Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5862 OF 2014

(Arising out of S.L.P. (C) No. 17 of 2010)

Dr. (Mrs.) Malathi Ravi, M.D. ... Appellant

Versus

Dr. B.V. Ravi, M.D. ...Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. Marriage as a social institution is an affirmance of

civilized social order where two individuals, capable of

entering into wedlock, have pledged themselves to the

institutional norms and values and promised to each other

a cemented bond to sustain and maintain the marital

obligation. It stands as an embodiment for continuance of

the human race. Despite the pledge and promises, on

certain occasions, individual incompatibilities, attitudinal

Page 2 differences based upon egocentric perception of

situations, maladjustment phenomenon or propensity for

non-adjustment or refusal for adjustment gets eminently

projected that compels both the spouses to take

intolerable positions abandoning individual responsibility,

proclivity of asserting superiority complex, betrayal of

trust which is the cornerstone of life, and sometimes a

pervert sense of revenge, a dreadful diet, or sheer sense

of envy bring the cracks in the relationship when either

both the spouses or one of the spouses crave for

dissolution of marriage – freedom from the institutional

and individual bond. The case at hand initiated by the

husband for dissolution of marriage was viewed from a

different perspective by the learned Family Court Judge

who declined to grant divorce as the factum of desertion

as requisite in law was not proved but the High Court,

considering certain facts and taking note of subsequent

events for which the appellant was found responsible,

granted divorce. The High Court perceived the acts of the

appellant as a reflection of attitude of revenge in marriage

or for vengeance after the reunion pursuant to the decree

2

Page 3 for restitution of marriage. The justifiability of the said

analysis within the parameters of Section 13(1) of the

Hindu Marriage Act, 1955 (for brevity “the Act”) is the

subject-matter of assail in this appeal, by special leave,

wherein the judgment and decree dated 11.09.2009

passed by the High Court of Karnataka in MFA No. 9164 of

2004 reversing the decree for restitution of conjugal rights

granted in favour of the wife and passing a decree for

dissolution of marriage by way of divorce allowing the

petition preferred by the respondent-husband, is called in

question.

3. The respondent-husband, an Associate Professor in

Ambedkar Medical College, Kadugondanahalli, Bangalore,

filed a petition, M.S. No. 5 of 2001 under Section 13(1) the

Act seeking for a decree for judicial separation and

dissolution of marriage. However, in course of the

proceeding the petition was amended abandoning the

prayer for judicial separation and converting the petition

to one under Section 13(1)(ib) of the Act seeking

dissolution of marriage by way of divorce.

3

Page 4 4. In the petition filed before the Family court, it was

averred by the respondent-husband that the marriage

between the parties was solemnized in accordance with

Hindu Rites and customs on 23.11.1994. After the

marriage the husband and wife stayed together for one

and a half years in the house of the father of the husband

but from the very first day the appellant-wife was non-

cooperative, arrogant and her behaviour towards the

family members of the husband was unacceptable.

Despite the misunderstanding, a male child was born in

the wedlock and thereafter, the wife took the child and left

the house and chose not to come back to the husband or

his family for a period of three years. It was pleaded that

there had been a marital discord and total non-

compatibility, and she had deserted him severing all ties.

It was also alleged that she had left the tender child in the

custody of her parents and joined a post graduate course

in the Medical College of Gulbarga. All the efforts by the

husband to bring her back became an exercise in futility

inasmuch as the letters written by him were never replied.

Despite the non-responsive attitude of the wife, he,

4

Page 5 without abandoning the hope for reconciliation for leading

a normal married life, went to the house of his in-laws, but

her parents ill treated him by forcibly throwing him out of

the house.

5. It was the assertion of the husband that after she

completed her course, she started staying with her

parents along with the child at Bangalore and neither he

nor his family members were invited for the naming giving

ceremony of the child. As set forth, the conduct of the

wife caused immense mental hurt and trauma, and he

suffered unbearable mental agony when the family

members of his wife abused and ill treated him while he

had gone to pacify her and bring her back to the

matrimonial home. All his solicitations and beseechments

through letters to have normalcy went in vain which

compelled him to issue a notice through his counsel but

she chose not to respond to the same. Under these

circumstances, the petition was filed for judicial separation

and thereafter, as has been stated earlier, prayer was

amended seeking dissolution of marriage on the ground of

5

Page 6 desertion since she had deliberately withdrawn from his

society.

6. The wife filed objections contending, inter alia,

that when she was residing in the matrimonial home, the

sister and brother-in-law of the husband, who stayed in

the opposite house, were frequent visitors and their

interference affected the normal stream of life of the

couple. They influenced the husband that he should not

allow his wife to prosecute her studies and be kept at

home as an unpaid servant of the house. The husband, as

pleaded, was torn in conflict as he could not treat the wife

in the manner by his sister and brother-in-law had desired

and also could not openly express disagreement. At that

juncture, as she was in the family way, as per the

customs, she came to her parental home and by the time

the child was born the sister and brother-in-law had been

successful in poisoning the mind of the husband as a

result of which neither he nor his relatives, though

properly invited, did not turn up for the naming ceremony.

All her attempts to come back to the matrimonial home

did not produce any result since the husband was acting

6

Page 7 under the ill-advice of his sister and brother-in-law. It was

put forth that he had without any reasonable cause or

excuse refused to perform his marital obligations. The

plea of mental hurt and trauma was controverted on the

assertion that she had never treated him with cruelty nor

was he summarily thrown out of the house of her parents.

7. Be it stated, the wife in the same petition filed an

application under Section 9 of the Act for restitution of

conjugal rights to which an objection was filed by the

husband stating, inter alia, that no case had been made

out for restitution of conjugal rights but, on the contrary,

vexatious allegations had been made. It was further

averred that the wife had deserted him for more than five

years and she had been harassing him constantly and

consistently.

8. In support of their respective pleas the husband

and wife filed evidence by way of affidavit and were cross-

examined at length by the other side. On behalf of the

husband 12 documents were exhibited as Exts. P-1 to P-12

and the wife examined one witness and exhibited four

documents, Exts. R-1 to R-4.

7

Page 8 9. The family court formulated the following points

for consideration: -

“(1)Whether the petitioner proves that

respondent assaulted him for a continuous

period of not less than 2 years

immediately proceeding the presentation

of the petition?

(2)Whether the respondent proves that the

petitioner without reasonable excuse

withdrawn from the society?

(3)Whether the petitioner is entitled for

decree of divorce as prayed for?

(4)Whether the respondent is entitled for

decree of restitution of conjugal right as

prayed for?

(5)What order?”

10. The learned Principal Judge of the family court,

appreciating the oral and documentary evidence on record

came to hold that the material on record gave an

impression that there was no scuffle between the husband

and the wife; that even after the birth of the child the

husband and his family members used to visit the wife at

her parental home to see the child; that there was no

material on record to show that when he went to his in-

laws house to see the child, he was ill-treated in any

manner; that after the child was born he had taken the

8

Page 9 child along with her for vaccination and spent sometime;

that though the husband and his relatives were invited for

naming ceremony of the child, they chose not to attend;

that the husband was able to recognize his son from the

photograph in Ext. R-2; that the plea of the husband that

he was not allowed to see the child did not deserve

acceptation; that the circumstances did not establish that

wife had any intention to bring the conjugal relationship to

an end but, on the contrary, she was residing in her

parents’ house for delivery and then had to remain at

Gulbarga for prosecuting her higher studies; that while she

was studying at Gulbarga, as is evident from Ext. R-4, the

husband stayed there for two days, i.e., 27.5.1999 and

28.5.1999; that from the letters vide Exts. P-3, P-7, P-9

and P-11 nothing was discernible to the effect that the

wife went to Gulbarga for her studies without his

permission and she had deserted him; that the husband

had not disclosed from what date he stopped visiting the

house of the wife’s parents after the birth of the child; that

the letters written by the husband did not reflect the non-

cooperative conduct of the wife; that there was no

9

Page 10 sufficient evidence to come to a definite conclusion that

the wife had deserted the husband with an intention to

bring the matrimonial relationship to an end; that

assuming there was desertion yet the same was not for a

continuous period of two years immediately preceding the

presentation of the petition; that the husband only wrote

letters after 15.9.1999 and nothing had been brought on

record to show what steps he had taken for resumption of

marital ties with the wife if she had deserted him; that the

wife was not allowed to come back to the matrimonial

home because of intervention of his sister and brother-in-

law; that the explanation given by the wife to her non-

response to the letters was that when she was thinking to

reply the petition had already been filed was acceptable;

that as the husband was working at Ambedkar Medical

College in the Department of Biochemistry and wife had

joined in the Department of Pathology which would show

that she was willing to join the husband to lead a normal

marital life; and that it was the husband who had

withdrawn from the society of the wife without any

reasonable cause. Being of this view, the learned Family

1

Page 11 Judge dismissed the application for divorce and allowed

the application of the wife filed under Section 23(a) read

with Section 9 of the Act for restitution of conjugal rights.

11. After the said judgment and decree was passed by

the learned Family Judge, the respondent did not prefer an

appeal immediately. He waited for the wife to join and for

the said purpose he wrote letters to her and as there was

no response, he sent a notice through his counsel. The

wife, eventually, joined on 22.8.2004 at the matrimonial

house being accompanied by her relative who was

working in the Police Department. As the turn of events

would uncurtain, the wife lodged an FIR No. 401/2004

dated 17.10.2004 at Basaveshwaranagar alleging demand

of dowry against the husband, mother and sister as a

consequence of which the husband was arrested being an

accused for the offences under Section 498A and 506 read

with Section 34 of the Indian Penal Code and also under

the provisions of Dowry Prohibition Act. He remained in

custody for a day until he was enlarged on bail. His

parents were compelled to hide themselves and moved an

application under Section 438 of the Code of Criminal

1

Page 12 Procedure and, ultimately, availed the benefit of said

provision. After all these events took place, the husband

preferred an appeal along with application for condonation

of delay before the High Court which formed the subject-

matter of M.F.A. No. 9164/04 (FC). The High Court

condoned the delay, took note of the grounds urged in the

memorandum of appeal, appreciated the subsequent

events that reflected the conduct of the wife and opined

that the attitude of the wife confirmed that she never had

the intention of leading a normal married life with the

husband and, in fact, she wanted to stay separately with

the husband and dictate terms which had hurt his feelings.

The High Court further came to the conclusion that the

husband had made efforts to go to Gulbarga on many an

occasion, tried to convince the wife to come back to the

matrimonial home, but all his diligent efforts met with

miserable failure. As the impugned judgment would

reflect, the behaviour of the wife established that she

deliberately stayed away from the marital home and

intentionally caused mental agony by putting the husband

and his family to go through a criminal litigation. That

1

Page 13 apart, the High Court took the long separation into

account and, accordingly, set aside the judgment and

decree for restitution of conjugal rights and passed a

decree for dissolution of marriage between the parties.

12. We have heard Mr. Shanth Kumar V. Mohale,

learned counsel for the appellant and Mr. Balaji Srinivasan,

learned counsel for the respondent.

13. Assailing the legal sustainability of the judgment of

the High Court, Mr. Shanth Kumar, learned counsel

appearing for the appellant, submitted that when the

petition for divorce was founded solely on the ground of

desertion and a finding was returned by the family court

that the ingredients stipulated under Section 13(1)(ib) of

the Act were not satisfied making out a case of desertion

on the part of the wife, the High Court should have

concurred with the same and not proceeded to make out a

case for the respondent-husband on the foundation of

mental cruelty. It is urged by him that the High Court has

taken note of subsequent events into consideration

without affording an opportunity to the appellant to

controvert the said material and that alone makes the

1

Page 14 decision vulnerable in law. Learned counsel would submit

that the High Court has erroneously determined the period

of communication of letters and the silence maintained by

the wife which is factually incorrect and, in fact, the

concept of desertion, as is understood in law, has not been

proven by way of adequate evidence but, on the contrary,

the analysis of evidence on record by the Family Court

goes a long way to show that there was, in fact, no

desertion on the part of the wife to make out a case for

divorce. It is his further submission that the High Court

has opined that the marriage between the parties had

irretrievably been broken and, therefore, it was requisite

to grant a decree for dissolution of marriage by divorce

which cannot be a ground for grant of divorce. Learned

counsel has placed reliance on the decisions in Lachman

Utamchand Kirpalani v. Meena @ Mota

1

, K.

Narayanan v. K. Sreedevi

2

, Mohinder Singh v.

Harbens Kaur

3

and Smt. Indira Gangele v.

Shailendra Kumar Gangele

4

.

1

AIR 1964 SC 40

2

AIR 1990 Ker 151

3

AIR 1992 P&H 8

4

AIR 1993 MP 59

1

Page 15 14. Mr. Balaji Srinivasan, learned counsel for the

respondent-husband, has urged that if the petition filed by

the husband is read in entirety, it would be clear that the

husband had clearly pleaded about the mental hurt and

trauma that he had suffered because of the treatment

meted out to him by his wife and her family members. He

has drawn our attention to the evidence to show that for a

long seven and a half years despite the best efforts he

could not get marital cooperation from his wife and as the

High Court has accepted the same, the impugned

judgment is flawless. He has highlighted about the non-

responsive proclivity of the wife when she chose not to

reply to the letters of the husband beseeching her to join

his company while she was staying at Gulbarga. He has

also drawn our attention to the cross-examination of the

husband where he has deposed that after the delivery of

the son on 12.1.1998 when she was discharged, he and

his mother had gone to bring the wife and the child to

their home but she went to her parental home and further

neither he nor his family members were invited for the

naming ceremony which was performed in October, 1998.

1

Page 16 Learned counsel has drawn our attention to the

subsequent events which have been brought on record by

way of affidavit as well as the rejoinder filed by the

appellant-wife to the counter affidavit to highlight the

subsequent conduct for the purpose of demonstrating the

cruel treatment of the wife. It is canvassed by him that

the subsequent events can be taken note of for the

purpose of mental cruelty by this Court and the decree of

divorce granted by the High Court should not be

disturbed.

15. To appreciate the rivalised submissions raised at

the Bar, we have carefully perused the petition and the

evidence adduced by the parties and the judgment of the

Family Court and that of the High Court. The plea that

was raised for grant of divorce was under Section 13(1)(ib)

of the Act. It provides for grant of divorce on the ground of

desertion for a continuous period of not less than two year

immediately preceding the presentation of the petition.

The aforesaid provision stipulates that a husband or wife

would be entitled to a dissolution of marriage by decree of

divorce if the other party has deserted the party seeking

1

Page 17 the divorce for a continuous period of not less than two

years immediately preceding the presentation of the

petition. Desertion, as a ground for divorce, was inserted

to Section 13 by Act 68/1976. Prior to the amendment it

was only a ground for judicial separation. Dealing with the

concept of desertion, this Court in Savitri Pandey v.

Prem Chandra Pandey

5

has ruled thus:-

“Desertion”, for the purpose of seeking divorce

under the Act, means the intentional

permanent forsaking and abandonment of one

spouse by the other without that other’s

consent and without reasonable cause. In other

words it is a total repudiation of the obligations

of marriage. Desertion is not the withdrawal

from a place but from a state of things.

Desertion, therefore, means withdrawing from

the matrimonial obligations i.e. not permitting

or allowing and facilitating the cohabitation

between the parties. The proof of desertion has

to be considered by taking into consideration

the concept of marriage which in law legalises

the sexual relationship between man and

woman in the society for the perpetuation of

race, permitting lawful indulgence in passion to

prevent licentiousness and for procreation of

children. Desertion is not a single act complete

in itself, it is a continuous course of conduct to

be determined under the facts and

circumstances of each case. After referring to a

host of authorities and the views of various

authors, this Court in Bipinchandra Jaisinghbai

Shah v. Prabhavati1 held that if a spouse

abandons the other in a state of temporary

passion, for example, anger or disgust without

5

(2002) 2 SCC 73

1

Page 18 intending permanently to cease cohabitation, it

will not amount to desertion.

16. In the said case, reference was also made to

Lachman Utamchand Kirpalani’s case wherein it has

been held that desertion in its essence means the

intentional permanent forsaking and abandonment of one

spouse by the other without that other’s consent, and

without reasonable cause. For the offence of desertion so

far as the deserting spouse is concerned, two essential

conditions must be there (1) the factum of separation, and

(2) the intention to bring cohabitation permanently to an

end (animus deserendi). Similarly two elements are

essential so far as the deserted spouse is concerned: (1)

the absence of consent, and (2) absence of conduct giving

reasonable cause to the spouse leaving the matrimonial

home to form the necessary intention aforesaid. For

holding desertion as proved the inference may be drawn

from certain facts which may not in another case be

capable of leading to the same inference; that is to say

the facts have to be viewed as to the purpose which is

revealed by those acts or by conduct and expression of

1

Page 19 intention, both anterior and subsequent to the actual acts

of separation.

17. In the case at hand, the Family Court, on the basis

of the evidence brought on record, has recorded a finding

that there was no desertion for a continuous period of two

years. The High Court has reversed it by emphasizing on

certain aspects of conduct. Analysing the evidence, we

are of the considered opinion that it is not established that

the appellant-wife had deserted the husband for a

continuous period of not less than two years immediately

preceding the presentation of the petition. It is because

the petition was presented in the year 2001 and during

the cross-examination of the husband it has been

admitted by him that he had gone to Gulbarga in May,

1999 for two days. The Family Court, on the basis of

material brought on record, has opined that there is no

sufficient evidence to come to a definite conclusion that

the wife deserted him with intention to bring the

matrimonial relationship to an end and further the period

of two years was not completed. The High Court, as it

seems to us, has not dealt with this aspect in an

1

Page 20 appropriate manner and opined that the wife had no

intention to lead a normal married life with the husband.

Therefore, the allegation of desertion, as enshrined under

Section 13(1)(ib) has not been established. The finding on

that score as recorded by the learned Principal Judge,

Family Court, deserves to be affirmed and we so do.

18. Presently to the factual matrix in entirety and the

subsequent events. We are absolutely conscious that the

relief of dissolution of marriage was sought on the ground

of desertion. The submission of the learned counsel for the

appellant is that neither subsequent events nor the plea of

cruelty could have been considered. There is no cavil over

the fact that the petition was filed under Section 13(1)(ib).

However, on a perusal of the petition it transpires that

there are assertions of ill-treatment, mental agony and

torture suffered by the husband.

19. First we intend to state the subsequent events. As

has been narrated earlier, after the application of the wife

was allowed granting restitution of conjugal rights, the

husband communicated to her to join him, but she chose

not to join him immediately and thereafter went to the

2

Page 21 matrimonial home along with a relative who is a police

officer. After she stayed for a brief period at the

matrimonial home, she left her husband and thereafter

lodged FIR No. 401/2004 on 17.10.2004 for the offences

under Sections 498A and 506/34 of the Indian Penal Code

and the provisions under Dowry Prohibition Act, 1961

against the husband, his mother and the sister. Because

of the FIR the husband was arrested and remained in

custody for a day. The ladies availed the benefit of

anticipatory bail. The learned trial Magistrate, as we find,

recorded a judgment of acquittal. Against the judgment of

acquittal, the appellant preferred an appeal before the

High Court after obtaining special leave which was

ultimately dismissed as withdrawn since in the meantime

the State had preferred an appeal before the Court of

Session. At this juncture, we make it absolutely clear that

we will not advert to the legal tenability of the judgment of

acquittal as the appeal, as we have been apprised, is sub-

judice. However, we take note of certain aspects which

have been taken note of by the High Court and also

brought on record for a different purpose.

2

Page 22 20. The seminal question that has to be addressed is

whether under these circumstances the decree for divorce

granted by the High Court should be interfered with. We

must immediately state that the High Court has referred

to certain grounds stated in the memorandum of appeal

and taken note of certain subsequent facts. We accept

the submission of the learned counsel for the appellant

that the grounds stated in the memorandum of appeal

which were not established by way of evidence could not

have been pressed into service or taken aid of. But, it

needs no special emphasis to state that the subsequent

conduct of the wife can be taken into consideration. It

settled in law that subsequent facts under certain

circumstances can be taken into consideration.

21. In A. Jayachandra v. Aneel Kaur

6

it has been

held thus: -

“If acts subsequent to the filing of the divorce

petition can be looked into to infer

condonation of the aberrations, acts

subsequent to the filing of the petition can be

taken note of to show a pattern in the

behaviour and conduct.”

6

(2005) 2 SCC 22

2

Page 23 22. In Suman Kapur v. Sudhir Kapur

7

this Court had

accepted what the High Court had taken note of despite

the fact that it was a subsequent event. It is necessary to

reproduce the necessary paragraphs from the said

decision to perceive the approach of this Court: -

“46. The High Court further noted that the

appellant wife sent a notice through her

advocate to the respondent husband during the

pendency of mediation proceedings in the High

Court wherein she alleged that the respondent

was having another wife in USA whose identity

was concealed. This was based on the fact that

in his income tax return, the husband

mentioned the social security number of his

wife as 476-15-6010, a number which did not

belong to the appellant wife, but to some

American lady (Sarah Awegtalewis).

47. The High Court, however, recorded a

finding of fact accepting the explanation of the

husband that there was merely a typographical

error in giving social security number allotted to

the appellant which was 476-15-6030.

According to the High Court, taking undue

advantage of the error in social security

number, the appellant wife had gone to the

extent of making serious allegation that the

respondent had married an American woman

whose social security number was wrongly

typed in the income tax return of the

respondent husband.”

23. From the acceptance of the reasons of the High

Court by this Court, it is quite clear that subsequent

events which are established on the basis of non-disputed

7

(2009) 1 SCC 422

2

Page 24 material brought on record can be taken into

consideration. Having held that, the question would be

whether a decree for divorce on the ground of mental

cruelty can be granted. We have already opined that the

ground of desertion has not been proved. Having not

accepted the ground of desertion, the two issues that

remain for consideration whether the issue of mental

cruelty deserves to be accepted in the obtaining factual

matrix in the absence of a prayer in the relief clause, and

further whether the situation has become such that it can

be held that under the existing factual scenario it would

not be proper to keep the marriage ties alive. Learned

counsel for the appellant has urged with vehemence that

when dissolution of marriage was sought on the ground of

desertion alone, the issue of mental cruelty can neither be

raised nor can be addressed to. Regard being had to the

said submission, we are constrained to pose the question

whether in a case of the present nature we should require

the respondent-husband to amend the petition and direct

the learned Family Judge to consider the issue of mental

cruelty or we should ignore the fetter of technicality and

2

Page 25 consider the pleadings and evidence brought on record as

well as the subsequent facts which are incontrovertible so

that the lis is put to rest. In our considered opinion the

issue of mental cruelty should be addressed to by this

Court for the sake of doing complete justice. We think, it

is the bounden duty of this Court to do so and not to leave

the parties to fight the battle afresh after expiry of

thirteen years of litigation. Dealing with the plea of

mental cruelty which is perceptible from the material on

record would not affect any substantive right of the

appellant. It would be only condoning a minor technical

aspect. Administration of justice provokes our judicial

conscience that it is a fit case where the plentitude of

power conferred on this Court under Article 142 deserves

to be invoked, more so, when the ground is statutorily

permissible. By such exercise we are certain that it would

neither be supplanting the substantive law nor would it be

building a structure which does not exist. It would be

logical to do so and illogical to refrain from doing so.

24. Before we proceed to deal with the issue of mental

cruelty, it is appropriate to state how the said concept has

2

Page 26 been viewed by this Court. In Vinit Saxena v. Pankaj

Pandit

8

, while dealing with the issue of mental cruelty,

the Court held as follows: -

“31. It is settled by a catena of decisions that

mental cruelty can cause even more serious

injury than the physical harm and create in

the mind of the injured appellant such

apprehension as is contemplated in the

section. It is to be determined on whole facts

of the case and the matrimonial relations

between the spouses. To amount to cruelty,

there must be such wilful treatment of the

party which caused suffering in body or mind

either as an actual fact or by way of

apprehension in such a manner as to render

the continued living together of spouses

harmful or injurious having regard to the

circumstances of the case.

Xxx xxx xxx

35. Each case depends on its own facts and

must be judged on these facts. The concept

of cruelty has varied from time to time, from

place to place and from individual to

individual in its application according to

social status of the persons involved and

their economic conditions and other matters.

The question whether the act complained of

was a cruel act is to be determined from the

whole facts and the matrimonial relations

between the parties. In this connection, the

culture, temperament and status in life and

many other things are the factors which have

to be considered.”

8

(2006) 3 SCC 778

2

Page 27 25. In Samar Ghosh v. Jaya Ghosh

9

, this Court has

given certain illustrative examples wherefrom inference of

mental cruelty can be drawn. The Court itself has

observed that they are illustrative and not exhaustive. We

think it appropriate to reproduce some of the illustrations:

-

“(i) On consideration of complete matrimonial

life of the parties, acute mental pain, agony

and suffering as would not make possible for

the parties to live with each other could come

within the broad parameters of mental

cruelty.

(ii) On comprehensive appraisal of the entire

matrimonial life of the parties, it becomes

abundantly clear that situation is such that

the wronged party cannot reasonably be

asked to put up with such conduct and

continue to live with other party.

xxx xxx xxx

(iv) Mental cruelty is a state of mind. The

feeling of deep anguish, disappointment,

frustration in one spouse caused by the

conduct of other for a long time may lead to

mental cruelty.

xxx xxx xxx

(vii) Sustained reprehensible conduct, studied

neglect, indifference or total departure from

the normal standard of conjugal kindness

causing injury to mental health or deriving

sadistic pleasure can also amount to mental

cruelty.

xxx xxx xxx

9

(2007) 4 SCC 511

2

Page 28 (x) The married life should be reviewed as a

whole and a few isolated instances over a

period of years will not amount to cruelty.

The ill conduct must be persistent for a fairly

lengthy period, where the relationship has

deteriorated to an extent that because of the

acts and behaviour of a spouse, the wronged

party finds it extremely difficult to live with

the other party any longer, may amount to

mental cruelty.

xxx xxx xxx

(xiv) Where there has been a long period of

continuous separation, it may fairly be

concluded that the matrimonial bond is

beyond repair. The marriage becomes a

fiction though supported by a legal tie. By

refusing to sever that tie, the law in such

cases, does not serve the sanctity of

marriage; on the contrary, it shows scant

regard for the feelings and emotions of the

parties. In such like situations, it may lead to

mental cruelty.”

26. In the said case the Court has also observed thus: -

“99. … The human mind is extremely

complex and human behaviour is equally

complicated. Similarly human ingenuity has

no bound, therefore, to assimilate the entire

human behaviour in one definition is almost

impossible. What is cruelty in one case may

not amount to cruelty in the other case. The

concept of cruelty differs from person to

person depending upon his upbringing, level

of sensitivity, educational, family and cultural

background, financial position, social status,

customs, traditions, religious beliefs, human

values and their value system.

100. Apart from this, the concept of mental

cruelty cannot remain static; it is bound to

change with the passage of time, impact of

2

Page 29 modern culture through print and electronic

media and value system, etc. etc. What may

be mental cruelty now may not remain a

mental cruelty after a passage of time or vice

versa. There can never be any straitjacket

formula or fixed parameters for determining

mental cruelty in matrimonial matters. The

prudent and appropriate way to adjudicate

the case would be to evaluate it on its

peculiar facts and circumstances….”

27. In Vishwanath Agrawal, s/o Sitaram Agrawal

v. Sarla Vishwanath Agrawal

10

, while dealing with

mental cruelty, it has been opined thus: -

“22. The expression “cruelty” has an

inseparable nexus with human conduct or

human behaviour. It is always dependent upon

the social strata or the milieu to which the

parties belong, their ways of life, relationship,

temperaments and emotions that have been

conditioned by their social status.”

28. In the said case, analyzing the subsequent events

and the conduct of the wife, who was responsible for

publication in a newspaper certain humiliating aspects

about the husband, the Court held as follows: -

“In our considered opinion, a normal reasonable

man is bound to feel the sting and the

pungency. The conduct and circumstances

make it graphically clear that the respondent

wife had really humiliated him and caused

mental cruelty. Her conduct clearly exposits

that it has resulted in causing agony and

anguish in the mind of the husband. She had

publicised in the newspapers that he was a

10

(2012) 7 SCC 288

2

Page 30 womaniser and a drunkard. She had made wild

allegations about his character. She had made

an effort to prosecute him in criminal litigations

which she had failed to prove. The feeling of

deep anguish, disappointment, agony and

frustration of the husband is obvious.”

29. In U. Sree v. U. Srinivas

11

, the Court, taking note

of the deposition of the husband that the wife had

consistently ill treated him inasmuch as she had shown

her immense dislike towards his “sadhna” in music and

had exhibited total indifference to him, observed as

follows: -

“It has graphically been demonstrated that she

had not shown the slightest concern for the

public image of her husband on many an

occasion by putting him in a situation of

embarrassment leading to humiliation. She has

made wild allegations about the conspiracy in

the family of her husband to get him remarried

for the greed of dowry and there is no iota of

evidence on record to substantiate the same.

This, in fact, is an aspersion not only on the

character of the husband but also a maladroit

effort to malign the reputation of the family.”

30. In K. Srinivas Rao v. D.A. Deepa

12

, while

dealing with the instances of mental cruelty, the court

opined that to the illustrations given in the case of Samar

Ghosh certain other illustrations could be added. We

think it seemly to reproduce the observations: -

11

(2013) 2 SCC 114

12

(2013) 5 SCC 226

3

Page 31 “Making unfounded indecent defamatory

allegations against the spouse or his or her

relatives in the pleadings, filing of complaints or

issuing notices or news items which may have

adverse impact on the business prospect or the

job of the spouse and filing repeated false

complaints and cases in the court against the

spouse would, in the facts of a case, amount to

causing mental cruelty to the other spouse.”

31. Presently, we shall advert to the material on

record. It is luminous from it that the wife has made

allegations that the sister and brother-in-law of the

husband used to interfere in the day-to-day affairs of the

husband and he was caught in conflict. The said aspect

has really not been proven. It has been brought on record

that the sister and brother-in-law are highly educated and

nothing has been suggested to the husband in the cross-

examination that he was pressurized by his sister in any

manner whatsoever. It is her allegation that the sister and

brother-in-law of the husband were pressurizing him not to

allow the wife to prosecute higher studies and to keep her

as an unpaid servant in the house. On a studied

evaluation of the evidence and the material brought on

record it is demonstrable that the wife herself has

admitted that the husband had given his consent for her

3

Page 32 higher education and, in fact, assisted her. Thus, the

aforesaid allegation has not been proven. The allegation

that the husband was instigated to keep her at home as

an unpaid servant is quite a disturbing allegation when

viewed from the spectrum of gender sensitivity and any

sensitive person would be hurt when his behavior has

remotely not reflected that attitude. The second aspect

which has surfaced from the evidence is that the wife had

gone to the parental home for delivery and therefrom she

went to the hospital where she gave birth to a male child.

However, as the evidence would show, the husband

despite all his co-operation as a father, when had gone to

the hospital to bring the wife and child to his house, she

along with the child had gone to her parental house. This

aspect of the evidence has gone totally unchallenged.

Perceived from a social point of view, it reflects the

egocentric attitude of the wife and her non-concern how

such an act is likely to hurt the father of the child. The

next thing that has come in evidence is that the

respondent was not invited at the time of naming

ceremony. He has categorically disputed the suggestion

3

Page 33 that he and his family members were invited to the

ceremony. It is interesting to note that a suggestion has

been given that they did not attend the ceremony as in

the invitation card the names of the parents of the

husband had not been printed. It has been asserted by

the husband that the said incident had caused him

tremendous mental pain. View from a different angle, it

tantamounts to totally ignoring the family of the husband.

32. Another incident deserves to be noted. The wife

went to Gulbarga to join her studies and the husband was

not aware of it and only come to know when one professor

told about it. Thereafter he went to Gulbarga and stayed

in a hotel and met the wife in the hostel on both the days.

Despite his request to come to the house she showed

disinclination. When he enquired about the child, he was

told that the child was in her mother’s house. These are

the incidents which are antecedent to the filing of the

petition.

33. We have already stated the legal position that

subsequent events can be taken note of. After the

judgment and decree was passed by the learned Family

3

Page 34 Judge, the husband sent a notice through his counsel

dated 14.7.2004 and intimated her as follows: -

“According to the operative portion of the order,

my client has to welcome you to join him with

the child within three months which please

note.

My client’s address is Dr. B.V. Ravi, M.D.,

residing in No. 428. 2

nd

Across, 6

th

Main, 3

rd

Stage, 3

rd

Block, Basaveshwaranagar,

Bangalore-79 and his Telephone No. 23229865.

In obedience to the Hon’ble Court order, you

called upon to join Dr. B.V. Ravi to the above

said address any day after 18

th

of July, 2004, as

this period upto 17

th

is inauspicious because of

“Ashada”.”

34. As it appears, she did not join and the husband

was compelled to send a telegram. Thereafter, on

13.8.2004 a reply was sent on her behalf that she would

be joining after 15.8.2004 but the exact date was not

intimated. Thereafter, on 14.8.2004 a reply was sent to

the legal notice dated 14.7.2004 sent by the husband. It

is appropriate to reproduce the relevant two paragraphs: -

3

Page 35 “In this context, we hereby inform you that our

client will be coming to join your client in the

above said address along with the child on

Sunday the 22

nd

August 2004 as the auspicious

NIJASHRAVANA MONTH commences from 16

th

August 2004.

Further our client expects reasonable

amount of care and cordiality from your client’s

side. Please ensure the same.”

35. The purpose of referring to these communications

is that despite obtaining decree for restitution of conjugal

rights the wife waited till the last day of the expiration of

the period as per the decree to join the husband. There

may be no legal fallacy, but the attitude gets reflected.

The reply also states that there is expectation of

reasonable amount of care and cordiality. This reflects

both, a sense of doubt and a hidden threat. As the facts

unfurl, the wife stays for two months and then leaves the

matrimonial home and lodges the first information report

against the husband and his mother and sister for the

offences punishable under Sections 498A, 506/34 of the

Indian Penal Code and under the provisions of Dowry

3

Page 36 Prohibition Act. The husband suffers a day’s custody and

the mother and the sister availed anticipatory bail.

36. The High Court has taken note of all these aspects

and held that the wife has no intention to lead a normal

marital life. That apart, the High Court has returned a

finding that the marriage has irretrievably been broken

down. Of course, such an observation has been made on

the ground of conduct. This Court in certain cases,

namely, G.V.N. Kameswara Rao v. G. Jabilli

13

,

Parveen Mehta v. Inderjit Mehta

14

, Vijayakumar R.

Bhate v. Neela Vijayakumar Bhate

15

, Durga

Prasanna Tripathy v. Arundhati Tripathy

16

, Naveen

Kohli v. Neelu Kohli

17

and Samar Ghosh v. Jaya

Ghosh (supra), has invoked the principle of irretrievably

breaking down of marriage.

37. For the present, we shall restrict our delineation to

the issue whether the aforesaid acts would constitute

mental cruelty. We have already referred to few

authorities to indicate what the concept of mental cruelty

13

(2002) 2 SCC 296

14

(2002) 5 SCC 706

15

(2003) 6 SCC 334

16

(2005) 7 SCC 353

17

(2006) 4 SCC 558

3

Page 37 means. Mental cruelty and its effect cannot be stated with

arithmetical exactitude. It varies from individual to

individual, from society to society and also depends on the

status of the persons. What would be a mental cruelty in

the life of two individuals belonging to particular strata of

the society may not amount to mental cruelty in respect of

another couple belonging to a different stratum of society.

The agonized feeling or for that matter a sense of

disappointment can take place by certain acts causing a

grievous dent at the mental level. The inference has to be

drawn from the attending circumstances. As we have

enumerated the incidents, we are disposed to think that

the husband has reasons to feel that he has been

humiliated, for allegations have been made against him

which are not correct; his relatives have been dragged

into the matrimonial controversy, the assertions in the

written statement depict him as if he had tacitly conceded

to have harboured notions of gender insensitivity or some

kind of male chauvinism, his parents and he are ignored in

the naming ceremony of the son, and he comes to learn

from others that the wife had gone to Gulbarga to

3

Page 38 prosecute her studies. That apart, the communications,

after the decree for restitution of conjugal rights, indicate

the attitude of the wife as if she is playing a game of

Chess. The launching of criminal prosecution can be

perceived from the spectrum of conduct. The learned

Magistrate has recorded the judgment of acquittal. The

wife had preferred an appeal before the High Court after

obtaining leave. After the State Government prefers an

appeal in the Court of Session, she chooses to withdraw

the appeal. But she intends, as the pleadings would show,

that the case should reach the logical conclusion. This

conduct manifestly shows the widening of the rift between

the parties. It has only increased the bitterness. In such a

situation, the husband is likely to lament in every breath

and the vibrancy of life melts to give way to sad story of

life.

38. From this kind of attitude and treatment it can be

inferred that the husband has been treated with mental

cruelty and definitely he has faced ignominy being an

Associate Professor in a Government Medical College.

When one enjoys social status working in a Government

3

Page 39 hospital, this humiliation affects the reputation. That

apart, it can be well imagined the slight he might be

facing. In fact, the chain of events might have compelled

him to go through the whole gamut of emotions. It

certainly must have hurt his self-respect and human

sensibility. The sanguine concept of marriage presumably

has become illusory and it would not be inapposite to say

that the wife has shown anaemic emotional disposition to

the husband. Therefore, the decree of divorce granted by

the High Court deserves to be affirmed singularly on the

ground of mental cruelty.

39. Presently, we shall proceed to deal with grant of

maintenance. Both the appellant and the respondent are

doctors and have their respective jobs. The son is hardly

sixteen years old and definitely would require financial

support for education and other supportive things to lead

a life befitting his social status. The High Court, while

granting a decree for divorce should have adverted to it.

However, we do not think it appropriate to keep anything

alive in this regard between the parties. The controversy

is to be put to rest on this score also. Considering the

3

Page 40 totality of circumstances, the status the appellant enjoys

and the strata to which the parties belong, it becomes the

bounden duty of the respondent to provide for

maintenance and education for the son who is sixteen

years old. At this juncture, we may note that a proceeding

was initiated before the learned Principal Judge, Family

Court, Bangalore and in the said proceeding the learned

Principal Judge passed the following order: -

“Matter is settled before the mediation

centre where in parties have entered into a

memorandum of settlement.

Contents of the Memorandum of

Settlement are admitted by the Parties. Court

is satisfied that the same is voluntary.

As per the terms of settlement para 5

clause (i) petitioner has deposited Rs.3,00,000/-

in the name of minor child in Karnataka Bank,

copy of fixed deposit receipt and R.D. Account

pass book are filed along with memo. Hence

petition is allowed in terms of settlement.

Memorandum of settlement shall be a part

of the decree.”

40. Learned counsel for the respondent would submit

that the amount has been settled. Though there has been

a settlement of Rs.3,00,000/- yet that was at a different

time and under different circumstances. The present

appeal was pending. The duty of this Court is to see that

4

Page 41 the young son born in the wedlock must get acceptable

comfort as well as proper education. It is the duty of the

Court also to see that a minor son should not live in

discomfort or should be deprived of requisite modern

education. We are conscious, the appellant is earning but

that does not necessarily mean that the father should be

absolved of his liability. Regard being had to the social

status and strata and the concept of effective availing of

education we fix a sum of Rs.25,00,000/- (twenty five lacs)

excluding the amount already paid towards the

maintenance and education of the son. The said amount

shall be deposited by the respondent within a period of six

months before the learned Principal Judge, Family Court at

Bangalore and the amount shall be kept in a fixed deposit

in a nationalized bank in the joint account of the appellant

and the minor son so that she can draw quarterly interest

and expend on her son. After the son attains majority the

joint account shall continue and they would be at liberty to

draw the amount for the education or any urgent need of

the son.

4

Page 42 41. With the aforesaid directions, we affirm the decree

for divorce passed by the High Court. The appeal stands

disposed of accordingly but without any order as to costs.

.....................................................J.

[Sudhansu Jyoti Mukhopadhaya]

.....................................................J.

[Dipak Misra]

New Delhi;

June 30, 2014.

4