2. As is plain from the report the matter was sent back to the trial Court with the direction that the husband be allowed to amend his petition for divorce and a specific issue be framed with regard to the allegations of adultery made by the wife as false. In accordance therewith the learned trial Judge allowed the parties to amend their pleadings and the requisite issue was recast as issue No. 3 which is as follows:-
"Whether the allegations of adultery made in the written statement against the petitioner are false, if so, its effect?"
3. As is clear from the report above referred to the burden of proof for the issue was on the husband which had to be discharged negatively. The allegation of adultery as made by the wife had then to be substantiated. The learned trial Judge permitted the parties to lead evidence thereon. It goes without saying that the onus on the husband being very light he discharged it by denying the allegation. The wife on the other hand could not discharge her burden successfuly. The learned trial Judge then went on to observe:-
"On consideration of evidence on the record it goes to show that the allegations could not be substantiated and they are unfounded and baseless"
4. Relying on the proposition that when unfounded allegations of immorality were levelled against the spouse it amounted to 'legal cruelty' to the other, he held that the husband was entitled to dissolution of marriage on that score alone. He relied upon a few judgments of this Court for the view adopted as also the report of the Division Bench case afore-referred.
5. It was then argued before the learned trial Judge, as has been done here, that in order to succeed in the petition the husband further had to prove the damaging effect of the false allegations, wherefrom alone would it be determined whether the charge of 'cruelty' was established. The learned trial Judge rejected the plea taking the view that in the nature of things the levelling of a false accusation was by itself a ground to hold 'legal cruelty'. The wife-appellant herein, against whom the decree for divorce was passed on such ground, has challenged that view.
6. The term 'legal cruelty' as known to matrimonial law is that item of cruelty which the law recognises as an instance. Making a false allegation of adultery by one spouse against the other is an instance of 'legal cruelty'. That is to say it has inherently an element of cruelty and the law recognises it. Other instances of objectionable human behaviour can easily be multiplied. From time to time they have come to the notice of the Courts and off and on been given the title of cruelty, and have unquestionably been followed by Courts precedent-bound. But elemental cruelty does not ipso facto meant that it would entitle the aggrieved spouse to a relief. And to be precise relief under S. 13(1)(a) of the Hindu Marriage Act. The ground of divorce now available to the petitioning spouse is that the other party has after the solemnization of marriage treated the petitioner with cruelty. It does not ipso facto mean that the petitioner has only to allege and prove that the respondent has indulged in act or acts which amount to 'legal cruelty'. But then he or she has further to prove that it was 'cruelty' satisfying the tests of the Hindu Marriage Act. In that Act cruelty as a ground for divorce must mean cruelty of such a character as to cause danger to life, limb or health or to give rise to reasonable apprehension of such danger. After the 1976 amendment in the Hindu Marriage Act, cruelty as a ground for divorce has been brought at par with one existing in the Special Marriage Act. And under the Special Marriage Act the ground of curelty has always been understood to mean cruelty as it is understood under the English Law. The effect of Dastane v. Dastane AIR 1975 SC 1534 was nullified by causing the 1976 amendment in the Hindu Marriage Act. In Raj Kumar Manocha v. Smt. Anskuka Manocha 1983 Cur L. J. (Civ. & Cri.) 134, S. P. Goyal, J. relying on Madan Lal Sharma v. Smt. Santosh Sharma, 1980 Hindu L. R. 441 (Bom) summed up the position of law on the point with erudite clarity with which I am in respectful agreement.
7. The accusations instantly made by the wife-appellant even if proved to have been false would not ipso facto entitle the husband to have a decree for divorce unless there was a further finding that these were of such a grave character so as to cause danger to life, limb, health or to give rise to reasonable apprehension of such danger. The judgment under appeal is lacking in this aspect of the matter. Rather the learned trial Judge, as has been observed earlier, treated 'legal cruelty' to be 'cruelty' satisfying the provision of the Hindu Marriage Act. This would necessarily in the circumstances require a remand.
8. For the foregoing reasons, this appeal is accepted, the judgment and decree of the trial Court are set aside and it is directed to redecide the question in accordance with law keeping in view the observations afore-made. In the circumstances of the case there shall be no order as to costs. Parties through their counsel are directed to put in appearance before the trial Judge on 20-8-1984.
9. Appeal allowed.