Rabindra Nath Mukherjee vs Iti Mukherjee @ Chatterjee on 22 January, 1991

    Rabindra Nath Mukherjee vs Iti Mukherjee @ Chatterjee on 22/1/1991

JUDGMENT

   Bhattacharjee, J.

   1. A petition under Section 13 of the Hindu Marriage Act, 1955 for
dissolution of marriage by a decree of divorce filed by the appellant-husband
against the respondent-wife on the ground of cruelty has been dismissed by the
trial Court on merits as well as on the ground of the petition having been
presented few days before the expiry of one year from the date of the marriage
in contravention of the provisions of Section 14(1). My learned brother
Banerjee, J. has, for the reasons stated in his judgment hereinafter, upheld the
decision of the trial Judge on merits. While I respectfully agree with the view
of Banerjee, J. that the petition has been rightly dismissed on merits and that
the alleged cruelty by the wife has not been proved. I have my doubts as to
whether the provisions of Section 14(1) prohibiting the entertainment of a
petition for divorce before the expiry of one year from the date of marriage is
that mandatory to require compliance with mathematical precision and to warrant
rejection for any and every non-compliance. The provisions of Section 14(1) are
reproduced herein below :

     "14(1) Notwithstanding anything contained in this Act, it shall not be
competent for any Court to entertain any petition for dissolution of a marriage
by a decree of divorce, unless at the date of the presentation of the petition
one year has elapsed since the date of the marriage.

     Provided that the Court may, upon application made to it in accordance with
such rules as may be made by the High Court in that behalf, allow a petition to
be presented before one year has elapsed since the date of the marriage on the
ground that the case is one of exceptional hardship to the petitioner or of
exceptional depravity on the part of the respondent, but, if it appears to the
Court at the hearing of the petition that the petitioner obtained leave to
present the petition by any misrepresentation or concealment of the nature of
the case, the Court may, if it pronounces a decree, do so subject to the
condition that the decree shall not have effect until after the expiry of one
year from the date of the marriage or may dismiss the petition without prejudice
to any petition which may be brought after the expiration of the said one year
upon the same or substantially the same facts as those alleged in support of the
petition to dismissed."

   2. These provisions and their counter-part in Section 29(1) of the Special
Marriage Act, 1954, are not Indian innovat ons, but are the results of blind
imitation, so often resorted to by us, of British Legislations. There is no
corresponding provision in the Indian Divorce Act of 1869 governing the
Christians or the Parsi Marriage & Divorce Act of 1936, governing the Parsis,
the obvious reason being that when those legislations were enacted, we had no
such provisions in the corresponding British Laws to serve as our guide or.
model. These provisions were introduced in United Kingdom for the first time by
the Matrimonial Causes Act of 1937, and continued to be retained in the
successive Matrimonial Causes Acts of 1950, of 1965 and of 1973. These
provisions came to be known as "Fair Trial to Marriage Rule", the avowed object
being to prevent hasty divorce proceedings resorted to rashly and in the heat of
passion and to require the spouses to give a trial to the marriage for a period
of three years so that the heated passion may spend up and calm of mind is
restored and marriages are maintained for the stability of the Society.

   3. It is not easy to appreciate the objects of these provisions. The Courts
have been mandated by the Legislature (vide. Section 23(2) & (3) of the Hindu
Marriage Act, Section 34(2) & (3) of the Special Marriage Act and now Section 9
of the Family Courts Act, 1984), to make every endeavour to bring about
reconciliation between the parties and that should go a long way to prevent rash
and hasty divorces. But otherwise, a blanket interdiction against initiation of
divorce proceedings may inflict unbearable miseries in a case, for example,
where one spouse finds the other to suffer from virulent and incurable leprosy
or veneral disease in a communicable from or to indulge in adultery and the
like. And if the societies of the Christians, the Parsis and also the Muslims
(whose women can also sue for divorce without any such waiting period under the
Dissolution of the Muslim Marriages Act, 1939), did not break down
notwithstanding the absence of any such provision in their matrimonial laws,
there could have been no good reasons to import these provisions from abroad in
the laws relating to Hindus and the persons marrying under the Special Marriage
Act, 1954.

   4. The Law Commission of India, under the Chairmanship of Justice
Gajendragadkar, an eminent Jurist and a former Chief Justice of India,
recommended the deletion of these provisions in its 59th Report on the Hindu
Marriage Act and observed (at paragraphs 2.31) as hereunder :

     "While we appreciate the legislative policy of placing an emphasis on
reconciliation rather than on a hasty divorce, we think that there should be no
restriction as to time. The Court will have, under Section 23(2), opportunity to
consider if the peace and harmony are beyond retrieval. If they are not beyond
retrieval, reconciliation under Section 23(2) will succeed, because Section
23(2) is intended to create condition for maintaining or restoring the mutual
confidence between the parties.

     We, therefore, recommend that Section 14 should be deleted."

   I have already indicated that, in my view, the utility of the provision of
Section 14 is very much doubtful, And the observations of the Law Commission of
India, extracted hereinabove also go to show that in the view of the Law
Commission also, the provisions serve no useful purpose, so much so, to warrant
deletion. I may be wrong, but I have no doubt that if a legislative provision is
that useless, it should, so long it exists, be construed to be directory and not
mandatory, unless such construction is not at all reasonably possible. I would
accordingly be inclined to hold that the provisions of Section 14 are not
mandatory as in my view the contrary construction is not irresistible.

   5. Mr. Roy Chowdhury appearing for the petitioner-husband has urged that it
is the settled law that even though a right was inchoate at the date of the
commencement of the Us, the proceeding for its enforcement would nevertheless be
maintainable, if the inchoate right has matured into a full-fledged one during
pendency of the proceeding. Mr. Roy Chowdhury is undoubtedly correct and the
authorities of this Court and also of the apex Courts, referred to and followed
in the Division Bench decision of this Court in (1) Krishna Chandra v. Hart
Sadhan, (86 Calcutta Weekly Notes 105) are binding authorities for this view.
But I do not think that this view can be straightway pressed into service in
this case because, as pointed out in Krishna Chandra (Supra, at 107), those were
cases where there was bar to the proceeding being initiated by the parties
before the expiry of certain period, but "no express statutory bar on the
tribunal entertained" the proceeding. But, going by the latters, Section 14(1)
appears to impose a bar on the Court to entertain, the relevant words being, "it
shall not be competent for any Court to entertain any petition .....unless at
the date of the presentation of the petition one year has elapsed since the date
of the marriage".

   6. The expression "entertain", however, as pointed out by the Supreme Court
in (2) Laxmiratan Engineering Works and in (3) Hindusthan Commercial Bank , may
not necessarily mean receiving or accepting the plaint or the petition, or the
initiation of the proceeding, but may mean "adjudicate upon" or "proceed to
consider on merits". Therefore, if the relevant expression in Section 14(1) was
"it shall not be competent for any Court to entertain any petition unless one
year has elapsed since the date of the marriage" I would have held that all that
is necessary is the expiry of one year, not necessarily before the presentation
of the petition, but before the date on which the Court adjudicates thereon or
proceeds to consider on merits. But the express user of the word "presentation"
in the expression "unless on the date of the presentation of the petition one
year has elapsed since the date of the marriage" nakedly stands in the way of
such a construction and I regret my inability to delete the words "on the date
of presentation of the petition" by any amount of judicial activism.

   7. But the reasons that are weighing with me for holding these provisions to
be directory and thus to require substantial compliance only, and not to be
mandatory warranting strict adherence on pain of rejection or dismissal, are as
hereunder.

   8. The period of three years, as originally enacted by the Legislature, has
now been reduced to one year only by the Amendment Act of 1976. That, in my
view, clearly indicates that the Legislature itself has been convinced that the
period provided for "fair trial" to marriage was unduly long and required
circumscription,

   9. If the Legislature considered this "fair trial rule" to be of that great
importance and of that paramount necessity for the stability of marriage to make
it mandatory, it would have inserted similar provisions in the other matrimonial
legislations also by way of later amendments. It may be noted that the
Legislature has amended rather extensively the Parsi Marriage & Divorce Act,
1936 but without inserting any such analogous provision. If the Legislature
really intended the provisions to be that mandatory, it would have a fortiorari
inserted such provisions in the other matrimonial legislations, with Article 14
of the Constitution mandating equal protection of laws and Article 15
interdicting any discrimination on the ground of religion. If Hindu 'Marriages
and Special Marriages warranted protection of "fair trial rule", the Christian
or the Parsi marriages cannot be discriminated by denial of such potection.

   10. The Proviso to Section 14(1) would also indicate that the provisions
requiring intervention of one year between the date of marriage and the date of
presentation for petition for divorce are not that mandatory. The Proviso
provides for leave to the parties by the Court to present petition before the
expiry of such period on the ground that the case is of exceptional hardship to
the petitioner or of exceptional depravity on the part of the respondent. But
the proviso proceeds to provide that at the trial "if appears to the Court at
the hearing of the petition that the petitioner obtained leave to present the
petition by any misrepresentation or concealment of the nature of the case, the
Court may, if it pronounces a decree, do so subject to the condition that the
decree shall not have effect untill the expiry of one year from the date of the
marriage.........". Now a leave obtained by suppress veri or suggestio falsi
should be treated as vitiated to the extent of being not est, and the Proviso,
therefore, provides that "the Court may dismiss the petition" but without
prejudice to any petition which may be brought after the expiry of one year as
aforesaid. But since the Court may also decree the petition only with the rider
that the decree shall not be operative before one year from the date of the
marring.', the petition, though filed before the prohibited period of one year,
and that too on misrepresentation or concealment, stands fully legalised and
regularised and the prohibition that the decree shall not be effective until one
year from the date of marriage may itself become of no practical effect or
utility as in contested divorce cases, a decree is seldom available before that
period, notwithstanding the directive' in Section 21B(2) of the Act.

   11. A premature petition presented with leave wrongfully obtained is no
better, if not worse, than one presented without leave, and if such a tainted
petition can nevertheless be decreed, then I am yet to know why premature
petition, without any such taint, cannot be similarly decreed. Once the
Legislature has been found to have permitted decreeing of a premature petition
founded on leave obtained dishonestly, the provision in Section 14(1)
prohibiting presentation of petition before the prescribed period cannot be held
to be that mandatory to warrant rigid compliance, and must be held to be
directory to require substantial compliance only. For, to hold otherwise would
amount to rule that law favours the dishonest maneuverer and discriminates
against the honest errant.

   12. There is yet another way of looking into the matter. While I do not
suggest that the Legislature, or even the Judiciary, goes or can always afford
to go in a common-sense course, we must, whenever possible, interpret laws in a
common-sense way and by importing a little bit of common-sense, whenever
necessary. Now, Section 14(1) does not at all provide for any waiting-period for
a matrimonial proceeding for judicial separation which can be decreed only on
grounds which justify divorce, nor for dissolution of marriage by a decree of
nullity under Section 11. Now, while pregnancy of the wife per alium at the time
of marriage is a ground for nullifying the marriage under Section 11, pregnancy
per alium after the date of marriage is a ground for divorce under Section 13
and, therefore, for judicial Separation also under Section 10. Judicial
Separation is very often a stepping stone to a divorce and, more often than not,
a decree for Judicial Separation serves, as the foundation for a decree of
divorce under Section 13(lA)(i). From the matrimonial point of view, a post-
marital per alium pregnancy is obviously more deprecable than a premarital one
and if the aggrieved husband intending to proceed for divorce on the ground of
post-marital per alium pregnancy of the wife is still mandatorily required to
give a "fair trial" to the marriage for one year, I do not understand why a
husband shall be relieved therefrom when he proceeds to sue the wife for
Judicial Separation on the same ground or to sue the wife for a declaration of
nullity on the ground of per alium pregnancy of the wife at the date of
marriage.

   13. Then again, under the provisions of Section 23A, if one spouse sues the
other for, say, restitution of conjugal rights or for Judicial Separation, the
other spouse may not only oppose the relief sought, but may himself or herself
claim for any relief, including divorce, on the ground of the suing spouse's
adultery, cruelty or desertion. One can, therefore, easily visualise a case
where one spouse has sued the other for restitution or Judicial Separation
within, say, a month from the date of marriage and the other spouse on entering
appearance within, say, one month thereafter, makes a claim fir divorce in the
written statement. As at present advised, I have my doubts as to whether the
provisions of Section 14(1) would stand in the way of such a counter-claim.

   14. At any rate, a petition for Judicial Separation is no within the ambit of
Section 14 and, as already noted, under Section 13A, the Court, in a divorce
proceeding on the ground of cruelty, as is the case before us, may grant
Judicial Separation. A petition, even though labelled as one for divorce, should
not therefore be rejected on the ground of having been presented before one year
from the date of marriage, but the Court should proceed to trial in order to
ascertain whether the materials on record would justify a decree for Judicial
Separation. As the Supreme Court observed is (4) Pratap Singh v. Shri Krishna
Gupta, , the tendency of the Courts towards

   technicalities or formalities are to be deprecated for it is the substance
that must count and must prevail and take precedence over form. A party's
bonafide right to Judicial Separation cannot be scuttled in limine solely on the
ground that the party, on legal advice or otherwise, brought himself within the
prohibition of Section 14(1) by labelling his or her petition as one for
divorce.

   15. The Division Bench decision of this Court in (5) Smritikana v Dilip
Kumar, (AIR 1982 Calcutta 247), cannot, on a careful reading, be construe ed to
have laid down any contrary proposition, but, on a meaningful reading would go
to support the ratio of my view. There also the Division Bench after holding the
petition for divorce to be not maintainable on the ground of having been filed
within about 61/2 months from the date of marriage, nevertheless proceeded to
consider as to whether a decree of Judicial Separation could be awarded. It is
true that, a already noted, under Section 13A, a decree for Judicial Separation
can be awarded "on a .petition for dissolution of marriage by a decree for
divorce". If the Division Bench held Section 14(1) to be that mandatory, then it
would have had to hold that the petition, as one for divorce, being beyond the
competence of the Court to entertain, there was no legal and proper "petition
for dissolution of marriage by a decree of divorce", on which alone a decree for
Judicial Separation could be awarded under Section 13A.

   16. To go back to the decision of the Supreme Court in Pratap Singh v. Shri
Krishna Gupta , some rules are so important and fundamental that they go to the
root of the matter and must be treated as mandatory and any non-compliance
therewith would vitiate everything. Some are not that fundamental and even
though mandatory in form substantial compliance therewith would be good enough.
In the absence of the "fair trial" rule in the Indian matrimonial legislations
for the Christians, the Parsis, the Muslim women and also in the absence of any
such provision even in the Hindu Marriage Act or the Special Marriage Act for
matrimonial proceedings for Judicial Separation and for declaration of nullity,
and for the other reasons stated hereinbefore, I have not been able to pursuade
myself to hold that Section 14(1) is that mandatory to warrant rejection or
dismissal of the petition presented without rigid and strict compliance thereof.
I would rather hold them to be directory to require substantial, but no literal,
compliance. This aspect was not considered by the Division Bench in Smritikana
v. Dilip Kumar (Supra), but there is nothing contrary either to the view I
propose to take.

   17. In Smritikana (Supra), as already noted, the petition was filed even
before the expiry of 7 months from the date of marriage. In the case before us,
it was filed only about 9 days before. That is enough substantial compliance Law
does not take notice of trifles.

   18. I would, therefore, hold that the trial Judge was wrong in holding and
dismissing the petition as not maintainable. As however I agree with my learned
before Banerjee, J. in holding that the trial judge was right in dismissing the
petition on merits on the ground that the allegations relating to cruelty were
not proved, I agree with the order of Banerjee, J. that the appeal should be
dismissed.

   Banerjee, J.

   The question as to whetherer the bar, imposed under Section 14(1) of the
Hindu Marriage Act, 1955 (called the Act) in respect of petitions for
dissolution of Marriage by a decree of divorce filed prematurely, is absolute or
not is not free from controversy and while questioning the wisdom of the
legislature, the circumstances giving rise to such controversy have been dealt
with exhaustively by My Lord Bhattacherjee, J. in the preceding paragraphs. I
find no reason to take a contrary view in that regard.

   20. It appears that the learned Trial Judge dismissed the suit both on merits
as also on the ground of its non-maintainability. Although the disposal of the
suit on both the issues was not illegal, it was not proper and legitimacy should
not be confused with propriety. Still, as there are findings on the merits of
the petition and as because we entertain doubts as to the true import and impact
of Section 14(1) of the Act, it becomes necessary to enter into the merits of
the petition for divorce and to see whether the petitioner could succeed in
getting a decree as prayed for. We propose to discuss only those facts which are
germane for this purpose.

   21. The petitioner Rabindra Nath Mukherjee, a Commerce Graduate working in a
Bank, was married to the respondent Iti on the 4th December, 1979 according to
Hindu rites. At the time of their marriage, which was a negotiated one, Rabindra
Nath was 34 years old and Iti 19. On the following day, that is on 5th December,
the petitioner brought his wife to his place of reidence at Makardah within
district Howrah where he used to live jointly with his widowed mother P.W. 3
Binapani, brother P.W. 4 Madan, his wife and their children P.W. 5 Ranjit and
P.W. 6 Kalpana. 'Phulsajya' Ceremony took place in the groom's house on 6th
December. The petition for divorce starts with the narration of two incident
stated to have taken place in the petitioner's house on that night. It is
alleged that the petitioner was surprised to see "the ugly and silly behaviour
of the respondent towards her brother-in-law before the petitioner's relations
who had to move away'. The second one is alleged to have occurred when the
petitioner got his wife exclusively in the bed-room after the formalities of the
ceremony were over. At the earliest opportunity, as the petitioner (P.W. 1)
states, the respondent wife firmly demanded in a commanding tone that (1) the
title of the house must be transferred in her name; (2) she was to be made
nominee in respect of the LIC policy and Provident Fund and (3) henceforth the
monthly salary of the petitioner was to be handed over to her. The petitioner
tried to pacify his wife without success and when he approached her she
violently pushed him back and insisted that the won't allow "the conjugal Union"
until the demands were fulfilled. While after the first incident the petitioner
was surprised at the shameless behaviour of his wife, on the next occassion he
was shoked and dis-appointed. The story of both the incidents is liable to be
rejected because of its improbability and absurdity. It is inconceivable that a
newly-married girl could "hug and Kiss" her 'Jamaibabu' (elder sister's husband)
before the very eyes of his wife and the petitioner's relations. Even if she had
any immoral affair with his Jamaibabu, she must not have displayed such a
shameless behaviour before the full house. D.W. 2 Mukti (Iti's Jamaibabu) has
cetegorically denied any such incident having taken place that night and the
photographs with the smiling faces of the couple, admittedly taken after the
alleged incident, belie the statement of the petitioner in regard to the alleged
ugly incident. It is unfortunate that the petitioner dragged the teenagers. P.W.
5 Ranjit and P.W. 6 Kalpana, to the Court to support such a false story.

   22. The next incident relating to certain demands made by Iti is also
improbable and unbelievable. It is impossible to hold that a girl of 19 would
venture to press for the demands to her husband aged 34 on the very first night
and would insist on fulfilment of those demands before the husband could touch
her body. That the story of both the incidents aforesaid is false would be
further evident from the discrepancies between the averments made in the
pleading and the statements made by P.W. 2 at the trial. Thus, while in
Paragraph 13 of the petition it was alleged that on 27th January, 1980 Iti for
the first time, disclosed that, "she had her first happy sex experience with one
of her relations" in his deposition the petitioner (.P.W. 2) indulged in saying
that on the 'Phaulsajya' night (612.79) the wife had given out that she loved
another person and asked the petitioner not to touch her body. Again, while in
the petition it was alleged that on the very first night Iti grew furious and
behaved rudely in his deposition P.W. 2 did not mention about the violent
temperament of his wife on that night. The petitioner has examined his elder
brother Madan (P W 4) to corroborate his statements regarding the 'Phulsajya'
night incidents. His evidence is that on 7th morning Rabin (Petitioner) came out
of his room weeping and reported that Iti did not allow him to touch her body
and she had told that she had already taken Mukti Mukherjee, husband other
Nanidi, as her husband He also reported about the demands made by Iti. It has
already been pointed out that the story of the "Phulsajya' night incidents is
improbable and false and accordingly the corroboration of the alleged incidents
by P.W. 4 does not deserve consideration at all.

   23. In the petition for divorce the petitioner made various complaints
against the respondent and with reference to certain incidents on certain dates
he tried to make out a case he feared that he might be killed by his wife and
that it was impossible for him to live with such a woman any longer. The gist of
such incidents, between 7.12.79 and 5.10.80, which the petitioner described as
the period of utmost misery, is this:-(1) on 10th December respondent's second
brother instigated his sister within the hearing of the petitioner that he
(brother) would kidnap Rabin and Iti and force them to live in his house; (2) on
12th December when the petitioner had been to his father-in-law's place on
invitation, he was insulted by Iti's parents who insisted that Robin must live
in his father-in-law's house at Gharjamai; (3) on 18th April and 29th October
the respondent kicked the petitioner and physically assaulted him with fists and
blows: (4) In October that year the respondent assaulted her mother-in-law and
left the matrimonial home with cash and ornaments; (5) on 14th October the
petitioner was attacked by his brother-in-law and his associate while he was
returning home from the office; (6) on 4th and 15th October the father-in-law of
the respondent and her relations visited the petitioner's office and threatened
the petitioner; (7) on several dates in November, 1980 the respondent and her
relations incited some local people and tried to ransack the petitioner's house.

   24. With regard to the incidents referred to in paragraphs 17 and 21 of the
petition, there is no corroboration. Even P.W. 1 who claimed to be a colleague
of the petitioner does not state anything about the alleged threatening by the
father-in-law inside the petitioner's office. No neighbour has been examined to
prove the incidents dated 16th and 19th November. P.W. 1, a colleague of the
petitioner, speaks nothing about the relationship between Robin and Iti. Is it
not surprising that the petitioner, who had been subjected to severe mental
agony for more than eleven months, would not give vent to his feelings to his
colleague working in the same branch ? As regards the accusation of physical
assaults on Robin by Iti, P.W. 4. Madan has stated that Robin had reported that
he was kicked twice on the belly by Iti, who also throttled her husband and on
another occasion Iti pressed Robin's testicles and on the last occasion she hit
him on the chest with a glass. P.W. 3 Binapani speaks about the incidents when
Iti kicked Robin and pushed Binapani on the ground. P.Ws. 5 and 6 have stated
about the incidents on two occasions. On a careful scrutiny of the evidence of
the P.Ws. we are satisfied that the story of physical assault by Iti on Robin is
a fabrication. It appears that in the petition there is mention of assault on
two occasions only and there is no allegation that the respondent ever hit the
petitioner with a glass or pressed his testicles violently. P.W. 3 simply stated
that Iti threw a glass of water at Robin. She does not speaks about the physical
assault on Robin, although P.W. 4 Madan has testified that on hearing the alarm
raised by Robin on some occasions he along with his mother rushed to his room
and got the report of assault by Iti on Robin. P.W. 4 is not truthful and so
also the petitioner himself. That the allegations made in the petition are
totally false would be evident from the circumstances set out below. It is
alleged that on 5.10.80 Iti assaulted her mother-in-law and left the matrimonial
home along with her parents and relations as a result of which Binapani fell
down on the ground and became unconscious. The homeopath doctor who is said to
have treated the lady has not been examined. If the incident dated 5.10.80 did
at all occur in the manner alleged, then after nine days, that is on 14th
October, the mother-in-law could not have showered plenty of love and blessings
on her bouma (Iti) through the letter marked Ext. A. The authenticity of the
letter has not been challenged by the petitioner or by his mother. The alleged
incident dated 5th October is strongly contradicted by the statement made in
Paragraph 15 of the petition which shows that on 29th October Iti assaulted
Robin his house with fists and blows. The respondent herself and her father
(D.W.5) and brother (D.W. 4) have categorically denied the material allegations
made in the petition and in view of the contradictions and discrepancies
appearing in the petition and in the evidence we find no reason to disbelieve
them. Robin's mother tried to canvass simple that "the relationship between
Rabin and bouma was not at all good. Bouma's behaviour with Robin was also bad".
P.W.s 5 and 6 have also stated that the quarrel between Chotokaka and Kakima was
a 'daily affair'. Even if Iti was quarrelsome and short tempered, in the absence
of any convincing proof that the wife's conduct was so grave so as to endanger
the husband's personal safety and destory his mental peace, the said conduct by
itself would not constitute legal cruelty within the scope and meaning of
Section 13(1)(ia) of the Act, because as observed by their Lordships in the case
of (6) Dastane v. Dastane, , "Passion and petulance have perhaps to be suffered
in silence as the price of what turns out to be an injudicious selection of a
partner". The natural wear and tear in the married life may not be taken note of
seriously. It appear that from 5.12.79 till 5.10.80 the respondent wife lived in
her matrimonial home with occasional visits to her father's place. Is it
probable or believable that despite her shameless and cruel behaviour she would
be allowed to stay in the matrimonial home for such a long period or that the
man would simply weep on each occasion when he as assaulted by his wife? Thus on
weighing various probabilities, we find that the preponderance is against the
petitioner and accordingly the suit is liable to be dismissed. We find no reason
to interfere with the findings of the learned trial Judge on the merits of the
petition for divorce. The result is that the appeal fails and the same is
dismissed, but in the circumstances of the case, without costs.