Allegations of unchastity can constitute mental cruelty justifying divorce under the Hindu Marriage Act.

1. The present appeal is directed against the judgment and decree passed by the learned Extra Assistant Judge, at Bhavnagar in Regular Civil Appeal No. 37 of 1981, which in turn was directed against the judgment and decree passed by the learned Civil Judge, Senior Division, Bhavnagar in Hindu Marriage Petition No. 1/76. The appellant - wife had filed a petition against the respondent - husband for obtaining divorce on the ground of physical and mental cruelty. She alleged that the parties were married according to the Hindu rites on 24-1-1971 at Bhavnagar; that after the marriage she stayed with the respondent at his residence in Bombay up to 6-12-1973. Thereafter she returned to her parental home at Bhavnagar, where she gave birth to a male child on 8-7-1974. She had inter alia contended that the respondent - husband was behaving towards her in a cruel and wanton way; that she was subjected to great harassment and insult and that the respondent - husband had also inflicted mental cruelty by alleging that the appellant - wife was unchaste. She had further contended that the respondent - husband was not only sexually a deviant but a pervert and she was subjected to indecent indignities such as fellatio and cunnilingus, as also sodomy; that on account of the perverted sexual instincts of the husband she had suffered from physical and mental harm and that the marriage be dissolved.

2. The Respondent - husband resisted the petition and denied the allegations of physical as well as mental cruelty, allegations regarding his alleged sexual perversity and further alleged that the appellant - wife was of unchaste character and was maintaining extra marital relations with one Jitu Gandhi who was the respondent's friend. He, however, contended that the appellant had without any reasonal cause withdrawn herself from the society of the respondent - husband though the respondent was still ready and willing to keep her and maintain her as his wife provided she discharged her duty as a dutiful wife.

3. Though the pleadings are quite lengthy, the above is a short summary of the main points on which parties joined issue and the learned trial Judge after raising issues from the above pleading came to the conclusion that the appellant - wife had successfully proved that the respondent - husband had treated her with cruelty; that she was not taking advantage of her own wrong: that she had not in any manner condoned the cruelty of the respondent - husband. He, therefore, decreed the petition and granted divorce.

4. The respondent - husband being aggrieved by the same carried the matter before the learned Extra Assistant Judge, Bhavnagar by way of an appeal, who came to the conclusion that the allegations of unchastity made by the husband were as a counterblast to reckless allegations made by the wife regarding the sexual perversity of the husband; that there was justification as evinced from the evidence of the appellant's father herself; that she was in toe with the said Jitubhai Gandhi and the husband had in his evidence on oath stated that he was neither suspecting the chastity of the appellant - wife, nor was he doubting the paternity of the only child born of the wed - lock. He, therefore, allowed the appeal and the appellant - wife being aggrieved by the said order has carried the matter before this court by way of the present appeal.

5. At the time of the admission of the appeal the learned Judge framed the following substantial question of law :
"Whether the allegation of unchastity made by the husband against the wife amounts to mental cruelty to a degree which would entitle the appellant to get a