Report No. 136
4.9. Why the Commission supports the view that the conduct of a spouse even subsequent to the institution of a matrimonial petition should be permitted to be examined.-
In the considered opinion of the Commission, the conflict on this vital issue deserves to be resolved by a clarificatory amendment of the relevant provisions of law so as to adopt the view propounded by the High Courts which have formed the opinion that conduct of a spouse should not be excluded from consideration merely on the ground that the conduct complained of is subsequent to the institution of the petition in point of time subject, of course to the rider that the court may insist on the concerned pleading being amended to bring the issue in focus.
If the subsequent conduct attributed to the concerned spouse is such that it has a bearing on the matrimonial problems brought before the court, there is no valid reason for refusing to examine the matter pertaining to such conduct. The court would naturally be expected to be anxious to do complete justice between the parties and would not be expected, to shut out or exclude matters, otherwise relevant, from examination. For, refusing to look into such matters is likely to result in being disabled to sort out the problems in a satisfactory manner or refusing to sort out some problems on hyper technical considerations.
The court cannot refuse to face facts by closing the door to the scrutiny of subsequent conduct. A few illustrations will be useful for proper comprehension of the issue. Take the case of a husband seeking a decree for restitution of conjugal rights. If subsequent to the institution of the petition, he assaults the respondent wife or levels accusations of adulterous conduct or starts living with a girl friend, can such subsequent conduct be excluded from consideration except at the peril of denying justice to the wife? Would the court consider it fair to proceed to pass a decree for restitution of conjugal rights in favour of the errant husband by adopting the 'hands-off-the-subsequent conduct' stance?