Honble KOKJE, J. – The Appellant aggrieved by the rejection of his application for a decree of divorce has filed this appeal. The appellant was married with the respondent in the year 1956. On 10.7.1986 an application under Section 13 of the Hindu Marriage Act 1956 (hereinafter called the Act) was filed by the appellant for a decree of divorce on the ground that the respondent was of unsound mind and was suffering from mental instability and it had become unsafe for the appellant to live with the respondent. The second ground on which a decree of divorce was sought was that the respondent has practiced cruelty against the appellant. The respondent denied the allegations. The appellant examined himself, his brother Shambhulal, the respondents brother Mangilal and two other witnesses Maheshwar Singh and Madhu in Support of his case. The respondent examined herself and two other witnesses Chatru and Bhagirath. (2). The learned Distt. Judge after assessing evidence did not place reliance on the evidence laid by the appellant and rejected the application for a decree of divorce. The learned Distt. Judge has observed that the marriage between the parties was solemnised in the year 1956 and 30 years after this marriage the application for divorce was made on the grounds which were said to have occurred four years prior to the making of the application that is in the year 1982. The learned Distt. Judge has observed that husband and wife have lived together happily for 25 years and had three issues, a son and two daughters. Aggrieved by the decision of the learned Distt. Judge the appellant has come up in appeal before this Court. The grounds on which the divorce is sought are covered by Secs. 13(1) (i-a) and 13(1) (iii). The provisions are reproduced below for ready reference. 13.``Divorce-(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party – (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Let us first take the grounds of cruelty. What has been alleged by the appellant against the respondent is that during the period of four Years Prior to the filing of the application for divorce the respondent was ill-treating the children and because of this the boy Ram Gopal left home and he was still untraceable. It was alleged that whenever and threatens and abuses him. A similar treatment is alleged to be given to the daughters also. It is note worthy that the appellant himself has pleaded that the aforesaid behaviour of the respondent was due to her mental imbalance and instability. Apart from the fact as the whether these allegations have been proved or not if the appellant himself has admitted that the cruel conduct of the respondent was due to her mental imbalance, it cannot be said that the respondent has practiced cruelty against the appellant. The words has treated the appellant with `cruelty occurring in Clause (i-A) and sub-sec. (1) of Sec. 13 of the Act postulate a voluntary treatment of cruelty and not involuntary actions under influence of a mental disorder. If something is done under a fit of insanity, however cruel the consequence may be to the petitioner, it cannot be said that the respondent had practised cruelty. When the respondent is alleged to have committed all the acts of cruelty because of her mental disorder, she cannot be held responsible for practicing cruelty on her husband. (3). In the evidence also whatever actions are attributed to the respondent have been attributed to have been done during the period when it was alleged that the respondent was suffering from mental disorder. The learned counsel for the appellant laid great stress on the fact that respondents own brother Mangilal had also stated that she was suffering from mental disorder and that she becomes violent at times. So far as the ground of cruelty is concerned since through out the allegations have been that the acts which would amount to cruel conduct were all committed during the period of respondent suffered from mental imbalance, it cannot be said that the respondent had voluntarily or deliberately treated the petitioner with cruelty. (4). So far as the ground under Clause (iii) of sub-sec.
(4). So far as the ground under Clause (iii) of sub-sec. (1) of Section 13 of the Act the learned counsel for the appellant tried to make out a case that the respondent was suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the appellant cannot reasonably be expected to live with the respondent. The other alternative of the respondent being incurably of unsound mind could not have been availed of by the appellant in absence of any medical evidence to that effect. So far as suffering from mental disorder is concerned it has to be of such a kind and to such an extent that the appellant cannot reasonably be expected to live with the respondent. No medical evidence has been produced in the case to show that the respondent was suffering from a mental disorder and that too of such a kind and to such an extent that the petitioner would not be reasonably expected to live with her. Moreover, in the facts and circumstances of the case when husband and wife have lived together for 25 years without any trouble and at the fag end of an otherwise successful and fruitful married life the wife has developed some ailment in the shape of mental disorder and is not behaving normally the husband is not expected to desert the wife but is expected to take care of her. Thus, even if the respondent is taken to be suffering from mental disorder it cannot be said that the disorder is of such a kind or to such an extent that the appellant cannot reasonably be expected to live with the respondent. Actually even if all the allegations are taken to be true, in such a case the husband is reasonably expected to live with the respondent rather than leave her along. (5). Moreover, when the allegations of ill-treatment and cruelty towards the children have also been made, the appellant was expected to examine his grown-up children in support of his case. The children could have thrown some light on the strained relationship between their parents and its causes.
(5). Moreover, when the allegations of ill-treatment and cruelty towards the children have also been made, the appellant was expected to examine his grown-up children in support of his case. The children could have thrown some light on the strained relationship between their parents and its causes. It has been observed in Mullas Commentary on Hindu Law that the standard of proof in case of all proceedings under the Act is that the Court must be satisfied on preponderance of probability that the ground of relief is proved and normally the Court requires that the evidence of a spouse who charges the other spouse with a matrimonial offence should be corroborated. Though the analogies and precedents of criminal law would not be applicable the Court would ordinarily be justified in requiring not as a matter of law but as a rule of prudence, that where possible corroborative evidence should be led in order to satisfy the Court that the allegations made are well founded. In the circumstances of this case it is not possible to accept the uncorroborated testimony of the husband who could have examined his children who could naturally be in the known of the facts on the basis of which treatment of cruelty could be inferred. (6). In the result, the appeal fails and is hereby dismissed. There shall, however, be no order as to costs.