{S} vs {AC}
2011 Latest Caselaw 521 Del

    IN THE HIGH COURT OF DELHI AT NEW DELHI

                        Judgment reserved on : 01.11.2010
                        Judgment delivered on: 31.01.2011

                     MAT APP No. 19/2004

{S}                                           ......Appellant
                 Through: Mr. R.K. Kapoor and Mr.Varun Kumar
                             Advs.

                             Vs.

{AC}              ......Respondent
               Through: Mr. Ajay Goswami with Mr. Diwakar
                             Singh, Advs.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                         Yes
2. To be referred to Reporter or not?                      Yes
3. Whether the judgment should be reported
   in the Digest?                                          Yes


KAILASH GAMBHIR, J.

*

1. By this appeal filed under Section 28 of the Hindu

Marriage Act, 1955 the appellant seeks to challenge the

judgment and decree dated 5.2.2004 passed by the court of

the learned ADJ whereby a decree of divorce was passed in

favour of the respondent and against the appellant.

2. Brief facts of the case relevant for deciding the

present appeal are that the parties got married on 17.4.1992

at Delhi according to Hindu rites and ceremonies and a child

named „Samir‟ was born out of the said wedlock on 22.5.1996.

The respondent alleged that the appellant did not fulfill her

marital obligations and was cruel to him from the very

beginning of their marriage. Therefore a petition for divorce

under section 13(1) (ia) was filed by the respondent which

vide judgment and decree dated 5.2.2004 was decreed in

favour of the respondent and against the appellant. Feeling

aggrieved with the same, the appellant has preferred the

present appeal.

3. Mr. R.K. Kapoor, counsel appearing for the

appellant contended that the appellant and the respondent

were maintaining very happy and cordial relations and such a

relationship is well reflected from the letters sent by the

respondent to the appellant during the period from

14.11.1994 to 22.5.1995. Elaborating his arguments, counsel

further contended that even if any alleged act of cruelty was

committed by the appellant prior to the said date, the same

stood condoned by the passionate letters sent by the

respondent to the appellant. The other limb of argument

taken by the counsel for the appellant was that a child was

born out of the said wedlock on 22nd May, 1996, which would

show that the child must have been conceived by the

appellant somewhere in the month of August, 1995 and at

least till the month of August, 1995 the relationship between

the parties can be presumed to be cordial and congenial and

if any alleged act of cruelty has been committed by the

appellant prior to the said date of conception that also stands

condoned when the said child was conceived by the appellant

wife in August, 1995.

4. Counsel further contended that so far the tape

recorded conversation proved on record by the respondent as

Ex. PW- 1/60 is concerned, the same by itself cannot be taken

as an act of cruelty committed by the appellant based on

which the decree of divorce can be granted. Counsel also

submitted that the tape recorded conversation was recorded

by the respondent with mala fide intentions so as to create

evidence in his favour which is borne out of the fact that the

respondent had filed the divorce petition just within a gap of

about 15 days from the date of the said tape recorded

conversation. Counsel also submitted that admittedly both the

parties were living together till 28th October, 1996 and

divorce petition was filed by the respondent on 9th January,

1997 and except the said tape recorded conversation no other

act of cruelty has been complained of by the respondent in the

divorce petition. Counsel further submitted that no doubt a

criminal complaint was filed by the appellant in July, 1997

before the Crime Against Women Cell, Nanakpura after filing

of the divorce petition but any allegation leveled by the

appellant in the said complaint cannot be taken into

consideration as the said complaint was not pursued by the

appellant and no arrest of the respondent or his family

members was made pursuant to the lodging of the said

complaint by the appellant. Counsel thus submitted that even

in the absence of any evidence led by the appellant, the

respondent failed to establish his case to prove the ground of

cruelty envisaged under Section 13(1)(ia) of the Hindu

Marriage Act, 1955. Alternatively, the counsel submitted that

even if any act of cruelty is taken to have been committed by

the appellant then the same already stood condoned by the

respondent due to his subsequent conduct. In support of his

arguments, counsel for the appellant placed reliance on the

judgment of the Apex Court in Dastane Vs. Dastane AIR

1975 SC 1534.

5. Mr.Ajay Goswami, counsel for the respondent,

refuting the said submissions of the counsel for the appellant

submitted that the behaviour of the appellant throughout has

been very cruel towards the respondent and this would be

evident from the fact that the respondent had to send a legal

notice in August, 1993 i.e. just after 1 ½ years from the date

of the marriage. Counsel further submitted that since the

appellant had committed various acts of cruelty after the said

love letters written by the respondent to the appellant,

therefore, all the previous acts of cruelty of the appellant

would get revived. Counsel also submitted that the

respondent has proved on record the said tape recorded

conversation and the kind of language used by the appellant

towards the respondent as well as his family members would

clearly show the attitude of the appellant towards the

respondent and his family members. The contention of the

counsel for the respondent was that the abusive language

used by the appellant in the said conversation caused mental

cruelty to the respondent. Counsel further submitted that the

appellant did not join the company of the respondent at the

matrimonial home at Greater Kailash after his return from

Chennai in October, 1995 and this also caused cruelty to the

respondent. Counsel thus submitted that no fault can be

found with the judgment of the learned trial court and the

same should be upheld.

6. I have heard learned counsel for the parties at

considerable length and carefully gone through the records.

7. The present case concerns the matrimony of two

doctors who could not fulfill their marital obligations towards

each other due to irreconcilable differences. The marriage

between the parties took place on 17.4.1992 and right from

the date of inception of the marriage, problems arose between

them which led to the service of a legal notice by the

respondent upon the appellant just within a period of one and

a half years from the date of the marriage. However, they

still managed to sail through somehow but ultimately a

divorce petition was preferred by the respondent under

Section 13 (1) (ia) of the Hindu Marriage Act in 1997. Serious

allegations of mental cruelty were leveled by the respondent

against the appellant and all such allegations were also

proved by the respondent in his evidence. The respondent

was cross examined by the appellant at length and as per the

finding of the learned trial court, not even a single suggestion

was given by the appellant to discredit the testimony of the

respondent in his cross examination with regard to the

various incidents of cruelty committed by the appellant. It is

also a matter of record that the appellant failed to lead any

evidence either to refute the allegations leveled by the

respondent or to place on record her side of the story before

the court. In this background of facts, the learned trial court

proceeded with the matter taking the allegations leveled by

the respondent against the appellant as correct.

8. Mr. R.K. Kapoor, learned counsel appearing for the

appellant very fairly submitted that he would also proceed

to argue the matter taking the allegations leveled by the

respondent as correct but would impress upon this court

that all such acts of cruelty, even if they are accepted as

correct, were condoned by the respondent by his subsequent

conduct. In such a background this court will proceed in the

matter taking the entire gamut of allegations of cruelty

leveled by the respondent against the appellant as correct and

then examine the contention of the counsel for the appellant

whether those acts of cruelty were condoned by the

respondent by his subsequent conduct. As per the counsel for

the appellant, two subsequent acts of the respondent would

clearly show that the previous acts of cruelty committed by

the appellant stood condoned by the respondent. With the

birth of the child on 22.05.1996, it would be quite apparent

that there was resumption of conjugal relations between the

parties, the counsel contended. The contention of the counsel

for the appellant was that at least till the month of

conception, which must be somewhere in the month of August

1995, the pervious acts of cruelty, even if they are taken to

have been committed by the appellant, stood condoned by the

respondent. The second act of condonation claimed by the

counsel for the appellant was that between 14.11.1994 to

22.5.1995, various letters were written by the respondent,

which were proved on record as Exs. RW1/R1 to R 31. The

contention of the counsel was that these letters were written

so passionately by the respondent and had there been any

complaint by the respondent against the appellant on

account of her cruel conduct then the respondent husband

could not have written such letters displaying his love,

sentiments and passion for the appellant. Counsel thus urged

that all the previous acts of cruelty, if any, committed by the

appellant stood condoned by the respondent by writing said

letters to the appellant. Counsel thus submitted that the said

two subsequent acts of the respondent would clearly show

that not only there was resumption of conjugal relationship

between the parties but would clearly show that the

respondent had completely condoned the previous acts of

cruelty, if any, committed by the appellant towards the

respondent.

9. So far the subsequent acts of cruelty alleged to

have been committed by the appellant are concerned, the

counsel submitted that the tape recorded conversation, on

which reliance was placed by the learned trial court, the

same by itself cannot be taken as an act constituting cruelty

as such conversation was recorded by the respondent with

the sole objective to create evidence in his favour before filing

divorce petition as the said tape recorded conversation was

recorded by the respondent within a short gap of about 15

days before the presentation of the divorce petition by him.

Counsel thus submitted that the said tape recorded

conversation was doctored by the respondent in a manner so

that the appellant could be shown in poor light in her

utterances without correctly highlighting the fact that under

what circumstances she was responding in that particular

manner. Counsel thus submitted that the learned trial court

has wrongly given undue weightage on self serving evidence

adduced by the respondent. Counsel also submitted that the

learned trial court also wrongly placed reliance on the

criminal complaint filed by the appellant with the Crime

Against Women Cell despite the fact that the appellant did not

pursue the said criminal complaint and such a conduct of the

appellant would further show that she never wanted to create

any kind of disharmony in the marital relationship.

10. The correctness and veracity of the testimony of

any witness can only be tested through his cross examination.

Section 138 of the Indian Evidence Act, 1872 therefore,

confers a very valuable right on a party to cross-examine a

witness who enters the witness box to support the case of one

of the parties. It is an admitted fact between the parties that

not only the appellant failed to impeach the creditability or

creditworthiness of the testimony of the witnesses produced

by the respondent, especially the respondent himself, with

regard to the alleged incidents of cruelty committed by the

appellant but the appellant even did not care to lead any

evidence to counter the case of the respondent. The counsel

for the appellant very fairly conceded this position and

therefore, urged that he will press his plea of condonation on

the part of the respondent due to his subsequent acts and also

the plea that the acts of cruelty alleged to have been

committed by the appellant after the condonation of pervious

acts of cruelty cannot be treated as „cruelty‟ as envisaged

under Section 13(1) (ia) of the Hindu Marriage Act.

11. First dealing with the concept of condonation, it

was defined by the Apex Court in the case of Dastane Vs.

Dastane, 1975 SC 1534, where it held that:

"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."

12. It is also a settled legal position that there cannot

be condonation if the offending spouse continues to indulge in

the commission of further acts of cruelty either physical or

mental. Either a temporary stay or even resumption of

conjugal rights though may be strong circumstances to infer

condonation on the part of the offending spouse but the

same by itself would not be sufficient to draw an inference

of condonation unless such a stay and resumption of conjugal

relationship is with an intent to restore back the marital

relationship with a sense of forgiveness and consequently not

to indulge in either repeating the previous acts or to inflict

more cruelty. In the present case, the counsel for the

appellant stated two instances which he contended were acts

from which condonation can be clearly inferred. First, was the

birth of the child on 22.5.96 and second was the writing of the

passionate letters by the respondent to the appellant from

14.11.94 to 22.5.95.

13. Dealing with the first instance, the birth of the

child "Samir" took place on 22.5.96 which means that the

appellant must have conceived in the month of August 1995.

It can be thus inferred that till August 1995 the parties had

normal sexual relationship and that it was not one stray act

of intimacy that must have led to the conception of the child.

It would be useful here to refer to the observations of the

Apex Court in Dastane vs. Dastane (supra) where in similar

facts it was held that:

"57. 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 imagine 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 ingredient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home. But intercourse in circumstances as obtain here would raise a strong inference of condonation with its dual requirement, forgiveness and restoration. That inference stands uncontradicted, the 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."

14. Thus it is evident from above and also from the

facts of the case at hand that the respondent had condoned

the acts of cruelty complained of before August 1995. The

conception of the child is thus an unflinching proof of

condonation of the acts of the offending spouse. Coming to

the second act, the 32 love letters written by the respondent

husband to the appellant, which are proved on record, are

from the period 14.11.1994 to 22.5.1995. A perusal of the said

letters shows that the respondent had no complaint from the

appellant and thus had condoned all her previous acts of

cruelty. Therefore, the cumulative effect of both the above

acts show that the respondent had condoned the cruel acts of

the appellant prior to August 1995 and therefore if the acts of

cruelty , if any as alleged by the respondent, to establish the

ground of cruelty have to be looked into pertaining to the

period only after August, 1995.

15. The acts of cruelty after August, 1995 committed

by the appellant as alleged by the respondent can be

succinctly stated as under:

 The respondent was locked by the appellant three times

in August,1995

 On the respondent extending a reciprocal invitation for

dinner to Appaswamy on 3.9.95 in Chennai, the

appellant created a scene and locked the house and the

guests had to return seeing the house locked

 On the day of Diwali, which was on 23.10.95, the

respondent was casually asked by Mr. & Mrs. Taneja (in

-laws of the brother of the respondent) to do an eye

check up on which the appellant raised hue and cry

causing embarrassment to the respondent

 That the appellant after the delivery of the child stayed

at her parents place and due to her callous attitude

towards the new born, the child got dengue on

17/19.10.96

 That the appellant refused to come back to the

matrimonial home and put a condition that only when

the house at Greater Kailash Enclave would be

transferred in the name of the appellant would she

return to the matrimonial house

 That the appellant left the matrimonial house on

28.10.96, one day before karva chauth which is an

auspicious festival of the Hindus where the wife

observes a fast for the husband

 That the appellant had refused to have sexual

intercourse with the respondent after 8.10.1996

 That the appellant filed a criminal compliant in the

Crime Against Women Cell, Nankpura against the

respondent in July, 1997

 That the appellant used filthy and abusive language for

the respondent and his family members in the telephonic

tape recorded conversation on 23.12.1996 which is

proved on record as Ex PW1/59 and PW1/60

16. The above acts of cruelty were duly proved by the

respondent in his evidence and by producing 4 other

witnesses. It is an admitted case between the parties that the

appellant did not enter the witness box to present her side of

the story. The learned trial court has also categorically

observed that the respondent was not cross examined on any

of the above mentioned acts of cruelty by the appellant. It is a

settled legal position that where the evidence of the witness is

allowed to go unchallenged with regard to any point, it may

safely be accepted as true. Here it would be pertinent to refer

to the observations of the Apex Court with regard to the

importance of cross examination in the case of Rajinder

Pershad vs. Darshana Devi (2001) 7 SCC 69 where it was

held that :

"There is an age old rule that if you dispute the correctness of the statement of a witness you must give him opportunity to explain his statement by drawing his attention to that part of it which is objected to as untrue, otherwise you cannot impeach

his credit. In State of U.P. v. Nahar Singh (dead) : 1998CriLJ2006 , a Bench of this Court (to which I was a party) stated the principle that Section 138 of the Evidence Act confers a valuable right to cross-examine a witness tendered in evidence by opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by permitting a witness to be questioned, inter alia, to test his veracity. It was observed :

The oft quoted observation of Lord Hershell, L.C. in Browne v. Dunn clearly elucidates the principle underlying those provisions. It reads thus :

"I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross- examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lord, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; arid, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play arid fair dealing with witnesses."

17. Thus as the appellant herself has neither

contradicted the alleged acts of cruelty of the respondent to

have impeached his testimony and has also chose not to enter

the witness box to dispute the correctness of the allegations

leveled by the respondent, this court would thus proceed

assuming the above stated alleged acts of cruelty as true.

18. Section 13(1)(ia) of the Hindu Marriage Act, 1955

provides for „cruelty‟ as a ground for the dissolution of

marriage. Cruelty has no where been defined in the act, and

rightly so, as it is difficult to put the concept in a strait jacket

formula. It may be physical or mental, intentional or

unintentional. In the present case, the respondent has alleged

that the acts of the appellant caused him mental cruelty.

Mental cruelty can be more harmful than physical cruelty as

sometimes even a gesture, the angry look, a sugar coated

joke, an ironic overlook may be cruel than actual beating.

Here it would be useful to refer to the judgment of the Apex

Court in the case of Vinita Saxena vs. Pankaj Pandit where

it was held that:

"23. As to what constitute the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the

court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.

24. The modern view of cruelty of one spouse to another in the eye of law has been summarised as follows in (1977) 42 DRJ 270 Halsbury Laws of England Vol.12, 3rd edition page 270:-

The general rule in all kinds of cruelty that the whole matrimonial relations must be considered and that rule is of special value when the cruelty consists not of violent acts, but of injurious reproaches, complaints, accusations of taunts. Before coming to a conclusion, the judge must consider the impact of the personality and conduct of one spouse on the mind of the other, and all incidents and quarrels between the spouses must be weighed from the point of view. In determining what constitutes cruelty, regard must be had to the circumstances of each particular case, keeping always in view the physical and mental condition of the parties, and their character and social status."

19. Hence, the Apex Court has observed in a catena of

judgments, including the above, that cruelty has to be

inferred from the facts and circumstances of each case and

what may be cruelty in one case may not be cruelty in the

other. However the benchmark to judge the conduct of the

spouse inflicting cruelty would be that it cannot be expected

of parties to live with each other anymore due to the cruel

conduct of one of the spouse. It has to be something more

than the ordinary wear and tear of married life and has to

touch a pitch of severity. The court has to be satisfied that the

relationship between the parties has deteriorated to such an

extent that it would be impossible for the parties to live with

each other. Here it would be worthwhile to refer to the

judgment of the Apex Court in the case of Naveen Kohli vs.

Neelu Kohli AIR 2006 SC 1675 where it was held that:

"56.To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

57. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before

it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent."

20. The Apex Court in the case of Jaya Ghosh vs.

Samar Ghosh (2007)4 SCC 511 analysing all the case laws

of India and other countries with regard to mental cruelty

enlisted a non exhaustive list of the instances which can be

considered as instances inflicting mental cruelty. Giving a

treatise on mental cruelty the Apex Court held that:

"72. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of 'mental cruelty' within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty.

73. Human mind is extremely complex and human behavior is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behavior in one

definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration."

21. Therefore, it would be manifest from the above

that cruelty has to be inferred from the social status,

upbringing and educational qualifications of the parties. In

the facts of the present case, the parties are highly qualified

doctors enjoying good social status. In the background of this

fact, the conduct of the appellant has to be examined in the

present case. The two main acts of cruelty are the tape

recorded conversation of the appellant and the filing of the

criminal compliant by the appellant against the respondent.

With regard to the tape recorded conversation, the learned

trial court in para 58 of the judgment has clearly observed

that the kind of language used by the appellant in her

conversation cannot be expected from a very qualified doctor

belonging to a reputed family. The learned trial court also

observed that the language used by the appellant against the

respondent constitutes an act of mental cruelty. It would be

appropriate to reproduce relevant paras of the impugned

judgment as under:

"58. I have gone through the transcription of this tape recorded conversation. From the transcription it is clear that respondent has used the word "Harmjada" for petitioner as well as his parents. She has also addressed him as "Zanvar". She has also stated that she is not interested in his patient/business. she is bent upon to ruin him. No question has been asked to the petitioner on behalf of the respondent in his cross-examination when he appeared in the witness box in this regard, no suggestion has been given to falsify it, no suggestion has been given with regard to the circumstances in which conversation has been tape recorded. Respondent has not appeared in the witness box to explain/refute the tape recorded conversation.

59. It is argued on behalf of the respondent that this tape recorded conversation cannot be relied upon because petitioner provocated the respondent with the malafide intention and ulterior motive to create evidence in his favour and put words in the month of respondent. He immediately filed the present petition after getting the conversation between the respondent and him tape recorded.

60. Parties are highly qualified. Petitioner and respondent are renowned Doctors of Delhi. Admittedly, respondent belongs to highly educated and respectable family, her two other sisters and brother-in-law are also

Doctor according to the respondent herself. Her father is a Class-I Gazetted Officer. Use of such language cannot be expected from a highly qualified Doctor belonging to a reputed family. The language shows the feeling of the respondent towards the petitioner. According to the social status and educational level of the parties, the language used by respondent against the petitioner is enough to constitute mental cruelty towards the petitioner."

22. I do not find any infirmity or illegality in the

abovesaid findings of the learned trial court. I also do not

subscribe to the argument of the counsel for the appellant

that the said tape recorded conversation was recorded by the

respondent to create an evidence in his favour as it was for

the appellant to have used decent and temperate language

not only for the respondent i.e. her husband but for his

parents as well. In any event of the matter, it was for the

appellant to have explained under what circumstances such

utterances were made by her in the said tape recorded

conversation. But since the appellant did not appear in the

witness box, therefore, adverse inference has to be drawn

against the appellant and in favour of the respondent.

23. The other act of cruelty is the filing of the criminal

complaint by the appellant against the respondent in the

Crime Against Women Cell. The argument of the counsel for

the appellant was that filing of the complaint cannot be

considered as it was not pursued by the appellant which

shows that the appellant did not want to create any

disharmony in the matrimonial relations. This argument of the

counsel for the appellant is totally devoid of any merit and

deserves outright rejection. The respondent in his testimony

deposed that he was called to the police station time and

again and was harassed by the police after filing of the said

compliant by the appellant , on which point the appellant did

not cross examine the respondent and even did not enter the

witness box to rebut the statement. Hence, the argument of

the counsel for the appellant does not appeal to

commonsensical notions that the filing of the criminal

complaint did not cause harassment to the respondent simply

because of the fact that it was not pursued by the appellant.

24. These two above acts are certainly grave acts

which were capable of causing mental cruelty to the

respondent. The other above enumerated acts, such as the

behaviour of the appellant on the auspicious days of the

Hindus like Diwali and Karva Chauth would add to causing

serious mental pain to the respondent. The refusal of the

appellant for sexual intercourse also contributes to inflicting

further cruelty on the respondent. Hence, looking into totality

of the circumstances, this court is of the clear view that the

respondent has proved cruelty on the part of the appellant as

envisaged under section 13(1) (ia) of the Hindu Marriage Act.

25. Now dealing with the other argument of the

counsel for the respondent that even though the acts of

cruelty were condoned by the respondent, but the same would

stand revived by the subsequent acts of the appellant, the

learned trial court held that even if it is presumed that the

respondent had condoned the past acts of cruelty on the part

of the appellant ,the same got revived when a false criminal

complaint was lodged by the appellant with Crime Against

Women Cell and also because of the said abusive language

used by the appellant in said tape recorded conversation.

Condonation is a bar to the filing of a petition for divorce as

envisaged under section 23(1) (b) of the act and thus if the

cruelty is condoned by the respondent, he cannot be allowed

to claim a decree of divorce. However, it is a settled principle

of law that the previous acts of cruelty will get revived when

the offending party keeps committing or repeating the acts of

cruelty towards the other spouse even after the condonation.

It was held by the House of Lords in Henderson vs.

Henderson (1944) 1 All ER 44 that condonation is subject

to the implied condition that if the spouse who has been

forgiven for the past matrimonial offences is proved to

commit a further matrimonial offence in the future, then the

past offences are revived and become available as further

ground for divorce. In the case of K.J vs. K.J AIR 1952

Nagpur 395, the Full Bench of the Nagpur Bench of the

Bombay High Court held that:

"13. We shall now consider the question whether there has been condonation in the case.

.........

..an express promise is not necessary. It is implicit in every case where the husband forgives the wife and receives her once again as his companion in life. But even though the promise may be explicit or may be implicit in the very act of forgiving, it is not to be expected that the offence would be repeated. Indeed, the law is that if the offence is repeated or anything having the semblance of

its future repetition is present, the original guilt of the erring partner is revived."

26. Hence, the law is well settled that the petitioner

would not be barred from filing a petition of divorce if the

offending spouse does not digress from her piquing conduct.

It would be useful here to refer to the celebrated

pronouncement of the Apex Court in Dastane vs. Dastane

(supra) where the law was explicitly explained as under:

"58. 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" See Words and Phrases Legally Defined (Butterworlhs) 1969 Fd., Vol I, p. 305, ("Condonation") 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 See Halsbury's Laws of England, 3rd Ed., Vol. 12, p. 3061. Condoned cruelty can therefore be revived, say, by desertion or adultery."

27. Hence, it would be manifest from above that the

condition involved in case of revival of offence after

condonation is not only that the same matrimonial offence will

not be committed but also that the condoned spouse will in

future fulfil in all respects the obligations of marriage. In the

present case it is clear that despite forgiveness and tolerance

on the part of the respondent, the appellant continued her

vicious behaviour. From her callousness and brutal remarks

about the respondent and his family members, it is clear that

her cruelty continued and the previous acts also stood revived

in the face of such a conduct. Even though the respondent by

resuming connubial relations and showing overtures of

forbearance had explicitly condoned the acts of cruelty prior

to August, 1995, but in the face of the subsequent conduct of

the appellant, the acts of cruelty would stand revived and the

respondent would be entitled to the decree of divorce.

28. Before parting with the judgment, I would like to point

out that this court found a ray of hope in this case by looking

at the amorous epistles of the respondent and considering

that the parties have a child whose future would be marred in

the operoseness of the legal battle, and sent it for mediation,

but in vain. The asset of a wholesome education broadens the

horizons and instills the virtues of tolerance, empathy and

understanding in persons and it was expected of the parties,

who are highly educated, to make peace with their past and

carve out their future together on a clean slate.

Unfortunately, the social status and the qualifications became

an anathema for the parties in which the child would bear the

brunt of clashing egos. The stark realities of matrimony stare

in the face through such cases evincing the vagaries and

vicissitudes of, once rock steady and now fragile institution

that is marriage. More often than not, in cases like the

present one, the acrimony of the spouses dims the hope of

eternity of the holy union into nothingness.

29. In the light of the above, I do not find merit in the

present appeal and the same is hereby dismissed.

JANUARY        31, 2011               KAILASH GAMBHIR, J
rkr/mg