A.S. PAINTAL Vs. IRIS PAINTAL |
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A.S. PAINTAL Vs. IRIS PAINTAL

Judgements favoring men

 
Court:DELHI HIGH COURT

Bench: JUSTICE N.N. Goswamy

A.S. PAINTAL Vs. IRIS PAINTAL 9 May 1985

Law Point:
In different attitude of respondent towards the appellant’s relatives( brother, mother,father etc.) this conduct of respondent amounted to cruelty against husband.

 

 

JUDGEMENT

 

This appeal by the husband is directed against the judgment and decree dated 31st October 1983 passed by the learned Addl. District Judge, Delhi whereby his petition under section 27(b)(d) of the Special Marriage Act for dissolution of marriage on the grounds of desertion and cruelty was dismissed.

2. The parties were married under the Special Marriage Act on December 5, 1949 at Timli District Dehradun. After the marriage the parties resided and cohabited as husband and wife at various places. Lastly they resided and cohabited in Director’s bungalow Vallabh Bhai Patel Chest Institute, Delhi. It is alleged in the petition that the married life of the parties was very happy and from the wedlock three children were born namely Anita (now married), on 7th February, 1953, Miss Priti on 2nd February, 1960 and Gautam on 22nd September, 1961. The relations between the parties were quite cordial and peaceful until March, 1964. The petitioner being highly qualified renowned research scholar, one of the top most scientists in the country and known for his hard work and devotion to his duties, was appointed as a Director of V.P. Chest Institute in the year 1964. The functioning of the said Institute is among others to conduct and carry out research and also to conduct the courses such as M.D., M.Sc, D.T.C.D. and Ph.D. etc. The petitioner himself is qualified with degrees of M.D., Ph.D., D.Sc, F.R.C.S., F.A.M., F.A.M.S. and F.M.A. It is alleged that the nature of the work of the petitioner is supervisory, administrative as well as that of guiding of the academic staff engaged in the Institute. In addition he is expected to carry out his own research and experiment in a specially maintained laboratory exclusive for him which is known as Director’s laboratory. In order to carry out his various types of research, the petitioner-appellant has to be assisted by members of academic staff of the Institute. Besides this, the appellant in capacity of a Director and a top most Scientist in generally invited by the foreign institutions to deliver lectures, read papers and give consultations pertaining to progress in the field of his profession. He, therefore, visits foreign countries for this purpose off and on. Because of the nature of the work, the appellant is engaged, he spends more of his time in the laboratory carrying on various experiments and research. Due to this, the appellant remains in the laboratory most of the time. It is alleged that ever since the appellant joined as the Director he has been burdened with heavy and valuable responsibility. As such the appellant had devoted most of his time in his research study and guidance. The respondent because of these reasons started quarrelling, harassing, annoying and defaming the appellant in circle of friends, relatives, society and staff members. This fact is born out, according to the appellant, from various letters written by the respondent, which have been enclosed with the petition. In the petition a particular reference has been made to letter dated 8th April, 1964 written by the respondent to the appellant wherein the respondent has shown complete indifference to the relatives of the appellant and has gone to the extent of saying that the appellant must completely breach of with his relatives and in particular with his father. It is alleged that the appellant repeatedly told the respondent that they had entered into a much advanced age and had got grown up children and hence no displeasure be created which may affect adversely the minds of the children and the position of the appellant. However, the respondent did not realise the same and acted to the prejudice of the appellant. A reference has been made in the petition to various letters written by the respondent which have resulted in spoiling the image of the appellant in the circle of his colleagues, superiors and relatives.

It is further alleged that instead of amending the behaviour, the respondent started abusing, Insulting and harassing the appellant in the presence of the children and also academic staff members working under the appellant. The respondent many times threatened the appellant that she would withdraw from the company of the appellant and would go abroad to settle there. The appellant persuaded her to give up that sort of attitude and live as a wife in the interest of the children and the family. However, the respondent refused to live in the company of the appellant due to which the appellant had been leading the deserted life even when the parties were staying under one roof. The respondent rarely talked to the appellant and always acted against the wishes of the appellant, which is not expected of a wife. As a result of which a great mental strain came on the mind of the appellant and he became seriously ill but the respondent did not care or bother for the appellant.

3. It is further alleged in the petition that from the beginning of January, 1973 the relations between the parties became worst and ever since they have been residing separately though under the same roof. It is further alleged that the conduct of the respondent towards the appellant became so harsh and inhuman and in her attempt to defame the appellant, she ever started abusing and insulting the appellant in his office and laboratory. It is alleged that on 5th October, 1978 the respondent came to laboratory and abused the appellant in most inhuman manner and informed him that she had decided to leave him for good and go away to Lancaster as planned earlier. The very next day the respondent came to laboratory again and made a trunk call to Lancaster from a telephone in the laboratory informing Prof. Elizabeth Parrot that she was leaving Delhi for good. The respondent also wrote many letters to the appellant to demoralise him. It is alleged that the appellant has been earning quite handsome salary besides various other facilities such as bungalow, car etc. in the capacity of a Director and as a faithful husband he handed over and provided the respondent with all the expenses needed for running of the house-hold. The respondent started accumulating all the wealth in her name with the result that the appellant is left with only his monthly income and the respondent on the other hand has become the moneyed lady, A particular reference is made to a publication in “Blitz” in its issue dated March, 29, 1980. It is also alleged that the respondent has been impressing upon the children to harass the appellant as a result of which the children have also started non-co-operation with the appellant. A particular reference is made in the petition to the letter written by the respondent to the Vice-Chancellor of the Delhi University and the letter of the Vice-Chancellor to the appellant. The said letters indicate the grievance of the respondent regarding extra-marital activities of the appellant with one Miss Ashima Anand a junior colleague of the appellant. It is further stated that the respondent by her conduct and actions amounting to cruelty, insults, humiliation and annoyance has compelled the appellant to leave the bed room and then the house and stay separate. The appellant has been leading a deserted life since the last several years and the respondent has got no interest in the appellant.

4. The petition was contested by the respondent. In the written statement, the factum of marriage, birth of the children, qualifications, achievements and the responsibilities of the appellant have been admitted. It is stated that the respondent has always taken pleasure and felt happy about the progress and promotion of the appellant but it is the extra marital relationship of the appellant which has resulted in the present situation. The respondent has always been a faithful wife to the appellant and the allegations to the contrary have been denied. It has been denied that the respondent threatened to withdraw from the company of the appellant and go abroad to settle there. It is pleaded that the appellant got himself emotionally involved with his research student Miss Ashima Anand and he wanted the respondent to leave the country for which he tried his best to secure a research fellowship at Lancaster University for the respondent. The appellant made all efforts to see that the respondent left the country so that he could free to enjoy his personal life. It has been denied that the appellant was leading a deserted life because of the actions of the respondent and it has been pleaded that he was spending day and night till the early hours of the morning in his laboratory with his young research student Miss Ashima Anand, a 28 year old girl. It is stated that the doors of his laboratory were kept looked and nobody could enter. The appellant refused to have tea and meals in the company of his wife and children. It is further mentioned that in September, 1977 when the respondent was in U.K. the appellant went on a high altitude excursion in Kashmir with Miss Ashma Anand. As result of this excursion in high altitude the appellant was taken ill. This excursion which the appellant and Miss Anand took all alone in the mountains led to a lot of scandal in the Institute and the University campus. The second time that the appellant fell ill was in May, 1978 after his eldest daughter’s wedding when he was operated upon for Harnia at the Willingdon Hospital where the respondent along with her three children nursed him. It is further pleaded that the appellant wanted the respondent to go abroad so that he could instal Miss Ashima in the matrimonial home. It is stated that the appellant voluntarily left the bed room and started sleeping in the back room of the house on the pretext that his sleep was disturbed by the barking of the dog, the ringing of the telephone and banging of the stick of the chowkidar at night. It is further pleaded that the appellant stopped having his meals etc. with the respondent or with the children and has been eating his meals outside in clubs and restaurants in the company of Miss Ashima Anand. Ever since December, 1979 the appellant has been seen in the official car taking Ashima Anand to various places for lunches and dinners. The averments regarding the visit of the respondent to the laboratory and insulting the appellant have been denied. It is pleaded that the telephone call was made by the appellant because he was interested in getting rid of the respondent. He was disappointed to know that the departure of the respondent for landaster would take some time. The respondent has admitted having written the letter to the Vice-Chancellor but it is pleaded that the letter was confidential and personal and it was written to the ¥ice-Chancellor hoping that the appellant may mend his ways but the Vice-Chancellor refused to interfere in the private life of the parties though he promised to talk to the appellant, it is further pleaded that Ashima Anand’s parents had also heard about this scandal concerning their unmarried daughter and they tried to persuade their daughter to live with them in their home in Delhi but the appellant threatened them with police action if she was removed from his laboratory and his home. Miss Ashima Anand was removed from the home of the appellant and installed in the flat of the Institue when the children of the appellant resented. However, even after that the appellant used to take her out in his official car.

5. It is further pleaded in the written statement that though the appellant was earning handsome salary besides other benefits he was not looking after the family and he had remitted a sum of Rs. 2000/- to the children in order to win them over but he failed in his mission. It has been denied that the respondent has become a moneyed lady. According to the written statement, the respondent purchased the car from her own savings from her salary. It is stated that the appellant never gave anything more than Rs. 600/- to Rs. 800/- to the appellant for running of the house-hold and the remaining amount was always contributed by the respondent. The appellant did not contribute anything at all at the time of the marriage of their eldest daughter and all the expenditure of clothes, jewellery and other items were spent by the respondent from the joint account of the respondent with her three children. Only item of expenditure for which the appellant paid for was a sum of Rs. 6000/- which was spent for the wedding reception. It is pleaded that the appellant does not remain upset because of the actions of the respondent but to the contrary the scandal created by the appellant has hurt and humiliated the respondent and the grown up children who have been extremely embarrassed by remarks made by their class-mates, friends and strangers. As regards the news item in ‘Blitz’, it is stated that the appellant is responsible because of his own deeds and actions. It has been denied that the respondent tried to impress upon the children to harass the appellant and to be non-co-operative. On the contrary, the respondent has been neglected along with the children and the appellent has spent the last two years with Miss Ashima Anand in the laboratory with the doors locked till the early hours of the morning. The respondent and the children had been begging the appellant to pay attention to the family but in view of the appellant’s involvement with the young girl the appellant has lost all sense of proportion. The true facts of the involvement of the appellant with Miss Ashima Anand were brought to the notice of the respondent by the three children themselves. The respondent tried through the relatives of the appellant to put some sense in the appellant but they failed to bring about any result. It is pleaded that it is the appellant who is guilty of untold cruelty and misery to the respondent which she has borne in order to save the lives and honor of the children. It is pleaded that for the benefit of a house in which they are living the appellant has stopped providing any other thing to the respondent. Occasionally the appellant has given some money to the cook for incurring certain expenditure for needs for the children. It is only the cook who keeps account and the respondent has no knowledge of it. No money has been paid for the alleged conforts, food or any other item of necessity to the respondent. The bill of the appellant for his expenses on entertainment of Miss Ashima Anand alone is a good reflection on the habits of the appellant. The appellant intentionally got the telephone which was installed at his house disconnected. It has been denied that the respondent has deserted the appellant and it is pleaded that the appellant himself and voluntarily left the house.

6. In the additional pleas taken in the written statement, it has again been pleaded that the matrimonial problem between the appellant and the respondent is only of recent origin, when the appellant got emotionally involved with his young assistant 28 years old Miss Ashima Anand who became his favourite companion and worked with him everyday in his laboratory till the early hours of the morning with the doors locked. He rewarded Miss Ashima Anand for the favour she showed by first sending her to Oxford in 1977 for 4 months and the next year to John Hopkina University in the U.S.A. for three months, in May. It is further mentioned that Miss Ashima Anand was struggling to write thesis for her Ph.D. for four years but she did not succeed. Finally the appellant wrote the entire thesis of Miss Ashima Anand in October, 1976 to enable her to receive her Ph.D, degree. On account of writing this thesis the appellant cancelled a proposed holiday in Simla in October, 1976 with the respondent and children. In the second additional plea, it is pleaded that the respondent was in U.K. in June, 1977 on a British Commonwealth fellowship, the appellant, visited U.K. a month later in July 1977, instead of contacting his wife first in U.K., the appellant contacted Miss Ashima Anand who vest down from Oxford to meet him and they spent three days together in London in July, 1977. The appellant then went with Miss Ashima Anand to Oxford and stayed with her in her flat in Oxford. The respondent has especially come down from Lancaster to Oxford to meet the appellant in July 1977 and naturaly went to stay with the whitterdiges in Oxford, old friends of 28 years who were expecting both the appellant and the respondent to stay with them. The appellant refused to stay with them in order to avoid further gossip and embarrassment. The respondent was also forced to move from the Whitteridges in Oxford and stay in Ashima Anand’s flat. The respondent returned to Lancaster but the appellant then travelled to Paris along with Ashima Anand in July 1977 and spent one month in Europe along with her.

7. In the additional pleas, it is further pleaded that the appellant brought Ashima Anand with him to Delhi in August 1977 and installed her in his house in the absence of his wife and without her consent as a mistress of his house. He gave her plenty of money to run his house and asked her to be his hostess when entertaining the foreign guests. Miss Ashima Anand had used her friendship with the appellant’s daughter to gain entrance into the house and this completely fooled her innocent daughter who did not suspect her real motives. In September, 1977 when the respondent was in U.K. the appellant took Ashima Anand along with him to Kashmir on the pretext that they were carrying out high altitude experiment there. It was on this excursion at such heights that the appellant fell ill. This visit of theirs alone to Kashmir caused a lot of gossip in the Institute. When the respondent returned from U.K. in November 1977 she was shocked to find that the girl had usurped her position as mistress of her home and had gained complete control on her husband. When the respondent wanted to take charge of her home again the appellant told her very sternly not to disturb the arrangements he had made but to get her busy instead in her Ph.D. degree. Miss Ashima Anand also deceived the respondent and told her that she was not happy in Delhi and would be leaving shortly for Paris where she had applied for a job. Miss Ashima Anand also told the respondent that she was leaving shortly for U.S.A. to visit her brother and that if she gets job in U.S.A. she would be leaving for good. She left for the U.S„A. in the third week of May 1977 and left the impression that she would not return to Delhi as the appellant had arranged a job for her in John Hopkins University. In June, 1978 after the marriage of the eldest daughter of the parties, the said daughter Anita informed the respondent about the terrible rumours in the Institute about her father and Miss Ashima Anand. On hearing this, the respondent and her daughter Anita objected very strongly to the appellant about bringing Miss Ashima Anand back from the U.S.A. to work with him in the laboratory. In spite of this, the appellant ignored the feelings of the wife and the eldest daughter and sent a telegram to Miss Ashima Anand to return to Delhi immediately as he needed her. On receipt of this telegram Miss Ashima Anand returned to Delhi on August 9, 1978 to the complete surprise of the respondent and the three children. The appellant went to the Airport to receive Miss Ashima Anand and again installed her in the home as mistress of the home. The respondent and her children objected very strongly to this action. Miss Ashima Anand’s parents came in a taxi from distance of 30 Kms. to collect their daughter and the belongings. The appellant refused to allow her parents to take their unmarried daughter home and threatened them with police action. Finally, the parents left when the appellant promised to send their unmarried daughter home to them in the evening. When the respondent was away at work the appellant installed this girl back in the home. When the respondent returned in the evening. When the respondent was away at work the appellant installed this girl back in the home. When the respondent returned in the evening the appellant told her that Miss Ashima Anand was soon leaving for Khatmandu and from there she was going to Canada for good, and therefore the respondent should have patience. These few days, however, apread out to six weeks which the respondent tolerated with God’s grace and to avoid any embarrassment to the children. It was on October, 4, 1978 that Miss Ashima Anand flew up to Khatmandu. Before Miss Ashima Anand left for Khatmandu, the respondent made it clear to her that she would not be welcome in he home any more in case she returned. The respondent also informed the appellant that Miss Ashima Anand could not stay in her home under false pretence. The appellant then tried to persuade his two younger children to allow her to stay but these two children protested very strongly that they would leave the hoke if their father brought this girl to stay in their home.

8. It is further pleaded that on 9th November, 1978 Miss Ashima Anand’s mother who had heard sufficient gossip about her daughter objected very strongly to the appellant about her daughter working any longer in the Institute. She came to the appellant’s home and she wanted to collect her daughter’s belongings to take them with her. The appellant refused to allow the mother to take her unmarried daughter’s belongings home and this created a scene lasting for two hours in the presence of the appellant, the respondent and the children. It was only when the appellant assured Miss Ashima Anand’s mother that he would arrange a jot abroad for Miss Ashima Anand that her mother left the appellant’s home. However, the appellant got Miss Ashima Anand back from Khatmandu on November 20, 1978 and insisted on installing her back in his home. The wife and the children of the appellant objected very strongly but he installed her in Patel Chest Institute’s flat closed by to which she was not entitled. The appellant continued to visit her constantly there. Since the respondent had refused to allow this girl to stay as mistress in her home, the appellant told the respondent “If Miss Ashima Anand cannot stay there in this house the marriage was over”. After that he refused to speak to the respondent and stopped having any of his meals at the dinning table of the family. He spent all day and every evening in the lab. with his Assistant Miss Ashima Anand and only returned late night to sleep alone in the back room where he installed himself so that he would have complete freedom of movements. The children were completely up set by this behaviour of the appellant. On December 1, 1979 in the evening when the respondent was not at home, the appellant decided to leave the house when only one daughter namely Pretti and the son were present. The said two children tried to stop the appellant but the appellant said that he could not give up Miss Ashima Anand at any cost and he was leaving to look after her. When the two children would not let him leave the house, the appellant very cleverly twisted the facts and said that he was going to visit his old ailing father in Lucknow and so the children reluctantly let him go. The respondent and the children later on discovered that the appellant had not gone to Lucknow at all but was seen by her children having lunches and dinners with Miss Ashima Anand in various places. Since December, 1979, the appellant was seen taking Miss Ashima Anand out alone in his official car to various places. He had installed her in close by home in the officers’ Hostel of the Institute on Economic Growth. The children were extremely up set by his behaviour and pretexted several times. Finally, the officers of the Institute also lodged very strong portest and therefore Miss Ashima Anand was forced to leave the Institute and the appellant’s laboratory on January 24, 1980 and went to stay with her parents. Because of the appellant’s frustration and inability to associate freely with Miss Ashima Anand, the appellant has filed the petition for divorce on March 13, 1980. He refused to listen to the places of the children or the respondent. Miss Ashima Anand went to Germany in March, 1980, the appellant, shortly thereafter followed her to Germany and met her there and they stayed together in hotels and other places. The appellant returned to Delhi on 3rd August, 1980 and joined the Institute again as Director. He then persuaded Miss Ashima Anand to return home in Delhi and so strong is their attachment that on October 27, 1980 Miss Ashima Anand has rejoined the Institute and has been installed in the laboratory again. The appellant has been seen taking her out in his official car again and he has installed her in a flat close by where he visits her constantly. The appellant has refused to return to his matrimonial home and live respectfully with his children in the Director’s bungalow. He also takes Miss Ashima Anand out with him in his official car to official functions instead of his wife. He has completely abandoned his two children and has never taken them out with him anywhere her he visits them in the home.

9. The appellant filed the replication. He denied all the allegations contained in the written statement and reiterated his case set up in the petition. He has specifically denied his relations with Miss Ashima Anand and has stated that his relations with her are only that of a teacher and a taught.
10. On the pleadings of the parties, the following issues were framed :

1.
Whether the respondent has deserted the petitioner for continuous period of more than two years on the date of the presentation of the petition ?

2.
Whether the respondent has treated the petitioner with cruelty as alleged in the petition ?

3.
Whether there has been any unnecessary or improper delay on the part of the petitioner in instituting the present proceedings ?

4.
Whether the petition is not in accordance with rules ? If so, its effect?

5.
Relief.
Later on, on the request of the parties, an additional issue was framed to the following effect :

“Whether the petitioner has condoned the acts of the cruelty”

11. In support of his case ? the appellant examined himself as PW 1 and proved various letters paced on record. The respondent examined herself as RW1, her daughter Preeti as RW2, her son Gautam as RW3 and her brother Eric Helm as RW4. She placed certain documents on record and proved the same. Unfortunately the learned trial Judge did not consider the evidence in details and came to the conclusion that prior to Miss Ashima Anand having come on the scene there were only were only wear and tear on married life. He further found that the letters written by the respondent to the Vice-Chancellor and other associates of the appellant were not called for but observed that the respondent might have committed some mistakes in achieving the motive to bring about the appellant to live a happy marriage life. These acts of the respondent were described as acts of a frustrated lady. As regards the desertion, the learned trial Judge came to the conclusion that it was appellant who had left the house and as such the question of desertion on the part of the respondent did not arise. In the circumstances, I have been taken through the entire oral and documentary evidence on record.

12. Issues Nos. 1 and 2 are in a way interconnected. The main allegation of the appellant in the petition is that the respondent made frivolous charges against the character of the appellant by alleging that he had extra marital relation with Miss Ashima Anand. The respondent has gone to the extent of maligning him before the Vice-Chancellor of the University, all his senior colleagues, his colleagues and scientists abroad and all the relations of the appellant as also of the respondent. The respondent has not denied the fact and she had written letters to the Vice Chancellor with copies to seven other persons. She has also admitted having written letter to the appellant and sent copies thereof to all the brothers, sisters and sister-in-law of the appellant as also to her brother and other relations of her own. In these letters she has categorically accused the appellant of his extra marital activities with Miss Ashima Anand.

13. By now it is judicially well recognized that false and reckless allegations on the character of the spouse so as to injure his/her reputation amounts to cruelty as envisaged by section 27(d) of the Special Marriage Act which is similar to section 13 of the Hindu Marriage Act. However, if it can be shown that the spouse reasonably believed that the other spouse is committing adultery it may offer him/her a fair and a good defence. The burden of proving that the allegations are bona fide and reasonable will necessarily be on the spouse making such allegations. A Division Bench of this Court in Smt. Kanta Gupta v. Mukesh Gupta, F.A.O. (OS) 124/84, while upholding my judgment observed that making reckless allegations of immorality against the other spouse amounts to mental cruelty. A learned single Judge of this Court in Smt. Lajwanti Chandiok v. O.N. Chandiok, II (1981) DMC 97, held that defamatory complaints to the employer or other authorities constitute worse type of cruelty. I had taken the same view in Shardha Nand Sharma v. Kiran Sharma, II (1985) DMC 257=28 (1985) DLT 32 (SN).

14. It is an admitted fact that the respondent had written letter Ex. PW/1 dated May 5, 1979 to the Vice-Chancellor, Delhi University, letter Ex. PW1/E to the appellant with copies to all the relations of the appellant and the respondent, letters to Mrs. Whitteridges and Mrs. M. Torrance, replies of which are Ex. Z2 and Z3. In all these letters she had made serious allegations about immorality and extra marital relations of the appellant with Dr. Ashima Anand. It would be relevant to reproduce the letter Ex. P’”/l/F written by the respondent to the Vice-Chancellor. Which is, as under :

“The Vice-Chancellor,
Delhi University,
Sir,
This is to report officially that my husband, Dr. Autar Singh Paintal, 54 years old, Director of the Patel Chest Instituted is throwing me out of the house, which I have looked after well for 30 years and brought up his three children, because he has fallen in love with his 28 years old assistant, Ashima Anand, and he wants to install her in my home in my place. My daughter, Priti 19 years old, has objected to his taking this girl out with him instead of her mother, so he is throwing her out of the house as well. He has turned against his two other children as well, since they have also protested against his love affair and his taking this girl out with him alone in the Institute official car to the Club for swimming and dinner late at night. I could inform my University friends and seek help in medical circle to stop his scandalous affair. But I thought it best as you are Head of this University and the Institute to complain to you first. The Institute employees have seen him waiting in the official car outside her flat at night and visiting her there. The whole Institute is now openly talking about his love affair with this girl young enough to be his daughter.
He has thrice told me to leave the house in the presence of the children and he is now harassing me in every way and inflicting such mental torture on me so that I leave home in pure desperation and he can then accuse me of desertion. The last time at night he abused me and tried to break down my bed room door so that by physical force he could turn me out of the house. I, therefore, appeal to you, Sir, to take whatever action you can to protect me so that I am not forced to seek police protection for my safety as my husband continues to threaten me with violence. I am seeking for help not only as a senior wife, but as a permanent teacher of Delhi University.

In order that the reputation of the Institute is not affected further, it is necessary that this scandalous affair, which has caused so much damage to the name of the Institute is terminated immediately as it is, the Senior Officers of this Institute are accusing the Director of gross moral terpitude and this ludicrous behaviour of his has only made him a laughing stock in the Institute. I do hope you will be able to help in this matter and take necessary action seen, so that my home which 1 have built up for 30 years is not destoyed by this woman who is instigating him to throw me out, and the future prospects of my children are not ruined.

Yours faithfully,
Sd/-
(Mrs. Iris Paintal)
Copy to :
1. Dr. R. Vishwanathan, V.P.C.I.
2. Prof. S. Chandrasekhar, V.V.C.I.
3. Prof. K.L. Wig.
4. Dr. B. Shankaran, D.G.H.S.
5. Dr. (Mrs.) Bimla Chaudhary.
6. Dr. (Mrs.) Santosh Chawla.
7. Shri J. Veeraraghavan.”

15. As is apparent from this letter, the copies were sent to seven persons including the then Director, Patel Chest Institute and Director General Health Services. Letter Ex. PWI/E though written to the appellant runs into nine single spice typed paged and is in such a language that it is meant for the 11 persons to whom the copies were endorsed. In this letter also the respondent had made all the grievances which she had made in her written statement and had attributed immorality and extra marital relations to the appellant with one Madhu Kalia and Miss Ashima Anand. Similarly, it appears from the replies to the letters from the wives of the foreign scientists Ex. Z2 and Ex. Z3 that she had made this grievance to those ladies who are directly concerned with the work of the appellant abroad and are Scientists in the same line.

16. The question for consideration is whether the respondent was justified in sending such communications to all concerned. The case of the respondent in the written statement as also in her statement is that the relations between the parties remained cordial till July 1977. It was in April 1977 when Miss Ashima Anani was in Oxford the appellant visited her in July 1977 and stayed with her. The respondent has repeatedly stated in her statement that her relations with the appellant started becoming strained in July 1977 when he stayed with Miss Ashima Anand in her flat in Oxford. She has also deposed that the appellant fell ill in 1977 during September when he went to Kashmir along with Miss Ashima Anaad and their visit created a scandal in the Institute. It is her further case in her statement that when the respondent returned to India in November, 1977 she found Miss Ashima Anand as the complete mistress of the house and the appellant used to pay house-hold expenses to her for running the house. She has also stated that she had a quarrel with the appellant over his affairs with Miss Ashima Anand in 1977 and in the presence of her children namely Gautam and Priti, In Cross-examination, she denied having written any letter to Miss Ashima Anand. However, when confronted with the letters Ex. RW1/P1, Ex. RW/P2. Ex; RW1/P3, Ex. RW/P4 and Ex. RW/P5 she had to admit that all these letters were written by her to Miss Ashima Anand and these letters were written between September 1977 and July 1978, I shall deal with the letters little later.

17. It is also an admitted fact that right from 1964 when the appellant became the Director of V.P. Chest Institute he was saddled with big responsibility and used to spend most of his time in his laboratory doing experiments. The respondent as also the children of the parties while appearing as witnesses, have in cross-examination, admitted that the appellant used to be working in his laboratory till late at nights and sometimes till 2.00 a.m. The real grievance of the respondent against the appellant, appears to be that he had no time for the family. This fact is born out from the earliest letter wherein the respondent had made allegations against the appellant. The letter is dated 12th January, 1978 and is Ex. PW1/C. It reads as under :

“Dear Autar,
Please show the accompanying sheet to any husband in this word and ask him if the wife has no cause for complaint.
This will be my last communication to you on this point. After this even writing will cease from my side. Everything else has ceased as you yourself know.”
The said accompanying letter is, as follows :

“A Husband’s treatment of a wife.
Time for me :
Nil
Company (Even sleeps alone)
Nil
Conversation :
Nil
Sharing of interest :
Nil
Sharing of Problems :
Nil
Attention :
Nil (The dog received more).
Love and Sex :
Nil. (For the last ten years it has declining— for the last two years a complete stop).

Most husband compensate by giving their wives extra attention and kindness but in this case it has been the reverse.

Home Life :
The husband and children just use the home as an hotel for sleeping and eating.
Money given :
Nil (Even refuses to give it to her for normal house keeping. Leaving alone her personal and other expenses).
Status :
Nil. (The Jamadar has a better status and more respect).
Time for relatives
and others,
Sufficient—always willing to do for others even in the middle of the night.
Going out publicly
with her :
Refuses as he claims he has no time. She has to go out alone even at night.”

18. It is apparent that while she has made all the grievances against the appellant there is no mention of the appellant’s relations with Miss Ashima Anand or any other scientist. Coming to the letters written by the respondent to Miss Ashima Anand it is interesting to see that all her letters written to Miss Ashima Anand during September 1977 and July 1978, the letters are full of love and affection. The letters indicate that Miss Ashima Anand was being treated as a member of the family. The respondent was out of the country for some time and she requested Miss Ashima Anand to look after the health of the appellant who was stated to be ill during those days. Miss Ashima Anand was being kept informed about all the members of the family and friends. Complete information is being furnished by the respondent to Miss Ashima Anand about the activities of the children, their education and their welfare.

19. The next set of letters is from Priti RW2, daughter of the parties, to Miss Ashima Anand. The first letter is Ex. RW2/P1 dated 30-5-1978. The second letter, is Ex. RW2/P2 dated 30-6-1978. The Third letter is Ex. RW2/P3 dated 21-7-1978 and the fourth is Ex. RW2/P4 dated the 30th of December, 1978. First three letters were written by Priti to Ashima when Priti was in Delhi and Ashima had gone out of the country. The fourth letter i.e. Ex, RW2/P4 was written by Priti from Bombay to Ashima at Delhi. In all these letters Ashima is being addressed as ‘my dear Ash, and the letters are again full of love and affection. A particular bond of affection is disclosed in these letters. Ashima is being informed about all the relations including her mother by Priti when she was out of the country. Priti has also written about herself and her boy friend. She is wanting to these letters everything about U.S.A. and Ashima’s visit to various places. She has also asked Ashima to bring another pair of jeans for her when she returns to India. In particular it is written in letter Ex. RW2/P2 :

“At home there is nobody I can talk to and the situation at home has become worse. Jagjit Chacha rarely comes to the house and nor do the other relatives. Lakhbir uncle and his family are very nice and I stayed with them for 10 days a Calcutta.”

It is also written that she has been anxiously a waiting for Ashima to come back to India. All the letters and with “lots of love—Priti” Similarly in the last letter written by Priti from Bombay to Ashima in Delhi similar language is used and same love and affection is shown. Complete information regarding Bombay and the relations there is being furnished to Ashima in that letter.

20. In the letter Ex. RW1/E dated 31-1-1979 the respondent has mentioned specific incidents with dates. It is stated that in June, 1978 Anita informed her about the terrible gossip in the physiology department about the Ashima and the appellant. It is further mentioned that Anita had a big scene with her father in the laboratory lasting for three hours when she accused Ashima of being his mistress. In spite of all this, the appellant brought Ashima and lodged her in the house. It is again mentioned that on August 14, 1978 the respondent was distressed to find that the appellant had forcibly put Ashima back in the home. There was long and bitter arguments in front of Priti and Gautam after which the appellant promised in front of the said two children that since some foreign guests were coming and would be staying for 4 or 5 days, he would make arrangement for Ashima to live separately after the guests leave. It is again mentioned that on October 4, 1978 when Ashima finally flew off to Khatmandu out of the institute’s funds arranged by the appellant, the respondent had a long and bitter argument in Priti’s presence and insisted that Ashima could no longer live with them under false pretence. In this very letter respondent has also tried to bring in one Madhu Kalia who was also a junior colleague of the appellant. The respondent has blamed the appellant for having extra marital relations with the said Madhu Kalia who has left the country since long, and she figured neither in the written statement nor in any of the earlier letters. In the same letter various such incidents are mentioned and the dates given are in October and November, 1978. I have given my careful consideration to the allegations levelled in this letter and I am of the opinion that these allegations are only imaginary and have no truth at all. If the allegations, as levelied, were correct there would have been no occasion for the respondent or for Priti to write such affectionate letters to Ashima which are all written after the alleged unpleasantness between the parties on account of Ashima Anand. As pleaded is the written statement and the statement of the respondent and the children, the unpleasantness on her account started in September, 1977. In any case, the unpleasant incidents took place in presence of the children much before Ashima had left the country in 1978. In spite of that, the respondent has written no less than four letters and so as Priti. All these letters disclose that Ashima was always being treated as a member of the family and each of the members had love and affection for each other. In fact the respondent herself has mentioned that she was treating Ashima as her own daughter for a period of four years, which statement appears to be correct. Looking from another angle if Ashima was the bone of contention between the parties, this would have found place as the first grievance in the letter of the respondent dated 12-1-1978 reproduced above. In the said letter, the respondent has expressed all her grievances against the appellant but the letter is silent about any extra marital activity of the appellant, particularly, with Ashima. If the incidents had taken place in September, 1977 as alleged, it is not possible that the respondent would not have made the grievance in her letter dated 12th January, 1978.

21. The statement of R.W.2, RW3 and RW4 i.e. the daughter, the son and the brother of the respondent, do support the case of the respondent, but I am unable to believe the same, for the reasons already recorded above, and particularly for the reason that they are under the influence of the respondent. If all the incidents had taken place in presence of the children, as alleged, it is impossible to believe that even thereafter the children, particularly, Priti will continue to have love and affection for Ashima as is bron out from her letters. In her letter Ex. RW2/P2, Priti is informing Ashima about the unpleasant situation in the house and the relatives not visiting the house. This clearly indicates that the reason for the situation was not Ashima but was something else.

22. In letter Ex. RW 1/E written by the respondent, it is mentioned that in June, 1978 the eldest daughter of the parties had informed the respondent about the terrible gossip in the Physiology Department about Ashima and the appellant. It is further mentioned that Anita had a big scene with her father in the laboratory lasting for three hours when she accused Ashima of being his mistress. Anita has not appeared as a witness. However, from letter Ex. R. 3 and Ex. R. 4 dated 27-8-1980 and 17-9-1980 written by the appellant to Anita, it is apparent that she had a soft corner for the appellant. Not only she was in correspondence with the appellant but had also offered financial help to the appellant and had requested the appellant to get some suitable house and use taxi for his conveyance. These letters indicate that she had no cause of grievance against the appellant.

23. From the entire record, I find that the innocent girl namely Ashima Anand had been dragged in for the first time in January 1979 in the letters Ex. PW1/E and Ex. PW1/F. From the circumstances, it appears that the respondent has brought Ashima only in order to take revenge from the appellant as she did not get sufficient time from the appellant and was fed up of all relatives of the appellant. The appellant was not willing to break of with his relatives which the respondent could not tolerate. Admittedly the appellant was very busy with his experiments in the laboratory and he used to be in the laboratory on occasion even till the mid-night or early hours of the morning. This is admitted by the respondent herself. In these circumstances, obviously the respondent was dissatisfied with the appellant and had unpleasant incidents because of that. These letters and communications to all the relatives of the appellant also of the respondent and to all the colleagues of the appellant in India and abroad have affected the reputation of the appellant and has naturally caused a mental agony to the appellant. From the letters Ex. Z2, Ex. Z3 and Ex. PQ/1 written by the wives of foreign scientists to the respondent it is apparent that the respondent had made a similar grievances to the foreign scientists who were colleagues and friends of the appellant. These letters have not only defamed him in the foreign countries but were responsible for the election of the appellant of a Hollow of Royal Society of London being delayed by a period of two years. As I have already observed the defamatory complaints and letters written to the employer and other authorities or colleagues constitute the worse type of cruelty. This has been held in a number of decisions referred to above.

24. The next cruelty alleged is the indifferent attitude of the respondent towards the relatives of the appellant and the respondent going to the extent of saying that the appellant must completely break of with his relatives and in particular with his father. The letter Ex, PW1/A dated 8th April, 1964 written by the respondent to the appellant is a clear proof of the said allegations. In the letter, it is mentioned :

“I had brought that I had made it absolutely clear to you when you came for the week end what I considered would be only solution with regard to my in-laws. I married you on the understanding that I would have nothing to do with them still on your persuation for 14 vears I have given them the benefit of doubt, but I have noticed that year by year the situation is growing progressively worse (as you yourself must realise). Their demands on our time, hospitality and money seem to increase as the years go on. And instead of reciprocating it by kindness and love, all our efforts being forth only schemes, plots and deceit. This mercenar attitude cannot be tolerated any longer now that everyone is on their feet or at least ought to be. Everyone seems well settled except Ajit who is 31 seems to prefer to live on his brother’s income than his own—that is why only the solution is a complete sewering of any connection with all of them.”

The respondent’s attitude towards the relatives of the appellant is also clear from the letter Ex, PW1/J dated 14-3-1979 written by Smt. Harinder, sister of the appellant, to the respondent. This letter is in reply to the letters PW1/E and some other letter of the respondent to Smt. Harinder dated 9 2-1979. She has written :

“I have been shocked and pained by your false and malicious accusations. You have not acted well in defaming and maligning my brother. I assure you my brother is incapable of telling lies. Only cowards lie. He has been tolerant of your intolerance of all his near and dear ones and therefore how could anybody believe that he could act in the way you have described.”

The letters of Priti, referred to above, clearly show that the children had full love and affections for their uncles and grand-father. The father of the appellant while writing to his grand children has also expressed his deep sorrow in not being allowed to spend time with his grand children at their place. This shows the attitude of the respondent towards her in laws. From the record, I cannot find anything against the relatives of the appellant which compelled the respondent to take such an attitude. The explanation of the respondent is that this was settled between the parties before marriage that the appellant will have nothing to do with his relatives. Such a settlement, in my opinion, can be arrived at by persons of unsound mind and I do not consider the appellant to be such a person. In the circumstances, I am unable to believe that there was any such agreement between the parties prior to their marriage which resulted in such an attitude taken by the respondent. The respondent is necessarily responsible for unhappiness of the appellant inasmuch his father and other relations were most unwelcome and she has gone to the extent of admitting in her letter referred to above that the relatives of the appellant were most unwelcome at their place. This also amounts to cruelty in law.

25. The next allegation of cruelty against the respondent is that she used to call the appellant as ‘Sikhra’ and serve beef on the dining table. As regards calling the appellant a Sikhra, it is stated by the appellant that the respondent did so in presence of so many relations of the appellant. Unfortunately the appellant has not produced any of these relations and I am left with the solitary statement of the appellant. In the circumstances, I do not consider that evidence to be enough to prove this allegation. As regards serving beef on the table, it is an adimtted fact that the children of the parties used to take beef and in these circumstances, this cannot be considered to the cruelty.

26. The other allegations of cruelty such as not attending and appellant during his illness etc., have also no merit because from the record, 1 do not find that the appellant was ever suffering from such a serious illness that the presence of the respondent was necessary. In any case, the illness was during the absence of the respondent from the country, and the respondent had shwon her concern by writing to Ashima Anand to look after the health of the appellant during her absence.

27. As regards the issue of desertion, the learned trial Judge has decided the same against the appellant mainly on the ground that the respondent admittedly continued to stay in the matrimonial home and it is the appellant who left the said house and as such the respondent cannot be held to be guilty of desertion. This approach, in my opinion, is unsound in law. The physical act of departure by one spouse from the matrimonial home, does not necessarily make that spouse the deserting spouse. However, the spouse which seeks dissolution of marriage on the ground of desertion much allege and prove that desertion was without sufficient cause and was with an object of bringing the cohabitation to an end. In the present case, it is the appellant who left the matrimonial home. He is the person who is seeking dissolution of marriage on the ground of desertion. It is for him to allege and prove that there was sufficient cause for him to leave the house or such circumstances had been created by the respondent which compelled by him to leave the house and he had no intention to bring cohabitation permanently to an end. Desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home, it may be that the spouse responsible for driving out, is guilty of desertion. It is an admitted fact that the appellant started living in a separate room though in the same house from January 1978. Till January, 1978 the question of maligning the appellant regarding his extra-marital activities had not arisen and as I have already said above the main dispute between the parties was regarding the relations of the appellant and the appellant and having enough time for the respondent or the family. These things, in my opinion, could not be considered to be enough for the appellant to leave the company of the family in its entirety. No doubt the allegations of immorality and extra marital activities were made in January, 1979 which compelled the appellant to leave matrimonial home and shift to another place but then the question arises of a period of two years. The present petition was filed in early 1980. If the period has to be counted from January, 1979 then obviously the statutory period of two years had not elapsed. However, of the period has to be considered from January, 1978 then the period of two years had elapsed. As I have already said the circumstances created were not such till January, 1978 which were sufficient for the appellant to leave the matrimonial home. I have to hold that the statutory period of two years had not elapsed on the date of filing of the present petition. In the circumstances, this issue has to be decided against the appellant. No other point has been argued before me.

28. For the reasons recorded above, the appeal is allowed and the marriage between the parties, is dissolved by a decree of divorce under section 27(1)(d) of the Spectial Marriage Act i.e. on the ground of cruelty. In the circumstances, the parties are left to bear their own costs.

Appeal allowed.

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