ORDER
1. This is the defendant's (wife's) Second Appeal in a petition for a decree of divorce filed by the plaintiff, the husband-respondent. The plaintiff respondent filed petition under S. 13 of the Hindu Marriage Act, (for short the Act), on the allegations that the marriage of plaintiff respondent with the appellant was solemnized on 24-2-1978 at Mainpuri in accordance with the relevant ceremonies of the Hindu religion. After marriage the appellant wife resided with her husband for about 15 months at Agra and thereafter without any sufficient cause she withdrew from the company of her husband on 28-7-79 and she deserted the respondent for more than two years. She has been suffering from mental disorder and he could not be expected to live with her. This fact was admitted by the wife in her letters. This all was done by her to bring the marital relation to an end. It was to such an extent that it was never resumed. Her behaviour was harsh and insulting. She misbehaved with her in-laws and has apathy to discharge marital obligations and prevented him the plaintiff to have such relations. The marriage even could not be consummated in spite of efforts by the husband. She expressed willingness to renounce the world and lead life of a nun. She used to say that she was forced to marry against her wishes. Even the husband was insulted and she refused to do the household works. She made false complaints to the administratively superior officers of the respondent. She has been in a mental hospital. All these allegations constitute cruelty and in substance, grounds mentioned in S. 13(1)(i)(a) and (iii) of the Act has been made out.
2. The appellant wife contested the petition denying the allegations and she alleged that it is wrong to state that she lived with respondent only for 15 months at Agra, rather she lived with the plaintiff respondent up to July 1981. She has never withdrew from the company of her husband, the respondent and she never suffered from mental disorder nor she has deserted the respondent. She has been a good serviceable wife and has been discharging her marital obligations and she never committed any act which could constitute 'cruelty', within the meaning of Section 13(l)(i-a), nor the grounds under S. 13(1)(iii) was made out, rather the respondent husband refused to maintain her and treat her as his wife and she has never been under the treatment of the alleged Dr. Yadav of Mental Hospital as alleged by the husband respondent. In fact he wanted to get rid of her so that he might contract another marriage. She has never written letters alleged by him and it was not the spirit or meaning of the letter as stated in the petition for divorce. She does not want to live separately nor has any such willingness. She has been discharging her marital obligations and is willing and ready to perform the same. She has never caused any mental or physical cruelty, nor she wanted to renounce the world or to lead the life of a nun. She never stated to be married against her wishes. The petition for divorce was filed on totally incorrect allegations and deserve to be dismissed.
3. The trial Court decreed the petition for divorce holding that the allegations of 'cruelty' as envisaged under S. 13(1)(i-a) of the Act was proved, but about the ground that she has been incurably of unsound mind, it was found in negative against the respondent. The appellant preferred appeal before the tower appellate Court, which was substantially dismissed holding that 'the cruelty', was proved, whereas desertion for a continuous period of two years immediately preceding the presentation of petition as envisaged by S. 13(1)(i-b) was not proved.
4. Sri S. N. Misra, learned counsel appearing for the appellant urged that in view of S. 23(2) of the Act before proceeding to grant any relief under the Act, it shall be the duty of the Court in first instance, in every case where it is possible so to do, to make every endeavour to bring about reconciliation between the parties, and the same was not done, that taking cumulative effect of circumstances including letters admittedly written by the appellant, even if read cursorily and construed correctly, would indicate that her intention was not to lead the life of a nun or a Bai nor she has dissociated herself from the wedlock, nor she has refused to discharge marital obligations, rather the husband has remarried another lady during the pendency of appeal. The circumstances indicated and considered by the Courts below would not constitute cruelty. As the husband has in mind to remarry another lady, which he did after the decision of lower appellate Court, the grounds contained either under Section 13(1)(1-a)(iii) about the appellant having been incurably of unsound mind, has not been made out and substantial questions of law are involved which have been incorrectly decided.
5. Sri Swami Dayal, learned counsel appearing on behalf of the respondent, on the other hand, urged that at least on three dates sufficient opportunity was granted to arrive at reconciliation and the parties were directed to do so, but the same did not materialize. Hence the ground under S. 23(2) of the Act was not tenable; that the circumstances indicated do constitute 'cruelty', and the appellant wanted to renounce the world and lead the life of a nun or Bai and she never wanted to discharge marital obligations, even the marriage was not consummated, and as the respondent has remarried during the pendency of appeal, the same has become infructuous; and that substantial questions of law were not involved, rather the appeal was concluded by findings of fact and the same deserves to be dismissed.
6. Having heard learned counsel for the parties substantial questions of law involved in this appeal are as to whether in view of S. 23(2) of the Act, the Court has made endeavour to bring about the conciliation between the parties and whether the circumstances indicated by the respondent or the evidence led including the letters could constitute cruelty and the appellant persistently and repeatedly treated the respondent (petitioner) with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious to live with the appellant, as contemplated by S. 13(l)(i-A) of the Act (as added by the U.P. Amendment) and what should be the standard of proof in such matters, and whether with the remarriage of the respondent after passing the decree of the lower appellate Court in first appeal, the present second appeal has rendered infructu-ous, and whether these points could be said to have involved substantial questions of law as contemplated by S. 100(4) of the Code of Civil Procedure (for short the Code).
7. As regards the first point about the lack of endeavour by the Court below to make efforts to bring about the reconciliation as contemplated by S. 23(2) of the Act and under O.32-A, Rule 3 of the Code, when the appeal was listed for hearing on 15th November, 1991, 27-11-1991 with a view to bring about the reconciliation or settlement between the parties, both learned counsel for respective party, who are very senior counsel of this Court, were directed to negotiate for conciliation or compromise between the parties by making all genuine efforts and hearing of this second appeal on those dates was adjourned, and when the appeal was again listed for final hearing on 22-1-92 learned counsel for both the parties expressed their inability and candidly stated that in spite of their best efforts reconciliation or settlement between the parties was not possible hence the appeal has to be decided on merits.
8. Taking the standard of proof required to consider 'the cruelty', as contemplated by S. 13(1)(i-A), suffice it to say that the petition for divorce is a civil proceeding and on the basis of evidence on the record in a given case and in view of S. 3 of Evidence Act indicating as to how the 'fact in issue', can be said to be proved, it has been provided that afact is said to be proved when the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
9. In Dr. N. G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534 it has been ruled by their Lordships of Supreme Court under paras 23 to 28 that burden of proof rests on the petitioner in matrimonial petition under the Act. It is because of the fact that it is for the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. This principle accords with commonsense as it is so much easier to prove a positive than a negative. The respondent (petitioner) must* therefore prove that present appellant has treated the respondent with cruelty, or to be more precise the appellant has persistently and repeatedly treated the respondent with such cruelty as to cause reasonable apprehension in the mind of the respondent that it will be harmful or injurious for him to live with the appellant. In such situation, the facts and circumstances pertaining to 'cruelty', can be said to be proved by preponderance of probabilities. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As prudent man, so the Court applies this test for finding whether a fact in issue can be said to be proved.
10. In Wright v. Wright (1948) 77 CLR 191 at page 210 it was stated by Lord Denning that the degree of probability depends on the subject-matter.
11. In Blyth v. Blyth (1966-1 All ER 524 at p. 536) it was held that when the issue is one of 'cruelty', the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases, this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged.
12. Relevant evidence on record particularly the letters written by the appellant have to be construed and scrutinised and it is to be ascertained whether taking into account the relevant piece of evidence on the basis of preponderance of probabilities it can be said that 'the cruelty', was proved.
13. Under S. 23 of the Act, however, it has been provided that in any proceeding under this Act if the Court is satisfied that any of the grounds for granting relief exists, the Court may decree the petition either for separation or for divorce etc. In my opinion the expression 'satisfied' obviously means satisfied preponderance of probabilities which is the test in civil matters, and not satisfied beyond reasonable doubt which is the test in criminal matters. Keeping this standard of proof in mind, other questions particularly the question pertaining to cruelty would be considered on merits.
14. Trial Court has held under Issue No. 3 that unsoundness of the mind of the appellant to the extent as provided under S. 13(1)(iii) was not proved.
15. About the 'cruelty', Issue No. 2 was framed. Under this issue it was held by the trial Court that some tetters of complaint were sent by the appellant which would have created mental tension to the respondent and in that connection reliance was placed on a single Judge decision of this Court in Smt. Kalpana Srivastava v. Surendra Nath Srivas-tava, AIR 1985 AH 253, where it was held that cruelty was not confined to physical cruelty, but it includes mental cruelty. Where the wife refused to prepare tea for the friends of the husband, and lodged false reports of non-bailable offences against the husband and his relations causing the husband and relations to rush to the Court to obtain bail, that would constitute cruelty, but the facts of present case are entirely different. No false F.I.R. was lodged against the respondent in non-bailable offence rather some private complaint was made and that too not by the appellant but by her father hence case of Smt. Kalpana Srivastava v. Surendra Nath Srivastava, AIR 1985 All 253 is quite distinguishable.
16. Lower appellate Court mainly took into consideration 2 letters (Paper No. 101-A and 102-A) written by the appellant and as inference was drawn that appellant on the advice of her Mausi (mother's sister) wanted to become a nun or 'Bai', and that she has committed cruelty. But she stated on oath that just as a mattar of joke, she has written about her Mausi's opinion to become a Nun or Bai. These letters are the sheet-anchor of the husband respondent's case. These letters were read and interpreted by both the learned counsel. According to Mr. Mishra those letters and other evidence on record do not make out a case of cruelty, whereas according to Mr. Swami Dayal learned counsel for the respondent, the contents do make out a case of 'cruelty' under these circumstances I have to interpret these letters.
17. At one stage I was feeling hesitant as to whether letters written by a wife to her husband strictly about her marital relations would not be her privileged document. But under S. 122 of the Evidence Act. In suits between married persons the privileged communication can be disclosed, under S. 120 in Civil Proceedings, the husband and wife are competent witnesses. Contents of these letters are reproduced as follows:--
^^gl** vkxjk Jh ln~xq: pj.k deysE;ksa ue% esjs g`n;s'oj fiz;k e/kqj le`fr;ka A ldq'ky eSa vkidh dq'kyrk dh vfHkyk"kk ije~ firk ijes'oj ls lnSo pkgrh jgrh gwW A vijap lekpkj ;g gSa fd ;gka ij ikfjokfjd lHkh tu thth] ekrkth] firkth] cM+s HkkbZ lkgc czt eksgu HkkbZ xqMMw o eqUuk HkkbZ] cOou vkfn lHkh iw.kZ :i ls dq'ky ls gSaa A vkids jokuk gksrs gh ;gkW xqMMw HkkbZ dks dkQh rst cq[kkj p<+ vk;k ijUrq vc lHkh Bhd ls gSa A eatw cfgu th ds vHkh Hkh VksUlu** Qwys gq, gSa A eSa tjk Hkh ?kqVrh gwW jksus yxrh gSa HkkHkh A eq>s NksM+ nks A vki xat Mq.Mwoksjk dc vkSj dSls igqps A i;k lwfpr djuk eSus vkids ije dk dkQh bUrtkj fd;k bl bUrtkj dh vlQyrk ij foo'k gks eq>s ;g i= Mkyuk iM+ jgk gS A vki rks pys x;s ijUrq vkius ;g Hkh u lkspk vkidk oUnuh; fe= vkils u tkus fdrus le; ds fy;s fcNM+ jgk gS A gs esjs g`n; :ih dey ij eaMjkus okys fi;k eq>s izfriy vkidh ;kn esa vkW[ks xhyh djuh iM+rh gS A fdruk Hkh jksdw exj vkWlw Hkh eq> vHkkfxu ls i`Fkd ugha jguk pkgrs gaSa A esjs fi;k eSus vkidh thou Mksj esa c/kdj vkids 'kkUr iw.kZ o vk'kkofyr thou esa dkaVks dk jkLrk rS;kj dj fn;k ;gh eSa 'kknh ls igys fopkj djrh Fkh fd gk; eSa ,d gksugkj ifr ds thou dks 'kkUr iw.kZ ugha cuk ldwaxh ijUrq eSa bl vHkkxh] pk.Mky nqfu;k ds lkeus viuh bl tcku dks dHkh u [kksy ldh A eq>s viuh ekSlh izse ckbZ dh bruh ;kn vkrh gS muds fopkj xwatrs jgrs gS A ^^ekSlh bl eqUuh dks eq>s ns nks] eS rqEgkjh yM+dh dks bVyh] vesfjdk Hkst nwaxh] lksp ysuk esjs nks yM+fd;kW Fkh] rqEgkjh yM+dh eSa viuh lsok ugha j[kawxh cfYd xq: HkDr dk dj bls lalkj ls Hkh mapk mBk nwWxh A ijUrq bl izcy HkkX; dks js[kk dks gekjs ?kV ?kV oklh izHkw Hkh ugha tku lds rks fQj ;g rqPN tho dSls tku ldrk gS A vkSj fQj & ^^deZ iz/kku fo'o jp j[kk] tks tl djfg lks rl iy pk[kka A gksbfg oksfg jke jp jk[kk oks dfj rdZ c<+kos lk[kk A** ijUrq fQj Hkh eSa vkids thou dks jliw.kZ cukus esa iwjk iz;Ru d:axh A D;ksafd& ^^yk[k /kwy Qsadks pUnk ij] pkWn u eSyk gksrk A /kjrh jksrh ugha fdUrq] xe ij nq[ks ls jksrk A** ,d gh /keZ ,d czr usek dkWp opu euifrin&ifr izfrdwy tUe tWg ikbZ] fo/kok gks; ukfj rl ckbZ A** esjk tUe bl HkkSfrdoknh ;qx esa gksrs Hkh esjk laLdkj lR; o vk/k;kfRedrk] HkfDr ls vksrizksr gS pkgs dHkh vki esajh ijh{kk ysdj ns[k ysuk A ijUrq fQj Hkh eSa thou ds vunj vius LokfHkeku LokoyEch] lPpkbZ dks ifjR;kx ugha dj ldrh A ^^j?kqdwy jhfr lnk py vkbZ] izk.k tka; ij opu u tkbZ] gs ifr nso L=h] iq:"k ls lnSo NksVh jgh gS A pkgs vki eq>ls thou i;ZUr rd---------------------------
viBuh;-------------------A** nwljk i=& vkse vxkjk 1&8&81 vknj.kh; pkpk th] lknj ueLrs A ^^v= dq'kye~ r=kLrq** vijap lekpkj ;g gS fd pkpk th vkius esjs i= dk dksbZ vkulj ugha fn;k D;k dkj.k gS A ;gkW gekjs HkkbZ lkgc dk VkaUlQj eFkqjk ftyk ds ^^dkslh** izkUr esa gks x;k gS A vkt gh HkkbZ lkgc us ogkW tksbu fd;k gS vkSj ehuk thth Hkh o muds cPps Hkh mUgh ds lkFk viuk lkeku ysdj jokuk gks x;s gSa A 'ks"k dq'ky gSa A vkxs pkpk th vkidh foeys'k vki ds bUrtkj esa fo'ks"k :i ls fpfUrr gS A vki ,d ckj vkSj bl ?kj ij vkus dh ik djsa A fQj tks vius HkkX; esa fy[kk gksxk] mls eSa Hkksxus ds fy;s rS;kj gwW A vki 'kh?kzrk'kh?kz vkxjk blh ?kj ij vkus dh ik djsa A vkSj gekjs thou dk lnSo ds fy;s vius nkekn o esjs chp dk fuiVkjk dj tkb;sxk A D;ksafd eq>ls ;s ;gh dgrs gSa fd vius pkpk dks cqyk yks A rHkh eSa rqEgsa NksM+ ldrk gqW vkSj fQj pkpk ;gka dh fLFkfr vR;Ur n;uh; py jgh gS lc eq>ls dkQh ijs'kku gSa A eS ;gka vius thou dks fcrkus esa vc vki vleFkZ gh lef>;s A mnkgj.k ds fy;s lfr vfgY;k] lhrk lHkh dk vius ifr dh i;kZnk fxjkus ds ihNs vius dks cfynku dj nsuk iM+k ogh gky bl foeys'k dk cu pqdk gS fd vc bl tUe esa vki foeys'k dks Dokajh gh lef>;s A 'kknh t:j dh Fkh exj [kqn dks eatwj ugha Fkh A u gks ldsxk ;gh ykLV LVst gS A eSa vki ls ;gh dg dj vkbZ Fkh fd vki ,d ckj vkSj pDdj yxk vkus nhft;sxk A fQj vki dgsaxs ogh bl foeys'k dks djuk iM+sxk A D;ksfd foifRr;ka gh euq"; dks f'k[kj cuk nsrh gSa A vkSj ogh mls /kwy feyk nsrh gS A pkpk ;g lksp yhft;s fd nw;ksZ/ku tc vius ik.Moks dks ,d bap Hkwfe nsus dks rS;kj ugha gqvk rks ik.Moksa dks taxyks esa Hkh fBdkuk u yxus fn;k A ,d 2 nkus ikuh dks rM+ik fn;k A vkSj viuk xqykc cuus dks dgk ysfdu ikaMo fQj Hkh ;q) ds fy, rS;kj ugha gq;s Fks A ".k us fdruk vtqZu dks le>k;k Fkk ysfdu mlus lkQ euk dj fn;k Fkk A ;q)LFky esa gfFk;kj NksM+ dj Hkkx vk;k Fkk A ysfdu tc ".k us vtqZu dks Kku fn;k viuk okLrfod :i fn[kyk;k vkSj dgk rsjk jFk eSa gkdwxk] rsjh thr esjs gkFk gS] yk[k le>kus ij vtwZZu dsoy Kku T;ksfr dks ysdj ;q) esa yM+k vkSj vUr essa fot; mlh dh gqbZ gS A nq;ksZ/ku dh gkj gqbZ A nzkSinh dh yTtk mlh us dh mlds ikap ifr;ks esa ls ,d us Hkh utj ugha mBk;k vksj dg fn;k gks tkus nks mls uaxk A mlh tTtk dh ijokg ugha dh] D;ksfd mlds ifr lR;rk ij th jgs Fks A vUr esa ".k us gh mldh ykt cpk;h A ;gh gky fcYdwy foeys'k dk lef>;s A T;knk D;k fy[kw A pkpk fQj dHkh er vkuk ysfdu bl vHkkxh foeys'k dks bl deZ cU/ku ds NqVdkjk fnykus ds ,d ckj vkSj bl ?kj ij n'kZu ns tkb;sxk A fLFkfr xEHkhj gS A esjk lHkh dks ueLrs o I;kj o ;gka ls Hkh lHkh ueLdkj A vkid n'kZu ds bUrtkj esa g- foeys'k pkpk vki vo'; 'kh?kzrk'kh?kz pys vkb;s A vkils esjh gkFk iSj tksM+dj ;gh izkFkZuk gS] leL;k xEHkhj gS A blh dks VsyhQksu o rkj dk :i lef>;s A thou ns :iksa es gS A vU/kdkj ;k izdk'k A i;k bl i= dks pkpk ds vykok dksb vU; u [kksysaxs A bUrtkj u djuk iM+s A g- foeys'k
18. These letters appear to have been interpreted by the Courts below totally contrary to the delicate ideas embodied in the letteri. The letters written by the husband or wife must be construed in that context. In order to draw an inference of 'cruelty', or desertion, there must be proved Animus Deserendi (i.e. the obviousintention of desertion). In other words it has to be proved positively that parties have no inclination to resume marital relations. The contents of these letters do not indicate that she has any idea to become a Nun or to extend non-cooperation to the husband in her marital relations. The contents of both the letters particularly that of the first letter is entirely different. It depicts that the appellant has all the love and respect for her husband. It may be noticed that this is law of nature to keep husband and wife together and to maintain their union. The law of nature is indicate in the maxim "CONJUNCTIC MARITITET PEMINAE EST DE NATURE' i.e. to keep wife and husband together is the law of nature. There is another maxim VIRET UXOR CONSENTUR IN LEGE UNA PENSONA which means husband and wife are considered one person in law. But in view of change in law it is no longer correct in true sense.
19. Before putting a construction on these two letters. It is pertinent to notice certain cardinal rules of interpretation of documents Will, Gift or Letters. There is steep decline of the norms in the society. Amongst Hindus marriage was a sacrement and not a contract. With the ever growing trend of family disputes, a Court deciding disputes between wife and husband, is called upon to discharge a very delicate duty where the grievances of either party are brought before the Court. The rules pertaining to the construction of will and other documents would equally apply to the constructions of a letter written by either wife or husband. Maxim 'NON ALITER A SIGNIFICATIONE VERBORUM RE-CEDI OPORTET QUAM-CUM-MANI-FESTUM EST ALIUD SESISSE TESTA-TOREM' means that there should be no departure from the ordinary meaning of words except in so far as it appears that the author of the document, letter or will meant something different. The correct construction of a 'Will' can be made only when the Court considers itself to be in the arm chair of the testator. Similarly the Court has to assume the circumstances under which the letter was written. It has to be construed keeping in view the background in which it was written. It has to be read from begining to end. No part of it is to be considered as otiose.
20. Both the letters were read with the help of the learned counsel for the parties. These letters do not give any indication that she has made up her mind to desert her husband or to become a nun or bai. She appears to be a totally devoted Hindu wife. The first letter opens with her respects and Namaskar to her Guru. Thereafter she addresses her husband to be Master or God of her heart.
21. A bare reading of the first letter evinces that she prays God for the well being of her husband. She has inserted several poems of separation from the husband. It appears that the husband visited the wife at her parent's house and they lived there as husband and wife and he came thereafter. She has expressed delicate idea that even though the husband (respondent) departed from her (appellant's) place without imagining that the wife shall have to live separately for considerable time and consequently under pangs of separation she weeps continously day and night for the husband. She has addressed her husband as 'Bhanwar' who keeps on howering on her lotus like heart. She has borrowed these ideas from Hindu and Sanskrit literature. In spite of her best efforts she cannot control her tears. In these letters she has remembered the days of her childhood when her Mausi (mother's sister) desired to take the appellant to herself from where she may be sent to America etc. and her Mausi would try to make her disciple of Guru but her (appellant's) line of fortune could not be known to any one. She promised to make the life of her husband very successful by extending all cooperations. She has cited some poems that even if some dust is thrown on moon, it cannot make the Moon dirty and Moon would maintain its pious character. In the present context it obviously means that.even if some difficulties are created and she continuously faces separation from her husband but she would" maintain her chastity and would remain alive for hethusband. She has got only one principle, to remain faithful to the husband. Even if she is living in materialistic world but she has got some spiritual feelings which can be tested at any moment at the same time she would maintain her self-respect, self-reliance and honesty. Be what may butshe would abide by those sacred principles. As such the inference drawn by the Court below from these letters does not appear to be justified.
22. While considering concept of cruelty it may be noticed that Hindu Marriage Act is a social benevolent legislation and the approach of Court interpreting social legislations should be the approach to a statute of predominent social nature in that light. The Judges must take a broad view of the background and policy of the statute in question. (See Summers v. Seaford Corporation (1943) AC 283 at page 293 and Brown v. Brash (1948) 1 All ER 922).
23. Beneficial and social statutes should not be construed too rigidly as it was for the protection of certain class of persons that the statute was enacted. The intention of the legislature and the policy underlying it has also to be kept in mind. As far as possible the language of the statute, unless it goes against the intention of the specific provisions must be construed consistent with the changing social attitudes. (See Amirthem Kudumbh v. Sernem Kudumban (1991) 3 SCC 20 : (AIR 1991 SC 1256).
24. It would not be inapt to state that in such matters where the Court has been assigned duty by the Legislature to bring about the reconciliation between the parties, I am of the view that the Court is expected to make sincere efforts t6 preserve the marriage tie and the same appears to be the policy behind such legislations unless the same becomes impossible. The jurisdiction in matrimonial matters is remedial and cannot be assumed to be punitive. The Court is expected to remedy a matrimonial wrong. Parliament has added a new 0. 32-A to the Code and Rule 3 of Order 32-A indicates that the duty of the Court ought to be to make efforts for settlement. To put it differently in matrimonial matters the Court becomes a Court of conscience and the satisfaction of the Court ought to be the good conscience of the Court.
25. The provisions under S. 13(i)(l-A) as added by the Hindu Marriage Laws Amendment Act is that the solitary instance of cruelty would not constitute cruelty so as to grant a decree for divorce rather the behaviour of the other party i.e. the appellant has to be persistently and repeatedly treating the respondent with such cruelty so as to cause a reasonable apprehension in the mind of the respondent that it will be harmful and injurious for the respondent to live with the appellant.
26. In this matter to arrive at a correct conclusion about the concept of cruelty 59th report of Law Commission suggesting Amendment may be taken into account. Under para 2.14 and 2.16 it was stated that having considered all aspects of the matter we have come to the conclusion that it is sufficient to provide for cruelty as a ground for divorce and it should be left to the Courts to determine on facts of each case whether the conduct amounts to cruelty or not.
27. In Moonshee Badloor Ruheem v. Shumsoonnissa Begum (1867) II Moo Ind App 551 it was observed by the Privy Council as follows:
"To prove the cruelty there must be actual violence of such a character as to endanger personal health or safety; or there must be a reasonable apprehension of it."
28. A passage from D. Tolstoy's 'The Law and Practice of Divorce and Matrimonial Causes' (Sixth Ed. p. 61) there is following statement:
"Cruelty which is a ground for dissolution of marrige may be defined as wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger."
It is thus obvious that the cruelty does not connote just a simple unpleasant conduct of other party rather it must be wilful and unjustifiable conduct as to cause danger to life. It appears that from D. Tolostoy's aforesaid book aforesaid elements of cruelty under S. 13(1X1-A) added by Hindu Marriage Law Amendment, 1976 which was enforced on 27th May, 1976 was borrowed.
29. In the present case applying aforesaid tests I am of the view that the appellant has always been denying any cruelty or misbehaviour on her part rather as a Hindu wife she has been asserting that she was always ready to co-operate with the husband to discharge her matrimonial obligations. She has not written aforesaid two letters in the spirit and with the sense in which it was tried to be read and explained by the respondent. The contents of aforesaid two letters also do not indicate that she was guilty of any misconduct amounting to cruelty. The desertion on the part of appellant as alleged by the respondent for a period of more than two years prior to the presentation of petition for divorce was not proved. Lower appellate Court while deciding point No. 1 recorded the finding as follows:
"Therefore, I come to the conclusion that although the petitioner could not establish the period of desertion of two years but he has been able to establish that Smt. Vimlesh left his house of her own."
Aforesaid conclusion does not warrant any inference that the wife or the appellant has committed any cruelty. There may be some: dissatisfaction on small matters, as the respondent as husband may not be discharging his duties and maintaining the appellant the wife to her satisfaction consequently she might have left his house of her own but it was the duty of the respondent, the husband to have proceeded to the house of the appellant to pursuade her parents and the appellant herself to return back to the fold of husband, but there is no such evidence, which was necessary to be led by the respondent, on the record.
30. In American Jurisprudence, 2nd Edn. Vol. 24, page 206, following statement may be noticed:
"The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person compliaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances."
Aforesaid statement was relied upon by their Lordships is Dastane v. Dastane, AIR 1975 SC 1534.
31. In any view of the matter even though considering entire evidence on the record particularly those considered by the Courts below, I have come to the conclusion that the 'cruelty' was not proved. Even assuming though not conceding that in technical sense the 'cruelty', may be assumed to have been proved but in that event S. 13(1)(1-A) requires something more. Just an isolated instance of cruelty would not be sufficient to grant a decree for divorce under S. 13 of the Act rather the party guilty of misconduct of cruelty (i.e. appellant, the wife) must have persistently and repeatedly treating the petitioner with such cruelty as to cause reasonable apprehension in the mind of the petitioner that it will be harmful and injurious for one party to live with the other party. The expression 'Persistently' means continue firmly or obstinately and the expression 'Repeatedly' means to say or do over again, repetition. There was no evidence led by the respondent that the appellant has commited such a misconduct as to amount to cruelty nor such a misconduct was committed repeatedly or obstinately. The misconduct of cruelty in my considered opinion as required by the Legislature under S. 13(1)(1-A) has not been proved.
32. About the mental condition of the appellant, trial Court has already held and the same view has been affirmed by the lower appellate Court that mental condition of the appellant was not of unsound mind. Except the report of one Dr. Yadav to the effect that for some time her treatment was done by him, there was nothing on the record to indicate that she was of unsound mind nor any such evidence was led. What is required in such matters is that even if unsoundness of mind is proved that must be uncurable and at more than one occasion. Even if she or he was proved of unsound mind that itself would not be sufficient to grant a decree for divorce rather it must be proved that she or he has been suffering obstinately from mental disorder and to such extent that the respondent (petitioner) cannot live with her. The unsoundness of mind has not been proved as required under S. 13(A)(1-A) of the Act.
33. Aforesaid questions have been formulated as substantial questions of law which is the principal requirement to exercise jurisdiction as second appellate Court as contemplated by S. 100(4) of the Code. In case the substantial questions of law have been correctly decided by the Courts below or the conclusion of the Courts below is in accordance with the declaration of law by their Lordships of Supreme Court which is binding under Art. 141 of the Constitution or any judgment of the High Court in that event it cannot be said that substantial questions of law are involved. In the present case however, substantial questions of law formulated above have not been correctly decided by the Courts below rather declarations of law in the judgments of Supreme Court and Privy Council defining the expression 'cruelty' and what was its effect on the party aggrieved have not been considered.
34. Before parting with the case, the submission of the learned counsel for the respondent that as the respondent has remarried after the decision of the 1st appellate Court hence second appeal before this Court has been rendered infructuous, may be stated to be rejected.
35. In Smt. Lata Kamat v. Vilas, AIR 1989 SC 1477 recently considering relevant provisions of Hindu Marriage Act particularly Ss. 11, 12, 13, 15 and 28, their Lordships of Supreme Court have held that in such situation just by remarriage by the husband, before the wife would file the appeal, would not render the appeal infructuous.
36. In view of the premises aforesaid applying Aristotelian and Baconian reasonings, the second appeal succeeds and is allowed with costs throughout. The judgments (decrees) and orders dated 3-11-1987 and 29-8-88 passed by the Courts below are set aside and the petition for divorce filed by the respondent is dismissed.
37. Appeal allowed.