Decided on September 22,1966



M. U. SHAH - (1.) The aforesaid are the material observations of the learned Assistant Judge. In substance the learned Judge finds that the three material incidents (i) of December 30 1954 which had relation to the earlier turning out of the wife and reinstatement of the wife in the matrimonial home at the intervention of a common friend (ii) of February 19 1955 when the husband had forced the wife to return the ornaments other father and obtained a receipt Ex. 46. and (iii) of April 18 1955 when the wife was cruelly dealt with eked pushed down. and turned out of the house and the house was bolted were proved satisfactorily. As regards the incident relating to the receipt of ornaments Ex. 4N the learned judge has found that it was not a normal incident that a son- in-law would return the ornaments to the father-in-law and obtain a receipt and this showed the estrangement between the parents of the two spouses. The learned judge has also found that as a result of the incident of April 18 1955 the wife had received injuries on her person which were observed by Dr. Dangi and are stated in the medical certificate. The learned Judge has also found that the subsequent conduct of the husband in walking in an Advocates office straightway instead of trying a rapprochement with the wife who was living with her parents just on the other side of the road was not a normal conduct that is expected of a husband who wants the Court to believe that the husband was not responsible for the final incident of driving away the wife The learned Judge has clearly found that the under-current of discord between the spouses had reached its climax on April 18 1955 He has also found that the husband has made no attempts at rapprochement after the final incident. The explanation of the husband has been found by the learned Judge to be false unbelievable and clearly unacceptable. He had found that the petitioner was forced to take shelter in the parental home. Thus the learned Judge has found the incident of April 18 1955 as proved. This was an incident in which according to the wife from the very morning of the day she was subjected to ill-treatment and indignities. She was asked to go away from the matrimonial home. On her insistence to stay in the matrimonial home she was kicked slapped and pushed down on the ground. She was then compelled to go out of the house carrying the infant girl. She waited outside for sometime hoping that she would be welcome back in the house. Some time thereafter the husband dressed himself and went outside and the door was opened. After the husband had left she tried to get in the house with the infant girl; but only to be told by the mother-in-law that she was not a wanted member in the family and she must walk out and go to her parents. This incident has been completely accepted by the learned Assistant Judge. The learned Judge has also accepted the medical evidence which relates to the three injuries found on the person of the wife and these injuries according to the medical opinion are clearly attributable to fist or kick blows given with force and to a push. This is an act of cruelty and a course of conduct of the husband on the fateful morning found to have been proved by the learned Assistant Judge. It is an act of violence and of bodily danger and as such an act of cruelty. However the learned Judge seems to have taken the view that this was an isolated incident although it was strictly proved by the petitioning wife as stated in para 12 of his judgment. It is in this view of the matter that he took that the learned Judge has negatived the case of the wife of legal cruelty to her by the husband. In my view this is clearly an erroneous conclusion in law and it overlooks the other material findings of fact arrived at by the learned Judge himself as aforesaid.
(2.) The learned Judge has found that there was a prior incident of December 30 1954 and that was a grave incident. This it may be remembered has relation to the wifes allegation that she was turned out of the matrimonial home some time in the last months of the year 1954 and that it was only at the intervention of one Mr. Natverlal who was a common friend of the two families that she was taken back in the house. Another material fact to be remembered is that this was the time when the marriage of a brother of the husband was to be celebrated and it is therefore very reasonable to infer that having regard to the popular opinion and the reaction that might otherwise have the husband had taken back the wife in his home; but this was only for a short duration as it subsequently turned out to be. The second incident of February 19 955 when the husband had forced the wife to return the ornaments which she had received from her father to wear on the ceremonial occasions of the marriage of the husbands brother and especially the fact that a receipt was obtained from the father and this was through the intervention of a third party goes to show that the estrangement between the parties and between the two families was deepening. This again has been found by the learned trial Judge to be a grave incident. The third and the last incident which the learned Judge himself has found to be grave and to be true is the incident of April 18 1955 These are the three incident which the learned Judge himself has found to be true and grave. The learned Judge has as aforesaid also found that the domestic life of the two spouses was unhappy during the last half of 1954 and the first half of 1955. The relations between the spouses had already deteriorated in the first quarter of 1955 and as has been found by the learned Judge it had reached a breaking point when the final incident had happened. Now the final incident has to be viewed in light of the obtaining atmosphere and the wifes capacity for endurance. It must have been known to the husband and the husbands mother that the wife had a poor physique and that she was subject to hysterical fits after the marriage. Knowing this the wife would require a sympathetic treatment at the hands of the husband and his relations. The husband acting as a husband to the wife would ordinarily cherish and support his wife as a husband should in the circumstances. Instead this is a case in which a husband with; the knowledge of the poor health and the poor physique of the wife the background of the deteriorating relations between the two families the past history the death of the first child and the obtaining atmosphere instead of consoling the wife has on the very morning of the fateful day picked up a quarrel asked the wife to walk out of the house and on her refusal to do so has beaten her kicked her slapped her and given her a push which felled her down on the ground and all this cruel treatment resulted in the injuries that were found on her person by Dr. Dangi even on the next day of the incident. And at the top of it the husband gives an Advocates notice to the wife on the very next day instead of going to the wife and consoling her or making amends for his and his mothers inhuman treatment towards her on the previous day. When this final act of April 18 1955 is considered as it should have been in this relevant context conclusion is irresistible that the husband was guilty of a conduct of cruelty as to cause a reasonable apprehension in the mind of the petitioning wife that it will be harmful or injurious for her to live with the respondent. In my opinion therefore the learned Judge was clearly in error of law in reaching a wrong conclusion that the incident of April 18 1955 was an isolated incident and therefore would not amount to cruelty within the meaning of sec. 10(1)(b) of the Act. The established evidence on record leaves no manner of doubt in my mind that the conduct of the husband was a conduct of cruelty which would cause a reasonable apprehension in the mind of the petitioning wife that it will be harmful or injurious for her to live with the husband. This is apart from the fact that the husbands insupportable acts of violence and of turning out of the wife and the infant girl from the house on the morning of April 18 1955 in themselves constitute cruelty within the meaning of sec. 10(1)(b) of the Act. This is also apart from the fact that the learned Judge himself has found that the husbands offer to the wife to return to the matrimonial home was not a bona fide offer.
(3.) Again the observation of the learned Judge that there was no general background of ill-treatment is not borne out by his own findings aforesaid and is contrary to the evidence on record. It is not necessary to repeat the findings. Having regard to the nature and manner of the incident of April 18 1955 which has been strictly proved according to the finding of the learned Judge himself the contention of Mr. Patel that it was not a treatment of cruelty cannot be said to have any merit. It is not necessary that there should be repeated acts of physical violence before the guilty spouse can be held to be guilty of cruelty. It may depend upon the nature of the act the prevailing atmosphere and other surrounding circumstances. As aforesaid the April incident was such as to cause a reasonable apprehension in the mind of the petitioning wife about her own safety. It has been found proved on evidence by the learned Assistant Judge that the final incident has caused suffering in body to the petitioning wife. There can be no doubt that this incident must have caused suffering in her mind as well. A poor wife who is driven out of the matrimonial home in the aforesaid circumstances and with an infant girl with her and is compelled to take shelter in the parental home after 13 years of married life must necessarily have fact humiliation and mental anguish. The petitioning wife therefore can be inferred to have suffered bodily pain as well as mental pain. The apprehension of danger to her life and safety if she were to return to her matrimonial home would be resultant and a natural reaction in the mind of the petitioning wife. It can therefore be legitimately inferred that the last incident in itself was an act of cruelty which when viewed in the background of the circumstances then obtaining would amount to a treatment of cruelty within the meaning of clause (b) of sub-sec. (1) of sec. 10 of the Act. Now in the instant case the physical violence to the wife at the hand of the husband and in the matrimonial home and the immediate turning her out of the house and the subsequent refusal of an entry to the wife in the matrimonial home are facts which are established on record and found proved by the learned Judge who has for the purpose sought corroboration from the medical evidence and found that the corroboration was available In these circumstances the proper legal inference from this incident itself would be that the husband was proved to have been guilty of cruelty to the wife.;

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