N.G. Dastane v. S. Dastane (1975)

Three of the most-asked propositions in this paper come from this judgment: that the standard of proof in a matrimonial case is the ordinary civil standard and not proof beyond reasonable doubt; that cruelty is judged by its effect on this particular spouse and not on a hypothetical reasonable person; and that condonation is conditional forgiveness which can be revived by a fresh offence. It is also a case in which a husband established cruelty and still lost, because he had forgiven it — and because his own conduct afterwards disentitled him.

Both spouses held high academic qualifications. The husband, an agricultural scientist with a doctorate from an Australian university, was twenty-seven at the marriage; the wife, a science graduate who later took a master's degree in social work, was twenty-one. The marriage was arranged in April 1956 and performed at Poona on 13 May 1956.

Before the proposal was finalised the wife's father wrote two letters to the husband's father disclosing that she had suffered a bad attack of sunstroke which had affected her mental condition for a time, adding in the second letter cerebral malaria as a further reason, stating that she had been treated at a mental hospital and was cured, and inviting the husband's family to discuss the matter with the hospital doctors or with a named relative. That relative confirmed what the letters said, and no further enquiry was made. The letters were written, avowedly, so that the husband's family should not be in the dark about an important episode which had ended happily.

The marriage produced an extraordinary volume of correspondence between the spouses. The wife repeatedly admitted in writing to having behaved badly, to having insulted the husband, his parents, his sister and her husband, and asked forgiveness. The incidents relied on as cruelty included threats to end her own life and to set the house on fire; a threat to make him lose his job and publish it in the newspapers; the accusation that he was not a man, conveying that the children were not his; the tearing of the mangal-sutra; locking him out when he was due back from office; rubbing chilli powder on the tongue of an infant child; beating a child mercilessly while it was in high fever; and switching on the light at night and sitting by his bedside merely to nag him.

The spouses parted on 27 February 1961, by which date the wife was about three months pregnant, and a child was born in August 1961. The husband petitioned in February 1962 for annulment on the ground of fraud, or divorce on the ground of unsoundness of mind, or judicial separation on the ground of cruelty.

After the parting, the husband wrote repeatedly describing the wife as of unsound mind — to her, to her father, and to the Director of Social Welfare, in whose case the Court found that the only relevance of the statement was that he was preparing the ground for a decree. She replied offering to return to Poona if he made satisfactory arrangements, asserting that as a wife she was entitled to live with him, and undertaking to account for every rupee he sent. On 19 May 1961 she wrote to his Ministry making accusations against him and his parents. He told the Government she needed mental treatment and might have written in a frenzy, and elsewhere described her as schizophrenic.

The wife was guilty of cruelty, but the husband had condoned it, and her subsequent conduct did not revive the original cause of action. The appeal was dismissed with costs. The finding that his allegation of unsoundness of mind was baseless stood, leave to appeal against it having been refused.

1. The burden is on the petitioner; the standard is the civil one. The burden lies on the party who affirms a fact. The normal rule governing civil proceedings is that a fact is established if proved by a preponderance of probabilities. Proof beyond reasonable doubt is a higher standard which generally governs criminal trials, where the liberty of the subject is at stake and may not be taken away on a mere preponderance; such considerations are not imported into trials of a purely civil nature. Proceedings under the Act being essentially civil, the requirement that the court be "satisfied" means satisfied on a preponderance of probabilities, and the section imposing the bars does not alter the civil standard.

1. Cruelty is measured on this spouse. The question is not whether the conduct would be cruel to a reasonable person or a person of average sensibilities, but whether it would have that effect upon the aggrieved spouse. What may be cruel to one may be laughed off by another, and what is not cruel in one set of circumstances may be extreme cruelty in another. The Court deals not with an ideal husband and an ideal wife but with the particular man and woman before it, and in cruelty cases one can hardly even start with a presumption that the parties are reasonable people.

1. Ignore the trivial; weigh only what is grave. The reasonable wear and tear of married life must be ignored; temperamental disharmony or incompatibility is not cruelty and furnishes no cause for dissolution. Only grave and weighty incidents are considered, and their place on the marriage canvas assessed. The door of cruelty must not be opened so wide that divorce is granted for incompatibility of temperament.

1. But do not close the door either. This was not a case of mere austerity of temper, petulance of manners, rudeness of language or want of civil attention, which have to be suffered in silence as the price of an injudicious choice of partner. The pattern of behaviour was grossly excessive, and the acts complained of tended to destroy the legitimate ends and objects of matrimony. The test satisfied was whether the conduct caused a reasonable apprehension in the petitioner's mind that it would be harmful or injurious to live with the respondent; the threats were of so grave an order as to imperil his sense of personal safety, mental happiness, job satisfaction and reputation. Her frequent apologies were held to be not genuine contrition but devices to tide over a crisis.

1. Condonation must be considered even if not pleaded. The statutory bar obliges the court to find that the petitioner has not in any manner condoned the cruelty, and that obligation must be discharged even in undefended cases and even where, as here, the respondent never pleaded it.

1. Condonation means forgiveness and restoration. Two things are required: forgiveness of the matrimonial offence, and the restoration of the offending spouse to the position occupied before it. It does not consist in the mere fact that the spouses continued to share a home, because cruelty usually consists of a series of acts over time, and the law does not require a spouse to leave at the first cruel act lest continued cohabitation be construed as forgiveness — such a construction would hinder reconciliation. Here the evidence was that the spouses led a normal sexual life despite the acts of cruelty, and that raises a strong inference of both forgiveness and restoration. A stray act of intercourse after separation would be different, since it may bear more than one explanation.

1. Condonation is conditional, and can be revived. It is not a pardon that wipes out guilt beyond revival; a matrimonial offence is obscured but not obliterated. The implied condition is that no further matrimonial offence will be committed, and the fresh offence need not be of the same kind — condoned cruelty may be revived by desertion or adultery. The more serious the original offence, the less grave the subsequent acts need be to revive it.

1. But the condoning spouse gets no charter. Forgiveness does not entitle the condoning spouse to malign the other; otherwise the condoned spouse would have to submit mutely to cruelty without remedy. The wife's letter to the Government was provoked by his persistent and purposeful accusation, repeated times without number, that she was of unsound mind — an accusation the courts had found baseless — and by his protest that he was not liable to maintain her. Her conduct after condonation could not be viewed apart from his, and a single objectionable expression in her letter would not revive the condoned cruelty.

It opens any question on cruelty, on the standard of proof in matrimonial causes, or on the statutory bars to relief. Use the structure: burden and standard; the subjective test of cruelty; grave and weighty incidents only; then condonation, revival, and the conduct of the petitioner himself.

It disposes of the notion that a matrimonial charge must be proved beyond reasonable doubt, the notion that cruelty is measured against a reasonable person, and the notion that continued cohabitation is by itself condonation.

It does not decide the fraud or unsoundness-of-mind grounds in the petitioner's favour — both failed. Note the change in the statutory scheme: what was here a ground for judicial separation is now a ground for divorce under s. 13(1)(ia), and the later decision cataloguing instances of mental cruelty builds directly on this one.