Shantibai vs Sukhnandan

Krishnan, J.—This is an appeal by wife-Defendant in a suit by the husband in which a decree for restitution of conjugal rights has been passed in favour of the husband u/s 9(1) of the Hindu Marriage Act. The Court held that there had been repeated beatings by the husband; but was not prepared to hold it a sufficient ground to justify the rejection of the suit.

In my opinion the allegation of branding by fire is false; it appears that the Defendant has been exaggerating things. Considering the class and caste to which the parties belong, occasional beating by the husband

is not such an act of cruelty as would justify the refusal to him of the relief sought. The Plaintiff''s statement that he did beat his wife only with bare hands seems to be true; it is not such conduct as would create a reasonable apprehension of danger in the mind of the Defendant.

The allegations on either sides are simple and straight-forward, and, with the exception of one incident, common ground. The case still raises questions which are of frequent occurrence in this type of cases:

(i) How far the principle "reconciliation frist" should be applied.

(ii) Whether different standards of cruelty can be laid down by Courts to different classes;

(iii) Whether, having forgiven the ether spouse for past acts of cruelty, one can still prove them in view of subsequent acts showing impenitance and reversion to old ways.

The Plaintiff-Respondent is a mill worker living in barracks at Indore and had married the Appellant five or six years before his application for restitution of conjugal rights. From the very beginning of their married life, there were differences in the house, the husband and the mother being on one side, and the girl-wife on the other. Most often it was about the cooking, the husband complaining of the quality and the timeliness, the mother in her turn, playing the part of the traditional mother-in-law, charging the daughter-in-law with sleeping all the time while she i.e. the mother-in-law, had to do all the household work. It is common ground that in course of this quarrel, the husband beat her on several occasions. His own version is that he beat her with his hands only and not with any-implement and that was to teach her

. On one occasion, there was fire on her clothes, she was burnt, and had to be removed to the hospital and treated for a month or so. Her evidence is that in the presence of her husband, the mother-in-law applied the fire as a punishment, but the, husband''s account is that she applied the fire herself. Two neighbours have supported the wife''s version. The learned District Judge holds that they did not physically see the actual process by which the fire was applied; but, he forgets that the partitions are no more than tin-sheets, and any incident accompanied by noise could be heard unmistakably on the other side. This being obviously a serious matter, the woman went to her parents from the hospital. After some time, though it is not clear after how long, the woman was persuaded to come back after the husband promised to be kind, and there was an apparent reconciliation. But a few months after her return, the trouble started again. On this occasion again, the husband did something to the wife which led to the collection of the neighbours and their persuading him to send her back to her parents. The witnesses depose to a beating now also the husband''s own account is that on this occasion, he did not actually (sic) at her but orally tried to reason with her as she had again failed to prepare the food properly. But he accepts the rest of the story that the neighbours collected and got the woman sent to her parents. She did not come back and after some time he filed this suit for restitution of conjugal rights.

The forgoing account shows clearly that the question is one of extent and not of the actual cruelty by the husband. This was over a period, and culminated either by the burning of the wife by the mother in her son''s presence, or according to the husband, in an attempt by the wife to commit suicide by applying fire to herself to escape from the cruel treatment. Then there was a term of separation after which some sort of reconciliation was effected and the wife came back.

After a few months there was again an incident for alleged bad cooking by her, after which neighbours intervened and got the woman sent back to her parents.

Ground (i)-The proper approach in all these cases has been laid down in Section 23(2) of the Act, and is obviously in accordance with common sense and humanity; it is "reconciliation first". A court should in the first instance bear in mind that any order it passes should be one calculated to effect reconciliation, and bring man and wife together. In that sense, other things being the same, the granting of conjugal rights being, as it were, compulsory reconciliation, is a correct step, while the converse, namely ordering judicial separation, is one in the opposite direction. On the other hand, the Court should not, in face of grim facts, impose or inflict on the aggrieved party, what it supposes to be a step of reconciliation. There are cases which are beyond reconciliation; and a Court to act on the notion that a step towards reconciliation should invariably be taken, is in effect, though unintentionally, to encourage the offending spouse to practice cruelty. In this case, the learned District Judge''s judgment shows that he is quite aware that prima facie it is a case of physical cruelty; but in his anxiety to promote an enforced reconciliation; he is prepared to condone it because the parties are of a comperatively humble status in life.

Ground (ii)-This takes us to the consideration of the propriety of a Court adopting different standards on the cruelty as would justify an order for separation u/s 10(1)(b), and can also be successfully pleaded in answer to a petition for restitution of conjugal rights. Certainly every act of cruelty, either physical or mental, as popularly understood, can not be a ground for judicial separation; at that rate, married life would be an impossibility. The principle is that the multitudinous occasions for disagreement and unpleasantness, which are the day to day incidents of married life, should be treated as part of the normal wear and tear of intimate human relationship, and the parties allowed in course of time to adjust their marital relations to their personal ideosyncrasies. But there is always a limit to the normal wear and tear of human relations implying the possibility of adjustment. Once that limit is reached, it becomes cruelty for the purposes of Section 10(1)(b). It can also be readily accepted as a general maxim, that the limit varies with the individual temperament; as is well known, there are degrees of violence that a particular man or woman may resent, which are still tolerated by another man or woman and, in the extreme case, acts which might seem to be outrageously cruel to one, may even be felt as a welcome element of domestic facility by another. Therefore Courts cannot infer that a particular man or woman must be resenting a form of cruelty which it thinks is beyond the limit of tolerance. But, where a party actually pleads in Court that the cruelty, it has to suffer or is likely to suffer, is out side the limit of tolerance, and insistence on its living with its spouse might endanger its life or safety, then the question is, whether this attitude is justified by the facts. At that stage it would be very dangerous for the Court to formulate different levels of tolerance for different classes, on the basis of the social status or economic level or educational acquirement. We may go very wrong, if we bold that a less educated or a poorer or socially humbler man or woman is likely to tolerate a degree of cruelty, which a more educated or richer or socially higher placed person is likely to resent. In matters of domestic relationship which is necessarily intimate and purely human, the level of tolerance, as it were, crosscuts the educational, social or economic levels. But even supposing that generally persons of certain classes or certain economic or educational levels are more tolerant of domestic cruelty, the Courts cannot enforce such tolerance. A party which puts up with domestic cruelty does not come to Court and plead it wither aggressively as a ground for separation, or defensively as an answer to a petition for restitution of conjugal rights; we do not have to deal with them. We deal with those who do come to us with their story of cruelty; we have to see whether that cruelty is one referred to in Section 10(1)(b) and causes a reasonable apprehension of harm on injury. It would be altogether wrong to tell a party that belonging, as it does to a particular class or caste, it cannot reasonably have any such apprehension. This is exactly what the learned District Judge has done in the present case.

To be sure there are references in reported case-law, most of them old and well before the enactment of this Act, that in certain strata of society or certain economic levels, some forms of mild cruelty are taken as a matter of course. We do not know how far these statements are correct, but each of them should be taken to refer to the probability of resentment or apprehension on the part of that victim, and not to lay down different scales or standards for matrimonial cruelty. In this connection remarks of the Punjab High Court in Gurucharan Singh v. Smt. Waryam Kaur ( AIR. 1960 P&H 422 ) are of interest;

I may observe that whether or not isolated acts of violence amount to cruelty normally depends on the facts and circumstances of each case and the modern tendency of the society is at least to treat with disapproval acts of violence or assault towards women. New rules of social behaviour and conduct must, therefore, be recognised by the Courts in determining what would amount to cruelty in the present set up and I would be disinclined to dismiss lightly the so-called isolated acts of violence and assault as not amounting to cruelty, it the victims of such assaults resent and take exception to them.

On behalf of the Respondent, it is urged that these remarks are really obiter. A perusal of the judgment shows that these concluding sentences, as it were, give a gist of the principles applicable. Whether this is obiter or not, the foregoing argument shows clearly that social or educational or economic levels might be taken into account when answering the question whether or not the victim would actively resent particular acts on the part of her spouse; but they are irrelevant when the victim actually comes to the Court with allegations of cruelty and assertions that they cause apprehension of harm or injury; In that event, the allegations have to be examined on the facts.

Ground No. (iii)-In this case, it is common ground that the Respondent was in the habit of beating the girl wife whenever he thought that the food had not been well prepared or was served late. Whether or not this is an efficient method of improving the quality of her cooking or her promptness of serving the food, it is not merely a strong outburst of temper but a systematic performance. It is of no consequence whether the punishment is given by the husband directly or by the mother-in-law in the presence and with the approval of her son. What is even worse than the repeated beating which the husband shamelessly confesses to have administered but only with bare hands", is that things came to such a pass where the unfortunate girl nearly died. She and her witnesses, who are neighbours, normally not interested in the domestic squabbles of the parties, assert that the fire was set by the mother-in-law in the presence of her son. I am inclined to believe them; but what the husband says, if anything, is worse. Unable to bear the cruelty, the unfortunate woman set fire to herself. Either way, it is certainly a case of cruelty which made it very harmful and injurious to her to live with her husband.

It was fortunate that the incident did not end either in suicide or murder and the woman recovered after being treated in the hospital and went away to her parents. It is common ground that after some time, she was persuaded to return to her husband. A few months after it, there was an incident which again led to her going back to her parents. The woman says that she was beaten, but according to her husband, she again failed to cook properly and in time, and he thought fit to correct or to reason with her by word of mouth. The scene, however, attracted the attention of the neighbours who separated them and asked the woman to go back to her parents; they were sure that her continuing there would be unsafe and injurious to her.

On the face of it, the last incident was much more serious than a more scolding or use of words because such a thing would neither have attracted the neighbours nor at all would have led to the woman''s going back to her parents. That persuades one of the substantial truth of the woman''s allegation that even after persuading her to return, the husband beat her. No doubt Section 23(1)(b) of the Act provides that normally acts of cruelty should not be made a ground for ordering separation in case the victim of the cruelty has condoned them. The same test is also applicable to cruelty as an answer u/s 9(2) But every act of condonation of domestic cruelty (or as for that matter even more serious form of domestic disloyalty) is conditional in other words the parties whose doings are forgiven is, as it were, on probation, and is expected to show genuine repentance and good behaviour. If acts of the same kind are repeated, the Court should at the instance of the aggrieved party take into account not only the new acts but also the background and the factum of impenitence [vide Misc. (First) Appeal No. 133 of 1958 of Jabalpur Smt. Tulsibai v. Bhima unreported]. The acts need not be as serious as the older oneal but should be ones proving the reversion of the party at fault to its old ways reviving in the mind of the victim the old apprehensions of the harm and injury. There is no force in the argument that on the second occasion, there was at least no setting fire. The whole picture is very depressing and even after condonation, the Plaintiff-Respondent has shown no tendency to give up his old acts of violence to his own wife.

Ground No. (iv)-There is one more aspect of the matter which seems to have escaped the notice of the learned District Judge. In course of the suit, the Plaintiff wanted to amend his petition by introducing an allegation of adultery. In a suit for judicial separation or divorce, such allegations are made, and are examined. It is surprising that the husband who wants his wife to come back and live and cohabit with him, is charging her with adultery. The real point is that this throws light on the attitude of the husband. Having practised physical cruelty without showing regret, he now wanted to practice mental cruelty. Thus all things considered, we find that the case is one beyond the possibility of reconciliation, the restitution of conjugal rights is almost certain to open the way to fresh acts of cruelty by the husband seriously endangering the body and mind of the wife. Had a wife come to the Court with these allegations with a prayer for dissolution of marriage, it would certainly have been allowed; therefore it is good answer to the petition for restitution of conjugal rights.

The appeal is allowed and the judgment and decree of the lower Court are set aside. The Plaintiff-Respondent shall pay the costs and pleaders fee of the Appellant according to rules in both the Courts.