SUSEELA Vs. GOPALAKRISHNA PRABHU MOHANDAS PRABHU

JUDGEMENT

(1.) WE have before us, a tragic story of an immature indiscretion. A boy and a girl belonging to respectable families brought together in matrimonial alliance, living a happy life for sometime after marriage separated on account of an indiscreet conduct of the girl after marriage. Parties belong to the community known as Gowdasaraswatha Brahmins. The marriage was held at Payyannur on 3 21968. Thereafter the couple moved over to Quilon where the husband was employed as Assistant Manager of the Syndicate bank. While so in April 1968 the husband came to read a letter written by his wife to one Madhavan Nambiyar at Madurai. This letter was given by the wife to one Sarada, a servant maid, for being posted. It was an inland cover. The servant-maid's curiosity got the better of her loyalty and so she seems to have opened the letter and read and enjoyed it. It is the husband's case that she gave the letter to him mentioning that getting suspicious of the contents of the letter she opened it and read it. The letter was dated 30 3 68 and was addressed to Sri Madhavan Nambiyar. This Nambiyar, it has turned out in the evidence, was one known to the wife-respondent when she was at Payyannur and he too was staying there. The letter, Ext. P1 described Nambiyar as respondent's first husband really meaning that he was her first lover. The petitioner's case is that he was shocked and stunned by the letter of the respondent who even before she was out of the thrills of the honeymoon had chosen to be so deceptive. The respondent's father at Payyannur was contacted by telegram to go over to Quilon immediately. The father did not come, but her brother, sister and two other relatives came to Quilon in a car on 16th April 1968 and the petitioner insisted that the respondent must be taken away with them. They were shown the Inland letter she had written and thereafter they took her away with them. Though the respondent seems to have written letters to the petitioner thereafter admitting the genuineness of Ext. P1 he was not in a position to forget the conduct of his wife. According to him he could not think of reconciling with the wife for the rest of his life, a wife who treated another as her husband and evinced subsisting affection towards him. The conduct of the wife is characterised as cruel and deceitful. He would say that such a girl would have no compunction or reluctance to commit any act of cruelty or deception on him thereafter. According to him he even apprehended that if she lived with him his life would be in danger. Joint residence as husband and wife, according to him, would only lead to further discord and resultant calamities. Therefore he seeks judicial separation. The wife has a different story to tell. Her husband, according to her, had never behaved normally towards her. He is said to have embarrassed her by asking her annoying, if not insinuating, questions all through the honeymoon days. He was, according to her, a doubting Tom suspicious of anything and everything that she did. Ext. P1, she would say, was quite an innocuous letter attempted to be deliberately distorted and misread. She had, according to her, no husband other than the petitioner and she had exhibited affection to

(2.) IF the letter Ext. P1 was intended to be posted to the addressee, that discloses certain facts. It mentions that the said Madhavan nambiyar was the first to touch the respondent's body which suggests that they were in intimate relations. She cherishes the brassieres given by'madhavettan' to her more than possibly all that her husband had got for her. She evinces a desire to meet him, she evinces to carry on correspondence with him and seeks that Madhavettan should not forget her. Possibly it could be said that the letter evidences the continued desire on the part of the respondent to be on the same intimate terms as she was with him earlier.

(3.) IN the English Courts cruelty had been defined as wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental or such conduct as to give reasonable apprehension of such danger. Reference may be made in this context to Russell v. Russell (1897 A. C. 395), Gollins v. Gollins (1964 A. C. 644)'and Williams v. Williams (1964 A. C. 698 ). Tolstoy, in his Treatise on Divorce analyses the tests to satisfy cruelty. This is stated thus:"since Gollins v. Gollins and Williams v. Williams there are two tests which must be satisfied for cruelty to be established: first, is the conduct complained of sufficiently grave and weighty to warrant the description of being cruel? and, secondly, has the conduct caused injury to health or reasonable apprehension of such injury? Only the first test is relevant for establishing unreasonable behaviour which falls within S. 2 (1) (b ). " As the law stands in England today, it may not be necessary to establish cruelty but it is sufficient to show the conduct of the other spouse to be such that the petitioner cannot be reasonably be expected to live with that spouse. The question whether adultery and attempt at adultery would be a sufficient ground is considered,in this context in Rayden's "law and Practice in Divorce and Family Matters", 1971, 11th Edn. at page 207: "lesser sexual matters, including unsuccessful attempts at adultery or the like and the making of false allegations in regard to sexual matters, may equally justify the petitioners allegation that he or she cannot reasonably be expected to live with the other spouse".