Condonation-matrimonial offence

Condonation means forgiveness of the 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, therefore, two things:forgiveness and restoration:The Law and Practice of Divorce and Matrimonial Causes by D. Tolstoy, Sixth Ed., p. 75. The evidence of condonation in this case is, in our opinion, as strong and satisfactory as the evidence of cruelty. But that evidence does not consist in the mere fact that the spouses continued to share a common home during or for some time after the spell of cruelty. Cruelty, generally, does not consist of a single, isolated act but consists in most cases of a series of acts spread over a period of time. Law does not require that at the first appearance of a cruel act, the other spouse must leave the matrimonial home lest the continued cohabitation be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the benign purpose of marriage laws.

The evidence of condonation consists here in the fact that the spouses led a normal sexual life despite the respondent’s acts of cruelty. This is not a case where the spouses, after separation indulged in a stray act of sexual intercourse, in which case the necessary intent to forgive and restore may be said to be lacking. Such stray acts may bear more than one explanation. But if during cohabitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. There is then no scope for imagining that the conception of the child could be the result of a single act of sexual intercourse and that such an act could be a stark animal act unaccompanied by the nobler graces of marital life. One might then as well imagine that the sexual act was undertaken just in order to kill boredom or even in a spirit of revenge. Such speculation is impermissible. Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment. Therefore, evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty. Intercourse, of course, is not a necessary ingredient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home. But intercourse in circumstances as obtain here would raise a strong inference of condonation with its dual requirement forgiveness and restoration. That inference stands uncontradicted, the appellant not having explained the circumstances in which he came to lead and live a normal sexual life with the respondent, even after a series of acts of cruelty on her part.

But condonation of matrimonial offence is not to be likened to a full Presidential Pardon under Article 72 of the Consituation 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.” See Words and Phrases Legally Defined (Butterworths), 1969 Ed Vol. I, p. 305 (“Condonation”). Since the condition of forgiveness is that no further matrimonial offence shall occur, it is not necessary that the fresh offence should be ejusdem generis with the original offence. See Halsbury’s Laws of England, 3rd Ed., Vol. 12, p. 306. Condoned cruelty can therefore be revived, say, by desertion or adultery.

Section 23 (1) (b) of the Act, it may be urged, speaks of condonation but not of its revival and therefore the English doctrine of revival should not be imported into matters arising under the Act. Apparently, this argument may seem to receive some support from the circumstance that under the English law, until the passing of the Divorce Reform Act, 1969 which while abolishing the traditional bars to relief introduces defences in the nature of bars, at least one matrimonial offence, namely, adultery could not be revived if once condoned. See Rayden on Divorce, l1th Ed. (1971) pp. II, 12, 23, 68, 2403. But a closer examination of such an argument would reveal its weakness. The doctrine of condonation was established by the old ecclesiastical courts in Great Britain and was adopted by the. English Courts from the canon law. ‘Condonation’ is a technical word which means and implies a conditional waiver of the right of the injured spouse to take matrimonial proceedings. It is not ‘forgiveness’ as commonly understood. See Words and Phrases Legally Defined (Butterworths), 1969 Ed., p. 306 and the Cases cited therein. In England condoned adultery could not be revived because of the express provisions contained in Section 3 of the Matrimonial Causes Act, 1963 which was later incorporated into Section 42 (3) of the Matrimonial Causes Act, 1965. In the absence of any such provision in the Act governing the charge of cruelty, the word ‘condonation’ must receive the meaning which it has borne for centuries in the world of law. See Ferrers v. Ferrers, (1791) 1 Hag Con 130 at pp, 130, 131. ‘Condonation’ under Section 23 (1) (b) therefore means conditional forgiveness, the implied condition being that no further matrimonial offence shall be committed. ‘

Refer: Dr. N. G. Dastane Versus Mrs. S. Dastane-AIR 1975 SC 1534 : (1975) 3 SCR 967 : (1975) 2 SCC 326

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