Marriage and Divorce Law

Condonation

Cruelty cannot be found on the basis of several acts so seen in isolation but have to be treated and construed in its entirety. The task of the trial court is to appraise the evidence and construe the cruelty on the basis of several acts of cruelty. In determining an issue, if necessary, parties may be given an opportunity to produce additional evidence. The test of legal cruelty is that any conduct which would make married life physically or otherwise impossible. Mental cruelty can even cause more grievous injury in the mind of the injured spouse, reasonable apprehension that it will be impossible or unsafe to live with other party. The conduct alleged must also be viewed from the angle of victim’s capacity or incapacity for endurance is so far as that is, or ought to be known to the offending spouse. Cruelty is generally in its character is a cumulative charge. It may be a conditional forgiveness but it does not mean that condoned spouse shall submit to cruelty of other spouse. For condonation is not only forgiveness, forgiveness is condonation when it results in restoring the offending spouse in former position. For condonation is not merely forgiveness, but its conditions includes that in future no matrimonial offence shall occur. So, forgiveness is condonation when it results in restoring offending party in former position.

There must be pleadings as regards condonation and without such pleadings, the court cannot on its own, presume condonation of the matrimonial offence, in as much as, condonation has a special meaning in matrimonial matters. For the purpose of showing that the respondent was guilty of cruelty and for that purpose the standard of proof applicable in criminal trial is not required as in matrimonial cases. Section 10 (i) (h) give reasons that by virtue of this Section the broad test is whether the petitioner spouse can not reasonably be expected to live with the respondent. Accordingly, the matrimonial offence, if committed, by the respondent, would not only constitute physical cruelty but also mental cruelty and there will be no legal or factual warrant for the trial court to come to the finding that there had been a condonation of the offence complained of. For condonation, there are two ingredients, the petitioner must forgive and the respondent must allow the said offence to be condoned. The fact that the respondent was permitted and allowed to live under the same roof, would not mean that the offence has been condoned.

Where the acts looked together show that the respondent was guilty of cruelty and said cruelty stood amply substantiated by corroboration of different witnesses. To prove a matrimonial offence and establish it, strict corroboration is a matter of precaution and not of law. So, the word ‘cruelty’ even if not mentioned in the pleadings can be proved from the facts stated in the pleadings. The proof of fact as required in the criminal cases, is not necessary in a matrimonial proceedings, when the court is satisfied on the evidence adduced before it that a case has been made out under Section 13 and further more if the court is satisfied on the basis of the materials on record, a decree in favour of the petitioner can be passed. Section 23 (i) (b) deals with the scope as regards satisfaction of the court and there it has been indicated it can be based on preponderance of probabilities. The legal concept of cruelty is comprised of two elements, firstly, the ill-treatment complained of, secondly, the resultant danger or apprehension thereto and thus the expression ‘cruelty’ comprehends both mental and physical cruelty. The matrimonial offence cannot be treated as condoned even on analogy of the liberal and broad test. The Section prohibits such presumptions and warrants that the satisfaction of the court must be founded upon legal evidence.

The Sequence of events should show that matrimonial offence committed by the respondent, was duly and effectively condoned by the petitioner. This is the very basis and foundation of pleading condonation. Generally, the fact of condonation cannot be proved by direct evidence and the question is decided on satisfaction of court on preponderance and probabilities that the cruelty was condoned. There must be foundation both factual and legal, for accepting the plea that cruelty has been condoned. One thing is certain that evidence must satisfy the conscience of the court that cruelty has been condoned if condonation is sought to be proved by circumstantial evidence.

Section 23 (1) (b) and Cruelty. The word condoned means to overlook an offence by acting as if it had not been committed. Condonation may be implicit in the act of cohabitation. When concoction is not pleaded in defence by respondent, yet it is duty of the trial court under Section 23 (1) (b), to find out whether the cruelty was condoned by the petitioner. This section costs an obligation on the trial court to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief on ground of cruelty can be decreed only if the court is satisfied that the petitioner has not in any manner condoned the cruelty. To defeat the case of the petitioner, it is necessary that there should be evidence on the record of the case to show that the petitioner had condoned the cruelty. The Supreme Court in Dastane V. Dastane, analysed the contents of the concept of condonation. Condonation means forgiveness of matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be tow things; forgiveness and restoration. Law does not require that at the first appearance of a cruel act, the other spouse must leave the matrimonial home lest the matrimonial intercourse should be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the benign purpose of the marriage laws. It is, therefore, necessary that condonation of matrimonial offence cannot be taken at par with the Presidential pardon under Article 72 of the Constitution which, once granted wipes out the guilt beyond the possibility of revival.

Condonation is always subject to the implied condition that the offending spouse will not commit a fresh matrimonial offence, either of the same variety as the one condoned or of any other variety. No matrimonial offence is erased by condonation. It is obscured but not obliterated. Since the condition of forgiveness is that no future matrimonial offence shall occur, it is not necessary that the fresh offence should be ejusdern generis with the original offence condoned. Cruelty can, therefore, be revised by act of desertion or adultery.

Condonation under Section 23 (1) (b) therefore means conditional forgiveness with the implied condition that no further matrimonial offence shall be committed. Condonation is a conditional forgiveness but the grant of such forgiveness does not give to the condoned spouse a charter to malign the other spouse. If this were so, the condoned spouse would be required mutually to submit to the cruelty of the other spouse without relief or remedy. Condonation of the matrimonial offence is not mere forgiveness. Condonation consists of factum of reinstatement and of animus remittendi.

Condonation is also a word of technical import, which means and implied a conditional waiver of the right of the injured spouse to take matrimonial proceedings. In essence, condonation is reconciliation. The intention to remit the wrong can be gathered from the attending circumstances. To constitute condonation, there must be express or implied forgiveness by a husband of the wife or by a wife of the husband. However, it is something more than forgiveness in that there is not only resumption matrimonial status but also it deprives the condoning spouse of the right thereafter to seek relief.

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