The main legal point established in the judgment is that in matrimonial cases, the concept of legal cruelty must consider the impact of the conduct of one spouse on the other, and the test for 'cruelty' in such cases should be whether the conduct causes injury to health or an apprehension of it, as determined by a reasonable person considering the particular circumstances.

1. The husband aged 62, who is a Hindu, petitioned for judicial separation against his wife aged 48, who is a Roman Catholic Christian, on grounds of cruelty and adultery. The wife denied the allegations. The Additional District Judge, Ernakulam dismissed the petition finding that the husband has not proved, both the grounds. The appeal is filed against the said decision.

2. The parties were married in Delhi on the 22nd day of April 1948 before the Registrar of Marriages under the provisions of the Christian Marriage Act. There are three daughters born to them after their marriage and they are Sudha, Geeta and Uma aged 16,14 and 8 years.

3. At the time of marriage, the husband was Deputy Controller of Rubber in the Government of India. Towards the end of April 1948, the wife left for her native place at Trivandrum. The husband was in Delhi till the beginning of 1949 when he was transferred to Calcutta where the wife joined him. They were residing in Calcutta as husband and wife till the 2nd of 1951, when the husband resigned the Government job and joined Dunlop Rubber Company at Kottayam. The parties were residing in Kottayam till the middle of 1955. The office of Dunlop Rubber Company was thereafter shifted to Cochin and the parties were from 1956 residing in Ernakulam.

4. The husband's case is that from1959 onwards the wife was conducting herself towards him with great harshness and cruelty and frequently abusing him in the coarsest and most insulting language, that she has on some occasions physically assaulted him, that on several occasions she had locked him out of the house compelling him to take residence in hotels at Ernakulam, that on account of her frequent violent outbursts he had to admit the children in St. Teresa's Convent in Ernakulam, that before the date of the petition she had left him and has been staying in Trivandrum where she is living in adultery, that her behaviour subjected to him to frequent emotional upsets which has caused in abnormal increase in his blood pressure and that it is not possible for him to endure her any more.

5. While denying the allegations of the, husband, the wife stated that the husband is addicted to alcoholic drinks, he used to return home late hours in the night and abuse her and children and sometimes even beat her, that he used to stay on some nights in hotels for boozing and that the children have been admitted in the Convent to improve them in their studies. The wife would allege that the husband stayed with her in Trivandrum for three days in September 1966 when he had sexual relationship with her.

6. In a rejoinder, the husband has denied his staying with the wife for three days in September 1966 and stated further that normal marital life with the wife had been impossible since 1959.

7. The learned counsel for the husband fairly conceded before us that the evidence regarding the plea of adultery is very meagre and that he is withdrawing the said averment. He therefore confined his attack to the finding of the learned judge that cruelty has not been proved.

8. Though there was some dispute in the trial court, it was agreed before us that the provisions of the Indian Divorce Act (IV of 1869) apply to the parties and the appeal was argued on that basis. S.22 and 23 are the relevant provisions S.22 reads:

"No decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion without reasonable excuse for two years or upwards, and such decree shall have effect of a divorce a mensa et toro under the existing law, and such other legal effect as hereinafter mentioned."

Section 23 reads:

"Application for judicial separation on anyone of the grounds aforesaid may be made by either husband or wife by petition to the District Court or the High Court; and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal grou