Secondary evidence, mental cruelty and specific pleading of desertion shape divorce relief and alimony

Secondary evidence is admissible only after proper foundational proof of the original's non-production and authenticity of the copy; without that foundation, a photostat copy cannot be relied on. In matrimonial adjudication, the wife's persistent hostility, public humiliation and unfounded allegations were held to constitute mental cruelty on the totality of circumstances, sustaining the divorce on that ground. Desertion, however, is a distinct ground that must be specifically pleaded and proved; a finding of desertion was rejected where the petition was based on cruelty alone. Permanent alimony was enhanced to secure a reasonable standard of living and dignity for the wife and child.

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Issues: (i) Whether a photostat copy of a letter could be admitted as secondary evidence without foundational proof of the original's non-production. (ii) Whether the wife's conduct amounted to mental cruelty justifying dissolution of marriage. (iii) Whether a decree of divorce could be sustained on the ground of desertion in the absence of a specific pleading. (iv) Whether the quantum of permanent alimony required interference.

Issue (i): Whether a photostat copy of a letter could be admitted as secondary evidence without foundational proof of the original's non-production.

Analysis: Secondary evidence of a document is admissible only when the conditions for non-production of the original are satisfactorily established and the copy is shown to be a true copy of the original. Mere summoning of the document and denial of its existence by the person in possession does not dispense with the requirement of laying the necessary foundation. In the absence of such proof, admission of the photostat copy was legally unsustainable.

Conclusion: The photostat copy was inadmissible as secondary evidence.

Issue (ii): Whether the wife's conduct amounted to mental cruelty justifying dissolution of marriage.

Analysis: Mental cruelty in matrimonial law depends on the totality of circumstances and the effect of conduct on the spouse's dignity, reputation and emotional security. The evidence, apart from the excluded photostat copy, showed persistent hostility, humiliation in public, unfounded allegations against the husband and conduct inconsistent with normal matrimonial harmony. The concurrent factual findings were neither perverse nor unsupported by the record.

Conclusion: The husband established mental cruelty.

Issue (iii): Whether a decree of divorce could be sustained on the ground of desertion in the absence of a specific pleading.

Analysis: Desertion is a distinct matrimonial ground and must be specifically pleaded and proved. The divorce petition was founded on cruelty and did not contain a specific case of desertion. In those circumstances, the concurrent finding of desertion could not be sustained.

Conclusion: The finding of desertion was rejected.

Issue (iv): Whether the quantum of permanent alimony required interference.

Analysis: Permanent alimony must be fixed having regard to the status of the parties, their social needs, the earning capacity of the husband and the need to secure a reasonable standard of living for the . Considering the financial and social position of the parties and the circumstances noted in the record, the earlier amount was enhanced to secure proper sustenance and dignity for the wife and the child.

Conclusion: The alimony was enhanced.

Final Conclusion: The decree of divorce was sustained on the ground of mental cruelty alone, the finding on desertion was set aside, and the wife was granted enhanced permanent alimony. The appeals failed to secure reversal of the divorce decree.

Ratio Decidendi: Secondary evidence cannot be admitted without proper foundational proof, mental cruelty in marriage must be assessed on the totality of conduct and its impact, and desertion cannot be upheld without a specific pleading and proof.

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