Judgment - Divorce - Desertion

Court: Delhi High Court

Bench: JUSTICE Mrs. Sunanda Bhandare

Sanyogta Verma Vs. Vinod Verma On 31 May 1991

Law Point:
Husband’s petition for divorce on ground of wife’s desertion––Period of desertion established––Onus to prove that desertion was not intended or that there was reasonable cause to desert––It is on the deserting spouse––No plausible and convincing reason proved by deserting spouse for leaving matrimonial home––Divorce on ground of desertion granted.

JUDGEMENT

1. This appeal has been filed by the appellant wife against the judgment of the Additional District Judge dated 6.9.1988 whereby the petition filed by the respondent-husband under Section 13 of the Hindu Marriage Act was allowed on the ground of desertion.

2. The brief facts of the case are as follows:

The marriage between the parties was solemnised on 3.5.1980 at Delhi according to Hindu rites. One female child was born out of this wedlock on 5.2.1981. initially, the divorce petition was filed by the respondent herein on 5.7.1983 on the ground of cruelty, however later on, on 24.8.1984 an application was filed by the respondent seeking amendment of the divorce petition by including an additional ground of desertion. On 22.10.1984 the amendment was allowed and the divorce petition was contested by the appellant wife on both the counts i.e. cruelty as well as desertion.

3. It was alleged by the respondent husband that the appellant wife was suffering from mental and multiple diseases prior to the marriage and was undergoing regular treatment in various hospitals, however this fact was concealed from him and as such a fraud was committed by the appellant and the respondent was misled into marrying her. It was alleged that the appel­lant was aggressive in her nature and it was very difficult for the respondent to live with her. The appellant as well as her parents refused to get her medically examined and in fact the ailment of the appellant was concealed from the respondent even after marriage for a long time and the treatment was given to the appellant secretly by her parents. It was alleged that the mother of the appellant used to come to the house of the respondent on the pretext of meeting her and gave her medicine on the sly and the respondent was told that she was being treated for earache. The respondent further alleged in the petition that after 40 days of the birth of the child, the appellant wife went to her parents’ house on a ceremonial visit, however later after about 2/3 days the respondent was called to the house of the appellant and was informed that the appellant had developed some old illness for which she required treatment and thus the respondent was asked to take the baby child with him. Accordingly, the respondent took the child back to his own house. The appellant got treatment from various doctors and remained admitted in St. Stephen Hospital from 19.8,1981 to 26.8.1981 where she was diagnosed as a patient of Hypomania. It was alleged that the true ailment of the appellant was always concealed from the respondent and he was all the time given the impression that the appellant was only treated for ear ailment and even her treatment and admission in St. Stephen Hospital was concealed from the respondent. The appellant remained at her parents’ house for about six months and joined back the res­pondent in the second week of September 1981. It was further alleged that the appellant had deserted the child while the child was just 40 days old and the respondent had looked after the child with great difficulty since then. In fact, it was alleged that after about 13 days of the birth of the child, the respondent was taken to Dr. Roshan Lal Nursing Home, Naveen Shahdara whereafter checking the newly born child the respondent was told that the child should not be allowed to have mother’s milk otherwise even the child may inherit the same disease as the mother. The respondent further alleged that the appellant’s brother’s marriage was held on 3.12.1980. The appellant had already left the matrimonial home and gone to the parents’ house after a quarrel with his mother. However, the respondent attended the marriage because the brother of the appellant came and requested him to attend the marriage. When the respondent went there he was told by the appellant that she did not have Sandals and asked him to purchase the same for her from Karol Bagh. When he took the appellant to Karol Bagh for shopping, they decided to go to a Restaurant. While they were sitting in the Restaurant the respondent told her to seek apology from his mother because she had made a mistake in quarreling with his mother. However, the appellant instead of agreeing to apologies became furious and started hurling abuses at the respondent in the Restaurant itself and as a consequence lowered his prestige before the general public. On 27.9.1981 the appellant tried to jump from the top floor of the house if the respondent, however she was saved because by chance he had arrived from the market. The appellant was shouting at the top of her voice that see shall jump from the top floor and wanted to commit suicide because she wanted to involve the respondent, his parents, brothers and sisters in a criminal case. The respondent further stated in the petition that all the brothers and sisters of the respondent are physically handicapped and incapable to move out of the house independently and instead of sympathising with them, the appellant treated them with cruelty. The respondent alleged that the appellant had suicidal tendency and in fact his father had lodged a report with the local police on 2/3.10.1981 vide DD Entry No. 2IB. The respondent also relied on another incident which took place in the year 1981 near Holi festival when the appellant had refused to prepare tea for his friend which had lowered the prestige of the respondent in the eyes of his friend as well. The respondent also alleged that the appellant refused to discharge her matrimonial obligations and quarreled with him on trivial matters.

4. The respondent alleged that the appellant finally deserted him on 21.10.1981. It was submitted that on 20.10.1981 the appellant’s brother and maternal uncle came to the house of the respondent and told that they had come to take the appellant back because the father of the appellant was sick. The respondent however told them that the appellant will go to her parent’s house only on the next day i.e. on 21.10.1981 and accordingly the appellant went to her parents’ house on 21.10.1981 on the pretext of meeting her ailing father and did not return thereafter. The respondent went to bring her back on 6.11.1981 but the mother of the appellant frankly told him that she will not send appellant with him at any cost because the appellant could not live with a man like him. The mother and brothers of the appellant abused the respondent at that time though the respondent pleaded for her return. It was thus alleged that the appellant had withdrawn herself without any reasonable cause from the matrimonial obligation from 21.10.1981.

5. In her written statement, the appellant denied all the allegations made by the respondent in the petition and submitted that in fact it was the respondent who had turned her out of the house in three bare clothes and snatched the minor child from her. She denied that she suffered from any mental or multiple diseases prior to her marriage or thereafter. Thus, it was submitted that there was no question of any concealment of the illness. In fact, it was alleged that it was the respondent who was cruel to her because he did not allow her to feed the minor child on the ground that the appellant was suffering from a disease called Hypomania. The appellant denied the charge-of cruelty. According to the appellant, a few days after the marriage the mother of the respondent started taunting her for insufficient dowry and demanded Fridge, Dunlop Gaddas, Car etc. She expressed her inability and as a result she was harassed and mentally tortured by her in-laws. When the child was about 6/7 days old the respondent stopped talking with her at the instance of his mother who falsely told him that she was suffering from Cancer and left the appellant forcibly at her parents house with the child after 40 days but came back the next day with his brother’s wife and took back the child with an assurance that he will bring the child back. However, the respondent did not return the child for about 5/6 months. Then the appellant herself went to the house and started living with the respondent. The respondent again reiterated his demand of dowry and demanded Rs. 60,000 from her mother however her mother with great difficulty arranged Rs. 4000 and paid the same to the respondent which he never returned. The appellant further alleged that the wife of the respondent’s brother committed’ suicide by burning herself because of bad treatment of her husband and in-laws and because the appellant knew the correct story she was being ill treated. The appellant contended in the written statement that the respondent and his family members tried to set her declared as insane and lodged false report against the appellant with the police and the police in turn forcibly got signatures of the appellant on a statement that if she happens to die of suicide or otherwise the respondent would not be responsible. According to the appellant, after the death of the wife of respondent’s brother on 11.9.1981 the respondent and his sister gave severe beating to the appellant on 14/15.9.1981. Therefore, she called her brother and her maternal uncle on Diwali day when the harassment to her became unbearable. When her brother and maternal uncle came to her house the respondent did not send the appellant with them but about 3/4 days after Diwali she was turned out of the house by the respondent. She further alleged that the respondent had refused to keep her and thus she had no option but to live with her parents and all her dowry articles including TV, gold set etc, were left behind with the respondent and thus she sent a lawyer’s notice dt. 4.1.1983 to the respondent demanding return of her dowry articles valued at Rs. 80,000. The appellant also denied the allegations that she tried to commit suicide as alleged by the respondent or that any such incident ever took place. In fact, she asserted that the report lodged with the police on 2.10.1981 was false and was made only to harass her.

6. On the pleadings of the parties the following issues were framed by the trial Court on 17.5.1984 and 22.7.1987:

1. Whether the respondent has treated the petitioner with cruelty, as alleged in the petition? OPP.

2. Whether this petition is not legally maintainable as alleged in para 1 of the preliminary objection of the written statement? OPR.

3. Relief.

4. Whether the respondent is entitled to get the custody of Kumari Sapna, as claimed by the respondent? OPR

5. Whether the respondent has deserted the petitioner as alleged by the petitioner? If so, its effect? OPP.

7. On issue No. 2, the Additional District Judge recorded the state­ment of the appellant herself and observed that she was capable of defending herself and there was no necessity of appointing a legal guardian. Thus, this issue was held against the respondent. However, the Additional District Judge on the basis of evidence on record held issue No. 1 against the respondent and observed that though there might have been small quarrels or trivial instances between the parties it cannot be said that the appellant was guilty of cruelty. On issue No. 5 the Additional District Judge gave categorical finding that the appellant went to her parents’ house of her own and remained there for a period of six months leaving behind the 40 days old child with the respondent for getting herself treated and joined the respondent only after six months whereafter she remained with him for 20 days and went back to her parents’ house about 3 or 4 days prior to Diwali on 21.10.1981 as alleged by the res­pondent or on 24.10.1981 as alleged by the appellant and never returned to the respondent though he had gone to take her to bring back to the matrimonial home. The Additional District Judge observed that even in the notice sent by the appellant on 4.1.1983 the appellant had categorically stated that her dowry articles be returned, however she did not express her desire to go back to the matrimonial home. In the result, the Additional District Judge held that the appellant had not shown her willingness to go back to her matrimonial home and thus has deserted the respondent. Issue No. 4 was framed on the application moved by the appellant under Section 26 of the Hindu Marriage Act wherein she claimed the custody of the child Kumari Sapna. the Additional District Judge held that the child had been left by the appellant with the respondent right from the time when the child was 40 days old and had not cared to get the child for six months thereafter. Even when she left the house after Diwali in October 1981 she left the child with the respondent. The child had been with the respondent all through thereafter and the appellant did not seek the custody of the child till the application was filed under Section 26 of the Hindu Marriage Act during the pendency of the divorce proceedings. After considering the welfare and interest of the child the Additional District lodge refused to grant custody of the child to the appellant.

8. The respondent husband has also filed a Cross Appeal being FAO(M) 33/89 against the said judgment challenging the finding of the Additional District Judge on issue No. 1 i.e. the ground of cruelty. For the sake of brevity and convenience both the appeals are being disposed of by this common judgment.

9. A preliminary objection was raised by the appellant-wife regarding the maintainability of the divorce petition on the ground of desertion. It was submitted that the respondent husband filed the petition for divorce on 5.7.1983 whereas the appellant-wife had allegedly left the matrimonial home and deserted the respondent in October 1981. Thus, two years period had not lapsed between the date of alleged desertion and the date on which the petition was filed. It was submitted that though originally the respondent-husband had filed the divorce petition on the ground of cruelty, later on by way of amend­ment which was allowed on 22.10.1984, the respondent-husband had urged on additional ground of desertion. Thus, the amendment related back to the date of the filing of the original petition.

10. Learned counsel for the respondent-husband however submitted that the appellant-wife was precluded from raising this preliminary objection at this belated stage. It was submitted that the appellant-wife did not raise this objection in the pleadings when she filed the written statement before the Additional District Judge after the amendment of the petition or in reply to the application for amendment under Order 6 Rule 17 of the Code of Civil Procedure moved by the respondent-husband. The objection was also not raised during the arguments before the Additional District Judge either at the time when the amendment application was argued or when the case was finally argued after conclusion of the evidence. Learned counsel submitted that the appellant cannot be allowed to raise this point for the first time in the appeal. Learned counsel further submitted that the application for amendment to incorporate the ground of desertion was made well after two years of the alleged desertion. Thus, the two years period is to be counted from the date, the application for amendment was allowed or in any event from the date the respondent-husband filed the application for amendment. Learned counsel submitted that it would not relate back to the filing of the original petition because the original petition did not contain the ground of desertion. He relied on the judgment of the Bombay High Court in Suren Chanderkant Shah v. Rita Suren Shah, I (1985) DMC 329 and judgments of this Court in Dhanjit Vadra v. Smt. Beena Vadra, 1990 (3) Delhi Lawyer 43 and Jawahar Lal Mamtani v. Bhag Chand Motumal Mamtani and Another, ILR 1981 (1) Delhi 1 in support of his contention that two years period is to be counted from the date the application under Order 6 Rule 17 was allowed.

11. Though it is true that the appellant did not raise the preliminary objection before the Additional District Judge either in the pleadings or at the time of arguments, considered it appropriate to allow the appellant-wife to argue the preliminary point because it is a pure question of law. However, on merits I find that this contention is without any force. The Bombay High Court in Shah’s case (supra) was concerned with some what similar facts and it was held that the time for desertion which was not completed when initially divorce petition on other ground was filed would he held to be completed since amendment incorporating ground of desertion was filed after the completion of requisite two years. The Court observed thus:

“Shri Samual, learned counsel appearing on behalf of the appellant/petitioner reiterated the two grounds agitated before the trial Judge for grant of decree of divorce. As regards the first ground of desertion, the learned counsel very fairly stated that the said ground was not available to the petitioner on the date of the institu­tion of the petition, but during the pendency of the petition amend­ment application was made and granted by the trial Judge and the amendment cannot relate back to the date of filing of the petition, and the trial Judge was justified in considering whether the petitioner could get divorce on the ground of desertion as till the date of grant of amendment the wife had not returned back to the matrimonial home. Smt. Shenoy, learned counsel appearing on behalf of the respondent, on the other hand, submitted that the trial Judge should not have granted amendment and in any event the amendment relates back to the date of filing of the petition and as such it must be held that the ground was not available, I am not impressed by the sub­mission advanced on behalf of the respondent, because it is not in dispute that the parties never cohabited after September 12, 1976. In case the learned Judge had not granted the amendment, that would have led the petitioner to file another petition and grant of amend­ment avoided multiplicity of proceedings. Merely because the amend­ment was granted during pendency of the petition, it does not relate back to the date of filing of the petition, but the ground would become available to the petitioner only from the date of the grant of the amendment. It is always open for the opposite party to establish that inspite of availability of the ground the Court may not pass the decree because or certain circumstances transpired during the inter-­regnum that is from the date of filing the petition and grant of amendment.”

A learned Single Judge of this Court in Dhanjit Vadra’s case (supra) while dealing with the question of amendment bringing subsequent events on record has observed as follows:

“It is now well established by a decision of a Division Bench of this Court in the case of Jawaharlal Mamtani v. Bhagchand. Motumal Mamtani and Another, 1981 (1) ILR Delhi (1) that an amendment to take into consideration subsequent events would necessarily be effective from a future date and not the date of the suit. In view of the peculiar circumstances of the present case, the subsequent events which occurred during the pendency of the proceedings, the nature thereof, as also the real intention of the parties expressed in the two applications, the trial Court ought to have allowed the amendment prospectively with effect form the date when the first impugned order was made.”

The learned Single Judge of this Court in the above-mentioned case relied on a Division Bench judgment of this Court in Jawaharlal Mamtani’s case (supra) wherein it is observed that an amendment to take subsequent events will apply from the date of amendment and not from the date of the suit. I am in full agreement with the observations of the Bombay High Court in Shah’s case (supra) and this Court in Danjit Vadra’s case (supra) that amendment to take into consideration subsequent events would be effective from the date the amendment was sought and allowed and not from the date of the institution of the original suit.

12. Now, admittedly in the present case, the two years period expired during the pendency of the divorce petition filed by the respondent-husband on the ground of cruelty. This was undoubtedly a subsequent event cannot relate back to the original petition. Further, it would have been open to either parties to file a totally separate proceedings on the ground of desertion after the expiry of the requisite two years even though the other divorce petition filed by me respondent-husband on the ground of cruelty was already pending. If that be the position, I see no reason why a party cannot seek amendment of the pending proceedings because that would also avoid multiplicity of proceedings. The preliminary objection is thus dismissed.

13. Now coming to the merits of the case. It is not disputed by the appellant-wife that the appellant-wife and the respondent-husband have not cohabited after October 1981. It is however submitted by the appellant wife that she was compelled to leave the matrimonial home because circumstances made it difficult for her to continue to live in the matrimonial home, in fact, it is her case that she was driven out of the matrimonial home with her few clothes and she was always willing to come back to the husband to live with him but the husband did not want her back. It is also not disputed by the appellant-wife that the child remained with the respondent-husband all throughout though the appellant-wife had gone to her parent’s house after 4u days of the birth of the child and lived there for six months and- even after she went to her parents house again in October 1981. It is also not disputed that the appellant-wife did not seek custody or access to the child till the respondent-husband filed the divorce petition. After he filed the divorce petition she claimed interim custody of the child which was rejected but she did not appeal against that order nor did she seek any access to the child or make any attempt to meet the child all through out the pendency of the divorce proceedings. The appellant-wife however submitted that since she was having no means to look after the child and the child was being looked after by the husband she did not wish to disturb the child and, therefore, she did not ask for the custody or seek access to the child. It was submitted that not only the factum of desertion but also the intention to bring cohabitation permanently to end must be proved. Now, it of well settled that the onus to prove that desertion was not intended or that there was reasonable cause for her to leave the matri­monial home is on the deserting spouse.

14. I have gone through the evidence led by the parties and I find that the appellant-wife has not put forward any plausible and conceiving reason for leaving the matrimonial home. The appellant-wife went to her parents house on 13.3.1981 and stayed with her parents right upto September 1981. All through this period the child was with the respondent husband. There is nothing on record to show that the wife made any attempt to come back to her matri­monial home or to seek access to the child. Then again the appellant wife visited the matrimonial home in September 1981 and stayed with the husband till mid October 1981. There is a slight variation in the story but up by the appellant-wife for leaving the house again in October 1981 and the story put up by the respondent-husband for the reason she left the matrimonial home. It is not disputed that the brother and maternal uncle of the appellant-wife had come to the matrimonial home to take her back to her parents house.

15. There is no evidence on record to show that she was forcibly thrown out of the matrimonial home. In fact, admittedly the respondent husband visited the house of her parents on 6.11.1981. According to the husband, he was unable to meet the appellant-wife because the mother of the appellant refused to let him meet her. The appellant wife however denies that the mother refused to allow to meet her. In fact, she has stated that the husband visited her 2 to 3 times after Diwali at her parental home to take her back by playing a fraud. She has admitted that he left her at the bus stop. Thus, on her own showing she had not returned to her matrimonial home out of her own volition. There is also nothing on record to show that she made any attempt on her own to go back to her husband and to the matrimonial home. On repeated questions being asked to the appellant-wife whether she made any attempt to meet the child or come back to her matrimonial home, she has given very evasive answers that she tried to meet the child 2/3 times but she did not remember either the date or the month or the year of the visits. In fact, instead of returning back, on 4.1.1983 a legal notice was sent by the appellant-wife to the respondent-husband asking for the return of the dowry. In this notice she did not indicate her intention to return back to the matri­monial home nor did she ask for access to the child and custody of the child. It was however submitted by the learned counsel for the appellant-wife that before two years period had expired the divorce petition was filed on 5.7.1983. Thus, the question of the intention of the appellant to go back did not arise. He submitted that the moment the divorce petition was filed it was clear to the appellant that she was not welcome in her husband’s house. I find no merit in this contention because the divorce petition was filed only on 5.7.1983 i.e. much after the appellant-wife had sent the legal notice to the husband. It was submitted by the appellant-wife that she could not return to the matrimonial home because the doors of the house were shut to her after the divorce petition was filed by the husband. It was submitted that in reply to the notice sent by the appellant-wife, the husband did not ask the appellant to return back to the matrimonial home which showed that she was not welcome in the matrimonial home. I find merit in this submission. The first step of sending the notice was taken by her and she ought to have expressed her desire to go back. The fact that the legal notice issued by the respondent-husband is virtually the same as filing a suit. and once legal proceedings are initiated, the attitude becomes hardened. There was thus no question of the husband calling the wife back to the matrimonial home. Moreover, in her statement in Court she has stated that she will go back to her husband only if he lived separately. It is clear that after October 1981 the appellant-wife did not have any intention of returning back to the matrimonial home. Though two years period expired during the pendency of the divorce petition filed by the husband, in my view, there is enough evidence to show that the wife had no intention of going back at any stage. The conduct of the appellant-wife as regards the child is not at all natural. In the first Instance she left a girl child approximately 40 days old with the husband and made no attempt whatsoever to even meet the child or seek her custody for almost six months. Then again, she did not ask for the custody or access to the child in the legal notice nor did she make any attempt to meet the child till the divorce petition was filed.

16. In my view, therefore, the findings of the Additional District Judge cannot be faulted and does not require any interference in this appeal.

17. Now coming to the question of cruelty. It was submitted by the res­pondent-husband that the fact that the appellant-wife tried to commit suicide itself amounted to cruelty. He relied on Dr. N.G. Dastane v. Mrs. S. Dastane AIR 1975 SC1534, = I (1981) DMC 293: Harbhajan Singh Monga v. Amarjit Kaur, AIR 1986 MP 41 Smt. Savitri Balchandani v. Moolchand Balchandani, AIR 1987 Delhi 52,=1(1987) DMC 330 Smt. Shakuntala Ghai v. Shri O.P. Ghai, AIR 1981 Delhi 53=19 DLT (1984) 64 in support of his contention that threats to commit suicide or attempts to commit suicide or cruelty inflicted upon on self by a spouse may constitute cruelty to the other spouse.

18. In the present case it is alleged that the appellant attempted to commit suicide by jumping from the roof on 27.9.1981 and she gave repeated threats of suicide thereafter. According to husband, she threatened to commit suicide at a time the family was in distress when another female member of the family i.e. respondent’s brother’s wife had committed suicide. According to the appellant wife, her sister in law had committed suicide because of the cruel treatment given by the family of the respondent and because of the dowry demands made by them and a false statement was recorded by the police that if the appellant-wife died an unnatural death no one from the family of the respondent-husband could be held responsible. The respondent -husband has also not denied that his sister-in-law committed suicide, however it was submitted that the sister-in-law did not commit suicide because of the cruelty inflicted by the respondent’s family on the sister-in-law. The Additional District Judge has not dealt with this allegation in his judgment, however I have gone through the evidence on record to ascertain whether this allegation has any basis.

19. I find that though the husband has in the amended petition alleged that the wife threatened to commit suicide and a police report was lodged by the father of the husband contemporaneously, however he has not led satisfactory evidence to prove this case. The wife denied the allegation in her written statement and in her oral statement in Court. The husband has reiterated the allegation in his statement so has his father but no other witness has been pro­duced to prove this allegation. Furthermore, I find that there is discrepancy between the statements of the husband and his father. Though, it is alleged that a police report was lodged, witness from the police station has not been examin­ed to prove the allegation. According to the husband his 18/19 years old sister was in the home on the day the wife tried to jump from the roof but she has not been examined nor is any neighbour who would have seen the incident has been examined to prove this allegation. The husband submitted in his petition that the incident was reported to the wife’s mother and on the next day she visited their house and admonished her. However, though the wife’s mother came in the witness box she was not confronted with regard to this episode. Thus, in my opinion, this allegation is without any basis.

20. It was then alleged that the wife left the child with the husband since she was 40 days old and that amounted to cruelty. Considerable stress was laid by the husband regarding the non-co-operation of the wife towards the handicapped family and concealing her illness. It is also alleged that the sending of legal notice by the wife also amounted to cruelty. Some other quarrels over tea in the market are also relied on by the husband to show that the wife was guilty of cruelty.

21. The Additional District Judge rejected the petition on the ground of cruelty because he found that the quarrels over tea and in the market are too trivial. The Additional District Judge however has not considered the order allegations at all.

22. From the evidence on record I find that the wife had been suffering from an ailment of some sort and she was being treated for that right from the beginning. There is evidence to show that the ailment was concealed from the husband for some reason or the other it ay be out of fear that the husband may leave her but the fact remains that even when she was got admitted to St. Stephen Hospital after her delivery neither the wife nor her parents considered it necessary to inform the husband about the illness. If the wife had suffered only from an ear-ache, there would have been no reason to hide this fact from the husband. Though, it was suggested by the wife that the husband wanted to prove her to be insane, her own behaviour has not been explained by the wife. It also appears that when the wife went to her parental home after the child was 40 days old, the parents did not choose to send her back to the matrimonial home because they wanted their daughter to be properly treated. To my mind, a suspicion created in the mind of the husband appears to have aggravated the matter. The allegation of the husband that the fact that the child was left with him since she was 40 days old also amounted to cruelty is not without any basis. Leaving a child with the husband per se may not amount to cruelty but not even bothering to enquire about a girl child would certainly amount to Cruelty. It is also well-settled that making of false, scandalous and malicious allegations against a spouse may also amount to cruelty. In fact, in Savitri’s case (supra) the allegations made in the written statement or letters written after the divorce proceedings were initiated by the spouse, have been held to be cruelty Admittedly, five members in the family of the husband are handicapp­ed because they suffered from Polio. They may not have been totally depen­dant on the husband for their physical survival but certainly, the husband being the only physically healthy person in the family would look forward to his wife in sharing his family responsibilities. Once, the wife deserted the house leaving behind a child, one more responsibility of the child on the husband made the matters worst for the husband.

23. It is well-settled that under Section 10(l)(b) of the Hindu Marriage Act harm or injury to health, reputation, mental happiness, the working career or the like would be an important consideration in determining whether the conduct of the spouse amounts to cruelty. It is determined primarily by its effect upon the particular person complaining of the Acts. As held by the Supreme Court in Dastane’s case (supra), the Court has to deal with not an ideal husband and ideal wife but with a particular man and woman before it. The Supreme Court has held as follows:

“The enquiry, therefore, has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. It is not necessary, as under the English law, that the cruelty must be of such a character as to cause “danger” to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly, danger to life, limb or health or a reasonable apprehension of it is a higher require­ment then a reasonable apprehension that it is harmful or injurious for one spouse to live with the other.”

24. In my view, the allegations made by the husband must be viewed in isolation. The cumulative effect of the conduct of the wife amounted to cruelty which resulted in destroying the ends and objects of matrimony.

25. It was contended by the wife that the husband having gone to bring back the wife to his house as alleged by him on 6.11.1981 or the fact that the husband allowed her to stay with him for a month in September, October 1981 amounted to condonation of cruelty. I find no merit in this submission. The Supreme Court in Dastane’s case (supra) has observed as follows:

“Condonation means forgiveness of the matrimonial offence and the restoration of 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: The Law and Practice of Divorce and Matrimonial Causes by D. Tolstoy, Sixth Ed.—p. 75. The evidence of condonation in this case is, in our opinion, strong and satisfactory as the evidence of cruelty. But that evidence does not consist in the mere fact that spouses continued to share a common home during or for some time after the spell of cruelty. Cruelty, does not consist of a single isolated act but consists in most cases of a series of acts spread over a period of time. Law does not require that at the first appearance of a cruel Act, the other spouse must leave the matrimonial home lest the continued cohabitation be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the benign purpose of marriage laws.”

There is no evidence on record to show that the spouse lived a normal married life despite the acts of cruelty. In the circumstances, I find it difficult to accept the contention that the respondent-husband condoned the acts of cruelty of the appellant-wife.

26. In the present case, the parties have not cohabited since October 1981. The appellant has not cared to meet the chilled even once after 1981. Even during the pendency of the appeal before this Court she did not make any attempt to get access to the child or seek her custody. The Additional District judge considering the welfare and interest of the child held that it would not be fit and proper to give the custody of the child to the trial Court in this regard. The child is not 10 years old. If she is not sent to the appellant-mother at this stage emotionally disturb her. The child does not know her mother at his tender age the child is forced to go the her mother, it may inflict which may be irretrievable. The conduct of the mother in not seeking custody till now also raises a doubt whether she will be able to look after the interest and welfare of the child. The reason given by the appellant-wife that because of her poor financial means she was not in a position to take back the child is far from conviction. The appellant-wife is paid maintenance by the respondent-husband and nothing precluded her from claiming maintenance for the child if she really wanted to look after the child herself.

27. In the circumstances, the appeal filed by the wife is dismissed and the cross appeal filed by the husband is allowed. The parties will bear their own costs.

Order accordingly.

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