( 1 ) THIS Appeal arises out of the wifes petition under the Hindu Marriage Act for divorce on the ground of cruelty, physical as well as mental. The husband does not seem to be interested in contesting this Appeal. He has made it a point to remain absent consistently in spite of repeated notices from this Court.

( 2 ) THE petition for divorce was filed by the appellant/wife (hereinafter, the petitioner for divorce on the ground of cruelty allegedly practised by her husband (the respondent) against her. In her petition, she has given various instances of physical cruelty as well as mental cruelty. In defence to the petition, the respondent filed his written statement and in Para 2 of the written statement he made a thoroughly unwarranted allegation of adultery on the part of the petitioner with one Shankar Balaji Dubekar. This is what he has stated in said Para 2 :-

"without prejudice to what is stated above the respondent stated that the petitioner herself in guilty of adultery with Shankar Balaji Dubekar (40) as the petitioner was absconding with the said Shankar Balaji Dubekar in the Ist week of Aug. , 1980 when on 5th Aug. , 1980, the petitioner was arrested and Rs. 15,000/- were recovered from the petitioner and the said Shankar Balaji Dubekar when they were staying together for allegedly accepting money to transfer a liquor licence, to Pune in favour of one Pandurang Salunke. The respondent states that the said affair was published in the daily newspaper evening news on 8th Aug. , 1980), at Bombay. The respondent states that the said matter is pending in the Esplanade Court, the case No. being case 337/80. The aforesaid contentions are without prejudice to each other and foregoing averments. "

I have mentioned above that the allegations contained in the above para of the written statement are thoroughly unwarranted. I will presently mention the reason why I say that they are unwarranted and I would also point out the legal effect of the same.

( 3 ) THE respondent also denied the various allegations of cruelty made by the petitioner against him and on these pleadings issues were framed by the learned Judge and the parties went to trial. The petitioner examined only herself. The respondent examined himself and also examined two witnesses; Otavnekar and Chonkar. On the basis of the evidence, arguments were advanced before the learned Judge and the learned Judge was satisfied that so far as the allegations as regards the various acts of cruelty till the date of the petition were concerned, they were not proved by the petitioner. However, an additional argument was advanced before him, viz. the allegations contained in Para 2 of the written statement filed by the respondent, set out above, Themselves amounted to grave mental cruelty on the part of the respondent against the petitioner/wife. Reliance in that behalf was placed on the judgement of the learned single Judge (Vaidya. J.) of this Court reported in AIR 1976 Bom 212 [LQ/BomHC/1975/297] , Smt. Sumanbai v. Anandrao Onkar. The learned Judge, however, relied upon another judgement of another learned single Judge (R. A. Jahagirdar, J.) reported in 1980 Mah LJ 391, Madanlal Sharma v. Smt. Santosh Sharma as also upon the judgement of the Delhi High Court reported in AIR 1982 Del 107 [LQ/DelHC/1981/184] , Smt. Pushpa Rani v. Krishan Lal and held that even though grave allegations of adultery were made by the respondent/husband against the petitioner/wife in the written statement which could be regarded as one of the forms of mental cruelty, still there was nothing in the evidence of the petitioner to show that my agony of mental character was suffered by her on account of those allegations. The learned Judge seems to have taken the view that those allegations were taken by the petitioner wife in her strides, or that she had not taken much serious note of them and that, hence, no serious note of the same need be taken by the Court as well. Taking this view of the matter, the learned Judge dismissed the appellants petition without order as to costs.

( 4 ) IN this Appeal, the respondent remained absent throughout. In view of the serious allegations made by him against his wife in Para 2 of his written statement. 1 wondered whether he was really interested in keeping himself tied down, hand and foot, to the matrimonial alliance. The learned Advocate for the appellant was therefore, directed to give notice to him to remain present in the Court. Even then, he remained absent. Ultimately, by my order dt. 5-11-1986, I directed the office to issue notice against him requiring his personal presence in the Court. In spite of this notice issued by the office on the time date. viz. 5-11-1986, the respondent has not cared to appear in this Court at all. I am, therefore, required to decide this appeal without hearing the view point of the respondent/husband.

( 5 ) THE allegations of cruelty, mental as well as physical, relate to two periods :- (a) the cruelty allegedly practised before the filing of the petition, mental as well as physical; and (b) cruelty practised upon or after the filing of the petition. The learned Judge has examined the evidence given by the petitioner/wife and has held that it is difficult to hold the allegations of cruelty before the petition to be proved. The learned Judge has also held that even assuming that some of the allegations have been proved, still the fact that the petitioner/wife had resumed normal matrimonial relations with her husband even after those various instances of cruelty amounted to condonation of those acts of cruelty by the petitioner/wife. In have examined the evidence given by the parties on those points and I have also gone through the judgement of the learned Judge in that behalf. I am not sure that the learned Judges finding on all the points could be upheld although I am satisfied that his findings on must of the points will have to be accepted. Moreover, there is a good deal of substance in the learned Judges view that the petitioner/wife must be deemed to have condoned the various acts of cruelly, mental and physical, meted out by her husband. However, I do not wish to examine this aspect of the petitioners evidence any further, because, to my mind, this appeal must succeed on the ground that the allegations made by the respondent/husband in para 2 of the written statement are quite wanton and unwarranted and in the eyes of law inference must be raised that such allegations are bound to cause grave mental torture to the female spouse and hence the petition for divorce is capable of being allowed on that ground by itself.

( 6 ) I have mentioned that the allegations made in the written statement are thoroughly wanton and unwarranted. Let me explain why I say so. In the instant case, the petition is filed by the wife for divorce on the ground of cruelty on the part of her husband. The defence to such petition cannot be that the petitioner/wife is living an adulterous conduct. In this connection, I am assuming for the moment that the allegation made by the husband in the written statement has some foundation in truth, I hasten to add that the evidence on record justifies no such inference. All the same, I am prepared to assume that the allegation is not without foundation, question is as to whether it has any relevance. If the husband had infact practised cruelty against the wife, the fact that the wife has been guilt of adulterous conduct would not belittle or nullify the effect of cruelty practised by the husband. If, on the other hand, the allegation of cruelty made by the wife are not proved, her petition for divorce will have to be dismissed even if she was a paragon of virtue. this is the legal position and in spite of this position, for no rhyme or reason as it were, the husband had come out before the Court making these unwarranted allegations against his wife. He has mentioned that his wife was arrested for some reason, it turns out that a bailable warrant was issued against her; the bail was given by her and ultimately, in the criminal case, she had been discharged. No serious attempt is made by the respondent/husband even to make good the allegation. In these circumstances, it will have to be held that the allegations are unfounded.

( 7 ) QUESTION then arises as to whether such allegations, unfounded as they turn out to be, would not result in the mental agony of the gravest character to the wife. No doubt this form of mental agony is not the subject-matter of the pleadings. No reference to that has been made in the petition. But from the very nature of things, no reference to the same could have been made in the petition, because this cruelty is the reaction to the petition. No doubt it could have been open for the petitioner to amend the petition and incorporate this as an additional instance of cruelty for claiming divorce from her husband. But after all, these are matters of legal advice. The petitioner, who is evidently a laywoman, could not have understood these requirements of the procedural law. If there is any remissness on this point, it is on the part of her Advocate. I do not see any reason why the petitioner/wife should be visited with the punishment on account of the remissness of her Advocate. Moreover, it is not as if that the amendment of the petition is an absolute imperative in such matter. The fact that the respondent/husband has made the above mentioned statement in his written statement is an admitted fact, hence if need not be considered to be very much imperative to incorporate the same in the petition by way of amendment. All that the Court is required to see is as to whether mental torture and cruelty has resulted to the petitioner/wife by virtue of such wanton allegations or not. Looking at the nature of evidence led by the parties, I am of the opinion that this is a case where the Court must raise an inference of torture and mental agony to the wife by virtue of these wanton and unwarranted allegations. To my mind, it would have been upon for the husband to vindicate those allegations. But he has completely failed to do so. It may be that the wife has not stated in so many words in her pleadings that any mental agony was caused to her by virtue of those allegations. But in these matters, the Court has to go by the common experience of the Society and human probabilities.

( 8 ) TO my mind, reliance placed by the learned Judge on the two authorities, of this Court and the Delhi High Court, is not quite satisfying. In both those cases, the position was that it was the wife who had made allegations against the husband of adultery and it was clear from the evidence on record that the husband had taken those allegations in his strides. In Madanlal Sharma v. Smt. Santosh Sharma, (1980 Mah LJ 391 ). The position was that the wife had indulged in making allegations of immorality against her husband in quite an absence language. But after appreciation of the entire evidence, the Court found that the husband had not taken the allegations very seriously at all. In fact that was the case of condonation by the husband of such acts of cruelty. In these circumstances, it was rightly observed by the learned Judge, with great respect. that those allegations of immorality could not legitimately found a basis for divorce cm the ground of cruelty. The Court was required to look at the conduct of the husband when he was at the receiving end of such allegation and the Court found that the husband had not taken them very seriously at all and had not allowed his mental equilibrium to be perturbed by those allegations. Ultimately, it turned upon the evidence led by the husband and the question was closely connected with the question of condonation by him of those acts assuming that those constituted a cruelty. The said decision relied upon by the learned Judge is, therefore, clearly distinguishable.

( 9 ) THE next decision of the Delhi High Court is similarly distinguishable. Even in that case it was the husband against whom the wife had made allegation of adultery. The petition in that case was filed by the husband for divorce on the ground of cruelty and desertion. The facts of the case were somewhat peculiar. The petitioner/husband and the respondent/wife in that case were married in 1974 and were living in the house of and along with the family of one Juneja and his wife Bindra Devi. This Hans Raj Juneja and Bindra Devi Juneja, it was alleged, were treated by the husband as his parents. The wife, however, suspected that her husband was having immoral intimacy with said Bindra Devi. According to the husband, there were constant quarrels between himself and his wife on this account and in that connection his wife had also tried to commit suicide. In view of these allegations and acts of cruelty, the husband had filed the petition for divorce after his wife left the matrimonial home. The grounds of divorce were cruelty and desertion. In reply to the petition, the wife repeated the allegation against her husband as regards his relation with Bindra Devi. But it must be noted that those allegations were made in the context of her justification to stay away from her husband. According to the wife, her husband was in the habit of dancing attendance upon said Bindra Devi and by doing so it caused immense humiliation to his wife. These allegations appear to have been repeated also in the evidence. It was in the context of these facts and evidence that the Delhi High Court was required to examine the question as to whether these allegations made in the written statement and in the evidence would not give cause for divorce to the petitioner/husband on the ground of mental cruelty. While doing so, the Court examined the husbands evidence and found that even though the allegations had been made against him about immorality and adulterous conduct before the filing of the petition, not one word was stated by the husband in his evidence about the mental torture that was caused to him by virtue of the allegations. In the context of the facts and the evidence in that case, the Delhi High Court came to the conclusion that such facts did not necessarily give rise to the inference of mental agony and mental torture. The question is whether that decision is applicable on all fours to the facts of the present case.

( 10 ) AS stated above, while discussing the earlier decision, it can be readily seen that the Delhi Court had found that the husband had taken the entire matter in his strides. The Court also found justification for the wife to make these allegations, because she had to justify her act of staying apart. The Court found some justification for her staying apart and it was em that account that the appeal was allowed by the High Court and the husbands petition for divorce was dismissed by the Court. As pointed out above, in the instant case, the allegations of adultery are thoroughly unwarranted. They do not advance the husbands case an inch further, whether they are proved or not. That apart, no serious attempt is made to vindicate those allegations.

( 11 ) COMING to the question as to whether hose allegations must have caused mental agony to the wife or not, it could be readily seen that the petitioner wife has been consistently evincing her reaction to these allegations. In the petition she has stated in so many words that her husband has been quite unjustifiably suspicious about her mural character. The averments made in the petition leave no room for doubt that she was very much agonised by these allegations and she has asked for divorce on account of the mental cruelty resulting from those allegations. But as if those allegations were not enough, the respondent/husband had chosen to heap further allegation of adultery against his wife for no rhyme or reason, unmindful of the question as to whether those allegations have any relevance to the questions involved in this petition or not. In such circumstances, we have to see the normal reaction of a Hindu wife. It must be borne in mind that the reaction of the women-folk to such allegations is not the same as that of the men. Till of late, the Hindus were allowed to marry as many wives as they chose and that was considered to be quite an unexceptionable thing. That was not the position so far as the wives were concerned. The husband having a mistress is considered in some quarters to be the sign of his virility and capability. The wife having extra conjugal relation is condemned by the Society as a wanton thing. In case of the husband, the Society looks upon them permissibly whereas in the case of the wife, it is looked upon with askance. The result is that these allegations give rise to agonies in the mind of women folk in general, exception apart, whereas in the case of the husband this need not necessarily be so. To my mind, the Courts have got to be alive to these facts of life. I see no reason why Court should not take judicial notice of it.

( 12 ) IN this view of the matter, to my mind, the judgement of this Court (Vaidya, J.) reported in AIR 1976 Bom 212 [LQ/BomHC/1975/297] , must be deemed to be holding the field. In that case the learned Judge has held that there can be no more insulting injury to the wife than her own husband doubting her chastity. The mental cruelty resulting from such insult is a matter of judicial inference and I see no reason why that should not form the basis for a decree for divorce. This is necessary with a view to avoid multiplicity of proceedings.

( 13 ) THE Appeal is, therefore, allowed. The decree passed by the lower Court is set aside and the petition for divorce is decreed and the marriage between the petitioner and the respondent is hereby dissolved by a decree for dissolution of marriage. However, in the circumstances of the case, there shall be no order as to costs so far as this Appeal is concerned. However, nothing in this order will affect my earlier order dt. 5-11-1986 directing the respondent/husband to pay Rs. 350/- to the petitioner wife as that days costs. Appeal allowed.