AJAYACHANDRA

v.

ANEEL KAUR

DECEMBER 2, 2004

[RUMA PAL, ARIJIT PASAYAT AND C.K. THAKKER, JJ.]

Hindu Marriage Act, 1955-Section 13-Petition for dissolution of

marriage-Ground of mental cruelty-Allegation of using abusive language

A

B

and making allegations of adultery against the spouse-Family court C

granting decree of judicial separation instead of decree for dissolution of

marriage in the interest of c;hildren-High Court held that cruelty not proved

as evidence not let

in order to prove the allegations-On appeal, held:

Decree for dissolution

of marriage liable to be passed as in the facts of

the case cruelty proved-Cruelty with reference to matrimonial cases should

be

of the type as to satisfy the conscience of the Court that the relationship D

between the parties deteriorated to such an extent due to conduct of the

other spouse that it would be impossible for them

of live together without

mental agony torture or distress-In determining mental cruelty nature

of

cruel treatment and impact thereof on the mind of other spouse has to be

enquired-However,

if the conduct is bad enough and unlawful or illegal, E

the impact need not be enquired into-In case of mental cruelty when there

is no direct evidence, Courts are required to probe into the mental process

and mental effect

of incidents that are brought out in evidence-The concept

of proof beyond shadow of doubt in order to prove cruelty in matrimonial

cases

is not applicable because such case is of civil nature-Evidence.

Words and Phrases :

"Cruelty"-Meaning of in the context of Hindu Marriage Act, 1995.

F

Appellant-husband filed petition u/s 13 of Hindu Marriage Act, G

1955 against respondent-wife seeking decree of divorce on the ground

of 'mental cruelty'. His case was that r~spondent had HI-treated him,

abused him

in vulgar language at home and at hospital (workplace) and

other places and suspected his fidelity and character

alleging adultery

with nursing staff which caused immense emotional stress and mental

H

599

600 SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R.

A agony. His case was also that had no physical relationship for two years.

Respondent

had filed caveats, but the same was lodged at wrong address

of the appellant. Respondent denied the allegations and stated that she

had full faith in her husband and that her bonafide advice to him to act

decently was misconstrued. Subsequent to filing of the divorce petition

B respondent had filed suits for injunction against the appellant in respect

of right to practice in the hospital and for use of certain portion of

hospital. In the execution petition she had prayed for attachment of

hospital equipments and also civil detention of appellant in case of

disobedience of order of injunction.

She showed her unwillingness to

C withdraw the application until divorce case was finalized. She had also

filed application for maintenance. Family

Court held that respondent

D

E

had made unfounded allegations which caused mental agony and

mental

cruelty to the appellant, but passed decree for judicial separation instead

of decree for divorce in view of welfare of children. Appell~nt as .. well

as

respondent filed

appeal against the order of Family Court. High

Court dismissed appellant's appeal. It allowed the appeal of respondent .

holding that cruelty was not established in as much as appellant had not

examined witnesses from the hospital to prove respondent using abusive·

language and making allegations against appellant of adultery with

nursing staff. Hence the

present

appeals.

Appellant-husband contended that mental cruelty was clearly

established; that mere non-examination of hospital staff could not be a

ground to discard cogent and credible evidence led by him; and that

since the marriage had broke down irretrievably, on that score alone

F decree of divorce should have been passed.

Allowing the appeals,

the Court

HELD : 1.1. Cruelty can be physical or

mental. Cruelty which is a

ground for dissolution of marriage may be defined as willful and

G unjustifiable conduct of such character as to cause danger to life, limb

or health, bodily or mental, or as to give rise to a reasonable apprehension

of such a danger. The question of mental cruelty has to be considered in

the light

of the norms of material ties of the particular society to which

the parties belong, their social values, status, environment in which they

H live. Cruelty includes mental cruelty, which

falls within the purview of

A. JAY ACHANDRA v. ANEEL KAUR 601

a matrlmonial wrong. Cruelty need not be physical. Iffrom the conduct ' A

of his spouse same is established and/or an inference can be legitimately

drawn that the treatment. of the spouse is such that it causes an

apprehension in the mind

of the other spouse, about his or her mental

welfare then this conduct amounts to cruelty. (607-G-H; 608-A-B]

1.2. The expression

'cruelty' has been used in relation to human

conduct

or human behaviour. It is the conduct in relation to or in respect

of matrimonial duties and obligations. Cruelty is a course or conduct

of one, which is adversely affecting the other. The cruelty may be mental

or physical, intentional or unintentional. If it is physical, the Court will

have no problem

in determining it. It is a question of fact and degree,

B

c

if it is mental, the problem presents difficulties. First, the enquiry must

begin as to the

nature of cruel treatment, second the impact of such

treatment in the mind of the spouse, whether it caused reasonable

apprehension

that it would be harmful or injurious to live with the

other. Ultimately, it

is a matter of inference to be drawn by taking into D

account the nature of the conduct and its effect on the complaining

spouse. However, there may be a case where the conduct complained

of itself is bad enough and per se unlawful or illega!. Then the impact

or injurious effect on the other spouse need not be enquired into or

considered. In such cases, the cruelty will be established if the conduct E

itself is proved or admitted. [608-E-F-G-H]

Sobh Rani v. Madhukar Reddi, AIR (1988) SC 121, relied on.

1.3. To constitute cruelty, the conduct complained

of should be

"grave and weighty" so as to come to the conclusion that the petitioner

spouse

cannot be reasonably expected to live with the other spouse, it

must be something more serious than

"ordinary wear and tear or

married life". The conduct, taking into consideration the circumstances

and background has to be examineci to reach the conclusion whether the

conduct complained amounts to cruelty

in the matrimonial law. Conduct

has to be considered

in the background of several factors such a social

status

of parties, their education, physical and mental conditions, customs

F

G

and traditions. It is difficult to lay down a precise definition or to give

exhaustive description

of the circumstances, which would constitute

cruelty.

It must be of the type as to satisfy the conscience of the Court H

602 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A that the relationship between the parties had deteriorated to such an

extent due to the conduct of the other spouse that it would be impossible

for them to live together without mental agony,

torture or distress, to

entitle the complaining spouse to secure divorce.

Physical violence is not

absolutely essential to constitute cruelty and a consistent course of

B conduct inflicting immeasurable mental agony and torture may well

constitute

cruelty within the meaning of Section

10 of the Act. Mental

cruelty may consist

of verbal abuses and insults by using filthy and

abusive language leading to constant disturbance of mental peace of the

other party. [609-A-B-C-D-E]

c

D

1.4. But before the conduct can be called cruelty, it must touch a

certain pitch of severity. It is for the Court to weigh the gravity. It has

to be seen

whether the conduct was such that no reasonable person

would tolerate it.

It has to be considered whether the complainant

should be called upon to endure as a part of normal human life. Every

matrimonial conduct, which may cause annoyance to the other, may not

amount to cruelty. Cruelty in matrimonial life may be of unfounded

variety which can be subtle

or brutal. It may be words, gestures or by

mere silence, violent

or non-violent. [609-F-G-H]

E s. Hanumantha Rao v. s. Ramani, (1999) 3 sec

620 and Dastane v.

F

Dastane, AIR (1975) SC 1534, referred to.

1.5. In delicate

human relationship like matrimony, one has to see

the probabilities

of the case. The concept, a proof beyond the shadow

of doubt, is to be applied to criminal trials and not to civil matters and

certainly not to matters of such delicate personal relationship as those

of husband and wife. Therefore, one has to see what are the probabilities

in a case

and legal cruelty has to be found out, not merely as a matter

of fact, but as the effect on the mind of the complainant spouse because

of the acts or omissions of the other. Cruelty may be physical or corporeal

G or may be mental. In physical cruelty, there can be tangible and direct

evidence, but in the case of mental cruelty there may not at the same

time be

direct evidence. Courts are required to probe into the mental

process and mental effect of incidents that are brought out in evidence.

It is this view that one has to consider the evidence in matrimonial

H disputes. [608-8-C-D-E)

A. JAY ACHANDRA v. ANEEL KAUR 603

2.1. In the legal and factual background that appellant is entitled to A

a decree of divorce. While the tri~I Court analysed the evidence in great

detail and found that the accepted stand of the respondent-wife regarding

her behavour and conduct caused mental agony and amounted to mental

cruelty, the High

Court did not discuss the evidence at all.

On the specious

ground

that witnesses from the hospital were not examined and, therefore, B

adverse inference was to be drawn. There was not even any discussion as

to how the evidence led was insufficient to establish mental cruelty. The

High

Court's view that if at all it was a fact that respondent was using

abusive language

and making allegations of adultery with nursing staff,

some witnesses from the hospital were necessary

to be examined is clearly C

indefensible. That alone should not have been made the determinative

factor to discard evidence on record.

On that ground alone the judgment

of the High Court is vulnerable. [610-D-E-F]

2.2. The evidence as led and which is practically undisputed is that

the respondent had asked the husband to do certain things which cannot P

be termed to be a simple advice for proper behaviour. Though respondent

tried to show

that they were simple and harmless advice, yet on a bare

reading thereof it is clear that there were clear manifestations of her

suspecting the

husban~'s fidelity, character and reputation. Constant

nagging on those aspects, certainly amounted to causing indelible mental E

agony and amounts to cruelty. [610-G-H; 611-A-B]

2.3.

If acts subsequent to the filing of the divorce petition can be

looked into the infer condonation

of the aberrations, acts subsequent to

the filing

of the petition can be taken note of to show a

patter~ in the F

behaviour and conduct. In the instant case, after filing of the divorce

petition a suit for injunction was filed,

and the respondent went to the

extent of seeking detention of the

r~spondent. She filed a petition for

maintenance which was also dismissed. Several caveat petitions were ,

/

lodged and with wrong address. The respondent in her evidence clearly

accepted

that she intended to proceed with the execution proceedings, G

and prayer for arrest till the divorce case was finalized. When the

respondent gives priority to

her profession over her husband's freedom

it points unerringly

at disharmony, diffusion and disintegration of marital

unit, from which the

Court can deduce about irretrievable breaking of

marriage. (611-C-D-E-F] H

604 SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A 2.4. It is true that irretrievable breaking of marriage is not one of

B

c

the statutory grounds on which Court can direct dissolution of marriage,

this Court has with a view to do complete justice and shorten the agony

of the parties engaged in long drawn legal battle, directed dissolution

of marriage in exceptional cases. (612-A-B-CJ

Chetan Dass v. Kam/a Devi, AIR (2001) SC 1709; G. V.N. Kammeswara

Rao

v. G. Jabilli,

[2002} 2 SCC 296 and Shyam Sunder Kohli v. Sushma

Kohli @ Satya Devi, JT (2004) 8 SC 166, distinguished.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7763-7764

of 2004.

From the Judgment and Order dated 27.9.2002 of the Andhra Pradesh

High Court in C.M.A. Nos. 2124 and 2366 of 2001.

.p Shekhar Naphade, Mahesh Agrawal, Tarun Dua, Ms. Momota Devi

E

Oinam and E.C. Agrawala for the Appellant.

Mrs. S. Vani Mrs. B. Sunita Rao and Sushi! Kumar Pathak for the

Respondent.

The Judgment

of the Court was delivered by

ARIJIT

PASAYAT, J.: Leave granted.

Parties to a marriage tying nuptial knot are supposed to bring about

F the uriion of souls. It creates a new relationship of love, affection, care and

concern betwe~n the husband and wife. According to Hindu Vetiic philosophy

it is

sanskar-a sacrament; one of the sixteen important sacraments essential

to be taken during one's lifetime. There may be physical union as a result

of marriage for procreation to perpetuate the lineal progeny for ensuring

G spiritual salvation and performance ofreligious rites, but what is essentially

contemplated in union

of two souls. Marriage is considered to be a junction

of three important duties i.e. social, religious spiritual.

This case presents a very unpleasant tale

of two highly educated

H professionals (doctors by profession) fighting a bitter matrimonial battle.

A. JAYACHANDRA v. ANEEL KAUR [ PASAYAT, J.] 605

Background facts sans unnecessary details are as follows :

The appellant (hereinafter referred to as the

'husband') and the

respondent (hereinafter referred to as the

'wife') tied nuptial knot on

l

0.10.1978. They were blessed with two children. Both are majors by now.

A

The marriage was what is commonly known as "love marriage". Appellant B

and the respondent were co-students in the medical college. They belong

to different parts

of the country; the appellant-husband is a Telugu Brahmin

while the respondent-wife belongs to Sikh religion. They were both working

in the hospital which was established by the appellant's father Dr.

A. Ram

Murthy. Allegedly finding the behaviour

of the respondent-wife obnoxious,

humiliating and amounting to mental cruelty, a notice was given by the

appellant-husband on 5.3.1997 seeking divorce by mutual consent to avoid

unnecessary complications. It was stated therein that they had not shared the

bed and there was no physical contact between them for over two years, in

c

the notice that the respondent had treated appellant with cruelty and her

conduct amounted to desertion for two years and was, therefore, neither

D

safe, desirable nor advisable to continue marital relationship. A response

was given by respondent on 21.3 .1997 deying the allegations.

It was suggested

that there should be a free and heart to heart discussion to sort out the

. problems for a harmonious married !if~. The aforesaid task which admittedly

took place did not bring any result and ultimately a petition under Section

13 of the Hindu Marriage Act, 1955 (in short the 'Act') was filed before

Family Courts, Hyderabad. It was categorically stated therein that the

behaviour and conduct

of the respondent was causing immense emotional

stress, mental agony, and there being

no sharing of the bed and cohabitation

for more than two years, prayer was made to grant decree

of divorce for

dissolving the marriage between the parties. It was specifically stated that

the respondent has ill-treated her husband, abused him

in vulgar language

in the home and at the hospital and at other places thereby causing mental

agony, damage and

Joss personally and professionally and also in the social

circle; allegations were made about his character. Caveats were filed at

different places with a view to forestall legal action, and create an impression

of innocence. Caveats were admittedly lodged at the wrong address of the

appellant. Counter affidavit was filed by the respondent denying the

allegations. It was stated that he

bona fide

act~ in advising her husband to

act properly and to be decent in his behaviour was misconstrued and was

being projected

as nagging and insulting behaviour. The petition for divorce

E

F

G

H

606 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A was filed on unfounded allegations.

At this juncture it would be relevant to not that after the petition was

filed

by the appellant-husband, a suit for injunction bearing

OA No. 89/97

in respect

of right to practise in the hospital was filed by the respondent.

B The said suit was not objected to by the appellant and the suit was decreed

on 20.11.1997. Subsequently, an execution petition was filed praying for

attachment

of hospital equipments belonging to the appellant, and also for

civil detention

of the appellant for alleged disobedience of the

order of

injunction. It was categorically stated by the respondent during trial that the

C was not willing to withdraw the application until divorce case was finalized.

An application for maintenance was also filed before the Family Court,

Hyderabad, where the matter was pending claiming a sum

of Rs.

13,000

p.m., though admittedly the respondent is a professional doctor. Subsequently,

another suit was filed for perpetual and mandatory injunction bearing O.S.

No. 43/1999 against the appellant for allowing respondent and the staff

D appointed by her use of certain portion of the hospital and use of the medical

instruments.

Evidence was led by the parties. The respondent stated in her evidence

that the had complete faith and trust in her husband and no doubt about his

E integrity and character. But at the same time, she stated that she had advised

him on five counts to be discreet and decent in his behaviour. By judgment

dated

18.6.2001. Family Court, Hyderabad, passed decree for judicial

separation with effect from the date

of the decree. Though the Family Court

found that unfounded allegations which caused mental agony were made by

F

the respondent, and her alleged acts clearly caused mental agony and mental

cruelty, yet keeping

in view the welfare of the children instead of decree

for divorce a decree for judicial separation was felt to be more appropriate.

Both the appellant and respondent challenged the judgment before the High

Court. While the appellant-husband took the stand that a decree for divorce

should have been passed, the respondent-wife questioned legality

of the

G decree for judicial separation. By the impugned judgment a Division Bench

of the High Court dismissed the husband's appeal while allowing the wife's

appeal. It was held that the materials on records were not sufficient to prove

any mental cruelty. The entire evidence led by the appellant did not even

emit smell

of cruelty. It was noted that even if it was a fact that the

H respondent was using abusive language and making allegations ofadultery

A. JAYACHANDRA v. ANEEL KAUR [ PASAYAT, J.] 607

with nursing staff, the husband ought to have examined some witnesses from A

the hospital and since it was not done, cruelty was not established.

Learned counsel for the appellant submitted that the approach

of the

High Court is clearly erroneous.

It did not examine the evidence led in

detail

1

and upset the findings recorded by the trial Court after analyzing the B

evidence in great detail. It was not even pointed out as to how the evidence

led by the appellant was in any way deficient to prove cruelty. Mere non­

examination

of staff of the hospital cannot be a ground to discard the cogent

and credible evidence led by the appellant.

It was further submitted that

mental cruelty was clearly established and in any event

the marriage has

broken

down irretrievably and on that score alone the decree of divorce

should have been passed.

Learned counsel for the respondent-wife submitted that no particulars

c

of alleged

:ruelty were indicated. Making vague allegations about the mis­

behaviour was not sufficient for accepting the prayer for divorce. The

D

evidence was scanty and in no way established mental cruelty. What amounts

to cruelty has been dealt with by the this Court in

S. Hanumantha Rao v.

S. Ramani, [1999] 3 SCC 620. The accepted factual position shows that till

1993 the relationship was smooth except some stray incidents

of discord

which are normal in nay marriage and such normal wear and tear in

relationship cannot be a ground for seeking divorce.

It was submitted that

even if is accepted, for the sake of argument, that marriage has broken down

that cannot be a ground to grant a decree for divorce. Reference was made

to the decisions

of this Court in

Chetan Dass v. Kam/a Devi, AIR (2001)

SC 17019, G. VN. Kameswara Rao v. G. Jabilli, [2002] 2 SCC 296 and

Shyam Sunder Kohli v. Sushma Kohli@ Satya Devi, JT (2004) 8 SC 166.

Further submission was that in the case at hand it cannot

be said that

the requisite ingredients for constituting cruelty have been satisfied.

E

F

The expression

"cruelty" has not been defined in the Act. Cruelty can G

be physical or mental. Cruelty which is a ground for dissolution of marriage

may be defined as willful

and unjustifiable conduct of such character as to

cause

danger to life, limb or health, bodily or mental, or as to give rise to

a reasonable apprehension

of such a danger. The question of mental cruelty

has to be considered in the light of the norms of marital ties of the particular H

608 SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A society to which the parties belong, their social values, status, environment

in which they live. Cruelty, as noted above, includes mental cruelty, which

falls within the purview

of a matrimonial wrong. Cruelty need not be

physical. If from the conduct of his spouse same is established and/or an

inference can be legitimately drawn that the treatment

of the spouse is such

B that it causes an apprehension in the mind of the other spouse, about his or

her mental welfare then this conduct amounts to cruelty.

fn delicate human

relationship like matrimony, one has to see the probabilities

of the case. The

concept, a proof beyond the shadow

of doubt, is to be applied to criminal

trials and not to civil matters and certainly not to matters

of such delicate

c

D

-·E

F

G

H

personal relationship as those of husband and wife. Therefore, one has to

see what are the probabilities

in a case and legal cruelty has to be found out,

not merely as a matter

of fact, but as the effect on the mind of the complainant

spouse because

of the acts or omissions of the other. Cruelty may be physical

or corporeal or may be mental. In physical cruelty, there can be tangible and

direct evidence, but in the case

of mental cruelty there may not at the same

time be direct evidence. In cases where there is no direct evidence, Courts

are required to probe into the mental process and mental effect

of incidents

that are brought

out in evidence. It is in this view that one has to consider

the evidence in matrimonial disputes.

The expression

'cruelty' has been used in relation to human conduct

or human behaviour.

It is the conduct in relation to or in respect of matrimonial

duties and

obligations. Cruelty is a course or conduct of one, which is

adversely affecting the other. The cruelty may be mental or physical,

intentional

or unintentional. Ifit is physical, the Court will have no problem

in determining it.

It is a question or fact and degree. If it is mental, the

problem presents difficulties. First, the enquiry must begin as to the nature

of cruel treatment, second the impact of such treatment in the mind of the

spouse, whether it caused reasonable apprehension that it would be harmful

or injurious to live with the other.

Ultimately, it is a matter of inference to

be drawn by taking into account the nature

of the conduct and its effect on

the complaining spouse. However, there may be a case where the conduct

complained

of itself is bad enough and per se unlawful or illegal. Then the

impact

or injurious effect on the other spouse need not be enquired into or

considered.

In such cases, t.he cruelty will be established ifthe conduct itself

is proved or admitted (See

Sobh Rani v. Madhukar Reddi, AIR (1988) SC

121 ).

A. JAYACHANDRA v. ANEEL KAUR [ PASAYAT, J.] 609

To constitute cruelty, the

conduct complained of should be

"grave and A

weighty" so as to come to the conclusion that the petitioner spouse cannot

be reasonably expected to live with tlie other spouse. It must be something

more serious than "ordinary wear and tear of married life". The conduct,

taking into consideration the circumstances and background has to be

examined to reach the conclusion whether the conduct complained

of amounts B

to cruelty in the matrimonial law. Conduct has to be considered, as noted

above, in the background

of several factors such as social status of parties,

their education, physical and mental conditions, customs and traditions.

It

is difficult to lay down a precise definition or to give exhaustive description

of the circumstances, which would constitute cruelty. It must be of the type

as to satisfy the conscience

on the Court that the relationship between the C

parties had deteriorated to such an extent due to the conduct of the other

spouse that it would be impossible for them to live together without mental

agony, torture or distress, to entitle the complaining spouse to secure divorce.

Physical violence is not absolutely essential to constitute cruelty and a

consistent course

of conduct inflicting immeasurable mental agony and

torture may well constitute cruelty within the meaning

of

Section 10 of the

D

Act. Mental cruelty may consist of verbal abuses and insults by using filthy

and abusive language leading to constant disturbance

of mental peace of the

other party.

The

Court dealing with the petition for divorce on the ground of cruelty

has to

bear in mind that the problems before it are those of human beings

and

the psychological changes in a spouse's conduct have to be borne in

mind before disposing

of the petition for divorce. However, insignificant or

trifling, such conduct may cause pain in the mind of another. But before the

conduct can be called cruelty, it must torch a certain pitch of severity. It

is for the Court to weigh the gravity. It has to be seen whether the conduct

was such that no reasonable person would tolerate it.

It has to considered

whether the complainant should be called upon to endure as a part

of normal

human life. Every matrimonial conduct, which may cause annoyance to the

other, may not amount to cruelty. Mere trivial irritations, quarrels between

spouses, which happen in day-to-day married life, may also not

amount to

cruelty. Cruelty in matrimonial life may be of unfounded variety, which can

be subtle

or brutal. It may be words, gestures or by mere silence, violent

or non-violent.

The foundation

of a sound marriage is tolerance, adjustment and

E

F

G

H

610 SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R.

A respecting one another. Tolerance to each other's fault to a certain bearable

extent has to be inherent in every marriage. Petty quibbles, trifling differences

should not

be exaggerated and

magnified to destroy what is said to have been

made

in heaven. All quarrels must be weighed from that point of view in

determining what constitutes cruelty

in each particular case and as noted

B above, always keeping in view the physical and mental conditions of the

parties, their character and social status. A too technical and hyper-sensitive

approach would be counter-productive to the institution

of marriage. The

Courts do not have to deal with

idea husbands and ideal wives. It has to

deal with particular man and woman before it. The ideal couple

or a mere

c

ideal one will probably have no occasion to go to Matrimonial Court. (See

Dastane v. Dastane, AIR

(1975) SC 1534.

On reading of judgments of the trial Court and the High Court one thing

is clear. While the trial Court analysed the evidence in great detail and found

that the accepted stand

of the respondent-wife regarding her behaviour and

D conduct caused mental agony and camounted to mental cruelty, the High

Court did not discuss the evidence at all.

On the specious ground that

witnesses from the hospital were not examined and, therefore, adverse

inference was to be drawn. There was not even any discussion as to how

the evidence led was insufficient to establish mental cruelty. The High

E Court's view that if at all it was a fact that respondent was using abusive

language and making allegations

of adultery with nursing staff, some

witnesses from the hospital were necessary to be examined is clearly

indefensible. That alone should not have been made the determinative factor

to discard evidence on record.

On that ground alone the judgment of the

F High Court is vulnerable. The evidence as led and which is practically

undisputed is that the respondent had asked the husband to do certain things

which cannot be termed to be a simple advice for proper behaviour. For

example in her evidence respondent clearly accepted that she had said five

things to be followed by him. Surprisingly, most

of them related to

lad~es

G

working in the hospital. Though respondent tried to show that they were

simple and harmless advice, yet on a bare reading

thereof it is clear that there

were clear manifestations

of her suspecting the husband's fidelity, character

and reputation. By way

of illustration, it may be indicated that the first so

called advice was not to ask certain female

staff members to come and work

on off-duty hours when nobody else was available in the hospital.

Second

H was not to work behind the closed doors with certain members of staff.

A. JAY ACHANDRA v. ANEEL KAUR [PASAYA T, J.] 611

Contrary to what she had stated about having fl.~11 faith in her husband, the

so called advices were nothing but casting doubt on the reputation, character

A

and fidelity of her husband. Constant nagging on those aspects, certainly

amounted to causing indelible mental agony and amounts to cruelty. The

respondent was not an ordinary woman. She as a doctor in the hospital and

knew the importance of the nature of duty and the necessity of members B

of the staff working even during off hours and the working conditions. There

was another instance which was specifically dealt with by the trial Court.

Some related to the alleged extra martial relationships of the appellant with

another married lady who was wife

of his friend. Though the respondent

tried

to explain that she was not responsible for making any such aspersions,

the inevitable conclusion

is to the contrary.

The matter can be looked at from another angle. If acts subsequent to

the filing

of the divorce petition can be looked into infer condonation of the

aberrations, acts subsequent to the filing

of the petition can be taken note

of to show a patterns in the behaviour and conduct. In the instant case, after

filing

of the divorce petition a suit for injunction was filed, and the respondent

went

to the extent of seeking detention of the respondent. She filed a petition

c

D

for maintenance which was also dismissed. Several caveat petitions were

lodged and as noted above, with wrong address.

The respondent in her

evidence clearly accepted that she intended to proceed with the execution E

proceedings, and prayer for arrest till the divorce case was finalized. When

the respondent gives priority to her profession

over her husband's freedom

in points unerringly at disharmony, diffusion and disintegration

of marital

unity, from which the

Court can deduce about irretrievable breaking of

marriage.

F

Several decisions, as noted above, cited by learned counsel for the

respondent to

contend even if marriage has broken down irretrievably

decree

of divorce cannot be passed. In all these cases it has been categorically

held that in extreme cases the

Court can direct dissolution of marriage on

the ground that

the marriage broken down irretrievably as is clear from G

paragraph 9 of

Shyam Sunder's case (supra). The factual position in each·

of ihe other cases is also distinguishable. It was helci that long absence of

physical company cannot be a ground for divorce if the same was on account

of husband's conduct. In Shyam Sunder 's case (supra) it was noted that the

husband was leading adulterous life and he

cannot take advantage of his wife H

'·

612 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A shunning his company. Though the High Court held by the impugned

judgment that the said case was similar, it unfortunately failed to notice the

relevant factual difference in the two cases. It is true that irretrievable

breaking

of marriage is not one of the statutory grounds on which court can

direct dissolution

of marriage, this Court has with a view to do complete

B justice and shorten the agony of the parties engaged in long drawn legal

battle, directed in those cases dissolution

of marriage. But as noted in the

said cases themselves those were exceptional cases.

c

In the aforesaid legal and factual background the inevitable conclusion

is that the appellant is entitled to a decree

of divorce and we direct accordingly.

The appeals are allowed with no order as to costs.

K.K.T. Appeals

allowed.