V.D. Misra, J.
(1) This Letters Patent Appeal by the husband is directed against the judgment of a single Judge of this Court upholding the order of the trial court dismissing the petition of the appellant for judicial separation.
(2) We will not repeat all the facts which have been given in detail by the learned single Judge. The material facts are these. The parties, who are residents of Delhi, were married on December 2, 1965. They belong to middle class society, A daughter was born to them on January 20, 1967. It was followed by some quarrels. The wife with the child was sent to her parents' home in October, 1967. She had to live there for a year before joining her husband again. On April 29, 1969 the wife had an abortion. On July 23, 1969 she had to be taken to neurology department of All India Institute of Medical Sciences (AIIMS). For about a year she was all right. She fell sick again in June, 1970 and was sent to her parents' home on June 9, 1970. She was once more taken to Aiims on June Ii, 1970. On July 14, 1970 she was taken by her father to hospital for Mental Diseases at Shahdara. Dr. Bhushan found her suffering from schizophrenia. She was admitted in the hospital. Electric Current Therapy (E.C.T.) was given on various days in addition to other treatment. She was also treated for epilepsy. After 12 days she was discharged from the hospital on July 26, 1970. Thereafter, she remained under treatment till August 31, 1970 as an outdoor patient. By September/ October, 1970 she again started living with her husband.
(3) The husband, who is an adopted son, was living with his adoptive parents in a lane in old Delhi. They never engaged a servant. All the household chores were always done by the wife. In early 1971 the husband rented a separate house in Shahdara and shifted there with the wife. Their daughter was kept back by the husband's parents. As usual, the husband did not employ any servant. The wife did all the household work. In March, 1971 she had a second abortion. On August 26, 1971 the husband took the wife to hospital for Mental Diseases where she was given an E.C.T. On September 15, 1971 the husband finally left her at her parents' house. On May 4, 1972 the husband filed an application for judicial separation under section 10(l)(b) of the Hindu Marriage Act (referred to as 'the Act').
(4) It is contended by Mr. Madan Bhatia. learned counsel for the husband, that the learned single Judge erred in not allowing the husband to amend his petition and seek divorce under section 13(1)(iii) of the Act as amended by Act No. 68 of 1976.
(5) During the pendency of the appeal before the single Judge, the Hindu Marriage Act, 1955 was amended by the Marriage Laws (Amendment) Act, 1976 (68 of 1976). Vital changes were made in the Act. Grounds of Judicial separation and divorce were liberalised. We will refer only to those changes which are relevant for our purpose. Section 10 of the Act provided for judicial separation on six grounds. Ground (b), relating to cruelty, was in the following terms:
'(B)has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party;'
Ground (e) relating to the unsoundness of mind of the respondent was:
'(E)has been continuously of unsound mind for a period of not less than two years immediately preceding the presentation of the petition;'
It may be noticed that whereas before amendment the grounds for judicial separation were different from the grounds on which a divorce could be prayed for, the amendment removed this difference. The relevant portion of amended section 10 reads :
'10(1)Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.'
Section 13 was also materially changed. A new ground of divorce was introduced as clause (ia) in sub-section (1) of section 13. It reads:
'(IA)has, after the solemnization of the marriage, treated the petitioner with cruelty;'
The amendment also replaced the old clause (iii) of section 13(1) by a new clause. The old clause was :
'(III)has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition;'
(6) The amended clause (iii) is in the following terms:
'(III)has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanationn. In this clause, (a) the expression 'mental disorder' means mental illness arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia ; (b) the expression 'psychopathic disorder' means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatments.'
(7) Section 39 of the amending Act made a special provision for the pending cases.
(8) During the pendency of the first appeal the husband applied for amendment of his petition for judicial separation to convert it into a petition for a decree of divorce incorporating the following paragraph :
'THATthe facts in the petition clearly show that the respondent has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. The prayer clause was sought to be amended thus :
'THATthe petitioner, thereforee, prays for a decree for divorce or alternatively for a decree for judicial separation against the respondent and for any other or further relief which this Hon'ble Court deems fit in the circumstances of the case.'
This application was contested by the wife. It was contended that the proposed amendment of the petition will change the nature of the case. The learned single Judge allowed the amendment 'only to the extent of permitting the petitioner to amend the petition seeking a decree of divorce on the question of mental cruelty. Application in respect of invoking section 13(l)(iii) is rejected.'
(9) Mr. Bhatia contends that under section 39 of the amending Act the Court was bound to allow the amendment asked for by the husband.
(10) At this stage section 39 may be read :
39.(1) All petitions and proceedings in causes and matters matrimonial which arc pending in any court at the commencement of the Marriage Laws (Amendment) Act. 1976, shall be dealt with and decided by such court. (b) the expression 'psychopathic disorder' means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatments.' (i) if it is a petition or proceeding under the Hindu Marriage Act, then so far as may be. as if it had been originally instituted therein under the Hindu Marriage Act, as amended by this Act; (ii) if it is a petition or proceeding under the Special Marriage Act, then so far as may be, as if it had been originally instituted therein under the Special Marriage Act, as amended by this Act. (2) In every petition or proceeding to which sub-section (1) applies, the court in which the petition or proceeding is pending shall give an opportunity to the parties to amend the pleadings, in so far as such amendment is necessary to give effect to the provisions of sub-section (1), within such time as it may allow in this behalf and any such amendment may include an amendment for conversion of a petition or proceeding for judicial separation into a petition or proceeding, as the case may be, for divorce.'
it will be noticed that it is sub-section (2) which enjoins upon the court to give an opportunity for amendment of the pleadings. The right to amend the pleadings is, however, restricted. Only such amendment of the pleadings is to be allowed which 'in so far as such amendment is necessary to give effect to the provisions of sub-section (1).' The provisions of sub-section (1) postulate that the pending petitions and proceedings arc to be dealt with and decided by the court, 'so far as may be, as if it had been originally instituted therein under the Hindu Marriage Act, as amended by this Act.' [clause (i)]. The object of section 39 was simply this. The amending Act having done away with the difference in the grounds for judicial separation and for divorce, having introduced new grounds of divorce, some of which were earlier available for judicial separation, only, and having liberalised the grounds of divorce the consequential amendments in the petitions should be allowed to be made to enable persons to take full advantage of the amendment. Where the matters were pending before the appellate courts, it was no use forcing the parties to initiate fresh proceedings on practically the same ground about which the evidence of the parties was already before the court. This was in the fitness of things to expeditiously dispose of matrimonial matters. For example, as has happened in this case, the ground of cruelty envisaged under clause (b) of sub-section (1) of section 10 of the Act has, by the amendment, been made a ground for divorce. In these circumstances the amendment of the petition seeking divorce on the ground of cruelty was only consequential and the benefit of the amendment was given to the petitioner. Another example which can readily be given is the ground of adultery. Whereas previously 'sexual inter course with any person other than his or her spouse' gave a right only to ask for judicial separation, and only 'living in adultery' [section 13(1)(i) of the unamended section] gave a right to pray for divorce, by the amendment the erstwhile ground of judicial separation has been made a ground for divorce also. In other words, the object of section 39 seems to be that amendment must be allowed where the amendment does not result in setting up a new case which the opposite party had no occasion to meet.
(11) In the instant case if the amendment asked for is to be allowed, it is conceded by Mr. Bhatia, the parties will be entitled to lead fresh evidence and the matter must be remitted to the trial court for fresh evidence and decision. It is true that in the pleadings the husband had alleged that the wife was suffering from schizophrenia and so he had the apprehension that it would be harmful or injurious for him to live with the wife. But as we read the new clause (iii) of section 13(1) we notice that though by Explanationn (a) the expression 'mental disorder' has been defined to include schizophrenia, it does not follow that the other requirements of this clause are ipso facto satisfied. This clause takes note of the development of medical science relating to the illness of the mind. In order to properly define the conditions of the mind, the medical science has done away with the vague terms such as insanity, lunacy, idiocy etc., and has coined a new expression 'mental disorder'. It has been found that it is not each and every kind of disorder of the mind which may make a man reasonably unfit to carry out his various obligations and look after his interests. Some mental disorders have now become curable. According to the Report of the Royal Commission, on whose findings the Mental Health Act, 1959, of England is based, 'Disorders of the mind are illnesses which need medical treatment. Great progress has been made during the present century in developing methods of treatment for many forms of mental disorder. Even when the disorder cannot be completely cured, it is often possible for the patient to live a happy and useful life in spite of some continuing mental weakness. This is now recognized by many of the general public as well as by those who are directly concerned with the care of patients and most people are coming to regard mental illness and disability in much the same way as physical illness and disability.' The legislature in its wisdom, thereforee, decided that a person, who once suffered from a mental disorder which stood cured, should not be made to suffer in matrimonial affairs. This new clause (iii) thus made it a condition precedent that a person should be suffering 'continuously or intermittently' from mental disorder. Only that kind of mental,.disorder which was of such a kind and the repondent was suffering from. it to such an extent that the petitioner cannot reasonably be expected to live with the respondent was made a ground of divorce. In this view of the matter the amendment asked for was rightly disallowed since it was not necessary to give effect to the provisions of sub-section (1) of section 39 of the Amending Act.
(12) We will now deal wit hthe individual incidents on which the petition is based. The first incident is stated to be of June 8, 1970. It is alleged that on that date the wife tried to strangulate her child who was snatched away from her with great difficulty. Thereafter, the wife is alleged to have given a jharoo (broom) beating to her mother-in-law and tried to commit suicide by strangulating herself with the sari. In order to prove this incident the husband examined Jaswant Sharma Public Witness 3. He is a supervisor in post office/R.M.S. According to his version the incident took place at 11 a.m. and the only persons present at that time were the wife and her mother-in-law. This witness is neither a relation nor a neighbour though he is a resident of the same locality. He is, however, contradicted in material particulars by the husband who was examined as Public Witness 5. According to the husband, the incident took place at about 7 a.m. The difference in time is material. June 8, 1970 was admittedly a working day. The husband was not on leave and had attended the office. There is nothing on record to show that Jaswant Sharma did not attend office during the normal working hours. In order to show his presence the huband gave the time of incident as 7 a.m. However, the mother-in-law, who is alleged to have got jharoo beting from the wife, has not been examined She was the person who had to spend her full time with the wife under the same roof. Moreover, Jaswant Sharma' does not even talk of any attempt having been made by the wife to commit suicide by strangulating herself. He does not even talk of the wife trying to strangulate the child. He only states that the wife 'scratched with nails the child-daughter, and, when her mother-in-law intervened, she was given blows with broom-stick.' In order to reconcile the two irreconcilable statements Mr. Bhatia, learned counsel for the husband, put forth an ingenuous Explanationn. He contended that in fact two incidents of the same nature took place on that day. The first incident was at 7 A.M. and the second incident was at 11 A.M. If that were so, we fail to understand why this could not have been pleaded. There is no indication in the pleadings that there were two incidents. On the other hand, it is absolutely clear from the pleding that the incident was one. We have no doubt that the whole incident is a figment of imagination of the husband. The courts have rightly disbelieved the witnesses.
(13) It has been alleged by the husband that the wife tried to kill her child several times due to schizophrenia'. There is not even an iota of evidence about it on record. It may be remembered that the child admittedly remained with the wife between October, 1967 and October 1968 at the house of wife's father. Never was there any trouble.
(14) The third allegation relates to the wife trying to strangulate the husband on the night intervening September 14/15, 1971 when he was sleeping. It may be recalled: that the wife and the husband had again started living together near about Diwali of 1970. The husband says that it was from September/October, 1970. They had rented a house in Shahdara in the beginning of 1971. Their only child was kept back by the patents of the husband in their house in Delhi city. In March, 1971 the wife suffered another abortion. From that day till August, 1971 no incident is alleged to have taken place. Of course, general allegations have been made by the husband that she could not carry out 'essential domestic activities as attending to her child and cooking. Most often than not the petitioner had per force to go without food since the meals 'cooked' by the respondent were uneatable because of either overspicing or undercooking and general uncleanliness which made them serious health hazards'. Such allegations can be made by any husband unhappy with his wife. This is nothing more than ordinary wear and tear of married life. We cannot lose sight of the fact that all along when the wife was living with her in-laws in Delhi city or was living alone with the husband at Shahdara never was any servant employed by the husband. There is nothing on record to show that any kind of domestic help was made available to the wife. It is true that it is the religious duty of a Hindu wife to serve her husband and even the members of his family. But definitely the religion does not reduce a wife to the status of a slave who should never complain about the treatment which may be meted out to her. Various misunderstandings and squabbles leading to serious disputes after marriage, especially when a wife has to live with her husband and other members, of his family under one roof, are not uncommon. The wife having been brought up in a different atmosphere is expected, under our present system, to adjust quickly to the environments of her in-laws and to obey commands of all and sundry in that house. Unfortunately the expected adjustment is only a one-way street. It is high time that members of husband's family realise that they should also adjust themselves to the changed circumstances and not to give an impression to the new member of the family (wife) that she is an outsider. We are also not unmindful of the fact that in the Hindu society, even to-day, when the first child turns out to be female, it is a shock to the husband and his parents. In the instant case the husband, as already stated, was an adopted son and the first child delievered by the wife turned out to be a female. All the troubles, as is evident from the record, started after the birth of a daughter. After about 8 months of the birth the wife and the child were shunted out of the house and they had to remain with the wife's parents far a year. Never did the husband pay even a courtesy visit to see his wife and child. After this long estrangement when the wife came back to live with the husband, she suffered an abortion in April, 1969. Diseases of nerves and of mind started thereafter. It is common knowledge that when a woman conceives certain biological changes take place which affect her temperament and mental condition. Her physical condition also changes. During this period she requires more sympathetic and helpful environments. Every abortion, which is not sought by a woman, must be leaving her mentally shattered. In these circumstances the general allegations of the husband have rightly been rejected by the learned single Judge and the trial court.
(15) As regards the incident of the night of September 14/15, 1971 it is only the word of the husband against the wife. It is true that what happens in a bedroom at night is not expected to be known to others. But then in such a situation any allegation can easily be leveled by one spouse against the other. The allegation may be true or may be absolutely unfounded. Such allegations thereforee, need close scrutiny. In the court the husband went to the extent of alleging that the wife was in the habit of abusing and using filthy language against him, the tenants and other neighbours in Shahdara. One day she is alleged to have given a severe beating to the niece of a tenant. However, not a single person was examined to corroborate him. According to the husband 'I went to her father who took her to his house' on September 15, 1971. Now the wife's father has appeared as a witness. He was examined as R.W. 2. He deposed that in September, 1971 his daughter was finally turned out from the house by the husband and the witness was told that she would not be kept in their house. No suggestion was made to him in cross-examination that the husband had informed him about the wife's attempt to strangulate the husband at night. On the other hand, the father categorically stated that he used to visit the daughter at Shahdara about twice every month and his daughter used to complain about the child having been kept away from her. If the wife had made any attempt to strangulate the husband as alleged by him, there was no reason for the husband not to complain about it to his father-in-law. In view of their past relations the husband would have raised a hue and cry about it. Evidently nothing of the sort was done. We have no hestiation in agreeing with the learned single Judge and the trial court that no such incident took place.
(16) It is contended by Mr. Bhatia that the mere fact of the wife having suffered from schizophrenia amounts to treating the husband with cruelty. Now, it is no doubt true that an actual or presumed intention to injure is not an essential element in cruelty, and the question, in a cruelty case, is whether the conduct by this man to this woman, or vice versa, is cruelty (see Gollins v. Gollins (1963) 2 All E.R. 966. This is a question of fact in each case. Schizophrenia is one of the kinds of mental disorder. The name 'schizophrenia' was coined in 1911 (see Pocket Medical Dictionary, Twelfth Edition published by the English Language Book Society). There are four types of schizophrenia. The first type is known as 'schizophrenia simplex', where the patient is dull, withdrawn, solitary and inactive. Other types are Catatonic, Paranoid and Hebaphrenia. It is, thereforee, not correct to say that simply because the respondent has suffered from schizophrenia the respondent has 'treated the petitioner with cruelty' in terms of clause (ia) of sub-section (1) of section 13 of the amended Act.
(17) It is contended by Mr. C. L. Joseph, learned counsel for the wife, that even if there was any cruelty it was condoned by the husband. Mr. Bhatia, on the other hand, argues that this plea was never taken by the wife. It is now well-settled that even if condensation is not pleaded it is the duty of the court under Section 23(l)(b) of the Act to find whether the cruelty was condoned by a petitioner and that this duty is to be discharged even in undefended cases (see Dr. N. G. H Dastane v. Mrs. S. Dastane, : [1975]3SCR967 ). The Supreme Court in Dastane's case held : 'condensation 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 condensation there must be, thereforee, two things : forgiveness and restoration'. The evidence in this case, as already discussed, shows that despite wife's alleged cruelty and mental illness, the parties led a normal married life from September/October, 1970 till September 15, 1971 when the wife was finally shunted out of the house. During this period the parties had cohabited as is evident from the fact that the wife had an abortion in March, 1971. The facts show that the husband had condoned the cruelty if there was any. The appeal is, thereforee, dismissed with costs.