SINGH, J. - (1.) THIS appeal is directed against the judgment and decree dated 13. 1. 2003, passed by Judge, Family Court, No. 2, Jaipur, in Divorce Case No. 17/2001 filed on behalf of the respondent-husband whereby the petitioner for divorce under Section 13 of the Hindu Marriage Act (for short `the Act') was allowed.
(2.) BRIEFLY stated, the facts necessary for disposal of this appeal are that a petition under Section 13 of the Act for dissolution of marriage was filed by the respondent-husband (for short `husband') stating therein that the marriage between the parties was solemnized as per Hindu Rites on 21. 2. 1996 and they had two issues out of their wedlock. It was averred that the appellant-wife (for short `wife') was suffering from mental disorder and even prior to her marriage she usually became unconscious and started crying. She was treated by Dr. Ramesh Sharma of her village and was also taken to Bhandari Hospital where she remained hospitalized from 1. 7. 1996 to 3. 7. 1996. Thereafter, she was also examined by Dr. Sriya at Shahpura, and then by Dr. Shiv Gautam at Jaipur on 26. 7. 1996, and the doctors had advised that she could not be left alone. It was further averred that the wife used to climb up at the top of the house and threatened to jump from there. Many a times she would even go out of her house without putting on sufficient clothes. A separate house was arranged for her stay with a hope that there would be some change in her behaviour but it was not of any consequence. On account of the aforesaid reasons, the husband had to go many a times for food out side and some times he had to visit his mother for meals. It was further averred that the wife was in habit of addressing the husband with derogative words and many a times she pushed him out side the house and even assaulted him. She also misbehaved with his aging parents. On 9. 2. 1999 the wife went to the place where the marriage party of her sister-in- law (husband's sister) was staying and there she entered in the room of the groom and caught hold of him and asked him to dance with her. When he refused, she even started abusing. On 22. 2. 199, the family members of the husband asked them to live separately so the husband started living separately but the wife was not satisfied and on 24. 2. 1999 in the night she went out of the house along with her three and half months old child and was brought back with the help of one Kharati Lal on the motor cycle. It was further averred that on 10. 7. 1999 the younger brother of the husband was to be married and the wife unmindful of her modesty roamed about without sufficient clothes. On 23. 7. 1999, she went to her village Antela and on being tried to bring her back she refused to turn up and quarrelled with all those who went there to take her back and even her family members misbehaved. In the reply, the wife controverted all the allegations. It was averred that on 23. 7. 1999, she had gone to her parental house along with her brother and she was still ready and willing to reside with her husband. It was further alleged that she gave birth to a child at her parental house but no body from her in- laws turned up to meet her or take her back. It was denied that she was suffering from any mental disorder and that she was taken to Bhandari Hospital not for any mental disease as alleged but for routine checkup for impending delivery and she was taken to Dr. Shiv Gautama's place with the intention to get her declared mental patient. She further averred that she did nothing which could amount to dishonor or disrespect to the family members of the husband. On the basis of the aforesaid pleadings, following issues were framed:- 1. Whether the appellant-wife is afflicted with such a mental disorder that the husband is not expected to live with the wife? 2. Whether the wife had treated the husband with physical and mental cruelty after solemnization of the marriage as narrated in the petition? 3. Relief? Both the parties led their evidence and after hearing both the parties, the learned trial Court decided Issue No. 1 against the husband as no mental disorder of the magnitude which could base dissolution of marriage was found to be proved. While the Issue No. 2 pertaining to cruelty was found to be proved against the wife and the petition for decree of dissolution of marriage was decreed. The wife appellant has challenged the finding of the learned trial Court on Issue No. 2 which was decided against her.
(3.) WE have heard learned counsel for the parties and gone through the record as well as the evidence led by the parties. On behalf of the appellant, it has been argued that the learned trial Court failed to appreciate the issue of cruelty in right perspective and failed to take into consideration the fact that the wife had given birth to her second child on 5. 3. 2000 while she had left her matrimonial house on 23. 7. 1999. As such, according to the learned counsel for the appellant the husband respondent deemed to have condoned the alleged acts constituting cruelty extending up to the period when she conceived and left on 23. 7. 1999 in view of his continued cohabitation, resulting in conception and giving birth to her second child on 5. 3. 2000. While adverting to the above arguments of the learned counsel for appellant, it may be noticed that the allegations of cruelty implicating the wife, relate to the period before 23. 7. 1999, the date on which she is alleged to have left for her village Antela while she gave birth to her second child on 5. 3. 2000. This shows that the husband continued cohabitation up to 23. 7. 1999 or so and this would raise a strong inference of condonation with its dual requirement, forgiveness and restoration as observed by the Apex Court in Dr. N. G. Dastane vs. Mrs. S. Dastane AIR 1975 Supreme Court 1534 as under:- " Sex plays an important role in marital life and can not be separated from other factors which lend to matrimony a sense of fruition and fulfillment. Therefore, evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty. Intercourse, of course is not a necessary ingredient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home. But intercourse in circumstances as obtain here would raise a strong inference of condonation with its dual requirement, forgiveness and restoration. That inference stands uncontradicted, the petitioner husband not having explained the circumstances in which he came to lead and live a normal sexual life with the respondent, even after a series of acts of cruelty on her part. " (Para 56) ;