Shamsher Bahadur, J.
1. This is a husband's appeal from the judgment and decree of the District Judge, Delhi, dismissing has application under Section 10 of the Hindu Marriage Act for judicial separation from his wife, Shrimati Sarla Rani.
2. The parties were married to each other on 17th of November, 1948 and there are two issues of this union; a boy and a girl born in 1951 and 1953 respectively. The marriage does not appear to have been a happy one. Right from the middle of 1949, according to the petitioner, he received ill-treatment from his wife, whose real intention was to oblige her husband to leave his parents and set up a home with her parents at Ludhiana. This unhappy relationship reached a climax when some time after 15th of December 1951, the wife administered some kind of potion to the husband on the advice of some faqir with the ostensible object of bringing about domestic amity.
In paragraph 3 of the petition, the petitioner stated that she gave the petitioner some potions (Tawiz) which she represented were given to her by some faqir and would remove dissension and bring peace in the house. It is not clear how the contents of the tawiz were injected in him but an allegation was made that right from the beginning of 1952, the petitioner became ill with slow fever, giddiness and ultimately he got nervous breakdown, vomitings, loss in weight, abdominal burning, back-ache and developed heart trouble and various other complications.
Though the administration of this charm was denied in the written statement, the finding of the learned Judge is in favour of the husband and Mr. Umrigar the learned counsel for the respondent wife, has conceded that he would not be questioning the finding of the learned Judge on this point. It is thus, common ground that some kind of magical charm or tawiz or potion was administered to the petitioner-husband sometime in the end of 1951. This is the act of cruelty which is sought to be made a ground for judicial separation.
3. According to the respondent, the plea of cruelty is a mere camouflage to disguise the real intention of the petitioner which is to marry another girl who indeed is her own niece Pushpa, a daughter of her sister. It is denied that the tawiz was given with any malignant intention and she has throughout shown her great concern at the health of her husband which undoubtedly suffered as a result of the administration of the magical charm. The short question for determination is whether the act of the respondent constitutes such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will he harmful or injurious for him to live with her. This question has been answered in me negative by Mr. S. B. Capoor District judge (as Canoor J. then was) and the petitioner has come in appeal to this Court.
4. The term 'cruelty' has never been defined and it has been designedly left by the judicial authorities to keep an elastic form to meet the necessities of the changed requirements and concepts of the society.
5. Before I examine the authorities which have been cited by the learned counsel, tt may beobserved that the petitioner greatly suffered in. health and had to take advice from many doctors and hakims. Mr. Umrigar has brought to my notice that the petitioner himself made an admission in his examination-in-chief on 24th of December 1956 that 'ultimately the doctors diagnosed my illness as being nervous breakdown due to domestic troubles.' It is also clear that the wife suffered from qualms of conscience that the troubles of her husband were due to her foolish act in giving him the 'love potion'.
In Exhibit P. 4, she advised her husband to get himself treated at Kartarpur and exhorted him to give up the idea of medical consultation with doctors in Bombay. In Exhibit P. 8 also, which is a letter written by the respondent to one Tara, suggestion is made that her husband should be taken to Kartarpur. In Exhibit P. 6, which is a letter addressed by the respondent to her husband, she said unreservedly that an evil act had been committed by her at the instigation of other and she should not have been a party to it, if she had realised its consequences.
6. Considering the state of mind, the status and the prevailing notions of the strata of society to which the parties belong, the conclusion appears to be irresistible that a state of tension exists between the husband and the wife and the husband, at any rate, is afraid of living with his wife lest such a thing should happen again. Admittedly, the parties are not living together and their marital life has ceased to exist from 1953. It is to be seen in this context whether the conduct of which the petitioner complains comes within the ambit of legal cruelty according to the meaning attached to this word by eminent authorities.
7. In Rayden on Divorce (1958 edition) page 111, there is an attempt to define legal cruelty. It is said to be conduct of such a character as to have caused danger to life, limb, or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger. At page 113 of the treatise, it is stated that
'In determining what constitutes cruelty, regard must he had to the circumstances of each particular case, keeping always in view the physical and mental condition of the parties, and their character and social status...... Providedthat the conduct in question amounts to cruelty as defined above, it is immaterial that there is no danger of its repetition, though the Court interferes not so much to punish the respondent for the past hut to protect the petitioner for the future; however, there is nothing in the authorities to justify the proposition that a decree based on cruelty is a remedy given, not for a wrong inflicted, but solely as a protection for the victim.'
In Earl Russell v. Countess Russel, 1897 AC 395, Lord Hobhonse stated at page 438 thus:
'...... cruelty has never been confined tocases of personal danger, but has been judged by the wider and more reasonable criterion expressed by Lord Stowell, namely, whether or no conjugal duties have become impossible between the litigant husband and wife.'
In that particular case where allegations of themost abominable character were made by Lady Russell against her husband--allegations for which no support could be found. Lord Hobhouse thought that in his judgment the relations had become impossible so far as impossibility can be predicated of human feeling and action. In Lord Ashbourne's judgment, reference was made to Westmeath v. Westmeath, (1826-2 Hagg Ecc Supp 56), where cruelty, according to Sir John Nicholl, existed when there was ill-treatment or personal injury or the reasonable apprehension of personal injury. Lord Herschell who gave a dissenting judgment, stated that 'in a state of personal danger no duties can be discharged; for the duty of self-preservation must take place before the duties of marriage, whicb are secondary both in commencement and obligation'.
8. The petitioner's case, as stated by his learned counsel, Mr. Lall is that having been subjected to such acute suffering by the administration of the charm (tawiz), the husband is naturally reluctant to take the risk of placing himself in a similar situation again. The instinct of self-preservation, in other words, compels him to seek protection from Court against the wife. He had placed strong reliance on the case Squire v. Squire, 1948-2 All ER 51, which is a decision of the Court of Appeal (Tucker and Evershed, L. JJ., and Hodsan. J.).
In this case, it was held that it was not necessary that the acts which constitute cruelty should be animated by any malignant design or intention. It would be sufficient if they produce the consequences which constitute cruelty, as a person is presumed to intend the natural consequences of bis acts. In Squire's case, 1948-2 All ER 51, a wife suffering from insomnia compelled her husband to remain awake at night to keep her company at the cost of his health and it was held that though she was not actuated by any evil intention, the act constituted cruelly.
The respondent's administration of the 'love potion' may have emanated from the laudable objective of bringing about domestic amity in the house, but it had produced deleterious effects on the husband who is entitled to say now that it produced conditions which he should not be called upon to endure. No doubt, man and wife take each other in marriage for better or worse, in sickness and in health but a spouse is not thereby entitled to put the life of the other in jeopardy, no matter what the real intention may be. The person whose life is put in jeopardy is entitled to seek protection of the Court.
In Lissack v. Lissack, 1950-2 All ER 233, it was held by Pearce J. that
'in petitions based on cruelty the duty of the court to interfere was intended, not to punish the husband for the past, but to protect the wife for the future, and to withdraw from consideration intolerable conduct which was due to insanity would render the court powerless in cases where help was most needed.'
In that case the husband had killed a child of the marriage in a fit of insanity. In the present case, believing in the potency of the charm, the wife had put the life of her husband in danger and the becomes entitled to seek the protection of the Court for the future.
The Court is not to wait for the recurrence of the peril again to afford remedy to the petitioner. In Kaslefsky v. Kaslefsky, 1950-2 All ER 398. Lord Justice Denning (as Lord Denning then was) in a judgment of the Court of appeal, observed that though an act of cruelty must have been aimed by one person against the other, there may be cases where there is no intent to injure and they are not to be regarded as cruelty unless they are plainly and distinctly proved to cause injury to health (vide page 402). According to Lord Justice Denning, thus, there may be a situation in which the act of cruelty would exist in spite of the absence of a malignant intention. In another case, Westall v. Westall, (1949) 65 TLR 337, Lord Justice Denning observed thus ;
'Although malignity is not an essential element of cruelty as 1948-2 All ER 51 shows, nevertheless intention is an element in this sense, that there must be conduct which is, in some way, aimed by one person at the other ........ when there is nointent to injure, they are not to be regarded as cruelty unless they are not only aimed at the other party but also are plainly and distinctly proved, not merely to cause passing distress or emotional upset, but actually to cause injury to health.'
8A. In Jamieson v. Jamieson, 1952 AC 525, which is a decision of the House of Lords, it was contemplated that there could be acts of cruelty without the necessary element of intention. Lord Normand, at page 535. observed thus :
'...... where the cruelty is of the type conveniently described as 'mental cruelty', the guilty spouse must either intend to hurt the victim or at least be unwarrantably indifferent as to the consequences to the victim.'
Lord Normand designedly refrained from discussion of hypothetical cases where actual intention to hurt was absent. It seems, therefore, that cases where there is no intention to injure can be regarded as cruel only when they are plainly and distinctly proved to cause injury to health, as observed by Lord Justice Denning. Lord Merriman, in 1952 AC 525, put the case pithily in these words, at page 540 :
'I must not be taken to suggest that either in England or in Scotland it is essential to impute to the wrong-doer a wilful intention to injure the aggrieved spouse in order to establish a charge of cruelty.'
9. In White v. White, 1949-2 All ER 339, it was observed by Lord Justice Denning that
'in cases of adultery and curelty no specific intent is necessary, and although insanity has often been raised as a defence there is no casein which it has been made good ...... A specific intent to injure is not an essential ingredient in cruelty any more than it is in assault and battery. It is sufficient if there is conduct which is aimed at the other.'
10. In a very recent case, it was held by Wrangham, J. in Robins v. Robins, 1960-3 All ER 66, that an order may have to be made for theprotection of the complaining spouse. The principle of 1950-2 All ER 233, was accepted by implication. Where there is a reasonable apprehension of injury in the future based as experience of the past reason exists for granting relief on the ground of cruelty. Mr. Lall, the learned counsel for the appellant, has also brought to my notice an authority of a Single Judge of the Bombay High Court an Cowasji Nusserwanji Patuck v. Shehra Cowasji Patuck, AIR 1938 Bom 81, to show that
'even a single act of gross cruelty may beenough to constitute legal cruelty, if it is such as to lead to a reasonable apprehension of further acts of cruelty towards the aggrieved party.'
11. In my judgment, the crucial point todetermine is whether there is reasonable apprehension in the mind of the petitioner of a similar act from his spouse in future. The evidence in this case leaves no doubt in my mind about the reality of this fear in the mind of the petitioner. I also think that the fear in the mind of the petitioner, in the context and circumstances of this case, is not groundless and is based on the instinct of self-preservation. He has suffered a great deal from the hands of an ignorant wife and no amount of repentance can undo the wrong that has been wrought. In this situation and state of affairs, it would be futile to expect the petitioner and the respondent to live a normal married life again and it would be a plain denial of justice to keep them within the bonds of marriage.
12. The learned Judge has further held that the act of cruelty has been condoned by resumption of married life between the parties. It is in evidence that an abortion took place after 1951 and the birth of a girl in the year 1953. It has to be remembered that for some time the petitioner was undergoing medical treatment and hiswife had also shown considerable solicitude towards him in the correspondence which has been put on record. It may be that the petitioner had thought that he would recover and that the potion had been given to him in good faith.
In retrospect, however, the petitioner bas thought otherwise and has come to Court for the relief of judicial separation on account of the act of cruelty perpetrated on him in the end of 1951 and the full effects of which did not reveal themselves for two or three years. In these circumstances. I do not think that the act of cruelty could be said to have been condoned. It is true that it is the duty of a Court to see that no decree for judicial separation is granted unless it is satisfied that there is neither any collusion nor connivance nor condonation. However, in my judgment, there is no material on the record to establish that the matrimonial offence of cruelty has ever been condoned by the petitioner.
13. The second issue relating to the custody of the children and maintenance bas not been decided by the learned Judge nor have any arguments been addressed to me in this Court. It would be for the parties to move the Court as and when advised for suitable orders.
14. Holding, as I do, that cruelty has been established, I would allow this appeal and grantthe petitioner a decree for judicial separation under Section 10 of the Hindu Marriage Act. In the circumstances of this case, I would leave the parties to bear their own costs.