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A.F.R.

Reserved on: 04.09.2019

Delivered on 20.09.2019

Court No. - 34

Case :- FIRST APPEAL No. - 448 of 2015

Appellant :- Girish Chandra Srivastava

Respondent :- Smt. Reeta Srivastava

Counsel for Appellant :- Sriprakash Dwivedi

Counsel for Respondent :- Ratnesh Khare

Hon'ble Sudhir Agarwal,J.

Hon'ble Rajeev Misra,J.

(Delivered by Hon'ble Rajeev Misra,J)

1.This is plaintiff's appeal under section 19 of Family Court's Act

1984 (hereinafter referred to as “Act, 1984”) arising out of judgement

dated 16.7.2015 and decree dated 23.7.2015, passed by Principal Judge,

Family Court, Varanasi in Marriage Petition No. 536 of 2013 (Girish

Chandra Srivastava Vs. Smt. Reeta Srivastava) under section 13 of Hindu

Marriage Act , 1955 (hereinafter referred to as “Act, 1955”) whereby,

Court below has dismissed marriage petition filed by plaintiff-appellant

for divorce on the grounds of cruelty, adultery and desertion.

2.According to plaint allegations, marriage of plaintiff-appellant was

solemnized with Reeta Srivastava on 30.11.2001 in a very simple manner.

It is the case of plaintiff-appellant that defendant-respondent, without

taking consent of plaintiff-appellant, left her marital home in January,

2002 and is residing at her parental home since then. When all attempts by

plaintiff-appellant for conciliation between parties failed and defendant-

respondent did not return to her matrimonial home to live along plaintiff-

appellant, Marriage Petition No. 536 of 2013 (Girish Chandra Srivastava

Vs. Smt. Reeta Srivastava) under section 13 of Act, 1955 was filed by

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plaintiff-appellant for decree of divorce on grounds of cruelty, adultery

and desertion. Apart from factual pleas in respect of aforesaid grounds, it

was also pleaded in plaint that marriage between parties has been got

solemnized by playing fraud. At the time of marriage, age of plaintiff was

43 years, whereas defendant-respondent was aged about 47 years.

However, aforesaid fact was concealed and age of defendant-respondent

was disclosed as 32 years. It was also alleged that at time of marriage

defendant-respondent is younger to her brother Pankaj Khare, whereas

true and correct fact is even at the time of marriage, defendant-respondent

was elder to plaintiff-appellant. In elaboration of aforesaid ground, it was

also pleaded that mensuration cycle of defendant-respondent has come to

an end on account of her age. As such, defendant-respondent is incapable

of reproducing a child. It was then pleaded that defendant-respondent

committed cruelty both physical and mental upon plaintiff-appellant and

his family members. Defendant-respondent was alleged to possess M.A.

Degree, whereas, plaintiff-appellant is just High School. On account of

such disparity, defendant-respondent used to make objectionable

comments against plaintiff-appellant. It was also stated that defendant-

respondent has failed to discharge her spousal obligations as well as her

marriage obligations causing physical and mental cruelty to plaintiff-

appellant. Defendant-respondent has refused to perform household jobs

and has further entered into a scuffle with parents of plaintiff-appellant.

False allegation regarding plaintiff-appellant being drunkard were also

leveled by defendant-respondent causing mental agony to plaintiff-

appellant. On the question of adulteress character of defendant-

respondent, it was pleaded by plaintiff-appellant that defendant-

respondent is in illegitimate relationship with Mahesh Khare her 'Jija'

(husband of sister) and out of aforesaid illegal relationship, son has been

born aged about 12 years. With respect to desertion by defendant-

respondent, it was alleged by plaintiff-appellant that defendant-respondent

has left house of plaintiff-appellant in January, 2002 without consent of

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plaintiff-appellant and inspite of best efforts for conciliation and request

made by plaintiff-appellant requesting defendant-respondent to return to

her marital home and co-habitate with plaintiff-appellant having failed,

plaintiff-appellant filed matrimonial petition for grant of divorce.

3.Summons were issued to defendant-respondent but in spite of that,

defendant-respondent did not appear. Consequently, service upon

defendant-respondent was affected through substituted serviced by way of

publication in daily news paper 'Aaj'. Inspite of aforesaid, defendant-

respondent did not appear to contest marriage petition filed by plaintiff-

appellant. Accordingly, Court below held service upon defendant-

respondent to be sufficient. Consequently, marriage petition filed by

plaintiff-appellant proceeded ex-parte against defendant-respondent.

4.Plaintiff-appellant, in order to prove his case, adduced only himself

as P.W.1. He also filed six documentary evidence i.e. paper Nos. 8-Ga (I)

to 8-Ga (VI) vide list of documents (Paper No. 7 Ga), in proof of his case.

5.To adjudicate marriage petition filed by plaintiff-appellant, Court

below did not frame specific issues but independently considered grounds

pleaded in plaint for grant of a decree of divorce.

6.Court below considered allegations made in plaint, oral testimony

of plaintiff-appellant and documentary evidence adduced by plaintiff-

appellant, while evaluating grounds for divorce pleaded in plaint. Upon

consideration and evaluation of same, Court below concluded that none of

the grounds raised by plaintiff-appellant are cogent enough to allow

marriage petition filed by plaintiff-appellant and consequently, declined

to grant a decree of divorce as prayed for.

7. It was pleaded by plaintiff-appellant that marriage of parties has

been solemnized by playing fraud inasmuch as age of defendant-

respondent was more than plaintiff-appellant at time of marriage but the

said fact was deliberately concealed.

8.Court below took the view that on the aforesaid ground, marriage

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petition ought to have been filed within a period of one year from date of

marriage or from date of knowledge of aforesaid fact. Admittedly,

marriage of plaintiff-appellant with defendant-respondent was solemnized

on 30.11.2001, whereas Marriage Petition has been filed in the year 2013

vide plaint dated 30.5.2013, without disclosing date on which plaintiff-

appellant discovered aforesaid fact. As such, marriage petition filed by

plaintiff-appellant on aforesaid ground is barred by limitation.

9. We have considered the finding recorded by Court below in respect

of ground urged by plaintiff-appellant that fraud has been played

inasmuch as defendant-respondent is elder to plaintiff-appellant but said

fact was concealed at time of marriage between parties. As such, same has

been got solemnized by playing fraud. Section 12 of Act 1955 relates to

voidable marriages. For ready reference Section 12 of Act 1955 is

reproduced herein below:

“12 Voidable marriages . (1) Any marriage solemnised,

whether before or after the commencement of this Act, shall

be voidable and may be annulled by a decree of nullity on

any of the following grounds, namely:-

(a) that the marriage has not been consummated owing to

the impotence of the respondent; or]

(b) that the marriage is in contravention of the condition

specified in clause (ii) of section 5; or

(c) that the consent of the petitioner, or where the consent of

the guardian in marriage of the petitioner 13 [was required

under section 5 as it stood immediately before the

commencement of the Child Marriage Restraint

(Amendment) Act, 1978 (2 of 1978)], the consent of such

guardian was obtained by force or by fraud as to the nature

of the ceremony or as to any material fact or circumstance

concerning the respondent; or

(d) that the respondent was at the time of the marriage

pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1),

no petition for annulling a marriage:-

(a) on the ground specified in clause (c) of sub-section (1)

shall be entertained if-

(i) the petition is presented more than one year after the

force had ceased to operate or, as the case may be, the

fraud had been discovered; or

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(ii) the petitioner has, with his or her full consent, lived

with the other party to the marriage as husband or wife after

the force had ceased to operate or, as the case may be, the

fraud had been discovered;

(b) on the ground specified in clause (d) of sub-section (1)

shall be entertained unless the court is satisfied

(i) that the petitioner was at the time of the marriage

ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a

marriage solemnised before the commencement of this Act

within one year of such commencement and in the case of

marriages solemnised after such commencement within one

year from the date of the marriage; and

(iii) that marital intercourse with the consent of the

petitioner has not taken place since the discovery by the

petitioner of the existence of the said ground.”

(Emphasis added)

10. When finding recorded by Court below on the question that

marriage of parties was got solemnized by playing fraud is examined in

the light of provisions contained in Section 12 of Act, 1955, it is explicitly

clear that finding recorded by Court below on the aforesaid question is

perfectly just and legal. Plaintiff-appellant has himself not detailed in his

marriage petition as to when the factum that age of Defendant-respondent

is more than Plaintiff-appellant was discovered by him. In the absence of

pleading in that regard in plaint itself, suit filed by Plaintiff-appellant

stood clearly barred under Section 12(2) (a) (i) of the Act, 1955.

11. Plaintiff-appellant also pleaded commission of cruelty upon his

parents by Defendant-respondent. Divorce can be granted on the ground

of cruelty as per section 13 (1) (i-a). For ready reference, same is

reproduced herein below:

“(1) Any marriage solemnized, whether before or after the

commencement of this Act, may, on a petition presented by either

the husband or the wife, be dissolved by a decree of divorce on the

ground that the other party--

(i-a) has, after the solemnization of the marriage, treated the

petitioner with cruelty; or ”

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12.Said issue was considered by Court below but refused to be

accepted. Court below concluded that in order to prove 'cruelty', Plaintiff-

appellant has not produced any supporting documentary evidence nor has

adduced any independent witness to prove the same.

13. Admittedly, Plaintiff-appellant only made allegations of cruelty

being committed by Defendant-respondent in the plaint. However,

Plaintiff-appellant failed to plead any specific instance of 'cruelty'. Once it

was alleged by Plaintiff-appellant that 'cruelty' was committed by

Defendant-respondent upon his parents, then plaintiff-appellant ought to

have detailed specific instances of 'cruelty' alleged to have been

committed by defendant-respondent. Apart from above, parents of

plaintiff-appellant were the best persons to prove commission of 'cruelty'

upon them by defendant-respondent. However, for reasons best known to

Plaintiff-appellant he did not adduce his own parents to prove commission

of cruelty by defendant-respondent as alleged by him. We therefore find

no illegality in the finding recorded by Court below on aforesaid issue.

Consequently, we affirm the same.

14.It was then pleaded by plaintiff-appellant that defendant-respondent

does not perform household jobs which is unbecoming of a wife. On this

factual premise plaintiff-appellant pleaded for grant of a decree of

divorce. However, Court below has considered the aforesaid plea raised

by plaintiff-appellant but concluded that same by itself is not sufficient to

grant decree of divorce as prayed for by plaintiff-appellant.

15.Section 13 of Act, 1955 provides for grounds of divorce. For ready

reference Section 13 of Act, 1955 is reproduced herein-under

“ 13 Divorce. --(1) Any marriage solemnized, whether before or after the

commencement of this Act, may, on a petition presented by either the

husband or the wife, be dissolved by a decree of divorce on the ground

that the other party--

[(i) has, after the solemnization of the marriage, had voluntary sexual

intercourse with any person other than his or her spouse; or

(i-a) has, after the solemnization of the marriage, treated the petitioner

with cruelty; or

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(i-b) has deserted the petitioner for a continuous period of not less than

two years immediately preceding the presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

[(iii) has been incurably of unsound mind, or has been suffering

continuously or intermittently from mental disorder of such a kind and to

such an extent that the petitioner cannot reasonably be expected to live

with the respondent.

Explanation.--In this clause,--

(a) the expression “mental disorder” means mental illness, arrested

or incomplete development of mind, psychopathic disorder or any

other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent

disorder or disability of mind (whether or not including sub-

normality of intelligence) which results in abnormally aggressive or

seriously irresponsible conduct on the part of the other party, and

whether or not it requires or is susceptible to medical treatment; or]

(iv) has, [***] been suffering from a virulent and incurable form of

leprosy; or

(v) has, [***] been suffering from venereal disease in a

communicable form; or

(vi) has renounced the world by entering any religious order; or

(vi) has not been heard of as being alive for a period of seven years or

more by those persons who would naturally have heard of it, had that

party been alive; [***]

[ Explanation. In this sub-section, the expression desertion— — —

means the desertion of the petitioner by the other party to the marriage

without reasonable cause and without the consent or against the wish of

such party, and includes the wilful neglect of the petitioner by the other

party to the marriage, and its grammatical variations and cognate

expressions shall be construed accordingly.]

(viii) [***]

(ix) [***]

[(1-A) Either party to a marriage, whether solemnised before or

after the commencement of this Act, may also present a petition for the

dissolution of the marriage by a decree of divorce on the ground--

(i) that there has been no resumption of cohabitation as between the

parties to the marriage for a period of 22 [one year] or upwards after the

passing of a decree for judicial separation in a proceeding to which they

were parties; or

(ii) that there has been no restitution of conjugal rights as between the

parties to the marriage for a period of 22 [one year] or upwards after the

passing of a decree for restitution of conjugal rights in a proceeding to

which they were parties.]

(2) A wife may also present a petition for the dissolution of her

marriage by a decree of divorce on the ground,---

(i) in the case of any marriage solemnised before the commencement of

this Act, that the husband had married again before such commencement

or that any other wife of the husband married before such

commencement was alive at the time of the solemnisation of the

marriage of the petitioner: Provided that in either case the other wife is

alive at the time of the presentation of the petition; or

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(ii) that the husband has, since the solemnisation of the marriage, been

guilty of rape, sodomy or [bestiality; or]

[(iii) that in a suit under section 18 of the Hindu Adoptions and

Maintenance Act, 1956 (78 of 1956), or in a proceeding under section

125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the

corresponding section 488 of the Code of Criminal Procedure, 1898 (5

of 1898)], a decree or order, as the case may be, has been passed against

the husband awarding maintenance to the wife notwithstanding that she

was living apart and that since the passing of such decree or order,

cohabitation between the parties has not been resumed for one year or

upwards; or

[(iv) that her marriage (whether consummated or not) was solemnised

before she attained the age of fifteen years and she has repudiated the

marriage after attaining that age but before attaining the age of eighteen

years.]

Explanation. --This clause applies whether the marriage was solemnised

before or after the commencement of the Marriage Laws (Amendment)

Act, 1976 (68 of 1976).]

STATE AMENDMENT

Uttar Pradesh.-- In its application to Hindus domiciled in Uttar Pradesh

and also when either party to the marriage was not at the time of

marriage a Hindu domiciled in Uttar Pradesh, in section 13--

(i) in sub-section (1), after clause (i) insert (and shall be deemed

always to have been inserted) the following

“(1-a) has persistently or repeatedly treated the petitioner

with such cruelty as to cause a reasonable apprehension in the

mind of the petitioner that it will be harmful or injurious for

the petitioner to live with the other party; or”, and

(ii) for clause (viii) (since repealed) substituted and deem always

to have been so substituted for following.

“ (viii) has not resumed cohabitation after the passing of a

decree for judicial separation against that party and--

(a) a period of two years has elapsed since the passing of such

decree, or

(b) the case is one of exceptional hardship to the petitioner

or of exceptional depravity on the part of other party; or”.”

16.Section 13 (I) (i-a) of Act, 1955 provides for grant of decree of

divorce on the ground of cruelty. The term 'cruelty' has not been defined

in Act, 1955. Consequently, same has been subject-matter of debate for

long.

17. Recently a Division Bench of this Court in Smt. Sarita Devi Vs.

Sri Ashok Kumar Singh reported in 2018 (3) AWC 2328 has

considered the question of cruelty in detail in paragraphs 16, 17, 18, 19,

20, 21, 22, 23, 24, 25, 27 and 29 which reads as under:-

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“16. In Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 Court

considered the concept of cruelty and referring to Oxford

Dictionary defines 'cruelty' as 'the quality of being cruel;

disposition of inflicting suffering; delight in or indifference to

another's pain; mercilessness; hard-heartedness'.

17. In Black's Law Dictionary, 8th Edition, 2004, term "mental

cruelty" has been defined as, "a ground for divorce, one spouse's

course of conduct (not involving actual violence) that creates such

anguish that it endangers the life, physical health, or mental health

of the other spouse."

18. The concept of cruelty has been summarized in Halsbury's

Laws of England, Vol.13, 4th Edition Para 1269, as under:

"The general rule in all cases of cruelty is that the entire

matrimonial relationship must be considered, and that rule

is of special value when the cruelty consists not of violent

acts but of injurious reproaches, complaints, accusations or

taunts. In cases where no violence is averred, it is

undesirable to consider judicial pronouncements with a

view to creating certain categories of acts or conduct as

having or lacking the nature or quality which renders them

capable or incapable in all circumstances of amounting to

cruelty; for it is the effect of the conduct rather than its

nature which is of paramount importance in assessing a

complaint of cruelty. Whether one spouse has been guilty of

cruelty to the other is essentially a question of fact and

previously decided cases have little, if any, value. The court

should bear in mind the physical and mental condition of

the parties as well as their social status, and should consider

the impact of the personality and conduct of one spouse on

the mind of the other, weighing all incidents and quarrels

between the spouses from that point of view; further, the

conduct alleged must be examined in the light of the

complainant's capacity for endurance and the extent to

which that capacity is known to the other spouse.

Malevolent intention is not essential to cruelty but it is an

important element where it exits."

19. In 24 American Jurisprudence 2d, the term "mental cruelty" has

been defined as under:

"Mental Cruelty as a course of unprovoked conduct toward

one's spouse which causes embarrassment, humiliation, and

anguish so as to render the spouse's life miserable and

unendurable. The plaintiff must show a course of conduct on

the part of the defendant which so endangers the physical or

mental health of the plaintiff as to render continued

cohabitation unsafe or improper, although the plaintiff need

not establish actual instances of physical abuse. "

20. One of the earliest decision considering "mental cruelty" we

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find is, N.G. Dastane v. S. Dastane (1975) 2 SCC 326, wherein

Court has said:

"The enquiry therefore has to be whether the conduct

charges as cruelty is of such a character as to cause in the

mind of the petitioner a reasonable apprehension that it will

be harmful or injurious for him to live with the respondent. "

21. In Sirajmohmedkhan Janmohamadkhan v. Haizunnisa

Yasinkhan and Anr. (1981) 4 SCC 250 Court said that a concept of

legal cruelty changes according to the changes and advancement of

social concept and standards of living. With the advancement of our

social conceptions, this feature has obtained legislative recognition,

that a second marriage is a sufficient ground for separate residence

and maintenance. Moreover, to establish legal cruelty, it is not

necessary that physical violence should be used. Continuous ill-

treatment, cessation of marital intercourse, studied neglect,

indifference on the part of the husband, and an assertion on the part

of the husband that the wife is unchaste are all factors which lead to

mental or legal cruelty.

22. In Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105, Court

observed that word 'cruelty' has not been defined in Act, 1955 but

legislature, making it a ground for divorce under Section 13(1)(i)(a)

of Act, 1955, has made it clear that conduct of party in treatment of

other if amounts to cruelty actual, physical or mental or legal is a

just reason for grant of divorce. Cruelty may be mental or physical,

intentional or unintentional. If it is physical, it is a question of fact

about degree. If it is mental, the enquiry must begin as to the nature

of cruel treatment and then as to the impact of such treatment on the

mind of the spouse. Whether it caused reasonable apprehension that

it would be harmful or injurious to live with the other, ultimately, is

a matter of inference to be drawn by taking into account the nature

of conduct and its effect on the complaining spouse. There may,

however, be cases where 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, cruelty will be established if conduct itself is proved

or admitted. The absence of intention should not make any

difference in the case, if by ordinary sense in human affairs, the act

complained of could otherwise be regarded as cruelty.

23. In V. Bhagat v. D. Bhagat (Mrs.), (1994) 1 SCC 337 considering

the concept of "mental cruelty" in the context of Section 13(1)(i)(a)

of Act, 1984, Court said that it can be defined as conduct which

inflicts upon the other party such mental pain and suffering as

would make it not possible for that party to live with other. In other

words, mental cruelty must be of such a nature that the parties

cannot reasonably be expected to live together. The situation must

be such that the wronged party cannot reasonably be asked to put up

with such conduct and continue to live with other party. It is not

necessary to prove that mental cruelty is such as to cause injury to

the health of other party. While arriving at such conclusion, regard

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must be had to the social status, educational level of parties, the

society they move in, the possibility or otherwise of the parties ever

living together in case they are already living apart and all other

relevant facts and circumstances which it is neither possible nor

desirable to set out exhaustively. What is cruelty in one case may

not amount to cruelty in another case. It is thus has to be determined

in each case having regard to the facts and circumstances of each

case.

24. In Chetan Dass v. Kamla Devi, (2001) 4 SCC 250, Court

observed that matrimonial matters relates to delicate human and

emotional relationship. It demands mutual trust, regard, respect,

love and affection with sufficient play for reasonable adjustments

with spouse. The relationship has to conform to the social norms as

well. There is no scope of applying the concept of "irretrievably

broken marriage" as a straitjacket formula for grant of relief of

divorce but it has to be considered in the backdrop of facts and

circumstances of the case concerned.

25. In Savitri Pandey v. Prem Chandra Panadey, (2002) 2 SCC 73,

Court held that mental cruelty is the conduct of other spouse which

causes mental suffering or fear to matrimonial life of other. Cruelty

postulates a treatment of party to marriage with such conduct as to

cause a reasonable apprehension in his or her mind that it would be

harmful or injurious to live with other party. Cruelty has to be

distinguished from ordinary wear and tear of family life.

27. In Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778 Court

held that complaints and reproaches, sometimes of ordinary nature,

may not be termed as 'cruelty' but their continuance or persistence

over a period of time may do so which would depends on the facts

of each case and have to be considered carefully by the Court

concerned.

29. In Samar Ghosh vs. Jaya Ghosh (supra) Court said that though

no uniform standard can be laid down but there are some instances

which may constitute mental cruelty and the same are illustrated

as under:

"(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.

(iii) Mere coldness or lack of affection cannot amount

to cruelty, frequent rudeness of language, petulance of

manner, indifference and neglect may reach such a degree

that it makes the married life for the other spouse absolutely

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intolerable.

(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.

(v) A sustained course of abusive and humiliating

treatment calculated to torture, discommode or render

miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behavior of

one spouse actually affecting physical and mental health of

the other spouse. The treatment complained of and the

resultant danger or apprehension must be very grave,

substantial and weighty.

(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.

(viii) The conduct must be much more than jealousy,

selfishness, possessiveness, which causes unhappiness and

dissatisfaction and emotional upset may not be a ground for

grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and

tear of the married life which happens in day to day life

would not be adequate for grant of divorce on the ground of

mental cruelty.

(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 behavior of a spouse, the

wronged party finds it extremely difficult to live with the

other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of

sterilization without medical reasons and without the consent

or knowledge of his wife and similarly if the wife undergoes

vasectomy or abortion without medical reason or without the

consent or knowledge of her husband, such an act of the

spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse

for considerable period without there being any physical

incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after

marriage not to have child from the marriage may amount to

cruelty.

(xiv) Where there has been a long period of continuous

separation, it may fairly be concluded that the matrimonial

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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."

18.The aforesaid Division Bench judgement clearly explains different

shades of 'cruelty' which by itself are sufficient enough to dissolve the

marriage on the ground of cruelty. The aforesaid judgement also

prescribes the mode as to how 'cruelty' has to be proved and in what

decree it has to be proved so as to grant of decree of divorce on the

ground of 'cruelty'.

19.With the aid of the aforesaid material, Court has now to examine,

whether plaintiff-appellant was able to successfully establish cruelty on

the part of defendant- respondent and therefore, entitled to the decree of

divorce on the aforesaid ground.

20. From perusal of plaint, we find that allegation of cruelty made by

plaintiff-appellant is only allegation but does not give any specific

instance or instances of cruelty having been committed by Defendant-

respondent. Merely on the allegation of cruelty having been committed

without giving specific instances in support of such allegation, same

cannot be considered by Court. In the present case, Plaintiff-appellant has

failed to plead specific instances of cruelty. Plea raised by plaintiff-

appellant is not covered under judgement of Apex Court in Samar Ghosh

(Supra) wherein Apex Court has given various instances of mental cruelty.

Plea raised by plaintiff-appellant neither singularly nor when considered

cumulatively along with other grounds pleaded in plaint, is sufficient

enough to grant decree of divorce. Consequently, we do not find any error

much less an error on face of record in conclusion drawn by Court below

that decree of divorce cannot be granted on ground that wife has refused

to perform household job.

21. Plaintiff-appellant in support of his divorce suit further pleaded

that defendant-respondent was in illegal relationship with her 'Jija' i.e.

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husband of sister namely Mahesh Khare. From aforesaid illegal

relationship, a son aged about 12 years was born. Court below refused to

entertain this ground as Rule 6 of The Hindu Marriage and Divorce Rules,

1956 (hereinafter referred to as “Rules, 1956”) were not complied with

inasmuch as Mahesh Khare was not impleaded as a party to the

proceedings. Apart from above bare pleading no cogent evidence has been

adduced by Plaintiff-appellant to substantiate aforesaid plea. Once

infidelity of wife of Defendantn-respondent i.e. wife was challenged, it

was incombent upon Plaintiff-appellant to apply for D.N.A. Test of the

child as well as Mahesh Khare. However, no such step was taken by

Plaintiff-appellant. Consequently, Court below rejected the aforesaid

ground for grant of divorce prayed for by Plaintiff-appellant. He has also

not impleaded the person allegedly involved in adultery with defendant-

respondent.

22. We have examined the finding recorded by Court below with

regard to adulterous character of Defendant-respondent as alleged by

Plaintiff-appellant. For ready reference Rule 6 of Rules, 1956 is

reproduced herein-under:-

“6. Necessary Parties- (a) In every petition for divorce or

judicial separation on the ground that the respondent is living

in adultery or has committed adultery with any person, the

petitioner shall make the alleged adulterer or adulteress a co-

respondent to the petition unless he or she is excused by the

Court from doing so on any of the following grounds:

(i) that the name of such person is unknown to the petitioner

although he has made due efforts for discovery,

(ii) that such person is dead;

(iii) that the respondent if a woman is leading the life of a

prostitute and that the petitioner knows of no person with

whom adultery has been committed; or

(iv) Any other reason that the Court considers sufficient.

(b) In every petition under Sec.13 (1) and (2) of the Act, the

petitioner shall make 'the other wife' mentioned in that section

a co-respondent.

(c) In every petition under Sec. 11 of the Act on the ground

15

that the condition in Sec. 5 (1) is contravened the petitioner

shall make the spouse alleged to be living at the time of the

marriage a co-respondent.

(d) If a petitioner does not make the alleged adulterer or

adulteress a co-respondent he shall at the time of presenting

the petition file a separate application supported by an affidavit

giving the reasons.”

23.Admittedly, Rule 6 of Rules, 1956 is mandatory in nature and

therefore, Plaintiff-appellant was obliged to implead Mahesh Khare i.e.

'Jija' of Defendant-respondent as a party to the marriage petition.

24.That apart, we find that once ifidelity of wife was challenged

stating that a son was born out of cohabitation with Mahesh Khare i.e.

'Jija' of Defendant-respondent, it was incumbent upon Plaintiff-appellant

to apply for D.N.A. Test of alleged illegitimate son and Mahesh Khare.

However, for reasons best known to Plaintiff-appellant no such steps were

taken. Reference in this regard be made to judgement of Apex Court in

Dipanwita Roy Vs. Ronobroto Roy, 2015 (1) SCC 365 in

which Court considered the question of presumption arising out under

section 112 and the necessity of holding D.N.A. test. Court referred to

provisions of Section 112 and thereafter observed as follows in

paragraphs 9, 10, 11, 13, 14, 15, 17, 18:

“9. Learned counsel for the appellant-wife, in the first instance,

invited our attention to Section 112 of the Indian Evidence Act. The

same is being extracted hereunder:

“112. Birth during marriage, conclusive proof of legitimacy- The fact

that any person was born during the continuance of a valid marriage

between his mother and any man, or within two hundred and eighty

days after its dissolution, the mother remaining unmarried, shall be

conclusive proof that he is the legitimate son of that man, unless it

can be shown that the parties to the marriage had no access to each

other at any time when he could have been begotten.”

Based on the aforesaid provision, learned counsel for the appellant-

wife drew our attention to decision rendered by the Privy Council in

Karapaya Servai v. Mayandi, AIR 1934 PC 49, wherein it was held,

that the word 'access' used in Section 112 of the Evidence Act,

connoted only the existence of an opportunity for marital

intercourse, and in case such an opportunity was shown to have

existed during the subsistence of a valid marriage, the provision by a

fiction of law, accepted the same as conclusive proof of the fact that

16

the child born during the subsistence of the valid marriage, was a

legitimate child. It was the submission of the learned counsel for the

appellant-wife, that the determination of the Privy Council in

Karapaya Servai's case(supra) was approved by this Court in

Chilukuri Venkateshwarly vs. Chilukuri Venkatanarayana, 1954 SCR

424.

10. Learned counsel for the appellant-wife also invited our attention

to a decision rendered by this Court in Goutam Kundu vs. State of

West Bengal and another, (1993) 3 SCC 418, wherein this Court,

inter alia, held as under:

“(1) That Courts in India cannot order blood test as a matter of course.

(2) Wherever applications are made for such prayers in order to

have roving inquiry, the prayer for blood test cannot be entertained.

(3) There must be a strong prima facie case in that the husband must

establish non-access in order to dispel the presumption arising under

Section 112 of the Evidence Act.

(4) The Court must carefully examine as to what would be the

consequence of ordering the blood test; whether it will have the

effect of branding a child as a bastard and the mother as an

unchaste woman.

(5) No one can be compelled to give samle of blood for analysis.”

Reliance was also placed on the decision rendered by this Court in

Kamti Devi and another v. Poshi Ram, AIR 2001 SC 2226,

wherefrom, the following observations made by this Court, were

sought to be highlighted:

“9. But Section 112 itself provides an outlet to the party who wants

to escape from the rigour of that conclusiveness. The said outlet is, if

it can be shown that the parties had no access to each other at the

time when the child could have been begotten the presumption could

be rebutted. In other words, the party who wants to dislodge the

conclusiveness has the burden to show a negative, not merely that he

did not have the opportunity to approach his wife but that she too

did not have the opportunity of approaching him during the relevant

time. Normally, the rule of evidence in other instances is that the

burden is on the party who asserts the positive, but in this instance

the burden is cast on the party who pleads the negative. The raison

d'etre is the legislative concern against illegitimatizing a child. It is

a sublime public policy that children should not suffer social

disability on account of the laches or lapses of parents.

10. We may remember that Section 112 of the Evidence Act was

enacted at a time when the modern scientific advancements with

Dioxy Nucleric Acid (DNA) as well as Ribonucleic Acid (RNA) tests

were not even in contemplation of the legislature. The result of a

genuine DNA test is said to be scientifically accurate. But even that is

not enough to escape from the conclusiveness of Section 112 of the

Act, e.g., if a husband and wife were living together during the time of

conception but the DNA test revealed that the child was not born to

17

the husband, the conclusiveness in law would remain unrebuttable.

This may look hard from thepoint of view of the husband who would

be compelled to bear the fatherhood of a child of which he may be

innocent. But even in such a case the law leans in favour of the

innocent child from being bastardized if his mother and her spouse

were living together during the time of conception. Hence the

question regarding the degree of proof of non-access for rebutting the

conclusiveness must be answered in the light of what is meant by

access or non-access as delineated above.

11.....Its corollary is that the burden of the plaintiff-husband

should be higher than the standard of preponderance of probabilities.

The standard of proof in such cases must at least be of a degree in

between the two as to ensure that there was no possibility of the child

being conceived through the plaintiff-husband. “ (emphasis is ours)

11. Lastly, learned counsel for the appellant-wife, placed reliance on

the decision rendered by this Court in Sham Lal @ Kuldeep vs.

Sanjeev Kumar and others, (2009) 12 SCC 454, wherein it was inter

alia, held as under:

“Once the validity of marriage is proved then there is strong

presumption about the legitimacy of children born from that wedlock.

The presumption can only be rebutted by a strong, clear, satisfying

and conclusive evidence. The presumption cannot be displaced by

mere balance of probabilities or any circumstance creating doubt.

Even the evidence of adultery by wife which though amounts to very

strong evidence, it, by itself, is not quite sufficient to repel this

presumption and will not justify finding of illegitimacy if husband has

had access. In the instant case, admittedly the plaintiff and

Defendant 4 were born to D during the continuance of her valid

marriage with B. Their marriage was in fact never dissolved. There

is no evidence on record that B at any point of time did not have

access to D.” (emphasis is ours).

13. All the judgments relied upon by the learned counsel for the

appellant were on the pointed subject of the legitimacy of the child

born during the subsistence of a valid marriage. The question that

arises for consideration in the present appeal, pertains to the alleged

infidelity of the appellant-wife. It is not the husband's desire to prove

the legitimacy or illegitimacy of the child born to the appellant. The

purpose of the respondent is, to establish the ingredients of Section

13(1)(ii) of the Hindu Marriage Act, 1955, namely, that after the

solemnisation of the marriage of the appellant with the respondent,

the appellant had voluntarily engaged in sexual intercourse, with a

person other than the respondent. There can be no doubt, that the

prayer made by the respondent for conducting a DNA test of the

appellant's son as also of himself, was aimed at the alleged

adulterous behaviour of the appellant. In the determination of the

issue in hand, undoubtedly, the issue of legitimacy will also be

incidentally involved. Therefore, insofar as the present controversy is

concerned, Section 112 of the Indian Evidence Act would not strictly

come into play.

18

14. A similar issue came to be adjudicated upon by this Court in

Bhabani Prasad Jena vs. Convenor Secretary, Orissa State

Commission for Women and another, (2010) 8 SCC 633, wherein this

Court held as under:

“21. In a matter where paternity of a child is in issue before the

court, the use of DNA test is an extremely delicate and sensitive

aspect. One view is that when modern science gives the means of

ascertaining the paternity of a child, there should not be any

hesitation to use those means whenever the occasion requires. The

other view is that the court must be reluctant in the use of such

scientific advances and tools which result in invasion of right to

privacy of an individual and may not only be prejudicial to the rights

of the parties but may have devastating effect on the child.

Sometimes the result of such scientific test may bastardise an

innocent child even though his mother and her spouse were living

together during the time of conception.

22. In our view, when there is apparent conflict between the right to

privacy of a person not to submit himself forcibly to medical

examination and duty of the court to reach the truth, the court must

exercise its discretion only after balancing the interests of the parties

and on due consideration whether for a just decision in the matter,

DNA test is eminently needed. DNA test in a matter relating to

paternity of a child should not be directed by the court as a matter of

course or in a routine manner, whenever such a request is made. The

court has to consider diverse aspects including presumption under

Section 112 of the Evidence Act; pros and cons of such order and the

test of “eminent need” whether it is not possible for the court to

reach the truth without use of such test.

23. There is no conflict in the two decisions of this ourt, namely,

Goutam Kundu vs. State of West Bengal (1993) 3 SCC 418 and

Sharda vs. Dharmpal (2003) 4 SCC 493. In Goutam Kundu, it has

been laid down that courts in India cannot order blood test as a

matter of course and such prayers cannot be granted to have roving

inquiry; there must be strong prima facie case and the court must

carefully examine as to what would be the consequence of ordering

the blood test. In Sharda, while concluding that a matrimonial court

has power to order a person to undergo a medical test, it was

reiterated that the court should exercise such a power if the

applicant has a strong prime facie case and there is sufficient

material before the court. Obviously, therefore, any order for DNA

test can be given by the court only if a strong prima facie case is

made out for such a course.

24. Insofar as the present case is concerned, we have already held

that the State Commission has no authority, competence or power to

order DNA test. Looking to the nature of proceedings with which the

High Court was concerned, it has to be held that the High Court

exceeded its jurisdiction in passing the impugned order. Strangely,

the High Court overlooked a very material aspect that the

matrimonial dispute between the parties is already pending in the

19

court of competent jurisdiction and all aspects concerning

matrimonial dispute raised by the parties in that case shall be

adjudicated and determined by that court. Should an issue arise

before the matrimonial court concerning the paternity of the child,

obviously that court will be competent to pass an appropriate order

at the relevant time in accordance with law. In any view of the matter,

it is not possible to sustain the order passed by the High Court. “

(emphasis is ours)

It is therefore apparent, that despite the consequences of a DNA test,

this Court has concluded, that it was permissible for a Court to

permit the holding of a DNA test, if it was eminently needed, after

balancing the interests of the parties.

15. Recently, the issue was again considered by this Court in

Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik and another,

(2014) 2 SCC 576, wherein this Court held as under:

“15. Here, in the present case, the wife had pleaded that the

husband had access to her and, in fact, the child was born in

the said wedlock, but the husband had specifically pleaded

that after his wife left the matrimonial home, she did not

return and thereafter, he had no access to her. The wife has

admitted that she had left the matrimonial home but again

joined her husband. Unfortunately, none of the courts below

have given any finding with regard to this plea of the husband

that he had not any access to his wife at the time when the

child could have been begotten.

16. As stated earlier, the DNA test is an accurate test and on

that basis it is clear that the appellant is not the biological

father of the girl child. However, at the same time, the

condition precedent for invocation of Section 112 of the

Evidence Act has been established and no finding with regard

to the plea of the husband that he had no access to his wife at

the time when the child could have been begotten has been

recorded. Admittedly, the child has been born during the

continuance of a valid marriage. Therefore, the provisions of

Section 112 of the Evidence Act conclusively prove that

Respondent 2 is the daughter of the appellant. At the same

time, the DNA test reports, based on scientific analysis, in no

uncertain terms suggest that the appellant is not the

biological father. In such circumstances, which would give

way to the other is a complex question posed before us.

17. We may remember that Section 112 of the Evidence Act

was enacted at a time when the modern scientific

advancement and DNA test were not even in contemplation

of the legislature. The result of DNA test is said to be

scientifically accurate. Although Section 112 raises a

presumption of conclusive proof on satisfaction of the

conditions enumerated therein but the same is rebuttable.

The presumption may afford legitimate means of arriving at

an affirmative legal conclusion. While the truth or fact is

20

known, in our opinion, there is no need or room for any

presumption. Where there is evidence to the contrary, the

presumption is rebuttable and must yield to proof. The

interest of justice is best served by ascertaining the truth and

the court should be furnished with the best available science

and may not be left to bank upon presumptions, unless

science has no answer to the facts in issue. In our opinion,

when there is a conflict between a conclusive proof

envisaged under law and a proof based on scientific

advancement accepted by the world community to be

correct, the latter must prevail over the former.

18. We must understand the distinction between a legal

fiction and the presumption of a fact. Legal fiction assumes

existence of a fact which may not really exist. However, a

presumption of a fact depends on satisfaction of certain

circumstances. Those circumstances logically would lead to

the fact sought to be presumed. Section 112 of the Evidence

Act does not create a legal fiction but provides for

presumption.

19. The husband's plea that he had no access to the wife

when the child was begotten stands proved by the DNA test

report and in the face of it, we cannot compel the appellant

to bear the fatherhood of a child, when the scientific reports

prove to the contrary. We are conscious that an innocent

child may not be bastardised as the marriage between her

mother and father was subsisting at the time of her birth, but

in view of the DNA test reports and what we have observed

above, we cannot forestall the consequence. It is denying the

truth. “Truth must triumph” is the hallmark of justice.”

(emphasis is ours) This Court has therefore clearly opined,

that proof based on a DNA test would be sufficient to

dislodge, a presumption under Section 112 of the Indian

Evidence Act.

16. It is borne from the decisions rendered by this Court in

Bhabani Prasad Jena (supra), and Nandlal Wasudeo Badwaik

(supra), that depending on the facts and circumstances of the case,

it would be permissible for a Court to direct the holding of a DNA

examination, to determine the veracity of the allegation(s), which

constitute one of the grounds, on which the concerned party would

either succeed or lose. There can be no dispute, that if the direction

to hold such a test can be avoided, it should be so avoided. The

reason, as already recorded in various judgments by this Court, is

that the legitimacy of a child should not be put to peril.

17. The question that has to be answered in this case, is in respect

of the alleged infidelity of the appellant-wife. The respondent-

husband has made clear and categorical assertions in the petition

filed by him under Section 13 of the Hindu Marriage Act, alleging

infidelity. He has gone to the extent of naming the person, who was

the father of the male child born to the appellant-wife. It is in the

21

process of substantiating his allegation of infidelity, that the

respondent-husband had made an application before the Family

Court for conducting a DNA test, which would establish whether

or not, he had fathered the male child born to the appellant-wife.

The respondent feels that it is only possible for him to substantiate

the allegations levelled by him (of the appellant-wife's infidelity)

through a DNA test. We agree with him. In our view, but for the

DNA test, it would be impossible for the respondent-husband to

establish and confirm the assertions made in the pleadings. We are

therefore satisfied, that the direction issued by the High Court, as

has been extracted hereinabove, was fully justified. DNA testing is

the most legitimate and scientifically perfect means, which the

husband could use, to establish his assertion of infidelity. This

should simultaneously be taken as the most authentic, rightful and

correct means also with the wife, for her to rebut the assertions

made by the respondent-husband, and to establish that she had not

been unfaithful, adulterous or disloyal. If the appellant-wife is

right, she shall be proved to be so.

18. We would, however, while upholding the order passed by the

High Court, consider it just and appropriate to record a caveat,

giving the appellant-wife liberty to comply with or disregard the

order passed by the High Court, requiring the holding of the DNA

test. In case, she accepts the direction issued by the High Court,

the DNA test will determine conclusively the veracity of accusation

levelled by the respondent-husband, against her. In case, she

declines to comply with the direction issued by the High Court, the

allegation would be determined by the concerned Court, by

drawing a presumption of the nature contemplated in Section 114

of the Indian Evidence Act, especially, in terms of illustration (h)

thereof. Section 114 as also illustration (h), referred to above, are

being extracted hereunder:

“114. Court may presume existence of certain facts – The Court

may presume the existence of any fact which it thinks likely to have

happened, regard being had to the common course of natural

events, human conduct and public and private business, in their

relation to the facts of the particular case.

Illustration (h) - That if a man refuses to answer a question which

he is not compelled to answer by law, the answer, if given, would

be unfavourable to him.”

This course has been adopted to preserve the right of individual

privacy to the extent possible. Of course, without sacrificing the

cause of justice. By adopting the above course, the issue of

infidelity alone would be determined, without expressly disturbing

the presumption contemplated under Section 112 of the Indian

Evidence Act. Even though, as already stated above, undoubtedly

the issue of legitimacy would also be incidentally involved.”

25. Thus having considered the legal provisions and case law

regarding proof of fact as to whether illegitimate son was born out of

22

cohabitation with another person, we find that Plaintiff-appellant has

committed a procedural error in plaint by not impleading Mahesh Khare

'Jija' of Defendant-respondent as a party to the Divorce Potion even when

the same was mandatorily required under Rule 6, of Rules 1956. Further

no application was filed by Plaintiff-appellant before Court below to

ascertain the D.N.A. Character of illegitimate child and Mahesh Khare

'Jija' of Defendant-respondent. In the absence of aforesaid, Court below

was totally handicapped to consider the aforesaid issue pressed by

Plaintiff-appellant for annulment of marriage. Court below thus did not

commit any illegality in refusing to grant a decree of divorce to Plaintiff-

appellant on this ground.

26. Lastly, it was pleaded by Plaintiff-appellant before Court below

that parties have been living separately since January, 2002, as such,

marriage of parties has broken down irretrievably. It was the case of

Plaintiff-appellant that defendant-respondent without taking consent of

plaintiff-appellant and out of her own free will left her matrimonial home

in January, 2002 and is residing with her parents since then. In spite of

repeated request made by Plaintiff-appellant defendant-respondent has

refused to live with Plaintiff-appellant in her marital home. Reliance is

placed upon judgements in Sukhendu Das VS. Rita Mukherjee, 2007

(9) SCC 632. Reliance is placed upon paragraphs 6 and 7 to buttress the

submission that in present case also, wife defendant-respondent is living

separately since January, 2002 and inspite of knowledge of divorce suit

has refused to participate in the same, consequently marriage of parties

has broken down irretrievably and forcing appellant to stay in a dead

marriage would itself constitute mental cruelty. Para 6 and 7 of the

judgement in Sukhendu Das (Supra) read as under:

“6. Mr. Raja Chatterjee, learned counsel appearing for the Appellant

submitted that the Respondent deserted the Appellant about 17 years

back and she refused to come back and live with him. Apart from the

allegation of desertion, the learned counsel also alleged mental cruelty

on the part of the Respondent who threatened the Appellant in the year

2005 that she would get a criminal case filed against him if he did not

stop attempts to get the divorce. The learned counsel further submitted

23

that the Appellant and the Respondent have been living apart due to

matrimonial discord since 17 years and for all practical purposes the

marriage has broken down.

7. The Respondent, who did not appear before the trial court after

filing of written statement, did not respond to the request made by the

High Court for personal appearance. In spite of service of Notice, the

Respondent did not show any interest to appear in this Court also. This

conduct of the Respondent by itself would indicate that she is not

interested in living with the Appellant. Refusal to participate in

proceeding for divorce and forcing the appellant to stay in a dead

marriage would itself constitute mental cruelty [Samar Ghosh v. Jaya

Ghosh, 2007 (2) R.C.R (Civil 595; 2007 (2) R.C.R. (Criminal) 515 :

2007 (2) Recent Apex Judgements (R.A.J) 177: (2007) 4 SCC 511

(para 101) (xiv) . The High Court observed that no attempt was made

by either of the parties to be posted at the same place. Without entering

into the disputed facts of the case, we are of the opinion that there is no

likelihood of the Appellant and the Respondent living together and for

all practical purposes there is an irretrievable breakdown of the

marriage. ”

27. Court below also considered above mentioned ground. Court below

upon evaluation of evidence on record, concluded that Plaintiff-appellant

had previously filed Marriage Petition No. 258 of 2003 for grant of

divorce. Defendant-respondent appeared in aforesaid marriage petition.

She appears to have subsequently filed an application under Section 24 of

Act, 1955 for grant of interim maintenance. Same was allowed. However,

on account of failure of Plaintiff-appellant to pay interim maintenance to

defendant-respondent, earlier Marriage Petition NO. 258 of 2003 filed by

Plaintiff-appellant came to be dismissed. Restoration application filed by

plaintiff-appellant was also rejected. That apart, Defendant-respondent

had herself filed Case No. 448 of 2003 in the Family Court, Gorakhpur

for restitution of conjugal rights as contemplated under Section 9 of Act,

1955. As such, it is established that Defendant-respondent has not herself

abounded Plaintiff-appellant. To the contrary on account of conduct of

Plaintiff-appellant, Defendant-respondent has been forced to live

separately. On the facts as noted above, it cannot be said that marriage

between parties has broken down irretrievably. Consequently, we have no

hesitation to hold that finding recorded by Court below that marriage

between parties has not broken down irretrievably, does not suffer from

any illegality, perversity or being erroneous. Defendant-respondent is

24

legally wedded wife of plaintiff-appellant. As such, plaintiff-appellant is

legally and morally bound to maintain his wife. Record shows that

plaintiff-appellant has miserably failed in discharging his moral and legal

obligation.

28. In view of discussion made herein-above, appeal fails and is liable

to be dismissed. It is accordingly dismissed. Cost made easy.

Order Date :- 20.09.2019

Arshad