Courts must examine and determine whether acts of cruelty were actually committed before deciding if such acts were condoned by the parties living together; a finding of condonation cannot supersede the requirement to evaluate evidence of cruelty.

(1) AGGRIEVED by the decision of the Division Bench of the Madhya Pradesh High Court, which had dismissed the appellants appeal and had upheld the decision of the Single Judge dismissing the appellants divorce petition and granting the respondents application for restoration of conjugal rights, this appeal by special leave has been filed.

(2) THE parties got married in 1982. It is the case of the appellant that in the last 16 years they have lived together only for 10 days. In 1984 the respondent filed an application for restoration of conjugal rights alleging that the appellant herein had deserted her. As a counter-blast the appellant filed a divorce petition contending that the respondent had committed such cruelty which gave him a right to ask for divorce. In support of the contention that the respondent was guilty of cruelty reliance was sought to be placed by the appellant, who was a Naib Tahsildar, on some letters which had been written by the respondent to the appellants superiors. It was the case of the appellant that the allegation contained in the said letter against him were false and baseless and this amounted to acts of cruelty.

(3) THE trial court accepted this contention and granted the decree of divorce. At the same time it dismissed the respondents application for restitution of conjugal rights.

(4) APPEAL was filed before the High Court and the same was allowed by a Single Judge of the High Court vide his judgment dated 18-11-1993. The Single Judge based his conclusion on a finding that the parties had lived together at Sagar Hotel, Indore and all the allegations of cruelty were in respect of a period prior to this. The Single Judge then observed that this act of the parties living together amounted to the appellant having condoned the earlier acts of cruelty and as there was no allegation with regard to any other acts of cruelty the divorce could not be granted. It also granted a decree for restitution of conjugal rights in favour of the respondent. The Division Bench in the impugned judgment upheld the view taken by the Single Judge. Hence this appeal.

(5) THE learned counsel for the parties have taken us to the record. We find that neither the Single Judge nor has the Division Bench considered the evidence on the record which would have enabled it to decide whether the respondent was guilty of committing any act of cruelty. The letters on the basis of which cruelty was sought to be established have not even been referred to by the Division Bench nor do they seem to have been analysed by the Single Judge. Both the courts did not appear to have gone into this aspect in great detail because they decided the appeal in favour of the respondent on the ground that the parties had lived together at Sagar Hotel at Indore and that amounted to an act of condonation. We have some doubt, on the basis of the evidence on record or the lack of it, whether this conclusion is correct and, therefore, it was important for the Single Judge as well as the Division Bench to have examined the evidence on record in order to determine whether the appellant herein had been able to prove that the respondent had committed such acts of cruelty which would entitle the appellant to get a decree of divorce.

(6) UNDER these circumstances we feel that it will be appropriate that the decision of the Single Judge and the Division Bench are set aside and Appeal No. FA 113 of 1992 is restored to the file of the High Court to be decided afresh by the Single Judge in accordance with law. The appeal is accordingly disposed of. There will be no order as to costs