Saptami Sarkar vs Jagadish Sarkar

Bijayesh Mukherji, J.—This is an appeal by the wife Saptami Sarkar whose petition dated June 15, 1964, presented in Court on the day following, for a decree for judicial separation from her husband Jagadish Sarkar, u/s 10, Sub-section (1), Clause (b) of the Hindu Marriage Act, XXV of 1955, fails before a learned Judge, City Civil ''Court, Calcutta.

In terms of Section 10, Sub-section (1), Clause (b), Saptami is entitled to a decree for judicial separation she prays the Court for, if her husband has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious for her to live with him.

Saptami and Jagadish were married under the Hindu rites on May 31, 1950. Saptami was then 16 or thereabouts. And Jagadish was some ten years senior to her. Again, if only to mark the contrast between the two, Saptami, a matriculate at or about the time of the marriage, graduated herself from the University of Calcutta, five years later in 1955; whereas Jagadish, on his own admission, is not an educated man. But because he has not been so, he wanted Saptami to be educated as is his evidence-in-chief.

There are three children of the marriage--two daughters and a son. The first-born, a daughter, would be some 16 years old by now; the second, also a daughter, almost 13; and the third, the son, a little more than 10.

Both the spouses come of respectable families. Saptami''s father, aged 63 or so, at the time of the trial in 1965, is an Advocate who was called to the bar in 1930. He is Saptami''s second wit-ness at the trial. Jagadish''s brothers are well-placed in life and that too without the shackles of conservatism. The eldest has married a Dutch lady, as Saptami says on cross-examination, or a Swiss lady, as the trial Judge records in his judgment. It does not matter which. The second has married an Anglo-Indian. Jagadish is the third. The youngest, an I.A.S. (member of the Indian Administrative Service), has married a Brahmin lady, the significance presumably being that the Sarkars are non-Brahmins.

More, as will presently be seen, the first eleven years of the married life of the two spouses before us was, as it should normally be, marred by nothing mentionable. The, little that goes before has only to be stated in order to be convinced how sad a case this is. What makes it sadder still is the very thought about the three children, grown up and growing, of whom Jagadish is an affectionate father, as testified to by none else than Saptami, herself a loving mother, who had brought the children in a taxi-cab to her and taken them back to her husband''s place, seven or eight times, before she raised this matrimonial cause on June 16, 1964. In the circumstances, a reconciliation between the spouses was devoutly to be wished for, Saptami''s father also speaks of Jagadish as a father who loves his children. Such a one tried to contact Snehalata, Jagadish''s mother and his witness too, examined on commission, with a view to bringing about a reconciliation, but she refused to talk to him as he says on cross-examination. Snehalata in turn says, with a view to bringing about a reconciliation between Jagadish and Saptami (whom she calls Samu), she sent her son-in-law and the youngest son; she rang up to Samu and her mother, only to be told by Samu that she had no time to talk. Yet she lives in the hope that my Samu will come back--Samu being a type of a girl who would not speak a falsehood'' ever. We too, on our part, broached the subject of reconciliation, just what Section 23, Sub-section (2) of the Hindu Marriage Act, 1955, enjoins us to do, but we received no response. So, this litigation, howsoever sad it may be, has to be faced on merits. And to face it so, we now proceed.

Coming to the matrimonial home after marriage in 1950, Saptami found hreself to be a member of the joint family of her husband and his brothers. Such life in a joint family continued until 1959. In 1960, the family broke up and the home was partitioned. Jagadish was allotted a portion of the dwelling house which was more or less self-contained and presumably sufficient. What, however, was not sufficient was the income of Jagadish enabling him and his family to live decently in keeping with the high standard maintained by his other brothers, which, is self-evident and which Saptami speaks of too. That led Saptami then a graduate, to take up the job of a sales-woman in February 1961 under Messrs Hindusthan Lever Ltd. on Rs. 350 a month. She worked there until June 1961. Thereafter she served two more companies, one after another and was employed, at the time she raised this matrimonial cause, under the Scandinavian Air Lines System (SAS) at 18 Park Street, Calcutta 6, on a pay of Rs. 360 a month. And herein lies the seed of this unfortunate litigation, wrecking a home.

Jagadish neither approved nor disapproved of Saptami''s decision to take up a job in February 1961 under Messrs Hindusthan Lever Ltd. as he says in chief. Disapprove he could not. His brothers were more or Less well off as Saptami says on cross-examination. The future of the three, children was to be thought of, as much by him, an affectionate father, as by Saptami, a loving mother. At the time Saptami gives evidence at the trial, the eldest daughter was reading in Class VII, the second in Class III and the son in South Point, quite an expensive school in South Calcutta. To bring up the children so--a very proper thing to do--needed money which, unfortunately, Jagadish buffeted by periodic unemployment and total failure in a business adventure had not. Still, Saptami''s employment with all it means, the wife moving about outdoors instead of remaining indoors, did not apparently go on well with him; the more so, because when he found a job, his pay was less than Saptami''s. So he started scoffing at her : A big lady now, you are in service; and you think you can do whatever you like and go wherever you desire.

Such is the occasional raillery Saptami attributes to Jagadish after she had landed herself in a job. She is not cross-examined on the point. Nor does Jagadish deny it in his evidence. So, what Saptami says stands. Even so, much too much Should not be made of it, deplorable though, in what looks like a normal and otherwise happy matrimonial home. Out of employment in 1962, as Jagadish himself admits on cross-examination and having been an utter failure in a business he had gone in for, late in 1962 and early in 1963, as Saptami says in chief, without any cross-examination on that and without any denial too by her husband Jagadish must have been in the doldrums then. So, an aberration as this--a venial one in all circumstances--we pass by. Certainly, such occasional outburst without more, we cannot elevate to the height of legal cruelty within the meaning of Section 10, Sub-section (1), Clause (b) of the Hindu Marriage Act, 1955.

Leaving aside such rubs of married life--and a matrimonial home, which is free from a rub now and again, must be rare indeed--we reach August 1963 when one night Jagadish abused Saptami, while in bed, in a loud enough voice : You are a prostitute. You are mixing with any kind of people and behaving disgracefully. Get out of my house. Saptami said, she would leave for her father''s place next morning; but Jagadish would have her leave then and there. In the morning, however, Jagadish''s behaviour with Saptami was normal. Jagadish was then out of employment.

Saptami joined SAS, that well-known international air-line, in September 1963. And Jagadish was allergic to a woman''s employment in an air-line. Because he himself had worked in such organization. Having gone through the mill so, he knew what was what. And he formed a low opinion about the boys Saptami was to work with. Such is his evidence on cross-examination towards its close.

In October 1963 Jagadish flared up again as he did in August previous. He repeated that Saptami was a prostitute, earning her income by mixing too freely with all sorts of people and leading an immoral life. Not content with that, he said, he would fleece her and kill her too.

Saptami still continued living with her husband but having completely withdrawn herself from cohabitation with him ever since August 1963. Then, in December following, a day or two ahead of the X''mas of 1963, Jagadish again abused and insulted Saptami, as he was doing since August last. Saptami could bear it no more and left the matrimonial home at 1 S.R. Das Road, Calcutta, for her father''s place at 3 Raghunath Chatterjee Street, Calcutta. Her parents, however, prevailed upon her to return to the matrimonial home with a view to looking after her children she had left behind. She did return so. But within an hour or thereabouts of Saptami''s departure from her father''s place, Jagadish arrived there and started abusing her filthily in her absence at the top of his voice. Saptami''s father, that aged Advocate, tried to reason with him. But it yielded no result. On the contrary, Jagadish moved on to the road and continued shouting : A prostitute, a whore. Passes the night outdoors. Saptami''s brother somehow sent him away.

Four or five days after this incident, as Saptami''s father says, or about a week after the incident, as Saptami says, she came back to her father''s place with her children and with the permission of her mother-in-law Snehalata. So she did as she was insulted again. And she was escorted by Jagadish''s I.A.S. brother as her father says in chief.

Thereafter, early in January 1964 Jagadish, it is said, did his worst. In the evening, he swooped down upon the office-room in Saptami''s father''s place and started shouting. He would neither take his seat nor remain calm though invited by his father-in-law to behave himself. And the very sight of Saptami made him lose his balance all the more. He shouted at her : What is the point in having the vermilion mark upon your head? I am here, to blot it out. Saptami''s father tried to intervene, only to be told that she was a slut in the habit of spending her nights out and of earning by immoral means. Jagadish then pushed Saptami against the wall causing her bruises. This was much mere than what Saptami''s father could bear, a patient down with blood pressure as he was. And he fell down senseless. In spite of all this, Saptami left with her children for her husband''s place that very night, lest her husband would create such ugly scenes again in presence of her old father. But she could not stay there long. She was then not even on speaking terms with her husband who, taking-exception to that, followed her wherever she went. Terrified, she left the matrimonial home on February 12, 1964, never to return and raised this cause for judicial separation on June 16, 1964.

Thus it will be noticed that the prayer for judicial separation is rested on the incidents, as alleged, of August, October and December 1962, as also of January 1964.

Jagadish denies that he had ill-treated his wife ever. Indeed, he has no complaint against her, a good-natured girl, who never told a lie, before this matrimonial cause. He loves his wife whom he is anxious to take back with honour due to her. He cannot say why Saptami is unwilling to come back to him. His version of what had happened in December 1963 and January 1964 consists of three parts.

First : On December 24, 1963, he failed to keep an appointment with wife to go to the pictures, with the result that he did not find her on his return home at 7 p.m. He found instead his mother crying, as Saptami had left home at 4-30 p.m. without informing anybody. He searched and searched for his wife moving here and there all the time in a taxi. At last he reached her father''s place, met his mother-in-law, an excellent lady, of whom he is proud. He met as well his father-in-law, who is like father unto him, had had snacks and tea and told him that he should get Saptami quit her job, because she was moving about Like, a girl on the street from 8 a.m. to 8 p.m. Then he returned home only to find the wife grave. Nevertheless, they slept together on the same bed.

Second : Next day, that is on December 25, 1963, Saptami was normal in the morning but not so in the evening, when she was found packing up. Worse, asked what such packing up was for, she announced that she was leaving him. Stunned he fled to Bareilly asking his daughter to tell Saptami that her mother need not leave his home which he himself was leaving. From Bareilly he returned on January 4, 1964.

Third : On January 5, 1964, he went to his father-in-law''s place where Saptami told him to his face : I do not like to stay with you any more. I would better wipe out the vermilion mark on the parting of my hair. That was too much for Jagadish who could not control himself. He, therefore, said to Saptami : Why do it yourself? I am doing it for you and going away. Apprehending that Jagadish would commit suicide, his father-in-law and others tried to stop him. That led to a rough-and-tumble in the course of which Saptami might well have received an injury. Jagadish does not remember everything as he was too much excited then. But he remembers that his father-in-law slipped and had a fall. Jagadish helped him get up. He remembers too that even after so much he had had the little courtesy of being entertained in his father-in-law''s place with tea and snacks. Then he left with his wife and children for his home where he and Saptami slept and enjoyed together that night also.

He and his wife, Jagadish says, shared the same bed even upto February 11, 1964. And never did he shadow his wife.

Such then are the two different versions, the acceptability of which the learned Judge, in the course of first instance, is called upon to choose between and decide. So called upon, he finds:

A. The two spouses cohabited for Long six months and more (August 1963 to February 1964) supplying thereby the proof of the wife''s condonation of the acts of cruelty.

B. Saptami took a wrong step in keeping herself away from the conjugal bed though she had the knowledge of Jagadish having developed a complex and jealousy too, for her association with the aviation people, no less for her long abstinence from conjugal life.

C. The incidents the wife alleges have been proved. The method resorted to by the husband, in order to get the wife off the air-line job, is crude and barbarous.

D. Yet no legal cruelty is there for more reasons than one.

First, the husband was not actuated by any malice or spite, his intention having been to get the wife quit her job, so that he could get her company more and still more.

Second, he loved and still loves his wife whom he did neither assault nor charge with adultery ever. Only he vaguely called her a prostitute.

Third, jealousy made the husband intolerant. But to say so is not to say that he is a cruel man.

Fourth, there is no satisfactory evidence, on the element of resultant danger and reasonable apprehension in the mind of the victim spouse about the harmful and injurious consequence of living with the offending spouse.

Fifth, there is no evidence either that the wife''s health has gone down, in fact, on the contrary, the wife, according to the Judge who has seen her, is unquestionably a young lady enjoying health.

The findings just tabulated have only to be read in order to be convinced how unsatisfactory they appear to be. Finding ''A'' on co-habitation for long six months contradicts and indeed cancels finding ''B'' in long abstinence from conjugal life. Similarly, finding ''C'' on the shocking allegations of the wife having been proved, cannot co-exist with finding ''D'' on absence of legal cruelty, the learned Judge''s apologia for the husband notwithstanding. (More of which hereafter : paras. 32 and 33 infra.).

Take the incident of early in January 1964. That there was a scene right in the house of Saptami''s father that day is admitted by both Saptami and Jadadish. Whereas Saptami says that unprovoked Jagadish rushed towards her to wipe off the vermilion mark upon her head, Jagadish says that he was provoked so to do by Saptami''s remark that she would far better wipe off the vermilion mark than live with him. Again, Saptami is definite that her husband dashed her against the wall causing her bruises; but Jagadish would not go more than this : intervention by his father-in-law and others led to a melee in the course of which Saptami might well have been injured. Again, that Saptami''s father fell down is admitted by both--Jagadish attributing if to a slip and Saptami attributing it to the shock and the consequential fainting on his part because of such an unseemly incident. Jagadish confesses, he was in an excited mood that day and he does not, therefore, remember everything. But he remembers he helped his father-in-law get up from his fall and he was served with snacks and tea even after such a scene, nothing like which is put to Saptami.

Even, without more, what Saptami says appears to be far more probable than what Jagadish would have the Court believe. But there is a lot more. The evidence of Saptami''s father, an Advocate aged 63, calm and balanced, tells. According to such evidence, on that fateful evening Jagadish met him in his office-room. He asked him--none else than his son-in-law to go inside. But he would not, he started shouting instead. An appeal to sit down and to talk calmly went in vain. Such shouting attracted the attention of the inmates of the house. They came to the office-room. Saptami and her children, who were then there, came too. The very sight of Saptami made Jagadish rush towards her shouting, the vermilion on the parting of your hair has to be wiped out. And I shall do it here and now Saptami''s mother and children tried to intervene. Result : a tussle. Jagadish pushed, Saptami against the wall for which she was slightly injured. All started shouting : not Jagadish alone but Saptami and her children too. Frightened, the children at the top of their voice. In the course of such jostling and all that, three chairs were broken and a secretariat table was turned upside down. This was much more than that he could bear, blood pressure patient as he-was and he fell down senseless.

Nothing like any exaggeration we see in such evidence of the old gentleman. He speaks of Saptami having been slightly injured. Not that he magnifies his father''s injuries. He speaks of Saptami and her children having shouted too--the children at the top of their voice, frightened as they were. That is so natural. Which children would not shout, faced, with the misfortune of seeing their parents engaged in such an unedifying combat? On cross-examination, all that is elicited from him on this point is : he shall never forget the shoutings of the children which still haunt him, apprehending Jagadish may do anything and with a view, therefore, to cooling him, he sent away the children whom Jagadish loves.

Evidence as this appears to be of standing, even though the giver of, such evidence is Saptami''s father. Yet he is the best and the most natural witness in the circumstances relating to an incident right in his home. The furors inside the office-room attracted no doubt some people of the neighbourhood, but they were not let in, even though they tried to break open the door bolted from inside, Saptami''s father says. And who can want such an unsavoury and indecorous domestic happening to be witnessed by outsiders, out even to break open the door? Hence, non-examination of such hoodlums, a section of Calcuttan, so volatile, is full of, makes no impression on us. What does make an excellent impression on us is the balanced evidence of Saptami''s father, undoubtedly a witness of truth. Adding to this the evidence of Saptami and even that of Jagadish read between the lines, we find as a fact--and it pains us to find so--that there was indeed a shameful and shameless incident early in January 1964, on the line of what Saptami says and that too in her father''s home.

Going backward we reach December 1963 when, a day or two ahead of the X''mas, Jagadish came to the courtyard of his father-in-law''s place and started abusing Saptami filthily, in her absence, in a stentorian voice. Invited by his father-in-law to come inside and to talk things over he heeded it not but moved on instead to a passage in the road and began shouting : A whore. A prostitute. Passing her nights outdoors. Such is the evidence of Saptami''s father, Jagadish''s version being otherwise. Because of his failure to keep an appointment on the telephone with Saptami to go to the pictures on December 24, 1963, she became exasperated and left the matrimonial home without telling anybody, as reported to by his mother, who in turn speaks of some trouble over witnessing some pictures for which Samu (Saptami) left, perhaps for her father''s place. She even produces two dateless tickets of the Elite cinema, one used and another unused. The date she does so is May 30, 1965, some one year and five months after December 24, 1963, when the appointment to see the picture is said to have been made and broken. And the mother found the, two cinema tickets on the dressing table in the room of Saptami and Jagadish. More, Jagadish knew nothing about this. Some five or six; days ahead of her deposition on commission she informed Jagadish''s Advocate (Mr. Paresh Chandra Chatterjee) about these tickets and asked by him brought them during her examination on commission. She does not remember when she came by the tickets in the room. Nor does she know whether or not these tickets have anything to do with the incident of December 1963. Saptami denies that she had made any appointment with her husband in December 1963 to go to the matinee show of a cinema or that she left the show before interval, out of exasperation, created by Jagadish''s failure to keep the appointment. She admits, she left the matrimonial home in December 1963 for her father''s place, unable to bear any longer the kind of abuse heaped upon her by Jagadish ever since August 1963.

Jagadish''s mother appears to us to be too much of a partisan witness, however much she might bestow praise upon her daughter-in-law Samu. It makes us unhappy to say so. But, upon evidence, say this we must. The way in which she produces the two cinema tickets straight from Jagadish''s room without Jagadish knowing anything about them, though they are supposed to have been lying on the dressing table in his room for one year and five months, has produced a sense of disbelief in our mind. Evidence as this bears, in our judgment, the stamp of drilling. That apart, having made out acquaintance with Saptami and Jagadish through the evidence on record, we find it impossible to say that so little (Jagadish not coming to the pictures) will lead to so much (Saptami leaving the matrimonial home). The real reason appears to be the vitriolic abuse of Saptami by Jagadish who, we are satisfied on evidence, used to revel in such inelegance from time to time. That this is so appears to be manifest even from his own evidence that on December 24, 1963, in search of his wife, he had reached in the end his father-in-law''s place where he told his father-in-law not only about the cinema affair but also about the goings of his wife : Look, she goes out at 8 a.m. and returns home, like a girl on the street at 8 p.m. Please get her off the job. So, to call Saptami a prostitute, a slut, a girl on the street, has become by then Jagadish''s second nature. Even Saptami''s aged and unfortunate father was not spared and such remark of Saptami behaving like a girl on the street, in extremely bad taste and unsupported by a soupcon of evidence, was made before him. It is all so good on the part of Jagadish to say in his evidence : I did not and even today I do not suspect my wife, but do not like her to be in the air-line. Or, Petitioner was a good natured girl and as husband I have no complaint against her. But, this is what he says from the witness-box and for obvious reasons too. Early in January 1964 or late in December 1963 he said the worst a husband can say of his wife : a prostitute, a whore and the like. Why express intense ill-will then in such brutal manner, if you do not suspect your wife, a good natured girl, against whom you have no complaint? We are satisfied, upon evidence, that such elated profession of love from the witness-box lacks sincerety. Likewise, his declaration o� profound respect for Saptami''s parents appears to be equally insincere. Hence, we hold, the incidents of December 1963, as spoken to by Saptami and her father, appear to have been proved too.

Now to the incident of October, 1963. Saptami''s clear evidence, is : Jagadish insulted her thus--you are a prostitute and you are earning your income, by mixing too freely with all sorts of people and leading an immoral life. More, in a voice full of anger he added : I would kill you and strip you of your skin. On cross-examination, she confesses, she keeps no diary. But to remember such biting remarks emanating from her life''s partner, a wife does not need a diary. Filthy and nauseating abuses as these are embedded in one''s heart which serves as more than a diary. That part, Saptami is corroborated by a friend of hers, an Advocate''s wife Mina Jana, her third witness, who worked with her in Messrs Hindusthan Lever Ltd. (loosely and inaccurately referred to as Liver Brothers) for some months in 1961. She called on Saptami sometime near about the Pujas of 1963 and in her presence Jagadish was abusing his wife as above. She asked the parties to keep quiet and hurriedly left the place, though Saptami had requested her to stay on. Nothing that is asked on cross-examination shakes her. She was there for five minutes or thereabouts. In that predicament who would stay longer. Saptami was asking Jagadish to remain silent, presumably because an outsider like her was there. But Jagadish went on in his usual way. Feeling uncomfortable and so naturally she left. No doubt, Mina is quite friendly with Saptami, as she frankly admits. That has to be so. A friend would call on a friend. She appears to us to be a very natural witness in the circumstances. Jagadish denies Mina Jana saw any such incident. The whole of the evidence, however, completely satisfies us that we must prefer the affirmative evidence of Saptami and Mina to the denial of Jagadish. It completely beats us upon evidence on what hypothesis we can bring ourselves to hold that Saptami, whom Jagadish and his mother vie with one another in certifying as a good natured girl, wedded to truth, will be leaving her matrimonial home and dear children behind, other than the hypothesis of having been subjected to periodic inhuman mental torture in the shape of the filthiest abuses a husband can hurl against his wife. We, therefore, find as a fact that the incident of October 1963 appears to have been proved as well.

The like incident of August 1963 remains. Here, the only evidence is the evidence of Saptami. But the test in a Court of law is qualitative, not quantitative: Section 134 of the Evidence Act (I of 1872). More, in a case like this, corroboration is not a matter of law, but a matter of precaution: Lawson v. Lawson (1955) 1 All E.R. 341 (342) quoted with-approval in Bipin Chander Jaisinghbhai Shah Vs. Prabhawati, . Again, all the facts and circumstances, as stated above, weaved together, do lend assurance to Saptami''s evidence on the incident of August 1963 as well. Therefore, upon the whole and in view of all that goes before, it appears to us to be very probable that in August 1963 Jagadish unleashed vitriolic abuses upon Saptami as complained of by her.

Therefore, agreeing with the learned Judge in the Court of first instance, we hold that the incidents alleged by Saptami have been proved. In holding so, we have endeavoured never to lose sight of the fact that these specific allegations in all their detail are not to be found in Saptami''s original petition for judicial separation, a point made of and very rightly too on her cross-examination. But where (as here) the substance of such allegations is in the pleading, such as--

(i) the Respondent, a man of ungoverned temper and cruel nature, repeatedly made false and malicious allegations of un-chastity and adultery against the Petitioner in the presence of her relations and outsiders (cf. the incident of October 1963):

(ii) the Respondent while in a fit of temper has repeatedly threatened the Petitioner that he would inflict severe bodily injuries upon her (cf. again the incident of October 1963):

(iii) the Respondent has repeatedly used offensive, obscene and abusive languages to the Petitioner and deliberately in the presence of her parents and relations and also in the presence of total strangers and outsiders (cf. the incidents of December 1963 and January 1964), etc.

and also where (as here), upon, evidence, to which no objection is raised at the trial, it is found as a fact that the allegations are true--indeed, the allegations of January 1964 are admitted in a manner by Jagadish--the pleading, the like of which we find here, cannot stand between the petitioning spouse and the relief she prays the Court for and she so richly deserves too unless something else stands on the way. Not that such pleading, denuded of specific allegations, merits encouragement in a matrimonial cause. It does not. But, in all circumstances here, the pleading, containing as it does the gist, on which the specific allegations stand, cannot deprive the Petitioner Saptami of the success that is her due, if there is nothing else to the contrary. In sum, it is Very desirable-that specific allegations in detail should be pleaded in a matrimonial cause; riot however the evidence by which such allegations have to be proved. Each case will depend on its facts and circumstances. No specific allegations in detail in the pleading, no relief cannot be a formula of universal application, irrespective of facts in a particular case.

Nor have we overlooked the evidence of the Respondent''s first witness, Haraprosad Bose, living since 1959 at 3 S.R. Das Road, adjacent to 1 S.R. Das Road, Saptami''s matrimonial home. It appears to be colourless evidence the burden of which is: Jagadish and Saptami made an ideal family. No difference between the two ever. As a wife Saptami is very affectionate, sober and good. She and Jagadish went to see the pictures together many a time. Evidence as this does not, as indeed it cannot, reach anyone of the incidents which we find to have been proved and two of which took place at Saptami''s father''s place far away from 1 S.R. Das Road.

Likewise, Jagadish''s mother says much too much when she asks the Court to believe that there was never any altercation between her son and Samu. That is going to the other extreme. Periodic conjugal bandying of words is normally part of conjugal relationship in the vast majority of cases; Here was much more than that. Otherwise, why did Samu, so good, save that she took a job in a non-educational line (which the mother-in-law does not like, leave her husband and children behind? She does not know. It does not stand to reason that she left for nothing. And Jagadish''s mother too, like Haraprosad, cannot simply know of her own what happened at Saptami''s father''s place.

Upon the whole of the evidence, therefore, we reiterate our conclusion; the conclusion comes to by the trial Judge as well that the incidents, as alleged by Saptami, have been proved to be true. Now, the question is : do such incidents make legal cruelty? True it is, as pointed out by the trial Judge, that the Hindu Marriage Act, 1955, does not specifically define cruelty. So what? Section 10, Sub-section (1), Clause (b) is there, containing its own lexicon and laying down the character and composition of cruelty which is sufficient for a decree for judicial separation : Kusum Lata Vs. Kampta Prasad, . And what it prescribed is: to quote, if we may, from our decision rendered on August 21, 1968, in Sm. Tushar Kana Debi Vs. Bhowani Prosad Roy Chowdhury, :

To constitute cruelty on which a decree for judicial separation can rest, one spouse must be found to have treated the other with such cruelty as to cause a reasonable apprehension in the mind of the complaining spouse that it will be harmful or injurious for such a one to live with the spouse complained against.

Such being the clear mandate of the statute governing this unfortunate litigation, it will be a profitless task to refer to decisions. Indian and English--cited at the bar; the more so, those amongst the Indian decisions before May 18, 1955, when the Hindu Marriage Act (XXV of 1955) came into force. It will be equally futile to notice the sharp cleavage of views. Russell v. Russell (1897) A.C. 395, cited on behalf of the Respondent, reveals as to what amounts or does not amount to cruelty. The test to go by is the test laid down in Section 10, Sub-section (1), Clause (b). Apply that test here. The complaining spouse is Saptami. The spouse complained against is Jagadish. Once the facts found by us and the trial Judge stands, once it is held--as indeed it has been held--that Jagadish was in the habit of hurling periodic abuses upon Saptami, of calling her a prostitute, a whore and the like, nothing to say of the incident of January 4, 1964, when he lost his head in anger and dashed his wife against the wall in the presence of her parents and children, it needs neither imagination nor evidence (the lack of which the trial Judge comments on and very wrongly, in our judgment; para. 19 : D ante : fourth reason to conclude that such conduct of a revolting character could not but have caused a very reasonable apprehension in the mind of Saptami that it would be so harmful or injurious for her to live with him. For the husband to call his wife a prostitute, a girl on the street and the like, though she is nothing of the kind, is to give her such a shock as to incapacitate her to discharge the duties of a wife. Physical violence alone does not make cruelty. Remembering the families the spouses come of, respectable and educated, the sort of cruelty we see here is worse than physical violence. It shakes the very foundation of the conjugal life. The evidence of the incidents spread over from August 1963 to January 1964--evidence the trial Judge and we accept evidence such cruelty, of an abominable type, making it so unnecessary to search for further evidence as the trial Judge does.

Other grounds (para. 19 : D ante) which lead the trial Judge not to find legal cruelty, such gross and vulgar conduct on the part of Jagadish notwithstanding, seem to us to be negation of reason. Here are our answers seriatim:

First, if calling a wife a prostitute, earning money by immorality does not show malice or spite on the part of the husband, nothing else in the world will. What counts is not the ultimate object, if any, but the method resorted to. The method adopted by Jagadish is crude and barbarous, as the learned Judge himself says.

Second, calling the wife such names in public and in private is manifestation indeed of the love, the Judge finds, Jagadish bears for Saptami. The judgment is, we are not impressed by the declaration from the witness-box by Jagadish of his love for Saptami. In such belated declaration by the husband, after having done his worst to wreck a home, his own home, the Judge does hot but we do find the height of insincerity. The incident of January 1964 does prove assault too. It is therefore not right to say, as the Judge does, that Jagadish did not assault Saptami ever. To call Saptami a whore and all that is to make her a public woman and to charge her with far more than adultery, The Judge sees, we do not, any vagueness anywhere where Jagadish calls Saptami a prostitute time and again. Assuming there is something vague, though there is none, that is, displaced by the additions Jagadish himself makes to the abuse he hurls, such as : Saptami spending her nights out, mixing too freely with all sorts of people, earning money by leading an immoral life, etc.

Third, the facts found by us and the trial Judge proclaims Jagadish to be a cruel husband. Whether jealousy made him intolerant is neither here nor there.

Fourth, dealt with in the preceding paragraph.

Fifth, whether or not Saptami''s health has gone down, in fact, appears to be an irrelevant consideration. The relevant consideration is whether or not Jagadish has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with him any further. Saptami passes the test such consideration lays down. To live with a husband who can stoop so low, as Jagadish does, is to endanger the limb, probably as also liberty and health, certainly of the wife. The incidents of 1963 and 1964 may be repeated any day and in a worse form too. Then, after having seen Saptami for two days or thereabouts in May 1965, when the trial is on, the Judge certifies her to be unquestionably a young lady enjoying health. But how her health was like before 1963 when the husband started inflicting upon her mental torture, the Judge does not and cannot know. So, why make such a finding so rash on the face of it? And its irrelevance, in the context of Section 10, Sub-section (1), Clause (b), which alone is our guide, is there. The test to go by is the reasonable apprehension in her mind if she has to live again with Jagadish. The test is not to find her in health when living with her father.

Having regard to the foregoing considerations, we find, disagreeing with the trial Jurge, that the four broad allegations of Saptami, as recorded in the foregoing lines, proved and found to be true, do make legal cruelty within the meaning of Section 10, Sub-section (1), Clause (b) of the Hindu Marriage Act (XXV of 1955).

It is now for decision if these acts of cruelty in August, October and December of 1963 and early in January 1964 have been condoned by the petitioning spouse Saptami, as found by the trial Judge and contended for by the Respondent Jagadish. The point that there is no issue on condonation has little in it. Because, by Section 23, Sub-section (1), Clause (b) of the Hindu Marriage Act, 1955, is provided inter alia:

In any proceeding under this Act, whether defended or not, if the Court is satisfied that--

* * *

where the ground of the petition is cruelty the Petitioner has not in any manner condoned the cruelty

* * *

then in such a case, but not otherwise, the Court shall decree such relief accordingly.

That then is the mandate of the law. In every matrimonial cause founded on cruelty, defended or undefended, issue or no issue, the Court has to be first satisfied that the cruelty complained of has not been condoned in any manner. Then and then only the Court can grant the relief the petitioning spouse prays it for. The learned Judge has, therefore, been plainly right in entering into the question of condonation and deciding it too.

But is his decision, finding condonation, right? Or, to put in a better way, has the Appellant succeeded in showing that his judgment, insofar as it finds condonation by Saptami, is wrong? Saptami has full knowledge of all the acts of cruelty. Indeed, she is the target of and the victim to all such acts. Has she forgiven them by blotting them out so as to restore Jagadish to the same position as he occupied before such acts, to restore between her and Jagadish the status quo ante:? If she has, sure enough, there is condonation which is a blotting out of the offence, imputed so as to restore the offending party to the same position as he or she occupied before the offence was committed : Keats v. Keats (1859) 1 Sw. & Tr. 334 : 28 L.J. (P.M. & A.) 57 and which, therefore, necessarily means the complete forgiveness of all matrimonial offences as were known to or believed by the offended spouse so as to restore between the spouses the status quo ante. : Ellis v. Ellis (1865) 4 Sw. & Tr. 154 34 L.J. (P.M. and A.) 100. Restoring the offending spouse to the same position as he or she occupied before, that is to say, to the status quo ante, connotes that something more than mere forgiveness must be there : that the spouses resume their conjugal life on a clean slate as if nothing unclean had come in between them. Consequently, to quote Sir Ashutosh Mukharji from his judgment in Moreno v. Moreno AIR 1920 Cal. 439, mere forgiveness is not condonation : to be condonation, it must completely restore the offending party and must be followed by cohabitation. Such then is the general law on condonation, into the nuances of which, making a little difference this way or that way according as a case is a case of desertion, adultery or other matrimonial offence, we need not enter. See, for example, Chandra Mohini v. Avinash Prosad (1967) 2 S.C.A. 49 : AIR 1967 S.C. 581, distinguishing Perry v. Perry (1952) 1 All E.R. 1976, a case of desertion and dealing with the contention that something more than stray acts of cohabitation must be proved in order to prove condonation. We need not enter, because the whole of the evidence completely satisfies us that forgiveness on the part of Saptami has not been there ever since August 1963; far less cahabitation, as even the trial Judge finds once, finding though just the opposite earlier.

But to such general law, making the resumption of sexual intercourse the best evidence of condonation : Windham v. Windham (1863) 32 L.J. (P.M. & A.) 89, this may be added. Leaving aside women with nymphomania and men with satriasis, as also the common run of people, there are married couples (alas not many) who have mastered their passions instead of being mastered by them and maintain complete abstinence in their conjugal life. They regard each other as a partner and co-worker in life dispensing with the sexual act altogether. They observe what has come to be known as brahmacharya in married life. Should they fall out--perhaps, people of their status would not ever--will not things other than the resumption of sexual intercourse furnish the best evidence of condonation? Perhaps, they will. The same consideration will probably apply to the spouses both of whom are frigid to a degree and therefore, completely averse to sexual intercourse.

Saptami and Jagadish, however, endowed with three children, do not appear to be spouses of either sort. Upon all we see, they are just the common run of married people. Let us, therefore, apply the general law on condonation, prescribing complete forgiveness followed by resumption of cohabitation, to the facts that merge on evidence.

Saptami and Jagadish, it appears, had two rooms all to themselves at S.R. Das Road: a mezzanine room above the garage and another room just above the mezzanine one. The former they used as a sitting-dining room. The latter they used as a bed-room, the room adjacent to which is the room of Jagadish''s mother. In the bed-room, Saptami with her children used to lie in one double bed, Jagadish lying in a bed spread over the floor : just the picture as to show a middle class family, or to go by the modern expression, a family of the low income group lives. But this is how they lived before August 1963. After August 1963, when Jagadish called Saptami a prostitute, leading a disgraceful life and all that, the spouses parted, Saptami with her children living in the bed-room and Jagadish spending the night in a divan-bed inside of the mezzanine room. Ever since then Saptami had no sexual intercourse with Jagadish. Such is her evidence.

Jagadish denies, this is so. Upto February 11, 1964, Saptami, he says, shared the same bed with him. Saptami left the matrimonial home for good on February, 12, 1964, as is the evidence of both Saptami and Jagadish., That being so, the story Jagadish tells : that he and Saptami shared the same bed on the day previous, presumably hinting thereby that they had sexual intercourse, has an incredible look about it. A wife, leading a normal conjugal life and having sexual intercourse with her husband on a certain day, does not leave the matrimonial home on the day following, never to return, but to seek judicial separation in Court, some four months later and to such a one, a loving mother, as acknowledged by all, leaving the matrimonial home means so much, leaving her dear children behind.

Jagadish''s evidence also is that, after the incidents of December 1963 and of early in January 1964, he and Saptami slept together and enjoyed together, He does not say how he slept and enjoyed after the incidents of August and October 1963, though his wife was definite about cessation of sexual intercourse ever since August 1963. To Jagadish''s evidence must be added that of his mother, living in the room next to the bed-room of her litigating son and daughter-in-law. She speaks of the two always sleeping in the bed-room by the side of hers. Not that Jagadish slept on the mezzanine floor as Saptami says. She denies the suggestion that since August 1963 the spouses lived in separate rooms.

But a suggestion as this has the merit of probability in all circumstances here. For the husband to call his wife a prostitute, thriving on immorality and things of that sort, just what Jagadish says to Saptami, is to pay the forfeit of her love, affection and all kindly feelings towards him. And what a wife Not a callow village girl who may rough it all, indignant though, because of her utter helplessness and complete dependence on the husband. But a lady, aged 29 or thereabout in August 1963, a graduate at that and an office-going woman too, on a pay of a little less than Rs. 400 a month and therefore, not dependent on her husband''s income, which again had little to be depended upon. That such a one will revolt against this sort of revolting abuse, a prudent man, in the context of today, can take it for granted. No more are those days for the type of people we are dealing with, when a wife will adore her husband though he may be a villain of the worst type. Jagadish cannot castigate such a wife in the manner he does, flinging all sense of decorum and decency to the winds and at the same time copulate with her at his pleasure. A wife like Saptami is neither an automaton nor merely an instrument of sexual enjoyment which Jagadish can make use of in any manner he thinks fit. She is a human being with a fully developed personality and a sense of self-respect too. That such a one would stop cohabiting after the most undeserved indignities were heaped upon her by none else than her husband, to whom she had borne three children and to ease whose financial position she had landed herself in a job, looks so probable. What to speak of sexual intercourse, after the most loathsome attack, physical and mental, of January 1964, Saptami was not even on speaking terms with'' Jagadish, as she says and so truly, in our judgment That sounds so natural. We regret, our inability to accept Jagadish''s evidence on the point that he had sexual intercourse with Saptami even on February 11, 1964, so unnatural in the context.

We are not unmindful of the fact that Saptami continued to stay in the matrimonial home after the incidents and abuses of August and October 1963, or that she returned to the matrimonial home after the December incident and the savage treatment she received from Jagadish in her father''s home early in January 1964. But, we are satisfied upon the whole of the evidence, she continued so and returned so, not with the intention of forgiving, forgetting and thereby obliterating her husband''s acts of cruelty but with the intention of looking after her children and sparing her father the ordeals it was his misfortune to go through in December 1963 and January 1964. That does not make condonation, as the husband speaking to the wife on the domestic chores only, instead of conducting himself in a manner in which a husband should, did not make condonation in Thompson v. Thompson ILR (1912) Cal. 395.

Upon the whole, on a balance of probabilities and that is the standard to go by, in adjudging condonation : Rayden on Divorce (8th ed., p. 222)--we prefer Saptami''s evidence to Jagadish''s and his mother''s and hold, disagreeing with the trial Judge, that Saptami has in no manner condoned the acts of cruelty on the part of her husband.

Even if we assume--though we see no reason to do so--that Saptami condoned the acts of cruelty upto December 1963, it is well to remember, such condonation has been conditioned upon the future good behaviour of Jagadish. But the subsequent misbehaviour of his in January 1964 having been what it is the old complaints of cruelty are all revived. Here is then a case where cruelty revives cruelty. More, less is necessary to revive than to found an original sentence: Durant v. Durant (1825) 1 Hag. Eccl. Rep. 733, quoted by Fletcher J. in Thompson v. Thompson ILR (1912) Cal. 395. Here we find not less, but more, much more, in what Jagadish did in January 1964. And there is no manner of condonation after that Saptami''s return to the matrimonial home and stay there until February 12, 1964, having been actuated not by the intention to condone the misdeeds, of her husband but by the intention to save her father from repetition of such disgraceful scene, as pointed out above (para. 43). So, this way too, the Appellant Saptami cannot be denied the relief she prays the Court for.

The trial Judge''s another finding, not noticed so far, remains to be examined. Saptami''s father says on cross-examination : My daughter one day disclosed to me of her intention, to file this application as she wanted to go abroad. This leads the Judge to hold that the petition for judicial separation (out of which this appeal arises) is not bona fide and that the Appellant''s object, in moving the Court so, is her desire, to inprove her service career. The contention on behalf of the Respondent Jagadish is that that is the real intention of this matrimonial cause. We are wholly unable to agree. Does Saptami''s desire to go abroad wash out the grisly acts of cruelty she charges her husband with and we, as also the trial Judge finds as facts? It does not. Hence, what does it matter that she expressed herself so before he father? Then, it appears to be manifest that Saptami was seeking some sort of an escapade, with a view to fleeing the misery to which her husband, intemperate and indecorous, had put her. It was such a natural thing for her to do. So, the very cause of her desire to go abroad appears to be her husband''s cruelty upon which this matrimonial case rests. Saptami put the matter before her old father that way instead of saying bluntly that for her husband''s mean conduct she desired to go to law with him. That is all. Hence, it is too much, relying only upon this, to say that her petition for judicial separation is mala fide. Whether going abroad will improve her service career or not evidence does not disclose. Even if it does improve her prospects in service, the acts of Jagadish''s cruelty remain, duly proved and found by us as well as by the trial Judge to be true and that is enough for her success which this sort of a stray remark by her father cannot deprive her of. We find so.

In para. 14 of Saptami''s petition for judicial separation, filed on June 16, 1964, it has been averred that the cause of action arose sometime in May 1961. This fosters the contention on behalf of the Respondent that such delay of more than three years from the accrual of the cause of action disentitles the Appellant to the relief she claims. But to read the petition so is to misread it. In May 1961, Saptami was forced to sell all her jewellery given her by her parents. Such is her allegation on which is rested the starting point of the cause of action. No more is heard of it at the trial. Obviously, therefore, it is given up. But this is not the only allegation. There are others covering a period upto February 12, 1964. See paras. 8, 9 and 10 of the petition. So, going by the petition, the cause of-action, commencing in May 1961, continued until February 12, 1964. And the present proceeding was instituted on June 16, 1964--a little more than four months later. Thus, nothing like any delay, far less any unnecessary or improper delay, is there. To institute such solemn proceeding, with its far-reaching effect on one''s own home, the petitioning party must have some time to reflect. Saptami had no more. All the facts giving rise to the cause of action, as stated in the petition, have not been proved. But the most important of them have been. That is enough.

In the result, the appeal succeeds and be allowed. The judgment and decree of the Court below be set aside. The Appellant''s petition for judicial separation be decreed.

Upon all we see, we make no order as to costs here and below, save that money, if any, paid to the Appellant by the Respondent during the carriage of this litigation shall not have to be refunded.

Liberty to apply on the custody, maintenance and education of the minor children, in terms of Section 26 of the Hindu Marriage Act, 1955.

Saul K. Datta, J.

I agree.