The administration of a potion by a wife to her husband, which causes him various health problems and puts his life in jeopardy, constitutes cruelty and gives rise to a reasonable apprehension of future harm, entitling the husband to a decree for judicial separation under Section 10 of the Hindu Marriage Act.

Shamsher Bahadur, J.

1. This is a husbands appeal from the judgment and decree of the District Judge, Delhi, dismissing has application under Section 10 of the Hindu Marriage Act for judicial separation from his wife, Shrimati Sarla Rani.

2. The parties were married to each other on 17th of November, 1948 and there are two issues of this union; a boy and a girl born in 1951 and 1953 respectively. The marriage does not appear to have been a happy one. Right from the middle of 1949, according to the petitioner, he received ill-treatment from his wife, whose real intention was to oblige her husband to leave his parents and set up a home with her parents at Ludhiana. This unhappy relationship reached a climax when some time after 15th of December 1951, the wife administered some kind of potion to the husband on the advice of some faqir with the ostensible object of bringing about domestic amity.

In paragraph 3 of the petition, the petitioner stated that she gave the petitioner some potions (Tawiz) which she represented were given to her by some faqir and would remove dissension and bring peace in the house. It is not clear how the contents of the tawiz were injected in him but an allegation was made that right from the beginning of 1952, the petitioner became ill with slow fever, giddiness and ultimately he got nervous breakdown, vomitings, loss in weight, abdominal burning, back-ache and developed heart trouble and various other complications.

Though the administration of this charm was denied in the written statement, the finding of the learned Judge is in favour of the husband and Mr. Umrigar the learned counsel for the respondent wife, has conceded that he would not be questioning the finding of the learned Judge on this point. It is thus, common ground that some kind of magical charm or tawiz or potion was administered to the petitioner-husband sometime in the end of 1951. This is the act of cruelty which is sought to be made a ground for judicial separation.

3. According to the respondent, the plea of cruelty is a mere camouflage to disguise the real intention of the petitioner which is to marry another girl who indeed is her own niece Pushpa, a daughter of her sister. It is denied that the tawiz was given with any malignant intention and she has throughout shown her great concern at the health of her husband which undoubtedly suffered as a result of the administration of the magical charm. The short question for determination is whether the act of the respondent constitutes such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will he harmful or injurious for him to live with her. This question has been answered in me negative by Mr. S. B. Capoor District judge (as Canoor J. then was) and the petitioner has come in appeal to this Court.

4. The term "cruelty" has never been defined and it has been designedly left by the judicial authorities to keep an elastic form to meet the necessities of the changed requirements and concepts of the society.

5. Before I examine the authorities which have been cited by the learned counsel, tt may be observed that the petitioner greatly suffered in. health and had to take advice from many doctors and hakims. Mr. Umrigar has brought to my notice that the petitioner himself made an admission in his examination-in-chief on 24th of December 1956 that "ultimately the doctors diagnosed my illness as being nervous breakdown due to domestic troubles." It is also clear that the wife suffered from qualms of conscience that the troubles of her husband were due to her foolish act in giving him the "love potion".

In Exhibit P. 4, she advised her husband to get himself treated at Kartarpur and exhorted him to give up the idea of medical consultation with doctors in Bombay. In Exhibit P. 8 also, which is a letter written by the respondent to one Tara, suggestion is made that her husband should be taken to Kartarpur. In Exhibit P. 6, which is a letter addressed by