(1.) WE have before us, a tragic story of an immature indiscretion. A boy and a girl belonging to respectable families brought together in matrimonial alliance, living a happy life for sometime after marriage separated on account of an indiscreet conduct of the girl after marriage. Parties belong to the community known as Gowdasaraswatha Brahmins. The marriage was held at Payyannur on 3 21968. Thereafter the couple moved over to Quilon where the husband was employed as Assistant Manager of the Syndicate bank. While so in April 1968 the husband came to read a letter written by his wife to one Madhavan Nambiyar at Madurai. This letter was given by the wife to one Sarada, a servant maid, for being posted. It was an inland cover. The servant-maid's curiosity got the better of her loyalty and so she seems to have opened the letter and read and enjoyed it. It is the husband's case that she gave the letter to him mentioning that getting suspicious of the contents of the letter she opened it and read it. The letter was dated 30 3 68 and was addressed to Sri Madhavan Nambiyar. This Nambiyar, it has turned out in the evidence, was one known to the wife-respondent when she was at Payyannur and he too was staying there. The letter, Ext. P1 described Nambiyar as respondent's first husband really meaning that he was her first lover. The petitioner's case is that he was shocked and stunned by the letter of the respondent who even before she was out of the thrills of the honeymoon had chosen to be so deceptive. The respondent's father at Payyannur was contacted by telegram to go over to Quilon immediately. The father did not come, but her brother, sister and two other relatives came to Quilon in a car on 16th April 1968 and the petitioner insisted that the respondent must be taken away with them. They were shown the Inland letter she had written and thereafter they took her away with them. Though the respondent seems to have written letters to the petitioner thereafter admitting the genuineness of Ext. P1 he was not in a position to forget the conduct of his wife. According to him he could not think of reconciling with the wife for the rest of his life, a wife who treated another as her husband and evinced subsisting affection towards him. The conduct of the wife is characterised as cruel and deceitful. He would say that such a girl would have no compunction or reluctance to commit any act of cruelty or deception on him thereafter. According to him he even apprehended that if she lived with him his life would be in danger. Joint residence as husband and wife, according to him, would only lead to further discord and resultant calamities. Therefore he seeks judicial separation. The wife has a different story to tell. Her husband, according to her, had never behaved normally towards her. He is said to have embarrassed her by asking her annoying, if not insinuating, questions all through the honeymoon days. He was, according to her, a doubting Tom suspicious of anything and everything that she did. Ext. P1, she would say, was quite an innocuous letter attempted to be deliberately distorted and misread. She had, according to her, no husband other than the petitioner and she had exhibited affection to
(2.) IF the letter Ext. P1 was intended to be posted to the addressee, that discloses certain facts. It mentions that the said Madhavan nambiyar was the first to touch the respondent's body which suggests that they were in intimate relations. She cherishes the brassieres given by'madhavettan' to her more than possibly all that her husband had got for her. She evinces a desire to meet him, she evinces to carry on correspondence with him and seeks that Madhavettan should not forget her. Possibly it could be said that the letter evidences the continued desire on the part of the respondent to be on the same intimate terms as she was with him earlier.
While having sexual relationship with a person other than one's own husband during matrimony may be a ground for seeking a decree for judicial separation, could it be said that a wife who is shown to have been in intimate relationship with another prior to the marriage is not entitled to the marital company of her husband? Could a husband seek a decree for judicial separation merely by showing that his wife was unfaithful to him prior to his marriage? We. think not and we must say, in fairness to counsel for the petitioner Sri. S. Easwara Iyer, that he concedes that this is so. Could it be said that if the wife continues to entertain the same feelings of affection and love towards the one with whom prior to the marriage she had illegitimate connection that would be a ground for judicial separation? At best what has been proved in this case is that the attitude of the wife is one which evidences deep feelings of affection to her lover whom she calls a husband or rather her first husband. It goes without saying that any husband would be shocked on reading a letter addressed by his wife to another in such intimate terms. But could it be said to be a sufficient ground for judicial separation? could it be said to amount to cruelty which would justify a decree for judicial separation? This, in short, is the question which we have to decide here. While cm the facts of the case the court below has found that the petitioner's plea is true, it has been further found that in law this may not give relief. It has also been found that the fact that the respondent wrote Ext. P1 letter which reflected her attitude towards her husband as well as her lover at that moment that will not serve as a ground, under the provisions of Hindu Marriage Act, for the Court to grant a decree for judicial separation. It is the correctness of this view that we are called upon to examine in this case.
Parties are governed by Hindu Marriage Act. S. 10 (1)of the Act provides that either party to a marriage, whether solemnized before or after the commencement of the Act may present a petition to the District court praying for a decree for judicial separation on one or other grounds stated in the section. It is ground (b) of the said sub-section (1) of S. 10 that is relied on in this case, which reads:; (b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party;" Though cruelty has not been defined in the Act the very sub-section indicates what would be cruelty within the meaning of the provision. Cruelty must be such as to cause apprehension in the mind of the petitioner that it will be harmful to live with the other party or cruelty may be such as to cause apprehension in the mind of the petitioner that it will be injurious for the petitioner to live with the other party and the apprehension must be reasonable. We feel that this does not reflect in exact terms what is understood as cruelty in English Law. The Divorce Reform Act, 1969 abolished the grounds for divorce laid down in the Matrimonial Causes Act, 1965 and provided that the sole ground. on which a petition for divorce might be presented to the court on or after 1st January, 1971 by either party to a marriage shall be that the marriage has broken down irretrievably. S. 2 of that act provides that the court may not hold that the marriage has broken down irretrievably unless the petitioner satisfies the court of one or mote of the following facts: (a) the respondent has committed adultery; (b) the respondent has behaved in such a way that the petitioner cannot reasonably be expected to Jive with the respondent; (c) the respondent has deserted the petitioner for a continuous period of two years and more; (d) the parties to the marriage have lived apart for a continuous period of at least two years and the respondent consents to a'decree being granted; : (e) the parties to the marriage lived apart for five years. While as the law now stands S. 2 (1) (b) of the Divorce reform Act 1969 provides for behaviour in such a way that the petitioner cannot reasonably expect to live with the other spouse as a justifiable cause, as the law stood earlier cruelty had to be established and to establish cruelty it was necessary to show injury or apprehension of injury to life, limb or health. Possibly in the light of the change in the law, in English Courts, cruelty may not require proof of injury or apprehension of injury to life, limb or health for the purpose of a successful action for divorce.
(3.) IN the English Courts cruelty had been defined as wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental or such conduct as to give reasonable apprehension of such danger. Reference may be made in this context to Russell v. Russell (1897 A. C. 395), Gollins v. Gollins (1964 A. C. 644)'and Williams v. Williams (1964 A. C. 698 ). Tolstoy, in his Treatise on Divorce analyses the tests to satisfy cruelty. This is stated thus:"since Gollins v. Gollins and Williams v. Williams there are two tests which must be satisfied for cruelty to be established: first, is the conduct complained of sufficiently grave and weighty to warrant the description of being cruel? and, secondly, has the conduct caused injury to health or reasonable apprehension of such injury? Only the first test is relevant for establishing unreasonable behaviour which falls within S. 2 (1) (b ). " As the law stands in England today, it may not be necessary to establish cruelty but it is sufficient to show the conduct of the other spouse to be such that the petitioner cannot be reasonably be expected to live with that spouse. The question whether adultery and attempt at adultery would be a sufficient ground is considered,in this context in Rayden's "law and Practice in Divorce and Family Matters", 1971, 11th Edn. at page 207: "lesser sexual matters, including unsuccessful attempts at adultery or the like and the making of false allegations in regard to sexual matters, may equally justify the petitioners allegation that he or she cannot reasonably be expected to live with the other spouse".
We are referring to the provisions of the English Law only to indicate that it may not be correct to apply the decisions of the english Courts without appreciating the difference between the law of that country and the provisions of the Hindu Marriage Act in force in India. We are particularly mentioning this because in some reported cases in India, the english Law as it is, has been considered and applied without noticing the difference that may possibly exist between the two in view of the language of s. 10 (1) (b) of our Act. The English definition of cruelty may be inapt to a case under the Hindu Marriage Act because of the departure from the language of the definition in English decisions as to what amounts to cruelty. While under the Hindu Marriage Act it is necessary to show that the treatment of the petitioner is such as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party, it is not further necessary to show that such injury would be to the health, life or limb, bodily or mental. Injury or harm may include cases other than that of injury and harm to one's body, limb or health. One can conceive of harm such as harm to reputation and social position. A person will be seriously harmed if he is socially ostracised or boycotted.;