YADURAY BANSI SADAVRATI Vs. SUNDERBAI

JUDGEMENT

(1.) Even if for a moment we were to take it that she was illtreated or beaten some time before she went on the last occasion in March 1960 she can be taken to have duly condoned the same and more so when she had gone to his place at Umred of her own accord. It was urged that under sec. 23(1)(b) of the Act any act of cruelty committed by her husband would obviously be taken as condoned and therefore that ground of cruelty cannot be considered a good ground for claiming any such relief of judicial separation. The relevant part of sec. 23 of the Act provides as under : (1) In any proceeding under this Act whether defended or not it the Court is satisfied that:- (a) ............... (b) where the ground of the petition is the ground specified in clause (f) of sub- sec. (1) of sec. 10 or in clause (i) of sub-sec. (1) of sec. 13 the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of or where the ground of the petitioner is cruelty the petitioner has not in any manner condoned the cruelty and (c) ............. (d) ............. (e) ............. then and in such a case but not otherwise the Court shall decree such relief accordingly

(2.) A plain reading of clause (b) of sec. 23(1) of the Act shows that before the Court is satisfied for granting any such relief in case of a ground of cruelty-it must not have been condoned by the petitioner-before filing the petition. The present petition is based on a subsequent incident which took place on her third stay at Umred in 1961 and that is not said to have been condoned. But the previous two incidents can easily be taken as her having condoned-if they were to be held as in any way established and consequently they cannot be ordinarily taken into account. But it was pointed out by Mr. Bhatt the learned advocate for the respondent by a reference to a case of Stones v. Stones I.L.R. 62 Cal p. 541 where it was held that a matrimonial offence subsequent to the condonation of a prior matrimonial offence operates to revive the condoned offence enabling the aggrieved party to rely thereon as a ground for divorce. That was a case for divorce on the ground of adultery. Another case relied upto by him is one of Kafton v. Kafton All England Law Reports Vol. I p. 435 where it was held that cruelty which has been condoned may be revived as a matrimonial offence by subsequent desertion and for this purpose desertion for 3 years need not be established. This case was further relied upon by Mr. Bhatt to show that the requirement by the Court of corroboration where cruelty is aleged is merely a matter of practice and not a rule of law and it has never been decided that the Court is not entitled in a proper case where it is no doubt where the truth lies to act on the uncorroborated testimony of the petitioner. Leaving aside for the time being as to the requirement of any corroboration to the petitioners evidence it can be said that even if any act of cruelty has been condoned by the wife that could be revived as a around if she is later on treated with cruelty and or deserted. But that has to be so only for showing that he was so behaving before and that he has continued to be of the same type provided the petitioner is able to establish by reliable and sufficient evidence the acts of cruelty on the part of her husband which obliged her to leave the place and then file the petition for judicial separation. In other words in order to strengthen or add justification to her being obliged to live separate from her husband on ground of cruelty and desertion previous instances of similar character may well be relevant but it cannot serve as good ground for obtaining judicial separation unless sufficient and reliable evidence with regard to the last acts of illtreatment and cruelty or/and desertion which led her to file the petition are established in the case. In the first case I am not satisfied with her evidence alone in that direction and even if any such acts were committed they stood condoned by her as soon as she went to her husbands house of her own accord on the last occasion.

(3.) It is therefore necessary for her to establish the matrimonial offence such as that of cruelty on the part of her husband so as to cause reasonable apprehension in her mind that it is harmful and injurious to live with her husband. The onus of proof of any such matrimonial offence is on the person who alleges the same namely the petitioner in the present case. The parties to such a petition are obviously interested in the relief that one claims against the other and each side is likely therefore to either exaggerate or even go beyond what might have actually happened for ordinarily solemn marriage ties cannot easily be disrupted unless it has become highly unbearable for one to stay with the other. In a case of this character therefore while rule of law may not require corroboration in the sense that even the testimony of a single person such as even the party in a proceeding can be acted upon if it inspires confidence and the reliability that it should but as pointed cut from the decision in the case of Kafton v. Kafton as a matter of practice Court would ordinarily require some corroboration. In facts if we refer to the judgment of Tucker L. J. it has been pointed out that there may be many cases in which it would be unsafe to act upon without corroboration though no doubt the Court would be entitled to act upon without corroboration in a proper case where there is no doubt where the truth lies. Then it is observed as under:-