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PETITIONER: NARAYAN GANESH DASTANE

       Vs.

RESPONDENT: SUCHETA NARAYAN DASTANE

DATE OF JUDGMENT19/03/1975

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. GOSWAMI, P.K. UNTWALIA, N.L.

CITATION:  1975 AIR 1534            1975 SCR  (3) 967  1975 SCC  (2) 326  CITATOR INFO :  RF         1988 SC 121  (7,10)

ACT: Hindu      Marriage      Act--Section      10(1)(b)      and 23(1)(a)(b)--Meaning   of   cruelty--Burden  of   proof   in matrimonial   matters--Whether  beyond  reasonable   doubt-- Condonation--of cruelty--Whether sexual intercourse  amounts to condonation--Whether condonation is  conditional--Revival of cruelty. Code of Civil Procedure--Section 100 and 103--Powers of High Court in second appeal. Evidence Act--Section 3--Proof, meaning of.

HEADNOTE: The  appellant  husband filed a petition  for  annulment  of marriage on the round of fraud, for divorce on the ground of unsoundness  of  mind  and for judicial  separation  on  the ground  of  cruelty.  The appellant and  respondent  possess high  educational  qualifications and they were  married  in 1956.   Two children were born of the marriage one  in  1957 and the other in 1959. The  Trial  Court  rejected  the  contention  of  fraud  and unsoundness  of mind.  It, however, held the wife guilty  of cruelty  and  on that ground passed a  decree  for  judicial separation.  Both sides went in appeal to the District Court which dismissed the husband’s appeal and allowed the wife’s. The  husband then filed a Second Appeal in the  High  Court. The High Court dismissed that appeal. On appeal to this Court, HELD  (i)  Normally  this Court would  not  have  gone  into evidence especially as the High Court itself could not  have gone into the evidence in second appeal.  Section 100 of the C.P.C.  restricts  the  jurisdiction of the  High  Court  in second  appeal to questions of law or to substantial  errors or  defects  in  the procedure  which  might  possibly  have produced  error or defect in the decision of the  case  upon merits.  The High Court came to the conclusion-that both the courts  below had failed to apply the correct principles  of law  in determining the issue of cruelty.   Accordingly  the High Court proceeded to consider evidence for itself.  Under s. 103 C.P.C. the High Court can determine any issue of fact

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if the evidence on the record is sufficient but if the  High Court takes upon itself the duty of determining an issue  of fact, its powers to appreciate evidence would be subject  to the  same restraining conditions to which the power  of  any court  of facts is ordinarily subject.  The limits  of  that power  are  not wider for the reason that  the  evidence  is being appreciated by the High Court and not by the  District Court.  While appreciating evidence, inferences may and have to be drawn but courts of facts have to remind themselves of the  line  that  divides  an  inference  from  guess   work. Normally  this Court would have remanded the matter  to  the High  Court  for a fresh consideration of the  evidence  but since  the proceedings were pending for 13 years  the  Court itself went into the evidence. [973 F-974 H] (ii) The burden of proof in a matrimonial petition-must  lie on the petitioner because ordinarily the burden lies on  the party  which affirms a fact, not on the party  which  denied it.  This principle accords with commonsense, as it is  much easier to prove a positive than a negative.  The  petitioner must, therefore. prove that the respondents had treated  him with cruelty within; the meaning of r. 10(1)(b) of the  Act. But the High Court was wrong in holding that the  petitioner must  prove his case beyond a reasonable doubt.  The  normal rule which governs civil proceedings is that a fact is  said to  be  established  if it is  proved  by  preponderance  of probabilities.  Under s. 3 of the Evidence Act a act is said to be. proved when the court either believes it to exist  or if  considers its existence so probable that a  prudent  man ought,  in  the circumstances, to act upon  the  supposition that  it exists.  The first step in this process to fix  the probabilities. the second to weigh them.  The impossible  is weeded 968 out  in  the  first stage, the  improbable  in  the  second. Within the wide range, of probabilities the Court has  often a  difficult  choice  to make but it is  this  choice  which ultimately    determines   where   the   preponderance    of probabilities  lies.   Important issues like the  status  of parties demand closer scrutiny than those like the loan on a promissory note.  Proof beyond reasonable doubt is proof  by a higher standard which generally governs criminal trials or trials  involving  enquiries into issues  of  quasi-criminal nature.  It is wrong to import such considerations in trials of  a  purely civil nature.  Neither s.10 nor s. 23  of  the Hindu  Marriage Act requires that the petitioner must  prove his case beyond reasonable doubt S. 23 confers on the  court the power to pass a decree if it is satisfied on the matters mentioned   in   Clauses  (a)  to  (e)  of   that   Section. Considering  that proceedings under the Act are  essentially of  a civil nature the word ’satisfied’ must mean  satisfied on a preponderance of probabilities and not satisfied beyond a  reasonable  doubt.   The  society  has  a  stake  in  the institution of marriage and, therefore, the erring spouse is treated  not  as a mere defaulter but as an  offender.   But this social philosophy, though it may have a bearing on  the need  to have the clearest proof of an allegation before  it is accepted as a ground for- the dissolution of marriage, it has  no  bearing  on the standard of  proof  in  matrimonial cases.   In  England, a view was at one time  taken  that  a petitioner  in a matrimonial petition must establish his  or her case beyond a reasonable doubt but the House of Lords in Blyth  v. Blyth has held that the grounds of divorce or  the bars  to  the divorce May be proved by  a  preponderance  of probability.   The High Court of Australia has also taken  a similar view. [975 A-976 B]

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(iii) On the question of condonation of cruelty, a  specific provision  of  a specific enactment has to  be  interpreted, namely  s.  10(1) (b).  The enquiry, therefore,  has  to  be whether  the  conduct  charged  as  cruelty  is  of  such  a character  as  to  cause in the mind  of  the  petitioner  a reasonable apprehension that it will be harmful or injurious for  him to live with the respondent.  It is not  necessary, as under the English Law, that the cruelty must be of such a character  as to cause danger to life, limb or health or  as to give rise to a reasonable apprehension of such a  danger. It  is  risky  to rely on English decisions  in  this  field although  awareness  of foreign decisions can  be  a  useful guide  in  interpreting our laws.  The apprehension  of  the petitioner that it will be harmful or injurious to live with the other party has to be reasonable.  It is, however, wrong to  import the concept of a reasonable man as known  to  the law  of negligence for judging matrimonial  relations.   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 on  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.  The Court  has to deal not with an ideal husband and an ideal wife but with the  particular man and woman before it.  The only rider  is that  of s. 23(1)(a) of the Act that the relief  prayed  for can  be  decreed  only  if  the  petitioner  is  not  taking advantage of his own wrong. [977 D-G; 978 C-F; 979 A] (iv) Acts like the tearing of the Mangal Sutra, locking  out the  husband  when  he is due to  arrive  from  the  office, rubbing  of chilly powder on the tongue of an infant  child, beating  a  child  mercilessly  while  in  high  fever   and switching  on the light at night and sitting by the  bedside of  the  husband merely to nag him are acts  which  tend  to destroy  the legitimate ends and objects of matrimony.   The conduct of wile amounts to cruelty within the meaning of  s. 10(1) (b) of the Act.  The threat that she would put an  end to her own life or that she will set the house on fire,  the threat that she will make the husband lose his job and  have the matter published in newspapers and the persistent abuses and insults hurled at the husband and his parents are all of so  grave an order as to ’imperil the appellant’s  sense  of personal  safety,  mental happiness,  job  satisfaction  and reputation. [985 B-E] (v)  In  any proceeding under the Act, whether  defended  or not,  the  relief  prayed for can be  decreed  only  if  the petitioner  has not condoned the cruelty.  The wife did  not take  up the plea of condonation in her  written  statement. The Trial Court did not frame any issue of condonation.  The District Court 969 did not address itself on the question of condonation  since it  did not find the conduct of the wife to be  cruel.   The High  Court held that the conduct of the wife was not  cruel and  in  any  case it was condoned.  S.  23  (1)  (b)  casts obligation  on  the  court  to  consider  the  question   of condonation.    Condonation   means   forgiveness   of   the matrimonial  offence and restoration of spouses to the  same position  as  he  or she  occupied  before  the  matrimonial offence  was committed.  Cruelty generally does not  consist of  a single isolated act.  It consists in most cases  of  a series  of acts spread over a period of time.  Law does  not require  that  at the first appearance of a cruel  act,  the other  spouse  must  leave the  matrimonial  home  lest  the

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continued coharbitation be construed as condonation.  Such a construction   will   hinder  reconciliation   and   thereby frustrate the benign purpose of marriage laws.  The evidence on condonation consists in this case in the fact that spouse led  a  normal  sexual  life despite  the  various  acts  of cruelty.   This  is  not  a  case  where  the  spouse  after separation  indulge in stray acts of sexual  intercourse  in which  case the necessary intent to forgive and restore  may be  said to be lacking.  Such stray acts may bear more  than one  explanation  but  if during  cohabitation  the  spouses uninfluenced by the conduct of the offending spouse, lead  a life  of  intimacy which  characterised  normal  matrimonial relationship,   the  intent  to  forgive  and  restore   the offending  spouse to the original status way  reasonably  be inferred.   There  is then no scope for imagining  that  the conception of the child could be the result of a single  act of sexual intercourse and that such an act could be a  stark animal  act  unaccompanied by the nobler graces  of  marital life.   Sex  plays  an important role in  married  life  and cannot  be  separated  from  other  factors  which  lend  to matrimony  a sense of fruition and  fulfilment.   Therefore, evidence  showing that the spouse led a normal  sexual  life even  after serious acts of cruelty by one spouse  is  proof that the other spouse condoned that cruelty.  Intercourse in circumstances   as  obtained  here  would  raise  a   strong inference    of   condonation.    That   inference    stands uncontradicted.   the  husband  not  having  explained   the circumstances In which hecame to lead and live a normal sexual life,                  [985 G-987 B] (vi)  But condonation of a matrimonial offence is not to  be likened  to a Presidential pardon which once  granted  wipes out   the   guilt  beyond  the   possibility   of   revival. Condonation is always subject to the implied condition  that the  offending spouse will not commit a further  matrimonial offence either of the same variety as the one condoned or of any  other  variety.  No matrimonial offence  is  erased  by condonation.  It is obscured but not obliterated.   Condoned cruelty   can,  therefore,  be  revived.   For  revival   of condonation  it is not necessary that the conduct should  be enough by itself to found a degree for judicial  separation. The wife in not allowing the husband access to the  children cannot be said to have revived the earlier cruelty since the children  were of tender age and the only person  who  could escort  them had left or had to leave the  matrimonial  home for  good.   The subsequent conduct of the wife  has  to  be assessed  in the context in which the husband behaved.   The husband  persistently  accused  the  wife  of  insanity  and refused  to maintain her.  In that context, the  allegations made  by  the wife in her letter to  the  Government  cannot revive the original cause of action, though it is true  that more serious the original offence the less grave need be the subsequent act to constitute revival.                       [987 C; 988 C-D, G-H; 991 E-H] Held, dismissing the appeal, That the wife was guilty of cruelty but the husband condoned it and the subsequent conduct of the wife was not such as to amount to revival of the original cause of action. [992 B-C]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2224  of 1970. From the judgment and order dated the 19th February, 1969 of

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the Bombay High Court in Second Appeal No. 480 of 1968. V. M. Tarkunde, S. Bhandare, P. H. Parekh and Manju Jaitely, for the appellant. V.  S.  Desai,  S.  B.  Wad  and  Jayashree  Wad,  for   the respondents. 970 The Judgment of the Court was delivered by CHANDRACHUD, J.-This is a matrimonial dispute arising out of a  petition  filed  by the appellant for  annulment  of  his marriage with the respondent or alternatively for divorce or for  judicial separation.  The annulment was sought on  the- ground  of  fraud, divorce on the ground of  unsoundness  of mind and judicial separation on the ground of cruelty. The  spouses possess high academic qualifications  and  each one claims a measure. of social respectability and  cultural sophistry.  The evidence shows some traces of these.  But of this  there need be no doubt,: the voluminous  record  which they have collectively built up in the case contains a  fair reflection of their rancour and acrimony, The appellant, Dr. Narayan Ganesh Dastane, passed his  M.Sc. in  Agriculture from the Poona University.  He was  sent  by the  Government  of India to Australia in the  Colombo  Plan Scheme.   He obtained his Doctorate in  Irrigation  Research from  an  Australian  University and returned  to  India  in April, 1955.  He worked for about 3 years as an Agricultural Research Officer and in October, 1958 he left Poona to  take charge  of a new post as an Assistant Professor of  Agronomy in  the  ’Post-Graduate School, Pusa Institute,  Delhi.   At present  be is said to be working on a  foreign  assignment. His father was a solicitor-cum lawyer practising in Poona. The respondent, Sucheta, comes from Nagpur but she spent her formative years mostly in Delhi.  Her father was transferred to  Delhi  in  1949 as an Under Secretary  in  the  Commerce Ministry  of the Government of India and she came  to  Delhi along  with  the rest of the family.  She passed  her  B.Sc. from the Delhi University in 1954 and spent a year in  Japan where her father was attached to the Indian Embassy.   After the  rift in her marital relations, she obtained a  Master’s Degree in Social Work.  She has done field work in  Marriage Conciliation  and Juvenile Delinquency.  She is  at  present working in the Commerce and Industry Ministry, Delhi. In  April, 1956 her parents arranged her marriage  with  the appellant.  But before finalising the proposal, her  father- B.  R. Abhyankarwrote two letters to the appellant’s  father saying  in  the first of these that the  respondent  "had  a little  misfortune before going to Japan in that she  had  a bad attack of sunstroke which affected her mental  condition for  sometime".  In the second letter which followed  at  an interval of two days, "cerebral malaria" was mentioned as an additional  reason of the mental affectation.   The  letters stated  that  after a course of treatment  at  the  Yeravada Mental  Hospital,  she was cured : "you find her as  she  is today".   The  respondent’s  father  asked  her  appellant’s father to discuss the matter, if necessary, with the doctors of  the  Mental Hospital or with one Dr. P. L.  Deshmukh,  a relative of the respondent’s mother.  The letter was written avowdely’in order that the appellant and his people  "should not  be in the dark about an important episode" in the  life of the respondent, which "fortunately, had ended happily". Dr.  Deshmukh confirmed what was stated in the  letters  and being  content  with his assurance, the  appellant  and  his father made no enqui- 971 ries  with the Yeravada Mental Hospital.  The  marriage  was performed at Poona on May 13, 1956.  The appellant was  then

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27 and the respondent 21 years of age. They  lived  at  Arbhavi in District Belgaum  from  June  to October,  1956.   On  November 1,  1956  the  appellant  was transferred to Poona where the two lived together till 1958. During  this period a girl named Shubha was born to them  on March  11,  1957.  The respondent delivered in  Delhi  where ,her parents lived and returned to Poona in June, 1957 after an absence, normal on such occasions, of about 5 months.  In October, 1958 the appellant took a job in the Pusa Institute of Delhi, On March 21, 1959 the second daughter, Vibha,  was born.    The  respondent  delivered  at  Poona   where   the appellant’s  parents lived and returned to Delhi in  August, 1959.   Her  parents were living at this time  in  Djakarta, Indonesia. In January, 1961, the respondent went to Poona to attend the marriage of the appellant’s brother, a doctor-by profession, who  has been given an adoption in the Lohokare  family.   A fortnight  after  the  marriage, on February  27,  1961  the appellant  who had also gone to Poona for the  marriage  got the  respondent  examined  by Dr. seth,  a  Psychiatrist  in charge  of the Yeravada Mental Hospital.  Dr. Seth  probably wanted  adequate  data to make his diagnosis  and  suggested that  he would like to have a few sittings exclusively  with the respondent.  For reasons good or bad, the respondent was averse  to submit herself to any such scrutiny.  Either  she herself  or  both  she and the appellant  decided  that  she should  stay  for some time with a relative of  bers,  Mrs-. Gokhale.   On the evening of the 27th, she packed  her  tit- bits and the appellant reached her to Mrs. Gokhale’s  house. There   was  no  consultation  thereafter  with  Dr.   Seth. According to the appellant, she had promised to see Dr, Seth but she denies that she made any such promise.  She believed that  the appellant was building up a case that she  was  of unsound mind and she was being lured to walk into that trap. February  1961 was the last that they lived together-.   But on  the  day of parting she was three months in  the  family way.  The third child, again a girl, named Pratibha was born on  August 19, 1961 when her parents were in the midst of  a marital crisis. Things  had by then come to an impossible pass.   And  close relatives instead of offering wise counsel were fanning  the fire  of discord that was devouring the marriage.  A gentleman  called  Gadre whose letter-head  shows  an  "M.A. (Phil.)  M.A.  (Eco.)  LL.B.", is a maternal  uncle  of  the respondent.   On-March  2,  1961  he  had  written  to  tile appellant’s  father a pseudonymous letter now proved  to  be his, full of malice and sadism.  He wrote :               "I on my part consider myself to be the father               of  ’Brahmadev ............. This is only  the               beginning.  From the spark of your foolish and               half-baked  egoism,  a  big  conflagration  of               family  quarrels will break out and  all  will               perish therein This image of the mental  agony               suffered  by all your kith and’ kin  gives  me               extreme happiness...... You worthless  person,               who cherishes a desire to spit on my face, now               behold that all the world is going to spit  on               your old cheeks. 972               So  why  should  I loose  the  opportunity  of               giving  you a few severe slaps on your  cheeks               and  of  fisting your ear.  It is  my  earnest               desire that the father-in-law should beat your               son with foot-ware in a public place." On March 11, 1961 the appellant returned to Delhi all alone.

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Two  days  later the respondent followed him  but  she  went straight to her parents’ house in )Delhi.  On the 15th,  the appellant wrote a letter to the police asking for protection as  he  feared  danger to his  life  from  the  respondent’s parents and relatives.  On the 19th, the respondent saw  the appellant but that only gave to the parties one more  chance to give vent to mutual dislike and distrust.  After a  brief meeting,  she left the broken home for good.  On  the  20th, the  appellant once again wrote to the police  renewing  his request for protection. On March 23, 1961 the respondent wrote to the appellant com- plaining  against his conduct and asking for money  for  the maintenance  of herself and the daughters.  On May 19,  1961 the respondent wrote a letter to the Secretary, Ministry  of Food and Agriculture, saying that the appellant had deserted her, that he had treated her with extreme cruelty and asking that  the Government should make separate provision for  her maintenance.  On March 25, her statement was recorded by  an Assistant  Superintendent  of Police, in which  she  alleged desertion  and  ill-treatment  by  the  appellant.   Further statements were recorded by the police and the Food Ministry also   followed  up  respondent’s  letter  of  May  19   but ultimately  nothing came out of these complaints and  cross- complaints. As stated earlier, the third daughter, Pratibha, was born on August 19, 1961.  On November 3, 1961 the appellant wrote to respondent’s father complaining of respondent’s conduct  and expressing  regret  that not even a  proper  invitation  was issued  to  him when the naming ceremony of  the  child  was performed.   On  December 15, 1961 the  appellant  wrote  to respondent’s father stating that he had decided to go to the court  for  seeking  separation from  the  respondent.   The proceedings out of which this appeal arises were  instituted on February 19, 1962. The parties are Hindus but we do not propose, as is commonly done  and  as has been done in this case,  to  describe  the respondent  as a "Hindu wife in contrast to non-Hindu  wives as if wotmen professing this or that particular religion are exclusively privileged in the matter of good sense,  loyalty and conjugal kindness.  Nor shall we refer to the  appellant as a "Hindu husband" as if that species unfailingly projects the  image of tyrant husbands.  We propose to  consider  the evidence  on its merits, remembering of course the  peculiar habits, ideas, susceptibilities and expectations of  persons belonging  to  the  strata of society  to  which  these  two belong.  All circumstances which constitute the ,occasion or setting for the conduct complained of have relevance but  we think that no assumption can be made that respondent is  the oppressed and appellant the oppressor.  The evidence in  any case ought to bear a secular examination. The  appellant  asked  for annulment of his  marriage  by  a decree  of  nullity under section 12(1) (c)  of  ’The  Hindu Marirage Act’, 25 of 973 1955,  ("The  Act") on the ground that his  consent  to  the marriage was obtained by fraud.  Alternatively, he asked for divorce  under section 13 (1) (iii) on the ground  that  the respondent  was incurably of unsound mind for  a  continuous period  of not less than three years  immediately  preceding the  presentation  of  the  petition.   Alternatively,   the appellant asked for Judicial separation under section  10(1) (b)  on the ground that the respondent had treated him  with such  cruelty as to cause a reasonable apprehension  in  his mind that. it would be harmful or injurious for him to  live with her.

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The  appellant  alleged  that prior  to  the  marriage,  the respondent  was treated in the Yeravada Menfal Hospital  for Schizophrenia  but her father fraudulently represented  that she  was  treated for sun-stroke and cerebral  malaria.  The trial  court rejected this contention. It also rejected  the contention    that   the   respondent   was    of    unsound mind.It,however,  held  that the respondent  was  guilty  of cruelty  and on that ground it passed a decree for  judicial separation. Both  sides  went  in appeal to  the  District  Court  which dismissed   the   appellant’s   appeal   and   allowed   the respondent’s, with the result that the petition filed by the appellant stood wholly dismissed. The  appellant then filed Second Appeal No. 480 of  1968  in the Bombay High Court.  A learned single Judge of that court dismissed that appeal by a judgment dated February 24, 1969. This Court granted to the appellant special leave to appeal, limited to the question of judicial separation on the ground of cruelty. We  are  thus not concerned with the  question  whether  the appellant’s  consent to the marriage was obtainede by  fraud or  whether the respondent bad been of unsound mind for  the requisite period preceding the presentation of the petition. The  decision-of the-High Court on those questions  must  be treated as final and can not be reopened. In  this  appeal  by special  leave,  against  the  judgment rendered  by the High Court in Second Appeal, we  would  not have  normally permitted the parties to take us through  the evidence in the case.  Sitting in Second Appeal, it was  not open  to  the High Court itself  to  reappreciate  evidence. Section  100  of the Code of Civil Procedure  restricts  the jurisdiction of the High Court in Second appeal to questions of law or to substantial errors or defects in the  procedure which  may  possibly have produced error or  defect  in  the decision  of the case upon the merits.  But the  High  Court came  to  the  conclusion that both  the  courts  below  had "failed   to  apply  the  correct  principles  of   law   in determining  the issue of cruelty".  Accordingly,  the  High Court proceeded to consider the evidence for itself and came to  the  conclusion  independently that  the  appellant  had failed  to establish that the respondent had treat him  with cruelty.   A  careful consideration of the evidence  by  the High Court ought to be enough assurance that the finding  of fact  is correct and it is not customary for this  Court  in appeals  under  Article 136 of the Constitution to  go  into minute  details of evidence and weigh them one  against  the other,  as  if for the first  time.   Disconcertingly,  this normal process is beset with practical difficulties. 974 In judging of the conduct of the respondent, the High  Court assumed  that  the  words of abuse or  insult  used  by  the respondent               "could  not  have been  addressed  in  vacuum.               Every  abuse,  insult, remark or  retort  must               have been probably in exchange for remarks and               rebukes from the husband............. a  court               is  bound  to consider the  probabilities  and               infer,  as  I have done, that they  must  have               been  in the context of the  abuses,  insults,               rebukes  and remarks made by the  husband  and               without evidence on the record with respect to               the  conduct  of the husband  in  response  to               which the wife behaved in a particular way  on               each occasion, it is difficult, if not  impos-               sible to draw inferences against the wife."

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We  find this approach difficult to accept.   Under  section 103  of the Code of Civil Procedure, the High Court may,  if the  evidence  on the record is  sufficient,  determine  any issue  of  ’fact necessary for the disposal  of  the  appeal which  has not been determined by the lower appellate  court or which has been wrongly determined by such court by reason of  any  illegality, omission, error or defect  such  as  is referred to in sub-section (1) of section 100.  But, if  the High Court takes upon itself the duty to determine an  issue of fact its power to appreciate evidence would be subject to the  same restraining conditions to which the power  of  any court  of facts is ordinarily subject.  The limits  of  that power  are  not wider for the reason that  the  evidence  is being appreciated by the High Court and not by the  District Court.   While  appreciating ,evidence, inferences  may  and have  to  be  drawn  but courts  of  facts  have  to  remind themselves of the line that divides an inference from guess- work.   If it is proved, as the High Court thought  it  was, that  the respondent had uttered words of abuse and  insult, the  High Court was entitled to infer that she had acted  in retaliation,  provided of course there was evidence,  direct or  circumstantial, to justify such an inference.   But  the High  Court  itself felt that there was no evidence  on  the record with regard to the conduct of the husband in response to  which  the  wife could be said to have  behaved  in  the particular manner.  The High Court reacted to this situation by  saying  that since there was no evidence  regarding  the conduct of the husband, "it is difficult, if not impossible, to  draw  inferences  against the wife".  If  there  was  no evidence   that   the  husband  had  provoked   the   wife’s utterances, no inference could be drawn against the husband. There was no question of drawing any inferences against  the wife   because,  according  to  the  High  Court,   it   was established  on  the  evidence  that  she  had  uttered  the particular words of abuse and insult. The  approach  of the High Court is thus erroneous  and  its findings are vitiated.  We would have normally remanded  the matter  to the High Court for a fresh consideration  of  the evidence  but this proceeding has been pending for 13  years and  we  thought  that rather than delay  the  decision  any further,  we should undertake for ourselves the  task  which the High Court thought it should undertake under section 103 of  the  Code.   That makes it  necessary  to  consider  the evidence in the case. 975 But before doing so, it is necessary to clear the ground  of certain  misconceptions, especially as they would appear  to have  influenced the judgment of the High Court.  First,  as to the nature of burden of Proof which rests on a petitioner in  a  matrimonial petition under the Act.   Doubtless,  the burden  must lie on 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  earlier to  prove a positive than a negative.  The  petitioner  must therefore  prove  that the respondent has treated  him  with cruelty within the meaning of section 10 (1) (b) of the Act. But  does the law require, as the High Court has held,  that the petitioner must prove his case beyond a reasonable doubt ?  In other words, though the burden lies on the  petitioner to establish the charge of cruelty, what is the standard  of proof to be applied in order Lo judge whether the burden has been discharged ? The  normal rule which governs civil proceedings is  that  a fact  can  be said to be estabilshed if it is  proved  by  a

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preponderance of probabilities. This  is for  the  reason that under the Evidence Act, section 3, a fact issaid to be proved  when  the  court  either believes  it  to  exist  or considersits  existence  so  probable that  a  prudent  man ought,  under the circumstances of the particular  case,  to act  upon  the  supposition  that  it  exists.   The  belief regarding  the existence of a fact may thus be founded on  a balance   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  a prudent  man,  so the court applies this  test  for  finding whether a fact in issue can be said to be proved.  The first step in this process is to fix the probabilities, the second to  weigh them, though the two may often  intermingle.   The impossible is weeded out at the first stage, the  improbable at  the second.  Within the wide range of probabilities  the court  has often a difficult choice to make but it  is  this choice which ultimately determines where. the  preponderance of  probabilities lies.  Important issues like  those  which affect  the status of parties demand a closer scrutiny  than those  like  the loan on a promissory note "the  nature  and gravity  of  an issue necessarily determines the  manner  of attaining  reasonable  satisfaction  of  the  truth  of  the issue"(1)  ;  or  as said by Lord Denning,  "the  degree  of probability depends on the subject-matter.  In proportion as the  offence is grave, so ought the proof to be clear"  (2). But  whether the issue is one of cruelty or of a loan  on  a promote, the test to apply is whether on a preponderance  of robabilities  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. Proof beyond reasonable doubt is proof by a higher  standard which generally governs criminal trials or trials  involving inquiry into issues of a quasi-criminal nature.  A  criminal trial  involves the liberty of the subject which may not  be taken away on a mere preponderance of probabilities.  If the probabilities are so’ nicely balanced that a reasonable, (1)  Per Dixon,J.in Wright v.Wright (1948)77 C.L.R.191at  p. 210. (2) Blyth v. Blyth, [1966] 1 A.E.R. 524 at 536. 976 not a vascillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact  to be  proved and the benefit of such reasonable doubt goes  to the  accused.  It is wrong to import such considerations  in trials of a purely civil nature. Neither  section 10 of the Act which enumerates the  grounds on which a petition for judicial separation may be presented nor  section 23 which governs the jurisdiction of the  court to  pass a decree in any proceeding under the  Act  requires that the petitioner must prove his case beyond a  reasonable doubt.  Section 23 confers on the court the power to pass  a decree if it is "satisfied" on matters mentioned in  clauses (a)  to  (e) of the section.  Considering  that  proceedings under  the Act are essentially of a civil nature,  the  word "satisfied"  must  mean  "satisfied on  a  preponderance  of probabilities"  and  not  "satisfied  beyond  a   reasonable doubt".  Section 23 does not alter the standard of proof  in civil cases. The  misconception  regarding  the  standard  of  proof   in matrimonial cases arises perhaps from a loose description of the  respondent’s  conduct in such cases as  constituting  a "matrimonial   offence".   Acts  of  a  spouse   which   are

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calculated to impair the integrity of a marital union have a social  significance.   To mar’ or not to marry  and  if  so whom, may well be a private affair but the freedom to  break a  matrimonial tie is not.  The society has a stake  in  the institution  of marriage and therefore the erring spouse  is treated  not  as a mere defaulter but as an  offender.  ]But this social philosophy, though it may have a bearing on  the need  to have the clearest proof of an allegation before  it is  accepted as a ground for the dissolution of a  marriage, has  no  bearing  on the standard of  proof  in  matrimonial cases. In England, a view was at one time taken that the petitioner in  a matrimonial petition must establish his case beyond  a reasonable  doubt  but in Blyth v. Blyth(P),  the  House  of Lords  held  by  a majority that so far as  the  grounds  of divorce   or  the  bars  to  divorce  like   connivance   or condonation  are concerned, "the case; like any civil  case, may be proved by a preponderance of probability".  The  High Court of Austraila in Wright v. Wright (2) , has also  taken the  view that "the civil and not the criminal  standard  of persuasion  applies to matrimonial causes, including  issues of  adultery".   The High Court was therefore  in  error  in holding  that  the petitioner must establish the  charge  of cruelty "beyond reasonable doubt".  The High Court adds that "This  must be in accordance with the law of evidence",  but we are not clear as to the implications of this observation. Then,  as regards the meaning of "Cruelty".  The High  Court on  this  question  begins with  the  decision  in  Moonshee Bazloor  Rubeem v. Shamsoonnissa Begum(3), where  the  Privy Council observed:               "The  Mohomedan law, on a question of what  is               legal  cruelty  between Man  and  Wife,  would               probably not differ materially from our own of               which one of the most recent exposition is the               following :- ’There must be actual violence (1) [1966] A.E.R. 524 at 536. (2) 1948, 77 C.L.R. 191 at 210. (3) 11 Moore’s Indian Appeals 551. 977               of  such a character as to  endanger  personal               health   or  safety;  or  there  must   be   a               reasonable apprehension of it’." The  High Court then refers to the decisions of some of  the Indian Courts to illustrate "The march of the Indian  Courts with  the Englishs Courts" and cites the  following  passage from  D.  Tolstoy’s  "The Law and Practice  of  Divorce  and Matrimonial Causes" (Sixth Ed., p. 61):               "Cruelty which is a ground for dissolution  of               marriage   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." The  High  Court  concludes that  "Having  regard  to  these principles  and  the  entire evidence in  the  case,  in  my judgment, I find that none of the acts complained of against the respondent can he considered to be so sufficiently grave and  weighty  as to be described as cruel according  to  the matrimonial law." An awareness of foreign decisions could be a useful asset in interpreting our own laws.  But it has to be remembered that we have to interpret in this case a specific provision of  a specific  enactment, namely, section 10(1) (b) of  the  Act. What constitutes cruelty must depend upon the terms of  this statute which provides :

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             "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 areasonable               apprehension  in  the mind of  the  petitioner               that  it will be harmful or injurious for  the               petitioner to live with the other party;" The inquiry therefore has to be whether the conduct  charged a,.- cruelty is of such a character as to cause in the  mind of the petitioner a reasonable apprehension that it will  be harmful  or injurious for him to live with  the  respondent. It  is  not necessary, as under the English  law,  that  the cruelty must be of such a character as to cause "danger"  to life,  limb  or health or as to give rise  to  a  reasonable apprehension  of  such a danger.  Clearly, danger  to  life, limb  or  health  or a reasonable apprehension of  it  is  a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to live with the other. The  risk of relying on English decisions in this field  may be shown by the learned Judge’s reference to a passage  from Tolstoy  (p. 63) in which the learned author, citing  Horton v. Horton(1), says :               "Spouses take each other for better or  worse,               and  it is not enough to show that  they  find               life   together  impossible,  even  if   there               results injury to health." (1) [1940] P. 187. 978 If the danger to health arises merely from the fact that the spouses find it impossible to live together as where one  of the parties shows an attitude of indifference to the  other, the  charge of cruelty may perhaps fail.  But under  section 10(1) (b), harm or injury to health, reputation, the working career  or the like, would be an important consideration  in determining whether the conduct of the respondent amounts to cruelty.  Plainly, what we must determine is not whether the petitioner has proved the charge of cruelty having regard to the  principles of English law, but whether  the  petitioner proves that the respondent has treated him with such cruelty as  to cause a reasonable apprehension in his mind  that  it will  be  harmful  or injurious for him  to  live  with  the respondent. One other matter which needs to be clarified is that  though under section 10(1) (b), the apprehension of the  petitioner that it will be harmful or injurious to live with the  other party  has  to  be reasonable, it is wrong,  except  in  the context  of  such apprehension, to import the concept  of  a reasonable man as known to the law of negligence for judging of matrimonial relations.  Spouses are undoubtedly  supposed and expected to conduct their joint venture as best as  they might  but  it is no function of a court  inquiring  into  a charge  of  cruelty  to philosophise on  the  modalities  of married  life.   Some  one may want to keep  late  hours  to finish the day’s work and some one may want to get up  early for a morning round of golf.  The court cannot apply to  the habits or hobbies of these the test whether a reasonable man situated  similarly will behave in a similar fashion.   "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  com- plaining  of  the  acts.  The question is  not  whether  the

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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  circums- tances   may  be  extreme  cruelty  under  another  set   of circumstances."(1) The Court has to deal, not with an  ideal husband  and ideal wife (assuming any such exist)  but  with the particular man and woman before it.  The ideal couple or a  near-ideal one will probably have no occasion to go to  a matrimonial court for, even if they may not be able to drown their differences, their ideal attitudes may help them over- look  or gloss over mutual faults and failures.  As said  by Lord Reid in his speech in Gollins v. Gollins (2).               "In  matrimonial  cases we are  not  concerned               with the reasonable man, as we are in cases of               negligence.  We are dealing with this man  and               this woman and the fewer a priori  assumptions               we  make  bout them the  better.   In  cruelty               cases  one can hardly ever even start  with  a               presumption  that the parties  are  reasonable               people,  because  it is hard  to  imagine  any               cruelty case ever arising if both the  spouses               think and behave as reasonable people." We  must therefore try and understand this Dr.  Dastane  and his  wife Sucheta as nature has made them and as  they  have shaped their lives. (1)  American Jurisprudence, 2nd Ed., Vol. 24, p. 206. (2)  [1963] 2 A.E.R. 966,970. 979 The  only rider is the interdict of section 23 ( 1 ) (a)  of the  Act that the relief prayed for can be decreed  only  if the court is satisfied that the petitioner is not in any way taking advantage of his own wrong.  Not otherwise. We  do  not propose to spend time on the  trifles  of  their married  life.   Numerous incidents have been cited  by  the appellant   as   constituting   cruelty   but   the   simple trivialities which can truly be described as the reasonable, wear and tear of married life have to be ignored.  It is  in the context of such trivialities that one says that  spouses take each other for better or worse.  In many marriages each party  can,  if  it  so wills, discover  many  a  cause  for complaint   but   such   grievances   arise   mostly    from temperamental     disharmony.     Such     disharmony     or incompatibility is not cruelty and will not furnish a  cause for  the  dissolution of marriage.  We will  therefore  have regard  only  to grave and weighty  incidents  and  consider these to find what place they occupy on the marriage canvas. The  spouses  parted  company  on  February  27,  1961,  the appellant  filed his petition on February 19, 1962  and  the trial began in September, 1964.  The 3-1/2 years’ separation must naturally have created many more misunderstandings  and further  embitterment.   In such an atmosphere, truth  is  a common  casualty and therefore we consider it safer  not  to accept the bare word of the appellant either as to what  the respondent  said or did or as to the genesis of some of  the more serious incidents.  The evidence of the respondent  too would  be open to the same criticism but the explanation  of her  words and deeds, particularly of what she put  in  cold print,  must  come  from her oral word and that  has  to  be examined with care. The married life of these spouses is well-documented, almost incredibly  documented.  They have reduced to  writing  what crossed their minds and the letters which they have  written to  each  other  bear  evidence of the  pass  to  which  the

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marriage had come.  Some of these were habitually written as the  first thing in the morning like a morning cup  (if  tea while  some  were written in the silence of  mid-night  soon after the echo of harsh words had died down.  To think  that this  young couple could indulge in such an orgy of  furious letter-writing is to have to deal with a problem out of  the ordinary  for  it is seldom that a husband and  wife,  while sharing a common home, adopt the written word as a means  of expression or communication. The  bulk of the correspondence is by the wife who seems  to have  a flair for letter-writing.  She writes in some  style and as true as "The style is the man", her letters furnish a clue  to  her  personality.  They are  a  queer  mixture  of confessions and opprobrious accusations.  It is strange that almost  every one connected with this couple his a  penchant for  writing.  The wife, apart from her voluminous  letters, has  written an autobiographical account of her  unfortunate experiences  in  the  Yeravada  Hospital,  calling  it  "Mee Antaralat Tarangat Asta" ("while I was floating in  space"). The    husband’s   father   idealised   the    Shiva-Parvati relationship in a book called : "Gauriharachai Goad  Kahani" ("The  sweet story of Gaurihar").  Quite a few of the  wifes relatives including a. younger sister of hers and of  course her maternal 980 uncle  have set their pen to paper touching some  aspect  or the other of her married life.  Perhaps, it was  unfortunate that the promised millennium that did not come began with  a letter.   That  was the letter of April 25, 1956  which  the wife’s  lather  wrote  to the  husband’s  father  while  the marriage  negotiations were in progress.  The marriage  took place on May 13, 1956. Nothing  deserving any serious notice happened till  August, 1959 except that the letters Exs. 556, 238, 243 and 244 show that  quite frequently the respondent used to get into  fits of temper and say things for which She would express  regret later.   In the letter Ex. 556 dated November 23,  1956  she admits  to  having behaved "very badly"; in  Ek.  238  dated March  26,  1959 she admits that she was  behaving  like  an "evil star" and had harassed the appellant; in Ex. 243 dated May  5,  1959 she says that she was aware of  her  "lack  of sense"  and  asks for forgiveness for  having  insulted  the appellant,  his parents, his sister and her husband; and  in Ex.  244 dated May 22, 1959 she entreats the appellant  that he  should not feel guilty for the insults hurled by her  at his parents. The period from August 1959 to March 1960 was quite critical and  the correspondence covering that period shows  that  an innate  lack  of self-control had driven the  respondent  to inexorable conduct.  By the letter.  Ex. 256 dated  February 16, 1960 the appellant complained to the respondent’s father who  was  then  in Indonesia that  the  respondent  kept  on abusing him, his parent and sister and that he was extremely unhappy.  The appellant says in the letter that  differences between  a husband and wife were understandable but that  it was   impossible  to  tolerate  the  respondent   constantly accusing him and his relatives of wickedness.  The appellant complains  that  the respondent used to say  that  the  book written  by  his father should be burnt to ashes,  that  the appellant  should apply the ashes to his forehead, that  the whole  Dastane family was utterly mean and that  she  wished that  his family may be utterly ruined.  The  appellant  was gravely  hurt  at  the  respondent’s  allegation  that   his father’s  ’Sanad’  bad been once forfeited.   The  appellant tells the respondent’s father that if he so desired he could

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ask her whether anything stated in the letter was untrue and that  he  had  conveyed to her what be was  stating  in  the letter.   It may be stated that the respondent  admits  that the appellant had shown her this letter before it was posted to  her  father.  On March 21. 1960 the respondent  wrote  a letter  (Ex. 519) to the appellant’s parents  admitting  the truth  of the allegations made by the appellant in Ex.  256. On  June  23, 1960 the respondent made a noting in  her  own hand  stating that she had accused the appellant of being  a person with a beggarly luck, that she had said that the food eaten  at his house, instead of being digested  would  cause worms  in  the  stomach and that she had given  a  threat  : "murder shall be avenged with murder". During  June  1,  1960  to December  15,  1960  the  marital relations  were  subjected  to a  stress  and  strain  which ultimately  wrecked the marriage.  In about September,  1960 the appellants father probably offered to mediate and  asked the  appellant  and the respondent to submit  to  him  their respective  complaints in writing.  The appellant’s bill  of complaints is at Ex. 426 dated October 23, 1960.  The letter much 981 too long to be reproduced, contains a sorry tale.  The  gist of  the  more  important of the  appellant’s  grievances  in regard to the period prior to June, 1960 is this : (1)’  The respondent  used  to describe the appellant’s  mother  as  a boorish woman; (2) On the day of ’Paksha’ (the day oil which oblations  are offered to ancestors) she used to  abuse  the ancestors  of the appellant; (3) She tore off  the  ’Mangal- Sutra’; (4) She beat the daughter   Shubha  while  she   was running a high temperature of 104’; (5) One    night     she started  behaving as if she was ’possessed’.  She  tore  off the  Mangal-Sutra once again and said that she will not  put it  on  again; and (6) She used to switch on  the  light  at midnight  and  sit  by the  husband’s  bedside  nagging  him through  the  night,  as a result  he  literally  prostrated himself before her on several occasions. The  gist of the incidents from May to October,  1960  which the  appellant describes as ’a period of utmost  misery’  is this.  (1)  The respondent would indulge in  every  sort  of harassment  and  would blurt out anything that came  to  her mind;  (2) One day while a student of the  appellant  called Godse  was sitting in the outer room she shouted : "You  are not a man at all"; (3) In the heat of anger she used to  say that she would pour kerosene on her body and would set  fire to  herself  and  the house; (4) She used to  lock  out  the appellant  when  he was due to return from the  office.   On four  or  five  occasions he had to go back  to  the  office without taking any food; (5) For the sheer sake of harassing him she would hide his shoes, watch, keys and other  things. The letter Ex. 426 concludes by saying : ,               "She  is a hard headed,  arrogant,  merciless,               thoughtless,  unbalanced girl devoid of  sense               of  duty.  Her ideas about a husband are :  He               is  a dog tied at doorstep who is supposed  to               come  and  go at her beck  and  call  whenever               ordered.   She behaves with the  relatives  of               her  husband  as if they  were  her  servants.               When  I see her besides herself with  fury,  I               feel  afraid  that  she may  kill  me  at  any               moment.  I have become weary of her nature  of               beating the daughters, scolding and   managing               me every night uttering abuses and insults." Most  of these incidents are otherwise, supported,  some  by the  admissions  of the respondent herself,  and  for  their

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proof  we  do  not  have to accept  the  bare  word  of  the appellant. On July 18, 1960 the respondent wrote a letter (Ex. 274)  to the appellant admitting that within the bearing of a visitor she  had  beaten  the daughter Shubha  severely.   When  the appellant protested she retorted that if it was a matter  of his  prestige, be should not have procreated  the  children. She has also admitted in this letter that in relation to her daughters  she bad said that there will be world deluge  be- cause of the birth of those "ghosts".  On or about July  20. 1960  she  wrote another letter (Ex. 275) to  the  appellant admitting  that  she had described him as "a  monster  in  a human  body",  that  she had and  that  be’should  not  have procreated  children.  that  he  should  "Pickle  them   and preserve them in a jar" and that she had given a threat that she would see to it that he loses his job and then she would publish  the news in the Poona newspapers.  On December  15, 1960 the appellant wrote a 982 letter  (Ex. 285) to the respondent’s father complaining  of the  strange and cruel behaviour not only of the  respondent but  of  her mother.  He says that the  respondent’s  mother used to threaten him that since she was the wife of an Under Secretary she knew many important persons and could get  him dismissed  from  service,  that she used  to  pry  into  his correspondence in his absence and that she even went to  the length of saying that the respondent ought to care more  for her parents because she could easily get another husband but not another pair of parents. The  respondent  then  went to  Poona  for  the  appellant’s brother’s  marriage, where she was examined by Dr.  Seth  of the  Yeravada  Hospital and the spouses  parted  company  on February 27, 1961. The  correspondence  subsequent to February 27,  1961  shall have to be considered later in a different,, though a highly important, context.  Some of those letters clearly bear  the stamp of being written under legal advice.  The parties  had fallen  out  for  good and the  domestic  war  having  ended inconclusively  they were evidently preparing ground  for  a legal battle. In  regard to the conduct of the respondent as reflected  in her admissions, two contentions raised on her behalf must be considered.  It is urged in the first place that the various letters  containing  admissions were written  by  her  under coercion.  There is no substance in this contention.  In her written   statement,   the  respondent  alleged   that   the appellant’s  parents  had  coerced  her  into  writing   the letters.  At the trial she shifted her ground and said  that the  coercion  proceeded from the appellant  himself.   That apart, at a time when the marriage had gone asunder and  the respondent sent to the appellant formal letters resembling a lawyer’s  notice, some of them by registered post, no  alle- gation  was  made  that the appellant  or  his  parents  had obtained  written  admissions from her.   Attention  may  be drawn  in this behalf to the letters Exs. 299 and 314  dated March  23 and May 6, 1961 or to the elaborate complaint  Ex. 318  dated May 19, 1961 which she made to the  Secretary  to Government  of  India,  Ministry of  Food  and  Agriculture. Prior to that on September 23, 1960 she had drawn up a  list of her complaints (Ex. 424) which begins by saying : "He has oppressed  me in numerous ways like the following." But  she does  not speak therein of any admission or  writing  having been obtained from her.  Further, letters like Exs. 271  and 272  dated  respectively  June 23 and July  10,  1960  which besides  containing  admissions  on her  part  also  contain

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allegations  against the appellant could certainly not  have been  obtained by coercion.  Finally, considering  that  the respondent was always surrounded by a group of relatives who had assumed the role of marriage-counsellors, it is unlikely that any attempt to coerce her into making admissions  would have  been  allowed to escape unrecorded.   After  all,  the group here consists of greedy letter-writers. The  second  contention  regarding  the  admissions  of  the respondent is founded on the provisions of section  23(1)(a) of the Act under which the court cannot decree relief unless it  is  satisfied  that "the petitioner is not  in  any  way taking  advantage of his own wrong’.  The fulfilment of  the conditions mentioned in, section 23(1) is so imperative 983 that  the  legislature has taken the care  to  provide  that "then,  and  in such a case, but not  otherwise,  the  court shall decree such relief accordingly".  It is urged that the appellant is a bigoted and egocentric person who demanded of his  wife an impossibly rigid standard of behaviour and  the wife’s conduct must be excused as being in selfdefence.   In other  words, the husband is said to have provoked the  wife to say and act the way she did and he cannot be permitted to take advantage of his own wrong.  The appellant, it is true, seems a stickler for domestic discipline and these so-called perfectionists  can  be quite difficult to  live  with.   On September  22,  1957 the respondent made a  memorandum  (Ex. 379) of the instructions given by the appellant, which makes interesting reading: "Special instructions given by my husband. (1)  On rising up in the morning, to look in the minor. (2)  Not to fill milk vessel or tea cup to the brim. (3)  Not to serve meals in brass plates cups and vessels. (4)  To  preserve  carefully  the letters  received  and  if addresses of anybody are given therein to note down the same in the note book of addresses. (5)After  serving  the first course during meals,  not  to repeatedly  ask  ’what do you want?’ but to  inform  at  the beginning of the meals how much and which are the courses. (6)As  far  as  possible not to dip  the  fingers  in  any utensils. (7)  Not to do any work with one hand. (8)  To keep Chi.  Shuba six feet away from the primus stove and Shegari. (9)  To regularly apply to her ’Kajal’ and give  her  tomato juice, Dodascloin etc.  To make her do physical exercise, to take  her for a walk and not to lose temper with her  for  a year. (10)  To give him his musts and the things he requires  when he starts to go outside. (11)  Not to talk much. (12)   Not to finish work somehow or the other; for  example to write letters in good hand writing, to take a good paper, to write straight and legibly in a line. (13)   Not to make exaggerations in letters. (14)  To show imagination in every work.  Not to  note  down the milk purchased on the calendar." 984 Now,  this was utterly tactless but one cannot say  that  it called  for any attack in self-defence.  The  appellant  was then 28 and the respondent 22 years of age.  In that  early- morning  flush  of  the marriage’ young  men  and  women  do entertain  lavish expectations of each other do not  and  as years roll by they see the folly of. their ways.  But we think that the wife was really offended by the  instructions given  by the appellant.  The plea of self-defence  seems  a

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clear  after-thought  which  took birth  when  there  was  a fundamental failure of faith and understanding. Reliance was then placed on certain letters to show that the husband  wanted to assert his will at any cost, leaving  the wife  no  option but to retaliate.  We see no  substance  in this  grievance either.  The, plea in the written  statement is  one  of  the  denial  of  conduct  alleged  and  not  of provocation.   Secondly, there are letters on the record  by which  the  wife  and her relatives had from  time  to  time complimented  the husband and his parents for their  warmth, patience and understanding. Counsel  for  the  respondent laid  great  emphasis  on  the letter,  Ex.  244 dated May 22, 1959 written by her  to  the appellant in which she refers to some "unutterable question" put  by  him  to her.  It is urged that  the  appellant  was pestering her with a demand for divorce and the "unutterable question"  was  the one by which he asked for  divorce.   No such inference can in our opinion be raised.  The respondent has  not produced the letter to which Ex. 244 is  reply;  in the written statement there is hardly a suggestion that  the appellant  was asking her for a divorce; and  the  appellant was  not asked in his evidence any explanation in regard  to the "unutterable question". These defences to the charge of cruelty must accordingly  be rejected.   However, learned counsel for the  respondent  is right  in  stressing the warning given by Denning  L.J.,  in Kaslefsky  v. Kaslefsky that : "If the door of cruelty  were opened  too  wide, we should soon  find  ourselves  granting divorce for incompatibility of temperament.  This is an easy path  to  tread especially in undefended cases.   The  temp- tation must be resisted test we slip into a state of affairs where the institution of marriage itself is imperilled." But we think that t1o hold in this case that the wife’s  conduct does not amount to cruelty is to close for ever the door  of cruelty  so as to totally prevent any access thereto.   This is  not  a case of mere austerity of  temper,  petulance  of manners,  rudeness of language or a want of civil  attention to the needs of the husband and the household.  Passion  and petulance  have  perhaps to be suffered in  silence  as  the price of what turns out to be an injudicious selection of  a partner.  But the respondent is   the mercy of her inflexible temper.   She delights in causing misery to her husband  and his  relation-,  and she willingly  suffers  the  calculated insults which her relatives hurled at him and his parents  : the false accusation that, "the pleader’s Sanad of that  old bag  of  your  father was forfeited"; "I  want  to  see  the ruination of the whole Dastane dynasty", "burn (1)[1950] 2 A.E.R. 398,403. 985 the book written by your father and apply the ashes to  your forehead";  "you are not a man" conveying that the  children were  not his; "you are a monster in a human body.  "I  will make  you  lose  your  job  and  publish  it  in  the  Poona newspapers"-these and similar outbursts are not the ordinary wear  and  tear of married life but they  became,  by  their regularity  a  menace  to the peace and  well-being  of  the household.   Acts  like  the tearing  of  the  Mangal-Sutra, locking  out the husband when he is due to return  from  the office,  rubbing chillie powder on the tongue of  an  infant child,  beating a child mercilessly while in high fever  and switching  on the light at night and sitting by the  bedside of  the  husband merely to nag him are acts  which  tend  to destroy  the  legitimate  ends  and  objects  of  matrimony. Assuming  that there was some justification  for  occasional sallies  or show of temper, the pattern of  behaviour  which

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the respondent generally adopted was grossly excessive. The  conduct  of the respondent clearly amounts  to  cruelty within  the meaning of section 10(1) (b) of the Act.   Under that provision, the relevant consideration is to see whether the conduct is such as to cause a reasonable apprehension in the  mind  of  the petitioner that it  will  be  harmful  or injurious  for him to live with the respondent.  The  threat that  she will put an end of her own life or that  she  will set  the  house on fire, the threat that she will  make  him lose his job and have the matter published in newspapers and the,  persistent abuses and insults hurled at the  appellant and  his parents are all of so grave an order as to  imperil the appellant’s sense of personal safety. mental, happiness, job  satisfaction  and reputation.   Her  once-too-frequent. apologies do not reflect genuine contrition but were  merely impromptu device to tide over a crisis temporarily. The next question for consideration is whether the appellant had  at any time condoned the respondent’s  cruelty.   Under section  23(1) (b) of the Act, in any proceeding  under  the Act  whether defended or not, the relief prayed for  can  be decreed  only and only if "where the ground of the  petition is cruelty the petitioner has not in any manner condoned the cruelty". The  respondent  did  not take up the plea  in  her  written statement  that  the  appellant bad  condoned  her  cruelty. Probably  influenced by that omission, the trial  court  did not frame any issue on condonation.  While granting a decree of judicial separation on the ground of cruelty, the learned Joint  Civil Judge, Junior Division, Poona, did not  address himself  to  the question of condonation.   In  appeal,  the learned Extra Assistant Judge, Poona, having found that  the conduct  of  the respondent did not amount to  cruelty,  the question  of condonation did not arise.  The High  Court  in Second  Appeal  confirmed the finding of the  1st  Appellate Court  on the issue of cruelty and it further held  that  in any case the alleged cruelty was condoned by the  appellant. The  condonation, according to the High Court, consisted  in the  circumstance that the spouses co-habited till  February 27, 1961 and a child was born to them in August, 1961. 986 Before  us, the question of condonation was argued  by  both the  sides.   It is urged on behalf of  the  appellant  that there  is no evidence of condonation while the  argument  of the respondent is that condonation is implicit in the act of co-habitation and is proved by the fact that on February 27, 1961  when  the spouses parted, the respondent was  about  3 months pregnant.  Even though condonation was not pleaded as a  defence by the respondent it is our duty, in view of  the provisions of section 23(1) (b), to find whether the cruelty was  condoned  by  the appellant.   That  section  casts  an obligation  on  the  court  to  consider  the  question   of condonation,  an obligation which has to be discharged  even in  undefended cases.  The relief prayed for can be  decreed only  if  we  are satisfied "but not  otherwise",  that  the petitioner  has not in any manner condoned the cruelty.   It is,  of course, necessary that there should be  evidence  on the  record  of  the case to show  that  the  appellant  had condoned the cruelty. Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position  as he  or  she occupied before the offence was  committed.   To constitute condonation there must be, therefore, two  things :   forgiveness   and  restoration(1).   The   evidence   of condonation  in this case is, in our opinion, as strong  and satisfactory as the evidence of cruelty.  But that  evidence

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does not consist in the mere fact that the spouses continued to  share  a common home during or for some time  after  the spell of cruelty.  Cruelty, generally, does not consist of a single, isolated act but consists in most cases of a  series of acts spread over a period of time.  Law does not  require that  at  the  first appearance of a cruel  act,  the  other spouse  must leave the matrimonial home lest  the  continued co-habitation   be   construed  as  condonation.    Such   a construction   will   hinder  reconciliation   and   thereby frustrate the benign purpose of marriage laws. The  evidence of condonation consists here in the fact  that the   spouses   led  a  normal  sexual  life   despite   the respondent’s Acts of cruelty.  This is not a case where  the spouses, after separation, indulged in a stray act of sexual intercourse,  in which case the necessary intent to  forgive and restore may be said to be lacking.  Such stray acts  may bear more than one explanation.  But if during co-habitation the  spouses, uninfluenced by the conduct of  the  offending spouse,  lead a life of intimacy which characterises  normal matrimonial relationship, the intent to forgive and  restore the  offending spouse to the original status may  reasonably be inferred.  There is then no scope for imagining that  the conception of the child could be the result of a single  act of sexual intercourse and that such an act could be a  stark animal  act  unaccompanied by the nobler graces  of  marital life.  One might then as well magine that the sexual act was undertaken just in order to kill boredom or even in a spirit of  revenge.  Such speculation is impermissible.  Sex  plays an  important role in marital life and cannot  be  separated from  other  factors  which lend to  matrimony  a  sense  of fruition  and fulfilment.  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 ingre- 1. The Law and Practice of Divorce and Matrimonial Causes by D. Tolstoy sixth Ed., p. 75. 987 dient 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 appellant 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. But  condonation  of  a matrimonial offence  is  not  to  be likened  to a full Presidential Pardon under Article  72  of the  Constitution which, once granted, wipes out  the  guilt beyond  the possibility of revival.  Condonation  is  always subject  to the implied condition that the offending  spouse will  not commit a fresh matrimonial offence, either of  the same  variety as the one condoned or of any  other  variety. "No  matrimonial  offence is erased by condonation.   It  is obscured  but not obliterated" (1).  Since the condition  of forgiveness  is  that no further matrimonial  offence  shall occur, it is not necessary that the fresh offence should  be ejusdem  generis  with the  original  offence(2).   Condoned cruelty  can  therefore  be revived, say,  by  desertion  or adultery." Section  23 (1) (b) of the Act, it may be urged,  speaks  of condonation but not of its revival and therefore the English doctrine  of  revival should not be  imported  into  matters

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arising  under the Act.  Apparently, this argument may  seem to  receive some support from the circumstances  that  under the  English  law, until the passing of the  Divorce  Reform Act,  1969  which while abolishing the traditional  bars  to relief  introduces defences in the nature of bars, at  least one  matrimonial  offence,  namely, adultery  could  not  be revived  if once condoned (3).  But a closer examination  of such an argument would reveal its weakness.  The doctrine of condonation was established by the old ecclesiastical courts in Great Britain and was adopted by the English Courts  from the  canon  law.  ’Condonation’ is a  technical  word  which means  and implies a conditional waiver of the right of  the injured  spouse to take matrimonial proceedings.  It is  not ’forgiveness’   as  commonly  understood  (4).  In   England condoned  adultery  could  not be received  because  of  the express provision contained in section 3 of the  Matrimonial Causes  Act, 1963 which was later incorporated into  section 42(3)  of the Matrimonial Causes Act, 1965.  In the  absence of  any  such provision in the Act governing the  charge  of cruelty,  the  word ’condonation’ must receive  the  meaning which  it  has borne for centuries in the world  of  law("). ’Condonation’  under  section  23 (1)  (b)  therefore  means conditional forgiveness, the implied condition being that no further matrimonial offence shall be committed. (1)  See  Words and Phrases Legally  Defined  (Butterworths) 1969 Ed., Vol I, p. 305, ("Condonation"). (2)  See  Halsbury’s Laws of England, 3rd Ed., Vol.  12,  p. 3061. (3)  See Rayden on Divorce, 11th Ed. (1971) pp. 11, 12,  23, 68, 2403. (4)  See  Words and Phrases Legally  Defined  (Butterworths) 1969 Ed., p. 306 and the Cases cited therein. (5)  See  Ferrers vs Ferrers (1791) 1 Hag.  Con 130  at  pp. 130, 131. 988 It  therefore becomes necessary to consider the  appellant’s argument that even on the assumption that the appellant  had condoned  the  cruelty,  the respondent  by  her  subsequent conduct  forfeited  the  conditional  forgiveness,   thereby reviving   the  original  cause  of  action   for   judicial separation on the ground of cruelty.  It is alleged that the respondent  treated the appellant with cruelty during  their brief  meeting on March 19, 1961, that she refused to  allow to the appellant any access to the children, that on May 19, 1961  she wrote a letter (Ex. 318) to the Secretary  to  the Government  of India, Ministry of Food and Agriculture,  New Delhi,  containing false and malicious  accusations  against the  appellant  and his parents and that  she  deserted  the appellant  and  asked  the Government to  provide  her  with separate maintenance. These  facts,  if proved, shall have to  be  approached  and evaluated  differently from the facts which were alleged  to constitute cruelty prior to its condonation.  The  incidents on  which  the appellant relied to establish the  charge  of cruelty  had to be grave and weighty.  And we found them  to be so.  In regard to the respondent’s conduct subsequent  to condonation,  it  is  necessary to bear in  mind  that  such conduct  may not be enough by itself to found a  decree  for judicial  separation and yet it may be enough to revive  the condoned offence.  For example, gross familiarities short of adultery(1) or desertion for less than the statutory  period (2) may be enough to revive a condoned offence. The  incident of March 19, 1961 is too trifling  to  deserve any  notice.   That incident is described by  the  appellant himself  in  the complaint (Ex. 295) which he  made  to  the

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police on March 20, 1961.  He says therein that on the  19th morning,  the  respondent  went  to  his  house  with   some relatives, that those relatives-instigated her against  him, that  they entered his house though he asked them not to  do so  and that she took away certain household  articles  with her.   As  shown  by her letter (Ex.  294)  dated  the  19th itself,  the  articles which she took away were  some  petty odds  and  ends like a do]], a slate, a baby  hold-all,  two pillows,  a bundle of clothes and a baby-cart.   The  police complaint    made    by   the   appellant    betrays    some hypersensitivity. As  regards  the  children, it does  seem  that  ever  since February 27, the appellant was denied a chance to meet them. His letters Exs. 307.    309  and 342 dated April 20,  April 21 and November 23, 1961 respectively contain the  grievance that the children were deliberately not allowed to see him., From his point of view the grievance could be real but  then the  children, Shubha and Vibha, were just 4 and 2 years  of age  in  February, 1961 when their parents  parted  company. Children  of such tender age need a great amount of  looking after and they could not have been sent to meet their father unescorted.  The one person who could so escort them was the mother who bad left or bad to leave the matrimonial home for good.    The   appellant’s  going  to  the  house   of   the respondent’s  parents  where  he  was  living  was  in   the circumstances an impracticable proposition.  Thus, the  wall that  divided the parents denied to the appellant access  to his children. (1)  Halsbury’s Law-, of England, 3rd Ed., Vol. 12, p.  306, para 609. (2) Beard vs.  Beard [1945] 2 A.E.R. 306. 989 The allegations made by the respondent in her letter to  the Government,  Ex.  318  dated May 19, 1961  require  a  close consideration.   It is a long letter, quite an  epistle,  in tune  with the, respondent’s proclivity as a  letter-writer. By that letter, she asked the Government to provide separate maintenance  for herself and the children.  The  allegations contained in the letter to which the appellant’s counsel has taken  strong  exception are these : (1) During  the  period that  she  lived with the appellant, she  was  subjected  to great harassment as well as mental and physical torture; (2) The  appellant had driven her out of the house  on  February 27, 1961; (3) The appellant had deserted her and had declar- ed that he will not have any connection with her and that he will  not render any financial help for the  maintenance  of herself  and the children. He also refused to  give  medical help  to  her in her advanced stage of  pregnancy;  (4)  The appellant  had denied to her even the barest necessities  of life  like  food  and  clothing;  (5)  The  parents  of  (he appellant were wicked persons and much of her suffering  was due  to the influence which they had on the  appellant;  (6) The  appellant  used to threaten her that he  would  divorce her,  drive her out of the house and even do away  with  her life,  (7) The plan to get her examined by Dr. Seth  of  the Peravada  Mental Hospital was an insincere wicked  and  evil move  engineered  by  the appellant,  his  brother  and  his father,  (8)  On  her  refusal  to  submit  to  the  medical examination  any  further, she was driven out of  the  house with  the children after being deprived of the valuables  on her person and in her possession; and (9) The appellant  had subjected  her  to  such cruelty as to  cause  a  reasonable apprehension  in  her  mind  that it  would  be  harmful  or injurious for her to live with him. Viewed  in isolation, these allegations present a  different

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and   a  somewhat  distorted  picture.   For  their   proper assessment  and understanding, it is necessary  to  consider the context in which those allegations came to be made.   We will, for that purpose, refer to a few letters. On  March  7,  1961 the  respondent’s  mother’s  aunt,  Mrs. Gokhale wrote a letter (Ex. 644) to the respondent’s mother. The letter has some bearing on the events which happened  in the wake of the separation which took place on February  27, 1961.  It shows that the grievance of the respondent and her relatives was not so much that a psychiatrist was  consulted as  that  the consultation was arranged  without  any  prior intimation  to  the respondent.  The letter shows  that  the appellant’s  brother  Dr. Lohokare, and  his  brother-in-law Deolalkar, expressed regret that the respondent should  have been  got  examined  by  a  psychiatrist  without   previous intimation to any of her relatives.  The letter speaks of  a possible compromise between the husband and wife and it sets out  the  terms which the respondent’s relatives  wanted  to place  before  the  appellant.   The  terms  were  that  the respondent  would  stay  at her  parents’  place  until  her delivery but she would visit the appellant off and on;  that the children would be free to visit the appellant; and  that in  case  the appellant desired that the  respondent  should live with him, he should arrange that Dr. Lohokare’s  mother should  stay  with them in Delhi for a few days.   The  last term of the proposed compromise Was that instead of  digging the  past  the  husband and wife should live  in  peace  and happiness.  The letter bears mostly the handwritting 990 of  the  respondent  herself and the  significance  of  that circumstance  is  that  it was evidently  written  with  her knowledge and consent.  Two things are clear from the letter :  one,  that  the  respondent did not  want  to  leave  the appellant  and two, that she did not either want to  prevent the  children  from seeing the appellant.   The  letter  was written  by one close relative of the respondent to  another in  the ordinary course of events and was not, so  to  say,, prepared in order to create evidence or to supply a possible defence.  It reflects a genuine attitude, not a  makebelieve pose and the feelings expressed therein were shared by  the, respondent whose handwriting the letter bears. This letter must be read along with the letter Ex. 304 which the respondent sent to the appellant on April 18, 1961.  She writes :               "I  was sorry to hear that you are unwell  and               need treatment.  I would always like never  to               fail  in my wifely duty of looking after  you,               particularly  when  you are  ailing,  but  you               will,  no doubt, agree that even for this,  it               will not be possible for me to join you in the               house out of which you have turned me at  your               father’s instance.  ’This is, therefore,  just               to  keep you informed that if you come to  7/6               East Patel Nagar, I shall be able to nurse you               properly  and  my parents will  ever  be  most               willing  to  afford the  necessary  facilities               under  their  care to let me  carry  out  this               proposal of mine." There  is no question that the respondent had no  animus  to desert  the appellant and as stated by her or on her  behalf more  than  once,  the appellant had on  February  27,  1961 reached her to Mrs. Gokhale’s house in Poona, may be in  the hope   that  she  will  cooperate  with  Dr.  Seth  in   the psychiatric exploration.  She did not leave the house of her own volition.

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But the appellant had worked himself up to believe that  the respondent had gone off her mind.  On March 15, 1961 he made a complaint (Ex. 292) to the Delhi Police which begins  with the  recital that the respondent was in the Mental  Hospital before  marriage  and  that  she  needed  treatment  from  a psychiatrist.   He did say that the respondent was  "a  very loving and affectionate person" but he qualified it by  say- ing  :  "when excited, she appears to be  a  very  dangerous woman, with confused thinking". On April 20, 1961 the appellant wrote a letter (Ex. 305)  to the  respondent  charging  her once again  of  being  in  an "unsound  state  of mind".  The appellant declared  by  that letter that he will not be liable for any expenses  incurred by  her during her stay in her parents’ house.  On the  same date he wrote a letter (Ex. 307) to the respondent’s  father reminding  him that he, the appellant, had accepted  a  girl "who  had returned from the Mental Hospital".  On April  21, 1961 he wrote it letter (Ex. 309) to the Director of  Social Welfare,  Delhi  Administration, in which he  took  especial care to declare that the respondent "was in the Poona Mental Hospital  as a lunatic before the marriage".  The  relevance of  these reiterations regarding the so-called  insanity  of the 991 respondent,  particularly  in the last  letter,  seems  only this,  that the appellant was preparing ground for a  decree of  divorce or of annulment of marriage.  He was surely  not so  naive as to believe that the Director of Social  Welfare could arrange to "give complete physical and mental rest" to the  respondent.   Obviously, the appellant was  anxious  to disseminate  the information as widely as possible that  the respondent was of unsound mind. On May 6, 1961 the respondent sent a reply (Ex. 314) to  the appellant’s  letter,  Ex. 305, dated April  20,  1961.   She expressed her willingness to go back to Poona as desired  by him, if he could make satisfactory arrangements for her stay there.  But she asserted that as a wife she was entitled  to live  with  him and there was no purpose in  her  living  at Poona "so many miles away from Delhi, without your shelter". In  regard to the appellant’s resolve that he will not  bear the  expenses  incurred by her, she stated that  not  a  pie remitted  by him will be illspent and that, whatever  amount he would send her will be, accounted for fully. It is in this background that on May 19, 1961 the respondent wrote  the letter Ex. 318 to the Government.  When asked  by the  Government to offer his explanation, the  appellant  by his  reply  Ex.  323 dated July 19,  1961  stated  that  the respondent  needed  mental  treatment,  that  she  may  have written  the letter Ex. 318 in a "madman’s frenzy" and  that her  father  had "demoralised" her.  In his letter  Ex.  342 dated  November  23 , 1961 to the  respondent’s  father,  he described the respondent as "’your schizophrenic daughter". Considered  in  this context, the allegations  made  by  the respondent in her letter Ex. 318 cannot revive the  original cause  of  action.  These allegations were provoked  by  the appellant  by  his  persistent  and  purposeful  accusation, repeated  times without number, that the respondent  was  of unsound mind.  He snatched every chance and wasted no oppor- tunity  to  describe  her  as a mad  woman  which,  for  the purposes  of  this appeal, we must assume to  be  wrong  and unfounded.  He has been denied leave to appeal to this Court from the finding of the High Court that his allegation  that the  respondent  was of unsound mind is baseless.   He  also protested that he was not liable to maintain the respondent. It  is  difficult  in  these  circumstances  to  accept  the

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appellant’s argument either that the respondent deserted him or  that  she  treated him with cruelty  after  her  earlier conduct was condoned by him. It  is true that the more serious the original offence,  the less  grave  need  be the subsequent acts  to  constitute  a revival(1)  and  in  cases of cruelty,  "very  slight  fresh evidence is needed to show a resumption of the cruelty.  for cruelty of character is bound to show itself in conduct  and behaviour, day in and day out, night in and night out".  But the  conduct of the respondent after condonation  cannot  be viewed  apart  from  the  conduct  of  the  appellant  after condonation.  Condonation is conditional forgiveness but the grant of such forgiveness does not give (1) Cooper vs.  Cooper (1950) W.N. 200 (H.L.) (2) Per Scott L. J. in Batram vs.  Batram (1944) p. 59 at p. 60. 992 to  the  condoning  spouse a charter  to  malign  the  other spouse.   If  this  were so, the condoned  spouse  would  be required mutely to submit to the cruelty of the other spouse without relief or remedy.  The respondent ought not to  have described  the  appellant’s  parents as  "wicked"  but  that perhaps  is  the only allegation in the letter  Ex.  318  to which  exception may be taken.  We find ourselves unable  to rely  on that solitary circumstance to allow the revival  of condoned cruelty. We therefore hold that the respondent was guilty of  cruelty but the appellant condoned it and the subsequent conduct  of the respondent is not such as to amount to a revival of  the original  cause  of  action.  Accordingly,  we  dismiss  the appeal  and  direct the appellant to pay the  costs  of  the respondent. P. H. P.            Appeal dismissed. 993