Judgment:
V.K. Jhanji, J.
1. This Letters Patent Appeal is directed against judgment dated 23.9.1987 of the learned Single Judge whereby first appeal from the decree of the Court of Additional District Judge, Jind rejecting the petition under Section 13 of the Hindu Marriage Act for dissolution of the marriage by decree of divorce, has been dismissed.
2. The marriage between the parties took place 18-20 years prior to the date of filing of the divorce petition by husband, which was instituted on 4.2.1985. Out of the wedlock, three children, two sons and one daughter, were born. Appellant filed petition under Section 13 of the Act for dissolution of the marriage by decree of divorce on the ground that respondent treated the appellant with extreme physical and mental cruelty and that his life as also the life of other members of his family is not safe in her hands. On contest, the learned Additional District Judge, Jind, dismissed the petition and, first appeal filed against the judgment of Additional District Judge too came to be dismissed by this Court. Hence, the present Letters Patent Appeal.
3. It has been contended by Counsel for the appellant that behaviour of the respondent had been quarrelsome and, therefore, she was guilty of cruelty. It has been contended that this aspect of the case has not been taken into consideration by the learned Additional District Judge. Counsel has also referred to allegations made in para 3 of the plaint to show that the respondent had been cruel not only towards the appellant but also towards his family members.
4. After hearing the Counsel and going through the record, we are of the view that there is no merit in this appeal. It is settled that before the relief of divorce on the ground of cruelty is granted, it must be proved that the act of cruelty has not been condoned. Condonation in general parlance is forgiveness of the misconduct of the respondent, but it is technical expression under the matrimonial law.
5. The Apex Court in Dr. N.G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534, has held that condonation has two elements: (i) waiver of matrimonial proceedings, and (ii) reinstatement of the guilty person to the earlier matrimonial status. Both must co-exist. In the present case, on a reading of the plaint we find that prior to the filing of petition under Section 13 of the Act, appellant had filed a petition under Section 9 of the Act for restitution of conjugal rights which was ultimately decided as having been compromised on 6.9.1984. It is categorically averred in the plaint that on the basis of the compromise, the appellant kept the respondent with him after forgiving her cruel acts, meaning thereby all acts of cruelty before 6.9.1984 were condoned. The only allegations after 6.9.1984 are contained in paras 5 and 6 of the plaint. They read as under :
'5. That the respondent had something else in her mind. She wanted to kill the petitioner first and assaulted petitioner. Again on 25.1.1985 she designed to kill the petitioner by poisoning. She mixed poison in the milk of petitioner and tried to serve the same to petitioner but unfortunately mother of petitioner somehow came to know about it and petitioner's life was saved. The respondent even assaulted upon the petitioner and beat the petitioner. The petitioner reported the matter to his in-laws but they also showed helplessness.
6. That ultimately on 27.1.1984 the respondent fled from the house of petitioner with jewellery, valuables, ornaments, precious items, clothings and since then never returned.'
6. On appreciation of evidence on record, the above allegations have been found to be false by the learned Additional District Judge and finding in that regard has been affirmed in first appeal by the learned Single Judge. As a matter of fact, during the course of hearing of the first appeal the learned Single Judge tried reconciliation between the parties but efforts in that regard failed. In the concluding paragraph of the judgment the learned Single Judge records :
'During reconciliation, the impression left in my mind was that the wife was right in her plea that she is not liked in the house because she is not good looking and well mannered woman and now the husband has become better off and he wants to have a better looking wife. The wife looked like an illiterate village woman and of quite ordinary looks whereas the husband looked rather affluent. Although husband has stated in the replication that he does not want to remarry but his real intention seems to be to get married again after obtaining a decree of divorce and in order to achieve the object he has cooked a false story that wife wanted to poison him by giving him milk mixed with poison.'
7. In view of the above, we find that no case is made out of interference.
8. Consequently, the appeal fails. It is accordingly dismissed.