Kanhaiya Singh, J.:— These two consolidated appeals arise out of two applications under section 9 of the Hindu Marriage Act (XXV of 1955) for the restitution of conjugal rights and have been heard analogously. In Miscellaneous case 5 of 1957 giving rise to First Appeal 568 of 1958, Ram Chandra Mandal is the petitioner and his wife Urmila Devi is the opposite first party. In Miscellaneous case 6 of 1957, out of which First Appeal 567 of 1958 has arisen, Gopi Mandal is the petitioner and his wife Putul Devi is the opposite first party. Both the petitioners are full brothers and their wives are also full sisters. Gudri Mandal, the father of the two girls, is impleaded as opposite second party. I may state that Nokhey Mandal and Dasrath, all also had been impleaded as opposite second party in both the cases.
2. Both the husbands had instituted criminal cases for prosecution of Gudri Mandal, Nokhey Mandal and Dasrath Lall under section 498 of the Penal Code on the allegations that they, in collusion with one another, were detaining their wives for immoral purposes and for remarriage, but those cases ended in acquittal on 4-10-1956. About three months thereafter, the present applications were filed on 7-1-1957. The grounds for restitution of conjugal rights averred in both the cases are common. They are: that Putul Devi and Urmila Devi are legally married wives, that they resided with their respective husbands till the 3rd of Chait, 1362 fasli (corresponding to nth March, 1955) that their father Gudri Mandal, Nokhey Mandal and Dasrath Lall came to their house and took away their wives on the pretext of serious illness of their mother that they approached their father-in-law to send back their wives several times, but failed, that the aforesaid three persons were prosecuted under section 498 of the Penal Code but were acquitted and that their wives, under their inducement and allurement, have refused to live with them and resume matrimonial relations.
3. The two ladies resisted the applications, substantially on the grounds of misbehaviour, assault, cruelty and immoral character of the husbands. They also pleaded that their marriages with the petitioners were performed due to misrepresentation and fraud.
4. Dasrath Lall appeared and filed a written defence denying any connection with the ladies and pleading misjoinder. It appears that subsequently Nokhey Mandal and Dasrath Lall were expunged from the record, and the cases proceeded against the wives and their father.
5. The learned Additional District Judge negatived the plea of fraud and misrepresentation in solemnisation of the marriages. He also held that the husbands were not men of loose character and the allegations of assault and cruelty were not correct. He has expressed the view that in the long stay for some years at their husbands' place there might have been occasions for quarrel and misunderstanding and there might have been occasional thrashings by their husbands, but they did not amount to ill-treatment or inhuman treatment or cruelty towards the wives. He accordingly granted decree for restitution of conjugal rights. Now the two ladies have come up in appeal.
6. In support of these appeals Mr. R.J Bahadur raised only the question of cruelty towards the appellants. His submission is that the learned Additional District Judge took a too narrow view of ‘cruelty’ and failed to take into account the humiliation and mental torture in consequence of the institution by their husbands of the criminal cases for prosecution of their father, Nokhey Mandal and Dasrath Lall under section 498 of the Penal Code and that this one circumstance was sufficient to raise a reasonable apprehension in their minds that they could not thenceforth live with their husbands without harm to their health and danger to their lives.
7. On the other hand, Mr. K.K Sinha, appearing for the respondents urged that legal cruelty must be of a more grievous character than the accusation implied in the institution of the criminal cases and that this circumstance cannot be regarded as a sufficient ground for their refusal to live with their husbands. The case is simple, but the point raised is of some importance, and it is, therefore, with anxious care that I have approached its determination. Having considered it in all its aspects, particularly in the context of the social conditions and environments I think there is a considerable force in the argument of Mr. Bahadur.
8. Section 9 of the Hindu Marriage Act provides as follows:
“9. (1). When either the husband or the wife-has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district Court, for restitution of conjugal rights and the Court, on beings satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.”
(2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce.”
9. It will be observed that before a court decrees restitution of conjugal rights, three conditions must be fulfilled, first, either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, second, the Court in satisfied of the truth of the statements made in the petition, and, third there is no legal ground for rejection of the application. If these grounds are not satisfied, the Court will refuse to grant a decree for restitution irrespective of the defence set up by the aggrieved party. On the fulfilment of the conditions a decree for restitution may follow, if the other party has no grounds recognised by law to oppose it. The only grounds available, for successfully resisting such a application are the grounds mentioned in sub-section (2) of section 9. In other words, the grounds of defence are the grounds for judicial separation or for nullity of marriage or for divorce. On no other ground, restitutioa of conjugal rights can be disallowed by a Court. Now, cruelty is one of the grounds for judicial separation though not for nullity of marriage or for divorce. Section 10 of the Hindu Marriage Act enumerates the grounds for judicial separation. Sub-section (i) of this section enacts:
“10. (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district Court praying for a decree for judicial separation on the ground that the other party—
(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.”
10. Thus, cruelty is a good and effective defence to a suit for restitution of conjugal rights. ‘Cruelty’ has not been defined in the aforesaid Act. The legislature has advisedly refrained from giving a comprehensive definition of ‘cruelty’ for the purposes of matrimonial suits. It is difficult also to give a precise definition of ‘Cruelty’ so as to include all acts which may amount to ‘cruelty’ in cases where no physical violence is involved. Where there are specific charges of physical violence there is no difficulty in determining whether or not they constituted ‘cruelty’. The difficulty arises when there is an averment of cruelty without physical violence.
11. It will appear that ‘cruelty’, as envisaged in clause (b) above, is not necessarily the result of physical violence. Although no precise definition has been attempted at, and I think wisely, the provisions of clause (b) are self-contained and sufficient to indicate the legal conception of ‘cruelty’. In the first place the acts which are complained of as cruelty must be aimed at or directed to him or her, either directly or indirectly. It is not necessary that the complaining spouse must be the direct target of attack. A husband or a wife may not prima facie do anything directly against the other and apparently there may be good relations.; Nonetheless, the behaviour may be such as to cause; an extreme mental distress and consequent detriment to health. For instance, cohabitation with other women is not an act directed towards the wife personally; still, it may affect her conjugal relations and produce a deleterious effect upon her health.
12. Further the acts constituting cruelty cannot be considered independent of their effect on the victim. It will be noticed that ‘cruelty’ under clause (b) must cause a reasonable apprehension in the mind of the petitioner, and the apprehension thus aroused must not be a sentimental or imaginary apprehension. He or she must entertain an apprehension that it will be harmful or injurious for him or her to live with the other party. In cases where one party resorts to direct acts of assault, such as, beating, confinement physical torture, there is the evident danger in the continuance of conjugal relations. Even here no violence of any sort is caused, still the acts may amount to cruelty, if they are such as to raise a fear of harm or injury in the aggrieved party. The health and safety of the wife of the husband is the guiding consideration. It is thus abundantly clear that the physical violence is not the sole ingredient of cruelty and that the language of clause (b) is wide enough to comprehend cases of physical as well as mental cruelty.
13. It is difficult to enumerate the acts amounting to mental cruelty. What acts will constitute mental cruelty will obviously depend upon the circumstances of each case. Those acts cannot be put into a straight jacket, nor made conformable to any inflexible standard. It is really a question of, inference from the whole facts and atmosphere disclosed by the proof. In order to judge whether or not a particular act amounts to mental cruelty within the meaning of clause (b) several factors will have to be taken into account, such as environment, status in society, education, cultural development, local custom, social convention, physical and mental condition of the parties, etc.
“It is essential to judge every act in relation to its attendant circumstances the condition or susceptibilities of an innocent spouse, the intention of the offending spouse, and no less the offender's knowledge of the actual or probable effect of his conduct on the other's health”.
14. See Cooper v. Cooper, (1954) 3 All ER 415 at p. 426. Further, those acts must be committed to injure the other party. Unless there is intention to cause injury to the innocent spouse the acts will not amount to cruelty.
“There must be at least some evidence in considering cruelty either of an intention to injure the other spouse or of facts from which such an intention can be inferred”.
15. I may refer in this connection to the pregnant observations of Denning, L.J, in Kaslefsky v. Kaslefsky, ((1950) 2 All ER 398 at 402), quoted with approval by Karminaki J., in the case of Cooper 1954-3 All ER 415 aforesaid:
“……… when the conduct consists of direct action by one against the other, it can then properly be said to be aimed at the other, even though there is no desire to injure the other or to inflict misery, on him. Thus, it may consist of a display of temperament, emotion, or perversion whereby the one gives vent to his or her own feelings, not intending to injure the other, but making the other the object — the butt — at whose expense the emotion is relieved. The sick wife in Squire v. Squire, (1948) 2 All ER 51, had no desire to injure her husband but she was guilty of cruelty because she made her husband the hurt of her inordinate demands. The moody husband in Lauder v. Lauder, (1948) 1 All ER 76, directed his sulkiness at his wife, although he had no wish to hurt her. So, also the nagging wife in Usmar v. Usmar, (1949) P. 1. Cases of this kind must, however, be carefully watched. When there is no intent to injure, they are not to be regarded as cruelty unless they are plainly and distinctly proved to cause injury to health……… when the conduct does not consist of direct action against the other but only of misconduct indirectly affecting him or her, such as drunkenness, gambling or crime, then it can only properly be said to be aimed at the other when it is done, not only for the gratification of the selfish desires of the one who does it, but also in some part with an intention to injure the other or to inflict misery on him or her. Such an intention may readily be inferred from the fact that it is the natural consequence of his conduct especially when the one spouse knows, or it has already been brought to his notice, what the consequences will be, and nevertheless he does it, careless and indifferent whether it distresses the other spouse or not. The court is, however, not bound to draw the inference. The presumption that a person intends the natural consequences of his acts is one that may—not must—be drawn. If in all the circumstances it is not the correct inference, then it should not be drawn. In cases of this kind if there is no desire to injure or inflict misery on the other, the conduct only becomes cruelty when the justifiable remonstrances of the innocent party provoke resentment on the part of the other, which evinces itself in actions or words actually or physically directed at the innocent party”.
16. Applying these tests to the present cases? I find, as held by the Court below, that the appellants had been subjected to occasional beatings. They have been living as husband and wife for several years before there was an estrangement of feelings. The appellant Putul Devi, has also begotten two children. Now, they have been living with their parents. It is indeed unusual that a wife should leave the company of her husband after having lived with him for several years and also after having begotten children. It is conceivable that there must be something for them to take recourse to this painful course.
17. The petitioners alleged that their father did not permit them to go to the petitioners at the instance of Nokhey Mandal and Dasrath Lall. They have not, however, assigned reasons for assumption of such an attitude by their father-in-law. Why will a father not permit his daughters to go to their respective husbands after several years of marriage? There must be something more than what appears on the surface. What is, however, apparent and of importance is that the husband openly disgraced their wives by launching criminal prosecution against their father and two others under section 498 of the Penal Code. The allegation was that in collusion with one another they enticed away their wives for immoral purposes and for remarriage.
18. It is true that there was acquittal in those cases. But the fact remains that the allegations made therein were sufficient to humiliate the ladies; and cause them extreme mental distress. The very institution of the criminal cases on the said allegations involved imputation against them that they were not chaste or faithful to their husbands.
19. It was urged, however, that in their written statements the wives had not specifically pleaded that the allegations on which the criminal cases were brought constituted cruelty against them. In my opinion, it was not necessary to make an averment to that effect. The husbands in their petitions themselves referred to the institution of the criminal cases against their father and the two others. Referring to those criminal cases, they did not express any regret, nor did they apologise or retract the allegations made in those cases. Rather, the bald statement of the institution of the cases gives an impression that they adhered to what they had alleged in those cases. These facts are there, and there was no special significance in the wives stating the same facts over again in their written statements. They have alleged that their husbands had been cruel to them. Judged in this context, it cannot be said that the ladies did not set up the allegations in the criminal case as a defence to their action for restitution of their conjugal rights.
20. It is really a question of inference, and in my opinion, the main question is whether the institution of the criminal cases on the allegations aforesaid, when there is no repudiation or retraction of those statements, amounted to legal cruelty as envisaged in cl. (b) of Sec. 10(1). In judging this question, the entire marriage life of the parties and the inter-action of their mutual relations have to be considered against the background of he local conditions in which they live and move. In this connection, it is well to remember that the learned Additional District Judge did not overrule the occasional beatings and thrashings of the ladies by the petitioners. Having regard to the conditions obtaining in India and the importance attached to the purity of matrimonial relations, I cannot conceive of a case of greater mental distress and real apprehension of harm and injury for a wife than her husband's suspicion of faithlessness and unchastity on her part. In a case where defence is based on cruelty, the Court; interferes not to punish the husband for what he has done but to protect the wife for the future, and, therefore, the important question is whether in given circumstances the wife can with safety to life and health live with the husband.
21. In my opinion, the averments of immorality in the criminal cases were indeed calculated to hurt the wives and entail a reasonable apprehension of danger to their lives. After such acrimony and mutual distrust no wife, particularly in India, will consider herself safe in the company of her husband. There will be always a lurking apprehension that the husband may revenge in some way. To compel a wife in such circumstances to associate with her husband will amount to throwing her virtually at his mercy. Having given my anxious consideration, I am satisfied that it is not a fit case in which a decree for restitution of conjugal rights should be granted.
22. Then, there is a further consideration. As observed above, under sub-section (1) of section 9 of the Act the husband or the wife is entitled to a decree for restitution of conjugal rights only when he or she has, without reasonable excuse, withdrawn from the society of the other. If there is a legitimate excuse for refusal to live with the other, the Court will be justified in refusing to decree restitution of conjugal rights even when cruelty has not been established. It is for the petitioner to make out a prima facie case of withdrawal from society without reasonable excuse. The Court has thus been given a discretion to refuse relief where the behaviour of the petitioner would afford the opposite party a reasonable excuse for withdrawing from the society of the other. A.N Grover, J. has observed in Gurdev Kaur v. Sarwan Singh, AIR 1959 Punj 162, and I respectfully agree with him, that where the husband is guilty of conduct which falls short of legal cruelty in the sense that it is not cruelty of the kind mentioned in section 10(i)(b) of the Act, but his misbehaviour or misconduct is such that the wife is fully justified in separating herself from him, the husband cannot succeed in his petition under section 9 as it will not be possible for the Court to say that the wife has withdrawn herself from his society without reasonable excuse. In a case of this nature the petition shall fail not because of any defence set up by the wife under section 9(2), but it cannot succeed on account of the non-fulfilment of one of the essential ingredients of sub-section (1) of section 9.
23. In the case of Greene v. Greene, (1916) P. 188 it has been laid down that the Court has discretion to refuse relief to a petitioner seeking a decree for restitution of conjugal rights even in the absence of a matrimonial offence on the part of the petitioner. The question for decision always is whether the wives have reasonable excuse for leaving their husbands, and the test in all such cases is whether the conduct of the husband is such that the wives consistently with their self respect and dignity live in peace and security in the houses of their husbands and, in my considered judgment, a wife cannot honourably live with her husband without apprehension of danger to her life and health when the husband suspects her fidelity, as, in the present case. Therefore, even when the conduct of the husbands does not amount to cruel to as contemplated by section 10(1)(b) of the Act, nevertheless their behaviour in the present leases is such that the wives will be fully justified in dissociating themselves with them. In such circumstances, the petitions for restitution of conjugal rights cannot be allowed, because in my opinion, it will not be possible for the Court to say with any degree of certainty that the wives had withdrawn themselves from the society of their husbands without reasonable excuse. From this point of view also the respondents are not entitled to any relief. In the result, I would allow these appeals, set aside the decrees of the Court below and dismiss the applications. The parties will bear their own costs throughout.
Ramratna Singh, J.:— I agree.
GF/R.G.D
24. Appeals allowed.