Soosannamma Kurien v. Varghese Abraham .

Vithayathil, J.:— The first defendant is the appellant. The suit is for restitution of conjugal rights. The first defendant is the wife of the plaintiff. The second defendant is the father, and the third defendant the mother, of the first defendant. Parties are Christians. Plaintiff belongs to the Jacobite Church while the first defendant is a, member of the Church of South India (C.S.I) Their marriage took place on 3-10-1124. After the marriage they lived as husband and wife till Makaram 1125.

2. It is alleged in the plaint that at the instigation of defendants 2 and 3 the first defendant went away from the house of the plaintiff in Makaram 1125 and lived with them. According to the plaintiff, there was no justifiable reason for the first defendant to leave his house. Attempts made by the plaintiff to bring her back to his house did not succeed. He, therefore, instituted the suit for restitution of conjugal rights. Defendants 1 and 2 contested the suit. The first defendant contended as follows: She admitted the marriage between the plaintiff and herself and the fact that she lived with the plaintiff till Makaram 1125. During the period of her stay with the plaintiff the latter subjected her to severe physical torture and mental agony. The plaintiff did not treat her as his wife. He was after other women and even gave her clothes to those women, an insult which she could not bear.

3. He also expressed his desire to her that he wanted to marry another woman. He imputed unchastity to her. In the circumstances, it was impossible for her to live with him. Further, he sent a registered letter to her on 6-11-1950 demanding judicial separation from her. He also cut off her photo from a group photo of herself and the plaintiff and sent it to her and demanded her to send his photo similarly cut off from the group photo she was having with her.

4. As she was forced to leave the plaintiff she demanded of him the return of her streedhanam amount which he refused to return. She, therefore, instituted O.S No. 123 of 1951 of the Thiruvella Munsiff's Court for the streedhanam amount due to her. She also attached before judgment immovable properties belonging to the plaintiff. It was as a counter-blast to that suit that the plaintiff instituted the present suit for restitution of conjugal rights.

5. There is no sincerety in the plaintiff's assertion that he wanted to have married life with the first defendant; and there is no bona fide in the suit. The second defendant contended that he was an unnecessary party to the suit. He denied the allegation in the plaint that it was on account of the instigation of himself and the third defendant that the first defendant left the house of the plaintiff. It was because the plaintiff deserted the first defendant that he allowed her to stay with himself and the third defendant and maintained her.

6. The plaintiff filed a replication controverting the contentions of the defendants and reiterating the allegations in the plaint. He denied the averment in the written statement of the first defendant that he wanted to marry another woman. He re-asserted his desire to continue his married life with the first defendant. He refuted the contention that he subjected her to physical torture and mental agony.

7. He also denied the averment that he imputed unchastity to her. He admitted having sent a letter to her but denied her contention that he demanded in that letter judicial separation from her. The letter was misinterpreted by her. In the letter he only gave vent to his feelings of distress and agony on account of the conduct of the first defendant. It is true that he cut her photo from the group photo and sent to her and asked her to send his photo to him.

8. But that was only an expression of his deep disappointment and was not intended as an expression of his desire to separate himself from her. He denied the averment that he gave her clothes to other women. It was also stated in the replication that the first defendant instituted O.S No. 123 of 1951 at the instigation of defendants 2 and 3 and not of her free will.

9. The court below found that there was no satisfactory evidence in the case to show that the plaintiff subjected the first defendant to physical torture during the period she was staying with him. That court also found that the plaintiff had not imputed unchastity to the first defendant. It was held that under the Indian Divorce Act which was introduced into this State by Act III of 1951 (Central) nothing could be pleaded in answer to a suit for restitution of conjugal rights which would not be a ground for a suit for judicial separation or for a decree of nullity of marriage. Section 32 of the Indian Divorce Act (IV of 1869) provides:

“When either the husband or the wife has, without reasonable excuse withdrawn from the society of the other, either wife or husband may apply by petition to the District Court or the High Court, for restitution of conjugal rights, and the court, on being 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.”

10. Section 33 further provides:

“Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which would not be a ground for a suit for judical separation or for a decree of nullity of marriage.”

11. The learned Judge proceeded on the basis that for entitling a person to a decree for judicial separation or a decree of nullity of marriage it is necessary to prove ‘physical cruelty’ and not merely ‘mental cruelty’. The learned Judge did not, therefore, go into the question whether the plaintiff's conduct towards the first defendant amounted to ‘mental’ cruelty. As for the imputation of unchastity to the first defendant the only evidence relating to it was that of the first defendant herself which the learned Judge was not prepared to accept.

12. The learned Judge did not also accept the contention of the first defendant that the letter, Ext. A, contained an imputation of unchastity to her. In accordance with the finding that the plea of physical cruelty was not made out and that there has been no imputation of unchastity to the first defendant by the plaintiff the court below held that there was no justification for the first defendant refusing to live with the plaintiff as his wife.

13. That court, therefore, gave the plaintiff a decree for restitution of conjugal rights as prayed for in the plaint. The second defendant was directed to give the plaintiff custody of the first defendant. Parties were, directed to bear their respective costs.

14. Section 22 of the Indian Divorce Act mentions the grounds on which a husband or wife may apply for a decree of judicial separation. The section reads:

“No decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery or cruelty, or desertion without reasonable excuse for two years or upwards, and such decree shall have effect of a divorce a mensa et toro under the existing law, and such other legal effect as hereinafter mentioned.”

15. Section 19 mentions the grounds on which a husband or a wife may apply for a decree of nullity of marriage. They are: (1) the respondent was impotent at the time of the marriage and at the time of the institution of the suit, (2) the parties are within the prohibited degrees of consanguinity (whether natural or legal or affinity), (3) either party was a lunatic or idiot at the time of the marriage, and (4) the former husband or wife of either party was living at the time of the marriage and the marriage with such former husband or wife was then in force.

16. The section also provides that nothing contained therein shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud. The defendant has no case that any of the grounds mentioned in the section exists in this case. The only question for decision in the suit is whether any of the grounds mentioned in S. 22 exists in this case, or in other words, whether the defendant has proved ‘adultery or cruelty or desertion without reasonable excuse for two years or upwards’ on the part of the plaintiff.

17. The first defendant has not attempted to prove that the plaintiff committed adultery although she has contended in the written statement that the plaintiff was living an immoral life. The only question, therefore, to be considered is whether the plaintiff is guilty of cruelty towards the first defendant or whether he has deserted her without reasonable excuse for two years or upwards.

18. The court below has not considered the latter question, namely, whether the plaintiff has deserted the defendant without reasonable excuse for two years or upwards. On the question of cruelty the learned District Judge seems to have Proceeded on the basis that what S. 22 contemplates is physical cruelty and not ‘mental’ cruelty.

19. The word ‘cruelty’ is not defined in the Indian Divorce Act. Section 7 of the Act provides that subject to the provisions contained in the Act the Court shall, in suits and proceedings thereunder, “act and give relief on principles and rules which,” in the opinion of the court, “are as nearly as may be conformable to the principles and rules on which the court for Divorce and Matrimonial Causes in England for the time being acts and gives relief.” The leading English case on the question as to what would amount to cruelty which will be a defence in an action for judicial separation is Russel v. Russel, 1897 AC 395 (A). That was a case decided by nine Judges of the House of Lords. Five Judges took the view that cruelty as a defence in an action for judicial separation should amount to bodily hurt, or injury to health, or a reasonable apprehension of one or other of these, while four Judges held that cruelty would include all acts which are so grave as to destroy the foundation of conjugal life. Lord Halsbury, L.C, quoted with approval the following observation of Lord Brougham in Paterson v. Paterson, (1850) 3 HLC 308 (B):

“Not merely violence, but things far short of violence would justify the court in pronouncing a separation”

20. In Paterson v. Paterson (B) the following facts were found against the husband, i.e, withdrawing from the wife's estate, coldness towards her, leaving her apartment, telling her father that he would on no account ever renew his co-habitation with her and stating that he was wretched in consequence of his marriage. On the basis of that finding Lord Brougham held that the husband was guilty of cruelty towards his wife and that the wife was entitled to a decree for judicial separation. Following this decision, Lord Halsbury observed:

“If the narrow proposition that the cause of separation must be such as to cause injury to life or limb or health it is manifest that in many of the cases reported it would be ridiculous to suggest peril of life or limb and the speculation as to health must become elastic, according to the health and strength or feebleness of the particular person towards whom the Cruelty is exercised.”

21. Lord Hobhouse who agreed with the opinion of Lord Halsbury discussed the earlier decisions on the point. In Evans v. Evans, (1790) 1 Hag. Cons. 35 (C), Lord Stowell laid down a wider principle than that of physical danger, namely “an absolute impossibility that the duties of married life can be discharged.” In Popkin v. Popkin, (1794) 1 Hag. Ecc. 765n. (D), Lord Stowell held that a husband's

“attempt to debauch his own women servants was a strong act of cruelty, perhaps not alone sufficient to divorce, but which might weigh in conjunction with others as an act of considerable indignity and outrage to his wife's feelings”.

22. In D'Aguilar v. D'Aguilar, (1794) 1 Hag. Ecc. 773 (E), which was a case in which the wife alleged that her husband spat upon her, Lord Stowell said: “Nothing can be more gross cruelty”.

23. The same view was expressed by Dr. Lushington in Saunders v. Saunders, (1947) 1 Rob. Ecc. 549 (F). In Durant v. Durant, (1825) 1 Hag. Ecc. 733 (G), Sir J. Nicholl held that accusing the wife of intrigue with the children's tutor amounted to legal cruelty on the part of the husband. The same view was taken by the learned Judge in another case, i.e, Bray v. Bray, (1828) 1 Hag. Ecc. 163 (H), Gale v. Gale, (1852) 2 Rob. Ecc. 421 (I), was also a similar case. On the authority of these decisions, Lord Hobhouse held that there was no rigid rule to exclude from the consideration of the Judge or jury a case where acts, cruel in their nature, were so grave as to destroy the foundations of conjugal life.

24. Lord Herschell was, however, of opinion that the authorities referred to by lord Hobhouse did not lay down that anything other than bodily hurt or injury to health or a reasonable apprehension of one or other of these would amount to cruelty the opinion of lord Herschell was accepted by four other judges. But, the law in england as regards restitution of conjugal rights was amended by Statute 47 and 48 Viet., C. 68. As observed by Mookerjee. J., In Dular Koer v. Dwaraka Nath Misser, ILR 34 Cal 971 (J):

“It is now well settled in England that by this statute the old law as to restitution of conjugal rights has been materially altered and that under it the court has power to refuse a decree which it had not before.”

25. In Oldroyd v. Oldroyd, 1896 P 175 (K), ‘the law was thus laid down:

“In cases where the conduct of the petitioner has led to desertion by the respondent and has amounted to sufficient cause to disentitle the petitioner to maintain a suit for judicial separation on the ground of desertion, the court has power to refuse to pronounce a decree compelling the respondent to return to co-habitation with the petitioner.”

“The tendency of recent legislation and judicial decisions in England has been to recognise a wider limit of the grounds upon which a decree for restitution of conjugal rights may be refused”.

(Mookerjee, J., in ILR 34 Cal 971 (J)).

26. In Mackenzee v. Mackenzee, 1895 AC 384 (L), Lord Herschell, L.C, said:

“I am not prepared without further consideration, to assent to the proposition that a spouse, who seeks a decree for adherence is in all cases entitled to obtain it unless a case can be established by the defender which will justify a decree of separation. It seems to me open to question whether the courts ought in all cases to disregard the conduct of the party who invokes their aid in an “action for adherence and to decree it in all cases where a matrimonial offence cannot be established by the defender.

It is certain that the spouse may, without having committed an offence which would justify a decree of separation, have so acted as to deserve the reprobation of all right-minded members of the community. Take the case of a husband who has heaped insults upon his wife but has just stopped short of that which the law regards as saevitia or cruelty; can he, when his own misconduct has led his wife to separate herself from him, go into court, and avowing his misdeeds insist that it is bound to give him a decree of adherence?

It is not a notion strange to our law that the court should refuse its aid to one who does not come into it with clean hands, and when the question arises for decision, I think it may well be considered whether the court would be bound to entertain an action, and grant relief at the suit of one whose misconduct, though falling short of matrimonial offence, has been the primary cause of the difficulty and has led to the refusal to adhere”.

27. In Russel v. Russel (A) itself Lord Herschell observed as follows:

“I think the law of restitution of conjugal rights as administered in the courts did sometimes lead to results which I can only call barbarous. I need seek no better illustration of this than the case of Holmes v. Holmes, (1755) 2 Lee. 116 (M), which is relied on for the proposition that the courts can only refuse restitution on grounds which would justify a divorce. Conduct of a most revolting character on the part of the husband “was held to afford no answer to his claim for restitution of conjugal rights.

Indeed, if the broadest definition of cruelty which has been contended for in this case were accepted, it would still be, to my mind, unsatisfactory that a husband who though stopping short of cruelty, in that sense, had by insult and outrage driven his wife to leave him, should, without repentence for the past or any assurance of amendment for the future, be able to invoke the assistance of the court and call for the strong arm of the law to force his wife under pain of imprisonment to resume co-habitation.

One would think that the court might well refuse to afford its assistance to one who acted thus: and notwithstanding the decision to which I have referred, there are not wanting dicta of eminent Judges, and notably of Lord Stowell, that” “something short of legal cruelty” might bar a suit for restitution.’’

28. In Buzloor Ruheem v. Shumsoonnissa Begum, 11 Moo Ind App 551 (PC)(N), Their Lordships of the Privy Council laid down the law in the following terms:

“It seems to them clear that if cruelty in a degree rendering it unsafe for the wife to return to her husband's dominion were established, the court might refuse to send her back. It may be, too, that gross failure by the husband of the performance of the obligations which the marriage contract imposes on him for the benefit of the wife, might, if properly proved, afford good ground for refusing to him the assistance of the court”.

29. That was a case relating to Mohammadans. In Yamuna Bai v. Narayan Moreshwar, ILR 1 Bom 164 (O), in which the parties were Hindus, Melville, J. observed that the Hindu Law on the question of what is legal cruelty did not differ materially from the English law. The same view was taken by Mahmood, J., in Binda v. Kaunsilla, ILR 13 All 126 (P). A different view was, however, taken by Garth, C.J, in Jogendro Nundinee v. Hurry Doss, ILR 5 Cal 500 (Q). The learned Chief Justice observed in that case that the same state of circumstances which would be an answer to a suit for restitution of conjugal rights in the case of a European might not be equally so in the case of a Hindu.

30. In ILR 34 Cal 971 (J), already referred to, Harington, J., said:

“I do not think it necessary to discuss the question as to what degree of conjugal infidelity would, in a case like the present, justify the court in refusing the petitioner a decree or whether the conduct of the husband in expelling his wife from his house and replacing her by a second wife and a concubine amounted to cruelty. I prefer to base my judgment on a principle which is equally applicable to Europeans and Indians alike, namely, that the court is not bound to order a wife to return to her husband when there is reasonable ground for apprehending that her return to that husband will imperil her safety.”

31. Mookerjea, J., discussed at length the case law relating to the question and came to the following conclusion:

“It is undeniable that the plaintiff, after he had transferred his favours to his concubine, habitually ill-treated the appellant, that he grossly insulted the religious feelings of his “wife by making his concubine live in the house as a member of his family, and subsequently drove the appellant out of the family residence at the instance of the prostitute. I have no hesitation in holding that the conduct of the husband constituted in the language of Lord Stowell “a gross, weighty and serious matrimonial offence”, and that it amounted to cruelty within the meaning of the law, which fully justified the wife in living separate from her husband.”

32. As to what would constitute cruelty as a defence in an action for restitution of conjugal rights was discussed by Phillips and Devadoss, JJ., in Kondal Rayal Reddiar v. Ranganayaki Ammal, ILR 46 Mad 791 : (AIR 1924 Mad 49 (R)). Devadoss, J., after discussing the English Law relating to the question, said:

“I consider that the facts establish sufficient cruelty on the part of the husband which would justify the court in refusing the plaintiff the relief he seeks. The case might perhaps be different if the court is asked to dissolve the marriage; but in a case of restitution of conjugal rights, the courts need not consider what would be sufficient to grant a divorce according to the Matrimonial Law of England.

On the other hand, before passing a decree in favour of the husband the court should be satisfied that by giving its aid to him it does not thereby endanger the life, limb, liberty or the health of the wife. If there is danger to any of these, the Court would be amply justified in refusing to give a decree for restitution of conjugal rights.”

33. In Rukmani Ammal v. T.R.S Chari, AIR 1935 Mad 616 (S), Pandrang Rao J., observed:

“There is no stringent rule that in every case, “unless actual cruelty is established, a husband is entitled to a decree for restitution of conjugal rights. Whether he is so entitled or not must be decided after a consideration of all the circumstances of the case; in other words, what is sought in a suit is an equitable relief, and equitable considerations cannot be ignored even when they are in favour of a Hindu wife.”

34. Learned counsel for the respondent referred to a later decision of the Madras High. Court i.e, Dwarka Bai v. Nainan Mathews, AIR 1953 Mad 792 (T), in support of the position that physical cruelty alone will be a defence in an action for restitution of conjugal rights. But that was an action for dissolution of marriage and not one for restitution of conjugal rights. Panchapakesa Aiyer J., held in that case:

“Cruelty under Section 10 of the Indian Divorce Act, must be such cruelty as, without adultery would entitle her (wife) to a divorce a, mensa et toro. Our Divorce Law is based on the English Law which has always held that mere mental cruelty, without causing bodily injury, is not sufficient though mental cruelty affecting bodily health will be sufficient.”

35. This decision also does not apply to the present case which is not one for dissolution of the marriage.

36. In Mt. Chilha v. Chedi, AIR 1929 Oudh 121 (U), the Oudh Chief Court held that under the Indian Law cruelty in the legal sense need not necessarily be physical violence and that a course of conduct which if persisted in would undermine the health of the wife would be a sufficient justification for refusing the husband a decree for restitution of conjugal rights. J. Julius v. A. Julius, AIR 1932 Oudh 231 (V), which was relied on by learned counsel for the respondent is a case in which the wife applied for judicial separation from her husband.

37. Kisch J., held that to constitute a cruelty there must be danger to life, limb or health, bodily or mental, or a reasonable apprehension of it and that mere disagreement between husband and wife would not be sufficient ground for judicial separation. This decision does not support the contention of the respondent that physical violence alone will constitute cruelty, Kalian v. Kalian, AIR 1933 Lah 728 (W), another case referred to by learned counsel for the respondent was one relating to dissolution of marriage and not restitution of conjugal rights. In that case also it was held that to constitute legal cruelty there must be danger to life, limb or health, bodily or mental, or a reasonable apprehension of it.

38. In Pichu Ammal v. Canapathi Ayyan, 15 Trav LR 189 (X), the Travancore High Court took the view that to constitute legal cruelty there must be actual violence of such a character as to endanger personal health, or safety or reasonable apprehension of the same, and that mere pain to the mental feelings however wantonly caused would not come within the definition of cruelty. But this view was not followed in later decisions of the Travancore High Court. In Dakshinamoorthi Ayer v. Seetha Ammal, 26 Trav LJ 1285 (Y), it was held that any conduct of the husband which causes disgrace to the wife or subjects her to a course of annoyance and indignity would amount to legal cruelty. Sankarasubba Iyer J., observed:

“Though legal cruelty was construed by British Indian Courts in the manner indicated in 15 Trav LR 189 (X), there has come about a gradual change now in this view.”

39. The learned Judge referred to the earlier and later decisions of the Indian High Courts relating to the question to show the change in Judicial opinion regarding the conception of legal cruelty as a defence in an action for restitution of conjugal rights. In Kochukunju Alia v. Mathen Kochulcunju, 1945 Trav LR 372 (Z), which was a case relating to Christians and in which the husband sued, for restitution of conjugal rights, Abraham J., observed as follows:

“Legal cruelty is still the proper defence, but the progressive tendency of law and the requirements of modern civilized life have left mere physical violence or threatened injury or danger to life and limb in the back-ground, has broadened the basis of legal cruelty and has Recognised other defences.”

40. In a still later case viz., Phillippose Devadasan v. Elsi Daniel, 1947 Trav LR 781 (Z-1), which also was a case in which a Christian husband sued, for restitution of conjugal rights, Simon J., said:

The cruelty alleged and proved in this case is such as to undermine the foundation of conjugal life. The husband is not only suspicious of his wife but believes that she is a whore, and would still insist on his right to continue the marital union with her. It would be impossible to the wife under such circumstances to discharge the duties of married life. It is not physical violence or threat of violence that is feared in this case.

41. The wife fears that there will be the exercise of tyranny by the husband, subjecting her to constant insults and abuses and accusing her of adulterous conduct. This would make a state of married life impossible to be endured and cause a very unhappy and miserable state of existence. This is cruelty of a worse kind than that of physical violence.”

42. The Cochin High Court also has taken the same view in Gouri Bhai v. Raya Pai, 14 Cochin 404 (Z-2). It was held in that case that the tendency of modern legislation and judicial decisions in India and England was to recognise a wider limit of the grounds upon which a decree for restitution of conjugal rights might be refused and that it would not be proper for the Courts to be entirely guided by the earlier decisions of the British Indian High Courts or the abstract rules laid down by the ancient Hindu Law text. After referring to the case law on the point Narayana Iyer C.J, observed:

“Such being the tendency of the British Courts in recent times, which in my opinion, is in the right direction of widening the scope of justification, in view of the growing change for the better in the condition of women, it is not proper for us in, this State to be guided by the rigid test of the English Law of cruelty which might have been considered as a sound rule quarter of a century ago.”

43. In the light of the decisions referred to above we are unable to agree with the view taken by the Court below that under the Indian. Divorce Act only physical cruelty will be a defence in an action for restitution of conjugal rights. We hold that the word cruelty as used in Section 22 of the Indian Divorce Act is not restricted to physical cruelty. The question as to whether the plaintiff can be held to be guilty of legal cruelty towards the defendant has to be considered afresh, by the Court below. It has also to be considered whether the plaintiff has deserted the defendant without reasonable excuse for two years or upwords. We, therefore, set aside the judgment and decree of the Court below and send back the case to that. Court for fresh disposal according to law in the right of the observations made above. In the circumstance of this case, we direct the parties to bear their respective costs in this Court except the Court-fee paid on the memorandum of appeal which will be refunded to the appellant. Costs in the Court below will abide the final result of the suit. The appeal is allowed in the manner stated above.

44. Appeal allowed.