P. Natarajan vs Thamizhmani

Court:Madras High Court

Bench: JUSTICE K Sivasubramaniam

P. Natarajan vs Thamizhmani on 13 August, 2001

Law Point:

Heaping insults upon Husband and his family amounts to cruelty.

JUDGEMENT

1. While C.M.S.A. No. 22 of 1991 is directed against the judgment of the District Court, North Arcot District in C.M.A. No. 4 of 1989, C.M.S.A. No. 23 of 1991 is directed against the judgment in C.M.A. No. 7 of 1989.

2. Both the said appeals before the District Court were filed by the opposite parties being the husband and wife not being satisfied with the order of the Trial Court, Subordinate Judge, Vellore, in O.P. No. 53 of 1987. In the O.P. which was filed by the husband for divorce, the Trial Court gave a decree for judicial separation. Both the husband and wife filed separate appeals and the Appellate Court dismissed the appeal filed by the husband and allowed the appeal filed by the wife and hence both the above second appeals by the husband aggrieved by the rejection of his petition for divorce.

3. In the petition for divorce the petitioner/appellant herein contended that their marriage took place on 11.2.1976 and after the marriage they were living together as husband and wife till January, 1982 and a male child was born who was eight years old. The petitioner was a Medical Graduate and a Child Health Specialist employed in the Government Primary Health Centre, Kedar. He was also doing consultancy practice at Vettavalam. After graduation in April, 1981, he settled at Vettavalam which is his native place. He also started a part time clinic in Tiruvannamalai and at that time the respondent was in her father’s house in TiruVannamalai, after abortion in C.M.C. hospital. The respondent used to call on the petitioner in the clinic and on two occasions she had removed money in the clinic without the permission of the petitioner. Thereafter misunderstandings arose between the parties and according to the appellant the behaviour of the respondent became worse. She started scolding the petitioner and his family members and compel the petitioner not to run the clinic at Vettavalam and also to divide his property in his native place. One day she went to the extent of charging the petitioner with the theft of a gold chain and that the petitioner should have handed over the chain to some woman with whom he was having illicit connection. The respondent also started sending anonymous letters to the said effect and went to the extent of scolding and beating the petitioner’s mother and brother with chapals. Unable to bear the mental agony the petitioner wanted to leave the house, but the respondent locked the house from inside and did not allow the petitioner to go out for rest of the day. The petitioner further states that as it was unwise to visit the respondent’s house again, he sent one Dhanapal to the respondent’s house to advise her. But she refused to return to the house and made a false complaint to Dhanapal that the petitioner was having illicit relationship with his sister-in-law in Madras and he had also stolen gold chain and gave it to some other woman. The petitioner thought that good sense would prevail with the respondent, but all of a sudden she had sent a notice through her Counsel on 19.3.1982 for which a suitable reply was given. There were subsequent exchange of notices. All his effort to rejoin with the respondent was in vain and having waited for a period of three years, he filed a petition in O.P. No. 33 of 1985 for divorce on the ground of desertion. The respondent appeared through her Counsel and subsequently there was a compromise on 1.11.1985 whereby the petitioner and the respondent agreed to live together at Vettavalam, the native place of the petitioner.

4. The petitioner further contends that after the compromise, the respondent was taken to his house and he had given her new clothes. But she refused to take them and insulted him. She created scenes at Vettavalam by scolding the petitioner and his parents openly in the street and making complaints about them to everybody. While the petitioner was away to write Executive Officer’s Test at Cuddalore, on 3.11.1985, the respondent all of a sudden came to the hospital at Villupuram and after making inquiries about the petitioner she created scenes in the presence of patients and other Doctors and asked the receptionist as to where the petitioner was hiding. She even threatened that she would break open the door of the clinic room. The respondent’s conduct was very indecent during her stay in Vettavalam. On 20.11.1985, the respondent left the family house at Vettavalam along with the petitioner’s son without his knowledge and consent. On 21.11.1985 she came back along with her parents in a car and the respondent’s father assaulted the petitioner’s mother and they also came to Kedar and Villupuram to create scenes. The petitioner’s mother had in fact lodged a complaint before Vettavalam Police. Therefore, according to the petitioner, from the very beginning of the marriage, the attitude of the respondent towards the petitioner was intolerable and she was causing all sorts of mental agony to the petitioner and indulging in repeated action of mental cruelty. In fact on 1.11 1985 the respondent went to the extent of making false allegation in the Court premises against the petitioner and his brother in a very vulgar way. She even made a false charge in front of the Court that the petitioner and his people were fraudulent. The respondent thereafter made a make-believe return to the petitioner’s home and stayed there briefly and went back in order to defeat the ground of desertion. It was, therefore, not possible to live with the respondent. The petitioner is an M.D. Graduate in Child Health and having reputation in the area. By the indecent behaviour of the respondent, the reputation of the petitioner was very much lowered. Therefore, the petitioner was forced to file the petition for divorce on grounds of mental cruelty.

5. In the counter, the respondent had denied all the allegations. The respondent comes from very rich family and her parents were rich people and they were not at all in need of money. The allegation that she had removed money from the clinic without the permission of the petitioner was false. The said allegation was purely invented for the purpose of the present petition. After the earlier petition was filed even though the respondent was granted interim maintenance she did not receive the amount, but willingly went to the petitioner’s house to live with him. The allegations that she was misbehaving and scolding the family members of the petitioner are all false. She had never falsely charged the petitioner with the theft of gold chain and that he was having illicit connection with other ladies. She did not send any anonymous letters. The petitioner was only wanting to desert her and to take a second, wife. The allegations that she had scolded the petitioner’s mother and beaten them with chapals, etc. were all false. The respondent has not made any false complaint about the alleged theft of gold chain. After the compromise in the earlier O.P. without even changing her clothes, she left for Vettavalam. But the petitioner did not care to accompany the respondent. The petitioner did not turn up at Vettavalam for nearly 15 days. Both of them did not have any relationship with each other subsequent to the compromise in the earlier O.P. The contention that the petitioner went to Cuddalore for 15 days to write the Executive Officer’s Test was false. The allegation that the respondent went to the hospital at Villupuram and made inquiries was also false. Since the petitioner did not turn up to the residence, she went to Villupuram to make inquiries about the petitioner. She did not create any scene in the hospital. The respondent did not make any false allegation against the petitioner and his brother. Since the petitioner was an M.D. Graduate in Child Health and was having good income. He did not want the respondent who was not well educated and perhaps she was not up to the expectation of the petitioner. She did not cause any mental cruelty to the petitioner and the petitioner had perhaps now taken a fancy for some other person and wants to divorce the respondent. In fact he made an attempt to the effect that he may be permitted to take second wife. But the respondent had refused the same. The respondent is apprehensive that the petitioner was having some illicit relationship with some lady Doctor and in fact when the petitioner had visited the house of the respondent he came with a lady Doctor and at that time the respondent questioned the petitioner. The petitioner stated that she was working along with him in the hospital. The conduct of the petitioner would show that the petitioner was in a desperate mood to get a divorce and marry second time. Since he is a public servant, he cannot marry unless he gets divorce from the respondent. The respondent had paid the petitioner a sum of Rs. 25,000/- as dowry at the time of marriage and also helped him on his educational career and he was highly ungrateful. He wanted to desert the respondent and to take some other person as his second wife. Therefore, the petition was not at all bonafide and devoid of merits.

6. The Trial Court found that the respondent/wife had caused mental cruelty to the husband, but at the same time after expressing that the wife may be given an opportunity to mend herself granted a decree for judicial separation instead of divorce. The Appellate Court, however, held that though there was evidence to show that both of them did not have proper understanding with each other there was no justification for the husband to seek divorce and hence held against the husband in both the appeals.

7. At the time of admission of the above miscellaneous second appeal, the following substantial questions of law has been framed in both the appeals

“Whether there was legal cruelty proved in this case as against the respondent ?”

8. Mr. M.V. Venkataseshan, learned Counsel appearing for the appellant took me through the judgment of the Trial Court having given specific finding in the context of mental cruelty alleged to have been caused to the appellant. The Trial Court had found that the appellant had not been treated properly when he was at the residence of the respondent. Subsequently, the appellant was also accused of theft of gold chain. It is also found that the respondent went to the hospital where the appellant was working and had behaved in a very abusive manner in front of others. Even while staying with her husband she used to get good for herself only from her parents place in Tiruvannnamalai. Thereby she was inflicting insults on her husband. Learned Counsel also referred to the pleadings as well as the evidence of the respondent and contended that she made no secrecy of her accusations against the appellant about his having illicit intimacy with other women. Such accusations themselves are sufficient to hold that the appellant was being treated in a very cruel manner. On the other hand, the Appellate Court had approached the issue in a perverted manner. The Appellate Court in fact agreed with the position that the respondent did not behave normally. But strangely the Appellate Court came to the conclusion as if whatever the respondent was doing should have been tolerated by the appellant. Learned Counsel relies on the judgment of the Supreme Court in Shoba Rani v. Madhukar Reddi, , in support of his contention that it was not necessary that there should be direct evidence of harassment or of the intention to treat with cruelty in order to establish cruelty. The Court can draw inference and decide on basis of preponderance of probabilities having regard to the nature of the conduct of the other spouse.

9. In V. Bhagat v. D. Bhagat, , in defence, averments were made in the written statement alleging that the husband and his family members were lunatics and suffering from mental imbalance and the husband was also subjected to cross-examination on the said aspect. It was held that the allegation in the pleadings and the cross-examination constituted mental cruelty.

10. In Gangadharan v. T.K. Thankam, , a Division Bench of the Kerala High Court held that mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of other party.

11. Learned Counsel for the appellant contended that the proceedings had been initiated in the year 1987 after they had started living separately from 1982 and there was absolutely no possibility of both of them living together again amicably and, therefore, there was no purpose in rejecting the prayer for divorce. In this context, learned Counsel for the appellant relies on the judgment of the Supreme Court in Chanderkala Trivedi v. Dr. S.P. Trivedi, . In that case, it was held on facts of the case that the marriage had become dead and it would be futile to send back the case to the High Court to decide afresh. Therefore, the decree for divorce was allowed to stand.

12. In Romesh Chandra v. Savithri, , the Supreme Court found on the facts of the case, that continuance of the marital alliance would be cruelty especially when the child born out of the wedlock had grown up. The husband had also expressed remorse and was willing to transfer his only house in the name of his wife to compensate his past mistakes. The Supreme Court under Article 152 directed the dissolution of the marriage subject to the transfer of the house in favour of the wife.

13. Learned Counsel for the respondent, however, contends that the Appellate Court had examined the evidence in greater detail and in proper perspective and there was no ground to interfere at the second appellate stage. Learned Counsel also took me through the oral evidence and pointed out certain features which, according to him, would be contradictory and unacceptable. Earlier also an O.P. had been filed and had been compromised and, therefore, the earlier charges cannot be pressed into service in the present petition. R.W. 2 is none other than their own son and he had been examined on the side of the respondent. There was no basis for the allegation that the wife had behaved in abusive manner about the appellant in the hospital in front of others. The respondent had returned immediately after she was informed that the appellant was not available in the hospital. In support of his submission that when the earlier petition had been compromised, the acts of cruelty which were alleged in the earlier proceedings are bound to be treated as condoned and that in the subsequent petition the same charges cannot be raised, learned Counsel relies on the judgment of the Himachal Pradesh High Court in Smt. Akash Sharma v. Ramesh Kumar Sharma, II (1991) DMC 525.

14. Reliance is placed on the observation contained in Tamizh Selvi v. Arumugam, I (1991) DMC 296=1990 (II) MLJ 133, that the mere allegation that the husband was living with another woman in illicit intimacy was not by itself an act of cruelty.

15. In support of his contention that the husband having condoned the acts of cruelty if any prior to the filing of the earlier petition and that Section 23 of the Hindu Marriage Act would apply to the advantage of the respondent, learned Counsel relied on the judgment of the Supreme Court in Dastane v. Dastane, .

16. Learned Counsel would also submit that considering that this is a matrimonial proceeding and the Appellate Court had found fit to sustain the marriage, this Court may not interfere which would have the result of breaking the family. The son’s evidence would show that at least the appellant was also responsible for the respondent to have adopted an intolerant attitude and, therefore, the husband cannot take advantage of his own mistakes. Reliance is placed on Section 23 of the Hindu Marriage Act, which holds that in any proceeding under the Act if the Court was satisfied that the party seeking relief was in any way taking advantage of his or her own wrong, the Court shall not grant the relief. The Appellate Judge had very fairly focussed the issue of welfare of the family and had held that except for some minor problems and misunderstandings, there was no room for taking the extreme step of granting divorce.

17. I have considered the submissions of both sides with seriousness which a matrimonial proceeding deserves. It is true that the Court shoulde generally as far as possible avoid taking a decision which would result in the disruption of the matrimonial home. At the same time, this Court has also to consider as to whether the decision rendered by the Courts below and the reasonings stated thereon are consistent with the evidence. On an overall consideration I am inclined to hold that the manner in which the Appellate Court had recorded its. findings and conclusions are found to be unsatisfactory in comparison with the detailed analysis of the evidence by the Trial Court. Not only the Appellate Court had refused to look into the pleadings and the evidence, but also gone to the extent of justifying the conduct of the wife without any proper reasons. It may be that the Appellate Court was interested in keeping the matrimonial tie intact. But in matrimonial proceedings, it is also important to see that parties come to Court only when the continued relationship becomes unworkable. Blind refusal to recognise the same, by giving over importance to sentimental views would ultimately render the provisions entitling divorce ineffective and meaningless. In this case, a reading of the pleadings and evidence disclose the conduct on the part of the wife which appears to be very inflexible and with an attitude of financial superiority of her own family, refusal to adjust with the conditions of life in the husband’s place, heaping insults on the husband and last but not the least, allegations of theft and frequent accusations of adultery against the husband. If these features do not justify the husband seeking divorce on the ground of mental cruelty, there will no justification for retaining the ground of mental cruelty as one of the grounds for divorce. Let us first take the pleadings of wife herself. In the counter she has repeatedly mentioned that she comes from a very rich family and did not care even to receive the interim maintenance which was awarded to her. This is stated in defence of husband’s allegation that she used to visit the clinic and twice she had removed the money from the clinic without his permission. This statement of husband had been made to substantiate that by her conduct the respondent was humiliating him by all means and would not leave him peacefully even in the place where he works. But the respondent takes this as an opportunity to highlight that her family was in a superior and comfortable financial position. She would further state that she had paid to the husband a dowry of Rs. 25,000/- and had also helped him in his educational career, but the husband was very ungrateful. If these facts are to be stated even in the pleadings which are generally drafted with sufficient care to avoid any blame on herself resulting in adverse impression, considering that she was opposing the petition for divorce, one could very well imagine, how she would have been behaving with her husband with the air of superiority that her own family is richer and well placed than that of her husband’s family.

18. In her evidence, she very frankly admits that she found it impossible to eat the equality of the rice which was used in her husband’s place and, therefore, she used to get food from her parents house in Thiruvannamalai. She also says that even now (after the filing of the petition for divorce), she was not prepared to live at Vettavalam (husband’s place). Even these admitted pleadings and the evidence on the side of the wife herself have been ignored by the Appellate Court. There cannot be any better material than her own admissions as above, to prove that by her conduct, she had been deliberately insulting and hurting her husband and his family with a show of financial superiority of her own family. Leave alone the traditional obligations of woman/wife in a Hindu society; even in a western family, such a behaviour is bound to be treated as clear instance of a wife torturing her husband.

19. Next comes the allegation by the wife that her husband had stolen a gold chain belonging to the wife. It was later found to have been misplaced. Even though the wife would contend both in the pleadings and the evidence that the she had never made such accusation, perusal of the exchange of notices between both parties clearly indicates that the respondent is not speaking the truth. In Ex. A7 legal notice dated 19.7.1982 it is stated that the husband cannot forget a blame on him of stealing jewel which the respondent had actually misplaced. Admittedly, no reply notice by the Advocate was sent on behalf of wife. But she herself wrote a letter on 9.11.1982 Ex. A9, in which she had not at all denied the said fact. All that she had stated in the said reply is that he (husband) could have pacified her by promising to buy one more gold chain. This aspect has also been not properly considered by the Appellate Court.

20. The allegation that the respondent has gone to the clinic/hospital where the appellant was working and had created a scene, is also a fact substantially proved and established by the appellant. Such conduct is bound to have adverse repercussion on his professional life and discharge of his duties apart from the series of conduct of the respondent resulting in the humiliation of the appellant in front of his patients, staff, etc. which would clearly establish mental cruelty suffered by the appellant. The fact that she went to the hospital on that particular occasion is admitted by the respondent. She would only state that she did not create any scene and that she simply came back without creating any scene. Apart from the above facts, RWs. 1 and 5 have also spoken about the incidents. But the manner in which the Appellate Court tries to justify the conduct of the respondent is not acceptable. The Appellate Court buttresses the conduct of the respondent stating that the respondent should have been disappointed about the absence of the petitioner in the hospital and, therefore, could have lost her temper. This is a special pleading by the Appellate Court which is not permissible. It is not the case of the respondent that she had lost her temper. She would contend that she did not misbehave and she came away without creating any problems.

21. Last but not the least, the accusation of adultery against the appellant is affirmed in the pleadings of the respondent which is as follows :

“The present petitioner perhaps has now taken a fancy for some other persons and he wants to divorce this respondent and in fact an attempt was made by the present petitioner to the effect that he may be permitted to take a second wife and the respondent may also live along with the second wife. But this respondent stoutly refused for the same. In fact, this respondent is apprehensive that the petitioner is having some illicit relations with some lady doctor when in fact at one occasion,, the petitioner had visited the house of the respondent with his lady doctor and at that time when the respondent questioned the petitioner stated that she is working along with him in the hospital.”

22. Therefore, the stand taken by the respondent in the evidence that she had never accused him of adulterous living is nothing but a lie and cannot at all be accepted. It is pertinent to note that in the chief examination, the petitioner had clearly stated that the respondent had accused him of having illicit relationship with his own sister-in-law. Strangely, there is no cross-examination of P.W. 1 on this aspect. Therefore, the stand taken by the wife in her oral evidence denying having made such accusation is only an afterthought to avoid the decree for divorce. While dealing with this issue, the Appellate Court had chosen to find in favour of the wife without making any reference to the pleadings of the respondent herself as extracted above. Therefore, the said finding can only be treated as perverse and not based on any evidence. In fact in the face of her own allegations in the pleadings, learned Counsel for the respondent was unable to raise the contention that the wife had not projected any allegation of adultery on the part of the respondent, but will only say that a wife making such allegations against the husband was not so very serious as in the case of a husband accusing wife of adultery and that, therefore, the same will not amount to cruelty.

23. In this context, learned Counsel for the respondent relies on the judgment of M. Srinivasan. J. as he then was, in Tamizh Selvi v. Arumugam (supra). According to the learned Judge, it cannot be said that an allegation that a man is living in illicit intimacy with another woman, even if such allegation is false, will amount to cruelty.

24. With due respect I am unable to agree with the said view. In my opinion, it is not proper to mix up sociological notions and reactions while considering the sacred and personal relationship between a husband and a wife. Husband and wife constitute a family and the house is their fort. What happens within four walls of a house has its severe impact on the mind of the respective spouse. One spouse accusing another spouse of adultery, irrespective of sex, is the worst form of mental cruelty. The relationship of a husband and wife is built upon on mutual trust, devotion and confidence with each other. An accusation of adultery either by the husband or wife is bound to have serious adverse influence on such mutual trust, confidence and mental peace. If the said element of confidence and trust is lost, there can be absolutely no peace of mind and no rapport between the two. Therefore, there is no justification in being diverted by the reasons behind why adultery was not made an offence as against woman under the Indian Penal Code which was drafted more than a century ago, which appears to have weighed with the learned Judge. Social values and ideas have undergone many changes. Further we art only concerned with the impact on personal relationship, mutual respect and confidence between spouses. In Shoba Rani v. Madhukar Reddi (supra), the Supreme Court observed that the Court should not import its own notions of customs and society while considering allegation of cruelty :

“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 complain’ 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 in Sheldon v. Sheldon, 1966 (2) All. ER 257, 259, “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 there is no limit to the kind of conduct which may constitute cruelty. 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 (sic) realm of cruelty.”

25. Therefore, with due respect I am unable to agree with the views expressed in 1990 (II) MLJ 133, above. The issue being purely sociological and not legal, there is no need for reference to a Large Bench especially in view of the judgment of the Supreme Court, cited above.

26. Therefore, I am unable to sustain the views of the Appellate Court which did not have advantage of watching the quality and demeanour of the witnesses as by the Trial Court. In fact, the Appellate Court had agreed that the conduct of the wife was temperamental and the result of anger. But the Appellate Court would say that such anger was normal and to be tolerated by the husband. I do not agree with the said views.

27. In Collins v. Collins, 1963 (II) All. ER 966, (House of Lords) Lord Reid observed as follows :

“A Judge does and must try to read the minds of the parties in order to evaluate their conduct. In matrimonial cases we are concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people.”

28. In the present case, the Appellate Court had proceeded on a surmise that the wife would not have intended any harm or cruelty as against the husband. In the above quoted judgment the House of Lords made it clear that the intention of the parties was really irrelevant. What is necessary to be seen is the effect of the conduct of one spouse on the other. Lord Reid observed as follows :

“Why should we have to drag in intention at all. It seems to me a very poor defence to say “I know the disastrous effect on my wife of what I have been doing. Probably I could have resisted temptation if I had really tried. But my conduct is innocent because I had not the slightest desire or intention to harm my wife. I have acted throughout from pure selfishness.”

29. In the same concurring judgment Lord Evershed observed as follows :

“In my opinion, however, the question whether one party to a marriage has been guilty of cruelty to the other or has treated the other with cruelty does not, according to the ordinary sense of the language used by Parliament, involve the presence of malignity (or its equivalent); and if this view be right it follows, as I venture to think, that the presence of intention to injure on the part of the spouse charged or (which is, as I think, the same thing) proof that the conduct of the party charged was “aimed at” the other spouse is not an essential requisite for cruelty.”

30. In an earlier judgment in Jamieson v. Jamieson, 1952 AC 525, Lord Reid dealt with mental cruelty and held that there cannot be a more grave matrimonial offence and held as follows :

“But there can hardly be a more grave matrimonial offence than to set out on a course of conduct with the deliberate intention of wounding and humiliating the other spouse and making his or her life a burden and then to continue in that course of conduct in the knowledge that it is seriously affecting his or her mental and physical health. Such conduct may consist of a number of acts each of which is serious in itself, but it may well be even more effective if it consists of a long continued series of minor acts no one of which could be regarded as serious if taken in isolation. Once it is established that physical violence is not a necessary ingredient of cruelty and I think that that has long been recognised by the law of Scotland then I can see no justification in principle for requiring that the deliberate acts of the defender must be of a certain character, and I know of no authority which requires me to make any such distinction.”

31. The only other point which was raised by the respondent which has to be dealt with is that the fact that the plaintiff had filed an earlier petition for divorce would mean that the complaining spouse had condoned the past conduct and, therefore, will not be entitled to raise the same ground again in a subsequent petition for divorce, I am unable to agree. The mere hopeful retreat by one spouse with the idea that the other spouse would properly behave at least in future, cannot have the result of completely wiping out the misconduct. The past misconduct would be certainlpast y relevant in assessing the cumulative effect of the conduct of offending spouse on the victim spouse. Further, one of the terms of understanding was that the respondent will live with the petitioner at Vettavalam which is the husband’s place. Now in the evidence she says that she was not prepared to go to Vettavalam. Therefore, there is no justification in stating that the compromise in the earlier proceeding amounts to condonation.

32. A learned Single Judge of Bombay High Court in Chandrabhagabai v. Rajaram, , had pointed out that the condonation is always coupled with the implied condition that the offending spouse would be of good behaviour. The observations are as follows :

“Condonation has been defined from time-to-time with reference to some particular aspect of it but no compendious definition has been attempted. It is regarded as forgiveness either express or implied for a breach of matrimonial offence with the implied condition that the offence will not be repeated. In respect of its operation condonation has been defined as a “blotting out of the offence” so as to restore the offending party to the same position which he or she occupied before the offence was committed.

The phrase “blotting out of the offence” in this connection is not used in its literal sense, because an offence having been committed cannot actually be blotted out and because it is recognised that condonation is always coupled with an implied condition of the offending spouse being in future of good behaviour. Where there is no breach of the condition after condonation forgiveness stands as complete, absolute and irrevocable. Therefore, condonation consists of a factum of reinstatement and animus remittendi”

33. I am also unable to accept the contention of learned Counsel for the respondent based on Section 23 of the Hindu Marriage Act namely, that the husband cannot take advantage of his own wrongs. Except for stating the said statutory principle, on facts, learned Counsel is unable to point out as to what was the mistake on the part of the husband. On the other hand, it is the respondent who had given cause for the misunderstandings. The husband’s refusal to meet her or to take her back, cannot be cited against him because his conduct was only the result of provocative behaviur. of the respondent herself. The respondent cannot try to take advantage of the inevitable consequences of her own conduct.

34. Therefore, here is a case in which the respondent has been indulging in a series of provocative conduct as against the husband as mentioned above inclusive of accusing him of theft and adultery. She has also been giving frequent pinpricks, by even visiting his work place, and behaving in a very violent manner in front of others thereby creating problems to the husband. She would not even condescend to take food prepared in the husband’s house but would insist on the food being brought from her own parents’ home. She comments about the quality of food in the husband’s place. The cumulative effect of the various actions on the part of the respondent, clearly establishes mental cruelty. In spite of the aforementioned reasons, the Trial Court instead of granting divorce, granted only a decree for judicial separation. In the said background there was absolutely no justification for the Appellate Court to have interfered with the decree of the Trial Court.

35. In the context of the Trial Court having granted only a decree for judicial separation and not for divorce I am unable to sustain the grounds raised by the appellant herein in the said context. The Trial Court after considering the entire evidence had expressed hopes and had exercised its discretion to give an opportunity to both parties to reconcile themselves if possible. Therefore, I do not find any reason to interfere with the discretion thus exercised and the relief as granted by the Trial Court.

36. In the result, C.M.S.A. No. 22 of 1991 is partly allowed confirming the order of the Trial Court in O.P. No. 53 of 1987. C.M.S.A. No. 23 of 1991 is dismissed. No costs.