550/- per month to the appellant Krishna within the 15th day of each succeeding month. The first of such of remittances or payments shall be made on or before 15th day of June, 1984. The petitioner Alok is further directed to pay or remit within three months all arrear maintenance at the rate previously fixed.
18. In the result, we dismiss the appeal against the decree for dissolution of marriage of the parties under section 13(1)(ia) of the Hindu Marriage Act, 1955 and affirm the decree passed by the Court below. We remit the case to the Court below for determination of the permanent alimony and maintenance payable to the appellant and her child. The Court below is also directed to make an enquiry in terms of section 27 of the Hindu Marriage Act and to pass appropriate orders/ directions. For deciding the aforesaid two matters, the Court below would be entitled to record further evidence of the parties, if adduced.
19. There will be no order as to costs.
Mukul Gopal Mukherji, J.—I agree.
Appeal dismissed. case remanded..