Living together after cruelty, without any evidence to the contrary, raises a presumption of forgiveness and restoration of conjugal relations, amounting to condonation of the cruelty and barring a claim for divorce on that ground.

( 1 ) THIS appeal is directed against the judgement and decree dated 22-1-1990 passed by Distt. Judge, Damoh in Civil Suit No. 22-A/88 whereby the petitioner's (appellant/husband) petition for divorce has been dismissed on the ground of condonation.

( 2 ) THE admitted facts of the case are that the petitioner Devidas was married to Gyanwati alias Sheela Rani somewhere in 1988. They were living together in the paternal house of the petitioner where his other relations (father, mother and brother) were also living. There was some dispute. A panchayat was held. Thereafter petitioner and respondent separated from the joint family and lived together for about 7-8 months. During her residence as such the respondent was taken to her father's house by her father. She is living with her father till date.

( 3 ) THE petitioner filed a petition for divorce under S. 13 of the Hindu Marriage Act on 13-12-1988 with the allegations that while residing with him in his paternal house respondent tried to commit suicide twice. The respondent did not like to live along with the joint family. As such she was pressurizing him (husband) to ask for partition and wanted separate residence. Petitioner declined to do so and therefore she tried to commit suicide as stated above. It has further been submitted that this amounts to cruelty. The respondent is likely to commit suicide on some pretext and that may cause harassment to the petitioner and further a risk of prosecution as well.

( 4 ) RESPONDENT denied the allegations and contended that she was being forced to bring dowery from her parents. She was harassed by the petitioner and his relations. She was beaten by her mother-in-law and therefore she requested for partition and separate residence. Respondent denied to commit suicide and prayed for dismissal of petition for divorce.

( 5 ) LEARNED District Judge after trial has dismissed the petition on the ground that the petitioner has condoned the alleged cruelty and therefore is not entitled for decree of divorce. Hence this appeal.

( 6 ) COUNSEL for the appellant has submitted that there was no repentance on the part of the respondent. She has never expressed regret in her conduct. In order to avoid controversy petitioner agreed to live separately along with the respondent and therefore merely because they lived together for few months would not amount to condonation. It has also been submitted that the facts of condonation has not been pleaded by the respondent and therefore the same cannot be considered.

( 7 ) AS against it counsel for the respondent has submitted that firstly condonation was not required to be pleaded. Secondly if certain facts leading to condonation have been admitted by the petitioner himself then it requires no further pleading and proof.

( 8 ) FOR proper appreciation of condonation of the parties the relevant provisions of S. 23 is reproduced below :-"23. Decree in proceedings - (1) In any proceedings under this Act, whether defended or not, if the court is satisfied that - (a) ______________________________. (b) Where the ground of the petition is the ground specified in cl. (i) of Sub-Sec. (1) of S. 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petitioner is cruelty the petitioner has not in any manner condoned the cruelty. "

( 9 ) FROM the plain reading of S. 23 of the Act it is clear that if a party wants decree of divorce on the ground of cruelty, he is not only required to prove the facts of cruelty but is further required to show that he has not in any way condoned the alleged cruelty of the respondent.

( 10 ) THE petitioner appearing as P. W. 5 in the case has admitted in the later part of para 2 of his statement that there was a Panchayat in the presence of the father of the wife. Panchas advised them (petitioner and respondent) to separate from the joint family and live as such. They lived as such for abou