Judgment:
N.J. Pandya, J.
1. The Appellant is the original petitioner of the Family Court Petition No. A-164 of 1993 of Greater Bombay at Bandra. By judgment dated 31.8.1996, the learned Principal Judge was pleased to dismiss the petition filed for decree of divorce. The divorce was sought on the ground of mental cruelty said to have been purported by the respondent-wife.
2. The allegations made in the petition and sought to be made out in the deposition was to the effect that the respondent was of a very suspicious nature and she always suspected the husband to be playing around with his lady patients and showing undue interest in his brother's wife. The petitioner is a homeopathic doctor.
3. The petitioner has examined himself before the Trial Court along with one more witness Maninder Singh and wife of that gentleman. In all three witnesses were examined. On behalf of the respondent-wife only the respondent herself was examined.
4. Before filing the petition, notice Exh. 17 was served upon the respondent-wife setting out all the details which are to be found in the petition. That the notice has been received, no reply has been sent, which is an admitted position. In her examination-in-chief, the wife has said at page 119 of the Paper Book that she did not send reply as she did not want to aggravate the situation. She further claims that she want to go back to the matrimonial home.
5. This fact is belied when one turns to letter Exh. 16 which was admittedly written by the respondent wife. It is in terms of unconditional apology and seeking mercy.
6. With regard to this letter, it is her explanation at page 118, last paragraph, that she was made to write this letter because her relative and the father of the petitioner who had come from U.S.A. had met together to work out the compromise.
7. Apart from the controversy whether the letter, Exh. 16 was written by her voluntarily or not, if in fact she wanted to come back to the matrimonial house as claimed in respect of Exh. 17 and in spite of that when she has not been taken back, it is not possible to accept that she did not reply to the notice because she did not want to aggravate the situation and that she wanted to go back.
8. On the contrary the situation seems to be that she was not at all happy with the petitioner. Reason seems to be her intemperament, uncontrolled nature mainly based on what she perceived to be the act of infidelity on the part of the petitioner. The witnesses who were examined have generally supported the petitioner's case. Over and above various incidents deposed to by the petitioner arising out of the aforesaid nature of the respondent-wife, when one come across the possible threat of suicide as also the tendency of the wife to hurl abuses at her husband-petitioner, in our opinion the case of cruelty is established when tested on the basis of preponderance of probability. This being the civil proceedings, that will be the basis for resolving the conflict between the two parties.
9. Written Statement and the oral evidence led by the wife no doubt are in the nature of denial. Her deposition is also mainly that of denial. When these two conflicting versions are decided on the aforesaid basis and the evidence on record is evaluated, obviously the case of cruelty is established.
10. The Trial Court has also gone on recording to say that the alleged cruelty has been condoned. We have already held that the cruelty is established. By way of condonation as referred to by the Trial Court is that till the respondent wife left the marital home they were co-habiting together and were having physical relations. For two young persons to have physical relations is quite common. By that itself would not lead to an inference of condonation. Even that case is not put forth by the other side. She has left the marital home since 24.4.1992 and has stayed away since then.
11. In this background neither the conclusion of the Trial Court nor the opinion can be sustained. The appeal is therefore allowed. Decree of divorce is granted. Under the circumstances, the parties are left to bear their own costs.