Judgment :- 1. We have before us, a tragic story of an immature indiscretion. A boy and a girl belonging to respectable families brought together in matrimonial alliance, living a happy life for sometime after marriage separated on account of an indiscreet conduct of the girl after marriage. Parties belong to the community known as Gowdasaraswatha Brahmins. The marriage was held at Payyannur on 3 21968. Thereafter the couple moved over to Quilon where the husband was employed as Assistant Manager of the Syndicate Bank. While so in April 1968 the husband came to read a letter written by his wife to one Madhavan Nambiyar at Madurai. This letter was given by the wife to one Sarada, a servant maid, for being posted. It was an inland cover. The servant-maid's curiosity got the better of her loyalty and so she seems to have opened the letter and read and enjoyed it. It is the husband's case that she gave the letter to him mentioning that getting suspicious of the contents of the letter she opened it and read it. The letter was dated 30 3 68 and was addressed to Sri Madhavan Nambiyar. This Nambiyar, it has turned out in the evidence, was one known to the wife-respondent when she was at Payyannur and he too was staying there. The letter, Ext. P1 described Nambiyar as respondent's first husband really meaning that he was her first lover. The petitioner's case is that he was shocked and stunned by the letter of the respondent who even before she was out of the thrills of the honeymoon had chosen to be so deceptive. The respondent's father at Payyannur was contacted by telegram to go over to Quilon immediately. The father did not come, but her brother, sister and two other relatives came to Quilon in a car on 16th April 1968 and the petitioner insisted that the respondent must be taken away with them. They were shown the Inland letter she had written and thereafter they took her away with them. Though the respondent seems to have written letters to the petitioner thereafter admitting the genuineness of Ext. P1 he was not in a position to forget the conduct of his wife. They were shown the Inland letter she had written and thereafter they took her away with them. Though the respondent seems to have written letters to the petitioner thereafter admitting the genuineness of Ext. P1 he was not in a position to forget the conduct of his wife. According to him he could not think of reconciling with the wife for the rest of his life, a wife who treated another as her husband and evinced subsisting affection towards him. The conduct of the wife is characterised as cruel and deceitful. He would say that such a girl would have no compunction or reluctance to commit any act of cruelty or deception on him thereafter. According to him he even apprehended that if she lived with him his life would be in danger. Joint residence as husband and wife, according to him, would only lead to further discord and resultant calamities. Therefore he seeks judicial separation. The wife has a different story to tell. Her husband, according to her, had never behaved normally towards her. He is said to have embarrassed her by asking her annoying, if not insinuating, questions all through the honeymoon days. He was, according to her, a doubting Tom suspicious of anything and everything that she did. Ext.P1, she would say, was quite an innocuous letter attempted to be deliberately distorted and misread. She had, according to her, no husband other than the petitioner and she had exhibited affection to none other than him. Her subsequent letters to the petitioner were not, according to her, a confession, as the petitioner would, try to picture them, but only letters intended to pacify the husband and earn his love and sympathy. It may be mentioned here that after the separation a female child was born and that was on 19 111968. The child has, all along, been living with the mother. 2. That Ext. P1 was written by the wife admits of no doubt and in fact the attempt is only to explain Ext. P1 and not to deny the authorship thereof. This is addressed to K. V. Madhavan Nambiyar, 68, Madura Medical College Hostel, Madura-3. The sender's name is written as K. V. Susheela Nambiyar. The respondent's name is Susheela. She is not a Nambiyar but is a Gowdhasaraswatha Brahmin girl. P1 and not to deny the authorship thereof. This is addressed to K. V. Madhavan Nambiyar, 68, Madura Medical College Hostel, Madura-3. The sender's name is written as K. V. Susheela Nambiyar. The respondent's name is Susheela. She is not a Nambiyar but is a Gowdhasaraswatha Brahmin girl. The letter is addressed to Nambiyar as "My dear".The letter as seen translated by the lower court, which translation is not objected to, reads: "You would not have expected this letter for I had told you that it would be my last letter. Yes am[th<< I can never forget you. I am now with my second husband. My first husband was yourself because you were the first to touch my body. Even now I dream of you. I still wear the bra (brassiere) which you had given me. One I have kept in your memory. How is the kerchief which I had given. Is it torn? When are you going to Payyannur? Is it in April? When you go there you must remember me. I will be going in August. It is only one month since I came here. My marriage was on February 3rd. Husband is employed as a Manager in a Bank. We are shortly coming to Madura, most probably in May. Will you be then in Madura or at the native place. Can I see you, at the native place. While at home I always wait for you; till the'mail' time is over. Even now I am waiting for you. I still remember the song of Aman. It is the the song which I love best. When you next hear it remember me. You should not hereafter love anyone and spoil your name. Never forget me. I must meet you when I come there in August. You must be there. O. K. The respondent, besides admitting that she has written the letter also admits that she gave it to Pw2. But her explanation is that the letter was written not with a view to post it to Madhavan Nambiyar but for being handed over to the petitioner. A very ingenious explanation has been given for handing over such a letter to the servant-maid. But her explanation is that the letter was written not with a view to post it to Madhavan Nambiyar but for being handed over to the petitioner. A very ingenious explanation has been given for handing over such a letter to the servant-maid. Because the petitioner was always worrying her by asking questions about her affection towards others, and asking whether she loved anyone else or whether anyone else at any time touched her, she wanted to embarrass her husband t Pmdmim3 which she later, explains as meaning Ifnbmim3 . She would say that the letter dated 30th March, 1968 was entrusted to the servant-maid with direction to hand over the letter to her husband on 1st April 1968. The suggestion is evidently that this was a practical joke to be played on the husband on the "April Fool's Day". That Madhavan Nambiyar is not a fictitious person is admitted. According to her he was a friend of her elder brother. She would say that she got the address of Madhavan Nambiyar from a College Magazine. Her evidence indicates that this Madhavan Nambiyar was staying with his uncle in a house belonging to her father in the same premises where her family house also stood and Madhavan Nambiyar was an old time friend. They had been chummy for many years and she used to call him "Madhavetta". In the evidence she would say that on the afternoon of the 1st of April she asked the petitioner whether he had received a letter and on his replying that he had not, she questioned Pw2 about it when the latter-said that she had forgotten and would give it the next day. The next day also she is said to have questioned Pw2 as to whether she gave the letter to the petitioner. Pw2, according to her, replied that she had given it, but there was no sign of the husband having read it. When questioned again Pw2 told her that she could not hand over the letter to the petitioner as she had mislaid it somewhere. She would say that till the 16th of April when her brother and others came to Quilon and took her away she had no idea that the petitioner had received the letter. This is too tall a story to be believed without any further evidence. She would say that till the 16th of April when her brother and others came to Quilon and took her away she had no idea that the petitioner had received the letter. This is too tall a story to be believed without any further evidence. Pw2, the servant maid, speaks to the usual practice of the respondent handing over letters to her for posting. She would say that while Ext. P1 letter was being taken by her to be posted, her cousin, one Anandhi, saw it, that despite her objection Anandhi opened the letter and read it and it was she who suggested handing over the letter to the petitioner. She would say that she happened to go to Trivandrum with her kinfolk and the petitioner and respondent had been on a visit to Cape Comorin. That is why Ext. P1 happened to be handed over only after a period of 10 or 12 days. In spite of the evidence of Pw2 and the petitioner as pw.1, the respondent bases her story on the "April Fool's Day", a case, which, as the court below has rightly said, is difficult to accept. There is nothing to show that at any time earlier the petitioner had pestered the respondent with questions about her character. Her case that the petitioner did not purchase sarees and other articles she wanted also does not appear to be true. Her evidence itself indicates that sarees and brassieres had been purchased for her by her husband. They had gone to the theatre, visited a friend at Alleppey, made a trip to Cape Comorin and also to Trivandrum. They had a plan to visit Madurai. There is a reference even in Ext. P1 letter of the proposed visit to Madurai. The respondent had studied only upto the 8th Standard. She admitted that while she was in Quilon the petitioner used to teach her English and Arithmetic and even set her questions when he left for the Office. The couple seems to have settled. down in Quilon by about 15th February. 1968 and they lived together up to 16th April 1968. The evidence indicates that during the short period the husband had behaved towards the respondent as a normal husband should. Therefore the reason for writing Ext. P1, that it was a sequel to his conduct all along, does not sound to be true. down in Quilon by about 15th February. 1968 and they lived together up to 16th April 1968. The evidence indicates that during the short period the husband had behaved towards the respondent as a normal husband should. Therefore the reason for writing Ext. P1, that it was a sequel to his conduct all along, does not sound to be true. We have no hesitation in agreeing with the court below that Ext. P1 letter was written by the respondent and handed over to Pw2 not for purpose of practising a joke but for the purpose of posting it to her friend Madhavan Nambiyar with whom she had been quite close earlier. 3. If the letter Ext. P1 was intended to be posted to the addressee, that discloses certain facts. It mentions that the said Madhavan Nambiyar was the first to touch the respondent's body which suggests that they were in intimate relations. She cherishes the brassieres given by'Madhavettan' to her more than possibly all that her husband had got for her. She evinces a desire to meet him, she evinces to carry on correspondence with him and seeks that Madhavettan should not forget her. Possibly it could be said that the letter evidences the continued desire on the part of the respondent to be on the same intimate terms as she was with him earlier. 4. While having sexual relationship with a person other than one's own husband during matrimony may be a ground for seeking a decree for judicial separation, could it be said that a wife who is shown to have been in intimate relationship with another prior to the marriage is not entitled to the marital company of her husband? Could a husband seek a decree for judicial separation merely by showing that his wife was unfaithful to him prior to his marriage? We. think not and we must say, in fairness to counsel for the petitioner Sri. S. Easwara Iyer, that he concedes that this is so. Could it be said that if the wife continues to entertain the same feelings of affection and love towards the one with whom prior to the marriage she had illegitimate connection that would be a ground for judicial separation? S. Easwara Iyer, that he concedes that this is so. Could it be said that if the wife continues to entertain the same feelings of affection and love towards the one with whom prior to the marriage she had illegitimate connection that would be a ground for judicial separation? At best what has been proved in this case is that the attitude of the wife is one which evidences deep feelings of affection to her lover whom she calls a husband or rather her first husband. It goes without saying that any husband would be shocked on reading a letter addressed by his wife to another in such intimate terms. But could it be said to be a sufficient ground for judicial separation? Could it be said to amount to cruelty which would justify a decree for judicial separation? This, in short, is the question which we have to decide here. While cm the facts of the case the court below has found that the petitioner's plea is true, it has been further found that in law this may not give relief. It has also been found that the fact that the respondent wrote Ext. P1 letter which reflected her attitude towards her husband as well as her lover at that moment that will not serve as a ground, under the provisions of Hindu Marriage Act, for the Court to grant a decree for judicial separation. It is the correctness of this view that we are called upon to examine in this case. 5. Parties are governed by Hindu Marriage Act. S.10 (1) of the Act provides that either party to a marriage, whether solemnized before or after the commencement of the Act may present a petition to the District Court praying for a decree for judicial separation on one or other grounds stated in the section. It is ground (b) of the said sub-section (1) of S.10 that is relied on in this case, which reads: "(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;" Though cruelty has not been defined in the Act the very sub-section indicates what would be cruelty within the meaning of the provision. Cruelty must be such as to cause apprehension in the mind of the petitioner that it will be harmful to live with the other party or cruelty may be such as to cause apprehension in the mind of the petitioner that it will be injurious for the petitioner to live with the other party and the apprehension must be reasonable. We feel that this does not reflect in exact terms what is understood as cruelty in English Law. The Divorce Reform Act, 1969 abolished the grounds for divorce laid down in the Matrimonial Causes Act, 1965 and provided that the sole ground. on which a petition for divorce might be presented to the court on or after 1st January, 1971 by either party to a marriage shall be that the marriage has broken down irretrievably. S.2 of that Act provides that the court may not hold that the marriage has broken down irretrievably unless the petitioner satisfies the court of one or mote of the following facts: (a) the respondent has committed adultery; (b) the respondent has behaved in such a way that the petitioner cannot reasonably be expected to Jive with the respondent; (c) the respondent has deserted the petitioner for a continuous period of two years and more; (d) the parties to the marriage have lived apart for a continuous period of at least two years and the respondent consents to a'decree being granted; : (e) the parties to the marriage lived apart for five years. While as the law now stands S.2 (1) (b) of the Divorce Reform Act 1969 provides for behaviour in such a way that the petitioner cannot reasonably expect to live with the other spouse as a justifiable cause, as the law stood earlier cruelty had to be established and to establish cruelty it was necessary to show injury or apprehension of injury to life, limb or health. Possibly in the light of the change in the law, in English Courts, cruelty may not require proof of injury or apprehension of injury to life, limb or health for the purpose of a successful action for divorce. 6. In the English Courts cruelty had been defined as wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental or such conduct as to give reasonable apprehension of such danger. 6. In the English Courts cruelty had been defined as wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental or such conduct as to give reasonable apprehension of such danger. Reference may be made in this context to Russell v. Russell (1897 A.C. 395), Gollins v. Gollins (1964 A.C. 644)'and Williams v. Williams (1964 A.C. 698). Tolstoy, in his Treatise on Divorce analyses the tests to satisfy cruelty. This is stated thus: "Since Gollins v. Gollins and Williams v. Williams there are two tests which must be satisfied for cruelty to be established: first, is the conduct complained of sufficiently grave and weighty to warrant the description of being cruel? and, secondly, has the conduct caused injury to health or reasonable apprehension of such injury? Only the first test is relevant for establishing unreasonable behaviour which falls within S.2 (1) (b)." As the law stands in England today, it may not be necessary to establish cruelty but it is sufficient to show the conduct of the other spouse to be such that the petitioner cannot be reasonably be expected to live with that spouse. The question whether adultery and attempt at adultery would be a sufficient ground is considered,in this context in Rayden's "Law and Practice in Divorce and Family Matters", 1971, 11th Edn. at page 207: "lesser sexual matters, including unsuccessful attempts at adultery or the like and the making of false allegations in regard to sexual matters, may equally justify the petitioners allegation that he or she cannot reasonably be expected to live with the other spouse". 7. We are referring to the provisions of the English Law only to indicate that it may not be correct to apply the decisions of the English Courts without appreciating the difference between the law of that country and the provisions of the Hindu Marriage Act in force in India. We are particularly mentioning this because in some reported cases in India, the English Law as it is, has been considered and applied without noticing the difference that may possibly exist between the two in view of the language of S.10(1) (b) of our Act. The English definition of cruelty may be inapt to a case under the Hindu Marriage Act because of the departure from the language of the definition in English decisions as to what amounts to cruelty. The English definition of cruelty may be inapt to a case under the Hindu Marriage Act because of the departure from the language of the definition in English decisions as to what amounts to cruelty. While under the Hindu Marriage Act it is necessary to show that the treatment of the petitioner is such as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party, it is not further necessary to show that such injury would be to the health, life or limb, bodily or mental. Injury or harm may include cases other than that of injury and harm to one's body, limb or health. One can conceive of harm such as harm to reputation and social position. A person will be seriously harmed if he is socially ostracised or boycotted. 8. In the context of consideration of the scope of the term cruelty as employed in S.10(1)(b) of the Hindu Marriage Act one has to consider whether the injury or harm which a petitioner complains of by reason of the conduct of the wife is such as would come within the provision of that section. Attempt has been made by the court below to examine the scope of th6 act of the respondent in writing Ext. P1 letter to her lover after her marriage. To. say that it was cruel towards the husband in the sense it was harmful or injurious to his life, limb or health would be too farfetched. Possibly keeping the English definition of the term cruelty the petition was framed. The petitioner elaborates the cruelty pleaded in his evidence. It would appear that the case developed is that a woman who has the audacity to write a letter to her lover and hand it over to a servant-maid for being posted would not desist from doing away with the life of her husband. We do not think we can go so far. As we indicated at the beginning of this judgment, the conduct of the wife was due to an immature indiscretion on her part. Matrimony is sometimes an adventure and one knows not what is in store. Quite often the marital life takes a peaceful course. But now and then accidents do occur. We feel that one such has occurred in the case before us. Matrimony is sometimes an adventure and one knows not what is in store. Quite often the marital life takes a peaceful course. But now and then accidents do occur. We feel that one such has occurred in the case before us. Possibly what the respondent did, she might not have done after a few months, after she became a mother in the normal course and when she settled down to lead a housewife's role in her home. She would have then forgotten her pre-marital affections. The story here might have been different had the letter not fallen into the hands of the petitioner. But when once the petitioner noticed it, and he took up the matter with the parents of the girl, it would have by that time become a talk of the town. In a community which is sensitive and which may view such moral deviations as abominable and as inexcusable aberrations, it may be difficult for the parties thereafter to face the society and live in it as before. The Gowdasarswatha Brahmins in the Kerala State is a minority, and they are a community which for historical reasons, had lived aloof as a distinct class without integrating themselves into the general mass. In such a close knit and possibly conservative group traditionalism and orthodoxy may have relevancy and we may not be surprised at the plea that the society is too sensitive to accord respectability to an erring wife or to receive her and her husband as respectable. The plea now urged is that the petitioner will face social boycott by taking back his wife. Whether that would be sufficient to say that, irrespective of the pleadings, the conduct of the offending spouse has caused such harm as would bring the case within S.10 (1) (b) is another matter. We are not examining this in this case because as the pleadings now stand the petitioner's case is one of apprehension of bodily harm and danger to life. With that we are not impressed as the court below was not. We do not think that the continuance of the respondent in the petitioner's house may endanger the petitioner's life, whatever else it may result in. Therefore on the ground taken we are inclined to agree with the court below and we do so. 9. With that we are not impressed as the court below was not. We do not think that the continuance of the respondent in the petitioner's house may endanger the petitioner's life, whatever else it may result in. Therefore on the ground taken we are inclined to agree with the court below and we do so. 9. But a petition has been moved before us seeking amendment of the petition for judicial separation. Possibly inspired by the elaborate hearing at the bar counsel has advised the petitioner that he ought to have pleaded his case differently. The amendment that is sought for is to aver that besides what has been said there are other consequences also as a result of the offending conduct of the wife. Reference is made to, the outlook of the community, the attitude of the mother and such other factors which according to the petitioner would render life impossible for him, faced as he would be with the prospect of social ostracism and boycott of the company of kith and kin. Possibly this is a ground relevant under the provisions of the Hindu Marriage Act. The question therefore is only Whether we should disallow the petition because it is belated. It is true that the petition has been pending for many years. The difference between the spouses is not easy to be resolved and we do not know where the parties would stand in regard to continued marital life even if we dispose of this petition merely on the ground that the petitioner has not averred what he should have if his case as now urged is his real case. We have bestowed our anxious thought over the fate of this litigation. We have considered the pros and corns of a remand to enable the amendment sought in this court to be made by the petitioner to his petition. We feel that in the circumstances of the case and in the interests of justice it is necessary to allow the petitioner to amend his petition so that the real issues in the case may come up for trial. "We, therefore, allow the amendment petition. We set aside the order of the court below and remit the case back to the trial court. The trial court will deal with the petition in accordance with law and in the light of our observations herein. "We, therefore, allow the amendment petition. We set aside the order of the court below and remit the case back to the trial court. The trial court will deal with the petition in accordance with law and in the light of our observations herein. The matter being one which ought to have been closed long ago and that having taken a good number of years, we would direct the court below to give a very expeditious disposal to the case posting it from day-to-day once it reaches the stage of trial. At any rate, the petition is to be disposed of within 6 months from the date of receipt of records by the court below. Parties will suffer their respective costs in this appeal.